VI e: o 7 /A IMAGE EVALUATION TEST TARGET (MT-3) 1.0 I.I IIIIM IIIM ili 1 2.2 •- Ilia III 1.8 Photographic Sciences Corporation 1.25 1.4 1.6 ^ 6" — ► ^^ .•V s V \\ r\^ 'O -^^ \ . ^ ' John Fakouhar liAiN-Appointed November loth, 1,S,S7. Albert Uulhwoou KicHARixs-Appointed May 1st, 18'Jli. RHCORDKR. Hon. FRANCI.S J^on.scHAU. JoHNsoN-Septetnber 3rd, 1870-June 1st, HI Allan Allan. INDEX OF THE REPORTED CASES IN VOI.UMKS Temp. Wood and I - \ll of The Manitoba Law Ucports. A., Re A. 1'.., ail Attonicv, Kc Alnl! V. Allan . ." Ahfll V. Craiy; Acme Silver Co. v. I'crrctt '. A'lanis V. II nek in Adams, llntchinj^s v Adams and Jackson. Reg. v Adamsoii, Canadian f'.ank of Com nierce v Adamson, Imperial Hank v . . '.'. Adamson, IMclIvanie v Ady V. Harris ' I Aetna Life Jnsnrance Co. v. Sharp Ai;nc\v V. ]\Iorpliv ] _ A^ni'W, W'liitla v.. Ait ken v. Dolierty , .. '" All Saints'. Martin v. . . . Allan. 1^. Allen. Ahell v '.'.'.'.'.'. Allan V. Cliuiylier Allan. Commercial Bank of ilanitoba v. Page of Cnluiiin Vol. V..I. of Digest. f) 181,389,601 54 • 3 3 If) 5-' • 3 4. Co. re Cirav 9 Allan V.' Man. cS; X.-W. R \ . Co. re ( irav, Xo. 1 lo Allan V.' .Man. .S: X.-W. Ry. Co. rv (Iray. .\o. 2 lo Allan V. McKay T.W. Allen V. Dickii' 2 Alien. Monitor Plow Co. v T.W. Alloway, Scluiltz v lo Allowav V. Campbell 7 '- 8 American I'lnmbinj^ Co. v. Wood .... 3 Anderson, lionchette v T.W. Anderson v. Johnson 6 Anderson, Landed Banking & Loan Co. V 3 Anderson, Reg. V T.W. Anderson, N'ineberg v 6 Anderson, Watts v 5 Andrew, Credit Foncier Franco-Cana- dien v 9 Angus, Imperial Bank v i Anly V. Holy Trinity Church 2 3 Anon, Re 3 Archibald v. Goldstein i Archibald, Schultz v 8 Archibald v. Youville 7 Ardagh, Re 4 Armit v. Hudson's Bay Co 3 Armit, Morris v 4 Armitage v. \'ivian 2 Armstrong, Elliott v 6 Armstrong, Phillips Electrical Works v. 8 Armstrong v. Portage, Westbourne & N.-W. Ry. Co I Arnold v. Caldwell i Arnold v. McLaren i Arnold, Wright v 6 I'i.RC (.f Ciiluinii V..I. of Digest. 137 4S5, (kx) 143 596. 598 m «J^§ 106 483. 599 xaa XIX 671 61 5«8 X65 fltX 506 m 334 4a 9 64 "3 48, 49 370 m 335 2qi U 248 464, 468 193 ^^l 667 8,45, 146 313. 507 284 473 664,667 509 191. 194 529 391.392 152.307 360 3 255 48 344 141 81,155 69,28c 313 410 I i I & ^ 137 671 528 664 9 48,49 141 69,28c 410 1 INDEX OF CASES. IX I PaRc of Vol. Vol. Ashdown. I'lddily v il cejc Ashdoun v. IXdirick 2 2x2 ; 4 139, 174, ^50 Aslulowii V. Manitoba I'Vcr Press Co.. 6 578 Ashdoun v. Manitolia Land Co 3 \\± Ashdown v. Montgoniery 8 ^20 Aslidown V. Nash 7, ^7 Assiniboia Election. Re 4 318. 346 Assiniboia. W'allis v ^ go Assinil)oia, McLellan V 5 127,26s joo Assinil)oine X'alley Stock and Dairy ' • - . • - ^ l-arniing C... Re 6 105, 184 Atchcson V. Rural Municipality of Port- af>:e la Praiiic 9 ^^^ 10 39 Ai.'unson, liennett v 10 4g Attorney, Re \ 3 -fg " 6 19, 108, 181 . 398.601 Attorney-General v. Fonscca 5 173^ 3^0 Attorney-General v. Hudson's Bay . <^" T.W. 200 Attorney-General v. Macdonald .... 6 77 Attorney-General V. Richard. ... 4 ^\i Attorney-General V. Ryan 5 gj Attorney-General V. Wright. . . . -j rn-T Austin. Kennedy V ' t .Ao Axford, Stobart V q ^,1 V lo Babinerton. Monkman v. . . e ^^^ Badgley, McCarthy v ■.■.■.■."■ 6 III Bailey v. Fortier . . ° 3?° Bailey. MoWilliams v." .V .'. I X Bam and Chambers. In re . . "' u '^"0 P.ain V. Torrance " ■. ^^ Baird. Morrice v ^ ^^ Baker. Shorev v. ? ^f Bakeuell V. McMicken!. , ^^^ «J 244 CollllllM of Digi'.-.t. 50. 294 6, 442 553 453 393. 48f) 260, 542, 544 644, 686 T56 498. 502 503. 670 52. 53 9 180 433 520 55. 635 55. 524 238. 369. .VI .373. 376. 471 566. .599. 633 369, 373. 526 545 450 61 547 n INDEX OF CASES. Vol. Balfour v. Drummund 4 5 Halfour, I'".\ans v 3 Bank uf JJritish Xorth America v. Mcintosh II Bank oi IJritish North America v. Munro 9 Bank of Hamilton v. Gillies 12 Bank of Montreal v. Black 9 Bank of Montreal v. Condon 11 Bank of Montreal v. Cornish TAV. I'ank of Montreal v. Poyncr 7 Bank of Nova Scotia v. lirown .... 2 Bank of Nova Scotia v. llojie 9 Bank of Nova Scotia, Jackson v 9 Bank of Nova Scotia v. Lynch ..... i Bank of Nova Scotia v. McKeaid . . i Banque d'llochelaj^^a's Claim, Re . . . . 10 Bancme d'Hochelat,^i v. Merchants' Bank of Canada 10 Bannatyne, Paisley v 4 Bannerman. Re 2 Tiarher v. Ifoskins T.W. Barher, IMcKay v 3 Barbour, L'nion Hank v ' 12 Barker. Man. & N.-W. Loan Co 8 BarkwcH's Claini. In re 11 Barnes, Repf. v 4 Barr v. dark 5 Barrett, Orr v 6 Barrett v. Winnipeg 7 Hartlett, Case v 12 Bartlctt, .McMillan v 2 I'askerville, Sawyer v 10 I'ateman v. Merchants' Bank of Canada i Batcman, Saul v 6 Bath.c;-ate v. Merchants' Bank 5 Baynes v. Metcalf 3 Baynes v. IMetcalf 4 Beach v. Graves I Beale, Rclt. v 11 Beautiful Plains, Re 10 Bechcr v. McDonald 5 Beckel, Hopkins v 4 Page of Column Vol. of Digest. 189, 467. 168, 407, 540 1,242 243 503 87, 287 151 530. 670 495 66 439 330 366 316,328,677 272 14,381,413 270 195 224 426 37 389 75 180 547 ^75 332 171 361 255 377 594 26^ 41 166 296 494 448 130 185 300 273 568 280 62, 374 652 260 330 189 210 59.21 438 176 8.=; 26 448 T30 223 368 408 INDEX OF CASES. xi C(jluiun of Digest. 8, 407, 540 87, 287 530, 670 66 330 5, 328, 677 ^.381,413 195 426 389 547 594 185 568 330 59. 21 176 368 i'ccch, Elliott V 3 iieenier v. Inkster 3 Belch V. Man. & X.-W. Ry. Co 4 P.ell V. North\V(j()(l 3 Bellamy, Waters v 5 Benard v. AlcKay 9 Bennett v. Atkinson 10 iiers^man's Claim. Re 8 Bergman v. Smith 11 lU'iitlcy V. Bentley 12 Ilernardine v. North Dufterin 6 Bernhart v. iMcCutcheon 12 Berryman, Renwick v 3 IL'rtrand v. Canadian Rubber Co 12 Bertrand v. lieaman u Picrtrand v. Hooker 10 Bertrand v. Magnusson 10 Bertrand v. I'arkes 8 Ik'sant. .'^prague v 3 I'.evnon, Irwin v 4 I'.ibl)y, Re [[ 6 Bigj^s. .Mc.Malion v. . , 4 P.iggs. Reg. V 2 Bigo-s V. Wood 2 Birtle, Wood v 4 Tiishop l-^ngraving Co.. Re g P.ishop Engravinlack V. Kennedy T.W Black, McKinnon v. . t I'.iack. Wolff V "." .".' .■; ;.■ ;■ i iilackstone, Reg. v 4 Blair v. Smith ' ......' i P.lal.e V. Manitoba :\Iilling Co. . . W ' " 8 lilanchard. Cleaver v. . . '. \ 4 T'lancliard. 1-oote v 4 Blanchard v. Scanlon .. .. V. .. . . .' t I'.lanchard. Scottish Manitoba Invest- " ment Co. v 2 Blanchard, Stevenson V '. 2 Podfly V. A.shdown .. .. . ." "' "" "' jj Bole V. Mahon jq 'age of Colunin Vol. of Digest. 213 534 628 198 >43 514 120. 629 246 6. 2c>5 156 75. 115 48 556 463 364 427 436 124 88 143 394 83. ()09 387 27 318 205 272 445 3. 328 490 297 175 43. 325. 326 519 10 472 25.214 84 18 2f'i 25- 70. 75 415 63 420 m 137 586 26 5 439 144 362, 625 243 243 296 5 106, 514 427 392 464 460 13 665 154 78 555 2T 150 676 I" xii INDEX OF CASES. Vol. Bole V. Rose lo Jlolton, Man. & X.-W. Loan Co. v. . . 9 ]>onneau, W isliart v 5 Ijonny v. Bonny 9 Booth V. Moffatt 11 Bose V. Robinson T.W. Boiighton V. Hamilton Provident & Loan Society 10 Bouchettc V. Anderson T.W. Boultbee v. Shore T.W. I Bower, Minaker v 2 Boyd V. Irwin 3 Boyd. Snider v li Boyce v. ^McDonald 9 Boyle, Evans v 5 Boyle V. Wilson 9 Bradbury v. Moffatt i Bradbury v. McLeish i Bradbury v. Moore 5 Brand v. Green 12 Brandes, Robertson v 11 Brandon Bridge. Re 2 Brandon City Election, Re 8 Q Brandon, re Scott and 10 Brandon v. Wishart 4 Brandrith v. Jackson 2 Braun v. Davis, The Northern Assur- ance Co., garnishees 9 Braun v. Hughes 3 Braun. Ward v 7 Brayficld v. Cardiff 9 Bready, Rutherford v 9 Breden v. Lyon T.W. Brenchley v. McLcod 12 Bremner, Re 6 Brice, Reg. v 7 Brett, Orton v 12 Brimstone v. Smith i Brisbois v. Poudrier I British Canadian Loan and Investment Co., Graham v 12 I'agu of Vol. 633 153 132 280 25 368 683 64 326 22 265 90 398 297 180 92 103 49 337 264 14 505 5" 494 453 129 534, 539 177 229 302 29 50 647 73 627 448 302 29 244 139 Column of Digest. 543 677 29- 305 209 557 236,631 48,409 149,611 534 242 678 57- 136,343 117 261 257 262 21.275 335. 341 614 440 141 185.413 45 301,327 INDEX OF CASES. xiii Column of Digest. 543 677 29. 305 209 557 236,631 48.409 9, 149,611 534 242 678 7. 136,343 117 261 257 262 21.275 335. 341 614 440 141 ^85.4i3 45 301.327 Vol. British Canadian Loan Co., Ripstein v. 7 iiritish Knipirc, Etc., Assurance Co. v. Luxton n British Linen Co. v. >IcEwen 6 _ .... 8 I'.rittlchank v. (iray-Jones :; Britton, Cowan v o l^)rock V. D'Aoust . . . 9 Brock, Fisher v g P.rooks, \\ ashburn & Moen Manufactur- ing Co. V 2 Brown, Bank of Nova Scotia v 2 l^rown, Burke v o Brown v. Canachan Pacific Railway Co. 3 Brown, Re Insher and [ i Brown v. Harrower ^ Brown V. Hooper . * . -, Brown v. Mat^nus ...".' g Brown, O'Connor v " " ' c Brown v. Peace " ." .' .' " jj Brown, Paterson v . [[ [ n Brown v. Portage la Prairie Manufac- turing Co ^ Brown V. Shantz ... 7 Browning V. Ryan " '" , Brunswick-Balke Co. & Martin." Re .' ! 3 Br\an v. Freeman 7 Bryant. Reg. v ' ^ Brydges, Fullerton v . .'. " ' " ' jq Brydon, Imperial Bank v. . . . 2 Brydon v. Lutes ' ' ' ' q Buchanan v. Campbell . . . 5 Buchanan, Re ', " ' " j^ Buchanan, Reg. v .. .. ' '' j^, Buckman v. Stewart . . tt Budd V. McLaughlin . . jq Building & Loan Assoc't'n. Vaughan V. 6 Bulmer. Union Bank v. . . , Eurbank v. Webb ... . Burdett V Canadian Pacific' Rv." Co.." ." 10 Burgess, Owens v. . , ' „ Burke V. Brown ... g Papc of Column Vol. of Digest. 119 169 563 29, 292 9. I73-4I3 414 415.530 99,214 33 350 175 195 424 137 44 224 305 496 97 39fJ 384. 533, 535 116 0. 441 279. 3^2 86, 88, 89 7, 46, 47, 686 391 263 409 321 612 245 393 42 179 486 376 328 384 57 48, 49 431 117 463 1.U.465 303 394.631 619. 591 190 491.625 451.588 75 130 289 380 364 370 5 94 7$ $$s 186 ft r XIV INDEX OF CASES. Vol. Burke, Ilorscir.an v 4 IJurke, I'olson \ 5 Burke, Ref,^ v 6 Burnet, Cana(.i;m Pacific Ry. Co. v. . . 5 Burnhani, Douj^las v 5 Burnham v. \\'altoii 2 . 3 Burns. Tait v 8 Burridge v. Ernes 2 Burrow s, Howard v 7 Burt V. Clarke 5 P>ushnell, Hooper v 5 Bycrs, McMillan v 3 Cadieux, Leferriere v 11 Calder \-. 1 )ancey 2 ^ Calder, Hutchison v i Caldwell, Arnold v 5 Cali.jary, Canadian Pacific Ry. Co. v. . . i Calloway v. Pearson 6 Calloway, Ret,^ v 3 Calloway, Tait v i 2 Cameron v. Cameron 3 Cameron v. Mcllroy i Cameron v. Perry 2 Cameron, Walker v 2 Cami)l)ell, Re 5 Canipl)ell, Alloway v 7 Cami)])ell v. Alloway 8 Cam])bi.>ll, Pniolianan v 6 Cami)l)rll, D.ividson v 5 Cam])l)fll, Down v 7 Cani|)l)ell v. Cienimtll 6 Campbell v. lleaslip 6 Canada Pai)er C"o., .MoMaster v I Canada Permanent Loan & Savings Co. V. Donore il Canada Permanent Loan & Savings Co. V. East Selkirk 9 Page of Column Vol. of Digest. 245 31 121 395 261 180 394 204 294 19 232 511 181 LSo 300,409,517 300 361 76 175 3-\S -'3 402. 543. erx. 17.46 37 81 ■ tss 364 374 297 102. 333 289, 312 308 51' 97, 198, 241 288, 341 480, 484 231 95 262, 274 3^: 506 581, 5^^*; 224 303 . 250 ' 34 3. =^5 33; 64 521 309 120 1.1= 331 33^ % INDEX OF CASES. XV Column of UigL'st. 394 294 300,409,51; 402, 543, 66., 374 516 288, 341 480, 484 3'3: 581, 5^V 33; 521 3.V Vol Canada Pcrniancnt Loan & Savings Co. V. llilliard 3 Canada rernianont Loan & Savings Co. V. .Merchants' Hank j^ Canada ScttkTs" Loan Co. v. luillcrton Ij Canadian JJank of ConinK-rcc v. Adam- son I Canadian l!ank of Connncrce, Federal iSank V 2 Canadian Lank of Connncrce, Hector v. 11 Canadian iiank of Commerce v. Xorth- uood - Canadian Pacific Ry. Co., Re 7 Canadian i'acitic Rv. Co. v. L.rown . . i, * .' 4 Canadian Pacific Ry. Co. Burdctt v. . . 10 Canadian Pacific Ry. Co. v. Burnett . 5 Canadian Pacific Ry. Co. v. Calgary . . 5 Canadian Pacific Rv. Co. v. Connvallis 7 Canadian Pacific Rv. Co. re Douglas lots 6 Canadian Pacific Ry. Co. Ferris v. . . . 9 Canadian Pacific Rv. Co. v. Forsyth... 3 Canadian Pacific Ry. Co., Caudrv'v. .. ri Canadian Pacific Rv. Co., Harvey v 3 Canadian Pacific R'v. Co., Henry v. ." '. i Canadian Pacific Ry. Co., Holmes v. . ! 5 Canadian Pacific Ry. Co.. ALinitoha Mortgai^e & Investment Co. v . i Canadian Pacific Rv. Co., ^logijv v ' " 7 Canadian I'acific J^v. Co., McCaffrev v i Canadian Pacific Rv. Co.. McDonald v 7 Canadian Pacific Rv. Co.. McFic v ^ Canadian Pacific Rv. Co.. McGinnev v 7 Canadian Pacific Rv. Co. v. Northern - Pacific & Manitoba Rv. Co. . . e S ■ "' Canadian Pacific Ry. Co., Pear.snn v... i^ Cana.han Pacific Rv. Co., Rajotte v ? Canadian Pacific RV. Co., Roach v ' " ? Canadian Pacific Ry. Co., School Trus- tees of Winnipeg v. . 2 Canadian Pacific Rv. Co.. Shaw' v " ' " c; Canadian I'acific Rv. Co., White v.'.'. 6 Canadian Pacific Rv. Co., Winnipeg v 12 V:\fn. of Vol. m 283 3-7 Ci'lumn of Digest. 382 308 406 n 257 3^0 224, 34-' 183 389 92, 139 496 396 5 395 634 37 665 I 647. 655 598 591 501 45 395 69 43- 266 210 346 285 J09 350 423 6 ^ 151 301 TL3..V2 373- 633 1 12 297. 36.S LSS 163 198, 334 169 58i ■Mm XVI INDEX OF CASES. Vol, Canadian Pacific Ry. Co., Younj; v. . . i Canadian Rubber Co., licrtrand v 12 Cardiff, Bayfield v y Carey, Curran v 4 Carey, CJsborne v 5 Carey v. Wood 2 Carey and Lot 65, sub-div. Lot 31J E.. St. John, Re 9 Carley, Alerciiants' Bank v 8 Carlev, Sparhani v 7 '- ■ 8 Carman, 'The Xor'-West Fanner v. . . . 6 Carruthers v. Hamilton Provident and Loan Society 12 Carruthers v. W'aterous 4 Car.^caden v. Molsons Bank 8 Carscaden v. Philion 9 Carscaden v. Zimmerman 9 Cartier Election, Re 4 Case V. Bartlett 12 Case V. Laird 8 Case V. Stephens 6 Caston V. Scott i Cauchon, Green v 3 Cauchon, City of Winnipeg v T.W. Cavelier, Reg. v 11 Central Electric Co. v. Simpson .... 8 Chadwick, Gibbons v 8 \ 9 Chadwick v. Hunter i Chalmers, Quintal v 12 Chambers, In re Bain and 11 Chambers, Foulds v 1 1 Chambers, Hanbury v 10 Chambers, Leacock v 3 Chamberlain, Reg. v 10 Chambre, Ferguson v 2 — ■ — 3 Champion v. AIcKenzie 4 Charlebois v. Great North- West Central Railway Co o Charlebois v. Great North- West Central Railway Co n Page of Cdlumn Vol. of UlgCsl. 205 27 302 450 ^^7 32. J90 7. (H2 483 668 25S 611 246, 448 118 60 481 402 176 451 135 359 102, 178 420. 4_'5 i^7 2;;4, 256, 260 280 409 204,461 128,426 552 ^Si 117 ■74 248 350 333 94 403 209, 213 474 39. 109, 363 231 550 300 167 64 c 261 184, 186 574 158 466, 469 1,60, 286. 448 179. 533. 57-^ 597.641 Clark T35 1 INDEX OF CASES. xvii Column of Digcsi. 7, 642 668 481 J 76 420. 4J5 [, 256. 260 409 128,426 631 174 403 466, 469 '. 533. r>7^ 597,641 Vol. Cli.-iric'l)uis. iMcDonakl v .... 7 Chaz V. Les Sisterciens Rcfonnes .... ij ' licster, Gerric v [ c Clievrier, Gouans v 7 ('liish(4in, Labatt v '. ' ' ' -' C Iiisholin, Rc'^rjna v. .......... 7 Clnibhuck, Grisdalc v '.' .'.' "' i City (if London Fire Insurance Co.', Morrison v ' ^ Clark. I!arr v Clark, Bun v - Clark, city of Winnipeg v T W'' C lark. Dauphinais v , Clark V. I'lverctt .". V Clark, Cuthric v. . Clark, Maxwell v... . '. '.] \\ [] '/ " ^^ Clark. McMicken v.. Ontario Bank garnishees j -^y Clark V. Murray " ' T w" Clark v~S^7. ^■^^: Clay V. (iill ("leaver v. Municipality of Bianchard " ' ^4 Uenient, Imperial Loan & Investment ^o. v., re Coulter, ... .. Clement, imperial Loan & ■lin-Jstmen't to. v.. re .Murrav .... ,. Clement. Kircli.iffer 'v Clement, Lambert v " n'r'^'"!' ll'^'^'y '^^^""factu'rin;^' Co. V '9 ^Clement, Movvat v ^ «C!cment, McPbail v ^ Clenionsv. St. Andrew's ,J Chtford V. Log-an Clouq;her, Allan v ^ Clous:her. Lyncli v ^^ Cloutier, Reg-, v. . . ^ Cloug-her v. Scoones ^^ Cloutier, Re " ' -^ Coburn V. McRnbbie " Cochrane v, McFarlane .'. ^ |Cochrane Manufacturing^ Co. v.Harmer | PaRc of Column Vol. of Digest. 35 330 306 258 62 194 a6 502 613 202 222, 225 130 ^50 56 129. 5-'3 225 229 ^^15 318 406 157 119 207. 233 127 281 32, 348 584,621 465 3. 3-'8 464 508 III 428 445 460 519 3.^9 585 165 . 245 640. 666 423 88 327 293 183 238 393 220 492 375 tm 293 391 m 165, 169 iti XVIll INDEX OF CASES. Vol. Codd, Howland v 9 Colby, llutchiiisoii V 12 Coldwcll, Sifton v 1 1 Collins, Reg. v 5 Collins V. Ross 7 ("olqnlioun v. Driscoll 10 C(jl(iulu)un V. Seagram 11 Comber v. Lc May T.W. Commercial Hank of Manitoba, Re ... . 9 Commercial Hank of Manitoba v. Allan. 10 Commercial Hank of Manitoba v. I'.issett 7 Commercial I'.ank of .Manitoba, In re I'.arkwell 11 Commercial lUmk of Manitoba. Re Claims for interest 10 Commercial I'.ank of Manitoba, Gillies v. 9 10 Commercial I'.ank of Manitoba, La Ban([ne d"! iochelaya V to Comnurcial Dank of Manitoba, Rev. Dr. Rojjertson v 10 Commercial Bank of Manitoba v. Rokebv 10 Commercial Uniow Assurance Co., Ro- gers V 10 Conboy. Doll v 9 Condon, I'.ank of Montreal v li Confederation Life Association v. Mer- cbants' Bank 10 Confederation Life Association v. Moore 6 Confederation Life Association, Re Moore and 9 Congregational Church v. Cummins . . 4 Conklin, Farmers' & Traders' Loan Co.v. T Conklin, Halstead v 3 Conklin, Martindale v i Conley v. Wellbanrl 3 Connell, London & Canadian Loan & Agency Co. v ti Connery, Flour City Bank v 12 Connor, Reg. v 2 Conway v. Scott 3 Page of Vol. Ciihunii of Uigf>t. 435 3"7 653 136 581 254 255 6()(j 339 3-25. 356 35 342 330 440 15^' 66, 70 5S6 71.557 494 42 187 165 460 59. 62 171 59.62 61 158 281 14. 79 667 t8s 366 67 473 162 683 453 374 t8t 8 338 207 305 115 305 235 557. 636 603 Crc( I INDEX OF CASES. XIX C'lUiinn of UigL'.-7.633 330 95 TQO 546 27, 606 479 70 329. ,^84 402. 480 158.417 534 442 571 373 398 567 523 116 182 150 188 475 T49 520 419 513 422 50 r 8 360 406 XX INDEX OF CASES. Vol. C'lmiiiiiis V. 'I'riistcfs of Cungregatioiial C liurcli 4 Ciini.iiimhain, .Macdouald v 3 C'ltnan v. I'arty 4 CiUTaii V. Xortli Xorfolk 8 Clinic V. Rapid L'ity l-armcrs" Eleva- tor Co 12 Cursitor, Uc 9 Curtis, Wark v 10 Cypress Election, Re 8 Dahl, Miller v 9 10 Daly, Manitoba Mortgage & Investment Co. V 10 Daly V. W liite 5 Dancey, C alder v 2 ' 4 Dandy, Watson v 12 D'Aou.st. Ikock V 9 Darrooh. I^raser v 6 Dauphinais v. Clark 3 Daviraun v.. Northern Assurance Co., garnishees 9 Davis, Mcllroy v i Day V. Rutledgc 12 Deacon, McDonald v 4 Dean and Chapter of St. John's Cathe- dral V. Macarthur 9 Dcdcrick, Ashdown v 2 Dederick v. Ashdown 4 Deegan, Reg. v 6 Dcering v. Ilayden 3 Delorme, Patterson & Bro. Co. v 7 Desjarlais, Hardy v 8 Desjarlais, Kerr v 9 Dewar, McArthur v 3 Page i.f Column Vol. of Digest. 374 106, 282, 550 616,622 39 450 517 256 29. 144 105 545.7 433 b74 201 5«i 256, 260 444 97 4^5 55 442 1^2, 25 175 195 61 229 4,36 439, 604 250 4^8, 470 325 534. 539 Si 290,309,451 I s. 30. 179 289 525. 527 529. 657 452 391 471 212 139. 174. 350 2 [,90,672 686 81 219 2,68 594 401,550 278 72 Column of Digest. 06, 2H2, 550 616,622 29, 144 545-i'autifiil i Mains . . 10 l\lccti(iii Cases, Ki' liiaiidun I ity ... 8 Kloction L'asrs. Re Cartiir 4 I'llcction Cases, Re Cypress 8 I'llcition (.."ases. Re luncrson 4 I'.Ieetidii Cases, Re Kililoiian and St. I'aul's 4 Ivleetinii Cases, Re La Verandrye .... 4 J'llection Cases, Re Loriie 4 Election Cases, Re Xorth DulTerin . . 4 Election Cases, Petitions, Rules relatinjj to 8 Election Cases, I'etitions, Rules relating to II Election Cases, Re Shoal Lake 4 Election Cases, Re St. Andrew's .... 4 Election Cases. Re St. Jlonifacc. ... 8 Elliott. Re ir Elliott V. Armstrong 6 I'.iliott V. r.eecli 3 I'.lliott V. J ioguc 3 I'.lliott V. May i\ Elliott V. Robertson 10 Elliott V. Wilson 6 Ellis, Simpson v T.W. Emerson Election, Re 4 Ernes, r.urridj^e v 2 Empire Brewing Co. v. llarley 7 Empire Brewing & Malting Co., Re . 8 Evans v. I'.alfotn- 3 :Evans V. Boyle 5 verett, Clark v I "wart V. Hanover 8 Expropriation Act, Re Dunn and , . , , 12 P alley. ( )"Connor v 12 F;!.ir V. ( )"Brien 3 Fairbanks v. Douglas 5 Faircliild v. Crawford 11 Eairchild v. Lowes 8 Earmer v. Livingston T.W. PilRt" i)f Vnl. Column iif Di^'st «3o 263 5".T 3>7 5Ht 287 252 514 ^75 259, 280 Coy 662 270 514 446, 474 35« 4R8 255 .S-'^< 213 68 ^>74 .=;-i.^ VJC) i()8 628 LS 6a 429 31 287 259 232 416 25 539 542 546 424 ^57 243 243 152 174 229 216 .■^.So (>40 78 325 680 177 41 252 330 289 527 7« 233 248 519 i XXIV INDEX OF CASES. Vol. FarniLTs' & Mechanics' Hank v. Dom- inion Coal, Coke and Transporta- tion Co 9 Farnit-rs' & Traders" Loan Co. v. Conklin i Federal Jlank v. Canadian T'ank of Com- merce 2 Feneron v. ( )'Kcrrc 2 Fers^nson v. Chamhre 2 — 3 Feri^uson, Keg. v 5 I'erris v. Canadian i'acific Ry. Co. . . 9 Ferry, Cowanlock v 11 Festint^ V. I lunt 6 I'^ischel V. Townsend I Fish V. Hi,q-gins 2 Fisher v. IJrock 8 Fisher & iirown, Re i F'itch V. Murray T.W. Mack V. Jeffrey 10 Flana,qan, AlcAnneary v 3 Fletcher, r\lcl\enzie v il Flour City ISank v. Connery 12 Follis, Monkman v 5 Follanshy V. ^Ic.\rthur '. T.W. Fonseca, Attorney-Ceneral v 5 Fonseca, Alercer v 2 Fonseca v. McDonald 3 Fonseca. MclMicken v 6 Fonseca v. Scliultz 7 Foote V. Municipality of Blanchard .... 4 Forest V. (lihson 6 Forrest v. Great X. W. Central Rail- way Co 12 Forsyth, Canadian Pacific Ry. Co. v. . . 3 l'"ortier, I'ailey v 3 Fortier v. (ire,t;or\- i Fortier v. Shirley 2 Fortune, Moore \- 2 Foster v. Lansdowne r2 Foulds. Re 9 Foulds V. Chaiiihers f i Foulds V. I'oulds 12 Page of Vi,l. Column of Digi.-t. 542 n 181 139,601,655 663, 665 257 291 40 460 184, 186 249,421 574 CS3 501 578 257 3«i 128 99 47 65 81 137 13.82,32; 116 37 74 ^71- 305 514 468 47 540 305 79 317 4 433 173. 300 169 413 410 370 4.-S 663 460 654. 7 300 13- 3-'- 389 638 INDEX OF CASES. Column of Digr-t. // 139.601,655 663, 665 291 460 249, 421 128 47 81 13.82. .■^-'5 37 273' 305 46S 79 433 410 663 654, 650 48_' 144 618 502, 503. 533 367 13.3-'- 638 Vol. Fran--- . Turner v 10 f'"niiik. Sciuiltz V 8 I'rasor '.-. Darroch 5 I'rastM", O'Donoluic v 4 [•"rechorn v. Sino^cr .Sowing- Machine Co. 2 IreehoM Loan ( o. v. AleArtliur .... 5 l''reel]ol.l Loan c^'.; Savings Co. v. Ale- Lean g - __ ^ J-rccman, Br\an v y iM-ce Press Co., Asli'lown v 6 I-j-cnch V. Alartin . g I'riesen v. Smith g I'^'oese, Ritz v \\ ^2 iM-ontenac Loan (!t Savings Co. v. Mor- ice -, Frost and Driver, Re xo T'uller V. Starl Gray 165 59 629 460 3-'. 628 403 674 Gray Lirea 115 97 224, 301 29 Grea 442 194 552 3U Grea ^77 ,',, 448 353 Grc; 497 8, 45- 146 Grc3 631 339. 543 Grer 132 Gre( Gre( 318 141 Gref 147 257 183 268 G )-e( 62 319 Gres INDEX OF CASES. xxvn CnUiinu of UigL'st. 187 335. 676 )6. 199, 409 478 462 488, 503 59. 629 3-'. 403 628, 674 194. 552 353 141 183. 268 319 Vol. (iraliain v. liritish Canadian Ltian and Investment Co 12 (iraliam v. Hamilton 8 (iraliam v. Harrison 6 (iraliani, Sprague v 7 (irannis, Reg. v 15 (irant, Re 7 (irant v. Heatlier 2 Grant v. Hunter 6 ■ 7 8 Crant v. Kelly 2 (irant v. McKay 10 (irant v. ]\IcKce 1 1 Ciraves. Fleech v i ( iraves, Dominion Type Co. v i Gra}'. Re '. 9 Gray -Jones, Ilrittlelxmk v ^ (iray v. Man. & X. W. R 12 Gray v. Manitoba & N.-\V. Ry. Co. . . . 11 Gray v. MeLennan 3 ( ireat X.-W. Central Railway Co., Char- lebois V .' 9 II Great X W. Central Railway Co., For- rest V " 12 Great X.-W. Central Railway Co., In- ternational. Etc., Corporation v. . . 9 Great X.-W. Central Railway Co. Mc- Donald V JO Great X. W. Ontral Railway Co., Mus- sen V. ' ■ . . . J 2 Great X.-W. Telegraph Co. y. McLaren i Green, jlrand y 12 Green y. Cauehon -^ (ireen v. Hammond 3 G)-een, Shore y g Gregory, l-'ortier v " i P:igu of Column \ul. of U:gc,-t. 2^1 282, 475, 477 443. 459 433- 585. 586 210 185.413 398 153 468 667 201 71,679 550,610 no, 284 58 ^ 589 243 220 222 242 243 368 145 419. 549 26 26 388 33 32. 57 42, 261 12. 32.57 18, 204 573. 596 ?>?,7 270,310.679 I. 60 286. 448 U5 472 M7 83 574 358 337 248 97 322 25 136.279 475 44. 47. 48 49. 565 XXVIU INDEX OF CASES. Vol. Griffin, Scott v 6 Grisdalc v. Cluilj])uck i Grouctte, Smith v 2 Grundy v. (jrund)- lo Grundy v. Macdonaid li Grundy, Ritchie v 7 Guiler, Winnipej.^ v 3 Guillctt, Wooc' V lo Gurney, Nelson v T.W. Guthrie v. Clark 3 Haddock v. Russell 8 Ilafficld V. Xui:,rent 6 I la^el V. Starr 2 Has'iCi-art, Ontario Bank v 5 Tlaight V. Nash 2 Hall, Johnstone v 10 Hall V. Rural Municipality of South Norfolk 8 Hall, Wallhridse v 4 Halstead v. Conklin 3 Hamilton, Copeland v Hamilton, Graham v 8 Hamilton Provident & Loan Society, P)OUL;hton v 10 Hamilton Provident and Loan Society, Carruthers v 12 Hamilton Provident &■ Loan Society, Giles V 10 Hamilton Provident & Loan Society, Koester v to Planiihon Provident & Loan Society, Linstead v it Pfamilton v. AIcDonald 2 PTammond, Green v 3 Hamilton. Rci^-. v 12 Hamilton 1'rusts. Re 10 PTanhury v. Chamhers to Planna, Alassey Manufacturing Co. v. . 7 Planna v. McKenzie 6 Planover, Ewart v 8 Hanover, Pritchard v I Hardie v. Laverv 5 Page of Column Vol. of Digest, 116 202 107 314 3^Z 361 I 189 53^ 23 « 570 IZ3 318 616 25 18, 184, 604 547 266, 329 92 524 204 75 161 430 399 341 8 143 443. 459 683 20, 554 60 567 374 IQ9 114 341 97 354. 507 573. .588 562, 673 167 124 572 250 293 2t6 y2, 366 134. 135 376 INDEX OF CASES. XXIX Cdluuin of Digl.■^^. 107 361 189 616 18, 184, 604 266, 329 524 399 20, 554 341 562, 673 124 376 Vol. ilardy v. Dcsjarlais 8 Hargrave, Laccrte v. . , T.W. Jfarlcy, Empire lircwing Co. v 7 Tlarmer, Cochrane ManufacturinjT Co. v. 3 Harris, Ady v c) Harris, Parenteau v 3 Harris v. Rankin 4 Harris, Son & Co. v. York 8 Harrison, Graham v 6 Harrison, iMc Donald v 8 Harrison, Man. tV X.-W. Loan Co. v.. . 2 narrower. J'.rown v 3 JJarvcy v. Canadian Pacific l.»-. Co.... 3 Harvey, Watson v 10 I farvie v. Snowden cj }iay V. Nixon 7 Hayden, Decrinj;- v 3 Ilazelwood, Kcclcr \ i ■ — 2 Hazlcy V. AlcArlhur n Heanian, Bertrand v n HeasHp, Campl)ell v 6 Heather v. Crant 2 Hehl) V. Lawrence 7 Hector v. Cana(Han Hank of Commerce. 11 Hellyar, .\[ont,^()nier\- v g Plendcrson, Re y Henderson, Dudley v 3 Henderson, Jones v '^ ilenderson, AicEwan v 10 Henry v. Canadian Pacific Rv. Co i I lenr\- v. Glass '. 2 Henry, Miller v 3 ] [enry. W'atcrous Enftine Works Co. v. . i ~~ — 2 Her Majesty's Counsel. Re 8 Herbert and Gibson. Re 6 Herman. Reg. v 8 Heron, Mcbie v 3 Herrell, Reg. v 12 Page of CoUuun Vol. of Digest. 'm 401,550 243, 245, 277 366,388,634 343 416 , ( 449 127 329 115.512 296.315-318 319. 347, 348 349, 408, 60 1 89 386 210 ^55 33 441 43- -^'■"^ 161,273 641 3 ' 3 427 57') 588 219 28,31 149 602 290 205 64 201 07^ 623 320 244 j 551 481 668 47-" 433 1 503 2fO 99 i <)7 322, 394 4^5- 454 36 169 ^S':> KV 593 1 ' 330 231 198, 522 191 zxx INDEX OF CASES. Vol. Hethcriiigton, McLenaghan v 8 Higgins, Fish v 2 Iliggins, Alacliray v 8 Hill V. Rowe 3 Hilliard, Canada Permanent v 3 Hockin, Adams v 12 Hockin v. Whcllams 6 Hodge, Reg. v 12 Hofley, Loppky v 12 Hogue, Elliott v 3 Holdcn, Reg. v 3 Holley, Doig v i Hollcy, Kasson v i Holman, Reg. v 10 Holmes v. Canadian Pacific Railway . . 5 Holmwood V. Gillespie ii Holy Trinity Clunxh, Anly v 2 '- '- 3 Hooper. Brown v 3 Hools-er, Bertrand v 10 Hooper v. Bushell 5 Hooper v. Coombs 4 5 Hooper v. IMcBean 3 Hope, Bank of Nova Scotia v 9 Hopkins V. Beckel 4 Hopkins, Young v 9 Plorsman v. P)Urke 4 Hoskins V. I'arber T.W. Hough V. Doll 10 House, Reg. v 2 Ifouiley, Warne v 3 Howard v. Burrows 7 Howard, Doll v to II Howard, Re 4 Howe V. ]\Iartin 6 8 Howell V. jMontgomcry 8 Howes, Reg. v 5 Howland v. Codd 9 Hubbard. Mulligan v 5 Hudson's Bay Co., Armit v 3 PaRc of Column Vol. of Digest. 357 Hi 65 29 Hi 247 3-' Jh 11.433 III 521 298, 57<^ ill 319 Hi 335 111 674 Hi 579 Hi 61 Hi I Hii 272 346 285 186 313 Hu 248 Hu 193 Hu 86. 88, 89 .11 11 445 l!ii 300 7 35 21, 122, 134 Ini] 1 65 682 ^77 Im] Jnii 37 40S 300, 410 Im Till] 310 245 361 5^3 Ini ]iii 264 6yq 205 390 Im 68 Im 547 181 182 Tm 635 Im !i-73. 577 Tnc 429 Tnl 477-615 Tnl 533 103, 390 395 Inl 499 588 Im 339 Int 435 416 225 Tri 529 Ir\ INDEX OF CASES. XXXI Column of Digest. 298, 578 285 21 , 122 . 134 177 300, 410 361. 513 205 390 T82 103. 390. 395 588 416 Vol. Hudson's liay Co. v. Attorney-General of Alaiiitoha " T.W. Hudson's J!av Co., Re, Couture v. AIc- ^ , ^^'iy •• • 6 Hudson s Bay Co. v. Macdonald .... 4 Hudson's J Jay Co. v. Rattan 1 Hudson's Bay Co. v. Stewart 6 HufT-hos, Braun \ ^ Hu.i,dies, Dick v c :Hus,dies V. Rutledt^^c 10 Hunt, I'estin,!:: v 6 Hunter. Cliadwick v t 30. Hunter, Cirant v 5 7 8 Huston, Robinson v 1 Hutcliinns V. Adams 12 Hutoliinson v. Colby 12 Hutchins, Robinson' v i Hutchinson v. Cakler i Imperial Bank v. Adanison i Imperial Bank v. Animus i Imperial Bank v. Ilrvdon ' . .' 2 Imperial Bank v. Clines ['. 10 Imi)erial Bank v. Brittle " ." i Imperial Bank v. Smith .......... 8 Imperial Bank v. Taylor .......... i Imperial Loan & Investment Co. v. Cle- ment, Re Coulter n Imperial Loan & Investment Co. v. Cle- ment. Re Murrav n Imperial Loan & Investment Co.v.Miller t t Imperial Loan Co., Scott v u Inch V. Simon 12 Tnkster, Beenier v . . . t. Tnkster, Mahon v . . . . 6 Inkster, Osborne v 4 Inman v. Rae [[ iq International, Etc., Corporation V Great X.-W. Central Rv. Co. . . n Irish, Re ■ ; ;; 2 Irwin V. Beynon . . . . 4 Page of Vol. 20<) 237' 4«o 330 8 177 25,0 '3 381 100. 363 550.610 243 220 71 118 307 122 17.46 96 98 [17 .V7 31 440 -'44 428 Ciiliuiui of i>igt>t. 646 613,614 614 515 249, 4S3 ;6 Kerr. 1 ^53 70 Kid.l. ( 60s Kic'vell 514 Kildonn 112 376 Kilpatri 460 KillL; \' 607 King v. King v. 373 13J Kirchh( 113 4 527 161 2,13 234. 472 Koester Soc 433 87, 142. 140 Krecker 554, 606 Klilin, Is t86 Kyle, 124 58,3 73 28T 188, 295, 594 Labatt \ Lacerte 14 422 Lacliane Laciiursi Laferriei I 45^ LalTcrtv 47 112, 52c Laird. C 28, 31 Lake VVi 140 46 Re 365 411 «7 493 Lake Wi 224 (Bei 222 280 169 Lambert 11,466,469 Land C"oi Landale 203 Landed I 219 Lantled 1 599 m 3 INDEX OF CASES. XXXIII Column .; of Digest. ' \"ol. KcniK'dy V. Austin j Kennedy v. iJlack ' '' "['.w^ Kennedy, Moore v j2 Kennedy, Patterson v ".'.".. '.'. ' 2 5^ Kennedy v. Portage la I'rairie." . " ' .' ." i^ 27b Kennedy, Reg. v jq 85 Kerr v. Desjarlais . . . 8 Kerr, AlcFadden v j , Kerr. J'cttit v - 70 Kidd, co-oin V ■;.' ;; ;. ,^ Kievell V. Murray ' ' " ' ^ •?76 JS5m''°"^" ''^"^ ^t- ^-'^"'"s i-^lection' Re .' ." 4 •^^ Kil]jatriek v. Winnipeg .... T Kin.t, V. Leary . . . . " . . . " i King V. Kulm . . . King V. Roclie ". J •^ Km-liholTer V. Llenicnt .'.".* ir 2 j^ tCoester v. Hamilton Provident ^^- Loan 234.47-^ ^ ';^°'^'ety jQ 87, 142, 140 Kreckcr. Roit v g 554, 606 Kulin, King V , Kyle, O'Connor v. . . 2 583 188, 295. 594 Labatt v. Chisholm - Lacerte v. J largrave .... "f w 422 Lachane. .Mulvihill v. .. .. ' y LacMursiere, Reg. v o Laferrierc V. Cadicux".". V. '. tt 451 Uftcrtv V. Spain l 112.520 Lai,,,, Case V. ..:::::: i.'; i"' ' I 46 ^^'-^^'^^'i'l'iipeg 'I'ransportation. Etc.,' Co'. 4^1 ^ " ' 7 255, 493 Ukc yVinnipeg, Etc., Transportation Co. (bergnian's Claim) g Lambert v. Clement j j ".466,469 L^nl^n^^;;^:^^--^^' Johnson v: ^ Landed iJanking & Loan Co., Anderson 'v. 3 Landed Bankmg & Loan Co. v. Douglas 2 I'agu <,f Ct)liiiiiii \'ol. of Digi>t. 362 54 144 173 63 634 497 33S 401.550 542, 549 278 487 359 448 209 468 252 256, 633, 639 103 148 ■ 340 288 413 88 381 258 460 22, 89, ^i<-: 607, ?J27 374 32.610 230 413 220 502 200 343 248 189 302 173 38 32 548 204. 461 602. 605 n8. 151 153. 154 463 157 519 627 527 322 483 270 28,485 221 247 XXXIV INDEX OF CASES. Vol. Laiu' ;mtl (. InuThuardcns ui All Saints' I lunch. Martin v 3 Laroc(iuc, Kc 3 Laui^hlin, Duncan v _» Lutta V. Owens 10 Lavelle v. Drunmiond 6 La Verantirve iClcction i '- 4 Lavcry, llardie v 5 Law V. Xcary 10 Laulor V. Nic(jl 12 Lawrence, 1 Icbb v 7 Leacock v. Chambers 3 Leacock v. McLaren 8 Leacock v. McLaren, Re Kennedy .... 9 Leadley v. McGrej^or 11 Leary, King v i Leask, Dobson v 11 Leckie, Macarthur v 9 Lee, Down v 4 Lee V. Sumner 2 Leg-go. Dougall v 7 Leggo V. 'rhil)audeau 7 Le May, Comber v T.W. Les Cistcrciens Reformes, Chaz v 12 Levefjue, Reg. v 3 Lewis V. Georgeson 6 Lewis, Re 5 Lewis V. Wood 2 Lillico, Watson v 6 Lines v. Winnipeg Electric Street Rail- way Co II Linstead v. Hamilton Provident & Loan Sotiety II Lisgar Election Case, Re 7 Livingstone, Re 6 Livingston, Farmer v T.W. Livingston v. Rowand 8 Livingston. Wyld v 9 Logan, Clifford v 9 Logan Trusts, Re 3 — 4 Page of Vol. Cdliiinu of Digc>t ,Loga 3'4 L( igii 274 514 Loud 78 \ 153 625 LuU(l( 120 5S(, \' 1 1 255 ■^5'.' Londt 514 134. 135 59-' 78. 40; Lond( 224 60; Cl 222 IS 645 43 32; Xondd 326, 3-^' X 579 104, 10; Sf ]U'U(1() 599 9 340 3«': K Londo 620 C( no Long 177 Long. Long Loppk^ Lome Loiu'se 191 4J.5 3« 35 3.30 34- 4^: Louise I-owes, Ltuui \ Lutes, Lux ton 582 272 44 10 5'''- 7:i 3/- Co 59 L>tirli L\ iicli 77 64 L\ncli, L\(in, 1 09 435. 4' L\"ons, 581 L\-ons, 298 223 ' 298 163, 169, lb Macartl 109 Tol 423 Macartl 49 674. 6> Macartl 19 Macrlon „'S n INDEX OF CASES. xxy.v Column of DiK^-t 51. 62; 589 255. 259 78. 40; 60; 43. 3-'; 326, 3J 104, lo: 3«'. 34: 48; 10 59- 27- 64 435- 43' 163, 169, i>^ 674, 6i Vol. Logan V. Winnipeg g L(ij,nc. Xixoii V 1 Lundoii & Canadian Loan & Agency Co. V. Cimni'll n London i\: Canadian Loan 6c Agencv Co. V. .Mol'lat ..'.., 3 London c\: Canadian Loan Co. v. Morris 7 7 — c) London 6c Canadian Loan Co. v. Mnni- cipaiity of Morris { Whitford. garn- isiuc ) " _ ^J London Cnarantcc and Accident Co., X.-W. Comnu'rcial Travellers' As- sociation V JQ JU'iidon & Lancashire Insurance Co , '^"S^^'rs V •; ,0 i-ondon. Liverpool & Globe Insurance Co., Rogers V fo Long V. .McDougall , Long. Unger v ' .' " .' ' ]' ,, L(tng V. Winnipeg lewelrv Co.. . ". ' " ,", Loppky V. lloflov .'.... " I , Lome Election. Re T Louise, Crotliers v. t^ LI ... . I u I'Uise. W lute v _ I-o\ves. I'airchild v .' " ' ' ,S Lunn v. Winnipeg '5 Lutes, lirydon v '. .'. Z :;|.uxton, Hritish Empire. Etc.". Assurance Co. V Lynch V. Hank of Xova Scotia t Lvuch V. Cloughcr ' ' j L_\-ncli, AW'st V L>on, Bred en v T W'' Lyons, Newman v S Lyons, Reg. v Macarthur. Dean and Chapter of St John's Cathedral v. . ' Macarthur v. Leckie Macarthur V Portage ia' Prairie" .'." '.' o Aiacdonald. Attornev-Ceneral v 6 PaRc <>{ Vul. 3 366 I It Cnluinn of IHgt'St. 569 -'99- (J32 2412 248 i-vS 3'*^2, 403, 404 487. 4«cX. 632 ^77 505 431 537 667 39 1 no 5f^8 372 335 667 r,S5 390 454 •59 8. 545 335 194, 202 275 255 523 231 527 2-\^ loi, 188,510 \(\^ t6q 180 293 40.64 rh7 50 271 153 207 145 XXXVI INDEX OF CASES. |.:,|. Vol. Macdoiiald v. Lorrij^ral g M;u-(l()'ial(l V. C'liminings (S iMac-(l(Jiial(l I-llt'ctioii. Kc ii Macdi'iiald v. (imil X.-W. Central Rail- way Co lo Macdonald, drmidy v ii Mai-di)iiald v. i i.'inison 8 Aiacdonald. liiidsoii's r>av Co. v 4 Alatdiiiiald v. Macartluir 4 Macdoiiald, Kc Rural .Municipality of. . 10 Ahu'donc'll, Macartliur V 1 3 Mac'iar, .MciCillii^aii v 3 Maclnav v. Ili,qgins 8 Madili V. Kelly i Mai^v'f and Smith, Re 10 MaL't'*.'. \\ illianis v 8 Mamnus I'lfown, Re 8 MaLMUtssdn. liertrand v 10 Malion, Hole v 10 Malion V. Inkster 6 Manitoba Klrctric ^ (las Li,t;ht Co. v. Cicrrie 4 i\Tanit')l)a Electric Liq-lit Co. v. Winnipeg- 2 Mauitoha l''Iectric & ( ias Li<;ht Co.. Na- tional Rlectric Manufacturing;' Co. v. g iManitoha I'rce Press Co., Ashdown v.. . 6 Manitoba Free Press Co., Martin v 7 8 Mauit( ba Investment Ass'n v. Moore . . 4 Maniti '-a Investment Ass'n v. Watkins. 4 Manitol)a T.and Co., Asbdown v 3 Manitoba Lumber 6i: Fuel Co., Miller v. 6 Manitoba Milling Co.. Tn re 8 Mr'uitoba Millins? Co., Blake v 8 Manitoba Millinj;- Co. v. Gendron .... 7 Manitoba .Mortp^as^e & Investment Co. v. Daly 10 Manitoba Mortc;-a.a^e & Investment Co. v. Canadian Pacific Ry. Co i Manitoba ]\rort,q;a,£je Co. v. Stevens . . 4 Manitoba & N.-W. Loan Co. v. Barker 8 Manitoba & N.-W. Loan Co. v. Bolton. 9 I'.-iKc of Column Vol. ot Digt'st. 284 123 406 ^87, 340, 3i^7 39S 25« 83 386 I 29 166 237, 4S() 56 240 294, 7,^2 334 9. 173.629 418 29 685 280 28 I 436 17 391 368.683 490 150 253 188 210 123 187 206 212 413 50 41 160 357 349 444 487 426 154 426 484 425 285 410 296 153 268, 449 572 427 383 316 INDEX OF CASES. xxxvi{ Column )l Digest. 340. 3^7 386 166 240 685 28 436 36S. 683 t88 123 206 160 349 154 26S, 449 572 427 383 316 Vol. M.-mltiilia iS: \.-\\'. Loan t"' .v. Harrison 2 Maiiitdha ^: .\.-\\. Luaii '.c v. Alc- I'licrsoii 9 Maiiitnlia iV X.-W. Loan CV). v. Ruutlcy 3 Maiiildlia \- \. W. Loan L'o. v. Scobcll . J Maniloha & \.-\\ . Kv. Co., Allan v. . 10 Man. ^- X. W. R., .Mian v 12 Manitoba \- .\.-\\ . Ky. Co., Allan v.. Re Gray 9 Maniiolta & X.-W. Ky. Co., iklchv. .. 4 Manitoba ^K: X.-W. Uy. { o.. (irav v. . 11 Manitoba (S: X.-W. Ry. L'u., .Mian v. R(.' (irav, Xo. 1 10 M:.nit(.ba ^^t' X.-W. Ry. Co., Allan v. Re Cray, Xo. 2 10 Man. .S: X. W. R.. Circy v 12 Manitoba i^- .\.-W. Kv. Co, Maxwell v. 11 Manitol)a .^ X.-W. Ry. Co., McMillan v. 4 Manitoba & X.-W. R\. Co., Wcstbonrnc L attic Co. V. . . ' 6 Maniti>ba S.-W. Colonization Rv. Co.. Mnrdock v '. . . .T.W. Maniton, Re Methodist Chnrcli 8 I\lann, 1 )ouj.;las v 11 Mann. Winnipejj it llndson's Bay Ry. Co. V. .. '..'.. 6 7 ALantiix, Sutherland y 8 M;ino(|ue y. .Mason 3 Marchand, Stover y 10 Marshall v. May 12 Martell v. Dnbord i 3 .\lanin. Re llrnnswick-Balke Co. and . . 3 Martin, I'rcnch v 8 Martin, Howe v 8 6 -\iartin v. Lane and Churchwardens of All Saints' Church 3 Martin v. Manitoba Free Press Co.. . . 7 8 ALartin v. Morden 9 l';\HV (if \'ul. Ciiluum 111' l)lHC'.>«t. 33 484 210 296, 521 ' 43 57 405 4.^5 '2,57 38S '[98 42. j()[ I-. 3-'. 57 106 32. 57 "49 J-O 55?i 422 334 /36 546 1 409 422 8[ 457 541 C03 404 322 3«' 272, 386 174 402 412,420 545.546 598 328 362 5,U 477. 6r5 3U 460 4L3 443 444, 508 50 565. 567 581,587 , xxxvin INDEX OF CASES. .IT ,«■ :iii:' Vol. Martin v. Xcjrtlicrn J'acific Express Co. lo Martin, Rowand v 7 MartiiK'ale v. Cunklin i Marquette Election, Re 11 Masscy and Gibson, Re 7 Mason, ]\lonoque v 3 Masscy-llarris Co., Crayston v 12 Massey-llarris Co. v. McLaren 11 Mas.sey-H arris Co. v. Warener 12 .v.assey Manufacturing Co. v. Clc'iicnt . . 9 Massey Manufacturing Co. v. ( i.uidrv . . 4 Massey Manufacturing Co. V. 1 fauna . . 7 Massey Manufacturing Co. V. I'errin . . 8 M.isscy Manufacturing Co.. Roe V. ... 8 Alassey Manufacturing Co., Slinger- land V TO Massey Manufacturing Co., Wax v.. . . 4 Mathers, Re 7 Aiatlieson, W'ciods v 8 Maxwel! v. Clark 10 AFaxuell \. Manitoba & N.W. Ry. Co. 11 May, Elliott v ' . . . . it May, Marshall v 12 McAnncry v. I'lanagan 3 McArtluu- V. Dewer 3 McArthur. Freehold Loan Co. v S McArthur, Follansby v T.W. McArthur v. Glass 6 McArthur, Hezley V li McArthur, IMcDonald v 4 Mc.Xrtliur v. McDonell i - — 3 MrArthur v. :\JcMillan 3 IM ■ rthur, Ontario P.ank v 5 Mc.-\rthur, Stephens v 6 jNTcTiean, Llooper v 3 McRea", L^nion Uank of Canada v. ... 10 JMcl'urnie, Sharp v 3 McCaffrey v. Canadian T'acific Ry. Co.. t McCaffrey v. Gcrrie 3 McCatifrey v. Rutledge 2 MacCarthy v. P>adgely 6 McCarthy, Wells v. 10 Page of Column Vol. of Digest. 595 126 160 338 i75 3«i 641 172 594 603 95 370 17 48 412 3.^9 2S6, 627 229 393 572 199 i57 68, 19s 126 326 21 38 434 649 158 406 197 149 243 ^06 3«i 272. 386 47 160 72 464, 466, 469 207 4 224, 301 583, 584. 585 602 56 334 173.629 294. 324. 340 152, T,77 32. 72 ¥^ III, 496 682 2TT t6i 3.50 95 559 119. 3 L^ 127 169 270 T93 639 McI 'Iw Mel Iw Mel "w McI ".\VC Mel \'ul -Mel "ar Mcl- ie INDEX OF CASES. •75 594 393 649 197 243 95 9.3^3 169 T93 Vol. McCartney, Re 8 IMcClary iManufacturing Co. v. Winkler 7 McCuaig, .Miller V 6 McCuaig V. I'hillips 10 McCuaig. W'hitla v 7 IMcCutcheon. Ijernhart v iJ McDonald, iiecher v 5 McDonald, l>oyce v 9 McDonald v. Canadian I'aciiic Ry. Co.. 7 McDonald v. Charlebois 7 McDonald v. Cunningham 3 McDonald v. Deacon 4 McDonald, I'onseca v 3 .McDonald, (ilass v i McDonald. 1 laniilton v 2 McDonald v. Mc(Jneen 9 .McDonald. Montgomery v i McLean, Mercer v T.W. .McDonald. Sinii)son v 6 .McDonald, L'nion liank of Lower Can- ada V I McD(^nald and X'anderberg, Reg. v. . . . 8 McDougall, Long v 3 .Mclv.lwards v. ( igilvie .Milling Co 4 ; 5 .\lcluvan, Mcllroy v 12 -McLwen, liritish Linen C'o. v h 8 McLwen, Crumhie v 9 Mcluven, ( iilcs v r 1 .Mcl'.wen v. llender.son 10 .Mel". Win, Sanfonl Manufacturing C(^. v. 10 Mc]'"ad(kn v. Kerr i_> .Mclvirlane, Cochrane v 5 .Xfcl'^ie V. Can.'idian Pacific Ry. Co 2 ?dclMe V. Heron 3 McCiinney v. Canadian Pacifir Ry. Co. . 7 Mc(iregor, Le;;dk'y V it Alcllroy, Canieron v i Mcllrov V. Davis i McTlrov V. ^IcEwan 12 X.WIX Page I'l Coluum ^•ol. of |)li>f>l. 3O7 304. ."^f^K^ 1-7 534 539 6(;4 i-'5 454 394 223 297 423 239 35 370. 542 3'.) 164 452 5 413 2() 114 3L5 23-' 95 302 335 99 214 685 I 142. 149 460, 461 77 164 29, 2()2 86 419 150 5'^3 205, 474 6:50 • 4H7 335 120 6 57'''. 57^ -3T 46 151 576 T97, T98 24 T. 242 53 3^2 164 200 xl INDEX OF CASES. ': Ui i f-l- Vol. Mclllvanic, Adamson v 3 Mcintosh, ikmk of British North Amer- ica V ^ I Mcintosh V. Xickcl 4 Mcliityrc v. Union Bank 2 Mclntvre v. Woods 5 McKay v. Allan T.W. ]\IcKay V. Barl)cr 3 McKay, Bcnard v 9 McKay, Coutnre v 6 McKay. Dixon v 12 McKay, (irant v 10 McKay v. Xanton / ]\IcKay V. Runihlc 8 ]\IcKcand, Bank of Nova Scotia v i McKoc, Grant v -^ tt McKenny v. Spcnce T.W. McKcnzic v. Champion 4 McKcnzie v. Fletcher it ^IcKenzic, Hanna v 6 McKenzie. Kellcy v t 2 AlcKcnzie, Rankin v 3 McKcnzie. Rej^. v -' Mclvenzie, Western Electric Liglit Co. v. 2 McKillinan v. .Machar 3 McKilli,L;an, Union Bank v 4 ]\]cKinnon v. I'-lack i ]\lcKinnon, Sutherland v 3 McLaren, Arnold v i ^McLaren, Great X.-W. Telegraph Co. v. i McLaren. Landale v S McLaren, Leacock v 9 McLaren, Massev-llarris Co. V u McLaren v. :\[cClelland 6 ]\lcLaren, Shields v 9 McLatchie v. :McLcod 6 McLaughlin, r.udd V lo AlcLcan, Freehold Loan Co. v. ...... 9 McLean. Freehold Loan & Savings Co. v. 8 iMcLean. Gait v 6 McLean, (nllis v ■ ■ f McLean, fiercer v T.W. Pafic of vo;. 29 593 Column of Ui'^ot. 5- 603 30.S 84 347 385 1 1 1 4T 678 156 ">— :? -/>•) .514 ^43 2^0 584 86 185.416 17.S M.=^ 1 r 248. 268, s6t t:,8 382. 552 .^40 453 250 T69 203 323. y^4 16S 51 418 113.276 29 243 608 i^?, 3.vS 322 .S99 8. 579 ?>70 5^^ 25. 24S 182 452 300 /.I US "6,334 424 "3 301 95 INDEX OF CASES. XII 603 84 678 453 300 301 Vol. AicLcan, .MciTliaiils" iiank v 5 McLean v. Mcrcliaiits' Hank i •McLean v. Shields I McLean, W'aterous [engine Works (."o. v. 2 McLeisli, rinuUey v i McLelhuul, McLaren v 6 McLelhind v. .\lunicii)ality of Assinil)oia 5 McLeneglian v. I leUierington 8 McLennan v. ( ira\- 3 McLeinian v. Winnipeg 3 McLennan, \'eitcli v 3 ^IcLeod. P>rcnchlev v u McLeod, McLatchie v 6 McMahon v. Liggs 4 McMain v. Obce 10 McMainis, W'ishart v i McMaster v. Canada Taper L"o [ McM aster v. Jasper 3 McA faster v. Jones G 'McMeans, T^ohertsiin V ' INIcMicken. I'.akewcll v ^ McMicken v. Clarke T.W. ^IcMicken v. lM»nseca 6 AlcMicken v. Ontario Bank 6 5 McMicken. Oiuario I'.ank v 7 8 ^IcMillan V. i!nrtlett _' McMillan v. I'-yers 4 3 McMillan v. Manitoba & X.-W. Ry. Co. 4 ^IcMillan, McArthur V 3 INlcMillan, N.-W. Timber Co. v 3 McMillan v. Portage la 1^-airie ir McMillan v. Williams McMillan v. Wolf 4 ALAronagle v. Orton 6 5 Paso oi Column \'nl. >f Ditjcst. J 19 I7S 241 278 66 -^70 103 533 203. 2(;<) 5-3- 545- ^'^'3 3 "'7 201. 448 .^•>7 82, .,71 161, 470 :^^.^ (>47 45-^ ■^4 541 3'H i34 '55- '"' T62. 163, 164 168. I-'-., 1 -f 178. 18 1 350. ''> \o t;.? -^3 5W^ 62, 3:- 1. 3-'^'- .^^7- 3^'8 7'> 280. 443 361 220 577. -~7'^ L=;-'.377 J77 216 4')8 62- 180, 1 > ) I . ,', I 2 52(), 62 r T,nn y:^^^ -'5. 1^> 231.420 103 xlii INDEX OF CASES. Vol. McNabb, Gault V i ]\lcXaughtun v. Dobson 5 Mci'hail V. Clements i iMci'herson, Manitoluv & X.-W. Loan Co. V 9 iMcrhillips, Re 6 Mcl'liillips V. Wolf + McOueen, McDonald v 9 McRae V. Corl)ctt 6 McRobbic, Ct)l)uni v 9 McRobbie v. 'iOrrance 4 S ^IcWillianis v. Ilailcy 9 ]\k'nzi(.'s, Coristine v 2 ]\lcrcer v. P^niscca • ^ IMercer v. McLean 'I'-W. Merchants" I'.ank, Latcnian v i Merchants" I'.ank. r.ath,L;ate v 4 IMcrchants' I'ank, Canada IVmiancnt v. 3 Merchants' liank v. Carlcy ........ 8 Merchants" I'.ank, Confederation Life Association v 'o islerchants' I'.ank v. Dnnlop Merchants" I'.ank v. ( iood C) Mercliants" Lank of Canada. La 15an(|ne d"llochelaL;:a V lO Merchants" I'.ank v. McLean t :\ferchant.s" I'.ank v. McLean, I lender-.. son & Bull, sjfarnishees 5 ^Icrchants" I'.ank v. IMnlvev 2 6 Merchants" I'.ank v. Peters i jMerchants" I'.ank, Streinier v 9 Merritt v. Rossiter I ■^^ • ]\[clca1f, Lavncs v 3 438. 4 Methodist Church. Manitou, Re S ^levers V. I'rittie T Miller. Re .^ Miller v Dahl 10 9 Miller. Ccdilcs v I Page of Coluaui Vol. of Uigcit. 35 jlillcr 31S Miller .165 Co Miller 210 Miller 108 51 -Miller 300 388. 395 Miller, 315 Miller, 426. 536 21, 136 Milner, 654. -Miller v. JMortoii 8 -Miller, (Jiiehec Hank v .' . . 3 Miller, Xageiit;ast v '5 Milner, Rotliwell v 8 Miiuins, Doidgc v i_> Miiiakcr v. l!o\vcr j Miner, Ontario Bank V T.W. Mitehell, Duu^an v () ?\I .Monkinan, Ret^. v 8 -Monknian ^'v: (icM-don, Re ^rereliants' liank ol" ( 'anada, garnishees 3 AFenk!iian v. Robinson \ -^ronknian v. Sinnott \ ^b>iits"(iniery, Asbdown v 8 Mont.q-omcry v. (lellvar ." .' ' .' q ArnntLi'oniery. Tlnwill V 8 Montq-omery v. McDonald t Alontq-onicry. Sexsmitb v q ^roiitcilb, Trotbers V [ TT I'donrc. Confederation Life -Associa- tion v f, Vonrc. Confoder.-'.tion Life Associa- tion, "Re Q Page of Column Vol. of U.gesi. 4-'5. 454 31.-^40 -'47 438 487 148, 236. 457 539 4-'5. 47fJ I 20, 459 '7 241 472 618 265 167 477 -'5 92 249 209 57(^ 5^>5 203 47 93 116, 1 76 45 f 41. .59 M.^ 428 i^>5 385 '■^5.^ 372. ^7.-^ ^^7 -'36 37' 684 ir,r, 509 M5. 2S4 337 640 4-^3 T70 47 520 55'' 270 499 2^,2 ^r^ 173 $7^ 162 45.1 i;on XlIV INDEX OF CASES. Vol. Aloore v. T'ortuiic 2 Aloore v. Kennedy 12 Moore, Manitoba Investment Associa- tion V 4 Moore v. Protestant School, District of Uraclley '5 Moore, \\'clll)aiul v 2 Alordcn IClection. Re 12 Morden, Martin v 9 Alorden v. South Dutterin 6 ]\h)ri;an, Key v 5 Mori;viri, j- 7 IMurice v. • '■ 6 Morice v. ] i.nit* iiac Loan .& SavinL;s Co. 3 Morice, Frontcnac Loan Co. v 4 M(irpliy, \g:ie\v v I I\hirris v. Arnii, 4 ]\ [orris, London & Canadian Loan Co. v. 7 9 W'liitworth, s;arnishee 9 Morri.set, Cnion liank of Canada v 7 Morrison v. City of London Fire Insur- ance Co 6 ]\[orrison v. Robinson 8 jMorton, Miller v 8 Mowat V. dement 3 ]\lullij4an V. ITuliliard 5 Mulligan, Sinclair v 5 ■ 3 ^tulliqan V. White 5 ]\liilvihill V. Lacluince 7 ■\lulvey. Merchants' i'.ank v f) ^lunicipalitv of Assiniboia, McLellan v.. 3 ^Municipality of i'llanchard. Cleaver v. . 4 ]\[unicipality of RIanchard, b'oote v. . . 4 ^Municipality of Lansdowne, leister v. . t2 ^Municipality of Louise, Crothers v.. . . lo ?\Iunicipality of jMacdonald, Re to ^lunicipality of North Xorfolk, Cur- ran V 8 Pagf of Vol. C'liuir.n of Digest. 28, 94 ^7i 97' 54?, 417 41 11,469 49 193 563 565, 5^7 63 593 241 281,507,589 2 I , 462 439. 442 49 152. 307 '^7' 162 i6(), 170 128 377 431 uic 470 '', 222, 225 243. 37') Xao-eii-; 218 4Jf. Xanton, I " .Xanton 585 80,8 ^84 Xash, .N 89. 43'^' Xash, il 225 122 X'ational 17 -Mai 481 Xearv, ] 40 108 X el son \ 189 187 Xevins, 467 X'e\ins, 127, 265, 2qn .Xewniaii 464 Xichol \ 460 Xicholsf) 4T,4-. 41^' 523 Xickel, : 294, 382 494 Xic.l, I. X'ixon, ' 256 : Xixon V INDEX OF CASES. xlv Cn'iuir.n )f l)ige-t. 97' 543 4^7 1 ! , 4^9 ! r ■ , 507. 589 57, i6j i6(), 170 -'43 ■3?' 4-" 80, 83, 84 8<^ 43'> 122 108 187 494 \'nl Municipality of South Xorfolk, Hall v. . 8 Aiunicipality of South Xorfolk v. W'ar- I'^'ii 8 Alunicipality of W'fsthourne, Gillespie v. 10 -Muuro, lu'uik of British North Anieri- '-■•'l V (^ ^Munro V. Irvine n Munni y. ( )".\eill I Murddck v. Alanitoha S.-W. Coloniza- tion Ry. C(i T.W. Murray. Clarke v T.W. T.W. .Murray. l'"itch v T.W. IMurray, Kievell v 2 ^Murray, Merchants" Hank v 2 I\lurray, Rice v 2 I\lurray, Wilton v 12 -Mussen V. Creat X. W. Central Rail- way Co 12 -Mutual Reserve Fund Life Association. l)ickst)n V 7 XaseiiLjast v. Miller 3 Xantdu. McKa\- v 7 ".Xanton v \'ilIem'U\-e 10 Xash, .Vshdown v 3 Xash, i laiyht v 2 National T-^lectric Manufacturin<;- Co. v. Manitoha Electric & Cas Lioht Co. 9 Xeary. Law v 10 ,; Xelson v. Tuney T.W. w Xevins. Re - ;|Xevins, Recr. v '- ' X'euiiian v. Lvons 8 Xichol V. Coclier 12 Xicholson and Ry. Commissioner, Re . 6 ~ ~~~ 7 Xickel, Mcintosh v 4 \icol. Lawlor v 12 .^Xixon. Hay v. 7 |Xixon V. Lo^-ie _|. Page of Column \ .li. ot l)igt,-t. 430 481 1 18, 191 647. 648 656 151 121 367 245 471. 51^- 562 334 141 119 127 74 209 31 37 35 574 125 241 24J 250 213 652. 659, 664 37 275 212 41 592 173 29 T. 2g6 137 i77 153 221 3,"^4 177 358. ^^2 419 .U' 36 400 51 224 579 366 630 'n .1 xlvi INDEX OF GASES. Vol. Xurth .'viiicrican Life Assurance Co. v. .Sutherland 3 Nurlhcni i'aciHc & Manitoba Ry. Co., Lanadian I'acilic Ry. Co. v 5 Xurthcrn i'acitie Express Co., Martin v. 10 A'onh iJullcrin, iicrnardinc v 6 Korth Dulfcrin Election, Re 4 North Xor lolls. Rural Aiunicipality uf, Curran v 8 iX'orthrup v. Tounsend i North-West C' mincrcial Travelers' As- sociation V. London Guarantee dt iVccident Co 10 North-West Electric Co., Walsh v 11 Nor"-West l""arnier v. Carman 6 North-West Navigation Co. v. Walker . 3 ■ 4 "~ ~ 5 North-West 'Jlionipson iv Ihniston Elec- tric Co., claimants, I'hilips Electrical Works V. Armstrong 8 North-West Timber Co. v. McMillan . . 3 North- Western National Ilank v. Jarvis 2 Northwood, Canadian Uank of Com- merce V 5 Northwood, liell v 3 Nugent, llaffield v 6 Nunn, Parker v 2 Obee. ]McMain v 10 O'lirien, Fair v 3 O'Connor. Re 12 O'Connor v. I'rown 5 O'Connor and Chadwick, In re . . . .T.W. O'Connor v. Fahey 12 O'Connor v. Kyle 2 O'Connor and Ward, In re T.W. C~)T)onohue, Fonseca v 4 O'Donohue v. Eraser 4 OT)onohue v. Swain 4 Ogilvic Arilling Co., McEdwards v. . . . 4 — ^ : — 5 Ogilvic [Milling Co. v. Small 2 Page of Vol. 147 Column of Uigi;.st. 37i 301 L-inlan 595 88 ( )ntari 259, 280 259 Ontari Ontari 256 99 20,381 Ontari 537 ( )ntari( O29 ( )ntari( 118 343 ( JiUarjc ^5 503 ' hitaric 406 ( )ntarif 37 ( )regon Cr Orr v. 48 2jy Orris, "^ 158, 175 Orton ^ 53 (^6, 545 Orton, 224, 342 5 '4 547 Osborn '- Osborn Osier ai Owens 30 Owens, 301 680 Pacaud 325 263 162 Pacific Page, C 293 397 Paisley 3^5 296 Parent c 220 284 44 3'/) Parker, T\'irker 469 46(j 3- i'arker, Parker, 476 64 1 arker. T larkes. 77 T20 T\irment t8i Patterso INDEX OF CASES. xh i Column of Uigl.■^,t. 373 259 20,381 343 505 66, 545 162 3')7 296 44 39^) 64 t8i \-ni Ci'Kfcfc, I'fiioron v 2 U'Xfil, Munroc V ..." 7 ( )inario ikiiik v. (_ia,i,mun .......... -• Ontario Hank v. (iibson '. ." . ' ." '? ~ 4 ( >inano Hank v. Has^jrart z, Ontario llank v. McArtlnir .... '.'. - Ontario Hank v. .Mc.Mickcn . ". .. .. ,. - Ontario liank. .Mc.Mickcn v - — — 6 — o f )ntario Hank v. Miner . . .T \\' ( Mitario r.ank v. Pa,o-c . . . , Ontario Hank v. Scott '. . .' " o Ontario |!ank v. Smith .'. V. '.'. ' ' . '. 5 Ontario IJank v. Sutherland.. ...'..' 2 ( )rc,t;on & Transcontinental Railway Co., " Crotty V '....' ■> Orr V. P.arrctt 6 Orris. Watcrous v 6 Orton V. Jlrett ". . . . . ." .' .. i-. Orton. AIc^Fonan^lc v "...'.! - Osborne v. Care\- Osborne v. Inkster . . . . . . . [ 4 Osier and .\ttornev, Re .T W Owens V. Burp;-ess .'....'. .ii Owens, Latta v ][ ]] [] jq Pacand v. Dubord 3 Pacific Coast Lumber Co., Creij^hton v t"-' Pat^e, Ontario Pank v ' ^ Paisley V. I'.annatvne .. .. 4 Parcntcn.u v. Harris ^ Parker. Dou.q-las v j2 I'arker v. Nunn . . . 2 Parker, Proctor v . " " " " j ^ Parker. Proctor V .". J2 Parker, Reff. v " .' . ' ' ' ' g Parkes, Rertrand V .. 8 T'armentcr, Chevrier v. . . 7 Patterson, Re ^ Page of Cithimn Vol. of Digot. 40 245 46 289 406 (..9 440 204 346 381 40, 64, 68 203 297, 408 412,514 152 155. IZ5 513 '67 82, 3-'4 677 343 160 77 600 107. 3.S9 261 242 182 300 LS6 177 ■ 448 76 IQ3 , 350 ^?s7 3^7.319.3.^0 309 ^77 205 S^ /.T 306 153 LS 457 .=;46 677 225 •■^•^-^ 329 84, 292, 35 1 152 30 i6s 485 .S28 203 175 194 274 ^■S7 xlviii INDEX OF CASES. PatkTsoii V. i'.rown i i Patterson 61: llio. Co. v. Delunnc 7 i'attcrson v. KL-iir.cdy 2 Paulson's t'laini, Uf 7 J'cacc, iJruwn v 11 Pearson. Calloway v 6 J'c-arson v. C. I'. R u I'carson v. Sclioul TrustcL's of Si. Joan llaptistc (Ct-nti-fJ 2 I'earson, \\ ickson v 3 I'errct, -Acme Silver Co. v 4 J'crret, Winnipeg Jewelry Co. V 9 Perrin, Massey Aianufacturing Co. v. . . 8 Perry, Cameron v 2 Peters, Alerelumts' i'.ank v I I'eterson. Dundee Mortgage Co. v. . . 6 Peterson, Keg. v 6 Pettitt V. Kerr 5 I'liair, Whitla v 12 Philion, Carscaden v 9 Philips V. Canadian Pacific Ry. Co. . . i IMiilips I'-lectrical Works v. Armstrong, Xorth-west 'Jliompson & Houston Electric Co., claimants 8 riiilips, McCuaig v 10 Phillips V. Prout 12 Phoenix Insurance Co., Rogers v 10 Pike. ii-Ci^. V 12 I'ion V. Romineux 7 Plante, Reg. v 7 Plaxton V. Monkman - i Plaxton, \'ivian v 2 Plummer \\'agon Co. v. ^\'ilson 3 Pockett V. Po'ol II Pollock V. ( ioldstein to Poison V. r.urkc 5 Pool, Pockett V II Portage la Prairie, Kennedy v 12 Portage, Wcstl)ounic & North-Western Railway Co., Armstrong v i Portage la Prairie, Atchcson v 9 l''ortage la Prairie, Rural Municipality of, Atcheson v 10 Page vi Coliiuiu Vol. jf Digt>t 612 253 594 120 ^\^ 3'M 602 409 364 1 12 463 i6t 570 457 501 141 457 231 37^ 65. 66 311 359 360, 439. 50^ 122 135 1 10 57" 48 3'S- 6()4 143 477. 4<'^.= 667 314 591 165, 169, 171 537 371 2^7 124 68 irfi 275' 508 92 222, 22; 631 508 31 170 275, 508 634 344 192 39 i INDEX OF CASES. XhN ColuU'.ll 391 463 570 )0, 439, 508 57<:' 477. 4^5 .5, 169, i/i 116 2, 222, 22' 508 170 Vol J'orlagc la I'r.'iiri'.'. .\icArthur v 9 I'mta^f la l'raiii.\ .\u-Alill:m v 11 rtiriai^v la I'rairR' Manufacturing Co., llmwn V 3 rnrtrr. .Sylvcstrr v 11 I'lMtii^al, kc ."Sutherland and 12 I'dudric'r, I5risebois v 1 I'nynrr, Hank nf .Montreal v 7 J 'rait v. Walk 2 I'ritcliard v. I iaiKJViT i I'n'ttic', Iniprrial Hank v i I 'lit tie, Mycr.s v l I'riltir. .Monkuian v 3 iTootor V. I'arker 11 Proctor V. I'arkcr .. 12 I'rotcstant School J)istrict of I'.radlcv, -Moore V T Tn.ut. rhilli])s v 12 Prud'houinie. Rej^-. v 4 (ju Appt'lle \ alley h^irniing- Co., Re . , 5 ^ (juebec I Sank v. [Miller . . . 3 ■f (Quintal V. Chalmers 12 J\ae, innian v 10 Rail\\av Coniniissicjner and .\icholson. Re 6 Railway Commissioner, Rowand v 6 Railway Commissioner and Scott. Re . 6 Railway Commissioner. Re Nicholson and 7 ■ Rainy Lake Lumber Co., Taylor v i Rajo'tte V. Canadian Pacific Rv. Co. .. 5 Ramsay, Steel v 3 Rankin, Harris v 4 Rankin v. McKenzie 1, Rapid City Ivarmcrs' Elevator Co., Re . . i; TO Rapid City Farmers' Elevator Co.. Cur- rie V 12 Rapid City Farmers' Elevator Co.. Vul- can Iron Works Co. v 9 r.-ipc of Cohmui \'ol. of Digi>t. 5,ss ji<) -M3 9S 543 -'9 270 213 522, 52S ■;2, 528.360 277. 5 IS 3' -7 r)S4 4^S 23.64,411 528 24, 2 1 3 40 1 I '-'.3 25') 160 i;i, I ;2 231 -77,673 411 419 401 193 400 240 297- ?>^K-< 426. 463 507 305 T15. 5 '2 323.354 162,204,282 57^-?74 151- 152. 153 68 r 105 577 w^ INDEX OF CASES. Vol. Real Estate v. Molcsworth 2 3 Kc'd River liridgc Co., Rolston v I Red Rivt-r 'I'ransportation Co., Trot- licr V T.W. Reed V. Sniiili i Rej^^ V. Adams and Jackson 5 Rej^. V. Anderson T.W. Rey. V. I'lUrnes 4 Re,Lj. V. Ileale 11 Re^^ V. J'.iuRS 2 Rv^. V. lUackstonc 4 Res;. V. P)rice 7 Reg. V. I'.ryant 3 Rei;. V. Ijuchanan u Retj. V. l)indi. 93 1S2, 240 Rei" 476. 483. 525 u.t IlO. 170 kc^ 235 i i ''^ f ^^'^'^ 2.^5 14' 651, ()5'i Reg. Ri'o- ■33 210, 214 28 1 . 400 ]^'g. Reg. 177 43« ]<<■•'-. 448 21(1 Reg. 448 18 101, Jcnj 44-' Reg. Re--. 296 22-^ Reg. 627 2-'3 Rey. I 214.215.274 Reg. 190 364 Reg. 121 302 Reg, 2i)7 71 Reir. 333 2 I Reg. 261 2u_, _7 Reg. 613 2-\l Reg. 183 212 Reg. 136 209, 2 1 -, Reg. 235 508 Reg. 309 282, 36.' Reg. 364, 400 Reg. ^ 571 43-' 567 "3-3')^ • Rc"- \ 325 81 226. 23(1 226, 274 401 281 ■ • Rc"'. ^ 535 222, 274 303 2T2, 431 Reg. V 134 20S 78 2il Reg. V Reg. \- Reg. \- 75 232 15 492. 403 78 2.=; I 153 210 .')■ J 210, J14 281. 400 21G 101. J("> 44-' 225 . -'I5.274 2 I 2u^, -^7 212 209, 21; 282, 36 J 364, 400 43-^ "3.3')^ 226. 2,V) 226. 274 2S1 222, 27.; 2T2. 431 208 231 25- 492. 403 251 2IC 102, 2U 220 211 Vol. VoJ. Keg. V. Gdld.staul) 10 497 J\t'ti'. V. Ciraiiiiis 5 153 Keg. V. Ilamiltcm 12 354- 5"7 Keg. V. llcniiaii S 330 Keg. V. Ik'irell r2 i^S. 522 Keg. V. i lodge 12 3i() Keg. V. IkiKltii 3 571; Keg. V. ll'iliiiaii 10 2-jz K'.'g. V. 1 louse 2 ()S Keg. V. lli'wes 3 331) Keg. V. jruell (1 4(n) I'ieg. V. Kennedy 10 33S Keg. V. Lacdursiere 8 302 I'ieg. V. Le\ i{|iie 3 3S2 J-Jeg. V. r.VDiis 5 I :;3 Keg. V. McDonald and V'anderherg . . 8 40 1 J\eg. V. McKenzie 2 i()8 Keg. V. jMonkinan 8 501) Keg. V. Morgan 5 '63 Iveg. V. Xeviii.s 5 133 Keg. V. Parker 9 203 Keg. V. Peterson 6 31 1 Keg. V. Pike t? ^14 Keg. V. Plante 7 537 Reg. V. Pnid'homine 4 2-9 Keg. V. Robertson 3 6t ^ Keg. V. Kiel 2 302, \2\ l^og. V. Kowc T.W. 300 ]\eg. V. Saiindcns 11 "--() Keg. V. Scott 1^ ^'^,S • Reg. V. Shaw 4 ^04 7 51'*^ Keg. V. Starkey 7 43, 26.' 4S(} K"-- '■• Xi".?,""'-''" 3 509 J\eg. V. \\ illianis 8 -> -2 Reg. V. Winslow T2 649 l\eg. V. Ziehrick 1 1 _j^-2 l-Jeid V. Whiteford i 'xq Kcidle. Rigby v n joq Renwick v. Berryinan 3 -^^y » Coliiinii of DiKt'st. 4'J7 210 56, l\<) J..'(», 231 12, 11)1,211 J20, 399, 432 228 216 -'25 216 3f'4 228 -'3 22, If 13 21 1 43' 210 228 363 289 433 210 4.^.T 217 222, 2 '^ 431 2.-1.4.^7 ri4 T13. 210. 218 y77> 509 IK), 636 230 226 2 TO, 221, llCt 100, 209, 212 214,363,433 TOO, 221 I T , 400 283 2t8 66.) 26-. 60 r, 620 1, i „i^ >.^IP>.-^F»P'^»^ 111 INDEX OF CASES. Vol. J'i.ex V. Slcwart 6 Rice V. Murray 2 Richaril, Attorney-General v 4 Richard v. Rowe 4 Richard, Stewart v. 3 Riel, Reg. v 2 Rigby V. Reidle 9 Rinn, Culhn v 5 Ripstein v. JJritish Canadian Loan Co. . 7 Ritcliie V. Grundy 7 Ritz V. J'roese 12 Ritz V. Sohpiidt 12 Roach V. Canadian I'acific Ry. Co i Robertson v. Brandcs 11 Robertson v. Dumble I Robertson Claim, Re 10 Robertson, Elliott v 10 Robertson v. McMeans 1 Robertson, ]\U)ls(jns lUmk v 5 Robertson, Reg. v 3 Robertson v. Winnipeg 6 Rol)ertson v. W'reiin 10 Robinson, IJose v T.W. Robinson v. Huston 4 Robinson v. Hutcliins i Robinson, Monknian v 3 Robinson, iMorrison v 8 RolMnson v. Scurry I Robinson v. Sutherland 9 Robinson v. Taylor 10 Roche, King v 11 Rockwood F.lection, Re 2 Rockwood Electoral Division Agricul- tural Society, Re 12 R(u^ V. Massey Manufacturing Co. ... 8 R(jfF V. Krecker 8 Rogers v. Commercial Union Assurance Co 10 Rogers v. London & Lancashire Insur- ance Co 10 Rogers v. London & Liverpool & Globe Insurance Co 10 Rogers v. Phoenix Insurance Co 10 i Page of Column Vol. of Digc>t. 257 456 Roqer 37 Rokeb 336 Rolsto 112 249.517 Romie 610 Rose, 302, 321 Ross, ( 139 8 678 Ross ^ Rt)ss ^ 119 319.387 Ross \ 532 346 465 23. 203, 548 Rossiti Rotliw 138 417 Rourk( 158 9" , 264 i 321 622 Routle 61 Rowan 628 Rowan 348 429 Ivowan 343 Jvowc, 613 Rowe, 483 528, 535 Rdwe, 378 87 I'Inval 368 Kuddel 71 323 Ruddel 122 S44 640 218 Rules i Rules c 257 199 91 103, 366 Rules c Rules T 33 2() 38t Kunil)lc T29 262 Russell Rutheri 655 ■ 126 140.637 Ivutherl Rutherf 230 80, 87, 88 Rutlieri Rutledt: 667 35. 385 Rutledq Rutled- Ruttan, 667 --i R\an, A Rvan, I 667 Rvan.J 667 R\an V .»»*• INDEX OF CASES. liii Column of Digc>i. 456 249.517 678 319. 3«7 3. 203, 548 417 622 429 528, 535 323 544 91 103, 366 29 262 140,637 80, 87, 88 35. 3^-^ Page of Vol. Vol. Rogers, Stephens v 6 298 Rokeby, Commercial i'.ank v 10 281 Rolston V. Red River Bridge Co i 235 Romieux, I'ion v 7 591 Rose, i'.ole v 10 633 Ross, Collins v 7 581 Ross V. Doyle 4 434 Ross V. Morgan 7 593 Ross V. \'an Etten 7 598 Rossiter. Alerritt v T.W. I Rotlnvoll V. ^lilner 8 472 Rourke & Cass' Claim, Re Empire Brew- ing and Malting Co 8 4^4 Routley, Manitoba & X.-W. Loan Co. v. 3 296, 521 Rowand, Livingston V 8 298 Rowand v. Martin 7 160 Ivowand v. Railway Commissioner . . 6 401 Rowe, Hill V 3 247 Rowe. Reg. v T.W. 309 Rnwe. Richard v 4 112 lloyal City Planing Mills v. Woods . , 6 62 Ruddell V. (Jarrett 12 563 Kuddell V. Georgeson 8 134 9 43.407 Rules and Orders 5 435 Rules and Orders 8 607 Rules of Court 11 6G1, 662 Rules Relating to Election Petitions . . 8 609 Kumblc, AIcKay v 8 86 Russell, Haddock v 8 25 Rutherford v. Bready 9 29 K'utherford, Gerrie v 3 291 Rutlierford, \'elie v 8 168 Rutherford v. Walls 8 96 Rutledge, Day v 12 290, 309, 451 Rutledge, Hughes v 10 13 Rutledge, McCaffey v 2 127 Ruttan, Hudson's Bay Co. v i 330 lyvan. Attorney-General V 5 81 Uyim, Browning v 4 486 Ryan, Jenkins v c, ijo Ryan v. Whelan 6 565 Column of Digest. ^o6 269, 605 423 608 34 33. 370 24 252 587, 648 418 198 ■"Vifc ■■% liv INDEX OF CASES. Vol. Sample, John Watson Manufacturing ' Co. V 12 Sanford Manufacturing Co. v. McEwan lo Saskatchewan Coal Go., Gait v 4 Saskatchewan Coal Mining Co., Re . . . 6 Saul V. Batenian 6 Saults V. Eaket 11 Saunders, Reg. v 11 .Sawyer v. ilaskerville 10 Scanlan. Blanchard v 3 Scarry and Joyce, Re 6 Scarry v. Wilson 12 Schmidt, Ritz v 12 Schneider v. Woodworth I School Trustees of St. Jean Baptiste (Centre), Pearson v 2 School Trustees of Winnipeg v. Cana- dian Pacific Ry. Co 2 Schultz V. Alloway to Schultz V. Archibald 8 Schultz V. Credit Foncier Franco-Cana- dien v 9 10 Schultz, Fonseca v 7 Schultz V. Frank 8 Schultz, Sutherland v i Schultz V. Winnipeg 6 vScobcll, ^lanitoba & N.-W. Loan Co. v. 2 Scobel, \'ivian v i Scoones. Clougher v 3 Scott. Caston v t Scott, Clark v 5 Scott and City of Brandon, Re 10 Scott, Conway v 3 Scott V. Griffin 6 Scott V. Imperial Loan Co 11 Scott. Ontario Bank v 2 Scott, Reg. V 3 Scott and the Railway Commissioner, Re 6 Scott V. Thompson 7 Scott, Toronto Land Co. v i Scott V. Winnipeg 1 1 Page of Column Vol. of DigCat . Scottis 373 630 35f Bl Scurry Scagra Scguin Sexsmi 304 593 n( 189 4= 597 27,< Shantz Sharp, Sliarp Sharp, 559 652 i3 13 67? a8i 216 Shaw V 138 41 74. 41: Shaw, ] Shields 161 Shields Shields, 163 534, 570, 64r Shirlev, 221 653, 664, 66; Shc.al L 284 iShore, Ti 70 Shore, I 158,417 Shore V 458 ^Shorey 345 26. ;8f Short. ) ^3 Short, ^ 35. 269 114, f>:' Siftoii V 125 Simon. I2S. 192 Siinpsor 238 Simpson 117 Sinipsor 281 Siinpsor 494 67. Sinipsor 557- 636 Sinclair, 116 I7- Sinclair 190 160 66i fSinger ^■ 448 Sin not t. 190 26, 37, 26: Sinnott, 632, 63- Slinqerl; 472 425, 60 Co. '25 Small, (1 84 39. 2(^: INDEX OF CASES. Iv Column of Digc-it. 359 4? 278 13' 673 74. 41,' 534. 570, 64^ 653, 664, 66; 26. 58' 114.6:' 67: 170" 26, 37, 26. 632, 63- 425, 60 39. 26: Vol. jScottish Manitoba Investment Co. v. Blanchard 2 Scurry, Robinson v i Seagram, Colquboun v 11 Seguin, Thompson v 8 Sexsmith V. Montgomery 9 Shantz, Brown v 7 Sharp, Aetna Life Insurance Co. v . . li Sliarp V. ATcBurnie 3 Sharp, Taylor v 2 ■ 3 ■ 8 Shaw V. Canadian Pacific Ry. Co 5 Shaw, Reg. v 4 ■ "7 Shields V. McLaren 9 Shields V. McLaren. Re Kennedy .... 9 Shields, McLean v i Shirley, i'ortier v 2 Shoal Lake Election 4 Shore, Re 6 Shore. IJoulthee v i Shore V. Green 6 Shorey V. Baker I Short. Ward v I Short. Young v 3 . Sifton V. Coldwell 11 Simon, Inch V 12 Simpson. Central Electric Co. v 8 Simpson v. Ellis T.W. Simj)son, Jones v 8 Simpson ^v :McDonald 6 ' Sniips(^n V. Stewart ro ;Sinclair, ( iemmel v _ r ' ^Sinclair v. Mulligan 3 "I ~ 5 Smger Sewing ]Machine Co., Ereeborn v. 2 Sitmott. Bisson v i Sinnott. Monkman v 3 Slingerland v. Massev ^Manufacturing <^o ' ^.10 Small. Ogilvie Milling Co. v 2 Page of Coliuiiii Vol. of Digest. 154 369 257 339 79 173 253 42 141 161 183 35 4 ^63 198. 334 98, 533 404 518 182 175 • 599 278 269 270 57 254 305 480 22 322 527. 592 282 341 328 302 653 624 I 94 31 ^32 124 302 19 176 277. 2S4 fs 481 I 1 I. U2 17 253 26 170 21 = 354 120 1 Ivi INDEX OF CASES. '^mr- Vol. Smart v. Moir 7 8 Smith, Re Magee and 10 Smith, Bergman v 11 Smith, Blair v i Smith, Brimstone v i Smith V. Edmunds 10 Smith, Fricscn v 8 Smith, Grouette v 2 Smith, Imperial Bank v 8 Smith, Ontario Bank v 6 Smith, Reed v i Smith, Smyth v 9 Smith V. Strange 2 Smith, Van Whort v 4 Smith, Wilson v 9 Smith V. Union Bank 11 Snider v. Boyd 11 Snow, Western Canada Loan Co. v. . . 6 Snowden, Harvie v 9 South Duft'erin, Morden v 6 South Norfolk, Rural Municipalitv of, Hall V .' . . . 8 South Norfolk, Rural Municipality of, V. Warren 8 Spain, Lafifcrty v 7 Sparham v. Carley 8 7 Spence, jMcKenney v T.W. Spence, Tecs v 3 Spence, Whitla v 5 Sprague v. liosant 3 Sprague v. Graham 7 Springfield v. St. Boniface 10 Stacey, Gait v 5 Stanhro, Re G. A i 2 Stark V. Stephenson 7 Starkev, Fuller v 8 Page of age I ^/ol. 565 203 I 364 5 302 240 131 3U 440 600 141 569 lOI 421 318 182 398 317.606 3^3 515 430 481 32 246, 448 61T II 430 392 5^9 398 615 120 263. 325 I 381 400 Column '"; of Digest. 164,267 Starke 547 560 30 128,237,26; 271. 530.539 288 22, 67, 72 452, 47-' 528, 535, 542 464 585 650 272, 273, 28r 282, 3or 60 r .,Starr, St. An An Mo] I'.ni i;oi 650 _ St. •^St. St. St. St. (iec St. Joh Steele 1 Stephei Stophei Stcphc! Stepher Stevens Stevens Stewart _; Stewart fStewart Stewart .. Stewart ^Stewart -;Stewart Stewart Stirsky Stohart Stock. \ Stover \ Strange. Strcinier Sumner. J^uii Lif( Sutherla men Sutherla Sutherla Sutherla anc( Sutherla Sutherla: IKTDEX OF CASES. Ivii Column of Digest. 164, 267 547 560 30 28, 237, 2i)- 71.530.539 288 650 22. 67, 72 452. 47-' 28, 535- 542 464 5^5 650 72, 273, 281 282, 301 601 Vol. Starkcy, Reg-, v 6 '- • 7 Starr, liacjel v 2 St. Andrew's, demons v 11 St. Andrew's Election, Re 4 St. P)oniface Election, Re 8 St. Roniface v. Kelly 2 St. lioniface. Spring-field v 10 St. (leorge v. /ownsend i St. John's Cathedral v. Macarthur .... 9 Steele V. Ramsay, Bratt, claimant .... 3 Stephens, Case v 6 Ste])hens v. McArthiir 6 Stephens v. Rogers 6 Stephenson, Stark v 7 Stevens. Manitol)a Mortgage Co. v. . . 4 Stevenson v. Blanchard 2 Stewart, Bucknam v it Stewart, HiuLson's Bay Co. v ... 6 Stewart v. Jackson 3 Stewart, Rex v 6 Stewart v. Richard 3 Stew art, Simpson v. 10 Stewart, Templeton v 9 Stewart v. Tiirpin i 2 Stirsky v. Townsend i Stohart V. Axford 9 Stock, \\ Watson A[anufactiiring Co. v. . . 6 Stover V. ^larchand 10 Strange, Smith v 2 Streimer v. Merchants' Bank 9 Snmner, Lee v 2 Sun Life .Assurance Co. v. Tavlor. ... 9 Sutherland. Dundee Mortgage &• Invest- ment Co. V I Sutherland v. Mannix 8 Sutherland v. McKinnon 3 Sutherland, Xortli American Life Assur- ance Co. V 3 Sutherland, Ontario Bank v 3 Sutherland and Bortigal, Re 12 Page of Column Vol. of Digest. 588 102 43, 262, 489 92 111,245 514 259 446, 474 257, 260, 261 219 341 615 99 391 305 17, 22, 330 552 III, 496 81. 115.325 Z^7> 389 298 394 381 4T0 78 491,625 8 568 4 257 6to 403. 404 176 487 323. 339 T82 244. 370. 371 90 1 8 338 146 322 448 lor 546 353 19 T 89 309 308 .MT 4j6 608 T7« 147 261 543 572 Iviii INDEX OF CASIDS. Vol. Sutherland, Robinson v 9 Sutherland v. Schultz i Sutherland, Western Canada Loan Co. v. i Sutherland v. Young i .Swain, U'Donohue v 4 Sylvester v. Porter 11 Tait, Re 9 Tait V. JJurns 8 Tait V. Calloway 1 2 Tait, Wolf V 4 Taylor and City of Winnipeg, Re . . . . 11 12 Taylor, Crotty \' 8 Taylor v. Gardiner 8 Taylor, Imperial Uank v i Taylor v. Rainy Lake Lumber Co. ... i Ta}-lor, Robinson v 10 Taylor v. Sharp 2 3 . 8 Taylor, Sun Life Assurance Co. v 9 Tees V. Spence 3 Tees, Wood v 5 Templcton v. Stewart 9 Tetrault v. Vaughan 12 Thi1)audeau, Re T.W. Thobaudeau v. Leggo 7 Thomas, Cook v 6 Thompson v. Didion 10 Thompson, Scott v 7 Thompson v. .Scguin 8 Thom])son. Toussaint v 4 5 Thompson v. ^^ allacc 3 — — 3 Tiz;:ard, Union Dank v 9 Todd V I^nion P)ank of Lower Canada, i Page of Vol. • 199 13 201 38.94 476 98 617 19 102, is^i 289, 312 59 420 18, 479 188 310 244 240 33 35 4 163 89 430 256 487 457 149 38 286 246, 301 472 79 499 =;2 686 504 149 119 Column of Digest, 40, 619 160, 276 29, 124, 346 I 238 164, 171 172, I 99 417. 543- 59 196 373 453 146 26. T3t 190. 279 300 2t 29 T T08 38 326 264 207 193 341 639 73 690 267 339 388 242 336 504 167 39. 524 612 533 578 656 517, 606 292 327 22S 329 201 31 ^73 356 s isii INDEX OF CAS£S. Vol. \\ hc'laii, Ryan v 6 W'hclaii, Watson v i Whellaiiis, llockin v 6 White V. Canadian Pacific Ry. Co 6 White, Daly v 5 White V. Louise 7 White, MuUij.,ran v 5 Whiteford, Reid v i Whitham v. Cooper 2 Whitla V. At,mc\v 11 Whitla V. McCuaig 7 Whitla V. Phair 12 Whitla V. Spence 5 \\'ickson V. Pearson 3 Williams v. Ala^ee 8 Williams, McMillan v 9 Williams. Reg. v 8 Willoughhy, Westbrook v 10 Wilson, Boyle v 9 Wilson V. District Registrar, Winnipeg. 9 Wilson, Elliott v. ..... 6 Wilson, Plunimcr Wagon Co. v 3 Wilson. Scarry v 12 Wilson V. Smith 9 Wilson, Waterous Engine Works Co. v.. 1 1 Wilson V. Winnipeg 4 Wilton V. Murray 12 Wilton V. Wilton 4 Winkler, Dick v 12 Winkler. McClary Manufacturing Co. v. 7 \\'innipeg, Barrett v 7 Winnipeg v. C. P. R 12 Winnipeg. City of, Re Elliot li Winnipeg. City of, v. Cauclion .. . .T.W. Winnipeg. City of. Clarke v T.W. Winni])eg. City of. Re Taylor tt Winnipeg Dairy liy-law. Re T2 Winnipeg. Eastern Judicial District P)oard V 3 4 Winnipeg Electric Street Railway Co., Dixon V 10 II PaRf of Column Vol. of Ui gcst. 565 300 521 169 94. 100 03 231 50 1 40 19 II 333 66 42J 454 404,407,412 122 125, 127 12S ."^O^ 48 204 457 (>'3 17 180 627 342 690 180 215 .595 63 68 216 318 50 287 193 144. 457 35 247 227 160 624 127 273 581 650 358 350 265 56 420 18. 479 537 323 660 241 528 INDEX OF CAS£S. Ixiii Column of Digest. 94. 100 501 3>^.^ 422 ,407.412 . 127 12S 48 .294 613 180 593 50 144.457 247 160 650 265 241 \'nl. Winnipeg Electric Street Railway Co., Lines v 1 1 Winnipeg Electric Street Railway Co., Woollacott V 10 Winnipeg I'^lectric Street Railway Co.. Winnipeg Street Railway Co. v. . . 9 Winiiipeg v. (iuilcr 3 Winnipeg cS: i hulson's Bay Railway Co.. J"li. 26, 55 J 656, 670 288, 572 10 174. 201 127 368 42S 191 CASES AFFIRMED OR REVERSED 203 526, 680 ^5- 233. 237 'i.525o3= 16.405 93 522. 544 8s, 201. 20fi I IN THE Supreme Court of Canada AND THE Judicial Committee of the Privy Council. A4ulnwn V. Manitoba Free Press Co., \'l. ?;«; aniriiied. XX. S. C. K., 4J. Aitnriicv-dciural v. Fonseca, V. i-.^'; reversed. XVII, S.C.R. Oij. iJarrett v. City of Winnipeg. VII, _'7,^; reversed. XIX. S. C. R.. .?74; resUirid (iH(jj) A. C. 445. Beniardine \. Xnrth Dufferiii, VI. »S; reversed. XIX, S.C.R., 581. Canadian Paeitic Railway Co. v. Cornwallis. VII. I ; affirmed, XIX. S. C. R.. 702. C'-llins V. Ross. Lisgar Election Case, VII. 5Sr; i)artly aftirnied, and partlv reversed, XX, S. C. R.. I. Day V. Rutledge. XII, 290; affirmed, XXIX, S. C. R., 441; sul). nom.. Lawler v. Day. Oederick v. Ashdown, IV, 139; re- versed. XV. S. C. R., 227. Farmer v. Livingstone. T. W., 233; reversed, V, S. C. R., 221. Federal Bank of Canada v. Cana- dian Bank of Commerce. II, 257 affirmed, XIII, S.C.R. 384. Gray v Manitoba & North-Western Ry. Co., XI, 42; affirmed (1897) A. C„ 254. I.ogan V, City of Winnipeg, \'ni.3; reversed (1892) A. C, 445- .Martin v. Manii(ji)a Free Press Co., VIII. 51; affirmed. XXI. S.C.R.. 518. Martin v. Xortliern Pacific Express Gi.. X. 5u5 ; riversed, XX\'I, S.C.R.. i'35- Mordcn v. Soiitii DutTeriii. \'I. 515: reversed. XIX. S.C.R.. 204: snh. nom.. Lynch v. Canada N.-W. Land Co. McMillan v. Rycrs. IV. 76; reversed, XV, S. C. R.. 194. Ryan v. Wlielan, VI. 565; affirmed. XX. S. C. R.. 65. Ste()hens v. McArtluir, VI, 496; re- versed, XIX, S.C.R., 44C). Turner v. Francis, X. 340; affirmed. XXV. S.C.R., 110. Walsh v. North-Wesl Electric Co., XI. 62(); reversed and original judgment of T.iylor, C. J., re- stored, XXIX, S.C.R., 33. Winnipeg Street Railway Co. v. Winnipeg Electric Street Rail- wav Co., IX, 219; affirmed (1894). A.C., 615. Winnipeg v. Canadian Pacific Rail- way Co.. XII. 521 ; appeal pending in the Supreme Court of Canada. ! il M A DIGEST OF THE REPORTED CASES IN VOLCMKS Temp. Wood and I -XII of The Manitoba Law Reports. ABUSE or PROCESS. Sec Elections. Ill (e). ACCORD AND SATISFACTION. By Subsequent Contract. ] — Plaimitts sold gouds to dctcndant, to be shipped upon a particular day. They were not shipped until after- wards. The defendant then wrote to tiie plaintiffs refusing to accept the goods unless upnn extended terms of credit, to whicli the plain- tiffs assenied. and the defendant then accejjted the goods. //(•/(/. that the defendant had waiv- ed any right to damages under the first contract, the second being a sat- isf.action of tlie breach and there be- ing tlierefore no defence the jury notice should be struck out. Coris- tinc V. Mrncics, II. 84. Pleading.]— The defendant pur- chased from the plaintiff a binder, giving notes in payment, .\fter the first niite became due the defeiulam wrote to the plaintitT saying he was not able to pay for tile machine, and offering to pay for its use. He again wrote to the plaintifT, instruct- ing him to sell the machine to the best possible advantage, to draw a note for the balance, and to send thi.~ new note with the old ones to C. at the town where defendant re- sided. Plaintiff sold the binder, and wrote to defendant, asking liim to instruct a solicitor, at the place where plaintiff 's agent (who had been acting in the m.atler) was. to settle the matter. The defendant dill nothing further. //i7(/, in an .action upon the orig- inal notes, that the plea was prob- ably bad. but in any case was not [, roved. Pccriiv^ v. ILiydcn, III. 21Q. ACCOUNT. Bill in Equity.] —Circumstances under which a bd! for an acciUiU wili lie discussed, fohusoii v. I.tiiid Corporation of drunla. VI. ~,j~. Prior Assignment of Account— /•'»•!!(((/.] — Plain'-iff. as assignee of M. & G.. under an assignment for the benefit of their creditors, sued defendant to r^ cover the amount of an aL'Count (Ir.e bv him to M. & G. Defendimt i)lea(led that prior to the assigmnent to the plaintiff M". iV- G. had .assigned the .account in question to S. by instrument in writing. Plaintiff replied netting f;> facts showing that the .assignnreni to S. was void as a fraudulent preference. J 3 AFFIDAVITS. 4 Held, oil denuirrcr, that this rc- plicaticiii was bad because tlie as- signment to S. could not be declared fraudulent and void in this action, as S. was not a p;irty to it. Hcrt- rand v. Hooker. X. 445. Note for Account Outstanding.] — Defendant was sued for the amount of an account for goods obtained from Spratt & Co., the account hav- ing bt^cn with other.: sold to plain- tiff by the assignee in insolvency of Spratt & Co. Defendant showed that before the assignment he had given Spratt & Co. a promissory note for the amount of the account and that such note was outstanding in the hands of a Bank. It appear- ed, howe\-er. that before the note was given the sheriff had taken pos- session of Spratt & Co.'s business under an order, in another action, for an attachment issued under The Queen's Bench Act, 1895. and that the note w;is in the hands of Spratt & Co. until after its maturity. IlcJd. that defendant could not have been compelled to pay the note to Spratt & Co.. if they still held it, because they had no right to the money, that he was not liable upon it to the R;ink which took it after maturity, ;ind that plaintiff was en- titled to judgment. Held, also, that it was not neces- sary to make the holder of the note a partv to the action. Clay :■. Gill. XII, 4(56. Sec also ExEC'ToKs .\Nn .Vdmixis- TR.\T01y of tlic writ annexed to tlie affidavit, upon which, as also up- on the C(ipy served v.as indorsed, "a notice of the name and residence of the attorney by wlioni the saici writ uas issued, and I'lngli^h notice of claim, particulars of claim, and no- tice in case of non-appearance of said defendant according to the statute in that case made and pro- vided." The writ annt'xed to the .'iffidavit was specially indorsed. field, that there was sufficient proof that the copy served was also specially indorsed. ^fL•D.'llald v. Pracoii. IV. 452. Form.] — The affidavit of service of the ajipointment and subpccna showed that the defendant was per- sonally served " with a true copy of the subpaMia hereunto annexed marked B. and of the said appoint- ment marked A. by delivering such appointment to and leaving the ^ame with the said John F. Howard [iersonally." Held, that upon a motion to put a party in contennpt the material must III- strictly correct and that the affi- davit of service was insufficient as to the subpoena. Doll v. Ho-ward, X. 635 II. Affirmatioxs. Affidavit or Affirmation— .-J k//;- "yity Of Connnissioncr — Truth of Contents of AfHnuation — Pleading —Special Damages —Benefit of an .let.]— so Vic. (M.). c. _'3. enacts that no person shall publish a news- paper until " an affidavit or affirma- tion .... shall have been delivered to the prothonotary." .... The affidavit or affirmation was to set [ forth certain particulars, and power I was given to any justice of the peace ': or commissioner to take the affidavit or affirmation. Held, that an affirmation was suffi- cient although made by a person not entitled to substitute an affirmation for an affidavit. Such an atTirmation was made l)y the manaRing director of a Company. In the absence of e\i(lence as to his duties. field, that the affirmation was sufficient. Tlie aft'irmation was en- titled. " In the p.iaiter of The Mani- toba Daily Free Press (a daily news- paper) and of chapter 23 of tlie Stat- utes of Manitoba, passed in the fifti- eth Victoria;;" commenced, "I, W. F. L.. of . journabst, do solemnly declare and affirm;" and concluded, " and I make this solemn declaration, conscientiously believing the 'inie to be true, and by virtue of ' The Act respecting Extra Judicial Oaths.' " The commissioner's certi- ficate was as follows: " Soleirinly declared and affirmed before me at tlie City of Winnipeg, in the County of Selkirk, tliis 9th dav of Decem- ber, A. D., 1887. John' B, McKilli- gan. a commissioner, &c." The authority of the commissioner to take the affirmation was derived, not from the Act respecting Extra Judi- cial Oaths, but from the Act above quoted or 49 Vic, (M.), c, 2. Held, that the affirmation was. nevertheless, valid. There was no proof that the person bef, ire whom f; '^ affirmation was taken was a commissioner. Held, that the onus of proof was on the ])erson asserting the lack of authority. There was no proof of truth of the affirmation. Held, that such proof was un- necessary. Aslidozen v. Manitoba Free Press Co.. \T, 578. Aliirmed, S. C. R.,\\X. 4;,. III. Costs. Old Affidavit Used on New Mo- tion.] — Upon an interlocutory appli- cation, defendant refiled material AFFIDAVITS. 8 « used by him upon a previous appli- cation. wliicli ho had made and which had been refused without costs. An order was granted upon tlic new ap- plication witii costs. Upon taxation, the master allowed the costs of pre- paring tlic old material, but upon ap- peal — Held, that such costs were impro- perly allowed. lloDj^cr v. BitshcU, V. 300. Affid.wit of Disbursements- Co.sTs, I J (m). -Sec IV. Examination, Order.] — i. An order for the ex- amination of a person who refuses to make an affidavit is discretionary. Under tlie circumstances in this case it was refused. 2. Before a person can be said to have refused to make an affidavit it should in its main particulars lie prejiarcd and handed to the person asked to make it. with the offer to modify or vary the state- ments according as he may be pre- pared to test if V. Brown v. Hooper, Til. 86. Order.] — Upon .a motion, defend- ant filed an affidavit of A. who after- wards made another explanatory affidavit at the instance of the plain- tiff. Held, that dcfend;uit was not en- titled to an order for the oral ex- amination of A. Carey v. Wood, TI. .^2. Co-defendants.] — Upon the ap- licatiiiii under 46 and 4" Vic, c. 2},. s. 16, one defendant made an affi- davit of njcrits. and the presiding Judge in Chambers made an order for the examination of two other de- fendants. Held, affirming firder of Dubuc. J., that the examination of these de- fendants was in the discretion of the Judge, and the appeal should, be dis- missed with costs. Imperial Dank V. Adamson, I. 96. Old Affidavits.] — Held, that where an affidavit had been used, and answered the purpose for which it had been filed, an order to exam- ine the deponent upon it will not be granted. Imperial Bank of Canada >: Taylor, I. 244. Old Affidavit.]— Plaintiff brought an action by ;i writ issued imder The Summary Procedure on Bills of Exchange -Vet, and defendant Com- pany obtained, on an affidavit of D., its president, an ex parte order giv- ing it leave to appear. The plain- fitT then obtained ex parte, from the Referee in Chambers, an order di- recting D. to appear before a special examiner and submit to be exam- inend I'ifa voce on his affidavit. In support of this application there was filed an affidavit of plaintiff's attorney that it was plaintiff's inten- tif.n to move to rescind the order gi\ing leave to appear. This order. ivith the examiner's appointment, was duly served and conduct money paid, ))Ut D. did not appear. A mo- tion was then mnde before the Re- feree to strike out the defence or set aside the order allowing appearance. The Referee made an order dirtct- inng D. to appear for examin;ition at his own expense and in default that the uance of der. I [rid, that the affidavit could n:it i)e read, and judgment was ordered. Anicrican Plumbing Co. v. Wood. ril, 42, Examination in Deponent's Dis- trict.] — /ill ['(•rial HiinL' v. ./'/.!,'»,<, I, 9^. v. [■'"okM. Real Property Act.] — A caveat under The Real Property .Act wa> .supported hy a document heginning: " I," so and s;). " make nalh and say," and ending: "And 1 m.ake this solemn declaration, conscientiously heliexiug the same to be true and in pursuance of the .Act respecting It.xtra-Judicial Oaths," Hi'ld. that this document was nei- ther an affidavit, nor a statutory de- claration. Scliiiltc V. .Irchibiild. VIII, 284. Irregularities— Foreign Affidav- its.] — Irregularities in foreign affi- davits treated leniently. Britisli Linen Co. V. McFzy.-en. VT, 292, Irregularities —5fv/i' of Cause.] — in an affidavit one defendant was named " Hon. John C. Schultz." In all other proceedings it was John Christian Schultz. field, that the affidavit could not be read. Attorney-General v. Fon- seca, V, .^00. \'II. Cross-references. See Co.sTS, II (ill). See Discovery. III. See Elections, III (c). See Ikjunction, I, See Re.\l Propertv Act, II, III, Sec See AGENTS. Princu'.\l and .Agent, Elections. IV. ALIMONY. Jurisdiction — Construction of Statutes.] — Bill f'lr alimony aid m;timenance. Held, upon demurrer — i. That, a - though by a strict literal interpreta- tion of Con, Stat., c. 31, s. 6, tV : Court would have no jurisdiction Uy decree alimony, yet ;i^ to so hold would make other jirovisions of the statute m-eaningless. a more liberal interpetation. one which would give the Court the jurisdiction it was evi- rieiit!y intended should be given. ^'Ught to be adopted. 2. That under Con. Stat., c. 31. s. 3. the Court has (lower to decree alimony. 3, That alimony may be decreed apart from divorce or judicial separation, al- though not so in England. 4. .\ sing'e Judge has jurisdiction to de- cree alimony. Ji'ood v. ll'ood_, I. 317. See Statutes, III. I\". IV. AMENDMENT. I. Conviction. II. Deckkf.. III. Paktiks. I\'. Pl.KAIlINGS. \'. On Motions. \'I. W'dit or Summons. \'II. Clt J. G. & W. G. Afterwards they struck out W. G.. and moved to strike out the defence of J. G. He defended on the ground that he liad ;i partner, hut declined to give his name. Plaintiffs then amended by adding W. R.. and went down to trial. The plaintitT's evid- ence showed that not W.B. but S.B. was the partner, whereupon plain- tiffs moved to amend by striking out W. B. Sinnce the commencement of action, the statute of limitaiiuns would have barred the ren^edy against S. B. The plaintiff's evid- vMice as to the circumstances under which the note was made was con- tradictory Leave to amend was re- fused, and a non-suit entered. Mcr- eliaiits' Ihink v. Good. \T. 343. On Behalf of all Others.]— An amendment was allowed in order to make the l)ill one on behalf of all the creditors of C. P. Dundee .Mortgage Co. v. Peterson, VI. 66. Adding Plaintiffs.]- field, that plaintiff w;is not entitkd to bring the action in his own name, but that !ea\e to amend by adding certain tru-tees as plaintiffs should be allow- ed under Rule ^^S. Queen's Bench Act. 1S95 : Gandy v. Ga)idy. 30 Ch. i 12 13 AMENDMENT. 11 remedy evid- , that bring but that certain )e allow- Bench 30 Ch. I). 57: Woodward v. Shields, 3-' U. C. C. P. 2S2. and McGinn v. Frctts, \T, O. R. 699, followed. ' Ordered that upon plainiitY lilin;.,^ within a week the written consent of the trustee.'; to he added as co-plain- tiffs, the statement of claim be -iniendcd accirdinffly. and judgment entered for the amount sued fur and costs, except any costs of makin^j the amendment. Foulds v. Clnim- l>rrs. XI. 300. Misnomer. I — One defendant was misnamed. //('/(/, not a ground fur non-suit, but amendment could be made ;it trial. I'islu-r v. Broc!:. \'1I1, 137. 1\'. rLK.M)INGS. After Judcment Entered upon Demurrer — Jurisdiction of Referee --H'itle Latitude in .Imendiui:.] — To a ileclar.'ition for personal service by ihe plaintit'f as the servant of the defendant, the defendant pleaded variiiu-; p!e;is. Td oive ten vears for bringing actions to recover nny sum of money si cured by a iudgmcm. etc.. and chargeable upon or ]i;iyab!c out of ;uiy land. .\fter argument of ,'i rule nisi to set aside tlie verdict for the plaintiff, upon whicli the foregoing were the only questions ;irgued, the defendaiU ap- plied ex parte for leave to plead that the remedy on the juclgment in Man- itoba was barred by the Statute of Limitations. 21 Tac. i cap. 16, inas- mt'cli as the judgment could only be regarded in Manitoba ;is a sin pie contract debt, and by the 3 ) Vic . cap. 2. sec. S (Man.), he wa> at lib- erty to plead any defence that might have been i}lcaded to the original ac- tion. The Court refused to allow the amendment, though of opinion lint the proposed plea would have been a complete bar to the action. Bank of Montreal v. Cornish. T. W. When Allowable.] — .\metidn\ents can be allowed only where they are " necessary for the imrpose of deter- mining, in the existing suit, the real question in controversy between the parties." and for the purpose of meetincr "' any formal objection .... to the end that in all things substan- tial justice may be done." A count disclosing a cause of iiction entirelv distinct from those upon the record, under the circumstances, should not be allowed. (Per Killani, J.) Dozen V. Lee. IV. 177. 15 APPEAL. IG IT Partnership Accounts.] — At t la- trial (Icfciidaiits' coiinsul askt'd leave to amend the staleniciit uf defence, by .alleging that the plaintiff and de- fenug!as v, }fanii. XI, 546. Sec also Day v. Rl'ti.i-.ikie, XII, 290. V. On Motions. Amendment of Material.] IIclil. that Rule 41.^ of the (Jueen's Bench Act, 1895, applies to all ap- plications and motions made after the Act came into t'orce. whether in suits or actions comnv-iiced after or before that date, notwithstanding Rule 9S3, and that it is now impera- tive to give an opportunity to the ap- plicant to make good any defective material n|}on payment of the costs occasioned to tlie opposing party by bis additional attendance. Elliott v. Robn-tsou. X, 628, VI, Writ of Summons. Indorsement.] — The indorsement on a writ cannot l)e amended by striking out objectionable particu- lars, after a summons for final judg- ment has been taken out, in order to sup|iori the summons. IVyl.l v. Liviuj^stonc, IX, 109. Sec Sec Sec Sec See VII. Cross-References. Airi:.\i.. 111. .'Xkiutk.ntion, IV, .\TT.\riI Mi;\T OF l'i:i to a|)peal from judgment against them refused, al- though new trial sliculd iirojicrly have been granted, they having no defence. Haddock v. Russell. \'II1. 25. Appeal to Privy Council— Ti'/jk" for .■l/^l'liealion.\ — The t.'oiirt of Queen's Bench for M.initob.i i> em- powered l>y the Imperial Order in Council of the 26th November, 1802, to grtuit leave to appeal direct to the I'rivy Council, provided the applica- tion is made within fourteen days from the pronouncing of it^ urder, bin has no jurisdiction to etuerttiin such an ai)plication if not made within that time. Flint v. Walker, 5 .Mom. p. C. C. 179. tollowed; Rete- ineyer v. Obernniller. 2 Moo, P. C. C. 93, di>tinguished. dray w .Mani- toba c'r .Xorth-irestent Raiki^'ay Coiii/'any. XI, 261. Fault of Clerk.] — Er'idenee that .'^eeurity Cr.'en.] — Held, that under sections 32O and ,^27 of The C'ounty Courts .\ct, as amended by 50 \'ic., c 3. s, 2. a single Judge of the Queen's Bench has power, on a mo- tion before him under Rule 168 (b). Queen's Betich .Act. 1805, to strike out an appe;d Itroughl under -ection 315, to give the appellant liberty to proceed with his appeal, notwith- standing the failure to comply with any retiuirements of the statute ;ind althougli the appeal is to the I'"ull Court; and that such leave should be given in this case. ;i^ the ajijiellant's failure to file the affiilavit of inten- tion to appeal required by section 317 within ten days from the decis- ion complained of, was entirely ow- ing to the neglect of the County 19 APPEAL. 20 'Jl Cnurt clerk in udt n^lltyin^; the ap- pellant's atturncy of tlu' decision when Kivcn, and the affidavit was filed the day after the attorney was informed of the decision, and all other steps in the ap|>eal h.-id been regularly taken. The appellant, how- ever, umst |)ay the costs of the mo- tion, as the defendant had made it in good faith and in iKmirance of the special circumstances. //(•/(/, also, that it was not neces- sary on entering the appeal wiih the Prothonotary to produce to him evi- dence that till' appellant had furn- islicd the secm'itv for costs of the ap- peal ref|uircd hy section 321, al- thiiitrli it may he a rrasonalile and prudent thing to do. .Uh'll v. Craiii. XII, 81. III. Pi.'orKrcniNcs Le.mun'c. to PEAL. \V- Notice — Siifiifiriic having been made in plaintiffs, the defen( entered the cause for fore the Court /;; Iniii following notice : " T I have this day entercf re-hearing before the order tli;it the decree etc., may be wholly di Per Curidiii. — The Dundee Mnyt^a^e Co VI, 65. v.] — .A decree favor of the lants properly re-hearing be- . and gave the ike notice that 1 this cause for Full Court in herein dated. scharged, etc." notice is good v. Peterson, Notice — Sufficieney.] — A verdict having been rendered for the plain- tiff, the defendant properly filed a prpccipc requiring the cause to be set down for rehearing before the Court in bane, and gave the following no- tice to the other side; " Take notice that the defendants will apply by way of appeal to tlie Full Court from the decision of Mr. Justice Dubuc in this cause." setting out the grounds of appeal. Per Curiam. — The notice is sufficient. Application dismissed with costs. Siinj^son v. MeDonald. VI, 302. Notice — Snfficieney — Practice — Motion before Full Court.] — A no- tice of motion to the Full Court to set aside the verdict of a single Judp;c stated that the plaintitT " has this day set down his name for re-hear- ing," etc. I fold, a sufficient notice. Miller v. Morton, VIII. 1. Notice — Sufficier.cy.] — The rules re(|uired that notice of " entering " the ai)peal should be given. A no- tice that the .ipiiellant had "set down this cause " was held sufficient. Miller v. Morton. VIII, i. Notice — .liiu'idment of Prpcaled "from the judgment of Thomas Ryan, Esq., County Court Judge, delivered in a certain suit." between the plaintiff and defendants, " and in which a judgment was entered for i)lainii(Y for $20." the real name of the Judge being Joseph Ryan. Held, that, under section 327 of the Act, upon payment of $5 costs the precipe might be amended so as to specify clearly the relief asked for, and that under section .128 the appeal might be heard, notwithstand- ing the objection as to time, as the resiiondeiit could not be prejudiced thereby. Br^'Ughton v. Hamilton Provident Society. X. 683. Extending Time for Appeal.] — In support of a summons to extend the time for perfecting security for costs upon an appeal to the Supreme 20 .'1 APPEAL. Icr V. Cniirt, an alTulavi'. was tiled sliowiii^' I that nf tlu' i\V(i iKfiiidaiUs appial- | ing, one resided in C'hicagD and the uilicr near I'dot MdUnd ; tliat the trej-pass cninphiiiitd of had riiiiu'd tlie plaintitY's (.■re(ht ; and " ^n that account the delay in ohtaining the re- 1 quired security can he hirgely ac- counted for." I //('/(/, that no case liad hecn made | for an extension of time. The prin- j cipK'S applii'alile to such motions (lis- cu.->ed. Ke-ideiice of the appellant ' out of the iurisdiction and ahsnice of damage, hy the delay, to the re- fpondeiii. are nwtters for con.sidcra- '■ tion U[>on i> for an extension of time tor en- lering the ai^peal. Such an application was then made supported hy the affidavit of the pla'utiff's attorney, accnunting for rhe delay through a misapprehension and mistake made in good faith, when the Court allowed the appeal t') he set down within two day> on pavment of costs. Braun v. JJaz'is, IX. 530. Verification of Demurrer Book,] — On .an appeal from the decision of ■a single Judge allowing a demurrer, it is not necessary to verify the pro- ceedings. The demurrer book bear- ing the Judge's indorsation of the demurrer being allowed and the en- try in the clerk's book furnish ^ufl'i- cKut material. Where tlie Cniirt had struck oiu an ajilieal under ;i niisapprehensii'n. the rule dismissing it wa> rescinded a> havmg been issued through inad- vertence. Spiirlidiit v. Carlrv. \'li, 611. Documents Not Properly Before the Court. j— On an a|ipeal again-t an order made in Chambers granting a writ of civ/i'i'ran. a pr.-ecipc setting down the .appeal was filed with the I'roihoiiot.iiy. bui the proceedings in Chamhers. the atiidavits and other docuiiKuis upon which the order wa^ made were nut brought into Term, nor was the order, or ;i copy of it, verified in any way. //.•/(/. that an objection thai the papers .and proceedings were not pro- perly before the Court was fatal, and the ajipeal dismissed, with co>ts. h'c^. V. L(r-iapi)rehension ;is to the hour at which the Court sat, counsel ajipcared after his apjieal had been struck out. Held, considering the nature of the order appealed from, that the appeal wanild he re-instated were there reason to believe tliat upon full argu- ment the order would prove to be cr- 23 APPEAL. i 21 m nmc'tnis. McMoiui^li 35" V. Orton. VI, Abandonment of Ripht.] — A di- fciidant in a (.■oiuity Cnuri suit riK.'iiiist wliom a wrii of attacliiiu'iit lias liecn issiu'd docs not lose liis riRlit to appeal from tlie County Court Judge's order refusing to set it aside hy iiroceedinjr to tlie trial of tlie action in llie County Court, by applyiiiR for a new trial after a ver dici .'iK'iinsi liini. hy |)roeeedinp; with such new trial and calling: and exain- iniiiR witnesses, hy taking out and serving the order against whicli he wislies to appeal, or hy delay in tak- ing out and serving the orcler wlien no object ion tiiat the appeal ])rocei(i- ings h;ul heen hegun too late is taken by the notice of motion. Ilulchin- son V. 0)//'.v, XII. 307. IV. Decision.^ axd rmNT.s I'iEviEW- AHI.E. Jurisdiction, Questions of. ]— Fol- lowing /// re I'iiilslo:^. etc.. ..-Issiicia- lion (i.SSj), _'o Ch. D. \?,7. that an order made hy a Court of competent jurisdiction which has authority to decide ri'^ to it-^ own competency must he taken to he a ilecision hy the Court that it has jurisdiction to make tlie ordiT, and the proper way to get rid of it, if it is erroneous, is to apjieal against it, as in Proctor v. Parker. 11 M. R. 4^--,. Rite v. J-'rocsc. XI I, 528. Additional Evidence.] — This be- ing an appeal to the Full C^urt from the decision of Taylor, C. J., allow- ing an appe.il from the Referee, the respondent applied under Rule 476 of The Queen's Bencii Act. 1893. for permission to put in evidence to sliow that the description in the caveat differed materially from that in the application. //('/(/, that, upon payment of the costs of the appeals within tive days after taxation, such evidence should be received, and the matter referred hack to the Referc' with leave to ad duce it, hut that A the costs should not he so paid, the order for an issue should stand cont'irnud with costs. .■Iditiii.t V. llockin. XII, 11. Criminal Matters. | — The decis ion of a single Jiulge even in a crini iii;il matter is subject X<< re\iew by the Full Court. RcR. v. Sturkcy. VII. 480. \'. Decisio.vs .ami Points Not Re- view. \iiik. After Order Acted On^ Prelim - irfiry Objection.] - A garnishee at- t.'iching order having heen issued in this case, a subsecpient garnishee at- taching creditor moved to rescind the first order upon the ground of irregularity and of misrepresenta- tion. Main, .1., made an order amend- ing the att;iching order by re the an oppor- c-videncc. if sed before XII. 5-'«- Praecipe appcaUnc; uld be con- Ued in his >\vn for ap- pial under section .UO. s-s. J of tlie County Courts Act. as amended by 5f) Vic., c. .V s. 2, and sliould not be jillowed to urge any other grounds \vitlii>ut consent or leave of tlie Court nr a Judge. Tlir Iinl^rrial Loan & lirrr.ihiifiit Co. V. Cli-iii,nt. Re Coul- ter. .\I. 4J.S. Points Not Raised Below — W'iiiii-r-] — .\n objection of res jndi- cata cannot be urged uj>on certiorari if nut taken before the niagi-;tr;ite. The absence of a formal adiourn ment of the proceedings before a magistrate may be waived by subse- quent ai>pearance. Re Hihl'v, \'l, 47.'. Evidence Not Objected to at Trial. I — When inailmis-.d)lc evidence is received at the trial without objtc- lion. the opposite party cannot aftiT- wards object t•. McClelland. vr. 5.?.V .S(-.- also U'atsiiit v. U'hehin. !. ,^00. See also />/,i,',.,',< v. Wood, 11, jjj. Discretionary Order — Onus of I'roof — Order .l!lii:ein.i^ Ser:'iee of e.\- juris Writ — rHiui^ Order ti> I'ro- ceed.] — An order allowing service of an ex juris writ, under 40 Vic. c. .^5, s. .^2. s-s. (e) (M. 1.SS6). is a discretionary ors it apjiear-- \'ery clearly that he was in error. The onus is on a defendant n!o\ ing 10 set aside such an order to >h'i\v that the order should not have i-;- ■iUed. and where the order w.as made w both that the insurance money was payable .and the insurance contract made out i<\ M.anitoba. lini- pire Breieiuii (ind Maltint; Co. y. Harley. VII. 416, Limited Appeal — Other Points Xot Opeii.]-'.\n ,'ippeal having be.n limited to parr of an order, the re- '■poudent was not permitted to attack the other p;irt of the order in argu- ing tiie appi.al. Re .S'ciilt and Rail- way Coiinnissioner. \'l. io,l. Order for New Trial.] When a Cminty Cmirt Judge i- di-satistied with a verdict, ami orders a new trial, bis decision will not be reversed unless it can be shown tii.at he w;is clearly wrong, Watson .Maiinfac- turiuii Co. v. Stock, VI. 140. Real Property Act. | — A suigle Judge h.iving all the circuinsi.iiices before him dismissed ;i petition un- der the Real Property .\ct. //(•/(/, the Court could no' inter- fere. Seliultj v. Pranh. Vill. .vt?- \'I ■ixnixt; or Fact. Judge's Decision. I —Tile grounds uiion wliudi ihe tiiidiiig of a Judge upon a (|uestinn of f.act will be re- versed, discussed. ll'olf v. j'ait, IV. 59. Judge's Decision.] — Held, that the tinding nt a Judge on facts i> vn- titleil to as much weight as the tind- ing of a jury, with this difference, that if the verdict should be set aside, or reduced, the Court has the power to enter the verdict tli.at 11 thinks should liave been entered, without sending the case to be tried over again, /'(•;• Killi;iiii. J. — Thert- is tlu' onc' element of ditYerence that usually the Ci'urt can ascertain the principle up- on which the Judge proceeded more accurately than in the case of a jury, and the further discussion may show that principle to ho so incorrect that the Court should review the tinding. Chcvrier v. I'lirnieiitrr. \'IT, 10 1- Judge's Decision. I — Cnder The Queen's Reiudi Act, 1S05, s. 4S, ,ind Rules 6,^S, '140, tlir I'ull Court ot banc is a Court i>f Apiieal from the decisions of a single Judge on (|ues- tions of fact as well as of law, and m.ust weigh conflicting evidence, and draw its own inferences and conclus- 27 APPEAL. 28 29 ifjns. wliilst 1/cariii); in luiiid that it has iK'itlKT ^ccii iKir licard the wit- nesses, and making due allowance in this respect. The principles laid douii in this regard in The Gluniiil'tinla (iH-()) . \ P. D. at p. 2S;; Cuiihlan v. Cuni- bcrlauil. fiHoS] i C'h. 704; Smith V. Chadvick (18S4), g A. C. 1S7. and The North Ih-itish and Mercantile ins. Co. V. TouiTiHr (1805). 25 S. C R. 177. should he followed. Crciiiliton \. I'dcific CoasI l.uinbrr Co./XII, 54'.. Judge's Decision.] — The plain- tiff recovered judgment in the Coun- tj' Court for connnission on the sale of a parcel of land for defendant at the full amount of percentage usuallj allowed. Defendant aitplicd under section 309 of The County Courts Act. R. S. M., c. 3,3, for a new trial, or to re- verse or vary the iudpment, relying on the fact that another real estate agent had recf>vered a verdict against him for one-half the usual coinniis- sioii in respect of the same sale, and appealed to the Full Court from the County Court Ti"^?;^'"> order dismiss- ing that application. //<■/(/. that on such an appeal the Court cannot review the original de- cision on the facts in the same man- ner as it would do on an appeal di- rect frnni the original verdict, and can only consider whether the de- cision of the County Court Judge on the application that was made was erroneous or not. On such an application it is not the duty of the Judge to try the case anew, and he should not disturh the verdict he has rendered unless on re- consideration it appears to hiiii that tliere has not heen evidence on which a jury could have found as he did, or that his verdict has l)een ar- rived at through an oversight or mis- conception of the !;iw or the e\id- encc. Douglas v. Cross. XTI, 533. -S'l'i' also Tnnwr \. Tr,tncis. X, 340. Verdict of Jury.]— The Court will not interfere with the finding of a uiry, and reverse it, unless tlic ver- dict is perverse, or clearly and evid- ently against the weight nf evidence, or when the jury has heen misdirect- ed l)v the iudge. Madill v. Kelly, I. 280, ■ Master's Decisions.] — A rule to govern appeals from the Master up- on f|uestif)ns of fact, approved. Land- ed Banking & Loan Co. v. .[r.f.lcr- son. Ill, J70. ■Wrong Principle of Decision.] — The defendants had acted as the agents of the plaintiffs at i'ortage la Prairie for the sale of agricultural implements under a formal contract in a printed form with certain addi- tions and alteration.-^ in writing. One of the printed clauses provided that the defendants "agreed to guarantee" payment of all notes taken in settle- ment for machinery, and the claim in this action was against tlie de- fenilants as guarantors of the pay- ment of one of the promissory ncites I taken hy them under this agreement. I The chief defence set up was that j such clause of the contract should I not have heen inserted in it. heing j contrary to the actual agreement lie- i twcen the parties, and that the con- ' tract should he rectified hy striking j it out. 1 In giving the reasons for his ver- I diet in favor of the defendants. which involved rectifying the contract be- tween the parties in accordance with the defendants' contention, the Judge of the CdUiuy Court aiipe.aled from appeared to liavc merely contrasted the weight of the evidence as upon an ordinary issue, and not to havi fully appreciated the rule of law, tliai in asking the Court to reform or rectify an instrument purporting to contain the agreement of the parties, the evidence to vary the latiguage must l>c of the clearest and most sat- isfactory character, and overwhelm- ingly against the document, to ena1)le the Court to disregard its plain terms. Held, that under these circum stances the judgmient should have heen set aside, or a new trial grant- Weig c, -it ion trial 01 ment favor made tc tinder Courts •28 O') APPEAL. ;^i 10 his ver- ts. whicli tract be- ince witli Judpjo from nir;isieil ^s upmi to h;ivi law. thai f,)nn or rling to parties. iiiRuagc nost sai- erwhchii- to enable ts plain circuni uld h.ave ial grant- ed to enable the defendants to offer fnitiier evidence nf the circum- stances, but ftir the other objectinn to the plaimiff^' rccoveiy. Syh'i'stcr v. I'ortcr, XI. 09. Inferences Rather Than Facts.] — A Judge in appe;il will seldom re- verse the findinp of the trial Judge on any question of disputed facts, but hi' may differ from him in the inference to be drawn from the facts that are not really in dispute, and tliii- differing, the appellant is en- titled li> the Iienefit of his oiiinion. Biiotli V. Moffatt. XI. 25. Facts Not Appearing in Notes of Evidence.] — The Court of Queei^ '.- Bench is a Court of Appeal from the County Courts upiiii facts as well as law, ami it is impossible to infer that there was evidence to support a particular finding of the Court below, unless such appears tip"!! the material transmitted to this Court. Citiran \-, The Rural Mnn- icit^aUty of Xorth Xorjolk. \'III, 25.0, V/eight of Evidence.] — Where there is a contlict of testimony at the trial of an action in the County Court, and there is evidence for the f)laintiff which the Judge may have l)c!ieved as against the evidence for defendant, although he gave no rea- son for his decision, his verdict for the plaintiff should not be set aside t)y a Judge of this Court on appeal because he thinks that the evidence for the plaintitt was tinsatisfaciory and that the trial Judge might have decide I the case on a wrong prin- ciple of law. In such a case the Full Court, on an appeal from a single Judge, Held, that the verdict of the trial Judge should be restored. Robinson v. Taylor, X, t,;^. Weight of Evidence.] — An appli- cation by the defendant for a new trial or to reverse or vary the judg- ment of one County Court Judge in favor of the plaintiff h.iving been made to another County Court Judge Tinder section 309 of The County Courts Act. R. S. M.. c. 33. the lat- ter ruled that it should not be grain- ed unless the verdict appeared to be unreasonable or un.iu.-t. or a perusal of the evidence showed that the trial Judge must, in arriving at his decs- ion, have omitted through oversight to consider some undi.>puted (act, or that some undisputed fact or some plain principle of law applicable to the facts and favorable to the dc- feiidaiu could not have been brought to his attention, and the application was dismissed. Defendant then ap- pealed to a Judge of the Queen's lUnch against this decisitm. Helil. that the princiiiles thus laid down were correct, and that the ap- peal should be dismissed, although, in the c;ise of an api)cal. under sec- tion 315 of the Act. the verdict would have to be reviewed u[)On the facts in so far as the Court above could do so without h;iving the wii- iiesses before it. Smith v. Snixth. IX. 569. See Evidence, IX. \']1. Proceedixos Aitkin Api'eal. Supreme Court.] — It is doubtful whether it is necessary to make the judgment of the Supreme Court an order of this Court for any purpo-e when the appc.-d ^s simply dismissed. and at any r ,*• ne costs of an ap- plication to do .■'.. should not bo given when not so ordered upon the appli- cati(ai, Day v Ritfled!:,n\ X!I. 4-1. \'III. ST.^^I\li Proi-I'-Edin'os. Stay a Matter of Discretion.] — The strict legal right to ajjpeal from an firder iloes not necessarily entitle the aggrieved party to a stay of pro- ceedings. It is a matter of discre- tion, and may be refused when a stay would defeat the ends of justice. or where one of the parties would be materially prejudiced by it. while 31 ARBITRATION. 3-.' 33 tlic incnnvcniinco to tho othur prirty wruilil lio ni ,1 imu'li less ■.■haracti ;. Millet- V. Ili-iiry. Ill, 454. Appeal from Order Not a Stay. | — Wlicii an action has been transfer- rc-fl If) tile Giuri nf Queen's Bench by an order of the Jud^e of the County Court under section 86 of The Queen's Ikneh Act. iSqS. there is no longer ;iny cause, matter or proceed- ing pendinp in the County Court : and till- tiling of an affidavit '"f inten- tion lo appeal from the order under .section .^17 of The County Courts Act will not have the effect of stay- ing the ])rociedinKs in the Queen's Ber.ch. On motion to commit the defend- ant or to strike out his dcferice he- cause of liis failure 10 attend and submit to examination for discovery, defendant objected that by his affi- davit of iniention to appeal all pro- ceedings in the Queen's Bench were stayed. I [rill, fi'llnwing Ifiirris v. Jiuli^c. fiS'0_>] _' (J. H. 565. and Moody v. Sti'zcan!. ].. R. 6 Ex. .35. that there was no stay of ])roceedings. Dell v. H(Kcard. X. 6,^5. Costs. I — Proceedings to recover costs, imder tlu' order .-ippealed from. will be stay-a upon pavnient of the amount into Conn. .Ihcll y. Allan. III. 47'A [X Costs Principal Points Raised by Counsel Decided Adversely.] — An afipi'llam from the County Court suc- ct.'eded in his appeal, but the principle points raised and argued by his coun- sel were decided against liim. Ili'ld. that tnere should be no costs of the appeal, fir of tlie application to I he County Judge, after the trial, lo te\erse his judgment. O'Donohiir V. I'fiiSi-y. IV, 469. Of Appeal Refused. | . — N'o costs of appeal, ahlunigh successful, were allowed because tlic objection as to want of evidence iu'.d not been taken I at the tri;d. Kccslcr v. Hamilton Pnn'idcnt & Loan S'>cicty. X, ,^74. Of Appeal Refused. | — .\''» costs of appeal given when point upon which case was dis|)Ose(l tf was not argued. Clarke v. Scott, V, 281. X. Cross-Reff.uf.nces. Sec County Court. I. See Criminal Law, I. See lNTOxic.\TiNfi Liquors, II. APPORTIONMENT. .S",'(' Life Est.vtes. APPROPRIATION OF PAY- MENT. Principles. I — The principles of ;ippropriatioii of iiavirient discussed. McArthnr v. MeMillan. TIL ^77- Form of Account.] — An item placrd in a debtor and creditor ac- couiu for boi'k-kceping purposes only is nni til bi' treated as a part of the accouiu in considering the appropria- tion of payments to the earlier items. Gillies V. Coinniereial Haul: of Mani- toba. X. 460. See Wills, II. ARBITRATION. I. Akimtkatok-. \.vn Fuoceedint.s. H. A'A-AR!). 111. COMI'FNS \TI0N. I\'. ,\in'K\L ANn SETTINfi AsiDE. \'. .\CTKi.VS OX .\W.\RO. 32 33 ARE ^TRATION. ai II. of = I1)K. I. ARniTRATORS AND PROCEEDINGS. Disqualification of Arbitrator — Pri-i'iiius Opinion.] — I'ndcr siction ,',i of Tlic Railway .\ct.44\'ic. ( Man. ) c. 27, a persmi appointed arbitrator ( for the settlement of the value of lands taken), "shall not he disquali- fied l>y rea.-oii that he is profession- ally employed by either party, or that he had previously expressed an opin- ii'ii as to the amount of compensa- tion." An objection to an arbitrator that lie had pre\iously gi\en a valu- ation to one party and would natur- ally be bias-^ed in favor of the aninmit he had fi.xed. •/./'/. untenable in view of the slat- iitL 1 i.e section is not limited to ar- liiu-;uors appointed by a Judge. Re Xirolson and The Railzcay Cmnniis- siniicr, \'I. 410. I ;r.ployment of Arbitrator by Pav|-y.] — 71, (. I'ailway coimnission- er licing desirous of expropriating lantU of the plaintiff, arbitrators wire appointed. C. Cone of them) biing app' tinted by the other two. Con- tcmiioraneously with the progress of the arbitratidi. C. was engaged in auditing certain luunicipal books at the re(]uest of the municipal comiuis- si..ner. For this work he was paid by the nutnicipa! commissioner, who intended to reimburse himself out of tlie legislative grant to the muivci- liality. The railway coiumissioner was a Minister of the Crown. The municipal conuuissioner was a jor- p'ralion sole, ami also a .Minister of the Crown. The moneys he disburs- ed were those of the 'ininicipalities and not those of the Crown. The two arbitrators who made the award (one of them being C). swore that they were not influenced by C.'s em- ployment. Ilfld, that it did not appear that C. might have been biassed or affect- ed in any degree by his eiuployiuent ; and that an interlocutory injunction restraining the taxation of costs un- der the award should not be granted. Rowand v. Railway Commissioner. VI, 401. Prejudiced Arbitrator — Inad- C(litacy Qf .Iward as liz'idcncc of Misconduct.] — The Government ex- pro|iriated certain lands of R. for the right of way for the Red River V'alley Railway. R. having refused the amt.nint of conipensation ottered by the Government, each party ap- poiiued an arbitrator, and these two .selected C. as a third ar- bitrator. C. had l>een a short time iireviously employed by the Government to value lands of a siiu- ilar character and adjaceiu to those in question, ani(l- ers, and even defer to tlicir ykw-. Gross inadeqnacy in the amount of the award may 1)e evidence of cor- rupt or iiiii)r(Ji>er co-uluct. i\(>;^rrs V. Cuv.iuu'ycial i'liion .Issiiraiicr Co.. X. 067. IT. A\V\R!), Signature.] — An order of refer- ence re(|uirrd that llie award sliould Ue in writing. Held, that it was not necessary that tlie awar.l sliouUl he >ignetl. /-'i'('.;' V. Jlolli'v. I, 61. Irregularities — Waiver — Prc- sionption of h'ri^itlarily — .l-.eard as liridi'iicr nf Order to lixtend Tiiiic for .heard. ] — Certain ohjections were taken to the regularity of cer- tain e.\]iropriation proceedings. After tlic award the City did 'ot repiid'- ate it. l)Ut proceeded to negotiate '..s'iih tlie plaintii't up'm the hasis of tlie amount awariled. and agree.i t.i r,ive certain land for a porticn of the money; the City afterward? paid $i:j,ooo in ptirstiancc rgrec- ment, and jiaid all the costs rif the arhitration. Held, that all irregularitie-- iiad been waived. The fact" that the award had not heen sanctitined by a Judge, as reqttired hy the statute, would form no ground of objection, fiir it w.-is the duty of the City to have that done. It did not apiiear that the cormnissioners liad heen sworn. Held, that this would he assumed to have been done. The aw.ard was not iiiadc within the tmie sju'eitied in the original order, hut it recited a further I'fder extending the time, Held, that the original of this fur- ther ortler being in possession of the defendants, the award was suflicient second.iry evidence of it. U'rit^ht v. Wmnife'^. III. 349. Til. COMI'F.XS.VTIOX. Lands Injuriously Affected — Prcspective Value.] — The compensa- tion allowed to owners for lands ex- propriated l)y railways, under the Manitoba Sta'tutes. must lie limited to compensation for injury to land, or to an estate or interest in land. X. owned lands on the bank of the l^ed River, on which he carried on an ice business. The ice was hauled from the river by teams and stored in buildings on the land. .\ railway exi)ropriated a portion of the lands immediately adjoining the river, so that the railway passed between the remaining portion and the river. The arliitrators awarded compensation, in addition to the value of the land and damage to buildings, for a contriv- ance called an endless chain, which X. intended to use for hauling ice from the river to the storage build- ings, but would be prevented from usin.g by reason (T the railway pass- ing between the buildings and thi river. This contrivance was not in use when the land was taken. On appeal from the award ; — field, that the arbitrators should have considered the land as it stooi! when taken by the railway, and not have allowed any additional com- pensation, because the owners might, at some fu'ure time, desire to n^i appliances vhich the railway would interfere w.ih. /v<' \ie',iol<:on and The Rail\eay Comiuissiouer. VII 400. See also Prnuc Schools. I\'. .\ppF..\i. .\\n Settixg .'Xside;. Erroneous View of Law.] — An arbitrator enclosed in an envelope hi.^ award and a nieino. containing an exhaustive review of the cases bear- ing on the question decided by him. and showing that he had taken ,i'i erroneous view of the law. The en- velope was marked " Doig z'. HolKy .Award, .Arbitrator's Fee, $100." On the memo, was indorsed : " This memo,, after perusal by the pariy taking up the award, is to be givi ;i to the opposite solicitor, who. aftt r perusal, is to return it to nie. VV. L." 31) 37 ARBITRATION. 38 ir lands cx- under the le limited to to land, or 1 land. l)ank of the ■ carried on was haul-ed and stored A railway Dt the lands he river, sn between the le river. The ipensation, in the land and ir a contriv- chain, which ■ hauling ice torage huild- jvenied from railway pass- ngs and the ; was not in taken, iward : — raters should id as it sion,! Iway, and m". ditional coni- iwners might, dc'^ire ti) use •ailway would 'iciiolson a'h! ssiiinrr, VII Schools. -TINT, Aside. Law.] — .An n envelope hi? C'lntaining an he cases bea'- 'cided hy him. lad taken ;ri ,aw. The c;- Inlg z\ llollrv 'C $100." On sou: "This hy the party is to he givi ;i or, who. afi> i; to inc. \V. L.' //c7i:-t the same: .... ;ind no resort shall l)e had to any legal or equitable pmceedings to resist or alter the same," On an a])plication by nde nisi in set aside the award fur niis- (iinduct of the arbitralurs, and on rther grounils — Held, 'n- the Full Curt, that al- lh'>ugli. i.nder the provisions of the ;i:.,'rcemem. the parties were prevt'nt- ed from having the submission made a rule of Court under C. L. P. .\ct, if^34. s. I", yet a< a hill could have i'eeii tiled in equity to impeach the ,'iw,".rd, the rule might he ;imcnded hy adding, after the style of Court, the word'; " in equity," after which relief could he gr:inted. Re Fislur and Brozcii. I. ii6. Evidence of Arbitrators.]— Evi- ileiice of an arbitrator as to whether. m estimating the coniipensation. he bad taken into consideration matters wiiicb were not within his jurisdic- t on. i> a(hnissihle. Re Scott and Tlic luiilzcay Com»iissi(i)ii'r. Vl. 1Q3. Proceedings Upon.] — L'pon the argument of a rulr to set aside an .iw.ird, it was ohjccted that the mo- lion paper on which the rule was ob- tained, making the order of reference a rule of Court, was not signed by counsel. Held, that the objection, if a good ■ HU, should be raised by some pro- ceeding to sii aside or discharge the rule. Doifi v. Hollcy. T. 61. Threats — Agrccmcr.t Sigurd un- der riireat of Criminal I'roeeedings — .heard — .hujuiesecncc — Waiver.] — The plaintiff having bought two norses from the defendant and given a chattel mortgage upon them which u;is to be paid by delivering hay. a dispute arose as to whetlur the hor.^t'S had l)een paid for or not. De- fendant tlien seized the horses, claim- ing a right to do so under ihe chat- tel nifirtgage, when pLaintiff prose- cuted him for stealing. The defend- ant then thre.atened to prosecute the plaintiff for perjury in swearing to the informmtion. The parties then agreed to refer their disputes to ar- bitration, the plaintitT having been inducetl by the threats to do so. The proceedings of the arbitrators were admittedly irregular, but an award was made giving the horses to de- fendant, who was to pay the feed bill due against them, and $13 for pre- vious expenses. The defendant then ti;iid the feed bill and the $15 and took away the horses. .More tli;in four months afterwards the plaintiff reple\ied the horses in the County Court, when tlie Judge found that the horses had been paid for hy the delivery of hay, and that the arbitration proceedings were ir- regular, but was of opinion th;it plaintiff had hy his conduct and ac- quic-^cence waived ail objections to the award. On appeal to ;i Judge of the Queen's Bench — Held, th.-it the agreement of ,'irbi- tration was whoilv void: irilliains v. liayley. 4 Ciff. (.^S. L, R. 1 H. L. 200, and U'indhill Local Board v. I'int. 45 Ch. 1). 35r. followed. Floii;- er V. Sadler. 10 [} P.. I). ^j2. dis:in- giuslied. Ifeld. also, thai the plaintiff was not estopped from objecting to the agreement and award by the fact that he had allowed the defendant to take the horses and pay the money ac- cording to the award, or hy allowing the defendant to \.ep the "horses for so long. Ilayzeard v. I'liitUps. 6 .\. & E. iiq; Bartlc v. Musgraxe. i Dowl, \. S. 325, followed, Lafcr- riere v. Cadieux. XI, i;5. 39 ASSIGNMENTS. 40 41 V. ACTUINS ON AWARIl. Pleading.] — It was not necessary {(IT the plaimiff to allege in his de- claration that a hy-law had hi-'cn passL-d by tlie defendants authoris- ing- the notice of arbitratinn in ques- tion. Ilarpcl V. Portland, \~ U.C.R. 445. followed. The count of the declaration ^ct- ti.ig up a inonty demand by virtue of the award was held bad, because the award had not been confirmed by the County Court Judge. Scott v. The City of Winnipeg. XI, 84. ASSAULT. Sec Ckimin.m. L.\w, IX (a). ASSESSMENT ROLLS. Sec T.w.ATioN', I, III. ASSIGNMENTS. By Parol.] — Held, by ihr Full Court, aftirming the decision of Tay- lor J., that an equitable assignment of a chose in action may Iv made by any words or acts sh' w.ng a clear intention to assign; a deed or writ- ing is not necessar\. McMastcr v. Canada Paper d'.. 1, 309. Sc'c also West v. Lynch. V. 167 Order to Pay — I'alidity of Assii^u- nicnt — Statute of f'rauds.] — McK. & McQ. being indebted to defendant, gave him an order directed to the mayor and council of the City of \V.. requesting them to retain $600 from money com:ng to tlicm, and pay same to defendant. Shortly after McK. gave plaintiff an order on defend- ant in the following terms: "Will you kindly agree to pay Edward Lynch the amount of money due us on order for tanks to corporation after you receive same from the chamberlain, to be paid by him to men for work on same." Defendai;t indorsed the order as follows; "I will agree to pay the balance of money upon the order you gave nie on tile City chamberlain, first deduci- ing the amount you owe me, and the balance I will pay over to the said Edward Lynch." Held, that the acceptance by de- fendant was valid, and bound the ac- ceptor to pay; and that the Statute of I-'rauds was not a defence. Lynch V, Clougher, I, 293. See Ontario Hank v. .Uc.lrthur. V, 381. Conveyance of Land to be Ac- quired.] — A half-breed child con- veyed all his " right, title, interest, claim, property, and demand both at law and in c(|uity of which he is now in possession, or of which he may hereafter become possessed, of, in and to the said land to which he i-, or may become, entitled as heir-at- law of such half-breed in the said Province of Manitoba, wheresoever the same has been, or may hereafter be, allotted." Held, a good equitable assignment. Sutherland v. Schultc, I. 13. Agreement to Assign Moneys to be Earned.] — A firm of contrac- tors agreed with S. that if he wouM indorse their notes to the Molsoiii Bank to the amount of $10,000, they would give ar, assignment to tiie Bank of all moneys to be payable to them from a Raihvay Company from contracts made and to be made by them with the Railway Company to secure the notes. They also agree! with the Bank that in consideration of an advance to them of the mon; y upon their notes indorsed by S., thiv would assign to the Bank the sa-i moneys, and gave to N., the Bank manager, a power of attorney autii- orizing him tr) collect from the Ra!- way Company the said moneys. ■■. indorsed the notes and the mone = were advanced. Deposi fcrahlc '•- nunt of tr.insfera the face Rank to for a sui fornx'r n Held. <-A the i "'gotial)! l"-itor '."•I'nst t ; -itod. •JO 41 ASSIGNMENTS FOR CREDITORS. 4-2 y line us rporation ■roin the ,' liim to )efendai:t Dws : " I lance I'f gave nite ;t deduct- ;, and tlie tlie said ■e by do- 1(1 the ac- le Statute ;e. Lynch Arthur. be Ac- L-hild coii- ', interest. id both at he is now h he may :d. of, in iiich lie i>, xs hcir-at- 1 the said icresO'eviT • hereafti r ssignment. Moneys ciiiitrai'- lie wouM Molsoii^ .GOO, they to the payable !> pany Ixon made by mpany t" SO agreed sideration the nion^ v y S., thrv the "^a;.! the Bank rncv auth- thc Ra !- oneys. ~^- le monc.5 It Held, that this transactiDn amount- ed to an equitable assignment to the Bank of the moncvs in question. Rodick y. GiindcU, I D. M. & G. 764, distinguislied. Held. als\, 40. Ch. D. 5, followed. Brown V. Johnston, 12 A. R. 190, distinguished. Molsons Bank v. Car- scadcn, VUl, 451 Assignment of Future Income and Profits — Moneys Held in Trust] — The plaintiffs, by a garn- ishee order, attached moneys in tlie hands of the garnishees owing to the defendants. The defendants had previously assigned to trustees for bondholders all the profits and in- come of the concern, and the trustees therefore claimed the moneys as against the plaintififs. The deed of assignnijcnt provided that the defend- ants might use the income assigned in carrying on their business until default in payment of the bonds, and the plaintiffs' claim was for goods required by the defendants in the or- dinary course of tiieir business. Held, that the defendants, if the moneys attached had come to their hands, might properly have applied them in payment of the plaintiffs' claim and that the claimants were nnt entitled to them as against the plaintiffs, National Electric Manu- facturing Co. V. Manitol'a Electric and Gas Eif^ht Co., l\. 212. Deposit Receipt _ "Not Trans- fmihlr ''—Chose in Action — Assign- vient of I Jcbt.]— The words " Not transferable " were printed across the face of a receipt given by the Bank to the assignor of the claimant for a sum of money deposited by the firiner with the Bank at interest. Held, that, a' though this prevent- ed! the instrument being considered 'I'gMtiable. it did not pi event the de- p"-:tor from ;issigning ihe claim ■•■eainst the Bank for the money de- r^^ited. Qucere. — Whether it is possible for any persons tu so contract as to pre- vent a debt arising out of their trans- actions frf Xotirc to Soiiu- Crrdittirs.] — W. l)ecriine indebted to defemlant iri |SS() for money> advanced; in Jan- uary. [SS7, defendaiU pressed \V. for sirurily, wlien lie t;;i\e o leave the any con- my desire ss. at all ipcar tint with tlie ickly pav- laiiinionJ, II. C.\. Sa. Preceded by Ca. Re.] — Uiuler r. .S. M.. c. .V. -■ 77' a <■"• •«"• '■'I" i?siR' only ag:iinst a defendant has been held to bail under a i."a. >c. Gait V. Gore, II, 147. in, l)i:TiTou's Act. Committal for Non-Payment of Costs— .Ui'(i;(.y to Pay] — I'pon an applii-ation to commit two persons tor non-iiayment of a juilRment for co'its. it appeared that they were two nf the mendu'rs if a firm enRaRed in carryiiic; ont several contracts. One contrrict was completed and on', of it a profit li.-id l)een made which had i III it been divided, bnt had been used I ill the work under the odicr con- ! iracts. l! w;is uncertain wlicilier j pr ifi' or loss woii'd accrue from tb.e \ Other contracts. //>'/(/, that the facis did no! Cs'ab- lidi that tile deb'ors had h:id mean- 1 to nay the iud'^nient debt. Saul v. 1 Kjtriiidii. \'[. t8'). Committal for Non-Payment of ' Costs- Stahi'i's in }'>n-,\- — Prfitiilt. ![■:■.■ /'rcn'i/. — R.. an apiMit of S., obtained out of Court a sum birder ibrin that to which S. was entitled. .\n order was made for the re-iiay- irent of the excess with cost-. Upon ail application to ciimmit R. for de- f.'iit't ill pavment — //,•/(/. I. That The Debtor's Act. 32 &• .',,^ ^''c. (Imii. ). c. 62. was in force in Manitoba. _'. That it sufficientlv appearing that R. had means to pay. j an order should be made for his com- mittal. ,^. That the order might be made for non-payment of costs. 4. That the default in payment might be proved as well hv R.'s admission as by artidavii of the parly to whom raynicnt sbon'd have been made. A'c Prciiuirr, \'I. jt,. Material for Application — .}/!- trjI—Onlrr OtJ'.rr than that .tsl-rd F'^r.] — Depositions of a debtoi taken upon an examination, as to hi< mean* to Satisfy a judgment, may be u-ecl against him on .an ap|)lication to committ under The Debtor's .\cl. So. also, mav his cross-ex.imination up- on an atTidavit filed by him in answer to such an application. The decis- ion of a single Jmlge upon such an application will not be readily re- versed upon appeal .\n order to pay by instalments may be made up- on a summons to commit. Mc.\lo>i- ii.c/i' V. Ortnii, VI, 330. TV. DlSCII.ARGE. Evidence on Motion.) — On an ap- plication for the di.-ch.irge of the de- fendant, who li;id been arrested un- der .1 writ of (■(/. sa., fi'aiiititY pro- posed to read in opj)osiiion to the motion, (i) The cross-ix.amination if the defeiid.aiit ui)o!i his affifl-ivit li'ed in suiijiori of thi; aiinlication : ( J I Ins examination ;is ;i judgnient debtor: and ( ,! ) ceri.ain .alTidavits. //.7(/. by t!ie Full Court, (a) re- \'ersing the order of \\'alll)ridge. C. T.. iliat the evidetice tendered should ha\e been received. Qtt.rrc. — Wotdd depositions of lie defendan' tal liis discharge. brown \. /loi'i'ir, III, Sy. Jurisdiction of Chamber Judge. J —A Tiidgc in Chambers lias jurisdic- tion to ordcT ilic (JiscliarKc oi a de- fendant arrested under a ca. re, either upon llu' merits or upon tech- nical 1,'rounds. Green v. llanimoml, HI, 97. Conditions _ C(»j/.9.]— Tiie Court has nn Jurisdiction to imp ise tlic payment of costs as a conditi.in of disciiarge from custody. Munkinan V. Siunolt, III. 170. V. Priorities. Priorities— Lxccittiou Crcdilors— Irrcgtihiritics as nrtxcccn Competing, Creditors.] — Tliree creditors issued writs of sununons. prior to tlie issue of a writ of attaclinienl against tlie same defendants !)y anoilier creditor. A liftli issued a writ of summons after the attaclinieiu. Tlie three ob- tained executions first. In settling the priorities — Held, I. Alerc irregularities. which might be taken advantage of by the defendant, are not open to third part- ies. 2. A judgment may be attacked by a third party on the ground that it is signed as against the firm, and that the debt was the private debt of a member of the firm only. 3. The fifth creditor was entitled to share with the attaching creditor, it not being necessary for subsequent cred- itors to issue attachments. I'ischcl V. Tou'>isend, I. 90. VI. Setting Asihe. Cause of Action Doubtful— /?a)7.] — 1. .V eapias will not lie set aside on the ground that the plaintiff has no cause of action, unless that fact clear- ly appears. 2. Where the debi is sworn at $135, bail ordered at $Joo is not excessive, lloyd y. Iriein. Ill, 90. Cause of Action Doubtful.] — The affidavit upon which a capitis is- sued disclosed a good cause of ac- tion, but examinaiion upon it ren- dered success very doubtful. Upon a motion to set aside the writ — //i7f/, that the Court should not in- terfere unless it was very clear that the plaintiff must fail. Anderson v. Johnson. \T, 113. Joinder of Debts.] — The statute provides that no writ of capias shall be issued for a cause of action less th;in $100. The debt owing by de- fendant to plaintiff was under $100, and the plaintiff procured an assign- ment to himself of a debt owing by defendant to another creditor, the two together amounting to more than $100. On the joint indebtedness he i/b'.ained a writ of capias. 1 1 eld. unobjectionable. Bryan v. Freeman, VII, :J. Sufficiency of Material.] — A Judge has no power to set aside a writ upon the ground that the Judge should not have been satislied with the material upon which it was granted. An application in Cham- bers for a discharge is no bar to a subsequent application to the Court to set aside the order. Green v, Hammond, III, 97. Concealment of Facts,] — An at- tacliiiicni was obtained by an attorney who appeared foi the plaintiffs, but who was in reality the defendants' attcirney, upon the ground that the defendants liatl assigned their pro- perty with intent to defraud their creditors. The fact that the assign- ment was to the idaintiffs themselves ha\iiig been concealed, the attach- ment was set aside with costs to be paid by the attorney. IVIiitla v. Spoiee. V. 392. Style of Cause.] _ The affidavit gave the defendant's name as " J. Berkwin Johnson." His proper name was " Berkwin Johnson," but he had been sued and had pleaded Irregi I. l)evia from til vitiate tl .siibstanci lead. 2. the caui capias. J " !" wit '.vrit she i-~ issued ttriiis. was pen whole n( -! ruction ^ 4iS A'J ATTORNEY AND CLIENT. £0 a^ " J. B. Johnson." ;in(i adtnitlcd :hat hf frequently ui-cd llic "J." as a d;stinKiiishinR k'ttcr. In tin: order ;ind writ tiic name was " J. H. Jolin- ■-on." Iltid, that the order and writ were defective, but iniRht be amended up- (II piyment of costs. Anderson v. Jdlnison, \'I, 113. Style of Chnae—Suifiiii'iicy of ///- li'f;atiinis — Part of Cause of Action Assii^ned to Plaintiff by Another Creditor.] — The defendant was ar- re.'^led under a writ of capias. In the writ and in the affidavits to hold lo bail, the defendant was called !,);iniel F. Freeman. His true name was 1 )aniel Foster Freeman. //.'/(/. sufticient. The Court will not interfere on the j^round of the cause of actinii being iiisulticiently stated, uidess it is very clear that the plaintiff h.'is 110 cause of action. Bryan v. Freeman, VII. 57- Irregularities _ .hnendmcnt.]-- !. Deviations in a writ of capias, triiii the form jirescribed. do not lu.ite the writ, unless they affect the si.bstance or are calculated to mis- k-.id. J. It is not necessary to state the cause of action in a writ of capias. 3. The omis>ion of the words " to wit " is unimportant. 4. The writ should show aR.'iinst whom it i- issued, and that distinctly and in itrms. An amendment, however, was permitted, the writ taken as a whole not being capable of miscon- -iruction. Green v. Hammond, 111, "7- Term of BringiTi;X K'o Action for Damages — Costs. '.Zefusal of.\—\n suing out a writ of attachment against defendant, plaintiff had omit- ted to stale in his affidavit whether the defendant was a corpor.ation or not. The defendant being therefore entitled, c.v debit o justiticr. to have the writ set aside. Held. (Dubuc. J., dissenting), that the Court could not impose the term ' f bringing no action against the plaintitif as a condition of setting the writ aside, but that costs should be refused unless defendant would con- sent to such term being imposed. Aslido:en v. Pcderich. .' .M. R jij, followed. Per Didiuc. J. — Tlie Court has jur- isdiction to impose the term of bring- ing no action in .n proper case, and in ''-is case such term siiould be im- P' .d. Wilson V. Smith. IX, 318. ATTORNEY AND CLIENT. I, I'i. and the sheriff re- quiring security before seizure, the attorney's partner wrote to the slier- Ok ^'^ f IMAGE EVALUATION TEST TARGET (MT-3) 1.0 I.I '-IS "■ m ,il3 6 M IM 1.8 1.25 1.4 1.6 -^ 6" — ► "A ff /} s> ^y, /# /^ Photographic Sciences Corporation i\ «v ^^ « <,1>^ \\ 4^ 6^ <^ > «{)'■ 23 WEST MAIN STREET WEBSTER, NY 14580 ( 716) 872-4503 x^ I ./> % ^ Q- i/i i^: 51 ATTORNEY AND CLIENT. 52 iff agreeing to indemnify him. The sheriff scizid. was sued, and judg- ment went against hinv Upon a sumniary ,ipi)lication to enforce tiie undertaking — Held, I. That the undertaking was that of tile writer iiersonally. 2. That it was fjiven in a profes.ional capacity and might t)e summarily en- forc-ed. 3. But that tiie sheriff, liav- ing acted improperly in the seizure and so incurred a greater liability than that againj^t which he \/as in- dcmriitied, he should he left to his action, h'r Mcl'liillips. an .Ittoritcy. VI. 108. Delivering Up of Documents — r.infiloyiiicnt oj iiioniry tt> Pur- chase Land Scr ] - S. em»)l"ye(l T.. an ;itnirney. v purchase half- breed land scrip, and for that pur po>e gave him $.30 the scrip. a;id drew . as'-iyniiient there- an purchased 'I cxe^-nted :>. When . :il>!c. T. re- I'le ii.'iinie of the scrip hicanu' di^l fu«ed to disclose 10 the lialf-breed fri m whom \\r hivd bought the scrip. aiisue an attach- ment against an attorney for dis- obeying a rule rtf Court by which he is ordered to pay to liis client the money of the client. Re A. B., an Attorney, III, 316. Striking Off the Rolls — Non- Payment of Money.) — .\n attorney will not lie struck off the rolls for non-payment of money merely. Whether the Court has jurisdiction to remove attorneys apart from the Provincial Statute, qinrrc. .\ client left with an attorney a ;r. irigagc fir collection, and also a di-cli.'irge to he delivered over upon payment. The attorney received the money and paid to the client a por- tiin of ii. telling him from time to lime that that sum was all that he had received. Discovery of the truth was not made until after the attor- ney had left the country the follow- ing ye.ir. //('/(/. that this was misconduct "in the discharge of his duties as an at- torney." The attorney had also re- ceived payment on behalf of mort- gagees, for whom he was not entitled to act; the mortgagor believing that he was so entitled. The attorney paid over a portion of the money only. Held, that he should be struck off the attorneys" roll, but not off the barristers', as he had done nothing discreditable in the discharge of that office. Re J. B., an .Itloruey. \'\. K). Striking Off the Rolls— DWoy — Civil Action Pendinp.] — .\ delay of six months is not a bar to a motion to strike off' the rolls where an un- sticci ssfnl motion for an ordtr to cniiiix'l the attorney to answer had meanwhile been made. The pend- ency of civil proceedings upon a cause of action arising out of the same matters is not an answer to a motion to strike off. Nor is the fpct that the matter complained of in- 58 ATTORNEY AND CLIENT. 51 volves a criminal charge (Re R. A., an Attorney, h -M. R. ,V>8. comment- ed nn.) The charges being denied, ,1 reference U> enquire and report was nrdered. Re R. ./., an AttorMy, VI, 601. II. Duty and LiAniLiTV. Duty on Purchase of Mortgage — Ackno-idcd^cment by Mortfiugur —Production of Title Deeds.] — S. claimed to be mortgagee of certain lancN. and agreed to sell the mortgage to the plamlitTs. The piainiiffs em- ployed the defendant to exatnine the title of S.. and prepare the necessary assignment. Defemlant passed the title, and took an assignment of the mortgage, and upon his rei)ort the plaintifts made the purdiase, Ii afterwarfis transiiired that the mort- gaye was a forgery. In ,in actiim for negligence, it appeared that the defendant had not. before passing the title, obtained an acknowledgement from the mortgagi.r nf the .tminint due upon the mortgage: ami had not required the production of the title deeds of the proi)erty. The mort- gage was d.ited but a short time be- fore the assignment and was not due. Held. I. That the acceptance of the title without the mortgagor's certi- ficate did not constitute such negli- gence as to render the defend.int li- able, J. That notwithst.mding the Registry .\ct. it is as mucii as ever the duty of a solicitor to enquire for the title dteds; and to iu'^ist upon their pniduction, unless their absence is sati-factorily accounted for; and that upon this ground the defendant was liable for the amounts paid bv the plaintiffs and interest. Freehold Loan Co. v. McArthur, V, 207. Instructions to Sheriff.] — An at- torney has no imjilied authority to give instructions to a sherifT to seize any particular goods. Taking [)art in iiiterpkader proceedings is not a ratification by the execution creditor of the seizure. IVallbridge v. Hall, IV. 341. Authority to Sue.] Sec Stay of Proceedings, IV. III. Fees and Other Remunera- tion. Parliamentary Agency — Pro- ceedings lief ore the Legislature.] — Where a solicitor has obtained from the Speaker of the LegislatLe As- scnd)ly authority to act in any matter as a parliamentary agent, he can re- cover the amount due him for ser- vices, without being obliged to ob- serve .'ill the nquirements of The English .Act. Kennedy v. Au.itin, I, ^62. Agreement that Attorney not to Account for Moneys Received — Business Done before a .^fagistrate.] — .An attorney was employed i" con- duct the entire flcfencc of a itri^oner. Me appeared upon the preliminary investigation be'ore a police magis- trate, lie received money from the prisiincr. Ujion ;in apphC-itioii for the ileli\er\- of hi^ bill, he swore that it had been agreed that he was to use the moiuy in proeiiring the prisoner's release, but was to keep no account of tlu' money paid out. This the client denied. field, I. That the attorney should deliver an ordinary bill of costs. 2. That such an agreement must be in writing. A'.- ./., on .Ittorney, VI, 181. IV. I.IF.N-. Set-oflf of Costs.]— The plaintiffs, creditor^ i.f ihe defendant E. D.. having brought suit in equity to set .tside a iuilgment recovered against him by his wifi', the co-defendant, as fraudulent and void, the bill was dis- ti'issed with costs. In settling the minutes of the decree, the plaintiffs asked to have their iuigment ob- tained after the filing of the bill set- I 'I i 'I I! ilv m 55 BAILMENT. 56 off f>ro tarto against the costs, pay- able by them to E. D., who had de- fended separately from his wife. This was opiioscd by his solicitor on the ground that his costs were unpaid. Held, following Webb v. Mc Arth- ur, 4 Ch. Ch. 63. and CoUett v. Pres- ton, 15 Beav. 458, that the solicitor's lien could not be interfered with in such a case, and the application was refused. Scmble, however, that when costs in a particular suit arc payable to and by different parties to it, there may be a set-off and no question of the solicitor's lien will be entertain- ed to prevent it. Thompson v. Dict- ion, X, 301. Salaried Attorney.] — Sec Harvey V. C. P. R., III.' 42; McLennan v. U'inr.ipeg. Ill, 82. Sec Charging Order. ATTORNEY-GENERAL. Choice of Forum.]— The Crown may. when proceeding in relation to property to which the Sovereign is entitled in right of the Cr->wn. choose its own form; but otherwise, where the Crown claims no beneficial inter- est. Attorney-General v. Macdonald, VI. 372. Costs.] — The Aftornvy-Gencral will not be ordered to pay costs; the Imperial Statute. 18 & 10 Vic. c. 90, not being in force in this Province. Attorney-General v. Richard, IV, 336. See Criminal Law, I (a). See Injunction, II (b). AUDITA QUERELA. See D/ MAGES. BAIL. Condition to Appear for Sen- tence — Conviction Quashed and New Trial Ordered — Estreating Re- cognicatvc] — The accused was con- victed by a jury of a criminal of- fence, but the Judge reserved a case as to the admissibility of certain evi- dence and admitted the prisoner to bail. The condition of the recogni- zance entered into was that the pris- oner would appear at the next sitting of the Court to receive sentence. Afterwards the Full Court quash- ed the conviction and ordered a new trial. The accu.sed not having ap- peared at the next sitting, proceed- ings were taken to estreat the recog- nizance and for the collection of the named penalties. Held, that the condition of the re- cognizance was not broken, and that 'he purpose of the accused's attend- ance having failed, the sureties were not bound for his appearance. Roll of estreated recognizance and /I. fa. issued thereon set aside. Reg. v. Hamilton, XII, 507. See Attachment of Person, VI. BAILIFF. See Sheriff. BAILMENT. Liability for Loss.]— The hirer of a chattel must restore it in as good plight as it was when received, ex- cept for that deterioration which en- sues in the course of using, from or- dinary wear and tear, and for any injury or loss which may have oc- curred without culpable negligence or misconduct on the hirer's part. He must answer, also, not only for loss and injury inflicted upon the thing by himself in person, but also for the injurious acts of those whom BANKS AND BANKING. 58 he voluntarily admits. 5o to speak, in- to the use of the thing. The defend- ants hired from the plaintiff a team of horses. One of the defendants having control of the horses, siiot one of them, alleging that it was diseased. The defendant acted on his own opinion merely, and the cvi- denie showed that he was wrong. Held, that the defendants were jointly liable for the value of the horse. Morris v. .-Irmit. IV, 152. See also Sale of Goods, II. BANKRUPTCY. Discharge Under Foreign Law.] — Proceedings in bankruptcy and even u discharge under the insol- vency laws of another country are not r 'ssarily a bar to an action against the insolvent, and if they are a bar they should be pleaded. They cannot be set up on an application to stay proceedings in 'he action. Bnu:,d v. Green. XII, ,137. See Corporations. IX. BANKS AND BANKING. I. Deposits and Cheques. II. Powers. III. Representation by Branches. IV. Winding-up. I. Deposits and Cheques. Refusal of Cheque — Rcasoiiahle Time — Pantages.] — The plaintiffs Todd & Armstrong carried on busi- ness in partnership, and had an ac- count with the defendants. On a Friday th« Bank was served with an order attaching all moneys due by the Bank to the plaintiff Todd and one Poulin. On Saturday two of the plaintiff's che(|ues aggregating $401 were presented and refused, the Bank not having by that time deter- mined what position it shoubl as- sume. In an action for damages for such refusal the trial Judge told the jury that if they were of opinion that the Bank had exceeded a reasonable time for making all necessary inquir- ies for their protection, that the dam- age should be sub'^tantial but temper- ate. The jury found a verdict for the plaintiff for $1,000. Held, I. That there was no misdi- rection. 2. That the Rank had acted with proper, r-easonable despatch ; that this was a question for the jury; but that, as the jury had misconceiv- ed the rights nf the parties, there should be a new trial. ."?. That the damages were unreasonable and un- just. Todd V. The Union Bank of Canada. IV. 204. Alteration of Cheque After Ac- ceptance— /.ai/i/Vi'/v of Bai:.k on .11- tered Cluuiite.] — Where a Bank ac- cepts or certifies a cheque at the re- quest of the drawer, and the cheque is afterwards altered by the drawer so as to be made payable to bearer instead of to order, the Bank is not liable to the drawer or his assignees on the altered cheque: such an alter- ation being a material one. althoucrh not one oi the kind specified in section ,3 of The Bills of E.xchar • Act, (1890). An unaccepted cheque is not in any sense an assignment of money in the hands of a banker. There is no debt between a banker and his customer till a demand has been made for payment. There seems to be a distinction between the liability of a Bank which has certified or accepted a cheque at the request of the drawer and the li- ability where the acceptance is given at the request of the holder; and it is doubtful whether the holder of such a cheque in the former case is in any different position frotn the holder of an unaccepted cheque. The question of the materiality of the alteration in a bill is a question n , 1 »K*- sfT I*; fiO BANKS AND BANKING. 00 of law, and nutsl be considtrol with reference to the i-oiitract itself, and not at all with referciK-e tn the sur- rounding circumstances. A'l' Com- mercial Liattk of Manitobii; Lc Lianquc d'llochclafiii's Case, X. 171. And si'i' f\'i' Commercial Hank of Manitoba. I\'c Claims. X, 187. Sec also ASSIG.NMENTS. II. Powers, Advances Upon Choses in Ac- tion.] — It is within th* powers of incorporated Banks to make ad- vances upon tlie security of any choses in actinn. excipt in so far as Tlie KankiuK .\ct e.xpres-iy vxcludes such transactions. Tlir Molsoits Bank v. Carscadcn. \'!II. 451. Advances Upon Chattel Mort- gages.) — Sucli advances are prohil)- ited hy The Banking .\ct. Bathgate V. Merchants' Bank, V, 210. Advances with Real Estate as Collateral Security. | — .\ trader was indebted to a Bank: th-c delit was assumed by a third person. »vho gave to the Bank a mortgage upon real estate to secure ii. Held, that the mortgage was not security for an advance of money, but was a mortgage " by way of ad- ditional security for debts contracted to the Bank," and was therefore valid under The Bank Act. (iillics V Commercial Bank of Manitoba, X, 4C0. Advances Upon Assignments of Goods under Schedule C for Pre- existing Beht— Substitution of Oth- er Goods for those Described — Pur- chaser for Va'.ue zx.'itliout Notice.] — One A., a wholesale purchaser and shipper of dead stock and the pro- ducts thereof, obtained several ad- vances of UToney from the defendants on the security of assignments of certain hog products in th« form in Schedule C. to The Bank Act ; and agreed with the manager of the Bank to ticket the goods so as to identify them, and not to sell the goods. Me then si't apart certain of the goods as belonging to the defendants, and placed tickets over them to indicate this, but afterwards he sold all these goods in the ordinary course of busi- ness and substituted other goods of a like character in their place, plac- ing tlu' same tickets u|)on tliem. .Subsequently, the plaintiffs, as secur- ity for a then pre-existing debt due them from A., obtained an assign- ment of the s,-,'"e kind as the defend- ants had taken, covering inter alia 10.000 lbs. of bacon, but no appro- priation of any particular bacon as liyi)oihecated to the plaintiffs was made until about seven wciks later, when, at the instance of an officer of the plaintiffs, A. set apart 10.000 lbs. of bacon out of the pile which had been appropriated to tlic defend- ants in the maimer above dc-cribed, and this i|uantity was cketed with the name of the plai .f Bank, the defendants' tickets being remov-ed. Shortly afterwards A. absconded, and the ilefendants took possession of this lo.ocx) lbs. of bacon under their securities. Held, that they were entitled to hold it against the plaintiffs. Held, also, that, notwithstanding the language of section 75 of The Bank .Act, a Bank may take securi- ties of the kind provided for by sec- tion 74, even for pre-existing debts, as the general provisions of section f>X should not be held to be restricted by the language of section 75 so as to prevent it. La Banque d'Horlielaga V. The Merchants' Bank of Canada, X, 361. III. Representation by Branches. Bank and Its Branches.]— -Plain- tiff applied for payment over, by the Bank, of money deposited with it at the branch office at Winnipeg. Pre- vious to the garnishee order being made, the money had been paid over by the head office at Toronto under 1 (I I (11 BILLS AND NOTES. «2 si'Ciiu St ration issued against T. in Ontario. Held. followiiiR Iru'iii V. lijiih of Moiitriiil. .?S r. C. (J. r.. .?7:.. thai a Hank and its branches an- luit one concern, and tliat llie ai)i)licaiion must therefore he discharged with cust> Built V. iornirfc, I. 32. IV. Winding-up. Interest to be Allowed to Cred- itors — ".Icc^ptancc" of a Hill by a /i'ii/;/>\|— C)i. the application of tlic lii|iiulators of the Uank f^r llie direc- tion of the Court as to the allowance of inicrcst 10 the several classes of crtilitors other than noteholders — Uihl. that unless there i> a surplus of a>>ets availalile after |)aynieiit of the principal of the debts, all inter- est cease> after the conunenccincnt of the winding iip- If. howe\er. there should be any fuiid> available for the purjio^e, in- terest should be allowed as follows: J)eposit(jrs who before the wiiul- ing-up had been rec'civing interest without written agreement, and de- positors entitled to interest by spec- ial agreement, should be allowed in- terest at the agreed-cn rates, just as if the FJank were not being wound up. and any dividends paid them should be applied, first in payment of the interest accrued, and then on account of principal in the ordinary way. Depositors wiiose accounts did not bear interest and general creditors can only claim interest if they have made a demand in writing upon the li(|uidators under the statiue ,^ & 4 William IV, c. 42. s. 28. " with no- tice that interest will be claimed from the date of such deiuand until the time of payment." and then they are entitled to interest at six per cent, per annum. Holders of drafts and hills of ex- change issued by the Bank, drawn either on its own branches, or on other Banks or bankers who acted as agents of the Bank, will be en- titled, under section 5, s-s. 2. of The Hills of Mxchange .Act, to treat them either as l)ills of exchange or prom is-ory notes of the Bank, and can claim interest at six per cent, from the time of presentment for p.iymcn lo the drawees under section 57 of tiic Act. Tiie fact that these hold- ers knew that an immediate present- ment for payment would be useless does not entitle them to intere^t from the date of the winding-up. lit re l-.iist of /■.iii;lait(l liaiiL'iiiii Coiitf'iiiiy, I.. R. 4 Ch. 14. and section 4() "f The Hills of F..