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Les diagrammes sulvants illustrent la mAthode. 1 2 3 1 2 3 4 5 6 DI TI THE FR WITH .85997 DIGEST OF REPORTS OF CASES .s'f// DECIDED IN THE COURT OF CHANCERY, IN THE COURT OF ERROR & APPEAL, ON APPEAL FROM THE COURT OF CHANCERY, AND IN CHANCERY CHAMBERS, FROM THE ESTABLISHMENT OF THE COURT IN UPPER CANADA TO THE PRESENT TIME ; WITH REFERENCES TO THE PRINCIPAL ACTS OF PARLIAMENT AFFECTING THE COURT, i a ■ ' ^n-w'*(-4-i. BY C. W. COOPER, Esq. BARRISTER, REPORTER IN CHAMBERS. JUNE, 1868. TORONTO ^fB^^y k'hINTED FOR THE AtT: BLACKBURN'S CITY STEAM Entered according to Act of the Parliament of Canada, in the year one thousand eight hundred and aixty-eight, by Chablbs William Coopss, in the office of the Minister of Agriculture. Of whc from y will fo pilatio] AUG 8 1966 TORON TO Sl!he Judges OF THE COURT OF CHANCERY, Of whose industry, ability and learning, the Reports, from which the following pages are compiled, will form an enduring monument, this little com- pilation is, by permission, respectfully dedicated, Toronto, Jdni, 1868. foii MS 1. f 4' If: The wri the delay \ which he ( than he d yond whal labour am greatest a mati^er of i whether hi not 60 sur to another readily rei where oas( (such inst are given titioner hi is sostaine ezceedingl in the pre in any ine It has I tions now Registerec Notice, &C affording ; epitome oi tain all re] PREFACE The writer has to apologize to the subscribers to this yolume for the delay that has taken place in its publication ; but circumBtaooes which he could not control have caused it, and none r^et it more than he does. The dimensions of the work too, have increased be- yond what was at first contemplated, which has added much to the labour and the expense of publication. It has been the writer's greatest anxiety to avoid the omission of any decided case or mati^er of value, and he trusts he has attained his object in this ; but whether he Las been equally successful in avoiding repetition, he is not so sure. Where cases relate to one subject apparently as much as to another, they are frequently given in both, to ensure their being readily referred to ; and, even at the risk of a seeming repetition ; where cases are variously reported in di£ferent reports or publications, (such instances not being very frequent,) the different head notes are given from each work, (unless altogether similar), and the prac- titioner himself is left to judge how far the head note in each instance is sustained by the case, — for the compiler of this work would regret exceedingly if the throwing together of the decisions of our Courts in the present form was used in such a way as to lead to the neglect, in any instance, of a careful perusal of the cases referred to. It has been thought advisable, also, to give the decisions on ques- tions now in a measure obsolete, — such, for instance, as those affecting Registered Judgments, Tacking, Notice before Registration was made Notice, &c., as such decisions may still very frequently be referred to as affording analogies in other oases ; and as the desire was to furnish an epitome of all decided cases. This volume, therefore, is intended to con- tain all reported oases in the Court of Chancery, in the Court of Appeal K > w ^ ■ H- m 6 PREFACE. >. on Appeal from Chancery, and in Chancery Chambers, together with the principal Acts relating to the Court of Chancery, and extracts from them in the shape of the clauses that relate to the different headings, and also, such oases in Chancery and Chambers as are re- ported in the Upper Canada Law Journal. References are also given on points of practice to Mr. Taylor's useful volume, " The Chancery Orders" which are obviously, and of course, extracted from the index to that work, and are given as shewing where authority on the subject of the heading can be found, and to save re-reference to his index ; this has of course been done with Mr. Taylor's concurrence and sanction. Some errors and oversights have unavoidably crept into these pages, but any that are at all calculated to mislead will be found corrected in the corrigenda and addenda, or supplied in the appendix. The writer, however, does not by any means claim that the work is in every re- spect perfect, even with these additions ; he is painfully conscious that such is far from being the case, but he has attempted to supply a want that was much felt in the profession, and trusts that he has not been altogether unsuccessful in producing a book which occassionally will save time and trouble to, perhaps, both tho Bench and the Bar. Some variations will bo found in this compilation from the mode in which Digests have been compiled where tho matter Ji.more voluminous. The references to other headings arc given at the i6nd of each subject ; the division of the subject into sub-headings and sub- sub-headings has not been adopted, but each case has been headed by a note in italics, selected in subordinate reference to tho general head- ing, and a full index to each heading has been given, referring to the etm by numbers, which will indicate at a glanco what tho cases un- der each heading relate to ; where the cases urc numerous, this is arranged alphabetically, where few, consecutively, as to the numbers, In conclusion, the writer has to thank many kind friends for encour- agement and aid in the task he had undertaken, which, though appar- ently simple enough, and not calling for the exercise of much ability, beyond industry and care, has, at the same time, not been unattended with some difficulties and anxiety. her with extracts different 18 are re* ilso given Chancery e index to subject of :; this has on. Some i, but any sd in the le writer, every re- loiouB that ly a want not been sassionally I and the from the tcrJ|.more the i^nd of 8 and sub* cadod by a icral hoad- :iug to the s cases un- us, this is } numbers, for encour- ugh appar- i of much i, not been NOTE. In looking up any subject readers should, as a general rule, turn to the heading " Practice," it not having been deemed necessary to refer specially to that head under the very many headings to which it also relates. Reference should also be made to the Appendix, and to list of "Appealed Cases," and " Decisions Appealed from," &c., the fact of the case having been appealed, not always being mentioned at the end of it, and some of the judgments in appeal having been given since the cases were in print. The Upper Canada Chancery Reports and Upper Canada Chancery and Appeal Reports are referred to as *' Grant." The Error and Ap- peal Reports, are referred to as E. & A. R. The Chancery Chambers Reports, as Cham. Rep., the first volume being that published by Mr. Grant ; volume 2, being the current volume. Cooper's Cham- bers and Practice Reporter, as Cooper's C. & P. R. Upper Canada Law Journal, as U. C. L. J., or U. C. L. J., N. S., new series. The body of the work contains the 13 volumes of Grant's Re- ports. With the Appendix, it includes volume 14, to page 264, and volume 2 Chamber Reports to page 232. k. hi K-M f'lif J) FROM «! Costs. Where i gives notu against hit refused. As to pre See alsG ■In purchaae m I Of suit, 2. |1 — In pu A sale 1 jSooiety in led that it i af pine — ir istence at a )ill t,o com] lent of th nthout ooj ^he Court hhome v J26. B DIGEST OF REPORTS OF CASES IN CHANCERY, FROM THE ESTABi.iSHMENT OF THE COURT TO THE PRESENT TIME. ABANDONED MOTION. Costs. Where a motion stands over, and afterwards the party moving gives notice of abandoning the application, the costs which are given against him are not those of an abandoned motion, but of a motion refused. Denuon v. Devlin, 11 Grant, 84. As to practice regardimj. See also Taylor's Chan. Orders, 129. ABATEMENT. I In purchaM money, 1, 8. I Of suit, 2. ,1 Amendments on, 4. 1 1 — In purchase money. A sale having been advertised of property held by a Building iSooiety in security, in describing it it was amongst other things stat- sd that it rented for £72 and that forty acres of it were a dense forest !)f pine — in reality it rented for £oO only, and the pinery had no ex- istence at all. The purchasers having discovered the error filed a )ill t,o compel specific performance of the contract, with an abate- lent of the price. The Society offered to perform the contract without compensation, but this the purchaser declined to accept. )he Court, at the hearing dismissed the bill, but without costs. hbome v the Farmers and Mtchaniti Building iliocittif, 5 Grant, J26. B 1R .>u ' ^ .• .^ 10 EQUITY DIGEST. 2— Abatement of suit A suit does not abate by the death of one of the plaintiffs, if other* remain on the record having similar interests, and capable of main- taining the suit. Alchin V. Buffalo and Lake Huron Railroad Company, 2 Cham. Hep., 45. Z— Abatement of purchase money. An application by a purchaser in a suit for specific performanoe for abatement of purchase money on the ground of outstanding dow- er should be made in Court and not in Chambera. Hhinnen »» Graham, 1 Cham. Rep. 212. 4 — Aniendment on. See Taylor's Orders, 218. See Dismissinq Bill— Doweb— Speoipio Performance. ABORTIVE SALE. See Foreclosure. ABSCONDING DEBTOR. ■ Inquiry directed. When it is necessary for the purpose of settling the priority of in- cumbrancers to inquire whether a party who had been sued was or was not an absconding debtor within the meaning of' the Act, thi» Court will do so, and that too, although the defendant in the action may not have taken any steps to set aside the attachment issued at law. Montreal Bank v. Baker, 9 Grant, 97. Held also (affirming the decree) that the bona fides of proceedings taken against a person as an absconding debtor, with a view to ob- taining a priority, could be questioned in this Court at the suit of a creditor or third party. S. C, 9 Grant, 298. See Pro Confesso. ABSCONDING DEFENDANT. Pro confesso, suit against, 1, 5. | Advertising, 2, 3, 4, 6. 1 — Pro confesso suit against. In moving to take a bill " Pro Confesso" against an absconding defendant, and who has been advertised as such, it is necessary to show by affidavit that the defendant cannot be found to be served with notice of the motion. Gilmour v. Matthews, 4 (irant, 376. 2— ilc^i A pari service o; vits that places, ai in which an advert of resideu eral papei at each of 3. An sconding, absconded husband, I ascertain 1 tion, requi could not i to reside, f jurisdiotioi 4. Wh( of 1853, to action had cation to ti V. C, req returned w norant of li notice of tl See Pf EQUITY DIGEST. 11 2 — Advertising. A party having absconded from this Province, as alleged to avoid service of proceedings in this court, and it being shewn upon affida- vits that within a few months he had been resident at several different places, and that it was impossible to say with any degree of certainty in which of them he could be served with process; the court directed an advertisement to be inserted in a newspaper, published at the place of residence of the party in this Province, and that a copy of the sev- eral papers containing the advertisement should be sent to his address at each of the places named. Stinuonv. Stimson, 6 Grant, 379. 3. An application was made to advertise a defendant as ab- sconding, and in an affidavit it was sworn that the defendant had absconded to Michigan, where his wife had lately gone to join her husband, but did not state that any endeavours had been made to ascertain his residence. Estcn, V. C, before granting the applica- tion, required an affidavit to be produced, shewing that the defendant could not be found in Michigan, where it was supposed he had gone to reside, for the purpose of being served with the bill out of the jurisdiction. Lipsey v. Cruise, 1 Cham. Rep. 2. 4. When an order had been made, pursuant to the general orders of 1853, to advertise the defendant as absconding, and no further action had been taken thereon for nearly four months : on an appli- cation to take the bill pro confesso against such defendant. Esten, y. C.( required an affidavit shewing that the defendant had not returned within the jurisdiction, and that the plaintiff was still ig- norant of his whereabouts, so that he was unable to serve him with notice of the application. McCarty v. Wessels, I Cham. Rep. 5. o — Order pro confesHo against an aht^conding defendant. The Chancellor, on a motion for an order to take the bill pro confesso, in this case against the defendant, llambly, under the or- ders of 1853, authorising notice to be given in some public paper, where the defendant had absconded, «tated that in future on all such orders being applied for, the several newspapers in which the ad- vertisement has been inserted must be produced and shown to the Judge, to whom the application is made, before the order ^ro con/esso will be granted. Goodfellovo v. Hambly, '■ Caam. Rep. 62. See Pbaotice 83. M I 'h 12 EQUITY DIGEST. ABSENT DEFENDANT. Order 9th of June, 1853, a8 to, 1. Decree pro con. against, 2. Advertising, 3. Service of bill by publication, 4. Con^iolidated Sttttuteti, relatiug to, 6. ■I— Order 9th of June, 1853, as to. Section 8 of the IX of the general orders of June, 1853, does not apply to any cases other than those for foreclosure or specific per- formance of an agreement. Bank of Montreal v. Hatch, 1 Cham. Rep. 57. 2 — Decree pro confesso, against. In moving for a decree, pro confesso, against a defendant who has been served out of the jurisdiction, it must be shown that such defendant formerly resided in Canada, and left the Province. An- onymous, 1 Cham. Rep. 204. 3 — Advertising. Where an application is made to advertise r>n absconding defend- ant, the affidavits must show whether he has any relations in the country ; if he has any, one or more of them should, generally speaking, be examined as to their knowledge of his residence before the order is applied for. McMurich v. Hogan. Perkint v. Flebt, 1 Cham. Rep. 307. 4 — Service of Bill by puhlication. Where a sole defendant in a foreclosure suit had been absent from the jurisdiction for fourteen years, and had not been heard of during that time, a motion for service of the bill upon him by publication was refused notwithstanding. 28 Vic. ch. 17, sec. 12. Shaw V. Acker, I Cham. Rep. 395, 6' — Con. Statntes, relating to. An absent defendant may be served at any place out of the juris- diction of the Court, with a copy of any bill or proceeding without an application being previously made to the Court for the allowance of such service, and the service shall be allowed on proof to the satisfac- tion of the Court that the same was duly made. 20 Vic. oh. 56, seo. 15, Con. Stat. U. C. 61. Sex AtI See Mortgaoe, EQUITY DIGEST. ABSENT DEFENDANT'S ACT. 13 14 and 15 Victoria, Chapter 10. 1. Where a person is served under the Statute, 14 and 15 Vic- toria, chapter 10, as agent for an absent defendant, but is not such agent, he may in his own name move the Court and set aside such service. Doremus v. Kennedi/, 2 Grant, G57. 2. A visit of two months' duration in Upper Canada is such a residence as brings a defendant within the Statute. lb. 3. Where a plaintiff desires to obtain the leave of the Court to effect service on a defendant by serving the subpoena on a person re- sident in the Province as agent of the defendant, it must be shown that the person so to be sued is such agent by some evidence other than the statements of the alleged agent. Legge v. Winstanley, 3 Grant, 106. NoTB. — The above act is now effete. Con. Stat. U. C, 1081. ABSOLUTE DEED. Mortgage hy. G a creditor of P, under a judgment recovered in 1826, filed a I bill to redeem W, the alleged mortgagee, under a deed of convey- ance to him from F, absolute in form. A creditor of VV, under judg- ment recovered in 1859 and kept alive by^ fa lands, was made a party in the master's office as an incumbrancer subsequent to plain- tiff; held that he could not properly be thus made a party, but the (plaintiff was allowed to amend his bill by making him a party, in [order that an opportunity might be afforded him of contesting the plaintiff's right to treat the conveyance from F to W as a mortgage as e^ainst him. Ghiss v. Frevkleton, 10 Grant, 470. Where a conveyance absolute in form was executed as a security [only upon a verbal undertaking of the grantee to re-convey upon pay- iment of his demand. Meld that a judgment creditor of such gran- Itee could not enforce his judgment beyond the amount of principal land interest due the grantee. lb. See Moutqaqe. ABSTRACT OF TITLE. See Attachment. ACCEPTANCE OF TITLE. See Spboifio Performance. I . I 14 EQUITY DIGEST. ACCEPTOR AND DRAWER. Sib Peinoipal and Surety. ACCOMMODATION ACCEPTOR. The holder of certain accomniodation drafts, after having obtained judgment an(' execution against the payee thereof, was paid the amount of them by the accommodation acceptor, and thereupon eipressed his intention of directing the sheriff to credit that sum on the execution in his hands, the amount of which he had made by sale under execution of the goods of the payee for whose accommoda. tion the bills had been negociated. The acceptor hearing of this gave the Sheriff notice of his claim, and filed a bill to compel the pay- ment of the amount which he had advanced. Held, that as surety the acceptor had a right to receive the amount of his claim out of the proceeds of the execution, to the exclusion of the subsequent execution creditors. Rigney v. Van Zandt, 6 Grant, 494. ACCORD AND SATISFACTION. Sxi Mortgage. t ACCOUNT* 1 — Where waete trifiing. Where an Injunction to stay waste was continued at the hearing, and it appeared that the extent of the waste committed did not ex. oeed $20, the Court refused to direct any acount, and left the amount of the waste to bo dealt with in any action foi mesne profits which the plaintiffs might be advised to bring. Raven v, Lovelaa$, 11 Grant, 435. Where partly not exempted from. An agreement between two persons that they should carry on business as co-partners in the sole name of one of the two, the other being in debt and wishing by this means to keep the property from his creditors, does not exempt the partner whose name was used from rendering an account of the partnership dealings to his copart- ner. Brigham v. Smith, 3 U. C. E. & A. R. 46. Sii FoREOLosuRB— Mortgage — Partnership — Prinoipal AND SlOUBITT— ReDIUPTION. EQUITY DIGEST. 15 ACCOUNTS. How taken in chambers, see Taylor's Orders 116^ in what form, lb 116 ; how verified, lb 116 ; notice to surcharge to be served, lb 117. Proceedings on, in masters office, lb 137, 138, 139 ; in what form in master's office, 140; how verified, lb 140 ; notice of surcharge, lb 14 ' ; form of account on mortgage debt for master's office, lb 320 ; of an affidavit su|ip>rting, lb 301; when directed by decree to be numbered, lb 170; proceedings where state of changed, lb 209; notice on, lb 208 ; form of affidavit verifying, of personal estate, lb 303 ; form of account, lb 305 ; of affidavit verifying of real estate, lb 3U6 ; form of receiver's, 323,324 ; affidavit verifying, 307. ACKNOWLEDGMENT OF DEBT. See Adminstbation. ACQUIESCENCE. Where not held a bar to relief. An unequal and unjust division of a residuary estate was agreed to in 1858 under circumstances that rendered the transaction invalid. The division was acted on to a certain extent by both parties, though conveyances had not been executed. A bill being filled in 1864 to set aside the division, and the delay sufficiently accounted for, a de- cree was made as prayed, and it was referred to the master to make a new division, not disturbing the old division more than should be necessary. Clarke v. Hawke, 1 1 Grant, 527. ACTION AT LAW. See Injunction. ACTS. Acts of the Province of U[)oer Canada relating to the Court of Chancery and Court of Appeal, or referring thereto. 7 W, 4 2. Vic, 10, (lunatics). 12 Vic, c 64, (judges, &c.) 12 Vic, 72, (infants). 20 Vic, c 56, (repealed by 24 Vic, c 40, as to registered judgments). 13 and 14 Vic , c 60, (par- tition). 14 and 15 Vic, c 10. 18 Vic. c 124, (dormant equities). 18 Vic, c 127, (registration). 18 Vic, c 126. 16 Vic, o 119, (appeals). 16 Vic, c 159, [infants]. 2 Vic, o 15., (appeals). 24 Vic, c 40, (registered judgments). 20 Vic, c 2, (Court of Ap- peals). 12 Vic, c 63, 8 40, and c 72, [infants, &c]. 20 Vic. o 5, 16 EQUITY DIGEST. B 7, [Court of Appeals]. 29 & 30 Vic, o 39. 16 Vic, o 119. 29 Vic, c 28, [trustees]. Con. Stat. U. C. 88, 92, [County Oourt Appeal]. Con. Stat. U. C, c 12, p 45, et seq. lb. 280 o, 24 a. ADDING PARTIES. Where a cause stands over, at the hearing for the purpose of adding partieis, the plaintiff has not a right to amend by changing the venue ; but a defendant having delayed unreasonably in making his application, a motion to take amended bill off the files for irregu- larity in havin.'' been thus amended, was refused without oosta* Fenfon v. Cross, 1 Cham. Rep., 25. See Ameniments. ADDING PLAlNTIFPa Where new plaintiffs are added by amendments, they have, at the hearing, the same rights, and the Court has the same discretion in the case of a misjoinder, as if they had been the plaintiffs originally, and the Court may, under the general orders, treat such new plain, tiffs as the sole plaintiff. Mason v. Sency, 11 Grant, 447. See Amendments. ADDITION AND DESCRIPTION OF PARTIES TO A PETITION. A petition should set out the addition and description of the peti- tioners in the same manner and with the same certainty as a bijl '•' complaint— V. C. Spragge. Hunter v, JUounfjoi/, 2 Cham. 'K^'-;; ;•' bill «ll^e( J ed in the ipro eonfesi I usual deer obtained. 12— Ci>«te. In an i J the childre jbeen sued i Jcreditor of Ifhnds to pa; |to;^U; tb I Mtnsie$ v. |3 — Dower. In an ad claim for < hat decision eiow, in so lirections as ^ants having Ending of th -Judgi ADMINISTRATION. Acknowledjjraent of debt, 18. AJ litem suit, 1. Application of a.s.scts, 14. Costs, 2, 5, 11, 15. Dower, 3. Executor, 10. " huw far liable for default of co-ex- cutor, 12. " de son tort, 10. " right to be recouped, 13. Foreign administrutor, 7. Injunction against, 8. Interest, 10, 20. JuilyMifnt, creditors, 4, lii'tfHtee, upplicittion by, 21. .MI.M'iinduct of executor, 0. Nctflitfence, 17, 19. rurties, 11. I'ayintf innney into court, 6. I'li^v.^ical weukiies.s of testator. I'nictice, at* to, 21. I'M coll, 1. Settini; aiiide deed, 4. 1 — Ad litem, suit. — Pro confesm. Where in a creditor's suit to administer the estate of deceased debtor to whose estate administration ad litem had been taken, the 9n, and Hlkipie V. ee title act I — Costs oi Under ai Butors admj |bjeoted to EQUITY DIGEST. IT deceased akoD, the bill alleged tbat there were do personal assets, and the parties interest- ed in the real estate had suffered the bill to be taken against them, \pro eonfeuo, and did not appe|r at the hearing ; the court made the I usual decree without requiring a general administration to be first I obtained. Dejf v. Dey, 2 Grant. 149. 2 — Costs. In an administration suit it appeared that the step-father of I tbe children of the deceased, and who had the care of such child had (been sued for the child's board, while at school, his mother being a Icreditor of the estate, and neither she nor her husband having any lAinds to pay for such board, while there were funds applicable there- jto ; held, that the step-father should be allowed the costs of such suit. \Menties v. Ridley, 2 Grant, S44. 13 — Dower. In an administration suit the widow of the testator had made claim for dower which had been allowed ; and upon an appeal from lat decision, the court of appeal reversed the judgment of the Court Blow, in so far as it had allowed the claim for dower, but gave no lirections as to the payment of the costs of the appeal. The appel- ^nt« having paid their own costs of the appeal, this court upheld the Inding of the master in allowing them such costs out of the estate. Jb. ■Judgment creditoi's. — Setting aside deed. ^ The provisions of the statute 13 and 14, Victoria, eh. 63, ap- ^'ly only to judgment creditors whose judgments have been entered fh.y since tha 1st day of January, 1851 : where therefore creditors Iprhose judgment was entered up in the year 1836 and registered in ^^854, filed a bill in the year 1856 to set aside a deed executed by debtor to his son, in the year 1835, as having been done to de- Lud creditors, or as being voluntary, and therefore void as against turchasers, for value ; the Court refused this relief, but gave the plain- ffs liberty to amend by making the bill a bill on behalf of all cred- n, and praying for an administration of the debtor's estate. 'lleyne v. Van Egmondt, 6 Grant, 533. [13 &,14 Vic. repealed, le title acts.] i — Costs of defence. — Paying money into Court. Under an administration order obts td by a creditor, the ex- lutors admitted a certain sum of m.aey i; ^and, part of which they >jeoted to pay into court, on th^ r ./und that it had been paid by ..^ hi '^ I ^* j^ I * '■ I -? 1^ '1 18 fiQtJITY DIGEST. them to their solicitor, for watching and protecting the interest of the estate, upon claims of creditors brought into the master's office ; held, that they were entitled to do so, as it is the duty of the executors to protect and look after the interest of* the estate upon these enquiries, and this they do, not strictly as accounting parties, but in virtue of their representative character. Re Babcock's Estate, 8 Grant. 409. G— .Misconduct of Executors. Where executors are charged with misconduct, a bill must be filed, lb. 7 — Foreign Administrators. Power and obligations of foreign administrators dealing in Canada with foreign assets, and settling claims of Canadian credi- tors considered. Grant v. McDonald, 8 Grant, 468. 8 — Injunction against. Injunction awarded at suit of the heir, to restrain execution against the lands of a deceased person in the hands of his administra- tor, the defendant having admistered to the estate in England only, and there being at the time no Canadian administrator, lb. 9 — Statute of Limitations. Where a cause of action accrues in the lite-time of the debtor, the statute b^ins to run against his estate, notwithstanding there is no executor or administrator, but when the cause of action does not accrue until after his death, then the time does not begin to run un- til there is a personal representative who can sue and be sued. lb. 10 — Executor de son tort. Km executor de son tort cannot by giving a confession of judgment or making payments on account of a debt, or by any other act of his, give a new start to the statute as against the rightful administrator, or the parties beneficially interested in the estate. Ih. 1 1 — Costs— parties. A testator devised his real estate to his widow, and in the event of her re-marriage, to his children. The widow afterwards filed a bill against the executors, charging mal-administration, which was disproved, and on the contrary that they had benefited the estate by their management of it ; and the master having found that the person- al assets were insufficient to discharge the remaining liabilities, the Court directed the executors to receive the costs out of the Mtate, that a competent portion of the real estate should be sold, and EQUITY DIGEST. 19 that the testator's children should be made parties to the sait in the master's office, for the purpose of retaking the accounts, if desired by the guardian, they not being bound by the accounts already taken, and under the circumstances refused the widow her costs. Norrit V. Bell, 9 Grant, 23 12 — How far one of several executors ia liable for default of his co-executor. The testator A. M. had been in partnership in business with one J. A., and died without any settlement of accounts, appointing A. P. and L. his executors. The testator had, besides his share of the partneship assets, a large amount of personal property, and also real estate, which he specifically devi^'cd to his four sons, then infants, and appointed A. their guardian. The executors received the rents of the real estate, and applied them to the maintenance and education of the testator's children. The real and personal estate having proved ins^ufficient for the payment of debts, the ex- ecutors were held liable to account to the creditors of the testator for the rents received by them and applied to the maintenance and edu- cation of the children. Harrison V. Patter ion, 11 Grant, 105. 13 — Executofs right to he recouped for moneys advanced. Executors finding it impossible to wind up the estate of the testa, tor so long as certain partnership accounts remain unsettled, became personally liable to the surviving partner for the payment of a sum supposed to be equal to his share in the estate, and he thereupon re- leased to them all his interest in Ihe partnership estate, which was, by them, wound up, and the proceeds applied in liquidation of the testator's debts. On a reference to the master, this arrangement was found beneficial '"^o the testator's ( ntatc, and the same was so declar- ed by the Court, and the executors were held to be entitled to a first charge on the proceeds of tl»e estate for the moneys paid by them to the surviving partner, and for what they still owed him on their per- sonal obligation, as also the amount of commission allowed them by the Judge of the Surrogate Court, lb. 14 — Application oj assets. The widow of an intestate having obtained letters of administra- tion, received and got in his personal estate, went into occupation of the real estate, received the rents and profits thereof, and spent a considerable sum in improving it. She also maintained the infant Leirs of the intestate, to whom no guardian had been appointed. Held, that the personal estate and the pro^e^ds or profits of the real ill 4 M 20 EQUITY DIGEST. r estate come to her hands must first be applied to payment of debts, then to reimburse her for the sums spent in the infants' maintenanoe. No allowance was made to the administratrix for her improTements to the realty, but «he was not to be charged with any increase in rental caused by such improvements. Re Brazill, Barrjf v. Bra zill^ 11 Grant, 253. 15 — Costs. A legatee filed a bill against executors and another person, be- tween whom and the executors it was charged improper dealings had taken place with the estate. The chaises so made were not sustain- ed in evidence, and the plaintiff was therefore ordered to pay the costs of the defendants to the hearing, and allowed only costs of and subsequdnt to decree; and cross charges of improper conduct having been brought against the plaintiff by other legatees made parties to the suit, and not substantiated, the costs incurred in resisting such charges were directed to be paid by the parties making them. Millar v. McNanghlon, 11 Grant, 308. 16 — Executor'' s interest. Although the rule is, that executors or trustees will be charged with what they ought to have made, with what they actually did make, or with what they must be presumed to have made out of the moneys of the testator come to their hands ; still where such moneys had, before the repeal of the usury laws, been invested in first-class se- curity at the rate of six per cent, per annum, the Court, on appeal from the master's report, considered the executors where not called upon, at the risk of being charged with the extra amount of interest, to call in those moneys and re-invest the same at the rates, as the evidence shewed moneys could be loaned at. It also appearing that part of the moneys of the estate had been loaned by the excutors to themselves, they were charged with the higher rate of interest there- on. Smith V. Roe, 11 Grant, 311. 17 — Negligence. Where the report of the master shewed that the conduct of the executors in neglecting to prepare accounts, or afford information reasonably called for by the legatees, had given rise to the suit, the Court charged the executors with the general costs thereof, but set off against such general costs, certain costs occasioned by un- founded claims set up by the bill, lb. EQUITY DIGEST. 21 18 — Executors. — Physical iveakness of testator. — Acknow- ledgment of debt. — Statute of limitations. A testator a short timo before his death, in 1841, and during his last illness, signed a statement by which he acknowledged himself ic- debted to his father, one of his executors, in the sum of £73 8s 5d. His will contained direct authority to his executors to sell his real estate for the payment of his debts. In 1843 the executors obtain- ed an administration order, and the father sought to have his claims against the estate, including the amount so acknowledged, paid by a sale of the land. These claims were resisted by tho widow and the heir-it-law, the testator having been in a weak and dying state when he signed the acknowledgment. The father had, until about 1861, been in the occupation of the land, and a surcharg? was put in against him for the rents and profits. Held, that mero physical weakness, however great, without proof of mental incapacity, is not sufficient to render invalid an acknowledgment of debt ; that the statute of limitations does not bar the claim of au executor against the estate of his testator; that an executor is not justified in keep- ing an estate open and unadministered, in order to obtain interest upon a claim which he has against the estate, and that delay on the part of the executors to sell lands which by tho will are saleable for payment of debts, will render the executors liable for rents and profits Eme$ V. Ernes, 11 Grant, 325. 19 — Negligence or misconduct of administrators. S took out letters of administration to the estate of an insolvent at the request of a simple contract creditor, and was on the following day served by the latter with a summons for his debt. The admin- istrator took no steps to ascertain and made no enquiry whether there were any other debts, but allowed judgment to go against him by de- fault, and all the chattel property of tho inestate to be sold under the execution. Held, at the suit of a specialty creditor that the admin- istrator's conduct did not entitle him to set up the defence of no' notice of the specialty debt, and that the amount produced by the sale must be applied in due course of administration. Hutchimon V' Edmison, 11 Grant, 477. 20 — Interest when chargeable against an. Executor. — Costs. The report in an administration suit found £1403, chargable against an executor. Of this sum £1247 was for the price of land claimed and received by the executor, the testator's son as heir and his claim to this had long been aoqaiesoed in by the other parties in- M jff^^ ' 22 EQUITY DIGEST. (ereated till held otherwlBe in this suit, when this purchase money was declared to pass under the testator's will to the claimant and others as legatees. A sum of £133, the value of the testator's chat- tel property left by this executor in the hands of the testator's widow and finally lost to the estate, made up the remainder of the sum charged to this executor, except a balance of about £34. Under the oiroumstances the executor was allowed his costs as of an administra- tion out of the estate, and was not charged with interest on the balance in his hands, which he was required to pay into court within a month after deducting therefrom his share of the estate aa legatee. Blnin V. Terrylmy, 12 Grant, 221. 21— Application by Legatee to administer eatate of deceased —General order XV.— Notice of motioii not referring to affidavits filed. On an application under the general orders of 3rd June, 1853, No. XV, on behalf of a legatee under the will of the deceased for an administration of the testator's estate, [Mowat V. C,] held, that the practice of finding an affidavit or affidavits, and referring thereto in th« notice of motion was two firmly established to admit of alter- ation ; the motion was therefore refused with costs. Re Hamilton, 2 U. C. L. J., N. S. 48. 22 — Practice as to. Without bill filed, see Taylor's orders, 82 ; notice of motion for, lb 82, 83 ; length of notice, lb 82 ; on whom to be served, lb 82, 83, special directions in decree, lb 83 ; in oases of separate applications, lb 83 ; evidence in, lb 83 ; when bill must be filed, lb 83, 84 ; how far executors chargeable, lb 83 ; action at law stayed on, lb 83 ; appointment of receiver and injunction ordered in, lb, 83 ; executors may obtain, lb 84 ; in what eases generally granted, lb 84 ; costs to be borne by estate, lb 84, 85 ; to what extent, lb 85 ; form of motion for, lb 235, 316; form of accounts decreed on, lb 238, 328 ; applica- tions for in chambers, lb 113. Sbe AoicrNisTRAToa— Administrtion Order — Administra- tion Suit— Insolvent Act 1864, ADMINISTRATION ORDER. Evidence, (. Kuried women, 3. When refused, 4. Wilful neglect, 1, 2. 1 — Willful default. Whereanorderior the administration 0£' a deceased person's es- tate is granted upon the application of any person beneScIally inter- EQUITY DIGEST. 28 ested therein, the decree will not contain a direction to inquire as to wilful neglect and. default. Harriton v. McGlathan, 7 Orant, 531. 2. Where an executor or administrator applies for an order to administer the estate of the testator or intestate, the account will be directed to be taken of what he has received, or which, but for his wilful default mi<;ht have been received. Ledgerwood v. Ltdger- wood, 7 Grant, 584. 3 — Married Women. Where a married woman applied, as devisee and legatee, for an ad- ministration order, by motion, without bill, and it appeared that an award had been made, professing to determine all matters between the executor and the legatees interested in the estate, and it was said that the husband and wife had been parties to the reference, the wife acting therein through her husband as her agent, which they denied. BeJd, that the validity of the award could not be tried on the motion, and that a bill must be filed, more especially as other legatees, not parties to the motion, were interested in maintaining the award. Nudel v. Elliott, 1 Cham. Rep., 326. 4 — When refused. An administration older will not be granted where the grounds on which it is claimed are properly the subject for a bill. Cameron V. Macdonald — in re Macdanald, 2 Cham. Rep., 29. 5 — Evidence. Notice of motion for an order to administer the estate of an intes- tate had been served on his widow as administratrix, the application was refused, there not being any evidence produced, showing that letters of administration had been grunted to her. [Spragge, V. C] In re Marshall. Fowler v. Marshall, 1 Cham. Rep., 29. ADMINISTRATION SUIT. Delay, 3. Evidence, G. Money i>ald to save infants' estate, 2. Next of kin, 4. Parties, 4. Practice, \. 1 — Practice. Although proceedings in the master's office may, under the general order, be taken ex parte against a defendant, who has allow- ed a bill to be taken pro con/esso against him, that mode of proceed- ing is irregular where an administration order has been obtained upon notice without bill filed. Jackton v. Matthews — in re PatUr- ton^ 12 Grant, 47. i ,• 24 EQUITY DIGEST. 1 — Money paid to save infanta' estate. Where the plaintiff had, at the request of the mother and natural guardian of infant heirs, advanced money to pay debts of their ances- tor to save the cost of sait therefor. Held, that he was entitled to sustain a suit for administration as creditor. Gkus v. Muruen, 12 Grant, 77. 3 — Delay. In 1855 a motion had been made upon notice for an administra- tion order, under the orders of 1853, since which no step had been taken in the matter, and an application was now made to the Jndge in Chambers for a direction that the Registrar should draw up the order, but the application was refused, the cause having been allowed to sleep for four years, all parties were required to be served with a new notice.— [Spragge, V. C] In re Forreater, Mesmier V, Forrmter, 1 Cham. Rep. 29. 4 — Parties — Next of kin. Next of km are not necessary parties to an administration suit, but should be served with an office copy decree. Englith v. Enfflitk, 1 Cooper's C. & P. R., 42, and 12 Grant, 441. 5 — Evidence, &c. This was an application by a creditor for an administration order under Order XV. No evidence was furnished beyond production of a certified copy of the will, showing the defendant to be executor. Edd, that although strict proof of the claim, such as must be given in the Master's office, is not necessary, yet piima facie evidence of the applicant's having a right to call for the administration of the estate, must ^ e furnished, and the motion was refused with costs. In re Clarke, 2 Cham. Rep., 57. i^KR Infants— Executors. ADMINISTRATOR, Commission, fi, 8. Costs, 7. De bonis non, 4, 6. Grant from tlie Crown, 2. Interest, 3. Retainer of moneys for costs, 9. 1 — Trustee. The administrator of an estate purchased from the government ia his own name, and with his own funds, land in which the intestant as occupant, had a pre-emptive right, at the same price as had been agreed to sell to the intestate, but being an administrator the govern- meat did not require him to pay the value of improvementt mad* EQUITY DIGEST. 25 by the intestate. Edd, that he was a trustee for the heir-at-law of the intestate and under the c'.^umstunces could t>ot purchase ior his own benefit. Foster v. AIcKinnon, 5 Grant, olO. 2 — Grant from the Crown. The putchaser of limd from the Crown died inestnte, without h'lV- in<' procured ii patent tor the land, or piiJ up the instaliuents of purchase money; a youn}j;or broiher, wi'ho^^t the knowledge cf the heir-«t-iuw, obtiiiued letters of aduiinistrution to the personal eflFeots of the intestate, «ncJ substqueiitiy iippHed to the <;overniiient for and upon p:iyiuent of the arrears of purchase money, obtjined a grant of the land to himself, on the ground that the i reater portion of the improvements on the land had been made by him; and that he had maintained his lather anc* mother while rediding on the pro- perty. Upou a bill filed by the eldest brother and heir-atlaw, ngainst the grantee of the Crown, and others, claiming under him, it was shewn that Ihe deceased alone, had cultivated the land, and support- ed the parents ; and that the grantee had never made the property his settled place of residenco. The Court under the cir- cumstances, declared the heir-at-law entitled to ihe estate, notwith- standing the grant from the Crown, and decreed him relief in accordance with such declaration, and [ per Esten, V. C.,] that under no circumstances could the administrator be allowed to pur- chase the property for his own benefit, Lamo^' v. Lamont, 7 Grant, 258. 3 — Interest, dr.. The principal upon which an administrator should be charged with interest on funds belonging to the estate, considered and acted oa McLennan v. Ileward, 9 Grant, 178, 4 — De bonis non. An administrator de bonis non, having obtained r. decree against the representatives of a deceased administrator for an account of his dealings with the estate. IMd, that he was entitled to charge the representatives with interest &<>., in the same manner, and to the same extent as one of the next of kin might have done. 1 b. 6 — Commission. Where the apent, after the decease of the principal intestate, had procured letters of administration to his estate, and subsequently the person who became possessed of whe assets, as the personal represen- tative of the administrator refused to account, and a bill was filed to eoforoe it ; the Court, under the oircumstaDces, there being no evi- ■I. i 26 EQUITY DIGEST. II I dence of any improper dealing with the estate, either by the admin- istrator or those representing him ; allowed the defendants a commis- sion of 5 per cent, on all moneys received and paid over or properly expended by themselves or their testator, and 2^ per cent, on aU moneys received by him or them, but not yet paid over, but refused the costs of the suit. S, C, 9 Grant, 279. This Court will not refer it to the Surrogate Judge to settle the amount of compensation or commission to be allowed to an adminis- trator or executor ; but having possession of the subject matter of litigation, will finally dispose of the rights of all parties, lb. 6 — De bonis non. Whether an administrator (fe bonis non can call in question the ad- ministration of the predecessor in office. Quere. Tiffant/ v. Thomp- son, 9 Grant, 244. 7— Costs. Where the plaintiff made charges of improper conduct against the administratrix, which were not sustained in evidence, he was ordered to pay ail costs other than of an ordinary administration suit. Hodgins v. McNeil, 9 Grant, 305. 8 — Commission. Where an administrator who bud acted as agent for the intestate during his life-time, had, with the assent of the deceased, used mon- eys belonging to him, without any attempt at concealment, as to his so using them, the Court refused to take the account against the ad- ministrator with rests, and the master having allowed the estate of the administrator, a commission of 5 per cent, on moneys passing through the hands of the administrator in his life-time, the Court re- fused on appeal to disturb such allowance. Ih. 9 — Retainer by administrators of funds in their hands for pOAjment of costs due them — Jurisdiction. A Bill had been dismissed, with costs to be paid by the plaintiff". Two of the defendants were administrators, and as such had funds in their hands to which the plaintiff was entitled as one of the heirs and next of kin of the intestate. The defendants had been un- able to obtain the costs by;? fa, and filed a petition asking to be al- lowed to retain the funds in the hands of the admistrators. Held, that the Court had no control over the funds, and the petition was dismissed with costs. Black v. Black, 1 Cham. Hep., 360. The Court even after a view. Wher trustee who 1 ercise a great than if the oi the oiroumst! Sbk Mun: SXB Abso For abscoi foreclosure a davit to obta form of, lb, 1 of, lb, 329; of, 118 ; hovJ Foreim, 3. Jurat of, 1. 1 — Jurat ( In affidav it is sufficiei of service n Grant, 109. 2 — Sweari Where it ing affidavit miles from i was to be sworn befor in Lower Oi 3 — Foreic, An affidi L. gland is I! HB" EQUITY DIGEST. ADMISSION OF EVIDENCE. 27 The Court will not refuse to admit evidenoe recently discovered, even after a cause has been set down for hearing on a petition of re- view. Where a cause is against the representatives of a deceased trustee who had been defendant, the Court in its discretion will ex- ercise a greater degree of indulgence in the reception of new evidence than if the original defendant himself, who should have known all the circumstances, was alive, Small v. Eccles, 2 Cham. Kep., 97. ADVANCE. Sek Municipal Loan Fund. ADVERTISING. SxE Absoondinq Defendant — Absent Defendant. ADVERTISEMENT. For absconding debtor, see Taylor's Orders, 60 ; for defendant in foreclosure and specific performance suit, lb, 60 ; requisites for affi- davit to obtain, lb, 61 ; of notice of motion for order /)ro con., lb, 75 ; form of, lb, 235, 312; for creditors by master, lb, 141, 163 ; form of, lb, 329; for next of kin, lb, 163 ; on sale, draft, 117; contents of, 118 ; how settled, 118; form of, 330. AFFIDAVIT. Foreira, S. Jurat of, I. Practice as to, 4. Swearing in Lower Canada, 2. 1 — Jurat of. In affidavits of execution of documents and others of a like nature it is sufficient to use the form of jurat generally used. [Affidavits of service may also be sworn in same manner.] Re Auaebrook, 4 Grant, 109. 2 — Swearing affi,davit in Lower Canada. Where it appeared that no commissioner under statute for tak- ing affidavits to be used in Upper Canada resided nearer than 210 miles from a place in Lower Canada where an affidavit of service was to be made, an order was made directing the affidavit to be sworn before one of the ordinary commissioners for taking affidavits in Lower Canada. Gould v. Hutchinson, 1 Cham, Rep., 188. 3 — Foreign affi,davit. An affidavit purporting to be sworn before the Mayor of a city in L^glaad is inadmissible in this Court without proof of his signature i I •■ ms 28 EQUITY DIGEST. and authority to administer oaths; but where the affidavit is sworn out of England it is receivable as evidence in the Courts of this coun- try under the provisions of the imperial statute, 14 and 15, V. C. 99. GraTuim v. Macphmon, 1 Cham. Rep., 85. 4 — Practice as to. See Taylor's Orderg,--to be expressed in first person, 132; read over to deponent, 132 ; general directions as to, 132 ; must contain address and addition of deponent, 132 ; except parties, 132 ; when irregular affidavits allowed, 132 ; to be divided into paragraphs, 202 ; to show sources of knowledge, 211; to be taken oflF the files when scandalous, 195 ; costs of when disallowed, 195, 592 ; taxation of when too long, 195 ; cross examination on, 94, 95, 134 ; jurats to, rule as to form of, 133; forms of, 309, 310 ; when sworn out of jur- isdiction, 132, 223 ; when originals to bo used, 131, 208 ; and office copies to be furnished, 131 ; of service of bill, 56, 223 ; requisites for advertisment of absent defendant, 61 ; on order to produce, 92 ; by whom made, 92 ; hearing cause on by consent, 93 ; on motion for special injunction, 103 ; must set forth all the facts, 104 ; on in- terim injunction, 132; on motion lorjjro con foreclosure, 112; on notice of motion must be filed, 129, 131, 208 ; and mentioned in the notice, 129; rules as to reading, 129, 131 ; in reply, 229, 131 ; fil- ing of, 128, 208; oral evidence on, 129 ; on motion for decree, 85, 86, 87; on motion for decree before answer, 87; at hearing what may be proved, 90, 91, 93; using in the master's office, 137, 138 ; to vary accounts, 116, 140; by bearer of documents, 168; on ap- pointmentof guardian, 185; of sureties to error and appeal bond, 294 ; forms of, 297 to 309, 319. Ou a motion to commit for breach of an injunction it is not neces- sary that the affidavit should state that the wrii was under the seal of the Court. Farewell v. Wallbridge, 3 Grant, 628. See Alimony— Final Order— Infant— Injunction— 3Iar- RiED Women— MoRTQAGE. AFFIKiMATION. See Taylor's Orders as to, act respecting, 263; who may affirm, 263 ; who may administer, 263 ; reception of, 263, A i t <1 it.m EQUITY DIGEST. 29 AGENT. To mD and convey, L Building Society, 2. I To receive money, can give a receipt, 8. I— -Agent. Where an agent is empowered not merely to sell, but " to sell and convey ", authority to receive payment of the purchase money is implied. Farquharson v. Williamion, 1 Grant, 93. 2 — Building Society — Seal It is not necessary that the seal of a Building Society should be affixed to an authority to its agent to sell, the entry in the books of the Society is s ifficient for that purpose. OtBorne vs. Farmers l EQUITY DIGEST. 35 was proved that, after his return, ho had said, that he would not live with her, that he was afraid they would never agree, and that he might do something which would subject him to punishment — some- thing which might bring a ropo round his neck. Held, under these circumstances, that the wile was entitled to a ducree for alimony. Severn v. Severn, 3 Grant, 431. 17 — Desertion. Although in England the niuro iuot of desortloti by the husband will not entitle the wife to a decree for alimony, still, as in this coun- try the Court cannot decree restitution of conjugal rights, desertion would be sufficient to warrant a decree for alimony. (^Semble.) lb. Desertion, although insufficient in itself to warrant u decree in England, does when coupled with other acts of cruelty, form u ma- terial ingredient in determining a wife's right to relief, lb, 18 — Consent. This was a suit for alimony, The defendtiiit having signed a con- sent to an order being made, directing him to pay the plaintiff a certain sum for alimony, a motion was made for an order in terms of consent; but the Chancellor remarked, if this order were made as consented to, it would amount in reality to a decree in the cause, the matter must bo brought before the full Court. Craig v. Craig, 1 Cham. Rep., 41. 19 — Affidavit. On an application for an order for interim alimony, the affidavit as to the marriage, should state such particulars as to it (by whom sol emnized, &c„) that the Court may judge for itself, whether it has been duly solemnized or not. Taylor v. Taylor, 1 Cham. Rep., 234. 20— Costs. The test in regard to the allowance of costs in alimony suits, ap- pears to be whether or not they have been vexatiously incurred. Therefore, where notice of examination and hearing was given and afterwards countermanded, upon its coming to the knowledge of the wife, after notice had been given that the husband intended to pro- duce a witness from abroad to prove adultery on her part, while on ship-board ; what was done having been done in good faith and the countermand given in order that she might be prepared to rebut so serious a charge against her, it was deemed reasonable that the costs in relation to such notice and countermand should be paid by the husband to the solicitor of tho plaintiff. Ghnnie v, Glennie, 1 Cham. Rep,, 155. i • If- EQUITY DIGEST. 21— Motion for interim alimony.— Evidence thereon. On an application for interim alimony and costs, proof of the marriage is all that is required; it is not necessary to prove any of the other allegations in the bill. Nolan v. Nolan, I Cham. Rep., 368. 22— Interim. In an alimony case where the marriage is admitted, or proved, in- terim alimony will be granted almost as a matter of course, and not- witLjianding that defendant swears he is willing to receive and main- tain the plaintiff. Carr v. Carr, 2 Cham. Rep., 71 . 23 — Condonation. Where the plaintiff in an alimony suit, after un order for iDterini alimony had been made, returaoJ to her husband's house and resid- ed there for some time, but was afterwards obliged to leave by rea- son of cruelty ; a motion to set aside the interim order on the ground of condonation was refused with costs. Maxwell v. Maxwell, 1 Cham. Rep., 27. 24h—Pleadi'n^. A bill for alimony should allege that the husband has refused to receive his wife. It is not sufficient to allege merely that they are living apart. Wahh v, WaUh, 1 Cham. Rep., 234. 25 — Offer to support no bar. An offer by a husband to support his wiie separately is no bar to a suit for alimony, and an affidavit of the husband shewing his willingness to support his wife cannot be received. Weir v. Wtir, I Cham. Rep., 194. 26 — iTicreasing alimony. Allowance of alimony increased from £25 to £200 per annum, it being shewn that the husband's income had increased to such an ex- tent as to justify the additional allowance. Severn v. Severn, 7 Grant, 109. 27— Issue of writ ne exeat provlncia under 20 Victoria, c. 58, s. 3, in suit for alimony— Amount of bail. The bill was filed 24th October, 1857, for alimony, and pruycd for a writ ne exeat provincia to issue. Defendant was possessed of £225 invested in stock, and in receipt of a salary of £100 a year. This was the first application under the act. i EQUITT DIGEST. 37 Blake [on the day of filing tho bill,] applied for the issue of the writ on an affidavit verifying the facts stated in the bill, and show- ing the amount of defendant's property and his intention of leaving the Province. Spragge, V. C, granted the bill, but considered it advisable to limit the amount to £200. [Since this case u larger sum is allowed to be mentioned in the writ, in proportion to the defendant's means. — Note by Reporter.] Ham V. Ham, 4 U. C. L. J., 2G1. 28 — Jurisdiction of Court i)i regard to. Set Taylor's orders, 12 ; writ of arrest may issue for, 12 ; 260 j desertion ground for, 13 ; injuries, &c. ; presumption of cruelty, 13 ; interim granted />cwrfen^e lite, 13; not set aside by wife's temporary return, 13 ; orders for, not made in chambers even by consent, 13 ; may be increase(V 18 ; husband's income guide, 13 ; wife may file bill in her own name, 54 ; always gets solicitor and client's costs in suit de die in diem, 340. See Costs — Income. ALLOWANCE. See Dow jb— Executors. AMENDING. After answer, 2. After decree, 1. After demurrer, 13. After injunction, 4. After notice to disiuiaa, H. After replication, 3. Amending decree. Hi. At the hearing, 12. By way of supplement, 11. Correcting description, 9. Effect of on injunction, 16, General order 9, 7. In respect of new matter, 10. When leave refused, 8. Where facts changed before answer, 18. Without prejudice to motion for injunc- tiuu, a. without prejudice to order pro con, 6. Where di'suriptiun omitted, 19. 1 — Amending hill after decree. [1] The Court will not grant an order to amend a bill after a decree has been made in the cause. Barrett v. Gardner, 1 Cham. Rep., 344. [2] On an aiipiication ex 2iartc for leave to amend, after decree, by correcting the description of the mortgaged premises. Held, that the application could not be granted ex parte, and quaere, wheth- er a bill can be amended at all after decree. In Barrett v. Gardner, Cliam. K. 344, the Chancellor refused leave to amend, whilst in Foy V. Spaffbrd, Mr. V. C. Spragge granted it. Under the circumstances, the application was refused, and the plaintiffs advised to file a new bill. Bank of Montreal, v. Fewer, 2 Cham. Rep., 47. I 38 EQUITY DIGEST. 2 — After amiver. A bill was filed against three defendants, A, B and C, one of whom C was out of the province at the time. An order was obtained for leave to serve C by substitutional service on A and B for the pur- pose of a motion for injunction, A and B answered the bill but C did not, the bill was then amended and notice of motion for injunction served on A and B for themselves and together with the bill, on them for C under the order for service. After the motion was disposed of the plaintiff took out an order dismissing the bill against A and B, and on the same day an ordor to amend, under which a re-engross- ment of the bill was filed and served personally on C. ; this order to amend was styled in the original suit and worded to amend the ** office copies" of the " defendants." Held, that it was a second ord,er to amend after answer, within the meaning of order, 9 of June, 1853, sec. 12, and it was on the application of C discharged with costs as irregular. Kemp v. Jones, 1 Cham. Jlcp. 374. 3 — ATiiending bill after replication. After replication had been filed, the plaintiff served a notice to amend his bill by adding parties, but raised no new issues. It was held that the plaintiff might amend his bill by adding a defendant and making the amendment set out in his notice of motion. For this purpose it was considered not necessary to withdraw the replica- tion. To do so is necessary only that the plaintiff may reply de novo to the answers of the new defendant, and in this case no new issue raip d. It has always been a practice (o permit a plaintiff to amend for the limited purpose of adding parties without withdrawing his replication. (Srattle v. Waterman, 4 Sim. 125, Brian v. Wastel, 18 Jur., 446.) The plaintiff must, however, pay tlie costs of the application. Johnson v. Cowan, 2 Cham. Rep., 13. 4 — Amending after injunction. Where the plaintiff had obtained an iujunctiou, and afterwards amended his bill, but without changing materially tho allegations therein, it was held not to be a waiver of the injunction. A reference in the notice of motion to the injunction as of a cer- tain date, which date was not that of the writ : held not to be fatal. McDonell v. McKay, 2 Cham. Rep., 14. 5— Amending ivithont prejudice to order pro confesso. Where the plaintiff had obtained an order pro conjesso against one of the defendants, and afterwards applied to amend by adding part. EQUITY DIGEST. 39 ies without prejudice, the motion was refused, Berchmer v. Benson. 1 Grant, 92. Where an order to amend has been taken, but through inadvert- ance, not without prejudice to an order pro con/esso previously ob- tained, the Court, if the case is a proper one to have granted an or- der to amend without prejudice in the first instance will grant such an order 7iunc pro tunc so as thereby to revive the order ^jro confesso, Ruttan V. Smith, 1 Cham. Hep. 296. (3 — Without prejudice to motion for injunction. Amendments of a material character will not be allowed without prejudice to a pending motion for injunction. Davy v. Davy, 2 Cham. Rep. 81; 7 — General order 9. General order 9, Sec. 14, requiring proposed amendments to be embodied in notice of motion is imperative, and the length of the amendments will not excuse non-compliance with it. Upper Canada Mining Company v. The Attorney General, 1 Cooper's, C. & P. R.. 58. 8 — When leave refused. The Court will not grant leave to amend a bill where the pro- posed amendment would render the bill of a diflferent nature. Crawford o. Bradhurn, 1 Cham. Rep., 280. 9 — Correcting De-scriptio n . The plaintiffs filed their bill to impeach a conveyance of lands in N. to the wife of one of the defendants ; in describing the lands by motes and bound,s by mistake, only a portion of the lands in N. were included, which portion was afterwards lost to the parties by being sold under a power contained in a mortgage. Under these circumstances a motion for leave to amend the bill by inserting the property in N, not included in the former description was granted. Wallace v. Ford, 1 Cham. Rep,, 287. 10 — In respect of matter arising/ subsequent to the Jlling of bill. The plaintiffs had obtained a judgment at law against P, one of the defendants upon confession, and as judgment creditors under that judgment had filed their bill to set aside a prior judgment of other defendants, and had moved for, and obtained an injunction to restrain a sale of the goods of P under such prior judgment. After the in • junction had been granted, the plain tiffti obtained another judgment i ■■i'i^ f M W'. fl • ' §. ^.^Mi 40 EQUITY DIGEST. against P., not upon confession, but by default. Under these cir- cumstances. a motion for leave to amend the bill by alleging the recovery of the second judgment was granted. Montreal Bank v. Auburn Exchange Bank, 1 Cham., Rep,, 283. 11— Amendment by way of supplement Apart from any general orders this Court has power to permit an amendment of its own records ; so, that though the order of 6th June, 1862, may not provide in some exceptional cases for the intro- duction into a suit of matter arising subsequent to its institution, such matter may be ordered to be introduced upon motion for leave to amend the bill. Baird v. White, 1 Cham. Rep., 275. 12 — At the hearing. Amendments may be made at the hearing of causes, under the new practice as at nisipriux. Fraser v. Rodney, 11 Grant 426. 13 — After demurrer. Where by the order allowing a demurrer leave is given to amend the bill, and the plaintiff afterwards neglects to amend, the proper course for the defendant to take in such a case, is to move that the plaintiff do amend within a given time, otherwise that the order to amend may be discharged and the demurrer allowed. Nelson v. Rob- ertson, 1 Grant 530. 14 — After notice to dismiss. An order to amend having been obtained and served after service of a notice of motion to dismiss was deemed a sufficient answer to such motion. Hill v. Hill, 2 Grant 692. 15 — Efect of amending hill on injunction. After service of an injunction the plaintiff amended his bill and added a new defendant, who was a mere trustee for the plaintiff without, however, altering the f'-ame of the bill or the prayer. Sub- sequently to the amendment the defendant committed a breach of the injunction and the plaintiff moved to commit the defendant. Held, that the amendment was not a waiver of the injunction. McDon- nell V. McKay, 12 Grant, 414. 16— Amending decree.— Motion or petition. Where a necessary direction is omitcd in a decree, tho Court will amend it although the decree has been passed and entered. In such a case the proper mode of proceeding is by a petition. Moffat V. Hyde, 6 U. C. L. J., 94. I'j— After d( Qtmre. Wl not be amendet Power, 2 U. C IS— Where f Whore the when the def bring in other City Bank v. J. 19—Wliere d On a motion tion of the plai ment of costs. See Amkndin Adding parties, 4, 9 Coato, 1. Motion no answer t( Kupplementai matte Vaca.ion, 10. Waiver of contempt What plaintiff must Where leave rcf uicO 1— Costs. Where any and it is neces must pay the < 2— Motion t A motion Ic of prosecution i—What ph A. plaintiff, must show thi diligence had 4 — Adding (1) A roc leave to ameni tiff added the ■ f. } !■, t- EQITITY DIGEST. 41 17 — After decree. Qaoere. Whether a bill can be amended after decree. It can- not be amended on an application, ex parte. Bank of Montreal v. Power, 2 U. C, L. J. N. S., 302. 18 — Where facts changed before answer. Whore the state of f'lcts mado by an original bill does not exist when the defendant answers, the plaintiff cannot amend so as to bring in other facts to keep the bill alive, but must file a new bill. City Bank V. Arnsden, 7 U. C. L. J., 293. 19 — Where description omitted. On a motion to take a bill off the files for irregularity, the descrip- tion of the plaintiff being omited, leave was given to amend on pay- ment of costs. Hill V. McGuire, V. C. Esten, 7th Feb., 1862. AMENDING DECllHE See Amending, 1— See Mortqage. AMENDMENTS. Without prejuilice to injunction, 11. On abatement— see abatement, 3. Draft of, should be laid before Court, 13 At the hcarint,', 14, 17. At a late stage, 15. After notice of motion for injunction, 10. Practice as to, 18. AAding parties, 4, 9. Costa, 1. Motion no answer to motion to dismiss, 2. Kupplementat matter, 8. Vaca-ion, 10. Waiver of contempt, 5. What plaintiff must show, 3. Where leave refused, 7, 12. 1 — Costs. Where any error occurs in drawing up any of the papers in a cause, and it is necessary to have the mistake rectified, the party applying must pay the costs of the motion. Emmons v. Crooks, 1 Grant, 558. 2 — Motion to amend no answer to Motion to dismiss. A motion to amend is no answer to a motion to dismiss for want of prosecution. McNahh v. Cwynne, 1 Grant, 127. 3 — What pla int iff must shoiv. A plaintiff, moving to amend after the timo limited by the orders, must show that the order could not be complied with, though due diligenee had been used. lb. 4 — Adding parties. (1) A redemption suit having stood over at the hearing, with leave to amend by adding parties as plaintiffs or defendants, the plain- tiff added the new parties as co-plaintiffs, and amended that part of 1 '. jM id. li m 42 EQUITY DIGEST. the prayer of the bill which asked that the plaintiffs might be direct- ed to surrender and deliver up possession of the mortgaged premises to one of the then plaintiffs, so that in the amended bill it ran thus— that the defendants might be directed to surrender and to convey or auign, for the residue of the term therein created as aforesaid and deliror up possession of the mortgaged premises to all the plain- tiffs to the amended bill. Held, that this amendment was not so un- connected with the order as to render a motion to expunge the same proper. Chisholmv. Sheldon, 1 Grant, 294. (2) When a cause stands over with leave to amend by adding parties, the plaintiff has no right to introduce any amendment, though immaterial, that is unconnected with such leave. lb. 5 — Waiver of contempt. An amendment of a bill by adding parties, requiring no answer from the defendant, is a waiver of process of contempt for want of answer, and in such a case the Court will, on an exparte motion or- der the defendant's discharge. Thrasher v. Conolly, 1 Grant 422. 6 — Where solicitor absconded. Where the plaintiff's solicitor absconded before the time to amend the bill, as of course, had expired, and his departure was not known to the plaintiff till after^-ards, and due diligence appeared to have been used by the plaintiff to proceed with the cause after becoming acquainted with such departure, the Court granted leave to amend on payment of costs, Carney v. lioulton, I Grant 423. 7. — Where refused. The Court refused to give special leave to amend by introducinr. new matter where the matter of the proposed amendment could be proved under the pleading without such amendment. Wilmoti v Boulton, 1 Grant, 479. 8— Supplemental matter. • After a decree had been pronounced in a suit of foreclosure the plaintiff discovered that portions of the u.ortgaged pren.ises had been sold by the mortgagor before bill filed. Held, i„ accordance with decisions by Esten V. C. per Blake, C, that the purchasers of such portions might be brought before the Court by amendment, and that the proper mode of proceeding was by petition, although, but , for those decisions, he would have thought a motion for that puLse the proper proceeding. Rumbk v. Moore, 1 Ch^m. E^p 59 11 — Order tc 12— Where 1 ^!!m EQUITY DIGEST. 43 9 — Adding a party. Where a plaintiflF desired to amend by adding a judgment creditor who had assigned his claim to the plaintiff as a party defendant, leave was given for that purpose, dispensing with service of the de- fendants already before the Court. Boomer v, Gibson, 4 Grant, 430. Where after the time for amendment as of course an order is ob- tained to amend by adding a party " with apt words to charge him or otherwise as plaintiff shall be advised," the plaintiff is not at liberty to make any amendment whatever, except such as is required for the purpose of introducing the additional party. Gillespie v. Grov0r, 2 Grant, 120. 10 — Vacation. — Computation of time. The time appointed by the Court for vacation at Christmas is not excepted in the computation of the time allowed for amending the bill, the fifth of the orders of 1853, having reference to the long vacation only. [Mr. Spragge, V. (.' ., after consulting with the other members of the Court ] Connolly v. Monfffomery, 1 Cham.Kep., 20. 11 — Order to amend vAthout prejudice to an injunction. Where the time for amending the bill as of course has not elapsed, an order to amend without prcjudic' to an injunction is as of course, and obtainable on praecipe, it is unnecessary to apply in chambers for it. Evans v. Root, 1 Cham. lU'p, 357. 1 2 — Whe re refused. In a suit instituted by an administrator with the will annexed upon a mortgage, the defendant produced a release for the mortgage money given by this testator in his lifetime ; thereupon the plaintiff sought to be allowed to proceed against the defendant as a creditor of the estate, but as this would involve such an amendment as would create an entirely different record, tiie Court refused such permission and dismissed the bill with costs. Bennett v. Crotthwaite, 9 Grant, 422. 13 — Draft of should be laid before Court. Where a motion is made to amend the bill under the 13th order of May, 1850, a draft of the proposed amendment must be laid before the Court upon the application; but it need not be set out in the notice of motion. Applegarth v. linker, 1 Grant, 428. • 1: 44 EQUITY DIGEST. li—At the hearing. In -ivhat cases allowed under order of May, 1850, at the hearing of a cause, Street v. Ifogahoom, 3 Grant, 128. Where a caaee stands over at the hearing for the purpose of ad- ding parties, the plaintiff has not a right to amend by changing the venue; but a defendant having delayed lui reason ably in making his application, a motion to take the amended bill off the files for irregu- larity in having bo^.n thus amended was refused without costs. (Spragge ■^^> C; , m v, Cross, 1 Cham. Hep., 25. 15— At a late '.^.'. An applioalio" to amend at a late stage of the cause, cannot be granted if it appears '>it e. ; amendment will bo attended with any risk of doing injustice, uotv.itbsi.iading the practice established by order IX, sect. 14, of 1853. Aitchison v. Coombs, 6 Grant, 643. 16 — Amendment of hill after notice of motion for injunc- tion. Where a motion for injunction stood over, and before it was brought on, the plaintiff amended his bill by adding parties necessary to the suit, for the purpose of obtaining the relief sought thereby, and in the absence of whom such relief would not have bten granted, and again brought on the motion without giving a fresh notice, the Court refused to hear the motion on this objection being taken. Westacott V. Coekerline, 13 Grant, 159. Where after serving a notice of motion for injunotion, and before the motion is made, the plaintiff amends his bill; such amendment is au answer to the motion. McDonell v. Street, 13 Grant, 1G8. 17 — At the hearing. The defendant by his answer, set up a compromise and settlement of the plaintiff's claim, and proved the same at the hearing, whereupon the plaintiff asked liberty to amend for the purpose of impeachi .g this settlement, the Court granted the leave upon payment of costs, but without the right to use again the evidence which had been ta!•■' ^ 48 EQUITY DIGEST. 69; without oath or signature, 70 ; filing, G9; wheu, 70; notice of to be given, 69 ; endorsement of, 69, 234 ; time to, 70; to amend- ed bill, 70; may be enlarged, 113; by deputy master, 175; long vacation not to count in time for, 36, 37 ; nor time after order for security for costs served, relief may be prayed for in, 70 ; supplemen- tal may be filed on terms, 70 ; how to bo supported, 71 ; extent of allowed, 72 ; rules as to reading on motion for decree, 80 ; motion for decree before, 87 ; "last answer," meaning of 88, 100, forms of to bills of foreclosure and sale, 221 ; in schedule, 233 ; in appendix, 285. See Deed.--Married Wosian.— Supplemental Answer. ■ '•-'■■ 4' ma ANTE-NUPTIAL SETTLEMENT. A memorandum was produced which was partially destroyed by fire, the purport of which was that W undertook to settle the prop- erty of his intended wife as her guardians should require ; this was proved to be the handwriting of W, and to have been seen in a perfect state since the decease of W, and as the witness believed signed by W, and that before the marriage, ho had produced and read a paper sim- ilar so far as the memorandum went to it. After the marriage the wife's property was all sold and the proceeds applied by W to the purposes of his business, who subsequently and while in a state of in- solvency assigned to the cashier of a Bank a policy on the life of himself, (W), in trust to pay certain bills of his in the hands of the Bank, and after payment thereof, to hold the moneys to be received on the policy for the benefit of his wife and children ; but in the event of W paying of the bills, to re-assign the policy to him or as he should appoint. W having died, the trustee received the insur- ance money, paid these bills, and claimed a right to apply the surplus in paying off other liabilities of W to the r>ank. Upon a bill filed by the widow and children of W against the trustee, the Court thought the ante-nuptial agreement sufiiciently established, and ordered the trustee to pay over the balance with interest; and that the trustee, being the cashier of the Bank who had thus received the benefit of the moneys, he sufficiently represented the Bank, and it was therefore not necessary to make the institution itself a party to the suit, but under the circumstance directed all parties to the cause to receive their costs out of the fund. Whttemore v. Lemonie, 10 Grant 125. By an ante-nuptial settlement made in Lower Canada, in 1833, according to the laws there in force, it was agreed between the par- ties to the proposed marriage that no communioa of property between EQUITY DIGfeST. 49 them should exist, but that each should hold and continue to enjoy what each then had, or should thorealter acquire. In 1848, certain goods and chattels of the husband, were sold at sheriff's sale, on ex- ecution against the husband, and having been bought in by a third party, were by a deed of donation conveyed to the wife for her sep- arate use. The parties having removed to Upper Canada, brought with them, these [<;ood3 which were seized under executions issued on judgments obtained against the husband, ffdd, that the marriage settlement and deed of donation properly vested the goods therein mentioned in the wife, and that they were not liable to seizure for her husband's debts, but the other propcity seized and claimed under the marriage contract was held liable. Roland v, Alnult, 11 Grant 135. APPEAL. Jurisdiction of Court as to, 8, 0. From orilcr in Chambers, 11, 22. Joiiit appeal, 10. County Court, 17. Su^peniiion of decree, 13 Practice as to, 10. Act as to, 20. Security for costs of, 23. Leave to, 24. To make decree, order of Court, 26. Executors, 1. Costs, 1. Prom master's report. 2, 15, 21. Prom master's order, 2. Prom master's ruling, 13, 14, 20. Staying pn loodings, pending, S. Time for a(.)ealing, 4, 5. Liberty to appeal, 6. Appeal from' report after 11 dayn, 7. Prom secretary, 10, 12. 1 — Executors — Costs. Executors will be ordered personally to repa:^ costs paid to them or their solicitor under a decree which is afterwards reversed on ap- peal. Davidton v. Thirkell, 1 Grant, 284. 2 — Appeal from master's report — Waiver. A party had delayed for one day beyond the time allowed for that purpose, to give notice of an appeal from the master's report, and the other side, instead of moving to set the proceedings aside, served notice of a cross appeal. Held, that he had waived the irregularity. By the master's report, executors were found indebted to the es- tate, one of whom, being dissatisfied with the finding of the master, gave notice of appeal to the plaintiff, but did not serve any notice of appeal on the other executor. Held irregMlar, and that a special appli- cation would be necessary to be allowed to give notice of the appeal, after the regular time for so doing. The fact, that the interest of the party not served was the same as the party appealing, made no difference in respect to his right of being present upon the argument of the appeal. (The Chancellor.) Larkin v. Armttrony, 1 Cham. Bep., 31. If i' i* V' TTT 50 EQUITT DIGEST. 2— Appeal from Master's cyrder. All applications in the nature of an appeal from a master^s judgment should be made in Court and not in Chambers. Led- yard V. McLean. Fitzgerald v. U. C. Building Society, 1 Cham. Rep., 183. ^—Staying proceedings pending appeal. A defendant appealed from an order directing his committal for breach of an injunction, and moved the Court to stay proceedings under the order pending the appeal, which was refused. Gamble v. Howland, 3 Grant, 291. 4t— Time for appealing. Where a cause had been re-heard and the original decree affirmed, and an appeal was brought within a year of the decree on re-hearing. Held, that the appeal should have been within a year from the orig- inal decree. And that, in consequence of the delay, a special appli- cation for leave to appeal was necessary. Macjarlane v. Dick$on, Cham. Bep., 38. 5 — Time for appealing. — Re-hearing. Where a decree is re-heard and the order made on the re-bearing, is a simple affirmance of the decree, the time for appealing, as of course, dates from the original decree. The bond giveu as a security od ap- peal, and the affidavits of execution and justification, were all entitl- ed in the name of the original plaintiff's, one of whom had died, and both were named as obligees, in the bond. Held irregular. Mc- Farlane v. Dickson, 1 Cham. Rep., 377. 6 — Liberty to appeal. Leave to appeal to the Court of Error and Appeal, after the time therefor has elapsed, will not be granted if the delay is not properly accounted for, especially if the position of the other party to the suit has been changed. Bullen v, Renwick, 1 Cham. Rep.. 204. 7 — Appeal from master's report, after 14 days. By section 17 of the XLlI of the orders of 1853, reports of the matter become absolute in fourtewLfdays from the signing thereof, unless previously appealed from ; l^jfhere the fourteen days, so^ven, had been allowed through over-sight to expire before giving notice of appeal, leave to do so was granted, on payment of the costs of the application. Spragge, V. 0. Cozens v. McDougall, 1 Cham. Rep., g — /'u,, Lddict The Court o by either party County Court, of Chancery sh otherwise or whom the sam 119,8.18. Co 9 The Cour judgment or de teotion of the h is other -ise pr deoisi ' the ordi.. . iss or before the C and may make costs, and othei just, and the d( pealing as well J. C, 58. 10— Appeal^ Before an ap thereon must 1 Rep, 132 11 — Appeals Where an oi Court had a sii arj, and not ai out leave to se such order. 1 12 — Appeali A party ca or make a ac^ 2 Cham. Rep. 13 — Appeal By the gene greater discret masters in En m EQUITY DIGEST. 61 \y n g — Ju,, addiction of Court as to. The Court of Chancery shall have jurisdiction to entertain appeals' by either party, against any orfler or decree made by the judge of a County Court, under the equitable jurisdiction thereof, and the Court of Chancery shall make such order thereupon in respect to costs or otherwise or for referring back the matter to the judge, before whom the same was £rst heard, as may be just and proper, 16 Vic, 119, s. 18. Con. Stat, U. C, 58. 9 The Court shall also have jurisdiction on any appeal from the jadgment or decision of tho commissioners under the act for the pro- tection of the lands of the Crown, in U. C., except as in tho said act is other "ise provided, and the Court may alter, affirm or annul the deoisi ' the commission .'rs, or order further inquiry to bo made, or di.. • issue touching tho matter in dispute to be tried at law, or before the Court or a judge thereof, with the assistance of a jury, and may make such orders and directions therein, for payment of costs, and other matters respecting the same, as to the Court seems just, and the decree of the Court shall bo conclusive on the party ap- pealing as well as on the commissioners, 2 Vic. 15. s. 11. Con. Stat. J. C, 58. 10 — Appeal from secretary's (/".clsion. Before an appeal will lie from the secretary's decision, the order thereon must be drawn up and entered. Gibb v. Murphy, 2 Cham. Rep, 132 11 — Appeals from orders in Chainbers. Where an order was made in Chambers in December, and the full Court had a sitting in the following' January, and another in Febru- ary, and not another until Juno. Held, that it was irregular, with- out leave to set down for hearing in June, a motion to discharge such order. In re D. G. Millar, 13 Grant, 73. 12 — Appealing from secretary s order. A party cannot use affidavits not used before the secretary, or make a new case on an appeal. Bank of Montreal v. Wilson, 2 Cham. Kep. 117 13 — Appeal from master. By the general order (N"o 42) the master here has been given a greater discretion as to the conduct of references before him than the masters iu England have. S :• t m m 52 EQUITY DIGEST. The master overruled certain objections raised before him as to the regularity, in point of form, of certain proceedings in his office. On an appeal from this decision, the Court considered that if he had allowed the objections he would not have taken an improper view of them,;but refused to interfere with tho master's ruling, and dismissed the appeal, but without rists, ScuUhorpe v. Burn, 12 Grant, 427. 14 — Appeal from master. There may, in a proper case, bo an appeal from the master's rul- ing, as to the admissibility of evidence, before the master makes his report. McDonald v. Wright, 12 Grant, 552. 15— From master's report. Where an incumbrancer, who objected to the order of priority in in which he was placed, appealed from the finding of the master ; the Court considered this the more convenient course to adopt, al- though it was open to him to have moved to discharge the master's order. McDonald v. Roger, 9 Grant, 75. 16 — Joint Appeal. Where defendants appealed jointly, and the Court thought that all of them except one were entitled to be relieved from the decree which had been pronounced in the Court below ; the Court, revers- ed the decree, notwithstanding that, as to one of the appellants, the evidence was suflSoient to establish the will under which the plaintiff claimed to be entitled to the estate in question. Black v. Black, 2 Grant, B. & A. R., 419. Vi— Appeal from County Court — Costs. Where a party filed a bill on the equity side of the County Court, which, on the hearing, was dismissed with costs, and the plaintiff ap- pealed to this Court, when the ruling of the judge was reversed, the Court gave to the plaintiff the costs of the appeal, as well as of the Court below. Farquhar v. The City of Toronto, 12 Grant, 186, 18 — Suspension of decree. The Court has full power, notwithstanding the Error and Appeal Act of 1857, to suspend the operation of its decree, so as to allow an appeal to be made to the Court above. Cotton v. Corby, 5 U. C. L. J., 67. 19 — Practice as to. Court of Error, &c., Act, see Taylor's Orders, 239 ; orders, 254 ; bond to, form of, 318; form of notice of appeal, 243 j from County EQUITY DIGEST. 53 Courts, 25, 26, 27, 257 ; form of bonds on, 318 ; from Commissioner of Crown lands, 27 ; from Surrogate Court, 258 ; in what cases allow cd and how removed, 258, 259 ; to privy council, 244 ; form of bond, 319 ; from order of deputy master, or examiners as to production, 97 ; from master's report, 210 ; when heard, 213 ; from chamber orders, 215; when heard, 215; from master's report on title, 121. 20— Act as to. From County Court, Con, Stat. U. C, 58 ; from Surrogate Courts, lb ; see also lb 92, 25 Vic, c. 18, 21 — . ippeal from master. Where a party appealed on certain grounds against the master's report, and some of these grounds were allowed, and the report re- ferred back to be reviewed. Held, that an appeal against the further report thereon, would not lie for matters disposed of by the first report, and not objected to on the first appeal. Ross v. Ferrault, 13 Grant, 206. 22 — From Chambers. An appeal from an order made in Chambers, was set down to be heard for a day falling within the time appointed for examination, and hearing term. This was held irregular, and on that ground, the case was struck out of the paper with costs. Armstrong v. Caley, 13 Grant, 558. See County Court — Insolvency — Insolvent Act. 23 — Security for Costs of. In bonds for security for costs of appeal, there should be two sufEiclen'u securities, and if one dies or becomes insolvent, another will be ordered to be substituted. Briyham v. iimith, 1 Cham. Rep., 334. Saunders v. Fumival, 2 Cham, Rep., 154. 24 — Leave to. Leave to appeal was given to the plaintiff after the expiration of a year, where it appeared that delay had been caused by the depositions in the cause having been mislaid. Bank U. C. v Wallace, 2 Cham. Rep., 169. 25 — To make decree in order of Court. Semhle. A motion to make a decrv°e of the Court of appeal, an order of the Court of Chancery may bo made in Chambers, if it is sought to make the order in the terms of the decree of the Court above, but it' further directions or ntw teinis tire neccFsar} to carry out the decree in appenl, the motion should be to the Court, Weir v. Matheson, 2 Cham. Rep , 10. 'at'! ma 64 EQUITY DIGEST. 26— from niaster'a ruli/ng. Semhk, Appeals from the master's ruling as well as appeals from his reports, should be to the Court, and not in Chambers. Jaj/ v, Macdonell, 2 Cham. Bep„ 71. APPEALED CASES. -^ Attorney General v. Grasett. 6 Grant, 200; 8 Grant, 130— En- dowment of Rectories. Trusts. Dormant Equities. Baby v. Miller. 1 E. & A., 218— Will, construction of. Cumula- tive Legacies. Charge. Bank U. C. v. Brough. 2 E. & A., 95— Mortgage. Mortgagee Sale of Equity of Redemption. Bank U. C. v. Thomas. 2 E. & A., 502— Judgment Creditor. Form of Decree. Setting aside Deed for Fraud. Dower of wife, of Grantor. Bank Montreal v. Hopkins. 2 E. & A., 458; 9 Grant, 495— Mortgagor and Mortgagee. Estoppel. Representation affecting third parties. Barnhart v. Greenshields. 5 Grant, 99— Mortgage by Deed abso- lute in form. Notice. Bernard v. Walker. 2 E. & A., 121 — Mortgage created by Absolute Deed. Joint Tenant. Tenant in common. Parol Evidence Bettridge v. Great Western Railway. 3 E. & A., 58 — Specific Performance. Ultra Vires. Black V. Black. 9 Grant, 403; 2 E. & A., 419— Agreement to Devise. Specific Performance. Part Performance. Practice« Appeal by several Defendants when one not entitled. Blackwood v. Paul. 4 Grant, 550— Specific Performance. Un- reasonable Bargain. Boulton V. Jeffrey. 1 E. & A., HI— Jurisdiction. Equities as against Crown. Boulton V. Gillespie. 8 Grant, 223— Vendor and Purchaser. Lien for Unpaid Purchase Money. Bowes V. City of Toronto. 6 Grant, 1— Trustee. Municipal Councillor. Bown V. West. 1 E. & A., 117— Indian Rights. Rescission of Contract. Brigham v. Smith. 3 E. & A., 46— Partners. EQUITY DIGEST. 55 Brown v. Smart. 1 E. & A,, 148 — Principal and Agent. Specific Performance. Payment. Buffalo & Lake Huron R. R. Co. v. Whitehead. 8 Grant, 157 — Corporation. Contract under Seal. Ratification of Parol Con- tract. Acquiesence in Contract entered into by Agent. Principal and Agent. Carpenter v. Commercial Bank. 2 E. & A., Ill — Collateral Se- curity., Defence at Law. Plea of Payment. , , a , Cottony. Corby. 8 Grant, 98 — Variation of Deed. Crawford v, Meldrum. 3 E. &' A., 101 — Fraudulent Conveyance. Crooks V. Torrance, 8. Grant, 220. — Specific Performance. Ex- ecutors. Desjardins Canal Company v. Great Western Railway Company. 9 Grant, 503 ; 2 E. & A., 330— Specific Performance of agree- ment to accept work after inspection. Evans v. Evans. 2 E. & A., 156 — Specific Performance. Laches Freeman, Cragie & Proudfcot. 2 E. & A,, 109 — Practice. Appeal- able Order. Costs. Freeman v. Bank of Upper Canada. 2 E. & A., 362 — Mortgage. Judgment. Registration. Ford V. Chandler. 8 Grant, 85 — Trustee and Cestui qui trust. Breach of Trust. Liability of Trustee. Gardiner v. Juson. 2 E. & A , 188 — Sheriff's Sale. Judgment. Creditor. Registry of Judgment. Certificate of Deputy Clerk of the Crown. Notice. Greaves v. Henderson. 2 E. & A., 9 — Attorney and Client. Trustee and cestui qui trust. Construction Notice. Purchase for value without Notice. Harper v. Knowlson. 2 E. & A., 253 — Partnership. Harvey v. Smith. 2 E & A., 480 — Lien for Unpaid Purchase Money. Infant. Costs. Hawkins v. Jarvis. 1 E. & A., 246 — Practice. Pro Con Order 75. Henrihan v. Gallagher. 2 E. & A., 338— Lease with Right of Purchase. Personal Representative. Heir-at-Law. Home District Insurance Company v. Thompson — I E & A., 247 — Mutual Insurance Company. Injunction. Re-building. ' 1 ? ¥ I ^' "S: ,:, 4 -1 <- ;l;.l|| WT 56 EQUITY DIGEST. Kerr v. Amsden. 2 E. & A., 446— Kegistered Judgment Lien, 9 Vict. 34, and 13 and 14 Vict., c. 63. Matthews v. Holmes. 5 Grant, 1 and 108— Mortgage, Parol Ev. idence. Menneilly v. McKenzie. 3 E. & A., 2l)9--Fi Fa Lands. Time for renewing. MoDonell v. McDonell. 2 E. & A., 393— Mortgagor and Mortga- gee. Mortgage by Deed Absolute in form. Sale by Sheriff of Equity of lledemption. Dormant Equities. Statnt,e of Limita- tions. MoCabe v. Thompson. 6 Grant, 175 followed. 11th Clause Chancery Act. McQueston v. Thompson, 2 E. & A., 167 — Fixtures. Munro v; Watson, 8 Grant, 60; and 5 Grant, 662 ; and 6 Grant, 885. — Mortgage by absolute Deed. Laches. Bedemption. Issue* Nichol v. McDonald, 8 Grant, 106.— Railway Contractor. Appeal from Master's Beport. Practice. Costs. Norwich v. Attorney General, 2 E. & A., 541 — Advance under Con- solidated Municipal Loan Fund Act. Discharge of Railway Stockholders, by Act of Parliament. Consequent Claim for Equi* table Relief. Parke v. Riley, 3 E. & A., 215.— Sherirs Sale. Parol Evidence. Paul V. Blackwood, 4 Grant, 550— Specific Performance. Unrea- sonable Bargain^ Reid V. Whitehead, 2 E. & A., 580 ; and 10 Grant, 446.— Registra- tion, Sampson v. Mc Arthur, 8 Grant, 72.— Infancy. Interest in Lease- hold with Right of Purchase. Married Woman, Examination of. Smyth V. Simpson, 1 E. & A., 1 ; and 172.— Sale of Equity of Re- demption. Pleading. Demurrer for want of Parties. Practice. Power of Court to refuse Redemption. 11 Clause Chancery Act. Stanton v. McKinlay, 1 E. & A., 265— Mortgage Sale with Right to re-purchase, ll Clause Chancery Act. Street v. Commercial Bank, 1 Grant, 169 ; 1 E. & A., 246— Mort- gage. Priority. Begistration. Topping V. Joseph. 5 Grant, 636; 1 E. & A., 292— Equitable Assets. Judgment Creditors. Principal and Security. Torrance v. Crooks. 1 E. & A., 230— Practice. Supplemental Answer. p^'i-f. EQUITY DIGEST. ^1 Walker v. Provincial Insurance Company, 8 Grant, 217 — Insur- ance. Lost, or not lost. Premiums. Weir V. Matheson. 11 Grant, 383 ; 3 E. & A., 123— University. Removal of Professor. Jurisdiction. Weir V. Weir.— 10 Grant, 565 ; 3 E. & A. APPEALED QUESTIONS AND SUBJECTS. Absolute Deed, by way of Mortgage. See Mortgage. Acquiescence in Contract. — BuflFalo v. Whitehead, 8 Grant, 157. Agent, Contract by.— Buffalo v. Whitehead, 8 Grant, 157. Agreement to Accept Work after Inspection. — Desjardiu C. C. v. G. W. R.. 2 E. & A.. 330. Alimony.— Weir v. Weir, 10 Grant, 565 ; 3 E. & A. Appealable Order. — Freeman, Craigeo & Proudfoot in re, 1 Cham. Rep., 102 ; 2 B. & A., 109. Appeal from Master's Report. — Nichol v. McDonald, 8 Grant, 106. Attorney and Client. — Greaves v. Henderson, 2 E. & A., 9. Chancery Act, 11th Clause of— Smyth v. Simpson, 1 E. & A., 1 & 172 ; Stanton v. McKinley, 1 E. & A, 265. Collateral Security. — Carpenter v. Commercial Bank, 2 E, & A., Ill Commercial Bank v. B. U. C, 7 Grant, 423, 250. Construction of Will.— Baby v. Miller, 1 E. & A., 218. Constructive Notice.— Greaves v. Henderson, 2 E. & A., 9. Contract by Agent. — Buffalo v. Whitehead, 8 Grant, 157. Contract Parol, ratification of. — Buffalo v. Whitehead, 8 Grant, 157. Corporation. — Buffalo v. Whitehead, 8 Grant, 157. Costs. — Freeman, Craigie & Proudfoot, in re, 1 Cham. Rep., 102 ; 2 E. & A., 109. Cumulative Legacies. — Baby v. Millar, 1 E. & A., 218. Decree, form of. Setting aside deed for fraud. — B. U. C. v. Thoman, 2 E. & A., 502. Deed, Variation of. — Cotton v. Corby, 8 Grant. 98. Defence at Law. — Carpenter v. Commercial Bank, 2 E. & A., Ill, Dormant Equities.— McDoncll v. McDonald, 2 E. & A.^ 393 ; Beck- ett v. Wragg, 7 Grant, 220. Dower.— Bank U. C. v. Thomas, 2 E. & A., 502. Eleventh Section of Chaneery Act. — Smyth v. Simpson, 1 E, & A., 1 & 172 ; Staunton v, McKinley, 1 E. & A., 265. H ^P'PT'^ 68 EQUITY DIGEST. :i ii Equitable Assets.— Joseph v. Topping, 5 Grant, 636 ; 1 E. & A., 292. Equities against the Crown— Boulton v. Jeffrey, 1 E, & A., 111. Equities Dormant.— See Dormant Equities. Equity of Redemption, Sale of.— Bank U. C. y. Brough, 2 E. & A., 95; Smyth v. Simpson, 1 E. & A., 172. / /w ,,;.:' Estoppel— Bank of Montreal v. Hopkins, 2 E. & A., 458 ; 9 Grant, 495. Executors.— Crooks v. Torance, 8 Grant, 220. Fixtures. — McQueston v. Thompson, 2 E. & A., 167. Fieri Facias, time for renewinej. — ^Mencilly v. Macl;enzie, 3 E. & A., 209, Fraudulent Conveyance. — Crawford v. Meldrum, 3 E. & A., 101. Heir at Law. — Henrihan v. Gallagher, 2 E. & A., 338. Indian Eights. — Bown v. West, 1 E. »& A., 117. Infancy. — Sampson v. McArthur, 8 Grant, 72. Injunction. — Homo District Insurance Company v. Thompson, 1 E. & A., 247. Insurance. — Home District Insurance Company v. Thompson, 1 E. & A., 247; Walker v. Provincial, 8 Grant, 217. Joint Tenant.— Walker v. Bernard, 2 E. & A , 121. Judgment Creditor.— Bank U. C. v. Thomas, 2 E. & A., 502 ; Gar- diner V. Juson, 2 E. & A., 188; Topping v. Joseph, 5 Grant, 636 ; 1 E. & A., 292. Jurisdiction.— Boulton v. Jeffreys, 1 E. & A., Ill ; Weir v Mathc- son, 11 Grant, 383 ; 3 E. & A., 123. Laches.— Evans v. Evans, 2 E. & A., 156; Munro v. Watson, 8 Grant, CO. Lease, with right of Purchase.— Henrihan v. Gallagher, 2 K. & A., 338. Lien.— Amsden v. Kerr, 2 E. & A., 446 ; Harvey v. Smith, 2 E. & A., 480 ; Boulton v. Gillespie, 8 Grant, 223. Married Woman.— Simpson v. McArthur, 8 Grant, 72. Mortgage. Mortgagor and Mortgagee.— Barnhart v. Greenshields, 5 Grant, 99, Bernard v. Walker, 2 E. & A., 121. Bank U. C. V. Brough, 2 E. & A., 95. Street v. Commercial Bank, 1 Grant', 169, 1 E. & A., 246. Commercial Bank v. Hopkins, 2 E. & A.,' 458 ; 9 Grant, 495. Freeman v. Bank U. C, 2 E. & A., 362* EQUITY DIGEST. 59 Matthews v. Holmes, 5 Grant, 1 . McDonald t. McDonell, 2 E. 6 A., 393, Munro v. Watson, 8 Grant, 60. Arkell v, Wilson, 7 Grant, 270, Municipal Councillo1:s. — Bowes v. Toronto, 6 Grant, 1. Municipal Loan Fund. — Norwich v. Attorney General, 2 E. & A,, 541. Notice. — Barnhart v. Grccnshields, 5 Grant, 99. Gardiner y. Juson, 2 E. & A., 188, Greaves v. Henderson. 2 E. & A., 9. Parol Evidence — Matthews v. Holmes, 5 Grant, I, Parke v. Riley, 3 E. & A., 215. Part Performance.— Black v. Black, 9 Grant, 403, 2 E. & A., 419, Partner and Partnership. — Brigham v. Smith, 3 E. & A., 46. Har- per V. Knowlson, 2 E. & A„ 253. Personal Representatives. — Heorihan v. Gallagher, 2 E. & A., 338 ; 9 Grant, 588. Plea of Payment, — Carpenter v. Commercial Bank, 2 E. & A, 111. Practice. — Hawkins v. Jarvis, 1 E. & A., 246 ; 1 Grant, 257. Nic- hol V. Macdonald, 8 Grant, 106. Principal and Agent. — Brown v. Smart, 1 E. & A, 148. Buffalo v Whitehead, 8 Grant, 157. Pro Con.— Hawkins v. Jarvis, 1 l). & A., 246 ; 1 Grant, 258. Purchase Money, Lien for. — Harvey v. Smith, 2 E. & A., 480. Railway Contractor. — Nichol v, McDonald, 8 Grant, 106. Rehuilding. — H. D. Insurance Company v. Thompson, 1 E. & A., 247. Rectories Endowment of — Attorney General v, Grasett, 6 Grant, 200; 88 Grant, 130. Registered Judgments. — Kerr v. Amsden, 2 E. & A., 446. Registration. — Rcid v. Whitehead, 2 E. & A., 580, — Commercial Bank v. Street, 1 Grant, 169 ; K & A., 246. Rescission of Contract.— Bpwn v ,W,cst, 1 E. & A., 117. Kight of Purchase (in licasc). — Ilenrihan v. Gallagher, 2 E. & A., 338. Right to Re-purchase. — Sampson v. Mc Arthur, 8 Grant, 72. Sale of Equity of Redemption. — See Equity of Redemption. Sheriff's Sale.— Parko v. Riley, 3 E. & A„ 215. Specific Performance. — Bettridgo v. Great W. R. Co'y,, 3 E. & A., iy 60 EQUITY DIGEST. 58. Black V. Black, 9, Grant, 403; 2 E,& A., 419. Blackwood V. Paul, 4 Grant, 550 ; 1 Grant, 394. Brown v. Smart, 1 E. & A. 148. Crooks v. Torrance, 8 Grant, '-'20. Dcsjardins C. C. V G W R 2 E. &A ; 330, Evans v. Evans, 2 E. & A., 156. Arnold V. McLean, 4 Grant, 337 ; G Grant, 24-'. Springer v. Gray, 7 Grant, 276, and 5 Grant, 242. Statute of Limitations.— McDonald v. McDoncU, 2 E. & A., 393. Supplemental Answer.— Torrance v. CrooTcs, 1 E. & A., 220. Tenants in Common.— Walker v. Bernard, 2 E. & A.,121 Trusts, Trustee and Cestui que Trust.— Bowes v. Toronto, 6 Grant, 1. Ford V. Chandler, 8 Grant, 85. Greaves v. Henderson, 2 E. & A., 9. University.— Weir V. Matheson, 10 Grant, 563; 3 E. & A., 123. Unpaid Purchnee Money.— See Purchase Money. Vendor and Purchaser.— Boulton v. Gillespie, 8 Grant, 233. Will Construction of.— Baby v. Miller, 1 E. & A., 229. APPEARANCE ABOLISHED. Taylor's orders, 53. APPLICATION OF INSUBANCB MONEY. See Mortqaqe. APPLICATION OF PAYMENTS. 1 — Partners. One partner of a firm gave as security for half of the partnership indebtedness, a mortgage on his separate real estate, the other partner gave an endorsed note for the remaining portion of the debt ; subse- quently payments were made to the creditor on account of the joint debt, which he credited on the note, claiming to hold the mortgage ibr the entire balance. Held that an assignee of the mort;j;ugor was entitled to have one-half of all sums which had been paid out of the partnership assets on account of the debt credited on the mortgage security. Moore v, Riddcll, 11 Grant, 69. 2. The debtor of a mercantile firm being desirous of extending hia transactions with his creditors, executed to them a mortgage to secure the sum of £2000 ; subsequent transactions between the par- Wf EQUITY DIGEST. 61 ties to a large amount took place, and during one year alone the sums charged to the debtor amounted to £30,000, and after four year's dealing between the parties from the time of executing the mortgage, an account was delivered to the debtor, showing a balance of £1,041, against him. Upon a bill filed to foreclose tho mortgage for this amount, the Court hdJ, that the transactions which had taken place discharged the mortgage debt. Buchanan v. Kirhy, 5 Grant, 332. The ruling in re Brown reported 2 Grant, 590, affirmed. Ih. See Appuopkiation op Payments. APPOINTMENT. Married woman. Property stood litiiitcd in trust for such purposes or persons as the wife should appoint, and in default of appointment in trust for the wife and her heirs. Tho wife appointed part of her estate to her husband, in fee, and tlic other part in trust for herself and children. Eeld, that these appointments were authorised by tho power, but it being su$;gested on affidavit, that they were made under the exercise of undue influence on the part of the husband, further enquiry was directed. Fcnton v. Cross, 7 Grant, 20. APPOINTMENT OF JUDGES AND OFFICERS OF COURT See Taylor's orders, 1 ; registrar, master, accountant, sergeant-at- arms, 4 ; registrars' and masters' clerks ; local masters and deputy registrars, 5 ; additional clerks, 7 ; of committee in lunacy, 16 ; of guardian of infants, &c., 70, 128, 185; receiver, 83,114, 124; Con. Stat, c 45, ct seq. APPORTIONMENT OF COSTS. Where on an appeal from a master's report, some of the objections are allowed with costs, and some are disallowed with costs, the ap- pellants are entitled to all the costs of tho appeal that are exclusively applicable to the objections allowed, and to a share of those costs, common to all the objections according to, not the mere number of tho objections as stated in the notice, but to the really distinct grounds of appeal. The same rule applies to the respondent's costs. Tlie Bank of Montreal v. Ryan, 13 Grant, 204. fc?" f;' A'' li: ' i: ^- 62 EQUITY DIGEST. APPROPRIATION OF PAYMENTS. 1. A creditor who took a mortgage from his debtor for £2000, (part of a debt of £2,414 18s. lid.), commencing with the balance of £2,414 18s. lid,, taking no notice of the mortgage of £2,000, and in such account credited, (without any objection by the debtor) or sums received after the mortgage was given, but before iv^fell due. Held, that this proved an appropriation of such sums towards pay- ment of the original debt, including that part of it which was scoured by the mortgage. lie Brown, 2 Grant, 540; S. C. 2 Grant, 111. 2 An appropriation of payments made by the creditor for the first time on bringing the account into the master's office, and appar- ently on the very day on which it is brought in, is too late. Fraser V. Lode, 10 Grant, 207. 3 — Interest. To save interest by an appropriation of the purchase money, the money should be separated from the purchaser's general bank account, and notice of the appropriation must be given to the vendor. Th Great Western Railway Company v. Jones, 13 Grant, 355. SeB PaiNCIPAL AND SCRETT--APPLICATION OP PAYMENTS. ARBITRATION. Reference by Married Women. 1. Road Company. 2, 8. Equitable Defence at Law. 3. Injunction, 3. Contempt, 4. Setting aside award, 6. Construction of Submisiiiun, 6. Ultra Vires. 7, 8. Damages, 8. 16 Vict., 190, 8. I— Reference to, by married ivomen.—How far binding when affecting her real estate. A having duly made his last will and testament, whereby he de- vised certain real estate in separate parcels to B and C, afterwards incumbered these lands, which incumbrance was unremoved at the time of his death. B was a. feme covert, and questions having arisen between B and C as to the amount of the incumbrance to be borne by each, they by mutual bonds, in which B and her husband joined, agreed to refer such questions to arbitration ; and an award having been made between these parties. Held, that B being a/me covert could not enter into such an agreement to refer, and that the pro- visions of the law, as to conveyances by married women of their real estate did not apply to agreements to refer, and that therefore such agreoment and award were not binding on her. Bagley v. Humph- ries, 11 Grant, 118. i^Road Comii In proceedings purpose of ascerta materials necessar cannot confer upo the material, by a als to be taken at Qmre. Whetl enter upon land c road, for the put thereof. Ih. 3 — Equitable d( A defendant to fence, an alleged time by the plaini jeot to be increase the award of an a arbitrator had ent pointment for the action filed a bill i at law, alleging, as been pleaded by h circumstances, ref costs. Pomeroy \ ^Contempt. Semhle. That cced in this Court that Court, which 5— Setting asid It would seem i must be made wit of the award. In — Constructio'i Where parties award of three arl vided the award v of them, and it trators dissented 1 W ''" EQUITY DIGEST. G^ 2— Road Company. In proceedings taken under the statute^ 16 Vic, o. 190, for the purpose of ascertaining tho amount to be paid by a road company for materials necessary for the construction of the road, tho arbitrators cannot confer upou the company a prospective right to carry away the materia], by awarding an amount as compensation for tho materi- als to be taken at a future time. Gillam v. Ckghorn, 7 Grant, 83. Quosre. Whether the act gives the power to such companies to enter upon land distant two miles from the lino of the company's road, for the purpose of obtaining materials for the construction thereof. Ih. Z— Equitable defence at law — Injunction. A defendant to an action at law pleaded, by way of equitable de- fence, an alleged agreement made for valuable consideration, to give time by the plaintiff; and a verdict was taken for the plaintiff, sub- ject to be increased or reduced, or a verdict entered for defendant by the award of an arbitrator, chosen between the parties. Before the arbitrator had entered upon his duties further than making an ap- pointment for tho parties to attend before him, tho defendant in the action filed a bill in this Court, seeking to restrain the proceedings at law, alleging, as a ground for that relief, the same facts as had been pleaded by him in the action at law. The Court, under the circumstances, refused the relief prayed, and dismissed the bill with costs. Pomeroy v. Boswell, 7 Grant, 163, 4 — Contempt. Semhle. That it is a contempt of a Court of Common Law, to pro- ceed in this Court after a reference to arbitration under an order of that Court, which orders the parties to perform the award, lb. 5— Setting aside award. It would seem that a motion to set aside an award in this Court must be made within the common law term following the publication of the award. In re Taylor & Bostwick, 1 Cham. Rep. 53. fi — Construction of submission to. Where parties bound themselves to submit to the decision and award of three arbitrators concerning all matters in difference, pro- vided the award were made in writing by the arbitrators, or any two of them, and it afterwards appeared that one of the three arbi- trators dissented from an award made by the other two, and that the ^M ' 64 EQUITY DIGEST. arbitratora had mado no decision regarding a promissory note in difference between the parties which had been l/icuglit under their notice, the award was set aside. Kemp v. Hendvraon, 10 Grant, 54' 7 — intra Vires. Where the Crown Lands Department, in deciding to allow one of two applicants to become the purchaser of land, directed that the amount properly payable by him to tho other, should bo ascertained by arbitration, and the arbitrators, by their award, found a certain sum due, but directed in the event of the party to whom it was pay- able failing to deliver up possession to the other in two months that £400 should be deducted from the amount so found to bo duo. Held that this was an act in excess of their authority, their duty under the oircumstances, being simply to find tho amount payable by the one to the other. Barnes v. Boomer, 1 Grant, 532. 8 — Damages. — Ultm Vires. — Road Gomim^iies. — 10 Vict. 0. 190. Where arbitrators appointed under IG Vict, c. 190, awarded damages for materials taken generally. Held that tho award was ultra vireSf they having power to award damages in respect of ma- terials taken for tho purpose of the road only. Oillam v. Cleghorn 7 Grant, 83. See Compensation.— Infants.— Injunction.— Married Wo- man. ARBITRATORS. Award, 4. Corruption, 1. Rule of reference, 2. Submission, 4. Keception of Affidavit, Evidence, 4. Practice, 4. 1 — Corruption, dc. A charge of corruption and partiality against an arbitrator is not sustained by general affidavits that throughout the arbitration he had evinced a hostile disposition toward the party complaining, by a constant disposition to discredit his witnesses and by proposing to award a much larger sum against him than was ultimately done. Burr V. Gamble, 4 Grant, 626. 2 — Rule of reference. lb. How an obscurely expressed rule of reference is to be construed, See Arbitration.— Award. 3 — Submisslo Where a sub which of the s bound as mattet ity to deciding t arbitrator to fin( the arbitrator ga sider the liabilit the amount due. 4 — Award — 1 Where the ui lowed an affidav was read that hi in adjudioatiiig affidavit as evic award notwiths without costs. See Marrii Con. Stat. c. Arrest, ivrit c Tn.lor's V .a • jf security jrm of affidav' See Commit Abolished, T Where a bill assessment of t cause of an ove was too late to Court under tl miising tbebi I EQUITY DIGEST. 66 3 — Submission. Where a Hubmission was made to an arbitrator *'to determine which of the said several items of claim the estate of Mrs. B is bound as matter of law to pay." Held, that this confined the author- ity to deciding the question of legal liability, and did not authorize the arbitrator to find the sums payable. Where under such a submission, the arbitrator gave interest, it was held that he was authorized to con- sider the liability for interest, ulthough he could not correctly find the amount due. Arm»t,ong v. Caylei^, 2 Cham. Kep., 128. 4 — Aivard — Reception of Affi,davit — Evidence — Practice. Where the umpire chosen upon a reference to arbitration had al- lowed an affidavit to be used in evidence, but he remarked when it was read that he would not attach any weight to it, and swore that in adjudioatiiit^ upon the matters in difference he did not take such affidavit as evidence, or attach any weight whatever thereto, the award notwithstanding was set aside, but under the circumstances without coats. McEdwardv. Gordon, 12 Grant, 333. Seb Married Woman. ARREST. Con. Stat. c. 24, sec. 41 ; 27 and 28 Vic, c. 25. Arrest, lurit of. Tn lor's u. lors, 260 ; how obtained, 12, 260; bail on, 260 ; ex- ^f security required, 260 ; when to issue for non-payment, 261 ; ^rm of affidav' for, 308 Sef Oommitting — Contempt — Ne Exeat— Writ of Arrest. ARTICL 'S TO DISCREDIT. Abolished, Taylor's orders, 192. ASSESSMENT. Where a bill to restrain proceedings for collecting the township assessment of the year, on the ground of objection of form, and be- cause of an overcharged assessment of small amount was filed after it was too late to apply at law to quaah the bye-law complained of, the Court under the circumstances affirmed on re-hearing a decree, dis* missing the bill with costs. Orier v. St. Vincent, 13 Grant, 512. I 66 EQUITY DIGEST. Qucere. Whether a township council is at liberty to provide for abatements and losses which may occur in the collection of the County rate in respect of persona) property. " lb. ASSIGNEE. Sale of mortgaged premises. Where a suit is brought to enforce the sale of mortgaged property against the mortgagor and his assignee, the order for payment of any balance of the mortgage debt which may remain due after such sale, must be against the mortgagor and not the assignee. Turnbull v. Symmondt, 6 Grant, 615. Of moHgage-^W ithout notice — Rights of. Where a party executed a mortgage and had it registered, but did not, for some time, give it to the mortgagee, and this security was afterwards sold to a third party who was not aware of the facts, it was held entitled to priority over another mortgage previously executed, but not registered till after the other security had been registered although registered before the other had been delivered to the mort- gagee. Muir V, Dunnet, 1 1 Grant, 85. Mortgage held good in the hands of nn assignee for value without notice, though the parties, for whose benefit it was given, were not named in it, or shewn by any writing, lb. Assignee of mortgage. Form of bill by, see Taylor's Orders, 275. See Husband and Wipe — Injunction — Insolvent Act Judgment Creditor— MoRTGAaE— Specific Performance. ASSIGNMENT. For benefit of creditors, 1, 2, 10, 14, 15. 10. 17 18 19 » . I . . I , • OfMortgi«rc,8, 8. Of Morte(«e in trust to sell, 4. Principal and Surety, 6. Payment by Mortgagee, 6. Partners, 17. Foreclosing, 7. Parties, 7. Set off, 8. Injunction, 8. Preferential asHigiinients, 9. Commission to truNtceti, 11. Insolvent out, 12. Uf Chattels, &c., 13. Quarantee of Mortgage Money, 3. Assent. \L 1 — For the benefit of creditors. Certain creditors with the concurrence of the debttr, and after notice of an assignment by him of everything for .he benefit of his creditors parij)a$tu, entered up judgment against the debtor, issued execution thereon, seized goods and chattels of the debtor which wore covered by the at have anything to upon an issue un a valid instrumen under their execi under the deed a to consent to thii the other oredito fit of the deed, t answers, moved f hands which still the plaintiff's eqi they refused the 2 Debtors h time, the debtors part with their e rally. Subseque creditors for the all further indeb Upon a bill filed declared such as: and that the cre( ceeds of the trust Taylor v Mable 3 — Of mqrtgai On the transfi default were ma( the same. Helc the meaning of e V. Bat, 8 Grant 4 — Mortgage \ A person hold against loss on a in case of defaul allowing tho mi m7fc#«, 8 GranI 6 — Principal A person, wh is not bound to fore be assigns oreditors in disc EQUITY DIGEST. 67 covered by the assignnent, and refused to execute the assignment or have anything to do with it, and it having been subsequently decided upon an issue under the Interpleader Act, that the assignment was a valid instrument, and that they, therefore, could not hold the goods under their execution ; they became desirous of ranking as creditors under the deed and the trustee refusing after what had taken place, to consent to this, and having divided most of the trust funds among the other creditors, the excluded creditors filed a bill to have the bene- fit of the deed, the debtor being willing, end on the coming in of the answers, moved for pnyment into Court of the balance in the trustee's hands which still remained unappropriated, but the Court considered the plaintiff's equity as so doubtful under these circumstances that they refused the motion with costs. McKay v. Farith, 1 Grant, 333. 2 Debtors having obtained from their creditors an extension of time, the debtors covenanted to pay all the debts in full, and not to part with their effects except for the benefit of their creditors gene- rally. Subsequently the debtors made un assignment to one of their creditors for the benefit of all, the deed containing a release from all further indebtedness by the creditors executing the assignment. Upon a bill filed by some of the creditors on behalf of all, the Court declared such assignment to be in contravention of the agreement* and that the creditors were entitled to participate rateably in the pro- ceeds of the trust effects without releasing the balance of their claims. Taylor v. Mahley, 6 Grant, 570. 3 — Of mqrtijagc — Guarantee of mortgage money. On the transfer of a mortgage the mortgagee covenanted, that if default were made in payment of the mortgage money, he would pay the same. Held, that this did not constitute him a surety within the meaning of section 4 of the 32iid of tho orders of 1853. Clarke V. Best, 8 Grant, 7. 4 — Mortgage in trud to sell. A person holding mortgages in trust for sale to indemnify him against loss on account of the mort;;agor is not entitled to foreelosti in case of default ; the only decree to which he is entitled is to sell, allowing tho mortgagor the usual time for redemption. Pato,i v. Wilke», 8 Grant, 252. 5 — Principal and surety. A person, who is surety for another and holds collateral securities, is not bound to wait until he has paid the debt of the principal be- fore be assigns sueh securities, but may do so at any time to the creditors in discharge of his liability. 2b. 68 EQUITY DIGEST. Q— Payments by mortgagee — Notice. When two persons were mortgagees and one of them assigned his interest to the other, the mortgagor was allowed credit as against the assignee, for goods delivered to the assignor until notice of the assign. ment. Galbraith v, Morrison, 8 Grant, 289. 7 — Foreclosure — Parties. One of the defendants, the assignee of the mortgagee, by his answer, stated that he was not interested in the mortgage, or at all events only by way of security, and that it belonged to A, and that he and A had concurred in an assignment of it to B. Held, that A and B were necessary parties, and that, notwithstanding the defendant consented to withdraw his answer, a decree could not be made in their abscence, Van Kledc v. Tyrrell, 8 Grant, 321. 8 — Moi'tgage — Set off— Injunction. Upon the sale of land, which was subject to a mortgage, the ven* dor gave a bond to indemnify the purchaser against the incumbrance, and thereupon the transaction was completed, the purchaser giving a mortgage for £500, and paying the residue of purchase money in cash. The mortgage given by the purchaser was transferred to a third party for value, but with notice of the existence of the prior incumbrance, who subsequently took proceedings at law against the purchaser to recover the amount of his mortgage, who thereupon filed a bill in this Court claiming a right to apply the amount due by him in discharge of the prior mortgage which was then due and un- paid. A motion for an injunction to restrain the action at law was refused. Tullj/ v. Bradbury, 8 Grant, 561. 9 — Preferential assignments. Sfmhle. The 22nd Victoria, c. 26, does not alter the law, except as to preferential assignments, lb. 10 — For benefit of creditors. A provision in a deed of assignraent for the benefit of creditors appointing a time within which creditors are required tocomo in and execute in order to receive the benefit of the trusts, does not render the deed void under the statute, 22 Vict, c. 26. Metcalfv. Keeftr, 8 Grant, 392. 