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Les diagrammes suivants illustrent la mdthode. rata > elure. 3 i2X 1 2 3 1 2 3 4 5 6 Of OR PRA( I 1 .V •^ ' o THE ONTARIO JUDICATURE ACT, 1881, AND SUBSEQUENT RULES ^ i^ "/'" '^ OF THE SUPREME COURT OF JUDICATURE, AND THE HIGH COURT OF JUSTICE, WITH THE ORDERS OF THE COURT OF APPEAL, AND OTHER ACTS, ORDERS AND RULES RELATING TO THE PRACTICE IN THE SUPREME COURT OF JUDICATURE, WITH PRACTICAL NOTES, s BY JAMES MAOLENNAIS, ESQ., ONE OF HER MAJESTY'S COUNSEL. SECOND EDITION BY THOMAS LANGTON, M.A., LL.B., OF OSaOODE HALL, BARRISTER-AT-LAW. CARSWELL & CO., TORONTO AND EDINBURGH. 1884 BIBLIOTHEQUE OE OROIf U.d'O. O.U. LAW LIBRARY ilia Entered according to Act of the Parliament of Canada, in the year one thousand eight hundred and eighty-four, by THOMAS LANGTON, Esq., Barrister-at- Law, in the office of the Minister of Ajriculture. ;/3

PjIOR. Table of Cases Cited ■ > ix Comparative Table of Englisli and Ontario Rules xliii Addenda et Corrir/enda li THE ACT :— Preliminary. Short title ; sec. I 1 Commencement of Act ; sec. 2 2 PART I.— CoNSTrruTioN of SurREMi: Court. Union of existing Courts ; sec. 3 2 Existing (!ourt of Ajipeal continued ; sec. 4 6 Oath of office ; sec. 5 6 Saving of rights and obligations ^f existing Judges ; sec. 6 ' 7 Provision for former extraordina ?y duties of Judges ; sec. 7 7 Seal of Supremo Court ; sec. 8 8 PART II.-JUIUSDICTION. Jurisdiction of High Court of Justice ; sec, 9 8 Transfer of pending business ; sec. 10 9 Provision as to pending business ; sec. 11 10 Rules as to exercise of jurisdiction ; sec. 12 11 Jurisdiction of Court of Appeal ; siec. 13 12-14 Powers of Court of Appeal on appoal from High Court ; sec. 14. . . 13 Law and Equity to be concurrently administered ; sec, 16 15 Rules of Law declared on' certain points ; sec. 17 23 PART III. — Siri'iNos and Distribution of Business. Abolition of Tei*ms ; sec. 18 42 Sittings of Courts ; sec. 19 . 43 Vacations ; sec. iiO 43 Sittings in vacation ; sec. 21 43 Commissions of Assize and other commissions ; sec. 22 43 Rules of Court to provide for distribution of business ; sec. 23 ... . 44 Assignment of pending business to the several Divisions of the High Court ; sec. 24 *45 Documents by which cause commenced to be marked with name of Division to which assigned ; sec. 25 45 Power of transfer ; sec. 26 46 Rota of judges for election petitions ; sec. 27 47, 584 Business to be disposed of by one judge so far as practicable ; sec. 28 47, 48 Divisional Courts of the High Court ; sec. 29 49 Constitution of Divisional Courts ; sec. ,30 50 Judges to take part in business of any Division ; sec. 31 50 Orders not subject to appeal ; sec. 32 ' 61 Limitations of appeal ; sees. 3;^, 34 52, 53 Appeals from interlocutory orders ; sec. 35 54 Discharging orders made by a single Judge ; sec. 36 54 Appeal from decision of a judge in Court ; sec. 37 55 No appeal unless proper notice and security given ; sec. 38 56 Appeals from High (Jourt ; sec 39 56 4| VI ONTARIO JlJDICATUUli ACT, 1881. PART III — Srn'iNOS, kc—iContiimcd). Paob. Provision for absence or vacancy in office of jutlge ; Sec. 40 56 Power of a single judge in Court of Appeal ; .sec. 41 . . . 57 Divisional Courts of (Jourt of Appeal ; sec. 42 57 58 59 59 63 Limitations of appeal to Supreme Court of Canada ; sec. 4!i. PART IV.— Trial and Procrdukf. J udgment not to be given for party unless entitled on facts proved ; sec . 44 Modes of trial ; sec. 45 Sittings for trial of non-jury cases ; sec. 46 References and assessors ; sec. 47 64 Power to direct trials before referees ; sec. 48 67 Power of referees and ett'ect of their findings ; sec. 49 69 Powers of Court with respect to proceedings before referees ; sec. 60 70 Arbitrations under C. L. P. Act 71 . . 96 Seals of Deputy Registrars and Deputy Clerks of the Crown ; sec. 51 96 Provision for saving of existing procedure where not inconsistent with Act or Rules ; sec. 52 97 Rules of Court ; sec. 53 98 Who may make Rules ; sees. 54, 55 99 Council of Judges to consider procedure and administration of justice ; sec. 56 101 Statutes relating to existing Courts to be read as applying to Courts under Act ; sec. 57 103 PART V. — Officers and Offices. Officers of existing Courts to be attached to their respective Divisions of the High Court ; sec. 58 104 Distribution of business among officers ; sec. 59 105 Existing securities continued ; sec. 60 106 Oath of officers ; sec. 61 . . 106 Authority of certain officers preserved; sec. 62 106 Official referees ; sec. 63 110 Local Masters, Deputy Registrars and Deputy Clerks of the Crown ; sec 64 Ill Surrogate and County Court Clerks not to draw or advise on certain documents ; sec. 65 114 Official Guardian ad litem ; sec. 66 114 •Provision as to property vested in Accountant ; sec. 68 117 Expenses of Accountant's office ; sec, 69 119 Inspector of- Sheriff 's and other offices ; sec. 70 119 Inquiries by Inspector ; sec. 71 120 Powers of Commissioners to take affidavits ; sec. 73 . . . 120 Solicitors and Attorneys ; sec. 74 120 PART VI, — County Courts and Judges. QuaUfication of County Court Judges ; sec. 75 121 Local Judges of the High Court ; sec. 76 122 Powers of County and Division Courts ; sec. 77 122 Counter-claims in County and Division Courts and transfers there- from ; sec. 78 124 Surrogate Courts, fees of Judges ; sec. 79 125 Rules of Law to apply to Inferior Courts ; sec. 80 126 I ._.. TABLE OF CONTENTS. Vll PART VII. — MiSCKLLANROUS PROVISIONS. PaOK. Orders in Council as to allowances and salaries subject to ratifica- tion by Legislative Assembly ; see. 81 Transfer of books and papers ; sec. 82 Compelling attendance of witnesses ; sec. 83 Saving as to Circuits, &c. ; sec. 85 Judgment by Judge who resigns, or is transferred to another Court after case heard ; sec. 8G Act not to apply to certain matters ; sec. 87 131 Justices of the Peace in Nipissing, qualification of ; sec. 88 131 Inspection, &c., of Court Houses ; sec. 89 131 Repeal ; sec. 90 131 Interpretation ; sec. 91 132 126 12G 127 128 130 SCHEDULE— Rules of Court. Orpbkh. 1. Form and Commencement of Action 2. Writ of Summons and Procedure, &c 3. Indorsement of Claim, &c 4. Disclosure by Solicitors and Plaintiffs 5. Renewal of Writ 6. Service of Writ of Summons 7. Service out of Ontario 8. Appearance, &c 9. Default of Appearance, &c 10. Leave to Sign Judgment where Writ specially in- dorsed 11. Application for Account, &c., where Writ indorsed under Order 3, Rule 6 12. Parties 13. Joinder of Causes of Action 14. Actions by and against Lunatics and Persons of Unsound Mind 15. Pleading Generally 16. Pleading Matters arising pending the Action 17. Stacement of Claim 18. Defence ; 19. Discontinuance 20. Reply and Subsequent Pleadings 21. Close of Pleadings 22. Issues 23. Amendment of Pleadings 24. Demurrer 25. Default of Pleading 26. Payment into Court in Satisfaction 27. Discovery and Inspection 28. Admissions 29. Inquiries and Accounts 30. Questions of Law — Special cases 31. Trial 32. Evidence Generally 33. Commissions to examine Witnesses 34. Evidence by Affidavit 35. Motion for New Trial in Jury Cases 36. Motion for Judgment 37. Entry of Judgment 38. Execution 39. Writs of Fieri Facias, &c Rules. 1- 4 5- 10 11- 28 29- 30 31- 32 33- 44 45- 49 50- 68 69- 79 Paok. 135 159 163 174 175 177 189 196 203 80- 85 215 86- 88 89-114 115-123 124 125-150 151-157 158-159 160-169 170-172 173-175 176 177 178-188 189-202 203-214 215-218 219-239 240-243 244-247 248-253 254-281 282-285 286-300 301-306 307-314 315-324 325-338 339-361 362-363 225 227 268 275 277 303 306 310 316 319 321 322 322 331 341 348 352 382 383 387 391 409 414 420 422 428 441 450 466 ♦ IB vm ONTARIO JUDICATURE ACT, 1881. i ■I )S li :t SCREDVLE— (Continued). Obderb. Rules. Paoe. 40. Attachment of the Peraou 364-.166 467 41. Attachments of Debts 366-.378 470 42. Writ of Possession (Lands) 379-381 484 43. Writ of Delivery (Chattels) 382 486 44. Change of Parties by Death, &c 383-391 487 45. Transfer and Consoliilation of Actions 392-395 493 46. Interlocutory Orders as to Mandamud, Injunctions, or Interim Preservation of Property, &c 396-403 497 47. Motions and other Applications 4(,4-411 503 48. Applications at Chambeis 412-414 607 49. Officers and Offices 415-427 510 50. Costs 428-450 523 51. Notices and Paper, &c 451-453 550 52. Time 454-463 550 53. Affidavits 464-470 556 54. Divisional and other Courts 471,472 558 65. Effect of Non-compliance iind Errors 473,474 659 66. Accountant's Office 475-479 560 57. Sittings and Vacations 480-483 563 68. Exceptions from the Rults 484 565 59. Forms 485 566 60. County Courts 486-490 566 61. Interpretation 491,492 569 62. Pending Business 493,494 569 ADDITIONAL RULES. Rules of Supreme Court of Judicature 572 Rules of High Court of Justice 590 Tarififof Costs 592 FORMS. A. Part I.— Wnts of Summons, &c 609 Part II. — Section 1. Money claims — no Special Indorsement 611 " 2. Indorsement for Costs, &c 613 " 3. Damages and other claims 613 *' 4. Special Indorsement under Order 3, Rule 4 617 " 5. Indorsement of Character of Parties. . . 618 " 6. Indorsements of Equitable Claims.... G19 B. Notices, &c ., 621 C. Affidavits 630 D. Pleadings 633 E. Praecipes 654 F. Subpoenas, &c., for examination of witnesses 660 G. Certiorari and Prohibition 664 H. Orders 665 I. Forms of Judgment 681 J. Writs of Execution 691 Appendix. — Orders of the Court of Appeal 696 Index 721 Abbott Abbott A Abbott Abbott 1 A. B. & Abell V. Abell v. Abell v. Abell V. Abell V. Abouloff 297, Abud V. Adair v. Adams, i Adamson Adamson Adcock V, Aderis v. Agar Ellis Agnew V. Aitcheson Aitken v. Ai'^k.-, V. Alcock, ex Alden v. I: Alexander Alexander Alexander Allan v. Bi Allan v. Gi Allan v. M Allan, i'e, 155, 16 Allan V. P3 Allchin V. 1 Allhusen v. Allen V. Di( Allen V. Gl( Allen V. Ke Allen V. Ma Alsager v. C Ambroise v. Ambrose L Taylor's Amer v. Ro^ Ames V. Bid Ameuny v ' 221. Amos V. Cha TABLE OF CASES CITED. 30 33 54 60 64 B65 Abbott V. Andrews, Pt'lS. Abbott V. Canada Central Ky Co. , 334. Abbott V. Fearv, 567. Abbott V. Parlitt, '273. A. B. & C. D., Jx'e, 546. Abell V. Hilts, 46y. Abell V. Kirk, 35>3. Abell V. Leadley, 3U3. Abell V. Parr, 489. Abell V. Weir, 154. Aboulotr V. Oppenheinier, 238, 239, 297, 333. Abud V. Riches, 468, 469. Adair V. Young, 421, 701, 702. Adams, lie, Adams v. Muirhead, 143. Adamson v. Adamson, 16, 134, 6i>9. Adamson v. Tufi', 18, 282. Adcock V. Peters, 165. Aderis v. Thrigley, 294, 326. Agar Ellis, re, 40. Agnew V. Plunkett, 602. Aitchesoii v. Mann, 393. Aitken v. Dunbar, 282. Ai^'i' ■> V. Wilson, 394. Alcock, ex p., 469. Alden v. Boomer, 478. Alexander v. Campl)ell, 90. Alexander v. Diamond, 354. Alexander v. Mendl, 90. Allan V. Brown, 87. Allan V. Greenslade, 82, 88. Allan V. Mc'lavish, 698. Allan, re, Pocock v. Allan, 140, 152, 155, 169, 180, 517. Allan V. Pyper, 179. AUehin v. Buffalo, &c., 488. AUhusen v. Labouchere, 357, 369. Allen V. Dickenson, 55. Allen V. Globe, 532. Allen V. Kennett, 272. Allen V. Mathers, 398, 405. Alsager v. Crisp, 200.; Ambroise v. Evelyn, 309, 311, 320, 396. Ambrose Lake Tin & Copper Co. Taylor's Case, (597. Amer v. Rogers, 243. Ames V. Birkenhead Docks, 476. Ameuny v. Nabob Naziu of Bengal, 221. Amos V. Chad wick, 496. Amthill, The, 30. Anderson v. Anderson, 414. Anderson v. Bank British Columbia, 352, 367, 368, 372, 373, 374. Anderson v. Titmas, 427. Anderson v. Towgood, 495. Antlerton v. Yates, 237. Andrew v. Aitken, 282, 490. Andrews, re, 38. Andrews v. Bohanuon, 449. Andrews v. Eaton, 81. Andrews v. Stewart, 220, 427. Andrews v. Stuart, 404, 427. Angell V. Felgate, 72. Anglo- It.alian Bank v. Davies, 30, 36, 453, 454. Angic-Itaiu M IWik v. Wells, 220, 221 . Anglo- French » Jo-operative Soc, 470. Ansell V. Evans, 19. Anthony v. Halstead, 421 Applet' 111 V. Ciiapel Tuva Paper Co.» 22y. Arcodeckne, n , \tkins v. Arcedeckne, 140, 2.S;{. Archer v. Severn, 708. Arkell v. Geiger, 138. Arkwright v. Newbold, 294, 532. Armitago v. Aiinitage, 157. Arraitage v. Fitzwiliuim, 179. Armour v. Roliertson, 190. Armour v. Walkei-, 415, 417. Armstrong v. Cayley, 505. Armstrong v. Gage, 14. Armstrong v. Mcmtgomery, 534, Arnold V. Arnold, 320. Arnott, re, 152, 154, 516. Artistic Colour Co. , re, 494. Ashley v. Ashley, 273. Ashley v. Taylor. 252, 290, 324, 441, 487, 488, 489, 508, 560. Ashworth v. Outram, 51, 55. Askew v. X. E. Ry. Co., 288, 326. Askew V. Peddle, 4i9. Aslatt V. Corporation of Southampton, 29, 30. Asquith V. Molineaux, 394. Associated Home Co. v. Whichcord, 259, 264, 266. Aston V. Hurwitz, 167. Atherley v. Harvey, 41, 367. o i H'. ■ ONTARIO JUDICATUKE ACT, 1881. Atkins, re, 488, 491. Atkiu's Estate, re, 132, 490. Atkins V. Taylor, 223, 306, 312. Atkinson v. Ellison, 91, 284. Attenborough v. London & Telephone Co , 32. Atty.-Gen. v, Bermondsey, 232. Atty.-CJen. v. Birmingham, 332, 249, 255 490. Atty.-Gen. v. Campbell, 334. Atty.-Gen. v, flooper, 333, 336. Atty.-Gen. v. Council of Birmingham, 255. AttyT-Gen. v. Dorking, 31, 33. Atty.-Gen. v. Emerson, 370, 375. Atty.-Gen. v. Etongh, 388. Atty.-Gen. v. GaskUl, 290, 352. Atty -Gen. v. Metropolitan District Ry. Co., 410. Atty.-Gen. v Midland Ry, Co., 299, 332, 335, 340. Atty.-Gen. v, Nethercoat, 328. Atty.-Gen. v. Noyes, 49. Atty.-Gen. v. Panther, 275. Atty.-Gen. v. Shrewsbury Bridge, 135. Atty.-Gen. v. Tomline, 406, 450» 508 Atty.-Gen. v. Toronto Street Ry. Co., 135. Atwood V. Chichester, 206, 238, 242, 404. Atwood V. Miller, 284, Atwool V. Merryweather, 254. Augustinus v. Jxerinckx, 167. Austen v. Bird, 255. Awbery v. McLean, 123. Babcock, re, 140, 438. Backhouse v. Siddle, 481. Bacon, re, 546. Bacon v. Bacon, 373. Bacon v. Turner, 196. Badische Anilin, &c., v. Levinstein, 370. Baggalay v. Borthwick, 72. Bagot V. Easton, 232, 257, 260, 266, 270, 274. Baguley v. Markwick, 85. Baker v. Hunter, 89. Baker v. Oakes, 525, 554. Baker v. Stephens, 93. Baigent v. Baigent, 468, 470. Bailey v. Birchall, 141. Bailey v. Monteith, 19, 140. Bainbridge v. Blair, 372. Baines v. Bromley, 281, 315, 529. Baines v. Wormsley, 539, Baird v. Story, 475, Baldwin v. Borst, 338. Ballard v. Tomlinson, 470. Baltic Co. V. Simpson, 411. Bank B. N. A. v. Eddy, 60, 61, 62, 98, 352, 356, 406. Bank B. N. A. v. Laughrey, 478. Bank of Commerce v. Bank B. N. A, 252, 259. Bank of Hamilton v. Blakeslee, 186, xSank of Montreal v, Oamei-on, 216, 398, Bank of Montreal v. Cousins, 338. Bank of Montreal v. Ketchum, 455, Bank of Montreal v. Wallace, 455. Bank of N. S, v. La Roche, 536. Bank of Ottawa v. McLoughlin, 123, 442, Bank of Toronto v. Burton, 478, Bank of U, C. v, Wallace, 480. Bank of Whitehaven v, Thompson, 179. Banks v. Banks, 87. ! Banner v. Berridge, 24. Banner v. G. W. R., 30, Bannicott \, Harris, 323, Banque Franco Egyptienne v. Luts- cher, 415, Barber v. Bingham, 123, Barber v, Blaiberg, 280, 283, 286. Barber v. Mackrell, 41. Barber v, Morton, 594, 707. Barber v. Palmer, 304. Barber v. Russell, 217, Bardell v. MiUer, 168. Bardwell v. Sheffield Water Works Co., 388. Barker v. Cox, 270. Barker's Estate, re, 437, 505. Barker v. Furze, 402, Barker v. Hemming, 540. Barker v. Walters, 244. Barker v. Westover, 243. Barker v. Wood, 167. Barlow v. Bailey, 500, Barnaby v. Tassell, 388, Barnard v. Wieand, 438. Barnicott v. Hann, 311. Barnes v. Addy, 232. Barnes v. Barnes, 299. Barraclough v. Greenhough, 463. Barrett v. Campbell, 199, 592. Barry v, Barry, 143. Barry v. Brazil!, 140, 276. Barter v. Debeux, 488, 490. Bartlett, re, 39. Bartlett v. Bartlett, 49o. Bartlet Bartleti Barthol Barthol Barton Barwich Bastou Sates v Batley \ Battley Batty V. Baynard Bayley Beale v Beall V, Beaney v Beardmo Beardsall Beasley v Beaton v. Beattie v, Beatty v. Beaty v. ] Beaver v, Becher, re Beck V. b Beckett v, Beckingha Beckitt V. Beddall v, Beddingtoi 174, 11 Beddow v. Bedwall v. Begg V. Co( Bell, re, 141 Bell V. Cha Bell V, Lani Bell V. Low Bell V, N, S Bell V. Post] Bell V, Wilk Bell V. Vine Belmonte v. Belt V, Law< Benbow v. L Benecke v. ( Benecke v. „ 264, 265 Benjamin v. Bennett v. I Bennett v. L Bennett v. M Bennett v. S Bennetto v. ] Benschor v. ( Benson v. Ha TABLE OF CASES CITED. XI Bartlett v. Roche, 289. Bartlett v. Ward, 141. Bartholomew v. Freeman, 499. Bartholomew v. Rawlings, 283. Barton v. Hubertus, 76, 93. Bar wick v. Barwick, 271. Baston v. Bradshaw, 289. Bates V. Townley, 92. Batley v. Kynock, 499. Battley v. Sears, 455 Batty V. Clever, 435. Baynard v. Simmons, 479. Bayley v. Miles, 390. Bealev. Ruston, 245. Beall V. Smith, 276. Beaney v. Elliott, 226. Beardmore v, Gregory, 238. Beardsall v. Gheetham, 495. Beasley v. Chapman, 485. Beaton V. Boomer, 535. Beattie v. Barton, 472, 475. Beatty v. Mair, 281. Beaty v. Bryce, 53, 138. Beaver v. Boardman, 98, 343. . Becher, re, 546. Beck V. Dear, 252. Beckett v. Attwood, 55. Beckingham v. Owen, 220. Beckitt V. Wragg, 536, 699. Beddall v. Maitland, 281, 282, 303, 306. Beddington v. Beddington, 161, 173, 174, 190. Beddow v. Beddow, 29, 33, 34, 81. Bedwall v. Wood, 73. Begg v. Cooper, 219. Bell, re, 142. Bell V. Ohamberlen, 371. Bell V. Landon, 534. Bell V. Lowe, 226. Bell V. N. Staffordshire Ry. Co., 572. Bell V. Postlethwaite, 72. Bell V. Wilkinson, 98, 341. Bell V. Vincent, 178. Belmonte v. Aynard, 535. Belt V. Lawes, 288, 427. Benbow v. Low, 290. Benecke v. Craddock, 280. Benecke v. Frost, 197, 258, 262, 263, 264, 265. Benjamin v. Saulez, 368. Bennett v. Bennett, 534. Bennett v. Lord Bury, 496. Bennett v. Moore, 429, 438. Bennett v. Sprague, 240. Bennetto v. Beunetto, 154. Benschor v. Coley, 48. Benson v. Hadfield, .340. Benson v. Paull, 31. Benton v. Polkinghorne, 316, Berdau v. Greenwood, 14, 311, .349, 350, 415. Berney v. Sewell, 36. Bergman v. McMillan, 243. Berkeley v. Discount Co., .355. Bernard v. Harwick, 291. Berridge v. Roberts, 220. Berry v. Exchange Trading Co., 505. Berry v. Keen, 36. Berry v. Zeiss, 242. Bertolacci v. Johnstone, 320. Besant, re, 40. Besant v. Wood, 20, 278. Best V. Pembroke, 471. Bethell v. Casson, 369. Betts v. Cleaver, 549. Betts V. Doughty, 324. Bewicke v. Graham, 368, 370, 374, 375. Beynon v. Godden, 261, 267. Bianca, The, 264. Bidder v. Bridges, 414. Bidder v. McLean, 336. Bigelow V. Cleverdon, 72. Bigsby v. Dickinson, 14, 404, 405, 509. Billington v. Provincial Ins. Co., 702. Bingham v. .Alexander, 232. Birch V. Birch, 4/3. Birch V. Mather, 'i90. Birch V. Williams, 403. Birchall, re Wilsoa v. Birchall, 237. Bird V. Heath, 44;). Bird V. Matthews, 252. Birmingham, &c., v. Ratcliff, 72. Birmingham Estates Co. v. Smith, 281, 287, 315. Biscoe v. Ward, 267. Bishop of Winchester v. Bowker, 369. Bisset V. Strachan, 316, 592. Bissicks V. Bath Colliery Co. 459. Black V. Black, 55. Blackburn v. Brooks, 410, 411. Blackburn v. Cameron, 393 .| Blackburn v. McKinlay, 238, 239. Blackburn Union v. Brooks, 231 ; Blackmore v. Edwards, 325. Blain, ex. p. 245. Blain v. Blain, 507. Blain v. Terry berry, 141. Blaina Iron Co. v. Garbutt, 264. Blair v. Jones, 89. Blake v. Albion L. I. Co., 278, 288, 326. Blake v. Appleyard, 315. Blake v. Building & Loan Ass. 156. I Blake v. Lever, 191. Xll ONTAUIO JUDICATUftE ACT, 1881, Blake & Co. v. Moore, 248, 333. Blake v. Smith, 275. Blauchard v. Snider, 76, 84. Blaney v. Mc(irath, 531. Bland v. Andrews, 477. Blasdell v. Baldv/in, 154. Blaylock v. McFarlaue, 156. Bleecker v. Loyall, 88. Bleeuker & Hendeison, >•<-, 543. Blenkhorn v. Penrose, 323. Blevins v. Madden, 484. Blewitt V. Dowling, 20, 34, 501. Blight, re, Bliglit, v. HartuoU, 325. Bloomfield v. Brooke, 470. Blouut, /•<;, 165. Bloxam v. Metropolitan, &c., 21. Blyth & Fanshawe, ve, 608. Blyth & Young, re, 696, 698. Board of Education of Napanee v. Corporation of N.apanee, 30. Boddy V. Wall, 98, 328, 329. Bogg V. Midland, 388. Boice V. O'Loane, 533. Bolcklow V. Fisher, 368. Bolinghroke v. Kerr, 273. Bolkow V. Foster, 356. Bolton V. Bolton, 317, 319, 458, 459. Bolton V. Corp. of Liverpool, 369. Bolton V. London School Board, 502, 508. Bonner v. C. W. l{y. Co., 33. Booth V. Briscoe, 229, 270, 426. Booth V. TraiJ, 477, 478. Bordier v. Hmrcll, 60. Borough V. James, 265. Borrowdale v. Kitchener, 86. Boswell V. I'ettigrew, 1.36. Bottomley v. Buckley, 79. Bouch V. The Seven Uaks &c. Ry. Co. , 478. Boultbee v. Cameron, 336. Boulton V. The Church Society, 6. Boultou'a Trusts, n-, 291. Bourke v. Alexandra Hotel, 328. Boustead v. Wliitniorc;, 239. Bowen, /v, Bennett v. Howen, 169, 220. Bowens v. Williams, 81. Bower v. Hartley, 258, 259, 262, 263, 264, 267. Bowey v. Bell, 525. Bowker v. Kesteven, 315, 529. Bowman v. Bowman, 479. Bowniun v. Masson, 460. Bowman v. Sutherland, 366. Bowyear v. Pawson, 220, 280. Boyd v. Haynes, 476, 478. Boyd v. McNutt, 557. Boyd's Trusts, ir, 493. Boyle v. Bettws Llantwit Colliery Co., 34, 37, 38. Boyle v. Humphrey, 87. Boyle v. Wiseman, 369. Boynton v. Boynton, 491. Boyse, re, Crofton v. Crofton, 415. Bradbury v. C!ooper, 290. Bradford, re, 51, 524. Bradlaugh v. The Queen, 294. Bradley v. Clarke, 259, 263, 366. Bradley v. Mcintosh, 369. Braginton v. Yates, 65, 68. Brandon, re, 40. Brandreth v. Sears, 272. Brandreth's Trademark, re, 524. Branford v. Branford, 373. Brannen v. Jarvis, 393. Branwhite's case, 221. Brassington v. Cussons, 429, 439. Breckenridge V. Ontario Loan & Deposit Co., 510. Bree v. Marescaux, 193. Breslauer v. Barwick, 293, 302. Brett v. Smith, 163. Brewer v. Yorke, 702. Brewster v. Durrand, 435. Brewster v. Thorpe, 203. Brice v. Bannister, 26. Bridgewater v. DeWinton, 371. Brigham v. Bronson, 363. Bright v. Marner, 278. Bright v. Tyndall, 388. Bristol & Somerset lly., re, 31. Britain v. Kossiter, 18. British American Ins. Co. v. Wilkin- son, .371. British Mutual Investment Co. v. Pilkington, 502. Broadhurst v. Willey, .351. Brockington v. Palmer, 32. Brocklebank v. East London Ry. Co , 38. Brocklebank v. King's Lynn Steam- ship Co. , ,533, 534. Brockville, &c., v. Canada Central, 460. Broder v. Laillard, 69, 411. Brondey, re, 144. Brook, /•(', 65, 66. Brook, re, .Sykes v. Brook, 67. Brooke v. McLean, 235. Brooke v. Mitchell, 83. Brooke v. VVigg, 420. Brooks V. Aylmer, 222. Brough V. Brantford Ry. Co., 430, 53L Brown, re. 157. Browr Brown Brown BroHrn Brown Brown Brown Brown Brown Brown Brown Brown Brown Brown i Brown i Brown ^ Brown ^ Brown \ Browne Brownin Bryan v. Bryant, Bryant v Bryce v. Bucke V. Bucke V. Buckley ' Buckton Budd V. Budding Buililer v Building , . 124, Buist V. I Bulkley v Bullen V. BuUey V. Bullock V. Bulman v. Buun V. B Burchell v Burdick v. Burgess, r, Burgess, re Burgoine v Burk V. Br Burke v. K Burnell v. Burnett v. I Burnham v, Burns v. C Burns v. C Burrard v. Burrittv. IV Burridge v. Burrowes v. Burrows v, TABLE OK CASES CITED. • • • xm Brown, re, & Overholt, 89. Brown, re, Ward v. Morse, 529. Brown v. Bcmmidge, 472. Brown v. Blackwell, 300. Brown v. Brown, 154. Brown v. Capron, 269, 364. Brown v. Collins, 12. Brown v. Lake, 149. Brown v. McGuffin, 479. Brown v. MoKenzie, 520. Brown v. Merills, 478. Brown v. Morgan, 218. Brown v. North, 240. Brown v. Pearson, 436. Brown v. Sewell, 549. Brown v. Shaw, 505, 567. Brown v. Weatherhead, 237. Brown v. White, 411. Browne v. Emerson, 72. Browning v. Sabin, 469. Bryan v. Mitchell, 62. Brj'ant, re, 35. Bryant v. Bull, 37, 452, 453. Bryce v. Mclntyre, 370, 469. Bucke V. Bucke, 605. Bucke V. Murray, 98, 395. Buckley v. Ouillette, 455. Buckton V. Hiffgs, 351, 526. Budd V. Davison, 406, 411. Budding v. Murdock, 324. Builder v. Kerr, 476. Building & Loan Co. v. Heimrod, 124, 126, 442. Buist V. Bridge, 456, 470. Bulkley v, Hope, 388. Bullen V. King, 71. 72. BuUey v. Bulley, 235. Bullock V. Corry, 373. Bulman v. Dixon, 375 Buun V. Bunn, 369. Burohell v. Pugin, 480. Bur.iick v. Garrett, 702. Burgess, re, 237. Burgess, re, Bottomley v. Burgess, 237. Burgoine v. Taylor, 403, 404. Burk V. Brittain, 124. Burke v. Rooney, 342, 555. Bumell V. Burnell, 438. Burnett v. Union Mut. F. Ins, Co., 296. Burnham v. Jones, 188, Burns v. Chamberlin, 72, 76. Burns v. Chisholme, 342, 537. Burrard v. Calisher, 66, 67. Burrittv. Murdock, 292, 346, 429, 505. Burridge v. Nicholetts, 300. Burrowes v. Forrest, 79. Burrows v. Leavens, 412. 123, Buratall v. Beyfus, 232. Burstall v. Fearon, 491. Burt, re, 83. Burt v. British Nation Life Ass. Assoc, 244. Burton v. Roberts, 478. Bush V. Beavan, 31. Bush V. Trowbridge Water Works Co., 334. Bustros V. Bustros, 161, 205. Bustros V. Lenders, 91. Bustros V. White, 41, 98, 269, 367, 368, 372, 373, 374, 376. Butcher v. Pooler, 526. Butler V. Butler, 25:, 260, 265. Butler V. The Standard Fire Ins. Co., 701. Butterworth v. Tee and Wife, 218. Buxton V. Monkhouse, 36. Byam v. Byam, 388. Byrch, re, 546. Byrd v. Mann, 52. Byrd v. Nunn, 301. Byrne v. Box, 439. Byrne v. Muzio, 294. Bywater v. Dunne, 442, 534. Cabburn, re, 526. Cabburn, re. Gage v. Rutland, 525. Cade V. Newhall, 156. Cairns v. Water Commissioners of Ottawa, 300. Caisse v. Tharp, 479. Caister v. Chapman, 265. Caley v. Caley, 237. Caldwell v. Pagham Harbour &c. Co. 135, 162, 326. Callandar v. Hawkins, 306. Callandar v. Wallingford, 265, Calder v. Gilbert, 73. Callard v. P.itterson, 86. Calley v. Richards, 372. Calt v. Tourlf. 372. Calvert v. Linloy 340. Cambrian Co., re, 354. Cambrian Mining Co., re, 29. Cameroy, re, 519, 516. Cameron v. Baker, 180. I Cameron v. Fager, 488, 491. I Cameron v. Lei-oux, 157. I Campan v. Lewis. 159, 160. ; Campbell v. Bell, 139. I Campbell v. Campbell, 157. Campbell v. Edwards, 702. I Campbell v. Holyland, 255, 489, 540. j Campbell v. McArthur, 376. Campbell v. Pedin, 479. ■im XIV ONTARIO JUDICATURE ACT, 1881. Campbell v. Robinson, 267. Campbell V. Royal Canadian Bank, 700. Campbell v. Taylor, 187. Campbell v. Tucker, 366. Canada ( 'entral v. McLaren, 63. Canada Central Ry. Co. v. Murray, 719. CanadaLandedCreditCo. v. Callaghan, 169, 309. Canada Lauded Credit Co. v. Mc- Carthy, 218. Canada Landed Credit Co. v. Thomp- son, 427, 431, 435. Canada Permanent, etc. v. Foley, 170, 392. (Janada Perm. B. S. Co. v. Forest, 354. Canada Southern v. Norval, 83. Canadian Bank of Commerce v. Bruce, 136. Canadian Bank of Commerce v, Bricker, 218. Canadian Bank of Commerce v. Crouch, 480. Canadian Bank of Commerce v. Tasker 137. Canadian Oil Works v. Hay, 309. Canadian Securities Co. v. Prentice, 283. Canadian Securities Co. v. Prentiss, 322. CannifiFe v. Taylor, 179. Cannot v. Morgan, 493. Canty v. Gyll, 352. Cape Breton Co. v. Fenn, 254. Capes V. Brewer, 181, 501, Cappeleus v. Brown, 285. Caradice v. Currie, 404. Carew v. Christopher, 284. Carey v. Cuthbert, 373. Cary v. Hills, 142. Cargill V. Bower, 325, 330. Carlisle v. Belfast Board, 317. Carnegie v. Federal Bank, 413. Caroli v. Hirst, .'502. Carpenter, re v. Wood, 140. Carroll, re, 533. Carroll v. WiUiams, 534. Carron iron Co., The v. Maclaren, 187. Carta Para Gold Mining Co. v. Fast- nedge, 222. Cartsburn. The, :57, 262, 264, 267. Carter v. Stewart, 138. Carter v. Stubbs, .342, 522, 555, 697. Cartwright v. Hinds, 504. Carver v. Pinto Leite, 368. Carvick v. Young. 199. Cary v. Cumberland, 383. Casey, jy, 415. Casey v. Arnott, 193. Cashin v. Craddock, 278, 326, 362. Cashin v. Perth, 340. Cass V. Fitzgerald, 377. Caasell, re, 93. Cassiopeia, 163. Castro V. Murray, 21. Caswell V. Groucutt, 88. CasweU v. Murray, 532, 534. Catling V. King, 297. Cattanach v. iTrquhart, 203. Catton V. Bennett, 257. Caughill V. Clark, 207, 323, 326. Cavallier v. Michael, 207. Cavanagh v. Hastings Mutual, 209. Cayley v. Hodgson, 267. Cecil V, Bribes, 495. Central African Trading Co. v. Grove, 280. Central News v. Eastern Tel. Co., 370, 376, 378. Cercle Restaurant Co. v. Lavery, 20. Cerriby v. Wells, 364. Chalk V. Raine, 437. Chamberlain v. Armstrong, 194, 206, 211. Chamberlain v, McDonald, 336. Chamberlen v. Clark, 140. Chambers v. Kingham, 26. Chambers v. Unger, 5.34. Champion v. Formby, 306. Chapman, re, 605. Chapman v. Biggs, 479. Chapman v. Day, 489. Chapman v. Mason, 494. Chapman v. Smith, 396. Charles Napier, The, 332. Charlton v. Charlton, 548. Charlton v. Coombes, 369. 373. Chatfield v. Sedgewick, 315, 529. Chatham & Dover E. v. The Erie & Huron Ky. Co., 699. Chatterton v. Watney, 477, 481. Chennell, re, 524. Chesterfield v. Black, 325, 330, 342. Chichester v. Donegall, 371. Chichester v. Gordon, 476. Child V. Stenning, 231, 232, 270. Chilton V London, 437. China Trans-Pacilic S. S. Co. v. Com- mercial Union, 365. Chorlton v. Dickie, 306, 402, 403, 488. Chowick V. Dimes, 491. Christie v. Christie, 278, 326. Christie v. Conway, 138, 523. Christie v. Dowker, 214. Christie v. Noble, 81. Christ Churc Churc Churc. Churto Citizei Citizen City B Clageti Clagetl Clancy Clapart Clarbrc Clark, : Clark V Clark V Clark V Clark V, Clark V, Clark V. Clark V. Clark V. Clark V. Clark V. Clark V. Clarke, » Clarke v, Clarke v Clarke v, Clarke v. Clarke v. Clarke v. Clarke v. Clarkson Claydon a Olegg V, I Clements Olendinnii Cliffe V, V Cliffoi-d V. Clinch V. Cline V. AJ tory, ; Close V O' Clow V. Hi Clow V. Hi Cobbett V. Cobbold V. Cochrane v Cochrane v, Cocliraue v, Cockle V. ,J Cockshott ' 402. Coddington ^^ , Mobile Cohen v. Bh TABLE OF CASES CITED. XV Christopher v. Xoxon, 545. Church V. Barnett, 392. Church V. Fuller, 524. 525, 526. Church V. Marsh, 504. Churton v. Frewen, 372. Citizens Insurance v. Campbell, 291. Citizens Ins. Co. v. Parsons, 703. City Bank v. Scatcherd, 141. Clagett, re Fordham v. Clagett, 22. Clagett, re, 55. Clancy v. Clancy, 88. Claparade v. Commercial Union, 324. Clarbrough v. Toothill, 9, 98, 104. Clark, re, 139, 546. Clark V. McDonald, re, 123. Clark V. Anger, 518. Clark V. Baker, 196. Clark V. Bradlaugh, 162. Clark V. Callow, 297, 307. Clark V. Clark, 155, 480, 484. Clark V. Cullen, 458. Clark V. Molyneux, 435. Clark V. St. Catharines, 533. Clark V. Skipper, 60, 62. Clark V. Ware, 74. Clarke, re, 40. Clarke v. Bradlaugh, 339. Clarke v. Cookson, 60, 392. Clarke v. Creighton, 242. Clarke v. Farrell, 136. Clarke v. McEwing. 308. Clarke v. Stocken, 81, 94, Clarke v. Yorke, 324. Clarkson v. Scott, 214 437. Claydon v. Finch, 452. Clegg V . Edmonson, 369, 378. Clements v. Norris, 493. Olendinning v. Varcoe, 412. Oliflfe V. Wilkinson, 536. Clifford V. Budds, 221. Clinch V. Financial ( 'orporation, 372. Cline V. Mountain View Cheese Fac- tory, 360. Close V O'Brien, 217. Clow V. Harper, 66, 68, 72. Clow V. Milliard, 230, 231. Cobbett V. Field, 21. Cobbokl V. Pryke, 19. Cochrane v. Boucher, 49. Cochrane v. Fearon, 535. Coclirane v. Willis, 333. Cockle V. Joyce, 348, 403. 404. Cockshott V. Lond(m Gen. Cab (Jo., 402. Coddington v. Jacksonville, Pensacola, Mobile Ry. Co., 438, 499. Cohen v. Bulkley, 496. Cohen V. Hall, 479. Colbourne v. Colbourne, 29, 37. Colbourne v. Thomas, 608. Cole V. Beale, 532. Cole V. Campbell, 137, 423. Cole V. Glover, 143. Cole V. Sherrard, 173. Cole, Marchant & Co. v. Frith, 530. Colebourne v. Coleboume, 159, 163. Coleman v. Cork & Youghall Ry., 88. Coles V. Civil Service Supply Ass. Co. , 265. CoUambell v. Flight, 303, 320. College of Christ's Hospital v. Martin, 42. CoUett v. Dickenson, 238. CoUett v. Preston, 320. Collette v. Goode, 301, 323, 325. Collie, re, 258. Collins, re v. Water Commissioners, 82. Collins V. Orme, 438. Collins V. Vestry of Paddington, 54. 697. Collins V. Welsh, 525. CoUver v. Swayzie, 236, 303, 516. Colonial Ins. Corp v. Prosser, 290. Colonial Trusts v. Cameron, 404. Colquhoun & Berlin, re, 76. Colton, re, 140, 142. Colton, re, Fisher v. Colton, 142, 236. Commercial Bank v. Jarvis, 477. Commissioners of Sewers v. Gellatly, 243. Commissioners of Sewers v. Glass, 290, 369. Commissioners of Waterford v. Veale, 265. Compagnie du Senegal v. Smith, 90. Compagnie Financiere &c. v. Peruvian Guano Co., 355, 370, 376. Compton V. Preston, 272, 286. Condor, The, 526. Conger v. McKechnie, 383. Conn V. Garland, 452. Conners v. Birmingham, 123, 124. Connolly v. O'Reilly, 699. Connor v. McCormack, 88. ConoUy v. Hill, 592. Consolidated Bank v. Bickford, 459. Consolidated Bank v. Neilon, 355. Consolidated bank v. ^Valbrillgc, 433. Conybeare v. Lewis, 162, 244, 317. Cook V. Credit Valley R'y Co., 456, 469. Cook V. Dey, 180, 181, 292. Cook V. Enchmarch, 272. Cook V. Fearn, 245. ; 4 'El t\ 1 •ii 1 i i ■ XVI ONTARIO JUDICATURK ACT 1881, Cook V. Fryer, 240. Cook V. Grant, 24. Cook V. Heynes, 437. Cook V, Tomlinaon, 410. Cooke V. Newcastle, 69, 70. Cooke V. Oceanic Steam (Jo. , 98, 366. Coolidge V. Bank of Montreal, 462. Cooney v. Girvin, 238. Cooney v. Nicholls, 705. Cooper, re, Cooper v. Veaey, 235, 244. Cooper V. Blissett, 165. Cooper V. Brayne, 481. Cooper V, Central Ontario Ry. , 82. Cooper V. Cooper, 702. Cooper V. Crabtree, 34. Cooper V. Dixon, 711. Cooper V. Ewart, 545. Cooper V. Ince, Hall & (Jo., 500. Cooper V. Kirkpatrick, 534. Cooper V. Lane, 181. Cooper V. Vesey, 9, 525. Cooper V. Whittington, 526. Coots V. Coots, 362. Copley V. Jackson, 289. Copp, re, 504. Corcoran v. Robb, 289. Cormack v. (irofrian, 251. Corner v. Shew, 273. Cornish v. Manning, 162, 198, 206, 551. Corporation of Cork v. Rooney, 30, 33. Corporation of Hastings v. Ivall, 372. Corporation of Peterboro' v. Wils- thorpe, 12. Corrie v. Allen, 261, 262, 264. Corsellis, re, Lawton, v. Elwes, 364. Cossey v. Ducklow, 550. Cossey V. London. Brighton, &c. Co., 373. Cotton V. Corby. 701. Cotton V. Housnian, 167, 310. Cotton V. Vanstittart, 480. Coughlan v. HoUingsworth, 529. Coughlan v. Morris, 350. Coulbourn v. Carshaw, 180. Coulson V. Spiers, 132, 136, 517. Court V. Holland, 358. Cowan V. McQuade, 124. Cowan's Estate, re, 476, 477. Cowbuni, re, ex parte Firth, 704. Cox V. Barker, 233, 2(59, 274, .333, Cox V, James, 254. Cox V. Keating, 319. Cox V. l{ol)ertsou, 350. Cox V. Wright, 236. Coy V. Lord Forester, 299. Cracknall v. Janson, 273, 326. Craig V. Craig, 136. Craig V. Phillips, 697, 698. Crane v. JuUion, 180, 181,. 198. Crane v. Loftus, 490. Crawcour v. Salter, 55. Crawford v. Crawford, 204, 276. CJrawshay v Collins, 74. Creaton v. Midland (i. VV. Ry. Co., 234. Credit (Jo., re, 2,11, 378. Credit Valley v. G. W. Ry. Co., 79, 83, 86. Creen v. Wright, 528. Cremetti v. Crom, 465, 471. Cresy v. Bevan, 333. Cresswell v. Parker, 192. Crippen v. Ogilvy, 414. Crockett v. Bishton, 556. Croft V. CoUingwood, 4.38. Croft V. Lumley, 201. Croggan v. Allan, 141, 524. Crom V. Samuels, 508, 5.54. Cromer v. Churt, 84, 86. Cropper v. Smith, 698. Cross V. Cross, 237. Crossfield v. Gould, 28. Crowe V. Bank of Ireland, 364. Crowe V. Barnicot, 286. : Crowe v. Stf per, 549. CJrowle V. K.issell, 19. Crozier v. Alkenbach, 438. (Jruickshank v. Corby, 79, Cruickshank v. Floating Swimming Baths Co., 64, 66, 70, 386. Crumley v. Kingston, 275, I Crump V. Cavendish, 222. j Cruse V. Kuttingell, 189. : CuUen v. Cullen, 462. CuUey, ex parte, 27. Culley V. Buttifaut, 470, 571. Culverhouse v. Wickens, 484. ' Gumming v. Low, 64, 66, 67, 69, 70. Cummings v. Birkett, 74. Cunningham v. Pearce, 202. Cunningtou v. G. E. Ry. Co., 332. j Cupples V. Yorston, 179. Curry, re, 438, 510. Curtis V. McNi -V!. Curtis V, SheiScrl ./ ; Ov^S. Curtius V. Calf. '01 . -k Cuthbert v. (.'oi' :;^oial Ass., 360, h Cuthbert v. Warniby, 145. ., Ins. 235. Traveliers' Dale V. Hall, 363. Dale V. Coon, 300. Dallas V. Glyn, 468, 469. 470. I TABLE OF CASES CITED. XVU Dallingerv. St. Albyn, 330. Daltou V. St. Mary Abbotts, 251. Daly V. Daly, 237. Dalziel v. G. T. Ry. Co., 355, 366. Danford v. McAnulty, 299. Daniel v. Ford, 358, 371. Danvillier v. Myers, 364, 380, 385. Darcy v. Whitt.iker, 135. Darling v. Darling, 365, 415, 416. Darling v. Rice, 241. Darling v. Wilson, 526. Darrant v. Ricketts, 218, 242. Daubney v. Shuttleworth, 346, 505, 552. Daun V. Simmins, 406, 435. Davenport V. Ward. 428. Davey V, Railway Passenger Ass. Co., 79. Davidson v. Douglas, 480. Davidson v. Leslie, 292. Davies v. Andrews, 463, 490. Davies v, Felix, 406, 430. Davies v. Garland, 176. Davies v. Hubbard, 552. Davies v. Marshall, 501. Davies v, Pratt, 88. Davies v. Williams, 125. Davis V. Balleuden, 206, 242. Davis V. Broodsall, 87. Davis V. Code, 216. Davis V. James, 298. Davis V. Morris, 246, 458. Davis V. Murray, 393. Davis V. Prout, 238. Davis V. The Flagstaff Mming Co. 124. Davis V, Wickson, 98, 352, 353, 359. Davis v. Yeo, 289. Davy V. Garrett, 2.32, 278, 288, 294, 326, 327. Daw V. Eley, 369. Dawes v, Thornton, 265. Dawkins v. Antrobus, 33. Dawkins v. Lord Penrhyn, 297, 301, 335, 336, 341. Dawkins v. Saxo Weimar, 21. Dawkins v. Simonetti, 33. Dawson v, Beesou, 505, 559. Dawson v. Fitzgerald, 90. Dawson v. Shepherd, 267. Day V. Beatty, 268. Day V. Brown, 14. Day V. Brownrigg, 29, 337. Day V. Radcliffe, 235, 252, 270. Dayer v. Robertson, 156, 522, 545. Deacon v. Dolby, 66, 69, 70. Dean v. Lamprey, 5.34. Dean v. Lethbridge, 292. iJean of Ely v. (iayford, 235. Dear v. Sworder, 280, 315. Dearing, re, Mitchell v. Dearing, 139. Debenham v. Wardroper, 55. DeGendre v. Bogardus, 230. DeHart v. Stevenson, 243, 251. Delafield v. Tanner, 207. Delaroque v. Oxenholme & Co., 544. Deller v. Prickett, 535. Delmar v. Freemantle, 503. DeManneville v. DeManneville, 469. Demorest v. Midland Ry. Co., 470. Denison v. Devlin, 505. Denison v. Franklyn, 217. Denison v. Hardings, 184. Denmark v. McConaghy, 357. Dennehy v. Jolly, 91. Dennis v. Crompton, 272. Dennis v. Seymour, 222. Dennison v. Mair, 78. Dent V. Dent, 452, 478. Dent V. Sovereign Life Ass. Co., 398. Denton, re, Denton v. Strong, 94. Depuy V. Welsford, 237 . De St. Martin v. Davis, 532. Desborough v. Rawlins, 373. Dessilla v. Schunck, 270, 274. Devanney v. Dorr, 73. Devitt, re, 519. Devonsher v. Newenham, 335. Dewalt V. Hughitt, 359. Dexter v. Fitzgibbon, 83, 86. Deykin v, Coleman, 505, 552. D'Hormusjee v. Grey, 532. D'Hormusjee & Co. and Isaacs & Co. v. Grey, 230. Diamond v. Sutton, 191, 197. Dick v. Milligan, 71. Dickenson v. Dutfill, 532. Dicker v. Clarke, 179. Dicks V. Brooks, 509. Dicks V. Yates, 52, 526. Dickson v. Neath, &c., Ry. So., 473. Dilke V. Douglas, 55. Dillon V Cunningham, 475. Dimes v. Grand Junction, 6. Dinn v. Blake, 82. Dinnis v. Blake, 88. Direct U. S. Cable Co. v. Dom. TeU Co., 21, 79. Dix V. Groom, ,343, 345. Dixon V. Dougan, 164. Dobson V. Dobson, .364, 376, 412. Dobson V. Marshall, 98, 180, 181. Dockstader v. Phipps, 284. Dodds V. Luke, 141. XVlll ONTARIO JUDICATURE ACT, 1881. Dodda V. Shepherd, 431. Dodge V. Clapp, 154, 157. Doe V, Araey, 86. Doe d. Mays v. Cannell, 94. Doe d. Peck v. Roe, 480. Doerr v. Kand, 532, 536 Doherty v. Allman, 30. DoUman v. Jones, 422. Dolphin V. Laytou, 477. Dominion, &c., v. Stinson, 539, 544. Donelly v. Jones, 507, 536. Donor v. Ross, 140. Donovan v. Bacon, 453. Donovan v. Boultbee, 395, 399, 523. Doremus v. Kennedy, 179. Doubledee v. Credit Valley Ry. Co., 530. Dovey v. Irwin, 382, 437. Dow V. Dickenson, 427. Dowdeswell v. Dowdeswell, 23, 235. Downey v. Roaf, 524. Doyle V. Anderson, 496. Doyle V. Douglas, 496. Doyle V. Kaufman, 176, 555. Doyle V. Owen Sound Printing Co., 311. Draggon, re, 143, 144, 247. Drake, ex parte, 486. Drakes Patent Concrete v. Dower, 34. Dresser v. Johns, 478. Driver v. Canada Permanent L. & S. Co., 266. Drummond v. Drummond, 194. Duckett V. Gover, 231, 254, 339. Duckitt V. Jones, 291, 307. Dufify V. O'Connor, 184. Duke of Northumberland v. Todd, 557. Dumble v. Cobourg & Peterboro' Ry. Co., 404. Dunbar v. Meek, 325. Duncan v. Vereker, 326. Dundas v. Gilmour, 257, 264, 267. Dundas v. Hamilton, 703. Dunkirk Colliery Co., v. Lever, 65, 66, 67. Dunlevey, re, 144. Dunn V. Ferrior, 36. Dunn V. McLean, 328, 557. Dunnard v. McLeod, 156. Dunsford, re, 413. Darling v. Wallace, 328. Durrant v. Ricketts, 242. Dutton V. Thompson, 51, 525. Dyer v. Painter, 490, 491. Dyke v. Oamiell, 70, 504. Dymond v. Croft, 189, 292, 429, 505. Dynevor, re, 491. Dynevor & Duffren Collieries, re, 132. Bade v. Jacobs, 290, 367. Bade v. Winser, 483. Eadie v. Addison, 372. Eadie v. McEwen, 449. Eager, re, 191. Eager, v. Buckley, 181. Eames v. Brady, 420. Earl v. Hunt, 190. Earl of Darnley v. London, Chatham & Dover Ry. 93. Earl of Glengall v. Frazer, 368. . Earl of Lewes v. Barnett, 470. Earl of Tyrone v. Waterford, 388. Earp V. Henderson, 298. East Assom &c., v. Roche, 221. Eastland v. Burchell, 435. Eastman v. Eastman, 240. Eaton, re, Byers v. Woodburn, 155. Eaton V. Storer, 320. Ebberts v. Ebberts, 140. Edd V. Winsor, 51. Eden v. Naish, 20. Edgington v. Proudman, 316. Edinburgh Life Ass. v. Allen, 142. Edison Telephone Co. v. India Rubber Co., 324. Edmunds v. Atty. Gen., 21. Edwards v. Aberayron, 90. Edwards v. Bennett, 486. Edwards v. Edwards, 38, 72. Edwards v. Hodges, 299. Edwards v. Lowther, 134, 231, 232, 250. Edwards v. Pearson, 545. Egremont Burial Board v. Egremont Iron Ore Co., 370, 371. Ehrensperger v. Eckerstein, 81. Eisdell V. Coningham, 480. Elderton, re, 40. Eldridge v. Burgess, 403, 488. Elias V. Griffith, 410. Elkin V. Clarke, 379. Elliot, re, 546. Elliot V. Capel, 476. Elliott V. Beard, 178. Elliott V. Callow, 350. Elliott V. Gardner, 343. Elliott V. Northern, 543. Elliott V. Queen City Ass. Co., 95. Elliott V. Royal Exchange Asa. Co., 90. Ellis V. Desilva, 528, 529. Ellis v. Munson, 282, 306. Ellis v. Robbins, 410. EUwood v. Middlesex, 73. Elora, re, v. Potter, 74. TABLE OF CASES CITED. XIX Elsom, re, Thomas v. Elsom, 237. Elwon V. Vaughan, 250. Elwes V. Elwes, 390. Emclen v. Carte, 231, 251, 252, 350, 487, 488. Emerson v. Webster, 352. Emet V, Ogden, 84. Emma Silver Mining Co. v. Grant, 396. Emmanuel v. Bridger, 481. Emmens v. Midcllemiss, 371, 377. English V. Camberwell, 500. English V. English, 142, 157. English V. Tottie, 370, 374, 380. Eppos, The, 205. Erie & Niagara Ry. Co. v. G. W. Ry. Co., 32. Erwinv. Powley, 178. Escott V. Gray, 246. Etty, re, 144. Etty V. Wilson, -430. European & American S. S. Co. v. Cross Key, 93. Evans, ex parte, 454. Evans v. Howell, re 83. Evans, re, Owen ^r. Evans, 67. Evans v. Davis, J93, 326. Evans v. Buck, 98, 231, 281. Evans v. Gann, 284, 321. Evans v. Jackson, 72. Evans v. Puleston, 32. Evelyn v. Chippendale, 532. Evelyn v. Evelyn, 288, 299, 341, 342, 395, 508. Eynde v. Gould, 469. Eyre v. Cox, 165. Eyre v. Hughes, 17, 285. Eyre v. Moreing, 281. Exchange Bank v. Newell, 155, 543, 546, 549. Exchange Bank v. Stinson, 284. Evering v. Chiffenden, 532. Ewart v. Stevens, 139. Fairclough v. Marshall, 16, 25. Fane v. Fane, 526. Farhall v. Farhall, 139. Fanners v. May, 624. Farrer v. Lacey, 211. Farrell v. Cruickshank, 142. Farrell v. Wale, 403. Farrow v. Austin, 524. Faund v. Wallace, 426, 427. Fawcus V. Charlton, 310. Felan v. McGiU, 412. Felkin v. Lord Herbert, 369. Fell V. WiUiams, 217, 437, Fellows V. Barrett, 237. Fenner v. Bedford, 34. Fenny V. Priestman, 144. Fenton v. Cumberledge, 412. Fenwick v. Baker, 159. Fenwick v. Fenwick, 140. Ferguson, re, 40. Ferguson v. Elliott, 356. Ferner v. Williams, 369. Ferris v. Ferris, 253. Fetherstone v . Cooper, 87 . Field V. Field, 494. Field V. Great Northern Ry., 528. Field V. McArthur, 242. Finch, re, 148. Finch V. The Guardians of York Union, 327, 332. Finley v. Scott, 261. Finlayson v. MuUard, 526, Finnegan v. Keenan, 395. Finney v. Hinde, 132. Firth, ex. p. re Cowburn, 704. Firth v. Robinson, 71. Firth v. Ryan, 700. Fish v. Chatterton, 189. Fisher v. Hughes, 344, 346, 380. Fisher v. Keane, 33. Fisher v. Owen, 357, 369. Fisher v. Thames June. Ry. Co., 300, Fisken v. Chamberlain, 413. Fisken v. Smith, 393, 505. Fisken v. Wride, 452. Fitch v. Walker, 176, 177. Fitten v. Dawson, 139. Fitzpatrick v. Warring, 481. Fitzsimmon v. Wilson, 166. Fitzsimmons v. Mclntyre, 270. Fitzwater, re, 347, 410. Fleming v. Hall, 460. Fletcher v. Noble, 123, 632, 535. Fletcher v. Rodden, 272. Fletcher v. Rogers, 29, 33. Fleury, re, 156. Flight v. Bollard, 237. Flower v. BuUer, 238. Flower v. Lloyd, 600. Flower v. Local Board, 335. Flowery. Low Leyton Local Board, 35. Flower v. Todd, 265. Foley v. Canada Permanent, &c., 432. Forbes v. Conolly, 452. Forbes v. Middleton, 206. Ford V. Tennant, 373. Fore Street Warehouse Co. v. Durrant & Co., 185. Forman v. Dawes, 300. Forrest v. Davies, 605. Forrest v. Laycock, 631. XX ONTARIO JUDICATURE ACT, 1881. Patterson, 140. Forrestal v. McDonald, 58. Foster, rt, 4i:i. Foster, re, Griffith v. Foster v. Alvez, 496. Fostei V. Cauley, 237. Foster v. Foster, 141. Foster V. Gamgee, 304, 306. Foster v. (i. VV. Ry., 526. Foster v. Harrison, 33. Foster v. Marshall, 142. Foster v. Morden, 156. Foster v. Stokes, 543. Foster v. Ward, 253. Fotherby v. Metropolitan Ry. " " Ashford, 468, 504. Barstow, 98, 134, 191. Bayldon, 235. Lee, 220. Knoop, 18, 259, Roberts, 478. V. V. V. V. V. V, Co., 31 Fowler Fowler Fowler Fowler Fowler Fowler Fox V. Suwerkrop, 237 Fox V. Toronto & Nipissing Ry. Co., 549, 605, 608, 702. Fox V. Wallis, 492, 509. Francis v. Francis, 440. Francis v. Gracey, 395. Franco- Egyptienne v. Lutscher, 356. Franklin, re, 471. Frasee v. McFarland, 699. Fraser v. Burrows, 364, 368, 381. Fraser v. Cooper, 313. Fraser v. Cooper, Hall & Co., 243, 244. Fraser v. Home Ins. Co., 372, 375. Fraser & Co. v. Ehrensperger, re 92. Freason v. Loe, 342, 395, 569. Freeborn v. Carroll, 142. Freed \. Orr, 14. Freel v. Mac Donald, 517, 518., Freeman v. Butler, 371. Freeman v. Cox, 438. Freeman v. 8teggall, 382. French v. Lewis, 47o. French v. Mulcahy, 223. Fried v. Galloway, 278. Friend v. London, Chatham & Dover Ry. Co., .373. Friendly v. Carter, 41, 98, 399. Fritz V. Hobson, 32, 449, 450, 525. Frost V. Brooke, 290. Fryer v. Wiseman, 308, 411. Fuggle V. Bland, 37, 453. Fuller V. Alexander, 221. Fuller V, Macklem, 437. Fuller V. McLean, 553. Fullerton v. Keely, 213. Full wood V. Full wood, 35. Fulton V. U. O. Furniture Co., 284. Furber v. King, 179. Furlong v. Carroll, 405. Furness v. Booth, 259, 260, 280. Futcher v. Futcher, 297. Gabbet v. Cavendish, 365. (iago V. Canada Publishing Co., 593, 599, 600, 601, 699. Gairdner v. Gainlner, 236. Galatti v. Wakefield, 73. Gallagher v. Gairdner, .356. Gallagher v. Nugent, 242. Gallerno, re, Grant v, McAlpine, 48. Gandee v. Stansfield, 373. Gannon v. Gibb, 72. Ganon v. Finch, 6.33, 5.36. Garbutt v. Tawcus, 19. Gardiner v. Hardy, 341, 410, 429. (jrardiner v. Harris, 532. Gardner v. Beaumoiit, 503. Gardner v. Irwin, 370, 375, Gardner's Trusts, 158. G' -lick V. Larron, 388. Ga/hug V. Royds, 470. Garnet v. Bradley, 524, 527, 528. Garth v. Cotton, 24. Gaskin v. Balls, 29, 33, 35. Gath v. Howarth, 530. Gathercole v. Smith, 279, 280, 281. Gatti v. Webster, 226. Gaudet, re, 20. (iaudet Freres Steamship Co., re, 23. Gaughau v. Sharpe, 293. Gault V. Spencer, 533. GaM'thorpe v. Gawthorpe, 30, 36. Gedye, re, 504. Gen. Finance Co. v. Liberator, 389. Gen. Share & Trust Co. v. Wetley, &c., 709. Gen. Steam Nav. Co. v. London & Edinburgh Shipping Co., 493. German Bank v. Schmidt, 221, 222. Ghent v, McCoU, 476. Gibb V, Murphy, 522. Gibbon v. Parker, 87. Gibbons v. London Financial Associa- tion, 522, 555 Gibbs v. Guild, 16, 18, 134. Gibbs V. Knightly, 72. Gilbert v. Comedy Opera Co., 421. Gilbert v. Endean, 412. Gilbert v. Jarvis, 55. Gilbert v. Smith, 429, 437, 438, 439. Gilder v. Morrison, 395, 555. Gildersleeve v. Cowan, 334. Gildersleeve v. McUougall, 192. Gill v. Woodfin, 308, 311, 347. TABLE OF CASES CITED. xxi Gilleland v. Wadaworth, 323. Gillespie v. Shaw, 459. Gillies V. McConochie, 243. Gillott V. Ker, 346, 437. Gilmour v. Strickland, 393. Ginty v. Rich, 484. Glannibanta, The, 14. Glanville's Trusts, re, 449. Glass V. Glass, 284. Glass V. Munsen, 139, 340. Gledhillv. Hunter, 271. Glossop V. Heston, Local Board, 9, 30, 33, 420. Gloucestershire Banking Co. v. Phil- lipps, 242, 262. Goatley v. Emraett, 533. Goddard v. Jeffreys, 704. Goddard v. Poole, 488. Goddard v. Thompson, 428. Goggs V. Huntingtower, 178. Godden v. Corsten, 167, 310. Godfrey v. Harrison, 239. Goldie V. Date's Patent Steel Co., 702. Golding V. Wharton, 52. Golding V. Wharton Salt Works, 326, 327. Golds v.* Kerr, 237. Goldsmidt v. Walton, 393. Goldsmith v. Goldsmith, 531. j Goldsworthy, la re, 40. Goodfellow V. Rannie, 141. Goodfellow V. Shuttleworth, 545, 608. Goodhart v. Hyett, 526. Goodred V. Teale, 72. Goodrich v. Marsh, 235. JGood«nin v. Buddin, 68. [Gordon, re, v. Bonter, 480. Gordon V. G. W. R., 697. I Gordon V. Hanna, 181. Gordon v. Jennings, 479. Gorham v. Gorham, 157 Gosset V. Campbell, 348. Gough V. Heatley, 437. iGourley v. Ingrane, 138. [Government Security Invest. Co., v. Demfrey, 286. iGovernors of Christ College v. Martin, 83. [Gowanlock v. Mann, 60. [Graham v. Campbell, 33, 501. [Graham v. Robson, 143. JGrand Junction & Masson, re, 83. iGrand Trunk Railway Co., v. Credit Valley, 32. IGrand T. Ry. Co. v. Out. & Quebec Ry Co., 504, 522, 536, 698, 699, 702. Grant v, Banque Franco Egyptienne 415, 462, 702. Grant v. Easton, 217. Grant v. Eastwood, 82. Grant v. Eddy, 332. Grant v. Grant, 139, 154, 547. Grant V. Holland. 41,98. Grant v. McDonell, 479. Grant v. Winchester, 240. Graves v. Taylor, 504. Graves v. Terry, 320, 347. Gray v. Davidson, 529. Gray v. Lewis, 233. Gray v. Stait, 59. Gray v. TurnbuU, 14. I Gray v. Webb, 278, 279, 283, 286. Great Australian Mining Co., v. Mar- tin, 190, 191. Great Northern v. Inett, 505, 540, 568. Great W. Railway Co., v. Miller, 81. Great W. Railway v. Rolph, 95. Greaves v. Fleming, 351. Green v. Browning, 192. Green v. Colby, 227. Green v. Coughlan, 351. Green v. Pratt, 275. Green v. Sevin, 282, 324. Green v. Amey, 369, 377. Green's Trustee v. Barrett, 68. Greenough v. Gaskill, 369. Greenway v. Atkinson, 27. Greenwood v. Sutherland, 388. Gresley v. Mousley, 370. Gretton v. Mees, 351. Grey's Brewery Co. , re, 354. Griffin v. Patterson, 242. Griffiths v. London & St. Katherine Docks Co., 3.32. Griggs v. Billington, 90. Grimshaw, &c., v. McDowell, 312, 344. Griswold v. Buffalo, Brantford and Goderich Ry. Co., 478. Groom re, 39. Groom v. Darlington, 140. Groom v. Rathbone, 220, 221. Guardians of Mansfield v. Wright, 66, 70. Guelph C. Co., V. Whitehead, 373. Gueret v. Young, 232. Guest V. Poole & Bournemouth Ry. Co., 31. Guillet V. Clark, 402. Gumm V. Hallett, 92. Gunn V. Trust & Loan Co., 293. Gunston v. Maynard, 218, 242. Guy v. Guy, 237. 'n xxii ONTARIO JUDICATURE Ac J', 1881. Gwalkin v. Bird, 30. fiwynne v. Roes, 478. Habershon v. Gill, 30, 600. Hack V. London Provident Building Soc, 90. Hackett v. Lalor, 219. Hadley v. McDougal, 372, Hale V. Bouatead, 332. Hale V. Kennedy, 13, 14. Hall, Ex. p., re Wood, 501. Hall V. Brand, 96. Hall V. Eve, 298, 307, 319 320. Hall V. Hall, 485. Hall V. Jupe, 426. Hall V. Ley, 468. Hall V. L. & N. VV. Ry. Co., 369. Hall V. Old Talargoch Lead Mining Co., 274. Hall V. Pritchett, 477, 479. Halleday, re, 39. HaUett V. Hallett, 93. Halliman v. Price, 529. Halliwell v. Counsell, 339. Hamburger v. Poetting, 533. Hamelyn v. Whyte, 207, 365, 369, 372, 374, 375. Hamer v. Giles, 476, 480. Hamilton v. Alford, 80. Hamilton v. Baukin, 83. Hamilton v. Davies, 180, 181, 504. Hamilton &c., v. Gore Bank, 460. Hamilton v. Johnson, 406, 4.30, 435. Hamilton & N. W. Ry. Co. & Boys, re, 76, 83. Hamilton v. Nott, 363, 374, 375. Hamilton Provident v. Cornell, 489. Hamilton v. Street, 370. Hamilton v. Tweed, 67, 156, 504, 522. Hamlyn v. Betteley, 132, 135. Hancock v. Guerin, .362. Hancock v. Hale, 526. Hancocks v. Lablache, 238, 333. Hankinson v. Barningham, 291. Hanmer v. Flight, 218, 223, 277, 288, 289. Harbord v. Monk, 289. Harding v. Barratt, 477. H.'s Estate, re, 37, 501. Hardingham v. Rowan, 191. Hardman, re, Bagnell v. Bullen, 154. Hare v. Hare, 390. Hargreaves v. Scott, 549. Harland v. Newcastle, 88. Harlock v. Ashberry, 272. Harman v. Park, 12. Harnett v. Vise, 526. Harper v. Marx, 394, 399. Harper v. Smith, .393. Harpham v. Shacklock, 52, 524. Harris, 427. Harris v. Aaron, 52, 706. Harris v. Andrews, 200. Harris v. Fleming, 192. Harris v. Gamble, 259, 280, 316, 326. Harris v. Jenkins, 288. Harris v. Meyers, 452, 470, 609. Harris v. Myers, 492. Harris v. Owners of the Franconia, 193. Harris v. Petherick, 526. VVarre, 294. f. Bottenheim, 220. /. Cornwall Mineral Ry. Co., Harris v. Harrison Harrison 706. Harrison Harrison Harrison v. G. T. Ry. Co., 366. V. Grundy, 79. V. Leach, 440. Harrison v. Leutner, 317, 539. Harrison v. Surrey Masonic Hall, 312, 344. Harrold, re, Wilde v. Walford, 540. Harry v. Davey, 251, 252, 262, 266. Harston v. Tenison, 24. Hart V. Hart, 20. Hartley V. Dilke, 181. Hartley v. Owen, 380. Hartley v. Shemwell, 472. Hartman v. Foster, 51. Hartmont v. Foster, 138, 507, 524. Hartrick v. Quigley, 144. Harvey, re, 141. Harvey v. Boomer, 240. Harvey v. Croydon, 450, 508. Harvey v. G. T. Ry. Co. & G. W. Ry. Co., 234. FTarvey v. Shelton, 83. Harvey v. Smith, 533. Harwell v. Hoogan, 288. Hastie v. Hastie, 509. Hastings v. Hurley, 189, 554. Hastings v. Ivall, 376. Hateley v. Merchants' Dispatch, 431. Hathaway v. Doig, 251, 532, 533. Hawke v. Duggan, 84, 86. Hawker, ex parte, 478. Hawkewill, ex parte, 39. Hawksley v. Bradshaw, 311, 349, Hay V. McArthur, 272. Haycock's Policy, re, 26, 27. Hayes v. Corcoran, 296. Hayes v. Hayes, 155, Hayward v. Philips, 84, Hazelfoot v, Chelmsford Local Board, 300. Head v. ', Headdon Heap v. ] Heard v. Heath v. ( Heath v. Heatley v Hedley v. I-feenan v, Heil v. La Heiron's I Helenslea, Hellier v. Heming v. Hemp v. \ Hemsworti Henderson Henderson Henderson Hendrie v. Hendrie v. Hendricks ' Henebery \ Hennessey Henry v. C< H. M. S. B( Heritage v. Herring v. Hespeler v. Hessin v. B Hester v. H Heugh v. CI Heugh v. Gi Heward v. ] Hewson v. ] Heywood v. Hibernian B; Hick V. Loc Higginbottoi Higgins V. \ Higginson v. Highton v. 1 Hilderbroom Hildige v. O' Hill v. Camp Hill V. Hart Hill V. Kirkv Hill V. Rimel Hill V. Sidebc Hill V. Wates Hilliard v. Tl Hillman v. M Hills V. Londi Hind V. Brett Hind V, Whit Hinrichs v, B( Hirons, re, 14! TABLE OF CASES CITED. XXIU Head v. Bowman, 232, 262. Headdou v. Kmmott, 236. Heap V. MarriB, 277, 288. Heard v. Borawardt, 255. Heath v. Crealock, 373. Heath v. Pugh, 272. Heatley V. Newton, 232, 250, 509, 522. Hedley v. Bates, 20, 23, 35. Heenan v. Hcenan, 16. Heil V. Lazenby, 632. Heiron's Estiito, re, 168, 469. Helenslea, The, 101, 496. HeUier v. Ellis, 352. Heming v. Swinnerton, 80. Hemp V. Warren, 177. Hemsworth v. Brian, 83. Henderson, re, 140. Henderson v. Hall, 190. Henderson v. Watson, 136. Hendrie v. Beattie, 449. Hendrie v. Neelon, 413. Hendricks v. Montagu, 323, 325. Henebery v. Turner, 437. Hennessey v. Rohmann, 500, 501. Henry v. Commercial Bank, 459. H. M. S, Bellerophon, .369. Heritage v. Ford, 629. Herring v. Bischoffscheim, 294. Hespeler v. Beck, 423, 424. Hessin v. Baine, 242, 699. Hester v. Hester, 55. Heugh V. Chamberlain, 326. Heugh V. CJarrett, 368, 375. Heward v. Heward, 698. Hewson v. Macdonald, 509. Heywood v. Sivewright, 140. Hibernian Bank v. Hughes, 395. Hick V. Lockwood, 501. Higginbottom v. Aynsley, 308, 342. Higgins V, Manning, 533. Higginson v. Hall, 364. Highton V. Treherne, 54. Hilderbroora v. McDonivld, 365, 385. Hildige v. O'Farrell, 286, 299. Hill V. Campbell, 369. Hill V. Hart Davies, 33. Hill V. Kirkwood, .32. Hill V. Rimell, 505. Hill V. Sidebottom, 218. Hill V. Wates, 270. Hilliard v. Thurston, 46, 494. Hillman v. Mayhew, 286, 493. Hills V. London Gas Light Co., 382. Hind V. Brett, 21. Hind V. Whitmore, 240. Hinrichs v. Berndes, 29, 34. Hirons, re, 141. Hirsch v. Coates, 479. Hirsch v. Thurn, 90. Hobbs V. Reid, 245. Hobbs V. Scott, 475. Hobhouse v. Court yy, 179. Hobson V. Monks, ".il9. Hobson V. Wadsworth, 196. Hoch V. Boor, 68. Hodges V. Fincham, 462. Hodges V. Hodges, 312, 336. Hodgins v. Hodgins, 183. Hodcins v. McNeil, 526, Hodkinson v. French, 455. Hodson V. Mochi, 285. Hodson V. Richardson, 496. Hogg V. Darley, 3.35. Hoggc V. Burgess, 85, 88. Holden v. Silkstonc & Dodsworth Coal & Iron Co., 496. Holgate V. Killick, 86. Hollingsworth v. Broderich, 495, 496. Holingsworth v. Hollingsworth, 636. HoUoway v. York, 286, 287, 293, 493. Holmes, re, Wright v. Weatherhead, 286. Holmes v. Hervey, i95. i Holmes v. Tutton, 480, 481. I Holt, re, 469. Holt V. Jesse, 450, 508. Honduras Ry. Co. v. Tucker, 231, 232, 2.34, 270. Hood V. Martm, 217. Hoole V. Earnshaw, 168. Hooper v. Giles, 312, 344. Hooper v. Gumm, 372. Hooper v. Maitland, 239. Hope V. Carnegie, 469. Hope V. Hope, 179, 414. Hopev. NeiU, 218. Hopkins v. Hopkins. 154. Hopkins v. Smith, 98, 400, 401. Hopkinson v. Lord Burghley, 373. Hopper V. Harrison, 154. Horkins v. Hartv, 183. Horlock, The, 34. Hornby v. Cardwell, 51, 257, 263, 264, 267, 624. Hornby v. Holmes, 179. Horrocks v. Rigby, 279, 315. Horsely v. Cox, 471. Horton and Admaston and Canada Central, re 79. Horwell v. London General Omnibus Co., 256, 257, 260, 262, 264. Hoskin's Trusts, re, 526. Hospital of St. Catherines, ex. p. 524. Hough V. Edwards, 480 If if m ^^B nil w it 1 ;p 1 1 J 1 ■1 ■■ jujM XXIV ONTARIO JUDICATUttE ACT, ISSl. i Houlding v. Poole, 22S, Hounston v. M. of Sligo, 21. Household Fire Ins. Co., v. Grant, 222. How ex. p., re Sceptre Licensed Victu- allers Ins. Co., 697. Howard v. Pobinson, 371. Howard re, Padley v. Camphausen, 161, 190. Howe V. McKernan, 370. Howell V. Jewett, 21. Howell V. Metropolitan District Ry. Co., 477. Howell V. West, 270. Howett V. Clements, 89. Howland, re, 536. Howland v. Grierson, 187. Hewlett V. Wilbraham, 276. Huckle V. Wilson, 335. Huckwell, re, David v. Dalton, 227. Huddersfield v. Jacomb, 42, 83. Huggins V. Guelph Barrel Co., 307. Huggings V. Tweed, 52, 283, 315. Hughes V. Evans, 238. Hughes V. Fields, 522, 523. Hughes V. Hand-in-Hand, 91. Hughes V. Hughes, 236, 699, 700. Hughes V. Jones, 449. Hughes V. London Ass. (Jo., 91. Hughes V. Metiopolitan, 17. Hughes V. Rees, 521. Hull & County Bank, re, 56. Humphreys v Edwards, 493. Humphreys v. Ramsay, 534. Hunnings v. Williamson, 352,358,365. Hunt v. Austen, 180. Hunter v Greensill, 476. Hunter v. Wilcockson, 306, 429. Hunter v. Young, 248, 333. Huntley, rt, v. Brinbrooke, 89. Huntley v. Link, 450. Hutchinson v. Glover, 368, 370, 37!, 373, 374. Hutchinson v. Hartmont, 454, 470, 498. "^Tutchinson v. Sargent, 139, 141. Hutchison v. Colorado United Mining Co., 258. Hutchison v. Sideaways, 78. Hyam v. Terry, 702. Hyde v. Warden, 25, 37, 500, 501. Hyman v. >telm, 21. Hyman v. Roots, 531. Hynes v. Fisher, 165, 243, 504. Hyne v. Murphy, 189. Idington, re, 157. Idington & Mickle, re, 546. Ilderton, re, 546. Imhof V. Sutton 72. Imperial Bank v. Britton, 167. Imperial Bank v. Somerfelt, 216. Imp. Land Co. of Marseilles, &c., re, 415. Imp. Land Co. of Marseilles v. Master* man, 376. Ingersoll, re, v. Ellwood, 89. Ingilby v. Shafto, 369, 373. Ingram v. Little, .357, 364. Innes v. East India Co., 478. InsuU v. Moojen, 72, 74. International Bridge Co. v. Canada Southern Ry. (^o., 66, 719. International Financial Society v. City of Moscow Gas Company, 698. Irving V. Munn, 455. Irwin V. Bick, 142. Irwin V. Lancashire, &c., 187. Isaac V. Diamond, 188. Isaacs ex parte, 537. Israel, re, 142. Ivory V. Cruickshank, 209, 345, 455, 486. Jack, re, 144. Jack V. Kipping, 285. Jackson v. (Oassidy, 479. Jackson v. Gardiner, 492, 509. Jackson v. Harriman, 394. Jackson v. Jackson, 452. Jackson v. Litchfield, 97, 186, 198, 457. Jackson v. Mawby, 470. Jackson v. North Eastern Railway Co., 487, 488. Jacobs V. Brown, 266. Jacobs V. Magnay, 199. Jacques, re, 698. Jacques v. Harrison, 347. Jacquot V. Boura, 168. James v. Attwood, 81. James v. Eaiiaud, 241. James v. Crowe, 403. James v. Giles, 41. James v. Norton, 524. James v. Robertson, 204. Jameson v, Jones, 414. Jameson v. Laing, 21, 164. Jameson v. Marshall, 490. J. B. Palmer's Trade Mark, 701. Jarmain v. (Jhatterton, 51, 52, ^5. Jeff Davis, The, 480. Jefferys v. Smith, 449. Jellett v. Anderson, 155. TABLE OP CASES CITED. XXV Jenkins v. Davies, 344, 436, 437. Jenkins v. Morris, 60, 426, 427. Jenkyn v. Bushby, 369. .Jennings v. Jordan, 235. Jessop V. McLean, 239. J. Fisher, The, 282. Jiminey v. Owen, 197. Job V. Job, 41. John V. Lloyd, 331. Johnasson v. Bonhote, 297, 338, 341. Johns V. James, 380. Johnson, re, 218. Johnson, re, Mun. of Gloucester, 87. Johnson v. Anglin, 94. Johnson v. Altrincham Perm. Benefit Soc, .335. Johnson v. Bennett, 433. Johnson v. Burges, 333. Johnson v. Diamond, 478. Johnson v. Johnson, 216. Johnson v. Laiham, 89. Johnson v, Menzies, 180. Johnson v. Moffat, 180. Johnson v. Moffatt, 493. Johnson v, Oliver, 250. Johnson v. Palmer, 162, 307, 328. Johnson v. Smith, 363. Jonnston v. Coleman, 197. Johnston v Mcintosh, 366. Johnston v. St. Andrew's, 719. Johnstone v. Cox, 52, 524. Johnstone v. Royal Courts of Justice, 33. Joint Stock Discount Co. v. Brown, 235. Jones, re, Eyre v. Cox, 159, 162, 173, 176, 304, 305. Jones V. Bartholomew, 505. Jones V. Baxter, 60. Jones V. Brown, 296, 476, 480. Jones V. Cargill, 179. Jones V. Elderton, 24" '>62. Jones V. Hough, 431, 435. Jones V. Ives, 84. Jones V. James, 545. Jones V. Jones, 79, 371. Jones V. Lloyd, 276. Jones V. Monte Video Gas Co., 375, 376. Jones V. liussell, 94. Jones V. Thompson, 478. Jones V. Turner, 288, 32G. Jones V. Victoria Graving Dock, 56. Jones V. Wedgewood, 79. Jordan v. Ambler. i}8. Joselyne, ex parte, 417, 481. Jourdain v. Palmer. 362. Joy V. Hadley, 381. Joy V. McKinn, 299. Joyce V. Hart, 53. Joyce V. Metropolitan Board of Works, 426. Julia Fisher, The, 535. Jupp V. Cooper, 468. Jupp V. Grayson, 87. Jurmer v. Davis. 437. Kain v. Farrar, 368, .^69. Kaltenbach v. Lewis, 295. Kandick v. Morrison, 54. Kearney v. Harrison, 525. Kearsley v. Philips, 371. Keate v. Phillips, 255. Kcefe v. Ward, 357, 469, 516, 519. Keep V. Hammond, 73, 88. Keightley, v. Birch, 467. Keim v. Yeagley, 512. Keith, re, 40. Keith v. Butcher, 249. Keleber v. McGibbon, 460. Kelly V. Ardell, 340. Kelsey v. Kelsey, ,36. KendaU v. Hamilton, 41, 246, 249, 297. Kendil v. Merrell, 72, 76. Kendil v. Merritt, 86. Kendrick v. Roberts, 271. Kennan v. Murphy, 704. Kennedy v. Brown, 531. Kennedy v. Lyell, 373, 380. Kennedy v. Royal Insurance Co., 364. Kennedy v. Wakefitld, 363. Kennett V. Westminster Improvement Commissioners, 479. Kent V. Freehold, 55. Kerr on Injunctions, 31. Kerr v. Stripp, 699. Kerr v. Styles, 453. Kesteven v. Goodeiham, 87, 88. Kettlewell v. Barstow, 371. Kettlewell v. Watson, 292, 696. Kevan v. Crawford, 23. Kevers v. Michell, 20. Khedive, The, 402, 702. Kiely v. Kiely, 335. Kiely v. Massey, 219. Kileariff v McCraney, 208. Kilkenny Railway Co. v. Fielden, 533. Killaly v. Graham, 437, King v. Davenport, 342, 554. King v. Duncan, 703. King v. Corke, 324, 330. King V. Freeman, 213. King V. Hawkeworth, 126. King V. Lucas, 242. »;^ XXVI ONTARIO JUDICATURE ACT, 1881. King V. Moyer, 592. Latta V. Wallbridge, 88. King V. Sandeman, 348. Lauretta, The, 705. Kingchurch & People's Garden Co., 19. Tjaurie v. Russell, 84. Kingsman v. Kingsman, 240. Kinlock v. Morton, 440 Law V. Garrett, 90. Lawless v. Radford, 160, 536. Kino V. Rudkin, 32, 249, 253, 488. Tiawlor v. Murchison, 370. Kirk V. Todd, 487, 489. Lawrason v. Fitzgerald, 6.30. Kirkpatrick, re, 394. Lawrenson v. Dublin Metropolitan Kirkpatrick v. Howell, 213. Ry. Co., 188. Kitcat V. Sharp, 34. Lawrie v. Lees, 450, 523. Kitchen v. Turubull, 91. Tjaws, re, 697. Kitching v. Hicks, 253. Tjawson v. Hutchinson, 79. Kitching v. Kitching, 272. Lawson v. Trfvidlaw, 239, 242, 243, 699. Klein v. Union Fire Ins. Co., 169, 214, Lazarus v. Mozley, 368. 469. Lazier v. Ranney, 454. KUne V. Kline, 148. Lea and Ont. & Que. R'y Co., re, 83. Knaptonv. Drew, .S50. Leader, The, 480. KnatchbuU v. Fowle, 308, 410. Leathley v. McAndrew, 170, 243. Knight, re, Knight v. Gardner, 421, Lechmere Charlton's Case, 469. 468. Leddell v. McDougall, 180. Knight's Trusts, re, 524. Lee V. Button, 382. Knowlton v. Knowlton, 532. Lee V. Colyer, 285. Kohfreitsch v. Mclntyre, 289. Lee V, Hemingway, re, 524. Lee V. Lingard, 86. Kormann v. Tookey, 543. Krehl v. Burrell, 32, 51, 55. Lee V. McMahon, 284. Kynaston v. Mackinder, 525. Lees V. Fisher, 211. Lees V. Patterson, 286. L, & M., (Solicitors) re, 516. Lees V. Stanley, 540. Labouchere v. Earl of WharncliflFe, 33. Leeson v. Lemon, 61,137. T,add V. Puleston, 494. Leggo V. Young, 72. Lady Langdale v. Briggs, 388. Leicester v. Grazebrook, 88. La Grange v. McAndrew, 41, 98, 342, Leigh, re, 68. 443, 537. Leigh, re, Rowcliflfe v. Leigh, 290,364, Laidlaw v. Ashbaugh, 395. 379, 385. Laird v. Brigcs, 52, 55, 323, 324, 327. Laird v. Stanley, 354. Leigh V. Brooks, 68. Lerculey v. Harrison, 252. Lake v. Pooley, 377. Leroux v. Lanthier, 536, 560. Lalor V. Lalor, 154. Leslie v. Richardson, 81. Lamb v. Dodds, 413. Lett V. St. Lawrence, 405. Lamb v. Munster, 357. Lewin, re, 546. Lambert v. Hutchinson, 248. Lewis V. Barkes, 495. Lambier v. Lambier, 143, 155. Lewis V. Nobbs, 240. Laming v. Gee, 98. Lewis V. Talbot Street Gravel Road, Land Corp. of Canada v. Puleston, 155, 156. 374. Leyman v. Latimer, 334, Land Credit Society, re, 373. Liardet v. Hammond Electric Light, Lane v. Eve, 403. 326. Lane v. Gray, 379. Liddell v. Deacon, 235. Langen v. Tate, 415. Light V. Light, 275. Langley, ex parte. 35, 500, 502. Lind V. Isle of White Ferry Co., 369. Langley v. E. of Oxford, 333. Lindsey Petroleum, &c., v. Pardee, 366. Langridge v. Campbell, 351. Little V. Lines, 73. Langtry, re, 140. Little V. Wight, 5.33. Liverpool & Brazil, &c., Co. v. London Lapp V. Lapp, 449. Large v. Large, 162. & St. Katherine &c. Co., 397 Lascelles v. Butt, 41, 72. Liverpool, &c., Co. v. London Naviga- Latch V. Latch, 142. tion, 68. TABLE OP CASES CITED. XXVU Livingston v. Kalli, 91. Livingstone v. Wood, 449. Lloyd, re, 199. Lloyd, Allan v. Lloyd, in re, 37. Lloyd's Banking Co. v. Ogle, 217, 221. Lloyd V. Dinunark, 233, 488. Lloyd V. Lewis, 64, 86, 570. Lloyd V. WaUace, 472, 476, 477. Lockhart v. Gray, 477. Lockie v. Tennant, 257, 258. Lockwood V. Nash, 483. Lomax, re, 79, 83. Loinax v. Kilpin, 196. London & Canadian, &o., v. Merritt, 98, 451, 452, 453, 472. London, Canadian Loan Co. v. Thompson, 180. London & County Banking Co. v. Lewis, 34. London Discount Alliance Co, v, Kerr, 242. London Guarantee Co. v. Shields, 191, 195. London Scottish Benefit Soc. v. Chor- ley, 592. London Syndicate v. Lord, 438. Long v. Crossley, 249, 250, 251, 324, 325. Long V. Long, 452. Longbourne v. Fisher, 201, 247. Longman v. East, 64, 65, 66, 68, 69, 70, 134. Lord V. Lee, 94. Lord Dorchester v. Petrie, 162, Lord Salisbury v. Nugent, 291. Longhead v. Stubbs, 335. Loundes v. Bettle, 31. Lount v. Canada Farmers' Ins. Co., 462. Lovelace v. Hariington, 356. Lovell V. Holland, 252. Lovell V. Wallis, 420. Lovely v. White, 483. Lovesy v. Smith, 245. Lowe V. Holme, 530. Lows, ex parte, 403. Lowson V. Canada Farmers' Ins. Co., 14, 156,462, 463, 509,522, 709. Lucas V. Fraser, 439, 440, 505, 540. Lucas V. Ross, 166, 218. Luckie, re, 192, 281. Lucus V. Taylor, 393. Lucy V. Wood,, 476. Luke V. South Kensington Hotel Co., 230. Lumb V. Beaumont, 288. Lumsilen v. Davies, 399. Lumsden v. Davis, 699. Lurasden v. Winter, 281, 302, 490. Lundy v. Dickson, 478. Lundy v. McOulla, 279. Lury V. Pearson, 90. Luther v. Ward, 536, Lybbe v. Harte, 32. Lydall v. Martinson, 249, 405. Lydney, &c., v. Bird, 532. Lyell V. Kennedy, 358, 371, 375. Lynskey v. Can. Pacific Ry. Co., 356. Lyon V. Tweddill, 290, 379, 441. Lyon V. Wilson, 440. Lyons, re, 530, 631. Lyons v. Cohen, 336. Lysaght v. Edwards, 389. Lysaght v. McGrath, 464. Mack v. Ward, 477. Maddocks v. Holmes, 207. Madras Irrigation Co., ''94. Mahony v. Nat. Widows' Life Ass. Fund, 374. Mair v. Anderson, 415. Maitland v. Globe Printing Co., 355, 367. Makin v. Barrow, 35. Malcolm v. FuUarton, 350, Malloch V. Johnson, 525. Mallory v. Mallory, 240. Malmesbury & Budd, 34, 81, Managers of Metropolitan Asylum v. Hill, 427. Manby v. Bewicke, 368, 370, 375, 376. Manby & Manby, 177. Manchester, &c., Ry. Co. v. Brook 3, 230, 282. Manchester Economic, B.S., 697, 698. Manchester Val de Travers Paving Co. V. Slagg, 355, 367. Manisly v. Kenealy, 272. Manley v. Anderson, re, 88. Mann v. Perry, 469. Manning v. Moriarty, 219. Mansel, re, Rhodes v. Jenkins, 698. Manufacturers' & Merchants' Ins. Co. v. Atwood, 354. Maple V. Woodgate, 200. Mapleson v. Masini, 282, 535. Margate Pier, &c., Co. v. Perry, 223, 306, 312, Markham, re, 55. Marner v. Bright, 200, 264, 265. Marriott v. Anchor, &c., 372. Marriott v. Marriott, .327, 330 Marsden v. Lancashire k Yorkshire Ry. Co., 525, 526. mm !,;. ii: :M il'^ H''i ^i i lis XXVlll ONTARIO JUDICATURE ACT, 1881. Marris v. Ingrain, 104, 470. ! Marsh, re, 144. Marsh v. Marsh, 144. Marsh v. Beard, 533. Marsh v. Isaacs, 405, 427. Marsh v. Keith, 373. Marsh v. Pontefract, &c., 278, 288, 326. Marshall, ex parte, 220. Marshall, re, 503. Marshall v. Aiglewood, 389. Marshall v. Marshall, 17. Martauo v. Mann, 240. Martin, re. Hunt v. Chambers, 60, 327. Martin v. Bannister, 122, 498. Martin v. Beauchamp, 534. Martin v. Butchard, 374. Martin v. Fife, 68, 72. Martin v. Gale, 438. Martin v. Kennedy, 335. Martin v. Lafferty, lOI, 194, 195. Martin v. Mayor of Belfast, 80. Martin v. Reid, 333. Martin v. Ross, 393. Masbach v. Anderson, 494. Masecar v. Chambers, 93. Mason, 180. Mason, re. Mason v. Cattley, 374. Mason, re. Turner, v. Mason, 255. Mason v. Brentini, 529. Mason v. Harris, 231, 253, 254. Mason v. JeflFrey, 533. Massam v. Thorley's Food Co., 422. Massan v. Grand Junction Ry. Co., 33. Massey v. Allen, 533, 534. Mathers v. Short, 437. Mathews v. Mears, 488. Matthews v. Antrobus, 317. Matthias v. Delcacho, 377. Matthias v. Yetts, 232. Mavor v. Dry, 329. May V. Head, 4:)4. May V. Thompson, 52. Mayor of Birmingham, v. Allen, 66. Mayor of London v. Joint Stock Bank, 481, 482. Mayor of Norwich v. Brown, 271. Measures v. Thomas, 257, 265. Meddowcroft v. Campbell, 238. Mellor re, 143. Mellor V. Sidebottom, 436, 437 Mellor V. Thompson, 363, 470. Meluish v. Milton, 500, 501. Mendes v. Guedalla, 236. Menhinick v. Turner, 326. Menier v. Hooper, 254. Menzies v. Toronto & Ottawa, &c.,366. Mercantile River Plate Co., v. Isaac, 231. Mercer v. Lawrence, 464. Mercer v. Vogt, 393. Mercers Co., ex parte, 524. Mercier v. Williams, 435. Merchants' Bank v. Campbell, 460. Merchants' Bank v. Grant, 449. Merchants' Bank v. Huson, 137. Merchants' Bank v. Pierson, 357, 358, 359, 380. Merchants' Bank v. Tisdale, 370. Mercier v. Pepperell, 82. Meredith v. McCabe, 212. Merrill v. McFarren, 475. Merry v. Nicholls, 702. Mersey Steel, &c., Co.. v. Naylor. 280. Mersey Steamship Co., v. Shuttle- worth, 438. Mertens v. Haigh, .369. Messan v. Lord Massarene, 78. Metcalfe, re. May v. Hicks, 149. Metcalfe v. British Tea Ass., 342. Metcalfe v. Davis, 161, 174. Metropolitan Asylum District v. Hill, 52. Metropolitan B. & S. Soc, v. Rodden, 216. Metropolitan Board of Works v. New River Co., 388, 389, 390. Metropolitan Inner Circle Ry. v. Metropolitan Ry. Co., 394. Metropolitan L. &S. Co. v. Mara, 475. Metropolitan Ry. Co., v. Defries, 289, 334, 337. Meyers v. Kendrick, 472, 473, 476. Meyrick v. James, 421. Michell v. Wilson, 404. Michie v. Reynolds, 459. Micklethwaite v. Fletcher, 470. Midland v. Hemiug, re, 83. Midland Ry. Co., v. Ontario Rolling Mills, 284. Milan Tramways Co., re, ex parte, Theys, 280, 281. Milanese, The, 14. Miles V. Roe, 395. Milissich v. Lloyds, 398, 435. Miller v. Brown, 697, 698. Miller v. HudtUestone, 453, 478, 491. Miller v. Mynn, 478. Miller v. Pilling, 66, 68, 69, 70. Miller's Case, 450. Millington v. Loring, 278, 288, 326. Mills v. Bailey, 79. Mills v. Cottle, 139. Mills v. Griffith, 253. TABLE OF CASES CITED. XXIX Mills V. Jennings, 235. Mills V. Northern Ry., Buenos Ayres Co., 37. Miluerv. Clark & G. T. Ry. Co., 356. Milton, re, 51 . Minet v, Morgan 370, 372, 375. Minton v. Medcalfe, 306. Minton v. Metcalf, 429. Mitchell V. Barrett, 490. Mitchell V. Cameron, West Huron Election, 131. Mitchell V. Condy, 509. Mitchell V, Darby Main Colliery Co., 500, 524. Mitchell V. Darley, 51. Mitchell V. Lea, 477, 483. Mitchell V. Martin, 531. M. Moxham, The, 416. Moffatt V. CorneUus, 81. MoflFatt V. Hyde, 449. Mole V. Smith, 238. MoUey v. Kilby, 253, 363. Molloy V. Lewers, 327. Monaghan v. Dobbin, 413, 469. Monro v. McLeod, 535. Monro v. Rendall, 69. Monteith v. Merchants' Bank, 140. Montgomery v. Dougi«B, 236. Mooney v. Mooney, 393. Moor V. Boyd, .393. Moore v. Alwill, 328. Moore v. Boyd, 354. Moore v . Connecticut Mutual, 56, 434. Moore v. Mulligan, 218, 242. Moorhouse v. Colville, 327. Morant, re, 180. Mordue v. Palmer, 73, 88. Morell V. Morrison, .356. Morgan V. Day, 255. Morgan v. Elford, 462, 702. Morgan v. Metropolitan Ry. Co., 31. Morgan v. Worthington, 297. Morin v. Calcock, 220. Morley, re, Tucker v. Morley, 139. Mornington v. Mornington, 369, 374. Morrice v. Smart, 4110. Morris, re, ex. parte, Streeter, 55. Morris v. Boulton, 459. Morris v. Morris, 89. Morris v. Smith, 200. Morris v. Richards, 552. Aiorrisou v. Cornwall Minerals Ry. Co., 389. Morrison v. Robinson, 14. Morrison v. Taylor 439, 459, 460,547. Morriston Patent Fuel Co., re, 19. Mortimore v. Cragg. 459. Morton V. G. T. Ry. Co., 537. Morton v. Miller, 292, 429, 505. Morton v. Patmer, 21. Morton v. Quick, 21, 495. Mortlock V. Mortlock, 21. Mosely v. Rendell, 273. Mosely v. Simpson, 88. Moss, re, 546. Mostyn v. West Mostyn Co., 17, 18, 282, 372. Motion V. King, 491. Mounsey v Burnham, 329. Mounsey v. Earl of Lonsdale, 326. Mowatt V. Londesborough, 73. Moyle V. Kingston, 82, 83, 85. Mudge V. Adams, 17, 285, Mulcahy v. Perry, 350. Mulkern v. Lord, 90. Mullin V. Bonjor, 176. MuUin V. Pascoe, 699. MuUins V. Howell, 33, 450, 508. Mullows V. Bannister, 181. Municipal Council of Ont. v. Cumber- land, 393. Munsie, re, 444. Munster v. Railton, 198. Murdoch, re, 40. Murdoch v. O'SuUivan, 239. Murphy v. Cotton, 89. Murray v. Canada Central Ry. Co., 404, Murray v Murray v Murray v Gillett, 123, 124, 2.33. Infield, 462. Simpson, 477. Murray v. Walter, 371, 372. - Musgrave v. Stevens, 271. Myers v. Defries, 525, 528. ,M McAllister v. Bishop of Rochester, ! 263, 363, 365. ! McAndrew v. Barker, 54, 697, 698. I McAndrew v. Laflamme, 139, 141. I Macara v. Gwynne, 394. McArthur v. Cami^bell, 83. 1 McArthur v. The Township of South- wold, 709. : Macauley v. Rumball, 479. I Macbeth v. Smart, 279. . McCall, re, 157. I McCall V. Canada Farmers' Mort. Ins. j Co., 37. McCallum v. Prov. Ins. Co., 552. 1 McCargar v. McKinnon, 66, 151. ! McCarthy v. Arbuokle, 82, 236. I McClain v. Maitland, 88. ! McClenaghan v. Grey, 249, 333. I McChve V. Gilleland, 546. 4 '11 ii XXX ONTARIO JUDICATURE ACT, 1881. «'■>:: McCoUum V. McKinnon, 90. McConnell, re, 237. McCormick v. Park, 478. McCorquodale v. Bell, 373. McCrae v. White, 58, 698. McOready v. Heneasy, 169, 536, McCuUoch V. White, 93. McDermid v. McDermid, 356. MoDerraott v. Keeling, 200. McDermott v. McDermott, 486. McBonagh v. Prov. Ins. Co., 393. Macdonald, re, Cameron v. Macdonald, 140. Macdonald v. Bode, 284. Macdonald v. Carington, 273, 280. McDonald v. McMillen, 179. McDonald v. Murray, 702. McDonald v. Worthington, 442, 702. Macdonnell v. McGillies, 154. Macdonnell v. McKay, 365, 509. McDonell v. Prov. Ina. Co., 393. McDonough v. Alison, 292, 399. McDougall V. Gardiner, 254. McDougall V. Lindsay Paper Mill Co. , 443, 444. McDougall V. McDougall, 464. McDowall V. Holliater, 479. McEdward v. McEdward, 72. McEwan v. McLeod, 82. Macfarlan v. Rolt, 372, 375. McFarland v. McFarland, 354. McFarlane v. Murphy, 238, 239, 243. MacFie v. Hunter, 136. McGannon v. Clarke, 537, 549, 600. McGarvey v. Strathroy, 703. McGaw V. McDiarmid, 362. McGill V. Courtice, 143. McGill V. Proudfoot, 90. McGillicuddy v. Griffin, 531. McGillivray v. McOonkey, 328, 329. McGinnia v. Yorkville, 484. McGowan v. Middleton, 282, 317. McHenry v. Lewia, 20, 254. Mcllhargey v. McGinnia, 271 , 272, 323, 325, 329. Mcllroy v. Hawke, 492, 509. Mcintosh V. G. W. Ry. 368. Mclntyre v. The Canada Co., 207. Mclntyre v. Kingsley, 204. McKay v. Mitchell, 477. Mackelcan v. Beckett, 176, 571. McKenzie v. Dwight, 183. McKenzie v. Kittridge, 703. McKenzie v. McDonnell, 488. McKenzie v. Sinton, 533. McKenzie v. Wiggins, 455. McKenzie v. Yielding, 526. Mackereth v. Glasgow & S. W. Ry, Co., 187. McLachlin v. Blackburn, 472. McLaren v. Caldwell, 702, 70.?. McLaren v. Stephens, 703. McLaren v. Sudworth, 477. McLay v. Sharp, 280, 285. McLean r. Bruce, 340. McLean v. Cross, 526. McLean v. G. W. Ry. Co., 355. McLean v. Pinkerton, 551. McLean v. Smith, 348. McLean v. Thompson, 394, 398. McLennan v. Helps, 415. McLeod V. Millar, 530. McMaster v. Beattie, 216. McMaster v. Meakin, 136. McMillan, re, 140, 154, 544. McMillan v. McMillan, 600. McMurray v. Northern Railway, 340. McMurrich v. Hogan, 179. McNab V. Mclnnis, 394. McNaughton v. Webster, 477. MacNee v. Ontario Bank, 183. McNeil V. McGregor, 522. McNulty V. Jobson, re, 83. McPhail, ex parte, 36, 192. McPherson v. McCabe, 239, 240. McQueen v. Turner, 242. Macrae, re, 142. McRae, re, Forster v. Davis, 143, 247. McRae v. McLean, 89. McRoberts v. Hamilton, 459. McStephena v. Carnegie, 193. McTaggart v. Merrill, 180. McTavish v. Simpson, 552. McTiernan v. Fraser, 48. Nadin v. Basset, 356, 415, 417. Nagle-Gillman v. Christopher, 410. Nagle V. Latour, 76, 84. Nalder v. Hawkins, 237. Napier v. Hughes, 702. Nash V. Dickinson, 459. Nash V. Pearse, 477. Nathan v. Batchelor, 335. Nathan v. Giles, 480. National Funds Ass. Co., re, 97. National Ins. Co. v. Egleaon, 702,709. >fational Provincial Bank of England, V. Bradley Bridge &c., Co., 265, National Provincial Bank v. Evans, 347. National Provincial Bank of England, V. Harle, 26. National Provincial Plate Glass Ins. Co., V. Prudential Asa. Co., 32. TABLE OF CASES CITED. XXXI Naylor v. Farrer, 278, 283, 315. Neald v. Corkiiulale, 125, 257, 264. Neale v. Ledger, 93. Neale v. McKenzie, 300. Neate v. Pink, 38. Needhain v. Rivers Protection Com- pany, 19. Neera, The, 549. Neil V. Travellers' Ins. Co , 509. Neil V. Winter, 526. Nelles V. Vandyke, 211. Nelson, ex parte, Hoare, re, 452. Nelson v. Nelson, 452. Nelson v. Pastorino, 185, 262. Nelson v. Roy, 163. Nevieux v. Labadie, 455. New British Investment Co. v. Peed, 368, 371. New Callao, re, 412, 696, 698, 707. New Westminster Brewing Co. v. Hannah, 255, 410. Newbiggin-by-the-Sea Gas Company V. Armstrong, 98, 175, 443. Newby v. Von Oppen, 187. Newby v. Sharpe, 325. Newcomen v. Coulson, 317. Newell V. National Provincial Bank of England, 281. Newington v. Levy, 306. Newman, re, 478. Newman v. Niagara District Mutual Fire Ins. Co., 76. Newman v. Parbury, 81. Newman v. Rook, 482. Newman v. Selfe, 204. Nichol v. Ewin, 477. Nicholas v. Bracachis, 34. NichoU V. Allen, 31. Nicholl V. Elliott, 371. Nichols V. Evens, 351. Nicholson v. Jackson, 285. Nickalls v. Warren, 89. Noad V. Murrow, 295. Noad V. Noad, 307, 392, 393. Nobel's Explosive Co. v. Jones, 249, 255, 324, 325, 330, 333. Noble V. Edwardes, 28. Noel V. Noel, 240. Nolan, re, 516. Nordheimer v. McKillop, 415. Nordon v. Defries, 373. Norris v. Beazley, 252, 265, 321, 554. Norris v. Irish Land Co., 31. Norris v. Meadows, 214. N. British Railway Co. & Trowsdale, re, 83. North London Ry. Co. v. Great Northern Ry. Co., 30, 134. North of Scotland v. Beard, 211, 212. North Wheal Exmouth Mining Co., 356. North York case, re, 131. Northampton, &c., v. Easton, 266. Northampton Coal Iron & Waggon Co. V. Midland Waggon Co., 329. Norton v. Gover, 29, 159. Norton v. Merriman, 284. Norvall v. Canada Southern Ry, Co., 700, 702, 709. Nothard v. Proctor. 38. Nottv. Sands, 465, 471. Nottage v. Aitken, 191. Noyes v. Crawley, 301. Nudel v. Elliott, 140. Nurse v. Durnford, 98, 175. Oakden v. Pike, 28. Oakley v. Toronto G. & B., 355, 366. Gates V. Foresters, 325. O'Brien v. Clement, 300. O'Brien v. Bull, 138, 540. O'Connell v. O'Connell, 308. O'Connor v. Hogan, 292. O'Connor v. McCormack, 88. O'Connor v. O'Hara, 298. O'Donnell v. O'Donuell, 551. O'Donohuev. Maguire, 300. O'Donohoe v. Whitty, 53. O'Donohoe v. Wiley, 191, 192. Oflford v. Oflford, 324. Ogilvy's Arbitration, re, 504. Ogelsby's Arbitration, re, 79. Oliver v. Collings, 92. Oliver v. Dickie, 414. Oliver v. Fryer, 206. Olmstead v. Rutherford, 239. O'Meara v. Stone, 290. Omnium Securities Co. v. Ellis, 292. O'Neil V. Clason, 186. O'Neil V. Travellers' Ins. Co., 707. Ontario Bank v. Mitchell, 472. Oriental Bank v. Fitzgerald, 222. Original Hartlepool Colleries Co. v. Gibb, 282. Original Hartlepool Colleries Co. v. Moon, 372, 373. Orkney v. Shanahan, 181. Ormerod v. Todmorden, 52, 68, 75. Orr V. Diaper, 352. Orr Ewing v. Johnston, 34. Orrell Colliery v. Firebrick Co., re, 342. a- ' * 'I <5-!i X X Xl 1 ONTARIO JUDICATURE ACT, 1881. I Ortner v. Fitzgibbon, 218. Oshawa Cabinet Co. v. Note, 313, 490, 491. O'Toole V. Pott, 84, 86. Ottaway, re, 421. Otto V. LindfufJ, G98. Oulton V. Kadcliffo, 197. Outramv. Outrain, 411. Outram v. WTckhoflF, 142. Overseers of Walsall v. L. & N. W. Ry. Co., 12. Owen V. Delamere, 1.S9. Owen V. Pritchard, 470. Owen V. Wynu, 368, .369, .371. Padgett V. Binn3, 438. Padley v. Camphausen, 104. Padstow, re. Total Loss, &c.. Ass., 698. Padwick v. Scott, 257, 280, 315 Page V. Austin, 704. Paine v. Chapman, 340. Palermo, The, 373, 374. Palmer, J. B., re, 33S. Palmer, re. Skipper v. Skipper, 403. Palmer v. Flower, 388. Palmer v. Gibbs, 322. Palmer v. Gould's Manufacturing Co., 187, 193. Palmer v, Reiffenstein, 350. Palmer v. Walesby, l.'75. Papaire v. Loibl, 349. Papayanni v. Coutpas, 52, 223. Pape V. Lister, 368. Pardee v. Lloyd, 82, 83. Paris Manufacturing Co. v. Walls, 136. Paris Skating Rink Co., re, 30, 31, 498. Park V. Patton, 206. Parker, in re. Cash v. Parker, 37. Parker v. Thorold, 28. Parker v. Wells, 290, 370, 380. Parnell v. Great Western Ry. Co., 405. Parpaite v. Dickinson, 166. Parr v. Lough, 401, 551. Parsons v. Harris, 346, 436, 505. Parsons v. Standard Ins. Co., 704. Parsons v. Tinling, 524, 5'28. Parton, re, Townsend v. Parton, 288, 332. Pascal V. Stone, 220, 221. Pascoe V. Richards, 295, 436. Patch V. Ward, 371. Paterson v. O'Reilly, 25, 477. Patey v. Flint, 212. Patterson v. Wooler, 410. Pattison, Jackson v. Mathews, re, 148. Pattison v. Wooler, 410. Patton V. Hickson, 437. Pavitt V. Metropclitan Tramways Co., 373. Paxton V. Bell, 535, 536. Payne, re, Randle, v. Payne, 240, 53. Payne v. Little, 237, 240. Payne v. Parker, 235. Peace, V, Waller, re, 242. Peace & Waller, re, 546. Peacock v. Harper, 421. Peacock v. Reg., 567, 568. Pearce v. Spickett, 505. Pcarce v. Watts, 334. I'earson v. Campbell, 181. Pearson v. Lane, 261, 263. Pearson v. Ripley, 529. Pease v. Fletcher, 36. Peck & Gait, re, 524. Peck V. Peck, 98. Pe ok V. Trinsmaran Iron Company, 37t I'eokett V. Short, 425, 432, 698. I'eircy v. Young, 81, Pell V. Addison, 72. I'ellas V. Neptune, 134, 279, 284. Pender v. Lushington, 25+. Pendry v, O'Neil, 532, 533. Pcnniman v. Hill, 411. Penrice v. Williams, 3G4, 450. Penny v. Francis, 143. Peoples' Garden Comp.any, re, 19. Percy & Kelly, Nickel, A^c, Co., re, 535. Perkins v. Beresf ord, 6 1 , 306. Perkins v. Dangerfield, 435. Perkins v. Slater, 410, 411, 571. I'erks V. Mylrea, 218, 242, 243. J'errin v. Perrin, 143, 247. Perring, v. Keymer, re, 83. Peruvian Guano Company v. Bockwoldt 20. Peshawur, The, 21. Peter v. Peter. 490. Peterkin v. McFarlane, 65, 323, 327. Petit V. Ambrose, 178. Petre v. Petre, 24. Pettee, re, 139. Pettitt's Estate, re, Chester v. Phillips, 244. Phelps v. White, 293. Pherrill v. Forbes, 215. Pheysey v. Pheysey, 54. Philipps V. Philipps, 371 . Philipps V. Phillips, 298, 326, 362. Philips v. Gill, 82, 86, 158. Philips V. Gill, re, 503. Philips V. Holmer, 369. Philips V. Philips, 231. Phillips V. Austin, 479. TABLE OP CASES CITED. XXXIU Phips V. Harris, 220, 382. Phillips V. Homfray, 489. Phillips V. London & S. W. Ry. Co., 426. Phipper v. McLeocl, 393. Phosphates Sewage Co. v. Hartmont, 421. Phosphate Sewage Co. v. MoUeson, 21 . Phospho Guano Co. v. Fitzgerald, 351. Picard v, Hine, 242. Picasso V. Trustees of Maryport Har- bour, 607. Pickering, re, 368, 375. Pickering v. Ilfracombo Railway Co., 479. Pickup V. Thames Ins. Co., 426. Piercy v. Young, 90, 397. Pigeon V. Bruce, 178. Piggott V. Anglo- American Telagraph Co.. 499. Pigot V. Stewart, 235. Pike V. Fitzgibbon, 218, 242. Pike V. Keene, 226, 245, 380. Pilcher, re, Pilcher v. Hinds, 271. Pilcher v. Hinds, 555, 559. Pilkington v. Baker, 502. Piller V. Roberts, 257, 263, 264, 267. Pindar V. Smith, 371. Piper V. Piper, 456, 470. Planet Buildiug Society v. Part, 330. Plating Co. v. Farquharson, 456. Piatt V. Attrill, 605, 708. Pleasants v. East Dereham, &c., 163, 262. Plews V. Baker, 91 . Plews V. Middleton, 80. Plimpton V. Spiller, 33. Plum V. Normantou Iron, &c., Co., 307, 392. Polini V. Grey, 35. Pommerania, The, 181, 317. Pompe V. Fuchs, 90. Ponsford v. Swain, 374. Ponsonby v. Hartley, 371, 375. Pontifex v. Foord, 257. Ponton V. Bullen, 475. Poole V. Poole, 507. Pooley V. Driver, 389, 398. Pope V. Lord Duncannon, 81. Porter v. Lopes, 36. Post V. Leys, 216. Potter, re, v. Knapp, 87. Potter V. Chambers, 315. Potter V. Cotton, 534. Potter V. Home & Colonial Ins. Co., 349. Potter V. Newman, 83. Potters V. Miller, 192, 281. Potts V. Deane, 312. Powell V. Jewsbury, 19, 333, 335, 336. Powell V. Lea, 437. Powell V. Peck, 698, 701. Powell V. Powell, 36. Powley V. Whitehead, 505. Poyser v. Minors, 442. Pratt V. Brown, 226. Pratt V. Pratt, 369, 372. Preston v. Lamont, 182, 191, 197, 297, 326. Prestney v. Colchester, 365, 378. Price, re, 471. Price V. Bailey, 415. Price V. Thomas, 178. Prime, re, 143. Prince v. Gaguon, 719. Prince v. Lough, ?40. Princess of Wales v. Earl of Liver- pool, 364. Pringle, re, 245. Pringle V. Gloag, 540, 547. Prioleau v. U. S. America, 364. Privett V. Hay, 295. Proctor V. Grant, 437. Proctor V. Weller, 485. Prosser v. Mossop, 139. Protector Endowment Co. v. Whit- lam, 473. Proudfoot V. Trotter, 87. Provincial Insurance Co. v, Gooder- ham, 533. Prov. P. Bdg. S. V. Greenhill, .341, 571. Pruyn v. Soby, 239. Pryer v. Gribble, 20. Pryor v. City Offices Co., 122, 123, 126, 435. Pryse v. Pryse, 388. Pugh v. Heath, 16. PuUen V. Snelus, 297. Pultney v. Shelton, 469. PurneU v. G. W. Ry. Co., 425, 427. Pyman v. Burt, 461. Pjme V. Kinna, 479. Quartz Hill, &c., Co., re, 422, Quartz Hill, &c., Co., re, ex. p. Young, 412. Quartz HiU Gold Mining Co. v. IBeall, 34. Queen v. Smith, 516. Queen's Ins. Co., The, v. Boyd, 216. Quilter v. Heatley, 376. Quilter v. Mapleson, 13. Quin v. Hession, 280. XXXIV ONTARIO JUDICATURE ACT, 1881. Radclifl'e, jy, European Soc. v. Rad- cliffe, 41. Radclyffe, n, Pearson v. RadclyflFe, 625 Radenhurst v. Reynolds, 449. Rae V. Langford, 223. Rae V. Trim, 581. Rafael v. Onglev, 181. Ralph V. Carrick, 705. Ramsay v. Midland Railway Co., 355. Rand v. Rolph, 523. Randegger v. Holmes, 90. Randell v. Thompson, 81, 91. Randolph, re, 14. Rann v. Lawless, 240. Ranson v. Patten, 491. Raabotham v. Shropshire, &c., 368. Rawley, v. Rawley, 281, 285. Rawsthorn v. Arnold, 84. Ray V. Barker, 221, 222. Ray V. Durand, 93. Ray V. Sherwood, 496. Raymond v. Tapson, 412, 414. R. C. Bank v. Lockman, 475. Read v. Prest, 235. Real & Personal Advance Co. v. McCarthy, 318. Reaume v. Leavitt, 533. Redgrave v. Hiird, 14, 28, 294. Redman v. Brownscombe, 239. Redmayne v. Vaughan, .392, 398. Redoniio v. Chaytor, 532, 533. Rees, re, Rees v. George, 244. Reg. V. Amer, 44. Benson, 480. Church Wardens of All Saints, I Reg. V Reg. V, 31 Reg. V Reg. V Reg. V Reg. V Clark, 38. Hemsworth, 86. Keyn, 193. O'Rourke, ?88 Reg. V. Shropshire Justices, 551. Reid V. Langlois, .371, 374. Republic of Bolivia v. Bolivian Navi- gation Co., 388, 134. Republic of Costa Rica v. Erlanger, 368, 532, 533, 535. Republic of Costa Rica v. Strousberg, 472. Republic of Liberia v. Imperial Bank, 366. Republic of Liberia v. Roye, 364, 380. Restell V. Stewart, 290, 311, 326. Rew V. Anthony, 98, 183, 184. Rex V. Delaval, 38. Reynolds v. Askew, 83, 84. Reynolds v. Coppin, 141. Reynolds v. Godlee, 373. V. V. V. V. V. Reynell v. Sprye, 374. Rica (toM Washing Co., re, 29 4. Riccard v. Kingdon, 84. Ricev. Alliance, &c., Uas Co., 256, 262. Richards v. Cullerne, 122. Richards v. Howell, 21. Richards v. Kitchen, 469. Richards v. Morgan, 374. Richardson v. Bcaupre, 203. Richardson v. Ehnit, 479. Richardson v. Greaves, 482. Richardson v. Hastings, 373. Richardson, re, Richardson v. 'Richard- son, 247. Rickards v. Hough, 416. Rihel v. Livingstone, 344. Riley's Trmts, re, 450. Ringlanu v. Lowndes, 93. Rio Grande, &c., S. S. Co., re, 525. Robarts v. Bu^e, 540. City of Toronto, 478. Death, 483. Evans, 238, 248, 249. Guest, 222. Oppenheim, 370, 375,|377. V. Cooley, 299. V. Coulter, 159, 160. V. Coulton, 556. V. Daganeau, 393. V. Grant, 540. V. Howard, 310. V. Mero, 179. V. McMaster, 534, Bradshaw, 509. V. Budgett, 376. V. Chadwick, 318, 403, 497. Robinson v. Drakes, 706. Robinson v. Hadley, .38. Robinson v. Nesbitt, 479. Robinson v. Pickering, 30, 242. Robinson v. Ralston, 218. Robinson v. Robinson, 82, 408, 503. Robson v. Argue, 437, 488. Robson V. Dobbs, 21. Roche V. Jordan, 340. Roche V. Patrick, 393. Rock Portland Cement Co. v, Wilson, 32. Rodgers v. Rodgers, 142. Rodman v. Rodman, 289, Rody V. Rody, 154, 157. Roe V. Davies, 324, 421. Roe V. Hammond, 459. Roffey V. Miller, 490. Roger V. Crookshank, 364. Rogers v. Horn, 254, 450, 508, Rogers v. Hunt, 207. Roberts Roberts Rol)erts Roberts Roberts Robei'tson Robertson Roucrtson Robertson Robertson Robertson Robertson Robertson Robinson v Robinson Hobinson TABLE OF CASES CITED. XXXV Roj^ers v. Manning, 416. Rolfe V. McLaren, 315, 326. Romann v, Brodrecht, 280, 281. Rooney v. Rooney, 425. Rooney v, Whiteley, 408, Rory, The, 290. Rose V. Garden Lodge, &c., Co., 19. Rose V. Hickey, 697- Rosebatch v. Parry, 141, 151, Rosenberger v. Grand Trunk Ry. Co., 435. Rosenbercv. Lindo, 40. Rosenatadt v. Rosenstadt, 289. Rosier, re, 505. Ross, re, 148, 365. Ross V, Clifton, 300. Ross V. Corp. of Bruce, 87, 89. Ross V. Gibbs, 167, 374. Ross V. Dublin United Tramways Co., 376. Ross V. Jacques, 533. Ross V. McLay, 540. Ross V. Ross. 79. Rotheram v. Priest, 220, 315. Roupell V. Parsons, 429. Rowley v. Lafifan, 299, 326. Rowsell V. Morris, 142. Royal Canadian Bank v. Stevenson, 568. Royal Mail Steam Packet Co., v. Braham, 188. Royle, ?*e, 165. Royle V. Busby, 460. Rudow V. Great Britain Assurance Co., 624. Rumbold v. Forteath, 368, 371 . Rumohr v. Marx, 142, 332, 335, 432, 551. Rumsey v. Read, 438. Runnacles v. Mesquita, 220, 221, 222. Runtz V. Sheffield, 508. Rushbrook & Starr, re, 95. Russell Case, 131. Russell V. Canada Life Ass. Co., 324. Russell V. Davies, 498. Russell V. East Anglian Ry. Co., 476. Russell V. G. W. R. Co., 416. Russell V. Russell, 90. Rustonv.Tobin, 249, 255, 327. Ruthven v. Rossin. 93. Ruthven v. Ruthven, 93. Rutter V. Chapman, 382, 383. Rutter V. Tregent, 302. Ryan v. Fish, 160, 348, 517. Ry lands v. Reardon, 481. Rymal v. McEachern, 398, 400, 402. Sacker v. Ragozine & Co., 68. iSaekville v. Pacey, 281. j Sadlier v. Smith, 278, .326. I Saffron Waldron Benetit Co., v. Ray- nor, 55. ' Salamon v. Donovan, 478, 481. Salkeld v. Slater, 81 . : Salt V. Cooper, 22, 454. ': Samis v. Ireland, 453. Sampson v. Me Arthur, 55. Sampson v, O'Donnell, 308. Sampson v. Seaton & Beer Ry. Co., 480, 481. Sanders v. Peck, 257. Sanders v. Sanders, 13. Sandys v. Florence, 295. Sandys v. Louis, 285. Saner v. Bilton, 529. Sankey v. Alexander, 374. Sanson v. Sanson, 478. Sargent v. Read, 37, 38, 501. Sato, re, v. Hubbard, 478, 481, 482. Saunders v. Furnival, 699. Saunders v. Jones, 289, 290. Saunders v. Stull, 334. Savage, re, 449. Savage v. Tyers, 388. Sawyer v. Sawyer, 257, 265. Sawyer v. Short, 570. Saxley v. Easterbrook, 29, 33, 368. Saxby v. Gloucester Waggon Co., 68, 69. Say lor v. Cooper, 16, 252. Scane v. Duckett, 248, 249, 327, 332. Sceptr-? V. Co., re, 501, 697. Sceptre Licensed Victuallers Fire Ins. Co., ex parte. How, 697. Schjott V. Schjott, 240. Schneider v. Agnew, 475. Schneider v. Batt, 257, 264, 267. Schneider v. Proctor, 321, 394. Schomberg v. Zoebelli, 167, 289, 310. Schroeder v. Cleugh, 461. Schroeder v. The Central Bank, 26. Scott, re, 40, 531. Scott v. Avery, 90. Scott V. Burnham, 530. Scott V. Creighton, 307, 333. Scott V. Sampson, 288. Scott V. The Royal Wax Candle Co., 188, 191, 196. Scott v. Van Sandan, 81. Scutt V. Freeman, 429. Seager v. Barber, 413. Seagram v . Knight, 24. Searle v. Choate, 19. I XXX VI ONTARIO JUDICATURE ACT, 1881. I' 1' II (! W 'I ( A ; %^ Searle v. Matthews, 137. Suars V. Lawson, 488. Seath V. Mcllroy, 531. Seaton v. Fenwick, 207. Seaton v. Grant, 21. Secretary for War v. Chubb, 501. Seear v. Lawson, 98, 251, 252, 488, 491, 533. Soear v Webb, 505. Selby V . Crutchley, 535. . Seli^inan v. Mansfield, 265. Seligmann v. Young, 290. Selley v. Pearson, 33. Senn v. Hewitt, 356. Sephton v. Quillara, 247. Seton, 81, 500. Severance v. Civil Service Supply, 241. Seymour v. Corp. of Brecon, 482. Seymour v, Longworth, 363. Shanley v. Moore, 477, 479. Shapcott v. Chappell, 426. Shardlow v, Ootterill, 297. Sharp V. Lethbridge, 495. Sharp V. Sharp, 275. Sharpe v. Lambe, 383. Shaw, re, 39. Shaw V. E. of Jersey, 29, 34. Shearman v. Findlay, 191. Sheehan v. G. E. Ry. Co., 230, 243, 248, 254, 333. Sheffield Waterworks v. Yeomans, 333. Shelf ord v. Louth &E. C. Railway Co., 216. Shelley v. Goring, 239. Shelly V. Huasey, 354. Shephard v. Beane, 259, 280. Shepherd v. Hayball, 282, 535, Sheppard v. Kennedy 164. Sheridan v. Nagle, 87. Sherland v. Freeland, 235. Sheward v. Lord Lonsdale, 290. Shillito V. Childs & Co., 179. ShilUto V. CoUet, 39. Shipman, re, 144. .Shippey v. Grey, 480. Showell V. Bowron, 438. .Shubrook v. Tufnell, 12, 54. Shup V. Shupe, 433, 697, 698. iSiddons v. Lawrence, 525. Sievewright v. Leys, 156, 522, 5,»>3. Silber Light Co. v. Silber, 254. Silver v. Stein, 235. Simmons v. Storer, 544, 547, 648. Simon v. La Banque Nationale, 534. Simpson v, Denny, 235, Simpson v. Grant, 334. Simpson v. Home, 139. Siner v. Williams Manufactories Co., 416. Sivewright v. Sivewright, 02, 354. Skelly V. SkeUy, 530. Skinner v. Palmer, 340. Skinner v. White, 276, 270. Slack V. Midland, 64. Slater v. Slater, 139. Sloman \. Governor of New Zealand, 179, 18.'J. Small V. Eccles, 370. Small V. L^on, 351. Small V. Union Permanent B. S., 20. Smart v. Miller, 477, 478. Smith, ex p. 469. Smith, re, 40, 193, 546. Smith, re, Bridson v. Smith, 347. Smith V. Reeves, re, 79. Smith V. Armitage, 66, 140. Smith V. Babcook, 366, 416. Smith V. Barnes, 371. Smith V. Bird, 383. omith V. British Marine, ftc. Co., 90. Smith V. BuUer, 549. Smith V, Cowell, 22, 29, 464. Smith V. Daniell, 372. Smith V. Day, 35, 501. Smith T. Dobbin, 171, 200, 206. Smith V. Gibson, 388. Smith V. Gunn, 492. Smith V. Harris, 377. Smith V. Haseltine, 230, 231, 250. Smith V. Horsfftl!, 233. Smith V. Lawler, 124, Smith V. Lucas, 242. Smith V. Parkside Mining Co.. 42, 83. Smith V. Richardson, 269, 270. Smith V. Smacksmen Ins. Co., 505. Smith V. Smith, 33. Smith V. Tett, 271. Smith V. West, 289. Smith V. Whichcord, 495, 496. Smith V. Wilson, 167. Smith's Estate, re, Bridson v. Smith, 436. Smyth V. Levinge, 295. Snow V. Bolton, 453. Snow V. Cole, 161. Soci^te Anonyme, ftc. v. Tilghman, 32. Societies of Apothcjaries v. Notting- ham, 369. Solicitor, re, a, 469, 470, 504, 546, 571. Solicitors, re, 546. Solomon v. Bitton, 427. Somerville v. Joyce, 179. Somes v. Martin, 538. Soules V. Morton, 92. TABLE OF CASKS CITED. XXXVU South of Frauce Pottery Works Syndi- cate, re, 19. Southwark, &c. /. Quick, 368, 369, 373, 374. Southwell V. Scotter, 27. Sovereign v. Sovereign, 66, 140. Sowden v. Sowden, 307. Sparkea v. Younge, 477. Sparrow v. Hill, 528, 547. Spartali v. Van Hoorn, 91 . Spears v. Waddell, 414. Spencer v. Barough, 383. Spencer v. Hart, 341 . Spencer & McDonaM, re, 239. Spiller V. Paris Skating Rink Co., 415. Springer v. Clarke, 143, 526. Sproat V. Peckett, 189. Sprunt V. Pugh, 462. Spurr V. Hall, 311, 349. St. John V. Rykert, 460, 709. St. Nazaire Co., re, 324, 429, 450. Ft. Olaf, The, 317, Stace V. Gage, 235. Stacpoole v. Walsh, 485, Stafford v. Coxon, 68. Stahlschmidt v. Walford, 317. Standard Bank v. Boulton, 242. Standard Bank v. MoQuaig, 354, 472. Standard Bank v. Wells, 217, 522. Standard District Co. v. La Grange, 54. Stanford v. Hurtatone, 31. Stanger Leathes v. Stanger Leathes, 454. Stanhope, re, 480. Stanley v. Stanley, 479. Stan ward v. Vestry of St. Giles, 25 Staples v. Young, 279, 315, 528. Star Kidney Pad Co. v. Greenwood, 370. Steel v. Cobb, 204. Steel V. Dixon, 257, 260, 261, 266. Steele, re, 469. Steele v. Ste\Cart, 372. Steer v. Steer, 142. Steuart v. Gladstone, 415. Steven v. Hunter, 154. Stevens v. Phelips, 478, 480, Stevenson v. Williams, 163. Stewart v. Beattie, 88. Stewart v. Fletcher, 153. Stewart v. Hunter, 144. Stewart v. Johnstone, 393. Stewart v, Richardson, 35. Stewart; v. Rounds, 435. Stigand v. Stigand, 190. Stilson v. Kennedy, 19<;. Stimson v. Stimson, 181. Stirling v. Dubarry, 509, 523. Stock V. De Smith, 86. Stokes V. Grant, 288, 326. Stone v. Knapp, 243. Stooke V, Taylor, 279, 281, 528, 529, 530. Storer v. Simmons, 411, 482. Storey v. Waddle, 493. Stovel V, Coles, 240, 369, Straight, ex parte, 449. Strange v. Freeman, 200. Strange v. Toronto Tel. Co., 136. Street v. Gover, 281, 314. Strelley v. Pearson, 33, 500, Strickland v. Strickland, 329. Strickland v. Symons, 139. Strousberg V. Costa Rica, 188, 191. Strutt V. Rogers, 71, 73. Stubba, re, 494. Stubbs V. Boyle, 408. Sturgeon v. Hooker, 504. Sturla V. Freccia, 35, 532. Sugg V. Silber, 60. Sullivan V. Harty, 140, 153. Sullivan v. Rivington, 70. Sullivan v. Sullivan, 143. Summers v. Morphew, 476, Summers v. Summers, 195. Sutcliffe, re, 362. Sutcliffe v. James, 299. Sutherland v. Leys, 160. Sutherland v. McDonald, 532. Sutton, re, 538. Sutton v. Huggins, 342. Sutton's Trust, re, 26, 27. Swan V, Adams, 488, 533. Swann v, Swann, 171, 240. I Swansea, .tc. v. Duncan, 191, 258, 260, i 262, 26?,, 264. I Sweetnam v Lemon, 481. Swetnam v. Swetnam, 144. Swift V. Nunn, 426. Swinburne v. Carter, 533. Swindell v. Birmingham Syndicate, 52 54. Swire, re, Mellor v, Swire, 247. Swyft V. Swyft, 39. Syers v. Fickersgill, 495. Sykes v. Brockville & Ottawa Ry. Co., 483. I Sykes v. Canada Pacific Ry. , 532. Symington v. Symington, 14. Symonds v. Jenkins, 438. Symons, re, 140. Sympson v. Prothero, 480. Synod v. De Blaquiere, 404. #'^ XXX VIH ONTARIO JX'DICATTTRE ACT, 18S1. i ^. Talbot V, Hope Scott, 36. Talbot V, Marahfield, 373, 374, Tanner v. Sewery, 76. Tapp V. Jones, 477, 4S0, 481. Tasmanian Ry. Co. v. Clark, 397, 398. Tate V. Corp. of Toronto, 478, 481. Tattersall v. National Steamship Co., 390, 398. Taylor, re, 39. Taylor, ?-e, Tomlin v. Underhay, 388. Taylor v. Batten, 372, 374. 375. Taylor v. Bostwick, 83. Taylor v. Bradford, 495. Ta>ior V. Campbell, Postm. Gen. 388. Taylor v. Collier & Co., 198. Taylor v. Eckersley, 3(i, 37, 38, 501. Taylor v. Jones, 509, 522, 551, 552. Taylor V. Lady Gordon, 71. Taylor v. Oliver, 375. Taylor v. Pede, 203. Taylor v. Slierley, 462. Taylor v. Taylor, 14, 237, 240. Taylor's Case, re, Am))ro3e Lake Tin I & Copper Co., 697. Teale v. Teale, 155. Tebbs V. Lewis, 266. Tellettv. Lalor, 5.32. Tenant v. Ellis, 524. Terrell, re, 52. Tetley v. Easton, 357- Tharp, re, 23. Theodore Korner, The, 373. Thirkell, re, 79. Thirlfallv. Wilson, 241. Thomas v. Cotton, 459. Thomas v. Palin, 98, 380, 1««. Thomas v. Peirce, 178. Thomas v. Rawlings, 373. Thomas v. Sec. of State for India, 372. Thomas v. The Queen, 282. Thomas v. Williams, 29. Thompsett v. Bowyer, 72. Thompson v. Birklev, 291. Thompson v. Marshall, 217, 221. Thompson v. Tonikiuson, 201. Thomson v. Anderson, 81. Thomson v. Pheney, 178. Thomson v, S. Eastern Ry. Co. 21,495 Thomson v. Victoria Mutual Co., 243. Thorburn v. Brown, 354. Thorley's Cattle Food Company v. Massam, 29, 33. Thorn v. Smitli, 184. ., Thome v. Seel, 220, 221. Thornloe v. Skoines, 501. Thorpe v. Holdsworth, 302, 436, 438. Thorton v. Capstock, 288, 290. Thorton v. Church, 302. Thurgood, re, 5-i''i. Thurlow V. Beck, 60, 61. Tiflfany v. BuUen, 478. Tiffany v. Tiffany, 144. Tilbury v. Brown, 481. Tildesley v. Harper, 231, 302, 324,4.36. Tillet V. Nixon, 30, 36. Tilley v. Thomas, 28. Tilney v. Stansfield, 469, 470. Tirains or Timms, re, 494. Tobin, re, 235. Tobin, re, Tobin v. Tobin, 516. Toke V. Andrews, 282, 303, 304. Tollit V. Saunders, 92. Tomline v. The Queen, 363. Tomlinson v. Bollard, 3.39. Topping V. Joseph, 55. Toronto Brewing & Malting Co., v. Blake, 33. Toronto Gravel Road v. Taylor, 374. Toronto Savings Bank Co., v. Canada Life Ass. Co., 235. Torrance v. Livingstone, 281. Torrance v. Torrance, 544, 594, 604. Totten, re, 592. Tottenham v. Barry, 179, 190, 193. To well V. Slate Co., 271. Towes V. Loveridge, 260. Towle V. Topham, 297. Townend v. Hunter, 412. Townsend v. Townsend, 247. Township of York v. Willson, 76, 82. Tozer v. Walford, ,34, 501. Traill v. Porter, 162, 173, 190. Travis v Bell, 364. Trele-en v. Bray, 17, 257, 262, 280. Trench, re, ex. parte Brandon, 533. Trench v. Mulcahy, 219, 223. Trevelyan v. Charter, 449. Trevena v. Watts, 284. Trinacria v. Richardson, 284. Trippet v. Eyre, 92. Trowell v. Shenton, 54. ' Trude v, Phojnix Ins, Co,, 429, 431. Truman v. Redgrave, 36, Trumpour v. Say lor, 14. Truslove t. Whitechurch, 168, Trust & Loan Co. of Canada v. Boul- ton, 207, Trust & Loan v. Halloran, 272. Trust & Loan Co. v. Hill, 437, 438. Trust & Loan Co. v. McCarthy, 211. 213. Trust & Loan v. Osborne, 272. Trust & Loan v. Start, 455. Tully v. Chamberlain, 81. TABLE OF CASES CITED. XXXIX Tapper, ex jmrte, 55. TurnbuU v. Jansou, 549. Turnbull v. Robertson, 481. Turner, ex parte, 476, 477. Turner v. Bridgets 51. Turner v. Burkenshaw, 373. Turner v. Hancock, 524, 525. Turner v. Hednesfortl Gas Co., 280. Turner v. Hey land, 525. Turner v. Hodgson, 440. Turner v. Jones, 480, 481, 484. Turner v. Kyte, 1G8, 306, 413. Turner v. Neill, 216. Turnery. O'Connor, 158. Turner v. Samsoui, 339. Turney v. Bayley, 380. Turquand v. Fearon, 230, 231, 253, 254, 295, 566. Turquand v. Wilson, 384, 438, 571. Twinbarrow v. Braid, 250. Twycroft v. Grant, 380. Twycrosa v. \jrrant, 487, 489. Tyerman v. Smith, 93. Tyler v. Bell, 341. Tyne Alkali Co., v. Lawsou, 5C5. Tynn v. Billingsley, 383. Tyson V. Mayor of London, 31. Union Bank of London v. Lyman, 288. Union bank of London v. Manby, 363. Tnited Eng. & Scot. Ins. Co., re, 478. United Telephone Co. v. Dale, 35. Upham V. Forester, 526. U. S. America v. Wagner, 364. Usil V. Whelpton, 60. Val de Travers Asphalts Pa\nng Co. V. London Tramway Co., 231. Valance v. Birmingham & Midland, &c., 250, 255. Vale V. Oppert, 21, 372. Van Natter v. Buffalo & Lake Huron Ry. Co., 299. Van Winkle v. Chaplin, 240. Vandusen v. Johnson, 322. Vandusen v. Malcolm, 337. Vane v. Vane, 333. Vardon v. Vardon, 239, 240. Vars V. Gould, 533. Vaughan v. Barnes, 350. Vaughan v. Halliday, 55. Vavasseur v. Krupp, 3:^, 253, 282, 317. Velati k Co., v. Braham & Co., 34, 500. Vermilyea - (iuthrie, 60, 62. Verminck v. Edwards, 379. Vetter v. Cowan, 159, 160. Vicary v. Great Northern Ry. Co., 524, 526. Victoria Mutual Ins. Co. v. Bethune, 484. Vigar V. Dudman, 389. Viney, ex p., 557. Viscount Barrington v. Liddell, 383. i Vivar, The, 193. j Vivian v. Little, 372. I Vivian v. Westbrooke, 139. I Vyse V. Foster, 372. W j.g 39, Waddell V. Blockley, 435. Wade, re, 141. Wade V. Simeon, 91. Wadeer v. E. Indian Co., 369. Wadsworth v. Bell, 460. Wadsworth v. Smith, 79, Wagner v. Jefferson, 243. Wagner v. Mason, 365, 371. Wagstaff V. Jacobowitz, 2 J 9, 223. Wagstaffe v. .\nderson, 376. Wahlberg v. Young, 332. Waite v. Biugley, 154. Wake V. Parker, 2.38. Wakelee v. Davis, .301. Waldron v. Mc Walter, 532, 533. Walford v. Walfor.l, 701. Walker V. Balfoui, 259. Walker v. Banagher Distillery Co., 19» Walker v. Blackmore, 488. Walker v. Hrown, re, 72. Walker v. Budden, 55. Walker v. Bunkell, GG, 67, 69, Walker v. Fairfield, 459. Walker v. Hicks, 166. Walker v. Xiles, 136, 5.35. Walker v. Poole, 375. Walker v. Rooke, 480. Walker v Terry, 398. Walker v. The Beaver & Toronto Mut. Fire Ins. Co., 76. Wallace v. Cowan, 159, 160, 399. Wallace v. Graham, 380. Wallace v. Hutchinson, 242. Wallace v. Whaley, 86. Wallingford v. Mutual Soc, 52, 217, 220, 221, 222, 289, 294, 508. Wallis V, Hirsch, 9(». Wallis V. Jackson, 437. Wallis V. Smith, 490. Wallis V. Wallis, 139. Walsh V. Lonsdale, 41. Wallbridge v. Martin, 488. Walton V. Thompson, 196. Walton V. Wideman, 307, 393. 3 I xl ONTARIO JUDICATURE ACT, 1881. II Wansley v, SmallwooU, 48. Warburg, re, ex p. Whalley, 180. Warburton v. Haslingden, 88. Ward V, Hall, 66, 68. Ward V. Lowndes, 31. Ward V. McAlpine, 88. Ward V. Pilley, 68, 72. Ward V. Vance, 479, 481. Ward V. Vance, 479, 481. Warder v. Saunders, 487. Wardrope v, Canadian Pacific Ry. Co., 480. Waring v. Lacey, 422. Waring v. Peannan, 281, 528, 529, Wark V. Moulton, 453, 504, 516. Warne v. Deli, 493. Warner v. Mosses, 278, 410, 413, 414, 420, 544. W\arner v. Twining, 257, 280. Wartnaby v. Wartnaby, 275. Waterloo Mutual, &c. v. Robinson, 302. Waterous v. Farran, 516. Waters v. Earl of Shaftesbury, 369, 37(h Waters v. Shade, 404. Watson V. Beavan, 94. Watson V. Bennett, 79, 85, 94. Watson V. Brewer, 202. Watson V. Cave, 55, 244, 253, 696. Watson V. Ham, 356, 487. Watson V. Hawkins, 287, 289, 293. 294, 332, 335, 337. Watson V. McDonald, 417. Watson V. Rodwell, 52, 288, 327, 383. Watt V. Barnett, 179, 181, 206. Watts, re. Smith v. Watts, 268. Watts V, Hobson, 516. Waugh, re, 238. Webb V. Commissioners of Heme Bay, 31. Webb V. East, ,357, 369, 370. Webb V. McArthur, 540. Webb V. Stenton, 453, 470, 477. Webb V.Webb, 199. Webber v. Wedgewood, 325. Webster, tx p., re, Morris, 540. Webster v. British Empire Co., 235. Webster v. Coal Consumers' Co., 404. Webster v. Leys, 156, 239, 551. Webster v. Taylor, 485. Webster v. Webster, 477. Webster v. Whewall, 362, 370, 371, 376. Weeks v. Stourton, 371. Weir V. Barnett, 327. Weir V. Johnson, 90. Weldon v. Templeton, 394. Wellesley v. Beaufort, 38. Wells V. Gzowski, 75, 88. Welply V. Buhl, 342, 555. Welsh Steam &c., Co. v. Gaskell, 375. Wenlock v. River Dee Co., 408. Werderman v. Soci^t6 Generale, &c., 248 333. Wesson'v. Stalker, 163, 206, 218. West v. Downman, 494. West V. Riley, 37. West London Dairy Soc. v. Abbott, 384. West of England Banking Company v. Batchelor, 26. West of England Bank v. Canton Co. , 368. Western Advertising Co. v. Rainer, re, 525. Western Canada Loan & Savings Co. V. Court, 136. Western C. L. & S. S. v. Dunn, 212. Western of Canada Oil Co., re, 354. Western of Canada Oil Co. v. Walker, 370. Westhead v. Riley, 453. Westinghouse v. Midland, &c., 373. Westley v. Jones, 178. Westloh V. Brown, 164, Westman v. Aktiebolaget, &c., Snicka- refabrik, 161, 188, 190. Wetherhead v. Wetherhead, 183, Wheeler, v. Murphy, re, 83. Wheeler v. LeMarchant, 373. Whetstone v. Dewis, 271. Whistler v, Hancock, 342, .554, 555. White v. Boby, 32. White V. Bromige, 340, 537. White V. Cummins, 143. White V. Kirby, 90. White V. Land and Water &c. Co., 187. White V. MacGregor, 191. White Sewing Machine Co, v. Belfry, 531, White V. ^Valls, 362. White V. Watts, 354. White V. White, 164. White V. Witt, 54, Whitehead v. Harte, 356, Whitehead v. Worth, 449, Whitehead v. Tait, 527, 528. Whitely v. McMahon, 88. Whitley v. Honeywell, 181. Whittaker v. Whittaker, 453, 476. Whyte V. Ahrens, 370. I Wiarton Belle, The, 393. ! Wicks V. Wood, 524. TABLE OF CASES CITED. xli Widnea Alkali Co. v. Sheffield & Mid land Ry. Co. Committee, 31. Wigan Junction Ry. Co., re, 565. Wiggle V. Harris, 308, 311, 522. Wilby V. Standard, &c., 697, 698. Wilder v. Hopkins, 532. Wiley V. Ledyard, 443. Wilka V. Judge, 54. Wilkes V. Parker, 336. Wilkina v. Bedford, 404, 554. Wilkins v. Peatman, 136, 137. Wilkinson v. Hull, 52. Willcock V. Terrell, 452, 453, 478. Willeaford v. Watson, 90. WiUiams v. Andrews, 249, 254. Williams v. Brisco, 347, 348. Williams v. Bryant, 196. Williams v. Oardwell, 346. Williams v. Clough, 557. Williams v. Corbey, 192, 417. Williams v. Gardwell, 292. Williams v. Johns, 469. Williams v. McPheraon, 84, 86. Williams v. Meekins, 450. WiUiams v. Preston, 439. Williams v. Snowden, 18. Williams v. S. E. Ry. Co., 267. WiUiams v. Williams, 196. Williams v. Wright, 313. WiUiamson v. Ewing, 203. Williamson v, L. & N. W. Ry. Co., 288, 303, 319, 320. WiUiamson v. London, &c., 302, 321, 326, 330. WiUing, V. Elliott, re 123. WUlis V. Earl Howe, 301. WiUmott V. Young, 344. Willaon & York, re, 92. WUmott V. Barber, 526, 529. Wilson, Lloyd & Tichbourne, re, 139. Wilson V Baird, 383. Wilson V. Beatty, 702. WUson V. Brunskell, 372, Wilson V. Church, 244, 253, 255, 698, 701. Wilson V. Cowan, 98, 356, Wilson V, Detroit & Milwaukee Ry. Co.. 186. Wilson V. Dundas, 389, 476, 482. Wilson V. Etna Life Ins. Co., 187. WUson V. Kerr, 431. Wilson V. Metcalfe, 452. Wilson V. MoreU, 81. WUson V. Noble, 312. Wilson V. Northampton, 372. Wilson V, Pengelly, 217. Wilson V. Rhodes, 233. Wilson V. Richardson, 76, 84. Wilson V. Ruflfalovich, 364. Wilson V. Thombury, 370. Wilson V. Wilson, 138, 469, 532, 533. Wiman v. Bradstreet, 373. Wimshurst v. Barrow Shipbuilding Co., 72, 527. Wingard v. Cox, 290. Wingrove v. Thompson, 491. Winkley v. Winkley, 441, 560. Winnett v. Renwick, 698. Winscom, re, 39. Winterfield v. Bradnum, 282, 535. Wintle V. Williams, 482. Winward v. Hoult, 86. Winward v. Thompson, 236. Wise V. Birkenshaw, 479, 482. Wisev. Hewson, 525. Witham v. Vane, 259, 264, 267. Withers v. Parker, 431. Withrow, re, Poucher v. Donovan, 478. Witt V. Corcoran, 51. Witt V. Parker, 431. Wolfe V. Hughes, 293, 403. WoUaston v. WoUaston, 246. Wolverhampton & Staffordshire Bank- Co. V. Bond, 180. Wood, re, 501. Wood V. Anglo- Italian Banking Co., 322, 368. 1 Wood V. Dunn, 481. i Wood V. Gloster, 79. Wood V. Goodwin, 304. ' Wood V. Hotham, 87. i Wood V. Italian Bank, 380. I Wood V. Kay, .307, 392. ' Wood V. Leake, 87. I W^ood V, Mclnnis, 193. I Wood V. Madras, 55. i Wood V, Midgeley, 297. I Wood V. O'Kelly, 72, 73. ' Wood V. Taunton, 79. i Wood V. Wheater, 271, 454. I Wood V. Wood, 154. ! Woods, re, Whittreok v. Woods, 157. Woods v. Woods, 267. Woodcock v. Kilby, 76. Woodcroft, V. Jones, re, 81. : Woodfin v. Wray, 199. I Woodfine, re, 274. ! Woodfine, re, Thompson v. Woodfine, I 280, 282, 286. i Woodhall, re, 141. 1 Woodhall, re, Garbutt v. Hewson, 524. Woodward v. Shields, 231, 252. Woolf v. Pemberton, 236, 237. WooUey v. Colmau, 249. xlii ONTARIO JUDICATURE ACT, 1881. II W; i Woolston, V. Baines, 221. Workingmen's Mut. Soc, 607. Workman v. Robb, 56. Worley v. Glover, 178. Wormsley, re, 160. Worraker v. Pryer, 134, 165. Worssam, re, Hemery v. Worssam, 270, 370. Worth V. McKenzie, 276. Worthan v. Pemberton, 237. Worthington v. Boulton, 162. Worthington v. Johnson, 703. Wortley, re, 491. Wortley, re, CuUey v. Wortley, 255. Wray v. Kemp, 171, 175. Wrentmore v. Hagley, 371. Wright V. Corporation of Grey, re, 81. Wright V. Clifford, 404. Wright V. King, 292. Wright V. Morgan, 202. Wright V. Ray, 399. Wright V. Redgrave, 19. Wright V. Swindon Railway Co., 342, 488. Wright V. Way. 552. Wye Valley Ry. Co. v. Hawes, 258, 259, 260, 261, 262, 263, 267. Wyld V. McMaster 32. Wylie V. McKay, 340. Wymer v. Dodds, 250. Wynne v. Humbertson, 373. Yeatman v. Snow, 166, 292, 310. Yetts, re, 546. Yetts V. Foster, 4.30. York V. Stowers, 226. Yorkshire Banking Co. v. Beatson, 222, 435. Yorkshire Waggon Co. v. Newport Coal Co., 259, 266. Yorkshire Waggon Co. v. Newport and Abercorne Coal Co., 263. Young, ex. p., 245, 458. Young V. Brasaey, 36, 180, 190, 191. Young V. Huber, 253. Young V. Kitchin, 27, 284. Young V. Prittie, 66. Young V. Robertson, 239, 248, 332, 333, 335. Young V. Walter, 87. Young V. Wright, 154. 1! COMIARATIVE TABLE OF English Bulea of 1875 {and amending Rules), Bules of 1883, and corresponding Ontario Rules. BULBS SUP. C. 1875. And Aukndino Rules. RULES SUP C. 1883. ONT. RULES. Order. Rule. Order. 1 Rule. 1 Margin No. Margin Xo. 1 1 I 1 2 2 3 2 2 4 2 1 2 1 3 5 2 2 4 6 3 3 5 7 5 5 7 8 8 8 10 9 3 2 2 12 11 3 3 13 12 4 4 14 13 6 6 16 14 7 7 17 15 8 8 18 16 4 1 4 1 19 18 2 2 20 19 6 1 5 1 23 20 2 3 25 22 3 4 26 22 5 10 32 23 5 6 5 11 33 24 7 12 34 25 8 13 35 26 6 1 6 1 40 27 2 1 2 41 28 7 1 7 1 42 29 2 2 43 30 8 1 i 8 1 45 31 2 i 2 46 32 9 1 9 1 48 33 2 2 49 34 5 i 5 52 38 6 6 53 40 6a 7 54 41 7 8 55 42 8 9 56 43 13 15 62 44 11 1,1a 11 1 64 45 11 6 69 8 11 5 7 70 49 12 1-5 12 1 71-77 50 5,66 8 78 51 zliv ONTARIO JUDICATURE ACT, 1881. COMPARATIVE TABLS— (Continued). RULES SUP. C. 1875 And Auensino Rulbs. RULES SUP. C 1883. ONT. RULBS. Order. Rule. Order Rule. Marg. No. Mug. No. 12 66 12 9 79 61 7 10 80 52 8 11 81 53 9 12 82 54 10 13 83 55 11 14 84 5e 12 15 85 57 12a 16 86 58 13 17 87 59 14 18 88 60 15 22 92 61 18 25 95 62 19 26 96 64 20 27 97 65 21 28 98 66 22 29 99 67 13 1 13 1 101 69 2 2 102 71 ,3,5 3 103 72 4,5 4 104 73 6 5 105 75 7 8 108 76 8 9 109 77 14 1 14 1 115 .80 2 2 116 81 3 3 117 82 4 4 118 83 5 5 119 84 6 6 120 85 16 1 15 1 121 86 2 2 122 87 16 1 16 1 123 89 2 2 124 90 3 4 126 91 4 5 127 92 5 6 128 93 6 7 129 94 7 8 130 95 9 9 131 98 9a 99 13 11 133 103 14 12 134 104 16 15 16 13 135 105 10 14 136 100 10a 15 137 101 8 16 138 96-97 18 17 139 124 16 9a 16 32 154 99 12(6) 47 169 114 17 19 19 COMPARATIVE TABLE OF RULES. xlv COMPARATIVE TABLE— (Continued). RULES SUP. C. 1876 t 1 And Amending Rules. 1 RULES 8UP. C. 1883. ONT. RULES. Order. Rule. Order. Rule. Marg. No. Marg. No. 16 18 > 16 48 170 108 49 171 110 52 174 111 16 21 53 175 111 54 176 111 50 1 17 1 178 383 3 3 180 384 4 4 181 385 5 f 6 182 386 6 6 183 387 7 7 184 389 17 1 18 1 188 115 2 2 189 116 3 3 190 117 4 4 191 118 5 5 192 119 6 6 193 120 7 7 194 121 8 8 195 122 9 9 196 123 19 1 19 1 197 125 2 2 198 126 3 3 199 127 4 4 200 128 19 5 19 9 205 129 6 10 206 131 7 11 207 132 16 12 208 145 18 15 211 •147 19 16 212 149 23 20 216 141 24 21 217 135 25 22 218 136 26 23 219 137 27 24 220 138 28 25 221 139 27 1 27 223 178 21 1 20 1 226 168 19 8 6 230 133 9 7 231 134 19 11 21 5 238 140 22 1 6 239 160 2 7 240 161 3 8 241 162 4 9 242 163 5 / 11 244 164 6 12 245 166 7 13 246 166 xlvi ONTARIO JUDICATURE ACT, 1881. COMPARATIVE TABLE— (Gontinued). RULES SUP. C. 1876 And Amkndino Rules. RULES SUP. C. 1883. ONT. RULES. Order. Rule. Order. Rule. Marg. No. Marg. No. 22 8 21 14 247 167 9 15 248 168 10 17 250 169 19 252 145 19 13 20 253 142 15 21 254 144 30 1 22 1 255 215 1 2 256 215 4« 258 216 6 259 217 4 7 261 218 24 1 23 1 276 173 2 2 277 174 3 3 278 175 4 4 279 167 25 5 280 176 19 14 6 281 143 20 1 24 1 282 i 151-2 2 2 283 153-4 3 3 284 157 23 1 26 1 290 170 2 2 291 171 2a 3 292 172 29 1 27 1 294 203 2 2 295 204 3 3 296 205 4 4 297 206 5 5 298 207 k 6 6 299 208 7 7 300 209 8 8 301 210 10 11 304 211 11 12 305 212 13 14 307 213 14 15 308 214 27 1 28 1 309 178 2 2 310 179 3 3 311 180 4 4 312 181 5 5 313 182 6 6 314 184 7 7 315 185 8 8 316 186 9 9 317 187 10 10 318 188 41a 28 11 . 319 338 59 2 12 320 474 31 12 31 12 364 222 COMPARATIVE TABLE OF RULES. xlvii COMPARATIVE TABLE— (Continued). RULES SUP. C. 1875 And Amending Hulks. RULES SUP. C. 1883. ONT. RULES. Order. Rule. Order. Rule. Marg. No. Marg. No. 31 13 31 13 355 228 11 14 356 221 14 15 357 229 15 16 358 231 16 17 359 232 17-18 ■ 18 360 233, 234 19 20 362 235 20 21 363 236 21 22 364 237 22 23 365 238 23 24 366 239 - 32 1 32 1 371 240 2 2 372 241 3 3 373 242 40 11 6 376 322 26 32 1 380 177 33 2 2 381 382 244 cf.Chy. 0.228 34 1 34 1 389 248 2 2 390 249 3 3 391 250 4 4 392 251 5 5 393 252 7 7 395 253 36 1 36 1 425 254 6 i 8 432 256 7 9 433 257 4, 4(a) 12 436 255 8 13 437 258 9 14 438 259 10 15 439 260 15a ■ 28 452 261 17 30 454 267 18 31 455 268 19 32 456 269 20 33 457 270 21 34 458 272 22a 39 463 273 23 41 465 274 24 42 466 275 36 30 36 48 472 276 31 49 473 277 32 50 474 278 33 51 475 279 34 52 476 ! 280,281 37 1 37 1 483 282 4 5 487 285 2 38 1 521 283 Ist clause xlviii OMTARIO JUDICATURE ACT, 1881. COMPARATIVE TABLE— (Continued). RULES SUP. C. 1876 , R,ir r-u silP .' And Amending Rules. ' ^^^^^ ^^^ ^• 1883. ONT. RUL.BS. Order. Rule. 1 Order. Rule. Marg. No. Mar(?. No. 37 3 1 38 3 523 284 3a 1 7 527 464 36 8 528 465 3c 9 529 466 3d ' 10 530 467 3e 1 12 532 468 3/ 38 13 533 469 15 535 470 38 1 25 545 301 2 26 546 302 3 27 547 303 4 28 548 304 5 29 549 305 6 30 550 306 39 1 39 1 551 307 3 6 556 311 4 7 557 312 40 1 40 1 559 315 4a 3 561 316 4a 4 562 317 4a 5 563 317 7 7 565 318 8 8 566 319 9 9 567 320 10 10 568 321 41 1 41 1 569 325 2 3 571 326 3 4 572 327 4 6 574 328 5 7 575 329 42 1 42 3 581 339 2 4 582 340 3 5 583 341 4 6 584 342 5 7 585 343 6 8 586 344 7 9 587 345 8 10 588 346 10 12 590 347 11 13 591 348 12 14 592 349 13 15 593 350 14 16 594 351 15 17 595 352 16 20 598 353 17 21 599 354 17 22 600 355 19 23 601 356 COMTAKATIVE TAI1I,K OK RULES, XllX CJOMPARATIVE TAmA']—(Cu)i(inu>'rl). RUIiKS SUP. U. 1876 And Amkndino Rules. RUl-KS 8Ul'. C. 1883. Order. Rule. 42 45 43 43 47 44 45 48 51 53 54 20 21 22 23 24 1 10 1 2 1 1 2 2 3 4 5 6 7 8 9 10 1 2 1 2a 4 1 2 3 4 5 6 6rt 8 1 2 3 4 5 6 7 8 4 6 1 Drd.r. Rule. MavK. No. 42 24 601 1 26 604 1 27 605 i 28 606 29 607 32 610-11 34 612 43 1 613 5 617 6 618 44 1 620 2 621 45 I 622 2 623 3 624 4 625 5 626 6 627 7 628 8 629 9 630 47 1 644 2 645 3 646 49 1 649 5 653 8 656 50 1 657 2 658 3 659 6 662 7 663 8 664 10 666 11 667 52 1 696 2 697 3 698 4 699 5 7(K) 6 701 7 702 9 703 10 704 21 754 23 756 ONT. HULKS. MftfR. No. 357 358 359 360 361 cf. 366 of. 378 362 363 I cf. Chy. i\ ) 288-9 364 365 370 371 372 373 374 375 376 377 .378 379 380 J cf. R. S.<>. ( c. 51, s. 36. 392 394 395 396 397 398 399 400 402 403 401 404 405 406 407 408 40s; 410 411 411 cf. 427 cf. 471 OliTAKIO JUDICATUHK ACT, 1881. ( -OM J'AHATI VK 'VA\\\A<:-(C'untiniMl.). RULES SUP. C. 1875 HULKS SUl'. t! 188:<. ONT. HULKS And Amkndino Rui.kh. Oitior. 1 Ktil(,'. Marn. No. Order. Kill.). 1 Mnrg. No. 04 6 52 24 757 414 08 58 Court of Ai)peal. 57« 1 59 i 1 884 cf. 471 61 1 63 1 945 cf. 480 •> 4 948 ' 532 .S 5 949 )32 4 6 950 „.. 537 5« 11 955 481 61 6 12 956 482 . 87 1 64 1 961 454 « 2 2 962 455 3 3 963 457 4 4 964 460 5 ii 965 461 () 7 967 4(>2 6o 8 9(>8 458 8 11 971 459 12 972 45ti 00 1 <)5 1 976 428 3 6 981 429 3 7 982 430 R. S. C. j,. Aug. 1875 8-10 983-985 i'.L 511-515 costs 0. (5. K) 27 (18) 1002 433 17 (19) t34 18 (20) 435 19 (21) 43() L»l (23) 437 2'2n (24) 46:j 23 (25) 438 24 (27) 440 25 (28) 441 26 (29) 442 28 (37) 445 30 (39) 447 31 65 (40) 448 32 (41) 449 33 (42) 450 56 1 66 1 1003 451 2 3 1005 452 3 4 i 1006 453 59 1 70 1 ; 1037 473 28 12 320 474 Al)l>t1U0, as *' the title to real estate " was " affected " thereby. 1^ ,,JU lii ONTARIO JUDICATURE ACT, 1881. Pa(4E 60, — Add to the English cases on the suliject of trial by jury, " Cardinall V. Cardinall, 25 Ch. T>. 77-2." " 63. — After the reference to Canada Genfrnl v. McLaren, add, "Furlong v. Carroll, 7 Ont. App. 145." " 69. — After the second paragraph, add: " The Referee does not decide the issues in the action, but ascertains the facts so as to enable the Court to decide the issues," {Cardinall v. Cardinall, 25 Ch. D. 776-78, per Pearson, J.) As to the powers of Keferees, see also Rule 245. " 70. — In line 11, between " before " and "judgment," insert "or at tha time when. " Bedhornugh v. A rniy and Navy Hotel is also reported in 50 L. T. 173. " 72. — Martin v. Fyfe is also reported in appeal in 50 L. T. 72. " 73. — As to costs where the submission or order is silent as to costs, see also Re Harding <»A/.s V. Tidr (lino 27), i.> now reported in 25 Ch. 1). 617. " 154. — Add to iioti'S to A Et CORRIGENDA. iiii Paoe 157. 164.— " 187.—. " 191. " -200. " 211. 221. " 223.- " 226,- " 237.- " 239.- " 247.- " 2(;r..- " 249. " 270. — (jr. C). 643. As to cases in which taxed costs may be (lireoted to be allowed instead of coininission, see R<' Stiihtihuj, A tithes v. Dnoar, 20 C. I.. J. 193. Add at eud of the notes to liule 11 : " Where a lis pendem is issued a defendant is entitled to appear gratiH and anticipate the service upon him of actually issued process, so as to compel the plaintiff to proceed promptly {AfcTayffarf v. Tnolhc, 20 C. Tj. J. 175 ; PouUoii V. Lee, 7 Pr. R. 415)." Add at end of the last paragraph l)ut one, " and Harmji v. Haroei/, 9 0nt. App. 91." ■Perk'ma v. Mississippi is also now reported in 4 C L. T. 210. Add at end of notes to Rule 61 : " See also Hunter v. Wilcockson, 9 Pr. R. 305." Farrer v. Lacei/ is now reported in 25 Ch. D. 636. Add at end of the last paragraph but one, "and if after appearance default is made in delivering a defence, judgment on pnecipe may be obtained under Rule 520." Add after the fifth paragraph, " An order directing payment by a day named, otherwise judgment to be signed, need not be served before signing judgment on default of payment (Hojdonv. Rultert- soii, W. N. 1884, 77 ; 28 Sol. Jour. 375)." Add at the end of the seventh paragraph, " Millard v. Baddeley, W. N. 1884, 96 ; 28 Sol. Jour. 412, 427." Add at end of the first paragraph, "and Eijerloii v. Anderson, W. N. 1884, 95; 28 Sol. Jour. 95." Add to notes to Uul'j 86 : " This Rule was not meant to enable the (Jourt to do what would l)e equivalent to making a deciee, but merely to t;iko accounts up(»n which tlie (\iui;tcan make a decree (Clomrv. Wilts, W. N. 1884, 110)." Add to first paragraph, "Mill v. Mill, (J. L. T. 252." Webster v. Lci/s is also now reported in 4 (J. L. V. 191. Add tonote.s to (i. (). 59 : " Where trustees were accounting par- ties tliey were not given tlie conduct of proceedings (Allen v. Norris, W. N. 1884, IKS)." (Add to paragiaph ."{). Wlicn a third party a|tpt'arod pursuaut to a third party uoticn;, bi:t dcilim^l to state any tlefence, it was held tliat judginent iniglit l>e ordered iit onci; against lier under the Knglish lade (No. 174 of ISS3) if the .Judge was not satiwlied tliat there was any (piestiou as to tli ; liability oi the third party proper tn be tried (Gluncestershire linnkimj dn. v. Phillips, 12 Q. H. I). o.Tt.) Keith v. linlcher is now reported in 25 Q. B. D. 048 and W. N. 1884, 97." After 510 in the last line, insert " See also Federal Bank v. Harrison, 20 0. L. J. 194." -At the end of 5th line from the bottom, add " Waring v. Pearman, 32 W. 11.429." -Add Jit bottom of page : " Particulars of false and fraudulent mis- re[)rcscntations were granted in Selhjmaun v. Xoumj, W.N. 1884, 93 ; 28 Sol. Jour. 411." -(4th line from foot of page), Oill v. Woudfin is now reported iu 25 Ch. D. 707. See also Oihhimjs v. Stronq, 26 Ch. D. 66. After reference to Potts v. Deane, in the 3rd line, add : " But see Oibhinyx v. Strong, 28 Sol. Jour. 289, 26 Ch. D. 66, where it was held that a defence delivered between notice of motion for judgment and the hearing could not be ignored, but the Court must exercise its discretion under all the circumstances." -For supra, in 19th line from the bottom, read " 12 Ch. D., 787." -Add at end of the third paragraph of notes to Rule 221, " Whyte V. Ahrens, W. N., 1884, 102." -At en. 2<)() is not superseded by the above Kulc " -Armunrv. tVtilkrr (7tli liuo tVoni foot of page), is now reported in 25 Ch. I)., (573. -Belt V. Lawrn is now reported in 12 Q. B. D. 85() and Canada Landed (Iri'dlt Co. v. T/ujw./i.sou, in 8 Unt. App. 696. — Hateleij V. Merchnntu' Di'i^patdi. Co. (last line), is now reported in 4 Ont. 723. —Add after the refereuee to HanilUon. v. Johnaon (in 2nd paragraph), "or to linally determine all (luustions in dispute though the jury niay not have found upon them all (SciocU v. Brititsk Culunihia Towing Co., .Lr., 20 0. L. J. 170; 4 C. L. T. 244)." —After paragraph 5, add: ''Dcinorc.it v. Midland A'. Co., 10 I*. 11. 82." — Lowson V. Canada. Farnieri^, ttc, 'A 0. L. T. 452 has now been reported in 8 (hit. App. 613. — Add to note to Uule 388 : " A notice of trial served before the 12 days had expired for a sitting eoninienoing after the 12 days was held gootl, no motion against the order having been niaile {N. Y Piano Co. v. Stcrcnmn, 20 C. J.. J. 194)." —After the third paragraph add : " In Juncn v. Cnrlinij, \V. N. 1884 109, it was held that the Judge has no jurisdiction unless there be "good cause;' and, without defining 'good cause ' or deciding how far the (luestion of whether it existed or not is the subject of an appeal, the Court of Appeal lield tliat there were in that case no facts which constituted sucli * good cause.' " 532. — Add at foot of page: " Sevtfdc, that an affidavit of information and belief .as to residence abroad is not sufficient ground for an order for security for costs { HolUnijtwortk v. Ilijllin(jsworth, 10 P. R. 5.)" 533. -Add to Maawn v. Alien, 12 Ch. D. 807, " Hatclcy v. Mcrclianf'.<< D'spatch Co., 20 C. \.. J. 2.53." " 4»5 ' 427. " 431. " 435. " 456, " 462. •' 492. " 525, THE ONTARIO JUDICATURE ACT, 1881. 44 VICTORIA, CHAPTER 5. [Passed Aih March, 1881.] An Act to consolidate the Superior Courts ; establish a uniform system of pleading and practice ; and make further provision for the due Administration of Justice. [This Act is founded upon the English Judicature Acts, namely : 36 & 37 Vict., c. 66 [1873], " Supreme Court of Judicature Act." 38 & 39 Vict., c. 77 [1875], amending and extending same, and con- taining the Rules of Court and Forms. 39 & 40 Vict., c. 59 [1876], " The Appellate Jurisdiction Act, 1876." 40 Vict. c. 9 [1877], amending Judicature Acta of 1873 and 1875. 42 & 43 Vict., c. 59 [1879], Civil Procedure Acts Repeal Act, 1879." 42&43 Vict., c. 78 [1879], "The Supreme Court of Judicature Officers' Act, 1879." The Irish Judicature A cts are : 40&41 Vict., 'J. 57 [1877], "Supreme Court of Judicature Act (Ireland), 1877." 41 & 42 Vict., c. 27, amending same.] HER MAJESTY, by and with the advice and con- sent of the Legislative Assembly of the Pro- vince of Ontario, enacts as follows : — 1 . This Act may be cited as " The Ontario Judica- short title. ture Act, 1881." The English Act, sec. 1, enacts that it may be cited for all pur- poses as " The Supreme Court of Judicature Act, 1L73." The Irish Act is called " 'L'he Supreme Court of Judicature Act (Ireland), 1877." 2 OKTAIUO JUDKJATL'KK ACT, 1881. iiieiit of Ai't. Seos. 2, 3. 2. This Act, exxcpt any provision thereof which is CoinmpiKv- declared to take effect on the passing of this Act, or at any other specified date, shall commence and come into operation on the 22nd day of August, 1881, (See Jud. Act of i(S73, s. 2). Section .14, as to the powers of the Judgos to make Rules, went into effect on tlie passing of tliis Act. Section (li), cliarging the expenses of tlie Accountant's OfHce on the funds in (Jourt, took effect from the 1st April, 1881. Section /!>, providing for tlie com- nnitation of the fees of Surrogate Court Judges, operates from the l.st January, 1881. Section Hi], providing for judgments heing de- livered l)j' a .ludge after his resignation, went into elt'ecton the pass- ing of the Act ; and the new jurisdiction of the County Court Judges and Local Masters, under Rule 4'2"2, went into etiect 1st January, 188'2. Ikule 487, as to County Court sittings, went into effect on the passing of the Act. PART I. CONSTITUTIOX OF SUPREME COURT. Union of 3 prom and after the time appointed for the com- BXistiri'"' conrtslnto mcncemcnt of this Act, the several Courts hereinafter one^supreme j^entjoned (that Is to Say) the Court of Appeal, the Court of Queen's Bench, the Court of Chancery, and the Court of Common Pleas, shall be united and con- solidated together, and shall constitute, under and subject to the provisions of this Act, one Supreme Court of Judicature for Ontario. (See Jud. Act of 1873, s. 3- The English section is the same except that it consolidates also the Courts of Exchequer, Admiralty and Probate, the Court for Divorce and Matrimonial causes, and the London Court of Bank- ruptcy. Subsequently, so much of the Act as related to the Court of Bankruptcy was repealed (Jud. Act of 1875, sec. 9). In Ontario the jurisdiction of the Courts of Queen's Bench and Common Pleas includes that of the En^l'sh Court of Exchequer " in matters which regard the Queen's revenue, including the condemnation of contra- band or smuggled goods" (R. S. 0. c. .39, s. 4) ; and the Court of Chancery has " the like equitable jurisdiction in matters of revenue as the Court of Exchequer in England possessed on the 18th March, 186.5" (R. S. O. c. 40, s. 37) ; the day named being the date of the passing of the Canadian Act, 28 Vict., c. 17, s. '2. The Supreme Court does not sit as a Court unless it be to make General Rules and Ortlers (sec. 54, sub-.i. 3). The .Judges of the Supreme Court are also to hold a Council once a year to consider the Procedure and Administration of the Law, and to report thereon (s. 56). The Master in Ordinary, and Local Masters of the Court of Chancery, and the I'axing Officers, are declared to be Officers fif the Supreme Court and attached thereto (s. 58 (2), po'm[)etent to do any work whieh ordinarily is discharged by the Judges of the High (Jourt, and the Judges of the Higli Court are to act, when needed, in the Court of Appeal (ss. 4, 40, post). (2) The Supreme Court shall consist of two permanent divisions (a). The said Courts of Queen's Bench, Chancery and Common Pleas shall constitute one of such divisions, and shall- be called " The High Court of Justice for Ontario." The said Court of Appeal shall constitute the other division, and shall be called " The Court of Appeal for Ontario." [See Jud. Act of 1873, ss. 4, 31.) (a) The English Act, instead of declaring that the Courts of Queen's Bench, &c., shall constitute one of the permanent divisions, enacts that the High Court shall be one of the permanent divisions, and that there shall be in the High Court five divisions ; the Chancery Division to consist of the Chancery .Judges, the Queen's Bench Division to consist of the Queen's Bench Judges, and the Common Pleas Division to consist of the Common Pleas Judges, &c. By the English Act, as by the Ontario, the two permanent divisions are the High Court and the Court of Appeal. (3) The Court of Queen's Bench shall thereafter be High court. called the Queen's Bench Division of the High Court ; the Court of Chancery shall be called the Chancery Division thereof; and the Court of Common Pleas shall be called the Common Pleas Division thereof; the Judges of the said three Courts or Divisions shall be called Justices of the High Court. (5^^ Jud. Act of 1873, s. 31 ; Jud. Act of 1877, s. 4). The English Act does not identify the existing Courts with the Divisions of the High Court bearing the same names ; the Ontario Act expressly makes the High Court and its several Divisions a continuation of the existing Courts, under a new name. See West Huron Election case, 19 C. L. J. 240 ; 3 C. L. T. 440, in note to Sec. 87. (4) The persons hereafter appointed to fill the places of ciiitf Jus- the Chief Justice of the Queen's Bench, the ctnrelr. Chancellor of Ontario, and the Chief Justice of^'"^^",^^' J i.1 • 'appointed. the Common Pleas, and then* successors res- pectively, are to be appointed by the authority mentioned in the British North America Act, and ONTARIO JUDICATURE ACT, 1881. powers. Beo. 3. with the same respective titles as heretofore. {See 8ub-8s. 5-7. ju(j_ ^\ct of 1873, ss. 5, 32 ; B. N. A. Act, s. 96 ; R. S. O., c. 38, s. 4 ; c. 39, s. 8 ; c. 40, s. 5 ; C. S. U. C, c. 10, s. 7 ; c. 12, s. 4.) By the B. N. A. Act, section 96, it is provided that "the Governor- General shall appoint the Judges of the Superior, District and County Courts in each Province, except those of the Courts of Pro- bate in Nova Scotia and New Brunswick." By Statutes of the Pro- vinces of Canada and Ontario the persons appoirfted Judges of the Superior Courts must be Barristers-at-Law of at least ten years' standing at the Bar of Ontario. (See R. S. 0. c. 39, s. 8, c. 40, s. 5, and other Acts above cited. ) The Imperial Act of 1873, section 5, provided that the persons thereafter appointed to fill the places of the Lord Chief Justice of England, tlie Master of the Rolls, the Lord Chief Justice of the Common Pleas and the Lord Chief Baron should be appointed by the respective titles as theretofore ; but by section 32, Her Majesty in Council was authorized to provide for the abolition, on vacancy, of the distinction of the said offices from the olhces of the other Judges of the High Court, such order in Council not to go into opera- tion until laid before each House of Parliament for thirty days. havlequai (S) Save as jn this Act is otherwise expressly pro- vided, all the Judges hereinbefore mentioned, and their successors, shall have in all respects equal power, authority and jurisdiction. {See Jud. Act of 1873, s. 5.) So in England by the section cited. The Chief Justice of the Queen's Bench sha'l be the President of the Queen's Bench Division, the Chancellor shall be the President of the Chancery Division, and the Chief Justice of the Common Pleas shall be the President of the Common Pleas Division. {See Jud. Act of 1873, sec. 31.) So in England by the section cited. (7) Such one of the said three Judges as at the time of the passing of this Act may be entitled to pre- cedence over the other two, shall be the first President of the High Court ; and, on his ceas- ing to be President, the President of the said High Court shall be that one of the Presidents of the Queen's Bench, Chancery and Common Pleas Divisions, who, for the time being, is first in order of seniority. (5^^ Jud. Act of 1873, sec. 5 ; Jud. Act, 1875, sec. 6 ; R. S. O. c. 38, s. 6 ; 37 Vict, c. 7, sec. 5.) Presidents (f\\ of the ^^ Divisions. COURT OF APPEAL. 5 In England the Lord Chancellor is the President of the High Court, Seo. 3. and, in his absence, the Lord Chief Justice of England. sub-si. 8 In Upper Canada, by 9.5 Vict. c. 18, 8. 1 (R. S. O. c. 38, sec. 6), -^ ' the Chief Justice of Appeal has rank and precedence over all the ^**' other Judges of Her Majesty's Courts of Law and Equity. By R. S. O. c. 38, sec. 6 (embodying Con. Stat. U. C. c. 10, s. 6 ; c. 12, s. 4, and 37 Vict. c. 7, s. 5), it is provided, that the Justices of Appeal, the Chancellor of Ontario, and the Chief Justices of the Superior Courts of Common Law shall have rank and precedence among them- selves, according to their seniority of appointments to any of the said offices ; and that the Vice-Chancellor and the Puisne Judges of the Superior Courts of Law shall have rank and precedence among themselves according to seniority of appointment to their respective offices. (8) Upon any vacancy happening among the Judges, the Judge appointed to fill such vacancy is (sub- ject to the provisions of this Act, and to any Rules of Court which may be made pursuant thereto) to become and be a member of the same Division to which the Judge whose place has become vacant belonged. (Jud. Act of 1873, s. 32.) So in England by the section referred to. (9) Nothing in this Act shall prevent, or shall be con- strued as intended to prevent, the transfer of any Judge of any of the said Divisions from one to another of the said Divisions. By the English Act of 1873, s. 31, any Judge of " any of the said Divisions may be transferred by Her Majesty, under her Royal Sign Manual, from one to another of the said Divisions." 4. The Court of Appeal for Ontario, at present ex- Existing isting, is continued under that name, and shall, as here- Appeal* tofore, consist of a Chief Justice, to be called the •'°°"''"''*^- Chief Justice of Ontario, and three other Judges, to be called Justices of Appeal, as in the Act respecting the Court of Appeal, (R. S. O. c. 38,) mentioned ; and the said Judges of the Courts of Queen's Bench, Chancery and Common Pleas, and their successors the Justices of the High Court, .shall be ex officio Judges of the Court of Appeal, for the same purposes and with the same duties and powers as by the said Act is provided with respect to the Judges of the Courts of Queen's Bench, Chancery and Common Pleas. {See Jud. Act of 1875, s. 4 : R. S. O. c. 38, ss. 3, 10.) ONTAKIO .IL'DICATUKK ACT, \^Sl. 8eo8. 4, 5. liy R. S. (). c. 'AS, it was iirovided as follows : " .S. riio Court of A|>i)eal, c-vt present existing, is hereby con- tinued, under the name aforesaid, and shall consist of a Chief .Tustice (who shall have the title hereinafter mentioned), and three i'uisne .Instices (to he called "Justices of Appeal "), appointed from time to time as provided !)> 'J'lie British North America Act, 18G7, and the Judges for the time being of tlie Superior Courts of Law and Kipiity, who sliall be rx ojfii'lu Judges of the Court of Appeal, 80 as to provifle for the cases mentioned in the tenth section of this Act." "10. In case of there being a vacancy in the Court of Appeal, or iu case, from illness or some other cause, one or more of the Judges of tlie said Court, is or are not present at some sitting of the Court, or in case one or more of the said Juilges is or are under some legal dis(jualilication to hear an appeal, the Judges of the Courts of (;Jueen's Bench, Ciiancery, and Common Pleas, shall choose from amongst their nundjer a Judge, or as many Judges as necessary, to supply for the time the place or [jlaces yacant, or the place or places of the Judge or Judges of the Court of Appeal so absent or dis- qualified ; and the .fudges so chosen and acting shall have authority to continue to hear appeals paitly heard before them, and to give judgment in all appeals heard before them, notwithstanding that such vacancy may in the meantime have been tilled up, or that the Judge who was absent may have resumed his duties." In Kugland, by section 4, of the Act of 1875, as amended by sec- tion ]r», of the Act of !87(i, the Court of Appeal consists of five ex-oJfirAo Judges, and six ordinary Judges ; and provision is made for the attendance in appeal, where needed, of a Judge of each of the respective Divisions of the High Court. One cause of disqualification to sit is given by sec. 13 of R. S. O. c. 38, which is as follows ; — " 13. No Judge against whose judgment an appeal is brought, or who took part in the trial at Nisi rrius, or in the hearing in the Court below, shall sit or take part iu the hearing of, or adjudication upon, the proceedings in the Court of Appeal. " As to other causes of en Court in presence of the (!hancellor. In England the Lord ('haiicellor takes the oath in pre- since of Her Majesty iu Council, "or otherwise, as Her Majesty may direct" (31 & 32 Vict., c. 72, Sched. 1st part) ; and the other Judges take "the oath in presence of the L(n"d (!hancellor (Jud. Act 1875, s. 5). The oath taken by the English Judges (31 & 32 Vict., c. 72) differs a little in form from that given in the present Act, which follows the form hitherto prescribed in this Province, (li. 8. O. c. 38, 8. 7 ; c. 39, s, 9 ; c. 40, s. 7. ) 6. Every existing Judge is, as to all matters within Saving of the legislative authority of this Province, to remain "biigauong in the same condition as if this Act had not passed ; 5ua'',|fs"'^^ and, subject to the provisions of this Act, each of the said existing Judges shall be capable of performing and liable to perform all duties which he would have been capable of performing or liable to perform if this Act had not pa.>sed. {See Jud. Act of 1873, s. 1 1.) The English section enumerated the nir\tters as to which "every existing Judge" was to "remain in the same condition," viz., * ' tenure of office, rank, title, salary, pension, [)atrouage and jjowers of appointment or dismissal, and all other privileges and disqualifi- cations. " 7. If, in any case not expressly provided for by Provision this Act, a liability to any duty, or any authority orextraoX"^ power, not incident to the administration of justice "?7'1'^^'«^ 1 11 1 1 • 1 r 1 1 of Judges. shall have been imposed or conferred by any statute or law (a) upon the Judges or any Judge of any of the Courts united and consolidated as aforesaid (save as hereinafter mentioned), every Judge of the said High Court shall be capable of performing and exer- cising, and shall be liable to perform and empowered to exercise, every such duty, authority and power, in the same manner as if this Act had not passed, and as if he had been duly appointed the successor of a 8 ONTARIO JUDICATURE ACT, 1881. Seo. 7. Judge liable to such duty, or possessing such authority 8ub-M. 1.2. or power, before the passing of this Act. {See Jud. Sees. 8, 9. Act of 1873,8. 12). (a) The Englinh Hection has here the words '*or custom." (2) Any such duty, authority, or power, imposed or conferred in any such case as aforesaid, upon the Chief Justice of Ontario, the Chancellor, the Chief Justice of the Queen's Bench, or the Chief Justice of the Common Pleas, shall continue to be performed and exercised by them respectively, and by their respective successors, in the same manner as if this Act had not passed. -{See Jud. Act of 1873, s. 12). The English enactment is to the same effect. Seal of Court. 8. The Lieutenant-Governor in Council may, from time to time, determine and declare the seal to be used in the Supreme Court, and by which its proceed- shall be certified and authenticated ; and until there is a seal for the Supreme Court, the seals now in use in and for the existing Courts may be used in and for the respective Divisions of the High Court, and in and for the Court of Appeal respectively. {See Jud. Act of 1873, s. 61 ; R. Sup. C, April, 1880, R. 45 ; R. S. O. c. 40, s. 3.) The English Acts do not provide for the seals to be used, except that section 61 of the Act of 1873 enacts that in e^^ery District Registry "such seal shall be used as the Lord Chancellor shall from time to time direct." By. R. S. C, April, 1880, R. 4.5, it is provided that ' ' the official seals to be used in the Central Office shall be used as the Lord Chancellor shall from time to time direct." PART II. JURISDICTION OF HIGH COURT. Jurisdiction of High Court of Justice. 9. The High Court of Justice shall be Supciiv^r Court of Record, and, subject as in Act men- tioned, shall have the jurisdictic iich, at t1 ^ commencement of this Act, was ve.-- in, or capable of being exercised by, the Court ot «.Jueen"s Bench, the Court of Chancery, the Court of Comn.on Pleas, and Courts of Assize, Oyer and Terminer, and Gaol \f ■ ■■ PENDING BUSINESS. 9 Delivery (whether created by Commission or other- See. 9. wisej, and shall be deemed to be and shall be a '"'*■''■•'• '■ continuation of the said Courts respectively (subject Sec. 10. to the provisions of this Act) under the name of the High Court of Justice aforesaid {See Jud. Act of 1873,8. 16; R. S. O., c. 4i,s. I e/ sq.\ 36 Vict, c. 8, ss. 52 & 55. Ont.) In Clarhrowjh v. Toothill, W. N., 1881, 110; 50 L. J. Chy- 743; 18 C. L. J. 101, it was held that where an Act passed before the Judicature Act and referring in terms to a common law action only authorized certain proceeding, such proceeding might after the Jud. Act be taken in all the Divisions of the High Conrt. See also notes to sec. 57, pout. In England it has been held that the prerogative writ of man- damus is still only granted on application to the Q. B. D., {OlosMop V. Heston Local Board, 12 Ch. D. 115, 116, 122). See in Ont., how- ever, notes to sec. 17. (2) The jurisdiction aforesaid shall include (subject to the exceptions hereinafter contained) the jurisdic- tion which, at the commencement of this Act, was vested in, or capable of being exercised by, all or any one or more of the Judges of the said Courts, respectively, sitting in Court, or Chambers, or elsewhere, when acting as Judges or a Judge in pursuance of any statute or law ; and all powers given to any such Court, or to any such Judges or Judge, by any statute ; and also all ministerial powers, duties, and authorities, incident to any and every part of the jurisdiction. {See Jud. Act of 1873, s. 16.) In the corresponding English section (16) the same Courts are mentioned as above, and several others ; and the jurisdiction is said to be "transferred to" the High Court — an expression which is not used in this Act. Where a person fraudulently personating a testator had forged mortgages of the testators estate and an action was brouglit to obtain a declaration that certain mortgages were void, and to have them delivered up, Kay, J. , looking at this enactment said that he was not administering equity merely, and should therefore give the plaintiff his legal remedy as to the deeds, and direct them to be delivered up as well as declare them void. (Cooper v. Vesey, 51 L. J., Chy. 149) 10. From and after the commencement of this Act Transfer ot the several jurisdictions vested in the said High Court {|u"f„'e8l of Justice, shall cease to be exercised except [in the BIBLIOTHEQUE OE DROIf U.d'O. O.U. .. LAW LIBRARY H 'f' m 10 ONTARIO JUDICATURE ACT, 1881. Sees. 10, 11. name of] the said High Court of Justice as provided subs. 2. by this Act, save as otherwise in th.is Act provided. {See Jud. Act of 1873, s. 22.) The English section uses the word " by," instead of the words in br'.okets. Provision as to pending business. 1 1. In all causes, matters, and proceedings whatso- ever, which shall have been fully heard, and in which judgment shall not have been given, or having been given, shall not have been signed, d.''awn up, passed, entered, or otherwise perfected, at the time appointed for the commencement of this Act, such judgment, decree, rule, or order, may be given or made, signed, drawn up, passed, entered, or perfected, respectively, after the co.nmenccment of this Act, in the name of the same Court, and by the same Judges and Officers, and generally in the same manner, in all respects, as if this Act had not passed ; and the same shall take effect, to all intents and purposes, as if the same had been duly perfected before the commencement of this Act. {See Jud. Act of 1873, s. 22.) This corresponds with tlie English enactment. See note to sub- section (2) infra. (2) [a) Every judgment, decree, rule, or order of any Court whose jurisdiction is hereby {b) [vested in] the High Court of Justice, which .shall have been duly perfected at any time before the commence- ment of this Act, may be executed and enforced, and, if necessary, amended or discharged, by the High Court o. Justice, in the same manner as if it had been a judgment, decree, rule or order of the said High Court ; and all causes, matters, and proceedings whatsoever {c), which shall be pending in '. / of the Courts whose jurisdiction is so {h) [vested] as aforesaid at the commence- ment of th's Act, shall be continued and con- cluded {(f) in and before the High Court of Justice ; and {e) the said High Court shall have jurisdiction for so continuing and concluding matters criminal as well as civil. {See Jud. Act of 1873, s. 22 ; Order 62, post.) (a) Tlie English enactinents from wliich these are taken, apply to tlie Court of Appeal, as well as to the High Court ; as the Statute was creating the Court of Ap})cal. cnnun; ' • proc« in the "proc the " ' of crin (3) HIGH COURT. 11 (/;) Instead of '• vested in," the English Act has " transferred to. " Sec. 11. (c) The English section has here the wotds "whether civil or 8iib-.s.s. 2,3. criminal." The Provincial Legislature has no jurisdiction over „ ,„ '•procedure in criminal matters." (,SVe B. N. A. Act, s. 91, No. 27.) ((/) The words that follow in this sul (-section to the end are not in the English .\ct. See note to sub-s. (.S). ((') While the Provincial Legislature has no jurisdiction over " procedure in criminal matters," its powers of legislation include the "Constitution" and "Organization of Provincial Courts, both of criminal and civil jurisdiction" (B. N. A. Act, s. 92, No. l4. (3) The said High Court shall have the .same juri.s- diction in relation to all such causes, matters and proceedings as if the same had been commenced in the High Court of Justice, and continued therein down to the time at which this Act goes into effect ; and, .so far as relates to the form and manner of procedure, such causes, matters and proceedings, or any of them (a), shall be con- tinued and concluded in and before the s? ! li igh Court, as shall be directed by Rules or (>;ders of Court. {See Jud. Act of 1873, s. 22 Order 62, (rt) The English section referred to contains the same provision with respect to the High Court as tliis sub-section does up to this point ; but, instead of what follows, the English Act provided that such suits should be continued and concluded either in the Courts from which they were transferred, or according to the course of the High Court, as the said Court might think lit to direct. The Court afterwards gave the directions which have been followed in Rules 493 and 494. 12. The jurisdiction (a) [of] the High Court ofRuiesasto Justice and the Court of Appeal, respectively, shall ju^gafution. be exerci.sed (so far as regards procedure and practice) in the manner provided jy this .Act, or by such Rules and Orders of Coui'^ as may be made pursuant to this Act ; and where no >pecial provision is contained in this Act or in any such Rules or Orders of Court with reference thereto, it shall be excicised as nearly as may be in the same manner as the same might have been exercised by the res[)ective existing Courts if this Act had not been passed. {Sw Jud. Act of 1873, s. 23.) (a) Instead of the word " of, ' the English Act has the words " by this Act transferred to." .Suu .sec. 02 and note at the beginning of the IJules. Ij i I 12 Seo. 13. ONTARIO JUDICATURE ACT, 1881. JURISDICTION OF COURT OF APPEAL. Jurisdiction 13. The Court of Appeal shall be a Superior Appe^^ °' Court of Record, and shall [continue to have all the jurisdiction and power which the said Court has here- tofore had, save as varied by or under this Act ; and in civil cases shall also] have jurisdiction and power to hear and determine appeals from any judgment or order, save as hereinafter mentioned, of the High Court of Justice, or of any Judges or Judge thereof, subject to the provisions of this Act, and to such Rules and Orders of Court for regulating the terms and conditions on which appeals shall be allowed, as may be made pursuant to this Act. (See Jud. Act of 1873, ss. 18, 19 ; R. S. O. c. 38, s. 18, et j^eq.) The words in brackets are not in the English section. The section otherwise corresponds with the tirst part of the English section 19. In civil and criminal cases, the jurisdiction of the Court of Appeal is appellate only. (See R. S. 0. c. 38, s. 18, and Brown v. Collins, W. N. 188.3, 155.) It has original jurisdiction in Election cases (s. 20). The former appellate jutisdiction in civil cases is, if anything, enlarged by the present section, which confers the jurisdiction to entertain an appeal from any "judgment or order." The right of appeal is subject to new restrictions. (See sec. 32 et seq.) In giving an opinion on a special case, the jurisdiction exercised by a Court is judicial, not consultative, so that its decision is a "judgment or order." (Overneers of Walsall v. L. ) In appeals from the Surrogate Courts, as provided in " The Surrogate Courts Act." " (r) In appeals from Stipendiary Magistrates, as provided in the twenty-fifth section of "The Act Respecting the Administration of Judice in Unorganized Tracts." " ((/) In appeals from a Judge of a County Court, as provided in " The Act respecting Water Privileges." "20. The Court of Appeal and the Judges thereof shall have jurisdiction in the trial of Election cases, as provided by " The Eh'clion Act " and " The Controverted Elections Act." "21. The Court shall have power to quash proceedings in cases brought before it, in which error or appeal does not lie, or where such proceedings are taken against good faith. " 22. The Court of Appeal p'lall have all the powers and duties as to amendment and otherwise of the Court or Judge from which or whom the appeal ia had, together with full discretionary power to receive further evidence upon questions of fact ; such evidence to be either by oral examination in Court, by affidavit, or by deposition taken before any person whom the Court may nominate. "(2.) Such further evidence maybe given without special leave upon interlocutory applications, or in any case as to matters which have occurred after the date of the decision from which the appeal is brought. See Sanders v. Sanders, 45 L. T. 637 ; 51 L. J. Chy. 276 ; 18 C. L. J. 236. " (3.) Upon appeals from a decree or judgment ui)on the merits at the trial or hearing of any action or matter, such further evidence (save as aforesaid) shall I'i admitted on special grounds only, and not without the special le ; e of the Court. " 23. The Court shall have power to dismiss an appeal, or give any judgment or make any decree or order which ought to have been made, and direct the issue of any process, or the taking of any pro- ceedings in the Court below, or to award restitution and jiayment of costs, or to make such further or other order as the case may require." The Court may make such order as is justified by the law as then existing, though the eflfect be to vary a decision of the Court below, which was in accordance with the then existing law (Quilter v. Maple- son, 47 L. T. 561). The Rule generally followed by the Courts is not to review the findings of the Judge of first instance, when his decision depends upon the balance of testimony (Hak v. Kennedy, 8 Ont. App, 167.) ■ '! 14 ONTARIO JUDICATURE ACT, 1881. SeoSi 13-15. The Oourt may under this seotion, however, review a decision as to a question of fact arrived at upon conHicting evidence, and is not deterred from reversing such a judgment merely by the consideration that the .Judge of first instance hail tiie advantage of seeing the de- meanour of the witnesses and tlieir manner of giving their (;vidence, unless the decision of the case rests upon tiie credibility of the wit- nesses, and tlie .fudge in determining the credit to l)e given tothem- proceeded u[ton their demeanour. (See IJan v. liruwii, 18 (h*. 081 ; Morrison v.' Jiolnii.tou, IK (>r. 480; Ariii.tfroiif/ v. GiK/p, 25 (Ir. I ; TIk' (.'/miinhanfa, I P. 1). '2S:i ; Jiiu-ihi/ v. inAlnmu, 4 (!h. D. 24; Si/iiiiHtjfoii V. Si/iiiiiitffoii, li. U. 2 Sc. Api). 424 ; (iroi/ v. Tnrnhnll, ib. ">;i ; Rciltinirc v. Fl'tird, 20 Ch. D. 22 ; Trninpour'v. Sni/lor, 1 Ont. App. 104 ; Tin/lor v. Tai/lor, ib. 2(;4 ; /iV Randolph, ib.' :«1 ; The MihiiiPKc, 4,S L T. 107) Where the Appellate Court has the same materials before it as the Court whose decision it is reviewing, the above considerations do not apply, (Rcihjravc v. Hurd, 20 Ch. D. 2.3,) and the T'ourt will exercise its judgment on the evidence just jvs it would on a (luestion of law. It will reverse the judgment if satisfied that it is wrong, (Birdan v. Greenwood, 20 Ch. D. 769 n) (ttherwise it will affirm it, (Symbufton v. Si/muKjton, sup. ; Hale V. Kennedy, 8 Ont. App. 157.) "24. The Court shall have power to make such order as to the whole or any part of the costs of an appeal as may seem just. " 25. The powers in the three next preceding sections may be exercised by the Court, notwithstanding that the ai)peal is brought against part only of the judgment of the Court below ; and such ])ower may be exercised in favour of all or any of the respondents (»r parties, although such respondents or parties may not have appealed from, or complained of the judgment." onanappe'd 14^- ^OT all the purposcs of and incidental to the m^i Court, hearing and determination of any such appeal, and ^""w"u'^'"the amendment, execution and enforcement of any peal ti> have . , ' , i . r i all po\\.i.s of judgment or order made on such appeal, and for the High C"ii't. pj^jj.pQj,g ^f every other authority given to the Court of Appeal by this Act, the said Court of Appeal shall have all the power, authority and jurisdiction by this Act vested in the High Court of Justice. (See Jud. Act of 1873, s. 19, second part ; R. S. O. c. 38, s. 22). This corresponds substantially with the second part of the English section 19. This section only confers additional powers on the Court of Appeal without interfering with the practice under the Appeal Act ; so th.at execution for costs, etc. awarded by the Court of Appeal is to be issued out of the (Jourt appealed from (Freed v. Orr, 2 C. L. T. 90 ;) See Lowsor- v. Canada Farmers' In«. Co. 2 C. L. T. 47. .jiiriRdiction 15. Thc jurisdiction and power of the Court of rukTii". Appeal, in respect of the said matters and all others, shall be and are subject to the provisions of this Act, and to such Rules and Orders of Court for regulating RULES OF LAW. 15 the terms and conditions on which such appeals shall Seos. 15, 16. be allowed, as may be made pursuant to this A.ct. ^"^"''- ^• (^S*^^ Jud. Act of 1S73, s. 19, Jt)d 'part). Same in elt'oct as the English enactment referred to. RL'J.KS UK LAW, 16. in every civil cause or matter commenced in '-"w ami t r • 1 f- r t • T iT^ • 1111 I'fiuity to be the Hi^h Lourt 01 Justice, Law and nquity snail be ((imurrent- administered by the Hip^h Court of Justice and the t^;ca"'"'*' Court of Appeal respectively according to the Rules _ — n - — "• • -" J — Lppeai respectively according to the Rules following (Jud. Act of ICS73, s. 24 ; Sa- R. S. O., ss. 4. 5)- C.49, (2) If any plaintiff or petitioner claims to be entitled to any equitable estate or right, or to relief upon any equitable ground against any deed, instru- ment, or contract, or against any right, title, or claim whatsoever asserted by any defendant or respondent in such cause or matter, or to any relief founded upon a legal right which hereto- fore could only have been given by a Court of Equity, the said Courts respectively, and every Judge thereof, shall give to such plaintiff or peti- tioner such and the same relief as ought to have been given by the Court of Chancery in a suit or proceeding for the same or the like purpose pro- perly instituted before the passing of this Act. (Jud. Act of 1873, s. 24, sub-s. i.) Taken from the Imp. Act. This and the next section deal with the old anomaly of diflferent Courts, recognizing different rights and duties, applying different remedies to the same cjise, and in some oases even enforcing rules of law ill conflict with one another. The removal of the conflict of law is provided for by 3. 17. The rest of the matter is dealt with in the present section, the ^jrovisions of which have been summarized thus : — The plaintiff may assert an equitable claim in any Division of tlie High Court (sub-s. 2) ; and may obtain an eoeedin:^s, {Gibh.iv. Gtdld,SQ. B. D., 296, 9Q. B. D., 59, ) irrespec- tive of the (juestion whether such matters formerly constituted at Law a good answer to a plea of the Statute. In AdiiiiiKoti V. Adainmn, 7 Ont. App. o92, the opinion was expressed by Burton, J. A., that the owner of >'n equitable estate cannot notwithstanding the .Jud. Act. pro>;eed to recover possession of land against a trespasser in possession, but wa° bound to sue in the name of the person having the legal estate. O.'his opinion did not form l)art of the judgment of the Court in the case, and was founded upon the view that befoi'e the Administration of Justice Act, 1873, ejectment would not lie in such a case, and that the latter Act only enal)led the Court f>f Chancery to entertain suits for ejectment in the same way as the Courts of Common Law. The point, which did not there ilistinctly arise as tlie proceedings were before the Jud. Act, has since l)een considered in Hctiian v. Hwnan, 3 C. L. T. 163, where it was decided that since the .Tud. Act. such an actitm may be maintained by the eipiitable owner in his own name. (But s-^e S8. Where a partnership, had by order of the Court been dissolved, the plaintiff and defendants signed an agreement of compromise ; the plaintiff subsequently repudiated the agreement, and proposed to proceed with his action, alleging that his signature had been ob- tained by fraud, it was held that the Court had jurisdiction on sum- mons to stay further proceedings in the action without a fresh action being commenced to enforce the agreement (Eden v, Naiah, 7 Ch. D. 781 ; Be Gaudet 12 Ch. D. 882) ; or an action to enforce the agree- ment might be brought (Hart v. Hart, 45 L. T. 13 ; 17 C L. J. 413 ) See before the Judicature Act Prt/er v. Grihhle, L. K. 10 Chy. 634, also Small v. Union Permanent B. S., G Pr. R. 206 where it was held that a compromise of a suit entered intf> before answer might be set up by the answer, and specific performance of it prayed by way of cross relief. An application to stay must in general be on notice. " In a sum- mary way " does not mean ex parte except in cases of emergency, (See Blewitt v. Dowlimj, W. N. 1875, 202 ; Kevers v. Mkhdl, VV. N. 1876, 53, and note to 8. 17 sub-s. 8). In Besant v. Wood, 12, Ch. D. 630, it was said that though a pending motion cannot be restrained a person may in a proper case be restrained from instituting proceedings. (See also Cercle Bestaii- rant Co. v. Lavery, 18 Ch. D. 555). Rev. Stat. c. 40, s. 98 (and Rev. Stat. c. 50, s. 72) make provision with regard to staying proceedings when another action for the same cause is pending out of Ontario as follows : "98. If any suit is brought in the Court of Chancery [in any Court of Law in R. S. O. c. 50, s. 72] for any cause of action for which any suit or action has been brought and is pending between the same parties and their representatives in any place or country out of Ontario, the Court, or any Judge thereof, may make an order to stay all proceedings in the Court of Chancery [in such first men- tioned Court in R. S. O. 50 s. 72] until satisfactory proof is offered to the Court or Judge that the suit or action so brought in such other place or country out of Ontario is detennined or discontinued." (29, 30 V. c. 42 s. 4). The rule in England is, that where one of two actions for the same cause is pending abroad, the Court has jurisdiction to stay, but the party applying must make out a special case for relief ; whereas where all the actions are in England, or semble in the Queen's Courts anywhere, the concurrent proceedings are prima/acif vexatious (McHcnry v. Lewis, 21 Ch. D. 202 ; 22 Ch. D. 397). The Court will not consider the double litigation vexatious where there are substantial reasons to induce the plaintiff to sue in both coun- tries ; as when he can get judgment in each action, but execution is more easily obtained in one than in the other (Peruvian Ouano Co., STAYING PROCEEDINGS. 91 7. Bockwoldt, 23 Ch. D. 225 ; Hyman v. Helm, 24 Ch. D, 531 ; Direct 8«o, 18. U. S. Cable Co. v. Dom. Tel. Co., 8 Ont. App. 416). «ub-i.«. Whether a Court having ample authority to decide the matter brought before it should await tne expected adjudication of another tribunal having only similar authority is merely a question for the exercise of judicial discretion, (Phonpfiate Seivatje Company v. Mulle- fon, 1 App. Ca. 780.) See Hounston v. At. of Sllyo, W.N. 1884, 29. There is a discretiori to stay proceedings in the High Court for damages for a collision, in respect of which proceedings are being taken i« rem in a Vice Admiralty Court. (77te Peshawur, 48 L. T. 796, 8 P. D. 32). Under the Ont. Statute above mentioned, proceedings were stayed in this Province, where the matter could more conveniently be dis- posed of in the foreign Court, by reason of the suit being there m a more advanced stage, and the parties being personally subject to the jurisdiction of the foreign Court, and the latter was the most convenient, in view of the evidence to be procured. {HoweM v. Jtwett, 7 Pr. R. 69. ) Actions or proceedings which are absolutely groundless are frivo- Staying lou8 and vexatious. The institution of them is an abuse of the pro- vexatioug cess of the Court, and they may be .stayed summarily upon motion, P™''®* '"Ks- (Edmunds v. Atty. Gen. 26 W. R. 550 ; 38 L. T. 213 ; W. N. 1878, in ;) e. ij. actions against a public officer for an act plainly in accord- ance with his duty {Cantro v. Murray, L. R. 10 Ex. 213) ; against a Judge for any act done in that capacity, (Cobbett v. Field, W. N. 1877, 8; Hind v. Brett, W. N. 1883, 37) ; where the point has already been decided against the plaintiff in another action, {Daivkins v. Saxe Weimar, etc., 1 Q. B. D. 499; EdmundH y. Attorney General, supra. Mortlock v. Mortlock, 20 L. T. N. S. 773) ; where the plaintiff has no locus standi, (Rohson v. Dodds, L. 11. 8 Eq. 302 ; Vah v. Op])€rt, 5 Ch. D. 969) ; where the claim though stating a sufficient case is shewn by admission of the plaintilf to be without foundation, (Jiune.'ion V. Laing, 7 Pr. II. 404.) Where a right to sue, however slight, appears on the face of the proceedings, and is not displaced by any admission, the plaintiff will not be prevented from having his action disposed of in the regular way (liloxam v. Metropolitan, &c. , L. K. 3 Chy. 337 ; Seaton v. Grant, L R. 2 Chy. 459) ; but he may be directed to facilitate an early disposition of the action, [Jameson v. Lainij, supra.) An action in which relief is claimed which had been already claimed in another action will be stayed, only in so far as it claims rehef included in the former action. (Morton v. Quick, 26 W. R. 441). There is no rule of practice by which a plaintiff ordered to pay costs in the course of an action, but not i)aying them, is liable to have his action stayed till they are paid (Morton v. Palmer, 9 Q.B. D. 89). An action may be stayed till security ordered to be given for damages has been given (Richards v. Howell, W. N., 1883, 159, 168). One of two cross actions between the same parties, arising out of cross the same matter may be stayed, and a consolidation in fact thus actions, effected ; and where such an application is made the action against the party on whom the burden of proof lies ought in general to be stayed, and the action brought by him ought to be allowed to pro- ceed, the other party being at liberty to raise by defence, set off or counter-claim all qitestions intended to be raised by him in the action which is stayed (Thomson v. .S". Eastern Ry. Co., 9. Q. B. D., 320). See further the notes to Rnle 395. n M »i' 1:;" ' . \ i i 22 ONTARIO JUDK.ATUHE ACT, 1881. 8Ub Subject M nforeHaiil Coiniiiun Ijaw and Htatutory Rules are to govern. ?**'' ^5'g (7) Subject to the aforesaid provisions for giving effect * ' ■ to equitable rijjhts and other matters of Equity in manner aforesaid, and to the other express provisions of this Act, the said Courts respec- tively, and every Judge thereof, shall recognize and give effect to all legal claims and demands, and all estates, rights, duties, obligations, and liabilities existing by the Common Law or created by any Statute, in the same manner as the same would have been recognized and given effect to if this Act had not passed by any of the Courts whose jurisdiction is [vested in] the High Court of Justice. (See ih. sub-s. 6). Same a8 t)ic English sub-suction referred to, except that the latter has the words "transferred to" instead of "vested in ;" and after the word "law'' has the words " or by any custom." done in every case as far as possible. coini.iet? (8) (a) The High Court of Justice and the Court of Appeal respectively, in the exercise of the juris- diction vested in them by this Act in every cause or matter pending before them respectively, shall have power to grant, and shall grant, either absolutely or on such reasonable terms and con- ditions as to them shall seem just, all such remedies what.soever as any of the parties thereto may appear to be entitled to in respect of any and every legal or equitable claim properly brought forward by them respectively in such cause or matter ; {b) so that, as far as possible, all matters so in controversy between the said parties respectively may be completely and finally deter- mined, and all multiplicity of legal proceedings concerning any of such matters avoided. {lb sub-s. 7.) (a) Same as the English sub-section referred to. (6) Sir W. T. Charley, M.P., in his edition of the Judicature Act said : "If the closing words of this section be verified by experi- ence, this Act will prove a second Magna Charta to the suitor. " A cause or matter is pending within the meaning of this section BO long as final judgment remains unsatisfied (Salt v. Cooper, 16 Ch. D. 544 ; Smith v. Coweli, 6 Q. B. D. 75). See also Re Clagett, Ford- ham V. Claijett, 20 Oh. D. 637, where it was said that a "pending matter " in any Court of Justice is one in which some proceeding may still be taken. The meaning of this and the preceding sub-section is, that when- ever a subject of controversy arises in an action which can conveni- ently b should liti§at limite< ence o Rule See JJowiU D. 882 RULES OF LAW. as fiUly be determined between the piirtieH to the action, the Court See. 18. should, if possible, determine it ho as to prevent further and needless 8uli-s. 8. litigation {Ne '/'harp, 3 P. D., 81). The right of the parties is o „ 17 limited by the opinion of tlie Oourt aa to the ^iractical conveni- ence of trying incongruous claims in the same action. See notes to Rule 127. See aXeo Hedfey V. Batfs, 13 Ch. D. at p. 501 ; DuwdeHwellx, Dowdeswell, 9 Ch. D. 294 ; lit (Jaudet Freren SteaniH/iip Co., 12 Ch. D. 882. The Court may, nevertheless, decline to decide questions relating to contingent interests which may never come into possession {Kecan v, Craw/ord, G Ch. D. 29.) 17. Whereas it is expedient to amend and declare "i'''* o'J»7 ,T ,, f. '■ , . . t • /~\ • Upon certain the Law to be hereafter administered in Ontario as points, to the matters next hereinafter mentioned : Be it en- acted as follows : (See Jud. Act of 1873, s. 25 ; Act of 1875, s. 10 ; R. S. O. c. 40, ss. 36, 86,87 ; c. 49, s.s. 4, 5,21, 23; c. so, ss. 131-133-) This recital does not follow the language of the English section referred to (23) ; the difference is immaterial. The object of the section is to render uniform the rules of law administered in the several Divisions of the Court on the points as to which such rules were formerly in conflict. This had been done to a considerable ex- tent in Ontario by the Administration of .Justice Act, 1873, 3(5 Vict. 0. 8 (R. S. 0. c 49, ss. 4, 5, 21, 23 ; R. S. O. c. 40, ss. 80, 87, ; c 50, ss. 131-133, &c.) The method which has been adopted in the present section is to deal in the first ten sub-sections with specific cases in which conflict- ing rules formerly existed, and to provide what rule is to prevail for the future. The first sub-section in the English Act, and one substituted for it under section 10 of the Jud. Act 1870, provide for the administra- tion of the estate of a deceased person who is insolvent, and make applicable thereto the same rules as the Bankrupt Law provides for estates administered thereunder. "The British North America Act " gives exclusive jurisdiction to the Dominion Parliament in matters of "Bankruptcy and Insolvency " (s. 91, No. 21 ;) but the subject is not without legislative provision in Ontario, for by 29 Vict. c. 28, 8. 28 (R. S. 0. c. 107 s. 30), it was enacted, that "on the administra- R. 8. O. tion of the estate of any deceased person, in case of a deficiency of i '• 107, b. 30 assets, debts due to the Crown and to the executor or administrator of the deceased person, and debts to others, including therein, respectively, debts by judgment, decree or order, and other debts of record, debts by specialty, simple contract debts, and such claims for damages as by statute are payable in like order of administration as simple contract debts, shall be paid pari paasu and without any preference or priority of debts of one rank or nature over those of another ; but nothing herein contained shall prejudice any lien ex- isting during the lifetime of the debtor on any of his real or personal estate." x i 11 24 8eo.U7. Bub-ss.. 2-4. Statutes of Liinitntions not to apply to express trusts. ONTAItlO JUDICATURE ACT, 1^81. Ek^uitable waste. Merger. (2) No claim of a cestui que trust against his trustee for any property held on an express trust, or in respect of any breach of such trust, shall be held to be barred by any Statute of Limitations. (Jud. Act, 1873, s. 25, sub-s. 2 ; See R. S. O. c. io8, s. 30.) Same as the English sub-section. See Petre v. Pelre, 1 Drew, .39.3, for the difference in Efjuity between express and implied trusts. In the case of an express trust it has always been the doctrine of Courts of Fruity that no time, aa between the trustee and cestui ijue trust, operates as a bar to the eiiuitable right of the latter ; and this sub-f ection is only a statutory declaration of that doctrine, {Harnlon v. Teniaon, 20 Ch. D. 109.) As to what nevertheless amounts to laches and acquiescence which will be a bar to relief, see ih. and Lewin on Trusts 6th Ed. 714, \,\.^x Fisher Dig. 1880, p. 22(X). It is not necessary that the express trust be evidenced by writing to bring the cass within this provision. (Cook V. Grant, 32 C.'P. 511, 521). Sec. 30 of R. S. 0. c. 108 is as follows :— "30. Where any laud or rent is vested in a trustee upon any ex- press trust, the right of the cestui que trust, or any person claiming through him to bring a suit against the trustee or any person claim- ing through him, to recover such land or rent shall be deemed to have iirst accrutsd, according to the meaning of this Act, at and not before the time at v hich such land or rent has been conveyed to a purchaser for valuable consideration, and then shall be deemed to liave accrued only as against such purchaser, and any person claim- ing through him." And it has been said thab this enactment is in effect extended to personalty by the present sub-section (per Kay, J., Banner v. Ber- ridf/e, 18 Ch. D. 262. (3) An estate for life without impeachment of waste shall not confer, or be deemed to have conferred, upon the tenant for life any legal right to commit waste of the description known as equitable waste, unless an intention to confer such right shall expressly appear by the instrument creating such estate. (Jud. Act of 1873, .s. 25, sub-s. 3.) For the difference between legal and equitable waste see the notes to Oarth v. Cotton, 1 W. & T. Lead Cas., 75' (5th Ki\.); Sea(jram v. Knii/ht, L. R. 2 Ch. 628. A tenant for life without impeachment of waste, is not permitted to make an excessive use of his legal power as such, by cutting down ornamental trees, defacing the mansion- house, &c. See also Seton on Decrees (4th Ed. / 190. (4) There shall not, after the commencement of this Act, be any merger by operation of law only, of any estate the benencial interest in which would not be deemed to be merged or extinguished in Equity, {/d. sub-s. 4.) RULES OF LAW. 25 Suits for poMMessiou of land by mortgagors. Merger is where a greater estate and a leas coincide and meet in Sec. 17. one and the same person in the same right without any intermediate sub-ss. 4-6. estate ; in which case the less is immediately annihilated, or "merged" in the greater ; as, if the fee comes to a tenant for years or life, the the particular estates are merged in the fee ; but, in Efjuity, if the merger which would take place at Law would occaaicm prejudice to a party having a previous equitable interest in the estate, such interest is not deemed to be merged. By R. 8. ( >. c. W), ss. 1 , '2, a mortgagee may take a release of the ecjuity of redemption without merging nis debt as against any other mortgagee or person having a charge on the property. The cases on the construction of this enactment will be found in Robinson & Joseph's Digest, 2312, et seq. See also 2246 et seq. Where C. an administrator granted an underlease for a term of years of land held by him as administrator, ami shortly afterward the underlessee assigned the land to C. for thd residue of the term, it was held that there was in Equity no merger of tho term (Cham- brrs V, Kingham, 10 C'h. D. 743 ; see also Hyde v. Warden, 3 Ex. D. 72). (5) A mortgagor, entitled for the time being to the possession or receipt of the rents and profits of any land as to which no notice of his intention to take possession or to enter into the receipts of the rents and profits thereof shall have been given by the mortgagee, may sue for such pos- session, or sue or distrain for the recovery of such rents or profits, or to prevent or recover damages in respect of any trespass or otiicr wrong relative thereto, in his own name onl}', unless the cause of action arises upon a lease or other con- tract made by him jointly with any other jjerson, {a) and in that case he ma)- sue or distrain jointly with such otb r person. (See lb. sub-s. 5.) (ft) Up to this point .uis sub-section corresponds with the ICnglish ; what follows is not in the English sub-section. Tn cases under tiiis sub-aoction the mortgagor may sometimes have to make the mort- gagee a party ; but "unless there is a probability that the relief for whicli the mortgagor suca will injuriously aft'cot the intcre-st of the mortgagee, tlie mortgagee ouL;ht not to be \^r mglit liefon.- the Court on a mere suggestion of a possibility tlta' tn- may be prejudiced" (Faircluiujh v. Marslnitl, 4 Ex. 1). 37 and 4;»). A mortgage having been assigned, the assignee served notice on the tenants to pay him rent. A judgment (Meditor of the mortgagor ol)taiued an ordtr on the tenants to pay. Tbe rents due at the date of the assignment were nt)t therel)y assigiud to the transferee, but were assigned to liim by the mortgagiH! after the gainishee order. Held, tliat untler this sub-secti(Ui the rents attachetl were dents due to the mortgagor {Patermn v. (flieWij, 10 L. R. Ir. 304). (6) In case of an assignment of a debt or other chose A»«'Knment in action, {a) if the debtor, trustee, or other person tiioses in liable in respect of such debt or chose in action ""''""■ i^'t km n 26 ONTARIO JUDICATURE ACT, 1881. .1 Beo. 17. 8Ub-B. 6. I ' Assignment of debts. shall have had notice that such assignment is disputed by the assignor, or any one claiming under him, or of any other opposing or conflict- ing claims to such debt or chose in action, he shall be entitled, if he think fit, to call upon the several persons making claim thereto to inter- plead concerning the same ; or he may, if he think fit, pay the same into the High Court of Justice under and in conformity with the provi- sions of [law] for the relief of trustees. (See lb, sub-s. 6 ; R, S. 0. c. ii6, s. 6, et seq.\ Imp. Act, lo & II Vict., c. 96; 12 & 13 Vict, c 74.) (a) What follows corresponds with the latter part of sub-section 6 of the English Act. 'I"he first part of that sub-section makes choses in action assignable, and differs a little from the Ontario enactments on the same subject, which continue to be the lav ... this Province. The English enactment is as follows : "Any absolute assignment, by writing under the hand of the assignor (not purporting to be by way of charge only), of any debt or other legal chose in action, of which express notice in writing shall have been given to the debtor, trustee, or other person from whom the assignor would have been entitled to receive or claim such debt or chose ir action, shall be, and be deemed to have been, effectual in law (subject to all equities which would have been entitled to priority over tlie right of the assignee if this Act had not passed), to p? s and transfer the legivl right to such debt • chose in action from the date of such notice, and all legal and oth r remedies for the same, and the power to give a good discharge for the same, without the concurrence of the assignor ; provided always that if," &o., as above, except that the word "act' is used instead of the word " law." Under this i)rovision there have been the following decisions : The enactment does not make anything an assignment which was not theretofore an assignment either at Law or in Equity (Schroeder v. The Central Bank, 24 W. R., 710; Be Haycocks Policy, 1 Ch. D. (Jll ; In re Sutton's Trusts, 12 Ch. D. 175), nor does this Act affect tlie rule that the assignee of a chose in action takes it subject to all equities {West of Emjland Banking Co. v Batcheior, W. N., 1882, 11). A cheque is a mere order to pay and a revocable request, and does not purport to be an absolute assignment (Schroeder v. City Bank, supra). The ivssignment of money not yet due may be an absolute assign- ment {Brice v. Bannister, 3 Q. B. D., 569). The assignment of a mortgage debt by way of mortgage, is not " au absolute assignment .iot purporting to be by way of charge," and the assignee cannot, under the English enactment, : je on it (Nnlional Provincial, Bank of England v. Harle, (> Q. B. D., 626). In fjcc V. Maijrath, 10 L. R. Ir. 45, the payee of a promissory note not negotiable and not then payable endorsed it as follows: "I endorse the within promissory note for £100 to my sister L.,"and delivered it to L, There was no consideration for the cndor*ement ASSIGNMENT OK CHOSES IN ACTION. 37 and delivery, but it was found as a fact that the intention was to 8eo. 17. vest in L. the beneficial interest. The payee died before the note sub-a. 6 was due, and bequeathed to one of the makers all moneys he should die possessed of, and appointed the legatee executor Express notice in writing of the endorsement was given to the maker after the payee's death and before action. Held, that as the appointment of the maker of the note, executor of the payee, extinguished the debt {)rior to service if notice of the endorsement, there had been no egal transfer of the debt to L. within this sub-section so as to enable her to bring an action thereon. Where the statement of claim alleged that the plaintiff sued as assignee by je';t to any defence, or set-ofF, in respect of the whole or any part of such claim as existed at the time of, or before notice of the assignment to the debtor or other person sought to be made liable, in the same manner and to the same extent as such defence would be effectual, in case there had been no assignment thereof ; and such defence or set-oflf shall apply as between the debtor and any assignee of such debt or chose in action. "11. In cose of any assignment in writing as aforesaid, and noticd thereof given to the debtor or other person liable in respect of a c.honi' in action, arising out of contract, the assignee shall have, hold and enjoy the same, free from any claims, defences, or ecpiities which might arise after such notice as against his assignor. " 12. The six next preceding sections of this Act shall not be construed to apply to bills of exchange ur promissory notes." StipuUtions n jt of the eusence of contracts. llt^ (/) Stipulations in contracts, as to time or otherwise which would not before the passing of this Act, have been dccmetl to be or to have become of the essence of such contracts in a Court of Eciuity, shall receive in all Courts the same construction and effect as they would have hitherto received in Equity. (Jud. Act of 1873, s. 25, sub-s. 7.) This Hub-stction has no application in an action commenced before the Act came into ojieration (Nottle v. Edwarihn, .") ( 'li. I). .S7S). Time is not the essence of a contract in Ktpiity except in cases of express stipulation (Oakdcn v. I'ikc, .'14 L. J. Chy. 020) or by neces- sary implication (I'ltrkcr v. Thotnlii, 10 Heav. 5!)). The stipulati. 1. MANDAMUS — INJUNCTION, 29 v. 2") (8) A mandamus or an injunction may be granted, ^°' ^"^^ or a receiver appointed, by an interlocutory order of the Court, in all cases in which it shall appear J},j"^c"oni to the Court to be just or convenient that such *".'