\change .\ct. Holders of chec|ues drawn on the Hank by customer- and accepted or certified by the ledgerkeepers in the ordinary way and charged to the cus- tomers' accounts will not be entitled to interest, unless they have ser\cd the demand and nntice under the statute T, Sc 4 William IV. as in the case of other ordinary creditors. Such an acceniaiue or certifying of a che(|ue I)y the Hank cannot be held to he an " acceptance " of it so as to luakc it an accepted bill within the nuanin.g of section 17. s-s. 2. of The Hill.s of Rxchange .'\ct. especi.il- Iv in view of the i)rovis:ons of sectinn 90 in the case of an instnuuent " signed " by a corporation, the im- pression of the name of the Bank by the rubber stamp in use for certify- ing clierpies imt being equivalent to sealing the instrument by its corpor- ate seal. Re Commercial Bank of Maiiitohii. Ke Chiiins for Interest on Debts Proved. X. 187. .(';((/ see Re Moiiitohti. /(/^'((, X. 17 Commercial Re Ihuique lUinl: of d'l/oelie- BILLS AND NOTES. I. ArtEPTANCE. H. C0N.SII)ER.\TION. HI. Form .wd Contents. IV. CONSTKLCTION AND OPERA- TION. i- :!' -i^- mm BILLS AND NOTES. V. Execution and Delivekv. 64 VI. Pkesentment and Notice of U IS HONOR. VII. Transfer. VI 11. \'ai.idity. IX. Lost Bills and Notes X. Actions. I. .Vcceptance. Firm Name.] — A bill \va.s drawn upon M. & McQ. for goods supplied to .M.. MrQ. & Co. There was. in fact, no sucli firm as M. & McQ.. and the bill being taken to M., McQ. & Co.. their manager, whu had power to accept in the name of the firm, ac- cepted in the name of M. & McQ. Held, that the firm was not liable. The acceptance cf a bill, payable at the office of the drawer, carries with it notice that the acceptance is ac- comuK dation. Quebec Bank v. .l/i7- ler. III. 17. Payable when Debentures Sold — Evidence — Identity of Debentures.] — The defendants accepted a bill of exchange dra\vn by the Town of P.. payable " when the balance of deben- tures (S.v.ooo) in our hands arc sold by us, and proceeds received, and our claim as at this date and interest to date of iiiiymeiu has been paid." The defendants at that time held de- bentures (if the Town of P. as secur- ity for certain advances and with power to sell them at a certain fig- ure. They assumed the debentures at that figure ; notified the Town that the debentures had been sold ; and enclosed an account crediting the Town with the amount. The de- fendants asserted that their claim in- cluded certain other debentures of the Town, which they then held as owners. Held, I. That the evidence was ad- missible to identify the debentures referred to in the acceptance. 2. That the debentures had been sold, and the proceeds had been received within the meaning BILLS AND NOTES. 06 Hi'ld. that till- instrument was an apret-nunt nRTfly and not a prom i5S'>r>' note. McRnhhif v. Tornoicc, V. 114. Extra Words — Statement of Cmi- siderittioit for X\.'liicli Xote iiivcii.\ — riaintit'fs sued as indorsees of two promissory notes niad<; by defend- ant, payable to tlie Watson Manu- fiutitring Company, wliicli stated on tluir lace that they were given for a binder, and tliat the property tliere- iii shoubl remain .n tlie i)ayees until paynK-nt of the notes 'n full; als > that the payees were to provide all ripair> re(piircd for the binder, and any iniprovments that miRbl be add- ed to their binders before the ma- turity of the note. tlehl. that these instruments were futrotiable pmmissory notes, not- withstanding the special provision at the end, which should be construed as a memiirandum to show that^ tin' payee- had iiromised \n provide the ihinu's metitinncd as part of the con- sideration for the defendant's i)roni- iM' !o pay the notes, and not as a condition attariied to the abs'ihuc prniiiisv to pay. /hitry v. Macaid iiy. 16 M. & \V. I4fi, nnd Slieitloii v. J tu'is. 5 Q. H. 10'). d stincuishc'!. }fcrcliauts' Bai^k v. Iiniiloj^, IX. 6.',?. Extra Words— /.(Vn A'.)/,-.]— The in-trnni'. iits sued on in these cases cnnt.iined the usual provisions of a priiiiiis-ory nnte. with additional provisions to the effect that the title, ownership and properly for which they were given should not pass froiti the payees until payment in full; that if the notes were not paid a; maturity, the vendors miirht take possession of the machiiicry for which thfy were gi\en and sell the sanu' at public or private sale, the vrncceds less the expenses to be ao- Iilied on the notes ; and that sucli ac- I'on should be without prejudice to the right of the vendors to iforthwith collect the balance remaining uni)a;d. Held, that the instrumeiUs could not he regarded as negotiable prom- issory notes, because the added pro- visions were matters entirely unwar- ranted by s-s. .1 of section 8j of The Hdls of Isxchange .Act. iHf Ex- elianf^e or .lu'i'rinent—.lcirf'tanci-.] — Dctciul.mts accepted two drafts, in the following words: "We will keep the sums of ^Cw^s and $405 j,^ from the first estimate of McLean and Mor.'in & Co., as re(|uesied ,iboi-e, provided they have done sufticient work to e.arn that sum." Held, to be proper bills of ex- change. Mel.i-iVt V. Sliii-lds. I, J78. Payable in Legal Tender. | — //(■/(/. tli.it ihf word> '■ iiaxable in legal tender money," in a no'.e, con- vey no meaning beyond or oth.Twise than would have been given K) the note if these word> h.id been oniit- fed. Xorthweslen: Witi'r^al Bunk V. .f,in'is. IT, 3.V Effect of Blanks.]— A promis- sory note worded .is fcdlows: "On demand, months .-ifter date. I promise to pay to .\. B.. or order. the sum of . with interest .it ten iier cent, payable half yearly on ,10' h .\i'ril and .U'-t Ociolier," is a negotiable promissory note within the meaning of section S_> of Tlie Hills of Exchange .\ct. iSoo. Connnririal Bank of }fanitoha v. AlUin. X. 3,',o. Payable Ten Days After De- mand After Date - Hcmand -- IWiiver of f'rrse'ilntent — .Statute of Limitations.] — Action upon ;i prom- issory note ni.-ide by defendant, dated ir'ith May, iS8_v payable '■ t'.ti d.iy- al'ier dem.-md after date." :tt the l'"ederal H;ink of Can- ada, Winnipeg. On 20th June, iSst.^. and tin gth July. 188;?. plaintiff went to defendant and asked lii-n for money: on each occasion defendant paid him $75, Both paymen's were. 1 I ■■'; : (i; BILLS AND NOTES. 68 VT\ tlicir r'spcitnc (l;ilcs, iiidorM'd on tlic hack (if tlio imti' liy (Icfiinlant and '-iniivd liy tlu' plainiilT. Tlic plaintiff's aitnnuy k"^^' t'vidciu-o thai in June, iH8,^ prior to tlic di'inind of tht J'jth. lie saw tlic (IcfcinUmt, who a»lei'r- inu v. UaydiK. Ill, juj. Payable upon Sale of Land.]— A note payable at ;i specified date, with interest fruiii dale uf the n itc, con- tained a proviso that " if the defend- ant should sooner dispose of or sell certain lands mentioned and de- scribed in a memorandum on said note which the defendant then own- ed, then the said note should be jiay- abie on demand ;it said B.iiik." Held, nevertheless, that the time *" T paymeiu was cert.iin. and the document a good proniissorv note. lilliott V. lieeeli. III. 213. ./;/(/ see Ontario Bank v. Mc.lrlhur, V. 381. Payee's Power to Anticipate Due Date.]-- The defendant gave the plaintiff Comiiany two promissory IK lies, both dated J5th April, i8qi, one payable ist December. i8qi, and the other payable ist December, 1892. Each note contained a proviso that " if for any good reason Massey & Co. should consider this not insecure, they have full power to declare it. and all other notes made by me in their favor, due and payable at any time." On 25th March, i8()2, the plaintiff Company declared the sec- ond note due. because the first one was unpaid, and brought an action on the same in a County Court. Held, that the plaintifT Company had power to make the note payable and actionable, upon the happening of the event mentioned, before ma- turitv by effluxion of time. Massey MfS- Co. v. Pcrrin. VIII, 457. V. ExFxuTioN' AN'n Delivery. Cheque Diverted from its Orig- inal Purpose.]— H., being indebted to the defendant in the sum of $500, procured him to indorse his (H.'s) cheque for $1,000, upon a Bank at N., out of the proceeds of which the .''■; 'll .1 oo BILLS AND NOTES. 70 dfl)t was to 1)1- pnid. 11. and the dc- fciidaiit wi'iit to a Hank at \V.. to get tlK' casli for tlie i-lic'(|Uf. II.. a'l'iic. went into the manager'.^ ronm, aiiu. on his return, ir.fornu'd defendant that the clief|ue had licen left with tlie iijanaKer, wlio would send it fur colkctiim to N. M., in fact, retain- ed the cheque, and afterwards tran-- ferred it to plaintiff for value. //<•/(/. that defendant was liable npnn the che(|ue. .Iriiold v. t"(j/(/- wcll. I. Si. 155. Indorsement on Condition — Holder zcitliout Xotict-.] — Defendant sued as indorser. pleailed that he he- came a party to the note merely for the acconiinodation of A., anres(.iitment will sulTicc if be has not by the delay been damnified. If a note be at the pl.ice for payment upon the due date, no further pre- sentment is necessary. .\n indorser suing the maker upon the note need not prove ])resentmcnt anil notice to himself, but if he sue for money paid to- the use of the maker be must show that he was legally liable, or an express request to pay. Evid- ence not objected to at the trial can- not be objected to in Term. The plaint iff. an indorsee of a note, may even at the trial strike out the names of prior ind(.)rsers. Biggs v. ll-'uod, II. 272. Payable at a Particular Place — Imfossibiliiy of Presentment at Place h'amed.] — A note was payable at the O. Bank at P. Before maturity the I ! 1 r }5 sfpwr— 71 BILLS AND NOTES. O. Bank had ceased tu dn liusincss at P. Urld, that an action could hr sus- tained withdut any demand nf pay mcnt. McRnhbic v. Torrance, IV. 426. Payable at a Particular Place — Imperial Batik — Head Office or /^ra»(7i.)— Certain promissory notes were made payable at the Imperial Bank of Canada, without stating any special place. The notes were dated at Brandon. The head office of the Imiicrial Hank was at Torf>nto. hut it had a branch oflice at Brandon, and the notes were presented at that office for i)aymcnl. Held, a sufficient presentment. The Commercial Batik of Manitulni v. Bissett, Vn, 586. Not Payable at a Particular Place. ]—//(•/(/, a note not payal)le at any particular place need not be pre- .scntcd for payment as against the maker. Gratit v. Heather, II. _'oi. Post Office Box.)— The plaintiffs were the holders of a note indnrsed by the dofindant, payable at the plaintiff's B.ink on the 15th of Sep- tember. On the 13th of Se] Uiiiber a clKintje of nianacjers of the Bank- had taken place, and the new man- ager, .-iltboMKh the note was in the Bank during the whole of the i.stli, knew tvMliing of its existence imtil the afternoon of the l6th. He then caused the note to be protested, and a notice addressed to the defendant put in the post ofifice. This notice was placed in a box rented by the defendant from the post office antb- oritics before six o'clock on the same afternoon. Held, that there had been sufticient presentment and notice of dishonor. Union Bank v. }fcKilligan, IV, 20. Bill at Place of Payment.]— If a note be at the place of payment at the time it becomes due, it is suffici- ei'.tly presented. Merchants' Bank V. I'Juh'ey. VI, 467. ■Waiver.]— Where the maker ask- ed that no demand should be made. Held, that presentment had been waived. Sparham v. Carlcv, VIII, Impossibility of 1 resentment for Payment. I — If the place .it which money is payable under a simple contract ceases to exist, it is not necessary that any demand for payment he made to en.able the credi- tor to maintain an action. Per Taylor. C. J.— If the place at which a promissory note is payab'e ceases to exist, personal presentment must he made. .McRohl'ie v. Tur- rance. IV, 114. Pleading. I -- Qiurre. — - Whether miller ;in alKiialion of presentment for payment and notice of i)n tiie making, issui' and tian'.firciicf (f a lull i>r noto may be referred to for the purpose of ascertaining llu' true relation to each other of thf jiartics who put their signatiires ii))Oii it, either as makers or mdorsers. Mc- Donald v. ll'hitfirld. H A. C 7,u: H'alson V. Harvey, lo M. R 641. Wells V. McCarthy, X, 6.vj Irregular Indorsement.) — De- fendant beiiiK indebted 10 the pl.iin- tifT, ffave him his wife's iiromi^sory note payable to Watson Bros, or or- der, and indorsed i)y defendant. The note being unpaid at matur- ity, the plaintilT, who was the 1 nly member of the firm of W'aisuii Bros., indorsed the name of Watson Br^s abiiNC defendant's name on the note, and then brought this jrtioii declar- ing on a note in fa. of \Vatson Bros., who indorsed the not", to dr- feiidant. who indorsed it to '.lie plain- tiff. Defend. Hit, aiiyongst other de- fences, ])leaded denying tiie indors;.'- meiit by him to the |)laintitY, but did not allege that the plaintitT was iden- tical with Watsnn Bros. //.•/(/, that, although the identity appeared on the evidence, as it was not pleaded, the plaintifT's title to the note was com])lete and he was en- titled to recover: also, that if the identity had Iveen ple.ided, the plain- tiff could have replied siiccial cir- cmiistanccs that would have destroy- ed the prima facie effect of the first indorsement bv him. Peck v. I'hiffo'i, U. C. R, 7},\ Moffat V. Rccs. 15 U. C. R. 527; Morris v, iralk'cr. 15 Q. B. 589, followed. H'atsiin V. Han'cy, X, 641. Indorsement by Company after Insolvency.]— Plaintiff dcc'arcd on two promissory notes made by the defendant in favor of the I^ W. M. Co . and indorsed by the Company to plaintiff. The notes, when produc- ed, appeared to be indorsed by the Comi)any, but the plaintitT did not obtain title direct from the Coiupany. The Company had becoine insolvent. and the nolt>» had become vested in D, the official assignee. Subse- (juently R. was ap|)oinie,l creditors' assigiu'e, who sold the notes to the plaintilT. No as-ignineiu fr,7V)ic,- that I'laiiittff not the Unlder must he I'leadcd.] — I'romissory notes, beins put in evi- dence, apjiearcd by the indirsemrnts ti) h.i\e been held by a Bank at ma- turity, ind defeiid.ints cl.imud ilial tlu' right of .ictioii was no; in the pl.iintitfs, but thev had wc i.nised this tlefencc by their pleadings (■•■ at the trial. Held, that effect xhould i.ot be given to it now, as plain iff s iir .dit have been able to show tr . the notes li;ul only been imloisi-d for col -c ticm, or h.'id been taken uii sjnci' i>y them. U'tleroiis liiiaiiie ll^'.'rks Co. V. inison. XI. 287. VIII. VAt.imiv. Alteration — Recovery iipni Sote as ll'hcn Issued.] — .X Coiupiuiy be- ing indebted to the plainlitTs. the Company's manager .agreed to pro- cure and deliver to the pl.-.iiitiffs a nite signed by some of the ot1iier> of the Conifpany. He delivered the note sued uiiiin. It was proved that after the ni'te had been signed, but before its delivery, the manager ;iliered the note by inserting the wnriis " idintly and severally." The plaintiff .s were ignoran. of this fact at the time Held, that the note might be -ued upon in its original condition. A note was made by filling up an en.gravcd form. Between the words " after date " and " l)romise to p.iy " the space left for the usual words " f " or " we " was very smali, and the words " jointly and severally " could not have been written in the sjiace. Held, tliat in such a case the mere fa.'i that the words " jointly and sev- 76 BILLS AND NOTES. erally " are plainly interlined by hc- ing written over the place where they are intendef". to he read. !)ut in the same handwritinfr as the rest nf the note, i> nni snlhcient ivnice of an al- teration, ]l'iili-r<}us J'.ngiiir Wurks Co., IJmitfd. z: McLean. JI, 2~(). Alteration- /ir/(/<')ic-i' o.v to Time] — Ifr'd. r. Kvidence is aihni-sdile Im prove tliat wiirds appcarin)^ over an indorsement were placed there after delivery, and that the trne iniiorsc- ment was not, therefore, restrictive. Bifics v. Jl'ood. II. 2-2. Liquor License Act— A'^^- Given for Liquor — I'ltra I' ires.] — Tlie Liquor License Act. R. S. M.. c. Qo. s. 134 provides that, " If any hotel- keeper receive in paymeiit or as a jilclge for any lifpior -iipiilied in or from his licensed premises, anyiliinp except current money or the debtor's own cheque on a Bank or banker, lie shall for each such offence be liable to a penalty of $20. and in default of payment, to one month's imprison- ment " Declaration on two promissory note- made by defendant pa\alde to plaintifT. Pleas to each count. I. That plaintiff was a licLUsed hoiel-keeper. and that part of the consideration for which the nrtte was given was for liquor supplied, by plaintifT to defendant in his hotel. 2. That the note was received from plaintiff as a pledge for liquor sup- plied by him to the defendant in his hotel. On demurrer to these pleas — Held. I. That they were good on the ground that by the imposition of a penalty for taking anything but money in payment, or as a pledge, for liquors supplied in licensed prem- ises, the Legi>;laturc had clearly in- tended to make it unlawful to take anything but money. 2. That the .above provision was intra 7>ires of the Legislature. Hodi::e V. The Queen, .\. C. tr;. .and Citi- ccns' Insurance Co. v. Par.<;ons. 7 A. r. 96. applied. Benard v. MeKax. IX. 156. IX. Lost Bills and Notes. Practice — Indemr,ity — Costs — Keterev.ee to the Master.} — In an ac- tion on a lust promis.^ory note, when the loss is pleaded, the plaintifT should, in general, tender the defend- ant a proper bond of indemnity with a sufficient surety or sureties before afiplying to set aside the pica under section 69 of The Bills of Lxchange Act, 1800, in order to avoid paying the costs of this defence, and of the application. Although the words -.ft the statute are that .an indemnity " to the satis- faction of the Court or a Judge " is to be given the security may be left to the -Master to settle. Slioolhred v. Clarice, (i8go) 17 S. C. R. 265. fol- lowed. Adjudication as to costs of motion to strike ont plea of loss if note when the br)nd tendered w.as insuffi- cient. Ortoii v. Ihrtt. XII. 448. X. Actions, Pleading— /),■„, (7/ //;.;' Chajue Pe- li-i'ered in I'aynieut of a Debt — De- nial of I ndorseinent.] --Thi' second ci imt alleged the drawing of a clieque. payable to ().. that the che(|Ue was delivered to O. in payment of debt due O. from the plain'ifT. "and the said O. being the lawful holder of the said cheque, and entitled to receive the amount there- of, duly presented," etc. Plea, that the cheque was not delivered to O. ! in p.ivment of a debt. i Held, plea bad. The fourth count alleged the draw- ing of a cheque payable to the order of the Union Bank of Lower Canada, I who presented it, etc. Plea, that the j said Bank did not indorse the cheque to the defendants, and refused to in- dorse it. i //(•/(/, plea good. Todd v. Union j Banh ,,f Loieer Canada. I. 119. I Pleading _ Comfany's Note Im- , properly Issued— Proof of Purchase siU i BILLS AND NOTES. 78 for r'a/i(r.]— To an action on a note, the defendant Conipa:-y pleaded noii fecit. The note was tlic Company'- in point of fomi. hut liad tiecn issued frnudulently by the officers of tlie (■om()aiiy. //,■/(/. tliai tlie plaintilT \v;;s n^it l.otmd to prove iliat he Ravr_ vahie for tlic note, in the ah>ence nf a plea of fraud. Faiincrs' mid McclnmiiS' luink V. I hiiiiiiiiflii. etc.. Cihil Co.. IX. 54-'. Leave to Defend — Bill nf I'.x- clhini^c Act — /:.r parte /..Mr.'. | — //.•/ in force m Mani- //.■/(/. a Judge may pran; leave to .lefendant to appear to a writ, either ex parte or upon summons. Held, that where an order is grant- ed ex parte, no application under the 'Statute of 18S3 for leave to sign final judgment, setting asiile the ap- pearance, will lie entertained, but an application to rescind the ex parte . nk-r may he made to any Judge. Canadian Bank of Coiiniierce v. .■h!j)iisi>ii. I. ,^. Leave to Defend — 'lime for .//■- plication.] — Held, that in an action un.ier The Bills of Exchange Act, a Ji'dge in Chaniiicrs lias no power to extend the time within which a Ih'feitce.] —Parol evidence of a x'erhal ;igree- rnrnt, made at the time ..f signing a promissory note, that the note should not he payable at maturity, is not ad- missible; and more especially if there he a written agreement, made at the same time, inconsistent with the al- leged verbal agreement. Such evi denie could oi-'y be given oi> the ground of fraud or mistake. .A de- fendant <;hould be admitted to defend in an action under The Bills of Ex- change Act where there is a sliadow of reason to believe that he has a de- fence. Where evidence of the al- leged defence wf>uld be inadmissible, no appearance shotdd be permitted In\f'erial Bank v. Brydon. II. 117. Leave to Defend — [discretionary Order.] — A writ was issued un.ier The Summary Procedure on Bill of Exchange .\ct, 1855. on a promissory noie made by the two difeiidants, and judgment was obtauieil by de- fault en Ji-t .\pril. iSqi. On the 3)th Sip'emb.r. 1802. the defendant. R. T. I... applied in Chambers to ■ief aside this judgment on the ground that, at the time of making the note, he was an infatit, that he j.iincil in the note only as surety for bis co-.ic- feiidaiit. and that his co-defendant pronnstd to settle tlie suit: al-o. that for that reason he did not defend the action, and heard nothing more of it nt'til, o;i thv 24' h Sep;e idler. i>0-'. the -lieritT srized his crop under nn execution. An order was iiiikK' in Chambers setting a-ide the judg- metU. and granting leave to defend. On an apjilication to the Full Court to reverse this order— //.■/(/. (Killani. J., dissenting), that the Judge in Chandlers having exer- ci h Id in escrow until the settlement of cer- tain accounts lietween him .niil the payee, and that it had been fbdivered o\er to the payee without his con- sent. 'I' '4' • 79 BILLS OF SALE AND CHATTEL MORTGAGES. 80 I i Held, tliat. under The Bills of Ex- change Act, iHqo. s. 30. s-s. 2. de- fendant was entitled to rlefend willi- out shiiwinR that plaintiff was not a holder in dut courM'. J'lour City Bank v. CuK.ncry, XII. 303. Duress_A\vo7rn' oj Mmu-y I'aid on \'treferred against him by th" plaintiff, and that the defendant was not re.illy liable for such claim, th.it he liad acted wilhont legal or independent advice, and had been induced to l).lieve tli.-it lu- w.is liable for the amoimt ;ind signed the notes in that l>elief and in consecjuenee of such threats, and that save as aforesaid no v;iluc of consid- eration had passid for tiie making or payment of the notes. Ih-id, (Dubuc, J., dissenting), that this plea was good, as il showed suf- ticimt grounds in efjuiiy for grant- ing relief to the defendant. Mc- Clatcliir v. HasUiiii. 6-:, L. T. N. S. 691, and Oshiildisti'ii v. Siinpsnii. i,^ S. 51.^. followed. The other plea dennirred to was one of counter claim, setting up the same state of facts as to the giving of the note? in f|uestion, and that the flefendant h;id paid certain suius of money on accotmt of ■•-uch^ notes and seeking to recover hack such pay- ments. ffiid. lh;it this ple;i could not be supi>'ir;ekrl'y. X. 281. .Vt'i' JfnCiMf.NTS, III. III. ExEcmoN AND Affidavits. IV. Non-Application of Act. '\'. Cii.vNGK uF Possession. VI. Registr,\tion, VII, Growing Crops, \'III, Rights and Liabilities oe Parties, I. Reoltsites ami Vai.iditv. Mortgage to Secure Future Ad- I vances — l\iyaidc in Ti^'o Vcdrs.] — A mortgage to secure future ad- vances nuist be re-p;iy.iblc within two ' years, .l/oti',// v. Clriiicnt. III. 5S5, Good in Part.]— A mortgage may ' be good in part although !)ad m part. ; Miiwal V. CU-nicKt. Ill, 585. In Good Faith. )— If a mortgage is taken for a fair consideration, and not for a collusive purpose, the pr.intee is a mortgagee '" in good faiih " within the meaning of the statute. Kiii;^ v. Kuhv. 4 M. R. 41,^ 1 overruled. Rotf v. Krcckcr. VIII, 1 230. BILLS OF SALE AND CHAT- TEL MORTGAGES. I. Rf.Otl.siTES AND \'.\LII)ITY. II. EoPM AND Contents. II. Form and Contents. Mistake in Name.] — .Abram V. I'ecksted executed ;i chattel mort- gage in which his name apjieared as Abram B. l?ecksted. He signed his name correctly. Iltld. that the mortgage was void as .igainst creditors. I'uii Wliort v. Smith. IV. 4jr. Bill of Sale Really a Mort- g'age. I — If the transaction between the bargainor and the bargainee in a bill of sale, filed in appareiU com- pliance with The Bills of Sale Act, R. S. M., c, to, s. 2. is really a trans- fer to the latter by way of security only for the re-p;iyment of money, and not an absolute sale of the goods and chattels compri'-ed therein, the mi 81 BILLS OF SALE AND CHATTEL MOBTOAGES. 8L' bill of sale, in the absence ol imme- diate delivery and actual and C(in- tiniicd change of po5sessi"ii. will lie he'd void imder that scctidu. Mathc- son V. Folhh-k. 3 B. C. R. 74. and B.ithf^atr v. Merchants' lUmk. 5 M. R. 210, followed. Bodiiy \. Ash- down. XI. 555. Consideration — True Considera- tion Must be Stated.]— Thv true con- sideration for a bill f)f sale must be se! out in it witii -ubstaiitia' .accur- acy. Bathgate v. Merchant.';' luuih. \. 210. Consideration — Xntes under [discount.] — .\. e.NCcuted .i chattel riiortfjage to F.. the consider.a'inn be- ing 'Stated as SiiiJ.Jri. It apiie.arid that nf this amount $612.20 was made up of notes given by A. to !•".. but then under discount in tlie Mer- chants' liank, and not due. and the sum of $300 advanced in casii. The notes were subsefjuenily taken up by F. and he [jroduced them at the trial. The usual mortgagee's affi- da\it was indorsed upon the mort- gage, st.iting thai liie mortgagor was iu.Ntly and truly indebted lu the mort- gagee in the amount mentioned in thi nmrlgage. //./ to the date of the mortgage, transferred tn a Rank as collater.al security for his own debt. llehl, that the mortgage was not tilion tliat account invahM. Fisli v. Il'^i^ins. 2 M. R, 65. followed. S;ef'hcns v. Mc.lrtlntr. VI, 4()(). Kever-ed, .\I.\, S. C. R,, 446, Description of Goods — General Words.] — The goods in a chattel mortgage were described as "all and singular the goods and chattels hereinafter mentioned and described, being all the goods, chattels and ef- fects set forth and jnentioned in the paper writing hereunto annexed, marked ' .\.' which goods, chattels and effect^ are situate in a certain building occupied as a store by the mortgagor on together with all the goods, chattels .and elTects, stock-in-trade and merchandise which the said mort.gagor sh.ill hereafter purchase from the mortgagees, and place in and upon the >aid premises iluring the currency hereof." The schedule annexed was in the form set out in the iudgnient of Killam. .1, Held (Killam. }.. dissenting 1. that this wa< a suflicieni description of the poods intended to be mortganed. //,.Tvv V. Il'hitint:. 14 S. C K. ^15. followed. Fisher v. Brock. VIII. ,'l III. I"..\rc CTioN A.\n .•Xffidavit.s. Affidavit — Jl'ord ■'him" 0,ni!- ted.\ — A chattel mortgage is good tliough not executed by the mort- gagee. ,and though the word "' him '' be omitted at the conclusion of the at1ida\it of bona fides. Held, tiiat the manager of the branch of ,in incorporated Bank to which a chattel mortg.igc i; mnde for ,-1 debt due tlie Hank at that branch is an agent authori;:ed to maki' the alTTidavit of hona fides. uiHKr .^4 \'ic.. c. 17. Ontario Hank v. .Miner. T. \V.. 107- Affidavit — False .Iddition.] — In ,an atVulavit of hinui fides of ;i chattel mortgage, the .addition of the de- ponent was statid ti be a trader. lie was not in f.act a .r.ader. Held, not i(] vitiate th.; mortgage. lull n'liort \. Smith. W . 421. Affidavit _ Xot Signed hy Com- missioner.] — .V cliattel mortg.ige is inv.alid and of no et'fect as again.st the execution creditor> of the mort- gagor, where tire jurat on the alVi- { 1 BILLS OF SALE AND CHATTEL MOBTOAGES. 84 davit of execution filed with llic mortgage lias not been signed l)y the commissioner before wlioni it was sworn, althougli the mortejage was ■executed in duplicate an 1 the wit- ness had signed and sworn to the affidavits of execution on both orig- inals, and the coininissinner had sign- ed the jurat on (3ne of the originals omitting by inadvertence to sign the other, and both had been sent to the Clck of the County Court for hin^ to file one. and return the other cer- tified, the Clerk ha\iiig retained the one with the defective affidavit. The '^ign.'iture of a person having authnrity to administer the oath is an essential part of an ;ilTidavit. fuiiMii V. Rac. Ramsay. Claimant. X, 411. Affidavit — Swoni Before Mort- gagee as Commissioner. ^ — I'luler The Bills of Sale .\ct. R. S. M.. c. 10, a mortgage is not rendered in- valid or void by reason of the affi- davit of execution being sworn be- fore the mortgagee himself, he being a commissioner for taking affidavits in the Queen's Bench. Ineli v. Simon. XII, i. Affidavit— .S"i.;,';i((/)(>-,- ,>f the Coni- missi()ner o^er the Jurat.] — The position of the signature of the jus- tice of the peace did not vitiate the mortgage. Mo'iivt v. Clement. III. 585. Affidavit — Mis-statement — Amount of I.idehtedness.] — Held. following Martliinson v. Patterson. (1892) iQ .\. R. 188. and Martin v. Samf^son. (i8q6) 24 .A. R. t. that an error in the stateiuent of the indebt- edness in the affidavit of bona fides sworn to by the plaintiff and attach- ed to the chattel mortgage was not, in the absence of fraud, fatal to its validit^■. Bernliart v. MeCutchcon. XII. 394. Affidavit — Blank for Amour.i of Indebtedness.] — The affidavit of bona fides attached to a chattel mortgi.ge contained the following: " Tlie mortgagor in the foregoing bill of sale by way of mortgage is justly and truly indebted to me this depon- ent, Alexander Mdnlyre, the mort- gagee therein named, in the sum of dollars mentioned therein." Held, insufficient. Mclntyrc v. I'ninn Baiik of Lon-er Canada, II, 303. Affidavit Kirelihoffer Infra, \TI. Growing Crop.] — See Clement. XI. 460 IV. Xon--Appi.ic.\tiov of Act. Sale of Grain to be Threshed and Delivered.]— The Chattel Mor^ gage .Act does not apply to a sale of grain in the stack wdicn the bargain rec|uire> the vendor to thresh and afterwards deliver it. Parenteau v. Harris. 111. 329. Cultivation and Delivery of Grain, | — A chattel mortgage which was expressed to be void '' if the mortgagors do cultivate all the brok- en land upon all the said sections during the present season and reap and thresh all the grain produced therefrom in a proper and workman- like manner and after the course of good husbandry, and do deliver for the benefit of the mortgagors at V.. not later than the 31st day of March next, one-half of all the grain aris- ing from said sections 23 and 25; and if the luortgagors shall fall plow the said portions of all the said sections in a proper manner during the pres- ent season." field, the .Act did not applv. Mow- at v. Clement, III, 585. V. Ch.\ngi^ of Po.ssession. Immediate Delivery.] — Inter- pleader issue respecting the right to a stallion. D. H. acquired the horse in ([uestion in' March. 1891, During i8qi and 180- printed notices were put up advertising the horse, in which it was stated that reference for par- ticulars was to be had to D. H., al- though there was no statement of imi 85 BILLS OF SALE AND CHATTEL MORTGAGES. 86 the ownership of tlie animal. M. did n. t himsilf travil wiili or persi>ii;d!y take care nf the horse but arr.iiiKt.- iTients were made in his name witli the persons at wliose places the horse was put uj), and printed forms were UH'd, on which was the heading, " 1). ilopc. prnprietiir." On 20th fnne, i89_'. plaintiff bought the horse from H . giving his note at six months for the amount of purcha--e money, and II. gave him an absolute receipt ac- kn iwledging ii.'iyment of the wholu of the purchase money, and an order for delivery of the iiorse. The horse was then away in the country, and wa? not hroughi l)ack tn Winnipeg iiiiti! 2,^rd June, when plaintiff pre- sented the order to C who tnok care iif the horse and tidd him he had bought it; he I'lld C. to change the book containing the forms nf con- tracts by sulistitnting the pl;iint;tT'< name for that of H. : he gave C. charge of the h 'rsc. and told hinv to tcH evervbody tliat tlie horse was liis (plaintiff's). //(•/i/, that the transaction must be tri.iied as a real agreement for the sale of the horse to tlie plaintiff. The plaintiff's note was apparently ac- cepted in payment, and there was 5ucli a delivery and acceptance as satisfied the Statute of Frauds. Bu: that the sale was vfiid as against the defendant, because of its not having been accompanied by an immediate delivery, and the posses- •iion of the plaintiff could not avail to give Iiim a title, which the sale did not give as against the defend- ant in the issue. Jachsoii v. Bank of A'lTM Scotia. IX, y^. Hcnilhirt v. McCiilcliion. 394- XII. Possession Under Invalid Mort- gage, |_A chattel mortgagee wdiose ni'Ttgage was prior to an execution, but was void .-is against it for non- compliance with the -Xct. cannot by taking possession after the delivery of the writ to the sheriff, claim to be n purchaser for value, without notice Oi the writ. Vouni; v. Short. Ill, ,^oj. Possession Under Invalid Mort- gage,] — - Interpleader issue respect- ing the ownership of certain horses siized in execution against the de- fendant and claimed by his mother. On the 2nd October, 1894, a ver- bal sale of the horses in ciue>tion was made to the claimant, and part of the [uircha.se money was then paid, anrl the claimant stated in her evidence th.'it the horses were " hers from the 2nd of October." For the conveni- ence of the claimant, however, and at her request, the defendant continued in actual possession of the horses un- til the I2th of November following, when lie called upon the claimant and told her that he was going away, but bad left everything all right, and that a boy who had been in his em- p'oyincnt Could take care of every- thing; and thereafter the claimant by her servants, remained in actual possession of the liorses. The Judge at the trial found that the sale was bona fide. The execu- tion was not issued until Jaimarv. I So?. 1 1 rid. that the sale was good as niiainst the plaintiffs, notwithst;ind- irg The Rdls of Sale .Xct. R. S. M., c. 10, s. 2, and tb.it this case might be distingnislnd from Jackson v, /•■'iT).-,^' of Xova Scotia, g M. R. 75, on the ground that licre there was a de- livery by the vendor on the 12th of Xovcmber, and that wdiat then took pl.ace ])rought the case within the rule laid down by Patterson, J., in Wliitinp, V. //(nvy. i,^ .\. R. 14. that, .ilthotmh a grantee could not, by any .act fif his own in seizing the goml^, gi\e himself a better title than he had under his deed, yet the grantor might, by making a delivery wdiich would opcr.ate as a conveyance of goods cajLihle of passing at law by delivery. etTectnallv cure a prior de- fective conveyance. Trust and Loan Co. V. f, '')•;;'/(/. U'ri'^ht. Claiuur't, XI. 314. \'I. Registration. Where to be Filed, ]_A chattel mortgage must be filed with the imm 87 BILLS OF SALE AND CHATTEL MORTGAGES. 88 Clerk of tlie County Court in tlic Judicial Division in which tlie mort- gagiir resides, tlie chattels being or- flinarily kept anil used there by him. The fact th.it the chattels are tem- ])f'rarily in annther Judicial Divisinn at the time the imirtgage is made catin'it make the tilinjj of the mort- gage ill that Division effectual. Roif V. Krccki'r. X'DI. 230. When Unnecessary. I — Regis- tration of a hill of sale is unnecessary when the goods are in the hands of a warehouseman who becomes the agent of the transferee and agrees to hold the goods for him. Jones v. Ilt'udcrsini. Ill, 4,vv When Unnecessary.] — Held, fol- lowing Clithiri! Y. I.d^aii, Q M. R., 42.V tliat an instrument creating only an equitable charge of this nature upon property not at the time in ex- istence did not, before the .Act. 57 \'ic.. c. I. s, J (M,), conie within section t, of The Bills of .Sale .\ct so ."'s to require registrali 11 to make it operative as atrainst an execution creditor, and the Act of 1894, repeal- ing section 4 of The Bills of Sale Act and substituting a new sub-sec- tion, did not afifect a prior existing instrument. liaiik of Brilisli Xortli .liiieriea v. Mefntosli. XI, 503. Notice to Creditor — Invalid Mortfia^e.] — If a particular creditor is aw;ire that there has b^'cn a sale of chattels and an actual and con- tinued change of possession follow- ing it, he cannot he i)rejudiceil by the fact that a written bill of sale or mortgage has mH been filed in ac- cordance with The Bills of Sale .-Xct, and the s.-de or mortg.'ige may be held valid as against liis claim, al- though the rer|uiremeins of that .Act are not fully complied with. Rob- ertson V. W'reun. X. .^"S. Notice of Unrenewed Mortgage to Subsequent Purchaser.] — De- fendant held ;i chattel mortgage up- on some oxen. It was tiled, but after the 'apse of two years not re- filed. FlaintitT aftei that period bought the oxen with notice that tht mortgage was not paid. Held, that as against the plaintiit the mortgage was valid and clTectual King V. Kulin, IV, 41,?. Notice of Unfiled Mortgage to Subsequent Mortgagee. ]— A second chattel mortgage made in good faith and for valuaijle consideration, takes priority over a prior unfiled ch.ittel mortgage, even if the second mort- gagee lia^ actual notice of the \yTwr mortgage. Roff v. Krceker, VIII, -'30. \TI. Gkowing Crops. Priority.] — A chattel mortgage covering growing cro])s or crops to be grown do^s not come within the provisions of The Bills of Sale Act. R. S. .M., c, 10, so as to need filing under the .\ct to preserve its v; id- ity. Clifford v. Logan. IX, 423 Priority.] — .-\ mortgage of grow- ing crops or crops to be grown can- not prevail over a prior execution in the hands of the sheritlf against the goods of the moitgag'^r. Clifford v. Logan, IX, 423. See also Sniitli v. I'liion Bank of Canada. XI, 183. Form — Deviaiion from Prescrib- ed Forms — Seed Grain Mortgage.] — In an action by the plaintiff claim- ing damages from the defendant as sheriff for the seizure of the gram grown on the lands of one Murray, under an execution in his hands, the lilaintiff claimed the grain by virtue of a chattel mortgage for the pur^ chase money of seed grain sup;.)h.C'.: to .Murray in the spring of the ^air. year. Murray being in want of "-..-.'•; at that time, applied to the plai'i'ifi, who gave him an order on a firm of grain dealers for the anVHint re- r|uired, and took the mortgage in (|ucstion, which was completed and registered before Murray actually got the grain. The dealers afterwards supplied th» grain to Murray and n< ,15 Mi; H9 BOND. 90 ohargfd the price to the plaintiff.who panl it. 'I'lic alVidavit of htnui fidrs attach- ed to till- iiKirtgagc containcil a state- imiit tlial the monpatre was taken •• t"r seed grain." hut did nut con- l.iin the full statement required hy i!h' statute. 57 Vic. c. i. s. j, '■ that ilu- same is taken to secure the pur- ch.ise price of seed grain." , The defendant gave nn evidence .1 tlu' iudgiiient .ngaiiist Murray, nii uhich the executiou in iiis liand-had lutn issued. //.■/./ (Taylor. C. J., dissenting). ih.it the cliattel ninrtgagc had really i)een ;aken to secure the purchase price of seed grain within the inean- iiii; of the st;itine and not merely as ;i security for mnnoy advanced hy. the i>l;iintitT I'l Murray to ])urchasc ilu grain, '.mil was, therefore, good ;iii(l valid as against tlie nmrtg.-igor. ;ii'.(! that no affidavit nr registration wris necessary in protect the plain- \\{\'- rights as ag.ain.-t the mortgager. //<■/(/. also (Duhuc. J., dissenting). ;!iat Ti'itwithstanding section S. s-s. tuit) of The Intcrpret.-ition .Act. R. S. M.. c. 78. the .-ilhdavit of the mort- j.-igee did not snthcieiuly comply with the statute, and that the mortgage \vi>ii'd. hercfore, not hase heen sus- taiiud as against the defendant re- presenting a credit ir if lu' had gi\'en evidence of the iui'gnient. Kirch- h. :'■.■!■ V. driJiri;!. XI. 4'io. Mortgage to Secure Cultivaticn of Land — ./•((/ /,' /'rlirt-r Half tlir '■'■"/'• |— The mortgage, so far as it related to the delivery of one-half of the crop and the fall ])hnving. w.as ;;':t within the statute at all. and was tlurefore vali'l witlnmt regisiratinn. \',':.'iit V. Cli'iiii'iit. III. 585. .SV(' aiso Execution. I. ^III. Rights a.vd Li.\bii.ities of P.M^TIES. siock-in-irade. It contained a cov- eiiam th;it in case the mortgagor should ■■ attempt to sell or dispose of. (jr in any way part with the pos- session of the goods or any of them or to remove the same or any part thereof out of the store and premises without the consent of the tpnrtgagee to such sale, re- moval nr disi)o..al first had and oh- tained in writing, it shall he lawful f'lr the miirtg.agee to take posses- sion," etc. The i)laintilTs remained in possession and continued to make sales in the iisua! course of husiness. Shortly .afterwards the defendants ; nhiained judgmein against the plain- tifls, and tinder fi. fa. goods caused I the same goods to he seized .and sold. I The /(. f(t. w;is .afterwards set aside ' as ha\ing heen issued in lireach of an .agreeouiit. In ;i:i action in trespass i .and trover the ilefend.mts pleaded i not guilty, .and not possessed. //(■/(/, I. Th.at under the plea of U'l possessed the defendants might sit up the chattel mortgage and the hreach of the covenant not to sell. _'. That the covenant not to sell was al)solu;e ;ind ivt suhject to the im- plied e\cei)lion. " save in the usual Course of husiness." I Qium'.—li a mortgagee r'ght fully ! -eize. hut unlawfully sell, the mort- ' gaged goods is hu a tresp:i>ser nh initio' \ chattel mortgage i)rovid- ed that upon certain contingencies ; the mortg.age> mitrht seize the goods, .and upon, from and after the seizmx ' the mortgagee might sell. etc.. and from and rmt of the proceeij., pay and reimhurse himself. " all sucii sums .and sum of niioney ;is may then he due hy virtue of tliesc presents." lli'hl. th:'t the mortgagee having rightfully si'ized llie goods, might lawfully sell them although the mortgage mom-y might not lia\e heen p.iy.ah'e. Although not payahle, it was nexertheU'ss •• chn ." Prdcrirlc V. . /i7)(/(>ii'/'„ I\'. 1,^1). Mortgagor Selling the Goods — Ph'iilnit^ — Dchiliiiii in Picsmti.] — Till plaintiffs gave to one of the de- fendants a chattel mortgage upon his BOND. Joint — Pi-iniincr.] — .\ctinn ou a joint hond .against three ilefendants. I'l 91 CANADIAN PACIFIC RAILWAY COMPANY. 02 'I'hc dLclaratiiiii nvealid the fact that five pcTMiris were lial)li.- j'>iiuly with till' (IcfciKlant. UilJ, that as the declaiatinn did nut slinw that thfsc otlicrs liad sealed the hond, and wore resident within the jurisdictii)n. the defenilanl shouhl have i)lcaded tlie non-jnindcr in ahatenient. and not have demurred. Moore V. Vortuuc. II. _'8. Impossibility of Fulfillment of Condition. I — .\ftir ilie determina- tion of a replevin action, hrought by S. against R.. in whicli R. was suc- ce>sfnl. R. ilistrained the goiid> in (|uestion for rent due by S.. and then sued S. ui)on tlie replevin bond for non-delivery of the goods. //('/(/, that the defendant could not sliield liimself on the ground of tlie impossibility of delivering to the plaintiff that which the plaintiff had himself taken. Robinson v. Scurry, I. 257. See Replevin. BOUNDARY LINES. Survey — Rr-sitizey — Ratifica- tion — Road .ilozcance — Dominion Lands.] — Under sub-section 2 of section ijg of The Dominion Lands .\ct. as re-enacted by 52 Vic., c. 27, s. 7. it is necessary that the Gover- nnr-General-in-Council should first direct the cancellation of tlie old sur- vey and the making nf a new one in case of any gross irregularity or er- ror lieing discovered in the survey of any township, and the proceedings were held void altogether where a new survey was made on the author- ity of the Minister of the Interior without a prior Order-in-Council be- ing passed, although such new .sur- vey was afterwards ratified by Or- der-in-Council. field, also, that as a number of the parcels of land afTected by the new survey had ceased to be Domin- ion lands, the new survey was in- valid because the Act applies only to Dominion lands. The road allowance between tiie two parcels of land in dis])utc had become the property >)f tiie Province of Manitoba by virtue nf the .Vet. .?Q \'ic., c. 20. s. I, ([)). and lor that rrason alone it wnuld be iniproiier tn change the bound.iries by a new survey not authnrizcd by Provincial legislation. I'ockett v. Pool, XI. 50S, BREACH OF MARRIAGE PROMISE. Corroborative Evidence.] — The cormbiVatiun necessa-"- in an actimi for breach of promise need not go the length of. by itself, proving the promise; it will be sufficient if it sup- liorts the plaimitT's evidence in ri - sjiect of the promise, so as to make it appear reasonably probable that her testimony, that the promise was given, is true. Circumstances which are as consistent with the non-e.xist- cnce of a promise as they arc with the fact of a promise having been given, can scarcely be taken to atToni the material corroboration that tl;e statute requires. Waters v. BcHanix. v. 246. CA. SA. Sec Attachment of Person, II. CANADIAN PACIFIC RAIL- WAY COMPANY. Powers. — Lands.] — This Company has power without a license (requir- ed by the statutes of this Province) to take. hold, sell or contract to scil lands situate in the Territory added to Manitoba in 1881, which have been granted to the Company as part of its subsidy. Re Can. Pac. Ry. Co., VII, 389. m CARRIERS. !»l CARNAL KNOWLEDGE. Sec Criminal Law^ IX. CARRIERS. I. Cakkiage of Gooos. (a) Pcliver to Carrier. (h) Carrier as irarcliousciiiaii. 11. C AKKIA'.K or lASSENtitKS. ill Limitation ok Liahimty. 1\'. Connecting Carkieks. \'. Liens anu Charges. L Carri.vge of Gouijs. ( (/ 1 / U'liz'cry to Carrier. Admission by Agent.] — Plaintiff sent liy S. a box of g(jods to dcfeiid- ant>' station at \V., to be carried to \. at P. S. saw se\cr;il men \vOrk- inj,' at defendants' freijilu >he(l, and tuld one of tlieni hu liad brought a 1)<>\ for Y. ; the man told him "to linng it in and put it there," and S. put it where lie was told. He got li" receipt. The box was losi. Plain- tiff then went to the station at W. and saw the man, already referred to, who admitted that he got the box, imt could not say what he had dune with it. Held, that whether the goods were to lie carried at tlie risk of tlie con- signor or of the consignee was a qi'.estion for tlie jury, and the Court wi'uld not disturb their verdict. Held, that the athnission of the man, wlioni plaintiff saw, was not r.dniissible as evidence against the defendants, and as it was the only evidence of delivery, the plaintiff sl.ould be non-suited. Young v. Canadian Pacific Raihvay Co.. I, 205. Liability of Carrier — Excuse for Non-Dclivcry — Forfeiture to Crown.] — To a declaration against a carrier fnr niin-tleli\ery, defendants pleaded that tlie goo(ls had, prior to tlie delivery to the carrier, been for- feited to the Crown for noii-|i;iymeiit of customs due. Held, not a valid detence. U'liite \. Can. I'ae. A'y, Co.. \'l, lOo. ( /' ) Carrier as ll'arel'nusenian. Notice of Arrival of Goods — h'ea.ioniihle J'inie.] — The pl.untitT's claim was for the lo^s of gocids ship- jied to him at Linerson over the de- fendants" railway, which were de- stroyed by hre while still in the car. The car arrived at noon, and the station agent immediately gave ver- bid notice to a drayman, according to the usual custom. th;it there was some freight to lie delivered. The plaintiff had been accustnmed to h;'\e his goods delivered by the dray- ii'.in. He was nut of town that after- noon, and received no other notice of the arrival of the goods. The car w:is left standing near the elevator, and was burnetl during the following night. It was -uiiposed the t'lre or- iginated in the furnace of the eleva- tor. Held, that under the circumstances the customary notice to the draym.m was sufficient notice to the plaintiff of the arrival of the goods, and thai a re; sonable time had elapsed for such notice to reach the plaintiff, and for him to remove the goods; that the transitus was ;it an end and the li- .ability of the defendants as common carriers had ceased before the fire took place, and that the evidence did not warrant the finding that the de- fendants had been guilty of negli- gence in leaving the car where they did. and that therefore they were not liable for the loss of the goods in question. Burdett v. Tlie Canadian I'acifie Railteay Co.. X. > II. Carriage of Passengers. Baggage — Liability as IVarehouse- ir.an.] — A Railway Company is li- tt.J CABRIEBS. 06 alili- fur tlic l()>s of a passenger's ur- (Imary ira\cllmg liagKagc, l)Ut not fur siuii articles as \vin;c fnr wliicli tlicy arc lial)le. When goods reniain at tlic station at wliicl. ■/ iiassenger aliglits, but it does not ai)iiear that tlic Rail- way Company has cliarged, or is en- titled to charge, for storage, the Company is not lialile as warehouse- men. McCaffrey v. The CainnUdii Pacific Raiheay Cn., I. ,150. Baggage — Duly of Carrier ami Passeui^er Resl^ectively ut^in\ Arrival at I iesliiiati('ii.\ — i. It is the duty of ,1 R.'iilway Company, in regard to the li.i^'gage of ;i passenger which has r. i'.clicd its tination, to have the hapgage ready for delivery upon the platforr.,. at the usual place of deliv- ery, till the owner, in the exercise of due diligence, can call and receive it; and it is the passenger's duty to call for and receive it witliin a reason- al)le time. If he docs not so call for nnd receive it. it is the ComiKiuy's duty to put it into their l)aggagc room and keep it for him. being li- ahle only as warehousemen. 2. The c|ucstion whether the consignee of goods carried as freight, or a passen- ger taking luggage with him. lias in a particular case applied for the goods or luggage within a reasonable tin.c after their arrival, is a question of fact to be determined in e;ich case from circumstances. t,. Whether it is to be considered ordinarily as a matter of law to lie the duty of the passenger by railway train to call for his luggage before leaving the sta- tion, and whether in case of his fail- ing to do or to make any arrange- ment about it. the Company becames ii;ore!y warehousemen of it. Quccre. .( To an action for losing luggage th.;- Company pleaded as follows: — " For a tenth plea to the said declar- ation the defendants say that they did safely carry the said luggage from the said City of Emerson to the City of Winnipeg, to their station at the said City of Winnipeg, but the plaintilT left the said railway train and said station without calling for his luggage or taking the same, and that after waiting a reasonable time for the plaimitY to call .lud takeaway hi~ lugg.'ige. .-md the pKiintifT not having called within the s;iid time '.or or taken the said luggage, the de- fendants stored the same in the sta- tion baggage room of the defendatUs, which was a reasonably secure place to put and keep the same, and with- out any charge to the plaintiff the defendam- kept .and stored the lug- gage for the jjlaimiff ; and while the luggage was in the li.iggage rooin waiting for the plaintitT to call, the said b.'iggagc room, with .all its con- tents, including the luggage, was burned without any default or negli- gence on the part of the defendants; and the plaintilT did not call for the '-.aid Ingu.-itre until after its destruc- tion by fire as ;ifnres;iid. whereby and for no other cause the said lug- gage became lost to the plaintiff." Held, a good plea. To this plea the plaintiff replied as folbiws: ".Xnd for a third replication to the eighth, ninth and tenth pleas of the defendants, the plaintilT says that on the 2,^rd day of February last past, in com- pany with his sister, of whom he had charge, he left Portland in the Stale of Afaine as a passenger by rail from that City to the City of Winnipeg with the luggage in the declaration mentioned; and the plaintilT travelled i-rntinuotisly from one City to the other; nnd the plaintiff while at the City of Afinneanolis, on the route lie tween Portland and Winnipeg, made ei-nuiries from the baggage master of t'le St. Paul. 'Nrinncapolis & 'Mani- toba Railroad, being one of the rail- roads over which the pl.aintifT was c.'i.rried on his journey, and the plain- tiff wa informed bv-thc said baggage master that his s;iid luggage was not being carried on the same train with himself; and the plaintiff, when he had completed his journey above mentioned, inunediately on his ar- rival at Winnipeg looked in at the door of the baggage car of the train on which lie had travelled, for the purpose of finding his said luggage, am I'? iii 97 CARRIERS. 98 Cillll- v.v\ Stau- troi\i .■nioii ;dk.l i thr 1 the .Uc ho iiiailc tcT nf rail- \va> plain - ptracr as not 1 with en he above IS ar- at the > train >r the Init ilid not see the >ami'. ahhoiiitli ihe interior of tlic car was sutVieicntly clear to allow him to see it if it liad l)icn there; and the plaintitT tlion 1, nked anuind tiie statinn iilatfnrni 111 the inniudiate viemity i>i thu liaR- t;ai,'e car, hut eoiilii nnt see ins said h'liKaKe ; and then the plaintiff, rely- ing on tlie infomiiition received from tlie >aid baKKafje master and nn the result of his said search at Winnipeg station, as above ile>crilved. did nnt ;i|,ply to any otTicer nf iIk- defendants for the said lugijane, but within a reasonable time tlureafler. to wit, nn tile d;iy fnllowing, he made apjilica- tii'ii tn the prni)er nt'ficer nf ihe de- fendants fnr his said UigK-'iKe, l)Ut the --aiiie was wholly destroyeil." Jlrlil, bad nn deiiiurrer. Uroicu V. Tlic Ciuuuliiin I'acHic Raih^'ay Cr.. Ill, 4(j6. Pleading — Dcclarntii^n — Cm-.f tr.irt (if Tort — A:j,rccmcnt lixclud- iiif; l.iahility.] — Pla ntit'f, havini? ^us- taiiied personal injury and Inss nf ba.k'ts'age in a railway accident, ob- t.iiiud leave to proceeil in an action, pmvidtd he decl.ared in contract. His declaration contained the fnllnwing CMUiits: — I & 2. Allegation nf con- tract to carry; breach, that defend- ant (lid not safely carry, but owing to negligence, goods lost, .i, & 4. A!- kgaiiniis of contract to safely and securely carry ; breach, that defend- ants ilid not safely and securely car- ry. Iiiit owing to negligence plaintiff \v;i^ injured. 5 & 6. The same as i & J. without the allegation nf negli- gence. //(•/(/. I. (Overruling Dubuc. J.), that the first four counts were in contract and not in tort. 2. That cfuints I and 2 were in reality the same as 5 & 6, and should therefore be struck out as encumbering the re- C(ird. The defendants pleaded to counts 5 & 6 a condition of the con- tr.'ict by which their liability was re- stricted to $100, and payment into Court of that amount. To this plain- tiff replied negligence within section 24 of The Consolidated Railway Act, 1S79, Jli-lii. that this replication slmuld nnt be struck nut. but if objection- able should be demurred to. Sltaiv V, The (\viiiJian I'acific Riulicay Co.. V. ifjS. SCi' il/iC Pl.t.MUNO, HI. III. Limitation of Li.^mi.iTV. "By Reason o< the Railway. "| — The >tatutnr; limiiatinii of acli<3ns for " damages or injury by reason of the railway." does not apply in an ac- tion, either contract or tort, for dam- ages for non-tleli\ery of goods de- livered to the r.ailway for carnage. H'hitc V. Ciuuulian I'arific Nailivav Co., \'I, 109. .Iiiii sec .S'liiize V. Camuliiin I'licific A'(//7:i'i/y Co., V. KjS. Liability of Carrier — .Ifirer- iiiiHt Limiting Liability — .Wcfili- ^(•)i(C. I — In an action brought for the non-delivery of s.iwn lumber de- livered to defendants at P. to be carried by them to it. defendants p'.eaded a condition indorsed on the shipping bill, ;is follows: "Thai the Coiii|)any will not be re^pf>n>ible for any deficiency in weight of grain, in bags or in bulk, nor for loss or de- ficiency in the weiglit, miniber or measure of lumber, co.il or iron of any kind carried by the car load." The evidence showed that the lum- ber was loaded at P.. and that a por- tion of it was not delivered at B. There was no eviilence as to hnw the loss nccurrcd. IIchL I. That by the statute 42 Vic. c. 9. s. 2;. > s. 4, the defendants were precludeil from setting up the indorsed conditio, 1 when a loss is charged as happening through their oivn negligence 2. That, in the ab- sence of evidence, the non-delivery might be assumed to have ari^eii from misdelivery to some other per>on. or from the actual use of the property by the defendants for their own pur- poses, in which cases the condition -r 99 CERTIORARI. 100 would be no protcctinn. Henry v. Canadum Pacific Uailmay Co., I, 210. IV. Connecting Carrieks. Last Carrier Liable.) - i'laiiuilf dtlivcifd ccriaui guud> m ilit Ijraiid Tiiiiik Kailway iur carnage lu Wiii- nipcg. DclcmJaiils, in llic course nf liaii^il, received llie gduds and were paid irciglu charges over their hue. IJeiciidaiils delivered the gwod.-, al Wiiiiuiieg to a t. aiiage Coiiiiiaiiy lo be delivered to piaiiUill. l)Ut muiuc uf tlieiii were iiul so delivered. Held, defendants hable. Koacli v. LanaJtan i'aatic katli*.'ay Co., 1, 156. V. Liens anu Charges. Connecting Lines— cjiiOiic/ n'lth First Currur — Kinht of Last Car- ney to J-rciaht — Lu-K for l-rcight.\ — When guids are carried by several successive carriers, under a cuntracl made with the first U) carry the gouds the whole disiaiice, the inter- nudiate and last carriers are, in the abs' nee of special conditions, the agents of the tirst, and there is im privity between them and the con- signor or Consignee, ami tlurefore they cannoi claim freight tither by impliicl contract or lien, beyond the amoi.:,i contracted for by the tirst carrier. The lasi carrier may, as agent for the first with whom the contract was made, collect the freight due to the first, eiilier under contract or by as- sertinjT ;i Ten on the goods. Tli'j pam.ilT shipped goods at St. Jr.hn's. (Jmhe,-, by the drand Trunk Railway d., ■•on>;igned to himself at St. Xnrbert, Manitoba, taking- a bill of lading showing the inode of trans- portation by several connecting lines to Winnipeg, and paid the freight in advance. When the plaintiff de- manded the R ods at Winni|)eg. the defendants, who were the last of the c.irriers, clainie(l a lien thereon for clla^ge^ paid by them to intermediate carriers frnm whom tiicy had re- ceived them, and for freight for car- ri,ii;e by their than directed are returned. I. unit V. H'innipeg, II, 225. County Judge or Magistrate] — Xctiees to Justices — Amendment of - luupiisites of — /•"(V//;.:,' of .ItHdavit --:'eudeney of Appeal.] — S.. having been convicted before miigislratts, ci.ik proceedings to api)eal to the •.'oimty Judge, and i>rocured the pa- I trs to be sent to his clerk. After- wards, and I)efore any jiroceeding by ;lie Judge, he had the papers return- ed to the convicting Justices. Upon notice to tile Justices of an applica- tion for eerttorart to be directed to them, lie now moved for the writ Held, I, That the return of the pa- pers to the Jusiices was irregular, and that the eerttorari siiouhl go to the County Judge, lie being the legal custodian of the papers sent to him for the purpo-e of the appeal. 2. That the notice for a certiticc does not appear upon notice of an appli- cation for a summons that it should issue. Notwithstanding the statutory provision, a certiorari may issue where the Justice has n.) jurisdic- tion. Reg. V. Galhraith. VI. 14. 103 CHABGING OBDEB. 104 II. Return. By One of Several Justices. ] _ A return to a writ of certiorari made by (jne or two convicting Justices, provifled they, havinp; tiie record in tlieir custody, and can return it, is a sr.fficient return. Reg. v. Lacom- sicrc, VIII, 302. Sec also Criminal Law, I. CHAMPEBTY. Discussed. I—Facts which do not amount to Champerty. Ruhinsoi:. v. Siitlicrland, IX, igg. CHARGING OBDEB. Style of Petition — Notice of Ri'iidiiig .Iffidiivit.] — A solicitor's pe- tition tor charging order should be intituKd in the matter of the Act. The petition or notice must show up- 1111 wliat material it is grounded. IVishart v. Boitncau, V. 132. Elections _ Prposit by Legisla- tive Ciir.didatc.] — The deposit of $J00 made by M.. a crmdidate at an election for the Legislature of Mani- toba, was paid into Court by the Clerk of the E.xecutive Council un- der a garnishing order issued in a suit against M. This order was afterwards set aside. Afterwards H., who had a judgment against M., applied for a charging order under the provisions of i & 2 Vic. c. no, s. 14. Held, that the money was not within the purview of the statute, and could not be charged. Howe v. Martin, VIII, 533. Costs—Death of Judge -u'lio Heard Cause — Affidavit — Alteration in .Jurat — Style of Cause — Surplus- age.] — A solicitor, having ttxec his costs, presented a petition for a charging order in the original suit under 23 & 24 Vic, c. 127 (Imp.). Several preliminary objections to the petition were taken. Held, that the statute contemplates that the Judge, before whom the cause in which the costs were earn- ed was iieard. should hear the pe- tition; but the Judge being dead, and the cause having been re-heard bc- I)cfore three Judges, of whom the Judge before whom the petition came was one, under these peculiar cir- cumstances, the objection of want of jurisdiction sliould not be sustained. Held, also, that an objection that there was an alteration in tlie jurat of an affidavit filed in suj)port of the petition should be overruled. The rule in equity on this point is not so strict as at common law. .And. in any event, the Court would allow the affidavit to be re-sworn. The petition was in the style of cause of the original suit, ami also, ■' 111 the matter of T. S. K.. a solici- tor." anil " In the matter (^f Imperiid Statute passed in the twenty-third and twenty-fourth years of the reign of Her Majesty Queen Victoria, and chaptered one hundred and twenty- seven." Held, that, a-, the petition was in the proper style of cause of the orig- inal suit, the other two headings, even if unnecessary, might be con- sidered as surplusage. And the pe- tition should not be tlismissed on that ground. The petition showing that other parties were interested, at the re- quest of the petitioner they were or- dered to be served. Leaeoek v. Mc- Laren. VIII, 579, Property Becovered or Preserv- ed— .sV/Zr/ATf' ,/c-/. Imp. Stat., _'3 & -'4 /'/("., e. 127.1 — The i)etitioner had been retained by John Shields, one of the defendants in Lcacock v. Mc- Larcn, which had been brought for the purpose of winding \\\^ the part- nersliip composed of the plaintiff and defendants in that suit, and he had conducted it to the termination of an appeal to the Supreme Court of Can- ada, whose decision was in favor of his client, and resulted in establish- ing his rights as a partner in certain Ifti CLOUD UPON TITLE. 106 tor part- ff and had of an Can- 'or of ihlish- crtain moneys in Court and in certain other assets of the partnership. The otlicr defendants then appealed to the Privy Cfiuncil, but pending that appeal, a se'.ileinent was ; .ved at between the parties without the kncjwiedge of the petitioner (Shields havinj,' n.- taincd another solicitor in his place), by which the moneys in (Viurt were all applied in pay- ment of the debts of the firm. Meantime. John Shields nvrrie^l, and made a settlement on his wife of all his interest in the partnership as- .sets, and the trustee of the setile- tuint, William Shields, the plaintiiT in the suit of Si'lc'lds v. MiLarcn, afterwards connncnced that suit for the purjinse of working out the sel- tlenient of the former suit. In this' latter suit, the old partnership was wciund up. the assets realized, and a diisiderable sum of money was paid into Court. Held, that ilie petitioner was en- titl'-d to a lien on this money for his ■Mipaid costs of the first suit, as he- mp jtroperty preserved within the luianintj of The Solicitnrs' Act. Imp. Stat., 2.^ & 24 Yk., c. 127 but subject to the prior lien of the solicitor for William Shields, notwithstatiding tli;it the money was actually realised ill another suit; and that the fact of his client having parted with his in- terest before the commencement of I he second .suit, was no objection V< hi- claim. Brrric v. H.'i^'itt. L. R. q F.q, I, not followed. Foxon v. Gas- (oiRnc. L. R. Ch. 6^7, distinguish- ed, l.cacock V. McLcrcu. TX. ^gy. .S"(\' also Pu.NCTicK. X\'I, CHATTEL MORTGAGER. Sec Bills of S,\le .and Chattel M0RTG.\GES. CHOSES IN ACTION. Sec Assignments. CHEQUES. See B.XNK.S AND B.VNKIXG. I. CHURCH LANDS. Sale.] — Tru--tecs of a church made an agreement for the purchase (if three lots. In the .•igreenunt they were described a> " Trustees nf the F. C. Church. Winnipeg," but there was no provision in it as to the ap- pointment of successors in the trust, nor were any trusts set otu. The same trustees made a \erbal contract for the sale of an adjoining lot. .All the lots were intended tn be used as a site for a church. Held, that the provisions of C. S. M., c. 50, ai>plied tu the property, and that the tru>tees could not sell save in accordance with the provisions of that -Act. Cuiuniins v. Cmtgrcga- tioiial Chiireli. W. ,^74. Sale. I — On a sale of church lands under R. S. M., c. 20, the congrega- tion or reli.gious body must be noti- fied not only of the fact that a sale has been made, but also of the time at which the Court will be applied to sanction the execution of the deed. Re Methodist Church. MiUiitou. V' 1.^6. CLOUD UPON TITLE. Registration of Deeds — Parties — C'i'.sVjt.] — S. CMn\'eyed Land tu ilie idaintiflf. who registered his convey- ;it,ce. S. afterwards conveyed the <.ime l.'itid to !•>.. who conveyed to l"i) , wliM CKtivevcd to the defeiiilant. //(•/(/. that although the registry shiiwed a gooij title in plaintitT. the defendant's conveyances should be declared to be clouds, and be retnov- ed : that Fo. and Fr. were not neces- sary parties ; that the defendant must pav tlie costs. Blair v. Smith. I, s. m^lf 107 COMMISSION TO TAKE EVIDENCE. 108 COMMISSION TO TAKE EVIDENCE. I. Issuance. II. EXECTTIO.V. in. Suri'KK.-^sio.v. IV. Re.m. Pkopertv Act. I. Issuance. Parties — Expert Evidence— Dis- cretion.] — A commission to examine a party lo the suit or his employee will no": lie "rdcreil, if opposed, no special circumstances being shown. Expert evidence will not be permit- ted to be taken abroad, except under special circumstances. The issuing of a ci)nnnission to take evidence abroatl is in tlie discretion of the Court. 77(1- Washburn & Moen Manufac- turing Co. V. Brooks, II. -t-t. Material on Application.] — Ii is not always necessary, upon an appli- cation for a connnission. lo show the nature of the evidence proposed to be given. Ontario Bank v. Smith. VI, 6oo. Time for Application — Order to Read at the Heariiii; — Orders to E.va)iiine Made before Cause at Is- sue.] — Held, affirming the order of the Referee, that evidence taken abroad under an order may be read at the hearing, althnugh the order docs not state that the evijlence may be so read. The proper time to ob- tain a commission (where the bill is not merely for disco\ery) is after issue. But where, upon notice, or- ders to take evidence abroad had been made before issue — Held, that the depositions would not, on that account, be suppressed ; the proper course was to have ap- pealed against the orders. Grisdale V. Chubhuck, I. 202. II. Execution. Leading Questions, j - - Leading questions appearmg in a foreign connnission may be oljjccted to at the trial, although counsel appeared upon the execut oti of the connnis- sion and made no objection. Mercer V. Eonseea. II, i6'j. Interrogatories or Viva Voce.] — Eriina facie the examination upon a connnission is to be upon interroga- tories. Ave] where an order for a connnission made no provision lor the mode of examination, depositions which had been taken T'/tm X'oce were quashed. Mulli'^an v. White. V, 40. Interrogatories or Viva Voce — H'aiz'cr of IrrCf^ularities.] — Under an order to take evidence on com- mission, the evidence can only be taken on interrogatories unless other- wise ordered. L'nder such ;in order a connnission was issued to take evi- dence z'iz'a z'oee. Held, that the connnission was ir- regular and the depositions were suppressed. That the objection had not been waived by cross-examining the witness after raising the objec- tion and subject to it: nor, by omit- ting to object after tlie commission had been formally returned, upon an application to send it back for a pro- per return, or upon a further appli- cation to extend the time for the re- turn of the commission. Per Bain. J. — Waiver, as a general rule, is doing something after an ir- regularity committed, when the irre- gularity might h.ive been corrected before such act was done. It may consist, too, of lying by. and allow- ing the other party to take a fresh step in tlie case. Watts v. .Inder- son. V, 2Q1. InteiTOgatories or Viva Voce — Waiver of Irregularities.] — Where the order for a commission to take evidence is silent as to the mode of examinati(i,i. the evidence must be taken on interrogatories, but if the commission be issued to take the evi- dence viva I'oce. tliis is a mere irre- gularity which may be waived by any 109 CONCEALMENT OF GOODS. 110 participation in the proceedings un- der it. Thompson v. Scguin, VIII, 79. Irregularities — Foreign Evid- ence Taken by Master — Form of Depositions — Not Read Oier.] — By coiiscnt the Master attended in Montreal for tlie purpose of taking certain evidence. The evidence "was to be used on the reference (saving all just exceptions^ . in tlie same manner as if said evidence had been taken under a commission." Tlie depositions were styled in the cause (^liort form) and then proceeded: — ■■,\. B., sworn," with question anil answers following. The answers were not stated to have been made by any one. and there were no signa- tures either of witnesses or exainin- rr. L'pnn appeal from the Master's report, he certified, at the request of the Judge, that the evidence had been taken and afterwards transcribed by a shorthand reporter, but that it had not been read over to the witnesses. Per Killam, J. — Without consider- ing whether there is any jus'ification for departing from the old practice in the Master's office, it would cer- tainly lie improper to receive anv evidence, as that taken in Montreal, upon less proof of its being correct- ly taken than would be required if there had been an order appointing the Master a special examiner for the purpose. Le^eis v. Georgeson, \'I. Irregularities — Oath of Com- missioner — .'[fanner of Taking De- pf'sitions — Xarrative Form.] — V\ here evidence, in a cause pending in a Court of Manitoba, is taken un- der a foreign com.mission. the com- n'i^^siiiner must, before entering on his duties, take an o.nth for the due dischiTge thereof, unless it is ex- pressly dispensed with bv the order directing the issue of the commis- sion, or unless the connnission is ad- dressed to a Judge of a foreign Court, or to the foreign Court itself. The oath must be taken before some person deriving his authority to take such oaths from the laws of .Manitoba. A foreign conmiission directed the ccinmissioner to reduce the ques- tions and answers to writing. He trok down the evidence of some of the witnesses in narrative form. Held, a fatal objection. Gendron v. Manitoba Milling Co.. VII, 484. III. SlTPKEPSION. ByReferee.] — In an interpleader i<-st'^ th.' i)laintiff obt.iined a Judge's order directing the issue of a com- irission to take evidence in a foreign cotmtry. The evidence was taken, and on the return of the commi.ssion the defendant uToved before the Re- feree to suppress it. Held, that the Referee has no jur- isflictinn to set aside ;i fudge's order, and he cannot do it indirectly by sup- Iiressing the comnn'ssir)n. Per Killam. J. — The objectinn can oidy be raised in showing cause to the sinnmons for an order directing the commission, or at the trial as an objection to thr admissibility of the ev'd.'nce. Thompsn v, Ses,uin. VIII, 79. And see Supra, II. IV. Rkal Property .Xct. Commission.]— The Court has no power to isi^uc a foreign commission to take evidence unon an issue di- rected under The Real Property Act. Grant v. Hnnter. VI, 610. COMMON COUNTS. See Pi.E.\niN(;, II. CONCEALMENT OF GOODS. See Crimin.xl Law, IX. 'f 111 CONSTITUTIONAL LAW. 112 CONFESSION. Sec Evidence, II. CONFIDENTIAL RELATIONS. Sec Fraudulent Convevaxces, V. CONSTITUTIONAL LAW. I. Fundamental La\\s. ir. Judicial Poweks. III. Legislative Powers. I. FuXDAMENTAL LaW.S of ^fAXI- Ton.\. Transfei' of Property.] _ Tlie laws ,is to transfer of property prior to the incorporation of this territory with Canada were the laws which existed in linpland at the date of the charter of the Hudson's Bay Co., 2i)d of May. 1670. so far as such laws were ;ipplicahle to the condition of the Cduntry. The Statute (if Uses was in force. The Statute of Enroll- ments (2- Hen. VIII, c. 16,) was not. The Statute of Frauds was not in force, not having hcen passed un- til after the date of the charter. A mere vcrhal hargain anil sale of lands, therefore, was siit'ficient to pass the title hotli at law and at equity, .\rticle 5,^ of the enactments of the Council of Assinil)i)ia, of the nth .-Vpril, iSfij, did not affect the laws of property, hut applied only to the regulation of the proceedings of the Court, An agreement for the transfer of land assumicd from the actions of the parties, apart from anv direct evidence of its existence. Sin- clair V. Mi(lli;^aii. Ill, 481. Law of Descent.]— .SVr Re Tait IX. 617. Introduction of Laws of Eng- land.] — The laws in force in Mani- tcha have been as follows — Up to nth April, 1862, the law of England, at the date of the Hud^on's Bay CiJ.'s charter. On nth .•\pril, 1862, the law (if England at the date of lier -Majesty's accession was intro- duced. On 7th January. 1864, the law (jf England, as it stood at that date, was declared to be the law of .Assiniboia, Keating v, Moiscs, II, 47. Introduction of Laws of Eng- land.]— The laws of England a> they existed at the date of the charter of the Mudson's Bay Co.. so far as ap- plicable, fiii.ned the body (if laws in force in this territory up to the .\s- -inihoin Ordinance of nth .-Xpril, l8()2. Per Taylor, C, J, (aftirming Kil- 1am, J.), — The Ordinances of nth .April, 1862, and 7th January, 1864. were limited to regulating the pro- ciedings of the Court, and did not introduce the general laws of Eng- I.-iikI ( Diibuc, J., dubitantc). Keat- iii,!^ V, Mdises. 2 M. E. R. 47, not fol- loweil. I'er Tayl(;r. C. J. — Persons entitl- ed, under the H.B.Co., to esiates less ilian (.'States in fee simple, are entitled to h<'i\-e such titles confirmed, but are not as of right entitled to a grant from the Crown of a larger estate, Sinclair v. Mulligan. V, 17. Statutes.] —3 & 4 Anne. c. 9. s. i. ei!;ililing indorsees of notes to sue !he maker or indorser, was inlro- (hiced into Manitcba by .,8 \'ic. (Man.), c. 12. The .Act. .54 Vic. (!).). c. 3, enabling Banks to dis- crjimt promissory notes, etc., implied that notes were negotiable. Mer- chants' Hani: v. .1/((/r'i'y, \'l. 467. .S"iv also De.scext, II, JunifLVL Powers. Hashing Criminal Procedure Con^'iction — Jurisdiction Judge — Pull Court.] 113 of a Single -Held, fob 113 CONSTITUTIONAL LAW. 114 luuing Kcgina v. Bcale, ii M. R. 44S, that an applictioii to quasli a anviction even under a Provincial StiUute must be made to the Full III. Legislative Powers. (a) I >o mi 111 I III. {b) Provincial. (a) Dominion. Plenary Powers.]— To the extent uf the powers conferred upon it the JJoniinion Parliament exercises not delegated but plenary powers of legislation. Reg. v. Rid, II, 321. Railway Crossings.] — The Dom- ii:inii Parliament has power to pro- \idc that no Provincial railway shall cross a Dominion railway without making application to the Railway t'onimittee of the Privv Council lor Canada. C. P. R. v. X'. P. & M. A'., \'. 301. Evidence.] — Certain provisions of ;ui .\ct uf the D'jminion Parliament (40 \'ic., c. 17, s. 2, S-S.4.) for the reception in evidence of certified copies and records in the Dominion Lands Office are ultra znrcs. so far a.-- they can be considered to apply to suits merely for the cancellation as clouds upon title of conveyances (riot being letters patent irnm the Crown) registered tinder The Lands Registration .Vet. McKilligun v. Macliar, IIT, 418. (/') Provincial. Game Laws.] — The Provincial -Statute. 46 & 4" \'ic., c. IQ. as amended by 47 Vic. c. 10. s. 25, s-s. (g). regulating the killing and pos- Fc^sion of game at certain seasons of the year are intra vires, being with- in those clauses of the B. X. .\, Act relating to " Property and Civil Rights," and " Matters of a merely local or private nature." The pro- vij-ion that conviction for offences against the statute should not be re- movable by certiorari is also intra vires. Reg. v. Robertson, III. C13. Interest upon Taxes — Retrosf'cc- tivc Statutes.]— By the Act of 18S6, " In cities a rate of f per cent, at the end of each niuuth shall be added upon overdue taxes, die same to commence on the ist day of January, from and after the year in which the rate shall have been levied." By the Act of 1888 (.May), the provision of 1886 was repealed, and the following substituted: "Upon all taxes re- niaininp; due and unpaid on the 31st Deceuioer. there shall be added a rale of 'i per cent. i)er month at the beginning of each month thereafier." Certain taxes having been due for the years 1885. 1886 and 1887— Held. I. That the statutes were not retrospective: that no percentage could be added to the 1885 taxes; that none could lie acU'ed under the 1SS6 statute after its repeal in May, 1888: and none under the 1S88 stat- lUe until after the following 31SI of December. 2. That, viewing the \>hole statute, the iiercentage was, in reality, imerest, and so ultra lires of the Legislature. Bain, J. (ariirmitig Taylor, C. J., Killam, J., dissenting), founded his opinion on the fact that the interest exceeded 6 per cent, per amuim. Scliulta V. City of ll'iiniiheg. \"I. 35. Interest upon Taxes.] — A I'm- \incial Statute provided t]i;ii all parties paying taxes prior to a cer- tain date should be entitled tu a re- duction of ten per cent., and that tlierc should be added t 1 ;dl taxes ui-|iaid upon a certain later date a sum of ten per cent. //.•/(/. I. (following Scliultc V. iriiniipeg, 6 M.R. 33), that, viewing the whole statute, the amount to lie added wa<, in reality, interest, and as tiie provision was ultra vires, in- terest at six per cent, could not be 115 CONSTITUTIONAL LAW, I19 charged. 2. That the provision as to rebate was intra vires. Mordcn V. South Duffcrin, VI, 515. Bankruptcy.] — A local statute eiu'icted that certain conveyances should be fraudulent against credi- tors; provided for voluntary assign- ments for the benctit of creditors ; and declared that the assignee should liave the exclusive right to sue for the rescission of such conveyance. Held, that the statute was intra vires of the Legislature. Stevens v. McArtliur, VI, 496. Assignment for Benefit of Creditors.]— The section ui the Act declaring certain conveyances fraud- ulent against creditors may be treat- ed, apart frcm the other provisions of the statute, as an independent en- actment, and not, therefore, ultra Z'ires by reason only of its associa- tion with other statutory i)rovisions, SleMiens v. Me.lrthur. VI, 496, Liquor Licenses.] _ Section 134, Liquor License Act, R. S. M., c. 90, providing that " If any hotel-keeper receive in payment or as a pledge for any liquor suiipiied in or from his licensed premises anything except current money or the debtor's own checpie nn a hank or hanker, he shall for each such tiffence be liable to a penalty of twenty dollars, and in de- fault of payment to one month's im- prisonment : the person to whom anything given as a pledge, as afore- said, belongs may recover the same or value thereof, in any Court of competent jurisdiction, notwithstand- ing such pledge. No hotel-keeper shall receive payment in advance for any liquor to be supplied, and the amount of any payment so made in advance may be recovered, notwith- standing that any liquor may have been supplied subsccpiently to such •~-.ynicnt (52 Vic, c. 15. s. 69,') is .'n; vif-es of the Legislature. Beu- ... . ,-. VeKay. IX, 156. •. :-jupr Licenses — Total Proluhi- / 01, ] -_ It is ultra z'ires of a Pro- ':.v .1 Legislature to empower a n!ii:iK:;pality to pass by-laws which have the effect of prohibiting the sale of intoxicating liquors in its terri- tory, at least to any greater extent than such sale was prohibited in the case of liuson v. South Nonvich, 19 A. R, 34,3; 24 S. C. R. 145, viz.: small retail sales which could be for- bidden under the police powers pro- per to be committed to luunicipal bodies without interfering with trade and connnerce. Under section 58 of The Liquor License Act, R. S. M., c. 90, the de- fendant numicipality passed a by- law forbidding the receiving of any money for a license, and under the same section and section 94 tlie com- missioners are forbidden to grant a license without evidence that the projier fees have been paid, whilst other sections of the Act prohibit the sale of liquors without such license having been obtained. //(■/(/, that section 58, taken along with the other sections referred to, nmst be construed as an attempt to confer upon nuinicipalities the power to totally ])rohibit the li(|uor traffic within its boundaries, and that the by-law in question should l)e quash- ed. In re Prohibitory Liquor La'i's, J4 S. C, R. t/O, followed, Crothers V. Rural Munieipality of Louise, X, 5-23- Law Stamps.] — The imposition of a fee of $12 in stamps upon filing a jury notice is ultra vires. Pluinuier Jl'agon Co. V. IVilson, III, 68. Law Stamps. ]_Since the Act, 40 \'ic., c. 50. the statutes relating to stamps upon legal proceedings arc no longer ultra vires. The imposi- tion of f(_'cs by law stamps is un- doubtedly an indirect tax. Under s-s, 2 of section 02 of The B. N. A. .Net, the Provincial Legislature has not the p? to are nposi- iin- Umlcr N. A. has lax ill pcn- The rc. 4') within ()2 f S!iitnti.\ — .\ I'rovincial Statute jim- \ided that "All duties and fees of of- fice payahlc in law stamps on any Mjarch, filing, pleading in virtue of any statute, rule or order, iiiiw iir hereafter in force, are here- by declared to be a direct tax and duty imposed upon the party direct- ed i I pay or paying the same, in or- der ti> tile raising of a revenue fur lY'ivincial purpuses, and shall n U be in any way taxable or reco\erabIe as eii^ts by the said party from any (>tber party or person what>oe'\er." Ilrhi. that the Act was intra fires at the Legislature. Crti'ii'orJ v. lUiftirld, V. 121. Bridge over Navigable Waters.] — I'y an .\ct nf the Legislature of Manitoba. 43 Vic. c. 41. the Bran- don Bridge Co. was incorporated and einpii wered to build a l)ric:ge acros le .\ssiiiiboine river; and. 1)V an- mlier Act. 45 Vic. c. 33. incorpora'- ing the City of Br;indon, jiower was given to tlie mayor and Council Xo purchase any bridge built, or beintr limit, within the City. On an appli- cati' n by an adjoining land nwner f'lr a mandamus to compel the City to purchase the bridge — llrhl. I. The Act authorizing the bin Ming of the bridge was idtra vires iif tlie local legislature. 2. That the title of the Bridge Company was no: viK'li as would be forced upon an un- wJling imrchaser. A'c' Brandon I'ndiiC H. 14. Corporations.]— It is within the !egi>lati\e authority of the Legisla- ture of Manitoba to incorporate a C'lHTpany for the purposes of " doing tile business of lake and river trans- rnriation of passengers and goods u thin the Province of Manitoba by -:eamer or other vessels, the employ- iveiit of tugs and barges for all pur- p ses of their ordinary use. and the Inlying and selling of ships, vessels and materials, the cutting of logs, viukI and timber maiiufaciure. and dressing of lumber. lath, shingles ;ind other forest pre ducts, the sale and transportation of same, the working of timber limits in connec- tmn therewith, the catching, curing, transportatinn and dealing in fish and fish products and supplies for fishing business, dealing and trading in gen- er;il merchandise." Such a Company may be incorpor- ated by the Lieutenant-(iovernor un- der C. .S. M.. c (). s. 226. anil is within the meaning of " trading comiiaiiy." as defined b»' section 2, s-s. ((•) of The V.'indirig-L'p .Act. Section 5. s-s. ( c ) of The Wind- irg-l'p .Act. is intra fires of the I'.'irliament of Canad;i. A'(' Lake U'innif'ei^ 'transportation Lumber & Tradin}^ Co.. VII. 233. Taxation— /,,;)/(/ 0:ened by Can- ada. — The Pro\incial Legislature has power to provide for the imjiosi- tion of taxation upon individuals by reference to the valu-es of lands oc- cupied by them even though owned bv Can.'ida. Munieif'alitv of South X or folk V. Jl'arreu. \'II1.' 4S1. Criminal Procedure.] — See Supra, II. VI. Crwss Refere.ncks. See Bills .\.\ti Notes, IV. See Crimi.nal Law. I. VII. IX. See Descent. See St.vtutes. IT. CONSTRUCTION OF STATUTES. See Stati;tes. I. II. CONTEMPT. Criticism of Judicial Acts.] — Remarks on the extent to which 119 CONTRACTS. 120 judicial acts may be criticised. Reg. V. Ro'ivc T. W'.', 309. CONTRACTS. I. Formal Reqlisites. II. Lec;.\i.ity of Object and Con- SIDEn.\TION. III. OiNSTKlTTHiN- AND OPERATION. IV. RECTIFlLATtfiV. V. Re.scissiox. VI. Pkriormanci; and Breach. VII. AiTidNs luu Breach. I. FiiRMAL ReQVISITES. Uncertainty.] — Tho defendant gave to tlic plaintiff tlie fullowin.c; letter: "Dear Sir. — If ynu lend to T. B. R., of this City, the sum of $4,000. on lot 85. iti block 4. . . . I will guarantee to take the property at any time for the amount of the niiiriRage." II rid. I. That the coniraet was not in, certain l)ecause the terms of the loan were nnt agreed to. If the plaintiff and T. B. R. agreed upon the terms without cnllusion as against the defendant, he would be bound, J. The contract was not lacking in mutuality because the time of performance was left to the option of the plaintifT. MiCaffrry v. Gcr- ric. III. 350. Uncertainty.] — Defendant X. agreed with the plaintiff as follows: " I hereby agree to sell to you 1.S50 shares in the QuWppelk' \'alley F. Co.'s stock for the sum of $13,000, you to pay $10,000 to the Bank of Coninvrcc. payments of the $13,000 to be made as follows: $3,000 by in- dorsed note at four months. $3,000 by note at one year's date. $3,000 by note at two year's date, at 7 per cent., the last-named notes to be secured by a portion of the stock. Defend- ant X. had at this time 2.030 shares luider pledge to the Baid< of C, and there was little doubt that the 1.850 agreed to lie sold were under.stood to be a portion of these 2.050. Almost innnediately after making this agree- ment X. sold the shares to his co-de- fendants. Upon a bill for specific jierformance — Held, I, That the contract was tcio indefinite in not sut'ficiently showing viiat particular shares were to be sold. 2. And was uncertain as to the indorsement of the notes. .?. .■\nd in not providing what portion of the shares was to form the security for the notes. 4. The shares coidd not be transferred without the sanc- tion of the directors; and t!ie Court will not direct a transfer when it has no power to enforce its complete ex- ecution. Parol evidence to explain any of these points or show the understand- ing of the parties would be admis- sible. Bell V. XortlKcood. III. 314. Acceptance of Offer.] — In Octo ber, iSSo, the defendant gave tn plaintiffs' agent an order fnr a bind- er, for wbicti lu' agreed to ])ay $i()0 by two promissory notes. Tlie nrder contained a proviso as follows: "Thi> order is not binding on the Patter- son & Bro. Co. (Limited) until re- ceived and ratified by them at Win- iiilieg." The plaintiffs entered the order in their buoks at Winnipeg ;i- being accepted, but did not commum eate their acceptance to the defend- ant until August. i8qo. when they wrote him that a binder was ready for him. Before receiving thi^ letter 'he defendant had bought another ! binder, and refused to accept one i from plaintiffs or to give the n ite-^. j In an action for damages f ir non- acceptance — Held, that the defendant was not liable, as the idaintiffs did not com- ' nnmicate their acceptance of the or- ' dcr to him within a reasonable time. and he was entitled to assume that they did not intend to accept. The I'dttersoii & Bro. Co. v. Delormc. I VII, 594- m \-l\ Ih K] W] 121 CONTRACTS. 122 11)0 by inlt !■ -Thi. \-\ltLr rc- (1 tlU' tllU'.Ill .tend tlu\ rcaiiv innli' r tt dlV.' n ite- as ii'it coni- Ww ..;■- time. > tha; The Completed Contract.] — The de- olaraiiiiii alleged that " in considera- tifiii that the plaintitt wmild haul fur tile deleiidaiit the hloeks that would be re(|uired tor paving." etc., " the defendant promised to allow and per- mit the plaintiff to haul all the said Mocks and to pay liini therefor." etc. iTlien fnllowed allegations of partial )crformance of the work). " Vet 1 the ]ilai Upon defendant refused to allow tin ntiff to haul the reniainig por ;i>.n of the said blocks," etc. (Kimirrer — //i7(/, that the count disclosed a (.■f.inpleted agreement, a nd not merely ,in nn;iccepted dffer of the defendant. ri77(-/( V. McLcinnin, III, 383. 11 l.KC.VLITV OF OnjKCT .AND CON- SIDERATION'. Sale of Goods with Intent to Smuggle.] — Although it is illegal !'■ MiTport whiskey into the X. W. Territories, except by permission of the Lieuteiiant-fiovernor, yet a con- tract made in ^^anitoba for the >ale and purchase of whiskey is not il- legal, even aithciugh the vendor was ;i\v:;re that the purchaser intended to -iiumgle it into the Territories, ll>hiii " in his answer (Kil- 1am. J., dissenting). Where land has been voluntarily conveyed to the grantee to bold it for some illegal jiurpose. and that purpose has not been carried out, the graiUor is not preveiued from takin.g proceedings to recover back the land ( Killam. J., dissenting). .^lullii^an v. Ilnbluinl, Y, 225. Fraud upon Creditors.] — .\gree- ment between one creditor and the debtor, to purchase debtor's stock from assignee, discussed. Tonssaiut V. 'riioiiipsoii. III. 504; IV. 400. Uninspected Gas Meter. A statute, after reciting that it was ex- pedient " that the measurement of gas sold and supplied .... should l)j regulated by one uniform standard and that all gas meters should be inspected and stamped," provided that is should " not be lawful to fix for use any ,gas meter which has not been veri- fied or stamped as hereinafter pro- vided," and imposed a penalty for so doing. In an action by a Gas Com- pany for the price of ,gas supplied through an uninspected and un- stamped meter — //('/(/. that there must be implied from the prohibition against fixing a meter for use, a prohibition against supplying gas through it, and that the plaintiff could not recover. The n> m Manitoba Electric and Co. V. Ccrric, IV, 210. CONTRACTS. 124 das Light Measuring Grain in Bags.] — Till- plaiiitirf ciiiunicud with ilio ik'- fciKlaiU t(j tlircsh his grain ai a price pur hiishcl. :\\. the threshing tlic thrcsliL'd grain was run into hags, each supposed to contain two Imsli- cls, ami the quantity was estimated by the number of liags. It was nut ascertained eillier liy measuring with a Dutninion Stanihird Measure or by weighing. Secticn Ji of tlie Weights and Measures Act, R.S.C.. c. 104, i)rovi(les that " Every con- tract. Iiargain .... or deaUng jnade or had in Canada in respect i:if any work wliicli has been or is to be done or agreed for l)y weight or measure, shall be deemed to be made .'ind had according to one of the Dominion weights or measures ascertained liy this .\ct and if not so made or had shall be void, except wdien made ac- cording to the metric system." Held, that under this agreement the ])lainliff could not recover any- thing for the work he had done. Manitoba Electric and Gas Lii^bt Co. V. Gcrric, 4 M, R. 210, followed. Macdonald v. C(>rri;.^al. IX. .284. Weights and Measui'es Act — Plcadiii}^.] — At the trial of an ac- tion in the County Court to recover the price of a quantity of lime, the defendant objected that the plaiu- tifT> had not shown that the lime was measured by ;i standard measure ac- C(.)rding to The Dominion Weights and Measures Act, and tliat they could not recover without showing this. The defendant had not in his disi)utc note set up the provisions of this Act or claimed the benefit of it or alluded to it in any way. //('/(/, on appeal to the Queen's Bench, that the defendant could not avail himself of the provisions of the Act as against tiie plaintiffs' claim without h.'iving set up such defence in his dispute note, and the Court would not interfere with the discre- tion of the Counlv Court Judge in refusing to allow the defendant's dis- pute note to be amended for the pur- |iose of selling ui) such defence. Such a defence based on a statute nui>t be >et up in the dispute note, or the defemlant cannot avail him self of it. Illegality, whether it arises on a statiue or at common law. must be pleaded, and it makes no differeme whether the illegality appears from the pl;iintit'fs" pmofs or otherwise, and the omis of proving it rests uj)- on ihe defend.'int. Ilaiibttry \. Cliiinihcrs. X. \()~. Restraint of Trade.] — A covcn- ;ml noi to " h;indle " a certain clas- of goods during a specified term of vc.'irs is \oid. ;is being in undue re- straint of trade, there being no limi- i.'ition of territory. The language was also held to l)e too vague and uncertain to enable the Court to or- der an injunction against the de- fendant in the terius of the covenant Ihiillcy V. Bcntlcx, XII. 436. III. CoXSTUfCTIOX -XNl) Ol'KR.MIOX {a) General Rules of Construc- tion. (b) Parties. (c) Conditions. ((/) Pefendent aiud Independ- ent. {a) General Rules of Construction. Guaranty or Agreement to Guarantee.]— The proper construc- tion of the agreement was that it provided for the execution of some further instrument, and was not one of present gu;iranty of the notes to be given in futuro. and as this was not an action for neglect or refusal to enter into a guaranty, the plain- tiffs were not entitled to a verdict or to have the judgmicnt in favor of the defendants set aside to enable them to change the form of the claim. Syhrstcr v. Porter. XI. 90. Ambiguous Phrase — Interpre- tation by Subsequent Conduct.] — 125 CONTRACTS. ise to jiruc- a'. i'. ^()I11C It (ine \\ :i- plain- lid or of tlic them claim. 'rprc- t.\ - The lepai ct1f(?ct of a (locinnom can- not l)c altered liy the >iil)si'(|iietU d in- duct of the parties, hut it is not iin- nasonahie to look at that for an ex- planation of an anihiRuous phrase. I'ollnck oil Cmitnifts. p. 431. .1/c- ('/di/.t,' V. I'liilli/'s. X, (x^4. Whole Contract must be Con- sidered.] — irinthi V. I'hair. Xll. .S'lV CoKPOKATIONS, V, VI. (b) Parties. Description Added to Signature. | — .A contract was e.\pre>sed 10 he made Ijctwcen " I)., of the City nf Toronto, of the first jiart. and 11.. Siipcrintendent, of the Ciiy of W'in- iiilug, .Manitoha, of the second part." It wcin on to say: "The said i)arty nl the first part, in consideration of tile agreement of the said parly nf the second part hereinafter cmUain- c(l, herehy aRrees to l)uild. construci, and set up complete in the City of \\'iimi()cg. gas plant of wrought and cast iron for a gas works there, as ful Then, after a detailed statement of tlie articles to he sup- plied, " In consideration of the agreement herein set forth and stipu- lated to he performed hy the par;y (if the first pan, the said party of the second part agrees to pay to the said parly of the first part the ful! sum of S:-',300. (or such iron gas plant as lureinhcfore descrilied. to he paid as follows." and then the time and mode of payment arc set out. H. ap])end- ed to his signature the words; " Superintendent for P.uilding (ias Works at Winnipeg for W. Merrick, of Oswego, X. v., and others." Held, that H. was personally li- ahlc upon the contract. l^"isi v. h'ollcy. I. 61. (c) Conditions. Statement of Loss to be Deliv- ered. | — This was an action for the recovery of $2,000 handed to tlie de- fendants to he sent hy express to the plaintififs' agent at W'awanesa. The money package never reached the iiands of tlie piaintilTs' agent, al- tlinugii he signeil a rL-ci'ip; fop it in the office of (lefcndaiUs at W'awa- nesa. Tin- defendants' undertaking on receipt of the mcmey was that it should he forwarded siihject to cer- tain conditions, one of which was that defendants should not be lial)le for any claim of ;iny nature whal- iver arising out of the receipt of the property descrihed, unless such claim >l.ould he presenteil in writing with- in 60 days 'rom the d.nte of the loss or dam;ige. in a siatem.in to which a copy of the contract should \)v an- nexed. l''laintit^"s presented their claim m writing within the time limited, hut did not show that a copy of the con- tract was amicxed to tlieir st:itemeiU of claim. //('/(/ (Killam, J., dissenting), that the want of this co])y was no har to the pl.-iintilTs" right to recover. I'rr Bain, J. — The claim in this action was not one for either loss or damage, and therefore not of the kind referred to in the condition. /'(•/• Taylor. C. J. — The case of Kicluinlsnii V. Caiuuiii U'rst l-'ann- crs' /iisuraiicr Co.. 10 I'. C. C. P. 4,^0. is authority to show that the annexing of the copy of the contract was not a condition precedent to the plaintiffs' right to recover. /'(•'■ Killam. J. — The furnishing such copy w;is clearly a condition precedent to the iilaintilT^' right to recoser. and as no copy ni the con- tract was annexed to tin.' -t:itement of claim as required, the plaintiffs had failed to prove their case. Ricli- ards'in v. Canada U'rst J'aniirrs' Iii- siiraiirr Cc. lO L'. C. C. P. 4,^0. dis- tinguished. ( Re\ersed on ,'ippcal to S. C. Can.) Martin v. Xorthcrn Pa- cific Express Ci\. X, ^^1'^. Property to be Reconveyed. ] — Lands were conveyed t^ trustees hy a debtor under an .-.grcemi'nt hy which in a certain e\entuality it would he aiiplie.l in payment of his ('ehts. The e\entuality did not hap- pui : and. prior to reconveyance the creditors sued. i w CONTRACTS. 128 llfltl, tliat at iiin>i tlic (lelitiir was fiitillcil to stay pruci'eilmgs until tlif laiul was ri'i-niivcycd. ll'liitlit v. I 'hair. XII. ijj. ((/) / irl^ciidnit mill Indrpcndcnt. Dependent. I — l'Iaini:ff agreed with (Ickiidaiit. tlu- i)rcsi(liiit nf a Coiiii)aiiy, t(i i)rovidi', williiii a limit- ed tiine. $5,000, wliic'li \\v was tn use for tlK' piircliasc of suii|)lit.'s, and was to arrauKc for fiirtliur funds necis- nary 10 carry on tlif Imsincss of tlie Company; lie was to pay cUhts ow- inp; liy the Comp.uiy and to Ki\e de- fiiidam a mortgage for $7,000. I )c- friidani, on the other hatid, imder- tcok to have all the stock in the Company transferred to the plaintit'f, not later than 1st December, 1800, and in case of liis failure to do so, to pay hack any moneys advanced 1)y ])].'iinlil'f for paying off dehts of the Comi)any, and for the purpose of carrying on the Company's business. The stc)ck not having been transfer- rc (1, the plaimit'f suetl to recover back moneys advaticed l)y him. Held, that the agreement was nni- tual, and that the plaintiff, not hav- ing fully performed his part of tlie agreement, could not compel per- formance by the defendant. U'l'ods V. Miitlu'son. Vlir, 158. Independent. I— To a declaration on an agreemeiU, under seal, for tlie purchase by the defendant of a sep- arator, for which he wa.^ to pay $,^00 cash and to give three promissory notes, the defendant i)leadcil thai in cniisideratioti of his entering iiuo that agreement, the plaintiffs agreed to purchase from him a second-hand separator for $J00, tlie $200 to be credited on the first note falling due; that he delivered the second-hand machine, etc. Tlie defendant also filed a counter-claim setting up a similar state of facts, and claiming dam;igcs for breach of agreement in not applying the purchase money in payment of the note. The plaintiffs replied to these pleas and counter- claim that the agreement set up by the defendant was not under seal. On demurrer — //(•/(/, that the agreement set up in the |)leas was an indepemleiit col- lateral agreement, ami the pleas were, or amounted to, pleas of ac- cord and satisfaction, IfrlJ, also, that the agreement set up in the counter-claim was an inde- pendent collateral agreement, for a breach of which damages could be claimed. Case v, l.iiird. VIII, J04. .hid SCi CoVEN.\NTS, I. IV. Ri;< Tiric.vTioN. Mistake. I — Unilateral mistake not ix water tanks, payniciit to lit- mricio wii-kly to tlu- ixiciit of fifty \)vr cfiit. of tlii' value ot the work tlonc, <>ii I'Stimati's to he nia-., etc. J, the defendant, after the n:Ic and delivery of the horse was c ni|)lete, sent to the ])laintiff a paiier v'.'-rded as follows: "1 certify tliat the horse. Pride of Oxford, etc., has been an average foa'-gctter while in my possession, hut what he will do I caiuidt say, under other manage- ment." signed hy himself. Counsel for the defendant contend- dl that this was a warranty, and that thr plaintifif's rights were limited to wl'.atevcr he could claim under it; tl'.at there was no warranty as to soundness ; and that evidence could not be received of any warranty or mi-represent;ition f)utside of the wnlleii warr.iniy deluered. 'i"he Judge fiiuinl im the evidence ill favnr of plaiiitilT; and — //.•/i/, that all the circumstances Cdiiiir.-ted with the sale could he in- (piin(l into and that the evidence fully justified the conclusion that the defendant had heen guilty of fraud- ulent ciiiicealment of the disease fmm which the horse was then suf- fering, .iiicl frmn which he died a few iniiiitlis .afterwards; aUo that the lil.iintit'f was entitled to have his contract re-cinded. ami to a decree as asked for in the prayer of the hill. /'(•(TV V. /'(•(■/,•, 14 .\pp. ("as. ,^,^7, and Riili^rurr V. Iliinl. jo Cli. I). 1. fol- lowed. /i'(((/(/ V. McLiiiighliii. \. 75. Misrepresentation as a Ground for Rescission — /^c/(/.v — U'dirrr.] — Ill an ;u-tii>n u\u>u a note given for the purchase nf ,1 machine, the de- fi ndant (ileadeil thai he purchased n|)iin the plaimitT's false represent;i- ti(jn of the age of the machine. He learned the true ;ige <>. and long afterwards paid two of the notes originally given and reneweil others with the idea, as he said, of pinting off Doll until he could secure further evidence of the fraud, and tliat restitution could not he made if the sale were rescinded. Ilcld. following Campbell v. l-'cn:- ing. I A. & E. 40: Sharplcy v. Loutli and Juist Coa.'st Railzeay Co.. 2 Ch. D. 663. and Morrlsini v. The Uni- 'ecr.sal .Marine Insurance C(K, L. R. S F.K. ig;. that the defendant had waived his right to rescind the con- 133 CONTRIBUTION. 134 due Tl;c .-SLMUa- COll- jiidaii;. itc in 11(1 S.. l^ilK■^^. (if UK' _'nc\vi.'i! aid. •■•i secure 1(1, a-'l iia(U' ii tract for inisreprL'Sciitation. and that the plaintifT was entitled to a verdict for the ainounl of the note and in- terest. //.'/(/, also, /rr Killani. J., i. The evidence liefeire the Court standing by itself might seem to warrant the gr;iniing of relief to the defendant en the ground that W. F. Doll had fraudulently obtained a larger sum for the shares conveyed to the de- fendant than he was entitled to, and tliat the idainiiff was (inly the Imld- i.r in trust for him. and on the unMUiid (if failure of consideration for a detinite portion of the $6,000 of notes, following Beck' v. I\\iiiti'n>- wicc. ,^ K. (& J. 242: Imt. a-< no case for relief on that ground liad been .set up in the statement of defence or at the trial, it would not l)e pro- per to give effect to it now. or to al- low any amendment of the pleadings at this stage, as the plaintitT might have made her case stronger at the trial if she had been called upon to do so. 2. The evidence showed the .ale of the shares en bloc to three parties for a single consideration, and. following Morrison v. r.arlc. 5 0. R. 434. that the purchase could not be avoided by the defendant alone as to sonic of the shares, but, if rescinded at all. it must be S(3 as between all of the purchasers on the one side and Doll on the other, and a^ to the whole subject of the sale, and for this no ca'^e had lieen made. Doll V. Howard. XI. 57-. .S'lT also M.XSTF.R .\X1) Sf.rv.nxt. .SVc- also Ple.m'I.vc. II. III. \'I. Pi:i«FORM.\XfE .\N'II BRF.AriT. Agreement to Ship.] _ Pl.iintitT ;i,mn(l 10 put (in b; aid cars certain L<|. ids. In an action for the price "i the gootls — /;■(•/(/. that, even if the pi- ' itifT had aereeil to ship the goods, their ac- ceptance by the railway wa^ a per- torniatice of the contr;ict. ;ilthoueh the railway might have subsequently rilu-ed to gi\e a >hip|)iiig lloii/'cr V. Coombs. \'l. 63. bil Building Contract. — .Snhstan- tial Coni/'lrlioii. — Where work is to be d'liie 111 a specified manner and to be |)aid for on completion, and it is done in a different m.anner. or so de- fectively as to ju^tify an allowance for the defects, and the party f(,ir V. bom it is done refuses to acriuicsce ill the \ariations or defects or to ac- cept the work, but simjily takes the position that the workman must ]ier- fcrm it according to the express stip- ulations and perfectly, and interpos- es no obstacle to this being done, the workman camiot recover anything before this is done. Brvdon v. Lutes, IX. 463. \'I1. ACTIOXS FOR B;^F..\cn. Allegation of Contract under Seal..] — The plaintiff ociation." The defendant did not sign the petition for letters jiatcnt, luir any memorandum of assuciation, but paid $10 on account of his sub- scription for a share. In an action by the plaintiff, a creditor of the Company, for unpaid calls — //('/(/, that the defendant was not liable. /Ulan v, Gordon, 1. i,^j. Contract to Take Shares, What is — .Icting as SlhircliolJcy.] — To constitute the relationship of share- holder there must be a contract be- tween the Company and the individ- ual. But this contract need not be sanctioned by by-law. An applica- tion for 50 siiares was made by H, before incorporation. After in- corpciration he was entered in the books of the Company as the holder of 50 shares, acted as a director for two years (which he could not have done unless he held at lease five sli.ires). and paid calls (upon what number of shares did not clcarlv ap- ;i..r). Iliid. that these circumstances were evidence of the existence of a contract to take shares, and that 11. was not entitled to have liis name struck from the list of contributor- ii- A'l' Bislio/^ Bugrax'in^i; and Print- int; Co. ; Ex Parte Howard. IV, 429. Issuing Shares at a Discount.] — I'nder The Manitoba Joint Stock C'.inpanics" Act, R. S. ^I., c, 25. ss. ,^0 & 33. it is competent for the di- rectors of a Com]iany to issue shares of :',s stock at a discount, without ti authority of a general meeting of .12 Company, provided that the issj. is bona fide and the di-count is not greater than has been fixerl by a resolution passed at a previous gen- eral meeting (if any). This decision, however, applies oidy as between the Company and a shareholder, and has no reference to ((uestions arising between creditors and shareliolders or in case of a winding-up. The difference between our Act and the English Joint Stock Com- panies' Act, under whicii E.v Parte Pauiell. 22 Beav, 46, was decided, l)iiinted out. The defendant Company had matle an agreement with the Edison Elec- tric Co. not to issue any shares at a discount. Held, that this did not affect the validity of the issue of sliares to the plaintiff at a discount, tliough the lalison Co. might sue for damages for breach of contract, Walsh v. 77(1' Xortliwest ILleetrie Co.. XI, 629. Reversed, XIX. S. C. R.. .\V IV. E.XTENT Axn Exercise uf ERS. Pow- Purchase of Buggy by Com- mercial Company, and Payment by Note.] — I'laiiuiff sold a buggy to the (iold Seal Oyster Co., which was incorporated under The Mani- ti'ba Joint Slock Companies' Act, for the puri)ose of carrying on (amongst other things) a retail business in the sale of oysters, fish and poultry in the City of Winnipeg. The sale was a conditional one, and the plaintiff itook a note for the amount of the purchase money signed " Gfild Seal Oyster Co., T. H. Jones, Sec.-Treas." The buggy was used in tlie business of the Company for the delivery of griods and soliciting of orders, al- tliough it was sometimes used by the manager . V. Conklin. I. r8i. Power to Mortgage Real Estate --Ultra ]'ires.]—\\\ agricultural so- ciety incorporated under The Agri- cultural Societies' Act. 55 Vic, c 2, ( -M. 1892). has no implied power to borrow money or to mortgage real estate belonging to it, notwithstand- ing the provisions of section 9 of the .Act prohibiting a sale, mortgage, lease or other disposition of any real pr(jperty of the society unless auth- orized at a general meeting of the scciety; and the district registrar wrs right in declining to register a mortgage of such a society given to secure a lf>an of money to erect buildings on its real estate. Brice on ritra i'ires, p. 122; Fisher on Mortgages, p. 136; The Queen v. Sir Charles Reed. ( 1880) 5 Q. B. D. 58.3, and Blackburn Building Societv v. Cunlil'fe. (1882) 22 Ch. I). 61." fol- lowed. Bickford v. The Grand Junc- tion Railzeay Co., (1877) i S. C. R. Old. distinguished. Held, further, that the statute of 189-), c 24, s. ,^3, empowering the Municipality of Rockwood to guar- antee a loan to the society. " to be effected or procured for the purpose of erecting buildings and the im- provement of the grounds of the said society," could not be construed as giving the society any power which it had not before, for a misappre- hension of the law by the legislature has not the effect of m.aking that the law which the legislature had erron- eouslv assumed it to be. .Xortliivcst lUectric Co. \. Jl'alsh. (1898) 29 S. C. R. .^3- /" Ri' the Rockzeood Elec- toral Pi'oisioii .Igricultural Societv. XII. See also Canwdi.w P.vciiqc w.w. R.ML- V. CoNTRACT.S .\X1) iNDKnTEDXKSS. Liability of Promoters for Re- turn of Money Paid for Unallot- ed Shares. I— The plaintitT subscrib- ed for stock on the terms of a letter written to him by the secretary of a committee of promoters of a pro- jected Company, and paid half the amount of his subscription. The 141 CORPORATION. 142 nuney was forwarded by tlie coin- niittcc to the incorporators of tlie Company, wliich was incorporated under the laws of Minnesota. Xo stock having been allotted to the pliiiniiff. lie brought an action against the committee for the amount i)aid, declaring upon the conmion indebi- tatus counts. A non-suit was enter- ed at the trial. Ilrld (Wood. C. J., dissenting), that the non-suit was right. Brcdcn V. Ia'oii. T. W., 50. Necessity for Seal— niiitloyiiu'iit of Xcccssary OfUccr.] — To a declar- aiinti alleging a contract of hiring by tin; plaintiff with the defendant Com- l)aiiy as their chief engineer, the de- fendants pleaded th.a they did not make any contract with the plaintiff under their corporate serd. as re- (juirecl by law. //<•/(/, on demurrer, that the plea was bad. for. as tlic employment of a chief engineer was a matter of neces- sity, the contract might lawfully be made without seal. Mmdocli v. .\[uiiifoha S. /F, Col. /?in7ii.'av Co.. T. W. .3.M. Necessity for Seal.]— Plnintiff. a civil engineer, was eiig;iged by de- fendants as i)rovisional engineer at S.^oo per month. The employment coinnienccd on 9th of August. 1882 ; he was dismissed on r6th of Decemh- Iht, 1S83. and paid up to that date. Me sued for wrongful dismissal, and claimed wages up to 0th ( f Febru- ary, the earliest period at which his services could have been terminated by a month's notice. //('/(/, that as the plaintiff was an important official, his engagement was not liinding upon the corpora- tiiin, not lieing under 'ts corporate seal. .■Iniistrong v. PortLigr, ll'rst- boiinic and Northii'cstcrn Raihvay Co.. I, 344. Necessity for Seal.] — A titnc- kci.per is not a " superior officer " that his employment by a corpora- tion must be under seal. Cordnii v. The Toronto. Manitoba and X.^rth- U'cst Land Co.. II, 318. Necessity for Seal — rsual Course of Company Procrditrc.] — Tlie de- fendants, a Company chartered un- der The Joint Stock Companies .*\ct, C. S. M., c. 9, div. 7, thmugh its officers, who usually made such con- tracts, hired by parol the plaintiff to manage their elevator and business at M, Hrld, the contract need not have been under seal (section 26<) f>f the statute) if made by an officer, in gen- eral acc'irdance with his powers "un- der the by-laws or otherwise." Per Taylor, J. — The plaintiff, hav- ing been hired by those officials who I iiired all the per-^ons holding posi- I tioiis similar to that of the |ilaintiff. I there was evidence to gn to the jury as to whether the C(Mitract had not been made " by an agent, nfficer or servant of the Company in accord- ance with his powers as such officer, under the by-laws of the Company, or otherwise." Sec Jones v. Hen- derson, III, 43,?). Per Killam. J. — i. Frnm the mere fact of acquiescence in tiie exercise of such powers (by the offici;il) or from the acquiescence of the Company in the iilaintiff's a|ipnintment. it maj' be inferred that all formalities neces- sary to give the nflici.'il authority to make the appointment had been duly observed. 2. Acf|uiescence of the di- rectors in the.act of an official in dis- missing the plaintiff, coupled with the substitution of another employee, also acquiesced in by the directors, which official had autli;}rity tn hire the plaintiff, is evidence of authority to dismiss. By sectiijii 47. " The di- rectors shall from time U> time elect from amiMig thetnselves a president of the Cnnijiany. and shall also ap- piiint and may remri\e at pleasure all fillH'r officers thereof." //('/(/. I. That this clause did not ap)dy to the plnintiff. _>. Sneh power of removal must be s'rictly pursued, and onlv at a regular meeting of the directors. Per Killam, J. — .-V dismissal in such nvinner .must be pleaded. .Me- "dr,;jrds V. 0-olrie Milling Co., IV, I. 143 COEPOBATION. 144 145 Necessity for Seal.]— By resolu- tion the ck'fendaiits appointed the plaintiff their " permanent land com- missioner," at a certain salary. The secretary of the Company wrote a letter to the plaintiff informing him of the appointment, and at his re- quest affixed the corporate seal to tlie letter. The plaintiff sued in assump- sit for wrongful dismissal. Held, that by his jileading he was estopped from setting up the hiring as under seal. QiKcrc, as to the meaning of the word " permanent." QiKcrc. whether, as a matter of law. the hiring was unde"" seal. Up- on the evidence— Held, that th'. ori "rree nent had been supercede.) i" linated by a subsequent agi.Jhn.m Belch V. The Manitoba & Xorthiecstent Railzcay Co., IV., tpij Necessity for Seal.] - v, liile i.-r defendant's Municipal Council ivi.- in session, it verbally contracted with the plaintiff' fur the construction by hini of a bridge on a travelled road. During the work some pay- ments were made upon account, and after its completion a resolution was passed accepting the bridge and di- recting payment. The Council after- wards repaired the bridge, and it was used In' the public. There was no by- law authorizing the construction of the road or the coiUract accepting or dealing with the bridge. In an ac- tion for the money — Held, that the contract not being under seal, nor it or the work auth- orized or adopted by by-law. the plaintiff could not succeed. Beriiar- dinc v. The Rural Municipalitv of North Diifferin. VI. 88. Reversed. XIX. S. C. R.. 5.81. Necessity for Seal—" Usual E.v- piiises." What Included In.] — The plaintiff was engaged by the presi- dent of the defendant Railway Com- pany to act as chief engineer of the railway at a salary of $250 per month besides his " usual exi)enses." and served in that capacity for about nineteen months. Held, that he was entitled to re- cover at the rate agreed on for his services, although there was no con- tract under seal. Bernardine v. Xorth Dufferin, (1891) 19 S. C. R. 581. followed. Held, also, that the plaintiff's board while at his headquarters was not included in :he " usual expens- es " which he was to receive in ad- dition to his salary, but sums paid out for board while away from his usual quarters on the Company's work would be so included. Forrest V. Great Northivcst Central Railivay Co., XII, 472. Necessity for By-Law — At^- pointment of Solicitor.] — Plaintiff sued a rural municipality for ser- \ices as solicitor, but no resolution or by-law of the council employing him was produced, nor did the coun- cil adopt or derive any benefit from his services. 'leld, that he was not entitled to 1.. cover. Ctcrran v. The Rural Mun- icipality of North Norfolk. VIII, 256.. Necessity for By-Law — Borrozi<- /;/,;' Money.] — The defendants were incorporated under The Manitoba Town Corporations Act. C. S. M.. c. 10. Section 377 of that Act pro- vided that town loans, whether by issue of debentures or otherwise, should only be made on a by-law oi the council to that effect. The defendants being indebted to the Ontario Bank, which was press- ing for payment, the town council passed a resolution referring the matter to the Finance Comiuittee with power to act. As the plain- tiffs held in their hands for sale a large aiuount of the debentures of the town, the committee arranged to give the Bank an order on the plain- tiffs for the amount of the debt. The order was accordingly prepared and signed by the Mayor and secretary- treasurer, sealed with the seal of the corporation, and sent to the Bank manager. The action of the com- mittee was duly reported to the town council, and the report was adopted. The plaintiffs afterwards accepted the order, and paid the 145 COBFOBATION. 146 amount to the Bank. They then brought this action to recover the air.ount of the order from the de- fendants. //('/(/, that the transaction was in the nature of a loan of money, and tliat the plaintiffs could not recover without proof of a hy-la\v having been passed, signed and published in accordance with the provisions of sections 208, 213 and 211 of the said Act, and no such proof having been given, that the plaintiffs must be non-suited. Bcrnardinc v. Xortli lUttfcrin, 19 S.C.R. 581, distinguish- ed. Macarthur v. Portage la Pra- irie. IX. 588. By-Laws _ Xeeessity for Seal.] By-laws of the Board, except those under which debentures are to he is- sued, need not be under seal. P.asl- crn Jiiilieial District v. Winnipeg, III. -^i7. Ratification — Agreement Prior to Charter.] — Prior to the granting of the defendant's charter, S., who afterwards became its manager, made a verbal agreement with the plaintiff with reference to the land of the plaintiff. Subsequently, and after a charter, a written agreem/ent was ] repared. The parties to it were the iilaintiff of the one part, and B. and D. (who were shareholders in the Company) of the other part. It was signed " Dominion City Brick Company, Aubrey Smith, Manager," but the Company's name appeared in no other part of the document. 1/eld. that the Company was not bound by the verbal agreement, be- cause made previous to its charter, and therefore incapable of ratifica- tion. 2. That the Company was no party to, and was not lialjle under the written agreement. U'addell v. The Dominion Citv Brick Co., V, 119. Ratification of "Unauthorized Contract — Construction of Aiitli- o'-ity to Sell or Pledge Bonds — Pledge Good in Part — Bcids — Power to Mortgage or Pledge — Raising Money — J'alidity of Ilonds Wrongfully Charging Land Grant.] — The president of a Railway Com- pany purporting to act on behalf of the Com])any. entered into a contract with certain contractors for the con- struction of forty miles of road. By the contract, bonds to double the amount of money to be secured, were to be deposited in a Bank to secure to the contractors payment of a por- tion of the price of the construction of the railroad. The president afterwards agreed that, in default of payment within a limited time, the contractors should take the bonds in payment at fifty cents on the dollar. Two years after the bonds were (lel'vered to the contractors, the Company filed a bill repudiating the contract and asking that the bonds be declared null and void. It appeared that the defendants had obtained a judgment at law against plaintiffs for a large amount on the contract, in which action the Company had set up as a defence that the contractors had accepted the bends in payment, that the plaintitTs had begun an action then pending on the contract against defendants, claiming damages for non-comple- tion of work, that an Act of Parlia- ment had been passed in the interest of the Company, which recited the construction and completion of the work, and that during two years no steps had been taken to repudiate the contract or to question the presi- dent's authority, and that the Com- pany had taken possession of and the benent of the work. Held, I. That the Company must be taken to have ratified the con- tract. 2. That the Company could not take the benefit of a part of the cf.ntract and repudiate it as to an- other part. A by-law of the Company author- ized the president of the Company to " sell or pledge the same at such price or prices, and upon such terms and considerations as he shall sec fit." Held, that in the absence of evid- ence that more favorable terms could have been made, the president in thus agreeing to give the contractors r 147 CORPORATION. 148 bdiiils at fifty cents on the dollar in- stcaij (if cash, was only disposing of thtin at sudi price and on sucii tcrn)s as lie cnuld. The Company, by its act of incor- poration, had power to issue bonds which should constitute a first mort- gnge and preferential lien, charpe, claim and privilege upon the said railway constructed, and upon its tiovernmcnt land p;rant to bo earned, and the undertakincc." By an amend- ing Act the words " and upon its Ciovcnnncnt land grant to be earn- ed," were struck out. Sul)ser|uently the Company issued bo"'ls which purported to charge the land grant of the Company. St nihil', that the Company had no power to charge the land grant to be earned, but — Held, that assuming the bonds not to be a valid charge upon the land gr:int, they were not on that account \-oid. but were valid as to the rest of the property charged and as evidence of del)t. Th.c U'iiuii/'i'g & Hudson's Bay Raih>.'ay Co. v. .Maun. \'II. 8i. VI. Al'THORITV OF OFFIrERS .VXD Agents. Libel.] — The manager of one branch of the defendant Company wrote certain letters to another liranch. which might have constitut- ed a libel on the plaintiff. There was no evidence that the corporation, or the directors, or the managing board authorized, or had any know- ledge of the letters being written. fliid. that the defendants were not liable. Qucrrc. Can a corporation be guiliy of malice? frccboni v. The Siuiicr Scwiuii M aclinic Co.. II. 253. Arrest — Antliority to Order.] — The manager of a Company (resi- dent at its head office) directed the prosecution of the plaintitT for lar- ceny of the Company's property. The general solicitor of tlie Company ad- vised the arrest, prepared the infor- mation and conducted the prosecu- tion. The duties of the manager were prescribed by by-law. They did not i)rovide for taking such pro- c, (.dings. There was no evidence of express authority from the Com- pany, or that the arrest was within the scope of the manager's duties. //('/(/ (Dubuc. J., dissenting), that the Com|)any was not liable for the arrest. The objection that the Com- pany had not authorized arrest was taken on motion for non-snit at the close of the plaintiff's case, but not as an objectif>n to tiie Judge's charge. Held, that the point was open in Terni, Miller v. Maiiitoha Lumher Co.. VI. 487. Work Ordered by Officials.] — The plaintiff contracted under seal to erect for the defendants a build- ing to be used as a police station. The contract contained a clause pro- viding for further agreements in writing, in case of any change or al- teration in the plans or specifications. The plaintiff sued for the value of certain work, part being alterations in the liuilding. jiart adflitional work in connection with tlif Iniilding in of a boiler for heating purposes (neith- er the furnishing of the boiler or its fittings being part of the plaintiff's contract), antl part for furnishings for the building, such as benches in the cells, lockers, r.'iilinar, desk and other articles. The orders for the work were given partly bv the chief of police, and partly by the License and Police Committee, The City took possession and made use. by its officials, of the w'ork sued for. Held, that the defendants were not H;d)le for any part of the wrn'k. Oral evidence of that which upon cross- examination turns out to have been in writing remains valid as '>vince. KUfdfrieh v. The City of ll'iiiiiihe^. IV. lo.v Proof of Authority.] — .\ statute, pinviding that every contrnc!. etc., made, etc., on behalf of the Compatiy by an officer, etc., of tlie Conipany, in general accordance with his pow- ers as such officer tmder the bv-laws of the Company, shall be binding rii 1: 1 1 l«pl ^ 149 CORPORATION. 150 upon the Company, does not f)bviatc tlic neccssit)' of proof tliat the con- ;ract is one in getieral accordance wiih tlie powers of tlic officer. Jones V. Henderson, VI, 433. Sec Melldwards v. Ogilvie, IV, i. Presumption as to Authority.] — .\ manager of a cnrpor.'ition pur- chased a huggy and gave a nnte tlicrefor. Held, that, in the absence of evi- ileuce to the contrary, it should he pie.-unu'd tliat the manager of tlu I'lMppany had authority to purchase the buggy and to sign the note ihere- fnr. luiyce v. MeDcnald. IX. -'97. VII. Torts. Malicious Prosecution. | — A luunicip.il as well as a trading cor- |/rrali(jn may he liable for malicious lirosecution. The Mayor of the City, ;-suining to act as an otlicer of the City, laid an information against the plaintiff ; and a firm of solicitors, as- -iiiiiing to act for the City, advised liim in the matter, prep.areil the in- fi'Tination and attended upon its re- mrn on behalf of the prosecutors. The solicitors reported the matter to the council and the City paid for the solicitors' services. IIHd, that the City was liable for ;lic action taken by the Mayor. Il'il- .u'l' V. City of ll'innif^ef^, IV, 193. libel.] — See Freeborn v. Singer Se:eini^ Machine Co.. II, 253. VI [I. FoREIGX CoRPOU.XTION'S. Service On — Liability Of.] — //('/./. r, A writ of summons in fi.rm for service in Manitoba, against a foreign corporation having no agent in the Province, is not a null- ity, and (scuibic) .the irregularity \vi!i be waived by appearance. 2. Such a foreign corporation may be still in Manitoba for work done for the cori)oration there. 3, It will be assumed tiiat a United States cor- |)oration is lialile to be sued there in it,-; cori)orate capacity, until the con- trary be shown. 4. Service of a writ may be affected under C.S.M.. c. 31, s. 7^2. upon a foreign corporation out of tlie jurisdiction, l)Ut the .service cannot be m;ide upon a mere clerk, 5. .Service of sucii a writ may, under section 7,^. be authorized upon an as- sistant-secretary, but it must appear that service camiot be affected upon one of the proper otlicers of the Company, and the nature of the du- ties of the office must be shown, 6. .•\n order allowing service upon a foreign corporation out of the juris- diction should be of a notice, not a copy, of the writ. 7. A writ for ser- vice in Manitol)a may be issued con- cf.rreiitly with one for service upon an tilien out of the jurisdiction. 8. .-\n application may be made to set aside the service of a writ upon the ground th.at it was not served upon the proper officer of a corporation. It is not necessary to tiwait the re- sidt of a motion to homologate the service or for leave to [jroceed. Crctly V. T.'ic Orci^on cr Transcon- lir.cn'tal Railicay Co.. Ill, i8_'. See also Ante IV, .S"<-i' also BwKRffTrv. See also CosTs, III. [ (u), (ec).] See also G.\rxisiimknt, I. Sec also St.xtutics, IV. IX. W'tNIUXC-UP. {a) .Ipflication for Order. (b) Costs. (c) Liquidators. id) Rif^lits of Creditors. ((•) ntfect of I'roeeediiigs. (/■) Leax'c to Sue. 161 CORPORATION. 162 (a) A[>(>lication for Order. Petitioner not a Creditor at Date of Demand.]— In supporting a petition under The Winding-Up Act against a Company by a person claiming to l)e a creditor and relying upon a service of demand, under sec- tion 6 of The Winding-Up Act, it is necessary to sliow that the petitioner was a creditor of tlie Company at tlic date of service of the demand ; and it will not be sufficient to prove that the judgment was recovered be- fore the date of the service, without showing also that the petitioning creditor had acquired the judgment before such dale. Re Rapid City Farmers' Elevator Co., IX, 68i. Notice of Applicaiton — Insolv- cney.] — Notice of an application for a winding-up order need not be serv- ed upon creditors, contribulories or shareholders of the Company. They sh.ould be served with notice of the application to appoint a liquidator. Service by a creditor of a demand for payment, in order to establish in- solvency, upon directors of the Com- pany is not sufficient. Re The Ott'- .'Ip'felle I'allev Panning Co., Ltd., V, i6o. Otlier Creditors Showing Cause — Seeo)id Applieation — AppHeatio)i of Statutes to Manitoba Companies.] — Creditors may show cause against the making of a winding-up order. A subsequent execution creditor may file a petition for a winding-up order. The provisions of 52 Vic. c. 32, (D. 1889"), which are not made ap- plicable to proceedings under The Winding-Up Act, do not. in conse- qi.ence of section 3. apply to cases in which it is sought to wind up a Company incorporated in Manitoba. Re Lake IJ'innipeg Transportation, Lumber and Trading Co., VII, 255. ]Proof of Insolvency — .-lekno'ii'- ledgement.] — A Company does not " acknowledge " insolvency by allow- ing judgment against it to remain ui paid. Insolvency held t(^ have arisen from the inability of the Com- [any to meet its liabilities in full, ;ind a conveyance of the main part of its assets to another Company with- out the consent of the creditors and without satisfying their claims. Re Tlie Qu'Appcilc Valley Farming Co., Limited, V, 160. Proof of Insolvency — Proof of Assignment of Debt to Petitioning Creditor.] — In a petition for an or- der against a Company under The Winding- 1 'p Act, R. S. C. c. 129, the petitioner alleged that the Conv- pany " is insolvent and utterly un- able to pay your petitioner's said debts and its other debts." Held, that this was not equivalent to stating that the Company was " unal)le to pay its debts as they be- came due," and was not a sufficient alegation of the Company's insolv- ency within the meaning of section 5, s-s. (a) of the Act, and that the petition must be dismissed with costs. The petitioner's claim was based on a judgment alleged to have been recovered by another person, and ac- (|i;ired by the petitioner, of which he " is now the bo)ia fide holder and owner." Held, a sufficient statement of the claim of the petitioner, without an allegation that the judgment had been assigned by an instrument in writing. Re Rapid City Farmers' Fl era tor Co., IX. 571. Proof of Insolvency — .\'on-,-lp- pcaranee of Company — .IfUdavit of President — P.xecution in hands of Sheriff — Time.] — The non-appear- ance of a Company to oppose a peti- tion for a winding-up order is not an acknowledgment of insolvency sufficient to bring it within section 5, s-s. id) of The Winding-Up Act. The petitioner, who was president of the Company, as well as a large creditor, stated in his affidavit that from his knowledge of said Com- ]ian\<'s affairs be knew it to be un- able to pay its debts in full, but gave no comparative statement of its as- sets and liabilities. Held, not sufficient evidence of in- solvency. Section 5, sub-sec, (/t), 152 153 CORPORATION. 154 tlie an had in ■mcrs' il It of ds of ■>pear- peti- not ency oiion Act. dent large that Com- un- gave s as- )f in- (/n, ' ■ The Winding-Up Act, provides that a Company shall he ileenied in- X Kent " if it permits any execution i>sued against it, under which any of it-; goods, chattels, land or property are seized, levied upon or taken in execution, to remain unsatisfied till within four days of the time fixed by the sheriff or proper officer for the sale thereof, or for fifteen days after such seizure." Ilrhl, that in computing time tm- der above sub-section, the day fixed for the sale is exclusive, and there- fore, where an unsatisfied writ was in the sheriff's hands on the 30th of December, and the sale was fixed for tile ,]rd of January, it was a writ re- ti'aining " unsatisfied till within four (lays of the time fixed for the sale," .nid the Company was insolvent within the meaning of the Act. Ji.v parte Fallon, 5 T. R. 283, and Wil- liams V. Burgess, 12 A. & E. 6,35, fallowed. Re Lake ]Vinnipeg Trans- pi rtatiou. Lumber and Tradim^ Co., vrr, 255. Proof of Insolvency — W'licn Cunipaiiy Deemed to be Insolvent.] —In supporting a petition for an or- der against a Company under The Winding-Up Act, R. S. C, c. I2g, it is not sufificient to show that sev- eral demands of payment have been made by the creditor without suc- cess, unless a demand in writing has been served on the Company in the nnuincr in which process may legally be served on it, under section 6 of the Act ; nor can the Company be deemed to be insolvent within the meaning of the Act, because an ex- ecution has been returned nulla bona by a County Court bailiff. The provisions of sections 5 and 6 cif the Act are exclusive, and a peti- tioner for a winding-up order must strictly prove the existence of one or more of the circumstances there set forth, or his petition will be dis- missed. Re Qu'Appcllc Valley Farm- ing Co., ^ M. R. 160, followed. /;; Re Flagstaff Mining Co.. L. R. 20, Eq. 268, and In re Globe Nciv Patent Iron Co., L. R. 20 Eq. 337, distin- guished. Re Rapfd City Farmers' Elevator Co.. IX, 574. (b) Costs. Of Creditors Representative.] — In winding-up proceedings, the costs of the appearance of a creditors' re- liresentative should be allowed, whenever such appearance is not clearly unnecessary, and the mere fact that tlic interests of the credi- tcrs and official liquidator are iden- tical is not a sufficient reason for re- fusing costs. Re Lake Winnipeg Transportation, Lumber and Trad- ing Co., VII, 605. Second Petition.] — A creditor presenting a winding-up petition, with notice of a former one, does so at his own risk as to costs, and can recover costs subsef|uently incurred or.ly if he can show that the first pe- tition was presented mala fide or col- lusively. Re The Manitoba Milling, etc., Co., VIII, 426. See also Re Commercial Bank, IX, 34^ (Infra). (c) Liquidators. Choice Between Several Nomin- ees — Can-i'assing for I'otes — Xom- inee Indebted to Bank — Costs — Re- muneration of Liquidators.] — Under the provisions of The Winding-Up Act. R. S. C, c. 129, s. !0i, as amended by the Act. 52 Vic, c. 32, s. 17. whilst the Court is confined to a selection lietwccn the persons nom- inated at the meetings of creditors and shareholders, for the office of liquidator, it is not bound to adopt the choice of the majority, but must exercise its own discretion. The Merchants' Bank of Canada, the petitioning creditor, its claim be- ing amply secured, held not entitled as of right to have its nominee ap- pointed. If the creditors nominate one per- son and the shareholders another, the Court will ccrtcris paribus have particular regard to the wishes of the latter if the Company is solvent, and of the former if it is not. But when it is not absolutely clear thii*- the Bank is solvent, the inter- ests of creditors in the liquidation ' I' 'I 15.1 CORPORATION. 166 arc ciitiili'il tn p;rt;iifr cniisideratinii than tlinsu of llic sliarfliiiMiTs. It is iin|)nriaiil iliat llii' dtivf \\i\\u- (latiir slidiild 111' a man of t.'\|H'rit'iK'i' in liankinK, and \w\\ ac(|iiaiiiti.'(l wilii tliL- intiliuds (if Bank lj()i)lv-ki'e|)iiig. 'I'lif candidate wiio rccfivi-d tlu" largest vote as cliicf li(|iiidator an'ionjjst tlie unsecured creditors, and liy far tlic largest vote amongst tlic sliareliuidcrs, was indebted toilic B;,nl< in a considcraljle amount, and aithouuli ii was claimed that this (iehl was fully secured on real estate, yet the C"ourt, deeming the securities uncertain .and unsatisf.ictory — //r/(/.ilKii on this ground, amongst others, it was not dcsirahle to ap- point him. It is r)l)jcctional)le for a candidate to canvass in ;uiy w;iy for the aj)- l>ointment or to send out jiroxies to secure votes, or to vote for himself on pro.xies sent to him. or to advo- cate his own claims hctorc the meet- ing: and it is e>peci;illy - bur.semems connected with t h e holding of the meetings. Re 'I lie Coinniereuil Hank of Manitoba, IX, 34-'. Remunerntion — Reference t,i Master. \ — The Court has no power to refer to the .Master the considera- tion of the amount to be allowed to the liipiid.itor. The scale of remun- eration of li(|unioluieiy binding, but as a guiile. Amount of renuuieration under cer- tain circumstances di>cu>;sed. Re The Sashalche'a'an Coal .\lini)ig Co.. \'l. 5eciirity. lie afiei wards ai)plied for leave to withdraw this claim and file another claiming a itiaritime lien up- on ihc ship for the wages, and also tor leave to jiroceed in rem in the l"xehec|Uer Court to enforce the lien. //.7i/, that leave should he granted. //>7(/, al.so, that llie costs of the j'pplication should lie reserved imiil the suit in the Mxche(|uer Court was disposed of. A'l' Lake iriiiiii fi\ii 'rraiixporti.Uii'U. Lniiihcr and Trad- ■1^' Co.. Limited (nrrt;maii's Claim). •II, 46,1. i\ffoney in Convt— Made hy Slwr- itf before f('/)i(/(;;,t,'-/ '/i Order — lilopfel by L'iling Claims.] — L'nder \;irious executions against the de- Iciulant Company certain goods were se:?ed. Upon ad\'erse claims heing ir.ade, the sheriff sold the goods and paiil the money into Court muler the lerins of an interpleader order to aliide the result of an issue. Before the determination of the issue, the Company was ordered to he wound up. The execution creditors having succeeded in the issue. mo\ed for payment to them of the money in Ouirt, and were o])posed by the H- (|ui(lator. Ifeld, I. That the execution credi- tors were entitled to the money. 2. That they were not estopjicd from netting up such claim because they had filed claims before the liquida- tor. Gait v. Saskatelieieaii Coal Co., I^^ .304. Withdrawal by President of Customer's Deposit,] — The claim- ant, having $1,200 on deposit in the Hank, and being about to go on a Journey, left a cliei|ue for that amount witli the presiilent, payable to his order, with instructions to in- \est it for him in a mortgage as soon as a suitable sectirity couhj be fotmd, Un the last day before the suspen- sion of the Hank, no lnve^tnunt hav- ing yet been found for the mtiiiey, the prej«ion, with the words "twelve hundred dollars" written on it. and placed in the vault iif the liank. The |)atkage was I'lind there when the liquidators c'iiiii' into pi)s>e.N>ion on the com- mencement of the winding-ui) pro- ceedings a few days afterwards. The claim;int contended tli;it he was entitled to the notes. Held, that the che(iuc li.p mg been indorsed and the bank notes drawn without the authority of the claim- ,-im. they Were still the property of the bank, and that the claimant must rank only as an ordinary creditor for the $1,200. Re Cnmmereial Hank of Manitoba. Rev I 'r. Robertson's Claim, X, Oi. ((') Effeet of Proeeedings. Not a Stay. I — A winding-up or- der is not (jf itself a stay iif |)roceed- ings, and a notice of trial given after such order will not on account 01 it be set aside. Xortlizeest Timber Co. V, McMillan. III. 277. (f) Leazr to .Sue. Notwithstanding Winding-Up — Liahilily of I 'iree!i'rs.\ — .\ Cuin- pj'.ny incorporated under The .Mani- toba Joint .Stock Compaiiines Incor- poration Act was in process of being wound up. P.. a servant of the Company, applied for leave, under section 16 of The Winding-Up .Xct, to bring an action against the Com- pany for arrears of wages, so that he might on the execution being re- turned unsatisfied proceed to sue the directors pursuant to section 276 of ivr 159 COSTS. The Manitoba Joint Stock Compan- ies Incorporation Act. //(■/(/, that as there was a time lim- ited b\ statute within which action siiould he brougiit, leave ought to be given to sue. h'c Lake ll'iniiipcg 'J'nnisportatioii. Lumber & Trading Co., J'aulsoii's Claim, VII, 602. X. Cros.s-ReferEiNxes. Sec Banks and Banking, IV. Sec Municipal Corpor.\tions. Sec Public Schools. See Taxation, I. COSTS. I. Persons Entitlkd. II. Amount. Rate and Items. III. Security of Costs. IV. Taxation. V. Set-Oit. VI. Cross-Refeijences. I. Persons Entitled. Co-Defendant— C«.W.y of Defend- ant .li^ainst.] — Tlie bill was filed against Y. and S., to remove from the registry a conveyance from a former owner to Y. as a cloud on the title. Plaintiffs had agreed to sell to S.. who declined to complete on account of the registration of the deed sought to be removed. S. al- lowed the bill to be noted f^ro con- fcsso against him. hut appeared at the trial and asked for costs against his co-defendant Y., on the ground that by registering the conveyance to him the suit had been occasioned. Held, that the appearance of S. was unnencessary, and he was not 160 Sutherland v. entitled to costs. )'uuiii;, 1, 94. Disclaimer.] — To a foreclosure bill alleging that the defendant C. was the assignee of the equity of re- demption, and was entitled to re- deem, the defendant C. filed a dis- claimer and asked to be dismissed with costs. Held, upon a hearing on bill and answer the defendant C. was order- ed to pay the costs occasioned by the disclaimer. lyUtun v. IVilton, IV, 227. Disclaimer.]— One of two defend- ants in a mortgage case, who was entitled to a one-half interest in the equity of redemption, filed a dis- claimer as follows: "After the ser- vice of the bill of complaint herein nprui me, I offered to quit claim any right or interest that I had in the Ucatters in question in this suit to the plaintiff, and the plaintiff refused to accept said offer, and I disclaim all right, title and interest, legal and e(|uitable, in any of the said lands and premises, and I claim to be hence dismissed with nly costs of suit in- cf.rred sulisequently to said offer." Held, upon a hearing ujion hill and answer, that the disclaiming defend- ant was not entitled to costs. The Manitoba Investment Association v. .\L>ore. IV, 41. Judgment for Part.] — A plain- tiff being entitled to an order to sign judgment for a portion of his claim (under section 36 of The Queen's Bench Act) is entitled to the costs down to that period. Me/lnneary v. rianaj^an. Ill, 47. Non- Appearance on Motion.] — Where the opposite party does not appear, costs cannot be given to the applicant where not asked for by the notice of motion. Geddes v. Miller. I. 365. Salaried Attorney.] — The de- fendant's attorney was a salaried offi- cer of the Company, but by the agrccii^cnt was entitled to any costs which could be taxed against oppos- ing litigants. 161 COSTS. 102 ill and :fcii(l- Tlw wn V. plain- ;o sign claim ^ueen':i costs •ary v. on.] — )es not to the by the Miller, le c de- d offi- by the ' costs oppos- Ih'ld. that tlic dcfciulaiits were en- titled to tax the usual costs against tlie plaintiff. Ifarrcy v. Tin' Cana- dian I'acific Rail'cay Co., III. 43. Salaried Attorney.] — The de- ifiulant's solicitor was a salaried of- ficer of the Corporation. The only agreement was a liy-law by which tliL' solicitor was appointed and his salary fixed. No reference was made as to costs which could be taxed against opposing litigants, and evi- dence of the practice was excluded. //('/(/, that the defendants were en- titled to tax the usual costs against the plaintiffs. McLennan v. H'inni- /•.-,;'. Ill, 83. (Jnnecessary Proceeding — Mis- take of Master.] — The ^.faster, in making his report, made an error in the calculation of interest, niaiiife->l ■ m the face of it. Defendant gave r.rtice of appeal. Plaintiffs' solici- PT. "11 being served with the notice • ■i .appeal, having had his atteminn directed to the error, at once wrote offering to attend in Chambers and consent to .-ui order amending the report, but the appeal was proceed- ed with. .\n order was made amend'ng the re]iort, without costs to either i)arty. I'reei'iold Loan- Co. v. MeLean. IX, 15. .SV(' M0RTG.\Gi:S. III. .S"i'(' Pr.mth !■;>. X. 11. AmoT'XT, R.\TE .\XI) lTF.M^ (a) Briefs. (/') Counsel Fees. (e) County Courts. {■(/) County Court Scale. (e) Defendants. (/) Demurrer. (,!,') E.vaiiiination. (li) Issues. ((') Master's Office. (j) .Motions. (/v) Orders. (/) Trial, (in) ll'itnesses. ( .) ) Br-efs. Second Brief.] — A second term brief allowed at the amount for which a second copy of the evidence could Ikivc been got from the short- hand writer. .\Ln-ris v. .Irniit, IV , 307. On Appeal.] — Where the Master allowed a brief to one of the defend- ;ints at the hcarii'g. but on appeal from the taxatinn. the defendant claimed an increaseil allmvance — [[eld, that it w.as a matter peculi- arly within the jirovince of the Mas- ter to determine, aivl that his ruling ^liould not be disturbed. }[e}[icken V. Ontario Bank. VIII, 51,^. (/') Counsel Tees. Appeal — Quantum.] — In a proper case an appeal from the Master will be allowed upon the quantum of counsel fees. Twn fees of $(00 each reduced tn two of S50 each. The Master may .allow upon proceedings in his office one fee of $io, instead of the usual .i^i or $2 per hour: but has no power to exceed that amount, Rankin v. .'\feKen.:ie, III, 55.4. Appeal — Ouantum.] — The dis- cretion of the taxing officer as to the a.i'ount of couiivel fees not interfer- ed with. }T>rris v. .Innit. IV, ,^07, Appeal — Qi((ni/('.';.',1— Under the present circumstances of the Pro- vince, the Court will exercise a con- trol over the quar.tum of counsel fees taxed by the Ma-ter. O'Connor v. Brown, \'. „")j. Attending to Hear Judgment.] --On the C(|uity side of the Couit, no fee is allowed to counsel or solicitor for attending to hear judgni'-nt. The fee with brief covers this. Me.\{iek- en V. Ontario Bank. VIII, 51.3 163 COSTS. 164 mi i w mi Foreign.]— Ii was souglit to tax a Ice to agents in Toronto for revis- ing and settling an aflidavit of docu- ments on the ground that the head offices of the defendant Bank \\;is tlierc. Tlie usual charges for pre- jKiring the afiidavit liad heen allowed the solicitors in Winnipeg, Held, that this item should not be allowed. /;(/;■/ of Slircwsl'iiry v. Tnifipi's. 8 Jur. X. S. 586. di'stin- guished. McMickni v. Ontario Bar.j;, VIII. 513. Increased Fees — Practice — A'l'- fcrciicc to Jud'j,c.] — The Master iov over ten years, and his jiredecessor before that, having: interpreted the proviso for taxing increased counsel fees under Item 9 of the heading " Counsel Fees " in the tariff of Feb- ruary, 1875, as applying to all pre- vious counsel fees in the tariff, as well as fees at trials, and this prac- tice having been approved by the late Chief Justice Wood— Held, that the apiilication of the proviso being somewhat ambiguous. a Judge should not interfere with an interpretation supported by such long practice and sucii high authority. The rules as to counsel fees pro- vide that: "Where any fee is sul)- jcct to be increased in the discretion of the Master, either party to the taxation may. during its progress, require that such item shall be re- ferred liy tlie Master to a Judge, whose decision shall be final." Held, that if the iiarties choose to allow the taxation to be closed with- out i'Tsisting on sudi a reference, they . hoidd be tal ;in appeal to the Court of Queen's Piench fronr the decision of a Coun- ty Court Judge on taxation of costs it a (|ueslion of legal principle is in- \()Ived. No counsel fee can be allowed if, a County Court to any person except a duly C|ua!ified barrister or attor- ney, and if the objection is taken ;he onus is on the ])erson claiming, to prove his title to the fee. 'fait \. I^urns. \'Ul. IQ. Interlocutory Judgiiient. ] ^ Where a plaintiff obtained an inter- locutory judgment for $540, as to which the defendant did not defend I he action, and afterwards a verdict lor $77 more— Held, that the plaintiff was en- titled to full Queen's Bench costs. I'ion V. Roiiiieu.v. 7 M. R. 501. com- mented on. Smart v. Moir, VIII, ^03. ((/) County Court Scale. Ascertaind Sum.]— Plaiiuiff sued defendaius for goods supplied, amounting to $224, There was no evidence that the articles were made or supjilied at an agreed price, or to show that the amount claiiued was ascertained by the act of the Iiarties, Held, plaintiff entitled to superior scale of costs. The mere rcnderint' an account with priies stated is not ascertainin.cr the amoi;!it by the act of the parties. Montgomery v. Mc- Donald. I, 232. 165 COSTS. 