11 — Commission to Trustees. Neither does a provision for an allowance of a reasonable commis- won or nmuQeration to the trustees, notwithstanding they may be creditors of the vision for the en tion render the < in such a manne quoad third per dioial delay to tl 12 — Insolvent Two partners their joint esta their joint and the act having the previous as creditors of each thejaintpropert was a fraud on that the separate equality compla bill was disraissi 469. IS—Assignml eration — D> before ivhort The Con. St of personal prop An assignmei effects will go in getherwith the they are credito ment. An assi and effects," in south side of K bered 77, whicl the schedule ai gins '' stock in and next desoi pass not only ' but what was ( store and two ' EQUITY DIGEST. 69 4 big creditors of the estate under the statute 13 Elizabeth, nor does a pro- vision for the employment of the assignor at a reasonable remunera- tion render the deed void, but a provision for carrying on the business in such a manner as to render the creditors partners with the trustee quoad third persons or one which may cause unreasonable or preju- dicial delay to the creditors docs. lb. 12 — Insolvent Act. Two partners before the passing of the Insolvency Act assigned their joint estate and separate estates together for the benefit of their joint and separate creditors pari passu. An assignee under the act having been afterwards appointed, he filed a bill to set aside the previous assignments on the ground that, to put the separate creditors of each on an equality with the joint creditors i«« respect of the joint property, and of the separate property of the other partner, was a fraud on the joint creditors. But it appearing by evidence that the separate estates of both partners were solvent, and that the equality complained of was an advantage to the joint creditors, the bill was dismissed with costs. McDonald v. McCallum, 11 Grant, 469. 13 — Assignment of chattels for benefit of creditors — Consid- eration — Description of goods — Afjidavit of bona fides before whom to be swor^i — Addition of assignee. The Con. Stat. U. C, cap. 45, respecting mortgages and sales of personal property, does not require a money consideration. An assignment for the general benefit of creditors, as fur as the effects will go in the discharge of the assignor's liability to them, to- gether with the acceptance of the trust by the assignees, who swear they are creditors, is a sufficient consideration to support the assign- ment. An assignment of " all the stock in trade, merchandise, goods and effects," in the " shop occupied by the assignor, situate on the south side of King street, in the city of Toronto, and known and num- bered 77, which said goods and chattels are particularly mentioned in the schedule annexed hereto and marked A ;" which schedule be- gins " stock in workshops," and goes on describing what is therein ; and next describes what is in the front store. Held sufficient to pass not only what was ooiitained in the front shop first described, but what was contuiued in a continuous shop consisting of the front ■tore and two workshops. Noel et al v. Pell, 7 U. C. L. J., 322. 11 70 EQUITY DIGEST. li— Assignment for benefit of creditors.— Costs. — Legal rights. An assignment was made for the benefit of creditors ; some of the creditors signed it, others sued out utlachments and placed them in the sheriflF's hands, others obtained executions and sought to enforce them against the signing and attaching creditors, The assignment was transmitted to a legal tribunal and declared invalid. The assign ing creditors applied to have the deed upheld and the other creditors to pay their own costs. Held, that the deed should be upheld and that the attaching creditors having sought to enforce their legal rights, should have their costs, but not the execution creditors ; they having sought to enforce their priority, Harris v. Bmttij, 5 U. C. L< J«, 18. Ib—Assigmiunt for benefit of creditors.— Limitation of time. — Assent. A creditor entitled to an assiijnment who does not execute it, but who does some act which amounts to acquicsence is entitled to the benefit of the deed. Pypcr v. McDonald, 5 U. C. L. J., 162. 16 — Assignment for benefit of creditors — Title derived len- der 13 Eliz. and 22 Vic. A trader having become involved, made an assignment of his whole property for the equal benefit of all his creditors. This instrument contained a provision that the creditors should execute before they should become entitled to the benefit of it, that the trustees should be at liberty to retain 2J per cent on all moneys received by virtue of the assignment as a remuneration for their services ; that they might in their discretion employ the assignor in performance of the trusts at a salary of £300 a year, and that they should complete any build- ing contracts already entered into by the assignor ; employ work- men and mechanics, and pay salaries and wages, make advances before they should make any distribution of the estate among the creditors. The plaintiflF purchased the properly in question in this cause from the trustees, and the defendant contracted to purchase the same from the plaintiff. Held, 1st — That the assignment was not fraudulent and void as against creditors under 22 Vic. c. 96. 2nd — That the provision requiring creditors to execute, did not create a preference. 3rd — That the allowance to the trustees was not a preference within the act. 4th — That the clause authorizing the completion of con- tracts before making a dividend might delay creditors. Metcalf v. Reefer, 7 U. C. L. J., 270. ■Release. I 17— Parpens One partner existence or aft( mentoithepro of creditors. \^—FoT the b g^ by deed of veyed all his re: to trustees for i expenses, and x exhausted, the \ to him out of th year, for the su the benefit of t dividend shouU sufficient to pa should release S this deed and s containing a sii parties to it, an vation in his ov irustees acted u ative to pass n plaintiffs, the C: afterwards abai ment. Aftcrw sheriff's hands, ing to have the be allowed to si the stipulation Toronto v. Ee ume 2, page 5 lgt._That 2nd.— Thai certain circuir 3rd.— That anything appt might be opei was allowed t fiQtIITY DIGEST. 71 17 — Partners — Assignment for benefit of creditors. — Power. One partner of a mercantile firm Las no power, either during the existence or after the dissolution of a partnership to make an asign- ment of the property and eflFects of tue firm to a trustee for the benefit of creditors. Stevenson v. Brown, 9 U. C. L. J., 110, 18 — For the benefit of creditors. S, by deed of assignment executed by two of his creditors, con- veyed all his real and personal estate except his household furniture to trustees for payment of his debts, stipulating that after paying all expenses, and until the trusts should be carried out or the property exhausted, the trustees should before payment of any of the debts pay to him out of the moneys realized from the estate, the sum of £375 a year, for the support of his wife and family; that creditors to have the benefit of the deed must execute within a limited time ; that no dividend should be paid to the creditors till a sum had been realized sufficient to pay them 2s. and 6d. in the £, and that the creditors should release S from all further liability. Two creditors only executed this deed and subsequently S made another deed to the same trustees, containing a similar release from his creditors who should become parties to it, and upon similar trusts with the exception of the reser- vation in his own favour which was considered questionable. The trustees acted under the second deed, and though both were inoper- ative to pass real estate, they proceeded to sell the lands and the plaintiffs, the City Bank, became the purchasers, but the purchase was afterwards abandoned because of this defect in the deed of assign- ment. Afterwards a creditor who had lodged an execution in the sheriff's hands, subsequently to the deed of assignment filed a bill pray- ing to have the first deed set aside, or in the alternative, that he might be allowed to share in the proceeds of the estate without complying with the stipulation for a release. Held, in accordance with the Bank of Toronto v. Eccles, reported in the Upper Canada Appeal reports vol- ume 2, page 53. 1st. — That the stipulation for release did not invalidate the deed. 2nd. — That a provision for the payment of a dividend might under certain circumstances be considered unreasonable and fraudulent. 3rd. — That the second deed was not objectionable by reason of anything appearing on its face, although the validity of the first deed might be open to question. Under these circumstances the plaintiff was allowed to share under the deed in such portions of the property «■■■; i ■ ^ 72 EQUITY DIGEST. as had not already been divided among the creditors assenting there- to, upon his executing the deed. All other creditors who had not deprived themselves of the right to come in admitted on the same terms. MuViolland v. Hamilton, 10 Orant, 45. 19. E. L. being embarrassed in business in June, 1857, made an assignment of his goods, lands, &c., to trustees, giving preference to certain creditors. Afterwards E. L. wishing to resume business, proposed that the goods and personal estate should be re-convey- ed to him, and time given under certain conditions for payment of the debts, the lands being conveyed to two creditors in trust for all. This was agreed to by the trustees and most of the creditors, and re- conveyances were executed. The plaintiffs were indurserii on paper of E L, held by M, a creditor preferred in the first assignment, M refused to execute the re-conveyances unless the plaintiffs renewed their liability to him on the paper, then over due, which they did, and M then signed the re-conveyances ; plaintiffs had afterwards to pay the notes held by M, whereupon they filed their bill claiming to stand in the place of M. as preferred creditors under the original assign- ment. Held, that, under the circumstances, they could not claim such priority or the priority provided for them by the first assign- ment, but must rank pari passu with the other creditors. Lawson V. Moffat, 10 Grant, 328. SsE Equitable Asiiqnment— Deed— Fraudulent Assiqn- MENT— -Injunction— Insolvent Act— Insolvent Debtor-— MORTOAQB. ASSIGNMENT BY DEVISEE. Sex Partition. ASSIGNMENT OF JUDGMENT. See Principal and Surety. ATTACHMENT. Abetract of title, 1. Motion tor must be on notice, 2. Agkinat » married woman, 3. Practice as to, 4. For non payment of coats aboliahed. 6. Writ of arrest, 6. 1 — Abstract of title. On moving to make an order nisi for not delivering an abstract of title absolute, it is necessary to shew that it has not been deliver- ed to either party named in the order. Dick v. McNah. 1 Cham. Rep., 31. ^—Motion for Ji. motion was had been orderec and had failed given. Morphy ^—Attachmen A married woi ed to bring cer office, and having for contempt was must answer for exemption. Ma 4 — Practice, a When to issue 184 ; for delivery be personally ser^ abolished, 183. 5 — For non-pi Process of con non-payment of i cree or order of \ any rule or ordei or of a judge th( Court or a judg< ed, arrested or h ial order for tl establishing the order for a writ such case the ar: of attachment cc ad Satisfaciend 6 — Writ of ai But in case a be necessary bei this act to obtai davit than the was obtained. See Annuit tachment-— n K |i»i*: EQTTITY DIGEST. 73 2 — Motion for attachment must he on notice. A motion was made ex parte for an attachment where a reoeiyer had been ordered to make certain affidavits within a limited time and had failed to do so. It was considered that notice must bM hi . f WW ..* 74 EQUITY DIGEST. ATTACHMENT OF DEBTS. Sex Garnishee Obder— Annuity. ATTACHING ORDER. See Interpleader. ATTORNEY. Suit by in another's name. Where a solicitor of the Court of Chancery purchased a widow's right to dower in all the lands of which her husband was seized during her coverture, taking fiom her an assia;nment thereof, and a power of atl 'ney to use her name in sueing therefor, six years after the death of her husband, and several years after the purchase so made by him, filed a bill in the name of the widow for the purpose of having dower assigned to htr in a particular portion of her late^ husband's lands, not noticing the sale to himself, the Court on the application of the widow orderea the bill to be taken off the files with costs to be paid by the solicitor. Mvyen v. Lake, 1 Grant 305. See Attorney and Client, ATTORNEY AND CLIENT. Fraud, 1, 2, 3. Suit between, 4, 6. Attorney declared Trustee, 6. Trustee and cestui que trust, 7 Constructive notice, 7. Purchase for value without notice, 7. 1 — Fraud. An attorney had for a long time been in the habit of advising his client with respect to raising money, and also of getting bills discount- ed for such client ; upon an alleged settlement of accounts it was stated that the client was indebted to the attorney in a large sum, and a formal acknowledgement of such indebtedness was signed by the client. The Court upon a bill filed impugning the bona fides of such settlemoiii, refused to admit the signed acknowledc^ement of debt as prima facie evidence in favour of the attorney. Davis v. Hawke, 4 Jrant, 394. 2. An attorney sold certain lands to his client at u moat exorbi- tant price, and took back a mortgage on the estate sold, and on other lands of the client, securing the amount of the purchase money. The Court on a bill filed, declared that the sale was fraudulent, and that a third party to whom the mortgage had been assigned rathout notice of the fraud, was not at liberty to sue on the covenant for payment of ;5< the mortgage mo out notice, he amount, the Cou lands of the oliei ed. lb. 3. An attorn with a payment o due ; in reality i £125 was the an sold the land to to have a dcmai of proceedings t obtained from When the note b cent commission was done on thrc Court set aside t count of all deali the hearing. G ^—Siiit betwee An attorney di recovery of certt fKmily of the plai instructions from legal estate whicl up in opposition that purpose, the who was bound t buying up the lo: against the rents suit, and the faci taken in his na against the attoi 5 — Refusal to An attorney \ ccedings against client applied to effect, provided 1 act on his behal EQUITY DIGEST. 75 the mortgage money, although as a bona fide purchase, for value with- out notice, he was entitled to hold the land in security for the amount, the Court, however, ordered the attorney to discharge the lands of the client from the incumbrance which had thus been creat- ed, lb. 3. An attorney assigned to his clients a mortgage securing £175 with a payment of £50 endorsed, leaving an apparent balance of £125 due ; in reality no sum whatever had been paid on account, but the £125 was the amount for which the attorney (the mortgagee) had sold the land to the mortgagor. Afterwards the attorney claimed to have a demand againat the client for a bill of costs in respect of proceedings taken upon this mortgage against the mortgagor, and obtained from the client his promissory note for the amount. When the note became duo, the atttu-ney charged the client 5 per cent commission in addition to legal interest on renewing it, and this was done on three several occasions. On a bill filed by the client, the Court set aside the assignment of t'uo mortgage, and directed an ac- count of all dealings between the attorney and client with costs to the hearing. Grantham v. Hawke, 4 Grant, 582, ^—Sitit between. An attorney during the progress of a suit brought by him for the recovery of certain lands with tlu' sanction and approval of the family of the plaintiff, although without his knowledge, and without instructions from him or his agent, became aware of an outstanding legal estate which he purchased for £25, and afterwards set this title up in opposition to the claims of his client. Upon a bill filed ibr that purpose, the Court declared the attorney trustee for the client who was bound to pay the attorney the amount expended by him in buying up the legal title, and in improving the property ; to be set off against the rents and profits received by him, and the costs of the suit, and the fact that the pkintifFwiS not aware of the proceedings taken in his name made no difference in respect of his rights as against the attorney. Oreaves v. Smith, 6 Grant, 306. 5 — Refusal to interfere between. An attorney who had acted for a party, afterwards instituted pro- ceedings against the client to recover his costs, pending which the client applied to the attorney for a loan, which the latter agreed to effect, provided the client did not employ one particular attorney to act on his behalf, desiring the client to obtain the services of some . fcl 'f ' m 76 EQUITY DIGEST. other professional gentleniAn, but which he refused to do, and the arrangement w&s completed ; afterwards a bill was filed to set aside the transaction on the alleged ground of fraud on the part of the at- torney, but the defendant having denied all the allegations of fraud set up by the plaintiff, and the statements of the defendant being corroborated by the signature of the plaintiff, to a memorandum pre- pared by the defendant at the time of the loan being effected, the Court refused to interfere on behalf of the plaintiff, although the at< torney, they thought, should have refused to proceed with the loan without the appointment of a solicitor to act on behalf of the borrow, er. Rtes v. Wittrock, 6 Grant, 418, 6 — Attorney declared trustee. An attorney retained to recover an estate for the heir at law of a former owner bought up a paramount title to that of his client, and obtained possession of the properly which he conveyed to a brother of his client, as the heir-at-law who subsequently sold portions of it to several purchasers, all of whom but one had not paid their pur- chase money, and as to that one he had employed the same attorney to effect his purchase, in fact, the person in whoso behalf, proceed- ings had been taken was not dead, and the attorney had been made aware of it. On a bill filed for that purpose, the purchasers were de- clared trustees for the heir-at-law. Greaves v. Benderton, 8 Grant, 1. 7 — TrvMee and cestui que trust — Constructive notice — Pur- chase for value without notice. An attorney in the prosecution of suits to recover an estate for the heir-at-law, who is supposed to be A, buys in a paramount title for the heir-at-law, and subsequently conveys the estate to A, the supposed heir, who sells and conveys to divers purchasers. On a bill filed by B, the real heir, against the attorney and A, and the purchasers from them, the Court, in this respect, affirming the de- cree below as reported in 6 Grant, page 306, adjudged them to bo trustees for B, although it appeared that the ancestor had long before his death, conveyed away all his interest in the lands for value, (Sir J. B. Robinson, Bart., C. J. dissenting), but some of such purchasers having had a prior or better equity than the plaintiff, the Court varying the decree of the Court below in this respect, directed that they should not be disturbed although they got in the legal estate with constructive notice of the opposing claim, (Esten, V. C. dissent- ing), and also varied the decree as to the other purchasers, by di. reotiog that under the oircumstanQes the aooonnt of the rents and profits a^inst tl of the bill, and gnbstantial repa to that date (Ei notice, and the country, corome Su P&IVIL l—Pro confe Where the a does not put in that he do ans' pro eon/easo a 1 Cham. Rep., 2 — Costs. The attorne; terlootttory api 3 — Charities- A bill was fi religious purpc question arose made a defend; Esten held thi V. Wilmote, 2 4 — Order pr Taylor's on 5— When hi &EE Rail^ To make i when to be se Sbb Sale ■:r: EQUITY DIGEST. 11 profit! against them should be limited to oommenoe from the filing of the bill, and that they should be allowed the fair value of all substantial repairs and permanent improvements made by them prior to that date (Esten, Y. C. dubitante). The doctrine of cosstruotive notice, and the defence of purchase for value, as applicable to this country, commented upon. S. C. on appeal, 2 U. C, E. & A. B., 9. SiK Pbivileoed Communications. — Breach of Trust. ATTORNEY GENERAL. 1 — Pro confesso. Where the attorney general is a party defendant to a suit, and does not put in an answer, the proper course is to obtain an order that he do answer within a week, or in default that the bill be taken pro confaao against him. Spragge, V. C. iShea v. Felhwes. 1 Cham. Rep., 30. %— Coats. The attorney general is never made to pay costs, even upon in- terlocutory applications. Gibson v. Clench, 1 Cham, Rep., 69, 3 — Charities — Parties. A bill was filed to administer an estate and declare a legacy for religious purposes void. The trustees were made defendants, but a question arose whether the Attorney-General ought not to have been made a defiendant. See cases cited, Story Eq., jur., 1163 and 1164, Esten held that the Attorney-General was a necessary party. Long V. Wilmote, 2 Cham Rep., 87. 4 — Order pro con. against — IIoiv obtained. Taylor's orders, 73 ; dismissal of information against, lb 183. 5 — When bill should be filed by. §EE Railway Company. AUCTIONEER. To make affidavit, Taylor's Orders, 119; form of, 307; notice when to be served and on whom, 198 ; form of, 318. See Sale. I t '* ft ■fe : =-#:] 78 SQUITT DIGEST. AWARD. Ultra VirM, 1. Good in part and bod In part, 2. Setting aaide, 3. Void (or irregularity, 4. Attacliment lor non-performance, 6. Revocation of submission, 0. Bupprewlon of a material fact, 7- Witnesiea, 8, 10. Evidence, 9. Bpeoiflo performance of, 11. Jurisdiction, 12. Enlarging time to make, 13. 1 — Ultra vires. Arbitrators appointed under 16 Vic, o. 190, awarded damages for materials taken generally. Held, that the award was ultra vires, they haying power to award damages in respect of materials taken for the road only. GUlam v. Clegkom, 7 Grant, 83. 2 — Good in part and had in part. Although the general principle is that an award may bo good in part and bad in part ; still where arbritrators found a sum of money due to a creditor, and directed the debtor to pay and the creditor to reoei"^ such amount in a certain specified manner, the creditor was not allowed to adopt the award in so far as it found the sum due and reject that portion of it directing the mode of payment. Dalton V. McNider, 5 Grant, 501. .3 — Setting aside. When an award was agreed upon between arbitrators, and after- wards one of them having taken a new view of the case, dissented, and the others, after discussing by letter the dissenting arbitrator's views, made and published the award as formerly agreed upon, it was set aside, because the arbitrators should have met for the discussion ; a correspondence on such a case being insufficient, notwithstanding ^the dissenting arbitrator did not object to that method. Jekyll v. Wadt, 8 Grant, 363. 4 — Void for irregularity. Where the legal rights are not harsh but the award disregards them entirely, it is void for irregularity and partiality, and also where it is imperatively necessary that the award should determine whether a partnership was an ordinary one or not, and was not so clearly determined, the award is void for uncertainty. Ih, 5 — Attachment for 7icn-performance. Where it is necessary to enforce performance of an award, the proper mode of doing so is to serve an order that the party do within a time therein to be limited perform the award, which order must be enclosed with*he notice required, by the 46th of the orders of 1853, An attachment issued for non-performance of an award when no such order had been making the awal been duly serve! Q—Revocatioi When the tii order of Court sent, such meet] cable ; and if re\ be enlarged by not be restraint which it was ai 370. . 'j—Sitppt'essi In the course made in the sui trators which w fact, the Court 386. ^—Witness. Where a wit! without notice i *i— Evidence. Two, out of sence of the ph the two were ii invalidate the i 10— Witness Witness to Rep., 23. l\— Specific The finding judicata bel'w Grant, 385. This Court of a nature pi and that too part of the a^ portion the p EQUITT DIGEST. 79 order had been served wai set aside with costs, although an order making the award an order of Court with such notice enclosed, had been duly served. WiUon v, Switzer, 1 Cham. Rep.. 49i> u. iA. Q— Revocation of submission. When the time for making an award under a submission made an order of Court had expired, and the parties afterwards meet by con- sent, such meetings operate as a mere parol submission, which is revo- cable ; and if revoked, the time for making an award cannot afterwards be enlarged by the Court, and the party making the revocation will not be restrained from merely prosecuting his suit from the point at which it was arrested by the reference. Ruthven v. Roatin, 8 Grant 370. . 7 — Suppression of a material fact. In the course of the proceedings under a reference to arbitration, made in the suit, the defendant made a representation to the arbi- trators which was to influence their conduct, but suppressed a material fact, the Court set aside the award. Hickman v. Law8on, 8 Grant, 386. 8 — Witness. Where a witness for one party is examined in the absence of, and without notice to the other party, the award will be set aside, lb. ^—Evidence. Two, out of three arbitrators, took the evidence of B, in the ab- sence of the plaintiff and of the other arbitrator, by which it. appeared the two were influenced in making their award. Held, sufficient to invalidate the award. Jb. 10 — Witness. Witness to award bound to prove it. Tatflor v. Bostwick, 1 Cham. Rep., 23. 11 — Specific performance of. The finding of an arbitrator when unimpeached is treated as res judicata between the parties to the submission. Bell i). Miller, 9 Grant, 385. This Court when the relief given by the award of an arbitrator is of a nature proper to be specifically performed, will decree that relief, and that too although the Court cannot opecifically perform some part of the award, which is for the benefit of the plaintiff, but which portion the plaintiff consents to forego. i&, rt.f I: •■! 1" 'I i ' t I ^^f i. T^^-yi- Jm S 80 EQUITY DIGEST. 1 2 — Jurisdiction. This Court has jurisdiotioD to carry out the terms of an award which directed the payment of money, although the reference contain* ed no submission to pay, where the reference has been made an order of the Court ; and will in such a case order a reference to the mu- ter, and not oblige the party to sue at law. The judgment in this case reported 2 Cham. Bep., 128, affirmed on appeal. Armttrongv, Cayley, 2 Cham. Rep., 163. 13 — Enlarging time to make award. On applying for an order to enlarge the time for making an award, he original agreement to arbitrate should be produced, or if in the custody of the opposite party, it must be shown that he refuses to give it up ; it is not sufficient that the party swears merely that he cannot procure it. Johns v. Furze, 1 Cham. Rep., 260. BAIL. Right of prisoner in custody to limits. A party arrested upon attachment is entitled to the benefit of the jail limits on production to the sheriff of the certificate from the clerk of the Crown of bail, haying been filed according to the provision of the statute 10 and 11 Vict. c. 15, which places prisoners in cus- tody upon such attachment on the same footing as debtors. Davit V. Caspar, 1 Grant, 354. And where in such a case the sheriff took bail to the limits and discharged the prisoner, an order on the sheriff directing him to pay the amount for which the party had been arrested was refused, the Court considering it doubtful whether the act 10 and 11 Vict. c. 15, would have the effect of the repealing 2 Geo. IV., c. 3, but left the party to his action at law. lb. Semhle. That the bail of a defendant who has been arrested upon a writ of nc exeat, cannot be discharged from their bonds upon the defendant rendering himself to the custody of the sheriff. Mc- Donald V. McDonald, 1 Cham. Rep., 22. See Con. Stat. 278, Chap. 24.— Alimony— Writ or Arbb»t. Collateral security to, 1. Chftrtered banks of I'rov l—CoUatcml si Held, that und( amending the cha authorized to tak security, for sums and that said deb the advances of th temporaneous act! Canada, 7 Grant, Grant, 423. Held, on appoal the chartered banl security for debts mortgages on real time that the mort a jury to dotermin cure the transactic for the mere purp( lb, 423. A mortgage wr sum of £3,800 del £1000 then ad van created a second ii terest, that instrv therein contained of the amounts m( the decree of the ' the £1000, but w standing tliat the had been retired, and also that the £1000, though vc of its execution. 2 — Chartered b The chartered foredosare upon Vp'^H'.' 6c'..'.~. -w :■• L ill f? '■^4 EQUITY DIGEST. BANK. 61 Ctollateral security to, 1. I Directors trustees for stocUhnlders, 3. Chartered banks of Province, 2. | I— Collateral seciirlfy to. Held, that under tlic provisions of the act, 6 Vic, c. 27, s. 19, amending the cliarter of the Bank of Upper Canada, tlic Bunk is authorized to take uiort;^ages upon real estate, by way of collateral security, for sums advanced boiin fc/c in the way of their business, and that said debts need not have been contracted previously, but the advances of the money and the taking of security may be con- temporaneous acts. The Commercial Bank v. The Bank of Upper Canada, 7 Grant, 250. Affirmed on appeal, 3rd February, iSfiO, 7 Grant, 423. Held, on appeal, affirming the decision of tlio Court below, that the chartered banks of thio Province are entitlod to take, by way of security for debts contracted in the legitiimti) b;isiiies3 of banking, mortgages on real estate ; although the money is advanced at the same time that the mortg ige is executed, it would be a question of iact for a jury to determine whether the mortg ige was in truth taken to se- cure the transaction on the note or bill discounted, or the bill created for the mere purpose of upholding and giving colour to the mortg-ige. Ih, 423. A mortgage was created, by way of collateral se.;urity, ibr tiie sum of £2,800 debts then past due to one of the chartered banks, also £1000 then advanced by the bank to the mortgagor, who afterwards created a second mortgage to the bank for the sum of £750 and in- terest, that instrument expressly provided thi^ it and ever]/ thing therein contained should be subject to the payment by the mortgagor of the amounts mentioned in the former mortgago. IMd, affirming the decree of the Court below, that the first iu)rtga'.^e was void as to the £1000, but was valid to secure the amount of £2,8..'0, notwith- itanding tliat the notes held by the bank at the date of the mortgage had been retired, by the discount of other piper, from time to time; and also that the second niortgage was an existing sceuriiy as to the £10110, though void an to the amount of £750 mlvaneed at the time of its exeouiion. lb. 2 — Chartered hanks of Province. The chartered br.nks of this Province have a ri.'ht to a decree of foreclosure upcn a .iiorcgage aeid by them as security. Bank of Vp'^,e;' i/'&.'»c.:;-v ■., o'cr^'. d '3- ':■-..:.«, 45 i. Ii g2 EQUITY DIGEST. 3 Dindors trustees for stockholders. Semble. The directors and managers of incorporated banks are quan trustees for the general body of stockholders, and if any loss should accrue to the bank by their infringing the statute against usury, they would be liable individually to make good the loss to the bank, Drake v. The Bunh of Toronto, 9 Grant, IIG. See Final Oroku. BAxNK AGENT8. The local agents of the Bank of British North America have not authority to grant powers of attorney to third parties, to receive money ordered to be paid to the bank by a decree of the Court. Bank ofB. N. A. V. Rattenhurij, I Cham. Rep., Gf). DANK CHEQUES. If a bank refuse to pay a clieciue when they have sufficient funds of the drawer for the purpose, the holder ca:» compel payment iu equity. But the circumstunce of there being sufficient at the draw- er's credit in the bank ledger at the time of the cheque being presented is immaterial, if the ledger did not shew the true state of the account Gore Bank v. Royal Canadian Bunk, IH Grant, 425. The Royal Canadian Bank held a draft payable in Buffalo, and accepted by a firm there, and for which they held in security certain flour. On the day before the draft iimtured, it being suggested by the drawer that the flour had not been sold, the bank agreed to discount a renewal draft on the same parties and on the same secur- ities, and passed the proceeds ot the renewal to the credit of the drawer, but neglected to charge him with the original draft. Before the letter from the bank to their Buffalo correspondents respecting the transaction reached Bufl'alo, the flour was sold and the original draft paid by the drawer, and they therefore did not accept the renewal. Held, that the drawer was not entitled to demand from the bank the proceeds of the renewal ; and that the holder of his cheque was in u9 better situation than the drawer, lb. BANK MANAGERS. Certificate of non-payment, Taylor's orders, 206 : form of, 330 : pniotioal directions, 332. BANK A debtor of tl having called nj provisions of thi finding the sui. comnii and other sccuril to pay in the nol issued pursuant r Grant, 501. Interest, 1. Party, 2- l^Interest. Where the es in the pound, an all debts proved contract or stat; • to pay it is to b bankrupt, but o itaffe a Bnnkru »— Party. To a suit of f gagor, the bank hottom, 2 Granl 2—Mortgarfe' When a mor pelled to go in under a power 124. Sbb Moutc 1 — Receiver. An agent cl nification in r fore the ban! nothing, and 1 of. Held, th er. Kemp v. ..m EQUITY DIGEST. 8S BANK OF UPPER CANADA, (Late pretended.) A debtor of the late preteoded DanJi of Upper Canada at Kingston having called upon the bank commissioners to arbitrate under the provisions of the statute 10, Geo. IV, c. 7; an award was made finding the sum of £900 due, and directing the debtor to pay and the comnii lO receive that amount in quarterly payments in notes and other securities of the bank. Held that the debtor had a right to pay in the notes of Ihe bank, for which no certificates had been issued pursuant to tiir act of parliament. Dalton v. McNidetf 6 Grant, 501, Interest, 1. Party, 2. BANKRUPT. I Mortgagee, S. 1 — Interest. Where the estate of a b.n krupt is aufficieat to pay twenty shillings in the pound, and a surplus still reiiniins, interest must be allowfdon all debts proved under tlio commission where the debt, by express contract or statutory enactment bc.irs interest, or whore a contraot to pay it is to be implied, before tlio surplus is handed over to the bankrupt, but on no other debts will interest be allowed. Re Laiig- ttaffe a Bnnhnipt, 2 Grant, 165. 2 — Party. To a suit of foreclosure against tlio assignees of a bankrupt mori' gagor, the bankrupt is not a necessary pirty. Torrance v. Winter- bottom, 2 Grant 487. 3 — Mortgarjec. When a mortgagor becomes ban'.rupt the mortgagee is not com- pelled to go in under the act, but n\:\y proceed to sell the property under a power of sale in his mortgage. Oordan v. Ron, 11 Grant, 124. S?!B MOHTGAGE. — REDEMPTION &. BANKRUPTCY. 1 — Receiver. An agent claimed to retain popsession of property for his indem- nification in respect of nccomodation notes given to his principo's be- fore the bankruptcy of the latt»'.r. <,n which, however, he had paid nothing, and he disputed anj liability to the holders in respect thera- of. Held, that the aesic^nee in bankruptcy was entitled to bo receiv- er. Kemp V. Jones, 12 Grant. 260. ;■■•!■'. •t 84 EQUITY DIGEST. 2 In such a case the defendant set up a deftTiCe, founded upon a verbal agreement proved bj his own aflidavit oi'ly, and inconsisteni; with a written instrument, wiiifih purported to contain the agreement entered into between the parties, such agreement having been drawn by the defendant himself, a practicing attorney and solicitor, and •executed by all parties. The verbal agreement was said to have been omitted from the writing througli the confidence existing between the parties. Ildd, that the defence ought U' t t) be pressed on a motion lor a receiver. 1(>, ' BIDJJLXG. See Sale. BIDDINGS. iiee Taylors Orders as to. Need not be ill writing, 119; judge or master may fix reserved, 119; certificate of, 119. Opening biddings, when motion for, 119; to be niudo in Cham- bers, 114; form of notice of motion for, 3.4. See Opening Biddings. BILL OF C03] PLAINT. Service of on attorney or solicitor, 1. Pro confesso, 2. Bill to redeem, 3. Practice as to, 4. Service of, li. Itcniaininpr on files unserved, 0. Aiiieiuliiig, 7. 1 — Service of on attorney or solicitor. Where a solicitor accepts service of an oflacc copy bill of complaint and gives a written undertaking to answer the same, or in case of de- fault, that an order pro conl'esso may bo drawn up, the usual two days' notice of motion for that purpose must be given, and may be served on the solicitor. Ross v Hayes, G Grant, 277. 2 — Pro con. Where service of an office copy bill is effected on the att)rney-at- law of the defendant, a three week's notice of motion to take the bilj pro confesso must be given, the notice may be served on the attorney of the party. WcOHtcr v. O'Clnsfnr, G Grant, 278. 3 — To redeem. On the question arising on demurrer as to whether a bill to redeem should contain an offer to redeem, Mowat, V. C, decided, with- out deeming it the ground tlia tained no offer, V. Campbell, 2 4 — Practice i See Taylor's ed, 222 ; to be filing of, 55 ; ei 174; endorsen bills for foreclo vice, 58 ; on a jurisdictijn, 22 of, by solicitor scandal, 194, r able, 195 ; for closure, redem 66,218; dism time computed set down for, a 107,198; in a of in schedule, 5 — Service oj Where an ea was not served dissolved for tl: Where an ea an office copy « soon as possibl 6 — Bill rem( Where a bil office copy sen bill was ordere Cham. Rep., 1 7 — Amendii Whore the to amend, the may be advisci intended to U EQUITY DIGEST. S5 out deeming it necessary to refer to authorities, that it need not, on the ground ttiat the form given in the orders of bills to redeem con- tained no offer, but simply the prayer for leave to redeem. Pearson V. Campbell, 2 Cham. Rep,, 12. 4 — Practice as to. See Taylor's Ch. orders as to form of, 54 ; to v?hom to be address- ed, 222 ; to be divided into paragraphs, 202 ; parties to, 53, 54 ; filing of, 55 ; effect of, 55, 50 ; with registrar, 55 ; deputy registrar's, 174 ; endorsement of, IGG, 167 ; form of, in ordinary suits, 232 ; in billa for foreclosure and sale, 22 i ; service of, 58 ; substitutional ser- vice, ^8 ; on absconding defendiint, 59 ; absent defendant out of jurisdictijn, 222; on corporation, 187,188; acceptance of service, of, by solicitors, 57 ; form of, 328 ; may bo taken off the file for scandal, 194, not to be excepted to, 194; unnecessary matter tax- able, 195; for discovery in what eases, G7; decrees on bills for fore- closure, redemption and sale, 221 ; certain kinds abolished, 64, 65 66, 218 ; dismissal of, for want of prosecution, 88, 89, 99 ; how time computed, 100, 101 ; if party refuse to be examined, 98 ; when set down for, and at hearing, 194 ; not dismissed for misjoinder only, 107, 198 ; in alimony suits, 13 ; in foreclosure suits, 110, 111 ; forms of in schedule, 225, to 232 ; in appendix, 274 to 288. 5 — Service of. Where an ex parte injunction was served 24th, Dec, and the bill was not served up to the 13th, May following, the injunction was dissolved for the neglect to serve. Meron v. Swisher, 13 Grant, 438. Where an ex parte injunction is granted before the bill is served, an oflSce copy of the bill should be served with the injunction, or as soon as possible afterwards. lb. 6 — Bill remaining on files unserved. Where a bill had been filed, and a lis pendens registered, but no ofBce copy served within the twelve weeks allowed for service, the bill was ordered to be dismissed with costs. Somervillev.Ken',2 Cham. Rep., 154. 7 — Amending. Where the time has elapsed for obtaining the usual order of course to amend, the Court will not grant an order to amend as the plaintiff may be advised as an indulgence on the ground that the plaintiff" had intended to take out the usual order within the proper time, but mm ■^ 86 EQUITY DIGEST. had not done so through a mistake of a clerk of his solicitor. Bowm V. Turner, 1 Chain. Rep., 268. See Amendino— Amendment — Dismissing — Endorsement ON Bill— Husband and Wipe— Identity— Married Woman —Pro Con— Service. BILL OF COSTS. 1 — Petition to tax. On an ex parte application of a client by petition for the taxation of his solicitor's biU of costs, the common order only can be obtained; if a special order is required notice must be given. In re AtJeinton & Pegley, I Cham. Rep,, 187. 2— Petition by client to tax his solicitor's bill. A special order will not be granted, directing the master to en- quire as to the necessity of bringing two suits of foreclosure, respect- ing two mortgages between the same parties, as the master has jurisdiction to make such enquiry and disallow the whole bill without any special direction under the common order to tax. Jn Re Atkin- son & Pegleij, solicitors, 1 Cham. Rep,, 193. 3 Will not be taxed at the instance of one client where two jointly retain. Re Beecher, Barker & Street, 2 Cham. Rep. See Taxation. BILL OF EXCHANGE. Where C shipped flour to the order of a bank for account of L, and ai' the same time drew on L, discounted the bill at the bank, indorsed and delivered to the bank the carrier's receipt, and signed a memoiandum, stating that the receipt had been indorsed as collateral security far the payment of the di-aft, the bank to ^ell the flour, ap- plying the proceeds to pay the draft, and to place the property in charge of any respectable broker or warehouseman, without prejudice to the bank's claim upon any party to the draft. Held, that the bank though bound to retain the flour until the bill was accepted, might then if they chose deliver the flour to L, the fair construction of the agreement being that the retaining of possession until payment was optional with the bank. Clark v. The Bank of Montreal, 13 Grant, 211. BILLS AND NOTES. See Accommodation Acceptor— Discovery. See Marria Breach of covi Where bonds and interest in able in ten yeari of the bonds, on the bonds di( ceed upon the m of other bonds Railway v. The BO] See Taylor's master may ord( 125 ; to be settle in Court of Err where execution allowance of, 24 Council, 253 ; ft 257 , form of, 3 See Securii See Taylor's argument, 255 ; institutions, 26Ji 165 ; deputy re order, 90, 91, 91 116 ; or master, See Bond. See Oonte] ■S- EQUITY DIGES-^k BILL TO CHANGE TRUSTEE. See Marriage Settlement. 87 BOND. Breach of covenant on. Where bonds were given for the payment of a certain sum of money and interest in twenty years, and also mortgages of lands redeem- able in ten years, as security for the payment of the principal money of the bonds, ffeld, that a breach of the covenant to pay interest on the bonds did not accelerate the right of the mortgagees to pro- ceed upon the mortgages ; but they were entitled to a decree for sale of other bonds given as collateral security. The Great Western Railway v. The Gait and Guelph Railway Company, 8 Grant, 283. BOND FOR SECURITY FOR COSTS. See Taylor's Orders as to, 38 ; to be to registrar, 169 ; deputy master may order, 175 ; form of, 320 ; from receiver, to be to master 125 ; to be settled by judge or master, 125 ; form of, 321 ; for costs, in Court of Error and Appeal, 247 ; conditions of, 247, 248, 249 ; where execution stayed, 248 ; sureties of, 249 ; affidavit of, 249 ; allowance of, 249 ; filing of, 252; form of, 318 ; in appeal to Privy Council, 253 ; form of, 319 ; in appeal from County Court, 25, 26, 257 , form of, 319 ; in appeal from Surrogate Court, 259. Ske Security for Costs. BOOKS, APPEAL, &c. See Taylor's Orders as to, 250 ; to be delivered four days before argument, 255 ; public extracts from, 265 ; of trustees of religious institutions, 268 ; master's, 139 ; registrar tu keep solicitor and agents, 165 ; deputy registrars to keep such book, 175 ; fvroduction of, on order, 90, 91, 92 ; of account to be prima facie evidence before judge, 116; or master, 137; may be disputed, 116, 137. BREACH OF COVENANT. Sec Bond. BREACH OF INJUNCTION. See Contempt. 1-^;^^' ■ 1 t '-ti H ■■»(!■»'■ 88 EQUITY DIGEST. BREACH OF TRUST. Solicitor and Client. An execution being in the hands of the sheriff against land, the defendant therein applied to a solicitor to procure his services in ob- taining a settlement of the demands against him, wiih the view of enabling the solicitor to raise funds for that purpose, the client at his solicitor's suggestion, conveyed his lands to him in fee, taking back a defeazance stating the object for which the deed was mad«, but this defeazance was subsequently lost ; in order to raise money the solicitor executed a mortgage for £245, and the mortgagee sold the same to another party for £150, which amount was handed to the solicitor, and thereout he paid the claims against the client^ amounting in all to about £90, Afterwards the solicitor demanded from the client £245, and subsequently £300 as the price at which the client would be allowed to redeem, and this not having been com- plied with, the solicitor sold to a third party for £125 over and above the mortgage, but the purchaser had notice of the claim of the client. Upon a bill filed for that purpose, the Court declared the acts of the solicitor a plain breach of trust, that the client was entitl- ed to redeem upon payment of what was actually expended on his behalf, that the purchaser of the mortgage was, under all the circum- stances, entitled to hold the land only for what he had actually paid and interest, the excess of which, over and above the amount expended for the client, the solcitor was ordered to pay, together with the costs of the suit to the hearing, McCann v. Dempseu, Q Grant, 192. See Attorney and Client—Solicitor and Client— Trust — Trustee and Cestui Que Trust. BRIDGES, CONSTRUCTION BY RAILWAY COMPANIES OVER RIVERS. See Railway Companies. BRIEF. 1— Costs. The Court being dissatisfied with the mode in which the argu- ment was conducted, and the brief of the pleadings had been pre- pared, though it allowed a demurrer to the bill, liquidated the costs at $10 only. McFaden v. Stewart, 11 Grant, 272. 2 — Reading. If objected to, a brief of pleadings cannot be read unless the Court, can refer to the original pleadings or an ofice copy of them to verify the brief. Rattan v. Smiiir., * Jjr:^., ._, ^3._.^ 1 Roads. Where buildin tion of the propei toother purposet Suelnjr.l. . PutiM to suit agtiiiMt, \—Sueing. Held, followin Farmers and Md vol. 9, page 183, name, without ui the purpose. Bank of Upper 2— Parties to s A decree waa c ciety, Bueing on administratioa of with losses which ceased to be direc made parties in t Building Society 3 — Continuinc, Where a buildi minated in ten y( ing members, as continue paying i reached the amou Building Society ^Fines. Where a mortf had become the mortgage was coi tions upon such i by equal monthly ion for the sale o retaining out of i £7U0, then rema due- or payable t< fore paid, and in M EQI^ITY DIGEST. BUILDING LOTS. 89 Roads. Where building lots have been sold according to a plan, the por- tion of the property laid off as roads cannot afterwards be diverted to other purposes. Rosain v. Walker^ 6 Gram 619. BUILDING SOCIETY Sueintr, 1. PutiM to suit against, 2. Continuing monthly payment, 8. Fines, 4, 6, S. 1—Sueing. Held, following the ruling of the Court of Queen's Bench in the Famer$ and Mechanics^ Building Society v, Latig staff, IJ. C. Q.B. vol. 9, page l83, that a building society may properly sue in their name, without using the name of their president and treasurer for the purpose. The Canada Permanent Building Society v. The Bank of Upper Canada, 10 Grant, 203 2 — Parties to suit against. A decree was obtained in a §uit by a shai-eholJer of a building so- ciety, sueing on behalf of himself and all other shareholders, for the administration of the assets of the society, and charging the directors with losses which had been sustained. Held, that persons who had ceased to be directors before the suit was commenced, could not be made parties in the master's office. Ralph v. The Upper Canada Building Society. 11 Grant, 275. 3 — Continuing Monthly Payments. Where a building society should, if properly managed, have ter- minated in ten years, but did not terminate then. Held, that borrow- ing members, as well as non-borrowing members, were bound to continue paying their monthly subscriptions, if necessary, until they reached the amount of their shares, WiUon v. The Upper Canada Building Society, 12 Grant, 206. ^t—Fi/aes. Where a mortgage, given by a borrowing member, recited that he had become the purchaser of seven shares of £100 each, and the mortage was conditioned for the payment of the monthly subscrip- tions upon such shares and of interest upon the said sum of £700 by equal monthly payments of £3 10s. each, and contained a provis- ion for the sale of the property in case of default, and for the society's retaining out of the proceeds, the remainder of the principal sum of £7U0, then remaining unpaid, and all interest, fines and other sums due* or payable to the society, giving credit for subscriptions thereto- fore paid, and interest thereon at six per cent from the timo of luoh ^ !H' ▼^ ll'. 90 EQUITY DIGEST. respective pajments, and for payment of the surplus to the mort- gagor. Htld, that the mortgagor was not liable to pay £3 lOs. a month or 10s. per share for interest for the whole period but onlj at that rate on so much of the £700, as from time to time was due, after giving credit for the monthly subscriptions paid ; a rule of the society declared that in case of default in paying the monthly sub- scriptions, the defaulter should pay a fine of three pence per share for the first month, six pence for the second, one shilling for the third month, doubling the fine for each suceeding month till the expi- ration of the first six months, and that after that time if the same re- mained unpaid, the share should become forfeited. Held, that no fine was chargable after the expiration of the first six months, lb. 5 Such a rule for the paying of fines, cannot be waived by the directors, lb. 6 Where the members ceased paying; their monthly subscriptions in ten years after the establishment of the society, under the sup- position on the part of all that the society should then terminate, and did not resume paying the same, but it was subsequently found that from mismanagement and losses further payments were necessary. Held, that the rule as to fines was not to bo enforced as regards monthly subscriptions falling due after all had ceased to pay. lb. BY-LAW. Sek Muntoipalitt. CANADA COMPANY. See Deed. CARRIAGE OF DECREE. On an application in Chambers by defendant for carriage of decree, the plaintiff who was entitled to it not having gone in within the fourteen days, &c., &c., it was held, that the application was proper- ly made. Emet v. Ernes, 2 Cham. Rep., 57. CANCELLATION OP DEEDS. In 1819 one Street agreed in writing with one Ryckman, to furnish the latter with certain supplies, in consideration of which Street was to receive from Ryckman the conveyance of certain lands, and the agreement was deposited with one Benson, the supplies were only partly furnished, the lands to be c( livered to Street deeds to Street o on his presenting forthcoming, the and no explanati cidently destroy( have been afterw bill was filed by defendant who c conveyed the pro anco and for the the defendant ck costs. Street v. 1 Tho ccrtif clerk of the Que seal," and it bei under the seal o: to produce an af certificate. Pre 2 A confess thtw Rodger. against Mattheu tration. McDo [But see Pr( Semble, Th the amount of { Sek Dismis Sbe AEsr And Cestui EQUITY DIGEST. 91 partly furnished; but in 1824 deeds were prepared by Ryokman of the lands to be conveyed, and where handed to one Shook to be de- livered to Street ; on getting up the agreement Shook delivered the deeds to Street on getting an urdor on Benson for the agreement, but OD his presenting the order, it was found that the agreement was not forthcoming, the agreement afterwards got into Street's possession, aad no explanation was offered of this; in 1825 the deeds were ac- cidently destroyed by fire ; eeveral actions of ejectment appeared to have been afterwards brought and with varying results, and in 1850 a bill was filed by Street's devisee of part of the property against the defendant who claimed under Ililes to whom Ryckman had sold and conveyed the property, iu 1332. The bill which prayed for a convey- ance and for the cancellation of tho subsequent deeds under which the defendant claimed, was under tho circumstances, dismissed with costs. Street v. Hogaboum, 3 Grant, 128. CERTIFICATE OP JUDGMENT. 1 Tho certificate for registration of a judgement given by the clerk of the Queen's Bench, czprcHscd it to be under " my hand and seal," and it being objected that it hhouM have been expressed to be under the seal of the Court, leave w;is given to a judgment creditor to produce an affidavit to shew wh:it seal was really affixed to the certificate. Proudfoot v. Lount, 9 Grant, 70. 2 A confession of judgment was executed in the name of Mat- thew Rodger. The certificate for registration was of a judgment against Matthew Rodgers. Held, that the mistake vitiated the regis- tration. McDonald v. Rodgers, U Grant, 75. [But see Proudfoot v. Lount, 9 Grant, 70.] Semble, That in a certificate of judgment it is lufficient to state the amount of the true debt. lb. $ CERTIFICATE OF REGISTRAR. See Dismissinq Bill. CESTUI QUB TRUST. See AasiTRATOB — Married Woman — Trust— ••TbtibtiE} And Cestui Que Trust. IMAGE EVALUATION TEST TARGET (MT-3) 1.0 ^1^ 1^ ■tt I8i2 12.2 S 134 ■■ Sf li& 12.0 I.I ■U *" FholDgFaiM: Sdmoes Corporatian ^ v" <«s ^'*' \ 'Q ' ^ ,*>. 13 WnT MUUN iTIMT \Nnfm,N.Y. 14SM (71«)t7a-4S03 '^ 92 EQUITY DI6IST. CHAMBERS. A judge in Chambers has a discretion to refuse to adjourn any matter to be heard in Court. Walsh v.De Blaquiere^ 12 Grant, 107. A judge in Chambers may issue a writ of hihea» corput. Re Pa- ton, 4 Grant, 147. CHAMPERTY. Sib Mobtgage. CHANCERY ACT, ELEVENTH CLAUSE OP. \fpxaled Subjects— Mortgaos. CHANCERY SALE. Surprise. One of the testator's sons bid at a chancery sale of his father's pro- perty, such bidding being by those present supposed to be for himself, but being in reality for another person who had secretly employed the son to bid under the expectation that there would be less compe- tition against the son than against a stranger, and the property was knocked down to tho son, but the contract thereupon was signed by his principal, and it appeared that the effect of the son's bidding be- ing supposed to be for himself, hud been to deter others from bidding; the Court holding this to be a surprise on other bidders and an unjust advantage to the purchaser, refused to enforce the purchase, and directed a re-sale at the risk and cost of the purchaser. JRodgen v. Rodgers., 13 Grant, 143. (On a re-sale, the property was bid off by the same purchaser at an tdTanoe of about $560 on the price bid at the first sale.) CHANGE OF PLACE FOR PAYMENT OF MORTGAGE MONEY. Where mortgage money was ordered to be paid into an agency of the Bank of U. C„ and afterwards and before the day appointed for payment, the agencT was closed ; on a motion to substitute another bank at the same place, held, that a new day for payment must be ^ed and the order serred. King v. Connor, 1 Cham. Rep., 274. CHANGING SOLICITOR. A lolioitor may be changed without order, Baikjf v. BaiUy, 2 ClMtm. Rep., 67< On an appli cation having I and to amend lar case havin which he gave made at once ^ and on a new Baxter v. Can Sbb Parti Tariff of, hy The act ino( to levy such to to be sanction( charged at all droumstance o ber to be trane the same at a 1 generally ; but pany. The C and enjoined t than were ohai AtUymey-Qena Company, 6 G CHi Sbb Will Sbb Atto FoTMlMure, 1. Sale.S. RiflitntioB, S, 4. 1 — Foreclos The mortg titled to a foi by laoh mor^ s EQUITT DIGEST. 93 CHANGING VENUE. Oa an applioatioa to change the venue it was objected that publi- cation having passed, the motion should Lava been to open publication and to amend bill by introducing words changing the venue. A simi- lar case haying been mentioned as heard before V. G. Spragge in which he gave effect to the objection, but allowed a new motion to be made at once without notice. His Honor followed the same course, and on a new motion being made granted the application on terms. Baxter v. Campbellf 2 Cham. Rep., 39, CHARGE AND DISCHARGE. Su Partnebship. CHARGES. Tariff of, by a railway company. The act incorporating a railroad company authorized the company to levy such tolls only as should be fixed by by-law of the company, to be sanctioned by the governor, and that the same tolls should be charged at all times equally to all persons. The company, from the circumstance of a firm covenanting to furnish certain quantites of lum- ber to be transported over their line of railway, contracted to carry the same at a lower rate than that fixed by their tariff for the public generally ; but no by-law to this effect had been passed by the com- pany. The Court, upon a bill filed, declared such contract illegal, and enjoined the company from continuing to carry at other rates than were charged for the like services to the public generally. The Attorn^- General v. The Ontario, Simcoe and Huron Railroad Company, 6 Grant, 446. CHARITABLE USES, VOID DEVISE TO. Su Will. CHARITIES. Sbb Attobmit Gbneral. CHATTEL MORTGAGE. FonelMun, 1. 8tl«,t. Rtgiitntion, 8, 4. Contnot in restraint of trade, 4. Chattel mortgage act, 4. Notice, 4. 1 — Forecloaure. The mortgagee of chattels, like a mortgagee of real estate is en- titled to a foreclosure in default of payment of the amount secured by rooh mortgage. Cook v. Floods 5 Grant, 463. ■Ml i 94 EQUITY DIGEST. 2— Sale. Where a party held a mortgage on chattel property, and also mort- gages on real estate, the Court refused to make a decree for sale of chattels and of foreclosure as to reality. Jb. 3 — Registration. Where parties employ an agent to quarry, and get out a quantity of Jtone for the purposes of certain works then in progress, and for the purpose of carrying out the agreement, made advances in money, and by the terms of the contract entered into between them, it was stipulated " that upon all materials upon which the parties of the sec- ond part Bhall have made any advances, the said parties of the second part shall have and retain a first lien and preference for all moneys advanced upon the same, or under this contract, and the same shall become from the time of their preliminary construction, the absolute property of the parties of the second part, subject to the right of the parties of the second part to reject the same, should the same be re- jected as hereinbefore mentioned, nor shall the same unless afterwards rejected be removed by the said party of the first part or appropria- ted to any other use than that of the said works, but it is distinctly understood that all such materials as well as all tools, instruments and other things shall be in the charge, and at the risk of the party of the first part." Held, that as against a subsequent bona fide pur- chaser, such contract was fraudulent and void for want of registration. Hovoitt V. Gzovoski, 5 Grant, 555. 4 — Contract in restraint of trade — Chattel mortgage act — Notice— Registration. On a sale of goods upon credit to a trader, the purchaser executed a deed covenanting with one E F, a clerk in the employ of the vendor to buy all lis goods from them, and that £ F should be at liberty at any time thereafter, during the time such business might be carried on to enter into the place of business, and take possession of the goods and premises, and wind up a£fairs. The business wag carried on ibr two years and a-half, during which time the vendors delivered goods to a large amount in pursuance of the agreement. Held, that tne covenant, not to purchase elsewhere was not bmding on the pur- chaser ; but that as he had received goods under the agreement, there was a sufficient consideration for the covenant to purchase from the vendor alone, so as to entitle them to the remedies given by the deed, and that this was not such an agreement as required to be registered under the chattel mortgage act to enable the vendors to hold as against subsequent pui 9. 1 — Assignee To enable tli for its recovery staole in his wa Munro, 6 Grat 2 — Voluntar The holder c Church, transf indorsement as the same to t1 such transfer <] the claims of 1 attaching upoi I— Act of S The act 3 M ties, is not c jn communion wi $on V. Mitchell 2— Costs. The incumb churchwardens bent, the pro; bishop and cei church, and ot premises. Th incumbent to < the matter had strictness the I dismissed, tith 1 — Correcth It was held should be on r 8imp$on V. EQUITY DIGEST. 95 subsequent purchasers with notice. FUken v. Rutherford^ 8 Grant, 9. CHOSE IN ACTION. 1 — Assignee of. To enable the assignee of a chose in action to proceed in equity for its recovery, he must show the existence of some difficulty or ob- stacle in his way to prevent him from recovering at law. Ross v. MunrOf 6 Qrant, 431. 2 — Voluntary assignment of. The holder of a debenture issued by the trustees of a Methodist Church, transferred the same without consideration by signing an indorsement as follows, " pay to James Gott or order," and delivered the same to the person named in such indorsement. Held, that such transfer did not vest the debt in the transferee so as to prevent the claims of the creditors of the original holder of the debenture attaching upon it.' Gott v. Gott, 9 Grant, 165. CHURCH TEMPORALITIES. l—ActofSVic.,74>. The act 3 Vict., c. 74, for the management of church temporali- ties, is not cjnfined to parish churches, but embraces all churches in communion with tbo united Church of England and Ireland. Sau' ton V. Mitchell, o Grant, 582. 2,— Costs. The incumbent of a church, without the consent of the bishop or churchwardens, took a deed of land in his own name as such incum- bent, the property having been previously contracted for by the bishop and certain members of the congregation for the site of a church, and on his retirement refused to execute a release of the premises. The Court, under the circumstances, ordered the retiring incumbent to execute a release of the estate, and as his conduct in the matter had been unreasonable, refused him his costs, although in strictness the bill so far as it sought u conveyance ought to have been dismissed, title having already vested in his successor. Ih, CLERICAL ERROR. 1 — Correcting. It was held that a motion to correct a clerical error in a report should be on notice, unless on consent of all parties. — Mowat, Y. C. Simpton V. Ottawa, 2 Cham. Rep., 12. J£L 96 fiQUITY DIGEST* 2— In rnaster's feport. An order to corrjot a clerical error in a maater's report will be granted ex parte. Watton v. Moore, 1 Cham, Rep., 266. CLOUD ON TITLE. Sbi Plbadinq— Title. CO-DEFENDANT. Skb Plbading. Se Alihont. CO-HABITATION, COLLATERAL ISSUE. In a snit to declare conveyances to a wife void as against creditors, it was alleged that the land had been conveyed by the father of the wife to the husband after executing his will, (whereby he devised the same property to his said daughter), under pressure and undue influence such as, if true, to render the deei' lable to be impeached on those grounds, but the Court refused to try such issue in the present suit, as the creditors of the husband were entitled to make out of his title to the property at the time of the conveyance impeached what they could towards satisfaction of their claims. P^ff v. Ecutmm, 13 Grant, 137. COLLATERAL SECURITY. Pirty redeeming entitled to, 1. On rad estate to bank, 2. To uoure bank diaoounta, &&, 3. Defence at law, 4. Plea ot payment, 4. 1 — Party redeeming entitled to, i:c. A judgment creditor coming to redeem a morigage incumbrance, is entitled upon payment of the amount due to the mortgagee to an assignment not only of the mortgaged premises, but of all collateral securities, whether the same be subject to the lien of the creditor under the judgment or not. Therefore, where judgment had been recovered, and duly registered against a party who had a contingent interest in real and personal property, subject to a mortgage executed by way of security tbr advances, and the debtor having effected an insurance upon his life, which he had also assigned to the same per'- son as an indemnity against loss in respect of a bond executed by him as surety ibr i mor^agor, up< demnifying th entitled to a ti gage upon the de. lult of pay 2 — On real Held, on a\ chartered ban security for d uortgt^es on same time tha fact, forajur; to secure the created for tl mortgage. 2 7 Grant, 423 3 — To secur A mortgagi of £2,800 de also £1,000,1 afterwards ci interest ; thai therdn contai of the amoun the decree of the £1000, 1 standing thai had been ret and also thai £1000, thou its ezecutioc 4) — Defend A defendi or neglectini facts as a d< ment at law An actioi the defenda curity for a denoe to eai N fiQlJlTY DIGEST). 91 as furety for the debtor, Held, that the judgment creditors of the mortgagor, upon paying the amount due under the mortgag and in- demnifying the mortgagee in respect of his liability as surety, were entitled to a transfer of the policy of insurance, and also of the mort* gage upon the contingent interest, and to foreclose the mortgagor in de. ittlt of payment. Gilmour v. Cameron, 6 Grant, 290. 2 — On real estate to hank, Held, on appeal affirming the decision of the Court below that chartered banks of this province, arc entitled to take by way of security for debts contracted in the le;^itimatti business of banking, mortgages on real estate, although, where money is advanced at the same time that the uiortgage ia executed, it vould be a question of fact, for a jury to determine whether the mortgage vfus in truth taken to secure the transaction on the bill, or note dL^icountcd, or the bill created for the mere purpose of upholding nnd giving colour to the mortgage. The Commercial Bank v. The Iltiifc of Upper Cam/.da, 7 Grant, 423. 3 — To secure bank discounts, rtgagor of the amount mentioned in the former mortgage. //eZrf, affirming the decree of the Court below, that the first mortgage was void as to the £1000, but was valid to secure the amount of £2,800, notwith- standing that the notes held by the bank at the date of the mortgage had been retired by the discount of other paper from time to time ; and also that the second mortgage war", an existing security as to the £1000, though void as the amount of £750 advanced at the time of its execution. Ih. 4 — Defence at law — Plea of 'payment A defendant at law, pleading a plea of payment, and either failing or neglecting to establish the plea, cannot afterwards set up the same facts aa a defence to a bill in equity to enforce payment of the judg- ment at law. An action at law having been brought upon a promissory note, and the defendant having pleaded that it had been given as collateral se- curity for another debt, which had been paid, but adduced no evi- dwoe to Mtablish thii fact, was held preoladed in a roit afterwards ^i-a %> iT"? ^r' 98 EQUITT DIGEST. inatitnted in the Court of Chancery to enforce the charge of the judgment against the lands, from shewing any payment prior to the time of plea pleaded. (Esten V. C, dissentiente.) Carpenter v. The Commercial Bank of Canada, 2 Grant, E. & A. R., 111. Sn Judgment Creditor — Mortqaoe — Principal and SURBTT, COLLECTOR. To prove payment of taxes, it is not necessary to show that the collector was duly appointed, it is sufficient to shew that he acted and was acknowledged as such. Smith v. Redjord, 12 Grant, 316 COLLUSION. M mortgaged land to B to secure $400, and atlterwards oaused the premises, consisting of a park lot, to be divided into village lots and plans thereof made. M then became indebted to C and others, who obtained judgments against him, and lodged writs in the hands .)f the sheriff of the county in which were the above premises. W was then also a creditor of M, by simple contract. B advertised the pre- mises for sale under the power of sale contained in his mortgage, such sale to be in village lots according to the plan thereof. M and the sheriff, in whose hands were the writs of execution, previous to thedayof sale, agreed together that the sheriff should buy in the premises at the amount due B, and hold the same in trust for M, It was found difficult at the sale to sell the premises in village lots ; at the suggestion of the sheriff, and with M's consent, they were put up en hhe and bought by the sheriff for the amount due B. W afterwards obtained judgment and issued execution against lands, and on a bill by C and W against M, the sheriff and B, the sale was let aside as collusive and tending to delay creditors within 13 Eliza- beth, c. 5. Wtaton V. McCarthy, 10 Grant, 416. COMMISSION. Onltrn,otlU7,18M, 1. On money, 1 To oxunlne vitnaiMs, 8. Opening foreltm commieiion, S, i. To examine wltneei abroMl, 6. 1— Order 63, of May, 1850. The 53rd order of May, 1850, does not apply to a foreign com- niMioD for taking dtpoaitionB. Avm,ymiout, 2 Grant, 1 22. 2 — On fnonei Where an ex< for which on pa with interest an to the condition allowed his com Grant, 523. 3 — To examii After notice ( of an intestate, witnesses, with ing for the ordc V. Cruiekthank ^—Opening It is not nec< commission whi open it without Pigott, I Cham 6 — To exami In moving fo abroad, with a i a master, the pi master's certific Mean, 1 Cham Committee of The recognii will not be deei 2 Cham. Rep., For non-ezeeution o Oiderto, ooetii, &c.. Non-payment of moi ImguUrlty, 4. 1 — For 7ion-i Where an oi conveyance, wl for exotttion it execution in at EQUITY DIGEST. 99 2 — On money. Where an executor had retained money in his hands unemployed, for which on passing his accounts, he was charged by the accountant with interest and rests. Beld, notwithstanding, that having reference to the condition of the estate, and the facts of the case, he should be allowed his commission and costs of the suit. Govid v. Burritt, 11 Grant, 523. 3 — To examine witness. After notice of motion served for an order to administer the estate of an intestate, a commission may be obtained for the examination of witnesses, with a view of establishing the fact that the party apply- ing for the order, is one of the next of kin of the intestate. Farrell V. Cruiekahank, 1 Cham. Rep., 12. 4 — Opening Foreign Commission. It is not necessary to obtain an order for leave to open a foreign commission which has been duly returned. The proper practice is to open it without order in the presence of all parties. Chahnert v. Pigoit, 1 Oham. Rep., 282. 6 — To examine witness abroad. In moving for an order for a commission to examine a witness abroad, with a view of using his evidence in a pending reference to a master, the proper evidenca on which to obtain such order ii the master's certificate, and not an affidavit as to the facts. St^Kma v, Jlitara, 1 Cham. Rep., 200. COMMITTEB. Committee of Lunatic — Receiver — Security from. The recognizance of the committee of a Lunatic, or of a Receiver will not bo deemed sufficient security under the statute. Be Wardf 2 Cham. Rep., 188. COMMITTING. For non-exaeutlon of oonveTance, 1. Order to, ooata, Ac., 2. Non-pAyniMiit of money, 3. Irretpilwity, 4. Service on solicitor, 6. For refuaing to eUga depoeltionf , 9. Notice of motion, 7. 1 — For non-eooecntion of conveyance. Where an order to commit is sought for the nonf ,r.,K 102 EQUITY DIGEST. reciting that an agreement to that eflfect had been come to, and con- veying certain property to the trustee to secure any person or persons who might endorse the composition notes which the debtors were to receive. B a creditor, indorsed the notes of the other creditors, bat was to receive payment in full of his own demand, Beld» that the trvst deed was not a security for the notes he endorsed, the deed being available only ii' the composition waa accepted by all the oreditoM. lb. Sex PuNOiPAL and Subktt. COMPUTATION OF TIME. SXE TlHl. SsE Will. CONDITIONAL BEQUEST. CONDITIONAL DEVISE. L devised lands to his widow " provided she does not marry or misbehave," and to his son after his wife's death. Held, that the widow's estate was not absolutely determined by her marrying again, the partjy next entitled not having claimed the estate. Leeeh v. XmcA, 11 Grant, 572. CONDITIONAL SALE. One of the tests by which a conditional sale is distinguished from a mortgage is the adequacy of the consideration. Where, therefore, it was shewn that the plaintiff had conveyed an estat* for less than one-fourth of its value with a clause giving him the right of re- purchase, the conveyance was declared to be a security only. Stew- art V. Horton, 2 Grant, 45. CONDITIONS OF SALE. Where the ti^le, or the proof of it is involved in no difficulty, a condition of sale that, <* the vendor is not to be bound to give any evidence of title, or any title deeds, or copies thereof, other than such as are in his possession, or procure any abstract," was held to bo very objectionable, and should not be sanctijned by masters even by consent. McDonald v. Gordon, 2 Cham. Rep., 125. Sn SPEOino Pxbfoehanob. A vendee oo and to build a upon payment other covenanti question, the vi ment of the pu or building the interest, and d bill for specific refused relief, 4 Grant, 439. See Sfecii See Alimo Confidential Where a soi ntss— the fatb attend to his l mother of thei the son himsel of the deeds w perfectly undo and advice to the deed was t cise of any of the donee put Mason v. Sen { See Volu Sex Alih Consent of Where an EQUITY DIGEST. 103 OONDITION PKEOEDENt. A sendee oo? enanted to fence the land oontraeted for forthwith and to baild a house within a limited time, and the vendor agreed, open payment ot the purchase money and the due fulfilment of all other covenants entered into by the vendee to convey the promises in qaestion, the vendee without waiting for the time appointed for pay- ment of the purchase money, and without either fencing in the land or building thereon, tendered the amount of his purchase money and interest, and demanded his deed, which being refused, he filed his bill for specific pui tormanoc of the agreement to convey, the Court refused relief, ^nd dismissed the bill with costs, Allan v. Drown, 4 Grant, 439. SxK Specifio Performance. CONDONATION, See Alimony. CONFIDENCE. Confidential relation. Where a son who had the entire management of his father's busi- ness — the father being old, and having for years been unable to attend to his business — obtained deeds of gift from his father and mother of their property without the intervention of any adviser but the son himself) and failed to give evidence that the nature and effect of the deeds were fully and truly explained to the donor, that he perfectly understood them, that ho was made alive by explanation and advice to the effect and consequences of executing it, and that the deed was a willing act on his part, and not obtained by the exer- cise of any of that influence which the confidential relationship of the donee put it in his power to employ, the deeds were set aside. Maaon v. Seney, 11 Grant, 447. CONFIDENTIAL RELATIONSHIP. See Voluntary Gonyeyanoe, CONJUGAL RIGHTS. Sex Alimony. CONSENT. Consent of parties to a suit in person — Proof of. Where an order is moved for on the consent of parties in perio&» v. > i' 104 fiQiriTY DIGEST. the consent must as a general rule be executed in the presence of a sulicitor, and an affidaTitfrom such solicitor must be produced verify- ing the execution and shewing that he read over, and explained the consent to the parties before they signed it, and that they under- stood, or that the deponent believes they understood its meaning and effect. Thornton v. Hooke, 1 Cham. Kep., 325. Consent relieved against — Motion to set aside a master's reports-Chambers application. In a partition suit, a gentleman, who was not a solicitor nor a client of any solicitor in the cause, was empbyed by the defendant's solici- tor to attend to the case for the defendant, and ga^e a consent in good faith, but inconsiderately, and without the knowledge or authority of, or communication with the defendant or his solicitor, to a mode of partition suggested by the opposite party. Held, that the consent might be relieved against on terms, it not appearing that the plaintiff would thereby be prejudiced. Held, also that an application for relief against the consent, and to set aside the report, was properly made in Chambers and not in Court.— i&?/e V. Coote, 1 Cham. Rep., 308. Consent of party — How verified. Whereon an application for an order, a consent of a party to the cause, is produced as a ground for making the order, it must be shewn that the effect of signing such consent was explained to the party and was understood by him. Tnietnan v. School Trustees for Peel, 1 Cham Rep., 256. CONSIDERATION. Against public policy. Upon re-hearing the decree pronounced in this cause declaring that a conveyance made for the purpose of enabling an irresponsible person to justify as special bail, was a transaetion against good con- science and morality, was affirmed with costa. Langloia v. Baby, 11 Grant, 21. Six Convxtanoi. Note given without. Where the maker of a promisory note was sued thereon, and in stead of raising the defence at law, that the note had been given without consideration in that, save as to part, no valu« had been reoeired by the not the holder defendant for I the lands was s the defendant i A demurrer foi Orant, 81. Six Plkad CONSOLl Loan to I Comities — L The United cation for and < 0. 22, a loan oi certain roads o Hope was no Hope itself rail the purpose of the improveme in addition to i liable for its pr The town 9f I and Durham, 29 Vict. 28 i On a petitio tion of a will i could not give Court declined per. In re G Six Atto: dxoibiomi xd subjkots EQtJItT DIGEST. i06 rtoeiTed by the maker, pleaded that the plaintiff in the action was not the holder of the note, and a veruict was rendered against the defendant for the full amount thereof, for which execution against the lands was sued out, and placed in the sheriff's hands ; whereupon the defendant in the action filed a bill to restrain proceedings at law. A demurrer for want of equity was allowed. Leitch v. Leitch, 11 Grant, 81. Su Pleading. CONSOLIDATED MUNICIPAL LOAN FUND ACT. Loan to United Counties — Loan to town within United Gomdiea — Liability of said town. The United Counties of Northumberland and Durham made appli- cation for and obtained, under the Municipal Loan Fund act, 16 Yic, c. 22, a loan of the sum of £115,000, for the purpose of constructing certain roads of the united counties, in which roads the town of Port Hope was not directly interested. Afterwards the town of Port Hope itself raised a large sum of money under the same fund, for the purpose of adding in the construction of certain railways, and for the improvement of the Port Hope harbour. Held, that the town, in addition to its direct liability for the last mentioned loan, continued liable for its proportion of the debentures issued by the united counties. Tht town 9f Port Hope v. the United Counties of Norikumherland and Durham^ 7 U. C. L. J.,21. CONSTRUCTION. _: p 29 Vict 28 sec. 31. On a petition to obtain the opinion of the Court on the construc- tion of a will under 29 Vict. ch. 28 sec. 31. Held, that the Court could not giyo an opinion on such a point upon petition, and the Court declined to make an order saying whether a bill would be pro- per, in re Ceasat't Willy 13 Grant, 210. CONSTRUCTIVjbI NOTICE. Sn Attornet and Client — See same Headino vndbe Oeoibioni Overruled ; also Appealed Cases and Appeal- ed Subjects. ^t% 106 EQUITY DIGEST. CONTEMPT. Non-payment of ^noney ordered, 6. Coits myme of,0. Breach of injunction, 1,2. Raeeirer, 8. Objection of, to party moving, 4. . 1 — Breach of injunction. Quctre. Whether a party whose committal has been ordered for breach of an injunction, and against whom a sequestration has been granted for the same contempt, can move against the writ before clearing his contempt. Prentiss v. Brennan, 1 Grant, 497 and 428. 2 The Oourt refused a motion to commit for breach of injunction, wher* the defendant made an affidavit of having complied with the writ, even though the affidavit was contradictory to a statement per- sonally made by him, but the defendant was ordered to pay the costs of the motion, as his conduct had caused the motion to be made. Campbell v. GorJuim, 2 Grant, 403. 3 — Receiver. Where an order is made on a receiver for paym«nt of a sum of money, the Oourt on default, will commit for a contempt of such order without requiring any further order tt be issued. Mcintosh V. Elliott, 2 Grant, 396. 4s— Objection of to party moving. It would seem that a plaintiff prosecuting his decree is entitled to do so, notwithstanding he may have been placed in contempt for dis- obedience to an order of the Court for payment of money. In such a case the defendant must obtain an order staying proceedings until the contempt is purged. Hurd v. Robertson, 1 Cham. Rep., 3. 5 — Non-payment of money ordered. The Court will not detain a person in gaol merely for the non pay- ment of money, but in order to punish any one who has been guilty of a contempt of Court, it may imprison him for a stated period, al- lowing him to be discharged if he pay the costs of his contempt before the expiration of such period. The Court will entertain ap> pimtions affecting the liberty of the subject during long vacation. Poverty is no excuse for delay in making an application to the Court, as in such case the party can apply in forma pauperis. Harris v. Myers, 1 Cham. Rep., 229. 6— Coate of A party, who was in contempt to an attachment for not bringing accounts into the master's office for the purpose of a reference, after- wards filed the same with the master, but neglected to pay the opposite party t and a motion w counts 60 brou{ that tho party i order was grani 1 Cham. Bep., Seb Attao] —Specific Pj Of lost will— See Lost ^ Time, determinatioi Uncertainty, 2. Specific penormonc I— Time, De Semble. TI lation to sales, doctrine of La( which time is i tract in conset proper mode oi in a period to O'Keefe v. Tar 2 — Uncertai When a con of lot seventee mill on lot si quantity of lai by the verdict not such an ui void. Hooke S— Specific ^ In the <» opinion amou lands in quesl wrote a letter sage; *U an t EQUITY DIGEST. 107 opposite party the costs of the pm^eediogs to put him into contempt, and a motion was now made ex parte for an order to remove the ao« counts eo brought in from thie files in the master's office, in order that the party might be proceeded against for the contempt. The order was granted accordingly. Spragge Y. G. Corbett v. Me^en^ 1 Cham. Rep., 26. Sek Attachment — Committing— Corpobation— Injunction —Specific Pebformance^Pbaotioe. CONTENTS. Of hat will — Proof of. See Lost Will. CONTRACT. Time, determination of Uncertainty, 2. Specific performance, 3. Fairness of, 4. Varying, 6. escindii Laches,!. Rescinding, 0. 1 — Time, Determination of — Ladies. Semble. That the peculiar practice which has grown up in re- lation to sales, may require a modification of English cases as to the doctrine of Laches. Semble, that when one party to a contract (in which time is not of the essence), desires to put an end to the con- tract in consequence of the laches of the other party thereto, the proper mode of doing so, is to give notice that unless completed with* in a period to be fixed, the contract will be considered at an end. O'Keefe v. Taylor, 2 Grant 95. 2 — Uncertainty. When a contract was for the sale of a lot of land, " and as much of lot seventeen as required to be flooded for the purpose of working a mill on lot sixteen," (the lot contracted for.) Held, that as the quantity of land on lot seventeen, was capable of being ascertained by the verdict of a jury, on an inquiry before the master ; there was not such an uncertainty in the terms of the contract, as to render it void. Hooke v, McQueen, 2 Grant, 490. 3 — Specific perfoiiifiance. In the course of correspondence, which the Oouri wai of opmion amounted together to a complete contract, for the sale of lands in question by the defendant to the plaintiff, the defendant wrote a letter to the plaintiff's agent containing the following pai- >age ; «>* I am strongly advised to retain them, but having other i k. K , -Ml w — tj,-- --t-"- 4 '■H ,','■,!",'•, 108 EQUITY DIGEST. ground on which to huild, and having somo objects in view which I think may be accomplished with the proceeds, I feel inclined to sell at £1000. That amount in hand would suit me much better than to have a small portion, say £250, on interest for so long a period. I dare say it would be quite the same thing for your friend to pay the whole at once. In order to raise a sum to pay for a property in Albion, which Archy has been improving, I gave, on his behalf, a mortgage to the university for £500, on the Niagara street lots, to be paid in five years. If your friend should decide on giving tbe whole, I have no doubt the university would take a security on the Albion property, the title of which is secured by the advance, and release the lots on Niagara street. The Albion property will more than pay up the mortgage within five years. Perhaps as matters stand, your friend would take other security to bear him harmless as to the £500, and so it might be unnecessary to trouble the uni. versity on the subject." In the subsequent correspondence nothing was said as to this mortgage on either side ; and it was held by all the judges that the contract was complete. It appeared from the other correspondence that the defendant's object in selling was the immediate use of the whole of the purchase money ; and the vice-chancellors held that he was not bound to pay off the mortgage referred to out of the purchase money, that he was bound to trans- fer it to the Albion property and any other property he had if the university would consent to the exchange, and if the university re- fused he was bound to indemnify the plaintiff against the mortgage. Arnold v. McLean, 4 Grant, 337. 4 — Varying. The owner of the west half of a lot of land, supposing himself to be the owner of the east half, and not the west half, entered into a contract with the owner of other land to cxohanG;e for these the east half, and the east half was conveyed accordingly. He filed a bill to compel the other party to the agreement to accept a conveyance of the west half and specifically perform the contract entered into be- tween them by conveying the lands agreed to be given for tbe east half alleging mistake in the insertion of " east" instead of " west," and it appeared that the two halves were of about equal value, and that the defendant had no personal knowledge of either ; but as the contract was for the east half, and the mistake was that of the plain* tiff alone, the Oonrt held that the west half could not be substituted for the east half, and refused the relief asked. CoUingham v. Bouh ton, 6 Grant, 186. 5 — fairness A contract to certain in its t therefore, a won in two acres of thereof, and an in produce, chai two acres to the paying her the : reftised to enfoi hji V. McOill, 1 6 — Beacindin Where a part tract filed a bill covering what \ vendee had con contract. Helc clearly establish and that the sai in cases where t Grown, as whei E. & A. R., 11' Ski Spboifi ( See Oorpoi Sbk Abbiti Setting taide, 1. Impewhed after Mi Fraudulent Convey Setttiiga>lde,4,6. iSettvng a A person re Canada, but ^ I near I presenting in that the lands EQUITY DIGEST. 109 5 — Fairness of. A contract to be specifically performed must be equal, fair and certain in its terms, and founded on good consideration. Where, therefore, a woman, under the impression that she held a life interest in two acres of land, where, in reality, she was entitled to the fee thereof, and an annual allowance of £10, partly in cash and partly in produce, charged upon other lands, agreed to sell her interest in two acres to the owner of the other lands, in consideration of his such paying her the £10 all in cash. The Court, under the circumstances, refused to enforce the specific performance of the agreement. Ear- Uy V. McGill, 11 Grant, 75. 6 — Rescinding — As to unpatented lands. Where a party complaining of fraud in the the czeeutionof a con- tract filed a bill to have it rescinded, and it appeared that after dis- covering what was alledged as fraud on the part of the vendor the vendee had continued to deal with the property, the subject of the contract. Held, that on that account if even the fraud had been clearly established the vendee was not entitled to the relief prayed, and that the same rule must prevail in granting or refusing relief in cases where the title to the lands in question is vested in the Grown, as where the lands have been granted. Bown v. We»t, 1 E. & A. B., 117. Sbk Spkoifio Pjcufobmanoe. CONTRACT NOT UNDER SEAL. SSE COKFOBATION. CONTRACT TO RE-BUILD. Sbk Arbitration — Lease. CONVEYANCE. Setting aside, 1. Impeached after fifty yeara, 2. Fraudulent Conveyance, 8. Setting aside, 4, 6. Sublect to payrnent of debts, 6. I dc: To defraud creditors, 7. Vesting order to o By an Insolvent, 9, Vesting order to operate as, 8. 1 — Setting aside. A person resident in England, having the title to certain lands in Canada, but who had never been in the province, was, by a person resident near the land, urged to make him a lease of those lands, re- presenting in the course of his correspondence with the proprietor, that the lands were nnoeoupied, save by some squatters, who had built 110 EQUITY DIGEST. ^' some huts or hovels for the purpose of, and wore oommitting depre- dations upon the lands, by stripping them of the most valuable tim- ber of which they were nearly denuded ; that the lands were liable to forfeiture for non-payment of taxes, and that the title of the persons so trespassing would shortly become absolute, by lapse of time. In consequence of these representations, the owner was induced to execute a lease of the lands for twenty-one years, which he transmitted to the lessee in Canada, who, on receipt of the instrument, went to the per- sons in possession, and induced them to execute to him deeds of quit claim of their interest respectively, taking from him a bond to re- covery in case it should appear afterwards, that he was not entitled to the possession. It was shewn that the persons in po lession were not of the character represented, but in reality substantial farmers with valuable clearness and buildings. Upon a discovery of the mis- representations made by the lessee, the lessor and the occupants who had executed quit claims, filed a bill to set aside the transactions, and the Court held them, entitled to the relief prayed for, and that they were not improperly joined as plaintiffs. Baby v. Cavanah, 5 Grant, 378. 2 — Impeached after Jifty years — Relief refused. A person against whom an action of ejectment was brought, filed a bill to restrain the action, alleging as a ground that the deed under which the plaintiff in the ejectment claimed, was a forgery. The deed was dated about fifty years before the bill was filed, and all iht persons who had witnessed the deed, four in number, worfr ■^' . ■■^, b.; fore the validity of the deed was impeached in any way. j > > .nn under the circumstances refused the relief prayed, and dka^^^6( he bill with costs. Fick v. McMichael, 5 Grant, 646. 3 — Fraudulent Conveyance. Where a debtor executes a fraudulent conveyance in respect of which relief in equity may have to be sought, the proper course for the creditor, is not to have the property sold by the sheriff at a great under value, and then to come into equity to have the sale confirmed, but to come into equity in the first instance, to have the fraudulent conveyance set aside, and the property then sold. Kerr v. Bain, 11 Grant, 423. 4 — Setting aside. (1) The mere fact of a person executing a conveyance, while in a state of intoxication will not as a general rule warrant this Court in interfenng to set such deed aside, unless there be evidence of some un- due advantage ti years of age, wh an habitual dm for the benefit o —and who, it v whatever diink and afterwards ( after the deceas aside the conve] deed had been i irm, 4 Grant, 2 (2) The pU one of the defet failed to prove t an extremely pe of suspicion, the points in disput 5 — Setting at aentation. L, as a daugl but left Canada she had resided la&d and impro' to L in Michij bond. This a{ position, and vs oipal in regard her interest in \ filed to set asidi fraud and misn the agent were i fides of the com be cancelled, j Q— Subject to Conveyances portions of his < security, and a sons. They bo debts was paid EQUITT DIGEST. Ill dae advantage taken of the party. However, where a person sixty-two years of age, who has become so addicted to drink as to be termed an habitual drunkard, executed a deed of certain real estate^ in trust for the benefit of the keeper of the tavern, with whom he was residing —and who, it was proved, was in the habit of supplying him with whatever diink he desired — for a greatly inadequate consideration, and afterwards devised the same property to his brother. The Court after the decease of the testator, at the instance of the devisee, set aside the conveyance, and ordered the party for whose benefit the deed had been made to pay the costs of the suit. Clarhson v. Kit' ion, 4 Grant, 244. (2) The plaintiff filed a bill praying that a deed he had given one of the defendants should be set aside for fraud, and though he failed to prove the fraud as alleged, yet as the case appeared to be an extremely peculiar jone, and surrounded with many circumstances of suspicion, the Court directed issues for the trial at law of the points in dispute. Taylor v. Shoff, 4 Grant, 261. „ 5 — Setting aside ivhen obtained by fraudulent misrepre' aentation. L, as a daughter of a U. E. loyalist, had been granted a lot of land, but left Canada for the United States of America in 1825, where she had resided ever since. Various persons took possession of the land and improved it so that it was worth £2,500. C sent his agent to L in Michigan to treat for the purchase of her interest in the bond. This agent made numerous false representations as to the position, and value of the land, and as to the intentions of his prin> oipal in regard to the purchase, and thereby induced L to convey her interest in the land to C for an inconsiderable sum. On a bill filed to set aside this conveyance as having been obtained through fraud and misrepresentation, htld^ that the representations made by the agent were material, and to be considered in weighing the harty, IS, 21. DtamisRed Dili flied under a misapprehension created by defendant, 15. Executors, 24, 25. Fi fa, isHuing, 23. Foreign conunlssion, of, 0. Injunction, on motion for, 11. Interlocutory, 20, 30. Liability of sheriff, 27. Law and Equity, proceedings at, 28. Mistake, 19. Mortg^.ige, 2. I'artner«hip, 1. Payment of, out of fund in Court, 20. JPractice, as to, 36. Redemption bill, 14. Keferee, before, 34. Relief without costs, 10. Reserved, when not, 8. . . Set off 26, 2i). Specific performance, 6, 6, 12. • Taxed, when once, 22. Trustees, 3, 4. Where given against plaintiff, although relief granted, 81. Where refused to a mortgagee, 32. Where given to a respondent on appeal from master, 33. Where proceeds of a sale InsufRcient to pay prior incumbrences, 36. >4l J-'i ^ :i/ l!. 116 EQUITY DIGEST. 1. — Partnership. Where one of two partners denied the existence of a partnership, and a bill was in consequenoo flled against him, and by the evidence taken in the cause the partnership was established, the Court gave the plaintiff the costs up to the hearing, also the costs of a consent reference as to the fact of partnership, and beyond that refused the costs to either party. O'Lone v. 0'L'>ne, 2 Grant, 125. 2 — Mortgagee. Where a Mortgagee files a bill to foreclose, and a question arises at the hearing whether he has not received sufficient to pay off the incumbrance before the commencement of the suit, the costs will be reserved. Gooderham v. De GrasMi, 2 Grant, 1 35. S—^Triistecfi. Where trustees filed a bill for the purpose of having the trusts of the deed appointing them carried into execution without a-uggcsting the existence ot any difficulty in the way of their winding up the affairs of the estate, the Court refused them their costs of the suit. Cummings v. Macfarlane, 2 Grant, 157. 4 Where a trustee set up ua improper claim to the property, the Bubjeot of the trust, and a bill was filed to compel him to deliver up poBsessioQ and account, the Court charged him with the costs up to the hearing, reserving the consideration of interest and subsequent costs. FUhcr V. Wilton, 2 Grant, 260. 5 — Specific Performance. The steps which the vendee of an estate who desires the specific performance of the contract of sale should take before filing a bill for that purpose, in order to entitle him to the costs of the suit con- sidered, Hutchinson v. Rapelje, 2 Grant, 533. 6 WLere before the expiration of the time appointed by a con- tract for the payment of the purchase money of a lot of land, the vendee became dissatisfied with the title of his vendor as it appeared on the books of the registry office of the county, and without any oommnnication with the vendor, filed a bill to rescind the contract, or to have it specifically performed if it should appear that the vendor could make a good title, and pt tne hearing the plaintiff (the vendee) expressed his willingness tr> accept the title. The Court, with the oonfieat of the defendant,«offered the plaintiff a decree for specific performance that the bill 542. 7 — yU<))H>) In suits ft as a general 113. Where a ( to the hearin after the ans he rnentione lishing the 1 was propo9C( decided bot granted a d alleged wou to be about not entitle t the account. ()—OfFor The costs form part ol 169. \{)—Relie The plai the ground his bill he suppressed titled to re decree in I 588r 11—0)1 Where not to giv tiff must ] the bearii mour, 7 ( EQUITY DIGEST. 117 performance on payment of costa, or, if thai was refused, ordered that the bill bo dismissed with costs. Currah v. Rapelje, 2 Grant, 542. 7 — Alhn<»)y. In suits for alimony, the plaintiff, when she succeeds, is entitled, as a general rule, to her full costs of suit, Soulet v. SouUs, 3 Grant, 113. S — }\hc)i not rcscrral. Where a defendant would have been entitled to oosts of suit up to the hearing, but for an offer which the plaintiff made by letter after the answer was filed, to accept a sum he named, and to which he mentioned ho thought he would be entitled if he failed in estal)- lishing the larger claim he made by his bill, and by which offer it was proposed that each party should pay his own costs, but the Court decided both against the larger claim and the view referred to, but granted a decree ior an account on a different footing, which it was alleged would result in uhcwin^ tlie amounts mentioned in the letter to be about the true amount. Held, that these circumstances did not entitle the plaintiff to have costs reserved until the taking of the account. Covert v. The Bank of Upper Canada, 3 Grant, 246. 9 — Of Foreign, Commission. The costs of a commission to take evidence in a foreign country form part of the costs of the cause. Colborne v. Thomas, 4 Grant, 169. * 10 — Relief (jiven hut ivithout costs in some cases. The plaintiff filed his bill founding his right to relief inter alia on the grounds of fraud, which he entirely failed to establish, and in his bill he had made statements which ho knew to be untrue, and suppressed the truth in other matters, the Court considering him en- titled to relief on other grounds which he had sustained, made a decree in his favour, but without costs. Hu^hson v. Davit, 4 Grant, 588. 11 — 0)1 Motion for Injunction. Where a motion for an injunction is refused, the proper course is not to give the costs of the application, as if the suit fails the plain- tiff must pay the costs, and if it succeeds the order pronounced at the hearing provides for the payment of them, Carruthers v. Ar- mour, 7 Grant, 34. V ■;-'■■■ "';^ r:: 118 EQUITY DIGEST. 12 — Of Specific performance, bill dismissed. Where a bill by a purchaser seeking specific performaBCC of a Ovn- traot for the sale of lands is dismissed, because a good title cannot be shewn, the Court will order a sum paid on account of the purchase money to be returned to the purchaser, and in default give him a lien therefor on the estate agreed to be sold, but in such case unless the vendor has been guilty of fraud in the transaction, the bill will be dismissed without costs. Hard v. Bobertson, 7 Grant, 142. 13 — Costs of defence to a demurrable bill. Where defendants had set up in their answer several grounds of defence on which much evidence was gone into, and the Court with- out going into these defences, dismissed the plaintiff's bill on a ground HQt argued at the bar, and which might have been taken by demurrer to the bill, it was held, (Esten Y. C, dissentiente) that the defen- dants were notwithstanding, upon the authorities entitled to the whole costs of their defence. 5 Simpson v. Grant, 267. 14 — Of Redemption Bill. In answer to a bill for the redemption of a mortgage, alleging the existence of usury in the original transaction, the mortgagee set up several defences which were decided against him, the Court in de- creeing redemption, ordered the plaintiff to pay such costs as would have been incurred in a common redemption suit, and the defendant to pay the costs of the issues found against him. hherwood v, Dix- on, 5 Grant, 314. 15 — Given against a party refusing to account, although the balance' in his favor. A party in possession of land under an agreement in the nature of a Welch mortgage, having refused to give any statements of ren ts received, or information as to the amount due, a bill was filed by the mortgagor for an account. Notwithstanding that on taking the ac- count between the parties a balance was found to be still due to the defendant, the Court ordered him to pay the costs of the suit. Mcr- iiton V Nivins, 5 Grant, 577. 16—0/ a dismissed bill filed under a niisapprelta^ision created by defendant. Where a party's own letter was such as to create a misapprehension of facts, and a suit was instituted in consequence, the Court, although it refused the relief asked, dismissed the bill without costs. Ander- ion V. Cameron, 6 Grant, 285. 17 — Jynen and ove) A demun ruled as to 1 costs. Pah 18— 0/aj Where a J and disdain ive the sax Parhf 6 Grj 19 — Crow\ Where th as a glebe a and upon w not returnee issued in en costs. Attc 20 — Interi Plaintiff ; suit to have order of thi ment, and d these notes and exeouti perty of the obtained ai plaintiff, bu ecution plai succeeded ii On moti( in Court, obtained t( fund in Coi applicant i costs which the costs at party, costs and might time for pe EQUITY DIGEST. 119 17 — '^iierea demurrer had been allowed on one fjround and overruled as to another. A demurrer having been held good on one ground, though over- ruled as to the other, the defendant was allowed to answer without costs. Paine v. Chapman, 6 Grant, 338. 18 — Of a party disclaiming. Where a person made a party to a suit in the inaster's office, appears and disclaims, he is not entitled to any eosts, as by remaining inact- ive the same end will be attained as by the disclaiming. Ilait v. Park, 6 Grant, 553. 19 — Crown patent — Mistake. Where the provincial government had appropriated and patented as a glebe a lot which had been previously occupied and improved, and upon which the patent fee had been paid by the occupier, and not returned by the government, the patent was set aside as having issued in error and mistake, but under the circumstances without costs. Attorney General v. Hill, 8 Grant, 532. 20 — Interpleader Costs — Payment of out of Funds in Court. Plaintiff snd defendants being joint owners of a vessel, instituted a suit to have the partnership '.^i jainated. The vessel was sold under order of this Court, and promissory notes were taken in part pay- ment, and deposited with the registrar of the Court, subsequently these notes being unpaid, were sued on in the name of the registrar, and execution obtained under which the vessel was seized as the pro- perty of the makers ; being claimed by certain persons, the sheriff obtained an interpleader order between them and the execution plaintiff, but without the leave of the Court being asked by the ex- ecution plaintiff therefor, or to the litigation at law, and the claimant succeeded in the interpleader issue. On motion to have the costs of the issue payed out of the moneys in Court. Held, that the sanction of the Court should have been obtained to the contest at law if the parties meant to look to the fund in Court for their costs, and that not having been obtained, applicant must make out a special case to get out of the funds those costs which were incurred at his own risk. Under the circumstances, the costs at law were ordered to be paid, but only between party and party, costs of the motion refused, as the parties acted irregularly, and might have avoided it by application to the Court at the proper time for permission to litigate, and that the solicitor should not ; :% '■ I I w- 120 EQUITY DIGEST. ' • s> J-.'- ■ ''■' "^M' i charge his client with any costs therein, as the motion was rendered necessary by his fault or oversight, costs incurred against defendant at law subsequent to judgment in interpleader suit were ordered to be paid by him or his solicitor. MacDonald v. Carrodi, 1 Cham, Rep., 145. 21 — Costs of disclaiming defendant. A, an execution creditor of B, was made a defendant to a suit as claiming an interest in certain chattels, which the plaintiff claimed as prior mortgagee. A filed an answer, and disclaimer ; but it ap- peared that his solicitor had given instructions to the sheriff to seize the interest of the debtor therein, if any. Held, that before answer- ing the bill, he should have notified the plaintiff that he made no claim to the chattels, and that not having done so, he was not entitled to the costs of the suit. Lymhumer v. Clarhe, 12 Grant, 130. 21 — Costs against defendants when guilty of great laches. Where defendant set up a defence to a bill, which if tenable would have formed sufficient grounds for their having taken steps to set aside the transaction which it was now sought to enforce, but had not done so, although twelve years had elapsed since the act was done which they questioned, and which it was shewn they had all the while been aware of, the Court under the circumstances ordered them to pay the costs of the suit. Miller v. Ostrander, 12 Grant, 349. 22 — Where bill once taxed. The defendant is not entitled to the delivery of any bill he is not entitled to have taxed, and where a bill has been taxed it will not be again referred even with other or subsequent costs, except on proof of special circumstances. An application to tax costs should be on petition and not by motion. Bell v. Wright, 2 Cham. Rep., 9G. 23. — Issuing fl fa. It is irregular to take out afifa the instant costs have been tax- ed without allowing a reasonable time to the solicitor, whose client has to pay them, to communicate the result of the taxation. A re- taining fee of £5 is not taxable. CuUen v. Cullen, 2 Cham. Rep., 94. 24 — Executors' Costs. In order to enable the Court the better to deal with the question of costs on further directions, the masters to whom references are made, should in their reports distinguish between sums received and sums which but for wilful neglect and default might have been re- ceived by the parties chargable therewith. 25 Where and improper were by the m having manag( in redity bein mary applicati diiections ord< their cos.m COURT. Jurisdiction of. The remedies pointed out by statute for the purpose of settling the Qlaims of landowners to compensation for lands taken by a rail- way company becoming, ineffectual, the Court in such a case will direct a reference to the master for that purpose, Malloch v. The Grand Trunk Railway, 6 Grant, 348. See Acts— Appeal- County Court— Court of Chancery JURISnOTION. COURT OF CHANCERY. See Taylor's Ch. Orders, seal of, 1 ; judges of, 1 ; appointment of, 1 ; tenure of office, 2; salaries, 2 ; retiring annuities of, 3 ; oath of, 4 ; registrar, master, accountant and scargeant-at-arms of, 4 ; registrar and master's clerks, 4 , not allowed fees, 4 ; to render quarterly ac- counts, 5 ; local masters, deputy registrar, commissioners and usher of, 5 ; their duties, 6 ; master and registrar paid salaries, 6 ; local master's, &c., receive fees, 7 ; governor may appoint clerks, 7 ; oath of officers, 8 ; who to administer, 8 ; sheriffs, gaolers, &c., officers of court, 8 j surrc^ate clerk, officer of court, 259 ; to sit at Toronto, 8 ; judges to sit together, 8 ; may sit separately, 9 ; all cases heard before single judge, in first instance, 9 ; order of hearing, 9, 213 ; to take circuits, 9; division into, 10; venue in, 10; hearing on, 10; trans- mission of pleadings to, 10, 220; witnesses examined viva voce, 10 ; interrogatories when allowed, 10, 11 ; rules of decision, 11 ; jurisdiction of court, 11; injunctions, 12, 68, 83, 102, 132, 311 ; wills, 12, 258, 266; alimony, 12, 54, 260~sce alimony ; lunacy, 13~scc lunatic ; parti- tion, 19-see partition ; infants, 46, 73, 76, 122, 171, 269-sce infants ; dower, provision respecting, 22 ; mortgages special provision, 23 ; dor- mant equities, 24, 25 ; appeals from County Courts, 25, 26, 27, 257, 319 — see County Courts ; Commissioner of Crown Lands, 27; vesting orders, effect of, 28 ; lis pendens, effect of, where necessary, 29 ; de- crees, registration of, ?9 ; trial of issues, 15, 29, 30, 31, 102 ; fore- closure suits, service in, 31 ; absent defendant, service on, 32, 222 ; money in, how deposited and paid, 32 ; fees in, 33, 65, 89, 177, 180, 199, 201, 220 ; general orders continued, 33 ; court may make, &o., 33; gaols prisons of, 34 ; jurisdiction over trustees of religious bodies, 268. See Acts— Appeal. See Taylo matters appe 240, disconti of, how entei form of, 31S note, 251. 21 abatement in 252 ; when, : heard, 244, See Acts See Com COl See Ven A debtor, to two of his preference a creditor issu ment as voic circumstanci or intended and that on general relei set aside an( estate accoi 255. See Pr^ EQUITY DIGEST. COURT OF ERROR AND APPEAL. 127 See Taylor's Cb. Orders, jurisdiction, 239 ; sittings of, 255 ; what matters appealable, 239 ; power to quash proceedings, 249 ; to dismiss, 240 , discontinuance in, 240 ; consent to reversal in, 240 ; judgment of, how entered, 240, 257 ; security to be given, 241, 247, 248, 249 ; form of, 318 ; execution, when stayed, 241 ; exceptions, 241, 242 ; note, 251. 252, 253 ; how stayed, 242 ; when money made, 242 ; no abatement in, on death, 242 ; marriage, 243 ; petition to be filed, 243, 252 ; when, 243 ; form of, 243, 244 ; not to be answered, 243 ; when heard, 244, 255; when decree absolute, 244; orders of, 246. See Acts — Appeal. COVENANT. See Compensation — Deed — Mortoaqe. COVENANT FOR FURTHER INSURANCE. See Vendors and Purohasers. CREDITOR AND DEBTOR. A debtor, who had executed a chattel mortgage and ^ven security to two of his creditors, executed an assignment giving hb sureties a preference and providing for a general release just before T^nother creditor issued his execution. On a bill filed to set aside the assign- ment as void against the execution creditor, it was held^ that from the circumstances surrounding the execution of the assignment, the debt, or intended to execute an irrevocable deed in favor of his sureties, and that on that ground the deed was not void ; but as it contained a general release, which would deter creditors from executing it, it was set aside and the creditors declared entitled to the proceeds of the estate according to priority. McDonald v. Putman, 5 U. C. L. J., 255. CREDITOR'S BILL. See Practice. i2d fiQUITY DIGEST* CREDITOR'S SUIT. if""^ Credlton all repreaented by one o( them, Putie*. 1. Heir »» law— Parties, 2. Beoeirer, 8. Decree wjthout general adminlsration, 4. Redeeming wife, 6. Right of wife under lettlement, 5. Conveyance of outotanding legal estate decreed to purchuer, 0. '■: 2 — Creditors all represented by one of tJiem — Parties. A large body of creditors may be represented by one or more of the number, but in any such proceeding the bill must disclose a suf- ficient reason for this departure from the rule of practice requiring all persons interested to be parties to the suit. Where therefore a bill by one of the several creditors entitled under a deed of trust, was filed, and stated " that the creditors of the said L entitled to the bene- fit of the said indenture are too numerous to make it practicable to prosecute this suit if they were all made parties." Held, that such statement was too general to satisfy the Court that the rule could not be complied with. Qucere. — Whether necessary to furnish proof of the all^tion, that parties are too numerous to be brought before the Court ; and whether, in a creditor's suit, any decree can be made without previous proof of his debt ? Miehie v. Charles, 1 Grant, 125. 2 — Heir at laiv — Parties. In a creditor's bill against two devisees of a debtor, it is not indis- pensable that the heir at law should be a party. Fenny v. Priest- man, 1 Grant, 133. 3 — Receiver. Upon a creditor's bill, a receiver of the rents and profits of the testator's real estate will not be granted where the plaintiff does not all^ in his bUl, and clearly prove the insufficiency of the bill to pay the debts, and does not pray by the bill for the application of the realty or the rents and profits thereof, Sawiders v. Christie, 1 Grant, 137. 4 — Decree loitJiout general administration. Where in a creditor's suit to administer the estate of a deceased debtor to whose estate administration ad litem had been taken, the bill alleged that there was no personal assets, and the parties interest- ed in the real estate had suffered the bill to be taken against them pro confesso, and did not appear at the hearing, the Court made the usual decree, without requiring a general administration to be first obtained. Dey v, Dey, 2 Grant, 149. 5— iJecfoemi under set An executi debtor and ce on his marriaj to the use of exercised witl R, who had a stances, it wai that the wife'i thatofR;th or pay a prop< a provision ou property on B as to other ju ceeds. Peml 6 — Conveya ciiasers. A sale of re in a creditor's the debtor's v< chase money t motion of the on payment o^ under the dec SiB Part Of one defa On a motl examination ( ible in reply i the defendani cross examini tion on the n Sbs PaAO EQUITY DIGEST. 129 5 — Redeeming mortgage of luife'a trustee — Right of wife under settlement. An execution creditor filed a bill against his debtor, the wife of the debtor and certain other persons ; and it appeared that the debtor, on his marriage, settled certain land (the subject of the suit) in trust to the use of the wife for life, with power of sale to the trustee, to be exercised with the husband's consent. The legal estate was in one, R, who had a primary charge on the premises. Under these circum- stances, it was decreed that the plaintiff was entitled to redeem R; that the wife's estate was exempt from every other charge other than that of R ; that of this charge she must either keep down the interest, or pay a proportionate share of the principal ; that she was entitled to a provision out of the life estate ; that, subject to her interest, the property on R being paid, should be sold, and an enquiry directed as to other judgments, in order to a proper application of the pro- ceeds. Pemberton v. O'Neil, 2 Grant, 263. 6 — Conveyance of outstanding legal estate decreed topur- civasers. A sale of real estate had taken place in pursuance of a decree made in a creditor's suit. It appeared that the legal estate remained in the debtor's vendors, to whom there was still owing a part of the ^pur- chase money agreed to be paid by their vendee. The Court, upon motion of the parties beneficially interested, ordered the vendors up- on payment of the amount due to them, to convey to the purchaser under the decree. Heal v. Harper, 2 Grant, 695. Sib Parties. CROSS EXAMINATION. Of one defendant when inadmissible. On a motion for an injunction against one defendant, the cross examination of another defendant on his answer, was held inadmiss- ible in reply to the affidavits filed in answer to the motion, where the defendant against whom the plaintiff moved had no notice of the cross examination, or of the plaintiff's intention to read the depoii- tion on the motion. Curtia v. Dale, 12 Grant, 244. SiK PaAOTIQS. .fi., ^ r. : :kiii imi I 130 Juriidiotlon, 1. Bpeelflc penomunce, S. Rcvoklnf approprUtion, 3. Cltlm to free granta, 6. 4. EQUITY DIGEST. CROWN. Dtmunrar, fi. FoNolMure •gainst, B. S'eiidM of, 7. 1 — Junsdidion. This Court has no jurisdiotion to set aside a grant made by the crown upon a deliberate view of all the circumstances of a case, and in the abiTence of fraud or mistake. Simpaon v. Grant, 5 Qrant, 2G7. 2 — Specific Performance. This Coiut cannot enforce against the crown specific performance of an order in council, lb. 3 — Revoking appropriation. An order in council was made after the passing of the statute 7 Wm. rV., c. 118, and before 4 and 5 Vic, c. 100, appropriating land to certain religious purposes, thhl, that under the 27th section of the latter statute, the governor in council had power to revoke such appropriation, lb. 4 — Claim to free grants. The 3rd section of the latter statute, giving authority to the gov- ernor in council to adjudge upon claims to free grants of land under any order in council then in force, applies to located lands on which improvements have been made made as well as other lands, lb. 5 — Demurrer. A bill was filed against the attorney general, and A the superin- tendant of certain slides belonging to the crown, who was also the collector of the rates thereat, alleging that he had seised certain saw- logs of the plaintiff, and was about to sell them on the false pretence that the tolls thereon had not been paid. The bill prayed for an in- junction to restrain the sale. A demurred to the bill on the ground that being the agent of the crown, he was exempt from personal liability. The demurrer was overruled with costs. Baker v. Ran- ney, 12 Qrant, 228. 