* •"«- order should be made ; and £:ny such order may be made either unconditionally, or upon such terms and conditions :is the Court shall think just ; and if an injunction is asked, cither before, or at or after the hearing of any cause or matter, to prevent any threatened or apprehended waste or trespass, such injunction may be granted, if the Court shall think fit, wheth'^'- the oerson against whom such injunction is sought is or is not in possession under any claim of title or otherwise, or (if out of possession) does or does not claim a right to do the act sought to be re- strained under any colour of title ; and whether the estates claimed by both or by either of the parties are legal or equitable. (Jud. Act 1873,3. 25, sub-s. 8 ; See R. S. O. c. 40, s. 39 ; c. 52.) Identical with the English sub-section referred to. Where an injunction or receiver is a substantial object of the . action, the writ Si'ould be indorsed with a claim for that relief (Col- bourne v. Culhourne, 1 Oh. D. 690), but may be had though not so . claimed {Norton v. Gooer, W. N. 1877, 206). An " interlocutory order " means not merely an order made be- . tween writ and final judgment, but an order other than final judg- , ment whether before or after final judgment (Svdth v. Cotvell, 6 Q. B. D. 75. As to the practice on such application see notes to Rule 399. The meaning of the words "just and convenient " has been con- siderably discussed. An injunction may be granted where the Court thinks that it is just Srope of and convenient ( 77h>/-%'« Cntlle Food Conpauji v. Masmm, 6 Ch. D. ^"'^o'"„-,^*g .Wi ; Hinriclifi V. Bcrttde>t, W. N. I87S, 11 ; ISdxhy v. E(inte7-hrook, l^^,J^^' :i (I p. D. 339 ; Ifr Vamhrian Mln'iiy Co., 29 W. II. 881), and the words of the section rather enlarge than diminish the arm of the Court in respect of injunction (per Fry, J., in Thomas v. WUUntns, 43 L. T. 94 ; 49 L. .1. Chy. 605). But it is with regard to settled l(!gal reasons or princijdes that the Court will decide what is just and cimvenient {lieddoiv v. Bfddow, 9 Ch. D. 89 ; Shaw v. E. of JerHCij, 4 ( '. P. D. 359 ; Gaskin v. Ballx. 13 Ch. D. 324 ; Fletcher v. Jfoijern, 27 VV. It. 97 ; Atilatt v. Corporation of Southaiujiton, 16 Ch. D. 143) ; and this sub-section does not in the least alter the principles upon which the Court should act (Day v. Browtirtijij, 10 Ch. D. 294), and does not empower the Court to grant an injunction in a case where before the Act the ^jarty applying would have had no remedy either at Law or in m -,,1 1 '■i; 80 ONTARIO JUDICATURE ACT, 1881. Sao- 17. Equity (N. London By. Co. v. Great Northern Ry, Co., 31 W. R. sub 8. 8. 490 ; 48 L. T. 695 ; 62 L. J. Q. B. 380 ; W. N. 1883, 33 ; Banner v. G. W. By. 24 Ch. D. 1. See also Bobinson v. Pickering, 16 Ch. D, 660. No Court will issue an injunution where if the thing sought to be restrained is allowed to go on, no legal injury is done to any one (per Brett, L, J, ; N. London By. Co. v. G. K By. Co., 48 L. T. 696). But tiie Court has jurisdiction to grant an injunction to give effect to a legal right, and the only limit to such jurisdiction then is, that it shall be just and convenient to make the order (Corporation of Cork v. Booney, 7 L. R. Ir. 191). To use the words of Jessel, M. R., in Adatt v. The Corporation of South- ampton (tupra) at p. 148: "Of course the words 'just and con- venient' do not mean that the Court is to grant an injunction simply because the Court thinks it convenient. It means that the Court should grant an injunction for the protection of rights, or for the prevention of injury according to legal principles. The mo- ment it is found that there is a legal principle, that a man is about to suffer serious in* -y and that there is no pretence for inflicting that injury upon L ., tbe Court ought to interfere." The granting of an injunction to restrain the doing of a particular thing is an act dependent on the discretion of the Court and in exercising its discretion the Court will consider amongst other things whether the Act complained of will prwluce injury to the applicant, whether the injury can be atoned for by damages, and whetner the damages must be sought in successive suits or may be obtained once for ah (Doherty v. Allman, 3 App. Cas. 709). This sub-section seems to have enlarged the right to a receiver. In Amjlo- Italian Bank v. Danes, 9 Ch. D., at p. 293, Cotton, L. J., said, " Under that (the present) sul)-section the Court may and does grant receivers where it never could have done so before. Thus, for instance, it has the i)()Wfr to grant a receiver under that section where a jylaintiff' lias himself the power of obtaining possession at law." See also Tillvt v. Sixon, 49 L T. r)9H ; 25 V\\. I). 238; The AmpthUI. "> W 1). 224, and (iawthoijic v. ilawthorpe (W. N., 1878, 91 1, where Jessel, M. K., coiiHitlered that there was no limit tn the power of the Court to grant a receiver on motion except that it was only t(t be exerciseil where it appeared just and convenient. (See, however, Haher,thon v. OUl, W. N., 1875, 231, where (^uain, .1., indicated an opinion that the wonls "just and convenient" were to l>e interpreted by the old jiraetict:. ) Maiidainux. Mamlamui. Th«> jurisdictiMsi as to mandanius liefore this Act included the old prerogative writ .f mniidamus, and the further juriwlietion set forth in U. S. (). c. 52, which embodied Con. Sut. V. C. cc. 23 ami 28, and such parts of 35 \'iot. c. 14. as related to this subject. In 'ngland it has been held that the )rerogative writ of man- ilamii 1 IS siill only (.ranted on application to the Queen's Bench Divisior {5(}) ; and to apply their funds in pay- ment of debentures ( Webb v. Commixslonera of Heme Bay, L. R. i> Q. B. 642) ; to a railway company, compelling them to give a notice to treat and proceed with the purchase of lands as to which they have given notice under this Act of an intention to take (Monjan v. Metropolitan Railway Co., L. "\ 3 P. C. 553, 4 C. P. 97 ; see also 2'_i/.sort V. Mayor of London, L. K. 7 C. P. 18) ; and to issue a pre- cept for the assessment of compensation after a notice to treat had been given {Fotherby v. Metropolitan Railway Co., 1,. 11. C. P. 188 ; Guest V. Poole and BourneinniUh Ry. Co., L. R. 5 ('. P. 553). See as to the discretion of the ('ourt, Nirholl v. Allen, 1 B. & S. 916, 934. The present enactment, goes further, however, than tlie pre- vious statutes, and enacts that a mandamus may be granted " by an interlocutory order of the Court in all cases in which it shall appear to the Court to be just or convenient that sucli order should be made." Where a peremptory mandamus is granteil the decision is subject to review (Retj. v. Church Wardens of All Saintu', 1 App. Cas. (>ll.) A mandamus will not be granted against a public body when the performance of the tluty sought to ))e enforced is iniiios- sible by reason of want of funds (Re Bristol and Somerset A'//., 3 y. B. D. 10. See Atfy. Gen. v. Dorkimj, 2(K,'h. \), 595) Althlmgh the ('ourt or a .fudge has power to grant a mandamus on an interlo- cutory application, it mIU not be , Loundes v. Bettle, 33 L. J. Ch. 451 ; 10 Jur. N. S. 226 ; Stanford v. Harls/on", L. R. 9 ('h. 16), But the Canadian Legislature long since dealt with this dilliculty by enacting (20 Vict. c. 56, s. 4 ; Con. Stat. U. (J. c. 12, s. «-;J 32 ONTARIO JUDICATURE ACT, 1881, Sec 17. 27 ; R. S. O. c. 40) that " the Court may grant an injunction to stay sub 8. 8. waste in a proper case notwithstanding that the party in possession claims by an adverse legal title." The enactment in the Judicature Injunoti.ms, ^^t is to the same effect. R. 8. O. c. 40, s. 40, is as follows : ' 40. In all cases in which the Court has jurisdiction to enter* Danmgi-8 may lie awarded. Interlonii- tory injuiK tioiis. tain an application for an injunction against a breach of any cove- nant, contract or agreement or against the commission or continuance of any wrongful act, or for the specific performance of any covenant contract or agreement, the Court, if it thinks (it, may award damages to the party injured either in addition to or in substitution for such injunction or specific performance, and such damages may be iiscer- tained in such manner as the Court may direct, or the Court may grant such other relief as it may de. 146.) The office of an interlocutory injunction is simply to retain •matters in statu quo till the trial {Ei-ie «fc Niajfura Ry. Co. v. O. W. Rij. Co., 21 Or. 171) ; and the Court will not determine legal rights on such an interlocutory application (G. T. Bi/. Co. v. Credit Valley Rij. Co., 26 Gr. 572). See also Lybbe v. Hart", W. N., 1883, 127"; and Atti'nhorough v. London, .C-c, Telephone Co., W. N., 1884, 2, where the Court declined to consider the questions involved till the hearing. The Court will not by an interlocutory order interfere on behalf of one party in a way which might injure the other in case he should succeed [Hill v. Kirkwood, 28 W. R. 358, 42 L. T. 105; Emns v. Putcston, W N., 1880, 127). A pla'ntiir was held not entitled to have matters kept in statu quo by an injunction, not merely until the trial, but until the case could l)e heard by the Court of Appeal, where the decisions in Courts of first instance wore against the plaintiff and t/nerefore unless time was given to take the case to the Court of Appeal he would be without substantial relit i" ( Wyld v. McMaster, li» C. L. J. 351). The plaintiff must shew upon his own material a prima facie right to the injunction, otherwise it will not be granted however much the balance of convenience may be in favor of granting it (Socidti Anoni/me, d:c., v. Tilijhnuin, kc, 25 Ch. D. 1. The Court on an interlocutory application for an injunction should consider the balance of convenience, and if on the one hand irrepar- I' INJUNCTIONS. 33 able injury may be caused by withholding the injunction, while on Sec 17. the other hand any injury occasioned by tne injunction may })e com- »ul>-s. 8. peiisiited for by damages, the injunction will be granted, (Corporation i,^uucMon9. of Corf: V. Roomy, 7 L. R. Ir. 191 ; see also Atttf. Gen. v. Dor/cituj, •j(» Ch. D. o95 ; Bonner v. O. W. Rif. Co. 24 Ch. D. 10 ; and J/a.s- .■i'lii V. liraml Junction Ry. Co., 26 Gr. note p. 289,) but an inter- locutory injunction ought to be conditional upon an undertaking as to ilainages, (Ora/uiin v. Cdnipbell, 7 Ch. D. 491, and Corp. of Cork v. Roomy, supra.) The principles on which the Court ought to act in determining rntetit wliether to grant an interlocutory injunction to restrain an alleged •:u8e8. infringement of a patent, or only to require the defendant to keep an account, were discussed in Plimpton v. Spiller, 4 C!h. D. 286. The Court may interfere by maudatory injunction «)n an inter- locutory application, but the right must be very clear indeed, ( Toronto Brewing ami Malting Co. v. Blake, 2 Ont. R. 17."> ; Bonner V. G. W^. Ry- C'o.,24Ch. D. 10.) A mandatory injunction to pull down buildings will not be granted upon an interlocutory applica- tion [Johnntone v. Royal Courtti of Jmtice, \V. N. 1883, 5). The following are further decisions since the Judicature Act, KxiiiuijleH illustrating the principles upon which the Courts act with respect to j^j^Act injunctions : — .\ny injunction which can be granteil by interlocutory order, can n fortiori be granted at the trial, {BcdUow v. BkIiIow, 9 (Jh. D. 9.3.) Mandatory iujuiicticms may be granted as fcjrnierly (SeeiSY/rZ/ry v. h'iu:ion, 28 W. K. 7.")2 ; Miillin.i v. HonwU, W Ch. D. 763 ; Smith v. Smith, L. R. 20 K(i. 504 ; GnHkiu v. Balln, 13 Ch. D. .324), l)ut an injunction will not be granted where the proper remedy is a preroga- tive writ of mandamus (Glcunop v. Hoiton Loc. Board, 12 Ch. D. 1(12; Attorney-Gen. \. Dorkiny, 20 Ch. 1). o9.")). The (.'ourt has no jurisdiction to jireveiita foreign sox'oruign from renniving his property in tliis country, thougli it be an article maiie in iufriiigoment of a patent ; and a foreign sovereign who submits to be made a defendant in an action for the purpose of empowering tlie ( 'ourt to make an order does not thei eby part with any of his rijihts ( i'avd.sscitr v. Kriipp, 9 Cli. D. 3.")1.) In the absence of any .siilHcient eijuity to justify it the C/'ourt will not restrain bj' injunc- tion a plaintitf from proceeding in a foreign Court. Mere har-lship or iiiconvt'oiunce will not be sutiicient reason, (Fletcher v. Rodyern, 27 W. R. 97), but where a foreigner has ai)peared in an Kngiish Court the Court has a discretion to restrain lum from litigating the same .-iulijuct matter in his own country (Dawkin.i v. Simonetti, 29 W. R. 228). I'roperty which is the subject of an action may be preserved under Rule .398, by means of injunction, (Strel/ey v. Pearson, 43 L. T. loii.) Injunctions have been granted restraining th'.; cc.mmittee of a club from acting improperly in expelling a member (Fi.sher v. Keane, 11 Ch. D. 353; Laljcirhere v. Earl of IV/iarncliJ'e, 13 Ch. D. 34'j ; sec also Dawkin.i v, Antrolms, 17 Ch. D. 61."); Fouler v. Harrison, W. N. 1881, 171); restraining the publication of libels injuriously art'ecting property or trade ( Thorley Cattle Food Co. v. Masaam, 14 Cii. I). 763; Sax'by v. Eauterhrook,' H C. P. I). 339), or tending to injure a friendly society or a joint stock company (Hill v. tiart Daries, 31 W. R. 22 ; 47 L. T. 82). Though the jurisdiction in the case of such libels is clear, even on an interlocutory application, the 3 %k •ftitB M 91 v' III i^ 34 Sec. 17. NUb-H. I*. IlljniR'tiollH ONTAKU) .irDICATLKE ACT, iJSHl. Court only actH in a strong cuhc and in geiierai not unlcHH satiHlied tlittt tilt) Htnteiiients fompl-jned of are untrue (Qmtrlz Hill Hold Miuiiii) ('(I. V. liiall, 20 Cli. J). oOl). See aim) Hinrkha v. /itrmlix, W. n! 1878, 11. The Court lias juriatliction to restrain the eomniissiou of acts which if oonunittetl wouhl be a eonteuijit of Court, r. ij., the threatened publication of a statement of claim with oomments, as calculated to prevent a fair trial {KitntI v. Sharp, 31 W. W. 2L>7 ; 48 L. T. 04.) An injunction will be yranteil to restrain the exportation of goods under a trade mark likely to deceive a foreign though not a lu me purchaser (Orr Eivln;/ v. Johiixtoii, 13 f'h. D. 434). Where an injunc^tion was applied for to restrain a landlord from exercising his legal right of tlistress, until the determination of an action lirought by the tenants against the landlord, to try his right to the rent, the injunction was granted for a fortnight, and continued only if the rent should in the meantime be paid into Court {Shaw v. Earl i>fjirx(>i, 4 C. P. D. 120. 3r) L. T. 22(5), the Court reatrained all persons fioiii dealing with shares in a ship forming part of the estate of a deceased person. (See also Jioi/lc v. Jittttm lAantwU C'oUiiri/ Co., 2 Ch. I). 72tj). In I'tlafi ,f Cu. v. /iraltaimi- Co. (4() L. .1.', C. 1'. 41.")), which was an action against a jeweller for the return of goods (lei)osited with him, the detendant was ordertd to deliver up the goods to an ofhcer of the (_'ourt to abide the event of the action. Ill lib ir'ttt v. J)tiirHi,ii (W. N. 187"), 202), an action of ejectment against a landlord, the plaiiititl' was restrained from issuing writs against the tenants. In Draki.i J'nliiit Concrvlf v. Jhnnr {ihitl 230) an order was granted restraining the defendant from pulling down partially erecteil houses In Ferinr landlord. In Loniluii anil Countij Baiikinij (Jo. v. Liwia, 21 Ch. D. 4;K(, an eijuitable mortgagee who had commenced an action fop foreidosure oiitained an injunction restraining the defcmlant from parting with the legal estate. Ill Anon (\V. N., I87*>. 21) a defendant was restrained from part- ing with a bill of exchange (see also An-tn, lldd 37). An injunction will not be granted at the suit of a landlord or reversioner to restrain a trespass or nuisance not of a permanent character or not actually injuring the reversion [Coujier v. Cnihtrci , 47 L. T. .'); r)l L. .1. Ch. 18'.».) \i\ Anon \\ . N. 187(3, 38 an ^x^^ar/r application for an injunction re- straining a man from tre-suassing with a horse and cart was refused, the Judge remarking that "injunctions are not ordinarily granted for mere trespass unless serious injury if threatened to the i)roperty. INJUNCTIONS. 36 On a flush iii>plioutiuii Iteiiig mari' .liistices of the Peace un an irregular notice under a iJrainage Act, was granted as shorter and cheaper than a prohibition (//tdli y V. J{iih.i, 13 (.'h. I)- 498) ; l)ut this was because the Court was seised (if the case tiliuiulv. Where it is a mere case of prohibition and the Court is not called upon to decide the (question on other grounds, lietwcun the same jiarties, there is no reason for ciianging the pn)- cLL'diug from prohil)ition to injunction ('Staniiitrd v. Vii^tni of St. <;U,s, '10 Ih. \). 1%, 1!>7). It was lield that an action for an injunction may be commenced against a Local Boanl without the month's notice recjuired by tlie I'uldic Health Act, in all cases where before tiie Juilicature Acts a bill would have been sustainetl in Chancery for an injunction ; and idtliiiiigli damages are claimed by wa}' of suiisidary relief (Fluwcr v. /,(/(/• Luiton Local lionnl, o Ch. i). WAl.) Where if the defendant .suet ec leil in the House of Lonls her success would be useless unless the fund was protected in the meantime, it was held that the injunc- tion ought to lie continued pending the appeal {J'olini v. liriiij ; Sturlit V. Fmria, 12 Ch. I). -WS.) heiay is, in general, no i)ar to an injunction in aid of a legal right, iinle.ss the legal remedy is barred by the lapst; of time (Fullirniij v. FnlhriHiil, 47 i-.. •'. Ch. 4'»U) ; but where buildings (which trans- urcssed the provisions of restrictive covenants) had been allowed to leinain for live years without complaint an injunction was refused [diiskhi V. liitlU, i;U,'h. 1>. '.VIA). An order having been maile restraining the defendant finm pnj- iciiling with certain buihlings, he ap[tealed, ottering an undertaking tip aliide liy any oiNler the Court might make at the hearing as to' |pulling down or altering any buildings erected by him ; the Court 111 Ainieal, being M. 541 ; Re Shaw, referred to in 11 Sim. 182-195 Jur. 56). Under t.iactments in England allowing an application by a mother it was held that a married woman may petition in her own name without naming a next friend (Re Groom, 7 Hare, 83); orin/o/'//i« paupfris (Ec parte Haivk«will, 3 D. M. & (t. 116); and that the order may be made e.c parte, if the necessity of the case reijuires it (Re Taijlor, 11 Sim. 178). Under the Judicature Act, all the Divisions of the High Court Uiulpr Judi- have now jurisdiction with regard to the care and custody of infants ; cature Act. and, in the exercise of that jurisdiction, the rules of equity are to prevail. Before the jurisdiction of the Court to deprive a father of the guardianship of his children can b3 called into action, the Court must be satisfied that he has so conducted himself or placed himself in such a position as to render it not merely better for the children, })ut essential to their safety or welfare in some very serious and im- portant respect, that the father's ordinary rights should be inter- fered with. (See Re W supra.) The affidavits of the mother and others, in answer to a rule for a haheaa corpus by a father to remove his child (a boy of nine years) from the custody of the child's maternal grandfather, disclosing facts which shewed the applicant to be a person of intemperate and vicious life, and in the habit of using gross and disgusting language, as well as personal violence to his wife, — the Court declined to in- Winscoin, '_ H. & ; Re Hallidaij, 17 40 ONTARIO JUDICATURE ACT, 1881. Sec 17. sub-s, 9. Infants R. S. O., c. 132, ss. 9 iSi 10. i v terfere, the present custody of the child being unobjectionable {In Be Goldmoorthy, 2 Q. B. D. 75). So the Court, in the interest of the children, declined to interfere where it contended that there had been a gross breach of marital duty on the hu8l)and's part, he not desiring or intending that his wife should live with him, or if she insisted on doing so he declined to meet or speak to her except at meals, and when the interests of the children required (Re Elderton, 25 Ch. D. 220). The law as to the custody of infants under the law in England was much discussed in two cases recently decided (Re Agar Ellis, 10 Ch. D. 49 ; and Re Besant, 1 1 Ch. D. 508). See also Seton on Decrees, 750, and Re Agar Ellis (a subsequent application), 24 Ch. D. 317. By R. S. 0. c. 132, s. 9, p. 1187, "any of the Superior Courts of Law or Kquity or any Judge of any of the said Courts, or a Judge of the Surrogate Court, upon hearing the }ietition of the mother of a minor, whose father is dead, may appoint her to be guardian of the person of the minor, notwithstanding any testamentary provision to the contrary by the father, or any appointnicut of another per- son as guardian by the father, if such appointment of the mothei appears co the Court or Judge to be just and proper ; and such Court or Judge may also make an order for the maintenance of the minor by payment, out of any estate to which the minor is entitled, of such sum or sums of money, from time to time, as, according to the value of the estate, S/Uch Court or Judge thinks just and reasonable. " " 10. Any of the said Cou s shall have power to give eflfect to a testamentary appointment r a guardian of the person of her infant children made by the mother of such children, upon petition of the guardian so appointed, notwithstanding a previous testamentary appointment by the father of such infants, wherever, owing to a change of circumstances or other cause, it may seem to sucli Court advisable in the interest of such infants so to do, and tlie (.'ourt may make an order for the maintenance of the infants as in the last preceding section mentioned." "13. Nothing herein contained shall be construed to change the law as to the authority of the fatlier in respect of the religious faith in which a child is to be educated." A Protestant on his marriage with a Roman Catholic agreed that their childi'en should be Ijrought up as Roman Catholics, but a son should when old enough be permitted to change his religion. A boy was born, Ijaptised and brought up a Roman Catholic. The father died intestate only expressing a vvish that his >ion should go to an English Protestant School. It was held that having regard to \A\?, indication of intention on the father's part and the present and future benelit of the son, his mother ought to be appointed his guar- dian and he be brought up as a Roman Catholic. (Be Clarke, W. N. 1882, 135 ; 31 W. R. 37 ; 47 L. T. 84.) The Court has jurisdiction to summarily order the personal attendance before it any persons who are supposed to be in a posi- tion to give information as to the place of concealment of wards of Court. {Rosenberg v. Undo, 48 L. T. 478.) For the cases in Ontario on the subject of the custody of infants, see Rob. & Jos. Dig. p. 1737, 4522 and Re Keith, 7 Pr. R. 138 ; Re Brandon, 7 Pr. R. 347 ; Re Smith, 8 Pr. H. 23 ; Re Scott, Ih. 58 ; Re Ferguson, lb. 556 and Re Mtirdoch, 9 Pr. R. 132. RULES OF EQUITY. 41 (lo) Generally in all matters not herein-before par- f^^'J'l^ ticularly mentioned, in which there is any conflict or variance between the Rules of Equity and the flfct" not*^°"* Rules of the Common Law with reference to the '''"^'n«'"»**"^- same matter, the Rules of Equity shall prevail. This sub-aection relates to matters of substantive law not mere practice {Friendly v. Ccrler, 9 Pr. R. 41). As to matters of prac- tice see sec. 52, The following decisions illustrate this sub-section : — The rule in all the Divisions is now, under this sub-section, that an order for changing a solicitor shall be made without any provision as to payment of the solicitor's costs (Grant v. Holland, 3 C. P. D. 180 ; bufi see note to sec. 52). See as to privileged documents, Bnstros v. White, I Q. B. D. 423 ; as to old Chancery rules, Lascelles v. Butt, 2 Ch. D. 588 ; Job v. Job, 6 Ch. D. 562 ; as to answering ^criminating interrogatories, Atherley v. Harvpij, 2 Q. B. D. 524 ; as to dismissing an action, La Orange v. McAndrew, 4 Q. B. D. 210 ; as to joint and several liability of partners in respect of contracts {Kendall v. Haviiltoh, 4 App. Cas. 504). Where the terras of a bill of sale are such as to bind after acquired goods in equity, the title of the claimant must now prevail as against the execution creditor, under this sub-section. (Per Lush, J., W. .N. 1875, 203 ; i>er Archibald, J., W. N. 1876, 64.) Where assets have come into the possession of the executor and are afterwards lost to the estate, the rule in all Courts now is, that the executor cannot be charged without some wilful default (Job v. Job, 6 Ch. D. 562 ; and see Barber v. Mackrell, 12 Ch. D. 534). Since the Judicature Act a tenant in possession under an agree- ment fov a lease has no longer two estates, one a legal tenancy from year to y>..ir and the other an equitable tenancy under the agreement. There is ^nly one Court and the Rule of Equity prevails, viz. : that the tenant is in the same position as if he were lessee un\ The English Act has the additional word "other" here. With the exceptions above mentioned, the I8th section nupra corresponds with the first part of the English section 26. SITTINGS OF COURT.S. 43 19. Subject to Rules of Court, the High Court of Sees 19-22. Justice and the Court of Appeal, and the Judges sitting* of thereof respectively, or any such commissioners as^"""''- aforesaid shall have power to sit and act, at any time and at any place, for the transaction of any part of the business of such Courts respectively, or of such Judges or commissioners, cir for the discharge of any duty which by any [Statute], or otherwise, is required to be discharged during or after term. {Sec Jud. Act of 1873, s. 26, second part; R. S O. c. 41, s. 12; Order S7,2^ost) For "Statute" the English sectiim has •' Act of Parliament," but is otherwise the same. 20. The Lieutenant-Governor in Council may vacations. from time to time, upon any report or recommenda- tion of the Council of Judges of the Supreme Court hereinafter mentioned, make, revoke, or modify, orders regulating the vacations to be observed by the High Court of Justice and the Court of Appeal, and in the offices of the said Courts respectively ; and any Order in Council made pursuant to this section shall, so long as it continues in force, be of the same effect as if it were contained in this Act ; and Rules of Court may be made for carrying the same into effect in the same manner as if such Order in Council were part of this Act. (S'^e Jud. Act of 1873, s. 27, first part ; Order S7iP0st.) In England it is Her Majesty in Council to whom this authority i.s given. 21. Provisions shall be made by Rule of Court for sittings in the hearing in Toronto, {a) during vacation, by Judges ^^*=''*"^"- of the High Court of Justice and the Court of Appeal respectively, of all such applications as may require to be immediately or promptly heard. {See Jud, Act of 1873, s, 28 ; Order i\yg, post. (a) The English section has here the words " London or Middle- sex," but is otherwise the same. 33. Commissions of assize or any other commis- commis- sions, either general or special, may be issued by the Assize' an* proper authority (a), assigning to the persons to be mutlon?"*' : m 44 ONTARIO JUDICATURE ACT, 1881. \ ,Seos.22, 23 therein named ('ft), the duty of trying and determining within anyplace or district specially fixed for that pur- pose by such commission, any causes or matters, or any questions or issues of fact or of law, or partly of fact and partly of law, in any cause or matter, depend- ing in the said High Court ; or the exercise of any civil or criminal jurisdiction capable of being exer- cised by the said High Court ; and any commission so issued shall be of the saine validity as if it were enacted in the body of this Act ; and any com- missioner or commissioners, shall, when engaged in the exercise of any jurisdiction so assigned to him or them, be deemed io constitute a Court of the said High Court of Justice. (See Jud. Act of 1873, sec. 29.) (a) The English enactment gives this authority expressly to Her Majesty. In Canada it has been questioned whether the authority belongs under the B. X. A. Act to the (lovernor-deneral or the Lieutenant-Governor ; the present section provides for tlie issuing " by the Tjroper authority." A commission in its ordinary form both constitutes the Court and names the Judges, while under the B. N. A. Act the creation of Courts belongs to the Province, and the appointment of Superior Court Judges belongs to the Dominion. (Seelieyina v. Amer, 42 U. C. Q. B. 391). (h) The English section limits the appi)iutmeuc to " any Judge or Judges of the High Court or other persons usually named in com- missions of assize." The Dominion (xovernment is understood to claim that a Provincial [..egislature has no authority to limit the class of persons from which Judges are to be selected. Rules of 23. All causes and matters in the High Court of vide'^for '.lis'- Justice, shall be distributed among the several Divi- tributioii ofgJQiig ^j^(\ Judges of the said High Court, in such manner as may from time to time be determined by any Rules of Court, or orders of transfer to be made under the authority of this Act. Every document by which any cause or matter shall be commenced in the said High Court shall be marked with the name of the Division (a) to which the same is assigned. (See Jud. Act of 1873, ss. 33 and 42.) (a) The Engl'dh section has here the additional words "or with the name of tne Judge," &c.; the 4'2nd section providing, that in the Chancery Division every cause or matter is to be marked with the name of one of the Judges at the discretion of the plaintiil" or petitioner. That practice has not been adopted in the present Act. DISTRIBUTION OF BUSINESS. 45 34. Subject to any Rules of Court and to the pro- Sees. 24, 25. visions of this Act and to the power of transfer, all Assignment causes and matters pending in the Court of Queen's uusine^to Bench at the commencement of this Act are hereby ['.'.^s^oVthe assigned to the Queen's Bench Division of the High "'a'' court. Court ; all causes and matters pending in the Court of Chancery at the commencement of this Act are hereby assigned to the Chancer^' Division ; and all causes and matters pending in the Court of Common Pleas at the commencement of this Act are assigned to the Common Pleas Division of the High Court. {See Jud. Act of 1873,3. 34). Besides a like provision for pending business, in l^nglaud, certain classes of cases are assigned to the exclusive jurisdiction of the Chancery Division ; and the other Divisions have still exclusive jurisdiction over such matters as previously were within the exclusive jurisdiction of the Courts whose names these Divisions now have. These arrangements are not meant to be permament, and are sub- ject to Kules of Court. 35. Subject as aforesaid, every cause or matter |>"*^'»»ents afterwards commenced in the said High Court of .ause com- Justice shall be assigned to one of the Divisions ofl',e''"attk|,j the said High Court, by marking the document by ^',i^}^jJ|^P^ which the same is commenced with the name of such to whicii ,-^. . . assigned. Division. In England, by the first part of section 11, of the Act of 1875, the plaintiff mjiy assign the case to any Division, subject to the power of the Court to afterwards transfer it to another Division. Under the present Act, following the statutory rule now in force with respect to the existing Courts, writs of summons in the Queen's Bench and Common Pleas Divisions are to be issued alternately between these two Divisions (Hule 21, pout), subject to the action being transferred afterwards, llule 392, et st^., post, {2) All interlocutory and other steps and proceedings in or before the said High Court in any cause or matter subsequent to the commencement there- of, shall be taken (subject to any Rules of Court and to the power of transfer) in the Division of the said High Court to which such cause or matter is for the time being attached. {See Juu. Act of 1875, s. II, sub-s. i). II ii \ Same as the English sub-section referred to. T 40 ONTARIO JUDICATUKK ACT, 1881, Bee- 26. Power (if truiDttfr •'t it. s. o. c. 41", ss. 2l■■^i M J56. Any cause or matter may at any time, and at any stage thereof, and either with or without applica- tion from any of the parties thereto, be transferred from one Divison or Judge of the High Court of Justice to any other Division or Judge thereof, by such authority and in sucn manner as Rules of Court may direct, (a) or as transfers might be made from one Court to another before the passing of this Act. (b) {See Jud. Act of 1873, s. 36; R. S. O. c. 49 ss. 21 — 29; 41 Vict. c. 8, s. 4, Ont.) {(i) Up to this point tlie section is ';he same in eflect as section 'M\ of Imp. Act of 1873. (b) The effect of the concluding words of this section is rendered somewhat obscure by Rule 392. In HiUiard v. Thurdon, 18 C. L. J. 180 ; 2 C. L. T. 201 and 285, it Wis doubted whether the only mode of transferring causes was not by the combined action of the Presi- dents of Divisions under liule 3i)2 ; and it was held that the power of transfer under U, S. 0. e. 49, ss. 21 — 29, and this section could only be exercised by a Judge, if at all, and that the Master in Chambers liad no such jurisdiction. The following enactments show the mode by which transfers were " made from one Court to another before the passing of this Act." R. S. O. c. 49 : "21. The Court of (Jhancery, in any suit or other proceeding instituted in that Court, shall have jurisdiction in all matters which would be cognizal)le in a Court of Law ; but in case, at any stage of a cause in Chancery, it ap^jears to the Court or a Judge thereof that the suit or proceeding may for any reason be more conveniently, expeditiously or inexpensively carried on or dealt with in a Court of Law, the Court of Cliancery or a Judge thereof may order the suit or proceeding to lie transferred to such one of the Courts of Common Law as the said (Jourt or Judge thinks proper ; and such order may be made by such Court or Judge sua aponte, or upon the application of either party to the Court or Judge on notice to the other parties interested, and may be made at any stage of the suit or proceeding ; and the Court or Judge may make any order as to costs which seems reasonable. "22. Where an order is made under the foregoing section the proper officer of the Court of Chancery shall annex together all the pleadings and papers filed with him, and transmit the same, together with the order of transference or a copy thereof, to such otiice of the Court of Common Law as the order directs. "23. If it appears to a Court of Common Law or a Judge thereof that any equitable question raised in any action or other proceeding at Law, cannot be dealt with by a Court of Law so as to do complete justice between the parties, or may for any other reason be more conveniently dealt with in Equity, the Court or Judge may order the action or proceeding to be transferred to the Court of Chancery ; and such order of transference may be made by the Court or Judge sua sponte, or upon the application of either party on notice to the other parties interested, and may be made at any stage of the action or other proceeding. KLECTION PKTITIONS. 47 "24. Where an order is made under the foregoing section, the Sees. 26-28- proper officer of the Court of ( Common Law shall annex together all pl'iadinga, and papers filed with him, and transmit the same, together with the order of transference or a copy thereof, to such officer of the Court of Chancery as the order directs." The Statute 41 Vict. c. 8, s. 4 (14 «), further provides that " the »i V ( . h, m. Chief Justices of the said Courts of Queen's Bench and Connnon ' <**"'^*- Pleas shall, on the first day in each Term and from time to time thereafter as occasion may require, meet together and exfiniine the list of motions, rules and other matters set down for argument, and direct the transfer of such and so many of the said motions, rules and other matters, from the one Court to the other, as shall as nearly as possible in their judgment etjualize the amount of busi- ness to be done by each of the said Courts ; and, after such transfer, the motions, rules and other matters so transferred shall be heard and disposed of by the Court to which the transfer is made, as if the said motions, rules and other matters so transferred had origi- nated in the Court to which the transfer is made ; and the judg- ments, orders and decrees so made by eitlier of the said Courts shall have the same force and effect as if made l)y the other of them." See Rule 393 post. Hot; IM'ti i of ^I'H for tioii tlllllS. ^l. The Judges to be pla'^cd on the ro^-a for the trial of election petitions f > . Ontario iu each year, under the provisions of "The Con'^''overted Elections Act of Ontario," shall be selected out of the Judges of the Supreme Court in such manner as may be pro- vided by any Rules of Court to be made for that pur- pose ; and in the meantime, and subject thci Jto. shall be selected as hitherto, that is to say : the members of the Court of Appeal and of the Queen's Bench, Chancery and Common Pleas Divisions aforesaid shall, on or before the third day of Michaelmas Term in every year, select, by a majority of votes of the mem- bers of such Court or Division, one of the Judges thereof: Provided that the Judges who at the com- mencement of this Act, shall be upon the rota for the trial of such petitions during t.ne then current year, shall continue upon such rota until the end of such year in the same manner as if this Act had not passed. {See Jud. Act of 1873, s. 38 ; R. S. O. c. 11, s. 33). The English enactment confines the rota Judges to the Queen's Bench, Common Pleas and Exchequer Divisions of the High Court. By the Controverted Elections Act of Ontario, chap. 33, the duty was imposed upon the Judges of the Courts of Appeal and Chancery in common with the Queen's Bench and Common Pleas. Uiisiiiess U) 38, Every action and proceeding in the High Court |^'[ jj^.'^J^^f'^'' of Justice, and all business arising out of the same, Judge as far except as hereinafter provided, shall, so far as is prac- i'fti.'ie!"^' 48 ONTARIO JUDICATURE ACT, 1881. Sec- 28. SUb-88. Single Judge II ticable and convenient, be heard, determined and dis- A.ct of c. 50, ss. 281, 282). 9 •] ' "posed of before a single Judge (a). (See Jud, 1876, s. 17, first part ; R. S. O. c. 39, ss. 20-26 (2) A Judge sitting -elsewhere than in a Divisional Court is to decide all questions coming properly before him, and is not to reserve any case, or any point in a case, for the consideration of a Divi- sional Court (b). (See Jud. Act of 1873 s. 46 ; Jud. Act of 1875, s. 22 ; Jud. Act of 1876, s. 17 ; R. Sup. C, 1875, Order 57 ; R. Sup. C, Dec. 1877, R. S. O. c. 50, s. 281.) (3) In all such cases any Judge sitting in Court shall be deemed to constitute a Court (c). (See Jud. Act of 1873, s. 39, last part ; R. S. O. c. 39. s. 21.) (a) This is the same in eflfeet as the enactment in the Imperial Statute, s. 17, referred to ; and is an extension of the authority previously possessed in. Ontario by a Judge of the Common Law Courts under the Administration of Justice Act, 1874 (R. S. 0. c. 50, s. 281). (b) A Judge in England had the power of reserving a case, or any point in a case, to be argued before a Divisional Court, until the Act of 1876, s. 17, the efiect of which Act and the rules made under it, Is to take away this power. In Chancery there had never been the Common Law pi-actice of a Judge reserving a case, or some point in it, for argument before himself and his co-Judges or any of them. The section in the present Act is in accordance with the probable intention of R. S. 0. c. 50. s. 281. In Benschor v. Coley, 52 L. J. Q. B. .398, it was held that not- withstanding the tirst clause of this section a Judge at Nini Prius may leave any party to move a Divisional Court for judgment, and that the words " so far as is practicable and convenient " above, should be interpreted to authorize that course. This decision would not seem to be applicable in Ontario as the Imp. Act contains no clause similar to sub-sec. (2) above. (c) The English enactment referred to is the same. (See 4 Ont. 280.) The ordinary purpose for which it is necessary or allowable to apply to the Divisional Court is for a new trial in cases where the action has been tried by a jury (See Rules 307 and 471 post). There is no appeal to a Divisional Court from a single Judge (except under Rule 510, from a judgment at the trial, or by consent under Rule 471) Be Oallerno, Orant v. McAlpine, 46 U. 0. Q. B. 379 ; Mc Tieman v. Fraser, 9 Pr. R. 246) ; and a hearing on Further Directions is not to be regarded as a continuation of the trial so as to enable an appeal to be made to the Divisional Court under Rule 510 ( Wamaley v. Smallwood, 20 C. L. J. 77). The appeal, if any, is to the Court of Appeal. (See s. 37.) Rule 471 regulates the business of Divisional Courts. £ DIVISIONAL COURTS. 49 39. All business which may from time to time be Sec 29. so ordered by Rules of Court shall be transacted and i>ivisionai disposed of by Divisonal Courts of the said High High court! Court of Justice, which shall for that purpose exercise all or any part of the jurisdiction of the said High Court. {2) Any number of such Divisional Courts may sit at the same time. (3) A Divisional Court of the said High Court of Justice shall be constituted by two or three, and no more, of the Judges thereof; and, except when through pressure of business or any other cause it may not conveniently be found prac- ticable, shall be composed of three such Judges. Where two Judges sit aaid diflfer, the old practice of the Court of Queen's Bench, that the junior Judge shall withdraw his judgment, is resorted to in the Queen's Bench Divisions in Knglatml {Atty. -Gen. V. Noyes, 44 L. T. 801, 8C9). {4) Every Judge of the said High Court shall be qualified and empowered to sit in any of such Divisional Courts. (5) But where the Divisional Court is constituted of two Judges only, such Court shall not hear or adjudicate upon any application against the judgment of either of such Judges. Where a motion against the judgment of the C. J. was made before a full Court of three Judges, but when judgment was delivered one of the puisne Judges was absent, being engaged iu another Court, on a motion for leave to appeal, the judgment of the C. J. and the remaining puisne Judge was held to be invalid, and there- fore there was no judgment which could be appealed against (Coch- rane V. Boucher, 19 C. L. J. 349 ; 3 0. L. T. 544; 8 Unt. App. 555, find see subsecjuent proceedings taken in consequence of this deci- sion, 3 C. L. T. 547, and 19 C. L. J. 402). (6) The President of every such Divisional Court of the High Court of Justice shall be the senior Judge of those present, according to the order of their precedence under this Act or otherwise. {See Jud. Act. of J873, s. 40; Jud. Act of 1876, s. 17.) Sub-section (5) has no corresponding provision in the English Act. In other respects the sef^^ion (29) corresponds in effect with Jud. 00 ONTARIO JUDICATURE ACT, 1881. Sees. 30, 31. Act of 1873, s. 40. Section 17 of the Jud. Act of 1876 provided that two Judges and no more should sit unless there were special reasons for having a larger number. This restriction to two has not been followed in the Ontario Act. The three Divisions of the High Court do not necessarily correspond with the Divisional Courts referred to in this section and elsewhere in the Act and Eules (see next two sections). For the business assigned to Divisional Courts (see Rule 471.) Constitution 3o. Divisional Courts shall, as far as may be found Courts. practicable and convenient, include one or more Judge or Judges attached to the particular Division of the said Court to which the cause or matter out of which such business arises has been assigned. {See Jud. Act of 1873, s. 41.) The English section enacts to the same eflfect. Judges to 31. Subject to any Rules of Court, it shall be the business oT duty of cvtry Judge of the High Court who shall not anyDivisioii. £qj. ^.j^^ time being be occupied in the transaction of any business specially assigned to him, or in the busi- ness of any other Divisional Court, to take part, if required, in the sittings of such i>'visional Courts as may from time to time be deemed necessary for the transaction of the business of any of the Divisions of the High Court ; (a) All such arrangements as may be necessary or proper for that purpose, or for constituting or holding any Divisional Courts of the said High Court of Justice for any other purpose authorized by this Act, and also for the proper transaction of that part of the business of the said Divisions respectively which ought to be transacted by one or more Judges not sitting in a Divisional Court, shall be made from time to time under the direc- tion and superintendence of the Judges of the said High Court : (b) And in case of difference among them, in such manner as a majority of the said Judges shall de- termine. (See Jud. Act of 1873, s. 41.) This section corresponds with the English enactment except that the latter is confined to the Queen's Bench, Common Pleas and PJx- chequer Divisions, omitting the Chancery Division ; and except also that in case of difference among the Judges, the English soctif)n re- Juires the concurrence of the Lord Chief Justice of England in the ecision of the majority in order to give it effect. . APPEALABLE MATTERS, 61 APPEALS. See. 82. 32. No order made by the High Court of Justice orders not or any Judge thereof, by the consent of parties, or aslppeai *" to costs only which by law are left to the discretion of the Court, shall be subject to any appeal, except by leave of the Court or Judge making such order. {See Jud. Act of 1 873, s. 49 ; R. S. O., c. 38, s. 1 8, sub-s. 3.) Identical with Imp. Act of 1873, s. 49. The rule laid down in this section has always been the rule in the Court of Chancery. (See Daniel's Practice, 5th ed., ^>p. 8.S7, 1329, 1332, and cases there cited ) An interpleader matter tried by consent by a Judge in (Chambers is within this section, (Ecld v. Winsor, W. N. 1878, 88 ; Turner v. BridgHt, 9 Q. B. D. 55) ; see R. -S. 0. c. 54, s. 5. By Rule 428 the right which certain classes of persons, such as Appeals aa trustees, mortgagees, etc. , had in Equity to costs (as being given them t" tosts. by contract) out of a particular estate or fund, is preserved. Such costs are not in the discretion of the Court, and are therefore a projjor sub- ject of appeal if no other restriction on the right of appaal applies e.g., sees. 33-35. (■* ^^U.^ PUBLIC- / i?2 ONTARIO JUDICATURE ACT, 1881. Sec< 32, 33. Though an appeal must not be l)rought for costa the following are instances in which appeals involving questions of principle on the subject of costs have been permitted : Where costs were directed to be first paid out of a fund aud then various incumbrancers in order of priority and the fund after payment of costs was not sufficient to pay the iirst incumbrancer, an appeal by him was held not prohibited (Johnstone v. Cox, 19 Ch. 1). 17) ; where an order imposed, as a condition of a new trial, the payment within a certain time of the costs of the first trial [Metropolitan Aaylum District v. Hill, 5 App. Cas. 582) ; where at the trial of an action for the infringement of a copyright of a novel, it appeared that the defendant before trial discontinued the use of the title of the novel objected to, and therefore the only order made was that defendant pay the costs of the action (Dicks v. Yates, 18 €h. D. 76). In a suit to settle the priorities between incumbrancers, B, one of the defendants was ordered to pay the costs of the plaintiff and his co-defendant. B appealed, and the decision being affirmed on the merits the ( yourt refused to vary the order as to costs, as that would be practically allowing an appeal for costs (Harpham v. Shacktock, 19 Ch. D. 215 ; Harris v. Aaron, 4 Ch. D. 749). Where upon an interlocutory application the Judge has based his decision upon the merits of the whole case the Court of Appeal will decide the question of costs both below and in apj^eal ( IVilkinson V. Hull, 30 W. R. G17 ; 4(j L. T. 455). An api)eal lies from a decision of a Judge as to the taxation of costs on t)ie higher or lower scale, but the Court will not interfere unless lie has proceeded upon a wrong principle, oi* made a manifest slip, (lie Terrell, 22 Ch. D. 473). Wee also as to charges the allowance of which is in the discretion ol" the taxing officer, 9 Pr. R. 555. Leave to appeal on a question of costs should be asked for when the judgment in question is given (May v. Thompson, W. N. 1882, 53). Appeals -^^ appeal lies from discretionary orders, but the Court does not frimi iliscre- in general interfere, though it may disapprove, unless in a strong tioiiary gjise or the discretion was exercised on a wrong principle. (See Ouldiuij V. Wharton, 1 Q. B. D. 374 ; Watson v. Rodwell, 3 Ch. D. 380 ; Huijyons v. Tweed, 10 Ch. D. 359, cases respecting the striking out of pleadings ; Byrd v. Maun, 7 Ch. i). 28C, 287 ; Laird v. Briygs, IG Ch. D. 063, respecting allowance of amendments ; Sivindell v. Birminyhaia tSytulicate, 3 Ch. D. 127; Ormerodv. Todniorden, 8 Q. B. D. 664, respecting the mode of trial ; Papayanni v. Coutpas, W. N. 1880, 109; Wallinyford v. Mutual Soc, 5" App. Cas. 685, 709, as to allowing a defendant to defend on a motion under Rule 80. 8ee also Jarmain v. Chatterton, 20 Ch. D. 493). orders. -1200. Limitati.ui 33^ No appeal shall lie from the judgment or order where of 'my Divlsioiial Court or Judge of the High Court nXxJetr to the Court of Appeal without the special leave of the Judge or Divisional Court whose judgment or order is in question, or of the Court of Appeal, unless the title to real estate or some interest therein or the validity of a patent is affected ; or unless the matter in controversy on the appeal exceeds the sum or value LIMITATION OF APPKALS. 53 of $200. exclusive of costs; or unless the matter in Sees- 33, 34. question relates to the taking of an annual or other rent, customary or other duty or fee, or a like demand of a general or public nature affecting future rights. (Sen R. S. O. c. 38, s. 49 ; Con. Stat. U. C. c. 38, s. 49 ; Jud. Act of 1873, s. 45.) rhe.se restrictions ou appeals are not in the English Act. [aJoj/ce V. Hart, 1 Sup. Ct. 321, the jjlaintiff claimed $2,000 ami only recovereil SlOl). The defendant was heUl entitled to appeal unler 38 V. c. 11 s. 17 (which prohibits appeals where less than $2,000 is in dispute) it being considered that the amount claimed should be looked at. not the amount of the judgment. See, however, O'Donohoe v. Whitty, 9 Pr. R. 361, where bills of costs amounting to .§250.10 were, on taxation, reduced to ^187.10, and the client desired to appeal ; the Court held that the matter in controversy was whether the appellant was liable to pay as much as .'$187. 10. The Divisional Court in that case subsequently granted leave to appeal, as the case involvetice thereof is given in writing to gweih'^""*'' the opposite party and to the Clerk of the Crown and Pleas, or Registrar of the proper Court, within one month after the judgment complained of, or within such further time as the Court appealed from, or a Judge thereof, may allow ; nor unless [within three months after the judgment complained of or within such further time as the Court or Judge aforesaid may allow] the appellant gives proper security to thfe extent of $400 to the satisfaction of the Court appealed from, that he will effectually prosecute his appeal, and pay such costs and damages as may be awarded in case the judgment appealed from is [in whole or in part] affirmed. {Sec R. S. O. c. 38, s. 26.) The words in brackets are new. This section places an additional limitation upon the right to appeal without interfering with the limit of a year imposed by K. S. O. c. 38, s. 46 (see Workman v. Rohh, 9 Pr. K. 169, where this enactment was held to be not retrospective). See further notes co the Orders of the Court of Appeal, pout. See as to enforcing undertakings not to appeal (Jones v. Victoria Gratnng Dock, 2 Q. B. D. 314 ; re Rutland County Bank, 13 Ch. D. 261). Appeals from High Court. 39. Save as aforesaid appeals from the judgments of the High Court or a Judge thereof in civil cases, shall be within the same time and in the same manner and with the same effect as heretofore from like judgments of the Superior Court or a Judge thereof {S>-e R S. O. c. 38, ss. 45-48.) See note to section 13, nnte, for the enactments regulating these matters 40. Upon the request of the [Judge or Judges with oTvlcauTy ^^ ^°^ whom he is requested to sit or act] it shall be in office of 11 lawful for any Judge of the Court of Appeal, who " ***' may consent so to do, to sit and act as a Judge of the Provision COURT OF APPEAL. said High Court, or to perform any other official or ministerial acts for or on behalf of any Judge absent from illness or any other cause, or m the place of any Judge whose office has become vacant, or as an addi- tional Judge of any Division ; and while so sitting and acting any such Judge of the Court of Appeal shall have all the power and authority of a Judge of the said High Court {See Jud. Act of 1873, s. 51 ; R. S. O. c. 3», s. 9.) The English section is identical with this, except that the request is to be by the TiOrd Chancellor. The section of the Revised Statute referred to was contined to "sitting" for another Judge, sayingnothing of "acting" for him or performing for him "any other otHcial or ministerial act." 67 .40-42- 41. In any cause or matter pending before the i^'^'we'' "f ■' Court of .A.ppeal, any direction incidental thereto, not i"' court of*' involving the decision of the appeal, may be given by ■^p'*^'' a single Judge of the Court of Appeal; and a single Judge of the Court of Appeal may at any time during vacation make any interim order to prevent prejudice to the claims of any parties pending an appeal as he may think fit ; but every such order made by a single Judge may be discharged or varied by the Court of Appeal or a Divisional Court thereof {See Jud. Act of 1873, s. 52.) Identical with the English section. 43 In case from pressure of business, or other ^i^'sjonai- cause, it shall at any time seem expedient to thecimrtof Lieutenant-Governor in Council, or to the Judges of ''^''^^*'" the Supreme Court, or a majority of them (of which majority two Judges of the Court of Appeal, includ- ing the Chief Justice unless ab.sent on leave, shall form part), the Court of Appeal may sit in two Divisions at the same time ; and in such case, and to enable two Divisional Courts to be held, the Judges of the said Supreme Court, or the said majority of them, shall select from the Judges of the High Court so many of the Judges thereof as may be necessary, together with the ordinary Judges of the Court of Appeal, to form two Divisions of the said Court, and t ■ ' ters which, at the time of the passing of this Act, are within the jurisdiction of the Courts of Law, the mode of trial shall be as is now provided by Law for like ca.ses in actions in the said Courts of Queen's Bench and Common Pleas ; and, subject as aforesaid, in causes and matters over which the Court of Chancery has, at the time of the passing of this Act, exclusive jurisdiction, the mode of trial shall be according to the present practice of the Court of Chancery. {See K. S. O. c. 49, ss. 4, 31 ; c. 50, ss. 252-258.J In England the ordinary mode of trial in Chancery was always by a single Judge. That was the practice for many years in the Ontario Court also. The Chancery Act (R. S. O. c. 40, s. 99) shows the method of trial by jury in Chancery, where that course might be resorted to. !i 00 8eo. Mod.'s trial. 46. of Practice in tingUnd. ;1 i Practice in Ontario. I ONTARIO JUUICATUKK ACT, 1881. The present Rule governs the practice now, as to when a trial is to be with or without a jury. In England the trial of an action with or without a jury depcmU upon Hulea (Order 36 rr. 3, 26,) which have not been adopted in On- tario. Au almolute right is given to either party in purely Common Law actions to require, by notice, the issues to be tried by a jury ; whereas in cases which formerly would have been brought in Chan- lery only, aii.) Wlien the discretion of the Court is exercised in favour of a jury trial, the cause may be transferred to another Division, to which it will thence- forwaid belong (Jones v. Baxter, Cy Ex. I). 27'», ) and this is generally adopted as the more convenient course, ( h'e .Uartln, xupr^(; V. litck, 9 I'r. R. 2<»8). The following sections of the Common Law Procedure Act K. S. O. u. 50, shew •' the mode of trial now provided by law in actions in the Courts of Queen's Bench and Common Pleas. ' "252. In actions of libel, slander, criminal conversation, seduc- tion, malicious arrest, malicious prosecution and false imprisonment, all questions which might heretotore have been tried by a jury, shall be tried by a jury, unless the parties in person or by their attorneys or counsel, waive such trial. '•253. All other issues of fact in any civil action, when brought in either of the Superior Courts, or in any of the County Courts, and the assessment or ennuiry of damages in every such action, may and (subject to the movisions of the 255th section) in the absence of such notice as in subsection two of this section mentioned, shall be heard, tried and assessed by a Judge of the said Courta without the intervention of a jury. •'2. If anyone or more of the parties desirjs such issue to be tried, or damages t ) be assessed or enquired of by a jury, he shall give notice to the Court in which such action is pending, and to the opposite party by Hling with his last pleading and servhig on the opposite party a notice in writing to the efl'ect following, that is to say: — "The Plaintifl" (or one, or mure of the)ii or the Defendant, or one or more of theiit aa the cane iiuiif he) requires that the issues in this cause be tried (or the damages assessed) by a jury," and a copy of such notice shall be attached to tlie record. A jury notice in an interpleader matter is served by the plaintiff with the issue or by the defendant within four days after the delivery of the issue (R. 8. U., c. 54, a. 4), Serviiag a jury notice with notice of trial instead of with the issue is an irregularity which may be waived by not being "moved against (Leeson v. Lemon, 17 C. L. J. 4.30 ; 1 C. L. T. 698). " 254. Wherever any one or more of the parties to any such action have given such notice re. 260). The report must contain the materials on which the Court is to act (Longman v. Enut, 3 C. P. D. 149), with such facts and particulars as may be necessary in each case, to shew on what the report is based, e. g. where damages have been assessed, the principle upon which the assessment has been made (Mayor of Birmingham v. Allen, W. N. 1877, 190) ; where accounts have been taken, not merely the result of them, but also which items have been allowed, and which disallowed should be made to appear by the report (Burrard v. Calisher, W. i\. 1882, 11 ; 30 W. R. 321 ; 45 L. T. 793; 51 L. J. Chy. 223 ; 18 C. L. J. 180 ; 2 Ont. 165). The evidence should not be .stated (Longman v. Ead, sup., see also Sovereign v. Sovereign, 15 (ir. 559), nor the reasons for any findings (Dunkirk Colliery v. Lever, 9 Ch. D. 20), though the Referee may doubtless be specially directed to do so where necessary (See McCargar V. McKinnou, 15 (ir. 361). Rules 276 and 278 provide for the mode of procedure by Referees. Rule 280 provides for the submission by the Referee, in his report, of questions for the decision of the Court. Procedure A report under this section requires to be adopted by the Court to enforce. (See Oiiardians of Mamfield v. Wright, per Jessel M. R., 9 Q. B. D., p. 686 ; Miller v. Pilling, 9 Q. B. D. 738). Judgment cannot be signed upon it without a motion for judgment, which is similar to the former motion for decree on further directions, except that the ( 'ourt is not bound to adojjt the report (see concluding clause and note thereon supra Sec. 47, and Miller v. Pilling, 9 Q. B. D. 738). For this purpose, as no period is limited for moving against the repoi t or for its confirmation, the report may be taken to the Court at once without waiting for any lapse of time, and also with- out any motion to confirm it (Deacon v. Dolby, W. N. 1882, 8 ; 30 W. K. 317; 51 L. J". Chy. 248 ; 18 C. L. J. 180; Walker v. Bunkell and liarrard v. Calisher, supra). REFEREES. 67 Any party dissatisfied with the report may move to set it aside or Sec 47. vary it (Dunkirk Colliery v. Lever, 9 Ch. D. 23), at any time before sub-s. a. or upon the return of any motion for judgment based upon it « .„ (Burrard v. Calisher, \V. N. 1882, 29 ; 30 W. R. 540 ; 46 L. ^*°' *"" T. 341; 18 0. L. J. 261); Be Brook, Si/kes v. Brook, 29 VV. R. Procedure 821 ; 45 L. T. 172 ; 17 O. L. J. 391 ; Walker v. Bunkdl, 22 Ch. to vary D. 722; but see Hamilton v. Tweed, 9 Pr. R. 448, where the'■''^"*"• practice in case of a Master's report was followed without objection). Two days notice of such motion is sufficient (Be Brook sup). In England a motion raising objections to the report is gene- rally begun by summons, but adjtmrned as a matter of course into Court to be heard with the further consideration of the case. (Oases nupra and Be Evans, Owen v. Evans, VV. N. 1882, 37). In Ontario probably the motion will be nrnde before a single judge in Court (see Gumming v. Low, 2 Ont. 505). As to the power of the Court on such a motion, see notes to this section, supra and to Sec. 49. 4 ^. In any cause or matter (other than a criminal ,^'J.7oTt*ruis proceeding by the Crown) before the said High Court, '>«fore (i) in which all parties interested who are under no disability consent thereto, and also (2) without such consent in any such cause or matter requiring any prolonged examination of documents or accounts, or any scientific or local investigation which cannot, in the opinion of the Court or a Judge conveniently be made before a jury, or conducted by the Court or Judge directly, — the Court or a Judge may at any time, on such terms as may be thought proper, order any question or issue of fact, or any question of ac- count arising in the cause or matter, to be tried either before a Judge of a County Court, or before an official referee, or (if the parties so agree) before a special referee. {See Jud Act of 1873, s. 57, first part). (2) All such trials before referees shall be conducted in such manner as may be prescribed by Rules of Court, and subject thereto in such manner as the Court or Judge ordering the same shall direct. (Jud. Act of 1873, s. 57, second part). Instead of the expression "the Court or Judge directly," the English section 57 has the words " the Court through its other ordi- nary officers" as by a recent change in the practice of the Court of Chancery in England references had ceased to be made to a Master, and were conducted by a Chief Clerk under the direction of the Judge. That change had not been followed in this Province, The English Act does not provide for a reference to or trial before a County Court Judge. A^ to the scope of this section see prefatory note to sec. 47. 1 m ONTARIO JUDlCATUBJi: ACT, 1881. 8eo 48- Under this section, the Court, or a What may be referred Boor, W. N. 1880, 93 ; 43, L. T. 425 ; Judge at Nisi Prius (Hoch v. 49 L. J. Q. B. 665} may send. »: \ where the parties have consented, not the whole action ( Lomjman V. East, 3 C. V. D. 142 ; Braginton v. Yatfn, W. N. 1880, 150), but any question or issue of fact to an official Referee for trial. Where an order is made without consent, the Court can only semi such (ques- tions as are brought within the ;;erms of the section, that is any issue requiring prolonged examination of documents or accounts, etc., which in the judicial opinion of the Judge cannot conveniently be made before a jury or conducted by the Court or Judge directly, (Loiitjmaii V. Eaat, Hoch v. Boor, sup. ) But if a case is once brought within the section by reason of a prolonged examination of docu- ments, etc. being involved, the Court may re.er not only the questions of account, but all issues of fact in the cause, ( Waril v. Pilky, 5 Q. B. D. 427, 431 ; Miller v. Pillinri, 9 Q. B. D. 738) though the ques- tion in dispute does not consist entirely of matters of account (Martin v. Fife, 31 W. R. 840 ; 49 L. T. 107 ; Gooilwin v. Budden, 42 L. T. 536), as where issues of fact were so mixeil up with matters of account, that they could not practically be dissevered (Long man V. Ead, 3 C. P. D. 160 ; Ward v. Hall, W. N. 1880, 69). it is pro- bable however, that where there is a substantial question of liability upon which the taking of accounts depends, to be determined, it will first be determined in the ordinary way {Clow v. Harfjer, 3 Ex. D. 198 ; IVard v. Hall, W.N. 1880, 69). "Prolonged" means prolonged if had beforn a jury, not if had before a skilled accountant ( Ward v. PUk-ij, 5 (J. B. l)., 128) and, the documents are such as it would be necessary to enquire into in order to leave the question properly to the jury, not such as require examination to determine a question of legal right (Orinerod v. Tod- niorden, 8 Q. B. D., 664, 677). Reading a lot of letters is not a pro- longed examination of documents ((r/'ePH'ii Truslet v. Barrttt, W. 2s., 1875, 204.) The expression "question of account" will receive a large con- struction (Re Leigh, 3 Ch. D., 292) ; and any question of account which may be compulsorily referred under the C. L. P Act (see sees. 189 and 195, pout pp. 71, 75) may be compulsorily referred under this section. ( Ward v. Pilley, 5 Q. B. D., 427.) In a case involving critical knowledge of pictures the Court of Appeal refused to send the case for trial before a special Referee against defendant's will, as the fortune and character of the de- fendant were involved, and he was entitled to have the matters of fraud charged tried in a public Court. (Leigh v. liruokx, 5 Ch. D., 592). But even where there are questions of fraud there is no inherent right to a trial V)y jury, and in such a case if the issues involve a prolonged examination of documents or accounts they may l)e compulsorily referred (Hoch v. Boor, W. N., 1880, 93 ; 43, L. T. 425 ; Sucker v. Ragozine ,l' Co., 44 L. T., 308). A question of damages consisting of various items in an action for injuries caused to a vessel by defendant's negligence (Liverpvol ct'C. Co. V. London Navigation, VV. N,, 1875, 203) issues of fact in a patent case requiring "scientific investigation," (Saxbij v. irloiicestcr Waggon Co., W. N., 1880, 28) and damages in an action for specilic Eerformance (Stajf'ordx. Coxon, W. N., 1877, 138) were ordered to e assessed by a referee. An order made under this section by a Judge in his discretion is appealable (Ormerod v. Todmorden, dr., 8 Q. B. D., 664; Hoch v. Boor, W. N., 1880, 93 ; 43 L. T., 425.) But as a rule the Court REFERBES. &9 of A-ppeal is disinclined to interfere with the exercise of a discre- 3«w- 4B, 4^ tion (Saxhfj v. Gloucester Watjgon Co., W. N. 1880, 28). A form of order is given in the App. No. 131. It should as inti- order, mated in Lowjman v. Ektut (3 C. P. D. 163), point out that it is an order under this section for issues to be tried, and should state whether all the issues are to be tried, or, if only certain issues, io should state by some sufficient description what those issues are {OainiHinij v. Low, 2 Ont. 505). Rules 276-278 regulate the procedure on a trial before a Referee. Rule 280 provides for the submission of questions to the Court by the Referee before the c'iujlu-*ion of the trial before him, or by hia report. The report of a lleferee under this section should state his con- Report, elusions upon the issues referred, and he is not bound to give reasons for hia findings ( Miller v. Pilling, 9 Q. B. D. 736 ; see also Long- man V. E(t!it, 3 0. i'. U. 151) Under Rule 281 the Court has power to obtain any explanition or reasons as to the principles upon which the Referee has rested his conclusions (//>). For an example of scientific or local investigation by a Referee, see Broiler v. Saillard, 2 C\i. D. 6»2. The report of a Referee under this section is by sec. 49, equiva- lent to the verdict of a jury. It does not require any confirmation or adoption, but unless moved against is final. An OHicial I'efeiee has, however, no power to order judgment to J"'lg"'«'it- be entered {Loiufiaayi v. East, 3 G. P. D. 142). The report must be brought before the Court on motion for judgment, when the Court will give judgment as formerly in Chancery upon the report of a Master {Longman v. Eatit, nup. ; Deacon v. Dolby, W. N., 1883, 25 ; Miller v. Pillinrf, 9 Q. B. D., 736 ; Monro v. liendall, W N., 1878, 41 ; Walker v. Bunkell, 22 Ch. D., 722). The motion is made to a single Judge sitt'.ng in Court (see Camming v. Loio, sti/i.) Such matters as that the report is imperfect or in excess of juris- diction may be urged in opposing a motion for judgment {Cooh- v. Newcastle, 10 Q. B. D., 336). As to moving against the report see sec. 49. 49. In all cases of a reference to or trial by re-P"werof ferees under this Act, the referees shall be deemed to efieotof their be officers of the Court, and shall have such authority ^"'^'"»''''' for the purpose of reference or trial as shall be pre- scribed by Rules of Court, or (subject to such Rules) by the Court or Judge ordering such reference or trial ; and the report of any referee upon any ques- tion of fact on any such trial shall (unless set aside by the Court) be equivalent to the verdict of a jury, (Jud. Act of 1873, s. 58). Same as the English section. The last clause of this section refers to reports made on a reference for trial under section 48. The Referee reports his conclusion to the Court, and it has the same binding effect as the verdict of a jury. The judgment is, 70 ONTAKIO JUDICATUUE ACT, 1881. Beo8- 49. 50- however, to be given by the Court {Miller v. Pilling, 1) Q. B. 1)., p. 738). The concluding words of the section merely deal with the binding efl'ect of the Referee's Hndingsanddo not make it necessary (notwithstanding Sullivan v. Hivinyton, 28 W. K., 372) to move against the report by the same mode of procedure, or within the same time, as in the case of a verdict of a jury. The proper course is to move upon notice under Rule 4(16 upon any ground upon which the verdict of a jury may be set aside (Dyke v. Vannell, 11 Q. B. D., 180 ; Miller v. PiUimj, 9 Q. B. D., 739 •,'Cummiiiii v. Low, 2 Unt. 503 ; Oxiardiam of Manxjield v. Wri<)ht, 9 Q. B. J)., 680), and such motion may be made at any time before judgment is moved for by the party in whose favour the report is {JJyke v. Cannell, 11 Q. B. D., 183; Bedborough v. Army and Navy Hotel, 28 Sol- Jour. 325.) The motion to set aside a report must, in England, be made to the Divisional Court (Cooke v. Newcastle, ttc, 10 Q. B. I)., 332), but in Ontario the motion will be before a single Judge in Court, (see Rule 471 and sec. 28), as in the case of a motion for judgment (m the report (C'ummiiiy v. Low, «np. 505 ; Guardians of Mannjield Union v. Wright, 9 Q. B. D., 683 ; Deacon v. Dolby, W. N., 1883, 25). Powers of Court with respect to Referees. 50. With respect to all such proceedings before referees and to their reports the Court or Judge shall before "'^* havc, in addition to any other powers, the same or the like powers as by the Common Law Procedure Act and other Acts are given to any Court whose jurisdic- tion is hereby vested in the said High Court with respect to references to arbitration and proceedings before arbitrators and their awards and appeals there- from respectively. (Set Jud. Act of 1873, s. 59; R. S. O., c. 50, ss. 189-227.) REFERENCES TO ARBITRATORS. The former practice as to references to Arbitrators remains un- aflected by and is supplementary to the provisions of sees. 47-50 (see Cruikshunk v. Floating Swimming Bath Co., 1 C. P. D. 260, and per Brett, L J., in Longman v. East, 3 C. P. D. 153), and is applicable m all the Divisions of the High Court (see sees. 3, 9, and 57). Such references were (1) voluntary or (2) compulsory under the C. L. P. Act. That Act contained also provisions applicable to both kinds of references. Voluntary References. These are of two kinds (see Haynes, Chy. Pr. 530) viz. (1) Refer- ences to arbitration, by consent, of controversies as to which no action or suit is pending, but in which, if the conditions of the Acts be complied with, the submission may be made a rule of Court, and the award may be enforced under Imperial Act 9 Wm. 3, c. 15 (see Russ. Arb. 5th Ed. 841, and R. S. O, c. 50, s. 201). (2) References of actions by consent of the parties. Such references have usually taken one or another of three forms : The submission has been of the action simply ; or of the action and all matters in difference, so as to refer all controversies though not included in the action ; or of ARBITRATIONS. 71 the action and all matters in differeuce, with power to say what C I* Pi Aot| shall be done, so as to enable the arbitrator not only *o determine s. 189. rights or award damages, as the case may be, but to direct the doing of such acts as may be desirable (see notes to ss. 195, '206). Where nothing is said in the submission as to costs, if there is no costs, cause in Court the arbitrator has no power over them (Die/: v. Mil- limn, '2 Ves. Jr. 23), but if there is a cause in Court which is referred by order of Xisi Prius either alone or with all matters in differeuce the arbitrator has, nevertheless implied authority to adjudicate re- spectint' the costs of the cause, as they are a matter in difference, though ^not of the reference or award, and each party must bear his own expenses of the reference, and is liable for half the costs of the award (Firth v. Rohimon, 1 B. & C, 277 ; Tai/lor v. Lady Gordon, 9 Bing. 570 ; Bdl v. Bennon, 2 Chitt., 157 ; Bullen v. .King, 36 L. T., 732). If the costs are to abide the event, the arbitrator has no power over them. And if the costs generally, and not merely the costs of the cause, are in the arbitrator's discretion or to abide the event, this includes the costs of the reference as well as the costs of the action (Strutt v. Bayers. 7 Taunt, 214 ; Wood v. O' Kelly, 9 East, 436). As to the costs on compulsory references see note to sec. 189. As to enforcing awards made on voluntary references see notes to sec. 210. Compulsory References. These are regulated by the C. are here subjoined : — L. P. Act Sees. 189, et seq. which PROVISIONS FOR THE MORE EXPEDITIOUS DETERMINA- riON OF MATTERS OF MERE ACCOUNT BY REFER- ENCE TO REFEREES OR ARBITRATORS. In cases in the Superior Courts. [189. If at any time after the wiit has issued, and before the record has been entered for trial, it is upon the applica- tion of either party made to appear to the satisfaction of the Court or a Judge that the matters in dispute consist wholly or in part of matters of mere account, which cannot conveni- ently be tried in the ordinary way, the Court or Judge may upcxi such application, if it or he thinks fit, decide such matter in a summary manner, or order such matter, either wholly or in part, to be referred to the Master or any Local Master of the Court of Chancery, or to the Judge of any County Court, or to any Referee appointed by the parties who consents in writing to accept such reference, upon such terras as to costs and otherwise as such Court or Judge thinks reasonable ; and the decision or order of such Court or Judge, so soon as given or made, or the report or certi- ficate of such Master, County Judge or other Referee, when SuiiimaryJ declgion or reference after writ and before records en* tered in matters of account. i 1 I 72 ONTARIO JUDICATURE ACT, 1881. i 0. I* p. Act, contirmed hs hereinafter provided, may be enforced by the "• ^^^' same process as the finding of p jury upon the matter referred. 39 V. e. 28, s. 1.] Taken from Imp. Act 17 and 18 V^ict. c. 125, s. 3. The reference in a country case, if to a judge, should be to the judge of the county where the case is to be tried (Mo. Edward v. Mcadtvard, 3 U. C. L. J. 75), but it may be to an officer of the proper Court at Toronto {Bitjelow v. Cleverdou, 6 Pr. R. 3). A reference under this sectitm is proper where the the case consists of simple items of account as to w' ich the amount only is disputed {Am/el/ V. F^-li/dfe, 5 L. T. N. S. :yz2 ; Pef/ v. Addison, 2 F. & F. 291 ; Goodrcd v. Tmle, ih. 382 ; Batjijalay v. Bortlmkk, lU J. B. N. S. 61), and in such cases the whole action may be referred, though the dispute is not entirely as to matters of account (Martin v. Fife, 30 W. K. 840 ; 49 L. T. 107). It has been held that the case does not cease to be a matter of account because one party seeks to impugn the correctness of the account on the ground of fraud (Insidl V. Moojeii, 3 C. B. JS". S. 361 ; Imhof v. Sutton, L. K. 2 C. P. 406; Birmingham, itr., v. Ratdijf', L. R. 6 Ex. 224), and that the the whole matter in dispute may be referred though some items in the account may be disputed (Browne v. Emernon, 17 C. B 361) ; but by a subsequent decision (Clow v. Harper, 3 Ex. D. 198 ; see also Ward V. Pillei/, 5 Q. B. D. ) the correctness of these decisions is rendered doubtful. The Court of Api)eal in Cloiv v. Harper, expressed the opinion that the true construction of the above section is, that where the question in dispute involves mere matters of account the Court may send the whole matters of account, or that part which involves matters of account, to an arbitrator, but that the order should be confined to what ia matter of account. (See however, Martin v. Fyfe, 31 W. H. 840). Where defences are intended upon which the opinion of a jury is desirable (Evann v. Jackson, 3 U. C. L. J. 88) ; or generally wherever there is a material preliminary question of liability in dispute, to be decided before the matters of account arise (Clow v. Harper, sup.; Laseelles v. Butt, 2 Ch. D. 588; Gannon v. Gihb, 8 Pr. R. 115), an order should not be made. The cause onlj' and not all matters in diffeience can be referred (Kendal v. Merrell, 18 C. B., 173 ; Burns v. Chamherlin, 25 (ir. 148). Notwithstanding a compulsorj' reference the action still remains in (^ourt (Elwards v. Edwards, oC. B. , N. S., 536) and amendments may be made (Gihhs v. Kniijhtly, 2 H. & N., .34 ; Thompsett v. Boir- yer, 9 C. B. N. S.,284). But the proceedings upon a reference under the C L. P. Act are not subject to the Jud. Act so as to give the Court under Rule 428 a power over costs where the order of reference is silent as to costs ( Wimshurst v. Barrow Shipbuilding Co., 2 Q. B. D. 335). The reference may be upon such terms as to costs and otherwise as the Court or Judge thinks reasonable, but if the order is silent as to costs the arbitrator has no power over either the costs of the action or reference (Bell v. Postlethwaite, 5 E. & B. 695, 25 L. J., Q. B. 63; Leggo v. Young, 16 C. B. 626, 24 L. J., C. P., 200; Bullen V. King, 36 L. T., 732). Power to determine by whom the costs of the reference are to be paid includes power to award as to the costs of the award (Be Walker «fc Broivti, W. N., 1882, 94 ; 30 W, R., 703). When the costs generally, and not merely the costs of the cause, are to abide the event, this includes the costs of the reference" AKBITKAT0R8. 73 {StriUt V. Rogeris, 7 Taunt., 214 ; Wood v. O' Kelly, 9 East, 436 ; see 0- also Oalatti v. Wakefield, 4 Ex. D.. 249). 88 Where an order of reference gave the arbitrator " all the powers as to amendment and otherwise, of a Judge sitting at Nisi rrius," it was held that this gave power to certify for costs, and, the arbi- trator not having done so, a Judge had no power to give costs (Little V. Lines, 7 Pr. R., 197 ; Cabler v, Oifhert, 3 Pr. R. 127). Where the arbitrator was emjwwered to certify and amend plead- ings and proceedings, and otherwise as a Judge at Nisi Prius, and the costs of the reftrence, arbitration and award were to abide the result of the award ; held that the arbitrator had no power to make any disposition of the costs as they were provided for by the order of reference [JJemnney v, Durr, 4 Ont. 206). Whore the arbitrator is given the powers of certifying of a Judge at Nisi Prius and he desires to certify for full costs or otherwise, he must do so in his award, and should not after it is made, certify on the back of it, as he is then functnn officio (Be.dwnU v. Wood, 2 Q. B U C'26 ; see also Mordue v. Palmer, L. K. 6 (.'hy. 22 and Calder V. aHhert, 3 Pr. R. 127). The words " costs of suit " in an award have no reference to any particular scale of taxation and therefore do not per se entitle the plaintiff to full costs (Keep v. Hammond, 9 U. C. L. J. 157)- Where the costs of the " reference and award" were in the discre- tion of arbitrators and they directed that defendants should pay costs of "sHl)mis8ion and award " it was held that costs of submission included costs of "reference" (Elbmod v. Middlesex, 19 U. C. Q. B. •2-.). L- p. Aot. 190, 191. Any iiioi- deiital quei- tkiii of law mny be de- cided liy the Co lilt, or one of fact by u jury up- on ti Apecial nase or issue. [1«M). !♦' it appears to the Court or Judge that the allow- ance or disallowance of any particular items in such account depends uj)on a question of law proper to be decided by the Coui't, or upon a question of fact ])roper to be decided by a jury, siich Court or Judge ma}' direct a case to be stated or issues to be tried ; and the decision of the Court upon such case, and the finding of the Jury upon such issues shall be taken and acted upon by the Master, County Judge, or otlier Referee, as conclusive. C. 8. U. C. c. 22, s. 159.J Taken from Imp. Act 17 and 18, Vict. c. 125, s. 4. This section supports the distinction, referred to in the notes to the previous sec. , between questions in dispute, and matters of account. For an example of an itejn depending upon an issue of law see Mowatt V. Lord Lo)ide.sl)oroiigh, 3 El. and B. 307 ; 4 El. and B. 1. [ I tM. Where an ordf r is made under the one hundred and Pi„eeduie eighty-ninth section, the Master, County Judge or other oi» '"^^''ence- Referee to whom the refej-ence is directed, shall proceed therein ; and the ilepositions of the witnesses examined upon such reference shall be taken down in writing, and shall, forthwith after the making of the report or certificate, !'^''^'f{^^J^^g ***" together with the exhibits referred to therein, and the said certificate, report or certificate, and upon i)ayment of the fees of such Master, County Judge or Referee, be tiled by the said r 74 ONTAHIO JUDICATURK ACT, 1881. Filing of jiainTM ut Toronto. 0. L. p. Aot, Mastnr, County J U(l;i^e or Referee with the officer of the **' ^^' Court with whom tlie prrecijte for the said writ was tiled, except in the cases uientioued in suh-section two of this section. 2. In cases in either of tl)e Superior Courts where the •lepositions, report or certificate and other papers are required to be filed in the City of Toronto, they shall be so tiled in the office of the Clerk of the Crown of the Court in which the action is depending. ReiH.nor 3. Such report or certificate shall, without an order con- become ab firming the same, become absolute at the expiration of am"eai"d''^*''* ^""*"*'<^*^'i davs from the filing thereof unless appealed from, from. but the Court or Judge may under special circumstances allow an appeal after the fourteen days. 39 V. c. 28, s, 2 ; 40 V. c. 7, Sched. A. ,^3).] Where a reference is directed to "the Judge" of a certain Court* the senior Judge is referred to (Re Elora v. Potter, 7 Pr. R. 12. A Judge to whom the reference is made is bound to acton the reference (Cummins v. Birkett, 3 H. & N. 156 ; liisull v. Moojen, 3 0. B. N. S. 361 ; Clark v. Ware, 17 L. T. N. S. U4). No man not being a Judge or other such public officer, is bound to act against his will (Crawahay v. Collins, 3 Sw. 90). Appj^al from report under 8. 191. [193. The appeal from a report oi certificate referred to in the next preceding section of this Act shall he to the Court in which the said action was begun, and may be heard before and decided by a Judge of either of the Superior Practice. Courts, in or out of Term, and the practice to be observed upon any such appeal shall be the practice now observed in Amendment appe^ls from the report of a Master in Chancery ; and such ofcertiflcate. Judge may upon such appeal either amend the said report or certificate in any way and to any extent that he may deem proper, or refer the same back to the said Master, County Judge or other Referee for amendment in whole or in part, with fi;ieh directions as to law or fact as he may deem proper, oi he may confirm the same. 39 V. c. 28, s. 7.] The practicf! on appeals from a Master in Chancery was at the time of the enactment of this section governed by Chy, Gen. Orders 252, 253. Transmis- [103. The officer of the Court with whom any depositions papers for S'^d report or certificate taken or made under the provisions anuaaf*** "^ of this Act have been filed, shall, for the purpose of any such appeal or motion, within twenty-four hours after notice in writing delivered to him in his office for that purpose and payment of the necessary postage, enclose, seal up and appeal. AKHITRATI0N8. 75- 4 transmit by post to the proper principal office in Toronto, L P. Act, addressed to the Clerk thereof, such depositions and report "' ^®^ or certitipate. together with all exhibits and pajiers Hied Return ot therewith ; and after such appeal or motion has been dis- 1'"!"'"*"- posed of, any party thereto may in like manner (procure such depositions, report or certiticate, exhibits and pa])ers to be returned to the officer of the Court with wliom they were originally filed. 3\) V. c. 28, s. 3. | ri94. Where the reference is made to the County Judge ';"7 *" tii.! or the Master in Chancery, such persons shall be entitled to Muxtcr. take and receive to his own use the same fees as the Local Masters of the Court of Chancery are entitled to receive u[)on a reference from the Court of Chancery. 39 V. c. 28, 8. y.] [I95t In all actions involving the investigation of long in actions accounts on either side, the Judge may at and during the {JJi^^'acf.*^ trial direct a reference of all issues of fact in the cause to '•""n'^^' arbitration, or of such of the said issues and of the accounts Iiire^tn're- and matters involved in all or any of such issues as he thinks <'*"■';««'■ "* ^o- . •' . . jiart ami a fit, taking the verdict of the juiy upon any issue or issues vprdict a« to not so referred, and directing a verdict to be entered gener- '»^p'"or "leavV ally, on all or any of the issues, for either party, subject to the whole such reference ; or he may leave all or any issues of fact to " "'J"''^ be found by the jury, referring only the amount of damages to be ascertained ; and if the parties agree upon the Arbit- Appoint- rators (not more than three), the names of those agreed on [['j^J't^jJ * shall be inserted in the order of reference, but if the parties referred cannot agree, the Judge shall name the ^ rbitrator or Arbi- trators, and appoint all other terms and conditions of the reference to be inserted in such order ; and the Judge directing any reference under this section may direct such reference (if he sees fit to do so) in like manner as he has power to do under sections one hundred and eighty-nine and one hundred and ninety ; and every Arbitrator appointed under this section shall be subject to the provisions of the said sections, and shall ha,ve the powers expressed in the one hundred and ninety-seventh section, and be subject to the same regulations as are mentioned and provided in regard to Arbitrators in and by the two hundred and twelfth section of this Act. C. S. U. C. e. 22, a. 160.] Taken partly from Imp. Act 17 and 18 V. c. 125, s. 6. This section is an extension of the powers before trial given by Sec. 189 and enables the Judge at the trial to refer. It contemplates the disposition of all the issues in the action in some way. An order of reference is appealable in cases in which the Judee cannot be said to have exercised a discretion, but applied the clause in a : in ■■.■i fl 76 ONTARIO JUDICATURE ACT, 1881. 0- L. p. Act case to which it was altogether inapplicable ( Wells v. Ozowski, 14 U. M. 194^ 198. O. Q. B. 553 ; see Ormerod v. Todmorden, 8 Q. B. D. 664). The matters in dispute in the cause oiily, an-' not all matters in difference between the parties may be referred (Kendil v. Merrell, 18 C. B. 173 ; Burns v. Chnmherlin, 25 Gr. 148 ; see Blanchnrd v. Snider, 28 U. C. Q. 13. 210, where the order, though slightly ambiguous, was held to refer only differences in the cause, and as only these had been considered, the order was directed to be amended if necessary). Where defendants attended without protest, on an arbitration ordered at Nisi Prius, they were held precluded from objecting that the order was not authorized (Newman v. Niagara District Mut. Fire Ins. Co. 25 U. 0. Q. B. 435, Setnhle in that case the reference was authorized, see also Barton v. Hahertus, Hi C. P. 440; and Wood- cuk V. Kilby, 4 Dowl., Pr. C. 730). See Rules 246 (e), and 247 as to the form of order of reference. The original of this section C. S. U. C, c. 22, s. 160, provided that a motion against the award or the reference should be made within the Hrst four days of the Term next after the making of the award (see Wilson v. Richardson, 43 U. C. Q.B., 365). As to the time for moving now see notes to sec. 206 infra. As to costs see notes to sec. 189. Appeal fivim [2. An appeal shall lie against an award or report made Award. Qj-^ jj^ reference under this section, in the same way as if the reference had been made tinder section one hundred and eighty -nine. 40 V., c. 8, s. 20.] This sub-section seems to have been enacted nnd substituted for 39 v., c. 28, s. n, in consequence of the decision in Tanner v. Sewery. 27 C. P., 53, where it was held that sec. 5, of 39 V., c. 28, did not entitle a party to open the whole question of the merits of the case and the evidence, in the shape of an appeal, but merely to move against the award upon such grounds as were allowable before the Act (see sec. 206) ; and therefore a motion to set aside an award as acainst the weight of evidence was refused. The orulwary refereuoe by '".msent on a Nisi Prius order (see p. 70) is not subject to tlie provisions of this section, which applies only to compulsory references. Unless, therefore, sec, 205 applies, a motion against the award made on a voluntary reference can only be made as before the Act (Na, shall proceed with the re!'erence notwithstanding any such ^' ^^*' revocation, and make an award, although the person making such revocation does not afterwards attend the reference ; and the Court, or any Judge tliereof, as the case may be, court may may, from time to time, enlarge the time for any such ^'•^'"^^•j.'^^'n® Keferee or Arbitrators to make their award. C. S. U. Can award. c. -' 00 179.] Taken from Prov. Act, 7 W. 4., c. 3, s. 29. (Imp. Act 3 & 4 W. 4, c. 42, s. 39.) 8ee uotes to preceding sections. Before this provision a submission was revocable before award, and therefore upon an arbitrator appearing to be unfavourable to one party that party often revoked th« submission ( Clarke v. Stocken, 3 BintT. ^. C., 051 ; Jauien v. Atticood, 7 Scott 843). The present section, passed to remedy this, would seem not to apply, and the submission to be therefore revocable before award ( 1 ) where it is not by order and contains words purporting that the submission shall not be made a rule of Court ; and (2) where though not con- taining such words an arbitrator or umpire has not been appointed (see ThomwH v. Anderson, L. R., 9 Va\., 523 ; Randellv. Thompson, I Q. B. D. 748; Moffatt v. Gorndias, 26 W. R., 914; Pkrcy v. Yoiinri, 14 Ch. D., 200 ; Re Ehretifiperger & Eckerstein, 49L.T. 64G)_ A general continuing agreement to refer in partnership articles cannot be revoked any more than any other clause of the articles {Ohridk' V. Noble, VV. N., 1880, 71). This discretionary power should be sparingly and cautiously *ix- eroised (-S'cy« V. VanSandan, I Q. B., 102, 110 ; Pope v. Lord Duncan- Hon, 9 Sim., 177 ; Re Wru/ht v. Corporation of Grey, 8 U. C, L. J., 104; James v. Attwood,! Scott, 843), in general not unless niis- con(hict on the part of the arbitrator is shown (Re Wooderojt v. Jom'H, 9 DowL, P. C, 538; Wilson v. Morel I, 15 0. B., 720; TkIIij v. Ghainberhiin, 9 C L. .J., 237). Fear of an excessive award is not sufficient ground (G. W. Railway Co. v. Miller, 12 U. C). Q. B., G54 ; see also Re Wright v. Corporation, of Grey, 8 U. 0. L. J., 109, where revocation was allowed. Where the (Jourt is of opinion that under the circumstances it is not probable tliat an arbitrator will faithfully and lionestly discharge his duty, it may at the instance of one of the parties to the arbitra- tration restrain him by injunction from acting (Beddow v. Beddow, 9 Ch, D. 89 ; Mahneslmry Railway Co. v. Badd, 2 Ch. D., 113.) An arbitrator must exercise any jjower of enlargement given liiui during the period limited for making his award, but the (Jourt is limited only ))y its own discretion (Xewman v. Parhnry, 9 Dowl., P. C, 288 ; Leslie v. Richardson, 12 Jur., 730 ; 6 D. & L., 91 ; Howen V. Williams, 6 D. & L., 235), and may enlarge the time beyond tliat to which the arbitrator had power to enlarge it, and hail enlarged it, and may enlarge it after the award is made (Seton, 402). But the Court will seldom interfere except where the arbitrator has inad- vertently allowed the time to expire (Andrews v. Eaton, 7 Ex., 223 ; Re Salkekl v. Slater, 12 A. & E., 707), and both parties will after- wards be on an ec^ual footing (Day, C. L. P. Act, 257). Where a formal verdict was taken subject to a reference which failed through the omission of the arbitrators to enlarge the time for 6 , i ri T 82 ONTARIO JUDICATUUE ACT, 1881. 0- L. p. Act, making their award, a Judge on motion set aside the verdict and 88. 206, 206- granted a new trial the question in dispute being one which might conveniently be tried in the ordinary way (Cooper v.. Central Ontario- If;/., 4 0nt. 280.) See also sec. 219. This Act to apply on voluntary reference and agree- ment tli.'it appeal may lie. [!?05. In tlie case of a voluntary reference to arbitration, where it is agreed by the terms of the submission that there may be an appeal to one of the Superior Courts, this Act shall ap[)ly and the reference shall be conducted, and an aortal shall lie in the same manner as in case of a reference under section one hundred and eighty-nine. 39 V. c. 28, 8. lO.J See notes to sec. 195. Where there is no appeal under this section, a motion, to set asid« the award may be macie as formerly. See notes to sec. 206. A provision in a submission, that "in the event of either party disputing the validity of the award, or moving the said Court of Queen's Bench or any other Court to set aside the same, etc., was held not to be an agreement that there should be an appeal [Jfe Tp. of York v. Willson, 8 Pr. R. 313.) It seems to be now decided that the ordinary reference by consent in a cu e of Nisi Prius is within this section (Mi'(^arthv v. Arhuckle, "1 C. P. 227, -105 ; McEwan v. McLeod, 40 U. C. Q.' B. 235, 238 ; .,.j C. L. J. 69). J Motions to set aside Awards. fiei ie, [30C In cases in which an appeal does not lie under this. be 1 s. 23.] Case m eai does not Act a niotioii to Set aside an award may be made in the same manner as heretofore. 40 V. c. S An appeal lies from an award on a compulsory reference under sees. 189 and 195, and on a voluntary reference where the submission so provides (sec. 205.) See notes to sec. 195 as to the scope of such an appeal. In other cases, and perhaps even where an appeal also lies, a motion to set asiile an award upon grounds not involving a review of the arbitrator's decision, as e.g. for misconduct, may be made as for- merly. The motion is to a single Judge in Court. (See J"ud. x\ct s 28, Rule 471, and Re Moyle v. Kim/ston, 43 V. C. Q. B 307), and for a rule imi (Rohinmn v. Robinson, 35 L. T. 337 ; 24 VV. I!. (575,) unless the award is made in an action, when the proceeding is by notice of motion (Re Philipx 1009 ; Potter v. Newman, 4 Dowl., 50 1). The old (Jommon Law lerms though abolished by the Judicature Act for the purpose of regulating the sittings of the Court are pre- served as periods for the computation of the time for moving against awards {Governors of Christ College v. Martin, 3 Q. B. D., 16), as formerly they regulated the time for moving in the Court of Chancery (Re Taylor v. Bostwick, 1 Chy., Ch. 53). The submission must be made rule of one of the Divisions of the High Court (see sec. 201) before the motion can be made and such motion can only be entertained by tliat Division (Re Loniax, 28 W. li., 485 ; W. N., 1880, 51). Awards on voluntary submissions which could not be made rules of Court (see sec. 201) could not formerly be set aside by a Court of Law. The remedy was by bill in Ei^uity (now by action). All the Divisions of the High Court will now have this jurisdiction (see Ru.'arty may by notice recpiire any other party to produce, *^ 208-210. and the party so required shall produce upon the hearing of Pro'hic'ion the said appeal or motion any oriijinal l)ook, |)aper or docu-on uppeala nient in his possession which has been used as an exhibit or ^'^^ ^'^^^jJ'^Pj"^ given in evidence upon tlie reference;, and which has not awards, been tiled with the depositions. 30 V. c. 28, s. 7, last part.] riOJK All applications, otherwise than by way of appeal, ferinds with '-•1 ..« 1*^/* WIlICll ftP" to set aside any award made on a conipulsoiy rererence plication to under this Act, shall be made within the first six days of awaij must the Term next following the publication of the award to the be made, parties, whether the award be made in Vacation or in Term ; and if no such application is made or if no rule is granted thereon, oi- if any rule granted thereon is afterwards discharged, such award shall be final between the parties. C. S. U. C. c. 22, s. 165.] Taken from Imp. Act, 17 & 18 V. c. \'2n, s. 9. Coiupulsory references are under sees. 189 and 195. The applica- tion is to a single Judge, and must be made within the time limited [Re Motile v. Kimjulon, 43 IT. C. Q. B. 307). It is not necessarj that a .Jud'^e's order under sec. 189 should be made a rule of Court before applying imder this sec. to set aside the awanl ( IVatnun v Bennett, 5 H. & N. 8.U). The application is in time if made on the 6th day, though the rule be not drawn up for some days later [ib.). There is no greater power to set aside on motion an award made under a com- pulsory than (me made under a voluntary reference (/Tof/r/c v. Burge.ss, .S H. & N. 293 ; HuUjate v. Killkk, 7 H. & N. 418) ; the judgment of thf arbitrator upon both law and facts is final on both kinds of reference, except where an appeal is given under this Act {Bagiiley V. Mnrkwick, 30 L. J. C. P. 342). See also notes to sec. 206. As to when such awards may be enforced see Rule 246 (e) and sec. 210, infra. [llJlO. Any award, report, or certificate made on a com- When an pulsory reference may, by authority of a Judge, on such by orderof a terms as to him seem reasonable, be enforced at any time ^"'^^'^ ^*'^"' after six days from the time of publication or filing, not- the txpira- withstanding that the time for moving to set aside or for ^'^""*^ ^''^ appealing has not elapsed. C. S. U. C, c. 22, s. 166.] Taken from Imp. Act, 17 & 18 V., c. 125, s. 10. By a compulsory reference the matters in dispute may have been referred under sec. 189. Judgment in such case may be enforced by the same process as the finding of a jury (sec. 189), and may be entered as soon as the report is confirmed under sec. 191. Or issues of fact may have been referred or a verdict may have been taken subject to a reference (under sec. 195). Judgment in that case may be entered after fourteen days from service of a copy of i im : w.t 86 ONTARIO JUDICATi)ftK ACT, 1881. 0- L. p. Act, award (Rule 246 (f), or at any time after the time for moving s. 211 against the award has exjtired, viz., after the sixth day of the fol- lowing sittings (sec. 20l>) . The present section, seems to provide ffir a motion for leave to en- force the award before the time for moving against it lias expireil, or sooner than under Rule '24(5 (^) judgment could be entered. Enforcing Aivards OencraUy. An award made in an action under Sees. 189 and 195, is in general enforced by entering judgment in the action and issuing execution in the usual way. Juilgment must first be signed {Kevdil v. Mer- rift, 25 L. J. (I. P. 251), and is entered as formerly on the award without any motion for judgment (linrrowilide v. Jlttchi'mr, 3 B. & P. 244 ; froiner v. Chiuk, 15 M. & VV., 309 ; Lloijd v. Lnvla, 2 Ex. D. 7 ; Wallace v. Whale//, 9 Pr. II. 248) ; execution is issued in the usual way {C'nllard v. Patermm, 4 Taunt 319); but only for the sum awarded not for interest thereon {Lee v. Lhiijard, 1 Kast 401 ). Where a verdict is taken subject to an award, and by consent all matters in difi'erence are also referred, a judgment cannot be entered in the action, but resort must be had to the ordinary modes of enforcing an award on a voluntary reference, (('hit. Arch. 13th ed., 1375. See Hawke v. DiKjijan, 5 U. (J. Q. B. (;36 ; Williavitt v. McPhernon, 2 Pr. R. 49). The ordinary modes of enforcing awards made on volun- tary references are, (I) by action, (2) by attachment, (3) in England (under Imp. Act 1 anil 2 Vict. c. 1 10, ss. 18 and 19), where payment of money is awarded, l)y motion for an order to pay the amount awarded, upon which order execution may be issued (see Doe v. Amey, 8 M. & W. 565 ; Russ. 615, 617). this motion is for a rule nisi, as there is no action in C'ourt to make Rule 404 apply {He PhiUipn V. Gill, 1 Q. B. D. 78), and the rule must be served person- ally ( Winward v. Hoidt, 14 M. & W. 197). Before either of the last two modes can lie adopted, the submis- sion must have been made a rule of Court (see notes to Sec. 201). Attachment for non-payment of money cannot now be had (R. S. 0. 67, s. 10), but proceedings by attachment are applicable where the award directs the performance of an act, other than the payment of money. Proceedings by action may be adopted whether the sub- mission be by writing under seal, or not under seal, by Judge's order, order at Nisi Prius, or order of Court (see Harrison C. L. P. Act, p. 224 ; Russell on .A. wards 582). The party should elect which mode he will pursue {Stock v. De Smith, Oas. Temp. Hardwicke 106); but the adoption of one remedy does not it seems, necessarily exclude the other (Heg. v. Hemsworth, 3 0. B. 745 ; Dexter v. Fitzgihhon, 4 U. C. L. J. 43). Proceedings by attachment may be taken before the time for moving against the award has elapsed (O' Toole v. Pott, 7 E. and B. 102 >. An action is the only remedy where the award cannot be made a rule of Court, and no .Statute provides a special mode for enforcing it (Russ. 5d., ed. 522 ; See also Re Credit Valleif Ry. v. G. W. Ry. Co., 4 0nt. App. 532). Arbitrator [Sll. Upon any compulsory reference under this Act, or award^fiuhe ^P*^^ any I'eference by consent of parties where the sub- form of a mission is or may be made a rule or order of any of the spec a cabe. ^^pg^Q^ Courts of Law or Equity, and upon any reference ARBITRATIONS. 87 under this Act, in any cause in a Cotmty Court made Ity CL. P. Act, rule or order of such Court, the Retoree or Arliitrator nifiy. '' ^*' if he thinks fit, and if it is not provided to the contrarv, state his award as to tlie whole or any part thereof, in tlio form of a special case for t\u: opinion of the Court, and where an action has l)een referred, iudjifnient. if so ordered, street thoro- . . 'of may be entered accoi'ding to the opinion of the (Jourt. C. S. U. C. c. •2-2, s. Ki-J.J Taken fn.m Imj). Act, 17 & 18 V. e. 125, s. 5. 'Ihe ar)»iti'ii.t(tr is under no obiigatiDn to state a case (G'lhhon v. Parker, 5 I,. 'I'. N. S. .-).S4 ; Wouil \ H„tl,mn, f) M. & W. 074), but may decide tlie matters liimself ; and tliuie is ni> difference l)etween a professional and any uthei' arbitrator (Jupj) v. (!riii/wn, 1 ('. M. & R. iy'2',i ; Yuiukj v. Walter, 9 V'es. 3()4). Even where the reference was " with pow r to the arbitrator, if either |)arty reijuirea it," to submit questions, .>f law ; lirht, enabling not compulsory (KeMcvcii V. Guoderhdin, '20 U. (' Q. B 500). Where the reference was "subject to such points of law as will properly arise on the pleadings and evi- dence ; " lu'ld, that this rendered it imperative on the arbitrator to state legal points raised {fios.i v. Corp. of Bruce, 21 C. P. 41). A special case for the determination of a question of law ought to set forth such facts as are necessary for the determination of the question (Sheridan v. N^aijk, G Ir. (J. L. 110). [3I5J. The proceedings upon any such arbitration as last Proceedings aforesaid shall, except otherwise directed by this Act or bytrator, and* the submission or document authoi'izinff the reference, be '"'* P"*" to 1 1 • 1-1 11 1 • ii , bi; as upon conducted in like manner and be subject to the same ruU-s reference by and enactnients as to the power of the Arbritrator and of '^°'**®"*' the Court, the attendance of witnesses, the production of documents, enforcing or setting aside the award, or other- wise, as upon a reference made by consent under a rule of one of the Superior Courts or the order of a Judge thereof. C. S. U. C. c. 22, s. 163.J Taken from Imp. Act 17 & 18 V. c. 125, s. 7. The arbitrator appoints a time and place of meeting, (Fethemtorw v. Cooper, 9 Ves. 67,) and notifies the parties or their attorneys if they have any, (Allan v. Brown Tay, IT. C. R. 335 ; Re Johnson ; W/iifcti/ v. McAlahoii, 3'i 8- 213. ('. P. 4-)H). Irri'^nliiritifs in tin- iiioilu of ci>n(hu'tiiig th(^ arlntration may be wiiivL'd \>y L'oiitimiing tliu arbitration after tiiey havo been diH- covt'red (Mimi'lif v iShii/inoii, \j. K. 16 Kq. 11*20; see also notes to sec. 218). I ii' When the r2i;{. In case, ill iiuv referouce to !irl»itnition, whether mmlo a rule under this .Vet or otnei-vvi.se, tlie suomi.ssion is umde a rule cLe muy be of iiiiy Court, .such (Jourt or a Judge thereof may, at any reraittcd ti> time, atid from tiuie to time, remit the matt ferred, or tors for ' any or either of them, to the reconsideratioi. id re-detei"- recoiisidera- niiuation of the Arbitrator or Arhitratois or Umpire, as tion, &(;. , . , ,' , the case may require, upon such teiiii.s as to costs ami other- wise as to the said Court or Judge seem |)roper. C. S. U. C. c. 22, s. 164.] Taken from Imp. Act, 17 & 18 V. c. 125, s. 8. The jurisdiction under this secticm cannot be ousted by a pro- liibitory clause in the siU)misaion (Colt'iixin v. Cork d; Youarty {ChhwcU V. a, -0110.11 ft, 31 L. J. Kx. 3<)1 ; Cross v. CroKs, 13 C. B. K. ,S. 253. See Duripii v. Prnft, Hi C. B. 162, 586). Tlicre is no inflexible rule as to the time for moving. It is not necessarily too late because the time for moving aga'"st the awari had fully considered or really pronounee). Where there was a Hagrant disregard by the arbitrators of their plain duty under the H\ibmission the Cimrt refused to remit the matter to them and simplv net aside their award ( //o.s.'* v. C'or/j. o/" Bruce, •_') (J. V. 548 ; see Mnrphu v. Cotti,,,, 14 V. C. Q. 11, 4t>H.) " The matter may be remitted in part only, e. f/., to correct the name of the plaintiff wrongly described in the award (fTnmlt y. CIcinfiit.t, \ ('. B. \'2H). In Huch cane the arbitiator isas to th(^ rest, ftdivtnn offirio (Johnmu v. Latham, '20 L. J. Q. H. 238, per Krle, J.), and if he needs no assistance from the parties as to the matter re- mitted he need not summi ■ them {Morrii v. Morr'iK, G K. & B. 38H ; 27 fj. T. 103 ; /fiiwctt V. ''cmtnt-s, ,si(p. ; Jie lluutlvif v. Briiihruukc, 1 E. & B. 787), more ispeeiallv if the parties do not desire to give fresh evidence (liak-er v. Hunter, 4 D. & L. 69G.) If the award generally, and not part, is reniittfd, the arbitrators may be called ujton to hear the whole case again (see per l^ord Denman in Nkbxlln V. Warren, G y. B. G18). As to costs generally, where award remitted, see MeRae v. MrLean, 2 K. & B. 94G, ami where on fresh evidence the first award is superseded in part ( lilair v . ./onus, 6 Ex. 701). [314, Wherever the i)arties or luy of the parties to any deed or iustrmneut in writiiiy a<'ree that auv existing or future differences Ijetween them or any of them sliall be referred to arbitration, and any one or more of the parties so having agreed or any person or persons ehiimiug through or under him or them, nevirtlioless fommences an action at Law or a suit in Equity against the other party or parties or any of them, or against any person or persons claiming through or under hiui or them in respect of the matters so agreed to be referred nr any of them, then upon tiie appli- cation of the defendant or defendants, or any of them, after appearance and before plea or answer, and upon the Court or Judge being satisfied that no sufficient reason exists why such matters ought not to be referred to arbitration accord- ing to such agi'eement as aforesaid, and that the defendant was at the time of the bringing of such action or suit and still is ready and willing to join and concur in all acts neces- sary and proper for causing such matters so to be decided by arbitration, the Court in which such action or suit has been brought or a Judge thereof may make a rule or order stay- ing all proceedings in such action or suit, on such terms as to costs and otherwise as to such Court or Judge seem proper ; but such rule or order may, at any time afterwards, be discharged or varied as justice requires. C. S. XJ. C. c. 22, s. 167.] When jiiirties to any instru- ment agree that any dif- fereni;e be- tween them sliall be re- ferred to arbitration, the Court or a Judge may stay pro- cetdings on applica- tion of de- femlant an(L proof of cer- tain matters < i ■■■i'l ■^i II k ! ' f Jh' m * i\ ;j ^ ^ 'i .' !': ;•■' 1 (• ■f' •f ,1 i ^0 ONTARIO JUDICATURE ACT, 1881. O.L. 8> P. Act, 214. ilil Taken from the Imp. Act 17 & 18 Viot. c. 125, s. 11. An agreement to refer all disputes to a foreign Court is within this section {Law v. GurrM, 8 Ch. \). 2(5), and the differences may be differences of law as well as fact. ( Randei/i/er v. Hohut's, L. R. 1 C. P. 679 ; see McCoUnm v. McKinnon, 22 U. C Q. B. 175), but the question to be referred must be one arising out of the agree 'iient and reasonably presumed to have been contemplated ( yVallit v, Hirxch, 28 L. T. Jour. 159 ; Alulkern v. Lord, 4 App. Oas. 182). It has been recognized to be tlie law that parties cannot contract to refer matters in dispute between them to arbitration so as to oust the ( 't)urts of their onlinary jurisdiction, i.e., they cannot agree that no Court shall have jurisdiction in case of a breach of the contract, and either party may bring an action instead, in spite of such an agreement ; but it is legal, and often benelicial to agree that no cause of action shall arise until an arbitrator has first adjudicated on the matter and settled the sum payable. That is not ousting tha juris- diction of the Court (Scutt v. Am'ri/, 5 H.L. C. 811,) but is only im- posing a condition iirecedent to the bringing of an action. The case is different where the contract is to pay the amount payable with a subsequent collateral clause containing an agreement to refer the question to arbitration. (See Eltiott v. Hoyal Exchange Ax^i. Co., L. R. 2 Ex. 243 ; Oriipjn v. BUUni/ton, 27 U. C. Q. B. 520 ; Alexander V. Cainphf'll, 27 L.'T. 25 ; McGill v. Promlfoot, 4 U. C. Q. B. 33; Dawmn v. Pitztierald, 1 Ex. D. 257 ; Edwards v. Aberayron Soc.,Mh. T. 457.) In the latter kind of cases the Court will probably feel bound to stay the action till the amount has been settled by arbitration, as the agreement constitutes a defence (see Pompe v. Fuchs, 34 L. T. 800). In the former kind where the agrf a single ftroiLrfiior or arisen, concur in the appointment of an Arbitrator, or if umiiin- dy- any appointed Arbitrator refuses to act, or becomes incapable to'^a.I^^'^&e."'' of acting, or dies, and the terms of the document do not show when 'the ' the intention that such vacancy should not be supplied, and does not* the parties do not concur in appointing a new Arbitrator, or »''"*' ^\^°^' if, where the parties or two Arbitrators are at liberty to his place appoint an Umpire or third Arbitrator, such parties or Ar- be^supp^ed. biti"ators do not appoint an Umpire or third Ai'bitrator, or if any appointed Umpire or third Arbitrator refuses to act, or becomes incapable of acting, or dies, and the terms of the document authorizing the reference do not show the intention that such vacancy should not be supplied, and the parties or Arbitrators respectively do not appoint a new one, then and in every such instance any party may serve the remaining parties or the Arbitrators, as the case may be, with a written notice to appoint an Arbitrator, Umpire or third Arbitrator; and if within seven clear days after service of such notice, no * Arbitrator, Umpire or third Arbitrator is appointed, a judge to any Judge of either of the Superior Courts of Law, or ot "{*,'g°'"A j"* the Court of Chancery, or of any County Court, if the case fault of the be in such County Court, may, upon summons, to be taken i"'"i""' p""^ out by the party who served such notice, appoint an Arbi- . ' ^^H : 1 ■ ' ,!;' gi 1 1 ]: if 'P'i \ jH i \ ! 4i Ij 92 ONTARIO JUDICATURE ACT, 18S1. 0. L.P. Act, trator, Umpire or third ArVjitrator, as the case may be, and 88.216,217. such Arbitrator, Umpire or third Arbitrator may act in the reference and make an award as if he had been appointed by consent of all parties. C. S. U. C. c. 22, s. 168.] Taken from Imp. Act 17 & 18 V. c. 125, s. 12. An umpire is usually appointed after the arbitrators have entered on the reference and are unable to agree. A third arbitrator must be appointed before the arbitration proceeds ; and an umpire must deoide the reference, not merely the differences. His appointment m ly therefore terminate the powers of the arbitrators. For other distinctions between the two, see Bntm v. Townki/, 1 Ex. 572 ; TdHH v. Saimd^'rs, 9 Price G12; 2 Saunders, 133-7 ; Jte WUlmn V. c. 12, s. 2 ; 40 V. c. 7, Sched. B.] [334. The witnesses upon any such reference shall, unless Witnesses • i'-,. ,, . ' .1 .1 may be the parties otherwise agree or consent, be exammetl upon aworn. oath, and the Referee, Arbitrator or Umpire, or any one Arbitrator, shall administer an oath to such witnesses, or take their atfiriuations in cases where an affirmation is al- lowed by law instead of an oath. 36 V. c. 12, s. 3.] Consent may be shewn dehors the submission but cannot be infer- red from absence of objection or mere acquiescence {Be Rushbrook dt Starr, 46 Q. B. 73). . I 96 ONTARIO JUDICATURE ACT, 1881. C- LP. Act, [*^?J5. Tn case any party to any such reference by rule, SB- 225-227- oi-jei- or submission as aforesaid, is desirous of having and Coiiiiiii:^- submitting therein to and before the Referee, Arbitrator, amhie wit-' Arbitrators or Umpire, the testimony of any aged or intirm ueases. person resident within Ontario, or of any person who is about to withdraw therefrom, or who is residing without the limits thereof, the Court by which such rule or order was made, or a Judge thereof, or the Court mentioned in such sub- mission or agreement, or a Judge thereof, or if no such Court is mentioned in the submission or agreement, theii anyone of the said Superior Courts, or any Judge thereof, may upon the motion of sucli paity, and upon hearing the other parties to such reference, order tlie issue of a commission or commissions under the .seal of the said proper Court in that behalf, to a Commissioner or Commissioners, to take the examination of such ])erson or persons respectively. 36 V. c. 12, s. 4.j Notice of r^^4>. Due notice of everv such commission shall be given to be given, to the adverse pai'ty, to the end that he may cause the wit- nesses to be cross-examined. 86 V. c. 12, s. 5.] Return of [?JI41- In case the examination of any witness or wit- <;ominis8ioi). nesses taken without the limits of Ontario, pursuant to any such commission, is proved by an affidavit of the due taking of such examination, sworn before and certified by the Mayor or Chief Magistrate of the City or place where the same has been taken, and in case such commission, with such examination and affidavit thereto annexed, is returned to the Court from which such commission issued, close under the hand and seal of one or more of the Commissioners, the same shall prima facie be deemed to have been duly taken, executed and returned, and shall be received as evidence in the matter of any such reference by and before the Referee, Arbitrator, Arbitrators or Umpire, unless it is made to appear to the Court to which such examination is returned, or to a Judge thereof, that tlie same was not duly taken, or unless it is made to appear to and before the said Referee, Arbitrator, Arbitrators or Umpire that the deponent is of sound mind, memory and understanding, and living witl;in Ontario, at the time such examination is offered in evidence to and before such Referee, Arbitrator, Arbitrators or Umpire. 36 V. c. 12, s. 6.] Seals of De- ^1« I" ^hc oflficc of cvcry Dcputy Registrar and puty u.-'iH- Deputy Clerk of the Crown such seal shall be used putycierks as the Lieutenant-Governor shall from time to time Crown. direct, which seal shall be impressed on every writ anc offi( exe seal De] Pro thei s. OLD PRACTICE. 97 and other document issued out of or filed in such Sec. 52. office ; and all such writs and documents, and all exemplifications and copies thereof, purporting to be sealed with the seal of any such Deputy Registrar or Deputy Clerk of the Crown, shall in all parts of this Province be received in evidence without further proof thereof. {See Jud. Act of 1873, s. 61 ; R. S. O. c. 40, s. 3 ; c. 47, s. 6.) The English section referred to provides for the seals of the District Registries, enacts that such seals shall be used in every such registry as the Lord Chancellor may direct, and contains the same provisions as above with reference to the use of it and to its effect m evidence. Owing to doubts as to whether the effect of this section was to make an additional fee of 50 cents, payable under R. iS. C). c. 3i', s. 53, upon all filings Rule 503 pont was passed to make such fee not payable except where the former practice required a seal to be impressed. 52, Save as by this Act or by any rules of the Provision Court may be otherwise provided, all forms and existing pro- methods (as nearly as may be) of procedure which at wliere^notin- the commencement of this Act were in force in any "!°f'f't?"t . r , /-> 1 . . ,. . . , 1 • * 1 with this Act 01 the Courts whose jurisdiction is by this Act vested or uuies of in the said High Court under or by virtue of any law, general order, or rule whatsoever, and which are not inconsistent with this Act or with any rules of Court — may continue to be used and practised in the said High Court of Justice, in such and the like cases, and for such and the like purposes, as those to which they would have been applicable in the respective Courts of which the jurisdiction is so vested, if this Act had not passed. {Sci- Jud. /Vet of 1873, s. 73 ; Jud. Act of 1875, s. 21.) This section is taken substantially from Imp. Act of 1875, s. 21, which uses the word "transferred" instead of "vested." That section was substituted for section 73 in Imp. Act of 1873, and it refers to the Court of Appeal as well as the High Court. See also sees. 12, 17 (10) and 57, and the note at the beginning of the Rules. As to how far the pre-existing procedure is in force, the following Two canons two canons or rules are laid down by Brett, L. J., in Jackson v. existing^pro- Litchfield, 8 Q. B. D. 477 : —The effect of the Judicature Act is that cedure. ( 1 ) in all cases which are not provided for by the Act the proceed- ings are to be as they were before the Act, and (2) in all cases within the Judicature Act, where no special steps in proceedings are pro- vided, the proceedings are to be as nearly like as they can be to analogous proceedings, before the Act. (See also Re National Faivls 7 i ^1 ! 98 ONTARIO JUDICATURE ACT, 1881. Sec 53 As8. Co., 4 Ch. D. 307 ; Seear v. Lawmn, 29 W. R. 109 ; Boddy v. Wall, 7 Ch. D. 165 ; Fowler v. Barstow, 26 Sol. Jour. 96 ; Buatros v. rTAiif, 1 Q. B. D. 423). This is true as to rules of pleading as well ji8 in matters of practice (Evans v. Buck, 4 Ch. D. 434). First canuii In cases within the iirst canon if the appropriate proceedings, and in cases within the second canon, if the sjiecial steps, were formerly similar in Chancery and at Common Law there is no difficulty ; . but in cases where no rule of practice is laid down by the new oW pmctic'e'^ Rules, and there is a variance in the old practice of the Chancery and Common Law Courts, it has been decided, under the corres- ponding section in England, that that practice is to prevail which is considered by the Court most convenient {Neivhigyln-hy-t/ie-Sea Gaa Company v. Armstrong, 13 Ch. D., 310 ; Nurse, v. Durnford, ib., 768 ; LaOrange v. McAndrew, 4 Q. B. D., 210 ; Thomas v. Palm, 21 Ch. D., 367 ; Belly. Wilkinson, W. N., 1878, 3 ; Friendly v. Carter, 9 Pr. R., 41), apparently overruling on this point some cases which applied sec. 17 (10) to matters of practice as well as of substantial law (see Grant v. Holland, 3 C. P. D., 180, and notes to sec. 17 (10) ; see also Davis v. Wickson, 9 Pr. R. 219 ; Bank of B. N. A. v. Eddy, 9 Pr. R , 396 ; Wilson v. Cowan, 19 C. L. J., 140 ; 3 C. L. T., 216 and notes to Order 27). Though the appropriate and convenient proceedings are to be found in the practice of one only of the former systems of procedure, they may be applied in all the Divisiraetii'e abrogateil. Second canon. Supplemen- tal proce- dure from old i)r;u'licf. Rules 01 Court. 53. The Rules of Court in the Schedule to this Act shall come into operation at the commencement of this Act, and as to all matters to which they extend shall thenceforth regulate the proceedings in the High Court of Justice. But such Rules of Court and also all such other Rules of Court (if any) as may be made after the passing and before the commencement of RULES OF COURT. M this Act, under the authority of the next section, may 8*°- ^• be annulled or altered by the authority by which new Rules of Court may be made after the commence- ment of this Act. {See Jud. Act of 1875, s. 16.) Same as th^ English section referred to. 54. At any time after the passing and before the Ji|[ake'Ruio8. commencement of this Act, the Chief Justice of Ontario, the Justices of Appeal, the Chief Justice of the Queen's Bench, the Chancellor, and the Chief Justice of the Common Pleas, or any five of them, and the other Judges of the several Courts intended to be united and consolidated by this Act, or a majority of such other Judges may make any further or additional Rules of Court for carrying this Act into effect and in particular for all or any of the following matters, so far as they are not provided for by the Rules in the Schedule to this Act ; that is to say : — (a) For regulating the sittings of the High Court of Justice and the Court of Appeal, and of any Divisional or other Courts thereof respectively, and of the Judges of the said High Court sitting in Chambers : (h) For regulating the pleading, practice, and pro- cedure in the High Court of Justice and Court of Appeal ; This section authorized rules to be made by the Judges between the passing of the Act and its going into operation. It follows a provision for the same purpose in the English Act of 1875 (17), with certain differences : The English enactment required the action of Hor Majesty in Council, upon the recommendation of the Lord Chancellor, the two Lord Chief Justices of England, the Master of the Rolls, the Lord Chief Baron and the Lord Justices of Appeal in Chancery, or M\y live of them, and the other Judges or the majority of the other Judges, of the consolidated Courts ; also that the rules 80 made and all others should (like other rules) be laid before Parlia- ment. With these differences the English section corresponds with the above, including (a) and (h). (c) For the hearing of appeals from County Courts, or a Judge of a County Court, from Surrogate Courts, Stipendiary Magistrates, or Division Courts, by any two or more of the Judges of the Supreme Court, instead of the same being heard by the Court of Appeal, or a Judge thereof (as the case may be) ; and for regulating the selection • 100 See. 54. ONTARIO JUDICATURE ACT, 1881. of the Judges of the Supreme Court, who shall hear such appeals, and for regulating all matters relating to the practice on such appeals. (R. S. O. c. 38, s. 19 ; 41 Vict. c. 8, s. 3 ; 42 Vict. c. 19, ss. l6, 17 ; 43 Vict. c. 8, s. 21) ; and, This sub-section is not in the English Act. (d) Generally, for regulating any matter relating to the practice and procedure of the said Courts respectively, or to the duties of the officers there- of or of the said Supreme Court, or to the costs of proceedings therein ; (a) and every other mat- ter deemed expedient for the better attaining the ends of justice, advancing the remedies of suitors, and carrying into effect the provisions of this Act and of all other Acts now or hereafter in force respecting the said Courts, (^'ctf Jud. Actof 1875, s. 17 ; R. S. O. c. 49, s. 45, sub-s. 7.) {o) What follows this is not in the English Act, and in taken from U. S. O. c. 49, s. 45, r. 7. (2) The said Judges shall have power, subject to the approval of the Lieutenant-Governor in Council, to make rules from time to time regulating all fees payable in stamps. (3) From and after the commencement of this Act, the said Supreme Court may at any time, with the concurrence of a majority of the judges there- of present at any mee'ting for that purpose held, alter and annul any Rules of Court for the time being in force, and have and exercise the same power of making Rules of Court as is by this section vested in the existing Judges before the commencement of this Act. This sub-section provided for rules to be made after the Act should go into operation, and corresponds with the provision for the same purpose m the Imperial Act of 1873, s. 17, except that the latter re- quired that the Lord Chancellor should be one of the majority. (4) All Rules of Court made in pursuance of this sec- tion, if made before the commencement of this Act, shall from and after the commencement of this Act, and if made after the commencement of this Act, shall from and after they come into operation, regulate all matters to which they RULES OF COURT. 101 extend, until annulled or altered in pursuance of8*°*"^^^ this section. {See Jud. Act of 1875, s. 17) ; This sub-section is identical with the English enactment. (5) Subject to any rules of Court which may be made under the preceding provisions of this section the Judges of the Court of Appeal shall continue after the commencement of this Act to have all the powers which they now possess as to making Rules of Court for the regulation of the practice in appeals ; and the Judges of the High Court shall as regards matters in the said High Court have in like manner all the powers which the Judges of the Court of Chancery and of the Sup- erior Courts of Law have respectively for the regulation of the practice of the said Courts. (Sec R. S. O. c. 38, s. 56 ; c. 49, s. 45); What these powers are will be found in the sections of the Revis- «?d Statutes referred to. (6) Where any provisions in respect of the practice or procedure of any Courts, the jurisdiction of which is vested by this Act in the High Court of Justice, are contained in any Statute, Rules of Court may bt .nade for modifying such provisions to any extent that may be deemed necessary for adapting the same to the High Court of Justice, unless in the case of any Act hereafter passed, this power shall be expressly excluded with respect to such Act or any provision thereof. (See Jud. Act of 1875, s. 24). Taken from the English section referred to» which includes the new Court of Appeal as well as the High Court, and in that respect was not required here. (7) Any provisions relating to the payment, trans- fer, deposit into, or in, or out of any Court of any money or property, or to the dealing therewith, shall, for the purposes of this section, be deemed to be provisions relating to practice and proce- dure. (See Jud. Act of 1875, s. 24). Taken from the English section referred to. Governor in 56. The Lieutenant-Governor in Council may co»mcii may from time to time authorize the following persons, certain viz. : the Chief Justice of Ontario, the Chief Justice f„",ttSe.. . ; M m i\ '(': , 3 II. I V 1 Vi ii li 102 ONTAKIO JUDICATURK ACT, 1H81. Sew. 66, 56. of the Queen's Bench, the Chancellor, and the Chief Justice of the Common Pleas, to make Rules of Court under this Act ; every such appointment to continue for such time as shall be specified by order in Council, and the Judges so appointed, or any three of them, may make such Rules, and the same shall have the same effect as if made by all the Judj^es of the Supreme Court, under the precedinj^ section. (See Jud. Act of 1876, s. 17, latter part). By the Act of 1870, section 17, authority to make llules of Court whether made under the Act of 187") or the Act of 1876, waa given to any tliree or more of tlie following ])crsoii8, of whom the Lord C!haneellor must be one : the Lord ( 'hancellor, the Lord Chief Jus- tice of Kngland, the Master of the Holls, the Lord Chief Justice of the Common Picas, the Lord Chief liaron of the Exche(£uer, and four other .ludgea of the Supreme Court, to be from time to time appointed for the jmrpose by the Lord Chaucellor in writing under his hand. The Rules so made are to be laiil l)efore Parliament within forty days after they are made if Parliament is then sitting ; or if not, within forty days of the commencement of the then next ensu- ing session. The object of thi.s provision was to assign the duty to a less numerous body (nine) than all the Judges of the Sujireme Court. In Ontario the Supreme Court consists of fourteen Judges. The present Act gives the power to the Supreme Court, as was done in the Act of 187.S ; and the possible case of the number making at any time united action difficult or impossible, is pi'ovided for by the oSth section, giving the Lieutenant-Governor in Council authority to appoint for the like duty tlie four Chiefs of the Courts, or any tliree of them. The result of sections 54 and .'iS in the present Act is, that since the Act went into operation the power of making rules is as follows : (1.) Rules may be made by the Supreme Court for governing its several Divisions (sub-s. 2). (2.) Subject to any such rules of the Supreme Court, the Judges of the (lourt of Appeal may make rules for that Court, and the Judges of the High Court may make rules for the High Court. (The English Acts do not give any such power to the Judges of the High Court. The Act of '1876, s. 15, gives power to the President of the Court of Appeal, with the concurrence of the ordinary Judges of the Court of Appeal, or any three of them, to make rules as to the Court of Appeal). (3.) The Lieutenant-Governor may authorize the throe Chief Justices and the Chancellor to make rules ; an. rules ^u made are to have the same effect as if made by alH ^ ^es of the Supreme Court. Present power to make Rules 56. A Council of the Judge f the aid Supreme Court, of which due notice shall be iven to all the said Judges, shall assemble once at least in every istration of year, on such day or days as shall be fixed by the Lieutenant-Governor, for the purpose of considering the operation of this Act and of the Rules of Court Council of Judges to consider procedure and admin- EXISTING STATUTKS. 103 for the time he'm\f in force, and also the working of^*"-^'^^* the several offices and the arrangements relative to the duties of the officers of the said Courts respect- ively, and of enquiring and examining into any defects which may appear to exist in the system of proce- dure or the administration of the law in the said High Court of Justice or the said Court cf Appeal, or any other Court or by any other authority ; and they shall report annually to the Lieutenant-Gov- ernor what (if any; amendments or alterations it would in their judgment be expedient to make in this Act, or otherwise: relating to the administration of Justice, and what other provision (if any) which cannot be carried into effect vyithout legislative authority it would be expedient to make for the bet- ter administration of justice. An Extraordinary Coun- cil of the said Judges may also at any time be con- vened by the Lieutenant-Governor. (See Jud. Act of 1873, s. 75). This section corresponds with the Imp. enactment, except that, instead of the Lieutenant-( Governor fixing the day for the annual assembling of the Council, that oHice is to he performed by tlie Lord Chancellor with the concurrence of the Lord Chief Justice of Eng- land ; that, instead of the report being to the Lieutenant-(ioveruor, the report is made to one of Her Majesty's principal Secretaries of State ; and that, instead of an extraordinary (.-ouncil l)eing convened by the Lieutenant-( Governor or the (Miief .fustice of Ontario, such Council is to be convened in England by the Ijord ('hancellor. In the edition of the .Judicature Acts by Sir ^V^ T. Charley, M.P., p. 121), it is said of this section that, "it is calculated to produce the most beneHcial effects, by breaking down the barrier of prejudice which still subsists, it is to be fearetl, l)etween the sages of Equity and of the Common Law. Viewed in the light of this section the Supreme Court is a deliberative assembly." In another text-book it is said that " the Judges are con iituted a standing commission on law and justice," (Lely <& Foulkes, p. 57). 57. All statutes relating to the several Courts con- statutes solidated by this Act, and the Judges thereof, or where- oxistlnl *** in any of such Courts or Judges are mentioned or IrjlI^^'^V' '^ referred to, shall be construed and take effect, so far ''I'l'iyins to as relates to anything done or to be done after the under this commencement of this Act, as if the said High Court '^"'^' of Justice, and the Judges thereof, as the case may be, had been named therein instead of such Courts, so consolidated as aforesaid, or the Judges thereof; and in all cases not hereby expressly provided for in which, under any such Statute, the concurrence or [ill II I 'I 104 ONTARIO JUDICATURE ACT, 1881. n . Sees. 57, 58 the advice or consent of the Judge or any Judges, or of any number of the Judges, of any one or more of the Courts so consolidated is made necessary to the exercise of any power or authority capable of being exercised after the commencement of this Act, such power or authority may be exercised by and with the concurrence, advice, or consent of the same or a like number of Judges of the said High Court of Justice ; and any general or other commission by virtue where- of any Judges of any of the Courts so consoHdated may, at the commencement of this Act, be empowered to try, hear, or determine any causes or matters civil or criminal, shall remain and be in full force and effect, unless and until they shall respectively -be in due course of law revoked or altered. (See Jud. Act of 1873,8.76). Taken la eflFect from the English Act, omitting the reference therein to the newly created Court of Appeal. In Padley v. Ganiphausen, 10 Oh. D. at p. 552 ; Jessel M. K. said that the section of the C, L. P. Act, providing that notice of the writ of summons, and not the writ itself should be served en a for- eigner resident out of the jurisdiction (R. S. 0. c. 50, s. 50) remained in force and, under this section, applied to the Chancery Division equally with the other Divisions. So in Marria V. Ingrain, \'A Ch. D. 338 it was held that "the High Court of Jus- tice" should be read for "a Court of Equity " in the P^nglish Debt- ors Act of 1869 8. 4, sub-sec. 3. See also Ctarhrouyh v. Toothill, in note to sec. 9. PART V. OFFICERS AND OFFICES. JxwMn" "^ ^^* Sub'>-f- to orders of the Lieutenant-Governor Courts to be in Council, u'i officers, save as hereinafter mentioned, their respe"- who at the timc of the commencement of this Act tivedivi- shall be attached to the Court of Chancery siiall be Court. sioDs of the Supreme attached to the Chancery Division of the said High Court ; and all officers who at the time of the com- mencement of this Act shall be attached to the Court of Queen's Bench shall be attached to the Queen's Bench Division of the said High Court; and all officers who at the time of the commencement of this Act shall be attached to the Court of Common Pleas shall be attached to thj Common Pleas Division of the said High Court. {Comp. R. Sup. C. 18*^5, Order 60, R. i.) OFFICERS. 105 (2) Subject as aforesaid, the above provisions shall Sees. 58, 69. not apply to the Master in Ordinary or local Masters of the Court of Chancery, or to the taxing officers, and all these officers shall be officers of the Supreme Court and attached thereto. (3) All officers shall hold their offices by the same tenure, and upon the same conditions as to security and otherwise, as if this Act had not passed. {See Jud. Act of 1879, s. 23). (4) Where a doubt exists as to the position under this Act of any existing officer attached to any Court or Judge affected by this Act, such doubt maybe determined by Rule of Court. The Lieutenant- Governor in Council shall have the power, and (subject to any Order in Council) tie Judges of the said Supreme Court shall have power to change the official names of offices and officers, and to change and regulate the duties of the officers. {See Jud. Act of 1879, s. 24.) (5) Any officer who is removable by the Court to which he is now attached shall be removable by the Court to which he shall be attached under this Act, or by the majority of the Judges thereof. {See Jud. Act of 1873, s. yy ; R. S. O. c. 40, s. II.) 59. Subject to any Order in Council in that behalf, j[»/8^tj;^»{»^'°'' the business to be performed in the High Court of among Justice and in ♦^he Court of Appeal respectively, or in"^ any Divisional l • other ('ourt thereof, or in tlie cham- bers of any Juc'ge thereof, other than that performed by the Judges, shall be distributed among the several officers attached to the said Courts by section 58, in such manner as may be directed by Rules of Court ; and such officers shall perform such duties in relation to such business as may be directed by Rules of Court ; and, subject to such Order in Council and Rules of Court, all such officers respectively shall continue to perform the same duties as nearly as may be and in the same manner as if this Act had not passed. {See Jud. Act of 1873,3. yy, fourth paragraph.) This section is to the same ufifect as the Rnglish enactment. offlcer*. 1^* I i 106 ONTARIO JUDICATURE ACT, 1881. Sees. 60-62. Existintj; securities continued. J Oath uf officers. 60. All bonds, and securities heretofore given by Government officers and their sureties or by other persons, shall be held to be and continue binding, notwithstanding the changes effected by this Act, except in the case of any surety who, at least one calendar month before this Act goes into effect, gives notice in writing to the Provincial Secretary of his wish to be relieved of his liability. (See 32 Vict., c. 29, s. 17 (Ont.) ; 40 Vict, c. 6, s 9, (D).) 61. Kvery officer of the Court hereafter appointed before he enters upon his duties shall take and sub- scribe the following oath: "I, .\. B , of , do hereby solemnly swear that I will, according to the best of my skill, learning, ability, and judgment, well and faithfully execute and fulfil the duties of the oflSce of (as the case vuty he) without favour or affec- tion, prejudice or partiality, to any person or persons whomsoever : So lielp me God." [Sec R. S. 0., c. 40, s. 12). The form of ( )ath is taken from the Chancery Act. (2) When not convenient to a person appointed to any office to attend at Toronto to take the oath of office, the oath may be taken before the Judge of the County Court of the County in which such officer resides, or before any Commissioner authorized to administer affidavits in such County, and the oath shall be certified by such Judge or Commissioner and filed amongst the records of the Court at Toronto. In all other cases the oath shall be administered to the officer by the Judges or one or more of them in open Court. (See R S. O., c. 40, ss. 13, 14). Autliorlty < ctirtain ofncers preserved. G*4. Subject to any Rules of Court, the Master in Chancery (a), the Clerks of the Crown and Pleas (b), the Referee in Chambers (c), the Accountant (d), the Inspector of Titles (c), the Referee of Titles (e), the Local Masters of the Court of Chancery (f), and any other officers of ihe Superior Courts of Law and Equity, shall respectively have (under the said names, or any names which by or under this Act are or shall be given to them or any of them) the same judicial and other powers in respect of business in each and MASTER IN CHAMBERS. 107 every of the Divisions of the said High Court as S^o. 62. they have now in respect of the business of the Court to which they are attached; and the orders and decisions of the said officers shall be subject to appeal as heretofore, {Scf. R. S. O., c. 39, ss. 29-32 ; c. 40, ss. 8, 9, 10, 28, 29 ; c. 50, s. 189, et seq,; c. .1 10, .s. 23 ; Reg. Gen. of Feb'y, 1870, 29 U. C. Q. B., 623 ; G. O. Chy., Nos. 14, 15,34-38. 197, 211-254,495, 531- 534, 560-589, 625, 626, 633, 634, 636, 638 et seq.) (a) The Master-iii-Ortlinary is, by sec. 58 (2), sKpra, an officer of M,ister-in- the Supreme Court and attached thereto, his title being the Master- onlniary. in-Ordinary of the Supreme Court. His present powers and duties are regulated by fUiy. (len. Ord. '211 -'irA. -y'lli'iM, 584-589. R. S. ()., c. 40, s. 8, provides for his ayjpdintnient. (I)) The statutory powers of the (Jlerk of the Crown and Pleas of the Queens Bench are set fftrth l)elow. (r) There is now no such officer the fftrnier lleferoe having been uierk of C. appointed to another office, and the ^- ^^^ "(1) For empowering the Referee in Chambers to do any such thing, and to transact any such business, and to exercise any such authority and jurisdiction in respect of the same as, by virtue of any Statute or custom or by the practice of the said Court, is now or may hereafter be done, transacted or exercised by a Judge of the said Court, sitting in Chambers, and as may be specified in any such order, except in matters relating to — " (a) Granting writs of Habeas Corpus and adjudicating upon the return thereof ; " ih) Appeals and applications in the nature of appeals ; " (c) Proceedings under the sixty-first to the sixty-fifth sections, inclusive of this Act {Lnnacy procfeditKjs). " ((/) Applications for writs of arrest ; " (f) Applications for advice under 'the Trustee Acts ; " (r) Matters afifecting the custody of Children ; and " ((/) Proceedings under the eighty-fifth section of this Act (Set- tled Estates and Special Cases). " But in case all the Judges of the Court are absent from the City of Toronto, or there is no Judge si';ting in Chambers upon the day (in which any motion in respect to any of such excepted matters is returnable, the Referee may adjcaru such motion upon such terms iiH he may consider proper ; " {'?.) For conferring upon any of the Local Masters of the Court all or any of the powers which the said Court is hereinbefore author- ized to confer upon the said Referee in Chambers, and to make such regulations as to filing and keeping records, and the transmission of the same, or of copies thereof, to an officer of the Court at Toronto, as to the (!ourt may seem expedient." The Chamber business of the Court of Chancery was at tliis time regulated by the 197th of the Consolidated Orders, which was as follows : " U»7. The following business shall be disposed of in Chambers, Chy. Oen. together with such other matters as the Court from time to time Ord. 197. thinks may be more conveniently disposed of then than in full Court, viz.: " 1. For the sale of the estates of infants, under the Consolidated Statutes of Upper Canada, chapter 12, s. 50 ; ( R. S. O. c. 40, s. 76). "2. As to thfc guardianship, maintenance, and advancement of infants : PiJlH 1 'i 110 ONTARIO JUDICATURE ACT, 1881. ' Sees. 62, 63. '•^. For the administration of estates upon motion, without bill ; " 4. For time to answer or demur ; ' ' 5. For leave to amend bills ; ' ' 6. For changing the venue ; "7 To postpone the examination of witnesses, or to allow the production of further evidence ; "8. For the production of documents ; ' ' 9. Relating to the conduct of suits or matters ; " 10. As to matters connected with the raani.gement of property. "11. F'or the payment into Court of moneys, by parties desiring on their own behalf to pay in the same. " The powers which, under the authority of this Act, were conferred upon the Keferee in Ch.imbers, apjiear from Chancery Order No. 560, which is as follows : " ottO. The Referee in Cliambers is hereby empowered to do any such thing, and to transact any such business, and to exercise any such authority and jurisdiction in rtfpect of the same, as, by virtue of any statute or custom or by the practice of the said Court, is now ilone and transacted l)y a Judge of the Court sitting in Chambers except the matters following : " 1. Ciranting Writs of Habeas Corpus, and adjudicating upon the return thereto ; " 2. Appeals and applications in the nature of Appeals ; " 3. Proceedings as to lunatics under the Consolidated Statutes of UpiJer Canada, chajjter 12, section 33, and the 28th Victoria, chapter 17, sections 5 to 11, inclusive ; ' ' 4. Applications for Writs of Arrest ; " 5. Petitions for advice under the Property and Trusts Act, 29th Victoria, chapter 28, section 31 ; " 6. Applications as to the custody of Infants, under the Con- solidated Statutes of ' ^pper Canada, chapter 74, section 8 ; " 7. Applications as to Leases and Sales of settled estates ; to enable minors, witli the approbation of the Court, to ijiake binding settlements of their real and personal estate on marriage ; and in regard to questions submitted for the opinion of the Court in the form of special cases on the part of such persons as may by them- selves, tlieir committees, or guardians, or otherwise, concur therein, under the 28tli Victoria, cliapter 17, section 1 ; ' ' 8. Opposed applications for Administration Orders ; •'9. Opposed applications respecting the (iuardianship of the person an(l property of Infants ; "10. iiic ^Jarffl(!ial Ouuriliaii credit of the said " account of official Guardian ad litem" and not otherwise. (5) The surplus appearing from time to time at the credit of the said account beyond what may be required to pay the charges on the said account, shall be transferred to the " Suitors' Fee Fund Account." The " Suitors' Fee Fuinl AccDunt," whioh is an iiccouut kept by the Court of Chancery, was Hrst createil by 'JO Vict., c. 5G, s. 20 (Con. Stat. U. C, c. \'l, 8. 73 ; R. S. ()., c. 40, 8. 104). It was con- stituted by a small fee of ten cents on every bill, answer, ami de- murrer ; and it was provided, that the account shoidd " be kejtt and managed as may from time to time be directed by the Court ; and the sums at the credit of such iccount shall be api)Iied by the Court as may be necessary for the protection of infants and other j)erson8 not nui jar'm, on whose behalf jiroceedings may be had in the Court, or may by the (.!ourt be ortlered to be had in other Courts." The section of the l^evised Statute was repealetl by 41 Vict., c. 8, 8. 5, " 8») far as it directehall be lawful for the said Inspector to require such officer, or any other person or persons, to give evidence on oath ; and for this purpose the said Inspector shall have the same power to summon such officers and other persons to attend as witnesses, to enforce their attendance, and to compel them to produce books and documents and give evidence, as any Court has in civil cases. (>Sfc43 Vict. c. 8, s. 24.) The enactment referred to is that appointing an Inspector of Division Courts. Books, etc. to be pro- duced for inspection. 12 The said several officers shall, as often as re- quired by the said Inspector, produce for examination and inspection all books and documents which are re- quired to be kept by them, or which may hereafter be required to be kept by them ; and shall report to the Inspector all such matters relating to any cause or proceeding as the Inspector shall require. (>SW 43 Vi^,i. c. 8, s. 26.) (2) (3) 1 f-1 Powor.s of Coiuiiiis- gfolliTs til admin ister oaths. Bulieitont and attor- neys. 7 *i. Every person who at the commencement of this Act shall be authorized to take recognizances of bail, or to administer oaths and take affidavits and affirma- tions, in any of the Courts whose jurisdiction is here- by vested in the High Court of Justice shall be a com- missioner for the said purposes in all causes and matters whatsoever, which may from time to time be depending in the said High Court. (See Jud. Act of 1873, s. 82; R. S. O. c. 63 ; c. 80.) .SOLICITOUS. 74. From and after the commencement of this Act all persons heretofore admitted as solicitors or attor- neys of, or by law empowered to practice in any Court, the jurisdiction of which is hereby vested in the High Court of Justice, shall be called .Solicitors of the Supreme Court of Ontario, and shall be entitled to the same privileges, and be subject to the same obli- gations, so far as circumstances will permit, as if this Act had not passed. COUNTY COUKTS. 121 (2) All persons who from time to time, if this Act Sec 74. had not passed, would have been entitled to be^ti^i-ss. 2. 3. admitted as solicitors or attorneys of, or been by Seo. 75. law empowered to practice in any such Courts, shall be entitled to be admitted on payment of the fees now required for aHmission to the Courts of Queen's Bench, Common Pleas, and Chancery, and shall be so admitted by any Divisional Court, and shall be called Solicitors • of the Supreme Court of Ontario, and .shall, as far as circum- stances permit, be entitled as such solicitors to the same privileges and be subject to the same obli- gations as if this Act had not passed. (3) Any solicitors or attorneys to whom this section applies shall be deeme^i to be officers of the said Supreme Court ; and that Court, and the High Court of Justice and the Court of Appeal respec- tively, or any Division or Judge thereof, ma\- exercise the same jurisdiction in respect of such solicitors or attorneys as any one of the Superior Courts or a Judge thereof might, previously to the passing of this Act, have exerci.sed in respect of an/ solicitor or attorney admitted to practice therein. {Srr Jud. Act of 1873, s. 87.) The provisions of this section are in substance contained in the English section cited, except the reference in the second sub-section supra to the fees to be paid. 'i! ?]' ) P A R T V I. cou.N'TY (;i>ijjrrs and juoOrES. 75. Section one of chapter 22 of the Acts of the:*2Vict.22,s. Legislature of this Province, passed in the 52nd year •'"'■'"'* ® • of Her Majcnty's reign is repealed, and secti'^'>n two of chapter 15, of the Con.solidated Statutes of Upper Canada shall not be affected by the said Act or by any other enactment of the Legislature of thi>j Province heretofore |)assed and purporting to icj -jal the same. The Ontario Act, H'2 \'ict. c. 22, 8. I, purported to repeal section -, Con. Stat U. <' . c. 15, which limited the a])pointinent of County Court Judges to Barristers of at least five years standing at the Bar of Upper ('anada The Legislature, Ijy this section, has withdrawn • this assumed repeal, and left tlie matter as it stooil at the time of Confederatiiiu. ;:il 1 ' I :. ''-ri 122 ONTARIO JUDICATURE ACT, 1881. Sees. 76, 7/. 76. The Judges of the several County Courts shall Local be Judges of the High Court for the purposes of their jiuife'es. jurisdiction in actions in the High Court ; and in the exercise of such jurisdiction may be styled " Local Judges of the High Court," and shall, in all causes and actions in the High Court, have, subject to Rules of Court, power and authority to do and perform all such acts, and transact all such business as the Judges of the County Courts have now in actions in the Courts of Queen's Bench and Common Pleas ; and to do and perform such other acts and business in respect to matters and causes in and before the High Court as they may by Rules of Court in that behalf from time to time be empowered to do. (>^r R. S. (). c. 39, .s. 29; c. 40, s. 2(S ; c. 50. s. 14S ; K. Sup. C. 1875, Order 35, R. 4 ; K. Sup. C April, 1S80, R. u ; Order 421 poSL) The 42"Jiul iuul sulmequent Rulus duliiie tlie pi>wer which the County Court Judges are to have in actions in the High Court. Powers of County Courts. 77. [Every County and Division Court] shall as regards all causes of action within its jurisdiction for the time being, have power to grant arid shall grant in any proceeding before such Court such relief, re- dress, or remedy, or combination of remedies, either absolute or conditional, and shall in every such pro- ceeding give such and the like effect to every ground of defence or counter claim, equitable or legal (sub- ject to the p-ovision next hereinafter contained), in as full and ample a manner as might and ought to be done in the like case by the High Court of Justice. {:^ir Jud. Act of i873,s. 89). The English section hivf , instead of the words in brackets, the fol- lowing :-" Kvery Inferior Court which now has, or which may after the passing of this Act, have jurisdiction in equity or at law, and in e(|uity and in Admiralty respectively.'" The two sections are the same otherwise. In England the County Courts had equit- able jurisdiction under '28 and 2S> Vict., «;. tMt, ami other Acts. IJutler the corresponding section of the Kn^jlish Act. itwas held that a County Court in actions within its j.irisilii tion li.is power to grant an injunction against a nuisance, and to enforce urts corresponded. See further that Rule. Amongst (ttlier provisions Rule 80 (as to mo\'ing fr. una. judgment of appearance) and Ride 1*27 (iis to counter- launs) are k 'etjueutly made use of. As regards the Division (Jourts there is sftme conflict of au- Divisinu tli(»rity, but it may perhaps be fairly said that the weight of*^'""^'* authority is in favour of the view that this sectiim only enables "'Jl^j',',,,'' "* Division Courts to exercise the coiuplete legal and eipiitabU' juris- diction conferreil upon tlie iligli Court (see also section Sit) and does not purport to deal with details of practiije, or ap[)ly to tlie Division (.'oiirts the Rali!s of I'rojfdiire contained in the .lud. Act. (See /iiilh/iiiif A- Lixiii Co. V. Hvtnntxl, 10 V.. L J. 'I'A ; 3 C. \,. T. ;{(;i, and liitiik nf Ottiiwn v Mrl.nniililin, 10 l". L. J. 'iiU, where Rule XM) as to the cH'ect of a nonsuit, and Fletrhn- v. NulHc, I'r. R. '258 where t\e riglit to security for costs wcie held not to fall within the piuviow A the present section. See also J'ri/i>r v. <'i/j/ Offirex Co., su/ifii.) « 'vi thj other hand in Cuiuurx v. Jiinnui(/li(im, 'JO C. L. J. 10, Rule K^C. "i-o, by virtue of the ]>re8ent section, applied. In Au'fimi/ v. AfrLtiiii, 10 C. L. J. 335, the right to eounter-claira, which seems implied bj- tlie terms of Sec. 78, was held tply the general principles of practice in tlie .Superior Courts of Common Ly.w, tt» actions and pro- ceedings in tile Division Courts." Under- this stction the right to security for (osts, has been held to be a principle of practice vvhicli may lie applied by the Division C(uirt Julges (/'V(7r//rr v Nnhk, J» I'r. R. '255) witli all its ccuise- quences {ih. 3 C L. V. 300). The power of adding defendants (see Rule W,\) is not a principle of practice within tlie section {liurltirw liimjliaiit, '20 (J. L. J. 05). The power tu ajtply the High Court itraetice of examining parties before trials has been attinncd {MarNcc v. ' Willimi v. EHinU, 37 U. C. Q. K :V20; Fletrhn- v. Noh'r, 9 Pr R '258). Mar.Nvv V. Out. Jinuk, (nu/ira), as ieported, is also in favour of the p<»wer to apply the RuUw oi' the Jud. Act generally. (See also Mur- 4". X-. © I Hi 124 ONTARIO JUDICATURE ACT, 1881. flees- 77,78. '*'''.'/ ^- Gilktt, 18 C. L. J. 78). The decision in Buihtintjtk Loan Co. V. He.imrod is the other way, and in that case the discretion, if it existed, to apply Rule 330, was not exerci!>ed. In Burk v. Briltain, 19 C. L. J., 74, Kule 80 was acted upon as introducing a principle of practice, which the County Judge of Northumberland and Durham felt bound, in the exercise of a judi- cial discretion, to apply ; and this decision was ap()roved by the Junior Judge of the County of Ontario, in Smith v. Lawler, IJ) C. L J., 258; see also Connern v. Birmiiiijhavi, '20 C. L. J., 11. In a similar case the County Judge of Victoria thought it w. The Lieutenant-Governor in Council may, «;"""k"1" with the con.sent of any County Court or Surro'jate.if'.iuiif.H'' Court JudLje, commute the fees payable to him under the SurroLjate Court Acts for a fixed annual sum ; such sum not to exceed the income derived from such fees in some preceding" year ; and any sum so fixed ma)', as vacancies occur, be rescinded, or may be varied and the amount increased or diminished ; provided that in no case shall an)' Order in Council name a sum exceetlini4 the receipt'- for fees during some precedin^^ year. (2) In case of such commutation, the like sums and fees heretofore payable t(j such Jud^e shall con- tinue to be payable, and shall form part of the Consolid.'ited Revenue Fund of this Province, and shall be payable in stamps, subject to the provisions of the Act respecting" Law Stamps. (See R. S. U., c. 40, sec 16). (3) Where there is no commutation and the fees aforesaid exceed the sum of $i,oCK) in any year, the excess shall be received by the Registrar and paid over to the Treasurer of the Province for the uses of the Province. (4) The preceding sub-section shall not apply so as to reduce the amount pa)'able to the Judge in any year to a sum less than the aggregate amount of the fees pa)able to him for such year in respect of fees provided for by the Consolidated Statutes of Upper ('anada, chapter 16, schedule " B," and exclusive of the additional fees assigned to Sur- rogate Judf,es by the Act passed in the fortieth year of Her Majesty's reign, chapter 7, schedule "A" (65). (5) Out of the excess aforesaid a sum not exceeding $666 may on the authority of an Order in Council be paid to the Junior Judge of the County (if any). • I' m "} 11 r.; t »• «< 1 ]26 ONTAKIO JUDICATURE ACT, 1H81, i I Sees. 79-82 (6) This section, and the several sub-sections thereof, shall operate from the first day of January last. Rules. .flaw 80. The several rules of law enacted and declared inferio/*" ^Y ^^^'^ ^^* shall bc in force and receive effect in all Courts. Courts whatsoever in Ontario so far as the matters to which such rules relate shall be respectively cognizable by such Courts. {See Jud. Act of 1873, s. 91.) Taken from the English section. The provision of Rule 428 that in an action tried by jury the costs shall follow the event unless the .Judge otherwise orders was con- sidered to be a rule of Law and not one of practice, and therefore under the corresponding English section was held to be applicable to the Passage Court of Liverpool {Kintf v. lldwkcKworth, 4 Q. I'. D. .371 ). Qvaere, whether notwithstanding this decision it was not the intention of this section to apply in all Courts, the Rules of Law only which are enacted by sec. 17 (see Bui/ilimj cml /joaii, «tr, v. Heimrod, 19 C. L. J. 256 and Pryor v. CUn <)Jfirj>.i, 10 Q. B. D. 504). bly PART VII. MISCELLANEOUS PROVISIONS. Orders in 81. Evcry Order in Council determining the com- S'lowiinces*" mutation allowance or the salary of any Judge, Official aSbei't to*^** Guardian or other officer, under the authority of this ratitication Act, shall be laid before the House of Assembly tive Msem- forthwith, if the Legislature is in session at the date of the Order ; and if the Legislature is not then in session, the Order is to be laid before the said House within the first seven days of the se.ssion next after the Order in Council is made, (a) In case the Assembly at the said session, or, if the session does not continue for three weeks after the said Order is laid before the House, then at the ensuing session of the Legislature, disapprove by resolution of such Order in Council, either wholly, or so far as relates to any of the persons therein named, the Order in Council, so far as so disapproved of, shall have no effect from the time of such resolution being passed. 82. All books, documents, papers and chattels in papers to'' the possession of any Court the jurisdiction of which Supreme [^ hereby vested in the High (^ourt of Justice, or of any officer or person attached to any such Court as Transfer of tooks an( Liapers to Juprer Court. ATTENDANCE OF WITNESSES. ll>7 such ofificer, or by reason of his being so attachcd.Becs 82, 83- shall be dealt with by such officer or person in such manner as the High Court of Justice or the Supreme Court may by order direct ; and any person failing to comply with any order made for the purpose of giving effect to this section shall be guilty of a contempt of the Supreme Court. (See Jud. Act of 1873, s. 92.) Adapted from the F^ngliah section. 83. Upon proof to the satisfaction of the Judge C"iiii.eiiii,g "••fllllallC!!' witiiesseii presiding at the sittings at any Court of the service off"'"'"'""'" a subptena upon any witness, who fails to attend, or to remain in attendance in accordance with the require- ments of the subptena, and that a sufficient sum for his fees as a witness had been duly paid or tendered to him, and that the presence of such witness is mate- rial to the ends of justice, the said Judge may, by his warrant, cause such witness to be apprehended and forthwith brought before him or any other Judge who may thereafter preside at such sittings, to give evidence, and in order to secure his presence as a witness, such witness may be taken on such warrant before the pre- siding Judge and detained in the custody of the per- son to whom the warrant is directed, or otherwise, as the presiding Judge may order, until his presence, as such witness, shall be required, or, in the discretion of the said Judge, he may be released on a recognizance (with or without sureties), conditioned for his appear- ance to give evidence. (See 39 Vict. c. 6, Dom. ; 32 & 33 Vict. c. 30, s 26, Dom.) Thid section is not in tlie English Acts ; it corresponds with the 2nd section of tlie Dominion Act respecting the attendance of wit- nesses at criminal trials, (Mi) Vict. c. 0). So, by the C(mtrovortiMl Klcctiona Act of Ontario (U. S. O. o. II, 8. 52) it was provided that on the trial of an election petition under this Act the Judge or Judge's may, by order umier his or their hand or hands, compel the attendance of any person as a witness who appears to him or them to have V)een concerneil in the election to which the petition refers, and any person refusing to obey such order shall be gudty of contempt of Court. The remedy heretofore in civil actions has been the circuitous and inade(]uate one of obtaining an attachment against the witness for his non-attendance, or of an ae*;ion against him on the Statute, 5 Klizabeth, c..9, or of an action it Common Law (see Archbold's Practice, llth ed.. p. .350). For the English practice before tiM .Judicature Act see 1 Arch- bold's Practice, lltli ee tJourts of Appeal, Queen's Bench, ("han- R. S. »> t 41 eery, and Common Pleas jointly, or a majority of them, shall ajtpoint the days upcm wliich the (Courts of Assize, Nisi I'rius, and of Oyer and Terminer and (;encral(Ja(d Delivery, shall be held." " '.V The eittings of the Courts of Assize and Nisi I'rius in any County may, in the discretion of the Judges appointing the days thereof, or of the Judge who has been apjKjinted to preside or is presiding tiiereat, be held separate and apart from the Courts of Oyer and Terminer ami (leneral (iaol Delivery, cither on the same day or on a different day. *' 4. The Lieutenant -(Jovernor may issue special commissions of Dyer and Terminer or of (leneral Cacd Delivery for the trial of of- fenders whenever he deems it expedient. " .'). The Judges of the Courts of Queen's Bench and Common > Pleas, or of either of those Courts, may appoint Courts of Assize and Nisi Prius, to be heUl without commission, in any ("ounty in the Province, as often and at such times as they see fit for the trial of causes which are to be tried by a Judge without a Jury. " U. If no commissions are issued the said Courts or either of them shall be presitled over by one of the Chief Justices or Judges of the Superior Courts of Law or by the Chief Justice, or one of the Justices of the Court of Appeal ; or in their absence, by a retire 2i 1.0 I.I 1.25 |50 ""-'-^ m 1^ 2.5 Hi 2.0 13. 1.4 IIIIII.6 ^ VI W ^ A.^^ % Photographic Sciences Corporation 23 WEST MAIN STREET WEBSTER, N.Y. 14S80 (716) 872-4503 c 130 ONTARIO JUDICATURE ACT, 1881. 85, 86. tions raised at the trial, and his decision whenever given shall b© considered as if given at the time of the trial. The following sections on the same subject are from the Chancery Act, R. S. O., c. 40:— "23. The Judges, or one or more of them, shall also take circuits for the transaction of such business of the Court as it may be prac- ticable and conducive to the interests of suitors and the convenient administration of justice to dispose of on such circuits, and for that purpose the Court, or one or more of the Judges thereof, may hold sittings for the purposes of taking evidence and hearing causes and other matters ami transacting other business. ' ' 24. The Judges of the Court of Appeal and of the Courts of Queen's Bench, Chancery, and Common Pleas jointly, or a majority of them, shall ajipoint the days and name the County Towns at which such circuit sittings shall be held. "26. Such sittings may at the discretion of the Court, or of the Judge who is to hold the same, be held in the tJourt House of the County Town in which the same are apjjointed to be held, or in such other place in the County Town as the Judge selects ; and the Judge shall in all respects have the same authority as a Judge at Nisi Prius in regard to the use of the Court House, (laol, and other buildings or apartments set apart in the County for the administra- tion of justice. "27. Any sitting of the Court for the hearing of causes may be held by a Judge of either of the Superior Courts of Law, or a re- tired Judge of any of the Superior Courts, or by one of the Judges of any County Court in Ontario, or by any one of Her Majesty's Counsel learned in the law, appointed for Upper Canada or for the Province of Ontario, upon such Judge or ' ounsel being requested by the Chancellor, or one of the Vice-Chancellors, or by the Chief Justice, or one of the Justices of the Court of Appf'al, to attend for the purpose ; and s\ich Judge or Counsel while holding the sit- ting shall possess, exercise, and enjoy all the powers and authorities of a Judge of the Court of Chancery, and may give his decision, either during the sitting or afterwards, and such decision shall have the like force and effect and be subject to re-hearing and appeal in the same manner as the decision of a Judge of the Court of Chancery. " The principal English statutes relating to assizes are 13 Edw. I. (Stat. West 2), c. 30 ; 25 Edw. I. (Mag. Char.), c. 12 ; 31 Car. II., c. 2, s. 17 ; 1 (ieo. IV., c. 5.5 ; 3 Geo. IV., c. 10 ; 11 Geo. IV. and 1 Will. IV., c. 70 ; 2 & 3 Will. IV., c. 47 ; 3 & 4 Will. IV. c. 71 ; 2 & 3 Vict., c. 72 ; 12 & 13 Vict., c. 6 ; 17 & 18 Vict., c. 35 ; 22 & 23 Vict., Vict., 32; 46; 26 and 27 Vict., c. 122 42 & 43 Vict., c. 1. 39 & 40 Vict., c. 57 ; 40 & 41 byli^retidng ^^- Where a Judgc of one of the Superior Courts Judge. resigns or is transferred to another of the said Courts, after the passing of this Act, or where, after the com- mencement of this Act, a Judge of the Supreme Court resigns his office, and any ca.se which has been fully heard by such Judge, either alone or jointly with other Judges, stands for judgment, he may give judg- ment therein as if he were stjll a Judge of the same REPEALING CLAUSE8. 131 Court ; and any such judgment shall be of the same Sees. 87-90. force and validity as if he vver v 111 such Judge : Provided that such judgment of the Judge be delivered within six weeks after his said resignation or transfer. The Lord Chancellor has a like power. 87. Nothing in this Act, or in the Schedule thereto, ™8 Actnot rr ••11 rr i • *" api)ly to anects or is mtended to anect, the practice or pro- es of Peace heretofore or hereafter appointed, for the Tom- Nipmstng,'" porary Judicial District of Nipissing to possess any '/j^'.^jof^"" property qualification whatever, or to be a stated resi- dent within the said District. (R. S. O. c. 7, s. 7), 89. The provisions of the Prison and Asylum In- inspYtion, spection Act, chapter 224 of the Revised Statutes, as cmrt to the inspection, construction and repairing of Gaols, """^*''- shall apply to Court Houses, and the said provisions shall so far as applicable be read as if the words Courc House or Court Houses were inserted after the words Gaol or Gaols in the said Act. ill REPEAL. 90, From and after the commencement of this Kepeai. Act there shall be repealed, so far as relates to this Province : (i) Sections 15 and 16 of a certain Act of the Parlia- ment of the United Kingdom of Great Britain and Ireland, passed in the fifth and sixth years of the reign of His Majesty King William the Fourth, and chaptered 62 ; without prejudice to anything done or suffered before the said com- i 132 Seos. 90, 91. Hi Interpreta- tion of terms. l!f ' ONTARIO JUDICATURE ACT, 1871. mencement under the enactments hereby re- pealed. {See Imp. Act 22 and 23 Vict. c. 12, s. 2.) (2) Any enactment inconsistent with this Act. {See Jud. Act of 1875, s. 33.) (3) Section 3 of the Act respecting the Heir, Devisee and Assignee Commission, chapter 25 of the Revised Statutes, so far as relates to any Judge, who was not appointed until after the 7th of March, 1879, or who may be hereafter appointed. {See Journ. L. A., March 7, 1879, p. 186.) INTERPRETATION. 91. In the construction of this Act and of the Rules, unless there is anything in the subject or con- text repugnant thereto, the several words hereinafter mentioned shall have, or include the meanings follow- ing (that is to say) : " Rules of Court" shall include forms. " Cause" shall include any action, suit, or other original proceeding between a plaintiff and a defendant. '* Suit" shall include action. " Action" shall mean a civil proceeding commenced by writ, or in such other manner as may be prescribed by rules of Court ; and shall not include a criminal proceeding by the Crown. An interpleader proceeding by a sheriff is not an action but a proceeding in an action (Hamhjn v. BeMeley, 6 Q. B. D. 63 ; CoaUon V. Spiers, 9 Pr. R. 491). "Action" may include a petition (see re Atkin's Estate 1 Ch. D. 82; Finney v. Hi7ide, 4 Q. B. D. 102; re Dynevor & Dtiffryn Collieries, W. N. 1878, 199). *' Plaintiff" shall include every person asking any relief (otherwise than by way of counter-claim as a defendant) against any other person by any form of proceeding, whether the same be taken by action, suit, petition, motion, summons or otherwise. " Petitioner" shall include every person making any application to the Court, either by petition, motion, or summons, otherwise than as against any defendant. " Defendant" shall include every person served with INTERPRETATION. 133 any writ of summons or process, or served with Seo- 91. notice of, or entitled to attend any proceedings. " Party" shall include every person served with notice of, or attending any proceeding, although not named on the Record. " Matter" shall include every proceeding in the Court not in a cause " Pleading" shall include any petition or summons, and shall also include the statement in writing of the claim or demand of any plaintiff, and of the defence of any defendant thereto, and of the reply of the plaintiff to any counter-claim of a defendant. " Judgment" shall include decree. " Order" shall include rule. " Oath" shall include solemn affirmation and statu- tory declaration. " Existing" shall mean existing at the time appoint- ed for the commencement of this Act. {Seejud. Act of 1873, s. 100.) The above definitions are all taken from the section cited. • " Proper Officer" shall, unless and until any rule to the contrary is made, mean an officer to be ascer- tained as follows : — (a) Where any duty to be discharged under this Act or the Rules is a duty which has heretofore been di charged by any officer, such officer shall con- tinue to be the proper officer to discharge the same, until otherwise provided by Rule ; (b) Where any new duty is under this Act or the Rules to be discharged, the proper Officer to discharge the same shall be such officer, having previously discharged analogous duties, as may ifrom time to time be directed tp discharge the same, in the case of an officer of the High Court of Justice not attached to any Division by the President of the High Court, and in the case of an officer attached to any Division, by the President of the Division. The above interpretation of "proper officer" is taken from R. Sup. C, 1875, Order 63. k! t t I If. iil m I ill SCHEDULE. RULES OF COURT. [In addition to the Rules contained in the Schedule to the English Judicature Act, 1875, the following additional or amending Rules have been issued, viz. : Rules of Supreme Court, August, 1875 ; December, 1875 ; February, 1876; June, 1870; December, 1876 ; May, 1877 ; June, 1877 ; November, 1878 ; December, 1879 ; Anril, 1880 ; May, 1880. Most of these have, with more or less valuation, been embodied in the Schedule to the Ontario Act, which contains other rules also. The English Rules were amended and consolidated in 1883. Those new Rules came into force on 24th Oct , 1883. The Rules have all the effect of an enactment, (Longman v. Eaut, 3 C. P. D. 156,) but they and the Act, except where expressly pro- vided, (e.g. in sec. 16,) deal with procedure only and are not intended to alter the rights of parties. (See Pellas v. Neptuiie, 28 W. R. 406 ; Qihhs V. Ouild, 9 Q. B. D. 67 ; Adamson v. Adamnon, 7 Ont. App. 592 ; vV. London Ry. Co. v. G. N. liy. Co., 11 Q. B. D. 36, and notes to sec. 17, subsec. 8.) The Court does not give th iiules a pleader's construction, but one consistent with common sense. (Fdward.f v. Lowther, 24 W. n. 434.) " Rules of Court " includes forms (sec. 91.) ] " Note. — Where no other provision It made by the Act or thene Rules the present procedure and practice remain in force. " This note is the heading of the Rules in the Act, and has been held to be an express Rule (Worraker v. Pryer, 2 Oh D. 109, 111 ; Fowler v. Baratow, 26 Sol. Jour. 96). The following are the sections cf the Act as to the former practice of the Courts : — Oldpnictire "12. The jurisdiction of the High Coui't of Justice and the Court of Appeal, respectively, shall be exercised (so far as regarrTs pro- cedure and practice) in the manner provided by this Act, or by such Rules and Orders of Court as may be made pursuant to this Act ; and, where no special provision is contained in this Act or in any such Rules or Orders of Court with reference thereto, it shall be ex- ercised, as nearly as may be, in the same manner as the same might have been exercised by the respective existing Courts if this Act had not been passed." " 52. Save as by this Act or by any Rules of Court may be other- wise provided, all forms and methods (as nearly as may be) of pro- cedure which at the commencement of this Act were in force in any of the Courts whose jurisdiction is by this Act vested in the said High Court under or by virtue of any law, general order, or rule whatsoever, and which are not inconsistent with this Act or with any rules of Court — may continue to be used and practised, in the said High Court of Justice, in such and the like cases, and for such COMMENCEMENT OF ACTIONS. 135 and the like purposes, as those to which they would have been appli- Bnles 1, 2. cable in the respective Courts of which the jurisdiction is so vested, if this Act had not passed." See notes to that section. The 54th section, sub-section 6, of the Act, provides as follows : " 6. Where any provisions in respect of the practice or procedure Power o of any Courts, the jurisiiiction of which is vested by this Act in «l>an«ing the High Court of Justice, are contained in any Statute, Rules of q"„^j- Oourt may be made for modifying such provisions to any extent that may be deemed nece-sary for adapting the same to the High Court of Justice, unless, in the case of any Act hereafter passed, this power shall be expressly excluded with respect to such Act or any provision thereof." The flule 492 i)rovides that ' ' Any Rule of the several Orders in " this schedule may be cited by the marginal number of the Rule, or by the number of the Order, and of the Rule as it stands in such Order." 1 I. All actions which have hitherto been commenced Action. by writ in the Superior Courts of Common Law, and all suits which have hitherto been commenced by bill or information in the Court of Chancery, .shall be in- stituted in the High Court of Justice by a proceeding to be called an action. (Comp. R. Sup. C. 1875, Order i, R. i). The term action is deftned by the Act, (s. 91, ) to be a civil proceed- ing commenced by writ or in such other manner as may be prescribed by Rules of Ccurt, and does not include a criminal proceeding by the Crown'. As to the effect of this definition (see Darcy v. Whittaker, 33 L. T. 778 : 24 W. R. 244 ; Hamhjn v. Bctteley, 6 Q. B. D. 63). An ac^^idii may, by amenc'ment of the writ and statement of claim, be turned into an action by the Attorney-General at the suit of .1 .-elator corresponding to an information under the old practice, the sanction of the .\ttorney-(Teneral being obtained {Caldwell v. Pagham Harumr, d-c, Co., 2 Ch. D. 221 ; i^ee Rule 10, post). The title information is no longer to be used (Atty.-Ocn. v. Shrewsbury Bridge, 42 L. T. N. S. 79, W. N. |880, 23). An action by the Attorney- General can only be instituted by his sanction (see Attorney-Oeneral v. Toronto Street Railway Co., 2Chy. Ch. 165), and his fiat should be obtained and indorsed on the writ and a copy thereof. The copy should then be filed under Rule 25. See further notes to Rule 5. a 2. With respect to interpleader, the procedure and interpleader practice now used by Courts of Common Law under the Interpleader Act [R. S. O. c. 54, save as altered by any Act passed during the present Session of the Legislature] shall apply to all actions and' to all the Divisions of the High Court of Justice, and the appli- cation by a defendant shall be made at any time after 'Mr % 136 ONTARIO JUDICATURE ACT, 1881. Bole 2. I Actions i)f InterjikMiler Intn'iiltsader bv Sheriffs. Inquiries to l)(! inadu and bringin,!^ in claimants. Forum. Wlien entitl- ed or not to interplead. CoRts of Ex, Creditor, being served with a writ of summons and before delivering a defence (Comp. lb. R. 2.) The English Rule is the same except the words in brackets. Some of the more recent decisions on the subject of interpleader may be here mentioned. The provisions enabling a defendant to interplead do not interfere with the bringing of an action of interpleader ( Wentern Canada Loan (it: SavUnfH Co. V. Court, 25 Gr. 151 ; HeHder.^on v. Watnon, 23 (,ir. 355). A C!ounty Judge under Kule 422 has jurisdiction in interpleader matters they being proceedings in an action (see Coulson v. Spiers, 9 Pr. U. 491 and note to Rule 422). Interpleader proceedings by sheriffs are taken as formerly under R. S. 0. c. 54, ss. 10 el seri, except that the application is in Toronto not by summons but upon two clear days notice. (See Rules406and407.) A Sheriff should exercise no discretion as to the disposition of the goods seized by him, but should come at once to the Court otherwise he will disentitle himself to pi otection (Jionwell v. Pettigrew, 7 Pr. R. 393). He should however make some inquiry as to the nature of the claims made and inform the execution creditor of them ( Walker v. Nile,s. 3 Ohy. Ch. 59). All claimants of whom the Sheriff is aware should be brought in {Clarke v. Farrell. 