166 Goods Sold and Delivered.] — AclKin brouglil in tliu Queen's Bench for '$225 'cr goods sold and deliver- ed. Held, that the action might have ken brought in the County Court. and that the plaintiff was not en- titled, therefore, to tax Queen's lieiich costs. Parker v. Xiiuii. II. 30. Record Conclusive.] — Where upon the face of the record tlie ac- tion appears to 1)e one within the ciiii^pe'tence of tlie County Court, the plaintiff is not. merely because the defendant resided without the Pro- vince, entitled to Queen's Bench costs, Such absence may be ground for obtaining a Judge's certiticate fur Queen's Bench costs, but with- out such certificate only County Court costs can be taxed. Cochrane Mauufaetiiriiig Co. v. Hanner. III. 449- Record Conclusive. |— On an ap- (ilieation for a direction U> the .Mas- ter as to the scale on which the costs of an action in the Queen's Bench under the f firmer pr.actice should be taxed, so far as the record showed the action a])peared to be within the jnrisdiction of the County Court, and no cctificate for costs on the Queen's Bench scale had l)een grant- ed by the trial Judge, but ])laintiff contended tiiat the evidence showed tl'.at the action was really one for ihe balance of an unsettled account exceeding in the whole $400. and liicrefore beyond the jurisdiction of ;i County Court. /7(7(/, that, in the absence of such a certificate, the record alone and not the evidence should be looked at, .^nd that, under section 62 of The A. J. .\ct. R. S. M.. c. I. only Coun- ty Court costs should be allowed to the plaintifT. and the defendant was entitled to set off the difference in lii'^ costs of defence between the Queen's Bench and County Court scales, .lllaii v. Clouglier, XII. 327. Sre also Pioii v. Roiiiieiix. VII, 591. Judgment by Default.] — Upon judgment by default, no Judge's cer- tificate for costs is necessary or pro- per. .\Joitkiiiaii V. I'riltie. Ill, 684, Certificate to Prevent Set-ofE.] — Where an action is brought in the Queen's Bench on a cause of action clearly within the jurisdiction of tlie County Court, a certificate to pre- vent a set-off of full Queen's Bench costs will be refused. Macdciiald V. Harrison. \'III. 153. Certificate to Prevent Set-off.] — Section 133. sub-section 2 of The Administration of Justice Act of i8(S5. as amended by 49 Vic. c. 35. s. 17. re(iuires that a Judge must lind, before he is warranted in giv- ing a certificate to prevent a set-off of costs, that " the plaintitt had rea- sonal)Ie ground for belie\'ing that he had the right of wilhdravv-ing the case from the Couiily Court and bringing it in the Court of Queen's Bench, or that the defendant with- out just cause defended tlie same." Held, that, for the purpose of either alternative, the onus is ui)on the i)laintiff to bring out in evidence ;iny fact upcni which the certificate m.'iy be based, and that something more than the fact of the recovering iif some sum is necessary to show that the defendant, without just rea- son defended the action. Held, that when the claim is un- liquidated, the defendant cannot be taken to have defended without just reason. l)ecause he did not pay Piiinev into Court. Ward v. Braiiii \'I1. 229. (i-) Pefendauts. Separate Defences.] — The bill al- leged a partnership between the l)laintit"fs and the defendants A. and B. ; that A., in fraud of the plain- tiff', sold out till' p.artncrship proper- ty to the defendants J)., E. an- itcml- biii 110!, !ss for lionlil rccl'^s- is\vcr> ami COS!'^ Eden De- r aii'l lemur, and by the order the costs of the aj)- plication were made costs in the cause. Plaintiff succeeded on the de- ii.urrer, and the defendant afterwards obtained leave to file certain pleas on payment of the costs of the demur- rer. Ifcld, that the costs of the apjili- cation to reply and demur were not part of the costs of the demurrer. Liz'iitgstonc v. Rozcaud, VIII, 298. (g) Exaniinat'O". Shortening Time to Answer.] — Plaintiff is not entitled to the costs of an irregular examination of one defendant, to discover the address of bis co-defendant, as costs in the cause; nor to the costs of an appli- cation to shorten the time for an- swer. McCijffrcy v. Rutlcdgc, II, 127. (/i) Issues. Successful in Part.] — Where the (1( fend.'int succeeds r,n part of the issues, hut the plaintiff obtains a verdict, the defendant is entitled only to such costs as are exclusively applicable to the issues on which he succeeds. Morris v. Aniiit, IV, 307. Postea Conclusive. ] — \\' h e n there is a general verdict for the plaintiff, and the postea is for the I)l;iintifif on the whole record, the taxing officer carmot go behind this and allow costs to the defendant for any issue upon which he may have succeeded. His only remedy is to apply to the Judge who tried the cause to amend tiie postcu. Pion V. Romicux. VII. 391. .S'(V also Cocltraiic v. Ilanmr. III. 449; Allan v, Cloughcr. XII, 327. (/) Master's OfRcc. Accountant In — Attendance There of Parties or Ilxperts.] — The Master has power to direct the ;il|)ointment of an accountant and to tax the payment of his fee. Al- tlti'Ugh the general ru!e is that no- thing can be taxed for the prepara- tion of accounts directed to be brought into the Master's office, yet in a partnershii) case, when it was not the duty of either party to pre- pare them, a disbursement for their preparation was allowed. No allow- ance beyond ordinary witness fees can be made for the attendance in tlie Master's office, during the pas-- irig of accounts, of a ])ersiin special- ly familiar with them; nor 10 a party to the cause so attending. Seott v. GrifHn, VI, 116. (/) Motions. Supplementary Material.] — Where the material upon which a party is moving is defective, and he is allowed to amend or supply what is wanting, he camio: tax the costs of doing so. Morris v. .Iriiiit, IV. .^07. (k) Orders. In Chambers.] — The costs of settling a Ch;iinber order allowing an appeal from the Referee as to the amount of security for costs arc simjily the costs of an ordinary at- tendance for the or<;er. .MeMieken V. Ontario Bank, VIII, 513, (/) Trial. Postponement of Hearing.] — A trial being postponed because of the unavoidable absence of a iriaterial witness, the costs should be costs in the cause. I'irian v. Wolf. II, 122. "Withdrawal of Record. — Dis- eontiniianee.] — At the trial, after the case was called, but before it was opened, the plaintiff withdrew the record and immediately afterwards took out a rule to discontinue. Held. I. That the defendant was entitled to tax the costs of prepar- ing trial and fees paid to counsel. 2. .\ fee to one counsel of $40 was al- lowed. Poison V. Burke. V, i. Entering Record.]— Where a de- fendant has entered a record and given notice of trial, the plaintiff is not entitled to the costs of also en- tering a record, but where the plain- 171 COSTS. 172 173 tiff had (lone so and liis record had hcen used at tlie trial, and the ver- dict entered upnn it, it was held too late to (ihject to the costs heing al- lowed him. I'ioii V. Roinicux, VII, ()/) ) irilncsscs. Letters and Telegrams.] — Let- t(rs and telegrams sent for the con- venience of witnesses out of the jur- isdiction, Ikeyond the necessary ccjst of prncurinjT their attendance, arc not taxahle. McMickcii v. Untarin Bank. VIll, 513. Expert Witnesses. I — A defeml- ant in a replevin suit in a County Court took a veterinary surgeon to the plaintiff's residence, in order to examine the animal in question, for the purpose of giving evidence at the trial. The defendant succeeded in the action, and on taxatimi of costs the County Court Clerk made an al- lowance to the veterinary surgeon for his time and expenses, and to the defendant fnr his expenses accom- panying him. This was aftirmcd by the County Court Judge on revision of taxation, 'fait v. Burns. VIII, 19. Witness Not Called. ]— To he al- lowed the costs of a witness attend- ing at a trial, hut not called or ex- amined, it is necessary to show four things : — [. That he was a necess.iry and material witness. 2. That he was in attendance. .t,. What he was l)rought to depose to. 4. The rea- son why he was not examined. Mc- Mickcii V. Tlir Onlarin Bank. Vlll. Fees Not Actually Paid, j — .Schedule C. of The County Court Act. 1S87, provides that "the costs iiuist he strictly taxed according to the very letter and spirit of the tar- iff. an(l before taxation of witness fees the fees nuist be actually paid, unless the Judge otherwise orders." On taxation, the C,)unty Court Clerk allowed certain witness fees, which iiad not been actually paid. On re- vision of taxation by the County Court Judge he made an order al- lowing them. y /(•/(/, that the County Court Judge had jurisdiction to make the order. Tait V. Hums. VIII, 19. Sec also Jl.STlLES OF THE Pe.VCE, III. SecX'UITY I'OK C0.STS. ((/) iriiii Entitled, (b) Jlozi! Obtained. (r) Plaintiff's Ri'sidrncc, Proof of. ((/) Perm and Sufficiency. (e) Stay of Proceed in f;s Pend- ing .l/'plication. ( f) ['aynient inlii Court. (A') l\iynicut Out of Court. ill) I'urtlicr Security. ( (' ) Discharging Order. (j) .Ipf^eals. (a) Who Entitled. (aa) Real Property Act. (bb) Xo Defence to Action. (cc) Real Estate Within Pro- vince. (dd) Nominal Plaintiff, (ee) Foreign Corporation a Plaintiff. ( ft ) Pending Summons for Judgment. (aa) Real Property Act. Issue.] — P,. applied for a ccrtiti cate of title. McC. filed a caveat, and an order was made for the trial of an issue in which he was made plaintiff. B. applied foi security for costs. Held, that B. was in reality the plaintiff, and could not obtain secur- 173 COSTS. 174 itv tor costs. , J/O. McCarthy v. Ihul^lcy. Petition.] — When a ])ctition is tiled by a caveator under The Real Priiperty Act, and the petitioner re- sides out of the jurisdiction, he nnist give security for costs. If the respondent shows cause to the petition without asking for se- curity, he therehy waives the right to it in respect to that motion. Sciiiblc. this may not waive the right to security in respect of an is- sue to try questions arising upon the petition. Ross V. M(>i\i;au, \'1I, 50,V (hh) No Defence to .Action. No Defence to Action.] — //,•/(/, tl-.at ;i defendant has im right to se- cf.rity for costs, unless he has a tle- leiice on the merits. Tlir Wrstcni P.lcctric Light Co. v. McKcncic, II, No Defence to Action — D«u!>t.] — L'pnn an apiilicaiion fnr security fi'r costs, the plaintiff cainiot (nther than in jiroof of defendant's admis- sion) file affidavits in i)roof of his cause of action and oblige the de- fendant to show that he has soiU'' defence. An action was brought upon a foreign judgment. Upon an arplication for security, the plaintiff filed a certified copy or exemplifica- tion of the judgment. .The exist- ci:ce of the judgment was admitted |iy the defendant, and he did not al- kge i)ayment of it. //i'.'(/, that as there might he some flotibt upon the construction of the .ii:dgnicnt as to whether it was of ^iicli a nature as to raise an imi)lied promise to pay it, the defendant was tint tci be deprived of liis right to sc- ctnitv. The British Linen Co. v. Md'iea'i. VI. 2Q. (cc) Real Estate Within the Pro- vince. Not an Answer to Application,] The ownership of mn'ncumbered i\ai estate within the Province is Hit sufficient answer to an applica- t'"n for securitv for costs. .\ mort- gage to an officer of the Court upon such real estate may be sufiicient se- curity. Caston v. Sc"tt. I. 117. An Answer to Application. ]_ The ownership of unincumbered real e-tate within the Province may l)e a sufiicient answer to an application for security for costs, based on the plaintitT's non-residence, diston- v. ■S'colt. I M. R. 117, not followed. Wood v. CiiiiUctt. X, 570. Proof of Value.]— The plaintilT, who lived out of the jurisdiction, moved to set aside a pr.ecipe order for security for costs on the ground that he owned real estate of suffici- iiit value within the jurisdiction to secure costs. The affidavit in sup- port of the motion alleged that half a section of land in the Province wa,^ vested in him, and that, ac- cording to the best of his knowledge, information and belief it was worth S.',.ooo, and that it was unincumber- ed as he was informed and verily believed. Held, that such affidavit did not ci;mply with rule 500 of The Queen's P.ench .\cl. 1S03. .as it did not give the plaintiff's ground of be- lief, and that there was no sufiicient evidence to suiiport the phiiiitiff's aiii)lication. Hohson \. Lcask. XI, (dd) Notm'nal Plaintiff. Action for Benefit of Others.] — I'pon an application for security for costs, it appeared that the plaintiff had assigned the cause of action to three persons. .After the application had been made, two of these per- sons re-assigned to the plaintiff. Held, that no order for security should be made; although had one e.xisted it would not. under such cir- cumstances. ha\c been discharged. F.:\ins v. Boylr. V. 15J, Assignment of Cause of Ac- tion,] — A plaintiff having assigned his cause of action, the defetidant is entitled, upon discovery of the fact, to security for costs, if he move promptly, notwithstanding that he tuay. by dulay. be disentitled upon l»f :■ ' m IW COSTS. m oilicr grounds. Fiviaii v. Plaxton. 11, 124. Assignment of Cause of Action as Security Only.)— ,\ plaintiff or jKtititjncr will not bu ordered to give .seeiirity for costs on the ground that he is insolvent and lias assigned the claim, if the assignment was only given as security and he is still in- terested in the collection of the money. Shields v. McLaren, IX, Sec also Martindalc 338. V. Conklin, I. h \: i- (, (ee) Foreign Corporation as Plaintift. Foreign Corporation.] — i. A Company must be said to be resi- dent at its head office. 2. If the head office of a plaimiff Company be out of the jurisdiction, l^riiita facie the defendant is entitled to security. 3. The plaintiff Company, resident in England, was being wound up there under the statutes in force in Eng- land. Held, that the defendant was en- titled to security for costs, even al- though the Company had large as- sets in this Pro\ince. 4. A serious doubt as to there l)e- ing an etTeetive remedy if defendants obtain a judgment for their costs, warrants the m.uking of an order for security. 5. Security ordered with stay of proceedings, although the plaintiff was upon the point of go- ing to trial. 6. A winding-up order is not of itself a stay of proceedings, and notice of trial given after such order will not on account of it be set aside. Xorthzeest Timber Co. V. McMillan. III. 277. (ff) Pending Summons for Judg- ment. Security to be Given First.] — Where a summons was taken out to enter judgment, and during the pendency of such sunnrions. a sunn- mons for security for costs was served, that security must be given before the defendants can be called on to show cause to the suinmons to 176 Rainv enter judgment. Taylor v. Lake Lumber Co., I, 240. (b) Hole Obtained. (aaj Praecipe. (bb) Delay, Effect of. (aaj Praecipe. Power to Issue.]— The Clerk of Records and Writs has i)ower to is- sue, upnn i)r;ecipe, an order for se- eiirity for costs, where from the bill the plaintiff's residence appears to be without the jurisdiction. Bavncs V. .^L^tcali. IV, ^5. Power to Issue.] — Waiver.] — i. A pnecipe order for security for costs may be issued by the Clerk of Records and Writs. 2. The defend- ant obtained a prrecipe order with a stay of proceedings. The plaintitT. treating that order as a nullity, noted the bill fi'o confcsso. Tlie defend- am llien ajiplied to the Referee lor aiiOiher order for security. This order was granted. The plaintitt ai^pealed upon the ground that the bill was pra confcsso, and that the defendant had waived his riglit to security by having ])reviously made an application to stay all proceed- ings until the costs of a prior suit ha(i l)een paid. //('/(/, I. That the prrecipe order was valid. 2. That the Referee's or- der for security should be reversed. ,?. That the defendant had not waiv- ed his right to security by moving to stav proceedings. Bavnes v. Mct- caU\ III, 438. (bb) Delay. Effect of. Not Aware of Facts.] — After de- fendant had obtained a postpone- mtnt of the trial, and had applied for and been refused a further post- ponement, he applied for security for costs, alleging that lie had only learned a few days before luoving of the fact of the plaintiff's absence. Held, that the application was not too late, Carnithers v, IVaterous, IV, 402. 1' i': 17 COSTS. "8 Extension of Time.] — Sec Os- borne V. Iiibstcr (Infra), IV, 399. (c) Plaintiff's Residence, I'roiif of. Alilioiigh tlic rule is that upon an application for security for costs up- on the ground of tlie absence of the plaintit'f this absence nnist be posi- tievly sworn to, yei where in tlie same action tlie plaintiff had iiled an affidavit describing himself as of a place without jurisdiction. //.'/(/, that the absence was suffi- cieiuly proved. I'uir v, O'Brien, 111. 080. (d ) form and Sufrieieney. Affidavit of Justification — lix- eiii lotion — Extension of Time.] — An order was made directing secur- ity to be given, within a certain time, tu the satisfaction of the Master. Plaintiff l)rought in a bond with one surety who justified in $400 over his ji'si debts, but said nnthing abmit exemptions. The defendant tiled an aftidavit impeaching the surety's sol- vency. The Master disallowed the bend. Held. I. That the Master had act- ed properly. 2. That further time should noc be given unless upon ma- terial sufficiently explaining the de- lay, etc. Osborne v. Inkster. IV, m- ((•) Stay of Proceedings Pending Aftlication. Summons Served Too Late.] — A summons for security for costs was returnable the day before the day for which the argument of a de- niurrer had been set down. It had been served late on the previous day. An enlargement of the summons w.is granted, and the Judge refused meanwhile to stay the argument of the demurrer. Hooper v. McBcan, III, 682. (f) Payment into Court. Money in Lieu of Bond.] — M'lney paid into Court in lieu of giving a bond for security for costs will be ordered to be paid out in sai- istactioii of in',erl()cut(.)ry costs Sutherland v. McKinnon. Ill, 608. Not Less than $400. ]— The Re- feree having made an urder that se- curity for costs should 1)e given "in accordance with the usu.nl pr;iclice of this Court " — Held, that he could not permit the |)lamtiff. in lieu of giving a bond, to ]>ay into Court a sum less than $400. .Me.Mieken v. The Ontario Ihsnk, \'\. 175. ig) l\tyment Out of Court. When Declaration Not Filed Within One Year. | — The plaintiff did not declare within a year after the writ was reiurimble. He after- wards apjilied for payment out of Court of $200. paid in as security f(/r c(ists. //('/(/, I. That although the i)laiii- tiff is out of Court after the ex[)iry of the year, yet if he files his declar- ation it is irregular only, and not \(iid. and the irregularity may be waived. 2. That the defendants could not sign judgment of non pros. so as to t;ix costs. Cooper v. X'ias, .^ B. & Aid. 271. followed. .^. Al- though the defendants could not have sued on a bond for security nor made a motion to have any of tlie money paid out to them, yet the not have an order out to him without defendants, and tie- impose the condition lie first paid. Dick- Res eri'C fund Life Iilaintiff could that it lie paid the consent of fendants might that their costs son V. Mutual .Issoeiatiioi. \TI. 125. Appeal to Supreme Court — Re- taining Money in Court Paid in by Successful Party.] — A plaintif? who has been affirmed on appeal to the I'"ull Court, is entitled to have paid out to him the money he had paid into Court as security for costs, not- withstanding an appeal by defend- ant to the Supreme Court of Can- ada. Hamill V. Lilley (1887), 56 L. T. N. S. 620, and ^larsli v. Webb mm 179 COSTS. 180 I >v (iS'MJ). IS P. R. 64, followed. Jhiv V. A' »//.•(/ (,'«•, XII. 451. (/( ) Furtlwr Security. What Must be Shown.) — Al- though an order for security fur costs has liceii made and complied with, an order for furtlier security can lie granted upun a proper case heing made. On an application for furtlier se- curity, defeni'anl.s must show that tlicy could not liavc foreseen that the cause was one in which security tn a l.'irKcr anutunt than that usually ordered would have heen i)roper. In this case the defendau' failed to sliow that costs alreatly incurred. and to which they were entitled, had cxiiausted tiie security already given. Application refused. Hrll v. I.aii- (idv. Q P. R. 100. followed. Charh'- l">is v. Great Xortlm'cst Central Railway Co., IX, 60. (■/) nisch,irriinp, Order. On Return to Jvirisdiction. ] — .\ plaint ilt cdiiiing to reside within the jurisdiction after an order for secur- ity for costs has been made against him, cannot get tlie order rescinded without convincing tlii> Court that his intended residence within the jurisdiction is to bo of a more per- manent character than for the tem- porary purpose of enforcing his claim by .'iction. llozvard v. Hoiv- ard, 1,0 L. R. Ir. ^40; Westeiibergx. Morlimore. 44 L. J. C. P. jHq. L. R. 10 C. P. 4,-^S. followed. Cardiiic^ly v. Johnson, XI, 4. Permanent Return.) — When an order for security for costs has been made and security .actually given un- tler it, the order will not be dis- charged on the plaintiff returning to reside permanently in the Province. Senihle, it is otherwise if the se- curitv has not been given. Brozcii v. S'liantc, VII, 42. (;■) .-i luteals. faa) Equity. (bb) Supreme Court. (aa) F.fiuity. Deposit of $40.) — In equity, where ;i party appeals to the Full (I'tirt fmm an order of a single Jtidge overruling or allowing ;i de- mtiirer, he nuist pay into Cyurt the Usual deposit of $40 as security fur co>ts. ll'illianis x. Ma,^ee, VIII, 17. Demurrer.) —In etpiity. where a party appeals to the Full Court from an order of a single Judge overrul- ing or allowing a demurrer, he must pay into Court the usual dejiosit of $40 as securitv for costs. irHlianis V. Ma<:ee. \\\l. 17. (bb) Supreme Court, Form of Bond_.S'/.v/(- of Cause.] — On an applicatinn for the ;dl(3w- tince of a bond f(ir security fur the costs of an appeal to the Suiireme Court, the (nuis of satisfying the Court of tile sufficiency of the secur- ity is upon the appellant. Such a bund ought to be in fa\or of the re- spondent atid not I if the Registrar i>\ the Court. One surety may un- iler certain circumstances be eflici- ent. .Ittoniey-General v. Poiiseea. y, 300. .V :uay be ^ei-otY agaitist interlocutory costs. If the right ot set-off be coiuested, the successful party may be entitled to the co>ts of the application. Real lislate Loan Co. V. .\loleszeorth. Ill, lyu. Former Application. | — A set- off of costs of a former application against those of a later one. can only be allowed as part of the order made on the later application, or upon a special application after both sets of costs are t;ixeil. Mell'illiams v. Bailey. IX. 563. See al.u) }v\i\. VI. Ckoss-Reff.rences. See .XiriDWiTs. Ill; Ai'im.ai.. IX; Att.xcu.me.nt or- Picrsox. Ill; Attornkv - (Iener.m. : Cori'or.\- TioNs. IX. (/'). (e) ; CorsTV Coi-Kis. I, (/'). (>•), V; Crim- i.vAi. Law, I; Damage.s; Exe- cutions. II; Ix.n'NiTro.N'.-^, I, III; [\Ti:ie set up hy way of counter- claim or set-off, unless the circum- stances he such as to permit uf an action heinp; hrfiught u[>on it. Con- adiaii Bank of Com mow v. Xortli- ti'0()(/, V, 34J. Striking Out Where Jury Ne- cessitated.! — In an action for pos- session of land hy a landlord against his tenant, the defendant may counter-claim against the plainiit'f for damages for illegal seizure, dis- tress and sale of his goods under an alleged claim for rent of th.e same land ; and the paragraph of the state- ment of defence setting up such counter-claim will not he struck out on the ground that it raises an issue he tried bv a jury. riiipps. Q P. R. 240, Camci-nu. 10 P. R. Goi\.-a\tlock V. Fcrrv, which should Dockstadcr v. and Goriiif; v, 406, followed. XI, 257. See Jury. COUNTY COURTS. I. Al'I>E,\LS. II. Judgment. III. Jurisdiction. IV. Pleading. V. Prohibition. VI. Tr.\nsfer of Actions. I. .Al'l'EAIS. (((j /[■/(.■)( Will Lk: {b) I'liUticc. ( Mibsiituted by section 24,^ of The County CourtV Act, 1887. Held, that there is no .ippeal in an action of replevin, because the ques- tion in issue is not a money demand, but one of title to goods. The defendants then applied to the County Court Judge for leave to ap- peal to the Court of Queen's Bench under section 244 of The County Courts Act, 1887, and leave was re- fused. They then applied to a Judge of the Court of Queen's Bench for leave to appeal. Held, that the Judge of the Coun- ty Court exceeded his powers in en- tering a verdict for the plaintiff m- stead of granting a new trial, but that, under the circumstances, tlf defendants having little means an no apparent defence, it was i interests of justice not to alio litigation to be prolonged, ana leave was refused. Haddock v. ku/- sell. VIII, 25. (bb) From Interlocutory and Final Orders. Unnecessary Order.] — No appeal will lie from an order of a County 185 COUNTY COURTS. 1S6 C"urt JihIko (liri'oiiiiK tin.' C'lfrk tci «i^'M .'I jlulKllKMlt. wllioll, witlKUlt siidi order, lii.' slimiM luivi; si^'Ucd. luiir V. t7(i>7,', V. 130 Final Order o' Judgment — .liiiiiuiiiiciit — 77;»('. I — All (irdcr 111' :i Cniiiity Court JuUkl' ;il iln- trial nf ;ill acliiiii jjivin;.; llic plaiiiiiff leave til aineml liis particulars of claim inir^uaiil to .sectimi .^jo of The e'l'iiiity Courts Act, K. S, M , c. ,^3, arui (imviiliiiK tliat defeiulant should liiive tifteeii tlays to put in a dispute luue to the amended claim, ami th,u, ill default of such lieinjr put in, jiul^f- iieiit miKlit he signed for the i)lain- lit'f for the full anil Hint claimed, is a tir.al order < Graham v. Harrison, VI. 210. From Ex Parte Order Setting Aside Judgment — On/i'r.s-. | — Un- iJiT 54 \'ic.. c. _', s. _'i, suhstituted for "tctioti -'4,^ of The County Cniiris Act, 1SS7, there is an appeal to a .hulgc of the Court of Queen's Hmcli frdiii any order made hy a County Cnurt Judge, final or interlocuiory, ;itul wdiether upon the merits in an action, or upon a mere point of prac- tice. A judgment hy default, regu- larly signed, canni>t lie set aside ix parte, hut only upon notice to the plaintiff and an aftidavit of merits, and this rule applies to the County C'niirts as well as the Court of Queen's Bench. jl/c/viU' v. Ritiiihl,-, ■'"r, so. (b) I'raclia'. ('an Certificate of Judge. (Ill) . I'iling Evidence. I'cc) Security. Md) Apiieal to a Single Judge or Full Court (aa) Certificate of Judge, Mandamus.] — Proceedings in ap- |ie,il frnin the Cnuiity Court had hecn taken ai'd ,in unsigned certiticiie of the Cninity Judge filed with the I'ro- tliiitintary within the |iroper time,, under the helief tli.ii it had heen pro- perly sigiud. L'|ion discovery i Mgiiature. I ie refusi'd. //- before the hearing of tlie appeal, it was dismissed with costs. Burke V. Dron'ii, IX. 305. (cc) Security. Time for Giving — Notice of .Setting Ih)ieii.] — This case was tried ifif; 187 COUNTY COURTS. 188 before the Judge of the County Court of Marquette, who entered a verdict for the plaintiff on May I2th, 1890. The defendant apjjiied for a reversal of the judgment, and the application was dismissed on July 3rd, i8go. The defendant served notice of his intention to appeal to the Court of Queen's Bench on July 12th, but the security was not perfected until Sep- tember loth. Uiid (Killam. J., dissenting), that .section 243 of The Coimty Courts Act. 1887, taken in connection with the other provisions of the Act re- lating 10 Appeals, reciuires the secur- ity to be perfected within ten days after the decision appealed from. Scmblc, per Bain. J. — That no no- tice of the setting down need be given. Per Killani J. — There is no definite limit of time for giving sc- ciirity on appeal fixed by The Coun- ty Courts Act. Mnlvihill v. La- cluitne, VII, 189. Payment into Court — .][oiiey In- stead of Bond.] — Upon opening of the appeal, it was objected that no bond for security for the costs of tlie appeal had been given. It appeared, however, tha,t security had been giv- en by payment of money into Court. Held, where the necessary sum has l;ecn paid into Court or (jther secur- ity given with the sanction of the County Judge, and he has certified the case to this Court, the giving of a bond is not unde'- the ])resent Act a condition precedent to the hearing of the appeal, and, as it is admitted that the money has been paid into Court with such sancti(jn. in this case the hearing of the appeal should be proceeded with. Gcrrie v. Clies- ler. V, 258. Payment into Court — Condition Preeedent.] — By the County Court Act. 1887, the giving security for. or depositing in Court, the amount for which judgment has been recovered, and a sum sufficient to cover the pro- bable costs of the appeal, is a condi- tion precedent to the right to appeal. An objection that such conditions have not been complied with may be taken when the appeal comes on to be heard and may be supported by affidavits. Malum v. Inbster, VI, (,dd) .-\ppeal to a Single Judge or Full Court. More Than $50.]— The plaintiff's claim was for $70.70. but he only recosered judgment at the first trial for $47.70 and costs. This was set aside and a new trial granted, when defendant conuiienced appeal ptn- ceedings. .Vl the second trial the plaintiff had a verdict for $67.50. Held, that the appeal was rightly brought to the Full Court under R. S. ^l.. c. 32. s. 315, as re-enacted by 59 Vic. c. 3. s. 2. Hutehinson v. Colby, XII, 307. See Ari'E.\L, I. See Costs, II. ((/). II. JUDG.MEXT. Entry in Procedure Book.] — The record of a judgment of the County Court is the entry thereof in the procedure book. Lu]in v. W'in uipei^ II, 225. Entry in Procedure Book.] — The n.ite or memorandum of a Coun- ty Judge is not. Init the eiUry of the Clerk in '' e procedure book is, the iudgmen* iie Jovee &■ Searrv. \'[. 281. III. JUKISDICTION. (a) Judgments Six Months Old. (b) Equitable Jurisdiction. ((•) Cause of Action. id) Title to Land, (e) Unsettled Accounts. ( Poreign Defendant, (g) Deducing Verdict. (//) Ti)ne for Objection. ^^•ff^ 189 COUNTY COURTS. 190 [a) Jtidgniciils Six Months Old. Setting Aside Judgment.] — A County Judge, under section 308 of The County Courts Act, has no jur- isdiction to set aside a judgment or cntertai.i an r -plication for a new trial or rehearing after six months from the date when the judgment or decision was pronounced or given. Grundy v. Macdonald, XI, i. (b) Equitable Jurisdiction. Damages not Legally Charge- able.] — Action upon a note given for a binding machine. Counter-claim for non-performance of an agree- imnt to furnish repairs. By the written contract provision was made for the case of defective portions of the machine. The evidence did not ^uppcirt a case under the written con- iract, and the agent who was alleged til have made tlie verbal agreement had no power to do so. ilrld. I. That under C. S. M., c. 3^. s. 41, authorizing " in any case not expressly provided for." the ap- plication of " the law and the gener- al principles of procedure or practice in the Court of Queen's Bench," the County Court had jurisdiction to consider a counter-claim sounding in damages. J. Tliat tiie defendant, having no right acknowledged by the principles of either law or equity, the Judge of tlie County Court had no l>ower to award him damages under the Act, authorizing liim " to make sui'h orders, judgments or decrees tlnrenpon as appear to him just and riprcLable to equity and good con- -cience." O'DonoUuc v. Fonscca, 1\', 469. Specific Performance.] — A C-unty Court Judge, liaving no jur- isdiction to decree specific perform- ance of an agreement for the pur- chase of land, cannot take notice of the doctrine that equity looks upon that as done which ought to be done, and give relief accordingly. Foster v. Reez'es (1892 2 Q. B. 255. Mc- .U;7/((;r v. Williams, IX, 627. Rescission of Contract,] — In the County Courts the rules of equity as to the rescission of contracts pi-evail rather than the rules of law. Wat- siDi Manufacturing Co. v. Stock, VI, 140. Reformation of Contract,] — Ctiumy Courts in Manitolia have no jurisdiction to rectify written instru- ments for fraud or mistake, or to en- tertain an action for the recovery of iiKiney paid under the strict terms of sncii an instrument. The provision in section 70 of The County Courts .\ci, that the Judge "may make such orders, judgments or decrees there- tipon as appear to him just and agreeable to equity and good con- science," applies only to orders and decrees in actions within the juris- diction of the Cnun as defined by -eclion 60, ami deals oidy with the l)raciice and procedure in such ac- lifins and with the manner in whicii ihe Judges are to dispt>se of such ac- ti(.n^. at the trial, and section 60 only gives jurisdiction in personal actions, w hich constitute one of the three di- \isions into which civil actions main- tainable in the old common law courts were divided, and the expres- si<)ii cannot he construed to include a claim to reform or cancel a deed for fraud or mistake. The pl.'iintiff had. by mi>take. giv- en the defendants a chattel mortgage for an amount larger than lie really owed them. Under threat of seizure he after- wards jiaid the full amount mention- ed in the mortgage, and then brought this action to recover the excess. Held ( Dubuc, J., dissenting), that the County Court has no jurisdic- tion to entertain such an action, and a non-suit should be entered. Crays- ton v. Masscy-Harris Co., XII, 95. (c) Cause of Aefiou. Whole Cause of Action.] — " Cause of actinn " in The County Court Act means the whole cause of action. An action may proceed in a Court other than the one of the dis- trict in which the action arose, (i) by leave of the Judge previous to conmiencing the proceedings, or (2) Ml 191 COUNTY COURTS. 192 m by transfer from that district after action comniienccd. U'rii^lit v. Arn- old, VI, I. {d) Title to Land. Covenants. |— 111 an action upon a covenant in a deed against encum- brances — Scniblc, the title to land woulil be in question. Re Ardagh. IV. 509. Bona Fide Dispute.] — In order to oust the jurisdiction of the Coun- ty Court on the ground that some right or title to land is in question, it must be shown that there is a ho)ia fide dispute, and when the Judge has found a verdict for the plaintiff, it will be assumed tiiat he had inquired into the matter and decided that there was no such dispute. McMil- laii V. Jl'illiaDis, IX, 627, Bona Fide Dispute — Effect of Dispute Xote.] — The plaintiff, a rural municipality, sued the defend- ant in a County Court for the taxes on ;i half-section of land for the years uS88, i8Sq, iSgo and 1891. Tlie defendant admitted that he held that land as homestead and pre-emption, and paid into Court the taxes for iSgi, and defended as to the taxes for the other years. In his defence note, the defendant took objection to the jurisdiction of the Court, on the ground that the title to land was in question. That as the defendant admitted his homestead and pre-emption right, no question of title was in dispute. The question was one of law upon uiulisputed facts. That a dispute note does not stand in the same position as a plea at law under the old practice, and that the Judge originally and the Court on motion for prohibition, must enquire into and determine the question as to whether there was a real dispute concerning the ownership of the land, upon which the liability of the defendant was contingent. The Rural Munieipalitv of South Norfolk V, IVarren. VIII, 481, (t') Unsettled Accounts. Abandoning Excess. ] — Section 45 of The County Courts Act, 1887, provides that " no greater sum than $250 shall be recovered in any action for the balance of an unsettled ac- count, nor shall any action for such balance be sustained where the un- settled account, forming the subject iviatter to be investigated, in the whole exceeds $400." Sub-section i of above section pro- vides that " a claim in contract for any amount may be used or pleaded as a set-ofT in the County Court, provided the excess over $250 is abandoned .... Provided that in no case shall a greater amoimt than .'r250 be recovered in the County Court. Held (Killam, J., dissenting), that where the balance of an nnsettleins v. Clnnl:<'irt, Mil. 213. Lack of Jurisdiction Not Ap- pp.rent — Piscri'tiaii — .lincndnici:4.\ — Where the want of jurisdiction (jf ;in inferior Court does not appear on the face of the proceedings, and tile a]>plicatioii for prohibition is not made until after the judgment or verilict in that Court, the ai)i)licaiit is not as of right entitled to tlie writ, but the Su])enor Court has a discre- tion to refuse it if it seems inequit- al)Ie to grant it. ]n this case the objection to the jurisdiction was on account of the residence of the defendant being in Onttirio. but such objection was ii"t taken in the dispute note. althout:li such ground of defence is one ilia; slunilj be ttd'Cen thereby. The Judge of the County Court before whom the tiction was tried refused to allow an amendment setting up the objec- tion. The claim was not a large one. the plaintiffs had apparently gone to crnsidcrable trouble and ex- pense to meet the defence raised ir. the dispute note, and the defendant had not accounted for his failure tu object to the jurisdiction by his dis- pute note, or to come into this Court before judgment and ask for pro- hibition. Held, that under these circum- stances the Court, having a discre- tion, should refuse the writ of pro- hib'.^on. Held. also, that the rule for pro- hibition should have been directed to the regular and duly appointed Judge of the County Court, and not to another Judge who had merely acted for the regular Judge at that particular trial, and who was now m ^""Pf«p 197 COUNTY COURTS. 198 ji:iu-lHS officio. Tlic objection, ln.w- cvcr. was not raised on the applica- tif'ii l)efore a single Judge of this Court, and the Full Cnurr did not decide whether it should give effect t'l it on re-hearing, as prohihiti.m was refused on the other grounds. yh.ixwcll V. Clark, X, 406. Lack of Jurisdiction Not Ap- parent — ■ [)iscrction.] — This action was commenced in inhe County t^'curt of Brandon on a promissory iK'te dated and payable at Winnipeg. In the writ of summons the defend- ain. the maker of the note, was de- scrilied as " of Carberry." where he rt'^ided. A dispute note was filed slating tliat defendant was U'lt in- debted to the plaintiff as alleged. When the case came on for trial, the defendant was not present or re- presented by any one. A verdict was then 'entered for the plaintiff, but as, from circumstances connect- ed with the service of the summons, it seemed possible tliat the defend- ant might have been misled as to ihe date of the trial, the Judge stayed proceedings until the next Court to permit him to apply to re-o|H!i the case. On the next Court day, flefendant applied to have the case re-opened, and to amend the disunite note, hav- ing given the plaintiff's solicitor no- tice of his intention to do so, and at the same time he raised, although not by dispute note, the ciuestion of jurisdiction, claiming that the want of it was apparent on the face of the pmcecdings. The Judge re-opened the case and directed it to be tried at the next sitting of the Court, al- lowing an amendment of the dispute note so as to raise soinc proposed defences, but refused to einertain the question of jurisdiction, holding that defence to have I>een waived. .'Hfendant then moved for a writ of lifohibition. 1 1 lid, that the want of jurisdic- tion was not apparent on the face of thf proceedings, as there might be a p!ace called " Carberry '' within the Judicial Division of Brandon, so far as the Court knew ; and, following Maxzi'cll V. Clark, 10 M. R. 406. and (.lihhiiis V. Cluidivick, 8 ^I. R. 209. the Court had the discretion to grant or refuse prohibiton, which should, in this case, be ex'..rcisid in fav ir of j)laintiff, as it was not a case of a total want of jurisdiction in any County Court, but only a question as to which particular Court could en- tertain the case. Elliott v. ^Jay, XI, 3o( I. After Judgment — Uiscr.'tii'ii.] — The plaintiff sued the defendant in a County Court, within the juris- diction of which he did not reside and the cause of action did not arise. The defendant did not file ;i dispute note. ])Ut notified the plaintiff that he disputed the jurisdiction of the Court, and intended to .'ipply for pro- hibition if the action were persisted in. Notwithstanding this notice, the plaintiff proceeded to judgment. The dtfendant tlten applied for prohibi- tion. Iliiil. that the defendant was en- titled to the iirohibillon with costs, altiiough he did not show a meritor- ious defence. Held, also, that when tlierc is no- thing on the face of the proceedings to show want of jurisdiction, and the objection arises only upon show- ing the residence of a pavty and the local origin of the cause of action, and the facts are not Drought for- ward until after judgment, the grant- ing of prohibition is in the discretion of the Court. Robertson v. Corn- zecll. 7 P. R. 2Q7, followed. Ruther- ford v. Walls, VIII. 9'j. After Judgment _ Acquiescence — Discretion.] — G. issued a writ in the County Court of Selkirk against C. iov breach of contract. C. lived in Ontario, and the cause of action arose there. G. obtained an order from the County Court Judge al- lowing service on C. out of the jur- isdiction, on an affidavit tnat C. had assets in Manitoba to the \alue of $200 at least. C. then applied to have the writ and service set aside for want of jurisdiction, but the ap- plication was dismissed. Counsel for C. attended at the trial, and again objected to the jurisdiction, but i" 199 COUNTY COURTS. 200 m^i cross-examined plaintiff's witness. A verdict was entered for the plaintiff. Afterwards counsel for defendant obtained a sunnmins from the Coun- ty Court Judge to set aside the ver- dict, on the grounds of surprise and want of good faith. On this appli- cation no reference was made to the question of jurisdiction. While this motion was i)ending, defendant ap- plied to this Court for ])rohibition. Held, that the defendant, haying taken exception to the jurisdiction. had not Inst his right to prohibition merely because he allowed tlie case to be tried and judt^ment signed, ■especially as on the trial lie still took exception to the jurisdiction; but that, on the sul>sequent motion to set aside the judgnunt, there was such a complete acquiescence in the juris- diction Willi full knowledge of the facts, that this Court should not in- terfere. //(•/(/, also, that the provisions of section "^2 of The Administration of Justice Act, i886, (R. S. M., c. I, s. 24). for allon-ing service of writs of simmions out of Manitoba, do not apply to the County Courts. Gil>- biiis V. Cliad^ccick. VIII. 209. After Transfer.] Cliisholin, \'II. 502 — .S"i'i' Labbatt v. (Infra). Costs.] — Where a party applies for prohibition without raising the question of jurisdiction in the Court below and having it decided there, if no cause be shown to tire rule, he is not entitled to costs. Masscy Man- ufacturing Co. V. Hanna, VII. 572. VI. Transfer of Actioxs. Effect of Transfer.] — Where judgment has been obtained in a County Court and a transcript has been obtained and filed in anothei; County Court or in the Court of Queen's Bench, it still remains a judgment of the original County Court. Tait v. Burns, VIII, 19. Subsequent Procedure.] — When an action is transferred from the C«--mty Court to tive Queen's Bench, imck' section 86 of The Queen's r.eiich Act. 1895. it is necessary for the plaimilV to tile and serve a staie- ment of cl;iim in the Queen's Bench before taking any other step in the cause. /'('// V. I'lox^ard, XI, 73, Counter-Claim as a Reason for Transfer.]— A defendant in an ac- tion in the County Court who enters a defence by way of counter-claim for an amount beyond tlie jurisdic- tion of the Court without abandon- ing the excess, is not entitled as of right to have the action transferred to the Queen's Bench, where there is nothing irj the nature of tlie ceunter-claim whijh puts it outside the jurisdiction of the County Court except the amount. Under section 67 of The Count- Courts Act, R. S. 'SI., c, 33, the ex- cess in amount must either be deem- ed to be abandoned (U" the counier- c'aim is improperly put in for the larger amount, and ihe defendant be transfer. Mcllruy v 164. Prohibition to County Court After Tansfer — Jud.i^nirnt Thrrc- on- in Quern's lu-nch.] — The plain- tiff obtained a judgment in a County Court by default, and then entered judgment in the Queen's Bench on a transcript of that judgment. After- wards defendant obtained a writ of prohibition against the County Court, and then moved in Chamliers to have the Queen's Bench judgment set aside. Held, that the Queen's Bench judgment depended on the one in the County Court, and, prohibition having been granted, it must be set aside, l.abatt v. Cliisholm. VII, 502. Right of Appeal from Order,] — Xo appeal will lie from an order ninde hy a County Court Judge un- der section 86 of The Queen's Beni-h Act, 1895, transferring an action from that Court to the Court of Queen's Bench, after the papers and proceedings have reached the Pro- thonotary, notwithstanding the gen- m neither case entitled to the , McEzvan, XII, ' i w^ 201 COURTS. 202 ei;il ami al)solute right of appeal ap- parently given by tlie 315th section of The County Couris Act. and iibt- uithstanding the opinion of the Gmrt above, that the order had been iniproperlv made. Harris c'V Sons V. Jud};c. (1892). 2 Q. B.. 565. fol- lowed. Doll V. Hoii'ard. XI. 21. Sec Costs. II. COURTS. I. English and Colonial. II. l'\\tTs Necessary to Jurisdic- tion. III. Oiekn's Bench. I\". PkoI'KKTY Ol'TSIDE OF JURISDIC- TION. I. English and Cdloxi.m.. Decisions as Precedents.] — Where the decisions of Courts of sister Provinces of Canada are at variance with English decisions, on fiucstions where tlie law is substantially the sruiie, in Imperial and Provincial lecrislation. the doctrine adojited by the English Courts should be follow- 1 (d. McLcuas^lum v. Hrtlu'rington. ; VIII. 357. ■ ; Decisions as Precedents.]— A Col- onial Court should follow the decis- ions of tb.e English Court of Appeal j rather than those of another Colon- ial Court. Trimble v. /////. 5 App. Cas. 352. and Ilollciidcr v. Ffoiilkcs, 2(1 O.' R. 61. follnwed. ll'ood v. Giiiilcti-, X. 570. II. Pacts Xecessakv to Jurisdic- tion. Limited Jurisdiction.] — Tri!)un- al-- iif limited jurisdiction liave im- phed authority to receive proof of the facts on which their right to ex- ercise their jurisdiction depends. Jtruck out. Conlcy v. U'cllbaiui, III, Joy. Warranty of Title — Covenant t'hit Mortgage .hsigiicil is a Good I'/iJ ralid Security — "Security," Mcuiiiiig of.] — A covenant is an as- sitrniiK'nt of a mortgage of hind that the mortgage is a good and vaHd security does not mean that the mortgagor had a gond title to tlie land, or that the mcjrtgage is effec- i;ve to charge I'e- land with paymeni 111 tlie mortgage moneys, hut only that the instrument is a genuine one (If.ly executed hy the mortgagor, and that there is nothing to affect its \;!!ir payment of the deht assigned. Meaning of the word '" security " lli^c^Issell. Mefiiean v. Henderson, X. ?oj. II. l)l-:i'l-..\!iENT .\XI) IXDEPILMIKNT. Building Contract — Payment by iiishi!;nents.] — To a decIar:ition in uii action for breach of a comraci contained in an indenture, whereby the defendant covenanted to build a b.ouse for the plaintiffs, the defend- :nu pleaded that the plaintiffs had, liy withholding the monthly priyments due to the defendant, contrary to the tu-ms of the indenture, and liy their architect refusing the monthly esli- ii'.ates, etc.. hindered and obstructed the defendant in the pro.-ecuiion of the work, and thereby, of their own wrong, caused the breach complain- ed of. //('/(/, on demurrer to the picas, that the performance of the defend- ain's covenants was dependent npon the performance of the plaintiffs', 'nd therefore the pleas were a suffi- tieiit answer to the declaration. ilcskins V. Barber. T, \V., 264. Street Lighting Contract — '■h'nilily Payments.] — C. agreed with the City of \V. to pri)vide elec- !iic ligiits for street lighting in W., and U]) to the expiration of >ix years to keel) them lighted from darkness to daylight. In cnnsideration there- of the City agreed to make monthly payments; that C. should have the sole right and privilege of lighting the streets, and that the City should not contract with any other person for lighting the streets during the said iieriod. //('/(/, I. That the agrecnrents were dependent, and thai if C. failed to perform his i)art of the agreement, and the City made a new cnntract with other persons, he could imt re- cover against the City. 2. W'hetiier covenants are dependent, or inde- pendent, is determined l>y the inten- tion of the parties and the applica- tion of comnuin sense to eacii |)artic- ular case, Manitoba Electric Light and Pozcer Co, v. The .]fayor and Council of the City of \Vinnilarty nf the first part the said sum of money, together with till' interts* thereon, on the days and times and manner above mentioned, .•nid also siiall and will pay and dis- ch.arge all 'laxes. ... In considera- tion zehcreof and on f^ayment of the said sum of nii>;:ey leith interest as aforesaid and. in manner aforesaid, tlu -aid party of the first part doth ci ■\ enant. promise and agree to and u ith the said party of the second pari to eoni'cy ai'.il assure or cause to be conz-eyed and assured to the said party of the second part, his luirs and assigns the said pieces or parcels of land and shall ami will Miffer and permit the said [jarty of the second part, his heirs and assigns, to occupy and en- joy the same until default," etc. Then followed a provision that tinv; \\;is to be of the essence of the con- in ■Ijil 807 CRIMINAL LAW. tr;ict, ;m(l tlial unless payments were pnnctually made, tlie plaintiff might reenter on and re-sell the lands, and all payments made were to he forfeited. //(•/(/, tiiat the covenants were in- dependent covenants. 'l"he i)urchaser was hoimd, on his covenant, to pay the purchase money hefore the vendor cuuld be compell- ed, on his covenant, to convey the propt'riy agreed to be sold. 'I'lie intention of the parties, as far a- it can he gathered from the word- ing of the covenant, must be given the greater weight. MacArtliur v. Lcckic, IX, 1 10. III. Breach. Excuse for Non-Performance.] ■ — '1\) a declaration on a covenant contained in a lease, whereby the de- fendant covenanted to irect a fence around the demised premises during the term, the defendant pleaded that he w;is always ready and willing, etc.. hut the plaintiff wrongfully de- prived him of, and converted to his own use, a quantity of lumber with v.-hicii the defendant intended to fence, etc.. whereby t!ie defendant was prevented from performing his said covenant. Ilrld, on demurrer, bad. Clarke V. Murray, T. \V.. 119. ill CRIMINAL LAW. I. Appeals. n. Arrh.st. III. CoNvirrioN ANU Commit- .MKNT. \Y. DKFENfI-:S. V. I-A'IDEXCE. VI. Limitation of Actions. VII. Nati'kf. and Elements of Crime. \11I. I'ROCEUUINGS AT TRIAL. iX. Specific Offences. X. Cross- References. I. Appeals. ((/) /'"();•;;; and Grounds of Rem- edy. {!>) Reviezu. (a) I'orni and Grounds of Remedy. Appeals from Magistrates — .Mandamus to Cunipel 'raki)i^ vf Kccii^ni.zance.] — The first clause of section 808 of The Criminal Code, iti'yj, sliould he read as if it were flamed thus: "The provisions of this Act relating to preliminary in- (juiries before Justices, except as inentirjiied in sections 804 and 803, and the provisions of Part L\T11. sb.all nut apply to any i)roceedingj under this part," and. so construed, it prevents an appeal from the decis- ion of a ])olice magistrate on a sum- ma rv trial under Pan L\' of the Code. Held, accordingl\-, that a iiianda- iints to compel a magistrate to take a recognizance on an appeal from a ciiiiviction for theft under section 783, sub-section (a) of the Code should he refused. Regina v. Egan, XI. 134- Jurisdiction of Single .Judge — Pidl Court — Praetiee — Xotiee of Motion.] — An apjilication to quash a conviction under section 3,^7 of The Criminal Code must he made to the I'uU Court and not to a single Judge. The Provincial Legislature, havini; authority to make laws respecting criminal procedure, the practice in- troduced by The Queen's Bench Act. 1895, rule 162, cannot apply to pro- ceedings under The Criminal Code. Re Boucher. 4 A. R. loi, and Reg V. Me.luley. 14 O. R. 643, followed. lleld, also, that such an applica- tion must be made bv summons or 201* CRIMINAL LAW. 1:10 rule nisi and not by ndticc <^i iiKninii, ;iml tli.'it in the rule fur lliu ccrtinr- iiri the grounds for nu)\in>; nni>t lie speciticd. I'alcy an Coii~i'ii-tii>iis (6th cd.). 457. I^cgiiui V. Bi'iilc. XI, 448. Appeal to Assizes — Jurisdiction to Try .//-/'.■(j/.J — Till' C'nurt uf Queen's Bendi at its sittings of As- size and nisi {'riits is the proper tri- bunal to hear apjieals against convic- tions and orders of justices of tlie peace, l^ose v. Morris. T. W., 368. Rule Nisi — Certiorari or llubcas Corpus.] — A rule to (|uash a convic- tifin may, in tlie first instance, he to show cause why a writ of linhcas ( r/'Ks should not issue. " and why. ill the event of tlie rule being nvu'le .-.lisiilute. the prisoner should not be disciiarged out of custody witliout the issuing of the said writ, and without iiis being Ijmught before the C'l urt." The rule may at the same time ask for a writ of certiorari as well as of habeas corpus. Kc};ina v. Cnllius. V, 136. Intervention of Attorney-Gen- eral _ h'ialit of .Ippca!.]—^. was ci nvicted under The Liquor License Act of Manitoba, i88y. of selling lifiunr without a license. The infor- mation was laid before one justice of the peace, but the prosecution was lunrd before two Justices. The de- fendant was convicted, .and a sum for witness fees was included in the cofts awarded against him. The de- fmdant obtained a rule nisi to quash the conviction. On its return Tay- ior, C. J., made the rule alis dute. At this stage the Attorney-General. although not a party to the proceed- ntrs. intervened and moved before tlie Full Court against this decision. Tlie parties to tlie proceedings did lint complain of the decision. If rid, r. That the decision of the ■ Judge, notwithstanding: this heing a criminal matter, was subject to review Jiy the Inill Court. 2. That the Attorney-General was entitled to intervene. Reg. v. Starkey, VIL 489. (/>) Re-'icze. Weight of Evidence.] -.\ finding of " guilty " will not i)e set aside up- on appeal if there be ;iny evidence to -upport the verdict. (Jueeii v. Rid, 11. .Ui. Weight of Evidence. I — .\ com- mitment cannot be (|uashed wliere the magistrate had such evidence bc- lor him as would warrant hini in committing. Reg. v. Slutw. 1\ . 404. Weight of Evidence. 1— A convic- tion will not lie inia>hed upon the weight of evidence nieiely. Senihle, a joint conviction against two members of a firm for a breach I'f the statute is bad. A' •.■.!,'. v. Lian- :iis: Reg. V. .Xez'ins: Reg. v. Lyons; J\'eg. V, Ferguson: Reg. v. .Idanis & Jackson, V. 153. Weight of Evidence — .Ihuse of I'rocess.l — L. was convicted before ihree justices of the peace of receiv- ing stolen gootls, viz., one l)edstead, knowing the same to be stolen. The bedstead was of about the v;due oi $:.23. He took it 0[)enly, and in the day time, from a room occupie pay tile costs. The conduct of the Justices in be- ing parties to such an nutrageous agreement commented on. A'l'.i,'. v. )'(>iiii!^ 5 O. R. 400; and /v'r.i,'. v. Ki-iinrdy. 10 (). R. ,5q8. aiUJioved. Rt-j^imi V. Liicnnrsirrr, VIII. t,oj. Weight of Evidence.] — Where there i.s any evidence in sup|)ort of a con\iction, the finding of the magis- trate will not be interfered with, al- though the evidence may not be sat- isfactory in the oiiinion of the Court. Rifi. V. Graiiuis. ^ M. R. is.V R^'ji- V. Ucrrcll. XII, i<),X. Evidence on Appenl — Sunday.] — Ilfhl. fnllowiiig liii'^iuiiton's case, 2 E. & I?. 717, and Ri- /), (107, that the .affidavit of the pris- oner was receivable in evidence to show that tile investig.atii'n and com- mitment had taken place on a Sun- day. R(\i^iii(i v. Carrlirr, XI. ,^,v^ Refusal to Reserve a Case — Qiirslioiis of f.d'i' not /^n'.?/;;^' »fo« //((' Record.] — G. was indicted for " assault with intent to murder." .\t the trial ccrt.ain c\i(!ence was tender- ed for the Crown, which the prison- er's counsel (ibjecied to as inadmiss- ible. The e\idence was ats against a defendant on dismissing a ride iti.u to ipiash his com iction, although he has not entered iiuo reci>gni/ance to jiay costs, if unsuccessful. Retina V. Slark-cw Vil, Au. II, Arrest. Arrest Without Warrant — Dc- tnilion of Frisi'iur.] — i. A peace oflicer wdio arrests a person, charged with ol)taining goods by false pre- tences with intent to defraud, on a refjuest by telegram from another I'mvince of Canada, wdvere the of ftr.ce is alleged to have been com- mitted, ma.v justify the arrest and detention of his (irisoner under eith- er section JJ or sectirm 55J, sub-see- tioii J, (if The Criminal Code by al- leging (<;) that the prisoner has ac- tually committed such, offence or (b) tliat he, the peace officer, on reason- .able and probable grounds, believes ih.-it the prisoner committed the of- fence charged. J. .'•cction 22 of the Code operates not merely to protect the officer from civil or criiuinal proceedings, biu also to authorize the arrest and make it lawful ; and it applies, not only v lien the arrest could be made by ar.y person without a warrant, but .il-o to cases in which ;i peace officer oidy may so arrest. ,\. I'aragr.aiih (a) at the end 'if >ub-section 7. section 532 of the Cede. ai)plics oidy to cases coming solely within sub-section 7, and it is not necessary in other cases to bring the person arrested before a justice lit the peace before noon of the day fi '111 > wing the arrest. Rcgina v. Clouticr. XII, 183. 218 CRIMINAL LAW. 214 III. Convictions and Commitments, Convictions — I'liiuwsSiiry /Vt-- ii/(//.v — .liljuuniiiiriits of llcitrina III Absence of Accused.] — i. A con- v:ciiiin in the form prcscrilit-'d by Till' Criminal Code will not W- held liiid iiccaiiM' it al>o contains rt'citals >ii..\vinK certain adjourninciits nf the lu.iriii),' hct'orc the justice tun not diiiuin^f that no adjourinneiit had littn made for a longer period ilian die ci^ht days allowed liy section ,S;", sul)-secli(in i, of The Criminal CikJc, although mure than three miiMlhs had elapsed from the com- iiuncement to the end of the pro- cu'iliiigs. Ii is not necessarily to he interred friiiii the statement of certain facts, which were not refinired to hi' stat- 1(1, that t)ther circimistances iiece>- sriry to the jurisdictinn nf the maj;is- irate did not exist, .. The hearing; liefni-i.' a Justice ti\iii>: a per.-on fi,r an oflence pun- i^liahle on summary con\iciion m;iy lie adjourned from time to time un- der section 853 of the Code, al- tlii ii,i;h the accused he not iiresein. [iioviiled the adjournments arc made m the presence and hearing of those I);:r;ies, solicitor.s or agents who are in fact nresent. Proctor v. I'jrlccr, X!i, 5-'8. Convictions — Alh\t;ati.>it of II- /iV,;/ I'nictice Without Specifying .let — Allegation of Place — finpo- si:iii)i of Costs.] — A, B, was convict- c'll of practising as a veterinar>' sur- piDn without the proper vince liad been -hown was unten;d>le. l.'ost.s, uiiwar- r.mted by statute having been im- posed. //('/(/. that the conviction was bad. h'e Hihhy. \\. 472. Convictions— /y/,n//,'.v /)/.|— .\ con- viction adjudged imiirisommMit in uner was discharged, Reg. v. Hryaitl. Ill, i. Convictions — Distress and Ini- /ris<>innent in Pefault.] — A statute permitted punishment by imprison- iiRin or i)enalty, or both. It also provided that where a Ijne is impos- ed and is not paid, a warrtmt of dis- tress m;iy issue, and after ;i return, if no suliicienl goods, the defendant may be ciunmitted to gaol. It also provided that no conviction should he (|uashed for wtiiit of form or sliould be men eil by certiorari into ;iny superior Court. .\ conviction under this statute directed t!ie pay- ment of a tine, and in default of i)ay- iiRiit, a distress, and if no goods, thin imprisonmem. //('/(/, that as there was juris- diction to award (Ii>tress and im- lirisonment, the convictinn was not iirid, although by it the jurisdiction was prematurely exercised — such award at that time was suriilusage only. Reg. v, Galhraith. \\. 14. Convictions — li.vpenses of Prose- cutor.] — The tine imi)o>cd i'v a con- viction included a sliare i>f the ex- pense-, of bringing the prosecutor as a witness from a di>;ance. //('/(/, that such inclusion vitiated the conviction. A'(',;,'. v. .Idains & Jackson. V, 15.3. Convictions — .Scale of Costs.] — As the statute authorizes the Justices to award costs, and ('oes not fix any taritif, the Justices may alhiw such costs as thcv consider reasonable. Reg. V. Starkey. VII, 4S9. * 215 CEIMINAL LAW. 216 Commitments— .l/».s-/ Show Jur- isdicliun. \ — A warrant of cunimit- nieiit which recites a conviction, niust show upon the face of tile re- cited con\iction that the offence was one over which tiie committing ntag- if-lrate liad jurisdiction. Where, tiicrefore, tlic convictinn was for ob- taining $12 by false pretences, and by sta'ute llie conviciing magistrate could onlv convict and pass sentence in case the prisoner pleaded guilty. and the conviction did not show that the piisoncf had so pleaded. //<■/<: that the conviction ought to be quas.hed. Reg. v. Collins. \', 136. Commitments — Mh.<;I Show Jur- isiiiction. I — A warrant of comniii- nienl signed l)y an Indian agent, un- der the provisions of The Indian Act. nuist clearly show that tiie agent had jurisdiction at Ihe place wliere the offence was committed, and al- though by section 8 of cap. 32 of 57-8 \'ic. (.D.). substituted for .section 117 of The Indian Act, the agent would have jurisdiction all over Manitoba. there is no ground for assuming that the otTence was committed in Mani- toba when no place is specifkd. Such a warrant cnuk! only be sup- ported under section lo"^, sub-sectinii 2, of The Indian Act. or section 886 or 88q of The Criminal Code, 1892, or amended if a proper conviction were shown. The prisoner w;is in custody under a warrant ilefective in this respect, and offered some evidence to show that the conviction w;i^ eijually de- fect i\e. //('/(/, that a habeas corpus should he issued to enable him to apply for his release. Reg. v. Kennedy. X, 33S. Commitments — Formal \' a r i - ances.] — A con)niitmem nuist agree substantially with the conviction. Formal variances are not fatal. Reg. \, Bryant. 111. i. Commitments — Habeas C<'rl^ns — Sreond dnninitinent.] — Prisoner liad been coinniitied under a war- rant, which was defective. Sttbsc- cjuent to the ser\ice on the jailor of a writ of habeas corpus he received another warrant which was regular. Held, that the second warrant of conunitment was valid, and sufficient to detain the prisoner in cuslodv. Reg. v. House. II. 58. Commitments — jrarrant.]—\Jn- dcr 31 & j,2 \^ic., c. 30, one Justice may sign a warrant of comniitment. A warrant may be partly written and partly printed. A warrant was ad- dressed to the keeper of the com- mon gaol at the City of Winnipeg, instead of to the keeper of the coni- nrm gaol of the Eastern Judicial District. Held. siitTicieni. The conmiitment stated the of- fence as follows: "On or ab )Ut the I4lh day of .Ma\-, i88(). did embe/zle the sum of $104, being the property of the Dominion Express Com])any." //('/(/, insufficient. Reg. v. Hidden. Hi. 370. Commitments — Warrant.] — A warrant of conunitment must diric; the gaoler to receive and retain the prisoner, otherwise it will be quash- ed. Reg. V. Barnes. IV. 448. Commitments — llseape — .Ww Con:ietiee .\ct. I't-r Kill.'im. J. — .-\lthough the cer- lificaie of the fnmur conviction omitted the word "intoxicating" i)efore ihe word " lK|Uor " in describ- ing the offence, yet it was not defec- tive on that account in view of sec- tions 151 and 182 of the Act and tlie wording of tlie form in Schedule K i I'ar. 2). J^cg. v. Hcrrcll. XIL lis. .Sec ii.'.s'w 1xi"oua:.\;iox. Competency of Accused. ] Ri':^. V. I'rcrn. Ml!. 5.^3. Weight of Evidence. J Sutra, sub-litle .Ai'I'Eals. - ,v.-, Si\ \'L LiMiTATiox OF .Actions. Masters and Servants Act.) — A cin\-!ctiMn under The Masters and Servants Act was quasiied on the ground, inter alia, that the complaint was made more than a year after the cause of it arose, the Act requirini^ such complaints to be made within six months from the offence charged. Mcrritt v, Rossitcr. T. W,, I. Vir. N.-^TL'RE .\Nn Elements of Crime. Constitutional Law.] — The tertn Criminal Law, used in section 91 of The British North America Act. 221 CBIMINAx. LAW. 1111. St includo every act or (uni.-sinn wl;ich was regarded as criminal by the law of the Provinces when The British Nortli America Act was ]iassed, and which was not merely ;ni offence against a by-law of a local ;a;ihiirity. Kc^. v. U'ason. ij A. R. _'ji, considered and commented on. AV,t,', V. SIhiiL'. \'II, 518. , III. Prockeui.ngs at Trial. Lack of Summons — Xoticc.] L'r,ie.-s disiiensed with by statute or \v;,ived. there must be some previous ^niVinions nr notice, to the party diarized. • f lu^ hearing of ihe charg- e- against him. This may be waived !iy apiiearing, jileading and defend- :r;j. But asking an adjournment foi ;hi purpose of procuring evidence is ii"i '!'.o. ,i- .''ily a waiver. A\',<,'. v. ire :iit:r. ill, 509. Sunday. J Judicial proceedings >liiiuM not be conducted on Sunday, ;,tul where the prisoner was commit- led for trial at a preliminary inves- ii.cfation before a magi-trali on a Sr.nday — llciil. t'hal he w;is entitled to his I'ischarge, following }hirkiilU'\[s i!.'.>ii', 9 Co.. 66. and ll'a:lc \. llusi- lirnl iif Stoke. Cro. Jac. 4^0. A'c'^'. \ Cavclicr. XI. ,^3,v IX. Specific Otfe.vcks. (rt) .Issatil!. (/') Carnal Kiun^'lcdgc. ((•) Concealment of Goods. ((/) EleetioHs. (c) Forcible Entry. ( f) Forgery. ig) Gaming. , (h) Perjury. ( i) Theft. ( j) Threats. {k) Vagrancy. (.(') Assault. Accused Not a Competent Wit- ness — . Ucs ,l;i'j-.'>;-. j — L'pi'n an iii- dicinient for assault — //(•/(/, that the accused v>a< not a conipeient witness on his own be- half, under K. S. C, c. 174. >. 216. h'eg. V. Bonter. t,o U. C. C. 1'., in; and Reg. v. Richardson. 4(1 {.'. C. R- 375. followed. A statement by a man that was assaulted, made imm<.'- diately .-ifter the assault and in the presence of the accused, is admiss- ible in evidence, J^cg. v. Drain, Indictment. Form of.] — .\n in- (liciiiieiu a. f'lliows: "That D. 1). .... in and upon one C. did make ;in assault, and , . , , the said C. did ilicn beat, wound and ill-treat, thereby occasioning to the said C. actual Ijodily harm and other v.rongs to the said C. a.gainst the f'.rm of the statute," etc. Held. I, To be an indictnient for an assault occasioning actual bndily h;rin. Reg. v. In-aiii, \'1I1, 5.^5, Trespasser— /\.'c7'!(,j(!./ to Dcj^art.]-- A trespasser upon land of which an- other is in peaceable possession con- not be convicted of an assault under section 5,^ of The Criminal Code. i.'V)2, merely becau-e lie refuses to leave upon the order or demand of the otlier; and the latter part (jf the section does not apply until there is an overt act on the part of tlie per- son in possession towards preven- tion or re noval. anrl an overt act of resistance on the part of the trespas- ser, A verdict, therefore, a.gainst the defendant for malicious prosecu- tion in char.ijing the plaintiff before a m:'.gistrate with an assault, where the plaintiff had merely refused, on the dem;ind of the defendant, to quit the iiremises upon which he was trespassing, was held to be right, Pockett v.' Pool. XI, 275, See Reg. v. Pike XII. 314. (/') Carnal Knowledge. Girl Under 14 — Form of Indict- ment.] — Indictment that the pris- oner. ■■ in and upon one J., a girl un- mm 223 CRIMINAL LAW. r24 dcr tliu age nf fouriecn years .... fc'lfiniouslj- did make an as.sault, and hvy. tile Si'id J., tlien and lliere fel- (iiiiijusly 'lid unlawfully and carnally kr.ow and almse." etc. The evidence showed thai the girl c(/i\sentcd to whatever the pri.soner did to her. and that she wa.s under i'(.urtecn >'ears of age. The jury fomid a general verdict of g'lilty Held, that there was only or.j of- fence charged in the indictment, viz., the statutory felony of carnally knowing a girl under fourteen years of ago, and that the jirisoner was properly convicted. Held, also, that the words " felon- iously did make an asstinli " cliarged no olTcnce known to the law. and shiould he treated as mere aggrava- tii.m or suriilusage. A'l'.C ^■. C'nis- Ihdiii Llacdbs' Case). \'1I. 61,^ Girl Under 14 — /■"(>)•;» of fiidict- iiinif — Ciinii'rtimi for Indecent .u,- smilt — Consent.] — Indictment that the pri-on.'r " in and upon one R., a girl undiT .he age of fourteen years, U''.Tninusly did rii.nke a:i as- sault, and her. the said R.. then and there feloniously did unlawfully and carnally know and ahuse." etc. The evidence showed that the girl was hetween the ages of eight and nine years, and that the acts com- plained of were committed with her tacit consent, which ciMisent was not procured hy force or intimidation. The jury accpiitted the prisoner of the felony charged, hut under S3 Vic. c. 37. s. [,v s-s. 4. and s. 7 (D. 1800). found him guilty of indecent assault. Held, that the conviction was right. Held, also, that the indictment, by virtue of section 13, sub-section 4, included and carried with it a charge of indecent assault within the mean- ing of section 7 of said Act, and that the consent of the girl was no bar to a conviction for indecent assault. Rc.i;. V. Brice. VII. 627. (c) Concealment of Goods. Defrauding Insurance C m - pnny. I — I'nder section ,^54 of The Criinin.al Code (iSgj). which de- clares that every one is guilty of an inflictable offence who, for any fraudulent purpose, takes, obtains, removes or conctals anything cap- able of being stolen, the prisoner was convicted on the charge that he hail concealed a rpiaiuity of his own goods captdjlc of being stolen, for the purpose of defrauding the Insur- ance Companies which had insured the goods, and leading the Compan- ies to believe that the goods had been destroyed by a fire which had pre- viously taken place. In a case reserved for the opinion of the Court as to whetiier such con- \iciion w.'is proper, the Judge at the trial found as a fact that ih.e prisoner had concealed tlic goods with the in- tent and purpose of obtaining from th(.- Insurance Companies their value and also keeping tlie goods for him- self, but it did not appear i)y the case stated whether the prisoner had ac- tually made any claim under the pol- icies or not. Held, that the prisoner was pro- pi.'rly convicted, also that although the goods were his own goods, thtv came within the meaning of the ex- pression " things caj able of Ijeing stolen," Reg. v. Goi'stauh, X, 497. (('/) Elections. Convictior of Deputy Returning Officer. Although Not Formally Appointed. | — The accused had re- ceived fronv the Returning Officer an appointment as deputy signed by him, with the lilank for the name not filled up, as rcf|uired by section 30 of The Dominion Elections .\ct, R. S. C, c. 8. He acted as Depuiy Returning Ofificer at one of the poll- ing booths during the whole of tlie day of the election. He was con- victed under sub-section (c) of sec- tion 100 of the Act. for that he, be- ing the Deputy Returning Officer for that district, fraudulently put into the ballot box a number of ballots tliat he was not authorized to put in, and a case was reserved at the trial for the opinion of the Court, a-; to whether the accused could under 1 1 CRIMINAL LAW. 226. the circumstances properly be con- victed of sucli offence. J did, lolliiwing Kc.v v. Gordoi\, 2 Leach. 581 ; Rcw v. Ilollond. 3 T.R. (107, and Rex. v. D<>bson, 7 East, J18. that liic accused, havii g acted in the nflice and having lieen ;he Dep- uty Returning Officer de facto on the (lay in question, wa- properly con- victed of the olfence charged. Reg. V. Ilohiian, X, 272. ; I (e) Forcible Entry. 1 Trespass on Lands — Criminal Ci'de. s. Sg.] — .V trespa-ser up: mi lands in the occupation of another, I although he enters in a manner likely j !i' cause a breach of tl;e peace and i \v;tli force sufficient to overcome re- sistance, cannot be convicted of a forcible entry under section 89 of The Critninal Code, where the entry j was made for the sole purpose of seizing and ta.ring away goods and ^ there was no ii;'ent to take possess- ion of the land or to oust the person in pi'ssession or to interfere with his actual occupation of it. Uussrll on Crimes, (4ih ed. ) vo!. i. p. 427, fol- lowed. _ i Section P9 of the Ci'de was not in- j tended to make any change in the former law as to forcible entry or to create anv r.ew offence. Reg. v. Pike. XI T'. 314. See Pockett v. Pool. XI. 27^. (f) Forgery. Defiinition.] — Forgery is the falsely making or altering a docu- ment to the prejudice of another, by makin;» it appear as the document ot that person. A simple lie. reduced to writing, is not necessnrily forg- ery. Consequently wliere a Bank I'lrk made certain false entries in the Cank books under his control, f(.ir the purpose of enabhng him to ob- tain money of the Bank improperly. Held, that he was not .guilty of tVrgery. Reg. v. Plaekstone, X. One of Several Signatures.] — A joint and several bond was executed liy tlie prisoner under an assumed name for a fraudulent purpose. 'I'lie"" was 111) proof whether tire other signatures h;id been forged or not. Held, that an ind.ictment that the prisoner had forged the bond was sustained, h'eg. v. Deegar,. VI, 81. Speedy Trial. ] - .\ prisoner charged with the crime ot forgery cannot be brought up before a Judge of the Court of Queen's Bencli un- der The Specdv Trials Act. Reg. V. Senlt. Ill, 448. (g) Gaining I[oh.<;\ Gaming House — Poker — Com- )i<.ituient.\ — Held, \. That keeping a cnnnnon gaming house is an in- dictali'e offence at common law. 2. That the cards, etc.. referred to in section ,^ if .'^S \'ic.. c. 41, must be such as are ordinarily used in play- ing an un'awful game. 3. That a commitment for unlawfully keeping a conmion gaming house sufficiently describes an offence, so that the party committed cannot be discharg- ed on the ground of there bein.g any defect on the face of the commit- ment in merely thus describing the offence. 4. That " poker " is not in itself an unlawful game. Reg. v. .S7;(7T.'. IV, 404. Gambling: House — Constitution- al Law.] — .\ "gambling house" is the san;e thing as a " common gam- ing house." Keeping a gambling hou^e is an offence against the gen- er;d criminal law: consequently it can be dealt with only by the Parlia- ment of Canada, and cannot be made an offence by a Provincial Act. or by a municipal by-law. passed under the authority ■ f -uch an Act, Reg. v. Shazv, Vil. ."i;-!. See Reg. v. / and Re:;. \ . Infra ik). >>-!dson. \'Iir. 32.^; Hernial' \ III, 330; (/f1 Perjury. Authority to Administer Oath.] Personation.] — The prisoner was 227 CRIMINAL LAW. 228 convicted on an indictnicnl for per- jury, in having sworn before the Dcimty Reiiirning Officer at an elec- tion for niicniber of the House of Commons for the City of Winnipeg, ihat lie was tlie person whom lie re- ])rescntcd himself to be named on the list of electors for the polling sub-division. He was not an elec- tor, or entitled to vote in the constit- uency. A', the trial, prisoner's coun?el con- tended that there was no authority for the Deputy Returning Officer, un- der section 45 of The Dominion Elec- tions Act. R. S. C, c. 8. to adminis- ter an oath to any person but an elector, and the Judge reserved a case for li.e oi)inion of the Courc as to whcihcr the prisoner had been properly convicted. llclil, that the statute must receive a reasonable construction, thai auth- ority was intended to be conferred upon tlve officer to administer the oath to any person presenting him- self and claiming to be an elector en- tilled to vote, and that under section 148 of The Criminal Code. 1892, prisoner had been properly convict- ed of perjury. Reg. v. Chamber- lain, X. 2(l\. (i) Theft. Having in Possession Goods Stolen Abroad — Pi-fitf of I'orci}::! Lazi.:] — Upon a charge of having in possession goods stolen in a foreisti country, it is not always necessary to prove the state of the law of that count vv. P(t' Taylor, C. J. — When the Crown proved that the prisoner had taken, and had in his possess!. >n in C.^.nada. prnjierty which he had. in any other country, taken under such circun'.stances that had he taken it in like r-.iTincr in Canada, it would, by the i.'Ws c'f Canada, have been fel- ony, then the oti'ence was proved. And .an allegation in the indictment that the prisoner " feloniously had taken and carried away " the goods does not impose any additional bur- den of proof upon the Crown. Per Killam, J. — It may be neces- sary under certain circumstances for the Crown to prove the foreign law as an elemeiu in tin: moral (luality of the .-Xct. Ret^. V. Jezeell. \"1, 4()o'. Accessory to Theft — Reeciver of Sloloii Oc'Oi/.T. I — .Although, under section 61 of The Criminal Code, a peison who has been accessory to a theft may be convicted as a principal thief, this does not prevent his con- \ iction as a receiver of the stolen pioperty. if he has subsequently re- cei\ed it from the actual thief. The true principle is that it is a receipt which is merely an act done ill the Commission of the theft which cannot be treated as a separate of- fence : and the statute which makes counselling or procuring form a [lar- ticipation in the offence, when coni- miited. does not also make a subsc- fiiient receipt form a part of a theft completed before the receipt. /(■<',!,'. v. iiojge, XII, 319, {j) Threats. Letter Demanding Money.] — R, S. C. 173, s. I, provides that " i^very one who sends knowing the contents thereof, any letter or writ- ing denianding of any person, wi'li menaces, and without any reason;d)le or probable cause any i)roperty. chat- lel. money .... is guilty ni a fel- onv, etc. Held (Killam. J.. diihitaKte). that a letter sent by the prisoners to a tavern keeper, demanding a sum oi money, and threatening in default of payment to bring a prosecution un- (.ler The Liquor License Act, was not a meiMce within the meaning of the abo\x» section. Held, also, (Killam, J., dubitantc). that the test is whether the menace was such as a firm and prudent man might and ought to have resisted. Rex V. Soiitherton. 6 East, 126. fol- lowed. Reg. V. MeDonnld and Vanderherg, VIII, 491. Demanding Money with Intent to SteaLj — The prisoner was con- victed under section 404 of The Criminal Code, 1892. of having de- manded money of the prosecutor with menaces with intent to steal the 229 CRIMINAL LAW. •j;:;o wni- n. wi-.h ,-. chui- a Uv ). tlv.t IfanU 01 Jon un- Iwas no I of the titantr^. 1 menace [■nv man 1-esisvcd. 26, fol- |/J and I Intent las CO!:- Df The ling de- ]tor witti eal the same, and a case was reserved for the opinion of the Court on tlie ques- tinn. whether the evidence was sufti- cient to prove the crime charged. Tlie prisoner had demanded $75. 00 fiom the prosecutor under tlireat of having him prusecuted for an infrac- tion of The Liquor License Act. Held, that any menace or threat tl;at comes witliin the sense of the word menace in its ordinary mean- ing, proved to have been made with thu intent to steal the tiling demand- ed, would bring the case wiiiiin sec- tion 404, and that it need not be one incessarily of a cliaracter to excite ak'rm, hut it would be sufticient if it v.ere such as would be likely to af- fi.ct any man in a sound and healthy >l;ite of mind; and the qiiesiion, whether there was the intention to ."^leal th ' money demanded, is one of ii'Xt and not law. Conviction alarmed, (Killam. J., clis-enting), ; /v'ri'. V, Stiiith. (1849) 4 Cox C, C, j 42; Kffi. V, Robcrtsmi. (1864) L, & 1 C. 483; Rcf;. V. Toiiiliiisoii, (1895) | 18 Cox C. C. 7t. followed. Reg. v, | }[enoihild. (1892) 8 M. R. 491; and h'lX V. Soiitl'.rrton. 1805) 6 East, I \2h. dinibted. Reg. v. Gibbons, XH, J54- (k) I'agrancy. Gaming — J^i-jing by Means of — I'-iidrnce — Sufficieney of.] — R. S, C c, 157, s. 8, provides that : " All persons who (k) have no peaceable profession or calling to maintain themselves by, but who do, for the most part, support themselves liv gaming are louce, idle or disorderly persons, or vagrants, within the meaning of this section. 2. Lvery loose, idle or disorderly per- >oii or vagrant shall, upon summary c nviction be dL-emed Siiil.y of a misdemeaniir. and shall be liable, etc. 1). was convicted l^eforc a police tiiagistrate under aliove section, and sentenced to imprisonment. On an application for a writ of iuibeas corpus — field, that to support such a cm- viciiun there must be evidence of fnur distinct propo>iti()ns : (1) That the accused had no peaceable pro- fession or calling to support himself by; {2) that lie iiraci.sed gaming; (3) that, from this practice, he de- rived some substantial profits; (4) tliat these prdtits cimsliluied the larger portion of his means of sup- port; and there being iin reasonable evidence to w.arrant a finding nf either the third of fourth iirojjdsi- tidii, it could not be assumed that be- cause of the want of a \-isible occu- pation, and of the accused being greatly addicted to gainljling, the lat- ter contributed mainly to his sup,- |.i)rt. The prisoner was discharged. h'eg. V. Jhizidson, \'IIL 3J5. Gaming _ Lk'ing by Means of— !'!ndi)igs of Faet by }lagislrate — J^i'idenee — Sufljcicney of.\-H. was cdivicted before a pnlice magistrate and sentenced to a term of imiiris- unmcnt under R. S. C, c. 157, s. 8, tipon a charge of b;iving im peacealile profession or calling to maintain himself by, but who, for the most part, sttpported himself by gaming, and of Ijeing a loose, idle nr disor- derly person, and a \-agr;mt. On an application for a writ of luibeas eorpus — Held, that the weight to lie given to the evidence it was the function of the magistrate tn decide, and the Court could only search the evid- ence, ascertain what points might possibly be found in fa\or of the pro- secution, and consider whether, if the magistrate found all of these against the accused, there was rea- ^' n;ilile ground for inferring that the accused was guilty of the crime ch.arged. Held, also, that, although the case was exceedingly weak, the Court cottld not say that up .n no \iew of the evidence was it possible for the magistrate to make the inferences necessary to support the inlvinr.ation. and the application was, therefore, refused. Held, also, that it i'^ clearl\- quite an insufficient compliance with the statute for the prosecution to show merely that an accused party has no apparent occupation or calling, other m DAMAGES. 232 tliriii Raming. fftMUKInlv ,-111(1 I In-, Hull' \'l|i and tli;u lialii;ually. Supra ig). c gaiiil)lL'S Sec Certiorari; Evuienle. II, IX; Indictment and Information; iNTOXIlATlNd Llijl-'OKS, II ; Ll- BEL ; Lotteries. CROWN. i'ct' Attornev-General. CROWN LANDS. Sec iNjrNlTlON, II (b). Sec Taxation, I. DAMAGES. Amount — Assiuilt.] — In an a'-- tion for assault, false imprisonment. slander and libel, the assault and im- prisonment consisted in the defend- ant putting his hand upon the plain- tiffs shoulder, pushing her into the office and locking the door for a sliort time. No evidence was given of special damage under the slander and libel counts, and a verdict upon them alone could not therefore be supported. The jury gave a genera' verdict of $300. Held, that althougli the damages were c.xcesNive, the Court could not interfere with the verdict upon that account. McMoiiaglc v. Ortoii, V, 193- Amount — Breach nf Contract for Mutual Erection of Buildings, Etc. — Costs.] — The plaintiff and defend- ant agreed that the plaintiff should procure a site for a mill and build the same so as to he ready for the recep'iiiin of machinery, which tliv defendant was to supi)ly. The plaiii- tilV incurred expense in building the mill ; in building a house for the de- fendant at his re(|Uesl, to be ready for him on iiis arri\al ivom (Jnlario; in going to Ontario on account of the dclendant's neglect to carry out the terms of the conir;ict; in paying wages to a man whilst absent in Oii- t;irio; and in going to Winnipeg "H business of the venture. 'I'he dc- i'eiulant refused to carry out the agreement. J/eld. that the true measure of tli.' plaintiff's damages was the loss on the sale of the house built by him l'.;r the defendant, and the loss in re- spect of the mill building; but that he was not entitled to recoxer for the journeys t(j Ont;irio and Winni- peg or for the wages. .Simpson v. J:ilis. T. \\'.. 31. Con'ract to — Defendants took expropriate lands of Amount — Breacli of Coin'cy Land. | prLiceedings to the plaintiff. The eonunissioners awarded to the plaintiff .'p2i,455. but the award was not confirmed by a Judge, as rcrjuired by the defendants' charter. Jleld (overruling Dubuc, ].). thai the award could mit be enforced, .'vftcr an award, but before its con- firmation, the defendants agreed to give to the ])laiiitiff, in exchange for the same land, two other pieces of land and $12,000. The plaintftT thereupon removed certain buildings, the defendants used the land for : street, and the defendants paid the $12,000. but refused to convey the two parcels of land, alleging that they formed portions of streets. //(■/(/ (affirming Dubuc, J.), i. That a bill might be filed to recover damages for the breach of the con- tract, the deed from the plaintiff 10 the defendants having erroneously acknowledged receipt of the purchase money. 2. That the damages might fairly be placed at the difference be- tween the $21,455 and the $12,000. without proof of the locality of the 233 DAMAGES. 234 in a uus' thai )rce(l. criii- f (li- nt lUtft iiigs. Ill- ; tlv tlU' llu-v ). '• cover con- iff M loiisly cha?!-" niglit le hc- (2,00 ' If tho two parcels of laiiil or lluir value, ilu (IcliiKi/nts liaviiiff had in ihrir cusiody tlie (locunicms l)y which the locality could have been proved, and not having produced iheiii, hut al- leged their loss. /Fn',t,'/i< v. 'I'll'.' City of Winnipeg, IV. 40. Amount — Brcarh of Covenant by Liiinllord to Build Fcnee.] — The defendant demised land to the plain- tiff for one year, at $JCO, and cov- enanted to fence tlie p^emise^. lie iie.u'lected to build the fence, and the piainlitif refused to pay ;in in>talnu'nt nf rent, ami uniting 10 $too. The de- feiiilant distrained a \"ke (if (ixen I'lid a wagon, with hnu^ehold furni- ture, not tiiuling any other distress 1111 the premises. After seizttrc. ap- priii'-einent, and notice of sale, the k'lilitY found some barlev hi a shed ' 11 the premises, but made no change in the seizure i>v inveniui'N-, think- ing he had no right to dd so, and be- lieving iluit the barley was neit ihe're when he made the seizure. The plaintiff never objected 10 the seiz- tn-e rif the oxen, and once asked for a piistponenient of the sale. The ( X(.n ;ind wag n were sold, the plain- tiff buying them for $160. The rem .-'ii'l expen>es atriomiied to !'"^i35.,^o. The suri)lus was retained by the plaintiff. The day after the sale he i?stied a writ. The jury found a \erdict for the plaintiff on the ceumts f(^r breach of covenant to fence, dis- tr.-iinuig beasts of the plow, and ex- cessive distress, and assessed the damages at $i(So. Iliid, tliat the damages were ex- cessive, and that there sh'u'd be a !'ew trial unless the plaintiff con- senied to reduce his verdict. The measure of damages on the bleach of covenant was what it 'Adiild have cost the plaintifY to have leased another piece of land fenced : for distraining beasts of the iilow, what it would cust the plaintiff to have hired oxen for the several days be was deprived of the use of them. —I'cr Wood, C. J. Clarke v. Mtir- niy. T. \V., 127. Amount —Breach of irarranty.] —The measure of damages is the sum which at the time of the sale it would have been necessary to expend in order to remove any defect which consiiluteil a i)reach of the warranty, C"ok V. 'I'lh^nhis. \'l. jSd. Amount — Lease of " c7.m/; " l-ariii — I'liliire lhnitu,iie.\ — 'i"his was an action in which the plaintiffs :-ouglit to recover damage.- lor fratid- tdeiit representtitions wdiereby they were iiKlnced to lease the farm of the defendant at a very high rental. The false representation proved was that the farm was a clean farm, \^■herea^ in fact it w;is full of weeds. II eld. that the proiier measure of li.am.ages iii such a case is the idle a('oi)te'! in I'eal: v. Perry, ,y Ch. U, 541, namely, to ascertaii the differ- ence between the price paid and the ;ictual value to the plaintit'fs at '.he time of the contraeu Tlie nuiiket value is not to be considered, and the true queslii->n is : Was the farm when taken worth the rental which the plaimiff> agreed to pay, and if by reason of the existence of weeds it was worth less, how much less was it worth? Damages were allowed to the iilainliffs on this principle at $1 per acre for the cultivated land for each of the two years for which they had taken the farm. Jleld. also, that although the lease had still a year to run after the com- mencement of the action, the pbain- tifi's could nevertheless reci.v.r all their elamages in this actiiJii. there being only one contract, and no right to bring a secf.nd action under it. Held, ;ds.i, that the expression ■' clean farm " does not mean ;i farm tdisolutely free from weeds, but only one on which there were not weeds in such quantities as to be materially injurious to the crops, and that the defence of fraud could not avail against it. Jolinsttnie \. Hal!, X. 161. Amount — Trespass to Goods — T.xetnplary Ihinioi^es — Audita Quer- ela — Court .Iseertaiiiiug Dainat^es and Reducing I'erdiet.] — PlaintilT and the delend.aiU Babingtoii both claimed the ownershi[) of a crop of wheal — the plaintiff as being tenant ;J36 DAMAGES. :i36 (if l{al)inptnn, and Rahington (ni tlic Ki'cund tliat the lipase had cxpireil. llic (|iic'>tiiiii was whclluT tlic oral agreement hetwccii the parlies was for one or five years. Tlie defend- ant Iiad cut and stacked eiglit stacks, hut liad not interfered with tlie rest of tlie wheat, which was cut and put up hy the plaintiffs in six sacks. The plaintiff had a verdict of $650. Up- (jn a motion for a new trial — ■ Uiici, I. That the charge was not ernmcous hecause the Judge refused to tell the jury that it was for the plaintiff to make out every part of the agreement, and not merely that part of it. which he required for this case. J. That the Judge was correct in telling the jury that if they found a verdict for the plaintiff they were not limited in estimating damages to the actual pecuniary hiss, hut could allow exemplary d.amages in addi- tion ; that it was not necessary, un- der the circumstances, to point out thf: disiinctinn lieween a ixnia fide assertion of right and n wanton tres- pass. 3. That it was not necessary for tiie Judge to tell the jury that if tiicir verdict was in trespass, the damage would he calculated with re- ference to the whole crop, while, if in trover, it would be limited to the part cnn\ cried. The jury could m.t well have erred upon that iinint. 4. Some damage h;id occurred l)ecausc of the occurrence of a h;ul storm while a portion of the wheat was un- cut. For this tlie defendants were not liable, and the damages were re- duced by $200, the amount estimated by tlic Court as attributable to that cause. Just iirevious to the hour fixed for entering judgment in term liffid.ivits were read by the defend- ant's counsel, showing that since ver- dict tlie plaintiff had threshed seven of the stacks fur his own use. Hcli!. that such a matter could be dealt with by the Court. .Vffidavits having been filed and a further argu- nuiit having taken place — Ifrld. r. Tl^'>t under the cli.argc the jury might well have given damages in trover for the whole crop instead only for that part converted: and that the Judges' charge was there- fore erroneous (Duluic, T.. dissent- ing). 2. The verdict was, therefore, further reduced to $2-'5, being ihe v.alue of the slacks convened by the defendants, less the value of one of them re-taken hy the plaintiff; the plaintiff to liave a certificate for full cists { Dubuc, J., dissenting). Upnn tlie olijcction being taken that no cer- tificate could he granted, the Court, without deciding the imint, ordiTcd the verdict to be entered for $j6o. ihe plaintiff to give credit thereon for $35, the value of the stack re- taken by him. Monkiinin v. I'dlis, V, .V7. Reducing Verdict.] — Wiiere a verdict cannot be impeached except upon the grotmd of excessive dam- ages, the Court may, with the plain- lil'f's consent, reduce the d.amages. Miller v. Manitol'a Lumber & I'licl Co., VI. 487. Date of Assessing Damages.)— In an action l)y a ))urcliaser for spec- ific performance of a contract re- slieciing lands intended to he held by him for sale, where damages have Ijeen decreed, instead fjf specific per- fnrmance, on account nf the sale by the vendor of the lands to a third party, the date of the breach of the cnniract is the period at which the value of the Land in ciuestion is to be estimated for the purpose of assess- ing the damages. Boulibcc v. Shore, I, 22. See also Puixiii'al a.vd Aokxt, IV. Reduction in Plain'^iff's Claim — lividenee In.\ — i. In actions upon qaantiiin meruit for W(jrk and labor, defective workmanship may be prov- ed in mitigation of damages, al- tbdugli not pleaded. Seeus if the ac- tinn be upon a special contract. _'. In ;m action upon a special contract for the sale of a specific article, for goods sold and delivered, evidence of a breach of a warranty may be given in reduction ot the contract ])rice, although not pleaded. ?,■ In an action for goods sold and deliver- ed, or for work and labor, evidence I if damage for delay cannot be given unless under a counter-claim, Seiiible — In an action bv a carrier 237 DISCOVERY. 238 for freiRlu. oxidi'iici' nf clamaKC to till' gooils cannot he RJvcn unless iin- (lir a cniinti T-claiin. Siiiillt v. Slraiti^i', II, 101. DEATH OF JUDGE. Sec PKACTICE, XVII. DEBT BY STATUTE. Action or Mandamus.] — Wlierc an Act of I'arlianicn; casts upon a I)arty an olilisation to pay a specific sum of money to particular persons, an action of debt may be maintained for tire amount ; and that, although a (lilTercnt remedy may he provided by the Act. A inaiutainus would not he Rranted. r.aslcni Jiidickil Dis- trict V. Jrimiipi-;^. Ill, 5;i7. DEDICATION. Of a Street, !)cilicalion of a street not having been acted upon — tile property not having been used a^ a street, but, on the contrary, the lilaintiffs occupancy of it having liem sanctioned bv tiie City — did not affect the plaintiff's title, ll'right v. U'iiinipi'fi. Ill, 349. DEEDS. Sec Estoppel, II. .SVt' T.XXATIOX, IX. DESCENT. Law of Primogeniture — /;; I'(rcc in Mauitolm ul^ to yd May, 1S71.I — Tlie Legislature of Mani- tib.a passed the first IiUestacy Act in .\l;iy, 1S71, and before that time the law of descent applicable in Kngland to estates in lands and lenemeius should he held t'l have been in force in Manitoba; and therefore where a inrsop "lied intestate in .\pril. 1S71, being .lie owner in fee simple of a parcel of land, the Court — Held, that the land descended to the eldest son to the exclusion of the I titer children. Re Tait. IX. 617. DISALLOWANCE OF STAT- UTES. Publication,] — .\n Act of the Province having been disallowed, the Order of the Ciovernor-deiier.-il-in- Ci uncil was publishcil in The .][iVii- loha Gacdlc. and following it was also published a certificate of the Cirixernor-Gcneral of the day upon which the Act was received. //('/(/, that such publication was a sufficient signification of the disal- lowance. .Ilfonicv-Grncral v. h'XiVi. V. 81. DISCOVERY. T. W'liKN Or.TAiNAm.i:. II. I"..\AMIN"ATIO\ OK PaRTIKS OR OriiFn PEiiSoxs. III. PUODUCTION" OI' I')Oer.MF.NT.S. T. WllF.N Ol'.T AIXAni.E. Who Entitled,]- er the p'.aintiff was ■Oi(a-rc. wbeth- enlitled to dis- ci .very ;ind pr<.(lnctinn imtil be had dilixered ;i statement of claim in the Oueen's Bench. DaT'ics v. irHliains. n Ch. D. i^o. Doll V. Hoieard. X, Foreign Corporation — IV h c n Order IVill !'c ?Jadc — Foreign and ^a^ »o. IMAGE EVALUATION TEST TARGET (MT-3) 1.0 I.I 1.25 ilM ilM IIU |j|||22 2.0 ll!l— 1-4 IIIIII.6 V] ^ m^ c">J ^#' . ^^ /}. iW /. "«» i? / /!SS Photographic Sciences Corporation cF V iV \\ %< #> "^1^ 73 WEST MAIN STREET WEBSTER, NY 14580 (716) 872-4503 o^ 239 DISCOVERY. 240 m Local Dfficrrs.] — An aclinn .iRainst a foroigti Corpiiratic)!! upon a cause (if acUDii wliicii arose out of llio jur- isdiction was brougln in Manitoba, under 40 Vic, c. 35. s. ,v (M. iSSf)), on tlic ^roniid of tlie defendant liav- inp: assets in tlie Province. On an application by tiic plaintiffs for dis- covery under section 50 of C. L. P. Act. 1S34 — Held, I. The application must he siiiiiiorted by an at'tiilavit of ttie liIaiinitT. l)ut if there are more than on;' phiintilT, tlie afiidavit of one is stifticient. 2. Ofiiccrs of tlie Corpor- ation, residing out of the jurisdic- tion of ibe Court, will not be recp.iir- ed to make discovery j The local officers are not boi' d to inform tbeinselves of the transactions of the Ci'rporati(jn. out of which 'l;e cause of action arose, which \' :'■ "-'ace in the forci),j(i ictritorv, io: Tpose of alTordniK' dis.-ovory v ' plain- tiff. ,}. L"nKs'^ the C')rf,',r,-i o;i has some person within the juii-diction who can be coinpilled to give discov- ery, no (irder for discovery will be n-.ade. It is otherwi<' if the Cov- IKMaiioii li;is vohmlarily beconie a suitor by iiivokinp the aid I'f the Court in its own iiehalf. 5. There is an appeal from an order granting or refusing discovery. Per Taylor, C. J. — The Court will no; make an order for discovery when it is clear that vlocuiiKnis would not be ojien for inspection, bi;t where there is double the order will be made and the privile.iie may be shown in the .affidavit made in obedience tn the order. McPoiuilJ V. 7 Vic Cunadiait Pacific Raihu'av Co.. ^■II, 4-M. Discovery as to Accounts Be- fore Decree. 1 — In a partnership bill tliere were some general charges of misapplication and misappropriation of moneys. The right to a decree for account was conceded, but the defendants refuseil, up(jn examina- tion, to answer questions based upon the general charges. //(•/(/, I. That the defcndan's were bound to answer, even though the questions related to matters that would he referred to the Maser and not determined at the hearing. ( l-jl- iiicr V. Creasy, L. R. g Ch. 6-). ap- proved), 2. .Although the charges might not have been sufhciently spe- cific upon demuiTcr. yet the defend- ants having answered, they were pn eluded from refusing to answer fully. 3. Some of the (|uestions were (l:recte(l to the defendants dealings with the '■ Pruden Farn'." The de fcndants swore that this farm wa^ not an asset of the firm, but iluy were nevertheless ordered to give a full discovery respecting the proper- ty. MacdoihilJ V, Mc.lrtlnir, l\\ 50. II. Kx.\MiN.\TioN' OF Parties or Otiiku Per.so.v.s. Of Parties Abroad.) — .Xn order may be made for the c.xaniinatio;i of a defendant upon his jileas. even though the defendant resides out of tile jurisdiction (affirming Dubiic, j,). I; would be a conveu'ent prac- tice to grait such an order upon summons i^nly, but a Judge may. in his discretion, grant it «".r l^artc. Ser- \ice upon attorneys resident abroad a.-. agint> for the defendant's attor- neys is not sufficient if tluir jiower to receive notice was not est.ablislicl (overriding Dubuc. J.). .'\lillcr \. ilcnry. 111. 425. Covi:oration _ P.^aiiiiwition of (itj;,cr.\ — //,•/(/, thai the chief of- tlcer in this Province of a foreign Corporation can be e.xamined for discovery. The h'eal Lstate Loan C(>. V, .Moles'eiirth. II, 93. Corporation — Coiinnuiiicatioits Hclwceii Manager of Bank and Head UfHee — Principal and .I^'<';i/. ] — 'ihe manager of a branch Bank at \\'., having its hea.d I'U from the litiilding called the p >wer house, and Somerset was an elecirician in dc- fiiidants' employ at the jiower house ai.d had the control and man;ijicment thereof and of the c!eciric current a-a fiircman.but his duties had never lien defmed by the direct' irs. nor had any resolution or by-law been iiasstd making him an officer of the Cunipany. //(■/(/. that he was an nfliccr of the C' inpany within the tneaning of that (.xpre^sion in rule .^7. v. Mnxlry. 13 S. C. R. 145. followed. Review of a nuiuber of the con- flictiiiR decisions on the point. Pixmi V. 77/1' U'iiniil^cg BIcctric Strrct Railway Co., X. 660. Remedy for Refusal to An- swer — riacticc] — On a niition to rciinpel a party to a suit tn answer finest ions that he had refused to an- swer on an examination nn the pleadings, the notice of motion must vrite that the certificate of the exani- itier. as well as the examination, will he read, ahhough those two docu- tcents luay be embodied in one. iJcpositions being read upon a mo- I'n;; contained certain cpiestions to V, hich there appeared no answers oil.er than as follows: " Witness on advice of counsel refused to answer." lliid. that there was not sufticienl evidence of refusal to answer the (If.estions. The West Cuinberlniid Irmi and Steel C'c v. The ll'ininpeg ami Hudson's Ihiy Naihi'ay Co.. \'IJ, 504. Remedy for Refusal to Attend. | — -Circumstances mider which an or- der will be made to strike out a de- fence for non-attendance for exam- ination. .\u order s;riking mtt a defence should n t also contain leave to sign final judgment. Ontario Hank- V. Sutherland, 111. j(j\. III. I'KiilHi TION OF DocrMKNTS Books Not Belonging to De- I fendnnts. I — Defendants iihadid a ' set-nff. the items of which were con- tained in the books of the N. \V. L. Co. DefendaiUs were shareholders in the Coni])aiiy. and irigiiially the sole owners of the s'.ock. Plaintiff obtained an order to examine the de- fendant Carman on his pleas, and gave him notice to produce the book comaiiiing the items of the set-off, upon such examination. Produc- tion was refused. Held ( re\ ersing the order of Du- ' hue. J.), that Carman could not be cc;ini>elled to produce the books, i lU-adhiiry V. Mot't\it. I. 02. ! Documents in Custody of Re- ceiver.) — The o|)])( site jiarty in a ■-uit is entitled to the |)roduction of the li'ioks of a Railway Company, al- j theugh the Company may be in the I h;.nds of a receiver, who is entitled I to tin? custody of the books and doc- I umcrts. if he has not actually taken [ possi'-sion of them. The usual order for production I was varied in this case by directing I ni;ly that the books and docummts 1 !)'• produced to the plainiiffs or their I solicitors, on demand after twenty- fr ur hour-' notice at the Company's I general oftices. and that the plain- I' 243 DISCOVERY. 244 mmi klliiD"- tween the managers at Brant ford and W'imiiiJeg. which he objected to I'mduce on the ground that they were privileged comiuunications re- lating solely to the defendants' case antl defence, and did not concern the plaintitT's case. Ilclil. that the description of tl>€ 1)1 (iks was too indetinite. and that the defendants should tile a further allidavit showing how many, and which of the books referred to. cnu- lained any entry relating to the mat- ters in (piestion in the cause; the ride being that, when obiectiops ■cgainst production are made, the atVi- davit nuist describe the documents with suflicient distinctness to enable the Court to order production, if the ( liections should be overruled. (Taylor v. I'attcn. 4 O. B. I)., 85). Ih'hl, also, following Morris v. lulwarils, 15 A. C. .loq. that sutTici- ent had been stated to excuse pro- duction of the letters between the managers. Hector v. The Canadian Bank of Coninierce. XI. .U'l. Remedy tor Non-Production — Court of Chanihers.] — .An applica- tion to take a bill pro confesso for breach of an order to produce mulication 10 bar nuist be made in the original cause or matter and not in the issue, as in this ca-^e. .S'eiiihle — It luust be within the prwer of the Court to deal with dis- obeflience of stu h an order in some way. ;is by barring the jiarty in dc- ' wm 245 DRAINAOE. 246 fault. Hardy v. Dcsjariais. VIII, 401. Application for Further Aflft- davit. I — A contentions atVulavit is r.'t adniissiMe to contradict an atti- davit on production. l)nt it may Ite shown from admissions in letters written l)y tlie ])arty miikinp tlie atVi- (Invit or in liis ijleadtiiRs that lie has or had in his possession or iiower ( '.jur (ji'cimients relevant to tlie is- -lu. In that case, a further atlidavit w.ll he ordered. .•\n at'tidavit verifying; such letters is not p contentious affidavit. Co-„.\in V Pnniiiiioiid. \'II. 575. DOMICILE. Xi .• Co' '^.STIONS, VIII. y.i- (l.\KNISIIMr.\ T, I. ..SVi- T.\\.\TIO.\, I. DOMINION LANDS. .s'cT HoiNii.AKv Lines. .V,V T.W.MIoX. I. DRAINAGE. Watercourse — l\ii;lit tti Obstruct /.■;.• .'/' ir,it<-r.\ — .\ watercourse CI ii>ists 01 bed. haid|icr to receive the naiur.il drainage, does not ap(ily in this Province. U'il- liiiins v. Ricliards, (iSg,^) 2,^ O. R. i ) (■ 1 I 247 EJECTMENT. 248 651, and Oslnnii v. Sills, (1^7). // illdii \ . Murruy. Nil. .<3. DRUNKENNESS. Set' Contract, \ . DURESS. .V.-(' AKDITUATKiN. I\'. Sir BlI.L.S AMI XoTK.S, II, \'I, X. EJECTMENT. A Local Action.) — //,/(/, 1. A writ of cjeotmcn! luust l)i' issi'.c:! in t!ic district in wliicli the land li' s. 2. A party ohjicling {n a proceeding on tlic ground of irregularity must move within the time allowed to take tlie next step in llie case. Landed nank- iiiii and Loan Co. v. D<>Uiilas. II. 2Ji. Title by Possession — Suhsrqurut Possi'ssimi of I'rfi-ndaiit.] — In iSfij, T. erected a Imuse on the land in rimstiiiii, the fee of which was in the Crown, and lived in the Imuse and exercised .acts of possession on the land for two years, wlicn he died. lU fore his death, lie verh.illy gave the house and his interest in the land to his danphier, the wife of \\'.. who was residing with him. .After T.'s death. W. resided on tlic land for a few months, and tlun left. W. Cdiivcyed to the plaintiff by deed, which was registered. .After the conveyance to the plaintifT. and about two years bef.u-e action, the defend- ant commenced plowing p.'irt of the land in (|ucstion. ami afterward-; took possession of the whole, though for- l)idden by the plaiiuifif. The action was commenced in 1880. //(•/(/, that the mere prior possess- ion of W., the plaimifT's grantor, was not suftkienl to entitle the plaintiff to receiver as against the mere pos- session of the defendant, Larcctr \ llaiRrnvc, T. \\'.. 3.^,^ Plaintiff Losing Title Pending Action. I — 111 ejectment, if at the trial the evidence shows title out "X both parties, although in plaintiff wlien writ issued, the plaintiff is en- titled to jndgmmt for costs onlv McLaren \, McClelland. W. 5,vv Equitable^ Defence.] — In an ac- tion of ejectiiMiu founded on a legal title, the Court will permit the dc feiid.'int to set uy. facts which, if pli.aded airnniatively in a suit iti eiiuity, would entitle him to a stay of the action at law, I'arnier v, Lrc- in,Q.<;tone. T, W,, 2,i.v Equitable Defence — I'.ilent Ob- tained hy L'liind.] — An etiuitable de- fence in c.icctnient must dfi more than displace the plaintiff's !e;.i;il title. It must show that the r 'ind.'in; i- himself, of right, cntil' to some interest, which gives him a right m attack the i)!;iintiff's legal title. .\ I'lca attacked the p.Tent under which the plaintiff claimed as having b; ci I biained by fr;iud, but did not show ■ l.tit if the pale-n were set .aside, the defendant would be entitled to pos- '^"ssion. /. that the plea was bad. The I.oi\don and Canadian Loan and .i^eney Co.. v. Moffat. Ill, 241). Stay of Execution Till Equity Done 'by Plaintiff. |—W here a plain- tiff recovered a verdict in an action of ejectment, execution was stayed tuitil he h;id paid the .amount of an (•(|uiiable mort.gage on the land, the V aluc of improvements made by the nurchaser frotu the equitable mort- i.'agee, and contirmed a lease of the iiremises. Mcl\eiir.e\ v. .S'l^cnce, T. W.. II, Possession— /'(!y"/r;if of Ta.ves.] — field, that the payiucnt of taxes hv the defendant, and those through wdiom lie claimed, was evidence of possession, and that the defendant liad estal'Iislied occupation and pos- session of the land by himself, and those through whom he claimed. ■ii'i i.ir over ilcvcn years, and iliat the i piaiiilnV slmiild he iMn-siiited. | Ihii^lirs V. A'i(//i'i/i'i'. X. 13. I "111- also EviDKNtK, IX. {Last Ciisi' ) ELECTIONS. 250 ELECTIONS. I. Ballots. II. MLN-RirAL Elections. III. I'AKLL\.ME.NTARy ELECTIONS. 1\'. X'lOLATiox OK Election Laws. i:,LECTION OF REMEDIES. Creditor Proceeding' Under Fi. Fn. Goods, and also Under Regis- tered Judgment.] _ PlaintilT. after ■„r i\ei iiiy: jiiil^''tiiem at law against .ktendant. jilac .1 fi. fa. gonds and ';;iuls in tile liands (if tiie sheriff, and i-siied garnisiiing orders. Under ihe fi. fa. go ids, tlie sheriff seized certain ninr;gagcs. Tiie plaintiff ,ilsii registered the jiulgnient against certain lands, and filed a bill lor a >;\U. Ui'on an application at law to compel the plaintiff to elect be- tween the proceedings at law and ciiiiity — //>/(/, I. The case was not within the provisions of the C. S. M.. c. 37, s. S3. J. There is no practice outside the statute applicable to the ease. At puKt tlie question would be one of co,sts. 3. The statute can only apply to proceedings at law and in ecpiity against lands — and pmbably the Mime lands — not to proceedings at law against goods, and in equity aRainst lands. .lHozi-'ay v. Little, i .M. R., 3ifj, considered. 4. In any ca.H''the application was premature, the answer in equity nf)t having been tiled. l-t-r};uson v. Chambic, II, 186. Novation.] — Defendant sold a tn:siiiess carried on under the name 'if Rnwe & Co. to her husband, who continued it for some time, and then ■"Id it to a Coniipany; and the Com- pany agreed to assume and pay the liabilities of Rowe & Co. Pending 'hi< action, the plaintiffs recovered iitdgment against the Company for the amount sued for here. Held, that this was evidence of the clectinn by the plaintiffs to look to tlic Company for the old debt. Rich- jrd V. Rowe, IV, 112. See Fixtures. I. Ballots. Evidence of Voters as to How Ballots Marked.] _ In a prosecu- tion .)f a Deputy Returning Othcer, under The Dominion Elections .Act, for fraudulently putting into a bal- lot box divers papers purporting to he ballot papers, but to his know- ledge not being ballot papers, and being other than the ballot papers which he was authorized by law to put in the ballot bo.x — Held, notwithstanding section 71 of the .Act, that voters may be re- quired at the trial to state for whom thev have marked their ballots. /.•■fA'. V. Bcardsall. 1 Q. P. D. 425, fol''--.ved. Such evidence cannot be ruled nut as secondar>' evidence of the con- teiiui of written documents, because under the Act there is no way of identifying the particular ballot marked by any witness. Reg. v. Saunders, XI, 559. Recount — Mandavius to County Judge — Ballots not Objected to Be- fore Deputy Returning Officers.] — Held, I. That a mandamus will not lie to a County Judge to compel him to consider the validity of ballot pa- pers. Re Centre Wellington lilec- tion. 44 U. C. Q. B. 132, followed. Per Wallbridge, C. J. — Upon a re- count, should the County Judge con- sider the validity of ballot papers not objected to be 'ore the Deputy Re- turning Ot'ficers, qucrre. Per Killam, J. — The return of a Returning Officer is not void when based upon a certificate of the Coun- ty Judge, in proper form, merely be- cause the County Judge has not legally or fully discharged his du- m !' : y '*- 1 261 ELECTIONS. •>.=!•> ftrijilii ~\'^ lllllffi n^ ties iiiKJii a recount of l)allol.s. j. Tliiif Iniii^j aiiotlicf remedy, viz., an .'i|)|ilicaii(iii lo tlic House, a iiian- diiiiiiis sliniiltl not I)u Kraiitcd. Ri'i:. V. I'riiti'liiimmc — A't; Sorth Puffcriii Ulcciii'it, IV, 259. II. MUNK Il'Al, ]'J,FXTIONS. Qu..lification — Rc,i;istrar — Coun- ty Court luiiliff — Xoiiiiiuitioiis — Puty (if h'l-tuniiiif: ()f}iicr.\ — Held 1. A rt'Ki-lriir ami a C'luuty ('<>un hailitT ;irf (li>i<|u;ilit"Kd f^r tlii' oOk-e of inayiir and i-(ituu-il!iir respectively. 2. A Retuniinfi OtTicer must receive nominations for any candidate who appears to he assesr.ed for $100, even if he he in fact dis(|ualitied ni)on oth- er n;romids. .^. The jielitioner claimed live so.'it, hut he appe;ired lo he larRC- ly indehted to the municiiiality. and a new election was directed. Reg- ex rrl. Ihduaii v. Lauj^hlin; Reg. ex rel. Ste7\nsou v. Hlar.clniid, II, 78. Qualification of Mayor or Coun- cillor _ Leasehold Interest.] — By section 51 of The Municipal .\ci, K. S. -M.. c. too, the persons clipihlc for eleciion as mayors or councillors of villaRcs nmst he tiie owners respec- ti\ely, at the tin>e of the election, of freehold or leasehold, or jiartly free- hold and partly leasehold, real estate rated in their own names respective- ly on the last revised assessment roll of the villaifc to at least the amount of $300, over and ahovc all charges, liens and incumhrances afTccling the sa'iie. Tlie respondent lived with his wife \\\\i'\\ a pv'iperty in a village that was assessed in the name of tlu' wife as owner at $600. His name appeared on the roll as occupant or tenant of the same jiroperty. and opposite his name, mider the heading " descrip- tum and valuation." were dots. His name did not otherwise appear on the roll. The title to the property was in the wife, as appeared hy the certificate of title under The Real Property .Act, which also showed that it was incumhered by mortgages to the extent of $550. the Citv of c. 80, 'Reg. Held, that the respondent had not the necess.'.ry i)ropcrty (pialification for mayor of the village. Re Mor- deii Hieetioii: Riiddcil v. Carrctt XII. 56.3. See also Quo Warranto. Controvei'ted — City of liiiier- son.] — //(•/(/, that the procedure prescribed for the contestation 01 elections hy The (icneral .Act relat- ing to -Municipalities, 47 \'ic.. c. 11, s. 95. siiperce led that contained in the special ch.irier of I'Jiierson, 46 it 47 \'ic. ex. rel. Hai.Klit v. .Wish. 11. 73. Controverted— /;.[/,((;,/i,)n to Rr- strain .Issuniption of Munieifal Uj- fiee.] — AC'ourt of I".quity will not "lion an injunction hill try the valid- ity of an (lection to office of mayor or councillor, even though the cus- tody (if the hooks and ]iai)ers of the municipality he in (|uestion ; at all events, not unless there he others claiming the riglu to hold the offices. Fairbanks v. Poiti^las. V, 41. Resig'nation of Beeve — Suhse- quenf Withdrawal of Resif^nation — /'etition to Peelare Seat I'aeaiit — Tinie for /'resentii\i^r Petition — Po:e- trs of Clerk. \-S. was elected reeve of a rural nnmicipalitv in Deceniher. 180-'. On i8ih .March. i8r)j. he re- signed his scat in the council in writ- ing pursuant to the statute. .After- wards, on the 6th day of May, i8().i .S. attended a meeting of the coun- cil, proceeded to take part in the proceedings, and vf)ied on a motion to amend the nn'nutes of the iirevion- meeting declnring that the counci! accepted the withdrawal of his re>ii; nation, and declared the motion car- ried hy his casting vote, the other members of the council being even- ly divided. -A petition was then filed to have the seat declared vacant. On the hearing before the County Court Judge, the respondent took two pre- liminary objections: i. That the provisions of section 178 of The Municipal Act do not apply to the case of a member of the counci) who 2o.S ELECTIONS. L'')4 lia" rt^iRiied his scat. 2. Tliat the in'iiiii'ii was imt puM'ntcd wiilim tlic litiii' iirc'scnht'tl l)y tlic siaiiito, Thisc (iliH'Ctions were overrulecl. S. tlicii jiliplied in tl>e Queen's Bencli for a |,ri li;l)iti(in. Hi-Id. I. That, under the circuni- fiaiices allcgc=ciu-e of the words '" Whose n.ime is siih- scrihed." after the name of the neti- tioiier is not a sulficient ground of ohjiction to a |)etition. .\ petition is not insufficient for vagueness or i.ncertainty hecause it alleges a num- Inr of wrongful acts in the alterna- tive. .A petition is siffiiciem if it al- leges merely thai the respondent was guilty of a corrup' practice within I he meaning of section igX nf 'I'lie I'lli.ction .Act of Maniloha. iSSO. A'.- C artier l:leetion. W . 317. Prayer — Amendment.] — .An election petition set forth certain cor- rupt practices, and concliide petition, liave witli the Clerk of ilie Court a c( py of tlic ])ttition to lie sent to the Rtturning CJfficer. Collins v. Ross (Lix^iir lilcctioii Case). V'll. 581. ( '' ) Petition — Service. Not Signed _ Copy Reeognis- oiue Xut i'tider Seal — A'o Style of Cau.u'.\ — Moiioii to set aside tlie service of an eiei-tifni petition upon tlic grounds: i. Tliat tlie cnpy serv- cil was not signed by the petitioner, and did not show that the original was signed. -'. That the copy of the recognisance served did not show that the original was under seal, and, if the original was under seal, the c('\)y served is not a true copy. 3. 1 hat there was no style of cause in the petition. Refused ni;h costs. I.e. l'crd)idrye lilecliuii, I, 11. True Copy — Initials Instead of .Wanes.] — The following variances between the original petition and the copy filed: "person" instead of " persons ; " " places " instead of "place;" "John A. McDonell " in- stead of "John A. McDonald;" " cause " instead of " caused." Held, iniinaterial. ' The condition of the recognizance was as follows: "The condition of this recognisiance is that John Hall shall and well and truly pay." Held, sufificient. In the certificate at the end of the recognizance one of the sureties was referred to as " the above named W. A. Baldwin." It should have been " William Augustus Baldwin." //('/(/, sufficient. Re Lome Elec- tion. IV. 275. (c) Petition - Dismissal of Aban- doned. Costs.] — A petition was filed, styled in the Electoral Division of Kildonan. After a preliminary ob- jection had been taken on the ground iliai the name of the constituency was Kildiinan and St. I'aul's, a new lietition was served, together with a notice of .'ibandiinnieiit of the former petition, Ihis notice was styled 111 the Electoral Division of Kildonan and St. Taul's. Upon a motion by the respondent that the first petiiiuii should be discontinued, and that the pditioner should pay the coSts incur- red — Held, '. That .such an applicatiuii could be entertained. 2. That, under llie circunl^tances, the application could not be defeated because the summons was styled in the Electoral Divisifin of Kildonan and St. Paul's. Re Aut/ti/u/» Election, IV, 252. ((/) Status of Petitioner. Enquiry Upon Preliminary Ob- jection.] — The status of the peti- tioner may be enquired into upon a jireliminary objection to the petition. Re Cartier Election, IV, 317. Onus and Sufficiency of Proof.) —Where a petition against the elec- tion of a member to the Legislative Assembly is presented by a person other than a candidate, the onus is on the petitioner to establish his status. Where the only evidence of status was contained in an affidavit which stated: " I was at the time of said election, and at the time of the filing of the petition herein, and am now, an elector of the said electoral divis- ion, and had a right to vote at said election." Held, insufBcient. The Richelien Election Case, 21 S. C. R. 168, fol- lowed. Re Cvpress Election, VIII, 581. Method of Proof.] — A petition- er against the election of a member to the Provincial Legislature, who v,as not a candidate, must, if the objection is taken by preliminary objection, establish his status by producing a properly verified copy of the list of electors and some evid- ence of his identity with some per- son whose name appears thereon. Staustcad Election Case, 20 S. C. R. 257 ELECTIONS. 258 12. followed. Re St. Boniface Uli-c- ttJii. \'1II, 474. Method of Proof.) — A iictition- tT against the election of a nictii- lier of tlie Provincial LcRislature. who was not a candidate, lioinj; re- quired, under The Contmverted Klections Act. R. S. M.. c. 2<). s. 14, to prove his right to vote at the elec- tion in answer to a prcliininnry nh- iiction, may do so by .showing that jiis name appears on the list fit elec- turs for the whole constituency, i)re- I'arcd and revised under The {flec- tion .Act, R. S. M.. c. 49. s. 148, and need not show that his name was on the list of voters supplied to the Deputy Returning Officer for use in till- jMilling tin- piiislied. Re BnuidoH Citv lilcction. IX, 511, (<•) Aifidavit of Petitioner. Must be True — Time for Ctbjee- tit'iis — .-Ihnse of the Process of the Court.] — The affidavit re(|uired liy 54 & 55 Vic. (D.). c. 20, s. .V tci he !naeti- tioner, on his examin;ition on hi> af- fid.ivit pre-~ente(l wiih the petition, slated tb,it before making the affida- vit there were read 'm him statements made by a number of persons as to transactions connected with the elec- tion, and he g.ave several instances of corrupt practice- which had been related to him by cert;iin per«m>, whose names he gave, and be said he believed these siati'nients were cor- rect. ffehl, that ii conld not be said that his affidavit was untrue, al- th'iugh his e\iderce was t'ar fmm satisfactory, and a Judge might feel th.at he could not have made 'he af- fidavit on the same information that the petitiniier had. .\p|ieal from judgment of Kil'i'in; J., dismissing inoiinti, di^mUsed without cnst^i. Re M ledonald /'.lec- tion. .9;;v((/iT V. Boyd. .\I, .^08. ( f) Bond ■"■ Reco;;ui.':arfe. Recognizanc- — Ju.ttiees of the Pe<>ee — .■Iniendrient of Security.] — Justices (if -li peace have ik) .luih- ority or jurisdiction save that of the old " Conservators of the Peace." and such as have been given to them by statute. They have no p; iwer to t.'ike a recognizance unon an election petition. A person voluntarily enter- ILSOTIONl. 260 i 5 ' J^^ ing into A recnprnizance is not estop- ped from ilcnyinR its validity. The practice ill Kngland with rcfireiue to security fur costs has not been in- troduced into Manitoba. If tlie se- curity upon an election petition be imperfect, there is no i)iincr to per- mit an amendment of it or the sub- stitution of other security. L'pon a preliminary ol)jection to a pctitinn upon the ground that the recogniz- ance was taken before a justice of the peace, the recogni/ance having been held bad the peiition was dis- missed with csots. He Morlh Duf- fer in Llcition, IV, 280. Recognizance — Justices of the I' c a c c — lioitd IVitliont Seals — Avicitiimcnt.] — An instrument in the form of a recognisance not un- der seal, taken before a justice of the peace, was filed as security for costs. ilt'ld, I. Irregular as a recogniz- ance (AV North Piiffcrin Election, 4 M. L. K. 280, followed); and in- valid as a bond for want of seals. 2. That the Court had no power to per- mit tlie substitution of other security. AV Emerson EU'ctior.i. IV, 287. Recognizance _ Justices of the Peace.] — An objection that the re- cognizance for security for costs was taken before a justice of the peace is a preliminary objection. Prelimin- ary objections having been filed in proper time, a summons to consider them will not be discharged merely because it h.is noi been taken out within the time limited by statute. A justice of the peace has no power to take a recognizance in an election case (/vV \'or!h Jhtifcrin Election, 4 ^I. L. R. 280. followed). .K recog- nizance was taken before R. S.. de- scribed as a justice of the peace. He was also a commissioner, hut noth- ing r\npi;in'd upon the recognizance to show that fact. Heiil, that the recognizance was invalid. Re La J'eraniirye Election. Re St. Andrew's Election, IV, 514. Costs and Expenses — Eorm of Bond — AfUdavits of Justification.] — Security for costs may be given by bond to the respondent. A bond was given to secure certain uamed cfjsis, ■■ and also all costs which nn ihc final disposal of the petition ilii' Court shall award to ho payable as provided by The Manitoba Act." The statute re(inircd security for " any and all other expenses and charges." Held, that the bond was sufficient; aftulavits of justification need not ac- comiiany the bond. Jhit if the sutli- cieiiy of the security be attacked, ih», absence of such affidavits may b; considered. Re Cartier Election, IV, M7. Sureties.] — The expression in The Controverted Elections Act, " three sufficient sureties," means three sr.retics, each of whom is sufficient for the whole amount. Re Assiiii- boinc Election, IV, 328. ig) Security by I'aymcnt. Gold Coin or Dominion Notes.] — The security for costs required to be given by R. S. M., c. 29, s. J2, must be in gold coin or Domininn notes. A'l' St. Boniface Election, \'1II, 474; Re Cypress Election, VIII, 581. (/i) Gazette, Publication in. JNon-Publication.] _ The absence of notice of presentation of the peti- tion in the Gazette is not a ground for preliminary objection. Meaning of the word " immediately." Re Cartier Election, IV. 317. Dispensing with Notice — Prc- liniiiiary Objections.] — An objec- tion that notice of the presentation of an election petition had not been published in the Gazette is a prelim- inary objection. Such publiraiion may be dispensed with by a Judge. Re St. Boniface Election, VIII, 474. (/') Sen'icc of Preliminary Objec- tion. No Evidence of Service.] — The Manitoba Controverted Elections w^ 280 Ml BLECTIONI. 269 tit. lie absence the peii- a grciuiid Meaning — I'rc- |\u objec- jscntaiion lint been J a prelini- lubliraiinn a Judpc. 'Ill, 474. Objcc- .] — Tht Elections Act, R. S. M,, c, 29, ». yj, provides th.it " within five clays after the ser- vicf of the petition the re- ipiindent may produce any prelimin- ary objections, or grounds of insuffi- ciency, which he may have to urge against the petitioner or against the pftitiim; he shall in such ca^e at the same time file a copy of jiicli objections or grounds for the petitioner." Rule 14, after dealing with the subject of filing preliminary C'bjec- tions, says, " and shall serve a copy tliercof." I'J The respondent filed a copy of his preliminary objections for the peti- tioiiiT, and then under rule 14. ob- tani'd a summons to dispose of these objections. There was no evidence to show whether they had been served or not, it must be assum«d that the Judge who issued the sum- mons was satisfied with tlv i'A'dar- ity (if the respondent's procecding'j up ti> that time. ^'f' St. lionxface lUcctiuH, VIII. 446. (;j Summons to Consider Prelim- inary Objections. Time Within Which to Take Out.] — The preliminary objections to .m election petition cannot be dis- misx'd on the ground that the r€- ,s|)'ndent did not, within five days after the filing of the objections, take (lit a summons to dispose of them as required by rule 14. The statu- tory obligation to hear and decide the objections still remains. Rule 14. as to taking out such a summons, is e(|ually obligatory upon each party. A'(' .S>. Aitdrc'u''s lilcction. 4 M. R. 514. commented on. Re Brandon City Election, VIII, 505. (k) Practice. Service of Ex Parte Orders.] — .^n rx parte order should be served. but it is not void if not ser\-ed, and no one has been prejudiced by the rtmission. Re St. Boniface Election^ VIII. 474. IV. Violation of Electiok Law. "Corrupt" Treating — Agency-- I'nseating IVHIwut I)isqnalificiition.\ — Held (Taylor, J., dissenting), al- though a successful candidate at an election for the Legislative Assem- bly may be found guilty of treating electors, with intent to influtnce their \(te , he may be unseated only, and not disqualified. Held, ter Wallbridge, C. J.— i. Treating per se is not illegal. It is the corrupt intent of infiuencing vot- ers by it that the statute condemns. 2. The word " corrupt " in the stat- ute does not mean depraved, bui rather that the act was done in so unusual and suspicious a way that tht Judge ought to impute to the person a criminal intention of Ij- ing it. Held, per Taylor, J.— i. The diffi- culty of finding the cixstcnce of cor- rupt intent in treating, where, ac- cording to the hibits and practices of the respondent, and existing gen- erally in the locality, treating is customary, discussed. 2. Payments to an elector not an hotel-keeper for accommodation, unless excessi'-e, are not prima facie corrupt. 3. Treat- ing, after a meeting, at taverns where supporters of both parties are pres- ent — promiscuous treating among a large crowd of men attracted togeth- er by a political meeting — is not prima facie corrupt. 4. ^Iuch weight will be attached to the denial by the respondent of corrupt intent. 5. To prove agency, authority from the al- leged principal must be shown. Upon an appeal by the petitioner, the respondent ''as no right to seek a reversal of tlie certificate disniis.'^ing counter charges against the defeated candidate. Re Roclczi'ood Election. IV. J. Brandrith, petitioner, v. i". /. Jackson, respondent, II, 12<.). Bribery — Corrupt Practices — Agoiry — Trivial and Unimportant Offences.] — At the trial of the pe- tition against the respondent seeking to have his election declared void and himself disqualified for bribery and corrupt practices, within the meaning of The Manitoba Contro- P' 263 EMINENT DOMAIN. 264 I sic vcricd Elections Act. R. S. M., c. 2(j. it was proved that one U. had hctn guilty of bribery of a voter. D. was a person regularly employ- ed by liue of those most pnimiiient on resi;oii(Jeiit's cdnMuiltee, and was working in the connniitee rooms prior to the election just ;is any other niemher of the conunittce. Jfrld, that he nnist be considered to lie an agent oi the respondeiu. tliat ihe respondent was liable for iiiiy corrupt practice commiitcd by him. and that it was doubtful if the direct {lurchase of even a single vote for ;i i)ayment in money by an agiiU of the res()ondenl cion of the voters' list, held shortly before tile election took place, and after re- si)onden! had declared himself a can- didate. He had treated this expen- diture as ()art of his election e.xpcn- scs in furnishing the statement of such after the election. Ifchl. tjiat although this p;iyment. not being included in tlie list of ]kt- niitted expen>es under section 216 of The Election .\ct. was forbidden by that section, yet it was not a cor- rupt jiractice within the meaning of section J14. Rr Elcclion for Beau- tiful r'uiius. X. 130. .S'l'i' also CniMiN'.M. L.\w. IX. Ii EMINENT DOMAIN. Compensation — I.aiuis Injur- iously Affected — Panscr /•! Cliil- ihcii — ■ Ih'iilciu'c OH .1 fiscal.] — The |ironioter of ;i railway had power to expropriate land, making compensa- tion " for the value of the land talc- en. and for all damages to land in- juriously affected by the construc- tion of the railway," with a proviso for setting-otY the increased value of the lauds not taken, by reason of tlie passage of the railway tliroiigh nr over the same " against the incon- venience, loss or damage that might be suttered or sustained by reason of the Company taking posses>ion o! or using the said lands or grounds as atoie.-a.d." A portion of certain land^ having been taken by the rail- way — llclil, 1. That the compensation should be the ditYerence between the value of the land as it existed be- fore, .and of the remaining porti 'ii after the construction of the railway. J. That inconveniences ari>iiig ii't only from the construction, but from the operation of the railway, such as noise, ringing of bells, smoke and ashes, miglit be included in the esti- mate. ,5, Danger to chi'dren and iiliers shi'uld not be inchided. Upon api)eal to the l'"ull Court — lliid. that compensation was cor- rectly allowed for depreci.-ition in the \alue ipf Ihe land not taken. o..'c:i- si<'ned by the anticipation of the sub- >ei|neni operation an.i u>er (^f the radway on the laiul taken. I'cr Killani. J. — The appeal liavin;:; been limited to a part of the order, the responiient could not attack the (4her part of the order in arguing the api>eal. Re Scott am! Railzeay Com- mission. \T, 103. Proceedings to Expropriate — Ii cc^ularities — Waiz'cr — I'lcdil- '".?•] — In a notice given under sec- tion 69Q of The Municipal .\ct of proceedings for the expropriation by arbitration of the plaiinitY's land, the defendants stated that a petition would be presented to fix a coniiten- satioii to be jtaid to the p'aintitY for the land required instead of that to be allowed for the land, and the no- tice also difTered from the fiu'm di- rected by that section in referriiiii to the Judge of the County Court of the " Eastern Judicial District," in- stead of the " Judici.'il Division." wiiliin which the. land lies; but the defendants jiroeee'led with the arbi- tration proceedings and procured the award of commissioners under 265 ESTOPPEL. 266 tliat and following sc tions of tlie Act. altlioiigh tluy Jt'clincl al'ter- \v;iri!s to submit tht.' award to tlie C. uiity Court Judge for confirma- tioii. Ill an action by tlu' plaintiff for a tn^iiuiiiiiiits to coiniicl tlic defendants to complete the arl)itration prt)ceed- iUKs. and pay the amount of the award — lli-lJ, on demurrer, that the de- fendants could not rely upon such slight differences between the notice .-u'tually given and the notice provid- ol tor by the statute; that such dif- ferences were mere irregularities which were waived by defendants takmg subsequent proceedings, and thai defendants were also estopped from relying upon such mistakes in the notice prepared and served by iheni. Scott V. irir-jilfci:. \\. S4. Municipal Corporation — l'o:crr lo Coiislnict Bridge — Implied Pow- er III Exfrofriiitc Lands.] — By 43 \'ic., c. 27, s. 2 (Man.), the plaintiff Corporation had full power and authority to construct a bridge across the Red River, at such place within the City of Winnipeg to such p!:'.'"e ill Si. Boniface, on the opposite side of the river, as they might deem ad- visable. No express power to ex- propriate lands was given by the .Act. The plaintiffs under tliis en- actment took lands of the defendant nil the bank of the river in St. Boni- face for one of the abutments of the prcposed bridge, whereupon the de- fiiidant commenced an actioii of ciectment against them, and this bill w.is filed to rc'^tr.-iin the defend.-uit fri ni proceeding with the action of ejectment. Held (Wood. C. J., dissenting), nn demurrer to the bill of complaint, lliai the plaintiffs had no implied |in\vrr to exjiropi '.itc lands, though lluy were absolutely necessary for the purposes of the bridge. C/7y of U'iiir.it^ci; v. Caitchon. T. W.. .i^o. ENDORSEMENT OF WRIT SUMMONS. Sec jL'nfiMF.XTS, in. OF ENTAIL. See Tenancy in Tail. ESCHEAT. Property of Felon — Allcf^ations of Fraud — Multifariousness.] — Ir- respective of The Imperial Act. 3.\ &. .•^4 \'ic.. c. 2.;, all chattel property, including choses in action, possessed by a felon at the time of his convic- tion, or acqitired thereafter during the currency of his sentence, jiasses to the Crown. Quicrc — Whether The Imperitd Act prohibiting a convict from su- ing, and \estiiig the right to sue in an ;idministrator. is in force here. liaffield V. Xui^ent. \'l, 547. ESTOPPEL, I. Bv Record. II. Bv Deed. III. IN Pais. I. By Record. Judgment — .\[istake hy Attorney of Lci^al l-.ffeet of Signing Final Judg)nent for Part of Claim as a U'aiz'cr of Residue — Discretion, to Permit .Imendment.] — To a de'!;ir- ation on a special count upon a con- tract for hiriiig and the common counts, the defendant pleaded never indebted and a number of other pleas, and in each [ilea he excepted $430, parcel, etc. The plaintiff signed final judgment for the ?4."o, ;ind filed a joinder of is-ue, and gave notice of trial for the remainder of his claim. On an application by the defendant to stay the proceedings as til the balance forever, or for leave to plead the signing of the final judg- ment, it appeared that the plaintiff's t'.tiorney, in signing final judgment, r »7 B8T0PPBL. 2«8 m\ f - w I. ■ ■ I' I i i: did not intend to abandon the excess of his claim over $450, but acted under misapprehension of the effect of that proceeding. The Referee made an order giving the plaintiff leave to amend his judgment and make it interlocutory only. The de- fendant appealed. Held, that there was jurisdiction to make the order, and it was rightly made. Smart v. Moir, VII, 565. Joint Judgment.] — A judgment against the contractor and his surety may be pleadec! as an estoppel against the contractor alone in an ac- tion by him against the other parties to the contract and their sureties. Smith V. Strange, II, loi. Judgment by Principal Against Agent — Xdt Estoppel as Betiveen Principal and Third Party.] — The plaintiffs, who had entrusted Reid with the sale of certain goods, recov- ered judgment against him for tho amount of a certain note, which in- cluded the price of the articles. Reid had exchanged the gnods instead of selling them, and the plaintiff brought trover for them. Held, that the jtidgment was no bar to the plaintiff's claim to recover the plow from the defendant. IVes- brook V. Willdu^ltby. X, 690. Master's? Report — Not Appealed from.] — The usual mortgage de- cree with a reference as to encum- brances was made. Subsef|uently the ^Master made a report finding that the plaintiff and certain of tlic de- fendants had encumbrances upon the whole land. Tlii- was not ap- pealed from. .Afterwards an order was made referring it to the Master to inquire whether as between them- selves any one or more of the de- fendants was or were entitled to be relieved from the payment of the plaintiff's mortgage, and to fix the order of liability. Held, that the defendants were estopped from denying the priority of the plaintiff's mortgage. Reirii'ick V. Berrymaii, III, 387. Compliance "With Part of Or- der.] — An order appealed from per- mitted the defendant to amend a paragraph of his defence within six days, in d«fault of which it was to be struck out, and the defendant availed himself of the privilege of amending that paragraph. Held, that by compliance with such part of the order, lie had not pre- cluded himself from appealing against another part of the order. Gowciiluck v. Perry, XI, 257. II. By Deed. Recitals.] — Purchasers are not estopped by a recital to the effect that they had agreed to purchase the land, and that such a recital does not operate as an estoppel unless the action directly founded on the in- strument containing the recital or in one which is brought to enforce the rights arising out of such an instru- ment. Pullerton v. Brydes, X, 431. III. In Pais. By Contract — Capacity of Cor- poration.] — The defendant pleaded that plaintiffs were not a body cor- porate or entitled to sue in this Pro- vince or to take mortgages by said name and style. Held, that this defence was not open to defendant, for a man cannot set up the incapacity of the party with whom he contracted in bar of an action by that party for breach of the contract. Manitoba M^old, along with those of his wife, under a distress warrant issued by the defendant II. to his co-defend- ant, for the purpose of levying an amount due by the wife for rent of certain premises, from which, before the seizure, all the goods had been removed with the fraudulent inten- 'tion of evading payment of the rent, the plaintiiT brought this action for damages. When the bailitT made the seizure, the plaintilf forbade him to do so, but he did not at any time in- form li. or the bailiff that he claimed some of the goods tt> be his ; and after the seizure his attorney wrote several letters to H., demanding that the goods be given up, and referring to them as belonging to the plain- tiff's wife. Counsel for defendants contended that the plaintiff was estopped by his silence as to his ownership of some of the goods, and by the language of the attorney's letters, from setting uj) the present claim. //(■/(/ (Dubuc. J., dissenting), that the defendants had failed to prove that they had been induced to do anything, or to abstain from doing aiivthing. by reason of what the l)laintiff had said or done, or omitted to say or do. and that the plaintiff was entitled to recover. Pickard v. S(ors, 6 A. & E. 460. distiiiguished. Mi'iiti^oinrry v. Ilellyar, IX, 551. Acceptance of Patent.] — Plain- tiff claimed title through B. to land which the City claimed to have been owned by R. and by him dcflicated as a street. Previous to any pat- ents. B. had owned south of a creek and R. north of it. Bv the Domin- ion survey a straight line was nm, disregarding the windings of the creek, and both parties accepted pat- ents according to this survey. Pre- vious to the patents. B. owned the land in question. Under the patents F ? ■ 271 EVIDENCE. R. owned it. B.'s patent was issued in March, 1875; R.'s in May. 1878. B. sold to plaintiff in 1871. and got some papers, which were afterwards given up and a new deed executed in May, 1872. The description in this deed by mistake only covered a por- tion of the land. In 1873 or 1874 B. gave plaintiff a memorandum show- ing what land should have been con- veyed, and on the 6th November, 1877, e.vecuted a projjcr conveyance. On ilie other hand. R.. assuming to own tlu' land in question prior to his patent in .August. 1874, registered a plan including this property upon which it api)eared as a street. R.. shortly after obtaining his patent and in July. 1878. conveyed the land to B. //('/(/, that B. and the plaintiff, as his assignee, were not estupiied by the patents from setting up the true own- ership. Wright V. Winnit'Cii. Ill, 349. Payment for Work — Action for Noii-Prrforimiiicc] — Payment for work and lal)or after action ))rougbt is no estoppel in an action l)y tlic em- ployer for non-cumpletion of the con- tract, or for delay. Siiiitli v. Strange, II. lOI. Sec Fl.XTl-RE.S. Sec MoMKSTrc.^D Right. Sec Patents for L.\nd. EVIDENCE. I. JrniciAi, Notice. II. Competency. III. Res Gest.k. IV. Best and Secondary Evi- dence. V. Hearsay. VI. DOCL'MENTARY. VII. Parol or Extrinsic Evidence Affecting Writing. VIII. Evidence at Former Trial or in Other Proceedings. IX. Weight and Sufficiency. X. De Bene Esse. XI. Cross-Refehpnces. I. Judicial Notice. Orders-in-Council.j — Judicial no- tice must be taken uf Ordcrs-in- Council bound up with the Dominion Statutes, in pursuance of 38 Vic, c. I. Re Stanbro, II, i. Territorial Divisions. ] — The Court will take judicial notice of thi' territorial divisions of the Province. Eastern Judicial District v. IVinni- teg, III. 537. II. Competency. Admissions of Judgment Debt- or — Xot Co}n{>ctcnt as Against a Garnishing Creditor.] — Interplead- er issue to decide the title to a sum of money claimed by the plaintiff un- der an assignment from H. for the benefit of his creditors as against the defendant, a judgment creditor of H., who claimed the money under a gar- nishing order attaching it in the h;,nds of C, who had paid it into court. Held (Dubuc. J., dissenting), that evidence of the admissions of the judgment debtor was not admissible as against the garnishing creditor, either on account of any privity be- tween them, or as evidence of declar- ations made by a pajty against his own interest (there being no proof of his death) ; and that, as there was no evidence to show that 'the money in question belonged to the estate of H.. a verdict should be entered for the defendant with costs. Bcrtrand v. Heainan. XI, 205. Admissions by Judgment Debt- or — Garnishment.] — In an inter- pleader issue between a garnishinji; creditor and a third party claimins ti,e attached money, evidence of an admission of the judgment debtor ;»■; to the right to the money is not ad- missible in favor of the third party. Bcrtrand v. Hcantan. (,1896) 11 M.R. 205, followed. The claimant was granted leave 10 have a new trial of the issue on pay- ment of costs. Marshall v. May, XII, 381. 273 EVIDENCE. 274 In Reply — Dividing Case.] — A plaintiff is not allowed, in presenting evidence, to divide his case, either by omitting to give evidence originally upon a material point and offering such evidence in reply, or by giving some evidence upon a particular point ill his original case and offering other evidence upon the same point in re- ply. In an action for damages sus- tained in alighting from a railway train, the defendants gave evidence that the train was in motion when the plaintiff was alighting. The plain- tiff, in reply, desired to contradict this evidence. There was a dispute as to whether the plaintiff's witness had touched upon the point in mak- ing the case. Held, that the evidence was pro- perly excluded because the fact that the train had stopped was a neces- sary part of the plaintiff's case, and if omitted could not be given in re- ply. Harvey v. The Canadian Paci- fic Railzi'ay Co., Ill, 266. Confession.] _ Admissibility of, discussed. Re G. A. Stanbro, I, 263. Character of Plaintiff — Adtnis- sibilily of Evidence as to an Action for Malicious Prosecution.] — The plaintiff, in an action for false im- lirisonment and malicious prosecu- tion brought against defendant, a constable, for arresting him for ob scene language, put in evidence a lirior conviction of himself and wife for keeping a disorderly house, which I'.ad been c|uashed on appeal, in order to show want of reasonable and pro- liable cause for the defendant's pro- secution of the plaintiff. Thereupon, the defendant cross-examined the pl.iiiitiff. and gave evidence as to the plaintiff's general bad character. Held, that such evidence was im- properlv received. Fitch v Murray, T. W.."74. Prisoner on His Own Behalf.] — On an indicttnent for assault and bat- tery occasioning bodily harm, the ac- cused, at the close of the evidence for the prosecution, asked to be sworn and examitied as a witness on his own behalf. The trial Judge held that he was not in a position to find that the only case apparently made out was one of common assault or assault and battery, and refused to allow the evidence. On a Crown case reserved — Jleld, that the accused was not a competent witness on his own behalf under R. S. C, c. 174, s. 216. Reg. V. Bonter, 30 U. C. C. P. 19; and Reg. V. Richardson, 46 U. C. R. 375, followed. Reg. v. Drain, VIII, 535. Witness Interested.] — A bond was executed in order to obtain a marriage license. It having been obtained, a form of marriage before a person without authority to cele- brate marriage, was gone through. L'pon an indictment for forgery of the bond — Held, that the issuer of the license was not an incompetent witness as a person interested or supposed to be interested. Per Diibuc, J. — Neither was the woman incompetent as a witness. Reg. v, Dcegan. VI, 81, III. Res Gest.€. Assault.] — A statement by the man that was assaulted, made imme- diately after the assault and in the presence of the accused, is admissible in evidence. Reg. v. Drain, VIII, 535. Onus of Proof as to License — Ci ininitnient — Conviction.] — The prosecution need not prove the ab- sence of a license. The onus is on the prisoner to prove its existence. Reg. V. Bryant, III, i. IV. Bf.ST .\XD SECON'n.\RV EviDENTt. Interlocutory Application Dis- posing of Rights. I — When per- sons interested in the subject matter of a suit in equity, who arc not part- ies to the suit. iK'tition the Court for an order or decree which, if granted, would establish finally vheir alleged F^ (llij: f ■ill: ;! |.: 276 EVIDENCE. 279 rights, and bring on their petition formally for hearing, it must be sup- ported by direct and not merely by hearsay or secondary evidence, un- less the Court, as a matter of indulg- ence, allows further evidence, either upon inquiry before the ^Iaster or before the Court itself. Gilbert v. Eiidcan, 9 Ch. D. 260, followed in this respect. It is otherwise in the case of a motion or petition pending investiga- tion of a claim put forward by the petitioners to have certain directions given to the Receiver in possession of the property. Allan v. Manitoba df North-Western Railway Co., re Gray, IX, 388. Interlocutory Application Dis- posing of Rights.] — On the argu- ment of appeal it appeared that a garnishee order had been set aside on the strength of an affidavit of the partner of the defendant's attorney based on information and belief. Held, following Gilbert v. Ibidean, Q Ch. D., 250, that as the api)lication to set aside the garnishee order was one that affected and disposed of the rights of the parties and was not merely interlocutory, it should not be granted on the material put in, which was mere hearsay evidence, and at best of no more weight than the evi- dence nn which the original order was made, and that the appeal should be allowed with costs. Braun v. Davis, IX. 539. V. He.\r.say. Contradicting.] _ One of the witnesses at the trial (Mrs. D. be- ing iiresent) gave evidence of an al- leged statement of Mrs. D.'s husband that a judgment obtained by her against her husband was fraudulent, and plaintiff's counsel contended that she was boimd to deny this, relying on Barber v. Furlong, (1891) 3 Ch. 184. Held, that such a rule as was ap- plied in that case was not applicable in the present case, and especially since the defendant, although sitting in Court, did not understand the language spoken by the witnesses. Thompson v. Didion, X, 246. See also Supra, IV. VI. Documentary. Public Documents.] — By the Im- perial Statute. 14 & 15 Vic, c. 99, s. 14, certain provision is made for the proof of books and documents of a public nature by the production of .-in examined copy, " provided it purport to be signed and certified as a true copy by the officer to whose care the original is entrusted." .\ copy of a book within this statute, certified by ".