6— Foreclosure against. Where the crown holds the equity of redemption of mortgaged premises, no absolute order of foreclosure, can be pronounced, but only that in default of payment, the mortgagee be at liberty to enter into possewion. Dunn v. The Attorney General, 10 Grant, 482. 7 — Vendet Where a another wh( ed tobeoom the claims o Held, fol Rep., p. 11 decision of See Or< Grant pr( Recognisa Cje M g and MoK. istered nnd same time, as security power of 81 Jpon an in That the r< knowledge!! D being on of the lien Crown, not registratioi C. L. J., 1 See 6b Right ol prc-e Fraud in cor ment.l. Pre-emption, I— Right officers Patents ed by frav are void. EQUITY DIGEST. 131 7 — Vendee of the. Where a party haying a possenory right aasigned the name to another who applied to and was by the crown lands department allow* ed to become the purchaser of the land afler deliberately considering the claims of both parties. Held, following the case of Boulton v. Jeffrey, (1 U. C, Appeal Bep., p. 111.) That this Court had no jurisdiction to review such decision of the department. Barnes v. Boomer, 10 Orant, 532: See Crown Debt — Crown Landi — Crown Patent — Grant prom the Crown — Patent—Specific Performance. CROWN DEBT. Recognizance — Lien on Real Estate — Registration — Notice Cae M gave a recognizance to the Crown, with two sureties, D and MoK. The recognizance was entreated, but had not been reg- istered under the Crown Debts Act. N, the recognizor, about the same time, gave to D, one of his sureties, a mortgage on his lands as security. M absconded, and died abroad ; and then D, under a power of sale, sought to enforce the mortgage against the lands. Jpon an information filed by the Attorney General, it was held, 1st That the recognizance to the Crown bound M'n lands from its ac- knowledgement, and that the Crown could enforce its lien. 2nd, that D being one of the sureties in the recognizance, had actual notice of the lien of the Crown, and that he must be postponed to the Crown, notwithstanding the registration of his mortgage and the non- registration of the recognizance. Attorney-General v. Daniel, 7 IJ, C. L. J., 122. CROWN, GRANT FROM THE. See Grant from the Crown — Patent. CLOWN LANDS. Right ot pre-emption, 1. Fraud in concealing (acts from Govern- ment.!. Pre-emption, 2. Mortgage by Vendee of, 8. Jurisdiction of agwt iMforo patent, 4. Mistake, 6. TArw*^"" 1 — Right of ■pre-emption — Fraitd in concealing facta from officers of governraent. Patents issued to a purchaser upon a right of pre-emption obtain* ed by fraudulent concealment of other existing claims to such right are void. T%e Attorney General v> MeNulty, 8 Grant, 324. ) :' iK-r 1^2 EQUITY DIGEST. 2 — Pre-emption. If a party knowing that another person claims to have an advene right to pre-emption of crown lands, or that there are circumstanees which may give the other such right, applies to the government to ob- tain these lands, and does not state the circumstances giving rise to saoh adverse claim in his petition, or otherwise to the officers of the government, such suppression of the facts, will, in the eye of a Court of equity be considered fraudulent, even if the circumstances were al- ready known to t}.3 |r;overnment, and if a patent be subsequently issued upon such application, it will be declared void. Jh. 3 — Mortgage by Vendee of Croivn. A vendee of the crown transfierred his interest by way of mort- gage to a person, who took bona fide ; afterwards the vendee made a second assignment for a nominal consideration of £200, but no money did in fact pass, the consideration mentioned being intended to cover the amount which the assignee would be obliged to pay to the government for the balance due on the contract with their vendee. On a bill filed by the mortgagee to set the second conveyance aside. Held that as against the plaintiff, the second deed was voluntary, and even if it had been registered under the statute r^ulating the sale of crown lands, it would not have prevailed against the prior in- aambrance of the plaintiff. Garside v. King, 2 Grant, 578. 4 — Jurisdiction ofc^fent before patent. This Court has jurisdiction in a proper case to give relief against a ' aiidulent assignment by a locatee of the crown before the issuing of letters patent, but a bill for the purpose must shew why it is necessary to come to this Court. Bull v. Frank, 12 Grant, 80. 5 — Mistake. Although the crown will bo permitted to shew mistake in law or fact, in respect of its grant, when it would not be open for an indi- vidual to do so, still the evidence must not be such as to make out a prima facie ease on]j. Attorney General v. Garbutt, 5 Grant, 181. Sbb Ckown— Crown Patent—Grant from the Crown — Patent— Trust— Rectories. Repedo!,l,3. jQaUke in ifisuin getting wide. *■ 1 — Repeal In laying by the persoi square, and ficeoftheCc nished to th( eeveral sales fronting on ed by the Ci " reserved," the impressi( ed part of th Held, on a \ mistake or i that under t Lands depai this reservat been made, patent shov to have beer public. Th Grant, 538. 2 — Mistdk A locatee in preparing the adjoinic Department crown, cffec purchasing government inspect the who, in his been made pence per < wards appl shillings ai who had f\ m EQUITY DIGEST. 133 CROWN PATENT. ReBcifiion of, 5. Notice, 6. Repeal of, 1, 3. Kistake in issuing, 2. getting Mide, 4. 1 — Repeal of. In laying off the town plot of Southampton, a reservation was made by the person employed to survey the land, of a block for a market square, and he marked the same on the plan returned by him to the of- fice of the Commissioner of Crown Lands, a copy of which was fur- nished to the local agent at Southampton, by which he was to sell ; and several sales were accordingly effected by him, some of them of lots fronting on the market square so reserved. On the plan finally adopt- ed by the Crown Lands office, the market reservation was marked " reserved," simply ; subsequently the executive government, under the impression that the block so reserved was at their disposal, grant- ed part of the same to the Church Society for the site of a church. Held, on a bill filed to set aside the patent on the ground of error, mistake or inadvertence on the part of the crown in issuing the same, that under the circumstances it must be presumed that had the Crown Lands department been aware of what had been done in reference to this reservation the grant to the Church Society would never have been made, and that therefore upon a bill properly framed the letters patent should be repealed, but for that purpose the suit ought to have been instituted by the Attorney-General on behalf of the public. The Municipality of Saugeen v. The Church Society, 6 Grant, 538. 2 — Mistake in issuing. A locatee of the waste lands of the crown, having settled thereon, in preparing a portion of his land for cultivation, cleared a portion of the adjoining land. According to the usage of the Crown Lands Department, any person, even without settling upon lands of the crown, effecting a clearing thereon, was always allowed the privilege of purchasing the lot so cleared at the price fixed upon by the agent of the government. Subsequei.l'.y the government employed a surveyor to inspect the lands in the neighborhood of the land so cleared upon, who, in his return, reported the property on which the clearing had been made as vacant and unimproved, and valued it at twelve and six pence per acre. The agent who had so inspected the lands after- wards applied for and obtained a patent for this lot, at the rate of eight shillings an acre, and almost immediately after sold it to u person who had fViU knowledge of the clearing which had been made. Up- 9r>":: 134 EQUITY DIGEST. n:-- on a bill filed by the person who nad made the improvements on the land, the Court under the circumstances ordered the patent to be re- voked, as having been issued in error and mistake, without costs. But, semble, that had the agent of the crown, whose conduct had created the difficulty, been joined as a party he would have been or- dered to pay costs. Proctor v. Grant, 9 Grant, 26. The Court, while affirming the general doctrine on which the de- cree was pronounced above, reversed the same on the ground of want of notice of the improper conduct of the grantee of the crown in obtaining the patent.— (Spragge V. C. dubitante.) S. C, 9 Grant, 224. 3 — Repeal of. Semhle. This Court may, in a proper case, set aside a patent is- sued upon the finding of the heir and devisee commission, McDiar- mid V. McBiarmid, 9 Grant, 144. It is the duty of parties dealing with the Crown Lands Depart- ment to be fair and candid in all communications and statements ; where, therefore a bill was filed to set aside a patent which had been issued to a purchaser of a clergy reserve lot on the grounJ that the same had been so issued in ignorance of the opposing claim of the plaintiff, upon the fraudulent misrepresentation of the patcnte<^ and the concealment of the facts by him from the Crown Lands Dapart- ment, the Court, although unable to afford the plaintiff the relief sought dismissed the bill without costs as against the defendant who had thus dealt with the department. Lawrence v, Pomeroy, 9 Graut, 474. 4 — Setting aside. The lessee of the crown conveyed his interest to other persons, the right to one portion after going through several hands, became ves- ted in one F, who died leaving a widow and several children ; the widow having married again joined with her husband in assigning the portion of the land bought by P to one C; who subsequently agreed to sell to S. On applying to a conveyancer to prepare the ne- cessary writings, he recommended that a transfer should be taken directly from the lessee of the crown to S, for the purpose of simpli- fying the title, which was accordingly done, and thereupon 3 applied to the Crown Lands Department to purchase, producing to the Department his transfer, a certificate, of a surveyor and an affidavit by himself that there was not any adverse oli&i, no mention being made of the previous transfers or the possession of the intermediate transferroes, or of the fact that the uncle of F heir at law had intimated to ^as allowed t in January, of F, seeking through the i ing for the gr the country b ifornia, and i Court under t all actual on i order that th deal with the the costs of t suit being ac( his poverty Scheck, 10 Q 5 — Rescisio In March, take, settled < Id June, foil know whethe had not been was informed purchaser th( possession uc ment against the lot. At his claim am being proved mitting to tl an injunctioi Stevens v. C SsK Cro S£G At,i: Ssfi Inj Semhle, oree oompeg EQUITY DIGEST. 135 18- intimated to S, that the heir did claim it, after the application, S was allowed to purchase, and a patent therefor was issued to him in January, 1853. In 1863 a bill was filed by the heir at law of F, seeking to eet aside, this patent as having been obtained through the fraudulent concealment of the facts by S, when apply- ing for the grant to himself. It appeared that the plaintiff had left the country before attaining his majority, and went to reside in Cal- ifornia, and immediately on his return instituted proceedings. The Court under the circumstances, althdugh acquitting the defendant of all actual on intentional fraud in the matter declared the patent void in order that the crown with a full knowledge of all the facts might deal with the case as should be deemed right and ordered S to pay the costs of the suit, the delay which occurred in commencing the suit being accounted for by tht. inability of the plaintiff ari sing from his poverty and his absence from the jurisdiction, Fricht v. Scheck, 10 Grant, 254, 5 — Rescision of— Error in the Crown. — Notice. In March, 1862,'S purchased land from the Crown^ and by mis- take, settled on the adjoining land, and made some improvements. In June, following, C applied to the Crown Lands Department to know whether the land so purchased by S was for sale, the patent had not been issued to S, and through an error in the department C was informed that the land was for sale, and immediately became a purchaser thereof, and received a patent. He did not however take possession until December, 1863, when he brought an action of eject ment against S, and engaged the defendant B to take the timber off the lot. At the hearing the plaintiff failed to prove notice to C of his claim and improvements, but the error on the part of the office beine; proved and the Attorney General being a defendant, and sub- mitting to tha direction of the Court, the patent to C was rescinded, an injunction granted, and C required to account for the timber out Stevens v. Cook, 10 Grant, 410. S£K Crown— Grant from the Crown— Patent. CRUELTY. See Atjmony. CUTTING TIMBER, See Injunction. . DAMAGES. Semble. That this Court in a proper case has jurisdiction to de- cree compensation fc** improvements, where the vendor is unable to n i:--^^ 1^3 ■ ■^ -■ •>1 It' * 4'. tv - x N I I 136 EQUITY DIGEST. complete tlie title to the purchaser; but the Court will not make luch a decree when specific performance of the contract can be eom< pelled. Davit v. Snyder, 1 Orant, 134. Liability of Sheriff for, (for an escape.) SiE Costs. Subject generally. Sn Mortgage— Replevin— Specific PsRroBMANCE. See Injunction. DAMPING RIVER. DAY OP PAYMENT, See Practice, 110. DAT TO SHEW CAUSE. See Infants. DEATH OF VENDOR. See Specific Performance. DIBENTURES. 1, The municipality of B being authorized by statute to make a loan to the extent of £40,000 to a Navigation Company in the de- bentures of the municipality, payable in twenty yean, issued deben- tures to that extent, of which debentures to the amount of £16,500 were deposited by the Navigation Company in the bank. The muni- cipality of B, with the consent of the Navigation Company, redeemed the debentures so deposited, and then instituted proceedings against the company, to compel payment or foreclose the interest of the coApany under their act of incorporation. The Court refused this relief, but granted a receiver of the tolls, &o., of the company which he was to apply in maintaining the works and payment of salaries of the servants of the company, and then in payment of the arrears of interest paid and payment of interest on outstanding debentures. BratUford v. The Grand River Navigation Company, 8 Grant, 246. 2. A person negociating the sale of a municipal debenture is not answerable that the municipality will pay the amount secured by the debenture. Where therefore a township municipality in pur- suanoe of the municipal corporation act of 1849, pauod a by*Uwlbr the purpose and Port Bur which were s\ road compan the absence oi of the road c fl«ie of one of Specialty oi A surety f esUte, on juc and took an tumself. Qa a simple coi Cham. Rep., Release of. The payee of the make indorser, exc i^nst the ii still proceed Manning, 1 MortgHwdebti XimpreMQtatli l—Mo^igi Where a fie amount, carried the havii^ rec( money, wh other deali carried to any previo that this V partiMM 1 EQUITY DIGEST. 13T the purpose of granting a loan of money to the Bayham, Richmond and Port Burwell Road Company, and issued debentures thereunder which were subsequently declared to be illegal, in consequence of the road company not having been properly constituted ; the Court, in the absence of any proof of fraud, refused to order one of the directors of the road cjmpany to refund the amount paid to him upon the sale of one of such debentures. Scetilly v. McCallum, 9 Grant, 434 DEBT. Spedalty or simple contract. A surety for an administrator, deceased, who was indebted to the estate, on judgment being recovered against him paid the amount and took an assignment of the administration bond to a trustee for himself. Query — whether the debt to the surety was a specialty or a simple contract debt? In Re Whittemore, Ross v. Mason, 2 Cham. Rep., 17. DEBTOR. Eelease of. The payee of a promissory note indorsed for the accommodation of the maker, having obtained judgment against the maker and indorser, executed a release to the maker, reserving all bis rights against the indorser. Held, that he was entitled to do so, and might •till proceed to enforce the judgment against the indorser, Bell v. Manning, 11 Qrant, 142. DEBTOR AND CREDITOR. lIortgq» debt and general account, 1. Miinpneentatlon, 2. Judgment creditor, 3. 1 — Mortgage debt and general account. Where a creditor held a security on lands of his debtor for a speci- fic amount, and afterwards in rendering his accounts to his debtor, carried the amount of such mortgage into the general account, and having received from the debtor, and on his account, several sum of money, which as the creditor alleged, were to be credited on certain other dealings between the parties ; but instead thereof, they were carried to the debtor's credit generally. Held, that notwithstanding any previous agreement that might have existed between the parties, that this was such an expression of the final determination cf the partiM M precluded any inference from (heir previous oondnot, and 138 EQUITY DIGEST. that therefore the receipts most be applied in the first instance, to the redaction of the sum secured by the mortgage security. Re Brovn, 2 Grant, 111, S. 0., 590. 2 — Mi^epresentation. Where a debtor in order to effect a compromise with his creditors, offered a mortgage on certain property, which property he represent- ed as belonging to another person, who desired to assist him, and the ew . , jcepted the offer, and took the mortgage; but afterwards diaaon d . .aat before it was executed, the debtor had obtained a conveyance to himself of the property. Held, that such conveyance wai;, Uiider the ci»"''im8tances, subject to the mortgaG;e. Fraser v. Sviherlam, 2 C^rant, 44,2. 3 — Judgment creditors — Six montim to redeem. In suits by judgment creditors for the sale of the debtor's property the debtor is entitled, like a mortgagor, to six months to redeem, before the sale takes place. The rule prescribed by the statute, 43 Qeoige III, chapter 1 is not applicable to the practice of this Court. White V. BeasJey, 2 Grant, 660. DEBTS. Attachment of. Con. Stat., U. C, 281. DECISIONS APPEALED FROM AND AFFIRMED, REVERSED OR RESTRICTED. Attorney General v. Grasott, 6 Grant, 200 and 8 Grant. 130.--De- cinon in appeal affirms decree. Baby v. Miller, 1 E. & A., 218.-— Reverses decree. Bank of Upper Canada v. Brough, 2 E. & A., 95.—- Reverses decree of Court below. Bank of Upper Canada v. Thomas, 2 E. &' A., 502.— Varies decree of Court below. Bank of Montreal V. Hopkins, 2 E. & A., 458.—Rever3e3 decree, reported 9 Grant, 495. Bamhart v. Greenshields, 5 Grant, 99. — Affirms decree. Bernard v. Walker, 2 E. & A., 121— Approves of Letarge v. De- Tuyl^ and affirms decree of Court below. Bettridge v. The Great Western Railway, 2 E. & A., 58.— Reverses Black V. Bll Grant, 403| Blackwood v.| 394. Boulton V. J< BouUon V. Gl^ Bowes V. Tori Bown V. WesI Brigbam v. S| Brown v. Smj Buffalo V. W| Carpenter v. Cotton V. Co Crawford v. Crooks V. T( Dcsjardins C B. & A., i Evans v. Ev; Freeman, Cr missed — f Ford V. Chai Gardiner v. Greaves v. I and varie Attorney headings, Harper v. I Harvey v. i Henrihan i below, ai Home Disi 247~R Kerr v. Ai Matthews Grant, Meneilly ' McDonell EQUITY DIGEST. 139 Black V. Black, 2 E. & A„ 41 9. —Reverses decision, reported d Grant, 403. Blackwood v. Paul. 4 Grant, 550. — Reverses decision, V Grant, 394. Bottlton V. Jeffreys, 1 £. & A., 111. — Reverses decree. Bonlton v. Gillespie, 8 Grant, 223. — Reverses decree. Bowes V. Toronto, 6 Grant, 1 . — Affirms, 4 Grant, 489, Bown V. West, IE. & A., 117. — Affirms. Brighara v. Smith, 3 E. & A., 46 — Affirms. BrowD v. Smart, 1 E. & A., 148 — Reverses. Buffalo v. Whitehead, 8 Grant, 157— Varies, 7 Grant, 351. Carpenter v. Commercial Bank, 2 E. & A., Ill — Varies decree. Cotton V. Corby, 8 Grant, 98 — Affirms decree. Crawford v. Meldrum, 3 E. & A., 101— 'Reverses decree. Crooks V. Torrance, 8 Grant, 220 — Affirms decree. Dcsjardins Canal Company v. Great Western Railway Company, 2 E. & A., 330— Reverses, 9 Grant, 503. Evans v. Evans, 2 E. & A., 156 — Reverses decree of Court below. Freeman, Craigie v. Proudfoot, in re, 2 E. & A., 109—> Appeal dis- missed — No appeal lying from an order merely directing taxation. Ford V. Chandler, 8 Grant, 85 — Reverses, 6 Grant, 607. Gardiner v. Jason, 2 E. & A., 9 — Affirms judgment of Court below. Greaves v. Henderson, 2 E. & A., — Affirms to some extent decree, and varies in other respects — See Trustee, Cestui que Trust, Attorney and Client, Constructive notice — under their respective headings, and below under the present heading. Harper v. Knowlson, 2 E. & A., 253 — Affirms decree Harvey V. Smith, 2 E. & A., 480 — Reverses decree. Henrihan v. Gallagher, 2 E. & A , 338— Affirms decree of Court below, and overrules Sampson v. Mc Arthur, 8 Grant, 72. Home District Mutual Insurance Company v. Thompson. 1 E. & A.« 247 — Reverses decree. Kerr v. Aadr^iW, 2 £. & A., 446 — Affirms decree. Matthews v. Holmes, 5 Grant, 1 and 108 — Reverses decree, 3 Grant, 379. Meneilly v. MoKenzic, 3 E. & A., 209 — Affirms decree. MoDonell y. MoPonell, 2 E. & A., 393-~ Affirms decree. I'-t ■■■ L mi a\ W 'i-W m > % 140 EQUITY DIGEST. < ST i'A ■i ?xm m MoQaeston v, Thompson, 2 E. & A., 167 — Reverses decree and approves of Jacqaes v. Wortbington, 7 Grant, 192. Mnnro v. Watson, 8 Grant, 60 — Reverses decree. Nichol V. McDonald, 8 Grant, 106— Affirms. Norwich v. Attorney General, 2 E. & A., 541— Keverses. Parke v. Riley, 3 E. & A., 215 — Affirms decree. Paul V. Blackwood, 4 Grant, 550— Reverses decree, Beid V. Whitehead, 2 E. & A., 580— Reverses decree, 10 Grant, 446. Sampson v. MoArthur, 8 Grant, 72 — Affirms decree. Smyth V. Simpson, 1 E. & A., 172 — Reverses decree. Stanton v. McEinlay, 1 E. & A., 265 — Reverses decree. Street v. Commercial Bank, 1 E. & A., 246 — Rendered obBolete by 13 and 14 Vic, c. 63, Con. Stat. U. C, 894. Topping V. Joseph, 1 E. & A., 292 — Reverses, 5 Grant. 636. Torrance v. Crooks, IE & A., 230 — Reverses. Walker v. Provincial Company, 8 Grant, 217— Affirms, 7 Grant, 137 War V. Matheson,— Reverses, 11 Grant, 383. SOME OP THE SUBJECTS OF THE ABOVE APPEALS Constructive notice. Henderson v. Greaves, 2 E. & A. 9, overrules, to a certain extent, the decision of the Court below, 6 Grant, 306, in holding that cer- tain purchasers under the circumstances there appearing should not be disturbed, although they had got in the legal estate with con- structive notice of the opposing claim — and also in other respects peculiar to the case. The doctrine of constructive notice very fully oonsidered, and commented on. Henderson v. Greaves, 2 E. & A., 9. Cum/Illative legacy. Baby v. Miller, 1 E. & A., 218, reverses a decision of V. C, Jameson, who held that the devise of a lot of land in a codicil to a will was substitutional for a bequest of a 'competent provision' con- tained in the will itself, the Court of appeal holding it to be cumula- tive. Baby v. Miller, 1 B. & A., 218. Equity Redemption — Sale of under execution. Bank of Upper Canada v. Brough, 2 E. & A., 95, reverses decree of Court below, by holding that the provision in the statute 12 Vio. fl. 73, s. 1 (c execution of I tion is againi| his lands. Injunctio7 Home Dis| oision of V. the Insuranol destroyed byl The Court o^ iey. Home Parol evide Holmes v. 5 Grant, 1. be admitted between the The langui ted on, and t evidence limi 5 Grant, 1. LeTargev. namely fraud of the securit of parol evid< land V. Stew cited above - eil, 5 Grant, Note. Tl seem to be, t denoe should seek to exoh such fraud, 1 fraud, Thi oiple was fin which case { the cases of V. Matthews plaintiff was ing an absol EQUITY DIGEST. 141 e. 73, s. 1 (oon. stat. U. C, o. 22) which authorizes the sale under ezeoution of an equity of redemption applies only where the ezecu< tion is against the mortgagor himself, and under an execution against his lands. Injunction — Insurance Corapany. Home District Insurance Company v. Thompson, overrules a de- cision of V. C. Jameson, who had granted an injunction restraining the Insurance Company from erecting a house in the place of one destroyed hy fire, varying, as it was alleged, from the house burnt. The Court of Appeal holding the remedy to he by action on the pol- icy. Home District Insurance Company v. Thompson, 1 E. & A., 247. Parol evidence. Holmes v. Matthews, 3 Grant, 379, overruled by Court of Appeal 5 Grant, 1. The circumstances under which parol evidence should be admitted to give to an absolute deed the operation of a mortgage between the parties, considered and discussed. The language of the judgment in LeTarge v. DeTuyle, commen- ted on, and the principle of the decision as to the reception of parol evidence limited and defined. S. C. Matthews %\ Holmes, in appeal 5 Grant, 1. LeTarge v. DeTuyle, approved of, under its peculiar circumstances, namely fraud on the plaintiff and the treating by the alleged mortgagee of the security as a mortgage; but the general principle of the receipt of parol evidence to prove mortgage or no mortgage, limited. How- land V. Stewart — Greenshields v. Barnhart — Holmes v. Matthews, cited above —the two latter cases affirmed on appeal to Privy Coun< eil, 5 Grant, appendix to Matthews v Holmes, I. Note. The conclusion to be gathered from all these cases would seem to be, that the plaintiff or party seeking to introduce parol evi- dence should establish a prima facie case of fraud against those who seek to exclude such evidence, and that such exclusion would aid such fraud, thereby making the statute support instead of prevent fraud, This was the case in LeTarge v De Tuyle in which the prin- ciple was first acknowledged, and the language of the Chancellor in which case probably led to the misapprehension, out of which arose the oases of Greenshields v. Barnhart, Stewart v. Howland, Holmes V. Matthews, in such case (Letarge v. DeTuyle) it was shewn that plaintiff was a foreigner and illiterate, and did not know he was sign- ing an absolute deed, that he treated it as a mortgage and made pay- \ • ; i I - V :4 m^u PK m tl'ilf' 142 EQUITY DIGEST. mentson account, which the alleged mortgagee received, and thereby also treated it as a mortgage. Parol evidence was there received not directly to establish that the intention of the parties to a deed was different from that expressed by the deed, but to show ciroumstanoes inconsistent with the deed beiag absolute, as it purported to bo on its fuce, and thut a fraud had been and was sought to be perpetra- ted on the plaintiff. See Bernard v. Walker, 2 E. & A., 121, and the langugo of C. J. Robinson, there, speaking of Letargc v. De- Tuyle, he says, "we have expressed our concurrence in the conclu- sion come to in that case, though in some late cases in which it was cited we thought the principle on which it was determined was do- sired to be pushed to a length which the decision in the case itself did not warrant. Principal and agent. Brown v. Smart, 1 E. and A., 148, overrules a decision of Vice Ohaneellor Jameson, who had held that where an agent who was authorized to sell for cash, sold and took bills, which he applied to his own use, the principal was bound, the Court of appeal holding that the principal was not bound to execute a conveyance until paid the purchase money in cash. Rectories. Attorney General v. Grasett, 6 Grant, 200, affirms decree of Court of Chancery declaring the endowment of rectories in the manner the then Govenor had endowed them was valid. Attorney General « Grasett, on appeal, 6 Grant, 200. Redemption. Simpson v. Smyth, overrules a decision of Mr. Vice Chancellor Jameson, who had held that under the 11th clause of the Chancery Act (1837) the Court had not power to refuse redemption, notwith- standing twenty years had elapsed since the mortgagor went out of possession. The Court of appeal held the contrary to be the true construction of the act, which judgment was affirmed by the Privy Council. Simpson v. Smyth, 1 E. and A., 10, and S, C, 172. (liupplemental answer. Where the supplemental answer to file which leave was asked, set up a defence of want of jurisdiction, the Court of appeal held it no objection to letting in such answer, overruling an order of V, C Janjeson to thp contrary, Torrance v. Crooks, 1 E, and A., 231, . Trusts— D Attorney below, repor not within t eral v. Graa And see THE Heads BD THROUOl PBAL IN Tl FULL. See Pjrac AppMl of Court Before time for ai Cairloire of, 3, 8, : Correcting clerlca Delay in taking o Delay in carrying Enrolling, 11. 1 — Setting The Court obtained upoi an affidavit si cree being pei Grant, 123. 'i—Must he It is essent it should be p 150. 2 — Enterin In January in pursuance same year, th but the decre made thereof, and enter nun alleged to ha\ 3 — Carriag • Where any EQUITY DIGEST. 143 Trusts— Dormant Equities. Attorney General v. Grasott, 8 Grant, 130, affirms decree of Court below, reported 6 Grant, 485, which decided that express trusts are not within the dormant equities act, 18 Vic. c, 124. Attorney Gen eral v. Grasett, on appeal, 8 Grant, 130. And see Appealed Questions and Subjects, paqe 57, and THE Heads coRtiESPONDiNa to the Subjects ^here mention- ed THROUGHOUT THE YoLUME WHERE THE DECISIONS ON AP- PEAL IN THE RESPECTIVE CASES WILL BE FOUND GIVEN IN PULL. DECLARATION OF RIGHT. See Practice 105, DECREE. Entering; nunc pro tunc, S. (2.) Money paid out of Court In nu8ta}:e, 14. Motion for, 10. MuBt be passed and cnterad, 2. Setting: aside, 1. Time to proceed on, 7. Undertalcing, 13. Appeal of Court of, 9. Before time for answenuK expired, 4. Cairlaire of, 3, 8, 12. Correcting: vlerlcal error la, 0. Delay in UklnB out, 12. Delay in carrying into maater'n oJBcc, 15. EnrolUntr, 11. 1 — Setting aside. The Court will not set aside a decree which has been regularly obtained upon precipe under the orders of this Court, except upon an affidavit shewing that the defendant will be damnified by the de- cree being permitted to stand against him. Mitchell v. Crooks, 2 Grant, 123. 2 — Must be passed and entered. It is essentially requisite to the perfect completion of a decree that it should be passed and entered. Drummond v. Anderson, 8 Grant, 150. 2 — Entering nunc 'pro tunc. In January 1841, an original decree of foreclosure bad been made, in pursuance thereof, the master made his report, and in May of the same year, the case was set down for hearing on further directions, but the decree then pronounced was not drawn^up, or any entry made thereof. A motion made to allow the plaintiff to draw up and enter nunc pro tunc the decree on further directions from minutes alleged to have been prepared by the registrar was refused, lb, 3 — Carnage of. • Where any unreasonable delay occurs on the part of the plaintiff in ip,. '■\i! I :& 144 EQUITY DIGEST. carrying on a creditor's suit, the Court will order the carriage of the decree to be given to another of the creditors upon his indemnifying the plaintiff against future costs, Patterson v. Scott, 4 Grant, 145. 4 — Before time for answering expired, A plaintiff is not entitled, as of course, to a decree beforo the time for answering the bill has expired ; some special ground must be shewn to induce the Court to grant it. Davidson v. McKillop, 4 Grant, 146. 5 — Special form of in foreclosure suit stated. y executed a mortgage on certain property to A, then sold part of the property to H, then mortgaged the residue with other property to P, who obtained an assignment from A, of his mortgage, and filed a bill of foreclosure against V. & H. The proper form of the decree in such case stated. Perkins v. Vanderlip, 1 1 Grant, 488, (J — Correcting clerical error in. An application to correct a clerical error in a decree or order, must as a general rule be made on notice. Radenhurst v. ReynoJdt 11 Grant, 521. 7 — The fourteen days given to proceed on a decree, count from the pronouncing, not the entering. Mowat, V. C. — On a motion to give the carriage of the decree to the defendant, on the ground that plaintiff had not proceeded within fourteen days, a question arose as to whether the fourteen days counted from the '• pronouncing" of the decree or the " entering," and Mr. Taylor's Book was referred to in support of the latter position, but Y.C. Mowat held that the time should be reckoned from the pronouncing of the decree. Ernes v. Ernes, 2 Cham. Rep., 21 ^■—Carriage of Application in Cb .uibers by defendant for carriage of decree, the plaintiff, who was entitled to it, not having gone on within the four- teen days, &c. Ernes v. Ernes, 2 Cham. Kep., 54<. 9— Decree of Court of Appeal. Semhle, A motion to make a decree of the Court of appeal, an order of Court of Chancery may be made in Chambers if it is sought to make the order it *he terms of the decree of Court above, but if further directions or new terms are necessary to carry out the decree in appeal, the motion should be to the Court. Weir v. Matheson, 2 Chasii Rep., 10. \0— Motion A plaintiff don such pr usual way, if leave. McL 11 — Enroll A sum of t instead of bei upon depositi he having sig plaintiff move peal, the defc atonceifplai hearing. Th on the applic: was retained ceed with the 12 — Carria By the pre decree to any order to that entitled was { 20'auued, anc obtained the master's offid was refused v 13 — Under W entered being payabl property to tl vendor was t the mortage cific perform! dedree, to pr overdue instt the further o as to the effe oftheunderl the money, I sonif. Wridi T I fiQUITt DIGEST. 145 10 — Motion for. A plaintiff after giving notice of motion for a decree, cannot aban- don such proceeding and set the cause down for hearing in the aiual way, if he desires to do so, he must apply to the Court for leave. McLaughlan v. Whitesides, 1 Cham. Rep., 56. 11 — Enrolling decree — Paying out money pending. A sum of money having been paid into Court by the defendant, instead of being paid to plaintiff aa directed by a decree of the Court upon depositing which, proceedings against the defendant were staid, he having signified his intention of appealing from this decree, the plaintiff moved to have this money paid out to him pending the ap- peal, the defendant upon the motion undertook to enroll the decree at once if plaintiff would consent, and to urge on the appeal tea hearing. The Court r^ifused the application, but without costs, and on the application of the defendant, the deposit on the re-hearing was retained in Court for tVro weeks to enable the defendant to pro- ceed with the appeal. Hill v. Rutherford, 1 Cham. Rep., 121. 12 — Carnage of--Delay in taking out. By the present practice of the Court, it is irregular to deliver a decree to any party not entitled to the carriage thereof, without an order to that effect, but where the plaintiff who was prima facie so entitled was guilty of great delay in proceeding under a decree pro- zouub-ed, and a defendant beneficially interested, applied for and obtained the decree from the registrar which he carried into the master's office, a motion to give the carriage thereof to the plaintiff, was refused with costs. Steers v. Cayley, 1 Cham. Rep., 165. 13 — Undertaking. W entered into a contract for the purchase of property, the price being payable by instalments, and there being a mortgage on the property to the Trust and Loan Company, which was not due, the vendor was to give the vendee, W, a ijond of indemnity in respect of the mortgage. A decree was made at the suit of the vendor for spe- cific performance, on the undertaking of the plaintiff, recited in the dedree, to procure a release or discharge of the mortgage, and the overdue instalments were ordered to be paid into the bank subject to the further order of the Court. On a question subsequently arising, as to the effect of this undertaking, it was held, that the performance of the undertaking was not a condition precedent to the paying in of the money, but was a condition precedent to its being paid out. Roh- Km V. Wride, 13 Grant, 419. T V. u 146 EQUITT DIGEST. J l4)— 'Money paid out of Court in mistake. A sum of money haviog been paid in under the decree an applioa* tion was made by the plaintiff to have it paid out which the Court declined to .rder without an unconditional execution of a discharge by the company. A deed, sealed by the company, but which had never been delivered, was then, through some misunderstanding, sub* ■utted to the Court as duly executed and delivered, and on the faith of this representation the money was paid out accordingly. On the facts being subsequently discovered by the defendant and brought before the Court on petition, the Court ordered the restoration of the money. lb. IS — Dday in carrying into niaeter's ofke. Where a decree referring a matter to the master is not, within fourteen days after such decree is pronounced, brought into the master's office by the party having the carriage thereof, any Other party may apply under the general order, No. 42, sec. 1, without first having the decree drawn up and entered. Ernes v. Ernes, 1 Cham. Hep., 385. Sex Alimomt- -Amending— Married Woman — Mortqaqx— Practice. DEDICATION. Axits coiutltutinK, 1. Of Umd (or engine houaes, S. Leum, S. Injunction, S. Acta held m not consiitutinf , 4. Of land to public usoa, S. 1 — Ads constituting. In the year 1827 the Canada Company, through their agent, pro- ceeded to lay out the town of Guelph into vilUge lots, the surveyor who was employed for that purpose being directed to reserve a por- tion of the lands for the purposes of a market square, around which lots were laid off and sold to different parties. A market house was erected upon a portion of the reserved land, and the whole space re- mained open as public grounds, without any interruption, until the year 18&2, excepting that about the year 1841 certain pencil marks were discovered upon a map belonging to the company, the date and origin of which did not appear, seeming to lay off a portion of the Ifmd so reserved into two blocks, which led to a correspondence with the officers of the company, in the course of which one of the oom- misttoners of the Canada Company wrote a letter in which he stated, that " they had determined not to dispose of those reserves otherwise than with a vi< I hope this ma corrcd until th was issued by building lots; ing an injunoti nie. Held, tl the land in qu( perpetual injut out the aid of this relief. ^ 632. l—Ofland^ The district terms of the gi sions of the sei apart a portion house, and ha> ing lots and a for the city of man's hall anc wards, procce( restrained the the use to whi Municipality < 3 — Leases — In the year out into build ed for a publi Brantford ex< nants for ren( renewal of su tomey Genci their respect! ^—Acts m In 1836 t the same to property wa grounds on ' was situate, EQUITY DIGEST. UT !— than with a view to the publio advantage of the towr of GuelfA ; thus I hope this matter is satisfaotorily set at rest." Nothing farther oc- enrred until the month of February 1852, when an advertisement was issued by the company of their intention to sell these blocks in building lots ; whereupon a bill was filed by the municipality, pray- ing an injunction to restrain the company from proceeding to such nie. Held, that under the circumstances a complete dedication of the land in question had been made for the uses of the town, and a perpetual injunction was decreed with costs. And, sembh, that with- out the aid of the letter sufficient was shown to entitle the council to this relief. Municipality of Guelph v. Canada Company, 4 Grant, 632. 2 — Of land for engine house — Injunction. The district council of the Home District had a right under the terms of the grant of the jail and court house block and the provi- sions of the several statutes authorising them to sell the same, to set apart a portion of the land for the use of a firemen's hall and engine house, and having had the court house square surveyed off into build- ing lots and a portion thereof reserved for the site of an engine house for the city of Toronto, upon which the city authorities erected a fire- man's hall and engine house ; the county council, some years after- wards, proceeded to obtain possession thereof by action. The Court restrained the action and declared the land in question dedicated to the use to which it had been so set apart. The City of Toronto «. Municipality of York and Peel, 6 Grant, 525. 3 — Leases — Injunction. In the year 1830, when the site of the town of Brantford was laid out into building lots, a part containing nearly two acres was reserv- ed for a public market square. In 1850 the municipal oounoil of Brantford executed building leases of portions thereof, with cove- nants for renewal. Upon an information filted the Court restrained the renewal of such leases, or the granting of any new leases. The At- torney General, assented ^o the leases already made continuing for their respective terms. Attorney General v. Brantford, 6 Grant, 592* 4 — Acts not held as constituiing. In 1836 the owner of a tract of land in the city of Toronto caused the same to be surveyed and laid off into building lots, a part of the property was enclosed within fences forming a large garden and grounds on which the residence of the former owner of the property was situt^te, and which had alwit^ys been occupied by the proprietor of Mf, 148 EQUITY DIGEST. (- 1 the estate or his tenants. The surveyor in preparing the plans re- presented this part of the (ffoperty as heing within fences, and wrote on the space " McGill's Square." Around this were laid off build- ing lots, sub&Dquently sold to several persons. In 1857 a bill was filed by the city of Toronto and the owner of one of the lots front- ing on this space, on behalf of himself and all other purohasem of such lots, seeking to enjoin the proprietor from building upon or selling the space so marked, on the ground either that the same had been dedicated to the public or that the purchasers were entitled to free access therto, or to have the same retained as an open space, al- leging a verbal agreement to that effect at the time of the sales being made. Held, that what had been done did not amount to a dedica- tion to the public, that the evidence was not sufficient to establish- a grant of the easement claimed by the purchasers, and that if either elaim had been established there was a misjoinder of plaintiffs. The City of Toronto v. McGill, 7 Grant, 462. 5 — Of land to use of public. A piece of land was, in 1818, vested by patent in trustees for the benefit of the inhabitants of T. Acts of Provincial Parliament after- wards passed authorised the city to lease this land for any term of years, or absolutely to sell and dispose of it ; the moneys so raised to be expended in the purchase, ornamentation and care of other lands in the city. The corporation afterguards had this plot of land fenced in and trees planted in it. C was possessed of a dwelling house and lands adjacent to this plot, where she resided. In 1862 the city cor- poration agreed to lease this plot to M, who undertook to erect works on it which would be of benefit to the city by increasing its revenue. C then filed a bill to rcstraiu the completion of the lease and appro- priation of the ground, alleging that it had been fully dedicated as a public park, and that she, as an individual, and the public generally (represented by the Attorney-General) would bo injured by such appropriation. Held, that the corporation had authority under cap. 84, Con. Stat. U. C, to appropriate {bis land as proposed. The AUomey.General v. The Cihj of Toronto, 10 Grant, 436. DEED OF SEPARATION. Sbe Husband and Wife. Afr«ct o( credit AHignnunt tor Assignment, fri Cuiada Compai Delivery of, 4. Executed by at In blank, 17. Illegal purpose Insanity, or Im Interest, 16. Long poisesslot chaser. Notice, 4. . Bectiflcatlon of I—Rectiji The own thereof at a of the lot V discovered, gore or port to be the we mill and sa; the strip ; t on the stri[ as one prop whole to th( the east bal rapt in the saw mill, ta bankrupt's bill filed ag plaintiff wa foreclosure der the circ 2 — Settin due iuj (1) A both of b from habit deed of val habit of fu wards exec son. A bi ground of business. . EQUITY DIGEST. 149 DEEDS. Affect of creditors contetting, 0. Atsignment for benefit of oroditors, 8, 9, 11. Alignment, fraudulent, 10. Cuiad* Company, covenant by, 14. Delivery of, 4. Executed by attorney, 15. In blank, 17. lUegal purpose given for, 18. losanity, or imliecility of party making, 3. Interest, 16. Long poasegsion under, see vendor and pur- chaser. Notice, 4. Rectification of, 1, 6, 12. neforming, 6. Registered judgment, 10. Registration, 4, Setting aside for fraud,2. " " see vendor and purchaser. Specific performance, 6. Stamps, &c., 13. Staying proceedings in appeal, 6. Time allowed for creditor to execute, 9. Undue Influence, 2. Varying, 7, 16. Vendor and vendee, 8. Void inBtruu.ont, 3. 1 — Rectification of. The owner of a lot of land executed a mortgage on the west half thereof at a time when it was supposed that the east and west halves of the lot were divided by a public highway. Subsequently it was discovered, upon a survey of the property being made, that a small gore or portion of the cast half was embraced in what was always taken to be the west balf only. At the time of the mortgage there was a grist mill and saw mill under one roof, about one-third of which was on the strip ; there was also a tavern, storehouse, barn and piggei7, all on the strip ; and the west half and strip had always been occupied as one property by the mortgagor, who delivered up possession of the whole to the agent of the mortgagee, afterwards the mortgagor sold the east half up to the road, and subsequently, having become bank- rapt in the meantime, took a lease of the west half, " with a grist mill, saw mill, tavern, shed, store, &c.," and no mention was made in the bankrupt's schedule of assets of any claim upon this property. On a bill filed against the mortgagor's assignee in bankruptcy, held, that plaintiff was entitled to have the mortgage rectified, to a decree of foreclosure for the whole of the property including the strip, but un- der the circumstance without costs. Russell v. Davy, 6 Grant, 165. 2 — Setting ctside for fraud — Insanity or imbecility — un- due infiuence. (1) A person, who had at one time been remarkable for strength both of body and mind, and much respected, having become from habitual drunkenness, imbecile, deranged and fatuous, made a deed of valuable property to one of his sens, who had been in the habit of furnishing him with drink, and JiO\it fifteen months after- wards executed a deed for the same property to the wife of the same son. A bill was afterwards filed to set aside these conveyances on the ground of fraud and Incapacity on the part of the grantor to transact business. After the cause had been at issue and evidence taken at great ?i^"'W.j :, ■n Mi^ r W }-]i i St. ■ ,;5fe I dik^' 160 EQUITY DIGEST. length, a release of the action was obtained from the plaintiff with« ont the intervention of any legal adviser aeting on his behalf. The Oourt set aside the conveyances, as also the release which had been Bnhseqaently obtained with costs. Nevills v. NevUls, 6 Grant, 121. (2) The Court, though it refused to set aside a purchase on the ground of fraud in the vendor, gave leave to amend the bill alleging over-value as a ground for relief. Rees v. Wittrock, 6 Qrant, 418. 3 — Void instrument — Not ordered t< ^c delivered up. The owner of a large tract of waste lands of the Province, resident in Canada, executed a power of attorney to an agent about to visit England, authorizing him to enter into contracts, under seal, for the sale of them, and in the power were specified several terms upon which the sales were to be effected, and the deeds were to be with bar of dower, but no power was given to the attorney to execute the deeds fer either oflhegrantbg parties, by express words or to receive the money, The agent induced the defendant to become a purchaser of the whole for £2,500, making about fiye shillings sterling per aero, and about one sixth of the lowest price set upon the lands by the owner by his private instructions to his agent, signed a contract for sale which was not under seal, and subsequently executed a deed, purporting to convey the lands to the purchaser. The owner having become aware of the facts, filed a bill to have the deed delivered up to be cancelled, as forming a cloud upon his title, the Court refused the relief prayed, the rule being that instruments void upon the face of them will not be ordered to be destroyed, as forming a cloud upon the title, and under the circumstances dismissed the bill, without costs, the pur- ohaser having been guilty of great negligence and carelessness ; accom- panying such dismissal with a declaration of the reasons of the Oourt for so decreeing. Hurd v. Billinton, 6 Grant, 145. 4t — DeUvery of— Mortgage — Notice — Registration. A mortgage in favour of parties in Europe, was executed in this country, and left in the hands of the Attorney who prepared the se- curity with directions from the mortgagor not to register it until further order ; after the death of the mortgagor; the mortgage was delivered up to the agent of the mortgagees, who had the same regis- tered. Held that there had been a sufficient delivery during the life- time of the mortgagor, and that a person who entered into partner- ship with the mortgagor, and thereby acquired an interest in the mortgage estate, with a knowledge of the circumstances attending the execution of the mortgage did so subject to the claim of the mortgagees. MacKechnie v, MacKechnie, 7 Grant, 23. B^RectiJi proceedi A steam was register firom this oo sel, and gav and suffioiei from that d afterwards i general pari ers by mean partners no removal of f oeedings at ment agains pertbrmanc( under the j changes whi the depreoia and dismiss (Affirmeq Q—Reforn A trader and his effe< whom were The claim o thereabouts that credito was stated executed tfa ing his acc( to £5,062. iused to pa by introdu( words " or amount ov( prayed, ani 75. 7— Vary To indu parties the EQUITY DIGEST. 161 5— Rectification of Deed — Specific Performance — Staying proceedings on appeal. A steam vessel owned by the members of a limited partnership, was registered in the name of the general partner. Daring his absenot firom this country, the special partners agreed for the sale of the ves- sel, and gave their bond conditioned for the obtaining of a good and sufficient transfer thereof to the purchasers within three months from that date, and placed the purchasers in possession. Two years afterwards the vessel was sold under execution issued against the general partner, and was taken out of the possession of the purchas- ers by means of a writ of replevin, the purchasers giving to the special partners notice of these proceedings who took no steps to prevent the removal of the vessel, and the purchasers thereupon instituted pro- ceedings at law against the obligors in the bond, and recovered judg* ment against them, after which they filed a bill praying a specific peribrmance of the contract, and an injunction to stay proceedings under the judgment, the Court taking into consideration the great changes which had taken place in the position of the parties, and the depreciation in value of the steamer, refused specific performance and dismissed the bill with costs. Cotton v. Corby, 7 Grant, 60. (Affirmed on appeal, 3rd Feb,, 1860.) 6 — Reforming Deed — Assignment for Benefit of Creditors. A trader having become involved, made an assignment of his estate and his effects to trustees for the benefit of his creditors, some of whom were declared to have preferred claims, and to be paid in full. The claim of one of them was stated by the debetor to be " £3,600, or thereabeuts," no account having been settled between the debtor and that creditor for a long time, and the sum so mentioned by the debtor was stated in the schedule as the amount, and the several creditors executed the deed of assignment, the creditor afterwards on balanc- ing his account with the debtor ascertained that his claim amounted to £5,062, and demanded this sum from the trustees which they re- fused to pay, whereupon the creditor filed a bill to reform the deed by introducing the latter sum as his claim on the ground that the words " or thereabouts " were sufficient to include the excess of that amount over and above the £3,509, the Court refused the relief prayed, and dismissed the bill with costs. Chapin v. Clarke, 7 Qrant; 75. 7 — Varying deeds. To induce the Court to vary a written instrument executed by the parties thereto, on the ground of alleged mistake, the evidonee mwt m ■^ > TTT 152 EQUITY DIGEST*. f''A f V. i: tt v^ t\': be of the strongest character, vhere therefore a bill was filed for the purpose of rectifying an all^d error in a mortgage deed by insertbg '• £226" instead of "£126" and the defendants in their answers, denied the fact of any mistake having occurred, and the conveyancer who drew the deed, swore that he had read over with distinctness the written portions of the conveyance : that the mortgagee had corrected him as to the time of the money being payable, and that he did not think he could have been understood as reading " two " when he read " one, " and it also appearing that the instructions from which the mortgage had been prepared had been given to another person in the absence of the conveyancer, and that the same were read over to the parties at the time, the Court under the circumstances dismissed the bill with costs. Williams v Felker, 7 Grant, 345. 8 — Vendor and Vendee. The Court will in a proper case order a deed to be cancelled, or if registered, a conveyance of the estate to the person properly entitled, and that, although his title may be such that he would succeed in defending any action brought against him at law. Harkin v. Rabidon, 7 Grant, 243. 9 — Assignment for benefit of creditors — Time allowed for creditors to eaxcute — Affect of creditors contesting deed. Traders havins; become involved in their circumstances made an assignment to trustees for the benefit of such of their creditors as should come in and execute the same within a time named in it. One of the creditors instead of executing the deed sued the] debtors, and an issue under an interpleader order having been found against the creditor, a motion was made to the Court of Queen's Bench for a new trial which was refused: Thereupon, after the time limited for sign- ing, the creditor applied to the trustees to be allowed to execute the deed of trust which the trustees permitted. Upon a bill filed by a creditor who had previously recovered judgment and registered the same against the trust estate, the Court declared the plaintiff entitled to payment of his claim out of the proceeds of the estate in the hands of the trustees, and that the creditor who had contested the validity of the deed had thereby forfeited all right to participation in the benefit of the assignment. Joseph v. Bostwick, 7 Grant, 332. 10 — Registered judgment — Fraudulent assignment — Issue A conveyance may be fraudulent and void as against creditors, al- though no debt may be in existence at the time, if made in oontem- plation of be attending a t such that the conclusion th purpose of d instance of a ordered to be question shoi RaUenbunj, 11— Assigy An assign aside the dee( been made to and the cred priority to tb trustee. Mi l2-~Rectif A deed ex in Upper Ca was proved v law of LoweJ grantor in tb ordered the ( according to 645. Id—Stamj Deeds exc uate in this ions of the though unst 14 — Coven The Cant ing to purcl usual coven Company n the compan vendor. £ 15— Deed A prior < EQUITY DIGEST. 15S piation of becoming indebted, where, therefore, the ciroamstaocea attending a transfer of real estate from one brother to another were sttoh that the Court felt satisfied that jury would have arrived at the conclusion that the sale was colorable and fictitious and made for the purpose of defrauding creditors, the deed was declared void at the instance of a creditor of the assignor, the amount of whose claim was ordered to be paid in one month , or in default that the property in question should be sold. The Bank of British North America v. Ratlenhunj, 7 Grant, 383. II-— Assignment for benefit of creditors hy insolvent. An assignment by an insolvent for the benefit of creditors was set aside the deed containing a general release by the creditors, and having been made to avoid an execution about to be issued by one of them, and the creditors generally were declared entitled according to their priority to the proceeds of the property which had been sold by the trustee. McDonald v. Putman, 7 Grant, 395. 12 — Rectifying deeds. A deed executed in Lower Canada, conveyed certain lands situate in Upper Canada to parties " and their successors " which words it was proved were sufficient to convey the fee simple according to the law of Lower Canada, and it was proved that the intention of the grantor in the deed was to convey the lands absolutely, the Court ordered the devisee of the grantor to execute a release of the lands according to the law of Upper Canada. Allan v. Thome, 3 Grant, 645. 13 — Stamps to deeds executed in England. Deeds executed in England for the purpose of conveying land sit< uate in this Province, do not require to be stamped under the provia- ions of the English Stamp Acts, but are valid in this Province though unstamped. Murraif v. Van Brocklin, 1 Cham. Rep., 300. 14 — Covenants in deeds from the Canada Company. The Canada Company by their charter are not exempted from giv- ing to purchasers of the lands granted to them by the Crown, the usual covenants against their own acts, and as to lands which the Company may have obtained by purchase from private individuals, the company will be required to give the same covenants as another vendor. Scarlett v. The Canada Company, 1 Cham. Rep., 90. 15— Deed executed by attorney. A prior deed thraogb wbioh the title oomes to the vendor having 154 EQUITY DIGEST. been executed by the attorney of the grantor, does not render tho title invalid, or such as a purchaser will not be bound to accept, Farrell v. Moore, 1 Cham. Rep., 139. 16 — Varying — Interest An instrument under seal may be bo varied in equity by an agree- ment for valuable consideration not under seal. A written promise by a mortgagor after default to allow more than the six per cent, interest reserved by the mortgage, was held to be binding, on the authority of Alliance Bank v. Brown, 10 Jur, N. S., 1121, though there did not appear by the writing to have been any consideration of forbearance or otherwise for such promise. Brown v. Beacon, 12 Grant, 198. 17 — Execution in blank. A debtor being about to leave this Province for the purpose of raising funds to discharge his liabilities, signed and sealed a printed form of mortgage upon certain lands, without, however, having in* sorted either the name of himself or tho mortgagee therein, which was also in like manner executed by the wife of the mortgagor, and by him locked up in his desk. From Halifax, he wrote to his agent here, instructing him to fill up the blanks as he should find necessary, which was accordingly done, and handed over to the mortgagee. HeM, that this was a sufficient execution of the mortgage, and that the same was a valid charge upon tho property embraced in the in- strument. Montreal Bank v. Baker, 9 Grant, 97. Held, ( affirming the foregoing decree, ) that whether tho deed there mentioned as having been executed in blank, operated as a deed or as a mere parol agreement, it created a charge upon the equitable estate of the debtor, and that a registered judgment creditor having notice thereof before the registration of his judgment would be bound thereby. S, C, 9 Grant, 298. 18 — Given for illegal -purposes. The owner of real estate being under arrest, upon civil process, conveyed hia lands to a person, for the purpose of enabling the grantee to justify as special bail in the action, and after the same had been settled the lands were re-conveyed ; but in the meantime a writ against the lands of the grantee had been placed in the hands of the sheriff, and a sale was effected thereunder, after such re-assign- ment and a conveyance made to the purchaser, (the plaintiff in the writ,) who had notice of the claim set up by the original. owner. Held, that th ality, and tha getting back ^ in his answer thereon, for Court decreec full amount o and the costs answer allege abling tho gr as bail upon under the cir saying that t that althougli public policy, effect to the ( not state tha «. Baby, 10 (Affirmed Mowat, V. C See Con> See Frin See Spec See Bei As to pari The pure shares, is n( Hurd V. R( See Sfi See Co; DOB AMD EQUITY DIGEST. 155 by Held, that tho transaction was one against public policy and mor- ality, and that the Court would not lend its aid to the grantor in getting back his estate ; but tho purchaser at the sheriff's sale having in his answer disclaimed any interest in the land, other than a lien thereon, for the full amount of his judgment and expenses, the Court decreed the plaintiff relief upon the terms of his paying the full amount of such judgment and expenses, together with interest and the costs of the suit. And the defendant having also by his answer alleged that the conveyance was made for the purpose of en- abling the grantee therein to justfy as bail, and that ho did justify as bail upon the lands so conveyed, and submitted that "the plaintiff under the circumstances, ought to be estopped, and precluded from saying that the said lands arc not the lands" of the grantee, held also, that although the defendant did not object that the act was against public policy, there was sufficient stated to enable tho Court to give effect to the objection of illegality, notwithstanding the answer did not state that such use would be made of the facts stated. Langlois V. Baby, 10 Grant, 358. (Affirmed on re-hearing before Vankougnet, C, Spraggc and Mowat, V. C. C. See Volume XI, p. 21.) See Conveyance. — Vendor and Porchaser. DEED OF GIFT. See Principal and Aqent. DEED SIXTY YEARS OLD. See Specific Performance. DEED QUIT CLAIM. See Redemption. DEFECTIVE TITLE. As to part of estate. The purchaser of an entire estate, which had been divided into shares, is not bound to accept, if the title to one share is defective. Hurd V. Robertson, U. C. L. J., Vol. V, p. 67. See Specific Performance.— Vendor. DEFENCE AT LAW. See Collateral Security — Specific Performance— Ven- dor and Purchaser. ;;'V^Hn,(l,';-:ff PP^ 'v'.'"'| .1. .?■*■,•.' ■■' /r'-: i %i.a ' - + '-:;-t,: : >!..;■ .■i- ■ $:<^ ■■ ^fi^^mM i:i"'!« If > ■:■■■ ■ tr^ :?«■: ;•:* 5 'i:„i,k w 166 EQtnTT DIGEST. DEFICIENCY OF QUANTITY OF LAND SOLD. SeV SpXOIFIO PERFORMANCi! (90.) DE INTERESSE SUO. The effect of a claimant's examination de interesse suo, considered. Prentiss v. Brennan, 2 Grant, 582. Note. Examination de interesse suo, are now abolished by order. See Practice. DELAY. 1 — Injunction. On an application on behalf of the Crown, for a special injunction it appeared that the acts and threats complained of oocarred eight and eleven months before the filing of the bill, and the motion for the injanction was made twelve months after the answers filed ; held, that the application was too late. Attorney General v. McLaughlin, 1 Grant, 34. 2 — Notice — Pro confesso. Where a plaintiff allows six months to elapse after service of the bill, before moving for an order pro confesso^ for want of answer, notice of the application must be given to the defendant. Brown v. Baker, 1 Cham. Rep., 7. See Administration Sdit.— -Disuissino Bill. — Injunction. DELIVERY OP POSSESSION. Order for, 1, 6. After final order, 2, 8, 4, 6. Order of June 29, 1881, 7. Where no direction in decree, 8. Order against persona not purties, 0. 1 — Order for. In moving to commit for a contempt in not delivering possession of mortgage premises in obedience to an order made in pursuance of Order XXXII of 1853, it must be shewn that the possession was demanded. Esten, V. 0. Nei'ieux v. Lahadie, 1 Cham. Rep., 13. 2 — After final order. An order to deliver up possession of mortgaged premises, after final order of foreclosure, will not be &;ranted ex parte, notice must be served ; it is not necessary however to demand^possession. Hodkin- son V. French, 1 Cham. Rep., 201. 1 3. Whe order for foi of the mort the circums defendant h Cham. Rep. 4, On a the mortgag be shewn th V. French, 1 6— After J The fact gagee, and possession, i order will b; at law, and final order f possession Q— Order) purchas Where an mortgagor f( title deeds, or if he be ] the sale. 1 7 — Orden Held, th entitled to ants of the the mortgaj Rep., 117. S— Where Where t' up po.sses3i session was A motio for Court \ 9 — Ordei An ordc EQTTITT DIGEST. 167 3. Where more than three yean had elapsed between the final ordor for foreoloRure, and an application fox the delivery of posflession of the mortgaged premises, the Court required an affidavit, shewing the circumstances of the possession since the final order, and that the defendant had never relinquished possession. Irving v. Munn, 1 Cham. Rep., 240. 4. On an opplication against a mortgagor to deliver possession of the mortgaged premises, after a final order for foreclosure, it must be shewn that tho mortgagor is actually in possession. Hodkinson V. French, 1 Cham. Rep., 223. i 6 — After final order — Ejectment suit pendiTig. The fact that an ejectment suit has been brought by the mort- gagee, and is pending, is no bar to obtaining the usual order for possession, after final order for foreclosure; but in such case the order will ha granted only ou the terms of discontinuing the action at law, and paying tho costs of it. A delay of two years after the fiaal order for foreclosure is no bar to obtaining the usual order for possession. Mojatl r. White, 1 Cham. Rep., 227. 6 — Ordzrfor delivery of possession and of title deeds to a purchaser after sale. Where an application is made by a purchaser for an order against a mortgagor for the delivery of possession of the property, and of the title deeds, notice must be served on the plaintiff (the mortgagee), or if he be paid off to some other party interested in the proceeds of the sale. Walker v. Matlhews, 1 Cham. Rep., 232. 7— Orders of 29th June, 1861. Held, that under the orders of 29th June, 1861, a mortgagee is not entitled to an order for the delivery of possession, as against the ten- ants of the mortgogor, although such tenancy may have begun after the mortgage was made. Bank of Montreal v. Ketchum, 1 Cham. Rep., 117. 8 — Where no direction in decree. Where the dcoreo by oversight contained no direction as to giving up po.ssession, a supplemental order directing the delivery up of pos- session was made, bat on payment of costs. A motion for such an order was considered more properly a motion for Court than Chambers. Mason v. Seeney, 2 Cham. Rep., 30, 9 — Order against persons, not parties. An order for delivery of possession, is only made against persons tri: 168 EQUITY DIGEST. #1 not parties when they acquired possession pendente lite from a party to the suit, and have no pr'^tence of having a paramount title, though the rule may bo somewhat broader in the case of receiven, and sequestrators. The Bank of Montreal v. Wallace,^ 13 Grant, 184. SiE Final Order — Pobsebsion — Specific Perforhance. DE LUNATICO. See Practice, 61. Amendments, 5, 10. Pro con. CMS, 1, 10. Costs, 2, 4, 0, 16. Ore tenus, 3, 8. Examination of defendant, 5. Notice, 6, 12. Setti.-iff down, 6. Time for, 7. 1 — Pro con. case. DEMURRER, Effect ut giving time to answer, 7. Qualiflod aiiegatinn, 8. Multifariousnesf, 11. Mortgage, 12. Dower bill, 13. MiHJoinder, 14, 17. Hie subject generally, 18, 19. 05 A defendant appearing at the hearing and waiving all objection to an order pro confesso, may shew that the bill is open to demurrer for want of equity. Greig v. Green, 6 Grant, 240. 2— Coats. A demurrer having been held good on one ground, though over ruled as to the other, the defendant was allowed to answer w ' ^t costs. Paine v. Chapman, 6 Grant, 338. 3 — Ore tenus. The commissioners, under the heir and devisee act, in deciding upon claims brought before them, are not bound by the strict rules applicable to courts of law. Where, therefore, a purchaser from the crown devised land for which the patent had not yet issued to his wife for life, with a power of appointment amongst his descendants in tail, and she, by her will, devised the estate to one of such descendants in fee, who applied to the heir and devisee commissioners, and the commissioners recommended a grant in tail to the person named as devisee. The crown, acting upon such recommendation, issued a patent in favor of such devisee. A bill was afterward filed to set aside the patent, as having been issued in error or through improvi- dence. A demurrer put in ore tenus at the hearing for want of equity was allowed. Scane v. Hartrick, 7 Grant, 161. 4— Co8. Phipps, 7 Grant, 483. 2— Statute 5, William IV. The statute 5, William IV., oh. 1 (Consolidated Statutes ch. 42,) which permits the holder of a promissory note or bill of exchange to sue all parties liable upon it in one aci;9n, docs not affect the rights and liabilities of the defendants to such an action as between themselves, but leaves them in the same position as if they had been sued sep- arately, lb. 3 — As to facts capable of proof aliunde. A bill will not lie for the discovery of facts which the plaintiff in equity may prove aliunde in his defence at law. lb, 4 — Eacamination of defendants, reading at hearimj. The examination of a defendant after answer, or after the time for answering has expir'^.d, is a substitute for the discovery by answer, and a plaintiff can at the hearing, read such examination, or parts of it, in the same manner as a defendant's answer, or passages from it oould bo used against him at the hearing, for this purpose it is not ne- cessary to examine the defendant at the examination of witnesses. Procter v. Grant, 9 Grant, 26. The Court while affirming the general doctrine, on which the de- cree was pronounced in this case, reversed the same on the ground of want of notice of the improper conduct of the grantee of the crown in obtaining the patent. Spragge, V. C, dubitante, S. C, 9 Grant, 224. 5 — Foriyi of hill. The orders of Court of 1853, which abolish all interrogatories in bills, do not apply to bills for discovery in aid of an action at law, in fiuoh oases the old practice still prevails. Hayball v. Shepherd, 12 Grant, 426, Sek Pleadinq. The Court where among as it appeare plaintiff migl works, sugge referred by tl that these alt gested before the engineers 13 Grant, 5( Abatement. 24, 2 After decree, 29. After replication Before decree by Certificate of reg Costa, 20. Costs, wliere refi Costs in cause, is Cootii without, 2 Defendant died, Delav, 22, 23. Discharging orac Disclaimer, 21. Costa of prior nic \—Witkou The Cour to the plaii 124. An order of a notice ( such motion 2—Gertifii III movinj for the certi had been fil been had, a was served. ^—By pic Where a entitled, as file another EQUITY DIGEST. DISCRETIONARY POWER. 167 The Court will relactantly interfere with a company's discretion where amongst engineers there may be a difference of opinion ; but as it appeared in this case that the damage complsined of by the plaintiff might be avoided by certain alterations of the company's works, suggested by an eminent engineer to whom the matter was referred by the Court ; and it being stated on behalf of the Company that these alterations would have been made by the company if sug- gested before suit, the Court decreed the making thereof, agreeably to the engineers' report. Moore v. Grand River Navigation Company, 13 Grant, 560. DISMISSING BILL. Abatement. 24, 27. After decree, 29. After replication, 30. Before decree by plaintiff, 23. Certificate of registrar, 2. Costs 20. Costal where refused witli, 11, IC. Costs in cause, lU. Costs without, 21 . Defendant died, when one, l.";, 2(J. Delay, 22, 23. Discharging: order for, (i. Disclaimer, 21. Costs of prior motion, 13. 1 — Without 'prejudice. The Court will not upon motion to the plaintiff filing another bill 124. 2 — Order to amend answer to. Ex parte, 25. Irregular where held, 12. Laches, 24. Plaintiff by. 10. Plaintiff, with leave to file new bill, by, 3. Precipe on, 19. Prejudice, without, 1. Replication, talcing off files, 7- filing, 9. Revivor, 24. Setting dowTi cause, 4, 6. Subject matter of suit gone, where, 14. Undertaking to speed, 9, 17, 18. " to answer, 8. dismiss a bill without prejudice Gwynne v. McNab, 2 Grant, An order to amend having been obtained and served after service of a notice of motion to dismiss, was deemed a sufficient answer to such motion. Hill v. Hill, 2 Grant, 692. 3 — Certificate of Registrar. In moving to dismiss for want of prosecution, it is not sufficient for the certificate of the registrar to state only that no replication had been filed, it must also state that no further proceedings have been had, and it must be shewn when the office copy of the answer was served. Thompson v. .Buchanan, 3 Grant, 652. 3 — By plaintiff, with leave to file new hill. Where a cause has been set down for hearing, the plaintiff is not entitled, as of course, to an order dismissing his bill, with leave to file another bill. Gardner v. Brennan, 4 Grant, 199. 'li 'A ;,i v. , ^1 ■tM' ■1 ;«;'.:>, mm ,**- ■m mi r '^ n .J m t s 1 1'! .1 sS t : •: 4' 168 EQUITY DIGEST. w \ 4 — Setting down cause. A plainti£P having set down his caase to be heard, subsequently countermanded the notice of hearing which had been served upon the defendant; amotion to dismias for want of prosecution was, under the circumstances, refused without costs. (^Contra Spawn v. Nelles, 1 Cham. Rep., 270.) Richardson v. Moser, 1 Cham. Rep., 18. 5 After notice of motion to dismiss for want of prosecution had been served, the plaintiff set the cause down to be heard by way of motion for decree, and served notice on the defendant. Held, a suf- ficient answer to the application, but that the defendant was entitled to his costs, he having been in u position to give the notice of motion to dismiss. Towers v. Foott, 1 Cham. Rep. 32. 6 — Discharging order for. After an order dismissing a bill for want of prosecution had been obta:neo upon notice, the plaintiff applied to discharge that order, al- leging h/s intention of prosecuting the suit, and that he had not re- ceived any personal notice of the motion to dismiss. The application was granted upon payment of costs, and the terms of paying into Court certain instalments claimed to be due the defendant. Camp- bell v. Ferris, 1 Cham. Rep., 50. 7 — Taking replication of the files. Where the pldntiff had filed an irregular replication, afterwards obtained by consent an order to amend the same, but did not do so ; and a defendant moved to dismiss for want of prosecution, when the Court, treating the replication as no replication, ordered a repli- cation to be filed within two months, or bill should stand dismissed ; at this time two of the defendants had not answered, and on the 12th of the month, the replication was amended. Four days afterwards the plaintiff obtained an order pro confesso against the two defendants who had not answered. Under these circumstances a motion to re- move the replication from the files and to dismiss the bill for want of prosecution was granted with costs. Lewis v. Jones, 1 Cham. Rep.. 120. 8 — Undertaking to answer. A solicitor undertook to put in answer which was not insisted upon, and the solicitor for the plaintiff undertook to go down to examina- tion, but failed to do so. A motion made by this defendant to dismiss was refused, but, under the circumstances, without costs. Coitm V. Gamerony 1 Cham. Rop., 122. EQUITY DIGEST. 169 Held, per Spragge, V. C, in opposition to Ruttan v. Burnham, that, on a first motion to dismiss lor want of prosecution, it is the settled practice of the Court to accept an undertaking to speed, with- out regard to tlie delay which has taken place. 1 Cham. Kep., 247. ^—Undertaking to speed- — F'dhuj repUeation. On a motion to dismiss for want of prosecution after great delay, it is now the practice, as established by Vaiikoughiiet, C, with a view to enforce diligence in the proseeutiuii ,7. 170 EQUITY DIGEST. m 'a 13 — Costa of prior motion. A motion to dismiss for want of prosecution had beenreflised \rith ooRts. Held, that another motion to dismiss could not be made till the costs of the prior one were paid, though it appeared that the plaintiff's solicitor had not taken out hisoertifioato. Harvey v. Fer. guaun, 1 Oham. Rep., 218. 14 — Stay of proceedings or dismissal of bill — Subject inat- ter of suit gone. An order will not be granted to stay proceedings or dismiss the bill in a suit merely because the subject matter of it has gone ; the plain- tiff has a right to proceed to a hearing to shew himself entitled to costs. Wallace v. Ford, 1 Cham. Rep,, 282. 15 — WJiere one dsfendant is dead. Where a suit is partially abated by the death of one of the defend- ants, the other defendants cannot move to dismiss the bill for want of prosecution, the proper course is to move that the plaintiff do revive within a limited time. Bonk of Upper Canada v. Nichol, 1 Cham. Rep., 294. 16 — Where refused with costs. The plaintiff had served an order to produce upon the defendant who had thereupon filed an affidavit on production, a copy of which had been demanded by the plaintiff, but hud not been served. Un- der these circumstances a motion by the defendant to dismiss for want of prosecution was refused with costs. Proudjoot v. Thompson, 1 Cham. Rep., 367. 17 — Undertaking to speed. An undertaking to speed is an undertaking to set the cause down on bill and answer, or to file a replication within three weeks. The fact that there is ample time to go to a hearing at the ne:^t sittings of the Court is no excuse for not filing the replication within the time mentioned. Burnham v. Burnham, 1 Cham. Rep., 394. 18 It is now the settled practice of the Court (until altered by general order) to accept an undertaking to speed upon a first motion to dismiss for want of prosecution, and in oases where it would have been accepted prior to the establishment of hearing circuits. Mallock V Plunkett, 1 Cham. Rep., 298. But the practice has been altered since this case. See general orders, and note above. 19— On pri Where a d turn thereof t dismiss his bi entitled to tu the cause. 20— Costs. Where on objection mad been paid, th demurrer to I of the party c 307. 21 — Dismis Where a d in a foreclosui claimer, he w Cham. Rep., 22 — Delay. A motion refused where tiff. Davy V 29— Delay. Bill dismis Mulholland, 24f— ioc^es In a redec motion was n to dismiss foi both. Noth' not fully ace he revive ar George, 2 CI Setnble, dants, the o1 tion without the survivin the order wi EQUITY DIGEST. 171 19 — On praecipe — Costa in cause. Where a defendant serves a notice of motion, but before the re- turn thereof the plaintiff takes out on prcscipn and serves an order to dismiss his bill, the defendant cannot bring on his motion, but he is entitled to tax his costs thereof under the order to dismiss as costs in the cause. Purdy v. Ferris, 1 Cham. Rep., 303. 20— Costs. Where on a motion to dismiss for want of proscoition, the only objection made was that the costs of a demurrer overruled had not been paid, the Court dismissed the bill with costs, the costs of the demurrer to be set off, and execution to go for the balance in favor of the party entitled thereto. Bigelow v. Thompson, 1 Cham. Bep., 307. 21 — Dismissal of bill without costs — Disclaimer. Where a defendant, having an interest in the property in question, in a foreclosure suit at the time of the filing of the bill, put in a dis* olsimer, he will not be entitled to any costs. Berie v. Mackhn, 1 Cham. Bep., 351. 22— Delay. A motion to restore a bill dismissed for want of prosecution was refused where great delay had taken place on the part of the plain- tiff. Davy V. Davy, 2 Cham. Bep., 26. 2^— Delay. Bill dismissed with costs, where delay on part of plaintiff she\7n. Mulholland, v. Brenl, 2 Cham, Bep., 31. 24 — Laches — Abatement and revivor. In a redemption suit whore one of the two defendants had died, a motion was made on part of his executors and of another defendant to dismiss for want of prosecution ; the same solicitor appearing for both. Nothwithstandiog some dehiy on part of plaintiff, which was not fully accounted for, the order was made in the alternative that he revive and go to hearing on terms, or be dismissed. Rice v. George, 2 Cham. Bep., 82. Semble. Where a suit abates by the death of one of two defend- dants, the other defendant may move to dismiss for want of prosec- tion without moving that ho revive ; but if deceased defendant and the surviving defendant be both represented by X\ie pame solicitoi; the order will be to revive, or bill dismissed. lb. , ^UmTsST ;i ■i(i?-f " '\'-: ■ ■^ ";:■■ ■ ^4'.'. H' I- 1 ,' ■; ■■'■-: ■■ ,','r <^ 1 Hj % '.■*''.: fl ^1 w 1 i ;■% 1: ),■- ■' :.• •■ • ':' ■f i /■ ^iv ^; iM F' ■ ■ ' 11 IP .;,;JiMi M m life ■is ^1 172 EQUITY DIGEST. ■<'i '■ ift/: ' ( A motion to dismiss will be entertained even afler lb. Semble, also, replication filed. 25 — Moviwj ex 'parte. Where defendant had moved to dismiss and pluintiff asked for time and time was granted and the plaintiff failed to proceed within the time given ; it was held that the defendant could move ex parte fer the order to dismiss, fiitrns v. Ckisholm, 2 Cham. Rep., 88. 26 — When one defendant (lied. One of the surviving defendants may properly move to dismiss, though suit has become abated by the death of another defendant, Kelley v Macklem, 2 Cham. Rep., 132. 27 — For want of prosecutiim — Abatement of salt by death of defendant. A defendant who was also executor for a defendant, by whose death a suit has become abated, cannot move to dismiss plaintiff 's bill for want of prosecution ; his way is to move that the plaintiff be or- dered to revive within a certain period, otherwise that the bill be dismissed. Nor can a co-defendant who has appeared and answered by the same solicitor as a defendant who is precluded from making such an application move to dismiss, though he could do so if ho had appeared and answered by a different solicitor. A defendant may move to dismiss, nothwithstanding replication has been filed and the cause is at issue. Rice v. George, 2 U. C. L. J., 303. 28 — By plaintiff before decree. After a cause has been heard and is standing for judgment, the plaintiff cannot dismiss his bill on praecipe, but only on special motion Smith V. Port Hope Harbor Company, 6 U. 0. L. J., 189. 29 — After decree. An order to dismiss a bill for want of prosecution, will not be granted after decree made in the cause. Groves, v Ryves, 1 Cham. Rep., 272. 30 — After Replication. The fact that a replication has been filed and that the defendant himself is therefore in a position to set the cause down for exami- nation and hearing, is no bar to a motion to dismiss for want of prose- cution. Spawn V. Nelles, 1 Cham. Rep., 270. Rice v, George, 2 Cham. Rep., 74, and 2 U. C. L. J.. 303. Sbx Pbaotioe. Where the ed, and had a remainder in that the rule grantee of si therefor. In by the grant whole propert Allowance A testator of his real est but during notwithstand their respect i^ father for a di the sons any : Emerson, 5 C See Inju: See Inju See Pari See Alisj See Ne J A testator taken the no of interest a( EQUITY DIGEST. DISPUTED TITLE. 173 Where the grantord were in paaaossion of half tho property convey- ed, and had un undisputed lifo estate therein, but their title to the remainder in foe, subject to such life estate, wus disputed. Held, that tho rule laid down in Pros.ser v. Edmunds did not apply to their grantee of such half, and that the grantee might maintain a bill therefor. In such case an objection taken at the hearing to a bill by the grantors and grantees against the adverse claimant of tho whole property, was disallowed. Mason v. Scneyy ll Grant, 447. DISTRIBUTION. Alloiuance for improvements. A testator placed his two sons in possession of certain portions of of his real estate, intending to convey or devise the same to them, but during his lifetime retained the full control of the property ; notwithstanding this the sons made valuable improvements upon their respective portions. Upon a bill filed after the decease of the father for a distribution of the estate, the Court refused to make to the sons any allowance in respect of such improvements. Foster v. Emerson, 5 Grant, 135. DIVERSION OF HIGHWAY. See Injunction. DIVISION COURT. See Injunction. DIVISION OF PROFITS. See Partnership. See Alimony. DIVORCE. See Ne Exeat. DOMICILE. DONATIO MORTIS CAUSA. A testator having agreed to sell a portion of his real estate had taken the note of his vendee for a sum of $900, being the amount of interest accrued due on the purchase money. This note and the ?)\ ^■ I ^ff n V < i I* IK f KU: w l?€ 174 EQUITY DIGEST. papers relating to the sale the testator had been frequently known to say he intended to give to his son, who was named as an executor of his will. Shortly before his death, and in anticipation of it, he directed the case containing his papers to be brought to him, and from amongst them directed certain notes to be selected and deliver- ed them to his wile for her own use ; the rest of the papers, amongst which were the note for $909 and the papers relating to the sale, to< gether with several notes and document;, including his will, the tes- tator handed to his son, with a direction that if he recovered they were to be brought back again ; but in the event of his death then that he [the son,] should keep them. Held that this did not consti- tute a good donatio mortis causa of any of the securities. Blain v. Terrybernj, 9 Grant, 286. See Gift. DONOR AND DONEE. DORMANT EQUITIES. Act relating to. 1. Relief notwithstanding act, 2. Express trusts not written act, 3, 7. Trust, Trustees, &c., 4, 6. Act applies to express trusts, 6. 1 — Ads relating to, 18 Vict. ch. 124. Whereas by the act to establish the Court of Chancery in Upper Canada, it was provided that the rules of decision of the said Court should be the same as governed the Court of Chancery in England, and whereas in regard to claims upon or interest in real estate, aris- ing before the said date, it is just to restrict the future application of the said rules of decision to cases of fraud, and in regard to other cases, it is expedient to extend thereto, in manner hereinafter provided, the authority so given to the (;Ourt as aforesaid in cases of mortgages. Therefore no title to or inti^rest in real estate which is valid at law, shall be disturbed or otherwise affected in equity by reason of any matter or upon any ground which arose before the 4th day of March, A. D. 1837, or for the purpose of giving effect to any equitable claim, interest or estate, which arose before the said date, unless there has been actual and positive fraud in the party whose title is sought to be disturbed or effected. ISVict., cA, 124, *. 1. I;> regard to any other equitable claim or right which may have arisen before before said date, the Court shall have authority (subject to appeal) to make such decree as may appear to the Court just and reasonable under all the circumstances of the particular case, provid- ed that the suit bo brought within twenty yoa's from the time when the right or bringing any ant or of an *,2. Con. 2— Relief g In 1862, 2 of land, on ings at com assignment o tmstees, to \ in payment c Province to The trustees should take t and he accon against the g der which ho mill, at this ( the creditors, machinery fo lame from th in ills own n< his principal trust propert; vented him f the relief sou IV., 0. 1,) ai Beckett v. H missed with < 2— Express Held per lating to dor Grasett, 6 G 4 — Trusts- sidered. In the yes lands to tru£ was a block ( townofYorl and to cons( EQtJITY DIGEST. 175 the right or claim arose, and no further time shall be allowed for bringing any such suit, notwithstanding any disability of the claim- ant or of any one through whom bis right accrued. 18 F/c/. 124, »,2. Con. Stat., 58. 2— Relief granted notwWistanding act. In 1862, a person who held a bond for the conyeyance of a tract of land, on which he had erected a steam saw mill and other build- ings at considerable expense, having become involved, made an assignment of his property and effects to certain of his creditors, as tmstees, to work the mill and sell the lumber and apply the proceeds in payment of the owner's debts, &c., and then removed from this Province to the United States, where he remained for some years. The trustees agreed amongst themselves that one of their number should take the sole management of the trust estate into his hands, and he accordingly went into possession, subsequently an execution against the goods of the owner was placed in the sheriff's hands, un- der which he proceeded to a sale of the steam engine set up in the mill, at this sale the managing trustee who was agent only for one of the creditors, attended and became the purchaser of the engine and machinery for his principal at a great undervalue, and removed the same from the mill, and afterwards procured a deed of the property in his own name from the proprietor, which he also transferred to his principal ; in 1855 the assignor filed a bill for an account of the trust property, alleging that his poverty in the mean time had pre- vented him from enforcing his rights. Held, that he was entitled to the relief sought notwithstanding the statute of limitations, (4th W. IV., 0. 1,) and the act relating to dormant equities, (18 Vict. c. 124.) Beckett v. Wragg, 6 Grant, 464. Reversed on appeal and bill dis- missed with costs. 7 Grant, 228. See Post No. 5. 3 — Express trusts not luithin act. Held per cur., that express trusts are not within the statute re- lating to dormant equities. 18 Vic. c. 124. Attorney General v. Grasett, 6 Grant, 485. 4 — Trusts — Trustees— Sufficiency of declaration of, cori' sidered. In the year 1819, his Majesty by letters patent, granted certain lands to trustees for different purposes, amongst the lands so granted was a block of six acres, being a reservation for a hospital for the town of York, upon the trust amongst others to observe such directions, and to consent to and allow such appropriations and dispositions of 176 EQtlTY DIGEST. .1 the said lands, or any of them as the Governor Geneial, Lieut. Gover- nor, or person administrating the Government of the Province, and the Executive Council thereof for the lime being, should from time to time make and order ; pursuant to the purposes for which the said parcels or tracts of land, or any of them had been originally re served ; and also to make such conveyance or conveyances, deed > deeds thereof, or of any part thereof, to such person or persons, and ou such trusts, and to and for such uses as the Governor, &c., should from time to time by order in writing appoint. Held per cur that the trust in this case was not complete, and that by the terms of the grant the executive Government retained the power of divert- ing property so reserved to other objects. Blake, C, dissenting, who was of opinion that the trusts were sufficiently declared, and that a conveyance of a portion of the land so reserved, in compliance with an order in Council to that effect for the benefit of the Church of St. James, in the town of York, and incumbent thereof, was a fraud on the original trusts declared respecting it, and as such ought to be set aside. lb. Affirmed on appeal, 8 Grant, 130. See Post No. 6. 5 — Act applies to express trusts. Held, per curiam, (Spragge, V. C, dissenting,) that the act relat- ing to dormant equities (18 Vic, chapter 124,) applies as well to express trusts as to trusts created by implication of law. Wragg v. Beckett, (in appeal.) 7 Grant, 220. 6 — Trusts. Quaere — whether the Dormant Equities Act, 18 Vic, chapter 125 applies to every case of express trust ; or whether a case of express trust so direct and plain might not arise that the Court would feel authorised to hold that the statute does not extend to it, thouah no exception of express trusts is contained in the act. Atforncy General V. Grasett (in appeal,) 8 Grant, 130. 7 — N'o bar in express trusts. Per Vankoughnet, C. The Dormant Equities Act is not a bar in cases of express trust. Tiffany v. Timp.fon, 9 Grant, 244. See also Taylor's Chancery Orders, page 24. In cases of actual mortgage, that is, where the proviso for redemp- tion appears on the face of the instrument creating the incumbrance the Dormant Equities does not apply, but such cases are to be dealt with under the Uth Clause of the original Chancery Act. Hall v. CoMwell, 6 U. 0. L. J., 141. EQtTlTT DIGEST. m Arner t. McKenny, where tlie three Judges are reported to have decided that notwithstanding the Dormant Equities Act, the Court would grant relief in the case of an equitable title of land which had been 'embraced in a conveyance by mistake^ where the legal title of grantee under such conveyance was not executed before the pass* ing of the Chancery Act, and where the equitable title of the grantor had been asserted by possession after the passing of that act ; and that it was sn actual fraud within the meaning of the exception in theDormuut Equities Act for the grantee under the circumstaBoes to assert his legal title. In Malloch v. Pinley, referred to in same work at the same page, ^Tr. Y. C. Esten is reported to have decided^the first point decided in Armr . McKenny in the same way, in favor of a plaintiff who filed a bill to have an absolute daed made before the passing of the Chan- cery Act declared a mortgage, and for redemption, rnd no absolute title had been asserted till long after the passing r/ that act. The V. C. also expressed his opinion that the decision in HaU v Coldwell applied to the cace, though this point was not determined. See Mortqage— Trusts, DOWER. Of unpatented landsi, 7. Verbal agreement as to, 3. Arrears, 9. Costs, 10. Allowance in lieu of, 11. Payment on account, 11. Sale of tight under n fa, 12. Parties, 1. Equitable estate, 2. Power of sale, 2. Subject of sale in equity, 3. In property agreed to be conveyed, i SaK for taxes, S. Aoatement, 6, Speciflc performance, 6. 1— Parties. When the widow of a mortgagor has joined in a mortgage to bar her dower in favor of the mortgagee, it is not improper to make her a party to the suit to foreclose the mortgage, although the conveyanoo contains no express limitation of the equity of r<^demption to her. Sanderson v, Coiton, 1 Grant, 349. t—In equitable estate — Power of sale. A person equitably entitled to lands (in this case a person who had not paid up his purchase money, or obtained a conveyance) created a mortgage thereon containing a power of sale in default of payment, the power of sale was not exercised until after the death of the mortgagor, afterwards the widow of the mortgagor filed a bill •gainst a purchaser for dower in the mortgaged premises, a demurrer thereto, for want of equity, was allowed j dower attaohing only to such 178 EQUITY DIGEST. 't < y^ ^ -i'#l ^ equitable estates as the husband dies seized of— thf^ sale when made having relation to time of creating the power and thereby overreaching the title to dower, which had in the meantime attached. Smith v. Smith, 3 Qrant, 451. 3-^Subject of sale in equity. A widow's title to dower before assignment, although not trans- ferrable at common law, may be subject of sale and conveyance in eqmty. Rose v. Zimmerman, 3 Grant, 598. 4 — In property agreed to be conveyed. Where a party a&:rees to convey property, he is bound to do so free from dower, or if the wife will not release her dower ; then to convey subject thereto, with an abatement in the purchase money. Kendrew v. Shewan, 4 Qrant, 578. 5 — Sale for.pxxes. A sale of land for taxes under the wild lands assessment act de- stroys the right of the widow of the owner to dower. Tomlinson v. Hill, 5 Grant, 231. 6 — A batement — Specific Pe rformance. Although at law, the right of dower during the life of the Vendor is a nominal incumbrance only, the purchaser has a right in equity to compel its removal, or to have specific performance of the contract with an abatement in the amount of the purchase money, in respect of such incumbrance. Van Norman v. Beaupre, 5 Grant, 599. 7 — Of unpatented lands. A widow is entitled to dower in lands purchased from the crown by her deceased husband, and whereof he died possessed, although no patent issued therefor, and the purchase money had not been oil paid i she is also entitled to one third of the rents and profits for six years before the commencement of suit. Craig v. Tetnpleton, 8 Grant, 483. 8 — Verbal agreement as to. A widow having married again, she and her husband verbally agreed with the devisees that she and her husband should enjoy a certain portion of the estate during her life, in respect of her inter- est therein. Held, that this was binding on all parlies interested, as being an agreement not within the statute of frauds, and the Court restrained a purchaser of a portion of the estate from disturbing the doweress and her husband during her lifetime. Leacn v. Shaw, 8 Grant, 494. ^—Arrears In equity unless her h 517. \0-^Co8ts. In such cai unless she ha l\—Allotvc account. In an adm estate should port approved creditor in or tioned for pa; be made to h be all served plaintiff havir Court grante son, 1 Cham. \2—Sale of A right to of a doweress the land, or c within the m '* a contingen coupled with See Con. teation— j rOBMANOB- See Oon A party I under false ] iasned the ^ amount, wh plainant wh ij,'!i gave initrnotioDB for the oonveyanoes which he subsequently executed. Afterwards a bill was filed by the mortgagor to aet the instrument aside as having been obtained by duress and oppression. The Court under the oircumstances refused the relief sought, but as the conduct of the defendant had been harsh and oppressive, dismissed the bill without costs. Boddy r. Finley. 9 Grant, 162. EASEMENT. 1 — Right to free use of air — 20 years' acquiesence. It is a plain common law right to have the free use of the air in its natural unpolluted state, and an acquiesence in its being polluted for any period short of twenty years will not bar that right. To bar the right within a shorter period, there must be such encouragement or other act by the party afterwards complaining as to make it a fraud on his part to object. Radenhurst v. Coate, 6 Grant 139. 2 — Parol, contract for conveyance of — Costs — Riparian proprietor. A bill was filed by the owner of a mill alleging a verbal agreement with the proprietor of land adjoining, for the right to pen back the water of a stream running through his land, and which was used for driving the mill of the plaintiff, in consideration of which he was to open up a road across his farm for the use and convenience of such land owner ; but no writing was ever drawn up evidencing the agree- ment. The owner of the land subsequently sold and conveyed his estate, and his vendee instituted proceedings against the mill owner for damages by reason of the penning back of the water, which had tiie effect of overflowing a considerable portion of his land. The evi- dence in the cause being positive as to the agreement to permit the penning back of the water, and the road across the farm of the plain- tiff having been used by the proprietor of the land and his vendee, the Court decreed a specific performance of the parol agreement, but under the circumstances without costs. JSicol v. Tackabernj, 10 Grant, 109. 3 — Ripanan proprietor — Grant of— Merger of. The owner of a mill property with the right to use all the water of the stream on which the mill was situate, sold a portion of the land, and, by a separate instrument, bound himself to permit his vendee to use a certain quantity of the water for the purpose of driv- ing machinery to be erected on such portion. The owner of the mill, finding when he oame to work it that the quantity of water which the vendee ^ to impair th easement, re to secure pa were never been, in the direct to B, however, of '< tained title t the owner b( neither the ( water, the es and the who Routledge, Proceedinfj The plain for relief in to elect. M 1 An irr and place of manding anc 2 Cham. Re 2 — Enclon On taking due than thi bill served. Appointm Six Spe See Moi Six Pb EQUITY DIGEST. 181 the vendee withdrew from the stream reduced it to saoh an extent as to impair the effective working of his mill, repurchased the lot and easement, receiving a conveyance thereof and giving back a mortgage to secure part of the purchase money, (these instruments, however, were never registered) and afterwards, the purchase money having been, in the meantime, satisfied, procured his vendee to make a deed direct to B, who had purchased the lot and easement, with notice, however, of all the facts. On a bill filed by a person who had ob- tained title to the mill and premises under a mortgago executed by the owner before the repurchase of the lot and easement ; held, that neither the original owner nor R were entitled to the use of the water, the easement having become extinguished on its repurchase, and the whole water having passed to the mortgagee. Gooderham v. Routledge, 10 Grant, 398. ELECTION. Proceeding at law and in equity. The plaintiff in an interpleader issue at law, having filed his bill for relief in this Court while the interpleader is pending, is not bound to elect. McLean v. Bealy, 1 Cham. Rep., 84. ENDORSEMENT. ' 1 An irregularity in the endorsement on pleadings, of the name and place of abode of the solicitor filing the same, is waived by de- manding and receiving a copy of such pleading. Bennett v. O'Mcara, 2 Cham. Rep., 167. 2 — Endorseraent on bill of amount claimed. On taking the account in foreclosure suits, no more can be found due than the amount claimed by the endorsement on the copy of the bill served. Boyd v, Wilson, 1 Cham. Rep., 258. ENGINEERS. Appointment oj to inspect work before acceptance, SiE Specific Performance, 84. ENLARGING TIME FOR PAYMENT. See Mortgage. W ki Vii ' I .y S'LS. ENROLLING DECREE. Six Pbaotici. 182 V M'^ ' m EQUITY DIGEST. ENTITLING AFFIDAVITS, &o. Affidavits, &o., need not in their entitling distinguish the parties by original and amended hill, it is sufficient to descrihe them as the now parties to the suit. Somerville v. Kerr, 2 Cham. Rep., 154. See County Court (8)— Infancy — Insolvent Act. EQUITABLE ASSETS. Judgment creditor — Principal and surety. H obtained from his debtor an assignment of his books of account, notes, bills, and other evidences of debt, by way of security against the consequence of his becoming a party to notes for the accommo- dation of the debtor, and also a conveyance of real estate from the father of the debtor for the same purpose. Having been compelled to pay a large sum of money by reason of his being a party to such notes H recovered judgment against the debtor and sued out execu- tion thereon, which was the first placed in the hands of the sheriff against the debtor, and the effects of the debtor were afterwards sold under this and other executions subsequently placed in the hands of the sheriff, upon which sale sufficient was realized to pay the execu- tion of H and leave a balance in the hands of the sheriff, and H's claim was accordingly paid, and the books, accounts and other se- curities held by him were delivered up to the debtor, after notice from J, a later judgpient creditor, not to part with them, and the father's land was reconveyed to him. The execution creditor who gave the notice claimed in consequence priority over intermediate execution creditors, and also a right to compel H to make good the amount of his claim in consequences of having parted with the securities. Upon appeal from the Court of Chancery, held, 1st, affirming the decree of the Court below, that a subsequent execution creditor had not any equity to compel the first creditor to recover payment of his claim out of the property held by him in security, so as to leave the goods of the debtor to satisfy, the subsequent executions, nor had he any right to call upon H to assign the lands conveyed to him by the debtor's father, nor was H personally liable to the subsequent execu- tion creditors. He/d, 2nd, reversing the decision of the Court below, (Esten and Spragge, V. C. C, dissenting,) that tho securities in the hands of H, being at that time not seizable under common law process, no right vested in H to transfer them to him, nor was he bound to make good to J any loss sustained by him by reason of bifl refusal to ing'Jn the amongst all SOD, Bart , I marshalling store the see 292. The plaint gave him an was performi any acceptan paid by a sal been assignee money due i amount of tb 2 Where creditor of h mand, notice the debtor di and notice fo claim which Grant, 186. See Inte See Ann Effect of n If an equ upon, the ac will not be i law, and iu( District Mu SiB Ari EQtITT DIGEST. 183 hii refusal to deliver the securities to J ; but that such securities be- ing i,i° ^^^ nature of equitable assets they should be distributed amongst all the creditors, pari ptsu. And per Sir John B. Robin- son, Bart , C. J., that this vris not a case to which the principle of marshalling the assets applied, und that H had a perfect right to re- store the securities to the debtor. Topping v. Joseph, 1 E. & A. R. 292. EQUITABLE ASSIGNMENT, The plaintiff being liable for a debt, as surety for one Parr ; Parr gave him an order for the amount on the government for whom Parr was performing certain work. This order Par countermanded before any acceptance on the part of the government, the debt having been paid by a sale of the plaintiff's property, and Parr's contract having been assigned to Matthews who received from the government the money due upon it. Held, that Matthews was bound to pay the amount of the order. Fooie v. Matthews, 4 Grant, 366. 2 Where a person having a demand against another, gave to a creditor of his own an order on his debetor for a portion of his de- mand, notice of which was duly given to the debtor, but this order the debtor did not accept. Held, notwithstanding, that, the order and notice formed a good equitable assignment of the portion of the claim which it covered. Farquhar v. The City of Toronto, 12 Grant, 186. See Interpleader. EQUITABLE ATTACHMENT. See Anmuitt. EQUITABLE DEFENCE. Effect of raising it at law. If an equitable defence be properly raised at law, and adjudicated upon, the adjudication cannot be reviewed in this Court, but a party will not be so precluded when the defence is not properly raised at law, and judgment therefore passes against it. Craig v. The Gore District Mutual Fire Insurance Company, 10 Grant, 137. Sib Arbitrators. .,) r. I >1I ,1 f 1 5> ■■' 11! '^ mm > - i ' ?i 184 EQUITY DIGEST. EQUITABLE ESTATE. Lien. Where a writ of fieri facias or sequestration is placed in the sheriff's hands, it forms a lien on the defendant's equitable estate from the date of such delivery, and not merely from the date of the plaintiffs filing n bill to enforce the same, Moore v. Cldrke, 11 Grant, 497. Skb Dower. EQUITABLE EXECUTION. Lien. W had an interest in land as vendee, but had made default in paying the purchase money, and otherwise. The plaintiff B and one H had executions in the sheriff's hands on judgments recovered at law, W, H's execution having priority. The plaintiffs B and D (the latter having control of H's execution) severally inquired of the vendor whether, if he purchased at sheriff's sale, the vendor would give him the benefit of the contract, and each had received a favorable answer. The defendant D became the purchaser at a sheriff's sale, at a fair price. Meanwhile the vendor had brought an action of ejectment to put an end to the original contract, and after the sheriff's sale executed a writ of habere facias possessionem, but subsequently accepted D as the assignee of the contract, and re- ceived payment from him of the arrears without objection by B, Two years afterwards B, who had kept alive his execution against W's land, filed a bill against D, claiming that he, B, was entitled to a lien on the interest acquired by D in the land, under his agreement with the vendor. Bill dismissed with costs, Bumham v. Dennis, torn, 11 Grant, 490. See Vendor and Purchaser. EQUITABLE INHERITANCE See Wife. EQUITABLE INTEREST IN LANDS. Aasignimnt of. A person equitably interested in land under an agreement for purchase, agreed to convey portiong thereof to a purohaMr for value, and lubsequi duly register plete the pui veyed to the and the othei by waived th held the land McQuestien Bt depoilt of tltl« Skle, i. I— By depo Where a m the borrower times forrei lender to tr that the mem ority over a s not being in ance affecting 2^8ale. A subsequ terms, where title deeds, ai bee, 12 Gran Z—Regiatn A memora equitable moi the meaning registration, mortgage be: mour, 1 U. ( Semble. eoutory cont Where uj upon an exe Z fiQUltT DiGESt. 186 and lubiequently a judgment was recovered against him whioh wm duly regiatered. Afterwards a party advanced a sum of money to com- plete the purchase; and the owner conveyed to the vendee, who con- veyed to the person advancing the money, for the benefit of himndf and the other purchasers. Held, that the purchasers had not there- by waived their priority over the judgment, and that the judgment held the land subject also to the sum advanced to perfect the title. McQuestieri v Campbell, 8 Orant, 242. .:■,."^i of years. 1: < H thousand years was created by way of mortgage, and substqi utly the interest of the reversioner was sold under an exe- cution against his lands. Upon a bill filed by the mortgagor to re- deem, heldy that the sale by the sheriff did not carry the equity of redemption, and the mortgagor was entitled to redeem. Chis^lm V Sheldon, 1 Grant, 108. 2 — Sale of reversion. Quare. Whether a sale by the sheriff, under a fi fa against lands of the reversion, after a term 3f a thousand years, had ut^ been creat- ed by way of mortgage, carries with it a right to redeem the term. . 74. 178. [26th February, 1862, Court of Appeal decided the question in the affirmative. Blake, C, dissentiente. 3 Grant 656.] 3 — Sale by sheriff. Upon a judgment obtained against the executors of a mortgagor a writ against the lands of the testator was sued out under which his interest in the mortgage premises was sold, and afterwards the pur- chaser at sheriff's sale obtained the conveyance of the legal estate from the mortgagee, all of which transactions took place after the passing of the Statute 7 William IV, ch. 2, 1837. He/d, that under such circumstances the devisees of the mortgagor were entitled to redeem. Watloti v. Bernard, 2 Grant, 344. 4 — Purclutse of reversion. Held, by Esten and Spragge, V. C. C, that the purchaser at sher- iff's sale of a leversion in land mortgaged for a term of years is entitled to redeem the mortgage for his own benefit. Waters v. Shade, 2 Grant, 447. h I 10 EQUITY DIGEST. 187 The Court of Appeal in a case of Chisholm v. Sheldon, decided, 26 Feb., 1852, approved of this decision. 5 — Purchase of. The purchaser of an equity of redemption, subject to a charge which is his own proper debt, or which he is under any contract, express or implied to discharge, cannot keep such charge alive as against a mesne incumbrance which, by the terms of the contract of purchase, express or implied, the purchaser was alio bound to discharge. Blake v, Beaty, 5 Grant, 359. Q—PiircJiOser of. Irrespective of the form of the contract between the parties, the rule is clear that the purchaser of un equity of redemption is bound as between himself and his assignor to pay oif the incumbrances. Thompson t\ Wilkes, 5 Grant, 594. 7 Where land subject to a mortgage is sold by the sheriff under statute 12 Vict. ch. 73., the purchaser acquires only the title of the mortgagor at the time the writ was delivered to the sheriff, not such IS he had at the time of registering the judgment. Pegg v, Mttcalf, 5 Grant, 628. 8 — Judgment creditors piirchasimj. A judgment creditor purchasing an equity of redemption at sher- iff's sale, cannot set up his registered judgment against a mortgage upon the premises made before the delivery of the writ to the sheriff. lb. 9— Strangers purchasing. And quaere, whether a stranger purchasing the premises would not be bound to pay off judgments as well as mortgage debts, as forming together a portion of the price of the land purchased. lb. 10— Sale by sheriff of. The provision of the statute 12 Vic, c. 73, making equities of re- demption saleable under legal nroco-^s, do not apply when the mort- gage is q^pated by a deed absoiute in form. McCabe v Thompson, 6 Grant, 1^5. 11 — Purchase of. Where a mortgagee of lands buys up the equity of redemption, taking the conveyance to himself, his charge will merge or not, ac- cording to what may appear to havo been the but^ain between the parties to the transaction at the time of his obtaining the transfer, Finlayspn v. Milk 11 Grftp^, 218. _. 'Hi' TrA^. : 1 r i ■'■■ ■ f /' • ^ c I 'I! ^l ■.•'« :;4 ml M ■ . } lA: ! (. . -I-.-.. i3' y I 1S8 EQUITT DIGEST. « '4' 1-2 — Making peraone interested in the equity of redemp. tion parties i/n the master's office. An order to make persons interested in the equity of redemption of mortgaged property parties to the suit in the master's c S je will not be granted ez parte, notice should be served on the owners of the equity of redemption already before the Court, but not on those pro< poeed to be added. Penner v. Canniff. Simpson v. Duggan, Grdnl v. Patterson, 1 Cham. Rep., 351. 13 An order to make a person interested in the equity of redemp- tion of mortgaged property a party in master's office is obtainable by the plaintiff ex parte. Cummins v. Harrison, 1 Cham. Rep., 369. 14 — Order of foreclosure — Setting aside. Where a purchaser of the equity of redemption paid amount found due to plaintiff, it was held that this was a payment by defendant, or some one on his account, and the final order of foreclosure set aside. Reid V. Cooper, 1 Cham. Rep. 15 — Sale of, under execution agai/nst eaxcutor — Mortgagor. Held, in accordance with the decision of the Court of Appeals in the Bank of Upper Canada v. Brough, reported in the Upper Canada appeal reports, yol. 2, p. 95, that an equity of redemption in lands is not saleable under an execution issued against the executor of the mortgagor. Lowell v. Bank of Upper Canada, 10 Grant, 57. Sn MOBTOAOE. BRROR AND APPEAL (COURT OF). See Con. Stat. U. C, c. 13, p. 62, et seq. Sn Appeal. ESPLANADE ACTS. I'^jwnction. Under; the statute, 16 Vic, c. 219, and 20 Vic, o. 80, authorising the oonstruction of the esplanade in front of the city of Toronto, the city snryeyor is not authorised to set any value upon the strips of lands given to the owners of water lots, his duty being merely to es- timate the value of the work done by the eityan filling in the esplan- ade ; nor have the oity any right to obtain an arbitration in order to eBtaUish a olaim to compensation for such strips, unless the owner of the water lot shall have given notice under the statute that be is dis- satisfied witli esplanade pu fwito, 12 Gri See Speo Adminion of, 34. Admiaslon by W AdmiMlbUlty of. Agreement parol Ml »mended wh Competency ol m Confllcttotr, 26. ConTenatlons, 1. Ddenduit when co-defendant Denial in an «ds\ Huaband, 80. l—Converi Where a evidence wat distinctly pi those conver larly mentic particular c( terson, 1 Gri ^—Letters. Letters ai iog them, tl t. BouHon, 3— ildmw The adm tcrested wit the latter Grant, 539 4— Paroi Where a for redemp ties so deal ferrable to debt, orini (breed in e t. Bamha EQtTITT DIGEST. 189 ntisfied with the price allowed for the portion of the lot taken for esplanade purposes. Moteat v. The Corporation of the City of To- ronto, 12 Orant, 267. ESTOPPEL. Seb Speoiiio Performance. EVIDENCE. Admission of, 34. Admission by parties, 3. Admissibility of, 23. Agreement parol, 4. ^ amended where, 38. Competency of witness, 19. Conflictinsr, 20. Conreisatlons, 1. Defendant when competent witness for co-defendant, 22. Denial in an answer, 18. Husband, 80. Inadmissable, 0. InsufSciency, objection for, 20. Legatee of, 32. Letters, 2. Master's office, in, 25, 27. Parol from, 6 to 17. Practice, as to, 34. Secondary evidence, 29. Subject to objection, 31. Wife of, 24. Where bill amended, 85. Excluding, 33. \— Conversations. Where a party charged a defendant with notice of his title and evidence was adduced of several conversations in which notice was distinctly proved to have been given to the defendant. Held, that those conversations were admissable in evidence, although not particu- larly mentioned in the bill as the fact of notice, and not any particular conversation was the point in issue. Bamharl v. Pat- terson, 1 Grant, 459. 2 — Letters. Letters are admissable as evidence of the case of the party produc- ing them, though they are not mentioned in the pleadings. Wilmotl V. Boulton, 1 Grant, 479. 3 — Ad/mission by partners. The admissions of one partner, that a third person was jointly in- terested with himself and his co-partners, are not evidence against the latter to prove such joint interest. Carfre v. Vanhuskirk, 1 Grant, 539. ^Parol agreement. Where an absolute conveyance is executed with a parol agreement for redemption, and the grantor continues in possession, if the par- ties so deal with one another as to render such possession clearly re- ferrable to the parol agreement, as by demand and payment of the debt, or interest, or some part thereof, such parol agreement will be en- fbroed in equity. Letarge v. Tuyle, 1 Grant, 227 ; and Greenthields V. Bamhart in appeal, 3 Grant, 1. ■■\m '■■"•:■*}. --'r '. I.'