8 Pr. R. 234). Division Court execution creditors are proper parties and should be brought in by the Sheriff along with Superior and County Court execution creditors (MacFie v. Hunter, 9 Pr. R. 149). Where some wi-its are in a Superior Court the interpleader appli- cation should be in the Superior Court though the seizure was under a County Court writ and before the Superior Court writ came to the Sheriffs hands {Strange v. Toronto Telegraph Co. 8 Pr. R. 1). A Sheriff was held not entitled to interplead by reason of a claimant disputing the right of subsequent execution creditors to the goods seized, where there would be no fund to satisfy such subsequent executions {Canadian Bank of Commerce v. Bruce, 2 C. L. T. 92). Where a Sheriff seized but put no bailiff in possession of the goods and then the landlord seized them for rent, held that a second seizure by Sheriff was illegal as they were in cui*todia legin and also that the validity of the landlord's claim could not be decided in Chambers {Craig v. Craig, 7 Pr. R. 209). (:roods in possession of an Assignee in Insolvency under the Insol- vent Act of 1875 cannot be taken in execution, and neither a Sheriff nor an execution creditor can sue the Assignee and oblige him to interplead, though th^ debtor may do so {McMaster v. Meakin, 7 Pr. R. 211). A Sheriff may disentitle himself to an interpleader order by not coming promptly to the Court when claims are made to the goods seized. What will amount to such laches will depend upon the circumstances of each case (see Boswell v. Pettigreio, 7 Pr. R. 393 ; Wilkins v. Peatman, ib., 84). \Vhere the claimant of the goods paid the Sheriff the amount of the execution, and the latter then withdrew ; Held, that he had no disentitled himself to relief by inteirpleader {Paris Manufacturing Co. V. Walls, 19 C. L. J. 395 ; 3 C. L. T. 601). An execution creditor is entitled to see the claimant's afhdavit in support of his claim to ascertain the b-.ma Jide-t of the claiui ami may INTERl'LE^DEK. 137 then abandon without incurring cany liability for costs ( Wilkins v. Buiie 2. Peatman, 7 Pr. R. 84) unlesa he has apecially directed the seiziire ((.'anaUian Bank of Coinmcrce v. Taxkr, 8 Pr. R. 351). The Sheritf is not in general entitlei to costs where the execution Costs of creditor abandons. (See Wilkinx v. Peatman, mip. ; Can, Bank q/* Shoritl". Commerce v. Tu.skr,; .■iuj>., C. v. D. VV. N. 1883, 207 ; Arch 12th ed. 1411 ; Churchill on Sheriffs, 183.) For rules generally as to Sheriff's costs, see Searle v. Mathewx, \V. X. 1883 176. .4. defendant wiio takes interpleader proceedings in an action is '^ inter- entitled on bringing into Court the amc unt claimed to deduct from {.''j^jaJIt^' ^ * it his taxed costs up to that period, the question as to how the costs are to be ultimately l)orne, being reserved (Searle v. Matthews, W. N. 1883, 176). Where claimants rights among themselves were in dispute they Issue. were all made defendants, an|ilica- merely a creditor of his executor or administrator to whom" he has t'<"'8 by made advances (Cnmphellv. Bell, 16 Gr., 115; Far hall v. Farhall, '''■'"''»"™- L. R., 7 Ohy. App., 123 ; Owen v. Delamere, L. R., 13 Eq., 134 ; Re l*ettee, 6 Pr. R., 157 : Eivart v. Stevens, 18 Or., 35), but a person who had advanced money to pay debts of deceased to save costs of suit therefor, was held entitled to an order in Glass v. Munsen, 12 Gr., 77 ; see also Mills v. Cottle, 17 Gr., 335 ; Strickland v. Symotis, 48 L. T., 188). Some evidence must be given that the applicant is a creditor {Re Clark, 2 Chy., Ch. 57), and if his claim is disputed he must es- tablish it by proper evidence ; his own uncoiroborated affidavit is insufficient ( Vivian v. Westb7-ooke, 19 Gr., 461). A creditor's application may, on motion in Chambers by the per- sonal representative or any person beneficially interested in the estate, be stayed upon payment of the claim and costs (Fitten v. Dawson, 3 Chy. Ch. 461). The application cannot be made by a legatee, devisee, or next of By a legatee, kin until after the expiration of a year from the death [Slater v. ^^'■'■ Slater, 3 Chy. Ch. 1 ; Vivian v. Westbrooke, 19 Gr., 461 ; Grant v. Grant, 9 Pr. R., 211). Some English cases to the contrary (see Prosser v. Mossop, W. N., 1881, 38; 29 W. R., 439; Wallis v. Waltis, 9 L. R. Ir., 511), have not been followed in Ontario (He Morleif, Tucker v. Morleij, Sept. 1882, Proudfoot, J.) Wherever a legatee if alive might apply his personal representatives may move (Simpson v. Home, 28 G"-., 1). ( )n the application of infants by their next friend the Court in its By infmits. discretion may grant an order on the mere suggestion that it would be for the benefit of the infants (Re Wilson, Lloyd and Tichbourne, 9 Pr. R. 89) ; but where the ground of motion was that strangers had got possession of most of the estate, an order was refused, there being no allegation that the executor refused to account or was col- luding, and the Court thought he ought to apply for the order if it were necessary (Re Dearintj, Mitchell v. Dcaring, 12, June, 1882, Proudfoot, J. ). If an order is granted on the application of infants anil it after- wards turns out that the proceedings were unnecessary the next friend may be ordered to pay all the costs (Hutchinson v. Sartjent, 17 Gr. 8; McAndrew y. Laflamme, 19 Gr. 193). As to applications by executors or administrators see Gen. By Hxecu- Order 471. tors, etc. Sea also as to parties generally. Gen. Ord. 58^ in note to Rule 102, and notes to Gen. Ord. 469. As to parties where inquiries respecting the real estate are re- quired, see Gen. Ord. 472. ■• ;!■: ' i|i| 5. I 140 ONTARIO JUDICATURE ACT, 1881. Bole 3- StiiyliiK' creditcirs autionti. WluMi an necessary. As to staying creditors' actions when an ailniinistration onler has been obtained (see He Laniftrif, 18 (rr., S.'JO ; lie llenihrHtm, 2t) (rr., •i{)7 ; Baileii v. Monteith,'^ C. L. T., .WD; MontcUh v. Men-hantu Hank, 4C.'L. T. 41). Where the personal estate is insufficient, if an executor sued does not so plead but allows a creditor to obtain judgment by default, the judgment may be enforced against the executor notwithstand- ing his having obtained an administration order (Doner v. ^o-is, 19 Ur., 229). A creditor, however, paid in full either by action against the executor or by the voluntary act of the latter must refund the excess above his proportionate share at the instance of other credi- tors (Chamherlen v. C/nrk; 1 Ont. 135 ; 4 C, L. 'V. 2t)). The proceedings under Oen. Orders 4()7 and <).38 are intended to apply to simple cases only. An action must be brought, where as a general rule the rights of the parties are sudi as to require pleail- ings to raise them, for example, where ccmstruction of a will was necessary (Heywuud v. Sirewriij/il, 8 Pr. I!. 79); where an award determining the matters in (juestion was set up and its validity was impeached, (Nndid v. Elliott, 1 Chy. Ch 32(1) ; where plaintiff's claim as a creditor was for damages under a covenant for good title, and that he sought to take the case out of the Statute of Limitations, (which was set up) by showing fraud in the testator (AV Mncdonald, Cameron v. Macdonald, 2 Ohy. ('h. 29) ; where the claim was for support of wife and children of deceased, raising substantially the same question as would be raised in an alimony suit, (lie Foster, Griffith V. Patterson, 20 Or. 34") ; Groom, v. Dnrlimjton, 9 Pr. R. 298) ; where the claim arose out of a contract of surety shij) (Re Cotton, 8 Pr. R. 542 ; see also fie Allan, !) Pr. R. 277 and lie Arce- deckne, 53 L. J. Chy. 102) ; or where the executor is charged with misconduct (Re Babcock, 8 (Jr. 409), that is, misconduct which would entitle the plaintiff to apply at the outset for an injunction or a receiver (Sullivan v. Harty, 9 Pr. R. 500), not misconduct ctmsisting merely in not having accounted fi>r moneys received, and which would be shewn upon the taking of accounts (Eherts v. Eberts, 25 Gr. 565, Re McMillan, 8 C. L. J. 2S5). The extra costs occasioned by proceeding by action will be ordered to be borne by the plaintiff (cases sup. and Sovereuja v. Sovereign, 15 Gr. 559). Where an action is brought, Rule 78 provides for obtaining judg- ment on default of appearance, and Rule 86 for obtaining an order for accounts, after appearance, where no preliminary question is to be determined. In(iiiirit s as Inquiries on the footing of wilful default of the executors or ad- to wilful de- ministrators are not had in England under the ordinary administration fault. decree. (See Re Symons, 46 L. T. 684 ; 30 W. R. 874, W. N. 1882, 102; Smith v. Armitage, 24: Ch. D. 727,) but such enquiry may in Ontario be had under Gen. Order 220, printed in note to Rule 331. (See Carpenter v. Wood, 10 Gr. .■]51 ; Re Allan, Po-'ock v. Allan, 9 Pr. R. 277). In Barry v. Brazill, 1 Ohy. Oh. 248, special enquiries as to what would be proper to be allowed to the applicant (the widow and ad- ministrator) for improvements made on the property, and for the maintenance of the infant children of deceased were refused, and applicant left to file a bill. ADMIN ISTKATION. Ul Where the object of an ail ministration action was really to obtain Hule 3 indirectly, what oujjht to be applied for under the provision of II S. O. c. 40, 8. 75, et tit^i]. relating to sales, etc. of infants' estates, &^^l^}^^ decree was refused (Ffuwic.k' v. Fenwkk, 'JO (ir. 381 ; see also Uoixl- 1„. n",; Appliia- mil' witlimit III' coiisity fellow V. Bannic, ilt 425). An application must not be made unnecessarily even by a creditor. Thus where a creditor was informed that there were no assets applicable to pay his claim and this turned out to be substantially correct, he was onlered to pay the costs (City Bank v. Scatcherd, 18 Gr. 185). Especially where an estate is small, an application by beneficiaries should not be made until reasonable means of avoiding suit have been exhausted (Hutchinmn v. Sanjent, 17 Gr. 8 ; McAmlrew v. Laflainmc, 19 (ir. 193; Poster v. Foster, ih., 463; Reynolds v. Coppin, ih., GiiT ; Rosebatrh v. Parry, 27 Gr. 193). Costs will not be given out of the estate unless proceedings have Costs. been commenced anil have resulted for the benefit of the estate (Bartlett v. Ward, 9 W. R. 817 ; Blain v. Terryherry, 12 Gr. 221 ; Croyijan v. Allan, 22 Ch. D. 101 ; Re Woodhall, 2 Unt. 456 ; see Re Hiruns, 26 (ir. 211), but costs of any proceedings which have resulted in benefit to the estate generally may be ordered to be paid out of the estate generally, as between solicitor and client (Re Hirons, Foster v. Hiron, 26 Gr. 211, where a l>x\^i- claim made by the administratrix, as a creditor had been succe.i. fully resisted by other creditors. (See also Bailey v. Birchall, 2 H. & M. at p. 379). See as to right of trustee defendants to costs where estate is in- sufficient to pay all costs (Dodds v. Luke, V N. 1864, 44) iucl as to the right of a residuary legatee plaintiff' where estcte i; insufficient to Tviy legacies (Re Harvey, W. N. 1884, 45). " 468. The notice of motion is to be in thi- form or to the Chancery effect set forth in Schedule U, hereunder written, and must Notice ut be served ujjon the executor or administrator. The following is the form referred to : "Notice of Motion for Administration Order, under Order 4^S. In the matter of the Estate of E. F., late of the Township of Vaughan, in the County of York, deceased. A. B. against C. D. To C. D., Executor of E. F., deceased. Take notice that A. B. , of the City of Toronto, in the County of York, Esquire (or other proper description of the party), who claims to be a creditor upon the estate of the above-named E. F., will apply to the Court of Chuncery, in Chambers, at Osgoode Hall, in the City of Toronto, on the day of , at the hour of , for an order for the administration of the estate, real and personal, of the said E. F. by the Court of Chancery ; and upon such application will be read the affidavits of (state the materials upon which the appli- cation is founded) this day filed. If you do not attend, either in person or by your solicitor, at the time and place above mentioned, such order will be made in your absence as may seem just and expedient. Dated, &c. G. H., Of tlie City of Toronto, Solicitor for the above-named A. B." See also form 12 in Appendix. motion therefor !.^!i;' ^■;')i'''i], '. ^• *ii' I i^'-.A 'ir ! L ,■ 142 ONTARIO JUDICATURE ACT, 1881. Bole 3. Chancery Order 4t)!». Order thereon. Chanueiy Order 470. Special direutiona therein. Gen. Order 552 provides for the service of 14 clear days (see Utimohr v. Marx, 19 C. L. J. 10) notice as follows : — "552. A notice of motion under Order 467 is to be served upo\i all proper parties at least fourteen days before the day named for hear- ing the application. " This Order would seem to be still in force. See Rule 88. " 469. Upon proof by a.^ davit of the due service of the notice of motion, or on the appearance, in person or by his solicitor or counsel, of the executor or administrator, and, upon proof by affidavit of such other matter, if any, as the Court re(^uires, the Court may make the usual order for the administration of the estate of the deceased, with such variations, if any, as the circumstances of the case require ; and the order so made is to have the force and effect of a deci'ee to the like effect made on the hearing of a cause between the same parties. After notice of motion given evidence may be taken by commis- sion to establish any facts necessary to be proved [Farrell v. Cruikshank, 1 Ohy. Ch. 12). The personal representative of deceased must be a party, unless there is virtually no personalty, so that an administrator ad Litem may be appointed under R. S. O., c. 49, s. 9 (see note to Rule 95, and Re Coltoii, FUher v. Culton, 8 Pr. R., 542;. An order will not be made against an executor ^ lUrliat, 25 Ch. D. 1« ; Be Prime. 48 L. T. 208); but this is not an absolute right, the Court will take into account the object of the lirst plaintiff in commencing his action, the amount of his interest and the nature of his claim, (Be Mfllor, supra,) by whom the costs will have to be borne, and con- se(iuently to whose advantage it is to keep down expense, {Br Prune, supra) ; and ceteris puribus will give the conduct to the party who has the greatest interest in conductnig them properly and econo- mically. Thus parties intert stud in preserving a residue have been pre- ferred to creditors, [Perrhi v. Perrin, 3 Chy. Ch. 4o2 ; Be Dra(j(jon. 8 Pr. R. 330 ; following P^nni/ v. Francis, 7 Jur. N. S. 248.) The plaintiff in the lirst action may be shown to be disentitled by reason of his action not being properly constituted (Be McBae, FoVftcr v. Davis, 25 Ch. D. 16, where a joint creditor of a firm was held not entitled to maintain an action for administration of the estate of a deceased partner). The conduct of proceedings may be forfeited by delay, anl may W- committed by the Master to other parties under Gen. Order 212, The administration of two estates may be consolidated ivhere in- timately connected, by reference to the parties interested and the one has claims against the other. (Be Adams, Adams v. Muirhead, 6 Pr. R. 283.) See also Chy. Ord. 59 in notes to Rule 102. "471. An order for the administration of the estate of u Chy. Order deceased person may be obtained by his executor or admin- tororadmm- istrator, and all the provisions of the foregoing orders are ^*^'^'k,°'^ '"*' to extend to applications by an executor or administi'ator. An executor can only obtain an order upon showing some neces- sity such as substantial difficulty in the administration of the estate ; he is not entitled to bring the estate into Court merely to obtain an indemnity by passing his accounts (Cole v. Glovtr, 16 Gr., 392 ; White V. Cummins, 3 Gr., 602; Barry v. Barry, 19 Gr., 458), and if it subsequently appears that an order has been obtained without real necessity he may be refused costs (Graham v. Bohson, 17 Gr., 318; Springer v. Clarke, 15 Gr., 664), or charged with the costs [McQill V. Courtice, 17 Gr., 271 ; SuUi,van v. Sullivan, 16 Gr., 94). Though he may nut come merely to get a discharge by the Court, an application was held proper where one of the legatees was absent from the jv.risdiction and the executor had taken proper steps with- out success to find him, and thus could not be discharged without coming to the Court (Be Wade, 18 Gr., 485). There is some conflict of authority as to whether a personal repre* sentativeis justitied in applying merely because the assets of the estate m^ 1 ) 1 • > I ' \ J 44 ONTARIO JUDICATURE ACT, 1881. Eule 3. ^'■^ insufficient to pay debts. In the earlier cases the order was granted {Swetnam v. Sivetnam, 6 Pr. R., 149; Be Ette, 6 Pr. R., loO) and ex parte (Re Dunleoy, V. C. Esten, Ord. Bk., 11 fo. 778) ; but in the later, refused (Re Shipman, 24 Gr., 177 ; Marsh v. Marsh, 7 Pr. R , 129 ; Re Jack, 13 C. L. J., 358). In Re Bromley (V. C. Blake, 28 Jan., 1878) an order was granted wliere assets were insuf- ficient and one creditor had sued the applicant in the Division Court, and another had written urging the applicant to apply. See also Re Draggon, 8 Pr. R., 330, where, a creditor and adminis- tratrix both applying, an order was made, and the latter given the conduct of the proceedings. If the personal representative is also a creditor, as such he may be entitled to an order (Re Marsh, 7 Pr. H., 129 ; Tiffany v. Tiffany, 9 Gr., 158). Ohy. Order "472. No accounts Or inquiries in respect of the real reai estatr^ estate are to be directed, unless notice of the application has affected. been given to the heirs and devisees interested therein, or one or more of them. Where the heir at law is made a party, and the real and personal estate are insufficient to pay debts, he is in the position of a trustee of the realty for others, and is therefore entitled to his costs between solicitor and client in priority to all other claims. (Hartrich v. Quigley, 21 Gr. 287.) If the executor is devisee of part of the realty, he sufficiently re- presents those interested in it, (Stewart v. Hunter, 14 Gr. 132). See also Fenny v. Priestman, 1 Gr. 133. Chy. OniBP " 473. After inquiries directed in respect of the personal mentaiorder ^s**^*^* ^^^ Court may, in a proper case, after notice given to as to real those interested in the real estate, or to one or more of them, estate. make a supplemental order in respect of the real estate, upon such terms as the Court sees tit. Chy. Order 474. En- quiries by Master. " 474. In taking an account of a deceased's personal estate under an order of reference, the Master is to enquire and state to the Court, what, if any of the deceased's per- sonal estate is outstanding or undisposed of; and is also to compute interest on the deceased's debts from the date of the decree, and on legacies from the end of one year after tlie deceased's death, unless any other time of payment is directed by the will. Chy. Order " 475. Every advertisement for creditors affecting the 475 Adver estate of a deceased person, which is issued pursuant to an tisement fi)r . » ' • i i i >• defendant, or as may be], the executors [or administrators] of A. B., late of , in the County of , deceased, and E. F., of, &c., solicitor, severally make oath and say as follows : I, the said E. F. [solicitor], for himself say as follows : 1. I have in the paper writing now produced and shewn to me, and marked A, set forth a list of all the claims the particulars of which have been sent in to me by persons claiming to be creditors of the said A . B. , deceased, pursuant to the advertisement issued iu that behalf, dated the day of , 18 . And, I, the said C. D., for myself, say as follows ; 2. I have examined the several claims mentioned in the paper Form of affidavit. ;■ a; N ■g Cli so i ! ADMINISTRATION. 147 writing now produced and shewn to me, and marked A, and I have compared the same with the books, accounts and documents of the said A. B. [or as may he, and state any other inquiries or investigations made], in order to ascertain, as far as I am able, to which of such claims the estate of the said A. B. is justly liable. .3. From such examination [and state any other reasons], I am of opinion, and verily believe, that the estate of the said A. B. is justly liable to the amounts set forth in the sixth column of the first part of the said paper writing marked A ; and, to the best of my know- ledge and belief, such several amounts are justly due from the estate of the said A. B. , and proper to be allowed to the respective claim- ants named in the said Schedule. 4. I am of opinion that the estate of the said A. B., is not justly liable to the claims set forth in the second part of the said paper writing marked A, and that the same ought not to be allowed with- out proof by the respective claimants, [or, I am not able to state whether the estate of the said A B. is justly liable to the claims set forth in the second part of the said paper writing marked A, or whether such claims, or any parts thereof, are proper to be allowed without further evidence]. ' • " Exhibit re/erred to in Affidavit No. 3. (Short Title.) Ijist of claims, the particulars of which have been seat in to E. F., the solicitor of the plaintiff [or defendant, or as may he], by persons claiming to be creditors of A. B., deceased, pursuant to the adver- tisement issued in that behalf, dated the day of , 18 . This paper writing, marked A, was produced and shewn to and is the same as is referred to in his affidavit, sworn before me this day of , 18 . W. B., &c. First Part. — Claims proper to be allowed without further Evidence. Ba)0 3- 4 « ao Nanie8 of Cluiiuauts. Addresses and Desciiiptions. Nature of Claim. Amount Claimed. Amount proper to be allowed. « c. « c. Second part — Claims which ought to be proved by the Claimants. T Names of Cluiinanta. Addresses and Descriptions. Nature of Claim. Amount Claimed. ' 9 c. »!, ('4. ; hiA ifi m 148 ONTARIO JUDICATUKE ACT, 1881. Chy. Order 482. Mas- ter's action thereon. Bnjie 3- *r ij^Xf l^ripaHe' the Master thinks fit so todire'ct, themak- Chy. Order *^S of the affiidavit referred to in the preceding Order, is to J81. When be postponed tili after the day^ appointed for adjudication, "* *■ and is then to be subject to such directions as the Master * may give. • ■> . " 482. At the time appointed for adjudicating upon the claims, or at any adjournment thereof, the Master may allow any of the claims, or any part thereof respectively, without proof by the creditors, and may direct such investigation of all or any of the claims not allowed, and requii'e such further particulars, information, or evidence relating there- to, as he thinks tit, and may, if he so thinks tit, require any creditor to attend and prove his claim, or any part thereof; and the adjudication on such claims as are not then allowed is to be adjourned to a time to be then fixed. As to the parties authorized tu attend on the adjudication upon creditors claims. See Rule 114, * When a claim is contested it cannot be maintained upon the un- supported testimony of the claimant ; some materiiil corroboration of his testimony must be adduced to satisfy sec. 10 of K. S. O. c. 62 (Be Finch 23 Ch. D. 267 ; Jie Jtos.% 18 C. L. J. 11. Where a creditor claims as a partner of the testator, the Master has power to entertain the claim under the )rdinary decree, take the partnership accounts and make other par jers parties (Kline v. Kline, 3 Chy. Ch. 137). Notice of proceedings in the Master's office should be given to the defendants, though they have not appeared on the hearing of the motion for administration order (see Be Pattison Jackson v. Mat- tliewH, 12 Gr. 47). 483. Notiees " 483. Notice is to be given by the executor or adminis- to creditors trator, or such other party as the Master directs — 1. To every creditor whose claim, or any part thereof, has been allowed without proof by the creditor, of such allowance, and such notice may be in the Form No. 4, in Schedule V. 2. And to every such credito)- as the Master directs to attend and prove his claim, or siic'i pnrt thereof as is not allowed, by a time to be name' l.;:"*: notice (which may be in the Form No. 5. i. ri-^tule V), not being less than seven days aftev p h notice, and to attend at a time to be therein i. ,itd, being the time to which the adjudication thereon has been adjourned ; and, in case any creditor does not comply with such notice, his claim or such part thereof as aforesaid, is to be disallowed, unless the Master thinks fit to give further time." " 48(i out of ( secute s (if any the Iteij AI>MINISTRA,TION. 149 The following are the Forma 4 and 5 i^efei;red.to in thip Order : n^e 3- " No,' i—.Votice It) Orelitor that Claim Allowed, under Order 483. (Short Title.) The claim sent in by you against the ' estate "of A.' B., deceased, Form of has been allowed at the sum o?$ , [with interest thereon at chyforder i per centi per annum, from the day of ,18 , ' and $ for coats, or as the cane may />e]. : ToMr. S. T. // part only allowed, add. — If you cUim to have a larger sum' allowed, you are hereby required to prove such further claim, and you are to file [&c., an in Form A'o. •'>]. Dated this day of , 18 . G. R., of, &c., solicitor for the plaintiff [or defendant, or as may be.] ToMr. P. R " " No. 5. — Notice to Creditor to prove his claim,, under Order 48S. (Short Title.) You are hereby required to prove the claim sent in by you against the estate of A.. B., deceased. You are to file such affidavit as you may be advised in support of your claim, and give notice thereof to , Master in Chancery [or as the case maij he], on or before the day of , 18 ; and to attend personally, or by youi solicitor, at his chambers, on the day of , 18 , at o'clock in the noon, being the time appointed for adjudicating on the claim. Dated this day of , 18 . G. H., of, &c., solicitor for the plaintiff [or defendant, or as may be]. " 484. A creditor wlio has not before sent in particulars chy. Order of his claim pursuant to the advertisement, may do so seven J^*- Tjraes tor sdidins clear days previous to any day to which the adjudication is in claims. adjourned. " 485. After the time fixed by the advertisement, no claim Chy. Order is to be received (except as before provided in case of an ad- after time™ journment), unless the Master thinks fit to give special- leave, advertised, upon application, and then upon such terms and conditions as to costs and otherwise as the Master directs. As long as there are assets undistributed, creditors may on special application be allowed to come in and prove against the remaining assets (Z?roM)rt v. Lake, 1 De G. & Sm. 144, 150 ; Re Metcalfe, May v. Hicks. 13 Ch. D. 2.S6). " 48(i. Where an order is made for payment of money Chy. Order out of Court to creditors, the party whose duty it is to pi'o- for payment, secute such order is to send to each creditor, or his solicitor *•"* carried (if any I, a notice that the cheques may be obtained from the Heijistrar ; and such notice may be in Forin No. 6 in 160 Bale 3- Form of notice to creditors. ONTAKIO JUDICATURE ACT, 1881. Schedule V, and such party is, when required, to produce any papers necessary to enable the creditors to receive their cheques." The following is the Form No. 6 referred to in this Order : " No. 6. — Notice that Cfutjuen may be received uruier Order 486. (Short TrrLE.) The cheques for the amounts directed to be paid to the creditoi« of A. B., (feceased, by an ordei* made in this [matter or] cause, dated the day of 18 , may be received at the Regintrar'a Office, in Osgoode Hall, Toronto, on after the day of , 18 . G. R., of, &c., solicitor for the plaintiff {or defendant, or a« may he]. To Mr. VV. S., &c." For " Registrar" in this Order and the notice " Accountant" will now be read. Chy. Order ** 487. Every notice by these Orders, required to be given, 487 Notices, [a unless the Master otherwise directs, to be deemed sutti- may be sent .' , . , i •/. , .,,11 , . , by mail. ciently given and served if transmitted by post, prepaid, to the creditor to be served, according to the address given by the creditor in the claim sent in by him pursuant to the advertisement, or, iu case the creditor has employed a soli- citor, tv) such solicitor, according to the address given by him." Chy. Order .^ •< 589. In administration suits, reports are as far as pos- ' "^'""^ ■ sible, to be in the form given in the Schedule hereto." The following is the form referred to : — In Chancery. Between A. B. and others, Plaintiffs, and C. D. and others, Defendants. Pursuant to the Order [or Decree] herein made, dated the day of 1871, having caused an Office-copy thereof . to be served upon {give the names of permnn nerved under Ordfr 60, and alno the names of those upon whom service has been dis- pensed with, ami the reason for dispensing with service^, I proceeded to dispose of the matters referred to me, and thereupon was attended by the Solicitors for all parties interested [or as the case may be]. [If the Master has appointed a Guardian ad litem for any of the parties, this should be so stated, and the reason why such appointment was made.] and I find as follows : — 1. The personal estate not specifically bequeathed of the testator come to the hands of the executors, and wherewith they are charge- able, amounts to the sum of $ and they have paid, or are entitled to be allowed thereout, the sum of % leaving a balance due from them [or "tiithem," as the case may he,] of f on that account. Ufnc h 2. Th that bel in the h [I/no ID Pl 3. Th( have be< account 1 4. Tht schedule due to th 5. The posed of [In thii sh< sta sh( 6, The to, and t] in the fou 7. The the said to $, allowed t\ [or toj the [If no the wit 8. I ha'i compensai said estat( After m not certify unless call Gr. 193). It is not Gargar v. /•« / " 638 467 or 4. Master ii County o it is desii and such person or notice of istration least expf ADMINISTRATION. 1*1 [If no personal estate, say: No personal estate has come to the BtiKS- hands of the executors, nor are they chargeable with any.] 2. The creditors' claims sent in pursuant to my AdTertisement in that behalf (published in issues of the newspaper called ), and which have been allowed, are set forth in the first Schedule hereto, and amount altogether to $ [If no creditors, say : No creditor has sent in a claim pursuant to my advertisement in that behalf, nor has any such claim been proved before me.] 3. The funeral expenses of the testator amounting to $ have been paid by the executors and are allowed to them i i the account of personal estate. 4. The legacies given by the testator are set forth in the second schedule hereto, and with the interest therein mentioned, remain due to the persons named [or as the case may be.] 5. The personal estate of the said testator outstanding or undis- posed of is set forth in the third schedule hereto. [In this third schedule the personal estate specifically bequeathed should be set forth separately from the other personalty out- standing or undisposed of. If there is no specific bequest, it should be so stated in the body of the report.] 6. The real jstate which the said testator was seised of or entitled to, and the incumbrances (if any ) affecting the same, are set forth in the fourth schedule hereto. 7. The rents and profits of the testator's real estate received by the said executors, or with which they are chargeable, amount to $^ and they have been paid, or are entitled to be allowed thereout, the sum of $ leaving a balance due from [or to] them of i$ i U ' If }'*'! ■■; '. I % IteiiB 162 ONTARIO JUDICATURE ACT, 1881. Bale 3k For form of judgment under this order see Form 171 in App. A. This Order does not apply where administration is sought on be- half of an infant, or where the deceased resided in the County of York, or in any County in which there is no Local Master. In such cases, if an action b^ not proper, an application must be made in Chambers at Toronto undqr Gen. Order 467. The ordinary ad- minstration order for accounts reserving Further Directions and costs, would seem to be the only order wnich the Master in Cham- bers has power to make ; but probably on application to a Judge in Chambers a judgment may be made similar to that which a Local Master may issue under this Order. The Referee in Chambers form- erly and the Master in Chambers under the present system have issued orders according to Form 175. but that there is the power to do so has not been distinctly decided. He Arnott, 8 Pr. R. 39, deci- ded under G. O. 640 seems to negative the jurisdiction. As to the parties to be served, the cases in which an application is proper, and other matters of practice see notes to Gen. Order 467, supra. In proceedings under this order there is power to direct service out of the jurisdiction (Re Allan, 9 Pr. R., 277). Powers of Master. " 639. Such Master shall have full power to deal with both the realty and personalty of the estate, the subject of administration, and shall dispose of the costs of the pro- ceedings, and shall finally wind up all matters connected with the estate, without any further directions, and without any separate, interim or interlocutory reports, or orders, except where the special circumstances of the case absolutely call therefor ; and in so doing he shall be guided by the practice heretofore had in the administration of estates upon an application made in Chambers for an administration order. Pi'ovided always, that all moneys realized from the estate shall at once be paid into Court, and that no moneys shall be distributed or ])aid out for costs or otherwise, without an order of the Judge in Chambers or the Court, and on the application for such order, the Judge may review, amend, or refer back to the Master his report or order, or make such other order as he deems proper. This Order does away with the hearing on Further Directions necessary where an order is made under Order 467. The Master, therefore, besides making the preliminary inquiries contained in the usual order under Order 467, should also deal with the matters for- merly dealt with by the Court on Further Directions (except the distribution of the estate). He should direct balances to be paid into Court by the accounting parties ; get in outstanding assets ; sell such portions of the real estate as may be necessary for the purpose of paying debts and legacies ; settle conveyances to pur- chasers ; ascertain incumbrancers and creditors, and the amount of their claims ; fix and state the compensation to be allowed execu- tors ; amount payable in lieu of duiver in lands sold ; amounts pay- able to beneficiaries ; apportion among the parties the commission in lieu of costs allowed by General Order 643, and tax their disburse- ments. He should also adjudicate on questions of costs such ag PARTITION. 153 would otherwise ai-ise on Further Direutinns.. Thua, if he ahould E«l«8- consider that any of the parties are npt entitled to costs out of the estate, or should bear the whole or any portion of the costs he should so determine. The commission under G. O. U43 is only allowed to parties entitled to costs out of the estate according to established principles. Though only one report should if possible be made, an interlocutory report on sale may be made where the administration is likely to take much time, so as not to delay a purchaser in obtaining his conveyance. The Master may, under the administration order, investigate questions of wilful default and luisuoiuluct arising on the accounts (Sullivan v. Harty, 9 Fr. R., 500). Special matters, which may be '•eported by the Master, under an order obtained under Order 4(>7, sho dd be stated, such as timber cut by and chargeable against a party {>'>t':war/, v. Flftcher, 18 (ir. 21), amounts expended by executors fcr .lie maintenance and education of infants [Stewart v. Fletcher, 16 <'v, 235). :% An order under this Order and Order 640 for partition of realty ^2>^ are sometimes combined, e. ij. when after jjiiyment of debts, or If' debts and legacies, there is still a residue of realty which it is desired to distribute. The Master, acting under Order 638 alone, could not deal with such residue but could sell only so much realty as ;night ^'• be required for payment of co^ts and del>ts, and legacies if chargeable on realty. Partition. " 640. Any adult person, who has heretofore been ciiy. Order entitled to a decree or order for th(; partition of an estate, forpartition. may, on sei'ving one or inoi-e of the persons entitled to a share of the estate of which partition is sought, with a fourteen days' notice of motion, apply to the presiding Judge in Chambers, or to the Master in the (>ounty (other than the County of York) wherein the land sought to be affected by the proceeding lies, for an order for the partition or sale of the premises in question : whereupon such Judge or Master may make such order for partition or sale, or such other order as may be j)roper, and the Master shall thereupon proceed in the least expensive and most expeditious man- ner, according to the practice now in force, for the pai'tition or sale of tlie premises, tlie ascertainment of tlie rights of the various persons intej-ested, the adding parties, the taxation and payment of costs, and othei-vvise. Provided always, that where an infant is interested in the estate, no order shall be made for partition, or sale, until such infant is j'epresented by its guardian a// litem ; and provided also that all moneys realized from the estate shall at once be paid into Court, and that no moneys shall be distributed or paid out for costs or othei-wise, without an order of the Judge in Chambers or the Court ; and on the application for such order, the Judge may review, amend, or refer back ,? '^1 154 ONTAKIO JUDICATURE ACT, 1881. Bole 8. Partition. ^ IF . to the MuHter his re[)ort or order, or make such other order an he deerriH proper. This Onler only authorizes an application by an adult, and does not apply where the lands are in the County of York or a County in which there is no l^ocal Master. The Master in Chambers has no jurisdiction under this Order (see Re Arnott, 8 Pr. K. 3«)). Proceedings on behalf of an infant under this order are irregular {Brown v. Brown, 9 Pr. II., 245) ; an action must in such case be brouglit (see Re Ilardmnii, Baane.U v. Biilfen, 16 Ch. D., 360 ; iVaitH V. Binyley, 30 W. R., 6{»8). The correction of the report of Brown V. Brown, (mipra), given 2 C. L. T., 329, to the effect that the pro- ceedings were commenced by writ and were hehl irregular, does not seem to have been quite full eiiout^h. The proceedings were regu- larly enough commenced by writ but a judgment was then issued under tltis Order in the action, by the Local Master, to make which was held to be beyond his powers. By analogy to proceedings for adminiutration, and under the Par- tition Act (H. S. O., c. 101, s. 6), an application should not, with- out special reason, ))e made until after six mouths from the death {Grant v. a rant, 9 Pr. li., 21 1 ; 18 C. L. J., 99) Upon special circumstances being shown in favour of the refer- ence being to a Master other thau the Master of the County in which the lands lie, the order may so provide. In such case the application should be made to a Judge in Chambers (Br. Arnott, 8 Pr. R., 39). The jurisdiction under this Order is only intended to be exercised in simple cases. Where questions of title or the like are raised, an action must be brought (MacdonneU v. AfcGilliett, 8 Pr. K. 339 ; see Beiinetto v. Bennetto, 6 Pr. It. 145). Thus where one of the alleged joint owners claims title by virtue of the Statute of Limitations (Re. McMillan, 8 Pr. R. 546), or a stranger in possession claims title to the lands ( Yonwj v. Wrhiht, 8 Pr. R. 198), no relief will be given under this Order. Where the applicant knew when moving that the defendant was in possession claiming title to the exclusion of the co-heirs, the plaintiff was ordered to pay the costs of the matter {Hopkins v. Hopkinn, 9 Pr. R. 71). A tenant for life may have partition (Lalor v. Lai or, 9 Pr. R. 455). Aa to whether a dowress is entitled, see ib. and Body v. Body, 1 C. L. T. 546. Partition of lands not patented was refused (Abell v. Weir, 24 Gr. 464). A person against whom an account is desired should be served with notice of the application (see Hopper v. Harrison, 28 Gr. 22. Persons interested, but not served with notice of the motion, should be served with the judgment or order under Gen. Order 244. As to determining whether partition or sale should be directed see Blasdell v. Baldwin, 3 Out. App. 6 ; Steven v. Hunter, 14 Gr. 541 ; Wood v. Wood, 16 Gr. 471. A motion for distribution is made before a Judge in Chambers on a Monday after the report has become confirmed ; and questions arising on the report may be then reviewed without an appeal, such as amount to be allowed in lieu of dower and the apportionment of the commission (?ee Dodge v. Clapp, 8 Pr. R. 388). APPEALS FROM MA8TEK8. 106. "641. When, after an order huH been made under Order Bda S. 640, lands are discovered in another County, an application ciiy. Order may be made to a Judge in ( *hjiinbers for the partition or ^^j^ ^"' sale of such lands under the order formerly made, and, Hevurai where two or more orders have been made by Mastera in^"'"" (iitrerent Counties, an application may be made in Chu,inbers for an order as to the conduct of the future proceedings. Thia Order was held to apply where lands in another County were known at the time of the application under Order 640. and the costs of the motion were allowed over and above the commission under Order 642 (Clark v. ('lark, 8 Pr. R. 156). See Teali' v. Teule, W. N. 1882, 8.3, as to consolidation of partition actions. An application to consohdate two or more suits brought in ilitferent Counties is under this 1 (il m , i \ s 158 ONTARIO JUDICATURE ACT, 1881. tf44 3nle8 3, 4. '' 644. When two or more suits are instituted for admin- Chy. order istration, or partition, or sale, the Judge may, in his discre- tion, disallow all, or any, of the costs of any suit or suits, which in his opinion has or have been unnecessarily prosecuted. " 645." Printed in note to Rule 78, p. 213. " 646." Printed in note to Rule 78, p. 213. " 647." Printed in note to Rule 78, p. 214. " 648." Printed in note to Rule 78, p. 214. •'* 641). Every decree or order hereafter made by the Cpurt, whether the service of the bill or other proceedings on the defendant has been personal, by publication, or otherwise, shall be absolute in the first instance, unless the Court shall otherwise order. Chy. Order •«4». Chjr. Order 460. 4 Other proceedings. " 650. The Local Masters and Deputy-Registrars shall enter in a book or books, kept for that purpose, all decrees, or orders, made by them, and they shall, on the conclusion of every suit, or matter, annex together all the pleadings and papers, filed with them in such suit, or matter, and transmit the same to the Clerk of Records and Writs, who shall duly enter and file the same." 4. All other proceedings in and applications to the High Court may, subject to these Rules, be taken and made in the same manner as they would have been taken and made in any Court in which any proceeding or application of the like kind could have been taken or made if the Act had not been passed. [In case a defendant is let in to defend, under the i ith section of the Revised Statute respecting Absconding Debtors, the actions shall proceed as in ordinary cases under the Act, subject to the provisions in other respects of the said Revised Statute.] (Comp. R. Sup. C. 1875, Orderi, R. 3; R- S. O. c. 68.) The lirst clause of this Rule corresponds with the English Rule. Proceedings commenced in Chancery by petition (see Be Gardner's Trusts, 10 Ch. D. 29) and proceedings relating to arbitrations under 9 and 10, Will. III. c. 15 (Be Phillips & Gill, I Q. B. D. 78), and motions to quash by-laws under the Municipal Act ( Turner v. O'Con nor, Osier, J. 6th June, 1882, ) are not affected by these liules and may therefore be brought as formerly. The practice of Mr. Justice Osier has been, as stated in Turner v. O'Connor, to hear motions to quash by-laws iDrought on, either by rule nisi, returnable four days after service, or by two clear days notice of motion under Rule 407. WRITS OF SUMMONS. WJ The practice and pleadings in replevin have been held to be within Bulw\ 6- the exception made by this Rule (Campan v. Litcas, 9 Pr. R. 142), and a statement of claim filed in such an action was therefore set aside and the plaintiff allowed to declare according to the old practice. The words "subject to these Rules" have the effect of applying to all cases the practice under the Judicature Act in matters of ordinary procedure e.g. length of notice of trial in a replevin action, will be iO days as in actions commenced by writ of summons ( Wallace V. Cowan, 9 Pr. R. 144). Motions will bo made and judgments signed under the new practice in all cases {Campan v. Lucas, 9 Pr. R. 143). See further notes to Rule 5 and sec. 52 of the Act. Where in an action against an absconding debtor a writ of attach- ment had issued and by consent a solicitor entered a common appearance for defendant. Held, the defendant having been let in to defend within sec. 11 of the Absconding Debtors' Act, the plaintiff might under this Rule plead as in an ordinary action ( Fenmck v. Bc^er, 3 C. L. T. 42). O R D E R 1 1. WRIT OF SUMMONS AND PROCEDURE, &c. I. Every action in the High Court shall becom-wnt. menced by a writ of summons, which shall be indorsed with a statement of the nature of the claim made, or of the relief or remedy required in the action, and specifying the Division of the High (^ourt to which the action is assigned. (Comp. R. Sup. C. 1875, Order 2, R. I ; R. Sup. C. 187s, Schedule A ; R. S. O. c. 50, ss. 3, 29 et seq. ; c. 6y, s. 8 et seq. ; c. 137.) Corresponds substantially with the English Rule. In case a mandamus, or an injunction, or a receiver is claimed, the plaintiCT ought to endorse his writ accordingly, though, if the necessity for such relief arises incidentally in the course of the action, the Court has power to give the relief even if a claim for it was not indorsed on the notice. (See Colehourne v. Colebourne, 1 Ch. D. 690; N'orton v. Oover, W. N., 1877, 206). By Rule 11, a defective indorsement may be amended. A general power of amend- ing proceedings is given by Rule 474. In an action for administration, the writ should show that such is the nature of the action, by being entitled ' ' in the matter of the estate of" (Re Jones, Eyre v. Oox, 24 W. R., 317). All actions at law formerly commenced by writ, and all suits for- merly commenced by bill or information, are now instituted by an "action" (Rule 1). By the present Rules such actions are to be commenced by writ of summons. In Robertson v. Coulton, 9 Pr. R. 16, Osier, J., expressed the opin- ion that actions formerly commenced by writ of capias must now be commenced by writ of summons. This view was not concurred in by Cameron, J., in Vetter v. Cowan, 46 U. 0. Q. B., 435, 441, but . t M A m 160 ONTARIO JUDICATURE ACT, 1881. Aalea6-7 6 Costs of im proper form. 7 Form of Writ. ' he determination of the point was not necessary in either case, t seems likely tbat under this Rule a writ of summons must be employed to commence an action ; but it is clear that a writ of capias may be issued aa formerly, either before ( Vetter v. Cowan, supra) or after (RohtrtHon v. Cou/ton, unpra), action brought, as a proceeding ancillary to an action, and not abolished by the Jud. Act (see 2 (J. L. T., 69). It has not yet been determined how far R. 8. O., c. 55, is affected by the Jud. Act, or whether an action of dower is now to be com- menced by an ordinary writ of ijummonr . As that action was, under R. S. U., c. 55, commenced by writ of summons, it would seem that this Rule applies as M'ell as Rules relating to pleadings and the ordinary proce16 ; 47 L. T., 446 ; 18 C. L. J., 161.) A writ for service on persons domiciled within was served on them without the jurisdiction. Leave was given to issue nunc pro tunc a concurrent writ for service out of the jurisdiction, and to amend the copies served in accordance therewith {Metcalfe, v. Davin, 6 Pr. R., 275). 8 4 [Where there is jurisdiction in any of the .^^[.'j-yg",^^ Superior Courts to proceed with a suit on a service senile out out of Ontario], the writ of summons to be so served uoii. (a) shall be in form No. 2, in Appendix (A) hereto, with such variations as circumstances may require. [Where a defendant is not a British subject, and is not in British Dominions, notice of the writ of summons is to be served in lieu of service of the writ, and] such notice shall be in form No. 3 in the same Part, with such variations as circumstances may re- quire. (Comp. R. Sup. C. 1875, Order 2, R. 5, schd., forms 2, 3 ; R. S. O., c. 50, ss. 48-53 ; G. O. Chy., No.s. 90-102 ; Eng. C. L. P. Act of 1852, s. 19). The first clause in brackets is not in the English Rule, but does not vary the effect of the Kule. At («) the English Rule has the words "or of which notice is to be given out of the jurisdiction." In other respects the Rule correspontls substantially with the English Rule. The second clause in brackets ia adopted from R. S. 0. c. 50, s. 45, and is not in the English Rule. Under section 19 of the 0. L. P. Act of 1852, in England service on a foreigner resident out of the jurisdiction was directed to be made in a similar way, and that enactment has been held to be in force in England since the Judica- ture Act ( Wentman v. Akbithoiatjet, E. M. Suickarefahrik, 1 Ex. D. 237, Beddimjton v. Bvxldlnntun, 1 P. D. 426) ; and to apply to the Chancery Division equally with the other Divisions {Re Howard Fadley v. Camphaunen, 10 Ch. D. 550). As to the form of alfidavit of service (see Bustros v. Buatros, 14 Ch. D. 849, and Appendix C, Form No. 32). Where a writ for service on a foreigner out of the jurisdiction wasi served on him while within the Jurisdiction on a temporary visit, a, judgment signed by default of appearance was held regular (Snow v^ Cole, 7 Pr. R. 162). 9 5. Every writ of summons and every other writ Date and shall bear date on the day on which the same is issued, ^*="*'^"' W""** 11 i ! i \\ f Ml I I I m . -1 hi 162 ONTARIO JUDICATURE ACT, 1881. Rules 9, 10 and shall be tested in the name of the President of the High Court of Justice, and shall require the de- fendant to appear thereto in ten days after service, if the service is to be made in Ontario. (Comp. R. Sup. C. 1875, Order 2, R. 8). Corresponds substantially with the English Rule. I'he writ is in England tested iu the name of the Lord Chancellor ; or, if the office of Lord Chancellor is vacant, in the name of the Lord Chief Justice of England. In Ontario by section 3, subsection 7 of the Act, the President of the High Court is ' ' that one of the Presidents of the Queen's Bench, Chancery and Common Pleas Divisions, who, for the time being, is first in order of seniority. " Every writ must have the full title of the action, including the names of all the defendants, but need only be directed to the par- ticular defendant or defendants intended to be served with it. Where different times have to be mentioned for different defendants to appear, the proper course is to issue concurrent writs ( Traill v. Porttr, I L. R. Ir., 60). A writ issued after the cause of action accrued, but on the same day is good. The issue of the writ is the act of the party and not of the (Jourt, and the Court will in such case inquire as to the actual time, and not refer the act to the first moment of the day (€larh v. Bradlaiujh, 7 Q. B. D. 151, 8 Q. B. D. 63 ; see Lord Dorchester v. Petrie, 3 Doug. 273 ; Rob & Joseph Dig. 3,750). The form of writ ( No. 1 ) notifies the defendant to appear within ten days after service "inclusive of the day of such service" and the time is to be so computed (see Cornish v. Maviiiiig 18 C, L. J. 76, 143 ; 2 C. L. T. 105, and Rule 456). See notes to Rule 10 as to irregiilarities in the teste of writs. Ameiidnieiit 6. The Court or a Judge may, at any stage of the of Writ. proceedings, allow the plaintiff to amend the writ of summons, in such manner and on such terms as may seem just, {^ee R. Sup. C, Feb.. 1876, R. 6.) Identical with the English Rule. The plaintiff will have to pay tho costs of the amendment. An order to amend has been held to be necessary, even though the writ has not been served {per Lush, J., Anott, 60 L. T. Jour. 32 ; 1 Char. Ch. Ca. 34), and this decision has been followed by Mr. Dalton in Chambers (see Glohe, 6th Oct., 1881, and form 75 in App. ); see contra under tlie former practice Worthington v. Boultan, 6 Pr. R. 68. When a statement of cLiim has been deliveretl an amendment of the indorsement on the writ seems to be unnecessary {Large v. Large, W. N. 1877, 98 ; Johnson v. Palmer, 4 C. P. D. 262 ; but see Cony- heare v. Leivis, W. N. 1881, 31 ; 44 L. T. 242 ; 29 W. R. .391 ; see also Pe Jones, Eyre v. Cox, 24 W. R. 317). An action may, by amendment of the writ and statement of claim, be turned into an action without prejudice to a pending motion in the action, the neces- sary sanction of the Attorney-General being obtained {Caldwell v. Pagham Harbour Reclamation Company, 2 Ch. D. 221). INDORSKMENTS ON WRITS. 163 Further proviaioii for the amendment of the indorsement on the Bnlea 10, 11 writ is made by Rule 11. When a writ has been amended so as to introduce a new claim it must be served in the same way as the original (The Casdupeia, 4 P. D. 188). Irregularities may be amended either on motion by the plaintiff, or leave to amend may be granted where the defendant moves to set aside the writ. The following irregularities have been allowed to be amended : — A writ signed by a Process Clerk issued after the appoint- ment of his successor (StKvennon v. Williams, 7 Pr. R. 358) ; a writ issued without the signature of the Process Clerk (Lahadie v. Darling, 7 Pr. R. .355) ; a writ tested in the name of a retired Chief Justice after the appointment of his successor had been gazetted, but before he had taken the oath {Nelson v. Jioy, 3 Pr. R. 226) ; a writ tested in the name of a Lord Chancellor after his resignation and the appointment of his successor (Pleasants v. East Dereham, ivision, and in other cases, the officer who issues the writ will issue the certificate of Uh peiidtnn, in the manner provided in R. S. O c. 111,8. 49, and R. 8. O. c. 4U, 88. 85) anil 90. Where a /w pciiitciixia required tlie plaintiff" should be more precise than iu ordinary cases and should by the indorsement deline generally the grounds of his claim to an interest in the laud, (Shcppardv Kemmbj, 20 C. L. J. 118). Where the title to land is not in question in the action, e. g. in an alimony suit ( White v. Wli'itc, (5 Pr. it. 208^ it is improper to issue a /«.s pciuhtis ; and if this api»ears from the indorsement on the writ, the registration may l)e vacated on motion before the Master in ( 'hanibers (ShiKir^tloh v. Brmon^ Referee in Chambers, 5 June, 1878), and need not be referred by the Master in Chambers to a J ui\gti {S/teppard v. Kenneihj, Sup.). (See Hep- burn V. FuUun, 26 Gr. 597 ; Robinson v. Fickei-iny, 50 L. J. Chy. 527.) 12 2. The indorsement of claim may be to the effect imiorsemcnt of such of the fomis in Part II. of Appendix(A.) hereto as shall be applicable to the case, or if none be found applicable then of such other simil.irly concise .form as the nature of the case may require. (R. Sup. C. 1875, Order 3, R. 3.) Identical with the English Rule. 13 3. If the plaintiff sues in a representative capacity, acUon is in or if the defendant or any of the defendants is sued uvecaimi'ity i" ^ representative capacity, the indorsement shall shew, in manner appearing by the statement in Ap- pendix (A) hereto. Part II„ sec. V., or by any other statement to the hke effect, in what capacity the plaintiff or defendant sues or is .sueJ. (Comp. R. Sup. C 1875. Order 3, R. 4). Identical with the English Rule. SPKCIAL INDORSBMBNTS. 165 In Worrai-er v. Prifer, 2 Ch. D. 109, it was held by Jesael, U.K., Rules 13,14 and in Be Royle, 5 (Jh. D. 540, by Bacon V.O., anil in Adcock v. Ptters, W. iV, 1876, 139; 2 Charl. NO. (Court) 288, by Malina, V. C, that in an ordinary creditor's action for administration of the real and personal bstatu of a deceased debtor, the action must be by the plaintiff on behalt of himself and all the other creditors ; and the writ must be indorsed accordingly. In the earlier case of Cooper v. Btisseft, 1 Ch. I). GDI, Hall, V. C, had taken a contrary view. In the later case of Ni/re v. Cox, 24 W. K. 317, Jeasel, M. R., said that when it appeared in the statement of claim that the plaintiff was suing on bulialf of himself and other creditors, it was not neces- sary to amend the writ by the insertion of those words. Where a judgment is applied for by motion under the Chancery Orders 4(37, (3:i8, &c., it has not beeii the practice to require the style of the cause to shew that the suit is on behalf of all the creditors, &c. See also Be Blount, 27 W. K. 865. A sta^amjiit of the representative capacity in wliich a ;)laintiff sues cannot lie supplied from allegations in plaintiff's affidavits on a motion (Hi/neii V. Fisher, 4 Ont. 78). 14 4. In all actions where the plaintiff seeks merely to Special recover a debt or liquidated demand in money payable *'^''""'""*°* by the defendant with or without interest — arising upon a contract, express or implied, as, for instance, on a bill of exchange, promissory note, cheque, or other simple contract debt, or on a bond or contract under seal for payment of a liquidated amount of money, or on a statute where the sum sought to be recovered is a fixed sum of money or in the nature of a debt, or on a guaranty, whether under seal or not, where the claim against the principal is in respect of such debt or liquidated demand, bill, cheque or note, or on a trust, — the writ of summons may be specially indorsed with the particulars of the amount sought to be recovered, after giving credit for any payment or set-off. (R. Sup. C. 1875, Order 3, R. 6 ; Comp. R. S. 0. c. 50, s. 19.) Identical with the English Rule ; and the Rule substantially cor- responds with s. 19 of the C. 1. P. Act, R. S. O. c. 50, but differs in two points ; First, the Rule includes the case of a liquidated sum payable on a trust, which the former section did not ; Secondly, there are no words in the Rule, as there were in the section, limiting its operation to cases in which the defendant resides within the juris- diction. It will be observed that the use of this indorsement is optional ; but if used it will entitle the plaintiff' to final judgment in case of default of appearance, and even notwithstanding appear- ance, unless the defendant can satisfy a Judge that he has a defence or ought to be allowed to defend (see Rule 80). For forms of special indorsement see Appendix A. No. 7. Such forms must be substantially followed to entitle plaintiff to sign judgment under Rules 72 or 8'>, but a merely formal difference will not prejudice (per Archibald, J., Anon, W. N. 1876, 53). !■; 166 ONTARIO JUDICATURE ACT, 1881. Rule 14i Where a writ had been Herved before the comineacement of the Act it was held that there could be no indorsement under this Rule, so as to enable the plaintiff to si^ judgment under Rule 80 {Anon. 1 Oharl. Ch. Ca. 45). There are, however, two decisions to the con- trary ; see W. N. 1875, 2(50, 1 Charl. Ch. Oa. 49; and W. N, 187G, 12, 1 Charl. Ch. Ca. 55, and notes to Rule 80. As the object of the special indorsement is to give the defendant an opportunity of avoiding further proceedings by payment of the debt, as well as to entitle the plaintiff to a summary remedy, the in- dorsement must give sutHcient particulars to enable the defendant to satisfy his mind whether he ought to pay or resist. In Anon. W. N. 1875, p. 220, Lush, J., said that it could not be intended that a list of items, extending perhaps over three or four years, should be in- dorsed on the writ. In an action ft tlie price of goods sold, the dates and amounts of consignments were helil neccHsary (Parpaite v. Dickinmn, 38 L. T. 178 ; 26 W. R. 479). The following indorsements have been held insufficient : Insufficient (1) " The plaintiff 's claim is £399 P«. 7• 23S ; 1 Charl. Oh. Oa. 36, it was presumed that, under the Judi- cature Act, particulars of claim would be unnecessary, as the state- ment of claim or the indorsement on the writ should give full par- ticulars This view has not, however, prevailed, see Barker v. Wood, W. N. 1876, 56, 2 Chad. Ch. Oa. 15, where Archibal.l, J., made an order for particulars, saying, " I can see great convenience in allowing particulars before the statement of claim, as the defen- dant may withdraw." Where the plaintiff, as a claim, gave notice that the particulars were tho.se indorsed (m the writ, Lindley, J., made an order for additional particulars (Cotton v. Houseman, VV. N. 187(), p. 22 ; 2 Charl. Ch. Ca. 36). The form of application in such case would seem to be, not for particulars, but for a further statement of claim (Schomheni v. ZoebeUi, W. N. 1876, 106, 2 Charl. Ch. Oa. 36). Where the plaintiff 's claim was not a merely legal demand for an ascertained sixm but an equitable claim which if successful would only lead to an account being taken, and particulars where not neces- sary to enable e furiiiaheil in an action of seduction (Tiiruvr v. Kjih, '2 (J. L. T. 311). As to particuliira of countur-clainis »ee notes to llule 127. 16 Indoneiiicnt in casus uf delit or liquidiitud deinanl. i 5. Where the plaintiff's claim i.s for a debt or liqui- dated demand only, the indorsement, beside .stating the nature of the claim, shall state the amount claimed for debt, or in respect of such demand, and for costs, respectively, and shall further state that upon pay- ment thereof within [eight] days after service, or, in case of a writ ,not for service within the jurisdiction, within the time allowed for appearance, further pro- ceedings will be stayed. Such statement may be in the form in Appendi;c (A) hereto. Part II., .sec. 2. The defendant may, notwithstanding such payment, have the costs taxed, and if more than one-sixth shall be disallowed the p.aintiff's .solicitor .shall pay the costs of taxation. (Oomp. R. Sup. C, 1875, Order 3, R. 7; R. S. O., c. 50, s. 18). This is the same as the English Rule (7) referred to, except that the latter names four days ; and is to the same etFect as section 18 of the C. L. P. Act (11. S.'u., c. 50). The indorsement must state clearly what is debt and what costs (Truahve v. Whitechnrch, 8 Dowl., P. (J. 8.37) ; anre than three miles from Temple Bar. The Ontario Rule corresponds with the enactment in the Revised Statute, except that the latter names place of abode instead of place of business. Where the plaintiff is out of the jurisdiction his address ought to be indorsed though he appears by solicitor (McOreadi/ v. Henessy, 9 Pr. R. 489). Where the suit was on behalf of " the plaintiff and all others the underwriters of a steamship Cid at the time of loss in 1873 " it was 17 IiiildrMiMiieiit ill inortgnge SUitH WlllTe iiiiiiuHliate IHIMSI'Hsiun or im.viiii'nt desired. 18 Address of l)liti'>tin' and of solicitor. ! . m 170 ONTARIO JUDICATURE ACT, 1881. Rules 18, 19 h^i'l ^ii^t there was only one plaintiff, i. "^^d that his address alone need be given ; the other persons mentioned were not plaintiffs (Lvnthktj ,fec., v. Mc Andrew, W. N., 1875, 259, 1 Charl. Ch. Ca 58). 19 Address of plaiiititf in person. g. Where a plaintiff sues in person, there shall be indorsed upon the writ of summons, or notice in lieu of service of a writ of summons, his place of resi- dence and occupation. (a) If his place of residence shall be more than two miles from the office out of which the first process in the cause shall be issued, there shali be indorsed also another proper place, to be called his address for service, which shall not be more than two miles from such office, where writs, notices, petitions, orders, war- rants and other documents, proceedings, and written communications [not requiring personal service] may- be left for him. (h) If the writ or notice is not so indorsed, or if such address or place be more than two miles from the office aforesaid, then the opposite party shall be at liberty to proceed by posting up in such office all notices, petitions, orders, warrants and other docu- ments, proceedings and written communications re- quiring service. (Comp. R. Sup. C. 1875, Order 4, R. 2 ; R. S. O. c 50, s. 17 ; Pules of T. T. 1856, No. 138 Ont. ; G. O. Chy., No. 44). The English Order names three miles from Temple Bar, instead of two from the issuing office. The words ' ' not requiring personal service" are not contained, though they are of course implied, in the English Rule. The clause (/>) is not in the English Rule, but corres- ponds with the practice of the Courts (Archho'd's Practice, p. 176, 13th ed. ) The 0. L. P. Act, Rev. Stat., c. 50, s. 17, required only that the plaintiff suing in person should mention the city, town, incorporated or other village or township in which he resided. The present Rule corresponds nearly with the Reg. (Jen. Trin. Term, 1856, No. 188 (taken from English Rrle 166 of Hil. T., 1853), except that, instead of the information being indorsed on the writ that Rule re(|uired a memorandum to be left with the Clerk or De{)uty Clerk of the Crown upon issuing the writ. The Chancery Practice was governed by Order No. 44, and required the plaintiff, if suing in person, to indorse on his bill his name and place of residence ; and also, when his place of residence was more than three miles from the ciice, where the bill was filed, another proper place (to be called his address for service) not more than three miles from the said office, where writs, notices, warrants, and other f'ocumenta, proceedings and written communications might be left for him. ISSUE OF WRITS OF SUMMONS, 171 No one but a solicitor or plaintiff in person may issue a writ. Kales 19-21 Where a person not a solicitor, but purporting to be next friend of a married woman issued a ;vrit, the writ and all subsequent proceed- ings were set aside {Sivann v. Swann, 43 L. T. 530 ; 25 Sol. Jour. 134). As to sufficiency of address see Smith v. Dobbin, 3 Ex. D. 338. As to what retainer of a solicitor authorizes him to issue a writ, see Wray v. Kemp, W. N, 1884, 13 ; 32 W. R. 334. 20 lO. issue writs. In any action whatever the plaintifif wherever Plaint'^ s • 3 J. • -J. c ^ri.1- option as to resident may issue a writ of summons out oi thepiaceof proper office in Toronto, or in any County. {See R. '^'*"*" Sup. 0., 1875, Order 5, R. i ; R. S. O. c. 50, s. 10 ; G. O. Chy., No. yy.) This Rule corresponds substantially with the English Rule, and with the former practice in this Province as respects transitory actions. District Registries were established in England by the Judicature Act of 1873, s. 60, to decentralize the business, as far as consistent .vith the due administration of justice The writ in an action of ejectment may under this Rule issue out of the proper office in any County without reference to the locality of the land, though the trial must, under Rule 254, be in the County where the land lies (Canada Permanent, ) is the same in the English Rule, Where a solicitor has commenced an action in the name of a plaintiff without authority, the plaintiff may, on notice to the defendant and the solicitor, move that the action be dismissed, and RENEWAL OF WRITS. 175 that the solicitor pay the costs of the plaintiff as between solicitor Rule 29-31. and client, and the costs of the defendant as between party and ip&Tty {Newbiggin-by-the-Sca Gas Co. v. Armstrong, 13 Ch. D. 310; Nurse v. Durnford, 13 Ch D. 764 ; Wray v. Kemp, W. N. 1884, 13). 30 2, Where a writ is sued out by partners in the name Sessos^of of their firm, the plaintiffs or their solicitor shall, on }{l.^;"g„i'',^g''a8 demand i.i writing by or on behalf of any defendant parmerB. declare forthwith the names and places of residence of all the persons constituting the firm. (a) If the pla.intiffs or their solicitor shall fail to comply with such demand, all proceedings in the action may, upon an application for that purpose, be stayed upon such terms as the Court or a Judge may direct. (h) Where the names of the partners are so declared, the action shall proceed in the same manner, and the same consequences in all respects shall follow as if they had been named as the plaintiffs in the writ ; but all proceedings shall nevertheless continue in the name of the firm. (R. Sup. (a, 1875, Order 7, R. 2). This Rule is the same as the English Rule. By Rule 100 post, any party to an action in which partners either sue or are sued in the name of their firm may apply by summons for a statement of the names of the partners, to be furnished in such manner, and verified on oath or otiierwise, as may be ordered. ORDER V. RENEWAL OF WRIT. 31 I. No original writ of summons shall be in force ^»':'^'="cy "<" for more than twelve months from the day of the date thereof, including the day of such date ; but if any Renewal. defendant therein named shall not have been served therewith, the plaintiff may, before the expiration of the twelve months, apply to a Judge for leave to serve the writ after, and notwithstanding the lapse of, the said period. {a) The Judge, if satisfied that reasonable efforts have been made to serve such defendant, or for other good reason, may order that the service shall be good if made within twelve months of the date of the order ; and so from time to time during the currency of the further period allowed. i ! 176 ONTARIO JUDICATUKK ACT, 1881. I: Rule 31. (b) The writ shall in such case be renewed by being marked with the date of the day, month and year of such renewal ; such renewal to be so marked by the proper officer upon delivery to him by the plaintiff or his solicitor of a memorandum in Form No. 76, in Appendix E. (c) In such case the original writ shall be available, to prevent the operation of any statute whereby the time for the commencement of the action is lirrited and for all other purposes, from the date of the original issue of the writ. (Comp. R. Sup. C, 1875, (Jrder 8, R. I ; R. S. O. c. 50, ss. 27-29 ; G. O. Chy., Nos. 93-98.) The Eiiglisli Rule provides for the renewal being marked with a seal. This Rule introduced an important change. Theretofore the writ, if not served, might, as of right, during its currency, be renewed for six months from the date of renewal, and so on from time to time during th* "irrency of the renewed writ ; so as to keep the action ahve without service, and thereby defeat the Statute of Limitations f< indefinite time ; whereas under this Rule a writ can only Vje rt r.ew d b_\ leave, and if reasonable efforts have been made to serve the defendant, or for other good reason. It is only the original writ that casi be renewed. Where, there- fore, a writ wliich had been once renewed was lost, the Court refused to direct the ofhcer to seal a verified copy {Davien v. GarUwd, 1 Q. B. D. 250). Semblt a concurrent writ might have been issued. The writ will expire at midnight preceding the anniversary of its issue. See Fitch v. Walker, 7 I'r. R. 8. Where a writ was renewed for six months from 6th April, 1881, under the former practice and was served on 27th Dec, 1881, it was held that the writ being in force on 22nd Aug., 1881 (when the Jud. Act came into force), it was continued in force under this Rule for a year, and service was therefore good (Mackelcan v. Bee.ke.t, 9 Pr. R. 289). The twelve months are calendar months ( Rule 454) and run from the date of the writ (Re Joixn, Eyre v, Cox, 46 L. J. (Jh. 316 ; W. N. 1877, 38) ; and vacation is included (see Rule 461, and Mulliu V. Bonjor, 5 Ir. C. L. 475). By Rule 462 a Court or Judge may enlarge the time for any pro- ceeding, and although the prescribed time has elapsed. In lie Jones, Eyre v. Cox, supra, Jessel M R., allowed a writ to be renewed after its period of currency had expired, the plaintiif not having been able to serve it. But where the Statute of Limitations had in the meantime run, the Queen's Bench Division held that it could not renew the writ (Doyle v. Kaufman, 3 Q. B. D. 7, affirmed in Appeal, 340). Where a writ was taken out in the C. P. Div. so as to save the Statute of Limitations, but not served, and after the period of the Statute had run, but before the expiration of the writ, an adminis- tration action was commenced in the Chancery Div. , it was held SERVICr: OF WRIT. 177 that the writ in the C. P. Div. did not keep the debt alive for the Boles 31-34 purpose of the administration suit (Manhy v. Manhy, 3 Ch. D. 101). Where the writ has expired before service, the copy and service of the writ may be set aside, but not the original writ (Fitch v. Walker, 7 Pr. R. 8). Where a defendant has been served with an unrenewed writ after the expiration of twelve months from the date of its issue, he pro- bably cannot treat it as a nullity, but should apply to set aside tlie service for irregularity (see Rule 473, and Hemp v. Warren, II M. & W. 103, 2 Dowl., N. S. 758). 32 2. The production of a writ of summons purporting Evidence of to have been renewed in manner aforesaid shall be sufficient prima f.icie evidence, for all purposes, of the writ having been so renewed, and of the commence- ment of the action as of the date of the issue of the writ in manner provided as aforesaid. (Comp. R. Sup. C. 1875, Order 8, Rule 2 ; R. S. O. c. 50, s. 28 ; Eng. C. L. P. Act of 1852, s. 13.) This corresponds in substance with the English C. L. P. Act, 18r)2, 8. 13, and with U. S. U., c. 50, s. 28. i I ( ) R D £ R V 1 . SERVICE OF WRIT OF SUMMONS. 1 . — Mode of Service. 00 1. No service of writ shall be required where the undertaking defendant by his solicitor accepts service, and [under- seiv'ice.''* takes to enter] an appearance. (R. Sup. C, Order 9, Rule I ; G. O., Chy., No. 47.) The English Rule has the word " enters " instead of the words in brackets. 34 2. Where service is required the writ shall, wherever Personal it is practicable, be served [by the same person and in stitutionai the same manner as service is now made ; and where ''®'"^'<^^' personal service is required] if it be made to appear to the Court or Judge on affidavit that the plaintiff is from any'cause unable to effect prompt personal ser- vice, the Court or Judge may make such order for substituted or other service, or for the substitution of notice for service, as may seem just. (R. Sup. C, 1875, Order 9, R. 2 ; Ih , Order 10 ; R. S. O. c. 16, ss. 32, 33 ; c. 40, s. 95 ; c. 50, ss. 20, 23 ; Eng. C. L. P. Act of 1852, s. 17; G. O. Chy.. Nos. 99-102; Eng. Consol Orders, No. 10, R. 6, 7.) 12 'h \ I # 'u i t 178 Bnle 34. R. 8. O. c 50, a. SS6. Personal ■ervice. Who may serve writs Substitutt'd Survice. Ffirmerly. ONTARIO JUDICATURE ACT, 1881, Instead of the words in brackets the English Rule has the words " in the manner in which personal service is now made ;" the sub- sequent part of the Rule corresponds with the English Rule. The modes of service had previously not been the same in Chancery and in a Common Law action (see Chy. Gen. Orders, 87, et. seq., and Rev. Stat. c. 40, ss. 92-94, and Rev. Stat.c. 50, 88.20- 24). Under section 20 of the C. L, P. Act (Rev. Stat. c. 50), service of the writ was required to be personal wherever practicable, and therefore leaving a copy with a female servant at the lodging of defendant, has been held not to be good service (Price v. Thomas, 1 1 C. B. 543) ; though if the service were shewn to have come to the knowledge of defendant, leave t<> proceed might be granted. The above service, if of a bill in Chancery, would probably have been held sufficient under Chy. Gen. Order 87 (see Elliot v. Beard, 2 Chy. (!h. 80). Where, however, the service had not been personal, notice of motion to take the bill pro e.ovfenxo was required to be served personally, or as the Court might direct (see Chy. Order 107 and 108). See notes to Rule 42, as to service of corporations. Pirsonal service may be by delivering the process into the defen- dant's hand ; or by seeing him and bringing the process to his notice (ThoviHon \. Pheiicy, 1 iJowl. 441); and shewing him the original if he desires it (O'ofjijs v. Buiithiijtower, 12 M. & VV. 503) within a reasonable time after service {'/ fioman v. Pearce, 2 B. & C. 701 ; Petit V. AmhroHe, C Al . & S. 274; a quarter of an hour was con- sidered reasonable time in West/ty v. Jonen, 5 Moo. 162) ; or if he It fuses to receive the copy, after being told its nature and being tendered it, then by placing it on his person (Bell v. Vincent, 7 D. & R. 238), or by throwing it down in his presence (1 Dowl. 443). The co|iy must, however, be left with tlie defendant and not merely shewn to him ( Worleij v. Glover, 2 Str. 877), even though he refuses t') take it (Piyeon v. Bruce, 8 Taunt. 410 ; Ervin v. Powley, 2 U. C. U. 270). By the practice iu the Common Law Coui'ts, anyone might serve pr.ijcrs. But by R. S. O. o. 50, s. 335, "No n)ileage shall be taxed or allowed for the service of any writ, paper or proceeding, without an affidavit being made and produced to the proper Taxing Officer, stating tlie sum actually disl)ursed and paid for such mileage, and the name of the party to whom such payment has been made ; and, except in the cases provided for in the 23rd section of this Act, no fees shall be allowed for the mileage or service of writs of summons « ■ other tnentie process unless served and sworn in the affidavit of service to have been served, by the Slieriff'. his Deputy or Bailiti", being a literate person (or f)y a Coroner when the Sheriflf is a party til the suit), nor unless a return of the Sheriff or Coroner las the case may be) is indorsed thereon." The practice was formerly similar in (iiancery under Order 21)8, but that Order was rescinded by Order GIG, and thereafter any reasonable sum paid for serving proceedings might be taxed, ni matter by whom the service was effected. Under tlie present tariff (item 14) the costs of service of a writ by a person .other than a sheriff are only taxable where sheriff lias made default. {See R. i5. O. c. 50, s. 24). .Substituted service was not in use in the Common Law Courts. The equivalent practice was that provided by R. S. O. c. 50, s. 20, under which, if reasonable efforts had been made to effect service, and either the writ had come to the defendant's knowledge or he wilfully evaded service, an order might be obtained to proceed as if SUBSTITUTED 8KRVICE. 179 pei-sonal service had been efteuted . In (.Chancery, substituted, service Jnle 34. was allowed wherever necessary (see Hope v. Hope, 19 Jieav, 237 ; 4 D. M. & (t. 3*28), and this jurisdiction was enlarged by Statute Rev. Stat. c. 40, s. i>4, (printed infra p. 181) : The present Rule gives a wide discretion to the Court. It allows Prenent substituted service to be ordered if, from any cause, the plaintiff is practice. unable to effect prompt personal service, and applies to a case of persons sued in the name of a firm when no person having control or mauagenient of the buiiness can be found. (ShiUito v. (Jhild cfc Co., W. N. 1883, 208.) Where defendant has an agent within the jurisdiction, su])stitu- When tional service may l)e allowed on such agent, e. rj. a managing clerk allowed, at his place of business {Annitinje v. FUzwUliam, W. N. 1875, 238) ; general agents (Jones v (Jar(fdl,, II L. 'I'., N. S. 566) ; special agents (Hohhouae v. Court net/, 1'2 Sim. 140) ; solicitor.^ who had acted for defendant ( ffonihi/ v. Holmes, 4 Ha. 306 ; Watt v. Harnett, 3 Q. B. D. 183, 3*53 ; Tottenham v. Barry, 12 (^.h. D. 7!)8). As was said in Watt v. Barnett, 3 Q. B. [). 367, substituted service may be properly ordered upon any persons with whom tlie Court is satisfied that the party is in communication. The Court has a right to consider that the copy of writ served will be sent on, and tlie service will be good, though the service is not in fact communicated. In cases decided under the former Chancery practice the agent was required to be such in relation to the subject matter of the suit, (Allan V Pjiper, 5 U. <1 L. J. 118 ; Cuppk-s v. Yorston, 2 Chy. Ch. 31 ; Vannlffe v. Taylor, 2 (irr. 617 ; Doremus v. Kennedy, 2 (ir. Qtr>1) ; but under the present practice onUjrs have been made though the person serveil has no connexion with the subject of the suit, if only he is likely to communicate tlie fact of service to the defendant (see Watt V. Barnett, xupra). Wliere detendants wife or other relative or person is shewn to be or to Ije likely to be in communication with him and is within the juris- diction, service m:iv be allowed on such person (Dicker v. Clarke, 1 1 W. 11. 6;!.'); Bank of Wkitehaoen v. Thompson, VV. N. 1877, 45; S unirnlU" v. Jo:/r,e, I Ciiy. (^ii. 35S) ; and even under the former Chancery practice such service has been allowed though the relative was not shewn to be at the time in communication with defendant (Cameron v. Baker, 2 Chy. Ch. 281). Such service may be accom- panied by advertising where the person upon whom substitute;! service is made, may not be able to communicate with defendant, (Bank of Whiteluiven v. Thompson, Cameron v. Baker, supra, Coul- bourn v. Carshaw, 32 W. R. 33, ) or by mailing to an address at which defendant is shewn to have recently been (C apples v. Yor.Uon, supra. ) Where a bill hvd been filed for foreclosure, and the defendant the official assignee of the mortgagor absconded ^efore service effected, service was allowed substitutiunally upon one of the Inspectors of the estate (London Canadian Loan <{; Agenci/ Co. v. Thompson, 8 Fr. R. 91). Substituted service will not be ordered under this Rule unless it When not is shewn that prompt personal service cannot be effected, 'i'he face '^'••^w*"*- of a defendant lieing out of the juris;lictiou is not alone a reason for dispensing with personal service. He must be evading service, or his whereabouts \!iX\.k.\\ow 11 (Rohert son v. Mero, 9 Pr. R. 510). Where his residence can be ascertaineil by examination of relatives, that course will doubtless be pr ip f as formerly in Chancery (see . M : " t \m I 1 h.. McMurrich v. Hot/an, Chy. Ch. 282). I Chy. Ohi. 307 ; McDonald v. McMillen 2 180 ONTARIO JUDICATURE ACT, 18tJl. Enle 34. Substituted service will not be ordered, .'nder this Rule, of a writ which could not have effectually been served personally — as a writ against a colonial government (iSlomnn v. Ounernur of -\ tw Zealand, 1 C. P. D. 503). Princii)le of. ''he principle upon which substituted service is granted is that the service is likely to come to the knowledge of the party (Hope v. Hope, siijira ; Furher v. King, 29 VV.K. .').S.')) ; where therefore the defendant was shewn to have absconded from his residence and place of business leave to serve him substitutionaliy, by leaving copies of the writ .at those places, was refused and service was allowed by advertising. ( Wolrerhampton A- StafordHhire liunkinq Co. v. Bond, 43 L. T. 72; 29 W.li. 599.) Not confined The provision for substituted service has been held in England, by to service of Denman, .J., in Chamlters, to relate only to service of writs of writs. sunmious or notices thereof, and therefore substituted service of a notice of application for a writ of attachmtnt was refused (Anon. W. K. 1870, 105 ; 2 tJharl. Ch. ('a. 2{)\. It is presumed, however, that notices under Rule 108 may he so served, and that, under their general jurisdiction, the CJourts of this Province may order such service of all papers not recjuired, to be personally served (see JUc- Tai/i/art v. Merrill. 7 Pr. R. 405). .Substituted service has been allowed of proceedings to set aside fraudulent conveyances under R. S. (). c.49 s. 10 (DohKOH v. Mars/iall,\), Pr. R. I) ; and in England of a notice of motion {Cook v. JJti/ W N. 1870, 122 ; Hamilton v. DarieH, W.N. 1880 82 ; see Dan. Pr. 1442) ; an order for an interim injunction ( )'(>H«,7 v. Ura.s.scj/, 1 (;h. D. 277.; a summons to shew cause where defendant was evading service {Hunt v . Austin, \i\. p. Ahmon, 9 Q. B. D. 598); a notice of .appeal {Ex. p. yVurhiir^, lie Whallei/, 24 Ch. D. 364) ; and a notice of motion for an administration order under (/'hy. (Jen. O. 038 [Jfe Allan, 9 Pr. R. 277); see also Jie Morant, W. N. 1879, 144. An order to proceed in absence of service, will not be made ; sub- stituted or equivalent service must be obtained if personal service or acctjptancc of service cannot be obtained (\V. >« . 1875, p. 202; 1 Charl. Ch. Ca. 37). Substitution In Cook v. Dey, 2 Ch. \). 218 it was held by V. C. Hall, that the of notice for gubstitiition of notice for service mentioned in the latter part of the service. Kule is not intended to apply to ordinary cases of persons not able to be found, but who were within the jurisdiction. He therefore directed substituteil service of the writ by advertising, and by leav- ing a copy at defendant's office and lodgings. In Leddell v. Mc- Doiuiall, 22 Sol. Jour. 838, Manisty, .J. held the Court had power to make an order for substitution of notice for service within the jurisdiction. See also in Ont., R. S. O. c. 40, s. 94, infra, p. 181. In such cases the time for appearance runs from the time the order takes effect, that is, from the service of the writ at the place men- tioned or issue of the advertisement, whichever is the later (Crone V. Jullion^Ch. D. 220 ; see also Johnson v. Moffat, \V. N. 1875. 248, 1 Charl. Ch. Ca. 39). Where defendant gave his club as his address and an order for substitutional service having been granted on an affidavit of a clerk that he had been to the defendant's residence but had been unable to effect personal service, and judgment by default was signed on the substituted service, the affidavit was considered misleading and the order for substitutional service was set aside though two years had elapsed since signing of judgment (Johnson v. Memies, 72 L. T. Jour. 348). When ser- vice set aside. Whitle,} SUBSTITUTED SERVICE. 181 An order diructing substitutional service upon solicitors of ilefend- Eale 34- ant in a former action was set aside, it being shewn that the solicitors had ceased to act for defendant in such former action ( The. Pom- meraiila, 4 V. I). 195). Substituted service, when duly effected, is for all purposes ecjuiva- Practice, lent to personal service ( Watt v. Harnett, 3 Q B. D. 'MY^). When it is necessary to effect substitutional service on several defendants at the suit of the same plaintiff, and the api)liuation is based on the same facts, a single affidavit may bu used setting out the necessary facts and entitled in all the actions (Orkney v. Shanahan, 8 L. 11. Ir. I.^S). (Josts of motion for leave to effect substituted service are taxable Costs. in the cause (Eaijer v. Biicklei/, 8 L. R. Ir. 99). Rev. Stat. Ont. c 40, s. 94, provides as follows : — " 94. Where a defendant or respondent in any suit or matter is ab- Service by sent from the Province or cannot be fouml therein to be served, the °*''®'' ™"<1'" Court may authorize proceedings to be taken against him according to the practice of th ■ "^'ourt in the case of a defendant, whose resi- dence is unknown, Oi .n any other manner that may be provided or ordered, i/ the (J )urt shaU, under the circumstances of the case, deem such mode of proceeding conducive to the ends of justice." 28 Vict. c. 17, 8. 12. This Act, which, it is apprehended, may still be applied, (see Dohmn v. Marnfuill, 9 Pr. R. I ) was held to apply to cases where defendants are very numerous or where they reside out of the juris- diction at a very great distance, or where the residence is not known at all, or where from any other cause it would be difficult or expen- sive to effect a "ervice (Pearxun v. (Jamphell, 2 Chy. Ch. 25). Ad- vertising has been dispensed with wliere it would be useless, and service allowed by mailing to the address of defendant's brother resident in the Province, though not in any way an agent of defen- dant (Cooper V. Lane, I Chy. Ch. S(i3). A combination of different modes of effecting service where defendant's address is nob known or he cannot be found may 1)6 ordered, depending upon the circumstances of the particular case. Examples. — Where the defendant was supposed to be within the jurisdiction but had absconded or was evading service, service allowed by leaving copies of writ at his last lodgings and place of business and by advertising or mailing (Cook v. Dey, 2 Ch. D. 218 ; Capes V. Brewer, 24 W. R. 40); by serving tenants of lands in question in the action to whom the defendant had given notice to pay rents to him, and advertisement (Crane v. Jullion, 2 Ch. D. 220) ; by leaving copy of writ at defendant's only known place of residence, a club, and serving solicitors who refused to accept service but hai acted in other matters for defendant (Rafael v. Ontflej/, 34 L. T. 124 ; see Anon, 1 Char. Ch. Ca. 38) ; by mailing to his address and advertizing (Hamilton v. Daoies, W. N. 1880, 82); by serving defendant's wife, leaving copies at his residence and advertizing (Mallows V. Bannister, W.N. 1882, 183; 31 W. R. 238). Where defendant is out of the jurisdiction but his whereabouts i ^.l nown, service may be allowed by advertising alone if no agent within the jurisdiction or person likely to be in communication with defendant (Hartley v. DiUce, 35 L. T. 706 ; Gordon v. HaniM, « Pr. R. 266 ; Whitley v. Honeywell, 24 W. R. 851) ; or by advertising and mailing to v.ii-ious addresses at which defendant has been heard of (Stimson V. . 363). 86 Married Women. 86 Service on offluial guardian h 2. — On partkuUtr Defendants. 3. A married woman shall be served in the same manner as a party to a suit or matter, not under any disability, is now served ; and tiic like proceedings may be had on such service and with the like effect, as if tiie married woman were a /cfne, auh,. (SfeG. O. Ohy., No. 613 ; K. S. C). c. 125, s. 20.) This IJiile corresponds with tlie (Chancery Order No. 61.'{. The Knglihli !!ule 11. S. (". 187"), Order 'A, Rule li, provided *-hat, where the husbantl an Pr R. '200, un ler the former practice in a redemption suit to which the widow an lendant.-}. 'i'he present practice is, however, difTerent. In H^jdijliUi v. Hodifins (\lr. Dalton, March, 1882), the mother of infants defendants of tender years who was also their guardian, appointed by the Surrogate for the purpose of taking proceedings on their behalf for partition of the lands in question under the Partition .\ct, applied to have a guardian other than the official guardian appointed. 'I'here was no conflict of interest and the action involved a partition of lands inherited by the infants from their grandfather, but the Master in Chambers held that there was no sufficient reason for acting under the power conferred by this Rule, and that the policy adopted by the i.'ules of appointing the official guardian was not to be tleparted fnui without some reason, apart from the wishes of those who naturally have the care of the infants' interests. On an application at the instance of an infant of 18 who was considered capable of exorcising a sounil discretion in managing his own affairs and applied with the apjtrobation of his father, a guardian nominated by the infant was appointed under above clause {<•) in the place of the official guardian {McKemie v. Dwi(jht, 2 C. L. 1'. 3o9). Where an infant resided out of the Province and his interest in Practice in the suit was small, the official guardian was on motion allowed to be umler'u. 30. served for him ( Wetherhead v. fVetherhead, 9 Pr. R. 96). It is now, however, established that in the cases in which this Kule and Rule 37 do not apply the former Chancery practice is still to be followed iRew v. Anthonii. 9 Pr. R. 515). The following Chancery orders regulate the practice in such cases : — " 610 In any proceeding in the Court in which it may be neces- ehy. Orders sary to appoint a guardian ad lUem for an infant, the person desiring 6 lO-tiia. such appointment shall, upon an allegation contained in the prcBcipe of the infancy of the person for whom such guardian is sought, be entitled to an order fx parte from the Clerk of Records and Writs, or, where the bill is filed or the proceedings are taken outside of Toronto, from the I Jeputy- Registrar of the County where such bill is Hied or proceedings are had appointing a guardian ad litem to such infant." •'■I. f ! n *-•;■',' 1 ;;5' i ^' 1 tt - ' i v\ -1 ■ a- ' =1 '■'I r M 1 > ; ■ ■ [ ■' '} .'i I It 1 " !■ . 1 .ii ■ 11 < i:4 ] 1 ■ -1 Im : ^ii n ■ i :■:? Jfl I: i-S Jm m 184 ONTARIO JUDICATURE ACT, 1881. Bnles 36-38 The pruecipe order will now appoint the official guardian to be the guardian ad litem [Rew v. Anthony, 9 Pr. R. 545) unless he is acting in the matter for parties adversely interested, in which case a special application will have to be made. Chy. Orders "611. With the order appointing such guardian shall be served on 611, 612. 37 Service ou infant personally. 88 Lunatic. the guardian one copy of the procee. ^r, 1 Chy. Ch. 393). 6. Where a lunatic or person of unsound mind not so found by inquisition [or judicial declaration] is a defendant to the action, service on the committee of the lunatic, or on the person with whom the person of unsound mind resides, or under whose care he or she is, shall, unless the Court or Judge otherwise orders, be deemed good service on such defendant. (Comp. R. Sup. C, 1875, Order 9, R. 5 : R. S. O., c. 40, s. 70 ; c. 220, ss. 49-51 ; G. O. Chy., Nos. 517-520.) Same as the English Rule, except the words in brackets. The R. S. (). c. 40 s. 65, authorizes the Court of Chancery or a Judge to de- clare a person a lunatic without an imiuisition. Where a lunatic had no committee, service was in England directed to be on the keeper of an asylum where the lunatic was living (Thorn v. Smith, W. N. 1879, p. 81, 27 W. R. 617.) It is the duty of the keeper of an asylum to allow the writ to be served, (Denison v. HardinijH, W. N. 1867, 17,) unless the service might be injurious to the lunatic. By R. S. O., c. 220, s. 49 however, the Inspector of Prisons and Public Charities is ex officio, and by his name of office, the committee PARTNERS. 185 of every lunatic who has no other committee and who is detained in Bules 38-41 a public asylum, and it is presumed that in such case service may be made upon the Inspector. 80 7. No further proceedings are to be taken against ^JJ^J"*^'*" *"* such a defendant who has no committee until a guardian ad litem is appointed. {See G. O. Chy., No. 518.) See notes to Rules 69 and 124. 3. — On Partners and other Bodies. 40 nami'offlnn. 8, Where partners are sued in the name of their firm, Partners, the writ shall be served either upon any one or more of the partners, or, at the principal place within Ontario of the business of the partnership, upon any person having at the time of service the control or management of the partnership business there ; and, subject to the Rules hereinafter contained, such service shall be deemed good service upon the firm. (R. Sup. C, 1875 Order 9, R. 6.) Same as the English Rule. Service on a person who is not a partner may be discharged with costs on the application of the firm (Nelson v. Pantorhio, 49 L. T. 564). 41 Q. Where one person carrying on business in theP^.™"" . name of a firm apparently consistmg of more than ness under one person, shall be sued in the firm name, the writ ^ may be served at the principal place within Ontario of the business so carried on upon any person having at the time of service the control or management of the business there ; and, subject to any Rules of Court, such service shall be deemed good service on the person so sued. (R. Sup. C , June 1876, R. 4.) Same as the English Rule. This Rule does not apply where tlie person so carrying on business lias become a lunatic. Rule 38 in such case applies (Fore Street Warehoiise Co v. Durrant ,i- Co., 10 Q. B. D. 471). The power to partners to sue and be sued in the name of their firm is new ( Rule 100) . In such cases, if partners are suing in the name of the tirm, they must, on the demand of the defendant, disclose the names of the partners ; and whether suing or being sued, they may be ordered by a Judge, on the application of any party to the action, to make such disclosure (Rule 30 and 100. ) If a firm is sued as such, service may be eflfected either upon any one or more of the partners, or at the principal place of business of the partnership upon any person having the control or management of the business. The part- ners are to appear individually in their own names, but all sub- sequent proceedings go on in the name of the firm ( llule 57). . "I I f >l 'i lit i i I: I 186 ONTARIO JUDICATURE ACT, 1881, E)t Bnles 41, 42 Where a partnership unregistered existed between A B and under the style A &. Co. and A absconded, and three days later (' made a secret assignment of his interest in the business to B, and two days thereafter, before the announcement was matie public, C was served with a writ in an action against the firm by its lirm name, of which proceedings B was aware, it was held that the service was good (Bank of Hamilton v. Blakealee, 9 Pr. R. 130). Though the partners in such action are to appear individually (Rule 57) the judgment is not against them individually, but mu8t follow the writ antl be against the firm (Jackson v. Litchfield, 8 Q. B. D. 474) ; (see discussion of this case iu 17 L. J. 324). After judgment against the firm, execution may issue against any property of the firm, or against any person admitted or adjudged to be a partner, or against any person served as a partner with the writ who has failed to appear. If the judgment creditor claims to be entitled to issue execution against any one else as a partner in the firm, he may apply for an order to that effect, and an issue may be directed to try the question (Rule 340). If a business is carried (jii l»v a single individual he may be sued iu the firm name. Rule 41 jn-ovides for the service of the writ ; Rule 57 provides for the defendant's appearance. A person residing abroad, but carrying on business in this Province under a firm apparently consisting of more than one person, maybe sued here, and the writ may be served at his place of business in this Province ((rNeil v. damn, 4fi \u J. Q B. 191). 42 Corpora- tiouH. Form IT lo. Where by any statute provision is made for service of any writ of summons, bill, petition or other process upon any corporation or any society or fel- lowship, or any body or number of persons, whether corporate or otherwise, every writ of summons may be served in the manner so provided. (R. Sup. C, 1875, Order 9, R. 7 ; R. S. O., c. 50, s.s. 21. 22 ; c. 149, s. 43 ; c. 1 50, s. 60). The following sections of the ('. L. P. Act, Rev. Stat c. 50, ss. practiceeon-21, 22, prescribe tlie mode of service of a writ of summons upon corporations : R. S. O. "21. ICvery such writ issued against a corporation aggregate, and, c. 60, 8. 21. ill the absence of its api>earance by attorney, all papers and proceed- ings in the action before final judgment may be served on the Mayor, Warden, Reeve, President, or other hea I officer, or on the Town- ship, Town, City or County Clerk, or on the Cashier, Manager, Treasurer or Seci'etary, Clerk or Agent of such corporation, or of any branch or agency thereof in Ontario ,• and every person who, within Ontario, transacts or carries on any of the business of, or any business for, any corporation whose chief place of business is without the limits of Ontario, shall, for the purpose oi being served with a writ ri summons issued against such corporation, be deemed the Agent thereof." The first part of this section applies only to corporations whose chief place of business is within the Province. Service within the Province on the President of a foreign corporation was held bad where it was not shoM'ii that he transacted any business there {Wil>*on V. Ddroit A- Milwank><' Rji Co., 3 Pr. R. 37). Where a SERVICE OP CORPORATIONS. 187 foreign Insurance Co. had a bead office for the Province in Toronto BuJe 42. service on the local agent of the Co. at Ottawa was hehl good uiider'this section notwithstanding th« provisions of the Dom. Act, 40 V. c 42, s. 39 ( Wilson v. JiJfna lAfc Iimirance Co., 8 Pr. R 131 .) " '22. Every writ of summons issuetl against a railway, telegraph, lb., s. 'J2. or express corporation, and all subsequent papers and proceedings, in the evenc of an appearance not having been duly entered, may be served on the Agent of such corporation, at any branch or agency there v)f, or on any Station Master of any railway company, or on any Telegraph Operator or Express Agent, having charge of any tele- graph or express office belonging to such corporation ; and any such .Master, Operator or Express Agent shall, for the purpose of being served with a writ of summons issued against such corporation, or any i)aper or proceeding as aforesaid, in the event of non-appearance, be deemed the Agent thereof." Chy. (len. Orders 91 & 9.' prescribe the mode of service of a bill Ch. Ord. 91. iipftn corporations. These Orders are as follows : "91 . Service of a bill of complaint within the jurisdiction of the Court upon a corporation aggregate, is to be eflFected })y personal servicv! of an office-copy thereof on the Warden, Reeve, Mayor or Clerk, in (uvse of a municipal corporation, or on the President, Man- ager or other head officer, or the Cashier, Treasurer or Secretary, at the head office, or at any branch or agency in Ontario, or on any other person discharging the like duties, in the case of .any other corporation. " Thi.s order applies only to services of corporations within the jur- isdiction and does not authorize service on an agent (CumpheUx. Tni/lof, 1 Chy. Ch. 2). The next Order applies to foreign (corpora- tions which may be served at any agency within the Province [Jnoin V. Lnnriishiri', etc., 2 Chy. Ch. 291 ; Howland v. Griermn, 5 U. C. L J. 19.) "92. Where a foreign corporation aggregate, defendant to a bill /ft. 9-'. of compLaint, has no branch or agency in Ontario, service of the bill upon such corporation may be effected, out of the jurisdiction, by personal service of an office-copy thereof on the Warden, Reeve, Mayor, Clerk, President, Manager, or other head officer, or on the Cashier. Treasurer, or Secretary of such corporation, or other person discharging the like duties, as in the case of service in Ontario." VoT the mode of serving companies incorporated by special Act Cos. by and by letters patent, see Rev. Stat. c. 149, s. 43, and c. 150, s. 60, '''*'^<-'"^ as to companies incorporated by the authority of the Legislature of ''pgg|!ji°^gt Ontario ; and 32-3 Vict. c. 12, s. 41, (U) and 40 Vict. c. 43, s. 61, (D) as to companies incorporated by the authority of the Dominion Parliament ; and 40 Vict. c. 42, s. 9 (1)), as to Insurance Companies. See also White v. Land and Water, etc. Co., W. N. 1S83, 174. It has been held that a foreign corporation, having a place of Foreign cor- business and trading in England, may be sued there, and served in porations. the manner pointed out in section 16 of the C. L. P. Act of 1852, the officer being for this ]mrpose in England a head officer (Newhif V. f'on Oppen, L. R. 7 Q. B. 293 ; Falniei-v. GoukVn Mannfacturimj Co., W. N. 1884, 63 ; see also per Lord St. Leonards in The Carroti Iron Company v. Alaclaren, 5 H. L. C. at p. 459) But service on a mere booking clerk of a Scotch railway company at a station on an English railway over which the Scotch company had running powers was held insufficient in Mackereth v. Glasyoto and South Wexterv Hallway Co., L. R, 8 Ex. 149. FT « f ?■ 1 ] '• i ■ >r nm h"l:ii SMi < m i w '4 .;'!<: :l ■ \ • h^ 1; ¥. i i . '1 ■ ] I 1 1 188 ONTARIO JUDICATUKK ACT, 1881. Eules 42-44 Where, by a Statute, service of a writ might be eflfectetl by being left at, or sent by post to, the company's ortice, or given to the secre- tary or, if no secretary, to a director, and the company had no otfice, and was being sued by the secretary, service on a director was held invalid ( Lawrenson v. Dublin Mt'tropoliidn .t-c, Raihoni/, 37 L. T. 3*2), A colonial (xovernment (Sloman v. Governor of New Ziahtnd, 1. (.'. P. I). o()3), and a foreign Government (Stromhenj v. Costa Bica, 29 W. R. 125) have been held, not to be corporations with tliis Rule, It has been decided under the English Rule 03, and s. 100 of the Act of 187i) [see s. 93 of Ont. Judicature Act and Rev. Stat. c. J, s. 8 (13)], that a foreign corporation, though it does not carry on business within the jurisdiction, may, in a proper case, be sued there. (See Wr-stman v. Aktwholivjct, ' Royal Wax. Candlv Co., 1 Q. B. D. 404. See also Royal Mail Steam Packet Co. V. Brahaw, 2 App. Ca. 381.) Such a corporation might hitherto have been sued in Ontario, and the mode of service in such case was prescribed by Chy. (ren. Order 92 and Rev. 8t.it. c. oO, ss. 50 and 51.) 43 Action to Tecovcrlaad 4. — In Particular Actions. 1 1. Service of a writ of .summons in an action to re- cover land may, in case of vacant possession, [when it cannot otherwise be efferted] be made by posting a copy of the writ upon the door of the dwelHng-house or other conspicuous part of the property. (R. Sup. C. 1875, Order 9, R. 8 ; Comp. R. S. O., c. 51, s. 8.) Identical with the Rule in the English Judicature Act. The cor- res[»onding provision in the English and Ontario C. L. V. Acts does not contain the words in brackets. Service by nailing a copy to a tree upon the lot which was a wiM land, considered good service under the similar provisions of R. S. O. c. 51, s. 8. (Burnimm v. .A)«»'.y, 32 U. C. Q. B. 83.) Where service has been effected in this manner in ejectment, judgment by default cannot be signed without a Judge's order as heretofore. (See Rule T. T.. 1845, No. 92. Anon. GO L. T. Jour 34 ; 1 C!harl. (Ui. Ca. 40; see, however, L^aac v. Diamond, W. N. 1880, 75). 44 jndor.seinent \2. The pcrson Serving a writ of summons shall, •of service. •^i-i, r i ■ • ^ Within three days at most after such service, indorse on the writ the day of the month and week of the service there' -if; otherwi.se the plaintiff shall not be at liberty, in case of non-appearance, to proceed by default [without the leave of a Judge, such leave to be obtained at the cost of the plaintiff, and such cost to be in no event charged against the defendant]. (a) Every affidavit of service of such writ shall mention the day on which such indorsement was made. (R. Sup. C, 1875, Order 9, R. 13 ; Comp. R. S. O., C. 50, s. 25 ; Eng. C. L. P. Act of 1852, s. 15.J a wrong Ir. 35). Holiday This Ri service, (i N. 1875, service, (8( 31 W. H. 8EUV1CE OUT OF ONTARIO. The words in brackets are new, and not in the Order or Statutes referred to. In llast'inys v. Hitrky, 16 Ch. D. 734, and in Sprout v. hd-ett, VV. N. 1883, 7« ; 48 L. T. l^^y, the time for making the in- dorsement was extended under Kulo 462. An order to amend the indorsement of service was granted where a wrong date was indorsed by mistake (Hi/ue v. Murphy, 2 L. K. Ir. 35). Holidays are not included in the three days. Rule 455. This Rule has been held not to apply to cases of substituted service, {Dinnotid v. Cro/t, 3 Cli. D. 512 ; Vrune v. Kuttinijvll, VV. N. 1875, p. 250 ; 1 (Jharl. C;h. C'a. 40,) or where notice in lieu of service, (see Rule 49) is given (Fixh v. Chatterton, W. N. 1882, 145; 31 \V. H. 87 ; 47 L. T. 328). 189. Bole 44. ORDER VII. SERVICE OUT OF ONTARIO. (Comp. K. S. O. c. 50, s. 48; R. Sup. C, 1875, Order 2, Rule 4 ; //;., Order 11, R. Sup. L., June, 1876, R. 5 ; G. O. Chy., Nos. 90, 100, 102, 620.) Previously to 2 William iV., c. 33, a writ from Chancery might Jurisdiction, he serveil out of the jurisdiction ; l)ut unless the party served chose l>t'fore Jud. to ai)pear, the suit could not lie proceeded with as against him. ^'^^' The following Statutes and Orders Ijearing on the subject were sub- sequently passed in England: — 2 Will. IV, c. 33 ; 4 and 5 Will. IV, u. 82 ; 3 & 4 Vict., c. l»4 ; 4 & 5 Vict. c. 52 ; O. O., May, 1»45 ; I.") & 16 Vict., c. 86, s. 3 ; Consol Orders, Order 10, Rules 6, 7, &c. The practical efi'ect was that in Kngland the Court of Chancery at the time of the passi'ng of the Judicature Act of 1873 coidd sanction service out of the juristlictiou in any suit. By the Provincial Statutes affecting the Court of Chancery, and the Orders maele by that Court in this Province, the Court had a like jurisdiction. [See Consol. Ch. Orders No. 101 ; 12 Vict. c. 64, s. 1) ; 20 Vict., c. 56, s. 21 ; Con. Stat. U. C, c. 12, s. 74, (K. S. O. c. 40, ss. y.S, 04). J In the Common Law Courts, the power of serving a defendant out At Law. of the jurisdiction was governed in England by sections 18 and 10 of the C. L. P. Act, 1852, and in this I'rovince by the ('. L. P. Act, Unt., ss. 49, 50 and 51 . These sections cover two classes- — ( 1 ) British subjects resident abroad, and (2) foreigners ; and their operation was limited in several respects. The authority given by the 44th and 45th Rules is more extended than that given by the Common Law . Procedure Acts. 'i hese Rules endjrace all the cases in which it seems intended that the jurisdiction of the English High Court sliould for the present be exercised ; and they will probably include all which the (^'ourt in Ontario will ordinarily sanction. But look- ing at the 47th Rule, the jurisdiction does not aj^pear to be confined to the specified cases, though its ordinary exercise may be. The statutory authority of the former Court of Chancery is to be In Chy. found in the Chancery Act R. 8. O. c. 40, ss. 93, 94 (following Con. Stat. U. C, c, 12, 88. 71, and 28, Vict. c. 17, s. 12. See also40 Vict., c. 7, Sch. (A), No. 50). "93. An absent defendant or respondent maybe served at any cii. Ord, 93. place out of the jurisdiction of the Court with a copy of any bill or ' I B^ 1 m M'- iii 190 ONTARIO JUDICATURK ACT, 1881. 76. 94 I ! Under Eng. Jud. Act. Rule 46. proceeiling withoiit an application being previously made to the Court for the allowance of such service, ant any indorsement, however full, upon the writ of the nature of the claim. (Siuniiiin'H v. Suiuini'rs, Mr. Dalton, (Jth Feb., 1882.) By Rule 400 no pleadings can l)e delivered during Vacation, ex- cept by leave, so that where it is necessary to serve a writ in vaca- tion on a defendant out of the juristUction an ai)plication for leave to issue and serve the writ may lie conveniently combined with a motion for leave to deliver a statement of claim. 47 3. The preceding Rules of this Order arc not s*y'""' "i" It- r ■ t rr i /-i existllij,' mtended to mtertere with or affect the powers of the junsiiiotion High Court or Judge thereof in the exercise of the jurisdiction heretofore possessed by any or either of the Courts hereby consoHdated, to direct on appHca- tion in that behalf, that service in any other manner may be good service, or that the time for defending shall be other than the time above named, or to give any special or other direction as respects proceeding against a defendant out of Ontario. {>See R. S. O. c. 50, ss. 48-51 ; G. O. Chy. Nos. 102,621.) See also liev. Stat. c. 40, ss. 93 and 94, in note to Rule 49. 48 4. It shall not be necessary before serving the writ, senue or notice of the writ, to apply to the Court or Judge "uMnrvums to allow the service ; but in case proof is given to the ^^^,^[1,,'^^^ satisfaction of the Court or Judge that the service was duly made and that the case was a proper one for service out of the Province under the preceding Rules, the service shall be allowed. (R. S. O. c. 50, ss. 49,51-) This Rule does not preclude an application for leave to serve the writ, though in ordinary cases a motion to allow a service already effected will be sufficient. Rule 422, which excepts such applications from the jurisdiction conferred upon County Judges and Local Masters, speaks of both kinds of application. See also note to Rule 46. This practice supersedes the former practice, under Rev. Stat. c. 50, 83. 49-51, of applying for leave to proceed where service has been effected out of the jurisdiction, (London, etc.. Guarantee Co. v. ShieMn, Mr. Dalton, 1st Sept. 1881 ; Martin v. Lafferty, 9 Pr. R. 300.) (t ft :f 196 ONTARIO JUDICATUHK ACT, 1881. Bales 48-51 Where ftn order for leave to serve the writ has been obtained it would a[){)ear to be unnocossary t(» apply after the service has been effected to have it allowed or to obtain any further liberty to sicn judgment. A doubt on the point arose in En^'land owing to the language of the form corresponding to Form No. 2. 'I he latter, however, does not contain the words creating the doubt in England (see Scott v. Boi/ol Wax Caiidte Co. 1 Q. B. ]). 4(t4 ; Bacon v. Turner, 3 Ch. I). '27r») ; but jterhaps on signing judgment an affidavit of identification may be re lb i r R' 'lUiiiii 198 ONTARIO JUDICATURE ACT, 1881. Eules 55-57 the circumstances of the case may require. (Comp. R. Sup. C. 1875, Order 12, R. 10 ; R. S. 0. c. 50,5.62.) Vhe English Rule has the word " shall " instead of " may." 'I"he time for ai)peaiing is ten days after the service in the ease of service within the juristiiction, and the day of service is inclusive. See Form So. 1, and Cornish v. MauniiKj, 18 C. L, J. 7(5, 143; 2 C. L. T. 1(15. In ca£;e of service out of the jurisdiction the time will be in accordivnce with Rule 46, or any special order in the action. In case of service by advertising the time dates from the last publi- cption [Crant' v. Jullion, 2 Ch. D. 220). (rt) In case a defendant does not require the plaintiff to deliver a statement of claim he shall so state in his memorandum of appearance, and in that rase shall serve a copy of such appearance on the plaintiff. [Sec R. Sup. C, April, i88o, R. 6.) 56 Entry of Ml nioran- dm II. Partners. 7. Upon receipt of a memorandum of appearance, the officer shall forthwith enter the appearance in the Procedure Book. (R. Sup. C, 1875, Order 12, R. 1 1 ; >SVc Rules of T. 'I' , i>56, No. i, Ont) The Book is in the English Rule named the Cause Book. 8. Where partners are sued in the name of their firm, they shall appear individually in their own names ; but all subsequent proceedings shall, nevertheless, continue in the name o{ the firm. (R. Sup. C, 1875, Order 12, R. 12.) Same as English Rule. For the provisions fur ascertaining who are the partners in a firm see Rule 1()(». If one of several partners does not appear, judgment cannot be entered against him separately. Judgment it recovered must follow the writ and be against tlie lirni [Jackmn v. Litchfield, 8 Q. B. D. 474). Execution, however, may be issued under Rule 346 against individual -'artners. Where an act) ■ was brought against a firm, .ind or.e of the part- ners individually, and the partner only appeared, but separate (de- fences were aftt-wards delivcicd l)y the partner and the tinn, it was held that the entered may perhaps be usel'u) y adopted where it is desired to obtain from ilefendant a waiver ol some irregularity (see LUirrirk v. Yumnj, Jac. 524), or t(» prevent a relitigation of tlie .latter in an action on tiic judgment in another country. The plaintill' should re([Uost the de- fendant's solicitor to enter the appearance before moving to attach {Jacubn v. Mayniiji, 7 Jur. 326). See also as to the enforcement of an undertiihing by a sidicitor given out of Court, WooUfin v. IVray, 51 1^. J. Cliy. 427. 61 12. A defendant may appear at any time before .^,j,','",r„„gg judgment. If he appear at anytime after the time \»''y^';« limited for appearance he shall, on the same day, give whuu uotko notice thereof to the plaintiff's solicitor, or to thegiveu!'" iiking. 'Jr I I |}: 1 200 ONTARIO JUDICATURE ACT, 1881. Bnlea 61-83 plaintiff himself if he sues in person, and he shall not, unless the Court or a Judge otherwise orders, be entitled to any further time for delivering his defence, or for any other purpose, than if he had appeared according to the writ (a) ; and if the defendant appears after the time appointed by the writ, and omits to give such notice of his appearance, the plaintiff may proceed as in case of non-appearance. (R. Sup. C, 1875, Order 12, R. 15 ; R. S. O. c. 50, s. 60). (a) The rule up to this point is identical with the English Rule. The remainder of the rule is taken from R. S. O. c. 50, s. 60, latter part. For the time limited for appearance see note to Rule 55. A form of notice of £t|)pearance will be found in App. B. No. 13. Appearance while the plaintiff is signing judgment is in time (Harris v. Andrews, 3 U. C. L. J. 31). If an appearance has been entered, but the plaintifl' nevertheless proceeds as if none had been entered, the proceedings are not null but merely irregular, and the irregularity may be waived (see Aluager V. Crifip, 9 Dowl. 353 ; Strannc v. Freeman, 5 Dowl. 407 ; Maple V. Woudgate, 1 B. & C. 79) ; but. under this Rule, where notice of an appearance entered after the proper time was not given, judgment signed disregarding the appearance was upheld (Smith v. Dobbin, 3 Ex. D. 338). 62 Appearance by person not named as a de- fendant. 63 Appearance by landlord 1 3. Any person not named as a defendant in the writ of summons for the recovery of land, may, with- out leave, appear and defend, by filing with his appearance an affidavit stating that he is in posse.'-sion of the land either by hinself or his tenant (as the case may be), and stating further, in case the posses- sion is by his tenant, that the defendant, named in the writ is his tenant.^ The affidavit may be in the form of affidavit numbered 33, in Appendix C. No corresponding English Rule. » The intention would appear to be that in simple cases in which leave would have been given under the former practice as of course, and an attidavit in the form given can be made by the defendant, no loave need be ai)plied for. Under s. 10 of the Ejectment Act (Rev. Stat, c 51) it was often a (juestion whether a person could be said to be in possession by himself or his tenant within the meaning of that section ; for example, a mortgage out of possession in an action against his mortg^igor (Mcl)vniiutt v. Keefiny, 7 U. C. L. J., 150, see also Uorris v. Smi/the, "2 U. C. I-. J. 212). In such cases it will be necessary to apply for leave under Rule 63, as heretofore. 14. [Where such rffidavit is not filed] any person fn actiorTVor not named as a defendant in a writ of summons for the recovery of land, may, by leave ot the Court or land. APPEARANCE. 201 Judge, appear and defend, on filing an affidavit show- Bales 63-66 ing that he is in possession of the land either by himself or his tenant. (R. Sup. C. 1875, Order 12, R. 18; R. S. O. c. 51, s. 10; Eng. C. L. P. Act of 1852, s. 172.) Except the words in brackets, the Rule is the uame as the Eng- lish Rule. For eases 1 ader the former practice see Harrison's C. L. P. Act, 518. See also notes to the preceding Rule. The Court will not on the application consider nice (juestions as to the light of possession (see Vroft v. Luviley, 4 E. & B. 614, and Thompson y. Tomkinson, 11 .•!x.,442). In Lomjhouniev. Fiiher, W. N., 1878, :J8, an equitable tenant for life was given leav«j to defend an action of ejectment in the place of her trustees, using their names and indemnifying them. 64 15. Any person appearing to defend an action forF"'™«fap- .1 /-I 11 1? 1 • . r peaniuee by the recovery of land as landlord in respect of property landlord, whereof he is in possession fin person or] by his ten- ant, shall state in his appearance that he appears as landlord. (U. Sup. C, iecial indorsement or, though the writ be not specially indorsed, to entitle the plaintiff to obtain tinal judg- ment under the Rule in the Irish Judicature Act corresponding to the present Rule {Kilynriff v. McUranc 8 L. R. Ir. .SM. ) The case of some defendants only nuiking default is not specially provided for as it is in the ease of a specially indorsed writ. Probably a statement of claim must then be delivered to the solicitors of those defendants who have appeareil, ami under Rule 131 to the other de- fendants. Forms of ju7. In Rule 74 subsec (a) the word "satislit-d" is hereby sub- stituted for the wonl " notified" in the third line thereof." 75 Where oiiiim J. Where the defendant fails to appear to the writ of ofgcM.as.masumiiions and the plaintiff's claim is not for a debtor Ealil"? liquidated demand only, but for detention of goods and pecuniary damages, or either of them, no statement of claim need be delivered, but interlocutory judgment may be entered, and the value of the goods and the damages, or the damages only, as the case may be, in respect of the causes of action disclosed by the indorse- ment on the writ of summons [shall be assessed as hitherto, or at the County Court of the County in which the action is brought if the solicitors for all parties reside in such County] ; or the High Court or a Judge thereof, may order that the value and amount of dam- ages, or cither of them, shall be a.scertained in any other way in which any question arising in an action may be tried, (Comp. R. Sup. C, 1875, Order 13, R, 6 ; R. S. O. c. 50, s. 152, Eng. C. L. P, Act of 1852,33. 28, 94.) DEFAULT OF AJ'PEARANCB. 209 This correapontU with the English Rule, exeunt that the latter Bales 76, 76 provides in the Hrst alternative fur a writ of imiuiry to asseHs the (laniages, instead of the clause above in brackets. The practice in actions at law formerly was, that the plaintiff, in the case provided for by this Kule, filed and served a declaration, imlorscd witli a notice to plead in eight days, and then if no plea were pleaded signed interlocutory judgment for want of a plea. Then damages were assessed. Under the present Rule, interlocutory judgment may be entered immediately upon default of appearance ; and the indorsement on the writ will govern the inquiry as to damages without any pleading. A form of interlocutory judgment will be found in Appemlix I., No. 152, and of judgment in default of appearance after assessment of damages, in Appemlix I., No. 154. It would seem that, under this Rule, where the action is brouglit for the specific recovery of chattels, the plaintiff may, upon default of appearance, have judgment for the delivery of the chattels ; and may then enforce that judgment under Rule 342 (Imry y. Vrnkk- ukank, W. X. 1875, 249, ^k/- Quaiu, J., at Chiimbers). In cases where interlocutory judgment only may be signed, the Rules do not provide for the signing of such judgment against some defendants by default of appearance, where other defendiints appear. In such case probably a statement of claim should be delivered to those who appear, and be served under Rule 131, on those who do not appear. Rule 73 makes provision for such contingency in cases of sfpecially indorsed writs. The former mode of assessment of damages was prescribed by R. S. U. c. 50, 8. 152, which is as follows : — " 152. .0 WTit of ini^uiry shall issue to a sheriff in cases of judgment by default, but, except in cases where the judgment ia final as aforesaid, the damages, when to be assessed by a judge or jury, shall be asertained at the same time, and in like manner as if the jiarties had pleailed to issue, and the entries shall be made in the roll accordingly." Probably under sec. 197 of R. S. O. c. 50, (p. 77) there may be reference to compute. Where a final instead of an interlocutory judgment was signed, and was therefore set aside, it was held under the former practice, that the plaintiff was not forthwith entitled to take out and tile the order, and sign an interlocutory judgment. The final judgment was held to be not set aside witliout an entry on the roll, and the defen- dant without laches could not be deprived of the cariiage of the order (Cavanaghv. Hastiimn Mutual, 7 Pr. R. 111). Notice of inquiry before a master to assess damjvges, may it would seem, be served under Rule 131. (See notes to that Rule.) As to evidence on such inquiry see MacdonaUl v. Antthne, W. N. 1884, 72. 76 8. In case no appearance .shall be entered in anAetionfor- action for the recovery of land, within the time limited '""^' for appearance, or if an appearance be entered but the defence be limited to part only, the plaintiff shall be at liberty to enter a judgment, that the person whose title is asserted in the writ shall recover possession of the land, or of the part thereof to which the defence 14 it t m ) ' m 210 ONTARIO JUDICATUUE ACT, 1881. R. 8. O. c. 61 H. 2u («). Eulea 76-78 docs not apply. (Comp. R. Sup. C, 1875, Order 13, R. 7 ; R. S. O. c. 51, s. 20 ; Eng. C. L. P. Act of 1852, s. 177.) This corrcHpoixls with the Englisli Rule, and is in subatance thu same as thu furmer iiractioe. A form of jutlgnient which may be aduptc-d to meet t>uch ca^e will be found in Appx. I., No. 14'.). This judgmt^nt does not carry costs, but it i.s presumed that the former practice applies under li. S. O. c. Al, s. 20, (2). That section is as follows : — " (2) In case no appearance is entered within the time appointed, and in case the plaintiH' tiles the writ, and an attidavit of personal service thereof, (or in case of service on a corporation, an afhdavit of service in the manner authoriztd for service on corporations,) and also tiles an athdavit that the party so served Mas at the time of the 'if»iw. of such writ in actual adverse possession of the land, or in- stead of such attidavits obtains and tiles a rule of C!ourt or Judge's order, allowinj^ him to sign judgment as well for his costs as for recovery of posses.sion •)f tlie lanil, ])laintitf may at once sign judg- ment that the pi rson whose title is assertetl in the writ shall recover and have possession of the land, and also his costs (to be taxed in the ordinary way), and the plaintiti' may forthwith issue execution thereupon ; and such last mentioned judgment may be in the words, or to the effect of Form No. 2, in the schedule to this Act, with the wt)rds following or words to the same efl'ect added thereto, namely : " diitl do nlso rfcorn- aijniimt t/ir .saiii (. £>. (the defendant) $ /or /li.s t(w/.< of nidt. 77 AsHcssiiient of tliimages ill nciiDii for laiiil. 78 Judgment on i)ra;ciiie in certain casest Q. When the plaintiff has indorsed a claim for mesne prohts, arrears of rent, or damages for breach of con- tract, upon a writ for the recovery of land, he may enter judgment as in the last preceding Rule men- tioned, for the land ; and nia}' proceed as in the other preceding Rules of this Order, as to such other claim so indorsed. (R. Sup. C, 1S75, Order 13, R. 8 ; R. S. O c. 51, s. 70; Eng. C. L. P. Act of 1856, s. 257.) This is the same as the English llule. The former practice confined this right to the suit of a landlord against a tenant. ^o claim other than tho.se mentioned in the Kule can, without leave, be joined with a claim for the recovery of land (see Rule 11(5, pout). A form of judgment which may be adapted to meet such cases will be found in Appendix 1., No. 151. 10. Where the action is in respect of a mortgage, and ihe plaintiff claims foreclosure or sale, or redemp- tion, or where the action is for the administration of an estate, or for a partition, the plaintiff shall be entitled to a judgment or order on p/cscipe to the Registrar, Deputy-Regi.strar, Local Registrar, or Clerk or Deputy- Clerk of the Crown and Pleas, as the case JUDGMKNTS ON PRECIPE. 211 may be, on such evidence (if any) and in such cases Rule 78. (as nearly as may be), as provided for by the present practice of the Court of Chancery in that behalf, (a) in which, the rifcreiur. r/ten required bij the prarfire shall he 10 the Mdster nr Loenl Master (G. v ). Chy. Nos. 3(S, 435, 436, 645-648). The concluding wdnls from (rt) wore added hj' Rule 502 to pre- vent any iloiiht as to the persona to whom tl»c reference should bo directed, where a jiidgmeut ret^uiring a reference was issued by a (!lerk or Deputy (Jlerkof the Crown and I'leas. It seems tolerably clear that sec. 02 of the Act and Rule 417 worked the same result. Where the action is commenced in a local ottice the judgment s'l mil be outereil in the local ottice [Vlmniherlain v. ArniHtromj, 9 Pr. K. 212). Where a reference is necessary as to incumbrancers the plaintiff 's account of any amount payabje under defendant's covenant is taken by the report and not by the Registrar, and defendant will 1>e ordered to pay torthwith after the confirmation of the report (North of Si'titfdiul V. Jii'dnl, 9 Pr. R. 54(5). The practice in J'lngland is to order payment one month after the date of the (Jhief (jlerk's certifi- cate {Lres V. Fii/ier, W. N. 18S0, (2; Faeri-r v. Larei/, 32 W. U. .-{84 1. Tlie ( ieneral Orders 38, 435 and 436, referred to as forming the liasis of the Rule, only treat of cases of foreclosure, sale or redemp- tion ; and the practice of the (^'ourt of Chancery diil not enal^le a [)laintiff to obtain a decree or order on prmnpe in other cases. Orders 038 and 040 provide for administration and partition being obtained in a summary way on motion. So forms of judgment on prifcipt- in administration actions are given, though forms in cases of foreclosure, sale and redemption are prescrilted (see Appx. Nos. 108, 170). It is [tresumed tliat the intention of the Rule is, to enable a judgment to be signed on prixeipi; upon the production of evidence similar to that reciuired by the practice of the Court of Chancery under Orders .'iN, 435, and 430 in cases of foreclosure, &c., where no answer was tiled, and that the judgment in administration and partition cases will be similar to the form urovided by the practice in Chancery where the application is maue to a Local Master on motion (see Appendix, Forms 171 and 172). Except where personal service had not been effected, the Chancery practice in cases of foreclosure, &c. , did not require any proof of the claim ; the order on pnecipe was made on productiim of an office copy of the bill and proof of the service ((.Jen. Orders 430 and 640). This Rule, like the rest of the Rules under this Order, is only applicable in cases where default lias been made in appearance. Where an appearance has been entered in any of the cases referred Foreclosure, to in this Rule, a judgment cannot be signed on pnncipe under this ^"'e and re> Rule. If, however, a statement of defence is tiled admitting facts where ap- sufficient to entitle the plaintiff to a decree under the former practice pearance in Chancery, a decree on pr,'agee, or of any one under whom he claims ; and when there has been any such occupation, the alHdavit is to state its nature, the time it continutii, and the fair rentable value of the property. " 433. Upon producti(m of such proofs and documents, the Court may at once determine tlie anu)unt due, and appoint the time and place for the payment of the mortgage money, by the decree, with- out a reference to the Maiter, or any further inquiry." The proofs, &c. , referred to are retjuired where the account is to be 'aken Vy the decree without a reference (see Chy. Order 43'-'), and are also reciuired 'vhere the wiit has not been serveil personally (see Chy. Order 040). JUDOMKNTS ON PRAECIPE. "434. In an ordinary suit of foreclosure or sale against an infant heir or devisee of the mortgagor, or of the assignee of the mortgagor, where no defence is set up in the infant's answer, the cause is not to l)e sot down to l)e heard in Court by way of motion for a dfoice ; l)ut after the infant's answer is filed, or after the time for tiling the same has expired, the plaintitf is to file affidavits of the due execu- tion of tlie mortgage, and of such other facts and circumstances as entitle him to a decree, and is to apply for the decree in Chambers, upon notice to the infant's solicitor. ' This Order was held to apply only where all the defendants were infants. Where some were adults judgment had to be ol)tained on motion in Court (Fulh'rton v. Kr-cii/, !> C. L. J. 541 To enable a decree to be made in Chambers in all such suits where infants wt-re defendants, Order (545 was passed. There is a further extension by ( >rder (541}, infra. Order Gt5, is as follows : — "()45 Onler 4S4 shall apply to cases in wiiich an adult is inter- e.sted in the estate as w<;ll as an infant, and also to suits iov redemption. "435. Where the d^^fendant answers the bill, admitting the execution of the mortg.ige and otluT facts, if any, entitling the plaintiff to a decree, or wliere the ilefendant disclaims any interest in the mortgage-! ]»romises, fir where no answer is put in to the l>ill, the plaintiff is, on pr:i'cipe to the Registrar, ' > be entitled to such a decree as would under the practice of the Court have been made upon hearing of the cause jn-ii rau/'issu." It has been held that since this < )rder, any lecree for foreclosure or sale may be issued on pripciju' wijich the ( 'ourt could formerly make on a hearing jtro CDii/rssu. and therefore a decree t'or sale with ]iersonal onlers in case of a deliciency against the mortgagor and his surety was issued [Kirk/xitrir/: v. Hmrell, '2;! (ir 5*4) ; but wliere an injunction is desired, the case will probably still have to be brought before the (jonrt on motion for judgnu'iit (see Kini) v. Fri'i'- iwin, \ Chy , Ch. 350 This Order governs lik' case where a disclaimer is filed, or a defence atlinitting facts entitling the plaintiff to a judgment (Tnisl ,i- A mn V. MvHtirthfi, suftrd). Order 6H) extending this Order is as follows : — "()i(i. Order 435 shall apply to reder.i; tion suits; and under Orders 434 and 435 there may be gr.■vn^t■', where it is prayeil for. arul notice is given in ]>ursuance of Order «)47. a decree embracing the additiimal relief which this Court is entitled, under "the Ailmmi.'stratiftn of Justice ,\ct, " to give, in nmrtgage ('iues, on the hearing of the cause pro roiif'isso, ami such a decree may be granted, notwithstanding that the defendant his been served by publication, or otherwise, or is a Cf)rporation ; j)rovided always that wheie the 1)111 has not been iiersonally served the claim of the plaintiff shall he duly verified by afiidavit." A Deputy Kegistrar under Gen. Order 38, hail jtreviously, thcmgh the Registrar had not. the power to issue redemption decrees on pneci/te. The power to give additional relief referred to. is that now pos- sessed by all Divisions of the High ('ourt of granting in one sviit, all the kinds of relief a mortgagee may l)e entitled to, such as 213 Rule 78. Ch. Oiil. 434. Jiidginunt in Cli.iiiiliers :iK.iiiist infantR. f If ■f Ciiy. 045. Onler Cli.Ord. 4S5 Juilgiiii'nts oil jiriiripe. ■A Cliy. Order ti4t3. Kxten- siiindf Ordt-r 4.'I5. .Iiiilnment nil OiiV('ti:int :ui. • for immediate payment against a defendant, he must, in a the notice required by Schedule 8, indorse upon the office copy of the Itill served upon the defendant, the further notice : ( Where order for immediate jmsseasion prayed) : ' And the plaintiff will be entitled to an order for the immediate delivery of possession of the mortgaged premises to him.' ( Where order for immediate payment prayed): ' And the plaintiff will be entitled forthwith to execution against the goods and lands of you (ncinintj the defendant against whom the phiintif in entitled to this relief ) to recover payment of the amount due by you.' " I'hese indorsements will now be made under Rule 17 on the writ of summons (see Form 9, in App. A). < )rders for payment and possession may be granted on a counter- claim on a mortgage though not asked for by the counter-claim, as this Order and Ruhi 17 do not in such case apply (Klein v. Union, dr., 3 Ont. 250). "648. Every Deputy-Registrar shall have the san j power, as to tlie issue of decrees on precipe, as, by Order 646 and the Conaoli- datcd (ieneral (Jrders, is given to the Registrar of the Court." i'he Forms of judgment to be issued under Itulc 78 are to be found in App. .Nos. 168 and 169. Where a reference is required the form 168 will doubtless have the same effect as a decree under G. O. 441 and will be read as if it contained all the provisions of G. O. 442-454. Order Chy. Ordbr 648. LEAVE TO SIGN JUDGMENT. 215 See, for further provisions in regard to forecloaure and reilempti()n Roles 78-80. suits, Rules 332-337. 79 II. Where the action is for the foreclosure or •'"'•«"'«"* . WlltTt) redemption of a mortgage, or sale of mortgaged pinntiffnot premises, if the plaintiff is not entitled to a judgment j*,"i|r,nent**on or order on prcccipe or would not according to the i""^'^'!'''- practice of the Court of Chancery be entitled on piwcipc to such a judgment or order as he desires, he shall be entitled to the prt)per judgment or order, on notice or otherwise, according to the practice of the Court of Chancery where a cause is heard on an order to take the bill pro confes.so or otherwise. (»St!e' G. 0. Chy., Nos. 113 e.f, srq., 432-434.) It is presumed that this Rule liko the last refers only to cases where default has l)een made iu appearance. \. judgment or order ou pnecipe cannot be obtained in such cases — ( 1 ) Where infants are defendants ; (2) Where some special relief is asked for, such as immediate fore- closure or sale (see note to Rule 78) ; (S) Where the writ has not l)een indorsed suHiciently under Rules 1 1-14 and 17 to give the defendant the information contem- plated by those Rules, .as by the former notice indorsed on tlie bill and referred to in Chy. Order 436 nupra. (fSee PherrUl v. Forbifx, S Pr. R. 408.) Where infants are defendants a judgment will be obtained in Chambers, as Heretofore under T'hy. (J. O. 434, and 04."), on notice to the guardian ad litem. Where special relief is asked, or full particulars are only given by statement of claim, the case will have to be set down on motion for judguient (see note to preceding Rule). In cases where the writ miglit have been indorsed so as to enable plaintiff to obtain a judgmen on priBcipe the extra costs of moving for judgment will not be allowed. The Chancery Orders referred to are 432-434, for which see note to the preceding Rule. ORDER X. 80 LEAVE TO SIGN JUDGMENT WHERE WRIT SPECIALLY INDORSED. I . Where the defendant appears to a writ of smmons Lr.we to specially indorsed, under Order 3, Rule 4, [(./j and trie|uagi,i'"nt. plaintiff is not entitled to a judgment or order, under the preceding Order,] he may, on an affidavit (h) made by himself, or by any other person who can swear positively to the debt or cause of action), verifying i • 1 . : i ; 1 1 1 1 1 ■1 , I I J 1 i ' ,'■' 1 W^^' ^:i '. 'I ): r ): ; i m '"I il-iil .1 ifl! 'is ik 216 ONTARIO JUDICATURE ACT, 18)^1. Bale 80. the cause of action, and stating that in his bcHcf there is no defence to the action, [serve the defendant with a notice of motion] to show cause before the Court or a Judge why the plaintiff should not be at liberty to sign final judgment for the amount so indorsed, together with interest, if any, and costs, A copy of the affidavit shall accompany the (c) notice of motion. Tiie Court or a Judge may thereupon, unless the defendant, by affidavit or otherwise, (^0 satisfy the Court or a Judge that he has a good defence to the action on the merits, or disclose such facts as may be deemed sufficient to entitle him to defend the action, make an order empowering ihe plaintifif to sign judg- ment accordingly. 'Comp. R. Sup. C, 1875, Order 14, R. I ; R. Sup. C. May, 1877. R. 3, which repealed R. Sup. C. 1875, Order 14, R. i.) ((f) Tlu'so words in brackets are not in the Knylish Rule, (h) In- steatl of the words in brackets here tlie English Rule has the words ''call on the defendant." {<') 'I'he English Rule has here the words ''summons or." The Rules are otherwise the same. 'i'he words in brackets (A) have been ii'.troducod in conseijuence of the decision in Ihink of Moutnal v. Cdtiicmn, '2 ii. B. 1) r^lUi, where it was held tliat since, under the original Rule, the atlidavit was required to be made by the plaintiff himself, the Rule could not ai)])ly where a corporation was plaintift'. ((/) By reason of the words "or otherwise," it was held that the reasoning in liutik of Moiitretil v. ('ami'rmi {.tiij).} did not apply, and tiuvt therefore a plaintiff . ay apply for judgment under this Rule where the defendant is a corjtoration (Shelfnrd v. Luuth <(; E. C. R'y to., 4 Ex. I). 'Ml). Leave to A power analogous to that conferred by this Rule was formerly ex" sign juilg- ercistd in the Common Law ( 'ourts in < hitario since the Adniinistra- ment. ^j,,„ ^f .Justice Act, in cases where pleas M'ere put in for time ; and that ])ractice may in such cast s still be .appliecl. In such u case, if l)y an examination of a defendant hin pleas were shewn to be un- truu, an order migiit lie obtained in Chambers striking out the pleas, so that th(! |ilaintitf" could sign juilgmeiit in default of plea (see Afr- Afitsfi'r V. lifdltlc, () I'r. U. \{V1 ; Ihirix v. Coilr, 7 l^r. R. '2 ; Jithuxiiii V. JofiiiHoii, /I). '288 ; fni/irrinl liiiiik v. SiDnnurfi'lt, Ih 3'20). 'I'lie ( 'ourts would not however strike out a [)lea )ij)on the plaintiff's athdavit, liut reciuired a clear admission l)y the defeixlant that there was no real defence (see Arcli. I'r. '2!t'2, I •2th ed. ; Turner v. }i('iU, () Pr. If 'im-, PiiHt V Lnis, 7 I'r. R. 3.>7 ; The Qin'm Ins Co. v. lioi/i/, fh 'M9). In an ejectment suit brought ))y mortgagees, though the defendant admitted that he ajiptared and defended for time, it was nevertheless held that the apjiearance and defence could not be struck out, as the defendant was eiititleil to possession until tlie plaintiff should prove his case {Mctrnpolitnn B. it- S. Soc. v. Jiodilcn, G Pr. R. '2'M). Under the present Rule the onus is thrown up(»n the defendant of shewing that he has a defence, where it is sworn on the part of the plaintiff that tiiere is none. LEAVK TO SIGN JUDGMENT. 217 As the remedy here given to a plaintiff is a new antl special one, Rule 80 the (lucstion arose whether it can only be given according to the terms of the Rule, viz., where a writ is specially indorsed under Order 3, Kule 4 (Rule 14) The Rule was hehi by Quain, J., not to apply in the case of a writ served l)efore the commencement of the Act {Anon, L. T., Dec. ISTt'i, I Charl. Ch. Ca. 45 & 46). An order was however mjvdo in such a case by Lindley, J , in Anon, W. N., 1S76, I'J ; 1 Cliarl. ("li. ('a. ;"»'», where it was held that sec. 22 of the Act (Ont. Act s. 11) gave power to do so ; and by Huddleston, B. , in Anon. \\ . N., 1875, '21)0, 1 Charl. Vh. l.'a. 49,'where the defen- dant did not a[»i)ear ; and in Ih'nixon v. Fnink'/i/n, OO L. T, 17(5 ; 1 Charl. i'A\. ('a. 51, where the writ had been reneweil sub.se- (juently to the oommencenient of the Act. I'luler the Ontario Act it was held by Mr. Daltnn, the .\lasti;r in ( 'hanil)ers. tlidC 'he Kule apjdieil in a case where the writ was i.ssued uh''.. che forniv '• prac- tice ( Wilson v Pi'ni/f'lli/, 1 Sept., 1881, ami CVi ii' v. O'lh-hn, 9 Sept., 1881). In iMigland it has been said that the jiower given V)y this Rule is Wlien Rule intended to l)e exercised where it is shewn from an acknowledgment "Pl'iies. by the defendant ot" the debt, or from other circumstances, that the defence is only for time (///'>*/(/ s lidiikinn Co. v. 'iiilf, 1 Kx. I>. 202 ; Tk>mimon v. '.Mar.sh^ill, 28 \V. R. •.>2(>). Where tlie nature of the ciim iinoives the taking of accounts between the parties, the ordei is not ajijdicabie ( Wol/inij/onl v. Mutual Sociclj/, 5 .Vjip. (,'a. (585. M.. whtre sometliing beyond the recovery of money i« sought {Fi-ll v. ]Villi(tni.<. ',\ C'. L. 'V. v)58 ; Stamlurd Hank v. 'W\ goods supplied during covoiture, orders were made directing Jiii oiKpiiry as to the existence of any separate estate charge- able witii tile sum claimed and declaring the .same to be charged there- with [Dn.rraid v. lUckeUs, 8 Q. B. I). 177 ; 18 C. E. J. 160, and see Pike V. Fifzijibhon, 17 Ch. I). 454 ; and notes to Rule 97). The .blaster in ( 'hambers or a (••iinty Court Judge under Rule 422 has jurisdiction to entertain aif^lications under the jjresent Rule (Canada Landed Credit Co. v. McCa$-thy, Ist Sept., 1881, Mr, Dalton, Master in ( 'hanibers). In applications to a County Court Judge the procedure will be by summons instead of notice of motion (Rule 425). Time for No time is limitetl within which an application maj' be made, and moving. it hag tiierefore been held fco he regular after statement of claim dehvered {Hnfte v. Neil.l. I'Jth Sept., 1881, Mr. Daltim, ami see Unnmer v. FlKjId, .% L. T. 27^). It is held in Indan*! uniy V. Cvoper, 40 L. T. 21); 27 W. It. 224, it was held Materials, that the ni;iking of the plaintiff's affidavit was not a con (see Jiunnacles v. MvHquUa, 1 Q. B. D. 41G). In the High C!ourt of Justice. Q. B. [or "C. P."] Division. Between A. B., Plaintiff, and C. D., Defendant. I, A. n., oi , the above-named plaintiff, make oath and say as follows : 1 . This action was commenced on the day of , 18 , by a writ of summons specially indorsed witli my claim herein, iu pursuance of the Rules of the Supreme Court (Order 3, Rule 4, marginal number 14). 2. My said claim so indorsed is for [here state the claim ax in the indorsviiient]. 3. The defendant appeared in this actioK on the day of , 18 . 4. The defendant at the commencement of this action was, and still is, truly and justly indebted to me in $ , in respect of the matters in the said indorsement mentioned. 5. That [here stale an concisely as is consistent with clearness the facts upon which the plaintiff's claim is foundid. Mere matters of evidence need not necessarily be stated, but a good cause of action must be dis- eloned, and the plaintiff's claim in respect of it verified, and in some cases it may be advisable to state the evidence by which it is supported. The form of the affklavit must necessarily vary accordinij to the fa/'ts of each particular case. The statement of facts m,ay be confined to one paraijraph or divided into several, as may be founil most convenient. Each paragraph should contain, as far as possible, a separate alhga- tiun of tact. The affidai-it should be made as strong as possible, and (lint i'licti tendtuij to show an Oilmission of the claim by the defendant should be distinctly slated]. ■ 1 : /I • m t i i L. , lMm 220 ONTARIO JUDICATURE ACT, 1881. Eule 80- ^- Tn my l)elief there is no dofenco to this action, Jiutl the appear- ance has V)een entered for purposes of delay only. Sworn [&c., nit tMitul]. This alKdavit is tiled [&c. , as u.'tual ]. ■Wliat (lefen- < >n such a motion the only question to he determined is whether thall, 5 Ch. D. 877). The Judge or Master does not pretend to try the action {AnUrcwfi V. Strwar/, -2 Charl. Ch. Ca. .")U ; W. \. 1876, 7); though to a certain extent the question of liability must l»o entertained in scrutinizing the defence to ."vscertain if it is fair jvnd reasonable {P/iillipM Y. Harris, W.N. 1876, 54; 2 Charl. (Jh. Ua. 20; Anrne v. Svel, \V. N. 1878, 215 1 ; or grounds for fairly disputing the claim iRunnarlesv. Mes'juita, 1 Q B. I). 416); or that the matter is so doubtful that it ought to be allowed to go to a jury (Andrews v. Stewart, and Jierk'ini//iam v. Owen, supra ; Anon. W. N. 187(5, 04; Berrid«'., 1870, 12) ; or only an affidavit stating that tliere is a good defence without stating what it is ( Waltimj/ord v. Miilnnl Soc. supra) ; though an opportunity of tiling a better affidavit may be given (Paxcat v. Stone, ttnpra) ; or if no fairly arguable defence be shewn (An(flo-Ilali(in Bunk v. Wells, 38 L. T. 197 ; Thome v. Seel, W. N., 1878, 215; Anon, W. N., 1870, 23; 2 Charl. Ch. Ca. 18; Emt Amim etc., v. Boehe, W. N., 1875, 238 ; I (Jharl. Ch. Ca. 40). Judgment was onlercd to be signeroceedings in l>ankrui»tcy (Anon. \\. N., 1875, 220; W. N., 1870, 23; Clifford v. Budds, W. N., lf>84, -10). So where in an action again.st two defendants one a«l- initted the debt and let judgment gf> l)y default ami the other only deposed that he was willing to pay his share anil that his co-defeu- ilant was acting in collusion with the plaiutitl (East Assam Co. v. Jt'uchc, \V. N., 1875,238). l:^xecution was stayed to enable defendant to a{»]ieal in Anifto- Italian Bank v. IIV//*', 3^ L. T., 197. (2) Leave t't defend uiieonditionaUij : — This will be the order where Leave to du- the aHidavit shows what the ilefejice is, and gives reason for tliinking 'f.".'! uiuou- that it is sul)Htautial, and may be sustained i)y evidence (liunnacles ' ' '""'' ^' V. Mesi/iiild, I Q. 1>. I). 410). Wliere the defendant was a surety, and had not aoknowltilgcd his indebtedness, and there was nothing to show tliat tlie defence was merely for delay, he was hekl entitled to put the plaintiff to proof of his claim, ami was admitted to tlefeud (Ltoi/d's Banking Co. v. Oyle, 1 Ex. 1). 202). So also where a set off was shewn exceeding the plaintiflTs claim [Uruo-m v. A'athham , 41 L. T. 591 ; but see Branivhite's case, 40 L. T. ()52) ; anil where it was allegetl that the plaintitt's affidavit was untrue, and the defence was stated to be that the services for which the plaiiitiO claimed remuneration had never been performed {Ameiinij \. Nawah Nazlm of Beiujal, W. N. 1875, 239;, 1 Charl. I'll. Ca. 47) ; and where the plaintiff' in an action on a promissory iit/te allegoil, but diil not state in his affidavit, that he was a honajide holder for value, and the defendant swore to the defence that the bill was drawn in fraud of him, the defenilant was helil entitled to defend unconditionally as the onus of proof was on the plaintiff that he was a bona fide holder for value (Fuller v. Alexandtr, 47 L. T. 443 ; 52 L. J. Q. B. 103). (3) Li-ave to defend on payment of money into Court withli. a. reason- On toiuui. able time, or on other terms : — Where it is not clear that tlr;re is a MX 222 ONTARIO JUDICATURK ACT, 1881. Bale 80' (l<^f(^B) l»it the defendant shewn such a state of facts as leads to the inference that at the trial he may be able to establish a good defence (Itny v. Barker, 4 Ex. D. 271»). In Anon. h. T. 4th Dec, 1875 ; 1 Churl. Ch. Ca. 45, Quain, J., f^ave leave to defend where a proper counter-claim was the defence, >ut conlincd the defence to the counter-claim. In It„herfa v. Gui-nt, W. .N. 1876, 10; 1 Charl. Ch. Ca. 53, judgment was ordered to be siKued unless the defendant paid the money into Court where the defence was a counter-claim for costa in a, suit in Chancery, in which an order for the costs had not been obtained. See also Germnn Bniik v. Scfnnidt, VV. N. 1876, 10, and as to the amount to be paid. Oriental Bank v. Fitzije.rald, W. N. 1880, 119. Where tlie defence to an action by the holder on of a bill of e.vchaiige was sworn to be that the acceptance was obtained by fraud, CO wliicli tiio plaintiff replied that he took the bill for value and without notice of any fraud, it was held reasonable to give defendant leave to defend upon payment into C!ourt of the amount of the bill {BriKiks V. Ai/lntcr, TA L. T. Jour. 80). In an action by a company on a call a clerk of the company swore that notice of allotment was duly posted to defendant. Defendant ^ swore tliat the letter was never received, it was held that this con- stituted no defence (see HouHrkold Fire Innardnce Co. v. Grant, A Ex. D. 210), but the dofeudant was entitled to cro.ss-examine the clerk who swore to the posting, and leave was therefore given to defend on i)ayment into Court (Carta Para Gold Minimf Co. v. FiLsfrndije, liO \\\ 11. 880). Where the defenilant shews what his defence is and his reasons for thinking it substantial and it appears to be fairly in dispute, he ought not to be ordered to bring money into Court {Jtunnncles v. M<'.-<,,„ila, 1 Q. B. D. 416). Where in a claim for payment of sums of money, the tlefence .set up is that of a denial and contradiction of the accounts on which the claim is fountled, it is erroneous to make an order under this Kule refusing leave to defend, except upon the condition of the defendant paying into Court, a delinite sum within a certain time, an2), other- wise it is held in Kngland that judgment may be obtained by default, even though no statement of claim is eal against the Appeul. discretion thus exercised will hardly ever be entertained (Papaifanni v. CoutpuH, W. N. 1880, 109). 81 2. The application by the plaintiff for leave to enter pro.wime. (a) judp;ment under the last preceding^ Rule shall be made (b) on notice returnable not less than two clear days after service. (Comp. R. Sup. C, 1875, Order 14, R. 2.) (a) The English Rule has here the word "final." (b) Instead of "on notice," the English Rule has " by summons." The Rules are otherwise the same. The application will be made in Chambers. For form of the notice of motion see App. U, No. 11. 82 ' If:! } :. .1 cause. 3. The defendant may shew cause against such ^h'^'wUiR application by offering to bring into Court the sum indorsed on the writ, or by affidavit. In such affi- davit he shall state whether the defence he alleges goes to the whole or to part only, and if so, to what part, of the plaintiff's claim. And the Judge may, if he think fit, order the defendant to attend d be 4 B t ') J^ IMAGE EVALUATION TEST TARGET (MT-3) 1.0 I.I 1.25 ^1^ m IS Ki III 2.2 Muu U 11.6 Photographic Sdences Corporation 23 WEST MAIN STREET WEBSTER, N.Y. HS80 (716) 872-4503 i/.A 224 ONTARIO JUDICATURE ACT, 1881. Bulea 82-84 examined upon oath ; or to produce any books or documents or copies of or extracts therefrom. (R. Sup, C. i«75, Order 14, R. 3) Identical with the English Rule. The affidavit must be made by the defendant himself, where he ia a person who can make an affidavit (Muirhead v. Direct U. S. Cable Co., 27 \V. R. 708 ; Shelford v. Loutk, dr., 7?'// Co., 4 Ex. D. 317). Although a defendant, a corporation cannot make an affidavit, the Rule nevertheless applies, and the corporation must show cause under the words "or otherwise " in Rule 80, i e., Vjy some other means than the affidavit of the defenilant (//>.) The defendant's affidavit must disclose the defence (Paacal v. Stone, p. 20). 83 DefiMice its to iiart. mere affidavit that he has a good defence is not sufficient (per Quain, J., Anon, 1 Char. Ch. Ca. 48 ; VV. N. 1875, 240, 2o0). The affidavit will not be insufficient merely because it contains only hearsay evidence (Harrison v. Bottenheim, 26 W. R. 362). The application may be adjourned, if liccessary, for better par- ticulars of the plaintiff's claim (Aston v. Hurwitz, W. N., 1879, 194). In Anon, 60 L. T. Jour 176 ; I Charl. Ch. Ca. 52, on an appeal from a Master who had ordered money into Court, a fresh affidavit not used before the Master being read, leave to defend uncondition- i>.'^j wys given. I he Judge may, in his discretion, allow the plaintiff to file alfi- vo.\ *•-, i.i rev''y to the defendant's athdavit (Davis v. Spe.nce, 1 C. P. 0, 7''*, this case waa not approved iu Nort/t Central iVaifijon Co. v. 7 /( ' N Wales Waijgon Co. , 3d L. T . 628, but has been followed iu Ci, vj.-i V. Grepe, 13 Ch. D. 174). The liiiug of an affidavit in reply, uiv.ier this Rule, is however not a matter of right (Rotheram v. l^riisl, 40 L. J. C. R. 104 ; VV. N. 1870, 100). 4. In any case if it appears that the defence seL up by the defendant appHes only to a part of the plain- tiff's claim, or that any part of his claim is admitted to be due, the plaintiff shall have judgment forthwith for such part of his claim as the defence does not apply to or as is admitted to be due, subject to such terms, if any, as to suspending execution, or the pay- ment of any amount levied or any part thereof into Count by the sheriff, the taxation of costs, or other- wise, as the Judge may think fit. And the defendant may be allowed to defend as to the residue of the plaintiffs claim. (R. Sup. C. 1875, Order 14, 11. 4). The English Rule has not the words " iu any case " at the beginn- ing antl has the words "the amount" instead of the words "any amount. " The two Rules otherwise correspond. See the Rule applied iu Hannitr v. Fliijht, 24 VV. R. 346 ; 36 L. T. 270. !See notes to Rule 80. 84 Where 5. If it appears to the Judge that any defendant has defeudaiits. ^ good dcfcnce to the action, or ought to be permitted JUDGMENT FOR ACCOUNT. 225 to defend the action, and that any other defendant Rules 84-36 has not such defence and ou^ht not to be permitted to defend, the former may be permitted ro defend, and the plaintiff shall be entithxl to enter fi»"'-i! Jdi,^- ment against the latter, and may issue executi • i ipon such judgment without prejudice to his right to pro- ceed with his action against the former. (R. Sup. C, 1875, Order 14, R. 5.) This Rule is new and corresponds with the English Rule, See notes to Rule 80. 86 6. Leave to defend maybe eiven unconditionally, p-'^'-t" de- , . , ^ .' . . , -^ feiiil luav be or subject to such terms as to giving security, or other- ui..s.)iutL-"or wise, as the Court or a Judge may think fit. (R. Sup. '""""^''^"^^ C, 1875, Order 14, R. 6). Identical with the English Ilule. See notes to Rule 80. Where leave is given to defend, see Rule 1G2, as to the time within which a defence is to be delivered. J. - ' ' Am- ij ■- i/ , ■' ORDER XI. APPLICATION FOR ACCOUNT, &c., WHERE WRIT IN- DORSED UNDER ORDER III., RUI-E 6. 86 I. In default of appearance to a writ indorsed under Actmu for Order 3, Rule 6, and after appearance [in a case di '*'"'"" which the preceding Orders do not entitle the plaintiff to a judgment or order on pntcipe or otherwise, then] unless the defendant, by affidavit or otherwise, satisfy the Court or a Judge that there is some preliminary question to be tried, an order for the account claimed, with all directions now usual in the Court of Chancery in similar cases, shall be forthwith made. fComp. R. Sup. C, 1875, Order 15. R. i ; G. O. Chy. No. 467, etseq.; R. S. O. c 50, ss. 189-197; Imp. Act, 15 & 16 V. c. 86, ss. 45, 47 ; Order 9, R 10). Same as the English Rule except that the words in brackets are mew. Order 3, Rule (marginal number 10), provider for the indorse- iiuidrsenient ment of a claim for an account in all cases of ordinary account, sucli of claim for as a partnership, or executorship, or ordinary trust account, where '*^''^'"^'"^ 15 * j8 if. I i ' Mil m ;■<■ \hi 22G ONTARIO JUDICATURE ACT, 1881. Rules 86, 87 ^^'^ plaintiff tlesires to have an acuount taken in the first instance. The present Rule j»rnvir/fc V. Stown-H, W. N., 188:^. 174). Bef(jre taking proceedings under this Rule, the plaintiff must tile an atii, ■•iiipra. Although Rule 8(5 should be considered to apply in some cases of administration and partition, it is probable tliat nevertheless a judg- ment or order will in sucli cases be most appropriately obtained in the manner mentioned in this Rule. 88 Orders for adniinistro- tion, partition'or sale. ORDER XII. [Sec. R S. O. c. 50, ss. 73-83). PARTIES. 89 I. All persons may be joined as plaintiffs in whom who may be the right to any relief claimed is alleged to exist, [Stiffs, whether jointly, severally, or in the alternative. And, without any amendment, judgment may be given for such one or more of the plaintiffs as may be found to be entitled to relief, for such relief as he or they may be entitled to. But the defendant, though unsuccess- ful, shall be entitled to his costs occasioned by so joining any person or persons who shall not be found ■ -t . ■,'i . ' 1 , .,: i . kr'".. y ? 1 1 \ 1 ; ; ; I; \ i\ ''-i a -li,t\ ^1 v'l'ii 228 Bale 89- E. S. O. 49, s. 5.! ONTAKIO JUDICATURE ACT, 1881. entitled to relief, unless the Court in disposing of the costs of the action shall otherwise direct. (R. Sup. C, 1875, Order 16, R. i , R. S. O. c. 49, s. 5.) iSamc aa the English liule, the last elause of which is taken from sec. 19 of the C. L. P. Act of 1852 (see Day's < '. L. P. Act). The oliangfs introduced into Knji;huid hy the Judicature Act were very material changes. Most of tlieni had in Ontario been alreaiiy made part <>i the jurisdiction and ]iracticc of the Common Law C(jurts by the Administration of Justice Act, Pk. S. U. c. 49, s. o, which pi'ovided tliat— "0. For the purpose of carrying into efl'cct the objects of this Act, and for causing complete ami iinal justice to be done in all matters in question in any action at law, the Court or a Judge thereof, according to the circumstances of the case, may, at the ti'ial or at aivy other stage of an action or other proceeding, pronounce such judgment, oi' make such ordei or decree as the e([uitil'lo rights of the parties respectivelj' re([uire, and may make such rule or order as to ad its turn is l)oun, mav be made defendants. And the defendants need not all be interested in all the rel ef claimed or all the causes of action. It is not necessary that either plaintiff or defendant should be concerned in all the nuitters in ((uestion in the saute capacity ; subject to a few tpi.alifications, either may be concerned partly in a representative cap.acity, partly personally. The defendant may aiso bring Itefore the Court persons not already parties against whom he seeks .any relief relating to or connected with the subject m.atter of the suit. In short, .all parties may be added that may be necessary to enable the Court effectually .and completely to adjudicate upon and settle all the questions involved in the action. The present Kule, it will be observed authorizes the joinder as plaintiffs, not only of perse ms claiming jointly or in the alternative, but of persons claiming severally. Accordingly, where eight per- sons brought an action of libel, it w.as held that they might rightly join, though no joint injury was shewn, .and though they would before the Act have had to bring eight actions (Booth v, BrUcoe, 2 Q. B. D , 496). In such case, of course there is no joint diimages. Each has a separate cause of action, and the assessment of damages or the award of any other I'elief should be separate. But in Booth V. Briscoe, the damages having been jointly assessed, it was held that the defendants could not complain . Appleton v. Chapel Town Paper Co. 45 L. J. Chy. 276 does not appear to be quite consistent with this. There the owners of two sep- arate bleach works joined as plaintiffs in a suit to restrain the pollution &^ ^'.v •! : ! ^mi "^^m 230 ONTARIO JUDICATURE ACT, 1881. Bales 89 80 '•^ '' stream used by both of their works, and the ease was tried by consent, as if two separate bills had been liled, but it seems to have been considered by the Judge that the ])laintitfs could not sue together in one action for distinct nuisances. One of several mortgagees may bring a foreclosure action, making his co-mortgagees defendants, if they will not join as plaintififs (Luke V. South Kemliigtoi} Hold Co., 11 Ch. 1). 121). Where two or more plaintiffs sue for a joint claim, the defendant may set up a separate counter-claim against each plaintiff {Manches' ter, ii-r Ihi. v. Bruokn, 2 Ex. D. 243). Where two plaintiffs join in an action and one is successful and the other unsuccessful, the successful plaintiff is chargeable with the costs of joining the unsuccessful plaintiff' (I)' HonnuKJee tSe Co. and haacn d; Co. v. Orey, 52 L. J. Q. B. 192). One of several joint own- ers of a patent may sue for a recovery of profits due for the use of the patent without joining the other owners (Sheehan v. G. E. Ry. Co., 10 Ch. D. 59). 00 Substitution 2. Where an action has been commenced in the and addition ^ , i • < • r/- i • ^ • of plaintiffs, name ot the wrong person as plaintin, or where it is doubtful whether it has been commenced in the name of the right plaintiff or plaintiffs, the Court or a Judge, if satisfied that it has been so commenced through a bona fide mistake, and that it is necessary for the determination of the real matter in dispute so to do, may order any other person or persons to be sub- stituted or added as plaintiff or plaintiffs, upon such terms as may seem just. (R. Sup. C, 1875, Order 16, R. 2 ; Comp. R. S. O. c. 49, s. 5.) 8ame as the English Rule. Actions have been inadvertently brought by the wrong person, as by cestui que trust, instead of trustee ; by mortgagor, instead of mortgagee. The same mistake has been made where it was matter of real difficulty to say which of the two persons ought to sue : as in the case of contracts made by agents, as to which it is sometimes a question of much nicety to determine who ought to sue. Previous to the Administration of Justice Act, 1873, in Ontario, and until the Judicature Acts in England, though the Common Law Courts had the largest powers of adding parties, or amending misdescriptions of parties, they had no power to substitute one plaintiff for another, such as chia rule confers (see De Geiidre v. Boffardm, L. R. 7 C. P. 4(»9). An application under this Rule can only be made by a plaintiff (Clowes V. HiUiard, 4 Ch. D. 413), and is restricted to cases where a bona fide mistake has occurred, which has been discovered after action brought : as where a new partner was brought into a firm before the dealing in question ; but it is not intended to confer upon the judge unlimited discretion to re-model the proceedings (per Mellor, J., in Turquand v. Fearon, 4 Q. B. I>. at p. 282). In Smith V. Haselthie, W. N. 1875, 250 ; 1 Charl. Oh. Ca. 56, Huddlestone, B. , said : " You have to satisfy me of two things : 1st, that there I'i I PARTIES. 231 "has been a bona fidt mistake in the issue of th; writ ; and 'ind, Rules 90 91 "that it is a necessary change" (see also Clowen v. HiUiard, 4(h. D 413). In an action by assignees of insolvents the judge at the trial held that the claim sued for did not pass under the circumstances to the assignees. The defendants having been given time during the sittings to ascertain whether they had any defence to a suit by the insolvents, the latter were added under this Rule ;,8 plaintiffs, and judgment was given in their favour, l)ut without costs ( Woodiuan/ v. Shhlds, 32 C. P. 282. See Emden v. Cart<', 17 Ch. D. W,)). For cases in which the Rule has been acted upon, see Vol d6 Trofffx Asphalte Pavim/ Co. (Limited) v. Londor Tramwuii Co- {LhriifMl), 48 L. J. C. P. 312 ; 40 L. T. 133 ; W. ':<. 1879, 40, and Mtrcantlle Riw Plate Co. v. Imiir., W. N. 187G, 104 ; 2 (,'harl. <,"h. Ca. 23 ; Blarklnmi Union v. R)-ooh% 26 W. \l. H). The hoiia fide mistake which must be shewn mty be one of law {Duckett V. Cover, (5 Ch. D. 82 ; ilfa-son v. Harris, 1 Ch. D. 97). A plaintiflf will not, in general, be added or substituted unless he consents ( Turqiiand v. Fearon, 4 Q. B. D. 280, and see Rule 103). Nor under this Rule unless the original plaintiff consents (Emcten v. Carte, 17 Ch. D. 109). An order will not be made on an e.c parte application (Tildenleii v. Harper, 3 Ch. D. 277). Where the present Rule is not applicable, plaintiff) may neverthe- less sometimes be added under Rules 103 and 104, infra (see notes under those Rules, and Emden v. Carte and Smith v. Haseltine, supra. 91 3. All person.s may be joined as defendants against Who may be whom the right to any relief is alleged to exist, (°ef"ndantR. whether jointly, severally, or in the alternative. And, without any amendment, judgment may be given against such one or more of the defendants as may be found to be liable, according to their respective liabilities (See R. Sup. C. 1875, Order 16, R. 3.) Same as the English Rule. This Rule whi^ih is the converse of Rule 103 must be read with the latter {Edmard./toH//.srii/, 23 Ch. 1). (50). See also il/«<^/(i(t.y v. FeWs, 46 L. T. , 497, Barnes v. Addij, L. H. 9 Chy. 244, 25"), 256 ; Barstall v. Beyfus, W. N., 1884, 49 ; 32 W. R. 418, for what was formerly known in Chy. as the Rule of the three A's, and for observations on the prac- tice of making solicitors, agents and arbitrato^rs parties ';o suits, alleging against the principal defendants' fraud in which the co- defendants are not implicated. In Head v. Bowman, 9 Pr. R. 12, the plaintiff sued in respect of the flooding of land by a milldani. The (j. W. Ry. had turned the waters of the stream into another channel, which was not deep enough to carry off all the water, even though the defendant's dam were removed, so that complete relief could not be given even though the plaintiff were successful against the defendant. The plaintiff was therefore allowed under this Rule, and Rule 10.3, to add the G. W. Ry. Co. as defendants. In Heatley v. Newton, 51 L. J. Chy. 225, an .action by purchaser for rescission of a contract of sale and costs, auctioneers were made co-defendants with the vendors, the plaintiff alleging that they and the vendors had joined in a fraud whereby the plaintiff was induced to pay too high a price. It was held that the auctioneers were rightly joined and could not claim to be dismissed merely on pay- ment of the deposit into Court and costs to the date of the order. If alternative cases are alleged the facts ought not to be mixed up but should be stated so as to shew on what facts each alternative of the relief sought is founded ( D'Mvy v. Garrett, 7 Ch. D. 489). 92 Where defendant not interest- any 4. It shall not be neces.sary that every defendant to action shall be interested as to all the relief relief prayed thereby prayed for, or as to every cause of action included therein ; but the Court or a Judge may make PART IKS. 233 such order as may appear just, to prevent any defend- Rules 92, 93 ant from being embarrassed or put to expense by beingrequired to attend any proceedings in such action in which he may have no interest. (R. Sup. C, 1H75, Order 16, R. 4.) Same as Knglish Rule. See Cox v. Barker, 3 Ch. D. 359, where this Rule was oonsidertMl ami given a liberal Cfnistruction. The judgmoit of V. < '. Bacon, which was artinned on appeal, contains the folio wnig passages ; — " 1 take it that it was the intention of the Legislature, when any question of anv'sort, or any set of f[uest'jns, arose, to endeavour by one hearing and one decree to dispose 'A all matters in litigation between all the parties who were interested in the subject, of the litigation. The Act of Parliament, at the same time tliat it has enabled any ]jerson stating a claim to bring before the Court all i)ersons interested in tliat claim, and to include in the claim every (piestion that can belong to it, or arise out of it, has, at the same time, carefully provided that no one shall be prejudiced l)y the fact of his being joined. The Rules are distinct on the subject." 93 5. The plaintifif may at his option, join as parties ah or any to the same action all or any of the persons severalh', lha,i"'toone or jointly and severally, liable on any one contract, |i',',ly','J,?* including parties to bills of exchange and promissory .i'jmed. notes. (R. Sup. C, 1875, Order 16, R. 5; l^ec G. 0. Chy., No. 62). Same as English Rule. By Rev. Stat. Ont., c. 50, s. 134, it is provided that all the parties to a bill or note maybe joined in one action ; but by sec. 135 the non-joinder of any joint drawer, maker, indorser, or acceptor might be pleaded in abatement. By the present Rule it is optional with the plaintiff in actions on bills and notes, as well as in actions on any other contract, to proceed against any one or more of the parties jointly or severally liable (see Re Arcedeckne, Atkin-i v. Arcedeckuc, 24 Ch. D. 709 ; Murray v. (Mett, 18 C. L. J. 78). Under Chy. (iren. Order 62, a plaintiff might select one or more of several persons liable. Under the corresponding English Con. Order (VII. R. 2), it was held in Smith v. Horsfall, 24 Beav. 331, that if the plaintiff chose to sue all or some of them, and the suit became defective or abated by reason of a transmission of the interest of one of them, he could not afterwards proceed against the other. This gloss on the Order was described as highly technical (Graij v. Lewis, L. R. 8 Chy. 1035, 1052), and will not be imported by analogy into tlae present Rule (Lloyd v. Dhmtiack, 7 Ch. D. .398). In the latter case two of five defendants became bankrupt, and it was held that the action might proceed against the other three \yithout bring- ing the trustees of the bankrupts before the Court. For other restric- tions upon the application of (t. O. 62, see Le.win, 6th ed. 807. See also Wilson v. Rhodes, 8 Ch. D. 777. 'Al-\ 234 ONTARIO JUDICATLRK ACT. 1881. EnleB94, 9) 6. Where in any action, whether founded upon 94 contract or otherwise, the plaintiff is in doubt as to defendlints ^^^^ pcrson from whom he is entitled to redress, he in cases 1)1 may, in such manner as hereinafter mentioned, or as may be prescribed by any special order, join two or more defendants, to the intent thpt in such action the question as to which, if any, of the defendants is liable, and to what extent, may be determined as between all parties to the action. (R. Sup. C, 1875, Order ;6, R. 6.) Identical with the English Rule. This Rule is applicable to actions which have been already com- menued, as well as to those in which the plaintiff is in doubt at the commencement of action ( /wr Cockburn, C. J., in ffonUurati, ibc. v. Tiu-hr, 2 Kx. D. .305). There the plaintiffs claimed against L. speciSc performance of a contract alleged to havt been made by T., the authorized agent of L., they afterwards alleged that L. denied that T. was his authorized agent, and were therefore in iloubt as to who was liable, and tliey ol)tained leave to add T. as defendant, claiming that if he was not the authorized agent of L. he was liable as principal. This Rule was applied in Harveif v. G. T. Rif. no., A G. W. Ri/.Co., 9 Pr. R. 80 (affirmed on appeal, 7 Ont. App. 715) where injury was rl/, 7 Pr. R. 446 ; but see now Martano v. Mmm, 14 Ch. 1). 4I1>, where it was helil that since the Judicature Acts the ( 'ourt hiis a judicial discretion to direct security for costs to be givtn at any time, and that the old rule as to waiver by step taken ig al)rogated (see also note to Rule 429). I If the next friend is not appointed in a reasonable time, a motion may be made to limit the time therefor, or, in default, that the action 1)6 dismissed (MrPhcrson v. McCuhc. supra). The time limited is the same as upon application to limit the time for furnishing security for costs, as to which see Grant v. Winchester, 6 Pr. Pi. ,%. A defendant cannot act as next friend of a married woman plaintiff (Paipie v. Little, 1.3 Beav. 114 ; Bennftt v. Sprague, 4 C. L, .1. N. S. 45 ; see Lvwi-'^ v. Nohhx, 8 Ch. D. 591); except perhaps a merely formal defendant (Taijlur v. Taylor, 16 L. J. N. C. 66). 'Die next friend must be a |)erson of substance, as he is liable for tlie the costs (Hind v. Whitmore, 2 K. & .J. 458 ; Rann v. Lawless, 1 Chy. Ch. .333; Van Winkle v. Chaplin, 2 Chy. Ch. 98). If not solvent, an order may V>e made on motion of defendants to stay proceedings till a new next friend be appointed or security for costs given (Storel v. Coles, 3 Chy. Cham. 421). Where such an order iiad been made and, not being complied with, the action was dismissed with costs, a second action by another next friend was stayed till the costs of the lirst were i)aicl (Be Pa>/ne, Handle v. Payne, 23 Ch. D. 288). A next friend of a married woman plaintiff must be authorized to act as such, otherwise the action may be dismissed on tlie application of the defendant. Where a next friend's authority was disputed by defendant, and not deposed to by the next friend, the action was dismissed with costs, payable by the next friend (SclijotI V. Srhjoft, 19 Ch. D. 94 ; see also Cook v. Fryer, 4 Beav. 16). A writ issued by a next friend without employing a solicitor was set aside with all the proceedings (Sioann v. Swann, 43 L. T. 530). The next friend may lie changed by the married woman on notice to the defendant (Eastman v. Eastman, 2 Chy. Ch. 183 ; Harvet/ v. Boomer, 3 Chy. (^i. 11). Effect of T'lifi present Paile folloAvs in a great measure, but is also an present Rule extension of the Act of 1872. In alimony suits the right to sue alone as formerly, is clear (see Vardon v. Vardon, 19 C. L. J. 229). The Act of 1872 rendered a M^fe capable of being sued at law, as before the Act she could l)e in equity, separately from her husband in respect of her separate engagements, contracts or torts ; but it was only in respect of her separate propertj' that she could sue alone. The present Rule enables her to sue alone, not only in respect of her separate estate, but also in cases relating to her separate engage- ments, contracts or torts, or for alimony; and by leave in all other cases in Avhich heretofore a next friend was necessary, upon giving security for costs, if the Court thinks tit. Under the corresponding English Rule a married woman in receipt of a separate income of £1,150 was not required to give security for costs on obtaining leave to defend separately (Noely. Noel, 13 Ch. I). 510). So a mai'ried woman suing alone without a next friend, and having sufficient separate property to pay costs of the action, was not required to give security (Broivn v. North, 9 Q. B. D. M). There is nothing in this Rule to preclude the Court from exercising the power to give leave after action brought [Kimjsman v. Kinysinan, m MARRIED WOMEN. 241 C} Q. B. D. 122, where refusal to stay an action was considered j^ie 97. ei|uivalent to leave to sue without next friend). After 1st July, 1884, "The Married Women's Property Act, 1884," M. W. Actof (47 V. c. 19) comes into operation, and the capacity of a married 1®***- woman to sue and he sued will be governed by sec. 2 of that Act, and thenceforwartl a married woman plaintifl' will stand in tlie same jiosition so far as security for costs is concerned as any other ]>lain- titf (Thrcl/oV V. Wilsmi, 8 P. T). 18), even though the cause of action may have arisen prior to 1st July. 1884 (-SV(Y'?Yf?(rc v. C'nnl SiTvlcp Svpplii, 48 L. T. 485 ; James v. Barraiid, 31 W. U. 786 ; 49 L. T. 300)." Section 2 of the Act of 1884 is as follows : — "2. (1) A married woman shall, in accordance with the pro- Married visions of this Act, be capable of acquiring, holding, and 'disposing ^)J"J""^j'*°j.^'*' by will or otherwise, of any real or ])ersonal property as her separate iiuiding jn-o- property. in the same manner as if she were a/fw .sol'', without the peity us a intervention of any trustee. /«""' '"''^* (2) A married woman shall be capable of entering into and render- ing herself liable in respect of .and to the extent of her separate pro- perty on any contract, and of suing .and being sued, either in contract or in tort, or otherwise, in all respects as if she was a, feme sole, and her husband need not be joined with her as plaintiff or defemiant, or be made a party to any acticm or other legal proceeding brought by or taken against her ; and any damages or costs recovered by her in any such action or proceeding shall be her sepaiate property ; and jiny damages or costs recovered against her in any such action or proceeding shall be payable out of her separate property, and not otherwise. (3) Kvery contract entered into by a married woman shall be deemed to be a contract entered into by her with respect to and to bind her separate projjerty, unless the contrary be shewn. (4) Every contract entered into by a married woman with respect to and to bind her separate property, shall bind not only the separate property which she is possessed of or entitled to at the date of the contract, but also all separate property which she may there- after acquire." This section, which is in the terms of the English Act of 1882 (45 & 40 V. c. 75), seems to apply in the case of all married women, whether married before or after 1st July, 1884, in all actions instituted after that date, whether in respect of a cause cf action arising before or after that date (James v. Barraud, 31 W. R. 786); though under Set;. 22 of the Ont. Act the right to sue and liability to be sued under the Act of 1872 is preserved. Sec. 11 of the Act is as follows : — "11. Every woman, whether married before or after this Act, shall Remedies of have in her own name against all persons whomsoever, including married her husband, the same remedies for the protection and security of ^'"I'"" '"'' her own separate property, as if such property belonged to her as a and security feme sole, but, except as aforesaid, no husband or wife shall be of sej)arate entitled to sue the other for a tort. In any proceeding under this Property, section it shall be sufRcient to allege such property to be her pro- perty ; and in any proceeding under this section a husband or wife shall be competent to give evidence against each other." 16 'II e:H| ' '1 il I ' ¥. 242 Btde 97- ONTARIO JUDICATURE ACT, 1881. Rev. Stat c. 125, sec. 20, has been held to affect proceiluie only, and not to render a married woman liable in respect of her the Act of 1884. II! < it] Liability de pendent on coiuracis excepc in me same way as sne was lormeriy iiauie m possession equity, that is to say, her liability d^ijends uj^on the possession of of separate separate estate ; and that fact must therefore be alleged (Darlim/ v. f *f '^ ""4«'' /e*cS8) ; but in the case of a contract entered into after Ist July, Ibdt, ijoch separate property at the date of the contract and all separate pro- perty thereafter acquired will be bound (47 Vict. c. 19, s. 2 supra). Probably separate estate subject to a restraint on anticpation will not be bound any more than it was formerlj'. (See Pike, v. Fitzgibhhon, 17 Ch. D. 454 ; Smith v. Lucas, 18 Oh. D. 531 ; Gloucestershire Banking Co. v, PhiUippa, sup. , Gunston v. Maynard, sup. ) Form of judgment PARTIES. 243 ^ } ■, ;, m ' 1 m' The property liable may be reached in execution in the usual s,ale8 97, 98 way (Barker v. IVe-^tover, 3 C. L. T. 35 ; Lawnon v. La'ullaw, sup.; Kxecution and see Perks v. Afylrea, W. N. 1884, 64). In actions in this Province against a married woman for a tort com- Actions of mitted by her, it has been held that since the Act of 1872 the bus- tort, band is not a proper party, but the wife must l)e sued alone, and that her liability is not dependent upon her possession of separate estate (Amer v. Rogers, 31 C.P. 195 ; and Barker v. Wesiover, sup. This seems to be in accordance with the opinions expressed by Hagarty, C.J. in Stone v. Knapp, 29 C. P. (509, Spragge, C, in McFarlane v. Murphy, and Wilson, J. in Wagner v. Jefferson, 37 Q. B. 577, 578 ; and seems also to be the effect of the Act of 1884 (see Perks v. Mylrea, supra). In actions by a married woman for a tort suffered by her uncon- nected with her separate estate, her husband was even after the Act of 1872 required to be a party plaintiff (see Amer v. Rogers, 31 C. P. 199), but under the present Rule and the Act of 1884 it would seem that the wife may sue alone. See generally on the present law in Ontario, 3 C. L, T. 63. 