\. Russell, Acting-Sur- veyor-General," the originpl of which was proved to be in the Department of the Interior, in the Dominion Lands Office at Ottawa — Held, not sufficient evidence, with- out proof that A. Russell was the of- ficer to whose custody the original had been entrusted. McKilligan v. Machar, III, 418. Will, Proof of — Title to Land — Certificate of Baptism.] — Htld, \o prove title to land the original will must be produced and execution proved, probate is not sufficient. Held, that a certificate of baptism, signed by the proper official under C. S.. c. 16, s-s. I and 16. was admissible in evidence. Sutherland v. Young, I. 38. Executors' Title in Ejectment — Probate SutHcicut Evidence of Will.] — The Devolution of Estates Act, R. S. M., c. 45. s. 21, taken together with The Manitoba Wills Act, R. S. M.. c. 150. s. 20. and The Surrogr.te Courts Act. R. S. M., c. 37, s-s. 17, 18, 20 and 22, have made such a change in the old law that the pro- bate of a will is now the necessary and only admissible evidence of the title of the executors claiming in ejectment and it is no longer neces- sary to produce or prove the will it- 277 EVIDENCE. 278 self as {ormerly. Simpson v. Stew- art, X, 176. Registry Act.] — Held, that the production of a deed from the regis- try office with the usual certificate of the registrar indorsed was sufficient proof of the deed. Canada Perman- ent Loan and Savings Co. v. Page, 30 U. C. C. P. I, approved. Pritch- iird V. Hanover, I, 366. Patent — Copy in Registry Office Xot Proof.] — Held, I. That the copy of a patent filed in the registry office and produced by the registrar is not evidence of the patent. Pritch- ard V. Hanover, I, 72, Order of Court Lost.] — Question of necessary proof of an order of the O'nrt for the sale of a half-breed in- fant's lands, where the order had been lost, considered. Hardy v. Dcsjarlais, VIII, 550. Certificate of Grain Inspector.] —This was an action tried before a Judge and jury in which the plain- tiff claimed damages on a sale of a miinber of car loads of oats by sample on ilie ground that the oats delivered were not equal to sample. Tiie con- tract having been simply that the oats should be equal to the sample produced. Held, that the certificates of the grain inspector at Fort William were not evidence as to the quality of the oats delivered. Quintal v. Chal- mers, XII, 231. VII. Parol or Extrinsic Evidence Affecting Writings. Varying Contracts.] — The de- •• ;■ i'dant. having given a written or- j '■■ itr to the plaintiffs for a binder, it /(S v.as delivered to him, but he after- g'.v'ards returned it claiming that he A.'is not satisfied with it. At the trial the evidence showed that either at the time of the negotiations or after tiic order had been signed, a verbal agreement had been made between the defendant and the plaintiffs' agent to the effect that if the binder did not work to the defendant's sat- isfaction he might return it. Held, following Mason v. Scott, 32 Gr. 592, that if the condition sought to be proved was agreed to at the time of the signing of the order, parol evidence of it could not be re- ceived, as it would be a variation of and contradictory to the written con- tract ; and, if subsequent to the sign- ing of the order, no consideration for the plaintiffs' entering into it had been proved ; and that the plaintiffs' \erdict should be upheld. Lindley v. Lacy. 17, C. B. N. S. 578; Morgan v. Griffith, L. R. 6 Ex. 70; Ersliine v. Adeane, L. R. 8 Ch. 756, distinguish- ed, on the ground that in each of these cases the verbal agreement sought to be proved was collateral and on a subject distinct from that to which the written contract related. Satilts V. Eaket, XI. 597. Contradicting Bought Notes.] — The plaintiff, wishing to speculate in shares on the Montreal Stock Ex- change, employed defendants to pur- cliase certain shares there for him on margin. He knew that the defend- ants would employ a broker in Mont- real as their agent, and that the lat- ter would make the actual purchases, advance the balance of the money re- quired, and hold the shares in his own name as security. The plaintiff paid the defendants certain sums as margins on the pur- chases made, and afterwards brought an action against defendants to re- cover these sums as moneys paid on a consideration which had wholly failed, and relied upon the terms of the bought notes received from de- fendants, commencing: "We have this day bought for your account . . . shares .... stock." as evidence that the defendants should have purchas- ed and held the shares in their own names. Held, that evidence of the true agreement between the parties could be given notwithstanding the lan- guage of the bought notes, and that the plaintiff could not recover, al- though the defendants had not them- selves acquired any of such shares. Jackson v. Allan, XI, 36. ■W'i' r^ m; 279 EVIDENCE. 280 Guarantee in Writing — Ainbi- Suily — Parol Evidence — Sufficient me- vwraHdnin.] — The defendant by writ- ing under seal agreed "to become responsible for the debt coniracted by James Jones to The VVaterous En- gine Works Co,," but the writing did not state to whom he was to be- come responsible. Held (reversing the decision of Kiliam, J.), that parol evidence of the surrounding circumstances was ad- missible to explain the ambiguity, and that looking at the writing in re- lation to the circumsances, it was sufficiently shewn that it was the plaintiffs to whom defendant was to become responsible, ll^atcrous En- gine ll'orks Company v. Jones, VII, 73- Contradicting Deed.] — The plain- tiff sold land to the husband of the defendant, who sold to the defend- ant. The agreements were not in \yriting. For convenience, the plain- tiff conveyed direct to defendant. Upon a bill filed for a vendor's lien, Held, that, iiolwithstanding the statute, the defendant could show by parol a purchase froiii her husband, and to this extent contradict the deed. Brozcn v. Harrozvcr, III, 4.JI. Misrepresentation — May be Pro- ved though Contract in Writing.] — Evidence of parol misrepresentation is admissible, although a written warranty was given. Watson Manu- facturing Co. v. Stock, VI, 146. Collateral Agreement.] — tlcld, that where there is written but un- sealed agreement between a Corpor- ation and an individual, parol evi- dence cannot be given of a verbal collateral contract (of the nature of that set out in the pleadings) made at the same time by the Corporation. Great North-Westcrn Telegraph Co. V. McLaren, I, 358. Collateral Agreement.] — A. made an agreement in writing with B. that he. A. would cut certain trees into cordwood and would haul it to and deliver it at S. station; and B. agreed to pay certain prices, paying 80 per per cent, upon delivery at the station and the balance upon the completion of the work. Contemporaneously the parties verbally agreed that if till' contract price was not paid upon tlu' completion of the work the wood was to become the property of A., and that he was to be at liberty to sell it. Held, that evidence of this verbal agreement was admissible, even in an action to which third persons were parties. McMillan v. Byers, III, 361. Collateral Agreement.] — The de fendant entered into an agreement under seal with A., whereby the de- fendant for a certain remuneration agreed to cut cordwood on certain lands and haul and deliver it at a certain place. The remuneration not having been paid, the defendant claimed to hold the wO'-'' under a collateral parol agreement by which it was stipulated that, in case of de- fault, the defendant should be entit- led to such security. In replevin by a purchaser from A. of the wood, Held, that evidence of the parol agreement was not admissable (Du- buc, J., dissenting). McMillan v. Byers, IV, 76. Reversed, XV, S. C. R. 194- VIII. Evidence at Former Trial or IN Other Proceedings. Used to Contradict; Not as an Admission.] — The eaxmination of a party to an action, taken for the pur- pose of discovery, may be used at the trial to contradict the same party, but cannot be put in evidence as an ad- mission. Arnold v. Caldwell, I. 81, 155- Deposition, Admissibility of — Identity.] — At the trial of the pris- of.er, an official stenographer from the Province of Quebec verified the deposition of John S. Douglas, taken in a civil action before the Superior Court at Montreal, and stated that the prisoner resembled the person whose deposition he had taken in Montreal; but as this took place over six month= previously, he could not sufficiently remember his face to 281 EVIDENCE. 282 swear positively tliat the prisoner was really the same man, hut stated, liosv- cvcr, that to the l)est of his kiiow- lidge he was the same man, and that he had no doubt that he was the same man. Ili'ld, I. Following Reg. v. Cootc. L. R. 4 P. C. 590, and Reg. v. Con- nolly. 2-, O. R. 151. that the deposi- tion in question was admissihle in evidence, and could not he excluded umler section 5 of The Canada Evid- ence Act. 1893. 2. That there was siitYicient evidence of tin' identity of tJK- pri signer witli tin" person whose rRpnsition was put in to warrant t!u' Juilge in suhniittinp the deiiosition :ii the jury, the question of identity lifiiit; one entirely for them. Reg. v. iU'w^his, XI. 401. Depositions not Bead to Prison- er or Signed — Form of Taking Evidence.] — Where prisoner was charged with an extraditable crime. anil the evidence was taken down in the narrative form on the Judge's iintis. and by way of question and answer by shorthand reporter which wire afterwards extended by the re- pi liter, but were not read over to the witnesses or signed by them — Held, upon habeas corpus tliat there was no evidence — that is. no evidence that the Court could look at —as proof of the alleged crime. Re C. . I. Stanbro, I. 325. IX. Weight and Sufficiency. Proof of Seal.] — The sufficiency "t certain oral testimony in proof of cr.rporatc seal discussed. Moricc v. Baird, VI, 241. Ambiguous Evidence.] — Evid- ence that a certain act was done at or in Portage la Prairie will not be tak- en to apply to the town rather than the municipality or county of that name. Reg. v. Adams & Jacksot\, V. 153. Misrepresentation.] — Variance between misrepresentation as alleged and proved, discussed. Winnipeg & II. li. Raihcay v. Mann. VI. 40f). Misrepresentation.] — Weight of evidence U[)on question of misrei)re- sentation discussed. Citinniins v. Congregational Church, IV. 374. Corroboration _ Claims .-Igainst listates.l — Independently oi any statute, the practice of the Court of Equity requires that the evidence of a person seeking to establish a claim against the estate of a deceased per- son should be corroborated. Rankin V. McKencie. III. sj_^. Corroboration _ Participant in Fraud.] — Held, that although the .igeiit of the ilefendam was dead, and the evidence of the plaintitYs' father, who was mainly Ciiicerneil in the fraud complained of and directly iRiietited by it, was the only e\ idence to show that the agent was aware of it, it was competent for the trial Judge to believe him and no corrob- oration was necessary. The rule as to corroboration of the evidence of an accomplice is not one of strict law but only one of prudence, and does net api)ly to civil actions. 'I'razis v. .Milne. (1851) I la. 150. followed. .Slaiiiton V. Carron Co., (1853) 18 lUav. 146. and ]'ealnian v. Veatinan, (1877) 7 Ch. D. Jio. distinguished. Graham v. British Canadian Loan & IiiZ'estment Co., XII. 244. Corroboration — Denial in An- szeer.] — The rule as to requiring more than one witness to overcome a denial in the defendant's answer discussed. Cozean v. Britten, III, Liquors.] — Discussion as to whether intoxicating. Reg. v. Coul- ter. IV. 300. See also Ixiiii tmext ano Inform- ation. .See also Ixtoxicatinc, Liquors. Handwriting.] — Admissibility and strength of evidence as to hand- writing discussed. Re G. A. Stan- bro. I. 263. m t88 EVIDENCE. S84 «!♦■. m\ Identity of FarBons.] — Issue un- der The Real Property Act, as to whether the plaintiff acquired by conveyance from the patentee of cer- tain lands an estate in fee simple therein as agaiist the defendant. At the trial the difendant's counsel, at the request of piaintiff's counsel, pro- duced the letter;- ;iatent by which, after the recital tliut " B. \., son of M. v., in his lifetime, of the Parish of St. Francois Xavier and Bale St. Paul, in the Province of Manitoba," had applied for a grant of the lands, and had been found entitled thereto, aid that B. V. had since died intes- tate leaving him surviving "M. V., of the said Parish of St. Francois Xav- ier and Baie St. Paul, his father and sole heir-at-law," the lands were granted M. V. in fee simple. The plaintiff then produced an instrument purportinition, at Winni- peg, on 1 2th July. 1899. The evidence showed that Mrs. D. entered the grounds with a number of others, having in her pocket the purse containing the money ; that she stop- ped in a crowd to watch something that attracted attention ; that there was a commotion in the crowd, dur- ing which the prisoner pushed her or was pushed against her; that, just as this occurred, a constable saw the prisoner putting his hand in a fold of her dress which he took to be the situation of her pocket ; that the purse was missed within a few min- utes afterwards ; and that the pris- rmer, being arrested after an interval, had upon him money in bills and sil- ver, some of which were of the de- nominations of the money in Mrs. D.'s purse, but none of which could be identified as having been hers. Counf ! for the prisoner requested the trial Judge to reserve a case for the opinion of the Full Court upon the question whether there was suf- ficient evidence to have warranted the leaving 01 .iie case to a jury, if a jury had been sitting. This being refus- ed, the prisoner, with the consent of the Attorney-General, applied for i ZZBCtrTIONS. IM and obtained leave to appeal under jection 744 of The Criminal Code. Held, that the evidence did not raise more than a mere suspicion against the prisoner and was not suf- ficient in law to warrant a convic- bon, and that the prisoner should be discharged. Reg. v. IVinslow, XII, 649. X. De Bene Esse. Practice — Ex Parte Order.] — This was an application to set aside all order made ex parte for the ex- amination of B. as a witness on be half of the plaintiff. Taylor, C. J., decided that, according to the estab- lished practice, the order should not have been made ex parte. The order was therefore set aside. Holmes v. The Canadian Pacific Raihvay Co., y. 346. Sci XI. Cross-References. Appeal, IV. V. VI; Breach OF Marriage Promise; Criminal Law, I (b), V; Extradition; Frauds, Statute of; Fraudu- ENT Conveyances, XII ; Fraud- ulent Judgments ; Judgments, HI, X; Mortgage, VI; Sale of Land, III; Specific Perform- ance. EXAMINATION OP JUDGMENT DEBTOB. See Judgments, XL EXAMINATION DE BENE ESSE. See Evidence, X. EXAMINATION OF SURETIES. See Surety. ZXECUTIONS. I. Property Subject to Execu- tion. II. Issuance, Form and Requis- ite.s of Writ. III. Priorities. IV. Claims of Third Parties. V. Sale, VI. Satisfaction. VII. Setting Aside. VIII. Interest. IX. Cross-references. I. PROBeRTv Subject to Execution. A Charge upon Beal Estate.] — An execution creditor cannot, under a /i. /(I. lands, sell the charge which the judgment debtor may have upon the lands of a third party by virtue of a registered judgment. If the in- terest which a judgment debtor might acquire in such lands by docketing his judgment under the English stat- utes could be sold under execution, it would only be after such lands had been " delivered in execution by vir- tue of a writ." Abcll v. Allan, V, 25. Equity of Redemption.] — It is clearly the sheritif's duty, notwith- standing the use of the word " may " in the statute, to seize and sell the equity of redemption in mortgaged chattels when such e(|uity is valuable. Masscy Manufacturing Co. v. Clc- vicnt. IX, 35Q. Goods Under Distress.] — The property in goods not taken out of the debtors by a landlord's distress, a.'d the placing of execution in the shei-ff's hands, binds the goods sub- ject to the distress. The sheriff may make a qualified seizure subject to the distress, which will be binding upon the execution debtor and those claiming under him. 287 EXECUTIONS. 288 m Belcher v. l\iltiH. h C. B. ^X)8, fol- lowed. Macdonald v. Cumming, VIII. 406. Debtor not Equitably Entitled.! IiitcTpk'aclcr issue between plaintiff and Massey- Harris Cd. claiming un- der a chattel iiKirtK.'ine made in i^o.V by wlm-li defendant ajfreed that all the er()])s of grain which the mort- gagor inight from time to time grow on the land until the wlK)le principal and interest secured by the iiKjrtgagc should be paid, should be included in the inortgaKe, and t'uit the inortgaRor \v< uld from time to time nixm re- ((Utst execute such further mortgage or mortgages of sucli crops to the extent that such crojjs .should be ef- fectuaiiy held as security for the pay- ment of the debt thereby secured. The plaintitY's execution was not placed in the bailitT's hands until I'ebruary, i.Syd, and under it the de- fendant's crops grown in 1896 had been seized. //('/(/, that while the instrument re- lied on could give no title at law by itself, yet a Court of K(|uily would eiiforce the agreement to give the further security, and, considering that done which ought to be done, would attribute the title to the mort- gagee, and restrain others frotn in- terfering with the property to his in- jury, and that such a title can be as- serted in an interjileader issue against an execution creditor, and that section 4 of The Hills of Sale Act, K. S. M., c. 10. had not the ef- fect of doing away with the eiiuitable principle referred to, which existed independently of the statute. lunik of British Xorth .America v. Mcin- tosh, XI. 503. Debtor not Equitably Entitled — Growiiii^ Crot'S.] — In an agreement for the sale of land on credit, it was provided that the crops grown upon it .should be and remain the property of the vendor, and should not be re- moved therefrom until the then cur- rent ycar'.s payment of principal money and interest should have been made, without the authority of the vendor. Held, that, under this agreement. when the crop came into existence, the legal title to it was in the vendee, and no jiroperty in it passed to the vendor, but at most he had an iHiiiit- able right to enter and take the crop when it came into existence, or Id call for the execution of a formal and legal mortgage upon it; and that he had no title to the crop in question as against an execution creditor of the vendee, whose writ was placed in the sherifT's hands before the crop was sown. Clifford v. Lonan, 9 .M. K. 45.^ followed. Smith v. Tlie I niuii Haul:, XI, 182. II. Issuance, Form and Requisites OK Writ. Time for Issue — Before Con- firmation of Master's Report.] — Held, that under the usual mortgage decree, plaintiff has a right to issue execution immediately after the mak- ing of Master's report and before its confirmation. Cameron v. Mellroy, I, KJ7. Time for Issue. |— //.•/(/, that ex- ecution on a judgment, signed under 46 and 47 Vic, c. ::,], s. 21 ,as amend- ed by 47 Vic, c jr, s. 10. cannot be issued before the expiration of eight (lays after judgment has been signed. l\iii}; V. Leary, I. 340. Time for Issue — Costs.] — - A p.'irty entitleil to costs may proceed to collect the same by execution im- mediately after taxation; the practice of the Court does not require that any time be given for payment. IVood v. Wood. I, 317: II, 87, i(>S. Time for Issue — Appeal Pend- '".?•] — I. A plaintifT is justified, un- der rule 683 of The Queen's Bench Act. 1S95. in issuing executions and certificates of judgment immediately on judgment being entered, notwith- standing defendant has given notice of appeal to the Supreme Court; and although, upon the perfecting of the security for the apneal. an Order has been made setting aside the e.x- B; ii i J.; 288 28!» EXECUTIONS. 290 at ex- luidor iicinl- i»l be eight igiied. ■ A )roccc(l on iin- ractice ! that IVood iiuiiniis, tliL' phiimifT is ituiiii'd, attiT iliMiiissal of tin- appeal. Id the cmsis ft the executions and certitioate-i. Clarke V. Crcifiliton. (i8(X)) 14 I'. R. .?4, followed. 2. Tile order setting ;i-i(le the executions having reserveil tiu' f|uestion of the sheril'f's feis, l)iit ii'.aile no reference to poundage, such cainiot he ordered afleiw.iriN ui view i)f seciioii 4H of 'i'hc Supreme C convicted under an iiidictnient clLiiginR him with unlawfully and Wilfully (il)structing a sheriff's nflicer 111 the execution of three writs of fi. fit. It was stated in each of the wills that the judguiein u[)on which it was issued had been entered up on j,;tli ['ebruary. iXo-'., The judgnieius Wire in fact e 'l'ere<' u]) on ,?r(l i-'eb- ni:iry. 1887. L'poi, this piiut the trial Judge reserved a case for the iiliiiiion of the Court of Queen's r.cnch. Held, that the error was merely an irregularity which migiit be amend- ed, and that the prisoner was rightlv convicted. Fi'f;. v. Monkuhin, VlII, 5CK). Alins Execution — Loss of Writs.] -Where a writ of execution, after renewal, has been lost in transinis- Moii to the sheritT through the post office, an order may be made for the issue of a new ^rit iiiinr /to tiiii^c to li'ar the same indorsements and evi- (Idice of renewal as the origin:d writ: also that the substitnted writ should have the same force and ef- fect as the original. White v. Loxy- i''y. .^ Johns 44S. and Ileniiei: on J'.x- ecutioiis. i<7. followed. Dome v. I'lirt. I. Wend. 8q. distinguisheil. rub-child v. Crawford. XI. .^.^o. Renewal.] — Held, section 10.^ of Tile Administration of Justice .Act. i^f*.s. is not retrospective. Writs is sfed prior to that .\ct must be re- newed within one year. Ontario lUii\k v. (iai^noii. III, 46. Renewal.]— A fi. fa. having been te-ted 17th August, 1885 ,and renew- ed more than thirty ilays before its expiration — Held, not i)roperly renewed. U'at- eroiis V. Orris. \ I. 177. See also Ati'ok.nkv .wd Ci.ik.vt, I. III. Priorities. Writ not Intended for Execu- tion.] — Interpleader issue to try <|U(siion of priority between two writs of execution issued by the plaintiff ;ind defendant against the goods (if one I'ope. The plaintiff's execution was re- ceived by the sheriff in 18(^4 without any special instructions, none had afterwards been sent to the sheriff in any way, and the writ had been re- newed accoriling to the practice. The evidence showed that there was an riyreement or understanding between the plaintiff and Pope, who was a conntrv merchant, that the execution was not to be proceeiU'd with iiiuil other creditors |)ressed ; ;in(l Pope continued to carry on ihe business, boni-di! other goods from the three lirms for whom the plaintiff's judg- ment had been obtained, and tnade payments on account, the plaintiff and the creditors well knowing the dibtor's circumsiances, Xeitlier the plaintiff nor his ;ittorney had m;ide ■■iny inriuiry ,is to what the sberiff was doing, or reipiired him 'n ;iny way to nroceed. ffeld. following f'riii}:le v. Isaae. 11 Price, 44.-. and Kein/^land v. .Mc- .luley. I Peake. <)-. that the plaintitT's writ of fxecution was not in the sher- iff's h.ands to '"• executed when seiz- tne was maf't' i;; i8(/i tni'ler defend- ;int's execution, and th.at the latter had priority ;is it was issued liefore the plain! itT v'v sneci.al instructions for the sluTiff t : jiroceed. The ab- smce of the words " to be executed " from section 20 of The Ex -cutions \i-! makes no rlifference in its con- si rtiction. Ifacley v. Mc Arthur, XI. 602. -I iV' m 291 EXECUTIONS. 292 Claims or Tiiiuu Paktii:.-. i ii 1 w ■i W I-: ir 1 1 ! Binds from Deliveiy to Sheiitf. | — Indi'ljcndi'inly nf 4*) ^ 47 \'ic.. c. .p (wliich is 111)1 rftro>|y>ctivc), a writ of cxc\-utioii against goods binds from its di'li\x'ry to the slKTiff. (.'xccpt as against the title of any person ac- quired bdiui full' and for a valual)le consideration before tlie actual sci/.- ure, provided such person had not, at tlie time he acquired such title, no- tice that the writ, or any other writ by virtue of which the goods might be sold or attached, had beeii (''Uv- tred to and remained unexecutul in the iiands of the sheriff. ]'()iiiii; v. Short. J II, 30J. Claim by Judgment Debtor's Cestui Qui Trust.] — Upon a sale of lands by a trustee, the purchaser ]iaid a portion of the i)rice to the slieriff who held a fi. fa. tigainst the trustee. There was no evidence tJiat the i)ayment to tlie sheriff was otl'icr than in his ol'ficial canacity. On tiie contrary, there was evidence that bo refused to give a certificate to the purchaser that there were no execu- tions in his hands nniil the money was paid to him. //('/(/. that the cestui qui trust was not entitled to tiie money so paid as ngainst the execution creditor. Pt'r W'allbridge, C. J. — The money Ci uld not jiroperly be the siiliject of an iiiterple.'ider issue, federal Bonk of Canada. \. Tlie Canadian Hanic of Coniiiieree. II. J37. Purchaser Without Notice.] — Held, that K) iS; JO \'ic.. c. 97 (Imp.), is in force in Manitoba, and, th.crcforc, where the plaintiff, after a writ of fi. fa. had been |ilaced in the .sheriff's liands against tiie goods of a ji;dgmeiit debtr-. but before actual Seizure, g-ive to the debtor a valuable consideration for the goods, and ob- tained actual possession thereof, without knowledge of the writ, he ac- (piired a good title as against the ex- ecution creditor. Xelson v. Gurncv. T. W., 17,^ Purchaser Without Notice.] — Up; u the evidence — Held, that the plaintiff, who iiad purchased tlie crop from the wife, h.'id imtice of an e.xccntion against the liusb.-iiid prior to his iiurchase. i'arenfeaii \. Harris, III. .^_'ij. V. Sale. Of Land. I — An Act repealed the only statutory provisions under which real estate became bound by and c^iuld be sold under writs of fi. fa. The same .\ct iirovidcd that writs ih.eii in the slieriff 's liands " shall re- main in full force, virtue and effect, and may be renewed from time to lime." During the following se--- .■•inn another .Act empowered sheriffs to sell lands under writs remaining in their hands, Between these Acl> a bill was filed by an execution cred- itor on behalf of himself and all oth- er,-> to set aside a deed. Held, that under the former Act v.rits remained in the sheriff's hands in full force, but awaiting further legislation to enalile the sheriff {>> proceed: and that even prior to sucii fr.nher legislation, the jilaintiff li;id a snft'icient loens standi. The fVcsterr, Canaila Loan Sat'ings Co. v. Snoie. \T, 606. \'I. Satisfaction. Sale of Goods of Third Party — .Satisfaetio)! of Jndiinient — .■linend- ini; .Sheriff's Returns.] — Under plait;- liff's judgment and execution the sl'.criff seized and sold certain horses (.f the defendants. S. and M., claim- ing to 1)0 mortgagees of the horsis, attended the sale and notified intend- ing purchasers. The liorscs havin;; been sold, the mortgagees bronglu trespass and trover against the slur- iff. and recovered against him 1 li« aiiKUint for which he had sold the h.crscs. Plaintiff had indemnified the sheriff against damage by reason of the seizure and sale, and also by rea- son of payment tn him of the pur- chase money, atid tlie slieriff having I; 2!*:? EXECUTORS AND ADMINISTRATORS. 294 paid I'vcr the money to the plaintifT, tlw [ilaintiff paid tlio mortgagees the aiiiu'.int of tlieir verdict against the sheriff. PhiintitT then issued an alias a. ia.. taking no notice of the return fif the slierit'f to tlie "^^ evious writ of '■ money made and paid to the plain- tiff's attorney." //(•/(/, tliat the new /?. fa. sliouhi l)e set asitle. satisfaction he entered up on the judgment roll, and a summons to amend the sheriiif's return shouhl bo (hsmissed. Hainia v. McKcnzie, VI. 250. Money Paid by Debtor to be Ap- plied on Second Execution, Leav- iig First Unsatisfied— /Vion/^' of J-yt-ciitions.] — A ilebtor. against will '111 there were several executions ill the hands of a sheriff, paid him a Mini I'f money expressly to he ai)plied (II ihe plaintiffs' writ, which was not entitled to priority. Afterwards, on the money being claimed both by the plaiiiiitTs and the first execution cr-jo- itor. the sheriff ri.turned tlie money to iho debtor. /'(■/(/, that the plaintiffs were en- titled to recover the amount from the .'lieritf as money had and received for their use. Cohurn v. MrRjbhie, Sec Taxation, IX, X. VII. Sf.tting Aside. Issued in Bad Faith — Motion .ti^ainst, by Third I'arty — Attach- ment Obtained by .\ii:rcprcsciita- tii'u.] — Where an executi'Mi was is- stit'd in face of an order that it should nnt issue for a certain time, which I'/'il not elapsed — Held, that this was not merely an irrcRiiIarity, and that another execu- Ci'ii creditor might move ag.ainst it. 'llu sheriff having seized and sold cofids under the writ, it could not be set aside, but was declared to be (Iciied to have been placed with the sheriff on the earliest day on which it liroprly could have reached him. during a contest for priority between cNieiiiion creditor.s, if the sheriff, bv consent of both parties, proceeds and sells, an agreement that the rights of the parties is not to be effected will almost be presur.ied. ll'liitla v. Sf'eiiee. V. j,i)2. Issued in Bad Faith — Costs — Xo Action to be Brought.] — Upon in appeal from an order setting aside :ui execution — Held, that the execution was issued contrary to good faith and in viola- tion of an agreement, and the appeal ir.ust be dismissed, but without costs, unless the defendant would under- take not to bring an action for the seizure and sale of his stock-in-trade under the execution, Ashdoz>.'n v, IJcderick, II, 212. Ylll. Interest. Money in Sheriff's Hands.] — If eld. as between two exi'Ciition cred- itors the first is entitled to interest on his judgment out of moneys re- maining with sheriff, pending the trial of an interpleader issue. Wolff el a! V. Black; McKinnon et al v. r.laek. I. 243. Money in Sheriff's Hands. ] — A sheriff made money upon a number I if writs against the same debtor, and held it during a contest between the various execution creditors for prior- ity, Ilel' that the creditors obt;iining priority were not entitled to interest upon their respective clnims nut of the fund. Burnhani v, Walton, III, 204. IX. Cross- r-JKFERENfES. See Tnterpeeaper. I, II: Jinr.MEVTS. IX {last ease) ; Power.s. EXECUTORS AND ADMINIS- TRATORS. Plene Administravit -^ Co'ils.] --A defendant, sued as execiit(.)r. I ill n '■%■ 1 1? '; 295 EXEMPTIONS. •2% Wv ' pleaded /'/I'/k' iidiiiinislrai'it and an- other ])k'a. lie succeeded upon the first, hilt was defeated upon the l^c- (hhI. //(•/(/, that tlie plaintiff was entitled to the general costs of the action, and the defeiidrint to the costs of the issue upon which he succeeded. .\fiiin v. Short. II L'. C. C. P. 4,^0. followed. Mc.lrtliiir V, MacdoiDU'll. IH. i",?. Plene Administravit — C't'j-/j'. ] — To an action uijon covenant and in deiit against an administrator, the defendant pleaded as to $5,000. pay- ment, and to the whole declaration certain outstanding judgments and />/(';;<' inliiiiiiistrinit piuctcr. The plaintiff succeeded upon the plea of payment and the defendant succeed- ed upon the other plea. //(■/(/ ( Killam. }.. dissenting, af- tirming the decision of Taylor. J.), that the i)laintil"f was entitled to the general costs of the action and the defendant to the costs of the is^ue upon which he was successful Mc- Arthur v. Macdouncll. III. Ojij. Judgment Against — Form — ricadin^.] — A certiticate of a County Court judgment against "A. B.. ad- ministrator of the estate of X.." charges A. U. personally, and not the estate. Semitic — When an executor or administrator is made a iiarty to an action, as such he nnist declare, or he charged clearly in tliat character. /\'i' Joyce c'V .SV<;/Ty, \'I. jSi. Priorities.] — In the administra- tion of assets, a judgnienl ohtained against the deceased is ciuitled to priority over simple contract and specialty creditors. And it is not essential to the judgment that it should ha\e heen (locketetl. An as- sigiunent, therefore, made hy an ad- iriinislrator of certain assets for the henctlt of certain specialty and simple contr;ict creditors was set aside at the instance of a jiulgmciu creditor. rroulcihic Loan Co. \. Moricc. III. 462. Administration by the Court — Discretion.] — On an application hy a legatee for an order under rule 766 of Tlie Queen's Bench Act, 1895. fur administration of a testator's estate, the Court has a discretion to grant or refuse the order, although inure than a year has passed since the death of the testator; and, when ilie executors are doing their best to realize the assets and are in no de- faiUt, the application should he re- fused. /;/ re W Connor; O'Connor \. I'liliey, XII. ,523. EXEMPTIONS. I. PKOrEKTV RXK.MI'T. II. \'.\Kioi;s C.\SES. I. PRorKRTV Exempt. Privilege of Debtor Only.J— i:x- eniption from seizure under execu- tion is a privilege that can he claim- ed l)v the Shor't. Ill debtor only .iO_>. Horse and Harness .S'ci//,'.v. I — Held, that a harness, which wen goods seized under Voun^ — IVeigh horse and part of till an execiiiii';t against gi^ods, were i)ri\-ilegcd from 'Seizure under execution, under The Momestead Act, 34 \'ic. c. id. be::-!; the only horse ;ind b.-iniess of tlie (leblor. but that a -el of weigbiiis; scales was nut exempt. Xclsoi: v (,'urncy. T. W.. 17,?. What Lands Exempt — J p /•orlinniiienr.] — I'nder C. S. M,, r ,v. s. S3, only laiul actuall\- uinKv culti\-ation is exempt from cxecutinn; but lauds ui)on which houses. stabK'\ etc.. are erected are also exciipi. Where a whole farm was chargeaii'c i;:)(ler a registered judgment. ;ui'l only a iiortion of it under a fi. fa., ^i reference was ordered to the ma-iir to apportion the latter cliar'.iO {ll'orne v. Ilousely, ,? M. L. R. 347. followed). The costs of the -uit were added to the registered jmlu- ment and charged upon the wl^'o land. Harris v. Runlcin, IV, 11; ' ? [895, for s estate, to grant g\\ iiime nee the vheii \!r' be>i '.'J n iM ili.'- 1 be rc- yCoiuwr 297 EXEMPTIONS. 298 'T. -F.x- U'r execu- I he elaini- Yonni^ V. — II'.-M,'/i horse ami rt of the exeeuiinn I'ocil fr.Dii uiiler The 1(1, lieivi; ,s of tlie weiiiliii'i; Xclsoi: V. It - . ! r S, M.. ^■■ lally tiii'ler lexecutiiiii; les. stable'^. lo exempt. lehargealile [inetit. ait'l a fi. A-'.. ;t |the uia-ter I'V eliavno L. R. 5(7. It the -nit •red imk'- Ithe \vb"le Y. II- Building Used as Dwelling and Shop. I — A building in which i.s the liCiual residence anil home of a jtidg- laint debtor and not worth more than ?i.50O, will be exem])t under R.S.M.. I'. 5,'. ''• 4.^- fi'i^ni proceedings to real- ise the judgment, notwithstanding that the lower story was Iniill for and , s-s. whnlly used as a general store: and j land <-\w\\ a building, therefore, will not [lass to the assignee by an assignment for tile benefit of creditors under sec- tion ,^ R. S. .M.. c. 7. Bcrti\i)id v. Mu^iinssoii. X. 400. Value in Excess of Mortgage.] — lly t!le sub-seciinn suli^lilulr 1 liy 4') Vic., c. ;,?. s. ,? (.M. iS;X()). f,,r the original sub-section li of section 117 of The .Administration 1 .f Justice Act, iSS;, •• the actual residence or hniiic iif any |)erson other than a tanner " is exempt from seizm'e im- ilcr execution, "prdvidid the same (li.es not exceed the \alue of ?l,500; Slid if the same does exceed the value of Si. 500. then it may be olTered l"or \-.le." etc. 49 Vic. c. .^3, -. 4 (M. IS86). makes ibis exemption ajtply to proceedings in equity to enforce a iuclgnient. Held, that when the pr. -perty is mortgaged .it is nece^-;iry. because I'f the stattUe relatin.g to exemptions, that the equity of redemption should he ab"\e the ])rescribe(l \alue to make it chargeable with a iudgnienl d.ebt. Thi' Ontarut Haul: \. McM ichiit. Partial Occupation — .If/'iirtioii- incut of .l/('r/,i,'(i^'i'. I — The defentl- rmt, a married woman, owned a liiiilding stdiject to a mortgage. She I'ccnpied a part of it as a home (her hiidiand living elsewhere). ;uul rent- ed the rest to another for use as a -hi'p. There were sep.arate entrances '" the two ]iortions of the building, I'li'iti a hill to enforce a reL;isiered niileinent obtained against the de- fu!(l;,nl — Uril. 1, Tb;it the jKU-tioii occniiied ^ly ilic defend,-.m was exempt from ni/'iire or sab'., 2. That tiie portion rtiitrd was no acres iiui>t bo out-.ide tiie limits of ;niy city nr liiwn," The prov'x) wa?- liy 49 \ ic, ^ , ,^5. >. J, repealed. Held, that the repeal retideied hands within town limits i.'xempi from execution for debts incurred previous to the repeal. Defendant owned a homestead an;! occupied a house up- <'!! it for .■several years, lie himself w;is much absent in iingland, but lii> f.amily continued to reside there tm- til the 1st Oct.ober. 1SS9; when, with- out (lefendaiu's knowledge, they re- moved to another |daee, for the teni- I'.i rary puriinse merely of wimering th.eir cattle. In the foll.nving Marcli they return((l lo the homestead, ac- companied b.\' the defendant, l/iid. that in the alwence of evid- ence to ^-how an intemion to abaitd'm the homestead, "V tb.ai the plaimilY was in .any way misled, the cxeni))- tion still continued, .A cou\eyanco of a homestead by way of UKungage docs nnt |)reclude a cl.aim of exemp- tion from execution, Hi'chiii v irih-Ihniis. \1. .;_'!. Abandonment for Temi^orary Purpose.] — Defendant claimed that certain buildings seized in ,\ugn^t, iSiyS. under execution were exem])! under section 4,v sub-section (/.'), R. .^ ,\i., c 5.^ as being his actual re- sidence or home. The evidence was that in Septem- bi r, 1S07. defendant L'.aNC up his po- sition as Indian a.gent at Picrens Riv- er, and rented the buildings in ques- tion, in whicii he had been living, ;ind which he had erected on Cruwn land, to his successor in olTice, lie tlun Iniilt a temporary log house on an island about i' miles away, in which he lived with his familv, and ;1:I ' 5 299 EXEMPTIONS. 300 i ft wliLTc he maintained himself by fish- inj^. He afterwards tried to sell llie l)uil(ling ill cjucstion to the Dominion Ciuvernnicnt. lie swore that his absence was only temporary, and that, if he could nut get the Government to purchase, he intended to return and occupy the buildings as his own. Held (Dubuc, J., dissenting), that the buildings had ceased to be the actual residence or liome of the de- fendant, and were, therefore, not ex- empt from seizure. Dixo i v. .1/c- Kay. XT I. 514. Judgment Debtor Dead — Faiiiily Rcsidiiif: on Land.] — The plaintiffs recovered a judgment against the de- fendant as surviving executor of the estate of one William Kines. and un- der rule 804 of The Queen's Bench Act, 1895. applied for an order for the sale of a parcel of land vested in the defendant as such executor. The widow and minor children of Kines were living on the land. Held, that section 12 of The Judg- ments Act, R. S. M., c. 80. which prc^vides that no proceedings shall be taken under any registered judgment against the land upon which the judgment de])tor or his family actu- ally resides or whicii he cultivates, would not apply so as to prevent the sale of the land in- question, as neither the defendant nor his family resided upon or cultivated it. Statutes conferring exemptions or privileges in derogation of the gen- eral law nuisi lie construed strictly, so that the protection of section 12 does not continue after the death of the judgment delitnr, although his widow and children may lie living upon the properly: and ii fortiori, no exempiiou can be claimed when the judgment in question is recovered against the executor of the deceased debtfir. Thr Loudon & Canadian Loan & Agency Cd. v. Council. \l, US- County Coui't.] — No statute, prior to 40 \'ic.. c. .^5, made any lands ex- empt frotii ;i judgment registered tm- dcr The County Courts Act. A judg- ment registered before 40 \'ic. may be enforced after its passage. Hop- kins V. Beckel, IV, 408. Sec Homestead Rights. See T.vx.vTioN, n. II. Various Cases. Land Once Bound not After- wards Exempt.] — Defendant sold land to his father in 1882. Plaintitt recovered judgment against defend- ant in 1885 for $15,000, and issued //. fa. lands. In 1888 a decree de- clared the deed from defendant to his father fraudulent as against the ])laintiff. Immediately after decree the father re-conveyed the land to the defendant to cnalile him to claim it as exemi)t from seizure. Umil the re-conveyance, defendant lived with his father upon the land as a mem- ber of his family only; and the culti- vation was by or for the benefit nt the father, .\fter the re-conveyance, the father lived with the defendant, who resided upon and cultivated tlic land. Lleld. that the land was not ex- empt from sale under the H. fa. The land having once been bound by the writ, did not becom.c exempt l)y the ;icts of the defendant. McLatchic v. McLcod, VI. 432. Lands Once Bound not After- wards Exempt. I — After a iu'lu'- ment was registered the judgnieii: debtor took up his residence in a house which he owned, and clainud its exemption. //('/(/. that it was not exempt. L'ur: V. Clarke. V. 130. Judgments are Liens, Although Land Exempt from Sale.] — Ihe registration of ;i certificate of judg- ment under section 3 of The Juils;- nients Act. R. S. M., c. 80. con^*:- !ules a lien and charge on the land- of the judgment debtor, even ;i'.- thougb he actually resides thereon, or cultivates the same cither wh lly nr in part, and the effect of section IJ of the same Act is simply that, ^o"" 300 ;c. Hop- 301 EXTRADITION. SOSi >t After- idant si)!(l Plaintiff st defcml- ind issued (lecrte de- dant to his laiiist the icr decree land to the to claim it Until the lived with as a nieiii- d the culti- ; benefit of :onveyance, defendant. Itivated the as not cx- W; h. fa. und liy tlk' nipt by the cl.atciiic V. er lot After- :i ivii'.:-:- iudgnieir. nee in a claimed Lonipt. Ihir: Although The 10 nf iuds- Tbe judg- 8o. consti- 11 the lands even al- 1 hereon, or wh dly or section i^ iv that, so^ long as that state of affairs cimi- tiniies. no j)roce<\iings can be taken to realize the judgment out of the i.uid. Frost mid Driver & Dickson, Practice.] — Exemptions frf)in cx- tciuinn, under C. S. M.. e. t,~. s. .S5, s-s. 8. as anieiided by 47 \'ic., c. ih, s. '). discussed. Brimstone v. Smith, I. .lOJ. Difference Between Registered Judgment and Execution.] — Land exempt from seizure under execution may be made available by bill u]ioii a registered iudgment. McLean v. C'dlis, II, 113.' EXPROPRIATION. See Eminknt Do.m.mn. EXTRADITION. Evidence of Innocence _ Proof of I liiiiJieritin:^ — . Idmissihility of Confession.] — Held, i. That e'\-i- dence to disprove the crime charged i-' inadmissilile. 2. Admissibility and strength of evidence as to liandwriting discussed. ,^ Admis- sibility of confessions discussed. Ke Gcor'^e A. Stanbro. I, jo.^ Prima Facie Case.] — Prisoner \\a- charged with committing forg- ir_\- in tlie State of Minnesota. Held, upon the evidence, that ;i frinia facie ease had been made out, h'e Stitnhr(>. II. !. Identity of Charge — l-oreii:n Pef'ositior.t — Condensed D'ef'osi- tions — li':'idence for li.vtrndition — .Iccessories — .Stalnte I'ossed After R.vtradition Act.] — The information iijton which tbe original warraiU for the arrest of the prisoner issued \v;is sworn on the 20th June. It was af- terwards amended and re-sworn on the 211(1 July. The prisoner, in fact, came before the extraditinn Judge on the j6lh June. Tbe eaiitinn of the evitlence given before the Judge stat- ed that it was taken in the presence of the prisoner, "who is charged on the J6th day of June, iSSy. and this day before me," etc. The charge in the information and the caption of the evirder-in-Counci! — Proof of -•— {'rated Stales — Local Lme of ()ne S!ale — ■ Corroborative P'''idenec.\ — Judicial notice wi'l be taken of Orders-in-Council published v.ith The nominion Statutes pursti- m 303 FALSE IMPRISONMENT. 304 il! ;ini to R. S. C, c. _', ^. y. A'l- SUin- I'l-ii. J .M. K. 1, followed. A \\;inaiU of committal, uikKt Tlu' Extradition Act, of n fugitive to await surrender to the foreign state, after reciting the apprehension of the accused, that he had been l)rought before the Judge, and that the Judge had delermiued that he >liould be surrendered, contimied " liow a groiuid of detention under the stat- ute. /'(■;■ Plain, J. — If it were a warrant of conunitment for trial or for i)mi- ii-hment after conviction, it would be bad. The inforni.aiioii charged '.he ac- cused iioth wiih '.he forgery of a liromisxiry note and with th.c utter- ing of a fiu-ged note. //(■/(/. th;it tile information was not bad for dupliciiy. The information diargeil the ac- cused with forgery and lUteriiig forged i)apcr. After .-i large part of the e\idu;ce was given, the inforina- liciii w;i-- p.mended by changing the words " to the inteiU lherel)y then to (U fraud." in the charge of uttering, to " with intent thereby then to de- fraud." and the information was then re-sworn. There was no new jurat. Funiier evidence was then taken, but insuflicieiU in itself to warrant a com- mittal. //(•/(/, that the amendment was on a wholly immaterial point, and the extradition Judge could proceed with the incpiiry under the origiiuil and amended inforiuation. ;is one into really the s;ime cliarges. and use all the evidence tints taken in deciding :et!ier there were sufficient grounds ■•""•inittal. ' ' .-iccused was charged with the of. ■-■. if forgery and lUtering forg- '■> n ;)'••. at the City of Toledo, in the L .v. i Ohio, one of the United Slates (jf America. The evidence sliowed that tliese olTences were crimes under the statute law of the Slate of Uliio, but that there wa.s no law of the I'niled States a-^ a whole under wliich these offences would be crimes. Held, that these ol'fence^ were \' illiin the meaning of The E.xtrad'- tion Treaty between Great Britain and tile United Slates. Re Windsi'v, 6 B. & S. .^-'J. coiumeiited on. l\c I'lu/^l^s. I CJ. R. 380. and Rc^i. v. JUirkc. () .M. R. iji. followeil /'(■/' I'ain, J. — In extradition jn-i ce(.(lings. the evidence of interesuil parties need not be corroborated. I'i'r Killain. J. — Sruihh' — • Some evidence should be given to show that some reasotialile corr(jboraiing e\ idence. without which there could nevir be a coiuiction. was likely to be fcnnhcoming upon the iri.il. i'rr Killam J. — The telegriims sent by accused .'ii the lime of his arrest eorstituted >ome corroliorating evi- dence. A'l' McCiirtih-y. \'1II. ,V)7. Scr EviiiK.vn:, \"1II. FALSE IMPRISONMENT. Justification _ Ri\KUiih!l>l<' and Prdhiil'L- ('i;//,V(\ I — The defendant, the Chief of I'ojice for the City of \\'innii)eg. went to the |)hiiiuiff's hi use. anrought this action for false imprisoiuueiU and malicious prosecu- tion. //('/(/, that, even assuming the use of the abusive epithet to have been ;ui offence the defendant was not justified ill arresting the plaintiff in liis own house, the law constitutini: it an offence only when occurring on a public street, etc. 305 FIXTURES. ;!06 //(•/(/, also, thai there was no rea- cc-tial)le and proliable cause for llie I rii>i'cution of the plaintiff, filch v. .l/;;rn/V, T. W., 74. Constable — .Issaiilt — Sclf-Pc- jcucc — M isdircction.] — In an ac- tion for nialicimis arrest and false ii!.|iris()nnient againn a consiable. the k;.iin'd Jndge charged the jury t" siy whelher tlie defendant acted in ill? own defence, or connnilted the •ii-t assatdt. lie also told the jury il.al the defenilant was acting in his ctTicial capacity, and tli.it it wa> lor tlicni to fuid whether lie acted nialici- oi:-ly nv Imiia Hdc. llciJ. misdirection. J'ilcli \. Mur- ray T. W'., 74- FENCES. -Si'i- K.\n.itoinarv wav for FIRES, Agricultural Fires — .\'r^'//,s,'- >);i-.'. I — A person who starts a tire vn his own projierty for purjioses of lir.diaudry. although not bound at all lijizards to iirevent the sjjrcad of iirv t.) his neighbor's properly, is yet 1.1 und to e.\erci?-e cauiion and care liii li'irtionate lo the risk of tire .-1. leading and doing damage; and vliaicNcr falls short of taking every I'll caution tliat is reasonably po?.- mMc. under the circumstances, to piwciu the spread of the tire, will lie Ikitl to l)e negligence, for which the |.o, some smouldering embers were bb.wn into tlame and spread to the pl.-dnliff's properly, cau'^ing damage to him. The trial Judge found, as a fact, il'.at the defenilaiits li;td not been guilty of nesiligence, having useii e\ery reasonable precaiition to ex- tinguish the fire, and htiving had rea- sor, to belie\-e that it wa>; completely e.Mingnished. //(•/(/. thai the defendants' use of fire under the circumstances was ;i customary one f (. r purposes of agri- cidture in Manitoba, and was even ju'-tititd b\- The I'ircs Preveiuion .\cl. R. .S. .\1.. c. Cio; ;uul that, as they biid no; been guilt v of negligence, tiny were not liable 10 the id.-iintiff fiu' the damages cl.aimed. ( A'd." v. I.rs Cistcriicns h'rlor)iu-s. XI f. .^,^0. FIXTURES. Machinery. I — ,\ writ was issued to reci'xer certain iiiachiiicry in a planing itiill. I'lainiiff^ claiiiud the gi Oils a.- \'endors. under a iiire and >;ile receijit. l)eiend;inis claimed in-opcn\- ;is jiart '•{ the realty under a mortgago from the purdiaser un- der the same riceipt. On motion to set aside the writ — //('/(/. r. That replevin w.uild lie. 2. L'pon the afiidavits filed, that tiie m.-'.cbinery was ])ersonalty. ll'utcr- "Hs liu^inc Works Co. v. Hcnrv, I. w 80f FIXTURES. 308 Machinery.] _ McD. & McP. or- dered from ])laiiuirfs certain planiiiR mill machinery, at an agreed price, part of which was paid down, and notes were given for the halance. The agreement provided that, not- withstanding tlic payment and giving notes, the i)ro|)erty in tlie m.'iciiinery should nut pass to Mel), i^ McP.. i)ut should remain in the ijlainliffs until payment in full had been made. The machinery was placed in a building which was then used as a planing mill. Afterwards Mel). & Mel', mortgaged to the defendants the land upon which the mill '^tood. .Af- terwards McD. & McP. mortgaged the same land to the plaintiffs to se- cure the balance then remaining due to them. The parcels, after describ- ing the land, specified the machinery in detail, and ccincluded. " which are attached to the freehold and are to he considered as fixtures and not as chattels." The plaintiffs took this mi^rtgage upon the representation of Mci). & McP. that there were no in- cumbrances upon the property, and it was not intended by the plaintiffs to gi\e uj) their tirst claim to the ma- chniery. Held. I. That as between the plain- tiffs and Mel). & McF'. the machin- ery remained chattels, such being the intcnti(ttoin v. I>crr\\ L.R. 5 Q.B." 123, followed. Sun Life /issiiniiicc Co. V. Taylor, I.\. (S<). Machinery — listo[^pi'l — Kiiiht of I iipaiii I 'citdor to Recover Pos- session — Jislof^pel hy Tol<.'iii:^ Pro- ceedings under Mechanics' Lien .1(7. 1 — W. & Co.. having a contract to build an elevator for the dtfend- ar.ts, purchased an engine, boiler and iiiher machinery from the plaintiffs fill the terms that the ownership was not to pass until payment in full of the price which was to be paid in ca'-h on delivery, and that in case of default in p;iymeiit the plaintiffs were to be " at liberty, without process of law. to enter ujion our premises and take down and remove the said ma- chinery." PlaintitYs were aware that the irachinery was to be placed in the defendants' elevator. It w.is built into the elevator in such a manner iliat it would have become part of ihe freehold if both had been owned liy the defendants, but the evidence ^flowed that it could be removed without doing serious damage to the hi;ilding. I'laintiffs first took proceedings I'.nder The ^^echallic-' Lien, Act to ri.;di/;c the amount of their claim, Init afterwards aliandoned them. In the present suit the plaintiffs asked I hat the defendants might be ordered to (U'liyer tip the machinery, and to nermit the plaimiffs to enter the cle- \;itor and talce down and remo\e the nachinerv. and for further and other relief. Held, that the plaintiffs were en- titled to relief, but without deciding whether they should iiave permission to enter the defendants' premises and remove the machinery fir not, as they were willing to accept a decree for liaynieiit of the value of the machin- ery to be ascertained by a reference tf) the .Master, and it was so ordered. I'olson v. /h\i:eer. ij O. R, jj^; Ste- 'icns V, Harfix't, \t, A. R. y\j: and U'aterous li)ii^i)ie Co. v. Henry, j .\I. R. UK), followed. //('/(/, also, that the plaintiffs were not estopjud by h.aving conimencefl j)roceedings under The Mechanics' Lien .Act, as they had not gone on to jutlgment; Priestly v. lernie. .^ II. iK: C. 077, distinguished. The I'ttlean Iron Works Co. v. Rapid City Farm- ers' T.levalor Co., IX. 577. Hotel — 7' r a d e P i .v tares — //(•/(/, I. Prima facie an hotel is jiart of the freehobl. j. l*>nt if it has been erected by a teiiani for the pnr- p(>ses of trade, it is tfi be regardetl, in the absence of e\ idence to the contrary, as a trade fixture. t,. The right of a tenant to re- trove fixtures continues only during his original term, and during snch fnrther period of possession by him a^ he holds the i)remises uiuler a right still to consider himself as a tenant. 4. .\ tenant, who had C'lin- pleted n|)on the demised nremises a building, partly erected by a ffirmer tenant through whom he claimed, and which was erected and used by both ftir trade purposes, having held over after the expiration of the lease to the first tenant, and ha\ing subsc- qtHMitly been grnntefl by his landlord a new lease, with the usual covenant to repair and a proviso that the lessee should have the privilege, at the ex- piration of the term, fif renun-ing any liuilding erected fin the demised lands, unless the same sliould be pur- chased by the lessor at a price to be fixcfl by the lessee. Held, that undir the circumstances shown in evidence, the building re- mained the property of the tenant as a trafle fixture, aiifl could be remov- ed by him at any time during the term. Gray v. .]fcf.eitnan. HI, 3,^7. i 311 FRAUDS, STATUTE OF FORCIBLE ENTRY. Sec Criminal Law, iX. 312 FOREIGN JUDGMENTS. Srr liANKRIl'Ti V. Scr JlIICi.MKNTS, I,\. FOREIGN LANGUAGE. .V('i' ICvidk.nm:, \ . FOREIGN LAW. Sec BaNKKUI'TCY. FORGERY. Sec Cnimixai, Law, IX. Sec Lm)rtmi-.nt and Ini-okma- TIO.X. FRAUD. Pleading. I — I'lfcision ;is to allc- Ratiims lit fraud. Doii^an v. Mitch- '■II. 477. Rescision CcNIKArT, \' /■", I'raniL] — See Sec also Sai.f. ov Laxh, II, \'I; TkU.'^T.^. III. I\': I-'UAUDULENT CONVKVANCES ; 1'" R A T I) U L E N T JlM)GMENTS. FRAUD, DEED OBTAINED BY. Intoxication — /; v i d c it c c] — Plaintiff gave dcfoiulaiit a mortgage. ;iii(l si]li-ii'(|U'.'iitly cxcciilnl a coiucy- ■«\.ee to liini of tlu' i'f|iiity of redetiip- lioii. I'lainiiff asserted that tlie enn- \cyaiice was obtained from him hy fraud and wliile intoxicated throiit;h drinl< su|i|ilieil to him hy the defeml ant ;it hi> ( defend;ini's) liotel. Held, tliat the evidetiee did not es- i;ililisli the fr.-iiid eliarged. Held, that tliiiu^h iilaimiff was ;i hiird drini{reenient in writiiiR. the iilaintiff was entitled to recover tlie value of the land conveyed, which prii\ui fiicir was worth tlie amount the defeiuiani li.id agreed to' pay. .]f(Millini v. ll'illiiiiiis, () M. K. 1)2'. (listin>;uislH'il on tlie ground th.at |)l,iiiitiiy tlicre h.ul sued on the .agreement. I lobnwaod \ iiillcsfic, XI. iSn. Guaranty — Sufficiency of I.an- •^luii'.c. I — Tlie defendant hy writin.u ui'.der seal atireed "to hecame respon- sil'ie for tlie di'lu of James Jones to the Watcrous F.nRine Works Co.." I'lit tile writing did not state to whom he \v;is to hecniiu' res|)onsil)!e. //('/(/, th.at the writing was .a sul't'i- ciiiit memor.-indnm to satisfy tlir St:ttiile of l""rands. Watcrous liw^iiic Works Co. V. Jones. VII. 7.^ Principal and Agent --riircli,i.< ■ hy .ii^cnt in llis (^icn .Wniic] -— r'i.'iintit'f. desirous of inirchasing pro perty from one T.. employed defend - .-iiit ;is his agent to negotiate tlie pur iliase. T'efendant pnrcliased the I'roperty. u.sing his own money, a'ld tonjc the con\-eyanee to himself. Held. .alVirniing decree th.at defend- ;mi was trustee for iil.aintitT. and that lite Statute of Frauds w.as no protec- tiiin. Archibald v. (.iold.'stcin. 1. 8. 45. Proof of Performance by Parol. | —Tile Statute of Frauds does not rirovent the proof hy parol of liie performance of a condition preccd- ait. McCaffrey v. Gerrie. HI. .;"o. Trusts.] — C. owned land sulijeci to mortgages. For the purpose of se- curing O. .against some accomni'nla- tion indorsciiicnts. .she mortgaged tlie land to him. but in form the mortg.ige w.is to secure payment of 5!,?. 500. The tirst mortgagee took fore- closure proeeedings. A verbal agree- ment w;is then m.ade (as the iil.aintilT .alleged ) th.at O. should prove upon llis mortgage, siiould redeem the prior mortgages, borrow upon a new mortgage stilfieient to recompense liiiti, .and bold tlie eepiity of redemp- tion in tru>t for C. The iilaintilT prrcli.ased .1 indgnieiit ag.ainst C up- on wiiicii /(. ,'(1. lands .and a certiti- C'lle of judgment had been is>ued; and tiled a bill u|ion them claiming tli.it ( ). was a trustee for C. aiul asking for .a s.ale. The evidence sill wed that tlic pl;iintilT was simply the nominee of C. Held. th.'U the agreemen; iH'ing verbal, tiie Statute of I'r.iuds w.as a \alid defence. Watcrous v. Orris, VI, 177. .Si'i- ()/.V(i FsToii'i".!., II; .Mastf.r and Skrvant: Sai.i-: or (kiods, II. III. FRAUDULENT CONVEY- ANCES. I. Sr.NTlTK.S. II. Puoff.irrv .wii l\ir,iiTS Tu.vxs- i-!'i ciinveyed them to his (C. P.'s) wife I he conveyances were voluntary and intended as a " provision for the wife sii that she conld have a home." Pre- viiius to the date of the conveyances, I.iikI had become unsaleal)le in Em- erson, and the plaintitT's security was ■'dtogether inadef|uate. There was no direct evidence that C. P. had no lit her property sufficient to pay the debt, but there was sufficient to lead the Court to suspect it. The dceiU were not registercil, but were hand- ed to the wife, who was nut careful III k-eep them separate from her hus- band's papers. The husband con- tinued to collect the rents and to put them into the common purse for household purposes. At the hear- 3n IRAUDULENT CONVEYANCES. MH :iig, llie wife, witli.nit u itli(lr;i\viii« lur ;iii''Wi'r, ulTiTid in concern tn ;i ..ill' Miul a rati'alilc division aiimtijr all^ lii-r Ini-'haiul's i'it.Mlit(>r> ot tlic \>rn- 'Cll. //(■/(/, that till.' cnuviyaiicc \sa^ fr:.iilii w llie e.xistence of oilier property a\ailal)le for cri^liiors. Osluinw v. Cun-y. V. _',?7. What is Insolvency P I — The l.laiiililT. lieiiiK the a>si!inee of one Lanmnte under an assignnient for the liciK'tit of his creditors, brought this action to set aside a chattel mortgage on I.ainonte's stock- iu-tr;ide. made in fa\or of the defendants, on the jriHinid that Lamonte was at the tiiiK' in insolvent circumstances and luialile to p,iy his debts in full, and i;a\c the defendants the morltiatje as a preference over his other creditors. .\t the date of the morl,eaij;e. La-» imiUe, who was a retail merchant, li.id a .suri)lus upon his \aluation of h- ^took of about $1,000 .besides .a IiHce of land valued by him ;it $75"- IK' was carrying a stock of $i)00 (ir $1,000. and had a protit.ible and in- crc;isin£j business. Another creditor. i\- his claim was about maturinp;. no titled Lamonte that he insisted upon payment ; other consider;ible sums were already overdue or about ma- tnriuLj wdiic'h it was impossible for him to meet at once; and taking all the circumstances into consideration, tin proper inference was that, even upon the terms of credit on which the i^ale was eventually made. Lamonte cniild not at the time of making the liiortgage dispose of his assets for .sufficient to meet his liabilities. Held, that he luust be deemed to h.'ue been then in insohent circum- stances, and. as the giving of the iiinrtgage was entirely at his sugges- tion and there was no pressure on tile part of ilu- mortgagee-, it imi>t be (jeclared th.it the moriij.ige was \iiid as against the pl.iHiiilf. Paiid- smi V. I i(ii(^;liis, (iS(i,S) 15 (ir. .^47, and. Il'iinicrl: v. A'An'/'/Vr, (1SS7) I.; (). \i. J^S. followed; the latter (jualiti'd to meet the case of ;i man whose habilities are not wholly ma- tured and who could sell his property oil terms which will enable iiini to pay those which have matured ;iiid the others as they mature. Such a man sjioidd not be deenud i^ be in insolveiH circumstances within llu' iiHaniiig of the sl.itule. Hrrtriiiul v. (.'iiiuitliiiii kiihlh-r C'l'., .\ll. J7. IV. Co.NHlllKK.XTIo.V, Voluntary Promise.] - A volun- lary pronii>e to tr.ansler land will ivt be enforced in equity. '["herefore. wliere a homesicider. fri'c from debt. \ oluni.-irily promised before recom- nieudaiion to convey the land lo his wife, and after reconimeiul.'.tinn did so convey — 1 1 rid. that such convey;ince did not, by virtue of the previons prom- ise, cut out a judgmeiu regisU'red be- fore the e.Neculion of the coiueyance. Harris v. Kaiikiu, 1\', 115. \'. Co.\'riiiK.\Ti.\[. Ri:i..\'noN'.-;, Hired Man. | — Remarks upon the bona fidr.'i of a sale made to a hired man under suspicious circum>lances. Ilollhridiic V. Hill!. W. .Ui. Confidential Friend. |~ I. \[. M., trading as .M. iv Co., having bcvn carrying on a business, of which J. .\. .\l., lier husband, was the man- ager, became insolvent. The defend- ant C. a conlidenli.'d friend of J. .X. .M., recovered a iudgmeiu for $.v- 46S.22 against I. \\. ^L and J. .A. M. This suit was Iirouglu by the plain- tiffs, large creditors of M. & Co., to set this judgment aside. I. M. >L and J. A. M. refused to attend to give :|l!f^ 319 I'RAUDULENT CONVEYANCES. 320 id afUT- il. .i I- evidence al W'iiinipcij:. aiiU atlcr- wards at Spnkanc l'"alls. Wash., L'. S. A. Tliu cuiisi(k ration for the jud^uiciit was allcRod lo \k- $1,450 accoiiiinndatioii (japcr indorsed !>>• tlic dctiMidant C. and $J.ooo advanc- (.'(1 in cash in varyini;; aninnnts. for which no receipts had lucn given ami of wliich no entrie> liad hcen made. //(•/(/. I. That tlie transaction heitijj; one surrounded hy tlie ;.>re:Uesl doul)t and suspicion, and heing contrary to tile ordinary rules of husiness, could ni I he upheld on llie hare evidence of the defend.-int C. alone. J. That il w.is incunihent upon the defend- ;mi C. to h;ive pr()'— /'oi- sessiiu! I- to his wife all the personal and real in-niierty and life insurance wdiich he owned, and that he wouli! further transfer to her within oiu' .\ear other furniture to be selecieil by her to the \altie of $1,300 in ;ill. ;ind would within five ye.irs co-.i\e.> to her fiiriher real estate to the value of $5,000 and increase his life insiir- aiice in her favor to make a total of $10,000. and would keep and main- lain ihe same, rind would pay all las es. and would keep the real and per- sonal property insured and bear and m the luis- \vii\- the iiii. The answers did owe • hich the iho liear- lie plaiii- iic of the ho show- ng state- linic I'l e alk'^oi md eviil- made hy 10 wile's made hy evidence lieiiiR no orn slatc- their an- (lisnii-;seii :>idion. X, Marrici'^c •ssioii. \ — ■t in an in- intiff hav- aijainst the I in the is- furnitnve ion. ini- seizei'i. ijoods as if ?ale in pnr- ttlement. ted inst parties she hus- the eelo- ant and personal n^nrance le would thin one seleeted XI in all, s 0(v.i\e« the value ilo instir- total of nd niain- y all tas- and pev- liear and 321 IRAUDULENT CONVEYANCES. 322 lie sustain all expenses of the eoninion (Icniicile. The husljand was indehted at the time for the furniture in (juestion. and also to other creditiu'S, and the evidenee in this and other respeets sjinwed in the opinion of tlie Court that the settlement was entirely yol- in'tary and without eonsideration. and was not stipulated tdr hy the claimant as a condition of tlieniar- riage. hut was made with the imon- tion of putting all his property then owned and practieally all his after- aeiinircd property lieyond the reaeh (if his creditors. It appeared, also, that nothing had been done to carry out the coven- :inis in the niarri.-ige settlement for nearly two years until the execution of the hill of sale, which the hushand gave to his wile two days after the .■service of the writ in the action against him. It was admitted that he was then insolvent, and that he gave the hill of sale in order to pro- tect her as a creditur. and wiihi'Ut any solicitation or [iressure from her. //.•/(/. following ex parte Kilner. i,^ Ch. I). 24S. and ex tmie Bolhtnd. L. R. 17 Eq.. ri5, that the onus of prciof was upon the claimanl. and th.at both the hill of sale and the ante-nuptial settlement were void as against the plaintiff. Mereer v. I'etersou. L. R. .' Ex. 209. distinguished. (Jucrre. — Whether, if the scttlciucnt O'uld be considered as valid and l.inding. the liill of sale could be sup- ji'ited as against an execution credi- tf'!-. //(■/(/. also, that as the furniture in qnc'^tion had been, since the mar- riage, in the house occupied by the (Itfendant and her liusband. tlic pos- H-Mnii must be presumed to have lian his and not hers, and there was "•< change of possession at the mar- ru>K'\ Ramsay v. Marf^ett. (1894) -• (J. B. 18. distinguished. Brown v. ['cnce, XI, 409. .V((' also Hu.SR.\ND AND Wf^S. II. Parent and Child.] — The judg- nirnt debtor liaving rcc< ,cd notice of the judgment creditor s intended suit against her, went to Winnipeg, where her daughter was living, and sold her farm to her for the purpose of defeating her creditor's claim : but the daughter was not aware of i,cr mother's puqiose in selling, and not being informed of the threatened suit, paid her money in good faith and recei\ed a conveyance of the land. The daughter then leased the land to her brother, and the Judge found that this lease was also in good faith. The lirother cropped the land for himself, and afterwards the crops were seized in execution against the mealier. Held, that any such crops must be deemed to be the jiroperty of the son and not of his mother, as against the execution creditor. .Mthough fam- ily transactions by which creditors are defeated are ordinarily looked upon by the Court with a good deal of suspicion, yet when the evidence is clear and satisfactory they will not be set aside. McDonald v. McQueen, IX, 315- \T. Reserv.vtions and Trtst.s. Power of Sale at Discretion, J — .\n assignment for the benefit of crcdittirs empowered the trustee to sell the estate " when and so soon as tiiey shall deem exiicdient, in such manner and on such terms .... as they, or he, shall deem pro()er .... and with power for them or him to cancel or revoke any such sale, or withdraw from sale and re-sell with- out being answerable for any loss arising therefrom;" and the trustee was directed " to (lay and divide the clear residue among the creditors of the debtor ratably according to the amount of their respective claims. Held. I. The assignment was valid. 2. An assignee for the benefit of cred- itors, who is himself a creditor. luay render the a^sigllment irrevocable by acting under it. Henry v. Glass, II, Business to be Carried On — Re- serz'ation of Property Exempt from Execution. ] — An assignment for the HIM 323 raAUDULENT CONVEYANCES. 324 IxMietit of crcflilors cninaim.d tlic fol- lowing clauses: " I'mvick-d always tliat till' said trustee shall have power and autiiority. if he shall deem it ex- pedient ant! f(jr the general l)enct'u of the creditors, from lime to time and as often as lie shall deem it ])roper out of the proceeds of the sales of tlie said stock, to purchase giiods and stock for the purpose of enaliling him to assort and sell off the present stock to the l)est advantage for the henefit of tlie creditors, hut such purchase shall 1)0 made with such view only and not with a view of continuing the husiness heyontl a reasonable time Provided, also, that the said party of the first iiart, notwith- standing anything herein contained. shall have the right and jtrivilege if he .so elects .within a reasonable time, to reserve to himself out of the goods and chattels and i)roperty here- inbefore conveyed and assigned such pro])erty as would be exempt from seizure mider execution according tn the laws of the Prnvince of Mani- toba." //('/(/, that the assignment was not, b;. ■•eason of these clauses, \-oi(l as against crcditor>. Rohiiison v. Ilns- foii IV, -I. S:c Lcacocic v. Clianilh-rs, III. 645. \'II. Preferences. Preference by Executor.] — An administrator executed an assign- ment of certain assets for the pay- iiienl of certain scheduled creditnrs. Upon the evidence, the assignment was set aside as between the assignor and assignee, but there was a refer- ence to the Master to ascertain whether any of the creditors were entitled to any lien or charge upon the fund assigned. Froitcnin- Loan Co. v. Morricr, IV. 442. Preference by Executor — As- sigHinciit for tlic Benefit of Credi- tors.] — -An executor or administra- tor is entitled to prefer one creditor at the expense of another. He may even confess judgment to a creditor in e(pi;d degree with another suing him [lending the action and plead it in bar. and that altliough done fi_ir liie express purjiose of dei)riving the plaintiff nf his drbl. C. S,. c, 37, s. <)(). as to preferential assignments, dues not apply to executors or ad- ministrators. An assignment of all the assets of an estate for tiic benefit of some creditors cannm be attack'til by the otiiers. MeArthur \. Moc- dcnneH. Ill, 9. \'11I. I.VTF.XT — PKKSSfUi:— EFFErr. Intent.] — . The fraudulent intent nuist l)e that of bi)th parties. Tiieker V. y.'uui:. v. \V., i.S(), Pressure.] — The mortgagor wa~ indebted to the Bank on promissory Uiiies which had Ijeen renewed from time to tinte and i)artly reduced. The manager refused t(i renew again, and insisted on security, and the mort- g;igor gave a chattel murtgagc under the pressure. The manager swore iliat he did not know that the niort- gagnr had other creditors at the time, and the mortgagor swore that he gave the mortgage solely on ac- count of the pre-sure and to gain time. Ileld. that the mortg;ige was valid. Ontario Bank v. Miner. T, \V.. 1(17. Pressure.] _ 4() \'ic., c, 43, s. .' ( R. .'^, .M., c. 7, s. 33). provides liiiii " every gift, conveyance, etc, I'f goods, chattels or effects .... niaili by a p..>rson at a time when he is ;ii insolve-.it circumstances, or is unable to pay his debts in full, or know> that he is on the eve of insolvency, with intent to defeat, delay or pre- judice his creditors, or to give any one or more of them a preferencr over his other creditors, or over an\ one or more of them, or which iia- such effect, shall, as against thcui, lu utterly void," //('/(/, that the preference providul agiiinst in the statute is a voluntary l>refercnce, and does not apply to a chattel mortgage given under pre- - ure from a creditor, and a mere (!> - 325 FRAUDULENT CONVEYANCES. agor was •i)nu>sory ,vod fi'oni >cc(l. The igain, a'l.l ;hc mort- age umUr Tcr swore- 'the mort- s at the wore ilia; Iv on ao- r ID gain was valiil \V.. i(>7- 111 he is m is iinahk' lor know:- Insolvency. give an\ Iprefereiu-'' over any Iwhich iia- them, be proviilt-'l voUmtavv ipply t" :i Ider pre- mere i! - niand witliout threatening legal pro- ceedings is a sufficient pressure. Miilsoiis Bank v. llaltcr, i8 S. C. R. ,SS. and Stcplirns v. McArthiir. U) S. C.R. 44'). followed, fislu'r v. Brock. Mil. 1.37. Pressure.] — Pressure removes tran>action from the operation of the statute. Tucker v. I'oio/.i,'. T. \\'.. iSo: Bcrtrand v. I'arkcs. \"III. 173. Pressure.] — As to pre>sure. the C|Ue^lion to be determined is whether the debtor was actuated solely by a desire to prefer in making the as- signment, or whether the recjuest to d'< so was the moving cause. Decis- ion i>f Parke. B., in I'aii Castccl v. Booker, J E\. (nyi. followed. Col- quhoun v. Seagram, XI, 339. Effect.] — Transaction not neces- sarily fraudulent because its etTect is to defeat creditors. Tucker v. Vouiig. T. W.. 186. Effect.] — A creditor in g.:)od faith, and without knowledge that the del)i- or was insolvent, took from him a chattel mririgago. The transaction \ was straightforward and honest, but , the " effect " of it was to give the i I'l'rtgagee a preference over other 1 iTiditOCS. Ifcld. that the mortgage w.as void ' .'!~ ag.'iinst creditors. Stcl'liciis \. i'l-. htlnir, \'I, 496. j Effect.] — 49 Vic. c. 45. s, 2 (R. \ .■^^ M., c. 7, s. ,^Ti). does not make I \-id a conveyance or mortgage mere- 1 '>■ because its effect is to give ; 1 I'er. Scnihlc. — The addition of the vo ids, " or which lias such effect,"' h.i^ not extended the operation of the -■.iiute beyond what it would have IimI without them. W'l'ere a chattel mortgage effected . .ireference, but it was given for iual)le consideration and in rc- :'se to a bo)ta fide demand from '■' mortgage — Held, that the fraudulent intent V. as rebutted. Molsons Bank v. Ihiiter, 18 S. C. R. 88. and Ste[^iiens v. McArthur. i>igned by him to the plaintiff. Sub- sequently McD. & R. were served with a garnishee order in a suit of the present defendants against McL., ;\ttaching all monevs due bv them to A. D. -McL. McD. & R. inter- pleaded. Held, upon the evidence, that the .-issigmnent was only a contrivance and not a real transaction, and was void as against the defendants. Bate- inan v. Merchants' Bank of Canada, 1, j6o. Insufficient.] — Upon the evid- ence held that a transaction attacked, as fraudulent against creditors, was \alid. Steele v. Ra)nsay, III, 305. XIII. Disposition of Property or Proceeds, Grantee's Accountability for Proceeds of Sub-Sale.] — The de- fendant, having sold the notes after bill and injunction served, was di- rected to account for the money ob- tained for tiiem. Osborne v. Carey, y. 237- Grantee's Accountability for Proceeds of Sub-Sale.] — Held, w 331 FRAUDULENT JUDGMENT. 33:; ili h that ilu' right of a phiintilY to attack a transactidii l)y wliich projierty is coiueyi-d l)y the judpftiicnt debtor to a fraudulent gr;intce is derived from the statute, and goes no further than the setting aside of the fraudulent conveyance, and that a creditor can- r.ot take proceedings for that purpose after the property has passed from the hands of the fraudulent grantee into those of a purchaser for value. Neither has he any right to call upon such purchaser to account for any money still remaining due by him to the fraudulent grantee. The Union Bank V. Juirhour. XII. FRAUDULENT J; ..MT. Confessing Judgment.] — In jmr- suance of an agrc.ic. niadc bo- tv een the defendant H. v ■ ''O \. . then in insolvent circumstances) ;ih1 certain of his creditors, two docu- UH'nts were executed. By the first the creditors released H. from all li- ability in respect of notes lield for his indel)tedncss to them, and luider- tcok to indenmify liim against the payment of any such notes as might bo under discount. By the same in- strument the original debts were re- vived, and became immediately pay- al'le. By the second instrument the creditors assigned all their claims to the defendant D.. in order that an action might be brought for the re- covery of all the claims. It was at the same time verbally agreed that such an action should at once be lirought, and that defendant H. should facilitate the obtaining of the judgment. On tlie day after the ex- ecution of these documents, a writ was issued. Service was at once ac- cci)ted by an attorney for 11. De- clrration and pleas were filed on the same day. On the day following the defendant was examined on his pleas, and on the next an order was made strik-ing out the pleas, upon which judgment was signed, and ex- ecution issued. Upon a 1)ill filed by a subsequent judgment creditor — llchi. that the judgment obtaimd by D. was void, as against the pl.ini- tilTs, as being a fraudulent pretci- ei.ce. I'nion Bank of Loi\.'cr Can- ada v. Doui^lass, I. i,s.> Upon appeal — Held, reversing tlic judgment of Taylor. J., and follow- ing McDonald v. Cronihie, that the judgment was not void as a frauihi- lent preferences. II. 309. Confessing Judgment.] — In pursuance of an agreement made lie- tween the defendant McL. (who was then in insolveiu circumstances) ami certain ot his creditors, two docu- ments were executed. By the one. the creditors signing it agreed to release McL. from any lialjility upon any notes they had received from him th.en under discount, and to indenmi- fy him by retiring these at matiuMty. reserving. however, their claims against him in respect of the original consideration for which the notes we'"c given. By the other document lb. same creditors assigned and transferred all their claims against McL. to the defendant McK.. in or- der that one action might 1)e brought for the aggregate aiuount of the claims. The amount recovered to be distrilnued aiuong tiiese creditors pro rata. A writ was issued on the 26th June, and defendant McL. served. An appearance was entered on ^8tli June : the saiue day a declar- ation was filed and served, and a plea of payment filed for the defendaiii. The satiie day defendant McL. w;!< examined, and on the next day :i;i order was made striking out the' plea, upon which judgmeiu was sign- ed and execution issued. Upon a bill filed by the plaintiffs, who were suli- seriuent creditors — Held, that the judgiuent recovered by McK.. as against McL.. and the execution issued thereon, were framl- ulent and void as against the plain- litT-;. Hank of Xova Scotia v. ^f^^- Keaiid, I, 175. Consent Judgment.] — The de- fendant X. l)eing indebted to the de- fendants C. and S.. they commenced an action against him to recover the amount due. An acceptance of ser- 333 GARNISHMENT. 334 vii-c was given, appearance entered, (kclaratioii and pleas filed, an order 10 .strike out the jileas obtained, judg- ment signed and execution issuid all en the same day. Plaintiffs had also I litaincd judgment and execution against N.. and now fded their hill to set aside tlic judgment and execution obtained by defendants C. and S. On an ai-'plication to contiiuie an interim injunction to restrain proceedings unon the judgment of the defendants C. and S.— //('/(/. that the injunction should be continued till the hearing. I[7n7- lii!iii. V. Cooper, II. II. Judgment Whei-e no Debt Ow- ing- — Interpleader — Form of Issue — .liliiiissihility of F.fidenee Ciuler.] —The fact that a debtor facilitates one creditor in obtaining speedy judgment in a mode other than those prohibited by section 122 of The Ad- ministration of Justice Act. 18S5 { R. S. M.. c. I. s, 60). does not of itself render the judgment void as against other creditors. An iiuerpleader issue provided for the trial of the cpiestion whether the writs of execution of the plaintitTs against L.. or some or one of them, were entitled to prioriiy over the writ of execution of the defendant against L.. with resneci to the pro- ceeds of the sale of the goods and chattels of the said L. realized by the sheriff. Ifeld. that it was open to the plain- t-lTs on this issue to show at the irial that there was no debt owing fn.in L. to ihe defendant, and that the judgment was merely a fraudu- lent device to defeat, delay or defraud creditors, and so void as against the p'ainlilTs. L. was in financial diftictdties. and several actions had been begun against him by creditors, when the defendant, his wife, brought an ac- ti'tn on two sums of monev alleged to have been lent by her to I,. — $1,000 lent in iSS^! and Si.joo lent in iK*). I., was at that time heavily in debt. The first sum had been obtained for loss under a policy of fire insurance. The insurance, it was alleged, was on .srcods partly the property of L. and jiartly of his wife. The insurance was mostly 011 hotel furniture, which was paid for by L. The wife claim- ed iiart of the insur;ince to have been on her wardrobe, but there was no evidence to show its value or the amount for wdiich it was insured. L. effected the insurance, paid the pre- miums and received the insurance money after the loss. The second sum was derived froiu property that belonged to the husband and was conveyed t(^ the wife without consid- eration. The trial Jud.ge fnuid that the debts that L. owed at the time of these transactions were subseipiently ]iaid. and before anv indebtedness to the plaintiff arose. It appeared, how- ever, that L. durine this time was liot succeeding in his business, but running into greater debt. Ifelti. that the wife's judgment must be postponed to those of the other creditors. Xezeinan v. L\ons, VIII. 271. GAMING. See CinMiN.M. I..\w. IX. GARNISHMENT. I. Pki^soxs axp Proi'f.ntv Srn.TF.CT TO r,AKN-tS!lMF.NT. II. Pk(h F.i'.iuxiis .wii PR.vrxin-:. III. Oi'KKATioN Axii Effect. W. Q:-.\s!iixr, Ou'Ufi.!. \'. Claims of Thikp Parties. ''. Persons a.vp Propertv SfiijECi TO fi.VRMSIIMEXT. Claims Available by Equitable Execution. ] — Where A. has sold w }■:■ 89B OABNISHMENT. Iftii;: Iff \\M and conveyed land to B. under an agreement tliat if B. could at any time re-sell the property for a larger auKJunt lie would account to A. for the excess, there is nothing upon which to hase a garnishing order at the instance of a creditor of A., as there is neither any debt owing or accruing from the garnishee to the debtor, nor any claim or demand arising out of trust or contract which could be made available by e(|uitable execution, nor would it be proper in such a case to appoint a receiver un- der section 39, sub-section li, of The Queen's Bench .'Kct, 1895. The claims and demands referred to in rule 742 of the Act as re-enact- ed by 60 \'ic., c. 4, are those that would be available by e(|uitablc ex- ecution at the suit of the judgment debtor himself, and not at the suit of the jiulgment credit(jr. McFaddcn V. James Kcr, XII, 487, Damages — .issigiiuiciif of Debt by Drfi'iiditiit.] — A claim against a Railway Comjiany for damages for injuries sustained may 1)e attached by a creditor of the person injured. The fact that a defendant has assigned his claim against the garnishee is no reason for setting aside the att;ich- ing order. Gcrric v. Kitthcrford. Ill, JQU Debts Due to Defendant and Another,] — Cannot be attached. BriKi'ii V. Paris, IX. 534. Municipal Moneys — Xot At- tachable] — The treasurer of a muni- cipality is not, as such, a " tliird iier- son indebted or liable " to it within the meaning of section 8 of The Garnislunent Act, R.S.M., c. 64, and its fnuds in his hands cannot be at- tached to answer a del)t of the muni- cipality. Seymour v. Brown, 29 L. J. Ex. 243, not followed, London & Canadian Loan & .Issurance Co. v. Morris, IX, 431, School Taxes — Not Attachable — Public Policy.] — The plaintiffs having recovered a judgment against a school district, sought to attach the amount levied on the garnishee for rates or taxes imposed for school pr.rposes for the years 18S4 to i8yj, inclusive, in respect of lands of the garnishee within the school district. Held, that these rates or taxes did ntjt constitute a debt, obligation or lir'.b'liiy which could be attached un- der The Ciarnishment .\ct, R. S. M,, c. (.4, to answer a claim against the .School Board. Per Taylor, C. J.— The repeal of all former School Acts by The Public Schools .'\ct of 1890, put an end to the right of a .school district to col- lect any arrears of such taxes, and since the passing of the latter .\ot, school districts in Manitoba have no power to levy or collect taxes, but it must be done for them by the muni- cipal councils. The Inieri)retaiiiin Aci. R. S. M„ c. 78, s-s. II & 12. cannot be relied on to save the right of collecting arrears of taxes, be- cause trustees have not under the re- pealing Act any such right. /'(V Dubuc, J. — It would be against public policy to .allow the taxes lev- ied by a school district to be inicr- ctpted by an attaching order in favor of a creditor, because the trustee- might thereby be prevented from carrying on the work for which the corjioration was created, especially since the Act provides by section 234 an ader|uate remedy enabling a cred- itor to issue an execution with an in- dorsement directing the sheriff to levy an additional rate on propoity owners to pay off the judgment. Per Killam, J. — Without an ex- press provision in the statute to that effect, a public corporation cannot sue in a Court of law to recover tax- es levied on a ratepayer under the' l^nvers conferred by the statute, and although the former School Acts en- abled the trustees to take proceed- ings before certain tribunals to en- force payment of the taxes, the or- dmary relation of debtor and credi- tor was not thereby created, nor were the taxes thereby constituted a debt, oldigation or liability within the meaning of section 8 of The Garnish- ment Act, such as can be attached in the hands of a ratepayer to meet a debt of the corporation. Candida Permanent v. East Selkirk, IX, 331. m GARNISHMENT. 888 e aRaiiist axes Icv- l)c inter- ■ in favor trustees cd from ^•liicli the pcciaUy ion J.i4 :i cred- an in- 10 riff t.) ropevty 111. an CK- to that cannot nor tax- idor tlio lute, and .\ots cn- procecd- to en- tile or- d credi- nor were a debt. tliin tlie Garnisli- attaehed to meet CiDuida IX, 331. Trust Funds — /?(7i7//?.]— Moneys cclloetod ijy a bailiff under execu- tions and paid into wliat was called a trust account in a Bank — //(•/ an execution creditor, on whose e.vecution he receives money; not in any liense a trustee for him of the p;irticular fund. Re Monkmaii & (iordon; The Merchants' Bank of Canada, Garnishees, III, 145. Trust Funds — Debts Due to Trustee.] — Plaintiff sold a slock of gi.ods to defendant, and took a mort- g.-ipo upon it, and all goods which inislit be afterwards added lo it, as security for payment. At the same time an agreement was entered into whereby the defendant was to carrA- on business with the stock, and, after making deductions for expenses, etc, was to remit the receipts to the plain- tiff daily. Creditors of the defend- ant having attached, by garnishee orders, certain debts due to the de- fendant for goods sold in the busi- nc'-s — Held, that sucli creditors were not er.tiiled to such debts as against the plaintiff. Garnishee orders take ef- ftci only as against that which llie (kiiior can properly, and without vio- latifin of any other rights of any one else, grant. The Chattel Mortgage Act does not apply to such a case. Camf'hell v, Geiniiiell. VI, 355. Trust Funds — Onus of Proof 11 here Aecount a Mixed One.] — De- fendant, F..\., was at one time carry- ing on business in partnership with his brother, and plaintiffs recovered a judgment against the firm. He was also a County Court Clerk, and aeted as an agent for two insurance companies and two loan companies. In connection with these employ- nicnis he opened an account in a Bank, which was styled " Frederick Axford. trust," in which were de- ii'siied trust moneys or moneys re- presenting trust moneys. Plaintiffs. jiidgnient creditors, obtained an or- der garnishing the amount at the credit of the account, and then ap- plied to have the money paid over to them. The evidence showed that F. A. drew out from this account mon- eys for his own purposes, or moneys to rejiay other trust moneys received by him before the opening of this ac- c( unt, which he had used. Held, that the improper withdraw- al by a trustee of moneys from a trust account, and the improper use by him of moneys so withdrawn, can never deprive other trust moneys ly- ing at the credit of the account of their trust character. I'nless the money is money with which the debtor can deal as his own, it cannot be garnished. Where the account is a mixed one, the onus is on the party seeking to attach it to show that the money is the debtor's with which ho can deal, and in llie absence of proof that the account or sf) much of it is his, the mcney will lie treated as all trust money. In the absence of clear evidence that the balance in the account did not consist of trust moneys, it should be held to be so. Stohart v. .l.v- ford. IX, iS. Necessity for Privity between Debtor and Garnishee.] — The de- fendant was an Indian agent in Man- itoba of the Government of Canada, and was paid his salary through the Ijranch of the Ontario Bank at Win- nipeg. The Bank, without any com- munication with the defendant, placed two successive months" salary at his credit when due, against which at- taching orders were issued by M. the assignee of a judgment obtained by the Bank against the defendant. //■'/(/, that, notwithstanding what was done by the Bank, no privity having been established between it and the defendant, the money still remained under control of the Crown and could not be attached, McMick- en V. Clarke, T. W., 157, Necessity for Privity — Money in Court — Proof of fud^)ncnt in Interpleader.] — The sheriff, under a writ of fi. fa. goods, went to the 889 GARNISHMENT. 340 premises of tlie jiidgnicnt dcbtdrs. who were a firm of grocers, v.lieii lie found S., the landlord's l)ailitT, in liossessidn nnder a distress foi- rent, and he grne llie latter :i warrant {<> hold for him. 'J'he landlord's baililY sold the goods seized by auction to \V. on ,?otIi December, iXor, f(ir $_',- ojt. W. ])aid ;i deposit of $200. On -ind Jamiary. iS(}_', M. & Co. served a garnishing order on W. On the morning of 3rd January, iSqj, T. McK. & Co. placed a second execu- tion in the hands of the sheriff. On the evening of 3rd January, \V. tool< pr^ssession of the goods. After pay- ing the landlord and the first execu- tion, \V. ]);\\(\ the residue of the pur- cha.se money into Court under the garnishing order. An interpleader issue was directed, in which the gar- nishing cretHtors were made plain- tiffs, and the execution creditors de- fendants. At the trial, tlie execu- tion creditors proved the writ of ex- ecution, but did not prove the judg- ment, and the evidence was conllict- ing as to whether the property in tlu' goods passed to W. on 30th Decem- ber, the day of sale, or on 3rd Janu- ary, the day he took possession. Ilchl. that the purcliase money was owing Xo the landlord or his bailiff only, and that there was no privity l)etween the jjurchaser and the judg- U'cnt debtor, and no attachable debt ov.ing from the purchaser to the ju.dgment debtor, iifiiiis v. U'riiiht. 2 H. i*t N. 5J7. and Yates v. llast- -ivood. 6 Ex. 805, followed. Ifcld, also, that the money having been paid into Court under the gar- nishing order, the garnishin,g credi- tors iiad a f^riina facii' claim upon it. and notwithstanding the form of the issue, the onus was on the execution creditors to prove their claim. //(■/(/, also, that the right of the second execution creditors to the motley depended wholly on the time when the property in the goods pass- ed to the purchaser, and as the evid- ence was conllicting and uncertain, there should be a new trial ui>on tliat point. Held. also, that it was necessary for tlie second execution creditors to P'.o\c. as against third parties, a judgment as well as an executi.ui. i\ new trial was directed, with, ut costs to either party. /'(T Killam, J. — The second ex- teutioii creditm-s having f.-iikMl to ])ro\e their jinlgmeiit, should pay the costs. MiicddiuilJ V. Cttnuiiiniis, VIII, 406. Foreign Corporation.] — Appli- cation l)y defendant to set aside .-i garnishing order. The debt alleged to be due by the ganrishees was in respect of a life insurance policy. The Insurance Com])aiiy (the garn- ishees) had no office in the Province. L. & K. acted ;is its agents in W'iii- iiijieg. lia\ing power merely to re- ceive applications for insurance. Tlie premiums were payable at Montreal, and the amount insured in case nf death was also payable at M'nitreal. J J eld, that as the Insurance Ciiii- pany could not be sued in this Prnv- ince, the garnishing order should lie discharged. Mc.lrtliur v. Macd n- cU. I, m- Foreign Corporation.] — . Wlun it is sought to attach moneys in the bands of a corjioration. it must be shown that the Company lias an ■of- fice in this Province, and is carryint; (Ml business through some branch ^r agency here. In the case of the Northern ,\- surancc Company, garnishees, it ap- peared that the head office was in Abnitreal, and that it had no office in this Province; although there were persons here who received app!ic:i- tions for insm'.'ince. and jiending ilio teference of these to Montreal, wrre empowered to grant temiiorary in- surance for thirty days, but all ap- Iilicitieiiis had to be sent to the lieail ol'lice. where they were accepted •<': rejected: the jiolicies were issued at Montreal, the premiums were payable there, and the amount assured wa-, in case of loss, iiayable there also. Held, that this Company could not lie said to carry on business in tins Province, or to be within the juris- diction, so as to admit of nionevs due bv them being garnished, .b'r- Artltur V. Maedonell, i M. R. 3,;4. 341 GARNISHMENT. 242 .inil I'lirhi-r v. Otlcttr. 15 1'. R. 69. tulliiwcil. lU-aiii! V. I'd'i'is. IX, 534. ^rc' (;/i() .MukTGAGKS, 111. II. Proceedings and rKAciicE. Equity Practice— /'oti'.t /o t/i/ni- w/(. I — Held. atTirining ihe dfilcr (if thf Rufcrcc. that uiukr C. S., c. ,^7, s. ;S, the Court has power to issue g.irnishinR or attaching orders in niiiitv suits. Ciiiiicroii v. Mcllroy. I. I'jS. Sufficiency of Affidavit — Action l\iuliii,!^. I — Held, thai tiie oniis^ion t77. Sufficiency of Affidavit — I'ro- culttrc rrcsirihcil hy Slatiilt'.\ — An artidavit, nii wiiicli a garnislRu order was obtained, stated that " I iiave reason to Ijciieve tliat Ci., as tiie Clerk of the Kxeeutive Council of Mani- toba, is indebted or liable to M,. one of tlie above-named judgment debt- ors, in the sum of $_'oo; " bui omit- ted to st;ile that the n'l'ii'-'^h'-'^-' " '^ within the jurisdiction of the Court." Jhid. that the affidavit was defec- tive, and that the order issued on it was a nullity. ICnactnients prescribiiifj procedure ill the Courts are to be construed as imperative. McKay v. Xaiitoii. 7 M. R. jso, followed. French v. Martin. Mil 362. Abandonment by Attaching Creditor — Costs — I'oriii of.\ — .\ garnishee, upon the first return of a siumiions to pay over, filed an affi- davit alleging an assignment of ihe debt by the judgment debtor ])rcvioii< to attachment; and also denying the eixstence of the i In- iudgmcnt creditors. .Ihell v. .■J//1I11 III. 4U7. L'lion appeal — //('/(/ (affirming Killani, J.), ili.it the service of a garnishee attachiim order binds the debt ilue by a gaiir ishee. but cb^es noi transfer to tht jilaintiff the --tcuriiies held for tlu' (Itbt or give any right to take advaii- t.'ige of the position of the debtcjr in respect of such securities, .ll'cll v. . Ulan. V. 25. Payment Under Attaching Or- der — Xot Xiwssarily a Dischari^i'.] — One Henry Foulds. having leased ;i parcel of land to the defendant, as- signed the reversion to trustees tor the plaintiff. On 1st .Xpril, iSij;. the defend.int owed $yo for rem >if the premises, and soon afterward- a jiulgment creditor of Henry Foiilib olnained an ortler attaching tlii> rent In May following an order was ni.ule for the payment of the $90 to the judgment creditor, no one appearing to show cause so far as the order showed. Thereupon the defendant liaid the rent as required by the or- der, although he had notice of the assignment, as the Judge at the trial found, before the service of the at- taching order. The plaintiff then brought this action to recover the $00. Ifeld. I. That the payment to the garnishing creditor was no defence, notwithstanding that the order had not been set aside. In re Smith. 20 Q. B. D. 321. distinguished. 2. That it was not necessary for plaintifT be- fore suing to take proceedings und'T ride 425 of The Queen's Bench Act. 1895. 344 34.'> GUARANTY. 346 FECT. iditor _ — 11. :iiul v.; MoA, t B. and riKlu to ,. aii'l I'. iuUt tluit ids ..f A. i(ing>i ln~ V. Alhlll. J.), \\\:a attachiiii; y a Kanr cr to the tl f(ir the Ice advan- dcliliir 111 J /'■•// V. ;hing Or- yisclitirffc] ig leased a [iidaiU. a5- VI s tecs for pril, 1^9?. rent of rwards a iMUilds this rent. AS made )o to the ipearing the order lefeiidaiU )v the or- ' of the the trial f the at- iitiff then cover the :nt t'. the defence, irder had Smith. 20 2. That aintiff bc- iigs under cnch Act, y That notice nf the assignment >hinild liavi' heen given i>y the tnis- ta'S. as ref|iiired hy the statute, 4 & ; .\nne, c. 10, s. 10, Imt as defendant jiad reeeivtd notice no elTect should jiC given to this nhjection, fnlli)\ving Lunih'y v. Ihnliison, 16 East. 199, l-Kiihis V, Clhuubcrs, XI, 300. IV'. QiwsiiiNr. Okdf.r. Jurisdiction of County Court Jud^e -• (.ianiisliCi- (hit /' hirisilic- tu'u.\ — A Cniinty Cmirt Judge has power to set aside a garnishing order made in a Queen's Bench action. A Rarnishing order was sei aside upon It appearing that the garnishee did lint reside witliin the jurisdiction, hilt was tiiere, when served, only tunpnrarily, PicL' v. ///(.;■/;. w. \', 250. Jurisdiction of County Court Judge. I — .\ County Court Judge lias power not only tn grant a gariii- -Irm 'Uacliing order in a Queen's B' -ase. l)Ut also to set the order ,T iniproperlv issued, Tlioinf- ic. allacc. Hi. 686. \'. Claims of Third P.\rties. Payment into Court — Suggestion of Third Party.] — Garnishees paid the money attached into Court, mak- ing no suggestion of the existence of any other claimant. Upon plaintilif's iii'ition for payment out, two of the defendants contended that the garni- shees were not iiidehtcd to the de- fendants at all. hut to another firm. f'f which the defendants and another vere members, and of whicli one M. was assignee. An order was there- fore niaele for the trial of an issue between the plaintiffs and the assig- nee as to whether the garnishee was indebted to the defendants. The plaintiff appealed. Ifrld. that, inasmuch as the gar- nishees had not made any suggestion of another claimant, the order should have directed payment lo the plain- tiffs, ami the a>si)riK'e be left to his aciioi\ against tlu' garnishee, Rob- rrrs v. J'ruth. H Q. U. [). .^k). dis- tinguished. Oiiliiriu liaiik V. ILig,- gart, \', J04. Interpleader — Gariiishrt' Cliiim- ing liilnrst ill /•"ion/. | — .\ gariiislue- iiig order having been served by plaintilfs. the garnishees jiaid $067.46 into Court, suggesting the names of several claimants to the fund. One I if these. I""., hail commenced an ac- tion .against the garnishees, claiming $1,000 to be the amiuint due. Upoi> a summons taken out by the (ilaintilfs an order was ni.ide barring ,ill the claimants except the iilaintitTs and I'. ( inchuling the assignors of I"".), staying I'.'s action and directing in- terpleader between P. and the plain- tiffs. Upon appeal — Held, I. That the order might pro- perly have barred the other claim- ants. 2. That the interpleader oider could only be made at the instance of the garnishees. .^ There being a dis- pute as to the annnint due by the gar- nishees, they could not obtain an in- terpleader order, Merchants' Bank V. McLean: Henderson & Ball. Gar- nishees, V, 2ir). GAS METER. Sec Contract, II. GUARANTY. Guaranty or Agreement t o Guarantee.] — The proper construc- tion of the agreement was that it provided for the execution of some further instrument, and was not one of present guaranty of the notes to be given in future, and as this was not an action for neglect or refusal to enter into a guaranty, the plain- tiffs were not entitled to a verdict or to have the judgment in favor of the defendants set aside to enable them to change the form of the claim. Sylvester v. Porter, XI, 98. 347 HOMESTEAD. 348 HABEAS CORPUS. Sec Ckiminai. Law. I (a). HI; Evi- DEXci:, VIII; Infants, II. " r iill' HALF-BREEDS. Sec Iniants,, I. Sec Ta.xation, I. HANDWRITING. Sec EviDENci:, IX. Sec EXTUAUITION. HIGHWAYS. Sec Information. Sec McNicirAi. Cori'urations, IV. HOMESTEAD. Execution Against Owners.] — Under s-s. 13. s. 34, 42 Vic, c. 31. homesteads cannot be bound by ex- ecution in the sheriff's hands prior to patent. Since tiiat Act a certificate of judgment will bind the homestead of the defendant immediately after recomiuendation for patent. Harris V. Kaiikin, IV. 115, 512. Agreement to Convey — Pre- emption — Forfeiture — Lien of Ven- dee for Purchase Money — Laches — Issue to Try Facts — Costs.] — A statute declared that all assignments and transfers of homestead rights before the issue of the patent except, etc.. shall be null and void. By an- other clause the homesteader might acquire a pre-emptive right to other lands, " but the right to claim such pre-emption shall cease and be for- feited upon any forfeiture of the I homestead right." A homestc.Tder liefore patent agreed to sell both iiomestcad and i)re-emption. $50 was paid at once, and the balance was to be paid when a deed given with a good- title. The vendor applied for a certificate of title to the pre-emp- tion, and the purchaser filed a caveat, and on it a petition claiming a lien tor the purchase money. //(■/(/, I. That the agreement was not illegal as to tlie pre-emption. 2. That the Crown not having taken ad- vantage of the furfeiture, but issued the patents, the purchaser acquired a ben upon the pre-emption, althnngh pidbably not on the homestead. 3. The petition was defective in not showing the petitioner's claim of title. 4. Such a petition need not sluiw upon its face that it is filed in time. 5. Lapse of time which would (lisentitle a purchaser to specitic per- formance may not afi'ect his lien. 6, .\ disputed question of fact not tried upon affidavit, but an issue directed and form given. 7. No costs of ap- peal given when point upon which case was disposed of was not argued. Clarke v. Scott, V, 281. Assignment of — Before Liccom- incndation — IJcn for Improvement.] — All assignment of a honusicail right previous to reconimendatimi !< M>itl, not only as between the ImiiK- stcader and the Crown, but al^' af between the parties to the transac;io:i (overruling Dubuc. J., and Wall- bridge, C. J., dissenting). In such a case the assignee would be entitled a- against the assignor, even to a lien for improvements placed by the for- mer upon the propertj'. Harris v. I\ankin. I\', 115. Conveyance before Recommen- dation — J-stoppcl by Conduct \ — Defendant C. homestcaded certain land in October, 1880. He wa< a clerk in plaintiff's employ, and being desirous of obtaining a loan trim plaintiff upon the land, conveyed it to defendant W. on ist January, 1883. At that time he had no re- connuendation for patent. On the 26th January. 1883. he purchased the land under 42 Vic, c. 31, s. 34, s-s. il I i. 348 csteailer ;11 both $50 was i was to with a plied for [)ro-enip- a caveat, ig a lien iient wa^ |)lion. 2. lixkcn ad- ul issued Lcquived a altliniigh tead. 3- e in nut claim of need not is fileil in ich wi.nild ecilic per- s lien. 6. ; not tried e directed )Sts of ap- )on which lot argued. re Kccom- orcincnt.] homestead iidation is the hmne- lut alsii a^ ransactioii nd Wall- In snch a entitled a- to a Hen y the f'T- Hanis V. scomnien- Xnduct \ - ed certain iHe was a 1 and being loan fr.itn mvcyeil it January. tad n>> ri- On the Ichased iho s. 34. s-s. 349 HUSBAND AND WIFE. 350 !;. On 27th January \V. executed a iiuirtRage to the plaintiffs. C. re- ceived the money, made payments on account of interest, and asked time fur "ther payments. The patent is- sued to C. on 9lh June, 188.?. and afterwards W. re-conveyed to C, wh'i was. in reality, always the owner of the land. Upon a bill to foreclose the mortgage— llchl, I. That the mortgage was not void, for it was made after the land had been purchased from the Cpiwn, and not while it was a homc- jicad. 2. That C. was, bv his cnn- ciitct, estojiped from saying that \V. had no title at the date of the niort- sage. and from claiming title in him- sdf under the patent. Tlic Manitoba Iii.'cstiiicnt ,4ssoiiation v. IVatkin^. iV, .157- Exempt from Seizure.] — Home- -tead-, although prior to patent and subsequent to recommendatirm ex- cn:pt from seizure under ft", fa., are >iiliiect to be charged by registered judgments, Harris v. Raiikiu. I\ , 5 1 2. Sec CofN'TV Coi-RT, III (c). HOTEL. Sec FlXTlkl--.s. HUDSON'S BAY COMPANY. Taxation of Lands.] — Sec St.vt- II ; Taxation, I, I. 1! HUSBAND AND WIFE. [ Marital Rights of Husband, II, Ownership as Between HfS- DAND and Wife. III. Separate Business. I\'. Convevances and Contracts to Convey. \'. Wife's Contempt of Court. \'I. Next Friend. \'il. Actions. I. .Marital Rights of Musiiand. Personal Property.] _ Certain moneys were settled t^l 339- III. Sei'akatf. Bcsixess. Liability on Contract.] — In an action brought to recover froiu the defendant, a married woman, tin.' balance of an account for goods sol i a;;d delivered to her— //(■/(/, that, in the present state 01 ihe law, debts contracted by a mar- ried woman in carrying on a busines- or employment, occupation or tradi. '11 iier own behalf or separately fro;,: h'.'r husband, may he sued for a? if she were an unmarried woman — that is, without regard to separate estate, ll'isliart v. McManus. I. 213 Liability on Contract.] Debt.- c 'lUracted by a married woman in c;a"rying on a business or employ- ment, occupation or trade, on lier own behalf separate from her liib- band, may be sued for as if she wer^ an unmarried woman— that is witli- out regard to separate estate. Wlien suing'a married woman, i" i^ necessary to prove one of two thine:.'; It luust be proved that she is carry- ing on a business or employment, oc- cupation or trade, separate from licr husband, and that the liability sued upon arose out of, or was contracti'ii in, connection with that separate bus- iness or employment, occupation -jr 356 357 liUSBAND AND WIFE. 358 claimed ) Court ler pro- ulgnicnt lusbaml, ;ban(l lo er. Ue- assign- ^ferciice, 1 not in 'ifc ; and ty Court 1 tor de- Id not be Inil thai to enable :o decide ramlu'ien; Seagram. ESS. — Ill an from the Milan, the goods sold it state of a mar- business or trade, ateiy frora [or as if man — ;eparate IS. 1. 213 — De•bt^ woman in cniploy- , on her lier bus- she were is with- tc. oiiian. i'. is wo thin?;s. is carry- viiicnt. "C- ;' from ber bility sued contracte'i )aratc bus- ipation "^r trade. Or, it nui>t be shown that the married woman is pussessed of separate proiieriy. upon wiiich it may be presumed she intended ilie liabil- ity incurred, or contract entered into, and which is llic su1>ject matter of the suit, should attach, and out (if ivliich it >liould he pai tliJ servant of the defendant in manag- ii!;^- a farm owned ljy her. and it wa? uinlerstood between iheri. ami de- fendant's husband that the farmiiif^ operations, as alse a l)anking busi- ness carried on at the same time, were hers. The negntiatinns for the eniploymcnt of llic plaintiff were con- ducted by the hnsh.and, though part- ly in the defendant's presence, and it v,;is the husband who was consulted by the plaiiititif in all matters of im- piTtance relating to the farm as well as to the Bank, though at times the defiiidant was present. The hus- l):in(l gave defendant the benefit of his advice and assistance, and also acted as book-keeper for her in the bank- ing' business, hut it did ucit appear tli.ii be had any fixed salary or what was the arrangement, if any, between him and defendant. //('/(/, that such participation by the husband would not, in the case of an (uisider contracting with his wife, absfdutely prevent the finding that the business was carried on liy the wife -•.]'.irately from her husband, and ;'i:ii (in the evidence such finding was he proper one in this case. If, '■ wt'ver. the defendant, on the same -;.:ie of facts, were claiming the pro- ;it'- or proceeds of tiie farming oper- itions as against her husband's cred- it' rs. it would be impossible to iiold it sufficiently proved that the busi- ness was bona fide intended to be that "t the wife alfuie. It depends on the circumstances of each particular case what is the degree or nature of the :i.iriicipation by the husband which iDcvents the finding of a separtite Inisiuess. Merchants' Bank v. Car- lex . (1892) 8 M. R. 2^S. and Goggin V. Kidd, (1895) 10 M. R. 448, dis- tinguished. Xieliol V. Goclier, XII, 177- 6'('c' also Actions. I\'. Conveyances .wd Contracts to CoNVEV. Sale of Land by Married Wo- man Prior to 1870. | — The plain- tiffs claimed title to the lanil in ([ues- lion under ;ui alleged s.ale from the defendant ,a married woman, made verbally in 1863 to their mother, l£,'r. v.. T. was married in 1861. and her huslKind. A.T., then went to live with her on the land. They continued to reside on and occupy it up to 1882, when E. T. died intestate, after which A. T. and the plaintifi's remtiined in ]Kissessi(in up lo the filing of the bill. The Judge found as a fact that some time iirior to 18(16 the defend- ant had .agreed to sell the land to \i. T.. and that T. T. and A. T, there- after continued to occupy it under the belief that it belonged to E. T., but— //(•/(/. that according to the Com- mon Law of England, in force down to 1870. wbicli was then the law of this country, such a sale by a mar- ried woman of land which was in no way separate estate, was wholly void and inc:ipal)Ie of being enforced against her. nltlvuigh a verbal sale by a person 51// juris might at that date have been good, acconliug to the decision in Sinclair v. MiiHigan, 5 ,M. R. 17. Tenif'lelon v. Siczcart. IX. 487. \'. W'iI'K's Coxti:mi't oi' Court. Debtors' Arrest Act, S. 7. j — A married woman may be eaxmined as a judgment debtor, and ptmishcd by arrest for refusal to obey the order for ber examination; for although. In section 7 of The Debtors' .\rrest Act, no married woman is lialde to arrest on mesne or final process, the order to attend and be examined may be enforced by an order for her commitment to prison, wdiich would f" / ii 259 INDEMNITY. 360 be a punislimeiu for contempt of Court and not in tlie nature of im- prisonment for debt. Siinford Man- ufacturing Co. V. McBzi.'an, X, 630. VI. NicxT Friend. Separate Property.] — Tlie mod- ern statutes bave not affected the rule that a married wonuin must sue by a tie.xt friend, wliere the suit re- lates to her separate property. Mc- Miclccii V. The Ontario Bank, V. 152. Order for Commission. J — A mar- vlvd wuman defendaiu aiipHed for a commission. Her husband, who was also a defendant, appeared and sup- ported the motion. Held, that a next friend was neces- sary for the purposes of the apphca- tion, lint the order was made as upor. the apphcation of botii liusband and wife. Ontario Bank v. Siiiith. VI, 600. Appointment Ot— Property Qual- ification — Incumbered I'ropcrty — Joint Ozenersliip.] — ■ Wliere a pro- posed next friend for a married wo- man was shown to be possessed of property worth more than double what was necessary, but it consisted of real estate heavily incumbered and personal property, both kinds of pro- perty being owned jointly with an- other person — Held, that the appointment as next friend should be refused on the ground of the nature of the property. Held, also, that a next friend should, at least, he shown to be pos- sessed of sucii property as would formerly, had he been a plaintiff re- sident abroad, have relieved him from the necessity of giving security for costs. Carscaden v. Pliilion, IX, 135- VII. Actions. Joinder of Actions.] — Counts in trespass to the g'oods of a husband cannot be joiner] with counts for un- lawful distress of the goods of the wife, and such counts may be dc- n-.urred to. I'auglian v. Building and Loan Association, VI, 289. Joinder of Husband and Wife in Tort.J — It may still be permissible to join a husband with his wife a.s plaintiff in an action of tort, fo»- dim- ;ige to her goods, notwithstanding The Married Woman's Property Act. J'ettit V. Kerr. V. 359. Separate Action Against Wife,] ■ — A married woman may lie sued in respect of her separate estate aiiarr from her husband. Teniplcton w Stet.'art. IX, 4S7. .hid see I'elie v. Rutherford, \'III, 168; Part lies, I. .S'c-, ILLEGALITY. Bills and Xotes, II, VIII; Co\- TK.\CT, II ; Sale 01^ Goods, V. INDEMNITY. Action Before Payment by Cov- enantee.] — A., the owner of iai:il subject to two mortgages, conveyed to B,, subject to the mortgages, ami B. covenanted " to pay ott and di-- charge the above recited mortgaiiv- and interest as the same shall lu'Cniiie due. and forever save harmless the said party of the second part frnin any loss, costs or expenses connected therewith." Held, tliat an action might in: brought upon this covenant and the amount due upon the mortgages re- covered before payment of any jian of them by the covenantee. Cnliin V. Rinn, V, 8. Action Before Payment by Cov- enantee — Parties — Implied In- demnity.] — In a conveyance of land. the grantee covenanted " to .'-ave harmless and indemnified " the grant- or from a mortgage previously c.x- 3(jl INDICTMENT AND INFORMATION. 302 eci'.icd by liim and from all claims and | demands in respect thereof. I Iltid, I. That after demand made I by the mortgagee for payment npm i the grantor, and before the grantnr had paid any money, he conld obtain specilic performance of the cnntract. 2. The mortgagee woidd not be a proper party to snch a bill. 3. The grantee must rely tipon the covenant and not upon any express or implied ;irn.cment to pay oft the mortgage. li.'ysiiian v. Ihirke, IV, 245. Time for Performance — I'ayiiinit in I situ! Course of Business.] — At tl.e dissolution of partnership between plaintiffs and defendant, the plain- t'fi's covenanted with the defendant that they w'onld pay the lial)iliiies of the lirm to a Bank, but no time was i'lM-d for payment. Defendant, by way of counter- c!;::m against the plaintiffs' dcclara- :l-u. claimed damages under this cov- er, am. and alleged that plaintiffs had failed to pay the debt, and that the Hank held defendant liable for it and iiail threatened to sue him. and that h<< credit was unfavorably affected liy the fact of the said liability stand- ni,u' against him. i'laintififs replied that they had paid ' iT alunit two-thirds of the origin.al !::i!iility. and that the balance would lie ])aid in the ordinary course of Ini^iness in a short time, and that paiintiffs had given ample security to il.c [^ank for such balance, and thtit :l;c Bank had not in any way called "!! lite defendant to pay or satisfy liie debt, and had not threatened or ira.cnded to sue or harass the defend- : ':! therefor. Ili'ld, that this replication was po-d. Culliu v. Riuu. 5 M. R. 8; J.i-itli V. rrcclaud. 24 U. C. R. i.p; Litlihridfic V. Mytt,iu. 2 B. & Ad. 77-', distinguished. Grundy v. Grun- (/;;, X. ,^27. .Vi-r I'>1I,I..S AM) XoTKS. IX, X. INDIANS. Indian Reserve — .l/();7,i,'(i,?r on ' 'i.:i"d in Reserve — Ejectment there- 1 ('-').] — .V mortgage made by an In- dian living on a reserve ni kind m the reserve is void, and judgment in ejectment recovered thereun is also void, and a sheritT is not bound to ex- ecute a writ issued ibercdn. /^/(7i7i- V. Kennedy, T. W., 144. INDICTMENT AND INFORMA- TION. Information — Second Injorina- tion.\ — An information was laid in proper form. L'pon this, a search v.arrant was issued. Afterwards an- other infoimation was laid which omitted a necessary allegation. This allegation was, however, in the sum- mons served upon the defendant. Held, that the second informaticm iiMght be supijlementcd by the first ; and in any case the information would be amended and imt (juashed. Reg. V. Coulter, \\. 309, Information _ Laid Before One Justice Instead of Tieo.] — S. was convicted under The Liciuor License .Act of -Manitoba, 1SS9, of selling iicjuor without a license. The infor- mation was laid before one justice of the peace, but the pro>ecuti.in was beard before two Justices. The de- fendant was convicted, and a sum for witness fees was included in the costs awarded against him. The defendant had given notice of api)eal, perfected security, and taken out a summons under section 126 of The Liquor License Act, by way of ai-peal from the conviction, but had aljandoned the summons before serv- ing it. Held. I. That the defendant had appealed within the meaning of sec- tion 84 of The Summary Convictions .Act, and that the right to certiorari v,as taken away, except as to objec- tions going to the jurisdiction of the Justices. 2. That the bringing of the Iirosecution was the la\in,g of the in- formation, and that it ought to have been laid before two Justices, and that the matter of the prosecution was not. tiierefore, properly 1)efore m ^Pfffi I ■ * m m 863 INFANTS. 3«4 the two Justices oil tlie hearing of the case, and they had no jurisdic- tion to iiear or determine it. I'ic^. v. SiarL'cy, \'ll, 43. In appeal — IhiJ (aflirining the decision of Taylor, C. J., Dubuc, J., disseniing). tliat tlie laying of the infornialion was the bringing of the prosecution, and that it ought to have lic.n laid before two Justices, and that the mai- tei' of the prosecution was not, there- fore, properly before the two Jus- tices on the hearing of the case, and tlicy had no jurisdiction to deter- mine it. Per Dubuc, J.— That the informa- tion was properly laid before one Justice only. /'(•;■ Bain, J. — This objection to tiie jurisdiction nuist be taken at the hearing before the Justices, otherwise it will be waived. Reg. v. Starlccv, \TI, 489. Duplicity — Tiy.'i) Offences in One Cliarge.] — The charge against the j)risoner, who was brought up on a liabeus corpus, was " for keeping a bawdy house fo" the resort of pros- titutes in the City of Winnipeg." " Keeping a bawdy house " is m it- self a substantive (/lence, so is " keeping a house for the resort of prostitutes." Held, nevertheless, that there was but one offence charged, and that the connnitment was good. lieg. v. Mc- Kcncie, II. 168. Duplicity — Charge of forgery and I 'tiering l'orgery.\ — An informa- tion charged the acciised both wiili fcn-gery of a promissory note and with uttering a forged note. Held, bad for duplicity. A'l' Mc- Cartney, VIII, 367, Duplicity — .lllegalions in .liter- native — Particularity of Place — Spirituous Liquors — Penalty for Sell- ing — Evidence as to Intoixcating Quality.] — A charge that the de- fendant kept liquor for the purpose of selling, or for the pur[)ose of trad- ing, or for the purpose of liartering. is only one offence. Upon such a charge it is sufficient to allege that the offence was connnitted at a cer- tain town without specifying the house or building. U])on conviction for such an offence, magistrates have l)ower to award iiuprisonment for four months in default of payment of the tine im|)osed. Evidence discussed as to whether the liquor was inio.xi- cating. J\'eg. v. Coulter. IV', 309. Indictment, Foreman's Initi- als. | _ Noiwithstanding the lan- guage of The Interpretation Act, R. S. C.. c. I. s. 7 (4), the word "shair" in .section 645 of The Criminal Code, which retpiires the foreman of the grand jury to put his initials opposite the names of the Crown witnesses on tlie l)ack of t!ie Bill of indictment, is not imperative in the sense that the foreman's omission to do so will null- ifv the proceedings. Reg. v. O'Coii- nell. (18S4) ir C. & F., 1=^5; Reg. v. Toiensend. (1896) 28 N. S. 468. fol- lowed. The crime of assault may be com- mitted though the party assaulted may have consented to fight. Reg. \. Buchanan, XII. 190. Indictment, Quashing — Iden- tity with Information.] — Tiie Court can entertain a motion to quash an indictment at any time. An indict- ment (within R. S. C. c. 174. s. 140. 1 need not follow the exact languauo of the information fnmded upon tho facts disclosed in the depositions. Reg. V. Hozces, V. 339. See Crimixai- L.vw. IX (b). See rxToxKWTixc LrnuoRS. , INFANTS. I. C()XVI•:^A^■cl'.s. 11. CusToiiy. III. .M.\IXTi:X.\NCE. IV. Actions. 3(i5 INFANTS. 366 I. Co.\VEVAN( K<. By Half-Breeds — Construction ,! Staiutc.] — 111 aiiswLT tn ;i f|Uos- iii i; Mihmittcd by tlie Registrar-Gen- eral for llic opinion of the Court as to the construction of C. S., c. 42, 5. ,v tlie foilo\vin<; report \v;is re- turned : Killani, J. (after discussing the i:iailer at some lengtii). — T shall liitveforc certify to the Registrar- Gmeral that, in my opinion, the third fxtion does not apply to a half-l)recd r'.ni-r Ijctwecn 18 and 21 years of as'.'. or empower liim to convey or n'hi'rwise dispose of any portion of tl); I. JOG. 000 acres of land that lie iii;;y he entitled to hy inlicritancc or nttrchasc. hut that it emp.iwers such lialf-hrecd child merely to convey or (lisprsc of such specific portion of the i.K'O.poo acres as may have liccn al- li'lted to him hy tlie Crovvn as his own share of those lands. AV C"(J/»/>- /'.'/,' V. 20,2. Ey Half-Breeds _ Sale Under Qi-dcr if Court — Convcyuncc Prior !o Ord'r — Xon-Obscrvatioii of Prc- crdrtit Conditions — Curative Stat- I'tr. I — In an i~suc under The Real PrnpertT Act. the plaintiffs claimed litlv under a sale of ;i lialf-hreed in- la'U's Ifiiids alleged to have been iv.nk' pursuant to an order of the C't-rt. rii^. order, purporting to he r aile in he matter of N. D.. an in- taiii. and dated Qth Novcmlicr. iSi^o, (lifiTtcd that the lands he sold to St. P. for $200. and that, upon paymr •■ into Court of the purchase money to til!' credit of the matter. A. D,. the ftitlter and next friend, of the infant, 1).' empowtrcd to mak'e and execute a pri^iier decl of convevnnci- to the pur- clinsor. A deed to St. P. was pro- (h'ced at t'ne trial, which recite!ly unautborizi d. 4. The most reslric'ed construction pos- sible must be placed upon these en- actments. O'nrii'u V. Cf'.c'f" >.'('//, 17 S. C. R. 420. and U'lwlcn v. Rvan. 20 S. C. R. 65.^ followed. The question of the necessary proof of an order of the Court for tlie sale of a half-lveed infant's lands, where the order had been lo.-.t. considered. Hardy v. Dcsjarlais. VIII. 550. By Half-Breeds— Co;, jfr;)^ 0; Uus- bnnd of Il!c,iritiniatL- Ir.fant — Void- able Conveyance] — The Statute of Manitoba. 46 & .,'7 YW.. c. 29. s. i. which was iiassed to remove doubts as to the tiropcr intcrtiretation of section ,1 of Tlii" II.-ilf-Breed Lands Act in the C, S. M.. did not apply to married illegitimate children, so ;is to ( I'.vi.'itc the iiecessitv nf procuring the ccmscnt of th..' hu^-baiid or wife of such child to a conveyance made dur- ing minority. Held, also, that a conveyance to the defendant made by an infant was not binding on her when she came of age, and was voidable ;it her option, and that she efTeclually avoided such conveyance by a conveyance of the l.iiids to the plaintiff, executed a few months after sIt^ came of age. Rob- inson V. Suliwrland. IX. 199. m ' 1 ' ' ■' 867 INFANTS. 3B8 m- ir. Cl'STODY. Habeas Corpus — .-ipt^li.dtloii by fatlirr far Ciishnly of Child — Mis- condiict — Onus of Jisldl'lisliiii^.l — It is />;•/»((/ fticic tlio right of a father to have tlie cuslody of his infant cliiUl. and the care of its cdiicali.m and hringing up. Tiie onus of proving hiiu unfit for such a charge rests upon the person M'ho seeks to take tlie child away, or to keep it away from hint. 'I'iie Court is always unwilling t') interfere with the common la\v riglus of the father. That the conduct of a hushand is such that his wife cannot live happily with him, is not a suflicient cause for interfering with his riglii to the cus- tody of the children. A'r foalds. ix; 23. Ill I.\I\T1'..\.\NCE. Action — Xo l-ornud I'romisc by Pat iter to I' ay — Kciincst — I in f lied /l<^ri'Ciiu'iit.\ — .\oiion for mainten- arice of infant. DefendaiU's wife having died. defendaiU recpiestcd plaintiff's wife to take charge of the clhld. wiiich she did for over three years, when the child was returned to her father. There was no formal ])romise by the defendant to pay for the keeping of the child. Held, that if there was no formal promise to pay by the defendant, there was no formal jiromise to keep the child without rcmutieration. and as there was a re(|uesl, an agreemeiU to pay should lie implied. I'rr Killam. J. — The luere fact of the maiiUenance by one person of the child of another does not imply a contract to pay for such luaintcnance. I\'r Bain, J. — .Apart from contract. a father is under no obligation that can be enforced in a ci\il action to support his children. Mniiro v. Ir- •t'iiic. TX, 121. Past Maintenance. ] — No allow- ai.ce f(U- past maintenance can be made to a widow out of the infant's share of the estate. lU-uiiii, VIII. 301. A',- .l/,n'» us IV. Action. Next Friend — County Court.] — Although an infant may perhaps sue in the County Court, and have -. transcript of the judgment tiled in th.' iUieen's Bench, without a guardiai !'!■ a next friend being aiipointed; yn lie camiot obtain an order to exainiu- iiie defendant as a judgment deliior in the Queen's Bench without a ;^i'ardian or next friend. Bcchcr v. AlcPonuld. Y, 2J,^. Next Friend — - Staying Proccrd- ini'.s — Delay in Making Apf^licaton.] — ^^W'here an order is luade f. i* the '.rial of an interpleader issue between an infant as i)laintitY. and an execu- tion creditor, and the plaintiff in the issue desires to proceed, a next friend ^hould be appointed, and proceedings will be stayed on application of ijic defendant in the issue umil snch ap- lioinimenf is made. ']"he infant claiiuant had un-ucc{>>- fully appealed to the Full Cnurt against the interpleader order, and im aiiplication for the ai)pnininx;nt of a iiext friend had been luade until after the service of the issue undtr the in- terpleader order. Held, that the present application was not too late, as it was lot nece.'^- sary that a next friend shoild be ap- pointed to act for the infint before the ])rcsent stage of the ii.terpleader proceedings. Campbell v Matliew- son, 5 P. R. Qi ; Grady v. Hunt, ,^ Ir. C. L. 525. followed. Gra'it v. Mc- Kay, X. 243. Liability as Partner. ]_The law. as to the circumstances ui.der which an infant may lie liable as a meinluT of a partiu-rshi]). discussel Jl'onds V. Woods, III, ,53. Decree Reserving- Day] — Held. a decree .against infaiUs slmuld unt leserve a day to show c.iuse after they come of age. Scottish Mani- INJUNCTIONS. 370 tolui Inx'i'stiiicHt and Real llstatc Co. V. lUjiiclnird, 1 1, 154, INFORMATION. Highways. j—Tlic Aiturnty- Gen- eral for the Province is tlie i)niper informant in a suit to restrain the obstruction of higlnvays. It is not rccessary that an information should disclose an interest in the relator. If tlic relator Ik- alsn iilaintiff, he must iirve an interest. Attorney-General V. Wright, ill, 107. See .Ittorney-Cieneral y. Rxiin, V. 81. See IxnuTMEXT .\xii Ixi'uk.matuix. INJUNCTIONS. 1. IxTI•:IiI.ocuTOK^•. 11. Agaixst — III. .AcTioN.s roR IxjrNCTiox. I\', VlOL.\TION ANIJ PUXISIIMEXT. I. IXTKUI.OCTTOKV. Practice — Cerlifieate of State of Cause — Notiee of Motion IVidcr tl'.an Leave Gh'en — ll'aircr of Ob- jection.] — The plaintiff obtained ex parte an interlocutory injunction with leave to move to continue it. He did not, on the ex parte applica- tion, file a certificate of the state of the cause. lie also, on an allegation that the defendant resided abroad, and S. was his agent in this Pro- vince, obtained an order for substi- tutional service on S. The notice of motion was not only to continue the ir.iiniction (for which leave had been granted), but also, that an in.iunc- ti'in lie issued in accordance with the prayer of the bill. The defendant served on plaintiff a demand for copies of the affidavits tiled on the motidii. Held. I. That it is not necessary to file ;i certificate of the state of the cause on obttiining an ex parte in- junction. 2. That the nniice of mo tion, asking something more than leave was given to ask, does not viti- ate it. .^^. That service of a demand for copies of the plaintiff's alfidavil was a waiver of any objection to the mode of service on deteiulan!. Me- Ihniald v. Cliarlehois. \'ll, ,^5. Evidence Requisite — .IfHdax'tt npun Information and Belief.] — .Al- though for the purposes of an inter- locutory injunction ihore is not re- cjuired to be the clear evidence neces- sary to support the case at the hear- ing, yet there i,:'isi be sonic evid- ence. An atVidavit alleging " 'fhat the facts stated in the bill of com- plaint herein tire true in substance and in fact and to the best of my knowledge ami belief," is wholly in- sut'ticieni to form the ground of an interlocutory injunction. Roieand v. Raii:eay C( a faci iiiauria! to one of tlic Kroimds ii|)on wliicli. in tlic liill. the plaintill'V n'Rlu was funndcd. l'|)iiii an aitplicalKJn U< coiitiiuu- tlu' iniiuiotidM — llrld. lliat liavin.tj in view the ajreal importance to tlie plaintiff nf main- laininf? the status quo, and tlie ah- si nee of damage to the dcfendan;, tlie ii.jnnelion nii^lu be continned. noi- V i'.hsiandin;4 tile niis-stalenieiit in rc- s\)cct of a |iortion "f the i)ropcrty in (jucstion upon an erpiitahle gronnd not affected i)y the fact inis-st.'! .-d ; but the plaintiff was ordered to pay the costs of ihe motion. Burbank v. U'cbh, 5 M. U. 264, considered). 1. aches as disentitlinji lo interim in- jniiclion rliscussed. Il'iiiiiit^r,^ >lr Hudson's lUiy h'aihs.'ay Co. v. .\fiiiin, \'J. 400. Plaintiff's Bight Doubtful. | — Upon motion for an interlocutory in- junction where the ri^lil is doubtful, the Court will consider 011 what side is the balance of convenience; to v'bich party is injury more likely to hi done by its interference or refusal to interfere; in what way the parties can best, after the final determination of their rights, be kept in, or restor- ed to their jiosition at the time of the motion. . Ittorucv-Gciwral v. Rvon. V. 81. Mandatory. I — .\ mandatory in- junction to restore buildiuiis to their former foundations refused upon mo- tion. Stcwari v. Turpiii, i. ,^2,v Second Application — Threaten- ed Trespass — Tear of Riol — Con- struction of Statutes — Raiheay Cross- iii,i:s:\ — The fact that the plaintiff will by force oiipose a thre;Uened trespass, and so possibly cause blood- shed, is no reason why the Court should ,c;rant an interlocutory a|)i)li- cation if he is not otlu rwise entiiled to it. The Act incorporatinp; The Northern Pacific and Manitoba Rail- way Co. does not, of itself, supersede the power given to the Railway Com- missioner by 51 Vic, c. 5, with refer- ence to ihe building of the extension if the Red River \'alley Railway to I'ortage la I'r.airie. An ('.r (^arte in- junction Inning been di.-.solveil on ilu ground that the qi.esiions involv- ed were of such difriculty tliat tliey shoidd be decided at the hearin,g only, the bill was amended ;ind a new c.r parte injiinctif)n granted. Upon nm- lion to continue it — //(•/(/, that the plaintiffs were en titled to have a full cimsideraiinn nf all tlie (|uestions involved; and a more deliberate argument bav"iv; srslved the difficultie-^. the injuncti 11 wa-' continued. Canadian I'aeilic lUiilway Co. v. Xorthrrn Taeific and \fanitolm Rai!:eay C'c . \', .'^oi. .S'('(' .\Tuikr,ian v. lUihin'^ton. \', 25,^ Appeal Ex Parte. |— A motion for iiii unction to restrain a sheriff's sale was refused by a single Judge after argument. I'pon motion ex parte 10 the Full Court, the plaintiff's coun- sel staling his intention to ai)peal, an injunction was granted, until the re- hearing of the order or the hearing of the cause, whichever should first conu- on. I.e:eis v. Wood, 11, 7,3. II. ACAINST — (a) .Ictions. ( h ) Trespass. (c) l'orei}^n do-poration. ((/) /')//'/(■(• Cmeer. (a) .Ictions. To Stay Foreign Action.] — The Court has power to stay an aciimi brou.ght in a foreign Court, win- ib.e i)arty bringing it is within i jr.risdiction. Hut no order will m;i(le unless a clear case of nppressi be made out. The plaintiff filed bill against the defendant as adniin- istratri.v of .S. to set aside a policy oi life insurance. -After the commcnco- ment of the suit, the defendants sued 373 INJUNCTIONS. 374 lilt plaiiililTs ill tlio Pi'Dviiico of Oit- t;irii> iipoii llii; pulicy. Tlii' iiisiircil li/iil ivsidi'd ill Winnipeg, and ilic pliiiiilitT and the \vitiu's.>.cs wire now lime. Tile poliey was ))ayal)le in ("iitarin, and ilie head Dflu-i' of the L'i'iit|)any was there. Thr plaintiffs wire willing to ^nlnnit lo >iich term^ as liie Conn should think proi^r. A n.niion for iniiiiR-tion to restrain the (Jiiiario action was refused with fcsls. The Xorlli .linciiraii Life As- siirtiiu\' Co. V. Sullicrlaiid. III. 1.^7. (/') 'I'rfsl^dss. Coutinviiiig' Trespass.] — A con- lir.ninu; trespass ainonntinn to per- il aiunt appropriation of the projjcrty of ;iiioiher i-. of itself, a stifi'ieiently ■erioiis injury to wan-ant interfeienee liy iniiinciioii. .Ittonicy-Ocncral v. h'yiiii, v. Si. Thrcitened Trespnss. | —The plaiiiiirf i;laiii;ed to he tenant of the ili'lVndaiU !'.. of certain l.-inds upon 1" liicli he sowed a crop of whi-at. l)e- t'liulant threatened to reap the crop, uliereiipoii th.e plahitiff tiled a hill for an injunction. Dnrinp; the suit the (K feiidant did harvest a portion of the crop, hut did not otherwise iiiter- t'lre with plaintiff's occnpaiion. TIk- plaiiiiirf's right w.as not viry clearly i-.-tal)li>!ied hy the eviahle there, tlie moneys assured 1 .ly.ihle there, and the Company wa- not carrying on husiiie-.s iiere. Tron- uituc Lotiii Co. V, Morirc, III, ji. ((/) I'lihlic OfTu-i-r. Aldermnn _ W'ron^fid .is-.uinif- h'>ii :t( Jurisdiction — Jnjunrli nt irih-rr Mamlitinu.i I'ropcr — livid- inrc — /.(»i-i(.s- .Standi of Plaintiff. \ — I'laintiff having heeu elected alder- man, and t.aken his se.'it. anil having heeii unsealed liy order of the County JiulRe for lack of property (nialitici- lioii. ol)!aiiied an 'M' I'artc injunciion to restrain the .Mayor from proceed- ing to a new election, and from refus- ing to permit the i)laiiitil'f to sit and M'le as a niemher of the council, up- on the ground that the Comity Judge had no jurisdiction. Upon a motiiiii 10 continue the injunction — //('/(/. I. That the plaintiff iioi he- ing. in fact. (|iialit"ied. no inimiction should he grani>-i!. _'. The Court in- terferes l)y injunction only to pre\ent or restrain injuries to civil property, and in defence of. or to enforce rights which arc canahle oi heing enforced ;it law or in ef|iiiiy. The Court has no jurisdiction to restrain persons from acting wiiliout authority. ,?. Al- though under section of The Queen's Ik'iich .Act of 1SS6, tlie Court may issue an injunction in cases where the plaintiff would have heen entitled to a niaiidannis at law, yet it nmst appear that the circumstances nonld li.'ive justified a niaiuhrinn.'s; .and the only ground of coinplru'nt he- ing that tiie defendant " threatens and intends and will unless restrain- ed," etc. Jh'ld. that the right to i]iaudaniH.i liad not heen shown. 4. In any case, the ahsencc of the jurisdiction of the County Judge wrnlil ha\e to he fully and clearly shown. Callozcay v. Pearson, VI. .M4- Z1B INSANITY. 876 iMm in. AlTIUNS FOK INJUN'CTION. Puppet Plaintiff — DisnILn^viicc I'l Sldli!ti-s. I — All acl \v:is iiasscd by tlic j'rovincial LcKislaiurc for llic const nicliijii of Uic Red River \'allcy Railway. Jii pursuance of this Act a cnniracl was I'litcrcMl iiun liclwecn Hit Majesty and two of llie defendants, and the contractors there- upon proceeded to build the road. Ibis Act was disallowed, as was also an Act cxtendinji; the operation of The Public Works Act of 18S5. The lilaintilT. being aware that the route eontein))lated would cross certain lands, purchased iheni with a view oi cbslrucling the buildiiit; of the road. It was not conlciuleii that this would disentitle him to an injiuiclion, but it was alleged that be was acting not for liimself but in reality for a rival railway, whose hautl lie was. To show this, the plaintil'f w;is exam- ined, and he refused to answer sev- eral proper and material (|uestions. He aiipeared to liave acted through the rival railway's olVici.ais, ;iiid to have reporletl progress to them : to litivc made soim agreement with that C(>nipany, giving to it ceri.ain privil- eges in res])ect of the land purcliased. l)Ut the nature of this agreement he refused to divulge; and in a letter he referred to " the party for wliom 1 have purchased." y/(7(/, I. That lifter the ilisal'.ow- ar.ce. the defendants were witliriiii mcrit-s or leg;il rights — The Public Works Act (without the disallowed amendment), not ,,'iving the right to expropriate lauds for tiic purpose of the railway. .;. That, neveriholess, the pl.aintiff was iint iiuit'.ed to an in- junction, Ik- being the re])resentali\ e' n.erely of the rival railway, and ii'it acting on his own behalf. ;>,. That to arrive at this conclusion it was pro- per to assume as against the plaintiff the answers he could have given, if he had answered fairly the rptesiious put to liim. The di^-allowance of the .''cts was signified by iirf)claniation in the (/(irr/.'i'. lint no reference was tlu'iein m.'ide to the certilicate of the d.ite of the recei])! of the .\cls. Sriiihlt' — Th.-i.t the certilicate need iioi be signified, but the dis;dlowai;ce I'l.ly. lin'wiiin^ v. Kyaii, IV, 486. PossesGion jvs Proof of Title.] — I'o-^se.^sion sullicient to enabit a 1 hiintiff to maintain an action of lres]);iss is tlie possession wliich is the test of the right to l)e treated a> a piaintiff in possession for the pur- p(.ses of an injunction suit or motiMn. .'iltiiniry-drncrci! v. h'yaii, V, Si. Costs — lujitnction Motion — D'ls- iiiissiiii; liill.\ — I'ending a motion I'or injunction, tiie defendant took un; a pr,'ecipe order to dismiss bis liill. //('/(/, that the defendant's costs of the injunction motion were iircjpcrly taxable under this order. Jenkins v. i\yau, V, 112. Costs. I — L'p^iii a motion id con- tii.ue an injunction \vhich w;is reliis- -d. no order was made as to costs. .\fle'rw,-irds the plaintitT's iiill was ,i; ■ n lissed wiUi costs. Held, that the costs of the motii 11 were ta.xable ;is costs in the cause. l-vontcnac Loan Co. v. .l/(>/'i(Vr. IV, 4,^<)- Sec ill.>-s great freedom in dealnig with tin estate. ivxiHiidilures wliicii have In en made on Ijchalf of a lunatic without authority m;iy he allowed hy !hr Court, hut not hy the Master. .'>tK'h expenditure will Ik- less readily .NiiK'tioned after the death of a luna- tii. Where a conmiitiee deposits r.ii.ney with a hanker, the mere fact III his suspension is suflicient ground for presumption of negligence: ilh ugh the presumption may he re- iuuted. The fact that the h.anker is a private hanker will not of itself render the cnnnnittee li,-d)!e as heing negligent. The fact that the lianker .-elected hy the Cimmiittec is the one f rmerly emplnyed hy the lunatic is :ni element in favnr nf the connnittee. Ir is the duty nf the comniiitee to piv int') Cdiu't moneys which will I'll, within a shiiri time, he rerpiired fur the i)urp(ises of the i-state. .\ C'lMuiittee is liahle Un interest upon n.i ney received hy him from its re- eeiiii uiuil payment. The Ce)urt litis |i\vef to tdlow compensation to ;i ci'tiuiiittee. hut the Master litis im st'cli piiwer unless the mtitter is spec iti'le referred to him. The wife of a iiiiitilic has autlmrity to pledge her luishand's credit for necessaries for !ier support. A'l- Xcrins. a lunatic. Criirinal Law. | — Ins.uiity. :i^ a iliieiice iti cfiminal cases, discussed. A'r.i;. V. Kiel. I [, .^_>t. .S'l'i' Ct^tMIN.Nt. l..\w. W INSURANCE. Fire - t'lynicnt Carpenter's - Condition Risk Re — I'roofs of Loss — Condition Precedent — Con- struction of Relati-i'c ll'ords.\ — i)e- cl;.r;ilion upon a pulicy <'f tiri' insur- tuice, which recited tlitit the i>l;iiiuil'f htxl paid the sum of $ioO ;ind also the tidditional sum of $2.25 for insur- ing iigainst loss hy fire, and especitdly any loss arising from cariKuters, etc.. heitig employed upon the premises. .\iiother count was upon an interim receipt which recited an .applictuinn l"nr insurtmce agtiinst luss hy tire ;ind especitdly any loss arising from car- penters, etc.. heing emplnyed upon the premise^. ;ind payment of the .Nod and tUs'i the addition.al sum of .*.;.J5, \vith a pnivisimi on the issuing (if the policy t'or cancellation of the receij)t. I'mth the pclicy and the re- ceii)t were alleged to he suhject to a Cdiujiiinii th;it the Company would not l)e answerahle for loss hy tire in, Of of ;itiy iiuildings under construc- tiiiti wherein carpenters were employ- ed, unless the special consent of the ( iititptiiiy in writing was tirst ohltiin- ed, ;iiid indorsed upon the policy. To these Ciitints the defendain pleaded ("th plea )that tifter ni;ds. the plaintiff h;id em- ployed in the huildings carpenters, etc.. without iiaving ohtained and having iiidiuved on the policy, the consent in wiitiiig of the defenclant. Held. t. Th.at the coiKhtion as to the empjoyiiieni of carpenters was not rejiugnant to the contract, and did not itself constitute a consent of the Comp;iny as stipulated for hy tlie condition. j. That the ple.as were li.id hecause they did not allege the employment of the carpenters :it the ;:ti'e of the occurrence of tlie lire. .\ lio]ie>- was suh.iect to the following ci iidition : " i'ersons sustainitig any lo hy the Company under this pol- icy and if the chiim shall not. for tlie space of tliree months after tile occurrence of the fire, b,' in all respects \erilied in manner aforesaid. tlie assured sliall forfeit every right to restitution or payment hy virtue of this jiolicy. and time shall be of the essence of the contract." Held. 1. That the delivery of the statement and account within the fourteen days, was a condition pre- cedent to the assured's right to re- cover. J. 'That the words in the con- dition " as far as the assured may ki.ow." related to " when and how tile fire originated," and no; to all the preceding rec]uircments of the conditiun. Murris.in v. 77/r City of Loinlon J-'irr Insiinnu-r Co., \'l, 22-,. Life — A'/,i,'/'/.s' oihl fiili'i\-st 0( .Myiii- bcrs of .Mutual Bcnctlt Society.] — The plaintii'fs were the executors of the will of ^L. a member of an unin- corporaled Society Icnown as ilie Or- der of Scottish Clans, wiio had held a 'Certificate of membership entitling the licnefici.'iry named therein to the sum of $2,000, payable at M.'.s death. By the rules of the Society no mem- ber could assign his " bequeathmeut certific.'ite." nor woulil any assign- ment lie recognized by the Society. The name of ^^.'s father, the defend- ant, had l)cen inserted in tlu' ceriifi- eate by his request. .\fter the date of the certificate, and iluring the life- time of M.. the bequeathmeut laws of the Society were amendeil. so as to provide that at the death of a mem- ber in good standing the amount of the bequeathnicnt should 1)e paid to the wife, affianced wife, or relative of. or person dependent upon, such member, as designated in his be- fiiuathment ceriilicate. By hi^ hist will ;uid testamem .\l. ap])ointed the plaintilts. as execuKjr.s .and trustees. and directed that his life insurance money should be paid to them for the purpose of carrying out the trusi> of the will; and about the same time lie indorsed a memorandum on the be- cir.eathiiKnt certificate revoking the former direction as to the payuuiit of the insurance due at his death, antl aulhonzing and directing mr-Ii payment to be made to the plaintiUs. Tlie officers of the Society refused tu recognize this revocation, and on the de.atli of M. they refused to i)ay the insurance money to the plaintiffs v.iihout the autliority of the Conn. The plaintiffs v.-ere not, nor was any f'i them, tlie wife, atfianced wife, or relative of. or person dependent on the deceased. Held, that in the case of a Socie'.y having objects and a constitution sim- ilar to those of the Societj- in (pies- tion. the member has no interest in tlie fund raisul or to be raised, hut nierely a power to appoint an object to receive the same, which power n-ust be cxercise'l in accordance with the regulations of the Society: and that the defendam. the benct'ici- ar.\ named in the certificate, was en- titled to the money, as tigaiust tlie e:;- ecutors of the deceaseil's esttue. In rr irilliiiin I'liillil^'s InsurctUiC, j;, '.'h. 1). 2,^5. followed. Lcadlcy v. McGrciior, XI. q. Life — Death I y J'reeciiii^ — Oh- 'iioiis or I 'iiiu'irssary Paiii^cr.] — The defendants entered into a contract with the plaintiffs to p;iy .$i.ooo with- in ninety d;iys after sufficient proof that the assured, one of their ineMi- bers, " shall have sustained bodily in- juries effected through external, vio- lent and accidental means, and tli.i: such injuries alone shtill have caused di;itli within ninety dtiys from the h.'tppening thereof;" and the policy eont.'iined these further provisoes: '■ That tlie insurtince shall not extend to dcatli or disaliility caused l)y an in- jury of which there shall be no ex- ternal and visible signs nor to any case except when some injury efl'ected as aforesaid is the proxini;ito $ 381 INTEREST. 882 — Oh- 1— The contract 300 wiih- m proof r iiK'iii- )dily iii- lal. vio- md that oauscil iini the ■ iHilicy i.ivisoo^ : t extend )v an in- no ex- nor t'i injury roxiniatc n;ul sole cause of the disal)iliiy rn- death ; and no claim shall he made ui.der this policy when death or dis- alilemein may have been cai'.sed in consequence of ex|)osure to any olj- vicns or unnecessary danger." The assured was frozen to death on the prairie near Fort Macleod. to wb.ich place he was returning from one of his trips in company with a driver. While still about eight miles out. the wagon broke down. The weather had turned sudden!},- very cold and stormy, and the as>ured be- ing too cold and numb to walk, and unable to ride, it was agreed that he pliould remain where he was while the driver rode to Mackod for as- sistance, but he died before the driv- er returned. The assured was suf- ficiently warmly clothed for the ucather as it was when he set out. but not for the storm wdiich he en- countered. //(•/(/, that he luet his death as the result of an injitry effected through external. violent and accidental iiicans within the meaning of the piilicy, atid that it cnuld nut be said that he bad exposed himself to any olivious ov unnecessary danger; and ti'.at the plaintiffs were entitled to re- c ver. Siiicloir v. Maritime Passenger .i.^siirancr Co.. ~ Jur. X. S. 367. dis- liiiguisbed. XoiHi-U'r.s-f Coiniinvcicil TiwrclliTs' .L'Tsocialicn v. London C.uiraulcc and .-Icridcnl Co., X. ^.j,/. INTEREST. RlCiHT TO Rf.COVEK. Rate. I. RlCIlT TO Rf.COVEK. On Foreign Judgment.] — Though interest cannot be recovered on a f' reign judgment as incident thereto, the jury may allow interest as dam- ages, but not more than six years' ar- rears. Bani: of Mo)itrcal v. Cornish. T. W., 272. On Debentures. ]—] n an action a.gainst a ■.lutnicipaliiy in its deben- tures^ //('/(/, that interest might be recov- ered iin the coupons. London Ir Canadian Loan Cr .-Igcnry Co., v. Morris. \'ll. uS. On Commission.] — Interest will net be allowed (jn a coniniissiun un- til after a deiuand in writing. Mc- i\i'n::ic v. Champion, W. 15S. Conditions Precedent.] — To be entitled to interest before actimi a plaintiff must show (ij an express cnntract fur iiUeresi. or (_>) that the iim is such thai the natttre of the cl; eonti-act can be irnpl'ed. or (,V) tiiat the del)t is i)ayable b\- \-irtue of a \'. ritien instrument, or (.\) that there I'.as a demand with notice tiiat inter- I s; would be claimed under ,^ & 4 '.\ ni. 4. c. 42. s. 2S. Xiclio! v. Gocli- ./•, XII, 177. II. R.vte. Compound or Simple — Construc- tiun.\ — Construct ifjn of mortgage as to interest, whether coiupouiul or sim])le. Canada Permanent v. Ilil- liard. Ill, 3_>. After Maturity—" Till the Whole of the I'rineif'iil Money is l'aid.'\ — .\ uiortgage of real e-t;ite proviiled for the payment of the |)rincipal money on ist July. 18SS. with ini,er- est at ten jjer cent, half-yearly. " on so luu . principal money as shall from til;.;; to time reiuain unjiaid till the whole of the principal money is ptiid." There was also a provis') for compound interest as follows: "That, in case default shall be made in pay- ment of any sum to bectinie due for interest cnmpound interest shall be payable, and the suiu in ar- rcar for iniere>t from time to time shall bear interest at the same rate as the principal money secured by these presents; ami, in case the in- terest and compound interest are not p.-iid in six moiuhs from the time of default, a rest shall be made and m I' < INTERPLEADER. i compound interest sliall be payable on ilie agf^regate atnount tli.n due, and .s(j on from time to time." IfcUl, tliat after t!ie ist July. 1888. tin mortgagees were only entitled to six ])er cent, simple interest. ^7. John V. Kyk'crt. 10 S.C.R. 27S; Peo- ple's Loan Co. v. Grant, 18 S. C. R. 262 \ and /'ottv// v. Peck, u O. R. 4arli)ii; V. Colla'on. 10 I'. R.. 110. consiilered. Protection will he given to the sherilT only when he has not abused his power, or caused substantial grievance and has not been guilty of rtiscoiiduct or neglect, the object of the statute being to protect him when it is unjust that he should be .-tied. . .'. liarns. Son vt Co. v. York. \'III, S9. By Sheriff— /)t-/((y /'/ A Implication — Defending;; Action not .Xeccssarily a Bar.] — (jiving relief to a sheriff by interpleader is a matter of judicial discretion and mere delay, even if imperfectly accounted for, will not he a bar to a sheriff obtaining an order, if the parties have not been jireju- diced by the delay, and there has been 110 misconduct or collusitm. Defending an action brought by the claimant against him will not necessanlv diseiiiitle a sheritT to re- lief. Remarks on the duty of the sheriff to c>ime promptly for an interpleader nilhout exercising any discretion. Holt V. frost. 3 H. & X. Sji : H'in- !er v. Barlliolonicic. 11 F,\. 704. f' 1- lowed. Macdonald v. drcat Xortli- U'cst Central Railzcay Co.. X, X3. By Third Party.] _ Wiur.- the garnishee h.as jiaid the attj'ched money into Court, a third p;;riy claiming it has no right, under sec- tion 261 or 20.() of The County Courts Act. R. S M., c, 33. on the trial of tin int'."-i)leader issue, wiili- otit giving so!i:c ])roper f^rinia facie evidence of his right to the money or debt, to apply to set aside the garn- ishing order, it !o raise the question whether 'he dibt wa.^ properly at- tachable under the .\ct. Marshall v. .May. Xir. 3«i. Real Estate.]