*; 5 ;*■•< :1 ,'.■.,1 190 EQUITY DIGEST. 5 — Parol evidence — Where admitted. Semhle. The ciroumstances of a grantor continuing for years in possession of property after execution of an absolute conveyance is alone sufficient to let in parol evidence of the parol agreement for re- demption — in pursuance of which such continued possession took place. lb. 6 Semhle, also. Where, if it is clear from written evidence that the agreement really made between the parties to a deed is not that sta- ted in the deed, but the written evidence does not shew what the actual agreement was, parol evidence of it Is admissable. lb. 7 Wher j a party made an assignment of his interest by way of security, which on the face of it purported to be absolute, and remain- ed in possession from the time of the execution of the assignment till the time of the hearing, parol evidence was admitted to shew what the real nature of the transaction was. Barnhart v, Patterson, 1 8 — Where inadr/iiasable. Where an absolute deed of real estate had been executed, and the grantor, by his bill, alleged that the deed so executed was intended as a security only, and that it had been verbally agreed to execute a defeazance at some future time, but it did no appear that any acts of the grantee were inconsistent with the supposition that the convey- ance was intended to be absolute, and not by way of security, parol evidence of the alleged agreement was held inadmissable. Hoicland V. Steieart, 2 Grant, 61. 9 — Where admitted. Where a party being in close custody at the suit of another agreed to execute a conveyance to him as a security for the amount of his debt and costs, and executed an assignment accordingly in pursuance of that agreement, but the instrument as drawn up, and executed, was deemed in point of lee;al effect to operate as an absolute assign- ment of his interest in the estate, giving the assignor a right of repurchase, and after the day of payment had elapsed, this deed was set up as a bar to the party's right to redeem, parol evidence was admitted to shew the real nature of the transaction, on the ground of fraud. Stewart v. Horton, 2 Grant, 45. 10 — Where admitted. Where a sheriff's sale of certain lands was about to take place, and the plaintiff who was the ownei, agreed with the defendant that the latter should buy the property at the sale for the former^ pay for it out of his (the d< repay him, at one-fiftb or oi md the plain under the agi perty ; » sld, t the agreemen ll.^Where In those oi legal operatio evidence if it Re Broum, 2 12— Where In a suit I of C, parol e had agreed difference of the arrangen C by B, as a A in goods, | £74 12s 6d amount to A pairs of the ] which indica erty. Held, McNab, 2 G l2—Doctr Where a instrument no change o: gagor contii not such a ] from the i (Esten V. 14 The ed of. lb. The doci of mortgag See also -rrm EQUITY DIGEST. 191 of his (tihe defendant's) own funds, and give the plaintiff two years to repay him, and it appeared that the property was then sold for a out one-fifth or one-eighth of its value to the defendant, who paid fur it, and the plaintiff was allowed to remain in possession for two years under the agreement and to make valuable improvements on the pro- perty ; / sid, that in such a case, parol evidence was admissible to prove the agreement. Papineau v. Gurd, 2 Grant, 512. 11 — Where no effect given to it In those cases in which parol evidence is admissable to control the legal operations of a deed, no effect can be given to such parol evidence if it is contradictory, or its accuracy is involved in doubt. Re Brown, 2 Grant, 590. 12 — Where admitted. In a suit by the representatives of B against the representatives of 0, parol evidence was offered which dearly proved that A and B had agreed to exchange properties, B paying A £74 l2s 6d, for difference of value, that B had conveyed his property to A, and after the arrangement was completed, A's property had been conveyed to G by B, as a security for the £74 12s 6d, which C undertook to pay A in goods, and it appeared from C's book that he had chained the £74 12s 6d to B, and credited, and afterwards satisfied the same amount to A, and credited the rents to B, and charged him with re- pairs of the premises, and letters written by C were also in proof, which indicated the existence of some agreement respecting the prop- erty. Held, that the parol evidence was admissable. Willard v. McNab, 2 Grant, 601. 13 — Doctrine discussed. Where a party made an assignment by way of mortgage, but the instrument creating the incumbrance pui'ported to be absolute, and no change of the possession ever took place, the tenant of the mort- gagor continuing to hold possession. Held per curiam, that this was not such a possession by the mortgagor as would affect a purchaser from the mortgagee with notice of the interest of the mortgagor (Esten V. G., dissentieute.) Greenahelds v. Barnharl, 3 Grant, 1, 14 The doctrine in LaTarge v DeTuyle, Grant, 1, 227, approv- ed of . lb. The doctrine of the admissability of parol evidence on the question of mortgage or no mortgage considered. Ih. See also LeTarge v. Tuyle, 3 Grant, 369, t.\i,'> ■ i'.f ^i. A w m . > 'M ■':J:h mm 192 EQUITY DiaSST. 15. Whether a deed absolute on the face, nothing more being shewn, parol evidence will be admitted to shew the conveyance wu intended to operate as a security only. (^Queere.) lb. 16 — What sufficient to admit. Upon the question whether a deed absolute in its terms was really intended as a security merely, an unsigned memorandum of the transaction made at the time for the use of the parties by the attor- ney's clerk, who drew up the deed for them, was held sufficient to let in parol evidence. Holmss v, Matthewst 3 Qrant, 379. Parol evidence does not become admissable in this class of cases because of a note in writing sufficient to take the case out of the statute of frauds, but because of the existence of some fact which evinces the real intention o! the parties to have been di£ferent from that expressed in the deed. lb, 17. Where an absolute deed appeared from parol evidence (whieh under the circumstances was admissable,) to have been intended as a security only, and the defendant, the devisee, and executrix of the grantee swore that she believed the equity of redemption, if any, was put an end to by a subsequent parol agreement between the parties, casual conversations by the mortgagor with third parties from which such an agreement was attempted to be inferred, were held insuffici- ent proof of it, though it was said that the mortgagor had claimed no interest in the property from the time of the alleged agreement until after the death of the mortgagee — a period of about ten years. lb. 18 — Denial in an answer. The rule that a distinct denial in an answer of statements made in the bill must be contradicted by two witnesses, or by one witness, corroborated by attendant circumstances, considered and acted upon, Boulton V. Robinson, 4 Grant, 109. 19 — Comvpetency of witness. A vendor in consequence of disputes arising between him and his vendee, sold the same property to another purchaser, who had notice of the original contract. In a suit by the first purchaser against the vendor and the second vendee for the specific performance of the con> tract, the vendor was offered as a witness on behalf of the other de- fendant. Held, that he was not a competent witness under the circumstances, although he had parted with all interest in the prop* erty. McDonald v, Jarvis, 5 Qrant, 668- 20— 0?{;er'8 agbut of the existence of the bond, they not being part of the res gesta. Clarke v. Little, 5 Qrant, 363. EQUITY DIGEST. 195 30^0/ kiiaband. A hosband is not a competent witness for his wife in a suit res* paoting her separate estate, though he may have no interest therdn. Undiay v. The Bank of Montreal, 13 Grant, 63. 31 — Taken mbject to objection as to competency. Where at the hearing the competency of a witness was objected to and the Court received the evidence subject to the objection, but afterwards held the witness incompetent. A reference was directed as to the material points to which his evidence applied, and further di. reotions were reserved. lb. Z%—Ofa legatee. In a suit against parties namnd as executors in a will, seeking to make them responsible as such, notwithstanding their renunciation of the executorship, a legatee under the will is not a competent wil- ness to establish the liability of the defendants. Vannatto v. MUchellf 18 Orant, 665. 33 — Excluding. Where a party to a suit examines a witness at the hearings the party calling him cannot afterwards exclude his testimony from the consideration of the Court. VannaUo v. Mitchell, 13 Grant, 665. 34 — Admission of evidence. The Court will not refuse to admit evidence recently discovered^ even after a cause has been set down for hearing on a petition of re- view. Where a cause is against the representatives of a deoeased trustee who had been defendant, the Court in its discretion will ex* ercise a greater d^ree of indulgence in the reception of new evidence than if the original defendant himself, who should have known all the circumstances, was alive. Small v. Ecdes, 2 Cham. Bep,, 97t 35 — Where bill amended. The defendant by his answer set up a compromise and settlement of the plaintiff's claim, and proved the same at the hearing, where* upon the plaintiff asked liberty to amend for the purpose of impeach- ing this settlement. The Court granted the leave on payment of costs, but without the right to use again the evidence which had been taken in the cause. Mclntyre v. Cameron, 13 Grant, 475. See Taylor's Orders as to act respecting, 263 ; who may give, 264 ; certified copies when, 265; of wills, 265 ; in foreign oonntries, 266, 267 ; upon petitions substituted for <;ertaiq bills, 65, 66 j at hearing -'. J 19^ EQUITT DIGEST. h I in foreoloBura suits, 111 ; at hearing, to be entered by regiatrar, 170; what to be used, 90, 220 ; effect of nsbg part of, 98 ; rnles as to read- ing and reception of, 170 ; on nffidavits by consent, 93 ; on motiooib petitions and interlocutory proceedings, 131 ; seryice on solicitor need not be verified, 131 ; affidavits must be filed, 131 ; when notice of read- ing given, cannot be withdrawn, 131 ; when originals to be used, 131 ; when office copies to be furnished, 132 ; when defendant appeared after decree nisi, 78; by affidavit of certain facts, 93; of scientific personi 113 ; books of account prima facie, 116, 137 ; to have guardian ap> pointed, 185 ; order to produce, 90, 175. S«E Administration Order— -Adminibtbation Suit— Ali- mony —Award — MoRTaAOE — Parol Evidence — Produotion Of Documents— Praotiob— -Witness. EXAMINATION. 1 — De bene ^sse. The Court ordered a commission for the examination of an aged witness to issue without requiring the bill to be served in the first instance ; the object of the suit being to perpetuate testimony, and it having been sworn that there was danger of the testimony being lost, but directed notice of the execution of the commission to be served on the defendants. Hunt v. Prentiss, 4 Orant, 487. 2, An order to examine a witness de bene esse on the ground of illness will not be granted ex parte unless the illness is dangerous ; if there is no immediate danger notim should be given. Anderson v. Anderson, 1 Oham. Rep., 291. 3. An application was made by the plaintiff on notice, supported by his own affidavit, to examine a witness de bene esse who was about to go abroad, the case had been heard but no judgment pro- nounced, the plaintiff prosuming the decree would be in* his favor proposed to examine the witness with a view of using his evidence in the master's office in taking the accounts. The affidavit shewed that the witness was going abroad, that the plaintiff could not prevent him ; and that he was the only person within the jurisdiction who could give testimony in regard to the matters in which it was pro- posed to examine him, and also stated the grounds for the pUintiff's so oonadering him. The motion was unopposed. Esten, V. C, made the order on the ground that although such orders are only granted where it is shown that the evidence is to be used for some defisiie purpose, yet tbftt the Court will make such an order where it oonndflH tt fliow R' JB* 4. Anapi de bene eue o )bdd,315;I Beav.,188; I fere referred eioone. V. 2 Oham. Bep 8. Anapp that he is abo notice must b Practice as See Taylor of witness, 18 oat of jurisdi< 190 ; who mi tioD to prepa DMsestobe hearing to foil reeaUed, 192; person, 192 ; pone, 175 ; 133 ; notice < 163,164; oi See Prao The plaint natiouiandh oross^xamini unade in the i Sii Dim EZAMI] Taxation t A solicito elieikt, and i J it').. EQUITT DIGEST. m it oOBiiclin that pnotice nqairM it. Whitehead v. Bt^alo 4* Lake fUmR* R. Co.f 5 U. 0. L. J., 232; 4. An application was made for an order to examine a witness de bene esse on account of ill health, and Tomkins v. Harrison, 6 Midd, 815 ; Hope ▼. Hope, 3 Beav., 317 ; McKinnon v. Everitt, 2 Bmt., 188 ; Bellany v. Jones, 8 Yes., 31 and Ayokhoume's Prac. 165 vere referred to as showing that such an order would be made as of eoone, V. 0. Spragge granted the order ex parte. Oliver t>. Dic!:ey, 2 Cham. Rep., 87. 5. An application to examine a witness de bene esse on the ground that he is about to leave the jurisdiction will not be granted ex parte, ncitloe must be served. Early v. McGill, 1 Cham. Bep., 257. Pradice as to. See Taylor's orders as to, before examiner, 186 ; out of term, 188 ; of witness, 189 ; where to be held, 189, 220 ; may be changed, 190 *, oat of jurisdiction, 11, 190; terms, 190, 220; after issue joined, 190; who may set down for, 191 ; how to set down, 191; registrar tion to prepare list, 191 ; notice of, to be served, 191 ; all wit- nesses to be examined, 191 ; transmission of papers on, 168, 220 ; hearing to follow, 220 ; power of judge at, 192 ; witnesses may be reealled, 192 ; no articles to discredit, 192 ; despositions to be in first person, 192 ; Court may order, 192, 193 ; deputy master may post- pone, 175 ; or judge in chambers, 113 ; cross on affidavits, 94, 95, 133 ; notice of, 134, 135 ; of parties, 95, 96, 97, 216 ; rules on, 96, 163, 164 ; of infant under 12 Vic, 124. 8» Practice. EXAMINATION OF DEPENDANT. The plaintiff has a right to examine the defendant at the exami nation, and hearing of the case, although the plaintiff may have already cross-examined him on his answer, and in an affidavit which he has made in the cause. Thompson v. Hind, 1 Cham. Rep., 347. Sib DiiiUBBSH— Garnishee Order— Practice. EXAMINATION OF CLIENT (AS TO DEBTS, &c.) Taxation of costs, A solicitor whose costs have been taxed on the application of the dient, and not paid a jS /a having been returned nulla bona is entitled • ,55 ■''■* fknt. lAtnmn v. Jermyn, 9 Grant, 160. 17 — Duties avd responsibilities of trustees and exectUo't's. The duties and responsibilities of trustees and executors consider- ed and acted on. Larkin v. Armstrong, 9 Grant, 390. 18 — Injimction — Becciver — Insolvency. As a general rule an assignment fbr the benefit of creditors will be taken as a declaration of insolvency, and equivalent to bankruptoy in England. Where, therefore, some of the legatees of a testator filed a bill against his executor and two of the legatees, charging m^d- qinistration, and alleging that the executors, subsequently to the death of the testa^r* ba4 iPftde an assignment for the benefit of his ereditan, and that hp was insolvent. The Court, upon the motion for an injuntion and ^epeiver, before answer, under the circumstances, ^a|i|f4 ^ intonm injunct)ipD apd reoeiysr, notwithstanding the ex- Mttter denied iwey was tho 19— (7ofl<». Where execi rfm estate by ttalowratoo sdeeiee. A.9 Costs given MniBSk exeoat< Ois appearing 20— iliioimi A retaining ministration si nssonable dial 21— Duties c Where exec mUMgement o leeoant for the tenstees, in su nsdy at all tin 22— Ccmmw Five |«r p( •.m baads of execi i |8 ormaybetoo '^ snexeoutorbc agent, and wh '^—InteretX Although tl moneys lost \ interest on th( 24— £1^6^ P having a after paymen raffieient to i ihoold be tnt invested fore (Ke ibonld \ 'Wt-- EQUItT DIGEST. 205 £.7 eetiter denied nsy maiadministration of the estate, or that his imiol- inej wai tho reaion for his making the assignment of hii estate. Bgmldv, Wallis, 9 Grant, 443. 19--C08t8. Where exeontors had improperly dealt with a portion of the funds of sQ estate by allowing one of their number to retain it in his hands «t a low rate of interest, the Court refused them their costs prior to I decree. Ashhough v. Aahbough, 10 Grant, 433. Costs given to » plaintiff, notwithstanding fraud was charc^ ^pdMt executors, which was not establuhed, under the circumstan- Mi tppearing in the judgment. lb. 210— Allowance to. A retaining fee paid by the executors to their solicitor in an ad- ministration suit may under certain circumstances be a perfectly reuonable disbursement. Chiiholm v. Barnard, 10 Grant, 479 %l— Duties of. Where executors without any authority assumed to act in the mkoagement of the real estate of their testator, they were made to aeeoant for their aete as if they had been duly empowered to act as tnutees, in such a ease it is their duty to keep accounts and be ratdy at all times to explain their dealings with the estate . lb. ii—Go'nfmiisaion — Allotuance to. Five |ier per cent commission on moneys passing through the bads of executors may or may not be an adequate compensation or may ba too much according to circumstances ; but in no case will sn exeotttor be entitled to an allowance for services performed by an •gent, and whioh were so performed by him gratuitously. lb. 2^Intere»t. Although the Court will order executors or trustees to make good moneys lost by neigleot or default, it will not also charge them with interest on those sums. Vanston v. Thompson, 10 Grant, 642. U—SdJie by, to legatees. P hating an estate estimated at £60,000, by will provided that ifter payment of the debts, and certain pecuniary legacies a sum Boffieient to secure an annuity of £500 per annum during her life ihonld be invested for the use of the widow, that £5000 should be ittTtstedfor eaohofhis four daughters, and that the residuary es- Mte should be divided equally among the testator's three soi^s, J P w I i 11 f -i ^ '; 5« 206 EQUITY DIGEST. and W, when W, the youngest should attain majority, and in em the yalne of the estate should not prove sufficient : after providiig for the widow's annuity and the daughters portions, to prodiie £7000 for each of the sons, then a ratable reduction should be madi firom the share of each child. The testator also directed that tfUr the decease of his wife the sum set apart for securing her annuity should be equally divided amongst his children. The testator 1^ his will provided that in case his sons desired to. continue his bni- iness, that his executors should afford them facilities for so doing and should sell to them at a fair valuation, the store and stock in trade. Stock being taken at the time of the tastator's death, tk goods in hand were in accordance with his custom, valued by adding 75 per cent, to their sterling price, at the sum of £13,990. The sons J and P having agreed to continue their father's business, were charged in the books of account with that sum. The estate proved, to be of only half the value at which it was estimated at testator's death, so that there was insufficient, without taking into account the value of the stock, to realize the widow's annuity, and the portions for his daughters. The sum at which the stock had been valued was prov- ed to be about twice its actual value, and evidence was adduced, prov- ing that no actual consent or agreement had been given by J and P (o be charged with it as its estimated value. Held, that there had been no absolute sale of stock to them, and that they were only cbarg- able with it at its actual value ; that the sum required to be set apart to raise the annuity for the widow was such a suin as being in- vested at six per cent per annum, the legal rate at the time of the testator's death would produce £600 per annum, and that the prin> oipal sum was, under the above provision distributable on the death of the widow, among the testator's children. Palerson v. McMatUr 11 Grant, 337. 25 — Retaining unoney unemployed. Where an executor had retained money in his hands unemployed, for which on passing his accounts he was charged with interest and rests. Held, notwithstanding, that having reference to. the condition of the estate and the facts of the case, he should be allowed his oom- mission and costs of the suit. Gould v. Burritt, 11 Grant, 523. 2Q— Purchasing trust estate. Although the rule is that an executor or trustee is not permitted to deal on bis own account with tbe trust estate, still where one of two executors empowered to sell with the concurrence of the widow iti EQUITY DIGE$T. 207 t',6 i*- '' .... :■■■■ 4 ind the ddert son of the testator, aged 18 or 19 yean, pnrohased pirt of the testator's property, the Oourt refused to set aside the tnanotion, the master having found that at the time the sale was eoBoladed it was beneficial to the infants. McNighl v. McNighty 12 Grant, 363. i^Security on aaaets of estate. Where advances were made by way of loan to the managing ex- eentor of an estate as such, and subsequently security was taken therefor from him on part of the assets of the estate, such advances being made, and security taken in good faith on the part of the len- der, and it appeared that some of the advances were duly entered in the books of the estate, and the name of the lender (who had no other transactions with the estate) appeared as a creditor in several unnal balance sheets sent to the other executors by their agent, and DO objection on their part was ever made. The Oourt refused at the instance of such executors to order the securities to be delivered back to them without payment of such advances. Ewart v Gordon, 13 Grant, 40. 28— ITrustegs. Where the same persons are executorS; and trustees under will, they do not lose their powers as such executors, and become mere tnutees, when all the testator's known debts are paid, or by mere Iipeeoftune. lb. 3!^— Payment to one of several of mortgage mrniey after as- signment of inortgage to them. Five executors and trustees took an assignment of a mortgage to MTO of their number, described therein as executors, and trustees un- der the will of the testator, the assignment containing no further reference to the will, The agent for the five thereupon gave notice to the mortgagor, that the assignment had been made to the exeou- tors, and it did not appear that the mortgagor had any other notice of the assignment. Held, that he was justified in assuming that the aBsignment was made to the executors as such, and payments to on« of them made bona fide were held valid. Ewart v. Dryden, 13 Grant| 60. . 30— FiW, devisees in trust. Devisees in trust, for sale of real estate, must jointly receive or unite in receipt for the purchase money, unless the will provides otherwise, and the case is not affSMted by the property being cbaiged f- M '■I L i fi i ; :■■ \:m ?"■■, \m EQUITY DIGEST. V- r il id\i: nt* ing,) under the circumstances declared the judgment* and execution f^ndolent an< dtnts to pay i Proof of sei under the san ihall be paid i See Injui See Plea See Taylor quarterly reti tain, 7 ; on fi! for causes, 1{ See Costi The signal by him that 1 Cham. Re( l—Simultc A judgme the hands of lands, and tl goods, and tl withdrawn ; for creditors, to restrain a the cause. ^e—Againa A judgme hands of the lands, the sh the writs agi 'm EQUITY DIGEST. 211 frtndal (Uats to pay the costs of the suit. Douglass v. IVard, 11 Grant, 39. Proof of services rendered by relations to one another, while living under the same roof does not imply a contract that such services ahaU be paid for. lb. FELLING TIMBER. See Injunction.— MottTOAOE. FEMME COVERT. See Pleadimq. FEES. See Taylor's Orders, master and registrar not to take, 4 ; to make quarterly returns of, 5 ; local masters and deputy registrars may re- tain, 7 ; on filing, 33 ; counsel, 18J ; sheriff's, 201 ; on setting down, foroanses, 199, 220. See Costs.— Filing Papers. FIAT ON PETITION. The signature by a Judge to a fiat on a petition is not an affirmation by him that the case is a proper ono for petition. Arnold v. Hurd, 1 Cham. Rep., 246. FIERI FACIAS. 1 — Simultaneous ivrits ofji.fa. against gooda and lands. A judgment creditor had issued at the same time and placed in the hands of the sheriff alias^. fas. a<;ainst goods, and^./a«. against lands, and the sheriff by direction of the creditor made a seizure of goods, and the writs against goods were afterwards, and before sale, withdrawn ; meanwhile the debtor hn^l conveyed his lands in trust for creditors, an injunction was granted at the instance of the grantee to restrain a sale under the writs against lands until the hearing of the cause. Paton v. The Ontario Bank. 12 Grant, 366. 2— Against goods and lands. A judgment creditor had issued at the same time and placed in the hands of the sheriff alias Ji. fas. against goods, and Ji. fas. against lands, the sheriff by direction of the creditor made a seizure of goods ; the writs against goods were afterwards, and before sale thereunder. m &>. r lil' h. -.1 212 EQUITY DIGEST. f. f i > ">5^ ll :'l . '■.■ '.' i. ■' , ' '!■'} ;|. r . i; 1 •' iff ~*i ■V| 1 <■' ' \' if .'.V ':''l. ■i."v ''■■"■'". ■' withdrawn ; but meanwhile the debtor had conveyed his trust in land for creditors. Held, that the grantee was entitled in equity to ra. train a sale under the /J. fax. against lands. Paion v. The Ontario Bank, 13 Grant, 107. 3 — Setting aside. Where a rule for setticg aside afi fa. .-igaiust lands was diseharged at law under a njaterial error as to the llicts. Held, no bar to relief in equity at the suit of the debto> ',s grantee of the lands. lb. 4 — TiTae for re n e wing. Where shortly before the return day of a Ji. fa. against lands, the plaintiff therein obtained it from the sheriff for the purpose of renew- ing the writ and did not return it for fifteen days, when a year from the test had expired. Held, that these circumstances did not amount to an abandonment of the plaintiff's rights under the execution. Me- neillif V. McKenzie, 3 B. & A. R., 209. 5 — Filing papers — Payment of fees. An appeal bond and the athdavit of execution thereof arc separate documents, and must be stamped as such when filed. The recent act respecting law stamps has made no alterations in the practice of the Court as to the mode of computing the proper amount of fees. Macbeth v. Smart, I Cham. Rep,, 269. FINAL ORDER. Notice, 14, 16. New account, without, 2. Plaintiff in poRseMion, 11. Report not conflnned, 6. Sale for. Settings aside, 18. Occupation rents, 21. Affidavit in support, 4, 7, 8, 12, 13, 14. Affidavit by agent, 9, 16. Affidavit of officer of a company, 10. Certificate of banl< manager, 10, 16. Delay in moving, 17. De'-,very of possession, 1. For foreclosure, 19. Master's report undated, 3. 1 — Delivery of possession. The Court after the final order for foreclosure had been made and acted on by the plaintiff, granted an order for the delivering up of possession of the mortgaged premises, although not asked for on the final order being obtained. Lazier v. Ranney, 6 Grant, 323. 2 — Without nevj account. After the day appointed for payment of the amount due in a suit to foreclose a mortgage security, the plaintiff entered into possession of the mortgaged premises. Held, that the plaintiff was entitled to a final decree of foreclosure, without a new account being taken. Greenshields v. Blackwood, 1 Chnm. Rep., 60. ^Masters Where the money on a d »nd the decre ed for paymei 4— F/wi al On an appl the plaintiff the receipt of ell, 1 Cham. 5~~CertiJic( The manag be paid shoul well as on or Bep..201. Q— Report Where the of mortgage i for payment, 1 Cham Rep 7—AffiMv Where the diction, and affidavit of n must be shev Shaw, 1 Chi S—Ajffidav Where co- the affidavit foreclosure i Cham. ^cp. ^—Aflidai On an ap vit of non-p: the plaintiff Powers r. J 10— Affidf On an ap mortgogcd ] EQUITY DIGEST. 213 ^Master's report undated. Where the master's report directing the payment of mortgage money on a day being six months from the date thereof, is not dated, and the decree gives siz calendar months, a new day must be appoint- ed for payment. Scott V. McKeown. I Cham. Rep., 186. ^What afidavit should shew. On an application for a final order of foreclosure, the affidavit of the plaintiff should shew that he has not been in possession, or in the receipt of the rents and profits of the premises. Scoti v. McDon- ett, 1 Cham. Rep , 193. ^^Certijicate of hank manager. The manager of tlie ban!; whore mortgage money is directed to be paid should certify that the money has not been paid before as well as on or since the day appointed. Farrell v. Stokes, 1 Cham. Bep., 201. 6 — Report not confirmed. Where the report appointing the time and place for the payment of mortgage money has not been confirmed before the day appointed for payment, a final order will not be granted. Mountain v. Porter, 1 Cham Rep., 207. 'J— Affidavit in support. Where the plaintiflFin a foreclosure _-it resides out of the juris- diction, and an application is uade for a final order of foreclosure, the affidavit of non-payment being made by an agent of the plaintiff, it must be shewn where the custody of the mortgage has been. Rae v . Shaw, 1 Cham. Rep., 209. 6—AffiAlavit. Where co-mortgagees are made co-plalntiffd in a foreclosure suit the affidavit as to non-payment on which to obtain a final order of foreclosure should be made by all of ihem. Annis v. Wilson, 1 Cham. Tlep., 217. ^—Affidavit hy agent. On an application for a final order for foreclosure where the affida- vit of non-payment of the mortgage money is made by an agent of the plaintiff it should state that he is authorized to receive the money Powers r. Merriman, 1 Cham. Rep., 225. 10 — Affidavit of offijcer of a company. On an application by a company for a final order for the sale of mortgaged property, the affidavit of the officer of the company, as to 'm m 41 m '^1 1 'jHkv;. i-J'- iHfr'' •■' 'v^' wmM.\ ■ ^'A iAM'^- i"; "I ' 214 EQUITY DIGEST. non-payment, should shew that he is the proper officer to receive tli« mortgage money. The Western Insurance Company v. Capreol, 1 Cham. Rep., 227. 11 — Plaintiff in possession. Where on an application for a final order for foreclosure the usnal affidavit of the plaintiff shews that he has been in occupation of the property, it must be referred back to the master to take a new a^ count, set an occupation, rent, and appoint a new day for payment, although the plaintiff in his affidavit swears that he has been in occu- pation merely as caretaker, and has received no rents or profits from the property. Cummer 4* Tomlinson, 1 Cham. Rep., 235. 12 — Affidavit of non-payment. On an application for a final order for foreclosure, where the plain- tiff resides out of the jurisdiction, and the affidavit as to the non-pay- ment of the mortgage money is made by his solicitor, it must be shewn that the plaintiff has no other agent within the jurisdiction authorized to receive the money. Taylor v. Cuthbert, 1 Cham. Rep,, 240. 13 — Affidavit. In applying for a final order for the sale of mortgaged premises it is necessary that the usual affidavit of the plaintiff should negative possession and the recept of rents and profits. Burford v. Lymburn- er, 1 Cham. Rep., 275. 14 — Affidavit must negative 2'>ossession. On an application for a final order for the sale of mortgaged pro- perty, it is not sufficient for the plaintiff in his affidavit of non-pay- ment to swear merely that he has not been in possession, or in receipt of the rents and profits, he must also negative possession, and the re- ceipts of rents and profits, by any one on his behalf. Ford r. Jones, 1 Cham. Kep., 291. 14 — Notice. A motion for a final order for the foreclosure of mortgaged pro- perty is an er parte proceeding, it is unnecessary to serve notice therof, even on infant owners of the equity of redemption who bave answered. Henderson v. Cowan, 1 Cham. Rep., 297. 15 — Agent. Where, on an application for a final order for foreclosure, the usual affidavit of non-payment is made by tho agent of tho plaintiff EQUITY DIGEST. 215 the authority of the agent need not be produced; as to that it is suf- ficient for him to swear that he is the duly authorised agent. Rad- clufe V. Duffy, 1 Cham. Rep., 302. l^—Bank certificate. Mortgage money had been ordered to be paid on the 19th Decem- |)er - default being made, the usual bank certificate was obtained on the 20th December, and on the lOth February following, an application was made for a final order for sale. Held, that the bank certificate of the 20th December was too old for the Court to act upon. Hurd v. Seymour, 1 Chum. Rep., 332. 17 — Delay in moving for — Notice of motion. When a party entitled to a final order of foreclosure neglects to apply until nearly two years have elapsed from the time his right to the order first accrued, the order will not be granted ex parte. Ardagh v. Orchard, 2 U. C. L. J. N. S., 303. li— Setting aside. Where mortgagors had been foreclosed, and the mortgagees had subsequently sold the property, it was held that the mortgagors could not, several years afterwards, move in the suit against the final order of foreclosure on the ground of irregularity, without having made the purchasers or their assignees parties to the suit. Boulton v. The Don and Danforth Road Company. 1 Cham. Rep., 335. Where there were several plaintiffs in a suit, and a final order of foreclosure had been obtained by their solicitor. Held, that their solicitor could not afterwards move on behalf of the defendants fore- closed to set aside the order for foreclosure, though two of the plain- tiffs concurred in the application, and only the third objected. S.C., Cham. Rep., 329. \9— For foreclosure. Where the account is changed in a foreclosure suit after the mas- ter's report, and a notice of credit is given under the order of 29th June, 18G1, such notice should be given before the day appointed for the payment. KnoUinger v. Barber, 1 Cham. Rep., 258. On an application for a final order for foreclosure, the bank certifi- cate of non-payment should be made by the cashier, or other like officer. A certificate of the accountant, as such, is not sufficient. Campbell v. Garrett, 1 Cham. Rep., 255. 20— For sale — Place for payment of money ordered. The order oi 29th June, 1861, directing money ordered to be paid into some bank, does not apply to a suit by a yendor to enforce f M I : ,r /!\ 1 :t "* I 216 Equity dicjest. M )f " : 'I his lien for purchase money. Sawdon v. Heasly, 1 Cham. Rep., 28l. In a suit of this nature in applying for the final order for sale, it is not necessary that the affidavit of the plaintiff as to the non-paj. ment should negative the fact of possession or the receipt of renti and profits, lb. 21 — Occupation rent Where the plaintiff (a mortgagee) is in occupation of (he mort- gaged premises, the master should charge him vrith occupation rent up to the day appointed for payment, so, when it appeared that a mortgagee under such circumstances had been charged with occupa. tion rent only to the date of the master's report, and had since con. tinned in possession, the final order was refused. Pipe v. Sliafer, 1 Cham. Rep., 251. See Delivery op Possessiox, 3 — Foreclosure — Judgment Creditors. — Practice. FIRE POLICY. Seizable under execution. A fire policy after a loss has taken place, and money has become payable thereon, is such a speciality or security for money as is seiz. able under execution, though the amount payable has not been ascer- tained, The Bank of Montreal v. McTavish, 13 Grant, 395. See Insurance, FIXTURES. Object for which put up, the true criterion, 1. Owner estopped against innocent purchaser, 2. Execution creditor clainiiug, 4. Boiler and steam engine attaclied with belts and n\ita, 3. 1 — Object for ivhich put up the true criterion. The intention object and purpose for which articles for the pur- poses of trade or manulacture are put up by the owners of the inher- itance, arc the true criterion by which to determine whether such articles become reality or not, not the mere fastening to the soil. McDonald V. Weeks, 8 Grant, 297. 2 — Owner estopped against innocent purchaser. If the owner of goods or chattels so conduct himself as to enable another who has the possession, but not the property of such goods or chattels, to hold himself out to the world as the real owner, the true owner is estopped from denying the title of an innocent purohuer w-rw, '' .«J;; -?;■■' Nil > tlQUITT DIGEST. 217 for value. The possossioa of property attached to the reality which thereby becomes reality, is a sufficicDt indication of ownership to estop the real owner as against an iunocent purchaser for value, lb. 3 Boiler and steam engire attached with bolts and nuts. A mortgagee filed a bill to restrain the assignees of a mortgagor from removing a steam boiler and engine set up by the latter for the purpose of working planing machinery. The boiler rested on brick work, without any fastenings, tiic engine was firmly attached to the floor with bolts and nuts to make it work steadily ; the machinery propelled by it was all unconnected with the premises. Held, that the boiler and engine were not fixtures. Schrirber v. Malcolm, 8 Grant, 433. ^—Execution creditor claiming. A creditor having execution against lauds, cannot claim fixtures which do not belong to his debtor. Broion v. Sage, U Grant, 239. Vll-^ ■■'mi 4- FLOATING BALANCE. A trader being indebted to a wholesale merchant for goods supplied executed a mortgage in favour of the creditor securing £3,000, and the creditor having entered into a new partnership, the firm continued to make further advances for several years, during which time the debtor made several payments, much more than would have been safficient to pay off his original indebtedness, and the firm in render- iag their accounts to the mortgagor, did not bring in the old debt. Upon appeal from the master's report, it was held that these circum- stances were sufficient to shew that he security was intended to cover a floating balance. Russell v. Davy, 7 Grant^ 13, Ses Mortgage. FORECLOSURE. ▲cco-jnt, S9. Abortive sale, after, 19, 20. Attending to receive inort|rae:e money, 2, 16, 27. Bank, by a, 31. Bulirupt inortra^e, 4. BUI diimlssed v^lthout costs, 33. Bills filed on registered Judgment, 21. Change in state of accounts after day ap- pointed for payment, 25. Coats, 10, 11, 12, 14, 17, 19, 28. Decree on precipe, 24, 34. Delivery up of possession, 30. Disclaimer, 11. Dispensing with service of order appointing new cli, 3 Grant, 163. Note. Since the above case, the act makint; registered judgmenta a lien on lands has been repealed. LiS , •>;> \, EQUITY DIGEST. 219 ^Instalments or interest unpaid. Upon default in pajnient by a mortgagor of any instalment of, or of interest on mortgage money, the mortgagee has a right to call in the whole amount secured by the mortgage. Sparks v. Redhead, 3 Grant, 311. 'j^Sunday. Where the day appointed by the master's report for payment of the mortgage money found due fell upon a Sunday, the Court re- fused to make the final order of foreclosure. Hokomb v. Leach, 3 Grant, 449. S— Infants. Id a foreclosure suit a question was raised as to whether the equity of redemption in the principal portion of the mortgaged prem- ises was in the defendants, against whom the bill had been taken pro confesso, and who did not appear at the hearing, or in the other de- fendants some of whom were infants, the Court refused to decide this question at the hearing, at the instance of the defendants who ap- peared. Robinson v. Dobson, 1 1 Grant, 357, ^—Infants — Parties. Where a mortgagor had conveyed his equity of redemption to the trustees of his marriage settlement, in trust for his wife for life, re- mainder to his children, and a bill of ibrcclosure was filed after his death against the trustees and widow, to which bill, the children being infants were not made parties, the Court granted a decree con- taining the usual references to cnquiro whether a sale or foreclosure would be more beneficial to the iniunts, and gave liberty to the mas- ter to make the infants parties in his office if he should see fit. Dick- son V, Droj/er, 11 Grant, 362. 10— Costs. Where a mortgagor subsequently executed a lease of part of the mortgaged property, and one of the two owners of the lease mort« gaged his interest therein, such mort;zagee was made a party in the master's office to a suit by the original mortgagees foi the foreclosure of their mortgage. Held, on further directions that in case the mortgagor redeemed the plaintiff's mortgage, he was not entitled to claim against his co-defen- dants, or any of them, the costs occasioned by the mortgage of the leasehold. Mc Master v. Danmery, 12 Grant, 193. 220 EQUITY DIGT]ST. jr. i: ^•>i R 11 — Disclaimer — Closes. A person interested in an equity of redemption, informed the mortgagee before suit that he was \villing to release to him his inter- est in the property. The mortgagee notwithstanding, made him a defendant to a bill for sale of the mortgaged premises, and he filed an answer, setting forth his willingness to release, and that bo had before suit informed the plaintiff of sucli willingness. Held, that he was entitled to his costs. Wariiifr r. ILihbs, 12 Grant, 227. 12 — Marriage settlement — fWs. C the holder ot two mortgages created by H, between whom and the niece of C a marriage was about to take place, became a party to the marriage settlement, which embraced amongst otlier property, the lands covered by the mortgages, and subsequently instituted a suit to reform the settlement so as to leave his mortgages unaffected thereby, and also to reform a mortgage made by H, with the assent of C, after the marriage, to one J M, for the benefit of creditors, or to postpone it to his own, and prayed a foreclosure or sale, but did not offer to redeem. After the hearing of the cause the plaintiff paid off this mortgage, and other claims upon the estate, and thereupon filed a petition setting forth these facts, and praying a declaration thafthe was entitled to recover the amounts so paid by him, and the amount due upon his two mortgages, and in default of payment a foreclosure of the mortgaged premises. Held, that all he was entitled to was a foreclosure against H, with the costs of an ordinary foreclosure suit, the plaintiff paying the costs occasioned by the other parts of his bill in which he was unsuccessful, as also the costs of the defendants appearing on the petition, the Court being of opinion that he should in the first instance have drawn up a decree for redemption, and a& ted on it., Qumre. Whether under the circumstances the plaintiff could if objected to even enforce his mortgage against H, or whether the plaintiff is not in the position of a mortgagee who had represented to the wife before marriage, that he held no incumbrance on the settled property, Cornwall r. Henriod, 12 Grant, 338. 13 — Staying proceedings. Where a decree of foreclosure obtained upon a mortgage payable by instalments, has been stayed upon payment of the amount actually due, and a subsequent default occurs, the proper order to make is to direct the whole sum secured to be paid, with liberty to the defend* EQUITY DIGEST. 221 snt to pay tbe sum actually due and stay proceedings thereon. Sirachan v. Devlin, 1 Cham. Rep., 8. 14 — Costs. It is not proper that a mortgagee should create unnecessary ex- pense against the mortgagor, hy executing several powers of attorney Goodhue v. Carter, 1 Cham. Rep., 13. 15— Parties. ^ A mortgagee filed a bill of foreclosure against tbe mortgagor alone, and seven months after the final order of foreclosure had been pronounced the mortgagor moved to set the order aside on the ground that several menso incumbrancers had not been made parties either before decree or in the muster's ofiicc. The application was refused Tfith costs. Cameron v. Lynes, 1 Cham. Rep., 42. 16 — Attending to receive mortf/age money. This was an application on a former day for the final decree of foreclosure, default having been made in payment of the amount foand duo. Tho affidavits showed that the agent of the plaintiff had attended for fifteen minutes of the two hours appointed for payment. Esten, v. C, doubted when the motion was made if the attendance had been sufficient to entitle the plaintiff to the final order, but after taking time to look into the authorities he this day ordered the de- cree as asked to go. Mitchell v. Hayes, 1 Cham. Rep., 56. 17— Costs. Where it is shewn that a mortgagee has for the bona fide purpose of preserving the mortgage premises from destruction and dilapida- tion, instituted proceedings at law to obtain possession of the prop- erty, be will not be deprived of his costs in equity. Dallas v. Goto. 1 Cham. Rep., 65. 18 — Service of warrants. In proceeding under a reference before the master, one of the defendants after being served with the first warrant absconded from the jurisdiction and the subsequent proceedings in the master's office were left at his former place of abode. The Court under the cir- cumstances made the decree for foreclosure absolute for default of payment. While v. Courtney, 1 Cham. Rep., 66. 19 — After abortive sale — Costs. It is unneccessary to present a petition for foreclosure after abor- tive sale, it is sufficient to serve a notice of motion on the mortgagor, S,i ,t' ■'-'■9 I J \ ■' iV » i) -V, ■t.Ht ffW * "l "1 , ' t > 222 EQUITY DIGEST. ,',, t 'S • ^^^■''' - ;V Bi !H|kI ;■;! 'I^^K^r ' ' ■, ! ' ^BBn^K'"-^' ' ^Hss'S^^Hi '^ ^Hq^^SB '' '^- V ■ ( ^^Kh^^K ' '^K'' ^^^^^^^^H . ! ' ' 2i . ;. ' 'i^^B^i' ".'; ■ n|^K|i/ '§£■ i and the extra costs of a petition and service thereof on parties other than the mortgagor will be disallowed. O'Dell v. Doty^ 1 Cham. Bep., 207. 20 — After abortive sale. Where a foreclosure is asked after an abortive sale the mortgagor must first be allowed three months to redeem, Girdlestone v. Gunn 1 Gham. Bep., 212. 21 — Bills fiUd on registered judgraentSy Stat. 21 Vict, ch. 41 — Proceedings in master's ojffice. On proceeding in the master's office upon a reference as to inoam< brances in foreclosure cases it is not necessary to make search in the office of any deputy registrar of the Court to ascertain whether billg have been filed upon registered judgments, as such bills only preserre the rights of the judgment creditors in the particular suits in which they are filed. Grainger v. Grainger, 1 Cham. Rep., 241. 22— Solicitor. Where there were several plaintifls in a suit and final order of fore- closure had been obtained by their solicitor, held, that their solicitor could not afterwards move, on behalf of the defendants foreclosed, to set aside the order for foreclosure, though two of the plaintiffs concur- red in the application, and only the third objected. Boulton v. The Don and Danforth Road Company, 1 Cham. Rep., 329. 23— >Sfa?c. When the decree is for sale of mortgaged promises, the Court will not, on default, grant an order of foreclosure ex pane. Garralt v. McDonald, 1 Cham. Rep., 335. 24 — Interim injunction — Decree on prceGipe. Where in a foreclosure suit an interim injunction had been grant- ed to restrain the cutting of timber, the registrar has no power to grant a decree on praecipe containing a provision for continuing the in- junction. For this purpose the cause must be brought on for hearing. King V. Freeman, 1 Cham. Rep., 350. 25 — Change in the state of accounts after day appointed for payment — Notice of motion — Final order. A plaintiff who goes into possession of the mortgaged premises and receives rents after the day appointed for payment by the mortgagor, is entitled to a final order for foreclosure, without a new account being taken and a new day for payment given to the mortgagors. Semhle. ^th notice o L.J.N.S., 26— /Sfufeseg Where, bj before him U paid the am( brancers wh( time before them. Ardt ll—Attem On an app the attorney only a quart< There was a during the t mortgage mc order asked time ; but afj 5U. C.L.J l%— Costs i On an api gard to costs filing of the V. C, said \ purpose of p mortgi^ors, sonable ezei law contemj where the n not enter to the action, acted honaj 5 U. C. L. 29— il ceo Held, th receipt of i nz months a iubieque l;^5^'^ EQUITY DIGEST. 223 1 J Semhle. The plaintiff in such case should serve the mortgagor ^th notice of the motion for final order. Porlman v. Smith, 2 U. C. I. J. N. S., 167. 26—Suhseqv£nt incumbrancers. Where, by his report made under a foreclosure decree, the master appointed a time for all the subsequent incumbrancers Trho proved before him to redeem the plaintiff, one of whom at the time appointed paid the amount and took an assignment. Held, that the incum- brancers who did not redeem were entitled to three months' further time before the co-defendant could obtain a final foreclosure against them. Ardugh v, Wifson, 2 Cham. Rep., 70. 27 — Attendance to receive mortgage money. On an application for a finul order of foreclosure, the affidavit of the attorney appointed by the mortgagee showed an attendance of only a quarter of an hour at the appointed place, the solicitor's office. There was also an affidavit from the solicitor, that no one attended during the two hours appointed by the master's report to pay the mortgage money. Esten, V. C, doubted whether he could make tho order asked for as the attendance was for such a small portion of the time; but after consideration granted the order. Mitchell v. Hays, 6 U. C. L. J., 232. 2S— Costs at law. On an application under the orders of 8th February, 1858, in re- gard to costs of proceedings at law, the plaintiff, some time after the filing of the bill, having ejected defendant by legal process, Spragge, y. C, said that he considered the order was made merely for the purpose of preventing unnecessary and harrassing proceedings against mortgagors, and not for the purpose of preventing a prudent or rea- sonable exercise by the mortgagee of his right to bring an action at law contemporaniously with or prior to a suit in equity, and that where the mortgagee brings an action, in good faith, this Court will not enter too nicely into the question of the necessity or propriety of the action, the main question being whether the mortgagee has acted bona fide, or for the purpose of making costs. Dallas v. Goto, 6 U. C. L. J., 280. 29 — Account — Insurance moneys. Held, that in the absence of an agreement between the parties, the receipt of insurance moneys by the mortgagor during the currency of nx months allowed for redemption does not necessitate the taking of » lubiequent account. That the mortgagor is not in all oases bound 224 EQUITY DIGEST. H i t' ■ ) a.' i'r fj-^ to apply such moneja Id reduction of the mortgage debt, and cooTene- • ly, that the mortgagee is not entitled in all cases to charge the mort- gagor with the amounts oF the premium. Russell v, Robertson, 6 U, 0. L. J., 143. 30 — Final order — Delivering possession. The Court after the final order of foreclosure had been acted on the plaintiff granted an order for the delivering up possession of the mortgaged premises though not asked for, upon the final order ob- tained. Lazier v. Raiiney, G Grant, 323. ;il — Foreclosure by a Bank — Sales — Infants. The chartered banks of this Province have a right to a decree of foreclosure upon a mortgage held by them as security. The Court where it is considered beneficiul to the interests of an infant defecd- ant, will direct a sale instead of a foreclosure without requiring anj deposit to cover the expenses of such sale. Bank of Upper Canada V. Scott, 6 Qrant, 451. 82 — Statement as to parties or property without jurisdic- tion. In a bill for the foreclosure of a mortgage, it is not necessary to Btate the property or the parties to be within the jurisdiction of the Court. If it be necessary that the one or the other should be within the jurisdiction, that will be presumed in favor of the bill till the ccn* trary appears. Duncan v. Geary, 10 Giant, 34. 83 — Subsequent advances — Where suit dismissed without costs. A bill of foreclosure on a mortgage by the churchwardens of a church at Brampton claimed a lien for advances made by the mort- gagee subsequent to the execution of the mortgage. One of the de- fendants, who had ceased to be a churchwarden, put in an answer disputing this claim, the other defendants allowed the bill to be taken pro confesso. At the hearing the plaintiff's abandoned their claim for the subsequent advances. The Court dismissed the bill without costs, so far as it related to this claim. Hamilton v. Banting, 13 Grant, 486. 34! Married Woman — Decree on praecipe. The fact that a married woman is a defendant to a foreclosure suit (the time for her separate answer having elapsed) does not render it necessary to apply to a judge in chambers for a direction to the regit. trar to draw up the decree on proicipe as the r^utrur baa power to do so withoii 259. ^S—Dispe On an api new day for vice of the o of the jurist davit of the evidence of Adams v. i See Asi M£NT CbE FORECLOSUl See Arf Costs of, fc Colbo, ne See Ope See Par I— Setting Where a OQ the prese ing in the ii his property wards filed alleging tha assurance o; to take his \ ed the bill, other, if he ground of i Her V. Lee, 2 EQUITY DIGEST. 226 do 60 without any direction. Macife v. McDougalf, 1 Cham. Rep., 269. 35 — Dispensing with service of order appointing a new day. On an application in a foreclosure; suit for an order appointing a new day for payment of the mortgage money, it was asked that ser- vice of the order should be dispensed with, the defendant being out of the jurisdiction ; but the only evidence of that fact being an affi- davit of the plaintiff, the Court declined to treat such affidavit as evidence of the fact, and directed the order to be served if possible. Adams v. Earner, 1 Cham. Rep., 260. See Assignment — Chattel Mortqaoe — Infants — Judg- ment Ceeditors — Mauried Women — Mortgage — Opening Foreclosure — Practice. FOREIGN AFFIDAVIT. See Affidavit. FOREIGN COMMISSION. Costs of, form part of the costs of the cause. Colbo, ne v. Thomas, 4 Grant, 169. See Opening Publication. FORGERY. See Partnership. ':! ;'■ •f'j/^ FRAUD. l—Setting aside deed for. Where a party being in gaol on a charge of felony was liberated up- on the present defendant becoming bail for his appearance, and hav- ing in the interval between his liberation and trial executed a deed of his property to the defendant for ar. inadequate consideration, after- wards filed a bill to set this conveyance aside on the ground of fraud, alleging that he had executed it under the impression and upon the assurance of the defendant that the deed was merely a recognizance to take his trial. This allegation being disproved, the Court dismiss- ed the bill, but without costs, and gave the plaintiff leave to file an- other, if he should be so advised, to set aside the conveyance on the ground of inadequacy of consideration and undue influence. Val' Iter V. Lee, 2 Grant, 600. 2e f i ^ 226 EQUITY DIGEST. ij\ s, if 2 — Impeaching deed for. Where a party desires to impeach an instrument on the ground of fraud and extortion, the more convenient course is to institute pro- ceedings in order to annul it, as it is rarely that effect can be giTen to a defence, on such grounds, in a suit to enforce it. Kains v. Mt- Intosh, 10 Grant, 119. 3—WIiere delivery up of note improperly obtained. A gave B and C a not*- signed by himself, which they discounted When it matured B an! C delivered to the holder, by way of renewal a note, purporting to be made by A., like the other note, and which such holder, on that faith, accepted, and he delivered up the old note. It being afterwards alleged that the renewal was not signed by A, but by another person of the same name, unknown to the holder, and resi- dent in a foreign country. Held, that A could not take advantage of this fraud, that his liability in respect of the note still existed in equity, and that the holder could sue within six years from the discovery of the fraud, Irwin V. Freevian, 13 Grant, 455. See Fraud on Creditors— Frauds Statute op— Fraud- ulent Assignment— Fraudulent Conveyance— Fraudulent Judgment— Fraudulent Preference. 1^ ) FRAUD 0>I CREDITORS. 1 — Mcriage settlement. A deed purporting to be a bargain and sale, in consideration of £1000, and bearing date the day before the marriage of the gran- tor to the grantee, was impeached by a creditor of the grantor ; there wai no evidence of any prior negotiation for a marriage settlement, the deed was not executed by the grantee, and there was no evidence that it was known to her or to any one acting for her, until long nfter the marriage. The grantor, who was in trade, continued to deal with the property as owner, and the deed was not registered for three years afterwards, when the grantor had become insolvent. Held, that the deed could only be regarded as a voluatary deed, and as it did not appear that the grantor was in circumstances at the time to make a gift of so much property, tho deed was set aside as a fraud on creditors. (Spragge V. C, dissenting.) Mufhol/and v. William' ton, 12 Grant, 91. ^Setting A settler heirs, allegin dement. T children by and it was ment only v< settler could 5 U. C. L. See Agi Iksolvenci What ft sufficient SherUTs sale, 3. Siming by aucti Unwritten trusts \...What c Whether addressed to husband wit i^reement f( in the statui charged. ^ 2 A pap which clenrl ohase mone; unpaid is to should be e statute of fr Qu(tre. ^ sold by pare and sent hii contract, bv the mistake note in writ Roheriion, Z-Slieri§ Where a Law, but b EQUITY DIGEST. 227 2 Setting aside settlement for trustees — Life estate. A settler filed a bill to set aside a settlement on his wife,, and her heirs, alleging fraud by the trustees in inducing him to make the set- tlement. The wife died leaving no children by him, but leaving children by a former husband. The allegations of the bill failed, and it was accordingly dismissed, but it was he/d, that this settle- ment only vested a life estate in the trustees, and semblc that the settler could defeat the settlement by a sale. Crawford v. McDonagh, 5 U. C. L. J., 187. See Aqreement— Attorney and Client— Conveyance — Insolvency— Nb Ex eat — Partnership — Pleading. FRAUDS, Sl'ATUTE OF. What a sufficient writing, 1, 2. Shariirg sale, 3. Siting by auctioneer"! clerk, 6. Unwritten trusts, 6. Deed made to two, one claiming to be solely interested, 4. I'urchase of contingent interest of de- visee, 7. l.„ What a sufficient icriting. Whether a letter written by a third person, and signed by him, addressed to the intended wife, and delivered to her by the intended husband with a knowledge on his part of its contents, evidencing an agreement for a settlement by him would be a sufficient writing with- in the statute of frauds signed by the agent of the party sought to be charged. Qumre. Gillespie v. Grorcr, 3 Grant, 558. 2 A paper containing a receipt for part of the purchase money, which clearly ascertains the land to b.; sold, and the amount of pur- chase money, but omits to state when a portion of the money left aapaid is to be made payable, althougli it provided that such portion ehould bo secured by mortgage, is a sufficient writing within the statute of frauds. Devine i\ Griffin, 4 Grant, 603. Quctre. Where the agent of a person resident out of this Province sold by parol half a lot of land of the principal, and afterwards wrote and sent him a letter in which the agent detailed the terms of the contract, but mentioned the whole instead of the half of the lot, and the mistake was clearly proved, whether this would be a sufficient note in writing to satisfy the pro\dsions of the statute. Jennings v. Robertson, 3 Grant, 513. S-Slierifs Sale. Where a sheriff had sold property under an ezccutior. at Common Law, but before any deed was ezeouted by him, a settlement was W ;v' w if (■ 4* I ► ■•■ 228 EQUITY DIGEST. effected by the debtor with the execution creditor, who thereupon desired the sheriff to refrain from coiupl<>ting the sale, and the sheriff accordingly refused to convey the property to the purchaser at sher* iff's sale, who thereupon filed a bill against the sheriff to compel him specifically to perform the alleged contract, but it apj)eared that no memorandum evidencing the sale had been madu or signed by the sheriff. Held, that the contract must be in writing under the stat- ute of frauds. Wiiliam v. Smilh, 5 Grant, 203. 4 — Deed made to two, one clalmhrr/ to be solely entitled. A deed was taken in the name of two, as grantees of tho property conveyed, one of the grantees afterwards claiming to be solely inter- ested in the property as purchaser, filed a bill to have his co-grantee declared a trustee ef one moiety of the property for him, the evidence adduced, shewed that the deed was intentionally drawn in the manner it was, receipts for the instalments of the purchase money were taken in the name of the two, and a mortgage for securing the balance of purchase money due was executed by both. Held, that if even the whole amount of purchase money was advanced by the one, it was not sufficient to shew that the purchase was made solely for his benefit. Hutchinson v. Hutchinson, 6 Grant, 1 1 7. 5 — Signing by auctioneer's clerk. A paper used at a sale by auction of certain lands contained the conditions of the sale and numbers of tho lots bid off by the sevcril purchasers, on which their names were written in pencil opposite the lots purchased, and afterwards covered over with ink by the auction- eer's clerk, it having been announced before the sale that ho would that this was sufficient sign- frauds. Crooks V. Davis, 6 a farm for two years with the sign for the several purchasers, ing of the contract within the stat| Grant, 317. 6 — Unwritten trusts. The plaintiff had procured a lease privilege of purchase, the lease having'>becn taken by him in the names of two of the defendants, but without their knowledge, and was witnessed by the plaintiff. The bill alleging that this course was adopted for the benefit of the plaintiff, who, it was shown, had, before this time, assigned all his clliects for the benefit of his family, the plain- tiff asserting that his intention was to pay tho purchase money for the land out of the moneys belonging to his wife in hands of trustees, in which, however, the plaintiff had no interest, but there was no writing to evidence tho trust alleged by tho plaintiff. One of tho EQUITY DIGEST. 229 defendants," who was a trustee of the wife's money, subsequently bought the property, the price for which was paid out of his own funds and gave to trustees a lease of it for the use of the plaintiff's wife and children. Upon a bill filed to have it declared that the pur- chase had been for the benefit of the plaintiff, and to have the lease to trustees cancelled ; the Court, under the circumstances, refused the relief prayed, and dismissed the bill with costs, but with liberty to file a new bill if the plaintiff should be so advised. Parsons v, Kendall, Grant, 408. 1— Purchase of contingent interest of devisee. Semble. The purchase of a devisee's contingent interest in real estate is a purchase of an interest in lands within the statute of frauds. McDiarmid r. McDairmid, 9 Grant, 144. See Pleading— Specific Peufobmance— Pdrchase Monet. FilAUDULENT ASSIGNMENT. 1—Madc in contemplation of indebtedness. A conveyance may be fraudulent and void as against creditors al- though no debt may be in existence at the time, if made in contem- plation of becoming indebted, where therefore the circumstances attending a transfer of real estate from one brother to another were such that the Court felt satisfied that a jury would have arrived at the conclusion that the sale was colorable and fictitious, and made for defrauding creditors, the deed was declared void at the instance of a creditor of the assignor, the amount of whose claim was ordered to be paid in one month or in default that the property in question be sold. The Bank of British North America v. Raltenbury, 7 Grant, 383. 2— Insolvent trader selUnfj stock in fraud of creditors. A trader being insolvent in circumstances, at a meeting of his creditors entered into a written agreement that he would execute an assignment to trustees for the benefit of his creditors of all his real and personal estate and effects, (except certain policies of life insur- ance,) and on the second day afterwards he did execute the deed agreed upon, which the trustees accepted and several of his creditors joined in and executed the same. Afterwards it was discovered that on the day intervening between the date of the agreement to assign and the execution of the deed of assignment the debtor had sold a valuable portion of his stock-in-trade at a credit running over three 230 EQUITY DIGEST. ^\ t H .?4' years, and had accepted as security the promissory note of the pur- chaser. Thereupon the trustees filed a hill seeking to have this sale set aside as fraudulent and void as against them. Held, that the trustees heing in the position of purchasers could claim only saoh rights as the debtor was legally entitled to at the date of the execu- tion of the deed of trust, and that the sale being binding upon the debtor and those claiming under him, trustees were not entitled to the relief prayed ; but semble, that this sale would net have been sug- tained as against a judgment creditor who had sued out execution. McMaster v. Clare, 7 Grant, 550. See Deed. FRAUDULENT CONVEYANCE. Where executed in contemplation of f>uit, 1 Trustee, 2. Bill by purchaser under fl. fa. of interest fraudulently conveyed, 3. Judgment creditor allowed to redeem, 4. Sheriff's sale, 4. Attachment against absconding debtor not ground for sotting aside conveyance, 5. Conveyance for alleged wages, 0. Setting aside, 11. Pleading, 12, 18. Purchase at sheriff's sale, 13. Execution creditor buying at sheriiTi sale, 10. Mortgage, 6. Judgment creditor, 6. Stat. 13, Elii. 6, 7, 8. Indijent debtor's Act, 14. 1 — Where executed in contemplation of suit. Divers conveyances executed by the defendant shortly before the commencement of this suit were declared fraudulent and void, as against the plain tiflF. Prentiss v. Brennan, 4 Grant, 148. 2 — Trustee. Property was conveyed to a trustee for the purpose of disappoint- ing creditors, and afterwards the person claiming to be beneficially in- terested, filed a bill for a conveyance to himself; under these circum- stances the bill would have been dismissed, had not the defendant by his answer admitted that he was a trustee ; and it appearing that the wife who was not a party to the suit, and was living separate from her husband, was entitled to the beneficial inheritance, an inquiry was directed as to the cause of her separation, with a view of ascer- taining how the Court should direct the rents of the estate to be applied. Phelan v. Fraser, 6 Grant, 336, 3 — Bill by purchase I' under f.. fa. of interest fraudulently conveyed. The owner of lands subject to several mortgages, made a convey, ance thereof to his brother, but without his knowledge, and the person by whose advice the deed was executed, stated in evidence, that the deed though absolute in form, was made upon trust for se> curing the incumbrances affecting the property, and for the benefit ";.-;3' EQUITY DIGEST. 231 of the grantor's children ; the grantor at the time being greatly in- voWed, and having no other property except some book debts, and gome household furniture. A sale of the grantor's interest was sub- lequently affected by the sheriff, upon an execution, and the pur- chaser having filed a bill, impeaching the conveyance upon trust as a fraud upon creditors, and praying to be admitted to redeem, the Court, under the circumstances decreed in his favour. Beamish v. Pomeroy, 6 Grant, 586. ^Judgment creditor allowed to redeern — Sherifs sale. A debtor conveyed his land in fee for a sum greatly below its value but continued in possession without paying rent, the heir of his vendee several years afterwards sold and conveyed the land, the sale having been brought about and managed by the debtor, and the parohaser was shewn to have had notice of the indebtedness, and other material circumstances. A creditor afterwards sued out execution 'against the lands of the debtor, under which his interest in the property was sold for five shillings to the execution creditor, who filed a bill to set aside the sale by the original owner, and have himself declared the owner of the land. The Court refused this, but gave him a right to redeem by virtue of his judgment, in accordance with an alternative prayer in the bill. Wilson v. Shier, 6 Grant, 630. 5— Attachment against absconding debtor not ground for setting aside conveyance. The fact that a simple contract creditor has sued out a writ of at- tachment against an absconding debtor, does not afford any ground for coming to this Court ; to have a conveyance alleged to be fraud- lent as against the creditors of the debtor set aside. Before the Court can be called upon to do so, the creditor must establish his right to recover at law. Whiting v. Lawrason, 7 Grant, 603. Q—Mortgage — Judgment creditor. , There being disputed accounts between A and B, an action at law was commenced by the former against the latter, prior to Febru- ary, 1859. In December of that year, B executed a mortgage for £130 to one H, to secure to him the payment of a debt of £30, but principally with the object of raising money upon it with which to pay off another indebtedness. There being a mistake in the descrip- tion, and B requiring more money than this mortgage would cover, another mortgage (for £200) was executed for this purpose. Both of these instraments were held by H, for sale in order to raise the r - < 1 232 EQUITY DIGEST. 'i» - . ''1 r 1 1' ^ 't' * \^ required amount, and be withheld them from registration until b could find a purchaser. On the 22nd of Setember, 1860, A recovered a judgment, which he registered the same day. Hearing that A w»s about to enter judgment, H on the day of entering the judgment, and before the entry thereof, though so far as appeared without the knor ledge of B, registered his mortgages for the avowed purpose of retain- ing his priority. Shortly after the registration H returned the first mortgai^o tf^ "B. intending to use the second one only, and en. deavc XTQd .i iiately afterwards to sell it, and had contracted to do so for ; c\a fide purpose of raising money wherewith to pay off the claim of A, though the object was not accomplished. Besides the lands oovei'-'d by t(;^ mortgages, B owned other available prop. erty worth more than suffiripv t for payment of his debts, as also, a quantity of household furniture. On a bill filed against B and H impeaching the mortgage, as having been made voluntarily without consideration, and with intent to defeat and delay creditors. EeU, that these charges were not supported, but the plaintiff was allowed to redeem on payment of the amount for which the mortgage was a subsisting security, and paying H his costs of the suit. (Esten V. 0., dissenting, who thought for all in excess of £30 and interest, the mortgages were fraudulent and void,) Dickinson, v. Duffel, 10 Grant, 76. 7—Prov. Stat, 20 Vic. and 13 Eliz. S, by an arrangement between himself and H, the owner of the equity of redemption, under a mortgage made by 6, released the security without any consideration paid therefor by H or G, and discharged H from liability. On a bill filed by an execution creditor ofS, charging that, at the time of this release, S was indebted to him, and was in embarrassed and insolvent circumstances, praying that the discharge might be declared void as being within the statute 13 Eliza* beth, c. 5, under the provisions of the provincial act, 20 Victoria, o. 7, and for foreclosure Or sale and an order against H to pay the de- ficiency. Held, that the interest of a mortgagee is of a nature to bring it within the statute of Elazabeth, if it can be seized under the 20 Victoria, or can be compulsorily applied to the payment of debts, and that a discharge of it without a consideration is " a gift or alienation" within the prior statute ; that the mortgage would have been seizablo had it not been discharged ; that when the mort- gage is actually seized by the sheriff and the mortgage debt is to be received, the sheriff, perhaps, must sue, and the creditors are, under \rh . f ■:j.^ EQUITY DIGEST. 233 the statute, entitled to the same remedies (with that one exception) ai an ordinary assignee, that when the mortgage debt was to be realiz- ed otherwise than by the sheriff sueine:, it lies upon the Court to see that it is realized for the benefit of the party entitled ; that the dis- charge of the mortgage and the arrangement between H and S had the effect of releasing G from liability, though the release might be declared void and the mortgage set up again, and therefore that G would not have been a proper party. Bank of Upper Canada v. Shickluna, 10 Grant, 157. 8—13 Elizabeth, 5. Where a person in business, being liable to a bank as endorser for others to the amount of £6,400, and on his own account to about £3,500, and liable otherwise to a large extent, made a gift of a mort- gage which he held upon real estate for £250, by releasing the claim to the owner of the equity of redemption, (his assets at the time being much more that £10,000), and subsequently his indebtedness to the bank was doubled, and afterwards a judgment was obtained by the bank, and execution issued out against him for £6,855, in re- spect of moneys due at the date of the release. Held, that these facts did not bring the case within the 13th Elizabeth, lb. Cross relief. A suit having instituted by judgment creditors to set aside certain conveyances made by their debtor, as having been made fraudulently and with a view to hinder and delay creditors, the debtor attempted by way of defence to shew facts which if established would tend to annul the judgment altogether, or to reduce its amount; such facts having been discovered since the trial at law, and when it was too late to obtain a new trial. Held, that the proper means of obtaining such relief was by cross bill, the order of the Court (general order 12, sec. 4, of June, 1853,) permitting cross relief to be given to the defendant, against the plaintiff, applying only where the defendant is entitled to some relief growing out of the same transaction as forms the foundation of the suit, but not where the object of the de- fence is to obtain relief not growing out of the transaction, but against it. Buchanan v. Cunningham, 10 Grant, 513. 9— Conveyance for alleged wages, &c. M. B. an unmarried woman, resided for some years with her sister and brother-in-law ; he having become involved in his circumstances, conveyed his real estate to M. B., for the alleged consideration of wages due her, as a hired servant. Promissory notes were also made aai* given to M. B., by her brother-in-law, and on these notei beoom* 2f ^^■b ill ^Rp^^ ;:"' i mil 1 4 1 \ '■>^fM' vrrr 234 Equity digest. >A v.. ing due, judgment was obtained, under whioh M. B. sold the farm stock, and other personal property of her brother-in-law ; becoming herself the purchaser. The evidence as to bona fides, and good consideration for the transfer of the land, and the giving of the notei was unsatisfactorj, and the conveyance was set aside as fraudulent at the instance of the creditors of tho grantor. Boll r. Ballanttrnt 11 Grant, 199. 10 — Execution creditor hmjing at sheriffs sale at low price. Where an execution creditor purchased property at sheriff's sale at one sixth its value, the Court held that effect could only be given to such a transaction, as a r^ecurity for tho debt and costs, and not as an absolute purchase. Kerr v. Buitt, 11 Grant, 423 . 11 — Setting aside. The agent of a bank having become indebted to his principals in a large sum of money, proceedings were taken to enforce the pay- ment thereof, and when execution therefor was on the eve of being sued out, the agent absconded from the country, and with the avowed object of defrauding the claim of the bank ; but as the agent alleged for the purpose of paying his other creditors, conveyed away to a person to whom he was then only introduced, a large quantity of valuable lands to be paid for in goods at long dates, returning at night for the purpose of executing the conveyances, which were executed without any investigation of the title to the property, and the agent subsequently assigned the agreement for the delivery of the goods to his son, taking in payment his notes, payable over a period of several years, the Court under the circumstances set aside the sale as fraudulent against the bank. The Bank of Upper Canada V. Thomas, 9 Grant, 321. 12 — Pleading. . • Where a bill was filed to impeach a deed as colourable, and the evidence shewed it to be fraudulent if not colourable, and the same statements would have been necessary, had the bill sought to impeach it on the ground of fraud ; the Court refused to entertain an objection at the hearing, that the bill had not sought to set it aside on that ground, or assigned fraud as an alternative ground of relief, Commi^cial Bank v. Cook, 9 Grant, 524. 13 — Pleading — Purchase at sheriff's sale. An execution creditor proceeded to a sale of the lands of hi- k •%i.f EQUITY DIGEST. FUHTHER DIRECTIONS. Defaetlve decree, 1. Where directions omitted in original decree, Where report wrong, J. Where decree pro. con. , 4. Partition, 3. 1 — Defective decree. The decree being defective in several particulars, the Court on further directions supplied ae far as possible the defects of the decite without a rehearing of the cause. Rohertson v. Myers, 1 Grant, 560. 2 — Witerc report ivrong. Under a decree for taking partnership accounts in which the mig. ter was directed to stato special circumstances, and make all jut allowances, the master reported thut in taking the accounts, he htd amongst other things charged one of the partners for his board, &c. with the other, after the dissolution of the partnership. Held, wrong, and that the objection could be taken on the hearing on further di- rections. O'Lone v. O'Lone, 2 Grant, 125. 3 — Where direction omitted in original decree — Partition. Where a decree which reserved no further directions, directed that a Bale or partition of the property in question, should take place ac- cording as the master might consider either course more for the interest of the parties, but contained no directions as to the convey- ances or possession, or as to the execution of the deeds, and the master reported in favour of a partition, The Court on motion ordered the execution of conveyances, and the delivery of the posses- sion of the property agreeably to the finding of the master. N. C. 2 Grant, 642. 4 — Decree pro confesso. Where a decree ^ro confesso reserves further directions, and it is not necessary to serve notice on any of the parties, the cause may be set down on further directions at any time before the sitting of the Court. Cook v. Gingrich, 12 Grant, 416. See Partnership — Practice. GARNISHEE ORDER. Attachment of debts in hands of admioii- trator, 3. Costs, 5. Examination of defendant, 1. Payment under of costs coming to ynlicitor of debtor, 2, Notice, 4. 1 — Examination of di.f-'ndant. The Court will grant an order fur the extimination of the defen- dant for the purpose of ascertaining what debts are due the defen- EQUITY DIGEST. 239 dant under the statute 22. Viot. 33, see. 12, mth a view of garnisheeing such debts. (The Chancellor. ) Bostwick v. ShortiSj 1 Cham. Rep., 69. ^—Payment under of costs comuuj to solicitor of debtor. An award for an amount together with costs having been made Id favoar of a party, the costs wore taxed by consent, and the amount promised to be paid to the solicitor of the party ordered to receive guoh costs. A garnishee order was subsequently obtained by a third party, under which the amount awarded, and the costs were paid over to such third party with notice however, of the solicitor's lien for the costs, under those circumstances a motion made to stay pro- V ''ngs to enforce payment of the costs under the award at the ie of the solicitor to whom they were payable was refused with 00^... McLean v. Beatty, 1 Cham. Kep., 138. ^Attachment of debts in hands of administratoi'. A debt due to an administrator in his representative character cannot be attached to answer a debt due by the administrator in his private capacity. Bowman v. Bowman, 1 Cham. Rep., 172. ^Notice. Where an application is made to compel a garnishee to pay over to the creditor, debts due by him to the debtor, which have been gamisheed, notice must be served on such garnishee. In Re Eng- lish,! Oh&w Rep., 197. 5— Coats. A creditor applying for a^ garnishee order is not entitled to the costs of the application. Evans v, Evans, 1- Cham. Rep., 248. GENERAL ORDERS. Infant defendant, 8, 10. Notice of pleading, omission to lervt, Order 37, 4. AcU relating to, 10. Amending, 1. Amendment, trutii of, 2. Goats,!. Bumination of witneues, 7- Foreign commission, 6. \—Amendi7ig. When a motion is made to amend the bill under the 13th of the orders of May, 1850, a draft of the proposed amendments must be laid before the Court upon the application, but it need not be set out in tlie notice of motion. Applegarth v. Baker, 2 Grant, 428. 2— Truth of amendments. The plaintiff upon making such a motion, will be required to sat- iafy the Court, first of the truth of the proposed amendment, and Kli 240 EQUITY DIGEST. I-"' '! secondly, of the propriety and expediency, mth a view to the endi of justice, of permitting the amendment under all the circumstancet and at the particular stage of Vae case. lb. 3- -Coats of. With respect to the costs of motions to amend under the 13th order of May, 1860, no general rule can be laid down, each casemut depend upon its particular circumstances, lb. 4— 37 A-<^ I tXi, ' f it( ^4^ fiQUItT DIGESt. 1J to time suBpend, repeal, vary or revive any such orders, bat no sneh order shall have the effect of altering the principles or rules of deQii. ion of the Court. 12 Vict., ch. 64, s. 11. See. c. 72, s. 7. 7 W, IV, ch. 2, a. 4 ; 20, Vict., ch. 66, *. 21. GENERAL RELIEF, PRAYER FOR. In a redemption suit upon its appearing that K a purchaser for value with constructive notice, but without actual notice, held a ro- istered title of the land in question, as well as S to whom he had sold, the bill was dismissed as as^ainst K with costs, and the plaintiff praying specifically for a reconveyance of the mortgaged premiies, Held, he was not entitled to personal relief under the prayer for general relief. Graham v. Chalmers, 9 Grant, 239. GIFT. Where a gift is impeached, it is incumbent upon the donee to establish that the donor thoroughly understood the nature and effect of it, and if any doubt exists on this head, the gift cannot be supported, and it is not incumbent upon the parties impugning the transaction to shew that the donor did not thoroughly understand the nature and effect of his own act. Murray v. Murray, 8 Grant, 293. By husband to wife — What suffi^cient evidence of. After the death of a man and his wife, a sum of money was found deposited in a bank at the credit of the wife, which had been so de- posited in the life time of the husband, but it did not appear by whom, the wife survived the husband, and after her death, a question being made to whose estate the fuu'ls belonged ; held, that it belong- ed to the estate of the wife. Ferris v. Hamilton, 9 Grant, 362, Ski Husband and Wife, GOOD FRIDAY. Notice for. See Practice. GRAND TRUNK RAILWAY COMPANY. 1 — Rights of 'preference bondholders. Held, that under Provincial Statute 12, Vic. cap. 29., 18 Via cap. 173, and 19 and 20 Vic. cap. Ill, the preference bondholder! EQUITT DIGEST. 248 of the Grand Trunk Railway Company are in the position of pre* ftrred creditors having a Hen on the road, and all the workti and pro- perty of the Railway, 2 That the rights of the preference bondholders, thus orc^ated are not impaired by any subsequent enactments, and if anything confirm- ed by Stat. 22 Vic. c. 52, 3 That the bondholders can institute a suit to restrain the direc- tors from applying the earnings of the road in any other way than in the order appointed by the acts. 4 That the bondholders having a lien, are not obliged to submit to payment of past debts, which the directors neglected to pay. Herriek v. The Grand Trunk Railway, 7 U. C. L. J., 240. GRANT FROM THE CROWN. Mistake in law or fact, 1, S. Porcliaser atsIieriS's sale of bargainee'* in- terest, 2, ftu8tee,2. BeyiJtry act, 4. Hdr and devisee commission, S. Notice, 5. Possession, 0. Setting aside, 7, • False representations made to GoTcrn- ment, 7. Where patent granted in Ignorance of a material fact 8. 1— Mistake in law or fact. Although the crown will be permitted to shew mistake in law or fact, in respect of its grant, when it would not be open for an indi- vidual to do eo, still the evidence must not be such as to make out a prima facie case only. Attorney General v. Garhuit, 5 Grant, 18L 2 — Purchaser at sheriff's sale of bargainee's interest—Trua- tee. The plaintiff having purchased at sheriff's sale all the interest of a bargaiceo of the crown to certain lands, placed the defendant in possessioa ; afterwards the Crown Lands Department advertised these lands amongst others for sale at a stipulated price. The rule of the department in such case was, that the occupant of any such lands was entitled to a right of preemption, and the defendant concealing iho nature of his holding, applied for and became the purchaser of these lands, and obtained a patent therefor, after notice to the Gov- ernment of the claim of the plaintiff. Upon a bill filed for that pur- pose the Court declared the defendant a trustee of the lands, and ordered him to pay the costs. Dousrall v. Lang, 5 Grant, 292. Boullon V. Jeffery, [reported in U. C. Jurist, p. 74, and 1 E. il; A., Ill,] remarked upon, ib. '^I'-'i r ■ ■ "IF* 244 EQUITY DIGEST. < ,^'r '» «,i f'F,^ f ■« 3 — Mistake. In the year 1797, an order in council was made in favour of M. P. as daughter of S. De. F. a U. E. loyalist, under which a lot of lagj was located, and a description thereof was regularly made out in her name, hut in the year 1801 a patent for the lot so described issoed to the one M. F, the sister of the husband of the locatee, but during her life she never claimed any interest under such patent. No authori- ty was shewn for the change of the name in the grant from « M P " to " M. F. " The Court at the suit of the attorney general, decreed the patent to be cancelled, [Esten \ . 0., dissenting.] At- torney General V. GarbuU, 5 Grant, 383 4 — Registry act. The registry acts do not apply to instruments executed previously to the grant from the crown ; where, therefore, the locatee of land ex- ecuted a bond to convey, and after the issuing of the patent, sold and conveyed the property to a third party, who again sold and ex- eonted a conveyance to a purchaser for value, but before either had paid his purchase money, the holder of the bond having registered the same, filed and served a bill for specific performance. Held, that neither vendee was in a position to plead a purchase for value with- out notice, and that the plaintiff was cititled to a specific perform- ance with costs. Casey v. Jordun, 5 Grant, 467. 5 — Heir and devisee commissiort — Demurrer. The commissioners under the heir and devisee act, in deciding upon claims brought before them, are not bound by the strict rules applicable to the Courts of law, where therefore a purchaser from the crown devised land for which the patent had not issued to his wife for life, with a power of appointment amongst his descendants in tail« and she by her will devised the estate to one of such descendants in fee, who applied to the heir and devisee commission, and the com- missioners recommended a grant in tail to the person named as de- visee. The crown acting upon such recommendation issued a patent in favour of such devisee, a bill was afterwards filed to set aside the petent as having been issued in error, or through improvidence, a demurrer put in ore tenus at the hearing for want of equity, was allowed. Scane v. Harlrick, 7 Grant, 161. 6 — Notice — Possession. A patent was issued to A in consideration of improvements having been made on the land, but the benefit of these improvements had, on an arbitration between A and B, been adjudged to B, and the ad- EQtJITY DIGEST. 245 jadication was in no way impeaobed or discredited, and it was shewn to be the settled policy of the crown to issue patents in such cases to those entitled to the benefit of the improvements. Held, that though the award was known to the officers of the Government when the patent was issued, the patent should be set aside at the suit of the Attorney-General, as having been issued through fraud, and in error and improvidence. The Auorney-General v. McNulty, 11 Grant, 281. 1— Setting aside — False representations to Government. A bill was filed alleging that by an act of the Tegislature the Grand River Navigation Company were empowered to take such land as might be necessary for the purposes of the act, subject to payment, and in case of dispute arbitrators were named to determine the amount, and compensation was, in the same manner, to be made for any Indian lands required for the undertaking. The bill alleged that the company having claimed as being necessary for the purposes of the work, a tract of land containing about ninety-one acres, and form- ing part of the village of Cayuga, which was then occupied and im- proved by several parties. An arbitration was had in respect thereof on the 30th day of October, 1847, when an award was made direct- ing the payment of £158 5s for the right of the Indians therein ; but that no notice was given to the occupiers of the land, nor was any- thing further done in the matter until January 1864, when the assignees of the company applied to the government for the absolute purchase of the land, untruly representing that the company had gone into possession under the award and were then in peaceable possession ; that the only improvements made on the land were so made by squatters with knowledge of the company's -rights, and the applicants were thereupon allowed to purchase for the sum awarded and interest, although in reality the land, by the improvement of the occupiers was then worth ten times the amount. The bill prayed to set aside the patent as having been issued through fraud, error, impro- vidence and mistake. A demurrer by the patentees for want of equity was overruled. Westhrooke r. The Allorney-General, 11 Grant, 330. Whether, although a person may have been entitled to a grant from the crown, yet if, on his applying therefor, he knowingly makes grossly false rcprescntaUons to the Government, the patent may not be set aside. Quccre. lb. ^— Where parties ignorant of a material fact, not set aside. Although parties dealing with the crown will be held to the strictest ,V (-. i !*' m EQUITY DIGEST. mJ H n'wV i< jgood faith, yet where it is shewn that the patentee of land was ignor- ant of a fact which might have been material to bring under the notice of the officers of the crown, and the plaintiff had the oppor tanity, but failed to do so, and subsequently filed a bill impeaching the patent as having been if^aued in error and improvidence, the Gonrt refused the relief prayed, and dismissed the bill with costs. Mahon V. McLean, 13 Grant, 361. Seb Administration — Crown — Crown Patent— Patent. GUARANTEE. S, by letter, informed R and K that his son was a partner in i firm, and that he had advanced to him £3,000, as his share of the capital thereof. The firm having failed made an assignment in whicli S was preferred to the amount of £3563 5s 3d represented as made up of loans and advances to the firm. The actual capital advanced to the son appeared to be only £1000. Held, notwithstanding that S was bound to make good his representation to R and K, so far as they alone were concerned, but that other creditors could not partici- pate, the representation being only to a particular creditor, unless it should appear that a portion of the preferred claim of S was not a debt of the firm to him, but consisted of capital advanced to the son, in which event that portion would be applied on their claims, it not appearing that the goods furnished by them had been sold upon the faith of the representation to R and K ; but if that had been shewn to have been the case, they would have had that right. Rainey r, Dickson, 8 Grant, 450. Semble. Held, also, that, under the circumstances, such state- ment of S was a continuing guarantee, so far as R and K were con- cemed. GUARDIAN AD LITEM. Adminiatntion suit, in, 0. Payment for improvement, IS. Authority of, 4. Plaintiff's solicitor, 6. Chonffo of defence, 13. Person of unsound mind, 6. Death of, 7. Service of notice, 8, U. Dutv of, 3. Eridence of lunacy, 12, Testamentary (juurdian, 1. Void lease, 13. Setting aside, 14. Jurisdiction, removing infant from, 2. Leavingr the Pro>ince, 12. Where interests conflict. 10. Lunatic, 10. Serviue of bill in injunction, &c., IS. l-— Testamentary guardian. The Court will appoint the testamentary guardian a guardian ai litem to infant defendants without requiring all the infants to be pro- duced in Court, when it appears that the interest of the guardian is not opposed to that of the infants. White v, Cummins, 2 Grant, 487, 2— iZemovi The Court by the Court the person of dian, when tl jurisdiction, fant's estate. 3— Du<2/ oj Where the appear at the tained, were in their abse stead, and di Sanborn, 11 /^Author The guarc ject of the sv ing any fund 5— To pers In moving unsound min inquiution. Rep., 70. Q—Plainti The Courl in an arnica] liUm. Jam 1— Death < Where a without noti %— Service Where it ant were liv not be fount mentofagu of the moth NTvice on Gbatn. Rep Of ^'v it' EQUITY DIGEST. 247 ^—Removing infant out of jurisdiction. The Court will, upon the petition of the guardian duly appointed by the Court of Probate and Surrogate, interfere summarily and order the person of the infant to be delivered into the custody of such guar- dian when there is a danger of such infant being removed out of the jnriwliction, although no suit is pending in Court respecting the in- fant's estate. Re Gillrie, 3 Grant, 279. ^^Duty of. Where the guardian for infant defendants, being notified, did not appear at the hearing, and their interests, which were not fully ascer- tained, were not represented, the Court refused to pronounce a decree in their absence, removed the guardian, appointed another in his stead, and directed the cause to be again brought on. Sanborn v. Sanhom, 11 Grant, 123. ^Authority of The guardian ad litem to an infant has no authority, after the ob- ject of tiie suit has been accomplished, to act for the infant in invest- ing any funds for the infant. DiK v. Jarmarif 1 Cham. Rep., 38. 5 — To 'person of unsound mind. In moving to have a guardian ad litem appointed to a person of unsound mind, it must be shewn that he has not been so found by inquisition. [Spragge, V. C] Crawford v. Birdsall, 1 Cham. Rep., 70. ^Plaintiff's solicitor. The Court will not, even at the request of the infant defendants, in an amicable suit appoint the plaintiff's solicitor their guardian ad litem. James v. Robertson, 1 Cham, Hep., 197. 7— Death of. Where a guardian ad litem dies, a new one may be appointed without notice. Harper v. Harper, 1 Cham. Rep., 217. 8— Service of notice. Where it appears that the mother and father of an infant defend- ant were living apart, and that the infant had absconded and could not be found to be served with notice of application for the appoint- ment of aguardian, the notice was directed to be served at the residence of the mother, that being the last place of residence of the infant * service on the father being dispensed with. Bigger v. Bealy, 1 Cbitt. Rep., 236. ■■-& ?■*, 248 EQUtTY DIGEST. \\ t ^ ■J 9 — ^/n. administration suit. It is no bar to the appointment of a guardian ad litem to an infant defendant in an administration suit in Chambers by motion that the application for guardian is made before the return of the notice of motion for the usual administration order. Barry v. Brazill, l Oham. Rep., 237. 10 — To lunatic — Evidence of lunacy. On an application to appoint a guardian, ad litem to a person all^d to be of unsound mind, not so found by inquisition, it is not suffici- ent evidence of the fact of lunacy that deponents swear that the person is of unsound mind or that they believe him to be so ; suoh facts should be shewn that the Court may judge for itself whether the person is of unsound mind or not. It must also be shewn that the proposed guardian has no interest conflicting with that of the lunatic. Mclntyre v. Kingsley, 1 Cham. Hep., 281. 11 — Service of notice. Upon an application to appoint a guardian ad litem to an infant who was a resident pupil at Upper Canada College, Toronto, it ap- peared that notice of the application had been served upon the prin- cipal of the college. Held, that this was service upon " a person with whom, or under whose care " the infant was residing within the meaning of Order XIII, sec. 5. W/dlmarsh v. Ford, 1 Cham. Rep., 357. 12 — Leaving the Province. Where a guardian ad litem of infant defendants leaves the Province another will be appointed on the ex parte application of the plaintiff. Weldon v. Templeton, 1 Cham. Rep., 360. 13 — Change of reference. Where it becomes necessary in the course of a suit to add as a defendant the master to whom the cause stands referred, a change of reference will be made on the ex parte application of the plaintiff. lb. Void lease — Payment for improvements. The guardian ad litem of an infant tenant for life, without the sanction of the Court executed a lease for years, during the existence of which the infant died, and an application having been made in the cause for an order on the tenant to deliver up possession, he was or* dered to do so, and on payment into Court of the amount of rent in am ar he was permitted to remove the buildings and erections put by EQUITY DIGEST. 249 him on the property (doing no damage to the reality,) but the Court refosed to allow him oat of such rents for any improvements made by him upon the premises. TomnsUy v. Neil, 10 Qrant, 72. li-^Setting aside. Ji. suit had been instituted by a creditor for the administration of the estate of a party deceased, and the agent of the solicitor for the plaintiff was appointed guardian ad litem to the infant defendants, after a sale of the lands under the decree at which the plaintiff by leave of the Court had bid off a portion of the lands, a motion was nuide to change the name of the purchaser. The Court upon look- ing into the papers refused the application and directed that a new guardian should be appointed, who, unless the parties consented thereto, was to take measures to set the prooeedmgs aside. Fletcher V, Bostcorlh, 5 Grant, 448. Seting aside appointrtient. An order appointing a guardian ad liletn was set aside for irregular- ity, where it was shewn that the notice of motion for the appoint- ment did not allow the infant six months to appear and shew cause, bat the guardian thus irregularly appointed was allowed his costs ap to decree. Hamilton v. Hamilton, 2 Cham. Elcp., 160. 15— Where intereata confiict. Where a father and his infant children are co-defendants, if it ap- pears that the interest of the father conflicts with that of the ohildreo the Court will not appoint the solicitor defending for tho father guardian ad litem to the infants. Aikin* v. Blain, 1 Cham. B«p«, 249. 16 — Service of bill, dx. An infant should be served with the bill before the return of the notice of application for the appointment of guardian, otherwiM no- tiee of the application will have to be reserved. Robiruon v. Vol- ton, 1 Cham. Bep., 257. SU iNFAMCT-^lNrANT. HABEAS COBPUS. A judge in ohambt rs under orders of 1853, is [authoriitd to gnat ft writ of haboti oorpos. Re PaUm, 4 Of ant, 147 21 ■i ■ . 7" 260 rVl EQUITT DIGEST. HEARINa. See Taylor's chancery orders as to, before single judge in fint instance, 9 ; order of, 9 ; when cause set down for, 213, 218 ; notice of, to be given to registrar, 218 ; pro con, defendant may appear on, 78; on what lerms, 78; by consent on affidavits, 93; in pro con, foreclosure suits, 111, 112, 221; none in suits for foreclosure re- demption and sale, 221 ; when defendant may set down for, 193 ; effect of default of defendant at, 193 ; dismissal by plaintiff after no* tiooof, 194; on further directions when to be set down for, 195; solicitor to attend at, 199; to bear costs of default, 200; to follow examination, 220 ; evidence to be used at, 220 ; schedule of exhibits at, to be made, 200 ; pleadings, how transmitted to, 168, 220 ; fees on, 220; forms of notices of, see index of forms, 295, 296, notice of in error and appeal, 250. HEIR AND DEVISEE COMMISSION. Repeal of patent. The heir and devisee commission having reported that the heirs at law of A were entitled to a patent of certain lands in the Indian Re- serves, Charbttenburgh. The governor in council afterwards, upon a report of the solicitor-general in favor of B, a brother of A, issued a patent to B for the lands. The heirs of A thereupon filed a bill to have the patent set aside, and a new patent issued to themselves, up- on the ground of the patent having been issued to B under an error. The Court having found there was no error of ^faot, hehl, that the patent was properly issued to B, notwithstanding the finding of the commission. McDiartnid v. McDiannid, 9 Grant, 144. Semhle. The Court may, in a proper case, set aside a patent issued upon the finding of the heir and devisee commission, lb. Sis Gramt from the Cbown— Lessor and Lessee. HEIRS. Where the decree is for the administration of real estate, all the heirs must be served with an office copy of the decree, but are not to be made parties, or served with the proceedings in the master's office; though any of them may by notice require to be so served, if they desire it. English r. English, 12 Grant, 441. The rule ii the same when some of the next of kin or heirs are infknti. lb. EQUITY DIGEST. 261 HIGHWAY. Diversion of. Semble. That under the provisions of the Provincial statute 14 sod 16 Viot., 0. 51, a permanent diversion of a highway may be made upon the oonstruotion of a railway, where it is necessary or expedient. The Municipalihj of Fredericksburgh t). The. Grand Trunk Rail- way Co., 6 Grant, 555. This Court has no jurisdiction on the ground of public nuisance to enforce by injunction the ordinary repair of a highway, or to re- fltrain an Incorporated Koad Company from suffering a road to continue out of repair; assuming such a jurisdiction to exist, the attorney general does not seem to be the proper party to sue. Ai- tomty Genernl v. Weston. P. R. Co'y, 4 Grant, 211. See Building Lots — Injunction— Spbcipio Pbbpormanob, 50. HUSBAND AND WIFE. )—Qift to ivife. The only proof of the receipt of certain moneys by the wife, during the life time of her husband, was in her own evidence, when at the eame time she stated the money had been given to her by the hus- band, the Court considered her entitled to retain the amount, and that it formed no part of the testator's personal estate. Mc Edmunds V. Ross, 6 Grant, 373. 2— Assignment of mortgage to ulfe. The holder of a mortgage security while labouring under an attack of sickness, of which he subsequently died, indorsed on the inden- tare a memorandum, assigning the same to his wife for the benefit of herself and children, which he signed, but did not affix his seal thereto, although the memorandum expressed it to be under seal. Held, that the wife took no interest under such assignment, either as a gift inter vivos or as a donatio mortis causa, and a bill filed by her to compel the executors to execute a formal assignment of the mortgage, was dismissed with costs. Tifany v. Clarke, 6 Grant, 474. 3 — Separate answer. Husband and wife being defendants to a suit of foreclosure, in re> spect of property belonging to the wife, the husband put in an aniwer alone, and the plaintiff moved to take the ansyfer p£f the files fo^ ■ n ;":■ 252 EQUITY DIGEST. V H <'\ -ilk IH irregularity, and to take the bill pro rz.if^sso against the huibtad which was refased with costs. EUtoit v. Hunter, 1 Cham. Rep., Ifig. 4 — Service of notice — How effected. Where a husband and his wife arc defendants, service of a notiot of motion upon the wife, will not ke a good service on the husband unless made at the dwelling house of the husband. Heward v. Mag. ahay, 1 Cham. Kep., 366. 5 — Deed of separation. Although the policy of the law is to induce a man and wife to re- sume co-habitation, notwithstanding they may have agreed to a ma. aration, and that on such renewal of co-habitation, a deed of separation will be held void ; still where property was conveyed to i trustee for the support and maintenance of a wife and her children in settlement of a suit for alimony, and the husband and wife after- wards renewed co-habitation, but the husband subsequently deserted his wife and family, the Court refused at the instance of the husband to'set aside the deed. McArthur v. Webb, 13 Grant, 303, See Wife, 2— Will. IDENTITY. Proof of identity of party served with hill. It is not sufficient proof of the indentity of a party served oat of the jurisdiction that the deponent to the affidavit of service swca that he served '' the above named defendant." The affidavit i shew the means of knowledge. Armour v. Robinson,! Ghzm. 252. Proof of identity of party served with hill. The admission of a person served with an office copy of the biii that he is the proper party named in the bill, is not sufficient proof of the identity of the person served with the defendant. Siihon r. Kennedy, 1 Cham. Rep., 236. IMBECILITY. See Deed, Setting Aside. IMPROVEMENTS. 1 — Raids and profits. Semhie, that when a mortgagee is charged with rents and profits received from improvements made by himself, it would be unreasoD- ible to refui MTiespondin The allo^ Chancery A d«r all the c master to t where the i had allowed nable impro mortgaged golely nncl^ referred 'lie disallow sue 3— r^3 pi gee in j on. Where a mental tree the mortgaj ehased and on '"♦h< time of rede gale, uo'-^^r ed by ae brother, ai neoted wit! improvemc purchase a property ; case one o cctions to some impi fore such allowable ing of the port on it been mad SlsD ww^ EQUITY DIGEST. 253 •bl« to refuse to allow him the expense of luoh improvements to * corresponding amonnt. Constabfe v. Guest ^ 6 Qnmt, 510, 2— Payment of. The allowance for improvemeots under the 11th Clause of the Gbtncery Act (Wm. IV, oh. 2,) is discretionary with the Court un- dsr all the circumstances. Where therefore upon a reference to the master to take the usual accounts under a decree for redemption where the mortgage had hecome absolute before 1837, the master had allowed to the mortgagee in possession, the price of certain val- liable improvements, amongst others building a brick dwelling on the mortgaged premises, the master stating that he made such allowance lolely under the provisions of the statute. The Court of appeal referreJ ' ae matter back to the master, leaving it open to allow or disallow such improvement. Harrison v. Jones, 10 Qrant, 99. ^—The principle upon which improvements hy a mortga- gee in possession are to he allowed, considered and acted on. Where a mortgagee in possession had planted out fruit and orna- mental trees, suitable for carrying out improvements commenced by the mortgagor, he was allowed the price at which the same was par> chased and a reasonable amount for care and cultivation since setting on ^"* he was refused his claim to be paid the value thereof at the time of redemption. ^ A mortgagee in possession purchased at sheriff's sale, an^'^^r an execution issued upon a confession of judgment sign- ed by ae. administratrix in favor of the mortgagee who was her brother, and acting as her counsellor and agent in the matters con< neoted with the intestate's estate, and who thereupon made large improvements on th*^ mortgage premises under the belief that his purchase at sheriffis sale had vested in him the absolute fee in the property ; under these circumstances the Court considering the case one of some hardship on the mortgagee, refused on further dir- ections to send th'^ case back to the master although it was probable some improvcmento had been allowed for which had been made be- fore such purchase at sheriff's sale, and which were not in strictness allowable as between mortgagor and mortgagee ; the party complain- ing of the allowances not having objected to the report, and the re- port on its face not shewing at what periods the improvements had been made. Paul v, Johnson, 12 Grant, 474. Six Distribution— Mortqaoe. p*^ ^n^T^ 254 EQUITY DIGEST. 1 IMPROVIDENCE. 1. Where a woman of sixty years who had a first charge on prop, erty for her maintenance for life was induced to exchange it for i life lease of part of the property subject to conditions and burdeu which rendered the transaction an improvident one on her part, aod it appeared she was illiterate and dull of intellect and had no profet. siornd or other competent adviser in the matter, and did not in boon important respects understand the nature or effect of the transaction. Held, that it was not binding on her. McLanrin v, McDonald, 12 Grant, 82. 2 — Undue injluencc. An improvident deed obtained by a tavern i.eeper from a boarder who was greatly addicted to intemperance was set aside with costa. McGregor v. Boultor, 12 Grant, 288. INCOME. The rule as to allowing one third of income for alimony, how fat applicable to this country considered. McCulloch r, McCullorh, 10 Grant, 320. INCORPORATED COMPANY. 1 — Mortgage to. An insurance company was by its act of incorporation authorized to hold real estate for the immediate accommodation of the company "or such as shall have been bona fide mortgaged to it by way of se. onrity or conveyed to it in satisfaction of debts previously contracted in the course of its dealings, or purchased at sales on judgments which shall have been obtained for such debts," and having sold and con- veyed a vessel, took from their vendee mortgages on real estate for securing the purchase money. Held, that this was a transaction within the act of incorporation, the price of the vessel being a debt existing previously to the execution of the mortgage : and semhlt, that under the words of the act it was not as with banking institu- tions necessary to the validity of such a mortgage that any previous indebtedness should exist. The Western Assurance Company t, Taylor, 9 Grant, 471. 2 — Imperial act 7 and 8 Vict, 10 — Liabilities of stock- holders. The 68th section of the Imperial statute 7 and 8 Vict., ch. 110 provides a summary proceeding whereby a creditor on any company inflorporated estabUshing I game, ratj oai inBe, acoordit Upon such an dent in this favor : ftcZi/, i proceedings ii biUnte.) Pt 422. ^Parties. Where the the funds of cannot be sua cept the direc acts of the di have a right t inch proceedi Grant, 1. Where, by purchase the ( general is not the directors < ter in dealing hating anawe; the directors, Ih. See Mini In a foreol and an imme any reference other incum^ Grant, 590. Where th there is a dii ■| i' EQtJI^t i)lGEST. 255 ineorporated thareunder, who has obtained a judgment or decree establishing his claim against the company and failed to realize the game, may call on any shareholder or shareholders of the company as representing the company, and liable for its acts by motion or other- irise according to the practice of the varioas Courts to pay his oliilm Upon such an application against certain of the shareholders resi- dent in this country by a creditor who had obtained a decree in his fgfor: held, per Vankoughnet, C, that the statute did not apply to proceedings in the Courts of this Province. (Spragge, Y. C du- bitante.) Fenley v. The Beacon Assurance Company, 10 Qrant, 422. ^Parties. Where the directors of an incorporated company misappropriate the funds of the corporation, a bill against them as the company cannot be sustained by some of the stockholders on behalf of all ex- cept the directors, the company must be made plaintiffs, whether the acts of the directors arc void or only voidable, and the stockholders have a right to make use of the name of the company as plaintiff) in iBch proceedings. Hamilton v. The Desjardin Canal Company, 1 Grant, 1. Where, by the act of incorporation, the company is authorised to poichase the corporate estate on payment of its full value, the attorney- general is not a necessary party to a bill by the stockholders against the directors complaining of improper conduct on the part of the Ut- ter in dealing with the corporate funds. In such case the defendant haying answered admitting certain moneys to have been received by the directors, a motion to pay the amount into Court was ref\iwd. lb. INCORPOREAL FREEHOLD. See Mineral Lands. INCUMBRANCE. In a foreclosure suit where the mortgagor is the only defendant, and an immediate decree is taken against him, by con^nt, without any reference or day of payment, a reference cannot be directed aa to other incumbrancers not named in the bill. Taylor v. Ward, 13 Qrant, 590. • Where the master is directed to inquire as to incumbrances and there is a dispute between two or more persons as to who are entitled >Vf ' ■ n '^^1 fpf' I* i "i *' fa i i Uf u ^ ^11 *n i^'.l i J h m n.- I'f 256 EQUITY DIGEST. to one of the incumbrances, it may, according to circumstances be his duty to decide the question himself, or to report the incumbrance, its priority as respects other incumbrances and the dispute between the claimants so that the Court may give proper directions for de- termining the question. McDonald 4* Wright, 12 Grant, 552. Referenice as to — Ojffice copy decree. In proceeding under the orders of February 1858, to^make incua. brancers parties to the cause, the plaintiff must serve the incumbran- cers with office copies of the decree duly stamped. Elliott v. Helliwell Fehan v. Hays, 1 Cham. Rep., 6. See Taylors Gh. Orders as to. Priority of, need not be determined before sale, 108; prior when to be made parties, 197 ; subsequent to be added by master, 197 198; evidence on which made parties, 192, 198, 332; to be serred with office copy of decree, 197 ; effect of failing to appear, 198 ; form of notice to, 317, 318 ; bill of costs of, 331. Sex Master's Office. INDEMNITY. SlE MOBTGAGEB. INDEPENDENT COVENANT. Hunt V. Spencer, 13 Grant, 744. Sib Snoifio Pirfobuanoe. INDIAN LANDS. Under the statute 2 Vic, c. 15, s. 1, parol testimony by one wit non, deposing to the best of his belief only, to the appropriation of the lands in question to the residence of Indian tribes, and to the nonceasion of such lands to Her Majesty, is sufficient prima fade e^dence of those faets. The Queen v. Strong, I Grant, 392. In regard to lands in the occupation of the Indians, it is unnecessary in the proceedings of the commissioners under the statutes 2 Vio., o> 15, and 12 Vic, c. 9, or by express evidence, to negative the esotp* tions specified in the latter of these statutes, lb. The finding of the commissioners, under these statutes, is not bad for not adjudging that possession should be relinquished by the \m- pener. lb. Ssi Pftif ^dmintetratioii i Affld»Tlt,4(l). • Arbitration, refe Bound by pftcet Corti,6,7,21. DM to »hew cau Kntltllntr papers ftwuiry whethe Schange of lan^ Foreclosure, 18, Form of decree. Guardian ad lite << testam juriadiction, 1. Lien, 10. . Hiintenance and l^Jurisd The Cour fants in the statute rclut Where an estate in fee per Canada, disposition o for the main any port of I to depreciati substantiall) sale, or the 1 real estate, ( Court, or on any person : and with su may order tl 12 Vie., c. ' But no s( provisions o devised or g The appl friend, or b of the infan 0.72,8.1. Where tl executed bj 2 ■ , '1 ^ EQUITY DIGEST. INDORSEE. Sbi Principal and Surety. 257 INFANTS. AdminiBtration suit, 15. AlBd»Tit.4(l). Arbitration, reference to, 20. Bound by pfoceeding-s, 14, Coati, 6, 7, 21. Day to ihew cause, 3, 9, 28. Bntitlingr papers, 29. . . , „, Biquiry wijether sale beneficial, 27. bcnange of lands, 20. Foreclosure, 18, 31. Form of decree, 31. Guardian ad litem, 7, 19, 22. " testamentary, 8. Jurisdiction, 1. Lien, 10. Maintenance and education, IG, 19. Money investing^ for, 17. Notice, service of, 4. Order 77, 2. Partition, 12. Person of infant, 4 (2). Practice as to, 88. Reference to arbitration, 26. Sale, 1, 5, 11, 12, 13, 23, 24, 25. Securing money for, 32. Sen'ioe of notice, 4. Specific performance, 6. Stat. 12 Vic, 1, 23, 24. " 13Eliz.,21. " 11 Geo. IV, and 1 Wm. IV., 80. Vendor and Vendee , 10. Wageg, 21. \— Jurisdiction — Stat. 12 Vic — Sale, (L-c. The Court shall also have jurisdiction respecting the custody of in- fants in the cases, and subject to the provisions mentioned in the statute relating to the custody of infants. Where an infant is seized, or possessed of, or entitled to any real estate in fee, or for a term of years, or otherwise, howsoever, in Up- per Canada, and the Court is of opinion that a sale, lease or other disposition of the same, or of any part thereof, is necessary or proper for the maintenance or education of the infant, or that, by reason of any part of the property being exposed to waste and dilapidation, or to depreciation from any other cause, his interest requires, or will be substantially promoted by such disposition, the Court may order the sale, or the letting for a term of years, or other disposition of such real estate, or any part thereof, to be made under the direction of the Court, or one of its officers, or by the guardian of the infant, or by any person appointed by the Court for the purpose, in such uanner and with such restrictions as, to the Court, may seom expedient, and may order the infant to convey the estate as the Court tliinks proper. 