08 10. Where there are numerous partie.s havine the where .... .. _ r L parties are same mterest m one action, one or more of such numerous. parties may sue or be sued, or may be authorized by the Court to defend, in such action, on behalf of, or for the benefit of all parties so interested. (R. Sup. C. 1875, Order 16, R 9 ; G. 0. Chy., Nos. 58-61.) This is the same as the English Rule referred to, and corresponds with what had long been the practice of the Court of Chancery (see Dan. Ch. Pr. pp. 207, et seq., 1088, ed. 5 ; Thomson v. Victoria Mutual Co., 29 Gir. 50). A plaintiff suing under this Rule must indorse his writ accord- ingly (see Rule 13, and Hynes v. Fisher, 4 Ont. 78). In De Hart v. Stevenson, 1 Q. B. D. 313, it was held that one part- owner of a ship might sue under this Rule on behalf of himself and his co-owners for freight. So also one underwriter on behalf of all (Leathley v. Mc Andrew, W. N. 1875, 259; 1 Charl. Ch. Ca. 58) ; one of a number of co-owners of a patent (Shcehan v. G. E. Ry., 16 Oh. D. 59) ; or bondholders {Eraser v. Cooper, Ball .fc Co., 21 Ch. D. 718) ; or policy holders in an Ins. Co. (Thomson v. Victoria Mutual Co., 29 Gr. 56). See also Bergman v. McMillan, W. N., 1881, 39. The Rule was acted on in a case where certain charitable be- quests in a will, if held invalid would go the next of kin, and four of the next of kin besides the widow of the testator and the Atty. Uen. as representing the charities had been served, and it appeared that there were a large number of next of kin, many of whom were unknown, and service upon others would be difficult and expensive. An order was made declaring that the next of kin were sufficiently represented by those before the Court (Gillies v. McCmochie, 18 C. L. J. 179). In suits by one on behalf of all others of a particular class the other members of the class, if fairly represented, are bound by the judgment (CQinmissioners of Sewers v. Gellatly, 3 Ch. D. 610 ; Leath- ley V. Mc Andrew, W. N. 1876, 38; 2 Charl. Ch. Ca. 24; Burt '"I ; I I y& t ?f \ L' ' H %\ !' •{ 244 ONTARIO JUDICATURE ACT, 1881, Rules 98, 99 V. British Nation Life Asm. Assoc, 4 De(x. & J. 158, 174; Barker V. Walters, 8 Beav. 97). Where one of the ckaa objects to the proceedings, he may. on applying, be made a party defendant (Wilson V. Church, 9 Ch. D. 502 ; Fraser v. Cooper, 21 Oh. D. 718). That is the proper course if he is really not represented l)y the plaintiff. He cannot otherwise ap^ioal from an order obtained by the plaintiff ( Watson V. Care, 17 Ch. D. 19), unless perhaps in a case where a person has already been made a defendant in tlie same interest as the applicant, and appointed untler this liule to represent that interest (see Fraser v. Cooper, een originally made a party to the suit : ami tiiat you {or, tfn' soid iiit'diit, or /ifr- Hon of UHsoiuid mind) may, upon service of notice upon the plaintill'. attend the proceedings under the within decree ; antl that you {or, llie .lald iiiftint, or person of unsound, mind) may, within fourteen (lays after the service hereof, apply to the (Jourt to add to, vary, oi- set aside the said decree. A. B., of the Oil)! of Toronto, in tht County of Yorky PlaintifTs Solicitor. " (51. In all suits concerning real or ])ersonal estate which is vested in trustees under a will, settlement, or otherwise, the trustees shall represent the persons l)enelicially interested un. 65, exercised a similar power of dealing with the questions raised in a suit wherever justice could be done to all parties notwithstanding misjoinder or nonjoinder (see Lambert v. Hutchinson, 1 Beav. 277, '2S6). Where necessarj'^ the decree expressly saved the rights of absent parties. From the provisions for adding parties contained in. the sub-clause of this Rule, it would appear that "misjoinder" includes "non- joinder. " Misjoinder, though it camiot defeat an action, may affect the costs (Roberts v. Evans, 7 Ch. D. 830). . Misjoinder and non-joinder of parties are not since the .lud. Act grounds of demurrer. (See Blake <{r Co. v. Moore, 8 L. R. Ir. 95 ; nerderninn v. Socidte Oenerale, kc, 19 Ch. D. 246 ; Hunter v Young, 4 Ex. D. 256 in notes to Rule 189 ; Yount/ v. Rohertson, 2 Ont. 434 ; Scane v. Duckett, 3 Ont. 370). Striking out The defendant's course is to apply under the present Rule to add aad adding or strike out parties or require the plaintiff to do so ; and the defend- parties. g^^^ should raise any objection of this kind that he may have, at the earliest possible moment, (Sheehan v. Oreat Eastern Ry. Co., 16 Ch. D. 59, where the objection was not allowed tlwugh taken Ijy the de- PART IKS. 249 fciico ; see also Ifustunv. Tolnii, \V. N. 1880, 11); liuficrlx v. Ermm, Eule 103t 7 (Ml. I). HSO ; Sc'tnr v. Diirkftt, '^ Out. 'MO). Wliuro thudefomlant's c iiitiJiitioii is that additional partiuH are nocc^sary to enable the action to proijeeil at all, it would wjeni however that it is sufticient for iiini to take the ohjeetion hy hia defence, leaving tlie plaintiti' to aiiulv to add parties if 8(» ailviseil (see NohcVs Knploiii'r.s C'n. v. JoiH's, 'J8 \V. I{. «.-)H; -42 L. T. 754; 4•<'!/, 4()nt. :«y). 103 a fn) The Court or Judge may, at any staoe of the stiikin« out 1- VI J ^ vi .- 4.1 r ^- , ami adding procceuings, either upon or without the application ol parties, cither party, and on such terins as may appear to the Court or a Judge to be just, order that the name of any party, whether as plaintiff or as defendant, improperly joined, be struck out, and that the name of any party, (x) whether plaintiff or defendant, who ought to have been joined, or whose presence before the Court may be neccssar>- in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the action, be added. Same as the P]uglish Rule. (x) i.e. person {Lonn v. CriMtlci/, 13 Ch. D. 391.) This clause provides a cure for misjoinder and nonjoinder, by striking out or adding parties. Applications under it may be made by either party, or the Court may act iiiero motii. The power given is very extensive, and may be exercised at any stage of the procee .. I 'i'fti i! I 1 250 ONTARIO JUDICATITRE ACT, 1881. Sale 103 Strikituj out parties. — Under the former practice, if a party was Striking out improperly joined, the defendant might demur if the impropriety parties. appeared on the face of the proceedings ; otherwise it was necessary to defend and proceed to a hearing of the cause. The present Rule enables the Court to strike out a party improperly joined, before expense is incurred. If a derendant is improperly joined, he should apply to have his name struck out, at the earliest possible moment ; but a defendant was struck out on his own application, though he had delivered a statement of defence upon which issue had been joined, and delay only iniluenced the decision as to the costs ( Vallancc v. Birmimjhnm and Midland Land, ttr.. Corporation, 2 Ch. D. 369). Where defendants did not move under this Rule to be struck out, but took part in the defence, they were held jointly liable with other defendants to the costs of the action (Twinharrow v. Braid, W. N., 1878, 1(39). The Court will not virtually try the cause, however, on such an application. Where, therefore, a plaintiff, a builder, sued for work and labor done, and made two persons defendants who occupied the position of lessee and lessor, alleging that there was a doubt which w^as liable to him. Lush, J., on the application of the lessor, refused to strike him out on his statement that the lessee was liable to do all repairs {Anon. W. N'., 1875, iOS; 1 Charl. Ch. Ca. 59). Under an order striking out a defendant and giving the plaintiff leave to amend, he may not ameml by striking out anoth*er defendant, even though that defendant's interest was determined ( Wymer v. Dodils, llCh. U. 4.^6; Mlwonv. Vawjhan, W. N., 1879, G9). A defendant sought to be struck out is entitled to notice, that he may be heard as to the question of his costs ( Wi/nicr v. Dodd.-i, sup.). A defendant in ejectment, a tenant, whose landlord had obtained leave to defend, and whose lease had expired pending the «Tit, v/as not allowed to have his name struck out, as the plaintiff's security would thus be diminished {Jofumton v Oliver, 9 Pr. R. 353) On grounds apart from any question of personal responsibility de- fendants on their own application may not be allowed to be struck out (see Hmtleji v. Netvton, 19 Ch. D. 33<)). Adding Adding Partifs. — This Rule is to be read with the preceding Rules parties. 89, 91, &c., (Edward.'i v. Lowthn; 24 W. R. 434} ; ami any person who might have been joined originally under the preceiling Rules may be added under this Rule (see Smith v. Hnseltine, W. N., 1875, 250, 1 Chail. Ch. C:i. 56 ; fjomj v, Cros.ileij, 13 Ch. D. 388), subject to the restrictions hereafter referred to, and to the power of the Judge in his discretion to refuse to interfere if injustice is likely to ' e done in any way bv the addition (see Edwards v. Lowthe.r, 34 L. T. 255). The words "who ought to have been joined," in this Ride mean "ought, in order to do complete justice, to have been joined ;" and, as a general rule, "all parties against whom remedy or relief is sought should, if possilile, be joined in the same action" (per Archi- bald, J., m Edwards v. Lowther, 45 L. J., C. P. 419). There an action was brought againsu a publisher of a newspaper for libel, and after issue joined the proprietor of the newspaper was added as j' defendant on the plaintiff's application. A plaintiff assigned his interest to a third person, who obtained an order giving him liberty to prosecute the suit in the name of the original plaintiff. Held, on the applit-ation of the defendant, that ADDING PARTIES. 261 the assignee was bound to set forth the assignment, by amendment j^je io3. or otherwise, in the statement of claim, and that all proceedings Adding after the order should be entitled in both causes (Seear v. Lawson, parties. 16 Ch. D. 121). But the Courts do not interpret the Rules as empowering them to acUl parties at the instance of a defendant to the same extent as upon the plaintiff's application. [n an action to restrain defendants from using certain premises a« a small pox hospital, application was made under this Rule by the plaintiff '- join another person wibh his consent who was an inhabi- tant of the same neighbourhood on the ground that since the action was commenced the plaintiff had given up his business and was going abroad. An order was refuse i 252 ONTARIO JUDICATURE ACT, 18S1. Bnle 103. Adding parties. Adding defendants. Tn Beck v. Dmr, W. N. 1876, 40, 2 Charl. Ch. Ca. 25, the addition of a plaintiff was refused where the object was to bring a counter-claim against him. (See also Bank of Commfree v. Bank of B. y. America, 20 C. L. J, 130 ; ^^orr;s v. Beazley, 2 C. P. D. 80.) See also Seear v. Lawson, 16 Ch. D. 121, {supra) where a plaintiff was in effect added on a defendant's application. In Emilen v. Carte, 17 Ch. D. 169, a trustee of a bankru])t plaintiff was added as a plaintiff, and the conduct of the action given to liim on his own application, he alleging that the interest in the action passed from the plaintiff to him. A similar order was made in Bird v. Matt/nivs, 46 L. T. 512 ; see also Woodward v. Shields, 32 C. P. 282, and notes to Rule 385. In Staylor v. Cooper, 2 Ont. 398, where the equitable owner of land sued in respect of a right of way of necessity implied by a grant of land, he was jierinitted to make the owner of the legal estate a co-plaintiff by amendment at the hearing. Addinij Difendnnt'^: — Whether a defendant wiU be added or not upon a defendant's ai^plication. depends upon whether the adjudica- tion upon and settling of the questions arising in the action requires the presence of the person proposed to be added (Harry v. Darey, 2 Ch. D. 721). In general a defendant will not be added against the plaintiff's will, unless justice requires, it. In N'orris v. Beazley. 2 (J. P. D. SO, a defenl(mves Co. v. Jones, 28 W. R. 653) ; or in some cases after judg- ment if the party to be added dees not object (see i?e Mason, Turner V. Mason, \V. N. 1883, 134, 147 ; sed iiuiere, see Heard v. Borgwardt, W.N. 1883, 173 and 194). Where it becomes necessary to enforce a judgment against persons who acquired title after it was made, an action must be brought {Attowey-Oeneral v. Council of Birmingham, 15 Ch. D. 423). But see cases under Rule 178 and Morgan v. Day, Uan. Pr. 463 note (o), and Campbell v. Hobjland, 7 Ch. 1). 166. The application is made in Chambers (see Wilson v. Church, 9 Ch. D. 552) ; and on notice ( Tildeslei/ v. Harper, 3 Ch. D. 277) ; but an order nisi has under peculiar circumstances been made e.v parte, to hecome absolute unless moved against within a time named in the order (i?e Wortlet/, 4 Ch. D. 180 ; Wilson v. Church, supra). The order, whether for adding, striking out, or substituting parties, is in the discretion of the Judge ; and after trial it was held too late to add new plaintiffs and make a new case (Xeiu Westminster Breioing Co. v. Hannah, 24 W. R. 899). 255 Sales 104-106- 105 17. Where a defendant is added, unless otherwise Amended ordered by the Court or l^i'.dge, the plaintiff shall sue ^^'"^ J'^f^^^. out an amended writ of summons, and serve the new ant added, defendant with such writ, or notice in lieu of service thereof, in the same manner as oris^nnal defendants are served. (R. Sup. C, 1875, Order 16, R. 15.) This Rule is identical with the English Rule, and applies (it is presumed) where a ilefendant is substituted, as well as added, though the language used is slightly different from that of the preceiling Rule. Where the person added is out of the jurisdiction, the writ if originally issued for service within the jurisdiction, should before service be amended according to the form for service out of the jurisdiction {Keate v. Phillips, W. N. 1878, 186). The directions for service of the writ on new defendants do not meet the case of consolidated actions ( Re Wort lei/, Culleij v. Wortlei/, 4 Ch. D. ISO, where the defendants were added to the consolidated action without service of any writ being required). Where a sole plaintiff died after delivery of statement of claim and his executors took out common order to revive, copies of the writ order to revive and order adding a defendant were directed to be served on the added defendant (Atisten v. Bird, W. X. 1881, 129 ; 17 C. L. J. 365). 18. If a statement of claim has been delivered pre- Amended viously to such defendant being added, the same shall, gj^j^'"®''* °' unless otherwise ordered by the Court or Judge, be amended in such a manner as the making such new defendant a party shall render desirable ; and a copy of such amended statement of claim shall be delivered r-!' » '!! 256 ONTARIO JUDICATUKE ACT, 1881. Rules 108, 107. 107 Co..;.' I tion ni- 11- demnity between ile- fer.dants and other persons. Third parties. :8cope of the Ruleei. to such new defendant at the time when he is served with the writ of summons or notice, or afterwards within four days after his appearance. (R. Sup. C, 1875, Order i6, R. i6.) Same as the English Rule. 19. Where a defendant is, or claims to be, entitled to contribution or indemnity, or any other remedy or relief, over against any other person, or where from any other cause it appears to the Court or a Jude v. Teitnant, 20 C. L. .1. 122 ; 4 C. L. T. 183. In H„rnl>!i v. Cardwe/I, 8 Q. B. I). 329, more fully reitorted 4") L. T. 781, after the ipiestious between plaintiff and defendant had been tried pleadings were in the same action delivered between the defendant and third party, and the liability of the latter to indemnify the defendant was determined. There are also expressions of opinion in several other cases that the Kules have a widersco])e (see llorwell v. The London Hen. (hnnihim Co., 2 Ex. 1). 374 ; Tlie. Cart.^lmrn, 5 P. I). 35, 5!) and 02. See also Butler v. Butter, 14 Ch. D. 329; Sawijer v. Saivi/er, W. N., 1883, 181 and 212; the issue directed to be tried in Biu/ot v. Ettston, 11 <'h. D. 392; Plller V. Bobert.% 21 Ch. D. 198 ; and Sr/tneider v. Batt, 8 Q. B. D. 705 ; Steel v. Dixun, 28 W. R. 790). In NeahU v. Corktndale, 4 Ont. 317, it was laid down, these later cases shew the practice to be, to settle the rights between the defendants and third party in the same action in which the third party has been notifietl; and relief was accordingly given to the defendant to the extent of protecting him against the plaintiff's demand. The English new Rules of 1883 expressly enable judgment to be given against the third party (see Rule 174), but the scope of the third party procedure is confined to cases of contribution or indemnity (see Ponlifex v. Foord, 12 Q. B. D. 152 ; Sanders v. Peck, 32 W. R. 4t)2 ; Cattoii v. Bennett, W. N. 1884, 74 ; 28 Sol. Jour. 357). Two classes of eases in which a third party may be brought in, are provided for by the Rules. 17 1 ■ ^ i , 258 ONTARIO JUDICATURE ACT, 1881. Eule 107- (I) Where a defendant is, or claims to be, entitled to contribution Cases of con and indemnity, or any other relief, over against any other person tributioii or (Rule 107, first part). These are the cases of the most frequent occurrence, and examples of them will be found in the forms of the notice required to be given to the third party (see Appendix Form No. 18). The mode of procedure is provided by Rules 108, 110 and 111, taken together. Defendant serves a notice on the thirclparty (Rule 108), the latter may appear, if he resists the plaintiflT s claim as against the defendant who servf d the notice. If he does not appear he is bound by the decision (Rule 110). If he ajjpears, before any- thing further can be done in respect of the claim to contribution, &c., directions must be obtained as to the extent to which, and the mode in which, the claim is to be determined. The claim which the defendant has against the third party, need not be identical or co extensive with the plaintiff's claim against the defendant himself. The object of the Rules is that "if there is a substantial question which may be determined in the action, not only between the plaintiff and the defendant, l)ut also between tlie defendant and a tliird l)arty, then that cpiestion is not to be tried twice ovar," pi: r Jessel, M. R., in Swansea Shippiuij Co. v. Duncan, 45 L. J., Q. B. (540 ; in such a case the third pers(m " is to be cited to take part in the original litigation, and so to be bound by the de- cision on that question once for all " (S. C. 1 Q. B. D. 649). " The object of the Act was not only to prevent the same question "being litigated twice, but to obviate the scandal which sometimes arose by the same qiiestion being differently decided by different juries" (Beneckc v. Front, 1 Q. B D. 422, per Blackburn, L. J. ; see also 7^' Co/Z/c, 2 (h. D. 51.) The third parties can only be joined before trial {Lockie v. Teiuiant, 20 C. L. J. 122), antl will not be allowed to be brought in, if the plaintiff will be prejudicetl (Bower v. Hartley, 1 Q. B. U. 652 ; Wye Valley Jt'i/. Co. v. Hawes, 16 Ch. D. 489 ; see also Sivansea, tfcc, V. Duncan, 1 Q. B. D. 648-9 and Rule 112 ; Hutchimn v. Colorado United Mining Co. W. N., 1884, 40). See notes to Rules 108, 110 and 111. (2) Where from any other cause, it is made to appear that a qitea- "quMti^nln tion in the action should be determined between the plaintiff", defend- the action." ant, and any other per.son, or between any or either of them (Rule 107, last part). The mode of procedure in these cases is provided by Rules 107, 109 and 111 taken together. The -defendant n^ust obtain leave to bring in the third party by motion under Rule 100 ;, when an order will oe made for the service of the "notice " mentioned in Rule 107 last part. That order will contain all necessary directiona as to appearance and the effect of non-appearance. If the third party appears further directions must be then obtained under Rule III. This class will comprehend a great variety of cases in which the plaintiff may or may not be interested, and it is therefore left entirely to the Court or a Judge to direct what persons shall be allowed to be notified, what questions may be raised, and what pro- ceedings shall be taken (Rule 109), and to what extent the person brought in shall be bound or made liable (Rule HI); and in consider- ing how far the questions allowed to be raised should be determined in the action, the plaintiff 's convenience, as in the former class of cases, is to be consulted (Rule 112 and Swansea, Jkc., v. Duncan, 1 Q B. D. v. Wh Oh. D A alleget equitii of Coi t. 20(; See In party any o( v. A''' whom won whom claiuit settle- 208 li! THIRD PARTIES. 259 B. D. 644 ; Bower v. Hnrth'ij, 1 Q. B. D. 652 ; AsHOciated Home Co. n^ieg V. Whkhcord, 8 Oh. I). 457 ; and Wi/n Vnllei/ Jf'i/. Co. v. Ha wen, 16 107 lOB (Jh. D. 48!>). A person cannot be brought in as a third party because lie is alleged to be the beneticial plaintiff, and for the purpose of raising equities against him M'hich do not attach against the plaintiff (Bam of Commerce v. Bank of B. N. Ameriea, 20 C. L. J. 136 ; 4 C. L. t. 200). See notes to Rules 109 and 111. In Walker v. Balfour, 25 W. II. 511, it was held that a third Fourth, Ac, party brought in Rule 107, waa not entitled uiuler tliat Rule to have pa't'ea- any other person against whom he has a claim added ; but in Fowler V. Knoop, 36 L. T. 219, W. N. 1877, 68, the third party against whom indemnity was claimed, was allowed under the concluding words of sec. 16, sub-s. 4, of the Act to bring in a fourth party, f r im whom he claime ■, t: 260 ONTARIO Jl'DFCATURE ACT, 1881. pi Delivery of plt'iKliU),' to I'li-di'f't. it) lieu of notii'i'. Rule 108. or if there be no statement of claim, then a copy of tiiilapaity *'^^ ^^''^ of summons in the action. (Comj). R. Sup. C. 1875, Order i6, R. i8.) This in the Hiiine as the Eiiglisli l{ule, except that the latter requiros tlio notice to he stainpeil with tlie seal with which writs of Bunimons are sealed, anil inserts at (a) the words " hy the leave of the ('(lint <»r Juilge. " The notice referred to is ^ivcn wit)»out ajiy leave being first obtained, and is confined to the first class of cases mentioned in liule i(>7 (see notes to that Rule); namely, where the defendant claims a rcm»'. 3t)'J, but even in Kngland was held unnecessary in /y*///*'/- v. Butler, 14('li. I). .'V2!>, and Ton'xe v. Lareridur, LT) Ch. I). 7t> Since the notice provided by this Itule may under the Ontario Hides l)e given, with- out order, to a person not already a party, so where contribution or other relief over is claimed from a party to the cause, the delivery to him of a pleading claiming sucii relief should be sufiicient notice of the claim witiiout an order. (See Kule 104 in the case of a counter-claim). It will then \n' o|ien to the jiarty served to move to discliarge tiie service if the cise is not one of contriluition or indemnity within tlie Hides (see 'J'mrsp v. Lori'rhhji', HU]>r. H. D. 705; Wije Vdllii/ L"i/ Cu. V. //((»r.s, IG Ch. 1). 489). The procuring by a defendant of the ]ileadings of a co-defendant who claims contriliution, &c., from him does not operate as a notice to the former {Stcd v. JJixo)), -'8 W. R. 796 ; 4'2 L. T. 7()5). Service uf 'li^ notice to the third party is to be served according to the notice (Jilt of liules relating to service of writs of summons. Such notice may juiiadiotiori. therefore be serveil out of the jurisdiction under Rule 45 (see notes to that Itule, and SuHDi.sra S/iip}>hi(i Co. v. Dniicmi, 1 Q.B.D G44). In such case the time for appearance (eight days) mentioned in Rule 110, will not be sufficient, and in Swansea, tir., v. Dnucan {su])ra) this was used as an argument that the enactments as to notice to third persons were not intended to apply to pei-s(ms out of the jurisdiction. The answer given Ijy the Master of the Rolls to this objection was, that the order giving leave to serve the notice out of the jurisdiction is to name such a time for appearance as the necessity of the case as to time and place requires (see English Order 11, Kule 4), and the Rule allowing eight days only must be taken to be modified accordingly. That Order has not been adopted in the Ontario Act, but probably Rules 4G and 47 would be held in like manner to modify Rule 110. It would be prudent to obtain leave to serve the person out of the jurisdiction, instead of merely applying under Rule 48 to have the service, when effected, allowed. to a or a dctt dcfcl ant the ma sha sue may I! '. THIRD PARTIES. 261 21. Where, under Rule 19 of this Order, it is made ^^^^' to appear to the Court or a Jud^e, at any time before ' or at the trial, that a question in the action should bec,,ii,t may determined, not only as between the plaintiff and ^''•'•'•''j''^t'f'o defendant, but as between the plaintiff and the defend- ant and any other person, or between any or either of them, the Court or Jud^e, before or at the time of making the order for having such question determined, shall direct such notice to be t^iven by the plaintiff at such time, and to such person, and in such manner as may be thouq^ht proper ; and if made at the trial, the Judge may i)ostpone such trial as he m.iy think fit. [R. Sup. C, 1875, Order 16, R. 19.) This Rule is identical with the Fuiglish l{ule, ami prescribes tl»e Nutiie in procedure for thj second of tiie two clas-ses nieiitioncd in \i\\\v 107 ; ('ii^ies of uaraelv, wliere a third party i« sought to be bronyht in for tlie deter- '"'".'i'"" * . (Ill I '.s I ion miiiation of a i/iosfioii in f/if (trfiuu, not only as between tiie plaintiff and defendant, l)ut as i)utween tiie plaintiff and defendant and such third person, or i>etwe(!n any or either of them. In that case, Rule 108 does not apply, and therefore it is necessary under Rule 107, last part, ti) apply for leave to serve notice on tlie tliird party. This motion for leave will be made in Chambers oa notice not necessarily to the third party (see Peamou v. Lniu', W. N. 1875, 248 ; Carrie v. Allen, 48 L. T. 464 ; VV. N. 1883, .15) ; but notice to the plaintiff will be proper ( Wiie Valli'i/ lii/. Co. v. Ilawes, 16 Oh. 1). 489 ; Finlay v. Srott, W. X. i8S4, 8, though see Carrie v. Allen, 48 L. T. 46t). If notice is not given to the plaintiff he may if he considers himself prejudiced apply to discharge the order (see Carrie v. Allen, 48 L. T. 467-8), but lie could as conveniently take any objection he may have, on any motion for directions under liule 1 11. On the motion for such leave, the propriety of having the question go tried must be "made to appear," but probably it will be enough as (in England) on an application for leave to serve a notice claiming contribution or indemnity, if a " plausible" case is made out for serving the third party (see Bei/non v. Godtlen, 4 Ex. D. "247) leaving him to move to discharge the service ; and, if leave is granted, the order will ordinarily direct the plaintiff' (Rule 109 ; Harwell v. Lon- don General Omnihun Co., 46 L. J. Ex. 700 ; 2 Ex. D. lHht) to serve notice on the third party, and will provide for the form of notice, the mode of service, and the time for appearance, or pleading by the third party, and any other directions that may be necessary (Steel V. Dixon, 42 L. T. 765 ; 28 W. R. 796). Where defendants wished to raise and to have decided a question in the action, as between them and a co-defendant, they, instead of the plaintiff, were allowed to serve a pleading on their co-defendant raising the question {Steel v. Dixon, 42 L. T. 765 ; 28 W. R 796). 110 22. If a person, not a party to the action, who is Ai-pearanoe served as mentioned in Rule 20, desires to dispute thcpLty.' plain tiff's claim in the action as against the defendant on whose behalf the notice has been given, he must " ?! ' 'I, ih 'i ; I' ! H i I'^r. It to , la ■ i\'i I 262 ONTARIO JUDICATURE ACT, 1881. 108. Role 110. enter an appearance in the action within eight clays from the service of the notice ; in default of his so doing, he shall be deemed to admit the validity of the judgment obtained against such defendant, whether obtained by consent or otherwise ; provided always, that a person so served and failing to appear within the said period of eight days, may apply to the Court or a Judge for leave to appear, and such leave may be given upon such terms, if any, as the Court or Judge shall think fit. (R. Sup. C, 1875, Order 16, R. 20.) This Rule is identical with the English Rule. It applies only to the cases of contribution, &o., in which a notice under liule 108 has been served. Appearance As to the time for entering appearance in the case of a third party by third out of the juriadiction, see note to Rul 108. party served •" ' under Hule Appearance indicates a desire ' ' to dispute the plaintiffs claim in the .action, n.H (ujainnf the defendant, on whose behalf the notice has been given" (Rule 110). By non-appearance the third party is taken to admit the validity of a judgment obtained against the defendant who brought him in, but it seems that no actual relief can be obtained against him (see the form of notice in Ap})endix ; Treleven v. Bray, 45 L. J. Ch. 113; 1 Ch. D. 170, and The Carttihurn, 5 P. D. 59). The third party may move to set aside the notice «erved upon him. He should not in such cases, properly speaking, enter an appearance (see fforwell v. London (Jenernl Omnihtus Co., 2 Ex. D. at p. 300 ; and Corrle v. Allen, 48 L. T. 400), but it would seem that the party would not be prejudiced by appearing [Benecke v. Frost, 1 Q. B. D. 421). Tn England a conditional appearance maybe entered (see Dan. Pr. 5th ed. 45<» ; Pleamnts v. E. Dereham, 47 L. T. 439 ; Nelson v. Pastoruio, 49 L. T. 504) for which, however, there is no provision in Ontario. Notice of an application to set aside the notice must of course be given to the defendant who served the notice, and may also properly be given to the plaintiff, who is interested in seeing that no cpiestion is introduced into the litigation which may prejudice him (see Bower V. Hartleii, I Q. B. D. 052 ; Wy Valley Ji'i/. Co. v. Haives, 10 Ch. D. 489; Rule 112). If the defendant who gave the notice cannot, from the nature of the case, become entitled to retv. dy or relief over against tne third party, the service will be set abide (Horivell v. London General OmnihuH Co., 2 Ex. D. 305). See also Harry v. Davey, 2 Ch. D. 721 ; Rice v. Alliance, ,ea v. Duncan, Benecke v. Frost, supra. Where assist in and the from hii Bradley 201 ; Hi. lik THIRD PARTIES. 263 Where the third party appears, ho may be allowed to actively assist in resisting the action (Pcarmn v. Lnne, W. N. 187«'», 248) ; and the plaintiff may treat him as a defendant and obtain discovery from him {McAHinter v. Biiikop of ItwhPHttr, 5 C. P. D. 194 ; see Bradley v. Clark, in note to Rule "'224 ; Pilkr v. Roherts, 21 Ch. U. 201 ; Hornhy v. Canlwell, 8 Q. B. D. 329.) Bales 110, 111. Ill h.iU 23. If a person not a party to the action served J>Jf^^<'|^°'y^ under these Rules appears pursuant to the notice, tlieot aetermin- party (living the notice may apply to the Court or a uons'in*' Judge for directions as to the mode of having the *''"*"'• question in the action determined ; (a) The Court or Judge, upon the hearing of such application, may, if it shall appear desirable so to do, give to the person so served liberty to defend the action upon such terms as shall seem just, and may direct such pleadings to be delivered, or such amend- ments in any pleadings to be made, and generally may direct such proceedings to be taken, and give such directions, as to the Court or Judge shall appear proper for having the question most conveniently de- termined, and with respect to the mode and extent in or to which the person so served shall be bound or" made liable by the decision of the question, [and as to the costs of the proceedings.] {Sec R. Sup. C, 1875, Order 16, R. 21 ; Yorkshire WiKiffon C<>. v. Newport <(; Ahercarne Coal Co., 5 Q. B. D. 268.) The words in brackets are new, and inserted in consequeiue of the decision above mentioned, tliat the Court had no jurisdiction to impose any terms as to costs. (See other cases infra, pp. L66-7). Otherwise this is the same as the English Rule. In either of the two classes of cases mentioned in Rule 107, before the trial of any issue raised against the third party can be had, the direction of the Court or Judge must be obtained under this Rule as to the extent to which the (question is to be entertained in the action and the mode in which it is to be determined (Piller v. Jtoherts, 21 Ch. D. 198.) This application in cases within Rule 108 is the first opportunity the plaintiff has of examining how the introduction of the third party will affect him, and notice of the motion must of course be given to him (see Bower v. Hartley, 1 Q. B. D. 652 ; Wye Valley, d-c. v. Hawes, 16 Ch. D. 489 ; Swansea, ctr. v. Duncan, 1 Q. B. D. 648-9). In general the motion Mill be made as the Rule provides by the party yhnny the notice ; but an appHcation seems to have been maertH, 21 V,\\. D. 198 ; Horwell v. London Omnihns, Ac. «'o., 2 Ex. D. 374) ; and all proper pleadings will be ordered to be de- livered and directions given as to the trial (see Withnni v. V^ane, 49 L. J., Chy. 242) ; or the looking at the circumstances, and notwith- standing that the third party may not have moved to discharge the service of the notice upon him, the (Jourt or Judge may determino that it is not a projier case for citing a tliird partj% or that the giv- ing of any directions will ])rejudice or delay tlie plaintiff and may tiierefore refuse to give any {Schneider v. Batt, 44 L. T. 142 ; 8 Q. B. D. 101 ; see Boirer v. FJartlcn, su/>. ; AHmciated Home Co. v Which- cord, 8 Ch. 0. 457), in which case the third party must be considered as dismissed from the action {Schneider v. Ball, 8 Q B. D. 70! , 45 L. T. 370 ; 50 L. J. Q. B. 525 ; 30 W. E. 420 ; 18 C. L. J. 50) Practice It seems to have been established in l']nglaud under the Rules prior to Kiig- prior to those of 188!!, that the object of the Rules is that where the llss'^and' i'n ■''•'^'"*^ question, of a substantial nature {Carrie v. Allen, 48 L. T. 464; Ontario. ^^- ^- '883, 34, 65) though not necessarily the whole question in the action (/io(wr v. Harlbii, 1 Q. B. D. 652) exists between several per- sons, thatcjuestion shall be tried once for all, and tiiat if there are no questions which can be determined between the jjlaintiff, the defen- . dant and the third party at one trial the case is not a ])roper one for citing a third party, and ho should be dismissed {Schneider \. Batt, 50 \u J. Q. B. 525 ; 8 Q. P>. D. 701); and this whether the third party is cited under IJule 108 {Swansea, kc, v. Duncan, 45 L. J. Q. B. 640 ; 1 Q. B. D. 649 ; Corrie v. A lien, supra); or Rule 109, {Schneider v. Batt, supra ; Marner v. Bright, infra, and The Bianca, 8 P. D. 91, where the third party Wds il:"'"'ssed on the ground that (questions between the defendant and the thiro party were totally ilitferent from those between tlie plaintiff and defend.ant, which w ouhl be embarrassing to tiie plaintiff). (See also Blaina Iron Co. v. Garbutt. 46 L. T. 162 where a question of seaworthiness was not as between the plaintiff and de- fendant and defendant and the third i)arty was not identical in point of time). The .same view seems to have been taken in Diimla.'i v. GU- inour, 2 < )nt 463, as the defendant and third party were not allowed to furthe?" litigate between themselves, after a trial had disposed of all questions so far as the jdaintiff was concerned. Th.at course was, however, allowed in Hornhij v. Gardwell, 8 Q. B. D. 329 ; 45 L. T. 781 ; and there is a very distinct expression of opinion by the Court of Appeal in England under the Rules of 1875 that it is competent to the Court or Judge, after the matters in which the plaintiff is con- cerned aredisposedof, togivedirectionsbywhichany subsequentques- tion between the defendant and the third party might 1)0 put in course of investigation {The Cartshurn, 5 P. D. 62). Probably the point can not be said to be settled in Ontario. (See notes to Rule 107, p. 257 and Rule 112, p, 267). In Nealil V. Gorki ndah', 4 Cnt. 317, accounts between defendant and a third party were adjusted at the trial, and out of a balance found in favour of the defendant, the third party was directed to pay the defendant the amount of the plaintiff's claim against defendant. Where respect of giving tht defendant Butler, 14 see also B The Ei indemnitj of the lial the trial question dant {Cai If the may be a question phi As.'i. Todd, W, Tn Bori that tlie sutficieut L« .___. THIRD PAKTIES. 265 Where a flefeudaut claims contribution from a co-defendant in g^le 111. respect of the ])laintiff's claim, it seems that there is no difficulty in jnilKinent giving the plaintiff judgment and adjusting the liabilities of the nKainst third ilefeudants between themselves by a subsequent imjuirv (Butler v. l''"'>''^''"^'',^ Batkr, 14 Ch. D. 329 ; Sawyn'\. Sawi/er, W. N. 1883, 181, 212;ant see also Boroiujh v. Jamen, AV. N. 188t, 32). The English Rules of 1883 are limrted to cases of coutribution. Practice indemnity, &:c., and expressly provide for the trial of the question ""''>•■'" t''^ of the liability of the tliird party to defendant (Rule 174), at or after onssa" the trial of tlie action, which has l)een construed as meaning that this question should be tried at the trial between the plaintiflf and defen- dant (Cawier v. Chapman. W. N. 1884, 31). If the third ])arty admits his liability to indemnify defendant he may be allowed to defend. If he iloes not .admit his liability that question may be determined at the trial {Oo/e.s v. Clril Sirrin; Siip- phi Ass., W. N., 1884, 44 ; 32 W. R. 407 ; 50 L. T. 114 ; Flower v. Todd, W. N., 1884, 47 ; 28 Sol. Jour. 301). In Borouffh v. Jarrn's, W. X., 1884, 32, it was said that the fact that tile third part}"^ has a counter-claim against the defendant is sutficieut to prevent judgment being given against the third party. These cases under t'le KnglisliMlule of 1883 will not be precisely in point under the practice in < tntario but bearing in mind the differ- ence in tlie scope of the Rules, they may be usefully consulted in cases of contribution &c. The following references will further illustrate this subject :^ d) Cases of contribution, indemniti/, liic, within linle 1 07 first part, and 108. In Beneche v. Frost, 1 Q. B. D., 419, an action was brought for Examples il- not accepting goods, and the defence was raised (amongst others) li'stratiriK that the goods were not according to contract ; the defendants were „jj^',.xj.|\'jl',g* allowed to bring in persons to whom they haS'. Co. 1 G. L. T. 730, an action was brought by D. against mortgagees to recover surplus moneys in their hands after a sale. The mortgagees claimed to retain part of the moneys as assignees of a judgment against D., and the whole was claimed by X. On motion by the mortgagees, X. was allowed to be brought in that the question between all parties might be determined. In an action for specific performance of an agreement to sell land, persons claiming interest in the laud were allowed to be cited as third parties to bind them on the iiue-stion of title (Harry v. Dairy, 24 W. R. 515), but an application afterwards to add them .as defend- ants was dismissed (2 Ch. D. 721). In an action foi- damages for breach of contract to supply a pump- ing engine which had failed through the breaking of the crank shaft ; third parties were allowed to l)e cited to be bound on the question of a latent defect in the forging {Northampton •(.•c. v. Eanton, cited Archibald, I'r. 136). Where tlie third party was alleged to have sold goods to defendant as of a certain (quality, and defendants represented them to be of the same quality when they re-sold to the plaintiff's, this was held to be a ground for indemnity without any special agreement on the subject, anil the third party was directed to be l)ound by the decision as to the quality {Jacobs v. Brown, W. N. 1884, 23.) See also Sted v. Dixon, \V. N. 1880, 113 ; 42 L. T. 765 ; 28 W. R. 796. Where a defendant is sued in different Divisions by different per- sons for the same money, the proper course for his protection is mat- ter for the discretion of the Court (Associated Home Co. v. Which- cord, 8 Ch. D. 457). It was at one time held in i*]ngland under the corresponding English Rule, that no power was given to the Court to impose terms as to costs on the parties bringing in the third party (see Yorkshire Watjiion Co. V. Newport Coal Co., 5 Q. B. D. 268.) This will not be so under the present Rule, as the concluding words " and as to the THIRD PARTIES. costs of the proceedings" have been introduced to meet the objection. Later English cases also affirm the jurisdiction, and where a third party appears and obtains leave to defend, his costs may be ordered to be paid by the plaintifiF ( Witham v. Vane, 28 W. R. 812 ; \V. N. 1880, 108; 1881, 79; 44 L.T.718); or defendant. (Z)aa«»on v. Shepherd, 49 L J. Q. B. 529; W. N. 1880, 110) ; or borne by himself ( WiUiawn V. S. E. Rij. Co., 26 W. R. ;^52) ; or he may be ordered to pay the plaintiflTs costs directly (PiUer v. Roberts, 21 Ch. D. 198) ; or de- fendant's costs, and costs payable by him to the plaintiff may be iven to defendant against the third party (Hornby v. Cardwell, 8 B. D. 329) ; see also Beynon v, Godden, 4 Ex. D." 246. 267 Snlea 111-113 112 24. A plaintiff is not to be unnecessarily delayed in Plaintiff not recovering his claim by reason of questions between delayed by defendants in which the plaintiff is not concerned ; between' and the Court or Judge is to give such direction as iiefendants. may be necessary to prevent such delay of the plain- tiff, where this can be done, on terms or otherwise, without injustice to the defendants, Tliere is no express Rule like this in the English Act, but the de- cisions of the Courts are to the same effect (see Bower v. Hartley, 1 Q. B. D. 652 ; Wye Valley R'y Co. v. Hatves, 16 Ch. D. 489). Procedure has not been unknown in Chancery, by which in some cases a matter in dispute solely between co-defendants, might be litigated by them. In Cay ley v. Hodgson, 13 Gr. 433, that pro- cedure operated so as to delay the plaintiff. It has, therefore, not been followed in some later cases (see Blsroe v. Ward, 1 C L. T. 129 ; and Campbell v. Iiohhi.wn, 27 Gr. 634). A question of title l)et\veen two defendants was decided at the trial in Wood>^ v. Wood.i, IGGr. 471. This Rule seems to recognize that there may be a determination of more than a question in which all parties are interested, and that issues may be tried in which the plaintiff is not concerned ; and there does not seem to be any good reason why, after a judgment dispos- ing of the plaintiR's claims has been pronounced, it should not be entered, and issues between other parties, either at the same trial or afterwards, disposed of without any new action, as was suggested in The CarLihnrn, 5 P. D. (52, and Pitler v. Roberts, 21 Ch. D. 198 ; and done in Hornby v. Cardwell, 8 Q. B. D. 329 ; 45 L. T. 781. See, however, Schneider v. Batt, 8 Q. B. D. 701, and Dnndas v. Gilmour, 2 Ont. 463, in note to Kule 111. 113 25. Where a person not already a party to a suit is Service on to be served with notice of a judgment or order for lleraonof un- the purpose of binding him as if he had been origin- ^"""*^ ""'''^• ally a party, and such person is an infant, or person of unsound mind not so found by inquisition or judi- cial declaration, the notice shall be served in the same manner as a writ of summon.s. (See R. Sup. C, April, 1880, R. 7.) Same as the English Rule. For mode of service in such case, see Rules 36, 37 and 45. all* il;''r P '• 268 ONTARIO JUDICATURK ACT, 1881. I i Rules 26. In any cause [or matter] for the administration 114, 115. of the estate of a deceased person, no party (a) other 1^'^ than the executor or administrator shall, unless by adniini'«t?a- Icavc of the Judgc, be entitled to appear either in ceedim"s. Court or Chambers on the claim of any person not a party to the cause ai^ainst the estate of the deceased in respect of any debt or liability. The Judge may direct any other party to the cause to appear, either in addition to or in the place of the executor or ad- ministrator, upon such terms as to costs or otherwise as he shall think fit. (R. Sup. C, April, 1880, R. 8.) The English Rule has not the words in brackets, and has at {a) the words " to the cause." Otherwise the Rules are the same. Mere liberty to attend proceedings does not necessarily entitle tlie party to costs of attendance. The order should so provide if it was tlie intention that costs should be allowed (Dcti/ v. Jieattii, 21 Cli. ' I). 830). Only one ]>arty should in general attend to oppose a contested claim in an administration action (Re Watts, Smith v. Watti^, 'r2 L. J. Chy. 2(>!»)- [518. Rule 114 is to extend to proceedings in the Master's office, and the Master is to have the same power as the Judge.] 114 a Last Rule extendi'ii Master's oflice. to 115 Wliat fi»u of a(^ti(iii may be joined. Former jpr.ictii'e. ORDER XIII. JOINDER OF THE CAUSES OF ACTION. ses I. Subject to the following Rules, the plaintiff may unite in the same action and in the same statement of claim several causes of action ; but if it appear to the Court or a Judge that any such cause of action cannot be conveniently tried or disposed of together, the Court or Judge may order separate trials of any such causes of action to be had, or may make such other order as may be necessary or expedient for the separ- ate disposal thereof (R. Sup. C, Order 17, R. i ; R. S. O., c. 50, ss. 84-S6 ; Eng C. L. P. Act of 1852, s. 41.) Identical with the English Rule. Under the former practice (prior to the Administration of Justice Act, at least, see 20 (ir. 57-i »), the Court of Chancery forbade multifariousness, or the uniting of se])arate and distinct objects in one suit ; but sought to deal with the rights of all parties interested in the subject matter brought l)efore the Court. The Courts of (^'oinraon parties ; a causes of provided saiiu' right nu'iit. T introduce! plaintiff vfiiit'nt CO plaintiff is by aildint whether (rriious ma The pri Common llules ccm is no long and the ri wliore the this Ordei The pre it !>< appi't same cons ('. h. V- iiuist, tlu Judicatar rehiticms indi'pt-'udt Tuder joined, ol severally, wide disc iuvustigai of plaint' one actio Juilges joindp:r of causes of action. 2G9 W w '. I' Cdiiimon Law limited the subi-;cts of litigation hy reference to pjuties ; anil sec. 84 of the (.'. L. P. Act, K. S. (). cliap. aO, allowed causes of action of whatever kind to l)e joined in the same action, provided they were Vjy and against the same parties and in the game right ; but this enactment did not extend to replevin or eject- iiu'iit. The Commissioners who recoiiimemled tliis change, first introduced in the English C. L. P. Act c»f IS.l'i, s. -tl, thought a plaintiff might be trusted not to jeopardise his case by an incon- VLiiicnt ci)nil»ination of claims. They said in their first report, "A plaintiff is not likely to damage his claim for criminal conversation by adding a claim which may direct attention to a (question of whether he is entitled to the price of goods sold, or other incon- gruous matter." 'I'lie i)rincipl(^s which formerly governed in Chancery and the (j)iinuon Law (Jonrts on this subject have been superse:i). The Uule nuist, therefore, as put by an able commentator on the English .hiilieafare Act, be taken to include, not only ditl'erent legal relations arising out of the same transaction, l)ut also separate and independent transactions (Wilson's Jud. Act, p. 187, -nd ed.) I'nder the preceiling Order any number of plaintiffs may be joined, claiming relief ag.ainst any number of defendants, jointly, sevorall}', or in the alternative ; and tlie ])resent Order gives a very wide discretion to plaintiff, as to tiie subject-matters which may be iu\ istigated in tiie action ; but it was iu)t intended that any numl)er of plaintiffs should be at liberty by a number of separate trials in one action to settle all the different complaints they might have against all persons wiiatsoever. Since the Administration of Justice Act, the view of some of the Judges in the Court of Chancery has been, that a bill res])ecting several distinct subject-matters was not open to the olijection of multifariousness, provided all the defendants were interested in each of the several causes of action (see Brown v. Vapron, '20 (iv. 574, «). Under -the Judicature Act and Rules it is submitted that there may be in an action : (1) Several sul)ject matters ; in which case all the parties to the action should be interested in e;ich of the different su)>ject matters, though the relief claimed against different defendants may l)e on distinct grounds and arising out of distinct legal relations of the parties ; or, (2) One subject matter ; in which case the plaintiff's may claim relief separately in respect of the same or distinct grounds, against one or more of the defendants, or two or more of them may claim relief jointly against one or more of the defendants. See Smith v. lUchanlson, 4 C V. D. 116, where Denman, J., said in giving judg- ment : " There is much force in the argument used to support the note to Order 17, Rule I, in the valuable edition of the Judicature Act, '2nd ed., p. 187, by Mr, Arthur Wilson, who suras up his reasoning thus. ' Order 16, dealing with parties, assumes an Rule 115. Under the Judicature Act. f:: ; 11 ; mi MM ■i A ,,:. 1 • 270 ONTARIO JUDICATURK ACT, 1881. I 1 I Enle 115- ascertained subject matter. Order 17, dealing with subject matters assumes ascertained parties. There must, therefore, be either iden- tity of subject matter, in which case Order 16 gives ample liberty in the choice of parties, or identity of parties, in whicli case Ordor 17 gives a like liberty in the choice of subject matters.' " Examples. I" Honduraa Rij. Co. v. Tucker, 2 Ex. D. 301, there was one sub- ject matter, a contract made and broken. The plaintiffs claiiuud relief against L. who made it, if T. was authorized to make it as agent of L., but if not so authorized then against T, as i)rincij)al. Both were held to be rightly made defendants. In Child V. Stenniny, 5 Ch. D. 095, the i>laintiff claimed daniafres from S. for a trespass, or in default from W. who had covenanted for quiet enjoyment. Both were held to be rightly made defendants. Tn Hoirdl V. We^t, W. N. 1870, 90, an action was held to l)e rightly brouglit against two defendants for totally distinct causes of action ; against defendant West for breach of a contract to persmi- ally look after the plaintiff's son who was in delicate health at tlie defendant West's school ; and against defendant Jones, a medical man, for negligent treatment of the plaintiff's son in an illness which resulted in his death at the school. . ' >oth V. Br'iiicoc, 2 Q. B. D. 496, eight plaintiffs were held to ' ^ I'! cly joined in an action for li1)el, each having an independent i,.ius>j nf action, but in respect of the same libel. In Baijut Muov were feudal) I . . EaMou, 7 Ch. D. 1, separate alternative causes of ^ ' to have been projierly joined against the same de- In Dcaxilla v. Schunrk, ii:c., W. N. 1880, 96, it was held, that separate causes of action against separate defendants might l)e joined with joint and several causes of action, where all related to the same subject matter. The liberty given by the present Rule is, however, subject to tlie limitations contained in the following Rules, and to the discretion of the Court to interfere in order to prevent issues being raised wliicli embarrass a fair trial of the action. In Re Worssam, Hemery v. Worsnain, 51 L. J. Chy. 669, the Court declined to entertain an action to set aside a transaction and in tlie same proceedings inquire whether to do so was for the benefit of infants or unborn persons. The provisions of the Rules for preventing any of the parties from being prejudiced are two : Striking out (1) A claim which embarrasses a fair trial of the action may be embarrass- sti'uck out (Rules 122, 123, 178). This was done in a case where a claim was made for inconsistent alternative relief by different plain- tiffs, (Smith V. JHchardion, (supra), where the vendor of goods and indorsees of a bill given by the purchaser to the vendor for the price, jointly sued the purchaser to recover the price, and also upon the dishonoured bill. ing claims for diverse causes of action. Separate trials. (2) The Court may direct the different causes of action to be tried separately under the concluding clause of this Rule (see Bagot v. Eaaton, 7 Ch. D. 1 ; Child v. Stenning, 5 Ch. D. 695, and Day v. Raddiffe, 24 W. R. 844 ; Barker v. Cox, 3 Ch. D. 359). This course might formerly have been directed under s. 85 of Rev. Stat. c. 50 (see Fitzsimmona v. Mclntyre, 5 Pr. R. 119). JOINDER OF CAUSES OF ACTION. 271 2. No cause of action shall, unless by leave of the Eule 116. Court or a Judge, be joined with an action for the 116 recovery of land, except claims in respect of mesne rerovciy°of profits or arrears of rent in respect of the premises 'i»nd. claimed, or any part thereof, and damages for breach of any contract under which the same or any part thereof are or is held [and except claims in actions on mortgages for the recovery of the mortgage money and for foreclosure or sale]. (R. Sup. C, I^75, Order 17, R. 2 ; R. S. O. c. 50, s. 84). Same as tbe English lUile, except the words in brackets. In actions of ejectment and replevin, s. 84 of the C L. P. Act did not allow the joinder of other canses of action. That exception iu cases of ejectment is continued in a modilied form l)y the present Kule ; but an action of replevin seems now to stand in no di He rent position from other actions, no special provision having ))een made by this Order for cases of replevin. Formerly, no claim could l)e joined with a claim for possession in ejectment, except a claim for mesne profits in the case of a landlord against a tenant (Kev. Stat. c. 51, s. 70) ; and notliing was recpiired to be stated in the writ or the issue to enal)le the plaintili' to claim mesne profits ( Cli. D. 'I'ii) ; F/ftc/irr v. Roddci}, 1 Out. IT);"), see also llenth v. Pin/li. (i Q. H. I). .'Ui» ; 7 App. (Ja. 23")), but these cases may not affect the construction of the present Kule. In tile foreclosure actions of ordinary occurrence the question will not arise as the concluding words of the Rule expressly meet tlio case of an express claim for possession joined with the other usual remeilies against a mortgagor. Those concluding words in brackets were inserteil to prevent any doubt as to the continuance of tlie existing practice, by which, in one suit, a mortgagee may sue iip^ri covenants for payn\ent of the mortgage money and delivery of poa- session on default in payment, as well as for foreclosure or sale. In one case it was considered doubtful whether this concluding clause of the Rule met the case where foreclosure was not asked but merely possession ami payment and leave was for greater certainty obtained {Trust d- Loan v. Hallonin, 17th .Sept., 1881, Mr. Stephens, otHcial Referee). A separate action siiould not i>e brought for pos- session where other remedies against the mortgagor are claimed [Hdiiv. Mc Arthur, 8 Pr. R. 321). Where a plaintiff claimed possession as the assignee of a lease made by him to the defendants who assigned to a third party, who assigned and surrendered to the plaintiti, and the defence was that the lease was in effect a mortgage and fraud and want of considera- tion were alleged, the plaintiff was not allowed to amend his state- ment of claim and ask foi-eclosure of the land as mortgagee (J/c- Ilhiirij('!i V. McO'iiuiis, S) I'r. It, 157). Leave was given iu Trmt y, 7 B. & C. 444 ; Conicr v. S.'iciu, 3 M. & W. 350; Bollmibroke v. K^n; L. R., 1 Ex. '22'2 ; Moxehy v. Bendell, L. R. G Q. B. 338 ; Ahhoft v. Parjift, L. R. 6 Q. B. 346. Seinhle that as regards claims by an executor, this Rule refers to a case where the plaintiff's personal claim is in respect of the assets of the testator (jiia assets ; the claim as executor and the claim per- sonally are to be with reference to the same estate [Johnnon v. Bur- fifcvA', 47 L. J. Chy. 552). Tlie Rule does not apply to a counter-claim, so as to enable the defendant to set up by way of counter-claim, claims against the plaintiff personally and as executor, where he is only suing in a dis- tinct personal character (Macdonald v. Carington, 4 C. P. D. 28). 18 III: .)! i 1 ■ " \ I **t A ii t :i ''' I IS. 1' 1' n V I mi irij •If I' ji St .,' " M 274 ONTARIO JUDICATURE ACT, 1881, Bnlea 120-123. 120 Joint and several claitUH. 6. Claims by plaintiffs jointly may be joined with claims by them or any of them separately against the same defendant. (R. Sup, C, 1875, Order 17, R. 6.) Same as the English Rule. 121 7. The last three preceding Rules shall be subject or"iTa%ai-to Rulc I of this Order, and to the Rules hereinafter ato trial. contained. (R. Sup. C, 1875, Order 17, R. 7.) Same as the English Rule. The words "subject to Rule 1 " refer, as the side note shows, to the last clause of Rule 1 15, giving power to the Court or Judge to order separate trials of the difiorent causes of action where necessary ; and Rules 122 and \2'A make further provisions or prescribe the modiiN operandi for carrying out the same o})ject (.See Cox v. Barker, 3 Ch. D., p. 'ATI, per Baggallay, h. J.). 122 8. Any defendant alleging that the plaintiff has Application •. i • -i ,^- i c ,• tostrikeout. united in the same action several causes oi action which cannot be conveniently disposed of in one . action, may at any time apply to the Court or a Judge for an order confining the action of such of the causes of action as may be conveniently disposed of in one proceeding. (R. Sup. C, 1875, Order 17, R. 8 ; R. S. O., c. 50, s. 85 ; Eng. C. L. P. Act of 1852, s. 41.) Same as the English Rule. Compare similar power given in Rule 127 and 168, in regard to counter-claims, and see //((// v. Old Tnlarqoeh Lead Mining Co., 45 L. J., Chy. 775 ; 34 L. T. 901 ; re Woodfine, 38 L. T. 753'; Bmjot v. Easton, 7 Ch. D. 1 ; DesniUav. SchmJc, Ac, W. N. 1880, 96. 123 Order to stvike out pleadings 9. If, on hearing of such application as in the last preceding Rule mentioned, it shall appear to the Court or a Judge that the causes of action are such as cannot all be conveniently disposed of in one action, the Court or a Judge may order any of such causes of action, to be excluded, and may direct the statement of claim, or, if no statement of claim has been deliver- ed, the copy of the writ of summons and the indorse- ment of claim on the writ of summons, to be amended accordingly, and may make such order as to costs as may be just. (R. Sup. C, 1875, Order 17, R.9.) Same as the English Rule. LUNATICS, ETC. 276 ORDER XIV. ACTIONS BY AND AdAlXST LUXATICS AND PERSONS OF UNSOUND MINI). Rale 124. 124 In all cases in which lunatics and persons of un- iihhih; sound mind, not so found by inquisition or judicial ''''''"""'• declaration, might respectively before the passin<^ of the Act have sued as plaintiffs, or would have been liable to be sued as defendants, in any action or suit, they may respectively sue as plaintiffs in any action by their committees or next friends in manner prac- tised in the Court of Chancery before the p.issin^ of the said Act, and may 'n like manner defend any action by their committees or guardians appointed for that purpose. (R. Sup. C, 1875, Order 18; R. S. O. c. 40, s. 65, c. 220, ss. 49, 50.) SaTne as the English Mule. The practice atlopted by this Rule is that of the Court of Chancery. As Plaintiffs. — A lunat'^^ so found by inquisition (or judicial de- I-'inath^s a« claration under Rev. Stat., c. 40 s. (io, ) and having a conimitteu, ''''''^"' must sue by him. If he has no committee, or if tlie committee has an interest in the subject matter of the action, adverse to the lunatic, tlie suit in certain cases may be brought l)y the Attorney-(Teneral (.1////. Gen. V. Piinther, 2 Dick. 748), but is usually by next friend (L'l'iht V. Light, 25 Beav. 248) ; who may be any person who chooses to act, just as in the case of an infant (S/iinnrr v. White, 19 C. L. .1. 115) ; and need not be a solvent person [Shai-pv. Sharp, 2Chy. Ch. 244; Gramleii v. Kingston, 3 C. L. T. .311) ; but a com- mittee before instituting a suit on behalf of a lunatic or his estate must obtain the sanction of the Court (Dan. Prac. 5th ed. 82). If an action is brought in the name of a person, who was at the time in a state of mental incapacity, without either a committee or next friend, the defendant may move to dismiss the action, but not if the plaintiff becomes imbecile after commencing an .action in the ordinary way (Dan. Pr. 81, 83 ; Wartnaby v. Wartnahy, Jac. 377 ; Blake v. Smith, You. 594), Where an action is brought by a next friend on behalf of a person alleged to be of unsound mind, but who is really of sound mind, the action will on his application, shewing by affidavit his sanity and ability to manage his own afifairs, be ordered to be dismissed with costs against the next friend (Palmer v. Waleshy, L. R. 3 Chy. 732) ; and the defendant may make a similar application (Skinner v. White, 19 C. L. J. 115). The application must be to a Judge in Chambers, since if the affi- davit was contradicted or doubtful, an inquisition in lunacy might be directed and the Master in Chambers has no jurisdiction to enter- tain such a question (Skinner v. White, s^ip. ). If a plaintiff is found \ lunatic, and a committee appointed after the commencement of »q action, an order should be obtained for the committee to carry pj» the proceedings (Qreen v. Pratt, 41 L. T. . 1 I ■< 1* ( ,;;; 27G Bnle 124. Insane Pei'HonH. As defend- ants. ONf'ARIO JUDICATURE ACT, 1881. .'{(>, ami see li-iiU v. Smith, L. 11. 9 C'liy. S"), where thu eHect of tliu a|i|)()iiitmuiit of a coiiitiiittuo wan said to paralyzo a prcueiliug action )iy a iiu.Yt friend). If during the action the committee dies or is removed, and a now committee is ai)i)ointed, a similar order should he olttained. If the plaiuciti's solicitor neglects to ohtain an order in either of such cases, to carry on the proceedings, the defemhuit m;iy. l>i;fore judgment, move to dismiss the action, unless the order is ohttiined within a limited time ; after judgment the defendant may ohtain the order himself. (See Dan. Koinis 55, 8rd ed. ) Tlie Court has no jurisdiction over the pro|M3rty of a person of unsound mind, except to protect it, so that where more is desin the proper course is to apply for the appointment of a committee l»rosecute the suit {Skhincr v. White, hiij). ; see Junes v. Lluijd, L. U. 18, Kq. '-'05 ; Bealt v. Smitli, !.. 11. i» (Jhy. 85). .•1.S Defendant!*. — A lunatic defends by the committee of his estate, if he has one. If he has none, or the committee has an ad- verse interest or the lunatic has not been so fouiul l)y incpiisition or judicial declaration, he tlefeuds by guardian nd litem under this Rule. (See also Howlett v. Willmiham, and Worth v. McKenzie, niipra.) The committee of a lunatic's estate is a necessary party defendant with the lunatic in an action relating to that estate, and may defend without obtaining leave. (Dan. Pr. 5th ed. 82). As to the mode iu wliich a lunatic defendant is to be served, see Rule 38. After service, nf) further proceedings are to be taken against a lunatic wlio has no committee, until a guartlian (td litem is appointed (Rule ;W). If tiie friends of a lunatic desire to defend for him, they sln)ul(l cause an appearance to he entered for him (see Rule 09), a'' then apply in Chambers [Crawford v. Vntw/ord, U I'r. R 178) have a guardian ad IH'in appointed. Any lit person who has adverse interest may be such guardian (Dan. I'r. I <■()), but j)iobably in general the official guardian or a solicitor should be appointed. If no application is made on the lunatic's part the plaintift" may, aftei- the time for appearance has expired, apply for the appointment of a guardian by motion on notice ; in which case the official guardian will be appointed, unless he be already acting as solicitor for the plaintiflf, or unless the friends of the lunatic ask for the appointment of some other person, in which case some other proper person may be appointed (see Rule GO). The defence of a lunatic or person of unsound mind shouhl be expressed to be by his committee or guardian (Arch. Pr. 1048). Where a person of unsound mind has to be made a party in the Master's oihce after judgment, or to be served with notice of motion for adunnistration order, a guardian ad litem must be appointed in the former case on application to the Master (Chy. (len. Ord. 522, 587), and in the latter case on special motion in Chambers before the application for administration order is made (Chy. Ueu. Order, C22 ; Barnj v. Brazil, 1 Chy. Ch. 237). Service of persons of unsound mini'i nii'-x , .• , /.iiliiili»lit'd. the Court ot Pl-KAPINO. OKI) E It XV. I'LHADINC! CKNEllALLY. I. The following Rules of pleadin tuted for those heretofore used in Chancery and in the Courts of Common Law. (Comp. R. Sup. C. 1875, Order 19, R. i.) Same as English lliilo. For the definition of " pleading" aee sec. 1)1. The former system of pleading at ( 'ommon Law retinired the parties to set forth the legal result of the facts, and not the facts tliemselves. Under the Judicature Act the facts must l)e stated, and the Court decides what is the legal result ilfninmr v. Fliii/if. 'A'i L T. Vll ) The new system is thus tn > ^reat extent similar to that of the Court of Ciiancery ; and the ii. cis of ( hancery pleadings, except in some points noticed heii after, (notes to U. 1*28, ) will in general serve as guides (Ifi-ap v Mnrrin, 2 () B. 1). U.SO). 126 2. Unless the defendant in an action at the time ofHtat.tn.ntof , . Ill 111 -1 clanii and hts appearance shall state that he does not rcquwe tne.ietence. delivery of a statement of claim, the plaintiff shall within such time and in such manner as hereinafter prescribed, deliver to the defendant after his appcar- an e a statement of his claim and of iiic relief or remedy to which he claims to be entitled ; [or a notice in lieu of such statement as provided by Order 17 of these Rules]. (R. Sup. C, I.S75, Order 19, R. 2. S-e Rule 159). (a) The defendant shall, within such time and in such manner as hereinafter prescribed, deliver to the plaintiff a statement of his defence, set-off, or counter- claim (if any). (Id. R. 2.) fb) The plaintiff may, in like manner, deliver a statement of his reply (if any) to such defence, set-off, or counter-claim. (lb. R. 2.) (c) Such statements shall be as brief as the nature of the case will admit, and the Court in adjusting the costs of the action shall inquire at the instance of any party into any unnecessary prolixity, and order the costs occasioned by such prolixity to be borne by the party chargeable with the same. (lb. R. 2 ; See G. O. Chy., No. 71.) (ff) The taxing officer shall have the like duty where the Court has not made such order. (See Order 50. R. 8, post.) }. ! ti i 278 ONTARIO JUDICATURE ACT, 1881. Rules This is substantially the same as in the English Rule ; the words 126 127. ^^ brackets, and cLiuse (d), are new. As to the time and manner for delivering the statement of claim, see Rules 158 and 131. The provision as to costs [clause (c)] does not interfere with the power of the Court to strike out pleadings for prolixity (see Mar,^h V. Poiifrfmrt, il-c, W. N. 1870, 7; 1 Charl. Oh. Ca. 66; Ban/ v. Onrreft, 7 Ch. D. 47.3). As to the power of the Court to strike out scandalous matter see BrU/ht V. Marnn-, W. ^. 1878, 211 ; Cracknall v. Janmn, 11 Ch. D. 1 ; see also Rule 1 78, and a.s to scandalous matter in affidavits, Warner V. Mos.ir.i, W. N. 1881, 69; Kcnrkk v. Kenrlck, 12 W. R. 335; Sad/in- V. Smith, 7 Pr. R. 409 ; Blakr v. Jlhion, 24 W. 15. 677, and as to powers of taxing officers in disallowing costs of unnecessary proceedings, Rule 435. Nothing is scandalous which is relevant (Mlllington v. Lurhuj, 6 Q. B. D. 190) ; and the test is whether the matter alleged to be scandalous would be admissible in evidence to shew the truth of any allp^f.ition which is materi.'il vvitli reference to the relief prayed (Clirlstie V. C/irLslir, L. R. 8 Cliy. 499 ; Ca.shin v. Craddock, 3 Ch. D. 376). 127 Set-off and fiounter- claiiii. 3. A defendant in an action may set-off, or set up by way of counter-claim, against the claims of the plaintiff, any right or claim whether such set-off or counter-claim sound in damages or not. (R. Sup. C, 1875, Order 19, R. 3.) (ti) Such s2t-off or counter-claim sh» a have the same effect as the statement of claim in a c. ss-action, so as to enable the Court to pronounce a final judg- ment in the same action, both on the original and on the cross claim. {Ih. R. 3.) (d) But the Court or a Judge may, on the applica- tion of the plaintiff before trial, if in the opinion ot the Court or Judge such set-off or counter-claim cannot be conveniently disposed of in the pending action, or ought not to be allowed, refuse permi.ssion to the de- fendant to avail himself thereof {lb. R, 3.) This is identical with the English Rule, and is one of the I'ules made in furtlierance of the provisions of sec. 16, sub-s. 4 of the Act. Part of the benefit given by this section has been discussed under Rule 107. In adught in as defendant to a counter-claim against whom relief is claimed in one of two inconsistent alternatives (see note to Kule 91). A defendant is not entitled to set up in his counter-.claim a hypo- thetical case for relief against a third party (Sackville v. Pao'i/, 18 C. L. J. 14). A defendant may not serve a third party out of the jurisdiction with a counter-claim (Potters v. Miller, 31 W. K. 858). See, how- ever, Be Litckie, W. N., 1880, 12. Where a defendant counter-claims against plaintiff as liable alone tlie plaintiff cannot have added another person whf>, he alleges, is also liable as to a part of the counter-claim {Ei/re v. Moreimj, W. N., 1884, 58). In any case, a counter-claim can only be set up where an action Connter- miglit be brought. A counter-claim has therefore been disallowed ^'ll^"" ""'y where it set up a debt alleged to have been mcurred by the plaintiff .^j.^^^ action when an infant and not ratified under Lord Tenderden's Act (Rnwleij would he. v. Rdwley, I Q B. !). 460.) So in an action by an administrator for the balance of an intestate's Banking Account, a debt due from an intestate on a note which became due after his death was not allowed to 1)6 set up, because an administration order had been before action ohtaitied, of which the defendants had notice ; and under 23 and 24 Vict. chap. 38 sec. 14, Equity, would restrain the defendant from pro- ceeding on the note, leaving him to prove for it in the administra- tion proceedings (Neivnll v. National Provincial Baitl of Em/land, 1 C. P. D. 496 ; 1 Charl Ch. Cn. 82). So also, where the claiiii set up in the counter-claim had been extinguished by the obtaining of a juilgment in another Division, which judgment the defendant was not at liberty to enforce without leave {Birnumiham E/itaten Co. v. .S'/)/i7/(, 13 Ch. D. 506.) See also BediWl v Mnlt'land, 17 Ch. D. 174, will re a counter-claim for damages for forcible entry under the Statute of Richard II. failed, because that Act gave no civil remedy. (See also Re Milan Tramways Co., ex parte, Thu/a, 22 Ch. D. 122; Gathercole v. Smith, 7 Q. B. I). 626; Beatty v.' Mair, 10 L. R. Ir. 208). Whether a counter-claim is to be considered merely as a defence, or as something like a separate action, has been much discussed. By the terms of the present llule it has the same effect as a statement of claim in a cross-action t" enable judgment to be given on both claim and counter-claim (see Lumsden v. Winter, 8 Q. B. I). 654) and it was early viewed as in the nature of an independent action in dealing with the question of the costs of it. (See Stooke v. Taylor, 5 Q. B. D, 577 ; Baines v. Bromley, 6 Q. B. D. 695 and notes .mi)ra p. 279, and to Rule 428. ) It has since been so viewed for other purposes. For instance in Counter- Beddall v. Mnitland, 17 Ch. I). 174, it was held by Fry, J. that a '"•*''"' h"w counter-claim is an independent action, and relief may be given upon ^Jnd'nt^ it in respect of a cause of action that arose after the issue of the action. *h'. M > ' 282 ONTAIUO JUDICATURE ACT, 1881. ! Rule 127 wi* "^ t^® original action ; and this view seems now established, (See McGowan v. Middleton, 11 Q. B. D. 469). In EIIm v. Mumon, W. N. 1876, 253 ; 35 L. T. 585, the Court of Appeal had previously held that such a counter-claim should, under Onler 1(5, state that it was founded on facts which had arisen since the action was brought ; and in 1877, in Or'u/inal Hart/cpool VolUenex Co. V. G'lhh, 5 Ch. IJ. 713, Jessel, M. R. had expressed the opinion that damages claimed by counter-claim must be limited to the date when the writ issued. In accordance with the principle of Beddall v. Maittaml, it has further been now decided that tlie discontinuance of an action ]»y the plaintitf does not put an end to a counter-claim (McGowan v. Middle- ton, 11 Q. B. D. 464, overruling Vavaaneitr v. Krupp, 15 Ch. I). 474) ; that a counter-claim may be revived on death of the defendant, inde- pendently of the revivor of the action by the plaintirt" {Andrew v. Aitkrn, 30 W. l\. 701 ; 46 L. T. 689) ; and that a plaintiff may in his reply to a counter-claim sot up a counter-claim against defendant {Toke V. Andrcu's, 8 Q. B. 1). 428). See also 19 C. L. J. 162. An order will not, however, be made upon the counter-claim until the original claim is tlealt with {Aitkin v. Dnnhar, 46 L. J. (Jhy. 489) ; but whether issues raised by the claim and counter-claim shall be tried together is a matter of convenience (Ifg [Voodjine, Thompson V. Woodjine, 38 L. T. 753 ; 47 L. J. Chy. 832). In respect of security for costs also, a defendant who sets up a counter-claim l)ecomes to some extent in the position of a plaintiff in a cross-action ( Wintcrfipld v. Bradnnni, 3 Q. B. \). 324) ; and when out of the jurisdiction was in one case ordered to give security for costs {The J. Fisher, 2 P. D. 1151 ; but a defendant will not l>e entitled to security where his counter-claim is in respect of the same subject matter as the plaintiff's claim {Mnplcson v. Masini, 5 Q. B. D. 144 ; see also Shepherd v. Haiihall, 13 (ir. 681) ; and where he admits the plaintiff's claim and sets up a counter-claim founded on a distinct claim, he cannot demand security for costs from a plain- tiff if out of the jurisdiction: qiuere, lujwever, where he sets up a counter-claim for an amount greater than tl.'e plaintiff's claim. (See Winterfield \. Braduuni, supra.) See also notes to Rule 429. There is jurisdiction to stay proceedings in a cross-action and allow the claim to be set up by counter-claim in another action, yet it should only be done when the points at issue are the same {Adavi- son V. Tnff, 44 L. T. 420). Where two or more plaintiffs sue for a joint claim, the defendant may set up separate claims against the plaintiffs severally [Manchester cfc Sheffield Railway Co. v Brooks, 2 Ex. D. 243). It is not necessary that the amount claimed by the defendant should be ecpial to the claim of the plaintiff (Mostyn v. West Mostyn Co., 1 C. P. D. 145). Where the issues of fact in the claim and counter-claim were identical, it was held that the plaintiff was not entitled to adduce in reply to the counter-claim fresh evidence which would have been material to the original case (Green v. Stvin, 13 Ch. I). 589). See also, as to the evidence where claim and counter claim are tried together, Be Woodjine, Thompson v. Woodjine, 38 L. T. 753. A counter-claim may be set up by the Crown in a petition of right . (Thomas V. The Queen, W. N. 1875, 218; 1 Charl. (;h. Ca. 71). COUNTER-CLAIMS. 283 In order to prevent the abuse of the extensive powers of coiuitir- ji,jg i27, claim given to defendants the Court may impose restrictions in two ways : (1) Under the last clause of the present Rule, by refusiiiij pernii.s- Kxclusidti gjou to the defendant to avail liimselt of the counter-claim if in tlie "''.'"""*■''''"_ ojiinion'of the Court or Judge the same cannot conveniently be dis- jnmnve'-"^'* posud of in the pending action or ought not to be allowe ; see also /Ii(fi;/„iis v. Tu-i'i'd, 10 Ch. 0. S")!*, and Rule 420). In general, however, in Ontario any motion of i\\m kind, before trial, will be made in Chambers. Hven at the trial it would seem to be not too late to object that thi! counter-claim is one wliich ought not to be allowed {BurhiT v. Blailxrn, 19 Ch. D. 478). In Nnyfor v. Farrer, Jessel, M. R. , sfvid that, in his opinion, under order 19, Rule li, a defendant might set up any number of counter-claims. There was no limit laid down. in that Itule either to their number or nature ; l)ut it was left to the discretion of the Court or a Judge to do so, otherwise Hfty causes of action of the most iliverse nature might be joined together and set up, and wit- nesses of all kinds called in support of each. How Mould it be iios- siltle for the Court to try all those in one action V There must also be some limi^ to the character of the claim set up. Suppose, for instance, an action for account brought by a surviving partner again.st the widow, who was also the executrix, of the other, to which the M'idow set up a counter-claim for damages for Itreach of promise of niarriage, eouhl that be saitl to be a counter-claim which could be conveniently disposed of in the pending action ? It was impossible. The Judge must exercise the discretion given to him by the Rule in aUowing or rejecting a counter-claim. In that case, the matters set up by defendant were totally uncon- nected with the partnership, the subject of the plaintitf' s claim. In his Lordship's opinion they could not be conveniently disposed of as a counter-claim, but were nt subjects for a cross action. xSo injus- tice, he said, wouhl be done to the defendant by striking out the counter-claim, because his Lordship would not be allowing the plain- tiff, as in some cases, to get money from tlie defendant which he migiit not be entitled to, and which the defendant might not afi'ord to spare ; for the defendant would be able to get his money in the cross-action before the plaintitf, who would only get an order for taking accounts, couhl get any order for payment in the present action. ('!) Under Rule 168, by striking out the counter-claim on motion, Striking out generally made in Chambers (see Nay'or v. Farrer, aup. and Coe where im- Prac. inCham. 78). " ' l"''!'"'- In linrtholoDiew v. RatvliiKjs, W. N., 1876, 56 ; 2 Charl. Ch. Ca. 32, Archibald, J., said, " There is no doubt whatever that a defend- ant is entitled to set up any counter-claim that is not so incongruous as to be incapable of being conveniently tried with the original claim. ' The (piestion of the convenience of trial depends greatly upim whether the subject of the counter-claim is germane to the subject of the action. Hut though a counter-claim be not in relation to matters foreign to the subject of the action, still the fact that if it will necessitate a long account, and thus unduly delay the action, may furnish grounds for excluding it (Gray v. Wabb, 21 Ch. D. 802). ' In Canadian Seciiritien Co. v. Prentice, 9 Pr. II. 329, Cameron, J., said : "I have assumed that allowing or disallowing a counter-claim I . I I I W 284 ONTARIO JUDICATURE ACT, 1881, Eule 127. where third parties are to be brought in, is matter of discretion, not of course to oe exercised arbitrarily, but upon consideration of all the circumstances, including rights involved in the counter-claim and the question of delay and convenience of trial. In jury eases there can be no question that much difficulty may arise by the mix- ing up of different claims — if I may use the term "mixing" in such connection— and cross or counter-claims in the same action • and unless the clear legal rights of the defendant for his ]irotection against the plaintiff's acticm would seem to require it, counter-claims ought not to be favoured." Counter- A counter-claim for damages arising out of the same sul>jfct -claims matter or contract svs the plaintiflF is proceeding upon, is therefore a 'owed. j,j general, proper. So also a counter-claim in the nature of a cross demaml, pecuniary or otherwise, unconnected with the 8ul)ject matter of the plaintiff's claim, provided there is no inconvenience in having a trial of both in the same action. ExampU'.'<: — Action by a stockbroker for price of shares. Counter- claim for fraudulent misrepresentations as to the value of the shares (Auo». 1 Chad. Ch. Ca. 73; Emus v. Gnnn, W. X. 1875, ]{)!); 1 Charl. Ch. Ca 70). See also Lve v. McMuhon, 2 Ont. (554. Action for price of iron. Counter-claim for inferiority of iron. (Anon. I Charl. Ch. Ca. 7.3), or non-delivery of part, {Midland lii), Cv. v. Ontario Jiui!in;i MilU, 2 Ont. 1). Action for price of coals. Counter-claim for non-delivery of balance of cnals (Norton v. Mcrrlman, W. X. 1875, 219 ; 1 Charl. Ch. Ca 80). See Fulton v. U. C. Furniture Co., .32 C. P. 422 ; 20 C. L. J. 11. Action for negligent construction of ship. Counter-claim for extras due beyond the contract price Clrinacria v. Riekardmtt, W. X. 1875, 219; 1 (;hari. Ch. Ca. 74). Action by builder. Counter-claim for breach of covenant in build- ing contract ( Trevena v. Watts, W. N. 1875, 250 ; I Charl. Ch. Ca. 79). Action by lessor for rent. Counter-claim for an alleged debt and damages for non-})erformance of lessor's agreement {Atwood v. Millfr, W.N. 187(5, II; 1 Charl. Ch. Ca. 82. See Atkinmn v. Ellison, W. N. 187.5, 199 ; 1 Charl. Ch. Ca. 69). Action of ejectment for non-payment of rent. Counter-claim for rectification of lease so as to state terms by which no rent woultl be due (Carew v. Christopher, 10 L. R. Ir. 38). Action of ejectment by heir against widow. Counter-claim for Dower (67rt.v.s v. Cla,in, 9 Pr. R. 14). Action for recovery of land and mesne profits. Counter-claim for damages for illegal distress against plaintiff and his bailiff (Dorks- tader V. Phipps, 9 Pr. R. 204). .A counter-claim was allowed claiming against an assignee a set-off of damages due from the assignor ( Younij v. Kitchen, 3 Ex. I). 127 ; Ecrhanf/e Bank v. Stinson, 32 C P. 158 ; .see Pellas v. Neptune Ma- rine Ass. Co., 5C. P. D. 34). Where A sued B on a bill and B defended by alleging that A was really trustee for C who owed B money, B was allowed to bring in C and claim set-off (Macdonald v. Bode, W. N. 1876, 23). Action by executors to charge a married woman's estate with a debt to their testator. Counter-claim by her and her husband, also .a defendant, for money belonging to the wife, not part of her sepa- COUNTEH-OLAIMS. 285- rate estate, and for chattels in the possession of the testator at his juig i27. death, and alleged to be the property of the husband (Hudson v. MoM, 8 Ch. I). 569). Action by centait (/ue trnsfent against a surviving trustee to make godd purchase money of testator's share of a partnership business, allowed to remain outstanding. Counter-claim to be indemnified by all rfntuis /fs : — In an action of assault and battery, Quain, J., said that he would not allow a counter-claim to be set up for seduction of the defendant's daughter (Cappele.us v. Brown, VV. N. 1875, 231 ; I Charl. Ch. Ca. 77). .\i;tion for assault. .\ counter-claim for breach of agreement to repair a house was struck out, though an endeavour was made to connect the causes of action by shewing that the parties were talk- ing about the state of the house at the time of the assault (Lee v, Cuhin; W. N. 1876, 8 ; 1 Charl. Ch. Ca. 86). .\ction for libel consisting in the circulation of a let:er by defend- ant among the shareholders of a Colliery Company. The plaiutiflf was one of the directors in the company, who were chargeil in the letter with conspiracy and fraud. Counter-claim for damages for loss sustained in respect of shares bought on false repre.-ir- chase by him of certain patent rights. H. and N., who were made co-defendants as claiming some interest in the subject matter of the contract, alleged that the plaintiff had agreed to sell to them, and not to S., and that they had afterwards agreed to sell to S. Hy counter-claim H. and N. asked for specitic performance by the plaintiff of his agreement with them, and by S. of his subsequent as^reement with them. The counterclaim was excludecl (McLay v. Uliarp, VV. N. 1877, 216). I ' ; i u jjji ;•*! ■. iij I ii 286 ONTARIO JUDICATITRE ACT, 1881. Enle 127. Action to recover land for non-payment of rent. Counter-claim not connected with plaintiff's demand, in the absence of sj)cuial circiunstances disallowed (//i"WiV;p V. 0'Fa7-ri'll, 8 L. R. ir. 158). Action l>y A. against B. for trover of goods whicli C. assigned hy bill of sale to A., and which B. had seized. Counter-claim by B. alleging a bill of sale from (J. to him and claiming relief against (!. "ui)()n it. f/i-ld, so far as claim against C. was concerned, not ssuf- iiciently connecteply in many respects to a counter-claim as to a statement of claim (see 'Hollowiu/ v. York, 25 \V. R. G27). A counter-claim is subject to the same rules as a claim in respect to the causes of action which may be joined, and therefore a counter- claim for recovery of land with an independent claim for damages was disallowed as contrary to Rule IIG (Compton v. Pre.Hton, 21 Ch. D. 138). By the express terms of the Rules, the relief prayed for by way of counter-claim must be specifically stated (liule 133); and the facts supporting each cause of action are, as far as mjiy be, to be kept distinct (Rule 134); but a counter-claim under the Ontario Acts and Rules is not governed by as strict regulations as in England. Rules 10 and 20 of the English Order 19 have not been adopted here. Rule 10 provided that "where any defendant seeks to rely upon any facts as supporting a right of set-off or counter-claim, he shall, in his statement of defence, specifically state that he does so by way of set-off" or counter-claim. " Under this Rule a defendant is not allowed in England to mix the facts supporting his counter- claim, indiscriminately with those constituting his defence. Where a pleading was headed "statement of defence and counter-claim," and set forth in thirteen paragraphs facts on which the defendant relied for his defence without making any reference to counter- claims, and concluded in the fourteenth paragraph with a claim by way of counter-claim for damages," it was held by Fry, J., to be not a proper counter-claim and was dismissed (Crowe v. Barnkot, 6 ('h. I). 753 ; see also Hillman v. Afayhew, 24 W. R. 485); but the same Judge afterwards qualified his decision in another case, and held that it is not necessary that a set-off or counter-claim should have a sepafate heading, or be separated by a marked line from the defence, or that paragraphs containing the facts relied on should be .separately numbered (Lees v. Patterson, 26 W. R. 399, 7 Ch. D. 866). RULES OF PLEADING. 287 The necessity for strict compliance with Rule 10 of the English Bnles Orders may have l)een partly due to the principle of the Eng- 127 128. lish system in regard to admissions (see note to llule 148) and to Rule '20, which required the plaintiff to deal specilically in his reply with each allegation in the counter-claim of which he did not admit the truth. The result under the English Act is, therefore, that though the statement of defence and counter-claim may be combined in the same document, they are quite distinct pleadings. The paragraphs of the document, may be numbered consecutively ; and the counter-claim need not be separated from the defence by any marked line or se\tii- rate heading ; but it is necessary that all the facts which the defend- ant relies upon by way of counter-claim should appear in that part of the document which in fact constitutes the counter-claim ; audit is not enough if the facts be found scattered through the defence and counter-claim. If the facts relied on by way of defence are also relied upon to support the counter-claim, they may be incorporated in the counter-claim by reference to the paragraph in which they are set forth in the defence {Birmiwjhnin E.sfatcs Co. v. Smith, 13 (^h. D, 506). The result under the Ontario Act would seem to be, that it is not necessary, by separate numl)erii3g of paragraphs,' headings, or other- wise, to distinguish the defence from the counter-claim. It should be sufficient if the facts on which the defen'oper, not lieing an allegation of facts. See 7" Ij '!'• .(our. 31-3. l^arlkulars. — Tiie defendant is entitled to have the plaintiffs case ]';ii-fi(Mil,irs pri'si'iited in an intelligible form (IhirLord v. J/o;)/;,38 L. T. 411); .and "I'l'lciulings. it' the cliargos arc not suHiciently explicit, particulars may be orde?'ed (s«! Anon \\ . N., 1875, 202, 220) ; or an amendment of the claim may bo applied for (Schomhnt'ij v. Zoi:hi;Ul, W. N., 1870, lOt) ; 2 Oharl, I'll. Ca. 'M\). In Koh/ren. !i »J i; ''<,i;v , i !i If nh H:. t i ' 290 ONTARIO JUDICATURE ACT, 1881. I Rule 128. order was made for delivery of particulars of acts relied on witliiu one month and confining tlie plaintiff's evidence t^ such acts ; and though in that case it was considered convenient to order i)arti(;u- lars, the decision shews clearly enough that the plaintiH's statenitiit of claim was not properly framed to enable her to go into eviut the material facts upon which the issues in the case will be raised niust be disclosed, (Ashley v. Taylor, 38 L. T. 44, ) such as, in an action for dissolution of a partnership in tlie practice of surgeons, occasions when the delendant conducted himself in such a way as to make it impossible for the plaiutitf to practice with him, (Lyoti v. Tweddell, 13 Ch. D. 375) ; and, in an action for wrongful dismissal, instances of misconduct relied on to justify tlie dismissal (Saunders v. Junes, 7 Ch. D. 435). In an action for goods sold and delivered, a counter-claim for damages for inferior (juality was set up. Particulars of the dam- ages claimed were ordered (Anon. \V. N., 187'", 220; see also notes to Rules 14 and 159). In an action for damages for injuries occasioned by negligent driving, particulars of negligence and damages were held proper (O'Meara v. Stone, W. N. 1884, 72 ; 28 Sol. Jour. 359). In an action for infringement of a patent the names of pensons alleged to have used the invention prior to the patent must be dis- closed (Birch v. Mather, 31 VV. R. 362 ; 52 L. J. Chy. 292). In an action of slander particulars may l)e ordered of to whom the slanderous words were spoken, or if sue' unknown, or the words were spoken to the plaintif of any person who was present and heard, or mig words spoken (Thornton v. C'ap.ituck, 9 l*r. R. ■ Cooper, 12 Q. B- D., 94); hut particulars as to n alleged to have been jjassing by when the slanderou.s wor used, and particulars as to the alleged dauuiges have been ( Wiwjard v. Cox, W. N. 1876, 106 ; 2 Charl. Ch. Ca. 33. See also Colonial [n.surance Cornoration v. Pru.iser, W. N. 1876, 55 ; 2 Charl. Ch. Ca. 35 ; Bestellv. Steward, W. N. 1875, 231 ; 1 Charl. Ch. Ca. 87). the lersoii 'icr IS were u< name lieard the Bradbury v. n'S of )K isons ^ were lefused m for liiiii- ■ISIl W'uiu naiiio IIk' ''','/ \'' ■ mis were lusud COPIES AND DELIVEKY OF E'ROCEEDINOS. Tlie practice in the Prf)bate Division in England is not to order particulars of undue influence charged {Loril SaHsbiiri/ v. NiKjent, {> p, |). 23) 1 ; or of allegations of a testator's unsoundness of mind [HnntcUtmn v. Barninijhnm, 53 L. J. I'ro. 16). In an action of seduction defendant was held not entitled to par- ticulars of times and places unless he made atHdnvit denying the seduction so as to shew that he did not know the nature of the charges brought against him, which otherwise would he deemed to he matters withm his own knowledge {Thompmn v. Birkley, 31 W. It. 230; 47 L. T. 700). An order striking out particulars complaine, KW.) For proceedings on the deat\ of a solicitor, to compel the appoint- ment of anotlier, see Di'an v. Lethbri. 512 ; Morton v. Miller, 8 C'h. D. 51() ; mil.iiinisv. O'ardwill, 25 \V.R.646, not following (JooXrv. JJey,\\' .S. 1876, 122) ;andnuistl)e shewn to have l)een served '''her in tliis way or personally, on nintion for iudgment whore the p'^' \' has not appeared (/i«r)v7< v. Mimijrk, >J Pr. 11. 191). After interlocutory judgment signed in an action tor tiniiquidated damages in "'et'ault of ajj^fearance, a notice of inijuny to assess damages was held to be sufficiently served by filing under the corresponding Irish Rule (O'Connor t. Htxjan, 10 L. 11. Ir. 202). 8. Every pleading in an action shall be delivered between parties, and shall be marked on the face widi the date of the day on which it was filed, and with the reference to the Division to which the action is assigned, the title of the action, the description of the pleading, and the name and plice of business of the solicitor and agent (if any) of the party filing the RULES OF PLKADING, 293 Bnles 132-134. 133 Ueliff riaiiiieil to lie stated siiecitieally. same, or the name and address of the party filing the same if he does not act by a soHcitor. (Comp. R. Sup. C, 1875, Order 19, R. 7.) Substantially the aame as the English Rule, except that under the latter, pleadings are to he tlelivered only, and need not be filed. Filing is necessary here under Rule 150. 9. Every statement of claim shall state specifically the relief which the plaintiff claims, either simply or in tiie alternative, and may also ask for general relief. And the same rule shall apply to any counter-claim made, or relief claimed by the defendant, in his state- ment of defence. If the plaintiff's claim be for dis- covery only, the statement of claim shall show it. (R. Sup. C, 1875, Order 19, R. 8.) Same an the English Rule. A claimant is not entitled to any relief unless it is specifically prayed for, or can be given under a prayer for general relief ; and if gei'.dral relief is not asked for, it will be considered that the party (Iocs not want it (Ifollowdi/ v. York, ^2^^ W. 11. (527). Wiiere general relief is claimed, a pleading will not be demurrable, if the facts stated in it show that the plaintilf is entitled to any relief ( Watson V. HdwkinK, '24 W. R. 881), unless the relief be foreign to the scope of the claim (GamjJmn v. Sharpc, (5 Out. App. 417 ; Ounn v. Trust dc Lijtin Co., 2 Unt. IVJ'.i). It is sufficient to set out in the statement of claim facts whicii entitle to relief and pray for any relief that the facts warrant {Plu-lps v. White, 7 li. W. Ir. 1(50). It does not follow because a plaintitf has asked for reformation of a document that a defendant is entitled to claim the same relief though he has not asked for it ( Wolfe v. Hikj/ks. 18 C. T, .1. 177). See as to asking two inconsistent kinds of relief Erans v. Davis, 27 W. it. "28"), referred to in note to Uule 178, p. 32;^, and Breslauer v. Barwkk, 24 W. U. 902. 134 10. Where the plaintiff s-'cks relief in respect ofi'istim-t several distinct claims or caust s of complaint founded I lefeuees' upon separate and distinct facts, they shall be stated, as far as may be, separately and distinctly. And the same rule shall apply where the defendant relies upon several distinct grounds of defence, set-off, or counter- claim founded upon separate and distinct facts. (R. Sup. C, 187s, Order 19, R. 9.) Same as the English Rule. Rule 115 enables the ])laintiff to unite in the same statement of claim several causes of action. The present Rule refpiires such a statameut of claim to keep the facts supporting one cause of action as far as may bo t.>gether, and distinct from the facts suppoi ting ».)othcr cause of action. It is not necessary, however, to distribute t : ''Ir 294 ONTARIO JUDICATURE ACT, 1881. Bnles 134-136- 135 Effect of document maybe stated. 136 Allegation of ntalice, ko.. Fraud. Malice. the various facts so aa to show which are intended to support anv particular prayer for relief {Watson v. Hawkins, 24 W. R. 884). The same rule applies to a counter-claim. 11. Where the contents of any document are material, it shall be sufficient in any pleading to state the effect thereof as briefly as possible, without setting out the whole or any part thereof unless the precise words of the document or any part thereof are material. (R. Sup. C. 1875, Order 19, R. 24.) Same as the English Rule. This does not dispense with the necessity of setting forth the precise defamatory words in an action of libel or slander (Harris v. Warre 4 0. P. D. 125 ; Dradlawjh v. The Queen, 3 Q. B. 13, 607 ; see also Davy V. Garrett, 7 Ch. D. 473). 12. Where it is material to allege malice, fraudulent intention, knowledge or other condition of the mind of any person, it shall be sufficient to allege the same as a fact, without setting out the circumstances from which the same is to be inferred. (R. Sup. C, 1875, Order 19, R. 25.) Same as the English Rule. Fraud should be distinctly charged as fraud {Davy v. Garrett, 7 Ch. D. at p. 489) ; and if "fraudulently," or words of similar im})ort are omitted, there must be allegations of fact whicli necessarily and perse amount to fraud {Byrm v. Mnzio, 8 L. R. Ir. 396, and see Rule 147) ; and the facts constituting the fraud should be stated, or no evidence in support will be received {Re Rica Gold Washing Co., II Ch. D. 36, 43, 47 ; R<;hjrare v. Hnrd, 25, Sol. Jour. 372 -^ Ark- wrUjht v. Newbold, ih., 338). A general allegation of fraud, however strong the words used, where there is no statement of the circumstances relied on as cnn- •tituting the allegeil fraud, is insutlicient even to amount to an aver- ment of fraud, of which any Court ouglit to take notice ( Wallinijfonl v. Mutual Society, 5 App. Ca., 685, 697, 701.) In Herring V. Bisclu>[f'scheiin, W. M., 1876, p. 77, the statement onds through fraudulent misrepre- sentations in the prosi»ectu.s of the company, and, on a motion to strike out parts of the statement of claim as prolix, it was lield sufficient to allege generally that the prospectus which was set out was fraudulent to the knowledge of the tlefendants without specify- ing the particulars and without going into either the motive wliich led to the issue of the prospectus, or the particulars of the fraudu- lent scheme of which the prospectus formed a part. It will be sufficient under this Rule, in an action for malicious prosecution, to allege that the proceedings were taken witlumt rea- sonable or probalde onuse, without setting forth the circumstances from which the same would be inferred {Aderis v, Ihriylei/, W. X., 1870, 56 ; 2 Charl. Ch. Ca. 43). RULES OF PLEADING. 2!»5 As to obtaining more specific allegations of or particulars of fraud ^xHm charged, see note to Rule 128, p 289. See Kaltenbach v. Lewis, SOW. 138.139 R. .3;)6 ; 45 L. T. 666, for allegations which were considered to amount to a charge of fraud. A statement of claim was held sufficient, which alleged that wh!'e Neshgence the plaintiflF was using an hotel, of whicli the defendant was a pro- prietor, as a guest for reward to the defendant, by the negligence of defendant the ceiling of the room in which the plaintiff tlien was fell upon and injured him i Sandys v. Florence, 47 L. J. C. P. 598). 137 13. Where ic is material to allege notice to any Aiiegati.mof person of any fact, matter or thing, it shall be sufficient " "^""^' to allege such notice as a fact, unless the form or the precise terms of such notice is material. (R. Sup. C, 1875, Order 19, R. 26.) Same as the English Rule. 138 14. Where any contract or any relation between imi'iie applies ( Titn^iKinit v. Fearon, 40 L. T. 54.3 ; see also Snujth v. Lt ■■.n/e, .S9 L. T. 579 ; Noad v. Murrow, 40 L. T. 100 ; and Form 4.3 in App. D.) Where an agreement to have any effect in law must be in writing, it is sufficient to allege that there was an agreement without alleging that it was in writing. That it was in writing is matter for evi- dence at the trial (Panroe v. fiirhanU, 50 L. J. CJhy. ,340) ; and it lies mton the party setting up the agreement to prove one sufficient in law at the trial (Priretl v. Hay, Mr, Dalton, 4 March, 1884). 130 15. Neither party need in any pleading allege any Facts i.re- matter of fact which the law presumes in his favour, ^.t'be "'^'^ or as to which the burden of proof lies upon the other "*''''''*• side, unless the same has first been specifically denied. ■ ' >■■„ ■'.-■!! :\::r l!:l vi.S itffii Wi ,;r.:;rt- P¥T 296 Bnlea 139-141. 140 Deniiil of iv- lirtseiitutivi; capacity. 141 Bare denial of (!iintr.u'l only denial of the making. ONTARIO JUDICATURE ACT, 1881. [E. (J. — Consideration for a bill of cxchanc^e where the plaintiff sues only on the bill, and not for the con- sideration as a substantive ground of claim]. (R. Sup. C. 1875. Order 19, H. 28). Same as the English liule. 16. If either party wishes to deny the right of any other party to claim as executor, or as trustee, or as assignee in insolvency, or in any representative or other alleged capacity, or the alleged constitution of any partnership firm, he shall deny the same specifi- cally [or the same will be taken to be admitted]. (See R. Sup. C. 1875, Order 19, R. 11). Tlio Knglish Rule does not contain the words in brackets ; otlier- wise tlie F^ules are the same. See notes to Rule 148. The rule was the same at law under Reg. ). The effect of this Rule is, to require the defendant who wishes to rely on the Statute of Frauds to plead the Statute specilically. Before this Act there was a difference in this respect between the practice at Law an4). In Clarke v. Callow, tiu//ra, the plaintiff liy anticipation of the defence of the Statute alleged facts lo show tliiit the contract though verbal was a binding one under the Stat' te, and thedufcndant.s traversed these facts merely, not setting u\) the Statute. It was held that defendant was not entitled to rely on the Statute. [n England it has been held that the facts which make the Statute api)ly should be stated, and the particular provisions relied upon should be pointed to. It is ^lot sufficient to merely make a L'ciieral statement of reliance on the Statute (Pallen v. Sueltis, 4(1 1>. T .3(53). The defence of the Statute cannot since the .Judicature Acts be raised bv demurrer {Catlinii v. Kiwj, o Oh. D. 600; Mori/nn v. Worthin'iiton, 38 L. T. 443; Tawle' v. Topliam, 37 L. T.' 308; Dnirkins v. Lord Penrlnpi, 4 App. Ca. .51 ; S/iardloir v, Cotterill, W. N., 1881, 2 ; Fntcher v. Fntcher, 2<> VV. K. 884, and see notes to Rule 147), But where the objection of the Statute has been once raised l)y demurrer and overruled, it may be afterwards insisted on at tlie hearing without being pleaded {Johnanson v. Bunltote, '2 Ch. 1). 1298). Rules 141-143. h *'■ ! 1 142 1 8. No plea or defence shall be pleaded in abate- ^/,'^'|I^;',\,i[J ment. (R. Sup. C, 1875, Order 19, R. 13.) Same as the English Rule. A plea in abatement was one which showed some ground for abating or (puvshing the writ, or the writ and declaration. Such pleas were generally based on the non-joinder of parties, or the jterson.al competency of the parties to sue or be sued. An instance of an ineffectual attempt to raise what amounted to a ydea in abate- ment, will be found in PreMon v. Latnoul, 1 Ex. I). 361. 'riiough the form of objecting by means of a plea in abatement to tlie non-joinder of a defendant, who ought to lie included in the action, is abolished, yet du application to have such pm-son included as a defendant ought to be granted or refused upon the same ])rinciples on which a plea in abatement would have succeeded or failed ; per Lord Cairns in [Kfiidal v. Haiiiillon, 4 App. Ca. 516). A defence stating that plaintiff is a married woman and her hus- l)and is a necessary party is in reality an informal plea in .abatement and is no defence (Ahoitloffv. Oppoikeimer, 30 VV. R. 4'J9). 19. No new assignment shall hereafter be necessary^;; ' or used. But everything which has heretofore been alleged by way of new assignment is hereafter to be introduced by amendment of the statement of claim. {See R. Sup. C, 1 8/ 5, Order 19, R. 14.) Same as the f^nglish Rule. 143 iit'w a«- IIUUl. ■ ♦ ■ !;- 11 It'i: ' il !i 1 1 ■'■ *2\)S ONTARIO JUDICATURE ACT, 1881. Bales 143, 144. ii 144 Defence to notion for recovery of laud Sometimes, owing to the generality of a declaration, the defendant was not sufficiently guided by it to the real cause of complaint, and was therefore led to apply his plea to a different matter from that which the plaintiff had in view ; for example, a plaintiff might have been twice assaulted by defendant ; one of these assaults may have been justifiable, as having l)een committed in self-defence, while the other might be without excuse. Supposing the plaintiff to suo in respect of the latter, the declaration from its general terms would not necessarily inform the defenda' t that it was the second assault, and the defendant might plead to the first, son as.vniU ilemcune. The plaintiff then had no course but by new assignment to declare that he brought his action, not for the first, but for the second assault (see Stephen on Pleading 187). Such an occurrence is not easily con- ceived under the present system, where the facts are stated, and not the legal result of facts only. Sliould it happen, however, the state- ment of claim may be amended. . This Kule is not to be construed as rendering an amendment of the statement of claim necessary in other cases than those in which a new assignment woidd have been necessary under the (dd pleivding at law. In other cases, if new matter is raised by defendant, the ])laintiff may either amend, or may reply by traverse, or confession or avoidance, or both (see Hall v. Eve, 4 Ch. D. 341, and Earp v. Ihnderson, 3 Ch. D. 254). 20. No defendant in an action for the recovery of land who is in possession by himself or his tenant need plead his title, unless his defence depends on an equitable estate or right, or he claims relief upon any equitable ground against any right or title asserted by the plaintiff. But.exccpv in the cases hereinbefore men- tioned, it shall be sufficient to state by way of defence that he is so in possession. And he may neverthe- less rely upon any ground of defence which he can prove, except as hereinbefore mentioned. (R. Sup. C. 187s, Order 19, R. 15 ; Comp. R, S. O., c.40, s. 87, c. 51, s. 14). Identical with the English Rule. This Rule only applies to a defendant. In an action '^f ejectment the statement of claim is as much sul)ject to the foregoing Rules as any other action, and the pliiintiff must therefore set forth the material facts upon which he relies to i)rove his title. The etFeci. of a deed is not a fact and a statement of claim was therefore held em- barrassing which merely alleged that by virtue of certain deeds, etc., plaintifl M'as entitled to jwssession of land and did not state the pur- port of the deeds or set out the jdaintiff 's jiedigree, or show the de- volution of title by which the land in (juestion became vested in the plaintiff (PhUippn v. Philipps, 4 Q. B. D. 127 ; 39 L. T. 329 and SoO ; Davis v. James, W. N. 1884, 44 ; 32 W. R. 40G). So also a state- ment of claim which simply alleged that the plaintiff had lieen wrongfully dispossessed of the land by the defendant was set aside for not stating the fac^^s which shewed the plaintiff's interest in the land (O'Connor v. O'Hara, 8 L. R. Ir. 249). In several cases under the Irish Jud. Act a defence in actions of ejectment for non-payment of rent has been set aside as embararass- 146 rifii of not j!uilty by sl.-itute. RULES OF PLEADING. 299 ing, where it in effect merely denied that defendant was tenant, with- Rulea out alleging anything as to the defendant's title, or saying that he 14A 145, was in possession (see Hildiije v. O'Fnrrell, 8 L. R. Ir. 158 ; Barnes V. Barnes, 8 L. R. Ir. 165 ; Bowlei/ v. Lafan, 10 L. H. Ir. 9). Where the plaintiff's case depended on the heirship of A., and that fact was stated simjdy, without showing how A. became heir, the pleading was held sutiicient, (Ei'i'hjn v. Evehjn, 42 L. T. 248 ; 28 W. R. 531). The defendant relying on an equitable title must, in his statement of No. 81. of Parliament, he shall insert in' the margin of the plea the words 'by statute,' togetlier with the year or years of the reign in Avhich the Act or Acts of Parliament upon which he relies for that purpose were passed, and also the chapter and section of each of such Acts, and shall specify wiiether such Acts are public or otherwise, other- wise such plea shall l)o taken not to have been pleaded by virtue of any Act of Parliament, an*, 6 H. & N. 388). The plea of " not guilty" by Statute puts in issue not only the defence whicli the Statute gives, but also all the defences which were admissible under the general issue at Common Law (/?o.s's v. cri/ton, 11 A. & K. G:n.) An efjuitable defence is not admissible under the genercal issue by Statute {liruwn v. Bluchvell, 35 U. C. q. B. 239). The Court will not in general with this plea allow other pleas (Ni'itk V. MfK,' iir.il', '2 Dowl. I*. C. 702 ; Fiiher v. Thames June. Jt'i/ Co., 5 Dowl. 1'. C. 773 ; U'lh-ini v. C/nnnif, 15 M. & \V. 435 ; Lpii(t/ntc v. Mmjuire, 1 Pr. R. 131; Dale V. Coon, 2 Pr. II. 160). In lldzelfitot V. Ch"lmnf<>nl Local Board, (not reported but cited, Charley 's.Jud. Act, 3rd ed. 503), an action for tiking gravel, ,Iessel, M. 11., gave leave to defendants to plead the defence of sale by and jiayment to the authorized agent of the plaintitl" in addition to not guilty. A plea of the general issue by Statute is not demurrable though no Statute is ai)plicable (Cairns v. Water CommisHionern of Ottawa,. 25 U. C. C. P. 551). 22. Admi.ssions arc, in all cases where it is practic- able, to be by reference to the numbers of the para- graphs in the pleadin;^ to which they relate, With such qualifications as may be necessary or proper for pro- tecting the interests of the party making such admis- sions: thus — "the defendant admits the allegations made in the first, second and third paragraphs of the plaintiffs claim." (S>:r, G. O. Chy., No.s.'i25, 151.) Not in the English Rules. See notes to Rule 148. See Rule 240 which requires each party to admit such of the ma- terial allegations contiiined in the pleading of the o|)posite party as are true. 23. Each party in any pleading, not being a petition or a writ of summons, must allei/>:i v. Crmoli'ji, 10 Ch. 1). ."^1, which was decided before the appeal in Dmvkiiiii V. Lonf J'ciir/ii/ii, 4 App. Ca. .")!). Hut where thi! Statute takes away the title, as in an action for recovery of land, itis clear tliat the defence may be raised 1)V dennirrer ( />(r/<'/.'//(s v. Lurtl Piiirluin OCh. D. .'}18; 4 Apj. Ca. ."/l, .IS, (it ; WillUw Eiui Hmrr, 50 I, . J. Chy. 4). In Damhinx v. Ijonl Pciir/ii/ii, Lord (-aiiiis said : " The analogy of tlu^ Statute of Frauds is not an analogy of any wei;:ht. The Statute of Krauds must l)e ])leaded, bciiause It never can be pie- dicated beforehand that a ilet'eiidatit wiio m:iy shelter himself undir the Statute of Frauds, desires to do so. ile may, if it be a (|Mcsti(in of an agreement, confi'ss the agreement, and then tin- Statute of Frauds, will be iiuiiiplicable. \Vitii regard also to the Statnt<.' of Limitations, as to peisonal actions the cause of action may remain, even although si.\ years liave |)ass<'d. It (Munot be jiredieated that the defendant will ajipeal to tiie Statute nl' Limitations for his pro- tection. Many people, or some people at all events, dn ui't do so, therefore you must wait to hear from the del« ndant wiietliei' he de- sires to avail himself of the defence of the Statute of liimitations or not. But with regard to real projurty it is a (picstion of tith'. The jtlaintitt" has to state his title, the title upon which he means to i-c|y ; and the Statute of Limitations with regai'd to real pro[ierty says, that when the time hase.\i)ired within whii'li an entry or claim must he made to real property, the title shall be extinguished and pass away from him who might have hail it, to the person who otherwise has the title by possession, or in whatever other way he ma} have it. " (4 App. ( 'a. 58-r><)). See also notes to Rule 14 L Rules 14/, 148. 148 24. Save as above otherwise provided, the silence •'^i'' '"■'^ <'f of a pleadmg as to any allegation contained in the aamusiou. previous pleading of the opposite party is not to be construed into an implied admission of the truth of f M will i''.). The English Rules under the Judicature Acts, in regard to admis- sions differ from the above (see Order 19, Rules 17, 20, 22), the effect of which is that, so far as regards statements of claim and defence and counter-claim, and as regards parties who are not infants or lunatics, the want of a specific denial of a fact will operate as an admission, and will entitle the party whose pleading is thus admitted to move for judgment umler Rule .S22 ; and thus upon a technical construction of pleading, final julgment may be signed (see Thorpe v. lloldsworth, 3 Ch. \). (W7, and liutt>r v. Tregent, 12 Ch. 1). TSb) ; and the merits might sometimes not be reached (see TUdenh'H v. Harper, 7 Ch. 1). 403 reversed however in appeal, 10 Ch. I J. 393 ; Lumsden v. Winter, 8 Q B. 1). ().')() ; Caruli v. Hirst, W. N. 1883, 115; Thornton V. Church, 10 L. 11. Ir. 378; Williamson v. London, d-c, 27 W. R. 724. The rule of the Court of Chancery adoi)ted in the present Rule has not been found in practice to render the arriving at an issue a difficult thing, or to uudidy increase evidence. By Rule 240 (which is founded upon Chancery O. O. 124) each party is to admit audi allegations in the pleadings of the opposite party as are true ; and if he does not do so, Rule 163 gives to the Court or Judge power to make a proper order with respect to any extra costs occasioned by the failure to admit. 25. No pleading, not being a petition or summons, shall, except by way of amendment, raise any new ground of claim or contain any allegation of fact in- consistent with the previous pleadings of the party pleading the .same. (R. Sup. C, 1875, Order 19, R. 19.) This is the same as the English Rule, and the former practice was substantially the same. A second pleading may add a f. -'«•-'. 153 All.'!- (lelivBiy I del'uiKx. 3. Where any ground of defence arises after tlu: defendant has dehvered his statement of defencr (d), he may within eii;ht days after such f the Court or u Judge is reiiuircd under the Kngliali liule. The same lil)erty is here given to a plaintirt' after the time foi' ik'Iivering a reply has expired as is l»y the preceding Rule given toji defendant after tlie delivery of his defence. 156 1;. In any such case the amendment of the pleadinp •^""•"''"!'''' J / _ r CI till /inniifie. filed may be made without an order, on filinj^ a pru'cipi and an affidavit that the matter of the amendment arose within eight days, next before the day of the making of such amendment. {Sec R. S. O. c. 50, s. 107.) The affidavit here recjuired is similar to that re;{.) The atlidavit .should set fortii tlic new grounds of de- fence or reply, and explain any delay (Haynes' L'h. I'ract. 88). 167 7. Where any defendant, in his statement of defence, Piiiiinii [whether by way of amendment or otherwise] alleges rnnV'ssi'm''! any ground of defence which has arisen after the com- '^*^""''"' mencemcnt of the action, the plaintiff may deliver a cf)nfession of such defence; which confession may be in the Form No. 17 in Appendi.K (H) hereto, with sucii variations as circumstances may require ; and he ma\- thereupon sign judgment for his costs up to the time of the pleading of such defence unless the Court or a Judge shall, either before or after the delivery of such confession, otherwise order. (Comp. R. Sup. C, 1875, Order 20, R. 3.) i'his is substantially the same as the iMiglish Rule. Rules 22 and 2.1 f»f Iteg. (icn. T. T. 18.")(», wtjre to the same effect, but were not ' applicvldo whuri! a pleii raising such a defence was pleaded by one or more only of several defendants. 20 1- ;i '■''!'■ ^U V. :i| ".>i- ' , ?. r » 306 oNTAiuo juDicATinu: act, 1881. Rule 157. rayineiit of nioiiuy into (Jourt is not a ''defence" v, itbin tlio meaning of this llulo (Callaiiihr v. Hiiwkinx, 2 ('. P. I). 592) I'n(l(!i-the llnles of T. T. 18i>(), tliough a ilefemlant |)lea(le(l with sncli a plea otlier defences arising before action, tlie jtlaintitf was nevci - tlieless entitletl to confess the plea and have liis costs, the other plciis falling to the ground. And tlie present Itules seem to have tin same effect (Fnnti-r v. b'nnxjn', 1 (}. H. J) (Uiii). Thero ia no difl'ii- ence in this resjiect l)et\veen a jdea of Hankruptey and any other plea [Fii'iter V. it'll itii/i'c, foiiirti). V [»lea that defendant was an adjinii- oated hankrnjtt upon an act of I5ankruj»tcy which occurred after tlic service of the writ, was held to lie " a grnund of defence which has arisen after the commence-ment of tlie action ; "' and the plaintiff was heltl entitled to confess and sign judgment for his costs under tins Ihile i^J/iiiinploii V. Fnniilji, 7 <'h. D. '^~'^). Sucli a confession is a determination of the matti-rs in litigatidii, and precludiis a second action for the some cause (Ni'tniitititii v. A'/v/, L. R. oC. P. ()(»7 ; <) ('. r. ]S(»). For form of confession see App. (!>) Xo. 17 ; and of judgment for cr)sts, App. (I) No. 1(5."). These ilules apply to a counter-clnim in the nature of a pt^euniary sct-oti' arising after action Wrougiit [E//i-i v. Mnii.om, '^7^ !,. T. .")S.")), and the tendency of the later decisions seems to lie that these Uidcs are api>licahle to counter-claims g^'uerallv {nw. licililull w Mdi/lnni/, 17 Ch. 1>. 174, and note to Itule 127 p. 2'!SI-2S2). Where a judge refused to F CL.vlM. A statement of claim is necessary wlu'ir the defendant has not dispensed witli it at thi^ time of appearance (.sec form 77 in .yj.pru- dix and Uule l.'iS ; and even where no appearance is entered, if the case is one in which the idaintill' can only ohtain judgment by motion for judgi"-nt (see Million v. Mrtnilfr. 4() I.. .1. Chy. .'),S4 ; Uniitn- v. ]yiir,;rl-si,ii, 1» I'r. U. .SO.")). No statement of claim is necessary where (I) the defendant does not reiiuiri! one; or (2) the < 'ourt dispen.si's with it, [Lhnrllmi v. Uh-kh' l.S ("h. 1). ItiO) ; or (.S> the defendant has not ajipeared, and the iudgiiient can be obtained by default of appearance (see 'fides 7"» to 7i>j ; •>'■ (-^) " ilijfi-'ii'l"'"*' '""•■^ '""' '"^'^'" '■'■^*" ^'^'^ ^^ defend und(M- Rule 80. ' So also apparently, where he hasckblained leave to defend, and no or.ler is made as to delivery of pleiwlings [Alhiim v. '/''////"/•, W N., 1H7(), II ; M'tnjitli' I'i'-r , that his claim ia that which .appears l)y tlie imlorsi'ineiit f^xile 158. upiiii tiie writ. NVhuru such notice will not siifHctj, tiie statement of cliini will l)e frameil in acconla'iee with the models given in Ai>peii- ,li\ I), No. H8, <'! .'<'''/. The ])laintiH' may deliver a statement, even thoui^h the defendant li;i- stated in his appearance tliat he does not reipiire on(f ( UuU' l.")S r ; siiliject to the power of tlie Court ( llule I.'tS . ."):{|. The relief desired must hi; askeil for (Kule l.'Wi. The place where the ])laintitr pi'o|Mi>es to try the action is to lie men- tieiied in tlie statement of eiiiini ; and the plaiiitill' has an ahMiluio light to have the trial at any [ilai'e !■ names in every kind of action, exiipt ejectment (liule"jr)4i ; unless ))reponderance of eonveiiieiire IS 'greatly in favour of smne other pi.iee, in- which case the pl.ice nf trial will he chanm'd (see /'/iiiii v. Xuriinnildii /run, &'"., Cn. W. ^. iSTt), lO.'i; \Vi>n,/v. K.iii. \V. N. |S7it, -'0(» ; ir.(//'iii, i';» .'. L. .1. I.S(»). This, ill ellect. was the |n'actice formerly in * '!iai ■ ceiy [Xixtil V. aVoikI, () I'r. K. 4tS) ; hut as to the weight which is to he given to the cause of action a.s an element in dtter:'> niiig the |il,i<'e which is most convenient for the trial, the opii..,)ns of th ■ hiilges are eontlicting. .See note to Itule 'J.")4. The signature of ( 'oiiimd. though iiiinecessarv (Rule I'-'S), has hetn said to he desir.ahle i/htrki// v. Jitm'fi, \V. .\. lJS7t>, 17 ; ."{:{ L. T. 777i. liid(U's(!m(;nts should he made of the matters mentioned in |{uli i;VJ. For the time fiU" delivery, see Rules l.'iS and 4."i'.( ; and the mude of delivery, Rules l.'tl and I.TJ. A copy should he tiled as well as served (Rule 150). I { I. The delivery of .statements of claim .shall bo a-i^nilated as follcjws : — {(i) If the defendant shall not .state that he does not rcciuire the delivery of a .statement of claim, the plain- 158 Tiiiif wliliiu vvliich t" lie ili'livervil t . .•'-•I' >)(■' i & ' ii I ■fid ' M t ! 308 ONTARIO JUDICATURE ACT, 1881. Enle 158. tiff shall, utiless otherwise ordered by the Court or a Judge, deliver it within three months from the time of the defendant's entering his appearance. (Comp. R. Sup. C, 1875, Order 21, R. i (a) ; Order 8, R. 6 (n) auL; ; Order 15, R. 2, ante ; R. S. O., c. 50, s. 93.) Taken from the English Rule, except that the latter names six weeks instead of three months. As to obtaining further time ^or delivery, see Hujginbottoni v Ai/iisle;/, 3 Ch. D. 288). An order extending the time will not be made ex parte, ( Wiylc v Harris, 9 Pr K 276). A statement of claim filed after the time for doing so has expired without leave, lijvs been held under the Irish Act to be not irregu- lar, unless the defendant has served a notice of motion to dismiss ((yConiiell V. O'Connell and Snmpsi>n v. 0'J)(»niell, 6 L 11. Ir. 470, 471) ; but in Ontario it has been decided that a statement so filed is irregular, and may be struck out unless circumstances are shewn ju8tifyint.f an extension of time {Clarke v. McEwing, 9 Pr. R. 'J See liule I.'jS (c). It cannot be treated as a nullity (Gill v Wvoiihu W. N. 1884, 20 ; 82 \V. R. .S98). See also Gran's v. Tn-ry, in liote to llule 173, and note to Rule IGO. A guardian ad litem of an infant and a marrieil woman may Maive delivery of a statement of claim. See Knatchlnill v. Fuwle, W. N 1870, 2; Fri/rrv. m.eman, W. N. 1870, 3. The three months are calendar months (Rule 454) ; and in comput- ing tlicui long vacation is not reckoned (Rule 4(51). For the mude of lU'livcry, see Ruka i31 and 1 32. See also notes to Rules 160 and 173. (b) If the defendant shall state that he docs not require the deliver}' of a statement of claim, the plain- tiff shall file a copy of the summons with all indorse- ments thereon within the same time. Not in the Knglish lluio, as in Kngland a copy of the writ and in- dorsement is tiled wiien tlio writ is issued. Tlie defendant is in his memorandum of appearance to state whether '.w leiniin.s tjie delivery of a statement of claim (see iluk f)5 and form in Appeiidi.v .No. 77). ((■) The plaintiff nia\-, if he think fit, deliver a state- ment of claim, with the writ of summons, or notice in lieu of writ of summons, or at an\- time afterwartls, either before or after appearance, and although the defendant may have ai^ocanxl and stated tliat he docs not require the delivery of a statement of claim ; Pro- vided that in no ca.se where a defendant has appeared shall a statement be delivered more than three months after the appearance has been entered, unless otlur- wise ordered by the Court or a Judge. (Comp. R. Sup. C, 1875, Order 21, R. i [6].) M STATEMENT OF CLAIM. 309 If the plaintiff (leliv.rs a statement of claim though not required Rulea to, the defendant must deliver a defence, but the plaintiff may be 153 jgg^ punished by })eing maile to i)ay costs if his action is improper (see next clause of this Rule). An applioation to enlarge the time will, in general, be by motion in Chambers. Or the time may be enlarged by consent (I!ule458). Tlie consent should be in writ 15;, and no order is then necessary (Aiiihroisti \. Ecebjn, 11 Ch. D. 759). Where by mistake of a clerk of the plaintiff's solicitor, the state- ment of claim was served too latn by two tlays, furtlier time was given. 'I'he Court thought it immaterial that plaintiff liad delayed bringing the action till shortly before the .Statute of Limitations would have barred the claim [CanndUm Oil Work^^ v. Haii, .S8 L. T. .-)49 ; W. N. 1878, 1(»7). (d ) Where a plaintiff tlelivers a .statement of claim without beinf^ required to do so, the Court or a Judge may make .such order as to the costii occasioned thereby as shall seem just, if it appears that the delivery of a statement of claim was unnecessary gr improper. (R. Sup. C. 1.S75, Order 21, R. i [c\) ^ ime as the Pjuglish Rule. ' Jhe taxing officer shall have the same duty if no order is made by the Court or a Judge. {Sen R. Sup. C.Aug. [_', 1875, R. 18). The I'ngliah Rule referred to contains a like provision. When the jtlaintiffs in a foreclosure action delivered a statement of chiim with tlio writ and t: ; defendants dii! not a])])ear, tlio coats of the statement of claim were disallowed, it being heM tiiat tlie in- dorsement on the writ aliould shew the lands in ([uestion and otlier matters necessarv to enal)le ;' judgment of forcolo.sure to be drawn up (Canada Lan'did Credtl C«. v. ('allaijhan,'2i\ Oct. 1881. Hoyd. C). 150. 2. Where the writ is specially indorsed, and the N"ti' <■ '" defendant has not dispensed with a statement of claim, 1,'1'eiit'. '^^'^^^ it shall be sufficient for the plaintiff to [file a copy of tlie writ with a copy of the si)ccial iu'lorscinent there- on if not filed already, and] deliver as his statement of claim a notice to the effect that his claim is that which appears by the indorsement upon the writ, un- l(.'ss the Court or a Judge shall order him to deliver a further statement. (a) Such notice ma\- be either written or printed, T partly written and partly printed, and may be in the Form No. i() in Appendi.x ^B^ hereto, and shaP be marked on the face in the same manner as is required in the case of an ordinary statement of claim. 1 41 .r !! I t ;..'i*. If. I ' H 310 ONTAKIO JUDICATURE ACT, 1881. Rule 159- (h) When the plaintiff is ordered to deliver suci) further statement it sliall be delivered within siuli time as by sueh order shall be directed ; and if no time be so limited then within the time prescribed by Rule I of this Order. (R. Sup. C, iiisrL'vi(iiia liiini,' nf sufii ('(ipv optional, instead of l>eini,' imperative as in lOngland. (St i I In 1 A "M|ie(iallv imloised ' writ wonM seem to he oik; indorstil \vithin till' meaning of iJnIe 14. Where a writ claims speeilie sums ami also damages, ami ;in injunction, it is not speeially indorse! witiiin the nK!ai.ing of tiiis Itule ( YKitiitnn v. S)ti>u\ '2H \V. 1{. 'u■^). A writ spijeially imlorsed, and a notice given under this i!uK', wore, in the t'arlier decisions on tlie Act, indd to togetlier constitute a [(leading Mhi(;h might he dennured to {I'ohrrlxnn v. Iltrwanl, .'< ( '. I*. I>. '-'SO), hut it is now decided tliat a dennirrer is not jnojier and that tiie defendjinfs course is to apjily under the present liide fui- delivery of a further statement of claim (/''(f*/v«,s v. C/iurlloii. 10 (,> B. 1) r>M)). In money cases the plaintiff ought to indorse his writ in s'lcii a way that tlie notice may i(e given under tliis [{ule, and with the view that (he indorsement may furnish all necessary information to the defendant in regard to the ilaim (.see Anon \N'..N., ISTo. 'JO'J. per iiUsh, .1.) NN'liere tiie indorsement is not sutliciently explicit, [tarticulais may he ordered, and furtln^* time to put in a defence giv(Mi if neoessarv (see C„tf lilt V // DIISIIKIII. \\ 187( 1 1), ■-". •J < "harl. ( 'ii. Ca. lUi); hut tlie proper form of aiipiication in such case would seem to he for a furthei' statonunt of claim {Srliomln n/ V. Znvhrlli, W. N., if>7(), KXi; I Charl. Cii. (a. :W). I'articulai's of lump sums, for which credit was giv n, were ordered in (io'hiiu V. f'or.'(. If none is then delivered he neeil not, i)iit may, ii he chooses, deliver a statement of defence (Utile Uil i. Mut a state ment of defence is necessary in all cases where tiie plaintiti delivers a statement of elaiin (IJule UJO) ; anl) and l()'2). The facts relating to the itefence must l>e stated in the same manner .as is proviiled in n-spect of other jilcailings (Uules I'iS, 135 to 140). All facts not in the statement of claim, ou which the STATEMENT OF DEFENCE. :ni (1( ftiixliviit means to rely sliould he Ret out (Jiule 147). Where tlis- RuI,, iqq, tiiut firouiuis of (lefeiieo :ire relied on, foiunled on separate and dia- tiiict faeta, siieh faets .sIkjuM lie stated separately and di;,linetly (jiule I.S4). Thouj^li a defendant is not taken to have admitted wliit he does not deny (see llule 148), lie siiould nevertheless make all proper ailniissions (Kule -40); otlierwise lie may have to hear the (■ip>ts rendered neeessary hy the failure to jidniit (Ihde Hi.S). The rliaracter in whieh the jjlaintitl' sues (Uule 140), and tin? legality or Hutlioiency of a eontiaet in j)oint of law, if intended to he disjiuted, must he expressly traverseil ( l!ule 141). In an aetion for the re- ciivery of land the defendant need only state that lie is in possession {\U\\v 144), unless he has some e. ()!."). was ipiestioned). A de- fendant may ))lea). As to the form of a counter-claim see note to iiule I'J". ill lea I. Where a st .tctncnt of claim i.s delivered to a de-J^|"'''^ fcndant he shall deliver his defence within eii^ht daysmnsi he. from the deliver)' of the statement of claim, or from ^ "^'"*''' tlu' time limited for appearance, whichever shall be last, unless such time is extended l)y the Court or a Judj^e. (e'onip. R. Sup. C, 1875, Order .?2, R. i ; R. S. O. c. 50, ss. 100, loi ; c. 31, s. 3 ; G. O. Chy. No.s. 88, 89, 408, 620; Eng. C. L. r. Act of 1S5J, s. 63.) Same as the Knglish JJule. The eight ilays will he counted from the time for appearance, where a statement of claim has heen de- livered with the writ or hefore ajipearance (itule 158 c). l.oug vacation is not reckoned in the I'ight ilays (Ruh^ 4(!1). The time nuiy lie extended hy con.sent (Itule 4.")0). which should lie ill writing [ A luhroinf v. Krili/n, 1 1 ('h. I). 7")0l. No order is thea iu'<-essary ; hut if consent cannot he ohtained, the Courts will ]>ro- lialily l)e liheral in granting further time. 'I"he motion foi- further time is made in Chamhers on notice ( Wiijlr v. Harrin, l*r. I! l!7l)). .\ defence put in, withotit leave, after the proper time hut heforo iiiiigment,, cannot he treated as a liullitv i(); :VJ W, K. urn ; see also notes to Uules l.-)8 ain'l I7.S) ; hut wliere it is delivered after service of a notice of juotion for judgment tiy default of pleading, the motion for judgment may nevertheless in ill ..1 312 Rnles 160-163. 161 Where no .statbiiieut claim. ONTARIO Ji^DieATURR ACT, 1881. Ite i»n)cee(led with, aiitl it is incuinhont upon the defendant to niovi! for leave to deliver the defence and stay the motion for judgment {Pottti V. iJciuie, 11 L. R. Jr. 3%). Where the mode of trial hjul been appointed and affidavits had been lilcd for the trial, a defence so delivered was struck out on motion of the plaintiff, in Wi/mtii v. Nohk, 11 L. 1{. Ir. -}U\. By the practice in Thancery, as a general rule the coats of a first application f<»r further time were coats in the cause, but those nf subscfpient applications were ordered to be paid by the applicant (Dan. Pr. (543, 5th ed.). Wliere the time is extended a demurrer may be Hied within the extended time (IIoi/(/es v. //ix/i/rs, '2 Ch. D. 112*. Formi rly, a defendant who obtained further time to answer was not at liberty to demur. (See note to llule 11)1). .See also note to Rule 158 and 173. 2. A clcfendant .vho lias appeared in an action and °' stated that he docs not require the delivery of a state- ment of claim and to whom a statement of claim is not delivered, may deliver, a defence at any time with- in ei{^ht days after his appearance, unlei.s such time is extended by the Court or a Judt,^e. (Comp R. Sup. C. 1875, Order 22, R, 2.) {Ste Order 1 5, R. 2 Order 25.) Same as the English Rule. In Ilitrrixon v. Surrt'i/ MiiHonic Hall Co., an). It has been reaacuiably suggesteil by Sir W. 'P. Charley (.5 id. .\ct 3rded., p .523) that the present Mule applies only when a w--t has been s(tt'ci.ally imlorsed anu the defendant has di.-i- pensed with a statement of claim, ntid that in other cases Rule 1(50 ajtplies. See ii-»te U) Rule SO. p. 223. 4. Where the Court or a judi^e shall be of opinion that any allegations of fact denied or not admitted by STATEMENT OF DEFENCE. :n3 n either or any party ou^ht to have been admitted, the Rules Court may make such order as shall be just with ^^3, 164. respect to any extra costs occasioned by their having been denied or not admitted. (Comp. R. Sup. C, 1S75, Order 23, R. 4 ; G. O. Chy., Nos. 124, 125, i(So, 234-) I'or the words "eitlicr or any party," thu Engliali Rule has "the Jffoncje ;" (itherwisc; the Kuks art! the same (see Rules 148 and 240). Every party is suhjeetto costs if he fails to admit allegations of fact which the (Vmrt or Jiitlge is of opinion that he ought to have admitted. '■'.'4 164 Ollll- in ;. Where a defendant bv his defence sets up any ^ ''"■•■' , . , . , . • . , , .' -•'-til •clan., counter-claim which raises questions between himseliairo.ts tiiird and the plaintiff along with any other person or per- *""*'"'■ sons, he shall add to the title of his defence a further title similar to the title in a statement of claim, setting forth the names of all the ])ersons who, if such counter-claim were to be enforce 1 by cross-action, would be defendants to such cross-action, and shall deliver his defence to such of them as arc parties to the action within the period within which he is required to deliver it to the plaintiff. (R. Sup. C, 1875, Order 22, R. 5.) Same as the Knglish l{ule. For the practice where ])er90ua not already parties to the action art maile defendants to a counter-claim, see Rule l'J7. Where defendant in an action on a note shewed that the note had been transfcrretl to the plaintiffs to secure a tleht of the ]>ayee, one T. N'.. to them, which deht had heen satisfied since the commence- iiuiit of th a(;tion, and the defendant swore that ii»; had .■v urtod (Iffciicc on the merits atrainst T. \. it was held thiit this Ruk had III) api>lication. I)ut that the plaintift's admitting these facta were entitled to theii' costs under itule ir>7. and the cause of action having devoh'ed upon '!'. \., he was entitled to continue it hy tak- ini; out an order under Rule ',\Hii (Oxfiawu ('iili'mcf Co. v. Xuh', 18 (J. k .1. (;0). A thinl person made a defendant to a counter-claim is not entitled to enter an a])pearance until he has heen served with the Cf)unter- claim ; and if he .appears without having heen .so served, the aj)pear- aiice may he discharged on motion hy the plaintiti' in the counter- claim (Fra-tcr v. Voojifr, '1'^ Ch. D. 08;")). Where, in an action for tlie price cf iron, the defendant set up a counter-claim for a deduction, which he had had to allow a pur- chaser, owing to tlie inferiority of the (piality of the iron, it was held unnecessary to adSanio as the Kiiglish lliile. For tlu) Ivules in respect to service of writs of summons, ace Nos. li^ and 4!). 7. Any person not a defendant to the action, who is served with a defence and counter-claim as afore- said, must a))[)ear thereto as if he had been served with a writ of summons to appear in an action. (R. Sup. C. 1.S75, Order 22, R. y.) Same as tlie Knglish Rule. See ftules HO, il sfi/., as to appearance. 8. An\- person named in a defence as a party to a counter-claim thereby made may deliver a reply with- in the time within which he miL^ht deliver a defence if it were a statement of claim. (R. Sup. C 1H75, Order 22, R. 8.; Same as the Knglish Rule. The time for delivery of reply will he eight d.iys from the delivery of llie defence containing the counter-claim (see liule Kid). A third party is limited to a " reply ;" he may not counter-claim against a defeiulant who brouglit him in (Street v. C/oirr, '2 (^. li. I). 498). 9. Where a defendant by his statement of defence sets up a counter claim, if the plaintiff, or any other person named in manner aforesaid as party to such counter-claim, contends that the claim thereby raised ought not to be disposed of by way of counter-claim, but in an independent action, he may at any time within three weeks from the delivery of such state- ment of defence, apply to the Court or Judge for an order that such counter-claim may be excluded ; and the Court or a Judge may, on the hearing of such application, make such order as shall be just. (Comp. R. Sup. C, 1875, Order 22, R. 9.) STATKMKNT OF r)i:FKNCR. Instead of "within tlirce wi-eks from the delivery of such st.itc- niiiit of defence." tlie l^nglisli lUiIe htts "before reply ;" otherwise till' Uules are the same. An a|)i>lication under this Rule may, in England, lie made in Court (sec Ih'iir V. Swiinlir. 4 Ch. I>. 47ut, as a geiitTal thing, shoiUd !),• made in Chandlers (sfu Xni/lor v. Furrer, '-'(5 \V. K.. .S()i>). It is to he made within three weeks t'roin the delivery of the statement of defence ; ifiiirre, whether it may lie made after a rejily is delivered, or whether a reply is not a waiver of the right to apply. For the principles iipdn which the ( 'ourts act in excluding counter- ilaiins, see notes to I'ule i'J7. p 17(1 (see also Xm/hir v. Furnir, .^iipni ; Fiiihrh-k- V. Sroll. '1 V\\. h. 7.'{(> ; Dnir v. Sironfir, 4 Ch. I). 47t'i ; Ihirnt v. (•'iinili'r, (i Ch. D. 74S ; Itimi'niiiliniti E-()(»; liotlorhiim v. /'/•;..«./. -JS \V. It. 'J77l. The decision of a Judge under this Kule, if apjiealed from, will ranlv he interfered with ( //((.'/(/o//." v. Tu-mt. 10 Ch. I). '^'^\\). 315 Rules 168. 169. 169 10 Where in anv action a set-off or counter-claim •'•"''m.nt liilaiire is c.^tabli.shed a.s a defence a;^r;iin.st tiie plaintiff. s claims the Court may, if the balance is in fa\-or of the defen-' dant, ^ive iud<,aiient for the defendant for .such bahmce, (M' may v)ther\vi.sc adjudge to the defendant such relief as he may be entitled to upon the merit.s of the case. (R. Sup. C. 1875, Order 23. R. lo.) Same as the Knglish I'ule. "The balance in favor of the defendant ;" these words mean the hal.uice upon the hearing of the action [J'ol/'' v. .UcLarcn, '^ Ch. 1). 10t»). Judgment uj»on the counter-claim may give the di'fendant complete relief as in an independent action, by ordering payMunt of any halance found in his favor {S(a/)li;s v Voiiii;/, '2 Kx. D. .S24) ; or hy awarding to him such other relief as he may be entitled to In Jfiirrari-n v. h'i'fhil, 'JO \V. U. 714, a defendant, who had imrcliascd tlic entirety of a leasehold, resisted a claim against him for speciiic |Kiforniance of a contract for sale of a moiety o' the leasehohl ; he was also nuirtgagee, and in the latter capacity, as .ilternative relief hy way of counter-claim, he called upon the plaintitFto redeem him, and it was /nlil that he was so entitled, with his costs as of a fore- closure suit. .\s to costs, M'herc a balance is found in favor of the defendant, and in other cases of claims and counter-claims tried together, see Stajilf.iv. Voini;/, supnt ; Ji/ab' v. Aj)i)lti/iir(t, 'A Ex. I), lit,") ; Pofffr V. Chamhi 1:1, 4 C. I*. D. (H) and 4r)7 ; ChiUjii hlw Siiltjiinrk. ih., 4.")J) ; liiiiii,'.^ V. /iruinin/, (5 Q. H. I). 197, t)!H, and notes to Rule 4'28. Where the iJaintitl' claimed £V.) I'Js. and defendants admitted the claim .and c(mntcr-claimed for C7"), and jiulgment was given for the plaintiir in his claim and for defendant for t'4() on his counter-claim, it was ordered that the plaintitl' shNTINL'AN(!i;. I. The plaintiff may, at any time before receipt of the tlefendant's statement of tiefence, or after the re- ceipt thereof before taking any other i)roceecliniL,r in the action (.save any interlocutory apjjhcation), b\' notice in writing, [fileil and served,] wholly discontinue his action or withdraw any part or parts of his ailej^cd cause of complaint ; antl thereupon he sliall pay the defendant's costs of the .ution, or if the action be- not wholly discontinued, the defendant's costs oc- casioned by the matter so withdrawn. (ii) Such costs shall be ta.xed, and such discontinu- ance or withdrawal, as the case may be, shall not be a defence to any subsecjuent action. Suhst.inti.illy tlin siiiin,' ,ih the Kiiglisli I Ink-, except the words in bracki'ts, which jire new. Uiuler the former Chaiu'ery praetice, the phiintiir iiiiglit dismiss liis Mil against the ilet'iiidaiit at any time hefore decree, oil /irii-ri/if. The dismissal was with eosts ; l»ut where no answer had been lileil, no eohts had l»eiii incurred, unless perha])s instruetions to answer (see /iii'M-fv. Sfnir/iitH, H I'r. K. 'Jll). « >n special applicatiiin dis- missal might l)e without costs ; hut after decree the hill could only be dismissed by cunseiit. In the ('(imnmn haw Courts, the plaiutiif might di,laintitt' at liberty to comiucnic another action foi' the same cause. Discontinuance was notefreetuul until payment of costs (/•''/;////;//'-// v. Pntuthinni, I Dowl. I'. ( '. bVJ); and if the costs were not paid, the defendant's only remedy was to sigti judgment of iudi /mi.s. The present Kule besides allo\\ing the plaintitf as formerly to dis- continue the whole a<;tiou, authorizes the withdrawal of a part of his eaus(? of complaint ; formerly, the discontinuance could oidy lie of the whole action (liiiiton v. Pii/k-hKjhonic, 10 M. & W. S). It has been held under the Irish Ju. 4G4, overruling VavuKxiur v. Knipp, IflCh. I). 474) ; but can ajipcal will be thereby discontinued (Cuin/hidre v. Ltwin, I H ( 'h. I). 4()1>)- Where, however, a jjlaintifi' who had given an undertaking as to damages iliscontinued his action, it was ii. 704) ; and where a case had bem referred to arbitration, ami the arbitrator found in favor of the defendant as to all but a small part, the leave to discontinue was refused (S/nli/sr/iin'u/t v. Witlhml, 4 Q. li. I). 217) Sec also Atdlln-wi v. Aiidohiis, 4!) L. .1. I'liy. 80. The wortls, "shall pay" give tlie defendant an absolute right to all costs of the action, and thev are not in the discretion of the .hidge under Kule 4-.'8 (see Thr'Sf. (Hiit\ '2 I'. I). ll.S). \u liollun V. liitltoii, 'A rh. I>. •J70, these words were held to amount to a jui.g- mcnt, upon which execution might issue without further order (sei- n(jtc to Rule I7'2). Costs of work in ])rcjiaring, brieling, or otherwise relating in iitlidavits, &c., j)roperly and not pii'niatuiely done, ilown to the time of dist;ontinuance. are ta.\able (Ihirriwit v. Lttitiitr, 10 (.'li. 1». "..')!»). An ordir of a Master which stayed an action on payment of costs, was v.iricd l)y .substituting tlie word '• disciintjiiuecl" tor '"stayi'd." to |iiev«'nt tile possibility of the action being again iiroci'cded with [Aiiun. W. N. 1870, -U) "; •_' Cliarl. (.'h. ( 'a :if>}. If the statement of tlefcnee sets up matters arising after the issiic of the writ, the truth of which the plaintilf cannot deny, and which utioid a good answer in law, tlie iilaintitl's proper couise will lie, not to discontinue, but to cntt.'r a I'onfes.sion of the defence under liulc ir)7. {b) Save as in thi.s Order otherwi.sc provided, it shall not be coni[)etent for the plaiiUifif to w ithclr;i\v the Record or discontinue the action without leave of the Court or a Judge, but the Court or a Judge ma\-, before, or at or after the hearing or trial, upon such terms as to costs, and as to any other action, and :J17 Rule 170. 170 /■ Witlnlr.iwal of llTdlll. 1 '-m4 min. 1- 'I ■Oil IMAGE EVALUATION TEST TARGET (MT-3) 1.0 I.I 1.25 ■-IIIM -M 1^ 1^ 1 2.2 ^ ti& 12.0 - 6" 111= U IIIIII.6 Photographic Sciences Corporation 33 WEST MAIN STREET WEBSTER, N.Y. MS80 (716) 872-4503 *1% ■HHM ■ ' 318 ONTARIO JUDICATURK ACT, 1881. Rules otherwise, as may seem fit, order the action to be dis- 170, 171. continued, or any part of the alleged cause of complaint to be struck ouV Same as in the English Rule. At Common Law, a plaintiff who hail entered a cause for trial might withdraw the record at any time before the jury were sworn , this was often a hardship, where the defendant was ready with lii^ witn(!sses and Counsel. Under the pi'esent clause the leave of the sitting Judge is necessarj^ for tliu withdrawal of a record ; and in Jj('(t nunoHt'li V. (JwU. 1 Charl. Ca. (Court) 100. Huddlestoa, H. refused an application to postpone the trial iixed for a few days thereafter, thougli Counsel for the plaintitf was not suriiciently instructed in tlie case ; and he referred the plaintiff to the .Juii;'u who was to sit on the day appointed for the trial, for leave to witii- draw the record. [iCave was given where the consent of the opi)(>site party was produced, without any affidavit (Anon. 1 Charl. Ca. (Court) 9J)). In a test action, the plaintiff asked for a postponement of tlK trial, or that an order for discontinuance might he niade ; tlie Court held that it could not regai'd the rights of the plaintiffs in the other actions, but must act as if the plaintiff had not appeared at tlie trial ; and dismissed the action ( Rob'mwn v. Chadwick, 7 Oh. D. 878). 1-,. ( out ci';_ ■! {c) The Court or a Judge may, in like manner, and with the like discretion as to terms, upon the applica- tion of a defendant, order the whole or any part of his alleged grounds of defence or counter-cl?iim to be withdrawn or struck out, but it shall not be com- petent to a defendant to withdraw his defence, or any part thereof, without such leave. (Comp. R. Sup. C, 1875, Ordci 21, R. i ; Reg. Gen. T. T., 1856, No. 24 Ont). Same as the I'^nglisli llule. Under this IJule one of the defendants in an action for the recovery of land was allowed to Avithdraw his defence after the action had been in the paper for trial, but had been postponed till another action relating to the same property should be ready for trial, upon the terms of giving to the plaintiffs all the relief to wlii'li they could be entitled at the trial, and paying the costs occasioned by the defence, and the costs of a summons for leave to withdraw (Hml and Personal Adnanc Co. v. Mr.Gnrthii, 14 Ch. D. 188). The costs only which were occasioned exclusively by the defence were allowed (lb). 171 Withdiawnl .of reiMird by 2. Where a cause has been entered for trial, it may iis.Mit. be withdrawn by either plaintiff or defendant, upon producing to the proper officer a con.sent, in writing, signed by the parties. (R. Sup. C, Dec, 1875, R. 9.) Same as the English Rule, whicl" was framed to obviate the necessity of applying to the sitting Judge for leave under Rule 170 (see note to that Rule). Rule 172. 172 CllNlS ..11 REPLY. :]\\) 3. A defendant may sign judgment for t' : costs of an action if it is wholly discontinued, or 'oi the costs occasioned by the matter withdrawn, if the action bo. 1(54. ORDER XX. REPLY AXD SITBSEQUHXT PLKADlMiS. At Common Law, no time was limited for reply ; but the de femlaiit might compel a reply by giving with his plea notice to rt'iily in four days, otherwise judgment, in Chancery, re]jlicatioii was required to be tiled, or the cause set down to be heard on bill ami luiswei' or motion for decree, within one month after the iilingoi the last answer of all the defendants ((I. (). 152) ; otherwise the de- feiidant might move to dismiss (H. O. 273). At Common Law, the replication was either a sinqilc joinder of issue, or set up special matter, according to the form of the previois pleas. In Chancer}', the(ien. Ord. loO and lal made j)rov'-iion for admissions in the re[)lication of facts set forth in the answer ; but in pnietiee, admissions were .seldom, if ever, made in that way ; an '. tlie replication was merely a formal joinder of issue which close i tlie jdeadings. If the plaintiff wished to reply special matter, that could only be done by an amendment of the bill (Co.i: v. Keating, (i Pr. 1!. .^iV)). In Williamson v. L. d: N. W. Ih/. Co., 12 Ch. D. at p. 7!>0 ; Hal!, V. ('., said : " When the Rules were prepared, the view was taken that, after defence new matter shoidd generally be introduced b\- way of amendment, and that is in my opinion the more consistent cuurse, but it has not been in fact always enforced as the rule under the (Jeneral Orders." The tendency of the English authorities seems, however, to be towards the Common Law plan of alleging in a reply any new matter on which the plaintiff relies l)y way of confession and avoidance (see Hall v. A'tv, 4 Ch. D. 341 ; 4C L, J. (hy. 145 ; 35 L. T. J»2G ; 25 W. R. 177). Under the Ontario Rults of pleading the plaintiff may either reply, or amend his statement of eiaiiii. All the forms of reply given in the Appendix D are pre- faced hy a note to the effect that the form of reply given is to be used where the plaintiff does not introduce into his statement or claim, by way ot amendment, the allegations necessary by way oi reply to the defence ; and, in the cases in which forms of replies are given, the mode in which the matter in reply might be introduced into the statement of claim by amendment is also given (see Nos. 45, !l-. '}• 320 ONTARIO JUDICATURE ACT, 1881. Knles 173, 1/4. I r * 173 Delivery of reply. 174 Leiiv(> lor siil)si(|iu'nt l)leu(liiii,'d. 50, 61, 61, 68 ; also Tlule 152). Where a reply is used it may traverse the allegations made in the tlefence, or confess and avoid them or both (Hall v. Eoe, mipra, at page .34?). A reply must not set up new claims ; or refer to an independent document as containing fact% on which the pleader relies, without properly setting out such document as part of the reply ; and, like other pleadings, it must not state evidence, argument or conclusions of law (see Rule 128 and Williamson v. L. <{; N. W. Rif. Co., 12 Oh D. 790, and Collarnhell v. Flitjht, W. N. 1877, 125). A reply is to be delivered within three weeks after the last of the defences (Rule 173). As to the reply to a counter-claim, see Rules 126 h and 167. As to the further reply to a counter-claim founded on matter arising after the reply, see Rule 154. 1. A plaintiff shall deliver his reply, if any, within three weeks after the defence or the last of the defences shall have been delivered, unless the time shall be extended the Court or a Judge. (R. Sup. C, 1875, Order 24, R. i). Same as the English Rule. The last of the defences means the last defence of all the defences (see Colktt v. Preston, 3 Mac. & G. 432 ; Arnold v. Arnold, 9 Beav. 206 ; Bcrtolarci v. Johnstone, 2 Ha. 633 ; Chy. G. O. 152 ; and Ambroise v. Evelyn, 11 Ch. D., at p. 762). Long vacation is not reckoned in computing the time (Rule 4C1). As to extending the time, see notes to Kules 158, 160 and 462. Where a reply was delivered loithont leave after the time, and before notice of motion for judgment, it was held to have tiie etfeut of pi'eventing notice of motion being given for judgment, under the English Rules on admission of the defence by default of reply (Graves v. IWri/, 9 Q. B. D. 170). See also notes to Rules 158 and ItiO. Where the time to deliver reply would have expired on 25th .July but was extended to 22nil August, and afterwards to 19th Septem- ber, and on 2t)th September no reply having been Hied the defendant took proceedings warranted by the Euglish, though not by the On- tario Rules, to obtain juilgnient as on admissions by reason of the default, and on the same day the plaintiff, by leave, served notice for leave to deliver a reply ; leave was refused ))y the Judge of iiist instance on the ground of unexplained delay, but was granted on payment of costs, by the Court of Appeal (Eaton v, Slorer, 22 Ch, D. 91). 2. No pleading, subsequent to reply, other than a joinder of issue shall be pleaded without leave of the Court or a Judge, and then upon such terms as the Court or Judge shall think fit. (R. Sup. C. 1875, Order 24, R. 2). Same as the English Rule. f leadings cannot go beyond reply without leave, except that the defendant may join issue if he chooses. That however would not seem to be essential, as the pleadings are deemed to be closed with- CLOSK OF I'LKAUINGS. 321 « ■ "■ out joinder of issue, at the expiration of the time within which the Rules delivery of subseiiuent pleadings is necessary (ilules 175 and 176). 175 175. If the plaintiff rei)liL's specially, it may he necessary for a defendant, either to amend his statement of defence or to rejoin, so as tc» set u[) son i new feature in the case, in the nature perhaps of a confes- sion and avoidance, or something destroying the effect of the reply (see Wilikiiimm v. L. ,0 N. \V. R>i. Co., Vl Cn. D. 71)2-.^). In such case a defendant is only allowed to introduce by amendment with- out leave new matter where he has set up a counter-claim or set-off (Itule 180) ; in other cases it will be necessary for him to apjily for leave to amend or rejoin. In N'orr'm v. Batzley, 35 L. T. 845, leave to rejoin was refused, tlie proposed rejoinder being regarded as unnecessary, and only amounting to a statement of matters contained in the statement of defence in a more detailed way. In Eraiis v. Gann, W. X. 1875, I!i9, leave was granted to add a counter-claim after issue joined. 175 3. Subject to the last preceding Rule, every plead- Tiine for ing sub.sequent to repl>' shall be delivered within four*^"''^*^"^^" days after the delivery of the previous pleading, unless the time shall be extended by the Court or a Judge. (R. Sup. C. 1875, Order 24, R. 3.) Identical with the English Rule. ml ORDER XXI. CLOSE OF PLEADINGS. 176 As soon as cither party has joined issue upon any Wheu jUead- pleading of the opposite party simply, without adding "''''''^*'''*'^- any further or other pleading thereto, [or as soon as the time for amending the pleadings under these Rules or under any order made in the action or for delivering a reply or subsequent pleading or demurrer, has expired,] the pleadings as between such parties shall be deemed to be closed [without any joinder of issue being pleaded by any or either party]. (Comp. R. Sup. C.', 1875, Order 25 ; Order 29, R. 12 ; R. S. O , c. 50, s. 117.) ■ The clauses in brackets are not in the English Rule, which is in other respects the same. Under this Rule, in an action in which there is no counter-claim, the pleadings are closed when the plaintiff has delivered a joinder of issue with the defence, pute between the parties, he may direct the parties to prepare issues, and such issues shall, if the parties differ, be settled by the Judge. (R. Sup. C. 1H75, Order 26.^ Same as l*]nglish Rule. Issues were (), s. '270.) Tlic tendency of the lecisions umlei- that section lias been to hold tliat tile amendments in the tirst two dan -^es are iliscretionary and tlie last clause only mandatory (see (Jdinjl'''! v. (,'hirh, !• I'r. 11. 471 ; 3 Out. '2()!(); but if tlie Court comes to the conclusion that an amend- ment is "necessary for tlic advancement of justice, the prevention and redress of fraud, the determination of the rigiits and interests of the respective [)arties, and of the real (jucstiops in conti'oveisy between them, and l)cst calculated to secure the giving of judgment according to the very right and justice of the case," the granting or refusing of the amendment ceases practically to be a matter of dis- cretion (F<'t''rl-i)i v. Mr Far lane, 4 Out. App. 4;") ; Llilliltinil v. Wuiltf- icurt/i, 1 Out. App. S'J). I'nder JUile 178 i>i/ni, the < 'ourts are bound ti) allow all such amendments as may be necessary "'for the purpose of determining the real cpicstion or questions in controversy between the parties" (Rule 178 and CoHi'ttc v. (loode, ~ VA\. \). at p. 847; Biixinrott V. Iftirri.'i, W. N. 187(5, SI ; 1 ( "liarl. Ch. C'a. Do ; L-(/ v. Br'Kjijf, 19 (yh. D. '22, 'J!)) ; but this is subject to the limitation that the whole nature of the action may not be changed by amendment {Hind-horn v. I'cnru.'ic. '_".» \V . K. •J;i7 ; 4M !.. T. G()8) anil subject also to whether justice will bo advanced having regard to the nature of the projiosetl amendment {Mrllhunjcii v. Mr.dinms, \) i'r. K. 157 ; ('(ucj/iill V. CtarL; {) Pr. II. 471 ; 3 Ont. -'()!» ; Hiudrh-k--^ v. MonUvju, 17 < 'h. I). (34'2j and the time when the application is made (see oases iiif)-(i). Under this Order certain amendments may oc made witliDiil h'ave. The plaintiff may so amend his statement of claim before the ex])ira- tion of the time foi reply (Rule 1 79) ; and a defendant may so amend a counter-claim to which a reply has been made within the time allowed fur pleading to such reply (Rule 180). Jn other cases leauc. is necesxarij, and two classes of amemlments are provided for by leave : — (I) On the application of the party jjleading, to enable him to raise his real case ; {'!) on the application of the opposite party, to have struck out or amended any pleading which i'- improper, or framed so as to prejudice, embarrass, or delay (Rule 178). Rules 338 and 474 also contain provisi(Ui for amendment of tlefects and errors. As to amendment of writs see Rule 10. Amendments respecting the parties are treated of in Rules 90, 94. 103. I. The Court or Judge may, at any stage of the ^'^® proceedings, allow either party to alter his statemerit wltii'ieave"* of claim or defence or reply ; or may order to be struck out or amended any matter in such statements respec- tively which may be scandalous, or which may tend to prejudice, embarrass, or delay the fair trial of the action. All such amendments shall be made as may U :;«: A 324 Bale 178. On n jiiirty's own appli- cation. Wlieu allowed. Whc-ii refused. ONTAKIO JUDICATURE ACT, 1881. be necessary for the purpose of determining the real questions or question in controversy between the par- ties. (R. Sup. C, icS75, Order 2,, R. i. Comp. R. S. O., c. 49, ss. 5, 8 ; c. 50, ss. 120, 270.) Same as the Eiii^'lisli Rule. Aniendineuts which require the addition of parties as well as the restatement of alle<;atioii8 are made l)y the combined action of Uule 103 anil the present llule. The latter kind are alone here discussed. ( 1 ) A mendiHciif, on the (ippl'ication of a party to amend his own plead- liif/, HO ox to propcr/i/ fniinc. /lii (v/nc ; In Tildcsleii v. Hitrpcr, 10 Ch. D. at ]). .SOC) ; Hramwell, L. J., said his practice in (Jhandicrs had heen to give leave to amend, unless satisiied that the party apDlyini,' was acting vKi/djide, or that hy his blunder he had done some injury to his opponent which could not bu compensated for by costs or otherwise. 'Hiis rule has been subse- (piently held by the (Jourt of Appeal to be the correct one to be adopted until a linal judgment is obtained by one party. After that he acquires a vested right, of which he is not lightly to be deprived on account of Vdunders l)y the o))posite party committed without fault on his side{('/ii:le,i, 13 V,\\. D.388 ; Green v. Serin, mp. ; RHn.sell V. Canndu Life A-s.'turanre Co., 32 C. P. 256). In such a case perhaps the opposite party may obtain costs incurred in respect to the old pleadings (see Dan. Prac. 351-52) ; or if a plaintiff, he may have an opportunity given him to consider whether he will discon- tinue (see Edison Telephone Co. v. India linhber Co., 17 Ch. D. 137). Leave to amend will generally be granted where there has been a slip in pleading, but not in general so as to raise a fresh cause of action (Clarke v. Yorke, 31 W. R. 62 ; 47 L. T. 381). Leave to amend at th^ hearing may, however, be granted, though the projwtsed amendments set up a case not raised by the claim, and may require an adjournment to obtain fresh evidence (Budding v. Murdoch, 1 Ch. D. 42. See, however, the remark as to the head- note to tliat case. Re St. Yazaire Co., 12 Ch. D. at p. 92 ; Belts v. Dowjhty, 5 P. D. 26). Such leave Avill in general be granted on proper iterma so as to enable the real question between the parties to be tried (Laird v. Brians, 19 Ch. D. 22) ;• but the Court has a discretion as to the amendment (see Ashlei/ v. Taylor, 10 Ch. D. 772) ; and leave was refused at the hearing where no reason appeared why the bill was not amended when the answer came in (Offord v. < I ford, 1 Charl. Ca. (Court) 102). Leave was refused where the Judge thought the amendment would merely enable the defendant to raise, to the plaintiff's title to sue, a technical objection which was not raised on the pleadings (under AMKNDMKNT OI^^ P[jKAr)lN(;S. 325 H >.,11C11^V' .■. 1....... .... .. V..... ...... v..^ ^..v.,v. « U.U .,.^v,.. » peiifU'iitly fif fi'aud i I/i'iKfrirk.'i v. MuntAU/n, 7<'li. D. ir/'.sYf {J)inih(ir v. Afrck, li- C V. !!).'>) ; or rc()ui i; tliojidc Rule 147), and which the defeiidant novel intended to raise, till he g^jg jiyg. adroitly sought to avail himself of it at tin; hearing {('olhtlr v. 'JimIp, 7 Ch. I). 842 ; .see also Ciiinjh;// v. ( /nt. il.S")). So also where the effect would he to rivise a new (|Ue.stion which would in vol' -e an estate in further intricacies, and might more conveniently )e r.used in a separate action (lie /iiii//it, liliijht v. Hitvtiioll, 45 L. I". i^'M) ; or to convert a claim based on a sulisisting lease into on ; based . 175; 24 .So. Journ. 07) ; and when; tlie jtlaintill' had elected to claim in a manner inconsistent with the propot-ed amendment ('uri/ill V. liuwii; 10 Ch. L). 502 1 ; and where ihe etl'ect would l)e to raise a new issue merely to determin*! how "lie costs ot the action should be borne ( Wi'lihcr v. Wcdijiiniiiid, W . N. 1883, 8) ; or to raise a charge -rfi>/>/ v. n/oseil amendment 1 think the enlarged power given to the ( '.>urt by the Judicatur-e Act is one nf the most useful and beneficial which has ovei' l)cen conferred on the < Joui't. It is agaiivst justice that a. man slioidd not lie at liberty to bring his case forwartl in the way he thinks best, andth.athe should be precluded fi'om bringing befoi-e the ( .'ourt those materials which he cousidei's necessary for the ])ropor prosecution of his case. I do not think it w^as the intention of the Act that the old ipialifica- tidu should a])ply. In this case, till a recent {lei'ioil the jdaintiirs did not know of certain documents affecting tlie sut)ject matter of the action. These documents liave been laid before Counsel, and on his advice application is made to the Court for leave to amend. Is not this a ground on which the Court will exercdse the discretion which it takes under the Act? With the rest of the case I have nothing now to do. " The Oour-t would seem however, to have power in its discretion to consider the ameirdinent and refuse to allow .•in amendment w-hicli does not appear to be true or capable of being substautiatiid (see Mcllhiirf/''!/ y. ifrffinnis, in note to Itule 181). or which would set up an uumeritoi'ious defence where the time for raising it without leave has expired (see GanrjhlU v. Clark, 9 I'r. \\. 471 ; 3 Out. 269 ; Oor'-.s v., Forexterx, 4 Ont. 535). i!fi:.s fl%!fe » 1- i 326 ONTAKIO .MDICATIKK ACT, 1881. On applii'n- tioM of tlie oppiisitu party to atriku out. Rule 178. •■^** *■•' 'ilil'i'iiliiig from indiTsyrjuitiiig rufusiiijj: leave to amend, sec itifni p. 3'_'7 . An action may, l)y amcnilment of tlie writ ami statement of elaim, l>e turned into an action hy the Attorney-* ieneral at the «nit of a relatf)r without ])rejudice to a jiending motion in the action ; tlu- in^ceHaary sanction of th(! Attorney-(;eneral hein;^olitaiiied {('tilihnll V. Paiilidiii Hiirliniir, kc, '2 ("h. D. '2'2\ ; see Sltmii^i-ji v L'url m' r.'>n.s,lali', !.. I!. (> Chy. 141). Ci) A niPudinciil liji Mr'thiinj mit a p/i'in/lu;/ (i.i improper or iiidnir- rusfiiiHf, on the appUatlion of' /he opposite /xir/;/. — An cmljarrassini, jileadinj,' lias been delincd jis one in wliieh matter is pleaded wliicji tile party is not entitieil t(» make use of (Ilenijli v. ( hiDiilier/aiti, •_'") W. 11. 74'i, \V. N. 1877, 12S) ; e. ij., in an action to enforce a con- tract for tlie sale of a patent witliout warranty, a defence putting in issue tlie validity of the patent ( Lidrdef v. Ihunmoiul Electric Lii/li/, 31 \V. II. 710; \V. N. IS'^.S, OG). • The power is not so exercised as to enahle one party to dictate to the other how he shmild jdcad {Uo/fc v. McLtiren, M C!h. D. KKi, 108); but |)ortioiis of ])leadings have been struck out which are not in accordance with l!ule I '28 ; e. y., where they contained irrelevant allegations of fr.aud, to tlie ell'ect that in ti'ansactions other than the one in (piestion the defendants had been guilty of fraud (Hlahi- v. A/liioii, &c., IVi \j.'\\ '2(i!>); .st.'itements in the nature of a deiiiuritT (Sto/ces v. 'Irant, 4 (J. I'. D. '2") ; Me»hiuirk- v. Turner, W. N. lS7t;, 55; '2 ('harl. Ch. (Ja. 4'2); immaterial facts set-out with proli.xity {J)(iri/ V. (I'lrrett, 7 (Jh. 1). 47^^); admi.ssions (Askeir y . y. E. /i\/ Ci,], W. .\. 1875. -238; 1 ("Iharl. (!h. Ca. !»0 /hiri/ v. (htrrett, '.siip.) ■ evidence (Jo,'/f',s v. 'J unwr, \V. N. 1875, '2.S!t ; I'charl. Ch. Ca. ill); scandalous statements whieli were immaterial (/^(o/c«h v. Vereker, W. X. 1870, 04 ; -2 (Jharl. <"li, Ca. 44; see Cr(iri:ini//. v. Jdiison, II Cli. D. 1 :Sn,l/eirv. Smith, 7 I'r it.' 409; Chri.slle v. Christie, I.. K. 8 Chy. 49!) and notes to Mule 1'2()) ; but nothing is scandalous that is relevant to the merits (Dan. Prac. 2i)0). So general statements of title may be struck out (/'hi/ijtps v. Philippn, 4 Q. B. I). i"27, Itnlu 144); allegations so prolix as to be obscui'e (Mar.-le, (> Ch. D. 748. Where allegations are properly pleadable uniler Rule 1'28, tiie Court has uo power to strike out the iiaragrajjh containing theiu, unless soandalous or tending to prejudice, embarrass or delay, witiiin the meaning of the present Rule {MiUiiKito}! v. Loriixf, Q. B. I). 190). Where the plaintitT asked for an injunction an (lemur, livit a motion to j^yg yjQ^ strike out the pleading or pai'.iu'ra))h may he made. 'I'ims in Scmii' V. I)ii('lc-tt, 3 • >nt. M7n, the omission in a claim l)y a simple eon- tract crtrditor to state tliat he sues on l)ehalf of all creditors to set' aside a eoiivoyanee as fraudulent aijainst creditors was lield not matter of demurrer. So wlien; a claim for i;jectment all">^tM! tinit prior to 1874 defendant was tenant and had jtaid rent, hut since 1S74 had not paid rent, it was h(dd to he emharrassing as not sho^ving any sul>sistin^ tenancy (.If'i'/o// v. L''ii'n:-i. 1*J fi. It. Ir. Ii!> ; sec also Riiu'li^ji v. Liif/Uii', ](» li, 11. Ir. !)). In Fhii'li y. Tin- (iiKirilhtiix at' Yorh Union, 'M) I,. 'I'. odO, a motion to striice out the w'lole statement of defence was lieid to he miscon- ceiveil, as tlie defence was not so frivolous as to justify its l)eing set aside, and tlie jplaintirt' ought to have demurred. In iViir v. /inniiU, W. N' . 187.'), -JIS ; 1 (Miarl. Ch. ('a. {)3. a defendant aiiplied to compel the [)laiatill' to jimcnd, in an action for false representations ill I'cgard to dehentni'cs stated to have been made in a letter and prospectus, and Huddleston, 15., refused to oi'der an amendment of the claim, so as to show which of the false representations were in tlic letter, and which in the [jrospectus. Where pleadings are such as should he struck out, they ought to l)e struck out hy the Judge, and not to he left to he dealt with as a cpiestion of costs ( IViif.toii v. Kodwill, 'A Ch. D. 380). Oi'dinarily, instead of altogether strikinifout a pleading or part of a jileading, the i)arty wliose ;)li'ading is defective will lie given an oiiportunity to amend I Mour/ioitnc v. Colr/'/lc, W. N. 187*), I'i ; 1 Cii.irl. Ch.Ca. 95 ; Anon. W. N. 1870, 24 ; 2 (Jharl. Ch. Ca. :W). Applications under this llule to strike out pleading are under the practice in Ontario made to the Mastt'r in Chand)ers. (See Marriott v. Mii.rriotl. '2() \V. II. 41(5, for the practice in lOngland in this respect and as to the costs of such motions). The striking out of pleadiuiis is in the discretion <»f t!ie Judge , A; t'>'i*'^- and, as a general rule, an ajjpeal from his order will not be enter- tained, unless a ([ue.^tion of principle is involved (see (iolilin(/ v. Wharton SaUworLi Co.. 1 Q. R. D. 374; n'dt.son v. Rodwell, 3'Ch. D. 380 ; Ru.-iton v. Ti.lnn, 10 Ch. D. r).")8, oBo ; Rv Martin, Hunt v. Chainhcr.s, 20 Ch. D. 3(55). Such an a))peal was entertained in Davi/ v. aarrctt, 7 Ch. D. 473; see also Laird v. lh-hj(j.'i, )ractice warranted the addition, under an order of course to amend, of a jdaintiff ( />/////( v. McLdiii, (> I'r. K. 97) or defenihuit (Adonin/O'i'iimi/ v. i\ct here oat. 2 M. & Cr. (;((4), but not the Htrikinii out of ;i defendant or of a plaintiff', if any of defendiints had answered ( />««;* v McLfun. xii]).) As, however, this liule relates to tlie amendment <■!' ,i pleading only, and as an action is not now commenetid by a pleading l)ut liy a writ, it would seem that no alteration in the frame of the action as to parties (;an be mad(^ ))y amend neiit under tliis llule. It is to be observed alsi> that ilules 10.") and 1(H) ]M)int to the service of added defendants with a vrU. Mules 10 and 10.'] ft kc'i. would soem to apply where amend- ment in res])ect to the parties is desir^^d. It has been helil under the similar provisions of the Irish .ludica- ture Act that a itlaiatiff amending without kiave may not cadd a fresh cause of action not covered by tlie indorsement of tiie writ and that such an amendment is liable to bi' moved ag.ainst under llule ISi (Moore V. Almll, 8 L. K. Ir. 'JW). Such an amendment may affect the costs of prior pleadings, ami 3n a motion under Kule 181 such costs may be iti'ovided for, but under the English j>ractice it is not the rule that the statennMit of claim must be no wider than the claim indorseil on tho writ (see Johnaoit V. Pdhnrr, 4 C P. I). 'ioS, and liourke v. Alexandra Hotel Co., \\ . N. 1S77, HO), and there seems to lie no reason why the plaintiffs should not, except as to ]):',rties, make under this Itule as large amendments as by the foimer Chancery practice might have been made inider an order of course (as to which see Med'iU'ii-rdii v. Mc/'onki I/, 6 I'r II. oC)). The provisions of liule 181 will enable the defendant to obtain tlie imposition of any terms that may be .just. No amendment can be maile pending a demurrer (see Ifule 19()). Where tlie plaintill" amends after a statement of defence has been put in, the defendant may amend his statement of defence under Hule 182, or put in a new defence, or may proceed with his original defence [Botbiy v. Wall, 7 Ch. D. 1()4, not following Durlinq v. Lawrence, 4«) L J. Cliy. 80.S ; W. .\. 1S77. 182). If he neither amends or puts in a new defeii ;e. it is presumed that the original defence will stand as a defence to the amended statement of claim. 180 Amendment 3. .\ defendant who has set up in his defence any Mfituout '*" set-off or counter-claim, may, without any leave, amend leave. such set-off or counter-claim at any time before the expiration of the time allowed him for pleading to the AMENOMKNT OF PI.KADINOS. 329 reply, and before pleadinjjj thereto, or in case there be Rnlw no reply, then within twenty-eij^dit days from the 180-182. filinj^ of his defence. (Conip. R. Sup. C, 1875, Order 27. l<-3.) Siilwtantially the same .ih tlic Knglish Hulo. Tho jtraotice is new. Tlie time for pliiuliiig to rfi)ly i?'. four ilays (llulo 17.')). For the course to he [iursiied by iilaiiitiil' if tiie defcnilant aineruls, see Utiles ISl aiitl liS'J, and limUlii v. WnlL in/mi. 181 4. Where any i)art\' has amended his plcadinc^s i>'^'""w- under either of the last two preceding;; Rules, the op- mnondment. posite party may, within ei;;^ht days after the delivery to him of the amended pleadin;^, apply to the Cou/t or a Jud^e, to disallow the amendment, or anj' part thereof, and the Court or Jud^e may, if satisfied tiiat the justice of the case requires it, disallow the same, or allow it, subject to such terms as to costs or other- wise as may seem just. (Comp. R. Sup. C, 1875, Order 27, Rule 4.) Sir ao at the Enjilish Rule. The giving of security f'li costs has been imposed as a term where a new case was raised by tiie amend- ment [Northauiptoii Coal, Iron <0 Wik/i/hh Co. v. MhllamI W(ty the jdaintiff asking in the alternative foreclosure of the land as mortgagee was disallowed on motion under tiiis Rule (,\frl/hn7-(ji'i/ v. McGlniiU, i'r. 1{. 157) . Where a ])laintitt" strikes out allegation so as to make the answer of (lefendiiist useless, the defendant may apiily under this Uule for the costs uuno<'e8sarily incurred. See McHUih^raii v. McCnukey, G Pr. R. 5() ; Strirkhind v. Sfrirkfdml. li Reav. •24'J ; Maror v. />/•»/, 2 S. & S. 118: M'HOi.^t'ii v. Hnnikam, \ Ha. 'I'l ; Dan. Rr.. 5th ed., 182 5. Where any party has amended his pleading Leave to under Rule 2 or 3 of this Order, the other party may .^''.'jJInVafter [without leave amend his former pleading within four*"'^"'^""*'**- days after the delivery of the pleading so amended under such Rule : or he may] apply to the Court or a Judge for leav^e to (a) amend his former pleading within such further time and upon such terms as may seem just. (Comp. R. Sup. C, 1875, Order 27 R. 5 ; Order 24, R. 3 ; G. 0. Chy., Nos. I53-I55-) The English Rule has not the words in brackets, and inserts at (a) the words " plead or to." Tn other respects the Rules are the same. u m 330 ONTARIO JUDICATURE ACT, 18S1. Rules 6. Either party may amend his pleading at any 183-185. time without order on fih'n[y the written consent of the Aimn.imt,:. opposito part}' or his solicitor. by I'Dnsent. New. ApHhttioii "• ^" •'^" cases not j. -ovided for by the precedin^^r for leave to Rules [numbered from 2 to 6] of this Order, applica- tion for leave to amend any pleadin^^ may be made by either party to tlie Court or a Judge in Chambers, or to tne Judge at the trial of the action, and such amendment may be allowed upon such terms as to costs or otherwise, as may seem just. (R. Sup. C, 1875, Order 27, R. 6.) Tlie I'higlisli Kiili! lias not thf woi'ds in Imickots ; hice ixcoed two folios, the ('lerk of Uecords and Writs liad discretion to rehise to file the bill without a reprint, if the amendments were numerous and complicated. 187 10. Where an\' pleading is amended, such pleading Marking of when amended shall be marked with the date of the jXadrngs order, if any, under which the same is so amended, and of the day on which such amendment is made, in manner following, viz : " Amended day of (R. Sup. C. 1875, Order 27, R 9.) Same as the Kuglish Rule. '((y Where a pleading is amended the amendment shall be written in ink of a different colour from that used in the original pleading. 188 11. Where a pleading is amended such amended D>>iiv(ny of pleading shall be delivered to the opposite party pleadings, within the time allowed for amending the same. (R, Sup. C, 1875, Order 27, R. 10.; M V\h I Same as linalish Rule. ORDER XXI V. DEMUIUIER. 189 I. Any party may demur to any pleading of the Demurrer opposite party, or to any part of a pleadmg settmg aiiow.d. up a distinct cause of action, ground of defence, set- off, counter-claim, reply, or as the case may. be on the ground that the facts alleged therein do not show any cause of action or ground of defence to a claim ■.i 332 ONTARIO JUDICATURE ACT, 1881. Enle 189 or any part thereof, or sct-ofir, or counter-claim, or reply, or as the case may be, to which effect can be given by the Court as against the party demurring. (R. Sup. C, 1875, Order 28, R. i.) Same as the English Rule. Where a ph'ading on its face clearly shews no ground of action, the opposite party may, and generally should, demur. (ISee Ciin- ninijton v. G. N. IVy Co., 49 L. T. 39'J ; Attuntcji-anuml v. Blr- ininiihain, 17 Oh. D. 685 ; Griffiths v. Ijonduii 77 ; 51 I,. .1. q.. li. '255 ; 40 L T. 5:« ; Vokjkj V. Rolnrtson. '_' Ont. 4.S4). Illustrations In an action against the owner of a tug by a shij) owner for iiri- proper navigation, the defence w;is, that the liability of defendant was limited under sec. 54 of the Merchant >Sliipping Act, 18G2, to $8 per ton of the tug's toniuige. On demurrer l)y the plaintiil", the Court held (tiiough it overruled the demurrer) that the defence was properJy ])Ieaded as a distinct defence pro tanfo, a statement of defence being the only mode in wliich it could be set up ; and that if so properly pleaded as a distinct ground of defence, it was a proper subject of demurrer under the present Rule ( \V«vioii8ly demurred to a statement of claim was held entitled to dennir to part '"'''*'^''^"* of the statement of claim in his amended statement of defence {Powell V. Jeweubnry, 9 (!h. D. 34). This was not formerly allowed (Attoriu'if-General v. Cooper, 8 Ha. IGG), unless the nature of the case made by the bill had been changed by ameiuUneut (Cresy v. Bevun, 13 Sim. 354). As to demurrer to part of a pleading see note to li. 1 90. The Court need not on demurrer decide a doubtful question, but Doubtful may require the case to be brought to a hearing in the usual way que-stionH [Cochrane v. IKtZ/w, 10 Jur. N. S. IG2 ; C'o.c v. Barker, 3 Ch. U.359). '";*;!\ ""* •»• Where a Judge has considered that the (question ought not to be jyll'u^.rer" decided on demurrer, his decision will not ordinarily be reviewed in appeal (Sheffield Water Works v. Yeomans, L. Li. 2 Chy. 8). As to raising the question of the Statute of Limitations or Statute of Frauds by demurrer (see notes to Rules 141 and 147 ; and Vane V. Vane, L. R. 8 Chy. 383). m I 334 ONTARIO JUDICATURE ACT, 1881. dciiiurriii''. Rules Where a point which will dotermine tlie suit is apparent on tlie 189 190- ^^^*^ '^^ *''*' plaiutifPs statement of claim, so tliat it niiglit l)e raisuil _ ^ , by demurrer if the aotion l)e dismissed on tiiat point, the :iragra!ih look at an> otljer paragraph hearing on tlie .same matter, and '''^ ''■ lili'iiiiiiit;. if w lien taken together they disclose a .sulhcient defence the demurrer must he overruled {AttoviKii-dcinrdl v. Mhlhnul, H (hit. f)}] ; see also Hiiinohr v. Marx, 'J9 (ir. 17!) ; and Fknrer v. LuniJ liixird, 5 I'll. I), oul ; Nathan v. Batchelor, W. N., 1870, 172). In Watson v. Haivlciiix, "24 W. R. 884, it was held th.at a party need not distribute his facts so as to show which are intended to support particular prayers for lelief Lord Coleriilge said, "so long as a paragraph sup[)orts some one or more of the claims in the prayer it is not demurrable. 'J'he plaintiff is not bound to assign sucli and such paragraphs to such and such prayer. He states all the facts he deems material, and then asks for sucli and such relief ; and if each of the facts set out tends to sliow that he is entitled to some relief, and that relief is asked for by one of the prayers, the para- graph setting out that fact must stand." In the opinion of Mr. Justice Lindlej^ in the same case if there was a prayer for general relief, and the pleading showed the plaintiff entitled to any relief, the statement was not demurrable See also Viiuikj v. Rol'crt.'ion, 2 Diit. 4.S-4, where it was held tliat a demurrer did not lie if in any aspect of the case the jdaintiff was entitled ti) some relief. On the argument of a demurrer, any document referred to must he taken to be truly stated, and cannot ))e looked at to contradictor alter the averments in the pleading, even thougii there be a reference to the instrument for greater certainty as to its contents {LoiKjliead V. Slulih.s, 27 /n, 4 A\>\). Ca. ol). If no ground or a frivohius ground was stated, a demurrer niijilit under the Connnoii Law l'rai:tice have ))een struck out in Chainljors (see Arch. Prac, p. 920, I'itli ed). However frivolous, it could not be treated as a nullity, even though no ground was stated {Li/on.'i v. Cuhcii, o Dowl. 24."-!). In an action for breach of an agreement to pay deposit money, the statement of claim, instead of asking for daniiiges, asked for the deposit money as a del>t. Archiliald, .1 , at (!hanibers would not strike out the demurrer as frivolous, but gavu the plaintilf leave to amend ( W'ilks v. J'arkfr, W. N. 187(5, 74). 3. A demurrer shall be delivered in the same man- ner and within the same time as any other pleadinij in the action. (R. Sup. C, 1875, Order 20, R. 3.) Same as the lOnglish llule. As to the manner of delivering pleadings, see Rules 131 and 1.S2. For time of delivery, see Ivules IGO, 161, 162, 167, 173. A defenda.it who has obtained an order extending the tin : within which to y the proposed demurrer are good and valid objections in law. Leave was given by Lindley, J. to plead and demur where the ground of demurrer was that the statement of claim disclosed no cause of action (Anon, W. N., 1876, 37, 2 Charl. Oh. Ca. 46). Where defendants had cond)ined with their defences demurrers to the whole claim, i)ut the dcmuirers were not filed soon enough to enable them to be argued before the tiial, the (^ourt acted under the concluding clausf of this Kule and Rule '256, and gave leave to tlie ElaintifF to enter the action for trial, and directed the demurrers to e argued at the trial {Bank of Montreal v. (Jousin«, 3 (.'. L. T.iOo See also Rule24<>). Where a (|uestiou of law has been decided on ademurrer on a pre- liminary objection and an appeal is brought, the Court will nut in general stay the trial of issues of fact pending the appeal {lie J. B Palmer, 22 Ch. D. 88). After a demurrer had been overruled, the bill was amended and the defendant answered, not stating in ins answer the object on which had been raised on the demurrer. It was' held that the defendmont might at the hearing renew the objection without pleading {Johnasnon v. Bonhote, 2 Ch. D. 298). 