— Defendant- against whom judgment had been nbtained claimed upon interpleader that the 387 INTERPLEADER. 888 property seized as grxxls was real es- tate and so not cxigiljle. Held, tliat for tlie purpose of in- terpleader the properly nuisl be as- siiiiietl to l)e chattels. Dixou v. Mc- Kay. XII, 514. Sec EXECI-'TIONS, III. Sec Re.\l Pkopkutv Act, I\'. II. Proceedincs and Relief. Bond — Form of.] — Ashdoicn v. A',;.s7;, HI, .^7. Examination.] — An order can- not be made for the examination of a stein v. The British Canadian Loan and Inrestnient Co.. VII, lit). See Macdo)iald v. Cununings, VIII, 406; Kirchhoifer v. Clement. XI, 460. Who She aid be Plaintiff— Goorf.f Seized in Possession of Mortgagee.] — In April, 1892, the plaintiff placed a writ of /?, fa. against the goods of di fendant in the sheriff's hands. The beriff seized certain goods as the p. oerty of defendant, but they were clai. led by the Commercial Bank. I'liey had been mortgaged to the L'ank in January, 1802, and were taken possession of by the Bank a few days 1)efore the seizure, and at that time were in the actual posses- sion of the Bank. An interpleader issue was directed, and the question was, which party should be made plaintiff in the issue? Held, that the execution creditor? sl'if)uld be made plaintiffs. Union Bank of Canada v. Tizzard. IX, 149, See McFhillif^s v, ll'olf. IV, 300. Barring Parties on Issue.] _ Where an interpleader applicaliun before the Referee fails to be dis- posed of upon a matter of practice, as where the sheriff by his delay or having taken indemnity from one of the parties, is not entitled to relief; where either the execution creditor or the claimant fails lo appear on Uk- return of the summons; where eiiher of them, though appearing, declines to take an issue; where the claimant, though appearing, fails to support his claim by any evidence which can be looked at; or where there is some such state of circumstances, the Re- feree may dispose of the whole ques- tion. But where the claimant does support his claim, and the question is, whether he has merits or not. then tlie Referee should order an issue or refer the matter to a Judge. Gait v. ^IcLcan, VI, 424. Barring Parties — Application — Style of Cause] — An application to bar must be made in the original cause or niacter and not in the inter- pleader issue, as in this case. Hardy V. Desjarlais. VIII, 401. Relief — Chattel Mortgages not Declared I'oid.] — Since the passint; of the Act 48 V'ic, c, 5,^, no chattel mortgage can, upon an interpleader issue, be declared void under C.S.M.. c. 37, s. 96. McMillan v. Barlleft. n. 374. INTERPLEADER. S80 Form of Order— /',;7>.'i'/- to Direct Sail- of Goods ill Default of Claim- ant Giving, Security — Discretion in Rtjercc] — Under an execiiti(Mi against the defendant, the sheriff seized certain gcxtds whicli were claimed by D. H. & Co. Thereupon, the Referee, on the api)lication of tlie sluritT, made an order that upon the claimants paying into Court $ioo, or pisnig security for that amount, the sliiriff sliould \vith(h%'i\v from pos- session, hut in defauh of making such payment, or the giving of such se- sc. iirity, that the goods should be S'i'l and the proceeds, after deduct- ing expenses, paid into Court io aliiilc further order. Held, that the Referee had juris- (iiciion to make tlie order, and tlial il'c discretion vested in him was pro- perly exercised. l>ank of Xova Scotia V. JIol>e. IX, 37. Form of Order — " The Goods or .Uiy I'art Thereof."] — It is imma- Knal whether an interpleader issue refers to " the goods seized." or "the gi'iiils seized or any part tliereof." Liulcr the former words the claim- ant may prove for a portion of the g(-nds seized. Ste(^hens v. Mc.lr- thnr. VI, III. Discharge of Order — Sheriff Giz'- in^ ufi Possession.] — An interplead- er order, besides providing for an is- sue required the execution creditor \(> iiWe security for costs by a certain (iay. otherwise he should be barred, j ami directed the sheriff to sell unless j 'In claimant gave security for the j ti">ds. After lapse of the prescribed | |.tiod tlie Referee made an order 1 ii.'arging the time. Upon appeal, a I Jii Ige discharged this order, holding j ;!-ai the creditor had become barred. | :v:.'] that there was no jurisdiction to I ix'iiKl the time. The Full Court, j 1 wever, restored the Referee's or- i lii ". After the order of the single Jinlge the shriff withdrew from pos- '^("•sion and the goods were dissi- pated. The creditor then, finding it useless to proceed with the issue, ii'oved to rescind the interpleader order. Held, that the order should not be rescinded. l)Ut that ilie creditcir's rem- edy was by action against tlie sheriff if he had done wrong. lIoiy.'e v. Martin. VI, 615. Stay of Interpleader Till Orig- inal Action Ended— Co;(;//.v Court.] — Where a garnishing order i-^ made in an action for a disputed claim be- fnre judgment, and the garnishee admitting his debt, pays the money ii:t() Court with notice that it is claimed by another party, and then api)lies for an interpleader issue to be tried between the plaintifT and such other party as claimant, it is ])i(il)er to stay the trial of the inter- |ileader issue until it be seen whether the plaintiff will recover judgment against the original defendant. The interjjleader issue to be tried l>eing one which involved the title to lands, the question was raised as to whether it would be proper to send the issue to the County Court for trial, altlunigli the amount garnished was under $.250. field, following Guardians of Hert- ford Union v. Kim f ton. 11 Tx. .295, that the issue might be sent to the County Court, as it was a remedy provided by special statute directing the trial in a County Court. Ilouiih V. /'('//.■ Hoii'ard, garnishee. X, 679. County Court — Appeal.] — Xo ai;|)ial lies from the County Court in interpleader matters. Long v. Mc- Dougatl. III. 685. Issue an Action— Trial on Tues- day.] — An interpleader issue is within the term action, and may lie entered for trial upon a Tuesday. Plaxtou V. Mnnkman, r >[. R. 371, considered. Poui;las v. Burnham. V, 261. Proof of Judgment on Inter- pleader.] — Macdonaltl v. Cuiiimings, VIII. 406; Kirchhotter v. Clement, Xr. 460; Ripstein v. British Cana- dian, VII. iig. III. Costs. Abandonment by Claimant.] — Held, that where a plaintif? exam- 391 INTEBFLEADEB. 392 in.cs a clainiam iipdii liis affidavit, and tliL' claiiiiaiit siil)scc|uciut\- ahandfjiis his claim and is barred, and ordered to pay tile costs of the sheriff and the plaintiff, the proper order is, that the sheriff's costs he taxed to him and nn .iiUocalttr served on ihe plain- tiff, that ihe pl.aintiff add them to his costs, and upon recei)it of the amoimt pay it to the sheriff. I'atcrsuii v. Kiinicdy, II, 63. Abandonment by Claimant. | — A |)erson served a notice upon a sher- iff claiming as his poods seized under writ against another. I'jion the re- turn of an interpleader summons the claimant ajjpeared, obtained two en- hirgcments, and doing nothing to si'.hst;imiaie his c!;um, was b;irred. //(•/(/, that the claimant shnuld ])ay the sheriff's costs. Coclinuw v. Mc- Faiiaiw. V, 120. S'cc .Iniiit V. Hudson's Bay Co., III. 5-29- Abandonment by Creditors. | — An e.\ecuti(.>n creditor, consenting to be barred after an interpleader order has been made, must pay the costs of a sale by the sheriff of the goods as well as the costs of the application for the interpleader order, possession money, etc. Mauitoha & Xortb- U'csfcni Loan Co. v. Riitlcy. Ill, J96. Abandoning on First Beturn of Summons. I — 0. obtained ;i judg- ment tigainst a joint stock Company and iilaced a fi. fa. in the hands of the sheriff of the Eastern Judicial District. The sheriff seized certain goods, which were claimed by the Bank of British North America. The sheriff then obtained an interpleader smmi'.ons. While the smnmons was pending, and after I^). had obtained an enlargement, an order was made winding up the Company and ap- pointing a liquidator. On the return of the summons, B. asked that the liquidator be substituted in his stead. lUid, that B. must cither take an issue, or be barred and pay the costs of the claimant and of the sheriff. B. also placed a fi. fa. in the hands of the sheriff of the Central Judicial District, who also seized certain goods, which were claimed by A. The sheriff noiitied 13. 's solicitors, who rei)lied, suggesting interpleader as a means of ])rotecting himself. (Jn the first return of the inieriileader summons, B. abandoned. Held, that B. was not liable lur costs. Sirpliciis V. Ro.i^crs, 6 M. R. -'98; and Scarlc v. .Matlhciv's. W. N., iSS,^ 176, distinguished. Blahc v. 7'lic Manitoba .^lillint;, etc., Co., VllI, 427. Garnishee's Costs — Deduction from His Liahility.] — After declara- tion the defendants obtained a suni- iiK.ns. under 4S \'ic., c. 17, s. 54, call- ing ujion \arious claimants to the fund sued for, to maintain or relin- quish their claims. All the claini- anis abandoned except the Imperial Rank, and an order was pronounced directing the defendants to pay the funds into Court, after deducting their costs; that there should be no Costs as to those who abandmud their claims; and that an issue should be tried beuveen the i)laintiff and the i'u'ink. Upon settling the terius of this order the Bank also abondoncd, and the order, instead of jiroviding for an issue, directed the Bank to |iay the plaintiff's costs of the apjili- cation, and the defendant's costs de- ducted out of the fund. The claim of the Bank was under two garnishee attaching orders, one issued in a suit .'•gainst n., K. & A., and the other in a suit against T. K. &• M. K. The lluflson's Bay Co. in both suits being the garnishees. The plaintiffs in the |iresent suit were T. K. & A. //('/(/, that the statute was applic- able to the Bank's claim and that an issue might therefore have been directed. The defendants were en- titled to deduct their costs, both of the suit and also of the application, so far as related to the Bank, but not of calling in the other abandoning claimants. Where a claimant does not appear, or appears and abandons, no costs are awarded. Armit v. The Hudson's Bay Co., Ill, 529. Sheriff's Costs.] — An interplead- 392 393 INTEKPLEADER. 894 m oviilinii ank t'l K' appli- )StS (Ic- claiin rnislu'c a suit other in The t> licinti Ts in the apphc- that an ,-e heen were en- hoth of pliealiiin. Init H' ■. UKhmiim' ant doi'^ handonN, it V. Th,' terplead- c" order may direct payment of the .Miiifif's costs. AshdoiK'ii v. .Wish. Hi. 27. Defending Actions — Instead of Ih'rrpli-aciiiifi.] — The defendant be- 11!,' indebted to Cr., M.. a creditor of Cr.. obtained a garnisliing urder .-i.c^.iinst S. Instead of iiaying the money into Court, S .retained it. ami v.is afterwards sued for tlie same .•■.iiKiunt liy the plaintiff, who claimed. a- assignee of Cr. The defendam, after issue joined, obtained an order idiuiring M. and the plaintiff t tiiplead. Th.e plaintiff ■••"•■■ iii'i'ii the issue (1 in- succeeded ■ 11 iiiu issue. Irlil. I. The defendaTit should ilir who! Divided Success.] - ;i!; iiUerpleader issue, I'.irly succeeds as to goivds, there should be e cosi.', of the action down 1. 1 the intcri)leader issue. 2. M. should pay to the plaintiff the costs nf the issue. ,^. No costs allowed to any i)arly connected with jiaying in or paying out the money. Cloiii^hcr V. Scooncs, III, 238. Refusing Costs to Successful Party — Slicriff's Costs — I'liyiiu-iit by Successful I'arty.] — Although the ci:;nnant upon the trial of an inter- p'tader issue succeeds, yet the Court may. in its discretion, refuse to give Inin costs against the execution cred- itor. The Court c;umi>t, Irnvcver. in M.ch a case, order the claimant to pay the slieriff his costs of taking ]iossession of the goods claimed, or liis possession money prior to the il.ne of the interiileader order. The Mtisscy Mauufacturiii;^ C(>. v. Gaud- ry. 1\'. 22(). Distinct Issues by Various Creditors. I — Disposition oi costs in interpleader proceedings where dis- tinct issues taken by se\eral execu- i-'H creditors, the claimant being the >anie in all. Hro-ii'ii v. I'orta.^c la I'rairic Mauufactnriui: Ca.. HI, J43. - //.■/(/. I. Ill where each part of the a division of cists, and the ratio of that division is nr the di.scretion of the Jiulge. 2. The Court has power to review the heiis v. Rnt^ers — fix parte. Liz'ingstoue. \'I. 298. IV. SixuiMTV roK Costs. Prior to Issue.]— Pending an in- terpleader sunmions. an order was made for the examination of the claimaiu upon an aftidavil filed by her. Thereupon the cLiimatn api)lied for and obtained an onler staying proceedings until security for costs was given by the claimant, a foreign execution creditor. Ifeld. that no order for security could be made until an issue was di- rected. Biiihanan v. Campbell. \'I. 30.?. Extension of Time After Party Barred. I — An iii;rrple;idcr order di- rected that the plaintiffs should gi\e security for costs to the satisfaction of the Prothonotary on or before the roth April, and that in default they should be barred from all claim to the goods. (On the day named the plaintiffs paid $200 into Court, but 890 INTOXICATING LIQUORS. (lid luit (ihlaiii, iipi)n notice to tliu claimant, an expression of tho Pro- tlmnotary's satisfaction with such se- curity. //(•/(/, 1. That the Referee had. after tile expiration of the day named, inr- isdiction to extend the time. _>. The wiilulraual from possession h\- the sheriff after the day named consti- tiUes uo har to an appeal hy the plaintiffs fr;iper» imblished in the I'rovince, one being published in the French latiguage, the name of the ai)plicant and the jilace where he intended to sell in- toxicating liquor; and that a protest in writing against the granting of ;iny license, signed by five or more out of the twenty voters and house- holders nearest to the place proposed to be licensed, should prevent the is- sue of any license. The License Commissioners published the applica- tion of O'C. & \V. in one weekly French newsjiaper on 30th Octnher .-md 6th November, and in the weekly edition of one English newspaiier on 1st and Stli November. They order- ed the issue of a license to O'C. & W. on loth November, and on the iith November a protest, signed by live of the twenty voters and household- ers nearest to the place proposed to be licensed, was lodged with the Commissioners. Held, that the Commissioners had no power to issue the license until after the lapse of two weeks from the first publication of the application; that the protest was lodged in time and deprived the Commissioners ;ib- sclutely of any power to grant a li- cense, and that the license granted was therefore void. Held, also, that this Court had in- herent jurisdiction to annul the h- ccnse. as well as power under section .^2 of the Act. which gave jurisdiction to any Judge sitting as a stipendiary nagistrate in all prosecutions for of- fences against the Act. Re O'Con- nor and Ward. T. W.. 284. Protest — Power of Commission- ers — Jurisdiction of Court.] — HcLl. M 3b7 INTOXICATING LIQUORS. 3t»8 TION. for Two >n of — Jitnsdic- :cnsc.\— an.), on- ntoxicat- L'xcepi. as 111)1111 an I license, should, for twii wspapt'i'!) jiic bcmg language, and iln; 1 sell in- a i)rulo--t ;inlin^( "f or nmrc tul lion>t- propii>rd ;nt the is- e License le applica- le weekly :i Ocliilier :he weekly ^spaper on lev on'.er- b"c. & w. the mil d by tue iioiiscliiikl- oposcd 10 wiih the loners had |en-e until troni the [iplicatiiin; id in time lioncrs ab- :rant a li- |e granted Irt had in- lul the li- fer section lirisdictii'n |tipendi;iv_y Ins for of- t^" O'Co'i- Immisston- \t.]-Hcll. I, That the prantin;; of a license by the License C'oniniissioners to sell in- toxicating lif|uors is not an Act of the Crown which cannot be reviewed by the Court. 2, That, when a pro- test, signed by five of the twenty vot- iT.s and Jiousehoklers nearest the jjlace prujiosed to be licensed, is hjdged with the Conimissioners, they liavi' !''■ discretion as to proceeding, but are .'d)solutely debarred from issuing a license. 3. That the Court nf (Jreen's Bench has inherent in it plenary jurisdiction to annul a 11- i-eii'-e. apart from the statutory juris- iliciion of the Judges under the Act ri.~)iecting Intoxicating Litpiors. An application for a license was re- ci'inniended by eighteen persons, pur- porting to be eighteen of the twenty VI lers and liousehcddcrs nearest the place proposed to be licensed. W. -i!.;nid the reconimendaticni, but after riTiiisidering his act. refused to ac- ki;\\ ledge, and in fact repudiatetl. \',\> signature before a Justice, Me, witli six others, signed a protest ag.iinst tlie issue of the license. Roth die recommendation and protest were nttested by a Justice, The Commis- ?ioners took some evidence as to W.'s -iunature, and as to the qualifications ' f I he signers of the protest, and in their discretion held that W. h;ul signed the recommendation freely and voluntarily, and that the protest V l'^ not signed by five of the twenty nearest voters and householders, .\n- otlier signature to the recommenda- ti'ii was shown to be invalid. The reiii.iining sixteen signatures were ii"t sixteen out of the twenty nearest vr.iers. etc.. as required by the .*\ct. Tile Commissioners issued the li- cence. II rid, that they had no power to exi'rcise any discretion as to the is- M!( of the license .but were absolutely 'Kliirrcd therefrom by the protest, .and therefore that the license was void. Heinarks as to tlie duties of the Li- cence Commissioners, Re O'Connor ci'- ' ChadK'iclc. T. W.. 29,1. Keeping Liquor Without a Li- cense — Form of Iiiforntation.] — Mauistrates have jurisdiction under '1 he .Manitob.i Lifpior License .Vet, iKection 73, of keeping li(|Uor for sale without ;i license, I he information upon such a charge dul not slate that the licpior uas intoxicating licpior. Ili'hl. that such an alleg.ation was i;i't necessary, /v'c.i,'. v. Cmilti'r, IV, Reviewing Actions of License Commissioners. I —The action of the License Ciinimis>ioiiers in cancelling a license cannot be reviewed, as no appeal is provided against any de- cision of theirs. A'l'i,'. v. Cro'tlicrs, XI, 567. Powers of License Commission- ers — License \'car — Petition for License.] — The plaintiff claimed an injunction to restrain the defendants. License Commissioners, from acting on a petition under the pmviso in section ,Vt of The Liquor License •Act, R, SM., c. 00. to cancel his li- cense. Tills proviso reads as fol- lows: " Pr(i\ided. however, that once ill every year, after the first year of license, a petition by eight out of the twenty nearest householders against any license can be presented, and will have the effect of cancelling such li- cense," Held, that the word " year " in the Act means the license year ending on ,31st .May, anl not the calendar year; also that by necessary implication the License Commissioners are the per- sons to whom such a petition should be presented, and would have the right, on receipt of same, to hold a ir.eeting after notice to the licensee for the jHirpose of considering wdieth- er the document presented was really a petition of eight out of the twenty nearest householders, and on being satisfied of this to declare that the li- cense should be cancelled, Crntliers V. Monteith. XI, ,37,^ Local 0-ption— Ou ash in i: By-Laze — Xotice of Final Readi)i!^ — If our of Day — Calculation of Time.] — A notice published under R.S.M.. c. 90. s. 6,?, of a local option by-law stated that the vote of the electors would be taken on Tuesday, loth May. 1892, •II 39U JUDGMENTS. 400 ami lli.'ii the fiirtlK-r cnnsideralinii of tlic by-law after taking tlic vdIc and the final ri'.'iding would lie given by the Cmuu-il in the Village of Trc- hernc on the 17th May. /Vl). i8ij.>. //(■/(/, that the notice was iiiMiifi- cient, as to the further consideration and final reading of the by-law, i^e- caiise the honr of the da./ was not ilesignated. Tlic notice was published on the 6th, 1.3th, 20th, 23rd, 27 and .30 days of April. Held, that the notice was not pub- lished at least one month before the vote was taken. What is re{|uired by the staliUe is at least one publica- tion in each week of the month be- ftire the vote is taken, and for the purpose of reckoning weeks, it is necessary to begin with the day of the first publication, and not with the first day of an ordinary week. Hall V. The Rural Miiiiicil^dlitv of South Norfolk. \'III, 430. TI. ClUMIXAL PKOSF.CfTIOXS. Druggist Selling Liquor — /)(■- fence that License,! — liriileiice.] — W'hen ;i person charged, under sec- t'um 147 of The Li(|uor License Act. R..S.M.. c. 00, with having sold li(|uoi- without a license seeks to bring him- self within the ijrotcction of section 149 of the Act. his stating nn oath that he is a duly registerecl druggist is not sufficient evidence that he is a druggist didy registered under The I'harm.-iceutical Aci, R.S..\1.. c. 116, to warrant the quashing of a convic- tion. Per Bain, J. — Wliether defendant was a registered druggist or not. it was quite ojien for the complainant to charge him under the general pro- visions of section 147, and. if section I4() would have afforded him any de- fence to the charge, the onus lay on him to bring himself by proper evid- ence within its provisions. I'aley on Con-eictions, pp. 130, 244. Catliearl V. Hardy. ( 1S14) 2 M. o: S. ^.u. A'l'i'. V. Ilerrell. XII, ig8, 522. Conviction — Sellinp IJiiuor i),ir- iii^ Prohibited Hours — Proof of Li- cense — .lineudinent of Coni'ietion.] — In order to convict of the ot'feiicc of selling intoxicating li(pinrs duriiij; |)roiiibiled hours undi'r section 14,1 uf The Liquor iJcense .\ct, R, S. M. c, yo, it is incumbent on the prosecution to prove that the defendant held a li- cti.se f(jr the prennses where the li- qi.or w;is sold, or that the premises were licensed premises. Pet;, v. Williams. VllI, 342. Evidence of Character of Li- quor. | — Upon a charge of selling li(|uor without a license, there iniisi be evidence that the lif|Uor was intnx- icating. Where a charge i^ made against a licensee for some breach of the statute, it nuist be shown th;it he was a licensee, and the iiroduction of the license after sentence for the pur- pose of being indorsed as retiuired is not sufficient. A'c^'. v. . Idanis & Jaeksoii, V, 13.3. Keeping Liquor Witliouk a Li- cense — /•'.';■;;/ of Information.] — Magistrates have jurisdiction under The Manitoba Li(|uor License .Act, ii^86. upon a charge, under section 73, of keeping li(|uor for sale without a license. The information ujion sui'h a charge did not state that the lii|U"r was into.xicating licpior. IfeUI. that such an allegation wa- not necessary. Peg. v. Coulter. 1\', .309. See also Lxdk'tmf.xt. See also Mu.\rcii'.\i. Cnui'nRATinx, I. JUDGMENTS I. X.\TfRi-; .\.\n E.ssENTi.\i.s. II. Bv Di:i-AtLT. III. Ox Motion 01^ Srit.MAin' I'ko- CEKDIXG. IV. A.MEXDMEXT AXil CoRRErTIn.V. V. Entrv and Doi keting. 1 ! r . 401 JUDGMENTS. 40'J kl'dRATIoN", \T. Registration. \ II. CoNSTKflTION ANMi OpF.R.XTION. \l[r. F,NliPl« KMr.NT or DiiMKSTIC Jrii(,.Mi:Ms. IX. Actions on Foueigx Judg- MKNTS. X. SKTTiNd Aside. XI. ExAMINATKi.V OF JUIIC.MF.NT ]Ji:iiiuu. XII. Satisfaction anh Payment, I. Xattki-: and Essentials. A Judgment is a Security for Money.J — llou-laiid v. C'llil. IX. Form of Judgment — /;; Action /. /■ Account.] — I'ivian v. Scoblc, I, Must Order Payment — /;.ii-ti(- In'n Only Directed. \ — .\ decree in a iK'.rtsagc suit contained no order for |i,iynient of rnnney. but directed writs I'' ticri facids to issue for the amount line. //('/(/, i.liat the inortp;;i(.{ee was not ;i incljfuient i-reditor. and tlierefore iml entitled to , ny priority in tlie ad- ministration of tl..' assets of the niort- p.itior. J-'rontcnai ' oan Co. v. Mer- rier. IV. 442. Must Order Payment. | — in a lull !'i realize on a decree of the Court of ( Hieen's Bench on its cc(uity side, or- dering money to be paid, and relying Kpon the registration of a certiticate 111 such ileeree as creating ,1 charge ;,iul incumbrance on lands of the de- ft ndant under section 6 of The Jndg- nunts .Act. R. .S. M.. c. So. it is cssen- iial to allege precisely thai the decree iiferred to was one ordering monev. c'ists. charges or ex|)enses to be paid t" some person, or into Cmirt or dtnerwisc; and where the bill alleged rir.Iy that in certain proceedings in the Court against the debtor, a decree was made, that in pursuance of the decree the Master made a report, .nid the i)laintit'f recnvercd a jndgmeiii against the debtor for $ ; — , and he was ordered, not stating by what, to pay to tlie plaintiff-, forthwith the said sum of iiinney ; and that in pnr-uance of such decree, re- )>ort .'ind proceedings thereunder, the plaintiffs caused ;i certit'icate of the s;iid decree to be issued .and register- ed in the Registry Office fnr the pro- per Land Titles District, a deinnrrev for w;iiU of erpiity was .allnwul with costs. Credit I'oneier I'reneli Can- adien Co. v, Seltult.':. .X, 417. II. HV DKFAfl.T. Non-Appearnnce at Trial. | — Where the plaiiuiff does not a|)pear at the trial, a non-suit may properly be lUtcred. The defendam is not, in such case, entitled to a verdict. Colder V. Paney, IV. 25. Default of Plea — JVIien Particu- lars Seeessary — Interest Subsequent to Writ — Set Aside if for too Much.] — .\ foreign judgment cinstitnti'S a simjile coiUract debt. Jndgmeni by flefault. therefore, m;iy be signed in an action upon a foreign judgment ; ;ind also for the costs of a mntion made in a foreign action. Fin.il judgment in default of a i)le,i to a de- claration upon the coiumon courts cannot be signed unless particulars have been served. Judgment in de- fardt of a plea cannot include interest Fi:l)sequent to the issue of the writ, r.llhough judgmeiu in default of ap- pearance may. Judgment in default of a plea having been signed for .$49.^ too much, it was set aside, an! not merely reduced by that amount, a meritorious defence being sworn to. ]f artel V. Ihihord. Til. 59^. Default of Trustee — nenellciory Successful.] — An ;iclion against a trustee and the beneficiary was unde- fended by the trustee. The case failed as against the lieneficiary. Ifcid, that no decree could be made .acrainst the lieneficiarv. Gillies v. w 'ur 403 JUDGMENTS. 404 Cinnmcrcial Bank of Manitoba, X. I 460. j Sec Skttixg Aside (Infra). III. On Motion on Sii>rN[AUY Pko- CEEDING. Application to Sign.]_An appli- catioi; to sipn judgnienl a;j;ainst one dcfciulaiH >vill not be granted in the absence ot evidence as to tlie position of the action with reference to the others. Stczi'art v. Richard, III, 610. Proof of Debt — Evidence.]— Thv siatute. section 34, of The Queen's Bench Act, 1885. requires tiiat the ap- plication for final judgment shall be siii'portcd by an afiidavit made by the ])laintiff " himself, or Ijy any other person who can swear positively to the debt or cause of action." Held, that wlicn the affidavit is not made by the plaintiff himself, suffici- ent must appear on the affidavit to satisfy the Judge that the deponent is a person wlio can swear positively t<> the debt or cause of action, but those precise words need not be used. The London & Canadian Loan & Agency Co. V. The Rural ^[u)l:cipalit\^ of Morris. VII, 128. Proof of Debt.] —On an applica- tion to sign final judgment tuider section 34 of The Queen's Bench .Vet. 1885, if the affidavit be not made by the plaintiff, it must show such facts as will satisfy the Judge that the de- ponent is a iierson wlio can properly nifke the affidavit, bitt it need not state in express terms that he " can swear positively to the debt or cause of action." If the affidavit be made by the plaintiff himself, all that he need swear to ir proof of his claim, is that " in his belief tliere is no defence to the action." London & Canadian Loan & Agency Co. v. Morris, 7 M. R. 128, followed. The correspond- ing English order distinguished. Cen- tral Electric Co. v. Simpson, VIII, 94 Foreign Judgment. | — A foreign judgment is a liquidated demand within the meaning of section 34 of The Queen's Bench Act, 188, Uhitlax. McCuaig, VII ,454. Set-Off. I — Anything which could have been pleaded by a defendant un- der the old st;ilutes of set ot'f can now be brought forward in answer to an application for leave to sign judgment under the statute, and will prevent an (jrder being made allow- ing judgment to be signed. Manoquc V. Mason, III. 603, Special Indorsement— .ir/Zo;; jar Interest.] — The following indorse- ment docs not show " fully the nature and amount of the claim sued for ":— To interest upon loan from plaintiffs to defendants du'; to 1st December. 1883 $1,088.00 To interest on $1,008, from 1st December, 1883, to 1st April, 1884 ,^fi.26 $1,124.26 Ihindec v. Siitlierland. I, 308, Special Indorsement — Action on Dcl'CHtures.] — The special indi>r>o- mcnt set out so many debemmes, b(.;;ring certain numbers and of cer- tain date, issued under a certain by- law, so nnich being claimed in respt'ct of them. Interest was claimed upon these debertures, and in each case the numbers of them were given. //('/(/, a sufficient indorsement. I r alter v. flicks. 3 Q.B.D. 8, follow- ed. Stitart V. Richard, 3 M. R. 610, distinguished. London & Canadian Loan & .Igcncv Co. v, Morris, \'1I, 128. Special Indorsement — Action on Ci^^'cnant.] — .\ writ was indorsed " to recover the -ium of $3,000 on :i covenant contained in a deed for prin- cijial and $270 for interest thercmi; also for interest on both amoimts :V TO per cent, per annum from the isi March last until judgment." Ifcld. not a sufficient special in- dorsement. Sfczeart v. Richard. ITl, 6 10. 405 JUDGMENTS. 406 Special Indorsement — Action on Co'iCiiiiiit.\ — Jn iiidnrsing a claim on a covenant in a mortgage for the payment of principal and interest, it is necessary -to allege clearly and dis- tinctly that the claim is made upon a covenant to pay the money secured by the mortgage, or leave will not he given to sign final judgment in the action, under section 26 of The Ad- nrnistration of Justice Act. Where the claim is only stated to he one for " niiiney due upon covenants contain- ed in a mortgage," it will not he as- sunie(I that these are covenants to pay a licpiidated and ascertained amount, and it nuist clearly appear that the claim is not in any way in the nature of damages or such lea^', ■. will not he gi\en. SatclriCcll v. Clarice. 8 T. L. K. y)2. not followed. Dictum of the ^la-tcr in Miiiiro v. Pikr, 15 P. R. 164. dissented from. Manitoba. Etc.. U'an Co. v. Mcl'licrson. IX, 210. Special Indorsement — Action on Cheque.} — • In an action on a dis- honored cher|ue, final judgment will not he ordered unless tiie indorse- nuiit on the writ contains either an alligation that notice of dishonor was given to the drawer, or a statement of the facts excusing the giving of si'.ch notice. W'yld v. Lii'ingstoiic. IX, 109. Special Indorsement — .Ictioii on Cox'Ciiant.] — In a special indorse- ment of a writ of sununons under The Conunon Law Procedure Act, li>r the ])iirpose of an application for leave to sign final judgment after ap- pcirance entered, it is unnecessary to allege performance of conditions prc- ceilent, althoug'.^ sucli seems to he re- (jnired under The Judicature Acts in Knglaud. U'yld v. Li'i'ini^stonc. 9 M, R. lOQ, overruled in that respect. It is also unnecessary to show hy tiiL' indorsement that a claim for in- terest arises under a contract express or imiilied, and it will he left ,0 the defendant to show, if he can, that s'.ii h claim does not so arise. The special indorsement on the writ in tills case showed a claim for nn anuHUU due under a covenant con- tained in a mortgage made hy the de- fendant to the plaintiffs, dated 22nd Jidy. i8q2, uherehy the defendant covenanted to pay to the plaintiffs ;?,?,! 50.00, with interest at S per cent, per atmuiu, and went on to give the dates when the i)rincipal and interest should he payahle, and contained the following paragraphs : — '■ To interest on $3,150 at 8 per cent, per annum, from 22nd July, 1892. to 3rd Octoher. 1893, due under covenant in said mortgage — the cov- enant is to pay interest yearly, $249.30. ■■ To amount paid hy the plaintiff's to insure the huildings on said land in accordance with a covenant con- tained in the said mortgage, which insurance money the defendant hy the said mortg;ige covenanted to repay to the plaintiffs with interest thereon at 8 i)er cent, per amnim until paid, .$45.00. "And the iilaintitts claim interest on $3,444.30, the amount due as afore- said froiu 3rd Octoher, 1893, until judgment, at 8 per cent, per annum." Held, that, taking the indorsement as a whole, it sufficieiuly appeared that the interest was claimed under the covenant for payment of interest, and that the indorsement in that re- spect was sufficietu. Held, also that under the rule laid down in London c'-r Canadian Loan & .Igency Co. v. Morris. 7 M. R, 128. the ilescription of the claim for in- surance premiums was sufficient. h'odicay V. Liica.'i. 24 L. J. Ex. 155, followed. Canada Sett'e-.:' Loan Co. V. Pullerton. IX, ^27. Leave to Defend — Payment into Court.] — On an ajiplication for leave to sign final judgment, the Referee made an order giving defendant leave to defend on condition th;it he should pay into Court $(U3.8o within a week. and that in default of such payment the |)lainiiff shoidd have leave to sign fii'.al judgment for the full aiuount of his claim. The defendant had heen examined on his afiidavit, and showed no defence as to that sum, and no clear defence at all to any portion of the plaintiff's claim. He desired, however, to defend for the whole, and had tiled an affidavit that he had a 407 JUDGMENTS. good defence to the acMon on the merits. Held, that the Referee had iuris- dictiiin to make the leave to defend crmditional uijon payni^.-nt into Court of tlie j)art of the plaintiffs claim practically admitted as security, and that his discretion shculd not be in- terfered with in this case, Rotlicraiii V. Priest. 49 L. J. X. S. 104. and Oriental Bank v. J-itzaerahl. \V. X.. (1880) 117. followed. La7^' v. Ncary. X, 592. And see Bills and Xotl.s, X. Practice — Order AlUneiiig Scr- liee Out of Jurisrdiction — Xot Serv- ed — .Ippearanee — -Waivcv. (Jn a motion for final jndgnient. under sec- tion 34 of The Queen's Bench Act, 18S5, tlie nnn-ser\ ice of an order al- lowing service ntu of the jurisdiction IS waived Dy appearance. \ IF. 454. Proof of pleadei". | — ( la:;i ease ) . tlie defendant entering iriiilla v. MeCuai^. Judgment in Inter- See I,vtkki'Li;ai)F,i;. II I\'. .\Mi:.\IiMK\T .\.\I) CoKKECTIO.N". Varying Minutes, j tion to vary minutes. — L'pon a mo- 'iie later rule is that the only (|uesti..n to he argued is. What was the actual order made ... - latter nrder was di- recteil lo he inserted. luilfonr v Ih-uniniond. IV, 467. \'. F.XTKV .Wll nnCKKTtXG. Unnecessary to Give Priority.] — It is not necessary that a judgmeni he docketed in order to have priority of simple contract and sjiecialty crcd- itcirs. frontcnac Loan Co. v. Mvr- rice, III, 462. \'I. R,:gisth.\tio\. Informalities.] — .\ certificate ur- \i\()r. Oiilarin luni!: v. MeMieken. \1!, JO.?. Always Ready to Attach. |—/',r Killam, J. — A registered judgment al- t.iehes upiin land accpiiied sub-;e(|uen' i.> its registr.ation. Harris v. Raii- \ ■ nil. I I : Priorities. I — Held, notwithstand- ing the stattite 57 \'ic . c. 14. and s-S. 40S 409 JUDGMENTS. 410 Ignu'iit ill is i."a.--v 14 ; the claie Slid. a> to he .'I li, is \aH(i. ham >. •"osier & ale \va- Tlioiiia- er, trad- for $1.- VI, 17;. ts Dead, i uilgimi' •eil wilh- •iit, nr a me of ihc \ he en- he >iir- ;tiiein a!- i.ih'^einu T-' V. A'j;.- ,-itli>latT anil - (j8, 6 1 orders at law for the jtay- ; nionej' or costs, referred to K, S. M.. c. 80. s. 3, ■■ constitute uiiliinients and have all the force niid effect of judiinienls at law," ytt there i< nothini'' in the st.il- w'xy or till I lice of the Court !nienl rolls upon iheni as in the :i-( (if ordinary iudij;nients, and what l>iii]Mrted to he a judgment roll en- ;treil he'?' i-non such an order was rderei !■.• !'■ taken off the files of •''(' ('ui;'! Gihboiis V, Chadwick. IX. 474- \ ill. ExFOKCKMr.xT or Domkstu: JfncMKXTS. Action on County Court Judg- ment. ■ — .All acli.in wil" I iimiy C(.>urt judgment. ly\in. III. 90, lie ujion a Action on County Court Regis- tered Judgment.] — A County (.' iir: juilunienl for less than $ioo. ii-gisiered hefore the County Court .V-i (.f [S.S7, and re-registered under ">;i' 11 1,^5 of that .\ct liefore the ist \ 'vcinher, 1XS7. is valid and m;iy he i-i'irced hy hill of equity. Ihiit v. '"'i'-''. \'. 150. .^'lion on Registered Judgment - IxsijiiuHcnt of Judi^iiiriit — fssuc of ''■'. /•"<;. — Roiicdics hy fssuiiii; ll'rifs ■ Rrccutioii ond Rci^isfcriiig of '■'■i!;^nh-nt.] — Bill hy the assignee of a ;el>tor to/lppear on .Ippli- cation. — A judgment debtor served, under rule 80.? of The Queen's Bench Act, 1895, ■^^'i'li 't notice of motion crlling upon him to show cause why the land ad'ged to be bound liy the registration of a certificate of judg- ment against him should not be sold to satisfy the judgment has a right to be heard on the motion, and to ob- ject to the sufficiency of the materials filed in support of it. although he may Iiave transferred all his interest in the land 10 a third party for the pur- pose of defeating creditors, or other- wise. The Fidl Court will not grant a postponement fur the ])urpose of en- abling the applicant to procure fur- ther evidence which he might liave got at an earlier stage of the proceed- ings. The evidence fileil in sujipori of the motion for the sale of the land in (|uestion consisted of an affidavit n:ade by a clerk in tlte plaintiffs" em- ployment that they had recovered a judgment against the defendant in a County Court, and caused a certifi- cate of said judgment in the proper form required by the statute to be is- sued, and that the same was duly re- gistered in the Land Titles Office for the district in which the land was ^it- uated, biu not showing his means of knowdedge of such facts : and of a post-card, dated at " L. T. O., .Mor- den," containing a memorandum to the effect that a certitica'e of judg- ment for $110.20 against Roljcn Warener, in Belmont County Court, was received and registered the 24111 July, i8(X), in suit of Massey-IInrris Co. V, Robert ll^'arencr, but not slat- ing where Uic same was registered. The memorandum had the words " District Registrar " at the loot, without any signature or name. Held, that such evidence was not sufficient to warrant the making of an order for rale on such a iiKJiion, Miissey v. Jl'arener, XII, 48, Enforcement Against Trust As- sets — Real Property Aet.] — That w here lands under The Real Proper- ty Act are held in trust, a registered judgment against the cestui que trust may be enforced against the lands so held, and the trustee holder of the certificate of title compelled to make the necessary transfer. Re Massey Sr Cibson, 7 M. R. 172, followed, On- tario Bank v, MeMieken, VII, 203. IX, Actions on FoREirx Judgmexts. A Foreign Judgriant — [s ii Simple Contract Pcbt.] — Martcl \. I'ubord. III. 5y8. A Foreign Judgment — Is a Liquidated Pcmand.\ — ll'liitla v. Mc- Cuaig. VII, 454, Conflict of Laws — Foreign Stat- ute of Limitations — Interest on For- eign Judgment.] — In ;in action com- menced in Manitolia in 1878, on a judgment recovered in Ontario on /tli October, 1864, the defendant set up that the debt on the judgment had been extinguished by R. S. O., c. loS, s-s. 2,1 and 15, which declare no ac- tion shall be brought to recover ;i;'y sum of money secured by any niiri- gagc, judgment or lien, or other\\'-<' cliarged upon 01 payable out of ■.>.:•■■ l;md. etc., but within ten years, et . determination of the period liniit'^l 413 JUDGMENTS. 414 til [iiiy person to bring his action, the rigliL and title of sucii person to the land shall be extinguisiied. Ilrli!. that this enactment tleprived ;h! |ilaintiffs of their remedy in On- tario against the debicjr's lands only, ;,i.d that his personal ol)ligation upt)n the judgment existed lor twenty years from the dale of the judgment tiiiiler R, S, O., c. 6i, s. i, which en- acts that an action on a covenant, 1)1 nd. or other specially shall be com- iiKiiced within twenty years. Ilcld. also, that though interest on a I'l 'reign judgment could not lie re- cm cred as incident theretn, a jury nri;ht allow interest as damages, bui not more than six years arrears. Bank ,if MtDitrcal V. Cornish, T. \V.. 272. Non-Service in Former Action.) — Aciiun upon a judgment obtained ill ilie Province of Quebec. Service of writ in the original action had lieen eftVcted by advertisement. Defend- ant never resided in or carried on lni>iness in the Province of Quebec. and had no perse nal knowlege of the priieeedings in tlu action. Ifi-Id. that the defendant was not biiiind. Sclinciilcr v. IVoodii'orth, I, 41. /Ind sec British Linen v. Mcllxean. VIII, (J). Interlocutory or Tinal Judg- ment — " Xcvcr lndcbtcd."\ — An action will not lie upun a foreign iiiilgnunt unless it be tinal. Tlie dis- tir.ftiiin l)etween a final juilgment and :'.:i iiueflocutor}- order discussed. The li!e;i of " never indeljted " is appli- cable to a declaration upon a foreign iiiiigmont, and puts the plaintitt to ilie proof of a judgment sufficient to 5Ufi|)ort his action. Graliain v. fiar- risint, VI. 210. .Vii- also Brcnchlcv v. Mcl.cod. \1I, 647. Defences Baised in Former Ac- tion,] — Action upon a judgment ob- la'tied in Ontario for goods sold and (KI'vered to a firm of which defend- ant was a member. The defendant defended the original action upon tlie g:r"nnd that prior to the sale of the ge.ods the- defemiant bad left the tiriii. and had so noiiried the plaimilt. .Al- ter a verdict had lieen entered for the lilaintiff the defendant moved in Term fur a new trial, upon liie ground that the verdict was against law -and evidence and the weight of evidence, but his motion was refused and judgment was entered for the plaintiff. In the present action the defendaiu pleaded the same defence. On motion to strike out the picas, up- on the ground that they delayed and embarrassed the plaintitf— Held, that the plea should be struck >'Ul, and the plaintiff permitted to sign judgment. Lianlt \. MrXal'h. 1. ,^3. Defence which Might have been Raised in Former Action — Count- er-Claim.] — .\ plea to an aciiun (in a foreign judgment, of the Statute of Limitations, to the original ctinse of action (Hight not to be struck out as embarras>ing; a plea of the Statute of Limitations being /t;.r foi'i. and one which coultl not have l)een ])leaded in a foreign country. Nor should a counter-claim l)e struck out where, at all events, the defendant was imt beaind to raise it in the original ac- tion. Queer' — ■ Whether the Manitoba statute relating to foreign judgment ^ does not entitle the defendant in an action on a foreign judgment, to set up any defence wliich he might have set up. if the i>laintiff had sued on the original cause of action instead of on the judgment. The British Linen Co. V. Melixeaii. \'I, 2<)2. See alsii Myers v. Priltie. I, 2J. Defence which Might have been Raised in Former Action. | — 'l"o an ;ietion on a foreign judgment the defendant pleaded that he was not at the commencement of the >uit in whicli the alleged judgment was re- covered, or at any time previous to tiie recovery of tlic alleged judgment, resident or domiciled within the jur- isdiction of the Court, and that be had no notice or knowd^-'gc of the suit, or any opportunity oi defeniling himself. Held (afifirming the decision of w 415 JUDGMENTS. 416 Killani, J.j. tliat the pica was bad, because it did not aver that the de- fendaiil was not a ,sul)ject or citizen of tlie foreign country, and not amen- able to its inristliciion. J'oz^'lcr v. rail, 2/ U. C. C. P. 417: 4 A. R. 267, followed. McLean v. Shields, (j O. R. ()tj'j. not followed. 4'S \'ic., c. 15, s. 45, s-s. J (R.S.M., e. 1. --. ,Vj). provides that "a defend- ant in any action upon a judgment obtained in any Court out of the Pro- \iiice. or up(jn a foreign judgment, may plead to the action on the mer- its, or set up ariy defence which might have been i)leaded t(j the orig- inal cause of action for which such judgment has been recovered." J/fld (reversing the decision of Killam, }.). that the defendant, in an action on a foreign judgment, may plead on the merits to the action on the judgment, or he may set up any defence which he might have set up in an action on the original cause of ac- tion in the foreign court, but he can- not i)lead a defence which lie might ha\e set uii to the original cause of action, had it lieen sued upon in Man- itoba, but ,,hich could not be raised in the foreign Court. The defendant also pleaded that " the alleged cause of action, in re- spect of which the alleged judgnieni was recovered, did not accrue within six years before the commencement of the said suit in the declaratioti mentioned, or within six years before this action."' Held, that the plea was bad for not averring that the facts stated therein would constitute a defence in tlie for- eign Court. British Linen Co. v. M'eJiicaii. VIII. 99. Defence which Might have been Raised in Former Action, | — To •a count rin a foreign judgment the defendant pleaded nine pleas which might have been pleaded in the for- eign country to the original cause of action. There was no evidence that they were untrue. Held, that these pleas could not be struck out on the groimd of embar- ras.sment or delay: and the fact that the plaintilYs might be put to great expense about procuring evidence in the foreign country to meet, by way of anticipation, what was set up in the pleas, was no ground for strikitig them out. Iiitenuilioiuil. Etc., Cor- /•oratidii V. Great Xorth-U'est Cen- tral Railzeay Co., IX, 147. Appeal Pending Against Judg- ment.] — The plaiiuiffs sued as as- signees of judgments for costs rccov- ercrl against the defendant in actions brought by the Railway Company and one Delap in the High Court of Justice for Ontario. The defendant liaving entered an appearance, the plaintiff applied to strike it out and sigii judgment on the usual affidavit. Defendant ojiposed this application, claiming that he was api)ealiiig against the Ontario judgment-, also that the power of attorney under which the assignment by Delap was executed did not authorize such an instrument. The power gave auth- ority to sell and dispose of, among other things, " bonds, mortgages and other securities for money." Lfcld, I. That the pendency of an ajipeal against a foreign judgment { would bt' no defence to an action up- on it there, although the Court niii;lii I stay execution on iiroper terms. 2. j Tli;tt there is nothing to prevent a i Railway Company from assigning a judgment recovered by it. Hozcland V. Codd, IX, 435. See F.i.Erriox of Ri^MF.niEs. X. Sktttxg Aside. Ex Parte _- .imdavit of Merits.] — .\ judgMient by default, r.'gularly >igned. cannot be set aside ex parte. but onh upon notice to the plaintilT and an affidavit of merits, and tlii-; nilc applies to the County Courts as well as the Court of Queen's Benc'i }[cKay V. Ruiuldc. VIII, 86, Affidavit of Merits.]— The evid- ence contained in the attidavits as to the merits of the defence r;iised no' being satisfactory or convincing — //(■/(/, th;it the plain' iff 's judgment should not lie set aside m the mean- 417 JUDGMENTS. 418 tiiiic and that lie should lie allowed to remain in possession of the pro- perty, whieli was the subject of the actiiin. U'Siillrc'aii v. Mort^liv. (18S4) 78 L. T. 213. followed. Costs of the applic.ition reserved uiilil after the trial. Rilz v. Scliiiiidt. Xll, 13S. Affidavit of Merits — Piscrction — Mistake. \ — Under rules 339 {a) niid 655 of The Queen's Lkncli .\ci, 1S05. a defendant seekinj^ to set aside a jiulgincnt entered by default is not (il)!iged to show the e.xistenee of a de- fence on the merits as clearly as was rif|iiired in order to set aside a juilg- imiit on default of ajipearance under The Common Law Procedure Act. l)iu there is a discretion to let him in to defend if the Judge thinks that un- der the circumstances he ouijlit to l.)e lierniitted to defend. The i)Iaintifts' claim was for ^!am- ;(i;(> fnr breacli of a contract to de- l\w\- a f|uaiuity of wiicat. and the dc- fiiiilant bona fide intended to contest ilu chiim. but made a mistake as to 'ilk- time of service and tried to put in ihr \ li' nlil not be interfered with. Mnorc w Kennedy, XU, 173. Delay in Application. | — The writ 1" summons was issued on 23rd June. iS^!^ Judgment was signed loth ti :'v, and execution issued i6ih Julv, |>>^,1. On 3rd .March, 1884. defend- 11! .ipplied to set aside the judgment, >!i the ground of irregularity, and on •lie merits. .Applicatitm refused. /' •'* \-. Calloteay. T, 102, Delay in Application. | — Where ■■'iTment obtained and execution p'.H-ed in sheriff's hands, and no ap- ulii-.-ition made to set aside for nearly :; vcar — Ci Held, that after >nch delay, the ourt wmdd not interfere ui)on a {roiintl of irreg uianty. I Bank V. McDonald. I. ;,.V: "Writ of Summons Not Served — frrei^nlarity — H'anl of .Merits — -Vi'Xi.' .^lateria! \ot to he I 'sed tm .-//'■ t.al.l .\cti( igaiu'-t Iwn defend- mts cninnunced in May. 1883. judg- ment signed in .September, 1883, for ant ot ai)pearance. Th ere was an itti(l;i\it ot persnnal service filed. Defendant I'., in October. 1892, ap- ■ilied to set ;i-ide the judgment on' the ground iha! b;id never I)cerr str\ed with ilu- writ, and liad only lately learned of the judgment, lie swure posit i\ely that prior to the (Ifite given in the :irrid;i\it as that of the service (if the writ he had left the Province, and did not return for ■iome years .afterwards, and never v,as served with tlic writ or any \x\.- pers of any kind relating to the suit; some other jierson was served take for defendant. Defendant did lot swear to merits, nor did he show t liad never cnme tn his wri that the knnwlcdge. //.■/(/, that the Tact that defendant never wa- served with the writ of summons or a co ry til ereot constit- uted an irregularitv cnilv and tint a nulli Ii irder to take .advania se (if such irregularity, defend.ant must show, not only that he was not serv- ed with the process, Init that such lUMcess did not come to his know- ledge or into his possession. On ;i summons bv way of apneal from an order of tiie Referee, 11(1 if- lidavits can be looked at except those that were before the Referee, Rnlli- erford v. Hready. IX, 29. Mortg'age Suit — Frand at Sale— Fiirfie.s. | — A decree was made in a mortgage suit for sale (>f the mort- gaged premises and payment of any deficiency after sale. The lands were knocked ddwn to P. The Mas- ter made a report contirming the sale, and found a large lialance due pltiintff by C. and .G, for wTiich exe- cutions were issued : and the lands were vested in P. .Stdiscqnciitly, it was alleged on petition that plainiifT 419 JUDGMENTS. 4l'0 rcilly lu'ld ilic iiiDrtR.'ijTo as numiiuc and lru>ti'i.' of a icilain Coniiiany ; thai tluTc was im rial sale In P., to wliDin tlu' land was kni ckcd down for the l)(iutit iif the Ciinii)any; that P. traiisfcnud the land to an officer of the Company witliout consideration; tliat this officer transferred it to an- otiier wlio snl)set|uenlly died, having devised the land to his executors in trust for the Company'; tliat these of- ficers always admitted themselves to 1).-' trustees of the l;in(l< fur the Com- pany; and that all the proceedings in the suit were condncied for and on heh.alf (if the Coinp:niy. ;ind at its ex- pense. //(■/(/. tli;it the report confirming the sale and the vesting order were ohtained liy a fraud mion the Court and the defendjints. In the ahsence of some of the p.irties interested the sale could not l)e f-irmally set aside: l)Ul it. and all the suli:-e(|uent proceed- ings, ciiuld he treated hy the Com t as nidlities; and. as all the iiartie-. concerned in the suhsecpuent report and the H. fn.'s issued tliereon were before the Court, those proceedings should be set aside. Tavlor v. Sliari'^. VIII. if.j. Consent Order — l\iry!ii;^.\ — An order Mi;ide on consent cannot he \ai-ied i>r set aside, except by consent, without showing some ground of sur- )irise. mistake or fraud, or other ground which would invalid.'ite an agreetnein between the parties, ffar- vcy V. Croydon. 2O Ch. 1). 240; Aiis- trahisuvi . luloiiiatic. lite. Co.. v, //-'ff/i\-;', W.N.. ( iSoi ) \-o: llnddcys- ficld BaiiHiisi Co. v. Lislcr. (iSi).;) _> Ch. 2~\. t'i'llowed. Grant v. MrKcc. XI. 14?. Default of "Plea— When Particn- h'.r.t \'rr(-s-vi/;-y — Interest Subsciiiicnt to ll'ri!— S -t'.lsidc if for too Mncli.] — A foie-.^fii iudgment constitutes ;i simple c::ttr:ict debt. Judgment by defatilt. therefore, may be signed in an action upon a foreign judgment: and also for tlic costs of a motion inade in a foreign ;iction. Final iudgment in default of a idea to a de- clar::lion upon the connnon courts cannot be signed unless particulars have been served. Judgment in dc- far.lt of a plea cannot include interest subsc'iuent io the issue of the writ, ah hi 'Ugh iudgment in def;iult of ap- pearance may. Judgment in def.-mli of a plea ha\-ing been signed for $4.1;^ tod much, it was set aside, and nut merely reduced by that atnoinit, a neritiirious defence being swum [n MurU-l V. I>iilu>rd. III. .vA .\1. {■'\.\M1\ A'^ION' Ol- Jfl)(;.MI-:.\T DKllldN. Keturn by Sheriff Necessary — l:.Viiin:nat!on of Contrihutorir.'! in !!'inilin}^-iil^.\ — Order to pay. utider Section 7S of The Winding-up .Act. !\..">.C.. c. i-' been issiu'd. placed in the sherilT'- h.'inds, ;uid returned nulla boU'i. or that if called npou to return the fi. fii. th( sheriff woidd return the same nulla bona. (>U(,vi' — Whe'.her contrihtnories z slicrilt'- boibl. i'T 1 ihi; fi. fit- the sami.' itorics . led niilld jiiit'icd the jcalU'd iip- lioii. ,T. |i's Bench Inty Court Ir the c\- kors. liiidtcnii'iii Ito cxaii! iiu. tlieni, " tmiciiiiiK tlieir estate ;ind i ct'fects " — i Held, tliat tiiey could he cxaniiiied j as to their individual esttite ;uid ef- | ticts as well as to their linn or joint | li'dpertv. Imperial Jhiiik v. Smith. -II. 4>. I Older Discretionary — .V<)/ Ex ,' .."•/('. I — lltlil. I. .\n order to ex- iiininc a judgment dehtur iii;iy. in the iliscretion of the Judge, he refused. -' .\ii order to ex.'iniine ;i judgment liii'inr will not he made I'.r parte. :erL:us(iii V. Cluuiilre, II. iS.j. Order Discretionary. | — Whether .ill order will he made fi)r the exaiii- iiuitifin of a judsment dehtor is dis- crtiionary with the Judge .'ipplied to. '■'he deht heing amply secured, an or- i\r was refused, and upon .appeal this iifnsal was upheld. /'<•;• Dnhuc. J. — When a Judge has 1 (liscretinn to exercise and has ex- ucisfd it, his order should not he re- M-;iided unless it is fotnid to he maiii- fi-ily erroneons, through miscoiicep- 1:11: nf some facts or of some jiriu- (•ple of law. l-enntsou w Chambre. HI. 374. Conduct Money. I — .\ judgment I'kliiiir ser\ed with riii order and ap- I'Minnuent under srction 5_' of The .Adniitiistration of Justice .\ct. 1S85, is entitled tr) he ])aid conduct money ,iii(l expen-es. as in the ea:-e of an I'olinary witness. Cial! v. Slaeey. \'. I -11 Examination Under Judgment for Costs — Pepositioiis Improperly /i;'r;;.| — .\ dehttjr. under .a judg- II till for costs rjiily, cannot h,' exani- iiH'd as to his means. .\ dehtor hav- ii:g heeii examined under such a if.d'iment — //('/(/, tiiat the depositions could I'"' he read on an application against liim under The Dehtors Act. Waters V. Hellamy. \'I. 20.3. Production of Books _ \-otiec to Prnhice.] — For the purpose of com- jicMing a defendant, upon his exani- ii^r-.lion as a judgment dehtor under ''1 '0 ~,'\2 and following rules of The Queen's Bench Act, 1895. to produce .iiiy hooks and documents recptired, it i> sullicient to serve ;i notice upon him to produce tiieni, and it is not i:ecess:iry under rule 7,^6 that the judgment delitor should he served x'vith a suhpiiiio diiees teeuiii, as in the ea.se of a witness at a trial. Rus- sell V. Maedoitald, \2 P, R. 43S, and Jureerv v. Il'olfe. 10 1'. R. 4SS, fol- hnved, ll'hilhi V. ./..,'i(,-:.'. XI. ()f). Officer of Corporation — !'r- tir:ct e\dde!ice that the ])crson named is an olTicer of the Corporation and v.l,;it olVice he holds. \'o order can he made that an officer do pruduce the ho.'.'ks, etc., of the Corjxiration. Xo order can he made directing that the costs of the applica.ioii and exam- ination he adiled to the iiiaintilif's deht. Jukes v. Tiie U'iiinipe!; & I liidsKii's Inty Niiilzeay Cti.. V. 14. Offlcer of Corporation — I'rodiie- ilaelicii of lhiiii:s hv Corpi>rat!on.\ — L'nder section 52 of Tiic Administra- tion of Justice .\et. 1(^85, an order I'lay he made fni- the exaniinniinn of ;•.!: ofiicer of ,'i iudgnient del)t('r Cor- fjcratioii, and f'«r production hy the Corporation of hooks, papers and doc- uments. Mann v. 77/.- U'imiipe:.^ tance of the sheriff to maintaiii or aliandon his claim, may examine tiic judgment debtor as to the nature I't his dealings with the other judgnur! creditojs, and as to the indebtedut. - on wdiich such other judgments wer^' obtained, and such examination may 42.5 JURY. 486 \h- used upon till' fotur ■ nf ilic iiiU'r- I ir.idcr siinininiis. iarsiddrn v. /.htnitcnitiui, IX. 17S. XII. S.\TISF.\CTION AN'l) P.W.MENT. Satisfaction.] — An ;i|)plic;uinn :•• -lay prucccdings upon ;i iuili^iiR'Hi ei; ilic gi'dund of its ^aiisfariidn can |iiiip(.rly lie made in Chanijjvrs. .1/(7- JUDGMENT DEBTOR. Sec MUSU.\NI) ANMl Wn-K, II. .Vi'i- Jrnc.MENTS, XI. JURY. I Right to Tri.m. r,v Jury. 11. I'lXCTlONS 01- JUKV. Hi. Sl'I-XI.VL JUKY. 1\', JuKY Fee. \'. Selection anu Challenges. T. Right to Trial p.y Jury. Order for Jury — Jurisdiction of K.icrcc] — The Rufcrec in Cliani- 1m r-i lia.s no jnri.sdiction to nial^e an order for trial by a jury under 54 \'ic., c. I. s. ,33 (M. i8qij. Sciitblc — Siicli an order .slioi.ld not in any case be made ex parti Scott V. Thompson, VII. 472. Order for Jury — }.Iatcriiil.] — In order to obtain a trial by jury, it is not sufficient to show that there are i.ssues of fact between the parties, for. by statute, issues of fact arc not to be tried l)y a jury, unless an order ' !• made for the purpose. Some ground must l)c shown to warrant ac- tive interference by makinji the * a Jud^je in Chambers, to have the is>>u' tried by a jury." //<•/efendant.] — Where by in- ;id\ertence replication is filed without a jury notice, leave may be given to withdraw it in order tn re-file it with a notice of jury; and the fact that the defendants allege that, owing to ex- cited feeling, a fair trial cannot be had before a jurv. will mn lie an an- ■-wer to the application. Kajotte v. I'hc Canadian Pacific Railteay Co.. v. JQJ. Striking Out — Jury Notice— No He fence.] — Upon an application by the plaintiff to strike out a jury no- tice— IMAGE EVALUATION TEST TARGET (MT-3) V e /lv#^ 1.0 I.I ■ma ■ ' I2=E lint o o 2.0 1.8 1.25 III 1.4 !.6 V} <^ /}. VI e. (T). oi^ ^.> o //. 7 /A Photographic Sciences Corporation o\.* f> #. 6^ ^J'-s 23 WEST MAIN STREET WEBSTER, NY 14560 (716) 872-4503 m % V (S^ mp- •:, » Ill 427 JURY. •12« H //('/(/, I. Ip(|iiiry will he made iiitii tlic facts Id asccrlaiii wliftiicf the case is i!iie wliicli '.iukIu Id lie siil>mitU(l to a jury. J. It die (lefciidaiit has no (let'iiice he is not entitled to a jury. Ciirisliiu' V. Mcncics, II. 84. Striking' Out Jury Notice. | — .\ jury notice will iml he struck nut un- less tiicre is some suhsti'ntial reason lor it. The mere assumption tiiat a Jttdije could try it heiter without than with a jury is not a suthcient ground. i'lic Manitoba Mortfiunc Co. v. Stcz'- t-iis. 1\ , 410. Counter-Clnim for Caase of Ac- tion Usually Tried by J rry. | — A counter-claim is not an ■ . t- >-i within the meaning of Tlie (j; ;•'! ,•< Bench .•\cl. 1S1J5. not heing a civii proceed- ing commenced liy sliitenx-nt of claim, and a defend. ml is i.r' i.!'.»'tled to have his coii,;ier-c'aii;'. t • ■' ;v ;i ji'ry l)y virtue of i^ccti^.r. ui)- section i, although sucli .ov-.tier- cl.-.im is t'o!' damages for brer, h of warranty ; nor does tiiis constitute any speci.al ground for an order un- der sub-section 3 for tri tl by jury. Case V. Laird. S M. R. 461 : ll'oolla- cott V. iriiiiiil^r^ lUcctrii Street h'ail- tvd.v Co.. 10 .\r. R 4X_>. followed. Bergman v. .'i'mitli. XI, ,V>4. Action for Malicious Prosecu- tion. | — .Since the statute 54 \'ic.. c. I. s- .^.V which enacted that all issiie-> of fact in civil cases, except in action^ of libel and sl;inder. shall he tried by a Judge without a jury, hut provided that an aiiplication may be made to a Judge in Chandlers in any case to ha\e the issue tried by a jury, siiecial circumstances nnist be shown in or- der to have ;m action for malicious jirosi'cution tried by a jury. By the rt|H;d of the former statute the I.eLnslature showed that they consid- ered that an ordinary action for mali- cious prosecution sliould be tried Iiy a Judge witiiout a jury. Harrie v. Sv.owden. IX, .u.V Action for "Davcvasies^ . \ s.tessnient of /'i/;H(f.^'.'.\". I — The irn'mer po'icy of the Legi'-iature. which entitled p.irtics to a trial hv jurv if they wish- ed, was clianged by the Act 51 Vic. c. 1, s. 3,?, .-ind now the onus is ihrnwn ujion the party who wislies a jury, except in cases of libel and slaiuler and the other causes of action naiiucl in secti(!n 4g of The Queen's li'mli .•\ct, iiS')5, of showing that the ca^e sh.ould be tried by a jury and not by The i)l;iiiUitT's claim was for d.tin- ages for being knocked down and in- jured by a car of the defen- se^-ing the damages. lleUI, that no suthcient reason was sliown why a siiecial order for a jury should he granted. .\ Judge who lias jurisdiction to try the issues of fact in any case may at the sa.nie time assess the damages, and it is not necessary to simimon a jiry for that iiur])ose. l\'oolUi,\Ti/.v, T. \V.. 74. III. Si'Ei I.\l. JlKV. Order For — Time for Af'plka- //()/. I — .\n application for a speci.d jury may be made in Chambers, but is nuire proper before the .Assize Jf.dge. It is not necessary to give .•my reason frir retpiiring a spici.il iiu'y. .A plaintitt may olitain an or- der for a special jury e.v l^orte. .\ defendant shall move upon summons, but not necessarily before entry (^t the record. The Molsons Bank v. Rob- ertson. \'. ,^,v li"' ^"*f"pl 429 JURY. 430 Statute. I _ Sfc'tioii _>(> of ChaiitiT 31, C. S. M.. applies bdtli to special and CDinnu'ii juries, and the verdiei of nine or mure jurnrs is, in jitlier case, snffieicnt. Robertson v. Mc- Miiius. I, 348. [\'. )vu\ Fee, Effect of Non-Payment on Ver- dict.) — .Mtliouuli a jury fee would iKue been p;iyalile Imt for tlie exist- ei;ee of slander aiicl libel counts, and althouRh no evidence of special dani- age was given under these counts, yet a Kcneral \enlict winld not for iiiin-p.iyinent of the fee l)e set aside. .\li\\fiiii(ii;lr \. Orion. \'. i(),v Second Fee After New Trial Or- dered. | — j(j \'ic.. c. 4. s. J. prnvides tli.it " .\i> civil cause shall b;- enured til be tried by a .iur\-. or sh.ill be tried by a jury, until the i)arty ri(|uiri!ijj; the jury sliall have deposited with '111' siieriff the stnn of $_'5. to be a])- plied towards the payment of jurors and siiall have file.l with the Prothon- ntary the slierifT's receijjt for the ?-'.;." Tlie defcndain complied with this enactment. The action w;is tried with a jury .-iiid a verdict rendered for the defendant. .\ new tri;d was ordered in ienii. The defendant did not |i;iy ill ;iiiy further sum. T!ie plaintilT then mnvcd to strike out the jiTy notice, ilain. j.. unide the or- (I'M-. The defend.int ajiplied to re- vir'^e tile order. /'(';• Ciiriitni. — .\pplicatioti .-illowed wi'h cost^. .\ second )>;iyinent was ti'>; nece>-;irv. l-.Uiott v. W'ilxon. \'\. (\\. \' . Si:i.i:(r[o\ wn t'li \i.i.i:\r,i.-.s. Challenging Jurors. | — A clial- Icniie lies both to the .-n-r.-iy of the praml jury ;ind to iIk' iiolls. as in the case of a petit iury. Scuiblc — Th;i! the reahinn the panel (;is for favor), uliich were foutided on the discre- tion of the siieriff in sclectinc iuror^. do not api)ly at the present time, as llie slieritT empanels tlie jury from lists of selected jurors prepared for bill), lint a sulistantial de|)arture of the slierilT from statutory directions miglit lay tlie panel open to cliallenge on liie grouiul of defauil of tiie sher- iff. A'('^'. v. Anderson. T. W., 177. Mixed JvLviea — J nrors Skilled in the L(in;^ii(i^e of .'le Pefenee — Chal- teni;e to .Irray — Peinurrer — disc h'eserfed — Writ of lirror — I'ltra I' ires — Constiliitionul Law.] — 'I'iie prisoner, li;i\inir iileaded to .111 iiidict- nient for unlawfully wonnding with intent to maim, demanded a jury composed for tile one-half at least of persons slt sufficient jurors on the p.iiiei SI si^illeil. 'I'lie prisnner tliiti clial- ki:ged the array of jurors on that gii imd. 'I'lie Crown demurred, and jfdgmeiit was given allowing the de- nir.rrer by the Judge presiding at the The learned Judge then re- a case for the consideration Court for Crown cases re- a^-i/e. served of the served. field r.'iv of arising I. Tli.tt ,1 challenge to the ar- jurors is ,1 (pu'stion of law on the tri;il, which may lie reser'ved witiiin the meaning of \i. S. C. c. 174. s. 2s(j, but. J. ( Dubnc. J.. dissenting), that judgment having 111 en gi\en cm the deiiiitrrer. it li.ad bt c. nie a matter of record and tile (;restiiin coiild not be reserved, a writ I if err(ir being the projv.T remedy. I he ca«e \^as. therefore, dire. -ted to be (|ikis1k'(I. A'r.-,'. \-. I'liderniiin. 14 jiir. ,?77, and /v't';.'. v. ()'f\'ourke, 32 ['. C. (■ I'. .^'^S, con-idered and com- IIU tltei! nil. :'er I )iibuc. J. — Tile jury, when t 'I'liatielled and --worn, l)ecome ;i part ■ f til' constitution of tlie Court, but the ^electing and sniiimoning of them are niattcrs of criminal procedure, ii\er which the ["'arli.anu nt of Canada i,|s exclusive iurisdictioii. f'er Dubnc. J. ( also ).— .Sec. \()7 of The Criii'in.il rmcedure .Act, K.S.C, c. 174. is intr.i -eires of the Parliament f.' 1 : ■■' 431 JUSTICES OF THE PEACE. li'l II 1 : IP I I ■ of Canadii, and in this Province a prisoner, if lie so desires, is entitled tn be tried I)y a jury eomijosed for the one-lialf at least of persons skill- ed in the lanRuaRC of the defence, if that lansnage is the I'rench or Eng- lish language. Rc^. v. I'hmic, \'H, Mixed Juries — Selection.]— T\k prisoiner, a Canadian speaking Frenchman, demanded a mixed jury. Tin re were not upon the i>anel a sutfi- CH'iit miml)er of persons (pialitied in the i^rencli language. Instead of fix- ing another day for the trial, and liaving snnnnoned the persons next upon the jury roll, the sheriff called upon a person then in Court, who without objection acted as a jury- man, The i)risoner was found guilty. I'pon a writ of error — Held, that the tr-al was a nullity, and th;it the prisoner nuist he com- mitted for trial. Res,, v. I.eveque. Ill, 582. Juror not Understanding Eng- lish.] _ The fact that one of the jury sworn to try the prisoner did not thoroughly understand the Eng- lish language is no ground, after trial and conxiction. for holding that there has heen a mis-trial, or for gratuing a new trial. It is too late to ch.'illenge a juror after he has heen sworn, even if the gr(Mmd for challenge was not known at the time. Ignorance of the English language would not in this Province lie a ground of challenge of a juror. Reg. V. luirl. X. 303. See also ]aw.\.. JUSTICES OF THE PEACE. Qualification.] — A magistrate is not (li-Miualitied to sit upon a case un- der The I.icpior License Act hy rea- son of being an honorary member of a Temper.ince I'nion which h:is taken active stejis towards enforcing the Act before him and .provided fluids for that purpose; especially where the prosecution is not conducted liy the Union, and the magistrate's con- pectiou with it has been merelv noin- ii.al. Reg. v. Deal, (1.S81) 45 !.. T X. S. 4,^9. and Leeson v. ter and Servants .\ci. ,34 \'ic., c. 14. Mciritt v. Rossilcr. T \V., I. Conviction _ Xon-Paynient o' H'ages — lingageinent Terminated ] — In order to support a convict i' 11 tmder The Masters and Servan!> .Act, ,34 \'ic., c. 14, by a servant against his master, the hiring or en- gagement must be subsisting at the time of the comi)laint. Cpon a com- plaint laid by a servant for non-pay ment of wages, the Justice shmiM order the |);iyment of the wages aii not validly cieated thenhy so as to affect third parties. Imperial Loan and Inz'cst- iiicnt Co. V. Clement, re Coulter. XL 428. Mortgage — Lea.w from Mort- Ko.i:ee ti> Min-ti^a'^or — L..reessix'C l\eut.] — The facts in thi- case were similar to those in the preceding case, except that the kase relied on bore date 2lst Decemher, 181)4. and jiur- ported to let the land until 1st Xo- vemher. 1895. at a rental of $703. pay- able I St January. 1895, and that evi- dci'cc was given that the plaintiffs had insisted on the lease being sign- ed on jiain of eviction and sale of the property, and there was no evidence nr 435 LANDLORD AND TENANT. 438 I-; ■ 1- \l 1 ' 1 > that the iilaintitTs had imiicc of Mtir- rjiy's tiiiaiu-ial (litVicultivs. Held (Killam. J., dissciniii)^ ). tlial the lease was void ayaiiist i'xrriitii)ii criditurs oti account of the exci'ssivc aiiioiiiii fixed for rem. Ilohhs v. (hittiriii Limit <'V Prhcnturc Ci>.. iH S. C. R. ^Hv followed. Per Killam. J. — The circnmstaiice-< ^llowed that the plaiiitilYs hmta fide imeiulid to make a lease and Murray to accept the position of tenant at the rental named, and the lease .shoidd be iield to he valid not withstandiiiR the eNcev'-ive amomit of rent provided for. Im['criiil Ijiaii I'r liivrstiitciit ill. V. Clciiicnt. re Murray. XI. 445. Mortgage -- .Ittontiitciit CUiusc— Ihslres.K fur fiittrrst — Xot .■Ij^f'li- cahlr Id Pislress /.ir Rriit.\ — A niort- H.-i^e of land-» contained a speci.d at- tornment clause whereby tlie mort- H.igor hecame tenant of the lands to tlie defendants at a yearly rental e'liial to the interest on the amount of the loan to he paid at tlie times appf)inted for the jiaymrnts of inter- est. This mortRafie was not exe- cnled liy ilie mortuance. //(•/(/. that the relationship of land- lord and 'cnant was validly created between the i)ar!ies. and that on de- fault of any payment of interest the n.oripaijee miiilit distrain for a year's lent under the atlornmcnt clause, and take any jjoods upon the premises, whether beloiiRing to the mortjiaf^or or not, and make a valid sale of same. I.iiistrad v. Ilninillon Provident ir l.iitii Sneiety, XI. I'j'). II. XoTIi l-.S To QflT. Acquiescence in Invalid Notice — //'i/K'.T — Mediiiii}^ of " />y " 1/ Certain Pale] — When a monthly tenancy expires on the last take upon himself without in(|uiry the risk of any irregularity the hailiff might have committed and to adop; itll the hadiff's acts, and, following Lewis V. ki\i(l. ( 1X45) i,^ M. ,K- W. >^M. that the landlord was li.dilc for the damages suffiTcd hv the tetiatu. I'irh V. irinkL-r. XII, oia. For Interest — Coiistrihtion of .^7l),'((^•. I — Section J of The I'istress .\ct. R. S. M.. c. 46. has no reference til the right of niortgagii s to distrain f"r rent lunler a te-iancv validK- created, hut only to the right to dis- train for interest as such jirovided f'lr in the ordinary distress clause in the short form of mortgages set out ill the .Kct respecting Short Fornis "I Indentures. I.iiislcod v. Ilainilloii I'lovidt'iit c'' Loan Society. XI, kh). For Interest .1:1 mission to h'int Puc] — The plaintitT nied the (iefcndanls in t re-pass and trover for seizing and selling her crops under a warrant of distress issued hy them tlirecting the hailifT to levy the amount of arrears of interest due on a mi rlgage given them hy one Koh- ertson. the lessor of the plaintitT, on the land tm which the crop had heen grown. The mortgage contained iiic UMial i)ro\i>iou that the defendants night di>train for arrears of interest. It also coiuamed an aiormnent clause hy which the mortgagor hecame a tenant to the defendants of the land at a yearly rental e(|ual to the amount of intere-t pavahle in the mortgage. //.•/(/, thai 'under R. S. M., c. 4O. s. J, the distress was %vliolly illcg.al, as the defendant could only take the goods of the mortgagor for arrears of interest due hy him. The hailitf. after making the seiz- ure, neglected to give notice of the distress or to make an appraisement of the goods, hut it ajipeared that after the .>eiziire and sale "i the ci'.ps, the plaintiff's hushand agreed w:,h the defendaius' manager to pay 'he defendants $joo if they would .ihanuoii their claim to the crops, and proc '!"c a release front the person who had hought them at the sale, 'ihis money was afterwards p.aid and :iccu>i'--d hy the defendain-~, and they contended th.it the agreement was an ;idmi-si(;n of rent heing due and that the statute 11 (ie". _'. c. 10, s. ri), ap- iii'ed so as to ];revent the plaintitT fioni liringing an action such as the prisent. and that she was restricted to an action on the case for any spec- ial damages that she might he ahle to pi me. //(•/(/. that there w.is not sntticient evidence th.it any interest was in ar- rear on the mortgage or any rent I'verdue, ami that the a'.rrieinent en- I'Tcd into hy the iilaintitT's hu-hand <•■ iild not he construed as an admis- -inii ili.it a'ly ri.it was due Iiy Roh- ert-nn, ;in'! tlicret'ore that the case was not hrought within the last men- lioned statute. Miller v. The lm['■- fii:\-st.i!cnt Co.. XI. jjj. By Person Not Entitled to Rent or Reversion.! _ .\fter rent hecame w^ I- ;l, 'm m LANDLORD AND TENANT. 440 1;:: . t4i«jsfc |:. duf, till' lessor mortgaged the \nn- ptrty. Held, tint the mortgagor could not tlisiraiii. hecaiise lie had parttii with the resersion ; nor could the inori- grigee, hcaiise the rent was not due to him. Daiil^liiiiais \\ Clark, II!, 225. Irregularities — Exccssh'c Pis- trcss — 7'»'i'.v/'((.vj and Trtn'cr — Sot Guilty by Statute.] — Trespass or trover will nijt lie tiixiii a distress where there is some re:it due. The aetion should he ui)ou the case lor excessive damages, or for not ac- cc/unting for the suri)lus moneys real- ized, or for not returning the halanee of goods unsold. -After distress, any surplus moneys slionld he paid to tlu' sherilT, and unsold goods returned or i)lacoti in convenient place, with notice to the tenant. " Not guilty by statute " puts in issue the tenancy as alleged. If there be a variance as to the landlord alleged, an amend- ment may be allowed if the verdict be otherwise satisfactory. f'cttit v. Kerr. V, 350. Irregularities — Xoticc of De- mand. Etc.] — A count by tenant against landlord for seizing and sell- ing as for distress without giving the notice required by 46 & 47 \'ic., c. 43. s. 6, whereby the tenant lost the dif- ference btwecn the value of the goods and the amount realized by their sale. Held, bad on denmrrcr. Vaugltan V. The Building er Loan Association. \T. j8o. License to Distrain — Xot Under Seal and Without Consideration — Xuduni Pactum.] — The defendant attemi)ted to justify a seizure for rent under a warrant of ili stress by pro- ducing a document signed by the plaintiff, which purported to give him the right to seize the i)laintiff's goods for rent before the rent fell due ac- cording to the lease. The learned Judge found as a fact that this docu- ment was not scaled at the time of its execution, and no consideration was shown for the plaintiff execut- ing it. Jleld. that it was a nudum l^actiini. and that the defendant could not jus- iifv under it. H- axfield \. Cardiff. IX. 30J. Distraining Blasts of the Flnw.j — See l).\M.\(.i;.s. See also E.stoppel, II; SiiERiris, ill V. Rf.-E.\TKV and FoRI-EITtlRE. Construction of Covenant _ lU-eaeh — forfeiture.] — The deiiiul- ant demised a tlour mill and a .-aw li.ill to the i)laintiff and one C. the former representing antl covenaiuiiig that he was a skilful miller, and C. that he was a skilled engineer. C. assigned to the i)lain'iff all his iniiT- esi in the term. There were varimi.- other covenants, including one to take l)r<.cautions against tire; but the only t>ne in connection with which for- fi'iture was mentioned was the fol- lowing: That no intoxicating liqiinr . . . . shall be kept, used or drank in the building or near the same by the lessees, their employees, etc. The said mills shall be run by no per'-nn under the influence of licpior. and iliat under forfeiture of this lease." The ph.intitT did not work the llour mill regul.'irly. C. was not a comi'e'.ciit er.gineer. Some sack> had been neg- ligently left on the boiler ami li.nl cauglit fire, Intoxicating liquor luul been brought on the jiremises by .1 stranger, and the plaintiff and hi- nien had drunk some. //('/(/. that there was no forfeiture of the lease for breach of covenams in the absence of express agrieimin for such forfeiture. //('/(/. that forfeiture for breach nf the covenant respecting intoxicit'i.g liquor, upon the true construction tlnreof, would accrue only upon the mill being run by some one undiT ihf ii-.tluence of li(|Uor, ami not upon '.!• f|nor being kept, used or drunk on ilu- nremises. Comber v. LeMay, T. ^^'.. 3> Sec also \\'.\ste. ^ "T" ""71 441 LIBEL. 442 LAW SOCIETY. Retired Judge — / /.siVDri, 1— The L.r. Sncicty liail no i)ii\vcr in Jaiui- ,iry, iSS,^, tn I'x.'ict adiiiission fcc-i trum a retired JihIkc of tlu- Ciniri of (jiKcn's Bench. The JikIjjcs of the (.1 nrt of Queen's Heneh are visitors lit the I, aw Society. .As such visitors, they liave the jiower to visit tlie So- ciety upon every matter in respect of \'l;ich their Act of Incorporation i,':\i^ them tlie power to act (Taylor. ].. ili-senting). Rr Miller. Ill, ,M)~. LAW STAMPS. See CONSTITLTION.XL L.\W, III (b ) . LEAVE AND LICENSE. See LiCKXSE. LEX LOCI. .S'cv Bills a.mi Xotks, \'I. LEAVE TO DEFEND. Sec Bills .\.vn X'iti:.-;, X ; Practice, II (cO. ^ IIBEL. Pleading— /)i-/V(/c.' Vnder Statute — "Cases I' 'here Special Da))ui^es lire Claimed " — .■llle}:;ati \ic. (.\1.), c. J,^, provided that, ■' Xo person who has not complied witli tlie pro- vi.-ions of this .\ct, shall he entitled to the hetietii of any of the |»ro\is- ioiis of the " other .Act. Ilelil. I. 'i"h;it it was not necessary to i)lead compli.iiice with chapter j}, in order, uiioti the trial, to olitain the lienelit of ch;i|)ier 22. 2. That " case> where special damages are claimed,' iiKans not merely cl.iimed in the de- cl.iraton, Inn al-o by evidence at the trial. .V .Alleg.'iiions of loss of l)u>i- luss or allegations of general dam- I'ges only. Where s|)eci;il d;images are claimed, the names of the cus- tomers whose lnisines< has been lost must be set out. AsluUneu v. I'he .\faiiiliiha l-ree Press Co.. \'l. 57S. Attirmed, XX. S. C. R., 43. Criminal Information — Public (Weer.\ — i. A criminal information will not be gr.anted except in case of .1 libel on a person in authority, in re- spect of the duties |)er!aiiiing to his office. 2. Where the libel w.is direct- ed against .M., who was at the time .Altorney-tieneral, but alleged impro- per conduct uiion his part when he was a Judge, an information w.as re- ff.sed. .V The applicant for a crim- it:;il information must rely wholly upon the Court for redress, and must ci iiie there entirely free from blame. 4. Where there is a foundation for a libel, though it fall far short of justi- i"ic;uion, an inform:ition will not be granted. A'c.i,'. v. Biiigs. II, iS Compliance with Statute After Action Brought _ Security for Casts.] — .\ statute pro\ided that de- fendants in actions of libel might, un- der certain circumstances, obtain se- curity for costs. Another clause pro- vided that no )ierson who had not cfMiiplied witii the provisions ui this statute (as to registration, etc.), should be entitled to the benefit of it. Held, that conipli.ince with the pro\ision of the statute after action l)rought did not entitle the defendant tii.\iil,-i-iil hy 'J'lu'iii — luiir Ci'iiniiriit — liislitiiiitiiiii — Cmiisrs Uftii to ridiiiti/'t at y'n'c//. I— Wlnili cr an alk-Ki'il I'lul lia* the iiuaiim^ simtiIumI to it is a <|iu.s;i'in for the jiir\, ami if tin- (|iii'sti(iii i>- not cdii- siiliifd liy till' jury, a luw trial will be ordered. A writer may imt eliarm- a pnlilie man with nii>eoiiduet or inipule dis- hf.nesl niotiv(> lo him. and then, un- der a plea nf fair eomnient. lirniK ex- trin>ie i\ide!ioe to >!)o\\ liial the charne .'r i;r.piitalion i'- irne; imt if tin writer weri' eonnnentinjr on the nuhlie manV |ini)lie acts or condnet. he may i)rove the facts on which he hasid his connnenl. and if the proof of these fact^ satisfied the jury that the inferences the defeiulant lias drawn are not unfair or malicioii-, tluii they are eiuitled to say thai they an fair comment and not liln.'!lon>. (Taylor. C. }.. iliihltiiiitc) . Where theiv is on the record a l>!e;i of jiisliticition. the plainiit'f may. if he chouses in tlu' tirsi in- s'.ai.ce. meit the jnstilication. or he may leave such |)roof until the reply. lie cannot, however, diviile liis proof, calling soiue e\idence to mtel the jus- lilication in the fir-t instance. :ind r.iore afierwanls in replv. Murtiii V. /»•«•■• I'rcss. VIII. V). .\Hirined, N.XI. S. C. K.. 51S. .V,T I'l.K.xnixd. III. Embarrassing- Plea -- Jiist(tiiti t it'll. \ — To a couiU for libel the de- fendants ideaded. as a second jilea in elTcc!. tliii liefore and at tin time of the pnhlication of the alleged lihel. great public interest was fell in the subject matter thereof, that it w;is iintcli discussed in lu uspai)ers. that the defemlatUs were )>roprietors of a public newspaper, .'ind the words ciMnpl.'iined of were part of an edi- t(-rial article and were fair comiuent (in the said matters of iireai i)ul)lic iiUerest. and were published hoihi fidr and withont lualice. I'pon an application to strike out this plea as embarr;issinp; — //(■/(/. that the |)lea was not eiuhar- rassing. and luiRJU be i)li.'a(Kd alonp \Mlli the general issue. Miirliii \ lite Miiititnlui I'rf,' I'n'ss Co.. \ || 413. LICENSE. License to Take Possession iir I irfi'iidant's liontis it in I'liiiiiliii s (>{-uiii>ii II,' Si'iniiltl /'(• liir^ifiihlr nf iarryiiif; ,111 /«'i/.v;;i.'.«.f — // Of'inioii l( riiii'd lidiiii I'iilr. till' Court Ciiiin ; A'cviVtv' // — .//'/'('<;/ from /nn/;/!;,.* oi Triiil Jiitl.i^,- ,111 CoHtUil,nii I:: ul 1 ).■(•(• - 'oiiit l.ial>iiity.\ — The defend- ani I-"., being iudebie.i to the pl.nii- lilTs, had given the;n a license nr power contained in an agreement tin tier seal, which pro\ idi-d that if he ,ii aiiy lime in the opinion of the plain tiifs. or either of ihein. shonlil In' c, nie incap.ilile of attending in h - business, the plaintilTs might take |)ossession of his slock-in-trade and ■-ell it in pa\nui:t of his iiidebtednes> io tlum. I'laintifTs afterwards having fonn ed such opinion hoihi fide, as the Judge at the tri:d found, seized the stock-in-trade of 1". and placed ::ii agent in charge, who emplo>ed !•' a- a substitute and left iiiju for a f i w days in apparently sidv possession. On ;itteinpting aflerw.irds tn ri'siinu aciii;il possessi'iii, the plaiiuiffs were prevented by V. from doing so, niui five days |;iter I", made an assii;ii- i.unt to his co-defendant I>. for !li' I benefit of his creditors. .\n em I pli yee of H. then took possession of ; the stock ;ind the plaiutitTs rep!e\ii 1 ! it- The defend.ants pleaded joint'i\. denying the taking of the goods :i- alleged and claiming them as the r jnopirty. //./(/. 1. 'I'hat the evidence showed ;i joint cotnersion or t.aking. and it the iilainittTs were entitled to snccecj in llieir action against I", they wvr. i'|ii:illy entitled ;is against B. J. Tl),i' if the i)l;iintitTs h;i(l really, if. g'O'l f.'iiih. come to the conclusion that b was iiu-aiiable of atteiuling to his business at the time when the .seizure was made, as the Judge at the trial 444 LIF'^ ESTATES. 440 a iig form- '. as tlif i-izid till' )lai-(.'(l all vi'tl l'". a> fiw iintl. rt'-uiiii iff- wfvi' 1. niul tnr tlli Aii ciii-_ -ion lit K'l)!i.'vii.'tly I'litcrtaiiRMl by tlic |r,:nlilTs (ir ^iilVk-ii'iiily fuiiiulcil. ami ai' ;lur JmlKf on iiu'rely roadiiiij tlu' c\m1iiici' iiiixlit cMiir to a ditti'ri.'iit iniihi^ioii, yui till' Court. toUowinm liu |)riiici|)lt's laid down in 77;,' (iUut- ttil'iiiitii, I V. !).. .It p. j^K. and Hall i> .../.... . \ l^ r.^ ..1.1 > .M'liriiu'i I 10. /(i/,/ srt' I'owKK^; i,.\Niii.(iit(l to cut triO!. into i-ordwood Ii,,^ not at cuniiiion l;iw a lien for liis wistri'S. J. If till- workntaii. liowcviT. ■Mitracts to li.iul a- will a^ i-ut tlic 1 n,id. hi' may liave a lien for tin- inniaRe. 3. .\ coiiunon law lien will :■■ lo>t hy tile >ale of tlie artn-le. Mc- ''iliiin V. liyrrs. ill. .^fii. kiversed. X\'.. S. ('. R.. \')\. :■ ill.to lloMK.^IK.Mi; MK( ll.Wll'.s' I.IKN ; .MoKTi;.\t;E.S. //./(/. that till'. iii>triiiiunt was millier a reeeiiU note, nor a hire re- iiijit. nor an order for challeis witli- in the ineaiiinjf of The Lien Notes \ct, K. .S. .M., e. H/. s. _'. and that an I- (lor>fe of the note wa.s entitled to ilie horse as aK.ainsi an innoieiit pur- ehaser for value. Sriiihli' — The .ahive mentioned s;aiiite does not in.iUe all reieipt iiote.'». hire recti])is and or(ler> for iliatteK iiienlioiiid in it. except tlio^' i;iken for iii.iniif.ietiired ^!;ood^ liav- ji.g the maiuifactnrirV name or some o'.lur di>liiii;iii-liiiiK name painted or I rinted lluieoii. iinalid and void as against ])ureliasers in (jood faith. A statute provided that eert.iin conditional sale ayrev lueiit should he \\ till- iiui'stiiuiil-- li.iviiig liifii uiipriMlitctivi' and ritli/i-d at a loss — lli'lil, that imdiT -luli i-iri-nin- stJ'UCi's ilif priiiniilf adiipiril in In re fuirl of L lustirtirlii's I rusls. J4 C'h. I>. (t4,\. dm> iic't a|>|il>, Ixit tin- true inuu'ipk- of a|)pnrtic>ninciil is that lani di>\vn in C'n.r v. Cox, L. R. 8 M(|. .?4,?, vi/.. that nrithiT the ten- ant fur \'\(v nor the reMiainder-nian is to suiter niure los^ in piopiiniiin to liis e-late and interi'^t tlian the otlier sutTer-. and in aorindance with tliis rule a ealcnlaiion sin mid \k- made 111 what iirimipal iiuested at tile date frmn wlncli intere>t waN to nni. at d per oiiit. per ainimn. would aipi'unt, with interest, to the >nni acinally reali/ed. and then liie dilt'er- eme hetwteii tiiis principal and the amount realized should H" '" ''i*^" tenant for life, and tlie rest to the re- mainder-m;in. The tenant for life cannot he compensated for the loss of income, unless there is a fund out of wdiich ^uch compensation can he given iMi'orc v. Jolnisoii. .?,? W. i^ 'I'he interest realized on one of the securities exceeded (> per cent., hui on otliers it was less. //(•/(/. that t!ie Master was riRht in refnsinii to allow the witlow more than 6 jier cem. on all the securities; also, that the tenant for life may be entitled to or allowed, hy way of in- come, money which never actually came into the hands of the executors as profits or interest, when the secur- ities of the estate are realized at a loss. Held, also, that it was projier that the Master should not charge the tenant for life with occupation rem, aIthonfi;h she had lived u))on lands of till estate for a number of years, he- cause on the takinp of the accounts before him, no such charge was s( ught to be eslablislied liy evidence, and it appeared tliat during a large portion of the time of her residence oil the land her second husband was the real occupant and tenant. Miller V. Pahl. X, 97. LIMITATION OF ACTIONS. I. ("oNSTKll riON of STATUTKS, II. .\(iiue \va< di i-iiii-d in fav.iT of the iilaintitTs. MiUiitoha M'Ttj^ai^c & Inicstincnt Co. v, Daly. X. 4-'5. Covenant to Pny Under Seal _ i\lUitci\il Xolrs luii)\-(l.\ — A oon- trai-t being under seal, and showing an intention to enter into an agrec- iiuiit to pay the purchase money of at; enijine. the plaintilTs' right or ac- tion for the money would not he bar- red until the expiration of ten years fri'ni the time it tirs: accrued, not- withstanding that the remedy on the notes was barred. U'dtcroii.'i liiijiiitc Works Co. V. Wilson. XI. 2X7. Mortgagoi' and Mortgagee — /?;c/'' to Proci-ids of Tax Salr — !■• yi-rlosurr — .■lssrss)ni'nt .let.] — Thi- surplus proceeds of land sold for Municipal taxes in iS.SS paid to the irt.isiirer in November. iSyo, were cl.iinu'd in April, !?q6. by the holder ' t' a mortgage on the land, and also liy the assignee of the ecpiity of re- dem|)tion. Judgment agaui^t the moit);agiir bad been obtained upon the co\eiiant contained in the niort- KagJ and execution placed in the slierifT's liaiuU. The h>nrc, and had afterwartU renewed the execution is- -ued Ml the suit upon the cnxenaiit. It was mnteiuKd by the .'(■••'ignec of tlu eipiily of redemptit'ii that all I'glits under the mortgage were barr- ed by The Keal i'ropi-rty Limitation .\ct, R. .S. .\i.. c. S<). s. 4. as niore than ten years had elapsed from the lime when the princijial moiuy se- cured by the ni'>rtgage fell due. also that the renewal of the execution opeiu-d up tlu- foreclosure, and that the fonclosine .-iclioii did not iiiter- i'lre with the ninmng nf :he >tatu;i- in his la\or. //(•/(/, that at the time of tlu- ap- plication to the district registrar tlu- liolder of the ninrtgage had not lo>t his right ti> recover the land ;i.s against the holder of the e<|uity of re- duupiii'ii or to continue stu-cessfully 'lie suit for such recovery which was .uiuling when the money in (luestion n;is paid to the mtinicipal treasurer. ■It'll that conse(|Uetiily lu- was stili eii- litled to >tion. QiKcrc — Whether section 104 of The .\ssessnH'ni .\ct. as ameiuled by 5i Vic, c. Jf). s. S, gi\ing the right to apply for the ninncy to the iiersiMi who, at the expiration nf the tinte I'or redemption from the tax sa.le, lull! an incmnhraiu-e next after the defendant tirst return- ed from pans beyond the seas after tlie arcruinp of the said causes of ac- tion." Rejoinder. " tj-.at the said cause of action accrued to the plain- tiff at the City of Buffalo, and. at that time, and for a long time there- ."fter. both tlie plaintiff and defend- jiiit were permanent residents of the said city in the State of New York, one of tlie I'nited States of America, beyond the seas, within the meaning of the statute in that ease in.ade and provided: and thai ihe plaintiff is still a resident beyond tlie seas, as aforc- s.iid. ;iiid tlic defendant avers that the saiil cause of action did not accrue witliin six years befiire this suit." Demrrrer. " that the rejoinder is Iwd in substance. Allowed. Kasson v. Hollcv. I. 1. IV. .\( XXOWr.EDGMF.NT — XeW ProM- isK — l^'RT Payment. Acknowledgment of Debt ] The defendant on 241)1 March. 1888. gave an order for a binder, and agreed to pay $150 for it. giving two promissory notes of $75 each, the last of which fell due on ist January. 1891. it was provided, both in the order and in the notes, that the property in the machine was not to pass tu the defendant until paymeni of the [incc in full, and that on default in pay- meiit of either note the vendor .-hnuid have the right to take possession of and sell the machine, the notes pro- viding as follows: "The proceeds thereof to be applied on the amount uf.paid of the purchase price." On default in payment of the tirst note the vendors re-iook the macliiiR', sold it, and realized about enough to pay the tirst note. The notes were afterwards indors- ed to the plaintiffs, and in iSijj they employed an agent to collect the .iiiiiiunt of both. The agent wrote defendant a letter, demanding jiay- iiien, to which tiie defendant wrote in reply that the vendors had sold the machine for $70 or $75 before the notes came due, and continued: "I cannot see that I owe the linn f(rr .iiiyiliiiiti' but the last note and iiiier- e>t on it," Plaintiffs entered suit on the la^t iK.te in i8y8. That the acknowledgment coiiiain- ed in tlefendant's letter 10 the col- lection agent warranted the infer- ence of a promise to pay and \va.< sufficient, under 9 Geo. I\', c. 14. ii> take the case out of the Stamti of Limitations, although it w.i- made to an agent of ilie plaintiffs aiul not to the original creditors. Tlic John Watson Manufacturing Co. -x. S,ini[^lc. XII. ,]7:i. New Promise — Xo Cansidcni- Hon.] — ■ Ouuvc — As to the effect nji- on the Statute of Limitations <•( :i new promise for which there was ro consitleration. St'arhani v. Carlcx. MIL 246. Part Payment — Sczcral i'rum- issory Xotcs.] — W'liere a creditor holds two or more promissory nuie? made by the same debtor, a payment made generally on account has ;iie effect of preventing the Statute ni Limitations from running in respect of the whole indeljtedness. Taylor V. Foster, 17,2 Mass. 30. followe! Burn V. Boulton, 2 C. B. 476, Cdin- m 453 LOCAL OPTION. 454 le order iperty in s til the he price in pay- if ,-hi'uiU issiun of )tes pro- proceeds ■ amount the first machiiii;. lUHlgh to s iiidors- iS()3 they lUect the nit wrote ling pay- nt wrote d sold the ('fore the uied : " I linn fi'!' and iiiuT- tlK la.-t t contain- the o.l- the infer- and was V, c. 14. le Statute it wa- iniitfs and rs. ^ 77/c' \iig Co. -v. \liisidcrd- cffect up- lions of a re was I'O |\-. Corlcx. ral Prom- |a creditor jsory notes la payiiiont It has ;iie itatiito "1 I in respect followe.!. 476. C-r.i- iiLiiied on. Aslidoii'n v. ^.oiitgom- i-n, \'ni, 520. Part Payment — By Assignee for Benefit of Creditors.] — On the application of a jtidgnient credifcjr for leave to issue execution upon a jiidgnient recovered more tiian ten years before — Held, following Harlock v. Ash- hcrry, 19 Ch. 1). 539, that a payment to the plaintitY by an assignee in trust for creditors of the judgment debtor iii.der a deed containing the usual provisions made before tlie date of the judgment was not sufficient to take tile case out of the statute, sec- tion 24 of The Real Property Limi- tation Act. R. S. M.. c. 89. a'lthuugh ■iucii payment was made within ten ytars before tlie application, and that leave to issue execution upon such ■'.'.diiment should be refused. Mc- :.,ii:ie V. l-'ieleher, XI. 540. \'. 01'I:RATI0.\ .\.Ni> luiF.eT. Family in Possession — IVho Jin- 11/. I — The plaintitfs claimed title itngtli of possession held by their : 'itlier since 18(13. ;"'d '>>' themselves -;;iie' 1880. but their father. A.T.. had i:\((l on the land all that time, and ianiied and occupied it in the same \'. :iv as aiiv iitlier head of a familv ■-.Id. .'/,•/(/. that on the evidence. .\. T. .- the person wdio had acc[uireel the : 'ir by pf)ssession under the Statute 'i' Limitations, and as he had not i- 'iveyed his title to the plaintiffs. '1! was not a jiarty to the suit, the : i must be dismissed. riie defendant liad obtained a pat- iir from the Crown for the land in i '1, but it appcareu that the land v..i> not then vested in the Crown. !';.\ing been granted liy the Hudson's I'ly Company in fee simple many v'lrs before to the defendant's i;.'lier. Held, tiiat the er.istencc of such I. ■ tilt would not have prevented re- ■ ' •' being granted if .A. T. had hi' night the suit, and that the defend- ant might have been ordered to con- vev to him. Tenif'leton v. Stezvart. IX, 4«7. See also Bills .\nii Notes, III. Sec also Moktgaces, VI. LIQUORS AND LIQUOR LICENSES. See Into.xicati.vg Liquors. LIVERY STABLE KEEPER. Detention for Board.] — In an ac- ti(jn of replevin for the detention of horses the defeiidam avowed for money due for board of the horses. The plaintiff pleaded tli.it " at the time of the said detention the defend- ants had not posted uji in the office and in two other places in their said stable a cojiy of the Act of the Legis- lature of the Province of .Manitoba, passed in the 47tli year of Her Majes- ty's reign, chaptered 15." Jleld. im demurrer, that the plea was bad (i) because, C. S. .\I.. c, 36. s. 9, not being incorporated with 47 \'ic.. c. 15. the lien given by the lat- ter .\ct dues not depend upon the pcsting up of the Act; (J) and m an\- event the .Act does not retpiire the cojiies to lie posted up when the good- are detained, but only when they are brdught to the hotel. Held. a'so. on exceptions to the avowry that it was unnecessary to al- lege the posting up of the notices. I'lidley V. Henderson, III. 472. LOCAL OPTION. See In'toxr"-ating Liouor.s. 455 lixALICIOUS PROSECUTION. 456 \h'-:'- LOTTERIES. Disposing of Property by a Mode of Chance.] —The dcfcndaiU was convicted before a P. M. of an ofit'ence under R. S. C. c. 159, s. 2, wliich prohibits the " selling or of- fering for sale of any lot, card, ticket or other means or device for selling or otherwise disposing of anj- proper- ty, real or personal, by lois, tickets or any mode of chance whatsoever." His modus o['crandi was as fol- lows : He held a kind of concert in the street, and having gathered an audience he proceeded to sell boxes of what he called '" Parker's Pacific Pens." Before selling the pens, he placed in an empty box too envelopes, each containing a $1 bill, ten en- velopes with a $.T bill in each, five envelopes with a $10 bill in each, and one envelope with a $50 bill, making altogether $250 in 1 16 envelopes. He also placed in the box 116 envelopes containing only blank pieces of pa- per. Every person paying $1 for one box of jiens w;is entitled to draw one envelope, and persons paying $5 for a box of j'cns could draw eight envelopes; hut he would not lake more than $5 from any one person. If the $50 bill was drawn before two- tliirds of the pens were sold, he would put another $30 bill in the en- velo]ie and fifty envelopes with blank papers. He said he did not sell the envelopes; that he would not take $_'0 for one of tlicni ; but that he sold the pens and distributed the n.oney to advertise the pens. Held, following A'(',!,'. V. Freeman. 18 O. R. 5-'4, that the conviction was right, /v'l'.s'. V. Ihidds. 4 O. R. .wo. and A'lX v. Jainiesoii. 7 O. R. 149, distinguished. Reg. v. Parker, IX, J03, I' I ( MALICIOUS PROSECUTION. Reasonable and Probable Cause — Iiidireet Mati'i'e — .Vi' Criminal Charge Laid — Proseeiititui on Ad- vice of Counsel or ^[agistrate — .1/1,5- take in Law or Fact.] — .'\ child hav- ing strayed and come into the house of the plaintiff, the defendant, her guardian, applied for the child, but was refused. Defendant then went to a magistrate for " an order for the delivery of the child." The magis- trate informed defendant that he had no power to give such an order, and, after consultation with defendant, is- sued a sunuiions to plaintiff, alleging that the piaintiff " did detain one H. B. with intent to deprive the said .\. P. S. of i)ossession of the said H. B.. contrary to the form of the statute," etc. Plaintiff was commited for trial, indicted and accpiitted. .\fter ver- dict for plaintiff, in an action fur irialicious prosecution and upon a nio- tion for non-snit or new trial — Held, 1 (Bain, J., dubilante). That the action lay, although no criminal charge had been sufficiently alleged in the information. 2. If a party lays all the facts of his case fairly be tore counsel, and acts bona fide upon the opini(Ui given by that counsel, he is not liable to an action. ,v .Vdvi-iiii; with a magistrate is a circumst.-uico onlj- for the consideration of the jury in deciding ihe (luestion of malice. 4. In considering the cpiestion of rea- sonable and probnlile catise, a defend- ant may be protected although he was mistaken upon a matter of fact, if his mistaken belief was honest and bona fide, but not upon a matter of law. 3. Proceedings not with a view to the punishment of an abductor, but by means thereof to regain pos- session of the child, exhibit a maliei- tius motive. l^e.v. v. Stez>.iar>. \l. Reasonable and Probable Cause — Judge or Jury — Indirect Motive.] — Where the facts are distinct and un- contradicted, and there is no infer- ence of fact, the question of reason- able and probable cause is one wholly of law. But where any fact or in- ference of fact is involved, the (pies- tion must be determined by the jury under proper direction from the Judge. Opinion of counsel will n 't |H-oteet from an action for malici"in ])rosecution unless the party uses rea- sonable care to ascert.iin the facts and lays them before counsel. Dam- ages reduced from $,3,000 to $500. no 467 MASTER'S OFFICE. 468 express malice having been proved, viry little, if any. dainage to reputa- tion having been sustained and the plaintiff's arrest having lasted hut a few hours. Wilson v. Tlw City of Winnipeg, IV. 193. Indirect Motive.]— Evidence that a prosecution was instituted in order to save the trouble and expense of a law suit in a Court of civil jurisdic- tion, tends to show an " indirect mo- tive " and lack of good faith. Miller v. Tlic Manitoba Lumber i'; Fuel Co.. VI. 4«7. MANDAMUS. To Public Officers — Pelirery »/> of Papers — Peremptory or Alterna- tive.] — Mandamus lies to compel the di livery of papers by a public officer to his successor. Unless the right of the relator to the papers is clear, a peremptory niandainns will not be (>rdered. but only an alternative writ. h'ig. e.x: rcl. I'acaud v. Ihibord. 111. To County Judge — To Con.Kider I'alidity of Ballots.] — -A mandamu.< will not lie to a Cminty Judge to ci impel him to consider the v.ilidity of IwUot papers. Reg. v. I'rud'lionune. re Xortli Dufferin lUeelion Case. \\. 259- See Mink ii'Ai, Coktokation. VII. .V,(' Shkkiik, III. MARRIAGE, BREACH OF PROMISE OF. See BuEAiii oi- M.xrkiage Promise. MARRIED WOMEN. See HusB.\Nn and Wife. MASTER'S OFFICE. Jurisdiction to Set Aside Agree- ment.] — In a suit between prirjipai and agent, upon the foiling of an agreement by which the agent was to receive a commission of Jo per cent. on all sales of real estate, the decree directed the Master to lake certain accounts, and ordered the agent to pay into Court any balauce fnund due by him, " les> the defendant's coni- mi>sion nf _>o per cent." Held, that the Master had no juris- diction to set aside tiie agreement. / 'ivian V. Scoblc, I, 125. Opening Up Reference After Same Closed^-.ldniissibility of Pur- tlier lividenee — Surprise — Piseov- ery of Sew Eridenee — Ditigenee — Corroboratiz'e P.xidence — New Trial. \ — The jilaintiffs tiled a bill to forechise a mortgage, by which in- terest was reserved at the rate of 9 per cent, per annum. The defend- ants allowed the bill U\ be taken pro eonfesso. but attended on the taking of accounts in the .Master's office. The morgiage was long overdue. By the .Master's report, interest was al- lowed at the rate of 9 per cent., after tin |irincii)al money became due. The tlefendaiu appealed, on the ground lliat the plaintffs were entitled to 6 per cent, only, after the time when the jirincipal money became payable, and the jippeal was allowed. The i)laimiffs then presented ;i i)e- tilion to bave the decree \acaletl and for leave to amend their bill, on the grounds of surprise and di>c<"ivery of new evidence. After the appeal was (lisp(>sed of. they discovered, among the pixpers in their .solicitor's oftice. a letter dated Jdth October. 1888. sign- ed by defendant. J. Ti. McL. (the mortii.'igor). in whir'i he agreed to pay interest on his mortgage '" at 9 per cent, per annum uniil the _'ist Oc- tober ne.xt. or so long as you allow the same to stand." The surprise was claimed to arise out ing the s.ame ; and the plainlilT was non-suited, f'ixon v. IViniiipci^ P.lcctric Street Railnuiy Co., XI, 5,28. See also Ckimi.n'.m. L.\w, VI; Ju.s- TiiF.s oi-- Till-. Peace; Public Schools. MECHANICS' LIEN. I. RKiiiT TO Lien. 11. PkocEiciJiNCis TO Perfect. III. Pkiokity. IV. Assign. ment of Lien, V. EKyOkCEMENT, I. Right to Lien. Materials — l)clivcry on Ground SiitHcieiit.l — Held, that a material- nian was not bound to show that liis materials were used in the buildinu; — delivery upon the ground for the pur- pose of being used was sufticieiit. Mc.irtluir v. Pczcar. III. 72. Material Not Used in Building,] — A material man has no lien unless the goods were sui)p!ied fcjr the pur- l)Ose of being used in the particular building upnn which he claims to have a lien, Sprague v, liesant, III, 5iy. .ind sec Mc.lrtlnir v. Dezear. ill, -2. Agreement for No Lien.] — //,/,/, 1. .\ sub-coiitractor is entitled to as- sert a mechanic's lien, even altlicjiigli the contract between the owner and original contractor provides that no workman should be entitled to any lien, .liilv V. IIulv Triiiitv CIturcli. il. -M8. Provisions in Contract Incon- sistent with Jjien— Extended Time for Payment — Refusal to Give Se- curity for Price as .Igrced L'l^on.] — When under a building contract the time for payment of the price of the work is ti.xeil at a date later than tli.a at which a bill could be filed to ei!- force a mechanics' lien, there is an implied agreement that no lien shall exist. But. if, by the contract, a pro- missory note or other security for the price of the work is to be given with- in the time for enforcing a mechan- ics' lien, the implied agreement !> waive the lien is conditional up'-'ii 465 MECHANICS' LIEN. the giving of the note or oilier secur- ity. Ritchie V. Grundy, Vll, 532. Provisions in Contract Incon- sistent with Lien — Contniclor to Ui>.'ii Property Upon Default in Pay- ment.] — A contract contained a provision tliat if tlie defendant >lioiild fail to i)ay the l)aiance of the price, $1,000. on cf)nii)letion of the building, the plaintiffs were " to hcconie the sole owners i^f the properly until the said $1,000 he paid," Held, that this was not inconsist- ent with a lien for that part of the contract price which was payable as tilt work i)rogressed. The plaintiffs having recovered only $110 by the suit, for whicli they iii:t;ln have sued in the County Court, and tHe defeiulam having disputed the whole claim throughout and rais- ed a number of untentiblc objections, tile Court allowed no costs to either party up to and including the decree. hut gave the defendant the costs of the re-hearing to he sct-olT against the plaintiffs' verdict. Brydon v. Lutes. IX, 463, Sub-Contractor — Draxi'hack of 5 1 I'er Cent. | — Under a building con- tract the projirietor (the City of Win- niiieg) was to pay 85 per cent, of the value (^f the work and materials a> the structure progressed: and the h;ilance of 15 iicr cent, upon the whole of the work being completed to the .'^.''.tisfaclion of the City, and accept- nnce of the work by the Corporation. The contractor failed to complete the work, having at that time received li.'iyment to the extent of 85 ]icr cent. Held, that a sub-contractor had no li'"i in respect of the 15 per cent, i>iring the progress of the work .."fiber contract was made between . '.• proprietor .and the contractor for •!tam extra work. In this contract '.iri; was an agreement for payment of 85 per cent, during the progress of the work, nothing was said with re- ference to the 15 per cent., but there was a general provision " that in all other respects said original contract shall not be varied, altered or chang- ed, but be and remain in full force and effect." Ili'ld. that the 15 per cent, was pay- able ui)on completion of the work, ami this having been completed was available to the sub-contractor. By the terms of the contract any mater- ials placed upon the ground were to bo considered in the possession of the City, and were to be considered in the progress estimates. MeArtliur v. neiear. III, 72. II. ProceeiiIngs to Perfect. Materials Provided at Various Times — Time for Registration. \ — Materials were supplied from time to lime as the building progressed, not under any contract, but as tluy were re((uired and ordered. J/eld. that each >ale was a separate transaction, and the subject of a sep- aiate registration. Ciiadwiek v. llitnter, 1. 39. Oath — Statement of Time — Com- ineneeinent nf Proceedings.] — A com- missioner to administer oaths ha> no power to take an affidavit verifying a statement of claim to be filed. The .statement of claim read : " The time or jieriod within which the same was to be done or furnished. Between the 3rd day 8 IJi-ld, tliai after this second slatiite tlio itiiiis need not appear in the statement. The Act 47 Vic, c 14, is pr()>pecli\e as well as retrospective. The work (the building of a house) was coin])leted on the i.Stli August, with the exception of puttinfi; up an iron crestiuR, which hy the contract was to he placed on the verandah. Tlie cresting was put upon the to|) of the house on the 2f)th Octoher, the plaintiff asserting as a reason for the delay that he had no money to pay for the cresting, the defendant liav- ing refused to ])ay iiin;. The state- nnnt of claim was not filed within thirty da\s from the iiSth August, hut w;is within that period after the 2(jth Octoher. There was no evidence of aiiy \:iriation of the contract as to the i)Iace where the cresting was to lie idaced, nor of its acceptance by any ;'.ct of the defendant. Ilrhl (Killam. J., dissenting), that the statement was filed within thirty days from the completion of the work. The bill was amended after the l.'ipse of the time given 'or filing a bill. Ifcld. that the bill was within the prescribedtime.it having as originally filed been sufficient for asserting the lien, and liie atnendmcnt having been occasioned only by the defendant's claim for cross relief in consecpiencc of the work not liaving been com- pleted within the contract time, fr- Zi'iii V. Bi-yiton, IV, 10. Campbell, V, Sec also naz'idsflii v. 250. Statement of Time Within which Work was Done.] — The plaintiffs did work for defendant Jeffrey on a house which he was l)uilding upon land purchased from defendant Fish- er under a verbal agreement for sale. The price of the land was $6,000. of whch JefTrcy paid $10 on account; but he never made any further pay- ment, and Fisher afterwards took a release of any claim that Jeffrey might have on the land and paid the i.i.tter $50 for same. Held. Jhat the plaintiffs were en- titled to a lien or charge upon the in- terest or title of Jeffrey in the laixi as it stood before the release given to I'isher, but that such lien or ciKu\'o nmsl be subordinate to Fisher's ciann as unpaid vendor. Graham v. Wil- liams. 8 O. R. 479. followed. West V. lilkins, 14 C. L. T. so. distingui>h- ed. The lien as filed stated that the work was commenced on a crtain day, and that it was finished on or before a certain other day. Held, following 'I'ritax v. /'mh/i. 17 O. R. ,^56. and in view of clause (.';;() of section S of The Interpreta- tion Act, R. S. M., c. 78. that the statement sufficiently showed the time •>''!ii!: ii'ic'i til'' work \va^ done. riack V. Jeffrey. X, 514. Verbal Contract — Piling.] — \\ is no defence in an action for work done under a verbal contract that the con- tract or a statement of it was not filed in accordance with the statnie 48 Vic. c 33. s. 13. Daz'idson v. Campbell. V, 250. .S'l'c' also frwiii v. Beyiioit, IV, 10; Corporations, IX. III. Priority, Mortgage.] — /-/(■/(.'. a mcchanir-;' lien does not "exist unless and uii'i!" his statement is filed in the registry office; and the mere fact that the v.ork was done before the execution, by the owner of the land, of a mort- gage upon it will not give the nie- cl.anic priority as against the mort- gagee. Kiefell v. }[urray, II. 209. Assignee of Contract Price.] — An assignee of the contract price for the erection of a building is not entitled to the money as against the lien (pf a sub-contractor, unless the owner li:is in good faith bound himself to pav the assignee. Aiilv v. Hol\ Trinitx Chureli. II. 248. l^pon appeal — /-/(•/(/, an assignment hy the con- tractor of the contract money, made before the registration of a lien by ;i |:: 469 MERGER. 490 si-l)-contmotor. takes snoli lien. III. 193. priority over ,ir tlic decree made on the hearing. ;it plaintiffs were entitled to a per- i;al order against defendants Hunt- and Short. 2. Where lands arc out the jurisdiction, the Court cannot foct them otherwise than hy pro- ( (ling in personam, and cannot vrcfore enforce a mechanics' lien :-ale of land out of the jurisdic- n. Chadii'ick v. Hunter, I, 363. IV. A.s.si(;n.me.\t ok Lien. Affidavit. )_//,'/(/. r. .Assignee of I tliu MK'chanic is entitled to a lien, and j may make the affidavit ncces'-ary for | registration. Kelly v. MeKcuzie. I, \'. K.VroRCEMENT. Municipal Buildings.] — Held. t.l'.al the crity Hall in Winnipeg miglil I' sold unikr exccutinn against the (■.>•. and was therefore subject to -..Ic in pursuance of the Mechanics' Lien Act. The land upon which the hall was erected was granted to the (.:iy hy a deed, which ])r<)\ ided that ii was to he used only for the purpose .i|' the erection thereon of a niarkei li.ilding and for other public i)ur- |H>es, and that if the City should ti^e ;lii- land for any other puriioses and r.-i > than those comiccted with the li\:lilic purposes and uses of the Cor- p. ration, the land should revert to the grantors, their heirs and assigns. Held, that there being estate in the lands vested in the City, the plaintiff was entitled to a lien to the extent of Hub est;ite and to a sale of it. Me- .Ivthiir V. Pen'cir, III. 72. Public School Property.] — Land r|.on which a public school is erected i> liable to he sold. Moore v. Pro- u-slaiit Seliool District of Bradley, ^' 49. Land Out of Jurisdiction — Pcr- s ihil Remedy Only.] — Held, i. Vary- Completion of Work — f:ridenee.] — I. When the completion of the work is alleged as of a particular tlay which is a considerable time after the hulk of the work was performed, clear and satisfactory evidence must he given to enable the Court to find tl-'j date. 2. Upon the evidence held that the d^te was not sufTicieiitly proved. L'pon re-hearing — Held, that the evidence showed th.at the main work was not comi)let- crl before the date alleged, and that although some levelling of the earth around the building was done upon the two succeeding days, the plain- tiff was emitled to his lien. 3. In a suit by a sub-contractor, it is not necessary at the hearing to prove that there is anything due hy the owner to the contractor. That is a matter for the Master's office. .Uc- Lennan v. The City of irinnipe^. HI. 474- Amendment of Bill After Time for Filmg Elapsed. |— Bill alleged a C( ntract with defendant C. for the performance of certain work in the erection of a building iii)on land of C. By amendment made after the time fi r filing the bill bacl elapsed, the iilaintiffs alleged that their con- tract was with the defendants K. & McD.. who had contracted with C. for the erection of the whole huild- ir.g, thus changing their position from contractors to sub-contractors. No new certificate of lis pendens was filed. //('/(/. that the plaintiff could not rely upon the original bill and certi- ficate of lis pendens. Davidson v. (.'anipbell, V, 250. MERGER. Note and Mortgage.] — O'N., at the time of giving his separate note, executed a mortgage upon real estate, conditioned to he void upon payment of the note and of any renewal there- of. Held, that the plaintiff's remedy upon the original note and indebted- mr^ I ir'>\: '!;;; I'Hi: 471 ncss liad not mcrjjcd. Munnic v. (^ .w(7, I. J45. Intention to Keep Alive — .1/1.5 hthc — h'lli'iisr of 'ii/in'/v of l\\ il nil lo- tion. \ — Wlien tl.i- owiiL-r of ;in es- tate in fee paj^ nf a cliarf^c, or tlie owner of a charge :.c(|iiirrs the (.(iiiity of re(lenii)tion. tlie i^siih is tliat tlie cliarge merges and lets in an\ sul>- se(|uent inemnhranie, unless an in- tention to keep the eliarp;e alive is ex- pri'ssi'd in some way. and the onus of proving such intention rests on the l)any contentUng tli.il tliere has licen no merger. 'I'he |)iaintin's licld a morttjaue on certain lands for a lar^e amount, and arranged with the inorigrigor to take a (|uit claim deed from him. and to release him from all liability on the mortgage, acting in the belief that they Would thus ac(|uirc the whole estate free of inctnnhr.'iiices. Their solicitor, however, having overlooked a registered judgment in favor of the (hfendant. the latter claimed th.il there was a merger, and that hi> jurlgment was now a fir-.t lien on the lands. The plaintiffs tiled a hill to enforce the execution of a release of this iudgnient. Ifcid, that a merger had taken place, and the relief asked for could not he granted, hut that the i)laintitYs were entitled, on the gro\uid of niis- take. to a decree declaring that the amount due under their mortgage should he a charge on the lanil in priority of the defendant's registered judgment. Draii aiiil Cluiflrr of St. John's Cuthcdral v. MdC.hilnir. IX. MISTAKE. 472 MINISTERS OF THE CROWN. Trespass.] — Persons claiming ex- emption from the law mi'.st show some reason or authority leaving no doubt upon the subject. And where two persons who were Provincial Ministers of the Crown directed a trespass upon lands of the l")ominion and showed no exemption, an injunc- tion issued against them. Attorney- General V. Ryan, V^ 81. MISREPRESENTATION. " Clean" Farm.] — A landlord had rei)resented that the farm di- mi.--ed was " clean." I; was not so; but the tenant took and kept \)u^- session. and sued for and obiauicd damages for the misre])re>eiitatiiin. Held, that the lamllord was en- titled to the rent. Johnstone v. Hall \. 161. See I-'k.m'h. See C'oNTR.MTj V. MISTAKE. Appeal Struck Out by Mistake.] — \\ here the C'oun had struck oui an .ippeal under a misapprehension, tlic ri'.le dismissing it was rescinded as having been issued through in.ul- \ertance. Sfarham v. Carlew \ 11. 611. Money Paid in Mistake.]— A'cccr- lit'(l. Coiifrili'rution Life .Issiui- iiih'ii V. Mcriihiiits' Hank of Caiuuhi. X. 67. Sn' (tlso Appeal, \'I ; Contrah, 1\'; F.snu'pKi-, I; Jri»(;MEM>, X ; .Mei<(.ku; N'i:\v Tkial; rKMTUi:, II (iij. X; Specific I'ekfmkm- ance; Wills, I. MOKTQAGES. 1. AsSKiN MI.N r.s. II. Not UK TO MliKTGAGEE. III. KKJUT.S A.NIi I.IAltlLITIES. 1\'. Sale itv Ohkt. \'. I'liwKK III- Sale. \'I. Satisfaction'. \ II. rLEA|p|.\(i .\.\li PkA'TICE. I. .VSSIC.NMKNTS, Liability of Assignor — Rc-.ls- sii^innrnt.] — On an assignnicnt nl a iii'Ttjiafjc, tiic inortpagets covLMiaiited til pay the assignee all moneys se- cured by tiie inorlgage. according to its terms, in tiie event of default lie- ing made hy tiic mortgagors. In a suit for sale the original mortgagees were n^adc parties, and a jiersonal or- (kr was asked as against them. If eld, I. Tli.it no order could he made against the original mortgagees for immediate payment, hut only an order for i)aynient of any deficiency after a sale. 2. That the original ninrtgagees were entitled upon pay- ment forthwitli after decree of prin- cipal, interest, and the costs of an un- ili fended action at law against them upon their covenant, to l)e discharg- ed from further lia1)ility :' and to an a--ignment of the plaintiffs securi- ties uj)on payment of any costs he It iglit have against the other parties. I'aylor v. Slnirl^. II. 33. ■ iiul sec Real r.statc I^oan Co. v. }roIi\morHi. Ill, 116. Warranty of Title — Cinrnmit Ihiit Miirlmin,- .Issi^ncd is a (iood and i'lilid St\iirity — "Security," .l/ii/;i/(/^' Of.] — A covenant in an as- sigmnent of a mortgage of land that the mortgage is a good and valid se- curity doe> not mean that the mort- gagor had a goii a geninne 01 e duly ex- ectued hy the mortgagt • , and tiiat tiiere is nothing tn atfe^t its validity as a hinding coiur.ict hetween the mortgagor and mortg;igee for pay- mem of the deht assigned. .Meaning of the word ■"security" discussed. Miliicaii v. Ilciidcrsou. X, 50.^ II. .X'oTItl-; To .MoRTGMWE. Notice Tiirough Agent and At- torney.] — As t.-vcenirix ui the will of L., the plaintiffs' mother held ci.-rtain lands then valued at over $7000 in trust for the plaintiffs with power to sell hut not to ii'i rtgage the same. Wishing to borrow luoiiey on the land, a pre- tended sale was luade for the express- id eonsideration of $5,000 to M., who then raised Sj.ooo for the e.\ecutri.\ by mortgaging the land in the defend- ;uit Company, .and imnk'di.itcly re- coit\ eyed the l.md to the e.xeciurix for the nominal consideration (i\ $1.- 000. This scheme was earried out mainly by the plaintitT^' father, who swore at the trial th;it the agent of tile Company was aware f)f the plan ado])ted if he did not himself sucfrest it The plaintilTs" father ami mother then lived on the property, and had lived there ever since. Hi'ld. that the defendant'^ were af- fected thrfiugh their agent with no- tice of the fraud .and breach of trust coPMuitted. and that the nir)rtgage, to- get er with two sui)sefpient mort- gages taken from the executrix on the same lands, should be declared to be frn"dulent and void as against the plaintiffs. fFTT r 475 MORTGAGES. 47ii Qu(crc — W'lutlicr constructive no- tice slioiiitl nnt al>o be imputed to tile Cunipaiiy tlirouuli tlie solicitor, who would have detected the fraud if he had followed up the inquiries suKKC'^ted hy the amounts of the con- siderations expressed in the deeds and mortgage, antl hy the fact that M. did not take possession of the prf)<). Gralnun Urilisli Ctiihiiliaii Loan and inent Co.. \1 1, J44. v. flie Invest- m- III. KiCIirS ANIi ijAItll.ITIF.S OF I'aktie.s. Action by Mortgagee after Mala Fide Sale under Power. |_i. After selling mnrigaged lands under a pow- er of sale, the nmrtgagce may usually sue for any defR-iency in the nmrt- ga^e deht. 2. 15ut not where the sale is inatle for an improper purpose, as in the present case. A mortgagee sold under power of sale to his agent. Another agent, to wl-.om the first one conveyed the pro- perty, transferred il to a hoini fide ))in\ha>er for ;in .imouiit less than the mortgage deht. Held. T,. The case could not he re- garded as fMie in which the first sale was altogt'ther inojierative, and the last sale one under the power of sale for the power was exercised, although injproperly in the first sale (Killam. J., dissenting). /'(';■ Killam. J. — The mortgagee hav- ing put the property out of his hands, not in pursuance of a power, hut ini- jiropcrly, was unable to restore the mortgaged estate, and could not sue for the deficiency. Crottv v. Taylor. \ III, 158. Rents — U'ho Hn titled — i\fort- gof^ee or Garnishing Creditor of .ifortgagor?] — A garnishing credi- tor of the mortgagor is entitled as against the mortgagee to rent due in respect of a lease of the mortgaged premises made after the mortgage (in the statutory form) hy the mortgag- or. Green v. Cauehon, III, 248. Liability to Mortgagee of Pur- chaser of Equity of Redemption. | — .M. niortgagei! to .McK., who ,i, signed to the plamtitTs, covenaniuig tliat the money would be paid. The mortgagor conveyed to P., subject to the mortgage; the expressed consid- eration was $.1,500. which was llir an;ount agreed to be jiaid for tlie equity of redem|)tiou; there was no covenant by I', that he would pay ih- mortgage. 1'. afterwards made ji.iy meiits to the plaintilTs on accoiiiii of interest, and to obtain an extensiini of time for payment. L'pon a bill |n; foreclosure, and for a personal ord. r against M., McK. and P.— Held. I. No personal order cmid lie made against P. for want of priv- ity between him and the plaintiffs, j Nor as against .M. or .McK.. there be ing a Coiiiiilete remedy against tlkni at law. Hiiultbee v. .Shore di>icu>sei!. Real /'.state Loan Co. v. Moles'eortli III. 116. .//((/ see Taylor v. Sliar[^, II, ,^5 Moi-tgagee Buying at Tax Sale — .Iction on .leri'iuil — l\'enhi;\il hy .Mortgagee of Buildii:gs.\ — .After ,1 niortg.'igee liatl take:, possession un- der his mortgage, purchased the laiiil at tax sale and obtained a convey- ruice. and removed valuable buildini;- from the land, he obtained jiidgnieiit upon the covenant in the mortgage, L'pon a motion to slay proceedings on the ground that the judgment had been satisfied — Held, I. A mortgagee may purchase at tax sale and then resist redemp- tion. The effect of the purcha.'Je is the same as if he had obtained a fiiuil order of foreclosure. It does n,.t satisfy the covenant, but an action on the covenant would let in redcmpli'Mi 2. The removal by the mortgagee nf buildings does not prevent an action uj'on the covenant. Waste is a ni:it- ter of account. Miller v. McCuuig. VI. 539. Accounts — Alloiiwices to Mori gagce.] — A mortgagee cannot havi any allowance for his personal care or trouble in receiving rents. W . '4. \-- li I. 'i ■'■ ^m MORTUAOES. 478 UIrt'.' the property is at a (li>tanco, or wliero tlie circiimstanoes are sucli that tlic mortgagee wmild. if liiinself till' nwiier, (.•mpiDy a baililC or cul- 1(011 ir, an allowance may he made, hccliold Loan Co., v. McLean, IX, IS. Accounts _ nonus and Sfecial C'riiiinissidn — U'licii Alln-i^cd.] — Where, in the negotiations for a loan to he secured by a mortgage, the mortgagee stipulates for a honus or special commission, or other charge in consideration of advancing the money and in addition to the interot. he may retain it if he deducts the amount at the time from the loan and (iiily advances the balance, or in ca>e the ;tmi Invalid .Uii»7.i;'i)^'i'. |— .\ niort- Kiiiie was made in hrcach of trust, and the mortgagees had notice. The mortgagee had paid taxes on the umrtgaged projierties for a number of years, and had redeemed them from a s.ale for taxes. //('/(/, that they had no right to a liiii on the lands for the amount, l-aleke v, Seottish Iint^erial Insur- miee Co.. (1880) 34 Ch. D. 2.^4. and Leslie v. French. (i88,V) 2.? Ch. D. 55i. followed, Graliam v. British Ciiiiadian Loan & Investment Co.. X 11, 244. Accounts — Action for Against ''liiiiga,^ee — Costs.] — Plaintitf be- ing second mortgagee of certain pro- perty on which the defendants had the first mortgage, filed a bill to com- pel them to account for the surplus proceeds of the property which they had sold under their mortgage. De- fendants admitted a surplus of $28, and olTered to pay it ; but the plain- tiff, contending that the solicitor's costs of the >ale proceedings were cx- ces.si\e, refused to accept this. At the hearing of the cause a decree was made wiih a reference to the .Master to take an account, when tin- .Ma.stor reported that the surplus pay.ible by tiie defendants was $04.10, having taxed down the bill of solicitor's costs. The matter then came before the Court for the determin.iiion of the costs of the suit. //(•/(/. that the idaiiitit'f was liable for defendants' c^ts up to and in- cluding the hearing and decree, and that no subsequeiu costs should he allowed to either parly, Charles v. Jones. .^5 Ch. D. 544, followed, (iiles V. 'I'lie Hamilton I'rovident t'r Loan .Sceiety, X, 5O7. Action by Sfortgagor lor Dani- nge to Mortgaged Property.] — (loods subject lo mortgage were con- sumed by lire. Jii an action by the mortgagor .igiinst the wrong-doer — Held, thai the existence of the mcrigage was no defence to the ac- tion for the destruction of the wheat ( Killam. J., dissenting ). I'er Killam, J.~i. In the ah>ence of a redemise clause in the inorig;ige. 110 action could he bnutglu for the loss of the goods, whether it occur- red before or after the ex])iration of the time for redemption. 2. If tliere could be held to be an implied re- demise clause (as to whicii quu-rc). the plaintilf could only recover for the loss of enjoymeiU of the goods between their (iestruclion and the time fixed by the mortgage for pay- ment. Ho'.en V. Lee, IV. 177. Mortgage Repayable by an An- nuity — Ri'Jtt to Foreclosure. AL though I'oieer of Sale.\ — A mortgage contained a proviso for redemption as follows: " Provided this mortgage to be void upcd ostcrsibiy by an in- dependent person, but really on be- lialf of the luortgagee : a \esting or- der was issued, and a subsequent re- port made, finding a balance due by certain persons, .-^n api)!ication was made by these persons to set aside the sale and the subsequent proceed- ii-gs, but neither the assignee of the pi rcbascr nor the mortgagee \vere made parties to it. //('/(/. in the absence of some of ijie parties interested, the sale could not be formally set aside, but it, and all the siibsec|ueut proceedings, could be treated bv the Court as nullities, and. as all the parties concerned in the subsequent report and the fi. fa.'s is- sued thereon were before tlie Court, the proceedings should be set aside.' 'I'aylur v. Sharp, VIII, 163. Sale After Foreclosure — Varia- tion of Decree] — The Court has no I>ower to direct a sale of a mort- gaged property after foreclosure has been ordered without the consent of the defendant, altliough it be shown that the mortgaged premises are not worth the amount due under the ii'ortgage. Credit Ponder Pranco- Canadien v. Schiiltc, XI, 158, Sec L.VXDLORU AND TENANT^ I. V. Power of Sale. " Without any Notice "— Private Sale -cithoiit .Idz'crtiseiuent.] — A irortgage " provided that the Com- pany (the luortgagees) on default of payment for two months may, with- out any notice, enter upon and lease or sell the said lands." By statute 49 \'ic. (Man.), c. 42, s. 6, it was er acted that any mortgage contain- ing such words should be deemed to CI ntain the long form of words in the .\ct respecting Short Forms of In- denture (C. S. .M.. c. 61, 2nd sch.. 2iui (ol., No. 13), which ])rovided a nieih- od of sale involving the service of a written notice on the mortgagor. //(•/(/, that a sale without notice to tlie mortgagior could not be upheld. A power of sale permitted a sale " by public .auction or private con- tract." //('/(/, tiiat a private sale could he made witliout previous advertise- ment of it. Re Shore, VI, .305. Abortive Sale — Costs.] —- Held. that where a mortgagee had offered property for sale under a power of sale, and the sale proved abortive, lie was entitled to the costs, the attempt to sell liavmg been bona Hdc. Cam- er(>n v. Mellroy. I, 242. Negligence in Exercising — In- effective .-Idx'crtiscincnt — Improper 481 MORTGAGES. 482 I'hiiC of Sale] — The plaintiff claim- ol (ianiages for the ~.ak' of liis farm liy (k'fendants at aucti(jii under jiow- tTS of sale contained in two nioit- griRos. interest being in rrrcar. The [)Pi|)crty was near PoT,fied. and that neither the mortgagees nor ;iny person claiming Ihrnugh then' hail attempted 10 take )iosses-ion r\ the property until the year iS()j. The defendant relied on a sale under the power of sale in the ntortgage, which toik place in the year 1877, and claimed that he had in iSoi ac(|uired the property by ;in agreeiucnt of sale fr'>m the imi'chascr under the mortgage. 'ITie defcnd- .'int, in Jii;''\ 1802, took actual pos- session of the jiroperty, put a fence around ' and erected a dw'.lling up- on it. I here was no direct evidence of default in p.ayment of the mort- g.ige, but a notice of intention to ex- ercise the power of sa'e in it was ino- duced. dated 20th Xovend)er, 1876, "."his notice was in the usurd form. ;.nd liad indorsed ■ ii it .1 certiticate of service on !'ie plaintiff by ;i b.aililT, since deceased whose lianduriting was proved. The conveyance under the i)ower of -ah' was proved, dated ■ '■•ill Jime. 18-7 and ^ome entries showing that there had been a mort- gage sale were produced from a so- licitor's docket. The taxes on the lot since they were first levied in i88j, and up to the present titne, were paid by the dcfend.ant. and those through whom lie claimed. The plaintitY had V. U '■ '.'■ '\f.M:\ 488 MOBTGAGES. 484 r 'I hi ■ done iiotliing to assert his title, or his right of possession, from the time of tlic mortgage sale up to the issue of the writ of ejecuiieiu. Held, that uiuier tiie circumstances ll'.erc was sulTicieni evidence to prove default in payment of tiie mortgage in the absence r)f any e\idt.nce to tlie contrary, and tliat the service of the notice of stile and the s;de mider the power were sufficiently proved. Ihiglics V. Riuitlrdi^r, X, i,?. VII. Pi.i;.\i)iN(; .\Ni) !'k.\ctic'e. Parties _ Surety.]— \ surety for payment of a mortgage caimot lie n.ade a ptirty to a foreclosure bill, and the Court in such ;i case has no jurisdiction to mtike a personal order against him for payment. Real lis- laic J. (hill Co. \. M,)lcsz>.\irtli. Ill, IK). Parties — Hill by Sim'iror Only of Three Trustee Morti:,(i,iiees.] — On ;i bill for foreclosure tiled by the surxivor of three trustees, who were mi>rtgagees. but had no hencl'icial in- terest in the mortgage moneys — Held, on demurrer, that the repre- sentatives of the deceased joint mort- gagees were not necessary parties to the suit. Laiiihile v. MeLareii, \'I1I, Action Immediately After De- fault.] — //,■/(/. that mortgagees ma\' proceed in eciuity for a sale of the mortu.'iged property immediately af- ter default in payment, notwithstand- ing that their mortgage contains a power of sale which could not be ex- ercised until after the lapse of a named period. Allan v. The }[ani- toba c'V .\'"rth-Jl'estcrn Railway Co.. re Gray et al. Xo. i. XI. io6. Dispute Note — Poteer of Regis- trar to Take .leeounts ti7u'« Dispute Note Filed — Costs of Abortive Sale.] — Held, that the registrar has power to include in the plaimifT's account costs of an abortive sale, on issuing a decree after dispute note filed; but. in case of a contest, has no power to adjudicate on the weight of evidence, 'ihe proper course is to take a decre; with a reference to the Master. Cam- eron \. Mellroy. I. -'41. Decree Where Service by Publi- cation. | _ //(•/,/, where defendant i^ .-■erNed by publication, it is necessary to mo\e in Coitrt for a decree. In other cases where there is no defence, or where the answer admits the facts er.titling the ])laintilT to a decree, cir amounts to a disclaimer, and the de- fendants are sni juris, decrees niay is>ue on prrecipe. Maniti)ba 6" Xorth-]Vcst Loan Co. v. Harrison. II. 2i. Master's Office — Parties — Prior P.neuinbraiieer — Delay.] — In a mort- gage suit the usual praecipe decree was i-.sue(l directing a reference to ihe .\'aster. and a sale on default of iiayment. The Master, amongst other.;, made II. an execution creditor. ;i party in liis ot'tice and settled the priorities- a? f(ll(iws: II. first, the plaintiff sec- ( nd, and L. M. & P. third. H.. rely- ing on having ])roved her claim in this suit, allowed her writ of execu- tion to expire, and so lost her prior- ity. Seven years afterwards the plaintiff revived the suit, and a final order for sale was made. The ^alc proving abortive, the plaintiff gave notice of motinii for tin order inter alia that a time be appointed to pay ilic sum due the i)laiiUiff. and in de- fault, that all the defendants be fore- closed. Held. I. That H,. being a prior en- cumbrancer, should not have been made a party, but that the plaimitT having acquiesced in the .Master's or- der, and in M.'s claim being proved, c.innot now. after the great lapse 'if tiiue. take exception to it. 2. That H. cotild not he foreclosed, nor. mi- ller the circumstances, dismissed from the proceedings. Order made foreclosing the defevid- ant by hill and subsequent encum- brancers, on default of payment, wiili leave to H.. if not paid ofif. to api>^v for a sale, or that the plaintiff pay 485 MUNICIPAL CORPORATIONS. 486 her or stand foreclosed. Lcggo v. ihibaudcau. VII, 38. And sec Allan v. Manitoba cr Xurlli- ll'cstcni Kailz>.'ay, XII, 57. Master's Office — Added Defend- ant — When Bound by Decree — I'rrm of Accounts.] — i. Where the party broiiglil into tlie Master's of- tifc under iiolice pruvidcd f(ir liy rule 117, (Jueen's Bench Act, iSyj, takes no steps to have the decree varied or set aside, he cannot afterwards ob- jtct to the plaintiff's riglit to a de- cree of foreclosure. 2. Where the [ilaimiff has served a party with such notice to come in and prove his claim ;i^ a sul)se(|uent encumbrancer, he c:innot afterwards raise an objection that the pariy so served has no lien '■'.: the land, ^. A mortgagee, in !i;;i!giiig his accoimts into the .Mas- ;i;\- office, should charge himself with the net proceeds only of any iitns or profits received by him f)Ut f I he mortgaged premises, leaving :1r encmnbrancer to surcharge if he ri insiders the mortgagor entitled to a ':'i'jer credit. I'iiiUips v. I'rout. xir. 143. * ■. t Notice of Credit.] — Held, where :;; a mortgage suit, a payment is made ilnring the time fixed for redemption, lUiil no notice of credit is given, there -liould be an order referring it to the \!;.-ter to fix. or the order may itself li\. ;i new day for payment. ^[ani- /i''.j & Xin-lh-li'est Loan Co.. v. V(.'/>r//, II, 125. Foreclosure Instead of Sale] — In :; mortgage suit, the Master, after '■.:• uring evidence, ordered a sale in- ■ 1 ad of foreclosure, as being iiKjre ' 1 neficial for infant heirs. Upon ap- ;.a! — ■/(■/(/, that the evidence showed i ..t a sale would not realize the ' intiff's claim, and foreclosure was '■ :a -ted. A rule to govern appeals I'l'ii; tiie Master uiion r|uestions of ; :.it approved. Landed Hanking & ! tn Co. V. Anderson. Ill, 270. Hedemption — Period For.] — I'i id, there should be only one period I'i six montiis allowed for redemp- tion, for all parties, mortgagor and subsequent encumbrancers. /Isli- doien V, Xasli. Ill, ^,7. See also Receivers. MUNICIPAL CORPORATIONS. I. BoL-XDAKlE.S, ALTEUATIOX OF. II. BV-L.\WS .\N'l) RESOLUTION.S. III. Ikoceehings in Council. IV. IliGiiw.w.s AND Ditches. \'. OlKICEUS. \'I. Touts. \'1I. Actions. I. Boundaries, Alteration of. Local Option — Liniiis ,>f Muni- elf'ality Clianged — I'ote Taken in Ai-a' Municipality.] — The Munici- pality of North Dufferiti pa>sed a i.i cal Option by-law, No. 64. Sub- secpiently the munici[)alily was divid- ed, six of its eleven townships being included in the new Municipality of Dufferin, composed of twenty-five tdwiiships. Later on the Council of the Muni- cipality of UutTerin passed a by-law. No. 22. rei)ealing by-law No. 64 of the former Municii)ality of North DufferiiL This by-law was submit- ted 111 all the electors of the new ii'unicip;ility and carried. liy the Municipal Act, 1890, s. .396 (, R. S. M., e. 100, s. ,ii0), it is pro- vided that ■■ Every Council may re- I'lcal, alter and amend its by-laws from time to time." save as by that .\ct restricted. On a motion to quash the by-law No. 22— Lleld. that the new nuinicipality had power to repeal by-law No. 64. Held, also, that the by-law came ur.der the control and power of the new municipality, only as applying to I'' i'l.' 487 MUNICIPAL CORPORATIONS. 488 tlic lerritory affected liy it, and it was only to liiat extent tliat it liecanie a l)\-law if liu new niunici[)ality. I'lie two year.--, before llie Ijy-law cnuUl he repealed. nin>t lie counted from llie time it wa> made to ajipiy to llie territory originally affected by it. Poxlr V. ihiit\')-iu. VIll, _'S6. Debentures. | _ The defendant miimeijialily issued, in Octol)er. iSSj, (iehentures payal)l(.- to hearer, in ''id of a railway Company. The^e de- l)entm-es were issued under a hy-la\v passed in .Sepiemhcr, iencli .\ci. Amongst other defence- the defendant set up tliat it was no: the same municipality that had issued the debentures, ami that the by-law was procure'! to be passed by fraud, and that the pass- age o\ the .\ct conhrming -ame. tlirougii the legislature was obtained l>y fraud and wilhiuit the knowledge of the members. Held. I. That the niunicipaliiy was liable, because the -Acts changing the I)oundaries preserved rights already ac(|uired. _'. That, even if the by- law could be (piestioned after the lapse of eight years, the defendant was barred liy the statute confirming it. London and Canadian Loan & .-li^i-ncy Co.. V. Morris. VII. 12S. Debentures.]— An adilition of ter- ritory to a nuuiicipality since the re- covery of a judgment made no (bf- fcrcnce in the liability of the defend- ants; for, by section .iS of The Muni cipal Act, the Municipal Commis- .sioncr is exclusively charged witli the adjustment of tiie assets and liabili- ties of the municipalities whose boun- daries arc in any way changed. Lon- don and Canadiiin Loan & Agency Co. V. Morris. IX. t,"';. Debentures. I — After the issue of tile debenture sued on in this action, ilu boun(larle•^ of the defendant .Mun- icipality were changed by the legisla- ture adding some new towiiship>. auj detaching tlie Town of Gladstone. Held, that the effect of the statutes 44 Vic. c. 7. s. 4. and 46 & 47 Vic, c 66. s-s. I & 4. was such tliat the defendant Municipaliiy was liable for tiic dibeuture in question, notwith- standing the altered boundaries. Cil- li'spic v. ll'rsthonrnr, X. 656. II. Rv-L.XWS .\N"!i Rli.SOI.UTIONS. Dairy Inspection _ ('tra I' ires.] — The City of Winnipeg, relying on seclioiis 51^3 and (.07 of The Muni- cipal .Act and section 17 of ^~ \'ic., c _'o, pa>sed a by-law for inspectint!; aiiil regulating d.'iiries and licensing \erdors of milk. Held, that ;i provision rerpiiring tlie owners of ;ill dairies whose milk wn^; sold in the City to submit to an in- spection and to take out a license, wlieiher their riairies were in the Ciiy oi- not. was ultra z'ircs and illegtl mi far as it ;ii)iilied to the owners of dairies who did not sell their milk in the City, but to other persons, who miglu or might not sell it there. IfclJ. also, that section .? of the by- law. which rerpiired applicants for licenses to s.atisfy the health officer of the City befo.e licenses could is- ■-ue, and left it in his power to decide V ho should have a license and who should not. was also ultra viirs as an illegal delegation of authority whieli the Council itself should exercise. A'l- Elliott and The City of lP'innit''t;. xr, 358. Dairy Inspection _ Ultra I'lVrf 1 — The City of Winnipeg having, in assumed exercise of the powers con- ferred by The Municipal Act, s. 500, as amended by 57 Vic, c. 20, s. 17; 58 & 59 Vic, c 32. s. 16, and 59 Vic , c 15, s. 16, passed a by-law for the 489 MUNICIPAL CORPORATIONS. 480 ii.cnsiiig, inspecting and regulating (u' dairies and vendors of milk ami i'> r preventing tlie sale or use of milk la- other foot! products until compli- ai'ce witli rcgulatinns, an application was made to quasli it vmder section ,^^5 of The Municipal Act. Held, fullowing Dillon on Miinici- fal Corl'orations. s. yi, and Mcrritt V. Toronto, jj A.R. J05. that all >uch li>-Ia\vs should lie cunstrued strictly. ,Mal that any anihiguily or doulii as III the extent nf the powers conferred on Mnnici|)alities to luake hy-laws is ti> he determined in favor of the gen- eral puhlic as against the grantee of ilic power, especially where such hy- laws afTect the rights of liherty or property of a citia'n, and that the hy- law in que-ition should he quashed because some of its provisions were i;r reasonable, and others exceeded the powers conferred by the Act. The following are the provisions ill dared to h- ohjcctionahle hy the judgment : — 1. The hy-law is so worded that Slime carriers of milk from points nntsidc the City, as railway Compan- ii s, might he required to procure li- censes ;is vendors r>f milk, or other- wise they would he subject to the penalties imposed. 2. It provides thai in case any ani- mal is found to be affected with tiil)ercular disease, it is to be separ- ated from all others, and kent apart initil it is [)roved hy iu'^pection that tlii' animal has recovered, and in the 'Ml .mtime the owner is prevented from selling the milk from the other cows in the dairy until a f'.irther in- ^ji'.'ction shows that thev have no' •' -ntracted tlic disease. This further iii-pection is to he made not less than •\\n weeks, nor luore than eight vrcks, after the first, which puts it in the power of the inspector arbi- tr.arily to keep the dairy closcil for ( eht weeks. ,?. The by-law further provides for ■in inspection of dairies, and a re- P' rt as to whether the regulations have been complied with or not : but a license is to be issued only if the Market, License and MealtJi Com- niittec gives no contrary order to the health ofticer. which jiuts it in the power of that conunittee arbitrarily to deny a license even when there is a favorable report. 4. The hy-law further provides that in no case where the regulations ha\e not been complied with shall the lu'.alth ot'licer issue a license, but con- tains a provision that the Council may override all that and direct a li- cense to issue, which opens a wide door to favtiritism, and makes the by-law une(|nal in its provisions. 5. The liy-law im])oses a special lax. charging so luuch for licenses and a further fee of 50 cents for every ow. contrary to the provisions of sections ,^,?,^ and' 3,^4 of The .Muni- cipal Act. 6. It is further [)rovided that if a licensee adds any cow ti) his stable, he must 'ving it to the inspector's -table to lie inspected, and pay a fee of 50 cents, whether he intends to sell her milk or not. 7. The by-law further provides that the inspector may inspect any cows or cattle in the City, whether the owner is or is not selling milk or any other food products of these cows or cattle, and may collect from tlie own- er a fee of 50 cents per head for such inspection, which is nltva vires of the .Act. Re Taylor and The City of II 'innipe};. XI. 420. Dairy Inspection — f/Zni r/n'-s-.] — .\rter the dfci'-ion in l\'e Taylor ami City of //'/inif/'.'.s,'. ir M. R. 420. the legislature by 60 \'ic.. c, jo. s. 14. amended section 59,^ of The .Muni- cipal .\ct. R. S. M., c. 100. by giving the Municipalities additonal powers in conne tion with the regulaton and I'censing of milk vendor^ and inspec- tio (if cows and stables, and the Council of the City then pa>-ed a new by-law for the same purposes as the former b\-law, which had been f|ua--hed. .Application was then in.ade to (|uas!i the new by-law. The I'ollowing objections taken to it were not sustained, and it was held tl.at the by-law was not unreasonable ru- ultra I'ires in respect of any of them : — I. That although the Council has power to prevent and regulate the 491 MUNICIPAL COBPORATIONS. 492 1^' sale of milk in the City, clause 3 as- siiiiicd tf) regulate the sale of milk outside of the City limits for use in the City, and to pass regulations which might prevent a citizen from going outside the City antion ot imlicy in the government (if the City as to the expediency of which the rate- payers and not the Court should pro- iiiiunce, and that the plaintiff's mo- tiuii for an injunction to restrain the • kfendanls from continuing to act or. till' resolution complained of 'shnukl !)'■ dismissed. A'i7/v v. C'/.'v c/' W'in- nlfcg, XII, 87. HI. Pkocekdixcs !\ CoL-.\(ir.. Prima Facie Regular. ] — Meet- ings of a Municipal Council are prima i'iicit' regular and valid, and a person .uting as clerk at these meetings is. ./• facto, the clerk. Ri\^. fix'. Rcl. i'iica\id \. Piihord. III. 15. Special Meetings.] — It is imt '.'■•'.Iiiii the powers of the Comicil of :i .Municipality to proside for pay- li'iiit of the expenses of counsel and ". 'tnesses in attendance upon a Fioyal <' mmission apjiointed. under section '4,-i of The Municipal .\ct. to incpiire i!;ii) the financial affairs of the Cor- pi ration: but the Council might pro- Iicrly authorize the employment of rriunsel and iiayment of other expens- C-; in npjKising a bid introduced into the legislature to abolish the Munici- pality and apportion its territory among the adjoining Municipalities. Resolutions of the Council making such provisions had been passed at si)ecial meetings, but the notices call- ing the meetings did not in any way specify the business to be taken up, as re(|uired by .sections J84 and j88 of the Act. Held, that the resolutions must be (puished (in th.at ground. Sciitblc — That if the Council had power to apply the funds of the Mun- ici|)aliiy for any of the purposes dealt with in the resolutions, it should have proceeded by by-law. L'pon appeal — Held, the 'Council of a Mu'iicipal- iiy at the close of the first meeting of the year, and of eacii meeting ;ifterwards. afljourned to meet ag;iin at the call of the reeve. Svdise(iueiit meeiings were held throughout the \ear upon notices issuetl by direction of the reeve whenever it was neces- .-ary to call a meeting. These notices (lid not contain any motion of the subjects or matters that were to be trtken into consideration at the meet- u-.gs. On the apidicalioii of a rateiiayer to ciuash a by-law and two resolu- tions of the Council passed at meet- ings called i:i that way — Held ( Dubuc. J., dissenting), ib.at the meetings in question were not re- gular but s!)ecial ir.eetings within the meam'ng of sections J84 and 288 of The Municii)al .\c1. and that under tlie latter section the applicant was entitled to succeed. A'(' Macdoitald. followed. A''' Rural Muuieipalit\ of }faed<'iiahl. S.. ,^8_'. I\'. llt'.iiWAVs Axti niTciu:.s. Liability to Repair.] — A Muni- eipality i-- iioi. by the connuon law, ar.swerable in damages occasioned by defective high\\a\s or bridges. A general statute provided that "all the roads and road allow;inces within the Province shall be held to he under the juri-diction of the Municipality within the limits of which such road.s or road allowances are situated, and I' ■! ■ i m MUNICIPAL CORPOaATIONS. 496 such Muiii(.-i|i,-ilily ^liall lie charged witli the mainUiKince oi the same, witli siicli assistance as they may re- ceive frum time to time from tlie Governniein of tlic Province. " Held, that this statute docs noi im- pose npon Mimicipalities any liability for such damages. Il'dllis v. Tlw Mimicipalily of .Issinil'diii. IV. S9. Liability to Repair — let- ami Siuiiy.' (Ill .S/i/iTi'i///,'. I — The phtintilt's claim wa-- for damages for an injury sf,slainetl by falling upon an icy slope which iiad formed on a sidewalk in the City of Winnipeg adjacent to a public well supi)iied with a pump which was daily used by a large num- ber of people. The well was one of about sixty (irovided by the Corpora- tion and maintained at its expense, and a nund)cr of men were employed by the Cori)oration whose duty was to visit the wells from time to time diu'ing the winter and remove or re- (liice the tuounds of ice on the side- walks and around the punips caused by the freezing of the water that drip- ped from them or was spilled from pails while Ijeing carried away. One of these employees was on the spot on the very day of the accident, and did not consider it necessary to do anything for the intriiose of making the place more safe for foot passen- gers, and otiier employees of the City whose duty it was to report unsafe eruditions had passed the place on the same day anil made no report up- on it. The trial Judge found on the evid- ence tliat the ice mounds and slope on tlie sidewalk had been caused, not from tlie water that dripped from the pump or was spilled in filling iiails there, liut ])y the spilling of water from tile pails while being carried all iig the sidewalk or in the filling of other vessels, and so were the result of negligence on the part of other persons and not of any faulty con- struction of the pump or its approach- es ; and that the place w here the ac- cident happened was not shown to have been a; the time more unsafe than many other spots on the side- cal conditions, when freezing and walks are frequently rendered by lo- t ha wing f(jIlow each other at short imervals. Held, I. 