12 Vic, c. 72, s's. 1, 2 ; 13, 14 Vic, c. 50, s. 8. But no sale, lease, or other disposition shall bo made against the provisions of any will or conveyance, by which the estate has been devised or granted to the infant, or for his use. 12 Vic, c. 72, s. 2. The application shall be in the name of the infant by his next friend, or by his guardian; but shall not be made without the consent of the infant if he is of the age of seven years or upwards. 12 Vic.> o.72,s.l. Where the Court deems it convenient that a conveyance should be exflOQted by some person in the place of the infant, the Court may 2i nil' pp V I r'*''.' -p^ 'W^SM ii'-. :l ' '^ ■'''>' I 258 EQtriTY DIGEST'. 4 li I direct some other person in the place of the infant to convey the estate. 12 Vic, c. 72, s. 3. Every such conveyance, vhethcr executed by the infant or some person appointed to execute the same in his place, shall be as effectu- al as if the infant had executed the same and had been of the age of twenty-one years at the time. 12 Vic, c 72, s. 3. The money arising from any such sale, lease, or other disposition shall be laid out, applied and disposed of in such manner as the Court directs. 12 Vic, c 72, s. 4. On any sale or other disposition so made, the money raised, or the surplus thereof, shall be of the same nature and character as the estate sold or disposed of, and the heirs, next of kin, or other repre- sentative of the infants, shall have the like interest in any surplus which may remain of the money at the decease of the infant, as they would have had in the estate sold or disposed of if no sale or other disposition had been made thereof. 12 Vic, c. 72, s. 5. If any real estate of an infant is subject to dower, and the persou entitled to dower consents in writing to except in lien of dower any gross sum which the Court thinks reasonable, or the permanent in- vestment of a reasonable sum in such manner that the interest there- of be made payable to the person entitled to dower during her life; the Court may direct the payment of such sum in gross or the in- vestment of such other sum out of the proceeds of the sale of the real estate of the infant. 12 Vict. ch. 72, s. 6. Con. Stat. U. C, 56 2 — 77^^ order. Held, per cur, Spragge, V. C, disaentientc. That in suits against infant defendants, the Court would make a decree for summary ref- erence to the master under 77th order of May, 1850, the decree however directing, that in the proceedings before the master, the plaintiff should be obliged in the first instance to prove the execution of the conveyance. Creelman v, Cle/ford, 2 Grant, 213 3 — Day to sheiv cause. Upon the re-hearing of a cause where the decree of foreclosure did not reserve a day to the infant. Held per cur. Bla/ce,^V. C, dissen- tienie, that in decrees of foreclosure against infant defendants, a day to shew cause after attaining 21, must be reserved to the defendants. Mair v Kerr, 2 Grant, 223. (Affirmed on appeal 26th February, 18&2.) 4— /Seryic The subi dianhad b vere residii pliiatiff to i'llng aj§ (1) On the twenty tanle) perrai to be filed a Jones, 2 Or Person of (2) Thi pointed by t and order t ofeuch gua out of the ji ing the infa h—^ale oj The Cou merely beca the estate w payment of i The Cot of an infan' without req Qank of U. Q—Specifli The gene the infant 1 Commander 7— Costa The sam( guardian ao anoe seems money has : guardian's ( ' -^m ^W T^ EQUITY DIGEST. 259 ^—Service of notice. The subpoena and notice of motion for the appointment of a guar- dian bad been served on tbo person with whom infant defendants were residing, this was considered sufficient service to entitle the pliintiflf to move. Bowman u. Beckett, 2 Grant, 556, F'Jtwj affidavit. (1) On motion for the appointment of a guardian nd litem, under (he twenty first order of May, 1850, the Court (Esten, V. C, duU- tante) permitted an affidavit, shewing that the defendants were infants to be filed after the day named for motion to'be heard. Freeholp v. Jones, 2 Grant, 581. Person of infant. (2) The Court will upon the petition of the guardian duly ap- pointed by the Court of Probate or Surrogate interefero summarily, and order the person of the infant to be delivered into the custody of 6uch guardian, when there is danger of the infant being removed ontof the jurisdiction,'^ although no suit is pending in Court respect- ing the infant's estate. Re GUlrie, 3 Grant, 276. 5— Sale of real estate. The Court will not direct a sale of real estate of an infant, merely because the ancestor was indebted ; it must be shewn that the estate will sustain loss, or that the creditors are about to enforce payment of their demands by suit. Re Boddy, 4 Grant, 144. The Court, where it is considered beneficial to the interest of an infant defendant, will direct a sale instead of a foreclosure, without requiring any deposit to cover the expense of such sale. Bank of U. G. v. Scott, 6 Grant, 451. Q— 'Specific pe)foniiaiice arfainst — Costs. The general rule is that in suits for F^-ocifio performance against the infant heirs of vendors, the decree should be without costs. Commander v. Gilrie, G Grant, 473. 7— Costs of (juardian ad litem The same rule as to the costs of a solicitor appointed by the Court guardian ad litem to infant defendants in suits for specific perform- ance seems applicable as in mortgage cases, but where the purchase money has not been paid, the Court will direct the payment of the guardian's costs from it. lb. fT'.'lH 260 EQUITY DIGEST. V( '■'-''M^ I U! 8 — Testamentary guardian. Although the Court is in the habit of paying respect to the vishei and directions of a testator, in reference to the guardianship and oare of his children, it will not) do so where it is clearly shewn that a compliance therewith would be prejudicial to the happiness and moral traininc; of the infants. Anonymous, 6 Grant, 632. 9 — Day to shew cause. In a decree against an infant defendant as trustee of real cstatc,it is not necessary to reserve a day for the defendant to shew cause after attaining twenty-one. Lake v. Mcln/osh, 7 Grant, 532. A suit to redeem a mortgage alleged to have been created by an absolute deed was instituted against the infant heir of the mortgagee the question raised by the pleadings was whether the transaction was a mortgage or sale, which at the hearing wa^; decided in favour of the plaintiff, and the infant was ordered toreconvey. On his attaining twenty-on3. an application was made for leave to put in a further answer and make a new defence, which was refused. (Spragge, V. C.> dissenting.) lb. 10 — Vendor and vendee — Lien. The defendant a minor purchased uu estate, and gave the vendor a mortgage for the purchase money, the mortgage was afterwards as- signed to the plaintiff, on coming of age the defendant repudiated the mortgage but adopted the purchase by bringing an action to re- cover possession. The mortgage being the deed of an infant, was holden absolutely void, but it was also holden that the mortgage being void a lien for the purchase money resulted to the vendor, and that such lien passed to the plaintiff by assignment of the mortgage. Grace V. Whitehead, 7 Gtaul, 591, 11— Sale. Where a contract for the sale of an infant's estate had been ap- proved of by the Court, it was holden unnecessary for the purpose of obtaining a decree for specific performance either to allege or prove that the sale was a proper one under 12 Vict., ch. 72. McDonald V. GarreU, 8 Grant, 290. 1 2 — Partition — Sale. Where on the hearing of a cause for partition of lands, it was shewn that the estate was of such a nature that it could not be divided with- out prejudice to the owners, the Court without waiting for any return ta that effe( manner. ^ l^^Scde. Sale orde mortgage. The gent an adult bo allv. Bell, Xh—Adin On a bill suit (after i on the grov that suit as one solicito wilful negl< terial differ tions as to purchase b; able portioi oollusion ; i declared th: was entitlec the same ic it appearinj pose have I this extent ested in th Court desii bill, but UE of all parti \%—Mak Althoug principal n still, iu a p vancement VJ—Invi In cases Oanada, tl ^wm. EQUITY DIGEST. 261 to that effect, ordered the lands to be sold by the master in the ninal manner. Bennett v. Bennett^ 8 Grant, 446. n^Sale. Sale ordered without requiring deposit in a suit for fore'ilosure of mortgage. Lawrasonv. Fitzgerald, 9 Grant, 371. 14 — Bound by pvoceedings. The general rule is clear that an infant plaintiff is equally with an adult bound by proceedings in a suit instituted by him, MeDovg- aUv. Bell, 10 Grant, 283. 15 — Admi)iistratlo)i suit. On a bill filed by one of two infaut plaintiffs in an administration suit (after attaining majority,) seeking to impeach the proceedings on the ground of fraud. Held, that the fact that the plaintiff in that suit as also the trustees and executors had been represented by one solicitor ; the omission from the decree of any direction as to wilful neglect or default on the part of the defendants therein ; a ma- terial difference between the decree and the decree on further direo- tioDS as to the lands directed to be sold for satisfaction of debts, a purchase by the solicitor so acting for the several parties of a valu- able portion of the estate, did not of themselves evidence fraud and oollusion ; and the plaintiff having in the same bill asked to have it declared that certain lands were held in trust for him and that he was entitled to a conveyance thereof, or an order of the Court vesting the same in him, and to have certain title deeds delivered up to him, it appearing that the plaintiff would in a suit framed for that pur- pose have been entitled to this relief, made a decree in his favor to this extent, notwithstanding tho misjoinder of parties not inter- ested in this portion of the relief prayed who did not object ; the Court desiring not to put the plaintiff to the necessity of filing a new bill, but under the circumstances ordered the plaintiff to pay tho costs of all parties, lb, 16 — Maintenance and education of. Although the general rule is that the Court will not break in upon principal money for the maintenance and education of infant legatees, still, in a proper case the Court will so apply it as well as to the ad- vancement of the infants. Ashbough v. Ashbough, 10 Grant, 430. 17 — Investing moneys for. In oases where, if money belonged to an infant residing in Upper Canada, the Court would invest it for the benefit of the infant, tho ■r-'Sit \ ■■%' 262 EQUITY DIGEST. 4»s Oourt will, where the infant is resident in a foreign country, direct the moneys to be invested for his benefit in the securities of such foreign country. Sanborn v. Sanborn, ll Grant, 359. 18 — Foreclosure. Where a bill by a mortgagee against the infant heir of the mort gagor prays a foreclosure, and the Court, for the protection of the infant, directs an enquiry whether a foreclosure or a sale is more for the benefit of the infant, it is not necessary to direct the master to make the executor of the mortgagor a party in his office in case of the master's opinion being in favor of a sale. Tntst. and Loan Co. v, McDonnell, 12 Grant, 196. 1 9 — Guardians — Ma inte nan cc. In a suit for the purpose (amongst uther things) of having a guardian appoir ted, it is not the course of the Court to direct a ref- erence to the master to appoint a guardian, but only to approve of one to be afterwards appointed by the Court if it sees fit. In a suit for maintenance out of the property of the infants, the master is usually directed to inquire and state what would be a prop- er sum to allow, but no authority is given for the payment until the report is brought before the Court for its approval, the object being the more effectual protection of the interest of infants. It is irregu- ler to give a reversionary guardianship of wards in Court to the seccessors iu office of any named person. Murphy v. Lamphier 12 Grant, 241. 20 — Exchange of lands. An exchange of lands by an infant is not void but voidable only, and as such may be rendered valid by acts of confirmation. Where therefore a party said to have been under age and intoxicated when he made an exchange of lands, continued, after coming of age in po- ssession of the property received in exchange and afterwards sold or exchanged it for other property, it was considered such confirmation as barred those claiming under him from impeaching the transaction. Miller r. Ostrander, 12 Grant, 349. 21 — Right of infant to his vxiges—Stat. 13 Elis. ch. 5 — Lease for life to debtor— Costs. Where a minor enters into a contract of hiring, the wages he earns belong to him, and not to his parent. In August, 1861, J B, being indebted jointly with W B to T, in the sum of £88, for which judgment had been recovered, and to one E in th ifgg not thei ation of his life to J B, thereof. B him in satis an elder br( to T, who r jointly witl note remain June, 1862 lease to his the purpose tion. In t indebted to filed a bill t ute of Eliza to BB coi voluntary, i as against I life lease to himself to c Jane, 1862, an unreasoi An agree arising out Grant, 569, 22—Appc The pro\ the effect of appointoien 2^— Statu In apply mother, by the convey! ed in her u 24 In< governed b; fort, but wl a sale of a TT— TSl EQUITY DIGEST. 263 one B in the sum of £10 agreed with B B who was his son, and yns not then of age, to convey to him 100 acres of land, in consider- ation of bis assuming of T's judgment, and of his making a lease for life to J B, or J B's wife of 25 acres of land being the arable portion thereof B B was then the holder of a due W^ for £20 given to him in satisfaction of wages earned by him a a hired servant with an elder brother, and in pursuance of the agreement transferred this to T, who received payment thereof, and also made a promissory note jointly with J B and W B for the balance of T'a claims, which note remained unpaid. No conveyance was executed by J B until June, 1862, and no life lease until March, 1865, when R B made a lease to his mother for life, it being made to her and not to J B for the purpose of preventing J B'e creditors from taking it in execu- tion. In the winter of 1861, and spring of 1862, J B became indebted to the plaintilF, who afterwards recovered judgment, and filed a bill to set aside the transaction as fraudulent within the stat- ute of Elizabeth. Held, under the circumstancps that the conveyance to B B could not be deemed voluntary, but that the life lease was voluntary, and must be set aside. The bill was therefore dismissed as against R B, but without costs, as by his conduct in making the life lease to his mother with the object mentioned, he had disentitled himself to costs, and as the plaintiffs idea that the conveyance of June, 1862, was not in pursuance of an anterior agreement was not an unreasonable one. An agreement may be allowed to stand, although a voluntary deed arising out of it may bo set aside. Delcsdernier v. Burton, 12 Grant, 569. 22 — Appointment of guardian to infant. The provisions of the recent statute 22 Victoria, c. 93, have not the effect of excludiug the jurisdiction of this Court, in respect of the appointment to infants. Re Stannard Infants, 1 Cham. Rep,, 15. 23— Statute 12 Vic, c. 72— Sale. In applying for the sale of real estate settled upon infants, the mother, by whom the applicoiion was made, was required to join in the conveyance for the purpose of surrendering the life interest vest- ed in her under the settlement. Re Kennedy, 1 Cham, Rep., 97. 24 In directing the sale of infant's real estates, the Court is not governed by the consideration of what is most for their present com- fort, but what is for their ultimate benefit. The Court will order a sale of a portion of an infant's estate to save the rest when it is I i 264 EQUITY DIGEST. >t3lti made to appear for the benefit of the infant. Re McDonald, 1 Oham. Rep., 97 ; 1 Grant, 90. 25 — It must appear clearly that the master reports a sale to beD^ fioial for infants before a final order for sale will be made. Edwardt V. Burling, 2 Cham. Rep., 48. 26 — Reference to arbitration. An application was made in this case hy. Strong, Q. C, on behalf' of the plaintifif, for an order referring it to the Master of the Court to ascertain whether a submission to arbitration would be for the benefit of an infant defendant. This being the first application of the kind in our Courts, his Lordship Y. C. Spragge, took time to consider the matter, and, after doing so, decided to grant the order applied for, on the grounvi that the established practice in England was in its favour. The effect of this order would be, of course, to bind the infant by the award, and this is the only way in which an infant can be bound by a submission to arbitration without the aid of an Act of Parliament. Allan v. O'Neil, 2 Cham. Rep. 22, 27 — Enquiry whether sale beneficial. On motion for decree in this cause his Honor V. C. Spragge decided that infant defendants are not entitled, as a matter of course, to an enquiry as to whether a sale or foreclosure is most to their benefit but that some grounds must be shewn, and directed an affidavit to be filed. [There appears to be some difference of opinion upon this point, the general understanding among the profession being differ- ent from the view above expressed.] Graham v. Davis, 2 Cham, Rep. 24. 28 — Day to sheiv cause. It was held in this case by the Chancellor that when a decree had been made against the ancestor of infant defendants in a suit revived against such infant defendants, that the decree having been made in the life-time of the ancestor, it was not necessary to insert in the final order a day to the infants to shew cause. The decree being binding on the ancestor, must be so on the infants ; and he observed that it was, he thought '' originally intended to give the infants a day to shew cause, where a conveyance was required from him, and this seems to have been extended to foreclosures of his mere equi^," Sutherland v. Dickson, 2 Cham, Rep., 25. ir^ ^rn EQUITY DIGEST. 265 29 — Entitling papers, <£*c. On aa application by the executor of a mortgagee, for the infant heirof a mortgagee to conyey after the executor has obtained a final order for foreclosure, the petition should be en titled, not in the oauae, but in the matter of the infant. Re Hodges, 1 Grant, 285. ^—Infant heir of mortgagee — 2 Geo. 1 and Wm. IV. Where a mortgagor dies intestate leaving au infant heir, after a decree for foreclosure, but before the final order, and his executor re« tiyes the suit and obtains such order, and the mortgage debt equals or exceeds the value of the mortgaged promises ; the infant heir is a person seized upon trust within the meaning of the English statute 2 Geo. IV and Wm. IV, ch. 10 s. 6., and may be ordered on petition without suit, to convey the estate to the executor or to a purchaser firom the executor, lb. In such case, however the Court will not itiake the order, unless it appears that the application of the estate in question is necessary for the satisfaction of the debts of the intestate, and a reference as to this will be directed. Jh. 31 — Foreclosure — Form of decree. Form of a decree upon a bill for foreclosure by a mortgagee against the infant heir or the mortgagor. Saunderson v. Caston, 1 Grant, 349. 22— Securing ononeya of The rule is that moneys belonging to infants are not ordered in equity to be paid to their guardian whether appointed by the Sur- rogate Court or otherwise, but are secured for the benefit of the infants under the authority of this Court ; but the rule may not apply where the amount is small, and is required for the maintenance, edacation, or other immediate use of the infants, or where some other qieeial circumstances exist justifying an exception to the general rule. Mtkell V. Riichty, 13 Grant, 445. 83 — Practice as to. See Taylor's orders, custody of, 19, 20, 269, 270; sale of, estate may be ordered, 20, 122 ; mode of procedure, 21, 122 ; none con- trary to devise, 21 ; how application for, to be made, 21, 122 ; pe- tition to be presented, 122 ; contents of, 122, 123 ; form of, 291 ; guardian may be appointed on, 21, 124 ; infant must be produced, 126; examined, if above seven, 124; petition to be verified, 124; iDttter may examine, 124 ; Court may order execution of convey* 2k "T^IPPPfiWI" 266 EQtJITT DIGEST. U ^1 ueef for, 21 ; effect of, 22 ; in what oaaei proper, 123 ; muter to settle, 163 ; money raised to be applied as Court directs, 22 ; qoalitj of moneys raised, 22 ; composition for dower allowed, 22 ; parties to suits, 46, 47, 48 ; order pro confe$so against, 78, 76 ; guardian ad litem to, 76 ; notice of application for, 76 ; how appointment made, 76; after decree, 187; on abatement of suit. 219; guardian, how appointed, 128; by master, 175; at infant's request, 185; where, left in care of, 270 ; to have a day to shew cause, 171 ; custody of, 269 ; delivered to mothers, on petition, 269 ; how order enforced. 269; exceptions, 270 ; form of foreclosure bill against, 276. SU FOEIOLOSURE— QlNBBAL ORDIRS— GUARDIAN— InVIST- MINT or MOMBT IN CoURT— MORTQAQK— PraOTIOB— SpkOIVIO PiRroRMANOB— Vendor's Likn, 2 INFANT. Su Infanct. INFANT DEFENDANT. See Ttustb— ^Trustee — Cestui Que Trust. INFANT PLAINTIFF. See Seouritt for Costs. INFANT'S ESTATE. See Sale. IN FORMA PAUPERIS. Master's fees. Where a party sues a defendant in forma pauperis, the masters and deputy registrars being officers of the Court, are not entitled to receive any fees from the pauper. Chambers v. Chambers, 1 Oham Rep., 238. INFORMALLY EXECUTED INSTRUMENT. See Volunteers. INFORMATION, FORM OF. An information in the name of the Attorney General not signed, by him, but on which was indorsed a fiat, '* let the within informa- tion be file( Atutmey Grant, 441 Sigwxtun There is Attorney ( Province o signature, I General, it r. Toronto Action at law, A(Bd»viU, 8, « Award, 0. Ad Interim, 11, Aoquxoirio lasters tied to Cham igned. forma- tion be filed," signed by the solioitor general. Held, irregular. The Attorney General v The Toronto Street Railway Company, 13 Grant, 441. INFORMATION. Signature to infcnination. There is no precedent for dispensing with the signature of the Attornej General to an information. Where in the absence from the PioTinee of the Attorney General, an information was filed without signature, but having endorsed thereon a fiat signed by the Solicitor General, it was ordered to be taken off the files. Attorney General V. Toronto Street Railway, 2 Cham. Rep., 165. INJUNCTION. Action at law, 10, 12, 61. Affidavits, 8, 88. Award, 0. Adinterim, 11, 23. Aoquiescencc in. 34, Action against officer of court, 44. AMitpieo in insolvency, 63, AMiessment acts, 60. Agreement not under seal, 67. Attachment, 70. Building society, 48. By-law of township council, 59. Breach of, 68, 70. Catting timber, 3, 72. Common injunction, 7. Contempt, 17. Corporation, 24. Co«t§,40,fll, 70,75. Creditor proviu),' in master's office selling under fl. fa., 4.5. Co-tenancy, 60. Damming river, 17. Defendant, at instance of, 73. Delay, 20. Division Court, 27. Divenion of highway, 37. Defendant, obtained by, 43. Discharge of surety, 06. Dnin diverting, 77. Kauitabic set off, 67. Fellingtimbcr, 1, 14, 18. IVaudulent prefcmnco, 46. Fraud— Further charges of fraud in amend- ed bill, 1(2.) Highway, 21, 37. InsoIv(iitActotl864. iDteHm, 11, 28. Laches, 48. Leasee, 30. Mortgagor and mortgagee, 12. Mortgage, 26. Mwtgager, 42, 03. I— Pendente lite. There are many cases in which a Court of Equity will interfere by injunction to maintain things in statu quo, pendente lite, not only where the title of the plaintiff to relief is unquestioned, but oven where that title is doubtful, provided the Court see that there is a substan- Mill dam, 31, Misapplication of rates, 50. Navigating river, 29. Vuisance, 34, 36. Offensive trade, 34. Obstruction of view, 58, Opening street, 6. Order to commit, 68. Partners, 25, 62. Pleading, 41, 66. Practice, 60, 04, 68. Principal and surety, 66. Pendente lite, 1. Party in poesession, against. 1 (1.) Paying money Into Court, 1 (3.) , Restraining execution, 6. ^ Riparian proprietor, 31, 49. Railway, 36, Rates, misapplication of, 60. Redemption, 67. 8aw logs, 2, 4, 20, 35. Soiling timber, 10. Steamboat, 32, 89. Sale of vessel, 29. Stoppage in transitu, 35. Servant, 65. Service of bill in injunction case, 76. Set off, equitable, 67. Sifpi, using restraining. 74. Suppression of material facts, 65. SUtutc 20 Victoria, 60. Tenants in common, 14, 22. Trade marks, 33, 71, 76. Trade flxturos, 52. Timber, cutting, 72 University, removal of professor, 64. Vendor and vendee, 16. Vessel, sale of, 29. View, obstruction of, 68. Warehousemen's receipt, 16. Waste, 13, 42, 55. 63, 72. ,^ , M '^n f.. ■ . • 'im ^■'li rn 268 EQUITY DIGEST. tial question to be settled. Atlomey-General i\ McLaughlin, 1 Grant, 34. Against party in possession. (1) But the Court does not interfere by special injunction agabit a party in possession claiming adversely to the plaintiff, nor on the other hand will the Court, as a general rule, so interfere in favor of a party in possession to restrain a casual trespass. lb. Further charges of fraud in amended bill. (2) An action on a bond for the rents of certain market fees frauds, &c., were pleaded, and upon a trial a verdict passed against the defendant, who, afler execution had issued, filed a bill for the purpose of having the bond declared void on the ground of fraud &e,, and for an injunction restraining proceedings on the execution. To this bill the defendant in equity put in an answer denying the allegations of fraud, whereupon the plaintiffs amended their bill, in- troducing further charges of fraud, filed affidavit verifying tho«e charges, and moved for the injunction prayed by the bill, the motion was refused with costs. Walker v. City of Toronto, 1 Grant, 502. Paying money into Court (8) Where a special iDiunction is granted staying proceedings at law, the amount claimed in the action at law must be paid into Court. Harrison v. Baby, 1 Grant, 247. Felling timber by mortgagee of a term of yearn. (4) The mortgagee of a term of years being in possession of the mortgaged estate, will, at the suit of the mortgagor, bo restrained by injunction from felling timber on the mortgaged premises, although the mortgagee may have obtained the consent of the reversioner to what he is doing. Chislwlm v. Sheldon, t Grant, 318. 2 — 8aw logs. The plaintiff contracted with two of the defendants for the manu- facture by them of five thoustand saw logs, to be delivered at the mouth of the river Trent, for which he was to pay partly by instal- ments during the progress of the work, and the residue when the logs should be delivered at the place designated ; and at the same time, or immediately afterwards, it was verbally arranged that the logs, as they were manufactured should be marked with the plaintiff's initials, and should be delivered to him as a security for his advances, without prejudice to the agreement for their being conveyed to the mouth of the river. The stipulated advances were duly made, and the logs a? EQUITY DIGEST. 269 nianafactared were marked with the plainti£f'B initials, but not otherwise delivered to him. Held, that the manufacturers could not afterwards dispose of these logs to the prejudice of the plaintiff; and having attempted to do so by selling and delivering them to a third person for value, but who had notice of the plaintiff's claim, an injunction was granted to prevent their removal by such person. fuller r, Richmond, 2 Grant, 24. ^—Cutting timber. In a suit by the original owner of land and his vendee (to whom no conveyance had been made) the Court upheld an injunction re- Btraining an occupant of the land, and a person to whom such occu- pant had contracted to sell the timber on the lot, from cutting down the timber on the lot, such occupant having gone into possession un- der the owner, though it did not appear that such timber was of any particular value to the plaintiff, and though the affidavits were con- tradictory as to the occupant having had authority from the owner to sell the timber. Lawrence v. Judge, 2 Grant, 301. i—Saio logs. An ezparte injunction had been granted to restrain the defendants until further order from interfering with certain saw logs in the Sal- mon river, and which the plaintiff claimed as his, the defendant having, notwithstanding, obtained possession of the logs ; a motion to extend the injunction so that, in effect, the plaintiff might receive possession of the logs from the defendants was retained until after issues should bo tried as to the plaintiff 's property in the logs, this being disputed by the defendants. Farewell v. Wallbridge, 2 Grant, 332. 5— Opening street. Where the town council of one of the towns mentioned in the schedule to the provincial statute 12 Vic, c. 81, were about proceed- ing to open a street without having first obtained the permission re- quired by the statute of certain parties owning houses on the land over which the intended street would pass, the Court granted an in- junction to restrain the opening of such intended street, upon a bill filed by a party whose land lay on the line of the intended street, al- though no house stood upon the plaintiff 's land, and his premises were not within the exception contained in the proviso to the 60th clause of the act. Wilsoti v. Town Council of Port Hope, 2 Grant) 370. Q—Reatmining execution. A mortgage had been created by an absolute deed of conveyance, vitb a bond of defeasance, a judgment was afterwards obtained :% k '•t F r- ^t Mis' 270 EQUITY DIGEST. against the mortgagee and an execution sued out against his lands. The sheriff, under the writ so issued, had advertised and was about to sell the mortgaged property. Upon a bill filed against the judgment creditor and the mortgagee, setting forth these facts, which were admitted by the defendants, the Court granted a special injunction restraining further proceedings under the writ. JSeil v. Bank of "« per Canada, 2 Grant, 386. 7 — Common injunct ion. Where the common injunction is obtained to stay execution it will have the effect of staying the sale under the execution, notwithstand- ing the writ may be in the hands of the sheriff at the time the injunc- tion issues. lb. Note, Common injunctions are now abolished. 8 — AffiAlavits must be candid. The aflSdavits on which an exparto injunction is applied for must (to guard against abuse of that process) present a candid statement of the whole case, and must set forth not only the facts which the plaintiff thinks to be material, but such as are in truth material to the determinatii ' of the application. An injunction obtained on affi- davits in which this rule is not observed will be dissolved on that ground alone independently of the merits. Ley v. McDonald, 2 Grant 398. 9 — Award. The Court will relieve against an award made between partners in ignorance on the part of the arbitrators and the remaining part- ners, that important transactions had not been entered by the other, the managing partner, in the books of the firm, in consequeace of which omission the award had been to a corresponding amount, too favorable to such managing partner. An injunction to restrain pro- ceedings on a judgment recovered at law, upon an award alleged to have been made under these circumstances, was continued to the hearing in a case in which the ultimate success of the plaintiffs at the hearing was not considered as wholly free from question, the amount of the judgment being or dered into Court. Wilson v. Richardson, 2 Grant, 448. 10 — Action at Law. Where an action at law had been brought b" a building society against W as surety for the secretary of the building society, and W filed a bill to restrain the action at law, founding his equity on a re- golation or of director! his seourit wtf»agg«" said bond 1 Mr. T was place of th retolution : W'itlimon n—Ad Althougl restrain th< directed no subsequent fendants w the notice < 566. \i—Mort A sale o had been e gage deed, The first ri at law to r ed in his n mental bill his answer from what ] was not ex mortgagee, injunction took place. 13— Ifasi A purch failing to { time appoi committinj premises ii But see \^-Felli No inju in oases of EQUItt DtGEST. 271 eolation or minute alleged to have been passed or made by the board of directors in the following terms : <' That Mr. W had reqestedthat hiiBMurity for ^the secretary might be cancelled. * * * * It was suggested also that Mr. B W's name should be erased from the Slid bond by wish of the board, and both be relieved from securities. Mr. T was requested to submit two other names as securities in the place of the two gentlemen named." I'he Court held that such a reiolution afforded no ground for interfering with the action at law. Wittimore v. Ridout, 2 Grant, 525. II— Ad intenm. Although the Court had refused to grant an ex parte injunction to restrain the removal of certain chattels claimed by the plaintiff, and directed notice of motion to be given. An interim injunction was sabsequently granted, on an affidavit being filed shewing that the de- fendants were in ihe act of removing the property notwithstanding the notice of motion had been served. W-lmot v. Maitland, 2 Qrant, 556. 12,— Mortgagor and mortgagee — Action at law. A sale of the equity of redemption of certain mortgaged property had been effected under a power of sale contained in a second mort- gage deed, and pending a suit in this Court to set aside such sale. The first mortgagee, who was one of the purchasers, was proceeding at law to recover against the mortgagor; upon the covenant contain- «d in his mortgage deed, whereupon the mortgagor filed a supple- mental bill to restrain proceedings at law: The first mortgagee, in his answer to the original bill, insisted on the validity of the sale ; from what had taken place, it was doubtful whether the mortgage debt was not extinguished in equity, as between the mortgagor and the mor^agee, and the original cause being almost ripe for hearing, an injanction was granted to restrain the action at law until the hearing took place. Recs v. Beckett, 2 Grant, 650. Vi— Waste. A purchaser havint; entered into possession under his contract, and failing to perform his agreement, and to meet his payments after the time appointed for that purpose had arrived, was restrained from committing waste or removing timber already cut down upon the premises in question, Ferrier v. Kerr, 2 Grant, 668. But see post Smith v. Bell, 11 Grant, 519. H—Fell'mg timber — Tenants in common. No injunction will bo granted between tenants in common, except in cases of actual destruction. Semble, but where a tenant in oom- n IT! 272 EQUITY DIGEST. fc ii W'' mon of one moiety waa trustee of the other, under a will, and wu felling timber for his own benefit, in breach of his trust, he wu en- joined from doing so, it being considered that his rights of ownenhip on his own moiety were to be esercised in subordination to his dub as trustee of the other moiety. Christie v. Saunders, 2 Qrant, 670, 15 — Warehouseman's receipts. Where a warehouseman had delivered warehouse or transfer re- ceipts to a party for one thousand barrels of flour, and aftenrardi delivered out a portion thereof, at the instance of the party who had left it in his custody, on the understanding that the quantity so delivered out should be made up by other flour to be brought to his warehouse and it appeared that such a course of dealing, was in accordance \ritb the usage of the trade ; the Court refused an injunction to restrain the delivery of flour, subsequently brought by the same party to the warehouse, although such latter flour had been assigned bona fide to the plaintiff who had made advances thereon after it was stored, and although such flour had not been manufactured at the time of giving the warehouse receipts. Wilmot v. Maitland, 3 Grant, 107. 16 — Vendor and vendee of goods. This Court will restrain a vendor of goods from selling property previously contracted to be sold, if the vendee has not been negligent in carrying out his part of the agreement. McLean v. Coon$, 3 Grant, 112. 17 — Damming river — Contempt. In 1845 the plaintiff obtained an injunction restraining the defen- dant from suffering to continue any dam, whereby the natural flow of the rirer, on which they both had mills, should be interfered with, to the injury of the plaintiff's rights; to this bill no answer was ever filed, but a motion to dissolve the injunction was made and refused, and in the same year the plaintiff recovered a verdict against the defen- dant at law, in respect of the same matters ; an arrangement was then made between them that the dam should remain, and that each party should have the exclusive use of the water for a certain portion of every day, and this agreement was acted on for nearly seven yean, the defendant then began to make a limited use of the water all day, and contended that from some improvements he had introduced into the machinery of his mill, that tiiis would not interfere with the plaintiff's rights ; the plaintiff denied this, and moved to commit for contempt. Held, that the delay was no answer to the motion, that the defendant having abandoned the agreement, the plaintiff bad a right to fa priety of gi considerati oftheplaii fendant to obeyed the IS— FelU Where a report of cc ships,) but the Court o statute app fendant coc description to restrain the Court o \i—Sellh The Cou defendant f by the dfifei G63. 20— kS'aiw / Saw logs value,'' wit! likely to be and specific oes than alu ever must b il—High This Coi ance to enf or to rcstrai to continue Attorney G( tomey Gene The Coui to construct tioaing to c 2i EQUITY DIGEST. 273 right to fall back on his injunction ; that on thia application the pro- priety of granting the injunction originally was not a proper subject of consideration, and the Court being of opinion that the continuance of the plaintifif's dam was a breach of the injunction, ordered the de- fendant to stand committed in two weeks, unless in the meantime he obeyed the injunction. Gambler. Howland, 3 Grant, 281. 18 — Felling ihnher. Where a strip of land was vested in the plaintiff (according to the reportof commissioners appointed to run a line between two town- Bhips,) but the defendant claimed the property, and had applied to the Court of Queen's Bench to quash the report, pursuant to the statute appointing the commissioners, pending the application the de- fendant commenced to fell the timber alleged to be of a valuable description growing on the strip. The Court granted an injunction to restrain such felling until a decision of the motion pending before the Court of Queen's Bench. Christie r. /,o/i/y, 3 Grant, 630. 19 — Selliny tiniber impropevhi eat. The Court will restrain the attaching creditors of an absconding defendant from selling timber improperly cut upon land mortgaged by the defendant to the plaintiff. Thompson v. Croker, 3 Grant, 663. 20— Saw locjH—Dclaij. Saw logs cannot bo intended, prima facie, to be of '^peculiar value,'' without any evidence that they are so. But they are more likely to be of peculiar value than most, other descriptions cf chattels and specific relief may be given with respect to them in more instan- ces than almost any other sort of chattel property. The relief how- ever must be applied for promptly. Flint v. Corbu, 4 Grant, 45. il—High'wai/. This Court has no jurisdiction on the ground of public nuis- ance to enforce by injunction the ordinary repair of a highway, or to restrain an incorporated road company from suffering a road to continue out of repair ; assuming such a jurisdiction to exist, tho Attorney General does not seem to be the proper party to sue. At- torney General v. Weston P. R. Co^y., 4 Grant, 211. The Court, however, will restrain a company which is authorized to construct a plank or macadamized road from constructing or <3on* tinoing to oonatruct one of poles, lb. 2l 11*". 274 EQUITY DIGEST. 4 w, V t' '' 'I I ■'■1 if Where Buoh a company had already re-oonstruoted part of a road [which was out of repair,] with poles, without any objection on the part of the public, and there was contradictory evidence as to the quality of the road so made : but it appeared by adzing the upper side of the poles, which the company o£fered in Court to do, the road would be rendered sufficiently smooth, and that to be obliged to take up the poles would ruin the company ; an injunction for the remoTal of the poles was refused, lb. 22 — Tenants in common. One tenant in common will be restrained at the suit of a co-tenant from digging earth for bricks on the joint property. [Esten, V. C. dissenting.] Dougall v. Foster. 4 Grant, 319. 23 — Ad interim. The owner of land agreed to sell a portion thereof and admitted the party into possession, who improved the premises and afterwards offered to sell his improvements back to his vendor : and for the pur- pose of ascertaining the amount to be paid referred it to arbitrators who made an award, but its terms were never complied with, and the vendor afterwards brought an action of ejectment against the party in possession. The Court upon motion granted an interim in- junction restraining the plaintiff in ejectment from executing a writ of possession. Cook v. Smith, t Grant, 441. 24 — Corporation . The Canada Company through their agent resident in Canada, contracted by letter to sell certain lands of the company, upon con- dition, amongst others, of the vendee building a saw mill thereupon, the vendee proceeded with the knowledge of the agents of the com- pany to erect a saw mill, and construct a dam across a river, the effect of which was to overflow a large tract of land belonging to the com- paay ; subsequently the company conveyed the lands contracted for, and which were situate on both sides of the river across which the dam had been constructed, reserving the bed of the river and about 30 feet on either hink, the title to the bed of the river being then in the crown. Afterwards, the company 'laving obtained a grant from the crown of the bed of the river, instituted proceedings at law against the persons owning the mill for the damage done by the overflowing of the river, and recovered a verdict for £500, and other actions were also brought for the same injury. Upon a bill filed for that purpose the Court at the hearing decreed a perpetual injunction res- training the company from proceeding with the actions, and a con- veyance had been Iter V, Th 25— P«' The pi which the of goods w joint benef indemnify a confessio tiff meeting and defenc Court diss( ceedings u tion of the not been ct tiffin the c self under the amount amount of i tinned in i thought th( Foster, 4 G 2Q—xMor(i The solic of absolute premises, tl a decree nis mortgaged ] with the dc( however, th gagec, proc( gage premii the cause, r and ordered Williams, £ ll-Divis The plaii of the paris such a sum the old site, mw ■^■'mn EQUITY DIGEST. 275 veytnce of the bed of the river and the portions on either side which had been reserved, and ordered the company to pay the costi. Brew- ster v. The Canada Co., 4 Grant, 443. 2o— Partners. The plaintiff and defendant entered into au agreement, under which the defendant was to procure goods, or guarantee the payment of goods which were to be obtained and sold by th6 plaintiff for their joint benefit, in certain proportions, and the plaintiff to secure and indemnify the defendant against all loss in respect thereof, executed a confession of judgment, to be acted upon only in default of plain- tiff meeting the payment of such goods; the plaintiff made default, and defendant entered upon judgment, and sued out execution, the Court dissolved an injunction which had been issued, restraining pru- ceedings upon the execution so issued, although upon the construc- tion of the agreement, it was doubtful whether a partnership had not been created between the parties, but the defendant (the plain- tiffin the execution) having caused certain goods, provided by him- self under the agreement to be levied upon, the Court directed that the amount thereof at costs and charges should be deducted from the amount of the debt and costs, or that the injunction should be con- tinued in respect of that amount, (the Chancellor dissenting who thought the injunction should be continued to the hearing-) Watt v Foster, 4 Grant, 543. 2Q—Mort(jagf'. The solicitor of a mortgagee in a suit of foreclosure, after a decree of absolute foreclosure, purchased the mortgagor's interest in the premises, the decree so pronounced was subsequently set aside, and a decree nisi directed to be drawn up, directing mfrr aha a sale of the mortgaged premises, and that all judgment creditors should be served with the decree, and made parties to the suit ; notwithstanding this, however, the solicitor who was also a judgment creditor of the mort- gagee, proceeded upon his juvigment, and was about to sell the mort- gage premises under execution. The Court upon a motion made in the cause, restrained the solicitor from proceeding with his execution and ordered him to pay the costs of the application. Goodwin v. Wifliams, ^ Grant, 178. il— Division CoiU't. The plaintiff had subscribed a sum of money to aid in the erection of the parish church in the City of Toronio, with a view of raising such a sum as would enable the chuvohwardens to erect the church in the old site, so as to avoid leasing off portions of the land about tho. '%. 4 m 276 EQUITY DIGEST. Cil f J (1 il I J .K ohuroh, used as a burying ground. Subsequently at a meeting of tbe vestry, the plan of building was changed, by reason of which in making the excavations for the foundation of the church, the gravei of several members of the plaintiff's family were disturbed, thereupon the plaintiff addressed the vestry clerk a letter annulling his sub- scription, and refused to pay it. A suit having been instituted in the Division Court for the recovery of this subscription, a motion was made in this Court for an injunttion to stay such action. The Court under the circumstanctis refused the ap[;lication with costs. Qumre. Whether the Court will in any case grant an injunction to restrain an action in the Division Court. Reward v>. Harris, 5 Grant, 226. 29 — Sale of vessel — Restrain iiuj navirjatinij fiver. The owner of several steamers who was carrying on business as i forwarder, sold one of them to another forwarding firm, and upon the sale covenanted that ho would not directly or indirectly have any in- terest in any vessel navigating the St. Lawrence, below Ogdensburg at any time thereafter, and also that he would not dispose of two other steamers then owned by him to any person or persons for the purpose of navigating the St. Lawrence bolow Ogdensburg, afterwardi the proprietor transferred his business as forwarder, and sold the two other steamers to persons having full knowledge of this covenant, who notwithstanding commenced running the vessels on the St. Lawrence below Ogdensburgh. Upon a bill filed for that purpose, the Court held the owners bound by the covenant entered into by the original proprietor, and granted an injunction restraining them from naviga- ting the river below Ogdensburg with those vessels. Holcomb v, Nixon, 5 Grant, 278 and 373. 30 — Lessee. A lessor demised property for a terra of years, with a stipulation that the lessee would not carry on any business that would affect the in- surance. The lessee made an under-lease, omitting any such stipu- lation, and the under-lessee commenced the business of rectifying high-wines. Upon a bill filed by the lessor against the lessees, tbe Court restrained the parties from continuing tc rectify high- wines, or carry on any other business that would interfere in any way with the insurance. Arnold v. White , 5 Grant, 371. 31 — Mill site, riparian proprietor. Tbe owner of a mill dammed back the water of a river, so as to overflow land of the person owning the lot next above him, who filed EQUITY DIGEST. 277 a bill for an injunotioa to restrain such overflowing, on the ground amongst others that it prevented him building a mill on his land ; it being doubtful on the ev;dence whether or not the party complaining had a miU-sito upon his property, an inquiry was directed on that point. Burr v, Graham, 5 Grant, 491. Z2—Sale of steam boat. The owner of shares in a steam boat, on which a portion of tho price was secured by the bond of the holder sold the same subject to this bond, and the shares were afterwards transferred in trust, for the benefit of the original owner of the vessel, who still held the bond for securing the payment of the stock, notwithstanding which, proceedings were taken by him to enforce payment of th« bond. Upon a bill filed for that purpose, the Court restrained further pro- ceeding' thereon, and ordered the bond to be delivered up to be can- celled, with costs. Thompson r. IVtlkes, 5 Grant, 594. Z3~Trade marks. A party professed to sell the secret of a preparation called " Jonea' Patent Flour," and became bound not to disclose the secret to any other person in Canada, nor make use of it himself, except at the instance, and for the benefit of bis vendees, notwithstanding, he after- wards commenced selling a similar article done up in bags, bearing a general resemblance to those of his vendees, although different in some minute particulars, and led parties purchasing it to believe that it was the same article. Tho Court granted an injunction to restrain him from selling the same preparation or any other preparation done up in such a manner aH to lead the public to suppose that it was the ua Tie article, and from representing it to be such, although it was sworn by the vendor that tho preparations were not the same. Whit- ney v. Hickling, 5 Grant, 605. 24i— Nuisance — Offensive trade — Acquiescence in. A party having carried on the business of a soap and candle man- ufacturer for several years, without any steps being taken to restrain bim, after which a bill was filed for that purpose on the ground of nuisance and inconvenience to the party complaining, the Court under the circumstances, refused a motion for an interlocutory injunction, but reserved the question of costs to the hearing. Radenhurtt v. Coate, 6 Grant, 139. 35 — Saw logs — Stoppage in transitu. The purchaser of saw logs to be delivered at certain speeified times assigned the contract to a third party, to whom the vendor delivered 278 EQUITY DIGEST. •;'itv ;■■ V '. I 006 year's supply of logs. Afterwards the original purchaser beoom. iDg insolvent absconded, and the vendor refused to complete the con- tract, asserting a right to stop the goods in transitu, or to retain them before the transitus commenced, in consequence of the insolvency of the purchaser. The assignee thereupon commenced an action at law in the name of the purchaser against the vendor, in which he re- covered judgment, and the vendor filed a bill to restrain proceedings at law. The Court refused him any relief, and dismissed the bill with costs. Wait v. Scott, 6 Grant, 154. 36 — Railway— Private nuisance. A railway company being about to construct their line of road along a public street, a bill was filed by the ownor of property in front of which the railroad would pass to restrain the construction of the road in the manner contemplated, on the ground, as alleged, that his property would thereby bo greatly depreciated in value from divers causes, some of which were that the property would be rendered greatly less eligible from the inconvenience and danger occasioned by the rail cars running immediately in front thereof, and that the present traffic was likely, through the same cause, to be diverted from that part of the road. Hild, that the injury, as alleged, did not amount to a private nuisance, and that, therefore, the party complain- ing was not entitled to an injunction ; and held also that as the in- jury complained of was not irrep.arablc, the Court would not, if other- wise in favor of the plaintiflf, have granted the application. McGee V. The London and Fort Stanley Railway Company, 6 Grant, 170. 37 — Diversioth of highway. Where the evidence, as to the injury done to a highway in the manner a railway was constructed, was conflicting, the Court refused to interfere by injunction, leaving the parties to their legal remedy. The Municipality of Frederickshurgh v. The Grand Trunk Railway Company, 6 Grant, 555. 38 — Affidavits. In moving for an injunction ex parte, the affidavits on which the application is founded must set forth all the facts and circumstances material for the Court to know, or the injunction will be dissolved, even although the party moving did not consider the circumstances to be material. McMaster v. Calhmay, 6 Grant, 577. 39 — Steamboats. On the agreement for sale of a steamboat the vendor delivered possession ^o the vendee and executed a covenant binding himself to traoBfti ohaser aba by oflrtainl portion tl to resume I The Courl moving th j chose monj 40— C'os^l Where not to givd tiff must p| the hearing 7 Grant, 5 A defen strain proo had been ] law. The miaied the i,\—Plea A motio the bill hai than those davits in s granting tl 42— ilfoi'i Althoug cutting til mises, he ^ does not c moval of I the mortg 43— 06f( In apr an injunci 44—^0 'i Dama Proceec tion brou EQUITY DIGEST. 279 to traosfar the vessel with her machinery and furniture to the pur- chaser absolutely, upon payment of the balance of the purchase money by certain instalments, and if default were made in payment of any portion thereof, it was provided that the vendor should be at liberty to resume possession of the vessel with her machinery and furniture. The Court granted an injunction restraining the purchaser from re- moving the machinery from the vessel so long as any part of the pur- chase money remained unpaid. LauglUon v. Thompson, 7 Grant, SO. ^0— Costs. Where a motion for an injunction is refused, the proper course is not to give the costs of the application, as if the suit fails the plain- tiff must pay the costs, and if it succeeds the order pronounced at the hearing provides for the payment of them. Carruthers v. Armour, 7 Grant, 34. A defendant in an action at law filed a bill in this Court to re- strain proceedings, alleging, as grounds for relief, facts, which, if they had been properly pleaded, would have afforded a good defence at law. The Court, without enquiring as to the merits of the case, dis- missed the bill. Morrison v. McLean, 7 Grant, 167. 41 — Pleading. A motion for injunction was refused, the allegations and prayer of the bill having been framed with a view to relief on other grounds than those on whioh the application was founded, although the affi- davits in support of it contained sufficient to warrant the Court in granting the injunction. Ely v. WiJjton, 7 Grant, 103. i2— Mortgagor — Waste. Although a mortgagor in possession will not be restrained from catting timber for fuel, fencing and repairs upon the mortgaged pre- mises, he will be restrained from felling trees for other purposes, if it does not clearly appear that the property, notwithstanding the re- moval of the timber, will remain of sufficient cash value to satisfy the mortgage debt. Russ v. Mills, 7 Grant, 145, 43 — Obtained by defendant. In a proper case, upon petition by defendant, the Court granted an injunction against the plaintiff. Barlels v. Benson, 9 Grant, 486. 44— jTo restrain action at law against an o^cer of Court — Damages — Pract ice. Proceedings under a //a at law having been set aside, and an ac- tion brought against the master, in whose name ik^Jifa had b«on 1 ' ' 1-: , 1 ^^^Hi '■ ■ .'■' PI IMAGE EVALUATION TEST TARGET (MT-3) 1.0 ^^ IS^ ■tt fM 12.2 ^ as, 12.0 \ \.25 1 1.4 1 1.6 ll^^^^BS Inll^^^^^S ^M^H^Bi 6" ■^ Fhobgraphic Sdenoes CorporatiQn ^ ^V d 4^. ■£' V \ \ ^. as WBT MAM STRUT WIMTn,N.Y. 14SM (7U)I71-4S03 4^ ^ JL ;V e^ ^w^w 280 EQUITY DIGEST. L ?JW sued out, an injunotion was issued restraining proceedings. Held, the application for an injunction in the original cause in this Court was regular, and the officer of this Court was the proper person to whom should be referred the question as to the amount of damages sustained by the proceedings wliich had been set aside. Fiaher v. Glass, 9 Grant, 46. 45 — Creditor proving in master^s office — Selling under fi fa. A creditor having proved his claim in the master's office, after- wards proceeded to sell under afifa. Upon the application of a co- defendant, the sale was restrained with costs. Cahuac v. Durie, 9 Grant, 485. 1«6 — Fraud/ulent preference. A debtor, while indebted to one creditor and alleged to be insol- vent, assigned a note to another creditor for a honafide debt. Sub- sequently both creditors brought actions to recover their respective demands, but. in order to enable one of them to obtain a first judgment no defence was entered to his action, while the other action was defended, the Court (following the decision of Younge v. Christie, reported ante volume vii., p. 312) refused an injunction to restrain the first judgment creditor from enforcing the execution .sued out on his judgment. McKenna v. S7nilh, 10 Grant, 40. 47 — Overflowing water by mill dam — When damage ap- preciable in equity. The owner of land through which a stream flowed into land owned by another, on which a former proprietor had erected a mill dam, by which the waters of the stream were forced back and overflowed about two acres of the adjoining land damaging it to the extent of about £2 per annum, in an action of trespass brought against the fbrmer owner of the mill premises for the value of the land so damag- ed, in which he established his legal right, and now applied for a per- petual injunotion. Held, per curiam, (Estcn, V. C, dissenting) that the small amount of damage occasioned to the owner was not a suffi- cient reason for withholding the aid of this Court, and that the plaintiff, having establbhed a clear right both at law and in thia Court, was entitled to a perpetual injunotion to stay further trespasi. Wright V. Turner, 10 Grant, 67. 48 — Building society — Ladies. Although plaintiffs have boon guilty of great delay in applying to thif Court for an iojanotion to restrain the sale of lands andw an i;quity digest. 281 execution, yet a sufficient case hn.ving been made out for an enquiry, the Court granted the writ on an interlocutory motion, the plaintiffs undertaking to proceed to an examination of the witnesses within one month after answer filed and hearing the cause forthwith, there- after, paying the costs at law incurred by reason of postponing the sale, and paying interest from the time the sale was to have taken place until the time of making the decree in the cause, in the event of the sale failing to realize enough to pay the full amount of the cltum under the execution. The Canada Permanent Building Society v. The Bank of Upper Canada, 10 Grant, 203. ^—Riparian proprietor. The fact that a riparian proprietor has recovered nominal damages at law, establishing his legal right, does not necessarily entitle him to an injunction to restrain the injury complained of. The exercise of this jurisdiction is discretionary, depending very much on the reality and irreparable nature of the injury complained of, and when no mala fides exists, on the balance of inconvenience. Where, therefore, a railway company had constructed tanks, which were filled from a stream running through the plaintiff 's land, for the use of their loco- motives, in doing which they did not abstract more than one eightieth or one hundreth part of the water in the stream ; the Court refus- ed to restrain the Company from using the water of the stream, and dismissed a bill filed for that purpose with costs, notwithstanding a verdict at law with one shilling damages. Graham v. The Northern Railway Company, 10 Grant, 259. iO—Misapplication of rates. By an act of the Provincial L^islature the town of St. Catharines was authorised to issue debentures to the amount of £45,248, for the liquidation of which a special rate was directed to be levied, the proceeds of which were directed to be invested and form a sinking Amd for this purpose. By the same act the town was prohibited from passing any by-law to create any new debt extending beyond the year in which such by-law was passed, except for the construction of water works, until the debt should be reduced to £25,000. The special rate authorised to be imposed had been duly levied and collect- ed, bat instead of investing tho same to form a sinking fund for the payment off of the debentures, it was alleged it had been applied to the general purposeu of the town, and the debt had not been reduced. The defendants denied the misapplication of the fund, but did not ihew how it had been applied ; and with a view of inducing the County Oouusil to renaoTe the ooanty town of Linooln from Nid|B[arti to St. 2x •vr^*. !■ ;'•'• 2^2 EQUITY DIGEST. Catharines, the Town Connoil of St. Catharines, without any by-law authorising the same, contracted with certain builders to erect a jail and court house for the use of the county, at an outlay of £3,000, to 1)6 completed in two years. Upon an applioa Ic . made at the in- stance of certain of the holders of the debentures issued under the before mentioned act, the Court restrained the town of St. CatharineB firom suffering or permitting the buildings to be proceeded with. On an appeal to the full Court, the injunction was dissolved, it appearing that the contract which had been entered into between the corpora- tion and the contractor had been cancelled, and that no liability had been incurred by the Corporation extending beyond the year ; but if it had been shewn that any act of the Corporation would have had the effect of incurring a liability payable in a future year, the injunc- tion would have been retained to the hearing. On production of the contract in Court it appeared that the rescision referred to had been effected by cancelling the signatures to the document, which being objected to as not legally discharging the corporation from liability, the Court, as a condition of dissolving the injunction, required a formal cancellation of the contract to be made (Vankoughnct, C, dubitante as to any necessity therefor). The Edinburgh Life Asm. ance Company v» The Municipality of the Town of St. Catharines, 10 Grant, 379. 61 — Action at law. A party to an action at law in coming into equity to obtain relief against a judgment therein, and a stay of the execution issued against him on such'judgment, upon a statement of facts which, had they been proved, would have constituted a good defence to the action, is bound to establish that there are facts which, had they been proved in the action, would have formed a good defence ; but at the time of such trial, and at the time he could, upon this disclosure, have obtain- tained a new trial, he was ignorant of them, and could not with rea- sonable diligence have ascertained them. When a long time has elapsed since the party so applying did ascertain such facts he is bound to make out as clear a case for an injunction as ho would to obtain a decree to unravel the transactions which a court of compe- tent jurisdiction has, by its judgment, closed. Cunningham v. Bu- channan, 10 Grant, 523. 52 — Trade fiocturea. The purchaser of the equity f^ redemption in certain mortgaged premises erected thereon a machine shop, wherein he pUoed a boiler ■^^^IJ" EQUITY DIGEST. 238 and engine, and introduced into the building three lathes, a wood cutter and a planing machine, all of which were worked and driven by such en^ne, but were in no way attached to the machine shop, ex- cept by belting or similar means when in motion, being in every other way unconnected with it or any of the fixed machinery, and capable of being removed without disturbing the machinery or doing any damage to the realty in any way. Held, on a motion to dissolve an injunction which had been obtained en parte, that these articles were removable as trade fixtures. Patterson v. J»knson, 10 Grant, 583. The distinction between chattels affixed with nails or other fasten- ings and those resting by their own weight, remaining chattels or be- coming part of the reality considered and doubted. Ih. McDonald v. Weeks, (ante volume viii., p. 297,) considered and approved of. Ih. 53 — Insolvent act of 1864 — The assignee entitled to the aid of this Court against persons improperly interfering with the execution of his duties. y and D, traders, made an assignment to the plaintiffs on the 9th of January, 1865, as insolvents, and in pursuance of the provisions of the Act of 1864. a judgment at law having been obtained against y, bis interest in the partnership assets was sold for a nominal con- sideration to C, who had notice of the insolvency proceedings. then entered into possession of and otherwise interfered with the partnership goods, so as to hinder the plaintiffs from executing the duties of their office, an injunction was thereupon granted on appli- cation of the assignees to restrain the defendant from further inter- ference. Wilson V. Corhy, 11 Grant, 92. 64 — University, removal of professor. An injunction granted to restrain trustees of a university founded by Royal Charter removing a professor thereof. Wier v. Mathieson 11 Orant, 383. S» University. 55 — Servant — Waste — Little value. A servant after leaving his master's service continues bound by an injunction issued while he was a servant against the master and his wrrants to restrain waste. Where an injunction forbids the cutting down of trees, it is no an- swer to a motion to commit for breach of the injunction that the, trees oat down in contravention of the writ were of Uttle value, .''1 ■* ■•.Ja#«"': ■»' 284 EQUITY DIGEST. A servant who has notice of an injunction may be committed for breach of it, though he has not been serred with the writ Proton V. Sage, llj Grant, 25. 56 — Pleading. A bill was filed by a rate-payer seeking to restrain the trustees of a school from allowing the schoolhouse to be used for religious servi. ees, but the bill did not allege that it wns filed on behalf of the plain, tiff and all other rate-payers ; two of the three school trustees con- sented to the injunction being granted as asked. The Court refused the application on the ground, first, that the suit was improperly con- stituted, and if it had not been , it appearing that a majority of the trui- tees were in favor of the views of the plaintiff, they had the power to do that which they consented to the Court doing ; and if the bill had been by the plaintiff on behalf of himself and all other rate-payeri, whether then the suit would have been properly constituted. Quasre. Rabian v. The School Trustees of the Township of Thurlow, 12 Grant, 115. 57 — Equitable set off. This Court has no jurisdiction to restrain execution or other pro- ceedings at law, on a legal deman^^ upon a written instrument, on the ground that the defendant ^ law has a counter claim for un- liquidated damages for the violation by the plaintiff at law of cove- nants, contained in the same instrument. Smith v.Wootten, 12 Grant, 200. 58 — Obstruction of view. The owner of two adjoining shops, leased one to the plaintiff, and the other to the defendant. The plaintiff's shop window had been so constructed as to present a side view to persons coming down the the street; the object being to attract their attention, and obtain their custom for the wares displayed in the shop ; and the privily was shewn to be a very important one. The tenant of the adjoining shop having placed a show case in an open space or doorway of his shop, so as to intercept the view of the plaintiff's window, was re- strained by injunction from continuing the obstruction. Brnmmell V. Wharin, 12 Grant, 283. 59 — Practice — By-law of Township Council — Assessment acts. Where a bill was filed to restrain proceedings by a township coun- cil on c. resolution which named, it was alleged, a higher rate than was neoessary to raise the sum required for county purposes, and (he EQUITY DIGEST. 285 pkintiff allowed a term of the Common Law Courts to pass before mov* iogfor an injunction, it was held— following the d ^ision in Carol v. Ferth, 10 Grant, 64 — that he came too late, the proper course in such 8 case being to move at law to quash the resolution or by-law. The Consolidated Assessment Act of Upper Canada as a£feoting the case considered. Grier v. St. Vmcent, 12 Grant, 330. QO—Co'tenancy. Although the general rule is that the mere fact of one tenant in common holding possession of the entire estate will not render him liable to a co-tenant who might himself enter and enjoy the possession with the other, and the Court will not in such a case interfere with the dealing of such co-tenant in regard to the property ; still where the co-tenant in possession was the mother of the other co-tenants, all of whom were infants at the time of her second marriage, the Court at the instance of one of the children who had attained majority, res- trained the husband and wife from selling or disposing of the crops of the current year or the proceeds thereof, unless they undertook to bring into Court one third of such proceeds ; but refused to interfere with the possession of the mother and her husband in respect of pre- vious years, although as to such previous years thn mother might have been accountable to her infant children as urustee for them. Bates V. Martin, 12 Grant, 490. Ql— Costs. A party abating in opposition to the terms of an injunction was refused his costs of resisting a motion to commit for contempt ; al- though at the same time the injunction was dissolved upon the appli- cation of the defendant as having been improperly granted. The duty of a defendant served with a writ, being to act in accordance with it as long as it exists. Notler v. Smith, 1 Cham. Rep., 21. 62 — Partners applying funds to other contracts. Where a partner in a special contract applies the funds derived from such contract to other contracts, not belonging to such spe- oial contract, an injunction will be granted against him until the partnership be wound ur ; although such injunction may not have been prayed for in the original bill. Thibodo v. Sccobell, 5 U. C. L.J., 117. 63 — Injunction against mortgagor after decree of foreclos- ure — Waste. After a decree of forcolosuro, if the mortgagor oommiU waste, the f ,S'i rv 286 EQUITY DIGEST. Ooort will eojoia him, though an injunction may not have heen pray- ed for in the hill. Cawihra v. McGuire, 5 U. 0. L. J., 142. 64 — Practice — Defendant showing cause after order 'pro confesso. / An injunction had been obtained against a defendant, and after f the limited time for putting in an answer had expired, an order pro I confesso was taken out against him, he then gave notice of motion to dissolve the injunction. Held, that the statements of the bill having been confessed by his allowing the order pro confesso to stand, pre- cluded him from moving. Manley v. WtlUams, 5 U: C. L. J., 163. 65 — Swpression of material jads. An (X parte injunction will be dissolved, if material facts be sup- pressed, or misrepresented to the Oourt, on moving for it. Fiaken v Rutherford, 7 U. C. L. J., 134. 66 — Principal and surety — Discharge. Where a creditor gives time to the principal debtor, by taking a mortgage from him and agreeing to postpone a registered judgment, without notice to the sureties, the sureties will be held co be dis- charged. Todd V. City Bank, 7 U. C. L. J., 123. 67 — Redemption — Agreement not itnder seal. When an agreement not under seal was entered into by a mort- gagee, who obtained from mortgagor a deed of certain property, whereby the mortgagor was allowed to retain possession of a portion of the property, and the mortgagee the other portion until he was paid, and such agreement having been destroyed by the mortgagee, and an action of ejectment brought on the deed. The Court restrain- ed the mortgagee from enforcing his legal right. Harris v. Meyers, 7 U. C. L. J., 243. 6S— Practice — Breach of injunction — Order to commit. Where a party commits a breach of an injunction after service of the order upon his solicitor, but before personal service of the injunc- tion upon the party enjoined, the Court will commit him for con- tempt. Andrews v. Maulson, 8 U. C. L. J., 74. 6S—8tat 20 Vic., c. 51), s. 4. The Court may grant an injunction to stay waste in a proper case, notwithstanding that the party in possession claims by an adverse legal title, 20 Vic. c. 56, s. 4. !^^^ mmm EQUITY DIGEST. 287 fO— Breach of injwnction — Coats of contempt — Attachment An attachment to commit a party for contempt will not be grant- ed merely for non*payment of the costs of the contempt. Dickson v Cooke, 1 Cham. Bep., 210. 71 — Use of trade Tnark. The plaintiff had duly registered under the statute as his trade mark in the manufacture of soap, the word " imperial " with a star following it, the defendant in his manufacture of soap put on his boxes the words '' Imperial Bibasio Soap" an injunction was granted restraining him from using the word " Imperial" as being a portion of the trade mark of the plaintiff. Crawford v. Shuitoek, 13 Grant, 149. 72 — To restrain cutting timber. Where a mortgagor in possession was felling timber on the mort- gage premises, the Court at the instance of a judgment creditor of the mortgagor with an execution against lands in the hands of the sheriff, granted an injunction to restrain future cutting by the mort. gi^r, his servants, agents, and workmen, it being shewn that the property was a scanty security for the claims of the mortgagees, and the amount due to the execution creditor, Wason v. Carpenter, 13 Qrant, 329. 73 — At instance of defendant An injunction may be granted against a plaintiff at the instanoe of the defendant before decree. Stewart v. Kingsmill, 13 Qrant, 347. 74 — Restraining using sign. The plaintiff carried on business in the city of L, having for his sign a figure of a gilt lion, and designating his placeof business "The Oolden Lion," the defendant for some years had had the conduct of this business, and having determined on commencing on his own aooonnt the same line of business, opened a shop in front of which he placed a figure somewhat similar to that used by the plaintiff. The Court on the application of the plaintiff restrained the defendant from using as a sign, this or any similar figure. Walker v. Alley, 13 Grant, 366. 75 — Service of bill — Costs. An injunction while it stands should be obeyed, and where after twelve weeks had elapsed from the service of the injunction without the bill being served, the defendant treated the injunction as gone, ^I'u! , m f 288 EQUITY DIGEST. the Ooort while refusing a motion to commit for breach of tb« io. jnnotion, refused the defendant his costs of resisting the application. Heron v, Swisher, 13 Grant, 438. Service. Where an ex parte injunction 's granted before the bill is served an office copy of the bill should be served with the injunction, or as soon as possible afterwards. Heron v, Swisher, 13 Grant, 438, Where an ex parte injunction was served 24th Dec, and the bill was not served up to the I3th May following, the injunction wu dissolved for the neglect to serve, lb. 76 — Restraining use of trade label. Plaintiffs sold liquid medicine put up in bottles, labelled *' Perry Davis's y^table Pain Killer," defendant subsequently sold a sim- ilar kind of medicine, put up in bottles labelled " The great Home Remedy Kennedy's Pain Killer," plaintiffs claimed the word " Pain Killer" alone as their trade mark. It was proved that the medicine of plaintiffs was known and sold in the market by the name of " Pajn>killer" before the defendant's was introduced, and that the trade would not be deceived by the defendant's labels, although the general public might be deceived. An injunction was granted, rei* training the use by the defendant of the word " Pain-killer" as a trade mark with account of profits and costs. Davis v. Kennedy, 13 Grant* 623; Which injunction was afterwards at the hearing made perpetual 77 — To enforce the diverting of a drain. The defendant had built a drain from his premises to a lot of which the pluntiff became lessee, being desirous of building on this lot, ho requested the defendant to stop up or remove the drain, which the defendant at first refused, and afterwards neglected to do. It was all^d by the defendant that the costs of diverting the drain, would have been $14 only. Htld, that the plaintiff was not obliged to take the law into his own hands, and divert the drain and sue the defendant for the ex- pense^ and it appearing that the plaintiff's building could not safely be proceeded with until the drain was stopped up, or diverted, an in* iunction was granted requiring the same to jbe done. Macaulay v. Roberts, 13 Grant, 565. Ske Admijustbator — Affidavit, 4--AssiaNMENT — Corpo- ftATioN— County Court — Dedication—Esplanade Acts— In- BU]UII0I~--JUDOMENT CbBDITOR LESSOR AND LsSSIl--* m^ EQUITY DIGEST. 289 MoETOAOB— Municipality— Nuisance— PABTNEMHip—Paio- noi rxdkmftion- ^pkcifio plbfobmancv txnant in Common— Vendor and Purchaser— Vbndoe's Likn — ^Will. INSANITV. Sbb Deed— Setting Aside. INSOLVKNCY. Fnud in contractint; dchtR, 1. Act 01, S. Jurisdiction of county Judgfo, 4, 6. Continuing: businem notneceimrily fraud, e. Appellant must apply promptly, 7. 1 Fraud in contracting debt. Fraud in contracting debts before !:he passing of the insolvency act (1864) is not to be excluded from consideration on an application for the confirmation of the insolvent's dischai^c. Where a trader, all whose property wa» heavily mortgaged and who had large overdue debts which he could not pay, obtained credit firom Montreal merchants, concealing his true position, falsely ally- ing that he was worth $4,000 more than he owed, and that he had DO engagements he could not meet, he was held to be guilty of such fraud as disentitled him to his discharge under the act. Re Owens, 12 Grant, 560. 2— Appeal. Objections to the security on an appeal from the County Court judge, under the insolvency act (1864) are to be made to such judge. lb. ^—Insolvency, act of. Where, previous to an act of insolvency, certain lands in which the insolvent, a defendant in a suit in Chancery, had an equitable inter- est, had been ordered to be sold, and were afterwards sold, and the purchase money paid to the plaintiff in equity ; the assignee in insol- vency moved that such money be paid into Court, for the benefit of the general creditors. It was held that such lands were subject to tiie order for sale, and the motion refused with costs, but the assignee was considered entitled to his costs out of the estate, as the question was a new one, and a proper one for him to raise in the in- terest of the general creditors. Yale v. Tollerlon, 2 Cham. Bep,, 49. 4t— Jurisdiction of county judge. The county judge has a general jurisdiction in matters of inaol- vency and may sanction a suit in the name of the assignee for the 2n •W" 290 EQUITY DIGEST. benefit of the estate, nothwithstanding a majority, both in number and value, of the creditors pass a resolution forbidding further pro- ceedings. In re Lamb, 13 Grant, 891. 5 An order to that effect having been made by the judge, the assignee appealed therefrom in the interest of the creditors, whoso transactions the suit impeached for fraud, and the appeal was dismiss- ed with costs, the Court observing t!:)at it was not the duty of the assignee to appeal from such an order at the expense of the estate. lb. 6 — Continuing bumness not necessarily fraud. Where a person in business finds himself unable to pay twenty shillings in the pound it may or may not be his duty to discontinue his trade, according to circumstances ; continuing his business may be a fraud, bat is not necessarily so. In re Hoh 4« Gray, 13 Grant, 668. 7 An appellant in insolvency must apply promptly. Re Sharps 2 Cham. Rep., G7. INSOLVENT. 1 — DiscJiarge of. A trader after discovering that his affairs were not in a position to pay twenty shillings in the pound, continued his business, in the hope, which was not shewn to have been absurd or unreasonable, that he would thereby be able to pay all his debts in full and meet all hu engagements, and in the course of the business so continued contract- ed some new debts, bu^ was unsuccessful ; and after a time found it necessary to make an assignment under the insolvent act. Held, that he was not thereby disentitled to his discharge. In re Holt ^ Gray, 13 Grant, 568. 2— On an application for an order of discharge, the insolvent is entitled to read his own examination, though taken at the instance of a friendly creditor, and the only question is as to the weight to be attached to it. lb. 3 — Amending — Conveyance by an insolvent Leav^D Kend was refused when the proposed amendment was an all^ation that a mortgage was made whilst the mortgagor was io a state of insolvency. It is competent to a debtor, insolvent or on the eve of insolvency, to prefer one creditor to another by the conveyance or mortgage of EQUITY DIGEST. 291 real estate. The same rule applies to a sarety. Curtis v. Dale, 2 Gbam. Bep., 184. INSOLVENT ACT OP 1864. Entitling papcn, 0. Official assignees, 13. Parties, 4. Partners, 3, 5. Pleadini^, 4, 6. Preference, 7. Administration, 6. AppcAl, 8, 9. Anignce, 1. AMignmcnt, 3, 10. Creator dealing with insolvent may rebut prcRumptlon, Ac, 12. Debtor conveying land, 11. \— Assignee entitled to the aid of this Con ri. against persons in>pror)erly interfering ivith tJte execution of lis duties. V and D, tradcrpi, made an assignment to the plaintiffs, on tho ninth of January 1865, as insolvents, and in pursuance of the pro- yisions of the act of 1864. A judgment at law having been obtained against V, his interest in the partnership assets was bOid for a nom- inal consideration to C, who had notice of the insolvency proceedings. G then entered into possession of, and otherwise interfered with the partnership goods, so as to hinder the plaintiffs from exercising the duties of their office, an injunction was therefore granted on applica- tion of tho assignee to restrain the defendant from further inter- feronce. Wilson v. Corby, 11 Grant, 92. 2— Voluntary asdgnnient. A voluntary assignment for the benefit of creditors not executed in pursuance of the provisions of the insolvency act is void as against assignees appointed under the act, where such assignment was the act of insolvency on which the attachment was issued. WtUon v. Cramp, 11 Grant, 444. ^~^Bf.irt)urs assignment Two partners before tho passing of the insolvency act, assigned their joint estate, and separate estates, together for the benefit of their joint and separate creditors j^an passu. An assignee under the act, having been afterwards appointed, he filed a bill to set aside the previous assignments, on the ground that to put the separate creditors of each on an equality with the joint creditors, in respect of the joint property, and of the separate properly of the other partner, was a fraud on the joint creditors. But it appearing by evidence that the separate estates of both partners were solvent, and that the equality oomplained of was an advantage to the joint creditors, the bill was dismissed with costs. McDonald v. McCallum, 11 Grant, 469. ',11 i.ti, !J" 292 EQUITY DIGEST. VM iT.t ' ^i 'C^B m 4 — Pleading — Parties. A bill was filed by assignees under the insolvency act, to set aside a settlement executed by the insolvent on the marriage of his d&ughter with a secret trust in his own favour. The bill charged that the in- solvent defendant was in the enjoyment of the property, and prayed costs against all the defendants. A demurrer by the insolvent^ on the ground that he was not a proper party to such a bill, was allov- ed. Wilson v. Chisholm, 11 Grant, 471. 5 — Partners. One of two partners a few days before a writ of attachment against both, under the insolvent act of 1861, had issued, assigned his estate for the benefit of his creditors. Held, void as against the off fir' assignee. Wilson v. Stevenson, 12 Grant, 239. 6 — Pleading — A dministrat km. A voluntary assignment to an official assignee under the insolvent act of 1864, (Sec. 2,) is not valid unless accepted by the assignee. Every material allegation in a bill should be positive, and an ailegtu tion that so far as the plaintiffs know, an assignee had not accepted the assignment ezecut' 1 by an insolvent, was held insufficient. An assignment by an administratrix of a mortgage, port of the assets of the intestate was held valid^ though not therein stated to be executed as admiaist~atrix. Yarriuglon v. Lyon, 12 Grant, 308. 7 — Preference. The insolvent act of 1864, does not invalidate conveyances pre- viously executed, and which were valid at the time of their execution. A mortgage of chattels to a creditor, by a person in insolvent circum- stances, not made with the intent of giving such creditor a preference but under pressure, and to obtain an extension of time under the ex- peotatiou of being thereby enabled to pay all his creditors in full, is not void under the enactments against preference, (22 Vic, ch. 26, s. 18.) Gordon v. Young, 12 Grant,*_318. 8 — Appeal. Notice of the application for allowance of an appeal must be ser- ved within eight days from the day on which the judgment appealed from is pronounced, but the application itself may be after the eight days. Where the notice was served in time, but named a day for the ap- plication, which did not give the time the insolvent was entitled to, and was irregular in some other respects, the notice was held amend- able in the discretion of the judge. Re Owens, 12 Grant, 446. EQUITY DIGEST. 293 g— Appealing— Entitling papers. Where (he affidavits on rhich an allowance of an appeal from a County Court Judge wa3 sought were not entitled in any Court, they were not allowed to bo read. An objection that no written order of discharge (against which it was sought to appeal) wasproduccd, was considered fatp\ Where the appellant was described as Wm; Darling, and the op posing creditors appeared to be Wm. Darling & Co., it was consider' ed grounds for refusing to entertain the appeal. An appellant in insolvency must apply promptly. In Re Sharpe, 1 Cooper's C. & P. E.,75; 2 Cham. Rep., 67. 10 — Assignmmt. An assignment for the benefit of creditors on which, as an act of insolvency, proceedings arc taken in insolvency, is void as against the assignees appointed under the act* Wilson v. Cramp, 1 Cooper's C. & P. R. 94 ; 1 U. C. L. J. N. S., 217. 11 — Debtors conveying lands. Subsections 1, 2, 3, and 4, of section 8 of the iusolvenoy act of 1864, do not prevent a debtor conveying lands to a creditor, either in payment of or as security for his claim. Newton v, The Ontario Bank, 13 Grant, 652. 12 — A creditor, whose dealing is impeached, may rebut prr sumption of contemplated insolvency. A bavins: manufactured a quantity of goods (a number oil barrels) for a customer, drew upon him for the price and applied to a banker to cash the bill, which the banker agreed to do upon receiving a lien on the goods, which was given and the bill cashed accordingly. On the day lollowing the debtor made an assignment to an official assignee. Held, first, that the transaction was not within either the terms or the spirit of the insolvent act. Second, that if it were within the terms of the act, the creditor was at liberty to rebut the presumption that the transaction was carried out in contemplation of insolvent cy. Newton v. The Ont io Bank, 13 Grant, 652 13 — Offijcial assignee. The provision in the insolvency act which authorises Boards of Trade to appoint official assignees, applies as well to unincorporated n to incorporated Boards of Trade, and that whether such Boa^dn ! '^'I"'*-^ 294 EQUITY DIGEST. f ^i- til T/ji:f)l of Trade were in existence at the time of the passing of the act, or were subsequently created, lb. (Since appealed and stands for judgment.) SSE ASSIONMENT — INJUNCTION — INSOLVENT DSBTOR, INSOLVENT ADMINISTRATOR. Costs. Where an administrator brought an unfounded action against the testator's widow which she was put to costs in defending. Held, that she could not claim these costs against the estate, and that her only remedy was against the admistrator personally. Roi. gers V. Rodgers, 13 Grant, 457. INSOLVENT DEBTOR. Assi^mcnt for bcneflt of creditors, 1. Privileged creditor, 1. Preferring a creditor, 2. Sale by, 2. 1 — Assignment for benefit of creditors — Privileged creditor. An assignment was made to trustees for the benefit of orediton, to which was appended a list of names of those who were to rank as privileged creditors, one of thc^e parties subsequently applied to the trustees, who in concert with the debtor handed to him several notes and bills, more than sufficient to cover the claim of his firm, which he took with him for the purpose of negotiating them, his desire being as he stated, to realise funds at once. Certain of the makers and acceptors of these notes and bills having become insolvent, a bill was filed by the firm against the assignor and his trustees, for an n^ ooun^ of the trust estate, and payment of the claim ; in answer to this bill, the defendants alleged that the bill and notes had been taken in payment of their demand, not as collateral security only. The evidence on this point was contradictory. The Court under the cir- cumstances, referred it'to the master to take an account of the claim of the plaintiffs against the estate, and to enquire as to the dealings of the trustees under the assignment. Wood v. Brett, 9 Grant, 78. 2 — Sale by — Preferring a creditor. A person in insolvent circumstances made a bill of sale of his prop erty to one of his creditors, the consideration thereof being a pre- existing debt, and a sum of money in addition sufficient to make ap the price agreed upon, as the value of the property sold ; the amount of money so received by the debtor being by him paid over, with the knowledge of the purchase to another creditor, and three months EQtltir DIGEST. 295 fUet this sale was completed, the debtor made an assigDment or his iggets under the Insolvent Debtor's Act. On a bill filed by a creditor for that purpose, the sale was set aside, and a resale of the property ordered, the proceeds to be applied in payment of the plaintiffs claim, and the residue, if any, to be paid over to the assignee in insolvency. Coates V. Joslin, 12 Grant, 524. A widow to whom dower had been assigned, agreed with the per- son by whom she was employed as housekeeper to convey the same to him in trust, for the benefit .of his infant son eight or nine years old, and to whom it appeared she was much attached, in considera- tion of a certain sum uf money for the payment of which the widow's lands were answerable, and were liable to be sold, and also an annuity gecored to her ; the consideration however not being at all equal to the value of the property. The Court in the absence of proof of any ondue influence, oppression, persuasion, or fraud, refused to set aside the agreement as against the infant. Gourlay v, Riddell, 12 Qrant] 518. Sis Insolvency. INSTALMENT. SiB Practice. INSTANTANEOUS SEISIN. See Mortqage. INSURANCE. Agtntiniuring In hi» owni name, 1. Contntct of, 6, 9. Injunction, 10. Interim, i. Jurisdiction, 9. Termination of t,hne for bringing action, 4 Principal and agent, 6, 9. Re-buil(ling, 10. Statements of parties affecting, 11. 1—I7i8arance by agent of company in his own name,fov a mm exceediny limit The agent of an insurance company effected an insurance upon wheat in the name of himself and partner, for the sum of £3000, there being at the same time an insurance on the mill in which the wheat was stored of £750 ; the rule of the company being that not more than £3,000 should be taken on any one building and its con' tents. The usual proposal was transmitted by the agent to the head office on the 23rd, and on the 27th of the same month the premises and wheat were destroyed by fire ; no action in the mean time having u i» --•' :t-<^ ^'iff'^^Tr.^^if^'^'' '■ ,-v« 296 EQUITY DIGEST. I < been taken by the company upon the application sent by their agent, who, in making the proposal had refrained from drawing the attention of the company to the fact of the previous insurance on the building, and the then secretary of the company sworo that had he been aware or had his attention been drawn to the fact of such prior risk, the second application would have been immediately rejected. After the loss occurred the company paid the sum of £750 (insured on the building,) and £2,250 (on the wheat,) together making the sum £3,000 allowed by the rules to be on one building and its contents. Under these circumstances a bill filed by the agent and his partner to compel the payment of the additional £750 was dismissed with costs. Tucker v. The Provincial Insurance Com- pany, 7 Grant, 122. 2 — Interim insurance. A person having applied to effect an insurance with the agent of an insurance company, obtained from him the usual interim receipt, after the expiration of the time specified in this receipt but before any policy was completed the property was destroyed by fire, after which the company refused to pay the amount insured or to iasae any policy, asserting that they had not approved of or accepted the risk, the evidence of the agent shewed that the risk had been accept- ed, and that he had stated to the assured that it had been a^ oepted. The Court under the circumstances directed an enquiry as to the amount of loss sustained by the insured and that the company should pay the same. Penley v. The Beacon Assiiranre Company, 7 Grant, 130. 3. — Qucere. Whether the Couit corld under such circumstances compel the company to issue a policy. lb. 4 — LmAtation of time for bringing action. One of the conditions endorsed on the policies issued by an in- surance company stipulated that any proceedings to be taken r;;aiDst them in respect of any loss sustained by the assured should be institut- ed within six months after such loss should happen. Held, that suoh condition did not apply to a case whcra the company refused to com- plete the policy, and a bill was filed to compel them to execute a pol- icy or pay the amount of loss sustained by reason of the destruction by fire of the property insured. Ih. 5 — Principal and agent The owners of a quantity of Wheat on board of a vessel, applied to the agent of an Insurance Company to insure the same who took i3rJ the risk, s the insura minm at ( minm, ore policy was sel and ca snrance wi bill filed U was dismiG pany, 7-6 (Affirm 5—Contr Quare. not lost" a curred and liable for (In appeal Held, af of an agent urns to the the money, sent, was m A party of the prem to take his vrards ; and there vaa n the compan Q—Interi and ag\ The agei tions, on ap premium, g proval by t) case applicj understood for the polic fused to efi note given ( 2( EQUITY DIGEST. 297 the risk, sabjeot to the approval of the head office, who authorised the insurance, and directed the agent to remit the amount of pre- mium at once. The owners of the wheat instead of paying the pre^ minm, credited the amount to the agent in their books, and before any policy was delivered, information was received of the loss of the ves- sel and cargo, which had in fact occurred before the proposal for in- Borance was made, the company then refused to issue a policy, and a bill filed to compel them to do so, or pay the amount of loss sustained was dismissed with costs. Walker v The Provincial Insurance Com' jjony, 7Grant, 137. (Affirmed on appeal, 8 Grant, 217.) ^—Contract for — Principal and agent. Qucere. Whether if in a receipt for premiums the words '* lost or not lost" are not inserted, and before the policy issues a loss has oo- corred and become known to both parties, the insurers would be liable for the the loss. Walker r. Provincial Insurance Company (In appeal), 8 Grant, 217. Held, affirming the decree of the Court below, that the mere fact of an agent of an insurance company sending a receipt for the premi- ams to the place of business of the assured without actually receiving the money, although the receipt was left relying on the money being sent, was not sufficient to complete the contract of insurance lb. A party made a proposal for insurance, but did not pay the amount of the premium, on the ground that the agent of the company agreed to take his note for the amount. The loss occurred a few days after- wards ; and the bill was filed to enforce the contract. Held, that there was no contract, and that the agent was not authorised to bind the company as alleged, lb,, U. C. L. J. ^—Interim receipt by agent — How far binding — Principal and agent. The agent of an insurance company employed to receive applica- tions, on application by the plaintiff and receipt from him of the usual premium, ga^o to the the plaintiff a receipt therefor, " subject to ap* proval by the board of directors, money and note to be returned in case application rejected." It was alleged that this was verbally anderstood between the agent and the assured to be a final agreement for the policy and an acceptance of the risk. The directors having re- fated to effect the proposed insurance and returned the pRmium note given to the agent. Held, not liable to make good a lut^, 2o ¥•' "I Vv 298 EQUITY DIGEST. Held, also, that tho agent's authority did not extend to the mak- ing of final agreements for insurance, or to the insuring temporarily of property other than such classes as are specified in their printed cir- culars, or such as they were accustomed to insure. Henry v. The Agricultural Mutual Assurance Company^ 11 Grant, 125. 7 — New 'policy effected in breach of proviso in first policy. Where a fire policy provided that the same should be void if a new ' policy was effected without the consent of the insurance companj and an assignment was subsequently made of the policy to a mort- gagee of the property, with concurrence of the company, after which the mortgagor effected another insurance without the consent requir- ed by the policy. Held, on the premises bein-* burnt down, that the policy was not void in equity as respected thf nortgagee. (Spragge, V, C, dissenting.) Held, also, that on paying the amount of the debt tho company was entitled to an assignment of the mortgage, Burton v. The Gore District Miitual Fire Insurance Company, 12 Grant, 156. 8 — Authority of agents. In the form of application used by an insurance company and signed by an applicant for insurance, the following notice was print- ed : '' Applications for insurance on manufacturing establishments where steam is used for propelling machinery, must be approved of by the head office at Montreal." Held, that this notice did not refer to a vacant distillery which had not been in operation for some yean, and which, at the time of the application, it was no' '' iiumplated to put in operation. At the foot of a series of qie^t .3 " the form of application the following note was printed: "T:. w — olieant ia re quested to answer the above questions fully, as it 1? ' , icially agreed on the part of the applicant that this survey as well as the diagram of the premises shall form a part and be a condition of this insurance contract." Held, that the request to give full answers could not be construed as a notice that such answers were indispensible to the validity of the contract or to the authority of an agent to bind the company by an intermediate insurance, there being no pretence of the omission to give full answers having been fraudulent ; when such is the intention of the company, distinct notice to that effect should be given. Rotoe v. The London and Lancashire Fire Insurance Company, 12 Grant, 311. EQUITY DIGEST. 299 %-jC6ntract for insurance — Principal and agent — lAmi- tationfor bringing action — Jurisdiction. A party effected an insurance through the agent of the defendants by paying the premium required by the established rated of the com- pany. The agent gave the usual receipt and informed the head office of the insurance and was credited with the amount. A fire occurred shortly afterwards in the insurer's premises, and before the policy was issued. By a condition on the policies of the company it was provided that " no suit or action against the Company should be sus- tainable in any court of law or chancery unless commenced within six months after loss or damage." On a bill filed to recover the amount of the insurance, or to compel the issue of the policy, it was HeUy that Courtg of Equity have jurisdiction in policies of insur sDce. Reldf also, that there was a contract by the defendants to issue a policy to the plaintiff; that the agent was their agent to keep books, and by his entries there did so bind the defendants. Held, further, that the limitation in the policy applied only to eases were the insured is in possession of a policy, and not to cases where the company has only issued a receipt. Penly v. Beacon In- surance Company, 5 U. C. L. J., 213. 10— Injunction — Company electing to rebuild rather than pay insurance. According to one of the conditions of the policy of insurance effect- ed upon a dwelling house, the company, in caae of loss or damage thereto, were to have the option of making good such loss or damage either in money, according to the sun insured, or by rebuilding, or by repairing the same, according to the circumstances. The house having been destroyed by fire, tho company, instead of paying the amount insured, elected to rebuild, which they commenced doing without having obtained any plan of the house destroyed from the insured, and against his express objection to their proceedings. In erecting the new structure they also intentionally departed from what was known to be a feature of the old building, thereupon the insured filed a bill to restrain the company from proceeding to erect the build- ing in the defective manner pointed out, and praying that the company might be decreed specifically to perform the condition, by erecting a house exactly, or at least substantially, corresponding with that de- stroyed. The Vice Chancellor decreed the relief as prayed, from this decree the company appealed, and on argument thereof the Court re- 1 , i 300 EQUITY DIGEST. versed the decree so pronounced and dismissed the bill, under the circumstances without costa. The Home Insurance Company «. Thompson, 1 E. & A., 247. 11— Statements of party affecting insurance. When a party on applying toelFeot an insurance of buildings over, states the value of them, the policy will not thereby be avoided when it appears that such over-value was not made with a fraudulent in- tent. Laidlaw v. The Liverpool and London Insurance Company 13 Grant, 377. Where a party, on applying to effect nn insurance, in answer to one of the interrogatories endorsed on the form of application, stated that he was the owner of the estate, subject to a mortgage in favor of a building society for $1,500, the facts being that he only held a contract of purchase, that a portion of the purchase money remained unpaid, and that a mortgage for the amount mentioned had been agreed for, but not executed, of which facts the company through their agent was aware. Held, that the insurance was not avoided by the inaccuracy of the statement in the application it not being shewn that such misstatement was intentional or material. Jb. A party on applying to insure omitted unintentionally from his description of the property, some particulars which ho was not asked respecting, but which, had the company's agent known, he swore he would not have insured. Held, that there being no fraudulent concealment, the omission to set forth the particulars referred to, did not render the policy void. lb. See Fibe Poliot. • INSURING. Insuring mortgaged premises. A mortgagee insuring the mortgage premises against accident or damage by fire out of his own funds, is entitled to recicve the amount of the policy in the event of loss for his own benefit without giving credit therefor upon the mortgage, Russell r, Robertson, 1 Cham. Rep., 72. Interest. To save interest by an appropriation of the purchase money, the money should be separated from the purchaser's general bank acoouut m EQUITY DIGEST. 801 and notioe must be given to the vendor. Great Western Railway Cmpanji v. Jones, 13 Grant, 355. On moneys improperly retained. Where defendant had retained moneys and did not show that he had deposited them for safe keeping, or kept them in his hands un> employed, he was held to bo properly charged with interest. Beaton V. Boomer, 2 Cham. Rep.. 89. See Administration— -Bankrupt — Executor — Partner- BHiP— Specific Performance. INSTALMENT. See Mortgage, See Alimont. INTERIM ALIMONY. INTERIM INJUNCTION. See Foreclosure — Injunction. INTERLOCUTORY COSTS. Bill of—^Filing Where the register is directed to fix the amount of interlocutory costs, and to aid him in doing so a bill of costs is prepared and taxed, the bill of costs should be filed. Saunders v. Fumivall, 2 Cham. Rep., 55. INTERPLEADER. Attaching order — Equitable assignnunt. One G recovered a verdict against the plaintiff in March, 1863, in the County Court of P, which G assigned during the same month to D and R, of which assignment notice was given to the plaintiff in the November following. In April, the month after the recovery of the verdict, the debt was attached by certain creditors of G, and they as well as D and R pressed the plaintiff for payment, but took no steps as between themselves to test the question as to which had a right to payment ; an execution in the suit having been placed in the hands of the sheriff, the plaintiff paid the amount to the sheriff, which was immediately paid over to D, the attorney in th3 action. In the meantime a writ had been ordered to iss ^e at the suit of the at- m -J :n -TTS S02 EQUITY DIGEST. taohing creditors by tbe Judge of the Oounty Court of N, which action D refused to defend, and judgment was entered by default the same day that the debt and costs had been paid to the sheriff. Held, under the circumstances that the plaintiff was not bound to take up. on himself the responsibility of deciding between the rival claimants, and that he was entitled to file a bill in this Court calling on them to interplead, without paying the money into Court. Davidson v. Douglas, 12 Orant, 181. INVESTIGATION OP TITLE. Skb Specific Performance. INVESTMENT OP MONEY IN COURT. Fmin of security. As a general rule, loans of money in Court cannot be made on prop- erty on which there is any prior charge however small, unless all parties interested consent. Andrews v. Hempstreet, 1 Cham. Rep., 347. 2 — For the benefit of infants. An application to invest the moneys of infants pursuant to an or- der of this Court should be made by the infants, and not by the person wishing to borrow. In Re Hfaly, 1 Cham. Rep., 190. IRREGULARITY. 1 — Waiver. The rule in thb Court is similar to that in the Courts of Common Law : that a party to a cause who takes a fresh step in the cause after notice of an irregular proceeding on the part of his opponent thereby waives the irregularity. Manning v. Berely, 2 U. C. L. J., 332. 2 — Time to move against — Waiver. A party complaining of an irregularity must come promptly and move against it, either within a reasonable term, or the time limited in the order or notice complained of. Thus, where a party was di- rected to pay a certain sum of money within eight days, but did not move against irregularity in the order for several weeks afterwards. Held, that he came too late to complain of an irregularity. Miller p. Miller, 9 U. C. L, J., 132. 3ee A^kndinq— Mobtoaqe. Equity digest. 303 ISSUE. l^At law. When demandable as of right, yih-'n discretionary, BouUon v. RoHfUon, 4 Graot, 109. Sse alio " Principal and Agent," " Setting aside Conveyance." %— Conflicting evidence. Where the evidence as to the fact of marriage was conflicting, the Oonrt offered the plaintiff an opportunity of obtaining better evidence or an issue to try the question, and if refused, directed the bill to ba diimissed. Baker v. Wilson, G Qrant, 603. Act 20 Vict. In any case in which the Court requires an issue to be tried by a jury, it shall not be necessary to commence any feigned action in a Court of law ; but upon an office copy of the decree or order directing the trial of the issue, being entered for trial in the same manner as a nui prius record is entered, the issue shall be tried at the Assizes, or at the sittings of a County Court in Upper Canada, in the same manner as issues are tried in actions brought in the superior Coorts of law, or in the County Courts, and the finding of the jury shall be endorsed upon such office copy, and signed by the presiding judge, and the office copy shall then be transmitted to the Begistrar of the Court of Chancery ; or instead of directing an issue to be tried at law the Court may try the same by a jury without the intervention of a Court of Common Law, and may issue a preceptor order directed to the sheriff of any County the Court sees fit, requiring him to strike and summon a jury for that purpose, and at the trial one judge or more of the Court of Chancery may sit or preside. 20 Vic, ch. 56, s. 13; Con. Stat., U. C, 60. Sbk Prinoipal and Agent. JOINT STOCK COMPANIES. SiK Corporation. JOINT TENANTS. Sll MORTaAQES. JUDGMENTS. 1 — Setti/ng off. T and M having cross judgments at law, applied to that Oowt \» ■f w^?»:-j;,.,. m 1^1^ •/I'i-'^^j^HSH 304 EQUITY DIGEST. m /V>*| Mt the one judgment off against the other, which application was nfag. ed, on the ground that the judgment against T had been assigned to a third penon without notice, but it appearing that M's liability to T arose in oonsequenoe of T being surety for M, this Court granted an injunction against the assignee to prevent his enforcing the judg- ment recovered by M, as a person purchasing a chose in action does 10 subject to all the equities to which it is. liable in the hands of the assignor. Thompson v. Millar, 4 Qrant, 481. Priority — Partnership. Judgments recovered against two out of throe members of a firm for a partnersk'p debt, are available against only what may appear upon winding up the partnership to belong to the two judgment debtors. Stanbury v. Milliken, 8 U. C. L. J., 144. SiK RiaiSTBBKD Judgments— MoRTGAOE. JUDGMilNT CREDITOR. AnifneM, 12. OoiutUnl Ncurlty, 8. Dmtm, fonn of, setting aside deed for fraud at Instance of. Dower t>f wife of grantor, 11. Entitled to remedy against lands forfeited by debtor, 16. Final order after abortive sate, 14. ForecloMire suit, 8, 6, 8. Injunction, 12. Lien, 7, 10. Mense inoumbrancer, 12. 1 — Purchaser, Stat. Eliz., 27. Mortgage, 8. Payment of money into Court, 0. Parties, 8. Purchaser, Stat. Eliz., 27, 1, 4. Itedeeming, 2. Registration, 15. Right to redeem by mense incumbranctr. 12. Service on attorney of, 17. Speclflc performance, 0. Stop order, 13. A judgment creditor is not a purchaser within the meaning of the statute 27 Eliz,, ch. 4. Goodwin v. Wilhams, 5 Grant, 639. 2 — Foreclosure suit, redeeming. In suits of foreclosure where there are several judgment creditors, the decree should give the cr^^ditors successive rights of redemption, although very short periods must be fixed for that purpose. Carrol V. Hopkins, 4 Grant, 431. 3 — Mortgage — Collateral security. A Judgment creditor coming to redeem a mortgage incumbrance, is entitled, upon payment of the amount due to the mortgagee to an assignment, not only of the mortgaged premises, but of all collateral securities, whether the same be subject to the lien of the creditor under the judgment or not, therefore where judgment had been re* covered and duly regi^ijred against a party who had a contingent in* terwt in raal and pei-sonal property, subject to a mortgage eteouted EQUITT DIGEST. 305 bf wij of seoarity for advances, and the debtor haying effected an iaonranoe upon hit life, which he had alao asiigned to the same per- lOD ai an indemnity against loss, tn respect of a bond ezeoated by biiB as surety for the debtor. Held, that the judgment creditors of the mortgagor, upon paying the amount due under the mortgage and indemnifying the mortgagee in respect of his liability as surety, were entitled to a transfer of the policy of insurance, and also of the mort- gage upon the contingent interest, and to ioreclose the mortgagor in d^ault of payment Gilmour v. Cameron] 6 Grant, 290. ^Purchaser — Stat. Eliz. 27. A judgment creditor is not a purchaser for value within the statute 27 Elizabeth, c. 4. Gillespie v. Van Egmondl, G Grant, 533. 5 — Foreclosure. In this country a judgment creditor is entitled at his option to a decree either to sell or foreclose the estate of his debtor. Mr. Master V. Noble, 6 Grant, 581. Q— Payment of mmiey into Court. A confession was given to secure a second set of sureties of a county treasurer, but on an arbitration it was found that defalcations had occurred under a former bond a surety in which was also in the second. The evidence was conflicting as to whether the protection was for one set or for all. On a motion to retain moneys in the sheriff 's hands, which had been made on confession, it was ordered that the whole amount should be paid into Court. Leonard v. Black, 6 Grant, 599. 7—Iden — Registered judgmient. The statute 13 and 14 Victoria, c. 63, s. 2, making a registered judgment a lien upon the lands of the debtor, does not apply to judg- ments obtained against the personal representative of a debtor. Ham- ilUm V. Beardmoref 7 Grant, 286. 8 — Foreclosure — Parties. In suits to foreclose the equity of redemption in mortgage property the judgment creditors of tho mortgagee are necessary parties. San- derson v. Ince, 7 Grant, 383. 9— Specific performance. Held, on appeal from the master's report, that a purchaser is enti- tled to call for a release from all judgment creditors who have rois- tered their judgments in the county where the lands sold are situate, 2p ^r-. V ■' im B'ti rM Hi 306 EOUITY DIGESi^. or that the creditors join in the conveyance to the purchaser, although it appears that the purchase money will be exhausted in discharging prior incumbrances. If the vendor cannot procure such release or concurrence in the conveyance, the Court will not compel the pur- chaser specifically to perform the contract, Spohn v. Ryckman, 7 Grant, 388. 10 — Lien. The lien of registered judgment creditors is not preserved by a bill filed before the 18th of May, 1861, but to which they were not made parties until after that day. The Bank of Montreal v. Woodcock, [9 Grant, 141) overruled. Shaw v. Ounnigham, 12 Grant, 101. 11 — Form of decree settinr/ aside deed for fraud — Dower of wife of grantor. In setting aside a deed for fraud at the instance of a judgment cred- itor, by a decree of this Court, the proper form is to ivoid the deed only as against the parties injured by the conveyance, and direct a sale of the property ; the Court will not simply set aside the deed and allow the judgment creditor to proceed and enforce his claim at law ; and where the wife of the grantor joins in such deed to bar her dower, it should be avoided only so far as passes the estate and in- terest of the grantor, the creditor not being entitled to the benefit of such release of dower. In such a case what is properly the effect fol- lowing from the release of dower, and to whose benefit it will ennure ? Quare. Where a debtor conveyed away his estate, in fraud of his creditors, to a person having a judgment against the debtor, which conveyance was declared fraudulent and void as against creditors, upon a bill fil- ed at the instance of certain of the creditors ; hrhl, in this respect varying the decree of the Court below, that the creditor to whom the conveyance had been made was not, under the circumstances, pre- cluded from enforcing his judgment against the lands of the debtor, the conveyance of which had been so avoided. (Vunkoughnet, C, dissenting) Bank of Upptr Canada v. Thomas, 2 E. & A. R., 502. 12 — Right to redeem by mefine incumbrwncer — injimdion Assignee. A judgment creditor offered to redeem a prior judgment creditor, whose vcn ex was in the sheriff's hands, and made an assignment of the judgment, but the prior judgment creditor (who was also a hold- er of a mortgage subsequent to the second judgment creditor) refus- ed to receive the money otherwise than in satisfaction of the judg- ir, although it 1 discharging jh release or apel the pur- . Ryckman, 7 rved by a bill 'ere not made Wooilcock, (9 It, 101. — Doiver of idgmentcred- void the deed and direct a do the deed, his claim at sed to bar her estate and in- the benefit of the cfiect fol- ; will ennure ? his creditors, li conveyance pen a bill fil- this respect to whom the nstances, pre- )f the debtor, koughnet, C, A. R., 502. EQUITY DIGEST. 307 nent and refused to assign, whereupon the second judgment creditor filed his bill to redeem and fur an injunction to restrain the sale. On the motion for the injunction it was held that he was entitled to redeem and to an assignment, and an injunction was accordingly grant- ed. Bank of British North America v. Moore, 6 U. C. L. J., 255. l^—Stop orders. This Court has no jurisdiction to grant a " stop order" at the in- stance of a judgment creditor of a party entitled to funds in Court. lee V. Bell, 2 Cham. Rep., 114. l^^ Final order after abortive sale. In ^ suit by a judgment creditor to set aside a fraudulent settle- ment, and to realize his judgment, praying the sale of the property on default in payment if the sale prove abortive. Semble, that the usual order for redemption, or in default, foreclosure, will be grant- ed, at all events it would be so if the judgment debt was subject to a prior mortgage which the judgment creditor would be entitled to re- deem. Commercial Bank v. Cooke, 1 Cham. Rep., 205, \o—Rerjistration. Where a bill has been filed prior to the 18th of May, 1861, all judgment creditors who had their judgments duly registered, are en. titled to be treated as *"rtics to the cause, though not actually nam- ed in the bill, and not added as such in the master's office until after that date, without having placed fi fas against lands in the hands of the sheriff. Bank of Montreal v. Wondcock, 9 Grant, 141. [Overruled by Shaw v. Cunningham, 12 Grant, 101.] 