7. Where a demurrer either to a whole or part of a pleading is delivered, either party may enter the de- murrer for argument immediately, and the party so entering such demurrer shall on the same day give notice thereof to the other party. EflVctofaot [a) If the demurrer shall not be entered and notice entering, th^.j-eof given within ten days after delivery, and if the party whose pleading is demurred to does not within such time serve an order for leave to amend, the demurrer shall be held sufficient, for the same purposes, and with the same result as to costs, as if it had been allowed on argument. (R. Sup. C. 1875, Order 28, R. 6 ; G. O. Chy., Nos. 121, 146, 418.) This is the same as the J*]nglish Rule, and the iirst clause is s>d)- stantially the same as (»rder 71 of the U. C Chancery (General Ordej-s 1853. Under that Order it was held reasonable that the plaintiff should have an opportunity of submitting to a demurrer, and that a party who sets down his demurrer on the same day as lie files it, must be considered as waiving his right to taxed costs on a submission to the demurrer within reasonable time, which was con- sidered to be the next four days both inclusive (Baldwin v. Borxt, 1 Chy. Ch. 82). Within such reasonable time the plaintiff might amend on the payment of $4 as costs (Baldwin v. Burnt. «upra, and Martin v. Beid, 6 L. J. 143). 195 Entry lor arf:iiuit'nt. DEMUUKKK. A demurrer will under clause («) of the present Rule be allowed if the party whose pleading is demurred to does not amend or set down the demurrer for argument within ten days. 'I'he course of the demurring party will in general therefore be to wait till the ex- piration of the ten days. For form of entry of demurrer for argument, see Appendix (H) No. 8(5; and of notioe of entry, Appendix (B) No. 'J8. As to service of an order for leave to amend, see Rules 179, 180 & 185. Where there are oross-demurrers, and the Ijurden of proof is ou defendant, so that if he fails his cross-demurrer becomes immaterial, he will be entitled to begin (Clarke v Jiradlaiujh, 7 Q. B. L). 88). 339 Rnles 196-198. 196 8. While a demurrer to the whole or any part oi a No amend iTient pend- pleading is pending, such pleading shall not beiugde amended unless by order of the Court or a Judge ;"'""'"• and no such order shall be made except on payment of the costs of the demurrer. (Comp. R. Sup. C. 1875, Order 28, R. 7 ; Reg. Gen. T. T. 1856, Nos. 14, 15, Ont.) Same as the English Rule. Heretofore »t Common Law, an amendment was allowed as of course on payment of costs, and sometimes even without costs (see Tomlimon v. Bollard, 4 Q. B. 642 ; 2 Arch. Pr. 927, I2th ed.) 107 9. Where a demurrer to the whole or part of any costs of pleading is allowed upon argument, the party whose demurrer, pleading is demurred to shall, unless the Court other- wise order, pay to the demurring party the costs of the demurrer. (R. Sup. C. 1875, Order 28, R. 8.) Same as the Knglish Rule, and as the English Chancery Order 14,, Rule 13 ; Dan. Prac. 5th ed. 515 (see Morgan, 4th ed. p. 448). The words "unless the Court otherwise order," imply that, in some cases, the Court ought to otherwise order (Duckelt v. Goirr, 46 L. J. Chy. 407 ; 25 W. li. 455). In that case, as fraud was charged, Jessel, M. I'., considered that, if the fraud was proved, it might not be just to order the plaintilJ" to pay the costs of the demurrer, and the costs were therefore reserved till the hearing. In Hallimellv. C'ounsell, 38 L. T. 176, a demurrer was allowed, and leave to amend given without costs. Where a party fails to appear, judgment may be given for the party appearing, without argument (Turner v. Saimom, W. N. 1876, 163). 198 10. If a demurrer to the whole of a statement of costs nt claim be allowed, the plaintiff subject to the povver of sut.' "ssf"i the Court to allow the statement of claim to bepSiff-s*' amended, shall pay to the demurring defendant the ***^^^ '^'''"" costs of the action, unless the Court shall otherwise order. (R. Sup. C. 1875, Order 28, R. 9.) Same as the English Rule. See note to preceding Rule. ■"•V I m\ 340 ONTAIUO .Il'DfrATURK ACT, 1881. Rules 199-201. 100 EflVi't of de- IIUIITIT to jxirt Ufiii^' llllllWl'lI. Where a ileinurrer having been allowed, the plaintiff was ordered to i)ay the costs, and faileil to do ao, the defendant obtained an order to stay proceedings till payment. Five months after that order, the costs iieing still un]»aid, the Court ordered the action to be dismissed unless tiie costs were paiil within a month ( White v. Bromitje, 2t; W. K. .'112). 1 1. Where a demurrer to any pleading or part of a pleading is allowed in a case not falling within the last preceding Rule, then (subject to the power of the Court to allow an amendment) the matter demurred to shall as between the parties to the demurrer be deemed to be struck out of the pleadings, and the rights of the parties shall be the same as if it had not • been pleaded. (R. Sup. C, 1875, Order 28, R. 10.) Same as the English Ilnle. For the mode of signing judgment in such case see Rule 204. „ . , 12. Where a demurrer is overruled, the demurring Costs of . ' fc> unsuccessful party shall pay to the opposite party the costs occa- sioned by the demurrer, unless the Court shall other- wise direct. (R. Sup. C. 1875, Order 28 H. 1 1.) Same as the Knglish lUile, and as English Chy. Order 14, Rule 12 (see Dan. i'rac. othed. ol!>). Where a demurrer on two grounds succeeds as to one, but fails as to another, no costs are given (Beimoti V. Iliii/jif lil, iS Jieav. 546 ; Paine v. Clutpnuiii, G (uri:itm v. Lun/ Pcnrln/ii. 4 App. ('a. fii ; 'I'l/hr v. Bill '1 M. & CI. 8!> ; Spi'ix'ir v. Hart, '.»<>' Sol. Journ. 140). Where a demurrer is overruleil, the same objection may be raised at the hear- ing without being pleaded {Johnanmii v. Ihinlmtf, 'J ( 'h. I). 'J!>S). 341 Rules 201-203. 11 202 14. A demurrer shall be entered for armimcnt bv •■'""" ''^ * i_'iitrv for delivcrinfT to the proper officer, a niemoranduin of lugunieuu entry in the Form No. 86 in Appendix (E). (R. Sup. C. 1875, Order 28, R, 13). Same as the English Rule. As to demurrer-books and notice to the opposite party see note to Rule 1!)1. R D E R X X V . DEFAULT OF PLEADIN(}. The old Chancery procedure for taking bills pro ronffnuo is super- seded by this Order (see Pror. P. Bdi/.S. v. Gree.nhiU, 1 Ch. D. G24 ; Gardiner V. Hardy, W. N. 1876, 185). 203 I, If the plaintiff, being bound to deliver a .state- Dis'iii^sa' of r \ • \ T 1- 1 • 1 • 1 aL'tion on ment of clarni, does not deliver the same withm the iiiaintiff's time allowed for that purpose, the defendant may, at ifiaun'fo'r' the expiration of such time, apply to the Court or a '^'^^''*' Judge to dismiss the action with costs, for want of prosecution : and on the hearing of such application the Court or Judge may, if no statement of claim have been delivered, order the action to be dismissed accordingly, or may make such other order, on such terms, as to the Court or Judge shall seem just. (R. Sup. C, 1875, Order 29, R i.) Same as the English Rule. Rule 158 regulates the time within which the defendant is bound to deliver his statement of claim, viz., three months after appear- ance. The time by the English Rule is six weeks. The practice in this Province has been to make such application in Chambers. In England, it appears to be a matter for the option of parties, whether they will move in Chambers or in Court ; and, if the motion is made in Court, it is a question to be decided by the Court in each particular case, whether the motion was under the circumstances proper to be made in Court [Evelyn v. Evelyn, 13 Ch. D. 138). But moving in Court instead of Chambers is disapproved ^l|l •^ih (I if I! iL il il iiJ ■ 342 f)NTAUI() JUDIOATUIII': ACT, \HH]. Rule 203. "f {('hi'st^rjii'lil v. Hlitrl-, ]'A Ch. D. \'AH, noti' ; FniLion v. /,i,i, lit) \V, H. i.SS). The ii|)|»lic!itii>n iiijiy lit; Hiippurtol by an atlid.ivit ttiiit .'I Htiituinuiit of eliiirn Iiiih iidt liceii lUHpiiisi'il with ami has not hetMi delivered, and a c«'rtilicat.i' of th»! Clerk or Keyistrar in whose ofHci) tin; action is, that an appcaranre has lieen entered by the applieant, with the date of entry. Where the plaintill' made default in delivering; Imh (ilaiin, and had heeome bankrupt, it was held that notiee of motion to dismiss under this Itule must be served upon the trustee in bankruptcy ( iyriij/il v. Suuii'loii It'll Co., 4 ("h. 1). I()4). In Ifliji/hihiif/inii v. Ai/iis/ri/^ 'A Ch. \). 'J88, on a motion to dismiss under this I'ule. Mall. V. (,'., ^^ave a week's time to take further proeeeilings, observing that each ease was to depend upon its own merits. The jdaintin' was ordered to my the costs of the motion. Probably the plaintiff will in general )e given a short further time upon payment of costs. It has been said that, if a plaintiff' desires to avoid the cost of the hearing of the motion, he should tiiiider to the defendant the costs of the notice, and give the usual undertaking to go on {/•^rr/ifti v. En-/,,,,, 18 Ch. I). 1.S8; Freamu v. Lne, 2(5 W. H. 138); but it may be tbmbted whether this is the pr.actice in Ontario, even where the motion to diamiss is merely for a default under this liide (see note to Kule 'I'm). Where bef(»re statement of (slaim an action was stayed until the plaintiff should give security for costs, and the time for delivery of a statement of claim expired without security having been given, it was held that the stay did not j)n'vent the action from being dis- missed under this Rule {La Oruiiyc v MrAiidirin, 4 Q. H. D. 'iiO). Where an order had been made dismissing an action, unless a statement of claim should be delivered within a week, and this was not done, it was held that the action was at an end, the order hav- ing neither been comjdied with nor appealed against, and an order could not afterwards be made extending the time for delivering the statement ( Whifitlcr v. Hnncurk, ^i Q. !>. I). 83 ; see also Khxj v. Dui'eupurt, 4 Q. H. I). 40'J). But if an order to dismiss is made, further time may be given ft.r appealing against that order (see Itule 427 (h) (r) ; liurkc v. Hooney, 4 C. P. I). 226 ; Cartn- v. Stnhha, t> Q. H. D. MO) ; or if the time has not expired so th.at the action is not gone, tluorc is jurisdiction to vary or rescind the order for dis- missal on proper grounds ( Welplji v. Buhl, 'A Q. B. D. 80, 253 ; Carter V. Stuhhs, sup. ) See also notes to Rule 4(52 The practice in Ontario in similar cases has hitherto been to obtain a further order ex parte dismissing the action siiewing that the previous order has not been complied with. (See Burns v. Chithohn, 2 Chy. Ch. 88.) It would seem that an order dismissing an action does not take effect until it is drawn up and served, and that the action under the English practice is not (lead until that is done {Metcalfe v. Britinh Tea Association, 4G L. T. 31). The dismissal of an action for want of prosecution is not a bar to a subsequent action in respect of the same matter (Be Orrell Colliery ct Firebrick Co., 12 Ch. D. 681), but the second action is liable to be stayed until the costs of the first are paid (see note to Rule 429). See Sutton v. Huggins, W. N. 1875, 235. The plaintiflF sued the indorser of a bill of exchange. The debt was afterwards paid by the acceptor, and the indorser applied to dismiss the action for want of prosecution. Lindley, J., said, "I shall certainly not let the action go on simply to determine who is ItKKAII/r IN I't.KADINU. til pay the ooatH. All further proi-ci'diii^n in tho actimi tu ln' staytil, tln' (Iffuiulaut to pay the costs of the writ." (Amm. W. N. 1870, ;i7i, See also Ellh>ti \ iinrilinr, H \'r. 11. 40!». I'hoiigh no motion to , c. (it) 8. 10. :U3 Rnleg 203. 204. ■IP' I 204 2. If the plaintiff's claim be only for a debt or liqiii-jurigmont dated demand, and the defendant does pot, within the |j';|j',J,'j^'^l^^'„ time allowed for that purpose, deliver a defence or de- '» 'ia"" f*"- imirrer, the plaintiff may, at the expiration of such time, enter final judgment for the amount claimed, with costs. (R. Sup. C, 1875, Order 29, R. 2 ; R. S. ()., c. 50, s. 150.) Identical with the Knglish Kule, and in accordance with tho ''. L. r. Act, K. s. ()., c. 50, 8. I no. .\ defendant must "deliver his defence within eight day.s from tlie delivery of the statement of claim, or from the time limited for appearance, whichever shall be last, unless such time is extended by the Court or a Judge " (Hule H)0). It is held in I'higland that if in an action on a replevin bond, the plaintitt', instead of claiming damages, claims tho amount for which the bond is given, and becomes entitled to judgment l>v default, his proper course is to enter final judgment under this IJule, and not interlocutory judgment under Rule 200 {iJix v. (irouni, ;") Kx. \). !H). But this will piobably not be so in this Province, as he is not entitled in such case to claim the whole amount of the bond, it being provided by H. S. O. c. o3, s. '28. that " In case the plaintiti l)ecoraes entitled to sign judgmejit by default, he shall be at liberty to sign final ju«Igment for the sum of live dollars, and costs according to the proper scale, but shall not be entitled to recover a larger sum, except upon an assessment before a Judge or jury, or upon tiling the written consent of the defendant or his attorney, and an atKdavit verifying the signature to such consent." It has been laid down by the Judges of the Chancery Division that where a writ is specially indorsed and there is also a claim for aa equitable demand, or a demand in respect of which a motion for judgment is necessary, the plaintifl' cannot obtain judgment b/ default on the claim specially indorsed, but must set the case down nn motion for judgment as to all the claims. Where a demurrer to a claim is overruled and no leave to plead is given linal judgment may be signed under this Rule if the time for (Itlivery of defence has expired. The same course will be pursued where a demurrer to a defence is allowed and leave to amend refused. By Rule 199 the pleading demurred to is deemed struck out and the rights of the parties the same as if it had not been pleaded. , : 344 Bnles 204-206. i 205 Where several (lefendantf. ONTARIO JUDICATURE ACT, 1881. Wliere a defence has V)een struck out, for instance for disobedieiK c to an order for discovery, judgment may be signed under these Ivuks (see Fisfirr v. Hiiijhc^ 25 W. U. o'iS). Tn Hooper v. GUch (W. N., 1870, 10), Lindley J., in Chambers, held that a defendant is not bound to deliver any defence where Ik has given notice that he does not require a statement of claim, and no statement of claim has been delivered (see Wilson's Jud. Act, L'ml ed., p. 208; Baxter's Jud. Act, 4th ed., p. 227). Some support to this view is given by WUhnott v. Youmj, 44 I-. T. 331, a fore- closure action, in which the defendant had appeared and dispensed with a statement of claim, and l)n motion for judgment the defendant objected that the case shoidd go to trial as there had been no default in delivery of defence or demurrer. .Tessel, M. H., in placing tin; case in the witness list said " 1 see no Rule applicable to the case as it stands. If I could make the defendant pay the costs of the dav I sliould do so. " Attention (hies not seem to have been called in that case to Jiarrison v. Sumij Aftticer held that by taxing the gen- eral costs against L. , the ])laintiti' had waived the right to recover those costs from K. To remedy this an order was made in Chambers ejc partr setting aside the judgment as to costs against \j. ; upon shewing that he was worthless and no steps had been taken to enforce the jutlgment against him. 4. If the plaintiff's claim be for the detention of goods and pecuniary damages, or either of them, and 206 Interlocu- tory .jndf4- f.mitinciiiim the defendant makes default as mentioned in P.ule fordamagoh. j.j^^. plaintiff may enter an interlocutory judgment against the defendant, and the value of the goods, and the damages, or the damages only, as the case may be. ■i DEFAULT IN PLEADiyO. shall be assessed as hitherto. But the Court or a Judge may order that the value and amount of damages or either of them, shall be ast crtained in any other way in which any question arising in an action may be tried. (Comp. R. Sup. C. 1875, Order 29, R. 4.) This Rule is substantially the same a? the Englsh Rule, except that tlu' latter provides in the lirst ])art of the Fiule for a writ of inquiry issuing to assess the value of the goods, instead of providing "that ...e same shall be .assessed as hitherto. " See notes to Rule 204 as to default. In Ivory v. CVuils/innk, W. N., 1875, 249, the action was for rent, and for the return of certain chattels ; the defendant had failed to appear ; fu-/d that the plaintiff was entitled, under this Rule, to have judgment for the rent and for the return of the goods. Jiee Dix V. Groom, in note to Rule 204. 5. Where in any such action as in Rule 4 mentioned th jre are several defendants, if one of them makes de- fault as mentioned in Rule 2, the plaintiff may enter an interlocutory judgment against the defendant so making default, and proceed with his action against the others. And in such case, damages against the defendant making default shall be assessed at the same time with the trial of the action or issues there- in against the other defendants, unless the Court or a Judge shall otherwise direct. (R. Sup. C, 1875, Order 29, R. 5-) This Rule is the same as the English Rule, and is in accordance with the former practice in the Common Law Courts. See notes to Rule 204. ' 6. If the plaintiff's claim be for a debt or liquidated demand, and also f detention of goods and pecuniary damages, or pecuniary damages only, and the defen- dant makes default as mentioned in Rule 2, the plain- tiff may enter final judgment for the debt or liquidated demand, and also enter interlocutory judgment for the value of the goods and the damages, or the damages only, as the case may be, and proceed as mentioned in Rule 4. (R. Sup. C, 1875, Order 29, R. 6.) Same as the English Rule. See notes to Hulo 204. , . • If there are several defendants, and some only make default, the plaintiff should proceed against them under Rule 212. 345 Bnles 206-208. 11 207 Where several de- fendants. 208 Where debt and damages claimed. i '"I i' .'.'il . h i HI /-I ■'! ' ! if ■i ■ ' ! -: ■ XM 346 ONTARIO JUDICATURE ACT, 1881. Rules 7. In an action for the recovery of land, if tlie 209-211. defendant makes default as mentioned in Rule 2, the 209 plaintiff may enter a judi^ment that the person whose defendant in title IS asscrted in the writ of summons shall recover kuJr *^"' possession of the land, with his costs. (R. Sup. C, 1875, Order 29, R. 7.) Identical with the English Rule. 210 When) claim 8. Where the plaintiff has indorsed a claim for for land and /, , '■ ^ , , r l i ,- damages, mesne pronts, arrears ot rent, or damages for breach of contract, upon a writ for the recovery of land, if the defendant makes default as mentioned in Rule 2, or if there be more than one defendant, and some or one of the defendants make such default, the plaintiff may enter judg;ment against the defaulting defendant or defendants, and proceed as mentioned in Rules 4 and 5. (R. Sup. C, 1875, Ord. 29, R. 8.) Same as English Rule. The judgment where it is for a liquidated sum for arrears of rent, may, it would seem, be final iu the first instance and not inter- locutory as under Rules 206 and 207. Where some only of the defendants make default it is not quite clear whether the plaintiff can enter judgment against them for re- covery of the land, but it would seem that at any rate he may pro- ceed as to that part of the claim under Rule 212 (see Gosset v. Camp- hell, W. N. 1877, 134). 211 Other aotioQB. 9. In all other actions than those in the preceding Hules of this Order mentioned, if the defendant makes default in delivering a defence or demurrer, the plain- tiff may set down the action on motion for judgment, and such judgment .shall be given as upon the state- ment of claim the Court shall consider the plaintiff to be entitled to. (R. Sup. C, 1875, R. 10 ; G. O. Chy. No. 270.) This Rule is identical with the English Rule. The motion for judgment is provided for by Rules 315, et seq. Notice of this motion was held by the Master of the Rolls not to be necessary in Oillott v. Ktr, cited, 6 Ch. D., 695, and by V. C. Malius in WUlkitns v. CardweU, W. N. 1877, 140. The contrary was afterwards held by Hall, \'.C., in Parsons v. Harris, 6Ch. D. 694, which has been followed in this Province iu Burritt v. Murdock, 9 Pr. R. 191. See note to Rule 315. Two clear days notice seems all that is necessary (see Parsons v. Harris, 6 Ch. D. 694 ; Daubney v. Shuttkworth, i Ex. D. 53 and note to Rules 315 and 407) Where a defence is struck out for non-compliance with an order to produce under Rule 236, the defendant is in default under this Rule [Fisher v. Hughes, 25 W. R. 528). DEFAULT IN PLKADING. 347 Proof by affidavit of the allegations contained in the stcatement Enlea of claim is unnecessary ( WiU'mms v. Brisco, 29 VV, R, 713 ; 17 C. L. 212-214 J.47S). 212 Where sevi-ral de- fendants, and one makes de- fault. 10. Where, in any .such action as mentioned in the last preceding Rule, there are .several defendants, then, if one of such defendants make such default as afore- said, the plaintiff may either set down the action at once on motion for judgment against the defendant so making default, or may .set it down against him at the time when it is entered for trial or set down on motion for judgment against the other defendants. (R. Sup. C, 1875, Order 29, R. 1 1 ) This is identical with the English Rule. See the Rule applied in Ii<' Smith, Bridnnu v. Smith, W. N. 1876, 103 where one defendant made default and the others admitted the plaintiff's claim by their defence. See National Provincial Bank v. Evanx, 51 L. J. Ohy. 97 ; 30 W. K. 177, where dofaulting defendant was an infant, and the action was set down under English Order li> r. 17 (not adopted in Ontario) for trial as against him, and motion for judgment against other defend- ants. The practice in Ontario is without express provision the same. See also Re Fitzwater, 52 L. J. Chy. 83. Where a defence is put in before the moticm iinder tliis Rule is made, though irregular, it cannot be treated as a nullity (Gill v. Woodfin, W. N. 1884, 20 ; Graves v. Terry, 9 Q. B. D. 170 ; iiSL's and what tiniu O R D E R X X V I . PAYMENT INTO COURT IN SATISFACTION. I. Where any action is brought to recover a debtor lit damages, any defendant may at any time after service of the writ, and before or at the time of delivering his defence, or by leave of the Court or a Judge at any later time, pay into Court a sum of money by way of satisfaction or amends. Payment into Court shall be pleaded in the defence, and the claim or cause of action in respect of which such payment shall be made shall 349 Rules 215, 216. PLEADING PAYMENT INTO COURT. be specified therein. (R. Sup. C, 1875, Order 30, R. i : R. S. O., c. 50, ss. 108- 1 10 ; Ih. c. 56, s. 5 ; Reg. Gen T. T., 1856, Nos. 11-13, Ont.) This Rule ia identical with the English Rule. It makes several changes in the previous practice. (1) It permits payment into Court in any action brought to recover a debt or damages ; whilst formerly, that course was not permitted in actions for assault and battery, false imprisonment, liliel, slander, malicious arrest or prosecution, dtbauchiug the plaintift's daughter or servant ; or in actions for Ebel, except in certain cases provided for by Lord ('ampbell's Libel Act, G & 7 Vict. c. 96, s. '2[\X. S. O., c 56, s. 5). (2) Another change is, that, formerly, money could only be paid into Court at the time of pleading ; while under this Rule it may, without leave, be paid in at any time after service of the writ, and before or at the time of delivering the defence, or by leave at any later time, (3) Formerly, one of several defendants had to obtain leave to pay money into Court ; though a sole defendant, or all the defendants jijintly, could pay into Court as of right. The present Rule removes this distinc- tion. In general, a defendant may now, by his statement of defence deny the plaintiff's causes of action, and at the same time plead i)ay- ment into Court in respect of the whole or any part of them (Berdan V. Grei'iitvuod, 3 Ex. D. 251 ; Hawkedty v. Bradshatu, 5 Q. B. D. 22, 302). This Rule is of general api^lication, and applies to actions for libel (Haivkeskij v, Bnulshaw, .supra, and see note to Rule 161). Ijluery, however, in some case'^ " ich as actions to try a right or where frauil is charged {Berdan v. Greenwood, 47 L. J. Ex. 628.) The principle is, that the Court ought not "to preclude defendants in actions from saying ami doing that which, as practical men, before the action they might reasonably say and do, viz., say that they en- tirely deny a jjerson's right to s\ie them, yet pay, or offer to pay, a sum of money as the price of peace, autl for the prevention of further litigation" [Berdan v. Greenwuod, 3 Ex. D. 259). In Spiirrv. Hull. i Q. B: D. 615, an action for nuisance, the defendant was not allowed to plead payment into Court together with a denial of the right of action ; but the subsequent cases make the propriety of that decision at least doubtful. (See also Potter v. Home and Colonial Ins, Co., cited 2 Q. B. D. 622.) Where the plaintiff' claimed for distinct items of work and labour alleged in separate paragraphs of the statement of claim, and the , defendant paid money into Court, it was held unnecessary to specify in the statement of defence hoM' much was paid into Court in re- spect of each head of the claim ( Faraire v Loibl, 49 L. J., C. P. 481). 216 2. Such sum of money shall be paid [as hitherto, How paid, into the proper bank or] to the proper officer, and the proper officer shall give a receipt for the same. If such payment be made before delivering his defence, the defendant shall thereupon serve upon the plaintiff a notice that he has paid in such money, and in re- spect of what claim in the Form No. 2i, in Appendix (B) hereto. (Comp. R. Sup. C, 1875, Order 30, R. 2 ; H. S. O., c. 50, ss. 109, 121.) w 1 1 1 i i v.\. I I I . ■■! !* 1 m Ml ; •' -'1 -.1 ; i iiil!: 350 ONTARIO JUDICATURE ACT, 1881. Rule 217. This Rule is substantially the same as the English Rule, except as to the passage in brackets, which is not in the latter, 'i'h,. j,rg. sent method of paying money into the Common Law Courts is regulated by U. S. O., c. 50, s. 121, which is printed in a note to Rule 476. 217 Payment out. 3. Money paid into Court as aforesaid may, unless otherwise ordered by a Judge, be paid out to the plain- tiff, or to his solicitor, on the written authority of the plaintiff, {a) No affidavit shall be necessary to vcrifv the plaintiff's signature to such written authority un- less specially required by the [officers of the Court, or one of the officers, whose duty it is to sign or counter- sign the cheque]. (Comp. R. Sup. C, 1875, Order 30 R. 3; R. S. O., c. 50, s. 109 ; Reg. Gen. T. T. 1856, No! II, Ont.) This is the same as the English Rule, except that, instead of the passage in brackets, the English Rule has merely the words "Officers of the Court." (a) With the exception of the words ' ' unless otherwise ordered by a Judge" (as to which see Coughlan v. Morris, 6 L. R. Ir. 405), this Rule is down to (a) the same as the enactment on the same subject in Rev. Stat. Ont., c. 50, s. 109. The practice in the Accountant's office is to require the affidavit here mentioned, unless satisfactory reasons are given to dispense with it. Where a defendant traversed the causes of action and also paid money into Court in satisfaction of the whole of the plaiutifFs claim, the plaintiff was held entitled to draw it out of Court, though not accepting it in full satisfaction and to proceed M'ith the action (Cowjhlan v. Morris, supra ; Emdvn v. Carte, 19 Ch. D. .Sll ; 45 L. T. 328 ; 30 W. R. 17). The same was held where defendant pleaded payment into Court with a counter claim(J/?t/caAy v. Perry, 8 L. R. Ir. 147). If the plaintifif fails in the action he is neverthe- less entitled to retain the money [Emden v. Carte, supra ; sue also Berdau v. Oreenivood, 3 Ex. D. 251). The practice under this Rule is, therefore, unless a Judge other- wise orders, similar to the former practice at law. The English liules of 1883 make different provision (see Eng. Rule 260) ; so tliat the cases decided under those Rules will not apply in Ontario. By the former Common Law practice, money paid in with a plea of payment into Court belonged to the plaintiff in any result of the action. He was entitled to it though he was non-suited {Elliot v. Callow, 2 Salk. 597 ; see Cox v. Bohiiison, 2 Str. 1,027 ; Emden v. Carte, sup.); or though defendant died during the action, (Pdlmer V. Reiffenstein, 1 M. & (jr. 94) ; and if the plaintiff died his executors were entitled to it {Knapton v. Drew, Barnes 279). It has been said that the defendant can in no case recover it back (See per RuUer, J. in Malcobnx. Fullarton, 2 T.R. 648; see Cox y.Robitison, sup., Vawjhan V. Barnes, 2 B. & P. 392. ) To this, however, there is an exception in case it is paid in under a mistake, and if the defendant can clearly and satisfactorily shew that it was so, the Court or a Judge might order it to be refunded to him (Arch. Pr. 1,093-4). The Court or a it so that the PLEADING PAYMENT INTO COURT. 361 .hiilge might also, it" the plaintiff failed in his action, impound it Unjj 2I8. to answer defendant's costs (see Anuii, Barnes 280, and Green v. CoiKjhkin, I Jones Rep. Ex. (Ir. ) 283). ai8 4. The plaintiff", if payment into Court i.s made Acceptanm before delivering a defence, may within four days after ^"onf"'^'"'' receipt of notice of such payment, or if such payment i.s first stated in a defence delivered then, may, before reply, accept the same in satisfaction of the causes of action in respect of which it is paid in ; in which case he shall give notice to the defendant in the Form No. 22, in Appendix (B) hereto, and shall be at liberty, in case the sum paid in is accepted in satisfaction of the entire cause of action, to tax his costs, and in case of non-payment within 48 hours, to sign judgment for his costs so taxed. (R. Sup. C, 1875, Order 30, R. 4; K. S. O., c. 50, s. I ii.j This Rule is identical with the English Rule, and its provisions are the same in substance as those heretofore in force in the Common Law (Jourts. Where a defendant denies the alleged cause of action, and also pays money into Court, and it is found in the action that the money paid in was enough to satisfy the claim, the plaintiff should have his costs of the action up to the time of payment into Court, and the defendant his costs after that time (BucMon v. Wujija, 4 Ex. D. 174 ; 886 also Gretton v. Meex, 7 < -h. D. 839). In B nekton v. Hiyrjs, a previous decision of Lanyridije v. Campbell, 2 Ex. D. 281, was referred to, in which the defendant had been allowed the whole costs of the action. The Judge at the trial has, however, a discretion to give defendant costs as well before as after payment into Court, and where judgment was simply for defendant with costs, the Taxing Officer was held to have no alternative but to tax to defendant all his costs (.'^matl v. Lyon, 20 C. L. J. 114 ; 4 C. L. T. 198). In case the plaintiflf does not accept the amount paid within four days, his absolute right to costs is gone, but he may still apply for costs under Rule 428 ; and the Judge will have a discretion in the matter, having regard to the particular circumstances (Greaves v, Flnniny, 4 Q. B. D. 226). In Broadhurst v. Willey, VV. N. 1876, 21, defendant sent a che(iue for £33, which plaintifi' refused to accept, demanding £43, for which he issued his writ. He afterwards took the £33 paiil into Court. Lindley, J., disallowed the costs, holding that he was empowered to do so under Kule 428, for good cause shown. ' In Phospho-Guano Go. v. Fitzgerald, 6 L. R. Ir. 461, where £86 was claimed and the defendant said £42 only was due, and obtained leave on payment of that sum into Court, to defend as to the balance, and the plaintiff accepted the sum paid in as part payment, and pleadings had been delivered, but issue not joined, the Court refused to order the defendant to pay costs up to the time of pay- ment into Court. In Nichols v. Evens, 22 Ch. D. 611, it was held that these Rules only apply in the case of an action for a debt or damages ; that m) 1- m: ::! ■ 1 ■ ; - ;■ . ; ! il '11 352 Bnles 218, 219. Former practice. ONTARIO JUDICATURE ACT, 1881. where an account waa claimed, these Kules not applying, the Court had a discretion under Rule 4'J8 as to the costs even thougli the plaintitF accepts the money paid in in satisfaction of the wliole cause of action. Upon the application of defendant (after receiving notice of acceptance of the money in full) to stay the action and for payment of costs by the plaintiff, Fry, J., holding aa above, gave the plaintiff costs to delivery of defence, and ordered him to pay the subaequent coats. Where the plaintiff's solicitor by mistake accepted money jiaid into Court and signed judgment for coats, the judgment, upon apjili. cation of the plaintitl was set .aside upon payment of costs, and the plaintiff allowed to proceed with his action {Emery v. Wcbskr, •) Ex. 242). Where payment in is pleaded as to part only, the plaintiff cannot proceed at once to tax the costs as to that cause of action (Cautif v. Gyll, 5 Sc, N. R. 819. ORDER XXV II. DISCOVERY AND INSPPXTION. In general discovery is obtained by interlocutory proceedings as ancillary to the main object of an action, but an action for discovery may, in a proper case, still be brought (Orr v. Diaper, 4 Ch. I). 1)2 ; Anderson \. Bank of Bril'iKh Cuhiinhia, 2 Ch. I). 644.) For the grounds of objection to such an action see Maddock's Chy. Pr. Srd. ed. 268. The Judicature Act has made no alteration in the right of the parties to discovery by examination, (see Atti/. Gen. v. Gnnkill,'20L'h. D. 519; also Hunnimjs v. Williamson, 10 Q. B. D. 459, where it was held that in an action for penalties the plaintiff could not administer interrogatories as he had not the right before the Act). The general rules as to privilege in eridence apply in examina- tions for discovery and in the production and inspection of docu- ments . A party has the right to examine for discovery not only for tlie purpose of obtaining information from the opposite party as to material facts which are not within his own knowledge, and are within the knowledge of the opposite party, but also for the purpose of obtaining from the opposite party, admissions which will make it unneceaaary for him to enter into evidence of the facta admitted (AtUj. Gen. V. Gaskill, 2()Ch.D. 5\{);Hellier v. Ellis, W. N. 1884, D.) The old modes of procedure by oral examination in the diflerent Courts are not necesaarily inconsistent with the Judicature Act or Hules, or with each other, and therefore may continue to be used and practised in the High Court in such and the like cases and for such and the like purposes as those to which they would have been applicable in the former Courts. (See s. 52 of Act and Hank of B. N. A. V. Eddy, 9 Pr. R. 396, 399 ; Davis v. Wickson, 9 Pr. R. 219.) The old practice in Chancery was for the bill to contain interroga- tories, to which the defendant was bound to give full answers uiion oath ; and, on the other hand, the defendant could only avail him- self of the plaintiff's oath l)y filing a cross-bill containing like inter- rogatories. This practice was changed in this Province by the General Orders of the 3rd of June, 1853, which substituted an oral examination of each party at the instance of hia opponent. The DISCOVKHY. 363 tlie the im- Orilers for this pur|M)se were afterwards embodied in the ( 'onsoli- r^Ij 219. (lateil Orders I.S8-148, printed hifni. V>y the Ailiniiiistiiition of Justice Act, a siniihir praetioe was provided for tin- < '(niits nf Cuiu- miiii IjHW ; and the practice in tliose (!ourts is now rcgiilatid Ky I!. S. (). c. 3(1, sec. lot), ft Mcq., as amended I)y4l Vict. c. S. hw.h. S. iV ;». Hut in .sonic particulars the Orders ditler from the .statute; and as the Rules leave the old practice on this sul)ject to rci,nilatt' tUv ruture practice it is necessary to refer to })otli the Statute and tin- (Jnlers. The chief dillerences appear to he these : (1). By tiie Statute an allidavit i.s recjuired from tliv exaiiiininf^ I'lilVienccH party, his attorney or agent, statiny tiiat the ileponcnt, l)elieveH that '"i"'',''"/"''' the party purposing to examine will derive material hunetit from the I,',',,] ^.' ^' examination, that there is a good cause ol action or defence ujioii tlie iimtici!. merits ; and, if the application is ni.ide on the part or tiie defind- ant, that the examination is not sought f(»r the i)urpiis(,' of dilay. Xo affidavit was re^uireil in Chancery. In the kind of cases over which Chancery had fin'inerly exclusive jurisdiction it was found that an affidavit can he safely dispensed with, whiht the cuntrai-y has been thought to be the case in reference to the cascb usually brought in the other Courts. (2) By the Statute where the attorneys for both ])artie3 reside in the same county, an order for oral examination miglit be made by the Judge of the C'lmnty Court. The Chancery Orders eontiiin no such jtrovision. Under the Judicature Act the authority ol County Court Judge in the matter jirobably applies to all Divisions (see Rules 4'2'2 (a) and 4'2.S). (3). The Chancery Orders provide that a person for whose mediate benefit a suit is prosecuted or defemleii, is to be regarded as a party for the purpose of the Orders. The Statute does not con- tivin this provision. Rule 2'24 (infra) makes such a provision witii respect to the production of documents. It will i»robably l)e held, that the Chancery practice on this point is applicable to all the Divisions. (4). The Chancery Orders provide for the examination of a plain- tiff at any time after answer ; and of a defendant at any time after answer, or after the time for answering has expired. The examina- tion under the Statute referred to is after "issue joined." According to Dans v. Wivkson, 9 Pr. I!. '219 as I'cported, exami- nation may be had in the ( 'hanccry Divisicm at the same stage of the cause as foi-merly under Chancery OrdiT 140. That was sufficient to decide that case, Ijut the opinion exi)ressed by the Master inChand)ers was wider, viz.: that the Chancery j)racticc under 0. O. 140 would now prevail in every action as it applied to an earlier stage of the proceedings ami was best fitted to elicit the whole truth in the matter in ([uestion. It would seem at any rate in accordance with sec. 52 to hold that the ('hanccry practice in this respect applies in actions of the kind formerly brought in Chancery, but that iicvertheless the examination may be held under an order as a more convenient mode of proceeding than by subpa-na. (See notes to sec. 52). The following is the text of the sections of the C. L. P. Act i-e- gulating the practice in the Common Law Courts. " 156. Any party to an action at law, whether plaintiff or de- Ro\. Stat. e. feudant, may at any time after such action is at issue, obtain an ^^' *• '^^• order for the oral examination upon oath, before a Judge or any 23 1.^ ■■ i I "I rr 354 ONTARIO JUDICATUHR ACT, 18>1, Exam, of piirtieii fill dlsuuvcry. I i Rule 219. "thoi- person Hj)t'ei!illy iiiiiiied by the Court or a Judge, of any party adverno in point of interest |or in o;v.se of a hody corjxn'ate of anviif the otticers of Hueh body corporate, 1 touehing tlie matters in (jiustion in tlie action ; and any party or otHccT examined, may lie furtiicr examined on his own l)elialf, or on hehalf of the i)ody corjjoratt! of which lie is an ollicer, in rehition to any matter rcspectinir wliich hu has ))een examined in chief ; and when one of several phiintilfs or v !' t'lu relief lie seeks, he may examiuo a defendant upon them, though there is no issue between that defendant and himself (/I /^j;a//(T'-r v. Dimuoml, 9 Pr. 11 274) A defendant whose interest is identical with that of the jjlaintiff is a party aa- rate property (Standard Bank v. McGuaitj, 7 Pr. 11. 35G). The examiner's office in England is not a public court, which any person may enter. By Imp. Act, 15 and 16 Vict. c. 8(j, an examina- tion was to be held in the presence of parties, their counsel, solici- tors, or agents ; that •was held to mean that all other persons are excluded (per Jessel, M. R., in Re Western of Canada OH Conipam/, 25 W. R. 787). See also Be Cambrian Co., 51 L. J. Cliy. *2'2l ; Re Greifa Brewer ji Co., 25 Ch. I). 400. See in Ontario as to excluding parties who are to be witnesses, Sivewrhjht v. Sivewriijht, 8 Pr. R. 81. "2. Such explanatory examination shall be proceeded with imme- diately after the examination in chief, and not at any future \ieriod, except by leave of the Court or a Judge ; and for the purposes of this section, when the officer of a body corporate has been so examined as aforesaid on behalf of such body corporate, such body corporate shall be deemed to be fully represented by such officer." Key. Stilt. (• 50, 3 150, sub-s. 2. Exam, of officera of .corporatiou. I DI8COVKIIY. 355 ( '• ruiMoiiH who liave wased to lio otHoera of a, corporation may be j^jg 219. exiiiiiiiitiil uiiilcr tlie loGth section of tlie Coniuion l^avv I'rocedure 4^ vict. c. 14 Act, in the saniu manner aa otticers." [4'2 Vict. c. 15, s. 7. |) i'he ». 7. t'liiiiieery OnlerM do not provide for tiiiti case. The examination of an olHccr or pant otllcer, or meinher of a cor- ponvtion in iMighind in obtained under a iiiile (Ord. Ml, r. Ct) not aildpted iiert', anil sometimes by making him a defendant (.see Man- clicfirr Viililc Tniririi PiffVo. V. Slaii(f, \V. N. Iii6'2,l'21 ; /ifik-fley V. Dixroinit ., VAVAx. I). !>!>). I inler tiie practice in Ontario, umler the above sections, or (Jhy. (i. (>. (5H, a mendier of a Co., not being an othcer or ex-otlicer, cannot lie examined unless a party, and it is improper to make an otHcer of iiCo. a party merely for the purpose of discovery, 8ee Oiy. (J. U, ();< (■"/'/•(( p. ;^iiO. liiiler R. S (). c. 50, s. 15(5, the suli-editor or assistant editor of 11 newspaper has been held to be an olHcer examinable for discovery ill an action of libel (MuitUuid v. Uluhi: Frinliuy Co.. U I'r. U. 'AH)} ; so also the chief engineer (Oakley v. Torontu (J. d- B., (i Pr. It. '2~)',i] ; a station master of a Railway Co. in an action for not delivering goods shipped (Hanisai/ v. Midland Jii/. Co., 19 C. L. J. .'5r»'2 ; M (J. [j. 'l\ 50;^) ; and in an action for price of goods which a defendant rffused to accept as beiuL'' worthless on their arrival (Milin'r v. (Hark anil It. T. li'ji ('o., 'A C. L. T. 215) ; but not an eutjine driver or pay- muster (McLean v. G. W. R'tj Co., 7 I'r. R. 358) ; or a tie inspector [Datud V. (.'. T. Ji'y Co., 6 Pr. R. 307). An order was made to examine the agent of a Bank where the contract in (juestion was alleged to have been made by him on the Hank's behalf (Vonmlidated Bank v. Neilon, 7 Pr. R. 251). It would seem that several officers of a corporation may be exam- ined where different matters are peculiarly within the knowleilge of ilitferent officers. (See Cumpaynic. FinancUre, (i-c. v. Peruvian Gaano Co., 28 Sol. Jour. 410). " 157. Where the attorneys of the plaintiflP an i defendant reside in tlie same county, an order for oral examination under the pre- j, ''jq 'j, "| j^ uediiig section in any action pending in either of the Superior Courts of Law may be made by the Judge of the County (Jourt of the said county but this section shall not apply to the (!ounty of York." The Chancery Orders do not contain any corresponding provision. For ihe authority of the County Court Judge under the Judicature Act, see Rules 422, 423. " 158. The order for the examination of a party adverse in point of interest, or of the officer of a corporation, referred to in section ^^^- Stat. 156 of this Act, shall be granted as of course upon the production, ^' ^^' *" by the party purposing to examine, of an affidavit of such party, or ^xHiiiiue" of his attorney or agent, stating that the deponent believes that the party purposing to examine, whether plaintiff or defendant, will derive material benefit in the action or other proceeding from such examination, that there is good cause of action, or of defence, upon the merits, and, if the application is made on the part of the defend- ant, that the examinaticm is not sought for the purpose of delay." This order was not required by the Chancery practice. "159. The examination may be had before a Deputy Clerk of the Crown, or Special Examiner or Local Master in Chancery, without an Rev. Stat, order, but m such case the Deputy Clerk or Special Examiner or «• 60, s. 15». Local Master, upon the affidavit hereinbefore required being filed with him, may issue an appointment for the examination of the party, and he shall return or keep (as the case may require) the said affidavit I 'Hi :i K 356 ONTAHIO JCIUCATUKI: Ad'. I HS I Rule 210. I'firtieM out of tlio Jiiris- iliction. .•iiiil in with tlif ilcpoi^itioiiM tiikfii imhIlM' tin; i^aiil ii)i|iiiiiitini'iit ; iiinl tlic piiitv purposinj^ tocxiiiiiiiH' iimy sci vc the (nirty t<> Im' tMiiniiuil with a Hiiiiixi'iiii hikI n copy of the ii|>|ioiiitiiient. See us to fees where cXiiiniiiatioii is lielnre a Coiiiitv Kllle r)4.'<. 41 \'ict. e. M H. !> (Oiit. i, iscc |i. ;{."•!») proviiK's tlmt Mh may order the ex.uiiiiiatioii ol' purtiis reMidiiiu out ot neitai i<> such cases tlie exaiiiiiiatioo may l>< oi'.U'it'il to take place at simIi place ami in siieh iiiamier as umy seem just ami convenient. See almi Ml, nil \. Miirrhiw, •> Pr. It. •_'!(». A party out ot" tiie jiirisdii'tion Imt in the Province of' (^^tlel)e(^ mnv hy virtue of ( '. S. (' c. 7!* ». 4, 1»' '•umpelhMJ hy snl)p(emito affeiiil for (vx.-iminatioii in Ontaiio, at sncli |>lace as in the opinion of tliu Court is most expoilient, ami not neiissariJv that which is nearest to his place of aho.le (.Vw/V/i v. Itnixorh, «» IV. I!, !»7 ; H. „l li. .\ . i V. AV/r///, !» I'l-. |{. :mi). Where the party is out of the jurisdiction elsewlieru than in (^tu, - hec, a Special Kxaniiner may l)y order l>e appointed to take the ex- amination (see 41 V. C.8, ». H, ■-■«/'<•") or a commission may i)e issued (liiiiK/Kc FmDCo-Einiptit'HUv . /.i'(.<'-/,ii\ \V. \. l.S71>, I.S:^ ; 41 I.. T. 4r»H ; 'J8 W. J!. I3:V; see also Xm/hi v. n I'r. 1.'. ]> .S!»!»). ( )rdinarily tlie party can oidy he rt(piired to atteid ht foie siiiiie othcer ill the county in which he resivUs, but for special reasons nn an a})|)lication in (!ijanibers. he in.iy l)e ordereil to attend elsewlieru (see t'tnaphell v. TurLrr, 7 Pr. It. l.S." ; h'lilltKilii'r v. (Uiirdner, 'J Cby Ch. 480; McDcrwidy. Mdhnuhl. 'IV.hy. Ch. ;{7-2). " HJO. The party so exauiiidnf.' as afnrcsaiii, shall cause u copy of f. 50, 8. 160. the onler and appointment (or of the ap|)oi!!tnient where no order ^"i'l^ '."V'.*^ is recjuired) to be served upon the person so to be exiunined, and "" *"' ^' upon his attoniey.where he has appeared by attorney, at least forty- eight liours before the Inmr appointed for the examination, and shall pay to the person so to l>e examined the proper charges for conduct money." In computing tlie forty-eight hours, Sunday dues not count under Rule 455 (Loirltto^ v. /iarnni/tun, 2(» C. L. .1. i;U;4('. 1,. '!". l!l!»). Service on the S(dicitor at D.SO p.m. on Saturday for Tnestlay at '2 p.m., was hehl insulticient, the service having to be treated as if efiected on Moiuhiy (tSeuu v. Heuift, 8 Pr. II. 70). In actions which formerlj- wouid have been brought in Chancery, or at any rate if now brought in the ( 'liy. I dv., the former Chancery practice is still in force and forty-eight Iniurs notice only is neces- sary to be given to the solicitor under ( hy ( J. (). '2<)7. The party to l;e examined, may be sann;i;>ned under a subpoena as formerly and is only entitled to rea.soiialjie notice according to circumstances ( l\"iL/. Co., 4 ('. ij. '1'. 98) ; but where a party who has no solicitor is recjuired to attend, he shouM liave forty- eight hours notice ( Wafnon v. Ham, I (hy. (^h. "298). A party taking out an onler to examine and failing to appear on an appointment thcieunder, loses the l)eneHt of the order and must obtain a new one (Ferguson v. Elliott, 7 Pr. li. 7). When an ex- amination is adjourned sine die re-service of an appointment and payment of conduct money is necessary in order to compel attend- ance ( Whitehead v. Harte, 22 June, 1882, GloheJ. Rev. 8tat. IHSCON KKV 357 " U5I. Any jtivrty <>r pTHftii to Ih- cxaiiiiiifd oriilly umltir tin; pni- j^jig 219. viHioiiH of tliis Act slmll lir hu txiimiiud l)t;f()ii' tlio .Fiiilyu or othur i{,.v, stat. peisKii spociiillv n.uncil in tin; onltr for fXdininfition, of, win re no r. '>0, •. 181 (inli'i' is rr(|iiirfil, liffnif the Di'piity ( 'Icrk of the ( 'fown or Sjn'ciiil oiUcith i Hx.iniiner or Lonil MimttT in ( 'hanriry ; iind shall, if so rf(|niicil l»y '"'' iiti<'0, prodnci! on tlif fxaniiniition all hooks, papers ami ilomnnentx (.(i^,.,, ^,., ti> bo whiili he vvoulil lie iioniiil to proiluec at the tiial under a stiliinrntt (lures tern III ; and the party or person so examined urallv shall he sulijeet to (rross-exainination and re-exatuination ; and sueh examin- ation, cross-examination lunl ri'-examiiiation shall he eoiidiieted as iieaily as may he in tie' ni'"!' i.ow in use in Courts of ( 'oiunion Law (in a trial at Nisi I'riiis. nr in < 'h.uicery at the hearing of a cause." Where an examinntion pursuant to this section takes jilace hefore till' l>''puty < 'Icrk of the ( 'rowii, though not ilesignateil in the order M> acting in his otliiMal capa<'ity. ili" fees for sutdi examination were fdiinci'iy payalilc ui stanijis and not in money \ l)i miinrk v. MrCiiiiiiiilii/ H I'r. I!. IMtii; l»ut, in the case of a Deputy Clerk not paid hy salaiy, this is not the case since the .lud. A(^t (S'jc s, (54, suh-sccs. r> ami Itt. .<«///>' p. lI'Jl, See also Kule r>4li. " ]&!. Any iiarty or peison rifusing ov neglecting to attend at the Hev. Stat, time and place apiiointed for him examination, or refusing to he sworn ''■ ***• •■ ^* or to answer aii\ la« ful c(uestion put to him iiy the examiner or hy .'^'!'^'"",'' '^ any party entitled sn to do, or his "ounsid, .ittorney or agent, ■■'hall ',,,j^^yj;y liL' deemed guilty of a conti'iiipt of ( '..urt and proceedings may he forthwith had hy attachment.'" (See sec. \'i) d/i ; H \'. c. 8, s. D, and Chy. Order 144. in/'ni.) It has hcen hehl that proceedings to attach must he taken hefore the Court and not before a Judge in Chun hers (.)/(';'(7Kn//.s' Hmikx, P'urnoiu 8 I'r. R. 12M); hut this decision (h)es not seem in ]>ractice to have heen adhered to. The niotiim is made to a .Indge in Chandiers in a case of non-compliance with .'i piMcipe order, or order in Chambers ; and an application to the < 'ourt is only necessary in case of breach of an order or rule of the ( 'ourt. The Master in Chaml)ers has not the jurisd.ietion in this res]tect formerly possessed by the Referee in chaudxis i Ki-i/V \. IVnnl, IS (' L.J. IU(i ;2C. L. T. 200). " 1<)3. If the party or person under examination demurs or objects Rev. Stat. to any question or (questions put to him, the (piestion or (juestions so •'■ ^''> •• ^W- put, and the dennirrer or objection of the witness thereto, shall be nt'iaurrer or taken down by the examiner and transmitted by him to the oftice of" ■'^*^""" *" the Court, to be there Hied ; and the validity of such demurrer or objection shall be decided by the Couit or a .hidge ; and the costs of and occasioned by such denmrrer or objection shall be in the dis- cretion of the Couit or .ludge." (See Chy. Ord. No. 148, hi/rii). A i»artv may object to answer questions tending to criminate [Fishn- V.' Otvc'iK 8 Ch. IJ. Mr^ ; Allhuscti v. Lnlnnirhvn', 3 Q. B. J). 6,i4). The objection must be made on oath ( Wihh v. Eiifit, 5 Kx. T). 23) ; but it is sutlicient if the j)erson swear that the ansM'er to the (HKstion • might' tend to criminati' him ( Ldiiih v. Munntir, ' ), and Hunnbm v. Wi/liamson, 10 (^. B. D., 45«>, 462. "1(54. The depositions taken upon any such oral examination a.i aforesaid shall lie taken down in writing by tlie examiner, not orili- narily hy tjuestion and answer, but in the form of a narrative u.v- pressed in the first person ; anresence of the parties, or of such of th(;m as may think tit to attend. " (2). In case tlie pai'ty or person cxamine. Hvery Judge, officer, or other person taking examinations under this Act, may, and if lu od be shall, make a special reiiort to the Court in which such proceedings are pending, t(uiching such ex- amination, anil the conduct or absence of an;, witiiess or other jier- son thereon or relating thereto ; and the < 'ourt shall institute such proceedings and make such order ujion such I'cpoit as justice may require, and as may be instituted and made in any case of contt'inpt of the Court." (Sec Chy. Ord. 144. KKi n and !♦!() h.) See Mi'rchiint-^ lion/' v. Picrmtt, 41V. c. 8 s. 8. Depositions in short- hand. in noti 8, sees to sec. I7<) tf. 8 and J), introiia. Notwithstanding anything in this Act containt 1. where an examination in a cau'sc or proceeding in any ( 'ourt is taken hy the examiner, or any other duly authorized person, in shorthand, DISCOVERY. 359 the examination may be taken by question and answer ; and in such j^jg 219. cases it shall not be necessary for the depositions to be read over to or signed by the person examined, unless the .Judge so directs, where the examination is taken before a Judge, or in other cases, unless any of the pai'ties so desires. " 160 h. A copy of the depositions so taken certified by the person taking the same as correct, shall for all purposes have the same eft'ect as tlie original depositions in ordinary cases." " 170 a. If any person fails without sufficient excuse to comply witli n v. v.. 8 ».',>. an order for examination, discovery or ins{)ection, he shall, if a ijlaiutift', be liable to have his action dismissed for want of prosecu- tion, and if a defendant, to have his defence struck out, iind to be placed in the same po.sition as if he had nut defended, and the Court or a Judge may make an order accordingly." This provision does not a])ply in case of disobedience to a notice to jiroduce given under l>. S. U. c. 50, s. 1(51 {MerrhauCs Ii■.! i , '' M ' ' 1 1 t ,4 mil Tj'.' •I'L S ' 360 ONTARIO JUDICATURE ACT, 1881. Rule 219 "141. A i».arty so examined may be further examined, on his own Cli. Ord 141 hehalf. in relation to any matter respecting which he has been examiiK'd in chief." So also by s. 156 of the Statute. Cliy. ' )rd, 6;t ' ' (hi. Where a bill is filed against a corporati(tn aggregate, no officer of the corporation is to be made a defendant for discovery only ; Imt any otticir who niigiit by the former practice have been made a de- fendant for the purpose of discovery, may be examined by the plaiutirt' in the same way as a party after the answer of the corpo- ration is liled. or after the time for tiling the same has expired." See notes to 1'. S. (). c. 50, s. 150, supra. Wlierc orticers are personally charged with complicity in wrongful acts, and danuigea are claimed from them, tliey may be properly made dctendant.s. This ()r4 (Jr. 5M1)." Chy. onl. i.i "04. Where a bill is liled by a corporation aggregate, the defen- dant may after filing his answer, examine for discovery such officer of the cn, or refusing or neglecting to obey an order for ]>roduction of documents, may be punished as for a contemi»t |and tlie party who desires the examination, or jjro- duction, in addition tf) any other remedy to which he may be en- titled, may apply to tlie Court, upon nioti(m, either to have tlie hill taken pro ci)iife,tst>, or to have it dismissed accorditiL' to circum- stances |." The first part of this Order is to be found in Mibstance iu sec. 102 of the Statute. The amending .Act 41 V. c. 8, s. 9, con- tains provisions corresponding with the passage in brackets. See notes to Rule 230. Ch. Ord. 14.') "145. The Court uptm such application, may, if it thinks fit, order either that the l)ill be taken pro cniif'e.s.io, or that it be dis- missed, as the case may be ; or make such order as seems just." Cli. Ord. I4ii " 140. Wliere the examining party uses any portion of the ex- amination so taken, it shall be compet^jnt for the party against whom it is used to put in the entire evidence so taken, as well that given in chief as that in explanation." This accords with the practice under the Statute. (S'ee sen. 101, ttupru). But see now Rule 239, and note to that Rule. Clu Ord. 147 " 147. A. party to the record who admits, upon his examination, thai he has in his custody or power any deent., !»)()(/, .sapra, p. .V)S). 2. Ihe costs ot every exammation of parties or of co.sts of pro- officers of corporations before the trial, or otherwise |j\",'-,".^[i*^,,''''" than at the trial of an action, as authorized b)' the present practice of the respective Courts whose juris- diction is vested in the High Court, shall be costs in the cause, but the Court or Judge in adjusting the costs of the action shall at the instance of any i)arty inquire, or cause inquiry to be made, into the pro- priety of having made such examinations ; and if it is the opinion of the Court or Judge, or the taxing master, as the case may be, that such examination has been had unreasonably, vcxatiously, or at unnecessary length, the costs occasioned by the examination shall be borne in whole or in part by the party in fault. The taxing master may make such inquiry without any direction. (Comp. R. Sup. C, Order 31, R. 2 ; R. S. 0, c. 50 ; ss. 156-167 ; Order 50, R. 7 infra). The tirst part of this Rule making the costs, costs in the cau.se i.t new and 3U[)ersedes R. S. (). c. 50, s. 1()7. The remainder of the Rule is the same in principle as the English Hule on the same sub- ject, varyiiiiz chieHy by referring to the examination, instead of re- ferring to interrogatories, which are the method of examination under the JOnglish practice. 221 3. It shall be lawful for the Court or Judge at any 0'''ti t'v time during the pendency of any action or proceeding, otdcM ' " to order the production by any party thereto, upon ""'"'" : *!i I If iitU v.u 362 ONTARIO JUDICATURE ACT, 1881. '. i .' I ' t i ! RnleB oath, of such of the documents in his possession or 221, 222, power relating to any matter in question in such action or proceeding, as the Court or Judge shall think right ; and the Court may deal with such documents, when produced, in such manner as shall appear iust. (R. Sup. C. 1H75, Order 31, R. ii ; S, &c., will therefore iu)t apply here. Nor does the English Rule permit the order to be obtained on pneci/if, l)ut retpiires an application, though not necessarily an affidavit, which, however, the Judge may re([uire, if he sees lit (Jolinnon v. ,S'm(7/(, 3t; E. 'I\ 741). Tlie English Order 31, R. 1 (not adopted by the Ontario Act) pro- vides for the examination of the 'opimsite party or parties" ; and it has been held, that a person whom the defendant, by his couuter- cl.aim, had made a defendant, was not "an opposite party" as be- tween him and the plaintitt', so as to entitle him to examine the plaintiff' under that Rule {Molloij v. KUhii, 15 Ch. 1). 162). The Ontario Rule 222 entitles any party to production from "the adverse party ;" and R. S. O. c. 50, s. 15(5, enabled a party to examine for discovery " any party adverse in point of interest," and it is pro- bable that production may be obtained under this Rule from any party who nught so be examined. (See notes to R. S. O. c. 50, s. I06, .s«//r«. p. 354 ; iinA Hamilton v. Noit, E. R. Hi Eq. 112 ; Kennedy V. Wakefield, 30 E. J. Chy 827 ; 22 L. T. 645 ; 18 VV. R. 884 ; and Hr'niham \. Jironson, 3C L. T. 311, where a defendant obtained •production f 10m a co-defendant a. .• McAllister v. The Bishop of Rochester, 5 < '. W \). H>4). ' fMf , •('■' '^■m ill m m i J 1; ■ 1 ■ i ^' "^ ^^H 1 ; ;■ 1 1. ^'! i ih < li m 364 ONTARIO .JUDICATURE ACT, 1881. Kde 222- By wlidrii aflidiivil to be made. 'Infant ami Lunatic plaintitl's. Affltlavit. Affidavit where no documents rroduced. Prodnction before Ket- ■erees. Under an order for production by the plaintiff, the plaintiff on tie record is the person to make the affidavit, and an affidavit from soni'; t)enofioial plaintiff is not a c()m[)liance with the order ( WU.soii v Riijlhlorir/i, 7 Q. B. D. 5o3). AVhere a plaintiff of unsound mind sues l)v a next friend, th«; defendant is entitled to an affidavit of ilocuments made hy the next friend, or l)yaome one aocjuainted with the facts (///'/(/('/(.sow v Ha/I. 10 Ch. D. 2.'jr> ; Trnri^s v IMI, 8 I'r. II. o50) A 'motion l)y the defendant was granted, that the next friend of an infant idaintiff might be ordered to make an affidavit ]•• \;ierenoe to documents in his possession {CroivfY. Bnnk of Ireland. 5 Ir. IX., Ecj. oTS ; Ch, App. ) liut see Imiraw v. LHth'. 11 (^). W. D. 'J;">1 ; and He CnrtieHU. LawUni v. A7*w.^, 48 L. T. 425, W. N. 188.S, (50; ."yj L. J. f'hy. .399 decided under the English Rules (Ord. 31, r. 12) not adopted here but wliici) provides tliat any ' party ' may apjdy to a Ju(lge for au order directing any other ' ]>arty' to tlie action to make discovery on oath of the documents which are or have been in his possession, etc., relating to any niiitter in ([uestion in the action. Where it is sought to remove a next friend of an infant he cannot be compelled to give discovery under tliis Rule for this purpose {Re CorsclUx, Lni'jtoii v. A,V»v.s 31 'W. R. 414). The next friend of a married woman is not bound to make the affidavit {Jiroum v. Capron, 6 Rr R. 203 ; Dan Pr. 1G82). In other Bes, where a plaintiff cannot make an affidavit, some pr>pp'' person must do so for the plaintiff, and proceedings will be staj, . . iiieanwliile (Ri-pnliHr nf LVxria v. //o//-', 1 App. ('a. 139 ; see Prhih'ai; V. U. .S". America. 1j R. 2 Va\. (559 ; U. S. America v. Wanner. L. R. 2 (Ihy. 582 ; Princess of Wales \. Earl of Liverpool, 1 Sw. 114; see also notes to Rules 221, 225). But it has been held that proceedings could not be stayed by a defendant in an action on a marine p(dicy until the plaintiff had o])taine I an affidavit of docu- ments from his assignor, who was not a party to the suit, nor under the jdaintiff's control, nor within the jurisdiction (/^^/'aa'f^;' v. Burrowa, 2 Q. B. D. ()24). Rule 228 infra, refers to the form of the affidavit to be made in pursuance of the order to produce. See notes to thit Rule as to what documents a party is bound tn produce. An affidavit must be made, thougli the party has no documents to produce It sliould not be made before the order to produce is issued {Kenneth/ v. Koi/al Ins. Co.. 3 Chy. Ch. 489 ; see Dohson v. Dohson, 7 Pr. R. 258,) and it should not in such case refer to schedules containing no documents (see Boi/ers v. Crookshank, 4 (', I;. J. 45). Where a claim has been ordered to be tried before a Referee, under the Act, the Court or Jmlge has still jurisdiction over discovery {lie Leiijfi, Hmoclifie v. Lehjh, 4 Ch. D. 661 ; DanviHiers v. Mi/ers, 17 Ch. D. 34i)). Qutvre whether the Referee has anv such p^wer. See note to Rule 245. Where an action and all matters in difference had been referred by consent and the plaintiff afterwards ap2)liet superseiled hv it and theiefore proper {China Tr discovery of documents is not enlarged by the Judi- cature Act, and where as a bill of discovery would not formerly lie, discovery of documents cannot now be had, r.r). in an action to recover statutory penalties (Httnniiif/s v. Williamson, 10 Q. B. D. 459). Documents produced, may be ordered to be deposited ordinarily Doposit of in tlie office in which the proceedings are being taken (and tlie '''"'""""nts. form of order issued in the C'li.ancery Division so directs), but not in the case of books in in the case of books in daily use ; Prestney V. Colchester, 24 Ch. D. 370, old records and books ; Waijner v. MaMm, 6 Pr. K. 188, documents in which other persons were inter- ested). As to restoring to parties documents left for inspection in the office of a Master, see Darling v. Darling, 19 C \j. J. 329. Probably orders to produc* under this Rule, as under Chy. C 0. 134 are for the purposes of the trial only, and will not be enforced for tlie purposes of a reference. In tlie latter case the Master to whom the reference is may l)e applied to for a direction for produc- tion (Hihkrhroom v. McDonald, 8 Pr. U. .389). As to discovery in interpleader proceedings, see notes to Rules 221 and R. S. 0. c. 50, s. 156, supra pp. 354, 302, 223 5. A third party who has been served by a P"S'."'"» »' defendant under Order 12, Rule 20, and has entered served by a an appearance, shall, for all purposes of, and incident ''''^'""**"*- to the production of documents, and to examination, be as between him and such defendant in the same situation as a defendant, and the defendant serving him shall, for the same purposes, be in the same situ- ation as a plaintiff; the time for taking out an order for production or for examination shall be after the party so served has delivered a reply, or where the ap- plication is on behalf of the defendant so serving such third party, the time shall be after the time for deliver- ing the reply has expired. The object of this Rule is to place a third party who has been served by a defendant, in the same situation as a defendant, for the purpose of the 222nd Rule. There is no corresponding Rule in England. As to the position of the plaintiff in regard to third parties see McAllister v. Bishop of Rochester, 5 C. P. D. 194, and Mi ;::,! ' ; ij ■. 1 f 1 1 .f-v--, i •■ ' i t ■•■■■' ii . ; ■T: t '■ 'i ■;■:■: ■ ;|i 1 1 - ii i: 1 H ■■ j m Hi ; i; ^xM m 1 366 ONTAKIO JUDICATURE ACT, 1H81. Boles 224, 225. noto t.) Rule '2'2'2. See jvlso limdln/ v. (Unrb-, 9 I'r. R. 410, where tliongli there was no direct issue between the plaintiff and a third j)artv, yet as the latter had all the rights of a defendant, and virtu- ally took his place, the plaintiff was allowed to examine him under Rule '224. 6. A person for whose immediate benefit a suit is [)rosccuted or defended is to be regarded as a party for the purpose of examination or production of 224 PorBoii for wliosti bone- tit suit \a coii(li;rt('(l II pio'ly foi' ™" '""-documents. kSame as G. O. Chy. No. 139 ; it is not among the English Rules. A person to be so examined, etc., must be directly inti^rested, (Menziea v. Toronto (6 Ottawa, (ilobe 1st. Oct. 1H81). An order was made where it appeared on affidavit that the plaintiff was agent for his wife as to part of the subject matter of the suit (Bowman v. Sutherland, Globe 10 Sept., 1881). In Joliitston V. Mc/ntosh, li C L. T. 313, J. L. was trustee for the E. estate for twenty years when the plaintiff was appointed in his place. The action involved the consideration of matters during the trustoeshij) of J. L. , and as to which the plaintiff was ignorant, and the M estate was indebted to J. L., so that if the plaintiffs suc- ceeded J. L. would be benetiteil. An order was made under this Rule for examination of J. L. See also Bradley v. Clarke, in note to Rule 223. Au order under this Rule for the examination of the plaintiff's daughter, in an action of seduction was refused, but under special circumstances was granted under Rule 285 {Turner v. Kyle, 18 C. L. J. 402 ; 2 C. L. T. 598). See notes to that Rule. 225 Affidavit (in byiu'oipoi'i- is a corporation ag'gregate, the affidavit shall be made tiun. 7. Where the party required to produce documents a corporation ag'gregate, the affidavit i by one of the officers of the corporation. This Rule is not among the English Rules, but is in conformity with what was the practice in Chancery (see 2 Dan. Prac, 5th ed., p. 1677, and cases there cited). A form of the affidavit by the officer is given in Schedule A, No. 35. This affidavit must be made by the proper officer of the Co. in compliance with an order in the usual form. That specially applicable to a Co. under the f )rmer Chancery practice (see Lindsay Petroleum d:c. V. Pardee, 6 Pr. R. 140) is not necessary (Harrison v. 0. T. Ji'y. Co. 2 C L. T. 104). See also Cooke v. Oceanic Steamship Co. W. N. 1875, 220. Where a bill was tiled by a Republican government, the defend- ant, having put in a sufficient answer, was held entitled to the usual affidavit of documents to be made by one or more of the Ministers or officers of the Government (Republic of Liberia v. Imperial Bank, L. R., 16 Eq, 179). The chief engineer of a R'y. Co. was held to be an officer within similar words in R. S. O. c. 50, s. 156 (Oakley v. Toronto, Grey de Bruce R'y. Co., 6 Pr. R. 253), but not the tie inspector of a Railway (Dalziel v. G. T. R'y. Co., 6 Pr. R, 307). (See notes to R. S. 0. c. 50, 3. 156 mcpra p. 355). PRODUCTION OF DOCUMENTS. It was held unreasonable to require a defendant Co. to answer in- terrogatories through a former director who was interested in tlie plaintiffs Co., the (!ourt intimating at the same time, that such per- son might be made a defendant ami discovery thus obtained (iV/nn- cheater Val de Tnirers Paving Co. v. Slugg, W. N 1882, 127). 8. The deponent shall be subject to cro.ss-exami- nation, and his affidavit shall have the same effect (as nearly as may be) as the affidavit of the party, unless where the Court or Judge sees reason for hold- ing otherwise. Not among the English Rules. 9. Persons who have ceased to be officers of a cor- poration may be examined in the same manner as existing officers. New. ]t would seem that a person who has ceased to be an officer can- not under this Rule and 42 V. c. 15, s. 7, (see p. 355) be examined for discovery unless the matters in resi)ect of which he is sought to be examined occurred while he was an officer {Ma'Uland v. Globe, &c., 9 I'r. R. 370). 10. The affidavit to be made by a party against whom an order for production has been made, shall specify which, if any, of the documents therein men- tioned, he objects to produce, and said affidavit may be in the Form No. 34 in Appendix (E) hereto, with such variations as circumstances may require. (Comp. R. Sup. C. 1875, Order 31, R. 13 ; G. O. Chy. Nos. 135. ^i7> and Sch. "G" thereto.) Corresponds with the English Rule. The form referred to in the above Rule is nearly the same as has been in use in the Court of Chancery. See notes to Rule 222. The form given in the Schedule should be followed. "The statutory form is the right form and is intended to be the common form. The affidavit of documents is intended now to be exhaustive, and the form given in the Act is so" (pei' Lindley, J., W. N. 1876, 39). In actions begun before the Act, as well as subsequent actions, the affidavit should be in the form given (^«o?j. W. N. 1875, 240). Courts of Equity have always compelled the production of docu- ments. The Common Law Courts did so to a very limited extent, but the practice was extended by Statute (R. S. O. c. 50, ss. 169, 170; 41 Vict. c. 8, s. 9). And now, under the Judicature Acts, the right is regulated by the rules previously existing in the Court of Cnmcery {Anderson V. Bank of British Columbia, 2 Ch. D. 644, 658); and the (!ommon Law rules are entirely at an end (Cotton, L. J., in Eade v. Jacobs, 3 Ex. D. 337 ; see also Bustros v. White, 1 Q. B. D. 423 ; Atherley v. Harvey, 36 L. T. 551). ./ 367 Rules 226-228. 226, Cross- cxaiii inutioii of deiioiiciits. 227 Kxaiiiiiia- tion of for- iiKT iilficurs of (;or|iiiiit- tion. 228 Affidavit in answer. Wliat niu.st be jiruduced '#1 I't'^l [\ ■ ^ i i I t i 1 1 Bale 228. All inatori.'il '' L T. 75G ; 2.S \V. K. 248). But it must be stated in the atlidavit how these are privileged (Kain v. Farrer, su])) ; and in such case it is for the heail of the dej)artment from which such documents are l)nnight, not for the Judge, to determine whether the production will be injurious to t'-e public service {Bradley v. iMcJntunh, 4 C. L. T. 120). 2. l^ocuments the production of which would tend to involve the Involving party in a criminal charge, or to subject him to a penalty or for- pinty iii t'eiture ( IVchh v. FuhI, 5 Ex. D. 23 ; Fls/ter v. Owm, 8 Ch. 645; Allhusen v. Lnbouchere, 3 Q. B. D. G54 ; ///// v. Caiiij/hell, L K., 10 C. F. 222; Boyle v. Wisemmi, 10 Ex. 647: see IVafn-s V. Earl of Shaf'tenhury, 14 W. K. 250) ; but the objection must be made upon oath ( Webb v. Ea.^t, siqi), and the penalty and for- feiture clauses of the 13 Eliz., c. 5, and 27 Eliz., c. 4, cannot be used to prevent production by parties to deeds which it is sought to impeach under those statutes {Btinn v. Btinn, 4 l)e (i., J. & S. 31(5; see Society of Apothecaries v. Nottiiajham, W. \. 1875, 250). Ueuerally when fraud is charged, no privilege can be claimed for documents relating to the alleged fraud (Ferner v. Williniii.t, 11 Jur. .V. S. 002 ; P/iilips v. Holmer, 15 W. R. 578 ; G/iarlton v. Coombex, 4Giff, 372 ; Morniiujton v. Mornington, 2 J. & H. 697). 3 Documents relating exclusively to the part3''s own title or case. Relating to or to the evidence by which it is to be established (tJwen v. Wyim I'a'ty''* o>yn 9 Ch. D. 20 ; Daiv v. Eley, 3 H. & M. 725 ; Inyilby v. S/nifto, 3a «»««• Beav. 31 ; Coinmi'isioners of Seivers v. Glaase, L. K. 15 Eq. ,302 ; StovH V. ColcH, 4 Chy. Ch. 9 ; Green v. Amey, 2 Chy. Ch. 138). Ir such case his opponent is not entitled to see his deeds, «&c., in order to " pick holes in them {Owen v, Wynn, 9 Ch. D. 29) ; but it must appear that they do not relate also to the title of the opposite party {tieyg v. Edmonson, 22 Beav. 125 ; Lind v. Isle of Whjht Ferry Company, 8 W. R. 540 ; Bishop of Winchester v. Bowker, 29 Beav. 4711; Fl. Rnle 228. ut till' trial. I'lodiiL'tioii oaiiiuit lie refused merely on the gnminl tliat if the l>1aiiitil>".'o cluiiit is iinfoumleil, lie has no interest in tlie doeiuiients (lin.-'/i-ii V. MuuhUij, '1 Iv. k .1. "JtSH. I I'roduetiiin was ordered when from the eirciim>tan(us of the ease as stati.'d. tlie ( 'oiut tlionuht tliat tiie oases of the plaiiitilV and de- fendant Wert' .so interwoven tliat nothing conid relate to the untj witiiout also relating to the other [llnniillitu v. Strot, 1 (ir. .'{'JTi. I'or what was held a hullieient description of the doenments and entitling them to |Mdteetion on this ground, see liiirhk< v. (Inthitm, 7 (). 15. I>. 400 ; llvlifi-ts V. Oj)/,(„/irl„i, W. \. I)S.S4, iV_' ; and Siflnl <(• C/iiiiiri, on Discovery, 'J0'.>). Irreh'vnuttii 4. Documents having no }iearin<,' on the ((Uestioii ti ried. H":,'l"^'^l';'" These need not ))e produced before 'the trial. {Mcirlunilx /iank v. TimiIiiIp. (•» I'r. K. '>\ ; liriiv v. Mr/nli/rc, 7 I'r. 1!. I.'M ; l'itrbr\. !r«7/.v, KS Ch. It. 477; \\'ol< ik \. K ; Rt Wovamiii, Ili'mirij v. \\'«r>is(iiii, ')! (i. .). Chy. (1(59 ;7l.' I,. T. .four. 2'M). The Court doi'.s not distinguish too nieely. however, between documents ridating to the ijuestion at tlie hearing and the con8(!(]uenti;'l relief. (See note p. .SdS). A party's c.'.ae for the purposes of discovery lonaists of everytliing which it IS reasonable to sup})ose will directly or indirectly eiialile him either to advance his own case or damage or 11 pel his aijver- sary's (('oni/xn/iiit' Findiicicre laiiitiff"s business. See also liadi'rc v. f/nij/ii/, 4C. L. T. 741. See Oimi v. W'l/iiii, !) Ch. I). •-'!»; Li/fll V. Kcnm'ihj, S .-Xpit. < 'a. 217 ; huniil v. Funl, W. N. ISSM, xVl). This rule depends on the circumstance that where claims to the same land in fee simple are maile hy two dillerent per- sons, they must he hased on inconsistent titles ; it cannot thert-fore he a[)plied to a case whert? the titles of the plaintiff and ilefendant me not ahsolutely adverse hut "itiy to some extent he pi'oveil hy the same evidence {Poiisinihi/ v. Hiirt/e;/, \V. N. 188,S, l.S ; 74 L. T. .Jour. '20S ; alHrmed on appeal though on a ditierent qrouud W. N. 18S.S, 44) In that case the right to possession was ;ot disputed, hut the right to minerals was claimed and the plaintilf relied on a reserva- tion of them anil the plaintiff was allowed to inspect the title deeds to see if they supported his case. For a form of statement of objection on this ground, see S'lrlu I ,f (J/uince, on Discovery, '210. 7. Mortgage deeds are privileged until the mortgagee is paid what is due (ChkheMfr v. Donetjnl/, L. U., ") ("hy. 497 ; Patrh v. Ward, L R., 1 Ec^. 436; Jaiien v. Joncn, Kay, Ai>p. vi. ; liridf/e- Witter V. DulViiUon, 12 W. R. 40; Howard v. Ru/tiu-^oH, 4 Drew, at p. 526; Weeks v. Stourfon, 13 VV. R. 489; Freeman v. Butler, 33Beav. 289; Smith v Barnes, L. R., I Eq. 65; Anon. 2 Charl. Ch. (!a. 61 ; VV. N. 1876, 23 ; Fisher on Mortgages, 340, 2n. fiUioff, .3. Production was not ordered in an action of trespass againsb a defendant, wiio was coniniittoe of a lunatic, of documents relating to the lunatic's estate, the documents not lieing in the custody of tiie party, but in the custody of tlie Court having jurisdiction in luiiai'y {Vhiian v. Lilfle, 11 i). )',. J). .S7i)). For a form of statement of objection in the affidavit on. this ground, see Sirliel <{.■ Clunirc on Discovery, 210. 10. Documents wliich are ])rivileu'ed as being communications passing Ijetween the jiai'ty and his cfmHdential professional adviser or agents. Of this kind are all cnmniunications betwt i i i)arty aTid his solicitor or other leg;il ad\iser whetlier made mile jmst litem )iiofitiii. It is en7 ; On poratioii of H(i.Mii)(is v. trail, ib., 1017 ; Mucfnrlav v. lliAt, L. IJ. 14 Eq. aSb; Haiiu'hin v. Whijte, Pr. K. 143 ; Mosfi/u v. West Most ipi 34 L. T. 531 ; Wilson v. Xorthamptun, L. R. 14 Imj. 477 ; Eadie'w Aildisoii, 47 L. I". 543 ; .see Ljiell \\ Keinieihj,') .\\\Y. Ca. 81); includ- ing communications witli a former solicitor (Tlioimts v. Stc. of' Stale for lialla, 18 W. R. 312; Marriott v. Aiir/,nr dc. ^ V,ii\\ 'MU ; WiL^oii V. lirun'ared with a bona fide. Cotnmunipii- tioii between solicitor anil client. PKOUUCTION OK DUCIMEN'TR. 373 intention of being laiil before a solicitor in a con tern] >l<'ite(l action "B^nh 228. {Stiiifhwitrf: v. (Jinri.; 'A (^ M. 1). 81") ; Whtrhr v. U Marrhant, 17 ('li. D. 07") ; Kinudhi V. I,iif /irifl-/i Cnlini.hin, 2 ( 'li. I). 044) ; documents material to the party's case procured l>y his solicitors of their own motion for the ])Urposes of tlu; action ( '/'lie Pakrmo, !) P. D. ; Gnclph 0. Co. V. ]V/ii/( /iid'l,'.) I'r. i;. oOOt docunieiits relating only to the con- duct of the suit (/)ii/il/ii/ V. Slui/lo, 'XA Meav. 'M ; (iinnli'c v. Sfans- ffelil, 4 Del!. & J. 1 ; 'J'nnio- v. Bnrhii-'hdii; 11 W. l\. 8")1) ; ])apers relating to a fomu'r action and privileged therein (Biillor/: v. ('urn/, 3 *.». P.. D. :mi ; lianin v. Jlaraii, W. N. IS7<), !>0 ; Nurdnh v. Drfrii.f, 8 (,>. B. I). r)08 ; limnfiird v. liranford, 4 I'. 1). 7'2) l)ut not (ither- wise (HiifrliiiiMoii v. Glover, I Q. B. D. 138) ; a doctor's report of an examination at the instance of a party's solicitor (FrUitd v. London. Chtithniii mid Donr ila'diatji Co., '1 l''x. D. 437) and rejiorts of surveyors as to the condition oi a caigo, made solely for the case of one of the ])arties or for the opinion of his legal adviser (Thi' Tficudure Kiirncr, .S I'. JJ. lO'ij. .^ec ('o.-<.^i/ v. London, Jhiijhton, dr., I,';/. Co., Ij. R.o C. p. 140. The giving of an extract or co[)y of an opinion of counsel procured by the solicitor for his client on the subject niatter of a suit to the solicitor on the othe.i' side does not prevent this opinion from being privil.'ged (Cam/ v. r„f/,l„-rf, L. K. Ir. K^. ryJK). Protection cannot be claimed ou tliis ground for comnmnications Coininunica- niaile to a solicitor, but not in iiis character of solicitor {T/ioina-'i v. tiona not in Rawlln'js, 27 Heav. 140) nor fov letters to a party's solicitor, not in- J^^aracfter"*' duced by in(£uiries (.!/'•'' 'or'/'jo'/a/i' v. //'//, .sa/^ra). nor for statements inido voluntarily or at Hif party's re([uest for his own inform.ation by his unprofessional agents {/in.stros v. White, Andir.wn v. Bank, of Bntinh CoJamhla, nu/ird) though made in contidence, and so marked {ff()j>lcin.'ion v. Lord Bid'jhlei/, L \l. 2 Chy. 447. See Winion v. Bradstreet, 2 T'hy. ('h. 77). In such cases an undertaking may be Of collateral reijuired not to use the documents for any collateral purpose {Hop- '"formation. khh-tou V. Lord Bnnjhlei/, unpen, h'ie/Ktrd.'^on \. H; Pariitv. Metro- politan Tratnwaiix Cc, \V. N. 1888. 100 ; Orii/wal Hartlejtool Col- lieries Co. V. Moon, 80 li. T. 1!)8, ")8.") ; see W<.sliii(ihou.if v. Midland <{•'•.. 48 li. T. 98, 402 as to what constitutes lis motai, nor for profes- sional opinions given partly for the benefit of the party re(|uiriug protluction {liei/nold.s v. Uod/ep, 4 K. & •!. 88 ; Talhof v. Marsh flelit, 18 \V. H. 88") ; Wi/nne v. Huniln rtson. 27 Beav. 421), nor where fraud \M:'U ' 1 _ li \ I. m in '"•■■' M iii 1 374 Sole 228. CommuniDi- tioiis with unproft'S- Bional agent. Instances nf conmiunioa- tioiisnotini- vi'.tfgcil. ;. Form of iilli davit cImIiii- ing protecti- on from pro- duction. ONTARIO JUDICATURE ACT, 1881. is charged (see AfoniiiKjton v. Aforninytnii, 2 3. & H. 697 ; Charlton V. VuDmheii, 4 (iiff. 372, 38-' ; Ki-ynell v. Sprue, 10 Heav. 51 ; 11 Reav 618). No privilege can be claimed hy a trustee as .against his ceMtii quf trust for letters passing between the trustee and the solicitor, relating to tin- trust before action brougiit (h'e Ma.wn, Mason v. Cattle)/, 48 L. 'I'. 631 ; Talhot v. Mar.i/ijield, sup.) 1 1 . (Jonimunications with an unprofessional agent in anticipation of litigation and with a view to the prosecution of, or defence to, a claim to the matter in disjjute were held to be privileged in Jfo.'^s v. Gihhs, L. II. 8 Ef[. 522, (see also Anderson v. Bank of British Cofiiinlna, 2 f'li. D. at p. 658) ; but the documents there were for the ]juipo.«e of being laid before a legal adviser and would come within Soiitfnrark, '()«//(- wark; dr. v. Quirk, 3 Q. B. D. 315, see supra) ; corres]iondence between a vendor ami a vendee relative to the subject matter of the action by a sub-vendee but which could not be said to lie contideii- tial connnunications with a view to litigation {Emjlish v. Tottie, 1 Q. W. 1>. 141); letters from a party's unprofessional agent to defendant, relative to the subject matter of an action, not sent in order to be laid before the party's solicitor (Ainlerson v. Bank of British Cidunihia, 2 V\\. D. 644) ; an agreement of ctunpromise between the defendant and a third person relative to the sul)ject matter of an action (Hutrhin.-ion v. Clorrr. ] Q. B. 1). 138 ; Birhord.'< V. Afonjan, 4 F>. & S. 641 ) ; or papers obtained from experts by arbi- trators for their guidance [Pon-iford v. Swaine, 1 .J. & H. 433). Corre.'iijondence between co-defendants after suit is not as a general rule pi'ivileged {Hamilton v. Nott. L. 11. 16 Kq. 112; see also Sankei/ v. Alr.rander, 8 I.. U. Jr. 241). \\ liere a diary tliat would not have been protected from i)roduc- tion has been lost, extracts made from it since the commencement, and for the purposes of the litigation are not protected [Land Cor- por, K(|. ll'J) ; but letters may be so de- si':ibeil with sutticient description to identify tliem ( Wnlh'rw l*oiili\ 51 I-. J. Ciiy. 840) 'I"oo prolix and voluminous an atHdavit was ordere.l to lie taken ofi" tlie tiles {ih. W. N. 1882, VMS). The atlidavit nmst also (see clause ',^) assign a reason for objecting to |)roduce the documents and verify the facts upon which the claim to protection is based. It lias been held suliicient to swear to tiie best of the defendant's knowldge and belief ( Miiifl v. Muri/dii, siijtra, but see Mniihi/ v. Bi'ioirki-, 8 I)e(i. M. & (i. 47<))- It is insufficient to swear generally that the documents are privileged fWanhn'r v. Irrin, 4 Kx. I>." 49). An aliidavit of documents had been iiled, setting out the number and the dates, but not t\w parties to title deeds. //.A/, that, as the deeds were [triviitged, the IJourt would not order the names of tlie parties to tlie deeds to l)e set out [Taiflur v. Olurr, 4.1 I.,. J., Ch. 774 ; U L. T. y02). The following statements have been held to sutticieiitly disclose Ex^miiles some ground of privilege: "The said documents relate solely to ''^'''^'j'V*'".'' the case of the defendants and not to the case of tlie plaintiff', nor j*^, produce'^ do tliey tend to sup^)ort it, ami they do not to the best of our know- on ground of ledge, inff>rmation and belief, contain anything impeacliing the case I'livilegu. of the said defendants, wherefore, we object to produce the same and say they are privileged fjom jjicxhictioii " [Ih irirhv v. drftlnDit, 7 (j. H. D. 400. vSee a discussion of tiiat case, I(> 1.,. J. '2iV,i ; see also Rohirt.i V. Oppeiiheiin, W. N. 1884, 52 ; 50 I.. T. 117 and linlmni, v. Dixuii, 49 L. T. 73(). " T object to produce the documents set fortli in the second i)art of the first Scliedulc on tlie ground tliat l>eing commiinications between solicitor and client they are privilegeii [fliinu'li/H v. \V/i!/f<\ (5 Pr. i; 14H. See al.so Mih-i'iir/uiir v. /.'«.//, L. R. 14 K([. 580). l'\)r a description held not sutticient to jirotect on the ground of joint interest, see Fm-sn- v. Hoim- /ii.s. Co., G Pr. II. 45. Tortious oi bo 'ks produced, containing entries not relevant to tlie matters in iiuestion may bi! allowiii to lie sealed up (AV I'lrhrhnj, 25 Ch. \). 247 ; //cwj/i'v. G'orrrtt, W. .\. 1874, 22!) ; 1875, 2()). Where tlie documents are properly ideiitilied and de.seril)ed and .'Mtidiivit in e ground of protection suthciently stateil, if it is a valid ground the l"'"P[?i' form Hdavit is priimi. t'ni'ic conclusive as t. 1) 5.')(3i; but the Master or Judge may see from the nature of the case that the i)arty has mis- conceived tlie effect of the documents ami may therefore disregard or refuse! to act upon his atHdavit (Attonicy Ccnrral v. Kiiiir- ; ro)is„nl>i/ V. HartU'ji, \V. X. 188.S. 13,44 ; Ljiell v. Ki'uw'ifn, 31 \V. R. ()18 ; Franerv. Hum,- Ins. Co., G Pr. 11. 45 ; AV I'ickrriuji, 25 Ch. |). 247) or if fnnn the atlidavit itself [Joiii'.i v. I 'mm ■ I ; ■I. Y'^'m m 1 1 till 376 ONTAUIO JUDICATUUE ACT, 1881. Rales 228, 229. II. Every party to an action or other proceeding Muiilf Viiho, (I'r., sujH'd ; Wntistafi^ v. AmlcrKDu, .S9 L. T. ,s:vi_ where the words " never have had " were omitted), or from the docu- meats r»;t'erred to or an admission in tlie pleading of tlie ])arty [Ihi.s- tiiiii'<\. Irull, L. U. 8 Chy. 1017; Imp. Laml Co. of Mar.si'tlbs \-, MdMcnnaii, ~- NV. It. 6(5 ; "JS) L. T. SoU ; Joiifs r. Monte V'ulai G'n.s Co., .siipni.), or in liis ex/imination (see Diih.vni v. Doh^on, 7 I'r. I;. l2o()), or the alii'l/ v. McArtlttir, 7 I'l-. K. 40) the Master or .Judge is of opinion that the uflidavit is insiitH- cient a further alKdavit may be ordered (see also /»'o.v.s- v. JJiihUn UuUi'il Tntiincniiti Co., 8 L. H. Ir. 213 ; Coin/iniiuic Fiuaiickn v. Penir'ian Giunto Co., 11 Q. B. D, 5.5; Cciitnil Seirx (Linutid) v. Ili (.'o., '28 S(d. Jour. IVJO \ liohiii.ion v. liiu/i/ctt, \V X. 1884, 94 ; 28 Sol. Jour. 411). Cross examination upon the atlidavit was not allowed by the for- mer Chancery Practice in Kngland {Manhi/ v. livirickc, 8 De(i. M. & (3f^ ^q ^j^g Hoticc in Writing" to any other party, in whose pleadings or affidavits reference is made to any document, to produce such document for the inspection of the party giving such notice, or of his .solicitor, and to piM^mit him to take copies thereof; and any party not complying with such notice shall not afterwards be at liberty to put any such docu- ment in evidence on his behalf in such action or proceeding, unless he shall satisfy the Court that such document relates only to his own title, he being a defendant to the action, or that he had some other sufficient cause for not complying with such notice. (R. Sup. C. itS75, Order 31, R. 14.^ Corresp(mds with the English Rule. See notes to llules 222 and 228. In Weh.'iter v. Whewall, 15 Ch. D. 121, remarks were made l)y Denman, .1., to the eS'ect that "sufficient cause" for not complying with a notice by defendant under this Rule would be that the defence had not yet been deliveied. This dictum was not approved in Quilter v. Heiifl//, 23 Ch. I). 42, where it was hehl that a defemhiut was, />niiiii fnc'ic, entitled to at once inspect a document referred to in the pleadings, and the burden of shewing cause is on the party frcni whom inspection is demanded ; also that the Rule applies not only between tlie plaintitt' and a defendant, but also between co-defend- ants. Tlicre Lindley, L. J., said, " There is a material distinction between ordinary discovery, and discoverj' of documents referred to in pleading 01' iiffldavits 377 Rules 229-231» INSPKCTION OF DOCUMENTS. in the pleadings or attiilavits." And Jessel, M. R., said, "The defendant may say ' Your case depends ]>aitly on a set of doemnents whi^h you may have set out ineorreetly, I wisli to see them. It may be that I have made admissions which will put me out of Court. I wish to see the documents to know whether I have nuide such admissions and it is important for me to see them before 1 jtut in my defence.' It is reason enougli wliy the defendant should he allowed to see them that the plaintitl' has made them part of his statement (if claim." The documents need not be particularly identified or referred to ; hut if more compendiously described by general wyrds, they fall within this Knle, and inspection may be ordered {Snilf/i v. Harris, 48 L. T. 8t)!(). A letter referred to in particulars of jdaintitt's claim is a rought under the old procedure (Mdtth'ms v. Dclcac/io, 1 Ciiarl. ( 'a. (Court) 123). Inspection of a mortgage deed was refused to a i' 'endant, who wished to Hnd from it the amount in order to redeem, the [)laintitf undertaking to give in a week a statement of principal, interest and amount of costs and of the particulars of all other subsetjuent incuml)rances {Anon 2 Charl. Ch. Ca. 01 ; W. N. 1876, 23). See Eninmts v. Middli-mUs 8 Pr. H. 320. In Lcd-c v. PooU'ij. W. N. 1870, 54, an {iction ftir breach of covenant in a lease, the defenught depends on the determination of any issue or question in dis- pute in the action, or that for an)' other reason it is desirable that any issue or question in dispute in the action should be determined before deciding upon the right to the discovery or inspection, may order that such issue or question be determined first, and reserve the question as to the discovery or inspection. (R. Sup. C. 1875, Order 31, R. 19.) Same .aa English Hule. Tliu right to the di.soovery or inspection of documents may ile- peuil, for example, on a disputed allegation of partnership ( Li/oii v. Tn'cdifi'll, IS Ch. D. .S7o) ; and. in such case, the Court or a Judge may order that question to be determined iirst, reserving the ques- tion as to discovery or inspection. In an action for an account of profits made by the defendants as the plaintiff's agents, the defendants denying the agency, the Court ileclined, until after that (piestion should he tried, to order produc- tion of the invoices of goods sold V)y third persons to the defendants, and re-sold by the tlefendants to the plaintiffs ; the defendants having sworn that those invoices had nothing to do with the point at i^siie, and that tlie disclosure would be injurious to the defen- dants if the plaintiffs failed ( Venniurk-v. Edwards, 29 W. R. 189). In 7>V Lciif/i, Bowrliffe v. Lehjh, (3 Ch. D. •JSU, where an executrix disputed a horse dealer's account, and the dispute was whether or not certain horses Avere stdd on commission, the Court refused to order the liorse dealer to disclose tlie prices, as being immaterial until it had been decided tiiat the horses were sold on commission. The questiou of liability must l)e one which is severable from the ques- tion of damages. (See Elkin v. Chtrh-, 21 W. R. 447K In a suit by an alleged next of kin to an intestate, against tlie solicitor to the Treasury, to wlu)ni administrati8 ; also Juinu v Jamo.'^, 13 Oh. \). 370 ; Euijli^h v. Totlle, 1 Q. B. D. 141. nn 236 Consequen- ces of dis- obeying an order for discovery. I 1 8. If any party fails to comply with any order for discovery or inspection of documents, he shall be liable to attachment. He shall also, if a plaintiff, be liable to have his action dismissed for want of prosecu- tion ; and, if a defendant, to have his defence, if any, struck out, and to be placed in the same position as if he had not defended ; and the party who claimed the order for discovery or inspection may apply to the Court or a Jud^t^e for an order to that effect, and an order may be made accordingly. (Comp. R. Sup. C., 1875, Order 31, R. 20; G. O. Chy., No. 144.) Same in effect as the English Rule, except that the latter refers to answering interrogatories. The Rule corresponds also in effect with the Chancery Order referred to. This Rule will not apply in case of disobedience of a notice to produce for inspection, (see MerrhanVn Bank v. Plerxon, 8 Pr. R. I'JSi ; an order under Rule 233 must first be obtained. An order for production need not now bo indorsed with the warning to the party, sometimes employed under the former Chancery Practice (Thomas v. Palin, 21 Ch. D. 3G0 ; Wallaro v, Graham, 11 L. R. Ir. 369). For the proceedings on a motion to attach see further notes to Eules 3()4 and 36.') It is not imperative on the (!ourt to act under this Rule, {Kennedy V. Lyell, W. N. 1882, 1.37). It Mas said in one case that the Rule is a penal one, and only to >)e acted on in last resort, (Lush, .T. in Ttni- croft V. Grant, W. N. 1875, 201, 229; 1 Charl. Ch. Ca. 115; see Fisher v. Iluf/hes, 25 W. R. 528 ; Pike v. Keene, 24 W. R. 322 ; 35 L. T. .341). Where the plaintiffs were husband and wife, .and the wife com- plied with order for production, but the husband absconded without complying, V. C. Hall refused to dismiss the action under this Rule (Harf'fe;/ v. Owen, W. N., 1876, 193). Where the Court was satisfied that a plaintiflF was withholding information which he ought to have given, the action was dis- missed ( /MHm//tVj- v. .}f!/ers. W. N., 1883. .'18). For other cases in whicli the power has been exercised, (see Finher v. Hui/hes, 25 W. R. 528 ; and Rep. of Liheria v. Roi/e, 1 App. Oa. 139). In the last case it was held that where any step ought to he taken in a oanso, whicli in the judgment of the Court was necessary to facilitate the decision of the cause, an stateiiic'iits of uppuneiit ORDER XXVllI. ADMISSIONS. I. Each IS t party allc (J. l\ m). For notices wliieli may be given to enable secondary evidence to be given of wills, registered instruments, telegrapliie messages, letters, &c. see Uev. Stat. c. G'i ss. 41, 45, 48. 4. The production of any written admission.s pur- 243 porting to be admi.ssion.s in the action, and to be niadeai°„°gg"ong, in pursuance of any notice to admit document.s or otherwise, and to be signed by the solicitor of the party by whom, or on whose behalf, they purport to be made, shall be sufficient prima facie evidence of such admissions. (Comp R. Sup. C, 1875, Order 32, R. 4 ; G. O. Chy., No. 48 ; Reg. Gen. T. T., 1856, No. 159, Ont.) The English llnle is the same as C. L. P. Act, 11. S. O. c. 50, sec. 17.S. The Chancery Prjictice in Ontario was to dispense with the affidavit required ijy sec. 173, and the present Kule adoj^ts that practice. A notice to admit may be g'ven, even where the document is not in tlie possession or under the coux, \ of the party (Hatter v. Chapman, 8 M. & W. 888 ; Comjer v. McKechnie, 1 Cham. i{. 'I'lO) including a foreign judgment (u to 11 Mastur or other proper otKcci', or to an olKcial llofuroe, unilur see. 47 of the Act. See notes to that seetion. An imiuiry was direeted in Wcsf. Limihin Jhiiri/ Soc. v. Ahbott, 2!> \V. U. ■)84 ; 44 L. T. ;i7t) aa to a (jueHtion of faet, leaving (juestioiis of law for Hulisecjuent determination, anri)»in v. Mr Dimahl, 8 I'r. U. ;-t8!»). The Court may make an order (See Id' Jji ir() p. 71. The power to stay entry of judgment under clause (c) woulii not seem to Ijc capable of being exercised by the Master in CMianil)ers, (See notes to Rules '245, 420 and 4UI.) 247 Order to U' read us containing atiovi' provisions. 4. An order under either of the preceding Rules .shall be read as if it contained the provisions set forth in the said Rule, and shall not set forth the said i)ro- visions, but may contain any variation therefrom, and any other directions which the Court or Judge shall see fit to make. New. See notes to Rules 245 and 246. IT n If 1 txll 1 J ; , :: !'; SPECIAL CASES. 387 Bole 248. I'.' 248 ies may conour in ORDER XXX. QUESTIONS OB^ LAW. I. The parties may, after the writ of summons haspart been issued, concur in stating the questions of lavVg^^tlng arising in the action in the form of a special case for sreiiai case, the opinion of the Court. (Comp. R. Sup. C, 1875, Order 34, R. i ; R. S. O. c. 40, s. 85 ; c. 50, ss. 181, 185.) (a) The parties to a special case may, if they think fit, enter into an agreement in writing, that on the judgment of the Court being given in the affirmative or negative of the question or questions of law raised by the special case, a sum of money, fixed by the parties, or to be ascertained by the Court or in such manner as the Court may direct, shall be paid by one of the parties to the other of them, either with or with- out costs of the action ; and the judgment of the Court may be entered for the sum so agreed or ascertained, with or without costs, as the case may be ; and execu- tion may issue upon such judgment forthwith, unless otherwise agreed, or unless stayed on appeal. (SeeR. Sup. C, 1875, April, 1880, R. 9 ; R. S. O. c. 50, s. 182.) (h) Every special case shall be divided into para- •j^raphs numbered consecutively, and shall concisely state such facts and documents as may be necessary to enable the Court to decide the questions raised thereby. (R. Sup. C, 1875, Order 34, R. i.) (rj Upon the argument of such case the Court and the parties shall be 't liberty to refer to the whole contents of such docu.nents, and the Court shall be at liberty to draw froUi the facts and documents stated ill any such special case any inference, whether of fact or law, which might have been drawn therefrom if proved at a trial. (R. Sup. C, 1875, Order 34, R. i ; Comp. R. S. O. c. 50, ss. 181, 185.) Thu several parts of this Ilule correspond with the Eiighsh Rules rtforred to, except in omitting a provision as to stamp iluty. Tlie power of stating a special case in the ('ommon Law Courts of Ontario depeiuled upon It. S. O. c. ')0, sees. 185, 180 ; c. 51, sec. 24, uutl th'- previ(»us statutory enactments to the same effect. The like pDWor in Chancery is given by U. S. O. c. 40, see. 85. That section WIS '.aken from '2S Vict. c. 17, sec. 1 (Canada), whicli had the effect of introducing the Imperial Act, 13 & 14 Vict. c. 35, on the subject. M-l It I;!: ( I -i^'':i 'i;! .';'■ '1 , ■ ■ J ' ■ t ■ t' [;!"■' "■ . 1tl 1 . .''1 ' % • ll '': IH 'm iiiiililil 388 ONTARIO JUDICATURE ACT, 1881. Rttle 248. The Kulos authorize the stating of a special case before statement of claim {MrtropofitcDi liwiril. of Works v. New lUver Co., 1 Q. H D 727 ; -2 Q. P.. D. 07). The provision in the last part nf the Rule, enabling the Court to refer to documents, is new as respects the Common Law Courts. These Courts were contineil within tlie four corners of the case, so that it Wivs oftou necessary to set out tlocuments, a part only of which was likely ho prove material. 'i'he power to draw inferences of fact also did not exist in Common Law ( 'ourts as of rij^ht • though it was cummoidy specially reserved to the (^ourt in well drawn cases. In cases stated in tlie Court of ('hancery, the Court had both these powers under ss. 8 & 14 of J. '5 & 14 Vict. c. 35, (Imp) • 2S Viet. c. 17, &. 1 ; H. S. (). c. 40, s. 85. A special case must l)e ujton a re;d state of facts, not a hyjio- tlietical one, (RcpiihUc of /inllriti v. Bolinan NiirUidtiou Co., 24 \V. II. 3()1 ; Briiiht v. Ti/ii'lall, 4 Ch. D. 18!> ; Pri/s,- v. Pn/se, L. 11. 15 Eij. 815; Smith v. c'lhs,,)/, 'Jo L. T. 55! > ; 20 '\V. H. 88; Snmye v. Tiicrx, 20 W. 15. 817; liardwell v. S/ir[fu'l,/ iVcifpr \rork:-< Co., L. R. 14 Herformance ; C'eii. FiiKniCf Co. v. Lilx nifor, H. S. 10 Ch. D. 15, aqi'jstion of title in an action for recovery of land ; Wiliion V. Dundns, W. N. 1975, 2.S2, a question as to tlie liability of a garnishee; and Mdrshnll v. Aiijlci'-imil. W. X., Its81, .'!, a (iiicstion as to the construction of a power of appointment in a svill. ITpon the argument of a special case stated in replevin, the plain- tiff has the right to begin ( Viijdr v, Dudnnin, 24 L. T. 734). Where the answers to the special case dispose of the action, the proper course is, to take the decision as a judgment making declara- tions to the same effect ; and the answers ought to be followed by the words : "and the Court doth declare accordingly." In such a case the Registrar was directed to draw uptlie judginciit as answer- ing the special case, on motion for judgment {Murri.iun v. t'oniinill Miw.rah 11' y Co., 1(5 Ch. D. fiti). 389 Rales 248, 249. u 249 2. If it appcar.s to the Court or JudL,^e, cither from I'lciiiMinary the statement of claim or defence or reply, or other- law.**^'"" "^ wise, that there is in any action a question of law, which it would be convenient to havt; decided before any evidence is tjiven or any question or issue of fact • is tried, or before any reference is made to a referee or an arbitrator, the Court or Judi^e nia\' make an order accord inijly, and may direct such question of law to be raised (a) either by special case or in such other manner as the Court or Juds^e may deem ex- pedient ; and all such further proceedings as the de- cision of such question of law may render unnecessary may thereupon be stayed. 'R. Sup. C, 1S75, Order 34. R- 2.) ((t) The English Rule has here the words " for the opinion of the Court." The Rule is other vise the same. Rule "248 enables the paifcies to state a case by consent ; the present Ride enables a Judge to raise a question of law by sjtccial case or otherwise, without reference to consent, and to direct that question to be ject to the power of the Court or a .Judge to order it to be changed. The practice as to changing the venue was, that either jjarty might a|>ply for an order for that jiurijosc. Tin! plaintiff, if the application was tils, had to show reason.able ground for the change, and if the application was tiie defendant's, the defendant had to show distinctly a pre])ondirani'e of convenieiiee in favour of trying where lie jiroposeii, instead of where the veiiuo was laid (Church v, Bnruvtt, L. R. «), C. \.\ llfi). Theiiresent I{ule, like the similar otu' in JMiglaiid, applies in all Divi- sions (Redniuipir v, Vaiuihui, *J4 W . R. !(8.S ; ( 'lurkc v. ('nak-'iin, '1 Cli. D. 746) and leaves the matter in the discretinn of the Judg<,', to be exercised according to the balance of convenience, and it is for the defendant to show a preponderance of convenience to oust the plaintiff's right t(> Hx the place of trial iPlinii v. XornHUidoi ImiK .t-c, Co., W. N, 1876, lOo; Wuorly (Xoad v. S'oiul. t) Pr. H. 48). There is not unanimity aml;i<'e of The rcportefl cases, and the opinions of the majority of the Judges, *""'• seem to be in favour of ado])ting the former Chancery ]iractiee, and of determining the convenience by a consideration of the expense and the witnesses' facilities of travelling (see Dnvis v. Mtirrai/, 9 Pr. R. 222 ; Jfuhcrt.ioii v. Dafjaneau, 3 C I.. T. 20(5 ; Wal/o'n v. Wideman, 20 V. L. J. 13«); 4 0. L. T. 198) but that the plaintiff's right to select the place of trial is not lightly to be interfered with, where it has not been vexatiously chosen by him. It is impossilde, as a general rule, to enter into the investigation whether one class of witnesses will be more injured than another by ab.sence from home {Noad v. Noad, and Darin v. Mitrraii, niipra.), except in the case of a pultlic officer {Fiskfii v. Sviith, 2 Chy. Ch. 4!>1). The ])re- ponderance of convenience to be shewn by the defendant must be considerable. A change will not be made on account f)f a trifling difference in expense (see . S7^»''a»-< v. t/y/uiS^^HC, 4U. C. L.J. 21 ; Mooui'tj V. Mooney, (J Pr. 11. 267, and Walton v. Wideinan, and other cases, tupra). The plaintiff cannot have the place selected by him changed, if the defendant objects, except upon shewing cogent reason, if the place ch0Hr{(//( v. Pror. Ins. Co., 2 C. L. J. 104; Blackhnrn v. Cameron, 5 Pr. R. 341 ; see also Davis V. Mtirrat/, 9 Pr. R. 229). Qiuvre whether the pendencj' of otlier similar suits, and the fact that a large numl)er of persons are interested in the county in the matters involved, and that in the opinion of a numlier of residents a fair trial can not be hail, will l»e sufficient (see J /'^// v. Li-adley, Ahell \. Kirk, 2 C. ii. T. oo"), 057 ;see also Moor v. Boyd, 3 Pr. R. 374). See also where the .'Sheriff is a party, Brannen v. Ja7'via, 8 I'r. R. 322 ; or the County Judge, Anon. 4Pr. R. 310). The place of trial was changed in a collision suit in the Maritime Court on the sole ground that the local Judge would be in a l)etter f)osition to try the case from his ])ractical or easily obtainable know- edge of the locality in which the collision occurred ( The Wiarton Belle, 2 C. L. T. 360). In an action in respect of the infringement of a patent the trial must be at the place nearest to the place of business and residence of the defendant, under s. 24 of The Patent Act of 1872 (Goldsmidt V, Walton, 9 Pr. R. \i) ; Aitch'^son v. Mann, 9 Pr. R. 253, 473). till v\ ■ hi :', ' ! ; :;^'i ) Si* , ; : fr - m 'j: P i '1 '<''■ mmm m It \\m m m iffllt iPl; ■ ( , .. .1 w 394 ONTARIO JUDICATURE ACT, 1881. Bdes 254, 255. Changing place of reference. 255 Notif'e iif trial. Order to dis- miss for want of prosecution. Notice of trial A reference to a Master is prima facie to the Master at the place where tlie proceedings were instituted {Macara v. Oioynne, 3 Gr. 310 ; McNah v. Mclnnis, 4 Chy. Oh. 53), but the place is subject to be clianged, upon, motion, applying the same principles as in the case of the place of trial (see Jackson v. Harrivian, 9 C. L. J. 29 • McNah V. Mt'InniH, supra). The policy of the Judicature Act in decentralizing business introduces a further element, and as far ai possible, local matters are to be sent to the local Masters ; a reference was therefore changed and sent to the Master of the county in which partners])ip business in (question was carried on (Aitken v. Wilson, 9 Pr. 11. 7o). A reference was also changed where it became necessary to add as a party the Master before whom the matter was pending ( WfUlon V. Ttnnpleton, 1 Chy, Ch, 300), and where the Master's illness un- fitted him from attending to business (Re Kirkpatrick, 18 C. L. J. 121 ; 2 C. L. T. 204). 2. After the close of the pleadings either party (a) may give notice of trial for the next sitting of the Court which shall be not less than ten days (h) there- after for the place so named or ordered ; or if the plaintiff does not give such notice of trial, and if the pleadings were closed six weeks before the commence- ment of such sitting ((') the defendant, instead of giving notice of trial, may apply to the Court or Judge to dismiss the action for want of prosecution (d)\ and on the hearing of such application, the Court or Judge may order the action to be dismissed accord- ingly, or may make such other order, and on such terms as to the Court or Judge may seem just. (Comp. R. Sup C. June, 1876, R. 13; R. Sup. C.,. Order 16, R. 4 and 4. a; G. O. Chy., Nos. 161, 273.) (a) The English Rule permits the plaintiff to give notice of trial with his reply though it does not close the pleadings (Asquith v. Mol'tneau.c, 49 L. J. Q. B. 800) ; but he may not enter the case till the pleadings are closed (Metropolitan Inner Circle Kij. v. Metropolitan Jii/. Co., 5 Ex. D. 190) ; and it does not permit the defendant to give notice of trial, until the plaintiff has failed to do so for six weeks after the close of the pleadings, or such extended time as a Court or Judge may allow. The Ontario Rule, supra, is in accordance with the Chancery practice G. O. Chy. No. 101. One of several defendants may give notice of trial under this Rule, and if he does so he should serve his co-defendants as well as tlie plaintiff (McLean v. Thompson, 9 Pr. R. 553). (I)) This is the period allowed under Rule 259 for the notice of trial. The words " not less than " do not require a notice of trial to be ten clear days ; this Rule is to be read with Rule 259 (see Harper v. Marx in note to that Rule). As to when the pleadings are closed see notes to Rule 176. Notice of trial given before the pleadings are closed, within the meaning of Rule 170, will be irregular (Schneitler v. Proctor, 9 Pr. R. 11). An action of ejectment begun under the old practice was held to be at ! i TKIAL. 395 issue ou appearance being put in, though after the coining into force 5,^1^ 255. of the Judicature Act (Laidlaw v. Ashbaurjh, 9 Pr. H. (5). (c) What follows is identical with K. Sup. C. June, 1876, R. 13, tnd is somewhat analogous to the mode of proceeding under section 246 of the C. L. P. Act (R. S. (). c. 50), but simpler, and corres- ponds substantially with the existing Chancery pr.actice. In computing the six weeks, it was held that it might be made up of the time that had elajjsed before, as well as after the coming into force of the Jud. Act (Francis v. Gracey, 17 C L. J. 454 ; 2 C. L. T. 45). There is a continuing duty on the plaintiff 's part to give notice of trial until the case is tried ; hence, although he has given a notice, but the trial for some reason is postponed, the defendant m.iy move to dismiss under this Rule if "-he plaintiff makes default in giving notice of trial for any subsequent Assizes (Chapman v. Smith, 32 V. V. 555 ; Hibernian Bank v. Hughes, 10 L. R. Ir. 15). Where a case is made a re.mam't, no notice of trial need be given, Uemanet. and the case need not be again entered. A case was held to be a remauet where, by verbal order at the trial, it was " postponed till the Autumn Assizes " (Donovan v. Bonlthee, 19 C. L. J. 852 ; 3 (J. L. T. 501). On a motion to dismiss, some excuse must be given for the defauU, Motions to the sufficiency of which will depend upon tlie circumstances of each '''*'"'*^- case. Chy. Gen. (Jrder 276 has been held to be still applicul)le to such motions [Bucke v. Miirrai/, 9 Pr. 11. 495), and probal>ly will })e i held to apply in all the Divisions of the High Court. Tliat Gen, Order is as follows : " 276. Where a defendant is entitled to give notice to dismiss, it f^'y. Order is not to be sufficient answer to the motion for the plaintiff, after ''**• being served with the notice to take out and serve an urder for amending the bill or to file a rejilication, or undertake to speed the cause ; but it shall be necessary for the plaintiff to shew that he has prosecuted the suit with diligence, or that under all the circum- stances the bill should nut be dismissed. " The general rule therefore still remains, that an undertaking to speed the cause is not a sufficient .answer to a motion to dismiss for want of i>rosecutiou (though it is otherwise in iMigland, Ere/i/n v. Ereh/n, 13 Ch. D. 138 ; Freason v. Loe, 26 W. R. 1.38) ; but' it is still discretionary with tlio Judge to say whether, under all the circumstances, the action should be di.sinissed (Bucke v. Murnn/, su))ra). The former decisions under tlie Chancery practice will tlierefore probably serve as authoiities as to what is a sufficient excuse (see cases in Robinson & Joseph's Digest, j)p. 2922 ct -vf 7. ; Fiinieijan V, Kecnan, 7 Pr. R. 385 ; and as to what amounts to waiver of objection to the delay, Cottoti v. liodgcrs, 7 Pr. M. 423). See also Miles y. Roe, 20 C. L. J. 113. Where an action was ordered to be dismissed unless notice of trial was given by a given time, and by mistake of the solicitor's clerk notice was not given, a Judge refused to extend the time and the Divisional Court refused to interfere (Gilder v. Morrison, 30 W. R. 815). See note to Rule 203. Where one of several defendants in an action has delivered his defence, and the time for the plaintiff to deliver his reply to such defence has expired, but the plaintiff has, without the knowledge ^1! (1 H - 5 , , ,; i ■ li . 1 • i mil - ;/ ",•-'■ 1 ; , 1 'J I It ^f-iil / 396 ONTARIO JUDIOATURK ACT, 1881. Bnles 265. 266. I I I . 250 Trial .if diffcri'iit questiiiii.s dlffiTent modus. of that (lufciiilant, agreed in writing with the tither defendants to extt'ud tiie time for delivering their defences, that defendant cainiot move to dismiss tho action as against him for want of prosecution, the pleadings not yet being "closed;" and it was said, that a defendant's proper course is tu write to the plaintiff's solicitor, mu\ en(iuire how the action stands as regards the other defendants (Ainliro'iHev. Evelyn, 1, <'h. I). 759). 3. Subject to the provisions of the Act and of the 111 preceding- Rules, the Court or a Jud^e may, in any action at any time or from time to time, order that different cjucstions of fact arising therein be tried by different modes, or that one or more questions of fact be tried before the others, and may appoint the place or places for such trial or trials, and in all cases may order that one or more issues of fact be tried before anv other or others. fComp. R. Sup. C. 1875, Order 36; R. 6.) Same substantially as the English \\\\ e. The present llule enables the (Jourt to direct one or more issue of fact, which may decide tlie case, to be tried before the others. Rule ;24!t enables the Coxirt to ilirect a incliminary point of law, to be decided which may prevent the necessity for trial of issues of fact. Ride 194 contains provision of a similar kind for enabling a point of law r.aised by demurrer to be decided at the same time as issue:< of fact or at a ilifl'ereut time. In Th>' EnniKi Silrn- Miaiwj Co. v. Grant, li Ch. D. 918. .lessel, M. R. .said (]). y.SO), tliat a *' case to be brought within this I'uile ought to be one of simple issues. I ilo not think it is convenient to travel through a long record, and to get a number of complicated issues, and except tliem, so to say, from the pleadings." He ex- plained in what cases the Rule had theretofore l)een acted upon. All had Iteen cases in which the .application was by the defendant. He s.aid .at p.age 9'2G : — "The tirst case that came before me w.as a case in which a lady alleged that she w.as tlie legitim.ate child of somclxtdy, and th.at as such she was entitlijd to take some very long and expensive ami intricate accounts against some trustees, 'i'lie trustees showed by affidavit that the lady was l)orn before the marriage of her p.arents, and that there were very strong grounds indeed for supposing that she was not a legitimate ciiild at all. I thouglit it a proper case, in.asn\uch as the expense of taking the accounts would have beeu enormous, and the whole suit would have ended in nothing but costs if the plaintiff did not establish her legitimacy, for the issue of legi- timacy (U" illegitmacy to be tried first under tiiis Rule. I so directed, and, as I am informed, the result was that the lady did not succeed in estaldishing lier legitimacy, and there was an end of the action, which w.as exactly what 1 anticipated. . " In a case of this kind, my opinion is, that the .Judge must have some evidence which will nuike it at least probable that the issue will put .an end to the .action. The plaintiff is not to be harassed at the instance of the defendant by a series of trials, each trial taking TRIAL. 397 issue on every link of the plaintiff's case. That is not the meaning K^ig 258. of the Rule, as I understand it, Imt it may properly be applied in sucli a case as tliat I have stated, wliere tlie .Indge has Hfrious reasdu to believe that the trial of the issue Mill put an end to the aetiim. " I have had a case in which the plaintiff alleged a very long title to, and claimed an estate. He alleged himself to be the heir-at-law of a person wiio was entitled to this estate. He wanted a great (leal of discovery, and the pos8essi(m of a large property. The de- fuudant said that the plaintiff was a pauper, that it was a mere experimental action, and that there was not a shadow of ground for his claim. In that case I felt no hesitation in directing an issno wliether the man was heir-at-law. It turned out that he was not, and, I believe, the case was abandoned and was never tried at all. " There was a third ease I remember before me at Chambers (I only give these instances as illustrations) in which a man brought an action on behalf of himself and all other tenants of a manor to restrain the inclosure of a common. The defendant Staid, ' This will be a very expensive action to try ; it will involve the customs of the manor as to rights of common,' and that, as usu.al, they had put up a man, who although not technically, was really a pauper, to sue on liuhalf of himself and all others, the only result of which action could be that the defendants, if successful, would have to pay the costs out of their own pockets. They alleged and proved 1)y ath- (lavit that the person who was pl.aintiff, and who said he was tenant of the manor, was not so, and that his name, or the name of his ancestors, had never appeared on the court rolls of the manor. The only answer that I could get from the plaintiff' was, that he believed he was a tenant, but he could not show how. I thought before the defendants were put to the enormous expense of a trial of all the issues, it was right to put the plaintiff to the proof that he was a tenant at the time when the action was brought. ... "The defendant has of course a right to shape his own case and to say to the plaintiff : ' You must prove every part of your case ; if I can put my finger on one part of your case and shew that there is no foundation for it whatever, it is quite wrong to subject me to the whole expense of a protracted investigation, and especially when you, the plaintiff', cannot pay the costs of it.' " In the subsequent case of Piercij v. Yonw/, 15 Ch. D. 474, the learned Judge stated that the Rule was intended to be applied in exceptional cases only ; that the object of the Judicature Act was to try all disputes together, and that it was considered a beneficial object. " Separate trials of separate issues are nearly as expensive as separate actions, and ought certainly not to be encouraged, and they should only be granted on special grounds." It was there held that a defendant in a partnership who had set up by counter-claim, an agreement by the plaintiff for sale of his interest in the partner- ship to the defendant at a stated price, was not entitled to have this issue tried before the plaintiff's issues in the action. In the Tasmanian Railway Company v. Clark, W. N. 1879, 106 ; 27 W. R. 077, the Court of Common Pleas refused leave to try the Hability of a surety, before that of the principal ; and the Court of Appeal declined to interfere with their discretion. Where a reference would be ordered by the Judge as to a question of account, it is proper that the question of liability should be tried separately from the question to be so referred (Liverpool, Brazil. trial. In Miliitiich V. Lloyils, W. N., 1875, 200, an action for li})el, an application hy the defentlaut to have the question of libel tried hefore the question of damages w.s refused by Lush, .!., who said : " 1 do «lo not think that 1 could in this case separate the (lucation of dam- ages from the (juestion of fact without injury to the plaintiff." In Dent V. Soirreiijn Liff Anaurance Vuinpanii, \V. N., 187$), 33, the validity of a life policy being the matter in dispute, an application by the idaintitf that the issue, whether the deceased was a nmu of temperate or intemperate habits should be tried first, was refused by V. (J. Bacon, who said that "this particular issue could not be so severed from the rest of the case as to admit of its being heard separ- ately by a jnry." The Rule applies not merely to questions of fact, but to mixBd questions of law and fact (Tasmanian Ry. Co. v. Clark, sup.). See also Tattersall v. National Steamship Co., in note to Rule 249, and Pooleif v. Driver, 5 Ch. D. 458. 4. Every trial of any question or issue of fact by a jury shall be held before a single Judge, unless such trial be specially ordered to be held before two or more Judges. (R. Sup. C, 1875, Order ^6, R. 7.) Identical with the English Rule. See sec. 28 of the Act. As to the cases in which a jury may be had, see notes to 3. 45 of the Act. 5. Notice of trial shall state whether it is for the trial of the action or of issues therein, and the place and day for which it is to be entered for trial. It may be in the Form No. 27, in Appendix (B) with such variations as circumstances may require. (Comp. R. Sup.C, 1875, Order 36, R. 8.) By the Englisli Rule the notice of trial is to state the place and day in actions in the Q. B., C. P., and Exch. I), only. The above Rule, otherwise corresponds with the English Order 30, Rule 8, as amended by Rule 12 of December 1875. See Redmayne v. Vaiujhan, 24 W. R. 983. Notice of trial of an action in the Chancery Division for the Winter Assizes at Hamilton, was held good where no Chancery Spring Sittings of Hamilton had been tixeJ [Rynial v. McEachern, 3 C. L. T. 106, approved in McLean v. Thompson, 9 Pr. R. 553). Notice of trial was amended nunc pro tunc where given for trial at Belleville, naming the day fixed for the Assizes at Picton, the Belleville Assizes being over and the party served not having Ijeun misled {Walker v. Terry, 7 Pr. R. 340) so where "September" was inserted instead of "October," as the mistake could not mislead. {Bank of Montreal y. Cameron, 7 Pr. R. 188). Where after notice of trial given by plaintiflF, the defendant obtained an order postponing the trial on payment of costs Held a conditional order not staying the plaintiff's proceedings and one which the defendant was at liberty to abandon without being liable to pay other than the costs of the application {Allen v. Mathers, 9 Pr. R. 477). « i \ii 1 1 H NOTICE OF TRIAL. 399 6. Ten days' notice of trial shall be pfiven, unless Bnlea the party to whom it is given has consented to take 269-261. short notice of trial ; and shall be sufficient in all ^^^ cases, unless otherwise ordered by the Court or an.'.ure?^ Judge. Short notice of trial shall be five days' siiort notice notice. (R. Sup. C, 1875, Order 36, R. 9 ; Comp. R.fi^'^^i">''- S. O., c. 50, s. 244; G. O. Ch., No. 163.) This Rule is identical witli the English Rule, except that short notice of trial is there declared to be four days, instead of five. The ten days are computed in the usual way, exclusively of the first day and inclusively of the last, under Rule 4r)() ; the words " not less than ten days " in Rule 'J55 have not the effect of nuaking the ten days mentioned in this Rule clear days (HarjMr v. Marx, 3 C. L. T. 309). Where notice of trial is served on the Toronto agent of a solicitor, he is not entitled to two days' additional time, as formerly under Kev. Stat. c. 50. s. 58 (Luimden v. Dai s, 1? C. L. J. 363 ; 1 C. L. T. 615). Where by arrangement papers were served by mail, notice of trial posted in time, but received one day short of the ten, was set aside (McDonongh v. Alison, 9 Pr. R. 4). On motion to set aside a notice of trial served a few minutes late, service having been admitted, but immediately afterward repu- • diated, it was held thot unless service of a good notice was negatived the service would not be set aside ( Wr'ujht v. Way, 8 Pr. R. 3t28). This Rule applies in actions of replevin ( Wallace v. Cowan, 9 Pr. K. 144). R. Sup. C, 1875, Order 36, Rule 13, provides, tliat no notice of trial shall be countermanded except by consent or leave of the Court or a Judge. This Rule has not been ado))ted in the Ontario Schedule. By the former Common Law practice countermand was permitted, but not by the Chancery practice. Since the .Juilicature Act, notice of trial cannot be countermanded by either party {Friendly v. Carter, 9 Pr. R. 41). In the case of a remanet no notice of trial is necessary {Donoran v. Bonltbee, 19 C. L. J. 352 ; 3 C. L. T. 501). A case postponed by order at the trial on defendants' application is a remanet (ib.). 260 7. Notice of trial shall be given before entering the x.,titf must action for trial. (R. Sup. C, 1875, Order 36, R. io.)|;'-,«';;,"„t,y Identical with the English Rule. ol actioh. 261 8. After notice of trial is given either party may Entry for enter the action for trial. If both parties enter the*""'' action for trial, it shall be tried in the order of the plaintiff's entry. (R. Sup. C, 1875, Order 36, R. 15.) This Rule corresponds in effect with the English Rule, so far aa the latter relates to cases which are not to be tried in London or Middlesex. ' 1 1 ^itp 1 w ; . 1 . § ■,■' •■■ ''' : 'Ir ■ .;! II l 1- ! ' , t '■ '! ! 1 ''■■ ■ i . i- I -i ii i: il- \\ ls :. ; H ' :i . " Jig ; ' f ■ ■ '1 j mS K <■-! • ^ 1 »'■'■■ ;| '49 1 .J:.]i dl ■1 MliV\iWk 400 ONTAHIO JUDICATURE ACT, 1881. Bales 261-204. 262 Copy of ]lIu!lllillgN. 268 So pa I a to triaU for actions ill Cli. Division 264 T'nif of f iitry for trial. The effect of tliis Rule aiul I'.ule 204 is to nipei'sede the fnniier Conimnn Law practice, by which the 4. No olficer has now power to issue a rule for cost's, and the Master in (,'hand)ers has no jurisdiction to entertain an application for them ('fopkinn v. Smith, \) Vr. \\. 285). 9. On the day before the clay for hokliii<^ the Court at which the action i.s to be tried, the party entcrini^r the action for trial shall deliver f.o the i)roper officer one copy of the whole of the pleadin_<:js in the action. for the use of the Judj^^e at the trial, such copy \.c lie certified as a true copy by the officer havinf,^ chari^c of the i)leadin^s filed. (Comp R. Sup. C, 1875, Order 36, R. 17 ; R. Sup. C, Dec. 1875, R. 14.) The Knglish ()rivision (15. Sup. C, JJec. I87(), H. i). In this I*r )vince, all actions triable on circuit are to be entered with the sanu otlicer, and tried without any dis- tinction as to the Division.s in w lich the actions are l)roiight, mdiss provision is made under Hule '- i.S, for the separate trial at any County town of actions to be tried there from the Chancery Divi- sion. See Jii/iiKtl V. McEaclwru, in note to Uuli 258. 11. Actions in all the Divisions shall be entered not later than the third day ne.xt befo'-e the first day of the Assizes or sittings ; b :t the Jud^e may permit any action to be entered after the time above limited, if upon facts disclosed on affidavit, or on the consent of both parties he see.s Ht to do so. This Rule shall be construed to apply to County Courts. (Sec R. S. O. c. ^o, s. 248). By the i), L. P. Act, sec. 248, the record of nixi pritm was to be entered at any time during the live days next before the commiBsiou TRIAL. 401 (lay ; jukI "» tho said citininission day at any tiiiK- Iti'fmv noon, un- Rnlea Kss till- ..'udgi; should uii atlidavit juTinit it to hu t'ntiriil al'tii'wards 264-266. In Cliaiiuury (< >rdi;r !(»;{) c.isfs woru .sut ilkhis V. Siiiitli, \) \'r. W. '-'.S.'), in note to l!ul.' •-•»)!. The provision tliat the Kidr shall li • eonstiued ;is applying to I'oiuity ( 'ourts arises from the IJiile of the ( 'omity ('ourts ditl'eriiig from the former Kule ot the Su|pi'rinr ( 'oiuts in this, that section 'J4S of the ('. L. I'. .\et provides that tiie iccord of ni.si /trhiM shall he filtered at any time iluiiuu' the live days next liefore the commission (lay anil on said (.'ouMiiission day at any time liefore noon ; wiiile in tlic < 'ounty ( 'oiirts, hy section ■_'•"•(), the provision is that the ]ilain- till' is to enter the ri'cord on or liefore the lirst day of the sittings of the Coui't witliout any restiictinn ;is to live di^ys or to the hour of uiioii ;, and liy the l!Mlth Ituh' it is provuled ordy that the practice fur file time tteing of the High Court is to apply where the present jiractice of the County Courts corri^sponds with that ot the Sujierior Courts. (J. Where the DenutA- Clerk (;f the Crown aiul..^®^,., Deputy K(\L,nstiMr iii any County are not tlie saine^imni person, all actionsshall be so entered with the Deputy '"'^'"** Clerk of the Crown, except in cases under Rules lo and l,^, hut the Deputy Kc.;istiMr shall attend the tiial of actions brought in the Chancer)' Ui\'isiun, .iiid sli.dl be entitled to he same fee as if the cause had had been set down uilh him for he.irin^'. No correspondinL' i'liiglish iiule. liy s. (i4, suli.-s. 4 of the .\et, tile oliiees of Deputy Clerk of the Crown and iV-puty Registrar (ii't Local .Master) are to he eonsolidatcd .is vacancies occur, unless the Presidents of th( hivisions, or a iuiijorit\ ' them, recommend (itlierwisc. The I'ct! |i:ivaiile to tiie l)epiiC\ ■ ''erk of the Ci'own is S;{ (44 V. c !S, s. 1). ' 13. In case of provision beini; made for tlie trial at . ^®® ;i separate time and placi: of actions broiiLj^ht in or i" i''"iii:"ie^ assi-ned to the Chancer\- Division, the actions shall n'u' "'**''" be entered for trial with the Re^^istrar, or Depaty Re.:;istrar, as tiic case may be, accortlin<.j to the pre- sent practice of the Court of Chancery. No eorresponding Knglish Rule. See Kule 'Jli.'l supra. The former Chancery Practice as to the hMigtIi of notioe of trial is not introduced by thia Rule, lluie L'j'J icgulatcs the length of % ■ m iliit 402 OXTARIO JUDICATURE ACT, 1881. Rules notice in all the Divisions. The present Rule only designates the QQ7 oflo officer with whom entry of the f^ase should be made (Barker v. Furze See Ri/mal v. McEachcrn, in the notes to Rule 258. Separate H- The party entering an action for trial shall in- lists of de- dorse on the copy of the pleadinluiiititt'. 15. If, when an action is called on for trial, the plaintiff appears, and the defendant does not appcc'i, then the plaintiff may prove his claim, so far as t' .^ burden of proof lies upon him. (R. Sup, C, 1875, Order 36, R. 18). Heretofore, in actions of ejectment, if tlie defendant did not a])- pear at the trial, the plaintitl" was entitled to a verdict without any proof (11. S. (). c. ")!, s. .S2). Hereafter, ejectment suits will boon the same footint; in that resi)eet as otlu'r suits. See GulUeb v. Clark, referred to and discussed in 72 L. T. (Journ.) 398. In the cases dealt with by this Rule, it docs not appear necessary that the plaintirt" should prove service of the notice of tv\i\\[Clwrlti'iii V. Dickie, l.S Ch. I). KiO). This is in accordance with the practice at Law. There had been a previous decision by Fry, i., the otiier way (Curks/ioft v. Luii'luii (.'eiirnil C'lih C'<> , 'Jti \V. II. ;il ; \V. \. ls77, 214). See note to ne.xt Rule. 16, If, when an action is called on for trial, the tle- fendant appears, and the plaintiff does not appear, the defendant, if he has no counter-claim, shall be en- titled to judgment dismissing the action, but if he has a counter-claim he may prove such claim so far as the burden of the proof lies upon him. (R. Sup. C, 1875, Order 36, R. 19.) Same as the English Rule. c, TRIAL. In such Cease the defendant is entitled to judgment dismissing the action with costs (Furrell v. Willi', .S(> L. T. 95 and cases infrn. ). The (Icrendant need not prove service of notice of trial on him (Juini's v. Cniw, 7 Ch. 1). 410, and lie Palmer, Skipper v. Skipper, '.Vl W. R., 8.S ; 49 \j. T. r>")3 ; following Ex parte Lou'm, 7 f"h. I). 100 ; not follow- ing Cockle V. Joiice, 7 < "h. D. ")(). See Chorllon v. Dickie, l;{ Cli. D. KJO). But where ntitice of trial had been given hy the plaintitl', and he (iled a lii^uidation petition, umlcr which a trustee had been ap- pointed, and no one ajipeare*! .at the trial for the j)laintiff or trustee, ])roof of service of notice on the trustee was held to be necessary (Eldridije V. Jiitrijr.'is, 7 ('h. D. 411). The practice in P^ngland, where the plaintift' does not ai)pt'ar, is not to swear the jury, anil any costs whii'li the defendant may incur, 1)V having the jury sworn i)\ such case, the defendant may not be entitled to get taxed (Lane v. Eve, VV. N. 187(5, 86). Where a test action came on for trial, the piaintitt' was not pre- pared to proceeil and applied for a postponement to which under the circumstances so far as his own interest was concerned he was not entitled ; lieli/, that the Court could not regard the rights of the plaintiffs in tin- otiier actions, and must dismiss the action witli (^osts (Jt'ohinsoii V. (J/iiiilirirk, 7 Ch. \). 878). See note to Kule 170 h. 403 Rules 289, 270. m ^ 270 ly. Any verdict or judi^mcnt obUiined ^vhcrc one j^,.,(|„^,,j^i,,y party docs not ajipear at tlic trial may be .set a.side by i'"'^'"""'' ''y the Court or a Jud-^e upon .such terms as may seem fit ; such appHcation may be made at the Assizes or, (i() sittiiiLjs at whicli the trial took place, or in Toronto. (Comp. R. Sup. C, 1875, Order t,6, R. 20.) (a ) Instead of what follows, the JMiglish Kule has the words " in Middlesex." The I'lnglisii Rule also re(|uir.'s the ap|>lication to be iiKule within six days after the trial. Wiiere a defendant was iu)t represented at the trial of an action, because his solicitor was ignorant of tlie fact tiiat the action had witii others been transferred from one Judge of tlie ( 'iiaru'ery Divi- sion to anotluT, l'"ry, .1., held that the solicitor had tiiercin l)cen guilty of gross negligence, and that tlie plainti!!' could not be reliev- ed. Hut it was held on ai)peai. that tiie judgnu'iit must lie .set aside, (Ui paynu'Ut of the costs of the day. .lessel, M. I{., ob.-sfrvini' : " Solicitors cannot any more than othei- men coniluet their i)usiness without sometinu's making tlips : ai'd where a solicitor watches tlie li.st, ami happens to miss the case, in constijuence of which it is taken in his aiisenee, it is in accordance with justice, and witli the course of practice, to restore the action to the paper on the ti rms of tlif [larty in default paying the costs of the .lay ; which include all costs thrown away by reason of the trial becoming abortive'' [.'hir- ijtiiiir v. 'J'lii/liir, 9 Ch. 1). 4). W'iiere tiie Court was satistietl tiiat the absence of the (h'fendant and his counsel, was purely accidental a judgment by ilefaidt was set aside on jiayment of plaintifl's costs of hearing, including reason- able disbursements to counsel, and the costs of tin; ai'pli<'ation ( Hi;///;- v. /iuijli'.s, 17 c. L. .1. 4'27K On similar terms ,111 action tlis- inisetd was restored to the paper where in conseciuence o;" the illness oi the plaintill s solicitor, tlie necessary ariangemouta wur« iiot ma.le {Birch v. M'(7/Ju/«^ W. N. 1870, 108). m ;-l .ii.iwnl : m 404 OXTAIUO JUDICATURE ACT, 18>Sl. '.!^' Boles 270-272. 271 Kvidi iicc iiiiiitli'il Ky iii'ciclclit nl mi W'lioic Olio lounsel head J)ueii unavoidaldy detained by u railway ncricUiit, ami tliu other been i)reveiited by indisposition from eoii- diicting tbf (.'ase (sue Viicklc v. Join'i, in llnnjo'iw v. T'ti/lar, 'J ( "li. I), .'{i; auti wliere tlie defendant liad personally been gnilty of no negligence, though his solicitor had neglected to attend to the tlefiiiee and the defendant niaile an application within six days of his liaving heard tliat the trial had taken place, the ( 'ourt granted an extension of time, to enal>le liim to make api)lieation to set aside tlm judgment (Mirln 1/ v. Wilson, 2') \V. I{. .'WO). So also where one side ha.l trusted to a reasfiualile expectation of a settlement of the dispute ( IVrhj/it V. V/i/onl, •-'() W. K. IW.) ; 47 L. .1. Chy. .■.44). As to delay in a])plying, see Mni/ v. Ilviul, \V. N., 1880, ^(i ; U'llk'nis V. Iitilf\>ril, .S.") I.. 'V. iVl'l ; Wilistir v. Cmil Coiisitiin-rs Co.. I Charl. ('a. (("'ourt) \'A\ ; Attrow/ v. Chh-ln.-^tir, :-$ g. U. D. "rl'l, ami notes to IJules 7- and '1\A. iS. Where, throiit^h accident or mistake or other )art\' oniit.s or fails to nroxe some fact can l)art>' iutak.', materia! to liis case, the JiKJ^e may proceed with the 'I'ilud!"' trial, subject to such fact bein<; afterwards proved at such time, and subject to such terms and conditions as to costs and otiierwise, as the Judi^e shall direct ; and if the case is bein;4 tried b}- a jur)', the Judi4"e may direct tiic jury to fmd a \'erdict as if such fact had been proved, and the verdict shall take effect on such fact bein^ afterwards proved as directed ; and if not so proved, judgment is to be eiitereti for the opposite part)', unless the Court or a Judf^c otherwise directs. This Rule shall not apply to an action for libel. 2s ew. The alistaining by a party from jiroof untler an idea tliat his ae nil I 'inure, \\) C. L. J. .Sol). tSeo also B'kjuI'i/ v. Dickbinuu, 4 (Jh. I). 24 lu note to Kule 273. 19. Tlie Jud^^e, if he thinks it expedient for the i^'j^ interest of justice, may postpone or adjourn the trial for such time, and upon such terms, if any, as he shall 272 Adjourn w ' w ' ill tlM TRIAL. think fit. (R. Sup. C. 1S75. Order 36. R. 21, sV, R. S. O., c. 50. .s. 259. rileiitical witli the P^nglish IJulo. Whore tlie hoarinir of an action \v '-i ailjournt'd to allow the plaintifl's to aiM pai'tics, the ])liuntirts w re orili'i-i'il to pay all tin; i-osts iiictiiTuil hy the at'tion haviii;.' hi-cn ill tilt! ]i.ip''r for lieariii;,' ; ancl not iiicri'lv a lix<'il sum for custs of tlioplied to postpone, .see Allin v. Muflii- , i:. ( '. [.. J. 71». 405 Rules 272. 273. 273 20, Upon tlic trial of an ai tion, tlfc JikIl^c may, \ idcnct' in the cause closes {/'unii'// v. (Iridt W'xtfni I'luhmni Coiii/Kiin/, .'14 L. T. |--'t) ; si'f I (,>. H. I). ().S()). In such a case the action heiiiL' for nei.;li<;ence the other tlcfeiid- aiit called witnesses, the etlect of whosi; cviilfiice was to throw the hlaine on his co-defendant, and they wtsre eross-cxamiiied l)y his counsel, a verdict heiiij,' foiiinl against this defendant and in favour of the other ; it was ludil that these eii'cumstanees did not .ntitle the uiisuceessful defendant to ohject to the verdict. (//». 1. Where there arc several distin-.'t issues to he tried, tlie.luilu\ may. without tin; (•oiisent of the parties, accept the venlict of the jury ujion those issues on wliicii they agree. ;iiiil disciiart'c tiiem upon the others, leavim; the parties if they think tit to take ilown the un- decided issues to a iii'W trial ; ami the Coui't will give judgment on the ileeitleil issues, and has ptiwer to semi ilowii the umleeided issues to a new trial ( Marsh v. /Mitat'.s, 45 L. .1., ('. 1'. .')(),")). Where a party is taken l>y surprise Ity a point inatle against him at the hearing, the dudge may. if he thinks right, at any stage of the trial allow him to jirodncc relmtting evidence ; and if -^iicli jicr- luissioii is refused, the <'ourt of .\()peal will, in a propei ea.~e. permit til • fresh livideiice to he tak<'!n on the apjieal (/{ii/.iliij v. lUfkiiismi, 4( :. I). 'IW. •w 406 ONTARIO JUDICATURE ACT, 1881. ti Bale 273. '" ^ ^"'* ^"'* "•" iJij'mction to restrain a nuisance caused hy a chemical manufacturer, the plaintiff's counsel applied at the close of his speech for lil)erty to adduce evidence to explain (as the idaintili's witnesses ha«l hail no opportunity of doing) certain evidence of llic defendant's witnesses as to various vapours arising from a matei ial (asphalt) stated to be usetful whether the ptarty is entitled to put in such evidence as of right(/y«'A/ v. Dai'imn, 29 W. |{. 192). After a judgment hy consent has been jtasseil ami entered, it cannot afterwards he varied on the ground of mistake, except for reasons siitHcient to set aside an agreement (Altitnnii-iiimntl \, Tiim/hif, 7<'h. I). liHH). As to apjieals in sucli east's, see s. 'A'2, of the Act and i s. When the .ludg does not direct judgment to he entered, this Hule would seem to enable him, as formerly under Uev. Stat. c. oO, s. 2()2, to indorse on the recortl or eoj)y of ])leiidings his judgment uj)on which judgment may l)e entercfl as though the indorsement ha l^). H. 1). 2('>.'i. It would seem that when the jury dis.igiee .iinl ;ire discharged, a motion to enter a verdict for defendant may be nuide {Hunk' uf II. A'. A. V. tjilihi. i'iitterson, •!. .A.. .Nov., ISS.'Ji. In th.it ease tin- action was upon jironiissory notes : the defence relieil on was the insolvency of the (lefemlant and his discharge under a tieed <>f compnsition .'ind dis- charge duly contirnied. In reply tlu' plaintitls attacked the discharge on tlie grounds nt' tfaud and frauilulent preference. < >bjeetinns were taken to tin; valiy giving to that (ireditor a valu.ible sccnnfty. .\t the trial tiie defemlant objectiid that there was nil evil' nee tu left to tin- jury by the iTun the undisputed facts. ol»jec- tions t;i.:al to the discharge were establi.-h.'d: the defemlant contend- ing th,. tlie disi'harue was good as ■■ig;un>t such ol>jeetions, and tliat there was no evidence proper to go to tbe jury on the issue of frautl or frandulenr ])referenee. Moth motion^ were refused, though iippa- rently lousidei-ed proper in point of form, the .hnlgc being of the opinion that the issue ;is to the valiility of the discharge could not jiroperly have !»«;"• withdrawn fp«the originals at the trial or hearing ; and in cise of reserving judgment Counsel's briefs were left with him. 2V Where any cause or matter, oranx- question in .„ .^7® ^ •^ . ' ^ I Ti'i.ii before any cause or matter, is referred to a referee, he ma)-, n luree. subject to the order of the Ccnirt or a Judge, hold the trial at, or adjourn it to any place which he may deem most convenient, and have any inspection or view, cither by himself or with his assessors if any, which he ma)' deein expedient for the better disposal of the controversy)' before him. He shall, unless otherwise directed by the Court or a Judge, proceed with the f n Ii I.': 1 ■■ II it^J !j ■ n '•■ 1 i 1 ■ : ; I II 408 ONTAKIO .HDICATURK ACT, 1881. Rules trial df die in diem in a similar manner as in actions 276-279. tried by a jury. (Comp. R. Sup. C, 1875, Order 36 R. .30.) Identical witli the English Rule. It has been iield that an ai)[>lieation to review the finding of a iv- foree under tlus .ludieature Act must he supported by evidence, du atHdavit or otiier\vi:H', of the proceedings before him. (Jounael wlio appeare4). The provision as to a referee sitting dr die hi dii'in is directory only ; and non-compliance with it is not a ground for setting aside his tin.ling (/M'hisoi, v. /,',>/>! n-suii, 'A') L. T. .S;i7 ; '-'4 W. K. G7').) 277 Prori'cdiiij at trial l..- fore rcl'i re 24. Subject to any order to be made by the Court or Jud^e orderini;- the same, evidence shall be taken ' at an)- trial before a referee, and the attendance of witnesses may be enforced by subjxena, and every such trial shall be conducted in the same manner, ;is nearly as circumstances will admit, as trials before a Judi^e of the Ili^h Court, but not so as to make the tribunal of the referee a public court of justice. (R. Sup C.. 1875, Order 36, R. 31.) Identical witli the Knglish IJule. 'This Rule a])plies only whore tlu' reference is to an ollicial or s])ccial Referee under this Act, (I'liiimi/ V. Wh'iti'liii. \V. N., I88.S, 'J'Jol. For the practice on arlii- trations umler the ( '. L, P. Act, R. M. ()., c. 50, see sec. 'I'l'l, ct si'n. 278 Rcforee li;i autliority Jiiilgi'. 2> 279 But tiot ti) commit to Iirisoii. Subject to any sucli order as last aforesaid, the ' referee to commit any person to prison or to en- force an>- ortler by attachment or otherwise. (R. Sup C, 1875, Order 36, R. 33.) Identical with the English Rule. ,L, KVIDKNCK, 409 Kalea 280-282. 280 .'ll'O siiUiiiit 27. The referee may, before the conclusion of any trial before him, or by his report under the reference made to him, submit any question arising therein for the decision of the Court, or state any facts si)ecially '|;/,','''it'' "'*^ with power to the Cour? to draw inferences therefrom, 'i;"^tionH to and in any such case the order to be made on such sub- mission or statement shall be entered as the Court may direct. (R. Sup. C, 1875, Order 36, R. 34 as amended by R. Sup. C, March, 1H79, R. 5 ; R, S. O., c. 50, s. 211.) Iileuticiil with the first part of Knglisli Uule .'U reft-rreil to. 28. The Court shall have power to require any ex- (.,,„j,^„„y planations or reasons from the referee, and to remit '.init ciisf the cause or matter, or any part thereof, for re-trial or"\iii",'iicu further consideration, to the same or any other referee ; '"'*'■"■ or the Court may decide the questif»n referred to an)' referee on the evidence taken before him, either with or without additional evidence, as the Court may direct. (R. Sup. C, 1875, Order 36, R. 34.) Corresponds witli tlio ett'ect of the Kiii;lisli lt\iie referred to. The powers given l)y these Kides are more extensive than those (•onferrelanations or reasons, or send the mattei' liaek for re-trial or reeonsideration, and to anothei- referee if it tliiiik.^ lit : or may itself deeide the (juestion on the same evidenee. or witli addi- tional evidence. See notes to sees. 47 and 48 of the Act. pp. ()4-ti!>. O R D K R XXXII. KN'IDHN'CK CKXKHALLY. I. In the absence of an\' ai^reement between the 282 parties, and subject to these Rules, the witnesses at trial of the trial of any action or at any assessment of dam-" ^"'"" a^es, shall be examined viva voce and in open Court, but the Court or a Judge may at any time for suffi- cient reason order that any particular fact or facts may be proved by affidavit, or that the affidavit of any witness may be read at the hearing or trial, on such conditions as the Court or Judge may think reason- 'MM I I '' :'!-!« '■^\ _«.. Lit i liill m ONTAKIO JUDICATURE ACT, 1881. Bolo 282. able, or that any witness whose attendance in Court ou^^ht for some sufficient cause to be dispensed with, be examined before an examiner ; provided that where it appears to the Court or Judi^e that the other party hnna fuh desires the pro«luction of a witness for cross-examination, and tliat such witness can be pro- duced, an oriler shall not be made authori/.injr the evidence of such witness to be j^jiven by affidavit. rComp. R. Sup. C. 1875, Order 37, R. 1 ; G. O. Chy., No. 176), The Knglish l!ulo provides for the uxainiiiing by interrogatories, or otherwise, of a, witnes.s whose attendance ia dispenaed with. The Hnles are otherwise tlie same. The autliority to permit the use of a(h(hivits at a trial is new. so far as rehites to ( Common Law (^mrts. Ill ('lianoerv. exhil>its miglifc formi'riy l>e proved at the liearing in that way. S;'e also Chy. (!. O. ITti. For the j)rocedure wliere evidence is to he hy affidavit aee Kule .SOI. The Court has only power to order the evidence for the trial of the action to he taken l>y athdavit. It has no |)ower on a motion for judgment l»y default of pleading to receivt; evidence hy atlid.ivit to prove till' allegations of the statement of claim against iufant.s or ikhi roiii/xilis iiunlis, except where Itule.'Vi'i is applical)le. ^See Ellis V. Jlal.hhi.s -}{) L. .J. .->!•_»; 17 />/i ))rove a will in solemn fi>rm, Ilannen, P. refused to allow the execution and attestation of the will to l»e proved bv athdavit (Cook v. Tom- lin.-iill v. Fowh-, 1 Ch. J). 004). The Court has no power to order the whole evi- dence to be so taken without consent (0 order or leave of the Court (Fn/er v. ]Vijii, '24 W. R 3!)0, it was lield tiie ('.nirt oiigiit not, under 15 and 10 Vict. c. 80, s. 4'2, or s. ."»7 of tiie .hid. .\ct (Ont. .^ct, s. 48, p. 07), to make an order itefore trial, appoiiit- inga scieiitilic person to report on a (juestion of fact. Tlie .Fudge at any period in a case may allow further evidence to 1)1' called iiy either party for his own satisfaction, tiiougli it be (louiitful whetiier it would lie ale, on the request of the party (k'.siring it, as of riglit (limlil v. iJuriwu, '2!' \V. II. I0'2). Ill Kngland, parties as well as witnesses may be e.vcludtd from Onirt during the examination of otiier witnesses {Ontiuini v. Ontniin, \V. .\. IS77, 75), but a witness will not be excluded during tiic read- ing of atlitlavit evidence (l^miiimaii v. //(//, '24 \V. II. '245). See ahso W. N. 1870, '207. In Ontario the exclusion of partiis is in the dis- cretion of tiie .fudge (Sec Kev. .Stat. e. 50, s. '200). 283 2. Upon any motion, petition or.suiniiion.s, cvitlcncc ,.^j,,,,,„.j^,, may be <.(ivcn by affidavit ; but f'r?^ any person having; i"]'!''."'- "•■ made an affidavit to be u.sed, or wliich shall be used on any motion, petition or other proceeding before- the Court, shall be bound to attend for the purpose of being cross-examined, on being served with a writ of subpcena (id fv^liftcKndiiin, but the Court, never- theless, may act on the evidence before it at the time, and may make such interim order, or otherwise, as appears necessary to meet the justice of the case. (Comp. R. Sup. C, icS75, Order 37, R. 2 ; G. O. Chy., No. 268.) (a) Corresponds with the Knglish Rule to this point. Wiiat follows is taken from ('hy. Order No. 208. The English Kule pro- vides that the Court or .Jutlge may, on the application of eitiier party, order tlie attendance for cross-examination of tiie jjcrson making any such affidavit ; and under that Rule in Slon'i- v. Sli mom, W. N. 1870, 40, an ap[)lication to cross-examine garnislie : was refused by Lindley, ,]., he holding tliat the English Rule ajiplii-.. to an ordinary witness, not to a jiarty. Cliy. Ortler 'liSS and tliis :ii^ % • I )Q ■'f IMAGE EVALUATION TEST TARGET (MT-3) 1.0 I.I 1.25 S la 1110 1.8 U ill 1.6 Photographic Sciences Corporation 23 WEST MAIN STREET WEBSTER, N.Y. 14580 (716) 872-4503 412 oxtaRIO judicature act, 1881. 11 Rules ''"'® ^VV^y *^ "'"y person who has made an affidavit ; but he can 183-285- ""^y ''^ eross-examineil u2)on it vvlien a motion upon which it may l)e used is penr()i)er, more especially as affi")), A defendant might formerly be exainiued upon his affidavit on ])roduction under Chy. Ord. 268 ( Dolimn v. Dohson, 7 Pr. 11. '2')6) ; but it has been held that that Order is super- seded bv this ilule. under which the examination cannot l)e had (Flrfh v. h'l/aii, 2(» C. L. J. 175). The cross-examination is of right ; and where the plaintiffs in a foreclosure suit lived in .lainaica and tiled their affiilavit to ])riivu the mortgage debt, it was held that there was no discretion to refuse a commission to .Jamaica to cross-examine the plaintiff on the affidavit, l)ut leave was given to withdraw the affidavit and jjrove tlie matter otherwise ( Towni'iid v. Hunter, .S C. L. T. 310). Under tlie l"]uglish Rule cross-examination is in the discretion of the Court (see that Rule and Foduii v. Cinnhcr/ci/;/'-, \V. N. 188.S, 116; 48 L. T. 776, following Raiimoml v. T(t}mm, '-'2 Ch. D. 4.S0). Cross- examination on affidavits filed on amotion not properly made may be refused (/irtH^• o/ Cunimt'rv.e w /irkkers, 17 C. J. J. 476). Parties to Chamber motitms may cross-examine on affidavits, vithout order, according to tiie former CUiancerv practice f /iiirrom.'! J"arem, 1 C. L. T. 615). It has been lield that an afhdavit tiled cannot be withdrawn to exempt the deponent fnnn cross-examination upon it [Re QikdIz ffill, <(•'•., Co. <'.rp. YoiUKj. \V. X. 1882, l.S.S). See note to Rule 304. 284 Affidavits 3- Affidavits shall be confined to such facts as the how fiiiiiieci. ^vitness is able of his own knovvledf^c to prove, except on interlocutory motions on which statements as to his belief, with the s^rounds thereof, may be admitted. The costs of every affidavit which shall unnecessarily set forth matters of hearsay, or ari^umentative matter, or copies of or extracts from documents, shall be paid by the party filing the same. {R. Sup. C, i(S75, Order -i^j, R. 3 ; G. O. Chy., No. 259.) Identical with the English Rule. In proceedings which finally decide the rights of parties, eviilence on " information and belief" is not admissible, though the form of the proceedings be interlocutory (GiUx'rt v. Emlcan, i) Ch. D. 259). Notwithstanding this Rule, the common affidavit l)y a practi- Uoner verifying a petition is sufficient, though some of the alle- gations in the affidavits are only as to the belief of the petitioner, and although there are other affidavits in support of the petition which shew the sources of the petitioner's belief {Re xVc»" Callao, 47 L. T. 175). Costs of setting out the contents of written documents were dis- allowed in Himt v. Procter, VV. N. 1882, 12. Dep^Ls 4- The Court or a Judge may, in any cause or matter where it shall appear necessary for the pur- EVIPENC::. 413 poses of justice, make any order for thv. examination Rule 285. upon oath before any officer of the Cour' or any other person or persons, and at any p: ic, of any witness or person, and may order any deposition so taken to be filed in the Court, and may empower any party to any such cause or matter to i^ive such depo- sition in evidence therein, on such terms, if any, as the Court or Judge may direct. (R. Sup. C, 1875, Order i"], R. 4 ; G. O. Chy., Nos. 266-269.) Identical with the ilnglish llule. This Rule has received a very liberal construction, and may be applied at any stage of a cause, and though no motion is pending (FUkcn V. Chanihcrlain, 9 l^r. K. -S3), wherever a case of justice is made out (see Wdrner v. Musses, 16 Ch. D. 100). Under it, exami- nation has been ordered of a defendant before defence tiled for dis- covery (Flsken Cliatnln-rlabi, su/mi) ; of a witness on a pending motion who luvs not made an atKdavit (MoiiatjlKin v. Duhhin, 18 C. L. J. 180 ; '2 C. L. T. 200) ; a witness, when it is desired to obtain inform- tion, in order to serve a defendant with the writ (Si'dfjrr v. Barber, -7 Aug., 1881, Mr. Dalton ; see note p. 170). Examinations for the two last purposes can not now be had under Chy. Gen. Ord. 2G6, but must now be had by order under this Kule, which supersedes the (t. O. 266 {MoiKUjhau v. Duhhin, aup.) Tiiis Rule does not, however, authorize the making of an order for examination before trial of a person not a party, where no greater necessity exists than the convenience of the applicant in presenting his case for trial (C'arne;/ie v. Federal Bank; 10 Pr. R. 32). lu Turner v. Kyle, 18 C. L. J. 402 ; 2 C. L. T. 598, an action for seduction, the defendant denied all knowledge of the plaintifl's daughter on any occasion, and the plaintiil' on being examined did uot know anything about the alleged seduction ; the d fendaut having exhausted all regular and ordinary means of obtaining dis- covery with effect, was held entitled to examine the plaintitf's daughter under this Rule that he might know the case to be met at the trial. In Lanih v. Dodds, (Mr. Dalton, 8th May, 1883), the action was to establish an alleged will, siispecteil by the defendant to have been a forgery of the plaintiff's husband, who was not a party ; the plaintiff having been examined had no knowledge of it, but the circumstances under which it had come into her hands were sus- picious, and an order was made, under this Rule, on defendant's application for examination of the plaintiff's husband for discovery. In applying under this Rule to examine a witness before trial, it is not sufficient to shew that the examination will materially benefit the applicant. It must be shewn that he has unsuccessfully used the regular and ordinary means for discovery, or some other special reason must be given why the witness should be examined, out of the regular course, and not at the trial, for the first time (Hendrie V. Neelon, 19 C. L. J. 18 ; 2 C. L. T. 599). Under this Rule, also, orders are now made for examination of a ^xaiuinatl- witness de bene esse, for use at the trial, or on a reference in the °^"j * ^^ Master's office (^e Dunsford, 9 Fr. R. 172). See also Rev. Stat. c. 63, 8. 21. IP ' ■ r Wm^^^^^^BI ' 1 1 1 1 '■^'. kj.. ' u mm iM 'J! »' h* illl [ 414 Bnles 285, 283- I ONTARIO JUDICATURR ACT, 1881. Such examination is allowed where there is danger of loainj' tlie testimony of a witness from death or absence at the time of the trial. An order will therefore be made where a necessary witness is 1,'oing abroad, or is from illness, age, or other infirmity, likely to be unable to attend the trial ( Warner v. Mosses, 16 Ch. D. 100). If the ground is that the witness is over 70 years, or dangerously ill, or going immediately abroad, the apijlioation may be made fx jxirte (Dan. Pr. 817 ; Olioer v. Dickeif, 2 Chy. Ch. 87 ; Grippal y (fi/ilvi/, lb. ,S04 ; Blddir v. /iridfjes, W. N. 1884, 19 ; ;i2 W. R. 445' but the Court in its discretion refused to apply this rule to the extra- ordinary case of thirty witnesses over 70 years in Bidder v. lirldijes isnp.) Ande erson, He need Waddf-ll, In other cases notice should be served (see Anderson v. 1 Chy. Ch. 291 ; Spears v. Waddell, 7 Pr. 11. 260). If the only ground is tliat the witness is the only witness as to some fact this should be clearly shewn (Hope v. Hope, 3 Beav. 317 ; Jameson v. Jones, 3 Chy. Ch. 98). That the witness is going abroad is a sufficient ground, be going pevmanently or be the onlj' witness (Spears v. 7 Pr. R. 260). As to what must be shewn at the trial before the depositions when taken, can be used as evidence, see Dan. Pr. 819 (5th ed). In consequence of the provision of Rule 289, requiring consent to enable the evidence under a commission to be taken oiva roce and of Rule 299 staying the trial until the return of a commission the examination of witnesses out of the jurisdiction orally, or with- out a stay, has frequently been ordered under this Rule. It is not necessary to apply under this Rule for an order to ex- amine witnesses on a reference after decree ; the former practice of subjjfenaing without leave is not abolished (Rai/niond v. Tapsun, 22 Ch. D. 430). Coiuiiiiasious ou a refer- ence to a Slaater. ORDER XXXIII. COMMISSIONS TO EXAMINE WITNESSES. (See Rules of April, 1880, Form H, 30.) This Order is new. The English form of the order for a com- mission, as well as the form in use in this Province give in sul)- stance directions similar to those contained in this Order. Rut this Order renders the long form unnecessary. The form to be hence- forward used is given in the Appendix, No. 129. The power to issue commissions is given by Rev. Stat. Ont. c. 02, ss. 19-23. Where the person sought to be examined is the opposite party in the action, the application must be supported by an alh- davit stating the facts intended to be proved, and the Judge must be satisfied that the application is made in good faith, and not for the purposes of delay, (sec. ]9). Chy. (>. O. 221 is as follows :— 221. Under an order of reference witnesses may be examined before any Examiner of the Court ; and foreign commissions for the examination of witnesses without the jurisdiction of the Court, may on the certificate of the Master, be issued by the Clerk of Records and Writs upon prcucipe." COMMISSIONS TO EXAMINE WITNESSES. 415 Under this Gen. Order a Master has power to direct evidence, to be ■^^^[q 288. used on an inquiry before him, to he taken before any other Master, though not consented to {Jie Cdsi'ij, 1 C!hy. (Jh. 198 ; and the certi- ficate will not be given ex parte (McLennan v. Helps, 3 (Jhy. Ch. 193). A form of pr(P.c.ipe will be found in App. A. No. 90, and form of commissions No. 103. A commission may still issue under this Gen. Order ui)on the certificate of a Master, liules '288 and 291 refer to such certiticate. The cross-interrogatories should not be Hied in the M. O. but with tlie Clerk of H. & W. or other proper officer to be forwarded with the commission, (Dnrl'uujv. Darlimj, 8 Pr. R. 391). The Court has a discretion as to whether a commission to examine witnesses abroad shall be ordered [lie Imperial Lund Co. of Mar- urille.'i, W. N., 1877, 236 ; 37 L. T. 588) ; and an order was refused where it would cause delay, and the applicant had been dilatory in trying to obtain it, (Stciiart v. Gladstone, 7 Ch. D. 394.) iSo where the Court was not satisiied on the materials adduced, that the evidence was material, (Lamjen v. Tate. 24 Ch. D. 522) ; and where there was another action pending in the foreign country for the same cause [Mair v. Ander.wn, 11 U. C. C.>. B. 160). In Grant v. p. 226 Brett, Banqiie Franco- Eg ijpli<'nne, referred to in 27 W. R J., said: "I apprehend that the granting of a commission is a matter of discretion, and that the grounds upon which a commission is granted or refused is always a matter of comparison, namely whether it is more convenient that the commis- sion should go, than that witnesses shouhl be examined before the tribunal here, and the exercise of that discretion depends upon the circumstances of each particular case." Terms as to reading the depositions at the trial were imposed where the plaintiff applied to examine himself bj' commission (Nadin V. Basm'tt, 25 Ch. D. 21.) In Re Boj/se, Crofton v. Croflon, 20 Ch. D. 760, it was held that upon an application for a commission to take evidence abroad, the ('i)urt ought to be satisfied that the application is made ho)ui fide. Where the Court thoir iit the witness should be sul)jected to a strict cioss-examination on part of a claim in which he was interested, and the French practice was to have the examination take place through tlie Judge only, a commission was refused (see also Berdan v. Green- u-ood, 46 L. T. 524 ; 20 (.'h. 13. 764 (note), where the case turned on the fact that the person to be examined was the plaintiff himself, and tlie Court was not satisiied he could not attend so as to be cross-ex- aiuiued oira roce but, on the contrary, was keeping out of the way ; see Lanqen v. Tate, 24 Ch. D. 522, SpiUer v. Parin Skutim/ Bink Co., W, N. 1878, 228 ; 27 VV. R., 225 ; Grant v. Banqiie Frdnco-Eijypti- enue, supi-a). In the absence of special circumstances making it desirable that the plaintiff should face the (Jourt or jury in person, there is no reason why his evidence should not be taken by commission where he is residing abroad (Armour v. Walker, 32 W. R. 214 ; Banqiie Franco Eqyptienne v. Lutscher, 28 W. R. 133 ; 41 L. T. 468 ; W. N. 1879, 183 ; see Price v. Bailey, 6 Pr. R. 256). A commission to examine as a witness a person who has abscond- ed from the Province will not be refused on the ground that he is alleged not to be a credible witness, and that his cross-ex9,mination in open Court is desired (Nordhelmer v. McKillop, 20 C. L. J. 120 : 4 0. L. T. 198). 14.! :ii»!,ll n J:! vr'. J :;ui " (i 1 1 ; ; ;;: *l i.! j" ■ \ lt..:l ^\ f > 416 ONTARIO JUDICATURE ACT, 1881. Boles 286, 287. I I As to commission to examine de bene esse, aged persons and wit- ne'4ses about to leave thp Province, see Rev. Stat. c. 62, s. 21, ami Uule 285. In The M. Mo.cham, 1 P. D. 115, a commission to take evidence in Spain as to the law of Spain, was refused, as it was not sliowii that competent Spanish advocates could not attend the trial with- out difficulty, and in the opinion of the Judge it would, under the circumstances, l)e more satisfactory to have the witnesses examined in Court. See also Jiussell v. G. W. R. Co., 3 U. C. L. J. 116, and Atf}). Gen. v. Goodcrkam, 20 C L. J. 175, where the object was merely to obtain scientific or expert testimony. Where the application is to examine a witness who is travelling,', it should be shewn that he will remain at the place to which tiie commission is directed, a sufficient time to allow of its due execu- tion (SiiKjer V. Williams Manufacturing Co., 8 Pr. R. 483). A commission issues only jmrsuant to the order. Where there- fore an order provided for examination of one witness M. rim voce and others upon interrogatories, it was held that the connnis- sion could not issue to examine M only, wit'iout amending tliu order (Smith v. Bahcurk, 9 Pr. R. 175). An objection to a witness affirming instead of taking an oath, on a commission, ought to be taken at the time of his appearing before the commissioner (Jfickards v. Iloutjh, 30 W. R. 676; 51 L. J. Q. 11. 361). See Darlinii v. Darlimj, 8 Pr. R. 391, for irregularities which were held not to invali). It has been held in England that, affidavits in rejdy may bring forward additional evidence in support of tlie original case, and are not restricted by this Rule, to tlio points raised by the defendant's evidence {Pedcuck v. Harper, 7 <'h. D. 048 ; see also Aditlr v. YoutKjy \V. N. 1879, 8 ; Hoc v. Darh's, 2 I'h. D. 731). 'i 4. Where the evidence is taken by affidavit, any party desirin^^ to cross-examine a deponent who has made an affidavit filed on behalf of the opposite party, may serve upon the party by whom such affidavit has been filed, a notice in writing, requirin<( the produc- tion of the deponent for cross-examination before the Court at the trial, such notice to be served at any time before the expiration of 14 days next after the end of the time allowed for filing affidavits in reply, or within such time as in any case the Court or a Judge may specially appoint, and unless such depo- nent is produced accordingly, his affidavit shall not be used as evidence unless by the special leave of the Court. The party producing such deponent for cross- e.xamination shall not be entitled to demand the expenses thereof in the first instance from the party requiring such production. (R. Sup. C, 1875, Order 38, R. 4-) Taken from the English Rule. This Rule applies only to cross-examination of deponents before the Court at the trial (Re Knlucation, calling on the opposite party to shew cause at the ex- ''°^^ '"''^'^®- piration of four days, both days inclusive from the, service of the order, or so soon after as the case can be heard, why a new trial should not be directed. (R. Sup. C, March, 1879. R. 6.) The English Rule is to the same effect. This Rule has been amended by Rule 625, so as to read as above. I' ;-t'l- r ^ 424 ONTARIO JUDICATURE ACT, 1881. Boles I 308, 309. The motion referred to is not made upon a notice in the cases dealt with in the present Order, viz. : motions for a new trial afttr a trial l)y jury ; but the motion is in the first instance ex parte for an order mai, and when this has been obtained, the motion may b' placed in the paper for argument on application to the Registrar, aiter the order and affidavit of service have been filed pursuant to Rules 529 or 530. (Rules 310 a and 310 h infra.) A new trial must be moved for by order nisi, in a case in the Chy. Div. tried by a jury (Hcspeler v. leek, 4 C L. T. 41). Where a motion is not merely for a new trial, but to enter a differ- ent judgment (under Rule 510), or in the alternative for a new trial, a notice of motion would also seem to be necessary, as that is the mode of procedure under Rule 510 (Rule 316ft infra.) This notice, however, has not always been given, or insisted on by tne Court, where an onler nisi has been obtained in proper time. 300 [Rule SOD has been rescinded by Rules o^G & 527, and the following suhsHtuted.] 300(1 Time to move. [3a. In the Queen's Bench and Common Pleas Divi- sions. All applications under Rules 307 and 308, and under Rule 510 when made to a i3i visional Court, shall be made within the first four days of the Sittings of the Divisional Court for hearing such applications which may take place after the trial or judgment com- plained of. (Rule 527 ; Comp. R. Sup. C. Dec. 1876, R. 6 ; R. Sup. C, March 1879, R. 6 ; R. S. O. c. 50, ss. 284-286). For Rule 510, see infin Rule 31 60. fa) In case the decision of a question raised at the trial, or the judgment, is reserved, and is not given until the Sittings aforesaid, or in case of a trial during the Sittings of the Divisional Court, any motion or application respecting the same shall be made within six days after the day on which the verdict or judg- ment is given, if so many days expire in such Sittings, and if not, then within the first four days of the ensu- ing Sittings. (d) In cases tried by a jury judgment shall not be signed until the time for making such motion or ap- plication as aforesaid has expired, unless the Judge shall certify under his hand, that in his opinion execu- tion ought to issue in such action forthwith, or at some day to be named in such certificate, and subject or not to any condition or qualification]. MOTIONS FOR NEW TRIALS. This Rule is to the same eflFeet as the provisions of the ("ommon Law Procedure Act, Rev. Stat. o. oO ss. 28.") & 286, except that 10 days was under that Act, allowed instead of (5 for moving where a decision was reserved and judgment not given until the Sittings. Probably the Court has jurisdiction to enlarge the time limited by this Rule (see Rule 4G2, Funifll v. G. W. lf>/. Co. 1 Q. B. D. 636 and Pcchptt v. Short, 32 W. R. 123). As to the jurisdiction formerly under the Statute, R. S. (►. c. 50, s. 28-4, see Jt'ooiici/ v. liooncij, 4 Ont App. 255. 426 Bnles 309, 311. [Rnh' 410 has hen rescinded hi/ Rule lowinr/ Hides 529-531 suhstifuteef.] iG and the fol- 310 310 a {^/i. The party who obtains any order nisi, or ^vho^^,^,j,.^, ^^^^j serves any notice of motion may. on or after the liiinguf fourth day inclusive after the servin<,r'such order n/.s/ajipucant. or notice, file the same, toj^ether with an affidavit or admission of service with the Rei^istrar of the Divi- sional Court] (Rule 529). The notice of motion referred to in tliis Rule is the form of pro- cedure for an application under Rule 510 (IJule 316(( iiif'ra). Where a new trial only is nioveil for the procedure is by order nisi.. See note to Rule 308. 310 & [^.h. The party served with any such order msi or Filing by notice of motion may (if the same has not been already ',',!i}:ty''® filed by the party who obtained or served the same), on or after the fifth day, both days inclusive, after the granting of the order or service of the notice, file the same, together with an affidavit of the fact and time of such service with the said Registrar.] (Rule 530). See notes to Rules 318«, and 308. [4('. In case the party to whom such order ni'-'^i i"^ s^Aect o( crrauted shall neglect or delay to draw up and serve ■'ppiiwiut to ", , ^ . •' .'■,,. , (haw up and the same, the opposite party may, on or after the third st-ne. day after granting such order, and upon filing with the Registrar an affidavit that the order has not been serv- ed, enter a ne rccipiutitr with such Registrar, after which the Registrar shall not receive or enter such order ; and such order shall be deemed to be abandoned, and the opposite party may proceed as if no such order had been moved for or granted, unless the Divisional Court sha'l otherwise direct.] (Rule 531;. 311 5. A new trial shall not be granted on the ground lustrictiom of misdirection or of the improper admi.ssion or re- t"iau.* i^^ ! ;;.■ Hi', ■ 426 ONTARIO JUDICATURE ACT, 1881. Eule 311. jection of evidence, unless in the opinion of the Court to which the application is made some substantial wrong or miscarriage has been thereby occasioned in the trial of the action ; and if it appear to such Court that such wrong or miscarriage affects part only of the matter in controversy, the Court may give final judgment as to part thereof, and direct a new trial as to the other part only. (R. Sup. C, Order 39, R. 3 ; see R. S. O. c. 50, s. 289). Identical with the English Uule. The following are the grounds for granting a new trial ; — 1. Improper admission or rejection of evidence. 2. The improper non-suiting of the plaintiff. 3. Misdirection of ^he jury. 4. Perverse verdict or verdict against the weight of evidence. 5. Verdict for too small or too great damages. 6. Surprise, and discovery of new evidence (see Arch. 13th, cd, 1210). Formerly a misdirection by the Judge in point of law, or the im- proper admission or rejection of evidence in any material matter, .vas, at Law, ground for a new trial as of right. The Common Law Courts had only the power to grant a new trial of the action gene- rally (see Faund v. Wallace, 35 L. '1'. 361). This practice was altered by the Administration of Justice Act (see II. S. O. c. 50, s. 289), which contained a provision to the same effect as the present Kule. Quoire whether '* misdirection " in the Rule applies to the case of the Judge ruling that there is no evidence to go to the jury, and therefore withdrawing the case from them, and giving judgment for defendant (See Hall v. Jupe, 43 L. T. 411). A new trial may now be ordered on a particular question (see also Rule 312). As to what amounts to substantial wrong, see Pickup v. Thame-i Insurance Co., 3 Q. B. D. 594 ; Shapcott v. Chappell, W. N. 1883, 222 ; 53 L. J. Q. B. 77 ; 32 W. R. 183 ; Swift v. Nu7in, W.N. 1878, 217. Where a new trial is moved for on the ground of misdirection, the onus of showing that the misdirection did not cause a miscarriage of justice, lies upon the party showing cause {Anthony v. Halstead, 37 L. T. 433). It is the practice in England adopting the practice of the former Court of Queen's Bench not to grant a new trial, on the ground that the verdict is against the weight of evidence, when the damages are under £20, except under peculiar circumstances, such as the trial of a right, or where the personal character of a person may be injured {Joyce v. Metropolitan Board of Works, 44 L. T. 810 ; 17 0. L. J. 411 ; Booth v. Briscoe, 2 Q. B. D. 496 ; see also Jenklm v, Morris, 14 Ch. D. 674. If the damages found by the jury are so small as to show that they must have omitted to consider some of the elements of damage, the Court will grant a new trial {Phillips v. London d; S. W. R')i Co., 5 Q. B. D. 78 ; 5 C. P. D. 280). MOTIONS FOR NEW TRIALS. 427 The ordinary reasoning according to which the verdict of a jury Rules on a question of fact ought not to he disturbed unless the prepon- 311-313. (lerance of the evidence against the verdict is strong and clear, does not apply to cases in which the verdict depends upon a question of science which is not fully solved, but is still within the region of bona fide controversy. Tlie importance of the verdict to others besides the parties to the litigation, and the novelty of the question are elements to be taken into consideration. Where a new trial is granted on the ground of the unsatisfactory nature of the verdict, a condition should not be imposed that the party applying for the new trial should pay the costs of the ])revious trial (Managers of Mdropolitiin Astjlnm v. Hill, 47 L. T. 2!)). A new trial should not be granted merely because the Judge who tried the case, or the Court is dissatisfied with the verdict of the jury but the questi.iu is whether the verdict was such as reasonable men ought not to have come to {Solo)aon v. Bitton, 8 Q. B. D. 176 ; see Jenkins v. Morris, 14 Cli. D. p. 684). The Court may, in its discretion, refuse a new trial on the con- sent of the plaintitl' alone to the damages l)eing reduced to such an amount as the Court may think, if given by the jury would not have been excessive (Belt v. Lnwes, W. N. 1884, 74). See Canada Landed Credit Co. v. Thompson, in note to Rule 321, A new trial will not be granted on the ground of premature admis- sion of evidence which has afterwards become admissible (Faund v. Wallace, 35 L. T. 361), nor of the discovery of new evidence, unless it is nearly or quite conclusive (vlH(/e?vso» v. Titmas, 36 L. T. 711). The abstaining by a party from proof under an idea that his ad- versary had no real intention of putting liim to such proof, and Ijeing thereby taken ])y surprise, is no ground for a new trial (Andrews v. Stuart, 1 C. L. T. 724). » Where the reason for the application is surprise, the affidavits must state the grounds of surprise (Doio v. Dickenson, W. N. 1881, 52). As to when a new trial or supplemental trial may be had on the ground of discovery of new evidence, see note to Rule 271. S12 6. A new trial may be ordered on any question in New trial as an action, whatever be the grounds for the new trial, ^" p*"^*- without interfering with the finding or decision upon any other question. (R. Sup. C, 1875, Order 39, R. 4 ; see R. S. O. c. 50, s. 289.) Same as the English Rule. Qiicere, whether a new trial may not now be ordered as to one defendant without disturbing the verdict as to another (Piirnell v. G. W. Raihoay Co., and Harris, 1 Q. B. D. 636). Where there are distinct issues, the Judge may, under this Rule, accept the verdict of the jury on those issues on which they agree, and discharge them as to others, and a new trial may be ordered on the undecided issues (Marsh v, Isaacs, 45 L. J. C. P. 505). 313 7. An order to shew cause shall be a stay of pro- stay of ceedings in the action, unless the Court shall order ^'■°'^*®"*^"*'"'" : ^ I : , I I t M 428 ONTARIO JUDICATURE ACT, 1881. Rnles that it shall not be so as to the whole or any part of 313-315. the action. (R. Sup. C, 1875, Order 39, R.S.) Same as the Engli.sh Rule. The new Knglish Rules of 188.3 pro. vide otherwise (see Eng. Rule 55.S). In Ooddard v. ThompHon, 47 L. .J. Q. B. 382, it was held that this Rule did not apply where a Divisional Court refused a rule imi, but the Court of Api)eal granted one. It was also said that the Court of Appeal had no original jurisdiction to stay jjroceedings. Prohably this will not be so in Ontario. 8. On the argument of an order to shew cause, the 314 Counsel r^ueatlon ^ounsel of the party supporting the application shall to begin and begin, and shall state fully the grounds of the appli- have reply, ^.^^-jq^^ ^ud shall havc the reply. New. , ORDER XXXVI. MOTION FOR .JUDOMENT. 315 How judgnient obtained. I, Except where by the Act or by these Rules it is provided that judgment may be obtained in any other manner, the judgment of the Court shall be obtained by motion for judgment. (R. Sup. C, 1875, Order 40, R. I ; G. O. Chy., Nos. 270-272 ; R. Sup. C, 1875, Order 31, R. 21-23 ; Order 37, R. 4, 5). Identical with the English Rule. The motion must be made before a single Judge (see sec. 28 of the Act, and Dawnport v. Ward, 47 L. T. 348). Rules 72 (4 tit'i/. provide for the plaintiff's signing final judgment by default of appearance, and Rules 204 H net}, for like judgment upon default of pleading without any motion. Rule 78 provides for a judgment or onler on /inectpe in cases of foreclosure, sale, redemption, administration of an estate, or par- tition. Rules 274 and 275 provide for judgment on a trial, without a motion for judgment afterwanls. Rule 328 provides for a like judgment where, under the Act or these Rules, or otherwise, it is provided that judgment may be entered or signed upon the tiling of an attidavit or production of a document. Motions for judgment may be uecessarj' in other cases to say what the proper relief is in case of defentlant's default in appearing or pleailing (see Rule 211) ; or the -Judge at the trial of the action may not have ordered judgment to be entered (see Rule 273) ; or different issues or 'ai ty the Judge has directed that any judgment be entered, '^^''^^' any party may, without any leave reserved, apply to set aside such judgment and to enter any other judg- ment, on the ground that the judgment directed to be entered is wrong by reason of the Judge having caused the finding to be wrongly entered with refer- ence to the finding of the jury upon the question or questions submitted to them]. (Rule 510, ist. part). u\i^ All 430 ONTARIO JUDICATURE ACT, 1881. Bales 316 a. 317 a, 1st. 317 a Trial before a Judge. Identical with the English Rule, Sup. C. Dec. 1870, 11. part antl with the original Rule 316. According to the practice of the Common Law Courts, under R, S. O. c. 50 s. 283, every verdict was considered in all motions re- specting the same as if leave had been reserved at the trial to move in any manner respecting the verdict. The above Rule provides for the High Court a similar prac- tice in two instances. (1) An issue agreed upon or raised by the l^leadings may ])e general in its terms ; for example, partnersliip or no partnersliip at a given time ; when the case is fully gone into it may be found that the question of fact wliich the jury have really to determine is some smaller one ; as, for instance, tlie date of executing a deed ; having taken the opinion of the jury upon this last question, it may become the duty of the .Judge to construe the deed, and direct the finding upon the issue to be entered acuonl- ingly ; and upon this finding the result of the cause may depend. (2) Again, when all the issues have been found the Judge may direct judgment to be entered. In either of these cases, if the Judge is mistaken, his mistake may, under the Jibove llules, be corrected without leave reserved, and without a new trial. The present Rule docs not, however, apjdy wliere the objection is not to the conclusions of the Judge from ihe linding and his conse- quent entry of judgment upon it, but the objection is to tlio cor- rectness of the finding itself, for instance Avhere the Judge mis- directs tlie jury {ITninUton v. Johiwn, 5 Q. B. 1), 20.3, L'tiO), or non-suits theplaiutiti' [Ettij v. Wihon, 3 Kx. i). 359), or refuses todu so and a verdict is found for the plaintiff and judgment directeil to be entei-ed thereon (Dariea v. Felix, 4 Ex. L" 32), or where the Judge gives judgment for one party on the indings of tliu jury (lliiniilton V. Julnititun, 5 (I. B. D. 203), or wheie the facts being uu- disjjuted the Judge directs the jury to fiml for one party, and it is cfmtended the linding should have been the other way ( Yi-tt{< v. Foit his finding. * * A great ditfereuce exists between a Hudiug by the Judge and a finding l)y the jury. Where the jury liud the facts tlie Court cannot be substituted for them, because the parties luive agreed that the facts sliall be decided by a jury ; but where the Judye iiiids the facts, then the (Jourt of Appeal has the same jurisdiction tliat lie has, and can find the facts wluchever way they like, i luive no doubt, therefore, that is our jurisdiction, our power, and our duty." As to the principles upon which Courts act in reviewing the tind- inu's of a Court of first instance on the facts, see swpni, pp. 13-14. As to appt'als from the decision oi a Judge sitting as and for the Court but not at the trial, see notes to sees. '28, 13 and 37 of the Act. When there was a conflict of evidence and the Judge who tried the case attributed greater weight to the evidence of some witnesses than othei's, but in the opinion of the Court of Appeal took a wrong view of the law, the Court refused to make a decree ujjou the evi- dence, and sent the case for a new trial (Canada Landed Credit Co. V. Thompxon, 3 C. L. T. I08). Where a Judge has directed judgment to be entered on an inter- pleader issue, £in appeal lies under this Rule ( Witt v. Parker, 25 W, R. 518 ; see Wilson v. Kerr, IS U. C. Q. B. 470 ; Dodds v. Shepherd, 1 Ex. D. 75 ; 45 L. J. Ex. 457 ; Withers v. Parker, 28 L. J. Ex. 383). Where there is a general judgment against several defendants, the last clause of this Rule does not enable them to sever and appeal to several Courts ; but they must all appeal to the tribunal to which the defendant who takes the first step has appealed (per Armour, J., in Hateleij v. Merchants Despatch, 20 C. L. J. 105). 