'I'hat the ntere allowance of the formation and continuance of c:b>tructi(jns or dangerous spots in the liigiiways due t(/ accumulaiiejn^ of snow cir ice may amr)unt to non-re- I)air for which the Corporation would be liable, but in every such case the (|uestioii to be deiermined is whether, taking all tiie circumstances into con- sideration, it is reasonable tf) hold tliat the .Municipality shoidd have re- moved the danger. City of Kiitjistoii V. Jh-i'iuhiii, (iSi/)) 27 S. C. K. 46, followed. J. That in the present case it would not l)e reasonable to hold the defendants liable, as there were >>o many such wells in the City, Usually l)laced at street crossings and in con- stani use: and to keep tiie sidew.iiks near ihem completely free from ice or roughened by chopping or sprink- ling some substance upon them wmiM ha\e been well nigh impossible. Tay- lor V. C//.V of ll'innil'Cg, XII. 479. Liability to Repair — .\'C^lii^i'n,\- —fitch-holes in H'iiitcr Roads— 0!>- jcitioiis not Raised at Trial.] — .Ap- peal from the judgment of the Coun- ty Court of Portage la Prairie agani>t the defendants. The plaintilif's claim was for dam- ages for injury to a horse caused liy i;i '11 -repair of a highway by reason of the continued existence of a series of deej) pitch-holes produced by tral'lic in the snow-covered surface of a li;a\elled road in the defendant Muni- cipality. There were ten or twelve of these pilch-holes in almost uninterrupted succession at intervals of only a few feet, varying in depth from i i" .^^ or 4 feet below the level of the tra\el!ed snow road, and the descent into them was very steep. Tiie evidence also showed that th. dep.tii of tlie snow outside the one beaten trail was so great that it w.'.s iii-'possible for a loaded sleigh sucli as the |iiaintiff was driving to turn out so as to avoid tlie pitch-hcles, and tiiat tiic defects in tlie road had existed for a considerable time and cmild iiave been remedied by a sni.ill expenditure of money. 1 i 497 MUNICIPAL CORPOBATIONS. 498 //.•/(/ (Bail). J., (li.^sfiumg). that. iir.dcT sictiiMi 6i.S (if Tlic Mtinici|ial Act, R. S. M.. 0. 100. tlio (Icl'Linlanis wire liable for the damages sustain- ed l)v the plaimitf. Cuswcll v. St. Mary's Rmid Co.. (iSOy) jS U. C. R. .'47. and ll'alhcr v. City of Halifax. (hSS.p i() X. S. R. ,^7i. Cas. Dig. 175. followi'd. The liahilit.. of tlie Municipality for !,(;n-repair heing limited by section 619 of the .Act to that p(jrt!oii of a road on which work has been per- formed or public improvements made by the immicipality, or which has been in some way assumed by it. ob- jection was taken on the hearing of the appeal that there was no direct e\idence that such had been done: but the Comity Court Judge slated that it was not (lisf)uted before him thai the .Municipality was botmd to keep the road in repair, and b.e found that it was a road of very consider- able importance leading into the Town of Portage la Prairie and at all times nuich used. Ifcld. following Proctor v. Parker. (iSi)9) 12 -M. R. 3J9. that, by not r;ii>ing the objection at the trial, the ■ lefence had waived strict jn'oof of the circumstances rendering the Mun- icipality liable to keep the road in rei)air. Kennedy v. Portage la Pra- !V,v. XII. 634- Regulating Traffic — .l/(j/(7 Fide i'y-l.a'e.] — The Legislature of Man- iiob.a liaxing enacttd. by section 50,^ of The Municip.'d Act. as amended by 5S \'ic.. c. J,2. ?. 14. that Rural Municipalities might pass by-l;iws " for regulating or prohibiting the ptissage of traction engines, thresh- ing mtiehincs. or other heavy vehicles 'i\er highways or bridges upon high- ways, and for provicling the penalty in case of the violation of the provis- ions of such by-law." t'v defendtmts ptissed a by-law providing that no traction engine, steam engine, thresh- ing machine, or water tank should rass. or he transported over any of the highw.ays within the defendant's Municipality, except at the sole risk of the owner of such engine, ma- chine, etc. //(•/(/. thiit this was not a bona fide exercise of the jjower conferretl by the .\ct, as it neither regidtited nor prohibited the passtige of the en- gines, etc.. and that the by-!;iw w;is /(///•(; 'i'ires of the Council. Me.Uil- lan V. Porla,^e la i'rairie, XI. _m(). Ditch Constructed Along High- way Between Two Municipalities — I iiantlioriced lPork'.\ — The iim- \isions of The Muncii);d .\ct, R.S.M., c. 100, anil amending .\cts. reititing to higliw.ays between adjoining Mun- ieii);ilities. recpiire the joint tiction of the Councils of the two Municipali- ties in any work upon the same. The |>laintirf. whose Lands, situtited in ;i Municiptility adjoining thai of defend;ints. had been overilowed with water and his crops damaged in con- secpience of the negligent construc- tion of a ditch along the highway be- tv, een the two Municipalities, cl.aim- ed d;un;iges in respect thereof. It was ()ro\ed that the work h;id been done by the authority of one of the Ward Committees of defendants' Council, but the council had not ])ass- ed any resolution or by-law or mo- tion providing for the construction of the ditch in tjuestion, and h;id not, in any formal manner, tiuthorized the W'.ard Connnittee to execute such work. //(■/(/, that the work done was wholly nitra -eires of the dcfendant.s' Council, and that the defeuflants were I'ot liable for the acts of their agents ci'nipl.'iined of. which were wholly bevond the scope of their authority. The iilaintifT relied upon two reso- lutions of the Council authorizing the treasurer to pay out moneys for ward tipproprituions on the orders of thr chairman of the W'.'ird Commit- ti-es. and upon the fact that two pay- ments on account of the work had been made by the Council. Held, that this was i.o sufficient evidence of the adoption of the work by the Council, so as to make the de- fendatUs thereby litible. although the ditch hafl been negligently ;uid im- I)roper!v constructed, and thtit the plaintifT must he non-suited. Atchc- snn V. Rnral Xlunieil^aUty of Portage la Prairie. IX. 192. m^^ 490 MUNICIPAL CORPORATIONS. 600 Street Railway— /;.n/i<.?iT'c' A'/'a'/// to (sr of Stiu'ct for rniiiiu'ny Pur- fost's — Powers of Municipal Coun- cils — "Portion of Street."] — Muni- ci]ialities in Manitoba are tlie crea- tures (if the leRislalure. and liave (inly siR-Ii powers as are expressly ciMilerred njioii tlieni liy the Icgisla- tnre. or implied as iiu-ident thereto, or necessary to he cxercise'd in order to carry inio effect the powers ex- pressly pi veil ; and, therefore, witli- oin express legislative sanction, such a Mnnicipality lias no power to con- fer npon any person or Corjjoration an exclusive right to ojierate street r;'.ilw;iys (in any of its streets or highways. The City of Winnipeg, by hy-law jiassed in iSSj. assumed to grant to the plaintiffs, for twenty years, " the exclusive riglit to such portion of any street or streets as shall he occupied hy said railway." and the pkiintiffs claimed an injunction to prevent the defendants from operating a compet- ing line of street cars on tracks par- allel to them on the same streets. The Charter of Incorporation of the City, c. ,U), of tiie Statutes of Manitoba. i)assed in iSSj. gave it no express power to grant any exclus- ive rights or monopoly of tlie use of the streets, 1)ut provided that the Council might pass by-laws " for aiuliorizing the construction of any street railw.ay or tramway upon any of the streets or highw;iys within the City." and the plaintiffs' .Vet of In- corjiorrition, c. ^". of the stattucs p;!Ss(.(! in the same year, gave them " full power and authority to use and occujiy any and sucli parts of any of the streets (ir hi.ghways of the City as may be required for the purposes of their railway track, the laying of the rails and the running df the cars," suli.iect to the terms of any agreement lielween the i)laintifTs and the Ciiy relating to the same. Held, that there was nothing in cither statiUe enabling the City to grant the exclusive rights claimed bv the plaintiffs; and, also, that even if red to, the exclusion intended liauiig n(j application hiteraliy across the wiiole width of the streets in (pies- tion. but only longitudinally as far as the plaintiffs' tracks extended, li'in- ni/^e^ Street Ntiil'.eny Co. v. iVinni- /»i',C' lilectrie Street kaiiteay Co.. l.\, 2\(). Strict Construction of Powers .S'(//i' of Road .llhneanec — Compen- sation — Statutory Xotiecs — li'ai'eei:] — A Rural Municipality passed a by- law closing up ;in original road al- lowance and selling it to M.. who owned the land adjoining on one side. W. owned and resided ui)on the laml adjoining on the other side. Tlieru \v;is another road by which W. had access to his land, but it w.-. not so convenient, as it re(|uircd him to trav ed a nnich greater distance in goinc; to and returning from the market town, and oilier lands which he owned. Compensation to W. wis not provided for in the by-law. ii'ir did the Municipality provide ,iiiy other coineiiieiit ro;id or access to W'.'s land. The public notices that were po-led up pursuant to section .|,vT of The Municipal Act were no- tices of an intention to close up the road allowance, but said nothint; about selliii.g it. Ujion an applica- tion to fiuash the by-law — Held. I. That, under section 440 of The .Municipal Act. it is only when a person would be, by the closing of the road, excluded from all ingre-s or egress \o or from his land, that he can demand some other convenieii! r(-ad or way of access. If there is an existing road wdiich would have -- it isfied the rcfptirements of the land, if jirovided for the use of such dwner in lieu of the highway closed, then the case is not within the section. It may not be so convenient, and, if so, then it is a case for compens.-uion. J. That it is not a condition precede-it to the passing of the by-law that compensation should be given, or pi'o- vided for in the by-law. 3. That the objection that no notice was given, pursuant to section 435 of The ^luni- the City had such power, it had I cipal .Act. of an intention to pa? failed to confer such rights upon the | by-law for selling this road allow- plaintiffs by the by-law above refer- ' ance was fatal, and the applicant, by 501 MUNICIPAL CORPORATIONS. SOS up the 111 440 ot wlicn ;i -ini>- iit that ho nvcnii-iii ri' is an ivf s It- land, if , ^wncr (1. ih.ii i(in. It it >n. itioii. -'. rL'fi.'iK".t i\v tliat (ir pro- rhat the Riven, e Miini- pnss a allow- cant. hy iiiuliiig at tlie meeting (if tlie Couii- i at which tlic by-law w;is jiassicl, i.il (ihjfctinR. was not estopped from ling exception to tlie want of no- i. 4. That, considermg the cxten- r powers pf)s>essed \>y Miiniciiia! iincils. and the danger there is of 1 >e heing used unwisely, if not to ive the interests of private individ- .]-. they should he held to a strict inpliuiice with the statutory re- .:!renieiits when proceeding to ex- i>i^e these powers. White v. The itral Municifality of Lonisc, Vil. -S 1 . \', OlTIlKRS. Custody of Books of Municipal- ity- 1— It is the duly ot the clerk oi' Mimiri|)alily under the .Manitoh;' Aitmicipal Act, to keep the iiooks and ncords of the .Municipality and of the Council in Jiis oflicc or in the lii.acc aiipointed hy tiic Council, and niiiier the reeve nor any other ])er- Miii lias any authority to take any of ilnse hooks or (lajiers out of the cus tody of tlie clerk. .\ ratepayer applied to the clerk to inspect the inimites of the meetings "f Council and for certitied copies of ixriain resolutions, tendering the pro I rr fees. //(■.'(/, thai tite clerk could not ex- cr.se himself fcr refusing the demand n the ground that the reeve had ikeii away the hooks to Winnijieg I'^r use ill cert.ain litigation agtiin^t tile Municiptilily. and that he cmild ::"t get the honks or papers so as to II niply with the demand: and a iniii '■ i^uts was granted. h'r i'litidv. X. \'I, Torts. Arrest Made by Police,] — Tlic I ' :.rter of the defendants provided i'T the api)ointmcnt of a police force, •iie meniiiers to he aiipointed hy .'ind I" 'Id oflfice during the pleasure of ;i !' tird of police commissioners. The 'Vteiidnnts provided tlie pay of the men. A niemher of the force arrest- ed the phiintiff for an alleged i)reach of a i)y-law of the defendants. Iltiil, in an action for assault and false imprisoimiem, that the defend- ants were not liable. Wishart \. The i'lty (if Hnuidoii, IV', 45.V Remedy — ./;-/'//ni^((n.| — In the absence of negligence, a iKirly injur- ed by the acts of a .Municipttl Coun- cil c;m only resort to the arbitration pro\i(led for i)y The Municiiial .\ct. .Ichi'Siiii V. r5 of The .Muiiicip.al .\ct in ;ui tirbitrtuioii. Held, llitit it w;is unnecesstiry to de- cide wlieiber thtit section prevents ;i p.arty from resorting to an action in case of damage resulting in tlie man- ner .alleged where neg'igenee is charged. Iliii as. under The .Muiii- cip.al .\ct, sections 4zene. .\ll. 41. Negligence in Exercising' Statu- tory Powers — A.'/.c/// "f .Setidn — .Irl'itrcilion.] — The plainiilT chiimed ic V. Miiitici[>ality of ll'rsthounir, X, 656. Pleading.] — In declaring against a Municipality for damages to plain- tiff's land arising out of the con- stiuction of drainage works by de- fmdants. it is necessary to allege that such ditch or drain was within the territorial limits of the Municipality. /■Itclu'soii V. Portage la Prairie. IX. 192. Execution— .Van (/ (7 ;« 1(5 ^.v Sheriff — Production of Assessment Rolls — Clerical Error in Col^y — Delay in Mahinn .If't'lication for Mandiimns huihility to Obey the irrit.\ — The sheriff, ha\ing in his h.ands an iin- satistied execution agair.st the ik - fer.dant Municii>;dity, ))rocccdcil un- der section ()(>,i of The .Nlunicipal .\ci. K. .'^. M., c. 100, and served a copy o' the writ of execution on tlie se - rct.iry-tre.isurer of the Municip.ili y or. rjih June, iHq.V On the J5iit July following lie demanded the pVi diictioii of tile assessment rolU fur ;he pur|)ose of striking a rate to sat- isfy the execution, but the secretary tie.isurer refused to comply with ihr demand. On the J~tli October fol- lowing, the sheriff made a siniihu' de- m;iiid, and h.aving nut with a similar refusal, he ;i))plie(l for a mandamus. to compel the secret.ary-treasurer \> Iiroduce the rolls. In the copy cif the writ served on iJth June, there was a clerical error, the year i8f),^ being written in tw 1 I-'laces instead of 1890, but enoni^'i ii'fnnnation appeared in the copy to show th;it the error could not mis lead any one. //(•/(/. I. That the apjilication was rightly made by the slieriff riinl not by the plaintiffs. 2. That, in view of the express wording of s-s. 663 and ( ()4 of the Act, the proceedings wer..' properly directed against the secrc- t;,ry-treasurer, instead of against ili^- Municipal Council. .V That the ap- plication was not too late, althuiigh the collector's rf)]ls had been made up and completed, the t.ax notices >oiit I'Ut. and some taxes had already been jiaid. The first sicps taken by the sheriff were in ample time to enahle tlie Council to m.ike the rccpiircd levy thtmselves. and they cannot take ad- \antage of their own laches and neg- lect to prevent the law being carried out. 4. That, even if the sherilT would have been unable to strike the rate and arrange for the necessary le\y, the same year as recpiired liy the statute, that would be no reas 'ii for refusing the writ, for mere in- ability to oliey the writ has not in all cases been considered a sufficient rea- son for refusing it. Reg. v. Bir- itiingham. Etc.. Raik^'ay Co.. 2 Q. B. 47; Reg. V. Great JVestern Rail:ca\ it m^' 50.'> NEW TRIAL. 50ft Co.. I E. & B. 25,-(; Ri'g. v. Vorh. Xr.K'casth'. lite. Kiiili.ay Co., \(y (J. !! Hik), rt'lifd on. Lundon c'r Can iiJiaii V. Morris, IX, .^77. si'crc- the ap- ll'.llniii;!! niailf np CC-^ -.'lit idy Ihh'm iiy the enrililc iri'd levy take ail- aiiil neg- carviei! sherit't r'ke llie lecessavy liired liy reas 111 nere in- idt in all ient rca- V. Bir- 2 Q. W. Rail'iK'uy MUTUAL CONTRACTS. .V('(' CoNTHAlTS. MUTUAL COVENANTS. .Vi'i- C()Vi;nanis. NAVIGABLE WATERS. Obstructions — l'li\uliii<^. | — A I'eelaratidii ;tllcged tliat tiie plaintiffs ".lie (iwiiers of sieanilioats aeeiis- i"i;;ed to iiavigaie the l-iod Kiver; :! H the Red Ri\er \v;is a iiavi^ahle li'ir; that there was no other nnile i'mt iilaiiitiffs' hoats; tliat defendant, V liiNt ilie |)laintirfs were so navigat- '!ir, " nnlawfnlly. wrrjiinfiilly ;ind iii- Miiionsly l)l(_H-ked ii)) and nh^tnieted til" s;ii(i river with lotj^ and tiniher. I'lid therehy ol)strueted. impeded, liiii- '!« rod and prevented from n.-ivigatinii- :l:r said rivir with their said hoais. and continued tlie said ohstniction for a long space of time, whereliy iliiring all th.at time the plaintiffs urre hindered and ohstnicted from ;!;!\ ijiating the said ri\er;" and al- 'ai:v(\ special damage. Held, had, n])fin demurrer. Xorth- I't'rst .\'ari<:ation Co. v. Walker, III. Obstructions — Pleading;.] — The (kckiration, set out in tlie case, for obstructing the nanvigation of a river .and thus delaying the plaintiff, upon demurrer — Held, good. Xorth-lJ'cst Xaz'iga- t'on Co. V. Walker. IV, 406: V, ^7- Obstructions— L/(;/»i7i7_v of Bridge Comically.] — The defendants by their charter were empowered to erect a toll bridge over tlie Red River, aiul it re(|nire(l that the bridge should be provided with ;i draw or swinu;. so ei'i'.structed as to ;iiiow sutVicient •Space, not less tlian Ho feet, for the passage of boats, rafts, etc. .Xfter the bridge had I)een constructed, the two ends were carried aw.ay, leaving the swing jiortion, however, uninjur ed. i''or the purpose f)f a tcuipor- .iry hridj^e. pendinu repairs, fiijcs were (lri\en iiUo the lied of tJR' river. Iiut no obstruction vvas pkaeed under till' swing. The iilaintiffs' r.aft. in cle- seending ihe river. w;is driven by the current ag.iinst the piles, bmken .and lost. //.'/(/, that the |)ublic h.ad no right to Use .any other ■•\ku\' than ih.it pro- vided for by the ch.irter. _>. Th.ii the P.ridge Coir.p.any were I'utitled to elect ;i tempor.ary bridge, and. for thai purpose, to drive the piles. ,\. Where both (larties have eipial rights in a nruigab'e river, it must be siiown. in order to luaintain an ac- tion, that the defendant has exercised his righis in such a manner .is to un- rea>ou;dilv impede or d.el.av the pl.ain- tiff. A'. '/.>•/<>// v. A','(/ River Kria'ge Co.. I, .'35. NECrLIGENCE. See C.\]i\:\v.\«. 1 ( ''). ill .See Tout. NEGOTIABLE INSTRUMENTS. .S'('(' .AssiliN-MKXTS. See 111) i.s .\Nn XoTEs. NEW TRIAL. Perverse Verdict — Xoii-Suit.] — At the tri.i! of an action by widow and children, the presiding Judge at the close of the plaintiflf's case hcbl 507 NORTH-WEST TERRITORIES. 508 lliat there was no evidence to go to tlie jury. PlaiiitilVs counsel fleclincd to take a non-^nit or to permit leave to Ijc reserved to enter a non-suit in Term. The Judge then told the ju'-y to bring in a verdict for the defend- ants, and allowed no addresses by counsel. The jury found a verdict for the plaintiff. Upon a motion in Tern- to set aside the verdict — Ilih!. I. That neither the trial Jf.dge nor the Court could enter a non-suit against the plaintitT's desire. 2. That the verdict would not neces- sarily be set aside, but would not be allowed to stand if the trial Judge was plainly right in point of law. Rajottc V. Canadian Pacific Railway Co.. V. 3(^5. of Defendant Costs. I — Can Xcz.' se heard Absence Llvidcncc - and decree in plaintiffs favor made on 27th March, 1883, when de- fei.dant, though absent, appeared by coimsel. Cause re-heard by the Full C< urt in Easter Term. 188,5. and judgment atliriuing decree given 4lh b'ebruary. 188.}. On 6th I'ebruary. 1884, defetulant prcsentetl a pitition. pr;.ying that the decree luight l)e set aside, and that he might be allowed to adduce evidence in his owv; be- half, and that the suit might be set down agaiti for hearing and examin- ation of witnesses, on the ground th it defendant was absent from Mar- iti'ba. and never made aware of the date of hearing. Ilcld. that application must be dis- missed with costs. .-Ircln'iald v. Goldstein . I, 146. Absense of Witness.] — A party who finds himself at the trial without seme inipov^nnt witness, should ask for an adjc ■ imcnt of the trial in- stead of prc.eeding with the trial. If he proceeds, a new trial will not aftu-wards be granted. Moricc v. Baird. \T, 241. Absense of Counsel.] — Mistake of Solicitor — Costs.] — On an applica- tion to a single Judge in Court under rule 6.S4, Queen's Bench Act, 1805. to set aside a verdict obtained by plain- tiffs at a postponed trial in the ab- sence of defendant's counsel, it was shown that he had not attended on the post[)oiiement owing to a nii^ap prehension not attributable to negli- gence as to the date to which the trial had been postponed, and that it had always been the intention of de- fendant to defend the action. //(■/(/, that the application should be granted on the terms that the cust^ of the day should be costs to the I'laintiffs in any event, and that the costs of the application should be costs to the plaintiffs in the cause. roUock V. Goldstein. X, 6,?i. Verdict Under £20.]— A new trirl \'ill lint be granted on the gro\in 1 iiiai the verdict was against the weight of evidence, where the ver- ilict is under £20. Cleaver v. The Municipality of I'llancliard, IV. 464. Rejected Evidence.] — Necessity for formal tender of rejected evid- ence discussed. Martin v. free Press. VIII, 50. Computation of Damages.) — Where the principle upon which the iury should proceed in estimating damages was not made clear to them. ;i new trial wa■^ ordered without costs. Pettit V. Kerr. V, 359. .S'lV also D.A.M.NC.Ks ; Evidicxle. II; Master's Office. NON-SUIT. See Corporation, V. See Juiir.MENTS, II. NOr.TH-WEST TERRITORIES. Criminal Appeal.] — In the Tcr ritories it is not necessary that a trial for murder should lie based upon an indictment by a grand jury or a cor- oner's inquest. Reg. v. Connor, II. 235- 509 NUL TIEL RECORD. 510 Criminal Appeal.] _- The Court I i Ouccn's Bench in .Maiiitoija has no iH uor to send a luihcas lorpus to the Xiirtli-West Territories, and will hear ;i 1 a|)i)eal in tlie absence of the {jris- (^ er. Upon a criminal appeal froni tl.r North-West Territories, the orig- iiKil i^apers should be prcjduced. If the prisoner cannot procure them, the Li'urt will act on sworn or certified lopics. Reg. V. Rid, II, 302. Criminal Appeal.] — 1. In the Niirth-W'est Territories a stipendiary iiiasistraie and a justice of the peace, \u;h the intervention of a jury of six, have power to try a prisoner charged with treason. The Dominion Act. ).'. \'ic.. c. 25. is not ultra zircs. 2. '' iu' information in sucli case (if any ■,;.f(irmation be necessary) may be ■, ken l)efore the stipendiary magis- 'i;:ic alone. An objection tn the in- i' m'ation would not be waived by i''rading to the charge after objection mI-i n. T,. At the trial, in such case. 'ir e\idence may be taken by a short- ':..n(l reporter. 4. To the extent of ■,!:e p.nvers conferred upon it. the hominion Parliament exercises not delegated but plenary powers of legis lalion. Reg. v. Riel, II. 321. NOVATION. Sec Ei.ECTio.v OF Remedies. NOTICE OF A RIGHT. Actual Notice.]— 1 1. J. B.. on 24th 1 iccember. 1873. conveyed a i)arcel of land to D., and. on the 24th Sep- tember. 1874. conveyed the same piece ' f land to ^i. D.'s conveyance was registered on nth May. 1875. and .M.'s on 25th September. 1874. M. was the solicitor for H. J. B. on the sale to D.. and. on 5th May. 1874. made tiie usual affidavit of the exe- ctuion of the deed to D. Held, that M. had actual notice of D.'s deed at the date of the affidavit of execution. That such notice would lie assumed to ha\e continued until the date of M.'s deed, and that his (Iced must be postponed to D.'s. Ag- vcw v. Mortally, I. 49. See MoRTC.\cES. Sec Register of Deeds. NUL TIEL RECORD. Nature of Issue— /t/f;//i7v of .Ic- tiuiis.] — Upon an issue of mil tiel record, the only question is whether the record upon its face shows that the present cause of action may have been the same as that for which judg- ment was recovered. If the plaintiff desires a closer examination of the fiirinir action, he should tile a new a^>'gnment, or a rei)lication denying the identity of the causes of action. To an action (i) upon the ciinnnun counts. (2) in trover. (3. 4, 5 & 6) upon a special contract for two years .-ervices. at $1,000 a year; the defend- ant pleaded to all the counts except ibat in trover, judgment recovered in the County Court. The plaintiff re- plied ;()(/ tiel reeord. The record when produced, showed that the plaintiff had recovered for debt $83.33. Held, that the existence of the al- leged record sufficiently appeared. I'er Killam. J. — i. The le.-t as to the identity of causes of action is. whether the same evidence will sup- pert both actions. Luiiii v. iriiiiti- /'<•,;', II. 22-::. Nature of Issue — Evidence.] — Held, following l.unn v. IViiiiiil^eg, II. 225, that the only c|uestion upon an issue on a plea of iiitl tiel record is whether there is remaining in the Court in question the record of such a judgment as the pleading.^ set up. To a declaration in covenant for pay- nierjt of money, and for use and oc cupation, the defendant pleaded a number of pleas, alleging that both causes of action were in respect of rent, and setting forth various cir- cimistances showing a termination of the tenancy. The plaintiff rejilied that formerly he brought an action in the County Court fi^r other rent un- der the same lease, in which action the same defences were set up, and 511 PAHTIES. 512 m ilic phiiiitilt liad judgment; a iraii- >crii)t to the Court of Queen's Bench : and tliat the judgment thereliy hL-_ eame a judgment of the Court of Queen'> Bvncli. Rejoinder, ;/((/ ticl ncunl. rpon trial of this issue, the plaintiti produced a transcript of the procuiure hook of the County Court, from which it appeared _ lliat on a certain day the phiiutit'f recovered against the defendant judgment for $1.^5, for deln. together with $20.10 for costs, and also produced the tran- script of this judgment, in the statu- tory form from among the records of the Court of Queen's Bench. Held, the exi.-tcncc of the record as alleged was sul'liciently proved hy the production of the transcript hied in the Court of Queen's Bench, and that the only judgment siihsistmg w.is that recovered in the Court of Ouein's Bench hy the tiling of the transcript there. Burridiic v. lnucs. II. -MJ. ORDERS. .\i'i'i:.\i.s, \' ; XI ; Pu.xcTicK IruCMENTS. I. X. XI, XIII. XVI. During the hearing, it was ohject- ed that the copies served with the n(nice of tiie ai)p!ication as retiuired hy section 5 were not annexed to the notice. Held, that flelivery of the copies with the notice was prohahly sutTici- ent compliance with the .\cl. hut at any rate the objection should have hten taken as a preliminary ohiec- tion. In re Sutluvlnnd. landlord, and Pi rtii^al. tenant, XII. 543. Costs.] — The costs of proceedings under the statute with reference to overliolding tenants should he taxed according to the scale of proceedings upon the trial of an action in eject nient. Citv af H'innipcq v. Guilcr, III. 23. OVERHOLDING TENANTS. Demand Unsigned — .Scrz'icc of r.i/'iV.J not .liino.wd to Xoticc under Section ~,—!'reliniinary Objection.^.] —In proceeding for an order for possession under The Overholding Tenants .\ct. R. S. M.. c. iiJ. the de- n-.and in writing served hy the land- lord under section ,^ of the Act re- quiring the tenants to go out of pos- session was unsigned, hut was other- wise sufficient in form. When it was served, its purport was verbally ex- plained to the tenants, who were told tliat it was from the landlord's agent, and one of them then went to see the latter about it. //('/(/. that the demand was sufifi- cienl under the circumstances though m. signed. Mor-uiii v. Leach. (1842) 10 M. & W. 558. followed. PARENT AND CHILD. Maintainence.] — I, \ father can- not, except under C. S. M.. c. t,q. <. II. be ordered to p;iy a sum for maintenance of his child in anoth- er's custody. J. A decree cannot he made against a father for past main- tenance of his chi'dren. although pay- u'cnts might be iiiad.e f.ir that pur- nose out of funds of infants in Court. '/!■,)<>(/ V. IJ'ood. II. 108. .S'l'i' (;/.\-(i HrsiiAMi .\\n Wife. PARTIES. I. PL.MXTII-r.S. II. Deienu.vkt.s. I. Pl.-MNTIFFS. One Action by Two Persons Not Partners — nitJcrent Claims.] — The plaintiffs, husband and wife. 1)1 ought action for tlie value of their -irviccs under a contract made hy the defendant wiih tlie husband to i.ay him $425 for the services for a 513 PARTNERSHIP. 514 ar of both husband and wifo, iaintiffs were, as ihcy chumcd, I'liigtully dismissed, and sued he- ir the end of the year for a pro- •:i innate part of the !?4J5. giving e(.iit for certain payments. Ifiid, tiiat tiie husband and wife ■iild not join in one action tlieir p;iratc chiims for their work and '''<"]■ done for tlie defendant, even if !c dismissal was wrongful. Cniiii- r V. Mcliwan, IX. 419. .llld SCr IlrSll.VNl) ANM) Wll-E. II. Deiexpaxts. Trustee and Cestuis Que Trust- ent. I — An answer set up tliat the de- fendant acted not for himself but as :lic agent and trustee for five other pcr-ons. Tlicre was no proof of this fact other than a recital in the con- ve\ance to which the rtefentlant and iw'i of the alleged ccstnis que trast- ii\t were parties. Held, t. That the con\eyancc was :;.■ exidence against the plaintiff. 2. Ti'.ii the answer could not be read as t'.ulencc against the plaintiff. ,v Tliat the allegations in the answer in;;j;ht be considered with a view to ilncring further investigation into ;-::-iiciilar facts. 4. That as the ccs- •.:.,;■ i/.P' tnistcut lived out of the jur- i^iliciion. the Court would not. in its i!:M-retioii, allov,- further evidence to ' ■ given. 5. Oucrrc — Whether, in aiiy case, the defendant would be cn- '.iiied to have the ccst\iis que tnistcut ! '.idf parties. Iforsniau v. Burke. IV, _M5. Trustee Representing Cesttii Que Trust.] — See Lcacock v. Clhunlwrs, III. 64^; Gillies V. Commercial Bunk. IX. 165. Salr. ot' Land — Party Interested X, ! Defendant.] — B., one of sev- eral >''ndants, died, and plaintiffs, uithou review of the judgment or sugg.-stion, issued a certificate of ii.lgment, registered it against cer- '.: :ti lands alleged to belong to y[.. a'l.'thcr defendant, and filed a bill for .>ale against him and another person (A), in whom the title to the lands was vestetl. The evidence disclosed an interest in a person not a party to the action. Held, that a decree for sale and for a conveyance should not be made. (hihiriti Honk v. McMickcn.Vll. 203. Cloud Upon Title — Action to Remove — inneecssary Parties.] — S. conveyed land to the plaintiff, w!io registered his conveyance. S. after- wartls conveyed to Fr., who convey- eil to Fo., who conveyed to the de- fendant. In a suit to declare tlie-e c< nveyances to be clouds upon tlie plaintiff's title, and to remove them — Held. Fr. and Fo. were not neces- sary parties. Blair v. Smith. I, 5. St also Ci.nfD frox Title; Con"- TKACT. Ill (b) ; CoVEXAXT, I; FuArnri.EXT Convevaxces, XI; IXTEKl'I.EAUEK, II: MoKTC.AC.E, \Tl; PAKTXEf^sHir, II: I'i.ead- ixc, II: RAii.R(\\ns, I: Real Pkopeimv Act, I\'; Receivers; Specific Pereor.maxce, PARTITION. Practice. | — P;irti;ion proceeilings must be commenced by bill in eipiiiy. Re Larocque. Ill, 2^4. PARTNERSHIP. I. Rights axd Liaiueities as to TiiiRn Parties, II, AcTioxs \]y or AiiAixsT Firms OR P.VUTNERS. III. LlAlin.ITV I'V FSTOPPEE, I\', Actions for Dissolctiox axd AicorxTixc. \'. Powers and I.iaiiii.itie.- .\eteu Dlssdi.i'TIONS. m 515 PARTNERSHIP. 516 J. RuniTS AND LlAr,ILITIES AS TO TuiKU Parties. Power of Partner to Borrow.] — A partner lia> power to Ijurrnw money for the puri)u>es of tlic lirni, but if borrowed upon his own credit. c\en if ap])Hed for the purposes of tile firm, lie alone i> balile. I J ltd - sell's liny Co. V. SlCii.\trt. W. S. Goods Purchased for Firm, but in Another Name. | — h was alleged tluU some oi the goods were pur- cliased by S. for bis own use. lie having admitted, howc\cr, the cor- rectness of accounts delivered to the firm, including these goods; and the books of the firm, which he kept, liavmg recogni;a'd the indebtedness as of tlie firm — licit!, that the onus was on the de- feiulants of proving that goods were so purchased by S. S was a member of the firm of S. & Co. lie purcnasetl goods for the use of tli(> firm, but said that they were for J. S. v\: Co., of which firm b.e said that bi'^ partners were mem- bers. //(■/(/, thai the firm was liable. Jfudson's luiy ("". v. Stewart. 1\', S. Notes — Liability on Xotcs Si^iiiwd by Co-l'artiu'r.\ — Held. i. The im- plied authority of one partner to sign tile partnership name, or to make and endorse noies. is limited to doing so for the ])urposcs of the partnership. 2. Where an individual takes a note made or indorsed liy a partnership, krowing that it was not matle or in- dorsed for the purposes of the part- nership, the onus is cast upon the liolder of proving that the partner- ship signature was given with the l^nowledge or iissent of every mem- l>er of the firm. I'liiitn Baiik v. JUil- incr, I!, .>So. II. Actions Bv or .\gainst Firms ok Partners. Action Against One Member of rirm.] — Martin, a partner of the de- fendant, was not a party to the suit. and the declaration alleged that the defeiidant executed the agreement in the firm name of Martin & Curtis, of which be was a member, but had im authority from Martin to use his ii;m;e in ni.aking aiul executing it, of which want of authority jilainiitT iiad no knowledge, but that the defeiul- :\m acted therein on his own author- ity only. I/l'IiI. that the defendant might he siKil on such contract seiiiirately frcm Martin. W'ark v. Curtis. X. joi. .Vi'r also Pui.vcir.M. and SritETV. III. l.IAIULITV r.V EST.)I'1'EI.. After Dissolution — SHrctysliii\] — Uy agreement of dissolution, one ptirtner was to pay all the liabilities. .V creditor, aware of the agreenieni, gave time for payment to this part- mr. Held, that the other partners wert released. Miiuroc v. O'Xfil. I. J4;, Holding Oneself Out as Part- ner. |—.\ction against A., B. and C ,-i> members of C. & Co.. for money had and received to tlie use of the plaintiff. Jii truth I!.. C. vV X. were the partners. .\. had, to tiie know- ledge of B.. but not to the knowle.lsjc of C. held liimsclf out as a meiiihu- of the firm. JItdd. that a verdict against A., H. and C. was right. Tlitil X., not Ix- iiig a party, was an olijection tlia; could lie taken Iiy a |ile;i in ;ibatenu!i: inly. Caiiwroii y. Caiiwroii. Ill, ,^^|^ After Retirement — Business Xaiiie — Xotiee to Creditors — Elee- tion. I — The defendant carried on business under the style of Rowe & Co. She sold to her husband, stipi- lating that the name of the iu'n sh.ould be changed, who contitiikd the business under the style of .V. Rowe & Co. Before, as well as after. the sale, tlie husband was the actual manager of the business, and lieyoiiil the change of name, there was noth- ing to indicate a change of owner- ship. The defendant had dealt with !.it 516 that the nic'iu in unis, of had 111) usl' his iig It, of luitY had (lefend- author- night he eparately :, X. _'oi. iL"i;ktv. I'l'EI.. rclyshit.] Vion. one liabilities, greiinom, this part- nors wori' il. I. -M?- as Part- p. and f.. ir iiiiiiK-y >t the X. were ic kiiow- nvledge nicnihcr ist A., 11. not 1h- nioii that lialcnu'iv. Ill, ,>o<. rs — Elcc- rried on Rowe ^ ml. stipu- the ^ tirni continiK'd e of .\. II as after, the actual id VioyOiid was nolh- f owner- dealt wuh )1< PATENTS FOR LAND. 518 vU le plaintiffs, and her husband con- lUied the account, having agreed to ay the liabilities of the old business. :i an action for the price of goods ilivercd by the plaintilYs upon the iders of A. Rowe & Co, — Held, that defendant was not liable. The defendant's husband, after con- nning the business for some time. •M it to The \V, T, 1'. & P. Co.. and !;> Company agreed to assume and ■av the liabilities of Rowe iS: Co. 'ending this action, the plaintiffs re- '\ered judgment against the Com- :Liiy for the amount here sued for. //(•/(/, that this judgment was evid- nce of the election by the plaintiffs n look to the Company for the old a!)!. Ricl'.ard v. Rowe. I\'. lu. After Retirement — Tort— Costs. ] A partnership was dissolved, but Judissolution was not registered. One f the iiartners continued the busi- i-s under the partnership name, and ■^nmitted a tort. Ifclil. that the retiring partner was ■. liable, there being no evidence ''■:A. he consented to or knew of the i.tiiuiance of the firm name. Phiin- !V\ claim being small, his costs were :'.<-d at $50. I-Uirt v. Clarke. V. 150. IV. Actions for Dissoll'tiox and ACLDCNTING. Costs.] — Usually the costs of a ..rtiiership suit are paid out of the -sets ; that is what remains of the .'itnership property after payment of 'Ills, including the balance due to !\ of the i)artners. Where the as- ;■> are insufficient for the payment f costs, then the deficiency must be "rue by the partners in proportion " their share of the profits, Curran (. 'cj;-(\v, I\^ 450, r.ssign a judgment obtained by the t'lrni? lloekiii v. iriiellanis. \'I, 521. See also Iniwnts. \'. Powers After Dissolution. FoweT3.]—Q lucre — Can one meni- r of a partnership after dissolution PATENTS FOR LAND. Prima Facie Evidence of Title. | — Where the bill alleged a patent, and ;isked that certain deeds to the de- fendant should be set aside a^ clouds ujjon title, and the answer prayed, by way of cross relief, that the patent referred to in the bill niiglit l)e set a.-ide as a cloud upon the defentlani's title, that no proof of the jiaient was necessary. That a patent from the Crown is prima faeie evidence of title. If it be desired to set up title tlirotigh a imrciiaser from the Hud- son's IJay Company as against a pat- ent, evidence must be given to bring ihe case within The Ruiiert's Land Act, iS()S, (Imp.). Pritehard v. llaiuK'er. I, ~2. Setting Aside _ Improvidence — Umiiestead — Pre-emption. \ — The plaintit'f made a Iinniestead entry for a north-west quarter .-ection, and pre-empted the adjoining snuth-west (piarter section, lie never went into piissession. but resided continually (111 another lot. The defendant made an entry for a lot and took possess- ion, l)ut on disctnering that his lot was already taken up, the Crown gave him another lot in lieu of the one for vhich he made the entry. Me sub- se(|uently abandoned the second lot. and m;ide an entry for the land in (|uestion. viz.. the south-west (|uarter section, for which the plainiiff had made a iire-emption entry, furnish- ing the necessary i)roofs ii> the Crown, and went into possession and made improvements. The plaintiff then claimed to buy the (piarter sec- tion from tiie Crown, and located thereon a Military Bounty Warrant. Tlie land agent made a report to the Minister of the Interior, upon which the patent was issued to the plaintiff, the defendant's entry being rejected ou the groinid that Ik had already abandoned two entries, and that the m 519 PATENTS FOR LAND. r)20 plaintiff's entry remained uncancelled on the hooks. Held, that the plaintiff's patent was issued through error and should he set aside: fur (i) the plaintitf not having eoniplied with the statute, his hi,ineste;id entry had heen forfeited, and (lid not require cancellation, and the pre-emption right was forfeited with it; (2) the defendant had in fact abandoned but one entry (the second entry having been substituted for the first) and had the right to make an- other entry, and having entered for the land in questinn after the plain- tiff's forfeiture look priority 'ver the plaintiff's aiiplication \o ;■ e the land; (3) the defen 'ant ,f, neei in possession and impro- le iid in good faith at the time f u.e uiain- till"s application, had acquired rights which the Crown shmi'd not have igr.ored in issuing letters pat "^ for the lands. fanner v. Livin^-ifnn. T. W., 233- Reversed, V S. C. R., 221. Setting Aside in Part — Purchas- er for I 'alnc — Laches — Estot>l^cl by Former Suit — Cross-Relief — I ivi providence Without Fraud — ['re- suniption.] — i. A patent may be good in i)art and bad in part, and may be set aside so far as it relates to certain of the property included in it. 2. The plea of [)urchaser from the patentee for value without notice is of no avail as against the Crown. In such case the maxim applicable is JJebeo digniori and not Potior est conditio defendentis. 3. The plea of laches is no defence as against the Crown. The Nullum Tempus Act, 9 Geo. 3, c. 16. is not in force in this Province. 4. In a former suit, in which the same portion of the patent was attacked upon the same ground, the relator in this information was plaintiff, and the Attorney-General was defendant. The bill in that case was dismissed, but such dismissal was held to be no estoppel as against the Attorney-General in this infor- mation. The Attorney-General in the former case could not, under Gen. Order have prayed cross-relief against his co-defendants. In any case it was not obligatory upon him to do so. 5. A patent may be set aside upon the ground of improvi- dence, although no fraud is char^cil against the patentees. 6. The pre- sum|)tion against error in a Crown patent is not so strong as in an nr- dinary deed between : abject and sub- ject. 7. In order that a patent may be set aside it is not necessary to sliow that some person is entitled to the land. It is sufficient that there existed claims or material facts, wl'.ich. if present to the mind of the Crown, would have intluenced it in dealin.g with the land. 8. It i> not an answer to a charge of imi)ri'\i- dence and mistake that the Crcwn had in its possession documents i wliich disclosed the claims or niater- j ial facts, if these are shown not to } have been present to the mind of the I official when granting the patent. "he xlttoruev-General v. Fonseca. V, . 173 I Re.cr.sed. XVII S. C. R.. 612. I Patentee Declared Trustee.] _ I Where a patent is issued in error, through the false and fraudulent re- presentations of the patentee, he may lie declared to be a trustee of the land for the party legally entitled thereto, Keatin}; v. Moises, II. 47. Adjudication by Crown.] — S. en- tered for a homestead and pre-emp- tion, and subsequently by deed con- veyed to A., through whom plaintiffs claimed. Before the patent was is- sued the defendant made application for the same land, alleging that S. had not complied with the require- ments necessary to entitle him to the land. Upon the report of the Land B(.ard, the Minister of the Interior cancelled the entry of S., and allow- cfl the defendant to be entered for the land. The bill prayed that a pat- ent from the Crown granting the lands to plaintiffs might be issued, and that the entry made by the de- fendant should be set aside. Held, that the Court had no juri- diction to grant the relief prayed. Crotty V. \'roonian, I, 149. See Recistrations ; Recitals ; Sale OF Lands, III; Ejectment; F.vi- nENCEj VI ; Pleading^ II, III. 521 PLEADING. m PAYMENT. By Authorized Application of Moneys.] — A conlract for work and labor contained a proviso that the iiiiployors niiglit retain tlie wliole or ;iiiy part of certain contract moneys :i:i(l iiay .he wages of the contractors' Mili-cnipioyecs, and for sui)p!ics for lini and iiis men. Tiie contractor .M;cd, and the employer dennu-red on tiic gronnd that the declaration did I'.nt show that the defendant iiad not ; pplied the moneys earned in accord- ance with sncli proviso. Iliid, that the proviso in cpiestion \",as merely for a particular mode of [layment in discharge of the obliga- tion, and if the defendant had paid ii! that way, lie should have pleaded it. U'arlc V. Curtis. X. joi. By Cheque — Pislioiinr of Cheque -I leading.] — Defendants, lieing in- debted to plaintiffs, scut them the clicque of B. for a portion of the amount. Subsequently the plaintiffs rt wliii-li ns wbai Uv oritt- rty to an iH'iit. al- -c'd that his co- liartjcil ■o's von- If. ■ould iv't Atoniry- Thc hill having certain lands of the plaintiff, and a certain award liaving been made, an agree- ment was come to whereliy the City was to give certain other lands and a certain sum of money for the land of the plaintiff. Held, that there were not two op- posing claims alleged, and that no part of the hill was demurral)le upon that ground. In such a case tiie Court ])eing of opinion that the agreement was proved and the award gi.od, and the City l.eing unable to give title to its land, a decree was made for payment to the plaintiff of the amount due upon the footing of the award. U'rii^lit v. li'iiiiiipci;. Til, ,'■40. Prayer for General Relief.] — Rc- luf which may be Dbuiincd. /'(/_v \. Riitlcdiic XII, jyo. Multifariousness — , / ,■ r n u n / .':^.iiiist One iK'jciidant and Injiinc- li'iii .li^aiiist .liiollicr.] — The hill ii'iil iJrayed for an account against 'i' I'endant .S.. payment of the ammmt v\l;ich might be found due the plain- iitT>, and. in default, a sale of certain .liattels upon which they claimeil a n^ht to possession until payment. It alleged that the defendant S. had uiven a mortgage tr* the defendants. til.- I. Bank, upon the chattels, and liiayed an injunction against the i':;nk, tn restrain it fmm taking pos- -< --^inn nf and selling the chattels. Held, the demurrer of the defend- ants, the I. Hank, for mnltifarious- ii^ -s rmd want of efpiitv. was .alhiwed. (;',.)•(/ V. Sliort, I. 3_'8. Multifariousness — .Idininistra- !^"ii (if I'.sliUr and CanccUatii^n of .' :-si;^iuncut by Executor.] — A bill is •■■■\ multifarious whicli iirays adniin- Mration of an. estate and also the i.incellation of an assignment made !■}■ the executor of a portion of the r-,;ate to some of the defendants. ( ' /(■ V. Glover. i6 Gr. ,^02, followed, ■'ri'iiteuae v. }forrice, III. 2\. Multifariousness — OlKUruction I pan Tieo Street.^.] — r. There is no rule on tjie subject of nuiltifarious- nr'js of universal application. Each ; i"-t be decided by a consideration of what will be convenient under its particular circumstance. 2. .Although defendants have several and distinct rights, a demurrer for muItif;irious- ness may not lie. .v Where an infor- mation was filed to remove obstruc- tions to two intersecting streets against \\.. who owned the cnrner lot. and his lessees atid mortgagee, some of whom were iiUerested in one fi'i'Utage and some in the other, ;i de- murrer for multifariousness was overruled. Atlorncy-General v. ir right. III. 10". Multifariousness — Distinct Phiin- t'lf.^.] — A number of creditors of defendant M. assigned their claims to defendant S., so that he might sue upon all in one action at law. S. ex- ecuted a release of the..^e claitns to M. The creditors sought to set aside the release and to prevent M. from setting up the release as a defence in the action at law. The p.laintiffs al- leged that it had been i)rocured by M. in collusion with S., with know- ledge of S.'s position, and with the i' tent and design of defeating and defrauding the plaintiffs. The al- leged release was set out verbatim in the bill, and puriiorted to have been executed uikKt seal, but there was no specific allegation that th.e release liad been executed under seal. The bill also asked for jiayment by M. of the plaimift's" several claims. Held, that the bill was not multi- faricius. P/'iigan v. MUclicll. IX. 477. Multifariousness — Setting Aside lu-ed and I'.'i!!.] — A lii'l is not neces- sarily multifarious because it seeks t'l set aside a deed as atrainst one de- fendant and a will executed by the ■-ann' person in favor of another de- fendatit. when she latter relief is ti'erely incidcnt.al to the former, and the defendants liad set up the will as ;i bar tn the nlaintiff's claim. \\'ris,ht V. JezeelJ. IX, 007. Multifariousness — F.ireelosure and Setting .Iside Tax Peed.] — The plaintitt's claim was for foreclosure i>f a mortgacc made by the defendant, O. C. Rutleflge .and pos-^cssion of the lan.d. His wife, who had, before w 527 PLEADING. 528 the making of tlie mortgage, purchas- ed the land at a sale by the Munici- pality for arrears of taxes, and one Lawlor, who, having purchased the tax sale certificate from (jne McCub- bin, to whom it had been assigned by Mrs. Rutledge, had afterwards ob- tained a deed from the Municipality for the land, were made parties de- fendant in the action. The statement of claim made a number of allega- tions with a view to showing that the l)urchase at the lax sale was invalid as .igainst the plaintiiY or generally, and claimed that the tax deed to Lawlor was void, but did not formal- ly ask to ha\e it set aside, though it concluded with the general prayer for further relief. Held, an objection by Lawlor to the statement of claim for multifari- ousness on the ground that a separ- ate action should be brought to set aside tiie tax deed to him could not succeed. Co.v v. Barker. 3 Ch. D. 35Q; Cliild v. Steiiniiig, 5 Ch. D. 695. The objection should have been to the rejoinder of otiier causes of ac- tion to an action for possession of land, without leave as required by rule 251 of The Queen's Bench Act. 1895, if in fict no such leave had been given. Day v. Rutledge. XH, 290. Affirmed. XXIX S.C.R., 441 ; sub. no III.. Laii'lor v. Day. Striking Out.] — Sec Judgments, IX. See also Pledges. u. III. Pleas and Defences. Abatement and Bar to Same Count.] — After a plea in abatement had been filed and issue joined upon it, pleas in bar were, by leave, added. Held, that the plea in abatement was waived: and after trial of the is- sues it was disregarded. Shore v. Green, VI, 322. Admissions — Inferential — Pat- ent.] — The bill alleged, as the plain- tiff's title to the lands in question. tlie existence of a patent and certain deeds. The answer, althnugh not expres.sly admitting the patent and deeds, charged that the latter were procured by fraud and deception ; that they were never read over to the- grantor; and that the parcels were not those intended by the grantor tu be conveyed; and prayed, by way of cross-relief, that the patent and the deeds set forth in the bill should be declared to be clouds upon the de- fendant's title. //('/(/ (aftirming the judgment of Wtilbridge. C. J.), that the i)atent and deeds were admitted l)y the answer. I'ritchard v. Hanover, I. 366. Joinder to Pleas of Release and Counter-claim.] — PlaiiuilT joined issue upon pleas of release by deed tiiid counter-claim. Held, that a joinder was appropri- ate to such pleas. Elliott v. Ann- strong. \l. 255. Plea Bad as to Part — Demurrer to Part of Plea — Discontinuance — .Iniendiiient — Costs.] — If a plea i> bad in jiart, it is bad as to the whole, and a demurrer should be to the whole plea, otherwise it will work a discontinuance. Sfarliain v. Carley. Vlll. 448. Sec Robertson v. Winnipeg, VI, 483. Sevei-al Pleas.] — Under general rule 5 of the Court of Queen's Bench for Alanitoba any number of pleas may be pleaded together without a Judge's order. Allen v. Dickie, II, 61. Sevei-al Pleas — Payment and Non Est Factum.] — Held, i. To an ac- tion upon a covenant in a tnortgagc, a plea of payment into Court may be joined with a plea of non est factum. 2. In such an action an equitable plea as to the amount sued for, except a certain sum, and as to that sum, pay- ment into Court was struck out as embarrassing, not being contemplat- ed bv the form of plea prescribed liv the C. L. P. Act. Pratt v. Wark. 11, 213- Purchaser for "Value 'Without Notice.] — The plaintiff's claim was H 529 PLEADING. 630 for foreclosure of a mortgage made by tile clefendant, O. G. Rutledge, and possession of the land. His wife, who had, before the making of t!i"e mortgage, purchased the land at a sale hy the Municipality for arrears of taxes, and one Lawlor, who. hav- ing purchased the tax sale certificate from one McCubhin, to whom it had been assigned by Mrs. Rutledge, had afterwards obtained a deed from the Municipality for the land, were made parties defendant in the action. The statement of claim made a number of allegations with a view to sIkiw- ing that the purchase at the tax sale was invalid as against the plaintiff or generally, and claimed that the tax deed to Lawlor was void, but did not formally ask to have it set aside, though it concluded with the general prayer for further relief. Held, I. To entitle Lawlor to claim [irotection as a purchaser for value without notice of Mrs. Rutledge's fraudulent conduct he should have pleaded this as a defence and given evidence of it, although the plaintiff had not in his pleading alleged notice to Lawlor of the concealment by Mrs. Rutledge. McAllister v. Forsvtii. (1885) 12 S. C. R. i; Attorney-Gen- eral V. Wilkins, (1853) 17 Beav. 285, followed. 2. As Lawlor had neither pleaded nor proved such want of knowledge or notice, the plaintiff was entitled to judgment without being called upon to prove any notice to Lawlor, the Court not having been asked for relief on the ground that suchdefencehadbeen omitted through any error or slip and that it could be successfully raised, and there being nothing to suggest that the defendant had been taken by surprise or misled in any way. Day v. Rutledge, XIL 290. Affirmed, XXIX S.C.R., 441 ; sub. v.om., Lawlor v. Day. Statute of Frauds.]— The objec- tion of The Statute of Frauds can be raised under the defence of never in- debted ; and can be insisted on be- fore the Appellate Court, although it did not appear whether it had been raised at the trial or not. McMillan v. Williams, iX, 627. Puis Darrein Continuance.) — i. Leave may be given to withdraw picas, and pleatl de novo to enable a defendant to plead matter arising subse(|uent to the last pleading, with- out thereby waiving his former ple.as. Smith V. Strange, I, loi. Embarrassing Pleas — Striking Oiit.\ — A false plea cannot, merely on account of its falsity, be assumed to have been filed for embarrassment or delay if there be other valid pleas upon the record. The rule as to strik- ing out embarrassing pleas applies to .'.t'lirmative pleas. It is not necessar- ily unreasonable that a defendant should put a plaintiff to the proof of his case. Upon a motion to strike out a plea, although the plaintiff give f>riuHi facie evidence of its falsity, the defendant is not bound to swear to its truth in order that it may not be struck out. Although there niay be direct Manitoba authority against the validity of a defence, the plea will not merely upon that ground be struck out. Woods v. Tecs, V, 256. Embarrassing Plea — Striking Out — L(u7(i'.j.] — An application to strike out a plea as embarrassing should be made promptly. Where plaintiffs had allowed nearly two years to elapse, and had demurred to the plea, and obtained several orders for extending the time for demurring and replying, and for examining de- fendant on the plea — Held, that an application to strike out the plea was too late, and that the plaintiffs, by their conduct, had waived any objection to the form of the plea. British Linen Co. v. Mc- EiK.'an, VIIL 214. Embarrassing Plea — Striking Out.] — Where pleas are clearly bad they should be struck out. and the plaintiff not put to the expense of a demurrer. Bank of B. X. A. v. Munro, IX, 151. Embarrassing Plea — Striking Out — Equitable Defence.] — The de- fendant's 13th plea alleged that the promissory notes sued on were made by the defendant for the accommoda- tion of the payees to the knowledge IT" .1- ' ■< ,' ' '1 m ■. l^ly. &. 631 PLEADING. •■.32 of fill' plaintiffs, and that the plain- tiffs wuri.' iiiilihti'd ti) the payi'cs in certain sums of nioiu'v whicli tiic dc- fendant and the payt-cs desired to set off aRaiiist tile i)laintiffs' claim. Tlie payees had indorsed tlie noles to tiio plaintiffs, hut were not parlies to this action. Held, tiiat this could only he a de- fence in e(|uity. and should have been introduced with the words, " for a defiiice on e(|uital)!e (ji^ounds," in accordance with The Administration of Justice Act, s. ii, and as it was not, it siiould he struck out. The 14th plea was similar to the i.^tli, and commenced with the state- ment that it was pleaded on e(|uit,ahle Kriiunds. but in addition to the state- ment (if the set-off it contained alle- Kalioiis relating to a deed or agie'' ment that had been made between the p.iyees ;ind the iilaintilTs which raised issues altoRetber collateral to the main (|uesti(Mi of tlic set-off. //(•/(/, that such plea in such form should he struck out as -mbarrass- ing. ['iiioit Blink of Canada v. .1/c"- Bcaii. X, _•[!. Embarrasing Plea — Jhircii^n /iul,i;iiii-nl — S!riL-inLi Out Picas Pis- posed of in (.)rii;iiial .let ion.] — Ac- tion upon a judgment obtained in Ontario for goods sold and delivered to a firm, of which defendant was a mcnd)er. The defendant defended the original action upon the ground that prior to the sale of the goods the defendant had left the hrm and had so notified the plaintiff'. .\fter tlie verdict had been entered for the plaintiff, the defendant moved in Term for a new trial, upon the ground that the verdict was against law and evidence and the wciglit of e\idencc, but his motion was refused and judgment was entered for the plaintiff. In the present action the defendant pleaded the same defence. On motion to strike out the pleas upon the ground that they delayed and embarrassed the plaintiff — Hiid. that the pleas should be struck out, and the plaintiff permit- ted to sign judgment. Gault v. Mc- Xal'b, I, 35- Embarrassing under Queen's Bench Act. | — Several paragraiilis of the defend.'int's statement of de- fence were objected to by the plain- tiff as raising defences which were not good in law. and a motion was made to strike them out under rule .?|H of The Queen's Bench Act. iHg;, which provides that the Court or a JudK'e i;iay, at any stage of the pro- ceedings, firder to l)e struck out 01 .amended any matter in the pleadiiiiis which may be sc;uid;ilous, or whicli may tend to pri iudice, embarrass or delay the fair trial rif the action Held, that, as no pro\ ision is made in the Act for a pl;iiiitit'f demurring to the statement of defence, ai'y pleadings which would have been held bad on demurrer undi'r the foriiior pr.actice should now be struck out on ai)i)lication, or in a proper case ■amended on terms. The 5tli and 6th paragraphs of the defence alleged payment, but oniitlrd the words " before action," and leave was given to amend these prna- graphs; but the other par.agraplis oh- jected to were all held to be bad in law and struck otit with costs, to be costs in the cause to the plaintiffs in any event. Aitna Life Insurance Co. V. Sliarf^, XI, 141. Corporations — Pilini: Answer U'itlhiHt Signature or .^eal of Cor- f'oration — Consent of I'laintitf's Si>- lieitor Rdpiircd.] — The Court has no jurisdiction to dispense with the sit.'- iiatnro of a natural ]ierson or the seal of a Corporation to an answer in ;in e(|uity suit without the consent of the plaintiff, and such consent must eith- er be given by plaintiff's solicitor in writing or by counsel before the Court. Counsel for the plaintiff, in a suit in another Province, had agreed that the ijlatntiff would consent to the til- ing of the answer of the Companv in this suit without the seal of the Cor- poration. Ifeld. that this would not dispense with the consent rccpiired by the practice of the Court, and the appli- cation of the Company to have their supplemental answer filed without the corporate seal, the plaintiff op- mi 533 PLEADING. 8M [losing the same, was dismissi'd witli I'iists. Ch(irlrlu>is v. Crtut Xni-tli U'rst Ciiitnil Raihciiy Co.. IX, 44S. .'■ '^ii.i.s AND Notes, X, ^OKI'dUATlON-.S, IX (ll). IV. REI'I.tCATtON AMI 'Rf.I'LY. Departure.] _ To ;i dcclaratinn in o iiiraci ,ii^;iiiist a l' the liniitatinns. Upon '1< 'r the repliciitinn w;is — bad. Hrown v. Flic Cana- r'icii I'acific Knilway Co., IV. 396. Departure. I _ If a connnon car- litr's contract provides that lie will rot, in case of loss, pay more than a ll rtain smn, this limits the amount of the liability only, and need not 1)e set out in the declaration: but if it pro- \ide that he will not pay anything upon goods which exceed a certain vjilue, this limits the liability itself and must be alleged in the declara- fiMH. Therefore, where to a declar;i- iion against a carrier in coiUract. not lileging any limitatiosi, the defend- ants pleaded a term of the contract, •v iz. : that except as to $100 there was .1 siu'cial contract, " that the baggage ' :iliility of the defendants should be ' liiiied to wearing apparel not ex- 'ivding !?ioo in value; " to which the l'!;iintit"f replied gross negligence. //('/(/, th.at the replication was a departure and bad upon demurrer. .V,-,„/./.. _ That The Consolidate.! Railway Act, 1879, s. 25. s-s. 4, prob- .ilily introduces an implied term in ci'iuracts to which it is applicable. Slunv V. Canadian Pacific Raikvay Co., V, 334. Departure — Kcl^lication In.stcad (if .liih-iidiiicnt.] -- When a plaiiUilT is not entitled to relief on the case made by his bill, but may be .0 en- titled on facts set up or partly set up in the ,inswer, he shoidil amend the bill instead of making admissions in the replication. The plaintitifs sought relief at the hearing on a case or state of facts different from that set forth in their bill of eomplaiiu, but which was part- ly set ll]) in the answer. In their re- plicatioti they admitted these allega- tions in the answer, but did not amend their bill, and brought the case oil for hearing. Tlie evidence failed to eslabli>h the case made by the bill, and the plaintitYs did not ask k'ave to amend. Held, without deciding whether the |)lainiiffs were entitled to any re- lief on the evidence submitted, iiat the bill should be dismissed with ccsts unless the i)laintilTs wished leave to amend, which they might have on pavment of costs. Boxlc v, Wilson, IX, iSo. V. De.murreks. Signed by Counsel.] — On the equity side r)f the Court demurrers must be signed by counsel. Tlw Mc- Clarv Maniifacluriuii Co. v. Wink- ler. Vll, 127. Argument— /v'i'/,vr)/cc to Slatiitcs.] — The rule that, upon the argument of a demurrer, only the pleadings can be lof>ked at, does not apply where statutes which alTect the fpies- tion raised have tn be considered, 'flic School Trustees for the I'rotcs- taiit School District of the City of Winni/^e.ii v. The Canadian Pacific h'aihi'ay Co., II, i6,v Argument — Whole Record Con- sidered — Defects in former Plcad- '"^•1 — On the hearing of a demur- rer the Court will look at the whole record and not merely at the particu- lar iileading demurred to: ami ordin- arily, although such pleading be bad 1 635 POWEBS. in law. hut tliat to wliich it is pleaded also l)c bad, jiulRineiit will 1k' given against tlv party dcinurrinp;. But when the same pleading wliieli is bad, and is denuirred to. is pleaded at or.ce to two former pleadings, one of w.hich is good and the other ])ad in law, judgment will be given in favor of the i)arty demurring, notwith- standing the defeet in his former pleading, for the pleading demurred lo being b;id in part must be taken as whnlly bad. lirDz^'ii x. Canadian Pa- cific kaih>.'ay Co.. Ill, 496. Argument — Before or at Trial.] — The proper jiraetice. under rules 426 and 440 of The Queen's Beneh Act, 1H05. where a denuirrer is incorpor- ated in the statement of defence, is to apply for an order of a Judge if it is desired to have the demurrer heard before the trial of the issues of fact. And without sttch order the matters of law should l)e disposed of at the trial along with the issues of fact. In the present case the demurrer bad been set down for bearing on a Wednesday, without a Judge's order, but had been heard and overruled. Held, on a|)peal from the overrul- ing order, that, as the defendants could not now argue the demurrer at the trial, the appeal must be proceed- ed with. Foster v. Municipality of Lansdoii'ue. XII. 42. Ore Tenus.j — A demurrer ore tcnus can be urged at the hearing up- on the ground of want of erpiity, but rot for multifariousness. Real Es- tate Loan Co. v. Molesxi'orth, III, ti6. Ore Tenus.] _ A demurrer ore teniis will not be allowed, urdess there is a demurrer on the record. D'riiilit V. Winnipeg, III, 349. Plea to Several Counts, One of Which is Good.] — When a plea is pleaded to several coiml< or Ijreach- cs. and is bad as to some of them up- on demurrer, it is bad altogether. It cannot be construed distributively under the C. L. P. Act. Robertson V, The City of Wimiipeg. VI, 483, See Sparhain v. Carley, VII, 448. 536 Leave to Plead After Demurrer Overruled — Costs.] — Demurrer l.i the declaration was overruled. De- fendants appealed, and again failed. They then applied for leave to plead, which was granted, but only u|ion condition of first paying the costs of the demurrer and appeal. Touss- oinl V. Thompson. V, 53. PLEDGES. Deposit of Bonds — Collateral Se- curity — Multifariousness.] — As col- lateral security for the iniyment of a certain acceptance, the defendants de- posited with the plaintiffs certain of the defendant's mortgage bonds, with power of sale in case of default. .After default and recovery of judgment up- on the acceptances, plaintiffs filed their bill on behalf of all holders of similar bonds for a receiver and f;ir sale of the railway. Held, per Main, J.— 1._ That the Ugal title in the bonds did not pass to the plaintiffs, but tliat they were pledges merely. Their remedy was a sale of the bonds, and not a sale of the railway. 2. That the bill was multifarious in basing tlie right to a receiver upon plaint itt's judgment, for in that the other holders had no in- terest. I'pon appeal — //(■/(/, that having regard to the surrounding circumstances, the plain- tiffs were not jiledgees of the boniN : and that no obligation arose ujvin them until after sale of them by the plaintiffs under their power. West Cumberland Iron t'r Steel Co. v. Jl'inninpei; & Hudson's Ba\ Raihcav Co., VI, 388. POWERS. Construction— 6'('»ii'ra/ or Limited — li.vecutio)i .igainst Donee of Pav- er.] — R. G., being the owner of cer- tain lands, and M. G. (his wife) be- ing the owner of certain other lands, 537 PRACTICE. 588 tlicy joined in a conveyance of tiieni t') a trustee. Tiie conveyance (jjiul July, i8S4), recited tliatit had been iigreed to settle tile lands " for the btncfit of tlioniselvcs and their chil- ilicn," as thereinafter appeared. The trtsts declared were to hold to such uses as R. G. and M. G.. or tiic sur- vivor of them, should by deed or will aiip.iint, and secondly, until and in (k fault of appointment to the use of M. G. for life, and after her decease to the use of R. G. for life, and after the decease of both, to the use of their children in equal shares. By a >nbse(|uent conveyance (iSth Noveni- licr. 1SS5). R. G. and M. G. appoint- cil and conveyed tlie lands to R. G., upon the following trusts : To the use of the children, witli power to R, (1. to appoint aiunng them : in def;iult of appointment and after the death (if R. G. to M. G. for life, with imwer in her to appoint among the children; and in defaitlt of such .appointment to the children then living. Bv deed (Sih February, iSS.S). R.' G. and M. (; appointed and cciveyed to P., one ' f the children. //("/(/, I. Tliat the power of ap- I'liintment in the tirst deed was gen- vinl. and not limited as to its objects. I 1 the children. j. That the second deed, therefore, was a good appoint- ment and vested the legal estate in R. (k, and the equitable in the children, nith power to transfer this latter es- tate to one or more of the children. ,;. That executions against R. (i., be- i\>een the tirst ami second deeds, did ;i"t alTect the* title of P.. the grantee imiler the third deed. Re Patterson. V. -74. Construction — Gtiicnil or lAniit- ,il.] — A power of attorney was given liy defendant to her liusband on a h rm supplied liy a Bank; it contain- nl power and authority to do for de- ■' ndant. and in her name, five separ- ■e and distinct classes of business, •iiid proceeded, "and further, to m;in- . uo and transact all manner of busi- ress wliatsoever with the liranch of t'lc Bank of Britisli North .\mcrica ill \\'innipeg, their luaiiager or other "'hcer duly authorised." The note -ued on was signed by defendant's husband under this power. Held, that a clause in the power. " for lue and in my name to make, draw, accept, transfer and indorse in favor of all parties whomsoever, all promissory notes, hills of exchange," etc., conferred a genera! power that was not limited or restricted by tlie "-ubsetptent clatises that referred spec- ially to the Bank. / 'die v. Ruilier- I'or'iL \TII, 168. See Wii.t.s, III. PRACTICE. T. l)r^(I.AK.\TIOX.S AXIi .St.vte- .mi;n"ts. II. 1 )i;i ENci-; .\\i) Pleas. III. DisMissiNc; Actions. I\'. JMI^TIIEk 1)IKI-:CTI0NS. \'. IlvRl-Cl I..\1UTIES. \"!. I.I".A\K TO PKOrEEl). \TI. Notices oi" .Motion. \'in. Notices of Re-I Ieaiuxg. IX. Notices oe '!"ki.\i.. N. Okdeks. XI. PaRTK 1I.,\RS. XII. SeCoXII Al'lM.hWTinN'. ?'. III. Seiumce. X I\'. Settixc; Aside. X\'. St.w oe Pkoceeiii.\(;s N\T. .'^roi'-OKiiEus. N\'II. Trial. X\'III. Venle. I. Declaratioxs axd Staeme.xts. Not Filed Within n Year— Ifnit-- (•/•,] — The failure to file declaration i: 'i^-'\ f-i. 539 PRACTICE. 54u :.4i williin a year after the service of the writ is only an irregularity and not a nnliiiy. Such an irregularity may be waived by the defendant applying for an extension of time to plead. Imperial Bank v. G lines, X, 317. Leave to Proceed — Scrz'icc of Order.] — A declaration was tiled without first filing or serving the or- der for leave to proceed. Held, there is no established prac- tice, and an objection on that ground cannot be given effect to. The Em- pire Brrwiii,i; & Malting Co. v. Uar- ley, \'II. 410. II. DeKKXCES AM) I'leas. ((0 Leaz-e tu [•'He. {b) In I'erson. — < (((.) /-('(/: e to File. Mistake of Solicitor.] — A Juilge has no discreiion to shut out a de- le idani frfim a bona fide defence, or a !)laintirt' from a right luma fide to priss a claim upon a mere slip of a party or his attorney, unless other rights intervene, or tliere are aggra- \ating circumstances. The discreiion i)f ; Judge as to admitting new pleas noi interfered with. Sniitli v. Strani;e. I. loi. (b) hi Person. Entitles to Same Notice as So- licitors.! — Held, where a defendant appears in person he is entitled to re- ceive the same notice of proceedings being taken which a solicitor re- ceives. Geddes v. Miller, I. 365. See also Bills and Notes, X. m III. Dismissing Actions. Want of Prosecution — Leave to Set Dirien — Dismissal at Hearing Plaintiff Being Unready.] — 14111 .\ugust, 1884, bill was filed. 30th October, 1884, bill amended by add- ing a large number of parlies. Janu- ary, 1886, case wa.-^ (jr ought to have been ri|)e for hearing. .\pril, hS.So. set down for hearing and pustpuncd. June, 1886, Set down and i)osti)0!u.Hl by plaintiff, defendant D. being a necessary witness and having left thv I'ro\ince, although subpanaed. Sep- tember, i88('), set down and postpon- ed, D. not having returned. Janu- ary, 1887, set down and postiiinud. I), not having remrned, and B., the ])laintiff's agent, also a necessary witnes.^, being absent, although sub- pfvnaed, and having neglected to at- tend upon an apiioiniment to take his exidence de bene esse. 31st March. iN87, set down, postponement refused, ;dihongli 1). and B. absent; D. ine:ni- while had been in the Province. 4th .\pril. 18S7. question of costs argued. 7tli April, 1887, B. returned to the city. I9lh April, 1887. defendan;s. by leave of Judge, notified plaintiffs that unless by this date decree agrii.'.] to. Judge would make decree. 25tli .\pril. 1887, ])Ctiti(in served for leave to set down anev,- for hearing, i'uli April, 1887, another sittings hvM. c'lse, of course, not set down. Me- fendants di'« form an ex- cuse for non-attendance upon stili- po.'ua. 3. The negligence of plain- tiff's s;iry the plaintiff may move to dismiss his hill without costs ; and the Court may -o order, where the investigation of doiditful (|uestions of fact is not n.ecessary to the decision. WcUband V. Moore. 11. i()3. For Non-Revivor — Ccs-Zi.] — Where one of several plaintiffs dies, the order is that the survi\ors do rc- \ive within a limited time, and in de- fault the hill is dismissed with co-^ts. in the case of a sole plaintit'f the I)ill ~ rlismissed without coe made use of for tliat purpose. Vivian \. Scoblc, I, ies- jarlais, IX. 278. VI, Leave to Pkoceeh. .Service of Order, |_A declar.ition was filed without hrst filing or serv- ing the order for leave tl;ins, IX, 310, Discharging _ Pozeer of Indite.] — Held, that, although it is usual for a Judge to review his own order only when obtained through mistake, or by unfair or fraudulent means, his power to do so extends (o all orders made by himself, however deliberate- Iv made. Tucker v. Yonnq, T .\V. 186. Discharging — Poxi'cr of JudRe.] — Held, that upon new material it is ii^ ^4 545 PRACTICE. 546 law lOt g'l faoo <>\ a tectiv" and ,^10. al tor ;r only Kf. or 1-., liis nrders icratc- T .\V. competent for one Judge to set asitle the order of anotlier. Xortli-U'i-stcni Sational Bank v. Jan'is, II, 53. Conditional Order — Xoii-fitlfil- nii-iit — C'M-/.?.] — PlaiiititY obtaitiotl an order to set aside a judgment of non-pros, upon payment of costs. Tlic costs not liaving been paid, the de- fendant moved to rescind the order and for payment of the costs of the I'urmer application. Iliid. tliat tlie former orde • ihould be rescinded, l)Ut tlie costs of it could IK it he ordered to be paid. Bailey v. I'lTticr, III. 670. Enforcement — Courts May Pis- r,\;'((n/. ] — The Court is ;iot obliged Id enforce an order, although it has Iccn made and has not been rescind- id. I-oiig V. U'innit^cg Jcz^'cllcrv Co. ix. 159. .S-i'i' also Ciirric v. Rapid City, XII. XI. P.\I P. R. loi, followed. Lout;, XII, 454. PRACTICE. 550 XIV. Skttixg Aside. Notice of Trial _ j),-i,ial of Ef- h-ctnc Service of .luy Ki„d.]—T\w plaintiif moved to set aside a notice I'l trial of an issue under The Real J'roperty Act. on the ground, among cihers, that it had been served on an attorney, who was not the attor- ney on the record; although ii had been served on the attorneys who then had the matter in haiul. and alxi '■n the acting Winnipeg agems (jf the attorney in Portage la Prairie, who had formerly acted for plaintiff in the IToceedmgs prior to the order direct- ir.g the issue. JhiJ. that to succeed in such a mo- '!"n the affidavits filed should ha\e lu-gatived every other possible mode "I good service under the rules and I'lactice of the Court, which thev did ii"t do. and the summons was' dis- missed with costs. Kerr v. Dcsjar- l-ns. IX. 278. Consent Order. j-An order made "li consent cannot he varied or set •■i-ule,^ except by consent, without showing some ground of surprise, iiii^take or fraud, or other ground ulnch would invalidate an agree- ment between the parties. JIarzrv v Croydon. 26 Ch. D. 249: .histralas- Kiii Automatic, Etc., Co.. v Walter \\. N., (1891) 170; Hiiddcrsfield Iniiikiii}; Co. v. Lister. (iSc);) 2 Ch -7,^. followed. Grant v. Mck'ee. XI. .'liid see SpEciric He.vds. X\'. St.w of Proceedings. eiJargement of the application and the entry of apiiearance. .\Jc.\augli- ton V. L'ol'son. V. .^15. Time of ]y[otion_r/;/.j/(/ Costs.] —An applicatum for a stav of pro- ceedmg>. until the costs of'a former action are paid, cannot be made un- til the defendant has appeared. Ezeart V. Uanover. \'\[l. 21CI Time tion.] — ceedings siine cause cannot he made before ;i.„-'^eH down for argument before the hull Court. Cnuiniins v. Con- .Kr.i^atioiuil Cliurcli. [\\ -i^j^^ XVIII. \-ENTE. Change of.) _ //,/ effect a s.ile. Tlie same person afterwards pur- cb.ased the property for $14,000, but through another agent. If eld. that the plaintiffs were not entitled to the full commission, and that the verdict of the County Court Ji'.dge, allowing half commission, should not l)e disturbed. Glincs v. Cross, XII. 442. Variation of Terms — Amount of Ciminiission.] — The plaintiff w;is employed by the defendant to sell for l.im certain lands upon certain terms, lie found a man willing to purciia-c upon less advantageous terms, field, that the defendant, havitiij accepted the purchaser and ratified the variation of the terms, was liable for the plaintiff's commission. The grounds upon which the finding of a Judge upon a question of fact will be reversed, discussed. An agent is usually entitled to commission upon the whole amount of the purchase money whether paid in cash or secur- ed by mortgage ; but where the own- er himself conducts a part of the ne- gotiations, a verdict calculated upon the cash payment was not disturbed. Il'olf v, Tait, IV, 5Q. Recovery of Commission by An- other.] — The fact of the recovery by another plaintiff of commission in ro- 553 PRINCIPAL AND AGENT. 564 spect of the same sale is ns inter alios ucia, and is noi in itself inater- Ihui^his \. Cross, Xll. 53,?. la II. Execution of .Agencv. Contract Under Seal in Name of Agents _/';■/„,/>(,/ Xot Liable] — i'iaintiffs, as assignees of W. & B.. declared upon a contract under seal made between W. & B. and M., whereby W. & B. aprecd to erect a certain building for M.. It was fur- ilier alleged that .M. was authorized by tile defendants to make the con- tract for theni in his own name as their agent ; that \V. & B. entered in- X(> the contract with M. as and being ilie duly authorized agents of the de- fendants: that the defendants duly .•;i'.thori/'cd all the work and took the lienctit of the contract and the work. L'pim demurrer — Held, that the defendants were not liable upon the contract. Aslidown V. Manitoba Land Co., III. 444. Carefulness in Making Con- tracts.] — //,■/(/, that the agent, in employing the services of an auction- , I 'i'rian V. Scoblc. I, 12,^. Carefulness in Making Con- tract — Contract Xot i)t Writing.] — The plaintiff, an agent employed ))y defendants to sell real estate, intro- duced a purchaser who had paid him a deposit and afterwards carried out the purchase at the price agreed on. Init with the principals direct. The agent did not procure the purchaser ttance. /■/('/(/. that he was entitled to some remuneration, though not to the full conunission payable in ca^^e he should Tirocure the purchaser's signature to a biiKhng contract, and his verdict in the County Court for the full com- n;ission was reduced on appeal to cne-half without co^ts. Hrongliton V. Hamilton I'rozidcnt Society. X, (xSj. III. PoWICUS OK .Vc.F.xT. Admissions by Agent. |— A prin- cipal is nut Ixiund by the statements of his agent, after the hapi)ening of the act sued upon, unless the agent lias authority to make such >tate- ments. Po:en v. Ler. 1\', 177. Previous Employment — Po:ecr of .Igcnt .ippointi'd to Receive Money.] — B., one of three execu- tors (the defendants), agreed to per- ii'it the i)laintitY to become assignee of a lease .granted by their testator; that the i)laintiff should be allowed to deduct from the rent the value of im- provements to be i)laced by him upon till' premises to the amount of $1,000; and that the rent should l)e increased by 13 per cent, of the amount of such allowances. The im])roveuients were iiK'.de. but the value was not deducted out of the rem. In an action against the defendants personally, and not as executors, a verdict was given for plaintilt. //('/(/. I. That there being no proof of a joint promise, the verdict was wrong except as to B. 2. That the receipt of rem by B. only showed tiiat he had power to recei\e the rent in iiioney. ,v That an agent authorized to collect a delit. can receive it in inoncv oiilv. I'aislcv v. Bainiatvne, n'. 255. Proof of Authority— .l/(j);(/.?('r of Conipany.] — The authority of a man- ager of a Company carrying on the brsiness of the manufacture ;md sale of farm utensils to pledge the goods of the Company for a present delit and future advances will not be as- sumed, but must be proved. Jones \. Henderson. Ill, 4,^3. Pledging Credit - Su[>plied with Cash When Agent - Receipt of I i^ 555 PRINCIPAL AND AGENT. o50 Goods by I'urcliascr.] — The dcfcnd- anls, grain dualcrs, empldytd (me B. to buy wheat for them at Virden. and supplied hiiu wiili ready money to pay for it. 11 tlien, with the know- ledge of the defendants, and du their instructions, made arrauf^ements with C, who h;ul ciiarge of an elevator there, to receive the wheat for them, to weigh it on receipt, and to give out receipts or tickets to the persons delivering llie grain, signed liy him as defendants' agent, showing names of purchasers, tpi.-uitiiy .and grade of whe.at, price and the total amount of ])urchase. These tickets were furn- islierl to R. by the defendants. They v.ere headed " fivain Warelxnise, \'irden," and h;id printed .-it the bot- tom the words "'.Ntkinson li: Co., i)er The custom was for f;irmcrs. on receiving thc'-e tickets, to take them to R. or his b;mkers and get their money. The plaintiff's claim was for SiSjS.So, the amount of two of these tickets, which were i)roduced and proved. C. proved that B. had told him the prices and grades agreed on with the jilaiiuiff. and this evid- ence not having been objected to at the trial, the majority of the Court In Id that it nuist be considered that the ])rices. grades and r|uantities were sufliciently "roved. The majority also Inld that the delivery of the wheat into the elevator luiist be considered as delivery to the defendants. Neither the plaintiff, who was pre- sent in Court, nor B. gave evidence : and defendants gave no evidence in proof of payment, except that they had supplied' R. with liu'ge sums of u'oncy to pay cash for any wheat he should buy for them. //■<■/(/ (Killam. J., dissenting), that the plaintiff could not recover, as R. had no authority to buy except for cash, and the defendants had sup- plied him with the cash. Per Rain, J. — There was nothing to show that the plaintiff had any reason to suppose that the tickets would be paitl by the defendants: and if plaintiff chose to deliver his wheat to R. without getting his luoncy for it. he did so at his own risk, and could not now look to the defendants for the money. It is dotibtful wheth- er a i)rinci|)ai would be lialile for the price of goods i)urchased by iiis agent on credit. when he had given the agent ready money to p,iy for them, al- though he had actually received and used the goods. I'alcv mi .li^cncv, \). 104. I'cr Killam. J. — i"he plaintilf's case was sut'ticiently proved, for the evid- ence showed tiiat the agent was auth- orized to buy on the \ery terms on v.hich he did buy, and tliat he was not to pay cash until after the deliv- ery of the wdieat. There was no e\i(lencc to show that he bought nii credit or that the iilaintiff w,!^ nnt entitled to deiuand his money iniire- diately on getting the tickets, as the property in the wheat p.'issed to the difendants upon delivery at the ele- vator. Bennett V. Atkinson. X, 48. IV. UXAUTHOKIZEn .v.vu Wroncfil Acts. Torts— .Vt-.iT//ai.;uv of Servant.] — .\ master is liable for a wrong coni- n-.ilted by his agent when such wroni^ is committed while the agent is act- ing within the scope of his authority. The defendant's son lighted a snuidtie near a stable to keep away inns- (|Uitoes from his father's horses. The lire spread to the stable and consum- ed some wheat of the plaintiff's storeil therein. The jury gave a verdict tor plaintiff, and the Court refused to set it aside (Killam. J., dissenting). Poi^'H V. Lee. I\'. 177. V. EsTOPi'EL, Ostensible Agency. Ostensible Agency to Receive Chattels.] — The defendant bailed a horse to the defendant to be returnee I to him at a certain time. Before tlu' time elapsed, the defendant, not re- (|uiring the horse any longer, return- ed it to IL. who was in the plaintiff- en-,ployment both at the time of bail- ment and return, and who told the m 557 PRINCIPAL AND AGENT. 668 <'.< iViidant that the plaintiff had sent ;iii Inr tlic liiir^c. II. \va< knnwii to ;lic- ine>s. In trover for the horse — llrlil, that the delivery to II. was a K"od delivery to the plaintiff. .\l)ont two months after the return ■ f the horse the defeiidaiU met the Iilaintiff and told him that lie had de- ii\ered it to II. The i)laintitf neither .■il'prdved nor di left in charge to take stock and wind- up the business and to obtain a pur- chaser for it. The firm name re- mained over the store, and there was iii> outward change. While so in cl:.'irge. P. ordered goods from the plaintiffs, their agent entering up the order in the name of P. & Co. After the goods had been delivered, defend- ant took possession of the whole stock, including the goods sui)i)lied by plaintiff, and eventually sold it. Before the sale, the plaintiff demand- ed the goods from the defendant, but was refused. In an action for goods .sold and delivered — //('/(/, I. Thai P. had no authority to bind the defendant by I he pur- cliase. 2. If plaintiff thought he was selling to the defendant, and defend- ant did not inirchase. the property would not have passed and defendant vould have been liable in some form of action. But these facts were not clearly proved. I'liwhcrg v. .Indcr- son. VI, 335. Manager of Shop— /'/(/iZ/inr /<_v. | --Tlie i)laintitt's claim was for goiJds sold to one Piper, who had been cnr- lying on business as a general trailer, but shortly before the sale had made .'i transfer of his stock-in-trade .and other property to the defendant in trust for certain creditors. 'j'Ik' plain- tiff was not aware of this tran^fer.hlt', ."■old the good> as be had fri(|uetitly done before the transfer, beiievni'^ that I'iper was still the principal ami not ;in agent, as defendant had left him in charge of the business and emjiloyed him to carry it dii for him. and on his behalf, in' accordance with instructions to be received. The g(H)ds |)urchased from the ijlaintiiT were such as would he reason.ibly re- ([uired in the hu--itie>>, and the plain- tiff supjiosed that they had been or- dered for it. //('/(/. following . Innslrniii; v. .V/.'A.'.v. ( 1S-7) L. R. 7 (J. B. 5a:cl business, and was liable to the plain- tiff for the price of the goods furn- ished by him. Ilcclilcr \. d'crsxth. ( iS<)3) 22 S. C. K. 4S0, distinguished. Ilutcliiui^s V. Adams. .\1I, iiS. Manager of Shop — .S".;/.- A'y.] — When a |)arty deals with an agent supposing him to be the sole jnMnci- pal. without (he knowledge that the property involved belongs to another person, that party is to be protected. When a |)arty allows his agent to act as though he were princiiial. and a third inirly deals with him as owner, the principal is hound by the act of his agent, even if he exceeded liis authority. If a purchaser purchases goods from an agent, without any notice that the goods are not the goods of the agent, he is entitkd to set-off •^he amount due to him from the agent against the price of the goods. The above principles applied to the purchase of goods from the manager of a store upon an agree- ment by him for payment by set-off of his personal debt. Smith v. Groucttc, II, 314. \i ki any it. the ive 661 PRINCIPAL AND SURETY. fitt VI. R.MIIICATIO.N. By Corporation. I — U'i'inii'Cf; & iliid^iiiii's litiy Kaiihoy v. Mtiiin, \'I, 4oy. \'II. .XcTKJN.S. For Account — /■',,;•//( <\.\\[ for an accinint by liriiK'ii)al against am-'it, llu' drcric on I'nrtlicr (lircctmn^ cniuaiiu'il a di'flar- aliun llial the agency nl tlu' dufcnd- ant was rcvokctl. //<7(/. thai Uk' , anil lie had a right to collect Iheiii without any sucli de- claration. The defendant claimed to be entit- led to a commission of 20 per cent. u|)on any moneys which might after- wards be received by the plaintiff. The decree directed the plaintiff to give security that he wouUl pay over In the defendant what the defendant Miifjht be eniiiled to receive. Held, the decree must be varied. a< if defendant had ;i right to the coni- iiiissinii, he could take such ste()s as lie n.iight be advised to obtain an ac- count and payment. Vivian v. Scoblc. 1. 102. PRINCIPAL AND SURETY. Right Surety to Securities Hdd by Creditor — fnrtlicr .■/re:j \. l.oekett, 32 Beav. j^un- and llii'^iits V. l-'runkis, 15 L. J. Ch. j-'<), follow- ed. Ihniedii lui.v tlr Co. v. Xurtli niui Siiitli ll'dle.i luiiilc, (1 .\p|). Cas. i, distinguished. In re Hamilton Trusts, X. -,7.l Discharge of Surety - [\'etiri)i^ I'artuer a Surety (or the Ciintinning fartner.] — Defandaiit>. \V. & O'X., being in partnership, gave .1 promis- sory note and an I. O. V. to pljiintit'f f'ii- the amount of the tirmV indebt- edness. The parinersjiip was dis- solved, and an agreeiiu'iit eiiiered in- to between the p;irtiier>. that O'X. should pay all liabilities. I'lainlilT, being aware of this arrangement, took from O'X. his se[)arate jiromissory i.ite, extending the time for payment. Held ( Dubnc. J., di.sseming), that W. had become a surety only for the debt, and that he had been released by the giving of time to O'X. Man- roe V. O'Xed. I. J45. Discharge of Surety — Cmeeal- iiient I'/ Hishonesty of Servant — He- fault hy .S'ervant Before Bond of Snretys'liil' lixeeuted.] — Declaration in two counts on a l)(5iid of the de- fendant. Conditioned for the fiillil- ment by an agent of the plaintiff Cn7'eyanec to Innocent Purcliaser — Parol Release of Equity of Redcin{>- tion — Statute of Frauds.] — G., be- ing seized in fee simple in )iossession of a piece of land, borrowed £7 from T^., and as security therefor deposit- ed with him his title deeds. Being unable to pay 'he money, it was verb- ally agreed that D. should take the land in satisfaction. To effectuate this they went to tiie Hudson's Bay Company's uftice t(j have a transfer made. Jt appeared that the Company kept a register of lands granted by them, on which they entered the nnnio of the grantee, the consideration, and a description of the l.'ind : and when their grantee or tliose claiming under him made a sale it was entered in a like manner, sometimes on prothic- tion of a conveyance, simietimes on tlie verl)al statement of lioth parlies appearing in person. The oflleial. on this occasion, made the entry as to |i;irt of the land, but as to the part in ciuestion he refused to make the en- try, because no entry or convey;iiice .'ippearcd from the Company's grantee to G. G. remained in possession on an understanding that he might re- deem I), within a reasonable time. In 1867 D. got into possession, and sub- sequently sold tlie land to the defend- ant, whose name, at the time of the iri.-il, apf e:.rcd in pencil in the Com- pany's book. G. then conveyed to ihe plaintiff. Prior to this convey- ;irce I), got a verdict against G. in llie General Court of Assinihoia fur trespass. And in an action of e.iect- nient in the same Court by tlie plain- tiff ;igainsi D.. after the con\eyancc lo the plaintiff, the jurv found a ver- dict fftr D. //('/(/ (Betournay. J., dissenting^, ih;U the plain was entitled to suc- ceed; for D.. iiy deposit with him of the title deeds, took an equitable mortgage only, and the subser|nent transaction at the Hudson's Ray Company's office had not the effect of conveying the legal estate to him. Per Wood, C. J. — Though equity will presume a release of the etpiity of redemption to a mortgagee after a lapse of lime, especially where the .acts of the mortgagee with respect t^) the pro|)erty are such that he could not charge the expense incurred thereabout in an account as mort- gagee, in this case any such presump- tion was rebutted by the mortgagor's remaining in possession and by the mortgagee's own admissions. 5(35 PUBLIC SCHOOLS. 566 / cr Bctoiirnay, J.— The Statute of I-rauds did not apply to the release "t the equity of redemption, because liy D.'s taking possession the contract became an executed one, and D. had ;ic(|uired the Icga, estate as shown by ihe verdict in the actions of trespass and ejectment in the Cleneral Court • if Assuuboia. McKoincy v. S pence I . W.. II. PRIVY COUNCIL. Sec Ari'EAL, II. PROCESS. Signing and Sealing. J_i. Writs must be botii signed and scaled, j. 'i'he authority of the deputy Prothon- "inry with respect to the signing of writs is co-extensive with that of the I'rothonotary. 3. \\>its may be sign- id by the de[)uty Prothonotarv in his M\\n name. Grcoi v. Hainmomi, III. See Pkactke; SiiERrFF, I, II. PROHIBITION. See CouNTv Courts, V. PROMISSORY NOTES. Sec Bills and Notes, PROTHONOTARY. Sec Process. PUBLIC LANDS. Sovereign.) _ The Sovereign is always to be deemed in possession of the land of the Crown. There can be no occui)ant of the Queen's pos- session. Attoniey-Geiicral (Doiii.) v Ryan. V, 81. See Taxation, I. PUBLIC POLICY. Sec Contract, II. PUBLIC SCHOOLS. Denominational Schools _ Ri<^iit or Priz'ilege by Pnicliee—Poieers'^df I'riivineial Legishitiire to Make Lines Relating; to lidueation — I 'Itra I ires.\ — The territorv now consti- tuting the Province of "Manitoba was adnmied into the Canadian Confed- eration by virtue of The .Manitnba Act X] Vic. c. ,? (IX 1870), and an Urder-in-Council issued in pursu- ance thereof. Prior to the passage of said Act there were in the terri- tory a number of effective schools for children. These schools were all de- liominational schools, some being con- trolled by the Roman Catholic church, and oilurs Ity various Pro- testant denominations." These schools were supported by the v.'irious churches, and by voluntary contribu- tions. There were no |)ublic schools in the sense of State schools, and no taxes were levied to support such schools. Section 22 of The Maniioba Act provides that: " In and for the Pro- vince the said Legislature may ex- clusively make laws in relation to ed- ucation, subject and according to the following i)rovisions: i. Xothing in any such law shall prejudiciallv affect any right or privilege with respect to denomijiational schools which any class of persons have bv law f)r prac- tice in the Province a"r the Union." m 567 PUBLIC SCHOOLS. 568 3G9 % The corrcspnnding provisions of Tiiu I'.ritisli Xorili America Act arc idcii- lical, cxcc])! tlial the words " or prac- tice " are oniittcfl from the sub-sec- tion. The Legislature of tlie new Pro- vince in the year 1871 estahlislied a system of pul)iic schools, by which there was one Board of Educatiim divided iiUo two sections — a I'rotes- ta.nt section and a Roman Cailmlic section. The school sections through- out the Province were divided into Protestant and Catholic. The Pro- testant schools were under the con- trol of the Protestant section of the Board, a-nd the Roman Catholic schools under the control of the Ro- nian Catholic section of the Board. Taxes were levied for the support of the Protestant schools on the jtroper- ty of Protestimts alone, and for the sup|iort of Roman Catholic schools on the property of Roman Catholics alone. The grant made annually by the legislature was apportioned be- tween the two classes of schools. This system midcr various statutes was retained until the year i8qo. In 1S90 The Public Schools Act. 5,? \'ic.. c, 38 (M.). was passed, by which all previous statutes relating to education were repealed and a system of non-sectarian schools was established, for the support of which all ratepayers, both Roman Catholic and Protestant, were alike taxed. Upon an application to quash two assessment by-laws of the City of Winnipeg, passed in pursuance of The i'ublic Sclmols .Act, on the ground that " by the said 1)y-laws the amounts to be levied for school pur- poses for the Protestant and Catholic schools are united, and one rate lev- ied upon Protestants ;ind Roman Catholics alike for the ^vhole sum." //('/(/. aftirniing the decision of Kil- 1am, J. (Dulnic. T.. dissenting), i. That The Public ■.Scho,.ls Act was intra z'ircs of the Legislature of Afan- itoba. 2. That the Parliament of Canada intended, by inserting the words " or practice " in the Manitoba Act, that whatever class of persons was at the time of the Union, witli tlie assent of, or at least witiiout ob- jection from, the other members of the coninumit}-. in the habit o.-- cu>- tom of doing in reference to denoiu- iiiational schools should continue, anil should not be affected by Provincial legislation. 3. That any right or priv- ilege which the Roman Catholics had at the time of the L'nion, with respec; to denominational schools, was not taken away fir affected by the Ac. and can be exercised as fully now a- before the Act. 4. That the schools established by Tlie Public Schools Act are not denominational schools. but in the strictest sense jiublic non- sectarian schools. /;.r parte RciiauJ. I Pugs. X. B. R. 273. discussed ami .-ipiiroved. I'iT Dubuc. J. — Having regard to the history of the controversy re- garding denominational schools in Canada and the legislation re- lating thereto, the Parliameiu of Canada, in insertng the words " or practice " in sub-section i of section 22 of The Manitoba Act, had only one manifest pm-pose, that is, to protect in their right and priv- ilege as to denoiuinational schools, the Catholics or Protestants who might, in the future, find themselves in the luinority in this Province, .■md to give a le.gal status to such schools, .and therefore The Public Schools .Act was ultra 7'ircs of the Proviiiciai Legislaure. and the by-laws should \w (|i'ashed. Barrett v. Tlic City of !i 'iiiiiil^i\i;. \]l. 273. Reversed. XIX S. C. R. 374. and Restored (iSoj). A. C. 445. Denominational Schools.] — In- der the same statute and circum- stances siiiilar to those in preceding case — //('/(/. that the meiubers of the Church of iMigl.and are a class of persons wdio bad at the tiiuc of the imion of Manitoba with Canada a right or privilege with respect to denominational schools 1)y law or practice which has been preiudicially atTeeted by The Public Schiiols Act, and that they have equal rights to such schools with Roman Catholics. Ihid. also, that the fact of the ap- plicant having acquiesced for a num- ber of years in a system of schools 668 569 QUEEN'S COUNSEL. 570 re- in re- of 74- .■iiid of the :1a s.s of of tlie uiail.i a ■■,\n\'\ t'l law or iiliciallv lis Act. plits to IimHc^. iliL' ap- a mini- schools ]>y which he. with other niciiibers of :i;o Church of Knglaiul, was taxed f. iT schools cdinnioii to all Protcst- iiits (lid not operate as a waiver of this right. Held, also, that The Public Schools Act is ultra z'ircs. Barrett v. The City of ll'iiuiit'e^L;. 19 S. C. R. 374. re- versing the deci.sion of this Court, re- ported at 7 M. R. 273. followed. l.ciian V. The Citv of iriniiit^eg. VIII. 3. Reversed (1892). A. C. 443. Destruction of Building by Fire.] — After a division of the Don- 'ire school district, an award was made under section 14 of The Mani- toba School Act, 1881. of the existing school houses, school sites, and other school property and assets within the territories readjusted. After the di- vision, but previous to the sitting of the arbitrators, the school hous€ of the district was destroyed by fire. Held, that as the school house was not in existence at the time of the arbitration, it was not proper for the arbitrators to charge the new dis- trict, within whose limits the build- ing had been, with its value as an asset ; and the mntter was referred back to the same arbitrators to cor- rect the mistake. Re Donore and IVhcatlands, I, 356. Action Against Trustees by Teacher.]— Tile first count of the de- claration set out that in consideration tiiat plaintiff would enter into the service of defendants and ser\e them tor one year .... in the capacity of school teacher, at $300 a year, to be paid, etc.. and lodgings, fuel and light to be furnished, etc.. the defendants promised to retain the plaintiff in the capacity, etc. It further alleged the plaintiff's entry into the service, etc., and wrongful dismissal. The second count was an indebitatus count for work done, as a school teacher and otherwise. The dcfend- .ints demurred. Held, I. The wrongful dismissal of '. teacher is a "matter connected with 'lis duty." within The Manitoba ^chool Act. s. 93, and consequently ■ ')t the subject of an action, but of arbitration only. 2. The first count was bad, inasnuicii as it did not al- lege tlie agreement to be in writing and under seal (jr excuse the want of a seal. 3. The second count was bad because the moneys, although under the directioii of the trustees, are not in their hands, but in those of the secretary-treasurer. I'earsoii v. The Sehool Trustees of the Catholie Sehool Jlisriet of St .Jean Ikiptiste Centre, II, 161. Taxation.] — There is no power given in the school .Acts to a board of school trustees in a City or Town, to assess, levy or collect a tax or school rate, except that given to levy a small rate upon the parents or guardians of the children attending school. Schi>ol Trustees of irinni- feii V. Canadian Paeifie Raiheax Co., II. 163. See also Akiiitkatiox, III; G.\rnish- MF.NT, 1 ; T.\X.\TIOX, II. QUALIFICATIONS. See Elections, II. .S\'i' Qro \\'.\KR.\.\T0. QUy^NTUM MERUIT. See Co.\;.;.\cT, V. See D.\ MAGES. QUEEN'S COUNSEL. Precedence.) — In the case of Queen's Counsel in Manitoba, where their patents are of even date, in the alisence of any express provision as to their respective priority of rank contained in the patents, and of any other guide in determining the ques- tion, the order of precedence which thcv had as members of the Bar in 571 Maniluha before tliu palciUs were is- siieil and irres])ecti\ e uf llieni must prevail. In the Matter oj Her Majes- ty's LoitiiscI, \'J11, 155- QUIT CLAIM DEEDS. Sec Registkks or Deeds. RAILWAYS. .570 RAILWAYS. I. INDEUTEUNES.S ANO ^.'0KTGAGES. QUO WARRANTO. Locus Standi — (Jiialitication.] — J I eld. 1. Tlie Court will not readily grant leave to tile a quo zearraiito af- ter proceedings taken under the stat- ute have been dismissed. 2. Qii(cre — Can a ratepayer wdio is not an elector be the relator in quo zearraiito pro- ceedings? ,v The evidence as to want of {|ualitication showed that the re- spondent was assessed for a sufficient amount. There was an affidavit that there was a ti. fa .lands in the sher- iff's hands for :?56.ooo against the rc- si)ondent; that the attorney wdio is- sued the writ informed the deponent that nothing had been paid upon it. There was not. however, any e;ertiti- cate from the sheriff, or any evidence of enquiry from him; nor was there any evidence as to fi. fa. goods in the same case, or the existence of goods sufficient to pay it. //(•/(/, that there was no sufficient evidence of want of publication. 4. .\n aftidavit of a person who said that he was present at a meeting of the council and saw the respondent take the oath of office without the de- claration of qualification, and that he lias reason to believe that he, the re- spondent, has never made the declar- iition of c|ualification. is insufficient. The aftidavit should show that the de- ponent was present during the whole meeting of the council. 5. On an ap- plication for quo zearranto. the ut- most strictness of proof is required. Reg. v. Callozvay. III. 297. Sec Elections, II. II. IxjfRiE.s TO Persons on ok Xe.\k TllACKS. III. In.) IKIES TO .'\.VIMALS OX OK Near Tracks. \V. KiciiT oi- Way — Fences. V. Powers. \'I. Ckoss-Refekences 1. Indeiitkuxess and Mortg.xges. Mortgage Suit — Lands t'nrchas- ed by Kailzeay Company front Mort- gagor.] — Plaintitts were mortgagi'is of land under a mortgage made by defendant -McL. After the makiiit; of the mortgage, defendant .McL, conveyed to defendant R., and R. conveyed to the defendants C. P. K. Co., a strip across the land for their track. The bill was for foreclosure: tor immediate payment by ^IcL., ami for possession as against R. and the C. P. R. Co. The answer of the C. P. R. Co. set up that they had made an agreement with R. for the pur- chase oi the strip of land, and that lliey h:id ])aid into Court the pur- chase money, and given notice by ad- \crtisenient as required by the statute. //('/(/, that the plaintiffs could not ha\e. as against tiie Railway Com- pany, delivery of possession. 2. That the payment into Court protectetl the Railway Company against the claim of the plainiitTs, aiiil that the rights of the latter were cou- tiiied to ,'i claim against the compen- sation paid into Court. Held, that, as against the dofendam McL., tlie plaintiffs were entitled to ;m order for immediate payment, and. as against defendant R., to delivery of possession of the land not ciii' braced in the deed to the RaiKv.iv Company. The Manitoba Mortiia;iC and hii'estinent Co.. Ltd. v. The Can- adian Pacific Railzeay Co., I, 285. crci 672 673 RAILWAYS. 574 ;ul iiiailf piir- iil tli;it : inir- l)y ad- Uatiiti'. mid not Coiii- Coun onipaiiy . and .'re con- Dnipcn- ■ndant illcd to :nt, and. delivery lot en;- Raihvav lie Ca>t- 285. Sale of Railway Under Mort- gage — JiirisdicliiDi W'lurc I 'art of h'ailzcay is Oiitsidi- of Pr(iX'i)ur — I'riiirity of Working:, lixpcnscs of It' hole Raiheay Over Mort'^ai^c of i'art — Reeriz'cr.] — The plaintitts being first mortgagees in trust lor liondhoiders of a secticjn of tiie de- fendants' railway line, 180 miles in length, of which a small ])ortion, gj miles in length., was outside of the Province, together with certain chat- tel jiroperty, took proceedings for a sale of the property and the apjjiiint- niont of a receiver, interest l)eing in iirrcars nn their morieage. Held, that the Court could not de- cree a sale of the whole of the real property mortgaged to the plaintilYs, Ijecause a portion of it was outside of the jurisdiction, nor could tlv. Court decree a sale of that portion within tile jurisdiction, because it was not a portion proper to be cut off and op- erated separately by a purchaser. Kedfichl V. W'ickluuu, \^ Apj). Cas. 467. //('/(/, also, that the plainiitls were entitled to have a receiver appointed, an account taken, and an order for payment into Court, also an inquiry as 10 what personal property was embraced in their security and to have that sold; but that under the statute authorizing the plaintitt's mnrtga.ge, 46 Vic, c. 68, s. 5 (D), the working e.xpenses of the whole railway were a first lien on the revenues thereof, and must be provided for in priority to the claim of the plaintiffs under the mortgage. Gray v. TJic Mani- toba & Xorth-W'cstcrn Raiheav Co.. Xr, 42. Affirmed (1897). .\. C. J?4. Lien on Railway — f'ozecr of ('i'inpa)iy to Grant — Parties.] — Th.e plaintiff's bill alleged that the de- f< ndant Company was a duly incor- iMir;ued Coiuiiany, with its bead of- ;ne at Ottawa, Ontario: tliat the Itlaintiff entered into an agreement \ith the defendant Company to build ■ Au\ ec|uip fifty miles of the railway in Manitoba for f ^oo.ooo, which the ' ompany agreed to iiay him: that he Imilt and efiuijivied the fiftv luiles of the railway according to the terms of tlie ;igreement : that under the terms of the agreenieiu he was entitled to a lien un and to hold i^ossession of the fifty miles of the rtiilway and tlie franchise, rolling stock, land grant, (tc, as security for the amount due him: and th;ii in September, 1891, there was due him over $()00,ooo. It al>o alleged that be oljiained a judg- ir,ent by consent in Ontario, by whicli it w;is dechired that he had a lien on the railway, land gram, etc., for $0ij,j_'O, and it was ordered that the defeiidtuit Company slii>uld, within six months, i)ay the said sum with interest: that the judgment also de- clared, at tlie request of plaintiff, that certain specified amounts of the said sum should be paid to cert;iin named tliird parties, antl tlie fund was cliarged with these payments as a first cluirge: that the defendant made default in i)ayment, and the plaintiff obtained a second judgn^ent in On- tario to enforce tlie first judgment; that by this judgment it was ordered the Company should pay the $622,226, ;ind should forthwith deliver up pos- session of the railw;iy, land grant, etc., to the plaintiff, and the Com- liany was perpetutiUy restrained from selling or neg(ni;iting the bonds of the Company, mtiking and issuing bonds, and from dealing with the land grant. The bill prtiyed, amongst other things, tliat the Comiuiny be ordered to p;iy the $622,226 iiiid inter- est, and forthwith to deliver posses- sion of the said raihvay, rolling stock, etc., and that it he restrained from interfering with the i)laintiff in his possession thereof, and also that the Company be restrained fr(3m tilienating or incumbering the rail- way, land grant, etc., and from issu- ing bonds, etc. The defeiulant Com- ])any demurred to so much of the bill as sought payment oi the money to persons other than the plaintiff', and to so much of the bill as sought to oljtain an order for delivery of the possession of the railway, etc., on the ground that these third persons were neccss.iry parties to the suit. It also demurred for want of etjuity to so much of the bill as sought to restrain the defendants from alienating or w 575 RAILWAYS. 576 otiicrwisc disposing of the railway, land Rrant, rolling stock, etc. //('/(/, that at tills stage of the pro- ceedings, ihe third parties did not ap- pear to be necessary parties, and that if it should prove to be necessary at the hearing, a decree could he made saving their rights. JIfld. also, that the clause in the contract giving the plaintiff a lien and first charge on the fifty miles of the riiilway. land grant, rolling stock, etc., miil he was paid, was intra vires. A Railway Company has a general power to give securities for purposes within the scope of the power con- ferred upon the Company to con- struct and operate the railway, unless riiis power is expressly negatived in 1 he Act of Incorporation, and ex- press power to borrow and give spe- cified securities, will not exclude the general power. Bickford v. Grand Junction Railway Co.. i S. C. R. 696, followed. Charh'bois v. The Great Xorth-ll'est Central Kaihi^ay Co., IX, I, II. Injuries to Persons On or Xe.\r Track. No Platform — Station Grounds A'ot Lighted.] — The plaintiff was a passenger on defendants' train from Winnipeg to Deloraine. The train arrived at Deloraine at io..^O p. m. The night was dark and the station grounds were not lighted. There was no platform on which to alight, but the ground was smooth and level. .■\ brakeman came with a lantern, car- ried out the plaintitif's valise and as- sisted her to alight. The lowest step of the carriage was 26 inches from the ground. Before assisting her to alight, the brakeman placed the lan- tern on the ground. It cast a light 20 or ,30 feet around. In alighting the plaintiff injured her knee and was compelled in consequence to abandon her employment a"" cook in a hotel at Deloraine. It ajipeared at the trial that the plaintiff's knee had been weak for some time previously, and that she had been affected with syno- vites in a sub-acute form. She did not tt.' the brakeman of this weak- ness of L '; knee. In an a<-tion brought for this in- j u ry — Held, that the defendants were not guilty of negligence which should render them liable for the injury, and that if there was any negligence at all it was attributable to the plaintiff in not telling the brakeman of her feeble and delicate knee. lileGinney V. Tlie Canadian Pacific Rail'u.'av Co., VII, 151. III. Injuries to Anim.\ls On or Ne.\r Tr.\ck. Negligence.] — Action for the value of an ox killed by defendants' locomotive. The animal was on the prairie close to the track. The en- gineer reversed the engine and whist- led, but, before the train could be stopped, the animal having got on the track, was run over and killed. Held. I. That the evidence did not disclose such negligence as would en- title the iilaintiff to recover. Mch'ie V. The Canadian Pacific Raihvav Co., II, 6. Approaches.] —Where a Railway Company has crossed a highway the duty of the Company is not merely to provide a crossing upon which the rails do not rise more than cue inrh ] above or sink one inch below the j level ; but it is also the Company's I duty to construct and maintain such j approaches as may be necessary to ! enable persons using the highway to ; avail themselves of the crossing. j Therefore, wdiere a Railway Com- pany laid a plank 14 feet long outsido the rail, and did not grade the rnnd ! up to the plank at one end of it, but I left the ends of the ties exposed — Field, that the Company was liable for an accident occurring to the plain- tiff's mule, ijy reason of the whiffle- trees catching on one of these tics. Mogf^y v. The Canadian Pacific Rail- way Co., Ill, 2og. Presumption as to Cause of In- jury.]— Plaintiff's cattle having been Oi i RAILWAYS. 578 Railway way ihi: merely hich the cue inch ow the iinpany's in such sary to hway lo crossing. Com- outsitle the rnnd f it. but ed- as liable he plain- whiffle- ese tics. fie Rail- of In- ing been in his yard at Q o'clock one evening, were discovered about lo o'clock the next morning lying wounded along- -iile the defendant.-.' line of railway. Une had a hind foot " mashed up," and one had " a big gash in her leg." //i7(/, that it could be fairly infer- leil that the injury was caused by an ei'gine or cars running upon the de- fendants' railway, and under the con- trol of the defendants' servants. In -ucli a case the iiresence of certain employees of the railway at the kill- n;g and cutting up of the cattle or e\en their participation in these acts would not establish any liability of the Company. .\fcMilliin v. Tin- .\faii- itcihi S" Xiirt'i-U'iwtcni Riiilwav Cd.. [\\ 220. . hill .u\' luwt snl'-titlc. IV. RiciiT oi' Way — Fe.n'cks. Liability to Fence. | — The liabil- ity of a Railway Couipany to fence arises by statute only. There i> no coininon law liability to fence, either as re-ipects the highway, nor as re- >liects adjoining properties. A >taiute jirovided that. " W'lien a Municipal Corporation for any iown>hip lia.~ been organized, and the whole or any purtion of such township ha> been M:r\eyed and ^ub-divided into lots (■>\- settlement, fences >hi\]\ be erecl- eil and mainlaineil on each side of lie railwa\ through >uch towii>hip," < '.c. : and further, ihat '" L'ntil -ucli ur.ces and cattle-guard-- are duly : lade an(l completed. ;ind if. after hey are so made ;md onipleted they ■ ;ie not duly maintained, the Com- ;:;ny shall be liable for all damages '■' ne by its trains and engines to cat- ■ii , horses and other animals not wrongfully on the railway and having L;ot there in conse(|uence of the omis- -lon to mak'e, com|)lete an h(ir>es were bein.g wintered on his own land adjacent t(j the proper- ty oi his father, through which the defendants' railway ran. In .March, iSO,?. the horses strayed along a pri- vate road across the father'^ land, through a broken gate on this road, .■iiid on to the railway track, where they were killed by a train of the de- fendants'. .\ccoriliiig to the evidence of the plaintif'f and his f.ather. the latter had -t vera] times in |)revious years given il.e plamiit'f permis>ion to pasture .and w.ater his slock on the father's iaiul. (ir to allow them to run there, bin tliere w;is nrlh-U'cstcrn Raiiway Co.. W . j-'o. REAL PROPERTY ACT. \I. TkANSI KKS \'ll. I'KiourriKs. 580 Cattle-Guards. I — Actinn I'nr tlir value 1)1 a cow killed by (lefeiidaius' iccoinntivc. :\ buy was in cliargc of the cow, but it ran away and ^"1 "" tlu; track tliroush the cattle-guard< being full of sniiw. //<•/(/, defendants liable. /'/////;>.< V. The Canadian I'acific Railway Co.. I, no. \'. I'oWKKS. Exceeding Powers — Trrsf^ass — l'ul>lir Con'i;-nii-ncc.\ — Wben Rail- way Coni|)anics or individuals exceed llieir statutory powers in dealing with other people's property, and an in- iunetiiin is sought to restrain their actions, no (|ueslion of danitige or ])id)lic conveiiience is raised. .It- IcrncY-LJi'Hcral v. Rvan, W 8. \'I. Ckoss Ri:ri-.Ki:xci:s. .S'l-r Eminent Dom.mn: Rf.( i-.ivkus ; St.mttk.s, III; .Sti;kkt R.mi.w.ws. RAILROAD CROSSINGS. Sec CoxsTiTtTiox.M, L.\w, 111 {a}: R.MI.W.WS. III. REAL PROPERTY ACT. I. .Al'I'l.U'ATlOXS. ] 1. C.WK.MS. III. ri-.TlTlo.N.S. T\'. Issncs. V. CKKTiriC.\TI> oi- TiTl.lCS .\Nn C.\Nti:i.l..\TloX. \'lll. lv\i-.rrT(ii^s .\xij AuMi.Ms- TI;.\T(>US. I.\. Rki i:Ri;xer..s. X. Rkmov.m. iko.m Imi.ks. \1. |-J-i'l'.(T ur .\( T. XII. .Actions .Xc.mxst Dlstkict Rkcistk.xu. 1. .Al'l'l.lC.\T10\S. Property Affected _ J^ands .\ot "Alienated " on ist .Inly, iSSf, — I l|)lic;ition to set a-ide the non-suit. The iietition was then brought on for hearing ag;i'n. when i' 581 REAL PROPERTY ACT. £88 appuarfd lliat A. Iiad withdrawn liis ;ilil)licaii(iii for a cerliticatc i>l title. Hrlil, that tiie apphcation was tlu' i'lundatioii of tlie proceedings in Court, and wlieii it was withdrawn liie jurisdiction of tlie Conn was at an end. (jtiierwise than to urder tlie c.'iveatee to \rdy the costs uf the pro- cectUiiRS. Caiiit'lH'U \. .lUowav. \ll[, J-M. .Imi St-c Grant \\ fliiiilrr. \'I1I. j_'o. 11. C.WKATS. Description of Land. | — A caveat liled under The Real Property Act nnist coinain a [imper description of ihe land in (|ne>ii(in, and it is not suf- licient that >uch descriptinn is given in the affulavit verifying the cave.at w hich is filed with it. The petition of the cave;ui)rs. fol- l"wing a caveat which was defective in this respect, was dismissed with msts. JoiU'S V. Siiiil'soii. S M.R. IJ4. .111(1 McKiiy V. Xanldii. ~ M. R. J30, fiiUowed. Martin \. Mardcii. [.\, 5(15. Description of Land — Si-cond ^\iz\at — .Idilrcss — ■ Ca:\atin\\ — ■|"he directinn in schedule (.) to The Real Property .\ct docs r.,.n ref|uire that the description of the land given in the caveat sliould 1)e word for \'. ord the same as that in ilie applici- ;ii>n. hut the caveat will 1)e sufficient if tlie descripiidU given is >uch as will enable the pri>i)erty tn he lucaicii > .1 the ground. The description in the caxeat was : .^ fi)llows: "Lot Xo, ,?j in l)lock '3. as sliown upon a pl.m of Oak I .Jce, hcing a suh-division nf ihe N I f section 2,v in township 0. in range .'! W. nf the P. M.. in the Province if ^[anit(ll);l," and it was shown that :lierc were four plans file;' in the Re- gistry Office relating t" different por- tions of the Town "f Dak Lake. //('/(/, nevertheless, that, as it was •"H shown that tlicre was a lot No. .^j in lilock 15 in more than one of -in-li plans, the descriinion w;is suf- ■■.rient. The caveat was tiled in tlie names I if Charles Adams and Jnhn H. .\dams as partners in the tirni nf .\dams Bros., as crediti>rs of a cer- tain insolvent, and Charles .\danis had previously tiled a caveat ;i> as- signee in trust against the s.-uiie ap nlication, and ha^ed upon the ^aml• aregatiinis as to title. //('/(/, that the objection that the present was a second caveat filed \'. ilhont leave by the same jierson Cduld not be sustained. Cpiin appe;d — Held. I, That the description of the land was not necessarily indefin- ite and uncertain, unless it was shown ihal there was more than one jilan of Oak Lake; and that, if it followed tile description given in the applica- tion of the caveatee. it would, accord- nig to the form in schedule O of The Re.-il Property .\ct, be .sufficient. _'. Th;it both tlie caveat and petition >liowed sulTiciently what estate, in- ii rest or charge the caveator claimed. ,^ That there was no rule of Court i\(|niriiig the address or description of the caxcator to be stated in bis pc- tiiion. .Idanis \. II ■ckiii. .XII. 11. .SV(' also Gralunii \. I lar,iilt>ni. \'III. Second Caveat. | ::iviiig .applied for - I Ik caveatee a certificate of title under The Real I'ropcny Act, the caveators liled a c,a\eat forbid- ding the s.ame. Three weeks after- w.ards. owing to there being a defect in the tii>i cive.ai. they filed a second without having an order from a Jfaige giving them le.ave to do ^o. The tirvi caveat b;id nm lapsed or Inin withdrawn or disch;irged Ijc- forc the second w;i> filed. The pe- tition of the caveators was based on the second caveat. //(•/(/. that there wa- no .authority given by the .\ct for filing tlie seco'vl caveat without a Judge's order, and ll/at the petition b.ased on such sec- ond caveat wa< inv.alid. .and should be dismisscf! with costs. /'Vji.v/ cI al. Olid Privrr. X. _'oi). ./)/(/ si'c Adams v. Ilockiu, supra. f I;" 583 REAL PROPERTY ACT. oH4 M L(l iiy statute. //(■/(/, tliat the tiliiiK of a caveat tlial ci implies witli tlie statute is a condiliiin preeedeiu to tlie jurisdic- tlr\ll iit till' r^iilii-!- f*» j.ii t I'rt •! 1 11 '1 n«>ti- eiuKumin iiieeeuem id xne juiisiiie- tiou (if tlie Court to entertain a peti- tion upon it. Tlie petition was, tiierefore. dismissed with costs. Mc- .Irthiir V, (.ildss. Vl. JJ4. Accompanying Affidavit — Coii- ti-i!ts.\ — In an application under The Keal Property Act, the caveat iia\e no aildition for the ca\eator, the infill the altidiivit in suiipurt de- ci'i'iluwl Unii 'I c '111 'I I'l'i 111 n i ri 1 1t- I luive iiii aiiiteiiiiiei 1. .M.. who owns, or has a person;d interest in the land described." .f.>ih\s V. Simpson. \'I1I. 1J4. jSrIistake in Name of Applicant — ri'h-r tn Si'i-rc .\'.'//V('.s-. I — Au.uiis- tu-- Meredith Xaiiton haviiiit applied for a ccrlilicate i^i title nf the lands in (|uesti(iii under The Real Property .\ci of 1880, M. tiled a caveat claim- ing an estate in fee simple in the lands, and he then hied a petition to e^tahlish his claim. In the caveat the name of the applicant was stated to he .Augustus .Mcreditli Newton. It 1' *],,.. ;., .i,_ 1 iippeared that in the usu.il notice served upon the cavenVnr hv direc- tion of the district section id regisir.-ir, under seeiiiiii oj, the n;une " Xanton " was not written plainly, and that the ap- jilicaiion nuniher was correctly given. ;uid the lands correctly described in ihe ca\eat. Ill-Id. that the direction in schedule O of the statute, as ti> stating the nrime of the applicant, is not inipera- ti\e, .and that the mistake was only an iregularity, and the ca\eat was fiot invalid nn account of it. The pctiti'in .alleged, that the cave- atee had atiplicd to bring the lands ur.de'' The Real Property ,\ei, ami that the petitioner had tiled a caveat fnrbidding this, lint did not expres>!y allege that the lands had not been re- gi.'-tered under the .\ct. Held, that on the facts stated the Court will assume that the caveat was lodged before the registration of the certificate of title. Section 130. sub-section 8. c.f The Real Property Act of 1880 provides that every caveat " shall state some address or place within the Province I if .Manitoba at which notice^ ;'.iiil liri'cceiliiiirs relating to caveats iii;iy be served." The caveat did not name a place a'- which notices, etc., might be serv- ed, but said. " I appoint .\. X. Mc- Pherson, Conimissiijiier of R.ailways Ortice, Winnipeg, my agent, on whiim ni.;ices ;nu! proceedings liiereto may lie served." Held, that the statute rerpiires the caveat to state some place at wliich notices may lie served, and that the statutory direction in this respect must be deemed tu be imperative. The caveat in this case merely n.ini- ing a person, tlie petition could rot be entertained. McArtlnty v. CJhis.^. 6 M. R. -'_'4. followed. McKay v, Xan- t..ii. \'II. _'5o. III. Petitions. Allegations— .s7(;/r»;(');^ of Tiil>\\ — I li'ld. a petition was defective in nut >howing particulars of jietitioner's cl.'iim of title. Clark v. Scolt. V . j^\. Allegations _ Afndarit Siitt'>rt- iii,L^ ('(/;'('(//. I — In a petition uiukr Tile Real Property .\ct. it is not necessary to allege that the caveat w.'is supported by an affidavit or stat- utiiry declaration. When the petition .alleges that a caveat was filed in the ])rescribeil form, it is prcsunied that the re(|uirenieiits of the .Act lia\ebee:i ccniiilied with. /Toi^'iis y. Canifhcll. VII, .U. Allegations — Ct-rtiUcatr .\',>f Is- ■■mrd.] — Where a petition to enforce a caveat, lodged inirsuaiit to section m 684 r>8fi HEAL PROPERTY ACT. 58fi 130 of The Real Property Act of iKSg, is filed after llie expiration of one montli from tlie receipt of the cj'.vcat l)y tile tiistricl registrar, it is necessary to allege in tlie petition that a certificate of title lias not lieen issued. MrKay v. iWiiitaii, 7 M. R. I _'50, (li^lingnished. Sfrai^itr v. Lira- \ luiiii, \'H, J,i)S. I Affidavits in Support of Petition ' After Caveat. j — It is not necessary ! t(i file affidavits in snpport of a iieti- tion based upon a caveat in the Land Titles Office. Cause may be shown | by argument njion the allegations in the iietition. or by affidavits; after which the Judge may, if necessary, ptrinil the petitioner to adduce evid- ence, or m;iy direct an i-sue. Re Mc- .hiliiir (1 11(1 I j lass, \'i, ,^01. Staying Proceedings — Costs of l-nniKT Suit ill (Jiiccii's Bench — /,(;i7/r.\'. 1 — 'fhe Court has no juris- ilictidii to stay proceedings on a pc- tilion tiled to enforce a caveat under The Real Property Act, because the costs of an action or suit in the Court of Queen's Bench relating to the same matter have not been paid. Graham v. I fain il ton. VIII, 44,^ Dismissal for Want of Prosecu- tion — Married ll'oinan — Se/^arate listate.] — (i. tiled a petition to en- force a caveat under The Real Pro- perty Art. but did not serve the peti- tion within the time prescrilied by rule 13 of said Act, A motion was made to dismiss the petition for want (if prosecution. //(•/(/, that there could iiit be ;i dismiss.al in the tirst in^t;ince. tiiat rule 16 modifies rule 1,1, and that the or.ly order that could be made w.as one giving time to .serve. The caveatee was a married wo- man, and it was held thnt the facts sel out in her affidavit were insutTi- cieiit to show that the land in (|ues- tiuii was her separate estate. Gra- ham \. Jfaiiiil'iin. \'IIT. 45r). Married Woman— A'lV/ I'riend — Dismissal of I'elition — [Mscretionary Order — Xeze Petition — Leave to rile — Right to File When JUsmiss- al Xot on Merits.] — S.. a married wnman, tiled a jietition upon a caveat under The Real I'rojjcrty .\ct. The petition showed th;it S. was a mar- ried woman, and that "under and by virtue of a certiticate of title issued ti) the caveator under the proxisinns <>i The Real Properly .Act ( iibiecled that S. should have petition- ed by her next friend, and an enlarge- ment for a week was granted for lier to have one a|)poiiited. As this was not done within the time allnwed, a further jieremptory enlargement of three days was gr.inted. Un the day that the petition finally came on for he.aring. ciiun.-el for the petitii>iier filed the coii'-ent of B. to be appoint- ed next friend, and asked ti> have him api)ointed e.v {'arte; but the Judge wnuld only grant a summons, and he afterwards, that day in Cham- bers, dismissed the petition. The ]K'tltioncr applied to the Pull Court to have the order dismissing the jie- tition set aside, or varied by granting leave to file a new petition. Held, that, as it did nut clearly ap- pear un the face of the petition that the property in (|uestion was the sep- arate property of the caveator, it was necessary for her to have a next friend appointed. Held, also, that the Judge in Cham- i,^,.;„„ .,]] ,1,^. cinicumstanccs exercised hi- discre- the petition, and hers, having before liim. ha( tion in dismis-iii_ the Court should not interfere. //.'/(/. alsit. that nothing hail been -hown to warrant a |)ositive order gr.-miing leave to file a new [letition, Rer iJubuc, J. — The petition was not dismissed on the merits, and the caveator may file a new one without special leave. Sehullc \. I'rank. \'II1, ./)/(/ see Graham \. Hamilton, supra. lY '.<>''V.^. Wlio Should be Plaintiff.] _ [n iSSj. H. ,-igreed 10 purcha-e cert.ain o,S7 PvEAL PROPERTY ACT. 'iW laiKN from tlic Cioveriiiiiciit, ami paiil a iiortioii 111 tlic purchase moiiiy. In iS()i, he nave a (Hiii I'laim deed to (i.. wli') paid the balance 'tioii was, who should be plaintiff"-' //(•/(/, that R., the caveator, should be pliiinlilT. //i7(/. also, that, ;is ,-i _ueneral rule, the caveator slmuld be |)l;iintilT. l\Uil- dt-ll V. (/'('cryi-i-K//, \'lil, 1,^4. Who Should be Plaintiff. |— The caveators, by their petition under The Real Property .Act, claimed a charge on the land in (|uestion by virtue of a writ of execution .-ig.iinst tiie lands of one .Andrew .Mordeii, whom they alleged to have been the owner of the land when their writ was placed in tile siieriff's hands. The caveatee, who had applied for a certificate of title, claimed the land under a tax sale deed, and in answer to the i)etitioii further set up that the land was exempt fmm seizure uiuler execution as having lieeii the home- stead of -Andrew .Morden. also that he was advised and believed that the caveators* writ had not been kept in force by renewal, but these matters were not suliiciently proved by liis affKl;i\it. Jliid, tliat tlie liurden of proof was on the caveatee, and th.at he must be the ])laiiitirf in the issue directed on the petition, Martin v. Morden, IX. 567. Who Should be Plaintiff.] — A mortgagee of 'and having applied to bring it under 'l"he Real Property -Act, a caveat was tiled, and the cave- ator proceeded by petition for the purpose of establishing his ciaim. al- leging that lie had ac(piire(l a title fnim the mortgagor sub-^ecpient to the caveatee's mortgage, that the mort- gagee's claim was barred by The Real Property Limitation Act, and that be himself was in possession ni the pi«jperly, which lie verilied by .-il'liilavit. //i7(/, that in the issue ordered to determine the (pie>tion whether the mortgagee's rights had been barred under the statute, the onus of shuw- ing this was upon the iictitioner, ami he should be tile plaintiff. Buckn.iin \. Sli'XCiirl, .\1, 4(ji. Who Should be Plaintiff. j—ln a petition under The Real Proi)erty Act, the petitioiier allegetl that he liad a title ill fee simple to the lands m (|uestion. The caveatee claimed uii- tler a tax s.ale deed, but did not dis- tinctly neg.itive the petitioner's title, exce|)t as a cimse(pience of the tax -ale. Held, tli.at the onus (jf eilablishing his title was on the caveatee, and that he should be made i)laintiff in the is,oiute rule, the ajjplioation for a ni-\\ trial should he refused and the iieti- liiin disinisNi'd with costs. (.irant v. lluii/,-i\ \'III, JJO. ./;/(/ .vi'i' Ciiiiil'hrll V. . Illiii^'ny, 224. \'I1I. Security for Costs.) — A. applied lor a certificate of title. B. tiled a caveat. Both parties claimed under idii\ ivances from tiie p.atentee. Ilt'ld. th;it in an issue to try the ri.uht. A. should he pl;iintitT, and he- injj; out of the jurisdiciion. should ^ive security for costs. MiC\irtliy v. /<(/(/,t,'/('.V. (1 M. R. -'"0. considered. (irant v. Hunter, \'I, 550. Costs. I — An order directing the trial of an issue under The Real Pro- perty Act should reserve all further (ii:estions, includinc; the ipiestion of costs, initil after tlie tri.al of the i^- sne. Lavallc v. nruniniond . \'I. uo. Appeal — Afnd(ivits.\—:\n api)eal will lie from a verdict rendered ujion the trial of an issue under tlu' pro- visions Mile >urviving executrix iind de- visee under the will of B,), which stated that M. was >eized of an e>- tate in fee simide in the lands sub- ject to the following incumbrances: (I) .\ mortg,'ige made by B. to C. ; (J) a lien or charge fm- $5.(3ck) in f;i\(ir of .\I. B. under the said will; 1 ,U a mortgage made by M. herself to L'., attaching upon M.'s interest as ^uch devisee oidy. .\fterwards M, sold part of tlie land to 1)., ,uid I'x- edited a transfer thereof to him ; ,ind the district registrar, holding th.it M. li.ad a power of -ale a-> executrix un- der B.'s will, which enabled her to >ell the land for th ing debts and as the fact w; iiecess;iry for to issue ;i I)., free braiices except the mortgage made by the testator. To this C. objected, and the mat- ter was referred to the Court on ap- peal from the district registrar. //.■/(/, th.'it it was not competent for the district registrar to go behind his former certiticite, and find in the registered owner a power inconsist- ent with the title stated in it, and llms cut out two of tlie eitcum- branco therein set fnrtb. A'l' Mas- sey and (iihson. 7 .M.K. 17J, followed. //(•/(/. ;iNo, that even if the former ceiiific'iie ciiiild li;ive been corrected by the district registrar as erroiieotis. such iiower of correction was in him and could not lie exercised by the Court on the ap'Tvl. The section UJ of The Real Pro- perly .\c! applies where the holder of a cirtiticaie of title has died nr be- ciitiie bankrupt, and there is a trans- mi>-iiui nf hi- interest, but h;i- no api)licatioii where the land tr;insmit- ted had not been bruught under the .Act. f\'e .Ui'dM' and The Ccnfeder- atidit Life . Issoeiation. IX, 45,^ Cancelling' Certificate of Title — Issued in I'.rriir. Where nn Fraud is Shdien — Title to Lands Hiniiiht at Tax Sale.] — .\ certificate of title issued through .•ni error on the part of ;i district registrar may be ordered to be cancelled pursuant to the pro- W 591 KEAL PROPERTY ACT. fX' 502 vi.si(jns of sectinns 126 and 127 of Tlie Real Property Act, R. S. M., c. 133. notwitlistaiiding the proviso in section 128 of the Act and tliat there was no fraud on the part of tlie hold- er of the certificate. Under the Act 60 Vic, c. 21, s. I, as amended by 61 Vic, c 33. s-s. 8-10, which prescribes the proceedings for obUiiiiing certificates of title for lands purciiased at tax sales, it was error in law for il'c district registrar to is- sue the certiftcate in question within six months from the date of the ap- ])Iication, ;i: he did, altliougli he h;id the con^^'-.it of the oidy persons who to iiis knowledge had any inter- est ni opjKJsing the issue. When the certificate in (piestion was issued, the district registrar was not aware that other parties were in- terested in the land who should have been served with notice under section 49 of the Act, and this was error in point of fact sullicicnt with the error in law to warraiit .in order for can- cellation. /« n' Ihtclioiiaii. XII, 612. Provincial License to Hold Real Estate. I — Certain property ha\ing been brought under The Real Pro- perty Act, a certificate of title was issued to the Canadian Pacific Rail- w;iy Co. The Company had n"frn'— Whether tlio lease was one which could have been registered mider The Retil Property Act? Sliofc V. Green. \'\. 322. \'II. Priorities. Registered Fi. Fa. and Unregis- tered Transfer.) — > After ,1 li. ia. a.u.'iinsl the registered owner of land;- had been registered, a prior Iran-- 692 hint in - T h .: 1 sulj- ly Act, plain- in ilie of Jn- ever, tn REAL PROPERTY ACT. 6m with istorcd. i-ed, it asc. ,^. cov- Tiie e ic dain- lior the ■(_' been ropcriy M f ferce of the whole estate registered his transfer. //(•/(/, that a transfer gives to the transferee the right to have the land registered in his name, but until it is registered it has no effect upon the land ; and that the execution creditor was therefore entitled to priority. Re Herbert and Gibson, VI, tqi. Trust Estates — Priority Bet^eeen Registered I'i. fa. and I'nrei^islered Transfer — Petition — Affidaz'it Jiz'i- denee.] — On 2T,vd February, iSSS, G. was the registered owner in fee sinii)le uf certain lands under The Real Property Act of 1885. On or about that day G. executed a trans- fer of the lands to M. and was paid the purchase money ; but the transfer was not registered until ist May, 1888. In the meantime a writ of ex- ecution against the lands of (i. was registerecl. The registrar-general, under section no of The l\cal Pro- perty Act of 1885. submitted fur the ojiinion of a Judge the question whether the land was bound by the eexcution. The question was argued before Bain, J., who gave an opinion that the land was bound. II. after- wards transferred to S., who hied this petition for a direction to regis- ter the transfer, and to issue to him a clear certificate of title. The petition came up in Chambers, and both ;-ide> filed aiTidavits. after which Dubuc, J., referred the petition to the Full Cou.'t. Held. I. That Bain, J., did not de- cide the r|uestion, but merely gave an opinion for the guidance of the re- gistrar-general, leaving the parties to raise the question again, as they have by this petition ; but, at all events, the respondent, having filed aftidavits in reply, is now too late to raise the ob- icction. The statute does not by re- gistration recognize trusts, or the separation of legal and beneficial ownership-;, luit as ag;iinst the regis- tered owner. Courts of Erpiity will recognize and give elTect 10 trusts and contracts hy acting /;( /personam. That the registrar-general could not enquire into the existetice of a bene- ficial interest apart from the register- ed title. The i)etitioncr's remedy, if any. was in a Court of Equity. Re Herbert and Gibson. 6 M.R. 191, ex- plained. A'c' Massev and Gibson, \TI, 172. Trusts Under Real Property Act. I — See Judgments, VIII. VIII. Executors and Administr.x- TORS. Proof of Will.] — Before executors can apply for registration as owners of the testator's land they must prove the will in the Surrogate Court. Re Hiinnennan. II, j,7~. Proof of Intestacy — Pcieer of Personal Representatizw] — .A mort- gagor of lands died intestate. His administrator released the ec|uity of redemption to the mortgagee, who ap- plied for a certificate of title. The l;iiid had not previously been bought under the provisions of the .Act. Held. I. That production of letters of administration were not sufficient liroof of the death of the intestate. 2. That the administratfir had no power Id release the equity of redemjition. because the property had not there- fore been brought under the provis- ions of the .Act. and even in case of land under the Act. a personal repre- sentative cannot convey until he Ik'S been registered as owner. A'l' Lewis, \ . -14. IX. References, Evidence.] — Upon a reference b\- the reui-tr;ir general under The Real Property .Act, no material other than the ca-^e submitted together with any d'H'uments transmitted, can be con sidered. A'l' Joyee and Searry, VI, _'S I . X. Ri:mov.\i. i-uom Files. Document Improperly Placed in Registrar-General's Office. j-.V i^y *■-;■ 11m o»5 RECEIVERS. 396 document drawn as for rcgisLrati'iii uikIlt The Mechanics' Lien Act was filed in the registrar-general's office. Upon an appHcation to remove it fnun the files — field, that the Court had no power t'l order its removal. But as it was in-.pniperly placed there, the applica- tion was refused without costs. Gait V. Kelly, V. J24. XI. Effect of Act. Lands Become Chattels.] — Lands hrouglu under the Act i)econie chat- tei.s real for the purpose of devolu- tion at death, but are lands in other respects, and arc not exigible under fi. fa. goods. Re Irish. IL ,^6i. See also Jcug.ment.s. VI 1L XII. Actions Acain.st District Rkgi.strai;. Pleading'— f )(•;;/^ Leave to Take Proceedings — .XotzeithstandiiiL^ .It'poinlnienl of Ke- eeirer — I'etition.] — An order for recei\er having been olitained by one creditor in a suit instituted by him, an application of another creditor for leave to take i)rocee(lings (notwitli- standing the receivership) for pay- ment of another receiver held to be prcjperly t.aken by peliti', there lieing no legisla- tive authority for the transfer of the responsilility of management froni the h;in(!s of the Company: nor could they sue for possession or foreclos- 599 REGISTEE OF DEEDS. 600 ure. .Ulaii v. Manitoba & Xurtli- U'cstcnt Raihi'ay Co., Re Grey ct al. Xo. J. X, io6. Leave to Take Proceedings — Ihiicficiarics not l^rccluded hy I-'onu- cr Action by Trustees — lix Parte . I triplication — Trustee and Cestui Que I'rust.] — Motion made hy two hold- ers of i)onds issued hy the defendaiit Company and seeured" l)y a mortgage made to Grey and Heron, the plain- tiff:; in tlie seeond suit, as trustees, for leave to hring an action to ad- minister the trusts of the mortgage deed, for a declaration that the power of sale and other powers contained in that deed are valiii, .and for a de- claration of the true construction of the mortgage as to certain matters. Tlie mortgage covered a portion of the line of the defendant's railway, known as the lirst division, hut as part of it was heyond the Province, it had been decided that the Court had no iurisdictinn U) order a sale. Re- ceivers of the |^r(^fits, tolls and re- venues of the 'a'lway had been ap- pointed in the i espcctive suits, but they were not in possession of any part of the Company's property, and had nothing to do with the manage- ment of the railway. The trustees. Grey and Heron, had formerly ai)i)lied to the Court and got leave to take certain proceedings which they had taken, but without any practical results to the bondhold- ers, beyond the appointment of a sep- arate receiver for the first division. It was deemed necessary to make the present api)lication. because the Rail- w.iy Company would have to be made a party to tlie action lo he brought, and the receivers had been appointed in the above actions. Held, that leave should be granted as asked, and that the applicants were not precluded from bringing an ac- tion for the administratiiin of the trusts on accouiu of anything done by the trustees; also, thiit no notice of the application need be given, as the receivers were not in any sense in jiossession of any part of the Com- pany's property. .'Ulan v. Ma-utoba & Xortli-U'estern Railzi'av Co. Grev V. Manitoba & Xortli-U'estern Rail- zeay Co., XH, 57. REFEREE. Jurisdiction.] — The Queen's Hench rules of April. 1889. only dele- gated to the Referee the powers therein ex])ressed. and at that tiuK- possessed by a Judge in Chambers. Scott V. Thompson. VH. 472. Jurisdiction — Sale of Land Un- der Rcfiistered Certificate of lud^- I incut — " .Vc:i.'."l — Held, that rule 26 of The Queen's Bench .Act. 1895. which empowers the Referee in Chambers " to do such things .... and e.xercise all such authority and jurisdiction as are now done or eexrcised by him or by any Judge of the Court '■'tting in Chamljers.' with, cer- tain specified exceptions, does not authorize the Referee to make any order for the sale of land under rule 804 and that it applies only to tin powers, authority and jurisdictinn which at the time of the coming into force o'. the Act and rules, but inde- pendently thereof, a Judge n Cbani- i tiers had ll'atson v. Da,d\. \U. ! f75. ! Setting Aside Judge's Order. |~ I Has now power to set aside a Judge's I order, even indirectly, as by su))- pressing a commission. Tlioinf'son V. Sequin. Vlll. 79. Reference to a Judge.] — The Re feree cannot refer to a Judge ar, ap- lilication which has lapsed. Gri/i/r.t V. .1 ////.■;■, I. 368. Appeals From.] — .\n appeal fmni the Referee must be brnuglil on for hearing within fourteen days from the issuin.g of the order. U'ood v. Wood. n,""87. 001 '.he Act t-rs' 1. U REGISTER OF DEEDS. Defective Affidavit.] — To a per- fect registration it is essential that a'l 600 601 REPLEVIN. 602 'he Re- ^:i^l , from f on for from 1 cod V. "': a per- iliat all the requirements of Tlie Registry Act should he complied with. Fann- ers' & Traders' Loan Co. v. Conklin. I, i8t. Defective Affidavit.] — Regis- tration is ineffectual if the addition (ir calling of the witness l)e not set forth in the affidavit of execution. Rivncich v. Bcrrynian, III. ,^87. Quit Claim Deed — Notice — Af- fidavit of lixcciition ] — A quit claim deed is witiiin The Registr}- Act. and by registration defeats a prior unre- gistered grant of the interest of the sani;.' grantor. Registration is effectual without an aftida\-il of execution by the grantee. M. was entitled to a conveyance in fee simple of the lands in question, upon the payment of a small balance of purchase money. L'nder these circumstance-;, he executed an .-i-i- signment of his interest in the land to .A. Sul)sequently. ^^ executed a (|uit claim deed of the la ids to I'.. ]>. re- gistered first. B. hal notice that .\. bad been negotiating for the pur- chase of the l.-md. and that tiiM'e had been a verbal arrangement for a transfer to A. He asked M. if he bad given any written agreement to .\.. but did not enquire of A. himself. Held, that there was not sufficient proof of actual rmtice l^ defeat B.'s prior registration. Held, also, that in on'.er to bring abstinence from enquir.v within the category of actual notice, tliere iiin->t be wilful abstinence and fraudulent determination not \.o be infnrmed. .S7 •^till jiending and undeter- mined. Rei.ilication, " that the suit referred to in the liond mentioned in the declaration herein was at and before the commencement nf this ac- tif)n determined in the manner fol- lowing, that is to say: The said suit w;is entered for trial at the sittings 'if Assize ai;d .\'('.\";' Prins oi this Court in and for the Eastern Tufli- cial I")istrict of the Province of Alani- teiba. beginning rm the fourth day of M;ircli in the year one thousand eight hiuidred and eislity-four. and was on the eighteenth day of June in the said year brought on fnr trial before Mr. Justice Taylor, th^* learned Judge then holding the said sittings, and the -aid learned Judge thereupon decided ;i;id determined that the said Court li.'id no inr;>dictinn over the said suit, atii! str'telc the said suit off the lit nf -nits then and tliere enteveaid ■ itiing-. and declined to give judg- tnetit therein." nemurrer to the re- plication. Helil. ih.at the replication wa- b;ion<:l for not proceeding with elTect. a plea that the replevin acliiui is still pend- ing is sufhcient. .\iid a reftlication to such a iilea disclosing delay is bad. unless the delay itself has termin- ated the action. The condition in a replevin bond to iirosccute with ef- fect is separate and ilistinct from the condition to )irosecute withiiut delay. Mcintosh \. Xickrl. IV, 51. Non-Tenuit.J — In an action n\ re- plevin, the defendant avowed the tak- ing as distress for rent. JIclil, that the plea of uon-tcnuit put in issue, not merely the denu-i- jjleaded, l)ut whether the plaiiitttf was tenant to the avowant at tlie time of distress. Daitfhinais v. Chirk. HI. 225. Appeal from County Court. | _ There is no appeal from a Coinuy Court in an action of replevin, be- cause the (|uestion in issue is not a money demand, but one of title to goods. Haddock v. Russell. \'I1I. j;. .S"(V also Bonds. RESTRAINT OF TRADE. Sec CoNTU.VCTj II. RIGHT OF -WAY. Sec R.MI.W.WS. RIGHT TO REPLY. i'ct' Tia.\L. ROAD ALLO'WANCES. Sec Borxi>.\Kv Lixes. SAX£ CF GOODS. I. CoNSTKlTTlO.V 01-- C0NTR/\CT. 11. Df.i.iv1'.rv .\nii Acceptance. III. Tkansiek of Title as Between Parties. IV. Remf,iiii:s oi- Vendor. \'. Ri:mi:dies of Pi;r( haser. \'I. PrRClI ASEK FOR \'Al.fK WITHOUT Notice. ■ 605 SALE OF GOODS. 606 1. Construction or Contract. Work and Labor — l^stcf'l^cl.] — Plaintiff agreed witli (IcIciidaiU as foUi.ws: "1 will put you up build- ing with frame for iciii, 75NJ4, ac- cording to plan, for the sum of $500. starting at once and completing as soon as possible." After completion the plaintiff tore down llie building :md carried it away without tlio de- fendant's knowledge. In an action for the contract price, the jury was told that it was the plaintit'f's duty to notify the defendant of the comple- tion, and tender it to him. Held, I. That if the cimlract w;is for the sale of a chattel, the charge was right; l)ut if for w'lrk and labcjr, tliat it was wrong. 2. That although tlic circumstances might tend to sup- port tlie view that tlic coiuract was for work and labor, yet that the plain- tiff having, without the defendant's sanction, pulled down and carried away the building, he could not be luard to say that it was not a sale of a chattel, the projierty in which had not passed to the defendant. Rcss V. Doyle, IV, 434- II. DeLIVEKV .\N'I) .\(1 t;i'T.\N'CE. Partial Delivery— Refusal to .Ic- ceft. E.reusiiig 1-iirther Delivery — ll'ah'ei:] — Defendant f)rdered goods (some manufactured and some to be manufactured) from ])laintifif. De- fendant contended that the agree- ment was that the goods were tu be shipi)ed not later than 6th October, while plaintiff and his witnesses swore to 20th October as the date .".greed upon. On i6th October de- fendant wrote, cancelling the order. This letter was received by the plain- tiff on iQth October, and dh th:it day he shipped a portion of the goods. In an action for tlic price of the goods shipped — Held, that even if the plaintiff's contention as to the date were upheld, yet that the defendant was not l)ound to accept n portion of the gonds, and that the letter of i6tli October did not excuse a complete performance. Mel'hail v. Clements, I, 105. Refusal to Accept — Partial Jii- sfeetioii hy I'ltrehaser of Goods Sold by Sfieeific Description.] — A pur- ch;i>er of goods ordered to be sent by railway does not lose his right of rejecting the goods by unloading them from the cars on arrival and teaming them to his own premises, if he tiien finds them to be inferior to what lie had ordered, and so notifies the vendor within a reasonable time. Crei^litoii v. I'aeitie Coast Lumber Co.. XII, 546. See rKI.NCIl'.M. .WII .VCENT. III. V. III. Ti<.\.