16 — Entitled to remedtj against land forfeited to his debtor. A judgment creditor had attached a debt due to the defendant as a security, for which land had been conveyed to the defendant, and a suit for redemption was pendinir, The bill in that suit was afler- warda dismissed for default in paying the money in pursuance of the report therein ; held, that the property having thereby in effect be- come substituted for the debt, the creditor was entitled to a sale thereof in this Court and payment of the proceeds towards satisfac- tion of the judgment. 77tc Bank of Eltrin v. Hutchinson, 13 Grant 59. 17 — Service on attorney ofjiul igneo of the upon and irchase oon- 'r, 2 E. & claim, 0. 8. sdiction, ort notice I'. Gould, 9per case lual time Ming SO' ^— Leave to appeal frani master's report. Notice must be given of a motion for leave to appeal from the mas- ter's report, after the usual fourteen days from the filing has elapsed. Cade V. Newlmll, I Cham. Rep., 200. cleave to make neiv application. Where an application has been refused, with costs, and a motion is made for leave to make a new application of the same nature on further evidence, the new evidence must be produced and the costs of the former application paid. Anonymous^ 1 Cham. Bep., 196. 5 — Leave for further time to answer. An application for further time to answer will not be granted er parte, notice should be served on tho pklntiff. Shanahan v. Fair- banks, 1 Cham. Rep., 297. Q— Leave to incumbrancer to prove claim— Petition— Notice of motion. Where an incumbrancer has neglected to appear in the master's office to prove his claim within the proper time therefor, and applies to the Court for leave to come in, tho application is more properly made on notice of motion than by petition. Anonymous, 1 Cham. Rep., 292. 7— Leave to appeal from master's report after confirmation On an application for leave to appeal from a master's report after confirmation, it must be shewn that the master is wrong, or at least that there is some reasonable ground for doubting the correctness of bis decision. Thompson v. Walker, 1 Cham. Rep., 266. S— Leave to answer after order x>ro confesso. On a motion for leave to answer, notwithstanding an order pro con- fesso, the answer sought to be put on the files should be produced to the Court duly sworn. Merrill v. Ellis, 1 Cham. Rep., 268. 9— Leave to amend. Where the time has elapsed for obtaining the usual order of course, to amend, the Court will not grant an order to amend as the plaintiff may be advised as an indulgence, on the ground that the plaintiff had intended to take out the usual order within the proper time, but had not done so, through a mistake of a clerk of his solicitor. Boioen v. Turner, 1 Cham. Rep., 268. 10— Leave to appeal. Leave to appeal was given to the plaintiff after tho expiration of a Ml K Mm ■■L'i:.. iff* ■ J ' 316 EQUITY DIGEST. year, when it appeared that delay had been caused by the depositioni in the cause having been mislaid by one of the defendants, and wh«r« the defendants, a banking institution, had in the meantime stopped payment, and their affairs, which were very extensive, had passed ig. to the hands of trustees ignorant of the matter. Bank of Upper Can- ada V. Wallace, 2 Cham. Rep., 169. 11 — Notice of motion by. Where an injunction is granted tu a particular day which is not i motion day, and the writ is served together with a notice of motion for that day to extend the injunction, the notice is not irregular, though it omits to mention that such notice is given by leave of the Court. Johnson V. Cass, 1 1 Grant, 117, LEOAOIES. Legatees. Legatees are not necessary parties defendant in an administration suit. Harrison v. Shaw, 2 Cham. Rep., 44. See Executor. LEGAL ESTATE. Re-conveying. See Foreclosure. See Injunction. L£jSS£i£i. LESSOR AND LESSEE. Injunction, 1,2. Right to cut timber, 2. Right of purchase, 3. Computation of time, 3. Heir-at-law, 4. Personal representative, I. 1 — Injunction — Might to cut timber. The owner of land with a saw mill thereon, made a lease of the mill with the right to cut timber during his lease, the lessee assigned the lease, and the assignee afterwards surrendered it to the proprietor of the freehold. Held, that the right to cut timber was only commen- surate with the lease itself, and the lease having been surrendered, the right of cutting timber was at an end, except for the use of the mill. Stegman v, Fraser, 6 Grant, 628. 2 — Injunction. The proprietors of a house in the course of erection, (which was intended to be used as an hotel,) made a lease thereof for a term of EQUITY DIGEST. 317 five yean, from the time of the completion of th^ building. The lease oontained amongst others a covenant in these worda, and the said lessee cootnants further with the said lessors that As will fur- tusk the said hotel in a substantial and good manner. Held, that this was a continuing covenant, and that the lessee was not at liberty during the continuance of the term to remove out of the house the forniture thereof, which he had placed in it. Rossin v. Joslin, 7 Grant, 198. ^Eight of purchase — Computation of time. By the terms of a lease it was provided that the lessee should have the right of purchasing the leasehold property, upon his desiring to do 80 " within the period of two years after the date of the commence- meat of the term" (the 1st of April, 1852.) On tiie 1st of April, 1854, the desire of purchasing was declared, and a tender of the pur- ohase money made, held, that the tender was within time, the day of the commencement of the term (1st of April 1852,) being exclusive. Sutherland u. Buchanan, 9 Grant, 135. ^Heir-at-law and personal representative. Where a lease for years contains an agreement for the sale of the fee, the right to purchase goes to the heir-at-law, not to.the personal rep- resentative, on the death of the lessee. Henrihan v. Gallagher, 9 Grant, 488. Affirmed on appeal, 2 E. & A. R., 338. See Evidence. LETTERS. LETTERS ROGATORY. Letters rogatory, such as are provided for by an Act of the Oon< gross of the United States, as issuable from any foreign Court, will "he issued by the Court here, althougb in the present state of our law, no reciprocal accommodation can be afforded here to suitors in the United States. In letters rogatory so issued here, the usual offer to render similar service when required was necessarily omitted. Such letters need not necessarily be in the name of the Sovereign, but were issued as from the judge of the Court of Chancery. United States v. Denison, 2Cham. Rep., 176. LICENSE TO DIG. See " Mineral Lands." W .J Ml \ ' * h 318 EQUITY DIGEST. LIEN. Of Vendon, 1. Equitable, 2. fugbtry Mt, 2. "* )lloltc - For unpaid purchoae money, 4. For balance of mortgage money, S. Keglatratlon of, 0. Of Bollultor. 7. Of BoUoiton, 3. 1 — Of vendor. A vendor of real estate nvho takes by way of seeurity for the pur. ohaso money the joint and several promissory notes of the vendee and surety, does not lose his lien on the estate for the purchase money though he took no mortgage therefor. Colborne v. Thomas, 4 Grant 102. A vendor's lien for unpaid purchase money, has priority over the lion created by the registered judgment against the vendee. Hugh- son V. Davis, 4 Grant, 588. / Where a sale was made and conveyance executed, before a Court u of Chancery, was established in Upper Canada. Held, that a vendor J had notwithstanding, a lien for unpaid purchase money. Davis v. I — ^nder, 4 Grant, 620. Such a lien was enforced against subsequent purchasers, who, when they acquired their interest, had notice of the purchase money being unpaid, lb. 2 — Registry act — Equitable lien. A deed of trust was executed by a debtor, and by a mistake in setting out the metes and bounds, a portion of the property intended to be conveyed was omitted, subsequently to which a creditor obtain* ed And registered a judgment against the debtor. Held, that the assignees in trust, were entitled to have the mistake rectified, and that the lien of the judgment creditor did not attach upon the land. McMaster v. Phipps, 5 Grant, 253. Note. This question could not arise now, a registered judgment no longer forming lien, Con. Stat., U. C, 894 and see also 24 Vic, ch. 41, s. 7. A creditor obtained judgment previously to the statute 13 and 14 Vic, ch. 63, which after the passing of that act, he registered. Subsequently to this, the debtor assigned to a third party his equi- table right as purchaser to certain lands, upon which a small balance of the purchase money remained due. Held, that the judgment so regbtered attached, and that the plaintiff was entitled to payment of his claim out of the proceeds of such lands, which upon a bill by the judgment creditor were ordered to bo sold; Dunovan v. Lee, 5 Grant, 345. The note above applies to their case also. ^^ » EQUITY DIGEST. 319 nonoy, t. ere money, «. y for the pur. of the vendee rohase monev »»a«, 4 Grant, •ritj over the idee. Hugh. ifore a Court bhat a vendor 7' Davis V, '8, who, when money being mistake in ty iDtended litor obtain. K that the 3tified, and n the land. idgment no 4 Vic., oh. to 13 and registered. ' his equi- Jl balance Igment so ayment of bill by the , 5 Grant, ^Solicitors producing papers. The rule that a solicitor is bound to produce documents sub- ject to any lien he may have upon them, does not apply when the person asking for their production is the party to pay the amount claimed. Moodie v. Thomas, 1 Cham. Bep., 19. ^—For unpaid purcluiae money — Infant — Costa. The purchaser of land from the ciown. sold and transferred hb right to 0, in 1834. C subsequently transferred his interest to T H who entered into possession, and remained in such possession un- til 1839, when ho died, leaving an infant son his heir-at-law. About a year alter his death, his widow assumed to sell the estate to E H a brother of her late husband, who entered into possession, and hav- ing subsequently procured from the original vendee of the crown, an assgnment of the same date, end in the some words as the one ex- ecuted by him to G, by means thereof procured from the crown the patent for the lot in his own name, and mortgaged the property to bis brother H H, who had notice of all the circumstances attending the title, and to whom E H afterwards released his equity of redemp* tion. In the spring of 1861, A H by means of an ejectment evict- ed £ H, who up to that time had continued in possession of the property, and in November of that year H H sold and conveyed the estate to S, who took without notice, and paid the whole of his pur- chase money except £175, for which sum the father of S gave his promissory note for the purpose of facilitating the carrying out of the bargain, S leaving in the hands of his father certaip seouities, out of which it was agreed that the father should collect means, over and above a sum owing by the father to S, to retire the note, which note however was not paid in full, £75 being still due thereon. In 1863 a bill was filed by the hcir-at-Iaw of T H claiming under the cir* cumstances to be entitled to the estate and to set aside the sale to S, which was decreed on the ground that the purchase money had not been paid, so as to entitle the purchaser to plead a purchase for value without notice. On appeal this decree was reversed, and the bill in the Court be- low ordered to be dismissed with costs. (Yankoughnet, C, and Spragge, V. C , dissenting.) Harvey v. Smith, 2 E & A, E., 480. 5 — For balance of niortyacje money. The owner of land after creating a mortgage thereon assigned his equity of redemption to a third party who covenanted to pay off the mortgage debt, and afterwards became the purchaser of the mortgag- ^!f«y ., km- '♦' i 320 EQUITY DIGEST. I'- n In? i i i m ri ed premises, under a decree at the suit of the mortgagee, and at the sale the amount realized was not sufficient to cover the amount due to the mortgagee, Heldj that under the circumstances he was not entitled to any lien on the estate for the deficiency, Forbes v. Ad- anuotif 1 Cham. Rep., 117. 6 — Registration of — Reversal of decree. A decree made on further directions was registered against the lands of the defendant. Subsequently the original decree was revers- ed on rehearing. The order then made did not specifically reverse the decree on further directions. Upon an application to discharge the lien created by the registration. Held, that the order reversing the original decree destroyed the lien, but that the Court could not make an order directly effecting it. Graham v. Chalmers, 2 U. C. L J. N. S., 269. 7 — Delivery of papers. Where a solicitor refused to carry on a suit unless money was ad- vanced, or to deliver up the papers to a new solicitor until his costs in the suit were paid, the Court, on application by the client, ordered a taxation, and directed the papers to be delivered up to the new solicitor upon his undertaking to hold them subject to the lien, if any, of the former solicitor, and to rc-deliver them within ten days after he ceased to have occasion for them for the purposes of the suit. Ley V, Brounif 1 Cham. Rep., 179. A deed ordered to be executed under a decree of the Court was sent by the solicitor of the vendor, after having been executed by him, to the defendants for the purpose of being executed by them, which they accordingly did in the presence of an attorney employed by them for that purpose. Held, that such attorney was not entitled to a lien upon the conveyance so executed for any amount beyond his disburse- ments and for preparing the affidavit of execution. Crooks v. Street, 1 Oham. Rep., 220. Property was sold under order in the suit, and the conveyance and a mortgage, which was to be given back to the vendor, were perpared at the purchaser's expense. After engrossment of the deeds by the solicitor for the purchaser, they were given to the parties for execu- tion, and the conveyance (executed) was returned to the solicitor of the purchaser, the mortgage being retained by the vendor. Held, on a motion by the vendor to compel the delivery of the conveyance by the solicitor to him as mortgagee, that the solicitor, by delivering the engrossment to the vendor for execution, had lost his lien thereon for the costs of preparation as against the vendor (the mortgagee) and •^ 'ff^i < EQUITY DIGEST. 321 vas consequently bound to deliver it up to him. Held, also, that the application was properly made in the matter in which the sale had taken place. Re Sproule, 1 Cham. Kep., 896. The solicitor of a purchaser who had prepared the deed and mort- gage of the property bought, was held to have lost his lien thereon when he delivered the deed to the vendor's solicitor without any stipu- lation about the lien. S. C, 1 Cooper's C. & P. R., 20. See Crown Debt — Equitablk Estate — Equitable Execu- tion— Ij^fants— Judgment Creditor — Mortgage — Partner- BHiP— Railway Company— Registration— Vendor's Lien — Wild Land Taxes. LLMITATIONS (STATUTE OF). 1 Quaere. Has the recent statute of limitations, 13 and 14 Vic, c. 51, a retrospective effect. Crooks v. C'Ool:s, 4 Grant, 615. 2 An executor has a right to retain a dubt barred by the statute of limitations. lb. 3 A father, being desirous of assisting his sons, put them in pos- KMion of portions of his real estate, and frequently expressed his in- tention and determination to convey such portions to the sons ; during the continuance of such possession, however, the father was frequent- ly on the premises, assisting with his advice and directing the actions oi his sons in improving the property, and conveyed an acre to one of the sons, and subsequently sold u valuable portion occupied by the same son. By his will the father devised his lands to be divided between all his children. Held, that the sons had not, under the circumstances, acquired a title under the statute of limitations, 4 William IV., c. 1. Foster v. Emerson, 5 Grant, 135. A mortgagee having obtained possession by ejectment has a good title after 20 years, notwithstanding that during these years an ad- ministration order of the estate of the person, not being the mortgagor, entitled to the equity of redemption, had been obtained. Crooks v. Watkins, 8 Grant, 340. Dormant equities. A person seeking to invoke the aid of the statute of limitations against a claim in repeal of lands, must shew that he and those under whom he claims have been in possession of the land, or what in law is equivalent to possession. Arner v. McKenna,^ Grant, 226. In 1834 a contract was made for the purchase of the easterly fifty aoTM of a lot of land, but through mistftke the deed ooTered the whole 2|i 5fe B ' ■' ■ 1 ^^^■' ( / ; 1 ll ,,j ^^ m !i^''. 322 EQUITY DIGEST. north half, thus conveying the legal title to the north-easterly and north-westerly quarters, but the purchaser went into possession of the portion actually intended to be conveyed, and shortly after the ven- dee of the westerly portion went into possession of and occupied it without any disturbance of his title or assertion of right by the party to whom the conveyance had been made by mistake (although all parties knew of the error that had occurred) until the year 1857, when the assignee of the person holding the legal title instituted proceedings in ejectment, and recovered judgment, the evidence of adverse posses- sion not being suflicient lo outAveigh the legal cflect of the deed which had been so erroneously executed. The Court, upon a bill filed for that purpose, restrained the owner of the legal title from proceeding to recover possession, and ordered him to convey the legal title in the land to the plaintiff, who was equitably entitled thereto, and to pay the costs of the suit. lb. See MoRTaAQE. LIMITATION OF TIME (FOR BRINGING ACTION). See Insurance, LIMITED PARTNERSHIP Although parties may enter into an undertaking intended to form a limited partnership only, still they may act in such a manner cither knowingly or unknowingly, that a general partnership may be created as to third parties ; and when this occurs with the consent and con- currence of all parties, the efiFect may be to make them answerable not only as to third parties, but between themselves. Patter son v. Holland, 6 Grant, 414. Although the members of a limited partnership may act in such a manner as to create a general partnership, not only as to third per- sons, but also inter se, still if the acts whereby a general partnership, as to the world, is created, are done by some of the partners without the knowledge or consent, or against the consent of the others, they will not be entitled to contribution ftom the others, but will be liable to indemnify them against the consequences of the acts so done, lb. But see S. C. post. Grant 7, p. 1. A large number of persons agreed to form themselves into a limited partnership under the statute in that behalf, but several of them in- stead of paying in the amount of their contributions to the partner- ship fund in cash, the same was paid by means of promissory notes. v^m EQUITY DIGEST. 323 easterly and ission of the er the ven- occupied it y the party although all 1857, when proceedings 'Crso posses- deed which )ill filed for proceeding title in the d to pay the 3TI0N). led to form inner either jT be created it and con- answerable '^atlerson v. : in such a third per- •artnership, 2rs without thers, they 11 be liable done. lb. a limited theiu in- partner- lory notes. Upon a bill filed by some of tho partners seeking to compel their co-partners to contribute towards making up a large deficiency ascer- tained on the winding up of the affair of the conjpany, held, that the circumstanceip which had transpired rendered the parties general partners, not only as to the third parties, but also betw^een themselves. (Esten, V. C, dissenting.) Patterson v. Holland, 7 Grant, 1. One of the members of a co-partnership, established upon the prin- ciple of limited liability, was appointed manager of the business, and while acting in that capacity furnished from his shop goods for the . use of the partnership, upon which he charged the usual trade profits. Held, that prima facie these transactions could not be sustained, lb. LIS PENDENS. " lien. In September, 1855, one 6 entered into a contract [which was never registered] with one M for the sale to him of a lot of land ; in October, 1857, tho plaintiff recovered and registered a judgment against G, and thereby acquired priority over M on the lot sold by him, and in March, 1861, filed a bill against Q to enforce their judgment against the lot contracted to be sold to M as well as against other lands of G, to which bill the plaintiff [having no notice of the contract] did not mako M a party, a certificate lis pendens being however registered, In March, 18G2, M obtained from G, under the contract a conveyance of the lot, which he registered in Septem- ber, 1862, and the plaintiff becoming aware thereof, applied ex parte on tho 10th of June, 1864, under the order of 29th of June, 1861, for and obtained an order to make M a party in tho master's office. Held, on appeal to the full Court, ( Vankoughnel, C, dissenlienle.') that the suit was not pending as against M prior to the date of the order to mako him a party ; that therefore there was no suit pending against him on the ISth of May, 1861, and in consequence that the lien created by registration of the plaintiff's judgment against the lot the subjeot of the contract, was gone, and that M was not a neces- sary or proper party to tho suit, and that the order to make him a party should be discharged. Jiison r. Gardiner, 1| Grant, 23. Where a decree on further directions had been registered against the lands of a defendant, :ind afterwards the original decree was re- versed on rehearing, the Chancellor held that the order reversing the original decree destroyed the lien, but that tho Court could not mako an order directly affecting it, observing, on an application to discharge the lien created by the registration, that the Court oannot disoharg^Q MW..' f -', mm m' F 324 EQUITY DIGEST. a lis pendens in this manner, the only way of getting rid of whioh it to obtain an order dismissing the bill. Graham v. Chalmers, 2 Ohan. Rep.f 53. Where a certificate of lis pen>lens has been registered under the Statute, and the bill is afterwards dismissed, it is not necessary to obtain an order discharging the certificate of lis pendens from the registry. The registration of the decree dismissing the bill being sufficient for all purposes. (Spragge, V. C.) Dexter v. Cosford, 1 Cham. Rep., 22 ; S. C-, 5 U. C. L. J., 67. See Lien. LOCATEE OF CROWN. The Court will, at the instance of a judgment creditor of a locatee of the crown with execution against lands in the hands of the sher- iff, direct the interest of the locatee to be sold, and order him to join in the necessary conveyance to enable the purchaser, under the decree, to apply to the crown lands department for a patent of the land as vendee or assignee of the locatee. Yale v. Tollerlon, 1 3 Orant, 302 LOSSES. Decree for payment of. See Insurance. LOST DEED. G, in consideration of his support and maintenance, conveyed to MoR certain land. The arrangement fell through, and the land it was alleged was re-conveyed by a deed which was supposed to have been lost, and which contained a covenant for further assuranoe. Before such re-conveyance however, G made a similar arrangement with R, and MoR at the instance of G conveyed the same land to K. This arrangement was also abandoned ; a new one similar in its object was entered into between G and N, whioh lasted for upwards of six years, and the conveyance executed pursuant thereto was considertd effectual. With full notice of this, K also entered into an arrange- ment with G, and with his consent took a conveyance from R, whioh gave him the legal estate. N having died, his son filed a bill alleging the loss of the conveyance by MoR and seeking to compel the execution of another deed by him to G in place of the lost one, or a conveyance to himself, as claiming under G; praying also that K mi^t be ordered to join in such cooveyanoe. At the examination of witn< attome denied Bwer so flupport dismiss ings rel was not to the f G, not of his being suit ha( betweei .».-■- , EQUITY DIGEST. 325 of which ii '•*, 2 Cham. under the ecessary to » from the bill being Cosford, 1 >^ a locatee ■ the sher- lim to join the decree, ic land as Jrant, 302 nveyed to le land it I to have iGsnranoe. ingement ind to K. its object ds of six nsidertd arrnnge- l, which 1 a bill compe] lost one, ilso that iinatioD of witnesses the supposed lost deed came to light, in the bands of the attorney with whom it had been deposited, but its genuineness was denied by McR. K had supported for some timo, and in his an- swer sought to avoid the conveyance to N by alleging insufficient support of 6 ; under these circumstances the bill as against McR was dismissed with costs, but it being considered that under the plead- ings relief might properly be given as against K, although the bill was not filed principally with (hat object, K was ordered to convey to the plain tils', on receiving compensation in respect of his support of G, not exceeding the amount which N had agreed to pay in the event of his failure to provide G with support; the plaintiff as against K, being allowed only such costs as he would have been entitled to if the suit had been instituted against him alone, upon the equity existing between himself and K. Nickles v. Mc Roberts, 10 Grant 473. LOST WILL. A will was prepared and sent to the testator, and was subsequent- ly seen, signed by the testator, in the hands of his wife, by the father of the residuary legatee and devisee, who read over the will, and im- mediately on his return home made a pencil jotting of the names of the executors, as well of the several bequests other than the provision for the wife, and five days before, his death the testator told him that his will was still in existence, and that he had given it to a person , whom he refused to name, for the purpose of having a codicil prepar- ed, and a second memorandum was made by him from the words of the testator of what ho said the will contained, which agreed substan- tially with the first memorandum. After the death of the testator no trace of the will could be discovered, and a bill having been filed for the purpose of establishing the will, the Court made a decree for that purpose, and directing probate thereof to be granted to the executors named therein. Bessey v. Bosttoick, 13 Grant, 279. LUNACY. Where the estate of a person who has been found to be a lunatic is of small amount, the Court will combine in one reference to the master all the usual inquiries, although the several objects are in England the subjects of distinct and separate references. Re Dug. gan, 2 Grant, 622. A special act passed in Upper Canada in 1827, authorized a oom- miasion to issue to inquire into the lunacy of one P. V., and if he Bbonld be found a lunatic the act directed a committee of his estate I I \ '^A- iji,. l,,,i!ri:>^:V ., > 326 EQUITY DIGEST. \M If 'F,'^ « to be appointed, and authorized such committee to sell his goods and lands and to invest the proceeds in bank stock or real securities, and enacted that whatever remained of such investments at the lunatic's death, should be distributed among his legal representatives, accord- ing to law. Held, that such residue was personal estate, and was to be distributed among the next of kin. Clarke v. Rultan, 11 Grant, 416. On an application in lunacy the Court ordered the sheriff to im- .>anel a jury for the then next sittin2;s of the Court. The matter wag !- i. proceeded with until the sittings succeeding the next, and the matter then coming on. Held, that the panel was not properly con- stitutec^ that the sheriff's authority to summon a jury was confined ij the i^rbt sitlings after the date of the order. In Re McNulty, 13 Grant, 464. Semhle, an alleged lunatic should receive the same notice of a trial before the Court as of an inquisition under the former practice, lb, Sbe Lunatic. LUNATICS. Acts relating to 1. Setting aside conveyance, I Medlcu evidence, 4. Rights of purchaser of, 3. Matters should be dihpo..ed of before same judge, 5. • Notice, (5. 1 — Acts relating to. In the case of lunatics, idiots, and persons of unsound mind, and their property and estates, the jurisdiction of the Court shall include that which in England is conferred upon the Lord Chancellor by a commission from the crown under the sign manual, 9 Vic, ch. 10, s. 1, Con. Stat., U. C, 52. The word "lunatic" is used in the subsequent sections of this act as including an idiot or other persons of unsound mind, 9 Vic, ch. 10, s. 1. The Court may, on suflScicnt evidence, declare a person a lunatic, without the delay or expcnce of issuing a commission to enquire into the alleged lunacy, except in cases of reasonable doubt. 20 Vic, ch. 56, s. 5. When a commission has been issued, and an inquisition thereupon returned into Court, by which a person is found a lunatic ; in case any one entitled to traverse the inquisition desires to do so, he may within three months from the day of the return and filing of the inquisition, I ^^^ EQUITY DIGEST. 327 present a petition for that purpose to the Court, and the Court shall hear and determine the petition subject to the following provisions. 9 Vic, ch. 10, s. 2. 1 In every order giving effect to such petition, the Court shall limit a time not exceeding six months from the date of the order, within which the person desiring to traverse, and all other proper parties shall proceed to the trial of the traverse, but the Court may under the special circumstances of any case, and upon a petition being presented for that purpose, and upon the circumstance being substan- tiated upon affidavit, allow the traverse to be had or tried after the time limited, and in such special case the Court may make such orders as seem just, 9 Vic, ch. 10, s. .3. 2 The trial may be ordered to take place in any Court of record, in Upper Canada, or before a judge of the Court of Chancery, with the aid of a jury, according to the circumstances of the case and the situation of the parties. 9 Vic, ch. 10, s, 3. 20 Vic, ch. 56, s. 13. 3 The Court may order that the person to traverse, if he is not the party who has been found lunatic, shall within one month after the date of the order, file with the registrar of the Court a bond, with one or more sureties in favor of the registrar for the time being, aud conditioned for all proper parties proceeding to the trial of the tra- verse, within the time limited. Such bond, before the filing thereof, being approved and certified to be sufficient by the judge of tho County Court of the County in which the parties reside, or by one of the judges or masters of the Court of Chancery. 4 Every person who does not present his petition, or who neglects to give the security, or who does not proceed to the trial of the traverse within the times respectively limited therefor, and the heirs, execu- tors and administrators of every such person, and all others claiming through him, shall be absolutely barred of the right of traverse. 9 Vic, ch. 10, s. 3. In case the Court declares a person a lunatic without issuing a commission, any person who might traverse an inquisition to the same efiect, may move against the order containing the declaration, or may appeal therefrom, as the case requires ; and the right so to move or appeal shall, as to time, be subject to the same rules as the right to traverse. 20 Vic, ch. 56, s. 5. In case the Court be dissatisfied with the verdict returned upon a traverse, the Court may order a new trial, or more than one trial, as in other oases. 9 Vio., oh, 10, s, 4. II & 1 p, ,', r. ■ - , r 5l ; 1] 1 ', ''••j^:j '• ft^ ft , if -uA- 328 EQUITY DIGEST. Id order to afford due protection to the property of luaatios, theftl. lowing provisions shall in every case be observed. 9 Yio., ch. 10, 1.5. 1 The committee of the estate shall give two or more responsible persons as sureties, in double the amount of the personal estate, and of the annual rents and profits of the real estate, for duly accounting for the same once in every year, or oflener if required by the Court, and the security shall be taken by bond or recognizance in the name of tbe r(^istrar of the Court for the time being, in such manner as the Court or a master thereof may direct, and the same shall be filed in the office of the registrar. 2 The committee of the estate shall, within six months after being appointed, file in the office of the registrar a true inventory of the whole personal or real estate of the lunatic, stating the income and profits thereof, and setting forth the debts, credits and effects of the lunatic, so far as the same have come to the knowledge of the com- mittee. 3 If any property belonging to the estate be discovered after the filing of an inventory, the committee shall file a true account of the same from time to time, as the same is discovered, and every inven- tory shall be verified by the oath of the committee. 9 Vic, ch. 10, s. 6. Whenever the pcisonal estate of a lunatic is not sufficient for the discharge of his debts, the following steps may be taken. 9 Vic, ch. 10, s. 7. 1 The committee of his estate shall petition for authority to mortgage, lease or sell so much of the real estate as may be necessary for the payment of such debts. 2 Such petition shall set forth the particulars and amount of the estate, real and personal, of the lunatic, the application made of any personal estate, and an account of the debts and demands against the estate. 3 The Court shall by one of the masters or otherwise enquire into the truth of the representations made in the petition, and hear all parties interested in the real estate. 4 If it appears to the Court that the personal estate is not sufficient for the payment of debts, and that the same has been ap- plied to that purpose as far as the circumstances of the case render proper ; the Court may order the real estate, n- a sufficient portion of it, to be mortgaged, leased or sold, either by the committee or other- wim. EQUITY DIGEST. 329 ttica, theAl. ch.10,1.6 responsible estate, and Jountingfor urt,an(ith« lame of the iner as the all be filed after beiog tory of the ncome and fectsofthe f the com- i after the UDtofthe ery inven- c, ch. 10, nt for the ^Vic.,ch. hority to necessary iDt of the de of any ainst the enquire ind hear ! IS not >eeo ap- render portion r other- 5 The Court shall direct the oommittee to discharge such debts oat of the money so raised, and tbo Court may order the committee to execute conveyances of the estate, and to give security for the due application of the money, and to do such other acts as may be necess- ary, in such manner as the Court may direct, and in the application of any moneys so raised, the debts shall be paid in equal proportion, without giving any preference to those which are secured by sealed instruments. When the personal estate, and the rents, profits, and income of the real estate of the lunatic, are insufficient for his maintenance or that of his family, or for the education of his children, an applicatiou may be made by the committee, or by any member of the family of the lu- natic, that the committee be authorized or directed to mortgage or sell the whole or part of the real estate, as may be necessary, upon which the like reference and proceedings shall be Imd, and a like order made as for the payment of debts. 9 Vic, ch. 10, s. 8. In case of any mortgage, lease or sale being made, the lunatic and hia heirs, next of kin, devisees, legatees, executors, administrators and assigns, shall have the like interest in the surplus which remains of the money raised, as he or they would have in the estate if no mort- gage, lease or sale had been made, and such money shall be of the same nature and character as the estate mortgaged, leased or sold, and the Court may make such orders as are necessary for the due applications of the surplus. 9 Vic, ch. 10, s. 9. When a lunatic is seized or possessed of real estate, by way of mortgage, or as a trustee for others in any manner, the committee may apply to the Court for the authority to convey such real estate to the person entitled thereto, in such manner as the Court may di- rect, and thereupon the like proceedings shall be had, as in the case of an application to sell the real estate, and the Court upon hearing all the parties interested may order a conveyance to be made, and on the application by bill' or petition of any person entitled to a conveyance the committee may be compelled by the Court, after hearing all par- ties interested, to execute the conveyance. 9 Vic, ch. 10, s. 10. Every conveyance, mortgage, and assurance made by the committee under direction of the Court, pursuant to any of the provisions of this act, shall be as valid as if executed by the lunatic when of sound mind. 9 Vic, ch. 10, s. 11. The Court may compel the specific performance of any contract made by a lunatic, while capable of contracting, and may direct the 2s M S30 EQUITY DIGEST. -I committee to ezeonte all neoeseary oonveyances for the purpose, and tbe purchase money, or so much thereof as remains unpaid, shall be paid to the committee or otherwise as the Court directs. 9 Vic, oh. 10, s. 12. The Court may order any expenses and costs of and relating to the said petitions, orders, directions and conveyances, to bo paid and raised from the lands, rents or personal estate of the lunatic, in respect of which the same were respectively made, in such manner as the Court thinks proper. 9 Vic, oh. 10, s. 13. 2 — Setting aside conveyance of. A y, being the owner of valuable lands, became infirm in miad, he believed he could control the elements, and asserted power in him- self to recall from death, and in various other ways, for several years previous to his death, constantly exhibited indications of mental in- firmity. While in this state, the members of his family, by an ar- rangement between them, entered into possession of the real estate, and severally worked it and enjoyed its profits. W and P, children of A Y, and M, his wife, obtained from him conveyancer to them respectively of all his real estate, whicli were executed in picsence of an attorney, and there was some evidence of a money consideration having been paid A Y for them. It was not shewn conclusively that these conveyances were executed in a lucid interval. A Y having died intestate, on a bill by the heir of N, one of A Y's children, these conveyances were set aside as fraudulent, with costs, and W, P and M were ordered to account for rents and profits. Young v. Young, 10 Grant, 365. 3 — Rights of purchaser under lunatic without notice of his state of mind. The father of P and J died during the infancy of J, leaving to them by his will 100 acres of land. After they attained majority this land was by deed equally partitioned between them. J was a person of weak intellect, without knowledge of land or money, and unable to read or write. P afterwards obtained from J a conveyance of his fifty acres, and executed a bond in his favor, charging this fifty acres with the payment of £50 per annum during J's life. P then mort- g^ed the hundred acres, and obtained from J a release of the annuity bond, which was executed in the presence of the solicitor of the mort- gagees without any good consideration therefor. On a petition filed to have J's lunacy declared, the evidence was taken in presence of the parties so interested in the land. J was declared a lunatic, but EQUITY DIGEST. 331 mrpose, aqj aid, shall be 9 Vio.,ch. md relating to bo paid e lunatic, io uch manner n in mindj wer in him- iveral years mental in- ) by an ar- real estate, P, children if to them piesenceof nsideration Jsively that Y having 8 children, and W, P Youug V, ■ice of his ng to them y this land person of unable to ice of his fifty acres len mort- e annuity the mort- tion filed esence of fiatic, but as no sufficient evidence was produced to prove notice to the mortga- gees or their solicitor of his imbecility wh«n the mortgage was execut- ed, this declaration was made without prejudice to mortgage, but allowing the committee of the lunatic to impeach it by bill if so advised. In re Mc Sherry, 10 Grant, 390. j^Medical evidence — Practice. An application to declare a person a lunatic without the expense of a commission must be supported by affidavits of more than one medical man. Sembte, also that notice of the application should be given to the lunatic, but it will be dispensed with where service on the lunatic would be dangerous to him. The fitness of the proposed committee must be shewn in affidavit. In re Patlon, 1 Cham. Kep., 192. 5 Lunacy matters should be dispoocd of before one and tho same judge. In re Milne, 1 Cham. Rep., 194. Q—Notice. Before granting an order declaring a person a lunatic ho must bo served with notice of the application, und any counsel or other person he may desire to see in relation to the matter must be allowed access to him. In re Miller, an alleged lunatic, 1 Cham. Rep., 215. See Guardian Ad Litem — Lunacy. LYNDHURST'S, LORD, ACT. 5 and 6 William IV., c. 54. Held, that Lord Lyndhurst's act, 5 and 6 William IV., c. 54, does not extend to tho colonies. Hodgim r. McNeil, 9 Grant, 305. MAINTENANCE. SsE Mortgage — Voluntary Conveyance. MARRIAGE. Evidence of. The testimony of a woman of the ceremony of marriage having been performed, and evidence of respectable witnesses of the general repu- tation of the marriage, held sufficient proof of it, notwithstanding that it was not proven that the clergyman who performed the ceremony was duly authorised, and that evidence of reputation of marriage alone was sufficient proof. Baker r, Wilson, 8 Grant, 376. .1 !■ t. I.:ii.' m m ' 332 EQUITY DIGEST. A separation deed executed by the deceased husband, 3in he acknowledged the plaintiff as his wife, with proof of payments made to her under it, and a certified copy of the registry of marriage from the parish registry in Ireland ; held sufficient evidence of marri^ against infant defendants, the adult defendants, by tlicir answer, ad- mitting the marriage. Cra'g v. Templeton, 8 Grant, 483. See Maeriaqe Settlement — Marriage with Deceased Wife's Sister Married Woman, MARRIAGE SETTLEMENT. By an ante-nuptial settlement it was recited that the intended wife was seized in fee of certain lands, Sic, and had also a clain} S certain other property over which she hud not at the time an abs< 'control or dominion, and that it had been agreed that her intcnv.. isbaod should enter into such covenants, &c., concerning all the real and personal estate ns should or might be acquired from time to time by the said intended wife during the intended coverture, as were there- in contained concerning the lands of which she was then seized, and which were thereby conveyed to the trustees, and the intended hus- band covenanted that he would allow his intended wife, during the intended coverture, to receive to her own use the rents and profits of the lands &c., so conveyed ; and also, if he should become interested in right of his intended wife in any real or personal estate which should thereafter be given or bequeathed or descend to her, he would allow the same to remain at her entire disposition, and that he would join with her in " conveying, assigning and assuring all such prop- erty as shall hereafter descend to or be given or bequeathed to her, to the trustees upon the same trusts and subject to the same provisos, «5*c., as are erpressed herein lelative to the lands, Sj-c hereinbefore conveyed.^' Held, that this bound the wife to bring property after- wards given or devised to her into settlement, but that it did not bind lands of which she was then seized in reversion. Ridout v. Gwynne, i Grant, 505. Bill to change trustees — Personal conjidence. By a clause- in a marriage settlement it was stipulated that trustees should at their option during the life of the intended husband per- mit him or the intended wife to take and use the rents, issues and profits of the trust estate to their own use ; and by a subsequent clause it was provided that new trustees should be appointed in cer- tain contiDgonoics. Upon a bill filed by the wife to appoint a new EQUITY DIGEST. ij|33 oQHH, (rostee by reason of tho residence oi* one out of the juriadictioi that this trust was one of personal confidence and could not be executed by a trasteo appointed by the Court, and it appearing that the bus- band had not been heard of for upwards of four years, the Court under the circumstances appointed a new trustee, and directed him to pay one-half of the rents to tho plaintiff, and the other half to be inye&t> ed for the benefit of tho husband. Tripp v. Martin, 9 Qrant, 20. Setting (uude — Parties. Although the consideration of marriage is one of the most valu- able, still a settlement upon the marriage, either of tho settlor or a cbild of the settlor is, like any other conveyance, liable to be impeach- ed as void under the Statute of Elizabeth, on tho ground of having been made to hinder and delay creditors. Where therefore a per- son in embarrased circumstances hastened the marriage of his daugh- ter, and made a conveyance of all liis real estate to a trustee for the benefit of his daughter and the issue of tho intended marriage, hav- ing stated to the solicitor who prepared the conveyance, and to the trustee that his object in so doing was to prevent his property from being seized by his creditors, and there being a strong presumption that the daughter and her intended husband had also been informed of the object of the settlor ; the Court upon a bill filed by a judg- ment creditor against the husband and wife and their infant children to set aside such settlement, declared the same void as against cred- itors : notice by tho trustee of tho fraudulent purpose of the settlor being sufficient to bind the issue of the marriage. To such a bill the settlor is not a necessary party. Commercial Bank v. Cook, 9 Grant, 524. See Foreclosure. MARRIAGE WITH DECEASED WIPE'S SISTER. The intestate, H M, was married in this Province in 1850, to the sister of his deceased ~i^<>, by whom he had children, and died in 1856. Held, that the marriage though voidable during the lives of both parties to it, yet that its validity not having been called in ques- tion jtill ai\er the husband's death, it must now bo treated as indissol- uble, and that the issue thereof must be treated as heirs. Hodgins V. McNeil, 9 Grant, 305. Held also, that Lord Lyndhurst's Act [5 and 6 Wm. IV, cap. 54] does not extend to the Colonics. lb. I ;• 1,. >^;. u;v 334 EQUITY DIGEST. MARRIED WOMAN. Separate estate of, 1, 2, 3. iTUBtee and cestui qui trust, 3. Ante-nuptial scttlrment, 4. Arbitration, refe.enco to, by, 5. Misrepresentation, 6. >nswer by, 7, 8, 9. Pro con. , 10. Motion, 9, H. Certificate of execution by, 15. Conveyance by, 13. Practice .as to, 16. Service of bill on, 14. 1 — Separate estate. In a suit by a married woman respecting her separate estate, she must sue separately from her husband (by her next friend) and must make her husband a defendant, as otherwise the proceeding is looked upon as exclusively the suit of the husband, and would not be conclusive on the wife or those claiming under her. Houlding v. Poole, 1 Grant, 206. Property stood limited in trust for such purposes or persons as the wife should appoint, and in default of appointment,' in trust for the wife and her heirs. The wife appointed ^art of her estate to her husband in fee, and the other part in trust for herself and children. Held, that these appointments were authorised by the power, but it being sug- gested on affidavit that they were made under the exercise of undue influence on the part of the husband, further enquiry was directed. Fenton v. Cross, 7 Grant, 20. 2 — Registrat io n. A married woman, jointly with her husband, conveyed her estate absolutely to a trading con:pany, and at the same time the company executed a covenant that they would reconvcy upon certain stipulations being complied with, which they accordingly did several years afterwards ; but while the estate was vested in the company, and before the passing of the act for the relief of married women, a judgment was recovered against the husband, and duly registered. Held, that this registration bound the estate of the hasband, and his interest being equitable, was not affected by a sale of his interest under an execution at law at the suit of other creditors. Ferrie v. Kelly, 9 Grant, 262, 3 — Trustee and cestui qui trust — Hrparatc estate of. The owner of real estate conveyed the same to trustees for his daughter, E S, one of whom was her husband, to dispose thereof m surk manner as the said E S, her heirs and assigns may at any time advise or direct, and to make such leases, and further to make such conveyances in fee simple of the said lands, S^c., as the said E S, her heirs, i^c., may al any time udv/ar or direct. The trustees created a mortgage in which E S joined. Held, that the convcyaoco EQUITY DIGEST. S35 to the trastees effected a settlement to the separate use of £ S, that her joining in the mortgage was a sufficient direction to the trustees, that the mortgagee was not, under the circumstances, bound to see to the application of the money, and that in default of payment he vas entitled to the usual decree of foreclosure. Place v. Spawn, 7 Grant, 406. ^Ante-nuptial settlenunt — Lmvs of Lower Canada. By an ante-nuptial settlement made in Lower Canada in 1833, ac- cording to the laws there in force, it was agreed between the parties to the proposed marriage that no communion of property between them should exist, but that each should hold and continue to enjoy what each then bad or should thereafter acquire. In 1848, certain goods and chattels of the husband were sold at sheriff's sale, on ex- ecutions against th2 husband, and having been bought in by a third party, were by a deed of donation conveyed to the wife for her sep< arate use. The parties having removed to Upper Canada, brought with them these goods which were seized under executions issued on judgments obtained against the husband. Held, that the marriage settiement and deed of donation , properly vested the goods therein mentioned in the wife, and that they were not liable to seizure for her husband's debts. Ryland v. Alnutf, 11 Grant, 135. 5 — Reference to arbitration by. A having duly made his last will and testament, whereby he de- vised certain real estate in separate parcels to B and C, afterwards incumbered these lands, which incumbrance was un-removed at the time of hi:-) death. B was a feme covert, and questions having arisen between B and C as to the amount of the incumbrance to be borne by each, they by mutual bonds in which B and her husband joined, agreed to refer such questions to arbitration, and an award having been made between these parties ; Held, that B being nfeme cover! could not enter into such an agreement to refer, avi that the provisions of the law as to conveyances by married woman of their real estates, did not apply to agreements to refer, and that therefore such agreement and award were not binding on her, Bagley v. Humphries, 11 Grant, 118. 6 — Misi'epresentauon by. Where a married woman joined with her husband in making mis- representations to the executor of a deceased person, in order to ob- tain possession of a chattel belonging to the testator, the Court upon appeal from the master held her to be responsible for such misrepre-^ |B I -f H ■■■■■ '; 336 EQUITY DIGEST. Iftj^lf 1 1 ff ., I 340 EQUITY DIGEST. liii V :«*!-* B 1 — Proceedings in the master's offix:e — Costs. An application to compel a party having the carriage of an order made on an appeal from a master's report to proceed with an enqairv in the master's office should be made to the master who has posses- sion of the case, and not to a judge in chambers. Miller v. Me. Naughton, 1 Cham. Rep., 206. 2 — Practice— Parties — Orders of 18o3. A mortgagee who has been in possession and who has assigned his interest to his co-mortgagees is not a necessary party in a suit of foreclosure. Russell v. Robertson, 5 U. C. L. J., 118. 3 — Notice to mortgagor. Under the orders of February 1858, relative to foreclosure suits where the bill is taken pro confesso against the mortgagor, it is not necessary to serve him with the notice set forth in the schedule B to said orders. Bahy r. Woodbridge, 5 U. C. L. J., 4 — Consideration of mortgage. Vansickler v. PetlU, 5 U. C. L. J., 164. 5 — Priority — Incumbrance rs. An incumbrancer has no right, in the master's office, to impugn a prior judgment on the ground that it was irregularly obtained at law. Hamilton v. T/iornhill, 8 U. C. L. J., 73. 6 — Service of luarrant. A warrant requires two days' clear service. A master's certificate should follow as nearly as possible the accustomed form, where it does not it will be assumed that the master means to report specially. Sutherland v. Rogers, 2 Cham, Rep., 191. MASTER'S REPORT. Appeal from, I. FMng. 2. Proceedings under, 2. Silence of as to reference directed, 3. Mistake in practice, i. 1 — Appeal from. Upon an appeal from the master's report, although it would have been more satisfactory to the Court and also in accordance with the practice, to have referred the case back to the master or directed re- argument of the case, the Court, considering the great delay and ex- pense to which the parties had been already subjected, undertook the settlement of the account, and made an order varying the finding of the master to suit the true state of the accounts between (he parties T^r EQUITY DIGEST. 341 f an order an enquirj has posses- 'Ifer V. Me. IS assigned in a suit of osuie suits I*) it is not edulc B to impugn a ned at law. i certificate icre it does ; specially. ected, 3. luld have with the irected re- T and ex- )rtook the 6nding of le parties go far as the evidence would enable them to do. Saunders v. Christie, 7 Grant, 149. A decree for the sale of property was directed at the suit of a surety of the mortgagor. In proceeding to take the accounts it appeared that the mortgagee bad paid off such prior incumbrances, and tbe master in taking the account allowed him credit for the sums so paid, although no direction to that effect was given by the decree; the surety insisting that, as between him and the mortgagee, he was en- titled to receive credit for the gross amounts produced at the sale, without any reference to the sums so paid to the prior incumbrancers, appealed from the master's finding in this respect. The Court dis- missed the appeal with costs. Teetor v. St. John, 10 Grant, 85. The master's report is prima facie evidence of what it contains un- less appealed from. No motion founded on such reports can be enter- tained while the appeal is unheard. But qxKsrc in regard to such matters as do not enter into the appeal. Nichols v. McDonald, 6 Grant, 594, and U. C. L. J., v. IV., p. 260. Under the order of this Court, abolishing exceptions to the master's report, the appellant occupies the same position as, under the whole practice, he would have done before the master on bringing in excep- tions, and with that single restriction the whole case is open to him on the appeal. Davidson v. Thirkell, 3 Grant, 330. %-Filing 'proceedings under. Such master's reports as are from their nature final, do not /equire to be filed fourteen days before proceedings may be taken on ^hem. In re Yaggie Infants, 7 U. C L. J., 293. 3 — It must clearly appear that the master reports on the question referred to him, no inference will be drawn from the mode in which the account is taken. Edwards v. Burling, 2 Cham. Rep., 48 ; 2 U. C. L. J. N. S., 302. 4 — Mistake in — Practice. Where the master in proceeding to take an account under decree or :forther directions, finds he has made a mistake in taking the ac- counts under the original decree, he is not at liberty to correct such mistake by his subsequent report. The master having without the order of the Court reviewed his first report, and corrected by his subsequent report an error found in the first. Held, that the master exceeded his jurisdiction, and that the . If M 'ii'- 342 EQUITY DIGEST. objection being apparent on the face of the report, the objecting party was not driven to appeal. Crooks v. Street, 1 Cham. JElep., 78. See Master — Master's Office — Practice. MEMBER OF PARLIAMENT. Where a party having privilege of parliament had been in contempt for non-compliance with an order of the Court, and the order nisi for a sequestration had been duly served ; but between that and the ap- plication for the writ to issue, the party had ceased to be a member, the Court refused to grant the writ, and directed the party moving to commence proceedings for the contempt de novo. Meyers v. Har- rison, 4 Grant, 148. MERGER. C, being the sixth mortgagee, filed his bill against the holder of the equity of redemption and other incumbrancers. The prior mortgagees were not parties to the suit. A sale having been direct- ed, was conducted by the solicitors for one of the defendants, and C became purchaser of the premises at a sum less than his mortgage debt ; the conditions of sale contained the following clause : — " The said premises will be sold subject to prior mortgage iacumbrances, amounting in the aggregate to the sum of £1,831." C then bought up the three first mortgages, and had them assigned to a trustee for his benefit, and in ether respects shewed his intention to retain them as outstanding liens. He also entered into negotiations for time with the holders of the fourth and fifth mortgages, proposing as part of the terms in case time were given him, to treat the first three mortgages as discharged. These negotiations failed ; G, the fifth mortgagee, redeemed the fourth, and foreclosed as owner of tlie equity of re- demption. The three first mortgages having been assigned to the plaintiff, held, on a bill by him on them against G, that these three mortgages had not merged in C's equity of redemption, and that the negotiation between him and the present holders of the equity of re- demption having proved abortive, could not be set up to bar the right of action of C and his assignee upon these' mortgages. Beaty v, Gooderham, 13 Grant, 317. Where a mortgagee of lands buys up the equity of redemption, taking a conveyance to himself, his charge will merge or not, accord- ing to what may appear to have been the bargain between the parties to the transaction at the time of his obtaining tho transfer. Finlayson v. Mills, 11 Grant, 218. ' im EQUITY DIGEST. 343 Where a derivative mortgagee took a conveyance from the original morigagors, and there was no express stipulation as to whether there should be a merger or not ; but the conveyance taken from the mort- mgors was therein declared to be made in consideration of the settle- ment of a suit of foreclosure between the parties to the deed, and in satis&otion of the grantee's lien, claim and interest on the property and subject to the lien and interest of the original mortgagee, and the grantee gave to one of the mortgagors a bond of indemnity against any claim that the original mortgagees might have against him in respect of the original mortgage debt. Held, the debt to the grantee (the derivative mortgagee,) was at an end, and the balance due the original mortgagee was the only charge on the property, lb. Premises, having been twice mortgaged, were sold at sheriff's sale to S, who afterwards obtained an assignment to himself of the first mortgage. Held, that he might still claim the sum due on the first mortgage, no merger having taken place. Semble, that in this re- spect our law is more favourable to S's position than English law would be. Elliott v. Jayne, 11 Grant, 412, See Easement — Mortqage. MESNE INCUMBRANCERS. See Mortgage. MINERAL LANDS. 1 The owner of lands, supposed to contain certain valuable ores, executed to two persons an instrument in writing, (intended to be under seal, but by mistake not sealed,) to dig for minerals on the land, they agreeing to give the owner of the soil one-twentieth part of all the minerals they might find or take from the property. Heldf [first,] that the interest intended to be conveyed was an incorporal freehold or tenement, and could only be created by an instrument un- der seal, [second,] that if it was intended to operate as a license (mly,\i would be revocable, and the Court would not make a decree to es- tablish a right or interest which might be immediately revoked* Ross V. Fox, 13 Grant, 683. 2. The holders of a license to dig for ore made voluntary trans- fer of their right to another, and subsequently the licensor duly con-' veyed, for value, a like privilege to others, who also purchased from the original licensees their interest, and entered upon and worked the lands. Nearly three years afterwards the assignee of the firat lioeQB6 i . ^■. -h. - i .'■r. :-,,■ , , ■;;<,/ m 344 EQUITY DIGEST. H-- %^M filed a bill seekiDg to enforce an exclusive right to dig. The Ootut under the oiroumstances diBmissed the bill, with costs, lb. 3. A party to whom a license to dig for ore, (the grantor being entitled to a royalty of one-twentieth part of the ore,) was granted, wh described in the instrument as a miner, and he subsequently trang. ferred his right to another, without authority from the owner of the soil. Heldf that the case came within that class in which the per- sonal skill, knowledge, or other personal quality of the grantee, is i material ingredient in the contract, and therefore the right could not be assigned, lb. MINORS. Making a title where heirs are minora. When the heirs are minors the Court has jurisdiction, on petition of the executor and executrix, to make an order vesting the estate in the purchaser, or as they may direct. This course will enable a title to be made free from any doubt. See Imp. Stat. ; 11 Geo. 4, and 1 W. 4, ch. 60 § 6, and 11, 3 Daniel's practice, Perkins' edition, 206, Gonsol. Stat. U. G. ch 12 § 25, 26 and 63. Donaldson v. Berry, 2 Cham. Rep., 16. ■mi f*1 \'''T> bf m MILL DAM. See Injunction. See Injunction. MILL SITE. MISAPPLICATION OF RATES, See Injunction. MISCONDUCT. See Pabtnershtp. MISCONDUCT (OF EXECUTOR.) See Executor. MISCONCEPTION. See Abatement. MISJOINDER. See Dxuurubr-'Pleadino. ■ i'm EQUITY DIGEST. MISNOMER. Ses Certificate op Jcdqment. 345 MISREPRESENTATION. See Married Woman— Mortqaqe. MISSING DEED. See Specific Performance. MISTAKE. Ai to value of property appropriated under a dlviiilon, 1. Id order, 2. In report, 3. School property, 4, Voluntecris, 4. Municipal council, 4. Preparation of deed, 4. 1—A8 to value of propcrti) appropriated under a division. A division of the residuary personal cstutu of a testator was made between his legatees with their concurrancc, appropriating to one of them as part of her share, a mortgage for about £10,000, assumed to be good, but which from defective title, and other causes, was not worth one fourth of that sum. Hehl, that in consequence of the mis- take as to the character and value of the mortgage, the appropriation was not binding on such legatee. Clarke v. Hawke, 11 Grant, 527. 2 — In order. Where an order for sale has been taken out ex parte by mistake, in lieu of an order for foreclosure, the Court will vacate the order for sale, and grant an order for foreclosure ex parte. McGiliivray v. Cameron, 1 Cham. Rep., 197. Z—In report. In a foreclosure suit, a judgment creditor proved in the master's office £30 too much on his claim. The mortgagor did not appear in the master'soffice ; and some months after, this defendant the judgment creditor had been paid in full, the mortgagor discovered the mistake Ad application was then made to have the amount overpaid refund- ed. It was contended that the report so far as the claim of the judg- ment creditor was concerned, must be considered his report, and that the mortgagor was entitled to have it rectified with costs. Lan- ders v. Allen, 6 Simons, 620. Taylor v. Baker, 5 Price, 306 were cited, y. C. Esten, granted the application with costs. Bank B. N. A. V, McDonald, 2 Cham. Rep., 88. 2v 1 rr^C mi 346 EQUITY DIGEST. 4 — School iiropcvty — Vohmteers — Municipal council — Preparation of . Xement to extend time. 77. injf face of, 120. AmondlnB decree, 90. Amount ilalmod, 34. Annual rostfi, 06. AnDlieation of hiHuranco money, 81, 110. " " paymentH, 32, 8a. 132. Assignment, 81, 114. " t)v executors, 73. " of right to impeach prior mort- (fttgo, 75. Assignment, payment without notice of. 70. " of cipiity of redemption, 77. Bankrupt, t)0. Breach of covenant, 110. Certillcitc of rc(,'istration, 60. Chamiwrty, 7.'i. Collateral security, 20. Compromise, 131 Ciwts, i'i, 23, 31, 36, 60, 70, 74, 80, 92. Ill, 112, 118. County Court, 70. Covenant, brc.ich of, 110. " to insure, 123. " to give notice, 42. " to pay, 78. " to release, 83. Djunige.i, 17. Deed or Mortgajro, 110. Decree, 11, !)3, 00. Discharge, 131. Dormant cquilie.4, 72, 113. Dower, 2, 61). Duty of Mortga.rcc, 91. Eiilarglu',' time fur payment, 108. Equity of redemption, 103, 120. Equitable mortgage, 139. Evidence, 61, 74. Felling timber, 9. Piling more than one bill. 111. Final order for sale, 100. Floatnig balance, 63. Foreclosure, 2, 21, 65, 95, 115. Improvements, 38, 40. In«f6mnity,81. Indorsement, security for, 138. Infanta, 2!), 130. Iniitalments, 28. ^ I 'mction, 0, 24, -iS. y^ %> lii>urc, covenant to, IBs. ' Insurance money, 81, 116. Irregularity, 35. Joint tenant, 104. Judgment, 47. Judgment creditor, 27, 55, 62, 115." Udies, 30. ion, 97,123,120. Limitations, Ntatulo of, 72. Maintenance. 75. Merger, 4, 09. Misrepresentation, IJ. Mortgage or no mortga;;c, 30. " under direction of Court, 109. " or deed, 110. Notloo, 5, 40, 6.'. Nullity, 35. Occupatioiirent, 6.'), 67. One of several niortgagcs not duo, 3. Opening foreclosure, 9i>. Partnership, 7. I'arol ovideneo, 30, 43. Parties, 44, 40, 65, 123. Partnership debts, 88. Parol a^eoment, 60. Paying off mortgagee, 127. Payment after artNignmcnt, 59. " without notice of assignment, 76. Payments, application of, 32, S3, 132. Petition, 20. Place of payment, 12. Pleading, 09. Power of sale, 101, 107, 122. Practice, 79, 90. Priority, 6. Proof of claim in maator's office, 85. )lo-borrowing, 80. tfeceiver, 89. Redemption, 19, 26, 33, 16, 72, 112. Hcfcrenco as to ownership, 133. Kvgistration, 5. ilegistercd judgment, 69. Release, 130. Rent, occupation, 60, 67. Rents and profits, 15, 40, 39. Re-registeruig judgmei\t, 61, 115. Rests, 66. Right to rc-purchase, 105. liival claimants, 120. .Sale, 8, 43, 40, 60, 62, 73, 87, 103, 105. Sale or mortgage, 45. iiale \nider fl. fa. , 60. Secondary evidence, 33. .Security for endorsement!', 133. Suparato estate, 49, 64. " security, 88. Set ofT, 84, 114, 13.5. Sheriff's sale, 43, 52. ijtatute of frauds, 78. " Wm. and Mary, 13. .Surrender of bond to re-convey, 121. Tacking, 5, 16, 17, 82, 102. Tenants in common, 104. Term of years, 9. Time to redeem, 25. Trustee, 37, 44, 119. Truitcu and ccsmi que trust, 71, 8i5. llnpatentod larids, 61, 100. Usury, 57, 124. \'cndco of mortgagor, 10. ■"•Velch mortgage, 36. Wrong lot, 04. 1 — Assignee. Whore the administratrix having bought at sheriff's sale, the in- terest of the mortgagor paid off tho mortgage debt, and treating the property as her own absolute estate, afterwards mortgaged the premises ; the Court at the instance of the heir-at-law of tho mortgagor directed an inquiry as to whether the property was 348 EQUITY DIGEST. purchased at sheriff's sale \rith the assests of his ancestor, and that the amount so applied, should be deducted frcm the amount due upon the mortgage given by his ancestor, and that he should be let in to redeem upon payment of the balance. Wnrnn iv Mackenzie, 1 Grant, 436. 2 — Foreclosure — Dower. Where a mortgagor had executed several mortgages in one only, of T^hich his wife joined the proper decree on a bill of foreclosure against the widow and devisees of the niortgiigor, is one in the usual form against them all, with a declaration tliat upon payment of the mort- gage executed by the widow, she sliould if she chose be let into her dower. Thibodov. Collar, I Grant, 147. 3 — One of the several mortr, and that >t due upon be let in to (ickemie, 1 Jne only, of lure against usual form f the mort- et into her same land, fc mortgage It notice of of the first chased the imstances, >n the pro- mortgagor a further lays after- upon pay- sd to hold against a ween the im in fee, F the con- 'al Bank, has been of 1850, registra- 'his deci- '^—Partnership. Where a mortgage was made to secure a partnership debt, a final order of foreclosure was granted, althouajh one of the co-partners had not executed the power of attorney to receive the mortgage money, or made affidavit of non-payment ; it appearing that such partner was, and had been for some time resident, out of the country, and had never interfered in the mortgage transactions in any way. Counter v. Wylde, 1 Grant, 538. 8— Sale. Qucere. Whether a mortgagor praying a sale, can have it where the subsequent incumbrancers or the mortgagor do not consent. BetJiune v, Caulcoll, 1 Grant, 81. See also Mijcrs v. Harrison, 1 Grant, 449. A mortgagee is entitled to a decree for sale or foreclosure, at his option, as against the mortgagor of term of years. Myers v. Har- rison, 1 Grant, 449. 9 — Tcnn of years — Injiiacttoii — Felling timber. The mortgagee of a term of years being in possession of the mort- gaged estate, will at the suit of the mortgagor be restrained by injunc- tion from felling timber on the mortgaged premises, although the mort- gagee may have obtained the consent of the reversioner to what he is doing. Chisholni v. Slieldon, I Grant, 318. 10— Vendee of morf/fagor. Where on the sale of an estate, the purchaser executed a re-con- veyance by way of mortgage to the vendor, and afterwards conveyed a part of the property by a deed, without covenants, which contained a clause in the following words, '* that I the said A M, and my heirs and assigns, and every of them from all estate, right, title, interest, property, claim and demand of, into or out of the said parcel or tract of land, or any part thereof, are, is and shall be by these pres- ents forever excluded, and debarred." Upon a bill filed by his ven- dees, the original purchaser (and who had executed the mortgage) was decreed to reimburse his vendees the amount they should be com- pelled to pay, in order to discharge such mortgage ; and in default, a sale of the portion of the estate retained by him. Maitland v. Mc- Dilij, 1 Grant, 575. 11— Decree. Form of a decree upon a bill by a mortgagee against the infant heir of the mortgagor. Sanderson v. Coslon, 1 Grant, 349. •.! ^ \ % m' W: V- 350 EQUITY DIGEST. 12 — Place of payment of moHgarje money. An order gi'anted cliangii^; place for payment of mortgage money. Jones V. Bailey, 1 Grant, 353. 13 — Statute Willlain and Mary. Where a second mortgage docs not notice the first and contains absolute covenants for title, but there is no allegation in the pleadings and no other evidence than the mortgage thus affords that the mortgag- or did not inform such second mortgagee of the first mortgage before the execution of the second, the Court will assume such to be the case so as to vest the equity of redemption in such second mortgagee under the statute 4 and 5 William and Mary, c. 16, s. 3. Meyers c. Harrison, I Grant, 449. 14 — Account of sum actually advanced. Where the amount of money advanced on mortgage is less than the sum mentioned as the consideration money, the mortgagor is at libei'ty, in taking the account in the master's oflice, to shew the true sum advanced with a view to reducing the amount of his liability, al- though he has not appeared to or answered the bill. lie cannot, however, be permitted to shew that the contract was usurious. Pern V. Lockwood, 1 Grant, 547. 15 — Rents and profds. Where a mortgagee takes posicssion of the mortgage premises and. evicts a tenant of the mortgagor, who is willing to continue in postics- sion and pay rent, the mortgagee will be held accountable. Venn i\ Lockwood, 1 Grant, 547. IG — Assignee of mortgaye — Tacking. Where tlmrc were three mortgages on the same property and the third was taken without notice of the second, and was afterwards transferred to another person, who thereupon obtaincil a conveyance to himself of the first mortgage. Ile/d that he could not tack this third mortgage to the first : and the Court refused a reference to en- quire whether the assignee had or had not notice of the second when he took the conveyance of the third mortgage. McMnrran i\ Burn- ham, 2 Grant, 280. 17 A mortgagor conveyed his equity of redemption to a third person, and afterwards contracted to release to the mortgagee, and the latter having no notice of the prior conveyance, paid the mortgagor some part of the consideration he liad contracted to give for the iuieasc. Held, that he v,'as entitled to tack what he had so paid to his mort- gage debt. Gordon v. Lmhinn, 2 Grant, 293. EQUITY DIGEST. 351 Note. The doctrine of tacking was never favoured by our Court, and was only adopted under the weight of English authorities, until abolished by statute — the Registry Act of 1850. The above cases are given as shewing the principle governing the decisions under the then existing law, but such questions could not now arise under our registry acts, whereby registration is notice, and tacking is abolished. 18 — Misrepresentation. Where a debtor, in order to effect a compromise with his creditors, offered a mortgage on certain property, which property he represented as belonging to another person who desired to assist him, and the creditors accepted the offier and took the mortgage, but afterwards discoTcred that before it was executed the debtor had obtained a con- veyance of the property to him&clf. Held, that such conveyance was, under the circumstances, subject to the mortgage. Fraser v. Suth- erland, 2 Grant, 442. IQ— .Redemption. In 1821 the plaintiff mortgaged three premises (in Belleville, Kingston and Camden) to secure a debt payable in the following year. It was not then paid. Payment was urgently demanded in 1827, the mortgagees being then in great pecuniary difficulties, and the debt still remaining due, the mortgagees sold and convey- ed, with absolute covenants for title, the property in Belleville, for what appeared to have been about its value at the time, and they gave credit for the amount on the mortgage. This property afterwards passed through several liands, and was bought by the present owner in 1837, who subsequently made considerable improvements on it, and dealt with it as absolute owner. Held, that this property was not redeemable by the mortgagor, or a bill filed in ISCO, and that the effect of the sale and transfers by the mortgagees of the portion of the mortgaged property wns to transfer to the purchasers, a part of the mortgaged debt, proportioned to the value of the property transferred, as compared with the whole property mortgaged. Mc- Lelland v. Maitland, 3 Grant, 1G4. 20— Collateral seciiritij. The holder of £2000 government debentures, the payment of which depended on certain contingencies, assigned them to the defendants, and delivered to them his bond to secure the interest, upon which the bank passed the whole amount to his credit — subsequently the ,,■ ! 352 EQUITY DIGEST. defendants obtained from the debtor, security for the principal as well as the interest, and for another debt which he owed them. The debtor about the same time, assigned his interest in the debentures to G S B, and the defendants afterwards accepted a release of part of the mortgaged property, in part payment of the amount iL'eoured by the mortgage. The mortgaged property was then sold by the defen- dants for much less than the amount of the debentures w'aioh were afterwards paid in full by the government. It appeared from the plaintiff's books, and their communications with the government that they did not consider themselves entitled to both sums. Held, that the plaintiff who was the assignee of G S B's interest in the deben- tures was entitled to the proceeds of the property sold. Covert r. Bank U. C, 3 Grant, 246. 21 — Foreclosure — Where Instalment or interest due. Where default in payment by a mortgagor of any instalment of, or of interest upon mortgage money, the mortgagee has a right to call in the whole amount secured by the mortgage. Cameron i\ Mc Rae 3 Grant, 311. 22 — Costs — Absolute deed. A mortgagee who takes a deed absolute in form, instea d of with a defeasance, and then fraudulently denies the right of redemption, setting up the deed as constituting an absolute purchase, is guilty of such misconduct as will subject him to the payment of costs of the uit. Letarge v. LeTiiyJe, 3 Grant, 595. 23 — A ccount — Costs. A mortgagee having omitted to give credit on the deed, or in his books, for sums of money paid to him by the mortgagor, his executors, after his decease, claimed a large sum to be due on the foot of the mortgage. The mortgagor tendered a certain amount, saying at the same time that he was willing to pay any additional sum, that might appear due, after giving him credit for the sums alleged to have been paid. A bill was afterwards filed by the representatives of the mort- gagee to foreclosure, and on taking the account, a sum of between £2 and £3 over and above the amount tendered, was found to be due. The Court under the circumstances ordered the plaintiff to pay the costs. Cornwall i\ Brown, 3 Grant, G33. 24 — Injunction. The Court will restrain the attaching creditors of an absconding defendant from selling timber improperly cut, upon land mortgaged by the defendant to the plaintiff. Thompson v. Crocker, 3 Grant, 653. EQUITY DIGEST. 353 ('*- ■ipal as well hem. The sbenturesto e of part of teoured by the defen- W'ivjh were 5tl from the nment that ^eld, that the deben- Corert v. (€. ment of, or ight to call t'. McRae I of with a edemption, is guilty of 3sts of the ) or in his executors, bot of the ing at the hat might have been the mort- f between to be due. ) pay the isconding lortgaged 3 Grant, 25— Time to redeem. Prima facie a mortgagor is entitled to six months to pay amount of mortgage money, to induce the Court to exercise the di£jretioa vested in them, by the general orders of directing an immediate sale or a sale at an earlier day, some special ground must be shewn. Rigney v. Fuller, 4 Grant, 198. 26 — Redemption — Where refused. The Court refused relief on a bill to redeem, filed in 1852, by a mortgagor, who had given a mortgage to certain executors in 1827, payable in 18.32, on property of not greater value than the amount secured upon it. The mortgagees having in 1S32, after the mort- gagor's default, sold the property for less than was due on it, and the mortgagor having thereupon given possession to the purchaser, in pursuance of a letter from the acting executor (since deceased) to the mortgagor, informing him of the sale, and requesting him to give the vendee possession, ''in which case the executors relinquish all claim against you for the interest in arrear, &c." Chile v. McCaulay, 4 Orant, 410. 27— Judgment creditoi's. In suits of foreclosure, when there are several judgment creditors, the decree should give the creditors successive rights of redemption, although very short periods must be fired for that purpose. Carroll V. Hopkins, 4 Grant, 431. 2S— Instalments. After payment of what is payable upon a mortgage, payable by in- stalments, pursuant to the orders of 1853, it is irregular to take any farther proceedings in the cause until another instalment falls due. lb. 29 — Infants — Petition. Where for the purnose of a suit, it is necessary to obtain an order for the execution uf a conveyance by infant representatives of a mortgagee not parties to the cause, the proper mode of applying ia by petition. Owen v. Campbell, in Re Mills, infants, 4 Grant, 630. 30 — Parol evidence. The decree of the Court of Chancery in the case of Holmes v. Matthews, 3 Grant, 379, reversed, and the plaintiffs bill dismissed. Matthews v. Holmes, 5 Grant, 1. 2w t'^if* '.' I 364 EQUITY DIGEST. "W 31— Coats. Where after a mortgage debt has been reduced to a sum of about one pound fourteen shillings, the mortgagee who had taken an ab- solute deed, distrained for forty pounds, claiming that amount to be due ; the Court upon a bill filed by the mortgagor to redeem, re- fused the mortgagee his costs. Lon^ v. Glenn, 5 Grant, 208. 32 — Application of payments. The debtor of a mercantile firm, being desirous of extending his transactions with his creditors, executed to them a mortgage to se- cure the sum of £2000, subsequent transactions between the parties to a large amount took place, and during one year alone, the sums charged to the debtor, including the sum due on the mortgage, amounted to £30,000, and after four years dealing between the par- ties from the time of executing the mortgage, an account was deliver ed to the debtor, shewing a balance of £1641 against him. Upon a bill filed to foreclose the mortgage for the amount, the Court held that the transactions which had taken place, discharged the mort- gaged debt. Buchanan v. Kerhy, 5 Grant, 332. 33 — Redemption — Laches — Secondary evidence. Where a security was eflFected by an absolute conwyance, and a bond conditioned to re-convey, on payment of the debt, but instead of doing so, the mortgagee sold and conveyed the premises to other per- sons, whom the plaintiff alleged however, had notice of the true title, but the only notice having been shewn to be a mere casual conversa- tion which took place in a bar room of a tavern, upwards of fifteen years before the filing of a bill by the mortgagor to redeem; the Court refused redemption, and dismissed the bill with costs. Clark V. Little, 5 Grant, 363. 34 — Amount claimed. The solicitor of mortgagees gave to the mortgagor a memorandum of the amount due, and, relying upon this, a third party purchased the equity of redemption. Upon a bill to redeem the Court held the mortgagees not bound by the amount given in the memorandum, the evidence shewing that the solicitor was not aware that the mortga- gor had made the enquiry on behalf of the purchasers of the equity of redemption. Moffall v. Bank of Upper Canada, 5 Grant, 374. 35 — Irregularity — Nullity. In a foreclosure suit, the defendant, after having been arrested for contempt in not answering, employed the agent of the solid- ',m ^.f ' EQUITY DIGEST. 355 tor for the plaintiff to defend the suit ; and after several proceedings by consent, a decree was made directing the money to be paid on the 25th day of May, 1841. Three days before the time appointed for payment the plaintiff died, and the solicitor acting in the cause sub- sequently obtained an order appointing a now day for payment, and afterwards the final order for foreclosure by consent without taking any notice of the death of the plaintiff. The representative of the plaintiff afterwards conveyed to the trustee for the creditors of his ancestor, and he sold to a third party, who again sold to tho solicitor for the plaintiff, through whose agent all the proceedings had been taken, but who was ignorant of the defects existing therein. The defendant in the cause having died, his widow and devisee, about twelve years afterwards filed a bill to redeem, setting forth the above facts. Held, (per Blake, C.,) that the proceedings after the death of the plaintiff were nullities ; the solicicitor must be taken to have had no- tice thereof, and the right to redeem had never been foreclosed. But held, (per Spragge, V. C.) that the proceedings were merely irregu- lar ; that the solicitor was a purchaser for value without notice, and was not bound by the facts within the knowledge of his agent, and that, under the circumstances, the right to redeem had been extingu- ished. Arkell v. Wilson, 5 Grant, 470. 36— Welch ino rtgage — Costs — A ccountlng. A party in possession of the land under an agreement in the nature of a welch mortgage having refused to give any statement of rents re- ceived, or information as to the amount due, a bill was filed by the mortgagor for an account. Notwithstanding that in taking the account between the parties a balance was found to be still due to the defendant, the Court ordered him to pay the costs of the suit. Morrison v. Nevins, 5 Grant, 577. A party files his bill for an account at the peril of costs, and he mast place the accounting party clearly in the wrong, or he will be decreed to pay his costs, lb. Semhle The finding of a balance in his favor will not of itself en- title the mortgagee, even of a welch mortgage, to costs if he has wrongfully refused to account, lb. 37 — Mortgagee — Trustee. A bill was filed against a trustee for an account and re-conveyance. At the hearing a decree was drawn up by "consent, treating the de- fendant in all respects as a mortgagee. Held, upon an appeal from the master's report, that from the time of the decree the rights of the 366 •EQUITY DIGEST. parties respectively must be determined by the rales ordinarily appljc. able to cases of mortgage. Kerby v. Kerhy, 5 Grant^ 587. 38 — Tmprovenunts. A mortgagee, in possession of a grist mill and other property, erect- ed a carding and fulling mill upon the premises, the expense of this was disallowed to him as being an improvement that a mortgagee could not make without consent. Ih. 39 — Laches — Mortgage or no mortgage. A creditor brought an action against his debtor to recover his de- mand, which was stayed by an arrungcment made in October, 1840. the debtor assigned to the creditor the house and premises occupied by the debtor, when in addition to the amount of the debt a sum in cash was paid him, and for two years he continued to receive the rent of the premises, when the creditor obtained possession by an action of ejectment. In December 1855 the defendant filed his bill, setting up that the transaction was a mortgage, alleging that his poverty in the meantime prevented him from enforcing his claim. The Court, though inclining to dismiss the bill, directed an issue as to the question of mortgage or no mortgage. Watson v. Munro, 5 Grant, 662. Note. The inquiry granted in the above cause, would at first sight seem to admit evidence, and necessarily parol evidence, on the question of " mortgage" or " no mortgage," but it will be seen that the inquiry was granted with extreme reluctance, and perhaps from an overtenderness to any supposed rights asserted. The master under such reference would be bound by the decisions of Holmes & Mat- thews, Barnhart & Greensheilds, and the authorities governing the reception of parol evidence. 41 — Notice. A mortgagor conveyed his equity of redemption in certain lands together with the absolute estate in other property, and took back a mortgage on the whole to secure part of the purchase money. The purchaser afterwards transferred his interest to a third party. The mortgagee, with a knowledge of the transfer by the mortgo jr, filed a bill of foreclosure against him alone, in which suit he outained a final decree of foreclosure, and afterwards sold and conveyed the estite to another party, who afterwards died intestate. The person really interested, considering that the foreclosure had the effect of binding his interest, rented the property from the grantee of the mortgagee, and also entered into a coutract for the purchase of it from him. After- TT? EQUITY DIGEST. 357 IllC- wards, upon discovering his rights, he filed a bill against the heirs at law to redeem. The denial of notice was imperfect, and it appeared that what the purchaser paid for the property was just what was due on the mortgage, and less than the fair value of the property. At the hearing the Court directed an enquiry as to whether the ancestor had notice, actual or constructive, at the time of his purchase of the title of the defendant or his vendor as to the sufficiency and ful- ness of the consideration paid, and as to the circumstances generally attending the purchase, reserving further directions and costs. Hogg V, Wallis, 6 Grant, 150, 42 — Covenant to give notice, dc. A mortgagee with power of sale, covenanted that no sale or notice of sale should be made or given or any means taken to obtain pos- session of the mortgaged premises, without first giving three months' notice to the raortgagor, demanding payment. Held, that this did not prevent him filing a bill to foreclose, without first giving such notice. Lamb v. McCormac':, (5 Grant, 240. 43 — Sheriff's sale of lands — Parol evidence. A person having a claim against tho owner of a mill brought an ac- tion against his executors, and recovered judgment ; an execution against lands was sued out and placed in the hands of the sheriff, under which all the lands of the testator, of which the mill and mill premises formed a portion were duly advertised for sale by the sheriff. The testator, by his will, had devised his lands to his re- lations; the mill and mill premises to an infant, on his attaining twenty-one, his father, during his minority, being entitled thereto* By an agreement made by the adult devisees with a friend of the family, it was arranged that this person should attend at the sheriff's sale and bid such an amount for the whole property as would cover the execution debt and costs, and that he should hold the same for the several owners ; accordingly he attended at the sale and bid the stipulated amount, the proprietors and their agent also attending there and preventing any competition by openly announcing the arrange- ment which had been made, and only one bid was made for the pro- perty, which was duly conveyed by the sheriff to the purchaser, who afterwards conveyed to the devisees their respective portions of the estate upon being paid a proportionate share of the amount bid at the sale, except the mill and mill premises, which the purchaser retained, occupied and improved during the minority of the devisee, who on his attaining his full age demanded a conveyance, which demand the • •■;-^ I 'i^ 358 EQUITY DIGEST. purchaser refused to comply with, alleging the purchase thereof to have been for his own benefit, whereupon the devisee filed a bill to compel the purchaser to carry out the arrangements. The Court, under the circumstances, held the plaintiff entitled to redeem the mill premises, and that the arrangement under which the purchase was made at sheriff's sale was capable of being proved by parol evidence, McGill V. McGlashan, 6 Grant, 324. 44 — Parties — Trustees. The owner of real estate being indebted, conveyed his lands to another for sufficient to pay off his liabilities, without any reference to the value of the property of which he remained] in possession, and sold to third parties, subject *' to a conveyance to Lieu. General Mur- ray, intended to operate as a mortgage." It was proved by the evi- dence taken in the cause that the avowed object of General Murray was to relieve the owner from his embarrassments, and secure his lands from seizui*e, but the same having passed under the will of General Murray to trustees, one of them refused to allow a redemption, ez' cept under a decree of the Court. The Court considered that the evidence clearly established the conveyanee to have been given by way of security only, and the vendees had a right to redeem ; that the trustee had not acted unreasonably in requiring the right to re- deem to be established in the Court, and that one of the trustees being beneficially interested in the estate, the cesluis que trust were sufficiently represented in the suit. Kerr v. Murray, 6 Grant, 343. 45 — Sale or mortgage — Question of. A lessee of the crown being in arrears for rent, assigned his interest to another, taking a bond to re-convey one half thereof, on payment of half the amount advanced within a year, which time having been allowed to elapse without payment of this sum, the assignee refused to convey, alleging that the transaction was a conditional sale. Upon a bill filed to redeem, the Court held that under these circumstances the transaction was prima facie one of mortgage, and that the onus of proving it to be a sale devolved upon the party attributing that character to the transaction, which having failed to do, a decree was made for redemption, v\ith costs, except the costs of a redemption suit, which were reserved until after the master's report. Bostwick v. Phillips, 6 Grant, 427. 46 — Redemption — Parties — /mp roveme nts — Rents and Profits. It being doubtful at what time the mortgagor died, his widow and all his children joined in a suit to redeem, in order that all questions TIT EQUITY DIGEST. 359 thereof to i a bill to The Court, ;m the mill rchase was I evidence. ia lands to y reference ession, and neral Mur- )y the evi- •al Murray e his lands of General iption, ex- that the given by eem; that ight to re- stees being rust were pant, 343. is interest 1 payment ving been 36 refused e. Upon imstances I the onus iting that ecree was ition suit, >stwick V. ta and idow and questions under the act abolishlDg the law of primogeniture might be avoided ; at the bearing the Court gave leave to furnish proof of intestacy by affi- davit, with a view to niuking the decree as asked. Senible. That when a mortgagee is charged with rents and profits received from improvements made by himself, it would be unreasonable to refuse to allow him the expense of such improvements to a corresponding amount. Constable v. Guest ^ G Grant, 510. 4 7 — Dainages — Judgment. The owner of property sold and took a mortgage to secure pay- ment of the purchase money by instalments : default having been made in payment of the first instalment, an action was brought and judg- ment recovered upon the covenant, whereupon the purchaser filed a bill setting up that a tenant of the vendor had by virtue of a lease previously made by the vendor, carried away the crops from the prem- ises, and praying to redeem upon payment of the amount of the judgment, after deducting therefrom, the value of the crops so taken away, The Court by consent of parties, directed a reference to the master to enquire as to the amount of damages sustained by reason of the removal of the crops, but refused to interfere with the judg- ment already recovered, the remaining instalments of purchase money being more than sufficient to cover any sum to which the purchaser could bo entitled in respect of damages. Moore v. Merritt, 6 Grant, 550. 48 — Injunction. By the terms of a mortgage to secure a sum of money by instalments, with interest, in the mean time quarterly, it was stipulated in case of default of payment of the interest within ten days after any of the days or times when the same was made payable in any year, that the whole of the principal money should become payable immediately, and the mortgagor covenanted to pay the same accordingly. Held that this was in the nature of a penalty only, and that the Court would restrain an action brought upon such :ovenant to enforce payment of the whole sum, after default in payment of one of the payments of in- terest, and the mortgagee by arrangement between the mortgagor himself and the party to whom he had assigned, having drawn upon the mortgagor for the amount of a quarter's interest, but in consequence of some delay which was not accounted for, the draft was not pr;>sented until after the ten days, when it was accepted ; but owing to some mis- take the bill was not paid at maturity, and the holders of the mortgage insisted upon such non-payment as a default, entitling them to f& 360 EQUITY DIGEST. f ■ lii" -I payment of the whole mortgage moDey, and took preceedings at liv to enforce it. Held, also, that this relieved the mortgagor from the necessity of tendering the next quarter's interest when it became dae and that the mortgagee or his assigns could not insist upon that default in answer to a motion to restrain the proceedings at law, Knapp V. Cameron, 6 Qrant 559. 47 — Separate estate — Sale. The rule that a mortgagee of several estates may refuse to be re- deemed in respect of one unless redeemed in both, does not apply to a oase where a sale is asked by a prior incumbrancer. Merritt p. Stephenson, 6 Grant, 567. But see this case on re-heariog, Vol. 7, p. 22. 60 — Assignee's sale. Where a suit is brought to enforce the sale of mortgaged property against the mortgagor and his assignee, the order for payment of any balance of the mortgage debt which may remain due after such sale, must be against the mortgagor and not the assignee. Turnbull v. Symmonds, 6 Grant, 615. 51 — Unpatented lands. A mortgagee of lands not patented, purchased them at sheriff's sale, under execution against the mortgagor, to whom the lands had been conveyed at the instance of the execution creditors, in order to en- able diem to take the lands in execution during the absence of the mortgagor from the county, and the mortgagee then claimed to hold the lands absolutely. Held, per curiam, [^Spragge, V. C, dissent- ing.] that the estate was still redeemable. Aitchesonv. Coombs, i Grant, 643. 62 — Sheriff's sale — Notice. The equitable owner of unpatented lands, for which he held a deed, created a mortgage of his interest therein, and put the mortgagee in possession, whereon he and his partner carried on business for some time, and subsequently the mortgagee became the purchaser at the sheriff's sale under an execution against the mortgagor ; upon the winding up of the partnership affairs it was ascertained that the mortgagee was indebted to his partner in a large sum, in payment of which the partner accepted a conveyance from the mortgagee of the mortgage estate, and a bill was filed to redeem, charging him with do* tice of the nature of the title : and in the course of examination he stated :— "i had heard from J. B., {the mortgagee,) that there toas a -T- r^ EQUITY DIGEST. 361 bond, but I thought in my own mind that the sheriff^a deed had killed a good deal of that." Held, per cur., (Spragge, V. C, dissenting,) that ha was affected with notice of the mortgagor's title, and there- fore liable to bo redeemed, lb, l^Z— Floating balance. A trader being indebted to a wholesale merchant for goods lupplied, executed a mortgage in favour of the creditor, securing £3000, and the creditor having entered into a new partnership, the firm continued to make further advances for several years, during which time the debtor made several payments, much more than would have been sufficient to pay o% his original indebtedness, and the firm in rendering their accounts to the mortgagor did not bring in the old debt, upon appeal from the master's report, it was held that theso eiroumstances were sufficient to shew that the security was intend- ed to cover ti floating balance. Russell r. Duvey, 7 Qrant, 13. 54_On separate estate — Sale. In a suit for the sale of mortgage property, it appeared that a mesne iocumbrancer held a mortgage on other property of the mortgagor ; the Court ordered an account to be taken of what was due, on both the securities, and in default of payment, a sale ; but intimated that in the event of a sale taking place, the premises would be conveyed to the purchaser relieved of any lien of such subsequent mortgagee. Merrill v. Stephenson^ 7 Grant, 22; f>Q—F(yi'eclosure — Parties — Judgment (yreditors. In suits to foreclose the equity of redemption in mortgage proper- ty, the judgment creditors of the mortgagee aro necessary parties. Sanderson v. Ince, 7 Grant, 383. 5Q— Accord and satisfaction. A mortgage was made for £1196, payable £200 in four months £200 in eight months, and £224 in twelve months ; the residue at later periods. The third instalment was paid. For the first and seoQud instalment the mortgagor gave two promissory notes, bearing even date with the mortgage, and took the following receipt from the mortgagee. " Received from B B W, his notes for £200 at four monthSi and £200 at eight months from the first of June last, in full for the same amounts due on a mortgage made by him to me, matur- ing at same date," and the following endorsement was made on the mortgage. " Received from B B W, two notes of hand, endorsed by L for £200 each, to complete the two first payments on the within mort- 2x ¥1 l*-l #'5 II- 362 fiQtJitY blGHST. gage." The notes were not paid at maturity, and in a suit by the assignee of the mortgagee to foreclose in default of payment of the fint and second instalments. Held, that the right to recover upon the mortgage was only suspended, and not discharged by the taking of the notes. Gibb v. Warren, 7 Grant, 496. 5^7— Usury— Statute 16 Vict, ck 80. A mortgagor paid the mortgagee from time to time money in pur. auance of an agreement, contemporaneous with the mortgage, that five per cent per annum in addition to the legal rate of interest should be paid on the amount loaned. In taking the account in a suit brought by the mortgagee to foreclose, the master gave credit for the money thus paid, as so much money paid on account of principal and legal interest. Held, on appeal from the master, that he was right in his mode of taking the account, and held also, that the second sec- tion of the statute IG Victoria, chapter 80, did not bar the right to recover in an action of assumpsit, for money paid in excess of legal interest. Stimson r. Kerby, 7 Grant, 510, 58 — Purchase by second from a prior mortgagee under a power of sale. A purchaser by a second from a prior mortgagee under a power of sale, contained in the first mortgage deed, was sought to be set aside, but the Court upheld the transaction, and the purchaser submittbg to be redeemed in respect of both mortgages, directed the cause to stand over for the purpose of making the mortgagor a party to the suit Walkins «. McKeller, 7 Grant, 584. 59 — Payment to mortgagee after assignment. The holder of a mortgage security assigned the same for value, on the ninth day of October, (Saturday,) on the eleventh of the same month the mortgagor, without notice of the transfer which had been made, effected an arrangement with the mortgagee, one of the assign- ees of the mortgage being present, and concealing the fact of the assign- ment from the* mortgagor. The mortgagor thereupon filed a bill claiming to have the mortgage discharged, alleging fraud in the trans- action of the assignment. The Court, under the circumstances, or- dered the mortgage to be released, but refuser] the plaintiff his costs, in consequence of his failure to prove the fraud charged. Engerson V. Smith, 9 Grant, 16. vr^ EQUITY DIGEST. 363 tnstances, or- 60 — Registered judgment — Sale under fi. fa. issued ther&on — Certificate of registration, form of — Costs. The owner of lands created two mortgages thereon, after whioli his interest therein was sold under a writ oi fieri facias, issued upon a judgment registered prior to both mortgaged, for the sum of 20 shiilingSf all parties beiui; under the impression that the lands were sold subject to the two mortgages ; subsequently the purchaser at sheriff's sale bought up the first mortgage, whereupon tho holders of the second mortgage filed a bill against him, praying a decree of re- dcmption or foreclosure, on tho ground that the purchase of tho equity of redemption at sheriff's sale bound him to discharge both mortga- ges. The Court, at the hearing, refused this relief, and dismissed the bill ; but owing to tho uncertain state of the authorities on the point as to tho effect to be given to the registering of a judgment, without costs, and with leave to file a new bill impugning the sale under the f. fa. ; or a decree of redemption be pronornced upon the submission to that effect contained in the answer, if the plaintiffs de- sired that relief. Bank of Montreal v. Thompson, 9 Grant, 51 . Ql—Foreclosure — Evidence. A party foreclosing, subject to a prior mortgage, cannot call the common mortgagor, if he has the equity of redemption, to give evi- dence as to the amount due upon the prior mortgage. Warren v. Taylor. Ross v. Taylor, 9 Grant, 59. 62 — Judgment Creditor. A second mortgagee, as such, cannot impeach a prior registered mortgage as fraudulent and void against creditors, but a judgment creditor having accepted a mortgage does not lose his rights rs a judgment creditor, lb. QZ— Affidavit proving debt. Where the usual affidavit proving a mortgage debt is made, the onus of reducing the amount lies upon the opposite party. lb. 64) — Re-registering judgment. A judgment creditor omitted to re-register within three years, held, that he thereby lost his lien as to persons purchasing or becoming incumbrancers after {hat timo, and before a re- registration was effect- ed, lb. Q5— Annual rests. In toking tho account in the master's office it is improper to charge amortgt^oo in possession with annual rests on rents received by him, until he is paid off in full. CoUwell r. Hall, 9 Grant, 110. i4 i 'fi 364 EQUITY DIGEST. 66 — Occupation rents. The statute of limitations forms no bar to a claim against a mort- gagee in possession for occupation rent. lb. 67 — Bents not actiuiUy received. The principle upon which a mortgagee is liable to hp ' ,., J with rents not actually received, considered. lb. 68 — Assignee takes subject to equities. The rule in equity is that the assignee of a mortgage takes itgt ject, not only to the state of the accounts bewteen the mortgagor and mortgagee, but also to the same equities as affect it in the hands of the mortgagee. McPhcrson v. Ihiigan, 9 Grant, 258 69 — Right to cloiver at law and in equity — Instank'.ii': ■ ^ ' seisin — Merger of charge. L purchased from S, who conveyed to him, and immediately took back a mortgage to secure the purchase money, in which L's wife did not join. L afterwards conveyed his equity of redemption to H, who subsequently conveyed to S, and S then sold it to another party. L having d'^^ his widow sued at law for dower. A bill filed praying an injunction to stay the action, and for a declaration that the widow was under the circumstances not entitled to dower, was dismissed with costs. On re-hearing, the decree was varied by declarint; that the mortgage was not extinguished as a charge on the purchase of the equity of redemption by S from H, or merged in his legal estate, but the Court restrained the defendant from proceeding at law for the recovery of her dower, and declared that the dower so to be allotted» should be charged with the payment of one third of the interest of the mortgage money, unless the defendant chose to ]^ off one third of the mortgage debt ; and per curiam, the right to dower being favoured by both common law and equity, will assist a dowercss by removing out of her way a satisfied mortgage, and will allow her to redeem an unsatisfied mortgage. Per Esien, V. C, that the question of merger is one of intention, In the absence of evidence of intention, the Court will consider the course selected by the purchaser that which was most for his benefit, and that in this case the mortgage became merged in S's estate, that plaintiff had no equity to restrain the action for dower, and that the bill should be dismissed ; and per Spragge, V. t'., that L had in him before his conveying to H the beneficial legal estate, being en- titled to the value of the land beyond the mortgage debt, aod any ^-.^iiiiji :i EQUITY DIGEST. 365 ;aiDst a mott- with i takes it si mortgagor and the hands of >ta)itan'?oui lediately took liL's wife did )n to H, who er party. L filed praying lat the widow as dismissed eclarinc; that irchase of the al estate, but ; law for tho 9 be allotted) ic interest of off ono third dower being doweress by allow her to of intention, consider the r his benefit, i estate, that and that the it L had in e, being en- ebt, and any other incidental advantage ; that in the interval betwesn the exeoa- tion and conveyance and mortgage, L was a trustee for S, but not a bare trustee. Henrv v. Low, 9 Grant, 265. 70 — County Court — Costs. The act giving to County Courts equitable jurisdiction in relation to mortgages when the sum does not exceed fifty pounds, does not apply when the defendant is resident out of the jurisdiction. Lawrason v. Filzgerald, 9 Grant, 371. 71 — Trustee and cestui que trust C H being the owner of the equity of redemption in three distinct tenaments, sold and conveyed one of them to J T K by'a deed in fee, with absolute covenants for quiet enjoyment, freedom from incum- brancers, &c,, taking from the purchaser a bond by which he cove- nanted to pay £241 of the money owing on the outstanding mortgage ; the purchaser afterwards went to the holders of the mortgage, con- cealed from them the existence of !»is bond, produced the deed to himself, and agreed with the holders of the mortgage for the release of hib portion of the property, and the release 'vas accordingly for a valuable consideration executed by them. J T K having become in- solvent, absconded from the province, and a suit to foreclose having been instituted against C H, he sought to charge the plaintiff, the mortgagees, with the amount payable ^y J T K under his bond ; but the Court, acting on the rule established in Ford v. Chandler, (8 Grant, 85,) considered the plaintiff warranted in treating the absolute covenants executed by the defendant (C H) as an undertaking by him to pay off the \7h0le sum remaining due upon the mortgage, and therefore charged the portions still vested in him therewith. (Esten, V. C, dissenting.) Bank of Montreal v. Hopkins, 9 Grant, 495. 72 — Mortgage hy absolute conveyance — Statute of limita- tions — Dormant equities — 11^^ clause of chancery act — Redeeming. On the 16th of January, 1831, an absolute conveyance was made in fee to secure a loan of money, the alleged mortgagor remaining in possession until the spring of 1841. On the 1st of March, 1841, the aU^d mortgagee wrote to a subsequent mortgagee on the same pro- perty claiming £94 12s 8d as due fum the mortgagor, and on the 7th and 21st of June, of the same year, he again wrote to the same incumbrancer, alleging that ho had originally advanced about £60, which with interest amounted to £90 or £100, and suggesting that the land should be hold for the benefit of the mortgagor, and he kept hi I? ;-! ft' ■•' 366 EQUITY DIGEST. an account in his books against the alleged mortgagor of principal and interest in respect of the alleged debt up to the first of Januan 1856. The subsequent incumbrancer purchased the mortgagee's equity of redemption. Upon a bill filed by such mesne incumbrancer in Feb- ruary 1861, claiming a right to redeem the premises against the repre- sentatives of the alleged mortgagee, who had died in the meantime, tlie Court held, that the letters written by the mortgagee were sufficient to take the case out of the statute of frauds, and that the right of the plaintiff was not barred by the provisions of the statute of limita- tions ; that the act relating to dormant equities did not apply to the facts of this case, and that 11th clause of the chancery act did not affect the plaintiff's right to redeem. Mullock v. Pinhey, 9 Grant 550. 73 — Assignment hy executor. The executor of a mortgagee has not, under the provisions of the statute in that behalf (c. 87, Con. Stat. U. C, s. 5) any power to sell and convey the legal estate held by his testator to a person purchas- ing the mortgage. Robinson v. Byers, 9 Grant, 572. 74 — Evidence — Costs. In a suit by a prior against a mesne incumbrancer, on the argu- ment of the cause, by consent^ an affidavit was read which stated an agreement on the part of the prior incumbrancer to be postponed to the latter, when the Court gave liberty to the plaintiff to cross ex- amine the deponent upon statements contained in his affidavits, which permission not being acted upon by the plaintiff, his bill was dis- missed with costs. Millar v. Start, 10 Grant, 23. 75 — Champerty — Maintenance — Assignment of right to im- peach a prior mortgage. Where an assignment was executed by a puisne incumbrancer to another, for the purpose of filing a bill to impeach a prior mortgage on the ground of fraud, and which bill was accordingly filed ; the Court without determining what might have been the result of a suit brought simply to redeem, or one instituted by the puisne incum- brancer himself, dismissed the bill with costs, notwithstanding the right to redeem formed one alternative of the prayer, it being evi- dent from the proceeding that the alleged fraud was the ground upon which the plaintiff principally relied. Mirchall v. Banks, 10 Grant, 25< EQUITY DIG1'3T. 367 of principal it of Januaij jagee'a equity rancerinFeih nst the repre- ueantime,tlie ere sufficient the right of uteoflimita. apply to tile ■ act did not hey, 9 Grant, isions of the r power to sell son purciias- on the argu- ich stated an i)e postponed F to cross ez- lavits, wliioii bill was dig- nghttoim- mbrancer to or mortgage y filed ; tlie lult of a suit isne incam- sanding the t being evi* round upon , 10 Grant, *IQ— Payment of mortgagor without notice of assignment. A mortgage was held by an assignee for the benefit of the assign- or (the mortgagee,) and the mortgagor without notice of such assign- ment paid to the mortgagee the amount due on the mortgage, and obtained from him a discharge under the statute. Upon a bill filed by the representative of the assignee, who claimed the assignment to hare been absolute, seeking to enforce payment of the mortgage by sale or foreclosure, the Court declared the mortgagor had acted hona Me in paying off and obtaining a discharge of the security from the mortgagee, and ordered the plaintiffs to execute a release of the mort- gage, it being doubtful whether under the circumstances the dis- charge from the mortgagee would have the effect of re-vesting the property in the mortgagor. McDonough v. McDougherty, 10 Grant, 42. 'J'J— Assignment of equity of rederaption — Agreement by mortgagee to extend time for payment. On the purchase of an estate, subject to a mortgage, the purchaser agreed to pay off the security, and subsequently agreed with the mort- gagee for an extension of time for five years, within which to pay off the incumbrance, agreeing in consideration thereof to pay an increased rate of interest, and covenanted that he would ''well and truly pa y or cause to he paid unto the said W. M., {the mortgagee,) his execu- tors, administrators or assigns, the said interest upon the said sum of £900, quarterly as aforesaid, so long as the said forbearance shall cotUinue, and until the said principal money is fully paid and satisfied.** On a bill filed to enforce payment of the incumbrance, held, that the assignee was personally bound to pay only the interest on the debt, and by reason of the extension of time to the assignee who had be- come the party primarily bound to pay, the personal liability of the mortgagor therefor had been discharged. Mathers v. Helliwell, 10 Grant, 172. 78 — Covenant to pay — Sale — Order for deficiency on — Stat- ute of frauds. M, being owner of the equity of redemption, verbally assented to an arrangement "in consideration of the said Mclnnes having prom- ised to give his personal covenant fur the payment of the said balance of £300, [due on the mortgage,] in three years from the tenth of February, last, with interest, to be paid half-yearly, as collateral se* onrity I will procure him an extension of time, as aforesaid, on receiving said covenant from him," which was embodiiid in amemor- J ( V 1*1 i.'l^ f '^ 1' ' ff^^'aH 1 ' 1 , I' n ■'-'^' M S * ,! .^ r tii i'' 1 ■ 1 '^1 {1 ^ ;; ■'^- ■ ■ * J, at; -. 'j^ 3 ,, * i If i'-J -^ ; V !»3.-J-l 1 »? i ^ < , 1 It 1J 1 ' Ks ^''^ Sr a r:^» ft^ !|. 368 EQUITY DIGEST. andum signed by the solicitor of the mortgagee, but without liii authority. Proceedings were accordingly delayed on the mortgage for three years, on the faith of this promise, and the mortgagee sub- sequently instituted proceedings in this Court, to obtain a sale of tbe premises, and that M might be ordered to pay any deficiency arising on such sale of the premises. Held, that there was not any absolute binding agreement to give the time ; that as part of the agreement [that as to giving the covenant,] was to be performed within a year, but the mortgagee's part embraced a period of three years, [as did also M's in regard to the time for payment,] whether the statute of frauds would stand in the way of the plaintiff's recovery. Quart, That had M performed his part of agreement, the mortgagee could have been compelled to execute his, and that a personal order for payment of the deficiency is only made by the Court to avoid circu- ity of action, and in aid of a legal right, but only when that right it clear. Christie v. Dowker, 10 Grant, 199. 79 — Agent — Practice — Costs. The owner of an equity of redemption filed a bill impeaching the mortgagee's title, on the ground that no money was advanced, but the Court being of the opinion that the evidence was sufficient to es- tablish the fact of payment, directed, at the option of the defendants, that the bill should be dismissed with costs, or the usual decree made for the redemption on payment of what should be found due on a reference to the master. Bedson v. Smith, 10 Qrant, 292. 80 — Re-borrowing — Parol agreement that original onoi't- gage after having been paid off should stand ere secu- rity — Appeal from masters office. Two years afler a mortgage had been in part paid off, the mort- gagor applied to the mortgagee to re-borrow the money, agroeiug ver- bally, to return the receipts for the money paid, so that there should not remain any evidence of payment, and that the amount so re-bor- rowed should be considered of the origiaal charge created by the mortgage ; some but not all of the receipts were returned to the mort- gagee, and the money re-advanced by him upon the terms proposed by the mortgagor, under this state of facts the master in taking the accounts directed by the decree, allowed the mortgagee the full amount of the mortgage. On an appeal from the master's report, held, that the principle upon which he had taken the account was correct, and that the mortgagor was estopped from proving the payment of any portion of the original sum advanced, (Vankoughnet, C, dissenting) Inglii V. Gilchrist, 10 Grant, .301. X^ 'yf'm EQUITY DIGEST. 