482 ONTARIO JUDICATUKE ACT, 1881. Bales 3176, 317 c, 317 6 I 'i hi: Where a motion for a new trial was made conditionally upon the result of a (Rule 510) is limited by Rule 309a (Rule 527). For the mode of procedure to bring on the motion for argument, and in case of default, by the party giving the notice, in prosecutincr the same, see Rule 310a (529) and 310/> (530). MoUoiI'to [3^'- A^^ appeal:;, proceedings, and matters to be reversujiuig- brought before the Divisional Court of the Chancery Chancery Division are to be entered with the Clerk of Records and Writs, at least seven days before the day fixed for the Sittings of the Court, and seven days notice thereof is to be served upon the parties entitled to notice]. (Rule 522.) This Rule is in accordance with the former practice on Rehearing (see Chy. G. O. 418). The seven days befoi'e which the case is to be entered are clear days (Ramohr v. Marx, 18 C. L. J. 444 ; 19 C. L. J. 10 ; 3 0. L. T. 31), and the seven days notice required were, by the former Chancery practice, under "yj *"**"' manner [and there is no direction of a Court or Judge for the entry of judgment], the plaintiff may set down the action on motion for judgment as soon as such issues or questions have been determined. If he does not so set it down, and give notice thereof to the other parties, when ten days after his right so to do has arisen, then after the expiration of such ten days any defendant may set down the action on motion for judgment, and give notice thereof to the other parties. (Comp. R. Sup. C, 1875, Order 40, R. 7-) The words in brackets are not in the English Rule, which is other- wise the same. The introduction of these words appear to make no difference in the construction of the above Rule ; they are implied, though not expressed in the English Rule. This Rule has been held to apply where a reference had been % ordered to the Master to inquire whether a partition alleged in the pleadings was binding upon the parties thereto. The Master found in the affirmative. A motion for judgment under this Rule was held proper, and that the judgment directed to be entered according to the report (Consolidated Bank v. Wallbridij)', 18 C. L. J. 205). 5. Where issues have been ordered to be tried, or ^fte^ trial issues or questions of fact to be determined, in any of some J I r u • \- -V only of the manner, and some only or such issues or questions of issues of fact have been tried or determined, any party who^*"*' considers that the result of such trial or determination renders the trial or determination of the others of them unnecessary, or renders it desirable that the trial or determination thereof should be postponed, may apply to the Court or a Judge for leave to set down the action on motion for judgment, without waiting for such trial or determination. And the 28 f ; If jj in WKL < \ \\ it I ' t Sil, _i 434 Rnles 319-321. 320 No motion after one year. 321 PoBtpoue- ment of motion by Court. ONTARIO JUDICATURK ACT, 1881. Court or Judge may, if satisfied of the expediency thereof, give such leave, upon such terms, if any, as shall appear just, and may give any directions which may appear desirable, as to postponing the trial of the other questions of fact. (R. Sup. C, 1875, Order 40, R. 8). Identical with the English Rule Where an order was taken, by the consent of the parties, to de- termine certain issues of fact in a manner which the Judge after- wards held to be beyond the powers of the Court, Jessel, M. R., refused to proceed with the trial, on the ground that any decision founded upon this consent order, would not be l)inding ujjou tlie parties [Republic of Bolivia v. National Bol. Nav. Co., '24 W. R. 301). 6. No action shall, except by leave of the Court or a Judge, be set down on motion for judgment after the expiration of one year from the time when the party seeking to set down the same first became en- titled so to do. (R. Sup. C, 1875, Order 40, R. 9.) Identical with the English Rule. 7. Upon a motion for judgment, or for a new trial, the Court may, if satisfied that it has before it all the materials necessary for finally determining the ques- tions in dispute, or any of them, or for awarding any relief sought, give judgment accordingl}'^ ; or may, if it shall be of opinion that it has not suf^cient materi- als before it to enable it to give judgment, direct the motion to stand over for further consideration, and direct such issues or questions to be tried or deter- mined, and such accounts and inquiries to be taken and made as it may think fit. (R. Sup. C, 1875, Order 40, R. 10). Itlentical with the English Rule. The motion for judgment referred to must mean not the ordinary motion, to the Judge who tried the cause, for judgment after the findings upon the facts, but such a motion as is contemplated by Rule 316a, where a judgment has already been directed to be enter- ed, and a Divisional Court is moved for a new trial or to enter another judgment. Where the case is one proper for the decision of a jury the powers conferred on the Court by this Rule may not aflfect the deci- sion in Moore v. Connecticvt Mutual, 6 App. Ca. 644, that a Court has power to enter a verdict in accordance with what they deem to be the true construction of the findings coupled with other facts, either admitted, or so clearly proved that there could be no contro- versy about them, but has no power to enter a verdict in direct MOTION FOR JUDGMENT. (iiiposition to the finding of the jury upon a material issue (sec iKrkiiiM V, DaiKferJidd, VV. N. 187!>, 17- ; Jotwa v. HoikjU, /» 435 Bnles 321, 322. also uferjicia, VV. N. 187!), 17"-' ; Jones v. //o/u/A, A Ex. I). 12'2 ; and MUlissich v. Lloi/ 1 1 1 1, ■Hi! 436 ONTAKiO JlimoATlfRE ACT, iMHl. Bale 322. ti'on or identity without the necessity of any cross- examination ; or he may so apply where infants are concerned and evidence is necessary, so far only as they are concerned, for the purpose of proving facts which are not disputed.] (<) The fore^^oinj; Rules of this Order shall not apply to such applica- tions, and any such application may be made by motion as soon as the rij^ht of the party applying to the relief claimed has appeared from the pleadings. The Court or a Judge may, on any such application, give such relief, subject to such terms, if any, as such Court or Judge may think fit. (Comp. R. Sup. C, 1875, Order 40. R. 11; G. O. Chy., No. 270 ) (a) The words here in brackets are not in the Knglisli Rule. (b) Instead of the words in brackets here, tlie English Order lia.s the words "without waiting." (c) Where one defendant does not appear, or does not deliver a defence, and anotlier delivers a defence on whicli the plaintiti's right to relief is adnutted, the plaint! t! may proceed against tlie latter under this Hide, ami against the former by default. ( A'c. Smith'/i ExttUv, Br'uhon v. Smith, '24 VV. 11. [Y.i'I ; I'^ir^oHnv. Hanis, 6 (Jh. D. G!)4). See also Jenkins v. JJaries, 1 ( !h. 1). 690, where a statement of defence, purjwrting to be the defence of a husband and wife, raised no defence as regarded the husband, and the plaintiff was held entitled under the English rules of pleading (thougli it would be otherwise here under Rule 148) to judgment against tlie husband as admitting the plaintiff's claim, without waiting for tlie determination of the case against the wife. ((/) The words here in J>rackets are not in the Englisli Order, and are taken from Chy. (i. O. No. 270. (e) What follows is identical with the latter part of the English Rule. See the somewhat similar practice, which is virtually super- seded by this Rule, by which a defendant's plea might be struck out in Chambers upon his admission that it was untrue, supra j). 216. The object of this Rule is to ena})le a plaintiff or defendant to get rid of so much of the action as there is no controversy respecting. If the whole issue is not in controversy, either party may be entitled to move on the admissions of the other ( Thorp v. Hvldsworth, 3 Ch. D. at p. 640). The Rule is applicable at any stage of the action, and therefore it was held that the plaintiff was entitled to juigment onan admission under this Rule, though he had delivered a reply, and the action was set down for trial (Broion v. Pearmn, "21 Ch. D. 716) ; and the Rule may be acted on at the trial ( Tildcsley v Harpi'v, 7 Ch. D. 403). It is in the discretion of the Judge whether to give relief on the motion ; and the Court of Appeal will not review his discretion {Mellor V. Sideholtom, 5 Ch. D. 342). A defendant may move upon an admission entitling him to the "relief" of having the action dismissed {Pascoe v. Bichards, 50 L. J. Chy. 337 ; 44 L. T. 87). 4 MOTION FOK .JUDGMENT. 437 u' ! In the exorcine of such tliscretioti, partifH .ire, as a matter of conveiiionoe, not allowed in Kuj^land to m.ake uudor thin Uule appli- cations which involve a serious question of law to be arguetl that might l)ettfr he decided on ileniurrer or at the trial {pfr Melliah, L. J., in (fithrrfv. Smith, '-J Ch. 1). «)8'.> ; Mdlor v. ShMoHom, 5 Ch. I), at p. .144). These cases, however, do not fully apply in Ontario. The pro- visions of this Hnle wiiioh are not contained in the Kng'Nh Rule, are taken from and seem to supersede tli" former Chancery practice regulating hearings mi motion for decree (see (i. (). 27<>), and on Mil and answer. On a motion for deoree the examination of a (let'endant might be read with his answer against him ( Prortor v. Grniit, !MJr. .SI ; MtUlirr-s v . Short, 14 Or. '2."); see also Pmrfll y. Led, 'M (rr. ()"2I). .\ttidavita proving exhii>its might formerly be read on motion for decree unilcr O. (>. 270, or on a hearing on bill and answer. (.See Kil/nl:/ v. (I'nihnin, 2 (ir. '2H1 ; Chalk v. liaine., 13 .lur. 981) Both thovj methods of hearing a case were formerly employed in cases involving the C(tnsideration of important (juestions of law. Suits for tlie constructimi of wills are familiar examples, (see for instance Fuller v. MurkU'iii, 2') (Jr. 4n."), /'ohnou v. Arifxi', 2.t Or. 407, Piitton V. Hh'k.inn. 'In (ir. 102, (Harlcmn v. Scott, 2.') Or. '.MW.) In such c;ises this Rule is no d\ 1 Ch. D. 643); and an order for a dis.solution of a partnership ( Thorp v. Holdsworth, 3 Ch. D. 637). (See also Benwtt V. Moore, 1 Ch. D. 692 ; Martin v. Gale, 4 Ch. 1). 428). Probably also the common application for i)ayment into Court by an accounting party of a sum admitted to be in his hands may now, at any rate before judgment, be made in Chambers under this Rule, though formerly made in Court (Re Curry, 8 Pr. R. 340.) as to what is a sufficient admission for this purpose, see Re Curry .'iupra ; Re Bahcock, 8 Gr. 409 ; Collim v. Orme, 3 Chy. Ch. 70 ; London Syndicate v. Lo7-d, 8 Ch D. 84; Freeman v. Cox, ih. 148; Sytnonds r. Jenkins, .34 L. T. 277. MOTION FOR JUDGMENT. Where a solicitor put in a fraudulent defence for hia client with- out the knowledge of the client, making admissions on which judg- ment was obtained against the client, the judgment was set aside and the client allowed to withdraw tlie defence and put in a fresh one ( Williams v. Preston, 20 Ch. D. 672). It seems that in England as a matter of form further directions cannot be reserved ; but the same object is accomplished by declaring that the further consideration of the action is adjourned {Bennett v. Moore, 1 Ch. I>. 692 ; Gilhert v. Smith, 2 Ch. D. 686 ; Brassington V. Ciissons, 24 W. R., 881). No difficulty of that kind would seem to arise here, at any rate where the motion is made in Court. 439 Bales 322-324. ; 1 323 9. Where it is made to appear to the Court or a pt-nding ap- Judge, on the hearing of any application which may ['/,'^j^,!,'j''|^,,t„ be pending before the Court or Judge, that it will be ii";''"" for ^^ 1 iif 1i?imptil or conducive to the end.s of justice to permit it, the Court hciring of or Judge may direct the application to be turned into '"""'*'■ a motion for judgment, or a hearing of the cause or matter ; and thereupon the (^ourt or Judge may make such order as to the time and manner of giving the evidence in the cause or matter, and with respect to the further prosecution thereof, as the circumstances of the case may require ; and upon the hearing it shall b^^ discretionary with the Court or Judge to either pronounce a judgment or make such order as the Court or Judge deems expedient. (G. O. Chy., No. 614.) Same in effect as the Chancery Order referred to. There is no corresponding English Rule. See this Rule applied in B;;yne v. Box, 2 C. L. T. 47. 324 10. Where at any time after the writ of summons .^(^^^j^^^f^jj. has been issued it is made to appear to the Court or a .i>'^i«'n«-ntby Judge on an ex 'trie application that it will be con- service of ducive to the ends of justice to permit a notice of ^^'"' motion for a judgment to be forthwith served, the Court or Judge may order the same accordingly ; and when such permission is granted, the Court or Judge is to give directions, as to the service or the notice of motion and filing of the affidavits, as may be expe- dient. G. O. Chy. Xo. 271 is to the same effect. There is no correspond- ing English Rule. The Master or a Judge in Chambers may grant leave under this clause to make the motion, but under the next clause the motion itself must be made in Court (Morrison v. Taylor, 46 U. C. Q. B. 492). (The report of Lucas v. Eraser, 9 Pr. R. 319, is erroneous. The motion was before Osier, J. , in Court. ) . ij ** fi 1 1. i h ^ f I (.1 li- 'U \ \ 440 ONTARIO JUDICATURE ACT, 1881. Enle 324. Rule 324- (a) was rescinded, and Rule 544 substituted therefor, as follows : — (a) Upon the hearing of such motion the Court may grant (x) the application [on such terms and conditions as may be thought proper, or may refuse the same], or instead of either granting or refusing the same, may give such directions for the examina- tion of either parties or witnesses, or for the making of further inquiries, or with respect to the further prosecution of the suit, as the circumstances of the case may require, and upon such terms as to costs as the Court thinks right. (Rule 544) {Sec G. O. Chy., Nos. 271, 272.) The Chancery Order No. 272 is to the same effect. At (3;) the original Rule had the words "or refuse;" and the words in brackets are inserted by Rule 544. The amended Rule is in otlier respects the same as the original Rule. Where the plaintiff applied under the original Rule before the time for appearance, and the defendant had acted fraudulentlj- in disposing of some property, and in qtherwise embarrassing his creditors, Hcfd, a proper case as against the defendant for the exercise of the discretion of the Court. But this Rule cannot be used to give an undue advantage against other creditors. Therefore, where other bona fide creditors were suing, but could not in ordinary course get execution till after tlie plaintiff, though they had commenced before him, an order was made on terms that the plaintiff should share pasi passu with other judgmeut creditors who should place executions in the Sheriff's hands within eighteen days from the service of the plaintiff's writ, in case of an insufficiency of assets (Kinloch v. Morton, 9 Pr. R. 38 ; 1 C. L. T. 660). After tliis decision some of the Judges expressed doubts as to the power to impose such conditions under the terms of the original Rule, and accordingly Rule 544 was passed to make the power clear. In consequence of these doubts, liose, J., in Lyon v. Wilson (un- reported but decided before the passing of the new Rule), granted an order without imposing conditions, and announced that the Judges, or some of them, had agreed thereafter to make orders with- out such conditions, but would scrutinize very closely the material furnished upon such motions, and would not grant judgments except in extreme cases (see 20 C. L. J. 77). Probably since the amended Rule the former usual conditions will be again imposed. There is no power to amend an order granted, without conceal- ment or fraud, and not containing such a condition [Harrison v. Leach, 20 C. L. J. 124 ; 4 C. L. T. 185). Special circumstances necessitating a hearing out of the ordinary course must be shewn (Francis v. Francis, 9 Pr. R. 209). Some- thing beyond the plaintiff's desire to get a speedy judgment is necessary (Kinloch v. Morton, 9 Pr. R. 38 ; Lucas v. Fraser, 9 Pr. R. 319). Where the affidavits tiled for and against the motion were conflict- ing, the action was ordered to be entered for trial (Francis v. Francis 9 Pr. R. 209). ENTRY OF JUDGMENT. ORDER XXXVII. ENTRY OF JUDGMENT. 441 Rules 325-328. 325 1. Every judgment shall be entered by the proper judgment^ officer in the book to be kept for the purpose. The^°^^^«"- forms in Appendix (I) hereto may be used for enter- ing judgments, with such variations as circumstances may require. (Comp. R. Sup. C, 1875, Order 41, R. I ; see R. S. O. c. 50, s. 302). This Rule is identical with the tirst and third sentences of the English Rule. The intermediate part of the English Rule provides for a copy of the pleadings being delivered to the officer by the party entering the judgment ; the English practice being that pleadings are not filed in the first instance, but simply delivered between the parties. The practice in this Province has been to file them ; and this is still the practice here under the new system (Rule 150). 32G 2. Where any judgment is pronounced by the Court Date of or a Judge in Court, the entry of the judgment shall ^^^^'^j^lJ^®" be dated as of the day on which such judgment is pronounced pronounced and the judgment shall take effect from that date. (R. Sup. C., 1S75, Order 41, R. 2). Identical with the English Rule. See Rule 351, and Winkley v. Winkktj, 44 L. T. 572. 327 3. In all cases not within the last preceding Rule, Date of the entry of judgment shall be dated as of the day ^'^'*^y '^^^^gg^ on which the requisite documents are left with the proper officer for the purpose of such entry, and the judgment shall take effect from that date. (R. Sup. C, 1875, Order 41, R. 3). Identical with the English Rule. Orders in (Jhambers should be dated on the day on which they are finally made (Aahlcy v. Tai/lor, 27 VV. K. 228). In Lyoti V. Tweddell, 44 L. T. 785 ; 50 L. J. Chy. 571 ; 17 C. L. J. 3G7, it was held that where dissolution of a partnership was asked it should be decreed from the judgment, not from the issue of the writ. QOQ 4. Where, under the Act or these Rules, or other- j,,^, ^^ wise, it is provided that any judgment may be entered affidavit, etc or signed upon the filing of any affidavit or produc- tion of any document, the officer shall examine the affidavit or document produced, and if the same be regular and contain all that is by law required, he PiH ' '■ ' 1.'' ■I I'ril "- : If ■ ■'! ill; f f fU iM 442 ONTARIO JUDICATURE ACT, 1881. Rniea shall enter judgment accordingly. (R. Sup. C, 1875 329-33\ Order 41, R. 4). Identical with the English Rule. 329 Entry on order or •certiflcate. 330 Non-suit. 5. Where by the Act or these Rules, or otherwise, any judgment may be entered pursuant to any order or certificate, or return to any writ, the production of such order or certificate, sealed with the seal of the Court, or of such return, shall be a sufficient authority to the officer to enter judgment accordingly. (R. Sup. C, 1875, Order 41, R. 5). Identical with the English Rule. 6. Any judgment of non-suit, unless the Court or a Judge otherwise directs, shall nave the same effect as a judgment upon the merits for the defendant (a), but in any case of mistake, surprise, accident, (b) [or otherwise], any judgment of non-suit may be set aside on such terms, as to payment of costs and and other- wise, as to the Court or a Judge shall seem just. (R. Sup. C, 1875, Order 41, R. 6; G. O. Chy., No. i84.) (a) Up to this point the Rule corresponds with the English Rule, and makes a material change in the previous practice at Law. Formerly, a judgment of non-suit left a plaintiff at law free to com- mence another action for the same cause. There was no such practice in Chancery. (h) The English Rule has not the words " or otherwise ;" this is the only difference l)etween the above Rule and the corresponding part of the English Rules. The effect of this diflference is, perhaps to give a somewhat greater discretion to the Court here than in England, as to setting aside a judgment of non-suit. 'I'here can now be no such thing as tlie former " judgment of non- suit" unless perhaps under Rule 2G8 (Poyser v. Minors, 7 Q. B. D. 329). As a non-suit is therefore now the same as a judgment on the merits, it may be pleaded in bar of a fresh action for the same cause (Bijwuter v. Dunne., 10 L. R. Ir. 380) ; and if the non-suit be reversed on appeal the defendant is not to have as of right a new trial for the purpose of adducing evidence on his behalf (i\/atv/o)ia/rf v, Worthimjton, 7 Out. Ai^p. 531, 563). This provision is not applicable to Division Courts under sec. 77 of the Jud. Act, or sec. 244 ot the Division Court Act R. 8. C). c. 47 (Buildinij and Loan Ai^s. v. Heimroil, 3 C. L. T. 3G1 ; Ba)ik of Ottawa v. McLoughlin, 19 C. L. J. 294). 331 •General 7- Where a sale is ordered, the Master may cause where a sale ^^^ property, or a competent part thereof, to be sold is ordered, either by public auction, private contract, or tender, or part by one mode and part by another, as he may SALES. ms think best for the interest of all parties, and he may ^^^ 331. fix an upset price or reserved bidding, but such price or bidding must be so fixed at the meeting held by him for the purpose of settling the advertisement, and making the other arrangements preparatory to the sale, and must be notified in the conditions of sale. The Master is to settle all necessary conveyances for the purpose of carrying out the sale in case the parties differ, or in case there shall be any persons under any disability (other than coverture) interested in such sale. There is no corresponding English Rule. The Chancery Orders bearing on the subject of the present Rule will probably govern the practice in all the Divisions (see sections 12 and 52 of the Act ; Ncwh'miiin-hii-thc-Sea Gan Co. v. Arm.-itroni/, 13 Ch. J). 310 ; Le GraiKje v. Mc Andrew, 4 Q. B. D. 210 ; and' Rule 4). As to settling of conveyances see also (^hy. G. 0. 226. The f'hancerj' orders governing the practice in the Master's Office generally are 211-257 and 584-587. Those more particularly on the subject of sales (374-397) are here printed. (See below). "219. To enable the Master to exercise all or any of the powers conferred upon him by, or lo take the accounts and make the in- quiries referred to, in the following Orders, it shall not be necessary that any of the matters therein mentioned, shall have been stated in the pleadings, or that evidence thereof shall have been given before the order of reference, or that the order should contain any specific direction in respect thereof." "220. ' Under an order of reference, the Master shall have power : 1. To take the accounts with rests or otherwise : 2. To take accounts of rents and profits received, or which, but for wilful neglect or default, might have been received ; 3. To set occupation rent ; 4. To take into account necessary repairs, and lasting improve- ments, and costs and other expenses properly incurred otherwise, or claimed to be so ; 5. To make all just allowances ; G. To report special circumstances ; 7. And generally, in taking the accounts, to impiire, adjudge and report as to all matters relating thereto, as fully as if the same had been specially referred." Where a judgment has been obtained on a mortgage by which a reference to the Master to take the mortgage account is ordered, the Master has no jurisdiction to question the validity of the mortgage or the judgment founded thereon (McDongallv. Lindsay Paper Mill Co., 20 C. L.J. 133 ; Wiley v. Ledyard, ih. 142) ; nor can any defence be raised which if allowed might result in determining that the Court had made a nugatory order of reference ( Wiley v. Ledyard, Hup. ) . Subsequent incumbrancers who do not wish to be bound by 1 r ■ ! 1 ?luin- tiffin redemption suit is fdrtiriosed. 335 Procedure where order is for re- demption, &c. 336 Assignment of iiroperty and delivery of docu- ments. 337 Application ot Rules 7-12. tiff, or to an order dismissing the bill with ccsts to be paid, by the plaintiff to the defendant, forthwith after taxation thereof. There is no corresponding Englisli Rule. 10. In a redemption suit where the plaintiff is de- clared foreclosed, directions may be given, either by the final order foreclosing the plaintiff, or by subse- quent orders, that all necessary inquiries be made, accounts taken, and proceedings had for redemption or foreclosure, or redemption or sale, as against any sub- sequent incumbrancers, or for the adjustment of the relative rights and liabilities of the original defend- ants as among themselves, and such order shall have the same force and effect as a judgment obtained at the suit of the original defendant. There is no corresponding English Rule. See Chy. G. 0. 4(j0. 11. Where the order is for redemption or fore- closure, or redemption o'; sale, such proceedings are in such case to be thereupon had, and with the same effect as in a suit of foreclosure or sale, and in such case the last incumbrancer is to be treated as the owner of the equity of redemption. There is no corresponding English Rule. 12. In a suit for foreclosure or sale upon payment by the defendant, or in a suit for redemption upon payment by the plaintiff, or payment of the amount found due, the plaintiff or defendant shall, unless the decree otherwise directs, assign and convey the mort- gaged premises in question to thedcfendant,(orplaintiff, as the case may be) making the payment, or to whom he may appoint, free and clear of all incumbrances done by him, and deliver up all deeds and writings in his custody or power relating thereto, upon oath, and in case of a corporation the affidavit shall be made by the officer thereof having the custody of such deeds and writings. There is no corresponding English Rule. 13. The foregoing Rules, 7-12, are to apply to all cases of reference to the Master in suits for foreclosure, sale or redemption. (See G. 0. Chy. No. 397.) There is no corresponding English Rule. !!:■; MISTAKES IS JUDGMENTS. 44*J 14. Clerical mistakes in judj^ments or orders, or RuJe 338. errors arising therein from any accidental slip or 888 omission, may at any time be corrected by the Court J^f'[,",;,',|;^"g or a Judge on motion without an appeal. (R. Sup. '" l'"'-'- , C., Dec., 1879, R. 5.) orders. Identical with tho English Rule, and suliatantially the aame aa English Chy. Order 23, llulc 21, aa to which sec Morgan (Jhy. Acts and Orders, 4th ed., 49.3. Seton, ]r)47-8. This llule is based upon and supersedes the last part, at any rate, of Chy. (xen. Order 3M5, whicii is as follows : " .S35. An application to ameml an order which has not been drawn up in conformity with the judgment pronounced f o as to make the same conformable thereto ; and an application to correct any other clerical mistake in an order, or an error arising from an accidental slip or omi.ssion, may be made iji ( !hambers on petition, and tlie (Jourt may grant the same if under all the circumstances the Court sees tit." I'nder that Order a direction necessarily consequent upon the judgment, but omitted from the decree drawn u]niiighL be supplied, such as a direction (now unnecessary, see I'ule 331), to settle a conveyance (Moffatl v. lli/de, (5 U. C. L. J. 94; Trcvelyan v. Chdrfer, 9 Beav. 140) ; or a reference as tf) title in a decree for specific performance ( flinjhfft v. Joni'M, 2(5 Heav. 24), or other mistake or slip (TuDwr v. IIoibjHon, 9 Heav. 2().'> ; Ai^ketu v. Pctldle, 14 Sim. .301 ; and see Eddie v. McEwen, 14 (ir. 404 ; see also ex jmrte Struv/ht, 10 W. 11. G«5I ; Andrewn v. livhannoiu W. N. 1869, 80 ; Jiferij.'i V. Sinllh, 11 \V. II. 479 ; lie G/aunile'fi Trudn, W. N. 1S78, '21); but not any term which could only have been introduced by express direction of the Court, which was not given (Bird v. Heath, G Ha. 230 ; Whitehead v. North, Cr. & Fh. 78). The application must, as a general rule, be on notice (liadenhxirst V. Re;inobU, 11 (ir. 521). A motion to amend a decree in which the pleadings and evidence, or anything lieyond thn judgment pronounced, and tlie decree, i.s re- quired to be looked at, must be made in CVmrt ( Lapp v. Lap]), 3 \ Chy. f'h. 234 ; 4 Chy. Ch. 3). As to how far the judgment maybe varied, see Hendrie v. Beattie, 2 C. L. T. 102. In Liriiii/stoiie v. Wood, 29 Cr. 157, a decree directing an account was amended by striking out a declaration that the plaintiff was entitled to certain credits which had not formed a substantive part of the jiidgment, so as to make the decree conform to the actual judgment, and enable the credits to be further investigated in the Master's office, A consent, judgment or order may be amended by striking out terms not consented to (Merchant's Bank v. Grant, 3 Chy. Ch. 64). Where an order had been made on the petition of several persons, two of whom had not authorized it, the Court, under this Rule, amended the order by striking out the names of these two as peti- tioners and treating them as not having been served with the petition (/iV Sarar/e, 15 Ch. D. 557). The costs of a motion for an interim injunction having been adjourned to the trial of the action, tho plaintifl:'s counsel omitted to ask for them at the trial, and they were not provided for : — Held that the omission might be supplied uudur this Rule (Fritz v. Hub-ion, 14 Ch. D. 542). 29 ! 1 i J (Si I I ' 1 ■ '■> ■ H ' 450 Rales 338, 339. ONTARIO JUDICATUKE ACT, 1881. On motion under the corrosponding Fhiglish lUilo, an order niiulu under the Settled Kstates' Aet wiia varied soaa to dispense witli cdn. sents of tenants for life to leasing powers granted (He liiky's TrusU 30 W. R. 78). In Ldii'f'if V. /,efs, 7 App. Ca., at p. .'14, Fiord Penzanuo said : " J cannot doubt that under tlie orii,'inal powers of the (^)urt, (|uitt' independent of any order tliat is made under the Judieature Act, every (Jourt has the power to vary its own orders wliieli are drawn up niechanieally in the registry, or i'l the ofBco of tlie Court, to vary them in such a way as to carry out its own meaning, and wliere language has been used wliich is doubtful to make it plain. " Lil)erty to apply is implied, without being expressly reserved {Fritz V. Hnhxon, 14 (Jh. 1>. 'A'l, 5(51), but oidy in orders not tiual (Pcnrici' V. WUfiiinifi, 2S Ch. 1). 3");^). It is not implied in favor of a defendant against whom the action has been dismissed, except for the purpose of enforcing the order {Hunttcy v. LinL; '26 Sol. Journ. 51)). After a judgment by consent has been passed and entered, it can- not be afterwards amended, except for reasons suHicient to set aside tin agreement on the ground of mistake (Atti/.-Ofn. v, Tumline, 7 Ch. 1). 388). An interlocutory order consented to by mistake maybe ilischargud, though the mistake was on one side only (MidliiLH v. Howell, 11 Cli, D. 703). Where an order has been made by consent, the consent given without mistake is biiuling, and can not be withdrawn (Ilanni v. Croi/don, W. N. 1884, 41 ; 3--' \V. 11. 389 ; overruling S. C. W! N. 1883, '2'22 ; Hull v. Jriisfl, 3 Ch. D. 177, and Jiot/ers v. Horn, 20 W. R. 232, in which, as reported, it was held that the consent might be withdrawn before the order was passed and entered (see WUliaiiii V. MeahhiH, Crump & 10 vans Chy. Pr, 502). A Judge can always reconsider his decision until the judgment or order is drawn up (lie St. Nazairt Co., 12 Ch. D. p. 91 ; Milkr'i case, .S Ch. D. 061 ; Attij.-Geu., v. Tumline, supra.) 339 Enforcing judginciit for re'ovi of money. ORDER XXXVIII. EXECUTION. I. A judgment for the recovery by or payment to any person of money may be enforced by any of the "^^ modes by which a judgment or decree, for the pay- ment of money, l>( auy [of the Superior Courts,] might have been enfc»cea at the time of the passing of the said Act. (Comp. R. Sup. C, 1875, Order 42, R. i.) Instead of the words in brackets, the English Rule has the words, ** Court whose jurisdiction has been transferred by the same Act." The lUiles are otherwise the same. The efifect of this Rule is to perserve the right to issue any pro- cess of execution which might formerly be adopted to enforce HjL RXKrUTION. 461 payment of money innler a jud^nient or decree and to niivko the jnig 339, saint: available in all Divisions of the High Court (see Loiiilon itc., V. .\[i'rrill, -Al ( ;. P. .'WO). The principal of these were : 1. Writs of Jieri fiirinH and (in aid thereof) I'fiitlUioni crpuHan {m to which see also llules 'MV2 ami 3().S), and ilistriuiidn. '2. Writs of seijuestration (in (!haneery). In aid of exooution proeoiluro was also available by, {) Kquitable exeeuti'in. Writs uf fieri J'acian. It. S. (). c. 66, a. 7-, provides the mode of enforcing a decree, mil', or ortler for the payment of money, as follows : "7-. Kor the purpose of enforcing payment of any money or of Riv. Htut. c any costs, charges or expenses payable by any decree or ordor of the "J''- >*■ "2. Ccinrt of (Jhancery, or any rule (»r order of the (Courts of (Queen's Bi'Mo'. or CJommon I'lcas, ov any rule or order of a County Court, tlu' person to receive payment sliall be entitled to writs of /?»'/•( /'"'i"" Writs of fi. and ivwHtioni rr/yotKLt respectively, against the property of the per-/"- Miiiven. Sdu to pay, and shall also l>e entitled to attach and enforce payment '■'^* ot tlic del)ts of or accruing to the perscni to pay, in the same man- uer respectively, and sul)ject to the same rules as nearly as may be, as in the case of a judgment at law in a civil action. "(•J) Such writs shall have the like effect as nearly as may be, and the (Courts and Judges shall have the same powers and duties in respect to the same and in respect to the proceedings under the same, and the parties ami Sheriff respectively shall have the same rigiits and remedies in respect thereof, ami the writs shall be ex- ecuted in the same manner and subject to the same conditions, as nearly as may be, as in the case of like writs in other cases ; but suhjcct to such (Jcneral Rules and Orders varying or otiierwiae affecting the practice in regard to the saiil matters, as the Courts respectively may from time to time make under their authority in that behalf. " (3) In ease a decree or order in Chancery directs the payment of money into Court, or to the credit of any cause, or otherwise tlian to any person, the persou having the carriage of the decree or order, so far as relates to such payment, shall be deemed the person to receive payment within the meaning of the two preceding sub- sections." '% Writs of Se- questration. Sequestration to enforce payment of mnneij, R. S. 0., c. 66, s. 73, makes the following provftion as to writs of sequestration : " 73. The Court of Chancery may also issue writs of sei^uestra- R«v. Siui, c. tiou as hitlierto, or in such cases as by Oeneral or other Orders the ''^' ''• ''^* Court may think expedient ; and nothing in this Act or in The Act re^pi'Ctin (J Arrest and finprisonnient for Debt, shall be construed to take away the jurisdiction of the Court, under or by means of such writs." The following are the Chancery Orders on same subject : "291. If a party who is ordered to pay money, neglects to obey Ch. Onl. 291. the order according to the exigency thereof, the party prosecuting the order, may, at the expiration of the time limited for the per- ill \' ; i > [HV: ■■ Ml '7Tt£i M i Ajla 452 ONTARIO JUDICATURE ACT, 1881. .Scciucstr.i tioii. ■I, I Rule 33J formance thereof, apply in Chambers for a writ of sequestration against the defaulting party, and upon proof of due service of a notice of the motion, unless the Court thinks proper to dispense with such service, and upon proof by afhdavit of such other matters, if any, as tlie Court requires, the Court may order a writ of se«£Ues- tration to issue." By R. Sup. C. 1875, Order 47, (not adopted here), the writ in Eng- land may issue without order, on pnecijje. (See Sprunt v. Puyli, J Ch. D. 567). This was not the rule under our Chy. practice (see Fid-en v. Wridc, 2 Chy. Ch. 212 and Loiiy v. Loyhj, 6 Pr. R. l:J7. Under certain circum.stances Chy. C. O. 289 authorized the issue of a writ on priticlpe to compel obedience to any order other than for pay- ment of money. See note to Rule 360. Ch Ord 29-2 " '*^^-' t'ommissions of sequestration are to be directed to the "Sheriff, unless otherwise ordered." (The English practice is other- wise). This writ is in the nature of process of contempt in I'em to compel obedience to a positive order of C/Ourt, and is therefore only availal/le to enforce payment of money where there is a positive order directing a party to pay a specific sum, and can not issue under the present Rule on an ordinarj' judgment for a sum of money in tlie former Common I^aw foini (London and Canadian Loan (nid Agi-nn/ Co. v. Merritt, 82 C. 1'. 375. See also ex jnirte kelson, Be Boart', 14 Ch. D. 41). The writ of setpiestriition has been shf)rn of much of its original efficacj' by the enlarged o])eratiou given here to the Ji fa. goods. It is now only to be emi)loyed as a last resource. The Ji fa. goods and proceedings for attaching debts are first to be used, and if by these the (lebtoi'p pro])erty cannot be reached, a, writ of sequestration may be issued on application in Chaml)er.«i, upon notice as a general rule, but it will in general only be granted when the debtor's lands are iu- suHicient to satisfy thf debt, and it tlierefure becomes of importance to tMii/ti .'lion the land and I'oalize theprolits tlioreof during the year which must elapse before they cru be sold undev a ji. fa., lands or when tlu! interest of the debtor is such that it cannot be taken under aji. fa. (iVV/.sti?i v. JS^elson, 6 Pr. Xl. 194). The Court has how- ever power to oi'der a sequestration instead of a^'. fa. if occasion should require (//>.). It is not necessary here to serve the judgment or order for payment, or a demand thereunder, as a condition precer leave ment, or by committal. (R. Sup. C, 1875, Order"" "'^^" 42, R. 5). Identical with the English Rule. M :| 450 ONTARIO JUDICATURE ACT, 1881. Enles Formerly where a writ of attachment on a ca. ,m. was ohtainerl, a 343-345. •^* ■^'^' ^^^^^^ ^^^ ^6 *l^f* issued, whereas proceedings for committal for disobedience of an order were no bar to proceeding also against the property of the contemnor (Smith, Chy. Pr. 7th ed. p. 185). As to mode of obtaining a writ of attachment see note to Rules 304 and 363. On a notice of motion to commit the defendant, Mallins, V. C, ordered a writ of attachment to issue against hnn {Piper v. Pijjcr, W. N. 1876, 202), but after o])taining an order for an attachment a party cannot move ex parte for an order for committal instead, (Buist V. Bridge, 43 L. T. 432 ; 29 W. 11., 117). The Court will not encourage motions where the object is not really to attach but only for an apology and costs, and tlierefore in Plating Co. v. Farquha7\ton, 17 Ch. D. 50, no costs were given. As to obtaining a writ of sequestration where an attachment is ineffectual, see notes to Rule 360. Also in the case of a corpora- tion, Cookv. Credit Valley Ry. Co., 8 Pr. R. 167. S44 Meaning o " Writ of execution,' anil " issu- ing of ex- ecution." 345 Judgment for con- ditional relief 6. In these Rules the term " writ of execution " shall include writs of fieri facias, capias [a] sequestra- tion, and attachment, and all subsequent writs that may issue for giving effect thereto. And the expres- sion " issuing execution against any party " shall mean the issuing of any such process against his person or property as under the preceding Rules of this Order shall be applicable to the case. (R. Sup. C, 1875, Order 42, R. 6.) (a) The English Rule has here the additional word "elegit." The Rules otherwise correspimd. Chy. Gen. O. 297 provides further as follows : "297. Every person, not being a party in a cause, who has ob- tained an order or in whose favor an order has been made, shall be entitled to enforce obedience to such order by the same process as if he were a party to the cause ; and every person not a party in a cause, against whom obedience to an order of the Court may be enforced, shall be liable to the same process for enforcing obedience to the order, as if he was a party to the cause." 7. Where a judgment is to the effect that any party is entitled to any relief subject to or upon the fulfil- ment of any condition or contingency, the party so entitled may, upon the fulfilment of the condition or contingency, and demand made upon the party against whom he is entitled to relief, apply to the Court or a Judge for leave to issue execution against such party. And the Court or Judge may, if satisfied that the right to relief has arisen according to the terms of the judgment, order that execution issue accordingly, or may direct that any issue or question EXECUTION, 457 necessary for the determination of the rights of the Eules parties be tried in any of the ways in which questions 3*5, 346. arising in an action may be tried. (R. Sup. C, 1875, Order 42, R. 7.) Identical with the English Paile. 346 8. Where a judgment is against partners in the jiHi^.,„,.iit name of the firm, execution may issue in manner fol- p^^r|"|rs. lowing : (a) Against any property of the partners as such ; (h) Against any person who has admitted on the pleadings that he is, or has been adjudged to be a partner ; (c) Against any person who has been served, as a partner, with the writ of summons, and has failed to appear. The service here contemplated would seem to be personal service ; ml qucere. {see Jackson v. Litchfield, S Q. B. D. 478 ; 46 L. T. 519) If the party who has obtained judgment claims to be entitled to issue execution against any other person as being a member of the firm, he may apply to the Court or a Judge for leave so to do ; and the Court or Judge may give such leave if the liability be not dis- puted, or if such liability be disputed, may order that the liability of such person be tried and determined in any manner in which any issue or question in an action may be tried and determined. (R. Sup. C, 1875, Order 42, R. 8 ; see Rule 57.) Identical with the Knglish Rule. This Rule provides the mode of realizing, against a firm or the individual partners, a judgment obtained against the firm (see Rules 40 and 57). Where the writ is issued against partners, not individually, but in the name of the firm, service of the writ on one or more will be sufficient (Rule 40) ; but the judgment must follow the writ and be against the firm ( llule 57). Therefore, if no appearance is entered judgment cannot be entered against any of the individual partners, even though they may have been served with the writ. Execution may, however, under this Rule be issued against individual partners upon the judgment against the firm {Jackson v. Litchfield, 8 Q. B. D. 474). This Rule shews that a judgment against a firm is not conclusive of the liability of a person who has neither admitted on the plead- ings that he is, nor has been adjudged to be a partner, nor has i\ 1 ,.i! ; lim ■ l\ ii > Ii; i I idtit: s^MJI 458 ONTARIO JUDICATURE ACT, 1881. 347 Prucipe f, 3 Ch. D. 276|. 10 Every writ of execution shall be indorsed with the name and place of abode or office of business of the solicitor actually suing out the same ; and when the solicitor actually suing out the writ shall sue out the same as agent for another solicitor, the name and place of abode of such other solicitor shall also be indorsed upon the writ; and in case no solicitor shall be employed to issue the writ, then it shall be indors- ed with a memorandum expressing that the same has been sued out by the plaintiff or defendant in person, as the case may be, mentioning the city, town, or [(a) other place], and also the name of the {b) street, and number of the house of such plaintiff's or defendant's 348 Indorse- ment of iiaiiii' aud acMrtiSs. EXECUTION. 45& residence, if any such there be. (Comp. R. Sup. C, Rnles 1875, Order 42, R. 1 1 ; Rej,^ Gen. T. T., 1856, No. 55, 348-350. Ont.) (a) FiiKtead of "other place" the English Rule has the word "jiarish." (//) The English Rule has here the additional word "hamlet." The two Rules are otherwise identical. lil^it II. F>ery writ of execution .shall bear date of the 3^9 day on which it is issued. The forms in Appendix ''*^* (J) hereto may be used, with such variations as cir- cumstances may require. (R. Sup. C, 1H75, Order 42. R. 12.) Identical with the English Rule. Where a plaintiff had given notice to the defendant to discon- tinue the action, and the costs had been taxed, no further order of the Court was held to l)e necessary to enable the Chief Clerk to issue a writ to enforce paym jnt, and tliat the writ may be varied to suit the circumstances of the case (Ballon v. Bolton, 3 Ch. D. 276). See note to Rules 170 and 172, pp. 203 and 204. 350 llUlllilh'l',. 12. In every case of execution the party entitled to execution may levy the poundage, fees, and ex- penses of execution, over and above the sum recover- ed. (R. Sup. C, 1875, Order 42, R. 13 ; see R. S. O., c. 66, s. 44.) Identical with the English Rule, and to the same effect as R. S. 0., c. 66, s. 44. The mere delivery of the writ witliout an actual or virtual seizure Poundage on does m>t entitled the Sheriff to poundage {N'atih v. IJirkinson, L. R. ,«'• /a. goods. 2 C. P. '252 ; Morrh v. Boulton, 2 C. L. Cham. 60), but the receipt of money by the Sheriff under a writ is a virtual execution of the writ though there is no actual seizure or sale {( 'on-iolidatcd Bank v BH-ford, 7 Pr. R. 172 ; Biiakks v. Bnfh Collifry Co., 2 Ex. D. 459.) Where there has been a seizure the Sheriff is entitled to poundage, though there be no sale, if by compulsion of the writ the debt is recovered directly tlirough the Sheriff (Morthnore v. Crar/i/ 3 C. P. D. 216, overruling Boi' v. Hammond, 2 (I P. D. 300), or indirectly by means of some compromise which is the consequence of the seizure, subject to R. S. U. c. 66, s. 45 {Mortiinore v. Crai/, whioli is fis fdll/nrs • "41>!). In Rule 3r>'2 aiil)-sei;. (h) the wonl 'periods' is iierchv subatituted for the word ' period ' in the fourth line of the saill sub-auction." By Rule 527, (.S0»*«) it is provided that judgment ahall not l)e signed in jury cases until the time for moving against the verdict has e.vpired, unless a Judge eertilies for execution sooner. Thi., is in effect the same provision as was formerly tlie rule in all eases tried at the .\ssize3, (see R. S O. c. oi), ss. 'JDS ami •ii>!>). Now, in actions tried by a .fudge, judgment may l»e entered as soon as given by the Judge, unless he makes order to the contrary. The use of the word "immediately, " in this Rule, probably sets at rest the (juestion rai.sed in CuUcn v. Vit/fi'ii, 2 (,'liy. Ch. !>4, anil CooHilt/c v. /i., c. 50 (corresponding with Kng. C. L. P. Act, s. I'JS, ft sf'f/.). Under those provisions the party seeking execution could apply to the Court or f. Judge for leave to enter a suggestion to the effect that such party was shown to be entitled to execution, and to allow execution to issue. And, if the case was made clear, the sug- gestion anil the consequent execution were allowed. If the case was not made clear, the suggestion and execution consequent upon it were disallowed, and the party was left to his writ of revivor. This was a new action, in which by the ordinary processes dead- ing the questions in dispute were brought to issue and dt The above Rule preserves alternative processes, ^cconiui^ ^s the right to execution is, or is not, sufficiently clear to be enforced sum- marily ])y a Judge ; but a somewhat simjjler jirocess is provided ; if the case be clear, the Judge may order execution to issue ; if it be not, he may direct an issue to try the right. An application for leave to issue execution, may be made ex jmrte (Mercer V. Lawrence, 2G W. R.506; LysayJitv. McUruth, 7 L. W. Ir. 532) ; but the Court or Judge may, if it seems proper, direct notice to be served. Where writa had expired, leave was given, on notice to defen- dant, under this Rule, to issue new writs to include the costs of the former ones and the costs of the motion (McDougall v. McDoikjuU, 3C. L. T. 42). 357 Execution on orders 19. Every order of the Court or a Judge, whether in an action, cause, or matter, may be enforced in the same manner as a judgment to the same effect. (R. Sup. C, 1875, Order 42, R. 20; See R. S. O., c. 67, s. 12). Identical with the English Rule. EXKCUTION. The same effect w;ih given liy I!- S. (»., <;. ()(>, h. 7'2, and c (>7, b. I'j, (see in note to IfnUs .SIV.l, lUili .iniira), an ris|u'i;ta an <>i') which apply to jiidginents may not he employed to enforce an order ilismissinj,' an action with costH for want of prosecution {('rnnc/ti v. Crom, 4 (}. 15. I >. 'J'J.'i ; see iiowever .V(,// v. Siiik/s, \\. S. l.SSH, 74). As to tho pra<;ticc in this I'rovinee (see notes to Kules 'M>(\ and •STO). JO. In cases otlur than tliosc mentioned in Rule 17, any [)er.s(jn, not beiiiL;' a i:)arty in an action, who obtains any order, or in wliose f.ivour any order is made, shall he entitled to enforce obedience to such order by the srune prcjcess as if he were a party to tlie action ; and an\- persi 1: not being a party in an action, aj^ainst wlioni (.)bediencc to any judj-^Mnent or Older ina\' be enforced, shall be hable to the satne process for enforcint^ obedience to such judL;nient or order as if he were a party to the action. (R. Sup. C, 1875, Order 42, R. 2i.j SauK! as the I'iUglish Rule, and corrosponila with Chancery Order No. L'i»7. 21. No proceeding by aitdifn (jucnla shall hereafter be used ; but any party against whom judgment has been given may apply to the Court or a Judge for a stay of execution or other relief against such judg- ment, upon the ground of facts which have arisen too late to be pleaded ; and the Court or Judge may give such relief, and upon such terms as may be just. (R. Sup. C, 1875, Order 42, R. 22.) This Ivule is identical with the English Rule referred to. Auditd ijiiercla was a legal jirocess in the nature of an action, whereby a party against whom judgment at Law had been obtained might prevent execution on the ground of some matter of defence which there was no opportunity of raising in the original action (see R. S. O. c. 50, s. 1.32 ; and Harrison's C. L. P. Act, 177). 22. Nothing in any of the Rules of this Order shall take away or curtail any right heretofore exist- ing to enforce or give effect to any judgment or order in any manner or against any person or property whatsoever. (R. Sup. C, 1875, Order 42, R. 23.) Identical with the English Rule. »0 465 Kales 337 360. 358 III r;iS() of I crs 'IIS not I iiiiiciH. 359 Ai')ilic:ition ill lieu of (indila ijKi'.itla, 360 Saving of fxlstiiig I'igbta. Hi ■'Hi .ill M ,.'ll .. iJ i^iipHj r\ '1 ijr'K-%9«t& : . .,TT ■| 466 ONTARIO JUDICATURE ACT, 1 8(S 1 . Bnles 360-352. Ch. Old. Amougat the existing modes of euforoing a judgment or onkr preserved ])y tliis lliile will be that l)y writ of seijuestration to eoinpel the doing of an aet other tliiui payment of money, in resjiect to whieli the following Chancery Orders may be referred to : — " '288. If a party who is ordered, otherwise than by an order of course, to do any act other than to pay mi^ney, in a limited time, refuses or neglects to oljey tiit; order according to tlie exigency thereof, the party prosecuting the order shall, at the expiration of the time limited, upon liling with the Registrar an affidavit of tiie service of tiie order, and of the non-performance thereof, be entitled, upon jimdpe, to a writ or writs of attachment against tiie dis- obedient part}'." Under the present i)ractice, however, this writ cannot be obtained upon y>yvtciy)e (see note to Rules ;^0+and SOo). See also Chy. (». 0. '2'^',^, printed in note to Rule 3G4, for the notice reiiuired to be indorsed on the order to be obeyed, and tiie notes there as to whether that indorsement is now re(iuired. •js'.i " '28!(. In ease the party shall be takcii or detained in custoiiy under the writ of attachment, without obeying the order, then iijtdji the siieritf's return that the party has been so taken or detiiinei, the party prosecuting tlie order shall be entitled, upon jinrcipr, to a commission of secpiestration against the estate and eli'ects of tiie disobedient party." Oil. Oiil. i".)ii "-!)*)• if an attachment cannot be executed against the jiarty refusing or neglecting to obey tlie order, by reason of liis lieing out ot tiie jurisdiction of tlie ( ,'ourt, or of liis having aijsconded, or that with due diligence he cannot be found, and tlie bViiirt is ^latislied by atKdavit tliat siicli is tlie ease, tlie party prosecuting the order sliail be entitled to an order for a commission of' seipiostratioii against tile estate and effects of the disobi'djeiit pai s . ,. it shall not he uecessaiy for that purpose to sue out an att i"' leut." Cli. Ont 361 Onlrr 1)1 writs II. i: affrctfil. 23. Nothini^ in this Order shall affect the order in whicii writs of execution may be is.sucd. (R. Svip. C, 1875, Order 42, Kulc 24). Identical with the English Rule. See as to the order of writs and other provisions respoctinu the same IL S. U. c. lib. 362 Writs..! OUDER XXXIX. WRITS Ol<^ FIKIJI FACIAS, &o. 1. Writs of /icrlficijis {i() shall have the same force and effect as the like writs ha\e heretofore had, and shall be executed in the same manner in which the like writs have heretofore been executed. (R. Sup. C, icS75, Order 43, R. i). (a) The Iviglish Rule has here tlie words "and of el< ijif. ;" it \i otherwise the same as the abovi- Kule. See note to Rule '.Hid. ATTA('HMKNT OF TllK PKKSON. 2. Writs of vunli/iimi rxponux may be issued and executed in the same cases and in the same manner as heretofore. (Comp. R. Sup. C, 1875, Order 43, R. 2), The Knglish Rule, so far as relates to writs of vi>nnis erctesidsticii, sef/iu'slniri /(iritin ik hoiiiti erclf.-ii(iKfirid, and all other writs in aid of a writ of Jicri fdrids or of ('[('(/if." The Sheriff .should sell the goods under a writ of Ji. fa. without tli(! issue of a iwii. ex., but where he has seized, but for some ri'asiin not sold goods, he may be required to return the ji. fd. and tln'reupoii a writ of ihti. ex. may issue an [)rieeii)e. After the delivery (if this writ to tlie Sliuriff he is bound to sell the goods and liave the niiiucy in Court immediately after its execution {(.'hit. Areh. l.'jth ed. ')^[ ; Kriijktk'H V. JSirrh, :\ Camp. ,")•_> 1). 467 Rnles 363, 364. 363 OtliiT writs. ' i 'i rf * ■■■'■■ 1 * , ORDE a XL. ATTACHMHNT OF THE PKRSON. 364 I. A writ of attachment [aijainst the person shall „, bc issued under the same cnxumstances and m thetacUmont. same manner and] shall have the same effect as here- tofore accord i 11!^ to the practice of the Court of Chancery. (^Comp. R. Sup. C, 1875, Order 44, R. i ; R. S. O. c. 67, ss. ID. 1 1 ; G. O. Chy., Nos. 288-294). The I'jUglish Rule lias not the words which are in brackets ; it is otlierwise to the same effect. I{. S. <). e. ()7, sees. 10 and II, apply in terms to tiie Court of ('!i!incery, as well ;is to the ("ourts of (.),. H. and C. 1'. and ( 'ounty Court'', and are as follows : " 10. Process of contempt for non-payment of any sum of money, |{,.v. stat. (ir t'(M' non-i>ayment of any costs, charges or expenses, payable l)y i'. >'<', s. lo. any ilecree or ordor ot tlie Court of Cliau(?ery or ot a .Judge thereof, or liy any rule or order of the Court of Queens Rencli or Conunon Piijas or of a Jutlge thereof, or liy any decree, ordi'r or rule of a ('(i\iiity Court or a Judge thereof, is abolisiied ; and no [lerson siiall Iju iletiiued, arrested or held to l)ail for non-[iaymeut of money unkss a special orJer for the purpose is made on an aflidavit or atiiilavits establishin:/ the same facts and circumstances as ai'e iR'L'L's.sary for an order for a writ of rdpiiu dij sdtl'npripi', to a writ or writs of attaclnnent against the disobe- dient party." Hut Rule ;>();■), 'nij'ra, re({uires a notice to he served and leave to be obtained before an attachment is issued. Ch. Old. JiiS "29.S. Every order recpiiring a party to do an act, other than the payment of money, shall state the time alter service of the ordcT within which the act is to be done ; and upon the cojiy of tin served, there shall be indorsed a meuinraiulnm in the wonls the eflect set forth in Schedule \." The following is the part of Schedule N refen-ed to : " Indohsk.ment on OhdI'.h, sr.iiVKii inhkk ()[;i)KK '2[VA. Schedule N. If you. the within named Hicrf insert tin ikiiiic of f/w )>rir/i/), neglect to ol)ej- this firder by the time therein limited, you will he liable to be arrested by the sherifT ; and yon will also be liable to have your estate sequestered for the purpose of c()mj)elling you to obey tliis order without furtiiei' notice. If you wi.sh to ajiply to the Court to add to, vary, or set asidi: the snid ord.ir. or to suspend tl oj)eration thereof, you must do so before the ex|iiration of the ti within limited." Under tlie new practice it has buen held in Knghind that this in- dorsement is not necessary, as an attadunent cannot now lie ol)- tained except upon notice, but that tlic rule may be ditlLrent in the case of a sequestration (Tltinnnn v. P. 'J!Kt, in note to lUile lUiO) so that the indorsement would seem to be not necessary in either case. 865 Leave tn issue. le me 2. No such writ of attachment without the leave of the Court or shall be I Judge, i.ssucd to be applied for on notice to the j)arty against whom the attachment is to be issued. (R, Sup. C. 1875, Order 44, l<- 2.) Identical with the P^nglish Rule. This Rule introduces an important change in the Chancery Prac tice ; inasmuch as a writ of attachmcTit can never, for the future, issue as of right without an order, granted after notice to the party (linhicntv. BaUicnt, 1 P. D. \2\ ; \V. N. 187."), "JIS ; Ainid v. Hirlien, 2 CAL D. AL'S ; JJallan v. Gh/n. 3 Oh. D. liK) ; See Ri' //riroii's Estate, Ilallv. Ley, 12 Ch. D. 79.')'; Re Kni(j)d, Knhj/U v. Om-diner, W. N, 188;{, IG'2). This was already the Rule in the Common Law ('ourts, except in the case of .an attachment against a sheriff for disobeying an order to return a writ ; in which case the rule was made absolute, ex parte (Reg. (ien. T. T. 1806, R. 140 ; see Jupp v. Cooper, 5 C. F. D. 26). In Jupp V. Cooper, all that the attention of the Court was called to was whether the order shoulil be al)solute in the first in- stance, or only an order niii, and the latter was granted, as also wa» done in Fowler v. Aahford, 45 L. T. 46 ; but it would seem that an ATTAOHMEXT OF THE PERSON. 469 attachment against tlie Sheriff, like any other attachment, is now Rule 355. governed by tht; new llule {Ei/ndf v. Gould, 9 Q. li. D. 335). See alao Dal'af v. G'l/n, supra ; Re lleirons Edatp, supra. The provisions of I'ule 428, infra, apply to an application for an attachmoiit. Th« costs are tlierefore in the discretion of the (Jourt {Ahud V. nich'ii unpra), and should he asked for and disposed of on the application for the attacliraent (ibid}. A motion for attachment wlicn made for noTi-compliance with rules of practice or orders of course should be made to a Jutlqe in Chamburs, ])ut when made for non-compliance with an order or judgment of the Court should be made in Court {Klein v. Union Fire. Ins. Co.. 3 C. 1.. T., 002). Neither the Master in Chambers nor a County Judge (acting under Rule 422) has jurisdiction to entertain a motion to attach or commit as such mattf-rs were exce])tcd from the powers conferred iipon the Clerk of the Crown and I'leas, (}. B., (sue Rule 420 ; Ke.efe v. Ward, 9Pr. I!. 220). Two clf'ar days notice of motion is suHicient. The practice laid down in Abidl v. Hilts, G I'r. R. 122, and Brjic.c v. Mc.lntjire, 7 Pr. R. 1.S4, is not now in force {.]fiina<)han v. Dohhin, 2 C. L. T. 215; See also Gunk v. Credit Vatle,/ R,/. Co., 8 I'r. 1!. 1(57). Where the order to be obeyed has been [)ersonally served it would not seem to be necessary to serve a notice of motion to attach ])er- sonally upon tlic disobedient party, if he has a solicitor (see IFi/.so/t V. mi.^i, 7 Pr. IJ. 57). In Mann v. Perri/, W. N. 1881, 4 ; 44 I.. T. 248 ; 50 I.. J. Chy. 251, it was held that notice of nu)tion to commit must be served per- sonally, unless some reason is shewn for dispensing with personal service, ( tn a motion for an attachment however, it had previously been held that service nf notice of motion ujion the solicitors on the record of tlie party to be attached was sufficient though personal service was not sliewn to be impracticable (Broivnlmj v. Sahin, 5 (Jh. D. 511 ; Richards V. Kilchiii. 25 W. U. ()02), or by leaving the notice at the residence of the party affected thereby {Re a Solicitor, 14 Ch. D. 152). The })oint cannot, therefore, be said to be clear. See also Titnei/ v. Stansjiehl, infra. In Re Steele, 23 Sol. Journ. 90t), the question Avas raised whether the order to be obeyed need be personally served since an attachment can now only be had Ujjon notice. It is submitted, however, that there is nothing to alter the former practice whicJi retjuired personal service of the order to be obeyed (exeejit in cases under Rule 237), more especially if the notice of motion to attach need not be per- sonally served. Service of notice is waived by Counsel appearing and consenting to .an enlargement {Ex. p. Alcock, 1 C. 1'. D. OS). The co[)y of order served must be an exact co]>y {Re Holt, 1 1 Ch. D. 1G8 ; see also Ex. p Smith, 28 W. R 174). The ]jrovisions as to substituted service have been held not to apply to an apjilication for an attachinint, but on!}' to serviee of writs of summons {Anon., W. N. 187(5, 105 ; but see cases ,s7/;>ra, p. 180, and Williams v. Johns, 2 Dick 477 : 1 Mer. 303 {d) ; Pulteneij v. She/ton, 5 Ves. 147 ; heManneriUe v. DeMannerille, 12 Ves. 202 ; Lechmere Charlton's case, 2 M. & C. 335 ; also Hope v. Cdrmqic, |j. R. 7 i'iq 254). Service of notice made on the clerk of a solicitor at his office, his residence not iteing known, was held to be good service, but, not- ^' lt% iVK-. n a I M I ' 470 ONTARIO .JnHCATlKK ACT, 1881. Bnles 365, 366. withstanding, the order was stayed for a week, and notice tliereof directed to he served on the solicitor (T'dney v. Slannjiplil, VV. N, 1880, 77). An interlocutory order, under l\ulcs IVM) el scq., ui/rn may be en- forced hy attachment [ITutchinsDn v. Ilarlmnnt, W. X. 1877, -It), But a judgment or order, under those Rules or otherwise, if it be for the payment into Court of money, cannot be enforced by attach- ment. An order should be drawn up and entered before being enforced by process ( li'iUard v. ToiiUintuH, 48 \j. '\\ 515). On a motion to commit for contempt, an attachment may issue ( Piper V. Piper, \V. .\. 1870, "202), but on a motion for an attach- ment an order to commit cannot be obtainetl ex parte [BhisI V. Briihj,; 43 L. V. 43-J ; 129 W. 11, 117). A writ of atta<;hnient may l)e issued ayain.st a i>arty out of tiie jurisdiction, though it can only be enforced in the event of liis coming within the jurisdiction [Blooinjield v. Brooke, 6 I'r. K. '2i)4i. No i)articidar return day i.s inserted in the writ (see form .\n. 181), but after a reasonable interval a return maybe required (Owen V. Prikhard, W. -N . 187(), 147). A further oj)portunity to comply with the order may be given, or the order mav lie stayed, pending an appeal, in the discretion (jf the Judge (.l/(7/orv. Thompson, W. N. 1883, 128). A person attached for misconduct will not be detaine3). Hut, in order to punish anyone who has been guilty of a contempt, he may be imprisoned for a stated perioil, au. J. 394 ; 3 C. L T. 594), Seiiuestration is not the proper remedy for disobedience to a mandamus (/"''.). As to attaching a Member of Parliament see lie Aiiijlo-Frfuch Co-ope rati ri- Soc, 14 < 'h. D. 533. ORDER XLl. ATTACHMHNT OK DEP.i'S. 366 Application I. [(<0 Wlicrc tlic judymetit is for the recovery by, tiou of'ju.'ig- or payment to an}- i)erson, of money, the party entitled ment d'ei.tor to enforcc the judgment], may [[h) without an order] examine the judgment debtor upon oath before a ATTACHMENT OF DEBTS. 471 Master, or Local Master, or an Examiner, or before Rule 366 one of the Clerks or Deputy Clerks of the Crown, or before the Jud<^e of the County Court of the County within which such debtor resides, or before any official referee, [{<:) touchin<( his estate and effects, and as to the property and means he had when the debt or lia- bility which was the subject of the action in which judtj^ment has been obtained against him was incurred, and as to the property and means he still has of dis- charging the said judgment, and as to the disposal he has made of any property since contracting such debt or incurring such liability, and as to any and what debts are owing to him]. (R. S. O., c. 50, s. 304 ; see also c. 49, s. 17 ; R. Sup. C, 1 875, Order 45, R. i). 'I'his Rule vavios from l)(»tli the Ontario Statute and tlie Kiii,'lisli Rule. (a) The words here iu Ijraekets are taken from the Knglish I'ule, anil are more extensive than the corresponding words in tlie licv. Pt-t. (/>) Both the Statute and the Knglish Rule requiie an order, which the [ireseut Ihile dispenses with. (c) The clause here in brackets is taken from the Ontario Statute. The fees are ])aya5)le in stamps on an examination before a County Judge or Local Master under an order made by himself (See Rule 5m. Ry R. S. (>., e. «)7. ss. 12, 13 (which are the same as R. S. O., c. 4ft. s. 20) it is provided as follows (there are no correspomling pro- visions in I'Jngland) : " 1'2. Every decree, rule or order of the Superior donrts of Law, Rev. Stat, c and Kquity, and of the County Courts, diriicting the j)ayment (if"^. '^-I^ money or of costs, charges or expenses, shall, so far as it relates to sucli money, costs, charges, or expenses, be deemed a judgment, and the person to receive paymt'iit a creditor, and the )>erson to make paynnmt a d<'btor, within the meaning of this ArA ; and the said person shall respectively have the san)e remedies, and the < ourts and Judges and the officers of justice shall in .such cases liave the same powers and duties, as in corresponding cases under this Act. " 13. In case a decree or order in < "hancery y attaelnnent of debts (see notes to llule 357). Some doubt has been expressed as to whether the above U t ( I i . J \\\ ! ) I' ' ■ .(- ^■Mi 472 Bales 366, 367. ONTARIO JUDICATURE ACT, 1881. sections 12 and \'.\ of Rev. Stat. c. 67, api)ly to extend the word "judgment" in this llule and Rule 370. In MrLiuhlin v. Black- hum, 7 Pr. R. 'JS7, it was held that the debtor was liable to ex- amination though tht! judgment was only for costs ; but in Mfijtrs V. Keiiilrick, i) Pr. R 3(33, tliat case was ilisapproved of, and it was helil that a defendant having a judgment for costs against the plaintiff, was not entitleil to examine the plaintiff under this Rule as a judgment debtor. Where therefore it is desired to enforce in this way a judgment or order for costs, or for payment into ( 'ourt, it m ly l>e necessary to proceed l)y an order under Rev. Stat. c. 4!>, s.s. 17 and 'JO (see McLnchlln v. Blackhnrn. 7 Pr. K. •J87), tho-igh Mc-ijer.i V. Ki'iulrkk, 1) Pr. R. at p. 364, seems to cast some d()ul)t upon tiie possibility of proceeding now except under tlie .fudicatiue Act. A judgment for the recovery of land and awarding costs is within this Rule and the costs may be garnished under Rule 370 {Lloi/il v. Walldci', 1) Pr R. 335) ; and prol)al)ly, as formerly, an order for costs of an interpleader issue (llnrth'y v. ShemwvU, I 1>. & S. I ). A debtor under arrest on final process maybe examined [Urox'n v. Brminh/e, 2 U. ( '. L. J. 213). A married woman may In- exaniinud as to her separate estate (Stmulanl Bank v. Mi'Linahj, 7 I'r. R. 35iil. Though an examination may be had without an order in the first instance, yet, where a party wi.shes to examine a judgment ilebtor a second time, lie must make a sid).'een disposed of before the debt was incurreil (Onl'irio Bauk v. Mitchdl, 32 (;. \\ 73). 307 2. In case the judgment is against a body corporate, f )rl'xMmiIm- th to cnforcc the judgment may in cer" of loi- ^^^^^ manner e.Kamine any of the officers of such body poratious. corporate, upon oath, before the Judge of the County Court, or other officer, referred to in the next preced- ing Rule, touching the names and residences of the stockholders in said body corporate, the amount and particulars of stock held or owned by e.ich stock- holder, and the amount pad thereon ; also as to any and what debts are owing to the said body corpo- rate, and as to the estate and effects of the body corporate ; and as to the disposal made by the body ATTACHMKNT OF DEBTS. 473 i 'i ■"J corporate of any property since contracting the debt Rules or liability, in respect of which the said judgment was 367-369. obtained. (See R. S. O. c. 49, s. 19.) The Statute referred to requires an order which now under the Rule is dispen.seil with. There is no eorresponding provision in England ; and there was no pf)Wor to order the examination of an otficor of tlie corporation in aucli east; {Dirk.ion v. S'l-ath, i'< ad tuifiK/aricndKin may tliereupon be issued upon sueii judgment, or in case such dei)tor is at large upon bail, such Oourt or .fudge may make a rule or r)rder for such delitor's being committed to close custody ; and the Sheriff', nu due notice of such rule or order, shall forthwith take sueh debtor and conunit him to close custody until he obtains a rule of Court or .a Judge's order for again allowing him to go out of close custodj', on giving the necessary bond in that behalf, oi' until he is otherwise discharged in due course of law. " 19. In case any person has obtainetained a rule or order for the paymcot of inon<;y agjvinst a body corftorate, sueh ])erson may apjdy to the Court, or to any Ji»dgc having authority in the pi'emises, for a rule or order, tiiat any one or more of the officers of such body corporate (to be named in such rule or order), shall be orally examined upon oath l)efore a .hnlge or any other person (to be named in sucli rule or order), touching the names and residences of the stockholders in said body corporate, the amount and [)arti- culars of stock held orow!»ed by each stoekiioliler, and the amount paid thereon ; also, as to any and wliat debts are owing to the said body corporate ; and as to the estate and efi'ccts of the body cor- porate ; and as to the disposal made by the body corjjorate of any property since contracting tlie debt or liability in resjtect of which judgment or rule, or order for the i)ayment of money M'as obtained ; and the (!ourt or Judge may make such order for the examination of such otlicer or officers, and for the production by him, or them, of any books or docutni'nts as may seem lit ; imd in ca.se any such officer does not attend as reipiired by the sai. c. .")() : Rev. Stat. ".SO"), in case sncli d(;btor does not attend as recpiired by the c. 50, 8. 305. gjiid ,.„ig y,. ,,i-,li'r, and does not allege a sufficient excuse for not atten. (ilH). I he de]>tor must have contumaciously refused to answer, or so e((uivocateil as to render his answer no answer at all ( Lciikhi v. Liiikhi, ('» l*r. U, 184; see also Men ill v. MrFarnn, 1 C L. T. ISS ; lUuffn' v. li,irti)ii, '2 ('. L. T. I()4, and tiie authoritit^s fully reviewed in Schiuhhr v. Ayiicw, 6 I'r. I!. H.S8). The application is to a .Imlge in ("handjcrs (see Jf. ('. litnih v. Liirhtimii, 7 I'r. 15. 102) Jt may be made at the time of the exam- ination and without further nc)tice, if the otHc(M- bi-fore whom the examination takes place has jurisdiction to entertain it, c //. in County Coui't cases where the exannnation is before the Judge (Puuton V. Ballen, 2 E. & A. :i7!» ; Baird v. Ston/, '2H U. C'. Q. B. (i'24). An or, and tin let'orc; wlietin'r f,'arnisiu;e proces.s can Ix? employed where tlio jndi,'ini;nt or order of tlie cri'(litor m* only for eo.st.s, lian l)e(!n ({lu^stioned. (.Seo notes to i!uK' .Si)() ; (,'liriit v. MrColl. 8 I'r. I!. 4:.'8 and Mvi/prH v. Kendrh-k, !» I'r. \\. :^()8-!^. A judgment fni- ri'eovei'v of land and awarding costs is witliin tills Rule (Lliijid V. Wdlliirc. I'r. It. .■<.'{.")), and also a rnle giving costs of tlic (lay to the defendant (A;///.)/ v. Ca)>i'll, <» I'r. :{."» ; see also Whit. taker v. WI,\Uassing of tlie oi-iginal garnishei; clauses. Since the present re-enactment of those danscs therefore, a crtMlitor may attach any deht dne hy any other ))i rson to his jndgnii ut dehtor making no distinction hetween hgal de)>ts garnishahle umlcr theC. L. I'. Act, and e(iiiital)le(h:l)ts (/>('((//((;<.'/ V. ll'f/o;(, 7 t>nt. .App. 42; Wihiin v. Diindux, W. N . 1870, 'j;52 ; Siuniiiff» v Moriihtiv, 61 li. T. Jour. 140; A'c Ci>w:ni\< /■J^tntc, 14 ('h. D. ti;).s ; //,i„i,r v. Oile.1, 11 (Ml. I). i»4-J). So formerly it Avas held that money in the hands of a n.'ceiver could not he attai'hed (Rk.ssi // v. Ea.sf Aiiij/lau A'//. ('(>., .S Mac. tt (}. 104 ; Anir.'i v. liivh'uhpwl hocks. •_'(» Ueav! :'..S'J ; A'.' Iliintcry.dmn- mil, L. 11. 8('. I'. 'J4; Junrs v. limwn, •_>!) L. \\ ~'.) \ sec Fr< iirh v. Lewis, U) U. C. Q. K .147) . Mut in Re Cowati's E.state{\\V\x. D.tl.SS), it was held by Ifall, \'. C, to he otherwise under the .fudicatiire Act; and a receiver in an aihninistration iiction, who had heeii directed to pay money to a legatee was. under this Urder, dinctcd to pay the same to judgment creditors of the legatee. V. ('. Hall held that the Kules as the attachment of debts "are appli able to a fund |)ayable under an order of tlie Court, but in the hands of a receiver, just as mud; as if the fund were not in Court, but in the hands of a trustee whose duty it was to pay it over to the ilebtor." Re Cowan's Estate was approved and followed in Leainliuj v Wooii, 7 Ont. Ai)p. 42, wiierc moneys payalde to (j1. as rents of real estate of which a receivi-r hat heiiiL; attaclialtlc lias lioeii Maid t(» ht Rujg 370, wIlL'tluT tilt! (Ii'lit is till! Mllljcct of Hct-oll' ( H'cZ/.v/cr V. Wriistrr, ,*{ I Hcav. .'{'.»:{; Mry,iuxJil'>ii v. Wilis/rr, li l'. ( '. L. .1. 17). Wliat tlif Court oi'.lnci;;^ is eiiiiiowt rctl to attach iiiitltr tiii.s link- is, (It i)ls owiim or afcniinu; to tlii' jiKl^'iiicnt dcMor, win tlii'r l(!gal or I'lHiilalpif, wiiicli iiKJiiilcM any iiioniy, or a fuini in wliicii lie ia iiittTi'stfil, iind for wliii'li ill' (.'an kuc, as wfll aw dclits a.s(!ti taincd to 1)1' .HO. i'lii! delit niu^t 1)L' ail alistdute and perfected delit, not nieiely a ('(iiiditioiial one, 1. (j., payaMe iijion the e.xt'oiition of a coiivcyanco [Ihnrill V. Mttnipi'illliiii 'hislri.i /,",/ < (,., liH'li. j). ftdS). The I'lile aj^die.s todeht.H aceiiiiiig as will aw dehts aetnally owing (see Spiirkny. Yuiniiii', S ir. ('. I,. LTil ; 'J'djip v. JoiK.-i, \,. \l. 10, {). 15. r)!»l ; I'.i-pdrti' JoKcli/iK , S Cli. I). ',V21). Delits thu.s due, hut not jiayahli' till a future time, may he ordered to hi! jiaid at su^ih future date ; .-ind it is not iieeessa'y t() wait and ohtaiii a fri'sli order for payiiK lit of eaeli instalnuiit as it hecomeH jiayahle (7V//*/' v. i/o«r',v, li. li. 10 (). h. ;")',•! ; see also A'c < 'i^trn ii\-! Esl,il> , iind /.< iiiiihii/ v. W'o'td, .siipni ; liuDtli v. 'J'vdit, I'J (). I'.. I>. M; hut the garni.shce Ciiniiot 1)1. comjuiUed to pay hefore credit given liini lias exjiircil {//an/iiiij V. liarrntt, S U. (.'. L. J. Ml). W'iieie the trustees of an annuity payahli! to a judgment dehtor half-yearly had advanced to liini more than was jiayalde at the end of the Last half-yearly jieriod, it w;is held that nothing was attach- ahle as either owing or accruing ( Wchh v. Sfniton, II (). H>. I). olS ; see lioiilh V. Trai/, .•\r> ; Shait/i'i/ v. Moon-, U I'. I'.'l,. .1. 2(U|. Wliero owing or accruing, however, a dehtor's interest in a trust fund may lie attached {^ttfi/i v. t'idr-sc, 47 li. •!. (i. 1>. 7<)*) ; Lloifil v. Wtilhice, y I'r. |{. xir)). 'I'he following have alsi heen held to he attachalile : — Attucliable Jleiit due l)y a tenant {.ilitrh.-lt v. Lee, L. II. '_' q. li. '.'59) ; hut ''«lJt»- not rent not due (('onuiwrcidt Hunk v. Jtirrii, 5 (J. (J. L. J. GG ; McLaren v. Sudv-.irth, 4 U. C. L. J. 23:i) ; Money in the hands of a Sheriff, the proceeds of an execution levied hy liim (Murray v. S'uiip.tou, 8 Ir. C. L. -Ap]). xlv. ; Re Swarf V. Miilir, 3 Pr. I!. .'^85), or of a Division C!ourt Clerk (Ji/aiid V. Au'lrews, 4") 11. C. Q. H. 4.HI), or Bailitl' (Lurkharl v. (Iran, - <-'• I>. .J. X. S. IG;i; though the contrary has been held in England [Dolphin V. Laijton, 4 C. P. D. IHO; ; Money in the hands of a receiver (/iV Cowan EMate, 14 Ch. D. 638), or olficial liquidator (ex parte Tamer, 2 D. F. & J. .354; see Maekv. Ward, W. N. 1884, IG) ; Rents due to a mortgagor before a notice given by the mortgagee to the tenant to pay subsequent rents to him (Patterson v. O'lieilhj, in note to sec. 1 7, sub-sec. 5, of the Act). Suiplus money in the hands of mortgagees after sale under a power in mortgage (Nicol v. Ewin, 7 Pr. H. 331 ; see McKay v. Mitchell, G U. C. L. J. Gl. See also Chattertonv. Watney, IG Ch. D. 378 ; 1 7 Ch. D. 259, where it was held that a judgment debtor who had obtained a garnishee order against a mortgagor debtor of his del)tor was not entitled to surplus proceeds of a sale under a prior mortgage, which took place after his garnishee order, but the holder of a garnishee order against the tirst mortgagee after the sale waa entitled. •^• in;,- : 478 Rule 370. Not attai-hiililu. ONTAHio .ri'DrcAriiji; act, 18S|, Sit/iiiiniii V. Donor.in, 10 \v. ( ', L. |{ r>ivi' ]•:>[. -MO ; L, i;, ,S < 'liy. TST ; .)/;//»/• v. linil'll'si,,!,,, •_>!' Cli' l>. 'J.TJi. Moni'v pay ill ill.' uixU r iv I'oiitract tor work iloiic for a Municipal Coqioratioii (Ahlcii v. Ihtimnr, •_' I'r. I!. WWW). Moiusy due to a liailway (.'onipaiiy tor tlic purpose of ilistriliutimi among its sliari'lioMors under an agrfiniunt sanctioni'd liy Act of I'arlianu'ut, may l)c attached liy a liieditor of tlie ('om[)any (/io^cA V. Till Si'i'i-n (hiku, <(v'., I'lti/ii'iij/ Coin/xiiii/, 4 Ivk. I). I'.V.i). Money in tlu^ hands of an agent in ttiis Province may In,- garnished where the garnishee resides out of the jurisdiction (lirmtui v MrnlU, 'A IJ. i'. li. d. .'ill, hut not wheiv.' Ilie garidshce is ii foreign corponi- tiou (liiiiil: of Jint'inli Xort/i Amcrlcit v. Ldnij/in;/, 'J (', \j. .1., 41 ; Liniiln V. Dii-L-wu, G L'. (J. L. J. irj). UjHm a judgment against an executor as such, a deht diu' to the testator's estate may l)e attaclu^d {/iar/on v. /{ulirr/s, l> H. tS: \. !),'{ ; Foir/i-rv. /,'<)l),'rf.i, 'J dill'. •«'•-'<); Tiffniin v. linlhi,, IfSC. I'. i»|). 'I'ln,' order in smdi ease should show on its face that it is dii'ected to the executors as such (.Vi('(V'«,s V. /'IicH/m, L. I!. lOChy. 417(- After the analogy of ixji.j'd. undci' which the goods of any one of those against whom it is issued may he taken, a debt due to one of scxeral judgment dehtors may he attaeheil to satisfy the judg- ment ag.iinst all [Mllli r v. Mf/iiii, 1 I"), it Iv 107')) ; hut a deht owing to two cannot he attached for the deht of one ( AV Siinir/ v. Mi/lir, 3 I'r. U. ;«."); MrConiurky. I'urk, !» V. ('. ('. I'. XW). As to pensions ami superannuation allowances (see Inni'^ v. Knsi liHlhi Co, 17 C. 15. ''i'>\ ; /><'iil V. /),->,/, L. II I |>. .vv; 0. .S(;() ; hx parte I/utvLrr, L. I!. 7 I'hy. '-'14; Wil/cnrk v. 7V,/v//, ;; Hx. D. .•{•_>;{ ; Sitiisoiii V. Sii.ii.' ; Jiiir/, v. /iir.-li. 8 T. I), Ki.l ; JiootI, V. Trnll, ]'2Q. H. I). 8). A debt of an unascertained amount if only it lie jiayahle as kooh as ascertained {A'l Safo v. Hithltunt, 8 I'r. U. 44.1, where costs renuvined to he taxed ; lie Wifliroin, Pouch' r v. JJonordii, lit (!. L. J. !>7, 1 14, where the anu)unt to he ffuind due to a plaintilf who luid been declared entitled to a mechanics' lien was attacluMl), The following are not attachable :— l'nli<|uidated damages cannot be attaeheil i Johnson V. I)ht nioiiil, ] 1 Ex. IW) ; though seeured by hond in a penal sum \'ih. ; (Ir'isirohl v. Bu{f. & Iv O.S ; Dresner v. Johns, 28 L d. (J. I'. '281 ; In re Newnvui, .S Oh. \). 494; J3o>id v. JLu/w-s, 5 Vr II. lo ; T(Ue V. Corponiuon uf Toronto, .S I'r. U. 181 ; Bunko'' Tm \. Burton, 4 I'r. 11. oli ; Givi/nne v. AVi-.s, '2 Pr. 11. '_' ' : 'n-rts v. Citi/ of Toronto, lG(Jr. 230). ' Where a claim for work done uiuler a con liijuiilated damages ai'e referred, there can be latter until after award ( 'J'nte v. Tiie Corp Toronto, 10 U. 0. L. J. (50 ; 3 I'r. 11, 181). So any claim whicli may or may not result in a debt a> a notice to treat under the English Lands Clauses Act, on which notice nothing ill! one for u -.irnishment of liic 'ion of V (Jity of ATIACMMKXT OK MKUTS. h.iil l)(«n floiif (ll'ii-hiinlniK v. i'Jm'il, •_' ( '. I'. I>. !» ; an uirisfcrtiiiiu-il liiihiiici' ilin- frmii Dili! jiiirtiior to uiiotlK-r (('miijtlx II v, I'lihn, W V. V. \.. .1. <>^<). Sivliry not Vft payaMi) (//«»// v. /'rl/rluft ;{ (^. H. 1). -'l."» ; A'-- SIkiiiI'i'/ V. ilo'iii-v, !l l';. ('. I, .1. •.'(•.■»). A ii(%'i>tiiit)li' ju'dinissorv not ytit diii' {Jurksoii v. Cti.s.siih/, '2 Out. Wl ; /'//"' ^- A';/(/(", II Ir. C. i.. I!. 4(»). A Ic^iicy ill tlio liaiitl.s of tin executor unless there lias Ihtii suuli an ae(!ount statiil l>v tlie executor as would entitle the dehtor to sue [MrDoWiill V. J/(jll'l.' I'r. U. '-'»>.")). A deht due hy the gainislu'c to the judgment dehtor as exeiUitor is not garnishahle [Miir'o"'/;i"« v. /liiwnnni, I ('hy. L'h. 17'-'). A deht, l/iijiu jidi- assigned hefore the judgment is not attachahle (IlirM'/i v. Ciiiitis, IS ('. r>. ~'}~) ; nor a deht so assigned hefore the attaching order ( Wi.ic v. liirhuishiin', 'J9 L. .1. Iv\. *J4(t) even though tlie garnishee had no notice of the assignment (Pirk I'r. K. 2:^1 ; 'i'Jil'<, 11 ^}. 1>. 1). -7; see also iSV» («/'// v. Sdiiiliij,! I'll. 1). r)8'.»). Tile allowance of a juror is not attachahle in the h.uids of the Coniity Treasurer (/V//W/'.s- v. Austin, ,S ('. I.. T. \\\\\\. Wages or salary of servants iS:c., to the extent of ^'2'). aie not at- tachahle under l>. S. <). c. ;")(), s. 'MS. The salary of the secretary of a Co.. amounting t(» t^'JOO payahlo .luartcrly was held not within the nieanimiof asimilar imju'rial protecting Act {(ronliiuv. Ji-iniiniis, 9 Q. B. D. 45). A deht which is attachahle does not cease to he so hecause the (k'htor has hrought an action to recover it ; and the giving of a ciic(|uc hy the garnishee to the dehtor, |)ayment of which was sto|)})e(l on service of the order nisi, was held not to prevent the dclit from hcing attached (Vulitn v. JlaJr, li Q. B. D. .'571). There is no power to order or perm'!, a suggestion to he entered of the death of a garnishee, so as to get execution against his repre- sentative ( A'c W(inl V. y^itiici, ti Pr. li. :\'2'.i). An executor or admin- istrator of a judgment creditor who has not made himself a party to the judgment cannot proceed under this lliilo without making himself a party to the record {Biiijuitnl v. SinniKois, 5 E. & l>. 59). The creditor must he one who is entitled to enforce immediate pay- ment. Thei'efore the holder of a hond of a corporation containing a condition that all hondholders should he paid /xiri pan.su, was held not to he such a creditor, since an attachment would have given him priority over other bondholdera (Kennett v. W*i>it minuter Iiiijjrove- mint (Jommissioners, 11 Jsxch. o49). 479 Rale 370. fir :' i i ill) ' 480 ONTARIO JUDICATUHK ACT, 1881. Rules ' ^'•' •'"'lyf' li'T.s no power to <^o into vhe state f)f the aonomits 370-371- l^ctwoon the garnishee aiul the jmlgiiicnt creditor, or to aHow tlie former to (hduct any amount due to liim from tlie Latter, hut must order exceutioii to i.ssue for the' wliole amount due from tlie judg- ment dehtor to the ju. B. 1). 28). He may, however, go into t\u'. state of aeecnuits hetween the judgment dehtor and the garnishee, and give effect to any set-oft' f>r cross debt arising Itefore (ih. ; see Niithitn V. r/fYcf, f) Taunt 558). but not after ( 7 "/^/^ v. Jones, h. Ji. IQ Q. B. 591) the date of the order of attachment. A garnisliee order cannot he made attaching a debt due from a partnershij) lirm described bj' its iiartnership i.am^ ( ]Vn'k v.JoiiCfi, L. I!. 10 Q. 13. r)91), tlioiigh a set-ut}" existing at that date will avail {Sampson v. Sfctton and Beer Ii(tUwai/ (Jumptiny, L. 11. 10 Q. B. '28). In Fitzpdirick v. ]Varr/nii, 13 L. R. Jr. '2, two defendants, S. and W., each had an order against the plaintiff for costs. S. was in- debted to tlio plaintiff for rent. W.'s costs were first taxed, and hi; ol)tained an order again.st S., attaching the rent due by S. to the plaintifl'. When an or(icr to ])ay over was applied for, S.'s costs had l)cen taxed, but it was held tliat the rent couhl not bo s;!t-olf against them as the order nlni had attached it, and S. had no claim until his costs were taxed. liut see Jie Sato v. Ilahhitrd, 8 I'r. li. 44n. Where there are several attaeliing order.s, tlie creditors raidc in the order in which tlieir attaching orders are served (Talc v. The Corporation of Toronto, 3 I'r. R. 181 ; Swcetnam v. Lemon, 13 C. V. 534 ; see also Sa.laman v. Donovan, 10 Ir. C L. R. App. xiii.) Personal service is not indispensable if tlie service comes to the garui.-shee's knowledge ( Ward v. Vance, 9 IJ. tJ. L. .1. 2! , 24i). Tlie effect of the word "bind" has often undergone iliseussion, and under the earlier English Bankruptcy Act the assignee was entitled and not tlie attaching creditor if bankru|)tey intervened before actual pavment under an order to j) ly over ( Holmes v. TiUton, 5 E. & B. 80 ; tamer v. Joinn, I H. & N". S78 ; TUhnnj v. lirowt), 20 L. 1. Q, B. 4t); Ry'ands v. lieardon, 8 E. R. Ir. 1), but if the garnishee was eouipelled to pay under threat of execution after notice of the bankruptcy, he wis discharged as again>t tlie assignee (Wood V. Dunn, Ij. VI. 2 t^. B. 73); He was bouuil, however, to set up the bankruptcy if he had notice of it bjf. S. O. c. 50, s. 310. riiis section does not render it obligatory on the Court or Judge to direct an issue. It' the n)atter is clear upon tiie aliidavits, the Court may refuse an issue {Wiic v. Birkcnuliaii:, 2!) L. J. Kx. liJO). On the otiier hand, exeeutinn may be ordtired if the garnishee does not satisfy the Judge that lie lias njal ground for' disputing liis liability for the debt Re Sain v. Uuhlntril, 8 I'r. IJ 1!."); y'lirnidu V. lioo'lc, 4 C. H. \. 8. 4.'U ; and is acting /«wu/ fiJi' in making the dispute (in.se v. Birlcoishow, '1\) L. J. Ex. '-MO). Where an action is [lending against the gainishee at flu: suit of the judgment debtor, auu there isudeolhisioii hotween th(^m. the( 'ourt will not grant an i.s^ue [llh-lMrilsoti v. (Ircurry, it) \V. K, 4;")). The CJoiirt will, uules.-i quite satislied that tlie debt is not liiible to attachment, allow the judgiuiMit creditor to have an is^uie witli the garnishee (Sci/iii.DUr v. T/tc ('i)r/)oriifi'»i 0/ lirectin, '_".( 1. J. I'lx. '243i. if tlie garnisiiee tlisputes his liability, ami tiie judg- • meiit creditor declines to p •oci.'cd ti try tiie question, the garnisiiee is entitled to have the att idling order discharged witli costs ( H'intle V. U'illianus, 3 H. & X. l.'8S). In in/.sou V. iJiuiilds, W. N. IST"). '2:i2, Qnain, J., ordered the liai)ility to be tried by means of a sp.'cial ease; and where tlie ipies- tion is one of law, this seems the most convenient course. An order for cross-examination of the garnishee was refuseil in Storcr V. SinDnonx, W. N. ISJti, 40, on the ground that the English Rule correspouding with l!ule 'JSn, sn/ira, was not intended to apply to such a case; but i/inere, in the Ontario Courts. 9. Where in proceeding to obtain an attachment of on debts il is suggested by the garnishee that the debt sought to be attached beK)ng.s to some third person, or that any third person has a lien or charge upon it, the Court (jr Judge ma)- order such tliir i person to appear and state the nature and particulars of his claim upon such debt. (R. Sup. C, 1875, Order 45, R.6; Comp. R. S. O., c. 50, s. 313.) ATTACHMKNT OF DEBTS. This Rule is the aaiiu; as the KiiLjlish Rule referred to, and cor- resimiuls in sub.stanoe witli sec. 3Ki of R. S. O., c. 50. A suggestion that the money attached is tnit^t money and not he- longing to the judgment debtor, should be listened to, and up^jn re;i:^oiiable suspicion of sucli a fact, tiie Judge has power (even thciiigh no .-suggestion is niado that the money belongs to some third person) to direct an i.ssue to iletermine whether or /lot the money i.s ti'iist money ; and any person who has a claim to the money has liirii.t Mmidi to p )int out the farts to the Judg(^ (Huhert.i v. Dralh, 8 Q. IS. D. .31 !> : 10 \V. R. 76 . Tiie judgment debtor may appear to iiiforni the Court of any such material ia,ct {Lovtili/ v. WhU<;, 12 L. K. Ir. 381). 483 Rales 3/4-376 'm 1 i 1 ■ 375 10. .'\fter hearin;:^ the allc^ation.s of such third per- pnr.rdings son under such order, and of any other person whom ^'jl ^j,';r,i'*""* by the s;ime or any subsequent order the Court or a pir-uns. Judge may order to appear, or in case of sucli third person not api)earinL;" wlien orden^d, the Court or Judge may order execution to issue to levy the amount due from such garnishee, or may order any issue or ques- tion to be tried or determined according to the pre- ceding Rules of this Order, and may bar the claim of such third person, or may make such other order as such Court or Judge shall think fit, upon such terms, in all cases, v\N'th respect to the lien or charge (if any) of such third person, and .o costs, as the Court or Judge shall think just and reasonable. (R. Sup. C, 1875, Order 45, R. 7 ; Comp. R. S. O., c. 50, s. 313, suh-s. 2). S.une as the English Rule, and corrosjxinds in yubst;inee Avith sec. .Shi. snb-s. -J of R. .S. O., 0. 50. See MilrlwU v. Lee, L. \X. '1 Q. b. '.'■)!). The judgment of tin^ -Judge summarily is final, if the parties have agreed to liis (h'ciding the (piestion of summarily (Eade v. IKt/t-sr/-, 47 I.. J. Q. U. 584). " 370 1 1. Payment made by or execution levied upon the,;,,,.,,,^,,^^ garnishee under any such proceeding as aforesaid 'i'«':ii"i,'ed shall be a valid dis'^hargc to liim as against the judg- ment debtor, to tJK amount paid or levied, although such pru'crd/rii/ may be set aside or the judgment re- versed. (1\. Sup. C. 1875, Order 45, R. 8 ; Comp. R. S. ()., c. 50, s. 317.J Rulo 5()() snb.^tituted "proceeding" for "proceedings" the word by a clerical error in this Rule as originally enacted. Tile Rule thus amended is identical with the Knglish Rule re- ferr.d to, anil corresponds in substance with R. S. *.)., 0. 50, s. 317. Til- men; is-'ue of an attaching order or order to pay over in no diilKiice to an action bv the judgment debtor (/>oc/;h;«u(^ v. Xaih, 18 C. H. 530 ; Si/kes v. Brockvilk and Ottawa liij. Co., 22 Q. B. 459 ; fi' nr f : m: i ! 1 1.1 I! I SI 377 AUilclUllrll book ti) br kept by p roper officer. 484 ONTARIO JUDIOATURR ACT, 18(Sl. Rules filpvim v. Madden, 11 C. P. 195) Payment td the jndgment 376-379 cTeditur aftor an attaching (irdtr served, hut heforc an order to }pay over, is not a discharge, and the garni^sllee is liaMe to pay again to the judgment de'itor ('runier v Jonci, I H. & N. 87.S ; Clark v Clark, 8U. C. L. J. 107 ; McOhims v. YorkriUc, 2! Q. B. 1G3, 171)". I'lyment into Court discharges tlie garnisliee {('lark v. ('lark and ik'ile .S7-) and the jmlgment ereilitor will he entitled to the fund notwithstanding the subsequent execution of a composition deed (Culvc.rhoum v. Wkkens, I., i! 3 ( !. l\ 'JKi")). As to the practice wliere orders are made in respect of tlio same debt in dilTerent Counties, see Vlrtoria Mvlital bis. Co. v. liHlmiic, 1 Out. A pp. ms. I 12. There .shall be kc[jt by the proper officer a debt attachment book, and in .such book entries shall be made of the attachment and proceedings thereon, ".ith names, dates, and statements , and the present Rule has been duly kept in the Q B. ofiicc ; but since ISGli only on two occasions have [)ersons required any entries to be made in it. 13. The costs of any apj^lication for an attachment of debts, and of any proceeding's arising; from oi- inci- dental to such application [including' the examination of the debtor] shall be in the discretion of the Court or a Juds^e. (R. Sup. C, 1875, Order 45, R. 10; Comp. R. S. O., c. 50, s. 321.) This is identical with the English Itule, and is the same in sub- stance as Ik. S. (»., c. iJO, s. '.Vl\, except the word.s in brackets which are not in the Knglish Kule or the Statute. \\ ithout them it was held in G'lntij v. liich, 7 Pr. R. 31S>. that an order for the payment of the costs of the debtor'.s examination could not be made on an application for that purpose, though it might p« rhaps he made by way of punishment, on an application to commit. 378 Cost of applit'.iiliiiii. 379 Writ to re- COVlT |) of 11. S. (). c. 51 is as follows : "36. TJp.)n judciment for recovery of possession and costs there may he either one writ or separate writs of execution for the reco- very of possession and lor tlie costs at the election of the plaintiff." 485 Rnles 379-381. 380 2. Wliere by any judii^inont any person therein writmay named is directed to deliver up possession of any |^|''y^'J|]^^^|^ lands to some other person [on, or at any specified time after hein^ served with the judi^ment] the per- son pnxsecutiny^ such judgment shall, without any order for that purpose, be entitled to sue out a writ of possession on filing an affidavit shewing due service of such judgment and that the same has not been obeyed. (R. Sup. C, 1875, ( )rder 48, R. 2.) Identical witii the Knglish l!ule, except the words in brackets which are not in tlic Kn.clish Rule, but seem implied ther.iin. In Chitty's Forms (l'_'tli ed) p. ^^.)^i note, it is saiil that the affi- davit is only necessary in i!ases within the words of the Kule, viz., where the judgment directs the defendant "to deliver up possession." The judgment on an award is in this form and judgments in the Chancery I )ivi.sion arc generally so drawn. In the other Divisions the form is tliat the plaintill' do recover, &c. (See Forms 149. 151 in App. I). The alfidavit in support of a writ of assiat.ance needed ordy show that the order was not complied with within the time limited, and not an existing iion compliance ( Wfh.sty.r v. Taylor, 18 Jur. 8G9). 3. A writ of possession shall have the effect of a roffectof writ of assistance as well as of a writ of hadere facioii '^^'^*- possesffionein. Not in the I5nglish llules, and makes clear what is also clear by decision in England, that this writ supersedes the old Chancery writ of assistance {Hall v. JIall, 47 li. J. ( 'hy. 680). Ghy. (ieu. Order 21)4, is therefore ol)S(dete. Where a plaintiff has been put in possession under a writ of pos- session and a defendant soon after regains possession after the return of the writ executed, the plaintiff', on motion, is entitled to an order for a new writ of possession (Proctor v. WvlUr, 3 C. L. T. 551) ; see Starpouh' V. Wiilah, 6 L. R. Ir. 444. For form of writ of possession, see Form 178 in Appendix (J). The chief difference between a writ of aasiatance and a writ of ' i '!(''•■" u m : 1 / ^ ! 486 ONTAKIO JUDICATURE ACT, lH8l. Rules habere facias possessionem is, that the former instructs the sherifT to 381, 332. "'lofeml and keep" the plaintiff "and his assigns in peaceable and quiet possession when and as often as any interruption may or shall be given or offered to thera or any of them" jsee Daniell's Forms 98lij ; thus it is presumed, rendering unnecessary applications for a new writ where a defendant wrongfully resumes possession after being (ijected by the sheriff (see Doe d. Peck v. Roe, '1 U. ('. Q. H. 27 ; Edwards v. Bennett, 5 Pr. R. Itil ; McDermott v. McDerniott, 4 Pr. II. 25-2). () R DK II X L I II. VVUIT OF DELIVERY {CHATTELS). 382 HowissiiMi A writ for delivery of any property other than land •udeufoicd^j. f^Qj-j^^y jjj-^y ]^Q issued and enforced in the manner heretofore in use in actions of iLiititLc in the Superior C'mrts of Common Law. (i< Sup. C. 1875, Order 49.) Indentical witli the English Rule. Tlie writs of execution atConimon l^aw in actions of definm- were tht writ of disO-i,'>ij. 806). It is doubtful whether an orilei for the writ is necessary {Ivory v. Cruickshank, W. 2>. 1875, 249). CKANGB OF PARTIES BY DEATH, ETC. 487 Rale 383. 383 C) R D E 11 X L I V . CBANfiE OF PAUTIES BY DKATH, &c. (Comp. II. S. (). c. 50, 88. •228-'24'2 ; (i. O. Chy., Nos. 337-341.) I An action shall not become abated by rea.son of ^..tj)^,,,! the inarria;^c, death or bankruptcy of any of the p,,\'!,''"/I;f^' parties, if the cause of action survive or continue, nurnage and siiall not become defective by the assignment, creation or devolution of any estate or title piiulenif. htc. (R. Sup. C, iuimon Law Courts and in the (Jourt of ('liancery Ab.itrmcnt tile oltl and iiieoiivi'iiieiit methods of making good a suit whieli has 'i','''V.,:'r,'*l"' become defeetive hy reason of death or otherwise wen: long sinei; hi,.,- pr^,,. su|)er.seiluii by siin[tle, inexpensive nietliods of jirocedure, iJut the tin'. piDcedure was dill'erent in the several (Jourts. In the Ooiiinum Law Courts of thi.s Province the practice was governed hy \l. S. (>. c. ;")(), s *2'28, ct .sw/. Under these enact- ments tile ))roeedure varied a little ac(M)r ling to the nature of the defect whieli had occurred and the stage at which it occurred. In the case of death, the [diintilf was em|)owrcd to enter a suggistion of the death, and procei;d with the action in tiie name of or ;igainst the jtroper parties ; and the truth of tiiat simgestion niigiit li.ive Iicii tr.iverseil and tried. If the plaintitt' omitted to enter the necess.iry siiggi'stion, the defendant miglit hy summons require him to do so, and in default might do so himself. In ("hanecry the matter wa-^ giv^rned in tliis Province hy the Chy Orders nuuihered (unn .S37 to 3r)l. The present Order adopts in suhstancj the < 'hauceiy procedure. There is nothing in the al)ove Itule to alter the existing law as to Uu'lcrpre- wliat causes of action do .and wh it do not survivi ; thus where the *'""'■ *'"'"^- cause of action or the mteici-t of the party i.s teiiiiinati .i hy death, etc., the action is at m\ end ( 7'tu.'/(■y•t(•^■•s v. Gram. 4 C. P 1). -K) ; Kirk V. To'lil, '21 Ch. I). 4S4 ; AshU-i'i v. 'laiihr, U) < 'h. l.>. 7l)d ; 27 W. R., 'I'lS). Nor i.s there anything to preservi' to any per.son a rii^ht of action whieli by the ordinary rules of law has [).i.ssed from him. Thus, on the bankruptcy of a plaintilf, where the right of action is 011c winch passes to the trustee, the acti n cannot be carried on hy the bankrupt, Imt oiilv by the trustee iJitrknon v. Xorlli-Lit-itfrn Ry. Co r» C!h. I). 844; Warder v. Saunder.-<, 10 Q. B. I). 114; see also Eiiuhn v. Carlu, 17 Cii. D. KJil) If, in such a case, there are twii trustees, and one refuses to ;.'o on, thi^ otiier may do .so, and make his co-trustee a defendant [Jarkson v. North Eoderii Jii/., niij>.) If the trustee elects not to ])rocei'), and rprjuires to l)e continued undt'r thesubsefjuent Uules by the proper parties ( ]Valker\. B/iicki)ior(',.-iiip.) On the bankruptcy of plaintiff', the dcfemlant, wishing to have the action dismissed for want of prosecution, was reipiired to give notice to the trustee ( Wrhjfd v. Siuindon /'i/. Co., 4 < 'h 1). I64 ; see also /,'>' A/kliis, 1 Ch. L). 82; Canuron v. Eau-r, (> !*r. K. 117). In an action by the indorser of a bill of exchange against tiiu (Ir.iwer who had become bankrupt, and suiicred judgment by de- fault, tlic tiustcc applitid for leave to defend, conipianiing that judgment had been siuii)jted. Quain. J., said, " ft is unly a ([Uestioii of terms. I will order the judgment to be set aside on payment of costs, and tliat tiie trustee be at lil)erty to tlefend in the name of the dr(ficipp order (Mattkems v. Me.arti, 21 Gr. fl9), but not parties who acquired their interest before action (McKmizie v. McDuunell, 15 (ir. 442). llule 103 has been also apjjlied to add parties for example, in Kino V, Jiudkin, (J Cb. I). 16f>, to add a person at his own request tf) whom an assignment pendente lite had been made by defendant ; and in Searn v. Lawson, l(i Ch. D. 121, on defendant's motion to add a person to whtmi the plaintiff had assigned his in- tere.st. In such a case as the last, the action may be stayed till security is given or the suit continued in the name of the assignee {Swnn v. Adninn, 7 Pr. U. 147; see a,\ao A nhley v. Taylor, 10 Ch. D. 768). I CHANGE OF PAIITIES BY DKATH, ETC. Where a party to a foreclosure action had assigned his interest after decree, the assignee was made a party after order for fore- closure altsohite (('a?/i;>/jr// v. Ilnlii/aiitl, 7 eh. I). IfiC)) ; hut in A he/I V. Farr, 9 I'r, R. 504, it was held that persons to whom defendants had assigned pcndt'iilc life, could not hu addeil after judgnu;nt and declared houml hy it, where tiiey claimed to he entitled iu\) between the con- tinuinii; parties to the action and such new party, may be obtained on jTocipc, (a) upon an allegation of such chancre, or transmission of interest or liabihty, or of such person interested having come into existence. (Comp. R. Sup. C, 1875, Order 50, R. 4; R. S. O. c. 38,8.40; Imp. Act 15 and 16 Vict., c. 86, s. 52 ; G. 0. Chy., No. 337). («) The I'Inglish I'ule iias the words " c.c pn- Ic," inhlad of the words "on pnecipe ; " it i.-* otherwise the same. This Rule api)lies wlna'e tlie cause of action survives or eontinuiN to some person not alrea. "dS ; I'lilUipn v. Humfray, '24 Ch. D. 4;U) ; ' Uaunlion Pruvklcnt v t'onir//, 4 l)nt. 6'2,S). Hut where the defendant in an actu)n of tort died before trial and at a date later tlian six months after the commencement of the action, and had not got any bcnelit by the act complained of, but liad only injured the plaintiff, it'was held that theactibn did not survive, and coulil not be continued against his personal rejtresentatives {Kirk v. Tudd, -21 Ch. D. 484 ; s.je also I'hillip.s v. IJonifrai/, 24 Ch. l>. 439; Vkapman v. Day, .SI W. K. 7(>7 ; 48 L. T. 91)7 ; 49 L. T. 436). In an action on a promissory note, where the defendant became bankrupt it was held that the trustee should not be added, as the 1 i illllffl • ! ■ 1 ,;) ? fr'i; M:* l;i 490 ONTARIO JUIJICIATUKE ACT. 1881. i; I i t Eule 385 jiKl'i'iiciit woulil imt bu for recovery hut would only amount to a di;cl;iiiitioii of ;i liglit to provo which ouj^lit to ho made in tliu hank- ruptoy i)roLueiliiii,'a {Jinrtcr v. Deltfii.c, 7 Q. !• 1^- 41.S). Wiic;ro a petitioniir h;iil liicd after an order liirectinj^ inquiries, it Wiis ordered tliiit thi- [)ctition he o.irried on hy the exooiitorH (AV AlkiiiK L'shitr, 1 Ch. I>. 3-'). See note to 8 90, of the Act. If an action heconios defectivi' hy the hirth, since ita er>nniu!ni;e- ment, of an inliint who is a ufceasary party thereto, and |)roceedinj.'s since its hirth iiave heen taken in the aetion, the coinmon ordor under this Itule will not render such pioeeeding binding on tlie infant. A special form of order to meet this ease will be found m i^eton 4th ed. l.rJT, l-'orm A and Pt'/rr v /'I'tcr, \V. N. 1HS4, 4"), (1(» ; 32 V\ . U. 40!), T)!.") ; 50 !.. T. \Hh. '('here wer<' under tli<> old practice, and proliably are still, cases in which tlioiigh the cause of action dues not survive, proeeedinj^'s having reached a certain sta. (ioO). Where partners have recovered a judgment, and one of them dies the action survives, so that the surviving partner may issue execu- tion [JJiiriifi V. Aiidri'ira, :i!S Sol. Jour. 4ll) Where it bfci>nies necessary to enforci- a judgment against persons who afterwards aiHjuired a title an aetinn must i)e brought for the pnrpo.se (/! C. L. J . (iO) ; application in Court is not necessary [('inni'. v. Lu/liis, '24 \V. R., {VA ; lioffi'ij v. Miller, 11)1(1., I0i>; Diie'r v. Painter, \V. iS., Ih8l, Kto). On the deatli of an accounting party the < 'oiirt may on an''.ryy((/'^- motion order the action to (;ontiiiue between continuing parties and the e.teciitor ot deceased notwithstanding that the executor is resident out of the jurisdiction (Jaine.-idir v. .Mursluill, 40 L. T. 48lt ; but See Morrire v Smart, I'.i L. 'I', ilour ol'S). In Waliit V. Sniilh, 4(1 L. 1 . 47.'i ; ;>l L. J. Chy. r)77, a judgment creditor who had obtained an order attaching a judgment debt, was held entitled to be added uiidev this Kule as eo-plaintiti with his debtor 111 the action in which the debtor had obtained the judgment, and to have notice of all proceedings taken in that suit to recover the debt. This decision jiroceeded to a great extent upon the terms of Eng. Ord. TiO, i\. -, which has not been adopted in the Ontario Act. I his lliile is not mapplicable to the case where there is a transmis- sion of interest by reason of a subsequent incumbrancer having re- deemed the plaintiff in a foreclosure suit. In such ease, however, a new account may jirobably be taken witluiut order under Ohy. (r. O. 452. The costs of an order under this llule were allowed \n(Mitchell V. Barrett, A (.). L. T. -ma. Where a side plaintifi' iu an administration action died, an order continue to the action was granted to a person who had been served with notice of the judgment and had obtained liberty to attend the proceedings, he being held to be iu the same position as a party to CIIANCJK OK PARTIES HV DKAI'H, BTC. 491 the action {/{itrntdll V Fmron, '24 (']\. \) \'H\). The personal nprc- Rules Bcntative of tlu; pliiintitl" iniglit (il>t;iiii lui onlur to coiitimn; tliu pro- 335^ 38(;. cecv lings (/>//fr V, /'auitcr, \V. N. IHSl, 1(15). Where iiii iippcal to the Court of Appeal heeiiines (U'f«<;tive by death, transmission of int'-rest, or otlier cause, ]>r Ch. D. 'I'^i) ; 4 Ajip. ('a. IWW). As to the case of eousolidated actions, see Rf WorfJci/, 4 Ch, I). 180. The Hides under this <-)rder ajiply to petitions as well as actions {lie Atkinx, I Ch. D. 8'J ; AV iJiiiin-'or, W. N. 1878, I9J)). Where, after judgment, it is merely desired to issue execution, and rights or lial)ilities havt- become ehangiul by death or other- wise, the jierson seeking to issue execution may proceed under Utile 35(1, hii'ra. Where the suit abates by the death of a ) the Court acting under 1.") and l(i V c. .")(;, s. 44, (see Chy. (I. (). oti, and 1!. S. (). c. 4J», s. 9), api»ointed a jiersoii t<) iHijjresent tlie estate of a deceased plaintilF, who dieil insolvent ami intestate, ^o that the defendant mi_'ht have somebody against whom to move to have the action dismissed for want of prosecution. (See Oahaaiu Cahiinl (.!(>. v. Nutr, in note to Rule I(i4). 4. An order so obtained .shall, unlcs.s the Court or 386 Service of Judt;c .shall otherwi.se direct, be served upon the con- order, tiiiuing party or parties to the action or tiieir solici- tors, and also upon each such new party (unless the person makini; the apj)lication be himself the only new party), and tiie order shall from the time of such service, subject nevertheless to the next five following Rules, be binding;" upon the persons served therewith. (a) (Comp I-l Sup. C 1875, Order 50, R. 5 ; G. O. Chy., No. 33S.) li I ^ m ■ f 492 ONTARIO J(TnU!ATTIHK ACT, 1H81. Rules (<^) The P^iiRliah FUilo imnies two instoad of fivo following Ilulcs, 386-339- tli^isc two hoinj,' tlie ItulcH oorresjxtinling with .187 ninl 3H!(, hii'nt ; thti otiior thn.'n horn following lliiles are not taktii from the Knglisii RuloH. The iMigliHh Uulo has the following additional words at the end of the llule : " and every [jorson MiTvod therewith wlio i^. not already a party to the aetion, .shall he hoiiml to enter an appiaranif thereto within the same time and in the same manner as if he had lieen served with a writ of summons." These words appear to add iiothin;,' to the effect of the llule, and were prohahiy omitted for tliat reason. 387 Ari.iiration 5- VVhcrc any person who is under no disability, or *'^j'^|f'^''""«'' under no disability other than coverture, or beint; under any disability other than coverture, has a ^'uardian aJ H'ciii in the action, shall be served with such order, such person ni;i\' appl)- to the Court or a Judi^e to discharijc or vary such order at any time v.'ithin twelve days from the service thereof. (R. Sup. C, 1875, Order 50, R. 6 ; G. O. Chy.. No. 339.) Same as the F'-nglish llule. This ivulo is very similar in its terms to < 'hy. (J. < >. 3'VJ under which it was hehl to be not sutfieient to give notice of the motion to tlischarge within the time jilloweil, hut tho motion hail to he made returnable within that time {//iirrii v. J///e?-.v, 1(> (ir. 117 ; Jarkmni V. Ounlincr, '2 Chy. (!h. .'{8;") ; 1;") (ir. -ti.") \' Mcllroii v. Ifawkt, 'A Cliy. Ch. ()G ; see Fox v Wnllix, '1 < '. l*. I). 45). The time may be extended (see Smith v. CI nun, 2 Chy. (!h. 2.S0 and Kule 46'-') The motion was formerly made to tlie ('ourt and set down for the proper day, but probably may under the present Uule be made in (.'hambers. 388 Indorse- ment oil order. 6. Upon every copy of such order served, there shall be indorsed a memorandum in the form or to the effect set forth in Form 20 in Appendix (B) heretu. {See G. O. Chy., No. 341.; No form is given in the I'.nglish Rules. Tln^ form of indorse- ment in the .\ppendix No. 20 is the f(dlowing : Appx. Form "Take notice, that if you desire to discharge this order you must **• S'Pply t'J the Court for that pur])ose within twelve dayi> after the service hereof upon you. The original statement of claim in this cause is filed in the^ otHce of the at (n)td if fhr scrnicr is after a jmbjuient dircctiiuj a rpferencc to a MaMcr or other officer, add) ami the reference under the judgment in this matter is being pro- secuted in the office of the at ." Application 7- Where any person bein^- under any disability order^'by "^^ Other than coverture, and not havin<^ had a guardian persona ad liUvi appointed in the action, is served with any under dis- i j i I i ^ . •biiity. such order, such person may apply to the Court or a Judge to discharge or vary such order, at any time TIIANSFKUS AND (CONSOLIDATION. 49;j within twelve days from the appointment of a cjjuar- Rales chan (1(1 liiiin for such party, and until such period of 339-392 twelve days shall have exjjired" such order shall have no force or effect as a;_,ainst such last mentioned per- son. (K. Sup. C , 1S75, < irdcr 50. R. 7 ; (i. O. Chy., No. 340- ) Siiino as tlif l'iiij,'lish Uul(!. 8. Where the order is served out of Ontario, the A,,,,ii,.;,ij,m party .served is to have the same time to apply to d is- *•;"•"■'';"■«« r J 1 r I I i- J (imIii when charue the onler, as a defendant has to appe.u' to as.iv.d cut writ of summons so served ; but an ap[)lication may be made f()r shortening the time. (Comp. G. O. ('hy., No. 342.) Ni)t taken fi-Din any Kiigliah Uulo. 391 9. Where the Court or a Judge authorizes publica- Aniiiratiun tion instead of service, the Court or Judge is at the '";■"'"''' same tiii.-e to ai)point such t* if for applymg to dis-i'i« s.ivico charge the order as seems proper. (Comp. C U. ti.m. Chy.\ No. 343.) Not taken from any English Itulo. ORDKR X LV. TRANSFGUS AND CONSOLIDATION OF ACTIONS. 392 I. Actions may be transferred from one Division of^.^^„^fy^ ^ the High Court to another Division by order of theorUer. Presidents of such Divisions. {Si'.e R. Sup. C, Order 51, R. 2.) The I'iiiglish Rule referred to givea this authority to the Lord Chancellor, with the consent of the Presiilents of the Divisions from ami to which the transfer is made. In England the order is made by the Chancellor on written consent of all parties, or on notice (Hamphrcijs v. Edwards, 45 L. J. Chy. 112; W N. 1875, 208; 1 Oh. D. 41 ). It applies to transfer of petitions, though actions alone are mentioned in the Rule (Re lioyiVa Trusts, 1 Ch. D. 12). See also Cannot v. Monjan, 1 Ch. D. I ; IVarne v. Dell, W. N. 1875, 251) ; Johnson v. Atqfatt, ib., 21 ; Anon. ib. 22 ; Hillman v. Afayhew, 1 Ex. D. 132 ; IloUowan v. York, 2 Ex. 1). 333 ; Oen. Steam Nav. Co. V. London [ HCliullil. SCO. 45 of the Act). I'Ik; niiicliinery for disposing of all sorts of actions is now hccoiniiig, and 's supposod t'> \>u, tlie same in all tlic Divisions, so that transfers to the ('lianct-ry Division for the takin" of accoukits an; not made as tlioy an? in I'jigland (see /^(filil v. Pahsidn, 31 W. I!. 8(f_> ; 4S I., r. !)4i)). This Rule also afFecits tlie former powers of transfer as it has been hcdd to deprive tile M 'ster in ' 'liamhers of tiic jurisdiction, and jirn- babiy rest it in the Presidents of Divisions ah)ne (rum I/il/iard v. T/iurtton, 18 C. L. J. 'SO ; '2 (J. I.. T. 2(JI and 'JSo, and sec. 'H] of the Act). 2. The Presidents of the Queen's Bench, Chancery and Common Pleas Divisions sh.ill, from time to time, as occ.ision may require, meet to;_^etlier and examine the hst of motions, rules and other matters set do' ,i for argument in each Divisional Court of the Hi^h Court, and direct tlie transfer of sucli and so many of the said motions, rules and otlu-r matters from one Divisional Court to another as shall, as nearly as pc^s- sible in their judgment, ecjuali/e the amount of busi- ness to he done by the s.iid Cv)urts. (.SVr 41 Vict.,c. 8, s. 4, Ont ) This IJule (h)es not recjnire tlw. consent of the pai'ties or previous notice to them. 3. Where an order has been made for the adminis- tratitm of the assets of any testator or intestaie, a Jud^e of any Division sliall have i)o\ver, without any further consent, to ortler liie transfer to such Division of any action peiulin^" in any other Division by or against the executors or admim'strators of the testator or intestate whose assets are beini; so administered. (R. Su}). C, June, i.S;6, K. \H.) The {''iiiglish Hide applies also to tin: winding up of any (.'ompatiy under the Companiis' Act, KSli- and lM>l>, and conlitu^s to a Judge of tile Chaiicery l>ivisi'.r /Kirti- in Fii/i/ v. Fii'hl, \V. M. 1S77, '.*S, an! Ma.thacli \. AikIi'i-soii. •.'(> \V. iJ. l()l>. .s.calsoAV Artixtir Vi>li» |n.J; IhnnlmU v. C/i<',tl,u E. H. it il. 2V.i ; 2 Ciiitty's Archhold. p. I()>S."). ct fit-q., ed. 13). Hut the term consolidatum is more freciuently used in a dilTcrent Eense. Where actions art; brought by the same |)lainti)l ;tgaiM>>t dif- ferent (lefendants, but tluMpicstions in tlispute in ail are substantially tlie same, the ( 'ourt, if the defendants apply, will stay jirocecdinga in ;dl the actions excipt one, until that one action lias been deter- iniiicd, upon the teims that tlie various defendants agree to be liiiuad liy the e\ent of tiie actio', which proceeds. I iiis piacticc has liL'iii ajjplicd to the case of actions against the si'\cral unarts fit a ihbt l)y sijiarate instrun'.ents [Shdrp v. Lrt/il>ri. A. W. X\()]. S' where a nundier of actions against ditietent defendants maybe reduced to chisses, those of eacli class raising the same i|Uestions, the t'ourt may idlow one action of each class to proceed, and stay the rest (>''/•*■ v. rirhrs,/;//, '2: L. .1. Kx, r>). .\ third kind • f consolidation is where tlu're are cross actions bi?- twiru the same parties, arising tint of the .«am(> matti'r, and the Ciiurt stays one ilirecting the plaintiti in it to bring forwai'd his case liy way of defence, set-oH or (Minnter-elaim in the otiier ;iitioii. In aiu'h case the J)arty on whom is tiie onus of pi-oof is given tlie eon- duct of the i)rocee W, I!. n'A7 ; 4() b. T. .">1.S|. See notes to see. lb, sub-sec. b & 8 same groiuul as n lief, it will be W . I!. 44n. H'licre an action is ciimmenc'd that covers tin one already existing, together with soini' further stayed .as to the first part {.Morton v. (Jitnh, In Smith V. W/iir/ii'onl, '24 W, \\. 01)0 : ;.i,.arate actio. is bt'tween iliflcreiit parties relating to the same subject were consolidatt.'d. Where plaintill's broiiglit an action for the same cause of action as was set up by their., in a counter-claim in an action in another Division, it was held that though the case was not stri< tly within this Kiilc itccause the plaiutills hail not brought two actions, yet tiuTc is inherent jurisdiction in the Court to |)reveiit undue use of its process and the plaintiff's action was stayed till the counter-claim shuuld ho disposed of ( Tui/lor v. linulford, 9 Pr. II. :?.">()). All action for broach of an agreement and fraud in the Ex. I), and across action for specilic performance in the Cli. D. were onlert'd to be consolidated in the latter action {Uolnu's v. IJeri;i\i/, 2^) W. K. 8(1). An application to consolidate two actions by the same piaiutitf, one k I1 1\ I I .1 H -i i 1', ¥ 496 ONTARIO JUDICATURE ACT, 1881. Bale 395- f'"" nialicious prosecution imd the other for salary ;is a manager, was • lismissed by Quain, J,, with costd (1 < ^harl. Ch. (Ja. 127 ; GO L. T .l..ur., 8()). The application is usually inadc in Chainhers ; sec S/nith v Wluckcurd, 24 W. 11. 901), Cliitty Arch. 1087. The order, when made on the apiilication of the defendant, does nf>t re({uire the ])laintili's consent (lloUinijxtvurth v. lirodiirk, A \. & K. t)4()). It hinds the defendants in the actions which are stayed to ahide the event of the one which ])ioceeds ; hut it has he(;n held not to hind the jilaintiO' to do so ; an>i that, if the nsult of the (iist action is against him, he may proceed with aiidther {Jhii/li v. Anderson, 1 A. & 1^. ()■'<;") ; J>u>/1(' v. J)oi(iheriroo. 45!) ; see also llodson v. Jiichardson, 3 I'urr 1478). A like course was taken in Bennett v. Lord JJnri/, 5 ('. I', D. 339, where thirty-eight acticms had been brought, and, on the plaintiff's aj)plicati(Ui, the proceedings of tliirty-seven were stayeil until the trial of the thirty-eighth as a test action, though it was said that the incidents would or might vary in each ease, and there would he diii'erences of proof in each, but the gist of the charge was the Bame in all. The judgment in t. e tost action will not bind the parties in the other actions, unless the action has been tried out . I'J'J. provides liiat "every ♦'imiity and !)ivisioii ('oiiit sliail as regarils all causes of aetion witliin its juris- iliction for til. time being. ha\ e power to grant and sliaii giant in any proeeeling ht.'fore such Court siieli relief, redress, or rcnietiy, or oiiiiihinatiiin of remedies, either al>.>'.nlute or conditional, and shall in every such proceeding give such and the like effect to every ground of defeiiee nv c( 'inter elaiiM, ei|uital>K or legal (sul ji eL to tin; pro- vision next hereinafter contained), in as fi.ll ;iiid anijile i manner as ni'glit and ought to he done ill tli" like; case by tlie liigli * 'ourt of ■lustiee." Sii'oject to cert.iin specified exceptions, the County Ctuirta have jurisdiction. " 1. In all personal actions where the t or damages claimed do kov. Stnt. c. lint exceed the sum of S'JOI). ■«;i, s. lu. ■'-. In all I'.iiises and suits relating to debt, covenant and eon- .iinjs.iiction tract, to $\U{), wlu're tiie amount is liipiidated or asi;ertained liy the "r^-'i'imty act of the parties or l>y tiie signat'ire of the defemlant. Ci>urti». " ;i. To any anmunt oil bail-bonds given to a Shurilf in any ease ill a ('ounty ('ourt, \\ hatever may lie tiie |iiiialty ; and "1. On recognizance of bail tahen in a County ("ourt, whatever uiiiy be the amount recovered, or fur wliieh the bail there. 'i may be lul'.le. " f). In actions of replevin where the value of the goods or other (lev. 8 -.t. o. property or etFects distraineil, taken or detained, does not exceed the 5^- sum of S-OiK as prnvided in • V'/c lu'^lifin Act.' "6. in interpleader matters, as provided Ijy 'The '/j<{'A) (l>*. S. (>. c. 47, s. 06) ; and a minor may sue in a Division 47, 8. ■")«. < "ouit t(ir iuiy sum nfit exceeding .SlOO, due to hini tor wa:.'es, in the same manm^r as if lie were of full age " (K. S. U. c. 47, s. 08). In any of these cases, therefore, the County and Divisicjn Courts can give the same remedies as the High Court (Miflin v. Bauiiintc)-, 4 (.I'W. D. 4!)1). See alsc relieved wholly or jjartially from such liability, the C(jurt or a JudLje may make an order for the preservation or interim custody of the subject matter of tlie lititj^ation, or may order that the amount in dispute be brou;j;ht into Court or otlieiwisc secured. (R. Sup. C, i'S75. Order 52, R. i). Same as tlie lOnglish Rule. This provi.siKii gives iiiei'easiul pi>\vi'r to the ('i)iiit for p^e^(M•villg the riglits of tlie i)arties tininiufed, iluring the itemliiig of litiu'atioii, and an iiiteiloeutory order iiiaite iiUiler this Kule may in' eiilorccd by attaohniL'iit (//((/.•///;(.>,■((// \, ll.trhautit, W. N. 1877, '-K). In /titsxrll V. Dai-icx, W. N. I8S'<, l()i> ; l!> C. L. .1. 27:5, an action to recover arrears o action at whii:h an application may be made, see llule 4U0. I. a INTERIM PRESERVATION OF PROPERTY, ETC. 499 2. It shall be lawful for the Court or a Judge, on Rnlea the application of any party to an action to make ^^'' ^*^" any order for the sale, by any person or persons named f^^^^^ in such order and in such manner and on such terms l-erisiiabie as to the Court or Judge may seem desirable, of any**""*^*" goods, wares or merchandise which may be of a perish- able nature or likely from keeping, or which for any other just and sufficient reason it may be desirable to have sold at once. (R. Sup. C, 1875, Order, 52, R. 2). Same as the English Rule. The power given is no*/. An order may he made for the sale of a oha^^Lei whicli, for a " just and sutficient reason, it may he desirahh' to lave sold at once." Thus in lifirtholonifw v. Freemnti, ',i C I*. I). .SIG, the (!ourt onlered a horse to he sold, on the ground that it was eousuming its value in food, and there was no reason why it ' l>. T. 12, au order was made for tlie sale of hoiids as perishahle pioperty within the mean- ing of this llule (see that case m note to K ile ?,'1'1). Ill an action for an uniiaid balance on the sale of a horse, and for hreacli of warrant^' of another horse received in part payment, plaintiff applied for li;av<' to sell the horse so received in [y.ut pay- ment : Ilclil, hy (^uain. .1., that no order was necessary, and that tl\e liule wa> not a])plicahle [Anon., I ("harl. I 'h. Ca. 1"27 ; <><• \u T,, Joiirii. p 84). 398 3. It shall be lawful for the Court or a judge, upon oi'.i.Mforde- thc ai)i)lication of any party to an action, and upoii |,''l'|';,',''.','j,'[l''f such terms as may sccni just, to make any order for the i""."'''-y- detention, preservation, <>r inspection of any pri){)crty, beiiiLT the subject of such action ; ami for all or anv of i:"'ryon the piu'ijoses aforesaid to authori/.c any person or per- sons to enter ii[)on or into any land or I)uiltling in the possession of any [iarty to such action; ami for all or SaiJii.i.s. any of the purposes aforesaiil to authorize any samples to be taken, or an}' observation to be made or experi- ment to be tried, which n^ay seem necessar)' or ex[)e- dient for the pur[)ose of o!)tainin;;" full information or evidence. (Iv. .Sup. C, 1^75, Order 52, R. 3.) lili'iitical with the Hnglish Kule. The powers given hy this iJule are very mncii wider than the iiiLTi' power to allow in>p^ction given hv the C L. I'. Act, I!. S. (), c. ;■>!). s. his. Tile ( 'ourt of Chancery, under its similar iurisdiction, would not Similir grant an inspection on the aii])licatiou of the plaintill. unless satisfied j'l'",''.'',"','.'','" that he hatl a case to he tried at tht' hearing ; nor in any case unless Li,aJ„.ery. the inspection asked for was nectssary for the purpose of inal)ling the party ajiplying for it to prove his case ( /*i;/;/oW v. Aiiij'n A nwrkan Ti'l'yr.ipli Co , 19 L. T. 4G ; Batlcy v. Ki/iwck, L. II. li) E|>lii'.'itioii tiiiiK'i Kulih ONTARIO JUDICATURE ACT, 1881. Where the defemlant iu an action for obstruction of light and air, had not delivered his statement of defence, Archibald, J., refused an order for inspection until he had disclosed his defence (W. N., 187(5, 5:i). In a nuisance action, an application to inspect the defendant's works to ascertain how the nuisance was occasioned was refused, as proof of the nuisance could be obtained from external sources (Barlow V. liaili'ij, 18 W. H. 783 ; see also Flower v. Lloyd, \V. N. 187G, 169, '-'.'}d). Upon a prima J'arii- case of mineral tresj)a88 or encroachment by the defendant, or wliere the fact of trespass (which is dtnied) can only bo ascertaineil by inspection, and no injury will result to the defendant tlierefrom, an interlocutory order will be made for the inspection (»f iiis mine ; and the ordei" will, when necessary, extend to the removal of ol)structin to be made of Ids premises and macliincry, liy proper persons named on buliali ni the plaintiff (.SV^o/i 3i)l ). In an ai'tion to r^'cover jiwi'llery, tin defendant alleged tliat it belonged to a ttiird party, ami liiid been deposited l)y liim to secure a debt line to the deiendant. The ('ouit ordered it to \w given up to an othcer of the Court ( V-'la(i v. Urakam, 4(5 \,. ). C. I'. 41;")). On tiie aflidavit of plainlill'. stating that the property was rapidly being damaged, tin; ('oui't of Ajipeal appninted iiim receiver and manager, though no application fur this jHU'pose had been niaile, either to a I)ivisional ('ourt or a .luiige ( ////(/»' v. Wanlin, 1 lOx. U. SOU). The ( 'ouit has jurisdiction under tlii.- Ki;!e to gi'ant an iateiim injunction in a prcfper case, to rotraiu a defcmiant from ceasing to pump water out of a mine which the defendant was in possession of, and liad airreed to lease in order to prevent its destruction [Strvlliij rearMiH, lo Ch. D. Ii:<). An api)lic;iti(in, under this iJule is lh nerally made to the (Jourt as in jnoticins ff)r injunctions (see Hide ',\'J[) and EvijUhIi v. i'aiitbcrv^ll, W. N. I87r», "Joiii ; l)ut an order has been n)aile in ("iKunber.s (see Cooper v. luce iJoll Co., W. N. KsTO, '24). It should in general bo upon notice isee tht next Rule an! I inhershon v. GUI, \V N., bsT."), li.'il); but uhe'c ciieum.stanees I'cndeied it jiroper, on an u- purU ' applicatiiiii. an order to enter for tiie puipnse of mspei;tingand taking .samples was made {lle.iiiies.'« ij v. liiilnnnnii, '.Mi L. T, ')! ; \V. N., 1877, 14i, an order for tietention and preservation of piop, 'J."»0 ; /i/nuitt Dowlinii, lb., '!{)'! \ /fennesKcyv. liohii\(iiin/M\ !.. T. ;">! ; \V. N. 1877, Hand Taylor V. AV/.v'/-.s/('//, 'ich. I>. 302; ' ' H 's estnte, I ( 'li. D. '.'70; ////(A- v. Witrdcii, I Kx. D. .SOi), cases of receivers). .\ [ilaintifi" may move at any time after issue of tiie writ (AV Srridre V. Co , -.'J Sol. ,lour. , -.'iO), or even l)efore I T/toni^di- v. S/.-oinc'i, \j. R. 1(1 E(} l'J(), and notice of mrttion may be served witli tlie writ (Ca/ie.^ V. /ireivr, 24 W. li iOt. .See lifule 41 1. A defendant may move at any time before judgment (Sargant v. Rend, 1 Ch. D. fiO'i); and this Kule does not prevent an application ex parte by a ilefendant under .■^e<'. 17, sub-sec. 8 of tlie .\('t {Hick v. Lwkwmnl, W. X. 188.'^, 48). .Acquiescence or delay will generally prevent a plamtifT" from oi)- taining an interloentoi'v injunction ; but he is n^t lionnd to move till the hearing, anil I'.e'ay till then is not sueh ac(piiescence as will disentitle him then to relief ( />ac(V,v v. Mar.-ilntll. 4 L. I". .\. S. 10,')). The('(mrt in cases of urgency ami necessity may grant an injunc- tion or receiver before service of the writ of sunuiions, and on an vx parte application, as where it was alleged that trustees were on the eve of bankruptcj', a receiver was a](pointed {lie If's Entate, 1 Ch. 1). •27«))- Where notice has been given, an injunction shoidd not be granted ex parte even where fnan pressiire of business the motion cannot be brought on (Graham v. Camphell, 7 Ch. D. 490). The usual undertaking as to damages should be inserted in all interlocutory injunction orders (Graham v. Canipln//, xnp j ; and there is no exception in this respect in f.ivour of the Crown [Secretary for yVar v. Chnhb, \V. .\. 1880, 128 ; 48 L. T. 8M). (Jreat unexplained tlelay in making an application to enforct- an undertaking as to damages, was held to be a sutlicient answer to it, though the ai)plicant shewed a prima facie case yiCx. p. Hall, Re Wood, 2.3 Ch. D. 644. See also Smith, v.' Dai/, 31 W. R. 187). Where an iujun^'tion is afterwards dissolved as having been wrongly "1 'f ^ If ill ■| h: n .1 , ■ ■'!■; 1 III ' '1 I ^M- ? . . i' ) i i : £ 1 .1 ■ -SI ■■\\\^'\ } ''' 'T m i> ; 1 : j, M . I. 1 \ :; :■ [ i . i . : "•:t 1 ; ' 1' Mij : 'il i '.likU m I 602 Bnles 399-402 400 Ap|)li(!utii>ii uiKler Uulc I. 401 Writ (if iii.jiiiictioii abolihliui^l. 402 AiiKiiiiit, (iT liuii I'liiiiiii'il may In- |i.ii(l into Cciiiit ami |>i'(i)i>'riy dulivuruU II I > ONTARIO JUDICATURE ACT, 1881. grounded in law aiul >\ ithout any default or inisrepreHentation on the part of tlic pi >iutitf, the undertaking cannot be enforced (//>. per Jessel, M. It. 'Jl (Jh. D. 421). NN lu le an interim injunction is granted over the next motion day or until further ordi-r, it signities that the injunction may ho ditj- solved l)efore the tlay lixed, but cannot bo extended beyond that period, except witii the leave of the Court {Bultim v. London School Board, 7 CU. 1). 7(>(i). A trustee appointed upon his own undertaking in a suit to act as receiver of the trust property is not under oniinary cirounist;vneos, in lOiigiand, entitled to a .saUiry as receiver [I'llhimjlini v. litibv, linlisl, MhIiuiI Ini'fdmeni C'k v. PUIcinytitu, l24 \V. ii'. '2'6i). Hut in this I'rovince trustees are entitled to compensation as such (I!. S. O. c 107, ss. ;{7, 41). 5. An ap[)lic.'iti()n for an order under Rule i nia\- l)o made by the plainliff at any time after his ri<^ht there- to apjjears from tlie pleach' iilj'.s, or, if there be no plead- ini^s, it is made to appear bv aflidavit or ollierwise, to tile satisfaction of the Court or a .Judi^^e. ( R. Sup. C, 1S75, Ortler 52, R. 5.) Same as the JMiglish Kulc. 6. No writ of injunction siiall be issued in any case. An injunction shall be by a judi^ment or order, and any such judt^nnent or order shall have the effect which a writ of injunction now has. (R. Sup. C, April, 18S0, R. 12) Same in etlect as tiu; lOnglish lliile. Notice (It an iiijunetioii may l)i3 given by telegram and disnljedi- enco of such notice punished ;'s a cuitempt [Ex. p. Lnnn/.i'i/ Ik IJiihop, l.'itlh. \). 111)). See also p. I^."), supra. 7. Where an action is brcniL^ht to recover, or a de- fendant in his statement of defence seeks by way of counter-claim to recover specific i)ro[)erty other than land, and the pai'ty from whom such recovery is souL;"ht does not dispute the title of the party seeking;- to recover the same, but claims to retain tlie property by virtue of a lien or otherwise as security for any sum of money, the Court or a Jud^^^e, at any time after such last mentioned claim appears from the pleadings, or, if there be no pleadings, by affidavit or otherwise to the satisfaction of such Court or Judge, may order that the party claiming to recover the property be at liberty to pay into Court, to abide the event of the action, the amount of money in respect of which the lien or security is claimed, and such fur. MOTIONS, ETC. QOS thcr sum (if any) for interest and costs as such Court Rulea or Judge may direct, and tha,t upon such payment 402-405. into Court bein<^ made, the projjerty claimed be i;iven up to the party claimin^t^ it. (R. .Sup. C, 1S75, Order 52, R. 6.) Siiiuu as thu English lliile. The powur givoii )>y this Ilulu is iiuw. 403 8. Where the trusts of any will or settlement arc coM.iu.tof beii^ij administered, and a sale is ordered of any pi'o- J"''^"| "",''^.',1 ncrty \cstcd in the trustees of such will or settlement '""^'■t"'' - , . , ,-11 1 "'*^"i upon trust for sale or witii power ot sale by such trustees, the conduct of such sale shall be L;iven to such trustees, unKss the Jiul^e shall otherwise direct. R. .Sup C, March. 1S79, R. 7.) Same .aa the Kii;4lish link'. l''iiriiH'rly tlieplaintilV would li;tvc hail thu cowhict {/,'>' Miirs/1,1 1/, \V. N. 1S7<."», \-2). IJiuliM tlii.-< lluUf coiiiliu^l of sale was given to (let'einlaiit in an uetioii hy one trustee who was also tenant tor lite, aj,'ainst the; three other trustees {(Jnri/.iirr v. Hinmnoiit, tS L. .1. <'hy.. (i t4). Olii) \i\i XL VI I. MnrioNS AND orilKIl .VI'I'LK 'A'lMoXS. 404 1. Where by these llules any ap[)licalion is autho- Ai.|>ii.atioii rized to be made to the Court or a kKl^■e in an action, ';'.' V""!.'' *"" such aijplication shall be made by motion. (R. Sup. ''"i"' '"be C, 1875, Order 53. R. i.) l')y the ICnglish llnle it is only to a Divisonal Court, or to a .Judge sittiui,' in Court, that the applieation is hy motion. W'lien mi»de to a. Judge in ( 'lianiUers, the rule or onler to show cause continues in England to he the eourse. 405 2. No rule or order to shew cause shall be i^ranted n„ ,,„|,, q^ in any action [or matterl except in the cases in which <"••''•'■ '"'■'>■,' an application for such rule or order is ex[)ressly imtiKnizL'ii. authorized b)' thesi; Rules. (R. Suj). C, 1875, Order 53. 1^ 2). The Knglish Rule lias not the words which are in brackets ; it ia otherwise the same. l''or want of the omitted words th<;re is a ditlerenee in I'jUgland between rules or orders made in actions and those made in other cases. Thus in motions to set aside an award the old practice is held to prevail {1!< Philips d- dill, 1 Q. V>. \). 78 ; Ruhiiimn v. Il„l,iiis,)ti. "24 W. R., ()."), .'{") Ij. T. 3.'i7). But motions against SheriU's to compel •;■!! •1, ■V, ill 604 ONTARfO .TITDICATIIRE ACT, 1H81. Rules *he payment over of moneys levied under an execution {Delviarv, 405 408. Freevwnlle, 3 Kx. I). 237 ; '>ut see Fowler v. Anli/ord, 45 L. T. 46) ; motions tf> refer hack a report to a referee ((Irai'ix v. Tai/for, '27 W. U., 412; Difke V. Caumll, W. x\., 1883, lOr)) ; and motions to strike a solicitor (iff the Rolls (lie Solirifor, W. N., 1880, 'M\ ; /fe Copp, 32 W. R. 2/)) are not expressly authorized l>y these Mules to he hy rule to shew cause, and therefore under tliis and the following Rule should he hy notice of motion. These distinctions prohahly do not exist in this Province under the wider terms of the ahove Rule, hut motions to (juash hy-laws have been said l>y Osier, J. to ho pniperly m.ide on two eh-ar day's notice or hy rule return.'ihle four days after acrvicc. Ituics ni.ii to set aside awards maile out of ( 'ourt are also j^ranted (Sec lie (h/i/ri/'ii Arhi- trfilinii, W. N'., IS7!t. 1">I ; and notes p. 82, .sii/ini) ; also in casiis under H. S. O. c. 4'>, ss. \0 et .«(/. ; (sec IVnrk v. MouUon, 7 I'r. II. 144). Except where (b\- the practice existinf; at tlie 4oe Notirp iif orders r^ time OX tile pussiii^ ot tiic saul Act) aii\- ortleror rule nmd!-.'"" ''^li'i'^ heretofore been made vx ])(irle absohite in the first instance, and exce[)t wliere by tliese Rules it is other- wise j)rovided, ami cxccjit where the motion is for a rule [('" or sunnnons] to shew cause on!)' — no motion shall be made without i)revious notice to the parties affected thereby. lUit the Court oi- Jud-^e, if satisfied that the delay causrd by proceetliuL,^ in the ordinary way would or nn'i^lit entail irreparable or serious mis- chief, ma\' make any order i\r luntc, upon such terms as to costs or otherwise, and subject to such under- takin;^, if any, as the Court or Jud-'.e may think just ; and any part\' affected by such order may move to set aside [{}>) or var\] the same. (R. Sup. C, 187s, Order 53. R. 3) (it) 'I'lie Knglish Rule has not tlie words, "or summons." (h) rile Kugli.sli Rule has not tiie words, "or vary." With these exceptions the Rules are identical. As to wliat motions are c.c />'(/Vf (see Dan. Pr. 1441, iOOit). \n ex ■park order is .•i.lways taken at the peril of tlie party and is lial)lc to DC moved against if improperly made, or if material facts are sup- pressed on the hearing of it (Stiinjeon v. Uuolci r, 1 DtilJ. & S. 484 ; lie ', l.l Bt-iiv. 2,")4 ; Ciirtirriij/it v. /fini/.f, 3 Out. R. 384 ; Hi/iiea V. Fis/iri; 4 Out. (5(1). .Such orders should he served as soon as pos- sihle [Cknrrh v. Marsh, 2 Ha. OiVJ). A motion fftr leave to effect suhstituted service of a notice of motion is e.r purle {Hamiltdii v. Daries, W. N. 188(>, 82). Motions for leave to appeal from a report (Hnviilton v. Ttoeed, 9 Pr. R. 448) and to stay execution (G. T. liij. Co. v. Ontario cfc Quebec Ry. Co., 9 Pr. R. 42<») should not he made ex parte. MOTIONS. ETC. S06 4. Unless the Court or Judfje ^ivfs special leave to Rule 407. the contrary, there must be at least two clear days 407 between the service of a notice of motion and thcjj^^y'i'notica. clay named in the notice for hearing the motion. (K. Sup. C, 1876, Order 53, R.4.) Idfiiticnl with the Ktigliah I'lile. Motions lor juili,'Tnfiit are in Kuglantl held to he within this llulo {/'(irfions V. Ifitn-lx, (;h. I>. <)1)4 ; l\arce v. S/nrkrlt, W. N. 1876, 10!*.) See as to ])rac'tico in Ontario, note to Kule .'{Ifi. Wiiere a motion is made by leave of the (*ourt or a .linlge the nfitice should so state, otherwise it is irre^rular (///// v. h'iiiiell, 8 Sim (i!{"J). TIk! Court should also he informed of the fact on tlie return of the motion ; hut tlie ( Vmrt has a discretion to disregard the irregularity {/>inrsim v. /in.vin, '2'2 Cli. I). .')()4). So where with- out if.'ive a notice is made returnahle on a day on wliich tiw^ Court (iocs not sit { Ariiix/riiiii/ v (':\ ; Dciikhi v. Cuh'wdn, 'Jo W. II. '2<»4 ; but see Fin-n',st v. Duricx, 'Jd \V. K. iuU). Where notice of motion has not been given in suflicient time owing to a lintitt ti'li- mistake, tin; Court may in its discretion allow the party in default to siiew the n-ason of the mistake by allidavit and allow the motion to be niaclc on a later day {Smith v. SnuirkKiiien, fns. Co., :\2 W. K. 18-1). Where a defenilant has not appeared to the writ the posting uji a notice of motion under lUile \'M will be good service within this Rule (l)>iniu„'l V. drop. .S Ch. D. ni'J ; Murtnn v. Milln; ll>!!>4) ; and sirvice of a notice of motion fur jutlgment must be cllccted eitluM- pcrson.ally or bv lasting as above (/>'/(/•/•;/< V. A/itn/or/r, il I'r. H. JOI). Where the party who has given notice of motion fails to ajjpear the party served and appearing is entitled to ;ui order for his costs (liirrij V. /'Jxr/nniijr 7'rii(l!ii. 4'J5 ; (ircat Northern Co. v. l,i,'tl, '_» g. li. I). '284; I'mvln/ v. W/iitcheiu/, 10 IT. ('. (I H. m)). As to the costs of a person who apjjcars, though unnecessarily served and merely to ask costs, and of one who appears quin tivvt an order wouhl be made against him, see Ijucus v .Fraser,d I'r. II. SI'.t. Under the .Judicature Act where an order is made in default of appearance the former practice is still in force that it is necessary to produce an affidavit of service to the Kegistrar before the rising of the Court. It is not sutlicient if it be produced in time to draw up the order (.ywi/- V. Wchb,, 'lo Ch. D. 84; Jows v. /iartholomcw, W. N. 1883. 20.') ; Re /{osier, 49 K. T. 44-2). A notice of motion need not state under what liule the party pro- poses to move (Re Barker's Ksfale, 10 Ch. D. 1G5-6). \%m k H ''! IMAGE EVALUATION TEST TARGET (MT-3) 7 /. r/. A* &> :/. 1.0 I.I 1.25 u: 1^ 1.4 6" 2.0 1.6 V <^ /^ :>> Photographic Sciences Corporation 23 WEST MAIN STREET WEBSTER, N.Y. 14580 (716) 872-4503 4r ^ \ ^^^ %^ 506 ONTARIO JUDICATURE ACT 1881. Rules 408-411. 408 All jjiojici' parties not ■ervfd. 409 Ail.jimni- nieiit. 410 ,^e\- ice l>c(l)ii' 5.!:()'inrani' 411 Service will writ or before time for ai>i)ear- .ani:e. 5. If on the hearing; of a motion or other applica- tion, the Court or Judge shall be of opinion that any pcr.son to whom notice has not been given ought to have had such notice, the Court or Judge may either dismiss the mt)tion or application, or adjourn the hear- ing thereof in order tliat such notice may be given, upon such terms, if any, as the Court or Judge may think fit to imi)ose. (R. Sup. C. 1875, Order 53, R. 5j. Identical with tlio Ihiglish link;. 6. The hearing of an\' motion or application may from time to time be atljourned upon such terms, if an\', as the Court or Judge shall think fit. (R. .Sup. C' 1875, Order 53, R. 6)! KU'iilifal with the Kiiglish Itule. 7. The plaintiff shall, without any special leave, be at libert)- to scr\'e any notice of motion or other notice, or any petition or summons upon any defendant, who, having been c'ul\' served with a writ of summons to appear in the action, has not appeared within the time limited for that purpose. (R. Sup. C, 1H75, Order 53, R. 7). Identical M'itli tiio Kiii^lisli liulc. I 8. The plaintiff may [also, without any special leave, serve a notice of motion for an injunction, and may] by leave of the Court or a Judge to be obtained rx jinr/c; serve any [other] notice of motion, upon any defendant along with the writ of summons, or at any time after service of the writ of summons and before the time limited for the appearance of such defendant. R. Sup. C, 1873, Order 53, R. 8.) The words iu l(iMi;kotn are not in the English Rule, wliieh is otlier- wise the .-ianie. The ahove Rule thus makes a distinction iietween notices of motion for an injunction and other notices of motion, authorizing the former to he served l)efore appearance, withmit leave, hut re(pnring leave for such .service in the case of other notices of motion. The Kiiglish Rule reijuires jirevious leave in all cases in which notice is scrvet.! hefore the time limited for appearance. ^ ii f^ CHAUBEKS. ORDER X LViI I. APPUCATIONS AT CH..\:" :RS. The inutfcors which may bt; disixjsed of in iJhanibura art; too niiiu- erous to sjn'cify in tictail. They were iiiuler the former (jhaiiee.ry jiraetiee, regulated Ity Chy. (i. O. li)7 (iniiiteil in tlie note to sec. !)'2 ot the Act, \). lO'.f). Those applieationss which migiit have been entertainctl in ( 'liancery by tlie Jieferee in Ciianibers and at('ommoii Law Ijy the Clerk of tiie Crown and I'leas of the Q. |{., and may now bo entertained by the Master in ( 'handjers, arespecilied in tlie notes to sec. (i'J of tiie Act (see also Rule 4"Jn). A .Tudgt; has jni'isdietion to malic an onlei: wiiich can l)e made in C'liandieis when .sitting in his [irivate room [llartniunt v. luisli-r, 8 (,». H. i). !^'l). I. r^vcry;ip[)licationat Cliambcr.s in Toronto aiitho- rizctl b)' lliLSc Rules, and not made r.r jviric, shall be niadi 507 Bales 412, 413. if Ml a suniniar \va}', on ni)ticc instead of by summons, ((,'onip. R. Sup. C. Order 54, 1S75, R. i). The I'higlisii iiule ivnuires all ( 'hamlirr ajiiilieations to lie made by siiimnoiis. The.'ilxtve liule reijuires Chandler applioations in Toronto 412 Apiilica- ti"ii.s to lie iij;ii|i' in a siiiiiiiiaiy way. to lie madi' on nutHte uisteai lot a summons, tnus iirovnlni^ umtorm jn'actui' on a]i ilications to the ( 'oui't and in ( 'li:in I'iiis praetiee will a[)[ily whether tlu; apiilicatioii is to ;i Ji in Chandlers or tlu' .Mastir in ( hambcr.- official referee nmli'i- Itule 4'Jl. urn icr Rule 4'JO, or to an Aiiplieations at ( "handiei's tisewlu're tlian in Toronto, to any •Tmb e.Kuept a County (.'mirt dudge, will be made on notice. Scr Rule 405 .sC/l/Vl. Aiiplieations to a County Court .fudgi; or Local Master ai'e by Rule 4:2."), to be made by summons. Such an apiilication necessarily iei|uiies ;i previous aiipointment to lie made v ith the Judge or Master. Altidavits to In; read in support of a notice of motion or summons in ( 'handlers nnist le 1 1 leil in Chandlers before the notice is s^i'vec lor suinuions issueil. Alliil;i,\'its in answer to a motion must lie tiled they can be read but not necessarily liled the dav before, as Wii; formerly the ]ii-actice in ( 'haneery and still is on motions in Court in the Chancery Id vis Irregularities relied upon as grounds of a motion should be stated in the notice of motion or summons accordnig to the tormer (han- eery pi'actice (< >' I'l'illii v. Mi I C. L. T. rX).^ i/(- v. I'liole, Cliy. Ch. ',\~\) ; Ditiiel/i/ v. Joiie.s, 4 I'hy. Ch. 46} ; but it is a sub- stantial compliance witii this practice if the irn;gu;arities are speci- lied in the atlidavits in support of the nu)tion and referred to in the notice or sunnnons as being so specilied (lihuii v. Blnin, 9 Vr. R. '-'G!)). 2. An order shall be in the Form No. 109 in Ap- pendix (H) hereto, with such variations as circum- stances require. It shall be {(i) marked with the name of the Jud^e or officer by whom it is made. (R. Sup. C, April, 1880, R. 39). 413 Form of order. V fi^i '■iff 1 608 ONTARIO JUDICATURE ACT, 1881. Boles 413, 414. («) The English Rule has here the additional words "sealed and." The two Rules are otherwise the same. 414 Manner and time of appealing thertifroiu. Orders in Chambers should be dated of the day on which they are finally made, and should not be ante-dated, nor contain recitals of affidavits dated after the date of the order (A.shley v. Taylor, 10 Ch. D. 7(58) ; nor be drawn up stating that parties appeared who, though they appeared, were not served with the notice or summons {Eoeli/n V. Evdi/n, '28 W. R. 531). Where an order is expressed to last until a particular day "or until further order," the words " further order " mean an onler made on an earlier day than the day specified (Bolton v. London School Board, 7 t^h. 1). 71)6). Where an order is made l)y consent without mistake, such consent cannot be withdrawn before the order is passed and entered (Harrpi/ Croi/dcn, W. N. 1884, 41 ; M'i W. R., 380 overruling Jioqers v. Horn, 26 \V. R., 43'2. See also No/l v. Jf.sHo, 3 C'ii. D. 177). But the (^ourt has jurisdiction to disoiiarge an order made on an interlocu- tory application by consent when; it is proved to have been made under a mistake, tliough tliat mistake was on one side onlv i MvUius V. Howell, 11 Ch. I). 763). A defendant gave an undertaking at the hearing tf> make c(!rtain payments to the plaintiff ; the order was drawn up two or tlirce weeks Inter, and the undertaking was embodied in it ; the under- taking was given under a misapjirehension of fact ; but application to diischarge tlie defendant from the undertaking was refused, on the gnniud tiiat the facts were ascertainable by the defendant, and that the ap]ilication was un or three the uiider- applioatioii sed, on the t, and that {Attiir/nt/. :ision at Ic within it, (a) Ol- eic shall day on expira- ., Order :), R. 8:. ixch. D's. mi TJie liardships .21, and I Sorietij, as origin- 1 of time vacation ithin the ilmost as made at 3 expired xecutiou ! (ih). CHAMBERS. 509 This Rule a])plies only to appeals to the Court from a Judge in Rule 414. Chamber.s not from the Master in Chambers. The latter appeals are governed by Uule 4'27 (/^""••so« V. (kinada Farmer.i, (('C, 9 Pr. H. IS;")) the motion must bo made within the eight days : it is not enough. It has been held in luigland that that notice of motion be given witliin •,Iiat time {Fox v. \V(iUii,2C P. D. 45 ; sec also JncLwn v. Gardner, l;)(ir. 4'_'5 ; Hdrrixv. Mi-i/ers, IGCir. 117 ; Mrllroi/ v. Hawlcc, 3Chy. Ch. (56. Tlie time may be enlarged under Rule 4(52. If the eighth day is a Sunday, then by Rule 4,")!( the motion may be made on Mon- day ( Tntilor V. Jones, 4.") L. .J. C. P. 110). >See also SllrUiuj v. Da Barry, 5Q. B. D. G"). In Ontario however, it ia not essential that the appeal should be heard within the eight days or that the time should be ex- tended, provided the appeal i.s made at the first sitting of the C'otirt, after the making of the order {Ileicnim v. Macilonuld, '2 ( '. L. '!'. .'US). Notice of appeal should, however, be given for tiie first !:, ti> be approved of by the Court, and kept for that purpose by the Deputy Registrar." See notes to Rule 78. " 39. P]very Deputy Registrar is forthwith, after the 30th Jime ch. Ord. j9. and 31st of December, in every year, to make a return to the Clerk of Records and Writs, of the number of bills, answers, and demur- rers, filed with such Deputj-- Registrar during the preceding six months, and is to transmit with such return the amount of fees pay- able into ' The Suitors' Fee Fund Accouni;.' " * 1 i ■ < a- iJ 1 ) i i ■ 1' I ! .it m .n u\\\ 1 ::, 512 ONTARIO JUDFCATURE ACT, 1881. Rule 417. ReT. Stat. 0. 60, s. 6. Rev. 8t:it. 0. 50, H. 9. Re7. Stat. c, 50, a. 11. Rev. Stilt. 0. 50, 8. 180 Uev. Stat. c. 60, 8. 279, Rev. Stilt. c. 00, s. 2S0 Rev. Sfat. C. 60, a 353. Kov. Stat. c. efi, 8. 7. Tbo onliuary powers ami tluties of the Deputy Clerk of the Crown sutiiciently apitear from tlie following sections of 11. S. (J. c. ^^^) : *'(). Each Deputy Clerk of tlie (rowu shall issue writs for the comuiencenient of actions is his County in the Superior Courts, and the (!lerks of tlie County (Jourts sliall issue all similar writs in the County Courts respectively." " J(. The Process Clerk ami each Deputy Clerk of the (.Jrown and the ("lerk of each County (Jourt, sliall note in the margin of every writ issued by liini, from what olHee and in what ('ounty the writ issued, ami shall subscribe his nanio thereto." "11. Where the cause of action is local, the writ for the com- mencement of the action must be sued out from the olHce within the projier C'ounty." See Rules 20 and 254. " 180. Wherever the plaintirt' or defendant in any suit instituted in either of the Superior ( 'ourts. wishes to produce to either of su(;li Courts or to any Judge thereof, the writ, declaration, plea, or any other proceeding tiled in the cause in the otHce of any i)e[)uty Clcik of the ("rown, the plaintiff ov defendant may demand and I'eceive from such Deputy ('lerk a copy of the same certilied l)y the siiid Di i)uty to be a true copy of the original, and such copy so certilied shall be received by such Court or ■hidge, in all cases, in lieu of the original, and as a proof tliereof. " "27!). !'] very Deputy Clerk of the Crown shall, within twenty- four hours after notice in writing delivered to him in his ollice, for that purpose, and payment of the necessary postage, enclose, si;d up and transmit l)y post to the ])roper ))riiKup;il ollice at Toronto, addressed to the (.'lei'k thereof, any record of Nisi I'rius in iiLs custody mentioned in .-uch notic^e, together witli all e.vhiljits HUmI at the trial, and in default thereof lie m:iy be ailjudged guilty of a con- tempt of Court, and be dealt with in the (iiscretion of the Court accordingly ; and if, after such notice, the Nisi Prins record is not in Court at the time of moving any rule requiring a reference thereto, the party moving may. on liliiig an alHdivit of tlie service of notifi', and that tlie record, on search, has not been found in the .'^iiid principal otiii;e, be allowed by the Court to move sucli rule without the production of the record. " 2S0. The said Deputy Clerks of the Crown shall, after the time for the moving for new trials has expired, (kdiver to the attonuy of the party entitled to tho punt <'n, any recoid in their custody upon gL> ting a receipt for the same, but they shall not deliver to any [larty any exhibit liled, without a Judge's order to that effect." "iio.S. Either party may as of riglit, upon giving two day's noti(;e to the opposite p.-rty, have the taxation of costs by any De[inty Clerk of the Crown and Pleas revised by the principal ('lerk of the Court wherein the proceedings have been had ; and the Court or a Judge may, by rule or summons, call upon the Deputy ("lerk who has taxed any bill to show cause wh,y he should not pay the costs of revising his taxation and of the application, if in the opiuion of a Court or Judge, on the affidavits and hearing the parties, such Deputy Clerk was guilty of gross negligence, or of wilfully taxing fees or charges for services or disbursements larger or other than those sanctioned by the rules and practice of the Court. " Section 7 of the Execution Act, 11. S. 0. c. 6G, is as follows : " 7. All writs of execution may issue from the offices wherein the judgment has been entered ; and in the Superio. Jourts of Law OFFICKRH AND OFFICES. 513 '..1 I' ■i-l 1 aftiir the transTiiissiou of the jm gnient roll to tlie principal office, Rules such writ-! may, at the option of i he party entitled thereto, bo issued 417^ 419. out of rtiicli [jiiuuipal ollice." I>y Rules 'JO, 21, and 2C), it is 1 rovidod that : ■10. In any action whatever, the plaintifl', wherever resident, Kulo 20. may issue a writ of sunnaons out of tlie proper olHco in Toronto, or in any (Jounly. "II. Writs of suniinons for c unmencemcnt of actions in the Rule 21. Queen's Mench and(!oninion Plea? Divisions, shall he issued by the same oHieers m now issue like wriis for the (,'ourts of IJueen's liench and Connuon Pleas resji'jctively, ami shall he issued alternately in tlie l^ui^ciu's liench and (Jonnno 1 I'leas Divisions, as the ease nuxy l)e, as heretofore in tiie said (Jour :s. ^Vrits for the comnieneenient of actions in the Cliiinoery Divisi )n shall bo issued by tlie projier otlicers hitherto attached to the (!ourtof (Jliancei'y. Writs issued l)y the (Jlerk of Records and Wrics, or by a Dcjmty Registrar or Duputy Clerk of tlie (!rowa and Heas need not be sealed or signed by the Clerk of the I'rooess. "Hi. The proper otfieer shall make an entry of every writ of Rule 26. suinnions in a hoi)k to be called vhe I'rocess Rook, which is to be kept in the manner in which pro ;ess books have heretofore been kei>t by the Clerks of the Crown aid Pleas ; and tiie action shall he distinguished ijy a number in tlie inanner in which actions are now diritinguishcd in such lasi, iiieutioued hooks ; ami in case of any furtliu-r proceeding in the action, and entry thereof shall he made in auDther liook to be called the Procedure Book, which is to be kept ill the manner in wliicli Procedure Books have heretofore been kept by the said (.lerks." 418 4. Qi) Subject to the foregoing Orders, where an Entry of action is commenced in the office of Deputy Ret^istrar""^'''"' or Deputy Clerk of the Crown or Local Registrar, all such orders in the action as require to be entered (except orders made by the County Court Judge or the Local Master of the County under the authority and jurisdiction vested in them under these Rules) , shall be enleretl at Toronto ; and, where necessary, an office copy of the Order so entered shall be trans- mitted or delivered to the Deputy Registrar, Deputy Clerk of the Crown or Local Registrar to be filed with the proceedings in the action. (See, R. Sup, C., 1875, Order 35, Rule 2). . [li] The English Rule gives like directions with reference to the District Registries established by the Judicature Act of 1873. The authority to make orders where actions proceed in the District Kegistry is given to the District Registrar, not to the County Court Judge or any other officer. See notes to Rule 419. \ 514 ONTAIUO .lI'DICAri'KK A« ri, 18.SI, Rules This link' liiisl)i!on iimoiiUud by K\ilo r>((!t which is iia follows : — 418, 419. 418 ('I) 1 4". Ail (jrilcrs issued by a loc.ii filticer which rcfjiiirc Eutiyiu to be entered, siiall be entered at tiie (jiTice of such local oltices. ,,,-,., , h)cal oihLer onls'J. S(!o furtlior oil tliu Huhj.x't of the eiitrv ot' ohIlts, the iu)t(;M to Utile Hit. 410 Kiitrydi 5- Section |.s,,V/.V///^/] 303 ol' the C(jninn)ii L.iw pro- ju(i-Mi,nt cedure Act and section 7 of the " h^xecutiim Act" mill issue 01 , ■ , , , lix.Miiiihby shall apply .IS nearly as maybe to Deputx^ Kei^'istrars as \\\:11 as lJe[)uty Clerks of the Crown. [tSrr i\. Sup. C, ICS75, Order 35, Iv. 3 ; K. S. ( ) . c. 50, ss. 12. 303 ; c. 66, s. ;). puty ui.it r I r.- .^'•^. K'n. Stat 5(1 s. 12. Rev. St, it. !>{). s. Hu.i. Kill 'Tilt; L:i\v i'rucedure .Vot, ia hereby ruseiinK Court of Justice, shall not be iiiiiiiit>.'.l said section 'A()'2." Sections ll.' and .303 of the ('. !.. I'. Act an' .ms t'..llu\vs : '• I'i. .\11 proceedings to final judgnient in ai^tinii.s, whetliei )l(l. in amiiidnu.'nt of tliis Rule, enacts as follows : >. So much of link; 411), as applies to sec. ItOJ, of the ( 'oiniuou I. and judgiiK iits of the lli.n'h aiiii docketed, as rei[uired liy shall be carried on in the uilii traii- froiu which the tiitit Rev. Stat. 56, 8. 57. sitory or local procc -. issues. ' " 'A03. Within tiiree months after the entry of each jud^'inent, by a Deputy (.'lerk of the Crown, he sliall transmit to the principal Clerk of the proper Court in Toronto, every such judgment rol! ami all papers of or belonging thereto, and .'iucli judgment sliall be also docketed in the iiriucipal othce ; and in cast; in any of the Courts the original judgment roll happens to be lost or de.stroyeil, so that no exemplilication or examined cojiy tliereof can be; procured, a cojiy of the entry in any of such docket- books, certilied by the Clerk or Deputy (Jlerk of the Crown, or by the Clerk of the ('uuntj' (Jmiit having sucli book in his custody, shall be evidence of all matters therein set forth and expressed." Sec. 7 of the Hxecution Act is as follows : '■7. All writs of execution may issue from the oHice wherein the " judgment has l)een entered, and in the Superior Courts of l^aw after the transmission of the judgment roll to the princiiml oilice, such writs may at the option of the party entitled thereto, bo issued out of such principal olhce. Some difficulty was experienced in the working of the present Rule and Rule 418 in regard to actions commenced in a local otfice. The judgment was to be signed in the Local olHce. (See Rule oO), but entered in 'I'oronto, (Rule 418) and the original judgment trans- mitted to Toronto (R. S. O. c. 50, s. 30.S, nu}>ra). The entry in Toronto seemed to have I'eference to such an entry, as was formerly made in Chancery, i.e., verbatim in a book kept for the purpose, the original judgment being thereafter handed to the solicitor. Under R. S. O. c. 50. i. 303, however, the original judgment was retained in the principal office. The question therefore arose, 1st, asto whether a book containing verbatim copies of judgment was to be kept in Toronto, and 2nd, what was to be done in cases where the judg- ment did not end the action, (as iu such cases as were formerly Ik; iioti.'H tf> ether tran- 3h till! tiist MASTKR IN CllANCKUY. 51fi )riiii.L,'lit ill (Mi.'inoery,) iiinl tlic original jiidgiiR'nt wiis rei(iiireil hy tlic Rules Hplicitor for the jiiirpoai.' of refcrcuuc or otlicrwisu to guide in th tutiiic. Kides aOS and 5(1!) were passi'd to runiovc thrse didicultit's. Ilulu ■)|i;( IS pi'inttid sii/int as l!ule tlS a, and itulf ")I).S was ^illl)sel|uently rescinded by Iiule i'>\~, and the following siilistituteil : 419, 420. 419 rt [■)((. It shall not be ncccssai')- fur the i)e[)uty Clerk usi ..rjudg- of the Crown, ncj)uty Registrar or Local Rei;i.strar to transni Hunt uii- ti'fi'd by it to the Registrars of the several Divisions ''"•"i o^- of the IIiL,^h Court at I'oronto tiic ori^nnal roll and the papers of or belongin^i;" to the same, jun'suant to section 303 of the Common Law Procediu'e Act and Rule 419 of tile Judicature Act ; but instead thereof, every iJcputy Clerk of the Crown, Deputy Rec^istrar and Local Ret^istrar shall once in every three months I'ors. transm it to the Registrar of each Division at 'I'oront o. a list, in the form hereinafter mentioned, of all judi;- nie iits which have been entered by him i n sucl Division durin;.; such period, and from the said lists the K.eL;istrars of the :;everal Divisions shall prepare, and from time to time keep up a general index or list of judgments, which shall be open to inspection by all persons interested, upon payment of the usual fee. FORM. List of Hulgmonts entered in the oftice of the Deputy Clerk of the Ci'owii {or Deputy Registrar or liDcal Registrar, an the ai.^t' maij he) of the County of during the three mouths ending the day of 18 (1) I'laiutilf Defendant ['!) Date of entry of judgment. (3) The amount recovered or other relief given exclusive of coata. (4) The amount of costs taxed.] (Rule ol7). Since this Rule the course is to enter the judgment in full in the lojal othee in a book ior the purpose, deliver the original to the s )licitor, and return to the principal otlice in Toronto from time to time lists only of the judgments so entered in the Local office. 42 6. There shall be an oflficer of the Supreme Court M,.^gterm to be named the Master in Chambers* who, in regard ^'»'">»^er8 to all actions and matters in the High Court, shall have the power, authority and jurisdiction heretofore in like cases possessed in the Superior Courts respec- tively, by the Clerk of the Crown and Pleas of the Court of Queen's Bench and by the Referee in Cham- bers of the Court of Chancery, f }\ m \:'-\ 11 ' 516 ONTARIO JUDICATUllK A(;T, 1881. Rule 420 (f/J The said officer shall not have authority or jurisdiction in rt-spcct of the matters ex'ce[)tcd in re- gard to the Clerk of the Crown and I'leas of the Court of Queen's Hencii by the Rules of the Judi^cs of the (.Courts of Quecii s Bench and Common I'lcas of Hilary Term, I.S70, + ( 1') or in respect of the mat- ters excepted in regard to the Referee b)' the 560th of the Orders of the Court of Chancery ,-f- or in respect of appeals from Judges of 0)unty Ccnu'ts or Local Masters, or in respect of any other matter which hy these; Orders is expressly required to be done by a Judi^e of the lli^h Court.."!: {Src R. Sup. C, 1S75, Order 54, R. 2.) My the I'-iiglish Rule a Master has nearly tin; .same authority in Hy thin Rule D. a.s well as in tlie the saiiiu (.). I;. till) (.}. 15., ( '. I*, and i'j.veh. Divisions. oIliecM- is to have jurisilietion in tlie ('hy. and ('. I'. t For tin; [lowei's of these ollioers (with the exceptions referred to) see the notes to see. C>'2, supra. i Sec Rules "245, suh-sees. (/') and (c) ; •24(5, sui)-sees. (il) and (< i ; 31)4, 4-21, 4-_'4. (x). Kornierly the Referee in Chambers could entei'tain motions to eoniniit for disobedience of an order to produce, but the Cleik of the (J. & I', (i. B. li.id no jurisdiction in matters relatiui^ to the liljerty of tlie subject, 'i'lie latter r'jstriction is under tiiis I!ule Ik . ' to prevent tlu^ ."\Iaster in CiiUinbers from entertaining; juotioiis to compel ol.i'dience to an order for production by committal (Kk/c v. War,/, 18 C. L. J. itjl)). Tlie f )r;n -r R 'f jree had no power to exercise; the jurisdiction con- ferred by R. ,S. O. c. 4!), ss. 10, l(», on a .fudge in Chambers, as this jurisdiction was conferred after the Oeii. Orders of conferring on the Referee (with certain e.vcejjtions) the jurisdiction f/ii^ii jjossessed hy a .Judge in Chambers ((i>«e('« V. Smith, 7 I'r. R. 4*2! » ; see Wark \. Moulton, 7 I'r. It. 144). The Clerk of the C. & V., Q B., has e.v- erciaed such power (see Watts v. J/alisun, 7 Pr. It. 884). See also Jfc Nolan, Pr. R. 11.5 ; !{>■ Arnott, 8 Pr. il. 39. In Gulhwr x. SwaifJc, 8 Pr. R. 4'21, the R'eferee Mas held to have jurisdiction under R. S. O. c. 4!», s. !> as not conferring a new jurisdiction Imt merelj' extending tliat which he already had under Uen. Order .")(). The Refei'ee was also held to have no power in an administration suit to allow a person claiming adversely to the heirs to be made a party in the Master's office to establish the claim there (AV Tallin, Tohin V. Tohin, 7 Pr. R. 67), nor to exercise a summary jurisdiction over solicitors (Re L. A M. (Solicitors) 6 Pr. R, 21), nor to make an order for payment into Court by an executor or administrator of amounts admitted to be in his hands (Re Curry, 8 Pr. K. 340), see however new Ptule 322. An application impeaching the propriety of a filing is not an ap- peal or in the nature of an appeal from the officer who filed the liocument so as to exclude the juiisdiction of the Master in Cham- bers { Waterous v. Far ran, 6 Pr. R. 31). us referred t(i MASTKH IN CMAMIIKUS. 517 Tlif MiiHtor in ( 'liainlicrH liaH lui jurisdiction an cnuflictinf; cviiltntc Rules t(i strike out pliMs, raisiiii,' (jucstions nf lialiilitv |irfliniitiary to an 421, 422. ,n;iniint and order an aicount to \n' taken (llitun v. F'lsli, 'JO ('. li. .!. 114). 421 7. An\' official referee, iit)on the request c»f the „ , .1 •' , -I I c II r 1 I I • 1 /■ onid.il Masti-r 111 C liainljcrs or oi a Ju(l;4'eot the 1 lic;n Court, ivivi.c may may sit with c^r for such Master; aud while sittin^^ for u.,i"fu'r"""" him shall have all the authority and power of such "'"^'^''■• Master, but shall not be entitled to any fees. Tiii'ie is no corrcsiiondinfj; I'jiLcIisli iiule. See iinle r)41 making siiiiiiai' provision where an ollieial Iteleiee sits for the Master in (Jrdiiiaiy. (S. The County Court Iud<>e of the CoiuU\- in which *^^ I 1 1 1 1 r 1 /• 1 ' /- 1 Aiitliiirity of an action is lirouL;hl shall, from a.nd alter the nrst day eonnty of Januar)', 18S2, iiave the same power and authority j,',''|'ypg. in the action (,/) as the Master in Chambers aforesaid, save and excei)t that the auth(; -itx' of such County Court Judi^es shall not extend to ;_;ranting lea\e for service out of Ontario, or to allow ing service out of C)!itario, of a writ of smnnion- or o^ notic(^ .>f a writ of summons ; pro\-ided also tuat in coutilies in which there is a Local Master who docs lOt practise as a Jiarrister or Solicitor, and who has not taken out a certificate to practise, such Local Master shall, in rci4ard to causes and actions broti;_;ht in his county in the Chancery Oivisi(,n, have (in addition to his powers as a Local Master) (vj the jurisdiction, jjower, and authorit)' hereinbefore j^iven to th.e Count)' Court Judi^e ; and in such counties the Count}' Com-t Juch^'e shall have and exercise the said jurisdiction, power, and authority only in regard to causes and actions broui^ht in his county in the Oueeii's Hencii and Com- mon Pleas Divisions. (Sre R. Sup. C. June, 1876, R. 19 ; R. S. O. c. 50, s. 148; s. jG of Act supra.) (./•) Interpleader ))i'oeecdings are proceedings iu an action aud therefore are within tliis Rule [Cnuhun v. S}>h'rs, <) I'r. K. 4;fl). I//) These words probaldy refer to the powers which tlie Local Masters possess under dhy. (i. Orders 'M, 8") aud .3(5 (|)riuted iu the note to Iviile 417), aud to those conferred hy (leu. O. 0,S8 (printed in note to Rule 3). 'I'he lattar powers are exi)ressly preserved intact by Rule 3 {Be Allan, Pocock v. Allan, 9 Pr. R. 277). The jurisdiction of a Local Master under this Kale is limit?d in the same way as that of a County (Jourt .ludge, by clause (a) of this Rule {Fred v. Macdomild, '10 C. L. J. 13G ; 4 C. L. T. 197). ■'v-\ ;■;! \ i,i ■! i \'\\.\\ iMJj m I 518 ONTAIUU JUDICATURE ACT, 1881. Eule 422- 'I'iie reatriction in tliis llule with respect to orders for service or .allowing service of writs out of the jurisdiction extends to euses where defendant hiis iib.sconded from the country, and suhstitutioiial service is (h;sired upon some person within the jurisdiction (Chirk v. AiKjer, 3 (J. I.. T. L'I7). (a) The power and authority of a County Court Jud^e under this Rule shall not apply to any aetiun in which the writ is issued in the Couniy of York, or (except by consent) to any action wherein the solicitors for all parties do not reside or have not offices in the county town of the county in which the action is broui^ht, or wherein any part}' who has no solicitcjr does not reside in, or has not a place of business in the county or union of counties. Such consent by a solicitor maybe i^encral by a memorandum in writini; filed in the office ot the Deputy Registrar or Deputy Clerk of the Crown ; or may be confined to any particular action or apjilication aiid be manifested as in the case of an}- other consent by a solicitor in a cause or matter. {Src R. .S. 0.,c. 50, s. 148, sub-s 2.) The English Rule excepts from tlio power of the Master or Dis- trict Kes,'istrar autliority to i,'rant leave for service of a writ or notice of a writ out of the jurisdiction In this Province the Clerk of tlie ( 'i-own and I'leas ot' the Queen's Bench and the lieferee in Chanihtrs always hail tiiese powers under the former practice and they are niiw continued to the new oiticer, the Master in Chaml^ers, but are not for the present given to the (k)unty Court Judges or Local Masters under this llule. Where the Local Master does not practici; as a l)arrister, he alone is to have the judicial authority in the Chancery Division, under this Rule ; subject to the restrictions in paragraj)h [a) (Fred v. Mc Donalil. •_'()('. L. J. l;:i6 ; 4 C. L. T. 107). When he does practice, or has taken out a certificate to practice, the (^'ounty Court Judge is to have the same authority in regard to causes and actions brouglit in the Chancery Division, as he has in regard to causes and actions in ».cher Divisions, subject to the resti'ictions in paiagi'aph (a) of this Rule, anil in Rule 424. [a) This section of the Rule varies from the statutory enactment referred to which is as follows : — "lis. In actions in either of the Sxipei'ior ('ourts, the Judge or acting Judge of the County Court for the County in which tlie action has l)ecn l)rought or the venue laid, maj', upon the application of tiio plaintill' or defendant in such action, grant summonses aiid orders for time to decLiro, plead, reply or rejoin, and for particulars of demand, or of set-off, and may grant summonses and orders for pay- ment of money into Court, for tiie allowance of bail, or for security for costs ; and such Judge <ers. COUNTY JUDGES. 519 yP •y oiiactniont •' {'2). Tliia section ahall not apply to any action wherein tlie vonne Ralos is laid in the Ooiuity of York, or t(t any action wherein the attorney 422-424. for tlie (lefeii laiit, or in eisj of two or mn\', denjiul'iiits, wliei'e the attorney for anv one or more of theni resides in a County or Union of (J:>uiities did'er^'ut froui that in wliich tlie attoi'iiey foi' tlie ])lain- tilF, or, if he pros'^cutes in person, in which the phiiiitifi" resides." The restriction referred to in the note to the preceding Rule and K'l'/f. V. Wdi'd, tliere cited will prevent a (Jountv . Fudge or other oilicer ai:tini5 under tliis Mule from entert linintf a motion to i:onimit for disohedienee of an order for production. 423 9. The power and authority of a County Cowrt kx yarn Jud<^e to make fx. p'irfc orders shall not be subject toc^uj^y^'^ the hinitation set forth iti the precech"n.i^ para;:^raph (rt), JuJau. and may be made thouL^li the solicitors for all [)arties do not reside in the same Count}'. r>y tlie former pr'ietiee in the (Jourts of ()ueeii's IJeiich and f satisfaction or amends, and not belongini;" m whole or in part to an infant or fmiie Gomrtj ; and on the application for such order, the Court or Judi,^e ma)' review, amend or refer back to the Master his report or order, or make such other order as the Court or Judge deems proper. (See (j. C). Chy., No. 639). The latter part of the i 'hancery Order referred to is as follows : " No money shall he distributed or paid out for costs or otherwise, without an order of the Judge in (Jhamhers or the ( 'ourt. and on the application for such oriler, the Jmlge may review, amend, or refer hack to the Master his rejiort or order, or make sueli other oi'der as he deems proper.'" See nupni ]). l.")'J. The effect of this Kulo and llule 420 is to prevent the Master in Chaml)ers or < 'ounty .Judge, or other otHeer from directing payment of inouey out of Cmirt. Where the payment of money out of ("ourt is retiuired an appli- cation in other res|)ects within the jurisdiction of the Master in C'liand)er5 orotiier otHcer, as 1 . 7. on an api)lication for sah; of infants' estite, the Must'-r or olli;;i;r should (unh.ace in his order such direc- tion fir paymjut out of < !ourt as lie thinks propei-. hut it can only l)e act J I upon W'len e)ntirmed l)y the subsei[uent order of a .fudge {Jie Ihrit', \) Pr. II. 110). >fo such conlirmitory order is necessary in the case of an (U'd'.r made by tlie Kefnree in ( 'hambeis before the .Jnd. Ait c:ime into fores (/^' (Janicr^ia, !) I'r. R. 11). m m iMj'l! '^Xi ikJ 620 ONTARIO JUDrCATURE ACT, 1881. Kules Orders are often obtained in administration or partition suits to 424-426 dispense with payment into Court of some part of [)urcha.se or other moneys, e. (/. where tlie iiarty to jjay is also entitletl to receive tlie moneys wlien paitl in. These are in the nature of orders for pay- ment out of Court and are therefore now required to be nuide by a Judge of tiie Higli Court. Such orders can only be obtained on notice to the ( )fficial Guardian where infants are conceined ( llule 50")); and must be left with tlie Accountant forthwith for entry ( Itule 504). 4.05 Manner of II. Evciy eippliccition to a County Court Judi;e or apphcation. Local Master under the Act or these Rules shall, where notice of the application is necessary be made in a summary way by summons, {^ce R. Sup. 0., 1875, Order 35, R. 5.) ' The corresponding^' I'liiL^lish Rule directs tliat " every application to a ])istii(.',t llejiistrar shall be made in the same manner in which applications at < 'hambers are directed to be made by these llules." Applications to a ('ountj'^ Court Judge are only to be b^' sumuums I matters in whioli ('. C. Judges have, under Itule 412, authority elegati'd to them as officers in tiieir ('oiinties of the High (,'ourt, o in A^i.^t,"- -... .. co-ordinate jurisdiction witli the Master in Chambers. Where they act by virtue of their jurisdiction in ( Jounty (Jourt actions, tlie prac- tice under iiule 4!)0, is the same as in the Higii Court and tiieiefore applications must be by notice under Rule 404 (Broivii v. McKctvda, 18 C. L. J. '203). {«) A summons shall be in the form No. 108 in Appendix (H) hereto, with such variations as circum- stances require. It shall be addressed to all the per- sons on whom it is to be served. {Sec R. Sup. C, April, 1880, R. 34.) {a) The luiiglish llule is the same. {h) A summons shall be prepared by the applicant or his solicitor, and shall be si<^ned b)' the proper officer and when so sii;"ned shall be dt^emcd to be issued. The person obtaining a summons shall leave a copy thereof with the officer signing the same. {See R. Sup. C, April, 1880. R. 35.) ^ ' . (/)) The Hngiish lUile requires the summons to be sealed instead , contains a like provision with reference to mattei's before tlic Clerk of the Crown. A case may be brought before a Judge under this llule upon a cerfcilicate of the officer that in his opinion the case is a proper one to bo licard by a Judge ; otherwise ai>plications witiiin the jurisdic- tion of anv oilicer nuist be disposed of by him (ffid/hc-i v. J'ccs, 9 Pr. i{. SO)'. 427 1 3. Any person affected (,/■) by any order or decision Appeal, of the County Judge or officer aforesaid may appeal therefrom to a Judge of the High Court at Chambers, ('0 Sucli appeal maybe made notwithstanding that the order or decision was in respect of a proceeding or matter as to which the Judge or officer aforesaid had jurisLJiction only by consent. (h) The appeal shall be by motion, on notice served within four days after the decision complained of; or within such further time as may be allowed by a Judge of the High Court or by the County Court Judge or officer aforesaid whose decision is complained of (c) The motion shall be made within eight days after the decision has been made which is appealed against, or within such further time as may be allowed as aforesaid. (Scr R. Sup. C. 1875, Order 35, R. 7; R. Sup. C. 1875, Order 54, R. 4-6 ; Reg. Gen. Hil. T. 1870 ; .sYv 29 I J. C. Q. B., p. 623.) '{'he Iviglish and Upper Canada Rules referred to contaiu 8oniL!\vhat similar provisions with respect to the Master, District> Registrar, ami (Jlerk of the Crown, respectively, though with souie variations. ((/) In such case the Deputy Registrar, Deputy Clerk of the Crown or I.ocal Registrar, shall, on a prosu'p;', being filed in this behalf, transmit to the pro- per olKicer of the High Court of Justice all documents filed in his oflice and required for disposing of the appeal ; and the same shall be transmitted by mail^ ' tM ' .|i- :i'r'' 1 ■ ) ! I i J >l :1 ''I ''S ll !j{ i ■ r::;'^ (■ ' '. i; \ ■ < ■■'J i ■ : ■ } ;'! ; : Ulti , liffl 1'; ^mi - fe' if : ^ r' ■i k I 622 ONTAIUO JUDICATUKE ACT, 1881. Enle 427. prepaid and registered, except where all parties in- terested in such documents file a consent to any other mode of transmission. The said documents shall he returned in like manner when the appeal has been disposed of. iSry R. Sup. C. i875,(^rder 35, Rule 14.) The English Order .S."), Rule 1 \, refers to the removal of a ciisu from the District llegistry, ami ilooa not otlierwise corre^^l)ond with this provision. There is no eorresi)on(ling provision in the iOnghsli Rules. (fc) The appeal shall be no stay of ]jroceedin_i;.s unless so ordered by a .Judge of the High Court or by the Juilge or officer whose decision is complained of (.V/r R. Sup. C. 1875, (^rder 35, R. 8 ; Ih. Order 35. \<- 5-) The English Kule is to the same efi'eet. This Rule governs appeals from tlie Mastoi- in (Jhaniber.s and tliu County .Indgi's and Local Masters acting under IJule A'l'l { Luwhdh v. Cnnndu Fm-Dirrs, '., I C. L. T. 702). The time for appealing runs from the issue of the order and not from the day upon which it was pronounce'd, 9 Pr. R. 448). Where an onler was made on Friday so that two clear days notice of appeal could not be given for the next (!haniber «lay, (.Monday), a])i)lication was made <'x parti' witiiin four days, for leave to bring on the appeal on the following Thursday, but leave was given in>tea(l for the following Monday, and no order was taken out extending the ti lie. Held, not an api)lication for an extension of time, and an ob- jection that the appeal could not he iieard as eigiit days had exjiircd, was overruled (Standard Bank v. Wclh, -29 0. L. J." 71 ; 4 (J. i.. T. l.S-.). Tiie time was extended wh'^rc there was the intention to appeal, but by misapprehension of the new ])ractice, the time was allowed to pass (Duller v. Rohertmit, 9 Pr. I*. 78), also where it was supposed Christmas vacation did not count in computing the time (Sieneinr'KjIU V. Z/f/y-f, 9 Pr. R. 209). See also Loioaoii v. (kinada Farnien, ,iec., 9 Pr.R. 185 ; Carter v. Sluhhs, G Q. B. D. IIG ; Gibbons v. London Financial An.'iocialion, 4 C. P. D. 2(>3. The motion by way of appeal must be made returnable, and not merely be served, within the eight days (Bell v. iV. Staffordshire Ry. Co., 4 Q. B. D. 205). The COS'l'S. application to enlarge, should in general he made within the eight days {Stirling v. Da Barry, 5 Q. B. D. 65). Api)eal3 in the- CJhaucery Division must be set down as fornicrly not later than the preeeding Satunlay {Handy. J'olji/i, '2 ('. ].. T. If)!). This is not I'djuired in the other Divisions, hut the aj>peal is l)rought on like an ordinary motion. Some diiVerenee exists also between the praetice of the (-hy. Div. and that of the other Divisions in regard to Itriiiging on the ai)peal within eight days. The Judges in the Q. I!. J), and C. I'. I), have fre(iuently ovei'iniled f)hjeetions that the appeal is to(j late, and treated the nintioa as a sul)stantive motion t(j reseind an order im- jiroperly made. Thei-e is iidierent jurisdietion in the f 'ourt to vary any order iin})ro|)erly made irrcsjieetivo of the right of nppeal {Lmrri' \. Leea, 7 App. (.'as. ;U) ; ami an application t(.) set aside an order made without knowledge of the faets is not an a]i]ieal, and therefore not within Rule 427 >>. {IIikjIu'k v. Fhiil. 1 ('. I,. T. 7<'-- . Leave to serve short notice of apj)eal should not he ol)t;ni'.ed from the Mastei- in Chamhers, (see 1 C L. T. (514, (34;"),) he has no ])nw{!r to sliorteu tile tinui ). The effect of the |>ri'sent liule is to repeal all former statutes as to costs (except {)erhaps such as give double or treble costs bj' way of a penalty) and to enable the ('ourt except in the cases here mentioned, to deal with costs as it may think j)roper (GariwU v. Jh-(t'//. B. 1). "IG), even where a statute is silent or pro- vides (itluirwisu as to costs (Bx. ]i. Mercer.t Co., 10 (Jh. 1). 481 ; Ex. p. /f t^. I> I). 8'J), noi' sending a case for trial to a County CViurt ( Funiiers v. Mai/, 44 ij. T. 148), removes the case from the jurisdiction of the High ('ourt as to costs. 1'he proceedings must have actually come into Court (He Brand- re.tJi'ii 'rradernark, (^h. D. 618) ; and it is to be obsei'vcd that this Rule only has I'cferenco to costs of proceedings in the High ('ourt, not the Couit of Appeal. This Rule combined with s. '.\'l of tiie Act has .i.nother effect, viz : that exce[)t in the cases of trustees, mortgagees, etc., no appeal in respect of cost-, will be allowed as of right, since; s. \V1 proliiliits appeals in respect of costs, which are by 1 w left to the discretion of the Court, and that discretion where it jxists, is absolute (//(U'/v- hani v. Skaddurk, 10 ( 'h. i). 207). Orders have therefore been held unappealabh- in res])ect of costs of inspection of a mine allowed under Rule ;^08 (Milcliel! v. iJarley Ala'ni t'dllien/ Co., 10 Q. IJ. D. 457) ; costs directed to be paid by a solicitor peisonally by reason of misconduct or negligence [He Brad- ford, 32 W. It. 2:i8 ; 50 L. T. 170, overruling S. ( '. 1 1 (}. B. 1). :m) ; costs directed to be paid to a tlefendant by a co-defendant though there was no issue lietween thein ((Jhurrh v. Fuller, H Out. 417 ; see also Riidow v. Great Britain Asmtrance Co., 17 Ch. D. 60O) ; costs directeil to be paid by defendant and given over against a third party (Horubji \. Cantwell, 8 (i. B. I>. 