\.si-i:k of Title a.s Between Parties. When Property Passes — Coods ill Hands of ll'arelioitsonan.] — When goods are held by a w;ireliou>eman, an assigmncnt or order for delivery does not pass the property until the warehouseman has assented to hold the goods as the agent of the pur- chaser. Jones V. Jiendersoii, III, 433- Completed Contract — Property I'assing.] — Defendant ordered certain g(-ods through plaintiffs' traveller. Plaintiffs, on 12'h December, wrote defendant that they would consign 01. ly and n<3t sell, Thisletter was never received, but defendant did receive a telgraiu as follows: "Can only fill (irder forty off hardware, forty and ten tlatware, you paying ex()ress, an- swer if satisfactory, ■ Defendant re- plied: "All right, send goods at once." On i6th the goorls were ship- ped. On the same day plaintiffs wrote defendant that the goods were consigned only, and not sold, but this letter was not mailed until iSth. and was not received until after the goods had been received and accepted. The iinoice was headed " consigned to " the defendant. Held {Taylor. ].. disicnting). that there was a completed sale to tb.e 607 SALE OF GOODS. tiOS (309 ir- defendant, and tliat tliu (jropurty in the goods had vested in Inm. .iciiic iiilvcr Co. V. I'crrct, I\', 501. Grain Stored in General Ware- house — Statute of /'VinK/j-. I— When wlieai or otlier merchandise is re- ceived in a warehouse or elevator, nominally on storage for the person delivering it, but on sucli terms tliat the identical goods are so mixed up w'th others that they cannot he re- turned, and the well-understood course of the business is th;it. unless a price is agreed on, the party deliv- ernig the goods can only recjuire an ecinivaleiit amount of tlie same kind and quality to be accounted for to him, the contract between the i)artics is really one of sale and not of bail- ment, whether the vendor is U> re- ceive the price in money or a!i e(|ual (|uantity of goods or has an option to do either, as the prcjperty in the goods has [Kissed to the wareliouseman. In such a case The Statute of Frauds offers no l)ar to the recovery of the price or value of the goods so stored, in case the warehouseuiati de- nies the receipt of the same. Saiitli .hisfralimi Iiisitraiice Co. v. Raiidcll, (i860) 6 Moore P. C. N. S. .-^41, fol- lowed. Lazvlor v. Nicol. XII. 22.}. IV. Rf.medie.s of Venpor. Debt. Although Property Not Passed,) — There may be a right of action, and the relation of debtor and creditor may exist for the price of goods, although the property has not passed, if the parties have made an agreement to that effect. IVafcroits v. JFilson. II M. R., 295. Kircli- hotfcr V. Clcmoit, XI, 460. Sec also Copclaud v, flam il ton, IX, i4,V V. Rkmedh-.s or Pi:pchaser. Horse Suffering' from Glanders - Statutory Offence — Caveat Emp- tor. \ — The Diseases of Animals .\ct 54 \'ie., c. 17, s. 16 (R. S. M., c. 5] s. 25), provides that "Any person who sells or disposes of any animal infected with or laboring un- der any infectious or contagious dis- ease, or any animal respecting which there is cause of suspicion that such animal is infected shall for every such offence incur a penalty of $100." The defendant sold to plaintiff 1 horse suffering from glanders but the trial Judge found that he had no cause for suspicion that the animal was infected. There was no war- ranty. In an action for damages by the purchaser — 1 1 eld. that the defendant was not li.'ible. Even if there had been a breach of the statutory duty, the rule of cai'cat emptor would ap[)ly. Roth- zcell v. .]filner. VIII. 472. Passing Property.]— The deicnd- L'ut, in February, i8qS. while visiting the camp of one Ryan, who was th(.':i engaged in cutting cordwood on a certain limit, entered into a verbal contract with Ry.m by which the lat- ter was to deliver abeut 85 cords nf wood on the station grounds at Mob son. on the C. P. R.. al a point indi- cated by defendant, in p;iymenl of a debt. During the following month Ryan hauled out ;ind piled about S5 cords of wood in the place indicated, and notified the defendant thereof, lie also haulel out and piled in dif- ferent parts of the ^anie grouml about 1.500 crds besides. The plaintiff, to whom also Ryan was indebted, obtained from him a chattel mortgage, dated 7tli .\pril. 1898. covering the wood delivered for defendant and a large quantity of other wood piletl at the same sta- tion. This mortgage was registere ! in the proper office on the 14th of th,' same month. A few days after, the defendant went to Molson, acccjited the 8^ cords in question, and h;id it shipped away, when the plaintiff replevied all he could find of it. //.'/(/. I, CDubuc, J., dissenting), that the facts brought the case witliiyi did 009 SALE OF GOODS. (ilO rule 5 of section iS of Tlic Sale of Goods Act. 1896, and that there had been a contract for the sale < f iiii- .iscertained or future goods by de- scription, and a sutflcicnt appropria- tion afterwards made by the vendor of goods of tliat description and in a (leli\-crable shape with the assent of the buyer to pass the pro()erty as soon as delivered at the station grounds, and that such was the re- >ult notwithstanding tlie value ex- ceeded $50, as section 4 of tlie Act only provides that such a contract shall not be enforceable by action ami replaces section 17 of The Stat- ute of Frauds. 2. That acceptance of the wood by defendant sutificient to satisfy section 2,}, of The Sale of Goods Act was not a condition pre- cedent to the passing of the property. 2.. (Killam, J., dissenting), that the facts, althougii slKnving an inimcdi- ;ite delivery by Ryan to defendant within the meaning of section 2 of The Bills of Sale Act, R.S.^I., c. 10, did not warrant the conclusion that there had been the actual cliange of possession necessary to satisfy that statute, which must be such a change as is open and reasonably sufficient to afiford public notice thcre.if, as ex- pressly provided in the correspond- ing Ontario Act, and therefore that the plaintiff's chattel mortgage was entitled to prevail over defendant's title. Bernhart v. McCutchcon. XII. Warranty _ Action Previous to P'n'iiH'iit of Purchase Price — Meas- ure of Daiiuiges — Misjoinder of I'laintirT.] — Action ujion a warranty ).;iven on sale of second-hand ma- chinery " good for twelve months with proper care." The action was brought in the name of two persons, to one only of whom the warranty had been given. Held. I. That no (objection to the frame of the suit having been taken at the trial, the Court in Term hftd power to give judgment for the pro- per plaintiff. 2. That damages could lie recovered for a breach of the war- ranty, notwithstanding that tiie pur- chase money had not been paid, pnjmissory notes ha\ing been given for tile amount. Church v. A\>ell, I S. C. R. 442, distinguished. Cooli V. Thomas, V'l, 2S6. Warranty of Title — Ozcnership, liz'idenee of.] — In an action for breach of warranty of title it is neces- sary to prove at the tri.il that the title was n(jt as warr'inled. Defendants, imder warrant against the gootls of one Mitchell under the distress clause in a mortgage execut- ed by him, caused the animals in (|uestion to be offered for sale by public auction, wIimi the plaintiff pur- chased. .'\fterwards tlie animals were taken away by one Black, who claim- ed they were his, and the plaintiff brought a replevin suit against Black to recover them, in which he failed. At the ti ial of the present a 'tion upon defendants' warranty of title, defendants' counsel admitted the fact that judgment in the replevin suit for the same aiiimaU liad been entered for Black. field, that this was not sufficient evidence that the animals had not be- longed to the mortgagor at the time of sale. Kiicter y. flainilton Provi- de nt .S'ociety, X, ,^74. Warranty of Soundness of Horse .]feasure oj Ihvna^e.',.] — I'hiintiff sued upon a pr()miss(jry note gi\en to l-,mi by defendant U])Oii an agreement for the sale of a h(.)rse. A condition of the agreement was that the property was not to pass to defendant until payment. Defendant filed a counter-claim for breach of an alleged warranty that the horse was Sound. The horse was delivered to defendant ;ind used by him for some time, but died before maturity of the iKJte from a cau'^e not connected with the unsouiidne-s compl.ained of. At the trial, the jmy found that there was a warraiiiw that the horse was unsound, and th.it the difference in value between (he horse as it was, when delivered, and as it would have been if sound, was $go, for which amount a verdict was entered for de- fendant on the counter-claim. Held, I, Tiiat the consideration for th(^ note was in part the bailment. H • ' 611 SALE OF LAND. 612 and in i)art the promise of tin- vciulor io sell. J. 'I'hai an aclioii lay fur the breach n the manager, not knowing of plaintiff's claim. Ifrhl. that the defence of purchase f'-r xn'inc without notice could not prevail .ig.-iinst tile plaintiff's title. Bvycc V. Mcl/)onaUi, IX, 297. SALE OF LAND. I. Rescission nv \'i:xnoK. II. Rescission dv Pi'iu'iiaseu. III. TiTi r: OF Vendor. IV. Rights and Liabilities or Par- ties. V. Remedies of Vendor. \'\. Rkmehies of Purchaser. I. Rescission n\ Vendor. Recission and Specific Ptrform- ance — .Wnt-Paymciit of hislahnent — I'oik'cr of Sale — Specific Perform- ance or Rescission.] — There is .1 (li-lineiidU iielween a bil! for specific performance and a bill askiug tliat a lime ma\' be ti.\ed for pajinent, and, in default, rescission. The principle uiKin which the Court acts in decree- ing cancellation of an agreement for the sale of land is practically the .sanie as that on which f(3reclosure of a morigage is decreed. Consecpieinly, a bill for rescission may be filed fi'ir (kf.-uilt in i)ayment of an insl.almeiu. rdlhough the whole purchase money may not be due. An agreement for the sale of land pro\ided thai u|Min liefauh the vendor might re-enter or rc-se!I. 1 1 eld. that without exercising these powers the \endor might file a lii'.I ior rescission. West v. Lynch. \'. 167. For Non-Payment — Parties — I'leadint^ — U'ai:'cr.\ — Distinction between a specific performance suit ;md one to rescind a contract in case of failure to perform by a sjtecified lirne. The iilaintiffs agreed to sell to B. certain lands upon certain terms. B. j);iitl a p(n-ti<)n of the pur- chase money, and afterwards con- veyed to the defendant. Afterwards, the plaintififs removed certain Imild- ings from the lands. The I)uilding3 were large and built upon stone foun- d;\tions, a portion of which, either originally or by pressure, were be- neath the level of the ground. Upon ;i bill against the defendant alone for payment or rescission, the defendant claimed repayment of the money paiil to the plaintifTs. J I eld, I. That prima facie the bui.d- ings were fixtmx's. 2. That the pur- chaser would have been entitled un- der such circumstances to sue for the return of the purchase money. 3. Thai the present defendant could not re- cGverthe money in the absence ofB. 4. That no decree for rescission could be made in the absence of B., the de- fendant having in no way been sub- stituted for B. as purchaser. 5. To obtain a decree for specific perform- ance by vendor with an abatement from the purchase money, by reason of the removal of the buildings, the bill must be so framed. 6. Waiver Gli 613 SALE OF LAND. eu he Init.d- thc I'ur- IiKmI un- I- fur the ^. Thai not ro- of B. 4. Ill cnuUl |. the (le- 'cn suh- ?. To lerform- Dateinent reason Irn??. the Waiver >« iim>t he specially pleaded. Tlir Hud- son's Hay Cii. V. MacdmuiUl. I\', j,y. For Non-Payment — Rrasoiuihic Time — l'niii.'liii,ii .Issitiiit-r.] — Three of the defeiidanis agreed Id purchase certain lots from the liiid- soii's Bay Co., one-fifth to he paid in casli and tlie l)alaiice in instalments ; time to he of the essence of the ctm- tract. These three defendants sold ti> .Mrs. C, their co-defendant, who aflerwards iiled a hill to roemd the sale on ilie ground of fraud, and for a lien upon tlie lanrl for lur ])urchase money. Pending the litigation, the plaintiff paid off the Hudson's Hay Co. and to(_)k a conveyance suhject to tile agreement. Shortly afterwards he filed n hill in the name of the Company against the same defend- ants for a rescission of the contract. 'I'his was dismissed because the Com- pany had parted with its interest. The plaintiff then gave the defendants no- tice to pay in three weeks, and. in default, he would rescind. Payment not iiaving heen made u|)on the date fi.Ned. this hill was filed to declare the contract rescinded and th.'it the \-ari- ou.s documents might he declared to l)e clouds upon the plaintiff's title. //('/(/, ]. That the time given for rcdemjUtdii \v;is reasonahle, and that the defendant, Mrs. C, was not now entitled to redeem. 2. Upon the evi- dence that tlie plaintiff was not dis- er.titled to relief ;is heing a "prowl- ing assignee." li'icksoii v. I'l'ar.um. III. 457. For Non-Payment — Paynwiit by lustahiiciit — I'ltuilty — lijrctinciit . if- tcr Default.] — A bill by a vendor al- leged that by the contract time for the deferred payments should b' of the essence of the agreement, t.iid that upon default the vendor sliould he at liberty to re-enter upon and re- sell the lands, all payments on ac- count being forfeited : that certain payments on account had been made (not showing whether before or after the day fixed for the last instalment) ; that there had been de;ilings between the parties and an extension of time given " for payment of some of the instalments " (not jcying which of tluni). The |)r;iyer was for a de- claration that tile contract \\;i> at an end and \oid. and that it should be delivered up to be cancelled ; and for pLissession. .\ demurrer wa> .illowed uiion the groimds: 1. That it was m 'where alleged that the plaintiffs had rescinded the agreement, but, on the contrary, f'.y .>eeiiied to liave continued to .a! with and recei\e payments from the purch;i-^er. 2. That the right reserved wa^ in the nature of a penalty, and the plain- tiffs would not be entitled to rescis- sion without limiting a time for p;iy- nieiit. ,v Th;it as to the prayer fur possession, the purchaser in posses- sion lifter default would he a tenant at stiff ranee and nut entitled to a de- mand of possession, lull the bill did not clearly show that the extension of the time given for payment had elapsed. Ifiidson's B^iy Co. v. Mac- donald, \\\ 4H0, For Non-Payment — /.))' Tender oj Relea.te to Xeeessity Morl^^ai^ec if I'urelnhoId tu fi\'e persi)ns. who purchased jointly — Held, that one of the purcha'=;ers, establishing a misrepresentation, could not rescind the contract so far as he was alone concerned, and re- cover his share of the purchase money. Braun v. Hughes, III, 177. IMAGE EVALUATION TEST TARGET (MT-3) / o {/ 7 ^ /.% ^ ^ fe 5r W^ 1.0 I.I 1.25 II2J_ Z2 m ^ "" IIIIM lllll i.8 1-4 1 1.6 P /i ^ ^ /i W/ 0%. s' m . c> reju'r! 5epteni sale to an or- Justicc (li_s])ensing with payment into Court of the pureliase money, and that the liayment he made to the Imperial Loan and Investment Company, mortgag- ees, within ten days after service of a copy of the order, and upon the pur- chaser receiving a conveyance oi the property. No conveyance had heen teiidered to the iiurchaser hcfore this aiipiication ; but it appeared that, on being served witli a c■.] — Where time is of the essence of the contract, the condition may be waived by the purchaser by paying a portion of the money on the day named for completion and consenting to wait for production of title. The 1st July. 1882, was fixed for comple- tion. At this time the title was vest- ed in the Canadian Pacific Railway Co.. but the vendor had a right of purchase under a contract covering other lands, in which other persons had a similar interest. The vendor bad. at the time for completion, paid to the Company the purchase money for his lands, but others not having paid, the Company would not convey. On several occasions between ist July, 1882, and I2th January, 188.V the purchaser asked the vendor to complete the title, but did not press him to do so or threaten to rescind if it was not done. On 12th January, 1^583, the purchaser served the vendor with a notice, re(|uiriiig him to com- plete the title by ist February, other- wise he would declare the sale off. After receiving this notice the ven- dor used reasonable diligence to pro- cure the title, but inasmuch as six weeks ws the shortest time within v.hich a deed could be procured troni the Railway Company, it was not ob- tained by the day named. //<'/(/, that the notice was too short, and the purchaser was not eiilitleil io recover liis deposit. Forticr v. .S"/(i>-- Icy. II. 269. Fraud.] — Defendant H. sold land to C. at $10 an acre; defendant C. sold to plaintiff at $,^0. rei)resenting to him that he was acting as agent for the owiUT. i)laintiff i)urchased. be- lieving defendant C. to he an agent iMcrely. I'laintiff would have made further enc|uiries before purchasing liad he known that C. was the real owner. C. procured H. to convey directly to plaintitT. The considera- tion expressed was the higher price. II. was no i)arty to the fraud. //('/(/ (reversing the decision of T.'iylor, J.), that to the rescission of a contract " there must be a false re- presentation knowingly made — that is, a concurrence of fraudulent intent and false representation : " that the contract having been entered into de- liberately, the plaintitY's statements should have been corroborated ; and, where the evidence is contradictory, the Court ought to be satisfied that the plaintiff's account is strictly true, and that the evidence in the present case was insufficient, and the bill must be dismissed with costs. Hiitcli- iiisoii V. Colder. I, 46. Removal of Buildings by Ven- dor.] — Ihiii.u'ii's Ihiy Co. V. Mac- ili'llilld. IV, 237. III. TiTI.F OF \'ENn0R. Patent Two Years Old.] _ Held. that a recital, in a patent two years old, of a death intestate, is not suffi- cient evidence of the fact, as between 6i9 SALE OF LAND. 620 vendor and purchaser. SutUcrland v. Schultc. I, 13. IV'. KlC.HT.S AND LlAUILITIE.S OF 1'aktie,s. Registration of Patent. | — //,/ ol the vendor to |)rei)are and ex- ecute the Conveyance at his own ex- pense, and a purchaser may maintain his action for hre.ich of the contr.ict without tendering; a conveyance j the vendor for execution. .S'ti'i'i'/i. '; V. iindard, \ .\llen. (X.H.I ,?0'), fol- lowed. Pvsart V. Jh-iDiiiiioiid, \'II, 68. Mortgage Upon Property Sold and Other Property — Puty 1,1 /'dv (,)//'.) — It is the duty of the vendor who has heen jiaid in full, lo dis- charge any encinuhr.mces on the land, and it is immaterial as regards the application of this i)rincii)le whether the encmnhrance was created liy the vendor or residted from the act of a prior owner. If. therefore, the en- cumhrance extemls to other l;inds. those, and not the l.md coiweyed. ;iri,' the ]ir-mary fund for its payment. /'/<■/•(•,• \-. Cdiiai'dii. 7 D. .\. R. i(>4, followed. If those other lands are sul)>e(|uemly sold to another purchas- er, thc\ remain in his hands suhject to tlie same li;d)ility. The encmn- hrance, a mortgage, contained the fol- lowing clause: " Provideil further that the said morttjagee will release ;my portion of the lands herehy mort- gaged on receiving a sum on account of the said principal money eipiival- ent lo, or in ihe r;itio of, fourteen hundred dollars per acre for the por- tion so rtle.ased." The area of the mortgaged premises was such that. computed ai $r,-(00 pc acre, there would he more than suillcicnt to p.iy I iif the amount of the mortgage. //i7(/, that these circumstances would not vary the result. Darics v. White. i() (ir. 31-', distinguished. If the deed to the second purchaser he registered hefore that to liie first, the secoud is entitled to have the lir«t l>urch;iser's property first applied in satisfaction of the inortgagi. Rcn- wiik V. .'U'rryiiiaii. Ill, 3,^7. Mortgage on Property Sold — Piity to I'iiy Off— Ejtot> pel— Recital in the sum of ahout SiO.ooo. executed ;i hill of sale to them of a large amount of personal property. This hill of sale contained a recit.-d that the iil.iimitT had contracted and .'igreed with the (kfeiidants for the alisolute sale to ihem of the same and of the etpiity of redem|)tion in the land, in (pieslioii granted liy him to them hy deed of e\e!i date, in consider;ition of the release hy the defendants from his ii!d,ehtediiess to them: and on the s;ii;ie day the plaintifT executed a conveyance of his ecpiity of redemp- tion in the lands mentioned to two qi the defendants for the expressed cnn- > (h r;ition of $i.0(X). The C'hief Justice, who heard the ciuse. found npini the evidence that there was no verhal ;igreement to iii- ilemnify the iilaimilT against the mortgage referred to, and that the defendants iiad not purchased the lar.ds in the ordinary sense of thai word, hm had merely taken the con- \eyance of the ecpiily of redemption as security, intending to make good to ])laintiiT any surjjlus wliich they might realize out of the propeny transferred to them. ;ind at the same time to release the plaintiff from all hi-- liahilities to them, //«•/(/, that under such circum- st;inces. there heing no expressed stipulation on the stiliject. the right to inilemnity arises from the sale of the encumhered land and not from the mere convcvance; and that such ■4en^e of the words, that such right of indenuiity arises. Held, also, that defendants were not estopped by the recital in the hill of sale from denying the fact of their having purchased the property, anil that such a recital does no^ operate a^ nn estoppel unless in an action di- rectly fomided on tlie instrument con- ti.iiiing ;he recital or in one which is hrotiglit to enforce the rights arising out of -lu-li instrument. I-tillcrloii v. \'. Ki:.Mi:i'iK.s oi- \'i:ni)or. Lien — Liiclirs.] — l.apse i>f time which would disentitle vendor to specitic performance may not affect his lien. c7(/r/.-i' v. Scott'. \'. jSi. Executed Contract — l\-rl'cil S(i>.' of I.iiiul.] — A connnon l.iw aclion for a halance of the purcha'-e money of land sold under a verbal .igreement cannot be miiintained. although the deed has been delivered. Cockiit!; v. //■erties, but not to ;i personal order against the innocent vendors. Cuiiniiiiis v. Con- };rL\iiiitiiiihU Church. [V, .^74. Return of Deposit — Rescission. \ — //(•/(.', that where a contract for the I)urchase of real estate is rescinded, owing to the default of the purchas- er, lie cannot recover back his de- posit. Rol'crtson v. Ihimblc, I, .321. Si also CoNTi<\(Ts, V i'EKI'DKM.KNCE. Sl'EClFIC SCHOOLS. Sec (1\ li N- 1 S 1 1 .\t K .\ T , 1 : P U It 1. t c Si. iiooi.., : Ta.n.\tu).\. II. SEAL. Adoption Of— />>■ ci Corl^oi\i!ii'ii.\ '—Sec T.watio.n'. IX. See also Cori'ok,\tions, \'. SEDUCTION. What Constitutes Relation of Muster and Servant. | — The jilain- tilY >ned the defi iidruil for the seduc- tion of her daiighti'r. a girl fourteen years of age. .\l the time the -educ- tion took iilace. the girl was living as a domestic serv.int at the defeiidant'.s house, under the following circum- si:.nce> : The plaintiff ni;ute a con- tract with the defendant, in the daughter's pre-ence, that the daugh- ter should enter his service for $S a month. The wages were to be jiaid to >hv mother. For the plaintitT it was contended that the defendant's contract was 623 SHERIFFS. 624 u - I 1 III I ,'! with the motlicr. that tlic daughter rciiiaiiifd all tlie time in tlic >ervice of tile motiier, and (hd her work as the servant of the mother under tlic mother's contraet with defendant. Ihc jury fornd a ver(hct for plain- tiff. On a motion for a non-suit — Held, that under sueh eircunistan- ees the only proper inference was that the fiirl was to ser\e the defendaiit alone, as her master in the ordinary vay. and there was not sufficient evi- dence to warrant the jury in finding that any hut the ordinary relations of ii'aster and servant existed hetween the girl and the defendant, or that the girl remained the servant of the niother. and was to do her work in tliat capacity. I'cr Killam, J. — There iray well he a case in which a master Irires out a servant to do work for a third i)arty. and in which there would he no con- tract at all hetween the third |)arty and the servant, who would remain all the time in the original service, thcnigh hound to ohey such com- mands of the third jiarty as were im- plied hy the nature of the emi)loy- intiit or the terms of the agreement. Carr v. Chirki\ j Cliitty, jfio. com- mented on. //(•/'/' V. Lawrence. \'II. 222. SERVICE. Sci' PU.VCTICE, XIII. SET-OFF. Trustee of MIoney Acquiring Claim Against Beneficiary.] — A jjcrson whilst holding a sum of money in trust for ,A. and B,, pending the decision oi a suit of .\. against B. may acipiire an overdue promissory note of rme of the parties, and upon the settlement of the suit may then ?et-off any halance found to he in his han for the defendant's failure to execute a warrant of distress issued hy two justices of the peace under The M,is- ter and Servants' Act. The warrant was addressed to all or any of the coicstahles or other i>eace officers in the district of Carherry. and was handed to the defendant, a sheritT's hailiff. He at first undertook to ex- ecute it. hut afterwards on taking ad- vice refused to go on with it. and re- turned it to the plaintitT's attorney. Held, that a sheriff's hailiff is not a general hut a special agent of the sheriff who employs him. and cannot he treated as a puhlic officer or as a peace officer within the meaning of suh-section 8 of section 3 of The Criminal Code, 1892, and that the de- fendant had no right to execute the warrant entrusted to him, and could 625 SHERIFFS. 02« not l)c made liable for refusing tn do so. Latta v. O'a'ciis, X, 153. II. Compensation. Poundage nnd Possession Honey.) — A slienlT made a >ei/iire. and a claim liaving been made nti the go'ids. an interpliader issue was di- rected. Securiiy not lia\iiig been given, t e slioritf suld the poods. IJtfore trial the piainiilT aiiandnned. nnd an order was made for paynient by the plaintiffs to the claimant, and the sheriff, of " their co>t> ncc.as- ioned !)y said intcri)leader urder and interpleader issue." 'I'his order was ainended. and the i)laintilt"> were further directed to pay the sheriff's possession money and other expens- es occasioned by the sale, and the costs of the sale. L'pon appv.il from tlie settlement of tlie siierirt"s ac- count — //('/(/, I. That the sheriff was not entitled to poundape. 2. That tl-. sheritT was entitled to possessio". money and other expenses by the terms of the orders, which bad not been appealed. 3. That under tl;e ion n'.oney was not unreasonable ; nor circmnstanccs Uic charge for posses- was $2 a day too much to pay a man for keeping possession. 4. A charge of $2.40 for taking a man out of pos- session was disallowed. 5. Adjourn- nitnts of sale allowed at tiftv cents each. 77/1- Maiiitoha & Xortli-U'cst- (•;•;» l^oaii Co. v. Rontlcv, III. 521. Ifl. Powers, Duties and Liabilities. Compelling Sheriff to Execute Writ. )— ,U(f)i(/(i;;M(.f is not the pro per proceeding to comjiel a shcriiif to execute a writ. A motion for a rule should be made. Black v. Kcnucdv, T. W.. 144. Negligence in Not Levying Un- der Execution _ Sheriff Hound to Lc7'y on Chattels. Though Mort- KOKi'd — Ihtty of Sheriff as to Thresh- ing drain — Chattel Mortf^a^e — .Iffi- da'it of liona 1-ides Made hy " .Ic- lountant" of Mortiiaj^ees.] — In an action against a sheriff for not levy- ing under an execution, it appeared that he had abandoned the seizure and refused to do anythi'.g further on finding that there were three mortgages on the debtor's goods and chattels, prior to the execution; be- ing of opinion that the aggregate an:ount ;ipp;irent]y securcil by them would exceed what he coidd realize by sale of the chattels after payment of exi)enses. One of the mortgages had. iii fact, been satisfied, and the sheritT could have ascertained this on eiupiiry. .Xn- nther was not proved at the trial to be valid un-uine that it would, although sucli would prohahly he the case. It is clearly the sheritY's duty, not- withstanding the use of the word " may " in the statute, to seize and .-ill the e(|uity of redeini)tion in niort- g. (led chattels when such etjuity is vi.Iuahle. Mdsscy MaHujucturittg Co. v. Clement. IX, 35Q. Action Against Sheriff — Proof of Jiul^iiinif.\ — Held, where some third party brings ;in action against tile slieriff for seizure of goods under an execution, and establishes a frimn faeie case of title as ;igainst the exe- cution debtor, the sherilT must prove a judgment as well as ;m execution. White V. Morris, it C. B. 1015; .-It- biiisoii on Slieritfs (fith ed. ), .^04, fol- hnved. MeLean v. Ifannon. 3 .S.C.R. 706, and Cr(Ks.'e v. .Uhiins. 21 S.C.R. ,?4.!. distinguished. KireliliolTer v. Clrnient. \l. 4(10. Landlord and Tenant — i'nty t.> I'ay l\'ent.\ — Where the landlord, un- der 8 .Xnne, c. 14. s. 1. ni;d, to wit. on the twenty-first day of .\i)ril. 1.^84, the saiil matters in the said writ contained liaving been brought before the said Court for alni, X, 400. Covenant to Act as Agent.] — • Specific performance of a coven;int to r.ct as the agent of another will not he enforced. Bentley v. Bentley, XII, 628 ti'jy SPECIFIC PERFORMANCE. 680 Shares iu Company — .Isscnt of IHrcctors A'l'ii-.wurv. | — Wlicru shares cf a Company cannot Ik- transferred V itliout llio sanction of tlie directors, ilic Court will not order a transfer, it having no power to carry it out. Bell V. Xorth'uuiod, III, 514. Agreement to Pay Creditors _ Ci editors Xot Xcccssiiry l'artii's.\ — I lie plaintiff filei' a bill to enforce the prixisiniis of a chattel mortgage, by uliicli the defendants agreed with the plaintilY to [)ay Ikt creditors. The creditors were not parties to this agreement. The prayer nt the bill was in the alternative — that the money found due under the. agree- ment should be paid to the plaintiff, to be applied by her in paying the cieditors, or that it should be paid iito Court for the bcnetit of the cred- itors. On demurrer for want of parties on the ground that the creditors should have been parties to the suit — Ifrlil. that the creditors were not necessary parties on the grounds. That in case the plain. uT should suc- cceil, if the inoney were paid into Court, the creditors' interests would W: amply s;ifeguarded. and the de- fer.'lants protected against any future deinnnd by them. That, as the creditors were not parties to the agreement on which the suit was brought, their rights against the plaintiff could not be barred by this suit, (iillics V. Coiniiicrciat Hank of Mijiiitoha, IX. 165. Mistake _ I'nihUcnil — When Gfouml of Relief.] — Specific per- formance of an agreement will not be refused on the ground of a mis- take of one of the parties to it where the mistake was not known to the other party, and there was nothing in !he hingiKige or conduct of the other piirty which led or contributed to the mistake, unless a hardship amount- ing to iniustice would be inflicted -.ip- on the party by holding him to his liargain. and it would be unreason- able to hold him to it. or give the ot|-.er jiarty an unconscionable advan- tage. Tewf^lin v. James, 16 Ch. U. _'i,^, followed. Miller v. Ihiiil. I.\, 444. Evidence — Certainty of I'roof.] — The certainty of proof in a suit for s(K'citic performance is greater thin in att action for damages. Tail v. Catlo:eay. II, .'S(j. Laches — Pefjeieney in Land — /'(/;■/ Tahen hy Railway — ■ Siib-l'ur- ehasers — Parties. \ — On 30th Janu- ary. iSSj. plaintiff agreed to sell lot .!,^ described as ijS acres, to defend- ant 1.. Shortly afterwards defend- ant L. agreed to sell the same land, de-cribed as III acres, to another de- fendant, who agreed to sell it to oth- er defendants. There were in reality about lu' aces in the lot, and of this I A acres were fiwned by a Kail- w;iy Company and used for their tr;u-k. The agreements were made during a period of great excitement in real estate. .After its .abatement, neither party took any steps to carry out the agreement, beyond the ren- dering of an account by the plaintitif to the defendant and a letter threat- ei-.ing proceedings in 18S5. atid be- yr nd an enf|uiry by the defendant L. as to the state of the title in iSS,v //<•/(/, I. That, under the circum- stances, specilic performance ought ikH to be decreed against L. 2. That the proper decree against the sub- purchasers (who had not answered) vwas to flirect a reference to the .Mas- ter to enquire as to title; in the event of his finding a good title, to take an account of the amount due for pur- chase money and to fix a d;iy for i)ay- ment ; on payment. i)lainlitt to con- \-ey; on default, rescissinn; if title good at time of filing bill. plaintitT's costs to be added to purchase money. Xi.von v. f.offie. ]V. 366. Damages — Fusion of Laze and l:(;nily.\ — The defendant agreed to sell to the plaintiff certain bands by a memorandum in writing which the plaiiililf registered. Subserpiently the defendant sold at an advanced price to H.. who sold to another. On a bill filed for specific performance, or damages, after the defendant had sold to H.— "■ !■.» :!!jF I MV.' ■ •ill' I: y I t !,^' 631 STATUTES. 631! //c'/f/. tliat the Court could give ro- lief hy awarding damages In the plaintiff witlidui comiielling him t" commeiK-e an aetinii at law. The foiirt of Queen's Hench pos- sesses fnll power to gi\i' aiipropriate relief witliont regard t'• . /,;'i;i<-.v Ci). V. Munis, \'1I. 128. II. Construction in Gknerai.. Conferring Exemption or Priv- ilege. | — Statutes conferring exeinp tions or i)rivileges in derogation of ilie general l;iw must be construcl strictly. London t'r Cmhidinn Loa^i I'r .•/,t;<'»(cy C"('. V. Coniiell. XL 115. Relating to Procedure — linfera ti''C.\ — I'jiactments prescribing pro- cedure in the Courts are to be con- strued as imperative. I'rcnch v. :jartin, VIII, 362. Sec CouNTv Courts. Ill (c). (ff). (1); Ei-Ections, III (1); Taxa- tion, I. II, III. III. Construction in Particular Cases. Notices to be Given — .Wot Signed.] — A statute provided that a notice of appeal from an award should be giv- en to all interested |)arties. Held, that the iKMice was sufficient if signed by the attorney of the party appealing. Re Scott and the Rcuheay Coniiiiissioner, VI, 193. Crown Not Named — Construc- lion.] — The Public Works Act, 48 \'ic., c. 6, furnishes no authority to m STATUTES. 684 take ci)mpul,'rade into ^ixty-ihree nules of rad- way. .Iltdnifx-Gciu'ral v. Ryan, V, 8i. Prohibitory Provision— /Vt-jcrifc- i.'/.i; (/ Riu/iiisiti- — " I'crso)!."] — A statute provided that a certain thing should not he done " without applica- tion to the railway committee for ap- proval of the place and mode," etc. Held, that the Act ref|uired that the apjiroval should he obtained and not merely applied for. The Railway Commissioner for Manitoba is a "per- son," and may be enjoined from pro- secuting the construction of a rail- way. Caiuidiiin fiiciCic Railway Co. \. Xortlwni I'aciHc & Manitoba Rail- way Co., V. .?oi. " Now or Hereafter in Force."] — The words " now or hereafter in force " read as " which now or here- after have been enacted or made and remain unrepealed." Craivford v. DufUchl, V. i-'i. Procedure — Filinfi Copies.] — Al- liiougli the statute requires that two ci.pics of the preliminary objeclinns are t decision within sixty days is a mere matter of procedure, and the delivery jdered only ;in irregular- ity ; ih.it the proper remedy was to .ippeal against the judgment under the provi>ion> of The County Courts .Act : and that in the exercise of the cii^cretion of the Court, under all the circumst.-inces of this case, a writ of prohibition should be refused, more especially as defendant was not pre- iudicerl by the delay in rendering iudgmer^ and it was shown that l>laintiJT did not intend to take any steps to enforce tlie judgment in this 635 STATUTES. ();sfl Pruvinci-. f.lS. l>i>id)iC V. Miniiiis, Xll, M ' •• Raising Money."] — An Act (tf iiici>r|ii)r;ili(m gave tlic dirccior^ IKiWLT to " i.',siR- and M'll nr plcd^'e all or any of tlic said bonds icjr tlic prrposi- of raising; inoni'v for llic |)ioMfiition of till' said nndi-ri.ikin^;." //(•/(/, tli.it tlif c.\pit's>ion " raising Mil iicy " should l)c Riven a liijural CI nstniction, ami that (U'lmsiting tiie lionds as security for tin- payment of gcods was really a raising money for the |>roseculion of the undertaking. Il'iiniif'i'^. lilc, Railwiix Co. v. Mann. \ II. 8i. Railway Company _ Luihiliiy for I'l'hls of I'rr-i'ious Company.] — .\iter the S. i*t K. .\1. Railway had incurred some liahililies, its ninue was by stat- ute changed to the X. W. C. Railway Co. The Act i)rovided that " the ex- isting liabilities of the Comi)any for w(.rk done for the said Comi)any shall he a first charge upon the undertak- inii'." .A further .Act jn'ovided that " tite Company sh.all remain liable for all debts due for the construction of the railway, and if sue i debts arc due to contractors, shall cause all iust claims for labor, etc., to be paid by such coiuractors." .\fterwards a ciiarter was issued to tiie G. N. W. C. Railway Co., in which that railway covenanted with Her Majesty to pay all debts due by the above-named railways, " anrl will cause all just claims for labor .etc., due by contrac- tors to be naid by such contractors." L'lMin an intormation against the last- named Railway Company, and cer- tain contractors oi the first-named railway, to enforce the covenant — //('/(/, 1. That the railway was liable only to the extent to which the pre- vious railway was liable to its own contractors, and not for sums due by such contractors to workmen beyond the amount of that liability. 2. If otherwise, the workmen ought to be parties to the bill. Attorney-General V. Macdonald, VI. 372. Persona Designata — Chief Jus- tice Sitting in County Court.] — By 42 Vic. c. I, s. 4 (Man.), it was en- acted that the County Courts should be held by the Chic/ Justice, or i>y one of the I'liisnc Juilges of the Court of (Jueen's jk-nch, until othei- wi>e provided by law. The CiiKi Ji.stice sitting in a County Court pur siiaiit to tln> enactment, rendered a decision res])ecling which the defeiui- ,1111 p'lblislu'd a libellous article \n lli^ newspaper, IlihI. that the Chief Justice, wIkmi sitting in the County Court, was per- forming a judici;il act incident to the I'tlice of Chief Justice, and wa-. nut merely a Judge of the Coutny (."ourt, and that the defendant was liable to be committed for contempt of Court for his libellous publication. Remarks on the extent to which judicial acts may be criticized. Ren. V. Ro'a'e, T. \V., 309. Persona Designata — " Jiii{^e."\ — Section 258 of The Municipal Act, iStjo ( R. S. M., c. 100. s. ,385), pro- \ ides that: " In case a resident uf a Muiiicii)ality, or any other person in- terested in a by-law. order or resolu- tion of the Council thereof, a|)])lies to a Judge of the Court of Queen's llench sitting in Ch.'imbers the Judge. ;ifler .it least ten day^' ser\ice on the Cor()oration of a suin- luons, or rule to show eausc in this behalf, may (juash the by-law. etc. //••/(/, that the term "Judge" m tin- statute is persuna (lr.iif.;notii. and only the Judge who is>ued the rule or summons can hear the apjilication mi its return. Jhivlr v. Puffcrin. \'I1I. Agricultural Society.] — The stat- ute of iSSij. c. _'4. s. },},. empowering the Municipality of Rockwood to guarantee a loan to the Society, " to be effected or procured for the jiur- pose of erecting buililings and the im- ])rovemeiU of the grounds of the said Society," could not be construed as giving the Society any power which it had not before, for a misapprehen- sion of the law by the Legislature has not the efifect of making that the law which the Legislature had erron- eously assumed it to be. North- West Electrie Co. v. Walsh, (1898) 20 S. C. R. 3,?. In re the Rockwood 637 STATUTES. Electoral I'ivisum Agruultural So- ciety. \\\. 055. Northern Pacific & Manitoba Railway A.cX.\—Scc Injlm tidn. i. .SVc- also CONSTITL'TION.M. L A w ; Co I- N r V CoiKTS, HI (<) ; F'"R.\fl)ll.ENT CoNVKVANl ES, I; HiDSfiNs Hav Co.; Intoxuat- iN(i LiyroKs; Ijmei. ; Works. IV. Rktro.si'ective. Procedure — .\ftcal.\~\Uvr ;m awiifd .111(1 licfdrc till' iNi)ir;itioii of tlu linif fur jipiH'.il. :i >t;iliitt- c;uik- into n|)iTatinn ;iiiH'iii!iii,n tlu' i)rcvii>u>< pnnisiiiiis ri'S|)ci:tiiig ;ii)|)t;il>. Held, tliat tin- new .■^taiiitt. aiJpliod to till- casi-. A'<- .SVo." nu: Tlir Nail- way C'l'iinni^siaiicr. VI. i(),v ail ;i(.'- had a action Ctiurt Procedure C".s/t. | — In lion nil coiUraci tin- plaintiff Ncrdict for Sioi. \\ lu'ii tlie was comiiHiici'd, tl;c County h.id jiirisdiciion up In $_'5o, hut when ihc ainiiiuit claiinalili' exceeded $100, the case could he hrought in the Queen's Ilciicii. In such case, if tlie verdict exceeded $joo. full costs vere given, hut if le>s than $200 and more than $100, costs upon a lower scale were ta.xed. Pencliug the ac- tion an Act provided that " In case an action of tlie jiropcr competence of the County Courts he i)ri)uaht in the Queen s Hcncli." County Court costs onl\' sliouUl he allowed, ;iiul that sul'ject to a set-o(T of Queen's ficnch costs, unless the jire^iding judjie ccrtitied otherwi-e, //(•/(/, that the st.itute although passed after the case was com- menced, governed the question of costs. Todd V. The ( 'nion Bank of Canada, VI. 457. Procedure — Qnccn's Bcni'li .let, .■i'95. s. 31 — Refiistciing Certificate of Peerer- for Alimony — Retrospec- li'i'e Legislation.] — ,\ decree for ali- mony, although obtained before the coming in force of The Queen's Bench Act, 1805. may, under section 31 of that ,\ct. be registered against !and>, as legi>.lalirn\iiig the rem- idy. is fritna facie apiilicahlc t" e\- •-i;iig proceei'ings or rights. l-,iulds '. . I i'Ulds. .\ll. >^i). Foreign Corporation Licenses. | — The plainiilVs cI.-uuh-iI ,1 luii '<\\ certain lands of deiendaiits fur the balance nf the price ni an engine Mild to them in iSSr„ under a urii- leii contract signed by the (lefeiid- .iiits niickr seal, l)y which tiicy agreed tn purch.'ise the enguie for a cirtaiti price and to give ilieir prom- issory iMies therefur, ;iud lii.i; the notes should bo a charge ,)ii the lands in question. .After the mak- ing lit tl.e contract, the panics .'greed to substitute a iiid-h..iid engine at a lower jirice i'lr the cue described in the cmiiract. T). 'e was n.( covi'iiaiit or e.xpres.s (ui :ii,,e I '.(' pay the iimiicy in the inliact, .Mid the el;iiiii cm the notes wa- har- '• d liv The .Statute of Limitations. The plaiiitil'f t'liiiiiiany was iint li- censed under The I'oreign Corpora- tions Act. R. S. M., c. J4, s. I,?, to lalse, hold or acquire :iiiy real estate in this Province. Held, that this statute b.ul no retrospn-tise effect and cmld iir.t be .cnslrued so as to prevent the plain- lilTs fruiu realizing .a ch.irge on lands which they had ,:C(|uired before it was passed. Walerotis Eni^inc lI'orL-s Co. V. intsoii, XI. jS;. Limitation of Actions.) _ The plaintifT sued for an injury sustain- ed by the negligence of a fellow- workm ■\. The .iccideiit causing the injury occurred in .M;iy. 181)4. ^«'^ notice of the injury h;id been given within twelve weeks, and the action was not commenced until ist Octo- ber. 1805; s) that at the time of the passing of chapter 4^ of The Stat- utes of 1803, the iilaintifT's right of action for the injury under The Workmen's Compensation for In- juries Act. 56 Vic, c. .vj. had ceased to e.xist by virtue of section 7. By the amendment of 1805. however, this section was repealci)lication exercised a discretion and dismissed the application is no bar to an appeal. I'cr Killam, J. — It was not a case for the exercise of discretion. The fact that in the first suit a married woman was suing alone, and in the second, that she sued by a next friend, is no ground for refusing the application. Hind v. U'hitnwrc, 2 K. Si J. ^58, considered. I'cr Taylor, C. J.— 1. The test of the identity of the suit is, whether ihe bill in the second suit could have been produced by a fair amendment of the first. Hut the proceedings will sometimes be stayed although the relief sought in the second suit could not have been obtained in the first. 2. That there is new matter in the second suit; that the relief sought is not exactly the same; or that the parties are not identical in both suits, is no ground for refusing to stay proceedings. McMickcn v. The Ontario Bank, VI, 155. Identity of Action. ]_Thc plain- tiff had, before The Queen's Bench •Act, 1805. came into force, brought an action to recover the value of land claimed to have been sold for taxes when none were in arrear, in which action defendants had recov- ered judgment for their costs by de- murrer to the declaration. Pl.-iintitf then brought this action, clain.ing under sub-section 5 of sec- tion 38 of The Queen's Bench .\ct, iS';5. a declaration of right to com- pensation and damages. He had not paid the costs of the former ac- tion. Held, following Cobbctt v. War- ner. L. R. 2 Q. B. 108. that the relief •nought was substantially the same as in the former action, and that pri>- cceding^i should bo stayed until the ccsts of it were paid, demons v. .]'iinieipality of St. Andreiv's, XI, Former Action Out of Court.]-— .\ defendant is not entitled to a stay of proceedings until the costs of a former action for the same cause of action are paid, when more than a year has elapsed since the entering of appearance in the former action, ;i)id no further proceedings have been taken therein, ;uid the plainiifT is consef|uently out of Court. I'.wart V. Hanover, VIII, 216. II. Action on Foreign Judg.ment. Terms of Stay.]_The plaintiff w;u proceeding to enforce in the Courts 6tt 641 STREET RAILROADS. G42 Durt. 1 — \ stay (">f a auso of than mering action, , liave olaiiUifl iMENT. It iff was Courts of this Province two jiiclgments ob- tained in Ontario against deft'ndants for a hirgc amount, one of which j judgments Iiad l)een entered by con- ! >int : and the Company was at the ! same time going on witli proceed- i irgs in tlie Ontario Court for the pi'.rpose of Setting asitle the judg- ment on the ground tliat the con- sent liad been given in fraud of the Copipanv, and tliat there liad been collusion between the plaintiff and the president of the Company, and that there was a good defence to plaintiff'*; claim on tiie merits. It appeared that the Company wa's act- ing in f^ood faith in their proceed- ings, that the expenses connected with the same would be very great ,ind would have to be dui)licated here if the action in this Court proceeded. The defendants then applied for a stay of proceefbngs in this action un- til the determination of the litigation in Ontario. field, that the proceedings should be stayed upon terms securing as far as possible the plaintiff's claim and upon defendants agreeing to abide by the re«u!t of tlieir litigation in Ontario. Charlcbois v. The Gr''at Xorth-U'cst Central Raiheav Co., IX, 286. III. Power of Coi-kt. Improper "Use of Process.] — The Co'irt may of its own motion at anv time direct an enquiry as to any fraud practised upon it or any improper use of process. Rf .l/i/r- iiucttc Election: King v. Roche, XI, IV. .Action Without Ai'thouity oi' Pl.mntiff. Delay.') — An action vas com- menced and carried to trial without the authority of the plaintiff. Dur- ing or immediately preceding the trial the plaintiff first learned of its exostence and then told the defend- ,.nt that he (the plaintiff) had nothing to do with it. The plaintiff took no s^teps to stay the action, and, the de- fendant having liad a verdict, a mo- tion for a new trial was made on the plaintiff's behalf, which was refused. After judgment and execution, the plaintiff moved to stay all proceed- ings. Held, that the plaintiff was en- titled to the rule as asked. Senthle — A defendant at conmion law may call upon the |il;iiiuiff'i at- torney to produce his authority for instituting the action. It is not so in equity, Curey v. ll'ood, II, 290. See also Action's ; Costs. Ill (t-; Pk.xctice, XV. Appe.\l, VIII; : Eject.ment; STOPPAGE IN TRANSITU. Termination of Transit by Sheriff — .hisolz'ency of Ci>nsi:^nee — f'yoof.] — Gixjds while in tnmsit vvere seized by a sheriff under an ex- ecution against the assignee, and re- moved from the custody of the car- rier. Held, that the consignor could not. after .-uch removal, stop in tran- situ. Semble — i. By insoh-L'iicy. in such cases, is meant a general inability to pay debts, of which the failure to pay one just anil admitted debt would probably be sufficient evidence. 2. A \endor who in good faith am' in ig- norance of the embarrassed circum- "tances of a custO!ner. sold goods to him, may. on discovery of the cus- tomer's insolvencv. exercise the right of stopnnge io tr.insifu. Cctitiire v. Mek'av. \'I. ->;?. STREET RAILROADS. Accident — Xeglii;ence.] — The plaintiff's claim was for damages for an injury to herself arising from the alleged • "gligence of the defendants. m m M8 TAXATION. 644 It-/,- 1' m< She was sitting in a skigli witli a team of licirsfs attacliud staiuliiiR at tiio side (if till- road, \vl)cii aiiollicr team of horses with tiicir driver and a wagon were coming oft a briilge near liy just as a car of liie defend- ants was approacliing in an opjiosiie direction, and at a higli rate of sjieed as was alleged. Tliis latter team showed signs of terror, but the iiKitorman driving the car did not slacken speed, and the frightened team, as soon as it got clear of the bridge and iiast the car. got beyond control of the driver and ran into the plaintiff^ team, with the result that >he was thrown out and injured. The jury returned a verdict for the plaintiff. //<■/(/, that there was sulTicient evi- dence, if the jury believed it. to war- rant their verdict, and if their ver- dict was right on the evidence the negligence of the motonuan in no; slackening .si)eed or stopping when he saw. or should have seen, the frightened team, was the direct cause of the injury to the plaintitT; and that the verdict should not be dis- turbed. Although a Street Railway Com- pany may be permitted by its charter to run its cars on the i)uhlic streets at high rates of speed, it is not, there- fore, relieved from 'he duty of exer- cising i)roi)er care in prevent acci- dents. Lines V. n'iiiiiipi\i; lilcctric Strci-t Rail'a-ay Cc. XI, 77. Scr also MfNiciP.vi Coupok.vtions, IV. STYLE OF CAUSE. Si'c Interpleader, IV. SUNDAY. .S"(-<' ClUMlNAI. L\W. \'nr, TtME. SUPREME COURT. Sc\- .Xppe.m., Ill, \II. SURETY. Examination of Surety — Scope ('I (Jiicstions — riisdlisfiictory .hi- s:ecrs — /v'i7"-si".!,' lo .Iiis'ikci- Qucs- tions.] — Upon the e.xaminatinn a> to his solvency of a surety upon ,1 bond tor security for costs: 1. The surety cannot be compelled to pro- duce his title deeds. _>. The exam- ining party has no right to enquire ;is to all the property which the >urety may own. The Mtrety may ^ay, '■ I own a certain property and 1 claim that to be of suthcient v;ilue to (|ualify me to be a surety." ,]. The surety will not be connnitled because he gives unsatisfactory answers, and that he cannot remember the de- scrijition of his lands. This is not a refusal to answer. I\'r .Issiniboiii /ihrtion, IV. ,^(). Sec PkKNCIP.VL ...Ml SlKlCTV. SURVEYS. Sec Boixn.vKV Lines. TAXATION. I. X.VTIKE V.NI) F.\Ti:\T OF I'OWKU IN (JKNKU.M. II. I'.NKMITION. III. .Mom; OK .\S.SE.'^.SMKNT. IV. Distress. V. Recovekv or RKi-iNni.\r, uf T.w r.vin. VI. Sale or I.ano for Non-Pay- ment OF Tax. \'II. REPEMI'TION. 645 TAXATION. 646 \ HI. Title and Rights of Tax Plkchaser. IX. Tax Dkkhs. X. .\(TU)NS. I.NJL NCTKi.N.-^, ETC. XL L)l>I'(lSITIi).\ OF .MuNEVs CoL- LECTEl.. 1. XaTIHE A.VI) KxTE.VT of I'OWEK l.V tiKNEUAL. Exceptional Tax — Resident and Wni-Rcsidcnt Land Owners — i'n- t'ijiial lax — ii.vi'inl^tiiins — L'ltni I'ircs.l — Till- Hud-i Ill's Bay Co. was iiicorporaU'd by Royal Charter, and liad its licad uiiKi.' at Luiulnii. England, hut had in Rupert's Land and tile Xortli-\Vi.'>i Territory many trading posts. One of the condi- tions of the surrender of its rights H) the Crown, upon the forinalion of the Dominion of Canada, cuntained the folldwing words: " Xo excej)- tional ia.\ is to be placed on the Ccmipany's land, trade nr servants. ' This conditio!! was coiitirmed in an Imperial O-cicr-in-Cnuncil. which had the force of an Imperial Act by The British Xortli America Act. s. 14b. By 41 Vic. c. i.^ (.Man.), a tax of one cent per acre Aas impos- ed on all lands of residents of the Province, and .'i tax of five cents per acre on the lands of all non-resi- dents. By the .pth section " non- resident was detined to mean any per.^on or corporation not residing l>ermancntly, or I'ot having his or iluir chief place of business, in the Province. Ih'ld. that the 41 Vic, c 13, was rf.'.'ni ''ires. ( i ) because it trans- gressed the fundamental principle of luxation by taxing unec|ually the h.iids of non-resident and resident owners; (2) because the tax upon the Company's land was an excep- tional tax within the meaning of the above condition of surrender. ,S'(-;/;/'/.- — That, but for the .^oth section, the Company might have been held to have a double domicile •••nd to be a resident within the meaning of the Act ; but— -/('/(/, that it was plainly a imii- re.-ident within the Act by virtue of ihe .^oth section. Scnilassed. even tlmugh owners of improved lands thu> obtained a > light advantage. Held, that the exemption from i;',xati(in of jiublic lands held in trust for the Crown was unoli.iectionable ; but that an exemption of (1.40 acres of the lands of every resident owner was repugnant to tl;e iiriiieiples of l.ixation. Ilnds^in's l^ay Co. v. .-]/- Inrncy-iirucral, T. \\'., 20'). Apportionment Among Munici- palities — Real and I'ersi'nal Es- tate — Discretion.] — The judicial districts, in apportioning among the Municipalities the amounts neces- -■ary to be raised, h.ave ;i discretion .IS to wliether the eipialized assess- metns shall be of the real and per- sonal estate or of the real estate ;iloiie. lia.^tern judicial Pistrict v. T/ie City <t be expressly conferred: it can- not be given by imiilicalioii. School Trnstces of U'innifci; v. The Can- adian Pacific Railway Co.. II, 163. ■Unoccupied Land — Pcwcr of .S"<7h)i7 'rriistecs.\-()u a liill to set .'I'-ide a sale for t.axes — 1 in- mt- WP- 647 TAXATION. 648 Held. I. That \v1kii, at a puijiic ime-tint!;, tin.' ratepayers had dctcr- miiieil til raise $.wo fur the erection of a school house, the trustee- liad no power to increase tlie amount, j. That tliere is no power to asse>s un- occupied or non-resident lands un- der 3() \'ic.. c. 22. Gcmnu-ll v. SincLtir, 1. 85. Crown Lands — Assessment of Lih\itccs' Interest.] — Lands of the Crown held under homestead or pre- emption entry are assessable as against the i)erson so holdini;. Miini- eil^alitv of Se as.sessed and -old for taxes until the issue of the Iiatent, or at least until the Crown had received full payment for the same. Held, also, that by the contract in ((Uestion, B. accpiired no interest or estate in the lands wdiich could be made subject to assessment and tax- ation by the Provincial Legislature, or in any way enforced against the Crown. Whclan v. Ryan. _>o S. C. R. 65, and Cornwallis v. The Cana- dian Paeitic Railxeay Co. 793. con- sidered. Ruddell V. Georgcson. I.X, 4.1. 407. Crown Lands — homestead.] — The i)laintitT put the assessment and collection rolls in evidence. In the assessment rolls, the defendant was assessed as owner: in the collection rolls as "owner or tenant." Held. I, That the assessment rolls were not conclusive as to the de- fendant's liability, but that lands of the Crown held under homestead or pre-emption entry were assessable as .-igainst the jierson so holding. 2. That the mode of describing the de- fendant in the assessment roll, whether as owner or otherwise, was 'mmaterial to his liability. Mitniei- paiitv of South Norfolk' v. IVarreii. VI 1 1", 481. Half-Breed Lands — Liability to Ta.vation Before Patent.] — The chil- dren of half-breed heads of families residing in Manitoba at the time of the transfer of this Province to Canada, to whom lands were allot- ted in pursuance of the statutes in that behalf, have, after the allotment and before patent, a property or in- terest in the lands which it is com- |ietent for the Provincial Legislature to make liable to taxation. 643 64! I TAXATION. 650 t rolls le de- iids of c;ul or able as g- 2. the de- roll. Muniii- illTi'll, ilily to le chil- i'aniilit.s :iine of nee to allot- iites in lotnient or iii- i com- slature Tiioe landh- uatc suade liable lobe a^>e»e(l antl taxed by The Muniei- pal Aets of iSS.^ and 1SS4. and a f.ale of sueli lands in N'ovember. 18S7, fur arrears of taxe.> for the years 1SS4 and 1SS5 (the proeecdinc;^ be ing re^nlar) is \;ilid. altlinnjih the p.Ment was not i^^ned until iSSd, A'(' Mathn-s. Nil. 4,u. Si\- alsii Inkha, \'. II. ICxKMITltiN. Power of Municipality— .SYi'i'i'/ Stiitiiti- I'aliclatiiii^.] — In tlii.> suit the pl;iinliffs xuighl to obtain a ile- claratiiin that the ilefendants were liable to jiay taxes upon eertain lands belonging to iheni, which were made part of the plaintiffs" Munieipahty in April. 1891. The lands in (|ues- tion had formerly belonged to the Municipality of St. Boniface, which, in i88_'. entered into an agreement with the defendants by which the former acf|nired certain property from the latter for the use of the .Munici|)ality, and in consideration thereof agreed that certain other proi)erty belonging to the defend- aius. including the lands in (pies- tion. should be exempt from taxa- tion until the year 1901. The plaintiffs coiUended that this agreement was ultra zircs. becau>e a Municipality created by the Legis- lature has no ])Ower to cxenjpt from taxation except in accordance with the provisions of law. and such ex- emptions as were claimed were not provided for by any statute. //('/(/. that the plaintitTs must f.iil on the following grounds: i. Tin.' agrcciuent providing for the exeiup- tion claimed by tlie defendants was more in the nature of a p'Tchase and sale, the result of which was that the defendants practically p.iid their taxes on the land in (piestion in advance for twenty years by con- veying certain other property to the Municipality. 2. The agreement in (|ueslion had been declared valid and binding upon the Municipality Mi >t. J^umface by ihi. .statute 40 and 47 \'ic., c. 79, and the statute 50 \ ic. c. J?. >. 9. specially provided th.at. in the case nf the transfer from one Municipality to another of i)ro- perty affecteil by any valid by-law, deed or agreement, it shnidd con- t:mie In be subject tluretn. and it did not matter whether tin by law. deed or agreement was valid at the time of its being made, if it had been contirmed by legislatimi befo'c the passing of the last mentioned statute. Spriimficld v. St. H^niifacc. X. 615. Exemption By-Law — " Muni- (■//'((/" Td.vt-s Pi> Xot Include School /(;.rt'.j. I — The City of Winnipeg having levied school taxes upon de- fendants' property for the years i8<)0-i894, the defendants resisteil an :;clion at law for the .amount, relying oil the terms of a by-law of the City passed in 1881. liy which it w;is eii- .acted that all iiroperty of the defetid- ;nils then or thereafter ti) be owned by them for railutiy purposes wilhin the City should be exempt forever from all .Municipal taxes, ratts, lev- ies .and assessments of every nature and kind. Held, that school taxes are not in- cluded in the term " Municipal tax- es," and that under secti 'ii t,Vs i>f The Assessment Act. R. S. M.. c. lot. ;is amended by 57 \'ic.. c. 21. <. .^ the iilaintiffs had a riglu to sue fur them, being merely constituted by the Legislature as the agents through whom the school cnrpora- tion levies the amounts they reiptire for education luirposes. The City of i''iiiiiil'c<; V. The Cunadian Pacific h'aiheay Co.. XII, 581. .\ppeal iiending in Supreme Court of Canada. III. Mmin 01^ .-XssF.ssMEXT. Description of Person.] — The moile of describing a person in the assessment roll, whether as owner nr otherwise, is immaterial to his liability. South Xorfolk v. JVarrcit. NTH. 481. 661 TAXATION. (!6:i Irregularities — / indiKJ.J— in a bill to aviiid a sale for taxis, plaiii- titt alicj^i-il a> objcctidiis to tlif sale: Thai the lands were never asse»ed accnrding to law. That the assess- ment rolls Were never reinrned ac- cording to law, or with the cirtili- c.'ite or oath required hy law. That no taxes were levied hy the Council for either i otYered for com- petition in two parcels of a (piarter- section eacli. Th.it the lands were tiot advertis(d in the manner and for the length of time recpiired by law. On ademurrer for want of eipiity — Held, tliat the allegation-, contain- C<1 ill the hill were sutVicient in fonn. and, if i)roved, alleged grounds for setting .aside the sale. /v\-<'(/ v. Smith. I. 341. \, /,'v-/.„.v — — Land w.is taxes of i.'-i.'^o evying a rate Irregularities — Statutes Cditfiniiiiii^. | sold in iSS_> for the and i.SSi. \o li\-l;iw was passed in either year after the revision of the assessment roll. The statute tiien in force anthorized a sale when two years' arrears were due. Upon the deed in inirsuance of such s.ale being attacked — Held. I. (Overruling Taylor, C.J.), that the sale ami deed were invalid. 2. That the Act 47 \'ic., c. 11, s. ,^40, providing thai " all lands heretofore sold for scliool. Municipal ancl other taxes, for which deeds have been given to purchasers, shall become absolutely vested in such purchasers unless the validity thereof has been rpiestioncd before the 1st day of J;inuary, 1S85." and the Act 41) Vic. c. 5_». s. 6'^. as amended by 50 Vic, c 10. s. 52, only applied where there were two years' arrears Icgallv due. Per Bain, j.— The Act 51 Vic, c loi. s. 58, which provides that " all assessments heretofore made .and rales heretofore struck by the Muni- cipalities are iiereby contirmed and declared valid and binding upon all liiisDii, and corporations alfecicil thereby," only extends to remedying and supplying irregul.irities and de- licts in ;issessmems juid r.ates th.it were ;ictnally made and struck m substantial conformity with the di- rections of tile statutes. I'er Killain, J. — 'i'liat .\ct having bien i)assed after the execution of the { evidence was given for the inirpose of showing that the north and south boundaries of the proper- ty ill (|ue>tion, as described, were entirely ditTerent from the boundar- ies as laid out on the ground and occupied by the buildings; but the Judge found, as a fact, tliat the only proved discrc()ancy in the boundar- ies was on the eastern side of the property, where a slight error, not exceeding three feet, had been made, which, however, was unimportant otherwise. Held. that, as the owners had nev- er objected to the assessuu iits, and a conveyance of the land by the plaintiff by the description in the as- sessment rolls would have been ef- fectual to transfer all r)f her land in (|uestion excepting a little on the eastern side, the assessment was equally effectu.il to charge all the land which the Court could see was cle.'irly included in the (iescriplion. piid an injunction should not be gr.-iiiied, but the plaintitY should be left to anv remedy slii- mght h;ive at law. Sclnillr ■///otc; _'_' I . IV. DiSTRF.S.S. Overcharge _ Justification — Pli'tuiiiii; — Ih'iiiand.] — The defenf said lands before the sale was held. Shortly before the time for redemption expired, the Railway Comiiany paid '.he taxes lo the Mun- icipality under protest to avoid tax deeds being issued, and afterwards brought an action to recover the iiHiney. Ifeld. I. ( Kill.uu, J., dissenting), thru the plaintilT was entitled to re- cover. _'. (Killam. J.. du''itan'e). that the li'aintiff had an iiiK res' i;i the land." (jrior to p.'iteni issuing. ,^ (Killam. J., di-senting). that under the terms of the contract the lands were exempt from taxatioii from the date of the contract until tweiuy years after the issue of the patent, unless sooner sold or occu- pied. 4. (Killam, J., dissenting), th:it the money was not |iaid voluntarily, and might be recovered back. Cana- i'^^ '■A. \'-- m^ If "' ■ 669 TAXATION. 6S6 ilidii Pacific h'ailicay Co. v. Burnett, 5 M. R. .105, followed aiu! aiiprovt'rl. /'cr Killam, J. — i. That iliu ex- emption frcjiii taxation was limited to a period of twenty years, rumiing from the Crown grant, and did nut ajjply lo the iiiterv;d between the date of contr.'u't and the issue of the jial- tnt. 2. That if the plaintiff h;id an interest in the land prior to patcm, tliat iincrest was taxable, and if not. the payment was voUnuary ; in either event the money conld not be recov- ered back. CaiHidiaii Pacific Rail- way Co. V. The Rural Muiticifality of Cnruz^-atlis, VH. i. Affirmed, XIX S. C. R. 701. VI. S.M.r. or Land for Non-Pay- ment OF Tax. Advertisement.] — The fact that the Gazette was not published in three consecutive weeks prior to the .sale was no snfiic: nt excuse for non-com|)liance with the statute. (jcniiinil V. Sinclair, I. 85. Advertisement.] — Where the -.d- vcrtisement publisiied h;id no proper descrijjtion of the lands mentioned in it, and the reason why the taxes had not been collected was not stated. Held, a fatal objection. Where a sale took place on 3rd March, and an advertisement appeared on i5tli, 22nd and jSth I-'ebruary. it was not advertised " at least three weeks in succession," as required by the stat- ute. Farmers' and Traders' Loan Co. V. ConL'lin. I, 181. Advertisement _ Time.] — Lands were advertised for sale for taxes in two numbers of the Gazette, Init those numbers, although dated upon certain days, did not in fact issue until later dales — dates too late to comply with the statute. L^pon a motion for an injunction to stay the sale — Held, (i) that the statute was not sufficieinly complied with, but (2) that insufficient advertising would not. under the present statutes, ren- der the sale void, and that therefore no injunction to stay it should In- granted. Wood V. Birtle. W , 415. Dividing Parcels.] _ //,■/,/. ii,;u where land was assessed as one par- cel, a treasurer, when selling, has ikj right to offer it in two or more par- cels. Reed v. Smith, I, 341. Confirmation of Sale — Construc- tion of Statute — "Sale."] — A statute provided that no " sale " of kind for taxes should be impeached because of the addition of interest tcj the tax- es. ,\ bill was filed to prevent the execution of a tax tleed 'i' pursuance of a sale on the ground mat such an addition h;ul been made. //(■/(/. that the statute was not con- fined in its operation to a sale coin- ])leled by conveyance, but made valid the sale itself. Schultc v. The City of U'innipCi^. \T. 269. Purchase by Wife of Mort- gagor — Purchasers for 1'alue With- out Xotiee — A'u Lien for Money /'aid.] — The plaintiff's claim wa.-> for foreclosure f)f a mortgage made by the defendant. O. G. Rutlcdge. and possession of the land. Hi< wife, who had before the making of the mortgage, purchased the land at ;i sale by the .Munici])ality for arrear- of taxes, and one Lawlor. who. ha\ - ing i)urchased the tax sale certiti- c.'Ue from one McCubbin, to whom it had been assigned liy Mrs. Rut- ledge, had afterwards obtained a dL'cd from the Municipality for the land, were made parties defendant in the action. The statement of claim made a number of allegations with a view to showing that the pur- chase at the tax sale was invalid as against the plaintiiT generally, and claimed that the tax deed to Lawlor was void, but did not form- ally ask to have it set aside, though it concluded with the general prayer for further ielief. Held. 1. When the tax sale took place, tne wife of the mortgagor was as free as any stranger t(j acquire for her own benefit any title to or in- i^' t 60 tc of 111 it th 01 lu es6 65 TAXATION. 65S '.Licsi ill ilic hiiul paraniouni u> that (jf tilt" iimrtgage'.', either l)y using money of licr own. if slie had any, or i)y inducing a tliird iiarty to advance it on her separate account, provided the transaction was not merely col- orable and really carried out on be- half of (he mortgagor. 2. There was not sufiicienl evid- ence of any trust as between the de- fendant I.awlor and the Rutledges. and for all that appeared in the evi- dence there was in actual sale of the tax sale certiticate and the rights conferred by it to Lawlor for valu- able consideration, and the onus was r.ot thrown upon him to prove that Mrs. Rutledge acted on her own ac- count and not as agent for her hus- band in making the tax purchase. 3. Although .Mrs. Rutledge. by her conduct after she had purchased, in conceding the fact from the mort- gagee at a time when in the opinion of the Court she ought to have dis- closed it. had disentitled herself to proceed with her purchase and ac- quire a valid title as against the mortgagee, yet it did not follow that a i)erson purchasing her apparent rights under the tax sale certificate for value, and without notice or knowledge of her si)ccial incajiacity, might not have acquired a title un- der a tax deed wliich would have cut out the plaintiff's mortgage. 4. The case did not come within section 186 of The .Assessment Act, and Lawlor was not entitled to any lien on the land for the taxes paid as against the plaintiffs mortgage. Judgment for foreclosure in the usual form with a declaration that any title to the lands in question which Lawlor took or held under the tax sale deed was held by him subject to the plaintiff's mortgage. Day V. Kutli'df^c, XIL 290. Affirmed. XXIX S. C.R. 441 : ^"/'. iioin. La'd'lor v. Day. Purchase by Municipality — Assif;>tnir)it of Certificate.] — The lands in question w'cre sold for ar- rears of taxes by the Municipality of St. Laurent. At the tax sale the Municipality became the purchaser under the provisions of section b^() of The Municipal .Vet, iS8(). It sub- sequently assigned the tax certificate to X., to whom a tax deed was i>- sued. N. conveyed to A., who ai>- I'lied for a certificate of title uiuKr The Real I'roperty .vet. iSSij, and contended that he was entitled to re- ceive from the district registrar (un- der section 57 of The Real Property Act) notices to be served on all i)ir- sons who. except for the tax deed, would be interested in said lands. On a reference by the district r.,- gistrar — Held, that .v. was entitled 10 re- ceive said notices for services. /\<' .Ulan. \TI. j8. Irregularities — Warrant.] — That the absence of ;i warraiU fmm a justice of the peace to the secre- tary-treasurer, and of a return by thi.' latter to the trusties, are each fat.il to the \alidity of the sale. Geniineil V. Sinclair. I, 85. Irregularities — Orercliarf^e — t'urnisliin<; Lists to Clerks — Method of Sale — Sale for Xoniiiial Price — Xaine of Corporation — Adoption of Seal — Onus of Proz'infi, Invalidity- Bill Attacking Void Transaction. \ — Lands were by virtue of the l(3cal statutes liable in 1885 to be sold for taxes. Furnishing to the Municipal clerks lists of lands in arrear under section 272 of the Act of 1S83. and section 280 of the Act of 18S4, is not a condition |irecedent to the sale of land for taxes. Per Dubuc, J. — Any such objection would be cured by the .\ct of 18S6. s. 67^, as amended bv the Act of 1887. "s. 52. Under the Act of 1884. the treasurer, in selling lots not di- vided into legal sub-divisions, should determine wliether, having regard to the interests of both owner and Municipality, he will olYcr the whole I)arcel of land or some definite part. Having so determined, he should sell for the highest price obtainable, lie is not, however, " bonnd to en- fiuire into or form any opinion on I he value of the land." .'\nd not having done so. forms no reason for avoiding the sale. Land worth $700 tr 651* TAXATION. if' ■ ''fl was sold for taxes for tliu Mim ui $1". The evi'leiice sliowed. liow- cviT, llial tliere was great ilit'tkulty in selling lauls at all. Held, that these facts tliil iidt show that the sale was not ci>ii ilUjjaily increas- ed hy the additiiiii of inlercNi. Ui'hi, not to invalidate the sale. (.S'(-i' I'luit \. Hldiiilnird. I\', 4^)0.) I'll' Killani, J. — i. In a suit at- tacking a tax sale deed the onus of proving iis invalidity is upon the plaintiff. J. A hill to set aside a tax sale deed .illetted ihat the otTicial who conducted the >ale had no anlhority to do so, and thai the deed was not executed liy the ollicers or under the sial of the prii|)cv Municipal (jirpor- aiion, (JiKcrc — Whether it thus appearing that the deed was wholly void, a hill wiiuld lie to have it >o declared? The Mnnici|)ality of Kildonau was not dissolved hv The .Municipal .\ct. iSSM.. .Uc/v'ci- V. Corhclt. IV. 4(10. Irregularities Warrant.] — \ tax s.ale was held had hecause the warrant given hy the reeve, author- izing the tre.isnrer to hold the tax sale, was dated iSth .\ugusi. iSiji. and professed to he given under The Mimicipal .\ct f)f i8.%. which had been npcaled hy The .Municipal .\ct of i8go, wdiich came into force he- fore the date of the warrant, and such warrant conferred no authority upon the treasurer to sell the land in question. Xaiiloii v. / 'illciit'inw .\ . Irregularities — Xo Rcf^ort by Court of N,-:'ision — .liiihigitoiis By- Lati' — Salr of T:k'o Parcrls May be Good for Our. Althouvji Had for the Other I'areel.] — This was a suit in erpiity to have a tax sale deed of the west half of .section 22-7-S W. de- clared void and set aside as a cloud on plaintilT's title. The northwest quarter was only granted hv the Crown on JQth October. iSSS. hut it and the other ipiarter were sold to- gether in iSqo for arrears of taxes for 1S.S8 ami i.'^Sq. Held, that the sale of the north- west ipiarter was void, becau.-.c tiie land was not subject to be taxed in the year iSX,S, but that, followiij Sehitltc V. .Uhneay. X. .M.K. jji. the tax sale in (ptestion might have been good as to the southwest ipiarier; but for the other objecticjus— Jleld, however, that the sale was void on the following groun(is: i. That there was no record in the pro- ceedings of the .Municipal Council of any report to the Council by the Court of Revision as re(piired by section s.Kf) of The .Municipal .Act I lien in force. The minutes showed that the Council iiad resolved itself into a Court of Revision, that the Court of Revision had dealt with the apiieals bio\ighi before it, ami th.it a notion h;id bien carried "thai llic Court of Revision do now adjourn." followed immediately hy a nioii^m " that the Council now l,'dak' i)t laii(l.> fur taxes due to tile MiiiiiL-ipaliiy ut Winchester. Section 154 of The Assessment Act provides that a sale for arrears of taxes shall take place at such jjlacc as the Council shall hy resolution or I liy-law ai)piiiiit. or in the ahsence of j such aiipointniint, at >uch iiul)lic ' lilace in the a>si/e inwn or city of j the judicial districi wherein the | Mtniicipaliiy i> >ituatcd as may he 1 cliosin liy the treasurer. \ The Councd did n^t app'iinl any pl.icc for the holditifr nf tjie >ale. and the treasurer appointed the sale to 1 take place at a >mall hall in the j Mmiicipaliiy. anale hefjan ;it 11 o'clock in the morn- iiiji. was continui'd tnr :il)out an hour, and then llu' .iiictioiicer. offi- cials ;md audience all went ;iway to dinner ;iiid were ahsent for ahout an hour. durin;j; which time no one was left in charge of the hall, which was locked up. nor was any notice put up at the dooi with refirmce to the sale, and the land in (jUestion was sold after the s.de w.is resumed in the afurnoiii). .'iml for just the amount ni the t;ixes. //(•/(/. that under these circum- st.'inces it could not he considered that the s;ile had heen conducted in a fair and open m.amuT. and that under stciiou lOO of The .Assess- ment .Act it should he set a attend ;ind hid. //('/(/, alsii. that the ilTect of sec- lidiis ii)0 and Hjr of the .Net, as .'imendecl liy 3; \'ic.. c. J(i, s--.. (, .-nid 7, is to remedy lutely voi(l prociedings, ;i-i in this case. TctrauU v. I'nu^hon, XII, 456. \'\\. Rr.liF.Ml'TION'. Of Whole by Owner of Part — Lieu for Iscdoiij'tiou .l/(i;i('y. I — F. and .S. iointly owned certain laiul. This land they snhseciuently suh- dnided, e;uh taking one-half, and the proper c invevanc<.s were made, 'ihe !;md was afterwards sold for taxes in one p.arcel. F. redeeniod the whole. Ilrld. th.at V. was entitled to a lien on ."^.'s land for the proportion of the ledimption money chargeahle to that land. Payne v. Goodyear. 26 I'. C, R. 44S. discussed and distinguished. Where land has heen sold for tax- es in 'iiie parcel, ditTercnt fiarts of which were owned hy separate own- ers, an owner may not redeem his part witlimit redeeming the whole w n 1 603 TAXATION. mi unlc>s tlic liiiid was c.iini)fiM-d dt irorc llum nuv lot or p.'irccl accord- ing to a rigistored plan as provided for 1)V section 0(j^( of The Municipal Act. '1880. Tiic provision in ^cctinn 0,?8. for tlic paynuMit of the pruporiionatc amount of laxcs cliarncalilc ui)on any snli-divi-ioii only aiipliis tn tlu' pay- ment of taxes liefiin- sale. I'tnui'iti V. .V,7//r//r, \'I1. 45S. \'lli, TiTi.K AMI KuiiiTs ()i- Tax I'llKIIASF.K. Action for Not Executing Deed. I — A statute autlmri/inp; the sale of land for taxes. i)r(i\ide of the lam! at tiie time of the tax s.'ile. \o evidence was given to sh'Av th.at the tax s.'ile deed had been luadi- and executed in dupliciie as requir- ed by section 1S87 of The .\sscss- iiunt .Act. R. S. ^l,, c. 101. Held, that this was lui objection to the v.'ilidity of tiie sale. The old seal of tiie .Municipality had i)eeii used for the deed, wiiil-t the name of the .Municipality ii.i.l been ciianged by the siatuiory addi tioii of tin- Word " rur.d." 'flic .Municipality had, Imwever, ;iiloptr.l .-iiid u>ed the old seal. Held, following McKac v. Corbcli. U -M. R. 426, that tliis objection was not fatal to tiie deed. Santon v. / 'iUcucux'i'. X, 213, Deed as Evidence of Proceed- ings — Onus, (if />,'(»/■. | — In an i- sue under Tie i'le.al Property .Act a- to the ownership of certain lands, tlu' plaintiff claimed title under a tax sale dee'd from tiie mayor and treas- urer of the City of Winnipeg. Held, that the onus was on the plaintitT to prove tlie assessment, tlic imposition of the rate, and tiie tak ing of every step which it was hy statute necessary to take, for impo^ ing the tax and making it a iiindiiii; ciiarge on the land. Doc Ijrin. Bell V. RcaiDHorc. ,1, O. S. 243 : Mc- Kay V. Cryslcr. 3 S. C. R. 436: and O'Brien v. Cfl};swell. 17 S. C. R. 4.^0. considered and commented on. .11- loway V. Canifhell. \'II, 506. Ev^.dential Value.] — Under our .Acts, a tax sale deed is conclusive evidence of the validity of the sale, and of all the prior proceedings in and ai>out the sale, but it is not even prima facie evidence of tiie assess- ment or of tiic imposition of the rate. .Irchibald v. Youillc, VII, 473. And see Schultc v. Allozvay, X, 221. 665 TAXATION. 606 X. AcTif)N.s, Injunctions, Ivrc. Injunction — To Stay Sale — J/'/'i'i// til Ci'itrt of Revision.] — An injunction may he grantt-d tu rotraiii a tax sale. The limits of siidi jiir- is(hcti(in (Uscusscd. It i> tioi ncccs- >ary tliat exc'mi)ti'in frmn taxatinn should ho lai-L'il ln-fure the Court of Revision, and tiie party wronj^ly as- "e>sfcl is 111 it e>to|ii)ed by nut tai\inj; that step. Canadian I'acific Rathvay Calc, the deed was flaled on I5tli (X'toher, iSSi, and a suit was begun on 14th October, i88_', tlie suit w;is httjun " witliin one year from tlie execution of the deed," as pruvided by the statute. Farmers' and Trad- ers' Loan Co. v. Conklin, I, 181. Costs.] — Wlure a purchaser at a lax sale is not a p.irty to any irregu- larity or impropriety, he will not be ordered to pay the costs of a pro eonfi'ssii suit to set it aside, unless he has been alYorderl an opportunity of inves'igating the matter, ,ind electing to abandon any claim with- out suit. lUanchard v. Scanlan. Ill, Action by Owner Against Mun- icipality for Compensation — .Ir- ''itration. — Where the owner of land which has been sold for arrears of taxes, when ik^ taxes were due thereon, caimot recover it back by reason of its having been brought under the operation of The Real Property Act, his right of ac- tion against the Municipality lUi- der section 192 of The .\ssess- ment Act, R. S. M., c. 101. for the loss or damage sustained by him on account of such sale, is not com- plete until the amount of the indem- nity to be paid is first settled in the manner pointed out by that section, nairely, either by agreement or ar- bitration ; and where the plaintiff, in his declaration claiming damages under that section for the wrongful sale of his lands by the defendant Municipality for alleged arrears of taxes, showed that the lands had been brought under The Real Pro- perty .\ct by the tax purch.iser, but did not show any agreeiiieiil with deliudaiits as to the amount of in- lUnmity, nor that any arbitration had been held io ascertain such amniint, a demurrer was allowed, Clfnii'H.i \. St. .Indri'w's, .\1, 111. Offer to Refund Purchase Money _ R.-mcdy at /.citi'. | — The pi;iintitT'> bill alleged that the de- fendant, the City of Winnipeg, b.ul -old the plaiiitit'f> land to the de- I'liidaiit .\llo\\;ty f(ir arrears of tax- (■-, but that the assessments bad been ilefective ;ind did not properly iir Mil'tk-iently describe the plaintiff's land, and that the description in the assessment notices included other property not claimed by the plain- tiff and did not include all of her projierty sold; also that, in con>e- (|i;ence, there were no taxes legally in arrear and uniiaid at the time of the -ale, ;ind that -uch s.ile was a wholly \nid i)rooeeding; and an in- junction was claimed to [)reveiit the City of Winnipeg from carrying out ilie .-ale by giving a conveyance of the land to the purchaser. Held, that it was not neccessary that the bill -hould contain an offer to p;iy the purchaser the amount paid by him at the sale, and sulisequently for taxes and otherwise, notwith- standing s. 1S6 of The -Assessment .\ct. R. S. M.. c. loi, because that section does not apply where there arc no legal arrears of ta.xes, as the I'ill in this case alleged. That, althiiugh the plaintitT might have ;i remedy at law by redeeming the land and then suing the City to recover back the money, yet such a remedy would not be adecpiate under the circumstances, and the plaintiff was entitled to have the merit> of the .ipplication for an injunction consid- ered. The -tatement in Plack:ecll on Tax Titles, s-s. 518 and 310: "When part of the land sold is liable to sale and the residue is not. the sale is void /)/ toto " — Held, not to apply to a case like the present. Haydcn v. Foster. \% Pick. 40-J: and }foulton v. Blaisdell, www m. G67 J4 .Mc. 283, dislingiiisliod. \. .Illoz^'iiy, X. 221. TAXATION. 668 Schult:: Void Proceedings _ Injuiictinii to Rcslniiii Issue cj Tax Deed — I'riur . I triplication to Municipalities.] — A Muiiiciijality assiiiiied lo sell certain lands fc^r taxes, altiiougli no lax had ever been assessed and lev- ied upon tliein. and n(Mie was in ar- rear. The lantls were also exenijit hy statute. Un a hill liled by the owner to set aside the sale, and for an injunction restraining the iSsue of a lax deed — Held, I. That as tiie ])roccedings were void upon their face, the Court would not grant an injunction, or make a decree declaring the sale \oid. 2. At ;ill events, before he may resort to the extraordinary rem- edy of injunction, tlie owner must make an a|)plicaiion to the iJunici- pal Council to rescind the sale, un- der tile provisions of S2 \''ic.. c. 27. s. .39 (M. 1888). Archibald v. You- 7'ille. VII. 473. .S\\' also Scliultc V. Allozeay, X. 221. XI. Di.si'osnioN or .Money Col- LECTEIJ. Surplus Purchase Moneys — Application by Mortjiai:,ec for.] — Lanil was sold for taxes ami real- ized more than the amount due upon it. I'pon an application by a mort- .qagee of the land for payment to him of the overplus — //(•/(/. that notice of the apiilica- tion must be given to the mortgagor. AV Anon. Ill, 687. Surplus Purchase Moneys — Cos's — Purcliase by Mortgagee — /\'/,t,'/;/ /() Surl^lus.] — Where a mort- g.'igee purchases the mortgaged lands at a tax sale and receives a tax deed therefor, he is entitled to the suri)lus moneys realized by the Municipality from such sale in excess of the taxes and costs. Re Grant, VII. 468. Disu-ict registrars or County Court Judges have jurisdiction under slc- iion 158 of The Assessment Act to n;ake orders for payment over to the owners by -Mumcipalities of the overplus resulting from tax sales, only in cases where the land has been :old under the i)rovisions of The As- sessment Act. The overi)lus from prior tax sales nuist be dealt with under the pro- visions c)f sections 675 and b^U of Tile Munieii)al .Xcl, 1886. Re John Henderson, \II, 481. Purchase Moneys — - //( the Hands of tiie Surplus Jurisdiction Purchase of County Moneys Court.] Surplus Rdnaining t rejsurer for .Si.v ]'ears — from 11 '/nit J'inie the Six I'ears Begin to A';/;;.]— Wiiere lands iiave been sold for taxes under Tiie Assessment Act. and the price amounts to more uian the taxes due, and the pur- i.lia;-ei at the end of two years from the day of sale pays the surplus imrciiase money to the treasurer of the Municipality, tiie same caiinoi be claimed by the Municipality as for- feited until after tiie lapse of six years from the receipt thereof by liie treasurer, although the language of section 193 of tiie Act is ambigu- ous and speaks of the money reniain- ii.g in tlie iiaiids of tlie treasurer for MX years from the day of sale of the l.md of whicli it formed part of the purciiase monev. Re Care\ and Lot 65, /■/(•., IX. 483. Non-Payment of Balance of Purchase Money.]_Under' section lOS of The Assessment Act, R.S.M., c. 101, a tax purchaser iiidding more -'or tlie Land than the amount due for taxes and costs forfeits all claim to the land purchased and to tiie money |)aid at the time of sale, unless he pays tiie iialance of iiis purcliase money witliin two months after the expiration of the time allowed the owner for redemption; and it niake-~ no dilTerence if in the meantime the land is t;d■ the Go\crmnent. He Jhiiiii and The E.rfru[^i-iatioi: Act. XII. 78. TENANCY IN TAIL. Barring Entail — Rnrnlmcnt of Deed.] — A conveyance barring an entail does not require enrolment, re- gistration being sufficieiU. Reid v. ii'' kite ford. I, 19. TENANT FOE LIFE. .S\ (• Lif;: F.statks. THEFT. See Criminal Lwv, IX (i). THREATS. See Criminal Lwv, IX (/). TIME. Computation Of— ".^2/ Least Four jktys Before.''] — Records which re- quire to be entered " at least four days licfore " the trial must be en- tered not later than Thursday for the foUowiiiii Tuesday. Colder v. Dan- ccy, II. \7,S2. Last Day Sunday.] — G. O. 97 provides tiiat "Appe;i's from the or- der or iudcment of the Referee in Chambers shall be made by sum- mons, such summons to lie taken • lut within four days after the order '-: judgment has been pronounced," etc. Ifeld. ihai where the last day hap- pens 10 fall on a Sunday, the time should be reckoned exclrsively of that day. Baiih of British Xurth .'.iiteriea \. Munro. IX, 151. Last Day Sunday.] — Where the Ic'.st day for serving a notice of ap- |)eal under section 79 of The Assess- ment .-Xet. R. S. M., c. 101. falls on a ."^unday. it nuist be served imt later iliau the Saturday i)receding or it will lie too late. Clause {s) of s. !S I i The IiUerpretation Act, R. S. .M.. c. 78. which reads: "When anything ■required to be done by any Act of the Legislature of Manitoba falls on ;i holiday, it shall be done on the r.ext day not a holiday," does not ap- ply in such a case. AV Seott and Cily of Brandon. X, 494. .Vr.' H'ood v. Birtle. IV. 415. snfra Taxation, \'I. and Farmers' and Traders' Loan Co. v. Conh- lin. I. 181, sii'-ith and some substantial injury done to the partv complaining. Doe d. Bather v. Bra\ne. (18^4) 5 C. B. fi;;: Geaeh v. Im^all, (1868) 14 M. & W. 0?. followed. 3. That in the present case the plaintiff could suffer nothing from ibe order in which the jury were ad- 673 TRUSTS. 674 dressed, as his evidence was weak and the defendants were entitled to the verdict, and that a new trial should not be granted. Quintal v. Cliahucrs, XII, 231. TRUSTEES. Sec Parties, II ; Trusts. TRUSTEE RELIEF ACT. Fund in Court— Coj^j of Claim- ants.] — Where there are rival claim- ants to a fund in Court, and each is held entitled to a portion of the money, each should bear his own costs except in so far as they have been increased by one claiming more than he was entitled to ; and then any increased costs occasioned by such unfounded claim should be paid by him to the other party. It is no objection to the petition- ers' claim for costs that the Judge on an c.v parte application ordered a reference to the Master, instead of disposing of the matter himself. In re Hamilton Trusts, X, 588. TRUSTS. I. Creation. II. Investment and Disposal of Trust PRorEKTY. III. Compensation of Trustee. IV. Actions. I. Creation. Intention.] — Ordinarily a cov- (tiai'.t by A. with B. to pay money to C. creates no trust in favor of C. But if an intention to the contrary appears, there may be an enforceable trust. The point considered with reference to the particular circum- stances of the case. CHllies v. Com- mercial Bank of Manitoba, X, 460. II. Investment and Disposal of Trust Property. Methods of Investment.] — Bank ^inck is not a security autlmrized for investment by the Court. Re Logan Trust, III, 49. III. C()mpens.\tion of Trustee. Commission on Amount Hand- led. I — Wlure there has been noth- ing s;)ecial in the management or winding-up of an estate, a percentage on tile gross amount come to the hands of the executors or trustees will generally b'^ allowed to them as remuneration. In this case the value of the estate realized by the executors was $3Q,- .^4^^, of whicli they had properly paitl out and dishursetl $21,814, leaving $17,534 still in their hands whicli cor.ld not all be paid out before nine years. On the api)lication of the ex- ecutors for interim remuneration, the Court allowed them 4 per cent, on the $21,814 -TiJ - P^-'f cent, on the $I7..;,^4 not yet paid out, in addition to the sum cliarged for the services of a boid and set aside. Wright V. Jcivcll, IX, 607. II. Construction. Legacy of Money Out of Stock — Conversion of Investment — Bank Stock as an Investment — Interest.] — In a will there was the following bequest : " I bequeath to my dear fifiO 681 WILLS. 682 j^ wife Sarah the interest on £i,ooo, out of the moneys invested hy mc in the Montreal Bank in Canada, to be annually paid to her by my execu- tors hereinafter mentioned, and for her sole use and benefit during her life, and at her daath the above £i,ooo to be equally divided among all my children surviving, share and share alike." At his death the testator was possessed of a considerable number of shares in the capital stock of the Bank, the dividends upon which were paid half-ycarb-. After the death, for the purpose of carry- ing mto effect the bequest, the exe- cutors transferred to one of their nuniber twenty-two shares of the stock, and he executed a declaration of trust, by which he declared that he held the same in trust for the widow and her children, upon the terms that he was annually to pay to the widow, in satisfaction of the in- terest appointed to be annually paid to her. ail such dividends or interest on the twenty-two shares as should accrue to him, and in the even of the death of the widow he was to surren- der the shares for the purpose for which the sum of £i,ooo was be- queath. Afterwards the capital stock of the Rank was increased, and four shares of the new issue were in effect added by the process tO' the tv enty-two old shares. Held, I. The bequest was pecuni- ary and not specific. The general nle is that a legacy of stock out of slock is specific, but of money out of sttck, pecuniary. 2. The assign- n;ci-.l of stock and declaration of tru't did not amount to a conversion and iiiv'cst.;ient, or an appropriation an ocinting tu [Payment. Nothing short of a conversion of the stock and the investment of suflficient of the proceeds in an authorized secur- ity to answer the particular legacy could he such an appropriation. Bank stock is not a security authorized by the Court. ,^. The twenty-two shares and the four shares always remain- ed part of the estate. 4. The widow- was entitled to interest at 6 per cent, from the expiration of one year after the testator's death. Scmblc — I. Any loss accruing to the estate through the non-conversion of the stock within a year from the death would fall upon the general estate. 2. An express direction by a testator for the conversion and in- vestment of his property, from time to time, as the trustees may think fit, will not prevent the operation of the general rule that where personal pn.perty is given in a scric:. of limi- tations it shall be invested iiv such securities as are approved by a Court of Equity, for the benefit of parties interested in remainder, after the death of the tenant, ror life. If no such conversion b:is actually taken place, the rule is that between lega- tees for life and in remainder, a con- version will be deemed to have taken place at tlie expiration of one year from the death. Re Logan Trust, III, 49 ; IV, 19. Legacies Charged on Property — .'Ipplication of Rents upon Mort- gage — Improvements under Mis- take of Title.] — A testator appoint- ed executors " directing my said ex- ecutors to pay all my just debts and funeral expenses and the legacies hereinafter givc^i out of my estate." In a subsequent part of the will it was provided that " after paying off my said debts and funeral expenses, I give and bequeath to my daughter M. the sum of $5,000, to he paid to her at the age of twenty-one years by my executors, and I give to my wife all my real estate whatsoever and wheresoever, and all my chattels and household furniture with the ex- ception of the above-named legacy," "And also my executors to educate and provide all necessaries for said child (M.) from my estate until she is twenty-one years of age, over and above the $5,000 mentioned." The plaintiffs had a mortgage up- on part of the real estate of the tes- tator. After his death they loaned the widow; a further sum for the pur- I'osc of erecting buildings upon it. After default they took possession under the first mortgage and appro- priated the rents to its payment. Up- on a bill to foreclose the second mortgage-— 688 WILLS. If" //(■/(/, [. Tliat the legacy and pro- \isioii for niainlonaiicc and (.'ducation wfre a cliargc npon tlie real estate. J. 'j'liat tlie i)lainlirfs were not en- tilled to priority over these eharges either upon the ground of mistake of title or because the Court would have sanetioned the loan on behalf of the infant if api)lied to at the time. ,v The plaintiff could not be permitted to change the application of tlie rents to tiie reduction of the second mortgage. Tlic Coiifcdcra- tion Life .Issdcialion v. Manrc, VI, 102. Gift to Trustee — Whether Ab- solute or ill Trust. \ — A testator de- \ised and becpieathed all his i)roper- ly to two executors and trustees " in tru.st " to pay debts and certain legacies, and invest the residue and pay the net annual income to his widow during her life. He- then gave certain legacies, and disposed of the residue as follows: "Subject to the foregoing trusts in favor of my said wife and the payment of my fimeral and testamentary expenses, debts and legacies and directions as aforesaid. 1 give all my lands, chat- tels, real and personal estate unto my trustees, to i)e aiiplied and dis- posed of as to them, in their uncon- trollable and absolute discretion, shall seem fit." flehi, that under the above clause the trustees had no absolute dispos- ing power over the residuary estate, Init held it in trust. Re Ma^iiius Ih-ou'ii. Vlil, .VJi. Annuity — Corf^us or Income — Allowanee for Past Mainteiiaiicc of fiifaiits — l'o7itator is that money should he laised for some purpose, and the sale is only a means to that end. a iiiorlpjaRe may he justified as a con- ditional sale. .Unclirav v. Ilii^i^ins, \'III, _>9. Sec WINDING-UP. CoKl'OK.ATlll.N'S. IX; Jt;i)G.Mi:NT, XI. WINNIPEG, CITY OF. Separation from County.] — The charter of the City of Winnipeg (47 Vic, c. 78). separates the City from the County of Selkirk, hut in a (|uali- tied maimer only, and it may he li- ahle to the Eastern Judicial District I'oard for dehts and liahilitics due hy the City at the date of the Act. Eastern Judicial Pistrict Hoard v. City uf IVinnipc^, III, 5,^7, WITNESSES. Representation by Counsel.] .\ witne-s c-ninot 'ov reiiresentcd hy counsel, nor can counsel eiiuriired in the case he heard in support of any uhjeciion the witness may have to giving evidence. !■ lection. IV. 228. 686 Re Assinibioa Privilege _ Self Crimination.] — I he owner of a judgment alleged to have heen frauduleiUly ohtained may refuse to answer rpiestions respect- mg u. Bnnen v. lloofcr, III, 86. Privilege — Communication Bc- /leeeii Solicitor and Client. \ — Cer- lam (|uestions put to the defendant as to conummicalions hetween liim- selt aiul his attorneys with a view to showing his responsihility for their action in issuing and enforcing a fi. fa. good.s — //c/,/, to he privileged. Dcdcrick V. .Ldidozeii. l\\ 174. Conduct Money.) _ Uni ol I he Oueen's Bench Act, a party suhpunaed to attend on an ex- amination sh,,nld he paid not only his railway fares or mileage hoth ways, hut also his witness fees f(jr as many days ;is he will certainly he ah- sent from his home in attending on the examination .-iiid returning home. (Ju(cre — Whether alterali(jns and mlerlmeations in a .suhixena. not au- llienticated hy the |H-otlionotary, do not make it invalid? i'ngcr v. Long, •\JI. -t.S4' Sec also Costs, III (m). WORDS AND TERMS. •■-Vlienated."— AV /risli. II. .361. " .Amount in (luestion."— .-//VA'm v nrlierly. XI, 6J4. " Hy reason of the railway." " Inte V, Canadian I'acific Raiheav to., \l. i6y. -^ ."By .^oth April,"— /v-t- Magec and Smith, X. 1, "Claimed." — Aslidoien v Free Cress Co., \'I, 578. ■' Clear idv\n."—Jolinstone v. Hall X. 161, •■ Corrupt." — AV Rockivood, II, 129; Re Beautiful Plains, X, 130. 687 WBITS. 688 .-! " Criminal Law." — Reg. v. David- son, VIII, 325 ; Reg. V. Herman, VIII. 330. " Current money of Canada." — Re St. Boniface, VIII, 474 ; Re Cypress, VIII, 581. " Effect."— Stet>hens v. McArthur, VI, 496 ; Roe v. Massey Manufac- turing Co., VIII, 126. " Expenses of operation and man- wgemcnt." — Charlcbois v. G. N. IV. C. Raikvay Co., XI, 135. " Feloniously did make an as- sault." — Reg. V. Chislwlm {Jacobs' Case), VII, 613. '• From day to day."— McM»cfef» V. I'onseca, VI, 370. "Gambling house." — Reg. v. Shaw, VII, 5i«. " Inimediatdy."— i?c Cartier Elec- tion, IV, 317. " Insolvent circumstances." — Bert- rand V. Canadian Rubber Co., XII, 27- " Judge " Is persona dcsignata. — Reg. V. Ro7i of Birkenhead Docks, L\, 214. .Anchor .A-^surance Co., VII, 607, .\ncona v. Marks. XL 656. .Anderson, Re, II. 50. -Ander-on v. Bank of British Col- mnbia, VII, 425; -XL 322. -Ander-on v. Clark. V. 405. .Anderson v. Commissioners of Ham- ilton Co.. V. o'). V. Culver. H, 94. V. De.-i'i. X, 357. 'I, IX.' "242. -on. yil, 58, '.'c Fire Insurance I,.' .'o .Anderson -Anderson Andersriii v. .Anderson \. .Andt'rson v. Co.. XL -Anderson v. '-"' T\^ 28. .Anderson \. S'iiline. T.W.. 109. -Andrew v. .Aitken. XI. 365. .Andrew v. Andrew. VHI.^oj. .Andrew v. Mrr^an. II. 217 Andrews. Re. \'IH. 1S4. -\ndrews v. Belfield. IX. 4^; -A ndrew: Bnrncs, XII, 223. ii CASES JUDICIALLY NOTICED. i\iulri'u> V. CliainiKin, 'I'.W ., .5.\j. Andrews v. DifiK^'. i. 144. All'UCU.s \. lni v. Belknap, III, ,^41. A|)ntliecarics Co. v. Beniley. Ill, 2. Appleby V. Myers, HI, 77; IV, I55- Appleton V. Binks, III, 443. Applctoii V. Canii)l)ell. \'. (>~. Aiipullinaris C. In re. X. 371. Arcangelo v. Tlioinpsiin, IV, 33. Archer v. Hudson. IX, jS,v Archibald v. Building & Loan Soci- ety, \'III, ii.S: IX, 71. Archihald v. Bushsey,\'Il. J7-3 : ^■HI, 07. i,;j. Archibald v. Archib.ald y. Archibald \. . _. . _ _ ,„ Arciiii)ald v, Vouville. \'H. 307; X. 220, 228. Arden v. Ciood.-icre, III, 203. Arniit v. Hudson's Bay Co.. III. 531. Arniston's Trusts, X, 589. Armstron.'^ v. Anger, IX, 116. Arnistrnng v. Ausman. I, 183. Auiistroiig V. Die Elbinger, III. 184. .\rmstrong v. Gage, III, 272. Armstrong v. P. W. & N. W. Ry. Co., I\'. 198; VI, 103. Anustroiig v. Stokes. XII. I2i. Arnitt v. Carnett, X. 633 ; XI, 527. Arnold v. McLaren. II. 197. Arnold v. Robertson. V. 211. 217. Arnold v. Robinson. I, 103. Arnott V. Redfern. T. W.. 2S3; III, 602; VT, 33. Arnott V. Bradley, V, 159. ilal(l;ni. TAV.. 201. Ilublcv. .XI. 4()4. Scully; T. W., 275- Vouville. \'H. 307 .\rriiwsniiili v. (Jiiaiuller, 111, 187 .\rlliur V. Bar, on, I\'. 405. .\sliburner v. .\laguire, 1\', 22. .\shbury v. Rich, \II, ijh. .\sid)urv Railway Carnage Co, v. Riche, IX, 253. .\shl)ury V. Riche, Xll, OO, 658. .A-hdown v. Dderick. IX, 318. Ashdown V. \\ Orl:, 111, }()5, Asher v. Winiluck. TAV., 348. .\shley V. Bates, Xll, 238. Ashley V. White, l\. 2(15. Ashton V. Wood, I\', 245. .\skeii \. Manning, V, 42. .Vslott V. Si'ulliaiiiplnii, \'I, 303. ct -seq. Association "l' Landed I'inanciers, Re, \ I, 100. .\ssop \. ^'ates. V, 373. .\s:ley y. .Mills, IX. 399. .\siiey V. Pnwis. HI. 4O4; IV, 44fj. .Aston's Case, VII, 60O. .Aston V. Cur/on, XII, 303. .Aston y. Iimis X, 231-7. AsiMi V. 1 .irker, II. 230. .'vicherley v. X'erno'i, V, 418. Alcl'.eson y. Portage la Prairie, .Xll. ^7• 420. .'vtkins y. Cook, HI, 440; V'll, 593. .\ikinsnn y. Braybrooke, T. \V., 279, 2X2; HI, 399. .\tlvinson y, .Xewcastle W. \V. Co., 1\'. 90. Atkinson y. Ritchie. I, 258. .\tt;;rk V. Brauiweli, 't'. W., 139. .Aitcnborough v. Clarke. I. 65. .Vttenhorough v. St. Catharines, V. M7. et se(|. .\ttornev. Re, VI, 23, 74. el seq.; 398,' et seq.; VII, 184. .Attornev-Gen.eral y. .Alexander, T. W.." 229. .Attorney-General y. Bishop of M.ui- chester, XI, 373. .Attorney-General v. Bucknell. Ill, 203' Aiiorney-General y. Cambridge, V. 82, 102. .Attorney-General y. Cleaver. V. 104. .Attorney-General v. Cohocs Co.. V, I OS. Attorney-General y. Colney Hatch Asylum. T.W., 356; V. 83. iii. Attorney-General v. Contois, V, 174. 185. Attorney-General v. Day, X, T14. Attorney-General v. East India Co., Ill, 202. CASES JUDICIALLY NOTICED. Hi l-'.(liniiiiil>, \', Emerson, VII, (Jarlmtt, T.W., Attonu-y-Gciicral v, 107. Attoriuv-Gencral v. 576; XI, .Kl. Att(>riiey-(iciKTal v. j()4: I\', T,,V); V Attoriicv-CkiuTal v. tidnclciliain, II, 47- " Attorney- General v. Grassctt, \'I1, 214. Attorney-General v. Great Eastern Railway, VII, 90; IX, 10, 233. Attnrney-(kneral v. Grote, III, 54. Attoniey-Cl'iRTal v. llallett, V, 85, Hq. 104. Attorney-General v. llarnier, T. W., 202. Attornev-General v. International Bridge Co.. T.W., 339; HI, 201. Attorney-General v. Lamplough, VII. 501. Attorney-General v. Leeds, T. W., 3.S^.' .\S9. 3f>3- Attorney-General v. Mayor of Liver- pool, \'I, 412. Attorney-General v. McXuhy, T.W'.. 240; V, 173, 185, 191. .■\ttorney-Gencral v. Mercer.s Co., VI I, 425, 429. Attornev-General v. Metropolitan Bd. Works, T.W.. 364. Attorney-Cieneral v. Niagara Falls Bridge Co., Ill, 202; V, 107. Attorney-Cieneral v. Queen Insur- anee Co., V, 125. Attorney-General v. Reid. IV, 496. Attorney-General v. Richards, V, 104. Attorney-General v. Ryan. V, 254. 302, .315. Attorney-General v. Rye. I. 361. Attorney-General v. Scott. XII. 453. Attorney-General v. Sheffield. V. 85, 102. Attorney-General v. Sillem, VI, 195, 459^ VII, 313, 340. Attorney-General v. Talbot. Ill, 372. Attorney-General v. Terry, I, 240. .\ttorney-General v. Toniline, XI. 146. Attorney-General v. Vigor, V, 140. Attorney-General v. Vivian, III, 203. Attorney-General v. Wilkins, XII, 303- Attorney-General v. W}^-ille. V, 243. Attorney-General of Hong Kong v. K. A. Sing, VIII, 380. .\ltoruey - General of Quebec v. Qucen'.s Insurance Co., Ill, 70, 5<'4. Attorney - General of Quebec v. Reed, ill, 70, 5O4 ; V, 121. Atwiiod V. .\liirger, VI. 203. Auger V. Ont.irio S. & 11. Ry. Cn., II, 10; [\', 170. 2J^. 5.t7. .Austin V. .Armstrong, I\', 394; VI, -M4. 37''- .\uslin \. (iuardiaiis of Bctlinal Green, I, 34O, .y7. .\ustiii V. Jackson, IV. 431. .\uslin V. Siiucoc, V. I2(). .\ustin V. L'nderwood. XI, 468. .Australasian Automatic Co. v. Wal- ter, XI, 147. .Australasian Steam Nav. Co. v. .Marzelti, T.W.. 3,V). .Avenell v. Croker, T.\V., 141. .\very V. Bnwden, V, 373. .\\vde V. Di.Koii, III. 407; IV, 440; VI, 340. .Axford V. Pennett. IV, 34. -Vylesford's Case, T.W., 24. .\y(itte V. Bnucher, Xf, ^,-2. .Ayr V. Oswald, IX, 247. -Ayscough V. Bullar, XI, 305. Baby v. Davenport, I, 64. Backcmnb v. Beckwith. I.K, 4.13. Backhouse \'. Siddle, V, 30. P.ackhurst v. Climkard, VIII, 422. Bacon v. Bacon, V, 146. Bacon v. V. S. Mutual Accident .As- sociation, X, 344. Badcley v. Consolidated Bank. \'I, 338. .35'). .363; IX, 19, 213: Xl. 207. Badgelv v. Bender, X, 236. Hadiiall v. Haley, VII. 42. Badrick v. .Stevens, IV, 21. B.ailey. Re. XI, ,3.33. Bailev v. .Adams, VII. 334- Bailey v. Birchall, IX, 602. Bailey v. firiflith, I, 253. 236. Bailey v. Porter. II. 276; IV, 30. Bailey v. Richardson, IX, 403. Bain v. Fothergill. I. 24. Bain v. Bain, II, 228. Baker V. Baker. III. 55: VIII, 34, 40, 43- Baker v. Batt. IX, 614. Baker v. Farmer, III, 57. Baker v. Judges of Ulster Common, V. 322. Baker v. Saltfleet. VII. 234, 241. Baker v. Taylor, V. 322. mr^ iv CASES JUDICIALLY NOTICED. I' *' Baker v. Trainor, III, 652. Balch V. Wastall, IX, 107. Baldry v. Bates, VIII, 314, 316. Baldwin v. Benjamin, III, 596. Baldwin v. Benjamin, XI, 386. Baldwin v. Peach, V, 209; XI, 386. Balfe V. Lord. IX, 69; X. 227. ^■alfour V. Drummond, VIII, 46, 336. Brdkwell V. Beddome, III, 37. Ball V. Ballantyne, T. W.. 201; V, 239; VII, 66. Ball V. Cullimore. IV, 484. Ballard v. Burgctt, IX, 301. Balsley v. Hoffman, IV. 55. Bamberger v. AIcKay, III, 14. Bamford v. Baron, IX, 87. Banckes v. Ollertcn, XII, 7. Bank v. Watts, II, 277. Bank of Australasia v. Nias, T. W., 279. Bank of Beloit \ . Beale, IX, 587. Bank oi British North America v. Eddy, III, 426, 455- Bank of British North America v. Rattenbury, I, 304; IX, 316; X, 421. Bank of Hamilton v. J. T. Moye Manufacturing Co., X, 372. 631. Bank of India v. Rich. VII. 428. Bank of Minnesota v. Page. VII, 133, 145- Bank of Montreal v. Cameron, VII, 426, 427. Bank of Montreal v. Campbell, III. 89. Bank of Montreal v. Haffner, I, 171. Bank of Alontreal v. Hopkins, III, 401. Bank of Montreal v. Little. XI, 499. Bank of Montreal v. McTavish, T. W., 2or. Bank of Montreal v. Poyner, VII. 573; n. 30Q. Bank c" Montreal v. Ryan, I, 131. Bank o .Jontreal v. Taylor. I. 183. Bank of N. S. Wales v. Ow.^on, VI. 488. 489. Bank of Nova Scotia v. La Roche. II. 6^- Bank of Nova Scotia v. McKeand, 11. 312. Bank of I'louth Australia v. Abra- hams. VII. 88. 98. Bank of Toronto v. Eccles. II. 99. Bank of Toronto v. Lamb. V, 122, 123. Bank of Toronto v. McDpugall, T. W.. 201 : V, 71. Bank of Toronto v. Perkins, V, 21 r, ■215. Bank of U. S. v. Carneal, II, 277; IV, 30. Bank of Upper Canada v. Beatty, IX, 316. Bank of Upper Canada v. Brough, III, II. Bank of Upper Canada v. Thomas, T.W., 202; X, 422. Bank of Upper Canada v. Vanvoor- ish, I, 102. Banks v, Goodfellow, IX, 609. Bann v. Dalsell, III, 602. Bannerman, Re, V, 48. Banque dcs Trauvaux Publiques v. Wailis, II, 51. Bard v. Poole, I, 185. Barker v. Graham, XI, 477. Barber v. Maughan, VIII. 125. Barber v. Waterworth, VIII, 553, 564- Barclay and Darlington, In re, Xll, 91. Barclay and Township of Darling- ton, In re, X, 532. Barfield v. Kelly, III, 654. Barker v. Dynes, III, 524. Barker v. dreenwood, IV, 25S. Barker v. Mark, III, 573. Barker v. St. Quintin, XI, 610. Barker v. Weedon, IV, 277. Barlow v. Broadhurst, III, 217. Barnard v. Higdon, VI, 282, 283. Barnard v. Sntion. V, 233. Barned's B. C. v. Reynolds, VI, 210, 214. Barnes v. Boomer, T. W., 250: I, 15^. 15,?: Barnes v. District of Columbia, IV, 90, lOI. Barnes v. Keane, IV. 518. Barnes v. Kaester. X. 580. Barnes v. White. Ill, 3'. Barnhart v. Greeiishields, T.W., 18. Barns v. Patch. VI. 165. Barrett, Re, VIII, 184. Barnett v. Hooper, VII, 425, 430. Barney v. Adams, IV. 190. Baron v. Husband, II. 261. Baroness Wenlock v. River Dee Co., IX. 2X'>- 246. Barough v. White. X, 335. Barrack v. AlcCnlloch, IV. 250. Barrett v. Winnipeg. VIII. 411. 13, 14, 15. 16. 50; X, 533. Barrow-in-Furness & N. C. Land & Investment Co., V, 387. CASES JUDICIALLY NOTICED. Bartie v. Ahisgrave, XI, i8i. Bartlett, Ke, III, 581. Bartlett v. Amlierstburg, VI, 93. Eartlett v. Kingan, IV, 14. Bartlett v. Pickersgili, I, 9, 10, 11. Bartlett v. Rces, II, 38. Barrett v. City of Winnipeg, X, 533. Barrough v. White, ill, 217. Barrow v. Hill, IV, 303. Barry, Re, V, 138. Barry v. Butlin, IX, 607. Barry v. Harding, III, IJ2; \'I, 113; X, 510. Barry v. Stephens, VI, 531. Bartlett v. Stinton, IX. 319. Bartley v. Vinor, IV, 218. Barton v. Bank of New Suiith Wales, X, 440. Barton v. Fitzgerald. X, 506, =;ii. Barton's Hill Coal Co. v. Mtid, V, 3(^7. 370, ^7^; XI. 531. Barton's Trusts, Re. III. 53. Bartrani v. Williams, T.W., log. Barwick v. De Blaciuiere, II, 31 ; VII, 426, 427. Baskerville v. Brown. HI. 1^3. Bassett, Doe d. v. Thew. X, iHo. Bassett v. Torringion. V, iqi- Basten v. BuUer, II. 104, 105. Batenian's Trust, Re, VI, 5-|7, 54S. Batenian v. Bailer. XI. 214. Batenian v. Balenian, V, 297. Batenian v. Mayor of Ashton-under- Lyne. II. 319. Batenian v. Ramsay. V, 234. Bates V. Graves. II, 260. Bates V. HiUcoat. II. 38. Bates V. Townley. X. 402. Bather v. Brayne, Xli. 23:^. Bathgate v. Merchants' Bank. VI, 498. 500. 506. Batt V. Price.' HI. 543. B.ittenhury v. Nyle. T.W.. 270. Batterby's Trusts. Re. X. -91. Battley v. Faulkner. IX, 144. Bawden v. London Ass. Co., XII. 276. Baxt'M" V. Illinois. \'\. 129. 142. Baxter v, Pritchard. TAW. 198, 201. Baxendale v. Bennett. HI, 412; IV, 4}0. 441; VI. 340. 341, 342, 344. Bayley v. Bucklan II. 2q8. Bayley v. Forder. IX. 125. Bavlev v. Manchester, eic. Rv. Co., X, 45- Bayley v. Williams. X. 2S7. Bayiis v. Lintott, V, 198, 201. Bayne v. Slack, HI, 186. Baynon v. Batlcy. HI. 540. Beale v. Saunders, XI, 158. Beall V. Smith, V, 139. Beals V. Gurnsey. VI, 39. Beard v. Gray. II, 384. Beard v. Steele. V. 292: \[\, 487. Beanian v. Whitney. XH. 6. Beasley v. Beasley. H. 226. Beattie v. Lord Ebury, \'. , ; VH, 118. Beatty v. Fitzsimmons, X. 442. Beatty v. O'Connor. X, 569. Beatty v. Fowler. VI. 178, i>;o. Bevan v. Jones. IV, 465. Beavan v. Lord Oxford^ I\'. 425. Btavan v. Beaver, X, 100. Becherviase v. Lewis, X, 212. Beck v. Kantorowicq, XI, 503. Beck v. Smith, VII, 350. Beckett v. Cordlev, IV. .365. Beckett v. Midland Railway. VII, .|04, 408. Beckett v. Micklethwaite. X. 581. 382. Beckford v. Tobin. HI, 67. Beckwith v. Philby. T.W.. 77. Beddall v. Maitland. HI. K,:,. Bedford v. Deakin, VI, 912. Bedson v. Maude, HI, 67 . Beebe, In re, X, 339. Beccher v. Austin. XI. 386. Beemer v. Inkster, IV, 266. Beer V. London & Paris Hotel. III. 437- Beer v. Stroud. XII. 40. Beevor v. Luck, X. 58 [. Belcher v. Goodered. III. 317: Mil, 480; IX. 312. Belcher v. Llovd, XI. ():4. Belcher v. Patten, VIII, '416, 41K. Belcher v. Prittie. XI. 348. Belknap v. Belknap. V, 99. Bell v. Antio'p London & ISrazil Line, VH. 420. Bell v. Bell. VIH. n. 34- r. 44. Bell v. Cauer. IV, i8r. Bell V. Hevore, I, 304, 305. Bell V. Drew. I. 353. Bell V. Free, T.W.,' 28^. Bell V. Hull & Selhv R. C. T. W., 365. Bell V. Landon, IX. 60. Bell V. Rcainnore. VII. 506, 50S. 514, 515. 517- Bill V. Simpson, T.W.. 108. Bellamy v. Brickendcn, IV, 42. Bellamy v. Sabine, VH, 106. VI CASES JUDICIALLY NOTICED. n 5 Bcllccliasse Election Case, VIII, 588, 589, 592, ()0I. Bcllhouse V. Green, IV, 232. Bellhouse v. Mellor, X, 6y6; XI, 266. Belnionte v. Aynard, I\ , joj ; VI, 271. Belsliaw v. Bush, XI, 297. Belt V. Lawes, VI, 488, 495. Belts V. DeVitre, X, 45. Benazeck v. Besset, III, 606. Bendix v. Wakenian, VI, 326, 331. Benedict v. Arthur. IV, 83. Benedict v. Schaettle, VI. 276. Benic v. Macklin, IV, 228. Benisford v. Milward, IV, 365. Benjamin v. Elgin, VII, 5, 13. Benjamin v. Ilolyoko Si. Ry. Co., XI, 81, Benj amine v. Storr, III, 27. Bennett v. Alcott, VII, 225. Bennett v. Harfoot, II, 157. Bennett v. Lee, II, 154. Bennett v. Pharmaceutical Associa- tion of Quebec, III, 625. Bennett v. Taylor, X, 18. Bennett v. Turner, X, 326. Bensley v. Bignold, IV, 218, 361 ; IV, 358. Benson v, Hadfield, III, 129. Benson v. Lamb, III, 461. Bent V. Young. VII, 427. 431. Bentall v. Burn. Ill, 434. Benton v. Thornhill, TAV.. 202. Beraan v. Greenwood, 11, 216. Berkeley v. Elderkin, III, 90. Berkshire Bank v. Jones, IV, 31. Berlin v. Grange, IX, 336. Bernardin v. Xnrth Duffcrin. IX, 580. Bernardin v. North DufYerin, XII, 45. 477- Berrie v. Howitt. IX, 599. Berrisford v. Milward, XII, 302. Berry v. Berry. VI, 163. Berry v. United States. II. 237. Berry v. Zeiss. I, 223. Bertrand v. Heaman. XII. 344. 385. Bcrlrand v. Hooker, XII, 478. Bertrand v. Parkcs, VIII. 236. Bcsley v. Besley. XI. 306. Bessel! v. I-andsberg. X. i. Bcssev V. Windham. V, 230, 2^4; XI, 469. Best V. Haynes, V, 347. ,•^48. 349. 355. Betham v. Benson, I, 179, Betham v. Benson, X, 55. Bethell v. Clark. VI. 278. Bethune v. Corbctt. IV, 191. Betts V. Cleaver. III. 555. evan v. Ailorney-General, III, 54. everley's Case, V. 138. cverley v. Lincoln Gas Light Co., \T. 9^; T.W., 3.^9- ewicke v. Graham, XI, 322. ewley v. Atkinson. XI, 212. eynon v. .Morris, IV, 58. ickerton v. Walker, V, 208. ickford v. Chatham, VI, 198. ickford v. Grand Junction Ry., VI, .392. 39.3: Vil, 90, 95. 97; IX, 11. ickford v. Welland Rail Co., V. 134. idder v. Bridges. III. 675; XI. OJ3. igelow V. Bo.xail, X. 76. igelow V. Folger. Ill, 167. iggs V. Lawrence. V. 66, 69, 70 iggs v. Wood, \'I, 468. gnold. Ex parte, X. 117. ignold V. Audland, V, 222. iddleson v. Whitel. T.W.. 282. ilke V. Havelock. Ill, 5^5- illinghurst v. Walker. III. 124. ills V. Smith, T.W., 198, 200. 201 ; XI. 341. lilon V. Llapperton. \ I. 115; VH, 58. 60. 37- 95. 234. 239, Biney v. Picnt, III, 187. I'.irch V. Blagrave, V. 232. Birch V. Sherrat. VIII, ,13. Birch V. Vestry of M., XI H^rchall v. Pugin, IX, 606. I'.ird V. Brown, VI, 27^. Birdsall v. Asphodel, VII, 231. 342. Birdsall v. Clark, XI, 232. 360. Birdsall v. Phillips. XI. 223. Birkett v. McGuire. I, 247, 248, 249, 251. 2s:^: 253. 254. irkett V Wliitehouse Junction Ry. Co.. T.W., 239. irmingham Estates v. Smith, V, .342. iron V, Mount, T.W^, 202. ischoffsheim. Re, VI. 371. isett V. Strachan. IV, 45. ishop V. Ilayward, X, 647. hop Engraving & Printing Co., Re. IX. 104. ishop of Ely v. Bcntly, III. 372. ishop of London v. McNeil. IX. 153. ishop of Oxford v. Leighton, V, 274, 279- ishop's Waltham Ry. Co.. In re, 910. issela v. Starn. V. 247. isset V. Burgess, T. W., 202. issack's v. Bath Collierv, III. ^24. ittlestone v. Cooke. T.W., 198. CASES JUDICIALLY NOTICED. yii: VII, d Biack V. Allen, III, 329. Black V. Harringion, III. 13. Black V. Reynolds, VI. 616. Blackburn, Ex parte, XI, 342. Blackburn v. Gummerson, II, 260 : IV, 137. Blackburn v. McKinlcy. VIII. 352. Blackburn v. Parkins'm, III, 543. Blacklcy v. Doolcy, IX, 581. Blacklock v. Uobie, III, 505. Blackmore v. Flemyng, T.W.. 283, Blackniorc v. Glamorganshire Canal Co., T.W., .V)3 : y. 96. Blackpool V. Bennett, XI, 229. Blackwell V. Nash, T,\V.. 26S. r.lagrave v. Bristol W. W. Co., VI, 170. 2.50: VI. 4S4, 4S6. Blaikie v. Chandless, V, 208. Blair, Re, V. 139. Blair V. Smith, VI, 2S5 ; VII, 475- 478. Blake, Re, VI, 22. 2t,. 27, 398, 400. Blake's Case, T.W., 120. Bl.'ike V. .'Xppleyard, III, 165. Blake v. Jones, VI, 177. Blake v. Lord Wallscourt, IX, 25. Blake v. Power, 10, 253. Biakenure v. Glamorganshire Canal Co., II. 108, 109. 112. Bland v. Andrews, III. 2^6. Blanchard v. Goldv, IX, 618. Blane v. Bell, IV,"377. Blann v. Bell. Ill, s8. Bleasdell v. Townsend, T.W., 190. Blecklev v. Rvmer, IV, 57, 58. Blew V. Wyatt, III, 156. Bligh vs, . II, 193. Bligh V. Earl of Darnley. IV, 446. Bligh V. James, \^, 74, Bliuht V. Rav, X, 519, 523. Bliss V. Claris, VI, 4=;4. Blissett V. Daniel, I. 18. Blissett V. Hart, IX, 274. Bloomfield v. Brooke, I, ,^t,. Bloomenthal v. Ford. XI, 640. Blore V, Sutton, T.W.. 379- Blouit V. Harris, II. 306. Blundell v. Brettargh. Ill, 560. Blunt V. Cumyns, II, 195. Blvth V. Smith, VI, ^2v Blvih V. Young, IV, ,^30. 35i ; VI. Boaler v. Mayor. I, 248. Board of Trustees of the Separate Schools of Belleville v. Graing- er, VII, 31 T. Beard of Works v. United Telephone Co., TX, 263. Bodenham, Ex parte, T.W., I53. I54- 207. Bodenham, Re. \'I, 23. Bodenham v. Bennett. X, 608. Boel.ju V. Miliaden. VII, 487. I'ohling V. Inglis. \'l. 273. P.oland, Ex parte, XI, 383. I'.olcknow V. I'isher. VII, 425, 429. Bolkow V. Foster. IX, 163. Pinland, I'"\ pane, XI. 409. Bone V. Ekless, V. 66, 67. Bouithon V. il'ickmore, IX. 16. Bonnard v. Perryman, XI, 623. Bonneau v. Berard, IV, 466. Boton V. JelTrey, IX. 409- Boodle V. Davis, VI. 196. B(ink V. Bofik. X. 185. Boone V. I'.vre. T.W.. 269. re, IX, 137. V. Xash. T.W.. 136. Booth. II. 180, Mcfutvre, \'. 91, Moftait. XI. 76. Rich. If. 1:14. Traill, IX."i?6, Clive. III. 6v}. Blundell, IV. 467. BUmde". XII, 275. Case. III. 213. Rowe. VI. 611. v. V. V. 302. Poor, In Boorman Booth V. Booth Booth Booth Booth Brothe V. Bootle V. Bootle V. Boraston's Bordien v. Bordon v. Birdon, T.W Borough of Bathiirst v IV, 06: VI, 80. Boston of Sandwirh Glass Boston. VII, 13. Boston Deen Sea Fishing, etc., V. Ansell. IX, 420. 124. McPhersnii, Co. V. Co. P.o^we'l V. Boswcll V. Boswelt V. 133- Bothamlcv Bn'hell y'. Bothomlev Coaks. III. 7: V. 263. Pe-figrew, VITI. 03. FutlierL-mil. I, 238; IV, y Sherso'i. HI. 33. Afariyr. \'ItI. 244 V. I.ord Fairfax. IV. 317. Both well Case. IV. 32-I Bottomley v, Mittall. \T, 10. 12. Boucher, Re. XI, 372. Boucher v. .Sherman. X, 170. Boucher v. Smith. III. joi. Boughion v. F'-cre. VW]. 149. Boughton v. Ki'icfht. IX. 616. Boulcot V. Hughes. Ill, 236, Boulcott V Woolcott. I. 121. Boulthee, Re VI. 308. Boultbee v. Shore. III. 130, 132. Boulter V. Hamilton. TV 357, 366. Boultnn V. Crowthcr XI I. 423. 519. Bnilton V. JefTrey, T.W., 249.' m I';; FB," • :J1 'Ih' vin CASES JUDICIALLY NOTICED. Boulton V. Jeffrey, I, 80, 15J, 153, lioullon V. Jeffrey, V, 177. iiuultuii V. Jeffrey, IX, 46, 41 1. IJinikon V. .McDuiiough, V, 177. IJuuiton V. Peterborough, XI, ^24. Uouriie V. Mason, 111, 120. Boursot V. Savage, Xll, 252. Boustead v. Whitmore, 111, 654. Bower v. Brainidge, T.\\., 190; IV, 229, ^S^- Bower v. Bright, IV, 245. Bowes V. Howe, IV, 426. Bowker v. Bull, X. 580, 582. Bowman v. Eley, V, 299. Bowman v. Taylor, X, 439. Bown V. West, T.\V., 249. Bowser v. McLean, V, 100. Bowyer v. Woodman, T.VV., 275. Boyd, Re, VI, 499. Boyd V. Belton, IV, 365. B( yd V. Haynes, T.VV., 160; II, 192. Boyd V. Li ff kin, V, 407. Boyd V. Nasmith, X, 174, 199. Boydell v. Gillett, XI, 349. Boyle V. Tamlyn, \'I, 556. Beys V. Williams, III, 54. Brabst v. Ruff, VI, 260, 487. Brace v. Marlborough. XII, 303. Bracegirdle v. Oxford, T.W., 134. Brackenbury v. Brackcnbury, V, 234. Brackenbury v. Pell. IV, 52, 55. Brackctt v. Evans, III. 443. Bradford v. Chicago. \TI. 13. Bradford v. Young. X, iSo. 184. Bradley v. G. W. Ry.. VI. 556, 558. Bradley v. McLeish. VI, 14. Bradley v. Rice, XI, 265. Bradshaw, Ex parte, VII. 88, 97. Brady y. Lowell, IV, 90. 102. Brady v. Todd. VII, 587; VIII, 313, 315. 316. 317. .120. Brady y. Walls, I, 15. Braithwaitc v. Coleman. Ill, 163. Bramah y. Roberts. VI, 529. Branch v. Jesup, X, 430. Br.uidt y. Bowley, IV, 503. Brandon v. Brandon. IX. 404. Branford v. Freeman. XII. 238. Bransdon v. Dcdsburv. IV, 466. Branston y. GriffUs, IX, 424. P.rassard y. Langeyin, I\'. 276; V. 57. 60. Braun v. Mollett. V, 364. Bray y. Briggs, IX. 446. Bray v. Cb;indlcr, I^^ 62. Rrashicr v. Jack-oti. VI. 287. Brasppar v. West. III. 664. Breakenridgc y. King. \'\. 528. Brealey y. Collins, II, 287. Brecknock Nav. Co. v. I'ritchard, T. W., 122. Bremner, Re, VI, 189, 351. Brennier y. Hull, VI, 287. flrimstone y. Smith, XII, 51, 521. Brennan y. Brennan, III, 55. Bremian y. Howard, X, 169. Brennan v. O'Neill, VII, 384, 385. Brett, Ex parte, VI, 357. Bicil y. Marsh, III, 156. Brice v. Bannister, 1, 294, 298, 299; VI, 89. Brice y. Bletchley, T.V^'., 23. Brice v. O'Loane, T.W., 278. Bridge v. Branch, VII, 503. Bridge v. Ford, IV, 518. Bridger y. Whitehead, 111, 2. Bridges v. The Directors, etc., of the North London Ry. Co., VII, 154. Brigden v. Parkes, VI, 290. Briggs y. Ayncsworth, III, 268. Briggs y. Lewiston, etc., Ry. Co., IX, 265. Briggs y. Kenny, VIII, 395. Brillington, Re, V, 138. Brimstone y. Smith, VI, 68, S-3- Brind v. Hampshire, II. 26. Brine v. Bayalgette. T.W., 88. Brine v. G. W. Ry. Co., XL 114, Briscbois v. Pondrier, VII, 573. Bristol & Exeter R. C. y. Collins. T.W., 2s8; I, 160. Bristow y. Warde, V, 78. Britain y. Rossiter. XI, 156. 173, 304. British y. Krcbs, XII, 453. British Canadian Li.an Co. & Rac, Re. VI, 506. British Canadian Loan Co. v. Tear, X, 442. British Lmcn Co. v. Drummond, VI. Briu.Mi Linen Co, v. McEwan. IX, 143. British N. L. Association, Re, VI, 106. British Provident Life Society, Re, VI I, 608. British Provident Life Society y. British South African Co., XI, 57- Brittain v. Bank of London. T. W., p 1 Britten y. Webb. I. 121. Britton v. Ward. IX. 207. Broad v, Perkins. VHI. 132, 1^^,212, -H I rr ,. - CASES JUDICIALLY NOTICED. -Is. liroadbcnt v. Imperial Gas Co., VI, .ioo; \', 104. Broadlicad v. -Marshall, \'lll, 356, Brock District Council v. Bowcn, II, 287: V, 50; VlII, 141. Brockell v. Farley, I\', 425. Brockcopp V. Barnes. V, 148. Brodie v. Bowinanville, \'ll. 522, 526, 528. Brodie v. Northern Ry. Co., X, 7. Brodie v. Ruttan, IV, "423. Brodie v. Township of Bowmanville, In re, X, 530. Bronson & Ottawa, Re, T.W., 361. Brood V. Ham. T.W., 83. Brookfield v. Bradley, II, 155. Brooke, Re, V^. 166. Brooke v. Rooke, VI, 166. Brooking v. .Mandslay, VI, 365. Brooks V. Hassall, VlII, ms, 314, 315, 316. Brooks V. Marbury, III, 664. Brooks V. Mitchell, III. 217; X, 335. Brooks V. Piirton, V, 134. Brooks V. Roberts, T. \\'., 108; IX, 34- Broome v. Gosdcn, VIII, 65. Brophy v. Corporation of Village of Gananoque. V. 50. Brophy v. Gananocjue, VIII, 139, 141, 431, 432, 438- Broughton v. Lashinar, II, 196. Broughton v. Manchester Water- works Co., T.W., 339. Broughton v. Pensacola, VII, 138. Brounsall, Ex parte, VI, 400. Hrown. Re. V. 139, 142; VI, 9. Brown v. Ackroyd, VI, 216, 217. Brown v. Bamford, V, 61. Brown v. Bateman, VI, 362. Brown V. Belleville, I\', 104. 108, VI, 88, 10 1. Brown v. Brockville Ry., VI, 170, Brown v. Brown, V, 74, i. Brown V. Burton, IV, 36^. Brown v. C. P. R. Co.,Vl, 484, 48s; VIII, 448, 450. Brown v. Cavendish. III. 660. Brown v. Cocking, X, 269. Brown V. Davidson, III, 666; V, 240, .S02: VI, 67. 68, 70: IX, 441. Brown v. DcTastci, X, 1.^2. Brown v. Duncan. T\', 216. Brown v. Eastern & Midland Rv. Co., XI. 80. 135. Brown v. Gelkitly, III, 59; X, 102, 105. Brown v. Great Western Ry. Co., Ill, 546. Hammond, VI, 446. Hare, \', 66, 67. narrower, XI, 154. Howland, VI, 340, 345- Johnson, VI. 89; \TII. 453. 455- Kemplon, T. W., 198; XI, L. & X. W. R. Co., T.W., Brown V. Brown V. Brown V. Brown V. Brown V. 45-' . 4 Brown V. 348 Brown V. 229 Brown V. Brown V. Lindsay. VI, 88. Livingstone, VII, X, 181. Brown v. London &. X 538. Brown v. Brown v. Brown v. Brown v. General 229. Brown v. Roya 121, 122. V. Stead, IX, 399. V. Sweet, VI, 321. V. Thames ancl Mersey , VII, 427, 432. V. Wildbnre, T.W Dawson, T.W. Fryer, VI, 357' Murray, VIII, Poyntz, II, 191. V. Great Ccn. Min 46, 249: W. Ry., IX, McLean, IX. 397. Malpus, I, 281. .Ma'.leti, J 1 1, 25: \'I., 484. Metropolitan Counties & Assurance Society, III, Insurance Co., T. Ins. , 108. 47- 360. 61. W Brown Brown Brown Co. Brown Browne v. Browne v. Browne v. Browne v. Browning IV. 6. Browning 177. ' Brownlow \ . Board of Works, I, Bruce v. Cromar, \'III. 139, 141. Brunt V. Thompson. XL 311. Bruycre v. Knux, VII. 384, 385. Bruiy V. Grand Trunk Ry. Co.. I 352: I. 334. Bryant v. Beatiie. T.W., 124. Brvant v. Sutton, IX, 405. I'.rydges v. Branfile, Vn.'486. Buccleuch v. .Metropolitan B. of W.. \'I. 197, 190. 2or, 202, 207, 208, v. Ryan, \', ^2, 93; Co., Vl, 240. 209. Buchanan v, Buchanan v. Buchanan v. Campbell. I. 6; \'I, 433. Dinslev, IX, '517. -McMillan, IX, 405. Buckland v. Nose, I, 304. Buckle V. Bristow. VIII, 396. Buckley Trusts, Re, V. 138. u (if. CASE3 JUDICIALLY NOTICED. Buckley v. Furncss, \'I, 27/. Buckley v. .Munday, IX, 296. Buckley v. Wilson, IX, 399. Buckley v. Woodmason, XI, 525. Liudd. Ex parte, \'II, 607. I'.udd V. Fainnaner, X, JJ. Builden V. Wilkinson, XI, 322. Budge V. Budge, VI. 155. 157, 158. Buggin V. Beunetl. VI, 4; VIII. 210, 21 I. Buffalo Turnpike Co. v. City of Buf- falo, I\'. 464, 56. Building Societies' Trust, Limited, Re, VIII, 426. Builder v. Kerr, II, 192. Bull V. Price. V, 41 433. Bullain V. Obt,-, V. Buller V. Cripps, V; . .3 - .. Br.llev V. Bullev, W o.. Bullock V. Dodds. \'I. 547. 5\^- Bullock V. Dunneit. T.VV., 122. Bunbury v. Bunlnny, 11' 148. Bunce v. Ried, XI, -oj. Burbank v. Webl). I, 410. 412. Biirdekin v. Potter, VI, 583. Burdett v. Tiioinpson. IX. 616. Burges v. Wickhani. XI, 600 Rf.rgess v. Boltefeur. XI. 458. Burgess v. Hills, II, 197. lUngh V. Legge, III. 153. Bnrk V. Battle. M, 635, P.urke V, Taylor. III. 31. Burkinsliaw v. Birniinghani Rv. Co,, XI, 114. Burland v. MolYalt. VIII, 17S, 184. Burling v. Reed, T.W., 47, Burn V. Bnulton. VIII. -,22. S^^. 525. P)Urn V, Miller. IX, 470. Burnell v. N, Y, C Ry. Co,, III, 498, Burnes v. Snow. X, 640, Bi.rnhatn v. Gait, VI. 540. 54^: VIII. too, 104- Burnhani v. Walton. I\^ 230; VI, 298. Burns v. Broiner. I, 80. Burns v. Carvalho, \'I, 459. Burns v. Chapman, III. 92. Davidson. XI, ^6. Biirns V, Burns v McKay. VI, 320; VI, 501. Burpee v. Sparhawk, V. 398. 407 Bnrrell v. F.arl of Fgremont, IX. .'^96. Burritt v. Robertson, T.\V„ 202, Burrow v. Scanitnell, IX. 446. Burroiigbs \-. Oaklev. XIT. no. Burton v. Burton, III, 554. Burton V. Farl Chestorfield, III. 317. Burrill v. Jones, VI. to8. no. Burritt V. Hamilton, VI, 545. Burritt v. Rcnihan, VII. 533. 534. Burroughs v, Bayne, IX. 583. Burrowes v. Dc Blaquiere, VI, 230, 484.^ 4S6. Burrow's Case, III. 215. Burrows v. Lock, I, 52. Burrows v. Molloj-, V, 170. Burstall v, Bevfus, VIl, 207; XI. 383. Burt V. Clark. VI, 523. Burton v. Bellhouse. Ill, 332. Burton v. Souter. VI, 467. 469. Burwell v. Jackson. X. S09. Bush V. Beethain. IV, 36. Bush V. Davidson. X. 257. Bush V. Trowbridge Co., VI. 57. Busters v. White. XI. ^22. Butcher v, Henderson, VI, 458, Butcher v. Porter, X. 366. Butcher v. Stead, XI. 349. Butcher v, Stapelcy, T.W.. 24. Butler. Re, V. 138. Butler V. Cumpston. I. 213, ^^ntler v. Standard Fire Insurance Co.. I. .^07, Butlin V, Masters, XI. 265. Butterick v. Lowell. I\". 433. 459; VI. 3.S. Buttcmere v. Haves, IX, 632, Byrd v. Nunn, X. 169. Byrne v. Casev. XT, 20. Bvrne v. Mu.;^io. IX, 171. Bvron V. Metropolitan Salon Omni- bus Co., V. 243, 245. Pabell V. Vaughan, II. 20. Cadogan v. Kennet, T,W., 191; VI. 320, 490. Caarecn v. Lansincr. IX. 634. Cahill V. Cahill. IX, 491. Cahill V. London & Xorth-Western Ry. Co. I, 352, 353. Cairncross v. Lorimer. T.W., 73. Cairns v. Water Commissipuers. XI, Calahan v, Bahcock, VI. 277. Caldecott v. Caldecott, HI, qS. Calder v. Bull. VI, 43- Caldwell. Re. VI, I35- Caledonian Rv. v. Xorth British Rail Co.. VIL" 313 Caledonian Ry, Co. v. Ogilvey. VI, T97. 202. Caledonian Rv Co. v. W.alker's Trustees, VI, 197, 20S : VII, 404. 400. Callaghan v. Callaghan. II, 289, Callow V. Lawrence, XT, 299, Calhnn v. Lecson. VI. 113. I''i' CASES JUDICIALLY NOTICED. «i Co.. Vi Cameron v. Calvert v. Joliffe. XI. 524. Calvert v. Moggs. VIII. 448, 450. Camden v. Allen. IX. 357. Cameron v. Canada Fire Insurance 229. Hutchison, T.W.. 202. Cameron v. Kytc. V. 83. 84, 109. Cameron v. Lount. I\'. 344. Cameron v. Mcllroy. II. 190. Cameron v. McRea. \'. 170. Cameron v. Milloy, X, 556. Cameron v. Trask. VI. 366. Cameron v. Wait. \'II. 464; IX. 248. 258. Cameron v. Wheeler, I, 12. Cameron v. Wigle. I. 288. 289. 292. Camidge v. Allenhy, VIII, 588. 597. Cam^nell v. Beaver Ins. Co.. VI, 234. 239- Canipljelt. Re, VI. 19. 21. Campbell v. Barrie, T. \\'., 201. Cauiphell V. Beamisli. I. 501 ; VIII. 58. Campbell \-. Campbell. I, 320; X. 420. Campbell v. Campbell. XII. 169. Campbell v. Chapman. I, 304. Campbell v. Cnle. \'I. ,^2S\ VIII, 264: IX. 133: X. 2T,. Campbell v. Dearborn, VI. 177. Campbell v. Dickens, I\'. 251. Caiuphell v. Fleming, \'I. 147. 152, 410; XI French, T.\^^. 269. Genunell, IX. 19; XI. Campbell Camiibell v. 208. Campbell v. Gorehani. \'. 134. Campbell v. G. \\'. R.. I\', 220. 225, Campbell Campbell Campbell 393- Campbell Campbell 244. Campbe V. Jones. T.W.. 26S. v. McDonald, VI, 266. v. McKav, III. 199: VI. . Madden. I. 106. .Matthcwson, \'. 223; Moxhay. X, 159. X, Campbell v. O'Malley. III. '299. Campbell v. Robinson, \'I, 613. Campbell v. Scott, V, 104. Campbell v. Solomans, III. 532. Campbell v, Spotti-woode, T.W.. ^26: VII. 308: \'lir. 49. ?7. 7.^. 76'. 77- Campliell v. Thompson, XI, 615. Campbell v. Walker, III. 5. Canada Atlantic Rv. Co. v. Moxley, X, 662, 663, 66.V Canada .Atlantic Rv Co. v. Ottawa, XI, 228. v. V. Canada Centra! Rv. Co. v. Murray, VI, 88, loi: VII. 587. Canada Central Ry. Co. v. The Queen, VII, 22. 437. Canada Permanent Loan & Savings Co. V, Page, I. 367. Canada Permanent Savings Society V. Forest. II. 62. Canada Permanent Co. v. Forrest, V, 219, 262. Canada Perm. v. Todd. XII, 6. Canadian Bank of Commerce v. .\damson. IV. 22; V. 21. Canadian Bank of Commerce Middlcton. VI. 308. Canadian Bank of Conunerce Taskcr, IX, 62. I. madian Pacific Railwav v. Bennett. VI, 269. Canadian Pacific Railwav v. Burnett, VII, I. 8. 15, 16, 70."438. Canadian Pacific Railwav v. Calgarv, VI. 36. 51: X. 228." Canadian Pacific Railway v. Corn- wallis, IX. 45, 47. 408. Canadian Pacific Railwav v. Forsvth, VI. 304. Caiman v. Reynolds. VII. 567. 569, 571- Canntm v. Smallwood. VIII. 485; IX. 630. Canterlnuv v. .\ttornev-Gencral, V, 85. Canterbury v. The Queen, XI, 28. Garden v. General Cemetcrv Co.. III. .MI- Cardinal! v. Cardinal!. X. 483. Cardweiit v. Htmt, T. W., 125. Cfirdwel! v. Bavties, III, 681. Carew's Estate.' Re., Ill, 50S. Carew v. Johnston. IX, 17, Carev v. Wood. II, 289, 293, Carg'il! V. Bnwes, IV. 388. Carisbrook. Re. XI. 7,^. Carlisle v. Dade, V, 10. 14. Carlisle v. Orde. IX. 181. Carlisle v. Tait. IX, 362. Carlon v. Kenealy. III. 214. Carlson v. Williams, VI, 306. Carlo-; V. F.mcourt. III. 215. Carman v. Molson. X. 236. Carmichael. Re. III. 581. Carmichae! v. Gee. VIII, 34, 38. Carmichael v. Wilson, III. 64. Carne v. Brice. \', 34. 36, Cari'c v. Malins. V. 51. Carnegie v. Carnegie, X. 253. Carneilcy, Ex parte. VII. 604. * - xn CA3Ei JU1.ICIALLY NOTICED. ■If jt . I.- 'i ■.,: CariifiilLT, Re, V, 427. Cariifiilcr v. Hailcy, X, 503, 50S. Carpinter v. Blaiiford, 111, 322. CarpciiiLT V. Buller, \, 437, 439, 444. Carpinicr v. JJutturficld, 111, i6j. Carpuimir v. London & Brighton Ry., VI, 170, 171. Carpenter v. Mayer, IX, 87. Carpenter v. Parker. Vlli, 139, 141- Carr v. Allatt, X, 343, 374. Carr v. Clarke, VII, 222, 223, 224, 225, 227. Carr v. Stinger, \-, 131; VII!, SS. Carratt v. Moriey, 111, 535- Carrick v. Johnstone, X, 236. Carroll, In re, T. \V., 153. Carroll v. Burgess, IX, 485. Carroll v. Tight, I, 12. 13. Carron Iron Co. v. McLaren, T. \\ ., 231 ; III, 149; IX, 294. Carruthers v. Ardagh, I, 249, 254. Carruthcrs v. Reynolds, III, 332, Carruthers v. Ardagh, VI, 10, Ci.rruthers v. Currie, T.W., 202. Carruthers v. Reynolds, IX, 83. Carroll v, Safford, IX, 410. Carson v. Power, III, 246, C:;rter, Kx pane, V, 216. Carter v. Boehni, T.W., 24. C:,iter V. Carrv. IX, 104: X, .139, 444. Carter v. Slni)l)s, VII, 566, 568. Carter v. Sullivan, IV, 283. Carter v. Wake, VI. 300, 391, 393. Carteret v. Petty, XI. 54. Cartier, Re, Vlil, 479. Cartmell's Case, Vii, 88, 94. Cartwright v. McPherson, X, i. Carven,''Re, VII, t86. Carwick v. Young, II, 191. Carv V, Cleveland, III, 498. Cai-c' V. Laird, X, a'~^0. 488; XI, 365. Case V. Willis, X. 484. Casev V. Tordan, IV, 117. C.-ish V. Wells, ir. J12; IX, 320. Casher v. Holmes, \T, 43. Cass V. \\'aterhouse, T.W., 22. Casson v. Rnherts, XI, 167. CastcUi v. Cook, VI, 412. Castro V. The Queen, VIII, 399. Castle v. Bullanl. V, 369. Castle v. Downion, II, 306. Castle V. Playford. XI, 295. Castle V. Ruttan. II, 267. Castle V. Sworder, IIT. 434. Caston \-. Scott, X, 571. Castrique v. Barnal)o, ?<, T,,-\y. Caswell v. Murray, VI, 156, 157. Cates V. Knight, ill. 96. Calhcart v. Lewis, IV, 241. Catholic Puljlishing Co., Re, IX, 575, Catholic Publishing Co. \. \\ vman, IX, 162. (-'alhorpc, E.\ parte, V, 145. Catlin. Re, VII, 186. Catlow V. Catlow, IX, 604. Cattell V. Carroll, T, W., 202. Calton, E.\ parte. V. 147. Caultiekl. Re, VII, 600. Cave V. McKenzie, I, 10. Cavell V. Vaughan. X, 208. Cecil V. Butcher. V. 223. Central Bank, Re, XL 497. Central Bank v. Allen, V. 114. Central Rail & Banking Co. v. Miichell, XL .33- Central Bank v. Ellis, XII. 493. Centre Wellington Case, IV, 2O8. Chace v. Llurnian, V, 9. Chadwick V. Hunter. I. 17-2: HL 4^0. Chadwick v. Turner, VII, 384- Chadwick v. Holt, XII, 392. Chaffers v. Ileadlani, X, 152. Chalkley v. Carter, T. VV., 108. Chambers v. Caul field, IV, 209. Chaml)ers v. Ch;inibers, III, 58. Cliambers v. Manchester, etc., Ry. Co., VII, TOO. Champion v. Brown. IV, 248. Chambers v. .Miller. T. W., 82: X. 70, Chambers v. Robuison, VI, 263, 2 x}, 266. Chaniberlayne v. Green, V, 316. Cham1)erlain v. Trcworth, IV, 155. ("hamberlain v. McHonald, I, 2ig. Chancellar of King's College v. Roc, I. 361. Chandler v. Bcldcn, VII. 534- Ch.-.ndler v. Ford, XL 50. Chancy v. Payne, II, 60. Chai)ei House Colliery Co., \TI, 256, , 257. Chapel v. Hickes, II, 107; IX. 470. Chaprcil v, Davidson, VI, 486. Chapmen v. Partridge, T.\\'., 72. Chapman v. G. W. R., X, 7. Chappell v. Davidson, VIII, 448, 450. Chappel V. Durston, V. 342. Chappcl V. Pitiday. V. 56. Chard v. Jervis. VI. 3^4. Ch.'.rgc v. Farhall. VIII. 4S0; IX. 312. Chari;ig Cross Advance & Deposit Co., E.\ parte, V, 211. Charles v. Dulmage, IX, 417, Charles v. Jones, X, 560, 570. CASES JUDICIALLY NOTICED. xiii Charles v. Jfnics, XI 1, _'2.?. diaries River iJridgc Co. v. Warren Briilge. IX, 242. Charles Stark Co., Re, XI, 258. Charleton v. Alway, V, 39. C harltoii V. Charlton, IX. 602. Charlton v. Watson, X, 22"/. Chartered Mercantile Bank v. Dick- son, X, 335. Charlet v. Greaine, II, 60. Chase v. Gohle, T. W.. 202; VI, IIJ. Chase v. Westniore. VII, 534. Chatlicld v. Conierford. T.W., 83. Chattield v. Sedgwick. XI, 365. Chatterton v. Saul, III, 340. Cluittcrtoii V. Watney. III. 469; V, 25. 30. Cheney v. Courtois. IV, 514, 521 : VI, 584., Cherry v. Thompson, I. 104. Chesterfield v. Jansscn, T. W., 194; VI, 40. Chcsternian v. Mann. III. 562. Chcwett V. Great Western Ry. Co., I, 201. Chicope Bank v. Philadelphia Bank, IV., 31- Chicago City Railway Co. v. The Peo- ple, IX, 274. Chic.igo Rv. Co. V. Me -chants' Bank, XII, 505. Chicago V. Tihliets, VI, 39. Chichester v. Donegal. IV, 58. Chidley v. Chnrchwardcns of West Mam, IX. 97. Child V. Marsh, II. 222. Child V. Stenning. VI, 325, t^},2. Child V. Stemiing, XII. 207. Childers v. Childers. V, 223. Childs V. Northern Ry. Co., X. 343. Chincry, Ex parte, VI. 211, 219. Chinncry v. Evans, XI, 542. Chisholm v. Sheldon. 11. 295. Christie v. Johnson. III. 14. Christophersnn v. Bare. T.W., 77. Christoplierson v. Burton, IX. 370. Christophers.'Mi v. Lotinga, IT. 31 ; VII. 427. Chittv on Pleadings. V. 136, 338. ^60. 428. Cholmeley v. Darlev, V. ir6: iX. 626. Chaplin v. Chaplin. II, 153. Chowick V. Davics. IV. 84. Chuck V. Cremer, XII, 109. Chumlev, Ex parte, V. 147. Church' V. Ahell. VT. 287. 288. Church V. Fcnton. VI. 36. 567, 568, 48?. W.. VI, Co. 525. 5(J9. 575; IX. 557. 41,?, 4,7 Churcii V. Imperial Gas Co., T 3.39; I. .V'o: VI, 89. 9S. Church V. .Marsh, IV, 3.30. (/icely V. Bennison. IX, },2. Cinquniars v. iMiuitahle I'"ire In IX, z^. ripperley v. Rhodes. I, 303 City Bank v. Cheney, IV, 201. City Bank v. Smith, T. W., 202. C'ity Discount Co. v. .McLean, X, 479. Lity of ['"redericton v. 'J'he Queen, II, .333; III, 621. City of (;iasg(;w Ry. Co. v. Hunter, VI, 202. Citizens' Insurance Ci.. v. Parsons, VII. 391, 327. City of .Memphis v Brown, VI, .VJ- City of Milwaukee v. I loftier, V, 38. City of Toronto v. Shields, II, 28. Citizens' Insurrmce Co. v. Parsons, III. 616; VI, 47, 48. 37, 310: I.V, 138. Civil Service and General Stores, Re, VI, 106. Clack v. Holland. XIT, 263. Clancy v. Conway. III. ^01. Gl.uicey v. St. Jean. III. 298. Clapp v. Sanderson, IV, 488. Clarence Rv. Co. v. G. N. E. J Co.. T.'W., .363. Clark. Ex parte, V. 1.18. Clark, Re. XI, .338. Clark V. .Mdcrhurv Union Cl;irk V. Bogart. III. 307: Ry. VII, 268. X, 381. Clark V. Buchanan, VII. 300. 314, Clark V. Bidmer. IV. 417. Clark V. Clark. III. 203. Clark V. Cuckficld Union, T.W., 330. Cla.rk- V. Cuckfield Union. XII, 473. Clark v. Grav. V. 336. Clark V. TTalford. T.W^. 142. Clark V. Hamilton, XII. 4/6. Clark V. Holmes. V. '^74. 437. Clark V. Morrell. T.W.. 202. Hark v. Scott. VTI. ^j, 23 1. Hark v. Smith. V. 61. Clark V. I'nion Fire Insurance Co., V. 162. Clark V. Wat-^on. T. W.. 269 Clarke. Re. VI. 338. Clarke v. Creigh'on. T. 222. 2.?^ Clarke v. Creighton. VHT. 172. Clarke, Re. Conmhe v. Carter. VTTI, 43.^. Clarke v. Creighton, XII. 4-2 Clarke v. Cuckfield l^nio-i T\'. 104, \o(\ 107; VI. 88. 97, 98. wm t; , m XIV CASES JUDICIALLY NOTICED. Clarke v. Dickson, XI, 584. Clarke v. Esviiig, XI, 267. Clarke v. l''arrell, X, yi. Clarke v. 1 lart, T. W., 19. Clarke v. Joselin, XI, 103. Clarke v. Lord, X, ()0. Clarke v. McDonald, \'I, 2. C'larke v. Martin, VI, 467, 4O9. Clarke v. Morgan, VI, 5«6. Clarke v. Rilcliie, III, 505. Clarke v. The (Juccn. IX, 411. Clarksoii v. Henderson, XII, 149. Clarkson v. Kittson, I, 58, 60. Clarkson v. Scott, III, 120. Clarkson v. Stirling, VI, 500, 502. Claxton V. Sliiblev, VI, 36, 449; IX, 484. Clay s Case, X, 281. Clayton's Case, 111, 379; X, 47J, 479. Clay V. Stephenson, VII, 487. Cleland, Ex parte, XI, 655. Clement v. Gunhonse, XI, 102. Clement v. Matthews, XI, 185. Ckinenls v. Benjamin, V, 369. Cleimnow v. Converse, T.W., 201. Clements v. Machebaeuf, III, 445. Clements v. Matthews, IX, 424. Clements v. Wells, 111, ^42. Clerk V. Wright, T.W., 24. Cleveland Press Co. v. Fleming, X, .■^04- Clever v. Kirknian, XI, 102. Cliffe v. Wilkinson, 111, 609; VI, 176. Clifford v. Taylor, VI, 223. Clifford V. Logan, XI, 184, 507. Clifton v. Robinson, VI, 410, 411. Clindinning v. Varen, IX, 162. Clinton v. Englebrecht, II, 2^7. Clissold v. Machell, V, 318. 328. Close V. Belmont, III, 365. Close v. Phipps, VII, 5. 11. Clothier v. Webster, IV, 95, 99. Clothier v. Webster, XII. 425. Clough V. London & N. W. Ry. Co., VI, 152, 154, 410. Cloutier. Re. XI, 574. Clover v. Adams, V, 133. Clugas V. Kenlula, IV, 34. Clugas v. Kenlula, V, 67, 69, 70. Chitc V. Robertson, X, 504. Clutlerbuck v. Jones, V, 346. Clutterbuck v. Wisetnan, I, 12. Coan V. Bowles, VI, 526, 331. Coates V. Clarence Ry. Co., T. W., 364- Coates V. Collins, X, 604. Coates V. Sandy, T.W., 109. Coates v. Stephen, X, 81. Coates v. Williams, II, 99, 100. Coatsworth v. City of Toronto, III, 77. Cobbett V. Warner, VL 151, 155, 151); VIII, 216. 217; XI. 254. Cosgrove v. Corbett, T.VV., 251. Cock V. Borradaile, III, 382. Cocker v. Mnsgrove. VIll. 410, 412. Cocker v. Tempest, XI, 383. Cocking v. Ward, XI, 156. Cockle V. The London & S. E. Ry. Co., VII, 154. 159. Cocks v. Ilarman, T.W.. 153. Cockshutt v. Bennett, III, 505. Coe v. The Township of Pickering, VIII, 431, 438. Coe V. Wise, .\ll. 45, 425. C'oglilan V. Cumberland, XII, 557. Coghlan V. Ottawa. XII, 426. Cohn V. Davis, T.W., 108. Cohen v. Morgan, V, 346. Colburn v. Duncombe, IV, 241. Colclough v. Sterum, Vlll, 558, 564, 575- Cole V. Campbell, IV, 393- Cole v. Glover, III. 23, 668. Cole v. Terry, 111, 525. Cole V. Manning, \ , 247, 248. Cole v. North-Westcrn Bank, X, 693. Cole v. White, T.W., 24. Coleman v. Cooke. Ill, 215, 655. Coleman v. Sarrel, VII, 210, 214. Coleman v. Toronto, X, 664. Collen v. Wright. X, 203. Collet V. Lord Keith, XI, 477. Collet V. Preston, X, 301. Collin V. Carley, II, 74. Colling, Re, V. 427. Collinridge v. Paxton, III, 146, 259. Collins, Ex parte, IX, 268. Collins V. Bristol & Exeter Ry. Co., T.W., 259. Collins V. Burton, III, 655. Collins V. Gibbs, T.W., 269. Collins V. Goodyer, IV, 423. Collins V. Hickok, VII, 145. Collins V. Rodes, X, 481. Collins V. Shirley, III, 129. Colonial Bank v. Willan, VI, 15. Colquhoun, Re, III, 40. Colquhoun v. Seagram, XII, 31. Colson V. W^illianis, XII, 65. Colston \. Berens, IV, 277, 278. Colestone v. Hiscolles, X, 365. Colt V. Bishop of Coventry, V, 322. CASES JUDICIALLY NOTICED. XV 259- Co., I- J!. Columbia Insurance Cu. \. Lawrciici.', \'I, Jjy, J.?4. Colycar v. Lady Mulgr.ive, III, i-'o. Cdlycr V. ImucIi. 1.\, 45O. ColyLT V. S))kT, XI, 5J_'. CoMihc V. Corporal iun of London, XI, 3Jy. Coniber'.s Case, X, 186. Conuiicrcial Bank v. Bissett, 8, .^13, 317. Coniniorcial Hank v. Cooke, lU, 654; IX, 440. Conuncrcial Bank v. Conmiercial Bank v. Commercial Bank v XII, 110. Conniicrcial Bank v. Wilson, T. W., M2. Connnishioncr of Railways v. Brown, VI, 154; XI, 2-5; VII. 107. Compagnie Financiere v. Peruvian Cuano Co., VII, 577. V. Uavi.s, XI, 615. Ehvood, V, 243. Harris, X. 42. .\lcConnell, Connnonwealth Commonwealth Connnonwealth Connnonwealth Commonwealth R. Co., V. 99 Conistock Concha v Downey, IV, "578. Haynes, XI, O15. Knapp, X, 305. Pittsburg & C. R. ,,. 100. \. Beardsley, X, 257. Concha, X, 184. Moore, IX, XI. 532. Rricc, V. 67. . Gillies, II, 108. Cheney. T. \V., 202; V, Confederation Life 455- Conger v. G. T. R. Congreve v. Evetts, IX, 424. Conmee v. C. P. R., VI. 403, 408. Conmee v. C. P. Ry., \'II, 1O5, 166, 167. Connan v. Connark v Connell v. 32S. Connecticut Mutual Life Ins. Co. v. Moore, VII. 196. Connor v. Douglas, I, 191, 342; IV, 419. Consolidated Bank v, Henderson, I, 222. Consolidated Bank t. Neilson, 661. Consumers' Co. v. Kissock, XII, Cook V. .'Mien, X. 89. Caldecott, T.W., 201. Clayworth, I, 129. Earl Rosslyn, HI, 431. Jenning, T.W.. 269. . Rogers, T.W., 202; XI. Cook V. Quombs, T.W., 22. Cook V Palmer, VIII, 410. Cook V. Cook V. Cook V. Cook V. Cook V, X, 445- 348. 3.W. 285. T. took V. I'riuliard, T. \V., 201 , XL 34«- C")k V, Smith, XI, 322. Cook V. Ward. VII, 88, 94. Cooke V. Berry, \'I, 248. Cooke V. Laninthe, \'I, 6y. Cookson V. I'ryer, T.W'., 202. Coole V. Braham, XI. 20(j. Cooley V. The Grand Tiunk Rv, I. 113. Coolidee v. Bank of .Montreal, II, 89. Cooper, Re, XI, 335. Cooper V. Crabiree, V, 85, 91, 102. Coojier V. Dixon, II, 99. Cooper V. Nias. VH, 125, 126. Coojier V. Watson, L\, 31, 152. C'onte V. .Macbeih. IV, 45. Cloth V. Jackson. HI, 5O0. Cope V. Rowland, IV, 2i(j. Co|ieland V. .Stanton, I. 157. Copin V, .Vdamson, I, 36. Coppord V. Harrison. II, 195. Cojiper Mines v. Fo.\, T. W, .yi : VII, 105. Corbett V. De Cantillon, XII, Corbett V. Johnston, IV, 463. Corbelt V. Radcliff. T.W,, 201. Corbett V. Steam Navigation Co., W., 229. Corby v. Gray, X, 442. Corcoran v. Witt, V, 112. Corlield v. Coryell. T.W., 224. Cork, etc., Ry. Co., Re, IX, 157. Cork and Bandon Ry. Co. v. Cazc- nove, III, 34. Corke, Ex i)ane. IX, 20. Corking v. .\lassey. V, 171. C'orley v. Roblin, II, 121. Cornish v. Abingion, T.W., 19. 7ji. (."ornish v. Accidental Insurance Co., X, 563- Cornish v. Niagara District Bank, X, 343- Cornisii v. Taimer, X, 88. Cornman v. The Eastern Counties Ry. Co., VII, 155. 159. Cornthwaite v. Frith, HI, 662. Cornwall v. Derochio. XII, 642. Cornwall v. Missouri. XII, 91. Cornwallis v. C. P. R., IX, 415. Cornwell v. Hawkins. HI, 35. Corochan v. Worwick, V, 102. Corporation of Bruce v. Croman, V. SO. Corporation of the City of Simcoe v. Street, VII, 25. Corporation of Hastings v. Wall, V, 91. m ', !• » . zvl CASES JUDICIALLY NOTICED. Corporation of Wcllaiid v. Buffalo & Lake llnrnii Ry. O.., 1, 287,^88. Corrigaii v. CnrriKaii, 1, 5'j. CorsiT V. Carlwriglit, IX, 456. Cory V. Cory, IX, J83. Cory V. (Jcrtckcii, IV, 305. Cory V. Scott, III. 153. Cory V. Yarinoutli & Berwick Ry. Co., V, 104. Cosscr V. Coiigli. XI. 348. Costa Rica v. ErLiiiKcr. VI, 195; VII. 4-'5. 427. .\2i). Cote V. Cli.uivcau. 111. 628. Costello V. Hunter, V, 247, 248. Cotes V. Michell, XI, 460. Cotcr V. Bank of England, III, 239, Cotswortli v. Bcttison, VIII, 410. Cotter V. Darlington, VII, 242. Cotter V. Sullierlaiul. I. 34-' I IV. 41S. 420. 400; VI. 428, 446. 447, 567. Cotlerell v. .\psey, IV, 437. < Cotterci, Ex parte, VII, 607. Cottcrell V. Stratton, X, 369. Cotterell v. Watkins, V, 209. Cotton V. Vansittart. T.W., 201. Cotton V. Wood, V, 3fi6. Coulson V. White, V, 99. Counihe, Cockhurn & Campbell, Re, I J I, 363; IV, 82. CounI avc. Re. VI, 122, 126, 133. 136, 13S, 139, 14.3- Countess of Meaford v. G. W. R.. X, ()30. County of Frontenac v. City of King- ston, XI. 133. County Life Assurance Co., IV, 6. County of Wentworth v. City of ir.aniilton, HI, 541. Coupland v. Braddick, II, 191. Cmirse v. Hiniiphrcvs. \'. 243. Court V. Holland. iV. 180. Courtney, Re, VII, 601. Cousins V. Bullcr. VII. 58, 60. Cousins V. Cousins, III. 535. Cousins V. Paddon. 11, 108. Couso V. Bond, III. 176. Coulter V. Lee. IV, 478. Coventry's Case, X, 203. Coverdale v. Cliarlton, IX. 231. 263. Cowan V. Braichvond. VIII. 100. Cowbridge Railway Co.. Re. V. 29. Cowburn v. Wearring. V. 31. Cowdell V. Neal. VI. 181 ; 'VII, 187. Cowell V. Colorado Springs Co., X, 4.10- Cowell V. Simpson. VII. 534. Cowic, Ex parte, T.W., 153. •203, for Cowjier V. Essex, VI, 199. 200. 204, 205, 209. Cowper Essex v. Local Board Acton, VII, 406. Cowyer v. Garland. X, 429. Cox V. Cox, X, 97, 105. Barker, XII, 21^7. Bishop, III, 123. Bockett, VII, 4^6, 428. Dolman, T.W., 275. Prentice, X, 7i. TuUoch, T.W., 107, 109. Thoiuason, VI, 458. Wright, \', 223. Coxhead v. Mullis, VII. 316, 452. Coxon V. G. W. Ry. Co., I, 160. Coxier, Re, III. 119, 124. Cr.'ifier v. The Metropolitan Rv. Co. VII, 156. 139. Craig V. Craig. II. 267; VIII, 4>0. Craig V. 'rcmpleton, VII, 7, JJ, 13;; IX, 414. Crandell v. Mooney. I, 240. Crane v. Craig. VIII. 35, 45. Crane v. Morris, V, 369. Cranstown, Lord, v. Johnston. I, 365 Crawcour, In re Robertson, II, 172. Cox V. Cox V. Cox V. Cox V. Cox V. Cox V. Cox V. Cox V. Bovd. Ill, 7- Bu'rwell, V, 398. Cocks, V, 51. Findley, IX, 99. Lundy, V, 2. 5, McLaren, VI. 264. Meldruni, TAV., 201. Sencv, Re, IX, 6^0. Willing. VI, r-^. Thornton, III. 43! ; V, Crawford v. Cr.'iwlord v. Cr.iwford v. Crawford v. Crawford \\ Cr.'iwford V. Crawford v. Crawford v. Crawford v. Crawshay v. 34S. Craven v. Tickell, T.W.. 283: VI, 38. Crears v. Hunter, VIII. 250, 252. Credit Foncicr v. Andrew, X. 117. Creed v. Fisher. V. 193. Creighton v. Chambers. I. 281. Crewson v. G. T. R., XII, 39. Crickett v. Dolby, III, 67. Crippen v. Ogilvie. I, 60, 129. Crisp V. Bunburv. II, 161. Croft. Re, VI, 574. Croft, In re, IX, 593. Croft V, London & N.-W. Rv. Co., XI, 114. Croft V. Peterboorugh. XII, 37. 426. Crofton V. Crofton. III. 150. Crofts V. Middleton. I, 203: IV. 28. Crooks V. Stroud, III. 643; VII. 599. Cropper v. Smith, VI, 3W Crosbv V. Crouch, T. W., 202: XI, 348. CASES JUDICIALLY NOTICED. xvii Cross V. Barnes, IX, yj. Cross V. Currie, I. 8.^ ; III, 400; IV, 440, 441. 44-'; VI. 34>. .544. .U7- Crossley v. Elswortliy, IX, 442. CrntluTS V. Mciiitcitli. XI, 568. Ciutty V. VrooiiKui, II, 870; \. 28J, _'S.^; VII, 7: !•'<• 408. 4()y, X, Danford v. Danfonl, Daniel y. Bond, \'I, Daniel v. Conlthred, .348. Daniel v. Cross, III, Daniels v. Charsley, Daniels y. Council of Buford. X, 300. Darby v. Cor|)oration of Township of Crowland. X, 4 D.'irby V. Crowland. \il, ,W- Darby v. Wliittaker, III. 560. D.irke v. M.irtyn, V. 146. D.'irker v. Furlong. X. 350. Darkin v. Darkin. V, ^\ 36. Darling v. Col'aiton, VIIT, 93. Darling v. Darling. I. 128, Darling v. McLean. I, 253. Darling v. Rice, I. 220; N'lIT. 170, 172. Darlow v. Bland. XI. 538. Darst v. Gale, XII, 7. Darthey v. Clemens, VI, 3^1. Darvill'v. Terry. T.W.. 196. Dask V. Van Klecck. VI, .13. Davenport \. Davenport. V. 97. Li8, 139. Davey v. Durrant, VI. 309. 310; \ 198. Davidson v. Dousrias. T.W.. 201. Davidson v. Gwvme. T.^^^, 269. Davidson v. Wood, V, 149. Davies v. C. P. R., VI, 5.3.> 561, Davies v. Davies IV. 365. Davies v. Ma'-"'. IV. 225. Davies v. Willi;ims. XI. 22. Davis v. Barrett. IX, .jo^. Davis V. Burrell, T.W., 48. Davis y. Busbv, X. 242. Davis v. Dcndy, IX, 17. Davis V. Davis. XI, 146. Davis v. Fdnnmds, III, 523. Davis V. Goodman, XI, 388. 102 III, xvin CASES JUDICIALLY NOTICED. I- )■*'■., Davis V. Kline, VIII, 511. Davis V. Leckie, III, 91. Davis V. Mure, T.W., 269. Davis V. AlcSherry, I, 301; VIII, 58. Davis \ . Otty, V, 171, 232. Davis V. Owen, T.VV., 108. Davis v. Peabody, XI, 467. Davis V. Pierce, V, 293, 295. Davis V. Shepstone, VIII, 53, 57, T^. Davis V. Sherlock, T.W., 108. Davis V. Spence, VII, 145. Davis V. Snyder, IV, 365. Davis V. Van Norman, V, 49. Davis v. White, III, 399. Davis V. Wickson, I, 141 ; X, 638. Davis V. Wickson, XII, 169. Davis V. Williams, VII, 223, 225, 227. Davison v. Duncan, T.W., 322. Davison v. Gent, T.W., 347. Davy V. Durant, XII, 71. Dawes v. Harness, XI, 583. Dav.'es v. Peck, IV, 191. Dawson, Ex parte, V, 237. Dawson v. Bank of Whitehaven, X, 583- Dawson v. Clark, VIII, 394. Dawson v. Dawson, V, 397, 411, 425, 427. Dawson v. Moffatt, IX, 564. Day V. Brownrigg, IX, 583. Day V. McLea, XII. 467. Day V. Smith. IX, 184. Deacon v. Gridley, VIII, 249, 251, 252. Deadmer, Re, VIII, 260, 264. Deamond v. Sutton. Ill, 187. Dean v. Alaley, III. 341. Dean v. Dalton. VIII. 399. Dean v. McCarty, XI, 33. Dean v. Ontario Cotton Mills, V, Dean v. Peel, VII, 223, 224, 225. Dean. Re, Cooper-Dean v. Stevens, \'III, 394. 398. Dean v. Ti-st, III, 54; IV, 21. Dean v. Whittaker. IX. 367. De Beauvoir v. Owen. T.W., 275. De Bernardy v. Harding. XI, 166. De Brits v. Hillel, III. 428. De Bussche v. Alt. XII. 277. Decouche v. Savetier, VIII. 358, 359. Deere v. Chapman. XI, 118. Deere v. Guest, V, 83, 82. 102. De Forest v. Bunnell, IV. 514, 521; VI, 583. De Forrest v. Leete, V. 9. Degg v. The Midland Ry., XI, 539. De Grave v. Mayor and Council of Monmouth, VI, 95. De Groot v. Van Duzer, V, 67. 68. De Roghton v. Money, III, 123, 461. Delaney v. C. P. R.. XI, 491, 552, 626. De la Preuve v. Due de Biron, V, 315. 316. De la Vega v. Vianna, IV, 398. Delegal v. Highley, T.W., 322. Deleverque v. JMorris, V, 9, 18. De Lisle v. De Grand, VI, 113, 114. Delobbel Flipo v. Varty, XI, 365. Deloraine v. Bro'vn, III. 342. Delisle v. Degrand, VII, 58, 60. Dempsey v. The People, VI, 142. Dempster v. Purnell, IV, 518. Denby v. Powell. Ill, 163. Dening v. Wise, VII, 210, 213, 214. Denn v. Diamond, VI, 43. Dennis v. Whetham, IX, 368, 370. Dennison v. Fuller, IV, 243. Denton v. Marshall, VIII, 212, 483. Denton v. Stewart, T.W., 379. De Ponthicu v. Pennyfather, IX, 257. Deposit Life Assurance Co. c. Ays- cough, XI, 583. Dcrinsy v. Ottawa, XII, 44, 426. Derry v. Peek. X, 75. Des Moines Street Ry. Co. v. Des Moines. IX. 256. De St. Martin v. Davis, VI, 32. Devagues v. Boys, V, 297. Dcvaynes v. Robinson, VIII, 35, 45. Deverill v. Coe. VI. 428, 447, 448, 449. 