369 81 — Application ofinsuranca 'money paid to mortgagee. Where a mortgage deed contains no provision as to the applica- tion or appropriation of insurance money coming to the hands oftlie mortgagee before the time appointed for payment of the money se- cured by the mortgage, he is not bound to apply it la reduction of the sum secured, or the interest accruing thereon, until the expira- tion of the time allowed for payment of the mortgage money ; in such a case the mortgagor would be entitled to have the money expended in rebuilding the premises, and replacing all parties as near as may be in the situation in which they stood before the fire occurred. Austin V. Storey, 10 Grant, 306. S2— Tacking. R mortgaged lot 16 to E, to secure £2047, 11 afterwards mortgaged lot 17 to C to secure £100, R's equity of redomptioii in lot 17 was attached by fi.fu. lands in 1851, but before solo of it E purchased and received an assignment of C's mortgai^o, after this the sheriff sold R's equity of redemption in lot 17 to L. On a bill filed by the rep- resentatives of E to foreclose both mortgages. Held, that they were entitled to tack and be redeemed, if at all, as to both mortgages. Uyman v. Roots, 10 Grant, 340. 83 — Covenant to release by mortgagee — Right of assignee of mortgagor. A mortgage contained a covenant that the mortgagee would release any portion of the mortgaged land, which the mortgagor might sell during the continuation of the mortgage, upon payment of £200 for every acre to be released. An assignee of the mortgagor made a general payment upon the mortgage, and afterwards upon selling a portion of the land, demanded a release therefor from an assignee of the mortgagee under the covenant contained in the original mort- gage. Held, that the benefit of this covenant would pass to an as- signee of the e*|uity of redemption, but the mortgagor or his assignee coald not daim a release from the mortgagee, unless the latter receiv- ed the stipulated amount per acre, upon the sale of the particular portion ot the land required to be released ; no general payment by a mortgagor on the mortgage would be sufficient. Webber v. Oneilt 10 Grant, 440. 84 — Assignment — Indemnity — Set off. Upon a sale o'f land, subject to a mortgage, the vendor covenanted to indemnify, and save harmless from inoumbranoes, and the purchas- er ezeouted a mortgage over the premises bought to secure part of 2i¥ I' n W li Ta ill 370 EQUITY DIGEST. the purchase money. The purchaser afterwards learned, that before his purchase, these and other premises had heen mortgaged to another person to secure a sum larger than what he then owed. The vendor had since assigned the purchaser's mortgage to the defendant G. The prior mortgagee having taken proceedings under his mortgage, unl being about to sell the premises covered by the second mortgage, the purchaser filed his bill against the assignee of the vendor and the vendor, claiming a right to apply the amount due by him in discharge of the first mortgage, and for an injunction to restrain any action to recover the sum due from hiui until the premises bought by him should be released from the first mortgage. It did not appear clear- ly that C, the assignee, was a purchaser of the mortgage for value rather that be held it as collateral security for a debt due, and the vendor had become insolvent ; under these circumstances an interim injunction was granted upon payment of the amount due into Court. Heap V. Crawford, 10 Grant, 442. 85 — Proof of clahn in masters ojffice. To shew the balance due on a mortgage, the party proving the claim in addition to swearing to the balance, produced certain books in the master's office, and made affidavit that by these books the balance claimed on the mortgage could be discovered. Neither party asked him any question in reference to them, nor was he asl{e4 to explaio them, and the master stated that on looking at the books, he could not from them understand the account. Held, on appeal from the ruling of the master, that the oath of the claimant standing unim peached though not supported by the partial statement furnished by him, but which he offered to make complete if required, from the books, the master should have acted on it, and allowed the claim. Hancock V. Maulson, 10 Qrant, 483. 86 — Deed absolute in form — Trustee ami eei^fui que trust In 1836, R, being under obligations to S, as accommodation en- dorser, and being about to leave Canada, conveyed land to S by a deed absolute in form. A bond was executed contemporaneously, explaining the transaction and providing for re-conveyuncc of the premises on satisfaction to S of any damages or lo.ss that might be occasioned to him by reason of his liability as such endorser. A ten- ant occupied the premises till 1845, treat in( if m M 'f 372 EQUITY DIGEST. 91 — Duty and liability of mortgagee as trustee for mort- gagor. A mortgagee of lan(^, part of which was taken by a Railway Com- pany, waa offered £IOO as compensation for the land so taken, which he had refused, and the matter having been referred to arbitration, £30 only was awarded. On a bill filed to redeem, he/d, that under the circumstances he was chargeable with the sum awarded, and do more. Gurin r. McDonald^ 11 Grunl, 140.' ^2— Coats. A, the equitable owner of property had it conveyed to his son, a minor, in trust for A himself. A al'tci wards signed the son's name to a mortgage of the property to a creditor, and added his own name as witness. Held, that the instrument, though void at law, created a valid charge in equity. Dennistoun v. Fjife, 1 1 Grant, 372. 93 — Fo7'm of decree. V executed a mortgage on certain property to A, then sold part of the property to II, then mortgaged the residue with other property to P, who obtained an assignment from A of his mortgage, and filed a bill of foreclosure against V and H. The proper form of the decree in such case stated. Perkins v, Vanderllp, II Grant, 488. 94 — Mortgage on wro)ig lot. Where a mortgage was through error created upon a wrong lot of land, the mortgagor owning only the land intended to be embraced in it, and having no title to that actually conveyed, and he subse- quently sold the land to which he bad title, The Court upon a bill filed for that purpose, ordered him to account for the proceeds of the sale, not exceeding the amount secured by the mortgage, with interest and costs of the suit. Lnndij v. McKamis, U Grant, 578. See also Merger. 95 — Oldening foreclosure. A foreclosure was opened eighteen months after the final order, where the mortgagor was illiterate and had no solicitor in the cause, and misunderstood the object of the bill, which was the only paper served on him, the mortgage bearing twelve per cent, interest, the property appearing to bo three times the value of the incumbrance, and the whole or greater part of the property being still in possession of the mortgagor. Plait v. Ashhridge. 12 Grant, 105. 96 — Practice — Amending decree. It is no defence to a bill of foreclosure, that the mortfvage was given to secure the purchase money of the mortgaged property, and that to part of it the vendor (now the mortgagee) had no title. EQUITY DIGEST. 373 Where od a bill prajing foreclosure onlj, a decree for sale was drawn ap with a direction that the mortgagor should pay auy defi- ciency, the Court at the instance of the mortgagor, four years after- wards, amended the decree by striking out this direction, but order- ed the mortgagor to pay the costs of the proceedings which had taken place under the decree. Cockenonr v. Bu/locI:, 12 Grant, 138. ^J..-Lieu. , Where a mortgagee assigned the mortgage covenanting for the pay- ment of the mortgage money, and subject to an agreement between the mortgagee and assignee, that the former might have a re-assigu- ment of the mortgage on payment of principal and interest due there- • OD, and the mortgagee afterwards made payments under his covenant Held, that he was entitled to a lien therefor as against the mort- gagor. Flcnmg V. Palmer, 12 Grant, 226. ffS— Absolute deed. A mortgagee took a release of tlie equity of redemption, and there- upon an agreement was signed by both parties for the purchase of the property by the grantor for u sum exceeding the amount due on the mortgages, not giving the grantor a mere option to purchase, but binding him to buy and pay the stipulatoi price, Held, that the transaction was o ne of mortgage. Hawke v, MilUken 12 Grant, 236. Q9— Pleading. The rule is that a bill can only be filed against a mortgagee for the purpose of redeeming his mortgage. But this rule does not neces- sarily exclude the right of obtaining in the same suit against other parties, relief consequent on such redemption. When a mortgagor had assigned the mortgage property, and taken collateral security from the assignee for payment of part of the mortgage money, a bill by such assignee against the mortgagee and mortgagor was held not to be improper ; but where such a bill did not offer to pay what was due to the mortgagee or pray redemption, and prayed relief against the mortgagor only in respect of the collateral security, a demurrer was allowed. Rogers v. Lewis, 12 Grant, 257. 100 — Of iinixitented lands. A mortgagee of unpatented land, after certain judgments were reg- istered against him, assigned all his estate for the benefit of his cred- itors. The trustee paid to the government, out of the trust estate, the balance of the purchase money. Held, that in respect of the .;,+. ;.a:> IMAGE EVALUATION TEST TARGET (MT-3) .<>4t^ ^ Si 1.0 iifKi Ui itt Ui i2.2 1.1 I lift |2jO 6" ^■:>^'***' %^' .% /; FhotogFaphic Sdmoes CarpdHtkni 4^ iC V <^ 23 VmT MAM STRUT WIIITM,N.V. 14510 (7U)t7a-4503 ^^^ ^ A 374 EQUITY DIGEST. ill '» I'f: :< sum 80 paid, he was entitled to priority over the judgment creditors, Mclntyre v. Shaw, 12 Grant, 295. 101 — Power of sale. It is the settled rule of equity, that a mortgagee in exercieing a power of sale must take reasonable means of preventing a sacrifice of the property, hence, where a mortgagee took no means whatever for that purpose, and sold the property for half its cash value, the price received being near the amount due to himself, the sale was set aside. Latch V. Furlong, 12 Grant, 303. IQ^—Taching. Where the owner of property mortgaged it to W, and then assign- ed an undivided half to J, subject to the mortgage, and at a later date executed a mortgage on his remaining undivided half to B, who afterwards obtained an assignment of the first mortgage. Held, that the representatives of J were not bound to redeem both mortgages, but only the mortgage to W. Buckler v. Bouiman, 12 Grant, 457. 103 — Sale of equity of redemption. Held, reversing the decree of the Court below, that the provision in the statute 12 Vic, c. 73, s. 1, (Con. Stat, of U. C, c. 22, s 377) which authorises the sale under execution of an equity of redemption, applies only where the execution is against the mortgagor himself, and on an execution issued against his lands. (Esten, V. C, dis- senting.) Bank of Upper Canada v. Brough, 2 E. & A. R., 95. 104 — Mortgage created hy an absolute deed — Joint tenant — Tenant in common — Parol evidence. The principle upon which parol evidence will bo received to cut down a deed, absolute on its face, to a mere security considered and acted on, LeTarge v. DeTuyle, 1 Grant, 277, commented on and approved of. T and B being sureties for W for the due payment of certain moneys to the city of Toronto, obtained from him a mortgage with a power of sale by way of indemnity. Afterwards, having been obliged to pay certain money to the city, and being also liable to pay other sums on his account, they obtained from him an absolute deed for the nominal consideration of £1.000 ; in fact no money was paid, nor did any accounting between the parties take place. Subsequently the holder of the prior mortgage instituted proceedings to foreclose, and on an application to extend the time for payment, T made affidavit thai the application was made as well on behalf of the mortgagor as EQUITY DIGEST. 375 on behalf of himself and B, and it was also shewn that when the deed was signed T stated that W would retain his right to redeem, the object of the conveyance being merely to enable T and B to raise money to pay ofif the mortgagee, who was pressing, and other de- mands. On a bill filed by W against B and the representatives of T, (who had died in the meantime) alleging the transaction to have been by way of security only, and praying to be allowed to redeem. A decree was uiade as prayed, which, on appeal to this Court, was affirmed, notwithstanding the surviving grantee in the deed (B) swore that the conveyance had been made by W for the purpose of absolutely releasing his interest in the lands conveyed. [Draper, G, J., dissenting.] Whether the admission of one joint tenant, or tenant in common, as to the extent of the interest held by him and his co-tenants is ad- missable against his co-tenants, Queere. Bernard v. Walker, 2 E. &A.R., 121. 105 — Sflle ivith right to re-purchase 11th clause of CJian- cery act. In November, 1834, the owner of land conveyed the same in fee for ^he consideration of £159 12s 6d, with the proviso that if the grantor, during his natural life, or his heirs, &c., in one year after his decease, should pay that sum and interest to the grantee, his heirs, executors, &o., the conveyance and everything therein contained should be null and void. In August, 1835, the grantor died without having ever having paid any portion of the principal or interest, and hia representatives had never paid any portion therof. Sometime be- tween 1841 and 1845 the grantee ofiercd the heir at law of the gran- tor to re-convey on payment of the principal and interest then due [£225] but which offer he declined to accept, stating that the land was not worth that sum, and subsequently went to reside in the Unit- ed States where he died, having some time previously to his death conveyed all his interest in the land to W M, who died in 1849 with- out ever having registered his conveyance or made any claim to the property, or seeking to redeem it. In 1856 the heir of W M, a minor, filed a bill to redeem against the grantee and his vendee of the estate, and which the vendee had been in possession of since the time of his purchase, and cleared seventy acres and made other im- provements to the value of £600 or £700. On appeal, this Court, reversing the decree of the Court below, refused the relief asked and dismissed the plaintiff's bill with costs. Stanton v. McKinlay^ 1 E. & A. R„ 265. ;v 376 EQUITY DIGEST. 106 — Absent defendant — Final order for sale. When the plaintiffs and some of the defendants were residents in Great Britain, the chancellor declined to make a final order for sale without an affidavit from the plaintiffs, and suggested that service of the application for final order be served oi the plaintiffs. McKechniet. McKechnie, 1 Cham. Rep., 42. 107 — Power of sale — Injunction: Pending an appeal from this Court, an injunction was granted re- straining a mortgagee from proceeding to a sale of the mortgage premi- ses under a power of sale contained in the deed. The Commercial Bank V. The Bank of Upper Canada, 1 Cham, Rep., 64. 108 — Enlarging time for 'payment ofonortgage money. In opposing a motion to enlarge the time for payment of mortgage money found due by the master's report, the mortgagee swore that in consequence of non-payment by the mortgagor he had been obliged to raise money to meet liabilities of his own at a rate much beyond the rate payable under the mortgage. On granting the extention the mortgagor was required to pay such a sum in addition to the rate reserved by the mortgage as would cover the interest payable by the mortgagee. Howard v. Macara, 1 Cham. Rep., 27. A judge in chambers, though not as a matter of right, extended the time for the payment of mortgage money where the money was for the purchase money, and the vendor had made a prior mortj^Uj.: on the property which he had not paid off according to his covenant for title, and it appeared that the existence of the first mortgage pre- vented the plaintiff from raising money to pay off the second. G. Mort- gagee V. V. Mortgagor, 2 Cham. Rep., 33. Where through the default of the defendant in payment of mort- gage, the plaintiff has had to raise money on security of the land, and very considerable delay has taken place before the application was made and a final order for foreclosure had issued, the secretary refus- ed to set aside such order and extend the time for payment. Wad- dell V. McColl, 2 Cham. Rep., 58. Where the plaintiff can be replaced in the same position he occn- pied USfore the default, and recompensed for any damage he ma; have suffered, and where there appears a prospect of the amount of the mortgage money being paid within the period asked for, the Court will not refuse to open the foreclosure. S. C. on appeal before the chanoellor. EQUITY DIGEST. 377 Semble. That on appeals from the secretary's decision, the Court will re-hear the whole case, and in its discretion admit further evi. dence, and. not confine the parties to the case first made. lb. NoTE< Since this case the chancellor has expressed hb view that the practice should be otherwise, and that appeals from the secretary should, like other appeals, bo confined to the case originally made. The Bank of Montreal v. Wilson, 2 Cham. Rep., 117. The time for payment of mortgage money was extended where it was shewn that the defendant was hampered and hindered in selling or raising money on the lands in consequence of an advertisement signed and circulated by the plain tiflF's solicitors. Under the above circumstances the motion was granted without costs to the plaintiff. Gilmour v. Myers, 2 Cham. Rep., 179. 109 — Form, of moHage given under direction of the Court — Practice as to settlemunt thereof In a suit by a vendor for specific perfornjance, where the vendor is ordered to execute a deed and the vendee to execute a mortgage, $mbk, that it would be improper to insert a power of sale in such mortgage, and, quare, if the deed merely contains qualified covenants whether the mortgage should contain any others. Where a mortgage has been settled by a master and the party ordered to execute it ob- jects to it^ form, it is not a proper mode of raising such objection to refuse to execute such mortgage, and to execute a mortgage differing from the one settled. McKay v. Reed, 1 Cham. Rep., 208. 110 — Deed or mortgage — Breaxh of covenant. Certain trustees conveyed to A, and took back from him a deed to ertct buildings on the property to the value of £2,000, or in default that he would execute a re-conveyance. Held, to be a mortgage for £2,000, and that subsequent purchasers and incumbrancers were entitled to redeem. O'Reily v. Wilkes, 8 U. C. L. J., 135. Ill — Practice — Mortgagee filing hills on each mortgage — Coats. The Court will not compel a mortgagee who holds several mortgages from the same party, on the same land, to proceed only on one bill filed for the foreclosure of one of the mortgages, as the decree for re- dtimption and re-conyeyanoe is at the mortgagee's risk ; but his fil- ing more than one bill may influence the discretion of the Court as to costs. Noble v. Line, 5 U. C. L. J., 163. 112 — Costs — Redemption. A mortgagee is always entitled to his costs, and therefore when a suV lequent mortgagee who has filed a bill to foreclose offers to comrolidate 2z m I' jr 378 EQUITY DIGEST. his suit in that of the prior mortgagee who has filed a bill, after him he will be allowed his prior costs in such suit. Allan v. McDougaU, 6 U. C. L. J., 64. 113 — Dormant equities act, 18 Vic, ch. 124. Held, first that the dormant equities act, 18 Vic, ch. 124, ^lon. Stat., U. C. p. 58, ch. 12, s. 59 and 60) does not apply to cases of an express trust. Second, that clearly it does not extend to cases of mortgage ; these cases being amply provided for by the Chancery Act. (^Wragg V. Jarvis, in appeal, 7 Grant, 220,) commented upon Caldwell v. Hall and Maxwell 6 U. C. L. J., 141. 1 1 4 — A ssignment — Set off — Injunction. Upon the sale of land which was subject to a mortgage, the ven- dor gave a bond to indemnify the purchaser against the incumbrance, and thereupon the transaction was completed ; the purchaser giving a mortgage for £500, and paying residue of purchase money in casb. The mortgage given by the purchaser was transferred to a third party for value, but with notice of the existence of the prior incumbrancer, who subsequently took proceedings at law against the purchaser to recover the amount of his mortgage, who thereupon filed a bill in this Court claiming a righ .o apply the amount due by him in dis- charge of the prior mortgage, which was then due and unpaid. A motion for an injunction to restrain the action at law was refused. Tully V. Bradburry, 8 U. C. L. J., 73. 115 — Judgment creditor — Registration and re-registration of judgment — Foreclosure. A party foreclosing subject to a prior mortG;age, cannot cull the common mortgagor, if he has the equity of redemption, to give evi- dence as to the amount due upon the prior mortgage. A second mortgagee, as such, cannot impeach a prior registered mortgage as fraudulent and void against creditors, but a judgment creditor having accepted a uiortL-age, does not lose his rights as a judgment creditor. Where the usual affidavit proving a mortgage debt is made, the onus of reducing the amount lies upon the opposite party. A judg- ment creditor omitted to re-register within three years. He/d, that he thereby lost his lien as to persons purchasing or becoming incum- brancers after that time, and before a re-registration was effected. Warren v. Taylor. Ross v. Taylor, 8 U. C, L. J„ 243. U^: .^' EQUITY DIGEST. 379 116 — Application of insurance. As between mortgagor and mortgagee, who buildings on mort- gaged premises covered by insurance are destroyed by fire, and the insarance money is paid to the mortgas^ee with the consent of the mortgagor, (there being no provision in the mortgage as to its appli- cation) before tho principal money becomes due, (and in this case after some interest had accrued due,) the mortgagee is not bound to apply this money on the mortgage, as of the time he receives it, but may expend it on the property, or may hold it in lieu of so much of the security as it covers, being however in the latter case bound to apply it eventually on the money found due on the mortgage, Atts- fin V. Slorif, 10 U. C. L. J., 194. 117 — Acts relating to — Special provision respecting mort- gages. Whereas the !<*w of England was at an early period introduced in. to Upper Canada, and continued to bo the rule of decision in all mat- ters of controversy, relative to property and civil rights, which at the same time from the want of an equitable jurisdiction, until the 4th day of March, 1837, it was not in the power of mortgagees to fore- olope, and mortgagors out of possession were uaable to avail them- selves of their equity of redemption, and in consequence of the want of these remedies the rights of the respective parties, or of their heirs, executors, administrators or assigns, may be attended with peculiar equitable considerations, as well in regard to compensation for im- provements, as in respect to the right to redeem, depending on the circumstances of each case, and a striot application of the rules es- tablished in England might be attended with injustice. The Court shall have authority in every case of mortgage, where before the said fourth day of March, 1837, tho estate had become absolute in law by failure in performing the condition, to make such decree in respect to foreclosure or redemption, and with regard to compensation for im- provements, and generally with respect to the rights and claims of the mortgagor and mortgagee, and thoir respective heirs, executors, administrators or assigns as may appear to the Court just and reas. enable under all the circumstances of the case, subject however to appeal by either party. 7 W. 4, c. 2, s. 11. 118 — By absolute deed — Laches — Redemption — Issue. Id Oct., 1840, the holder of a bond for the conveyance to him of real estate assigned over the same to a creditor in payment of his de- mand, the creditor paying at the same time a sum in cash, and two ?.«-i fe . ■ • mi- 380 EQUITT DIGEST. (T I f I i :■ years afterwards such creditors obtained possession of the property h an action of ejectment brought against the debtor who had in the iDter> im been in receipt of the rents. In December 1855, the debtor filed hii bill stating the transaction to have been by way of mortgage only, and praying to be allowed to redeem. Issues were subsequently directed as to the question of mortgage or no mortgage, and found in favont of the plaintiff, after which on further directions a decree for redemp. tion was pronounced in favour of the debtor, which on appeal was reversed, and the bill in the Court below ordered to be dismissed with costs ; and semble that such a quebtion is properly one of law, not of fact and not such as forms an issue to be tried by jury. Watson r. Monro, 8 Grant, 60. IIQ— Trustee— Costa. A mortgage was created by a trustee with the view of being sold to raise money for the purpose of being distributed amongst the cred- itors of the owner of the property, who had created the trust ; the mortgagee failed in effecting a sale of the security, and a suit having been subsequently instituted by the representatives of the mortgagee who had died, to foreclose the mortgage, the Court refused the relief sought, and ordered the mortgage to be delivered up to be cancelled and the trustee having also filed a bill against the mortgagee's rep- resentatives seeking relief on these grounds, was ordered to receiTe his costs of that suit, although the bill was not filed until after pro- ceedings had been taken in the su t to foreclose the mougage. Worthington v. Elliott, 8 Grant, 234. 120 — Equity of redemption — Rival claimants. A mortgagee having filed a bill to foreclose against two rival claim- ants of the equity of redemption, the Court directed the usual re- demption by, and conveyance to, the person prima facie entitled to the equity of redemption, with a right to the other claimant, at any time before the day appointed for payment to shew himself to be en- titled. Rumsey v. Thompson, 8 Grant, 372. 121 — Surrender of bond to re-convey — Right to redeem. Where there was a conveyance of land upon an advance of money, a bond vras given by the pretended purchaser, with a condition at the end of a year upon payment of the sum advanced, and an additional sum calculated upon the value of the money for that time, the trans* action was held a mortgage, notwithstanding the instrument expressed it as a sale and purchase ; but the bargainor at the expiration of the year surrendered the bond to re-convey to the assumed purchaser, 'I. '■ EQUITY DIGEST. 381 and took from him a lease of the premises. Held, that this operated as a release of the equity of redemption, and a bill to redeem wag dismissed with costs, but without prejudice to another bill being filed, beeaose it appeared, though not relied on by the present bill, that the bargainor was at the time in difficulties, that the assumed purchaser was supplying him with money, and paying money for him to the sheriff; that their relative positions were such to give the assumed norobaser great influence over the bargainor ; that the inadequacy of of price was gross, and that the pretended purchaser's coaduot was exacting and oppressive, and if it had been shewn that the assumed purchaser held other security for the advance, as if the amount of it was included in a chattel mortgage which he held against the bar- gainor, his right to redeem would have been clear. Fink v. Patter, m, 8 Grant, 417. 122— Power of sale — Rights of mortgagee. A mortgagee, when acting under a power of sale contained in his security, is not at liberty to proceed, without any reference to the in* terests of the mortgagor. The mortgagee in such circumstances is in fact a trustee for the mortgagor, subject to his own claim upon the mortgage estate. Where therefore the assignee of a mortgage with power to sell or lease the mortgage premises, in default of payment, gave notice to the mortgagor and the mortgagee of his intention to sell in consequence of default of payment of the amount remaining due upon the security, but did not give any public notice of the intend- ed sale, either through the newspapers or by posting bills, notwith- standing which, and the protest of the mortgagee, who had covenant- ed to make good any deficiency in ease of a sale being enforced, the holder of the security proceeded with the sale, and sold for a sum little morethanhalf of the balance remaining due to a person cognisant of the facts, and then instituted proceedings against the mortgagee to enforce payment of the deficiency. Upon a bill filed by the mortga- gee praying a declaration that he was discharged by reason of the conduct of the holder of the security, and for an injunction to re- strain proceedings at law or, in the alternative, to set aside the sale ; the Court set aside the sale, but refused the plaintiff his costs, he having made several charges of fraud and collusion against the de- fendants which the evidence shewed were wholly unfounded. Rich- tiumd V. Evans, 8 Grant, 508. A'^fr . 382 EQUITY DIGEST. i i " V''' '? ■, 123 — Covenant to insure — Lien on insurance money-^ Parties. A mortgage deed contained a covenant on the part of the mort- gagor to insure the houses then, or thereafter to be built on the mortgaged premises, and an insurance thereon was effected aooord- ingly. The houses having been destroyed by fire, the mort^i^r attended with the mortgagee at the office of the insurance companv and signed an order which was drawn up by the secretary and agent of the company to pay the amount of the insurance to the mortgagee upon a verbal understanding and agreement on his part to expend the money on rebuilding the houses. The mortgagee having after- wards withdrawn from his agreement to rebuild, the mortgagor attended before the board of directors and obtained from them the usual promissory note of the company, at three months, for the amount of the policy, which he transferred to a third party, for value, but who was aware of the claim of the mortgagee. The mortgagee thereupon filed a bill against the mortgagor and the in- surance company, claiming payment of the insurance money to the amount due on his mortgage. The Court under the circumstancei made a decree for payment, and ordered the company to pay plaintiff the costs of the suit, but dismissed the bill as against the mortgagor with costs, he being an unnecessary party. Held, also, that the person to whom the note of the company was transferred was not a necessary party. Watt r. The Gore Mutual Insurance Co., 8 Grant, 523. 124 — Usury. QucBre. Whether the amount of interest reserved by a mortgage, may not be so great as to evidence such a case of oppression as would induce this Court to refuse to interfere in behalf of the mortgagee, leaving him to his remedies at law, notwithstanding the repeal of the usury laws. Goodhue v. Widifield, 8 Grant, 531. 125 — Account. Where a reference is directed to take au account of what is dae on a mortgage, it is competent to the parties to shew the real ob- jbot for which it was made, if that is not apparent on the face of the instrument, and when the bill has been taken pro confesso, it is in- oumbent on the master to require the mortgagee to shew how the money secured by the mortgage was advanced, and semhie that such a course would be desirable in all cases. Sterling v. Riley , 9 Grant^ 343. t J EQUITY DIGEST. 383 Je Tmney.^ I \%Q— Altering face of. Before the face of a mortgage is altered by reducing the amount leonred, there must be clear evidence by which to act. Fraser v. Loc'f, 10 Grant, 207. 127— Payingr off Tnortgage. A mortgagee is not obliged to accept payment of the whole prin- (npal and interest of a mortgage on which only certain interest is due, and a bill to foreclose which has been filed. Green v. Adams, 2 Cham. Kep., 134. 129 — Lien on deeds deposited. Where mortgages are deposited as security for advances, and the mortgagor subsequently acquires the equity of redemption, the de- positee's lien on the property is not confined to the amount of the mortgages. Jones v. The Bank of Upper Canada, 13 Grant, 74. IZO— Infant heirs of mortgagor. Where the heirs of the mortgagor aro infants, and a foreclosure rait is instituted, the rule of the Court is to grant a reference, as of coarse, to inquire whether a foreclosure or a sale is more for the bene- fit of the infants ; but if affidavits are filed to satisfy the Court as to the proper decree, or if the guardian consents, the reference may be dispensed with. Dudley v. Bercty, 13 Grant, 141. 131 — Compromise — Discharge of mortgage. Where a tenant in posssession being mortgagee of the property and indebted to the mortgagor under an award in a sum exceeding the amount due under the mortgage, a settlement and compromise between the parties was affected, whereby the mortgagor agreed to discharge the amount due under the award and also pay the mortgagee $100 to p out of possession. Although not distinctly shewn either by parol or writing, yet the facts and circumstances were such as to induce the belief that the arrangement embraced a discharge of the mortgage debt, and the Court dismissed a bill of foreclosure filed by the mort- gagee several years afterwards. Fair v. Tate, 13 Grant, 160. 132 — Application of payments. Where a mortgage was to secure advances to be thereafter made from time to time and interest thereon, and there were mutual ac- counts between the parties, the items of which were entered in the mortgagee's books, with the concurrence of the mortgagor, who wa^ his clerk. HeU, that tho credits given therein to the mortgagor f ^ ' !; -■ A. i V J' m 'ii ill 384 EQUITY DIGEST. were first applicable to the interest on all these advances and then to the eldest of the principal sums charged. Eoss v. Perrault, I3 Grant, 206. 133 — ItefereTice as to oivnerahip of equity of redemption. Where there is a dispute as to the ownership of the equity of re- demption, the decree in a foreclosure suit should usually contain a di- rection to the master to inquire as to the ownership before a day ig appointed for payment of the mortgage money. Cayley v. Hodgion, 13 Grant, 433. 134 — Costa at law. A mortgage was vested in trustees. One of them brought an action at law on the mortgage as plaintiff's attorney. A bill was afterwardi filed by another solicitor to foreclose the mortgage. Held, that the plaintifis were not entitled to the costs at law in addition to those in equity. Ontario v. Winnaker, 13 Grant, 443. 125— Set off In a suit for foreclosure, upon a mortgage given by the purchaaer for part of the purchase money, damage or loss sustained by failure of title, or of incumbrancers, or charges on the property sold, cannot, under the covenants for title, form the subject of a set off to the amount secured by the mortgage before the amount is ascertained by action or otherwise. Hamilton v. Banting, 13 Grant, 484. 136 — Release. A mortgagor conveyed part of the mortgaged property to a pnr- ohaser, the mortgagor covenanting against incumbrances, and the mortgagee subsequently released the part so sold from his mortgage. Held, that as the release was in accordance with the mortgagor's own obligation as to that part, it did not affect the mortgagee's right to recover the mortgage debt, or his lien on the rest of the mortgaged property. Crawford v. Armour, 13 Grant, 576. 137 — Balance of mortgage money. Where a mortgagee and mortgagor sell and convey part of the mortgaged property, without the concurrence of a person to whom subsequently to the mortgage the mortgagor had sold the remainder of the property and whose interest was known to the mortgagee, and the mortgagee covenanted for freedom from incumbrancers. Held, that the mortgagee having thereby put it out of his power to re-convey the whole of the mortgaged property, he could not call on the owner of the remaining portion for payment of the balance of the mortgage money." Gowland v. Garhutt, 13 Grant, 578« W'^^TT EQUITY DIGEST. 385 This rule does not apply where the sale is un ler a power contain, ed in the mortgage or where the mortgage is of chattels which a mort- gagee has a right to sell without any express power, lb. Bat it applies to a sale under a decree in a suit to which the owner of the unsold portion was no party, lb. Where the mortgagee's light ti/ claim a lien on ihe unsold portion has thus been put an end to, it is not revived by his, two years after- wards, obtaining the consent of the first purchaser to a re-conveyance on payment of the mortgage money, lb, Sco on the same subject Crawford v. Armour, 13 ''-ant, 570, and Guthrie v. Shields, referred to at p. 585 of samo volume, 138 — Security for indorsements. A decree was made for the foreclosure of a mctgage givtii for £100 with interest. It appeared by the defendant's evidence in the ' master's office that no money was advanced by the mortgagees, and the Court held, chiefly on the conduct of the parties and the circum- stances of the case, that the mortgage was intended as a security for a note of the mortgagors indorsed by the mortgagees contemporane- oosly with the execution of the mortgage, and for any subsequent transactions with the mortgagor growing out of it. Brownlee r. Oun mgkam, 13 Grant, 586. W— Equitable mortgagee. An equitable mortgagee is, after default by the mortgagor, entitled to a receiver where the mortgagor is in possession, whether the security is scanty or not, and he need not make a prior mortgagee, who has the l^al estate, a party to the suit. Aikins v. lilain, 13 Grant, 646. See Alien — AssiaNMBNi — Bankrupt-Final ORDEa— Float- ing Balance — Foreclosure — Incorporated Company — In. JUNCTION — Judgment Creditor — Notice—Parol Evidence — Practice — Principal and Surety — Roistration op Deeds —Trusts— 'Vendors and Purchasers. MORTGAGED PREMISES. See Insuring. MORTMAIN ACTS. A testator, by his will, directed all his estate, real and personal, to be sold, and out of tbe proceeds gave $1000 each to " The Rochester Theological Baptist Institution', and to *' The American Baptist Mis^ lionary Union Sooiety,"and after the payment of these and certain 386 EQUITY DIGEST. ■«!■ ?« !r other legacies directed " all the remainder and residue of his estate to be distributed, at the discretion of his executors, to the support of Christianity throughout the world, such as bible, tract, missionary societies and institutions of learning of the Baptist deLomination," Held, void under the statutes of mortmain so far as the same affected the realty. Anderson v. Kilhorn, 13 Grant, 219. See Mortgage — Municipal Corporation. MULTIFARIOUSNP]SS. See Demurrer — Pleading. MUNICIPAL COUNCIL. Sums were credited by the treasurer of a county in the corporation books to certain townships in respect of the non-resident land fund, Portions thereof were paid over to the townships, and other sums were, in the same books, charged against one of the townships, which the township considered itself not chargable with. The treasurer's books containing these entries were audited and approved by the County Council, but no by-law had been passed by the County Coun- cil, appropriating the fund. Held, that the townships had no relief in equity, Tht Corporalimi of the United Counties of Mara and Rama v. The Corporation of the Comity ff Ontario, 13 Giant, 347. MUNICIPAL COUNCIfiLORS. 1 A suit for the purpose of setting aside an election of directors of a corporation, on the alleged ground of fraud, may be brought by some the shareholders on behalf of all, and need not be in the name of the corporation itself. Davidson v. Grange, 4 Grant, 377. 2 To a bill filed by the municipal council of an incorporated town to prevent an injury to the property of the municipality, the At- torney General is not a necessary party. Giic/j>h r. The C'aiuida Co., 4 Grant, 632. 3 The decree pronounced by the Court of Chaticery, iu the City of Toronto v. Bowes, as reported in Grant, IV, 480, afiirmed on ap- peal. (The Chief Justice and McLean, J., dissenting.) Botoes v. Toronto, 6 Grant, 1 . Afterwards affirmed on appeal to the privy council. 4 A member of a municipal corporation, agreed with another party to take a contract from the corporation for the execution of certain works in his name, the profits whereof were to be divided b^ EQUITY DIGEST. 387 tween the parties, Held, that such a contract was in contravention of the municipal act (16 Victoria, ch. 181,) and the Court refused to enforce the agreement for a partnership ; but the defendant hav- ing denied the existence of a partnership, which was established by the evidence, the bill was dismissed with c osts. Collins v. Swindle, 6 Grant, 282. ' -u MUNICIPALITY. Injunction afjainst. Where parties complaining of illegality of a by-law of a municipal corporation, permit a term of the Court of common law to pass with- out moving therein to quasV it, this Court will refuse to interfere by injunction to restrain the municipality from proceeding to enforce the provisions of their by-law. Carroll v. Perth, J Grant, 64. Jurisdiction as to road, Stat. 12, Vic, 84. A municipality has the right of prohibiting the proceeding with any road within the limits of their jurisdiction, and the making or improving; of which by a road company, formed under the 12 Vic, eh. 84 was commenced before any opposition was made thereto, but without the permission of such municipality. Notice of such oppo* Bition, if duly given before the work is commenced according to the second section of that statute, has the effect of an interim injunction to restrain the commencing of the rond. But though such notice is not given in time for that purpose, the power of prohibition conferred upon the municipal council is not forfeited. Ihe Attorney General V. The Bytown and Nepeon Road Companv, 2 Grant, 626. Trust estate. Land was conveyed to the Town Council of Goderich, for the pur- pose of a market place, and the council considering that the quantity of land was greater than required for that purpose, agreed to 8;raut a portion of it to the municipal council of the counties of Huron and Bruce, for the site of a Court House. Upon an information filed to restrain the proceedings of the council; held, that a corporate body acting as a trustee, is as amenable to the jurisdiction of equity as an individual, that » ay alienation of the land was a breach of trust, and the land should be re-conveyed, and if no conveyance had been actually executed, its execution should be restrained. Attorney Gene- ral V, Goderich, 5 Grant, 402. ■ m I 3^ f n ?■'' S' f li'i 1^ I I!;"- if if- ' m I 388 EQUITY DIGEST. Mortmain acts. After the passing of the 27 Vic, ch. 17, a municipal oorporation invested on mortgage part of the surplus clergy reserve moneys in their hands, and the mortgagors made default iu payment, where- upon the municipality filed a bill to foreclose the security. He/d, that the municipality was entitled to a decree of foreclosure, and was not restricted to a sale of the [iroperty only^^ notwithstand- ing the statutes of mortmain. The Munieipality of Or ford r. iSaifey, 12 Grant, 276, MUNICIPAL LOAN FUND. Advances under consolidated 'municipal loan fund ad — Discharge of railway stock holders by act of parlia. ment — Consequent claim for equitable relief. Where a township municipality advanced a large sum of money to a railway company, under the provisions of the consolidated muni- cipal loan fund act, and some of the stockholders of the company were afterwards released from their liability by an act of the legis- lature passed nearly eighteen months after the works on the road were stopped for want of funds, and new companies were formed un- der that, andjsubsequent acts of the legislature, which released the new corporations from the construction of the original line of road, until a new line had been constructed, and it appeared that there was no immediate prospect of such a result. Held, reversing the judgment of the Court below, that the municipality was not released from their liability to the crown. [Y. C. Spragge, dissentiente.] Norwich t. The AUomey General, 2 E. & A. R,, 541. MUTUAL INSURANCE COMPANIES. By the 67th section of chapter 52 of the consolidated statutes of Upper Canada, all the right or estate of any party effecting an in- surance with a mutual insurance company in the property insured at the time of effecting the same, is subjected to all claims against the as- sured under such insurance, and a purchaser taking a conveyance from the assured will take subject to the charge of the company, al- though without notice, and that although such charge does not ap- p3ar on the registry affecting the property, the registry laws not providing for the registration of such charge. Montgomery v. TAe Gore Mutual Insurance Company ^ 10 Grant, 601. EQUITY DIGEST. 389 ■1, %■ NAVIGABLE RIVER. Where relief would be given at the suit of an individual in re- spect of an injury to a private water course, an information will lie at the instance of the Attorney General for an injury to a navigable stream. What is a navigable river considered and defined. The crown, in making sale of a lot of land situate upon a navigable stream, stipulated that the purchaser should erect on the property a saw mill as well as a grist mill. Held, that this did not warrant the purchaser in creating a nuisance in the river by throwing into the stream the sawdust and refuse of his saw mill, the effect of which was to create obstructions in the river to such an extent as to injure the free use of the river by vessels navigating the same. The Attorney General v. Harrison, 12 Grant, 46b. See Injunction. Nli EXEAT. 1— Fraud. M, having by fraud, induced H to advance money on mortgage upon the assurance that the title was correct, although well aware that the party executing the mortgage had no title, a writ of ne ex- eat was issued against him. A motion to discharge the writ on the ground that the bill alleged that the debt arose out of the fraudulent conduct of the defendant, was refused, with costs. Hunter v. Mount, joy, 6 Grant, 433. Semhle, that the bail of a defendant who has been arrested on a writ of ne ereat cannot be discharged from their bonds upon the de* fendant rendering himself to the custody of the sheriff. McDonald V. McDonald, 1 Cham. Rep., 22. 3— Alimony — Plaintiff out of j-uriadiction — Domicile. The writ of ne exeat, granted after filing a bill in alimony suit, re- mains in force after decree ; but it is no objection that the wife re- sides out of the jurisdiction, as doing coverture, the domicile of the husband is the domicile of the wife. McDonald v, McDonald. U. C. L. J., Vol. V, p. 66. Sm Altmony— Arrest— Attachment (Apphndix)— Bail- Writ OF Arrest. 390 EQUITY DIGEST. NEGLECT. See Principal and Agent. NEGLIGENCE, OR MISCONDUCT OF ADiMINISTRATOR. See Administration— Administration Order— Solioiiob's Bill. NEW TRIAL. Of issues directed. W, being interested in lands under an agreement to purchase, made an assignment, of his interest, absolute in form, and fifteen yean after the execution of the instrument, filed a bill, setting up thattbe transfer by him had been executed by way of security only. On the cause coming on to bo heard, the Court entertaining doubts as to the facts, directed the trial of an issue to ascertain whether or not the assignment in question had been originally intended to operate asan absolute transfer of the plaintiff's right, or by way of security only ; The jury found that the assignment had been intended to operate u a mortgage. The cause was brought on to be reheard on the merits, and also by way of motion for a new trial. The Court, although strong- ly in favor of the plaintiff, upon the evidence and verdict of the juiy together, directed a new trial of the issue ; tho learned Judge befon whom the trial had taken place, having certified that that he was not satisfied with the finding of the jury. Watson v. Munro, 6 Grant, 385. S. C, on appeal, 8 Grant, 60. ; ! NEXT FRIEND. 1 — Of married woman plaintiff — Solvency of. Where one of several co-plaintiffs is a married woman, she mnit sue by next friend, who must be a solvent person capable of answer- ing costs. Rann v. Lawless.! Cham. Rep., 833' 2 — Security for costs. The next friend of a married woman, who is co-plaintiff with her husband, will be required to give security for costs if it appears that he is a person of no known taieans and his residence not known, al* though it appears that the husband bus a substantial interest, and is not a mere formal party to the suit. Van Winkle v. Chaplin, 2 Cham. Rep., 98. EQUITY DIGEST. 301 ^ot«. This decision follows the authority of Hann v. Lawless, which has not been acquiesed in by the profession as sound law, the principle would seem to be that if the husband is a mere formal plaintiff, security will be required ; if a substantial plaintiff, otherwise. 3— STo married women. Where a married, woman files a bill without a next friend, the proper order to make, in the first instance, is that a next friend be appointed, and that all proceedings in the suit be stayed in the meantime. McPhersouv. McCabe, 1 Cham. Rep., 250. 4. A motion to change a next friend must be on notice. East- man V. Eastman, 2 Cham. Bep., 183. Six Sxouritt of Costs. NEXT OF KIN. Parties — Heirs — Service of copy decree. Where the usual decree is obtained by one of an intestate's next of kin for the administration of his personal estate, the master is not to make the other next of kin parties in his office, but is to see that all have been served with an office copy of the decree, under the 6th General Order of June, 1853, before he reports, and generally speak- iog, before he proceeds with the reference. In such a case the Court may dispense with service of the decree on any of the next of kin who are out of the Province, and the application for this purpose may be made ex ■parte. So when the decree is for the administration of rea\ estate, all the heirs must be served with an office copy of the decree, but are not to be made parties, or served with the proceed- ings in the master's office ; though any of them may, by notice, re- quire to be served if they desire it. The rule is the same when some of the next of kin or heirs are in- fants. English V. English, 12 Grant, 441. See Administration Suit— Parties —Security for Costs. NOTE. Cancellation of. SiK Prisoner. , .k"/.y'*if-'-'t.'ir. 'f ,!. Si 392 EQUITY DIGEST. NOTICE. Reglitered UUe, 1, Mortgage, 3. Costs, 2. Of answer having been filed, 8. Of reading master's certificate, 4. Of filing pleadings, 6. To party required to give evidence, 6. Of motion to commit, 7. (2) Practice as to, 12. Registered title, 8. Countermand, 0. Want of notice of illegality, 10. Of motion for " such other order ,"&a,ii Of reading affidavit, 7. (1) 1 — Registered title. , Such circumstances as are sufficient notice to put upon inquiiy, will not prevail over a registered title, although it might be sufficient in other oases. Sodon v, Stevens, 1 Grant, 346. Quare. Whether constructive notice of any kind is sufficient for this purpose. lb. The possession of an estate by the fir i, but unregistered purchaser from a registered owner, i» not of itself notice to a subsequent par- chaser of the title of such first purchaser. Waters v. Shade, 2 Qrant, 457. Constructive notice is insufficient in any case to postpone a ro- istered conveyance executed bona fide. Ferrass v. McDonald, 5 Grant, 310. A lessee of the Canada Company with a right of purchase, assign- ed his claim to the plaintiff, and afterwards in fraud of the plaintiff obtained in his own name an absolute conveyance from the company and conveyed the land to the defendant, a bona fide purchaser, with- out notice, who paid part of the purchase money and rttgiscered the deed to himself. The plaintiff omitted io :>'';< :i or '.he assignment to him. Held, that defendant was entitlec' i': . >■■/ ue land freed from any claim of the plaintiff, lb, 2 — Mortgage — Costs. A bill was filed impeaching sales to purchasers on the ground of notice of the prior incumbrance a mortgage for unpaid purchase money, and praying to have the conveyance to the purchaser post- poned to such incumbrance, or in the alternative that the money still due might bo paid to the plaintiff. On the hearing it was made to appear that the purchases were made bona fide and without notice, and that one of the purchasers had paid nearly all his purchase money at the time of sale, and given his promissory notes for the balance, and that the other had given a mortgage to secure his unpaid pur- chase money, and both submitted at the hearing to pay such amounts as were still unpaid to the plaintiffs, or as the Court might direct ; the Court under the circumstances granted the alternative relief prayed EQUITY DIGEST. 393 directing the money due by the one purchaser on his mortg^^e to be paid to the plaintiffs, and the amount due on the notes of the other to be also paid to them on production of the notes to be given up to the maker, but ordered the plaintiffs to pay to the defendants the purchasers their costs of the suit, and refused to the plaintiffs any costs as against the vendor, he never having opposed the relief to which they were entitled Feriimonv. Kthi/, 10 Grant, 102. 3 — Of ctnswer having heenjilcd. When a motion is made to dismiss the bill for want of prosecution, the party moving must shew that notice of having put in an answer, has been duly served. Kan v. Sanson, 1 Cham. Rep., 71. /ii— Of reading masters certificate. It is not necessary to state in a notice of motion, that a certificate of an officer of the Court will be read in support of the application, Sttch certificate can be read though no such notice be given. [See addenda,] ^— Of filing pleadings. Notwithstanding the order [of 153] XEX requiring notice to be served of filing any pleading, a party cannot move to take such plead- ings off the files where no notice of filing has been served. McDou- gall V. Dell, 9 v. a. L.J. ,133. 6 — To party required to give evidence. Where a party to a suit having no solicitor is required to attend before a master to be examined, it would seem that forty-eight hours' notice thereof should be given him. Walson v. Ham, 1 Cham. Rep., 293. ^— Of reading affidavits. (1) In giving notice of motion and that the party moving will read certain affidavits if the same are filed at any time before the date of the notice of motion, the notice must state the day of the filing there- of, otherwise the affidavits cannot be used on the motion, iuumL^. Fraser, 13 Grant, 183. Of motion to cormnit, 'producing. (2) The notice of motion to take an affidavit on production off the files and to commit for contempt should be served on the defen- dant's solicitor, and not on the defendant personally. Motions for orders to commit for Don-production are properly mkde in Ohambers. 3b 394 EQUITY DIGEST. A party parting with papers after service on him of an order to produce was ordered to produce them, to file a better affidavit and pay costs. Rossv Robertson, 2 Cham. Rep., GG. Of motiou to commit. Four days' notice must be given of a motion to commit, This was a motion to commit the defendant, Sally Hatch, for con- tempt, in not having produced books and papers in compliance with the terms of the usual order, under order 31 of Gth February, 1865, doing away with orders 7mi. Tiie defendant had been served with notice of motioUj returnable two days after service. Mowat, V. C, following a recent decision by the Chancellor on the same point, held that it Wiis necessary that four days' notice should be given, and refused the application, but without costs, as the former decision had not been reported and the practice not well established. Gray o. Hatch., 2 Cham. Rep., 12. 8 — Prayer for general relief — Registered title. In a redemption suit, upon its appearing that K, a purchaser for value, with constructive but without actual notice, held a registered title of the lands in question, as well as S, to whom he had sold; the bill was dismissed, as against K, with costs, and the plaintiff praying specifically for a re-conveyance of the mortgaged premises, held, that he was not entitled to personal relief under the prayer for general relief. Graham v. Chalmers, 9 Grant, 239. 9 — Counternmnd of notice of motion — tWs. A party upon whom notice of motion has been served is not pre- cluded from appearing on the return day and claiming his costs of an abandoned motion, notwithstanding notice of countermand served : unless the party serving notice of countermand offers at the time of service to pay any costs the other may have incurred in preparing to answer the motion. Rossv. Robertson, 2 U. C. L. J., n, s. 331. 10 — Want of notice of illetfality. Courts of equity cannot, any more than Courts of law, on the foot- ing of want of notice of the illegality, give effect to proceedings which on principles of the common law and under Acts of Parliament, are utterly void. Gardiner v. Juson, 2 E. & A. R., 188. 11 — Of motion for — "Such other order, <£v." When in a notice of motion an order is applied for in the alterna- tives in the following words : — " for such other order as shall seem EQUITY DIGEST. 395 ;id meet," the Court will not make an order specially distinct from that aeked for. Graham v. Chalmers, 2 U. 0. L. J,, n. s., 269. H—Pradke, as to. Sec Taylor's orders, when it may be given, 128 ; when void, 128, 13G; leave for short, 128, 135 ; two days' notice of, 128, 129 ; style of cause, necessary, 128 ; costs of, 128 ; aflSdavits must be filed, 129, 131 ; and mentioned in notice, 129; rules as to reading, 129, 131 ; affidavits in reply, 129 ; when to bo filed, 129 ; oral evidence on, 129 ; when pe- tition should be filed instead of, 130; fiat on copies of, 130 ; when amendment allowed, 130 ; for order pro. con., 72 ; against married woman, 73; administration order, 82 — sec administration order; of motions for decree, see Decree, 80, 87 ; of filing pleadings, 89 ; of cross-examination on affidavits, 94 ; of motion to dismiss, 99 ; of motion in chambers, 115; service of, may be dispensed with, 115 ; of Burcliarge, 1 17, 140 ; of objections to sale, 119 ; of appeal from mas- ter's report, 210 ; of examination, 220 ; of hearing, 213, 218 ; in ap- peal, 250; of re-hearing, 21H ; to set aside for irregularity, 218 ; and Bee index of forms. Notice "A", when to be served, 197 ; form of, 317 ; notice "B", when to be served, 198; form of, 318. See Assignment— -Attorney and Client — Consteuctive Notice— CoNTEACT — Ceown Debt — Deed-Demueree — Final Order — Garnishee Ordee — Geneeal Ordehb — Guardian Ad Litem— Geant from the Crown — Husband and Wife — Lunatics — Mabtee's Office — Moetqage — Pleading— Pro GoNFEsso — Production op Documknts— Principal and Sure< TT— Registration of Deeds — Vendor and Purchaser. NOTICE OF DEFECTIVE TITLE. See Specific Performance. NUISANCE. Every one has a right to the air on his premises uncontaminated by the occupants of other property tliough those who live in the city cannot insist on complete inuuunity from all interference which they might have in the country. But the occupant of city property cannot justify throwing into the air in and around his neighbor's house any impurity which there are known means of guarding against. The defendant erected in Kingston, a planing machine and circular saw, driven by steam, and was in the habit of burning the pine shavings and other refuse, he took no means to ri'\:- 396 EQUITY DIGEST. consume or prevent tho smoke, and it bsing carried to the plaintif g premises in sufficient quantities to be a nuisance, the defendant wu decreed to desist from using his steam engine in such a manner as to occasion damage or annoyance to the plaintiflTfrom thu umokc. Cart- wright V. Graj/, 12 Grant, 399. « See Injunction. NULLITY. See Mortgage. i Mh OBSTRUCTION OF IIIVER. See Injunction. OCCUPATION RENT. See Mortgage. OFFENSIVE TRADE, See Easement, (1)— Injunction. OFFICE COPIES. The order to furnish O. C. pleadings, when demanded, is impera- tive, and the Court will enforce compliance with it. . Where a defendant had answered, and an office copy answer had been demanded, but had not been furnished, the defendant after- wards moved to dismiss the bill. The order was refused with cost«. The plaintiff then moved that the defendant bo ordered to furnish the copy of answer, and the motion was granted with costs. The Chan- cellor. ToUen V. Macintyrc, 2 Cham. Rep., 80. Note. The same rule applies to affidavits. Affidavits. If office copies of affidavits arc demanded, it is imperative on the parties filing the affidavits to furnish them, and the costs of any de- lay occasioned by his not doing so, falls on tho party making such default. Burrojces v. Hainey, 2 Chum. Rep., 186. See Taylor's orders as to practice as follows, of decree, when to be served, 50, 79, 11.5, 164, 173,197; to be demanded, 131, 167; to be delivered within forty-eight hours, 131, 168 ; effijct of demanding, 131, 168 J when office copies of affidavits not taxable, 208 j to be EQUITY DIGEST. 397 '*"(■'■ making sucb prepared by soIicitQrs, 167; how to bo written, 168; decree made by deputy registrnrs, 203 ; forays of indoiscmcnt of, see index of forms, 183, 237, 317, 327. OFFICER OF CCRPORATION. See Trust — Trustee and Cestui Que Trust. ONUS OF PROOF. See Voluntary Conveyance. OPENING BIDDINGS. Delay, 4. tiubstituting purchaBer, 5. Where refuseJ, I, 6. Conditions nf sale, 2. Settling new idvcrtisemciit, .'!. \— Where order refused. One lot of land out of several sold under order of the Court was purchased for £75 ^s., after tlic sale another person came into the office of the plaintiffd' solicitor and oflfcred£100; an application by the plaintiff made under the circumstances to substitute the latter person for the purchaser, refused with costs. The practice as to opening biddings commented upon. McRoberls v. Durie, 1 Cham. Rep., 211. t—Goiulitions of sale. Where the title or the proof of it is involved in no difficulty, a condition of sale that " the vendor is not to bo bound to give any evi- dence of title or any title deeds or copies thereof, other than such as are in his possession, or procure any abstract." was held io be very object- ionable and should not bo sanctioned by masters, even by consent The principle upon which sales under decrees of Court should be con- ducted, considered and commented on. McDonald v. Gordon, 2 Cham. Rep , 125. 3 — Settling new advertisement— Purchaser-Sale by auction. A solicitor having the conduct of the sale, cannot withdraw the property offered after a bid has been made — His course would appear to be to move to open the biddings, if he has grounds for such a motion. Mc Alpine v, Younfj;, 2 Cham. Rep., 85. 4i— Delay. An order to open biddings will not be made after great delay against an innocent purchaser, unless misconduct is shewn on the part of the purchaser. Crooks v. Crooks, 2 Cham. Rep., 29. 398 EQUITY DIGEST. 5 — Substituting purchaser. The Court will in a proper case and upon conditions, substitute i proposed purchaser at an increased price for a party who has par. chased property at a sale under a decree of the Court, instead of opening biddings generally and directing n re sale, giving theprewot purchaser the option to take at the increased price Harri$m t, Patterson, 1 Cham. Rep., 363. (J — Where refused. Biddings will not be opened and a sale set aside on the groandi that a party (the defendant) was prevented from bidding by prom- ises made to him by the purchaser ; buch fact, if established, would constitute the purchaser a trustee for him, and would be subject for a suit. Brock r. Saul, 2 Cham. Kcp., 145. See Decree — Purchaser — Vendor. an enli formv tion? OPENING FORECLOSUE. The Court will not interfere to open foreclosure io aid of a defen- dant who has been ;;>uilty of laches and shews no effort made on hit part to avoid foreclosure or save his estate. Brothers v. Lloyd, 2 Cham. Rep., 119. See Injunction. OPENING PUBLICATION. Foreign commiasion, 4- Alimony, 6, Where refased, 1, 5. Where granted, ?. Extending time to go to exominatiou and hearing, 3. 1 — Where refused. (1) Where on the examination of a witness on the 24th of Janu- ary, a person's name wa& mentioned as having been resident on the lot adjoining the premises in question in the cause, and on the 28th of March, after publication had passed, the cause set down for hearing, and a subpoena to hear judgment served, the defendant moved for leave to open publication and examine as a witness the person whose name had been mentioned, and who he had sworn could give material evidence. The motion was refused with costs. Waters v. Shade, 2 Grant, 218. (2) Q'urre. Whether upon an application by the plaintiff for a stay of i-.vooeedings, to which the Court considered him not entitled, EQUITY DIGEST. 399 an enlargement of publication can be ordered, when an order in that form woald partially accomplish what the plaintiff desired by his no- tion? Howcutt V. Rees, 2 Grant, 437. (3) Quare also. Whether the Court would enlarge publication go as to enable a plaintiff to be present at the viva voce examination of the defendant where such examination had been postponed by an accident of which the defendant or his solicitor was the unintentional cause, till after the plaintiff 's departure from the province on prew ing business, and the plaintiff uworo that it was necessary for his in- terests that he should be present ? lb. 2— Where granted. Whore publication had passed shortly before a motion to open was made by the plaintiff, and it appeared on the motion that the defen- dant had examined witnesses, but the plaintiff had not examined any, and the plaintiff and others swore that his evidence was material and that the delay had arisen from the poverty of the plaintiff, publication was opened on payment of costs. Taylor v. Shof, 3 Grant, 153. 2— Extending undertaking to go down to examination and hearing. An order made on motion to dismiss, giving leave to go to examina- tion, has the effect of opening publication. Weir v. Weir, I Cham. Rep., 194. 4 — Foreign commission. Where it was considered conducive to the ends of justice, p"biica- tion was opened and leave given to examine further witnesses, and to issue a foreign commission on payment of costs, and upon the terms of examining the witnesses in Canada at the next examination term, and the witnesses residing out of Canada at the same term, or by foreign commission in the meantime ; if the latter the commission to be returned and depositions disclosed two weeks before the examina- tion term, it appearing not to be owing to the negligence of the party applying that the evidence had not been taken before. Blain v. Terryberry, 1 Cham. Rep., 104. 5 — Wliere refused. The Court refused to open publication in order to obtain evidence of an alleged conversation between a person mentioned in the plead- ings and one of the defendants Malloch v. Pinkey, 1 Cham. Bep., 105. 400 EQUITY DIGEST. I I I 6 — Alimony. The principle laid down by the Court in Waters v. Shade (H Grant, p, 218) in respect to opening publication, applies as well to suits for alimony as to other cuses. McKaii t>. McKay, 6 Grant, 279, See Alimont. OPPRESSION. See Undue Influence. ORDER EX PARTE. Where an order to do a certain act docs not limit the time thereof an order limiting the time therefor will be granted ex parte. Form of such order. McKay v. Reed, 1 Cham. Rop, 19G. ORDER OF COURSE. Where a bill is filed in an outer office, the order for production and other orders of course are properly obtainable at such office, and Dougall V. Wilburn, 1 Cham. Rep., 155. not from the registrar. ORDER NISI. Endorsement on. A party neglecting to produce accounts before the master when so required, will be ordered to pay the costs occasioned by hk coi- tempt, although no committment has taken place. The notice re- quired by section 6 of general order 46, not necessary in cases of orders nisi for non-production. Berrie v. Moore, 1 Cham. Rep., 107. ORDER OF COUNCIL. See Grown Lands. ORDER PRO CONFESSO. After two months, 1. After six muntliN, 2. Ex pule, 3. Where urdcr (rivhig liberty to answer not uctfd un, 4. 1 — After two months. Id applying for an order pro confesso after two months from the servioe of the bill, the registrar's certificate as to no answer being filed should be as recent as possible. McCann v. Eastwood, 1 Obam. Rep., 233. EQUITY DIGEST. 401 liberty to answer 2-^After six months. In applying for an order prii cnnfesso, after six months from the service of the bill, the affidavit of service ot the notice of motion ehould shew that the notice was served within the jurisdiction. Mc- Clary v. Durand, 1 Cham. Rep., 233. ^—Ex parte — Costs. The six months after service of the bill within which an order pro confesso may be obtained ex parte are six calendar months. Where separate affidavits of service of bill are made by one person, the costs of one Only should be allowed. Eou/lon v. McNuiighlon. 1 Cham. Kep., 216. ^— Order giving defendant liberty to answer not acted on. After a decree in a foreclosure suit referring; it to the master to take an account of what was due, the defcndaiit applied to set aside the order pro confesso, and subsequent proceedings, and permit an answer to be filed, which was ordered to bo duiio upon the defendant paying the costs of the application, and puttir.g in his answer within two weeks, in default the decree already drawn up to remain in force. No action having been taken by the defendant under this order for several weeks, an application on part of the plaintiff was made upon notice to discharge that order with costs. The Chancellor ^.ade the order as asked, although at tirst doubt- ing any necessity therefor, as the order already drawn up declared that under the circumstances which had occurred, the decree should remain in force. Williams v. Atkinson, 1 Cham. Kep., 34. See Pro Conpesso. ORDER TO ELECT. A defendant is not entitled to an order calling upon the plaintiff to elect whether he will proceed in this Court or at law, until after he has answered the bill ; and a demurrer is not such a proceeding as will entitle the defendant to the order. The G. W. R. Co, r. The Desjardhis Canal Co., 1 Cham. Rep., 39 Defendants sued at law, and in this Court for the same matters are entitled on filing their answer to obtain an order against plain- tiff to elect on praecipe, and it is not necessary that all the defendanta shoald a]^ply for such order. The motion to discharge such order should be made in Chamberi, if made in Court it will be refused or referred to Chambers, and the 9g I . , 402 EQUITY DIGEST. costs of the day given to the defendants. The Court in its discretion will allow both suits to proceed only when the proceedings at law art ancillary to those in equity. It is not necessary that such order sliould be obtained by all the defendants, Winter ti llainhurgh, I Cham. Rep., 123. A and B were plaintiffs in an action at law, to recover from the de- fendants therein, an iron manufacturing company, a demand for goods sold, moneys paid and advanced &c. A, having become embarrassedin his circumstances, a.ssigned his estate and effects for the benefit of his creditors, and he and liis trustees subsequently filed a bill in thij Court against the same defendants, praying an account of certain partnership dealings betv/oon A and the defendants, who had been carrying on the same kind of business as the manufacturing companj. From the statements in the pleadings in both suits, it appeared that A had been a partner with the defendants as iron founders, and that A and B were creditors of the defendants, who alno carried on iron works, involving in effect the allegation that there were two concerns, carry- ing on similar business, and that he was a partner in one and not in tho other. Under this state of facts one of the defendants had ob- tained upon praecipe, the connnou order to elect in which Court the plaintiffs would proceed, which upon motion was discharged with costs. IVoodside v. Dickey, 1 Cham. Hep., 170. ORDER TO COMMIT. See Injunction— Production ok' DocuMfiNT.s. ORDNANCE LANDS. The purchase money of ordnance land comprised in the second schedule of the Act 19 Vic, ch. 4r), but sold by the principal officers before the passing of that act is thereby transfe" rod to the Provincial Government. Her Majesty's Secretary of State for the War De- partment V, The Great Western Railway Co , 13 Grant, 503. ORE TENUS. See Demurrer. OUTSTANDING LEASE. SiE Partition. I'l li!\ EQUITY DIGEST. OVERFLOWING LAND. 403 See Injunction. PAROL AGREEMENT. See Evidence— Mortgage. PAROL CONTRACT. Partly performed — Bond for a deed — liegistration — Notice of adverse title — Costs. In 1858 a parol contract was entered into for the sale of one acre of land, the consideration for which was paid, and the purchaser was let into possession of the property, which he occupied, improved and built upon. Afterwards, and in the same year, the vendor executed, by way of security, a life lease to another person, of fifty acres, in- cluding the acre so sold. In 1860 h bond was executed by the ven- dor to the wife of the purchaser for the conveyance of the acre to her. In 1862 the lessee for life purchased the fifty acres in fee, and the conveyance to him was duly registered ; the bond for the conveyance of the acre was never registered. The purchaser of the acre having filed a bill for a specific performance of the parol contract, the Court refused relief on that ground, the parol contract having become merg- ed in the written contract or bond, but offered the plaintiff", at the risk of costs, permission to amend by allej^ing the written contract, and to give further evidence to estublis!i direct notice of the bond, re- serving the question of costs until after the enquiry ; if this refused, the bill to be dismissed without costs, the defendant having falsely asserted his title under the lease to h:ive been absolute and not by way of security only. McCrunn i\ Crawford, Grant, 337. See Contract — Basemrnt (2) — Morto age— Specific Per- formance. PAROL EVIDENCE. The circumstances under which prirol cvidonco should be admitted to give to an absolute deed the oper.stionof a mortgage between the parties, considered and discussed. Mtliliews v. Holmes, in appeal, 6 Grant, 1. To vary ivritten insirtnncnf. Parol evidence to vary the terms of a written instrument was re- jected, although the Court considered it doubtful if the written docu- 1. mm MM Ml 404 EQUITY DIGEST. ment contained all the terms of the agreement between the partiet, Mc Alpine r. How, 9 Grant, 372. An assignment of a bond for the conveyanco of land was made from a debtor to his creditor by a writing absolute in form, but the credi- tor at the time executed a memorandum shewing such assignment to be by way of security only. Subsequently the debtor executed another absolute assignment without receiving back any such mem. orandura from the creditor. The Court, under the circumstances refused to act upon parol evidence, that the assignor was to be interested in the proceeds of the land over and above his indebted' ness to the assignee, lb. Wife's estate. A woman possessed of real estate sold the same, her husband joined in the conveyance thereof and received to his own use the purchaje money, in consideration of which he agreed to settle on his wife cer- tain other property, which he held under lease with the right of pur- chase, and the lease was accordingly assigned to a trustee for the use of the wife, the husband at the same time promising to pay the amount agreed to be paid for the purpose of obtaining the conveyance of the fee. The husband having died and his estate being in the course of adn>inistration in this Court, and his widow having brought i claim into the master's office for the amount necessary to procure the conveyance of the fee. Held, on appeal from the master's report that the master had properly received parol evidence to establish such claim of the widow. Ross v. Mason, Grant, 568. See Evidence — Mortoaoe — Partnership — Specific Per formance — vendor and purchaser. PART PERFORMANCE. See Principal and Agent — Specific Performance. PARTIES. Attorney-Gencral, 8 (2), 22, 84. Bankrupt, 4, 27. Cestui qui truRt, 1, 80, 40. Charities, 22. Corporator, 35. Corporation, 34. Creditors, 8. 6, 14, 24. Encumbrancers, 7- Equity of redemption, purchaser of, 26, 36. Execution debtor, 9. Heir, 6, IS, 20, 26. Infants, 33, 37. Joint debtors, 32 (2). Judgment Creditor, 12. Marriage Settlement, 30. Mortgagor and mortgagee, S8. HuniclpoUty, 18, 8 (2). Objection for want of, 10, 21. Partners, 31. Petition, 24. Personal representation.?, 10, lo,,19,33{.n Pleadings, 28. Practice as to, 20. Ileal representative, 23. Redeeming, 28. Sliareholders, 31 (1). Tenants in common, 39. Time from which certain dcfciulanU m parties, 24. Trust estate, 16. Trustee. 10, 17, 22. Widow, 11. Wife, 8, (1) ■■ ■' a1,- t EQUITY DIGEST. 405 ■Specific Per. \— Cestui qui trust. Until a deed alleged to have been obtained by fraud is declared void it must be deemed a valid and subsisting instrument, therefore, where at the hearing of a foreclosure suit it appeared that after the execution of the conveyance to the mortgagee a voluntary deed had been executed by him purporting to vest all his property in trustees, that he alleged and had gone into evidence to shew this deed void as obtained from him fraudulently, that some of the cestuisqui truslent had relinquished their interest under the deed, and that the others had not any part in obtaining the deed and had not executed it. Held, that such other cestuis qui Irustent must, notwithstauding, be made parties to the suit, nu^x leave was given to the plaintiff to amend for that purpose. Rogers x\ Rogers, 2 Grant, 137. 2 — Personal representative. In proceeding against the heir at law of a purchaser in order to obtain a specific performance or recision of the contract, the personal representative of the deceased is a necessary party to the suit, and without one a suit is defective, though an executor de son tort is a de- fendant, and though no administration had been taken out before the filing of the bill. O'Neil v. McMahon, 2 Grant, 145. ^Creditors. To a bill of foreclosure brought by the trustees to whom a mort- gage had been executed for the benefit of certain creditors of the mortgagor, such c"?ditors are not necessary parties. Fraser v Suth- erland, 2 Grant, 442. i— Bankrupt. To a suit of foreclosure against the assignees of a bankrupt mort- gagor, the bankrupt is not a necessary party. Torrance v. Winterhoi- tom, 2 Grant, 487. 5— Creditors. To a suit brought by or against a trustee of an insolvent's estate in respect of a sum owing by one of the debtors of the insolvent, the creditors for whoso benefit the trust deed was executed are not neces- sary parties. (VConneU v. Charles, 2 Grant, 489. 6 — Heirs. Where a vendee, before obtaining a conveyance, assigned to A half of the land purchased and to B the other half, and the vendor after- wards executed a conveyance to each by which it was intended to 406 EQUITY DIGEST. P^ hi V: iJt-; f) b*f 5 ■V M vf i-. convey to A and B their respective portions of the land, but by a mis- take in the respective descriptions the conveyance to A comprised B's land and did not comprise A's own, nor did the conveyance to B comprise A's land, but each took and kept possession of the land actually intended for him. He/d, (Spragge, V. C, dissentiente) that to a bill afterwards filed by B against A for a conveyance of B's land to him, the heir of the original vendor in whom the legal es- tate in A's land was still vested was a necessary parly. Rowseil V. Hayden, 2 Grant, 557. 7 — Inc umhrancers. In a bill by an incumbrancer for the sale of property, all other in- » cumbranoers, whether prior or subsequent to the plaintiflF, must be made parties in the master's office, and the proceeds of the sale will be applied to pay off all the incumbrancers according to their prior- ities. White V. Beasley, 2 Grant, 660. 8— Wife. (1) To a suit for a foreclosure of a mortgage, in which the wife of the mortgager has joined to bar her dower, the wife is not a necessary party, and if made a defendant the bill as against her will be dismissed with costs. Moffatt v. Thompson, 2 Grant, 111. Municipality — Attorney Gene ra I. (2) To a bill filed by the municipal council of an incorporated town to prevent injury to the property of the municipality, the Attorney General is not a necessary party. GueJph r. The Canada Company, 4 Grant, 632. 9 — Execution debtor. Semble. That the Court would entertain a bill for the purpose of compelling a sheriff to convey property sold under an execution : but to such a bill the execution debtor whoso property has been sold must be made a party. Wilham v. Smith, 5 Grant, 203. 10 — Personal rcjrresentativc. In a suit to enforce a lien for an annuity secured upon real estate, it is not necessary to make the personal representative of the person bound to pay a party, unless an account of the personal estate of the deceased is asked. Paint r. Chapman, 7 Grant, 179, 11 — Widow. Where a suit to enforce by sale, a vcndor'c lien is instituted against the heirs-at-law of the purchaser, the widow of the vendee is a necess- ary party in respect of her right to dower, lb. 4 Equity digest. 407 but by a mis- lomprised B's eyance to B of the land dissentiente) eyance of B's the legal es- ly. Romm all other in- itiflP, must be the sale will their prior- lich the wife ife is not a linet her will in. poratcd town the Attorney ia Company, le purpose of ecution : but en sold must 1 real estate, f the person estate of the uted against e is a necess- ^ 12 — Jiidgnient creditors. In suits to foreclose the equity of redemption in mortgage property the judgment creditors of the mortgagee are necessary parties. San- derson V. Ince^ 7 Grant, 383. 13 — Personal representative. One of several joint contractors having died during the progress of the work contracted for, and a bill afterwards filed by the survivors to enforce a claim under the terms of the contract. Held, that the personal representatives of the deceased partner should have been made parties ; the rule respecting the rights of surviving partners to sue alore not applying to suits in equity. Sykes v. The Brocktilte and Ottawa Raibocnj Co., 9 Grant, 9. 14 — Creditors. Where a bill was filed by one of several creditors of a debtor, who had assigned his estate for the benefit of his creditors, against the debtor, and the trustee seeking an account of the estate and pay- ment without making any other creditor a party, the Court over- ruled an objection for want of parties in not making such creditors parties. Wood v. Bretl, 9 Grant, 78. 15 — Heir-at-law. In a suit to administer the estate of a testator, the heir-at-law ought to be a party, but where the personal representative filed such a bill against the devisee, alleging that no lands had descended, as to which the answer was silent, and the objection was not raised at the hearing, the Court made a decree in the absence of the heir. Tiffany V. Tiffany, 9 Grant, 158. IG — Trustee — Trust estate. Where a trustee commits a breach of trust, the person participating in it is not a necessary pa^ty to a suit for th(> general administration of the trust estate. Tiffany o. Thompson, 9 Grant, 244, 17— Trustee. One devisee of a trustee against whose estate a suit is brought, sufficiently represents thoso interested in the estate, lb. 18 — Municipality — Selling for taxes. A municipality in proceeding to a sale of land for taxes is in the position of a trustee, and if it is afterwards sought to impeach the sale on the ground of any irregularity in directing such sale, and it is sought to make the municipality answerable to the purchaser for th« f< 408 EQUITY DIGEST. U'i< m ' i <' y-'i f J !| En, 1 1 parohase money paid, or the costs of the suit, the municipality must be made a party to the cause. Ford v. Proudfoot, 9 Grant, 478. 19 — Objection for want of After witnesses had been examined, and the cause heard at Sand- wich, the cause was re-argued at Toronto. Held, that the defendant could not insist as a matter of right on an objection for want of par- ties not taken at the hearing at Sandwich. King o. Keating, 12 Grant. 29. 20 — Heir of assignor. A bill having been filed by the assignee of the right to certain lands against the trustee thereof^ without making the heir of the as- signor a party, and the trustee set up a defence impeaching the as- signment, and insisting that such heir was the party entitled to the conveyance, the Court at the hearing ordered the cause to stand over with liberty to amend by adding the heir as a party defendant. Miller v. Ostranier, 12 Grant, 349. 21 — Objection for ivant of should be taken by ansiver. P being a debtor of the plaintiff deposited with him certain mort- gages to secure such indebtedness ; the plaintiff filed a bill against the parties entitled to the equity of redemption of one of those mortgages for payment of the money due thereon, and praying in default fore- closure ; the defendants at the hearing objected that P was a neces- sary party, but the Court overruled the objection as it had not been taken by answer, and P might be ordered to be made a party in the master's oflBce. Jones v. The Bank of Upper Cauuda, 12 Grant, 429. 22 — Charities — Trustees — Attorney General. A bill was filed to administer an estate, and declare a legacy for religious purposes void. The trustees were made defendants, but a question arose whether the Attorney General ought not also to have been made a defendant. See cases cited Story's Eqy. Jur., 1163 and 1164. Esten, V. C, held that the Attorney General was a neces- sary party. Loiig v. Willmotle, 2 Cliam. Rep., 87. 23 — Real representatives. Where a mortgagee institutes proceedings to foreclose against the mortgagor, and the estate of a deceased mesne incumbrancer, the real representatives of such deceased incumbrancer are not necessary parties. Taylor v. Stead, 1 Cham. Kep., 74. X" ■■ . * " SJ a. EQUITY DIGEST. 409 certain mort- 24 — From what time certain defendants are parties — Peti- tion — Allowing creditors to come in. la a foreclosure suit the master at Whitby made the usual order making certain judgment creditors parties on the 26th April, 1861 ; but they were not served till the 3rd day of June, following. They did not appear before the master, and, after ho had made his report, they applied by motion to bo allowed to come in and prove their claims. Hell, that they were parties to the suit from the day that the master made his order ; that the application by motion was regu- lar, and need not be by petition, and that they might come in and prove their claims on terms, Sierling v. Campbell, 1 Cham. Rep., 147. 25 — Purchaser of part of equity of redemjition. It is not proper to make a person entitled to a part of the equity of redemption in a mortgage estate a party in the master's office, but he should be made a defendant by the bill. In these cases the usual reference to the master to enquire as to incumbrances, take account of mortgage debt, and settle priorities had been made, and in proceed- ing under the decree the master before whom the enquiries were had, directed a person who had purchased a portion of the mortgage premises to be made a party in his office. On a former day application was made for a final order in default of payment ; but now Esten, V. C, ** I think the final order cannot be granted against the mortgagor unless the purchaser of part of the property made a party for the first time in the master's office be got rid of in some way, either by waiver, release or disclaimer." Whan v. Lucas. Murray v. Pringle. hur/ayv. Courtney, 1 Cham. Rep., 58. 26 — Heir of deceased mortgagee. Held, that the heirs of a der ed mortgagee of an equity of re- demption are not necessary parties to a suit of foreclosure by the prior mortgagee, the proper party being the personal representative of such mortgagee. Grimshaio v. Parks, 6 U. C. L. J., 142. 27 — Bankrupt mortgagor — Imperial Act 12 and 13 Vict, cap. lOG. A mortgagor who has made a mortgage on lands in this Province and who afterwards becomes a bankrupt in England, is not a necess- ary party to a bill to foreclose by force of the English Statute relat- ing to bankruptcy. Goodhue v. Whilmore, 7 U. 0. L. J., 124. 3d •r- I m .'■'1 i*' 410 EQUITY DIGESt. 28 — Pleading — Mortgagor and mortgagee— Redeeming. Rogers v. Wills, 2 Cham. Rep., 13. 29 — Practice, as to. See Taylor's orders as follows: — to suits, 40 ; crown, 41 ; foreign governments, 42, 43 ; corporations, 43, 44 ; married women, 45,46; infants, 46, 47,48 : setting down, for want of, abolished, 48 ; who are necessary in certain suits, 48, 49, 54, 82, 270 ; rules as to, in certain cases, legatees, 49 ; devisees, 49 ; re^iiui que trust, 49 ; ex. eoutors, 50 ; principal and sureties, 52 ; what may obtain adminis- tration order, 82 ; examination of, 95, 96, 97 186, 216 ; when may be examined, 98, 133 ; notice of, 133, 134 ; rules on, 96, 163, 164; to produce documents on, 97, 1(52 ; by master, 162 ; not to give evi- dence in their own favor, 20 1 ; may for other side, 264 ; wives of, not examinable against husband's interest, 265 ; may be added in Judge'a Chambers, 114 ; master's oflSce, 104 ; interested in the equity of re- demption added in master's office, 1 96, 204; suing or defending a person, to give address for service, 167. 30 — Marriage settlements, dx — Cestui que trust. To a bill filed by one co-partner against another seeking to set aside a marriage settlement as having been mat'e by the settlor at the time when he was insolvent, the trustees and cestui que trust of the settlement are necessary parties, as they are entitled to have the accounts of the partnership taken, and assets thereof applied in ex- oneration of the settled lands. Thotnas v. Torrance, 1 Cham. Rep. 46. 31 — Partners. Where a mortgage is taken in the name of one partner to secure a partnership debt, and a bill is filed to enforce the .security, the rep- resentatives, real or personal, of the deceased partn* r are not neces- sary parties. Stephens v. Simpson, 12 Grant, 493. 32 — Shareholders. (1) A suit for the purpose of setting aside an election of directors of a corporation, on the alleged ground of fraud, may be brought by some of the shareholders on behalf of all, and need not bo in the name of the corporation itself. Davidson v. Grange, 4 Grant, 377. Joint debtors. {2) To a bill by an execution creditor of two joint debtors to set aside conveyances by one of them as fraudulent and void against EQUITY DIGEST. 411 \eming. 41 ; foreign len, 45,46; d, 48 ; who lies as to, in ist, 49 ; ex. tin adminia- ; when may 1,163, 164; to give evi- fives of, not 1 in Judge's ;quity of re- defending a eking to set lettlor at the ;rust of the to have the plied in ex- Cham. Rep. ir to secure ity, the rep- ! not ncces- of directors brought by in the name 377. ibtors to set roid against creditors the grantor was a defendant. Held, that if the grantor was a necessary party his co-debtor should be a party also. Pyper v. Cameron^ 13 Grant, 131. (1) Whore in a bill for partition it was stated that certain in- fants residing with or near their father, out of the jurisdiction of the Court, not parties, wore interested in the land sought to bo parti- tioned, their father being a party defendant, a demurrer for want of parties was allowed, lyron v. Peer, 13 Grant, 311. Persoiud representative. (2) A, who was domiciled in Scotland, died there intestate, leaving some personal property. Three of his next of kin, a brother and two sisters, concurred in appointing an agent in Scotland to wind up the estate and transmit and account to them therefor. The agent did so, and transmitted to the brother some money and personal chattels as all that remained after paying the intestate's debts and funeral ex- penses. The brother paid the sisters their shares of the money, but kept all the chattels. In a suit by the sisters for a divitplainti£f, who had the parcels sold by the eldest son daring his lifetime. The Court restrained this action, declared the plaintiff entitled, as far as might be necessary for his protection to stand in the place of the eldest son in regard to his undivided third of the whole property, and to his charge for two thirds tf the leg- acies he had paid on his brothers' undivided two thirds of the estate, and decreed a partition and other enquiries to give effect to such declaration. Hiscolt v. Berrhiger, 4 Grant, 296. 2 — Construction of will. The tesf-i.tor devised real estate to his wife for life, with remain- der to A B and C, or the survivors or survivor of all of them, their heirs and assigns forever. Held, that the clause of survivorship meant the survivors at the death of the tenant for life, and not of the testator. Peebles v. Kyle, 4 Grant, 334. 3 — Assignriunt by devisee. One of the devisees of an estate sold her interest therein to her brother, and executed witli her husband an instrument in the form of a power of attorney, authorizing the assignee for his own benefit 414 EQUITY DIGEST. \l A "to demand and receive of and from the executor, &c., all moneys which might become due and payable to her and her husband, or either of them, hxj virtue of all devises and bequests under the last will and testament of her father, in fact at the time of the execution of thig instrument she was entitled to a share of another brother's portion of the estate by assignment from him. Held, on appeal from the report of the master, that the instrument executed by the husband and wife had not the effect of transferring the share of the wife in the portion of the brother so assigned. Pherrill v. Pherrill, 10 Grant, 580. 4 — Outstanding lease. The fact that there is an outstanding term in land to portions of which infants are entitled, is no defence to a bill of partition, although it may influence the Court in deciding between a sale or a partition of the estate. Fiizpatrick v. Wilson, 12 Grant, 440. 5 — Parties. To a bill of partition, a lessee for years may be a necessary party. lb. 6— Costs. The costs decreed in partition suits are as in other suits party and party costs, and where any of the parties are not sui juris, costs as between solicitor and client are not decreed even by consent. Hark- ness V. Conway, 12 Grant, 440. 7 — Consolidated Statutes U. C, eh. 80 — Xotifying incum- brance t>s. Partition where ordered, is to be made by the real representative. The question whether partition or sale .should be ordered is proper to be referred to the real representative, who is to make sale if or- dered. The Court may order a sale in the first instance if it sec fit. The Court will use its own machinery for carrying the purposes of the act into effect. In Re Foster, I Cham. Rep., 103. 8 — Conjivmation of report — Con. Stat. U. C, eh. 8(3. The report in a partition nait by bill under Con. Stat. U. C, ch. 86, does not require to be specially confirmed by the Court, but be- fore it will be acted upon it will be cxiimined by the Court, ta see whether there is in it the mtmifcst error referred to iu section 24 of the act, Dwin v. Doubling, 1 Cham. Rep., 365. EQUITY DIGEST. 415 jessary party. ing incum- 2— Coats. In a suit for partition, in drawing up the decree the parties had omitted to have inserted a direction to tax the costs as between solici- tor and client, or to apportion them amongst the several parties according to their respective interests ; on a motion for an order di- recting the master to do so upon the taxation ; Spragge, Y. C, made the order to apportion the costs, as that would effect a proper carry- ing out of the decree pronounced, but refused the order for taxation as between solicitor and client, that being a variation of the decree which could properly be done on re-hearing only. Bernard tv Jarvis, 1 Cham. Rep , 24. 10 — Con. Stat. V. C, 55 — Jurisdiction. In regard to the partition and sale of estates of joint tenants, ten- ants in common, and coparceners, the Court shall possess the same jurisdiction us by the laws in England, on the tenth of August, one thousand, eight hundred and fifty, was possessed by the Court of Chancery in England, and also, as by the laws of Upper Canada is possessed by the Courts of Queen's Bench and Common Pleas, or by the County Courts, 13 and 14 Vict., ch. 50, s. 4. In such cases, any decree, or order, or report, by which a partition or sale is declared or effected, or any deed executed by the master of the Court to give effect to such partition or sale, shall have the same effect at law and in equity as the record of a return in the Court of Queen's Bench, or Common Pleas, or as the County Court has in matters of partition, or as sheriff's deeds now have in other cases. 13 and 14 Vict., c. 50, s. 4. Any partition or sale made by the Court shall be as effectual for the apportioning or conveying away of the estate, or interest of any married woman, infant, or lunatic, party to the proceedings by which the sale or partition is made or declared, as of any person competent to act for himself. 13 and 14 Vict,, ch. 50, s. G. An office copy of the decree, order or report declaring partition shall be sufficient evidence in all Courts of the partition declared thereby, and of the several holdings by the parties of the shares there- by allotted to them. 13 and 14 Vict., ch.,50, s. 4. And see also act relating to the sale and partition of real estate, Con. Stat., U. C, 857. 11— Coats. In suits between joint owners for partition or sale, the costs are to be borne by the parties in proportion to their respective interests in Ill h 1 H Ip! ii''' 416 EQUITY DIGEST. the property, except that in the case of partition the Court if it sees fit may give no costs to either party up to the hearing. Cartwriglu V. Dielil, 13 Grant, 360. 12 — Vesting order. In a suit for partition the greater part of the property, the subject of the partition, had been sold under the decree of the Court, but portions of it still remained unrealized. It appearing that all prior charc;es upon the property (such as the costs of the various parties to the suit, &c.,) had been paid, and that the unrealized property wag far less in value than the amount for which one of the co-owners (the plaintiff) was entitled to credit in account with the other co-owners - on a petition by the plaintiff an order was granted vesting all the un- realized property in him. Arnold v. Hard, 1 Cham. Rep., 252. See Further Directions— Infants— -Trust— Trustee and Cestui Qui Trust — Will. PARTNERS. . See Administration — Application op Payments— Execu- tors — Injunction — Insolvent Act— Marriage Settlement —Partnership — Redemption. PARTNERSHIP. Accounts, 11, 13, 22. AilowuncCH, 14, IG. Chaise oud discharge, 12. Costs, 7. Damages for misconduct, 34. Deceit, 32. Division of profits, 4. Executors, 22, 31. Fraud, 18. Further directions, 6. Interest, 6, 16, 10. Laches in commencing ^uit, H. Lien on profits, 23. 1 — Sale under coiiiniissioii. Miscoii'luct, 2. Parties (".), 9. I'artuerHliip funds, 3, 30. Parol evidence, 19. Parties, 1 (2) Personal estate, CO, Practice, 12, 18, 22. Profits, 25. Heceiver, 3, 3S. ijale under conuuissiuii, 1 (1). Sherifl"s sale, 10. Surviving partner, ritflit of, 21, 24. Wilful default, 17. (1) Where a sale is made under commission issued against one partner, the assignee is only entitled to such partner's interest or share in the assets after payment of the partnership debts, and that too even when the debt originally was due from the partnership to the execution creditors. Partridge v, Mcintosh, 1 Grant, 50. Parties. (2) In a bill to liquidate the joint liabilities and wind up the affairs of a partnership, the party whose interest bad been sold is a neccasarj party, lb. EQUITY DIGEST. 417 '2— Misconduct. Articles of co-partnership provided that a manager of the co-part- nership business should be appointed by a majority of theco-partnera and subject to their control ; and a manager was accordingly appoint- ed, who was subsequently dismissed by a majority, but remained, nevertheless, in the management at the request of another partner. Held, that this was such misconduct in such partner as entitled the others to a dissolution. Newton v. Doratt, 1 Grant, 590. 2— Receiver — Partnership funds. Where it was proved that a partner had purchased a house and a large part of the furniture thereof, with partnership funds, improper- ly withdrawn by him for that purpose ; and such partner being the defendant in the cause, had withdrawn all the partnership books and papers from the jurisdiction of the Court, in breach of an injunction in that behalf, the Court ordered the mother and sister of the de- fendant and whom he had left in possession, to deliver up to the receiver, already appointed, the house and all the furniture, as part- nership property. Prentiss v. Brennan, 1 Grant, 484. i^Division of profits, ital. Held, ilue, whether id incidental rsons, it wai I in which to for carrying le should re- Dses, und the jroportion of ting a special 1 V. Hall, 10 • 'radc. , on parts of as thereof to Id, that such ted as person- ^he sole man- 10 books kepi ce of the firm, ini for a con- lo one of his e right of the lot appearing es, 12 Grant, in the afFaira for damages, the other members will be entitled to maintain a suit for the amount thereof against him, and this right will not be prejudiced by the fact that on the dissolution of the partnership, the continuing partner gave to the one so acting a bond of indemnity, and to save him harm- less from actions, if it appear that the fact of such improper acting of bis partner was withheld from him. S. C, 12 Grant, 123. 30 — Partnership funds. One of two partners carried on the buisness of a bill broker on his own account, and in that capacity received from the plaintiff several sums of money by checks and proceeds of drafts on the plaintiflF as the price of certain promissory notes, and the money was, by the broker,, paid into and used with the partnership funds. It was afterwards discovered that these notes had all been forged by the broker, who absconded, and the remaining partner executed a deed of assignment of all the joint effects to trustees for the benefit of all their creditors. Upon a bill filed for that purpose, the Court held that the plaintiflF had a right to be paid his claim out of the partnership assets. (Spragge, V. C, dissentiente.) Wallace v. James, 5 Grant, 163. One of several partners engaged in the purchase of wheat and flour sold one half of his interest to a third party, to which the other part- ner, who had supplied all the funds used in the transactions of the firm, assented ; and a loss having occurred upon a re-sale, he filed a bill against the original co-partner and his vendee for an account and payment by them of one half the loss sustained on such re-sale. Held, that the vendee was not, by what had taken place, constituted a part- ner of the plaintiff, and the Court dismissed the bill as against him with costs, but directed an account as against the other defendant with costs to the hearing. Mair v. Bacon, 5 Grant, 338. 21— Executor. A testator's direction to his executors to continue to carry on busi- ness with his surviving partners does not authorise the executors to embark any new capital in the business. Smith v. Smith, 13 Grant, 81. 22—DexeU. A B and C were partners, two of them A and B before the expir- ation of the term, induced the third (C) to agree to a dissolution, a valuation of the assets, and a settlement based on such valuation, un- der the false impression that A was the partner who was to retire, and that the business was to be continued by B and C, while the fact h-M: ^im 424 EQUITY DIGEST. was that the object of A and B was to get rid of 0, and to carry on the business without him. Held, that by reason of this deceit the transaction was not binding on C, every partner being entitled to the utmost good faith by hia co- partners in effecting a dissolution of the partnership, and winding up of its aflairs, as well as in their previous transactions. O'Connor v. Naughton, 13 Grant, 428. 33 — Receiver appointed. After the dissolution of a partnership, one of the partners claimed the greater portion of the partnership property as hia own, by reason of certain misconduct he charged against the plaintiff, and made use of the partnership property in carrying on business on his own account. Held, that such proceedings were wrong, and entitled the other part- ner to areceivey. Doupe v. Sleioart, 13 Grant, G37. 34 — Damages for misconduct. Under the usual directions for taking partnership accounts, it is within the province of the master to entertain, and adjudicate upon a claim by one partner for damages sustained through misconduct of the other, occasioning the dissolution before the expiration of the term agreed upon. Jb. See Costs — Judgments — Lands — Limited Partnersuip— MoRTQAQE — Partners. PARTNERSHIP DEBTS. See Mortgaoe. PATENT. Setting aside. Where a party has according to the custom of the clergy corpo- ration, paid the patent fee for a lease, gone into possession and made large improvements ; and such custom being that the party so paying was considered as having a lease for twenty one years, with a right of renewal and pre-emption, (not materially varied by the orders in coun- cil subsequently passed regulating the sale of clergy reserves,) and the crown having in ignorance of the facts, subsequently by letters patent granted the land in question as a glebe for the rector of Dar- lington, such patent was rescinded as having been issued in error and mistake. Martin v. Kennedy, 4 Grant, Gl. See Crown Lands— Crown Patent — Rectories. EQUITT DIGEST. 425 ITNERSUIP— Repeal of. Sii Hue and Psyisu Commission. Orown patent — Mistake. Wh«re the ProTinoial Goverament had appropriated and patent- ed u a glebe, a lot which had been previously ocoupied and improv- ed, and upon which the patent fee had been paid by the occupier and not returned by the government, the patent was set aside as having iasaed in error and mistake, but, under the circumstances, without costs. Attorney-General v. Hill, 8 Grant, 532. Where the executive government have examined into and consider- ed the claims of opposing parties to lands leased from the crown with a claim of pre-emption, and have ultimately granted them to one of those parties, the Court of Chancery has not any authority, where no firand appears in obtaining the grant, afterwards to declare the gran- tee of the crown a trustee of any portion of such land for the opposing party, on the ground that he had previously acquired an equitable interest therein. And quare, if even there had been fraud, whether the Court, under such circumstances, would have authority to in- terfere at the instance of the party who had opposed the grant. Boul- ttm V. Jeffrey, 1 E. & A. B., 111. Su Crown — Crown Patent-^Grant from Crown. PATENT MEDICINE. Sib Alien Friend—- Injunction. PATENT RIGHT. The simplicity of an invention is no reason why a patent in respect thereof should not be protected. Where, therefore, by a simple con- trivance of cutting away a portion of the log out of which a pump was to be manufactured, thus giving it the form of a chair, and by the introduction into the tube of a conical tube through which the piston worked, the plaintiff had been enabled to construct a force- pomp made of wood, for which he had procured a patent of invention, the Court restrained the infringment of the patent. Powell v. Beg- ley, 13 Grant, 381. PAYING MONEY INTO COURT. 1. When money has been paid into Court, as and for the priot or valae of land required by a railway company, the Court will not upon ex parte motion order it to be returned to the company. In Re 0, S. 4* H. E. U. Co,, and Cotton, 4 Qnnt, 101. 3f IV • r 4 Mt 1 Wt 1 i ^M| i ■ 426 EQUITY DIGEST. 2. Where money is ordered to be paid into Court a payment to the aolicitor of the party entitled to it is not a good one, and there- fore is no ground for dispensing with payment into Court. Black- burn V. Sheriff, 1 Cham. Rep., 208. 3. Where the party having the conduct of a sale, neglects to pay into Court the deposit paid to him by the purchaser at the time of sale, the Court will on the upplioation of the purchaser, order him to do so. Semhfe. that a purchaser at a sale under u decree has a right to take out the report on sale and get it contirmed, so as to obtain a completion of the purchaso to himself, at least where he is the sole purchaser. Crooks v. GUnu, 1 Cham. Kep., 354. 4. Although the rule of equity is that money the hands of a stakeholder held for the benefit of others, whose are to be dis- posed of by the Court, will usu;illy be ordered into Court, still in such case it muHt be clear that some of the parties litigant are entitled to the fund or a portion of it. Where, therefore, certain moneys, the pro- ceeds of a policy of insurance, which had been deposited with the attorney of a bank for the purpose of being held in trust for such bank, and with the proceeds to pay off the lirbilities of the party mak- ing such deposit to the bank, had been paid to and were still in the bands of the attorney, and the depositor without shewing what amount was due to the bank applied to have the money paid into Court by the attorney ; the Court under the circumstances refused the appli- cation. Corhelt v. Meyers, 10 Grant, 3G. 5 — Payment of purchase money into Court — Title. Where a sale has taken place under a decree of the Court and has been confirmed, an order will be made for the purchaser to pay the balance of his purchase money into Court, though no inquiry has been made as to title. In Re Slexcurl. Stewart v. Sttwart, 1 Cham. Rep., 243. 6 — Payment of money into Court — Judgment creditors. A confession was given to secure a second set of sureties of a county treasurer, but on an arbitration it was found that defalcations had occured under a former bond, a surety in which was also in the sec- ond. The evidence was conflicting as to whether the protection was for one set or for all. Ou a motion to restrain moneys in the sherifiPs hands which had been made on the confession, it was ordered that il 9 whole amount be paid into Court, and that the subsequent judg« ment creditors should wait. Leonard v. Black, U, C. L. J., Vol. IV, pac:e 260. See Administhation— Corporation— Judgment Cbeditob. EQUITY DIGEST. 427 PAYING MONEY OUT OF COURT. 1. An order for tho {jaymcnt of money out of Court will not be made ex parte, the parly who lias paid it in must bo served with notice. Bullen v. Renwick, 1 Cham. Rep., 213. 2. The purchase money for lands sold under a mortgage was paid into Court. Held, that the mortgagor must have notice of any ap- plication to pay to plaintiff amounts found duo him by master's re- port. Smith V, Kerr, 3 Grant, 609. 3. A power of attorney, or other written authority, is necessary to authorize the payment of money out of Cuurt to the solicitor, even though the parties to whom it is coming are numerous, and not res- dent in America. The additional circumstance of tlic money having been realized from the sale of property mortgaged to secure negotiable debentures,' which were in the possession of the solicitor since the institution of the suit ; held, not to dispense with the necessity of a power of at- torney. Sioan V. Marrnoia Iron Works Co., 2 Cham. Rep., 155. 4. A report hadrbeen made in a suit for the sale of mortgaged property, finding that the plaintiflF (the mortgagee) was tho only in- cumbrancer on tho property, and that the amount due to him was £235 12s. lOd. The property was sold for £261, and the purchase money had been paid into Court. Two years after the date of the report, a motion for payment of the whole purchase money out of Court to the plaintiff was granted without a reference to the master to take a subsequent account, it bein;.^ clear that tho interest and the costs of the sale would make the plaintiiT's claim larger than the amount of the purchase money paid in. GVinour v. O'Brien, 1 Cham. Rep., 244. 5. Where defendant refused to consent to payment out of mort- gage money, plaint!ii obtained order for such payment, but at his own costs. Bernard v. Allay. 2 Cham Rep., 91. See MoRTQAaE — Patinq Money, &c. — Principal and AoENT— Vendor and Purchaser. PERSONALITY. Exemption of from jjaipnent of debts. See Will. r Cheditob. I -! a- m ■""la 'St' I: I Vt 428 EQUITY DIGEST. PERSONAL OONFIDENOE. SiK Mabriaok Settlthint — TaUSTBI. PERSONAL ESTATE. SU PAaTNIBSHIP. PERSONAL REPRESENTATIVE. 1. Bj order XXX, 1853, the Court may proceed without any personal representative of a deceased person, wh:ire none has been appointed, or may appoint some person to represent the estate for the purpose of the suit ; this does not apply to cases where parties have a beneficial or substantial interest, but applies only to cases of mere formal parties. Sherwood v. Freeland, 6 Grant, 305. 2. The personal representatives may file a bill as a creditor simplji upon the testator's estate against a devisee of land under the wili after the personal estats is exhausted, and obtain a decree as an ordi< nary creditor. Tijanyv. Tiffany, 9 Grant, 158. Dispensing with service of. A life policy was assigned to one F, absolutely, who afterwards left the country. The insured died insolvent, and no one adminis- tered to his estate. The plaintiffs claimed the insurance money, alleging that the assignment had been made in trust for them to se- cure a larger sum owing to them by the assignor. The insurance company declining to pay the amount to the plaintiffs ; they filed s bill to compel payment, and moved under the general order No. 30, (June, 1853,) that they might bo at liberty to proceed without a Ile^ sonal representative of the estate of tho insured, but the Court held the case was not within the order. The Toronto Savings Bank t. The Canada Life Insurance Company, 13 Grant, 171. SlB LlSSOB AN* LxSSU—PbAOTICI— PUBOHABSR— SPIOinO PXRFOBUANOE. PERSONAL SKILL. Six Minxbal Lands, 3. PETITION. Sxx MoBTQAax. EQUITY DIGEST. PETITION OP RIGHT. Sci Anoiknt Dooumknt. 429 PHYSICAL WEAKNESS OP TESTATOR. Sbe Administration. PLACE OP PAYMENT. Sll MOETQAOE. PLAINTIFF'S DEATH, Proceedings in ignorance of plaintiff's death. The solicitor of the plaintiff in ignorance of the plaintiff's death, h»d after that event taken certain proceedings in the case. On a motion to confirm these proceedings, it was held that no order could be made except by consent. Graham v, Davis, 2 Cham. Rep., 187. PLEADINGS. Annuity, 1. Attonuy Oeneral, 11. BMric dmotor and nunaj;eri, 12. 0(Hlaten vMtu V. Crooks, 1 Grant, 169. EQUITY DIGEST. 433 'j—Demuivrer to part of hill. (1) A demurrer to part of a bill unaccompanied by an answer to the rest is informal and would be overruled, Martin v. Kennedy , 2 Grant, 80. Supplemental bill. (2) A demurrer to a supplemental bill " except so much of it as is authorised by nn order of the Court" set forth in it, is informal and would be overruled for not defining with sufficient certainty the parts of the bill to which the demurrer refers. lb. Note. Supplemental bills are abolished by order. When overruled. (3) Where a cause having come on to be heard on the pleadings and evidence stood over to add a party, and the plaintiff filed a supple- mental bill supplying the defect, and setting forth additional matters itud z new ground for relief, the same being alleged to have come to the plaintiff's knowledge after the hearing, a demurrer, on the ground that the supplemental bill, so far as it contained such new matter, had been filed without leave of the Court, was overruled, lb. (4) An original bill having been filed seeking relief against a patent as having been issued in ignorance of the plaintiff's rights, and at a subsequent stage of the cause a supplemental bill having been filed, setting forth matter of which thn plaintiff was ignorant when he filed the original bill, and on which he impeached the patent itself as void. A demurrer to such supplemental bill was overruled, lb. Statute of Frauds. (5) Where the plaintiff by bis bill sought to compel the specific performance of a contract, which, from the statements of the bill, it was plain had been created by parol, and that the plaintiff relied on acts of part performance to take the case out of the statute of frauds. Held, that it was not necessary that the defendant should do more than claim the benefit of the statute, without alleging that there had not been a note in writing. Townsley v. Charles, 2 Grant, 313. ^— Fraud. The plaintiff had bought from the defendant forty-seven acres of land, paid for it, and taken a conveyance of it, bat subsequently discov* ered that forty-four acres of it were covered with water, whereupon he filed a bill charging the defendant with fraud. No evidence of any fraud having been given, and it rather appearing that both parties 8« 434 EQUITY DIGEST. had acted in ignorance of the nature of the property, the bill was dis- missed with costs, but without prejudice to any new bill being filed. Clark V. Barnham, 2 Grant, 644. 9 — Co-defendants, question between. The title to land conveyed upon trust being in dispute between the person creating th^ trust, beirtg a defendant in the suit, and one of the other defendants, and the plaintiffs being entitled to have this land sold if it really belonged to the author of the trust; the ques- tion between him and his co-defendant must be decided in the suit. Gillespie v. Grover, 8 Grant, 558. 10 — Part of salt — Wliere defendant hderjsted in only. Where a defendant is not concerned in the whole of the suit, and the part in which he is iiiterestoJ can be properly separated from the rest, he can object to the frame of the bill; but this principle does not apply where the parts of the salt are not interwoven, but one follows the other, and the part in which the objecting defendant is interested must first be disposed of and be dismissed from the suit before the other part can be entered upon. Fl>. 1 1 — A ttorney-Gcneral. A bill will lie by some of the inhabitants of a municipality alleging an illegal application of the funds by the mayor, which the council refused to interfere with. The Attorney-General is not a necessary party to such a suit. Paterson v. Bowes, 4 Grant, 170. 