320) ; and costs dealt with before the trial and directed to be borne by one party "in any event" ( Vicari/ V. Great Northern Ry. Co., 9 Q. B. D. 168) See notes to sec. 32, p. ."il supra. Costs are not in the discret'on of the (^ourt. o.nd therefore the proper subject of an appeal where they come wifchi;; the excei)tional cases in this Rule. Thus where a residuary legatee or executor v r; ■; j.-or'pedings for the administration of his testator's estate, lie i. ei . ' co costs out of the estate unless there are special grounds !" :i -priving him of them, and thiu rule is preserved by the prese, iule so that thc^^e costs are not in the discretion of the Court (Furrow v. Au.stin, 18 Ch. 1*. 58) followed as to the costs of residuary legatees in He Woodha/l, Oarhutt v. llewson, 2 Unt. R. 456 ; see also Croi/fjaii v. Alien, 22 Ch. D. 101 ; Johnstone v. Cox, 1!) Ch. D. 17 ; Tarntrv. Hancock, 20 Ch. D. 303 ; lie GhenneU, 8 Ch. D. 492). Where a COSTS. 525 settlement 13 set aside, aeo Dntton v. '/'ho>n.p.Hu)i, '-'S Ch. 1). 27S, in Rule 428- note to Jiul. Act. see. 32, as to the tnistet;s' eosts. Trusteus wlio have been guilty of iiii[)ropriuty of eoiiduet may ij>j(leprivcil ot costs in the discretion of the (.'ourt {J'c //(/.s7i't//'.s Tru.sta, (i l>h. I). 'JSl ; Tiirnt'r v. Ilaiicurk, sii/i.; lie C'd'ilmni, 0), u|>oii an a[)niii;ation mile wit'iiu reason iblt; tini;! after tiie trial [liiiwcil V. Bell, 4 (^. H. D. y.")). lUit where the .Judge lias exei'cised his alternativ'e jurisdiction the iJivisifmal Court luis, it would seem, no jurisdiction to tuitertiiii an appjal from his order (M; a decision of a Judge may be re- viewed by the Divisional (Jourt under iiule TilO, (Slti <\. Eule 428. !*• '^- -^ ! M'ii'.-iit may consider his eoii- (Uict previous to and conducing to the litigation. He must, howciver, assume the truth of the facts found by the jury [Kuritctt v. Vine, f) \\\. 1). :;(>7i. 'I'hc discri'tion is a judici.il one, and a [)laintitl' \\\u\ successfully enforces a legal right, and in no way miseoiidiuds himself, may not be (U'prived of costs, hut is entitled to them as of right (Cofi/nr y. W/iitliiiijtoii, \:>i'h. I). ">(M ; 7'A- Com/or, 4 1'. 1». I'.M* ; ('/>iii,iit v. Forcslrr. 2-H'h. D.'J.Sl ; (Inodlmrt v. ////'//, 'J.') Ch. I). KS'J). So the Judge cannot, except under sonu' special Statute, impose costs be^-oiid the costs of suit by way of penalty. His discretiou, how- ever, extends to ordering a defi'udant to [lay half costs ( Wiluiolt v. liiirlwr, 1.") < 'h. I ). iMi ; 17 <'h. I). 77-), or no more costs than the verdict I //inicnc/: v. Jftt/e, '2H Sol. Jour. '2',H), wheic only il2\ Mas re- covered on a much larger claim) ; to refusing costs where imjirojicr charges are niaih; and not sustained, or dii'ecting i)ayment of the o[)- posite pai'ty's costs of such charges (see A'cil v. Winter, 1> (ir. "Jlii ; Hoihjhis \. Mryi'tl, ill. .SO.'); MvKciizlr v. YiclidiKj, II (ir. 40()) or ■where a party otherwise ndsconducts himself, as by m. iking an mi- truthful answer (Fitilujintn v Mnl/iinl, lOlir. l.SO) ; or unueeessaiily bringing a suit (/>'nV/«7 v. \['ilsoii, It) (Ir. lioo ; iSpriniicr v. Viarl-c, 15 (ir. (i(i4 ; Faww Faw, i;t Ch. D. 2--'8 ; Rt Cahhiirn, 40 L. T. 848; W. N. 1882, {)'!) ; even in the case of a mortgagee (McLcdit, V. Cross, .S ( 'hy. ( 'h. 4.'{'2) ; and the discretion also extends to costs dealt with l)cfoJe liie trial, so that they may be diiected to he borne by one jjarty in anv event ( I'iciin/ v. Great Xorthcr)i Jiij. Co., 9Q. B. I). KJS). The fact that the action was brought without lirst making an application to ileft-ndant for tlie relief sought, w.is not considered sutHcient to (le[)rive plaintiff of costs under the cireumstanecs in Good/tart v. Hi/ett, 25 Ch. D. 182. \ Judge before whom a secou,di (A)urt" witliiii tliis Uiilc, Imt witlnlfawii fi'diii it by aiiai^rrt'im^it of tlic |paities, juul, the parties iiaviiiji atrreid ti) its terms, the ( 'oiiit eiiuld not aild U> it, and had no power to 'j;ivij ciists ( WiinshurM v Hurroio S/iiji Jini/'/iiii/ Co., '_' (}. li. J). XiPi}. As has lujen imMitioned tliis Kule re]ie;ds picviou.s statutes whieli provide foi'fosts ;,'oing in any [laiticnlar wav [(litriii It \. Itrailli ii.',\ App. ( 'a. !H4). If this Itule atfeets the provisions of the ('. 1.. 1*. Act as to suits witiiin tlie oonipetenee of a < 'ounty or Division ('ourt. th(^ ( Umvt, in tliu exereise of its disei'etion in sueh eases, would proliaMy act in ac'coi'danee with the statutory enaetnients on the suiijeet (contained ill 1;. S. (). e. ;")((, s. ;-J47, which are as follows : " ;i47. In ca.'fe a suit of the pro|ier eonipi'teiu'e of .a <'oui.ty < (tin I j'<'V- i^iai. c. is iiiiiu.;iit in either of tlie Siiperioi- ('ouits of Connnon l.a-, or in '''•■*• ^'*'' f.ise a suit of the jirojier eoinpeteiieo of a iJivision ( "oin t is lir(Ui;.dit ill either of sueh Superioi' ( 'ourts, oi- in a < 'ounty ( 'ourt, the eosts shall he taxetl in the manner hori'inafter mentioned. " I, In case the Judge wlio ]U'esides at the trial of the cause, certihes in open Court, immediately after the verdi<;t has l.eeu rendered, or at any future time to which he may then postpone' the tdiisideration of granting or refusing thi' eertiiieatt% that it is a lit cause to he witlulrawn from the ('ounty Couit or Division ). 'I'o remedy tiiis tlie following ilule was made (see W'/i'UihinU v, Tait, sup.) : — Soaio wiirrc [^^- '" casc of trial by jury, and the JucIl^^c or judgiMiuk.M (j,),^,,.(- makes no order rcspectiiv"" tlie costs, under Kulc no oilier. . i n i 428, tlic taxation of costs shall be under such scale of allowance only as would iiave been applicable before the passing of the Judicature Act ; and the e\'ent sh.ill in such case be to recover costs accord ini^ to such scale, subject to such rii^'hts t)f set off as to costs as a))ply under the Common Law Procedure Act]. Where the " event " is the result of a single issue, the sueeessful party will be entitled (subject to any special order made by the Judge) to costs according to the amount recovered. Cases whoro Where however there are '"Veral issues or there is a counter-el.iim several ;i„,| -neither plaintitl' nor de^Jiidant is wlndiy succes.-iful, diliiculty has arisen in detei'inining what tiie " event " is which the co.sts .M,re to follow. It has been held that the word "event" in this llule is complex, and must be read distributively as regards distinct causes of action. 'I'lie general costs of the cause follow the judgment, hut the costs of the particular issues must i)e respi^etivel}' taxed iti favour of the party who has succeeded 011 them {Mi/crs v. /Jcfrii'tsi Ex. D. at p. 180 ; Stookc v. Tni/lur, o Q. \'>. I), oti!), in which tiie previous case of Stapli's v. Voini;/, '2 Ex. IJ. '.i'24, was not aiijji'oved of ; see also J'Jllia v. Desili-a, (5 Q. B. D. iV21 ; Wiirhnj v. Pturnian, 32 W. 11. A-ld). In each issue the " event " is the result of all the proceedings in- cidental to the litigation, and the costs which follow tliu evi'ut include the costs of all the stages of that litigation ; and therefore where a new trial «'as had and the iilaintiff on the seeonil trial re- covered a verdict, he was held entitled to the costs of the lirst tiial as part of the costs of the action (Field v. Gn-at Northern Jly. 3 lOx. 1). 2G1 ; Creen v. Wright, '1 C. P. D. 354). In Abbott V. Andrews, 8 Q. B. D. 648, where the plaintiff suc- ceeded on some issues but was nonsuited on others, no order being made as to costs, the defendant was held entitled to costs of issues on which the plaintiff was nonsuited, and the plaintiff to the other costs, including the general costs of the cause. Wliere a judgment is ambiguous as to costs, ai)plication should be made to the Judge to pronounced it to correct the ambiguity. It is not proper to bring the matter uj) on an appeal from the taxing officer (lb. ) . Sparroic v. Hill, 8 Q. B. D. 479, may also be referred to, though in that case the Judge made an order as to costs. There the plaintiff succeedetl on three heads of his claim and was awarded costs in respect of the amounts recovered, and the defendant was given costs in respect of the rest. Therefore the plaintiff was held entitled to the general costs of the cause excepting those which related to the issues on which he had failed, and the defendant was given his costs of the latter issues. WL ii - (luciaiou 111 COSTS. 529 III cases in which thero are conntor-claims moat diliicnlfcy occura. Rni^ 423. There wouhl seem to he a diatinction hotwetai cases wlit!rn a de- casuB nl' fenil.viit Hota up u couiitcr-eliiitn in the 11 itiire (if a set off of a doht or <">iiiiier liquidated claim, and a couiiter-claiMi for uidi<[iiidated tlaniauus. ln^^l^i'"- the latter case tht; plaiiitiil' cannot forcHcr that the dcfomlant will set up tho counter-claim, hut may prefer to !)riny a cross-action, while in tlie former cast;, hi' mut't know of tho existence of the claim and should give credit for it, if good. (Sec llcriUKji: v. Fitnl, 71 Ij. 'I'. Jour. :]\'A; .Stoukev. Tui/lor, infra). Therefore where the plaintit!' establishes his claim and th(! dcifend- Set-off ant a set olV of an ei]iial or grt.'ater amount, the defendant has Biict'eeded and the plaintiff failed ami tlic dtifendant is therefore entitled to coits of the action (Stmtke v. Tdjihir, f) Q. 15. I), i")7(J ; Bain?H V. Uroinlrj/fiiQ. \i. I). 7!)i ; /I''rU(U/c v. Ford, xuj).). On the other hand where '!ie plaintiff establislies a claim and tho defendant est.ihlishes a counto; -claim in the iriturc! of a cro.ss-action i. e i)oth claim and counbe;-oiaim ai'e successful, the plaintill' is entitled to the (:().st3 of the action (without any ai)portionnient of cliar.,'es common to both claim and (;ounter-claim), and the defend- ant to such costs oidy as are properly attributable to the e umter- claim (Jie Brown, Ward v. Mor.-n', 'l',\ (!h. 1). .S77 ; Stookc v. '/'(lylur, mipni. ; Gray V. Daindxon, i'Lx. I) IS'.); ICIIU v. Dcn'ilnt. «> t^. B. D. r)'JI). This gives the general costs of the action not to the party recovering the most, or to tlie party to whom tlie litigation is on the whole favour.iblt;, but to the plaintiff {Jiaincs v. linnnlii/, unpra ; Penrnun v. /t'i/iliy, .'!'_' W. 15. 4();{), whether the balancjc is in favour of the i>laintdr (Ual'mmi v. Prn-r, 41 L. T. Gil ; '11 \V. 1!. 4'.)0), or the defendant (AV Uruwn, Ward v. Morse, .•rn). See also Warin;/ v. Pearrnan, '.VI W. R. 42!) ; and Coiajhlin v. Ilolli.nij.twortk, 20 (J. \j. J. 107, where costs were directed to b^; taxed upon this principle, and judgtuent was directed to be entered for the balance which should be found for either party. So in Bojv.b'r v. Kenlcvrn, 47 1^. T. 515, the plaintiff claimed £49, 17s., the defendant admitted r.hecliim and counter-claimed fur £liy, ju.iguient was for the plaintiff on tho claim admitted and eo.sts, ancl for the defendant for £40 and costs. It was held that the plaintiff was entitled to costs up t), and including the statement of defence and the defendant to costs after that time. Similarly, where the claim and counter-claim are both dismissed, the plaintiff is to pay the defendant the general costs of the action, and the defendant has oidy to piy the sum by which the costs have biicn increased by the counter-claim {Sanar v. liitton, 11 Cli. D. 410 ; i}Li.wn v. JJrenlini, 15 Ch. 1). 287). Where the claim was dismissed without costs, and the counter- claim with coats, the Judge ordered defendant to pay half plaintiff's costs, as a convenient mode of settling the matter ( WilnioU v. Burher, 15 Ch. D. 96 ; 17 Ch. D. 774). In Chntfield v. Sedjwick, 4 0. P. D. 459, the plaintiff claimed a Buui exceeding £.")0. The defendant pleaded a set-off', and also made a counter-claim for goods to the amount of about £24, The action was referred to a Master, costs to abitie the event. The Master certified that there was due to the plaintiff on the claim £16, and to the . ."iS'J, th(ni;;h thfi (li'cisioii iLsulf is aj)|ir(ivt (I ol' as In iiccunianci- with the iiriiici|ii( » aliovi! iiii'iitidiit (I, hciaiiHf t.lie (ift'cinlaiit 57!, and in i';ivou! nf till' defendants ioi- .L'.STi"). 'I lie Court, on ii|ijical from tlie l)istiut lle;;istrar wlio iiad given the costs of the cause to tlie defendants, ordered " the eo.-its of, and relating; to the plaintilla elaini. and the proof theri'of to he. naid by the defendants, and the costs of, nnd relating to the defeiidant.s' coiintcr-claiin, ami the proof thereof, to ht: jiaiii hy the piaiiitdi's" (T'li/c, M'i,r/i(iiit r. 471 ; Skelhj V. Skelly, 18 (ir. 495), but not where a defendant out of the urisdiction was unnecessarily added (Scott v. Burnham, 19 (Jr. 2;^8) ; n mortgage cases, though the amount due plaintiff was less than $200, RCALKS f>K COSTS. if therci was aH«f>R(!(|iu'nt imnimlitanofrfo whom morct than that r^um wiiH il\u'{/fi/in). In the last case the fact that an injunction had heen applied for was also an eli'meiit in the decision, hut the neocsj^ity for an injunc- tion does not alone entitle to costs on the hi;zhi;i' scale, as a < ounty Court might '.rant an injunction in cases in other respects within ita jurisdiction {Ru v. VVim, 8 I'r. II. ttJa). The f.ict of tlu- tdle to land hjing in iiucstioii did not oust the jurisdiction of the County C'ouit on its er^uity side (ih. ). Oases relatiiiL' to adndnifitration actions are not important since Chy. !ie surety may be sufficient. The number is in the discretion of till' otHctir before whom the question of the allowance of the security comes {F/ctcfur v. Noble, 19 C. L. J. 253). A defendant is prima facie but not necessarily entitled to security because the plaintiff's residence is out of the jurisdiction. If it be niaile apparent from evidence which the (,'ourt can look at (such as defendant's admissions on examination), that thei-e is no dtftnce, seciiiity will not l)e ordered, or a /(rcEcii'c order will be set aside ( iJoerr V. Rand. 20 t). L. J. 83. 71 ; 4 (J. L. T. 91 ; De St. Martin v JJavin, W. N. IS8t, Sf) ; 28 Sol. Jour. 392). The following arc some of the principal cases relating to security for costs : Residence out of jurisdiction. A jilaintiff wilfully giving a tictitioua address within the jurisdic- ti:ni, thouf.'h really living without, will be ordered to give security (WaldronV. McWaltur, 6 Pr. I!. 145; Sutherland v. McDonald, 9 Pr. II. 178) ; and where this is done the order will not be discharged merely because the tdaintiff comes to reside within the jurisdi'jtion («/>). A sole pLiintilf residing out of the jurisdiction, will prinia facie be ob'.i:,'eil to give security (Dan. Pr. 28 ; Hepublic of Costa Jlica v. ErhuKjcr, 3 Ch. D. 02) ; but not if the residence abroad is of a temporary character [Cole v. Br)nu,stj(e v. Grey, 10 Q. B. D 13) ; or the plaiiitilf is serving abroad in the army or navy {Ere.lyv v. Vhipixndak, 9 .Sim. 497 ; Jurrinrj v. Chiffenden, 7 i owl. Z\\C> ; Dickinson v. Vntfill, 1 ( hy.Ch. 108) ; or if the plaintiff before suit comes t') reside within the juris- diction, even thougli it be only to avoid givin;' security and intends to return after judgment ( Wilder v. J/opkins, 4 I'r. 11. 350 ; liedundo V. Cltnytor, 4 (^. B. 1). 453) ; or if a subject and at the time resident within the jurisdiction though his movements be uncertain (Allen v. iJlohe, Globe, 1 Dec. 1881 ; Oa^-diner v. Harris, 8 L. II. Ir. 352). Defendants were held not entitleil to security f'-oia plaintiff's who sued as executors, and who, under a power of attorney from English executors, took out probate in Ontario, of the will of a testator, who resided and died in England (Sijkes v. Canada Facijic Jiy., 3 0. L. T. 505). SECURITY FOR COSTS. 533 As to what constitutes " resilience" abroad see Re Trench, ex. p. Rnie 429. Brandon, 25 Ch. D. 500. If the plaintiff lias substantial pro[ierty within the jurisdiction, of nut nut if he the value of .$400, avail;U)!t; in execution this may be shewn in 'i'-' pi'<'||rniia Jarw (i-^>i*-' ^aii;nXiction. made by proof of residence out of the jurisilicfciou {Oatilt v. Sj>:'iir('.r, 2 Chy. Ch 92), or it may be ?nade the ground for a speci d motiim to discharge any order wh'cli has been made on prcB!tl/>c fur security (Oanson v. Finch, ,3 Chy. Ch 2:(6). It would not seem, according to the latest cases, to make any diirerence whether tlie property be real or personal {Ilamhurger v. PotUim;, 30 W. I!. 7t>' ; 47 L. T. 241) ; Rciluiidu V. Ch Vr. R. 147 ; Mr.Kemle v. Siiiton, 6 Pr. II. 282 ;' 'iVUsou v. U'iUon, I'r. R. 152 ; Swinhonrne v. Carter, 2.3 L J. Q. B. 1(J). Hut the ac(iusi- tion of property sulisequently to an order for security is no riiason for dischar;iirii.' it (/i''rf«AMr- v. Loamtt, & Pr. R. 70). If tlie posses- sion of sutlicient property at the time of ajjplying for a pncipe order was known to the defendant's solicitor this may be a reason for discliafging the order with c^^^ts, (Ganson v. Finch, tuijira). If a plaintifif returns to reside pcrm.anently within the jurisilietion an order for security may be discharged (Hurreu v. Smith. 1 C!hy. Ch. 092) unless obtiiued l)ecause the plaintitF had wilfully mi.sstiited his residence (see Waldron v. McWaUcr, .sup.), but if the ( 'ourt thinks tlie return is merely to get rid of the order, and the plaintiff has no ties, business or otherwise, to guarantee that he will remain within tlie jurisdiction, the order will be rescinded {Mar.sh v. Beard, 1 Chy. Ch. .390). If a jdaintiff goes out of the jurisdictiun pending action, he may he refjuireil to give secuiity for both past and future costs (.Ua.sseij V. Allen, 12 Ch. I). 807). Security may also be ordereil if the plaintiff is insolvent and the Nominal suit is in reality foi- the benefit of some other })erson {Mason v. l''^''"'"^' Jefm/, 2 Chy.'Ch. 15; Little v. Wrviht. It) (Jr, 571); J'nidn/ v. OWeill, 7 Pr! P. 52 , Boice v. O Loan'e, 7 I'r. R. 359). So wiiere the plaintiff is only one of a large numlier interested and the Court is satislied that he lias been put forward liy thi' otliors to institute the suit, and lie is a man of no means {llattuoaii v. Dolj, 9 Pr. P.. 91 ; Clark v. Si. Catharine.'^, 20 C. L. .1. 33 ; 4 C' I,. T. Oh. Hut an assignee ir ' 'solvency Iwna fide suing in the discharge of his duty will not be ordered to give security, though without means aiul not beneficially interested ( Kof.s v. (lonld, 8 Pi\ 11. 31); lior will a receiver of an insolvent conipany continuing, by order of the ( Joiirt, an action brought Ijy tiie company (Froiuncial /«.s. Co. v. Gooderhani, 7 Pr. R. 283). Wiiere the plaintiff parts with his interest pemlente lite, further proceedings ni.ay be stayed until security is given or the suit revived in tlie name of the assignee (Sin:tn v. A'lams, 7 Pr. R. 147 ; see also Stear v. Bawson, 1(5 Co. \). 121, and Goattci/ v. Enniott, 15 C. B. 291). Poverty of the plaintiff is no ground alone for asking security {R01H V. Jnrijue.s, 8 .\1.& W. 135), but insolvency is, under the Insol- vent Act of 1875 (see s. 39, and Brocklehantc v. Kim/.-i Ljnn Steam- ship Co., 3 C. P. D. 305). Where the Insolvent Act of 1875 applies, and an undischarged in- solveut sues, see. 39 of that Act is imperative and entitles the de- .'') 11 h w , !t 1 ' ft-:: Another action i>('Ti(l ing abroad. Costs of former suit unpaid. Succi'ssivc actiiiii.siif ejeutiueiit. Suits for penalties. 534 ONTARIO JUDICATURE ACT, 18S1. Rule 429. fendant to secuiity as of right {Humphries v. Ramttny, 7 Pr. R. 189) ; and will he f:?rante(l since the repeal of the Insolvent Act, in any case where the insolvent's estate had vested in the Assignee prior to the repea' (( 'oapcr v. Kirkptttrkk, 8 Pr. R. 248) ; and though the defendant had dealt with tlie plaintift" knowing him to he an insolvent (f'a?To// V. Wil/ianix, '2 i'. L T. 151). The right may however be waived by not ajjplying at a ])roper stage of the cause (ItohertHon v. McMnstcr, 8 I'r. Ii. I4j. The vule as to when it is too late to apply is not the same, liowover, as formerly. (See note p. W'i). .Security may also he; ;i]);)lied for undei' some special st^itutory pro- visions, e (/., {]) where another suit is pending in respect of the same matter M'itliin or witliout tho Province (i^. S. (). o. 50, ss. 70, 72 ; c. !0, .s.s. 97. 9S) ; {-) wiierc costs of a former .suit in resjiectof the same matter are unpaid CU> ) ; not howev(!r wlierc the costs of the former suit were not payahle by the plaintiff but out of an estate {Curtin v. .VrXithh. 7 Pr. K. 24(5) ; {'A) where successive actions of ejectment are i>rought(R.. S. (). c 51, s. 7^^) ; {Sro. Annitroni/v. Monlijuuieni, 5 Pr. II. 4()l and Chiimhprs v. (Tinier, I'r. R. lOM ; and (4) in actions for ])enalties, on .m affidavit of merits and showing that the informer is not p(mscsHed of sufficient means to answer for costs (It. S. O. c. 50, s. 71). Anotlicrsull To luing a case within the first of the above tiiactnuiits it must pending. |,., oleai'ly shewn that tlic causes of action arc identically the same and not merely growing out of the same transaction {Dean v. Lam- prey, 2 (."hy. Oh. 202. .^et? also CaKveU v. Murray, 18 C. L. J. 7(;, and Martin v. lieaurlianij). 25 ('h. \). 12). Where some of the causes of action in a second action were the same as in a former action, the plaintift' having disi'ontiuued as to those, the (Jourt refused to stay the second action in respect of tiie new causes of action {Bywa/er v. Duuue, 10 L. R, Ir. .SSO). Where an action by a married woman by her next friend was dis- missed witli costs for want of prosecuticm, a secoml actifui on her behalf for the same object but by a new next friend was stayed till the costs of the first action were paid {Jie Payne, Handle v. Paijue, 23 Ch. \). 288). Qufrre whether security will be ordered in a vexatious or frivolous action {Potter v. (,'otton, W. N. 1879, 204). It will not bo ordered in an alimony suit {Bennett v. Bennett, 7 Pr. Ii. 54). Security if applied for promptly, is generally for past as well as fut-.ure costs { Brack! eMink v. Kintf'a Li/nn, s. made a counter-claim for breaches of the same coii^ract by the plaintid', elaiuung damages to an amount less than the plaintiff's claim, it was held that the defendant could not be ordered to give security for tlie plaintitl's costs occasioned by the counter-claim {M'.iplcson V. Afnsiiu, ri Q. B. !>. 144). -So in ])rosecuting a claim to land before the iJeferee of Cities, a ontcistaiit served witli notice will not be prevented from asserting his riglits until payment of costs of proceedings instituted by him against tin.' claimant, in res- pect of the property in (juestion, ord(!red to be ])aid by the contestant (Sh'phcrd V. /fiu/hdU, Mi (ir. (Wl). See also AV Pririj ,i- Kcl/i/ Nkhd, A-c, Co., - Ch. 1). o.SI. Wliere a defendant admitted the cau^e of action sued upon and set up a counter-claim founded upon a distinct transaction, he was held not entitleil to security for costs from the plaintiff, a foreigner, residing without the jurisdiction ( Wlntrrjidd v. Bni'lnum, '^ Q. B. i). 324). In the \dmiralty Division, in an action of collision, a defendant claiming damages by counter-claim was ordereil to give security for the plaintiff 's costs of the action (The Ju'la Fisher, 2 B. I). 115). 430 3. Where a bond is to be given as .security for co.sts,gge^rity for it shall, unless the Court or a ludfre otherwise directs, <'"st^"V'""'' , . , •' ^ . . , . given bjr be j^iven to the party or [persons requu-ing' the security, boud. and not to an officer of the Court. [Ser R. Sup. C, April, i proceedings till secuiity was given, and by the (Jhancery practice or under 42 Vict. c. 1 5, a. 2, a subsequent application might be made TAXATION OF COSTS — COPIES. 637 to limit a time. In default of compliance with an onler where no Rules time has been limited, a motion may still be made according to the 431-433, former practice to limit the time, or in default to dismiss the .iction for want of prosecution (La Oraiiffe v. Mc Andrew, 4 (^. l'>. \>. 210; White v. lirornvje, \V. N. 1878, 'J8). If the plaintift' then wishes to give security he must pay the defendant's costs of the application (e.c parte. Isaacs 10 Ch. D. 1). Wiiere an order has limited a time and provided for dismissal in case of default, a subsequent ex }>arte motion shewing default lias been customary in Ontario to obtain the dismissal of the action. (See Burns v. Chhlwlni, '2 Chy. Ch. 88). See also p. 342 supra. 432 5. Until a tariff of fees payable in stamps or (-ther- stamps. wise is provided by Rule of Court, approved by the Lieutenant-Governor in Council, the fees to be so payable shall be the fees now so payable on similar proceedin_i;s (if any) in the Courts of Queen's Bench and Common Pleas ; and where there is no similar proceeding in those Courts, the fees to be so paid shall be the fees now payable on similar proceedings in the Court of Chancery. There is no corresponding Knglish Rule. This iiule has not the effect of making the former Q. B. tarifl' of disburseiiicnts govern the fees payable to a Local Master who is not paid by salary, in such case sec. 61 of tiie Act preservus his riglit to be paid fees according to the former Chancery tarilV of disburse- ments (McUannon v. (Uarke, !) Fr. R. 5.55). AVhere a trial was postponed defendant to pay costs : Held, no second fee was payable to tlie Deputy (Jlerk upon entry of tlie action for trial at the later Assizes, or for certifying the record or jury fees [Morton v. G. T. Rij. Co., 19 C. L. J. .S53, Ti'l). No general tariff of disbursements has yet been framed. The fees payable in stamjis or otherwise are therefore pay ibl.j under the fol- lowing authorities : — (1) As to fees payable to Kegistrars, the Cleik of Records and Writs, Taxing Officers, the Clerk of the I'rocess, and Deputy and Local Registrars, — according to the tariff of T. T. 1856, where applicable and as modihed by R. S. O. c. "21, s. 16, the Act respecting Law Stamps (See Harrison, C. L. P. Act 755) ; (2) As to certain ader folio ; with that exception, the two Rules iire tlie same. 7. Where a petition in any cause or matter is served, and notice is given to the party served that in case of his ap[)earance in Court his costs will be objected to, and accompanied by a tender of costs for perusing the same, the amount to be tendered shall be $5. The party making such payment shall be allowed the same in his costs, provided such service was proper, but not otherwise ; but this order is without prejudice to the rights of either party to costs, or to object to costs where no such tender is made, or where the Court or Judge shall consider the party entitled, notwithstand- ing such notice or tender, to appear in Court. (Comp. R' Sup. C, Aug. 12, 1875, "Costs," R. 17.) This Rule corresponds with the lirst part of the English Rule ref Tred to, except that the latter is conlineil to the Chy. Div., and names £2 '2s. instead of $5 as the amount to be tendered. This Rule only applies in the ease of a petition. In lie Sutton, W. N. 188-J, G8 ; 46 L. T. 70, trustees respondents t(j a petition under the Triistee Relief Act who had been tendered costs under the corresponding English Rule, were refused costs of aj)])earing as their appearance was not necessary to give the Court information. \n Someit v. Martin, W. N. 18S2, 113, mortgagees of interests of persons entitled under a will having been served and not having been tendered costs, were allowed costs of api)earing on a petition for construction of a will. . 435 Disaiiovr- 8. The Court or Judge may, at the hearing of any oniimrea-^ causc or matter, or upon any application or procedure in any cause or matter in Court or at Chambers, and whether the same is objected to or not, direct the costs of any pleading, affidavit, evidence, notice to cross- examine witnesses, account, statement, or other pro- ceeding, or any part thereof, which is improper, unnecessary, or contains unnecessary matter, or is of aarjr pro- ceediiigs. 8KT OFF OF COSTS. 539 unnecessary length, to be disallowed ; or may direct Bnlos the taxin_fT officer to look into the same and to disallow ^^^i *38. the costs thereof, or of such part thereof, as he shall find to be improper, unnecessary, or to contain un- necessary matttM', or to be of unnecessary lent^th. In such case the party whose costs are so disallowed shall pa)' the costs occasioned to the other parties by such unnecessary pmcecdintj-, matter, or lent!jth ; and in any case where such question shall not have been raised before and dealt with by the Court or Jud^^e, the taxing officer may look into the same (and, as to evidence, althou'^h the same may be entered as read in any decree or order) for the purpose aforesaid, and thereupon the same consequences shall ensue as if he had been specially directed to do so. (R. Sup. C, I2th Aug., 1875, " Costs," R. 18.) Same as tho Krijilisli llulc, and fuundtd on Kng. Chy. Ordor 40, Rules <) & 10 (see Morgan Orders, 4th ed., 581). The Master must inquire on taxation into tho propriety of pro- ceedings in an action, though not specially directed to do so ; and he cannot refuse to do so where an order is niatle to stay proceedings on pavnieut of costs (B'titips v. Wormi^ley, 47 Ij. J. ("hy. 844 ; ,39 T-i. T. 85). For the practice as to taxation of costs of an abandoned motion, or on discontinuance of action, see Harrii^on v. Lcntnfr, Hi ( !h. D. of)!). A direction in an order for a commission in the common form (see No. 129. in App. H.) that the costs are to l)e costs in the; oau.si!, does not |)rechiile tlie taxing o.iicer from disallowing the costs on the ground that the evidence has not been used (Dominion, f nil ^lli 510 ONTARIO JUDICATURE ACT, 1881. Rules This Rule iloes not apply to difforeat actions between the same 436-433 parties but only to costs incurred in the same action or proceeding (Uarbr V. ll.-iainin;/, 5 Q. B. I>. 60i»). Tliua where, by an award in an action, the plaintiff was ordered to pay a sum of money to the defendant, and the defendant was ordered to pay t'le plaintiff a pirt of iiis costs when taxed, it w;is held tliat the defendant was entitled to have the de!)t set off against the taxed costs, and that the right to set-off in such a case was not interfered with by the ordinary solicitor's lien for costs (Priwjle v. Gloan, 10 (Jii. D. 676). A cliange of solicitor is immaterial if the costs are in the same proceeding {/'uhartu v. Bu^.e, 8 C!h. D. 198). In the case of cross-judgments {not within this Rule), in two dif" fereiit proceedings, tiie lien of tiie solicitor will prevail and preven* a set-olf (see IIhih v. Mahay, 7 I'r. 11. !)7 ; Cathhcrt v. Commerria'' '/'raue'lcru A.'ixDCuition, 7 I'r Ch. G.i ; A'e Harrold, Wildt 518). \\. 205; Wi'lih V. McArthur, 4 ( 'hy. V. Will ford, 48 L. T. 852 ; lil W. ii. 437 Unni'iu's.snry ai>|iu.'tniii(;ti lo. Where any party appears upon application or .i'^'JiauX"^ proceed in^^ in Court or at Chambers, in which he is not interested, or upon which, accordini^ to the prac- tice of the Court, he ou^ht not to attend, he is not to be allowed any costs of such appearance, unless the Court or Judg-e shall expressly direct such costs to be allowed. (R. Sup. C, 12th Aug., 1875, "Costs," R. 21.) Identical with the English llule. See Hng. Chv. Ord. 40, I!. 23 (Morgan Orders, 4th ed., p. 389). Where the costs of a sherill' in an interpleader matter had buen ordere I to be paid by the claimant, tlie claimant appealed, contend- ing that the execution creditor should pay them. Both were ;i,!)le to pay. The sheriil' was not allowed costs of appearing on the appeal (ex. p. Welh^ler, Be Morris, 22 Ch. D. 13(5). In O'lirieii v. Bull, 19 C L. J. 211, a sheriff unnecessai'ily served with notice of motion for final order in an interpleader matter was allowed costs of appearing (see also Robertson v. Grant, 3 Ohy. (Jh. 331). (Josts of a person appearing to object that there is no jurisdiction (Great Xurthern v. Inett, 2 Q. B. D. 284), or quia timet that by mis- take an order will be made against him (Lucas v. Fraser, 9 Pr. 1!. 319), will be given, but not of a person not interested and appearing merely to ask costs (CampheJl v. Holi/land, 7 Ch. I). 175). The Court cannot prevent the appearance of persons entitled to appear, but may sometimes protect an estate by allowing only one set of costs to several parties (Lees v. Stanlej/, 28 Sol. Jourii. 415). 433 Oeneral powers of i'lxing OlUuttl't. II. There shall be two or more taxing officers of the Supreme Court ; and they and each of them shall for the purpose of any proceeding before them or him, have power and authority to administer oaths, and shall, in relation to the taxation of costs, perform all I REVISION OF TAXATION. 541 such duties as have heretofore been performed by the Rules Rej,nstrar of the Court of Appeal or by any of the *^^« *3^' Masters, Taxing Officers, Rcj^istrars, Deputy Hegis- trars, or other officers of any of the Courts whose juris- diction is by the Act vested in the Hii^h (]!ourt of Justice or Court of Appeal ; and shall, in respect thereof, have such powers and authorities as previous to the commencement of the Act were vested in any of such officers, including examining witnesses, direct- ing production of books, papers, and documents, mak- ing separate certificates or allocaturs, requiring any party to be represented by a separate solicitor ; and to direct and adopt all such other proceedings as could be directed and adopted by any such officer on refer- ences for taxation of costs, and taking accounts of what is due in respect of such costs, and such other accounts connected therewith as may be directed by the Court or a Judge. (R. Sup. C, 12th August, 1875, " Costs," R. 23.) The provision at the beginning of this Rule, that there shall be two Taxing Masters of the Supreme Court, is not in the English Ivulu. The existing oHicera referred to are not all the same in tho two Rules. T'he Rules otherwise are sub.stantially to the same effect. 439 12. The preceding Rule shall not be construed as Revision nf interfering with the power heretofore possessed by ^'"'* "* ''"'**• local officers to tax costs. In actions therefor where there is a reference to a Local Master generally or for taxation, he will tax costs as formerly, under the (Jhy. practice ; and where a judgment is to be entered in an outer County, costs will be taxed as formerly at Common Law, by the Deputy Clerk or other officer in whose office the action was com- menced, subject to revision under clause (c) of this Rule. (a) Every bill of costs in a suit pending in the Court of Chancery at the commencement of the Act, every bill of costs in any action thereafter brought in any Division of the High Court for the administration of an estate, or for partition, or for the foreclosure, redemption or sale of mortgaged premises, and every bill in any other action where the amount is to be paid out of an estate or out of a fund in Court, or where the amount taxed affects the interest of an infant, shall be subject to revision according to the practice hitherto prevailing in the Court of Chancery ; and the Orders W ru' m i ^1 \ \ I'll M,| 542 ONTAllK* .lUDICATlIKK ACT, 1881. Rule 439. of tliut Court luimbercd from 310 to 313, inclusive, sliall in other respects be dccmcti iipplicablc thereto. Xot tiiki.ii fntiii any Kiiglish Ruli'. I'lu; ChiuicLry OnlcrH rcft'ircd t(i arc tlio following: Cli. i»iil. :ilo -'.'{lO. No Mil of costs when; tliu aiiiovuit dlaiinud oxcihmIh tliii'ty dollars is liurcaftor to liu taxed l>y tin; Aocoiiiitant ll(!i,'istr;ir, or .fiidgns' Srcrct.arv, l/ut t-vrry t>iU i-xcecdini,' tliat sum is to \>v taxi'd by till' 'I'axiiig < ttlicer, notwithstanding anything to tiie contrary con- taincd in the order. Ch. onl. Ml " :\\\, iOvery Local Master is forthwith, aftertaxinga hill of costs, to transmit tlic same hy mail to Toronto, addressed 'To the T;i\inL' Olheer of the ( 'oiirt of ( 'haiicery, Toronto,' and lie is to allow in the hill the jiostage for the t ansniission and return of the hill, and shall iirepay the same ; and is to allow in the hill the sum of one df)llar as a fee for the revision of the hill hy the Taxing (Miicer ;it 'J'orouto, and a law st.anip for that sum, with postage stamps for the postage, is to lie paid at the time of taxation l)y the party jiroeuniig the hill to he t.ixed ; and tlu; Local .Master is to transmit with tlio bill to the Taxing Ollicer at Toronto, the law stamp, and the neci-i- sary stamps foi- postage on the return of the hill to the Local Master. Ch. Ord. 31'J ";{|'.>. The Taxing Utticcr at Toronto, upon receiving the hill nf costs, is to examine the same, ami to mark in the margin such sums (if any) as may appear i/O him to have been imjiroperly allowed, or to he ((uestiouahle ; and he is to revise the taxation, either ex jmiie or upon notice to the Toronto agent (if any) of the solicitor wIklsg bill is in cpiestion, tas in his discretion he may see (it ; hut notifying such agent (if any) in all cases where the taxation is not el.arly erroiuous, or Avhere the amount in question is so large as in the judgment of the Taxing Ofiicer, to make such notification jiropcr. Such notiticatiou may he hy ajipointment mailed to the address of the agent (if au}')- If upon the revision the sums disallowed sliuU amount to one-twentieth of the amount allowed upon taxation, the Taxing Officer is to add to the aincmnt taxed off, the amount of postages, and the sum of one dollar aforesaid, and is thereupon to re-transmit the bill so revised to the Local Muster. Under these Orders the Taxing Officer has power not only to strike out items imj>roi)erly allowed, but also to restore items impro- perly struck out, and generally to review the taxation (Kdni v. Ytaijlvy, U (J. L. J. o5). Oh. Ord,313. " 313. No sum la to be inserted in the report of a Local Master as taxed and allowed for costs, until such revision by the Taxing t>tttcer; but in a case of urgency, a writ of execution may issue to levy deht or costs, or both, upon the order of a Judge, subject to the future revision by the Taxing Otffcer." (6) In other cases any party interested may as of right have the taxation of the local officer revised, without giving the two days' notice to the opposite party required in the 353rd section of the Common Law Procedure Act (R S. O., c. 50) ; which section shall in other respects apply to all the Divisions of the High Court. Not taken from any English Rule. 1 1 F \ 1 ' UKVISION OF TAXATION. 643 Section .Sr>3, G. L. I'. Act, is sot out in the note to Rule 417, huI)- Bnles sec. (''), MU/>ra. 23d, 440- A revision in;iy lio hiul thoupli piiyiiiuiit of the bill as ta.xiMl liy the Local Oliiocr liiis been in.ulii without protest {KoriiKnin v. Taohij, I'r. It. II- ; I'Jtlioltv. Xor/limi, IOC. \j..\. l(i) ; and ies of pleadings where necessary for an interlocutory motion will Ije allowed ( Warner v. Mosses, W. M. 1881, 135 ; 45 ' T. 359 ; 17 C. L. J. 479). \Vhere by an order allowing the plaintiff to make an amendment the costs were made costs in the cause, lield that that the Taxing M, . 1 TAXATION OF COSTS. 545 OfTiocr had no discretion under this nulo to disaUow these pii,n, 20 C L. 440 440 .).!»:{; :ia L. T. 504). In (^hn'*t(t})hi'r v. Noron, 20 C. L. .T. .T2 a trial was postpontd owing to defendant not having; olx'yed an order to iirodiice, di't'cMdant to ]iay tht' costs* reiwh-'red nugatory liy the postponeni'Mit. 'I'he ]ilain- tili' Hul)[ii'ii'isior referred to the Master to be ta.xed, the solicitor is to ^'"''''""'' frive credit for all sums of money by him received from or on account of the said client, and is to refund what, if anythinj^, he ma}' on such taxation ai)i)ear^to have been overpaid. These directions refer only to moneys received in resjicct of the Imsiiicss for wiiieh the hill was remiereil, unless tliere was special a^reemint (sec Janes v. Jdims, 1 P.cav. .S07 ; Ji'r timith, 4 Jicav. .301); 1) lieav. 182 ; Viopcr v. Ewart, 2 I'll. .3(i2). ((() The Master is to tax the costs of the reference and certify what shall be found due to or from cither part)' in respect of the bill and demand and of the cost of the reference to be paid accordint^ to the event of the taxation pursuant to the Statute. (h ) The solicitor is not to commence or prosecute any action or suit touchi.iir the demand pending the reference without leave of the Court or a Judi;c. (c) Upon payment by the said client or other per- son of what (if anythin<^) may appear to be due to the solicitor, the solicitor (if required) is to deliver to the said client or other person, or as he may direct, all deeds, books, papers, and writings in the said solicitor's possession, custody, or power, belonging to the said client. (d) The order shall be read as if it contained the above particulars, and shall not set forth the same, but may contain any variations therefrom, and any other directions which the Court or Judge shall see fit to make. 85 I (U; •!;::ii:^ I rf:;-!'*; 54ii Rnl'es 443-445. 444 Oril ;r of <:■ ursc to issue oil pnecipe. ONTAUIO JUUICATURK ACT, iMtSl. Thero in no corres]>tm(liTig Kiile in Juiglaiid. This Uul(3 contains tli(! ])rnvisi(>n.s visually iuscr*-!- ;:• an onUr fui- tliu taxation of a solicii.or's bill. It will not now uu pi'opcr to insert tiu'iii and the order will ho road as if it (.ontaiiHid tiuni ; but it may contain any variations or adflitional directions. Form No. !.'}(), in A{)])cnilix (H), is the form of ordtn- to he used in sucli cases, and should ]»; adhered to (hut see L'c SolicUor.s !> Pr. it. !J0). A direction for pay mont ill 21 ilays was formerly, in < 'hanccry, hut should not now he inserted (/lVC.7r(r^r,!> I'r. R. 197 ; see AVyl. />'. & (!. D.S I'r. I!. I'Jd). A solicitor's hill must he taxed in the c a client after demand, and notice, under K. S. <). c. 50, s. 'J('7, that interest will l)e claimed (/i'r McClivr & Glllrbuiil. >J 0. L. T. iO.'l). but the taxing ollicer has no power to allow int.ji'cst unless tluit matter lias Iccn expressly referred to him (8. 0. 18 C. L. J. 98). 'Vliv taxation hy a lj'>cal Master cannot i)e revieweil under Itule 440, b\it must ije appealed from like other decisions of a Master under ( hy. (J. O, ()l:2 (Exrlmi,,],' Ihud- v. Xi'WiU, <.) i'r. It, o-JS). [/. The order, when ^rantable of course, shall be issued on vroicipe by the Rci>-istrar, (a) Deputy Reij^is- trar, Local RcLnstrar, or Deputy Clerk of the Crown There is no corresponding liule in Englaml. (a) i^a. (^Uerk of Records and ^Vnts. An order was formerly in Chancery, and is now umler this Itulc grantahle on //nfi-ipc on the ajuilieation of the client within a month from the delivery of the bill, unless tiie retainei' is dis])uted (/iV Tlninjuod, 10 Beav. 541), or there is some special agn^enient as to costs (ih. Ill- ('. cC L., 15 C. L. -I. !."{0), or as to the solicitor's lien (Re Mosii, 17 Beav. 50), or taxati(m of only part of the Ijill is desired (Re Bi/rch, 8 Beav. 124 ; Re YeU.i, IVA Beav. 412), or oidy some of several parties jointly liable, are applying (/iV Ililciiiin. H.'{ ''jav. 201 ; see Re Lewin, li) Beav. OOS ; Re Becker, .(.v;., 2 Chy. Ch. 215). But an order on pro'ei.pe will not be discharged where the party obtaining it had no previous intimation of special contentions of the other party (AV Raeoii, 3 (Jliy. (.'h. 70 ; Re Viniie.rnn. ih. 204). 445 Aj-piidHtion 1 8. The rules, orders, and practice of any Court, ruie.wmi,..s whose jurisdiction is vested in the Hi^i^h Court of audpVa..t.i<(! Justice or Court of Appeal, relatini^ to costs, and to the allov^'ance of the fees of solicitors and attorneys, and to the taxation of costs, existing;" prior to the commencement of the Act, shall, in so fa. as they arc ^^ TAXATION OF COSTS. 547 not inconsistent with the Act and tlic Rules of Court Kale? in j)ur.suancc thereof, remain in force and be apph'cable 445-447, to costs of the same or analo;:^ous proceedings, and to the allowance of the fees of solicitors of the Supreme Court and the taxation of costs in the Hic;h Court of Justice and Court of Appeal. (R. Sup. (J., Aul;\ 12, 1875, R. 28; R. S. O. c. 50, s. 334.) This corresponds in sul>stance with tlu Hnglish liule. See Prhujlr v. Gloiif/, 10 Ch. 1). OTo. [9. The taxing officers shall perform their duties under and subject to any supervision which from time to time may appear to the Judges of the Supreme Court to be necessary or proi)cr, and may by them be directed, in order to secure accuracy and uniformity in the proceedings of the taxing officers. 'I'liore is no corresponding Rule in England. 44 5 :-ii)icr\ isinii !■' tixi:'.,' 1 Jlirers. 447 JO. Any party who may be dissatisfied with theui.jc'tiin to allowance or disallowance by the taxing officer, hi'"'-"^'^"- any bill of costs taxed by liim, of the whole or any part of any item or items, may, at any time before the certificate or allocatur is signed, deliver to the other party interested therein, and carry in before the t'lxing officer, an objection in writing to such allow- ance or disallowance, specifying therein by a list, in a short and concise form, the item or items, or parts or part thereof, objected to, and may thereupon apply to the taxing officer to review the taxation in respect of the same. (R. Sup. C, Aug. 12, 11875 ; R. 30.) Montieal with the I'^nglish llule. When a party carries in an objection in writing to an allowance or disallowance under this Hide, he is onlj'' bound to state the items to which he objects, not the reasons of his objection (SinunuiiH v. Stom; 14 Oh. IX 154). A sherilF, as an olHcer of the Court claiming fees by virtue of its process, is so far within its jurisdiction that Ins bill may be taxed, and this Rule will therefore apply to prevent an appeal as to items nob brought before the Taxing Officer for review [Morrison v. Taylor, 9 Vv. M.'M)). Where the question is one of the principle of the whole taxation, and not as to particular items, it is not necessary to specify objections uii.ler this Rule {Sparrow v. Hill, 7 Q. B. D. 362). Tins Rule only applies in the case of taxations by the Taxing GUI ^ers apjiointed under Rule 438, not to taxations by Local Officers {Grant v. Grant, 10 Pr. U, 27). ;:il| $ ■'H \ '^ i.! I 'i l\A Him ii ■) 548 ONTARIO JUDICATURE ACT, 1881. Rales 447, 443. A person who is not a party to the making of an order for the taxation of costs, and who desins to liave the taxation reviewed, ought to apply to set aside the order for taxation, and not apjdy to review the taxation {Charlton v. Charlton, W. X., 1882, 183). Tlie following form of stating objections is given in Sunmierhays' & 'I'oogood's Precedents, L'nd ed., p. 45, and is a convenient form to be followed, though it states the reasons of objections, whicii is un- necessary under tiininwns v. Sforcr, .siipra : — In the H. C. J. Division [title of cause.] Objections taken by the plaintiff [or defendant] to the taxation by Ksq., one of tiie Taxing Oiticers of this (!ourt, of the bill of costs of the plaintiff [or doliiiidaut] under the judgment [or order], dated the day of IS . The plaintiff [or defendant] objects to the rdiuary, under iiule illd, from the Taxing Ollicer.-i in 'I'oronto. 'i'liis Ivule and llule .")t-l: oidy apply to a|i[ieals from tlie taxing otlieer.s at 'I'oi'onto. 'I'lien- is no direet appeal troni tiie local oliieers. The old jiraetiee i.s in s)ich a ease eoutinued except as to tlie lengtli of notice of revision, for ■\viiieli Kule 4'A\) fi:ir llml- v. Xw/v//, J) I'r. if. .V.'S). WIk.m'c ([uestion.s of taxation are in tlie Master'.s discretion, his discretion will not be interfered witli uides.s it he manifest that he has failed to exercise it iu a i'eason:djle manner [llanircuri n v. Scott, 4('. I*. 1). lM). 'i"he taxing otlicer's decision ;.s to the amount of counsel's fees will not he interfered with unless a gross mistake is uuide (Brotrn v. Siirrll, lii Ch. 1). T)!? ; see .also Fnj; v. Tordnti) .0 y^i/>is', ?, ('. 1'. 1 >. '2(>4). The Court will not ordinarily interfere except where a(|uesti. 2. Where any limited tinie les.s fllnh six day.s from or after Miy date or event is appointed or allowed for doin^ any act or takin<4" any [)rocecdin^ [holiday.s, a.*^ defined by the Inter[)retation Act], .shall not be reckoned in the computation of such limited time. (R. Sup., 1.S75, Order 57, R. 2 ; R. S. O. c. i, s. 8, sub-s. 16; Rej^. Gen., T. T., 1856, No. 146, Ont.) The words in brackots do not correspond with tiie Knijlinh Ihile. Holidays are (lotined hy the Interpretation Act (H. S. (). e. 1, .s. 8. suh-s. iO) as follows : "10. The word "holiday" shall include Sundays, New Year's "Holid.iy. Day, (rood Friday, Kaster Monday, and (Jhristriias Day, tlu' days ajipointed for th<' celebration of the birth-day of Her .Slajcsty ami of Her lioyal Successors, and any day appointed by proclairiation of the ( iovernor-ficiieral or fjiciitenant-(!overnor a.s a pul)lic holithiy or for a General Fast or Thank.sgiviiijj;." This lUile api)lies to the period foi' enteriiig cases under Rule 2()4 (/'((/•/• V. Lniii//i, |{ C. \j. 'I'. ',M'2), and to shoit notice of trial under llule •_>")!! (f//>o)(H<'// V. ODonmll, '10 i\. !-. .1. I7<» ; ■! C. I.. T. 'l^A). Where the limited period is not less than si.v days, holidays are cnwwU'A (Ej- jxirh- Viiicii, 4 (Jh. 1). 7!I4 ; Cnnitsh v. Mdiinimi, ISC L. .1. i-ta). In such cases it is only when the last day is a holiday that, by K. 457, an exteii.sion is yiven {Tdylor v. ,li,ins, if) L. .1. C !'. 110). 3. In all cases in which any particular nimiber of (lays not expressed to be clear days, is prescribed b}' the Act or the Orders or practice of tlie Court, the same shall be reckoned exclusively of the first day, and inclusively of the last day. (Eni^dish i'iule, Xo. 174, of Hilary Term, 1853.; When tiie expression "clear days ' is not used, days are clear when expressed to be " at least " a certain nuinlx r of days (see lleti V. Sliropsliirc ./itii'ir:s, S A. & 10. I7.S ; Fisher Digest, p. ;s;i'_';} ; HVW( /• V. fjfi/n, li ( ". L. T. r)()i ; Rumor v. Marx, in note to Hnle .'>17'' p. 432). 4. Where the time for doinj^ any act or takini,^ any procecdin*^' expires on a Sunday, or other daj' on which the ofiices are closed, and by reason thereof such act or proceeding" cannot be done or taken on that day, such act or proceedinf^ shall, so far as rey^ards the time of doin^ or taking" the same, be held to be duly done or taken i( done or taken on the day on which the offices shall next be open. (R. Suj). C, 1875, Order 57, R. 3.) Identical with the English Rule. This Rule does not apply to extend the time for registration of a chattel mortgage under the Statute, R. S. (). 0. 119 (McLean v. 456 •iiinputrd. 457 WluTC l;iHt iliiy is Sun- duy. m ■ } fvf« ■, ij ^!:; ('■ :!j I ;■ ft * '■ m !M I'-mu 1 1 I ' I ft' !'" 552 ONTARIO JUDICATURE ACT, 1881. Rules Pinkerton, 7 Ont. App. 490) ; nor to extend the time fixed 1)y a statute 457-459 a. "^ Limitations, and therefore in an action on a promissory note where the limit of time under suoli a statute expired on Suntlay, and tho writ was not issued till Monday, the bar of the statute was held to apply (Morris v. likhanh, 45 L. T. 210). But it is considered by the orficers of the various Divisions at Toronto that where the year within which a writ of execution is tn be renewed under l!ule .So.S expires on a Sunday, the writ may be renewed on the following day. Where the time for aiij)ealing from Chambers expires on a holiday, the motion may bo made the next day (Taylor v. Juiw-s, 45 L. .J. C. P. 110). Notice of motion for a dies -non is bad (Danhveii v. Slmtthworth, 1 Ex. D. 53 ; Deyhiti v. Cukman, .30 L. T. 195 ; '17) \V. it, '294). 458 Enlai't;!- llU'Ilt of tiiiic by (-'OUSCllt. 5. The time for dcHverini^ or amendinj;]^ any plead- ing; nia}' be enlarged b)- consent in writing, without application to the Court cr a Judge. (R. Sup. C , April 1880, R. 42.) Identical with the Eii<'li»h Pvule. 459, !■■ i [Hide Ji'jD has hern nscindril hi Hide oJfO, udiirh tool: effecf OM .hid Jan., l/, 8 Pr. 11. 328). Service of a paper effected witiiin proper hours but by leaving the paper in the office of the solicitor, after he and his clerks had kit for the day, is good service oidy from the time when the paper came to the knowledge of the solicitor (Daries v. Hubbard, 20 C. L. J. 32 ; following McCallum v. Frov. Ins. Co., G Pr. 15. 101). ) IP. 1 i.lM VACATIONS. 553 7. No pleadings shall be amended or delivered in Rules the long vacation, except [by consent or] unless direct- ^^^' ^^^ ed by the Court or a Judge. (R. Sup. C. 1875, Order j,,^;^,^°^__ 57, R. 4 ; R. S. O., c. 50, s. 95.) The worils in brackets are not in tlie FnglLsli Rule. Hitherto in tlie f'oniinon Law Courts no ])lea(liiigs could he de- livured during the long vaeiition (it. S. O., c. 50, s. !)">). Under this Hide it can be done by order or l)y consent. vaciitiou. 461 111!" Vlll'.t- 8. The time of the long vacation shall not be j.,,,,^ reckoned in the computation of the times appointed ^';".",'^.''"^'- or allowed by these Rules for filmg, amendmg, or de- t\jr I'liudiny. li\cring any pleading [or in the times allowed for other purposes for which the same is not reckonetl by the practice of the Courts consolitlatcd by the Act, or an\' or either of them, or for the like proceedings sub- stituted by the Act, or these Rules] unless otherwise directed b\' a Court or a Judge. [S'C R. Sup. C, 1875, Order 57, 'R. 5 ; G. O. Chy., Xo. 408 ; R. S. ()., c. 50, s. 95-) The words in bi'ai-Ij ;o;uing absolute ; "(5. Moving to dischargj an order of revivor ; "7. Moving to add t'). vary, (U- set aside .a decree, by aii\' party served therewith." The time for appealing from a Master's rejjort does not run during \.ir the Christmas Vacation. (See notes to (!. O. (U-* p. l.")()*. 'i'lic con- ti'ary was assumed to Ite the practice in Si, nu-rijld \. Liii", !t i*r. 15. 201), and leave to ajijieal was granted wliei'e by mistake (of the sup- po.sed ))ractiee) on the part of the sidicitor, Christnuis X'aeation was sup[)(ised not to count. A Master's rcjiort maile in Long Vacation contrary to Cliy. Order 4'2.'), tiiough if made out of vacation without notice to defendant it would have been valiil, was, as against a defendant who had no notice of the proceedings on which it was founded, held entirely null and void [Falh.r v. McLean, 8 Pr. R. r.4l»). The periods of Vacation are regulated by Rule 53L iticiiis. \\AV. M.. ' y 654 ONTARIO JUDIOATURK ACT. 1S81. Rule 462. (j. A Court or a Jud^e shall have power to cnlarL^^c 462 or abridge the time appointed by these Rules, or fixed in'rliVur ^y '^'ly "r<-lei* etilart^ini^ time, for dcMiiu^ any act or aiiruiKfiii.nt takinsj anv i)roceediny tiie ( 'omt. In lld.-iliiKjn V. Iliir/ii/, U) (Ml. \). ~:M, the tinu; for indorseUH iit nf the date of servict^ under U. 4+ was extended. In I)(i,i/cr V. Iit)herl.ii))i, !) I'r. II. 78, tinu' for appealing from an Othcial Referee in ( 'hand)ers undi'r Uule 4J7 was extendeil where the time had expired through a misapprehension of the piactiee. This Rule does not empower the (.'ourt to allow an application as to costs, which by Rule 4'J8, if made to a Jiulge, nmst he maile at the trial, to l)e made at any later period [liuhr v. (.hihs, '1 (.,). 1>. I), 171). Where; an ordei- was made under Rule "JO.S, dismissing an action for want of prosecution, unless a statement of claim slu>uld l)e de- livered within a week, and no statement was delivered in the week so linuted, it was held that the action was at an end, ami that there was no jurisdiction to make an order sul)sequently extending the time for delivery of the statement of claim ( Whisthr v. [laiimrk, 3 Q. B. D. 8:]). An order was made on the ()th of .May dismissing an action for want of prosecution if the statement of claim was not delivered within fourteen days, and on the l!>th of May the plaintilV took out a summons retuniatile the next day, the last of the foiu'teen days, for further time to deliver the statement of claim. The sumnious was, on the 'JOth, adjourned, by the consent of the parties in writinir indorsed thereon, till the 'Jlst. and on the "Jlst a Master made an order giving seven days more for delivery of the statement of claim. The Court rescinded the order on the ground th;it there was no jurisdiction to make it, the action being at an end on the 20th of May (Kimi v. Davciiport, 4 Q. \i. D. 402). On the 2r)th of March a Master made an order dismissing an action for want of prosecution, unless an atHdavit in answer to interroga- tories was tiled on the Slst. The atttdavit was not filed on that day ; but on the day following a sunnnons was taken out for further time to answer the interrogatories : - ffild, that it was still competent to I'll! KNl.AKCJKMKNT, KTC, (>K TIMK. the ('onrt or ii Juilj,'(; to enlarge thi^ tiiiiK foi- tnoviiig to set aside or vary tin; ordur of tlie 'J(jtli of March (llnrlci' v. /{anmi/, 4 ( . 1'. i). 226). The ( 'ourt of Appeal lias deeiilrd tliat a .hidije lia« jiirisdietiou under tliis Itule to eidai<,'e tht^ time for apj)ealiiig ai,'aiii.st an ortler (liHiiiisisinji tlie action for want of pi'oseciition, even aftei' the order ban taken ell'eet. and the action lias tlierefore ])eeonie dismissed ; and tliat 111! has also jiirisdi(;tion. when he has so enlarged the time for aj)pealing, to vary oi' uni iid the order dismissing the action, and in the exercise of such jurisdiction his discietion is not linuted hy any tixeil orarhitrarv rnles (Carfi r v. S/iilihs, (> <). H. f). ]\i\). See also Wripi/ v. fiu/i/, ;{ (). I'.. I). HO. •_';-),•{, and note to llule L'O.S. In the ahove eases, Whixtlir v. lldunicl;, is recognized as correctly decided. In that cast! then- was no jurisdiction to make the older aski^d, liecause the motion was to take some step in the cause, and was notdircctetl to modifying thi' onler for dismissal. There ha interfere {(rililcr v. MiirrUmi, SO \V. 1!. Slo). Where within four days from a (i||rllt. to bo stiitc-d. 486 AflMivits iiiiidu by tw.i nr iiioi'u (U'pouoiits. 467 AfTulavit to sliew on wlioso be- half it is filed. ONTARIO JUDICATURE ACT, 1881. OllDER LIII. AFFIDAVITS. 1. Every affidavit shall be drawn up in the first person, and shall be divided into paraj^raphs, and every para^^raph shall be numbered consecutively, and as nearly as may be shall be confined to a distinct portion of the subject. Iv. cry affidavit shall be written or printed [a]. No costs shall be allowed for any affidavit or part of an affidavit substantially dcpartinj; from this Rule. (R. Sup. C. April, 1880, R. 12 ; Rcii. Gen. T. T. i8s6, No. 112, Ont.; G. O. Chy. Nos. 68, 258.) id) 'I'lii! Hiiglisli liulc has lieru tlu; wurds " hook-wisu ;" it is otherwise tlie Siimo. Tlio |)i-c'vi()us ])rivi;ti(.'i,' was suhstautiiilly tho same, except witli regaid to an aliidavit liuiii;; printed, All alhdavit styled in ttie II. C J. Imt not in tlie [irnpur Division is aiiiendal>lo (li(>hertm)i v. Coulhn). \) Pr. I!. 1(>). See ( 'hy. < !eii. Orders OS, •2.")8--2ai . 2. Every affidavit shall state the description and true place of abode of the deponent [and shall be , sig-ned by him]. (R. Sup. C. y\pril, 18S0, R. 13 ; Kcji;. Gen. T. T. 1856, 109, Ont.) The Knglisli Rule does not contain the words in hracliet-J. ■Plie })artie.-< may descril)e tlieinselvos as •' the ahovc nanii;d pl.tin- tift" ['»/• (U:fend;intl.'" without residence or other description {iilcc af Suii/iinnlirrlnnd v. 'J'v.lil, 7 ell. I). 777 ; see also Dunn \\ McLean, (5 I'r. R. 9i>), A line drawn tiirongli words though leaving them legilde is an eiii«ine ( WVIhtiiis v. C/ouij/i, I A. & E. .S7(j). Where an interlineation was uninitialed by the Commissioner, it was held that umler tiiis Itule tlie aliidavit could not be read, but leave was given to relile it i)roperly sworn [Boijd v. McXiUt, K I'r. i;. \\y.\). 557 Bales 468, 470. 468 AltiM'.ltioIls III allUiavit 469 6. Where an affidavit is sworn by any person ^vho ,^,ii,,,,^.n^w appears to the officer taking the affidavit to be jlU-iiHtiiatu 1 rr- 111 •? • 1 ■ 1 1 I'd'SOIIS. . tcrate, the ornccr shall certify in the jurat that the affidavit was re.id in his presence to the deponent, that the deponent seemed perfectly to understand it, and that the deponent made his or her signature in the presence of the officer. No such afifidavit shall be used in evidence in the absence of this certificate, unless the Court or a Judge is otherwise satisfied that the affidavit was read over to and apparently perfectly understood by tho deponent. (R. Sup. C, April, 1880, R. 17; Reg. Gen. T. T., 1856, No. 113, Ont.) Identical with the English Kule. 7. In cases in which by the present practice an stamps on original affidavit is allowed to be used, it shall before affidavit*, it is used be stamped with a proper filing stamp, and aVl! 558 RnloB 470, 471. U- of olll •ji>|.i.'8. I 4.'1 t'liioecclii,;' ti) i.e taki'i Divisional Ciurtd. ONTAIJlo .MDK'ATIIHI', A(Vr, iHSl. shall ;it the time when it is usetl, he delivertnl to aini K.'ft with the |)i-c)i)er()nicer in (Ourtor in Cluiinbers. ^/j i\ti office co])y of an affulax it may in ail cases be iisetl, the original affitlavit havin^j been previously ■u filed in the {/>) [i'ri»i)ei-| ol'tice, and the copy dul)' aiithenticatuil with the seal of that (jflicc. (R. Sup, C, Ai)i-il, i.SSo, R. 1 8.) • {(i) 'I'lio I'iiiylish Kiilo lias licrc tlic wonls '• wlio sliiill siiid to t|j, Cuiitnil Mlliue." (h) 'I'lio lOiiglisli Itiilc Ims tliu word " (,'t iitial'' instead ot' tlic word " propor. " 'i'iiu aljovo id otlicrwiau llio suiiiu uh the Eii'disli I In In. OIM) I^: R M V. DIVISIONAL AM) OTIIKU COIJHTS. I. The following" proceeding's and matters shall be heard antl determined before the Divisional Courts ; but nothing- herein contained siiall be construed so as to take away or limit the power of a sini;le Jud^c to hear and determine any such proceediiiLjs or matters in any case in which he has heretofore liad power to do so, or so as to require any interlocutory proceeding therein, heretofore taken before a sinsde Jud<;e to bi taken before a Divisional Court, [a.] Appeals from orders of a Judi^e in ^ .mbers [h.] For rostrietions u|)(ju the right to appeal in siicli casos*, see sues. 35 and lU] of the Act. Tliere is no appeal to the Divisional Court from a Judge sitting in Court. See note to see. 28. Proceedings directed by any Statute to be taken before the Court, and in which the decision of the Court is final. Cases of Habeas Corpus, in which a J udge directs that a rule nisi for the writ, or the writ, be made returnable before a Divisional Court. ([c] Other) cases where all parties agree that the same be heard before a Divisonal Court. Applications for new trials in the said Divisions where the action has been tried with a jury. (Comp. R. Sup. C. December, 1876, R. 8.) L' sittiii'' ill SON coMi'tJANf'K winr lim.KS. (/;) Tilt; pricoiiiii!,' pvit of this Itiile is t.vkcn ii-.'iii tiif Imil^MhIi OnliT, DfcciiiluT, l,s7ii, It. S. (/)) 'IMii' Mii.'lisli UuIl' luiiia's ciiily tliu Q. H., ('. I', .'mil l^xi'liiiiiitT Divisioiix. (r) llistt'inl ut till' \Vn|-(l '■ utlli!!'" tllo I'.MLjlifll lllll(; ll.lx the Wnl'fi " s|pi'ci;il," (.SCO lliilt! .'{17", ■■^ii/irn). Till iMiu'linli Itiilc iilsi) iiicliidi's |)n)C('ciliii<_'s oil IIk- ( !io\vii sidi- of tlic (^iii't'ii'.-< licMich Division ; iiiipcals from Ki>visiiii{ IJiinistcrs, and nroci'cdiiii^s rulatiiiy to l'!li'(!tioii I'utitioiis, I'arliaiiii'iit.arv and Muni- t'iiial ; appeals undiT section Oof tlio ( 'oiinty ('oiirts Ai't, !s7;">; pi'iiuccdings on tlu: lu'Vciino .side of the l"',xelieipiir Division ; and cast's stated l)y tlie Itailwav ( 'onimissiDiiers undei tlie .'{(J iV .'{7 \ ict. c. 48. Sto notes to iSnles 807 and 3IG. J. Hills of exceptions and proceed inj^^^s in error shall be abolished. CSce R. Sup. C. 1875, Order 58, R. 1.) Mentieal with the En., 1 ,ii llulu. Rules 472 Hills . I aiiil I'l •!■ aliiilisiH (1. U 1) E 11 L V . IOFFK(rr OV NON-COMI'LIANCI': AND HIIUORS. 1. Non-compliance with an^ of these Rules sliall ^ '^'^^ not render the proceedings in any action \'oid unless mi,',' 'vi'i'i'i'' ' the Court or a Jud^e shall so direct, but such [)roceed- ""'''• iiii^^s may be set aside either wholly or in |)art as iiret,rular, or amended, or otherwise dealt with in such manner, and upon such terms as the Court or Jud^e .shall think fit. (R. Sup. C. 1875, Order 59.) Identical with the English Kule. Where .short notice of motion had i>een irregularly given, but the op]iositc party h.'ul not been injured liy the irregularity, tlie < "ourt exercised its discretion under this llule, disregarded the irregularity and heard the motion (DawKon v. /iei'soji, '22 Oh. D. 504). Taking a step after an irregularity does not sccin to necessarily waive the irregularity (/-"iVcAer V. ll'uules, 11 Ch. 1). 90o). 2. The Court or a Tudtje may at any time, and on . ^7"* . . •' ° . •'. 1 /^ AiiR-nilment such terms as to costs or otherwise as to the Court or of dcfotisor Judge may seem just, amend any defect or error in any proceedings ; and all such amendments may be made as may be necessary for [the advancement of justice] determining the real question or issue raised by or depending on the proceedings, [and best calcu- lated to secure the giving of judgment according to errors. iJ' '■I ^'^i!ir'i'it!|! ; : ■ Ji iV. * '■ ■ ! m i: il 1 4 -sn 7r 560 ONTARIO JUDICATURE ACT, 1881. Rules 474-476. the very right and justice of the case]. {See R, Sup. C, April, i88o, R. 44 ; R. S. O. c. 49, ss. 7,?> ; c. 50, s. 270.) The words in brackets are not in the English Rule, and are taken from the statutory enactments referred to. Wliere an order had been made for sale of i)roperty as deseri))u(l in a claim, but afterwards it was discovered to have been inis- describud, the claim was amended and the order post-dated so as In appear to have been made after the amendment ( Winklci/ v. WiiiHi i/, 44 L. T. r)72 ; 2!) W. II. (528). In general however, an'order, ought not to bear a lictitious date (AMfij v. Tmjlor, 10 Ch. D. 773). Other I'lules respecting amendments are 10, 178, and .3.38. 476 ORDER LVI. ACCOUNTANT'S OFFIC E. Suitor's I. The Suitor's Accounts in the Queen's Bench, Accounts ui _, ,,, 1 /--I 1 11 i"^ 1- 1 , supfrior Lommon i^lcas, and Lhancery, shall bo consolidated. siZ'iateii" ^nd shall be in chart^'c of an officer to be called tl^c Accountant of the Sunreme Court. 1. Not taken from any Ihiglishliule. See Ivule X. of the liules of the H. C. J. infra, p. ,501, by wliicli securities are vested in tlie Acco'-i, ■-,•„, and iJule 521, under v]\k\i moneys in Court may lie investei it 'he name of the Accountant of the Sui)reme Court through the Tt, ito (Jen. Trusts Co. See also Chy. (ren. Orders, SuS-MS. 476 Rev. Stat. c. -• Scctiou 12 1 of thc CoiTitnon Law Proccdurc Act 50, s. l-.'l' ai'iily to 50, s. iji, to ^l^^jl appl\' to the said accounts, and shall be read as iicci)uiit«. if the words "Accountant of tlie Supreme Court" were substituted for the word " Clerk " wherever the word " Clerk " occurs in the said section. Not taken from any English Rule. The Vecountant is the oidy pro])er person to receive payment of money into Court {Lcroiixv. Laiithirr, 2 C. L. T. 48). Section 121 of the C. L. P. Act is as follows : Rev Stnt c " l-l- Mtmey to be paid at Toronto, into the Court of Queen's 50 s. 121. Bench or Common Pleas, by any ])erson, shall be paid into sonu' in- corporated bank designated for this purpose, from time to time, hy order of the Lieutenant-Oovernor in Council ; or where there is no such bank, then into some incorporated bank in which public money of the Province is then being deposited, and which has been appointed for this purpose by any (ieneral Rule or Order made in the .same manner as other General Rules or Orders of the said Courts respectively are by law directed to be made ; or if no bank has l)een so appointed, then into any bank in which public money of the Proviuce is then being deposited. '!! md are taken accountant's office. 5G1 "(2.) The money shall be so psvid in to the credit of the cause Kulej or matter in which the payment is made, with tlie privity of the 476-478. (Jlerk of the Court [now the Accountant of the Supreme Court], ami in no other manner ; and such money shall only be withdrawn on tin' order of the Court or a Judge thereof, with the privity of the t'k'rk of the Court [now the Accountant of the Supreme Court]. "(.S.) Where money is so paid in under a plea of payment into Ci)urt, the Clerk [Accountant of the Supreme Court], on the pro- duction of the receipt of the bank for money or other satisfactory proof of such i)ayment, shall sign a receipt for the amount in the margin of the plea ; " (4.) The Clerk [Accountant of the Supreme Court] shall keep a book or books containing an account of all moneys so paid in, and of till' withdrawal thereof ; and shall prepare in the month of January in I'very year, a statement of all moneys so paid in and withdrawn respectively, and a statement of the condition of the various acc(>unts uiiou the thirty-tirst day of the preceding December, and sliall trans- mit to the Provincial Secretary and to the Judge or each of the Judges of the Court, a copy of such statement, with a declaratioii thereto annexed made before a Justice of the I'eaceor Commissioner for taking affidavits, iu the form following : I hereby solemnly declare that the annexed statement is a full and true statement of the moneys paid into the Court of (luring the year 18 , and that it correctly shows the state of the various accounts therein mentioned upon the thirty-lirst day of December last. (Siynaturt') A. li., Clerk: Subscribed and declared before me, at , this v day of January, 18 . "^^ C. D., Coynmissioner for tnkbuj affidarits or Justice of the Peace. " 5. 'i'he book or books so to be kept shall be open for inspection jj,,^. at„t during office hours : and the Clerk shall give a certificate of the state c. 21. of any account or an extract therefrom at the desire of any party interested, or his attorney on payment of the sum of twenty cents for sucii inspection or certificate, and the sum of ten cents ])er folio for such extract, which sums shall be payable in stamps, according to the provisions of The Act respectiiKj Law Stamps." 3. Money is to be paid out of Court upon the ^'^'^ cheque of the Accountant, countersigned by any of oi' court. "' the following officers, viz. : one of the Clerks of the Crown and Pleas or the Registrar. (R. S. O. c. 50, s. 121 ; G. O. Chy., No. 627.) Not in any English Ride. 478 4. Every cheque is to be initialed by the chief Clerk ci.e.iueto in the Accountant's office before the same is presented j)*^ ''ierk''^'^ 36 ^ ^ ^' ■ ':ltl:';r I ,..;. ■' I in fl ■ ij- ■ ' M ' 1 '«]: |: -' Hi i. ■'-'--1, .^iill 'U' 41 i' li-M 6G2 ONTARIO JUDICATURE ACT, 1881. Rules for the signature of the Accountant or other officer 478, 479. ^Sce G. O. Chy., Nos. 352, 372, 627.) Not in any English Rule. Rc-istiai- to 5- The Registrar of the Court of Chancery shnll act as, and shall be, Accountant of the Supreme Court until and unless some other person is appointed Accountant of the Supreme Court. Not in any English Rule. act as Acuuiitant. 479" Scciiritii's livboncl 1() the Acouutant. [$a. Every bond or recognizance required by the practice of the Court, for the purpose of security is, unless otherwise ordered, to be taken in the name of the Accountant of the Supreme Court, his executors, administrators, or assigns.] (Rule 519.) 479'' Kilt I, V of [5/^ Copies of orders dispensing with payment of i.ensi'nV'v'itii nioncy into Court are, in all cases, to be left with tiic payin.'nt Accountaut, forthwith after entry thereof] (Rule into Court. . ' •' J \ "- 504-) Tobciiiado [5'-'. Where infants are concerned, no order dispen- .''ua"aian ^" ^'"& w'ith payment of money into Court is to be made without notice to the guardian ad litem of the infants.] (Rule 505.) 479 tj Proof of]. ay- [S^^- No convcyaucc of the lands of infants is to be "oulWaiK'r settled until evidence is produced to the officer settlin>,r the same of the purchase money having been i)aid into Court, or of the payment thereof into Court having been dispensed with ; and in cases where there is to be a mortgage for part of the purchase money, until evidence is given to the said officer of such mort- gage having been registered and deposited with the Accountant.] (Rule 506.) 479 e Guardian's [S<^. It shall bc the duty of the official guardian to nioiu^iVs. ^^^ ^^^^^ moneys payable on mortgages held by the Accountant, in which persons for whom the said guardian has acted are intec.ested, are promptly paid, and that the mortgaged premises are kept properly insured, and that the taxes thereon are duly paid.] (Rule 507.) SITTINGS AND VACATIONS. ORDER LYI I. SITTIiNGS AND VACATIONS. 563 Bole 480 480 ' The Sittincjs of the Higrh Court of Justice shall situnss of be three in every year, viz., the Michaelmas sittin<^s, '^'' """^ ' the Hilary sittings, and the Easter sittings. (i() The Michaelmas sittings shall begin on the third Q- [,'•'' -^ Monday in November, and end on the Saturday of ' ' the second week thereafter; the Hilary sittings shall be-in on the first Monday in February, and end on the Saturday of the following week ; the Easter sit- tings shall begin on the third Monday in May, and end on the Saturday of the second week thereafter. (See R. S. O. c. 39, s. 11 ; R. Sup. C, Order 61, R. i). ('/)) In case it appears to the Judges of the said Court, or a majority of them, that the number of days so provided for holding any sittings is not required, or is insufficient, for the due despatch of the business to be transacted by the Court in such sittings, such Judges may from time to time, by rule or order, shorten the period for holding the sittings to such period, pot less than two weeks, or increase the length of the same to any period, as the case may require. {Srr R. S. O. C. 39, S. 12), A siiuiLir power was given by the Ontario Statute to any two of the tlu'ee Judges of the Queen's Bench or Common Pleas. (/') The preceding provisions of this Order are not to apply to the Chancery Division e.xcept when the Judges thereof shall be of opinion that the business of the said Division is such as to render the said pro- vision: necessary or convenient for the due despatch or business, and shall give notice to that effect. {(I) Divisional Courts of the High Court arc to sit at such further or other times as may be directed by the High Court or as may be necessary for the due despatch of business. The periods named for the sittings are those named for the Terms bearing the same name under R. S. O. c. o9, sec. 11. It will be observed that no Trinity sittings in August are provided for. The English Order provides for four sittings in every year for the Court of Appeal and the sittings in London and Middlesex. ; '1 I m: ■Mr u: Ai !, 'iliiiii 1 w !i 564 Rules 480, 481. 480.'. C'liancury IMv. Court Sittings. 481 VacatKiu Judges. ONTARIO JUDICATURE ACT, 1881. The sittings of Divisional Courts in the Chancery Division jire now regulated by Rule 524 as follows : — [(la) After the sittings in June next (n) of the Chancery Divisional Court the said Divisional Court will hold sittings on the first Thursday in September, the first Thursday in December, and the third Thurs- day in February in each year. (Rule 524). (a) 1882. These sittings correspond with the former Re-hearing Terms ' Chy. Gen. O. 413). see 2. One or more of the Judges of the High Court shall be selected at the commencement of each Loiinr Vacation, for the hearing in Toronto during vaca- tion of all such applications as may require to be immediately or promptly heard. Such Judge or Judges shall act as vacation Judge or Judges for one year from appointment. In the absence of arrange- ment between the Judges, the vacation Judge or Judges shall be the Judge or Judges last appointed (whether as Judge or Judges of the said High Court or of any Court whose jurisdiction is by the Act vested in the said High Court) who have not already served as vacation Judges of any such Court ; and if there shall not be any Judge or Judges for the time being of the said High Court who shall not have so served, then the vacation Judge or Judges shall be the Judge or Judges (if any) who has or have not so served and the senior Judge or Judges who has or have so serv^ed once only according to seniority of appointment, whether in the said High Court or such other Court as aforesaid. (Comp. R. Sup. C, Feb., 1876, R. 9 ) Same in effect as the English Rule, except that the latter provides for two Judges, instead of one or more. It provides also that the Lord Chancellor is not to be a vacation Judge. No provision, it will be observed, is made for the attendance of vacation Judges of the Court of Appeal. No business is heard by the vacation Judges, or any other Jmlges sitting for them under the next Kule, except such as requires "to be immediately or promptly heard " within the meaning of tlie above section. No Judges except the vacation Judges, or tliose sitting for them, can dispose of business in vacation (Per Lush ami Lopes, JJ., 24th Sept., 1877). But qiterif. An application for judgment under Rule 80, will be heard aa urgent if the right to make it has accrued in vacation, not other- wise ; (Ibid). But query. ^ Division ;iro ' Terms 'nee VACATION JUDGES. 565 As to what is vacation business, see re Wiijan Junction Hallway Rales Co., L. R. lOChy. 541. 482-484. 482 3. The vacation Judges may sit either separately, jurisdiction or together as a Divisional Court, as occasion shall j[,d*e8*'"" require, and may hear and dispose of all actions, matters, and other business to whichever Division the same may be assigned. No order made by a vacation Judge shall be reversed or varied, except by a Divi- sional Court or the Court of Appeal (a) or the Judge who made the order. Any other Judge of the High Court may sit in vacation for any vacation Judge. (R. Sup. C, 1875, Order 6i, R. 6.) ((() The English Rule has here the words "or a Judge thereof ;'' it is otherwise the same. 483 4. The vacation Judges of the High Court may Power of dispose of all actions, matters, and other business of J',H{^^es" an urgent nature during any interval between the sit- vaYibetwem tings of any Division of the High Court to which sitiings. such business may be assigned, although such interval may not be called or known as a vacation. (R. Sup. C, 1875, Order 61, R, 7). Identical with the English Rule. Since this Rule was enacted, the business during intervals between Sittings has been regulated by Rule of the H. C. J. of 2'2ud, Aug., 18SI. (See infra p. 590). ' M, ;Li!!f 11 !| T i 1 ■ ' ^mm i[» ORDER LVII 1. ,i,i attendtaiice of EXCEPTIONS FROM THE RULES. 484 Nothing in these Rules shall be construed as intend- cert:»in mat- ed to affect the practice of procedure in criminal pro- ^^^f^'t"'! ceedings, or proceedings on the Crown or Revenue side of the Queen's Bench or Common Pleas Divisions. [See R. Sup. C, 1875, Order 62 ; R. S. O., c. 39, s. 4). The English Rule contains like exceptions and others not needed in this Province. ;|: ill! H •f\ m tt 1141X4 !''■ I ! 566 ONTARIO JUDICATURE ACT, 1881. i Bales 486487. 485 Forms to be used. ORDER LIX. FORMS. The forms contained in the Appendices hereto arc to be used with such variations or modifications as circumstances may require. {See R. Sup. C, April, i88o, R. 52). In Tiin/nanil v. Fearon, 40 L. T. at p. 545, Thesiger, L. J., said, " although the forms given in the Judicature Acts are not absoluttly binding, they are still of assistance as illustrating the meaning of the Act." 486 Sittings of County Court. R S. s. 10. 43, 487 Time sittings to commence. Rev. Stat. c. 43, s. 14. ORDER EX. COUNTY COURTS. 1. The County Court Terms are abolished. There shall be sittings of the said Court at and for the same periods as the said Terms. In like manner the Terms in the Q. B. and C. P. are abolishtMl, and sittings at and for the same jieriods substituted (see sec, 18 (if the Act and Kule 480, supra). The following is the provision whicn regulated the County Court Terms. (K. S. O. c. 43, s. 10). "10. The several County Courts shall, in each year, hold four Terras, which (except in the County of York) shall commence les- pectively on the first Monday in the months of January, A])ril, July and October in each year, and end on the Saturday of the .same week." (2) " The Terms of the County Court of the County of York shall commence on the first Monday in January and April, and on the second Monday in June and October, in each year, and shall eud on the Saturday of the same week." 2. The sittings of the County Courts now required to be held on the first Monday in April and October in each year, for disposing of cases without the inter- vention of a jury, shall, after the passing of this Act, commence on the first Tuesday instead of the first Monday in each of the said months. (R. S. O. c. 43, s. 14.) The following is the previous provision on this subject (R. S. 0. c. 43, 8. 14) : "14. Except in the County of York, there shall be Sittings of the several Courts of this Province on the first Monday in the months of April and October in each year, whereat all issues of fact COUNTY COURTS. in any civil action brought or pending in the Court wlierein the gitfiugs may be, and every assessment and enquiry of damages in aiiv such action may be heard, tried and assessed by the Judge of gucli Court without the intervention of a jury, in those cases where no jury is required ; and on any such finding, assessment or eniiuiry, the poslea shall be to meet the facts." 567 Rules 487-489. 488 3. Subject to Rules of Court, the Judges of the.iii.iKtsinay County Court shall also have power to sit and act at 'i|'„e|^ '"'•^' any time for the transaction of any part of the business of such Courts, or for the discharge of any duty which by any statute or otherwise is required to be dis- charged out of or during Term. Tliis corresponds with powers given to the Judges of tlie High Court of Justice and the Court of Appeal by sec. 11) of tlie Act. Tlu; previous provisions on this subject are as follows (H. S. (). c. 48, s. m : "l.S. Except in the County of York, and subject to tlie provi- Hov. Stat. sions of section eighteen of " The Lacttl Coin'fn Act," the Sittings of- ^'^' ■■*• ^^' the said County Courts, for the trial of issues of fact and assess- ment of damages, shall be lield semi-annually, to commence on tlie second Tuesday in the months of .June autl December in each year. "(2.) The County Court of the County of York shall hold four sucli Sittings in each year, to commence resjjectively on the first Tuesday in the months of December and Marcli, and on the second Tuesday in the months of May and September in each year." 4. In all actions, suits or other proceedings brought cosis wheio in any County or Division Court in Ontario, in which j-^r w"ilt of the plaintiff fails to recover judgment by reason ofj"ris ir regular process, rules or orders ; but such line shall in no catie exiced $100, nor shall sucli imjirisonment exceed six numths. See also notes to sec. 77 of the Act. lY. I H OKDKK LXl. INTERPUKTATION. 1. A "Judf^c" in the prcceclini^ Orders means a Judge of the Supreme Court, or a Judi^e having authority for the time being of a Judge of the High Court, unless there is something in the context in- dic.iting a different meaning. 'I'iie interpretation clause in the Act, viz. : sec. 91 applies to the Eules. For the reason for employing the expression " Court or a Judge" thniughout the English Rules, see Fri'iimu v. Loe, 26 W. H. 138. This definition of "Judge " is considered to give jurisdiction to the Master in Chambers or County Judge under Rule 4*2"2 subject to the express limitation of their autlif the Act. pcMisfil with ill c'c'i'taiil Saturday, 10th Scptemlier, 1881. The Tariff of Costs was this day unanimously T^niiior adopted and ordered to be signed b)' the Chief Justice. '"'"'*'* 'I'lie Tariff is printed iiifra p. u!('2 at tlic end of the lluks. Tuesday, 3rd January, 1882. 504. Copies of orders dispensing with payment of oni,is >vi money into Court are, in all cases, to be lef* with the j',;;^;''''^ "'',',!_' Accountant forthwith after entry thereof. See llule 471)''. 504 lllolliV lilt Witll Ar- Culllitiilit. SOi;. Where infants are concerned, no order dis-,, ,, , . [)ensing with payment of money into Court is to bc"" noti,-,. to made without notice to the guardian ad litem of the fu'rai'its. '" infants. See Hide 479c, 506. No conveyance of the lands of infants is to be settled until evidence is produced to the officer settling the same of the purchase money having been paid into Court, or of the payment thereof into Court hav- ing been dispensed with ; -nd in cases where there is to be a mortgage for part of the purchase money, until evidence is given to the said officer of such mort- gage having been registered and deposited with the Accountant. See Rule MM. 506 Coiivoy- lllU't'S to imiohasors wlu'ie in- fiiuts iiittr- estucl. 507 507. It shall be the duty of the official guardian to official see that moneys payable on mortgages held by the '^"^'"'1'"° '" Accountant in which persons for whom the said mortgapes guardian has acted are interested, are promptly paid, plua°4c\ Iff- '^:'!, i ! ■ t .i. - M Hi 574 Bales 508-511. ADDITIONAL I'ULES OF COURT. and that the mortgaged oremises are kept properly insured, and that the taxes thereon are duly paid. See Rule 479»'. 6C« Entrj- of orders in lod.'il olliocs. 610 MritiiHis to clmiit,'L' or rjverst' .iu(li,'iiii'iits ill jury case Saturday, 28th January, 1882. [Rule 50^ 7vas hy Rule 517 rescinded mul a new Rule substituted.] 509. All orders i.ssued by a Local Officer vhich re- quire to be entered shall be entered -at the office of such Local Officer only. See Rule 418rt. 510. In view of the state of business in the several Courts, and of doubts that have arisen upon the con- struction of Rules 316 and 317, it is ordered that ■^ where, at or after the trial of an action by a jury, the Judge has directed that any judgment be entered, any party may, without any leave reserved, apply to set aside such judgment and to enter any other judij- mcnt on the ground that the judgment directed to be entered is wrong by reason of the Judge having caused the finding to be wrongly entered with refer- ence to the finding of the jury upon the question or questions submitted to them. Where at or after the trial of an action before a Judge, the Judge has directed that any judgment be entered, any party may, wit'.K/ut any leave reserved, apply to set aside such judgment and to enter any other judgment, upon the ground that the judgment 10 directed is wrong, and such application may In either of the above cases be to a i)i visional Court of the High Court, or to the Court '"'■ Appeal, and this Rule is to be substituted for Rules 316 and 317. See Rules 316«, and 317a. 511 , , . , Scale of 511. In every case in which judgment is enteret Jufigmuut"'' ^vithout trial, or the decision of a Court or Judge, or wuhmittriai ^'^'■^^'^ as to the costs, and where the amount of judg- or order as mcnt, »;"tma /aciV, appears to bc within thejurisdic- tion of an inferior Court, the Taxing Officer shall not tax full costs of the High Court, without proof on affidavit to his satisfaction that the suit was properly No 11 -jury casfs. to costs. SUPREME COURT OF JUDICATURE RULES. 675 instituted therein ; and if properly within the jurisdic- Rules tion of the County or Division Courts, then the tax- 512-515. ation shall be on the scale of fees in such Courts, subject to revision, as in other cases. See Kule 428c. 512. In case of trial by jury, and the Judge or Court s^,,^,^^jf makes no order respecting the costs, under Rule 428,,jiny(:is..s the taxation of costs shall be under such scale of al-,Vi'.i''iis''t.) lowance only as would have been applicable before '"'*''*• the passing of the Judicature Act ; and the event shall in such case be to recover costs according to such scale, subject to such rights of set-off as to costs as apply under the Common Lau- Procedure Act. See Kule 428a. 513. Discovery may be obtained bv either party |^,,,^,,, „.,„.„ under Rule 222 after the defence is dcuvered, and by '';^'*:^"y \ • • rr r i • r i i- • i i r iibtailliil. the puuntiii after the time tor delivernig the delence has expired. Sue Kule '1'1'lu . Saturdvy, 17th March, 188'2. 514. Rule 462 shall apply to all Rules relating tOq.; time. 514 me. See Kule 462o. « 515. In all actions which (before the passing of the Ontario Judicature Act, 1881, and the Law Reform Act of 1868), might have been brought under the equit\' jurisdiction of the County Ccurt, and which are now carried on in *he High Court of Justice, such fees and d'sbursement ; may be charged as are fixed by the lower tariff referred to in Order 553, of the General Orders of the Court of Chancery, and for all fees and disbursements not provided for in the said lower tariff, may be charged the amounts allowed in like cases, by the tariff of the loth of September, 1 881, subject how- ever to the same proportion of reduction as exists be- tween the said lower tariff and the higher tariff of the Court of Chancery. See Ptule 4286. . • - - 515 Si'alt! of (•lists ill nctiiiiis f( I- ( i|iiit-ilile ik'iiiMiiils. 'm mv^ \ ikl' 576 ADDITIONAL RULES OF COURT. I Rules ^ i5. So much of Rule 419 as applies to sec. 302 of the Common I^aw Procedure Act is hereby rescinck^l, Kiitiyof '^"<^ judgments of the Hii^h Court of Justice sliall not ju.Unuiits. be minuted and docketed as required by said section 302. See notes to Rule 419. 517 Transmis- sion to Toronto of listwiljuily- iiR'iits fntt-r- eil in loc'iil otticfs. 517. Rule 508 is hereby rescinded, and the follow- uv^ substituted therefor : — It shall not be necessary for any Deputy Clerk of the Crown, Deputy Re^jistrar or I.ocal Rej^istiar to transmit to the Registrars of the several Di\i- sions of the Hi^h Court at Toronto the oriu^iiial roll, and the papers of or belonging to the same, pur- suant to section 303 of the Common Law Procedure Act and Rule 419 of the Judicature Act ; but instead thereof, every Deputy Clerk of the Crown, Deputy Registrar and Local Registrar shall once ineverv three months transmit to the Registrar of each Division at Toronto a list, in the form hereinafter mentioned, of all judgments which have been entered by him in such Division during such pcrioil, and from the said lists the Registrars of the sever.d Divisions shall prepare, and from time to time keep up a general index or hst of judgments, which shall be open to inspection b\- all persons interested, upon payment of the usual fee. FoitM. List of .liulgmeiits entered in tlie/rr6v)>c as provided in Rule yi>. 521 521. Whereas, by the Act 35 Victorire, chapter 83, invistnuMit, (Ontario), the Toronto General Trusts Company wasi',', c.'ilJli^" incorporated, and thereby empowered to act as ;\^ents I,',''-.'||ii'y"' for the transaction of busin(jss as therein mentioned. <;iii.Tmsts And whereas, by- the Act of 45 Victori;e, chai:)ter 17, the said Com[)any may be accepted by the High Court of Justice as a Trust Company for the purposes of the said C(nu"t, in case the Lieutenant-Cjovernor in Council shall api)r(n'e thereof as th.erein set forth. And whereas the said Company has been so a^jproved of by the Lieutenant-Governor in Council, In- order dated the lothday of March. icSS2. And whereas the expenses of tiie Accountant's office have been, by the l)ntario Judicature ^\ct of 18S1, declared to be a first charge upon the income arising from the funds in Court, and it is not desirable to reduce the interest payable to suitors to a less rate than 4 p'^r cent., and it is necessary to procure the investment of moneys in Court in order to raise a sufficient income to keep up this rate, and provide for the expenses of the Accountant's office : Therefore it is ordered that the Judges of tlv Chancery Division may arrange with the said Con;pany to make investments, and to take the securities in the name of the Accountant of the Supreme Court of Judicature, of moneys in Court upon first mortgages of lands, and may direct the issue of cheques therefor upon condition that the said company do, by proper instrument, guarantee the sufficiency of such securities, and the due payment of interest at the rate of 4J per cent, per annum, half- yearly, on the moneys so invested from the date of \i1 ill " '. -I .,; '. \ i'MiU 1 ■, !'i "l\ :l\\ \-\ i I M i I I 578 Bnles 522-526. 522 Setting dow p., of jiuitions lie- foro Cliy. Div. Ouurt. 523 Tiiiif f(ir iiiciviii;,' to fliiinsc' or r('\t'rsu ii juilgiiieut. 524 Sittings of Chy. Divi- siohnl Court. 525 R. 308 amended. 526 Rules .'i09 and 310 reaeiudcd. ADDITIONAL HULKS OF COUKT. the receipt by the Company of the money for each investment, and also the due repayment of the principal moneys so invested ; and upon further condition that in case the said Company makes an investment as aforesaid at a higher rate than six per cent., then the said com[)any is to pay interest thereon to the Court at the r.ite of 4}^ percent.; and upon further condition that the said coiiipan)' is to satisfy the Official Guar- dian of the said lii^di Court of the sufficiency of tbc security as to value, and who is to certify the sairc to the Court before the cheque issues for each inxest- ment. 522. All appeals, proceed in c;"s, and matters to be brouti^ht before the Divisional Couit of the Chancery Division are to be entered with the Clerk of Records and Writs at least seven days before the day fixed for the sittings of the Court, and seven da}'s' notice thereof is to be served upon the parties entitled to notice. See Rule .317c. 523. An api^lication to the Divisional Court of the Chancery Division to chan;^"c or reverse any jiKl;j;ment shall be m^idc at the first sittinj^s of the Divisional Court, which bec^ins not less than ten da)'s after the pronouncing of the said judgment. See Rule .SI 7(/. 524. After the sittings in June next of the Chan- cery Divisional Court the said Divisional Court will hold sittings on the first Thursday in September, the first Thursday in December, and the third Thursday in February in each year. See Rule 480 a. . 525. Rule 308 is hereby amended by substituting the words " four days, both days inclusive, from the service of the order," for the words " eight days from the date of the order," in the third line of the said Rule. 526. Rules 309 and 310 are hereby rescinded. SUPREME COURT OF JUDICATURE RULES. r.7i) 527. In the Queen's Bench and Coininon IMcas Uules Divisions all applications under Rules 307 ami 308, 527-529. and under Rule 5 10 when made to a Divisional Court,,. ^^ .shall be made within the first four days of the sitlini^s nmkin'; of the Divisional Court for hearinf^ such ai)i)licati()ns,,''|'|.*'?,',I''o[." which may take place aftci the trial or iudpuient I'V"*'' . • complamed of. q. ii. it c.i'. DivisiuiiH. (ri) In case the decision of a question raised at the trial, or the jud<^ment, is reserved, and is not <;iven until the sittin<:^s aforesaid, or in case of a trial (hn-In^Lj the sittinf^s of the Divisional Court, any motion or application respectin;^ the same shall be made within six days after the day on which the verdict or judg- ment is given, if so many di}'s expire in such sittiiv^s, and if not, then within the first four da\-s of the en- suing sittings. H)) In cases tried by a jury, judgment shall not be signed until the time for making such motion or api)lication as aforesaid has expired, unless the Julge shall certify under his hand that in his oiiinion execu- tion ought to issue in such action forth witli, or at some day to be named in such certificate, and subject or not to any condition or qualification. See Rule SOOrt. 528 528. It shall be sufficient if the notice of any ap- Venice ^f plication under Rule 5 10 is served within the time here- !i"ii<'' witii- inbcfore hmited for makmg the same, provided that ■. 531. In case tlie party to whom such order nisi is granted shall neglect or delay tc draw up and serve the same, the opposite party may, on or after the third day after granting such order, and upon filing with the Registrar an affidavit that the order has not been served, enter a »c rcripid/in- with such Registrar, tcr which the Registrar shall not receive or enter such order ; and such order shall be deemed to be abandoned, and the oppc'site party may proceed as if no such order had been moved for or granted, unless the Di\isional Court shall otherwise direct. Sec Rule 3 1 Oc. 532. In pursuance of the powers conferred upon them by the 20th section of the Judicature Act of Ontar'o, 1881, the council of Judges of the Supreme Court of Judicature for Ontario recommend that the following orders regulating the Vacations to be observed by the High Court of Justice and the Court of Appeal shall be made by the Lieutenant Governor in Council pursuant to the said Act : — The Long Vacation is to commence on the 1st day of July, and to terminate on the 1st day of September in each year. (1) The Christmas Vacation is to commence on the 24th day of December in each year, and to terminate on the 6th day of the following January. (2) The days of the commencement and termination of each Vacation shall be included in and reckoned part of the Vacation. This Rule was aubsequeutly approved by Order in Council. 532 VacuUons. SUPREME COURT OF JUDICATURE RULES. 581 Rules 533, 534. Wednesday, June 14th, 1882. 533. In pursuance of the powers conferred upon them by the Statutes, in that behalf, the Council of vn.atidusin Judges of the Supreme Court of Judicature for ^"-qJ'j",.'^/ tario, recommend that the followint^ Orders rec^ulating the Vacations to be observed in the County Courts, and the hours of attendance of the officers of the said Courts shall be made by the Lieutenant Govenor in Council, pursuant to the said Acts. 1. It is Okdkred that in the County Courts there shall be the following vacations : The Long Vacation is to commence on the first day of July, and to terminate on the first day of Sep- tcinbc in each year. 2. The Christmas vacation is to commence on the twenty-fourth day of December in each year, and to terminate on the sixth day of the following January. 3. The days of the commencement and termination of each vacation sliall be included in and reckoned part of the vacation. 4. Nothing herein contained shall interfere with the Statutory Sittings of the said Courts during any of such periods. 5. During such vacations, except as aforesaid, the office of the Clerk of the County Court shall be kept open from ten o'clock in the morning until noon. Tiiis Uulo was subserjucutly ajuii'ovud by Order in < '(Jiiucil. 534 Tuesday, 27tli Juno, 1882. 534. Every County Court Clerk shall keep his oni.T'iiours office open for the transaction of business on every ^1,1^;.^'"'^' day except on holidays, and except as hereinafter offices, provided from the hour of ten in the forenoon to the hour of three in the afternoon. On and between the first day of July and the first day of September, and on and between the twenty-fourth day of December and the sixth day of January, every such Clerk shall keep his office open for the transaction of business from ten in the forenoon until noon ; and during the m ,1 .; 1 ii * 582 ADDITIONAL RULES OF COURT. Bulos Statutory SittinL,^s of the Court such Clerk shall keep 535, 536. jjj^ (Mlice open as aforesaid, on and between the said dates until four in the afternoon. FiiiDAY, 15th December, 1882. 535 oin.e iMurs 535- It is Ordered, that the offices of the Hin^h c.A. f„""''Couit of Justice, and of the Divisions thereof, and of Vacation, tlu; (ouit of /\pj)eal, shall be kept open during the Long Vacation and the Christmas Vacation, from ten of the clock in the forenoon until twelve o'clock noon. 536 Ofn.M.ii TuESfJAV, Jamuiry 2ml, 18S3. 536. Whereas, by a Resolution passed on the i(Sth GiiiiKiiMii'.s September, 1 88 1, by the Judges of the Supreme Court of jutlicature for Ontario, it was resolved that the said Judges were of opinion that it was reasonable that tlu; piesent Official Guardian ml Utr.m of Infants being allowed to continue his general practice, should be paid a clear \'early salary of $2,500. And whereas, by an order made by His Honour the Lieutenant-Governor in Council, bearing date the 15th day of April, A. D. 1882, it was Ordered that the Report of the Honorable the Attorney-General, with reference to the office of Official Guardian ad lilviii of Infants of the High Court of Justice, and appointing John Hoskin, Esquire, to the said office, be acted upon. And whereas, in the said Report, which bears date the 15th day of April, 1882, it is (amongst other things) stated as follows : . " The money now at the credit of the account of Official Guardian ad litem is not sufficient to pay the Guardian's salary and disbursements, but the amount earned since the commencement of the Act is estimat- ed as adequate to pay the said salary and all dis- bursements. Mr. Hoskin is willing that his disburse- ments shall be the first charge on the fund from time to time, at the credit of the said account, and that his salary shall be paid according as there is money to SUPREME COIIIIT OF JUDICATURE RULES. 683 111 pay the same and applicable thereto. Mr. Hoskin Rule 530. reports the necessary expenses of the office of Official Guardian to be as follows : His oM'n salary $2,,')()0 00 Senior Clerk'a salary 1.600 00 Sucond do tlo l.l'fiO 00 Copying do do KiS 00 Messai,'u Hoys 00 00 Shorthand Writer 300 00 Kent 400 00 Stationery HUO 00 Making in all .«(),578 00 " The undersij^ned recommends that these particu- lars be approved of, if tiie JucIl^cs shall think the same reasonable, * * "It is intended that the said several sums shall be reckoned from the time of the commencement of the Act. " The Official Guardian is to discharge the work at Toronto, and in the Courts, and is not to delegate any of this duty to other Counsel, except in such special cases as the Attorney-LJcncral for the time being may direct. The Guardian is also to take motions in Chambers which involve argument by Counsel." Therefore, in pursuance of the 4th sub-section of section 66 of the ( ntario Judicatuie Act, 188 1, the Judges of the Supreme Court of Jud.cature f(;r Ontario deem it reasonable thai ;!i m'c shall be paid to the Official Guardi.tn at/ hlem of Infants a fixed annual salary as such Guardi.m, to iiic.udc the payment of all such assistants and clerks as he sh.dl employ, and to include also office rent and stationery, the sum of $6,578, which shall be over and above his outlay for postage, petty cash, and other disbursements ; and the said Judges order that the said salary and disburse- ments shall be paid quarterly, and shall be computed from the 22nd day of .August, 1881. And whereas by the said Report it was further stated as follows : " Tiie Judges are desirous that cer- tain duties connected with Mortgages and Policies of Insurance taken for Infants under the authority of the Court should be assumed by Mr. Hoskin, and a General Order for that purpose was passed. This work S.M, ^ i/ M ! u:;:'' ir it 534 ADDITIONAL RULES OF COURT. Rules had not theretofore been the duty of the Guardian ad 636-538. litem, and the undcrsi^mcd is informed that thejud;4c.s are of opinion that the sum of $200 (two hundred dol- lars) per annum should be allowed therefor. The undersigned recommends that this allowance should be made in addition to the said sum of six thousand five hundred and seventy-eiirht dollars, it being under- stood that all other duties which may hereafter be assigned to Mr. Hoskin under section 66 {d), shall be performed by him without any additional allowance. The disbursements incident to the duties so required by the said General Order will be payable out of the money at the credit of the Suitors' Fee Fund Account or otherwise, as the Judces may from time to time direct." Therefore the said Judges in further pursuance of the said sub-section 4, deem it reasonable that there be paid to the said Guardian, out of the surplus inter- est fund, for services rendered by him under Rule or Order No. 507, the sum of $200 annually, commencini,^ from the said 22nd day of August, 1 881, and that such payment be made quarterly ; and in the event of the fund to the credit of the account of the Official Guardian exceeding the sum requisite to meet the said other charges, it is ordered, that the mone\- so paid out of the said surplus interest fund, be hereafter recouped out of the funds to the credit of the said account of the said Official Guardian. gg7 Monday, 5th February, 1SS3. omoehouis 537. It i.s Ordkrkd that exce t during vacations, High Court, ^j^j excepting Sundays, Christmas Day, Good Friday Easter Monday, New Year's Day, the birthday of the Sovereign, and any day appointed by General Procla- mation for a general fast or thanksgiving, the otlfices of the Court shall be kept open from ten a.m. till four p.m. during the sittings of the Divisional Courts, and at other times, from ten a.m till three p.m. 538 Wednesday, 27th June, 18S.3. election of 538. Ordered that the Judges to be placed on the ror'triaiof rota for the trial of Election Petitions for Ontario in Petmuu's. each year, under the provisions of the Controverted SUPREME COURT OF JUDICATURE RULES. 585 ]*'lcction.s Act for Ontario, shall be selected in manner Rules followin^L;, that is to say, the members of the Court of ^ass-io. Appeal, and of the Queen's Hcnch, Chancery, and Common I'leas Divisions shall, on or before the twenty-first day of November in every jxar, select by a majority of the members of such Court or Division one of the JudL,a-s thereof, for that purpose, and when it appears to the Judges on the rota, after due consid- eration of the list of petitions under the said Act for the time being at issue, that the trial of such election petitions will be inconvein'entU' delayed unless an ad- ditional Judge or Judges be appointed to assist the Judges on the rota ; in such case, on the requisition of such Judges on the rota, and to the number of the additional Judges required, this Court is from time to time as may be so required, to select by a majorit)' of votes of members of this Court i)rcscnt at a meeting or meetings to be called for that purpose, one or more of the Judges of this Court to try IClection Petitions for the residue of the current year ; and an}* Juugeso selected, whether by annual selection or by members of this Court, upon requisition as aforesaid, shall during that year be and be deemed to be on the rota A)r the trial of Election Petitions. MoNOAV, 17th Deccmbtr, 18SM. 539. [Biil<: 539 icas rescinded hij Rule o///, (i'^^j]. 539 540 540. Ordered that Rule 459 of the Judicature Act jj^„„,^ f^,^ be hereby rescinded, and the following substituted : siiiviuo. Unless otherwise specially ordered in the particular case, service of pleadings, notices, summonses, orders, rules, and other proceedings shall be effected before the hour of four o'clock in the afternoon ; except on Saturday, when it shall be effected before the hour of two o'clock in the afternoon. Service effected after four o'clock in the afternoon on any week day except Saturday shall be deemed to have been effected on the following day. Service effected after two o'clock on Saturday shall be deemed to have been effected on the following Monday. This Order shall take effect on and after the second ■day of January next. 1 n 4 i! i ii % •I J.I 686 ADDITIONAL RULES OP COUIlT. Rules Satukpay, 15th March, 1884. 641-544. ^^, ^^j j^^^ Master in Ordinary shall have the p.nv.iH ..r S''^"ic power, authority and jurisdiction as the Master in Master ill Chambers in respect of all causes and matters referred ui'Ii".'mciai to him or which may arise in his office. referees. (b) Any Official Referee upon the request of the Master in Ordinary, or of a Jud^e of the High Court may sit with or for the Ma.ster ; and while sitting for him shall have all the authority and power of such Master, but shall not be entitled to any fees. 542 Mi)ti'iii» f(ir Sjicedy jmlgineiits. 542. Ordered that Rule 324a be rescinded and the following substituted therefor : " Upon hearing of such motion the Court may grant the application on such terms and conditions as may be thought projjcr, or may refuse the same ; or instead of cither grantin<^ or refusing the same may give such directions for the examination of either parties or witnesses or fi)r the making of further inquiries or with, rrspcct to the further {irosecution of the suit as the ciicumstances of the case may require ; and upon such terms as to costs as the Court thinks riuht. 543 Fees on 543. Inactions in the High Court of Justice no be foi" '''''" reference to arbitration or other reference, or exaniiii- j'"i"'l^ ation for the purpose of discovery or examination of a judgment debtor on which fees may be pa\'able otherwise than in law stamps, shall be taken before the Judge of the County Court or Local Judge of the High Court, or Local Master being also a Judge of the County Court, by whom the order for such refer- ence or examination has been made. Reference in administration matters under General Order 638 of the Court of Chancery, and in partition matters under General Order 648 of the Court of Chancer}' ; and other like references in mortgage actions are excepted from the operation of this Rule. 544 Tariff of costs amended. Saturoay, 29tu March, 1884. 544. It is Ordered that the Tariff of Fees made by the Judges of the Supreme Court of Judicature of f'! i 8UPKE.MK COrUT OF JUDICATUUK HULKS. 587 Ontario on the loth clay of September, iS8i, be Kule 544 amended as follows : 1. There maybe an appeal b)' appointment without other notice from the Taxini; (")fficer in Toronto to •the Master in Chambers or to the Master in Ordinary pcndinj^ the taxation in all cases. 2. Item 12 in the said Tariff is struck out. 3. Item J3 in the said Tariff is struck out, and the following is substituted therefor : " 'J.S. To iiinoiul iuiy jdwuling wlicn the aiiii'inliiu'iit is propiT li^'J.OO." 4. Under the hcadin<4" " Draw inij I'leadinLjs," &c., after item 46 and as applicable to items 36 to 46 in- clusive, add " In specials or contested actions or mat- ters to be increased to sue!' s"un as the iaxin^" Officer in Toronto may think fit." 5. Item S3 in the said Tariff is struck out, and the following substituted therefor: " 8M. Notice of Motion in (Vmit f>r riiainltcrs, engrossiny and copy to serve per folio. . ??().;iO " 6. Under the headiuL^ "Perusals," item 91 in the said Tariff is struck out, and the followin*^ substituted therefor : "91 Of each of the jjleadings as delincd by tlic Act .*;i.OO." 7. Item 93 in the said Tariff is struck out, and the following substituted therefor : " 93 And in special or contested actions or matters or of interrogatories and cross interrogatories or commission such sum as the Taxing UHicer in Toronto thinks lit." \i- 8, Under the heading " Attendances," item 96 in she said Tariff is struck out, and the following sub- stituted therefor : " 9G. Necessary attendances consequent on the service of a notice to produce or admit, or an inspection of documents when produced under order including making admission alto- gether $1.00." 588 ADDITIONAL RULES OF COURT. Rule 544. 9. Item 100 in the said Tariff is struck out. 10. Item III in the said Tariff is struck out, and the following" substituted therefor ; "111. Attciulinico on wiiirant or appointment of Master, Kegistrar, Ivxaininor, or UuferL'o, per hour .SI. 00." 11. Item 115 in the said Tariff is struck out, and the following substituted therefor: " 115 On iinportan*, points and matters rc(|uiring the atlcnilanco of counsel the .Master or Kx- aniineror I'cferee, .hnl^^nient ( Mcrk. or Ins)i"otor of Titlts may ecrtity the amount of co .nsel fee ])roper to he alloweil (to he noti!(l at tlie time) for till' iiuidauee of the Taxing ( Mlieer in Toronto wlio may allow the same in lieu of feed for attendance." 12. Under the hcadintr " Court hV-es ''Term Fees)," item 120 in the said Tariff is struck out, and the fol- loA'ing substituted therefor : " I'JO. I"'ee after statement or where st.-itemcnt ilis- pensed with aftei' liling writ, on ilefiMiee, joinder of issue, trial or argument hefore Courts, or any other step in the eanse, an 1 the day appointed for the hearini; thereof. .See notes to Uiile UtI. VII. All rules or orders nUi directed to be issued P"''''*'"''"'t'> 1 T 1 1 1 1 1 r 1 1 11111 l"iir-aiiy bj- the Jutli^e sliall be four-day rules, and shall be set mics. down to be heard at the first sittings of the Jiid.L;e in open Court, for ari^uments after the same are return- able, unless otherwise ordered b)' the said Judi^^e. 111.' (it I'lO- Mil. The proceedings before a Judi^^e sittintj^ as aforesaid shall shew on their face in any jud^ineiit, decree, rule, or order to be i^iven or made that the Jii'i«'!. business was carried on before a sini^Ie Judy;e, as fol- lows:— "In the llii^di Court of Justice for ()nlario. Bi fore the lion. Mr. Justice " [timfiiin/ //le IX. It is ordered that the Dixisional Courts i^C the lh\;h Court ilo meet on Tuesday, the t\vent)'-lliird da\' of AuL;ust, instant, at eleven o'clock, a.u). Till i:si)AY, 'J.lth .Vugu.st, ISSI. X. All mortj^a^^es, stocks, fimds, amuiities, and s.-'uriti-s securities, and all interest and estate therein ; and all A.Mnmi't'mt int^ncvs and effects standi iil;- in the name of the Ac-""^"''-^""'' eniiiUant of the Court of Chancery or the Rc'feree in Chaiubers, or any other officer named b)' the Court of Chanciry, or in the name of the CLrk of the Crown and Pleas of the Court of (Jueen's Heiich, or of the Clerk of the Crown and I'leas of the Coiumon Pleas, on the 2 1st day of Au^i;ust, i8Si, be and the sainc.ne hereby transferred to and vested in the Ac- countant of the Supreme Court as such Accountant, subject to the same trusts as respectively 'ttach thereto, and the same ofiTicers are to execute all neces- sary cheques or ilocuments to effect a formal transfer thereof See sec. 68, sub-sees. 2 and 3 of tlie Act. tit i.'*I 1! m M ;ii> ; i ■ ! i TARIFF OF FEES MADK BY THK JUDUICS Ot' Till': ,Si;iMM-]ME COURT {>[' JUUIOATURI': OF ONTARIO. The IOtu Day of Sepiember, A.J). ISSl. From and after the twenty-second day of August, iS8i, the TAlJLii OF Costs followin^u^ shall be rhat according," to which all costs in Civil Actions in i;hc Hiijh Court of Justice for Ontario shall be allowed and taxed, and no other fees, costs, or charges di.iii therein set down shall be allowed in resj^ect of the matters thereby provided for. Noitlicv the Tiixiiitf OtHcer nor a single Judge h:vs any discrotion to exceed the anioiiut siieeitied \)y the larili' where no power to in- crease is tliere)>y given (AV J'otloi, 8 i'r. 11. [>. 380). Where an action is l>rougiit against a solicitor wlio defends it in person and obtains judgment, lie is entitled u[)in\ taxation to tiiu same costs as if he hail employed a solicitor except in re3[)eet of items which the fact of his acting directly renders unnecessary [LuihIdh ScultUh JioKjit ■Sorht;/ v. V/iorlri/, '•> Q 15. D. 4iy2). U'lieiv ho uominally appeared hy a solicitor but did the work liiniseif, the same costs were held to be taxable (Kiinj v. Mui/cr, 1) Pr. oH). As to when defendants should appear by the same solicitor, or may a[>pear by seiiarate solicitors, see Morijdii i4, clause 2. COPY AND SERVICl': ()!■" WRITS OF SUMM(.)NS, AND OTHER PROCESS. 13 For copy, including copy of notices required to be indorsed, each 1 00 If over four folios, for every additional folio 10 The Taxing Officer lias no discretion to reduce the charge of $1 where less than four folios (i'lKjc. V. Canada Piiblitihinij Co., 19 C. L. J. 17o ; .'J C. L. T. 267). 14 Service of each copy of writ, if not done by the sheriff or an olHcer employed by him when taxable to solicitor on sheriff's default 1 00 15 If served at a distance of over two miles from the nearest ])iace of business or of- fice of the solicitor serving same, for each mile beyond such two miles 13 IG (For service of writ out of jurisdiction, such allowance to be made as the taxing officer shall think tit.) 38 593 r. *. -.!.( wi ' t I ■:i: ■ i ii.) ' f:; '•■ i.^ 594 ONTARIO JUDICATURE ACT, 1881. INSTRUCTIONS AFTER COMMKNCEMENT OF ACTION. 17 To counsel in special matters $1 00 18 To counsel in cofiimon matters 50 19 For spe'ial aftidavits when allowed by the taxiiifji: otKcer 1 00 20 For iileadin^s in action 1 50 Tliis is (inly alloweil once in the course of the action {Torrance v. Torraucc, I) Pr. K. 271 ; 2 C. L. T. 311). 21 For counter-claim, when such claim could not hei'etotbre form the subject of a set- off 2 00 22 ' )r reply to such counter-claims 2 OO 23 lTo amend any ]ileading when the amend- ment is i>roper.] 2 00 AnKn(lc4-t I'.i) so as to read as aliovo. Tlic itcni orijiinally read: " 2.S. 'I'o amend any jiloading ^vh^•n tiie amendment is occasioned by a pleading other than a denuirrer of tlic ojiposito party .s2.()0." 24 For con^c^sion of defence under Kule 157.. 2 00 25 For s])ecial case in course uf action 2 00 2G For special case when no writ issued, or pleadiiiiis had, and no instructions to sue allowed 3 00 27 To add ])artics by order uf Court or Jud<;e. . 2 00 28 For brief \. . . 2 00 29 For every sugojest i' »n 1 (H) 30 Yov adding parties in consequence of mar- riage, deatli, assiirnment. Arc 1 00 31 For issue of fact, by consent, or Judge's order ' 2 00 32 To defend added parties after suggestion of death of orii^inal iiartv. or on revivor. . 2 00 ?3 For confession of ait ion in ejectment as to the whole, or in ])art 1 00 34 To strike or reduce special jury 2 00 35 For such other im]>ortant step or proceeding in the suit as the taxing officer is satis- lied warrants such a charge 2 00 lustructions for appeal $2,00, is proi)er {Barbtr V. Morton, 2 C. L. T. 340). A.CTION. • $1 00 • • 50 le 1 00 . 1 50 le Id 42 t- . 2 00 43 2 00 d- 44 • 2 (H) 45 40 'C. ny a ito )." • • 2 00 2 (III :>r 47 to 48 3 00 2 00 . 2 00 49 1 (MJ r- 50 • 1 00 's 2 00 of 51 2 00 52 1 00 • 2 00 1 p? 1 ' s- tr 2 00 TARIFF OF COSTS. DRAWING PLEADINGS, kc. 30 Statement of claim $2 00 37 If above ten folios, for every folio above ten, in addition 20 38 Statement of defence, if five folios or under 2 00 39 If above five folios, for every folio in addi- tion 20 40 Statement of defence and counter-claim, up to fifteen folios 3 00 For every folio over fifteen 20 Reply and (.»tlior pleadiniis for or on behalf of ])laintift' or defendant 2 00 If above ten folios, for everv folio in addi- ti(.n ^ 20 Demurrer 2 00 Petition, per folio 20 Issue for trial ot facts by ai»;reement or order, for every folio 20 [In special or cjntested actions or matters to be increased to such sum as thetaxinir olKcer in Toronto may think fit.] This claui^e is juliluil l)y ilulo iiH (4). and is ap- plioablo to items .'30-40 inclusivo. Spe(rial case, ]^tv folio 20 Drawinty interrou'atories or answers for anv ])urposes rufpiired by huv, including en- grossing, per folio 20 (The above chitrj'es include en<;'rossiiier folio 20 58 Of summons, or order, of a judge 50 NOTICIvS, INflA'DTNCr COPY. 59 Of appearance, ^vllen duly entered and notice given on tlio day of ajipearance, but not otherwise GO To sheriff, to discliargG i)risoner out of cjistody 01 Notice, in action for recovery i>\' lantl, to defend tor part of premises; not to bo allowed when defence liuiired by aj)pear- ance 02 If above three folios, per folio in addition. . 03 Noti(te of claimant's or dcfendaiit's title in action for recovery of land, same fees. 64 Notice of entry of appearance; in a(ttion for recovery of land by a party not named in writ 05 Notice of admission of right and denial of ouster by a joint tenant 00 If above three folios, for every folio addi- tional 07 Of discontinuance and one copy 08 For every additional copy, per folio 09 Of disputing amount of (daim .... 70 Of confession of action in action for recovery of land, as to whole or |)art 71 Notice in lieu of statement of claim, and one coi)y 72 For every additional copy, per folio 73 Of trial or assessment and one copy 74 For every additional copy, per folio 75 Demand of residence of plaintifi" 66 Demand of names of partners 77 All common notices not above specilied . . 78 Notice to admit and produce, if not exceed- ing two folios, and one copy 50 50 1 00 20 50 50 20 50 10 50 50 50 10 50 10 50 50 50 50 ISC . . $1 50 . . 10 . . 75 08, . . 20 .. 50 50 50 I 00 20 50 50 20 50 10 50 50 50 10 50 10 50 50 50 50 TARIFF OF COSTS. 79 For every additional copy, per folio $0 10 80 For each necessary folio above twf> 20 81 Notice of setting down on motion for judg- ment, or on further direction and one copy 50 82 For every additional co]>y, per folio 10 83 [Notice of motion in Court or Chambers, en- grossing ajul cojiy to serve, per Iblio] . . 30 This item, originally .20, was changed to .30 by Rule 514, clause 5. 81 For every additional copy, ])or folio 10 85 Notice of taxati(jn or appointment to tax, and one copy 50 8(5 For every additional copy, jior folic* 10 87 For prej)aring and filling up for service in any cause or mutter, eacii notice to credi- tors to prove ftiaims, and each notice that cheques may i)e received, specifying tlie amounts to bo received for i)rincipal and interest, and costs, if any — includ- ing mailing 25 88 Notice of filing atlidavits, wIkmi required, and one ('opy (only one notice to be al- lowed for a set of affidavits filed, or which ought to be filed, together) .... 50 80 For every additional ('opy, ])er folio 10 90 Notice by defendant to third party, under Rule 108 1 00 PERl'SALS. 91 [Of each of the pleadinijs as defined bv the Act " 1 00 Anieuiled so as ti> read as above, i)y llule .144 (G). Tiie item originally read as follows : — "01. Of statement of claim or statement of de- fence, including counter claim, if any, if state- ment or defence spacial and raise ditKcult questions for ccmsideratiou ij^LOO 92 Of special case by the solicitor of any })arty, exccjit the one by whom it is pre- ])arod, when case is submitted in the course of the cause 2 00 597 n ' ii 'i ' ' ' I'l 11;;! ■ iiiil il' m ^^' 698 ONTAHIO JUDICATURE ACT, 1881. 93 [And ill sjiecial or contested actions or mat- ters orot interrof]ratoric8 and cross inter- roijatories on coniniission sncli sum as the Taxing Ofticor in Toronto thinks fit). Amoiulud by Itule 544 (7) so as to read as above. Tho item originally read as follows : — "U.3. Of interrogatories and cross interrogatories 1 on commission §1,00." See note to item 172. 94: Ol'aftidavits and exhibits of a party adverse in interest, filed or produced on any ap- l)licatiun. where thej exceed 20 folios, so far as their perusal is necessary, per folio, over 20 folios 95 Not in any case to exceed the sum of $5. 50 ATTENDANCES. 9G [Necessary attendances consequent on the service of a notice to produce or admit, or an inspection of documents when produced under order inclndino; making admission altogether] 1 00 Amended l)y lUile 544 (8) so as to read as above. The item originally read as follows: — " 1)G. Necessary attendances consequent on the service of a notice to produce or admit, including making admission, altogether §1.00." 97 (To be increased by taxing ofHcer in case of a S]>ecial, difficult and important nature to $2.) 9S For summons in Chambers, including draw- ing and obtaining sam(! 1 00 99 Attending on return of sunnnons or notice of motion in Chambers, to be increased in the discretion of the presiding officer to $2 1 00 100 {Such increase to he marked at the time the order is made.) This item was struck out by Rule 544, clause 9. 101 On consultation or conference with counsel in special, difficult and important matters in the discretion of the Taxing Officer in Toronto ^ 2 00 See note to item 172. TARIFF OF COSTS. 1()2 (And to bo incrctised in lua discretion aa between solicitor and client, to such sum as be shall see lit.) I(i3 Solicitor attendin3 On revision, ])er hour, when attendance required by taxing officer, or I'evision had on notice or iu'der 1 00 1<)9 To obtain or give undertaking to ajtpear, when service accepted by si solicitor. ... 1 00 1 10 Attendance to tile or serve 50 111 Attendance on warrant or apj)ointment of Master, Registrar, [sjjaijil] Kxamiriuror Keferee, per hour 1 00 This item was amended by Mule .')44 (10), so as to read as above without the word "special." 112 To be increased in the discretion of the Taxing Officer in Toronto to not exceed per hour . 2 00 See note to item 172. 113 Attendance on Master or Registrar in special matters, per hour 00 114 Every other necessary attendance. . . .. 50 699 'i iM #. t^ IMAGE EVALUATION TEST TARGET (MT-3) /. 1.0 I.I 1.25 25 2.2 1^ '2.8 tii 124 li: 1^ 12.0 ■UUU 1.8 U 11.6 Hiotographic Sciences Corporation 23 WEST MAIN STREET WEBSTER, N.Y. H580 (716) 872-4503 # «^ L

pearaiice, besides above al- lowance for a]>pearaiice ; not to be allowed when notice of limiting defence served 1 00 ■ 6011 IH I'M !:• ■l WA , 1. ( I K 1 v\ i i 1 ' I in : :,k:Mil :! ! i <602 ONTARIO JUDICATURE ACT, 1881. JUDGMENT, RULES, OR ORDERS. 133 Drawing (a) minutes of judgment or order, per folio, when prepared by solicitor, under directions of Registrar or Judg- ment Clerk 20 Amended by Rule 544 (14) so as to read as above. The original item had at (a) the word "special." 134 Judgment for non-appearance on specially indorsed writs, and in action for re- covery of land 1 00 135 Attending for appointment to settle or pass judgment or order of Court, copy and service 1 30 This item, originally .80, was increased to .$1 30 by Rule 544, clause 15. 136 When served on more than one party, the extra copies and services are to be al- lowed. 137 For every hour's attendance before proper oflicer on settling minutes, or passing . . 1 00 138 (To be increased in the discretion of the officer i/i special and difficult cases, when the solicitor attends personally, to a sum not exceeding altogether) 5 00 LETTERS. 139 Letter to each defendant before suit, only one letter to be allowed to any defend- ants who are in partnership, and when subject of suit relates to the transactions of their partnership 50 140 Common letters, including necessary agency letters , ... 50 Necessary letters between a solicitor and his agent on the business of the cause are taxable as between party and part}'-, whether the agent resides in the county town of the county in which the solicitor resides, or in another county, or in Toronto (Agneio V. Plunkett, [) Pr. R. 456). 141 With power to the Taxing Officer as be- tween solicitor and client, to increase the fee for special and important letters to an amount not exceeding 2 00 tiiii TARIFF OP COSTS. 142 Postages — the amount actually disbursed. Necessary letters and attendance incurred in obtaining the decision of the Taxing Officer in Toronto relating to charges upon which a decision by him is required, in regard to increasing fees, &c. are taxable under Rule 544 (19). 603 SALES BY MASTER OR AUCTIONEER. 143 Drawing advertisements for the sale of real or personal estate, under the direction of the Court, including all copies, except for printing $2 00 144 And for each folio over five, per folio. ... 20 (To be increased in the discretion of the Master to a snm not exceeding ten dol- lars, when special information has been procured for the purpose of sale.) 145 Copies for printing, per tolio 10 14o| Each necessary attendance on printer.. 50 This item was added by Rule 544 (16). 146 Attending and making arrangements with auctioneer 1 00 147 Hevisiug proof 1 00 I':' > Fee on conducting sale when held where solicitor resides 5 00 149 If solicitor is engaged for more than three hours, for ever}' hour beyond tiiat time. 1 00 150 Fee on conducting sale elsewhere, besides all necessary travelling and hotel ex- penses, when solicitor attends with the approval of the Master previously given. 10 00 151 If the sale occupies more than one day, the Master mav allow him, in addition to his travelling expenses, per diem, a sum not exceeding twenty dollars. 152 (The Master may also allow to one other party to the suit his fees and expenses for attending sales, if, in his opinion, it is necessary and proper that he should attend.) !i ' I, i i: i I I t U ! ; !:li :'■■'<'>' • 1 : 1 : i fi j. ■vM-fif \ 1 ..n . 1 ! g/l! ■i,' i f : !||:f ) 'i f i M f '' f Liii III 604 ONTARIO JUDICATURE ACT, 1881. MISCELLANEOUS. 163 Statement of issues in Master's office when required by the Master $2 00 [In sjiecial matters to be increased in the discretion of tlie Taxing Otficer in To- ronto.] This clause was added by Rule 544 (17). See note to item 172. 154 For eacli folio over 10 20 155 (When it has been satisfactorily proved that proceedings have been taken by solicitors out of Court to expedite proceedings, save costs, or coinjiroitiiso actions, an rllow- ance is to be made therefor in the dis- cretion of the Taxing Oliicers in Toronto.) Charges for proceedings taken to save expense are taxable whether taken between the solicitors for the parties or by one party ( Torrance v. Torrance, 9 Pr. K. 271). See also Rule 442. Sf" note to item 172. 156 Drawing bill of costs as between party and party ibr taxation, including engrossing and copy for taxing officer, per folio. ... 20 157 Copy, per folio, to serve 10 COUNSEL FEES. 158 Fee on motion of course, or on motion for order nisi^ or on motion to make order absolute in matters not special 2 00 159 On special motion for order nisi, and on special application to the Court, only one counsel tee to be taxed 5 00 (To be increased to §10 in the discretion of the Taxing Officer in Toronto, who shall mark amount to be taxed on order of Court, if any, before taxation.) See note to item 172. 160 Fee on arguuient on supporting or opposing application to the Court, orders nisi or argument of demurrer, special case, or appeal 10 00 TARIFF OF COSTS. 605 161 To be increased in the discretion of the Taxino; Officer in Toronto. See note to item 172. 162 Fee with brief on assessment $10 00 163 Fee, witli l)rief, at trial 10 00 16i To be increased by taxinf^ officer in Iiis dis- cretion to a sum not exceediiif^ 820 to senior counsel, and $10 to junior counsel, in actions of a special and important nature, provided tliat the Taxing Officer in Toronto siiall have power to tax in- creased foes, but more than one counsel fee shall not be allowed in any case not of a special and important nature, not more than two in any case. See note to item 101. Exeept in arties to the cause, when called upon to give evidence of any professional service rendered \)y them, or to give evidence depending upon their skill or judgment, per diem 4 00 An auctioneer was held entitled to foes as a T)ro- fessional witness in h'c Worl-'nnjtnoi'ii Mtttual Soc, 21 Ch. 1). 831, an 1 it vva- there held also that the witness though sworn might refuse to answer until paid the fee to which he was entitled. 151 If the witnesses attend in one case only, they will be entitled to the full allow- ance. If they attend in more than one ease, they will be entitled to a pro[)or- tionate part in each cause only. 182 The travelling expenses of witnesses, over three miles, shall be allowed, according to the sums reasonably and actually paid, but in no case shall exceed twenty cents per mile, one way. See Picasso v. Trustees of Maryport Harbour, W. N. 1884, 85 ; 28 Sol. Jour. 391, where costa of keeping a witness until the trial, were allowed under special circumstances. The Ontario Rules and Tariff do not seem to authorize such au allow- ance. ' TT FT ■Ill : ; ! V 1 ' ' } 1 , > 1 i' ■'i^i 1 P . 1 • li'h ' 1 1 1 ' 1 H 1' 1 i 1 ■ • ii I 1 IS s ^1 * G08 ONTARIO JUDICATURE ACT, 1881. Amongst the of>sta of the day (riven to a ilcfen- (lant on an adjourninent of tin.' trial, his txpennes weie allowed where his eoiniHel eertilied that ho could not have proceeded without him ; anil it was held that it was premature to say at th.'it stage of the cause that no matrrial evidence could he given l)y defendant (Uoodj'illow v. Sliuttli worth, .'} C L. T. 10.-)). The travelling expenses of a ))laintiir who was a necessary and material witness in his own ludialf, and came from Mngland to give evidence at the trial, Avas allowed his expenses (Fax. v. Toronto anil Nipl'^xinij I'lj. Co., 7 I'r. K. 157). The costs of executing a commission are entirely in the discretion of the Taxing Ollicer (V>). .See also Colbornc v. Thojiuiii, 4 Or. IG'J. 183 XoTE. — III ta.xiriii; costs l)et\veoii solicitor and client, the Miistcr may allow for services reiulered not [)rovi(le(l for by this tariif, a rcjasonahle con)})ensatioii, as far as practicable analogous to its [)rovisions. J. G. SPllAGGb; I'residoit oj the Siipremi' Cuitrt of JudkaUin fur Ontario. Though a Taxing Ollicer has a discretion in the taxation of costs as lietween party and party and the same discretion as between solicitor and client, still it by no means follows that what is reasonal)lo in the former case is also reasonable in the latter . {lie Bhjtii lO Fannhawc, 52 L. J. Cliy. 18G). '■! 'i ^ ' APPENDICES TO THE FOREGOING RULES. tui'e for Ontario. APPENDIX (A). PART I. FORMS OF WRITS OF SUMMONS, AND NOTICE IN LIEU OF SUMMONS. No. I. Generai- Form of Writ of Summons. (See Act of 1875, Appendix A, Part I., No. 1. ; R. Sup. C, April, 1880, Schedule, Form A, In.) In the High Court of Justice. Division. Between A. B., Plaintifif, and C. D. and E. F., Defendants. V^lCToRiA, l)y the Orace of God, ctr. To 0. D. of in the county of and E. F. of We command you, that within 10 days after the service of this writ on you, inclusive of the d.iy of such service, you cause an appearance to be entered for you in an action at the suit of A. B. ; and take notice that in default of your so doing the plaintiff may proceed therein, and judgment may be given in your absence. H'itness, the Honourable President, liic. Memorandum to be subscribed on the writ. N.B. — This writ is to be served within 7,;^ calendar months from the date thereof, or if renewed, within 1^2 calendar months from the date of such renewal, in- cluding the day of such date, and not afterwards. The defendant [or defendants] may appear hei'eto by entering an appearan(!e {or appearances] either personally or by solicitor at the [ J office at Indorsements to be made on the writ. The plaintiffs claim is for, cCr . Where the writ is to be specially indorsed add : — The following are the particulars : — (Giving them. See Part II. post.) This writ was issued by E. F. , of solicitor for the said plaintiff, who resides at , or, this writ was issued by the plaintiff in person who resides at [mention the city, town, or township, and also the name of the street and number of the house of the plaintiff's residence, if any, or in case of a township, the Humher of the lot and concession.] Indorsement to be made on the writ after service thereof. This writ was served by X. V. on C. D. [the defendant or one of the defendants], oa Monday, the day of 18 . (Signed) X. Y. m If! . ! 610 ONTAIUO Jl'DICATUUE ACT, 1881. No. 2. Wurr KoR Skrvk K oi r ov Ontauio on wiikuk .N'ottck in liiEU ok SKHVICK I.»i TO UK (ilVKN Ol.T OK DNTAItlO. (.S-w Act of I.S7."), Ajipendix A. Pt I., No. 2; 1!. Sup. C, June, 187ti, I!. 2; 11. Sup. (!., April, 1880, Sohuilule, Fuim A, 2(t.) In the High Court of JusticL". i^ivision. Between A. li., Plaintiff, and V. 1). and E. F., Defendants. Victoria, hy the Grace of (Jod, &c. ToC. A, of ^V'e command you, C. D., tliat witiiin [hr re Insert tlu' uinnht'r i,f dayn dirertnl hi/ < hubr II.. ora.s /lie rit.sc nun/ he] after the service, on ii'ou, of this writ and of the plaintitKH statement of claim delivered lerewith [or iiolicc of (/ii'< trrit, a.i tin' cii.te mtii/ l)i'\ inclu.sive of the day of such service, you cause an appearance to l)c entered for you in an action at the suit of A. li., and your defence thereto, if any, to he delivered ; and take notice that in default of your .so doing the plaintiff may proceed therein, and judgment may he given in your a)>sence. Witness, the Honourable President, &c. Mamurandum and indorsements n.s in Form No 1. Indorsement to he made an the writ, X. B.. — This writ is to l)e used where the defendant or all "^l" ■defentlants or one or more (U'fendant or defendant.s is or are out of Ontario. Wlien tlu; defendant to he served is not a British subject, and is not in liritish dominions, notice of the writ, and not the writ itself, is to be served upon him. Indorsement to f>e made on the icrit after service thereof: This notice was served l)y A'. }''. on G. II. (the defendant or one •of the defendants) on the day of 18 . Indorsed the day of 18. (Signed) (Aildress) No. J5 KoricK OF Writ, is Liku of Service, to be cjiven out of Ontario, (See Act of 187"). Ajipcndix A, Pt. 1 No, .3 ; K. Sup. C, June 1876, I!. 2; Iv. Sup. C, April, 188U, Schedule. Form A, 3rt.) In the High Court of Justice. Division. Between A. li., PlaintilT, and C. I)., E. F., and G.H., Defendants. To G. H., of Take notice that A. B., of has commenced an action against you, G'. H., in the Division of Her Majesty's High Court of Justice in Ontario, by writ of that Court, dated the day of , A. D. 18 ; which writ is indorsed as follows [copy in full the indor.iements], and you are required within [ ] days after the receipt of this notice, inclusive of the day of such receipt, to defend the said action, by causing an aiupearance to be entered, for you in the said Court to the said FORMS — INDOUSEMRN'TS ON WUIT. 611 TCK IN Lieu op ). Sup. C, June, ji-m A, 2(1.) ianta. I till- inimhcr uf the service, on uliiiui (lelivercil ncluHivo (if the entered for you thereto, if any, your s(t doing lay be given in action, and your defence thereto, if any, to he delivered ; and in iktault of your ho doing, tlie said ..1. H, may jirociicd therein, and judgment may heyi\en, in your absence. You may appear to tlu- said writ l)y entering an appearance por« sonally or i>y your scdicitor at the [ ] olliee at Dated, &c, (Signed) .1. B., of &c. i>r X. }'., of &c. Solicitor for A li. N. B. — This notice is to be used when the person to be served is not a British subject, and is not in liritisli dominions. Jmlorsinieitt to he male on tin- mrif at'tir Krrr'tri' tltnu-of : Tiiis notice was served by A'. )'. on (/, //. (Uic defendant or one of the defennt. upon a cheque drawn by the de- '''" "^ '-x- ^ ^ ■^ clianyu, &c The plaintiff's claim is 8 for money paid for calls upon shares, Money paid against which the defendant was bound to indemnify the jdaintiff. ^' ■ The plaintiff's claim is f for money payable under award. The plaintiflTs claim is $ life of X. F., deceased. The plaintiff's claim is .? §1,000, and interest. The plaintiff's claim is $ Court, in the Province of Quebec The plaintiff's claim is § fendant. The plaintiff's claim is .? upon a bill of exchange aoccjitod [or drawn or indorsed] by the defendant. The plaintiff's claim is $ upon a promissory note made [(/?• in- dorsed] by the defendant. The jdaintiffs claim is $ against the defendap* A. B. as accep- tor, and against the defendant C. D. as drawer [or indorser] of a bill of exchange. The plaintiff's claim is !? against the defendant as surety for 'Surety, the price of goods sold. The plaintiff's claim is -S against the defendaTit A. li. as ]>rin- cipal, and against tlie defendant C. J), ixs surety for the price of goods sold [nr arrears of rt^nt, or for money lent, or for money re- ceived by the defendant A. B., as traveller for the idaintiff's, or, d-c] The plaintiff's claim is $ ag.ainst the defendant as a ., from injuries received wmle a ^"^'^''* ^''*- passenger on the defendant's railway, by the negligence of the defendant's servants. The plaintiff 's claim is for damages for breach of promise of Promise of marriage. Marriage. The plaintiff's claim is for damages for the seduction of the plain- Seduction, tiff's daughter. The plaintiff's claim is for damages for breach of contract to gale of accept and pay for goods. g '"ods- The plaintiff's claim is for damages for non-delivery [or short delivery or defective (juality, or othe breach of ontri-ct of .saU;] of cotton [or, .(r.] The plaintiff's claim is for damages for breach of warranty of a horse. The plaintiff's claim is for damages for breach of a contract to Sale of land, sell [or purchase] land. The plaintiff's claim is for damages for broach of contract to let [or take] a house. Mi 'a :! I '' f ii I! .: 1; ! -. B«n m Mil 616 Trespass to land. Support. Way. Water- course, &r. Pa8tur3. Light. Patent. Copyright. Trade mark, Work. Nuisance. Innkeeper. Claim for return of gOii(l8 ; damages Ejectment. ONTARIO JUDICATURE ACT, 1881. The plaintifir,s claim is for damages for breach of a contract to sell [or purchase] the lease, with good-will, fixtures, and stock-in-trade of a public house. The plaintiffs claim is for damages for breach of covenant for title [or for quiet enjoyment, vr, &c.l in a conveyance of land. The plaintiff's claim is for damages for wrongfully entering the plaintiff's land and drawing water from his well [or cutting his grass, or pulling down his timber, or pulling down his fences, or removing his gate, or using his road or path, or crossing his Held, or depositing sand there, or carrying away gravel from thence, or carrying away stones from his river]. The plaintiff's claim is for damages for wrongfully taking away the support of plaintiff's land [or house, or mine]. The plaintiff's claim is for damages for wrongfully obstructing a way [public highway or private way]. The plaintiff's claim is for damages for wrongfully diverting [cr obstructing, or polluting, or diverting water from] a watercourse. The plaintiff's claim is for damages for wrongfully discharging M'ater upon the plaintiff"8 land [or into the plaintiff's mine]. The plaintiffs claim is for damages for wrongfully obstructing the plaintiff's use of a well. The plaintiffs claim is for damages for the infringement of the plaintiff's right of pasture. [This form ahall he sufficient lohatever the nature of the right to pasture be.] The plaintiff's claim is for damages for obstructing the access of light to plaintiff's house. The ])laintifl''s claim is for damages for the infringement of the plaintiff's patent. The plaintiff's claim is for damages for the infringement of the plaintiff's copyright. The plaintiff's claim is for damages for wrongfully using [ur imitating] the plaintiff's trade mark. The plaintiff's claim is for damages for breach of a contract to build a ship [or to reimir a house, '^ ill 618 Executor. Against executrix. Assignee in insolvency. Trustees. Heir and devisee. Qui tarn actiuu. ONTARIO JUDICATURE ACT, 1881. 4. The plaintiflTs claim is against the defendant ^ . ^. as acceptor, and against the defendant 6'. D. as drawer, of a bill of exchange. The following are the particulars : — Bill of exchange for $2,00(>, dated Ist January, 1880, drawn by defendant C D. upon and accepted by «lefendant A. B., payables months after date. Principal $2,000 Interest 5. The plaintiff's claim is for principal and interest due upon a bond. Tlie following are the particulars : — Bond dated 1st .Tanuary, 1879. Condition for payment of $500on the 26th December, 1879. Principal .f 500 Interest 6. The plaintiflTs claim is for principal and interest due under a covenant. The following are the particulars : — Deed dated covenant to pay .$.3,000 and interest. Principal due .f800 Interest No. 8. Sfction v. S. :•• .. .... Y., his wife]. The plaintiflTs claim is against ! t^efendant as heir-at-law of A. B., deceased. The plaintiflTs claim is against the defendant C. D., as heir-at-law, and against the defendant E. F. , as devisee of lauds under the will of A. B. The plaintiff's claim is as well for the Queen as for himself, for as executrix of ,s for himself, FORMS — SPECIAL INDORSKMENTS. No. 9. Section VI. Indorsements in Matters which formerly belonged to the exclusive juijisciction of equity. (a) Creditor to adminhter Entate. {See R. Sup. C. 1875, Appx. A., Pt., II., Section 2, No. 1.) The j)Iaintiff 'a claim is as a creditor of X. Y., of (U'ceased, to have the [real and] jjersonal estate of the said A'. Y., administered. The defendant C. D. is sued as the administrator of the said A'. Y. [and the defendants E. F. and 0. H. as his co-heirs- at-law]. [},) Legatee to administer Estate. {See n,., No. 2.) The plaintiff's claim is as a legatee under the will dated the day of 18 , of A'. Y. deceased, to have the [real and] personal estate of the said X. Y. administered. The de- fendant C. D. is sued as the executor of the said X. Y. [and the defendants E. F. and O. H. as his devisees]. [c] Partner-ship Account. (See Ih., No. 3.) The plaintiff's claim is to have an account taken of the partner- ship dealings between the plaintiff" and defendant [under articles of partnership dated the day of ], and to have the affairs of the partnership wound up. ((/) Bii tnortijaijee for sale and for immediate jjayment and jwssession. {See lb., No. 4 ; G. O., Chy., Sch. S.) The plaintiflf 's claim is on a mortgage dated the day of made between [or by dejiosit of title deeds], and that the mortgage may be enforced by sale, and payment to the plaintiff by the defendant personally of any balance. (If order for immediate payment is wanted add), and take notice further that the plaintifl' claims to be entitled forthwith to execu- tion against the goods and lands of you (naminy the defendant ayainst whom this order is claimed) to recover payment of the amount due by you. [If order for immediate possession is wanted add), and take notice further, that the plaintiff claims to be entitled to an order for the immediate delivery of the mortgaged premises to him. (f ) By mortyayee for foreclosure and for immediate payment and possession. (See Ih., No. 7 ; G. O., Chy , Sch. S.) The plaintiff's claim is on a mortgage dated the day of , made between (or by deposit of the title deeds), and that the mortgage may be enforced by foreclosure. (If order for immediate payment is wanted add) and take no- tice further that the plaintiff claims to be entitled forthwith to execution against the goods and lands of you (naming the defend- ant ayainst whom this order is claimed) to recover payment of the amount due by you. 619* 1 m ■ ■■■ ' !; 1 1 .'I ," : '1 : 1 , 1' . " r, j ! ■ li'lr J 1 t f i 1 ; [ i I- fir ru;! =■::!' I ; , 'I' Mi mm m ; i; ill '620 ONTARIO JUDICATUKB ACT, 1881. (//' onler fur imim'dhtti' po.'isrMshtn is lonnfed mid), and taki' no- tice furtluT that tlie plaintiff claims to be entitled to the immediate possession of the mortgaged premises. (At the end of thi> Indm-xemmt add), If you desire a sale of the mortgaged premises instead of a foreclosure, and do not inteiul to defend the action, you must withiu the time allowed for ap- pearance, file in the otHee within named, a notice in writing, signed by yourself or your solicitor, to the following effect : — ''I desire a sale of the iiiortgagcil jiremises in the plaintiff's writ of sumnioiis mentioned, or a coiup-.'tent part thereof, instead of ;i foreclosure," and you nnist (leposit the sum of §80 to meet the expenses of ruicli sale. (/) Jii/ Mortijatjor for n<'demption. (.SV K. Sup. C. 1875, App. A., Pt. H., s. 2, No. 5.) The plaintiff's claim is to have an account taken of what, if anythin<,^ is due on a mortgage dated ami made Ijetweon [[jarthit], and to redeem the jjroperty comprised tlierein. ('<' lb., No. G.) The ])laintiff's claim is that the sum of $ by an imlcnturc of settlement dateil for the p»'tions of the younger children of raised. (A) Execution of Trusts. (See Ih., No. 7.) The plaintifl 's claim is to have the trusts of an indenture dated , which was provided niav Ije execution. and made between Cancellat'ion or liectljication, {See Ih., No. 8.) The plaintiff "s claim is to have a deed dated between [parties], set aside or rectified. carried into and made U) Sperific Performance. See Ih., No. 9. The plaintiff 's claim is for specific performance of an agreement dated the day of , for the sale by the plaintiff to the defendant of certain [frcelio'd] hereditaments at (k) Alimony. {See G. 0. Chy., 'So. 4S8.) The plaintiff 's claim is for alimon.y ; and the plaintiff demands as interim alimony until the trial of the action the monthly (or weekly) sum of $ to be paid to her cm the artio,u- lars (acci- dent). To discharge or vary order. To dismiss action. n '•h ! I 622 OXTAKIO JUDICATURE ACT, 1J81. For dis- •covery of douumcntH. To insjieot dobiiiiients To examiiiu witness be- fore trial. For Coiii- niissi'iii to exiiiiiinewil- nUSHCH. To refer under seo tion 47 of ttie Act. To refer under sec- tion 48 of the Act. For compul- sory refer- ence to Master. For exami- nation of judsnient debtor as to means. Or, that the answer within •lays, stating what documents are or have heen in possession or power relating to the matters in question in this action ; Or, that the l)e at liberty to inspect, and take copies of, or extracts from , and that in the meantime all further proceedings be stayed ; Or, that a witness examined forthwith before on behalf of the be upon the usual terms ; Or, that the be at liberty to is-tue a commission for tlie examination of witnesses on behalf at , ami that the trial of this action be stayed until the return of such com- mission upon the usual terms ; Or, that the following question arising in this action, namely :— be referred for inquiry and report to under section 47 of the Judicature Act ; Or, that the in this action be tried by section 48 of the Judicature Act ; under For trial of action in County Court. For inter- pleader order (by sheriff). Or, that (this action or the matters of account in this action or the following questions in this action being nuitters of account, namely, &c.) be referred to the certiticate of one of the Masters of the Supreme Court o'' Judicature to award or certify ; Or, that the above-named judgment debtor be orally examined as to whether any and what debts are owing to liim, and do attend for that purpose before the Master in Chambers (or an the cnne iiiai/ he) at such time and place as he may appoint, and that the said judg- ment debtor produce his books, &c., before the said Master at the time of the examination ; Or, that this action be tried before the County Court of holdeu on Or, that the plaintiff and the claimant appear and state the nature of their respective claims to the goods and chattels seized by the above-named sheriff under the writ of Jieri fariaH issued in this action and maintain or relinquish the same and abide by such order as may be made herein, and that in the meantime all further pro- ceedings be stayed. No. 13. Notice of Application for Administration Order or Re- specting THE GUAKDIANSUIP OF AN InFANT. (,9eeC.O. Chy., No. 561.) In the High Court, Divisioru Between A, B., Plaintiff, and C. Z>., Defendant. To Mr. C. D. Take notice that an application will be made to , in Toronto, {or to at his office in the city (or town of &c., os the case may he), on the day of at the hour of o'clock in the forenoon, (or if opposed, then to a Judge in Chambers so soou thereafter as a Judge shall be sitting iu FORMS — NOTICES. Chambers, for an order for the administration of the estate, real and personal, of by the Court, ur for an order appointing guardian of an infant) ; and upon Hiuh application will be read the affidavits of tliis day filed. Dated, &u. X. y,, Solicitor for 623 ■i'li: ■' I ri I i I No. 13. Notice of Entry of Appearance. (SeeR. Sup. C, April, 1880). In the High Court (.f Justice. Division. Betweerr Plaintifi', and Defendant. Take notice, thn.1; have this day entered an ai)pearance at for the defendant to the writ of summons in this action. The said defendant re<(uire [or do not require] delivery of a statement of claim. Dated the day of 18^ (Signed) Solicitor for the defendant. To J^o. 14. Notice Limiting Defence. {See lb., Appx. A., Part 1, No. 7.) In the High Court of Justice. Division. Between A. B. plaintiff, and a D.. and E. F., defendants. The defendant, C. I)., limits his defence to part only of the property mentioned in the writ in this action, that is to say, to the north-west quarter of the lot. Yours, &c. , G. II., Solicitor for the said defendant C. D. To I! No. 15. In the High Court of Justice. Division. Between Notice Disputing Amount. Plaintiff, and Defendant. Take notice, that the defendant disputes the amount claimed by the plaintiff (or the defendant insists that the amount due to the plaintiff is $ only ; or the defendant insists that the \\:' :.f , I 624 ONTARIO JUDICATURE ACT, 1881. amount duo to tlio plaintifl* is $ fur principal and $ for interest, since the day of kc, and no more, aa the case may be. (Signed) Solicitor for the defendant, To No. 16. Notice in Lieu of Statement of Claim, (.SV*- lb., Form .3.) In the High Court of Justice. -Division. Between A. li,, plaintitT, and C. D., defendant. The particulars of the nlaintitJ' 's claim herein, and of the relief and remedy to which he claims to b.. untitled, appear by the iudorse- ment upon the writ of sumiuona. Dated, &c. A', r., Solicitor for Plaintiff, No. tH. Confession of Defence. (See K. Sup. C, Appx. (B) Form 2.) In the High Court. -Division. • paras: r villi Between A. B,, plaintiff, audj C. D., defendant. The plaintiff confesses the defence stated in the of the uefeudaut's statement of defence [or, of the defendant's fur- ther statement of defence]. Dated, &c. X Y., Solicitor for PlaintitT, No. 18. Notice by Defendant to Third Party. (SeeR. Sup. C, Appx. (B) Form 1. Act s. 18, sub-s. 4 ; Order 12, K. 19.) Notice filed day of In the High Court. Division. Between A. B., plaintiff, and C i>., defendant. To Ur. X. r. Take notice that this action has been brought by the plaintiff against the defemlaut [as surety for IV. J.V., upon a baud conditioned for payment of $10,01)0 and interest to the plaintiff". The defendant claims to be entitled to contribution from you to the extent of one-half of any sum which the plaintiff may re- cover against him, ou the ground that you are (his co-surety i!'!' ;he defendant. r for Plaintiff, r for Plaintiff, FORMS — NOTICES. under the said bond, or, also surety for the said W. N., in respect of the said matter, under another bond made by you in favour of till' said plaintiff, dated the day of , A. D. )]. Or fns acceptor of a bill of exchange for S'J.SOO dated the (lay of , A. D. , drawn ' you ui»on and aceepted l)y tiie defendant and payable 3montlis after date. 'Phi' defendant claims to tic iu.iiiunitiod by yo;i against liability under the said bill, on the ground that it was accepted f()r your accommodation.] Or, [to recover damages for a breach of a contract for the sale and delivery to the plaintiH" of 1,000 tons of coal. The defendant claims to \ni indeinniHed by you against lial)ility in respect of the saiil contract, or any breach tiiereof, on tiie ground tliat ii was ina-lc l)y him on j'our l)ehalf and jva your agent.) And take notice tiiat if you wish to dispute the plaintifT's claim in this action as against tlie deientlant C. I), you must cause an appearance to be entered for you witliin 8 days after service of this notice. In default of your so appearing you will not be entitled in anj' future proceeding between tlie defendant C. I), and yourself to disjiute the validity of the judgment in this action whether obtained by ctiiisciit or otlierwise. Dated, &c. (Signed) E. T. Or V 1' Solicitor for the defendant, E. T. Appearance to be entered at 625 No. VX lvdorskmbnt ov copy defence and countkr-claim to be Served on Tiiiku Party. (iS'cc lb., Form 4.) "To the within named X. Y. Take notice that if you do not appear to the within counter-claim of the within named C. /)., within 8 days from the service of this defence and cimnter-claim upon you, you will be liable to have judgment given against you in your absence. Appearances are to be entered at No. m. I.SUOR.SEMEST ON OrDKR AdDTNO OB CHANGING PARTIES UNDER Order -44. Take notice, that if you desire to discharge this order you must apply to the Court for that purpo.se within 12 days after the service hereof upon you. The original statement of claim in this cause is tiled in the office of the at (and if the service is after a judyment directing a reference to a Master or other officer, add) and the reference under the judgment in this matter is being prosecuted in the office of the at 40 w ■ ■■! !•! 1 I! i' ' !f r III mi 626 ONTARIO JUDICATURE ACT, 1881. No. ^t Notice of Paymrnt into Court. {See Jh., Form 5.) In the High Court of Justice. Division. A.B. V. C. D. Take notice that the defendant has paid into Court $ and says that that sum is enough to satisfy the Plaintiffs claim or the pliintiffs claim for, &c.] Dated, &c. To Mr. X. Y., the plaintiff's Solicitor. Z., Defendant's Solicitor. No. %% Acceptance of Sum paid into Court. (See lb., Form 6.; In the High Court of Justice, Division. A. B. V. C. D. Take notice that the plaintiff accepts the sum of $ paid ay you into Court in satisfaction of the claim in respect of which it is paid in. Dated, &c. X. J. ., Plaintiffs Solicitor. To^., Defendant's Solicitor. No. 3:j. Notice to Produce Documents. (See lb., Form 10 J In the High Court of Justice, Division. * A.B.v.C.D. 1 Take notice that the [plaintiff or defendant], requires you to produce for his inspection the following documents leierred to in your [statement of claim, or defence, or affidavit dated the day of A. D. ]. Dated, &c. [Describe documents required.^ X. Y., Solicitor to the To Z., Solicitor for iitifTs claim FORMS — NOTICES. No. /84, Notice to Produck (Gesebal Form). (See R. Sup. C, April, 1880, Schedule, Form B, 10a.) In the High Court of Justice. Division. Between Plaintiff, and Defendant. Take notice, that you are hereby required to produce and shew to the Court on the trial of this action, all books, papers, letters, copies of letters, an' 11 ! ■•« n\' J -^i ■ '■■1' ".I 1 1 - ' i ■'A ' i; :;;.i ;! ! i ; '■ t :• , ■■'1 ' ' ;■ ! '•i! h Solicitor or agent No. S5i Notice to Inspect Documents. (.S-ee R. Sup. C, Appendix (B) Form 11.) In the High Court of Justice. Division. A. B. V. C. D. Take notice that you can inspect the documents mentioned in your notice of the day of a.d. [except the deed mtmhered in that notice] at my office on day next the instant, between the hours of 12 and 4 o'clock. Or, that the [plaintiff or defendant] objects to giving you insjjec- tion of the documents mentioned in your notice of the day of A.D. on the ground that {state the yround] : — Dated, &c. X. Y., Solicitor for No. 26. Notice to Admit Documents (See lb., Form 12.) In the High Court of Justice. Division. A. B, vs. C. D. Take notice that the plaintiff {or defendant] in this cause pro- poses to adduce in evidence the several documents hereunder specified, and that the same may be inspected by the defendant [or plaintiff], his solicitor or agent at , on, between the hours of ; and the defendant {or plaintiflF] is hereby required, within four days from the said day, to admit that such of the said documents as are specified to be originals were respectively written, signed, or executed, as they purport .f 1 628 ONTARIO JUDICATURE ACT, 1881. respectively to have been ; that such as are specified as copies are true copies, and such documents as are stated to have been served, sent, or delivered, were so served, sent, or delivered resjiectivelv • saving all just exceptions to the admissibility of all such documents as evidence in this cause. X. Y. Dated, &c. Solicitor foi* To E. F., solicitor [or agent] for defendant [or plaintiff], G. II., solicitor [or agent] for jilaintift [or defendant]. [Here dfscrihfi the docmnents, the manner of doing which may be a$ follows ;] ORIGINALS. Description fif Documents. Dates. Deed of covenant betweed A. B. and C. D, first part, and E F. second part Indenture of lease from A. B. to C. D Indenture of release between A, B., C. D., iirst part, &c Letter— defendant to plaintiff I Policy of Insurance on goods by sliip "Isa-j bella," on voyage from Toronto to Kingston. . j Memorandum of agreement between C. D.,\ captain of said ship, and E. F. Bill of exchange for $500 at 3 mouths, drawn bv A . B. on and accepted by C. D. , indorsed by E. F. and G. H January 1, 1878. February 1, 1878. February 2, 1878. March I, 1878. July 3, 1877. August 1, 1878. May 1, 1879. COPIRS. Di'Rcriiition of Docmneuts. Register of baptism of A. B. in the parish of X Letter — plaintiff to defendant Notice to produce papers Record of a Judgment of the Court of Queen's Bench in an action, J. S. and J. N Dates. Original or diiplicnte served, sent, or delivered, wlien, how and by whom. January 1, 1848. February 1, 1848. March 1, 1878. Trinity Term, 10th Vic. Sent by General Post February 2, 1848. Served March 2, 1878 on defendants at- torney by E. F. of hick may be at FORMS -NOTICES. jfQ_ ^y Notice of Trial. (See Ih., Form \4). In the High Court of Justice. Division. A. B. V. C. D. Take notice of trial of this action {or the issues in tliis action ordered to be tried] at for the day of next -'Y. Y,, plaintifif's solicitor [or as the case may be]. Dated, &c. ToZ., defendant's solicitor [or as the case may be]. 629 No. 38. Notice of Entry of Oemurrrh for Ahgumemt. (See lb.., FormB. 18>. la the High Court of Justice. Division. Between Plaintiff, and Defendant. Tak3 notice, that hive this d.iy entered for argument the demurrer of the to the in this action. Dated the day of 18 (Signed) of To Solicitor for the No. 3J). NoriJB OF DrsCON'TISU.VNOK. {See lb. Form B. 19.) In the High Court of Justice. Division. Between Plaintiff, and Defendant. Take notice, that the plaintiff hereby wholly discontinues this action, (or withdraws so much of h claim in this action as relates, to, &c. ((/■ not against all the defendants add), "As against the defend- ant," &c. Dated the day of 18 (Signed) of Solicitor for the plaintiff. No 30. Notice of Cro*9-exa.minatiov of Deponksts at Trial on Affidavits. {See lb., Form B. 21 and Order 35, R. 4.) In the High Court of Justice, Division. Between Plaintiff, and Defendant. Take notice, that the intend at the trial of this action to cross examine the several deponents named and described in the schedule hereto on their affidavits therein specified. !t::Uii ;i. iiiJ 1- ..ill'.; ■■4 I' m » m I'M/ m 630 ONTARIO JUDICATUUE ACT, 1881. And also take notice that you are hereby required to produce the said deponents for such cross-examination before the Court aforesaid. Dated the day of 18 . Solicitor for the To Thk Schedule above referred to Name of Deponent, No. 31. Notice of R?;newal of Writ of Execution. (See lb., ForraB, 22.) In the High Court of .Justice. Division. Between Plaintiff, and Defendant. Take notice, that the writ of issued in this action directed to the sheriff of and bearing date the day ol 18 , has been renewed for one year from the day of 18 . (Signed) Solicitor for the To the Sheriff of APPENDIX (C). AFFIDAVITS. No. 3^, Affidavit of Service of S'jmmons. (See R. Sup. C, April, Form B, 24.) In the High Court of Justice. Division. Between PlaintiflF, and Defendant. 1, of Solicitor for the above named make oath and say as follows : — I did on the day of 18, before the hour of in the noon, serve the above-named in this action with a true copy of the summons hereto annexed, marked A, by leaving it at the of the said situate, &c. , with there Sworn at this day of 18 . Before me, &c. This affidavit is tiled on behalf of the liJi ■ t, ( .If: en affidavit filed. No. 33. FORMS — AFFIDAVITS. Affidavit by Landlord. [Not in English Schedule.] In the High Court. Division. Plaintiff, and Defendant. make oath and say as Between A. B., C. D., I. of follows : — I am in possession of the land sought to be recovered in this action by myself (or by the said C. D., my tenant, (as the case may be). Sworn at this day of Before me, &c. 631 M No. 34. Affidavit as to Documents. (See lb., Form 9.) In the High Court of Justice. Division. Between A. B., Plaintiff, and C. D., Defendant. I, the above-named defendant C. D., make oath and say as follows : — 1. I have in my possession or power the documents relating to the matters iu question in this action set forth in the first and second parts of the fir..t schedule hereto. 2. I object to produce the said documents set forth in the second part of the said first schedule hereto. 3. That {here state lohat grounds the objection is made, and verify the facts as far as may be]. ■1. I have had, but have not now, in ray possession or power the documents relating to the matters in question in this suit set forth in the second schedule hereto. 5. The last-mentioned documents were last in my possession or power on [state 2vhen] 6. That [here state what has become of the la,st- mentioned documents, and in whose possession they noxo are\. 7. According to the best of my knowledge, information, and belief, 1 have not now, and never had in ray possession, custody or power, or in the possession, custody, or power of my solicitors or agents, solicitor or agent, or in the possession, custody, or power of any other persons or person on my behalf, any deed, account, book of account, voucher, receipt, letter, memorandum, paper, or writing, or any copy of or extract from jvny such document, or any other docunieut whatsoever, relating to tlie matters in question in this action or any of them, or wherein any entry h.as been made relative to such matters, or any of them other than and except the docu- ments set forth in the said first and second schedules hereto, and the pleadings and other proceedings in the action. .Til mA\ i! im 632 ONTAKIO TUnCATURK ACT, 1881. No. 35. Affidavit on Production when made by an Officer of a ('orporatton. [Not in English Schtilule.] In the High Court. Division. Between A. B., Plaintiff, and C. />., Defendant. I, of , make oath and say as follows : — 1. I am the (herp state th^ name of the office held hi/ the deponent in the service of the (Jompnny on whose behalf he makes the ajjidarit), and as such, have knowledge of all documents which aio, or have been, in the custody or possession of the said (Conipanj ), relating to the matters in question in this action 2. I am cognizant of the matters in question in this action. .S. 1 he said defendants have in their possession or power, the documents relating to the matters in question in tliis action, set forth in the first and second parts of the' Hrst schedule liereto. 4. The said defendants object to produce the said tlocuments set forth in the second part of the said lirst schedule hereto. 5. That (here state on what grounds the objection is made, and verify the facts as far as may he). 6. The said defendants have had, but have not now, in their possession or power, the documents relating to the matters in (pies- tion in this action, set forth in the second schedule hereto. 7. The last mentioned documents were last in the possession or power of the said defendants on [state when). 8. That {here state what has become 0/ the last mentioned documents, ami in whose possession they now are). 9. According to the best of my knowledge, information, and belief, the said defendants have not now, and never had, in their ■ possession, custody, or power, or in the possession, custody, or power of myself, or of any of its solicitors or agents, or of any person or persons whomsoever, on its behalf any (proceed as i)i last form). No. 36. Affidavit in Sipport of Garnishee Order. (See lb In the High Court of Justice. • Division. Between Form B. 26.) Judgment Creditor, and Judgment Debtor. I, of the above-named judgment creditor [or solicitor for the above-named judgment creditor] make oath and say as follows : — 1. By a judgment of the Court given in this action, and dated the day of 18 , it was adjudged that I [or the above- named judgment creditor] should recover against the above-named judgment debtor the sum of $ , and costs to be taxed, and the said costs were by a taxing ofHcer's certiticate dated the day of 18 , allowed at $ V Officer of a FOHMS — PLEADINGS. 2, The said still remains unsatisfied to the extent of ami interest amounting to .? 3, {Xnine, address and description of garnishee) is indebted to the judgment debtor in the sum of $ or therealumts. 4, The said (insert name of ijarnishee) is within the jurisdiction o' this Court. Sworn at the day of 18 . Before me This affidavit is tiled on behalf of the 633 i-f;| ioned documents, No. X\ll, Affidavit on Interpleader. (^ee lb., Form B, 27.) In the High Court of Justice. Division. lietween Pl.tintiff, and Defendant. I of the defendant in the above action, make oath and say as follows : — 1. The writ of summons herein was issued on the day of 18 , and was served on nie on the day of 18 . I have not yet delivered a statement of defence herein. 2. 'I'he action is brought to recover . The said (is or are) in my possession, but I claim no interest therein. 3. The right to the said subject-matter of this action has been and is claimed (if claim in wri ting make the writing an exhibit) by one who (state e.c/)ectation of suit or that he has already sued). 4. 1 do not in ai.y manner collude with the said or witli the above-nfimed plaint-fi', but I am ready to bring into Court or to pay or dispose of the said in such manner as the Court may order or direct. Sworn at the day of 18 . Before me This affidavit is filed on behalf of the (I^)- No. 38. APPENDIX PLEADINGS. {See R. Sup. C, Appx. (C) Form 1.) Acoount stated. In the High Court of Justice. Division. Writ issued 3rd September, 18 . A.B., I'laintiflF, and E. F., Defendant. Statement of Claim. 1. Between the 1st of January and the 28th of February, 1879, Claim. the plaintiflF supplied to the defendant various articles of drapery ; and payments on account were from time to time made by the de- fendant. ':!;,■ 1:1 *;!!• m ' ' ■■■" 1 V- ! i-i "ti Mi- \m llli ' 634 ONTAKIO JUniCATUKE ACT, 1881. 2. On the 28th of February, 1879, a balance remained due to the plaintifif of i^',i'2o, and an account was on that day sent by the plaiutilf to the defendant showing that balance. 3. Un the 1st of March following, defendant paid the plaintiff by cheque $',i2 on account of the same. Tlie residue of the said balance, amounting to $29.S, has never been paid. The plaintiff claims $ The plaintiff proposes that this action should be tried at Whitby. Delivered the day of 18 , by X. Y., oi Plaiiitiff's Solicitor. No. 3». (See lb. Form 2. ) Administra- In the High Court of Justice. tionofan n;„;„; IntcsUte's Division. Estate. Writ issued 22ud December, 18 in the matter of the estate of A. B. deceased. Between E. F., Plaintiff, and G. H., Defendant. Claim. Statement ok Claim. 1. ^. ^., of A"., in the County of L., died on the 1st .July, 1880, intestate. The defendant, O. H., is the administrator of ^ . if. 2. A. B. died entitled to lands in the said county for an estate of fee simple, and also to some other real estate and to personal estate. The defendant has entered into possession of the real estate oi A. B., and received the rents thereof. .3. A, B. was never married ; he had one brother only, who pre- deceased him without having been married, and two sisters only, both of wliom also pre-deceased him, namely M. N., and P. Q. The plaintiff is the only child of M. N. , and the defendant is the only child of P. (j. The plaintiff" claims — 1. To have the real and personal estate of A. B. administered in this Court, and for that purpose to have all proper directions given and accounts taken. 2. To have a receiver appointed of the rents of his real estate. 3. Such further or other relief as the nature of the case may require. The plaintiff proposes that this action should be tried at London. Delivered the day of 18 by X. Y., of Plaintiff's Solicitor. No. 40. In the High Court of Justice. Division. In the matter of the estate of A, B., deceased. Between E. F. Plaintiff, and Cr'. //., Defendant. I"! P Defence. 1. The never married Statement of Defence. plaintiff is an illegitimate child of M. N. The defendant admits the other She was allegations FORMS — PLEADINGS. contained in the 1st and 3rd paragraphs of the plaintiff's statement of claim. 2. The intestate was not entitled to any real estate at his death. ,3. The personal estate of A. B., was not sufficient for the pay- ment of his debts, and has all been applied in payment of his funeral and testamentary expenses, and part of his debts. Delivered the day of IS by X. Y., of Defendant's Solicitor. 635 liiij No. 41. (See lb., Form 3.) In the High CJourt of Justice. Division. Writ issued 22ud December, 18 . In the matter of the estate oi A. B. deceased. Between E. F., Plaintiff, and G. H., Defendant. Statement of Claim. Administra- tion (if a Testator's Estate. 1. .4. B., oi K., m the county ol L., duly made his last will. Claim, dated the 1st day of March, 1873, whereby he appointed the ilefend- ant and M. N. (who died in the testator's lifetime), executors thereof, and devised and bequeathed his real and personal estate to and to the use of his executors in trust, to pay the rents and income thereof to the plaintiff' for bis life ; and after his decease, and in default of his having a son who should attain 21, or a daughter who should attain that age, or marry, upon trust as to his real estate for the person who would be the testator's heir-at-law, and as to his personal estate for the persons who would be the testator's next of kin if he had died intestate at the time of the death of the plaintiff, and such failure of his issue as aforesaid. 2. The testator died on the 1st day of July, 1880, and his will was i)roved by the defendant, on the 4th of October, 1880. The plaintiff ha s not been married. 3. The testator was at his death entitled to real and personal estate ; the defendant entered into the receipt of the rents of the real estate and got in the personal estate ; he has sold some part of the estate. The plaintiff' claims — 1 . To have the real and persontal estate of A. B. administered in this Court, and for that purpose to have all proper directions given and accounts taken. 2. Such further or other relief as the nature of the case may require. The plaintiff proposes that this action should be tried at Napanee. Delivered the ef(»re the expiration of the said '.i months for whicii credit had been given, the estate of tlie said (f. /f. was pl.iced in litpiidation under the Insolvency Acta then in force ; and the plaintitl's have never received the said sum of $ or any part thereof. The plaintiffs claim : 1. Damages to the amount of .■? 2 Such furtliur or other relief as the nature of the case may re(iuire. The plaintiffs propose that this action should he tried at Hamilton. Delivered the day of 18 , by X. Y., of Plaintiff's Solicitor. No. 44. [Title as in claim, omitting date of is.sue of writ.] Statkmext or Dkfence. 1. The defendants deny that the said commission of pcr Defence cent, mentioned in the ])aragraph 4 of the claim is the rate of com- mission ordinarily charged l)y (/'/ credere agents in the said trade, and say that the same is the cndinary commission tor agents other than d(d credere agents, and they deny that tlfy ever accounted to the plaintiffs for the price of any goods, except after tiiey had received the same from the purchasers. 2. The defendants deny that they were ever liable to the plaintiffs as del credere agents. 3. With respect to the 8th paragraph of the plaintiffs statement of claim, the defendants say that at the time of tiie said sale to tlie said (r. //., the said G. If was a person in good credit. If the truth is that the said O. If. was then in insolvent circumstances, the defendants did not suspect and had not reason to suspect the same, and could not by ordinary care or diligence have ascertained the fact. i. The defendants admit tho allegations contained in paragraphs 1, 2, 3, 6, 7 and 9 of the plaintitl's' statement of claim. Delivered the day of 18 , by X. F., of Defendant's Solicitor. h '. ! l-i. 111"! ^ i ! 1 ■m nm . \'< . lis 638 ONTARIO JUDICATITHK ACT, 1881, Bill of Exchange. ■Claim. No. 45. (■'?"■ !'>■< Fo'-ni 0.) In the lliijh Ooiirt of Justice. Diviaioii. Writ isisiipd '2.3r(l Aniru.st, 18 Botwfi'ii A. B Mild V. h., I'Inintiffs, and K. F. and a. II., DeliMidants. Staticmknt ok Glai.m. 1 . Mcssrft. M. N (t Co , on tiie diiy of drew a bill of t'xciiantjti iipitii tlie defendants for * , pnynble to tlie order of tiie said .Me-srs. .\f. A' ili Co.. 3 montiis after dale, and tiio defendants accepted the same. 2. Messrs. J/. ..V, cfc ''n. emiorsed the bill to the plaintiirs. [3. (Intt'oilut'cd hi/ anieinlmmt tit turpi the (Ifftjuce iti the (htfeudiint'n atateinetit of deftuce infra ) 'I'lie plaiulitf j;'rtve value and c-nsidera- tion for the said bid in inaiiner follnwiiij^, that is to say ; on the day 18 , the said Messr.s. J/. ^V cC" Co, were indebted to the plain. ..fF in about $ the balance of an account for poods sold from t mo to time by him to them. On that day they ordered of the plaintiff further floods to the value of about $ which us mentioned jj^oods have since iieeii delivered by him to them And at the time (;f order for such last mentioned j^oocls it was ajjreed between Messrs .][. N. d: Co. and the pbuntiff, and the order waa received upon the terms, that they should indorse and hand over to him the bill of exchtni^e sued upon, tosjfctlier with various other .securities on account of the said previr)iis balance, and the price of the i^oods so ordered on that day Tlu; said seinirities, includinlaintiff gave value and consideration for the said bill in manner following, that is to say, on the day of IS , the said Messrs. M. N. A Co. were indebted to the plaintiff in about $ the balance of an nccount for goods sold from time to time by him to them. On that day they ordered of the plaintiff further goods to the value of about .S which last mentioned goods have since lieen delivered Ijy him to them. At the time of the order for such last mentioned goods it was agreed between Messrs. J\f. N. <£• Co. and the plaintifi', and the order was received upon the terms, that they should iiulorse and hand over to him the bill of exchange sued upon, together with various other securities on account of the said previous balance, and the price of the goods so ordered on that day. The said securities including the bill sued upon, were thereupon on the same day indorsed and banded over to the plaintiff. Delivered the day of 18 by A'. Y., of Plaintiff's Solicitor. 639 Vr : ! : |li;'-M'! Promissory Note. No. 48. {See lb., Form 22). In the High Court of Justice. Division. Writ issued 3rd November, 18 . Between A. B., Plaintiff, and E. F., Defendant. Statement of Claim. 1 . The defendant on the day of made claim, his promissory note, whereby he promised to pay to the plaintiff' or hia order $ three mouths after date. 640 ONTARIO JUDICATURE ACT, ISSl. 2. 'I'he note became due on the day of 3 , and the defendant has lu-i, ^.aJd it. The plaintiff claims : — The amount of the note and interest thereon to judgment The plaintiff proposes that this action should be tried at Peter. borough. Delivered the day of 18 , by A'. Y., of Plaintiff 's Solicitor. No. 4iK [Title], Statemrnt of Defe.vck. {See lb., Form '2-2 [2] ). Defence. 1. The defendant made the note sued upon under the followinir circumstances : — The plaintiff and defendant had for some years been in partnership as coal merchants, and it had been agreed between them that they should dissolve partnershij), that the plaintiff should retire from the business, that tlie defendant should take over the whole of tne paituership assets and liabilities, and should pay the plaintiff the value of his share in the assets after deducting the liabilities. 2. The plaintiff thereupon undertook to examine the partnership books, and inquire into the state of the partnership assets and lia- bilities ; and he did accordingly examine the books, and make the said in(iuiries, and he thereupon represented to the ilefendant that the assets of the hrm exceeded .$10,000, and that the liabilities of the iirm were under $,3,000, whereas the fact was that the assets of the Iirm were less than ^5,000, and the liabilities ot the firm largely exceeded the assets. 3. The misrejtrescntations mentioned in the last; paragraph in- duced the defendant to make the note now sued on, iind there never was any other consideration for the making of the note. Delivered the day of 18 , by X. Y., of Defendant's Solicitor. Action on Bill of Exebauge. Claim. No. 50. Statement of Claim. [See II)., FormG [1]). In the High Court of Justice. Division. Writ issued l-.t February, 18 . Between A. B., Plaintiff, and C. B., Defendant. 1. The plaintiff on the day of 18 , drew a bill of exchange upon the defendant for $ payable three months after date, und the defendant accepted the same. 2. The bill l)ecame due on day of 188 , and the defemlant has not paid it. ,3. [{Amendment to meet defence infra.) The defendant, who at the time of the acceptance of tlie said bill was an infant withia '3 , and ulgment 3 tried at Peter. , by A'. Y., of FORMS PLEADINGS. 641 the age of 21 years, ratified and confirmed ]the said acceptance after he attained full age and before action, by a writing made and signed by iiim]- The plaintiff claims; — (Stafe claim). The plaintiff proposes that this action should be tried at Picton. Delivered the day of 18 , by X. Y., of Plaintiff's Solicitor. [Note the English form does not contain the third paragraph]. ! I ler the following for some years lad been agreed rshii-i, that tlie lefendant should [ liabilities, and the assets after the partnership p assets and lia- s, and make the defendant that the liabilities of Kit the assets of the firm largely i; paragraph in- md there never lote. 18 , by X. Y., 18 , payable the same. 188 , :!iiilant, who at 1 iufant withia No. 51 • Statement of Defence. [Title]. At the time of making the alleged acceptance of the said bill the defendant was an infant within the age of 21 years. Delivered the day of 18 , by X. Y. of Defendant's Solicitor. No. 5«. [Title]. (Reply where plaintiff" (f'^e-i not introduce into his statement of claim the allegations necessary by way of reply to the defence). RUPLY. The defendant C. D., who at the time of the acceptance of the said bill was iin infant witiiin the age of 21 years, ratified and confirmed the said acceptance after he had attained full age and before action, by a writing made and signed by him. Delivered the day of 18 , by X. Y. of Plaintiff's Solicitor. Bill of Ex- change and cnnsidura- tiun. No. 5». {See lb.. Form 7). n the High Court of Justice. Division. Writ issued 3rd October, IS . Between ^-1. B. and C. D.. Plaintiffs, and K F. and G. H., Defendants. State.me.nt ok Cl.