567. azfi; IX. 485- Dewalt V. Hughitt. Ill, 428. Dewar v. Mallory, III, 288. Dewey v. Baynton, T. W., 200; IX, 368. De Wolfe v. — . T.W.. 153; VI, no. De Wolfe. In re, T.W.. 207. De Wolfe v. Nabad. V, 369. Dickson v. Covert, IV, 57. Dickson v. Hunter. Ill, 31. Dickson v. Mutual Reserve Fund Life Association. X. 318. Digby V. Atkinson, T.W., 122. Diggle V. London & Blackwall Ry. Co., T.W.. 339. Dikes, Ex parte, V. 138. Dillon V. Ashwin, IV, 45. Dillon V. Cork Steam, etc., Co., VIII, 3.^6. 339. Dines v. Scott. Ill, 50. Dingman v. Austin. VIII, 348. Diplock V. Hammond. V. 222. Dixon V. Farrer. VII. 491. Dixon V. Paul, IV, 478. i! 1 CASES JUDICIALLY NOTICED. XIX Dixon V. Pyner, III, 5. Dixon V. Wilkinson, T.W., 153. Dixon V. Snarr, VIII, 132; X, 269. Dobree v. Eastwood, IV, 32. Dobson V. Groves, VII, 164, 166. Dobie V. Temporalites Board, III, 624; VI, 47. Dockstader v. Phipps, XI, 257. Dodge V. Perkins, VI, 39. Dodswell V. Jacobs, XI, 143. Doe V. Hicks, T.W., 88. Doe King's College v. Kennedy, VI, 245- Doe V. Patterson, V, 346. Doll V. Conboy, IX, 589. Dollins V. Wagner, XI, 266. Dolsey v. O. S. & H. Ry., VI, 555, 557. Dominion Bank v. Cowan, VI, 500, 502. Dominion Bank v. C jwaii, XII, 29. Dominion Bank v. Wiggins, XII. 495. Dominion Loan Co. v. Garland, XI, 108. Dominion Loan & Investment Co. v. Kilroy, X. 24. 455; IX, 133, 188, 549- Dominion S. Society v. Kittridge, III, 402. Dominion Savings, etc., Society v. Kilroy, VIII, 260, 262, 269. Domville v. Berrington, III, 6. Domville v. Lally, X. 152. Don v. Lippman, IV, 398; VI, 293, 294. Donald v. Suckling, III. 363. Donaldson v. Donaldson, IX, 614. Donaston v. Payne, VI, 554, 556. Donisthorpe v. Parker, IX, 399. Donnelly v. Hall, IX, 374. Donnelly v. Stewart, III, 91. Donohoe v. Hull, XI, 212. Donovan, Re, Wilson v. Beatty, XII, 311. Donovan y. Dennison, IV. 393, 395. Donovan v. Hogan. VI, 428, 448, 449, 567- Donovan v. Hogan, IX, 385. Doolan v. Martin. Ill, 574. Dooley v. Crist, III, 341. Doran v. O'Reilly. III. 599. Doty V. Miller, IV. 158. 162. Dougall V. Lang. T.VV., 249. Dougall V. Moodie. V, 346. Dougall V. Sandwich & Windsor, etc., Co., T.W., 361. Dougall V. Wilburn, IV, 87. Dougall V. Yager, VII, 600. Doughty V. Hope, VI, 570. Douglas V. Burnham, VI, 611, 120. Douglass V. Cooper, X, 184. Douglas V. Corbett, T.W., 83. Douglas V. Douglas, III, 55. Douglass V. G. T. Ry., VI, 555. 560; IV, 116. 133- Douglas V. London & N.-W. Ry. Co., IV, 240. Douglas V. Ward, IV, 129. Douw V. Burt, XI, 330. Dove V. Dalby, IV, 395. Dow V. Black, III, 620. Dowell V. Dew, T.W., 24. Dowling V. Harnian, III, 681 ; IV, 403- Downes v. Grazebrook, XII, 65. Downey v. Roaf, I, 194. Downing v. Butcher, T.W., 88. Downs v. Ellis, III, 327. Downs V. McNamara, III, 77. Dows v. Citv of Chicago, V, 38; VII, 475.' 476. Dowse V. Lewis, VIII, 553. Dowson V. Hardcastle, III, 532. Dox V. Day, VI, 39. Dox V. Postmaster-General, V, 176. Doyle, In re, T.W., 2. Doyle V. Lasher, IX, 86, 87. Doyle V. Lasher, XII. 410. Dozier v. Fidelity & Casualty Co., X, 548. Drake v. Martin, III, 55. Drake v. Mitchell, XI, 294. Drake v. Preston, IX, 218. Drake v. Sykes, X. 156. Dresser v. Norwood, VIII, 321. Drew V. Locket, X, 575. Drewe v. Lainson, XI, 526. Drinkwater v. Falconer, IV, 21. Drogheda Election, IV, 272. Drope v. Hamilton, VII, 242. Drury v. Macaulay, IX, 625. Drury v. O'Neil, IV. 228. Dryden v. Frost. XI, 370. Dublin & Wicklow Ry. Co. v. Black, III, 34- Dubois V. Kelly, III, 341. Dubort Exp., IV, 132. Duck V. Addington. VII, 313. Duckett V. Grover, XI, 304. Dudley v. Folliott, VI, 329. Dudley v. Warde, III, 341. Duear v. Mackintosh, III, 239, 532. Dufif V. Budd. X, 608. Duffy V. Graham, III, 655. Dufresne v. Dufresne, V. 239. W0A CASES JUDICIALLY NOTICED. Dugan, Ex parte, XII, 210. Duke V. Davis. X. 6,37 ; XI, 23. Duke V. Forbes. Ill, 507. Duke of Beaufort v. Glynn, III, 571. Duke of Newcastle, Re, V, 30. Duke of Norfolk's Case, VIII. 307. Duke of St. Alban's v. Shore, T. W., 269. Dulmage v. Douglas, V. 121. Duncan v. Findlater, XII, 425. Duncan v. North & South Wales Bank, X. 575; XI, 298. Dungey v. Angrove, III, 431 ; XI, 381. Dunlop V. Grote, XI, 295. Dunlop V. Lambert, I, 206. Dunn V. Grant. V, 289. Dunphy v. Riddle, V, 251. Dupleix V. De Roven, T. W., 279; VIII, 358. 359. Durgy Clement Co. v. O'Brien, VI, 277- Dutton V. Poole. Ill, 120. Dynes v. Bales, I, 6. 7. Dyose v. Dyose, III, 56. Eadie v. McEwan, II, 208. Earl V. Camp, III, 304. Earl Brandon v. Becher, VIII, 165. Earl Vane v. Rigden. VII, 10, 23, 668. Earl of Buckingham v. Hobart, IX, 396. Earl of Carysford. Re, V. 139. Earl of Chesterfield v. Bolton, T.W., 122. Earl of Chesterfield Trusts, In re, X, 97- Earl of Leitrim v. Emery, V, 138. Earl of Londesborough. V. 148. Earl of Lucan v. Smith, VII, 415. Earl of Winchilsea, Re. XII, 265. Earle v. Bellingham. VIII, 35, 38. East Elgin Case, II, 137, 146. East Ind a Co. v. Donald, I, 48. East London Waterworks Co. v. Bailey, T.W., 339. East Missouri v. Horseman, X. 298. East Peterborough Case. II, 142. East Toronto Case, II, 136. East Zorra v. Douglas. IX, 1/2. East of England Banking Co., In re, X, 102, 105. 197. Eastern Counties v. Broom. XII, 432. Eastern Counties Ry. Co. v. Brown, II. 254; T\'. IQ3, 456. Eastern & Midlands Ry. Co.. In re, X, 129. Ebbord v. Gassier. X, 571. Ebbu Vala Co.'s Case, X, 193. Edensor v. Hof?man, VIII, 480. Edgar & Central Bank, VI, 500, et seq. Edgell V. Francis. IV, 209; V. 19. Edinburgh Life Assurance Co. t. Al- len, I. 127. Edinburgh & Leith Ry. Co. v. Daw- son, I, 118. Edinburgh Ry. Co. v. Wauchope.VII, 134. I4I. Edinburgh Street Tram. Co. v. For- bain. VII, 338. Edison Co. v. Westminster Tram. Co., XI, 612. Edmonds v. Hamilton Provident Co., XI, 200, 250. F.dney v. Bcnliain. XII, 630. Edwards v. Bethel, III, 629. Edwards v. Brewer, VI. 275. Edwards v. Brown, XI, 102. Edwards v. Cameron's Coalbrook Co. IV, 201. Edwards v. Collins, II. ,222. Edwards v. Dingman. VIII, 35, 45. Edwards v. Edwards. VIII. 237, 558. Edwards v. English, VI, in. Edwards v. Farmers' Fire Insurance Co., V, 412. Edwards v. Glyn, T.W.. 198, et seq. ; XL 341. Edwards v. Harben IX, 87. Edwards v. Kerr, X, 343. fldwards v. Matthews. XII. 238. Edwards v. Midland Railway Co., II, 256. Edwards v. Wilson. T.W^. 365. Eggington's Case, XI, 333. Ehensperger v. Anderson, VI, 383. Elden V. Keddell, X, 180. Elderton v. Emmons. IV, 200. Elivel V. McQueen, V, 369. F.lkin V. Janson, III, 2. Elliott V. Beach, X, 333. F.liiott V. Beach, XII.' 499. Elliott V. Biette, X. 393. Elliott V. Buffalo & "L. H. Rv. Co., VI. 55S. S63. Elliott V. Davis. X. 205. Elliott V, Lord Minto, IX, 292. Elliott V. Philadelphia. IV, 4.=i8. Elliott V. South D. Ry. Co.. VI, 472. Ellis, Ex parte. V. 14=;. Ellis V. Abell, III, 364. Ellis V. Dellabough. VIH, 198. Ellis V. Hanilew. Ill, 77 ' IX. 469. Ellis V. Lvnn Rv. Co.. XI, ^v Ellis V. McHenry, VI. 30. 293: VIII, 102. 107. CASES JUDICIALLY NOTICED. XXI Ellis V. Midland Ry. Co., VIII, 467; IX, 633. Ellis V. Selby, VIII, 396. Ellison V. Ellison, III. 665. Elmer v. Creasy, IV, 56. Elmore v. Grimes, V, 369. Elmsley v. AlcKenzie, VIII, 511. Elsee V. Smith. VI, 264. Elsey V. Adams, II, 197. Elsey V. Oddfellows' Association, XI, 20. Elsworth V. Brice, III, 227. Elsworthy v. Bird, V, 375. Elvy V. Norwood, T.W., 275. Elwes V. Maw. Ill, 341. Elwood V. Bullock, XI. 230, 360. Elworthy v. Billing, III, 5. Emblin v. Dartnell. XI, 297. Emerson v. Brown, IX, 32. Emery & Barnett, Re, IX, 630. Emery v. Barnett, VIII. 483, 488. Emery v. Growcock, V. 209. Emery v. Wade. IX. 493; III. 560. Emery v. Webster, VII, 567, et seq. Emma, The, VII, 425, ct seq. Emma Silver Mining Co., In re, XI, 68. . Emmerton v. Matthews, VIII, 473, Emmons v. Crooks, IX, 399. Einmons v. Elderton, XI, 166, Empress Engineering Co., Re, III, 120; X. 474. Empriiigham v. Short, X, 119. England v. Watson, II, 218. English Channel S. S. Co. v. Rolt, yil, 88, 97. Eiiglish, Scot., etc.. Chartered Bank. Re, IX, 349. Ermatinger v. Ciugy. VI. 531. "Ernest v. Portridge, III, 572; VI, 155- Ernest v. W'eisse, III. 129. Errington v. Ayncsly, T.W.. 122. Errington v. Dnmblc. VII, 508. Erskine v. Adeane, II, 119; IV, 81; XI, 600. Erskine v. Van Arsdale. VII, 13. Esdaile v. Davis, T. W., 109. Esdaile v. Visser, VI. 351. European Central Rv.. Re. VIII. 119; IX, 71. Evans v. Edmunds. VI, 149. Evans v. Evans. VI, 217. Evans v. Harries. VI. sSr, 585. Evans y. Prosser, III, T62. Evans v. Roberts, X. zy. Evans v. Thomas, IV, loi. Evans v. Underwood, III, 215. Evans v. Walton. VII, 226. Evans v. Watkins, Ex. parte, V, 25. Evans v. Wright, V, 362; VIII, 417 et seq. Evelyn v. Lewis, X, 112. i'^ves. Re, II, 200. Eseleigh v. Purssord, T.W.. 196., Ewing V. Obaldistan, V. 282. Ewing — Orr — Ewing, III, 23; XI, 64. Ewing V. Toronto Ry. Co., XI. 81. Exhall Coal Mining Co., \'II, 604. Exon V. Russell, II. 201. Eyles V. Ellis, V, 387. Eyre v. Baldwin, XI, 6. Eyre v. Countess of Shaftsbury, II, 154- Eyre v. Hughes, IX, i''. Eyre v. McDowell. XII, 284. Eyre v. Winn-McKenzie, XII, 148. Eyster v. Hatheway. XI, 464. Eyston v. Studd. VII, 340. Eyton V. Denbigh & O. Ry. Co., X, 112, 118. Falcke v. Scottish Imp. Insur. Co., XII, 265, 278. Fallon, Ex parte. VII. 256, 261. Falls V. Lewis, IV, 28. Fair v. Mclver, XL 654. Fairbanks v. Great Western Ry. Co.. III. 212. Fairbrother v. Wodchouse, X, 581. Fairchild v. Holl, III, 155, Fairlee v. Fenton, I, 67. 68. 69. Fairlee v. Hastings, I, 179, 209; X, . 55- Fairman v. Ives. T.W., 184. Fairman v. White, VI, 534, 535. Fairthorne, In re, T.W., 153, 156, 207. Fanning v. Grcgoire. IX. 239. Farina v. Home. III. 434. Farmer v. Livingstone. T. W.. 386; III, 131, 233; V, 87, 88, 191. ■ Farmer v. Mottram, IX, 476. Farmers' & Traders' Loan Co. v. Conklin, III. 400; X. 415. Farquhar v. City of Toronto. I, 294. Farquharson v. Balfour, VII. 429. Farquharson v. Morgan. X, 395. Farr v. Sheriffe. V. 2. 4. Frirrar v. Farrars. XII, 65. Farrel v. London. VII. 141. Farrell v. Town Council of London, V. 50, 265. Farrell v. London, XII. 36. 426. Farrow v. Austin. XII. 223. Farwell v. Harding. XII, 265. Faulds v. Harper, XI, 553. m. xxu CASES JUDICIALLY NOTICED. Faulkner v. Daniel, IV, i8:. Faulkner v. Equitable, XII, 66. Faure Elec. Co., In re, XI, 643. Fawcelt v. Mothersell, VII, 340. Fawcett v. York & North Midland Ry. Co., VI, 556, SS7- Fay V. Smith, II, 284. Fazacharly v. Baldo, XI, 459. Fazackerley v. AlcKnight, T.W.. 202, Fazackerley v. Rogerson, IV, 308. Fearnside v. Flint, T.VV., 278; VII, 358. Fearson v. Mitchell, VII, 322. 372. Featherstone v. Fenwick. T.VV., 18. Fcather.stone v. Smith, I, 108. Febart v. Stevens, II, 57. Federal Bank v. Northwood, II. 382; X, 204. Fee V. Mcllhargey, XII. 623. Feehan v. Bank of Toronto, VI, 112. Felan v. McGill. IX, 162. Fell V. South. VI, 244, 245. Fellowes v. Gvvydyr, I, 48. Fellowes v. Hutchinson. VI, 264, 487, 494. Fellows V. Ottawa Gas Co., V, 115. Feltham v. England. V, 367, 378, 380. Fenelon Falls v, Victoria Ry. Co., Ill, 201, I. Fenn v. Bittleston, III, 363. Fennell v. Corporation of Guelph, X, 53S- Fenton, In re, T.W.. 153. Fenton v. Browne, II. 195. Fenwick v. Clark, V. 145. Fenwick v. Laycock, X, 170, 414. Ferguson v. Chanibrc. III. 416. Ferguson v. Ferguson, TV. 166, 133. Ferguson v. Kilty. III. 655. Ferguson v. Wilson. T.W.. 379. Ferguson v. Windsor, XI. 108. Fcrnor, Ex parte, V, 148. Ferral v. Alexander. T.W., 202. Ferrand v. Clay, XII, 74. Ferras v. Macdnnakl, \'II. 183. Fcrrier v. Colt-, IX, 559. Fcrrier, Re. V. 138. Ferris v. Cox, V, 223. Fettcrlcy v. Russell, V. 88, 93. 102. Few V. Backhouse. TI. 226. Fewin v. Lewis, V, 8a, 90. Field V. Hopkins, XII, 148, 152. Field V. Mc.'\rthnr, I, 220, 222, Field V, Mitchell, T.W., 141. Field V. Rice, VII. 513. Fielders v. O'Hara, III. 64; V. 141. Fields V. Bland. IX. 587. Fife V. Bousfield. IX. 216. Filbert v. Hawk, III, 167. Filder v. London & Brighton Ry. Co., IV, 491, 494. Filliel V. Armstrong, IV, 4. Filliter v. Phippard, XI. 75. Finch V. Finch, III. 326. Finch V. Finch, XII, 275. Finch V. Winchelsea, XII, 288. Fine Art Society v. Union Bank, X, 350. Finlay v. Bristol & Exeter R. Co., T.W., 339. Finlayson v. Mills, IX, 399. Finney v. Beesley, V, 346. Firth. Ex parte, V. 217; IX, 633. Fischel, et al, v. Townsend, I, 100, lOI. Fischer v. Halm, V, 346. Fischer v. Naicker, V, 225. 227, Fish V, Carnegie, III, 416, Fish V. Higgins, V. 218; VI, 498, 500, 506. Fisher v. Brydges, V. 34. Fisher v. Drewett, IV, 167. Fisher v. McFee, II, 191. Fisher v. Municipal Council of Vaughan, V, 50. Fisher v, Philadelphia, X, 306. Fisher v. Wilson, III, 315, Fishmongers v. Robertson, T. W., 339; VII. 105. Fitch V. McCrimmon, IV, 394; VI, 244, 249. Fitch V. Newberry, T.W.. 260. Fitzgerald, Re. V.' 138: VI. 188. Fitzgerald v. Fanconberge, V, 278, 279, 280. Fitzgerald v. Grand Trunk, III, 364. Fitzgerald v. Wilson, VII. 569. 514., Fitzgibhon v. Scanlan, XII, 221. Fitzherbert v. Shaw, III, 341, Fitzsinnnons v, Mclntvre, X, 399. Flagstaff & Co., Re. V. 166. Flagstaff Mining Co., In re, IX, 576. Flanders v. Roe, V, 315, Fleet V. Murton, I. 70. Fleming v, Manchester S. & L. Ry. V. 198. Fleming v. McNab. VT. 428, 576. Fletcher, et al. In re, T.W., 157. Fletcher v. Bulton, X. 509. Fletcher v. Peck. VIT. 379. Fletcher v. Rndden, X, 325, Fletcher v, Rylands, XII, 419. Fletcher v. Tavleur T.W.. 132, 133. Flight V, Bentlev, TIL 228. Flint V. Bird, V, 318, 328, Flint V, Howard, X, =;8o. CASES JUDICIALLY NOTICED. XXUl Flint V. Smith, IV, 138. Flint V. Walker, XI, 261. Florence Land & Public Works Co., Re, VII, 90, 95. Flower v. Allan, IV, 511. Flower v. Saddler, X, 286; XI, 178. Floyd V. Buckland, T.W., 24. Foley V. Canada Permanent Loan & Savings Co., Ill, 35. Foley V. Canada Per. L. & S. Co., XII, 257. I'lucker v. Taylor. VI, 53 1- Foley V. Smith, VI 155, 159. Folgar V. Cha.se, Iv, 31. Folkestone v. Brooks, IX, 337. Follis V. Todd. Ill, 571- Fonnereau v. Poyntz. Ill, 54. Fon.seca v. Alacdonald, VII, 365, 367. Fonseca v. Schultz. IX. 369. Foote V. Blanchard, VI, 35, 270. Forbes V. Limond, III, 662. Forbes v. Marshall. I, 361. Forbes v. IMason, IV, 277, 278. Forbes v. Michigan, XII, 621. Forbes v. Moffat, IX, 402. Forbes v. Smith, III, 185. Forbes v. Tanner, IV, 58. Ford, Ex parte, IX, 126. Ford V. Kettle. X, 416. Ford V. Lacey, VII, 55. 65. F'ord v. Lord Chesterfield, IV, 42. Ford V. Proudfoot, III, 13. Foreman v. Canterbury, XII, 425. Foreman v. The Municipality of Can- terbury, IV, 98. Foreman v. The IMayor of Canter- bury, IV, 98. Forest v. Manchester, etc.. Rv. Co., IV. 495. Forrester v. Campbell, V. 252. Forshaw v. Lewis, VII, .^28. Forster v. Taylor, IV, 37. 211, 218. Forster v. Wilson, XI, 655. Forsythe v. Bristowe, X, 427. Fort V. Clarke. I, 15. Fortune Co.. Re, V, 165. Forward v. Detlcr, II. 82. Foster v. Beall, VII, 18^, 388. Foster v. Derby, V, 1S8. Foster v. Donald, X. 152. Foster v. Farewell, X, 645, 647, 649, 650. Foster v. Hilton, XL 527. Foster v. Lansdowne, XII, 426. Foster v. Mackinnon. XI, 103. Foster v. Merchant. V. 139. Foster v. Reeves, IX. 635. Foster v. Reeves, XII, 102. Foster v. Smith, VII, 33, 38, 46, 47; XI, 608. Foster v. Taylor, V, 80; X, 168. Foster v. Van Wormer, VII, 600. Fothergill's Case, V. 387. Fouldes V. Willoughby, IX, 583. Foulkes V. Met. Dis. Ry. Co., I, 160, 162, 163. Fountain v. Boodle, T.W., 88. Fountain v. Caine, II, 154. Fountain v. McLaren, X, 244. Fowle V. Freeman, T.W., 23. Fowler v. C. P. R. Co., X, 664, 665. Fowler v. Churchill, V, 561. Fowler v. Fowler, XI, 107. Fowler v. Fowler, XII, 133. Fowler v. Garlike, VII, .396. Fowler v. Hendon, IV, 32. Fowler v. Lock, IX. 145. Fowler v. Pittsburgh Kail Co., IX, 432. Fowler v. Vail, I, 3; VII. 486; VIII, 100, 105, 106, T08, 109. 112. Fox v. Aloney. T.W., 108. Fox V. Nippissing Ry. Co.. X, 127. Foxcroft V. Devonshire, T. W., 202. Foxcroft V. Lister, T. W.. 24. Foxon V. Gascoigne, IX, 602. Foy V. The London. Brighton & South Coast Ry. Co., VII, 154. Francis v. Dods worth, V, 342. Franklin v. Calhoun, X, 119. Franklin v. Xeate, VI. 390, 393. Fraser, Re, VIII, 139, 141. Fraser v. Bunn, III, 157. Fraser v. Gladstone. V, 217. Fraser v. Levy, T.W., 198, 201. Fraser v. Lazier, IX, 8j. Fraser v. Pcndlebury, VII, 5, n; X, 4.?9. Fraser v. Welsh, I, r20. Fraser v. Wyckoff, IV. 59, 67, 162. Frayes v. Worms. VIII. lor. I'rederickslnirgh School Trustees v. Corporation of Fredericksburgh. ir, 121. Freehold Loan Co. v. McLean, IX, 72; X, 19:;, 393. Freeman v. Cooke. T. W., 19; IV, 365. Freeman v. Cox. X. 152. Freeman v. F;iirlie. I, 93: VII. 429. Freeman v. Moyses, VI, 458. 459. Freeman v. Pope, I, 304 ; V. 237, 240 ; VI. 66, 69. 7t, 320. Freeman v. Price, V. 367. 376. Freeman v. Rasher, IX, 559. Freeth v. Burr, VI, 382, 383. 384. 386. I: XXIV CASES JUDICIALLY NOTICED. in 'f:i' llC French, Re, V, 139. French v. Trewiii, T.W., 124. Frewin v. Lewis. T.W., 352; XI, 375. Fricht V. Schmidt, V, 173. Fricker v. Ea.stnian, 111, 672. Fricker v. Thomhnson, IX, 632. Friend v. Duke of Richmond, V, 90. Fricsen v. Smilt, X, 394. Frietas v. Dos Santos, VI, 531. Froniant v. Ashley, III, 601. Frost V. Hayward, IV, 515, 520; VI, 583. 584. Froude v. llengie, X, 98. Fruhaup v. Grosvenor, IX, 109. P"ry, Ex parte. X. 474. Fry V. .\lilligan, IX. 145. Fryer v. Bernard, XI, 53. Fuggle V. Bhmd. XII, 494. Fuller V. Taylor. VI, 413. Fulton V. Andrew. IX. 614. Furlong v. Carroll, XI, 23. Furlong v. Reid. X, 556. Furneaux v. Fotherby, IX. 557. Furness v. Caterham Ry. Co.. X, 120. Furnival v. Saunders. VIII, 132. Fusilier. Re, VII, 347. Gabriel v. Dresser. VI. 230, 485, 486. Gadd V. Houghtiin. I. 68. 69. Gadsden v. Barrow. \'I. iii. ^ Gaetler v. Eckersville, IX, 442. Gage V. Rohrback. X. 227. Gallini v. Lahore. T.W.. 124. Galloway v. London, II. 7i\ HI, 44. Gait V. Erie & Niagara Ry. Co., I, 287; X. 120. Gabon V. Emuss. Ill, 508. Galvin v. Prentice, XI, 170. Gandy v. Gandy. Ill, 121 ; X, 473, 478. Ganghan v. Sharpe, III, 668. Ganson v. Finch. I. 117; IX, 137. Gapp V. Robinson. V, 51. Gardner v. Brennan, II, 205. Gardner v. Chapman, T.W., 202. Gardiiier v. Gardiner. II, 159. Gardner v. Kloepper, IX. 587. Gardner v. London C. & D. Ry, Co,, IX, 10, 389. Gardner v. London. Chatham & Dov- er Ry. Co.. X. IIS. 1-20. Gardner v. Lucas. VI, 195. 458. Gardner v. Walker. VIII.' 189. Garner v. Briggs, IV. 446. Garnet v. McKewr.i. I, 33. Garnett v. Arni>,rong. IX. 401. Garrard v. Lord Lauderdale. Ill, 659, Garrett v. Roberts. IX, 633. Garry v, Wilkes, VI, 603. Garton v. G. W. R. Co., T.W., 229, Gas Light Co. v. Turner, IV, 358, 361 ; V, 67, 69. Gas Light Co. v. St. Mary's, Xil, 430. Gascoyne v. Smith. Ill, 217. Gaskin v. Balls, IX, 251, 584. Gates V, Smith, V, 424. Gathersole v. Smith, XI, 497. Gault V. Spencer, I. 117; IX, 137. Gauthreaux's Bail, Re, XII, 512. Gayley v. Price, X, 504. Geach v. Ingall, XII. 238. Gearing, In re. X, 24. Geddis v. Proprietors Bann Reser- voir, IX, 193, Geddis v. Prop, of Bann Reservoir, XII, 420. Gedye v. Matson, III. 127. Gee, In re, T.W.. 153. 156, 207. C;ee V. Mahood. VIII, 38. Gee V. Pearse, I, 322. (iell V. Viscount Curzon. IV, 403. Gelpcke v. Dubuque. VII. 136, 139. Gemmel v. Sinclair, IV, 416. General Credit & Discount Co. v. Glegg, II, 38; VI. 391. .593. 396. General Financial Bank. In re, VIII, 426; IX. 358. General Horticultural Co.. Re. VI, 358, 362; IX. 19. 214: XL 208. General Provident .Assurance Co., Re. IX, 346. Genoa. Town of. v. Woodruff, VII, 136, 139- George v. Millbanks. T.W.. 202. Georgetown v. Alexandria Canal Co., V. 405. Gerrard v. Frankel, XL 106. Ghent v. McColl, VI, 297, Gibb V. Murphy, 11. 88. Gihbins v, Chadwick. XL 307. Gibbon V. McMuIlen, V. 80 366. Gibbons v. Board of Management N. E. Met. Asylum. T.W., 23, Gibbons v. Darvill, IX. 443. Gibbons v. Pepper. T.W^. 77. Gibbons v. Spalding, T.W.. 188. Gibbons v. Wilkesbarre. XI. 81. Gibbs V. Guild, XL 304. Gihhs V. Pike. VIII. 55. 59. Gib1)s V. Rumscy. VIII. 393. .395. Gibbs V. Sontham, IV. 426, 428, Gibbs V. The Mersey Docks T.. IV, 100. Gibbs V. Trus. of Liverpool Docks, IV. 95. 11 'i\% m!' CASES JUDICIALLY NOTICED. XXV Gibson v. Boyd, X, 343. Gibson V. Bolt, III, Oo. Gibson v. Bruce, T.W., 202. Gibson v. ilolland, I, 297. Gibson v. Mayor of Preston, IV, 98. Gibson v. Ottawa, \'l, 93, loi. Giftord V. Whittaker, III, J23. Gilbert v. Endeam, IX, 339, 541. Gilbert v. Gignon, III, 555. Gilchrist v. Ireland, Re, VI, 307, 308. Gildart v. Gladstone, IX, 267. Gildersleeve v. Cowan, VI, 597, 598. Gildersleeve v. McDougall, I, 104. Gildersleeve v. The People, IV, 519. Giles V. Fauntleroy, I, 353. Giles V. Grover, 111, 258. Giles V. Kenning, IX, 33. Giles V. McEwan, XI, 189. Gill V. Manchester Ry. Co., I, 160. Gill V. Scrivens, V, 61. Gill V. Wilson, XI. 525. Gillaume v. Adderly. Ill, 54. Gillespie v. Grover, III, 100. Gillies V. How, II, 112. Gilnuin v. Mills, IV, 191. Gilmour v. Tiipple, III, 333. Gingell v. Purkins, II, 260. Girardy v. Richardson, \', 67. Girand v. Austin. VI. 62. Girdlestone v. Lavender. X, 159. Girvin v. Grepe, II, 56. Gillis V. G. W. R. Co., II. 9- Gladman v. Plunmier, III, 230. Glannibanta, The, X. 35. 358. Glannihanta, Re, XII, 556. Glass V, Grant, XI, 142. Glass V. McDonald. VII, 184, 187. Glass V. Munsen, VI, 391. Glassbrook v. Richardson. IV, 367, 3,72. Glazbrook v. Gillatt. X, 634- Glazebrook v. Woodrow, T.W., 120. 269. Glazcbrook v. Woodrow. IX, 115. Glengal v. Barnard, T.W., 23. Gleiigarry Case. II. 136. Gleiinie v. Imri, \T. 531'. Gletitworth v. Luther, IV. 167. Globe New Patent Iron Co., In re, IX, 576. Glyn V. Soares, \II, 430. Glynn v. Rank of England. XII, 449. Glynn v. Thorpe. IV. -,17. Goddard v. Foster. VI. 39. Godard v. Grav, I. 36; VII, 456; VIII. 102, III. Godfrey v. Dalton, V. 208. Godfrey v. Harrison, VIII. 346, 348. (jodfrey v. Watkins, IX, 17. Goft V. Great Northern Ry. Co., IV, 456. Goff V. Lister. VII, 384, 385. Goff V. O'Conner, III, 340. Goggin V. Kidd, XII, 180. Goldham v. Edwards, I, 120. Golding V. Wharton, II, 181. Goldschmidt v. Marryat, VI, 223. Goldsmid v. Innbridge, T.W., 356. Goldsmith v. Rus.-,ell, VI, 607. Good V. Fogg. XI, 118. Goodday v. Sleigh, II. 193, 195. Gooderham v. Toronto & Nipissing Ry. Co., X, 127. Goodesson v. Nunn. T.W., 269. (joodeve V. Manners, III, 661. Goodfellow V. Rannie, VIII, 45 Goodland v. Burnett, III, 55. Goodman v. Blake, VI, 299; VIII, 22. Goodman v. Harvey, I, 84. Goodman v. Pocock, II. 229. Goodnoan v. Savers. VII, 167, 168. Goodrich v. Yale, II, 229. Goodrigiit v. Swymmer, T.W., 348. Goodson v. Brooke, X, 672. Goodson V. Richardson. V, 83, 91, loi, 102, 103. Goodwin v. Robarts, VIII, 588, 597. Goody v. Penny, HI. 543. Gooden v. Cheltenham Ry. Co.. VI, 415- Gordon v. Elliott. V. 40. 293. Gordon v. Gordon. \'lH. 45. 46. Gordon v. Gilfoil. VIII, 195. Gordon v. Young. T.W.. 201. Gore v. Goston. HI, 523. Gore Bank v. Eaton. I. 256. Gore Bank v. McWhirter, I, 256. Goring v. Cameron, XI, 257. Goring v. London Mutual Fire In- surance Co., X, 662. flosbell v. Archer. XI. 167. Goslin v. Veley. VI. 43. Cioslin v. Wilcock, VI. 264. Gosnell v. Toronto Ry. Co., X. 483. Gosnell v. Toronto Rv. Co., XI, 81. Goss V. Neale. T.W.." 196. Goss V. Nelson, III. 215. Gossett v. Howard, HI, 114. Gottwalls v. Mulholland. T.W., 192. 200. Gough V. Bench. H. 289. Gough V. Davies. HI. 126. Gough v. Farr. T.W.. 133, Gould V. Burritt. I. 194. Gould V. Robertson. HI, 662. m XXVI CASES JUDICIALLY NOTICED. M .1 'I \ EM Goulday v. Duke of Somerset, III, 560. Goulding v. Deeming, VI, 502. Governor of Bristol v. Wait, IV, 461. Govett V. Richmond, IV, 365. Govett V. Richmond, XII, 30J. Gowans v. Chcvrier, IX, 187. Govvenlock v. Ferry, XI, 365. Gowland v. Garbutt, VI, 542. Gowland v. Garbutt, VIII, 190, 193. Grady v. Hunt, X. 244. Grand Junction Ry. Co. v. Corpora- tion of Peterboro, II, 17. Grandin v. Maddams, T.W., 188. Graham v. Bishop of Exeter, VII, 340. Graham v. Campl)ell, XII. 220. Graham v. Chahners, VII. 385. Graliam v. Chapman, T.W.. 202. Graham v. Connell, V. 61. Graham v. Devlin, VII, 600. Graham v. Furber, T.W., 201, 202. Graham v. Harrison, VIII. 101. Graham v. Heman, XI, 70. Graham v. Tomlinson. X. 393. Graham v. Williams, X, 518. 521. 523. Grand River Co. v. Wilkes. XII, 455. Grand T.unk Rv. Co. v. McMillan, X. ID. Grand Trunk Ry. Co. v. /ogel, X, 11. Grant v. Baggs. XI, 477. Grant v. Banque Franco Egypt ienne, IV, 403. Grant v. Cadwell, X, 76. Grant v. Dunn, I, 171. Grant v. Easton. VII. 455. Grant v. Eddy. XI, 48. Grant v. Ellis. T.W.. 275. Grant v. Gilmour, I. igo. Grant v. Hamilton. IX. 380. Grant v. Kelly. XI. 464. Grass v. Austin. IX. 425. Graves v. Hicks, VIII, 44. Graves v. Key. X. 610. Gray v. Liverpool Ry. Co., V, 99, loi. Gray v. Hatch. VIH. 403. Gray v. Hill. XI. 167. Gray v. Johnson. HI, 147. 'Gray v. Stanion. IV, 483, 484 ; X, 509- Gray v. Turnbull, I. 281. Gray v. Wooden. VIII. 396. Great Britain Steamboat Co.. Re. V, 228, 232. Great I.uxembourg Ry. Co. v. Mag- nay. VIT, 107. Great Northern Railway v. Inett,VII, 265; XI, 449. Great Northern Railway v. Mossop, VII, 192. Great Northern Railway Co. v. Shep- herd, I, 352, 354- G. N. W. etc., Co. v. Sprague, IV, 431- Great Western Coal Consumers' Co., VII. 256. Great Western Ry. Co. v. Blake, T. VV., 259. Great Western Ry. Co. v. Braid, VIII, 55, 65. Great Western Ry. Co. v. Goodman, I. 160. Great Western Ry. Co. v. Hodgson, X, 372. Great Western Rv. Co. v. Jones. VI, 284. Great W^estern Ry. Co. v. Warner, VI, 197, 198, T99, 203, 207, 208. Great Western Ry. Co. v. Willis, I, 209. Greeley v. Federal St. Ry. Co., XI, 81. Greer v. Young. IX, 602. (ireen v. Austin, XI, 527. Green v. Bartlet, IV, 59, 62, 63. Green v. Bartram, T.W., 82. Green v. Biddle. V. 40?. Green v. Braddyll, III," 186. Green v. Bradfield. T.W., 201. Green v. Green, V, 99; XI, 18. Green v. Handcock, VIII, 336, 339. Green v. Haskell, IV, 518. Green v. Humphreys. XII. 379. Green v. London General Omnibus Co.. Ill, 28. Green v. Lucas. IV, 188, 162, 165, 170. Green v. Penzance, VI, 611; VIII, 142. Green v. Rutherford, III, ^jt,. Green v. Sevin. HI. 269. Greene v. .St. John & Maine Ry. Co., T.W.. 263. Greenhalgh \. >[. & B. Ry. Co., VI. 412. Greenizcn v. Burns. X. 398. Greenough v. McClelland. I. 255. Grcenough v. Walker. III. 167! Greenway v. Adams. T.W.. 379. Greenway v. Hindley, III. 222. Greenwood v. Algcsiras Ry. Co., X, 146. Greenwood v. Greenwood. IX. 616. Gregg V. Wells. T. W.. 10, 73; IV. 36-,: IX. 555. Gregory v. Dnidgc, III, 227. 1 < ,k'i CASES JUDICIALLY NOTICED. XXVll Gregory v. Thomas, T.VV., 88. Gregory v. Williams, III, 120; X, 474. 481. Grenare v. LeClerc Bois Valen, X, 170. Greneliffe v. W. Dyer, VI. 329. Greville v. Stultz. VII^ 486. Grice v. Sliaw, IX, 399. Grier v. Grier, T.VV., 226. Grierson v. Ontario, XI, 224; X, . 535- Grieve v. Molsons Bank, X, 65. Grieve v. Smith, I, 255. Griffin v. Coleman, VI. 254. Griffin v. Patterson, I. 223. Griffin v. Patterson, VIII, 172. Griffin v. The Great Western Ry. Co., I, 207. Griffin v. Weatherby, I, 29J, 297 ; X, 200. Griffith, E.x parte, VIII, 178; XI, 349- Griffith V. Gidlow. XI, 539. Griffiths V. Hamilton, X, 185. Griffith V. London & St. Catharines Dock Co.. V. 372, 378. Griffith V. Ricketts, III, 661. Griffith V. Taylor, IV. 319. Griffith V. Ward, V. 54. Griffith V. Young. XI, 169. Grigg V. Arrott. IX, 405. Grill V. The Gen. Iron Screw Collier Co., VIII, 82. Grimo'dhy v. Wells, XII, 241. Griinstone, Ex parte, V. 138. Grin \-. Wcissenberg School District, VII, 13. Grocers Co. v. Donne. XII. ."25. Groom v. Rathhone. Ill, 604. Gross, Re. Ill, 259. Grove v. Price, V. 144. Groves v. Blake, III, 440. Groves v. Groves, V. 2'54. Grubb, Ex parte, T.W., 15^. Guard, Re, VIII, 402, Guardians of Hertford Union v. Kimpton. X, 680. Guardians of West Ham v. Ovens, IX, 438. Guelph v. The Canada Co., Ill, 201. Guest V. Cowbridge Ry. Co., V, 29. Guest V. Poole, etc.. Ry. Co., XI, 93. Guildford v. Sims. VT. 20. 21. Gummerson v. Banting. T,W.. 26. Gunary v. Bayard. II, 145. Gunn v, Adams, HI, 660. Gunn V. Bursress. IX, 85. Gunn V. ^IcPherson, X, 645. Gunter v. Halsey, T.W., 22, 24. (juriiey. Ex parte. X, 474. Gurney v. Gurney, IV, 329; VIII, 480. Gurney v. Small, IX, no. Guy V. Churchill, IX, 604. Guy V. Pearkes, IV, 75. Guyard v. Sutton, VI, 326. Gwynney v. McNab, II, 205. Hadfieid's Cash Co., X, 194. Hadley v. Baxcndale. T.W., 133, 137. 'Hadsoli v. Batxer, VII, 455. Hadley v. McDougall, I, 93. Hafiford v. New Bedford, IV, 453, 457, 458. Hagarty v. Squire. I, 70. Hagel v. Dalrymple, VI, i, 4, Haggard v. Pelicier, IX, 292. Haggart v. Scott, I. 231. Haigh V. North Bierly Union. VI, 88, 99. Haigh V. Burley Union, T.W., 339. Haigh V. Haigh, III, 262. Haigh V. Kaye, V. 227. 231, 236. Haigh V. North Brierly Union, II, 319. 320: IV, 106. Haigh V. Paris, V, 316. Haight V. Munro, IX, 82. Hainci' v. Iowa Legion of Honor, XI, 20. Ilaldane v. Bcauclerk, XI, 260. Haldenby v. Spofforth. VIII. 45, 46. Haldimand Election Ca?e, X. 271 ; XL 563. Halford v. Cameron's Coalbrook Co., IV. 201. flail. Re. IV. 300; VI. 122, 123. 132, 138, 141, 393. flail V. Allnutt. T.W., 198; XL 350. Hall V. Armour. TIL 599. Hall V. Ashurst. T.W.', 207, flail V. Badden, XL =;24. Hall V. Bainbrideo, ITT. 445. Hall V. Baker, IV. ^42. Hall V. Brown, IV. i^i. Hall V. Ca;:enove. T.W.. 269. Hall V. Curtain, Re. VII, 446, 448; X. 40T. Hall V. Ewart, HI. 2;. Hall V. Earquharsnn AT. ■?6, 428, 448. Hall V. Fearnlev. T.W.. "jl. Hall v. flardv. "\'L 37;. Hall V. Hazlett, IX, 58r Hall V. Hill. VTI, I. 9r : VIT, 508. 509. 514; I\^. 418. 420 . Hall V. Laver. IT, 298; IV, 24:. 242. m-'u k^ < If I ZXVIU CASES JUDICIALLY NOTICED. ■'I A Hall V. Mayor of Swansea, VI, 95, 98. Hall V. Merrick, V, 116; XI, 103. Hall V. Odbcr, T.W.. 279. Hall V. Park, IV, 228. Hall V. Salon Omnibus Co., T, VV., 202. Hall V. Wallace, T.W., 199. Hall V. West, T.W.. 188. Hall V. Wethercll, III, 235. Hall V. Winchfield, IV, 2S0, 517. Hall V. Wright, T. W., uj; I, 258; IV. 155. Hallani v. Runder, V, 422. Hallas V. Robinson. IX, 426; XI, 185. 505- Hallett's Estate, Re, IX. 22. Halliday v. Ilolgate. VI. 389, 392. Hallock V. Wilson, I. 21. Halsey v. Whitney. III. 664. Halsey v. Rapid Transit St. Ry. Co., IX, 265. Ham V. Ham, III, 295. Ham V. Missouri, V, 414, 425. Hamber v. Roberts, VII. 246. Hambridge v. Dc la Crouce, II, 299. Hambrook v. Smith, IV, 58. Hamer v. Sharp, IV, 172. Hamill v. Lillcy, XII, 311. Hamilton v. Ball, V, 234. Hamilton's Case, IV, 281. Hamilton v. Crainger, \'. 67. Hamilton v. Eggleton, \'I, 567, 570. Hamilton v. Harrison, II, 305; V, 211, 216, 218: IX. 425. Hamilton v, Houghton, II, 207. Hamilton v. Marks, X, 88. Hamilton v. McDonald, VIII, 363, Hamilton v. McDougall, V, 260. Hamilton v. Nott, XI, 326. Hamilton Provident Society v. Gil- bert. II, 260; IV, 137, 377. 378, 388, Hamilton \-. Royce, V. 279. Hamlyn v. Bettjrley. V, 216; VI, 243. Hamlyn v. Crown Accidental Insur- ance Co., X, 550. Hamlyn v, Lee, X, 1 19. Hammers v. Dole, XII, 10. Hammersmith & City Railway Co. v. Brand, II, 241 ; Vl, 197, 199. 202. Hammond v, Howard. IV, 178, 187, Hammond v. Schofield, VII, 566, 568. Hamiewinkle v. Georgetown, Vll, 475. 477- Hampden v. Wallis, I, 370. Hampson v. Brandwood. XII, 222. Hanbury v. Hughes, VII. 106. Hancock v. Lablachc, IX, 498. Hancock v. Mcllroy. VHI, 338. Hancock v. Smith, IX, 22, 214. Hands v. Law Society, VI, 21, 24. Maner v. Gill, V, 133. Hanford v. Artcher, IX, 87. Hanner v, Amelius, II. 42. Hannah v. Wyman, IV, 277. Hanover v. Schultz, IV, 49. Harbridge v. Wogan, XI, 107, Harbottle v, Poolcy, VI. 410. Harcourt v. Fox. HI, 275. Hardcastle, Re, III. 146. Harding v, Cardiff, XI. 235. Harding v. Edge, III, 465; IV, 444. 446. Harding v. Harding. XI. 370. Harding v. Metropolitan Ry. Co., III. 560. Harding v. Pingey, IX, 51, Hardv v, Ryle, T.W., 2. Hardwick v. Wardle, VIII, 165. 167: IX, 34. Harford v. Carpenter, T.W^, 18. Hargrave. Ex parte. VII. 258. Hargrave v. Hargrave. V, 292. Hargrcaves v. Scott. III. 555. Ilarington v. Haggart, X, 190. Harkin v. Rabidon. I, 6; VII, 4/8. Harland v, Binks, III, 661; VIII, 181. Harley v. Moon. Ill, 57. Harlock v. Ashberry. XI, 544. Harman v. Fisher, T.W., 191, 195. Harmon v. Harmon, X, 288. Harman v. Tappender, III, 25. Harpham v. Shacklock. XII, 220. Harold v. The Great Western Ry. Co., VII, 155. 159. Harold v, Simcoe, IV, 89, 95. Harpel v, Portland, XI, 95. Harper v. Carr, HI, sii. Harper v. Luffkin, VII, 228. Harper v. Patterson, III, 665. Harper v. Scrimgeour, V^I, 191. flarrinton v. Fall. VIII, 83. Harris v. .Aaron, XII, 220. Harris v. Baker. XII, 425. Harris v. Beauchamp. XH, 402, Harris v. Butler. VII, 224, 226. Harris v. City of Winnipeg, VI, 91. 94. Harris v. Commercial Bank, IX, 85. Harris v. Dingman, T.W., 78. Harris v. Judge, X, 637. Harris & .Sons v. Judge. XI, 23. Harris v. Meyers. Ill, 171, Harris v. Nobles, XI, 80. CASES JUDICIALLY NOTICED. XXIX »8. 38. 14- I, 24. [V, 444, ^y. Co., 65. 167; [I, 478. ; VIII, 195- 220. :rn Ry, )i. fQ2. 16. VI. 91. IX, 85. Harris v. Mudic, IX, 495. Harris v. Perry, II. 277, Harris v. Peitherick. IV. 158. 162. Harris v. Quinn, I, .^ ; VIII, 102, 107. Harris v. Rankin, V, 231;. 282, 288; IV, 358. ,r'-'; XI. no. Harris v. Rankin, XII, 520. Harris v. Rickets, T.W.. luS. Harris v. Robinson, VI, Harris v. York, X. 87. Harrison, Re, V, 263. Harrison v. Baiky, III. Boitenheim. Boydell. V. Fane. V, 367, 376, Harrison, XI, 56. Tlie Mavor, etc. 148. V. V. V. V. V. 15.1- 7, 146. 148. Harrison Harrison Harrison Harrison Harrison Southampton. Vtll. 165. Harrison v. Wanlle, IV. 53. of Hart Hart Hart Hart Hart Hart Hartley Hately v. Hartley v 1 lartley v Hartley v V. V. V. V. V. V. Denny. II. 215. McQucsten. IX. 403. Reynolds. II, 267. Ruttan. IX, 320. Swain, VI. 149. Tulk. I. 369. V. Hannan, II. 162: III. 385. Merchants Co., XII, 311. Moxham. IV. 344. IV, .•\s- 202 ; O'Flaherty. X. 5S1. Wilkinson, V. 116. Hartmount v. Foster. IV. 235. Hartnall v. Ryde Commissioners, 89. 96. 99. Hartnett v. Canada Mutual Aid sociation. X. 662. Hartsliorne v. Slodden. T. W XI. 348. Hartv V. Applebv. I. 28S, 280. Harvcv v. Roomer, IT. 87, 88. Harvev v. BrvdRos, T.W.. j8. Harvey, v. C.P.R.. in, S3; VTII, 61. Harvev v. Crovden, etc.. .\utliority. XI. 147. Harvey v. Johnston, III. 385. Harvey v. "Pocock. T.W.. 30. t40. H.'.rvey v. Smith. VII. 42; XI. 5. Harwich Case, XI, .^62. Harwnod v. Baker. IX. 616. Hastings. Ex parte, V, 138. Hastings v. Whitley. T. T20. TTasler v. Lcmoine. TX. 5^4. Hatch V. Buffalo. VII. .^74. 228. X. Hatch V. 344. Hatch V. Hiurall V liavelock Searles. HI, 40S: 476; VI. 341 Skelton, Griffith, IX. VT 401. V. Geddcs, T.W., 269. Hawes v. Curtis. X, 253. Ilawkes v. Leader, V, 230. Hawkeshaw v, Dalhousic District Council, V, 129, 2(j8. llawksley v. Bladshaw. II, 216. Hawkins, Re, \'I, 297. Hawkins v. Alder, I. 281 ; IV, 466. Ilawkins v. Barney, V, 406. Hawkins v. Gathercole, \'II, 304, 340, T,^2\ IV, 176. Ifawkins Hill Cn. v. Want. XII, 311. Hawkins v. Hoffman. I, ^^:i^. Ilawkins v. Municipal Council of Huron and Bruce, II, 287. Ilawkins v. Paterson. VI, 297. Hayden v. Davis. V, JJ, 76. H.ayden v. Foster, X, 222, 2,38, 256. Haydock v. Stow, IV, 163, 172. Hayn v. CvUiford, I. 160. Hays V. Younglorc. \'I. 264. Haythorn v. Bush, VIII. 410. Hayward v. Phillips. XI. 177. Hay ward v. Leonard, IX. 470. Haywood v. Bennett, IIF. 638. Hazlewood v. City of Buffalo, V, 38, 39- People, etc., Ry. Co.. XI, Hazell \ 81. Hcainan Heane v Heap V. Heard v V. Scale, I. 141 ; II, 12. . Rogers. I. 179; X, 610. Parrish. XL 279. . Pilley, I. 9, 10. Hcarfl V. \\'adham. T.W., 125, 269. Hearle v. Grcenbank, HI, 69. Heath v. Percival, III, 126. Hehh's Case. VII. 597. Hehhlethwaitc v. Peevcr. XI, 542. Hechler v. Forsvth, XII. 122. Hcckley v. Banbock. TIL 85. Heckman v. ATackin. TIL 248. Heckman v. Mcssinger. IV. 76. Tiector v. Glasgow. XTI. 8. fledley v. Barlow. T.W.. 326. Hedley v. Lapa.ge, V. 70. Heenan v. Evans. XL ^25. Heffield v. Meadow. Vtl."79. LTcilhutt V. Hickson, XII. 241. Helm V. Crossin. VITI. mi. Helps V. Eno. T.W.. 2. " Helyear v. Hawk. X. 55. Hemings v. Pugli. \'I. 531. Hemingway v. Fernande;'. IV. 241, 242. Hemnu'ng v. Trencrv. IT. 2S3. Hemp V. Garland, X, 42S. Hemphill v. McKenna. VI. 410. 4n. Ilenchett v. Kingston. XL 532. XXX CASES JUDICIALLY NOTICED. (6 IkiuKisnii, Re, VI, Jii, J14, 218, 220: \111, 101, loj, 10.5, 105, 113. HcikIltsoii v. Australi;in Royal Mail Slcam Navigation Co., 1, 345; T. Henderson v. Bank of Hamilton, XI, 48. Henderson v. Cotter, IV, 478. Henderson v. Kelly, X, 474. Henderson v. Lloyd, T.W., 202. Henderson v. Midland Railway, II, 256; IV, HM. Henderson v. Wall, HI, 191. Henderson v. Wilde, VI, 616. Hendricke v. Wood, XI, 53. Henfree v. Hroniley, II, 283. Henry v. Armstrong, VI, 67, 69. Henry v. Burners, HI, 13; VI, 445, 446. Heney v. Low, IX, 395. Henkie v. Royal Insurance Co., XI, 107. Henley v. Sopcr, HI, 599; VI. 211, 218. Henley v. Mayor of Lynne, IV, 95, 99. Hennerwinkle v. Georgetown, V, 38. Hcnnessy v. Myers, IV, 357. Henty v. Scliroder, IV, 240. Hepburn v. Patton, I, 329. Herbert, Re, and Gibson, VII, 172, 173, 180, 213. Herbert v. Darley, T. W., 109; IX, 32. Herbert v. Donovan, IV, 355. Herbert v. Park. II, 202. Hereford Case. II, 136. Herefordshire Banking Co., In re. X, 19s. 197- Herr v. Douglas, III, 611; VI, 297. Herrick v. Woolverton. Ill, 217. Herschfield v. Clarke, VII, 426, 427. Hessin v. Baine. I, 223. Hesketh v. Fleming. Ill, 186. Hesketh v. Ward, III. 233. Hessin v. Coppin. I, 108. Heugh V. Ciiamberiain. X. 329. Heward v. j\Iitchell, IX, 84. Hewer v. Cox. II, 306; IV, 422, 424. Hewitson v. Sherwin. Ill, 172; VI, 74. 76, 77. 80, 1 80. Hewitt V. Webb. VII. 427. Hewitt V. Morris, HI, 58. Hewlett V. Cruchley, VI, 264, 487, 494- Hext V. Gill. V, 99- Heydon's Case, VII, 339; XI, 376. Heywood v. Buffalo, VII, 475, 476. I liikiy V. Hun, IX, 480. I lickey v. Campion. V, 247. Hide v. Hide. XI 1. loy. Hiern v. Mill, X, 419- ilii.,'Kinbotliam v. Barton, III, 227. II iKKiHliDiham v. Moore, X, 398. liiggins Higgins liggms Higgins Higgins Higgms V. V. V. V. Brady, IX, 319. Frankis, X, 581, 582, 586. Higgins V. Manning. IX, 137. Moore, IV, 163. Pitt, HI. 505. Scott, T.W., 274. Senior, I, 70; HI, 443. lliggiiison V. Cowcs, II, 2S9. llilbert, li\ parte, \', 140. Hilhouse v. Davis, r.W.. 282. Hill. Re. VI, 22. 27, 398, 400. Hill V. Balls, VIII, 474. Hill V. Biggs, V, 83, 84, 109. Hill V. Bishop of Exeter, VIII, 244. Hill V. Boston, IV, loi. Hill V. Cumberland Valley, M. P. Society, V, 426. Hill V. Farnell. T.W., 198. Hill V. Gaunt, IV. 84. Hill V. Gomme. HI. 120. V. Halford. Ill, 215. V. Hill. I\', 520, 521. V. Long. VI i, 242. 245, 246, V. Lord Granville, VI, 411. Xcw River Co., XI, 80. Peel. III. 555. Hill Hill V Hill V Hilton Hill V Hill V Hill V. Reardon, HI, 129. Hill V. Ryan. IV. 478. Hill V. Tecumsetb, \'II, 249. Hill V. Walsingham, XI, 224. Hill V. Wilson. Ill, 326. Hillary v. Waller, V, 209. Hilliard v. Hanson, VIII, 92. Hiilhouse v. Davis. VI, 38. Hilyard, In re, T.W.. 153, 156. Hilton V. Fairclough. IV, 33. Hincks v. Lowerby, II, 268. Hind V. Whitmore. VI, 155, 156, 159, 160. Hindley v. Russell, HI, 630. Hinton v. Stevens. II, 222. Hirsch v. Coates. III. 293. Hiscox V. Batchelor, I, 345. Hislop V. McGillivray, VII, 235. Hitchcock V. Galveston, XI, 233, 3i.j, Hitchcock V. Humfrey. IV, 428. Hitchens r. Killkennut, III, 505. Hitchman v. Walton, IV, 180, 181. Hoare v. Lee, V, 363. Hoare v. Silverlock, T.W., 322. Hobbs V. Ontario Loan, etc., Co., XI, 200, 439, 523. CASES JUDICIALLY NOTICEU. XXXI II()1)1)S V. Sci>tt, \'II, (jo(). Jliilicon V. Tlicllii.soii, IX, 364. liudjjc V. Attoriicy-Guncral, II, 370; \'II, JO. lli.dne V. The Qiucii, II. 333, 350; 111, Cji; X, 5-28. I lodges V. County of Madison, IV, lOI. Hodges V. Croydon Canal Co., T.W., ^75. Hodges V. The Queen. IX, 158. Hodgins V. McNeil, I, 127, Hodgkinson v. Ilodgivinsoii, IV, 276, -77- 1 [o(lg>oii V. Bank of Upper Canada, I, 106. Hodgson V. Chelwynd, H, 226. Hodgson V. The East India Co., VI, 329. Hodgson V. York and Peel, XI, 224. Hogan V. Jackson, VI, 165. Hogan V. Southeastern Ry. Co., VII, 154- Hogg V, Graham, III, 632. Hogg V. Maguire, IX, 615. Hogabooni v. Graydon. XII, 410. Hogarth v. Latham, HI, 413; VI, .ML 345- Hoghton V. Hoghton, IX, 283. Hogue V. Curtis, II, 191. Holbird v, Anderson, T.W., 196. Hoibrook v. Cracroft, VI, 154. Holdcn V. Hayn, IV, 241, 242. Holden V. Waterloo, VI, 412. Hoi ford V. Phipps, XII, 222. Holgale V. Jennings, HI, 59. Holden v. Winslow, IV, 14. Holderness v. Rankin, T.W., 198. Holdridge v. Utica and Black River Railroad Co., HI, 498. Holland, Re. IV. 266; XI, 222. Holland v. Baker, VI, 374, m. Holland v. Cork Ry. Co., X, 122, 129. Holland v, Hodgson, HI, 289; IX, 9- ilolland V. Morley, V, 85, 86, loi, 103. Hollender v. Ffoulkes. X, 572. 1 Iliday v. Ontario Farmers' Mutual Insurance Co., II, 255. Holliday v. St. Leonards. XII, 425. Hollins V. Fowler, X. 380. Hollingworth v. Palmer, VII, 315. 357- Hollingswort! v. Shakeshaft, III, 129. Hollingsworth v. White, VIII, 178, 185. 186. iloliywooil V, Waters, VII, 384,3X8. l^Iulnian v. Jolm-on, I\', y] ; V, tx), /J. Holme v. (iufTy, T.W., 124. Holme V. (.iuy, VII, 312, 340. Holmes v. Kerrison, V'llI, 251. Hollier v. Laurie, IX, 40. Holmes V. Love, T.W., 202. linlmcs V. Millage, XII, 492. iiohnes V. Russell, T. W., 107; IX, 34. i^i. Holmes V. Tremper, 3, 341. llolroyd V. Ciarnett, V, 74, 80. Hoist V. I'ownall, VI, 278. . Holt V. Frost, X, 83. 91. Holt V. Jesse, XI, 146. Holt V. Mebbcrly, VI, 326. Holt V. Meddowcraft, V. 293, 294, 295 '• XI, 2O5. Holt V. Meddowcraft, XI, 265. Holt V. Rochdale Canal Co., V, 96. Holton V. Macdoiiald, HI, 63^. llolroyd V. Mar^hali. VI, ^bz; IX, Homer District Consolidated Gold Mines, Re, VII, 92. Ilomersham v. Wolverhampton Wat- erworks Co., T.W., 339. Hompsay v. Kenning, T.\V., 109. Hood V. Dodds, IX, 152. Hood V. Hood, XI, 369. Hood V. Phillips, II. 298; VIII, 190, 192; IX, 399- Hooker v. Leslie, H, 57. 1 looper. Ex parte, T.W., 24. Hcoper V. Hurley, II, 121. Hooper v. Cami)bcll. IX, 162. Hooper v. Christie. VIII. 340, 341. Hooper v. Gumm, VII. 429. Hooper v. Lane. HI, 536. Hoover v. Sabourin. X. 225, 236. Hope v. Fo.\, VIII, 352. Hopecraft v. Keys, HI, zz"]. Hopkins V. Craddick. V, 100. Hopkins v. Francis. II. 226. Hopkins v. G. W. Ry. Co., IX, 242. Hopkins v. Hashayne. I, 12. Hopkins v. Hopkins. V, 34, 239. Hopkins v. Logan. VIII. 250, 251. Hopper V. Burncss, HI, T]. Hopper V. Warburton. X, 395. Horford v. Wilson. IV. if)6, 169. 170. Hornick v. Romney, VIIT, 21, 24. Hornsey v. Monarch. XII, 608. Horseman v. Burke. V, 9, 13; VI, 375. 378. Horsford, Re. HI, 592. Horton v. McMurtry, XI, 165. XXXll CASES JUDICIALLY NOTICED. 1*1 If Ilorton V. Smith. IX, 403. Horton v. Westminster Improve- ment Commissioners. Ill, 672. Hosking v. Nicliolls, III, 54; IV, 21. iloskins. Re, XII, 220. Hoskins v. Phillips, II, 297. Hotham v. Eas'.. India. Co., T. W., 2S9. Hough V. Manzanos, I, 68. 69. Houghton V. Houghton, III, 167. Hovenden v. Lord Annesley, II, 369. Hovey v. Whiting, VHI, 142, 143: XI, 320. Hovil V. Pack. II. 316. Howard's Case. VII, 88. 94. Howard v. Bodingion, VII, 254, 583. Howard v. Rodington, XII, 195. Howard v. Brown, IV, 515, 520, 521. Howard v. Fessenden, HI, 340. Howard v. Harding, VIII, 198. Howard v. Howard, XI. 6. Howard v. Hudson, T.W.. 19. Howard v. Patent Ivory Manfg. Co., V, 308: VII, 88, 99. Howard v. Prince, VIII, 352. Howard v. Sherward, VII, 581, 587. 588. Howard v. Sherward, VIII, 315, 316. Howard-Padley v. Camphansen, HI, 191. Howden v. Haigh, HI, 505. Howe v. Hall, II, 289. Howe v. Lord Dartmouth, III, 58. Howe Machine Co.. In re. X. 571. Howe Machine Co. v. Walker. I, 1S5. Howe V. Smith. III. 321. Howell V. Bowers, VIII. 442. Howell V. Coupland. IV. 156. Howell V. Maclvers, I, 313. Plowells V. Landorc Siemen's Steel Co., XL 531. Howes V. Lcc, IX. 397. Howkens v. Bennet. IV. 44. Howkins v. Baldwin, VIII, S2. ^ Howland v. Dominion Bank, XII, 494- Howland v. Eldredge. XI, 570. Hoyland, etc.. Colliery Co., Re, IX, .146. Hoyt v. Vanalstyne, XI, 468. Huhhard v. Brown, IV, 13. Huhbard. Ex parte, VI, 390, 391, 393. Huhhard v. Jackson, XL 299. Hubbart v. Phillip, IT. 208. Huber v. Stciner. I. 3; VL 293, 294. Hubert v. Trchorne. T.W^, 23. Huckman v. Fcrnic. XII, 2;]^. Huddersfield Banking Co. v. Henry Lister, XI, 147. Hudson v. Robinson, X, 204, 208. Hudson Bay Co. v. Attorney-General, V. 308, 406. Hudson Bay Co. v. McDonald,V, 168, 169, 170. Pludson Bay Co. v. Rnttan, V. 170. Hudston v. Midland Ry. Co., I. 352. Huggins v. Coates, X, 429. Iluggin v. Tweed, II, 181 ; XL 261. Hughes, Ex parte, T.W., 207. Hughes V. Canada Permanent, etc., Society, I, 347- Hughes V. Chester & Plolyhead Rail- way, I, 91 ; X, 626. Hughes V. Lumley, XII. 393. Hughes V. Marshall, II, 135. Htighes V. Mayre, T.W., 153, 155. Hughes V. Rutledge, XI, 628. Hughes V. Trustees, etc., V, 91, 100. Hughes V. Twisden, VII, 116. Iluguet's Case, VI, 122, 134, 136. Hulett's Case, VII, 99, 106. Huling V. Plugg, HI, 167. Hull Dock Co. V. La T^larche. T. W., 359- Hull, etc.. Ry. Co., Re, IX, 214. Plume V. Cook, I. 60. Humfrey v. Gery, T.W., 275. Humphrey v. Dale. HI, 44. Humphrey v. Humphrey. HI. 56. Humphrey v. Jenkinson. HI. 540. Plumphrey v. Oliver. Ill, 466. Humphreys v. Kniglit. V. ,^22. Hunter v. Bowes, T.W., 282. Hunt V. Brewer, HI, i59. Hunt V. Hooper. XI. 609. Hunt V. ]\. Vrthur, VI, 260, 261. Hunt V. .\i(.rtimer. T.W.. 198. Hunt V. Priest. X. 119. Hunt V. Wimbledon Local Board. I, 347. .148; VI, 88, 8q, 93. 94. 09; IX, 597- Hunter v. Carrick, XI, 267. Hunter v. Daniel, IV, 482. Hunter v. Arountioy. X, 6;].\. Hunter v. Princess. HI, 77- Hunter v. Nockolds. T.W., 275. Hunter v. Sharpc. T.W., 326. Hunter v. Vanstone. VI. 148. Plunter v. Vernon. X. 485. Hunter v. Walters, XI, 103, Hurd v. Billinpton. T. 6; VL 433. Huntingdon v. .\itrill, IX, 298, Hurrcll V. Wink, IV. 463. Hurst V. Jennings. H. 311. ip- m w CASES JUDICIALLY NOTICED. xxxm Huson V. Tlie Township of South Norwich. X, 530, 535. 536. HiUcliins V. Chambers. V. ^63. Hutchins v. Scott, II. j86. Hutchinson v. Bernard. II. 169; VII, 488. Hutchins .n v. Collier, IV, 420. Hutchinson v. Gillespie, VI, 218. Hutchinson v. Guion, I, 212. Hutchinson v. The York, etc., Rv. Co., XI, 539. Hutchison v. Ilevworth. Ill, 295. Hutton V. Cruttwell, T.W., iq8. Hutton V. Whitchouse, HI, 186. Hu.xhani v. Llewellyn, IV, ^bj, S7~- Hyani's Case, VII, 606. Hyam v. Helm, III. 149. Hynes v. Fisher. VI. 410. 412. Hynes v. Smith, II, 210. Igguklen V. Terson, IV, 632. Ilderlon v. Ilderton, III, 187. Imeson, Ex parte. VIII, 596. Imperial Bank v. .Vdanison, VH. 142, ct seq. Imperial Bank v. Taylor, IX, 162. Imperial Gas Light Co. v. Broadhcnt. V. 104. Imrav v. Moganv. IX, 370. Inchbold V. W'citern N. Coffee Co., T.W., 125, 271. Indianapolis Rolling Mill Co. v. St. Louis, etc., Ry. Co., VII, 104. Ingate v. Austrian Llovds Co., 11]. 184. Ingham v. Primrose, VI, 340, et seq. Iriglis V. Afansfield, XH. 221. Inglis V. Usherwood. VI. 275. Ingram v. Ingram, \\ 274, 279. Ingram v. Taylor, III, 335; IX. 114. 1.87, 540. Ings V. London & S. \V. Ry. Co.. \T. 460. Likop V. Morchurch, IX, 562. Iiiman v. Rae, XII, 4 Imiell V. Newman, IX, 480. Innns of Court Ifolel Co., In re. VII. 89. 99- Ireland v. Berry. Ill, 23.S. Ireland v. Johnson, V, V^J- Irish, Re, VII, 7. 437. " I Irwin Irwin Irwin Irwin Irwin Ir ronsKle- V. V. V. V. V. vine V. . Re, XII, 303. Bank of Montreal, I, ,34. Bcynon, IV. aro. Harrington, HI, 14. Mont'han. IX, 128, 548. Wright. HI, 166. Mercer. IX. 104. Irvine v. Webster, IV, 357, 366, 371. Isaac, Re, VIII, 346. Isaac V. Belcher, IV, 143, Isenberv v. East & West India Co., V. 103. Jackson, Ex parte, XI, 432. Jackson v. Bank of Nova Scotia, XI, 314- Jack.son v. Beaumont, VIH, 210, 483. Jackson v. Bowman, IV, 377, 388. Jackson v. Gardener, II, 87. Jackson v. Hanson. IV, 55. , Jackson v. Lomas, T.W.. 202. Jackson v. Miller, IV. 485. Jackson v. Moncrieff, I\', 485. Jackson v. .Morse, VI, 570. Jackson v, Mowby, HI. 172. Jackson v. Rosevelt, IX, 471. Jackson v. Silver Nail, V, 411, 424. Jackson v. Spittal, I, 104 : HI, 187. Jackson v. Walker, X, 519. Jacob V. Latour. HI. 363. Jacohson v. Blackhurst. X, 89. JatYray v. Tredwell. VIII, 36. Jaines v. Kerr, XII. 146, 149. James v. Cotton, IV, a02. James v. Emery, IX. 538. James v. Griffin, VI. 274. James v. Salter. T.W.. 275. James v. Southwestern Kv. Co.. HI, 376. J.ameson \. SwiiUon, IV, 32. Jann'eson v. Teague, XI, 267. Janes v. Whi.bread. T.W., 202; IV, 74. -2-20. Jarden v. Philadelphia Ry. Co., V, gg. Jarret v. l^illon, IV, 423" Jarvis V. Brooke, IV, 416. Jarvis V. Fleming, XII, Q{. Jarvis v. Great Western Rv. Co.. HI, 43. 4S. Jarvi,-. V. J,-ickson. T.W., 79. Jason V. Eyres, I\'. 181. Jay V. Johnstone. XI. ^42. Jayiie v. Pric", T.W., ",:i48. Jeakes v. Whi e I H. ^^21. Jebb V. Tugwll. HI,",s8. Jefferson Countv I'ank v. Chapman HI, 167. Jeffervs v. leff.n-, iV, I ',2. Jelfs V. B.-illard. J IF. 2. Jellet V. Wilkie. XII. .:9(l Jenkins v. Brecken, I\', j'io. Jenkins v. Bu shhv. ■I- 3^.^ Jenkins v. Gethin'g, HI. .342. Jenkins v. Hutchiiison, X', 20',. Jenkins v. Miller. \'HI, 131. XXXIV CASES JUDICIALLY NOTICED. P'i! Jenkins v. Parkin>on. T.W., y?'^- Jenkins v. Plonibe, 111, lo. Jenkins v. Row, IX, 68. Jenkins v. Riittan, X. 507. Jenks V. IJoyleston, II. J77 ; IV, 30. Jenks V. Turpin, VII, 52J, 530. Jcnkyn v. Vauglian, III, 658. Jenncr v. .Morris, V. 245. Jenner v. Smith, III, 434. jenner v. Sniitli. XII, 407. Jennings v. Camp, III, 77. Jennings v. Jolinson. Ill, 85. Jennings v. Rigby, III, 465. Jennings v. Throgniorton Ry., V, 67. Jennings v. Ward, XII, 147. Jenoure v. Delmage, VIII, 53, 57. Jerome v. Ross, V, 100. Jesse V. IkMinetl, III, 652. Jesson V. Wright, Vll. ^47. Jewell V. Grand Lodge, A. O. U. W., XI, 20. Jewell V. Parr, V, 7g. Jinks V. Banner Lodge, XI, 20. Joddrell, Re. IX. 312. Joiee, In re, T.W.. 2. Johns V. James, III, 662. Johnson, Ex parte, T.W., 2. Johnson v. Cine, VI, 502. Johnson v. Dijjrose, IX, 367. Johnson v. Fesemeyer, XI, 348. Johnson v. (jallagher, I, 214, 216, 218. Johnson v. Hope. \'l. 499, 503, 513. Johnson v. Ihidson, IV, 215. Johnson v. Lasone, IV, 282. Johnson v. Xewton, V, 146. Johnson v. Smith, II, 29. Johnstone v. Sutton, T.W., 83. Johr.itone v. Huddlestone, X, 3. Joliffe V. Baker. T.W., 195; I, 48. Jolland V. Stainbridge, VII, 384. 388. Jonas V. Long, \'III, 88. Jones, Re, VII, 184, 188. Jones V. Axcn, VIII, 366. Jones V. .\shcroft, X, 642. Jones V. P>ank of Montreal, IV', 208. Jones V. Barkley, T.W., 269. Jones V. Beck, VI, 397. Jones V. Bird. XI L 424, 482. Jones V. Bright, X, 76. Jones V. Mroadhurst, XI, 299. Jones V. Chapman, T.W., 48. Jones V. C'lwdcn, VI. 568. 575. Jones V. Ciirrey, VIII, 488. Jones V. Dale, IV, 465. Jones V. Davids. Ill, 129. Jones V. Dow, III, 553. Jones V. Dunbar, I, 233. Jones V. Earl of Strafford. II. 191. Jones V. 75. b'estininog Ry. Co., XI, 32, Jones \. (iittins. XII, 623. Jones V. Criftith, X, 583. Jones V. Gw\nn. VL 253, 642. Jones V. Henderson, I\'. 7; IX, 85. Jones V. James, XI, 311. Jones V. Jones, IV. 190; \1, 277. Jones V. Just. Xll. 551. Jones V. Kearney, VI, 613; X, 441. Jones V. Lewis. \', 22},. Joi.es V. Littledale. I. 70. Jones V. Merionethshire, etc.. Build- ing Society, X. 285. Jones V. Monte X'ideo Gas Co., VII, 576. Jones V. Jones V. Jones V. iX. 403. \", 418. ..\; .\'ew \'ork T. Morgan, Xariney, Xorwick Co., Ill, 498. Jones V. Owen, VIH, 488. Jones V. Page, I?v, 145. Jones V. Regan, HI, 5,^3. Jones V. Rimnier, IX, 446. Jones V. Simpson, IX. 566. Jones V. Stanstcad, XU. 44, 429, Jones V. Stephens, T.W.. 88. Jones V. Whitbread, II. 99. Jordan v. Gibbon, T.W., 80. Jordan v. Matt, X, 397. Joseph V. flenry, X, 269. Joseph V. Ingram, T.W., 202. Joseph Suche iV Co., Re, XI, 530. Josling V. Kiiigsford, .Xll. 532. Jowatt V. Charnock, VIII, 149. Joyce V. Hart. XL xj2. Joyce V. Swann, XII, 406. Joyner v. School District, VII, 13. Joynes v. Collinson. Ill, 681. Judson V. Wass, X. 508. Jukes doc d. v. Smunier, X, 326. Jukes V. Winnipeg & H. B. "Ry. Co., VII, 458. Juluis V. Bishop of Oxford. HI, 577. Junell V. Newman. Ill, 285. Jury V. Barker, IX. 626. Juson V. Reynolds. X. 236. Kahl V. Jansen, I, 179. Kain v. Old. VI, 147, 153. Kavanah v. Gudge, T.W., 48. Kay V. Waghorn, T.W., 525. Keane. In re, IX, 603. Kearney \-. Dickson. V. 86, 104. Kiarney v. King, XL 310. Kearon v. Pearson, TAV., 121. Keate v. Phillips. XH, 302. Keating v. Moises, V, 21 ; IX, 500. m 1 CASES JUDICIALLY NOTICED. XXXV Kfats V. Keats, VI, 217. Keefcr v. .Merrill, IV, 31, 288. Keefer v. Merrill, IX, 98. Keeler v. Hazelwoud, IV, 236; VI, 188. Kcene v. Beard, I, 8,^. Keen v. Millwail Dock Co., XI. 533. Keen v. Priest. T.W., 137. Keene v. Xew England AI. A. A., X, 563, 564- Kceser v. McMartin. XI, 481. Keily v. Keilv. T.W.. 352. Kellog V. Hait, IV, 478. Kellar v. Tache. VIII, 45. Kelly V. Ardell, VI. 597. Kelly V. Garrett, III, 166. Kelly V. Imperial Loan Co., VIII, 190. Kelly V. Kisk, VI, 486. Kelly V. McKenzie, II, 313. Kelly V. Macaron, III, 298. Kelly V. Mackleni, VI, S40. Kelly V, Ottawa St. Rv.''Co., VI. 170. Kelly V. Ottawa St. Ry. Co., XI, 532. Kelly V. Smith, VIII, 403. Kelly V. Solari, X, 69. Kclsev V. Kelsey, IX, 68. Kemble v. Mills, III, 683. Kemp V. Garner, IV. 485. Kemp V. London & Brighton Rv. Co.. T.W., 365. Kemp V. Owen, VI, 60. Kemp V. Rose, VI, 420: VII. 164. Kempe v. Gibbons. X, 427. Ktmpland v. Macaulay, XI, 611. Kempt V. Parkin. JV. 419. Kempt V. Parkyn. VI, 570. Kendall. Ex parte. X, 580. 587. Kendall v. Kingslev, X, 598. Kendall v. Wood. "ll, 381. Kendell v. Hamilton, VII, 566. Kendrick v. Lee, V, 326. Kenley v. Hudelson, I. 305. Keinmerson v. Henry, \', 397. Kennard v. Harris, III, 339. Kennedy v. De Traftord. XII. 66. Kennedy v. Freeman, VI. 498. 513. Kennedy v. Green, \'III. 562. Kennedy v. Green, XII. 233. Kennedy v. Lawlor, T. W.. 2^0; I. 80, 153. Kennedy v. Patterson. IV, 140, 345. Kennedy v. Toronto, XI, 511. Kennerley v. Kennerley. V, 274, 279. Kennct & Avon Coal Co. v. Tones. IV, 521. Kenney v. Brown, XII, 265, 272. Kenny v. Hutchinson. IV, 329. I Kensington, Ex parte, T.W., 18. i Kent V. Elstob. 1, 65, 66, 67. Kent V. Worthing Local Board. IV, j Keogli V. Keogh, IX, 402. Kepler v. Supreme Lodge, XI, 18. Kerr v. Ailsa. XII. 9. Kerr v. Bowie, I, 336. Kerr v. Campbell. II. 191. \ Kerr v. Canadian Bank of Commerce, T.W., 192; I\', 72. Kerr v. Jeston, XL 266. Kerr v. Kinsey, XI, 607. Kerr v. Malpus, II, 299. Kerr v. Stri|)p, I, 221, 222. Kerrick v. Saft'ery, IX, 68; X. 117. Kerrison v. Cole. Ill, 589; IV, 1,^7, 362; VII, 98. Gerrivan v. Daniel. Ill, 660, Kerry v. James, XI. 411, 506. Ketcluim v. Evertson, III, ~j. Ketchum v. McDonnell, I, 336. Kewlcy v. Stokes, III, 77. Key V. Thimbleby, II. 217. Keys V. Johnson. I\', 65, 167, Kibbett v. Lee. V, 278. Kibble V. Gough, XII, 401. Kidd V. O'Connor. Ill, 89: V, 61. Kidd V. Walker, III. 602. Kiddell v. Burnard, X, 76, 80. Kiely, Re, XI, 360. Kiely v. Kiely, II, 164; XI, 235. Kier v. Leeman, XI, 179, Kilkenny v. G. S. & W. Ry. Co. v. Fielder. Ill, 283. Kilmer v. G. W. Ry. Co. VI. 560. Kilner, Ex parte, 409. Kilroy V. Simpkins, IV. 477. K'mbray v. Draker. \'I. 457. 459. K i::'hant v. Kinehant. IX, jS^. Ki.ig, Ex parte, IV. 423. King. Re. VI, 400. King y. Bishop of Ely, III. 371. King V. Boston. II, 108, 109. King V. Duncan, I, 141. King y. Duncan. XII. 311. King y. England, VIII, 410. King y. Farrell. VI. i. 4. King y. Franklin. T.W., 78. Kitig V. Gordon, X. 277. King y. I! all, X. 626. King y. Higgins. X. 500. King y. Holland. X, 277. King V. Floare. II, 228; VII, 566. King y. Inhabitants of Darlington, VIII. 3aS. King V. Jeffries, IV, 314. XXXVl CASES JUDICIALLY NOTICED. King V. Justices of Cambridgeshire, XI, 223. King V, King V. V. V. V. V. V. V. V. V. V. ivnig King King King King King King King King Keating, III. 652. Kemi). V. 71. Kenworiliy, XI, 455. King, IV. 240. Kuhn. VIII, 243. Lucas, I, 218. .MacDunald, XJ, 481. Marisae, IX, 106. Neville, XI, 45O. North Curry, X, 626. Pease, XI, 80. Co., ()4J .^5. King V. Rossell, V'i. 531. King V. Sears, III, 3S5. King V. Stevens, XI, 265. King V. Waring, T.W., 88. King of Spain v. liulleit, VII, 430. King of Spain v. .\lachado, III. T20. Kingsford v. Great Western Ry. VII. 427. Kingston Case, II, 137. Kingston, Ex parte. IX, 20. Kingston v. Drennan, .Xll, 483, Kingston v. Preston, T.W., 269. Kingston Union v. Landed Estates Co.. 309. Kiniiear v. Johnson, XI, 34X. Kiniiear v. Walnisley, XI, 348. Kirby v. Potter, III,' 54. Kirby R. Hospital. Re. Ill, ^jt,. Kirby v. Potter. IV. 21. Kirby v. Siggers, II, 228. k'irchholTer v. Clemeni, XII, Kirk V. Bell, VII, 88. Kirk V. Blurton. Ill, 19. Kirk V. CiU.'irdian of Bromley L'nioii, III, 77- Kirkham w Smith. IX, 396. Kirkwood v. Cheeton, III, 312. Kirkwood v. .Smith. XII, 495. Kirkwood v. Thompson, IX, 68. Kitchen v. Camiihell. 11. 229. Kitchen v. Kitchen, XII, 303. Kitchen v. .Murrav, I, 13 ; IV. ^94; \M. 248. Kitching v. Hicks, III, 589. Klein V. Klein, VII, 41 : VIII, 27S. Kloepfer v. Warnock, \'I, 504. 512. Knaggs v. Ledyanl. III. 14. Knapp v. Brown. X, 521. Knajip V. Wallace, IV, 167, 170. Knight V. Lgerton, T.W.. TV). Knight V. Hall, Re, VI, 398. Knight, \-.\ parte, T.W.. IS3. 207. Knight V. Coales. X. 484. Knight V. r;. T. ^^. x. 663. 664. Knighi V. Hunt, HI, 303. Knight V. .Medora, VI, 2. Knight's Will. Re. XII, 223. Knolt V, Colter. HI, 5- Kiiowlden v. Queen, V. 3,39- Knowlman v. Bluett. XL 154. Knox V. Brown, II, 195. Knox V. Simmonds, XI, 265. Knox V. Travellers, VI, 608. Kock V. Enmierling. IV, 162. 163. Kough V. Price, HI, 593. Kraemer v. Gless. I, 141. 143. 219; V. 34, yy, VHI. 26 r ; XI. 119. Co. V. Wandsworth, La 140; 574- VII, Liverpool Insurance Co., L. D. & G. Ry HI. 275. La B.'impie Jacques Cartier Banque U'Eparque. X. (13. Labatt v. Bixell, T.W., 192: I II, 12: V. 240; VI, 608; \T Labatt v. Chishohn, VII, 574. Lacey v. Ingle, XI, 369. Lackington v. Combes, XL 654. Lacon V. Liffen. T.W., 198. Lacy V. Osbaldston. IV, 3. Laf(jnd v. Ruddock, I, 3. Lafoiie V. I'alkland Islands Co. 429. Lafargo v. VI. 234. L;igeni()diere v. H. B. Co.. IV, 169 Laird V. .Maiden, VHI, 467. Laird v. Pini, XL 294. Lake v. Billers """ Lake Superior VI, 34.S.. L;ike Superior Nav IV, 429. Laml) \-. ^IcCorniack, IX. Lamb v. North London Ry. Co.,V, 99 Lamb v. Young, VI. 499. 512. Lambert v. .Marsh, IX, 559. Lamprell v. Billcricary Union, 3.10- Lampriere v. Mereikiy, V, 322 Lancaster \-. !""ve, II, 114. Lancaster v. Grieves. T.W., 2 mdnian v. Crooks, III, 64 XI, 469. Nav. Co O v. Beatty, Morreson, 68; X, 117. T.W., .,'indowncrs' West of Engl.iiid Co. v. .Vshford, VII, 99. ,anc v. Burncy, HI, 686. ,anc V. Capsey, X. 112. .ane v. Ridley. IX, 153. .ane Coun'y \-. Oregon. IX. 337. angham. Re. V, 140, 148. .angh.am v. Great Northern i\:'.ilw;iv, II. 197. .atiThrmi .Sk-ating Rink Co.. In re. IX, "3. ml CASES JUDICIALLY NOTICED. xxxvn Langhom v. AUmUt, I, 179. 209; X, 55' Laiiglois V. Baliy. \', -'27. Lanksiaffe v. Fenwick, IX, 17. LangstalY v. Niclioison, iil, 501. Langstun v. CnriK-y, 1, 278. Langtnn v. Iluglies, \', 67. Langtry v. Dumouliii, IV, 350. Laplaiite and I'uiLThorough, Re, IX, _'5S; VI J, _M4, -'4'- Laporle v. Costick, III, 642; \ HI, 260. Lara v. Hill, IV, 159. 167. Larchini v. Xorth Western Deposit Bank, II, .50(). Larios v. (Jureiy, T.W'.. t,^4; HI. i,?'- Larocke v. O'Hagan, HI, 3O4. Larocque, Re. IV, 290. Larpent v. Bihhy, T.W., 202. Laslett V. Cliffe, X, 159. Lash V. .Meriden Britannia Co., II, 42; IX. 63.3. Latch V. Furlong, \HI, 198. Latch V. Inirlong. XI 1. 72. Latham v. .Spedding, VIII, 485. Latham v. Rutley, V, t,3~. Laurence v. Lord Norreys, IX, 292. Laurance v. Thurlow, IX. 258. Laurie v. Rathhurn, H, 241. Laverandrye Case, IV, 515. Lavcry v. Turlly, XI, 169. Laverv v. Wolfe, XI, 66. Law. Re. V, 133. Law V. Hudson, IV, 218. Law V. Jackson, VI. 39. Law V. Farcer, HI, 242. Law V. Farnell. XI, 656. Lawrence v. .\ccidental 554- Lawrence v Lawrence \. Lawrence v Lawrence v. Lawrence v. Ins. Co.. X, C;im])l)ell, i\. (.. X. R.. XI Luckiiow, VI. Norreys. H, . I'nmerov, 'r.\' 152: 111,84; V. 177. . 424- 88, loi. ■.!8. ■.. 249: I. Lai.llaw. I. 2_M :\ill, 172 The \'acunm I'rake Co. Lawson v. Lawsfjn v. H. 45- L.awtnn y. Lawton, 1 1 1, 341. Laxenhy v. White, H. Jt,. Lazarus v. .Vndrode.VI. 362; IX. 429. Lazerus v. Mozley, XI. t,22. T^each v. Jarvis, I, ij Leacock v. Chaml)er>, I\'. 247. 444; V, 240; IX. loi, 440. Leacock v. McLaren. IV, 82. Leader v. Moxon. XH. 424. Leake v. Hawes, \', 2~-- Leake v. Alorrice, T.W., 23. Ltathani v. Amor, IX, 429. LeBrett v. Fapellon, HI, 162. Lechmere v. Brasicr, II, 155. Leddiard, Ex parte, X. 474. Lee, Re. VI H. 382, .387. ^0^■ Lee V. Bank of B. N. A.. X Lee V. Clark. IX. 216. Lee V. Credit Valley Ry.. X, Lee V. (hand Trunk Ry. Cn. 353- 496. 12; 1. .LS2, Lee Lee Lee Lee Lee Lee Lee Leech Leech Leeds Criffin, IV. 437. Hart, T.W., 198, 201. Jones, IX, 172. .Milner, T.W., 365- Ruggles, X, 227. .Smnmers, II. 192. Victoria Ry. Co., X. 120. V. (iartside. XI I, i lO. V. W'illiamson, VIII, 275. V. Lancashire, V, 1 lO. Lees V, Nuttall, I, 10, i r. Leeson v. (ien. Council, etc., XH, 203, Lee^nn v, Sayer, IV, 484. Leete v (iresham Life In-ur;ince Co, XII, 238. Lefroy v, Burnside. VHI, 67, Leftfoot V. Tenant, V, 67, Leggo V, Thiliaudeau, XH, u''- Leggo V. Yoimg, I. 66; VHI. 22,]; X. 240. Legh V, lA'gh, HI, 295, Leigh V, Smith, 1, 207. Leitch V, G, T. R., X. 662. Leith V. Freelar.d, V, 9, 11, 14; X, 329. Leland v. Bennett. X. 2-,7. Lemoine v. Raymond, Vll, 488, Lem;in v. (Inrdnn, 111, 163. Lemon v. Lemcui, \'1I. 600. LeNevc v, LeXeve, IV. .ju; \'HI, 234- 243 LeXorsir.and v. Frincc of Capua, HI, 009. Leonard v. .\ttwell, V. 134. Leonard w Sheard. T.W.. 20J Lelhhridge v, Mylion, \', 9, n, 14; IX, 182; X, 329, Lett V. Commerci.al Bank of Canada, HI, 3.30; IX. 133, 496, 548, Lctton V. Ciooddcn, fX. 242. Les Ecclt'siasti(|ucs v, .Montreal, XII, 606. Leslie, Re, XH, 265. Leslie V, Can.ada Central Rv. Co.. I, 163. Leslie V. Ljunmiis. 11. 281. M xxxviii CASES JUDICIALLY NOTICED. i: ■ ■'■■■ , n 1 '<(-■; Lewis V. Lewis V. Lewis V. Lewis V. Lewis V. Lewis V. Lewis V. Lewis V. Lewis V. Lewis V. Lewis V. Lewis V. Leslie V. French, XII, J;y. Lester v. Garland, VIL 2bi ; X. 697. Levery v. Turley, III, 443. Levi V. Coyle, \'III, 2_»,?, ,?,36. Levi V. Reed, XI, 37J. Lcvine v. Claftin. \ II, ui ; IX, 133; X, 22, 604. Levy V. Drew, III. 671. Levy v. Halifax & Cai)e Breton Rv., IV, 25. Lcwers v. Earl of Sliafieshnrv, I .W., 379- Lewin v. Trininiing, Xl. 365. Lewin v. Wilson. XI. 54-'. Lewinc v. Savage. VI, J51. Lewis, Re, VI, 181. Beard. IV. 483. City of Toronto, X, 212. Clement, T.W., 322. Duncomhe, T.W., 275. Holding, IV, 220; VI, iii. Holmes. T.W., 145. Jones, X, 91. Nicliolson, X. 203. Payne, H. 285, Read, IX, s^y. Read, XII, 632. Smith, XII, 222. Lewisham v. Drew, 111, 657. Ley V. McDonald, VI, 4ro. Leys V. McPherson, XI, 412. Libhy v. Main, IV, 519. Licensed Vict. Mm. Trad. tion. In re, XI, 643, Lichfield Case. 11, 136. LilTen v. Mertens, T.W Li^htfoot v. Heron. I. Lillev V, Harvcv, \'III, Lillic v. Price, Vl, 584. Limerick & Waterfcjrd Fraser, HI. 279. Lincoln v. Chaplin, VI, 39. Lincoln v. Wright, T.W., 24. Linden v. Hooper, 11. 260. Lindlev v. I.acev. HI. ^(u xi. 600. Lindon v. Sharpe, T.W., 200. Lindsav v. Ilurd, Xll, ^10. Linnet v. Chaffers, VI H, 276. Lisgar, Re, VHI, 479. Lister v. Leaiher, II, 195. Lister v. Perrymaii. T.\\.. 83. Lister v. Turner. 111. 656. Little V. Incc. III. 27. Littler v. Holland. T.W.. 125. Livingstone, Re. V, 148. Livingstone \'. Farmer. V. 87. I,i\ingstone \-. Livingstone, V. 00. A ssocia- ., 24. 120. 4>^.^ : Rv. IX. 630. Gi. v. IV, 76; L..'ngsione v. Stickles, V, 413. Llai. ver v. Homfray. XH. 220. Llewe.; -n's Trust. In re. III, 59. Lloyd V. Carr, X, 102. IJoyd V. Dominick. 1\'. 248. Lloyd V. Lander. 1\', 340. Lloyd V. Matthews, IV, 63. Local Option .-\ct. In re, X, 530. Lock V. Furze, VI, 332. Lock V. Todd, X, 318. Locke V. Wright, T.W., 269. Lockett V. Lockelt. IV, 56. Lockhart v. Craig St. Rv. 265. Lockhart Lockhari 190. Lockley v, Lockley, T.W., 24. Lockwood v. Levick, IV. 162. Logan V. .Mder, VII, 247. Burslem. II, 349. Earl of Courtown Crav, 111, 256. Hardy, VI. 54-^ Co., IX, VHI, Logan V. Logan V. 114. Logan V. Logan V. VIII, Lewesurier. Ill, 3^;^. Ryan. V. 367. Logie V. -Austin. III. 13. Logic V. Young, HI, 13. London & Blackwall Rv. Co., I, 34^ ; VI, 366: VII, 479. ■ London c^ Can. Co. \. Connell. .Xll, 51, 520. London iV Canadian Loan & Agency Co. V. Everitt, 11, 158. London & Canadian Loan & .\gency Co. V. tiraham. \'. 410. London &' Canadian Loan & .Agency Co. V. Morris, VHI, 94: L\, 330. London & County Banking Co., E.k parte, XI. London & Xorth-Western Railwav v. Bartlett. VI, 278. London Case, 11, 134. London & Xorthern Insurance Co., Re, IX, 3.S8. London Bank of Mexico & Snuth -Vmeric.-i v. Hart, 1, 203. London Celluhiid Co.. In re. XI, 643. London Syndicate v. Lord. X, 152. London T. & S. Ry. Co., Re. \'I. 202. London Docks Co. v. Linnott, T.W., 339. London Guarantee Co. v. Fearnley, 111, 561. London v. Taxing Dis., VI, 39. Long v. Borvving. Ill, 123. Long V. Burton. \'. 251. Long V. Crosslev. .\I, 305. Long V. Hancock, \'T. 499. CASES JUDICIALLY NOTICED. XXXIX 'IX. 97. . 111. 055 VI. Co., V. Earl Oxenden 14. oi Effing- , IX. Johnstone. I. 204. .399- III, Long V. Long, III, 67 Long V. Storic, V'l, 155. Longljothrun y. liarry Longeway v. Mitclicl 3J0, 597 ; X. 4J0. Longnioie v. Great Western VII, 15.3. Looniis V. Ballard, I, 256. Looseniore v. Radford, V, 12 Lord. Ex parte. XI, 449. 571. Lord Bellaniont's Case, VII, 491 Lord Dorchester ham, V, 145. Lord Conipton v. Lord Cranstown 22; XI, 54- Lord Mostyn v. Spencer Lord Raneia,ii;h v. 11;iyes, I\', 24S Lord Sondes v. Fletcher, T.W Lord Tredegar v. Windus, ill. Lord V. Wardle, VIII. 6.3. LorriI;n\l v, Tllister, II, 296, Lott V. Melville. VI. iii. Lound V. Grinnvadc, X, 283. Louth V, Western of Canada Oil 1.3,3: III, 282. Lovegrove v. London, Brighton Coast Ry., V, 372. Lovell V. Newton, VIII. 265. Lovell V. Wardroper. Ill, 657. I.nvick V. Crowder, IX, 370; XI, 607 Low V. Bovcric, XI. 659. Low V, Beardinore, VI, 263, Lowe V. Dixon, T.W., 48." Lowe, Ex parte. T.W., 153. Lowe, Re. VTII, 402, Lowe V. London & X.-^^'. Rv VI, d8. I. owe V. Waller. VI, Lowell y. Bank- of III, 12. Co. & Co. 40. 341- Upper Canada. Newton, X, 455. Clarke, T.W., 109. V. Belisle, VI. 36, 52. Crookshank, VI, 156. Godwin, T.\A'., 60 ; X, Lowell V Lowes V L'Union Lncas v. Lucas V. 469. Lucas V. W.irswioK .v, ^ Ludlor V. \^an Ransselear, LufT V. TTorner, T.W.. 200. TAHuby V. Allday, X. 2T2. Luinley v. Gyc, VII, 487. Lumley v. Hodgson, XT. 300. Lundic V. Robertson. TTT. 222 Lundy v. Dovcy, IV. 4S5. V. IX, 70, linn. V. Winnipeg. II, 234. wndes v. I'letlle, V, 83, 9(1. yden v. Mc(iee, VI. 49>- Keiniedy. IV. ijO: \'1I. 576. , Eivingston, XI 1, S. Wood, X, S07. Moody. V. :i(K^. Duniliell, II, 193. Fishnidiigers, III, 28. Mitchell. IV, 63. , Carberry Milling C( IX, V. 420. ■ron- yell V. ynch V ynch V Lynne v L_\(in \'. Lyon V, Lyon V. Lyons v 163. Lysaught v. Edwards, IV, 240 168, 417, 426. Lvsaught V. Rovce. V. 1,38, Lyttle' V. Broddy, IX, 485. Macaulev v. Riniiball, T.W., 202. Macdonald, Re, VII L 558, 562, 563. Macdonald v. Croinbie, \'ITI, 273, 278. Macdonald \-. Cninniings, \'Iil, Mjicdonald v. Whitfield, X. 640. Mace. Re, and the Comity of tcnac, VIII, 431, 433. Macfarlane v. Leclaire. 111. ^06. Mackay v. Doug'a^. \'f[L 27^. 2S1. Mackrell v. ITniit. \'. 426. Maconiber v. Parker, X. 345. Macrow v. Great Western Ry. Co., I. 35^- Maddison v. Alderson, XI, 169. ?ifaddocks v. ITolmes, V. 252. Madegan v. McCartliv. ITT, 340. Alagarth v. Todd. Ill, 592. Magdalen Coll.. C.-i'^e of, \'. 94, Magee, Re, VI. 295. AL-igee v. Lavell, TV. J83, Magimiis \-. Fallon. IV. 240. Maliar v. Eraser, XT. 626. Maillard v. Tlic Duke of ,\rgvle, XT, 207. M;iit'and v. Gl be Rrinting Co , 66r. Mainland \-. I'pjolnis, XII, 149. Major V. Mcliityre, X, 245. Makepeace v. Rogers, XII, 439. M;de v. Boucliicr. TIT. I7r, M.alcolni v. Loveridire. IX. 3or. ^^alcolnl V. Parry. XL 562. Malcolm V. Rogers. ITT. 575, Malcolm \-. Scott, I. 31 1. Man V. Rickett:-. XII," 453. Manbv V. Citr:i<. XI, 2ti. Manchrsicr v. Milf' rd Rv. re, X, 114, 127. X, Co. Tn xl CASES JUDICIALLY NOTICED. IV, 3(>5. l.uan Co Bar- Mc- V. Scliultz, -O. V. Manclicstcr Ry. Co. v. Fullcrtoii, XI, 80. MaiicliL'ster, etc., Ry. v. Great N.-W Ry.. V, 9H. AlaiiclicstcT V. Parkinson, XII. 494. AlandiT v. Roval Canadian Bank, XI, 497. Mangles v. Uixon, iManiii)l)a & N.-\V. kcr. IX, 7_'. Manitoba & N.-W. Loan C Pherson, IX. 3J9. ^Manitoba & S.-W. Rv V, 42. Manitoba Electric, etc., Co. v. Ger- rie, IX, 157. _'85. Manitoba Investment Association v. -Moore, IV, jjS. .Manitoba .Mortgage Co. v. Dalv. XI, 144, 201. Manly: v. Hawkins, IX, 68. Manley v. Boycott, IV, 258. Manley v. Robinson, III, 4^1. Mann v. English, XI, 628." Mann v. Munn, III. 364: IV, 77, ~g. Mann v. Western ,-\ss. Co.. VI. 214, ^^^. 583. Mann v. W. & II. B. Rv. Co., VIII, 433. Manners v. Rowley, IX. 470. Manning v. Ashall, Vl. 148. M;inning v. Gill, \'. 22S. Manning v. Farquharson, VIII. Manning v. Phelps, T.W., 275. Manning v. Purcell. VIII, 597. Manor of Lowestoft, Re, V, 94 Manscllv. Clements, IV, 61. ^lansell's Case. X. 307. Manser v. Back, IX. 445. Manrcr, Re. VI. 122, 134. Manzcr. Ex parte, Vlt, 4^. 49, 50, 40.1- Mapp V. Elcock. VIII, ^594. March v. Warwick. T.W., :\farch V. Webb. XTl, 311. ATarine Alansions Co.. Re 05. Markwick v. Hardingham. Mannan's Trusts. V. 139. Afarn. of Northampton" v XII, 151. Marrpiis of Brcadalbanc^ of Chandos, XI, 107. The Marnnis of Cholmondeley Lord Clinton. IV. 190. Marrell v. .Milward. X. u'8. 97. 202. VII. 90. I. 14= 4.3. Pollock. V. Marquis .Marrinit v. .\nchor Re\er. Co., XII, Marsack v. Bailey, V, 134. Marsden, Re, III, 465. .Marseilles Ry, & Land Co., Re, VI, 106. Dewes, VIII, 485. 488. Robinson, IX, 538. V. Craig, T.W,, 124, V. Emperor Life Assurance III. 675. Lamb, T.W., 198. Lyon, III, 322. Putman, V, 39. Sheridan, III, 167. Sladden, IV, 340. Wilder, III, 629. Allen. Ill, 408; VI, 340, Marsh v Marsh v Marshall Marshall Society, Marshall v. Marshall .Mar.diall Marshall .Marshall Marshall Alarston v 341. .^44' Marston v. Downes, IV, 3^2. Martcl V. Dubord. VII, 456. Marthinson v. Patterson, XI, 383. .Marthinson \. Patterson. XII, 403. .Martin, Ex parte. V, 140. .Miutimus V. Helmuth, III. 4^1. Martin. Re, III. 381. Martin v. Douglas, V. t02. Martin v. Earl BeAuchamp, VI, 155, 162. Martin v. Great Indian P. R. Co., I, 160, 163. Martin v. Kennedy, V, 173, 177. 184, 186, 199, .Martin v. Lane, IV. 3. -Martin v. Mackonochie, VIII, 213. Martin v. Martin. IV. 444, 44G. Martin v. Mayor of Brooklyn, 129, 265. Martin v. Martin v. Alartin v. Martin v. Martin v. Martindale v. Martindale v. 38.V Martineau v. Alartinson v. 310. Alarv Shelmcr's N, P, Express Co., X, Palmer, VI, 157. Podger, XI. 469. Sampson. XII, 403, Smith, X, 170. V, 665. Booth. T,W.. Fisher. T.W., Kitching, XI. Clowes. VI. i07. 296, ,106. 200. Ill, Marnetti 209. Ala son V. Afason v. Mas Mills V. Ball. VI. 274, 278. Mills V. Fowkes, HI, 379. Mills V. Hanson. X, IS2. Mills V. Lomhard, V, ^ii. Mills V. McKav. HI. 14. Mills V. Mills. HI. ;9. Milner v. Field. T.W.. 270. Milner v. 'Maclean, XI, 284, Milncr v. Milner, V. .36. Milnes v. Milnes. VT. 331. Milville Mutual Marine" S: Eire Ins. Co. V. Driscoll, VIIT, 83. Mincct V. Morgan. IV. 175. 176. >'inchin v. Cle!nent. V. '^69. Minor v. Lo'idnn S: X.-W. Rv., IX, .s,^8. Minton v. Kirkwooil. TIT. \2T,. Mintiirn v. L.irne. IX, J3r). 247; XI, 42r). Mirnn v. McCahe. X. 402. Mississippi P. Railwav v. Tvcnncdv, T, 354. Mitchell V. ?Tavnc, \'. 222. Mitchell V. Hendcr, X. .108. Mitchell V. Jenkins. XI. 270. Mitchell V. T.ancashir-.' tl- Yorkshire T^-, Co., T. 354. Mitchell V. Lee. XL .^02. Mitchell V, Scribner. VTT, 573. Alitford V. Cardwcll. V. 322. Miiford V. Elliott, TW..'ioo. Aloate's Trusts. Re, X. "ot. ATocatta v. Alnrcratrovd TX. 39Q. ATodlcn V. Snowball. T\', 245. Aloffat V. Coulson, AHH, 233. 238, 239, 242, 244. Afoffat V. Llall, IV. 417. AToffat V. T.aurie, T.W., 12=;. AToffat V, Rees, X, 64;. Alogg V. Baker. T. W., 18S; XI, 348. AToggs V. Winnipeg, TV. 456. AIolc V. Smith. TTT, 123. CASES JUDICIALLY NOTICED. diii 490- VIII, so. X, * ift' Ills. '., IX. 7.; XI. iinerly. r. .uS. Molsons Bank v. Hallcii, VI, 500, 502, 504, 506, 507. Molsuns Bank v. llaltc--. VIII, 128, ijc), i,:io. 147, 148; XI. xvj. Molsons Bank v. .\lcCrae, XI, 2g8. Monck lilcction Case, Ke. I\', 293. .Moneys v. Locke, IV. 3O1 ; VII. 98. .Monctte v. Lifchorc, XI, 372. Mcnknian v. (iordon. Re. IX, 22, 432. Monkman v. Robinson. IV. 57; VIII, 2(50, 266, 267, 270. Monro v. Taylor, IV, 482. Montague v. Perkins. VI, 341, .^4^. .Hf). 347- Montetiore v. Monteitli. Re M( ntforton v 156; IV, Brown. III. 661. XII, 264. Bondit, X. 60Q. M( ntgoniery v Ucan. X. 555. Momgoinery v. iJonohue. Ill VI. i6y. ^Montgomery v. Ford. VIII, iq8. Mcntgomery v. Raleigli, XI, 226, Montno\- y. Collier. IX. 630. Montreal Citv Bank v. T'ertli, 4-'8; V. 117. Mrodie V. Steele. V. 346. Moody V. 1 lehherd, I. 371. Moody V. Steward. X. 637; XI. 23. Moon V. Ihirden, XI. 299. 530. Moon V. Rai)liael, T.W., 140. Moons V. De Bcrnacles. V. j6, Moore. Ex parte, VI. 219, 220; VIII, XV 34. ?:7- Moore V. Bank of B. X. A.. VII. ,^88. Moore v. Bartlirop. T.W.. 202. Mrore - ^■■.•idley. VIII, 130. 141. Moore v. Choat, III. 123. VIII. 26. Moore v. Connecticut Life .\ss. Co., Moore v. F.'^quering. VII. 236, 237. AToorc V. Canigee. XI. 312. Moore V. dreg. Ill, 123. Moore V. Johnson. X. loi. Mrorc V. Jones. X. 208. Moore \-. Lawden. IV. 484 Moore V. ^Metropolitan Rv. 456. ^loore V. Moore. IX. 374. Moravia v. Sloper. lY, 518. Morell V. Robinson, III. 435. Morcll V. Morrison. ITT. 426. Morewood v. South "S'ork Rv. T.W.. 202. Morgan. Ex parte, X. ^^>,J. 430. ^Morgan v. Alexander. I. 07: \^ TX. T70. Morgan, v. Bain. VT, 383, 386. Co.. TV Co.. 34^.: Morgan v. Brown. V, 156. .Morgan v, Brundrett. T. W'.. lyy; XI, 347. .Morgan v. Cnbeit. \'l. 3,2(1. -Morgan v. (irillitii. III. ,504. .Morgan v. Gril'litlis. I\ , 7J. 80, 82; Xl. 600. .Morgan v. Leach. .XII. 545. .Morgan v. .Morgan, III. 59. .Morgan v. Painter. \'I. 331, .Morgan v. Palmer. VII. to. .Morgan v. Pike, X, 169. .Morgan v. Richardson, 1\', 478. .Morland v. Pellatt. III. 258; IX. 376. .\iorlcy v. Bank of British Xorth .Am- erica, III, 671. .Morley v. Bird. IV. 3-'t. .Morocco Land ^i: Trading Co. v. Fry, III, 129. Moroney v. O'Dea. IV. 180. .Morphett v. Jones. I, 48. .Morphv v. W'il^on, VI. 008: I.X. 441. .Morrefl v. Wollen, X, 175. .Morrice \-. B;iid< of I'.ngland. 1\'. 444, 446. Morris V. .'\rinitt, \'II. 567. 5()9. -Morris v. Chambers, IX. 14. .Morris v. Coles, IX. 3,2. Morrison v, F.arles. III. 180. Morrison v. Robinson, XII, 558. Morris v. Eilwards. \'ll. VIII. 478. -Morris \-. Li\ie. Ill, 56, .\b)rris v. Manesby. \'. (u. Morris v. Mathcw-;. T\'. 54. Morris v. Rexford, I.X. 587. -Morris v. Scott. \"I. 2O4. Morris v. \\'alker. X. 644. 648. 650. .Morris v. Wise, T.W'.. 79. -Morrison v. Earls, XI. 590. Morrison v. Moreland, I IT, 167. 0, ' 3// Morrison ATorrison Co., XT, -,89, Morse v. Merest. III. 322. Morse V. Phinney. XT. 464. Mor^e V. Phinnev. XIT. 2. Mortimer v. Orchard. T.\\". T^arsons. TIL 293. l'ni\ersal .Marine 24. Ins Monimer v. Shortall.' XTl. 133. Mortimer v. Wright. TX, 123. 124, 125. Morlfm V. Grand Junction Canal Co., VIII. 488. 480; IX. 630. ?.Torton V. Lamb. T.W.. 269. Morton V. Tibbctt. XIT, 5^0. Mnnn. 111. 59J ; 1\'. 515; \I. 58.V Moyle V. Jenkins, XI, ^;is. Mozlcy V. Tinkler. VII. 597. Mudd V. Suchernmre. I. Jbj. Mulford V. Shirk, IV, 75. Mnlgrew v. Pringle, I\'. 202. Alidhnllaiid V. Bnioinlield. I, j-,^. Mnlholland v. Merriain, III, 121. Mnllcr V. Ciernon, IV, 402. Mr.liet V. Mason. X, 166. Mulligan v. White. V, 291, 292. 294; \'III. 81. Mulliner v. Midland Ry. Co., IX, 266. Mullins V. Howell, XI. 147. IMullins V. Smith, IV, 21. Mundell v. Tinkis, V, 225. 227. 234. Munden v. Duke of Brunswick. IV, 521. Municipality of Berlin v. Grange. V, .TO. Munroe v. Abbott. VI. 260. 262. 266. Munro V. Butt. T. W.. 60: III. 77: IX, 469. Ahmro v. Ir\ine, X, 34. Munro V. Pike, IX, 211. Murchanip v. Lancaster & P. Ry. Co.. T.W., 257. T.\^^. 257. Miirdock V. Prospect Rv. Co., V, 100. Murtelt V. Smith. X. S55. Alurphy V. Hubert, V. 234. Murphy v. Larson, VI. 260. 265. 487. Murphy v. Mulholland.VII. 245. 249. Murray, In re, T.W.. 154. Murray v. Arnold, T.W.. 202. Murray v. Canada Central Ry. Co., VIII. 340. Murrav v. Currv. IV. ro. .Murray v. .McCalUnn.VII, 121: VIH. 2(jo. J(>,]. 2(k;; I.\, 133, 187. 549; X. 23, 455. .Murrow v. Wilson, III. 440. .Mr.rlaKh v. Barry. \TII. 89. .Musgrove v. Pidido, V, 84, 109. Mmclunore v. D.ivis. V, 191. .Mutual V. New V(irk. XII, 441. MacDoiiald v. Croinbie, I, 142, 143. .Macdonald v. Tacfpiah Guld Mnies Co.. IX, s^7- Maclarlane v. Leclaire, XI, 370. .MacKay v. DouBlas, I, 304. .Mackenzie v. Brantford. XI, 233. .Mackenzie v. Coulson, XI. 106. .Mc.Xddie v. Corby, I, Kjo. .McAllister v. Forsvth. VIII. 177. 178. 181. .McAllister v. lM)rsyth. XII. 303. 466. ^IcAndrew v. Marker. IV, 356, 3.v- Mc.Arthur v. Cnllingwuixl, XH. 42^). .Mc Arthur v. Dewar. III. 473: V .Mc.\rlhur v. (ilass. \'II, 35, 251, 252, 234. Mc.'\rtluir v. Glass, IX, 566. .Mc.Arthur v. .Macdomicll, HI, VII, 418, 419; LX. 337. McArthur v. Southwold. VII, 2,-^7, 238, 239. .McAuley v. Clarendon. .\II. 283 250, 10; .35. Ottawa. \'I. 88. loi. Father Mathew Society, 178. Rv. McBrian v McCabe v XI, 20 McCabe v. McCabe. VI. 163. .McCall V. Conunercial Union Insur ;incc Co.. HI, 279. .McCall V. McDonald. X. 420. McCall V. Wolff. VIH. 140. 142. McCallum v. Buffalo fc L. H. Co., VII. 102. McCallum v. G. T. R.. XI. 331. McCallum v. Provincial. XH. 435. McCalniont v. Rankin. VIH. 238.^ McCanall v. Watkins. 3. 39. ]McCausland v. McCallum. HI, -?i. McClatchie v. Haslain. X. 287, 288. McClorv V. Wright. XII. zCr^ McClurc V. Dunkin. T.W.. 282. McCf)llum V. Davis. I. 77. McCcinibic v. Davics. X. 349. McConncll v. Dnnlop. I. 24. McCormick v. Grogan. T. 11. McCrackcn v. Crcswick. X. 397. 399, McCrcady v. TTiggins. I, 220. McCrcight v. Oster. V. 426. ' McCuaig V. Phillips. XT 263. ^^cCu(ldy V. .Andrews. XII. 449. CASES JUDICIALLY NOTICED. xlv McCiillocli V. M:iiylaiul, T.W.. J17. | .McDiiiuou, VllI, .^41 ; X, 553. MfDmiaM v. Cam|)l)ell, \', ,V)^. 40. McLatchie v. Mcl.cod, Xll, r)j3, McLanchlin v. Pyper. fV. 419. ^^cI.aughlin v. Slincfer. X. ,-i02. Mcl^can v. Rreithaunt. \'\. 277. McLean v. Cornwall, Nil. (,2. ATcLeaii v. Dingle. I. 176. Duim, T, 28r. Fi-^h, XT, 626. riarnier, X. 640. Gillies, IT, 188. Gillies, II, 18 .McTvcan v McLean v McLean v McLean v McLean v. Gillies, II, 188: \' X, 32 T. McLean v. Great Wcsten^ Rv. -'88. .289, 201 : X, 661. TIannon, XL 461. Lrics. XT. 322. McDonald. TI. 2. 3. Pinkerton, ITT. .88 L 287. McLe.an v. McLean v. McLean v. McLean \-. r. 32. ^^cLean V 130; Co., Shields, VTIT. 10 108. TOO, 112. McLellan v. Assinihoia. \'l. 2 270, 366. 371, 420. McLellan v. Rogers. VI. 329. AfcLennan v. Brown, TV. ^I9- McLennan . G. T. Ry. Co.', VI. 539, 360. TX, in6, 4.-. 247. m. •• xlvi CASES JUDICIALLY NOTICED. McLciinun v. Hcwaid, 111, 64. .McLcod \. Ilaniillon, Xll, 414. McLcod V. .McKay. 1, J56. Mc.Master v. Bcattie, V, 256, 257. WcMaster v. Calloway, VI, 410,412. JMcMastci- v. Clare, III. 655; IX, 44c. McMastcr v. Canada PaiJcr Co., VIll, 454- McTNlaster v. Garland, IX, 82. McMuM'T V. (larlafid. XII. 413. McMastcr \. Jasper, VI, 304. McMasier v. McPher.son, 111, 526. Mc.Michaei v. Thomas, II, 34. McMickf-n v. Graveley. T.W., 229. Mc.Mi'-kcii .-. Ontario Bank, VI, 600; X, 440. McMillan v. Bartlett, VI, 507. McMillan v. Man. & N.W. Ry., VI, .Mc.Mill;nr\^.' McSherry. XII, 410, 4I.V .McMillan v. Warner, XII, 518. Mc.Mullen v. Free. X, 105; III, 364. McMullen v. Williams, XI, 187. Mc.Murray v. Brown, VII, 534. .McMurray v. G. T. R., IX, 162. McMurray v. Spicer, II, 271. McNab V. Oppenheimer, III, 679. McNamara v. Artluir. II, 204. McNally v. Oldham, T.W., 3^2. McNaughton v. Hasker, II, 197. McNaughton v. Webster, III, 532. iMcXeeley v. McWillianis, XI. 598. McXeil V. Kelcher, IV, 82. McNeill V. Cahill, II, 205. ]\[cXevcn v. Livingstone, IV, 482. McRae v. Corheti, VI, 245. .s68; VII, ISO. 4S0: X, 179. 216, 232, 255; XI. 104- McKay v. Backer. IX. 116, 120, McSorley v. St. John, IV, 193. I04- 45.S. 455: V. 265. 270. J7^- VI. 490. McMicken v. Ontario Bank, VI, 600. McPherson v. Reynolds, T.W., 201. McPhillips V. Wolf, VI, 279. .P4- McQueen v. The Queen, VI, 21. McQueen v. McQueen, II, 360. McWhirter v. Roval Can. Bank, T.W., 201. McWhirter v. Thornc, T.W., 201. Nagle V. Baylor, I. 129. Naef V. Mutter, III, T87. Nantes v. Cannck, IV. 75. Nanton v. Villeneuve. XII. 295. 457. 431- llanip- Ivanali, ._ -77- Duke of Marlborough, .\., Vuiserweld R. Napier v. Daniel, VIII, 05. Xapier v. Hughes. XII, 311. .\;;rgctt V. .\ias, T.W., 139. Xash \. llddgson, VIII, 525. Nash V. Rcgina, VII, 619. .\asmith V. .Manning. I, 135; iV Nat. Bank of Australia v. Lmted Hand in Hand. .\11, 68. National Bank v. Kirby, X, s^d. .\'al. Ins. Co. V. Egleson, XII, 311. -Vatioiial Life Insurance Co. v. I'^gan, HI, 148. National Mercantile Bank. Ex parte, 11. 505 : V, 216. National Alercantile Bank v. son, IV, 144, 145, 146. National Savings Bank v. XI, 297. Xaylor v. Collings, III, 344. Naylor v. Dennie. VI, 275. Neate v, 421. Neath Canal Co. v. C. Co., V, loi. ?\eill V. Carroll, I. 174; IV, 17. Ncill V. Travellers' Ins. Co., X, 560, 3. Nelles V. White, X, 237. Nelson v. Newcombe, V, 139. Neo V. Neo, VI H. 393, 394. 396- .W. 39^. Xerlecii v. Clifford, \ II, 573, 574. Nesbit V. Berridge, III, 129. Nesbit V. Berridge, VI, 598. Nevill V. Corp. of Ross, VI, 88, loi. New Chile Gold Mining Co., In re. XI, 643. New England Bank v. Lewis, HI, 664. New Sombrero P. Co. v. Erlanger, XI. 646. Xew Westminster v. Brighouse, XII. 426. New Windsor Turnpike Road v. Wilson, V, 298. New York & Erie Railway Co. v. Sabin, V, 308. New Zealand Land Co. v. Watson, IX. 633. Newby v. Jackson. IV. 483. Ncwby v. \^in Oppen Man. Co., T. W., 231: III. 188; VI, 166. Newbigging v. .\dam, XI, 106. Newcombe v. Newcombe. V. 1,^9- Newell v. Hadfnrd. VII. 7^1. 7^- ^■ Xewhall v. \'ergas, VI. 277. Newman v. King. \', 134. CASES JUDICIALLY NOTICED. xlvu Newman v. Mcrriman, 111, 5J5. Ncwiiliani v. Stevenson, T.W., joj. Newport V. Light Co., IX, 256. Newsani v. Carr, T.W., 88. Newton, Re, V'lII, 285. Newton V. Cubitt, IX, 260. Newton V. Egniont, 111. 127. Newton v. Harland, II, 634. Xicliol V. Godts, XII, 552. Xielioll V. Jones, IX, 49,^, XI, 328. Nicliolls V. Cnnimings, V, 39. Nichols V. Goldsmith, IV, 30. Nichols V. Ramsel, X, 698. Watson, III. 119. V. Nichols V. Nicholson Nicholson 3.S9. Nicholson 104, 106. Nicholson V. Bradfield. XII. 47=;. ^.=52 Bradtield Union, T.W. V. Bradford Union, IV Bradfield Union. VI, 88, 99, 102. Bnrkholder, X, 180. Hooper, IV. 365. Sedgwick. VI, 4(')''^. 4^'9. Tutin. T. W. Ill Nicholson v. Niciiolson V Nicholson v Xichdlson v 662. Nicoll V. Glennie. X, 343, 8. Nigle V. Bell, T.W., 77. Nisbet V. Cook, III, 591. Niven v. Belknap, IX. 555. Nixon V. Tatif Vale Ry. Co.. Vll. 107. Noble V. Ward, III. 2,^2. Noel V. Noel. VII, 5/8. Noell V. Wells, X, 185. Norcntt v. Dodd. T.W., 192. Nordenstrom v. Pitt. Ill, 601. Norfolk Election. Re, VIIl. 479- Norris v. Carrington, VI, 254. Norris v. Chandjrcs, XI, 55. Norris v. The Hundred of Gantris, I. 183. North V. G. N. R.. XII, 440. Northampton Coal, Iron & Waggon Co. V. Midland Waggon Co., Ill, 283. North V. Turner. Ill, 664. North British Ins. Co. v. Lloyd. IX, 172. North DufTerin Case, Re. IV. 517. North Durham Case. XI. 562. North L. Ry. v. Great N. Ry,. VI, ,^65. 366. 368, 371: TX, 5S4- North of Scotland v. German, VI, 613. North of Scotland v. Udell, VI, 613. North Slaffordshirc Rv. Co. v. I'eck, IV, 508. North York Electujn Case, Re, l\ , 294- Northern Assam Tea Co., IX, 346. Northrup et al v. Townsend, I, 100, lOI. Northwest Connnercial Travl. Ass. V. London Guarantee Co.. X. 612. North-West National Bank v. Jarvis. HI, 679. North-Wcstern Railway Co. v. Mc- ■Michael, III, 34. Xnrthwood V. Raleigh, XII. 430. Xishii V. Cock. III. 591: X, 415. Nosworthy v. Buckland, VII, 254, 582. X'otter V. Smith, V, 133. Nouvion V. Freeman, Vl, 214. Xowcry V. Connolly, Xll, 631. Nowdan, Re, VII, 600. Xoycs V. Pollock. IV. 180. Xunn V. Fabian, T.W.. 24. Nur.n V. AX'illsmore. T. W.. 197; NT. 3-'o. Nyberg v. Handelaar. X. 348. Nylander v. Barnes. 111. 609. O'Brien v. Cogswell, VII. 130, 477. 506. 507. 511. 312. 513. 5t4, 516; X, 215, 220, 250. O'Brien v. Cogswell. XII, 2()9. 464. O'Connell v. McNamara, II, 206. O'Conner v. Sierra Nevada Co., .\1, 6. The Queen, XII. 196.. -.mioll. Re. VII, O'Connell 197- O'Do'iohue an(' 184. O' Done hue v. Eraser, IV, 476, 479. O'Donohue v. Stammers, IV, 508. C^'Donohoe v. Wiley, I, 104. O'Donohoe v. Wilson, XI, 465. O'FIaherty v. McDowell, III, '546. O'KeetV V. Taylor, XII. no. O'Loughlin v. Dwver, XII. 263, 272. O'Reillv. In re. T." W., i:^?; VI, 24. O'Sullivan v. Mi.rphy, XII, 142. Oakcs V. Manfgs. Fire Ins. Co.. V, 398, 408. Oakf?«-d V. European & American Shipping Co., I, 251. Oakley v. Pasheller, I, 246, 247, 250, 251. 252. Odell V, Ottawa, X, 662. xlviii CASES JUDICIALLY NOTICED. If'" Udgcr V. Mortimer, \'III, 54, 55, 5O, 65, 69. OgS V. Shuter. XII. 406. Ogle V. Knipe, VIII. 597. Ogners Case, III, 229. Olirky V. Ryile C(>mini~-u)ncrs, IV, 95- 99- Ohlakc-r V. Hunt, T.W., ^^V Olatlie Silver M. Co.. Ru. VI. 397- Olilham V. Bewicke. T.W., 269. Oliver, Re, VII. 182, 184. Oliver V. King. I\', 363. Oliver v. Mi-Lnuglilm. .\, j.?.'. Oliver v. Xnrth-Eastern Rv. Co., III. 211. ( >ii\er \-. Oliver, III, 55. Olmsted v. Partridge, \'l, 260, 265, Price. VIII. 285. Bank v. Gibson. 347. .^48. Lamont. Truwern. Wilcox, VI. 340, II, IX. III. 100: 104. 5'),': ■■ 487- I )liver V Ontario 341. 345, 346 Oniario Bank v IV. 74- Ontario Bank v. 8. Ontario Bank \. IX, 8j. 84, 86. Ontario Farmers' Mutual Insurance Co. V. Holliaday, II, 255. Ooregum Co. \-, Roper, XI. 634. Opera, Limited, Re, IX, 214. Cjppeiiheim v. Russell, \''l. 274. 270. 280. Oregon Rv. Co, v. Ore.iMnian Ry. Co., VII. 97- Oriental Bank v. Fitzgerald. .\. 594- Oriental Banking Co. v. Coleman, T.W., 202. Oriental Financial Corporation v. Ovcrend. Gurnev &• Co., I, 252. Oriental, J. S. Co., Re. III. 280. Original Hartlepool C. Co. v. Gibb, III, 25, 164. Orme v. \\'riglit. .\'1I. 7-'- Ormcs v. Bendel, X, 284. Orscr V. Gamble, HI. 77. Osbaldiston v. Simpson. X. 281, Osborne, Re, VII, 182, 184. Osborne v. Carev. \'l. hi). 68, 70. 72: IX. t87. 442. Osborne v. Kerr. I\ , 417. Ostrom V. SilU. XI I 30. Ostrom v. Sydney, \'II, 234, 241, Ottaway v. ITaniiltnn, \'I, 47. Otter v. Lord Vaux. TX. 390. Oucliterlong v. Gibson, V. ^'^22. Ouimit V. Henshaw. I. ,i,^^. Oulds V. Sanson, VI, ,^2C). t,S2. (Jutran v. .Morewood, II. in. Ovens \. Da\idson, X, 2.^(). Ovens V. Tavlor, \'I, 316. Oveniid. (iurne: & Co., Re, VII, 608; X, i8t). Overseers of the fp. of I'2\erton, Ex parte, VII, 57 j Owen V. Body, T. W., 19O; II. 99, 100; I\'. -_^. Owen V. Grtat \\\ stern Ry. Co., VII, 156. Owens V. Breese, T.W.. ,^^'?' Owens v. Burgess, XII, 3,^0. Owston V. Bank of New South Wales, IV. 105 : \'I. 41;!. Paclnnan's Case, V. 230. Pacific Insurance Co. v. Catlett PadddU V. Winch. IV, 175, [76. Padston Total Loss, etc.. Re, 258. Padwick v. Hurst. \'I. 531. Page V. ,\ustin, IX. 633. Cooper, \'IU. 4S. Griffith. I. 628. Leapingwcll, I, 56. Young. T, S5. Ede, XT, (4. Folev, T.W.. 27=;. Marshall. XI. 105. Marshall, XII, iro. ^^'a1ker. I. 67. 68, 69 w Forsyth, XT. 455. IX, vn, 1,^3- VT, 540, Page v. Page V, Page V, Page V, Paget V, Paget V. Paget V, I'aget V, Paice V, Palmer Palmer v. Grand Junction K\ 170, T71. Palmer v, Hendric. II. 18'): \' 542: \'1II. 102. 19,;. Palmer v, McLcnnon. II. 360. Palmer v, Scott, I. 562, Palmer v. Temple. T. ^21, Palmer v. Thatcher, VII, 316. Panama, etc. Telegraph Cn. v. India Rubber, etc., Co,, I\", 240. Panton v. Williams, T.V.'.. ^^. Pardee v. Drew. T. .^^t,. Pardee v. Glass, IV, 3.1.), Pardo \-. Bingham, I. 3. Parenteau v. Harris, t, 50;: IX, 134. 187. 5j8: X, 23. 4."; I. Parish v. Parish, T, 326, P.-irk v, RiKv, \', 2?,'. P.irke v, Rilev, XI. 3^0, Parker v, Bristol Rv. Co , VTll. Parker v, G, W, R., VTl. ■., 11 ; 184, 30,1. TX, OASES JUDICIALLY NOTICED. xlix 278. V. Hill. I, 667. V. Howell. VIII, V. Jones, V. 70. V. Kctt, 1, loS. \'. Manliaiii, VIII, ^')y. V. McUwain, XI. 30J. V. Odette. I.\, s^s'. Parker. \'. J47, _>4S, Ptirele, X, 503, Thomi)Soii, II, J2H. Watt. \'II, Oy, 70. Wiiijijw. T.W'.. 121. Co. V. I'arkershurg. Parker Parker Parker Parker Parker v Varker v i'arker v Parker v Parker v Parker v Parker \ I 'arker v P.irkersbttrg 'ia iX, 239- Parkes v. St. (ieorge. V. jii. jiS. Parkins v. llawkshaw, VII, 247. Parkiitson v Ilanbury, IV, iSi. Parknwuii v. lliggin.s. \'11I, ii)2. Parks V. St. George. IX. 85, 86. Parmentcr v. Webber. I. 22S. Parnell v. G. W. Ry., \"I, 556. Parr v. Attorney-General, 1. Joo. !'ri!iy ■. . Duncan. IX. 5(j_'. i'a!"v v. Wright. IX. y)(). Faoo.' V. Sexton. II. toy. Parsons v. Brand. XI. 467. Partheriche v. Mason. T.W., ,365. Partington v. Attorney-General, II, 167; VI, 437. Partington v. Reynolds, VI. 176. P'artridge, Ex parte, T.W.. 153. Partridge v. Copp, \ I. 3-I. I'atcliing V. Dubbins. \'I, 41 > Patent File Co., Re, XII, 004. Paterson v. Manghan, I. 5y6. Paterson v. Miller. Re. W. .}oo, Paton V. Wilkes. IX. 68. Patrick. Re, V, 140. I'atrick v. Shedden. \'III. loi. Patschneider v. (ireat Western Ry. Co., I, 498. Patterson v. King, .\I, }oj. Patterson v. Kingslev. VIII. 4;^,, 4^4. Pattinson v. Luckley, II, 283. Patterson v. Robb. XII, no. Patterson v. Todd. IV, '417. Patterson v. Willesley, IV, 240. Paul V. Travellers' Ins. Co., X. ^30. 553- Pawlett V. Attornev-General Hard. n. 3(^1 Paxton V. Baird, IX. no. Payne. Re. VI. 155, T50, 162. Payii V. Fern. IV, 141. 148, Payne v. Goodyear, \'il. 4^8, 460. .}62. Payne v. Rogers. I. j()5 ; IX. 480. Payne v. Revons, 'i\\\'.. 7(j. Payne v. Wriglit. Xll. (y^p. Peaceable v. Watson. T.W., 347. Peacock V. The (Jueen. I.\. 152. Pealer \. lIislo|). \'l. 1 14. Pearce y. I'irc.oks. \', dj. 71. Pearce v. Creawiek. XI, 50J. Pearce v. i-'cster. 1\'. 4: V. 7y. Pearce v. Wait>, VI, sy7. Pearcell v. Brierlv Hill Loeal I'.uard. XI, 113. Pearl v. Deacon. X. 38^,. 5,S4. Pears v. Williams. VIII, 48^, 488. Pearse v. Cole. VI. 600. \1H. 35-'. Pearse v. Morrice. TA\'.. 103. Pear.~on, Fx nani-, XII, 412. Pearson v. .Mason. IV. 67. 167. Pease v. Xorwuod. VI. 290. Ji)2. Peck V. Phippon. .\. 645. 648. Peek \-. Derry. \'l. 147. 150. 153; .\, 163, 166. Peel. Ex parte. I. 120. 126. Peerless, Re, X, 33^). Peers v. Oxford. IX. 172. 431. Peg V. Misden, II. 271. Pegg V. I'jistm.'in. .\. 422 Pigler V. Hislop, XMI. 5S Pellicant V. Angell. V. 66 Pender. Re. VII, 184. Pender v. Bryne, II. 104. I'enh.all V. Fhvin, IV, ti6. 133. I'enhallow v. Mersey Dock- Trustees I\'. too. Penhollow V. Mersey. XH. 418. Peini V Lord Baltimore. 11. 3(x). Pennell v. Dawson, TAW, iy8. Pennell v. Reynolds, TAW, iy8. Penny, Ex parte. I. 518. Pen.ose v. (iril'tiib. I, 318, Pent jse v. Power. I, 206. Pent in v. Great W^'Stern Ry. Co., 59. 6n. 67, 70. 40^ Ry. C .V4- of ' I eiuon w Rob.art, I, 34r. iVopK' V. Baker. \'f. 312. People V. Cliapin. X I. 37c People V. Common Council ot 1 roy, XI. 37(1. Peopk- V. Kane. I\'. 319. Peojile \\ Koeber. IV. 318. People V. Law. V, mo. People V. X. V. C. & H. R. .'R. Co., I. 212. People \-. Stephen";, V. J2. People \-, Sup.r\ isrirs of Chenangn, \'. 2fi0. i'eople V. W.ilkir. X. 698, I'eople V. Walker, XII. 265. 1 CASES JUDICIALLY NOTICED. V. JiilUl \-. (iraiil. rVople V. ^X'illis. I\'. 51a People's Bank (if llalifa: stun, X. -'83. People's Loan (J: Dep. ('<> VIII. 117. [\(). IJI, 2U 71; X . 40 1 , P'-"--,lue V. CiiiiunKR-niisy. XII. .\i,. Phcljis V. Prothers. 1, 3(19. Plielps V. Si. Catherines R. Co., IX, Phelps V. Taconia. XlI. 2()3. Philade-lphia, Wilminglmi iK: Ralti- niore Ry. Co. v. Quigley, II, 233, Pliilips V. Biron, X I. 4(10. Philips V. Cole, XI, 211. Philips V. Rnsell. IX, 52. Philips V. Fo.xall, IX. 171. Philpott V. .'\dams, T. \V., jjq- [. 247. Philpott V. .I(Mu>. I, .?7y. Philpott V. St. Ge(n-ge's Hospital. I. 143; VH, .:iI3, riiillpiilts V. Croncli. I\'. 483. I'hillpotis V. I'hillpotts, \ , 2,?o, 2,^. rinllips V. Houth, \ 1 1, 42c). i'hillips V. Bury, I, 571. rhillips V. C. P. R.. II. 8. rhilhps V. Claggeti, \111. 44S, 430. Phillips V. Clarke. I, ifio. I'hillips V. Pyre, II. .^30: \l. 4.^ I'lullips V. Gutteridge, \lll. ,?,^ 38; IX, 399. I'hillips V. Phi!li|)s. \'I. --,,v. Phillips V. Richard, \1. 412. Philli|)s V. Prentice, VIII, 283. Phillips V. Royal Xiagar.a Hotel, 1, i hillips V. Smith. II. 227. 22^). I'hillips V. Thompson, T.W'., .^70. I'liilipson V. I'lgrcniont, VIII, 163. Phil)ps, Re, V'l, 122. 127, 129, 132, i'hipps. Re, Vni, 372. 384. Phosphate Seiwage Co. v. Mollason IX 292. Picard v. Hine. I, 2;^. Picka!d V. Sears, T. \V.. 19. 7?,. IV .^03: IX, 353. Pic-cering's Case, I. 447. Pickering v. Bush, \lll. 170, 317. Pickering v. Dowson. \|. i.\j, 133. Pickering v. IIgraeond)i" R\ . I. 3()o. Pickering \-. Ilgr.acon Die Rv. Cik. IX. 4.^7. Picket v. I'acil^c .M. P. Ins. Co., X. 550. 553- Pickett V. Loggon. \1. 137. Pickford v. Iv.vingion. I. 21J3. Pickstock V. Lysier, T. \\'.,"i9r); H, 99. i^ietou V. Geldert. XII, 483, 6-^0. Pierce v. Boston. IX, 337. I'ierce v. C'lnavan. I. 39?); X, 381. I'ierce v. P;dmer. X. 318. I'iggoti V, I'.irtles. T.W'.. 1 41, "d. Pink. \ir. \ . 138. i3(j. l'iid\hiond v. Lakeman. III. 44. 85. Rayner v. German, T.W., 78. Rayner v. Ritson. VI, 222. Read v. Legard, V, 149. Read v, Nash's Case. V, 279, Read v. Prest, III, 652. Read v. Whitehead. I, 180. Reading v. School Board of London, V- .147. .155- Real Estate Qo. v. Metropolitan Building Society, X, 507, 511. Real Estate Loan G>. v. Molesworth, III. 415, 572: IV. 249: VI. 613; X. 668. Redclifife. Ex parte, — , 148. Reddell v. Showev, VlII, 410, 412. Redfield v. Wickham. IX. 7. 246: X, 115; XI, 4.S. Redgrave v. Hurd. VI, 147, 149. Redgrave v. Hurd. VI, 147, 149; \TI. 115, 116: X, 75, CASES JUDICIALLY NOTICED. liii Redliani v. Beaumont, VllI, 244. Redmaync \-. Burtnn, XII. 44^. Redmond v. Smith, III, 505. Rcdondo v. Chavtor, X, 571 ; XI, Reed V. Blade,s, T.W.. 200. Reed v. Boardman, III, 157. Reed v. Home Savings Bank, IQ5. Reed v. Reed v. Reed V. Rees V. 7- IV, Lamb, VI, 535. Mousseau, III. 70, 564. Tyler, XII. 265. Attorney-General. IV, 340. Rce.s V. Overbaugli. II, 285. Reese River Silver Mining Co. v. At- well. III, 656. Reese River Mining Co. v. Atwell. X, 420. Reese River Silver Mining Co. v. Smith, I, 48. Reese River Mining Co. v. Smith, X, 8r. Reeve v. Attorney-General. II, 369. Reeve v. Brown. VIII. 307. Reeve v. Whitmore, VI, 362. Reeves v. Barrand, III, 230. Reeves v. Butcher. X, 427, 428. Reeves v. Cappen, X. 345. Reeves v. Toronto. XII. 420. 432. Regan v. Jones, III, 239. Regan V. IMcGreevy, III, 427. Regent's Canal Iron Works Co.. VII, lOI. Abcrdale Canal. II, 384. Allan, VI. -^66. 59^. All Saints'. IV, 518- Almon, T.W., 315, 317. 324. Atkinson, IV, 281. Bailey, X. 500. Banes, V. 159. Banks. VII,' 617. 618. 622, Barnett. VII, .543. 347- 549- Baxendalc. VII. 268. liealc. VII. 616. ()22. 625; .^7-'- Beard. VII. 267: VIII. ^09. Beardsall. XI. -^('^2. Becmer, XI. 449. 572. Bell. V. 339, 340. Bennett. II. 3; V. 154. Benson, TAV.. lOo. Bertrand. X. 308. Birmingham, etc.. Ry. Co., Bishop of London. X. ■^32. Blizard. XI. (')r4. Boardman, VII, ^22. ^25. Reg. Reg. Reg. Reg. Reg. Reg. Reg. Reg. 634 Reg. V. Reg. v. Reg. V. XL Reg, V. Reg. V. Reg. V. Reg. V. Reg. V. Reg, V. Reg. v. Reg. V, [X. Reg. V. Reg. V. Reg. V. Reg. V. Bonter, VIII, 540. Reg. V. Bourdon, VI. 314. Reg. V. Bradford Nav. Co., T. W., 353 Reg. V. Bradlaugh, V, 340. Reg. V. Bradv, VI, 16. 473. Reg. V. Briee', VII, 622. Reg. V. Brown, VII. 44, 45. 167, 495. Reg. V. Brown, XII, 202. 208. Reg. V. Browne, VI, 122, 123. 131, 138 1.39. 142. Reg. V. Burtt. VII. 45. 49. Reg. V. Burah, XU' 350- Reg. V. Burdett, III, 2. Reg. V. Burke. VIII. .^2. .384. Reg. V. Burnside, T.W., 289. Reg. V. Butler. XL 615. Reg. V. Byranijce. X, 308. Reg. V. Calloway, XL 615, Reg. V. Carrnthers, VIII, 495. Reg. V. Cartworth, XL 455, Reg. V. Caswell, VI, 589, 392, 593- Reg. V. Catherwell. \'IL 619. 621, 625 Reg. V, Chamberlain. X, 277. Reg. V. Chisholm. VII, 631. Reg. V. Chublie. II. 341. Reg. V. Clarke. VII, 343- 344. 546. 549 Reg. V. Cnllins. VII. 43. 49, Reg. V. Coney. XII, 194. Reg. V. Connolly. XL 401. Reg. V. Connor, II. 346. Reg. V. Conway, XI, 338. Reg. V. 17 Corporation of Cornwall. Ill, Reg. V. Corporation of "S'orkville, IV 96, Reg. V. Coste. XL 401. Reg. V. Coulter, X, 306. Reg. V. Court. I, 269. Reg. V. Craar.! of Health. T.W., 355. Reg. V. Day. VII, 632. Reg. V. Dean III. 381. Reg. V. Dean and Chapter of Roch- ester. Ill, t,-2. Reg. V. Demiing. XL 222. liv CASES JUDICIALLY NOTICED. Reg. Reg. R^'g. Reg. Reg. Reg. Reg. Reg. ;. Ill, Reg. V. Reg. V. 208, Reg. V. Reg. V. 545. Reg. Reg. Reg. Reg. Reg. Reg. Reg. Reg. Reg. Reg. Reg. Reg. Reg. Reg. Reg. Reg. Reg. Reg. 258. Reg. V. Reg. V. 258. Reg. V. 386. Reg. V. Reg. V. Reg. V. 621, Reg. V. Reg. V. Reg. V. Reg. V, Reg. Reg. Reg. Reg. Reg. Reg. Reg. Reg. Reg. V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. Dodcls. IX. 204. l;olby, T.VV., 183. Douglas, XI, 336. IJiuiuette, V, is6. Dunn, T.W., 82. Dunning. VI, 16, 18. Duinion, VII, 45, 49, 52, 498. Dyer. III. 587. Edmonds, T. \V., i^'2, 183; 369; VII, 26?, 264, 2()6, 268. Elliott, V, 58; VI, 473. 476- Essex, VI, 197, 199, 204, 205, 2og. Everett. VIII, 488. Fadcrinnn. VII, 537, 543, 544, 547. .S49. 35-'. 553. 562. I'-arrant, XII. 213. Eennell, I. 268, 269. Ferrington, VI, 474. Eick, VIII, 55, 65. Flannigan, VII, 253, 266. Flory. XI, 225. Ereakley. XII. 512. Freeman. IX. 204. Frowley, VIII, 306. Fuidge. V. 339, 340. Gamble, T.\V.. 294. Garvey, X. 278. Clihson, VII. 5,43. 547. 549. Giles. VI, 83, 87. Gnodall. VII. 267, 269. Goulais. VII. 45. 49. Gould, I. 265. Grannis, VIII, 343; XI. 310. Grant, XI, 222. Great Western Ry. Co.. IX. Great Western Ry. Co., IX, Greenwood, II, 342. Guise. III. 16. Guthrie, VII, 6m. 617. 619, 625. Hagerman. VI. 83, 87. Hall, III. 4: VI, 475. llalloway. II. 342; X, 502. Harding. I, 2~^. Hare, T.W., 108. Harper, VI, 84 Hartley, XI, 6x6. Haslan", IX, 97- llaugliton. VII, 102. Hazeii, Xll, ~,7.l- Ilearne, V, 3,39. Heiiderslioit. XI, 403. Ilcnne^^sy, \'I. 462. 464. 466. Reg. V. Reg. V. Reg. V. Reg. V. Reg. V. Reg. V. Reg. V. Reg. V. Reg. V. Reg. V. Reg. V. Reg. V. 543- Reg. V. Reg. V. Reg. V. Reg. V. Reg. V. Reg. V. W.. Reg. V. ' 195- Reg. V. Reg. V. Reg. V. Reg. V. Reg. V. Reg. V. Reg. V. Reg. V. 207. Reg. V. 455- Reg. V. Reg. V. Reg. V. 15-2 Reg. V. 384. Reg. V. 310. Highniore, IV. 314; X, 3.39. Hill, VI, 463. Hodge. VII. 527. Holhrook, II. 24. Hoii, XI, :^i<-. 570. Hoodless, Xll. 509. Horlon, XII, 573. Howarth, V, 155. Huggins. XII. 201. Hughes, T.W., 184. Hughes. XII, 3,22. Hull & Selhy Ry. Co., Ill, Hulme, XI, .387. Hume, X. 264. Hurlev. IV, 514, 517. Ingalls, XI, 228. Inhabitants of Bartcm, X.242. Inhabitants of Everdon, T. Ipswich L'nion, IV. 13; \'l. Reg. Reg. Reg. Reg. Reg. Reg. Reg. I Reg. Reg. Reg. Reg. Reg. Reg. Reg. Reg. Co. Irwin. IV, S14, 517. James, Vllt, 380. Jameson, IX, 204. Jarvis. V. 64. Johnson. VII, 44. 45, 49. 498. Johnston. \'III, 3.'^o. Jukes, V, 64. Justices, etc., Dublin. Xll. Justices of Hampshire. XI, Justices of Ilanfills, \', 155. Justices of London. XI. 135. Justices of Middlesex, IX, XI, 22,V Justices of Shropshire, fl, Kemiedy. \', 154; \'III. 309, Kenilworlh, VIII. ^7^. Kerr, Vll. 543, .S44. 550. Klemi3. \'II. 44, 49, 166. Kletiip. .\!I, 213. Labouchere, II, 24. Lacombe. VII, .3jj. .^45. Lancashire & YorkshiiC Ry. , IX. 386. Latham. II. 360. Law, XI, 571. Lawrence, VII, 526. Lawson, II, 25. Layton. II, 357. Lee. VII. 263, 267. Leeds. I\'. 261. 269. Lefroy. T.W.. 313, 320. 329. CASES JUDICIALLY NOTICED. tr I Ki-R. V. RcK, V. Kc-K. V. K>'K. V. KcK. V. K'l'K. V. Ki'K- V. IvvK. v. ■■ft-K- V. Ri'K. V. Rvg. V. l-toK. V. l.l'lllioN. \ I I. m. I.loy.l. XII, Jiu. l.ia'ali. \'l, K. McAulc'v. XI. 44«- .V-'- MrDnnald, XII. iv;. Mcl';irl;mc. \', 84. Mi-diMtli. XII. lO.v .\l(.'(irc'evv. Xl[. 34. Mclhoy.'VIII, .^1. McKonzif. \'l. 1^. id. McNal). IX. MS." Ma.li'.cn. XI, 403. Maiiiwarinjj. IV. .140. CfiJC. Ma I'nioii, VI. 4,?. <.Vii. X, Matichestor. .XII, 5j6. Maiiclu'stcr iK: Leeds Ry. C< .S44. Reg. V. Manning. \'l, 1.^0 ; \"II 547. 550. 5.5.V BCi^- 5(\^' Reg. V. Mansfield. 1. _'6o. -'71. Ret;. V. .Marshall. 11. jr,. Reg. V. Martin, \'ll. 544. 545. 34S. Reff. 550. 5''>-- M:i irlvhone. III. Reg. V. Maihesnn. VII. 522. Reg. Reg. Reg. R t'g- M; M M .M Hirer, \' i.U ayor of Chester. V. 4. lynr oi ivor a l)e: VII. _'f.; nd Justices of Deale. XII. 106, Reg. V. .Meheg.-m. \'1I. fiK), 6jr. 625 Reg. V. Meilor. \'II, 3.},^. 544. 546. 51), 5''ii : X. 305. 54«. .^1 1 4- Meyer. VII. Jf.7 ; VUl. ,V')S .V>')- Mi;ird. X'lll. 404. 40=;. 4<)(' Millard, \'ll. 4<)_'. V. Monek. \'ll. Keg. '^cg. M M oruai 1. \'ll, jfu, _'64, Reg. V. .Mort( orrisoii. \'[I. 544, 345. 54(1 77: \'I, i,^S; XI Reg. Ml Vi. i,u l\eg. V. .Murphy. .X. 30S. 31; Reg. V. Murney, .XI, 614. Reg. i\ elsnn, T.W . 89. Reg. V. Ne\ \'I. 22. Reg. V. Neville. 111. j. Reg. Reg, Reg. N Xi UI ieliol, \MI. 632. 4- 34.3. 546. 54"'^. 56.V, \'II, 547. 33;. Reg. V. Organ. VII I. , 554. S('- .^,?7 33(). 3'ij R O sier. XI .'6, ,^30. ,^31. Reg. V. I'.itlrrxin. \'ll. 344, 343. 330. Keg. V, I'aui, \ll, (117. (130. ()3I. (13,?. Reg. \. I';iyiie. III. 4. keg. V. I'eirie. \ll, .jO, Reg. V, I'eli!tni;ingin, .XII. 207. Keg. V. I'hinsi.ll. II. 23. I\ii;. V. I'onk', X, 3(12. keg. V. I'i.rltr, \'l. 18. keg, V. I'ratt. III. 172: Vi, 77- «u, I Ho, Reg. V. I'lattern, \'. (14. Keg. V. Pr- iprieli rs .1 the un Journal, H. 26. r ()i roud. X. 2(ig. Keg. keg. Reg. Keg. Reg. a;iis:iv, 111 \II 200. 4'». Rand, .XII. 10. 213. .Ottlllg- V)>^, \'l (13(1. ^ Reg. V. Reg. V. (j8. Reg. V. Reg. V. K'eg. V. Reg. V. Keg. V. Reg, V. Keg. V. ih\arl, VII, 2(>7. Slew an. \I 11, M)'). Stikex II, .15/. Stones. Ill, J. Taylor, .\11, 3Q3. Taylor, III, 3; VII, f.jj. ().'5. Thomas, VII, 617, (u?. Townsend. Xll, HJO. Train, I.\, 263. Turner, 111, 2. Vestry of St. I'ancras. IV, W'gina, VI, 202. 20^. Walker. VII. J67. Wallace, \ll, 44. Walton, VIII. 4(J3. 4^)5- 4U'>. Walton, Xll. 137. Werdic, X. 311. Warlow, XI. M5. Warringh.'mi, I. 261J. W'ason, Vll. 51S. 3-'J, 524, Watson, T.W',, 202, 325. Weal;iiid. \'l i, Or7, h^i, O^j, ^ 637. Weaver. Ill, 4J3. ^ Webster, XI, 360, 423. Whaler. II. 303. Wheeler. XII. ill. White, T.W'., 224. Wliilbread. XII, 526. Whitehurch. XI, -,7-- Wilkins(in. ''.'. W., 317. 331 : 25, 26. Wilson, T.W., 47: If. ^.=i- Winsor, XT, 335. Woodhall. VII, 621, 625. York. Xe'vcastlc. etc.. Rv. .IX, 37S. York & Xorlh .Midland Kv. . VII. 3,^fi- Y.iung. Vn. 267; \'1II. 300. \. Magrath. IX. 202. He! fast, IV, -nj. Crcighton. X 1. 464. McDonald, IX. 85. .Murphy, X, gi. Reid, XII, 391, 653. Reid V. Stephens. V, 2, ft. Renaud, Ke. VIII, 14, iT). Renaud, K\ parte, Vll, 274, 2()o, 307, 318. Renaud v. (i. W. R. Co., II, 10; 556. Renncll v, ReyiiohU, T.W., 201, Renter v. Mlectrie Tel. Co., T. XVJ; I. 34.t; !'• ,?"): IV, ()\ 88, 102. i;-.;'i'!' H- of Costa i-iica v. h'.r IV. 403; IX. 61. Kcpublii' of Liberia \'. Iniperi.-il VII, 420; Vlli, 403. Republic of Lilieria \-. Roye. 403, 405, 506. Retallick v. Ilawkes, III, (.74, Retemever v. Oberimdler. .\I. 296, VI, vv., VI, anger. Bank. VIII, 261. Reynolds v ' 553. Key nobis v Reynolds v .\ccident;il Ins. Co., X. il i r.eerlnig. 111. Railroad. \'I. Reynolds v. Ro.\burgli. 1 \' Rex V. Abergele. VII. 4(1. Ke.x V. Adderley, T. 1S3. If.2, 27(> I5fi. Re.K Rex Rex Rex Rex \-. V. V. V. V. 371 Kcx V. Rex V. Rex V, Rex V. Rex V. Kcx V. Rex V .Abington. 11. 24. Barlow. III. 575. llirrett, X, 281.' I'.allnirst. IV, 266. Benehers of (irav's II III. ; VII. 2S0. Bciin. IIT. srr. Bingley. VI. 8^, 84. Bishop of Klv. III. ^72. Bristol Dock Co. Til, 26. Brook. VII, 263, 26-. Claphnni, 111. 15, Conuuissioncrs of Moekwobl Inclosures. IIT, =,7-^. Rex V. Davis, V. 133. Rex V. Dixon, TV. 405: Vll. _?2. Rex V. Dobsoii. X, 275, T^ex V. D(l\vn shire. IX. Kex V. Dr.ake. \'II. 247. Rex V. I'^.aiingtou, V. 274. 27(). Kex V. I^yrcs. TV, 322. Rex V. Follongicy, Til. 507. Kcx V. I-'owler, X, 314. Rex V. Filcwnod, VTT. 260, 264, 263. Rex V. Crate, VI. 84. ivex V. Creat Xorth of Fjigland Rv. Co., II. 255. Rex V. (Ircene, VTT, 102. Rex V, (llossnp, \'', T55. I-Nx V. r;riesby. VlTI."3o8. Rex V. Magcl, VI. 475. Kex V. Hare, TV, 520. CASES JUDICIALLY NOTICED. tm V. V. R.N V. Rex RlK Rc'x 464 V. V. Rex \\ Ri'x V. Ri'x V. Ri'x V. Rex \'. Rox V. Rlx S'. NT. Rrx \'. Rex V. Rix v. 1^'X Rex V. \ . Rrx \'. Rex V. Rix \'. Rex l.\ v. I\' Rex Rex X, V. Rex Rex V. Rex v. Rex Rex Rex V. V. V. Rex Rex V. v. Rex Rex V. V. Rex V. Rex \'. Rex \'. 1^'X V. Rex V. Rex T^ex V. V. Rex Rex Rex Rex V. V. V. Rex V. Rex -195 V. Rex Rex V. V. Rex V. I laivey, 1 1, -'.}. I I:il\vn(ii|, III, 17. Ilaui^li, I. ,Vii I laveriiii; Alie linwev, \Mi, I iii^'liinore, \'l, 475. Hill. \III. ;S7. vj6. linltnld. III', 15. I lnll;ill(l. X, jyn. lldwell. \ll, J(),?, _'()4. j()5. lluKJies, \'l, i.vj. Inni'ain, 111. I.S- iiiliahitaiiis i\\ Clare. XI. 451,). Inlialiitants of '\\';inniiister, 5«'J. Ives, VII. JhS. James Gordnn, II, {jo. .let't'ries, X, ,^,w. Jenkinson, \'ll, _•(),!, jO}, _■(■)(), IlllK'S, \'II, (1I7, ()_'(). 'liulil. \'II1, ^7(.. jukes, XII, 527. Juslices (if ( aniliridReshire, J58. Jnstiees of 1 luiuiiij^dnnshire, Justices (if \\'i)reesleishire, 257. Kealin,tc, \'II, .^/.v Kerrisiin. III. ju. Larrien, If, 2O. Lireiisiiiif Jusliee>, XI, 576. LdiiK, VI. 47.^ 474. Ldxclale. \'ll, 304, v^ it-. Lvoii. VI, 84. Marks, n. :;(). Mareliall. XI, 016. .Milvertoii, IX, J58. Neilierseal. X. 1X4. Dates, X. .?ii. Owen, XII. ,yi. Panv, III. 2(jQ. Paul, XII. 512. Poole, y. ^60. Rees. X. 281. Ropers, IV, 40.:;; \I1I, 3i_'. Ropier, \'II. -_M. Rnssell, III. L'5.' Shaw, \'. 154. SherilT of Kent. .XI. .^.u. Southerton. VII I, 4r),:;." 4()4. . 4')^- 40<:)- .Soiitlierion. Xlf. 156. Stephens, X, ()()6. Stone, VIII, .3,30, Sutton, X, 500. Kcx Rex Rex Rex Rex Rex Rex Rex Rex Rex Rev 1 1 el I V ReyiioliN Reynolds Rhodes V Rhodes V Rhiides \- Rhodes V Rhodes iX, Toa.|ue. \'I, X\. S6. Teal, \I1, _.()5. 'I'l phain, 1 1, J4. f ('ambridgc. I nut rsitv 11. Tll. Wddnian, III, is. Wilkes, \'||I. ^76. Wallace. \II, .si. Williams, ill. 17. Wrottesley. \lll. 48S, Wyndham. \1I1, ,171). Siirye. XII. jjj. V. Howell. 1 ,i"o, ,^,01, V. Wedd, T.W., J(i Dawson. I\', ,^nj. V. (ient, 1 1, J7S ; 1\' v. Hull, IX. .U>y. V. Innes, IX, ,^.3. V. Liverijool Com. I 6.U Rhodes V. Rhodes, Rhys V. Dare Val \'1I, 406. 4i_'. K'idpeway v. Robert Rice V. (iordon. Ill M7. Rice V. l-;ice V. Rice V. Rice V. Rich V. Richard Richard Rich.ards, Ricb.'irds Richards Richards Ri(diards Richards Richards T.W. ->8.^ ley Railway s. .\l 1. J(>r,. 1. 4o() ■ \l. , Co.. Co., M ■ . .Murray, II, i ^6. R:ce. il. 185.' She[)herd. VI, J17. dale, IV. ,^67, ,:)72. V. Jenkins, XI, 206. v. Johnston, XI, 206. Ricli.'irdson, Richardson 152. Richardson Ins. O Richardson Richiirdson Richardson ichardson ichelieu I .^^86. 589 Re. HI, 07. Brown, \'l. 40. Cli;ind)erlain. 11. 211. James, III, if),^ Jenkins. \'ll. 214. Richards. I.\. 40 v Svmes. VI H, jji'. Re. VI f. 184. \-. Hank oi bjigland. X, -t I'^arniers' Canad.-i We< X. 6o(), 61,^. Did)ois, V. 149. Cray. HI. 4,^5; IX. 85. Marine Ins. Co.. \^, 70. .Mellish. VH. 367, .S71. lection Case. Re. VII!, 50.1, 601 ; IX, 514. icker V. Rickcr. II f. 6 idles V. Va.pcr, Xf. .S02. idles V. Evans. T.W., rg6. ichmond v. Evans, VI. 305, 310; VTII, 198, 308. o. IMAGE EVALUATION TEST TARGET (MT-3) /. ^ 1.0 I.I 1.25 ^;;IIIIM IM ■ IM IIIII2.2 m 12.0 U III 1.6 V. -.* •«& fA o^ ^^ Iviti CASES JUDICIALLY NOTICED. f RiilitiiMiid \. I''v;m^. XII. ()4. KiclmiDnil \. I'ructor. I, ,v?'i. Kiiki't V. .\Iilr.. VL .|o,5. 405. .|io. Ri|)sU'iii V. Mrin-li ('aiiadi.iii. •.•:<.. In.. I.\, ,^17. .34S: \. _'.^.v .t7(;. !'!i^■l^ \'. Slioiiiaii. I'.W.. _'i)i. Riuliir \-. .XtkiiiMiii. T.W.. J'M), Rilciiif V. Smitli, 1\. J17; \'. (i(). 67. rvS, 70, Rilidiii' V. \'.-iii (icldir. X. Knj. Uitcliiu V. W'diilnn.uinn, \'ll. .;fi'). Ri\c'r .'■It.'ui' (11, \'. .Sill. \'l. )t, (. 3'm 3'.^ .=^14- . I\i\ir W'l.ir C"iiniiiu>>iiiui> \. .\dam- Min, \'II. ,^.v). Rnli.utS V. liidl, III. \Tt: RnJH' V. Rdd. II. J.)3. Iv'lii'rls V. liiiii', \', _'4 V Riilnrls \-. DialJi. \ . J04. _'(i3. jdfi. R'lliiTts y. \'.\;\ns. IX, 171). RmIhmIs v. Cianiic. III. 1 ;i). Rolicrt^ Rnl \V. R. \l. 170. 1; HTl- \UI) iin;ii(l X. RiiInTb Rnlicrl- l\i>lllTl • M.ircliaiid, 111. i_>.v Walkrr \' \'l. 34^. '.i?. -'.M <^l)^•^t'^ V 'Jiilicit'-nn lnTtsmi Wvalt. X. q3. ?4''^- Ri'. VI. 117. \. Carltiiii. X. -4-' RoluTtson V. Connvnll. \'i. 1. 4; \'\\. jyj: \'in. 1)7, i.^j: XI, .?nS. Rnlicrtsiiit V, I) nmar("-( I. I. -'4: VII. RoliiTt.'ioii V, F.astliiipc. XI. j_'() Rlil)lTtsll| 1 V II (ill;i lid. \'l, 31hti ■-OM Riiliorlsiiii V, .Mser; MrMi'.ills, II, _'()(). 194, R<)l)crl^i>n V, X'l mis, XII, 74. Ri)l)(.'rl'.iin7. Riuiu' V. Roilu'. IX. (lofi. Rni-lifollcr V, DoiuK'lly, \', 10, Riickwniid EK'ctinii Ca-^v. Ri'. .54.=^ Rnhiiisoii RdllSOIl \. I'.V Xll. 44^.. r(i kcr. Xll, 10. RotlVv V. (^ircHiiwcil, 111, ji- CASES JUDICIALLY NOTICED. m Rogers v. Challis. T.W., 379- Rogers v. Hadlcy, XI, \02. Rogers v. Horn, XI, 146. Rogers v. Maplcback, T.W., 108. Rogers v. Payne, T.W.. i-'o. Rogers, III, 65J; X, 13 Rowe, U. 206. Shortis. VII, 24'-. 249. Thomas, VI, 27I). Rogers Rogers Rogers Rogers Rogerson v. Ladhrooke, III. 163. Rog^er V. Servdon, \'I. 22(). 234. 235. Rdlide V. Tliwaites, IV. 505. Rolin V. Stuart. IV. 209. Holland V. Hart, VIII. 240. Rollins V. .McHaiton. XI, 20. Rolls V. St. Cieorge. IX. 231. Ronald and Brus>els. Re. XII. (121. Rook V. Schofield, XII. 65?. Roscanick v. Barton. I\', 189. Ross V. Dunn, XII, 169. Rose V. Grovfr. III. 27. Rose V. Mope, II. 1 75- Rose V. Sinitnernian, I, 14. Rosenljuriiiier v. Thomas. \'. 225. 227. Ross V. I':iIiott. T.W., 202. Ross V. Fox, \'II. 210. 214. Ross V. (Irange. II, 50. Ross V. <(ireen. XI. 0. Ross V. Harvey, \'\\. A7^- Ross V. Rastali. III. 299. Ross V. Ross. XI. ?6. Ross V. Scott, I. II. Ross V. Torranci', \ I. 40. 45. 58. 517. Ross V. \'an P.tten. \III. 2W1. Roth V. Huffalo \- State Line Ry.. HI, 498. Rotherham v. l'rif>;t. X. .!;94- Rothes V. Kirkcaldy Water W'ovks Cfiinnnssioners. \'ll. 337. Rothschilil V. (Jticen of Portugal. VII. 431. Round V. lull. T.W.. -7.-. -77 RouMllon V. Rousillon. VIII. 1 12, Routledgc V. I'urrcll. T.W., 209. Row V. 1 )a\\son. I. 313. Rowand v. Tyler. \'. 19?- RowclilTc V. i-.Kremont. IV, .U^. Rowe V. Rochester. \11. 4.^<^- Rowthv. Howell. \'._ 146. Roxfuifghe V. Cf>N, XI. 655. Roval British Bank v. Turguaiid. IV. '6. Royal fatiadian Bank v. Mitcliel'. I, 219. Roval Cifv Planing Mills v. Woods, " XI, 258. Royal Insurance Co. v. Dufi'us, VIII, 55' 50- ^ , „- Royal M. S, P. Co. v. Braham, VI, 196. Rovle V. Wvnne, II, IQI- Ruck V. Williams, XII. 4-'.=;- Ruckmabove v. Mottichund. I. 3- Rudd V. Bell. V. ^72. Ruddell V. Georgeson. XI. 517- Rudge V. Rickens. VIII. 193 I99- Ruitz V. R. C. Episcopal Corporation of Sandwich. I, 361. Rumsey v. Buffalo, X, 228. Rural 'Municii)alitv of Cornwallis v. The C. P. R. Co.. VIII. 4^0- Busby V. Scarlett. X, 57. Russell V. Longstatife, VI, 341. 342. Russell V. Men of Hevon, I\ , 90. 97, 101. Russell, Re, V, 223. Russell, Ex parte. VIII, 281. Russelt V. East Anglian Ry. Co. X. 1 1<). RusH'l'l V, G. W. R. Co., II, 45- Russell V M.-icHonald, XI. (V- KiKscll V. Xichol. \'. .V)8. 40'). Rus-ell V. Queer. II, (>2\ : \'. 13; N, ;20. 330. Russell V. Smyth. 1 .\V., 279. Russell V. Thornton, VII. 397 Riis-ell V. Wells. II. ,V>o. Rustoiniee v. Tlie Queen. II. 37"; \TI. 21. Rutherford v. \\'i\A<. XI. }0(). Rv.in V. Whelan, \'II. I34- 437- 47^1. 307; VIII, 376. Rvekm.in v. \'an N'oltcnburg. IX. 417. Ryl;mds v. Fletcher. XI. 27. Ryiiier V. Cook. Xli. 237. St. .Andrew's ("ase. IV, 315. St .Xudrew's Election. Re. \'HI. 307, 30S. Si. Bonil'ace Election, Re. VIII. 582, ;i)i. 3i;4, 300. f>02; IX. 304. St. George V. Townsend. f, too. loi. St John V. Rykcrt, VHI. 117; IX, 71 : X, -10' St j(dm's College v. Toding'on. HI, St. .Michael's College v. Merrick. Ill, 633. St. P,iiicra< V. Batterburg. HI 34-'- St. Septtlchre. V.s. parte. III. 273. Saberton v. Skeels. X, T83. Sackville College Case, V, 192. 7 he CASES JUDICIALLY NOTICED. ■*■>•'•", m Saginaw Gas Co. v. Saginaw, IX. j.?(;. Sadler v. Robins, 111, 5m<;. Saiiislmrg v. Junes, T.W'.. ,V)- Sale V. Cninii)t()n, 1\', 4J4 : VI. iHo. Sally V. Ellison. V, 2(>S. Salnnian v. Stainian, 1, .^71. Salter v. McLeocI, V, ->g8: VIII. 403- SaKvay v. Sal way, V. 144. Sanii)son v. Paltison, IX. 67. Samson v. Jagcr, II, 284. Saiulback Charity Trustees v. Xorth Stafford Ry.,' V, 57, ?<;. Sanders v. St. Xuet's L'nion. T.W'., ,S.V); VI. 89. 103. Sanderson v. Bowes, IV. 426. 428. Sanderson v. Burdeit, I\^ 372. Sanderson v. MeKerclicr, IV, 492. Sander.son v. Procter. T.W.. 188. Sandfnrd v. .Alcock, IV. 350; VIII, 480. Sands V. Clarke, II, 27--,: W. 4i(). 428. Sandys v. Holder. HI. 080. Sanitary Com. v. Orlila. XI 1, 424. Sanson v, RlKjdes. III. 321. Sar.iant v. (iordun. \MII. 149. Sarm;i v. Great Western Rv. Co.. IX, •231- Clark, IX, 210. Davies. V. ,^(17, 376. Plaxton. V. 346. .\ston. IX. 171. V. Jndtje. II. 2;o: IV. Satcliwell V. Saunders v. Saunders v. Sanderson v Saunilt'r>on 30. Saunderson \- I. X, We-tley. Saupeen v. Church Socieiv V. 184.^ Savage v. Smith. XI. 480. Saxhy V. Saxhy. V, 135 242. HI, 201; .\ssurance Co.. Re. \'II. 2()l. IQO. Saxon Life 606. Sawver v. Basker\ille. XI. Sawyer v. Pringle. \II1. X. 055. Sawyer v. Pringle. XII, 378. 506 Sawyer v. Tiidon. \'I. 607. Say V. Barwick. I. 129. Scales V. Baker. X, 2^2 Scales V. Pickering. T.W.. Scarf V. Soulliy. III. 656. Scarlett v. Hanson. X. 00 Scartli V. Colton. H, 155, Schih-hy \. Westenholtz. I, ■ 00. 102. TOO. 10^. IO<). Schmidt v. PhmHu. XI. 604. Schneider v. .\gnew. HI. (^\^,. Schneider v. Woodworll^ \'in Schotield's Case, X, ^oo 11)2; 3''5 ,^0: VIII. 1 12. too. Scott V. VII. Scott V. Scott V. ScholK'Id V. Dickenson. VI. =41. Scholefield v. Heaticld. II, 155. ScholcfieUI V. Lockwood. IX. 'io,v Schoole V. Sail, H. i8y. Schreiher v. Malcolm, II. 172. Schroeder v. Central Bank. X, 173. Schuchardt v. Allen. V. .^f)Q. Schultz V. Alloway. X. 2^^7. Schultz V. Wimiipeg, \'l. 2'ii>. 427, 450. 516. 317, 5r8. 5H). 520. Schweitzer v. Mayluw. IX. 68. .Score V. Ford. X. 152. Scothorn v. Soi;th Staffordshire Rv. Co., T.W.. 258, Railway Crwnmis>ioner. Re, 403. 40O. 407. Bnrnham. III. O54 ; IX 443. Carveth. \'III. 4f)f). 467. 4fKj. Scott V. Clifton. IV, 107. Scott V. Clifton School Board.VI, 88, 89, 100. Scott V. C< 7; Scott Scott Scott Scott Scott Scott V. Scott V. Scott V 100. Scott V. Scott V 228. Scott V. 189. Scott V. Scott V. 'ation of Liverpool, HI. Dent, VII. 196. Griftin. \'III. 519. Hunter, \'I, 607. I luntcr, XII, 272. Imperial Lo.m Co 464. .McLeod. I, \-■^. Lloyd. \'I. 40. M.ivor of Manchester XII. IV. .Manchester. XII. Onderd nk \ll 425. . 47^-; X. Royal Wax Candle Co. III. Soans, VIII, 149. Trustees of L'nion School in Burgess, V. ^2. Sconler \. Tlowright. IX. '114 Scrihner v. McLaren. IX. 87. Scrilmer v. .McL.iren, XII. 410. 414. Scroggie \. Guelph. XII. 420. Sealirook \. Cave. II. 224. Scago V. Deane. II. 154: 111. 4 ;.{. Seal V. Claridge. XIL 0. Seaman v. I'.nrley. XH. 0;5. Scarle v. CIia|iman. HI. 553. Lane. III. 165: IV. 444. 416. Linds;iv. XL = V). Matthew-. \i. 299; VIII, Searlc v. .Searle v Searle v 4-'0. Secord V Secord v Sedgewick v. .-Mlerton. IX. 312. I V. C4'; Scwcll V Scuill V Scyinonr Scyinonr Scvnunir ; X. 4S.S. iSi. Brecon. IX, 4,^1. Xeuton. V'l. -77. .'04. \' . I. Jones. \'1II. 4S: V. V. V. Nosworiliy Sliarpc. it. I,:iwrence In< Co . \'I. 582. .Shaw V. Thom|)son. \'. 140. .Shcard v. Wehh. \'I. 4!J. Shcirni.in v. Rohins.n XII. i.'o. Shears v. R^niers, \'I. 510. Slu'ha Gold Co. \. Trnl>-li;uve. I.X. .^20. Shed.ien v. Patrick. VI. J48. Sheehy v. Profes-ion.'d Life \'-'-nr- aiico Co.. \'I. jio. J17; \I1I, loi ; IX. .^2. Shcelev Case. VI, 218. Sheffield Bnildinp; Society v. Il.irri- son. IX. 07. Sheffield Nickel Co. v. Cnwin. VII, in-. Sheffield Water Works v. Yeomans, III. 12. C, P, R. Co.. \1. (>. Fi^lier. I\". 241. 24,^ (irand Trunk Ky. lohnson. T.W llnrd. T.W.. i,:i4. I.edy.ird. I. t). (hiniston. II. 2q;. Perkin. 1\'. 5ig. 521. Pickett. IX. '},\7 ' Picion. T.W., 10. Rlmde-. \'. 145. 147, Rndden. \'l. 4.^ .'^t. I,:iwrence In< C SheiU V. (;. X. iC C- . T.W.. jji). Sheils V. Rait. T.W . 22i)e:n-. .\1[, (]y. Sherwi 111(1 v, Cline. X. ,^03. Slur wood V. Steven^. I\'. 4.'-t3. Shields v, McLaren. IX. 603. Shilliheer v. J.irvi-. T.W.. 24. Shinglcr v. Holt. \'I, 1 12. Shipni.an v, Cir;int. \'l. i.'^n, Shipinan v. Stevens. X. 2.14. 430. ; VI. S'lippy V. Derri^on. T.W.. ■ liirlev V. Watts. IX. 107. Shoolhrcd V. C'arke. XII Shore V. Larlv. \'I. r^o. Shorev v. Baker. III.' 242; \'I iS^i; XI, 4r,.4, Shfot V, Mill.ird, IV, i6x Short V. Pratt. \'I. .?oo. Short V. Rntt.m. XII. 410. .Shrewshur>- F.hction Case, I\', 204 ot. Traiipcs, 121 IV, .Shrew^hnrv. La VIII. 3 If',. .Shnhrick w S.alniond. T \\ Sihhald V. Bethlehem In- 30. C\^. '>7. Sihthorpe v. Brunei. IX. 116. .Sichcl V. Moscnthal. T.W., ,^j(). Sickles V. Pattisnn, III. jy.' Sidnrv v. Ranger. Ill, Ci. Siege' v, Chicago, etc.. Bank. TX. 626. .Siegers V. Evan>;. III. 661. Silshy V. Dunnvillc, I, .^48, Silver Lake Bank v. North. I. 184, 187. Sinicoe .*\gricultur,il Societv \-. Wade, VIII. .U3. Ixii CASES JUDICIALLY NOTICED. ■f I i ■'1 \ ' I 1 X, Simkukc v. Grand Ludgc. A.O.L'.W.. XI. 20. Simmon v. Bail, 1\', 510. Simmons v. Jolmson, l.\, 3J0. Simmons v. 1 kndeisun. V, Jyj. Simmons v. I Icscltinf, III, ,,»'i. Sinnnoiis v. Townsliip of Clialham, X, 5.15. Simons v. (I. X.W. Ry. Co,, XI. io->. Simons v. I'atclict. X, 20,v Sm-|)kin. He. IX. 152. Simpson, In re. X. 43^. Smijison V. I,)i-mori'. X. 181. Simpson V. I'"ogo. Ill, ,•14.'. Simpboii \. drant, T. W .. ^50; I. 151 ; II, 370; VII, 7; IX, 4'). 4"- Simpson \, (ircat Wi'stcni Kv. Co.. 1, 112. Simpson V. Ilartoiip. T-W.. 139. Simpson V. Ilnlchinson. 1. 15O. Simpson V. Lamb. I\'. 66. 67. Simpson V. (Jttawa. i-tc. Ry. Co 1 15. 120. I J-. Sims V. Thomas, 'l'. W'.. nji. -75: VI, 608. Simson v. Ingham. III. 378; \'I. Kxj •Sini'lair M.-iriiimc I'asscngirs' Ass Co., X, 545. 5C>3- Sinclair v. Howies. IX, 470. Simlair v. HrouKhto-.i. \'I. 265. Sinclair v. Jacl<-on. T.W'.. 275. Sinclair v. Mnlligan. \'I. 4(17. 469. 470; IX. 4L>-'- Sincr v. The (Ircal Western Kv VII. 156, I5(j. Sir I. -Moore (nAd Mining Co \'l, 106. .'"itwell V. Bernard. III. 5'). Svines V. llnglu's. \'. J^^. 234. :!M->. Simp-oii \-. Smith. I\', lyo. Sh.irl v. Sonlliy, X. 422. Skelsey v. Manning. II. 94. Skye V. Voyce. .XI. 2(*i. Skinner v. rpsh.iw. 1\'. S3 Skim It V. Athy. III. i5'i Slade V. Rigg, IX. 10. X, . Warde, I. 15. Canada Central Co.. Re, 23'. -.^^ VI. \(y(). Sl.iney v Slater v. -'H7. Slater v. Slater v. Ry. C' I. 28S. Centr;il Rv. Co. Ro>s. IV. ifx). Slaitery v. Xaylo'-. IX, 2,^7. Slaven v. \'illage of Orillia, In re. X. ?J2. Sleech v. Thorrinutoii. III. 54. Sleigh V. Sleigh, II. 277, Slim V. The (ireat Northern Ry. Co., I, 207, Slingerland v, Masser, .X. 454, Sloan V. .Mauglnn. VIII. 125. Smale v. Hntt. \T1I, 178, 185. 186. Small V. Xairne, II, ifKj. Smart, Re, XI, 258, 311, Smart v. Cottle. VT. ^40. ^41. Smart & .Miller, Re, "ill. '256, Smart v. O'Reilly. XII. (122, Smart v. West Ham Liiioii, T, W'., XV). Snnth. Re. XI ."^mith V ."smith V. Smith V. Smith V, 664. Siniih Smith Smith Smith Smith Smith Smith Snuth 29, Smith Smith Smith Smith Smith Smith Smith Smith ^o^. .\ndre\vs. XI. 628. .\shworth. T.W'., 141. Maker, III, 555: XI, 531. liaiik of Washington. III. Birmingham, XII, 432, Bog.iri. III. 657. Bonohier, XI. 469. Braekett. I. 307, Briggs. — , III, Buller. III. 556, C.inn.iii. T,W',. 198, Chadwick. \'II. iiri; XI. Chadwit-k. Clesihorn. I Critchtield. Cnimp. I\' Nil. ;;8, I. 112. \III. 92. 76, 106. Toronto. XI. 229. 162. Darlow. II. 64: IV. 2 Doyle. III. y:.7. Rs-t.x I'lstuarv Co., Ri- VII. Smith Smith Smith Smith Smith Smith Smith Smitii Smith Smith Smith 104. _ nith \ Smith V Smith V r.\ .in-- I-:yle-. I'urst. (.OSS, . \'I. J('l. 26f.. I. 4^4. 446. III. 6;;. \'I. -'74'. -77. (ireey. \'I. 600. (iioiutte. \'II. lof), I larriiigton. 1 1. 67. 70. 1 liiiderson. II. 48. I Milliard. \'. 427. IIill. III. ^o■^. Hull Class Co., IV. 6, 7, 1 09. Hurst. IX. 6-. : X. 421. Keal. IV. 141. 344. Land iSr House Prop'y Cor- poration. \'II. 116. Smith V. Mcdill. IX. 105. Smith V. .Ma'lett, IV. ^2. .Smith V. Manhood, I\'. 217, Smith V, Marcack. X. 64$. 648. CASES JUDICIALLY NOTICED. Ixiii Co., 16. \V., in. XI, VII. f., -. Cor- Smitli V. Midland Rv. In., I\, .jS; . X, I.', itii V. .\lilli>, X, iSd. nil V. .Mdffatt, T \V . _'(W. joj. Itll V. .Mnltoll, TAW, JIIJ. ilh \. \c;d. T.W , .<. , .Ni.nlitinnalc. II', ji;. nil V Odiiig, 11. ,:iS. lilt V. IVtiis. Ill, ^fk). nil V. I'hair. IX. S.s, itll V. rililip 1\. .VK). itlt V. I'limn iiT, \'l 1 1. 4(17. ilh V. rivmi)l()ii, .\l, jjS. ith V. I'lail, Xil, _'65. Itll V. K,dci«l), XII. "(Ki. nil \. KicliardM'ii, .\. oji), nil v. Rii-^ill, III, 1(17; XI, ,;2.>, ith V. S;iiii^l)iii>-. I. jdS. nil V. Srott. T.W , .!_'-•■ ith V. Siiiilh. II. no; \', 101. i;h v, Siiivili, XII, _'_'(!, 44.1, ;,:(M. ith V. Taylnr, \||. i,H4, is'f., '1S7. ith \-. 'riimiis, T.W'., miS. ith v. Tmr. III. J,V). ith V. Turnhull. II, jii.;. ith V. Wales Atlantic .Stcnnvhip Co.. Re. \ I. J5S. ith V. W.-iits, X. 5'iS. iili V. Wthhcr, .XI, Ji.^ ilh V. While, V, (17. nil V. Whiimorc, .X, (p7(). ilh V. Whittiii^diam, .XI, .'i 1 ilh V. Wilxon. T. W., _'(«); \ll. i.U. 144- ilhiir w Lc\\i>, IX. lofi. yth V. .'X. ily V. i.antiford. Ill, ()7i. lomoii \-. Ritiim. I\', i.^X. nch V. ,Stra\vl)iidi;i', 111, 441 iilc- V. I. it tic. .XII. ()jj. ' iit( r \ . I >r.ike. X, ^(K). nth .Nil-. Ills. Co. V. R.indall, XII. nth V, Rld.xaii, X. 5S4. nth h'..istcrii Rv. v. Rv. rmnmr^ , Xil, f.-'o. .S s .s .s .s s s s s s .s s .s s s s .s s s s .s s s s s .s s s s s s .s s s s s s s s s s. s. .S( s. Si .Siiiilh (ircy Case. II, 145. .Stiiiih of Inlaiiil (nlliiTy Cd. v. Waddle. T. \\ .. ,\_\<). ,Mti. .\.\i : I. .Smith lit Iril.iiiil (11. V. Waddle. Xil. 47.S. Smith .Xml'iilh \, \\ .ineii, l.\, 4i(S, (i.^o. Smith ( )iitariii C'.i-e, 1 1, 1.^7, South StafTordsinre Rv. Co. v. Hall. II. i<>5. Smnhainploii v. .Smilh.-nniiinii. .XII. 4-'.v Smitheomlu' V l'>i-lio;) nf I'.xeier. 111. 4(')(). Soiilhern Ry. lo. v, Jaek-'iiii. XI, ^.\\ Soiitlii>n>e V. Rale, VIII, ,\i)\. Southwell V. I'.Hwditeh, 1. oS, (mj. Smiiliwoilli \ . T;i\ lor. 1. loS .Souell \-, Chainiiioii, I\. .jov SpatTord v, Sherwood, \', uS. S|)ai.i;lit V. i'attersoii. 1 11. S. Sp.ini V. .Ariiott. Ill, jy \ \' . 71). Spar^o^' Case, V, .?S7. .spark-. Re, \ I, ji, jtj. ,V)S. Siiarlali v. Heiieeke. \ II. ^,\.\. Spears v. Ilartly, ,XI. jijj. S|iei^'ht V. Taunt, \ , i.io "^i-eiiee. Re. I.X, _' ) Sp- nee V, lle.ily, T \\ .. u.^. SpePve V. I lector. \ . ^iS. \S^. Spier> V. Parker. Ill.'j; VIII. .v.. Sptirr V. Hall. II. _'if). Si|iiire \. .Momiey, l\'. 4(14. Sl.iekpole v. ( )'CallaKlian, 111. 4.V). Stadhard v. I.ee. T.W,. .'70. StalTord I'ilectioi! C;isi', IV, J'l.V Sla^ti V. Knowles, 11, 107. Si;iinton \-. Cirrmi Co. X||, _■;}. SlaKy V. Iledwtll, \'l. in. Staint'Mrd Hanknij^- Cn. \' Sinitli. XH, ,^0 St.ni'iier V. I'iekerin^;,\■|l I, \\. u. 44- Sl.inhr... Ri, \|, i.?4: \'|II,",?7.V .^S.v St,iiid;iril Rank v. I'loiilton, I. _>_•_• Si;ind;iril .Mamifaeliiring Co. Re. IX, -'14. . Ixiv CASES JUDICIALLY NOTICED. Siaiiticld V. M;iv ( ;iso, \'J1, .SS, g;, <»S, Stansli'ad l'',Ktlif)ii Case. 'Ilic. \lll, 47.T. 4"''' 5'*^"^. .^'"^'i. .^"'-' '""'• '""■ Slaii>U-iiil l^lictidii, kf, l.\. 514. Slate \. t'iiu-iiinat! (ia> ("".. IN. -'.'i"). Slate \. I larf ell, I\ , ;,iS. State V. Manraih. I\', 51S. State V. Suiilli. I\. 51S. State V. Worinell, l\', 31S. Slate i*"ire liiMiraiKe ('<>.. Ke. X. 11)4. State K.iilwav Tax (■a>e>. \'. .^S. Staveley v. Allo.ek, ill. -•-•X. Ml ^ eti- 4'M Mil', I l.iiit- Kv. (■ IX. .Stevens V. MKilain! C"iniiiMe> Ks Co., SteMii-. V. MiiUaiul ky. Co. 1\ . |i;4, Stevens V. I'llel|)>, ill. 471, '■ti\e;iMin v. Itlainii.iid. II. S.' Stevensmi v. Corporatidii i>i King-;- I tciii, 111. 4.<. I Stivensnn v. I'r.iMkliii. Ill, ()68; 1\', iji); IX, .u;. Stiven^nii V. l.niiiiiaKl, V.W. l-'o. i Sliplkiison \. Traynni-, \ j. 5i).*<, 370 .Steward V. Waiiijli. \'ll. 4-'(). Slavers v. Curling. H. T'l; l^^• 117. Siiwarl's Case. \ 1, 11. 4'x) Sii wart V. Mean nioMi. W., S.v Steal! \. Snnlir, \ 11. .Stewart V. Iael<>.iii. \ I. 1 ; I.. 137- I-''). iX\. Ste.K 1 V. \i I XI. Sti eaduian v, Steadiiian \. Ilo.k \ II. 1S7 Steel V. Smith. \lll. ^()(> :U H (1111,1111, IX. Stiwart V. Riehard. \ 1 1. 144: l>^- .>-')■ .Stewart v. Soniirliorn. \ Stewart V. .Sii;ii\.ii,. \ I. Stewart v. 'l'iii|rn. II, 1114; \ 1, 410. 1 ;(i. \'- Steele v. I )iA-oiiport, 111, S. Steele v. .Mart. IV St .Morjian. 'lurnan, Will Hull St'fk' V, Steele v. Steele V. Steels \ . I lulliuan. 1. Steiiiliaeh v keliel li laiii^. T.W. IX. i \ 11. 41.'. ewart \. r. S. I iiMiranee l" III KiS. Slileiuail \-. .■\''lii \ 111 Sti ie> V, Xoki M- .'!<). IX, Stiii>iin y. |-"ar SiiiK \. koliiii et ,il. .w n. Ill iX. u «). Stn-' . owii>eiul 100, Suit. iKdiii. \lll. .?<). 40. 41. 101, 44- Sleplien \. (rueitap. XI. _M. Stephens V. He.ird, 111. St.-akes, Re, 111, 5.)-'. .'^tockhriilge \. .Sii>sairi-. IX. ,\Ji. >iock(l.i le V. .X'ii-hol.- X. '■\?. iluns \ Slei Stephen 1 )i-rr' r.w llill. \ 1. .V)S. 400. llorni .Me.\rt ir.r. \ III, IJ(), IV). 14S, i^i. \- l.SO. 1-7. iSo iSi, S!oddrrs \ . M rnitcr. lIU-iU"^UT, T.W.. .\u Slo" dak IV. 4^.^ .k .Stephen^ Sleiilleii> .M.-.\n! lur. XI \\ iKon. X. .V)S, 401. " -r. \', ,?4<). .?4. T M ,v?" Stone \. Comini'rei.il R\. (."o.. .XI. <)i idl;ind t'onmu: .^lolH'. V. Dean, VI. \l, -S'l, -'(Kl. ,4. Stephens R o}Ters. \-||l 4 JO Ste|)liens v. .Stephins. \ !. jdo. jd .Sloilu-il V. J;mies. XI, JO') Slonrliriclirc Can;d Co. v. Wheelev. T W.. IX. Jhi,. Slovel V. Cole, IX, i.((i. Stephens v. Wilkinson. I\'. 4"". 47^ Stowell v. Hrown, l\', jS. Stephe iKon V Raine. \l 1 1. 4SS. Stexens v Harfoot. IX. 00. sX.). Sievetis V. Cook. T.W.. .:y). .Stevens V. I'"\ans. III. 511 Stevens v. llaiiii)lon. XII. <), Stevens v. Keating. I\'. 4.VI. Stowell V. Rohinson. III. ^j_> S;raeh.;n \. 1 .Str::(Ii''i» v. >;iilon. M. re.aii. T. W.. ToS; XI, T W., .V>i: \'ir. u I, .MO. StraiiRe v. Leaeock. II. ill. 7 CASES JUDICIALLY NOTICED. Ixv .41(1, Hi. KK). •V, T. Slr;iiij,a- v. Ratllonl. Xl. 4(). (i.v Strail'iinl (las Co. v. (Inrtlnii, XI. 14J. Slratfiird vS: liuroii Ky. Co. v. Cur- |)orati(.ii cjf Ccuiiitv of I'crlli, II, 17. f Strauss V. l''raiK-i>, T.W.. jjO. f Striit v. Carter. I\'. .'77. 1 Slritt V. Cmiililcv. ", ^S. 1 Strict V. Ki'iit. VI 1. -'5; IX. 41S. Sirci't V. SiiiR-c I., \'1I, 4. 7. 11. I t -'6, 4.?7. Strttia. In re. T.W'.. ,S«. Strode V, Seatnn. X, jo. Stront? V. C.irlyk' I'ri-s Co., X. It.^ *i Strong y. IIowc, T.W'.. 153, 155. Strniij; V. Lewis, \', j8. StromI \ . (iwyir. III. 6:. Stroiiiiliill V. .\iislcy, \TII, 3^. 45, 46. Slruii^litrjj V. Republic of Costa Rica. III. Mil. Strut V. Bl.iy. 11. loS, log. Slruttuu V. Hawkcs. .\11. .^55. Stuart \-. I'lurrows, XI, 1^4. Slu;iri V. 'Ircmaiii. \', J40. Stuart \. Trcniaiu. XII, Kx). Stcwan V. Wond>tock. XII. (14J. Sfulil)iuK \ . I luutz, X, 57. Studdv V. Sanders. T. \\'.. IJ4. Studliohnc V. Mandeli. T.W'.. 124. Sturdy v. Henderson, VIII. J51. Sturgcss V. Bitner, X. S07. Suffell V. Rank of Ireland. X. 176. Sugdcii V. Lord St. Leonards, 111, Su'Iivan. In re, T.W'.. 2. Sullivan y. Mont.igue. Ill, 162. Sullivan v. Read. "l. 301 ; VIll. 5S. Sumner v. Batson, \'III, \4<). Suiuncr v. Broniilow. IIL .?46- Suiuuer v. Powell, III, 325. Sunter v. Jobnston, 1, 128. Sui)ervisors v. I'nitcd States. VII. 464. Supreme Conclave. Royal .Xdelphia v. Cappella. XL 20. Supreme Council of Catholic Knitjht'; of .\mcrica v. Franke. XL 20. Supreme Lodge. K.P,. v. Knight, XL 20. Susf|uehanna Bank v. Supervisor> of Broome County. V, 38: VII. 475. 476, Sutherl.md v. Cooke. III. 60. Sutherland v, Mannix. IX. 300. Sutherland v. Schultz. Ill, 424. Sutherland v. Young. 11. 378. Sutton V. Burgess, IV, 2J7. 278. ."^nttiiu \. Clarke. .XII, 425, 429. .*^uiiMti Impro\ement Co. v. Hitcli- eus. II, !(,■„ i(,5, \ijS. Sutton V. X( rwicli. T.W'.. 357. Sutton v. Siuton. T. W'.. J78 ; \'!II. 2S1J, 35S. J5(;. 31 M). Suiton V. Temple, IX, 145, Sw.nne v. Creat X'orth-W'evtern Rv., Ill, 570. Suantou V, (iiiold, \'I1I. 2(11. Sweeny v. tiodard. \'II. (>8. 70, 71, 72. Sweeting V. I'tarce. I\', 23S, Swifi V. Jones. II. 220. Swifeii V. Swifen. \', 140. Swnihorne v. Carter, i. 117; IX. 1.^7. Swiney \. Barry. II. j>i^\. Swuiey V. The Lnni>killen. etc., Rv. Co.. IX. J14, Swire v. Redman. 247. 24S. 241;, 250. 251, J-.,\. 2.S5. Sword V, Cameron. XI. 538. Sykes v. Sacerdote. \'. 342. Tagart \-, .M.ircu^. XL 501. Taill.y V. The Oll'icial Receiver. VI. ,?59: \III. 453. Tr Ihoi V. iMcre. XL 634. T;ll)ot V. Kemshead. I\'. 44. Talcot V. Sickle-leel. III. .^7. Tamplin v. James. Ill, i u : T. W'.. 3X0. 3«i : IX. 44,. Tamvaco v, Simjison. \'II, 5.14. Tamworth Ca^e, II. 130. Tanner v. luiropean Bank. \'. 347. Taimer v. Smart. XII. 370. Tanuqerav. W'illaume & Sandan, Jn re, IX. 458. Tr.plin v. Tai)lin. X. 336. Tarher v. French. T.W'.. log. Tnitant v. We!)l). V. 378. Tarrv v. Janus. \'II1. 244. Tasker v. Small. III. 120. 123: I\'. 24(). 367; \'. 426. Tatan v. Haslar. fX. 344. T;iiton \. . \', (y(). 223, 228, 2U. 2,]2. 2M'). Tavlor v. Caldwell. T. W'., 121 ; I, 238: IV, 134. 428. Taylor v Carr. T.W'.. 2. Tavlor v. Chester. \', 67. T;.ylor v. Clark. III. 59. Ixvi CASES JUDICIALLY NOTICED. m ; 1 f Si. Ili'leiis" ^ Co., T.W. 'laylDT V. Ciirimration " X. 507. Tayliir s. Crow laii>l (ia Dowlvti, XII, J_':j. l-"«): \ Taylor v. T.'vlnr V. T: yl.M- V. T; ylor v. Taylor v. Taylor v. \I. fhS. 70, -_•: IX. Tavlor V. Laitd. 1 1. 4.^ Ti'vl'ir V. MiKiaiid, l\' "47- Taylor v. T.'.ylor V. Taxior V. 1 a\lor V. Ti.vlor V. ■ H. 51. .'4" ; ., 1 1 . 1.41. 144. .McKi.uul. X. ()<>,?. I'hillipv T.W.. 104. ropham. \' .'4,V I'orUT. II. VIV Rainy l.:ikc Liiitiln'r 5-'- Co.. Taylor v. Rcail Taylor v. Taylor v. T.'.ylor V. T.iylor V, T.ivlor V. T;.ylor v. T.'vlor \. HI. 77. RiiiKk'll. 1. im: VII. 4-"J- Saiuliford. Ill, 157. Simttcii. IX. _'07. Sinitli. \ 1 1. ,V)(k SSo. T.ivlor. I, ?26; II. qo; V. \'1I!. .w. 4-'. Taylor, XII. ,58. TnwllSClul. III. ,^41. T;ivlor V. Walters. \'. 170. T.ivlor V. Williams. T.W., 8,v Tisylor and WinnijicH. Ri'. XII, 22. Taylor v. Winnipcj;, XII. (q,!. Tt'tdc V. Johnson, T.W., 202. TotfRin V. Lan^ford. IV. 2,v '■ \'. ^>^ Tunpi-rlcy v. Scott. VI, 122, 127. TcniiK'st. Ex parte, XI, 340. Tttnpcst V. Ord, V. i,V). Ttniple V. PiilK'n. VI. .U'. .U-- .U'l- Tench V. The Tircat Western, II. 2^',. Tennant v. flallow. XII. 160. Tennant v. Tlowatsoii. \^II, ,^57. TennaTit v. Trenchard, TIT, 6. Tennant v. Union Bank of Canada, X, 372- Terry v. Dnntzc. T.W.. 125. Terry v. Hutchinson, VII. 22.^ 227. Thames Haven Dock Co. v. Rrvmer, II, 162. Thames Haven Ry. v. Hall, HI, 44. Thames Iron Works v. Royal Mail, etc.. Co., IV, 201. Thaver v. Boston. IV. 4?4. 4^6. '1 hihault V. Gibson. VIII. 366. Thomas, Re, XT, 37?. 570. Thomas v. Brown, XI, 167, Tliiiin;is V. Calwallader, T.W . 124, J(x). Thomas v. Comiell, XI, 214, 1 homas V, DeriiiR, T.W., 2^. Thomas v. Donijlas, XI. jW). Thomas v, Evans, T.W.. 18S, Thomas v, In^lis, IX, 584, T homas v. Kelly, XI, 467, T |-,omas v. ynarterm.iin, V, nhj. 375. Thomas v. The (Jiuen, VH, 2(). Thomas v. Railroad Co., IX, 2()(). Thimas v. RawliiiKs, \'HI. 402. Thomas v, Stuttrrli;iim. \', 34(1. TTiom;is v. Sty, III, 120. TTiomas v. Thomas, XI. 20. TTiumson v. Davenport. I. 67. TTiomps,.n v. Beche. T.W,. iSS. Thompson v. Belfast, llolywdnd and Banjjor Ry. Co., \'II, 154. TTiompson \. Brown, 111, 156. Thompsdii V. Dodd, HI, 652. Donaldson, \', 46. Freeman, IX, .^34. (ir;ind Trunk Rv I hiiinpson V, Thompson \-. Thompson v. 113. 114. T homp>.on v. Holmaii, 1, Thompson v. Incjham, .tSf), 488. Thompson v TTiompson \- TTiomp>^on v TTii'm[)son v Thomiison v TTiom-ioii V. 4.V \'lll. TTiritlips Thompson Jackson. II. 215. Leppratt. HI. 172. Marsh. XII. 6^1. Marshall.\'ll. i^^ Massie, II, 2S5. Pheney. XII. 141. Rohson. VII. 42(1, Ross. VH. 226. I, 4«.'5. 14."?- 428. Thompson v. Selden, IV. M),\ Simpson, I\'', ^^15 Wallace, Y. 260. Webster. T Thompson Thonip'ion .v ThtMnpson v. Webster. T. \\'.. 201; V. 240. Thorn v. Commissioners of Public Works, HI, 517, Thorne v. Torrance, T.W.. 202. Thornton v. Court, T.W., 3,7q. Thornton v. Curlinc;, X, 184, 185. Thormo.i v. Ellis. HI, 58. Thornton v. Hargrcaves, XI, 348. Thorn'on v. Tilingwortli. VIII, 53r. Thornto.i v. Place, IX, 470. Thornton v. Union Discount Co.. X, 4R3. 486. 488. Thorold V. Smith. T.W'.. 72. Thorouphpood's Case. XI, lO"^. Tharp V. Tharp. V. t.^8. Thorpe v. Booth. \TIT. 2^1. Thorpe v. Thorpe. T.W., I33- CASES JUDICIALLY NOTICED. Ixvii 4«5 45"' Thresher v. Londim Water Works Co.. Ill, 344. 'riir^. TifTaiiv V. MclCwtn, l\', ^37, ](r(). 571. Tiikard. Re. VII, 1S4, 188. Tilky V. Simpson. VI. 165. Tilsot) V. Warwick Gas Co.. II. Ku: III. 541. . Timothy v. Simpson, T.W., 77. Tinniswood v. Pattinson. \ III, IX. 0.^0. Ti|)ling V. Cole. Nil, fi2i, (uj. Tippett V. .\Iav, \'lll, 44S. 440, Tipper v. Micknell, III, .?86. Tipi)ing V. Power, IV, 4_'. Ti^dale v. Dallas. I.\. i lO, uo. Titley v. Foxall, IV, 51S. Titus V. Durkee, I. J5^. Todd V. C. P, R., I, V^v Todd V. Gee, T.W., ,^70. Todd V. Ripstein, V, 73. Tomlin v. Luce, XII, 74. Tomlinson, Re, II. 200. Tomlinson v. Land and I'~inancc Cor- poration, III. ()06; IV. ,301. Tomlinson \. Morris, IX. 145. Tcmpson v. Knights, II, 196. Toms and Moore. In re. T.W.. 15.V Toms V. Wilson. X. ,144. Tooke V. Hartley, VIII, 193, Trole V. Medlicott. I, 48. Toomev v. London & Brighton Rv., V, 70: VII, 155, Tof)tli V. Hallett, I, 2()8. jik). Tnpham, Ex parte, XL ,^4(j. Topham v. Consiantine, X, 420. Toppin V. Llealey, IV, 63. 67, 68. Topping V. Keysell. T.W., J02. Toronto Dental, etc., Co. v. McLaren. VII, 366, 368. Toronto Last, II. 1,^6. Torrance v. Holden. Ill, 2,\y. Tcjtten V. Douglas, T.W., 202. Totterell v. Fareham Brick Co., II, .U'o: IV, fi; VI, 88. OQ. 10.?. Towers V, Osborne, IV, 437. Townlcy, Kc, VIII, 383, 3()8. Town of Wallliam v. Kemper, l\', 102. Town.scnd v. Ch.impernoun, III. ,]m. Town^hii) of Londfiti v. Ci. W. R., V, .V). Touche V. .Metropolitan Rv.. III. 121. Toulmin v. Iledlcy, VIII, (m. Toulmin V. Steere, I.\, ,V)(). Traders' Hank \. (i. ^^ J. Brown Co., IX, 3i<4. Trainor v. Ilolcnmhe, I\', 311, Traver v. IlaKuad, X, 309. Tr.ivis V. .Miltu', XI 1 23C. Treacher v. llmton, II, 202. Trelawney v. Thomas, IV, 172. Trent v. Hunt, III, 228. Trent & I'Vankford Road Co. v. Mar shall, II, 287: V, 30; VIII, 141. Trenton v. Dyer, XII, 193, 4(0. Tress V. Savage. XL if)0. Trew V. The Railwav Passenger Ass. Co., X. 33,v Trihe v. Taylor, IV, 66, 67. Trier v. Bri7 Vick^lmrK. etc.. Ky. v. I)iiiiii>. \11. >). N'liuuiit V. Murray. IX. 4^7. Vimlt'ii V. Frascr, X, 422. Viscount V. Town Clerk of NottiuK ham, III, 15. VoKcl V. (i. T. R.. V. nw, .U7. V'oglc V. Ripper, II. .^85. Vojft V. Uoyie, X. .igH. V'oiscy, K.\ parte, XI. 4J1. \'yse V. Uruwn. XII, Utg. Wal.ly V. Gray, XII. Walker, Re, V, 148. Walker v. Appocli. X, AS-' 100. XI, J78. iry). .v<) Armstrong Atwood, 1, . Hell. X, iiy. Bradford, XIl. lUitler. VIII, ?_M Clay. IV, 141. 14.1 Clements, III, i(>.<. Eastcrii v^ounties Uy V. Eastern, etc., Rv. Co 47- Co., XI. V. Halifax, XII. 4S7. 5.V). V. V. V. V. V. V. V. V. Harris Hicks, Hobl.s Jones. Niles, Olding. IX. Roberts, HI, Rostron, I, , T.VV., 2(*). VII, I2it. I ?S IX. Jf)8. VIII, 101. II, .^05: III. 5(/). 144. Walker Walker Walker Walker Walker Walker Walker Walker HI. Walker yj- Walker 646. Walker Walker Walker Walker Walker Walker Walker Walker 200. Walker Walker M7. Waddell Waddell V. Waddell V. V, 308 Waddell v. Smyth. VIII, ^^H. Wade V. Comstock, VI. 330. Wade V. Haycock. HI, 77. Wade V. Simeon, XI, 146. Wadsworth v. Bently. II, 22O). 227. WaRuer v. JefTcrson, I, 220. 222. 22,^. Wainwri.qrht v. Bland, IV, 403. Wait V. Green, IX, 301. Waite V. Hundred of Stoke, XI, a;^. 41- 294. 21)7; -^^ 58. W., 27>r. ,-. Shore, HI, ,-. Witter, T. 399- V. Blockcy. I, 45. Corbett, HI, U)^. Dominion City Brick C HI. Wake V. Harrup Wake V. r,irker, Walcott V. I, yon Walfnrd Wall V. Wall V. Wallace Wallace v. Wallace v. ,\. V. .\lar(|MiN of DoneR.il. VH, .Sliipman, V V \ll. I'K). Brown. I. 2\.i Hall, IX. 317. Jone>, VII. 241); X, V. Veomans, IV, 343. acey. HI. ido. Case. H. I. ',6, 137. . .\liitii.il Society, ■33. 14'> . Mutual Society, Assiniboiiie. V. 265. I leiiburn. \'II. 5()(). M. Rv. Co.. Vl.'s:;7. Shetlield. IX. 47'"'. Smith, 111. 470. V. Coutts. HI. (i(M. V. Child. XII. 449. V. (iocKlricke, IV, Walliiinford v. .Mutual Society, IV, XV): VII WalliiiKford v. Mutual Society, XH, 248. Wallis V, Wallis V Wallis V Wallis V, Wallis V, W,illwyii Walmsley Walsingli.im v. (ioiKlricke, IV, 173, i7(y Walter y. Rumhall. T.W.. 141. Walters v. C. P. \<. Co.. Vl. 173 Walters v. Northern Coal .Mining; Co.. HI. 123. Walton. V.\ ()arte. VII. 313 Walton v. Bern.-ird. IV. 175. I7('). Walton V. Jarvis. 1\'. v)3. Walton y. .\lascall. IV. 426. 428. Walton V. l^niyersal SaKage Co., HI, 123. Walton V. Waterhouse, T. W., 121 ; IV, 134. 155, Walts y. Cresswell. IV. ^G^^. Waltz V. Slv iff of Herts. IV. Af/y Wandsworth Board of W'ork^ y. I'liited Tele|ihone Co., IX. 2^]2. Wrinkly v. Wilsmi. X. 132. Wapels V. Ball. IV. 420. Ward V. Dixon. V. iCkS. Ward y. h'vans. T.W.. 72. Ward V. Hobbs. VIII, 473. Ward y, I.aut, V. 2U- Ward y. Lee. XH. 423. Ward V. Lewis. HI, (^Cm. Ward y. Lloyd, X. 286. Ward V. Macaulcy, IX. 367. Ixx CASES JUDlCIAir^Y NOTICED. \\';ir4; \, 4^6, 4,^«. W arniolc v. ^'llnng, IX, .^(>8. Warnc v. llnwsley, I\'. 1.^5; \'. 151. Warner v. Jacol), \'I, .?o6. Warner v. Jaeoh. XII. 65. Warner v. Miirdock. VI. 195. Warnock v. KkoptVr. X. 422. Warnoi-k v. Kl()ei)fer. XII. jq. Warrant Finance Co.'s Case, In re. X. KAV Warren, V.\ parte, V, 148. Warren v. Rudal!. X, nji Wason V. Walter. VI 11. 72. Washlinrn v. Canada Car Co.. I. ,V)7- Waterous Engine Co. v. Henry, IX. QO. 584- Waters v. Shade. VII, 384. V^^s- Waters v. Tompkins. Ill, 157; VHl. 524- Watkins v. Towers, \ . 375. Watson. F.x parte. VII. 04, 100. V. .-XnilierRate. T. W., 238. Hani. 1. 369. Harvey. X. 640; XI, 110. McDonald, V. 293. Moore. IX. 16. Rodweil, II, i8r. Rnssell, HI, 401) ; VI, 341, V. Watson Watson W^■l.tsf>n V Watson V, Watson V, Watson V. Watson V. .^44- Watson V, Watson V. Watson V Severn. I. 234. Waltliani. IX. 67. Wlialen, II. 27(): X. --^(v. VIII. 5S. Watson V. Vorston. XI. 6. Watt V. Collins. VII. 1S7. W.itteau V. Fcnwick. .\11, 121. Watts V. .'\nderson. VIII. 81. W.itts V. Sinics. IX, 40V WauRii, Re. VIll. ^46. y^2. Wangii V. Rnssell. II, 283. \\ aiigii V. Morris. Y. 67. \\ av V. Davidson. X, ^4;. Wayniell v. Reed. \'. 66. Th). Wayne v. Tlanhani, IX, 68; X. 117. W';ivn V. Lewis. X. 160. Weard v. Gable. III. 65. Wearing v. Smith, V. 61. Wel)l- In re, T.W., 133. Webb V. Brooke, V, 67. W W W W W W w w w w w w w w w w w w w w w w w w w w w w w w w w w w w w w w w w w w w w w w w w w ebb V. ebb V, ebb V. ebb V. ebb V. .>6. ■el)b V. ebl) V b-ngland. HI, 129, Hewitt, VI, 613. Mc.Xrthiir, X, .;o2. .Martin, VHl, 448. .Manchester & Leeds Rv.. V, Russell. I\'. 190. eiti) V. Stenton, Xli. 491. ebb"s I'olicv, In re. X, 51)0. ebber v. (;.' W. R. Co.,"T.W. 'eblin V. Ballard, XII. 117. ebster V. Hale, HI. 67. Clark. III. 6=is. Delaticid. Ill, 606. lunery, \'1I, 570. Foley. XI, 531. I'ebster v. l^'reiich. XI. 2(^7. /ebster V. Friedelberg, IV. 138 I'ebster v. Munger. \'. 66. /ebster v. S. F. Ry. Co.. V. 9( I'ebster v. Toronto. X. (;64. ,'ebst.T v W.ntls T.W 8' ebster v. ebster v. ebster v. ebster v. 'ebster v. Watts. T.W.. 82. ■el)>ter v. Webster. T.W.. ifK) edderburn. Re. IV, 22. 'ceding •■. Weeding, III. 562. ceton V. Woodcock. HI. ,m. 'I'irltnritl v TCfilir T I^l eulman eir. Re eise V. eise V. 'eld V. eld V. eldon V. Kohr. I. 16. \'I. 122. I ^4. 136. Wardle, 111, 634. Wardle, IX. 440. Lew. \', 138. Nichols, HI, 443. Winslow, -XlI. ,^)3. and Case, II, 142. 'cll.md FJection Case. XII. 263. 'elland Rv. Co, v. Blake, IX. 148. 'eller v. L. B. & S. C. R.. VII. 134 'ellesley v. Dnke of Beaufort, H. 199. 199. ells V. .Abraham, VII, 22>^: IX. 142, 842. ells V, Horton. T.W., t,},^. ells V. London. T.W.. ^-,2. 863. ells V. Lindop. \'ll 1. 33. elsh V, O'Brien. HI. 338. 6v); IV, 3.1- enlock Baroness v. River Dee Co., VH, 88, <)6. 98. entwortli v. Lloyd. XH. 433. erdermann \. Socieic Cieiierale "-' -■■'■■' . IV. .uo. HI, erderiiiaiui \. .^ocieic i icii d'F.lcctricitie. IV. 340. est Bronth Bank v. NIoorhcad 157^ est v. Blakew IV, 201. 'est V. Downnian, IX, 333 est V. Elkins, X, 319. T, W.. I JO. 123; m CASES JUDICIALLY NOTICED. Ixxi West V. Hedges, X, ()?? West V. Lynch, IX. 57I West Siiucoc, [\L\ Xi. ,vSO. West of luiKlaiid. ci'c. Hunk, v Miircli. IX, 458. We^thuiirne Cattle Co. v. .M i\: X -\V Ky. Co., IX, 504. Westerdck' v. Dale. I \'. lyo. Wtsteiiherg v. .Mortimoic, XI. 5. Western IJectric L. Co. v. McKlii- zie. V'l. 2Q. ,?j. West Hamilton v. Oven. X, 510. Westhead v. Riley. Xll. 4t)l Westlake v. Al)lH)tt. Ill, 60J. Westman v. Aktiebolaget, I';knians etc.. Ill, i8(j. Westminster Case, II, i4_>. Westminster Election Ca>e. I\', j-^ 3-'0. Westoby v. Day. III. 294. Weston V. Savage, I, 2,31. West Toronto Case, li, 146. Wetherall v Jones. III. 305. Wlialen V. Rvan. IX, 54. 411. W lialey v, Bognell, TAV.. _>J. Whalls V. i,earn, XII, 27a Wharton v. .Morris. \'III. 47S. 4S7. Wharton v. Xaylor, XI. 527. Wheatley v. Purr, III. 260. Wheatley v. The Silkstone llaigli- nioor Coal Co.. I.\. 214. Wheeler v. Branscomhe. III. 24S'. Wheeler v. (iihhs, 1\'. 291. 292. Wheeler v. l.e Marcham. \'1I. 57O. Wheaton v. liardistv. V. 79. Whelan v. .McQueen, \TI. ;;47. Whelan v. Ryan. \'IiI. 4.S4." -r,r. -,~(^. Wlietten, Ex parte. VIII, 4()(). Whicker v. Hume, V. jj: X. 1X0. 183. Whiston V. Dean, etc.. of RochcU'r ni. .V-2. Whi-tler V. Hancock. \'H, 5W), 5f>S. Wliitaker v. Hank of England', 1\' 207. W hithread v. Hrockhurst. TA\ Whitchurch v. Hevi-^. TAV.. 22 White-,' Case. V, ^87, White V. Reeton, HI. 77. White V. Biaste.id. VI. 616. White V. Cnurtnev. IX, 16. White V. Galhraith. X. .^gS. Wliite V. Huidiey. I\', 80. ((6. ',H. White V. Ladv Lincoln. \'.'i48 White V. Lord. 1 .W.. 202. White V. Louise. XI. 227. Wliite V. Lovejoy, XL i"?!. White V. Middleion, T.W.. 2()(). -4 W lute v. .Miirris, XL ud. 401 • VVhite v. I'hil!ii)>. I. 210 White V, Roach, ill. 2i>S. White V. Stevens, T.W., 202. \\ hite V. W.itts. V. 2(ji W hite V. White. I, 117. Whitehead v. Bennett, HI. v|i. W iHUhead v. Butfalo & j. II Rv Cu., VH, Hy, 102. hitehe.id v. Tucketi, T.W.. ()S. intehduse v. l'"ello\ve> .\11. 425. hitehouse v. Hennneiit. VIII. 59. liitelock V. .Musgrove. VII, 247" hiieman v. Hawkins. V, 210. hitticld V. South liastern Ry., H, W W W W W W W w w w w w w w w w w w w w w hitliam v In lino- V. hiting \-. humg \-. hillock V. hitinore hitmore hitinore hitiuiire hitt.aker liituiioij Lynch. \', 61. Hiivey. L\. 83. Law ra son. L\. -14- 111. Ru.sh. IV. .340. Hiiniphreys, VII. 470. V. Cl.indge. T.W,. iv8. W W W W W W W W W w w \v w w w w w W w w Smith. X, 676. Turquand, X. 132. Smith. X, 676. Wliit'.aker, V. ,36. Hardm.m. XH, 44[ liitworth V. Smith. V. ]^i) ^()i hyte V. Haliett. VI H, ^2. ' ' hyte V. Rose. I, .^.^ hyte V. Western .\>mirance Co VI. -'29. 234. ickens V. Steel, \'!. 287. 34;. icker V. Hume, \'l. 460. icket \-. Creamer. \', ^]jj. ickham. Re. VI. 13(1.' 137. icks V. .McX.im.ira", III". 676. icks V. Tern ham, \'I, 260. icksDu \. I'e.-ir-on, V. 170. ideman v. Bruce. X. JVh idgery v. Tepper. IX. 3(14. icr v. Burnett. IV. .^.XS. 'ig!jins \. Cha.icc. X'll, 'iiigin- V. Meldrum. IX ilhy V. West Cornwall W., 239: I. I'll, ilcocks V. flowel ilcox \. (iodtrev ilde v. Wilde. II ilders v. Ste\en> ildiiig \ ildm;m \ . 3'> Rv. 318, Co., I, VH. 3 = \'. 247: ■ 107; I\ X. (,|3. f,48. Andr.ws. Xll. 100 Xnrth. .\. _^(,~, 402. v. .M.ariiie X';i' ilev 67 \'v iley V. Parim r. T \V 2. Wilkes V. Back, 111, 445. nal l'.ank. IV Ixxii CASES JUDICIALLY NOTICED. Tlungerford. Ill, 25. McMillan. IV. .^jy! VIII, Smitli, I.\, I if). 120. Cariuicliat'l, VIII, 466. Day, XI, 80. Peatman, II, 63. Reed, IV, i;8, 186. V. ALston, IV, 59, T58. 162, WMllrcs V. Wilkes V. Wilkes V. W'ilkins v. W'ilkins V, W'ilkins v, W'ilkins v, Wilkinson 166, Wilkinson v. Duncan, III, 58. Wilkinson v. Leland, II, 333. Wilkinson v. Unwin. X. 640. Willand, Ex parte. VllI, 402. Willes V. Levett. VIII, 194. Willett V. Brown, VI. 113: VII, 60. Willey V. Elgee, VIII. 250. William, Ex parte, X, 474. William Phillips' Insurance, In re, XI, 10. illiams Estate, Re, III, 465. liams. Ex parte, XI. 434. W W W W W W W' W W W W W Uiams v. .Arkle, VIII, 393. lliams V. Baker, XII, 8. lliams V. Barrel, III, .325. 326. lliams V. Bayley, XI, 178. lliams V. Bosanquet. IV, 190. lliams V. Brisco, IX, 39. lliams V. Burgess, VII. .?56, 260. lliams V. Byrne. I. 345. lliams V. Bryne. III. 385. lliams V. City Electric Street Ry. Co., IX, 263. Controllers, V, 51. Crosling, III. 4=;. 606. Currie, V. 31''^. 3^8. Criflin. VII. 187, Cr, W. R. Co., IV, 226. Jones, T. W., 282: III, 455 : VIII, 102, 111 ; X. Williams v. Williams v. Williams v. Williams v. Williams v. Williams v. 91 . VII. 292. Williams V. Williams v. Willi.'ims V. V. illiams v. Willi.'ims V. Williams v. Williams v. \\ illiams v. Williams v. VII. 106 Williams v. Smith. III. Williams v. Tavlor, I\' XI, 279. Williams v. Wace. XII Willi.ims V. Waring. II ;09- Tames, XI, Lake, VII. N. \ . C. Rv. Co.. V, 100. Owen, X. 381. Pipgott, IX. },i. Raleich, X. 42. Raleigh, XII, .4-'6. Richards, XII. 30. St. Cieorge Ilarhour Co.. 417. 109. 201. 4"j; Williams v. Williams. IV, 250. Willi.-Miison V. Carskaddcn. XII, 8. Williamson v. Gordon, II, 154. Williamson v. Page, V. 292. Willis V. Ball. T.W., 108. Willis V. Bank of England. I, 33. Willis V. Earl Beauchamp, IX, 292. Willow V. Berkeley, V, 94. Willouglihv. Re. V, 139. Willoughbv V. Backhouse, T.W., 141. Willis V. Carman, v^III, 54, 76. Wilmot V. Jenkins, III, 56. London Celluloid Co., IX, Wilmott V Wilson V. 196. Wilson V Wilson V. Wilson V. Wil!^ Wilson W ilson Wilson Wilson Wilson V Wilson V W ilson Wilson son V. V. V. V. V. Wilson Wilson Wilson IV. 176. .\etna Life Ass. Co., VI. Black, I, 107. Brown, II, ^82. Brown, X, 205. Churd, II, 73. Connnissioners, V, 51. Connie. VI. 39. Greenwood. Ill, 5. Hunt, IX. ^12. Kerr T. W.. 202; IX. 84. King.ston. IX. 320. Lloyd. I, 2^2. Maddison, III, 67. Mery, V. 371, },■!%■. XI, Metcalfe, I, },},. Northampton & B. J. ?3i. Ry., II, 9; V. Port Hope. T. W., 352, V. Northern 559- Rv. Co.. Wilson VI Wilson 361 W ilson V. Smith. XII. Wilson V. Stanhope. \' Wilson V. .Switzer, V. Wilson V 102. Wilson V. Tucker, T.W., 104. 142. I. .^78. -24.V Town of Port Hope, I, Wilson HI Wilson W ilson ... ^75: Wilson \ Windhill . 179- Windsor Windsor V. West Hartlepool Ry. Co., 43f'- V. Whiitcock. I.X. 117. V. Wilson, II, 20;: VIII, 83, : IX, 616. Winnipeg. IV. 43^ 456. Local Board v. Vint,' XI, Re, IV. 229. . Re, VI. I2J. 129. 14V Windsor. Re. VIII, },-]'^. Wing V. Tottenham & Hampstead Juncti(in Ry. Co , I. 2^8. Winn V. Patter.-on, V, 191. Winspcar v. .\ccidental Ins. Co., X, 554- \m U inter V. Bartholomew, VIII y X Winter v. Kcovvn. IX, 258. \\ interburne v. Morgan. V, 36.' U iiitertield v. Bradimiii. II, si ^>- HI. 103: V, 34J. • ^ • •■'-• Wintlc V. Freeman, XI, 523 VVintle V. Williams, III, jy^- V >(x) Wise V. Birkenshaw, III, J(j\. Wise V. Wilson, IV, 4. Wiseman v. Vandeputli, \'I, 276 W ishart v. Brandon, V, 2(y.j W'ishart v. McMamis, VIII, 170 W ishart v. Mc.Manus. Xll. 180 Witheck V. Holland. X. (kd; Witham V. Smith, T.W., _'v Witherington v. Banks, 1\". kh Withers v. Parker, X', joi, W'lthers v. Reynolds, VI, 38J, \^]. W akcman v. Rohinson, T "w 7 Wolf V. Blaek, III, 207. Wolf V. Tait, XII, 44^, 3,7. Wolverhampton v. StatTordsliire Banking Co. v. George, II, 137. W^olvcrton v. (]. \V. Rv., \'I, =c(; Wood, Re, III, 300. ■ Wood V. Braddick. VI, 10, n. Wood V. Charing Cross Rv 99. 103. Wood V. Di.xie. T. W.. i.K) CASES JUDICIALLY NOTICED. 100. W^ood V Wood Wo(jd WootI Wood Wood W'ood Wood V, II, S3. 90. Griffith, III. 205. Gniilett. XI, 022. liewett, II, 174. Jackson. If, 220. Mc.Mpiie. XII, Z.7J. Schultz, III. 17:;: IV' White. Ill, n. ■ Wood, IX, 610. V. F.astern Comities & -■>/ Woodard Co,, II, iq6. Woodhurn'sWill. In re, X. .sqi W'oodhill V. Sullivan. \'I, 24V Woodin V. Foster. II, ^^y ; IV Woodley V. Boddington, V, 134. Woodman v. Freeman. T.W ," ^^i) Woodman v. MidgKv. T.W.. 2^ Woodm.in V. Irwin. "T.W. . jor" Woodruff V. Cami)l)ell. IV. VM W'oods. Re. X, SOI. W^iods V. Tecs." IX, 149, Woods V. 'S'oung, IV, ^^q^. ■Q. 376. Rv. 30. V. Shields xr Pole. \-lII, 5S5 Woo(lwar( Wookcy V Woolacott V XI, 365. Woollcy V. Colman, X 300. 597. Winnipeg 'l':!ec. St. 160. Rv. Wright \\'rigli[ v. Wright Wright Wright Wright Wright Wright ^\' right v. V. V. V. V. V. V. Ixxiii Wooton, Re, III, 592. Wordsworth V. Macdnugall, X, 649. Wormald v. .Muzeen, \III 4. Worman v. Brady, IX, ()?o. Worseley v. Ue Matte )s, T.W., 202 Worseley v. Wood, T.W. 2(19 W^orts V. Worts. X, soj. Wray v. Brown, IX, "184 Wray v. Steele, IV, 402 WiiRht, In re, T. \\..'isr, VI " \^ light, H.\ parte, T.W"" 18 Wright, F.x parte, T.W., 18; V, i^ Wright V. Arnold, VII, 271 S7r \I Wright V. Burrougiis, IX, 480. Wright V. Callendar. VIII ^4 W right V. Chard, V. 244. ' lemming. I. 305. ,.. . \\:i\v. \'l. u)^, 4S7. W.nght V. Hale. Xll, 393." Howard. I. 9s. Lawes. VI. jyS. Marrallo. VI. 40. McCiuffie. IV. 394. School Trustees, II. 161 Snowe. HI, 34. , Turner, V, 8v W roughtoii V. Turtle. \'I 5^ Wyatt V. Barwell, W]. 384; ^gg Wyatt V. Hertford, X, 610 ' Wycott v^ Campbell, IV, 59, 64. 70. W yid V. Livingstone, IX V9 \Vylie V. McKav, VI, S97 " Wyllie V. Ellice: HI. 4"^;. ' W\ndhain's Trusts. In re. X. 183. Xenox V. Wickham. \TI. 421. Vale V. Tallcrton. IV. (16. m '^ arhorough v. B.nik of England, All. 432. Yarmouth v. France, V, 367, et sen Vites •.•, Aston, XI, 498. 1 .'ites \. Eastwood, V, 262- VIII 420. V.iles \. G.inliiur. XI "(^ > .lies V. Searl. V. -jr^ Vile. \. Ratledge, X.'gxv. XI. :^j2 >a/o,, \- .Mississippi K>y. V. Thoinas. VH. 9. Vc-itman v. Neatman. XH 2;^ ^eonians v. Baker. I\' ^. '■' "'\''r 'o Lchanr.n Str;.ot Ry. Co., A 1 . o I . Vokham V. Hall. VI, 36, 44:;; j 343. Ixxiv V. ITl- -03: Yniiiif,' V. Au>iiii. HI. 4"!^ Vntmn V Cliri'^nc, T. W ij; 1. 13')- Vnuni; V. l)rui>. 'V- 'J^' , \..unii V. Kimli^h. ".'• .'3'' ^ VuunR V. FlctcluT. l.W.. U)K \<>u\iii V. (iixllie, \ 1, ,?•;• Vi'Uiig V. (.iriiti', N 1. ,14-'- II, CASES JUDICIALLY NOTICED. Young V, l.caininsilon, VI, SS, ion; 1\. 597 •• !• .^47- ^-.mtiK V. Shovt. 111. WS- Y.nii.R V. Stockilalc; H. 224. VoiiiiR V. \V:ird. 1. Wm iy«- 6.S3- Zobii'.skie v. Bander V. 20?< Zouch V. F.mpscy, 11, 3f<3- 91. 111.