\im. 1. The plaintiffs are merchants, factors, and com- mission agents, carrying on business in Toronto. Claim 2. The defendants are merchants and commission agents, carrying on business at Montreal. 3. For several years prior to the 18 , the plaintiffs have been in the habit of consigning goods to the defendants for sale, as their agents, and tlie defendants had been in the habit of consigning goods to the plaintiffs for sale, as their agents ; and each party always received the price of the goods sold by him for the other; and a balance was from time to time struck between the parties, and paid. 41 kS\ 642 ONTARIO JUDICATURE ACT, 1881. I I: On the of , the moneys so received by the defendants for the plaintiffs, and remainin!^ in their names, hirjTely exceeded the moneys received by tiie phiintiffs for the (lefemiiints, and a balance of $ was accordiuyly due to the plaintiffs from the defendants. 4. On or about the ,18 , the plaintiffs sent to tiie defendants a statement of the accounts between them, sliewin^- the said sum as the balance due to the plaintiffs from the defeiidants ; and the defendants agreed to the said statement of accounts as correct, and to the said sum of .Ji as the balance due by them to the plaintiffs, and agreed to pay interest on such baUince if time were given to them. 5 The defendants requested the plaintiffs to give them three months' time for payment of tiie said sum of $ , and the plaintiffs agreed to do so upon the defendants accepting tiie bills of exchange hereinafter mentioned. 6 . The plaintiffs thereupon on the drew two bills of exchange upon the defendMuts. one for $ , and the otlier for $ , both payable to the order of tlie plaintiffs three nionllis after date, and the defendants accepted the bills. The said bills became due on the 18 , and the defendants have not paid the bills, or either of them, nor the said sum of ^i The plaintiffs claim : — $ and interest to the date of judgment. The plaintiffs propose that this action should be tried in Toronto. Delivered the day of 18 , by A', r., of PUintiti's Solicitor. {See lb., Form 13.) False Im- No. 54. pridoniueut. In the High Court of Justice. r^ivision. Writ issued 3rd September, 18 Between A. B. Plaintiff, an^l E. F., Defendant. StATEMEKT of CL.nlM. Claim. 1 • 1"''^ plaintiff is a journeyman painter. The defendant is a builder having his building yard, and carrying on business at Ottawa, and for six months before and up to the 2'2nd August, 18 , the plaintiff was in the defendant's employment as a journeyman painter. 2. On the said 22nd August, 18 , the plaintiff came to work aa usual in the defendant's yard, at about 6 o'clock in the morning. 3. A few minutes after the plaintiff had so come to work the defendant's foreman. A'. Y., who was then in the yard, called the plaintiff to him, and accused the plaintiff of having on the previous day stolen a quantity of paint, the property of the defendant, from the yard The plaintiflf denied the charge, but X. Y. gave the plaintiff into the custody of a constable, whom he had previously aent for, upon a charge of stealing paint. FORMS — PLEADINGS. 4. The defoiiilaut was present at the time when the phvintiff Mas given into custudy, and authorized and asseiiteil to his being given into custody ; and in any case A'. Y., in giving him into custody, was acting within the sco^jo and in the couise of his cniiilnyniint as the defendant's foreman, and for the purposes of the ileftnd- ant's business. 5. The plaintiff upon being so given into custody, was taken by the said constable a consiilerable distance tlirough various streets, on foot, to the police station, and i;c was there di-'tained in a cell till late in the same afternoon, when he was taken to the police court, and the chaige against him was heard before the magistrate then sitting there, and \\as dis- missed. (). In consequence of being so given into custody, the plaintilT suffered annoyance and disgrace, and loss of time and wagi s, and loss of credit and reputation, and was thereliy unable to obtain any employment or earn any wages for three months. ^ The plaintiff claims $ damages. The plaintiff proposes that this action should be tried at Ot- tawa. Delivered the day of 18 , by A'. F., of Plaintiff's tSolicitor. 643 I A\ i '■■[■ No. 55. [Title.] Stateiient of Defence. 1. The defendant denies that lie was present at the time when Dufcnce the plaintiff was given into custody, or that he in any way autborized or assented to his being given into custody. And the said X. Y., in giving the plaintiff into custody, did not act within tlie scope or in the course of his emjdoyment as the defendant's foreman, or for the purposes of the defendant's busi- ness. 2. At some time about five or six o'clock on the , being the evening before the plaintiff was given into custody, a large quantity of paint had been feloniously stolen by some person or per- sons from a shed upon the defendant's yard and premises. ;i At about O.30 o'clock on the evening of tbe the plaintiff, who had left off work about half an hour previously, was seen coming ovit of the shed when no one else was in it, although his work lay in a distant part of the yard from, and he liad no business in or near the shed. He was then seen to go to the back of a stack of timber in another part of the yard. Shortly afterwards the paint was found to have been stolen, and it was foumi concealed at the back of the stack of timber behind which the plaintiff had been seen to go. 4. On the following morning, before the plaintiff was given into custody, he was asked by A'. Y. what he had been in the shed and behind the stack of timlier for, and lie denied having been in eitlier place. X. Y. had reasonable and probable cause for suspecting, and did suspect that the plaintiff was the person who had stolen the paint, and thereupon gave him into custody. Delivered the day of 18 , by A', }'., of Defendant's Solicitoi. ■i ;l M;U 11 ■\\ i t .:.:},. \ : i \ l.f ■ 1 ■ i ?ii* •J:iti 644 Fraud. aaini. Defen ;e. ONTARIO JUDICATURE ACT, li^Bl. No. 56. (See yi., Form 15.) In the High Court of Justice. Division. Writ issued 3rcl September, IS . Between ^1. B., I'hiintiff, and E. K, Defendant. Statement ok Claim. 1. In or about March, 1880, the defendant caused to be inserted in the Newspaper an advertisement, in which he ottered for sale the lease, fixtures, fittings, goodwill, and stock-in-trade of a baiter's shop and business, and described the same us an increasing business, and doing twelve barrels a week. The advertisement directed application for particulars to be made to A'. Y. 2. The plaintiff^ having seen the advertisement applied to X 3'., who placed iiim in communication with the defendant, and negotia- tions ensued between the plaintitt' and the defendant for the side to the plaintiff' of the defendant's bakery at with the lease, fixtures, fittings, stock-in-trade, and good-will. 8. In the course of these negotiations the defendant repeatedly stated to tlie piainiifF that the business was u stt-adilj' increasing business, and that it was a business of more than twelve barrels a week. 4. On tlie 5th of April, 1880, the plaintitt", believing the said state- ments of the defendant to be true, agreed to purchase the said pre- mises from the defendant for ij'i.uuo, and paid to him a deposit of |3Ui) in respect of the purchase. 5. Un tiie 15th of April the purchase was completed, an assign- ment of the lease executed, and tlie balance of the purchase money paid. On tlie same da}' tlie plaintiff entered into possession. 6. The plaintitt' soon afterwards discovered that at the time of th& negotiations for the said purchase b\' him and of the said agreement, and of the com[)leti()n tliereof, the said business was and iiad long been a declining business ; and at each of those times, and for a long time before, it had never been a business of more than four barrels a week And the said premises were not of the value of $2,UUti, or an\ saleable value whatever. 7. The defendant made the false representations hereinbefore men- tioned, well knowing them to be false and fraudulently, with the intention of inducing the plaintiff to make the said purchase on the faith of the n. The plaintiff claims ji damages. The plaintiff proposes that the action should be tried at Brockville. Delivered the day of IS , by X. Y., of Plaintiff's Solicitor. No. 51. [Title]. Statement of Defence, {See lb., Form 16 [2] .) 1. The defendant says that at the time when' he 'made the representations mentioned in the 8rd paragraph, of the, statement FORMS — PLEADINGS. rtf claim and throughout the wliole of the transactions between the plaintitT an 1 ilefemlant, ami ilowii t) tlio complution of the purchase and the relinquishment hy the defendant of the said shop and busi- ness to the plaintiff, the said business was an increasing busi- ness, and was a business of over twelve barrels a week. .\nd the defendant denies the allegations of the Gth paragrapli of the state- ment of claim. 2. The defendant repeatedly during the negotiations told the plaintiff that lie must not act upon any statement or representation of his, but must ascert:iin for himself the extent and value of the saiil business. .\nd the defendant handed to the plaintiff for this purpose the whole of his books, showing fully and trutlifully all the details of the said business, and from whicli the nature, extent, and value thereof could be fully seen, and those l)ooks W(!re examined for that purpos^e by the plaintilf, and by an accountant on his behalf. And the plaintiff made the purchase in reliance upon his own judgment, and the result of his own imjuiries and investigations, and not upon any statement or representation whatever of the defcnilant. ,3. The defendant admits the allegations of paragraphs one, two, three and four of the statement of claim. Delivered the day of IS, by X . Y. of Defendant's Solicitor. 645 No. 58. {S''" Ih., Form IG.) Guarantee. In the High Court of Justice. Division. Writ issued 3rd Septeml>er, 18S1. Between A. B. and C. D., Plaintiffs, and E. F. and G. If., Defendants. St.\.tement of Claim. 1. The plaintiff's are brewers, carrying on their business at (iuelph, under the lirm of X. Y. '.., Defendant. Statement of Claim. Qjj^juj 1. The plaintiff is a shoemaker, carrying on business at Toronto. The defendant is a soap and candle manufacturer at the same place. 2. On the 23rd May, 1881, the plaintiff was walking eastward along the south side of King Street, in the City of Toronto, at about three o'clock in the afternoon. He was obliged to cross Yonge Street, which is a street running into King Street at right angles thereto. While he was crossing this street, and just before he could leaoh the foot pavement on the further siile thereof, a two horse van of tiie defenilant's under the charge and control of tlie defendant's servants, was negligently, suddenly, and without any warning, tui'ned at a rapid and dangerous pace out of King Street into Yonge Street. The pole of the van struck the plain- tiff and knocked him down, and he was much trampled by the horses. 3. By the blow and fall and trampling the plaintiff 's left arm was broken, and he was bruised and injured on the side and back, as well as internally, and in consequence thereof the plaintiff was for four months ill and suffering, and unable to attend to his business, and incurred heavy medical and other expenses, and sustained great loss of business and j^rolits. The plaintiff claims $ damages. The plaintiff proposes that this action should be tried at Lind- say. Delivered the day of ' 18 , by A'. Y,, qi Plaintiff's Solicitor. No. 60. FORMS — PLEADINGS. [Title.] Statement of Defence. 647 1. The defendant donies thnt the van was the defendant's van, Defence, or that it was under the cliar^e or control of the defendant's servant. The van belonged to John Smith, of a carman and con- tractor employed by the defendant to carry and deliver goods for him ; and the persons under whose charge and control the said van was were the servants of the said John Smith. 2, The defendant denies that the van was turned out of King Street eithir negligently, suddenly, or without warning, or at a rapid or dangerous pace. ,S. The defendant says, that the plaintiff might and could, by the exercise of reasonable care and diligence, have seen the van approach- ing him, and avoided any collision with it. Delivered the day of 18 , by X. Y., of Defendant's Solicitor. ^l!l (iii* ii'k I ■h; ir; (. No. 01. Statement of Claim. Action for Assault In the High Court of Justice. Division, Writ issued 15th March, 18 Between A. B., Plaintiff, and E. R, Defendant. 1. The plaintiff is a carrying on business at 2. On the day of the defendant assaulted the the plaintiff, and the plaintiff was seriously hurt and wounded, and was for a long time in consequence of his injuries, unable to transact his business, and incurred expense for nursing and medical attendance, [(3. Amendment to meet defence infi'a.) The defendant pretends that he committed the assault complained of in his own defence; but the facts are that the defendant was trespassing on the plaintiff's land, and refused to leave though requested to do so, whereupon the plaintiff laid his hands on the defendant in order to remove him, using so much force and no more than was necessary for that purpose.] The plaintiff claims $ damages. The plaintiff proposes that tins action should be tried at Cobourg. Delivered the day of 18 , by X. Y., of Plaintiff's Solicitor. No. 03. [Title.] Statement of Defence. The plaintiff first assaulted the defendant who, thereupon, commit- ted the alleged assault in his own defence. Delivered the X. Y., of day of Defendant's Solicitor« 18 ,by =1-'. -If m VI ; ! ''ill '■i lb' ^ ill} 648 ONTARIO JUDICATUKK ACT, 1881. No. O, [Titlf.]. ( Ripbj where plalntiffili)<'.i nut intrnduce Into //i.y nt(itiiiii), he, the plaintiff, would accept such sum from the defendants in full satisfoctioii and disch.iriie of all cause of action wliieli he hail or might have against the >aid defendants on account of the said collision. 3. Thereupon the said officer acting on behalf of the defendants, paid to the plaintiff the sum of §MOi), and the plaintiff received the 8ar..e in full discharge of the aforesaid cause of action. Delivered the dav of 18 by A'. y„ of Defendants' Solicitor. 'J • f Ml No. «<;. [Title.] (Replji xohere the Plahififf ihxx not inti'O'luce into his statement of claim the alfejalions necess'iri/ bif wiy of rrph/ to the Defence ) Reply. 1. The defendants allege that the plaintiff accepted tho sum of 4301) in full satisfiiction of all cause of action which he might have •on account of the said collision, but the facts are as follows : 2. A short time after tho collision an officer of the defendants procured the plaintiff to accept the said accord and satisfaction by fraudulently representing that his injuries were of a temporary nature, and that if they should afterwards turn out to be more serious than he anticipated, he would still be able to obtain further compensutioa from the defendants, 3. The plaintiff fully believing the said representations, and acting upon the faith thereof, was induced thereby to accept the said accord and satisfaction, and then accepted the same subject „: ; iiii 060 ONTAIIIO Jl'DlCATCRR ACT, 1881, to the express condition tliat he should not there}>y cxelude hinisplf from further ^onijiensation from the defendants if liis injuries should prove more serious than he then anticipated. 4. After the acceiitanee of the said accord and satisfaction, the injuries suffered by the plaintiff in the <'(.Ilision did turn out to he more serious than was anticii>atod at the ;.nie aforesaid, and there- upon the plaintiff commenced the present action. Delivered the day of 18 X. v., of riaintitl's Solicitor. y Landlord No. 07. and Tenant. In the High Court of Justice. Division. (See Ih., Form 18.) m Writ issued 3rd September, 1881. Between A. B., Plaintiff, and C. 1)., Defendant. Statemknt of Claim. Claim, 1 • On the '4'2(>, payiible quarterly, tlie tcimney to ooinmence on the day of '1. The defendant, took jios.session of the house and continued tenant t.liereof until the day of last, when the tenancy 'letertnined by n notice duly piven. '.\. Th, defendant has'^^disregnrded the notice and still retains pos- session of the house. 4. [Amciulment to nirel (he cnuntcrrJnim htfrn.^ (The defendant CD sets up in his defence that the |)laintitt' agreed to fjjive to the (icfendiint a new lease, and the plaiiitill' A. li. admits the ajifreeiiient alieijed in the statement of defence, hut he refuses to praiit to t.ie (ieCendant a lease, inasmuch as such afireement provided that the lease should contain a covenant l)y the defendant to keeji the house in uood repair and a power of re-enti\v by the ])laintifF upon breach of si"'li covenant, and the jilaintifT says that the defendant, since the ai,'reenient was made, has not kept the house in good repair, and the same is now in a dilapidated condition.) The plaintift'claims— 1. Possession of the house. 2. * for mesne i)rofit from the The plaintifT ])roposes thiit this nclion Delivered the day of of Plaintiff's Solicitor. 651 Rerovery of land. Landlord and Tenant. day of should be tried . 18 at Ottawa, by X. Y. No. «J>. Rtatkment ok Dekknce and Counter-cl.mm. In the High Court of Justice. Division. Between A. B., Plaintiff, and C. D., Defendant, (by original action,) And between V. D., Plaintiff, ami A, B , Defendant. (By counter-claim.) The defence and counter-claim of the above named C D. 1. Before the determination of the tenancy mentioned in the state- Defence.. ment of claim, the plaintiff A. B., by writing dated the day of , and signed by liim. agreed to prant to the defendant C. D. a lease of the house mentioned in the ■lit i !, i' ) I I 1 I > ' i 1 i U lll-fl 652 ONTAIIIO JIJDICATirKK ACT, 1881. 'Counter- daiin. stiitcmont of claim, at tho yo.arly rent of .^l.'dl, for thu torm of 21 years, coinmonciug fntiii thu day of , wlii;n tlie (lufendant (K fy.i teiiaiu;y from year to y>' ir ili'ti-Tiniiiud, and the defendant has since that date l>een and «tiU i» in possession of the hoiiHo under tlie saitl ajjreemcnt. '2. By way of counter-claim tli • d (f:i!idint claims to have the agreement HpeeifuMlly [»jrform.;d and to ii ivc a lease granted to liim accordingly. Delivered the day of 18 , by X. )'., of Defendant's Solicitor. No. 70. ['I'itle. I (Repbj where plnUitif (lof-i not introi/itce intn hU statement of I'lnimlhi alleijiit'mnn aece.is(iri/ hy wni/ of n-phj to the. defence.) llKl'hV. Reply. Ti,e plaintiff, A. Ii., admits tlie aijireemont stated in tho dcfornlintp C. />. '.s statement of defence, Imt lu refiisos to grant to the di'foiul- ant a lease, because such a.jroement )>rovide I tiiat the lease should contain a 'Covenant by the defendant to keep the house in goml repair, and a power of re-entry l>y the pliiutiff \\\wn breach of such covenant, and the plaintiff snys that the defendant, since thr inakini' of the said agreement, has not kept the house in good repair, auil the same is now in a ' f''- J-'""'!. '.'7.) In till! His'i Court of Justice. . l)ivisioti. Writ i8.sueil !!rd October, 18 iiL'twecn A. /i , I'laiiititl, and Ji'. K, Uefciuliirit, St.\temext of Claim. Trespass to land. and slill is the owner in the the Till concession of 1. The plaintiff was on the .'ith March. IS and occupier of a turni in the I ownship of County of . bein;^ lot No. 4 in the said Township. 2. A private road known as lliy,litield Lane, runs throujLrh a portion of the plainlitr's farm It i>« bounded on both sides by tields of the pluintitl's and i- -iparated therefrom by ii fence and ditch. 3. For a long time prior to the oth of March, \H , the tlefendant had wronn^fullv claimed to use the said road for h's horses, carts and wnuuons, on the alleged {jround that the same was a public highway, and tlie plaintiff had fnquently warned him that the same was not a public highway, but the plaintiff- private road, and that the defeud- ttiit must not so use it. 4. Ou the 5tli March, 18 , ilie defendant came with a cart and horse, and h large number of servants ami workmen, and forcibly used the road, and broke down and removed agate which the [daintiffhad caused to be placed across the same. 5. The defendant and his servants and workmen on the same occasion ])Hlled down and damaged the ])laiiititf's fence and ditch upon each side of the road, and went upon the jilaintiff's field be- yond the fence and ditch, and injured the crops there growing, and dug up and injured the soil of the loaii ; and in any case the acts men- tioned in this paragraph were wholly unnecessary for the assertion of the defendant's alleged right to use, or the user of the said road as u highway. The plaihtiff claims :— 1. Damages for the wrongs complained of. 2. An order resti-aining the ilefendaiit from any repetition of any of the acta complained of. 8. Such further relief as the nature of the case may require. The plaintiff proposes that this action should be tried at Wood- itock. Claim. Delivered the day of of Plaintiff's Solicitor. 18 , by a: Y^ n \"v M ■» h1'':i!l 651 ONTARIO JUDICA.TUIIE ACT, 1881. No. 73. [Title.] Statemkn't ok Defence, 1. Tlie defendant says tliat the road was and is a public; hi^•ll\vay for horses and cari-ia.i;es ; and a few days bi'f ire (lie 5tli Mareli, Is tlie plain'.ifF wronuliilly erected tlie if ite across tlie road for the purpose of obstrnetiiiif and preventiiiip, and it did obsti'uot and pi'ti. vent the use of tiio road as a hi^'liw.iy. And the defcn lant on tlie said fitii Mareli, 18 , caused the said i^ite t > be removed, in order to enable him lawfully to use the road by his horses, car^s and wai^ >'.)us as a highway. 2. The defendant denies the alle;i;ations of the 5th paras^raph of tlie statement of claim, and sayn that neither he nor any of his woi'k- men or servants did any act, or used any violence, other than was necessary to enable the plaintitt" lawfully lo use the hiii;!iway. Delivered the day of 18 , by A'. Y., of Defendant's Solicitor. No. 74 FoKM OK DEMlliRKR. (R. Sup. C, 1875, Appx. [G], Form 28.) In the IJis^h Court of .Justice. Division. , ' P J. C. D. The defendant [plaintifFj i' luirs to the [plaintiffs statement of complaint or defendant's stat^ 'tit of defence, or set-off, or counter- claim] [or to so much of the plaintiff's statement of complaint as cldms "'• as allei;'es as a breach of ctmtract the matti'i's mentioned in para<^rapli seven, nr nn the <:iise may he\, and says that the same is bail in law on r,he ^jjrouii 1 that [^Iwre slate a ground of deniurrer] and on other ijrounds suUicient in law to sustain this demurrer. Delivered the day of 18 by ,Y. Y, of Plaintifi''3 Soliciior. APPENDIX (K). No. 75. Fli.EClPE.S. Amended Su.mmons. (See R. Sup. C, April, IsbO, Form E, 18.) [Title, tfec] Amend in pursuance of order [or Hat] dated the writ of .summons in this action by (net out ainendiiwntu when required). Dated the day of 18 , (Si;j;ned) , (Address) , Solicitor for the if c'Diitraot tlie FORMS PR.tX'IPES. No. TOt Renewed Summons. (^e Jb., Form E, 19, K. Sup. C, Appx. A, Pt. 1, Form 5.) [Title, &c.] Keqiiircd in ])ursuanoe of ortler tlateil , a renewed writ of summons in tliis action, Dated the day of 18 . (.Signed) (Address) Solicitor for the No. IT. Entry of ArPEAKANCE. (See R. Sup. C, April, ISSO, Form E, 21.) [Title, &c.] in this action day of 18 . Enter an ai)i)earance for Dated the (Signed) (Address) The said defendant require {or do not require, as the case may he) a statement of claim to be delivered. (fn ccme (lie ile/hidaiit tvislitu to liispiite the amount cJaimed, ami to make no other de/'ence, the fo/lairin;/ rnaij be added.) The defendant (lisjuites the amount claimed by the plaintiff, [or the defendant insists that the amount due to the plaintiff is .$ only, or the ., Form K, 16.) [Title, etc.] Required in pursnance of order dated examine witnesses directed to Dated the day (if (Si;;ned) (Address) Solicitor for the a commission ♦. , 18 . No. 91 IIabe.\8 Corpus ad Testificandum (ScfJh., Form E, 15.) [Title, Ac] Required in pursuance of order dated torpits ad tent'ficavdnm directed to the before Dated the day of 18 (Signed) (A(idress) ' Solicitor for the a writ of hnlxat to bring No. 9^1 Entry of Appeal. (-See Ifi., Form E, 27.) [Title, Ac] Enter this appeal from the order [or judgment] o this action, dated the day of 18 (Signed) (Addres.*) in No. 93. »*'""" F'^«A8- (See U Sup. C, 187.5, Appx (E), Form 1). [Title, Ac] Required a yrrit of fieri farins directed to the sheriff of to levy against V. D. the sum of # and intrrtst and intrr«8t FORMS — PRECIPES. thereon at the rate of $ per centum per annum from the day of [and $ costs] to Judgment [or order] dated day of Taxing master's certificate, dated day of Dated the day of (Signed) (Address) Solicitor for the [party ov whose behalf torit in to istiue]. 659 No. 04. Venditioni Exponas. (Sec lb., Form 3.) [Title, &c.] Required a writ of venditioni exponas directed to the sherifl' of to sell the goods and of C. D., taken under a writ of fieri facias in this action tested day of Dated the day of 18 . (Signed) (Address) Solicitor for the No. 05. Writ ov Sequestration. (See lb., Form 0.) [Title, &c.] Required a writ of secinestrati'm against C. D. for not at the suit of A. li. directed to the sherifl of Order dated day of Dated the day of 8 . (Signed) (Address) Solicitor for the No. 96. Writ OF Possession. (Lands.) (-S'ee //)., Form 7.) [Title, &c.] Required a writ of possession directed to the sheriff of to deliver possession to A. B. oi Judgment dated day of Dated the day of 18 . Signed) (Address) Solicitor for the fA ■ 1 i j t #' :. ■'■ |i' i \ •M i ' ii ( ' ijiiii 1 ' (.' , • m \ ■ i 1 m^ W^ti * 1 'i 1 ' '} ; rtiifc ; ■^«f| • I \ im « _u m m 6f0 ONTARIO JUDICATURE ACT, 1881. No. OT. Wbit ok Delivery. (Cuattkls.) {See lb., Form 8.) [Title, Ac] Requirerl a writ of delivery directed to the sherilt' of to miike delivery to A. B. of Dated the day of 18 (Signed) ( Address) Solicitor for the day of against C /). No. 08. Writ of Attachment. See lb.. Form 9.) [Title. «Src.] Required in pursuance of order dated an attachment directed to the sheriff of for not delivering to A. B. Dated the day of 18 . (Signed) (Address) Solicitor for the APPENDIX (F). SUBP(E:^AS, Ac, for EXAMINATIOX OF WITNESSES. {See K. Sup. C. April, 1880, Form G, 1.) No. 00. SUBPfEVA AD TkSTIFICANDUM. (GeXKRAL FoRM. ) In the High Oourt of Justice, ■ Division. Between Plaintiff, and defendant. Victoria, by the Grace of Gu to attend before at on day the day of I J) . at the hour of in tiie noon, and so from dny to day, until the above cause is tried, to give evidence on beha!f of the (plaintiff or defendant.) U itiiess, the Honourable President, Dl'cks Tecum. (General Form.) {See lb. Form G, 2) [Title, «tc.] Victoria, by the Grace of God of the United Kingdom of Great Britain and Ireland, Queen, Defender of the Faith, to greeting : We command you to attend before at on WITNESSES. FORMS — SUBPfENAS. day the day of 18 , at the hour of in the noon, and so from day to TKS'nFICANnUM AT AsSIZKS. {See Ih,, FormG. 3.) [Title, &c.] Victoria, by the Grace of God of the United Kingdom of Great Brit.ain and Ireland Queen, Defender of the Faith, to greeting : \V(; command you to attend before our Justices assigned to take Assizes in and for the County of to be holden at on day the dny of 18 , at the liour of in tlie noon, and so from race of (Jod of the United Kingdom of Great Britain and Ireland, Queen, Defender of the Faith, to of commissioner named l)y and on l)ehalf of the and to of a commissioner named by and on behalf of the greeting: Know ye that we in conlideuce of your prudence and fidelity have appointed you and by these presents give you power and authority to examine on interrngitoiies and rlva voce as hereinafter mentioned witnesses on behalf of the said anil respectively at before yon or either of you. — And we command you us follows : I. Both the said and the said shall lie at liberty to examine on interrogatories, and turn ran on r.he subject matter fl Ij rr 1' •: 1 'r 1 . m H ■ 1 i' ■if' I \ ■' t 1 •. 662 ONTAKfO JUDIOATITRK Af'T, lf<8l. thereof or arising nutoftlie answers tliereti), sucli witnenHes as slmll be prinliiced on their behalf, with liberty to the other partv to ernss- examine the said witnesses on cro^s interrof^atories, and viva, vmr on the subject matters thereof or aiii^intr out of the answers tliereto, the piirt.y prodiicinir Mny witness for examination beinu iit lii)ertv to reexamine him J'nve I'o/e ; and all siieh additional vivn vnre qi:c.s. tions, whether on exatninntion, cross-exaiiiinalion f th(\ party on whose belnilf the witness is to bo exainined, and ,statin, then the ejcandnation shall be taken in Kuglish. throuiih the medium of an interpreter or interpreters, to be nominated by the coiuMiissioiuTS or comnnssioner present at the examiniiti(tn, and to be previouifly sworn, according to his or thidr several religions, by or before the said commissioners or commissioner truly to interpret the questions to be put to the witness and his answers thereto. 6. The depositions to be taken under this commission shall be subscribed by the witness or witnesses, and by the commissioners nr commirisioiier who shall have taken the deposili( iis. 7. The interrogatories, cro.-s-interrogatories, and depositiotin, together with an}' documents referred to therein, or certified copies thereof or extracts therefrom, shall be sent to the FORMS — (COMMISSIONS. of the Supreme Court of Jiulioature on or ))ofore tin- clay of inclosed in a cover under the seals or seal of the oominia- sioners or commissioner. 8. Before you or any of you, in any manner act in the execution hereof, you shall severally take tiie oatli hereon imlorseil fin the .Holy Evangelists, or otherwise in such other manner as is sanctioned by the form of your several religions, ami is considered i)y you respectively to he binding on your respective consciences. And we give you or any one of you authority to administer suck oath to the other or others of yon. Witness, the Honourable President, &c., the day of in the year of Our Lord one thousand eight hundred anil of agent foi' who reside This writ was issued by of solicitor for the at Com/«ws/OHcr '•>•■ OutJi. You shall, according to the best of your skill and knowledge, truly and faithfully, and without partiality to any or either of the parties in this cause, take the examinations and depositions of all and every witness and witnesses produced and examined by virtue of the commissiou within written. So help you (iod. 663 '■0 * ''1 !•!'!■ il! ; I Clerk' t: Oath. You shall truly, faithfully, and M-ithout partiality to any or either of the parties in this cause, take, write down, transcribe, and engross all jvnd every the questsons which shall be exhibited or put to all and every witness and witnesses, and also tin; depositions of all and every such witness and witnesses jirodueed l)efore and examined by the said commissioners named in the commission within written, as far forth as you are ilirected and employed by the com- missioners to take, write down, tratiscril)c or engross the saiil ques- tions and depositions. So help you ( Jod. IVUticM's Oath. You are true answer to make to all such (juestions as sliall be asked you, without favour or afl'ection to either party, and therein you shall speak the truth, the whole truth, and nothing but the truth. So helj» you Ood. Jnfi'rj>reter',s Oath. You shall truly and faithfully, and without partiality to any or either of the parties in this cause, .and to the best of your ability, interpret and translate the oath or oaths, affirmation or atfirmationa which shall be administered to, and all and every the questions which shall be exhibited or ])ut to all and every witness and witnesses jiroduced before and examined by the commissioners named in the commission within w ritten, as far forth as you .are directed and employed by the said commissioners, to interpret and translate the same out of the I<]iiglish into the language of such witness or witnesses, and also in like manner to interpret and trans- late the respective depositions taken ami made to such questions out of the language of such witness or witnesses into the English language. So help you (lod. m !;; fl 664 ONTARIO JUDKJATUKE ACT, 1881. Dirpctinn of InterrDgfttories, Ac, wlu-n petiipned by the Com- miBsiuiiers. The of the Supreme Court of Juiiienture. Osgoixle llall, Toronto. No. 104. IlAnKAS CORITR AD TeSTIFICANUUM. (Sfelfi., Form G. t'2.) [Title, Certiorari to Corxry Court. {See R. Sup. C, April, 1880, Form G, 8.) [Title, ttc.J Victoria, by the Grace of God of the [Jnited T\ini;dora of Groat Britain and Ireland, Queen, Defender of the Faith, to the Judgu of the County Court of greetirii^ : We, wiilini; for certain causes to be certified of a certain cause pending in our Court liefore you against at the suit of command you tiiat you send to us foi-thwith in the Division of our High 'Onrt of .Justice at Toronto, the proceedings in the said cause with all things touching the same, as fully and entirely as the same remain in our sidd Court before you, by whatsoever naTiies the parties may be called therein, together with the writ, that we may further cause to be done thereupon what of right we shall see fit to be done. Witness, the Honourable day of This writ was issued by of solicitor for the President, Ac , the of agent for who reside at 'I . PORM8 — (JRRTIOHAKI, EXr. No. 106. rKHTioiJAki {Oftifral). (See Jh., Form (J, 9.) [Title, &c.] Victoria, l)y the (Jraoe of (IdiI of the IJiutcd King orm H. 1!)) In the High Court of Just Division. l.Viinie of the Judi/r or '^■i!tlfr]\n Chambers. Between IMnintiff. and Defendant. Upon hearing and upon readinijf the affidavit of the day of is , and ffl«i FORMS ORDERS. 067 It is ordered that service of a copy of this order, and of a copy of the writ of HummoiiH in this action, hy atndinfj the same by a pro- paid and registered powt letter, addreaaed tf) the defendant at . sliall he yood and sufficient service of the writ. Dated the day of 18 . No. 113. Ordeh Ai.LowiNd Rrrviok made oot ok thk JirRisntcrnoN. (See Ih., Form H, 18. and Order 7.] In the High Court of .Justice. Division. [Ndini' of ffie Jii(f 1 ' No. 113. Order loi: Hknewai, of Writ of Summoni*. {See Ik, Form H. 20.) In the High Court of Justice. Division. [Xame of Iha Jmii/f or Ma-sterl in Chambers. Between Plaintiff, and Defendant. Upon hearing and upon reading the affidavit of filed the day of 18 , and It is ordered that the writ in this action be renewdl for twelve months from the date of its renewal, pursuant to the i'ules of the Supreme Court, Order 5. Hule 1. Dated the day (,f 18 . ■ i M No. 114. Order for Time. (See lb., Form H, 3.) In the High Court of Justice. Division. [Na)»e of the Judije or Maxter] in Chambers. Between Plaintiff, and Defendant. Upon hearing , and upon reading the affidavit of filed the day of 18 , and It is ordered that the shall have time for, Ac, and that the costs of this ai)plieation be Dated the day of 18 . I'l .11. Ml, 668 ONTARIO JUDICATURE ACT, 1881. No. 115. Ordkr under Order X, No. 1 (Final Judgment). (See lb.. Form H, 4.) In the High Court of Justice. Division. [Name of the Judge or Master] in Chambers, lietween Plaintiff, and Defendant. Upon hearing , anil upon reading tiie affidavit of filed the day of IS , and It is ordered that the plaii^tiff may sign final jungnient in this action for the amount indorsed on the writ, with interest, if any, and costs to be taxed, and tliat the costs of this application be Dated the day of 18 , No 110. Order h.n-dek Op.dki (/eai-f to .) In the High Court of Justice. Division. \Navie of the Juilijr or Mai^tcr] in Chanibevs. Between I'laiiitifJ", an ;'ij : ^ h 'M 674 ONTARIO JUDICATURK ACT, 1881. No. 131. Order ok liEFERKNCE under Sfc. 48 of the Act. (See Il>., Form H, 32.) In the High Court of Justice. -Division. IXainc of (he Jwdje or Mn.Her\ in ( 'hambers. Between IMaintitf, and Doffiidant. Upon hearing . and upon reading the affidavit of filed die day of , 18 . It is ordered that the [tiiute vhethr ojl. nr ninne and, if no, which of the quedUms are to be tried] in this actiiai be tried by And it is orderei»ie8 thereof may be read and givea in evidence on tlie trial of this cause, saving all just exceptions, without any further proof of the absence of the gaid witness than the affidavit of the solicitor or aycnt of the as to his belief, and that the costs of this application be Dated the day of 18 . Upon hearing filud the day of No. 134- G\HSi»iiEK Order (Attachiug JJel)t.) {See Ih., FormH, 87.) In the }ligh Court of Justice. Division. [Name of Judove uaiuod judgment tlcbtor be attached to answer a judgment rcovereil against tlie said judgment debtor by tlie above-nained judgment creditor in tlie High Court of Justice on the day of IS , for tlie sum of ■■# , on which juilgment the said sum of .§ , remiins due and unjiaid. And it is furtlier ordered tliat the said gamishee attend tlie in Chamber.^ {or a.s' the case inaij he) on day the day of 18 , at o'clock in the iinon, on an ajiplication by the said juiignient creditor, that the said gaiiiishee pay the debt due from him tc» the said judgment delitor, ov ao much thereof as may be siifticieiit to satisfy tile juilgineiit. And th.at the costs of this a[)plication be Dated the day of IS . 675 ,!l 1 i 1 ii \ 1 ■ '. ■ ! 1 t linatiou is to No. 135- Garni.^hke Order Alixolute.) (Sec Ih., Form H, .'iS.) In the High Court of Justice. Division. [Name of the Jud'ji or Muster,] in Chambers. Between Judgment Creilitor, and Judgment Debtor, (iarnishee. Upon hearing , and upon reave-u imj 1 judg:ujnt delator should be attached to answer a judgment recovered against t!ie siid judgment debtor by the above-nained judgment ere litor in the High Court of Justice on the day of IS i for the sum of $ , on li' 1 1 I 1 : i! M m ^j^*^ I I C76 ONTARIO JUDICATURE ACT, 1881, which judgment the said sum of $ remained due and unpaid. It is orderod that the said garnishee do forthwith pay the said judgment creditor the debt due from liim to the said judgment debtor {or so much thereof as may be siitficient to sjitisfy the judg- ment debt), and tliat in tlefault thereof execution may issue for the same, and that the costs of this application be Dated the day of 18 . No. 13«. Oudi;k on Ai'PLic'ATiox to tax Solicitor's Bill ok Costs. (See II)., Forms H, 39-51.) In the High Court of Justice. Division. {Nami' of tfii' Jiuhje or Mniitiir] in Chambers. In the matter of Centleman, One of the Solicitors of the Sujneme Court. Upon application of it is ordereil that the bill of fees, charges and disbursements deliver- ed to the applicant by the above-named solicitor (or by the above solicitor to {an thf ra.sc may he) be referred to the to be taxed, and that the said do take an account of .ill sums of money received by the said solicitor of or on account of the applicant. And it is ordered that the costs of this application l)e Dated thf day of , 18 . No. |»T. Order to try Action in County Court. {See IIk, Form 11, 42 ; R. S. O. c. 49, s. 3.) In the High Court of .Justice. Division. [Xame of the Jiuhjc or MnAter'\ in Chambers. Between riaintifT. and Defendant. Upon hearing , and upon reading the affidavit of filed the day of , 18 , ami it is ordered that this action ))c tried before the County Court of , and th.at the co.sts of this application be Dated the day of , IS . No. I*(H. Order for Examination Touchinu Mean.s. {See Ih., Form H, 44 ; 11. S. 0. c. 50, s. 304.) In theJHigh ( 'ourt of .histiee. Division. Judge in Chambers. Judgment Creditor, and Judgment Debtor. , and upon reading the affidavit of day of , , 18 , and Between Upon hearing filed the L OK Costs. FOHMS — OKDKH8. it is ordered that the above-named .) In the Hiplioation be Dated til.' 4 • 1 i i 'I : i , i 1 Hi i 1 1 I ; [i i'l)) li ■i\ ■•■■ j 1 •, ! ' iiitiil (J78 ONTAKIO JliniCATrKK ACT. 1881. It is ordered that the eaid slioiirt' i)r()CfC(l to well the floods seized by him under the writ of Jicr'i fnrian issutd lieieiii. and jiay tlic net firoceo(l8 of the Bale, after di ducting the expenses tliereof, nUo Jourt in this cause, to ahich; further order herein. And it is further oidered tliat the jiarties proceed to the trial of an issue in the HighCouit of .lustice, in which th<; said ehiiiuant shall be the plaiutitf and tlie said execution creditor sliallhc the defendant, and that tlic iiuvstion to l)e tried Hhall he whether, at time of the seizure ami sale ))y the sheriff, the goods seized were the property of the clainuiut as against the execution creditor. And it is further ordered that this issue be prepared and delivered by the plaintiff therein within from this date and be returned by the defendant therein within days, and he tried at And it is further ordered tliat the (juestion of costs and .ill further questions be reserved until aftci- the ti ial of the said issue, and that no action shall he brought against the said sheriff for the seizuie of the said goods. Dated the dav of ,18 and the said the sheriff of Upon hearing, filed the No. 14J5. iNTKP.ri.KADKR OKriKR No. 4. (.SVe /6.. Form H. ol.) In the High Court of .Justice. Division. [Name of the Jinliji' or ^fl1>itA^r] in (Jhambers, Between I'laintifF, and Defendant, And between execution credit -ir, and Claimant. liespondcnts. , and upon read'vg the affidavit of day of ,18 , and It is ordered that upon payment of the sum of $ into Court by the said claimant witliin from this date, or uiioii his giving within the same time security to the satisfaction of for the ])aynient of the same aniniuit by the said claimant .according to the directions of any order to he made herein, and ujM)n p;iynient to the al)ove-nanied sheriff of the possession money from this date, the siiid sheritl' do witlidraw from the possession of the gooils seized by him under the writ of tiffi facinii herein. And it is further ordered that uidess such payment be made or security given within the time aforesaid the saiil sheritF proceed to sell the 8ai. iNTERl'LKAIiKK UUDKK, No. 7. (See /I)., Form H, ^^4.) In the High Court of dustics. Division. [JVniiie of the Jiidf/e or Master] in Chambers, liiitween Plaintiff, and Defendant. Ami between Claimant and the said the ShcritF of execution creditor and Respondents. Upon hearing , and upon reading the affidavit of Hied tlie day of IS , and It is ordered that the above-njvmcd Sheriff proceed to sell enough of the goods seized under the writ of Jteri fnrias issued in this action to satisfy the expenses of the said sale, the rent (if any) due, the claim of the claimant, and tliis execution. And it is further ordered that out of the proceeds of the said sale, (after deducting the expenses thereof, and rent, if any,) the said Sheriff pay to the claimant the amount of his said claim, and to the execution creditor the amount of his execution, and the residue, if any, to the defendant. And it is further ordered that no action be brought against the said Sheriff, and that the costs of this application be Dated the day of 18 . FOKMS - JUDCiMENTS. No. 140- O'ti'BK DisMisHtNo MoirriN (t having appeared herein [or not having delivered any statement of defence ), it is this (lay adjudged that tlie plaintilf recover against the said defendant % , and costs to be taxed. No. 148. Jirixi.MKNT IN DKKAi;i;r or Appkakance oit Dekknck wmkkk tiik Demand is Liquidated {Fixed coxfu.) [Title, &c.] The day of , 18 . The defendant not having appeared to the writ of summons {or . [Title, &c. I The (lay of , 18 No statoiiient of (iefencu hiiviiig been delivered heroin, it is tliis u^y .vljudged that the plaiMtitf recover possession of the land in the stctcement of claim herein mentioned and duscribetl as No. 151. JUDGMKNT IN DeKAUI-T OK DkKKNCK IN ACTION KOU UkcoVEUY OK Land with I)AM\(iF„s. (.SVe Order M, K. 8 ) [Title, &C.J The day of , 18 . The defendant not having delivered any statement of defence, it is this day adjudged that the plaintiti's recover possession of the land in the statement of claim herein meutioneil, and described as , in the < 'otinty of and costs to be taxeil, and it is further a, Form D, 8.) [Title. &C.J The day of .18 . No appearanoo having been entered to tlie writ of summons {or iw statemtnt of defence or demarrcr having ir Imtli n.-t l]t<' citsi man be, to be assessed. No. 15:;. JUIHJ.MENT AKTKIt Al'PKAIt AM^K AMI OnOKH I'NItKi; OkIiEK .\. UlM.E 1. {Si'c II)., Vinwx 1>, «».j [Title, kc. [ The day o! . 18 . The d«.fei;dant hiving apin-ared to tlie wiit of sunniiKUs iierein and the j»laintiff having by the order ol , dated day of 18 , ol)taine(l leave to sign juilgnient under the Itiilf of the .Supreme ('(nirt, No. 80. for (/vc(7'- order). It is this day adjudged tliatthe plaiutitl' recover against the defendant .? and costs to be taxed. The almve costs have been taxed and allowed at $ , aa Appears liy a Master's certiricat; dated the day of , 1r i? It i.s this day adju'. //.. aitiiough they were duly served with notice of trial as by the affidavit of tiled the day of appears,] ujioii hearing rtad the jilivatiiiigs and what waa alleged by counsel on both sides, tiiis Court doth declare. &c. And this Court doth order and adjudge, itc. : I No. 151. n'itic, &C.J Jl DI.MF.NT AFTER TrIAI, I'.V A .II 1!N. {.See. III., Form 5.) The day of ,18 . The action having on the i'Jth and 18th November, 18 tried before the Honourable Mr. Justice , been and a 684 ONTARIO JUDICATURE ACT, 1881. spoci.al jury of the County of , and the jury having found [state findings an in Jiuhje's or Officer's certificate], and the said Mr. Justice having ordered that jucigment lie entered for the plaintiff for $ and costs of suit [or as the case maif />«'] : Therefore it is adjudgeo that the plaintiff recover against the cen tried l)ef«re X. y., Esq., an otiicial [or special] nferei .ud the said X. V., having found [state substance of re/i n '< c rt\ficnte], it is this day adjudged that No. 150. JUUGMKNT A ITER TrIAI. uV (JI-ESTIoN.S OF A("Ci.. ' b." Heferee. {See U. Sup. (.'., April, 1880, Fonn D. «5fi.) [Title, &c.] Tiie day of 18 . The (juestious of account in this action having been referred to to the do pay the recover against the said , as and he having ftnmd that there is .lue from the the «uui of $ and directed that the costs of the reference. It is this day adjudged that tint $ and costs to be taxed. The above costs have been taxed and allowed at ."? a})pears by a taxing olticer's certilicate ilated the day ot 18 . No 100. JiiJij.MENT iiN Motion ((ienekai,). {See fit., Form I), 19 ; Order 40.) [Title, &c.] The day of 18 . (Date of (h-([er of Court.) This lotion having on tlie d;iy of IS . cojuc on before the Court on motion for judguieu*^ on bi-half of the and the Court after hearing counsel for r,he having ordered that (as in order of' Ctiurt.) It is this day adjudged that the recover against the the sum of .? and co< * i ■ ' 111 • I No. 1C3. JlUiiMKNT IN PuRStlANUE OK OlIDEK. [For ilSC where feiire h(U been ijiven to niijn jad.jiwnl unless inoney nhonld he /xiid into Court. [Title, &c. ] The day of 18 . Pursuant to tlie order {>f d;itod the day of IS , wlioreby it v/as ordi;red tint unless .■? h\ p liil into the Court by the dcfiMidint within a \v.;ok, the pl.iintill" h'; at liberty to sign liiial jn Igni Jiit tor amount in lorsed on the writ of suintnuns with interest, if a.ny, and costs ; and the said dofenvlant not b.iving paid into (! uirt the said sum of •■? , as eouditi'Hied by tlie s:, &c.] The day ot 18 . [Dale of order of Court.) The (issues ,ir (Questions) of fact arising in this action by the order dated the day of ordered to he trietl l)efore luiving on the day of Ijeing tried before and the having found Court for judgment on beliaU of the now on motion before the , the Court having lox OP Defence. over against the XRY PAID INTO See Order 32.) FORMS. It is this (iay atljudgcd that the recover against tho the sum of $ and costs to he. ta>:ed. The above costs have been taxed and allowed at $ appears by a taxing officer's certiKcate dated the day of 18 . I lUS No. 1G8. FOKM OF JUUUMENT ON I'R.KMrF. FOU SaLF. oK ImIKEC'I.OSL' HF. WITH UeFERKNCK as to IN('i;MItl thnt till' plaintitV do ,i-laintiff , or to who'u lie may apr><>int, possession oi the mort- gaged premises, or of such part thereof as iniy l)e in p().-)Sv;.s-,ii)ii oi the said ilefeiulaut . No. no. FoK.M or Jl litlMKM KOlt llKlUvMlTlON, ISSUED BY A l^OCAL M.VSTl'.l!, (Not in the lOnglisii Schedule.) [Title, &c.] 1. ITpim the .•ipi)licati(m of tlie i)laintitf, under lUile No. 78, of the Uules oi tht .Suiirmne (!ourt, and upon riMdiiig the writ of summons issuea in this action, and indorsed under Itule No. 10. and an alhdavit if, &e., tiled, &e., and an altid.ivit of, &c., tiled, ar/iis iiitm stcd ill flic (stdtr di/il] and that the proportion of the sai(i costs payable l)y the infant parties respectively be, ami tiie same is here- by declared to be, a lien on their respective shares, and that the pl.aintitl' do pay the guardi.an of the infant defendants his costs of this suit and that the same lie added to his own costs. No. iVi. Ckhtikkaie ok Taxatio.n. [Title, &.C.] 1 certify that the costs of the have been taxed and allowed at S ■ Diited, So. No. 114, ('*»'" ^'' •'^"P- f'-' M^V^- ^> ''orm 15.) Form ok Cektikkatk ok Okkuer ArrER Trial by a .Jikv. [Title, &c.] I certify that this action was tried before tlTe Honourable Mr. Jus. tice and a special jury of the County of on the .and tlaye of October, 18 . V Col'NTV COIKT mil tallowed at 8 . BY A J IKY. FORMS — WRITS OF KXKCUTION. The jury found [Htate fmlinijH], (If the Jiufije ffiven inntritctions an to Ihr jiiilginrut thereon add). And the said Judge directed, &o., [ax thr case may hv]. Dated, &c. APPENDIX (J). \V R I T S O V V. X E U T 1 O N. No. %H^* Writ ok I-'ikri Facias. (Sen R. Sup.C, Appx. F. Form 1.) In the High Court of Justice. Division. Between A. /J., I'laintifT, and C I)., and otlier-s, Defendants. Victoria, by tlie (-Jrace of God, of the United Kingdom of (iruat Britain and Ireland, Queen, Defender of the Faith, 'i'o the Sheriff' of greeting. We command you that of the ^'oods and chattels (or lands and tenements) of ('. D. in your bailiwick you cause to l)e made the sum of S and also interest thereon from the day of [Jhn/ of the jiidr/mi'iU or order, or da;/ on whlrfi money dlrcrted to he paid, or i lay from irhieh intere.it (.v directed Inj t/ie onler to run, nn the case may he], wliich said sum of money and iiitere.«t were lately before the Justices of our High Court of Justice in a certain action [or certain actions, Ufi the ease luny lie], wherein A. Ji. is plaintiff, and C, I), and others are defendants [or in a certain matter there depending intituled " In tlie matter of E. F.," as the co,se may /te] by a judgment [or order «.s trie ettse may he] ]>y a judgment [or order as the aiHe inny t>e] of our said (Jourt, bearing date the day of adjudged [or ordered an the case may he], to be paid by the said C. D. to .•/. B., together with certain costs in the said judgment [or order as the at.se may l>e] menticfued, and which costs have been taxed and allowed (l)y one of the taxing masters of our said Court) at the Sinn of $ as appears by the certiticate of the said taxing master, dated the day . And that of the goods and oliattels [or lands or tenements) of the said C. D. in your bailiwick you furtiier cause to be made the said sum of § [costs], to- gether with interest thereon from the day of , (the date of the certiticate of taxation. The writ mn.st lie go moulded as to foU Ion: the .snhstance of the judyment or order) and that you have that money and interest before our Justices aforesaid at Toronto, im- mediately after the execution hereof, (or in the cast of lands and knement.'i, inimediately after the expiration of twelve months from the day of your receipt liereof, to be paid to tlie said A. B. in pur- suance of the said judgment [or order as the case may he]. And in what manner you shall have executed this our writ make appear to our Justices aforesaid at Toronto, immediately after the execution thereof. And have there then this writ. Witness, the Honourable The day of 18 . President, &c. 691 t ' i k\ 1 .'!• \ I , 7 . i i I I 692 ONTARIO JUDICATURE ACT, 1881. No. ITO. Fieri Facias on Obdrr kor Costs. {See R. Sup. C, April, 1880, Form F, \a.) [Title, &c.] Victoria, &c. • To the shoriff of greeting. We command you that of the cooils and chattels of in your bailiwick you cause to be made tlie sum of for certain coats which by an order of our High Court of Justice, dated the day of 18 , where ordered to be paid by the said to and which have been taxed and allowed at the said sum, and interest on the said sum, at the rate of six jjcr centum per annum from the day of 18 , and that you have the said sum and interest before the Justices of our High Court at Toronto, immedi- ately after the execution hereof, to bo rendered to the said And in what manner you shall have executed this our writ make appear to us immediately after the execution hereof. And have there then this writ. Witness, &c. The day of 18 . Indorsements, Levy S and $ for costs of execution, &c., and also interest on $ at G per centum per annum from the day of 18 , until payment ; besides sherifFs poundage, officer's fees, costs of levying, and all other legal incidental expenses. This writ was issued by of agent for of solicitor for the The is a and resides at in your bailiwick. No. 111. Writ op Venditioni Exponas. (See R. Sup. C, Appendix F, Form 3.) [Title, &c.] Victoria, &c. To the sheriff of greeting. Whereas by our writ we lately commanded you that of the goods and chattels [making the necessary variations of this form thromjhout in the case of lands and tenements) of C. D. [here recite the fieri facias to the end]. And on the day of you returned to our Justices in the Division of our High Court of Justice afore- said, that by virtue of the said writ to you directed you had taken goods aud chattels of the said (7. D. to the value of the money and mterest aforesaid, which saiil goods and chattels remained in your hands unsold for want of buyers. Therefore, we being desirous that the said A. B. should be satisfied his money and interest afore- said, command you that you expose to sale and sell, or cause to be sold, the goods and chattels of the said 0. D. by you in form aforesaid taken, and every part thereof, for the best price that can be gotten for the same, and have the money arising from such sale before our Justices aforesaid, at immediately after the execution hereof, to be paid to the said A. B. And have there then this writ. Witness, &c. , the day of 18 . , '■' FORMS — WRIT8 OK EXECUTION. 693 No. 118. , groetiug. Writ ok I^ossrshion. {Si'f If:, Vorm 7.) [Title, &c.] Victoria, &c,, to the sheriQ' of Whereas, lately in our Fiigh Court of .lustico, by a judgment of the Division of the same Court [A. li. rocovereilj or [E, F. was ordered to deliver to A. B.\ posaussion of all that with the appurtenances in your bailiwick : Therefore, we command you that you enter the same, and without delay cause the said .1 . B. to have possession of the said laud and premises with the appurten- ances, and that you defend and keep him and his assigns in peace- able and ({uiet jmssession when and as often as any interruption may or shall, from time to time, be given or oll'ered to them or any of them. Witness, &o. [The latter part of this fonn is taken from the form of a Writ of Assistance, and does not correspond with the form of a Writ of Possession under the English . I udioature Acts.] No. Il». WuiT OF DELIVEUy. {See lb., Form 8.) [Title, &c.] Victoria, &c., to the aheriflfof greeting : We command you, that witliout delay you cause the fol- lowing chattels, that is to say [hfir enumerate the chattels recorered by the judgment for the return of urhlc.h. execution hati been ordered to i»me\, to be returned to A. B., which the said A. B., lately in our recovered against C D. [or C. D, was ordered to deliver to the said A. B.'\ in an action in the Division of our said Court.* And we further command you, that if the said chattels cannot be found in your bailiwick, you distrain the said C. D. by all his lands and chattels in j'our bailiwick, so that neither the said C*. D. nor any one for him do lay hands on the same until the said C, D, render to the said A. B. the said chattels ; and in what manner you shall have executed this our writ make appear to the Justices of the Uivi.sion of our High Court of Justice at Toronto, immediately after the execution hereof, and have you there then this wx'it. Witness, etc, No. 180. The Like, but instead ok a Distress until the Cuaitei. is re- turned, COMMANJ>IN(; THE SuERIKF TO LEVY ON THE DEFEND- ANT'S Goods the Assessed Value of it. [Proceed an in the preceding form until the *, and then thus:] And we further command you that if the said chattels cannot be found in your bailiwick, of the goods and chattels of the said C. D. in your bailiwick j'ou cause to bo made .? [the assessed value of the chattels], and in what manner you shall have executed this our writ make appear to the Judges of the ^)ivi8ion of our High Court of Justice at Toronto, immediately aftt execution hereof, and have you there then this writ. Witness, etc. i ■■1^ IMAGE EVALUATION TEST TARGET (MT-3) t ^ // /^ V4 f/. 1.0 I.I 1.25 1.4 IIIIIM IIIIIM 1.6 Photographic Sciences Corporation 33 WEST MAIN STREET WEBSTER, NY. 14580 (716) 873-4503 4^ p > €^ '3^ > I 694 ONTARIO JUDICATURE ACT, 1881, No. 181. Writ of Attachment. (See lb., Form 9.) [Title, &c.] Victoria, etc., To the sheriff of , greeting : We command you to attach C. D. so as to have him before us in the Division of our High Conrt of Justice there to answer to us, as well touching a contempt which he it is alleged hath committed against us, as also such other matters as shall be then and there laid to his charge, and further to perform and abide such order as our said Court shall make in this behalf, and hereof fail not, and bring this writ with you. Witness, etc. No. 18/5, WlUT OK Sequkstratkin. (See Ih., Form 10.) [Title, &c.] Victoria, etc.. To the sherilT of , greeting : Whereas lately in the Division of our High Court of Justice in a certain action there depending, wherein A. li. ia plain- tiff and C D. and others arc defendants [or, in a certain matter there depending intituled "In the matter of A'. F., as the cane nmy be] by a judgment [or order an the case ma;/ /»'] of our said (Jourt made in tlie said action [or matter], and })earing date the day of 18 , it w.as onlered that tlie said C D. sliould [pay into Court to the credit of the said action the sum of !? ; or, as (ha case may he]. Know ye, the; tfore, that we have given, and by these presents do give, to you full power and authority to enter upon all the lauds, tenements ami real estate whatsoever of the said C. D., and to collect, receive and se(iuester into your hands, not only all the rents and prolits of his said lands, tenements an(l real estate, but also all his goods, chattels and personal estates what- soever ; and therefore we command you, that you do at certain pro- f)er and convenient days and hours, go to and enter upon all tlie ands, tenements and real estates of the said C. I)., and tliat you ilo collect, take and get into your hands not only the rents and protita of his said real estate, but also all his goods, cliattels, and personal estate, and detain and keep the same under sequestration in your hands until the said C. D. shall pay into Court, to the credit of the said action, the sum of $ [or, as the case may be,] clear his contempt, and our said Court make other order to the contrary. Witness, &c. No. I8». Demverv i)H A.ssessed Value of CuArrELs. (See R. Sup. C, April, 1880, Form F, 11.) [Title, &c.] Victoria, &c., to the sheriff of greeting. We command you that without delay you cause to be returned to the following chattels, namely (JSnumerate chattels recovered by judyment for the return of which execution has fittti ■|i- ! ' FORMS — WRITS OF EXECUTION. 695 A t lately (recovered against or in action in our High Court ordered to isaue), which the said was ordered to deliver to the sai': of Justice. And we further command you that if the said chattels cannot be found in ycur bailiwick then of the goods and chattels of the said in your bailiwick you cause to be made (the o.s-si'sscd value of the chattels.) And in what manner you shall have executed this our writ make appear to us in our said Court immediately after the execution hereof. And have there then this writ. Witness, &c. Iiidorai'itients, If the chattels cannot be found in your bailiwick, levy .^ the assessed value thereof, and interest thereon at 6 per centum per annum from the day of 18 . until payment, besides sheriff's poundage, officers' fees, costs of levying, and all other legal inciden- tal expenses. This writ was issued by of of solicitor to the who reside The defendant is a and resides at in your bailiwick. agent for at li ! rttLf i ' 1 ': M No. 184. \A RHANT FOR ArRE.ST OF A DeFAULTINO Wrr.NF.SS. [This form is new. ] Province of Ontario, County of Between A. li., Plaintiff, ani., W. N. 1882, I ; 51 L. J. Chy. 344) ; where the delay was attributable to the Court [McCrae v. White, 9 Pr. R. 288, xiipra, p. 58) ; where some of tht partie.; affected by the judgment lived at a great distance, and out of jurisdiction {Re Jacques, 30 W. R. 394), but not wher? due diligence in communicating with them was not shewn (Mi/le v. Brown, [} Pr. R. 542) ; and where the order appealed from viz. : for the winding up of a Co., was founded upon a void resolution of which the appellant who obtained the order was not aware and therefore had not disclosed to the Court {Re Manchester Economic B, S.. .■iiijtra). Leavi Leave was refused whore the delay was owing to applicants ignorance of the practice ( V/ilhi/ v. Standard, ' the ap- pellant. Two sufficient sureties are required. If one dies or l)ecoinua in- solvent, another will be ordered to be substituted (Saundfr.-< v. Fur- nh-al, 2 Chy. Ch. 1"j9). It is irregular for a solicitor to become surety for the costs of appeal for his client [Beckitt v. Wra(/ij, I Cliy. Ch. 5 ; Graml Trunk Rij. Co., v. Ont. cfc Que. B;/. Co., 3 C L. T. 173). See also note to Order 7, infra. A married woman has been held to be not a proper surety (Mvirm V, Pa.froe, 8 Pr. II. 372). But see the Married Women's Property Act 1884, and Kerr v. Strlpp. 40 U. C. Q. B. at p. 134 ; Fm.sre v. McFarland, 43 U. C. Q. B. 281 ; Lawfon v. Laidknv, 3 App. It. 77, anil Hen.'sin v. liaine, 2 Ont. 302, Where a surety qualified in respect of land his conveyance ot which was not registered, the land was held insufHcient unless regis- tration was procured (Aihun-ion v. Adainson, 9 Pr. K. 9(J). W.iere one surety becomes insolvent or worthless the respondent is entitled to a new one {Gaije v. Canada PnhH.thin8. But see Firth v. Byan, 20 C. L. J. 175, and note to Rule283, p. 412. On a motion to disallow a bond, affidavits may be read in oppo- sition to the affidavits of justification made by the sureties ; the re- spondent is not confined to cross-examination of the sureties (Camp- bell, v. -Royal Canadian Bank, 6 Pr. R. 43). Where the statutory requirements are observed the bond will not be disallowed on the ground that the sureties are " standing sureties" of the appellant, in the absence of satisfactory evidence of their in- sufficiency [Norval v. Canada Southern Ry Co., 7 Pr. R. 313). : \ 8TA riNG EXECUTION'. roi inted in the note to 8. The appellant nay, after such deposit, make a Orders special application before the expiration of fourteen appuriti days to stay execution in any of the cases mentioned ^*y'j'',; in section 27 of the said Act Section 27 of Rev. Stat 1011 putioii with- in the 14 c. .38, above referred to, enacts as follows : '**y'' he When per- fecteil, exi^- cution to be stayed. Subject t) certain ex neptions in whirh i)ar- tial perform- ance is requireil by delivery into Court. "27. Upon the perfecting of such security, execution shall stayed in the original cause, except in the following cases : " 1. If the judgment appealed from directs the assignment or de- livery of documents or personal property, execution shall not be stayed until the things directed to be assigned or delivered have been brought into the Court appealed from, or placed in tlie custotly of such officer or receiver, as 1 hat Court appoints, nor until security has been given to the satisf ac ;ion of that Court, and in such sum as it directs, that the appellant will obey the order of the Court of Appeal ; "2. If the judgment appealed from directs the execution of aOrbyexeou- conveyance or any other instrument, execution shall not be stayed M"S *•'* until the instrument has beei executeil and deposited with the proper officer of the Court appealed from, to abide the judgment of the Court of Appeal ; " .3. If the judgment appealed from directs the sale or delivery of Or by thf possession of real property or chattels real, execution shall not be S'ving of stayed until security has been entered into to the sutisfaction of the 3ag„J.*L not Court appealed from, and in such sum as the Court directs, that to commit during the possession of the property by the appellant, he will not waste, commit or suffer to be committed any waste on the property, and that if the judgment be affirmed, he will pay the value of the use and occupation of tl?e property from the time of the appeal until the delivery of possession thereof, and jvlso, in case the judgment is for the sale of property and the payment of a deficiency arising upon the sale, that the appellant will pay the defioiency ; " 4. If the judgment appealed from directs the payment of money, Or to pay execution shall not be stayed until the appellant has given security, 50,^3* *" to the satisfaction of the Court appealed from, that if the judgment, or any part thereof, be affirmed, the appellant will pay the amount thereby directed to be paid, or the part thereof as to which the judgment may be affirmed if it be affirmed only as to part, and all damages awarded against the appellant on the appeal." Staying proceedings, — Neither the giving of notice of appeal nor Staying nx security for the costs of the appeal will prevent proceedings from *'^'*^'^"/*"^'' being taken under the judgment of the Court below, either for costs unde^'/uiifg (Poioell V. Peck, 8 Pr. li. 85) or to carry out any directions contained meiita;ipe;i in the judgment, such as a reference to a Master to ascertain damages "-''^ ^'■'""• {Butler V. The Standard Fire Insurance Co., 8 Pr. K. 41). Proceed- ings in the Master office may, however, be stayed in a proper case, as for example when the appellant would sustain irreparable injury (Adair v. Young, 11 Ch. D. 136 ; see also Walford v. Walford, L. R. 3 Chy. 812 ; and Cotton v. Corby, 5 U. C. L. J. 67) and to pre- vent the appeal if successful from being nugatory ( Wilson v. Church, 12 Ch. D. 454). After questions of law had been decided on a de- murrer, a stay of the trial of the issues of fact, pending an appeal was refused (Re J. B. Palmer's Trademark, 22 Ch. D. 88) ; so also a new trial was not stayed pending an appeal from the order grant- m nil I' u US. V li -J ■t>i«i 702 ORDEKS OF COURT OF APPEAL. Order 8. '"^ '*' ^^^''*' '* ^'^"'^ shewn that delay might prejudice the respon- dent Hnaneially and he might lose important evidence (McDonald v, Murriii/, 9 Pr. R. 4f5l ; See contra Goldie v. Dale' a Patent Sttel Co 7 Pr. ii. 1). See also ////«/« v. Tn-ri/, 29 W. K. 32. A stay of execution for the payment of money or costs awarded by the Court below, will under sec. 27 of llev. Stat. c. 38, be given to an appellant as a matter of right upon giving the security by that section prescribed (see Caiuphc/i v. Edwards, G Pr. R. 159 ; Fo.t v. Toronto lO Nipinnimj Hailwaji Conipanij, 26 (ir. 352 and sec. 27 printed supra). The Court may on such an application consider whether the appeal is frivolous (Norval v. Canada Southern Ra'tlwau Cornpann, 7 Pr. R. 462). It has been held that the recovery of coats, payable under an order, will not be stayed by the Court of Appeal, pending an appeal to the House of Lords, if the solicitors to whom they are payable, Costs of motion. Security must be given for the costs of the appeal as well as the costs in the Court below, in order to stay execution (Grand Trunk Ry. Co., v. Ont. <& Que. Hy. Co., 9 Pr. R. 420). Where a fund in Court is by the judgment appealed from directed to be paid out to the respondent, the Court may stay the payment out, upon the appellant giving security for the diCFerence between legal interest and the interest which will actually accrue in Court (McDonald v. Worthmjton, 8 Pr. R. 554 ; Brewer v. Yorke, 31 W. R. 109). The costs of an application to stay execution in England, where there is no enactment similiar to sec. 27 of R. S. O., c. 38, are as a general rule ordered to be paid by the applicant (see Merry v. JVid-- allx, L. R. 8. Chy. 205 ; Cooper v. Cooper, 2 Ch. D. 492 ; Morgan V. Elford, 4 Ch. D. 358). In Burdkk v. Oarrick, L. R. 5 Chy. 453, and Adair v. Youny, 11 Ch. D. 1S8, however, they were made costs in the appeal. In Ontario the general rule is now to make the costs, costs in the appeal. Sometimes formerly they were ordered to be paid by the applicant (see Norval v. Canada Southern Railway Company, 15 C. L. J. 86 ; 7 Pr. R. 462 ; Fox v. Toronto d: NipUslncj Railioay Com- pany, supra). Payment of Where money has been paid into Court for a specific purpose and money out of ijijat purpose has been answered in favor of the party paying it in, it ing^app^a^s." ^*^^ ^® P*"^ ^"* *^ *^** party ; therefore where security for costs of an appeal to the Court of Appeal has been given by paying money into Court, it will be paid out to the appellant if the appeal is allow- ed, notwithstanding that an appeal to the Supreme Court from the Court of Appeal is pending (McLaren v. Caldwell, 9 Pr. R. 118; Wilson v. Realty, 19 O. L. J. 404 ; 3 C. L. T. 599 ; Billiwjton v. Provincial Ins. Co., 9 Pr. R. 67). This principle does not, however, apply to enable a party who has thus given security for costs in the High Court and succeeded, to obtain payment of the money out to him pending an appeal to the Court of Appeal, as the appeal is a step in the original action and the purpose for which the money is paid in is not answered unless tlie appeal is unsuccessful (National Ins. Co. v. Egleson,9^r. R. 202). But where the opposite party was otherwise secured, payment out was directed (Napier v. Hughes, 9 Pr. R. 164). PREPARINd CASE. ro3 Wliorj money in Court wa'j not piid in for audi a specitic purnoae, Orders S-IO- but ciinsisteil of the subject mattur of tho litigation, it was hulil to be in the ilisoretion of tho Court whether it should he paid out or not pending an appeal (Khuj v. Danran, 9 Pr. U. (51, where pay- ment out was ordered only upon security in lieu of the money heing given). Where money has been paid in as security f(n- costs of an appeal by a party who is unsuccessful, it will, in accordance with the above principles, V)e applied in payment of the costs of the appeal, and the balance will not be treated as that party's own moneys and applied to i)ay other costs of the action payable by him, if it is shewn to have i)een borrowed for the specific purpose of securing the costs of the appeal (McKenzie v Kittmliji, 1 C. L. T. 110 ; See also Worth- imjtoH V. Johmoii, 7*2 L. T. Jour. 373). Where money was so paid out to a resijondeiit to satisfy costs of an unsuccessful appeal, but the decision was reversed by the Privy Council, the respondent was compelled, in an action brought for the purpose to repay the moneys so paid out for principal an«l interest with interest on that gross amount at six per cent. , and all sums otherwise paid for costs without interest {Citizi'iis Jus. Co. v. Parmiis, 32 C. P. 4t)2). Se.inhlf that an action was only necessary because the money had been paid out to persons not parties to the original suit as trustees for the creditors of the original plaintiff, (ih.) Proceedings in an action upon an appeal bond were stayed, where a further appeal was pending and security had in it been given tor the costs secured by the bond (McLaren v. Stephen, 19 C. L. J. 404 ; 4 C. L. T. 45). Where an injunction is granted at the trial and on an appeal, security to stay proceedings has been given under K . S. O . c. 38, s. 27. proceedings to enforce the injunction are therel)y stayed (McGarvey V. Strathroy, 19 C. L. J. 393 ; 3 C. L. T. 599 ; followijig Dumlas v. Hamilton, 19 Gr. 455, in preference to McLaren v. Cahlwell, 29 Gr. 438/. 9. After the .security has been j^erfectcd, the appel- lant shall prepare a draft of the case mentioned in the 31st section of the said Act, and shall submit such draft to the respondent, who shall return the same within four days, with his modifications or sug- gestions, and in the event of differences, the appellant shall give two days' notice of an application to the Court or Judge, to settle the case, in pursuance of the said section ; and if in the opinion of the Court or Judge such application was occasioned by the unrea- sonable conduct of either party, such party may be ordered to pay the costs thereof. 10. Where the case has been settled by the parties unneces- themselves, no costs shall be taxed, either between SedT"**" party and party, or Solicitor or Attorney and client, ^^^parS** for any matter .stated in the case, which was not not to be 11 ■ • ii A.- • 1 allowed for. reasonably necessary to raise the question in appeal. ( I ■ Apiiellaut to firejiiu'e draft of ca.se— How same to be .settled. ' '.' i I- 'if 704 Orders 10-14. ORDERS OF COURT OF APPEAL. The case shnuUl only contain so much of the proceeclings as is necessary to raise the questions involved in the appeal. In PamonA- V. Standard Im. Co., 4 Unt. App. at p. 33(», Burton, J. A., in re- marking upon the unnecessary length of the case, said : "It appears to us to bo a very grave abuse and violation of the Rules we have made on the subject, and we do not intend to impose upon the Registrar the task which the appellants have cast upon us of wa ling through this mass of matter for the purpose of discovering whetlier some portion of it ma)' properly be applicable to this appeal, but we disallow the whole of the appeal books in the taxation. If a similar case should occur again after this warning it will be our duty seri- ously to consider whether it is not a sufficient reason for refusing the whole costs o^ the appeal." Where as a matter of pleading certain issues were not raised, but at the trial had been treated as if raised, the objection was not allowed to be tiken in the Court of Appeal (Kennan v. Murphy, 8 L. R. Ir. 285). If the notes ot the evidence taken have been lost the Court of Appeal may allow the evidence to be taken over &ga,\n (Ex. parte Firth, lie Cowhurn, 19 Ch. D. 419 ; 51 L. J. Chy. 473). A new point may not be allowed to be raised in the Court of Ap- peal, where if raised, it might have been met by evidence (ib.). Where an appellant succeeds upon a point not adjudicated upon in the Court below he may not oe allowed his costs (Ooddard v. Jeffreys, 46 L. T. 904 ; Page v. Austin, 7 Ont. App. 1). 1 1. The appellant shall serve his reasons of appeal along with and as part of the draft case mentioned in the 9th Order, and the respondent shall ?orve his reasons against the appeal, within ten days from such service, or within such further time as a Judge of the Court of Appeal may allow. 13. If the appeal is from a part only of the judg- ment, the reasons of appeal shall specify the part. 1 3. If the respondent shall neglect to serve reasons against the appeal, the Court may hear the appeal ex parte and give judgment thereon without the interven- tion of the respondent. Appeal 14. Upon being served with the respondent's rea- priilted'and SOUS against the appeal, or upon his having made one copy default in service thereof, the applicant shall cause used and t i i i • , ■^'^. . filed as appeal books to be printed containing the case as sta e case, gg^-fig^j y^y ^-j^g parties or the Judge, and the reasons for the appeal, and the reasons against the appeal, if such latter reasons have been served as aforesaid, and any notice given under the i6th of these Orders, and forth- with deliver one of such copies to the Registrar by Reasons of Appeal to be served witli draft case : Reasons against to be served in ten days thereafter. Reasons to specify what part if only part of judg- ment ap- pealed from. If reasons against not served. Court may hear ex parte. CROSS Al'I'KALS. 1)5 ulnMii the same shall be filetl as the stated and settled Orders case, and ten copies for the use cjf the Judijes and ^*■^^■ Officers of the Court ; and alau titirtij cujnus for the purpose of hni7U/ deliocird m the event of an appeal fo /In. Supniue OoiiH of Cunadii to the party appadiny to that Court for use upon sadt appeal. Siteh additional thirty copia^ are not required to he de- liiisited in r.ase^ of appeal fritni dotLntj/ (.'ourt.s. Tlu! clauses in italics wcro addcil l)y ()i. Across ai)peal shall not under any circum- *;'|','|'^,^,, „,,, stances be necessary, but if a rt-;pondent intends upon '"^cossmy , ill iui\'''iisc * the hearing to contend that the decision should be Kusiiomiun' varied, he shall with his reasons against the appeal ["it^ec of ijive notice of such contt. tion to any i arties who may ;;.'^''V'T f' , . '' i ^ It lie ilosiri.' be artected b)- such ccjutention. and such notice shall to vary concisely state the grounds of sach contention in the same manner as reasons of a[)pcal are stated. The omissicjn to give such n ""ice .shall not diminish the powers conferred by the Aci upon the Court of Ap- peal, but ma}- in the discretion of the Court be grcimd for an adjournment of the ap|"^^eal or for a special order as to costs. Tliis Order is sulistuitiiilly the same as the l-^nglish l{. Sup. C'., 1875, 0. 58, r. 6, ami i;. Sup. (J., 1883, O. 58, r. 6. A notice by way m' cro.^s appeal will coine on with the original appeal (see Cooikii v. NicJiolU, 7 L. U. Ir 107). Notice by a respondent under this Rule to vary the decision of the Court was proceeded upon, though the point was one in which the original appellant had no interest (lialpli v. Larrick, IJ Ch. D. 873). But the Court will not, under the i)ower contained in this Rule, eiitertain a cross appeal merely on a question of costs (Hurr'iH V. Aaron, 4 Ch. D. 74'J). Where respondents gave notice of intention to have the judgment varied, and both appeals were dismissed, the appellants will have to pay the costs, except such as were occasioned by the notice ( Tlit Lauretta, 4 P. D. 25). Where there were two respondents one of whom gav^ a cross notice affecting the other respondent, the appellant, whose apjjeal was dismissed, was ordered to pay half the costs of both the respon- 45 (li'cisiDii. M ]i V m ■11: ; I;: 701) ORDERS OF COURT OF APPEAL. Ordara 17-19. What the reasons for dents and the unsuccessful respondent in the cross appeal was ordered to pay half the costs of the other respondent (Harrison v. Corimall Alineral Ihj. Co., 18 Ch. D. 334). VVhere, however, the costs could not have been materially increased by the notice, no apportionment was made but a fixed sum was allowed for costs in- cidential to the notioe [Robinson v. Drakes, 2S Ch. D. 93). 1 7, The reasons for and against the appeal shall and'asainst Contain a statement of the points of law intended to shall contain j^^ argucd, and the authorities relied upon. [Order IS has been rescinded hy Order 67, and the fol- lowing suhst'uuted : 1 8. The appeal books shall be printed on paper of good quality, on one side of the paper only, and in demy-quarto form, with small pica type leaded ; and every tenth hne of each page shall be numbered in the margin, the numbering to be from the top of each page, and not from the beginning of the book ; and the size of the books shall be eleven inches in height and eight and a half inches in width. An index to the pleadings, evidence, and other principal matters, shall be added. The opinions of the Judges of the Court appealed from shall not be printed where the same have been already issued in the regular reports, but a reference to the same shall be given in the appeal books, and shall be sufficient. The style of the cause in the Court below shall be used and retained in the appeal book, and in every proceeding in this Court the designation "appellant" or "respondent" being added, e. g., Between A. B. {respondent), and Plaintiff, , C. D. {appellant). Defendant. Order 52, infra requires appeal books to contain the ilate of the first proceading in the suit or matter, and to state the dates of the filing of the several pleadings at the commencement of the copy or summary thereof ; otlierwise the books will not be received by the Registrar, nor will the appeal be heard, ifnotsopre- 19. The Registrar shall not file the case without tmrsimuaot the leave of a Judge, if the preceding order has not ■**'*• been complied with. When Orders 67 and 08 infra were promulgated, a notice was added as follows : — Note. — Rule 19 which precludes the Registrar from receiving books unless printed according to the foregoing terms, will be rigidly 37, and the fol- jd, a notice was PRINTING APPEAL BOOKS. 707 enforced. After the above intimation partiea will only have them- Ordew selves to blame should the books be rejected by the Court on account 20-23. of their not being properly arranged. 30. If the press has not been carefully rorrected Print tu w the Court may disallow the costs of printing, or may v?ie,'u,Ja''" decline to hear the appeal, and make such order as to 5",'^"'^lxp^!,;Je postponement and payment of costs as may seem just, t" I'c uis- ■^ * '■ •' ■' alloweil : ov In Barber v. Morton, 2 C. L. T. .340, Burton, J. A., said, "I think J^''"^': "■;* there is no reason to interfere with the previous decision in this ""^ ' "■ ' Court as to allowing ten cents a folio for revising proof. It is, I think, little enough if the work is properly done ; and if not properly done then the Court should adhere to its Kule and disallow this charge altogether." 3 I . The printed case and the copies thereof for the Case and use of the Court shall be delivered to the Registrar aJl'iveie'aiti"» to i»' service to be made, and may postpone the hearing of po't,',one*'''' the appeal for that purpose upon such terms as n^ay ||,';^[y;«,.[;^^^^ seem just. i ■. > -i i ■ I \ i ( ' 1 (■ 1' It . ; I . \ ^4i f 708 OKDERS OK COURT OF APPKAL. Orders 24-29. 24:. If cither party neglects to appear at the proper day to support or resist the appeal, the Court may iVarty'fiiii tn li*'^»* thc Other party, and may give judgment without ■.i]q<,:nv the intervention of the party so neglecting to appear, proceed." or may postpoHC thc hcarmg upon payment of such ^"''"- costs as the Court shall direct. interi.xu *i5. lutcrlocutory applications to the Court or a tionsTo'be' Judgc shall bc made by notice of motion supported motion'' "^by affidavit to be served in the office of the Registrar before the notice of motion is served. To be served *^^' The uoticc of motion together with copies of two clear the affidavits filed shall be served at least two clear days ''^^^' before the time of hearing; and in the computation of such two clear days, Sundays or any day on which the offices arc closed is not to be reckoned. Adinissioiis "-il. Admissions of the service of a notice of motion notTnie' upon the opposite Attorney or Solicitor need not be verined uii.i verified by affidavit ; and in no case shall an affidavit llOCO.stSOf . ' , 11 1 • 1 • 1 ,, affidavit of of scrvicc be allowcd upon taxation, unless it shall bnveiiiinie^^ that the party served shall, after a demand aol\'cncy Act.''"^' 33. The party desiring to appeal shall, within theparck'sat eight days limited by the Act serve a notice upon the I^'i'iu'^f'toVM- parties who may be affected by the result of the ap- *j^'J^\"^) '"''' peal, stating his intention to appeal, and upon giving f ] i " !i .;!; II 710 Orders 34-38. To be set down in 7 days alter .security. ORDERS OF COURT OF APPEAL. such notice he shall be deemed to have adopted pro- ceedings on the appeal in compliance with the Act. 34. The appellant shall within seven days from making the deposit or giving the security required by the 1 28th section of the Insolvency Act, set down the matter to be heard by filing with the Registrar a pnecipe for the hearing thereof, on the next Tuesday on which a Judge shall sit under the preceding Seven days' Order, being not less than seven days thereafter ; and shall serve not less than seven days' notice upon the opposite party, stating the time for which the appeal has been entered to be heard, (adding "or as soon after as Counsel can be heard") together with the grounds of objection on which the appellant relies, as nearly as may be in the manner in which reasons of appeal are drawn in appeals brought up from the Superior Courts, notii'e of liearing to III- given, stating grounds of ubjeetiou. No petition or other notice neces- •^ary. Clerli or other officer to transmit papers to tliis Court. No case to be prepared; but notice of liearing to be furnislied for use of Judge. 35. It shall not be necessary to serve any petition or any other notice than those hereinbefore provided. 36. The clerk or assignee or other ofificer having the custody of the documents, papers and proceedings, shall upon the request of any party interested in the appeal, and upon receiving a sufficient sum to defray postage, transmit the same to the Registrar for the use of the Court, and it shall not be necessary to pre- pare any case when the appeal is to be heard by a single Judge, but the appellant shall when setting the appeal down to be heard leave a copy of the notice of hearing with the Registrar, to be delivered to the Judge. Resisiiar to 37. After the appeal has been disposed of, the Registrar shall at the request of any person interested, and upon receiving a sufficient sum to pay postage, return such papers to the officer from whom the same were received. leiuin pa- pei s after disposal of. 38. If the necessary papers have not been received Papers must besupphed ^ i i f.recedlug by the Registrar, on or before Friday preceding the in^-oth«T' ^^y "^n^^d for the hearing, the appeal shall not be wise appeal heard unless the Judge otherwise orders. will not be ^ o heard. COUNTY COURT APPEALS. 39. The costs and fees mentioned in Table D in Orders the Appendix, and no other or greater shall be allow- ^^',^^' ed on taxation or taken or received by any Solicitor, and" fees arc Attorney, Sheriff, or Officer respectively for any ser- u.'meiUn"" vice rendered under the Insolvent Act ; and the same "^"'^1*= "J'" shall be the costs, fees and charges fixed and settled under and in pursuance of the 123 section of the said Act. COUNTY COURT APPEALS. For the purpose of avoiding unnecessary expense in appeals from the County Courts — particularly in making copies of papers — it is ordered that : (39 a). The pleadings, motions, rules, orders, and Transmis- other papers certified to the Court of Appeal under ^""sfiom section 41 of the Act respecting County Courts, shall ^;^JJ"j^^?] be the original papers filed in the County Court; and when the evidence has been taken by an official re- porter, his transcript of the evidence used, or prepared for use, in the County Court upon the motion which is the subject of the appeal, shall be the evidence so certified. The said papers, together with the Judge's charge, and his judgment or decision, and also the evidence when not taken by an official reporter, and all objec- tions and exceptions to the evidence, shall be fastened together and transmitted with the Judge's certificate to the Registrar of the Court of Appeal, who is to return them to the County Court when the appeal is disposed of. It shall not be necessary to certify or transmit the evidence, or the objections or exceptions thereto in any case in which the appeal is from a judgment, or decision upon the pleadings, or upon any action not founded upon the evidence. (Wednesday, May 19th, 1880.) 40. An appeal shall be set down to be heard at ^l'l'^^'^. the first sittmgs of the Court for the hearmg ot argu- court to be ments, which shall commence after the expiration oftingsoom-' thirty days from the decision complained of. SS'^anef Sunday is not reckoned in the thirty days when it is the first day "^ '-''^^'^""^• (Cooper V. Dixon, 3 C. L. T. 198). m : '* \ ■ \ ) \ r !! i ! 1 ■] i'\ i Hi W •1 v: m ■t 712 Order* 41-46. How appeals to 1((! set down Appeal book.s to III' printed. What boo!vs are to contain. Not nece.s- sary to i)rlut uviilcnee not bearing on question. Opinion ol' Judge and I'.hargu to jury, &o Short ni'iterial parts only of exliibitri to bo printed. Documents unneee.s- sarily printed not allowed for on taxation. All lorniiil matter.^ c.;/. , motion papers, rules, i'e:tl 48. The appellant shall, at least six days before six .lays' the sittings at which the appeal is to be heard, serve iieariii^;'.nii the respondent with the notice of the setting down of ',;|,'.',!,^,;,.' t,, the appeal and with a copy of the printed appeal book, '/f ,^,'^tt|;',! and of the grounds and reasons of his appeal. IninipioiMiiy case the respondent is of opinion that any necessary risj.nulun' matter has been omitted, he may at any time before !^',;, "^'[,'1^ the hearing leave with the Registrar a memorandum Hi^^s'istmr briefly referring to such omitted matter. 49. Service of all necessary notices may be made [^y'!,i!i'.v,.,\",,ii either upon the attorney or upon his town agent, in Attorney or the same manner as if the suit were in one of the Su-as^inSuiM- perior Courts. ""' C'""'^'- 50. If the foregoing rules are not complied witii; '{/"'ij^,"''' the appeal shall not be heard, unless the Court a Judge witu, -.xvy^.a shall on application made upon two days' notice tOhl,'uMi'. " the respondent otherwise order. I imi.'. 5 1 . The costs to be taxed and allowed upon ap- ^^caiL- o pcal.s from County Courts shall be on the same scale as q'! b" as formerly allowed upon appeals to the Courts of ^' ^' Queen's Bench or Common Pleas : And a sum not exceeding in any case $2, may be allowed for corres- pondence during the progress of the appeal. 53. All books, as well in Superior Court as County f;}'^\^:}[„ Court appeals, shall contain the date of the first pro-cmitain ceeding in the suit or matter ; and the dates of the UVcnii filing of the several pleadings shall be stated at the |^[XXa!l"'' commencement of the copy or summary thereof. In '"p'; "tii;> the event of non-compliance with this Rule such books not\oVM. will not be received by the Registrar, nor will theJ',^^u';;!J'i;,'''' appeal be heard. SITTINGS, VACATION, COMPUTATION OF TIME, &c. Smi.No. 53 There shall be five sittings in the year for the FivcLdoii hearing of arguments, commencing on the second u-^^iiMiiy. Tuesday in January, the first Tuesday in March, the second Tuesday in May, the first Tuesday in I ; Ml* iiill 7U ORDERS OF COURT OF APPEAL. Orders 43-81. It' necessary, nxtra may be ordered. Vacations. Two annually. September, and the second Tuesday in November, or in ca.se any of these days shall be a legal holiday, then on the following day. 54. In case of sittings at any other time being deemed necessary or convenient for the despatch of busine.ss, due notice of the time of holding the same will be given. 55. There shall be two vacations, namely : the long vacation commencing on the ist day of July, and terminating on the 31st day of August, and the Christ- mas vacation, commencing on the 24th day of December and terminating on the 2nd day of January following. This Rule is now superseded by llule of Sup. Court 532. hst*da"s ^^" '^^^ days of the commencement and termina- luimed tion of cach vacation shall be included in and reckoned therein. part of the vacation. Kcom"' ^'^- The time of either vacation shall not be putation of reckoned in the computation of the time appointed or tune, except ,, , , , ^-.'^ , r i- in c. c. allowed by these Orders for any act or proceeding, appeals. exccpt in the case of County Court appeals. Time for doing any act, &,i'. , may be en- larged or abridged by Court or .Judge, First day excluded last day included in computing days not ' ' clear days." 58. The Court or a Judge shall have power to en- large or abridge the time appointed by these Orders for doing any act or taking any proceeding upon special application, and upon such terms as the justice of the case may require. 59. In all cases in which any particular number of days, not stated to be clear days, is prescribed by these Orders, the same shall be reckoned exclusively of the first day, and inclusively of the last day, unless such day shall happen to fall on Sunday, or a legal holiday, or non-juridical day. 60. In all cases expressed to be clear days or where the term " at least " is added, both days shall be excluded. When "clear days" named or the words "at least used both excluded. Practice of Court ap- pealed from to govern in matters of service, &c., where not specially provided for, 61. In all matters, relating to services of notices, not specially provided for by these Orders, the prac- tice of the Court appealed from shall be followed. M MONEY IN COURT. 715 November, or I holiday, then ;r time being : despatch of ing the same ely : the long of July, and id the Christ- !4th day of ly of January art 532. and termina- md reckoned hall not be appointed or proceeding, als. power to en- hese Orders eding upon LS the justice r number of bed by these ively of the unless such gal holiday, lys or where ys shall be of notices, , the prac- jliowed. PAYMENT OF MONEY INTO AND OUT OF COURT. Orders 62-68. 63. Money ordered to be paid inta Court is to be MotKy ya\' pitrticM to the caiinc) manifest error hath intervened wherefore (the appellant) desires to appeal from tlie said judgment to the Court of Appeal. Now the condition of this obligation is such, that if (the appdlint] do and shall etfectually prosecute such appeal, an make oath and say, tliat 1 am a resident C. D, , Defendant. ) inhabitant (jf Ontario, and am a house- holder in, {or a freeholder in ,) and that I am worth tlio sum of , {the ■•ii.uii mentioned as the penalty, or such suiii, (i.s . H. were sworn at &c., the day of 18 , before me. Commissioner, &c. Form of brief state- ment of plending-s. F R M C . ., Action commenced by writ dated 2nd .Fanuary, 1878. Declaration : Filed 10th January, 1878. 1st Ctmnt. — Trespass to goods. '2nd " — Common Counts. Pleas. Filed J4th January, IS78. To Ist Count. 1. Not guilty. 2. Not possessed. 3. Leave and license. To 2nd Count : Numpiavi imlehitatu-i. ( Replictation and other pleadings to ])e in a similar form, but suffi- ciently full to be intelligible). mmissioner, &c. ar form, but suffi- Tnsolvkncy tariff. F U l{ M D . 'rAitii'i'. Fi'SS to Solicitor or Attorw i/, (t.i hvtwccn purlij niul jxirlif, ttnil iilso (>.> hiiwceii Solicitor and Cliint. lustructions for deinaiid of .'issigimient l)y (lel»toi' or for com- pulaory liciuidation, or for potition, wlu-ru tlu; stiituto expressly recjuires iv petition, or for hriof, where nuvtter is rc(|uire(l to be argueil by counsel, or is authorizeil by the Judge to be argued by counsel, or proceeding.s on appeal ."? "2 ' lustructions for other necessary proceedings 1 00 Drawing and engrossing petitions, deeils, atfiilavits, notices, adverti'tenients, pleadings, and all other necessary ilocu- ments or papers when not otherwise expressly provided for, jjer folio of 100 words, or under '20 Making other copies ."hen required 10 (When more than JiiH copies are reiiuired of any notice or other paper, five i>ni • to be chargeil for, unless the notice or paper is printed, and in that case printer's l)ill to be allowed in lieu of copies). Drawing schedule, list or notice of liabilities, per folio, when number of creditors does not exceed twenty 20 When the number of creditors therein exceeds twenty, then for every folio of 100 words over twenty 10 Every common affidavit of service of papers, including atten- dance 50 Every common attendance 50 Every special attendance on judge, or l)efore assignee or at meetings of creditors 2 00 For every hour after the first 1 00 (To be increased by the Judge in his discretion.) Fee for settling special composition deed, or consent to dis- charge 2 00 Fee on writ of attachment against estate and effects of insol- vent, including attendance 2 00 Fee on rule of Court or special order of judge (whether ni.n or absolute 1 00 Fee on sub. ad lest, including attendances I 00 Fee on ,sah. duces tecum including attendance 1 25 And if above four folios, then for each additional folio, over such four folios 10 Fee on every other writ 1 00 Every necessary letter 50 Cost of preparing claim of creditors, and procuring same to be sworn to, and allowed at meeting of creditors, in ordinary case, where no dispute I 00 Preparing for publication advertisements required by the Statute, including copies and all attendances in relation thereto 2 00 Preparing, engrossing, and jirocuring executions of bonds or other instruments of security 2 00 Actual travelling expenses, not exceeding in any case 10 cents per mile, actually travelled Actual disbursements for postages and other necessary ex- penses ... Bill of costs; engrossing, including copy for taxation per folio 20 Copy for the opposite party 50 717 I ) f ■' \ > '< m I'l' 1 ; n i/t I- iii 1- 718 ORDERS OF COURT OF APPKAL. Taxation of costs $| ()0 N'o allowanoc to bo mae//^f.M^^ tlesires to ajtpeal froM the said judgment to Her Majesty, in Her Majesty's Privy Council. Now the condition of this obligation is such, that if (the appellant) Jo and shall etlectually prosecute such appeal, or pay sucli costs and damages as shall be awarded, in case the judgment aforesaid to be appealed against shall be afiitmed, or in part attirmed, then tliis obligation shall be void, otherwise shall remain in full force. A bond according to these terms having the words "or pay " in the condition, instead of "and pay" the words used in Order 35, is regular; and " eflectually prosecute" means "successfully prose- cute." But to secure the amount found due to the respondents the above condition is not sutticient. A bond for that jmrpose must be conditioned in the same way as a bond under K. S. C). c. 38, s. 27, subsec. 4 printed in note to App. Order 8 (International Bridge Co. v. Canada Southern Ihi Co., 9 Pr. II. 250). The Privy Council will not advise Her Majesty to admit an appeal from the Supreme Court save where the case is of gravity in- volving matters of public i.iterest or some important question of law, or affecting property of considerable amount, or Avhere the case is otherwise of some public importance, or of a very substantial character {Prince v. Gaynon, 8 Ajjp. Ca. 103 ; Johnaton v. St. Andrews, 3 App. Ca. 159). Special leave to appeal was refused in a case involving only an issue ox fact {Canada Central Ry. Co, v. Murray, 8 App. Ca. 574). 37. That in every case of appeal to Her Majest)^ in Council, the obligors, parties to any bond as sureties, shall justify their sufficiency by affidavit in the manner and to the same effect as is required by the foregoing Rule number eight. [No. 6 of present Orders.] 719 ' '1 ■t; I II I ' m- INDEX ABATEMENT. See diAXdE op Parites bv Dkath, kv.. adding parties on, 489. assignment, &!., 489. continuing action after, 489. bankruptcy, 488, 489. birth of party interested, 490. counter-claim, reviving, 490. death, 487, 489. former practice as to, 487. marriage, 487, 488. pleas in, abolished, 297. prcecipe order for, 489, 490. survival of cause of action, 487, 489. ABSCONDING DEBTORS, procedure in actions against, 158, 160. ACCOUNT, action for— indorsement of writ, 168. default of appearance, order for, 225. appearance, affidavit of defendant necessary, 226. motion on notice, 226. statement of claim necessary, 227. actions involving, reference, 75. application ou notice, 226. claim for, vs. Executor need not be indorsed on writ, 169. directed on admissions, 278. at any stage, 383. n default of appearance where writ so indorsed, 226. on motion for judgment, 434. forms of pleading in action on, 633. questions of, reference under C. L, P, Act, 71-73. special case, 73. specially claimed by writ, 168. ACCOUNTANT OF THE SUPREME COURT. See Ofpickiw. authority of, 106. bonds to be taken in name of, 562, 576, books to be kept by, 561. 46 •f ; 1' ' 1 i i i 1 ; w 1 m ■. 1 ; 1. '■) i um h fi 0: •i ! nj iiy ■I. ! I 722 ONTARIO JUDICATURE ACT, 1881. ACCOUNTANT OF THE SUPREME COV RT—(Contimfd). cheques, how to be signed, 561. expenses of office of, how paid, 119. office of, 559, 560. orders dispensing with payment into Court, office copies to be left with, 562, payment of money into Court, 560. " out of Court, 561. property vested in, provisions as to, 117, 118, 591. Registrar to act as, until other appointment, 562, return by, of "Account of Official Guardian," 115, " «' " moneys paid into Court, 561. ACTION, administration. See that Title. all steps to be taken in same Division, 45. and in same office, 196. and before one Judge, 47. assignment of particular, to certain Divisions, 45. conduct of, who should have, 247. definition of, 132, 135. dismissing, practice, 41. Divisions .of High Court, assignment to, 45. first document in, to be marked with name of Division, 44. form and commencement of, 132, 135. forms of pleadings. See Pleading, Fokm.*!. hearing of. See Trial. how commenced, 135, et seq. indorsement of writ. See that Title. information, turned into, 135, 162, 326. interpleader, 135. <%e that Title, joinder of causes of. See Joinder of Causes of Action. land, for. See Action to Eecover Land. lunatics, by and against. See Lunatics. mandamus. See that Title. misjoinder not to defeat. See Parties. nuisance, Attorney-General, action by, 135. parties. See that Title.I pleadings. See that Title, proceedings in, office in which to be carried on, 146. reference to arbitration. «?< e Reference, Arbitrator.s, single Judge tries, 48. title of, to be marked on pleadings, 292. transfer, general power of. See Tran.sfer. trial of. See Trial. trustees, by and against, 234. to be left with, 562, INDEX. ACTION TO RECOVER LAND. See Ejectment. appearance, by landlord, 200. by person not named as a defendant, 200, 201. form of, 201. notice to be given, 201. omission to give notice, effect of, 201 . assimilated to other actions, 7. defendant in possession need not plead title unless equitable, 298. default in delivering defence. See Default. foreclosure seems not to be, 271. forms of pleadings, G51-653. Set Forms. joinder of claim with. administration, 272. injunction, 272. mesne profits, 271. receiver, 272. recovery of deed, 272. specific performance, 272. judgment Ijy default of appearance. Sec Default. leave to join with other causes of action, 271. limited defence, 201. non-appearance or limited appearance, rights of plaintiflf', 209. notice of, 202. service of notice, 202. service of writ where possession vacant, 188. unlimited appearance, efiect of, 202. ADDRESS FOR SERVICE, And set Indorsement of Writ. defendant's, 197. fictitious, appearance set aside, 197. ADJOURNMENT OF TRIAL. See Trial. ADMINISTRATION, action for, when necessary, 140, 141. affidavit by creditor, 145. advertisements for creditors, form of, contents of, 144-5. Chancery orders respecting apply to all Divisions, 138, 227. conduct of proceedings, who to have, 142. costs of, commission in lieu of, 156. apportionment of, 157. unnecessary proceedings, 158. when given out of estate, 141. creditors, attendance of, 145. proof by, 145-6. executor or administrator may obtain, 143. " " affidavit of, as to claims, 146. 728 h, i v' i M Hi ■ il i * \M 724 ONTARIO JI:D1CATUKK ACT, |S,S| ADMINISTRATION— (C'wH^iHMw/). forms of affidavits, notices, &c. See Foi'.ms. forms of indorsement, 619. pleadings, 034, 63'). form of writ of summons fur, 20, 159, 165. f\er Fkrm.s. infant defendants, service on, 182. notice of motion for a, form of, 141, 165. " to creditors to produce documents, 145. " " their claim allowed, 149. *♦ " to prove claim, 149. " " to apply for chetiue, 150. parties to motion for, 24(5. parties to attend proceedings, 142, 268, 518. parties under Chancery Orders, 58-61, 151. powers and duties of Master, 144, 145, 151, 152. prmcipe judgment in, 210, 227. who may give, 210, 2' 1. procedure to obtain, 139, 141, 151. " under administration order, 144, 150. real estate, enquiries as to, 144. service of notices, 150, 227. special en<'iuiries, 140. ordinary enquiries, 144. staying creditors' actions, 140. unnecessary applications, 141, 158. ADMINISTRATOR, actions by and against, 234. administrator ad litem, 235. ADMISSIONS. See Plkadisg-s, Motion for Jl'domknt. AFFIDAVIT. And nee Evidence. alterations in, 557. application to attach debts, on, 632. argumentative matter in, 412. commissioners for taking, 120. cross-examination on, 411, 412. deponent's abode and description to appear in, 556. Division, style of amendable, 556. documents as to, 631, 632. erasures in, what are, 557. evidence at trial by. See Evidence. form and contents of, 412, 556. garnishee order for, 632. hearsay allegations in, 412. illiterate persons making, 557. indorsement or note shewing party filing, 556. INDEX. 72& AVFWAVIT— {Continued). interlineations, alterations or erasures, o57. interlocutory motions on, 412. interpleader, 63.S. jurat, 556. of service of summons, form of, 630. office copies of, 558. print, partly in, 550, 556. several deponents, 556. signature of deponent necessary, 556. , stamps on, 557. writing, partly in, 550, 556. AFFIDAVIT OF DOC IJMKNTS. .SV« Discovery, DndMKNTs. AfiENT, • forms of pleadings in actions against. /Jt-e Form-j. forms of pleadings in action against, 636. AMENDMENT. And .s^« Plead[N(}. clerical mistakes in judgments, &c., 449, 5.50. counter-claim or statement of claim tiled without lo:ivo, .S27 8. time for, 327-8. defects or errors, 559. disallowance of, 322. every necessary amendment to be made, 559. failure to make after leave, 330. indorsement of writ, 1 62. , leave when necessary, 330. non-compliance with rules, effect of, 559. of pleadings on adding defendant, 255. parties, adding or substituting plaintiffs. •S'/'c Pakiiks. powers of Court of Appeal, 121. statement of claim without leave, 327. of defence without leave, 327. writ of summons, 162. order when necessary, 162. unnecessary after statement of claim delivered, 162. AMENDMENTS AND ALTEKATIONS IN .TUDICATIJIIE ACTS. Council of judges to consider and report annually as to, 102. AMENDMENT OF PLKADINCJ.S. .Vw Amenument, l'(,KA[)r.N.;. APPEAL, 51, 690, 719. admissions of service, 708. affidavits of service, 708. appeal books. contents of, 704. dates of pleadings to be mentioned, 462, 4(»7. ■: J r ! 1 \\\' 726 ONTARIO JUDICATURE ACT, 1881. APPEAL— ( Con<»? ued) . appeal books — (continued). delivery to Registrar, 705, 707. neglect, motion to dismiss, 707. to respondent, 707. index to, 706. printing, regulations as to, 706. non-compliance with Orders as to, 706-7. style of cause, 706. assessment of damages under C L. P. Act, sec. 197, 77. • award, under C. L. P. Act, sec. 189, 74. " " " " " 76, 82, 195. " " " " " 198 (County CouitH). 78. exhibits, production of, liow enforced, 85. award on voluntary reference, 82. bond, 696. case, in appeals from High Court, 703. costs of unnecessary matter, 703-4. printing, 461. reasons of appeal, part of case, 704. return by respondent of draft, 703. ; service by appellant of draft, 703. settlement of by Judge if parties difter, 703. certificate of judgment, making an order of Court appealed from now uimeoessary, 70!). notice of settling, 709. variation of, 709. Chambers, from, 328, 337, 521 . . Court of Appeal, to, 521. Divisional Court, to, 54, 328, 359. fresh evidence on, 328. how made, 337. time for, 328, 337, 338, 554. expiring on Sunday or lioliday, 552. "clear days," 468. consent order, when appealable, 51. costs, affidavit of service, 708. appeal from order as to, 51, 52. correspondence, counsel fees, 708-9. allowance of .f 5 for, 708. cross appeals, 705. instead of committal, 5 1 . in discretion of Court, examples of, 51. no appeal for, when, 51. of postponement of hearing, 463. INDEX. 727 neoeasary, 70!). XPFEAL— {Continued). costs — {continued) . of trusteeit and mortgagees, onler as to appealable, 51. points not raised in Court below, 704. re-argument, costs of, 708. tariff of, in Court below to govern, 708. taxation of, correspondence, 463. counsel fees, 463. fees generally, 463. unnecessary matter printed, 703. counsel, fees, 708. when two allowed, 709. County Courts, from, 13. appeal books, contents, 712, 710. * dates of pleadings and proceedings to be stjited, 712. evidence, when to be transmitted, 711. exhibits, printing of, 712. formal matters to be omitted, 712. number of copies to be printed, 712. no copies for Supreme Court, 705. papers to be transmitted to Registrar, 711. printing, 712. supplying omitted matter, 713. unnecessary matter, costs of, 713. what pai)ers to be transmitted, 711. costs, scale of, 713. correspondence, ^2 allowed for, 713. non-compliance with Orders, 713. notices, how served, 713. setting down, mode of, 712. notice of, 713. time for, 711. transmission of papers from Court appealed from, 711. cross-appeal, costs, disposition of, when both appeal and cro^s-a[)peal di.smi.i.si.'d, 705. none, on question of costs, 70"). not necessary, 705. notice in lieu of, 705. "^ ' . when to be heard, 705. discontinuance of appeal, no order for costs necessary, 699. dismissal of action, order for, 554, 555. 1 :» ! : 'I t. Is: I 1 ! ^Hl Ifi .' V f.'lil* 728 ONTARIO JUDICATURE ACT, 1881. APPEAL— (Cort/iHMerf). discretionary orders, cases illustrating, 51, 52. Divisional Court, to, when, 48. entry of appeals, 707. evidence, lost notes of, 704. execution, staying, 698. fees, what allowed. See Costs supra. forms, affidavit of sureties, 716, bond in appeals from High Court, 715. to Privy Council, 719. notice of appeal, 697. statement of pleadings in County Court cases, 71'). as to relief to non-appealing party, 55. time for, 56. computation of, 552, 7 14. enlargement or abridgment, by consent, 552. for application to stay execution, 701. delivery of case to Registrar, 707, 710, 713. I INDEX. 731 ^eiicy, 50, 099. APPEAL— (Ct>»j. notice of, 707. return of draft oiiae, 703. setting down appeal, 707, 710, 713. settling certificate, 709. serving notice of hearing, 707, 710, 713. reasons against appeal, 704. vacation not reckoned in computing, 714. unanimous judgment of Divisional Court when appealed to, 53. undertakings not to, enforcement of, /)6. vacations not reckoned in computing time, 714. withdrawal of, not revocable, 696. iiprovided for, 714. APPEARANCE, address for service required, 197. consequence of not giving, 197. after time expired, 199. by landlord in action to recover land, 201 . partners, 198. several defendants, 199, 207. third party, 261. two solicitors for one defendant, 196. person not named as a defendant in action to recover land, 200. default of, 203. See Defauli . of solicitor in entering, 199. notice of, 199, 201. defective, no address, not receivable, 197. defendant appearing in person to give address, 197. and also address for service, 197. sued by wrong name, 196. form of, 197. how entered, 196. in actions to recover land, 201. effect of omission to give, 201 . effect of non limiting, 202. form of, 202. landlord, notice of, 201. limited, in action for land, 201 . " notice to be given, 201. limitation of defence to question of amount, 202. form and effect of, 202,203. ; • ? I'M :i! il^' 732 ONTARIO JUDICATURE A( T, 1881. APVKARASV,E—{CoiithiUfd). limitatinn of — {conlinued). notice of, 20*2. may he entered at any time before judgment, 1!K). may he enteref to plaintiff, 1%, omission to give, effect of, 200. one person sued in firm name, 108. ytartnera, ajtpearance by, 198. place for, indorsed on writ, 172. service of notice when statement of claim dispensed with, 198. set aside where fictitious address, 197. several defendants in one memo., 199. solicitor ap])earing to give address, 197. not appearing after undertaking, may be attached, 199. statement of claim, if dispensed with, to be so st.'vted, 198. third party by, "^"l. , time for, 162, 197, 198. when writ served out of jurisdiction, 194. waives prior irregularities, 197. where entered, 196. ARGUMENT. cases and points not to be reserved for Divisional Court, 48. ARBITRATIONS. .SVe Kkference and Referees. Submimsiox. certain proceedings in, may be had in any Division, 9. enlargement of time for making award, 81, 93, 9 k not affectetl by Judicature Acts, 64, 70. power of Court of Appeal, 12, 54. procedure in, generally, 87. Railway Acts, award under, cannot be set aside, 79 voluntary submission, when it may be made a Rule of Court, 78. ARBITRATORS. See Referees, Rrference.s. action not to be brought against, 384. costs, power of, voluntary references, 71. " " compulsory " 74. appointment of new arbitrator or umpire (0. L. P. s. 215), 91, 92. evidence 1 cftt :, 384. failure of one party to appoint, after notice, procedure, 92. order, ;»?«'>-• sions implied in order of reference, 385, 386. powers, 385. production before, 385. special case stated, by, 54, 73, 86, 87. substitution of new arbitrator by a party, 92. umpire, appointment of, 92. " when he may act, 94. INDEX. ASSESSORS. See Krfkken<;k, Thiai.. aid of, may he called in, G.'i. remuneration of, ((5. ASSKSSMKXT OK DA.MAOKS. action for detention of goods, etc., non appearuiicc, '.'08. former practice as to, 209. ASSIGNMKNT OF DKBTS AND CHOSKS IN ACTION, rights of debtor, 20. Imperial Act as to, 2(J. Ontario Statute as to, 27. what may be assigned and how, 2G. ASSIZES, commissioners, 43, 128. entry for trial, 4(K). entry of tindings and directions as to judgment. 407 . notice of trial for, 3!)4, 398. to be held in every county town, 03. statutory provisions as to, 128-130. ATTACHMENT. And see Execution. Common Law rule adopted, 408. costs of, 407, 470. disobedience to orders for discovery, 380. effect of writ of, 407. enforcing judgment other than for payment of money by, 4.55. form of writ, 094. interlocutory order enforoed by, 470. leave to issue necessary, 408. Member of Parliament, 470. notice of motion for, 408. service on solicitor >vhen sufficient, 409. pending causes in, 470. person out of jurisdiction, 470. referees cannot enforce orders by, 408. service of order to be obeyed, 409. solicitor neglecting duty as to discovery, 381. not entering appearance, 199. proceedings thereon, 199. ATTACHMENT OF DEBTS, 470, 484. See Executiqv ATTORNEYS. And see Solicitors. to be solicitors of Supreme Court, 120. AUDITA QUERELA, abolished, 405. application in lieu of, 405. former practice as to, 405. •33 m W , 1 Mf, ; i 1 734 ONTARIO JUDICATURE ACT, 1881. li 1 i AWARD. See. Arbitrations, Arbitrators, Reference, Submission. enforcing, by motion, 85, 324. to what Court, 80. procedure upor., S2-8o liow awards may be enforced, 86. publication of, what is, 83. under Railway Act, 79. BILLS OF EXCEPTIONS, abolished, 559. BILL OF SALE, equitable rights enforced, 41. BILLS OF EXCHANGE, who may be joined as defendants in action on, 233. BONDS. See Accountant, Costs, Security for. BY-LAWS, MUNICIPAL, motions to arrest, practice, 158. power of Court of Appeal, 13. BUSINESS, DISTRIBUTION OF LEGAL, 30-42. CAPIAS, WRIT OF, CASE. And nee Special Case. may not be reserved for Divisional Court, 48. stated by referee, 409. CAUSE. And see Action. CAUSE OF ACTION. joinder. See Joinder of Causes op Action. meaning of, 269. CHAMBERS. aillJavits, filing in, 507. appeal from, 508, 509. Master in Chambers or County Court Judge, 521. by motion, S22, 523. time for, 522, 523. Court of Appeal, to, 54. Divisional Court, to, 508. by motion, 508. time for, 508. enlarging time for, 509. fresh evidence on, 509. Judge to, from Master in Chambers or Co. Ct. Judge, 621. time expiring on Sunday, 551. applications at. on notice in Toronto, 507. summons by, in outer counties, 507} 520. I- INDEX. CHAMBERS— (ConiJMMfc/). County Court Judges, appeal from, 521. by motion, 521. extending time for, 522. no stay of proceedings, 522, time for, 521. jurisdiction in High Court, 517, 519. reference to Judge of High Court by, 521. discharge of orders made in, 54. jurisdiction of Judge in, 8, 517, 519. Master in Chambers. And .iee Jlrisdiction, appeal from, to judge, 522. by motion, 521. discretion, in matters of, 523. extending time for, 521. no stay of proceedings, 522. setting down in Chy. Div., 523. time for, 521. jurisdiction of, 107-9, 516. reference to Judge by, 521 . notice of motion in, forms of, 621. And sef Forms. orders in, form of, 507, 508, 666. " " CHANCELLOR, extraordinary powers and duties of, 7. office retained, 3. President of Chancery Division, 4. CHANCERY. See Court of Chancery. CHANCERY DIVISION, causes pending in Court of Chancery assigned to, 45. officers of Ct. of Chy. attached to, 104. President of, 4. Chancery Orders, certain, to apply to all Divisions, 138. And see Chy. Orders. CHANCERY OliDERS, No. 33-36 (Deputy Registrars.) 511. 38, {Pnecipe Decrees, Foreclosure, &c)., 212. 68, (Parties) 246, 247. 59-60, ( do ) 247. 61 ( do ) 248. 91, 92 (Service on Corporations), 187. 93, 94 (Service out of Jurisdiction), 189, 190. 138-140 (Examination of Parties), 359, 141 d© 360. 736 ) r: II i i i iill W 736 ONTARIO JUDICATURE ACT, 1881. CHANCERY ORDFAiS— (Continued). No. 142-147 (Examination of Parties) 361. 14S «lo 3G2. 197 (Business in Chambers), 109, 110. 219-220 (Master's Office, Sales), 440-3. 288-290 (Attachment anil Sequestration), 46G. 292 (Se(iuestration), 452. 293 do 468. 310-313 (Revision of Costs), ;)42. 374-378 (Master's Office, Sales), 444. 379-386 «lo 445. 387-390 do 446. 391-397 do 447. 408 (Vacation), 553. 432-433 (Pmcyje Decrees), 212. 434-435 do 213. 464 (Delivery of possession), 454. 467-487 (Administration), 138, 150. 560 (Referee in Chambers), 110. 589 (Administration), 150, 610-612 ((iuardians ad litem), 183, 184. .638-639 (Administration), 151-152. 640-643 (Partition), 153-156. 644 (Administration, &c., 158. 645-647 (Mortgage Suits), 213, 214. 648 (Pntcipe Decrees by Dep. Reg.), 214. 649 (Decrees Absolute), 158, 650 (Filing Papers), 158. CHANCE OF PARTIES BY DEATH, &c. See Abatement, Parties. CHATTEL MORTGAGE. See Bill of Sale. CHATTELS, action for detention of, non-appearance, practice, 208. action for specific delivery of, ' non-appearance, practice, 209. CHIEF JUSTICE OF COMMON PLEAS, extraordinary powers and duties of, 7. office retained, 3. President of Common Pleas Division, 4. CHIEF JUSTICE OF ONTARIO. extraordinary powers and duties of, 7. CHIEF JUSTICE OF QUEEN'S BENCH, extraordinary powers and duties of, 7, office retained, 3. President of Queen's Bench Division, 4, fe:; ' INDEX. 737 ENT, PaETIES. CHOSE IN ACTION, assignee of, may sue without joining assignor, 247. assignment of, 26, 27. CIRCUIT. See Assizes. statutory provisions as to, 128, 130. existing authority as to, not affected, 128. CLERICAL ERRORS IN JUDGMENTS, &c., amending, 449. CLERK OF CROWN AND PLEAS, authority of, lOG. " And see Master in Chambers. CLERK OF PROCESS need not sign writs from Ch. D., 171. CLOSE OF PLEADINGS. See Plkading. CO-DEFENDANTS, relief between, 17. COLONIAL GOVERNMENT, service of writ on, 188. COMMENCEMENT, of Act, 2. of rules of Court, 98. COMMISSIONS, existing, remain in force, 104. COMMISSIONS OF ASSIZE, AND OTHER COMMISSIONS 4S 44 4ft i.>r And see Assizes, Circuit. COMMISSIONERS, for taking evidence abroad. See Evidence. for taking oaths, affidavits and recognizances. existing, continued as officers of High Court, 120. COMMISSIONERS OF ASSIZE, constitute Court of High Court, 44, 48. how appointed, 43. pov/ers and duties of, 44, 48. ' saving as to existing, 128. COMMON PLEAS DIVISION, officers of Court of Common Pleas attached to, 104. pending business in Court of Common Pleas assigned to, 45. President of, 4. COMPANY. -See Corporation. CONCURRENT WRITS. .5ee Writ of Summons. CONDUCT OF CAUSE, in administration actions, 143, 247. CONDUCT OF SALE, 247. * trustees to have, if property vested in them, 503. 47 '\h ! « 1 ■ • I r J » ? ii (•:i 73^ ONTAIUO JUDICATUHE ACT, 1881, COIN FESSION OF DEFENCE, arising after action brought, 305. torin of. Stii FoKMS. CONFLICT OF liULES, (^animou Law and e(iuita1)le, 23, 4L eijuitable, generally prevail, in cases of, 41, 51, 59. removal of, between law anil ei^uity, 23, 41. CONSENT ORDER, no appeal without leave, 51. when discharged ou application of one of partie?, 508. CONSOLIDATION OF ACTIONS, 494-497. And see Transfeu. by one plaintiff against same defendant, 435, 496. several defendants, 495. liy several plaintiffs against same defendant, 495, 496. etiect of, 496. how and when applied for, 494. re-opening order for, 496. practice as to, 21, 496. CONSTITUTION AND JUDGES OF SUPREME COURT, 2-7. CONTEMPT OF COURT, api)eal from order as to, 55. disobedience to order as to documents, 126, for non-payment of money abolished, 467. CONTRACT, denial of. See Pleading. equitable rule as to stipulations not of essence of, prevails, 28. prima facie liability under ; interim preservation of property, 498. rescission of, false representation, 25, CONTRIBUTION, defendant claiming from third party, 17, 256-266, COPIES of documents, taking, 537. CORPORATION'. And 6W Company. attachment of debts and examination of oificers of, by judgment creditor 472. service of writ on, 186. foreign, 187. COSTS, 523, et seq. abandoned motion, 539, » administration, when out of estate, 141. commission in lieu of, 156, admissions, failure to make, 312, affidavits unnecessarily diffuse, 412. against unsuccessful plaintiffs, 227. " plaintiffs improperly joined, 227. B I 'V, t dgment creditor, INDEX. CO^TS—{CoiiHiHU'd). anr^ndment pending demurrer, 339. appeal. 5Vr Appeal, Court ok Appkai,. appeal for, does not lie without leave, 51. ' unless question of principle involved, 51, 52. attachment, writ of, 4(57, 470. asking for, on motion, 4(38. attachment of debts, discretion of .Judge, 482. third person claiming under garnishee order, 482, 483. balance in favour of defendant on set-off, 529, claim and counter-claim, both dismissed, 529. both successful, 529. claimed on writ of summons, taxation of, 168. commissions to take evidence, 544. copies of documents, 537. counter-claim successful, 52[). " dismissed, 529. County Court, in actions within competence of, 527, 528, 530. Court of Appeal, powers as to, 14. Court no jurisdiction, 505, 567. defendant, payment to by co-defendant, 526. defendants successful against some plaintiffs, 231. plaintiffs improperly joined, 227. some defendants successful, 232. demurrer, allowed, 339. frivolous, 334, 336. over-ruled, 339. pleading amended pending, 339. discontinuance by plaintiff, 319. discretion of Court as to, 51, 52, 623. appeal, 51, 52, 524. application "at the trial" to disallow, 523, 525, extent of, 52(5. trial by jury, 52-3. trustee, mortgagee, ifcc, 52:^, 524. Divisional Court, jurisdiction as to, 525. Division Court, in .actions within competence of, 527. dismissal of action, whether power to order defendant to pay, 526. equitable rules as to in suits by trustee, mortgagee, etc., 523.' ex parte motion, on, 504. facts improperly denied, 312, 313. follow event, unless disallowed on application " at trial," 523, 525. " event," how construed, 528, to Divisional Court, 525. 739 .H ' ^ ! 740 ONTARIO JUDICATURE ACT, 1881. COSTS— (Continued). follow event, ifec. — [contiwted), to Judge, 523, 5*25, when (vpplicntion " at trial " mii&t be made, 554. former practice as to, 5-lrt. when to apply, 546. inspection of documents, S77. interest on, 461. interpleader proceedings. 136, 137, 138. jurisdiction, where no, 540, 667. mortgages, costs of, old rule preserved, 523. issues, plaintiff succeeding as to some only, 528. lower scale of, 528, 530. misjoinder of plaintiffs, defendant entitled to costs, 227. motion for judgment when prceiipc decree possible, 215. next friend, against personally, 237. notice of motion, abandoned or invalid, 505. of proving documents not admitted, 382. order as to, when appealable, 61. of the day, side bar rule for, no longer necessary, 98. partition^ commission in lieu of, 156. apportionment of, 157. unnecessarj' proceedings, 158. payment into Court, on, 351, 528, 529. petition, tender of costs of perusing, 638 plaintiffs improperly joined, 227, 230. some only successful, 230. successful against only some defendants, 232. successful on some issues only, 528. on confession of defence arising after action brought, 305. production of documents, 377. prolix indorsement of writ, 160. " pleadings, 277, 278. • ' reference, costs of, what included, 73, references, voluntary, 71. compulsory under 0. L. P. Act, 72, 73. And see Reference. revision of, 541. right to, out of particular estate, 523, 530. saving as to former practice, 546, 547. scales of costs, 528, 530. common law claims, 528. equitable demands, 530, 575. judgment entered without trial or order as to costs, 531, 575. aecurity ior, amouut of, 534. appeal od, 698. '■ if INDEX. C0i>T6—{Co}i(inHed). security for — {eontlnued). bond for, 535, 536. ■' " to be taken in name of Accountant, 562. contestant in quieting title matters, 535. counterclaims, on, 585. defendant wuivinjif right to, 535. dismissing action for default in givina:, 537. discharging order, 533, future costs, for, 534. grounds for, another action pending abroad, 534. " " c )3t3 of, unpaid, 534. ej 'Ctment, successive a'jtioiis of, 534, false statement of residence, 53'2. insolvent (under Insolvent Act) suing, 533. nominal plaintiff, 533. residence out of jurisdiction, 532, 53i). some plaintiffs only abroad, 532. temporary residence al)ro:id, 532. increasing, 532. indorsement of residence on writ, 536. interpleader, in, 535. married woman, by, 237, 238. past costs, 534. payment into Court, in lieu of, 536. poverty no ground alone for ordering, 533. praecipe order for, 536. property within jurisdiction, 533. replevin, 535. time for applying, 632. set-off, where defendant succeeds on defence of, 638, setting aside nonsuit, 442. several defendants in same interest, 199. setting off costs, 639, signing judgment for on discontinuance, 316, 319. statement of claim unnecessarily delivered, 309. statute, proceedings under a, 524. • taxation of copies of documents, takinc:, 537. costs claimed on writ of summons, 168. counsel fees, appeals as to, 549. disallowance of costs of unnecessar}' proceedings, 538. discretion of taxing master, 549. general powers of taxing masters, 51(>. neglect to bring in bill for, 544. 741 'III: -If m ! ! I ' « 'i i {■■ 742 ONTARIO JUDICATtrUE ACT, lc8l. o !;). COSTS— i Continued). taxation of — (continued). objections to, 547, 5-18. parties to attend, 543. party and l>arty helsvoen, ri41, review of, by a Judge, 519. evidence on, 649. review of, by taxini^ officer, r)48. evidence on, 54S, 549. revision of taxations by lociil officers, r)41, 542. at option of a party, 541, costs payable «ut of an e-tato, 541. execution pending, 543. proceedings on, 543. solicitor's bill, directions in order for taxation, order for, on 2J)'fecipe when, 546. tariff of, 586, 592. taxing officers, powers of, 540. tojbe subject to supervision of Judges, 54T. tender on service of petition, to avoid costs of a party's appearin:^', 5,'i8. trial by jury and no order of Judge, scale of, 528, 575. unnecessary appearance at Chambers, of, 5.38, 540. " proceedings, 538. writ in action for liquidated demand not specially endorsed, L^07, -08. COUNCIL OF JUDGES, duties of, 102. held annually, 102. report of, 103. COUNTER-CLAIM. See Pleadino. COUNTY COURT. And nee Inferior Courts, appeals from. See Appeal. clerk of, not to draw or advise on certain documents, 114. offices of, when to be open, 581. to be Deputy Registrar, when. 111. costs iu suits within the competence of, 527. , " where no jurisdiction, 567. counter-claims in, 122. interpleader issues, when tried by, 137. injunctions in, 122, 497. Judges, jurisdiction of, to be similar to High Court, 122. but existing machinery retained, 122. jurisdiction in Chambers, 517, 520. in interpleader matters, 136, 137. appearing, 538. Ed, 1.^07, 208. INDEX. COUNTY COURT— (Continued). Judge — {continued), local Judges of High Court, 121. mandamus, 497. powers of, 122. procedure in, assimilated to that of High Court", .')(58. sittings of, how regulated, 566, 567. Terms abolished, 566. Vacations in, 581. COUNTY COURT JUDGES. Sue Cuambers. Surrogate fees of, may be commuted, 125. disposition of, if not commuted, 125. must act on reference, 74. fees of, 75. not to order examinations or references before themselves. to be Local Judges of High Court, 122. to be Local Masters, 111. who may be appointed, 121. COURTS, construction of prior statutes affecting, \Q\\. COURT OF APPEAL. And nee Appeal. additional Judges may be summoned from Higli Court, hi. ad hoc Judges, how chosen, 6. assessors, may call in, 65. Chambers, appeals from, 54. conflicting evidence, 13, 14. costs of appeal, practice, 14, Court of Record, 12. disqualification to sit, when, 6. Divisions, may sit in two, 57. Divisional Courts of, 57, 58 existing continued, 5. • former jurisdiction enlarged by Act, 12. further evidence may be given, 18. High Court Judges may sit in, 57. , limitation of appeals to, 52. 5'!, has all powers of High Court, 14. iiow constituted, 5. interim directions or orders by Judge of, 57. Judges, ex officio, 5. may sit in High Court, when, 56. oath of, 6. of High Court, may s-it in, 57. single, power of, 57. 713 586. I r 744 ONTARIO JUDJCATURK ACT, 1881. COURT OF APPEAL— (Co7i<»(««(/). Judges — (continved). vacancies, provision as to, 6. jurisdiction, 11, 12, 1«. See that Title. motion to set aside or vory judgment, 431, powers of, 12, 14. rules as to jurisdiction, etc., 14. as to appeals, who may make, 101. practice under. .SVe Appeal COURT HOUSES, Inspection of. lol. R. 8. O. c. 224, S3, 19-24, applied to, 131. COURT OF CHANCERY. And see Chancery Division. causes pending in, assigned to Chancery Division, 45. duties of officers continued, 105. infants, rules as to custody and education of, 38. officers attached to Chancery Division, 106. COURT OF COMMON PLEAS. And see Ciianckry Division. identitied with C. P. Division, 3, jurisdiction, 2. officers of, attached to C. P. Division, 105. pending business assigned to Common Pleas Division, 45 COURT OF QUEEN'S BENCH, identified with Q. B. Division, 3. jurisdiction, 2. officers of. attached to Q. B. Division, 105. pending business assigned to Queen's Bench Division, 45, CRIM[NALPROCr:El>INft,S. 131. practice and procedure unaltered, 565. cro.ss action, instead of counter-claim, 18, CROWN SIDE OF Q. B.. on C. P. DIVISIONS, proceedings in not affected, 121, 566. DAMAGES. assessment of, 208, in action for land, 209, forms of pleadings in actions for, G42, et neq, DEBTS, assignment of. See Chose in Action, notice of conflicting claims. See Chose in Action DECREES, to be absolute in first instance, 168. to be entered by Local Masters, 158. DECEASED PARTIES, appointment of representative of, 235. See Abatement, Parties, INDEX. 745 DEFAULT. appeorance, account, notion for, 225. administratt'on, action for. pnerijie ilecroe, 210. affidavit of service, or undertiiltin^ to enter appeftmnce necessary, 205. by infant, practice upon, 204. lunatic, practice upon, 203, 204. third party served witii notice, 202. chattels, specific delivery of, action for, 20'.>. damages, inquiry as to, 208. detention of goods, action for, 208. foreclosure, ifec, suits, 210, 215. judgment against some defendants, 207. by, when appearance entered in fact, 200. where writ not specially indorsed, 207. where writ specially indorsed, 205. particulars of claim, when necessurj', 207. costs of, 2U7. posting up notice of motion, 202. pleadings, 292. signing judgment, 205, 207. specially endorsed writ, 205, 2i)7. specific delivery of chattels practice, 20U. at trial, 402 delivery of claim, .341. delivery of defence or demurrer, action of debt, ttc, 343. action to recover land, 346. mesne profits, 346. claim for detention of goods or unliquidated damages, 344. final judgment, 344, 345. against defaulting defendants only, 844. effect of enforcing against defaulter, 344. interlocutory judgment, 223. against defaulting dofenduuts only, 344. assessment of damages, 345. liquidated demand, 343. liquidated and unliquidated demand, 345. motion for judgment, when necessary, 356 against defaulting and other defendii'.s at same time, 347. several defendants, some making default, 344, 345, 347. effect of execution for costs against defaulter, 344. delivery of pleadings by third parties, motion for judgment, 347. dismissal for want of prosecution, 341. :s ;{ i 1 J 1 1\ 746 OJfTARIO JUDICATUUE ACT, 1881. i DEF \ULT—{OoHlinHsd). (Uamissal for — {continned). pleadings deemed closed, 821. setting down for trial, 394. filing of affidavit on production in, HU, :i8 >. giving notice of trial, 394. judgment by, sotting aside, 347. land, action to recover, effect of non appearance or appearance for pint only, JO'.t. mortgage suits, 211, B77, motion for judgment when necessary, '21 " " " where to be made, 21 M. prcedpe decree for foreclosure, sale or redemplion, 2 In. partition, action for prmcipe decree, 210. DEFAULT OF PLBADING, 841-348. And m Dkk.xiii.t. DEFENCE. See Pleading. DEFENDANT, definition of, 132 issuing process in person, lti9. who may be. S>e Parties. DELIVERY. See Plkadino, DEPOSITIONS. See Evidenck. DEPUTY CLERKS OF THE CROWN, 112, 51 fees to be taken by, 112. commutation of, 1 12. not to be taken, when, 111. ofiico to be united with Deputy Registrar, 112, powers and duties, 610-513. seal of, 96. DEPUTY REGISTRARS, 112, 510-11. appointment and tenure of office, 112. books to be kept by, 311. County Court Clerks to be, when, 112. fees on reference, 112. not to be taken when, 111. commutation of, 1 1 2. office to be united with Deputy Clerk of Crown, 1 12. powers and duties, 510 513. seal of, 9ft. to enter their decrees and orders, 168. " transmit papers to Clerk of Records and Writs, loS. DISCLOSURE BY SOLICITORS AND PLAINTIFFS, 174. ^"TH INDEX. 747 DISCONTINUANCE, 31eV:;i«. by leave, 317, 318. costs on, 31 fi. defendnnt may sii,'n jiultfmunt for, 316, 31'.». not in discretion of Court, 317. what taxable, 317. effect of, 317. none on counter-claim, 317. former practice as to, 316. form of, 817, 629. no defence to subsequent action, 316. time for, 316. . , whole or partial, 31H. without leave, " DISCOVERY AND INSPRCTION. See DocuME.NTs, Exa.misatio.n of Partiks bekorb Tkiai.. at what stage, 363, 37r). right to in ejectment, 358. not enlarged by Judicature Act, 366. protection from, form of affidavit claiming, 374, 375. not privileged, communications witli unprofessional agents, :;7'. " between solicitor and third ptrson, ante litem motam, 373. " between solicitor and client, of collateral matters, 373, not confidential, 373. not in professional character, 373. privileged, communications between solicitor and client, 372. between solicitor and third person, when, 373. documents held in different character from that in which sued, 371. " irrelevant to trial, 370, " involving in a criminal chwrge, 3n». " relating to party's own case, 369. mortgagees deeds, 371. muniments of title, 370. public policy on grounds of, 369. third person interested, 371. DISMISSAL, for want of prosecution. default in delivering claim, 341, 342, .554. giving notice of trial, 394. disobedience to order for discovery, 380. fii iJ 748 ONTARIO JUDICATURE ACT, 1881. DISMISS AL—( CoMftwMetZ). non-appearance at trial, 402. practice as to, 41, 654, 655. DISTRIBUTION OF BUSINESS, among Divisions of High Court, 44, 46. DIVISION, all proceedings in an action to be in same Division, 45. marking pleadings with name of, 45. plaintiff may choose, 45, 159. transfer from one to another, 46. And see Transfkr. DIVISIONAL AND OTHER COURTS. See Divisional Court. DIVISIONAL COURT, appeals from Judge in Chamber.^ to, 521, 658. application lor new trial, 558. cases and points not to be reserved for, 48. causes and matters to be heard by, 49. Chancery Division, sittings of, 563, 564, 578. setting down motions before, 482, 578. consent applications to, 558. difference of opinion, English practice, 49. every High Court Judge may sit in any, 49, 658. and shall do so, when, 5ses. tfn bene esue, 413, 414. exclusion of witnesses from Court, 411. of persons from examiner's office, 354. examiner, before. .Sv- Depositions, supra, and Ex.VMtXArroy of Parties, post. experiments for obtaining, 49!). fresh for judges' own satisfaction, 40G. on appeals, 50!). where party taken by surprise, 404. mistake, not given owing to, 404. motion, on athdavits, 411. oral, at trial, 409, 410. petition, on, 411. preliminary examination of parties. Sta Examinatiox of Parties BEFORU Trial. referees, before, 408. surprise, not given oMing to, 404, 405. viva voce, usual mode of taking, 409. EXAMINATION OF PARTIES BEFORE TRIAL, adjournment sinn din, re-service and payment necessary, ,350. attachment for non-attendance, or refusal to answer, 357. co-defendant, by, 354. corporation, of officers of, 354, 355, 360. agent of bank, 355. engine driver, 355. engineer, 355. ex-officers, 355, 367. several officers, 355, station master, 355. sub-editor, 355. . default in attending, 356, 357. demurrer by witness, 357. depositions admissible in evidence, 358, 360' part may be read, 381. documents, production of, on, 357, 360. exclusion of others than the party under examination, 354. failure of examining party to attend, 356. former practice still in force, 352, under Chancery Orders, 352, 353, 359, 36 ). under C. L. P. Act, 352-359. information, what may be elicited, 354. interpleader, in, 354. married women, 354. notice of examination, length of, 356. difl'erence between Chy. and C. L. practice in this respect, 356. non-attendance, 357. attachment for, 357. dismissal of action for, 359, 360. striking out defence for, 359, 360. officers of corporations. See Corporation, 357. parties out of the jurisdiction, 356, 359 . in Province of Quebec, 356. place of, 356. production of documents on, 357, 360. public, exclusion of, 354. report by officer examining, 358. second examination only under special circumstances, 354. short-hand, right to have taken in, 358, 36L third party, 365. who may be examined, adverse party, 354, 359. co-defendant, 354. married woman, 354. officers of corporations, 354, 355, 360. person for whose benefit a suit is brought, 359, 366. third parties, 365. EXAMINER. See Evidence, Examination of Parties. EXCEPTIONS FROM OPERATION OF RULES OF SUPREME COURT, 563. EXECUTION, against stranger to action, 465. attachment, writ of, 467. attachment of debts, accruing debts, 475. application ex parte, 475, INDEX. 756 'REME COURT, EXECVTJO^— (Continued). attachment of debts — [cuntinuad). claims by third persons, 483. costs in discretion of Judge, 484. death of garnishee, 479. debt attachment book, 484. debts attachable, dividends, 478. equitable debts, if due, 476. executor, due testator's estate on judgment against, 478. money duo under contract, 479. money in hands of banker, 479. bailiff, 477. agent of foreign corporation, 478. Division Court Clerk, 477. mortgagee after sale, 477. official li(iuidator, 476. receiver, 476, 477. sheriff, 477. pensions, 478. rents by tenants, 478. to mortgagor, 477. salary overdue, 477. unascertained debts if payable as soon as ascertained, 478. debts not attachable, assigned debt, 479. conditional debt, 477. executor, debt due to, as such, 479. income of trust funds subject to restraint on anticipation, 479. juror's allowance, 479. pensions, 478. promissory note not due, 479. salary not payable, 479. unliquidated damages, 478. wages, up to ^25, 479. discharge of garnishee by payment, 480. eflfect of service of garnishee order, 480. on solicitor's lien, 480. equitable debts, 476. examination of judgment debtor, 470. compelling attendance, 473, 474. conduct money, 473. costs, 484. service of, appointment for, 473. unsatisfactory answers, 474, 475. examination of officer of corporation, 474. 756 ONTARIO JUDICATURE ACT, 1881. EKEGVTIO^— (Continued). attachment of debts — (continued). garnishee disputing liability, 4S2. execution against, if case is plain, 482. issue may be directed, 482. special case to try liability, 482. judgment debtor, what the term includes, 471. examination of, 470. See .•iupra, lien of solicitor, effect on, 480. paid into Court, 480. order lor, how obtained, 475. takes effect from service, 480. payment into Court, where judgment for, 471. payment by garnishee discharges him, 4811. priority of attaching creditors, 481 . service of garnishee order, 480. set-off by garnishee, against judgment creditor, not investigated, 480. judgment debtor allowed to, 480. test of debt being attachable, 477. third person claiming, 483. barring claim of, 483. costs, 483. trial of issues, 483. non-appearance of, 483. trial of issues wlien garnisliee disputes liability, 482. trust money in garnishee's hands, 483. by person not a party, 4i5G. conditional judgment, 450. leave to issue, when granted, 450. currency of writ, 402. delivery, writ of (chattels), 486. form of, 693. enforcing performance of an act, 455. orders of a Judge, 464. equitable execution, 452. by sale of equitable interests, 453. by appointment of receiver, 453. existing riglits of execution creditors saved, 405. fieri faciciH, 451, 466. effect of, 466. money or costs for, 450. when may issue, 461. writ of venditioni exponas in aid of, 451, 467 immediate, when, 461, 462. interest levied, 461. INDEX. 767 EXECUTION— (Co«'2(). money claims generally, (Ul, 613. on order adding or changing parties under Ord. 44. tMH. judgment, 081-690. administration (Local Master), (1S9. after ueceptance of money paid into Court. f'Stt. after cor'ession of defence, 686. after leave to defend on conditions, 68.5. after leave to sign judgment (Rule 80), 682. certificate of County Court Clerk, on, i'<8'>. default of appearance, action to recover land, 681. after assessment of damages, 68.S. liquidated demand, 081. signing for costs, on dinoontinuance, 085. default of defence, action to recover land, 682. after assessment of damages, 682. 683. liquidated demand, 681. discontinuance, for costs on, 685. foreclosure or sale, 687. motion for, after trial of issue, 686. partition or sale, Oyit. redemption, 688. trial by judge alone, 683. by judge and jury. 683. by referee, 684. landlord, pleadings in action by, against tenant. 650-G.52. mortgage suits, 019, 020. on order changing parties under 0. 44, 025. special (under 0. 3, R. 4), 017, 018. motion, notice of, 021 negligence, pleadings in action for, 646. notice, acceptance of sum paid into court, d2ti. cross-examination of deponont at • al on attidavit. 629'. defendant, by, to third pav discontinuance of action, • disputing amount of claim, iS. documents, to admit, 627. to inspect, 627. to produce, 627. entry of appearance, 623. INDEX. 761 TO'R^l^— (Continued). notice — (cniifirined). entry of fh'murrer for aryumont, 629, in lion of sorvico of writ, 610. statement of claim, 624, limited appearance, of, 202. limitintj defence, 623. of motion to Court, 621. in Chambers, 621. for administration order, 622. payment into C!ourt of, G^r*. renewal of writ of execution, G.3<)1 third party, to, 024, trial of, G21). oath of commissioner for taking evidence, 063, clerk oi" commissioner, 06.3, interpreter, 003. witness, 003. order, alloAving service etfectcd out of jurisdiction, 007. amend, to, 0(>9. attaching del)t, 075, (•"Vtiorari, 072. commission to examine witness, 073. County Court, to try action in, 070, discharge order on application of third party, 07 1 . dismissing, action for w.'.nt of prosecution, 67 !• motion, 081. examination of witnesses before trial, 074. garnishee (attaching debt), 675, (absolute), 075. inspection of documents, 072. interpleader, 077-080, judgment debtor, examination of, 076. leave to defend on payment into Court, 668. defend as to part of claim, 669. serve out of the jurisdiction, 666, sign judgment on specially indorsed writ^ 668. names of partners, 609. particulars, 070. partners, disclosure of names, 069, production, 671, reference (Rule 244), 672. (section 47), 673. (section 48), 674. ;' . V' 762 ONTARIO ./UDICATURE ACT, 1^81. FORMS— {Contimml). order — (continued). reference to Master, 674. renewal of writ of summons, 667. service out of jurisdiction, 666. substitutional service, 666. taxation of solicitor's bill, 676. third party to discharge, 671. time, further, 667. trial of action in County Cburt, 67H. partnership account, form of indorsement for, 6)9. payment into Court in satisfaction, 626. notice of acceptance in satisfaction, 626 ; pleading, account stated, 633. administration, 634, 636. agency del credere. 636. assault, 647. bill of exchange, 638, 641. - and consideration, 641. confession of defence, 624. del credere agency, 636. demurrer, 654. false inprisonment, 642. fraud, 644. guarantee, 645. land, recovery of, 652. landlord and tenant, 650, 652. negligence, 646, 648. promifaory note, 639. reply, 639, 641, 648, 649, 652. statement of claim, 633-653. notice in lieu of, 624. statement of defence, 636-652. trp\-».*8s to land, 553. iprohibition, writ of, 665. promisaory notes, pleadings in action on, 639. praecipe, amend summons, 654. commission to examine witnesses, 658. •entry of appeal, 658. action for trial, 658. appearance, general, 655. limiting defence, 655. new defendant, 655. INDEX. 763 FOBMS—iCotitinned). prsecipe — {contimietf). entry, appearance, third party, 65G. to counter-claim, G56. argument (generally), 657. demurrer for argument, 657. special case, 657. renew summons, 65.t. search. 667. prescribed, use of, .166. representative capacity of parties, 618. redemption, indorsement for, 620. specific performance, indorsement for, (520. special, account, where executorship, partnership, or trust claimed, 61!). administration, for, 619. f^ubpoena, arf' witness, 695. attachment, 694. sequestration, 694. venditioni, exponas, 692. writ of attachment, 660, 664. certiorari, 657, 664, 665. delivery (chattels). 060, 693, 694. fieri facias, 668, 691. habeas corpus ad testificandum, 644. 658. mandamus, 666. po8: *ssion, 659, 69;i. proh .bition, 656, 665. sequestration, 659, 694. writ of summcms, 93, 609. concurrent, indorsement, 95, 611. character of parties, 61b. costs, for, 613. damages and other claims, 618-617. general, for money claims, 611-6I;<. in actions formerly brought in Equity, 619, «'io. special, (under Ord. 3. R. 4), 617, 618. r ' ; 1 ii if 764 ONTARIO JUDICATURE ACT, 18S1. writ of — {continued). iiutice in lieu of, for service on foreigner, 610, prai.ipe for amendment, 654. renewal, 655. lodemption claim, for, G20. :;.:::.nt. ISSUE, form of and parties to, 1.S7. trial of in (,-ounty C^»urt, when, 137. jurisdicti(ju of County Judge iu, 130. jury notice in, when to be served, 137. motions for new trial, etc. , when to be made. 1 37. when pleailings at, 321, 322. ISSUES OF FACT. And tite Motion *"oij Judcjmkn r, Tia.vL, IIkkkiiknie. directing on motion for judgment, 435. motion for judgment before all detennined, 435. preliminary trial of, 396. settlement of, 322. trial of, on application to cuiorce conditional judgniuiit, 43i)-7. by official referees, 04, 07. JOINDER OF CAUSES OF ACTION, 208. ciction to recover land, 271. action to establish title is not, 27 1 . administration with, 271, 272. arrears of rent, 271. execution of deed, 272. foreclosure action, seems not to be a, 27 1 , 272. leave to join other claims witli, 271. mesne profits, 271. mortgages, claims respecting, 271. personal estate comprised in same deed, 272. receiver, 272. recovery of deed, 272, specific performance of contract to purchase, or iu default possciSHion, 272. trespass and injunction, 272. allowed generally, 268. alternative claims, 270. against different defendants, 234. inconsistent against same defendant, 210. application to contiue action to certain claims, 274. assignee in insolvency, 273. INDKX. 771 llKtKllK.NtE. et:uilt posse:$8ion, JOINDER OF CAUSKS OF ACTION -{Coiifniu^f/). contract broken by inintijml and agent, 270. counterclaim subject to same rules as claim, 27*2. distinct against same defendant, 270. separate defendants. 270. effect of new provisions considered, 200. embarrassing claims, 270. excluding claims inconveniently joined, 270, 274. executors, etc., claims by or against, 27'^. , foreclosure, 271, 272. former practice as to, Chancery, 268. Common Law, 2<)S>, how limite.l, 2«.'{. and copy of affidavit, 2 Hi. practice before Judiciitun; Act. striking out false pleas, 2l(i. production may l>e ordered. 224. staying execution pending apiieal, 221. special indorsenient.s sufHciiiit, insniticient. .SV^ Indoiiskmknt ni-' Whit. technical defects in writ, no answer, time for moving, 218, 219. application to sign, in vacation, '>(J4. l)alance on successful counter-claim. 278, 2H7, .'{I'). certilicates of Judge at trial to lie entered hy llegi.ntr^r. 4. when to be entered, 200. default of pleading. And .iff. r>Ei>'Ari.i. action t(j recover land, ;^46. against defaulting defendants only, .t4.'>. final and interlocutory, .344. setting aside, ,347. discontinuance, on, 310, 3l!l. enforcing. .SVc Execttion. entry of, after tri.vl, 40"), 407. at trial, 405. date of, when not pronounced in (Jourt, 441. when pronounced in (!^ourt, 441. Deputy Registrars and Deputy Clerks, by, 513, ."»!.". how made by proper officer, 441, 514, .576. on production of affidavits or document'), 441. pursuant to order, 442. " " return to writ, 442. INUKX. 775 (C «( << Jl]\H'.\\VST- {Co,if!i,m',l.). entry nf — {ronthiiict(). returnH of jiulgnicnts onteivl l>y lnoal (tHicci-t, .')|."i. .'iTii eiTorH, in, corructing, 441>. ffirniH ot', 441, 450. Anil w" Kokms, JiiuiMKNT. High Cfuirt ami Court of Appeal may enforce, of foiimr Cniirtw, !'. includes decree, \H'2. interest on, 4r)!>, 460. interlocutory, action for detention of yood», non-appearanee, 'Jus. Judge, retiring, may give, 130. land, action to recover, non-appearance or limited appearance, form of, 2(J0. judgment under U. S, (). c. 57. a. 20, 210. for mesne proiita, rent, fee, 2H>. how enforced, 454. writ of T ^ss'^-ssion, 484. minutes of, varying, 449. mistakes in, correcting, 44!l. motion for. Sre Motio.n kok Ji ih;mknt. nonsuit, effect of, 442. setting aside, 442. not to be given for party unless entitled on facts proviMl, .">!». on prtecipe in action <»f foreclosure, administration, &c., 21 u. " " " evidence required, 212. •' " " who may issue, 212. partners against, 457. plaintiffs, one of several may have judgment, 227. reference uiwn, hf»w enforced, 65, 66, 60. varied, 67. reserving, 405. setting aside. And Sef Motio.v for JirmjMKNT. default, judgment by, 206, 347. lapse of time, no bar, 206. " merits " what are, 207. non-appearance at trial, 40.S. technical defences, 20<». signing for costs, on accepting payment into Court of .satisfaction, 351. on discontinuance, 316, 310. specially endorsed writ, against some of several defendants, 224, 225. when to be entered, 206, 211. JUDGMENT CLERKS, 510. V i JUDGMENT DEBTORS, examination of, 302. 77G ONTARIO JUDICATURE ACT, 1881. JUDICATURE ACTS, iitt'ect procedure only, 18. oummcnccment of Ontario Act, '2. confer no new rights, 18. Kngliah List of, 1, how cited, 1. Irish L{'«t of, 1. JURISDICTION, al)olition of, of former Cour^ s, 9. Chambers, .Judge in, 9. Master in. See D^Iah'iea in Chambers. Chancery Division. .See that Title. ( 'ourt of Appeal, 12. See that Title. High Court, appeals from, 12, l.S. single Judge of, •». HoS. Divisional Coiirts, 558. cases and points not to be reserved for, 48. Chambers, appeals from. Scv Appeals. High Court, !i Court of Record, 8. enforcing and discluvrgiiig judgments of former Courts, 9 ixisting Courts, jurisdiction of, vested in, 8. how to be exercised, 11. injunction. See that Title. .ludges of abolished Courts, 9, legal as well as e(iuitable rights enforced, 9. mandamus. See that Title. pending business, 10, 1 1 . receiver. See that 1 itle. Inferior Courts, 122 124. 5'<'»' that Title. And Cointv Corins, Divi- sion Courts. .ludges of. .V(-e Jl'Dge, JuDiiEs. Service, out of. See Service, Writ <»f Simmons. solicitors over, 121. JURY. And .tee Trial. addresses to, 02. and non-jury cases, lists to be separate, iVA. dispensing with, GO, 01, 02. t<|uitable issues, 02. finding wvongly entered, setting aside judgment. See Motion for Judgment. notice for, 01. patent cases, 01. trial by, application for new trial. ."?'t Motion for N'kw Trial. INDEX. 777' NTV (Vll-lilS, Divi- JURY- ~{Co)ithiufd). trial hy—{couthiued). costs follow event, 523, cf. .sv 7. S('(; Costs. in Chancery cases, 59, 01. in interpleader proceedings, 137. right to, 60, Gl. JUSTICES OF<^ THE PEACE IN NIPISSINO. v laid before, 120. LIHEL, defamatory words must be kc out, 294. LIHX. And .ic^ SoLK rr(»i:. delivery of property may l)e ordered on payment into < 'ourt, .">(»2. LO(!AL MASTERS, appointment ami tenure of office, 112. authority of, 100. (.'ounty Court Judge to be, 1 1 1 . if two County Judges, both to be. Ill, fees, may be commuted, 1 1 2, juriBdiction in Chambers, 517, 518. not to practice, when, 113. officers of Supreme Court, 105. 778 ONTAItrf» .HDMATITIIK A( T, lf*81. LOCAL MASTKUS -(Continxiil). bo reside in County, III. to enter their decrees Jiml ordeis, l.\S. to transmit paiters to ('lurk of ISeconls .iinl Writs, l.'iS. LOCAL IIKj' committee <>r guardian tul I'diui, "JT"'. dismissing action on application of lunatic claiming tn Itc .sain-. "JT'". Inspector of Asylums ti> Ite '•x-ollii'ln, l,S4. guardian (iff litem, how appointed, *J08, '2~i\. next friend, '275. party to special case, ',HH\. proceedings not to !><■ takvu till appuintmcnt of giiar>liaii >"/ litiin. where no committee, IS.'t, '21^. service, of writ on. 1 84. of notice of judgment on. 207. '-7<>. MAM>A.\1CS, app al frcun onler for, HI. any Division may grant, 'AO. application for, how an(M)-.')OI. availalde formerly only wliei-e no otiicr reniidy. .SI. County Courts in, 4J)7. discretion of ('ourt, .'{ I . Division Courts in, 4!I7. enforcing (Uulc H43), 4.'),"). English i»ractice as to, .SO, .SI. former practice as to, .SO, .SI. High (!ourt may grant interlocutory order, HI. indorsement of claim for, l.")!t. And w^ Komrs. jurisdiction of Court of Appeal, l_'. statutory provisions as to, .SO. HI. when granted under new jiractice, '2iK .SO, Hi. when to he claimed by writ, "Jit, 1. ')".•. MARRIACK. ^V*- AllATKMKNT. Ht;sHAM> AM' WlKK. MARIJIKIJ WOMEN, alimony, may sue alone for, 2.S9. suits by and against, 2H7-24H. practice before I87'i, (.S.') V., c. Ifi. nnt. i. '21^. INDKX. 779 i,'ii:ir'li,in '"/ //'/-■; MAUiUKT) W(»MKN (r,,,,/',,,,,,,/) suits by (I'oiiHiiiKil) \uu\vr Act of 1S7-*. (i;. >. <>.. ^■. 1 •_>.■). s. •_'(»), •_>:{S. might sue aloiu' in rLSjiixt I't' M|(;uatf ihuih rty. '21VJ. in ivliiuony suits, L'.'J'.t. uust'ttk!. ehan,i;ing, 'J4(). lialiility "lejiendent on iiossi-ssion of separate estate, '24'J. under .hid. Aet. '2:\', '-'40. under .Married W'omans' Aet, I MSI, •_'4I. exeeution against, ■_'4.'{. f<»rm of judgment against, *_'4"_'. service of writ iqion, hS'J. toi't. iirai/tiee in aetions of, 24.'i. MASTEK IN ClIA.MI'.KIiS. .nvm 'ii.uinF.cs. iiisdietion of. K»7-I0S. ilHcial referee mav sit for. ."il.'i. .">ltl, .")i; l> cannot order a jury under 1!. S. (»., e. 40. s. !•!•, til. MASTKli IN (HANCKUV. .-u ottieer of the Supreme (oiirt, lOo. fees of, as ottieial referee. 7'". references to, i-hanging ]>hu'r of .•1i)4. MASTEI! IN n|M)|NAi;V. jurisdiction of. 44"J-444, "i.Sti. PIASTER'S OKKIt'i:. I'lJorKl.l l;l. IN. administration. St-f that Title. mortgage suits. SW that Title. reference as to title 447. sale. Si-f that Title. MASTEJtS.-LuCAL Sr, |,.mai. M.\sTri:s. MATTKI! IN CONTKOVEllSY on ajipeal delii .d, o."!. mki{(;ei:. me of legal estate to prejudice of e(|Uitalile interest. _."). ni MISTAKES in judgments, correcting, 44!t. MONTH. ineHDs calendar moutli. .mO. M(>l{T. affidavits, filing on, 507. appeal from Chambers. S<'<' Aitkal. application, when by, 503. attachment for. .SVf ArrACH.MENT. costs of abandoned or invalid. And sir Costs, 504. where no jurisdiction, 505. where person unnecessarily served, 505. Ex partv. when allowe7".'. setting down, 4'ir), oT'J, 580. in Cliancery iJivision, procedure, VA'2, 48.S, 435. to what sittings, AX\, 4.S."). when and liow to l>e made, 4'_".t. not after one year from accrual of riglit, A'MS. notice of. when to l»e servetl, A',\'l. at any sttcge of action, liy leave, 4.SK. nuist he made to Court, 48!>. in Chancerj- Division, to what sittings of Divisional Court. 4:!;!. when issues or (jnestions of fact have hecn determined, 4S.'>. plaintiff' may set case down, wlicn, 4M3. defendant ' " 43.S. mIicu some only of the issues iia\ e been tried, any party nuiy ol)tain leave to set down, 433. dirciitions as to trial of remaining issues, 434. when evidence is, admissions in pleadings or examination of parties,, 4,sr). documentary, 435. necessary only because infants concerned, 430. MOTION 1-UK NKW TKIAL. Se,' Nk\t Trim.. MOTION ON ADMJS810N.S. Srv Motion kuu .JiixiMBsr. MOTIONS AND OTHKH AlM'LlCATloNS, 503. Sr, Motions, Oiami ii:. MULTIFAIUOUSXESS, not now an ol)jection in itself, 'im. NEGLIGENCE, forms of pleadings in ivctioi) for. .*»V^ Forms. NEW ASSK^NMENT. -SV^ Pleai.i.ncj. amendment substituted for, *2y7. former practice as to, 297. NEW TRIAL, against one defendant (mly, 427. junisdiction of Court of Appeal, 13. motion for, 423. after trial by jury, 423. argument of, how comlaeted, 42^. how made, 423, 424, 57«. Divisional Court, 423. within what timt, 424, 575*. power of ('ourt to direct issues, accounts, etc., 435. to enlarge time, 425. to give the proper judgment, 434. trial by .Judge, 422. IXDKX. 78a i' 11 asional < ' )urt. 4;!;{ ftcrmiiiei , 43.-.. 'iecl, , 433. 434. f parties, ,43.->. I, 43G. 5 NT. Lotions, I'llAMIlKI W. NEW TltlAf. (Coutiuur,/). none where no .substantial wrong or niisctirriage, 4'J»5. ou one (luestion only, 4*27. order iiImI, a stay of proceeding-s, 4'28. liling an0. default in, n<' rt^r'ipiatnt', 4'J,'), r),S(). j.art of action as to, 42(5. surprise, what aHidavits must shew, 4'J7. NEXT FiaENI). .SV< Infant. NIPISSINO, (lualirioation of .lustiees of iV'ace in, 131. NISI PRIUS. Sr<- ASSIZK. TlUAl.. practice at, 5!). NONCU.MPfdAXCK WITH lUldvS OK CorHT, effect of, ,■).")!►. NUNSriT, effect of, 44-i. etjuivalent to judgment for dcfeudant, 442. setting aside, 44'_', costs on, 442. NOT OriLTY HY STATl TH. how pleaded, 2i)!(. uo other defence allowed without leave, 300. NOTICE, acceptance of payment into < 'ourt. .SVi j-'oiiMs. ailniission of facts, of, 382. ailniit documents, to, 382. form of, 383. appeal, of. Si-e Ai'I'BAI,. appearance l)y lantUonl. .SV( Eou.M.s. cross-examination on aHidavits, 421. documents, to admit, 382-383. See. EouM.s. to inspect, 370-37U. Sei' Fokms. to produce. Si-i' Koinis. entry of dennirrer for argument, 338. .SVf Fdums. how pleaded, 29"). in lieu of service, ItMi, of writ for service out of juri.sdiction, 102. form of. Sec FoitMS. limitation of defence as to amount, 202. Set Foi;.ms. limitevn, 182. application for another guardian, 182. costs of, to be paid into Court, 115. duties of after service, 182, 204. " as to mortgages to Accountant, 562, 573. " may be tixed by Divisional Court, 115. former practice as to service u^jon, 182. may be prevented from practising, 115. Orders in Council respecting salary or commutation of, to be ratified by Legislative Assembly, 126. returns to be made by, 115. salary of, how to be lixed and paid, 1 15, amount of fixed, 582. service to be effected on, when, 182. OFFICIAL liEF£REE. .bee Referee-s, Official. ORDERS, entry of, 514, 574. by Local Masters, 158. execution of, 104. forms of. Svi^ Forms. include "rules," 133. no appeal from consent, 51. to be absolute in tirst instance, 158. j ORDERS IN COUNCIL, how annulled, 126. when laid before Legislative Assembly, 126. PAPER, description of, for printing proceedings, 550. PARTICULAR.S, in seduction cases, 168. of claim where writ specially indorsed, 167, 207. when ordered, 167. of counter-claim, 290. ' should be indorsed on writ if possible, 167 will not be ordered as of course, 167. PARTIES, changes effected by .Jud. Act, 228. who may be, plaintiffs, 227. 50 m \ V' 786 ONTARIO JiniCATURE ACT, 1^*81, PARTIES— {CuHtmrcd). changes ttfcoted by kc.—iconthnicil). wh«» may ite—{coiithiiu(f). claas suits, 243, 247. when persons forming class are uimscortiiineil, 24 (. suits for protection of proiMjrtj", 247. mortgagees, one of several may foreclose, 280. defendants, 231. alternative liability, 231, 232. uU need not be defendants as to all the relief claimed, 232. person carrying on business in name of firm, 24r). partners. So- that Titlk. several, liability, 233. bills of exchange, &c., actions on, 233. promissory note, actions on, 233. 0. counter-claim may Ijo revived, 490. partner, surviving, 49(i. practice as to adding or striking out parties, amendmeut made at any stage, 249. JNDKX. r87 umscortaiiit'il, 244. tive of tstate, 'SA'>. u changes oi -(roidinitnl). t)i'aotioe iV8 to iiiuuiKliUfiit witli or without application, 24!). " on j)rotween defendants, 207. ■."fc. %^ .m'V^ %^ IMAGE EVALUATION TEST TARGET (MT-3) 1.0 1.1 1.25 'f 131 ' ^ 1^ " Uuu, I; 40 1.4 1.8 1.6 7 //* Photographic Sciences Corporation m S \ ^.-< allowed, 340. cross-demurrers, who begins, 339. delivery of, 336. defence combined with, 338. demurrer books, 336, 591. 280. INDEX, 793 VLEABI'SCt— (Continued). demurrer — (continued). . documents referred to in, when may be looked at. 3.Sj. doubtful questions need not be decided on, 333. efifeet of allowance, 340. *' not entering, 33S. " overruling, 340. entry for argument, 33S, 591. form of. 341, 657. eflfect of not entering, 338. copy of pleadings to he liled two days liefore hearing form of, 334, 634. frivolous — costs, 334. grounds of, to be stated, 335. land, in action for recovery of, 333. leave to plead on failure of, 341. may be to whole or part of any pleading, 33 1 . misjoinder of parties, not allowed for, 333. multifariousness, no ground, 333. overruled — costs, 340. " — leave to plead, 341 . pleading and demurring to same matter, 337. part of a pleading, when proper and improper, 332, 335. parties, for error as to, 249. settuig down, 336, 590. Statute of Frauds, 297, 333. Statutes of Limitation, 301, 333. time for, 336. to amended pleading, 333. when admissible, 331, 332. - denial of contract, effect of, 296. of representative capacitj', unless admitted, 206. distinct claims to be separately stated, 2C3. grounds of defence to be separately stated, 293. discontinuance. See that Title. documents, contents of, how to be stated, 294. evidence not to be stated, 287. face of, how to be marked, 292. facts ar' sing after action brought, pleading, by defence, 303. by reply, 303. after defence, 304. " after reply to counterclaim, 304. confession of, by plaintiff, 305. prevents a new action, 306. costs of plaintiff confessing, 305, 300. 591. s" &,' 794 ONTARIO JIJDK'ATIJRE ACT, 1881. PLKADlSd— (Continual). facts arising— (continued). amenilment, to set up, how made, 305. facts only to be stated, 287. presumed in a party's f avc ur need not be stated, 29o. relied on, to be alleged, 300. figures to be used for ilatos, sums, etc., 287. tiling, 303. form of. dates, etc., to be in figures, 287. material facts to be stated, 287. what facts are material, 288. not evidence, 287. paragraphs to be numbered, 287. old common law forms when applicable, 289' signature of counsel not necessary, 291. not in long vacation, 553. forms in various actions, ection, 381). time for delivery, 307. extending, 308, 309. when necessary, ,306, writ specially endorsed, further statement ordered, 310. time for, 310. . statement of defence, ^0, 315, all grounds of defence to be raised in, 287, 310. costs of improper denials, 312. defence on merits with payment into court, 348. delivery of, 287. Avhen statement of claim delivered, 311. when no statement of claim delivered, 312. time for, 311. where leave to defend given under Rule 80. 312. where no statement of claim re(iuired, 312 delivered after time cannot be ignored, 311, extending, 311. oosts of, 312. denii.l of plaintiff's representative character, 296. distinct claims, to be kept distinct, 293, vform and contents of, 311. INDEX. 797 [)laiiitirt not oontiued ispection, 380. PLEADING— rC'o/(^'))//» 9. remitting for further consideration, 4(>9. what it should contain, 66, 69. special, adoption of report by (!ourt or tl udge, {K>. consent of parties when required, 67 . documents, examination of, 67, 384. enforcement of report as judgment, 65, 386. facts to be determined by, 66. investigations by (local or scientilic), 67 powers of, 69, .383, 384, 408. questions may be referred to, 64, 67. remiineration of, 65. report of , may be adopted, 65. trial of question or issue, 65. staying entry of judgment on report of, 386. trial by, adjournment, 407. authority in conducting, 70, 384, 408. continuous sittings, 407, 408. enforcing attendance of witnesses, 407. enforcing orders by committal or attachment not authorized, 408. evidence, how taken, 384. how conducted, 67, 407, 408. issues or questions, 67, 68. order provisions implied in, 384, 386. submitting questions for decision of court, 409. tribunal is not a public court, 354, 408. REFEREE IX CHAMBERS, authority of, 106, 109. And see Mastkk in Chambers. REFEREE OF TITLES, 106. REFERENCE. And see Akbitratioh, ARBiTRToiwf, Award. Rri'erkk.s, Submission. action, of, under C.L.I'. Act, 71-78. before trial, 71. in what cases, 71-72. action only referred, 72. arbitrator, powers of, 72-73. fees of, when County Judge or Master, 75. costs, power of arbitrators, 73. powrs of (yourt, how far continued after order of reference, 72. procedure on reference, 73, 87, 95. 61 802 ONTARIO JUDICATURE ACT, 1881. REFERENCE—! Contlimed). action — (continued). at trial, 75. procedure on reference, 75, 87, 95. award, filing of, 73. ' absolute 14 days after, 75. appeal from, 74. See Appeal. setting aside. See infra. ■ County Courts, have same power as High Court, 7^. how to be exercised, 78. appeal to Court of Appeal, 78. award, motion to enforce, 85. * ' to set aside. See infra, Motion to set aside award . evidence. See Witnesses, infra, issues and questions of, under Jud. Act. And see Rcfereks. any question in civil case may be referred, 64, 68. former practice, 64. order of reference, form and contents, 66, 69, 384. " " further consideration, 66. powers of Court continued, 70. And see Referee. procedure on reference, 383-386, 407-409. report, procedure to enforce or vary, 66, 67, 70. what may be referred, 66, 68. what should not be referred, 66. motion to set aside award under C. L. P. Act, 82, 85. grounds for, 82. notice to produce exhibits, 85. practice upon, 82, 83. time for moving, 83, 85. procedure on reference, 72, 73, 86, 87, 95, 9& copies of documents may be filed in lieu of originals, 84. evidence before Referees. See Witkesses, infra. reference back to arbitrators, 88. special issues, trial of may be ordered, 73. " case, 73. contents of, 87. referee or arbitrator may state, 86, 87. staying proceedings when agreement to refer, 88L to assess damages under C. L. P. Act, 77. appeal from report, 77. voluntary under C. L. P. Aet, action pending, 70. appeal from award, 82. enlargement of time for award, 81. INDEX, 803 REFERENCE-{(7onG. 88. 13, 14 (C'ounty Court Sittings) 566. a. 19 (County Court Jurisdiction), 497. a. 23 (County Cuurt Practice), 568. 38. 29-31 " " " 568. 8. 33 " '♦ " 569. c. 47, 8. 54 (Division Courts, Jurisdiction), 498. c. 49, 8. 5 (Administration of Justice), 228. 8. 8 (Amendments), 322. 8. 9 (Representation of estate of deceased parties), 235. ss. 18, 19 (Judgment Debtors), 473, 474. 88. 21, 24 (Transfers), 46. c. 50, ss. 6, 9. 11 (Dep. Clerks of Crown), 5)2. s. 11, (Venue in Local Actions), 172. . ' s. 20 (Service), 178. 8S. 21, 22 (Service on Corporations), 186-7. 8. 72, (Staying proceedings), 20. s. 84, (Joinder of causes of action), 269, 271. 3. 121, (I'ayment into Court), 559. 3. 134, (Bills and Notes, Pleadings), 233. 3. 152, (Assessment of Damages), 209. s. 156, (Examination of Parties), 353, 355. 3. 157-159 '■ " " 355. 8. 160, " "• " 356. 3. 161-163, '• " " 357. 88. 164, 166. " " " 358. 3. 180, (Dep. Clerks of Crown), 331. 88. 189-227, (References), 71-96. s. 252-265, (Trial), 61, 63. 3. 279, 280, (Deputy Clerks of Crown), 512. 3. 303, (Execution), 514. s. 305, (Judgment Debtors), 474. 3. 335, (Costs, Mileage), 178. s. 347, (Costs,) 527. 3. 353, (Revision of Taxation), 512. c. 51, s. 20, (Ejectment — Judgment for non-appearance), 210. c. 52, s. 21, (Mandamus), 81. c. 53, 8. 1, (Replevin), 497. e. 54, 3. 1, (Interpleader), 497. 8. 4, (Interpleader — Jury Notice), 61. •c. 56. 8. 5, (Lord Campbell's Act), 349. INDEX. 806 K«:VI.SED STATIJTK-; OF ON I'ARIO— (CW/natf,/). c. 66, s. 7, (ExocHtion), r)12, 514. ss. 72, 73, " 451. c. 67, 88. 10, 11, (Writ of Arrest), 467. ss. 12, 13 (Judgment for Costs, &c.,) 471. c. m, ss. 1, 2, (Merger), 25. c. 107, s. 30, (Administration), 23. o. 108, s. 30, (Express Trusts, Ijimitatiou of Action), 24. I', c. c. e. 116, ss. 6, 12 (Choses in Action), 27, 28. 125. s. 20, (Suits by Married Women), 238. f. l.'JO, s. 1, (Infants, Custody of), 39. e. 1.S2, ss. 0, 10, 1.3, ((Guardians), 40, 220, s. 49 (Official Committee of Lunatics), 184. 224, ss. 19-24. (Gaols, Tnspeetion and repairs of), 131. RKiHTS, leg.ll .and ecjuitablc concurrently recognized, Hi. 18. ROTA OF .TlTDdES, for Election Cases, 47. RULE .V/SV. .SV'Nkw TRiAr,, RULE OF ( !OURT, in what ( 'ourt, 80. procedure, 79. volunt.ary submission to arbitration, 78. RULES OF COURT, 134. appeals, as to, 101. commencement of, 98. construction of, 1 34. deal with procedure, not civil right's, 1.35. • English Rules, dates of, 135. effect of non-compliance with, 359. High Court, who may make, 101. how cited, 509. how made, altered and annulled], SK), 100. include forms, 132. may modify Rules in existing statutes, 101. original, how made, 99. what matters may be provided for by, 99. Supreme Court, who may make new, 101. RULES OF LAW UNDER JUDICATURE ACT, 15, 41. complete justice to be done in every case, 22.- equitable relief to be given in all Divisions, 15. *' defences, 16. •' counter-claims, 17. " interests generally, 18. former rules of law to govern, except as altered by the Act, 22. I ^00 ONTARIO JUDICATURE ACT, 1881. RULES OF LAW UNDER JT^DICATURE ACT— (ConrDimd). prohibition and injunction, IS. staying pioceedings, 19. to apply to Inferior Courts. 150. what rules to govern certain cases, 24, 41. See Gnosis ly Action, Conflict of Ri'les, I'^yuiTABi.R Wa.sii;, ExPRKSS Trusts, Lvfant.s, I.njuxctio.v, Mandami'h, Mkkgeu, MoKTOAOB Si'iTS, Rkckivkr, Time, Stipulations in Contracts. SALE, conduct of, under trusts in will, &c. , 503. order for, 227. procedure on, 442, 447. SALE OF GOODS, order for, where perishable, &c. , 499. SATURDAY. -Sc^ Time. SCANDALOUS MATTER, striking out of pleadings, 278, .326. SEALS, Deputy Clerk of Crown, of, 9(5. Deputy Registrars, of, 90. Supreme Court of, 7. SECURITY FOR COSTS. See Co.sts. SEQUESTRATION, commissions of directed to Sheriff, 452. enforcing judgment by, 451. SERVICE, And see Notice, Wuir of Sum.moxs. address for, to be given by plaintiff suing in person, 170. admission of, repudiation, 552. affidavit of, on default of appearance. See Default. counter-claim of. See I'lradisi;, Cou.ster-Claim, garnishee order. See Aitachment. hours for service of papers, 552. not personal, counts from receipt only, 552. notice in lieu of writ, 190. notice of motion, 504-5. And see that Titlk. to vary judgment. 4,32. order, adding or changing parties, 491. discovery or production, 380. ■ nisi for new trial, 425. out of jurisdiction, allowance of where made without previous order, 195. existing jurisdiction as to, not affected, 195. former practice, 189. Local Master or County Court Judge cannot allow, 192. INDEX. 807 SERVICE— (Con. SPECIALLY IN DOUSED WRIT. Se^. Indorsement of Writ. SPECIAL REFEKEE, S<'e Referees. SPECIFIC PERFORMANCE, form of indorsement. Scf Forms. STAMPS, cancellation of, 1 13. fees payable in, 537. STATEMENT OF CLAI.Vl. .SV»^ Pleading, STATE.MENT OF DEFENCE, '^^i' Pleadivg. STATUTE OF FRAUDS, pleailing, 296. STATUTE OF LIMITATIONS, demurrer may raise defence of, 301, eflect of renewe. 47 Vic, c. 19 (Married Wonieuj 241. STAY OF PI!OCKEI)IN(iS. S,'r Ai-pkal. agreement to refer, 88. appeal does not oi>erHte as, .V22-791. appliciition for, when to be made in the action, 19. practice on, 20. Court may direct instead of injunction, 19. cross actions, 21. foreim action, pendency of, 20. frivolous actions, 21 . non-payment of interlocutory costs, no ground, 21. on payment of amount indorsed on writ, 168. order xixi for new trial, no stay, 427. I>endency of foreign action, 21. pending decision of preliminary (£uestion of law, 389. " giving of security, 21. plaiutifts' names not disclosed, 175. relief claimed in a former action, 21. writ issued withcmt authority, 174. STIPE N DIARY M A< llS'l !{ AT I :, appeal from, 13. SUBMISSION TO AllBITa.Vn(JN. See Arbitkatiov, Awaiik. Kekeken«e. M'hen may be made a rule of (Jourt, 78, 80. procedure to make, 79. what Court has jurisdiction, 80. revocation of, 80, 81. reference back to arbitrator, 87. staying action when there is an agreenient to refer, 88. SUIT, includes acticm, 133. SUMMONS, form of, 520. Sfe Fokms. motions in Chambers in outer Countieg, by, 520. SUNDAY. SffTiyiT.. 810 ONTARIO JUDICATUllK Alies to all rules as to time, 5.55, 575. * entry for trial, after notice, 400. i * execution, for, 461, 4(i3. expiring when ortices closed, 551. filing pleadings ; long vacation not counted, 553. holidays when excluded in computing, 556. issue of writ, fraction of day, 162. long vacation, 553 " month" means calendar month, 550. motion for judgment. Sfe tliat I'itle. ne recipiatur, tiling, 425. notice, motion, two clear days between service and heariiii;, 505. " for judgment on affidavit evidence, 420, 4il. ' ' for order nm for new trial, 424. " to vary or set aside judgment, 432, 433. And .s.c Motion for Judgment. to cross-examine on affidavits, 421. trial, 349, .399. And sec Notice, Trial. payment into Court in satisfaction, 348. acceptance by plaintiff, 351 . pleadings for, long vacation not counted, 553. reply to counter-claim against third person, 314. Saturday, service on, 552. service of order ni/ii for new trial, 425. of notice of motion to vary judgment, 425, 432. 812 ONTAIIIO .lUDir'ATUBK ACT, 1881. TIME— (CoMtlMKff/). ftervicc of prococdingH generally, .Wi. sittings and vacations, 563-5, 58() I . Snnday, time expiring on, rt't\. , when counted, .Vil. TITLE, c«)unter- claim ngainat plaiutift' and a third pei-son, 312. TOUONTO (JENEUAI, TRUSTS f:uMPANY, may be authorised to invent moneys in (/'ourt uj)on eortaih ooiiditions, 577 TUANSFEK. actionH, against estate after administrntion urder, 4t)4. application for, on notice, 496. former powers as to preserved, 4»), 493, from Inferior (!ourt to High Court, 1*24. from one Division to another, 4(i, 493. by Judge, on motion, 494. by Presidents to e. general power, Hi. statutory provisions as to, Itcfore .iudicatuiv Act, 40. when jury desirel , 266.. !{96, 3.^. entry for, 399, 400. by either party, 399. by both parties, 399. Chancery Division, in, 401. copies of pleadings for judge, jcc, 400. in County Courts, 400. separate lists for defended and undefendei, "i&x ;»«, ;j»8. TRIAL (t'unliiiituh. iBBUt'8 of fact. .SV< .li KV. IssiKsoK K.\i;r, ami llRKKRKNt.K. garnishee ilisputiiig liability, 48'J. on api»lioati(in to enforce coinlitioiial jiiilgnient. 45<5. judgo or jiitlgtM, hi'foif, (>.'{, MIW. judge imiHt ilfcidf questions of law, 4K, .')S. judgment. Sri .T( TMiMINT. jury, (lisjK'iiMiiig with. i'AK (11. in ('liaiii'ciy, oK-JiO. " " onler niiist lie l)y ( 'onit, (U. notice, Ul. new trial. And .<-(' N'kw 'I'niAi.. single judge sits, '.WH. mode of, iV.>, (W, (» 1 . ditl'eront, for d. J'erent i|Ue8tion8 in same action, 201, '2(56, ;VJt>-398. Knglish practice, jury or no jury, HO. Ontario ■ •■ " (50, non-appearance. application to Het iuside judgment on, 4<.>H. of defendart, 402. provinj; notice unnecessary, 402. of plaintiff, 402. ' provinf, notice unnecessary, 402. non-jury cases, sittings for trial of, Uli. notice of, liy either party, 304. one of several defendants, ;-{94. countermand of abolished, 399. dismissal for want of jnosecution, on default of plaintiff's giving, 394, form of, 398. given before entry, 399. length of, 394, 399. proving on non-appearance of opposite party unnecessary, 402. remanef, not necessary in ease of a, 395, short, 399, 551. when nuiy be given, 394. place of, changing, 307, 392, 393. former practice as to, 392. in non-jury cases, 63. land, in actions for recovery of, 392. * naming, in statement of claim, 307, 392, order of Judge altering, .S92, 393. patent, in action for infringement of, 393. plaintiff may choose mode and place of, 307, 392. pleadings must be sufficient in law, 59. 814 ONTAKIO JUDICATURE ACT, 1881. TTiJAlr-iCoiitinued). postponement, 404. preliminary, of question of law, 389, fact, 396. questions to jury, 63, 405. referees, by. And see Rbferees, I'rial. reference of questions at, 75. reservation of decision of Judge, 63. separate, of distinct causes of action when ordered, 261, 266, 396-398 single Judge, before, 59-61. sittings for non-jury cases, 66. Chancery cases, 400. verdict, general or special, 63. witnesses, exclusion of, 62. TRUSTS, , account obtained on summary application, 225. execution of, form of indorsement. See Forms. express. Statute of Limitations no bar, 24. one of several cestuiM que trustent may have, 246. TRUSTEES, actions by and against, parties to, 234. costs of, order as to, appealable, 51. UNDERTAKING TO APPEAR, .■ittachment for default. 199. VACATION, And nee Vacation Judges. appeals from Masters' report, 553. applications heard in, 564. County Court, in, 681. Masters' report, made in, 553. not reckoned in computing time, 553. offices to be open during, from 10 a.m., to noon, 582, orders in, by single .Tudge of Court of Appeal, 57. pleadings, delivery, filing or amendment of, in, 553. Rules fixing, how made, 42. sittings in, 42, 564, 580-1. VACATION JUDGES, authority of, 41, 565. business heard by, 565. Court of Appeal Judges not required to act as, 564. how selected, 564. other judges may sit for, 565. sittings of, 42, 565, 581. VENDITIONI EXPONAS, writ of, preserved, 451, 466. INDEX. 815 J61, 266, 396-398 VENUE. See Trial, Place of. former practice, 392. local, aljolished, except in ejectment, 392. place to be named in statemmt of claim, 307. VERDICT. Sfr Trial. WASTE, eciuitable, placed on same footing as legal, 24. injunction against threatened, 29. WITNKSSES. See Refkrehce. enforcing attendance, of, 127-8. exclusion of, 411. WITHDRAWAL OF RKCORD, 318. WORDS. See Interpretation, 1.32, 1.33. WRIT OF CAPIAS, 159. See Forms. WRIT OF ATTACHMENT, 455. See Form.s. WRIT OF DELIVERY (CHATTELS), 486, 693. See Execution, Forms. WRIT OF EXECUTION. See Execution, Forms. WRIT OF POSSESSION, 484. See Execution, Forms. WRIT OF SEQUESTRATION. See Execution, Forms, Sequestration. WRIT OFfc^SUMMONS, 159. See Forms. action commenced by, 159. iddress of client, disclosure of, 174. administration actions, in, 159. amendment, 159, 162. on adding defendant, 255, 256. order, necessary when, 162. service of amended writ, 163. unnecessary after statement of claim delivered, 162. what irregularities are amendable. 103. appearance, time for, 162. C(mcurreut, how issued, 173. how lung in force, 173. for service out of jurisdiction, 173. when may issue, 173 when different time for appeal ance by different defendants, 173. costs of prolix, 160. date of issue to appear on, 161. disclosure by solicitors and plaintiffs, 174. Division to be specified in, 44, 159. entry in Process Book, 172. filing copy, 172. form of, 160, 161. And See Forms. for service out of jurisdiction, 161. 816 ONTARIO JUDICATUKK ACT, 1881. WRIT OF HU MMOiiH— (Continued). full style of cause to be given, 162. indorBcment, 159. And see Indorsement of Writs. issue of, alternately from Q. B. D. & C. P. D., 171. by plaintiff from any office, 171. concurrent, 173. copy may be left, 163, 172. how to issue a writ, 172. what officers issue writs, 171. when writs may issue, 162. who may issue a writ, 170. without authority, proceedings stayed, 174. marking with name of Division, 44, 159. may be parti'' written, &c., 172. notice in lieu of, 161, 177, 180. •office where appearance to be entered to be stated, 172. partners' names, disclosure of by solicitors, 175. • renewal, application, how and when made, 175. computation of time, 176. evidence, 177. former practice, 176. how effected, 176 leave necessary, 176. original writ lost, 1 76, stops Statute of Limitations running, 176. when too Late to renew, 176. residence of client to l)e endorsed on, 1 74. sealing of, 172. service, action to recover land, 188. affidavit to show date of endorsement, 188. associations or p-artnerships, on, 186. Colonial Government, on, 180. companies, on. 186. corporations on, 186. directors, on, 188. existing practice continued, 177. express companies, on, 187. foreign corporations, on, 186, 187. former practice, as to, 176. indorsement of date, 188, 554. infant defendants, 182, 184. insurance companies, 187. lunatic defendant, 184. WRl INDEX. 817 WRIT OF SUMMONS— (Con