12 — Usury — Bank directors and managers. The plaintiff in a bill to impeach a security held by an incorpora- cd bank, stated that the notes held by the bank, and in respect of which the bank claimed a lien under their charter upon certain stock had been " discounted for the said G R and II upon an illegal and corrupt ngreeraent, whreby and by reason whereof the said bank should and did receive from G R and II upon the discount of the said promissory notes a much larger and greater rate of interest than ut the rate of seven percent, per annum, and that it was only througii and by reason of such discount upon sueii illegal and usurous considera- tion that the said bank became, and is now holder of the said promis- sory notes." Held, a sufficient allegation of the usury as between a stranger and a party to the transactions to let in the evidence of the usury. Drake v. The Bank of Toronto, 9 (jrant, 11 G 13 — N'ote given without considaration — Want of equity. Where the maker of a promissory note was sued thereon, and in- itead of raising the defence at law, that tho note had been given EQUITY DIGEST. 435 without consideration in that, save as to part, no value had been re- ceived by the maker, pleaded that the plaintiff in the action was not the holder of the note, and a verdict was rendered against the defen- dant for the full amount thereof, for which execution against lands was sued out and placed in the sheriff's hands, whereupon the de- fendant in the action filed a bill t6 restrain proceedings at law. A demurrer for want of equity was allowed. Leilch v. Leilch, 11 Grant, 81. 1 4 — Pa ) i ies — Exec ittors. A bill filed by A and B, as executors of the deceased mortgagee, to foreclose, did not allege that probate had issued to them. Held, defective on demurrer. Hefd, also, that the heirs of the deceased mortgagee, or the persons beneficially interested in the real estate, if mortgage not redeemed, were not necessary parties to such suit, it bping usual to make them parties in the master's office for the purpose of rc-conveying if mortgage redeemed. Latorence v. Hum- phries, 11 Grant, 209.. 1 5 — Misjo iiulc r. Several persons being in possession of separate portions of crown land filed a bill claiming to have, by the invariable usage of the government, a pre-emption right, each to the portion he was in pos- session of, alleging that a patent had been obtained for all the lands by a defendant through fraud, and praying that the patent might be rescinded. A demurrer to the bill for misjoinder was allowed. West- hooke V. The Attorney-Ge.neral, 11 Grant, 264. 16 — Parties — Personal representative. To a bill, by a mortgagee, for a sale after the mortgagor's death, the personal representative of the mortgagor is a necessary party ; but not to a bill of foreclosure. While v. Haighl, 1 1 Grant, 420. 17 — Parties — Debtor and surety. To a suit by a surety against the creditor for an assignment by him of a judgment recovered against the debtor, the debtor is a neces- sary party. Gockburn v. Gillespie, 1 1 Grant, 465. 18 — Parties — Personal representative. Where a testator devised his real and personal estate to A, subject to a charge of $200 in favor of B, and A, after the testator's death, mortgaged the real estate to B to secure a further sum ; a bill by B for payment of the two sums, praying in default a foreclosure or sale, was held not to bo multifarious. Kdhj v. Arddh 11 Grant, 579, 436 EQUITY DIGEST. ■ i :; .5 19 — Personal representative. In such a case the personal representative of the testator was held to be a necessary party, and an allegation that the defendant had been appointed executor by the will was hbld insufBcient in the ab' sence of any allegation that he had proved the will, or had acted at executor, lb. 20 — Cloud on title. — Sheriff's deed. A bill by the owner of land will lie to set aside a registered deed as a cloud on his title, though no privity exists between him and the parties to such deed, and no fraud on their part is alleged in the bill, Qu(sre. Whether a bill will lie to remove a cloud on the plaiu- tiflTs title unless it appears that the impeached deed, if valid, would effect the equitable title only, or unless it appears that the plaintiff is in possession, or that the lot is wild, and not in possession of any one, so that there is no opportunity of first indicating the plain- tiff's title at law. Shaw v. Ledyard^ 12 Grant, 382. 21 — Multifariousness. To a bill by an execution creditor to set aside as fraudulent against creditors, two distinct conveyances executed at different times to two separate grantees, the two transfers having no connection with one another, a demurrer for multifariousness was allowed. Pyj>er v. Cameron, 13 Grant, 131. See Alimony — Injunction — Insolvent Act — Parties— Partnebs — Partnership. PLEA OF PAYMENT. See Collateral Seouritt, POSSESSION. 1. Possession is notice of the title of the party having possession without proving notice of such possession by the' party charged with notice of such title. Attorney General v. McNully, ll Grant, 281. (Affirmed on re-hearing, 11 Grant, 581.) 2. The defendant's mother was in possession of a farm at the time of her second marriage, and the defendant who was her son, by a former marriage, and was a minor, lived with her. On the death of her second husband the defendant, who had just come of age, con- tinued with his mother on the farm and managed it. HeM^ that be EQUITY DIGEST. 437 tor was held fendant had '. in the aV lad acted as stered deed him and the d in the bill. 1 the plaiu- valid, would the plaintiff )OssesBion of ]g the plain- } fraudulent fferent times neotion with I. Pyjier v, -Parties— ig possession charged with Grant, 281. farm at the I her 8on, by 3n the death 5 of age, con- Held, that he oould not claim the farm against a person to whom the mother subM* qoeotly mortgaged it. White r. Hatght, 11 Grant, 420. Title to. 3. The defendant's father had for sixteen years been in posses- sion of land to which ho had no title, legal or equitable, and the legal owner then conveyed it to the defendant, a youth about twelve years old, who was living on the lot with his father, and continued to do so for eleven years thereafter, when the property was sold on an ex- ecution against the father. HeM, that the possession after the exe- cution of the deed was the possession of the son ; that the father acquired no title thereby against the son ; and that the sheriff's deed was void against the son, and should be set aside as a cloud on his title. McKinnon r. McDonald, 11 Grant, 432. 4 — Delivery of. The Court, after the final order of foreclosure had been made and acted on by the plaintiff^ granted an order for the delivery up of pos- session of the mortgage premises, though not asked for upon the final order being obtained. Lazier v. Rannay, 6 Grant, 323. See Vendor and Vendee. POSTPONEMENT OF EXAMINATION AND HEARING. The fact that a defendant in a cause has since the filing of the bill temporarily loft the jurisdiction of the Court, is no ground for post- poning the examination of witnesses, and the hearing of the cause. Galbraith v. Gurney, 1 Cham. Rep., 279. POWER OF FOREIGN ADMINISTRATOR. See Administration. POWER OF APPOINTMENT. See Will. POWER OE SALE. To pay debts. Lands were devised to trustees for the purpose of carrying out the will of the testator, who reserved sit lots which he desired should be sold for payment of debts not charged on lands, the residue to his grandobildren. Held, that the trustees had a right to sell the whole 438 EQUITY DIGEST. 'if ft 1 of such property for payment of debts left unpaid by the personal es- tate, and the lots specially appointed to be sold for that purpose, and that^in such a case a purchaser who has not notice that all the debts not charged on lands are paid, will be justified in assuming that the trustees are properly proceedirj to a sale. Bvf u. Meiohurn, 7 Grant) 73. Sale binder — Demurrer — Parties — Registration. The owner of land eold and conveyed one acre thereof, afterwards and before the registration of the deed of this acre, he executed a mortgage on the whole estate, (200 acres) which was duly registered, and subsequently the purchaser of the acre registered his deed. De- fault having been made in payment of the mortgage money, the as- signee of the mortgagee proceeded to a sale of the estate, the whole of which, including the acre, was sold and duly conveyed. The purchaser of the acre filed a bill against the person exercising thff power of sale, and his vendee claiming a right to redeem by virtue of his interest in the one acre, and alleging want of notice of the inten- tion to proceed to a sale under the power contained in the mort- gage. To this bill the vendor under the power, put in a demurrer for want of equity, and also for want of parties, on the ground that the mortgagor was a necessary party. //eW, that for tlie purpose of obtaining the relief prayed by the bill, the mortgagor was not a necessary party, although if the bill had sought for payment of the surplus, if any, of the purchase money over and above the amount due on the mortgage, it would be necessary to bring him before the Court. Daniel v. Davidson, 9 Grant, 173. See Dower— Mortqage. PRACTICE. a J Absconding defendant, B7, 83. Absent defendant, 43. Absence of venue in bill, 117, 118. Absent particM, 1. Adding plaintiffH, 31, 150. i " parties, 2, 114. Administration ad litem, 165. Affldavits, 3. Agents, 4. Amendment, 5, b4, 148. Answer, 6. Appeal, 7. " from ma.Mtcr, 50, 85. Appealable order, lUO. Attachment, 8. Attornment, 166. Award, 80. Bankrupt, 41. " mortgfigor, 163. BHl, 91. Chtuubers, 62. Claimants to bcque.stcred property, 40. Clerical error, 153. Committing for contempt, f.0. Commission of lunacy, quashing, 130. Contempt, 00. Corporations, 30. Costs, 48, 74, 79, 80, 123, 124, 126, 128, 12D, 140, 144, 149, 152, 160. Coimsel's opinion, 0. County Court, 66. Creditor's hill, 10. Day for payment, 110. Declaration of rights, 105. Dgcrees, 36, 155. " mistake in, 60. " under 37th order, 42. Do lntcrcs.se, 45. 1)0 lunatico, 01. Demurrer, 11,02, 122. Diligence, want of, 130. Ditimissing biil, 12, 68, 65. fiQtJITY DIGEST. 439 i, 126, 128, 12J, Elactlng, where to proceed, 77. Evidence, 13, 154. Eziuulnation, 14. " of parties, 34, 38. •< *' defeiidunt, lUU. « " witnesHBH, 90. « viva voce, 3l>. Exceptions, SO. Execution of oonvoyance by infants, "H, Executors, 16, 37. Exlilbit, 03. ForocloHure, 10, S3, 62, 87. •' eettlnif aside, 100. Foreclosing where valu failed, 101. •• suit, 14U. aood-Friday, notice for, 64. Husband and wife, 120. Infants, 17, 76, 147. Infant defendants, 33. Injunction, 18, 65, 94, 93, 1C4. Imtalmenta, 71, 88. Judgments creditors, 166. Just allowances, 67. Lands improprly sold, 118 (2). Lunacy quasniiit; couiniissiuii, 139. Married women, 70, 119, 120. Master's report, 121, 125, 131, 1U3, 124. Miscellaneous, 29, 136. Mistake in decree, 09. Mortgage, 41, 81. Motion for decree, 112. " staudinK over, 137. " cnlarginent of, 169. Next of kin, 47, Nutice'of examination for Good Friday, £4. Notice for a day not a court day, 133 Opening publication, 46, 90. Orders of court, 19, 03. Order to dismiss, 06. " 48th, 60. K " 42nd, 127. Orderingmoney into court, 107, 116. Parties, 37, 146, 160, 103. Partners, 61. Passing and entering decreet, 40. Payment into court, order for, 100. Petition, 20, 111, 143. Perpetuating testimony, 72. Pro confesso, 21, 07. Producing conveyance, 32. Production of paiwrs, 34, 39, 61. Proving deed, 32. Pro Interesse suo, 40. Proceeding at law, 77. Purchaser, 68. Plaintiff's right to proceed. 10». Preliminary reference, 141. Ueceiver, T2, 40, 104. Kcfcrcnce, 49, 74. " ureliminarj', 141. " back to master, 142, 147. Ue-hearlng, 23, 33, 82. Keplicatiun, 24. Ite-sale, 26, 08. Itcsidencc, 43, 06. llcsts, 132. Reviving, 04, 73, 157. Sale, 165. Security for co.sts, 103. Separate answer, 70. Service uf bill, 01. " pleading by parties, SO. " .substitutional, 20. Set off, 30. Setting down cause, 162. " " by defendant, 153. Speciflc ixirformance, 48. Standing over, 78. Striking out cause, 103. Subiititutional service, 20. Traversing note, 53. Trial of issues, 36. 'lYustce, 124. Varying decree, 82. Viva voce e.xaminatiou, S9. Witness refu^iing to bo examined, 44. Wife, 81. Warrant, 27. Witness, 28. 38, 90. 1— Absent parties. Where it appeared that a party interested was not before the Court the bill stating such person to be out of the jurisdiction, but no proof was adduced of the fact, the Court refused, notwithstanding the con- sent of the defendant's council to proceed with the cause, without such evidence being furnished. Micltie v. Charles, 1 Grant, 125. The residence out of the jurisdiction of the Court, of a party having a substantial interest, is not now a sufficient cause for proceeding in his absence, when it would have been so, when persons out of the jurisdiction could not in England be served with process; it must also be sliewn now to be impossible to effect service upon such absent party. But this ia not necessary in case of nierely formal parties, nor perhaps of parties having but secondary or unimportant interests. LeTarge v. DcTuyle. 1 Grant, 227. 2— Adding parties — Interrogatories, expunging. Where a cause stood over at the hearing, with leave to add parties and to exhibit an interrogatory to prove the will of the testator, 440 EQUITY DIGEST. i ■ ix'i- i and the plaiotifT aftt^rwards amended by making the devisees of the testator oo-plaintiffs, and in addition to the interrogatory to prove the will, exhibited interrogatories to prove the faot of the persona so ad- ded as co-plain iffs being the persons named in the will A motion made to expunge .'hese interrogatories as being unwarranted by the order, was refused with costs. Chisholm v. Sheldon, 1 Qrant, 425. 3 — Affidavits. Where affidavits used upon a motion against a solicitor personally, calling upon him to pay in certain moneys received in the course of s cause, were entitled in that cause omitting any mention of the solici* tor. Held, that the entitling was sufficient. Crooks v. Crooks, 1 Qrant, 57. Exceptions to an answer cannot be shewn as cause against dissolv- ing a special injunction, for if the answer be insufficient, ii may atill be used as an affidavit. Harrison v. Baby, 1 Grant, 247. Per Eaten, V. C. Affidavits cannot be used ofi a motion where no intention to read affidavits thereon is mentioned in the notice of motion. Parish v. Martyn, 1 Qrant, 300. 4 — Agent. W C having filed a bill u> administer the estate of his father, ob- tained from the Court an injunction enjoining several judgment creditors who had placed executions against the lands^of the deceased in the hands of the sheriff from proceeding thereon, until a decree for administering the estate could be obtained, kfter lUc injunction had been dissolved, W C, by the advi^- ^ solicitor, sold part of the estate, and the greater part of the .lase money w retained by the solicitor, upon which he claimed have a lien for his costs. A decree was afterwards obtained in the sam cause, making the injunction perpetual, after which the solicitor advised the conveyance of a loige portion of the estate to his (the solicitor's) partner, upon certain trusts, whereby the oldest judgment creditors was entirely ex- cluded from all benefits. The agent of the solicitor advised a conveyance of another portion of the estate to one of the creditors, and obtained from this creditor i power of attorney to sell, under which he contracted to sell several portions of the lands so conveyed, and received several sums of money on account thereof, which he also applied to his own use, with the exception of certain parts paid to his client. One of the defendants upon these facts filed a petition under the 163rd order, praying that it might be referred to the master to en- <|aire and report if the sales have been beneficial to the estate ; and if ' rn-^ EQUITY DIGEST. 441 the muter ihould be of that opinion, then that the proper parties might be ordered to pay the amount received into Oourt, Held, per cur., that the proper order to make would be for a refer- ence to enquire and report, and if the sales adopted, then that the money remaining in the hands of the solicitors should be forthwith paid in, without prejudice to the creditor's rights to got rid of the con- tracts. Blake, Chancellor, dissentiente, who considered that the proper order to make, was for the immediate payment of the money, what- ever might be the ultimate disposition thereof. But held also per cur that had the petitioner given notice to the parties that relief would be asked, sufficient appeared on the affidavits to warrant the Court in making an order for immediate payment, pending the en- quiry before the master, and that the solicitors could not claim to have any lien for costs. Held, also, that there did not appear sufficient, either in the pe- tition or in the affidavits, to enable the Court to pronounce any judgment as to the liability of the principal for the acts of his agent. The affidavits and petitions were entitled in causes of Crooks v. Crooks, omitting any mention of the solicitors : held, that the enti- tlingjwas sufficient. Semble, that where from the nature of the facts upon which a petition 1o the Court is founded, they cannot be sworn to it is not sufficient to make use of the short form given in the 163rd order, but that such facts should be stated in the petition, so that the respondents may be made aware to what extent and on what grounds relief is sought against them. Crooks v, Crooks, 1 Grant, 67. h—AvMndment ^—Answer. 7— Appeal. See *' Amendment." See " Answer." See " Appeal." i—AttachTnent. A party arrested upon an attachment out of the Court is entitled to the benefit of the gaol limits, on production to the sheriff of the certificate from the clerk of the crown of bail having been filed ac' cording to the provisions of the Statute 10 and 11 Vict., ch. 15, Ss rwf IMF rs.i.-^-j-, <- Wy^ SoC; J; / // 342 EQUITY DIGEST. V ■■■: which places prisoners in custody upon such attachments, on the same footing as debtors. Davis v. Caspar, 1 Grant, 354. And where in such a case the sheriff took bail to the limits and discharged the prisoner, an order on the sheriff directing him to pay the amount for which the party had baen arrested was refused, the Court considering it doubtful whether the Act 10 and 11 Vict., ch. 15 would have the effect of repealing the provisions of ll, Geo. IV. ch. 3 ; but left the party to his action at law. lb. Where, by the injunction issued in a cause, the defendant, bis agents, &c., were restrained 'from preventing the plaintiff, his coun- sel, &c., from haviti!^, and from in any way interfering with their having free access st all times to the books and papers of the said co- partnership, and each and every of them, and from removing such books and papers, or either of them, from the usual place of busincsi of the said co-partnership; and from retaining, or keeping, or suffer- ing to be retained, or kept, any of the said books or papers in any other place than the place of business of the said co-partnership until, &o.," and upon the plaintiff, who had been a partner of the defen- dant, applying to the brother and clerk of the defendant for access to the said books, and which had usually been kept locked up in a desk in the place of business of the co-partnership; where such application was made such clerk answered t'* the effect, either that he had " in- structions not to suffer," or that he had *' not instructions to suffer," the plaintiff to see the books, when at the same time he was awaro that the books and papers had been removed from their accustomed place to the private residence of the defendant by the defendant, assisted by the said clerk, and subsequently removed by the defen- dant to Toronto. Held, that the clerk was guilty of a contempt of the Court, and was ordered to pay the costs of the motion to commit. Quare. Whether a party whose committal has been ordered for breach of an injunction, and against whom a sequestration has been granted for the same contempt, can move against the writ before clearing his contempt. Prentiss v. Brennan, 1 Grant, 428, 497. 10 — Counsel's opinion. Where the plaintiff had given a mortgage en a steamboat, and the mortgagee afterwards sold the vessel, and the question was : whether he was to be charged with the amount of the purchase money, or merely with certain securities received on the sale, in lieu of such amount. The defendant, (the mortgagee's executor,) admitted the poawssion of a copy of a letter from the mortgagee, refusing to join in EQUITY DIGEST. 443 ta, on the same ;he limits and Dg him to pay u refused, the 11 Vict.ch. ' 11, Geo. IV. (lefeDdaot, Lis a tiff, his coun- ing with their of the said co- removing such ace of busincsi sping, or suffer- papers in any rtnership until, ■ of the defen- nt for access to ed up in a desk uch application xt he had '* in- ions to suffer," i he was aware .eir accustomed the defendant, I by the defea- a contempt of ition to commit. !en ordered for ation has been the writ before 428, 497. niboat, and the ti was : whether jhase money, or ,u lieu of such ) admitted the fusing to join in the sale, and an opinion of counsel relating to the same matter ; but alleged that these documents did ''not relate to the plaintiff's title, or the case made by the bill." Hfild, that the plaintiff was entitled to production, aa the plaintiff's case and that of the defendant were, un- der the circumstances stated, so interwoven and inseparably connect- ed that nothing could relate to the one without also relating to the other. Hamilton v. Street, 1 Grant, 327. \Q— Creditor's hill. A lirge body of creditors may he represented by one or more of the number, but in any such proceeding the bill must disclose a suf- ficient reason for this departure from the rule of practice requiring all persons interested to be parties to the suit ; where, therefore, a bill by one of several creditors, entitled under a deed of trust, was filed and stated " that the creditors; of the said L entitled to the benefit of the said indenture are too numerous to make it practicable to prose- cute this suit if they were all made parties." Held, that such statement was too general to satisfy the Court, the rule could not be oomplied with. Michie v. Charles, 1 Grant, 125. Qiicere. Whether necessary to furnish proof of the allegations that parties arc too numerous to be all brought before the Court, and whether in a creditor's suit any decree can be made without proof of his debt? lb. In a creditor's bill against the devi-^ces of a debtor, it is not indis- pensible that the heir should be a party. Fenny v. Priestman, I Grant, 133. Upon ,'i creditor's bill a receiver of the rents and profits of the tes- tator's real estate will not be granted when the plaintiff does not al- lege in his bill and clearly prove insufficiency of the personal assets to pay the debts, and does not pray by his bill for the application of the realty or the rents and profits thereof to that object. Saunders v, Christie, 1 Grant, 137. 11 — Demurrer. A demurrer to amendment of a bill overruled with costs as being a demurrer to part of bill only, and as relying on a ground appearing fVom the whole bill. Walker v. City of Toronh, 1 Grant, 447. See " Demurrer." 12—Dismlsshi(/ bill. Under the 12th order of this Court, the plaintiff is bound to file a replication within one week from the date of entering into the under- ■y ■ 'I iU EQUITY DIGEST. taking to speed, whether a commission to examine witnesses shall be required by him or not. McNab v. Gwynne, 1 Grant, 151. Where one of the defendants had answered, and the time for re- plying had expired, a motion was then made to dismiss the bill as against him for want of prosecution, but it appearing that such de- fendant was president of an incorporated company, whose answer had not yet been filed, the motion was refused with costs. Rees v. Jacques^ 1 Grant, 352. 13 — Evidence. See " Evidence," 14 — Examination of a defendant as a witness. Held, per cur., (Blak<;, C, dissentiente) that where a plaintiff ex- amines a defendant whoso interest in the suit is such that a decree for the plaintiff must necessarily operate for the benefit of such de- fendant, bueh examination does not disentitle the plaintiff to relief against the other defendants. Saunders v. Christie, 1 Grant, 137. 15 — Executors. See " Executors." 1 6 — Foreclosure. 17 — Infant. 18 — Injunction. 19 — Orders of court. See " Foreclosure." See " Infants." See " Injunction." See •• Orders of Court." 20— Petition. On an application by the executor of a mortgagee for the infant heir of a mortgagor to convey after the executor has obtained a final order of foreclosure, the petition and affidavits should be entitled not in the cause, but in the matter of the infant, Re Hodges, 1 Grant, 285. Where a testator devised his estate (real and personal) upon trust, amongst other things, for the support, &o., of his children until they should attain the age of twenty-One, or marry, and so soon as the youngest attained the age of twenty-one, or mainried, then to convey 25- EQUITY DIGEST. 445 ibe said estate in equal proportions to the children, with a devise over to his brothers and sisters in the event of the death of all his children under the age of twenty-one, or unmarried, a petition present- ed by the widow and infant children of the testator praying for a sale of a portion of the corpus of the personal estate, and for the purpose of maintaining the family and keeping the houses in repair was re- fused with cost. Mcintosh v. Elliott, 1 Grant, 440. 21 — Pro confesso. Where a plaintiff had obtained an order to take the bill pro confesso against one of the defendants, and afterwards applied to amend, by adding parties without prejudice to the order which had been so ob- tained ; motion was refused. Herchmer v. Benson, 1 Grant, 92. 22 — Receiver. The Court will entertain a motion to discharge an order for a re- ceiver, though such order was made upon notice. Saunders v. Chris- tie, 1 Grant, 137, and Prentiss v. Brennan, 1 Grant, 371. 2^—Re-hearinf/. A party is entitled to have a cause re-heard before this Court, which has already been heard and re-heard by the yice-Chancellor alone. Cook v. Walsh, 1 Grant, 209. But only one re-hearing will be permitted as of course, lb. 24 — Replication — Nunc pro tunc. Where the plaintiff had proceeded in the cause as if a replication had been filed, and no motion was made by the defendant to have the mistake rectified ; the Court, after service of the rule to produce and notice of the examination of witnesses, allowed a replication to be filed nunc pro tunc, on payment of costs. Beckett v. Rees, 1 Grant, 434. 25— Resale. Where an estate was sold under the decree of this Court, and iu the conditions of sale it was stated erroneously that the property was subject to dower, when in reality the dower attached to the equity of redemption only ; in consequence of which the property brought a much less sum than it otherwise would ; a re-sale was ordered on the petition of the executors of a party who had been surety to the cred- itor, at whose instance the sale was had ; and under the circumstances the oosts of the petitioners were ordered to be charged upon the es- tate^ Jones V. Clarke, 1 Grant, 368. iv -■^ 1 :, I. '- .1 W- 446 26- EQUITY DIGEST. -Substitutional service. Where a plaintiff desires to effect service of the subpoena by serving the agent of an absent defendant, he must shev? that the party to be served is the agent of the defendant in relation to the subject matter of the suit, to such an extent as to satisfy the Court that the accept- ance of a subpoena by such ae;ent will fall within tlie authority con- firmed upon him by his principal ; where, therefore a motion for such order was made, grounded on an affidavit which stated that the agent at present conducted the defendant's business of land agent, and had *' acted for the defendant in reference to the mortgage, which was the subject matter of the suit" the application was refused. Passmore v. NicoIJs, 1 Grant, 130. 27 — Warra7it. A warrant to the sheriff to commit a party is not irregular, though no return day is mentioned in it Prentiss v. Brennan, 1 Grant, 497. 2^— Witness. Where the defendant's solicitor had omitted to ask a witness vrhat had become of a deed mentioned by the witness in the course of his examination, in consequence of which the defendants would have been precluded from giving secondary evidence of the contents ; per- mission to exhibit an interrogatory, to be settled by the examiner, to prove where the deed was, was given to the defendants afler the case had been put in the paper for hearing. Covert v. Bank of Upptr Canada, 1 Grant, 566. In a creditor's suit, a witness had been examined in the master's office touching the claim of an alleged creditor with a view to the claim being disallowed ; after his examination had been concluded, the plaintiff stated, on affidavit, that since the examination he had learn- ed that the witness could have deposed to the fact of the alleged creditor having admitted that his claim had been settled, and moved to be allowed to re-examine the witness on the point; the motion was refused with costs. Pnilrrson r. Scott, 1 Grant, 582. 29 — Miscellaneous. Where plaintiffs and defendants mutually leave particulars in the dark, which it is necessary the Court should be informed of, a refer- ence on these points will be made to the master. Bcthune r. Caul cutl, 1 Grant, 81. Where it comes out in the course of a cause that the ancestor of one of the parties to the suit, who claims as heir-at-law, has in fact Equity digest. 447 made & will, it is incumbent on the Court to direct an enquiry on that point, although unnoticed in the pleadings. Chhkolm ». Shel- don, 1 Grant, 108. Where a plaintiff erroneously asserts in one capacity, but it appears from the statements in the bill that he is entitled in another capacity the Court will give him the relief he seeks. Fisher v, Wilson, 1 Grant, 218. ^0— Corporation. Where one of the defendants was a corporation, for whom the plaintiff had entered an appearance under the 75th of Vice Chancel- lor Jameson's orders. Held, no objection to a motion for an order to examine witnesses against the other defendants. Rees v. E'ekett, 2 Grant, 134. 31 — Adding 'plaintiffs. Where a bill is amended by adding parties plaintiff, the depositions of witnesses, who have been previously examined in the cause, may be read at the hearing. Chisholm v. Sheldon, 2 Orant, 178. 32 — Producing conveyance — Proving. Where a conveyance is produced upon notice by an adverse party, who claims an interest in the cause, under the deed so produced, the party calling for its production is not bound to prove its execution. lb. ^^—Foreclosure — Infant defendants — Re-hearing. Where a decree of foreclosure against an infant defendant, did not reserve a day after his attaining twenty-one to shew cause, and upon his attaining his majority, the defendant applied upon affidavits to pat in a new answer, and raise a fresh defence. Held per air., (Blake, C. absento) that the relief could not be obtained without a re-hearing of the cause, and the motion was therefore refused with costs. Mair v. K. -r, 2 Grant, 223. • Upon the rc-hearing of a cause, where the decree for foreclosure did not reserve a day to the infant. Held per cur., (Blake, C. dis' tentiente,) that in decrees of foreclosure against infant defendants, a day to shew cause after attaining twenty-one, must be reserved to the defendants. lb. [Affirmed on appeal, 26th February, 1852.] Where under a decree an application is made to put in a new an- iw«r for the purpoie of raising a defence different from that Ht up 448 EQUITY DIGEST. ,. ' . 1- by the guardian of the infant, the application must be founded on affidavits dhewing that the new defence is a proper one to be per- mitted to be raised ; where, therefore the ground of the application was that the mortgagor was a mere trustee for others, and the affi- davit in support of the motion did not state that the plaintiff had notice of such alleged trust, the motion was refused with costs, [Esten V. C., diss.'] lb. 84 — Examination of party — Production of papers. A party to the suit having received notice of being examined bj the opposite partV: \n not entitled to call for the production of papers in the possession of his adversary, in order the better to enable bb to give his testimony. Howcutt v. Rees, 2 Grant, 268. A party to the suit admitting the possession of documents relating to the matters in question in the cause, the opposite party is prim fane entitled to their production, and the party in whose custody they are must assign some ground for exempting them from the gen- eral rule. lb. The defendants having obtained an order of course for the produc- tion of documents in the plaintiff's possession, relating to the matters in question in the cause, the plaintiff without producing any, lodged an affidavit stating that he had no such documents, except the title deeds of the property in question in the suit, and certain letters ad- dressed to one K, who had purchased the property from the defen- dant, and who afterwards sold the same property to the plaintiff, that the suit was for the specific performance of a parol agreement partly performed, and not admitted by the defendant, and that the letters did not relate to the matters in question, otherwise than by ?).ffording evidence of the agreement, and its part performance, the affidavit filed in support of the motion merely said that the defen- dant was desirous of inspecting the letters in order to correct bis intended testimony. HeUl, that he was not entitled to their produc- tion, lb. 35 — Trial of issues. A bill was filed charging the defendant with having purchased certain lands as the agent of the plaintiff, and with his money, and praying to have the defendant declared a trustee of the land for the plaintiff. The evidence on the point of agency or no agency be ing contradictory, issues were directed to be tried as to the agency, and as to payment of the amount of purchase money haying beta w, EQUITY DIGEST. 449 made out of moaeys belonging to the plaintiff, or having been charged against him in account by the defendant. Macaulay v, Procter, 2 Grant, 390. 36 — Decrees — Set of. Where the decree in a cause directs sums of money to be paid re- ciprocally by the parties, but is silent as to setting off one sum against the other, that object cannot afterwards be attained upon motion ; to do so the cause must be re-heard. Roheilson v. Meyers^ 2 Grant, 431. 37 — Parties — Executor. Where an executor who has renounced probate of the will is made defendant to a suit, the bill can only be dismissed as against him with costs. Stinson v. Stinson, 2 Grant, 508. " 38 — Examination of parties — Witnesses. The statute 14 and 15 Victoria, c. 6G, does not authorise parties being received as witnesses on their own behalf. Fuller v, Rich- mond, 2 Grant, 509. (The above act is repealed.) (But see Brennan v. Prentis, Q. B. Mich. Term, 1851. 39 — Viva voce examination — Production of documents. The mere fact of the plaintiff, during the tiva voce examination of a defendant, producing documents for the purpose of having them proved will not entitle the defendant to their production for the gene- ral purposes of the suit. Howcutt v. Rees, 2 Grant, 553. 40— Pro interesse suo — Receiver — Claimants to sequestered property. Where, after the appointment of a receiver, or the issuing of a se- questration, a question with persons not parties to the suit arises on an interlocutory application as to the right to property claimed by the receiver or sequestrator, the Court may either dispose of the mat- ter at once upon the affidavits filed, or if the matter is not ripe for decision, the Court directs such proceedings to be had as appear on the whole best fitted for the determination of the question of right. Prentis v. Brennan, 2 Grant, 582. An order referring it to tho master to inquire whether a claimant has any, and what, right to property sequestered, is an order which it is quite competent for the Court, if it chooses, to make. Ih, 3i 4^0 EQUITY DIGEST. h 'i But where an order was drawn up in that form without reference to the Court, the Court, on the application of the claimants, directed the order to be modified by adding a direction that the claimants should be examined pro inlcresse suo before the master. lb. Note. Examinations pro interresse svo are now abolished by order. 41 — Mortgage — Banhriqit. Where a mortgagee had become bankrupt, and he, together with his assignees, had filed a bill to foreclose the mortgage, a final order of foreclosure was granted, althougli one of the assignees, on account of his absence, had not executed the power of attorney to receive the mortgage money, or made affidavit of non-payment. Lyman v. Kirk- patrick, 2 Grant, G25. 42 — Decree under 2>7th order May 1850. Where an absolute decree was pronounced under the 37th order of May 1850, and the plaintiff, through inadvortancc, served the defen- dant with an office copy of the bill and a notice in the terms of the 40th of those orders, the defendant applied to answer the bill and set aside the decree; and it appeared by the affidavits filed in support of the application that the intended defence was a hard one and slrklk' simijure, the Court refused the application. Dixon v. Mills, 2 Grant, 647. 43 — Absent defendant's act — licsUlence. A visit of two month's duration in Upper Canada is such a resid- ence as brings the defendant within the provisions of the abi?ent defendant's act, 14 and 15 Victoria, c. 10. Doremus v. Kennedy, 2 Grant, G57. 44 — Witness refusing to be examined. Where a person who had given evidence in an action at law be- tween substantially the same persons as were the parties to this suit, was afterwards committed to the provincial penitentiary, refused to be examined in this cause, the Court ordered the witnesses's evidence given at nisi prius, before the judge who had tried the iiclion at law to be read. SwUzer v. Boullon, 2 Grant, C93. 45 — Opening publicdt ion. Where a defendant had applied to open publication, and an order was made for that purpose on payment of costs, it was subsequently discovered that the plaintiff had proceeded to set the cause dov" for hearing without taking out the rules to produce and pass pub. oa- Tfil EQUITY DIGEST. 451 tion ; and the defendant thereupon moved to strike the cause out of the paper of causes for hearing ; the motion was refused with costs. Hamillon v. Street, 3 Grant, 122. 46 — Passing and cntcrlnrj decrees. In January 1841 an original decree of foreclosure had been made, in pursuance thereof the master made his report, and in May of the same year the cause was set down for hearing on further directions, but the decree then pronounced was not drawn up or any entry made thereof. A motion made to allow the plaintiff to draw up and enter nunc pro tunc the decree on further directions, from minutes alleged lo have been prepared by the registrar, was refused, Drnmmond i\ An- derson, 3 Grant, 150. It is essentially requisite to the perfect completion of a decree that it should be passed and entered, lb, 47 — ^cxt of kin. Where the plaintiff, suing on behalf of himself and the other next of kin of an intestate, alleges in his bill, but does not prove, that the next of kin arc too numerous to be made parties by name, the Court will either allow the cause to stand over, or will direct an enquiry by the master as to the next of kin. Musselman v. Snider, 3 Grant, 158. 48 — Spec ijlc pc rforraa nee — C'o.s/.s'. In decrees for specific performance of a contract for purchase, a time lor payment of the purchase money should be limited, or, in default, the bill dismissed. McDtmald v. Elder, 3 Grant, 244. In such cases also, the decree should direct a set off between the unpaid purchase money and the costs, lb. 49 — Reference. The plaintiff has, prima facie, a right to have the reference directed to the master resident in the county wherein the bill is filed. Macara ». Gwynne, 3 Grant, 310. 50 — Exceptions — Appeal from n taster. Under the order of th|g Court abolishing exceptions to the mas- ter's report, the appellant occupies the same position as under the old practice he would liavc done bclorc the master on bringing in objections, and, with that single restriction, the whole case is open to him on the appeal. Davidson v. TliirkeU, 3 Grant, 330, f ^ ' • . 1 :i 452 EQUITY DIGEST. |! W '3 ^ 51 — Partners. It is contrary to the ordinary course to charge partners with what, but for their wilful default, they would have received, lb. .52 — Foreclosure. When the day appointed by the master's report, for payment of money found due by the report, fell upon a Sunday, the Court re- fused to make a final order of (brcclosure. Ho/comb v. Leach, 3 Grant, 449. 53 — Traversing note. A plaintiff having proceeded in the cause by filing; a traversing note as directed by the thirty-second order of May, 1 850, afterwards moved ex parte to remove the traversing noto fi'om the files of the Court, and to allow the plaintiff to proceed upon a notice of motion to take the bill ^ro confesso, which had in the meantime been served; the motion was refused. Tylee v. Bartchart, 3 Grant, 449. 54 — Notice of motion for Good Friday. Where a notice of motion had been given for Good Friday, the -Court refused to entertain the motion at the next sitting. Fitzgerald V. Phillips, 3 Grant, 535. 55 — Injunction. On a motion to commit for breach of an injunction, it is not nec- essary that the affidavits should state that the writ was under the seal of the Court. Fareicell v. Wallbridge, 3 Grant, 628. oQ— Order 48. The practice directed to be pursued by the 48th Order of May, 1850, does not apply when the cause has been summarily referred under the 77th order. WtUbanks v. Fezan, 3 Grant, 643. 57 — Just allowances. Under the head of " just allowances," the master may, on taking the account of subsequent interest, and taxing subsequent costs on a first or subsequent foreclosure^ allow a sum paid for insurance, since the last foreclosure and interest, under a provision in the mort- gage, although the decree simply directed him on each successive foreclosure to compute subsequent interest and tax subsequent costs, Bethune v. Calcvtt, 3 Grant, 648. 58 — Dismissimj hill. In moving to dismiss for want of prosecution, it is not sufficient for the certificate of the registrar to state only that no replication has III m ' r M.a EQUITY DIGEST. 453 been filed ; it must also state that no further proceedings have been had, and it must Le shewn when the office copy of the answer was served. Thompson v. Buchanan, 3 Grant, 652; go — Committing for contcraitt. Where a party neglects to comply w ith the terms of an order for the production of books and paper.", the proper mode of proceeding is to serve a notice of motion to commit. Palerson v. Bowes, 4 Grant, 44. 61 — De Lunatico. The Judge in chambers granted an application for a commission de lunatico inquirendo, the orders of Juno, 1853, giving to the judge in chambers, authority to act in such a matter. Re Stxtarl, 4 Grant, 44. 62 — Chambers. The Court held that whatever applications can under the new or- ders be made in chambers, must be so made. Mfljfatl v. Riddell, 4 Grant, 44. The Court refused to hear otherwise than in chambers, a motion to enlarge the time appointed for payment of mortgage money, and on the motion being renewed in chambers on an affidavit of the de- fendants' solicitor, stating his belief that the defendants had exerted themselves, and were still endeavouring to raise the money, and that the property was worth much more than the debt ; the motion was refused with costs. Anonymous, 4 Grant, 61. QZ— Orders. By section 7 of order 46, (Orders of 1853) subpoenas for costs are abolished, This order (by order of June 6th,) took effect from 6th Jane as to all suits as well those then pending, as those subsequently instituted. The effect of tMs order, upon orders giving costs, issued previously to the time it took effect, is that an ordei must be obtain- ed fixing a day for payment of the costs when taxed. Saul v. Cooper, 4 Grant, 61. Order 36. The Chancellor, in answer to a question from Mr. Strong', counsel for the purchaser of the property sold under the decree made in this cause, stated that the signed contract, and other papers mentioned in section 9 of the thirty-sixth of the general orders, must in order to a confirmation of the sale be filed with the registrar, whether the I" i--: '^^ if' 454 EQUITY DIGEST. Bale has been conducted before a judge in chambers or the master of | the Court. Patterson v. Stanton, 4 Qrant, 100. 64 — Reviving. Where a defendant to n suit dies, and the plaintiff desires to amend by Tray of revivor, pursuant to section 15 of the ninth general order, the Court intimated that the proper mode of proceeding was to serve notice of motion to amend upon the person intended to be brought before the Court by the amendment. Goodece v. Manners, 4 Grant, 101. 65 — OrcUr to dismiss. When a cause has been set down for hearing, the plaintiff is not entitled as of course to an order dismissing his bill with leave to file another. Gardner v. Brennan, 4 Grant, 109. 66 — Counti/ Court — Injunction. A defendant in moving to dissolve an injunction, issued from a County Court, is not bound to have the proceedings returned to the registrar from the County Court Office. Abraham v. Shepherd, 4 Grant, 260. Where a plaintiff in an injunclion suit instituted in the Count; Court desires to extend the injunction, it is his duty to have the pleadings and papers in the cause transmitted to this Court before the motion is heard. Stevenson v. Huffman, 4 Grant, 318. A notice of motion given for a duty which is not a regular Court day, unless leave of the Court be obtained for that purpose, is a void proceeding, and the party served need not attend thereon, lb. 67 — A hsconding defendant. In moving to take a bill pro confesso, against an absconding defen- dant, who had been advertised as such, it is necessary to shew by affidavit that the defendant cannot be found to be served with notice of the motion. Gilmour v. Matthews, 4 Grant, 376. 68 — Purchaser — Rc-saks. When a purchaser neglects to pay in his purchase money, and no objection is made to the title, the Court will order him within a lim- ited time to pay in the amount with interest, or in default direct a re-sale of the property, and that the purchaser pay costs of motions and deficiency, if any, on such rc-sa!c, Crooks r. Crooks, 4 Grant, 376. EQUITY DIGEST. 455 or the master of QQ— Mistake in decree. A decree of foreclosure being erroneous, the Court refused to pro- nounce a final order of foreclosure, or default of payment. Commer- cial Bank v. Graham, 4 Qrant, 419, 'JO— Amending. Where a plaintiff desired to amend by adding a judgment creditor who had assigned his claim to the plaintiff as a party defendant, leave was given for that purpose, dispensing ^ith service on the defendant already before the Court. Boomer v, Gibson, 4 Grant, 430. 71 — Instalments. After a payment of what is payable upon a mortgage, payable by instalments, pursuant to the orders of 1853, it is irregular to take any further proceedings in the cause, until another instalment falls due. Carroll v. Hopkins, 4 Grant, 431. 72 — Perpetuating testintuny. The Court ordered a commission for the examination of an aged witness to issue, without requiring the bill to be served in the first instance ; the object of the suit being to perpetuate testimony, and it having been sworn that there was danger of the testimony of the witness being lost, but directed notice of the execution of the com- mission to be served on the defendants. Html v. Prentiss, 4 Grant, 487. 73 — Reviving against infants. When it becomes necessary to revive by way of amendment against infant defendants, the proper course is to amend simply in the first instance by making the infant defendants parties. After that has been done, if the infant fail to have a guardian appointed, the plaintiff may apply under order XIII to have a solicitor appointed guard- ian, and in either case the plaintiff will be in a position to move that the suit do stand revived. Kirkpalrick v. Fouquette, 4 Grant, 549. 74 — Reference to inquire — Costs. Where a plaintiff in a suit for foreclosure or sale asks for a refer- ence to the master to inquire as to other incumbrances, he takes such reference at the peril of costs, if there are in reality no other incum- brances on the estate. Hamilton v. Hoicard, 4 Grant, 581. Burn' side V. Land, 4 Grant, 581. 75 — Execution of conveyance by infants. Where for the purpose of a suit it is necessary to obtain an order for the execution of a conveyance by infant representatives of a mort- 1 w »W)I r'^i I , r-J":i) 456 EQUITY DIGEST. gagee not parties to the cause, the proper mode of applying is hy petition. Owen v. Campbell, hi Re Mills Infants, 4 Grant, 630. 76 — Married ivoman — Seixirate answer. A married woman had been served with an office copy bill as well as her husband, but no joint answer was put in, and an order was obtained, and served upon her, directing her to answer separately and apart from her husband ; no answer having been put in after the expiration of a month from the service of that order, a motion was made for an order pro conjesso against her. The Court refused to make the order, and directed a second office copy of the bill, together with an order to be served upon her, directing her to answer sep- arately from her husband within a time limited after service of that order. Miller v. Gordon, 5 Grant, 134. 77 — Proceedings at laiv — Electing. A defendant having allowed tlie plaintiff to proceed with bis suit in this Court as well as at law for the same object, afterwards applied for an order on the plaintiff to elect in which court he would proceed. The Court granted the order, but directed the defendant to pay so much of the costs at law as had been incurred after defendant be- came aware that the relief sought in both suits was the same, Aus- man r. Montgomery, 5 Grant, 1 75. 78 — Cause standing over. Where a cause was brought on to be heard at the suit of the attor- ney general for the repeal of a grant of land alleged to have been is- sued in mistake, and the evidence adduced did not sufficiently establish the mistake ; the Court directed the cause to stand over for the purpose of adducing further evidence. Attorney General v. Gar- butt, 5 Grant, 181. 79— Costs. Where the plaintiff in a redemption suit moves for a summary reference, and seeks to deprive the mortgagee of his costs, a case should be made for that relief upon the pleadings, and the question of costs should be included in the reference to the master. Lojig v. Gkm, 5 Grant, 208. 80 — Award — Order of Court. Where the case has been referred to arbitration, and an award made, such award must in all cases be made by an order of the Court, before any other ordbr in the cause can bo made. Wadsworth v, Mc' DoHgall, 5 Grant, 290. EQUITY DIGEST. 457 ipplying is hy }rant, 630. py bill as well an order was er separately it in after tbe a motion was irt refused to e bill, together to answer sep- service of that ith bis suit in wards applied fTould proceed, ant to pay so defendant be- e same, Aus- it of the attor- have been is- )t sufficiently stand over for eneralv. Gar- ir a summary a case should stion of costs ong V. Glenn, md an award of the Court, suforth V, Mc' 81 Wife — Mortgage on ivifes lands. Where a mortgage was created by husband and wife upon lands of the wife, and the mortgagee, together with the husband, joined in a conveyance of all their interest to a purchaser, the Court refused an immediate reference under the orders of 1853, and directed the cause to be brought to a hearing in the regular way. Wallis v. Burton, 5 Grant, 352. 82 — Varying decree — Re-hearing. Upon the argument of a petition for re-hearing, the party applying cannot ask the decree to be varied in any particular not objected to by the petition, and upon a second petition of re-hearing he is confin- ed to such parts of the decree as were objected to by the former peti- tion. McMnsier v. Campion, 5 Grant, 549. A defendant having, by his answer, set up several matters of defence which, through oversight, he had omitted to give evidence of, the Court, at the hearing, directed the causp to stand over, with libert to both parties to give evidence upon those pointrf. Northey v. Moore, 5 Grant, 609. 83 — Absconding defendant. A party having absconded from this province as alleged to avoid service of proceedings in this Court, and it being shewn upon affi- davit that within a few months he had been resident at several dif- ferent places, and it was impossible to say with any degree of certain- ty in which of them he could be served with process. The Court directed an advertisement to be inserted in a newspaper published at the place of residence of the party in this province and that a copy of the several papers containing the advertisement should be sent to his address at each of the places named. Stimson v. Stimson, 6 Grant, 379. 84 — Amendment. An application to amend at a late stage of the cause would not be granted if it appeared that such amendment would be attended with any risk of doing injustice, notwithstanding the practice established by order IX, s, 1*, of the orders of 1853. Ailchison v. Coombs, 6 Grant, 643. 85 — Appeal from master's report. The master's report is prima facie evidence of what it contains unless appealed from. No motion founded on such report can be en- tertained while the appeal is unheardt Nichols v, McDonald, 6 Grant, 594. 3k > < 458 teQtfitY DIGEST. S6—Co8ts. Where a person, who is made a party to a suit in the master's office, appears and disclaims, he is not entitled to any costs, as by remain- ing inactive the same end will be attained as by his disclaiming. HaU V. Park, 6 Grant, 553. 89 — Dismissing bill in foreclosure sitU When a bill is filed for the foreclosure ui u mortgage, payable by instalments, and the defendants move to dismiss on payment of the instalments and interest then due, the interest upon Mortgage money is only to be computed up to the day named fur payment in the mortgage, and not to the time of making the application. Slrach- an V. Murney, 6 Grant, 378. 88 — Insta hue n ts. Semble, that the relief given to a mortgagor by section 5 of the 32nd of the general orders of June 1853 in a suit brought against him upon a mortgage payable by instalments, would also be afforded him, or those claiming under him, upon a bill filed on their own be- half. Moore v. Merritt, G Grant, 550. ^9— Service of "pleadings by imrties to suit. The Court will permit service of pleadings to be effected by parties to the suit, and will allow the same fees upon taxation as if served by third persons. McClure v. Jones, G Grant, 383. 90 — Examination of witnesses. Since the passing of the orders of February, 1858, the Court will not direct the examination of witnesses to take place before an ex- aminer in a county where no resident master has been appointed, al- though consented to by the parties, Phelau v, Phelan, 6 Grant, 384. 91 — Service of bill on an attorney or solicitor. Where a solicitor accepts service of an office copy bill of complaint, and gives a written undertaking to answer the same, or in case of default, that an order pro conf'essn may be drawn up ; the usual two days' notice of motion for that purpose must be given, and may be served on the solicitor. Ros-i v, Hayes, G Grant, 277. Where service of an office copy bill is effected on the attomey-at- law of the defendant, a three weeks' notice of motion to take the bill pro confesso must be given, the notice may be served on the attor- ney. Webster v. O'Chster, 6 Grant, 278. ^■■;fP EQUITY DIGEST. 459 92 — Demufrer. A defendant appearing at the hearing, and waiving all objection to an order pro confesso, may shew that the bill is open to demurrer for want of equity. Greig v. Green, 6 Grant, 240. A demurrer having been held good on one ground, though overruled as to the other, the defendant was allowed to answer without costs. Paine v. Chapman, 6 Grant, 338. ^S— Exhibits. Documents used on the examination of witnesses before an exam- iner must be properly marked by that officer, and referred to in the evidence, otherwise they cannot be read at the hearing. HoJ/ywood r. IValers, G Grant, 329. 94 — Injunction. Since the general orders of 1853, it is not necessary for a party to establish his legal right by an action at law before coming to this Court. Rftdenhurst r. Coate, 6 Grant, 139. The Court upon default made by the defendants, in not appearing upon a notice of motion for inj'.^nction, directed the writ to issue, al- though at the same time entertaining great doubt whether a sufficient foundation for the interposition of the Court had been laid. Denni- son V. Ciiy of Toronto, 6 Grant, 513. 05 — Residence out of jurisdiction, chanr/ed to ivithin it. Prima facie, the plaintiff will be taken to reside where he describes himself in his bill as residing, but if he shews himself to have subse- quently become a resident within the jurisdiction, the objection on the ground of residence abroad ceases. Die. of Spragge, V. C. Hunter v. Monfjoy, 6 Grant, 433. % — Ope n i iKj p u hlication. The principle laid down by the Court in Waters v. Shade, 2 Orant, 218, in respect to opening publication, applies as well to suits for alimony as to other cases, McKnjf v. McKay, 6 Grant, 279. 97 — Pro confesso. Where after a bill has been ordered to bo taken pro confesso, but before any decree is drawn up, the defendant intervenes, and is a party to proceedings tt^kcn between the plaintiff and defendant, that is not such a case as is contemplated by section 7 of the thirteenth of the orders of 1853, where all further proceedings in the cause, may be taken er parte, Strachan v. Murney, 6 Grant, 284, 460 EQUITY DIGEST. '^!. I' ■'i">i E-:'V 08 — Injunction. A bill for the purpose of restraining proceeding at law to enforce a judgment having been dismissed, the Court continued the interim injunctioD vrhich had been obtained during the progress of the cause, until the decision of the Court of Appeal could be obtained, upon paying into Court the amount of the judgment, or giving security to the satisfaction of the defendants for payment of the money. Cot Inn ?). Corby, 7 Grant, 50. OG — Examination viva voce. A defendant may be ezamintsd inva voce in support of a motion, notice of which has been given, although the time for answering has not elapsed. McC/ennaghan v, Buchancn, 7 Grant, 92. 100 — Order for payment into Court. An interlocutory order for payment into Court, will be made only where, upon all the evidence before it, the Court is satisfied at the hearing a decree must inevitably be made in favour of the party mov- ing, lb, 101 — Setting aside foreclosure. A decree of foreclosure absolute, drawn up and entered, set aside at the instance of a purchaser of the equity of redemption, whose in- terest was acquired after the institution ot the suit to foreclose, but without notice of it. UilUard v. Campbell, 7 Grant, 96. 102 — Question a.s to plaintiff's right to institute proceedings. Where, in the course of a cause, a question is raised whether the plaintiff is entitled to institute proceedings, the Court will in a prop- er case decide that question without compelling the parties to pro- ceed to a hearing. Light v. The Woodstock and Lake Erie liuil way and Harhovr Company, 7 Grant, 172. 103 — Security for costs — Where refused. The plaintiff, a British Subject, having gone to reside in the United States, where he had remained for several years, but had never taken any oath of naturalization, or exercised the right of citizenship in that country returned to this Province, and some months afterwards filed a bill in this Court ; a motion for security for costs was refused, al- though several persons swore that his intention was to leave imme- diately on the decision of the case, the plaintiff having sworn that his intention was to remain in the country. O'Grady v. Munro, 7 Grant, 106. 'f^ EQUITY DIGEST. 461 r to enforce a the interim I of the cause, >tained, upon ring security the money. t of a motion, Dswering has be made only isfied at the he party mov- sred, set aside ion, whose in- foreclose, but oroceedinrjs. whether the n\\ in a prop- irties to pro- Erie litil in the United 1 never taken nship in that crwards filed s refused, al- Icavo immc- worn that his V, Mimro, 7 104 — Receiver. The receiver in a cause distrained for rent ; on the following day notice was given by a prior incumbrancer that he claimed the rent, and three days afterwards the bailiff was withdrawn. The tenant whose goods had been distrained thereupon instituted proceedings in an action of trespass against the receiver. The Court under the cir- cumstances restrained the action. Simpson u. Hutchinson, 7 Grant, 308. 105 — Declaration of rlrjiit. Semhle. That under the general orders, a party seeking to have a declaration of right, and who is not entitled to relief beyond such declaration, must file a bill for that only. Maclem v, Cummings, 7 Grant, 3 1 8. 106 — Motion for decree, setting clown. Motions for decree may be set down at any time before the Court enters on the paper. Clarke r. Hall, 7 Grant, 339. 107 — Ordering money into court. Where a bill was filed to compel a railway company to carry out a contract entered into by their agent, for constructing a road, and the evidence taken in the cause shewed that at the prices agreed upon, which the company insisted were most exorbitant, a balance of £12,500 was due the contractor, the Court at tho hearing ordered that amount into Court, without waiting for the master's report. Witehead v. The Buffalo and Lake Huron Railway Company, 7 Grant, 351. 108 — Striking out cause. A cause was set down for the examination of witnesses and when called on the plaintiff was not prepared to proceed. Held, [over- ruling the decision in Wallace v. McKay, reported in Chambers Reports, page 67.] that the defendant was entitled to have the cause struck out of the paper with tho costs of the day. Cohourg and Peterborough Railway Company v. Covert, 7 Grant, 411. 109 — Foreclosing where sale failed. Where, at the hearing of a cause, a sale instead of foreclosure was asked for, and was directed by the decree, which omitted however to provide that in the event of the sale failing the defendant should stand foreclosed. The Court, upon petition setting forth the facts, and that the attempt at sale which had boon made had proved abor- tive, ordered the defendant to pay the amount which had been found due, within one month, or in defauU, foreclosure. Goodall v. Bur- roios. Hendcison v. Richmond, 7 Grant, 449. i <4 m .;! •■ '■1 t'- ■ ! ?i'i,f ': ^^l ■ i 462 EQUITY DIGEST. 110 — Day for payment Where portions of an estate under mortgage are '^onveyed away by the mortgagor, one day for payment of the amount will be given to all the persons interested in the equity of redemption. Hill v. For- syth, 7 Grant, 461. Ill — Petition — Subject fiiatter of a bill will not be decided on petition. A plaintiff having obtained a decree in this Court for payment of money, registered the same pursuant to the statute 20. Vio , ch. 56, and applied on petition for an order to sell the lands affected by Buch registration. By the same petition he impeached a sale of the same lands made by the defendant to his mother, before the registration of the decree, and sought to have the sale declared fraudulent and void as against him, but the Court though strongly impressed with the mala fides of the transaction, thought the question raised should be best decided in a suit to be brought to test the validity of the con> veyance by the son. Fish v, Carnegie, 7 Grant, 479, 112 — Motion for decree cannot be abandoned on usual terms. A notice of motion for a decree is not to be treated as an ordinary motion in the course of a cause which the plaintiff ia at liberty to abandon on the usual terms McLaughlin v. Whilesides, 7 Grant, 515. 1 1 3 — Mot io nfor dec i rx , ab< tndo n ing. The plaintiff having given a notice of motion for a decree, cannot, without leave, abandon that mode of hearing the cause, and proceed to a hearing in the ordinary way. 1/k 114 — Adfliwj party in master's ofjice. One of several partners being out oi' the jurisdiction, and alleged by the bill to be insolvent, a decree to take the accounts and wind up the affairs of the partnership was made in his absence ; and be, after the decree had been carried into the master's office, returned to this Province, and was, by order of the master, made a party defend- ant in his office. From this order the defendant so added appealed. Held, that under the 42nd of the general orders, 1853, section 15, the master had authority to add such party in his office, and the ap- peal was dismissed with costs. Pallerson v. Holland. 7 Grant, 563. EQUITY DIGEST. 463 tiveyed awayb; 7ill be given to . Hill V. For^ lot be decided for payment of 0. Vio , ch. 56, iffected by such sale of the same registration of clulent and void ressed with the 'aised should be lity of the con- I, ed 0)1, usual as an ordinary 3 at liberty to asides, 7 Grant, decree, cannot, , and proceed )n, and alleged ints and wind iscnce ; and he, ce, returned to a party defend- ddcd appealed. 53, section 15, M, and the ap- 7 Grant, 5G3. 115— Order for paying money into Court. Held, per curiam, that an order for payment of money into Court, pending a reference to the master to take accounts, &c , is an order upon which the Court will stay proceedings, upon the perfecting the security, in the event of the order being appealed from. [Blake, V. C, dissenting.] Whitehead v. The Buffalo ^ Lake Huron Co. 7 Grant, 578. 116 Counsel appearing for parties not before the Court. On a motion for injunction an objection was taken that certain necessary parties were not before the Court, but counsel appearing for the absent parties, and consenting to their being made parties to be bound by the proceedings, and treated as if actually defendants on record, Held, that this cured the defect for the purposes of the motion. Attorney General v. The municipality of Grey, 7 Grant, 592. 117 — Absence of venue in bill no cause of demurrer. The absence of a venue in the margin of a bill is not a cause of demurrer; nor is a description of the premises which omits the township or county. Duncan v. Geary, 10 Grant, 34. 118 — Absence of venue an irregularity. (1) Semhle, that no venue being stated in the margin of the bill is an irregularity, and may be taken advantage of by motion to compel the insertion of a venue, lb. Lands improperly sold. (2) This Court will, in a proper case, set aside a deed of lands improperly sold by the sheriff under common law process, and will not leave a party to his remedy at law alone. Campbell v. Smith, 10 Grant, 206. 119 — Married uvmen — Separate a )isii'ers. Until the time for answering has expired, the plaintiff is not at liberty to sue out an order for a married woman defendant to answer separately from her husband ; and, in such a case, if the wife put in an answer jointly with her husband it is binding upon her, whether the suit be in respect of the wife's separate estate or not. Clarke v. McElroy, 10 Grant, 210. See also Elliott v. Hunter, 1 Cham. Rep., 158. 210 — Husband and wife — Joint answer. Where husband and wife had jointly answered and demurred to a bill, which demurrer was overruled, and the order drawn up al- /'I "4 I) ! i I ft. !l 464 EQUITY DIGEST. lowing tho same extended the time for the husband to put in hit answer, but was silent as to the answer of the wife or the joint answer of husband and wife, held^ notwithstanding, that under such order the husband and wife were at liberty to put in a joint answer. lb. 121 — Simple correction in report luithout reference back. Where the correction to be made in the master's finding is simple, a reference back to him for that purpose need not be directed, the necessary alteration can be made by the order drawn up upon the ap- peal. Teeter V. St. John, 10 Grant, 85. 122 — Demurrer to amended bill. Where a bill has been amended, although usual, it is not absolutely necessary that a demurrer should be addressed " to the amended bill." Ferguson v. Kitty, 10 Grant, 103. 123 — Costa of unnecessary attendance of witnesses. Where parties to a cause had produced and examined their wit- nesses at Toronto, all of whom resided a distance therefrom and in close proximity to one of the circuit towns, the Court, while award- ing the general costs of the cause to the defendant refused him the costs of the attendance of his witnesses. Ledyard v. MrLean, 10 Grant, 139. After judgment had been given in a cause, an application was made to open publication on the ground that since the decree had been pronounced, it was discovered that a material witness in the cause was beneficially interested in the setting aside the will, which it was the object of the suit to have declared void, and had entered into an agreement to indemnify the plaintiff from the costs ; but as the result would have been the same had that witness' testimony been out of the case, the Court refused the motion, but offered the defendant who applied liberty to give evidence to establish the fact of interest in the witness, in order that in the event of the cause going to ap- peal, his evidence should not appear there as that of an unbiased witness. Walcrhouse v. Lee, 10 Grant, 176. 124 — Trustee—Costs. A trustee of lands for payi->ent i,r debts, paid the debts without exercising the power of sale for that purpose, and took a release from the cestui que trust to himself, which release was held void, and an account directed. Under the circumstances, neither fraud nor ne- glect to account haying been established against the trustee, who had EQUITY DIGEST. 465 accounted as such^in the master's office, and the property or the pro- claoe thereof being forthcoming for the benefit of the estate ; the Gonit directed the trustee to receive his subsequent costs, as in or- dinary cases as between solicitor and client. Hope v. Beard, 10 Grant, 212. 125 — Appealing from masters report. An appeal from the master's report, after it has been absolutely confirmed by lapse of time, will not be entertained without leave first given on special application. Thompson i\ Luke, 10 Grant, 281, Parties who have no further interest in the matter to which the master's report relates, cannot appeal from it. lb. 12Q— Relief without costs. Where the only defence set up by the defendant failed, and the ground on which the Court decided against the plaintiff was not taken, or even pointed to in any manner by the answer, the Court, though it dismissed the bill, refused the defendant his costs of the suit. McAnnany v. Turnbul/, 10 Grant, 298. 127— Order XLII. The XLII of the general orders (s. 13) applies to all cases were accounts are directed to be taken before the master. Carpenter v. Wood, 10 Grant, 354. 128— Cos^s. Where a cause was set down to be heard on further directions, for the purpose of having remedied a defect in the master's report, the Court, though it made the order asked, refused the plaintiff costs other than those of a motion in chambers, the order being such as might have been obtained on motion there. King v. Conner, 10 Grant, 364. 129 — Relief afforded, but without costs. Where a bill was filed to set aside a conveyance as having been made to hinder creditors on grounds which the plaintiff failed to sub- stantiate, but the evidence of the grantee himself shewed that on other grounds the plaintiff was entitled to relief at the hearing, leave was given him to amend setting forth such ground, and a decree was made in his favor, but, under the circumstances, without costs. Wat' son V. McCarthy, 10 Grant, 416. IZO—Want of diligence. A, having a mortgage, filed a bill to foreclose against B, alleging that the mortgagor had died intestate leaving him his heir at law and 31. 466 EQUITY DIGEST. •Kr g r■^;■ m 10' ; ■t^;^ . entitled to the equity of redemption. After decree A discovered that the mortgagor had by will devised the mortgaged premises to C, and by petition sought to add him, and that he might be held bound by the past proceedings in the suit. Held, that the plaintiff had not exer- cised due diligence in framing his proceedings, and leave to add C by special order was refused. Porlman v. Paul, 10 Grant, 458. 131 — Masters rdport not adopted by Court. Where the costs of certain proceedings were allowed by the master against the estate of a deceased person not a party to the suit at any time, without shewing why they were so allowed, the Court, at the hearing, on further directions, notwithstanding the report had not been appealed from, refused to carry out that portion of the master's iind- ing, and directed the question to be spoken to and additional infor- mation furnished to the Court. Taylor v. Craven, 10 Grant, 488. 122— Rests. Where in taking an account upon a mortgage the master had taken the same against the mortgagee with rests, and on an appeal from the master's report it appeared that at the date of the mortgage a balance was due by the mortgagee to the mortgagor, and the mort- gagee went into possession of the property, part of the arrangement being that he should apply the rents, &c., to the paying off of two prior mortgages, but it was not shewn that they were due at the time of the moneys being received so that the holder of tiie incumbrances could have been compelled to accept payment, the Court, if desired by the mortgagee, ordered a reference back to the master to aHcertain this fact. Williams v. Haun, 10 Grant, 55.**. 133 — Masters report. Where a report was referred back to the master .-it the instance of the defendant, a mortgagee, to ascertain a particular fact, and the master, without being directed so to do, called upon the defendant for an affidavit shewing what moneys he had received, &o., and the de- fendant filed his own affidavit shewing that the moneys with which he was chargeable had been received by him at dates subsequent to what the master had previously found by his report, and which he varied accordingly. Hcldy on appeal, that the master was wrong in thus proceeding, and the report was sent back to be reviewed in this respect. lb. 134 — ^Where it appears by the will of a testator that the legacies left by it were payable with interest and the order in which they were payable, it is not necessary for the master to state those facts in EQUITY DIGEST. 467 rill'-' oflF of two his report, but he should state whether any payments have been made on account of them. Chnsler v. McLean, 10 Grant, 576. 135 — Where in a suit against executors a decree was made referring it to the master to administer the estate, the master is not required to take any account of such portions of the estate as arc left to trustees to be administered. Ih. 13(j — Exaridnation of defendant. Where the plaintiff examines several defendants before answer, the examination of the one cannot be read against the other defendants at the hearing of the cause. Douglass v. Ward, 11 Grant, 39. 137 — Motion standUifj over not abandoned motion. Where a motion stands over and afterwards the party moving gives notice of abandoning the application, the costs which are given against him are not those of an abandoned motion but of a motion refused. Dennison v. Devlin, 11 Grant, 84. 138 — Notice for a day not «. court day. Where an injunction is granted to a particular day which is not a motion day, and the writ is served, together with a notice of motion for that day to extend the injunction, the notice is not irregular, though it omits to mention that such notice is given by leave of the Court. Johnson v. Cass, 11 Grant, 117. 139 — Qiuishuig commission of lunacy. This Court, in a proper case, will, upon petition, quash a commis- sion of lunacy and the inquisition taken under it, without putting the party to the expense and delay of a traverse, but in such a case where the alleged lunatic had so conducted himself as to afford grounds for the application being made against him, the Court, while quash- ing the inquisition which had been taken, refused to charge the party applying for the commission with costs. Re Milne, 11 Grant, 153. 140 — Dlsclaimlufj — Costs. A Creditor filed a bill to set aside a deed as fraudulent against credi- tors, and the grantee by his answer disclaimed and alleged that the deed was executed without his knowledge or consent, and that when he became aware of it he repudiated it. Held, that the grantee hav- ing been properly made a defendant was not entitled to his costs. SliuUlewortk v. Roberts, 11 Grant, 237. 141 — Preliminary reference. Where a bill was filed to obtain tho opinion of the Court as to the validity of certain bequests in a will, and the heirship of the defen- dant, who claimed to be heir and next of kin, was not admitted by ^JH- IMAGE EVALUATION TEST TARGET (MT-3) 1.0 E|KA Ui in 1^ g2.2 s; i£o 12.0 I.I l^iuu^ 6" £ Fhoiographi Sdmoes Carporation M. ic A*:.« as WKT MAIN STMIT VnBSTn,N.Y. I4SI0 (7U)l7a-4S03 ^4f ^ j- 468 EQUITY DIGEST. i S I *,r. the defendants who claimed the bequests, a preliminary reference was directed to the master to inquire who was heir and next of kin, and further directions and costs were reserved. Emsley v. Madden, 11 Grant, 232. \^t2.— Reference hack to master. Where both parties had proceeded on the assumption that the evi- dence before the master on taking the accounts under the decree would be before the Court on further directions, and had in conse- quence allowed mutual claims of interest and commission to be sub- mitted by the master to the Court, without his setting forth sufficient to enable the Court to dispose of them, and the report was, besides, so expressed as to render the defendants chargeable with sums for which it did not appear to have been intended to make them liable, the Court, on further directions, referred the case back to the master to review his report. Gould v. linrriU, 11 Grant, 234. mS— Petition or bill ? A, having an interest in improven.ents, for which in a suit between B, his vendor, and C, B obtained a decree. Held, that A could not by petition make himself a party to such suit, and that his remedy was by bill. • Slater v, Youhff, 1 1 Grant, 268. 144 — Costs. On the dismissal of n bill costs were taxed to the defendants and execution issued against the plaintiff, which was returned nulla bona Two of the defendants, as administrators, held moneys, part of which would on distribution belong to the plaintiff, and which they now applied for leave to set off against the taxed costs, under the circum- stances the motion was refused. Black r. Black, 11 Grant, 270. Liquidating costs. The Court being dissatisGcd with the mode in which the ar- gument was conducted, and tho brief of the pleadings had been pre- pared, though it allowed a demurrer to tho bill, liquidated the costs at $10 only. McFadgen v. Sletoart, 11 Grant, 272. 145 — Parties. Unless where the parties to be charged are too numerous to be made parties to the bill, or there is some other special reason, the 42nd of the general orders of 3id of June, 1853, is confined to cases where no direct relief is sought iigaiust the parties to be added, or where tho object is to bind their interests by the proceedings in a manner similar to what is provided for by the 6th of tho same orders. Rolj)h V. The Upper Canada Building Society, 11 Grant, 275. ; 'fi!? EQUITY DIGEST. 469 146 — Foreclosure suit In a foreclosure suit a question was raised as to whether the equity of redemption in the principal portion of the mortgaged premises was in the defendants against whom the bill had been taken pro conjesso, and who did not appear at the hearint.>; ; or in the other defendants, some of whom were infants. The Court refused to decide this ques- tion at the hearing, at the instance of tho defendants, who appeared. Robinson r. Dobson, 11 Grant, 357. 14:7— Infant parties — Reference as to sale or forecloaiire. Where a mortgagor had conveyed his equity of redemption to the trustees of his marriage settlement in trust for his wife for life, the remainder to his children, and a bill of foreclosure was filed after his death against the trustees and widow, to which bill, the children be- ing infants were not made parties, the Court granted a decree con- taining the usual reference to enquire whether a sale or foreclosure would be more beneficial to tho infants ; and gave liberty to the mas- ter to make the infants parties in his office, if he should see fit. Dickson v Draper, 1 1 Grant, 362. 1 48 — A tiu 1 idii ic uts. Amendments may be made at the hearing of causes under the new practice as at nisi prius. Fraser v. Rodney, 1 1 Grant, 426. U^— Costs. Where a bill prayed specific performance of an agreement, and for an injunction against waste, and an account of waste committed, and the Court was of opinion that tho plaintiff's remedy, except as to the injunction, was at law, the decree was made without costs; the objection to the jurisdiction appearing by the bill, and not being raised until the h'^aring of tho cause. Raven v. Lovelass, 1 1 Grants 435. 150 — Adding plaintiffs. Where new plaintiffs arc added by amendment, they have at the hearing the same rights, and the Court has the same discretion in the ease of a misjoinder as if they ha^^. been plaintiffs originally, and the Court may, under the general orders, treat such new plaintiffs as the sole plaintiffs. Mason v. Seney, 11 Grant, 447. m— Costs. Where a conveyance is set aside as void against creditors, a i?alc ordered, and costs up to the hearing given against tho defendants ; these costs should be paid by tho defendants immediately, where it is 470 EQUITY DIGEST. m ; manifest the property is not sufficient to pay the creditors in fall, Gillv. Tyrrtll, 11 Grant, 474. U^— Costs. A trustee who severed in his defence, because his co-trustee had re- fused to act in conjunction with Ma in the management of the estate, was under the circumstances, rerUsed his costs. Gibson v, Amis^ n Grant, 481. 153 — Clerical error. An application to correct a clerical error in a decree, or order, must as a general rule be made on notice. Radenhurst v. Reynolds, 11 Grant, 521. 154 — Evidence discovered after decree. The particulars stated that are necessary to be shewn in support of a petition to be allowed after the hearing of a cause to put in new- ly discovered evidence. Mason v. Setiey, 12 Grant, 143. 155 — Sale decree — Judgment creditors. According to the form of decree to enforce by sale the lien of a regis- tared judgment creditor, and the practice under it, as sanctioned by the judges, while the law for the registration of judgments was in force, the debtor had a day to redeem, and unless he made default, no inquiry as to other incumbrances was made ; but in case of default, and an order for sale thereon the master then inquired as to uther incumbrances, in order to the distribution of the proceec! under the decree. Crawford v. Binglc, 12 Grant, 450. 15G — Parties in masters oj^ce. — Unnecessary parties. On a motion for a final decree of foreclosure, it appeared that in proceeding under a decree, several persons were made defendants in the master's office, whom the Court thought were unnecessary par- ties to the taking of the accounts directed ; the motion was refused, and the costs caused by making such unnecessary parties were order* ed to be deducted from the plaintiff's bill ; the amount then appear- ing to be due, was ordered to be paid in two weeks, or in default foreclosure. (The Chancellor.) Rice v. Brook, 1 Cham. Kep., 71. 157 — Reviving. In a suit for sale of mortgaged property, an incumbrancer had proved a claim against the property, the plaintiff, (the mortgagee) who had been paid in full, having died, held, on an application by such subsequent incumbrancer for the usual order for redemption and mXStmt DIGEST. 471 creditors in fall. i co-trustee had re- tnent of the estate, Gibson V, AnnU, decree, or order, \urst V. Rf.ynoldt, shewn in support luse to put in new- it, 143. tho lien of a regis- , as sanctioned by udgmcnts was in made default, no n case of default, [][uired as to uther roceer! under the y parties. appeared that in idc defendants in unnecessary par- )tion was refused, artics were order- unt then appoar- lS, or in default Cham. Kcp., 71. cumbranecr had (tho mortgagee) an application by r redemption and foreclosure, after an abortive sale, that it was unnecessary to revive the suit. Coulson v. Sheehey, 1 Cham. Rep , 216. 158 — Cause set down by defendant. Where a defendant set down a cause for hearing, before the time limited by the orders of 1853 in that behalf, and the plaintiff moved to strike the cause out of the list of causes forbearing, for irregularity, the case was ordered to be struck out, with costs ; notwithstanding that by the delay on the part of the plaintiff's solicitor to give no. ticeof the irregularity, the defendant was unable to set the cause down again for the ensuing hearing term, although had the matter been res Integra, the application would have been refused. City of Toronto v. McGHl, 1 Cham. Rep., 16. 159 — Enlargement of motion. Where a party moving is not in a position to sustain his motion, the Court will not grant an enlargement so ns to enable him to place himself in a position to sustain it, the motion must lapse. Ruttan v. Smith, 1 Cham. Rep., 286, 160 — Appealable order — Costs. The right of appeal from chancery is confined to orders or decrees made in a cause pending between parties ; where, therefore, an ap- peal was made to this Court from an order directing the taxation of a dolicitor's bill against his client in a particular mode, the Court dismissed the appeal with costs. The respondent, although he may, is not bound in such a case to move at an earlier stag'e to quash the proceedings. Re Freeman Craigie v. Proudfoot, 2 E. & A. R., 109. 161 — Cross examination — Reading. On a motion for injunction the plaintiff claimed to read the cross examination of defendant on his answer. Held, he was not entitled to do so. Carter v. Dale, 1 Cooper's C, & P. R., 13. 162— Setting down cansj. A decree had been made herein for specific performance of a con- tract for the purchase of land by the purchaser, on a bill which had been taken pro con. Mr. Lmngston, for plaintiff, moved on further directions for an order rescinding the contract. The cause had been set down the day previous to be heard on further directions. The Chancellor was at first doubtful as to whether this was a sufficient setting down ; but, on taking time to look into the practice, decided 472 EQUITY DIGEST. s p • il m '^ Pi 1^ I III that it was perfectly set down, and granted the order. Cook v. Gin- grick, 1 Cooper, 0. &. P. R., 24. 163 — Parties — Bankrupt mortgagor — Imperial act 12 and, 13 Vic. cap. 106. A mortgagor who has made a mortgage on lands in this province, and who afterwards becomes a bankrupt in England, is not a neoeg- sary party to a bill to foreclose by force of the English .tatutea relat- ing to bankruptcy. Goodhue v. Whilmore, 7 U. C, L. J., 124. 164 — Injunction. " See Injunction." 165 — Administrator ad litem. The Court will not appoint an administrator ad Ulem of a deceas- ed party, where the party deceased had a substantial interest in the suit. Bank of Montreal v. Wallace, 1 Cham. Bep., 261. 166 — Attornment — Order nisi. The Court will not grant an order nisi against a person not a party to the suit ; where an order against su^^.h a person is required the proper practice to obatin it is by notice of motion or petition. Harris v. Meye:s, 1 Cham. Rep , 262. Ske the respective headings throughout the Volume appropriate to he question of practice involved. PREEMPTION. Right of. See Crown— Crown Lands— Crown Patent— Grant from THE Crown Patent. PREFERENCE. See Insolvent Act. Payment of. See Insurance. PREMIUMS. PRESBYTERIAN CHURCH Of Canada in connection with the Church of Scotland. In 1833 lands situate in Cobourg were conveyed to certain parties «nd "the Kirk Session of the Presbyterian Church of Canada in EQUITY DIGEST. 473 er. Cook v. Gin- rial act 12 and T— Grant from oonneotion with the Ohurob of Scotland, in Oobourg," upon trust for the use of that congregation, who erected a church thereon, and used and enjoyed the same until the disruption of the Presbyterian Church of Canada, in 1844, similar t that which had previously oc- cured in Scotland. In Canada, as there, the Presbyterian Church be- came divided into two churches ; one retaining its identity with the Presbyterian Church of Canada, in connection with the Church of Scot- land; the other forming anew church, called ''the Presbyterian Church of Canada," similar in principle to the Free Church of Scotland, and to which the congregation at Cobourg almost unanimously adhered, and they continued to use the same church as hitherto until 1857, there be- ing in the interval no congregation of the Presbyterian Church in Canada, in connection with the Church of Scotland. In this year, certain residents professing to belong to that church applied to the surviving trustees to have the trust estate devoted to the purposes intended by the donor, by allowing them the u.so thereof for the pur- pose of religious worship, which was refused. On an information and bill filed by the Attorney General and certain persons, so claim- ing to i>e entitled to the use of the said trust estate, the Court de- clared that the only persons entitled to the use of the said church were those in communion with the Church of Scotland, and the fact that there had ceased to be a " Kirk Session," at Cobourg was im- material. Held, also, that the congregation for the use of whom the trust had been originally created, having ceased to exist, any new congregation in connection with the Church of Scotland, which might be afterwards organized, were proper objects of the gift, and to be such it was not necessary that the present should be a continu- ation of any previously existing congregation. The AUorney Gene- ral v, Jefftry, 10 Grant, 273. H OF Scotland. PRESENTATION. See REOTORn&J--REOTORY. PRESUMPTION OP INNOCENCE. SxE Ancient Document. PRETENDED TITLE. Purchase of. , Where a solicitor of this Court purchased a widow's right of dower m all the lands of which her husband died seized during her cover- 3x !- ■ I J 11 i: M ■; 1 5' i: ii I }. 474 EQUITY DIGEST. ture, taking from her an assignment thereof, and a power of attorney to use her name in suing therefor ; six years after the death of her husband, and several years after the purchase so made by him, filed a bill in the name of the widow, for the purpose of having dower as- signed to her in a particular portion of her late husband's lands— not noticing the sale to himself ; the Court on the application of the widow, ordered the bill to be taken off the files, with costs to be paid by the solicitor. Meyers v. Lake. 1 Grant, 305. PRINCIPAL AND AGENT. Agent taking conveyance to himself, 1. " becoming partner, 10. Building society, (1). Costs, 11. " where bill dismiHseU without, 4, Death o( principal, 6 (2). Deed of em, 7. Issue at Taw, 3 Neglect, 11. Payment, 13. Part perfonnance, C (3). Power o( attorney, 6. Rests, 2. Sale by agent at undcrvalu \ 7. Specific perfonnance, 0. (3), 12, 13, Tenants In common, i>. 1 — Agent taking conveyance to himself, &c. A person resident abroad sent funds to an agent in this country for the purpose of investing in lands, the agent bought a parcel of land for £600, and took the conveyance in his own name, which prop- erty, the agent asserted to his principal, he bud paid £1000 for, and made a conveyance to his principal and charged him that sum in ac- count. Some years afterwards the principal discovered the true nature of the transaction and filed a bill in this Court for relief, the Court decreed him entitled to the land at the sum of £600, and directed a reference to the master to take an account of the dealings between the principal and agent. Artliurlon v. DalLy, 2 Grant, 1. 2— Bests. Where it appeared that an agent had received large sums of money for his principal, and had used it for many years in his own business instead of remitting it as he might and should have done to his prin- cipal, he was charged with six per cent, interest and annual rests, Laudman v Crooks, 4 Grant, 353. 3 — Issue at law. An assigment of certain property was made to the defendant as agent for the plaintiff, and the defendant refusing to account therefor the plaintiff filed a bill to compel him to account. The Court, with- out directing an issue, decreed an account with costs, although the defendant denied his agency and swore that a receipt produced by the plaintiff was a forgery ; and the evidence upon the point was con- flicting. Rosenberger v. Thomas, 4 Grant, 473. EQUITY DIGEST. 476 4 Where hill dismissed without costs. The managing shareholder and cashier of a joint stock company had been offered as a gift the share of one of his co-partners who de- sired to retire from the partnership, or, declining that, that he (the cashier) would permit his daughter to accept a transfer of the share in like manner, in which position the share stood when an application was made to the cashier by another member of the partnership, who was aware of these offers, to ascertain if the share could be obtained for a person desirous of entering into the company. It was stipulat- ed that the intended purchaser should have the share upon paying £300, which was comniunicated by telegraph to the brother of the intending purchaser by the person applying on his behalf, and the cashier, by the direction of the same party, drew for the amount, and also wrote to him informing him of the purchase, in doing which the cashier stated that he had secured the share for his brother, and that he had drawn upon him for the amount in order to enable him to settle with the holder, and the transaction was accordingly made. Afterwards the new partner discovered that the cashier had in fact paid the original holder of the share £75 only, in consequence of which differences arose between those parties, and it was de- termined that the new partner should retire from the partnership upon being paid the amount advanced by him, which was according- ly done. The retiring partner afterwards filed a bill against the cashier claiming the difference in the amounts, on the ground that in the matter of the purchase he had acted as his agent. The defen- dant, by his answer, positively denied all agency in the matter, and stated that he had inadvertently made use of the words " secured a share" instead of " sold a share," and the evidence in the cause was to the same effect. The Court dismissed the bill, but as the letter of the defendant tended to create a misapprehension of the facts, without costs, Anderson v. Cameron, 6 Grant, 285. 5~Poiver of attorney. D being about to leave this country for a time, executed a power of attorney in favor of an agent, thereby conferring very extensive power on the agent, amonst other things he was authorised, for the principal, and in his name, and to his use, " to buy any freehold lands, or any ships, vessels, or steamboats, or any shares therein, as the said John Bell Gordon may think expedient and for my benefit," Daring the absence of his principal, the agent purchased a leasehold property known as " The St. Nicholas Saloon," together with the famitare, provisions and business therein, for the payment of which m : 1 i'-"i i |i|y 476 EQUITY DIGEST. i r he gave his own promissory notes, endorsed by him in the name of his prinoipal, under a clause in the power of attorney authoriring him to make and endorse notes, &o., in the course of business, alleg- ing that ho had made the purchase for the joint benefit of himself, hii principal, and a third person who also endorsed these promissory notes, UeMy that this was a purchase which the agent was not entitled to make, and that, Htanding in the position of a surety in respect of the promissory notes, the principal was entitled to a decree for indemnitj in respect of his liability as endorser thereof against his agent and the subsequent endorser, without wniting to take an account of all the transactions between the parties. Dick v. Gnrdon, 6 Grant, 394, 6 — Building societies. (1) It is not necessary that the seal of a building society should be affixed to an authority to its agent to sell, the entry in the books of the society is sufficient for that purpose. Osborne v. The Farmtri and Mechanics^ Building Society, 5 Grant, 326. Death of principal. (2) By the death of the principal the authority of an agent is determined. Whore, therefore, an agent obtained on credit, from parties with whom his principal had been in negotiation previoasly, a supply of furniture for the house of the principal in which he had intended carrying on business ; but before any binding agreement was concluded, or the furniture delivered, the principal had died abroad, the Court refused to decree a specific performance of the con- tract to purchase, and ordered the administrators, who had taken possession of the goods, to deliver them to the vendors, and pay costs of the suit instituted for the purpose of obtaining possession of tbe furniture, or security for the price of it. Jacques r, Worthinglmi^ 7 Grant. 192. Specific i,erforniancc — Part performance. (3) Upon a bill filed by an infant claiming a conveyance from the defendant on the ground of his having acted as agent for the ancestor in obtaining the title, the evidence tended to establish the fact that ihe property had been purchased by the defendant for his son, and received payments from him with the understanding that he should obtain a deed when the payments were completed. The Court, at the hearing, offered tbe plaintiff an i.ssue as to the question of agency, or leave to amend the bill, upon payment of the costs of the day and the proceedings that would thus be rendered useless, and if this was refused, ordered that tho bill should be dismissed without costs, the EQUITY DIGEST. 477 defendant's answer having been falsified. Jackson v. Jackson, 7 Qiant, 114. 'J— Deed of gift — Sale by agent at an under-value. A widow having a claim to certain lands belonging to the Six Na- tions Indians, prevailed upon a person to act as agent in procuring the acknowledgement by the chiefs of her title, which was done after great trouble and expense on the part of the agent, and in accordance with such recognition the crown patent for the land was perfected ; whereupon the grantee of the crown conveyed, by deed of gift to the agent, an undivided moiety of the estate as a reward for his services in procuring the grant, previously to which she had executed a pow- er of attorney in favor of the agent, authorizing him to sell or mort- gage all her lands in Upper Canada, and subsequently went to England, where she continued to reside until the time of her death. During, her residence there uhe urged the agent to dispose of her moiety of the property, and in the course of the corresponuonce stat- ed she would be willing to take £1.000 for it. The agent, in 1844, having directed the property to be sold by auction, his sister became the purchaser for £628, having authorized the person who attended to bid at the sale on her behalf, to go as high as £800 for the prop- erty. Upon a bill filed by the son and heir of the owner, in 1858, wveral years after the agent's death, seeking to set aside the deed of gift, as having been obtained by undue infiucnce, and the sale by auction as having been made at a gross under-value, the Court re- fused to disturb the title derived under the deed of gift, but set aside the sale by auction as having been made at a price not warrant- ed by the agent's authority. The infancy of the plaintiff at the death of his mother, and his absence subsequently on duty with his reg- iment being deemed sufficient circumstances to excuse the delay which had occured in instituting proceedings by him ; and it was shewn that a suit instituted by his mother during her residence in England had been dismissed, owing to her inability to procure security for costs to be given. Kerr v. Lafferlij, 7 Grant, 412. 8 — Semble. That an act done by an agent within the scope of his authority, and before any notification of its revocation is good ; al- though it may be entirely revoked at the time. lb. 9 — Teimnt in common. A power of attorney was prepared and executed by two of four ten- ants in common, appointing an agent to receive the rents and profits of the estate, and was tranBmitt«d to the agent, who had undertaken ,r.fi. 71— FTT- l;l n -n ■|lli i ■ii! i: 'I 478 EQUITY DIGEST. to procure its execution by the other owners. In fact the pow«t never was executed by the other proprietors, and the agent, vm than a year afterwards, declined to act in the matter, alleging tbit i the execution of the power by all the owners was necessary to enable him to receive the ronis. The Court however held him liable for | the rents and profits received, or which, but for his wilful default might have been received by him from the time of the power beiog I sent to him until his repudiation of the character of agent. Brai. \ bnme v. Shanly, 7 Grant, 569 . 10 — Where agency had ceased by principal and agerd becoming partners. A person became surety for another for the due discharge of hisdotj as agent in the purchase of wheat for a mercantile firm, afterwardi the agent and his principals entered into an agreement for partner ship, and during the continuance thereof he became indebted to hit | co-partners in the sum of £750, and the surety having been called on, executed a confession of judgment for the amount of his prinoi- pal's indebtedness, in ignorance, as he alleged, of the fact that the agency had ceased, and a partnership been formed. Upon a bill filed I to enforce the judgment against the surety, the Court directed a Rf> erence to ascertain what, if any, portion of the debt for which the | cognovit was given arose in respect of dealings during the agency, reserving further directions and costs ; or if the plaintiff should de- cline this reference, then that the bill should be dismissed with costs. Gooderham v. Bank of Upper Canada, 9 Grant, 39. 1 1 — Neglect — Costs. An agent had not answered for some months urgent letters received from his principal in England, the principal thereupon, be- ing alarmed, employed solicitors here to see to bis interests in the matter, but the agent though repeatedly applied to by such solicitors during nearly three weeks, gave the solicitors no information or even an interview, and they consequently filed a bill for an account and injunction ; held, that the defendant, by reason of his neglect, must pay the costs up to the hearing, though the Court was satisfied his neglect did not proceed from any dishonesty on his part, or any in- tention of withholding information from his principal, Douglass v. Woodside, 11 Grant, 375. 12 — Specific Performance. The owner of land in January, 1864, wrote to an agent, requesting him to find "a purchaser" for it, at $600 cash or $800 on a certain i E EQUITY DIGEST. 479 icipal and ageni I apeoified credit. Nothing was done on this letter, and in Deoember, l865, the property in the meantime having greatly risen in value, I and the owner having received an offer for the timber on the land. wrote to the same agent, informing him thereof, asking his opinion I as to what ''he" (the owner) should take for the lot altogether. In Febraary, 186G, the agent, without further communication with the I owner, contracted, in writing, to sell the property for $600, <* to be paid on the execution of a good and full wurranty deed, clear of all incttmbranoes." On a bill filed for the specific performance by the I purchaser against the owner, the Court considering that the letter of December. 1865, was a revocation ol «uy authority contained in the letter of January, 1854, to sell the premises, refused to enforce the contract; and whether the letter of January, 1864, conferred upon the agent power to sell : qucBre, but if that letter did empower the the agent to sell, he had not any authority for agreeing to give a deed such as that stipulated for. Anderso,, o. McBean,12 Grant, 463. IZ—Payraent — Specific performance. A authorized his agent to sell his estate for £500 cash, and the [agent instead of receiving cash accepted bills from the vendee, drawn Ion his, the vendee's agent in Europe, which bills the agent applied to IhiB own use, transmitting them to his correspondents to whom he I was largely indelited. and who placed the proceeds when honor- led to bis credit, Held, reversing the decision of his honor, the Vice IChanoellor. that A was not bound by such acts of his agent ; that ■this was not a payment to A ; and until he received the amount of [the purchase money in cash, he was not bound to execute a deed of Ithe premises. Brown v. Smart, 1 E. & A. B., 148. See Specific Performance — Vendor and Purchaser. PRINCIPAL AND INTEREST. See Receiver. PRINCIPAL AND SURETY. Accommodation endorser, 27. Account, surety entitled to, 14. Acceptor and drawer, 13. Appropriation of payment, 6. Aaaignment of judgmenl., 20. PoUateral security, surety holding, 12, 26. ""omposition, 13, 22. iitor?not bound to inform surety of principal's debts, 17. 18, construction of, 2. )faultiny treasurer, 9, Discharged from liability when surety, 1. Indorser, 4, 6, 7, 8. Budpmnt creditor, 6. Laches, party liable, bound by, from settings up defence, 15. Marshalling securities, 5. Mortgagor, mortgagee, 26. Notice to surety, want of, 19. Parties, 23, 24, 25. Paying after arrangement by debtor to pay, 3. Payment, appropriation of, 6. Release of debtor, 18. Refunding costs, 10. * Secret bargain, 21. Suppressio veri, 11. Wwit Of Qotic« to lurety, 19. ■ m 71 1 480 EQUITY DIGEST. ij "- j 1:' f m 1 — Where surety discharged from liability. Where a surety covenanted to pay certain advances made by the creditors of the principal to him, on a certain day, or so soon qs cer- tain timber should be sold at Quebec, and before the time appointed arrived, and whilst the timber was being conveyed to Quebec, an agent of the creditors obtained from the principal debtor a confession of judgment, and sued out execution thereon, under which the tio. ber in question was sold. Held, that this was such a dealing be- tween the parties as discharged the surety from any further liabilitv under the bond, Dickson v. McPlierson, 3 Grant, 185. 2 — Construction of deeds. The effect in equity of the instruments which came in question a the Bank of British North America v. Jones. [8 Upper Ganadt Queen's Bench Reports, p. 86], considered, and held by the Chan- cellor to be the same as that case decided the true construction thereof at law to be ; Per Eslcn V, C. The effect in equity is a mere transfer of the rights of the Bank as mortgagees ; and per Spragge, V. C, the effect in equity is, prma facie, an absolute sale of the notes and steamboats, not subject to redemption. Sherwood V, Bank of British North America, 3 Grant, 457. 3 — Surety 'paying after arrangement by debtQr to discliargt Debt. A surety paying the debt of his principal, after arrangements bad been made between the creditor and the principal debtor, which would have had the effect of discharging the surety, is not. entitled to re- j cover back the money so paid. Geary v. The Gore Bank, 5 Grant, 536. 4 — Indorser. The accommodation indorser of several bills of exchange and prom- 1 issory notes, obtained from the maker and acceptor thereof, a con- veyance of certain freehold premises .n security against saeiil indorsations. Certain of these bill were s ibsequenily indorsed by another, and were discounted ; and such subsequent indorser, ou the bills maturing, was forced to retire then. On a bill by the second indorser claiming to have the benefit of the trust deed, by having the estate administered, and the amount so paid by him to retire the] notes refunded. Held, that he was not entitled to such relief, ai quesre, whether under the circumstances he had a right to claim snoli I relief, subject to the grantee in the deed being relieved fromii EQUITY DIGEST. 481 debtQV to discJiargi litbilities inoarred on the faith of it. SmWi v. FraUck, 5 Grant, 612. S^Judgrneni creditor — Marshalling securities. H obtained from his debtor an assignment of his books of account, notes, bills and other evidences of debt by way of security against the consequence of his becoming a party to notes for the accommoda- tion of the debtor, and also a conveyance of real estate from the father of the debtor for the same purpose. Having been compelled to pay a large sum of money by reason of his being a party to such aotes ; H recovered judgment against the debtor, and sued out ez- ecntion thereon, which was the first placed in the hands of the sheriff against the debtor, and the effects of the debtor were afterwards sold under this and other executions subsequently placed in the hands of the sheriff; upon which sale sufficient was realised to satisfy the ex- ecution of H, and leave a balance in the hands of the sheriff, and H's claim was accordingly paid, and the books of account and other tecarities held by him were delivered up to the debtor, after notice from a later judgment creditor not to part with them ; and the father's land was re-conveyed to him. The execution creditor who gave the notice claimed in consequence piiority over intermediate ex- ecution creditors, and also a right to compel H to make good the unouDt of his claim in consequence of having parted with the secur- ities. Held, that a subsequent execution creditor had not any equity to compel the first creditor to recover payment of his claim out of the property held by him in security, so as to leave the goods of the debtor to satisfy the subsequent executions, nor had ha any right to call upon H to assign the lands convoyed to him by the debtor's father, that H was not rendered personally liable in the first in- itance to the subsequent execution creditors, but that he had no right to deliver up the securities held by him to the debtor, on Udng paid the amount of hb execution, and was therefore liable for any loss thereby occasioned. Joseph v. Heeton, 5 Grant, 636. — Indorser — Giving time ivithout consent of. The holder of a promissory note sued the maker and indorser, and after execution placed in the sheriff's hands against both, the plaintiff upon lue application of the maker, entered into an arrange- ment by which he extended the time for payment of the amount without consent of the indorser. Held, that this discharged the in' donw firom all liability. Vankoughnet v. Mills, 5 Grant, 653. 8n ■ 1 ■ ¥ ■ I m %■'' ■ ■f 1 1 ■■te,'. pi? b ,1 , • J^ i 482 7 — Indoraer. EQUITY DIGEST. The holder of a promissory note sued and recovered judgment there- on against the makers and indorsers, which was duly registered so as to create a lien on the real estate of the makers ; subsequently the judg- ment creditor accepted from the makers of the note a composition of fifty per cent,, and discharged their lands from further liability, ex- pressly retaining the right to go against their personal assets, and the plaintiff in the action proceeded to execution against the goods of the indorser. Held, that what had taken place operated as a discharge of the indorser from further liability ; and a perpetual injunction wai granted, restraining further proceedings against the indorsers. Mel- lish V, Brown, 5 Grant, 655. 8 — Indorser. The principle laid down in Smith v. Fralick, 5 Grant, 622, follow- ed. A mortgage was executed in favor of an accommodation indorser, to cover his liability in respect thereof, this security was subsequent- ly assigned by him to creditors of himself and the principal debtor, In a suit brought to sell the mortgaged estate, subsequent iucum- brancers sought to impeach this transfer on the ground that the surety as well as the principal was insolvent, but as no such defence was raised by the answer, the Court made the decree for a sale u asked, leaving the question to bo disposed of in a suit to be brought for that purpose Commercial Bank v. Poore, 6 Grant, 5:4. 9 — Injunct ion — Defaulting treasurer. The treasurer of the united counties of Kent, Essex, and Lambton having became defaulter, actions were commenced against him aud his sureties respectively, alterwards, in consequence of a proposition from the treasurer, the warden with the consent of the council settled with the treasurer, and took his confession of judgment for £1,000, anda confession from one of his sureties for a like amount, being together equal to the amount of the defalcation then ascertained, and released the actions against them ; the treasurer's second surety did not take I any part in this arrangement. Afterwards a further defalcation vu discovered, thereupon the council proceeded against the second suretj of the treasurer, and obtained judgment against him for £1,000. Up- 1 on a bill to restrain that action the Court granted a perpetual in- junction for that purpose, although the warden and the attorney of I the ooancils in the action at law swore that their rights as againit f ,{ mm EQUITY DIGEST. 4S3 5 Grant, 622, follow- the second surety were intended to have been reserved. Baby v. Municipal Council of Kent, 5 Grant, 232. 10— Refunding Costs. Quasre. Whether the principal is bound to refund to his surety costs of proceedings taken against the surety to p iforcc payment of the debt of the principal. Whilehouse v. Glass, 7 Grant, 45. II— Siippressio veri. A person about to become surety for another should be informed of all circumstances which may effect his suretyship, and if the party for whoso benefit tho security is given intentionally conceals such circumstances, the surety will be entitled to have the bond de- livered up to be cancelled. Cashin v, Perth, 7 Grant, 340, I'i—Sarety holding collateral security. A person who is surety for another, and holds collateral security, is not bound to wait until he has paid the debt of the principal be- fore he assigns such security, but may do so at any time to the cred- itor in discharge of his liability. Paton v. Wilkes, 8 Grant, 252. 13 — Acceptor and drawer of hill of exchange — Composition Tho acceptance by a creditor of part of his demand against his debtor, and agreeing not to sue him, with a reservation of the cred- itor's rights against a surety of such debtor, will not discharge the surety ; where, therefore, the holders of a bill of exchange receivea from the acceptor a composition of the debt, and executed a deed to that effect, but expressly reserved their rights against the drawer of the bill ; held, that this had not the effect of discharging the drawer. Wood V. Brett, 9 Grant, 452. 14 — Surety entitled to account. By an agreement entered into by tl e lender, borrower and surety, that a judgment against the surety should "stand as additional or collateral security for the payment of such mortgage, to pay and make up any deficiency that might arise or exist, should it at any time become necessary to sell the said farms, &c." Held, that the surety was entitled to have an account taken, the property sold, and credit given on his judgment for the amount realized before he could be called upon to pay anything, and that the surety was not bound in the first instance to pay off tho creditors and take an assignment of the mortgages for the purpose of proceeding against his principal, the mortgagor. Teeter v, St. John, 10 Grant, 85. "i'''-"-r ! .-.' IT 484 EQUITY DIGEST. ? ^ ' 15 — Party liable seeking to set up defence, bound by hit laches. A party secondarily liable and entitled on payment of the debt to an assignment of the security held by the creditor, had agreed that that estate should be sold first, and his own estate liable only for the balance, and such estate was sold in a suit brought by the creditor to which both the parties primarily and secondarily liable were part- ies, and which estate was purchased by the creditor in the name of an agent ; the party so liable having foreborn to apply to discharge the sale in that suit, and two years having elapeed, during which time the creditor sold the property, cannot as a defence to a suit to enforce payment of the balance, insist that the sale in the former snit was invalid. Kains v. Mcintosh, 10 Grant, 119. 16 — Appropriation of payments. A surety has no right to complain of the appropriation of pav. ments by the creditor, when the principal makes no appropriation of them but left them to be appropriated by the creditor as he pleased on the indebtedness Cunningham v. Buchanan, 10 Grant, 523. 17 — Creditor not bound to inform surety of position of of principal's debts. A creditor is not bound to send the surety information as to the position of his principal. If the principars statements or credit are doubted, the surety should enquire into them, and the very fact that a guarantee is called for by the creditor should put the surety on the alert, lb. The mere fact of a creditor abstaining from seizing under execu- tion against the principil his interest in the stock in trade, docs not of itself furnish a ground for suspending execution against the surely, or for the suerty claiming that the creditor shall forbear his rcbiedj against him until the exact value of such interest is ascertained, lb. 18 — Release to debtor. The payee of a promissory note indorsed for the accommodation of the maker, having obtained judgment against the maker, and in- dorscr, executed a rslease to the maker, reserving all his rights against the indorsor. Held, that he was entitled to do so, and might still proceed to enforce the judgment against the indorser. Belh, Manning, 11 Grant, 142. 19 — Want of notice to surety. W owed A ^400, to secure this debt, S as surety joined with W in a promitisory note to the creditor (A) for the amount payable at a I ''• EQUITY DIGEST. 485 j€, hound hy hit fatare date, with interest. W, the principal, without notice to the sure- ty (S), agreed in writing to pay interest at 15 per cent, as a condition of the note being accepted, and of the time mentioned in the agree- ment being given. Held, that the surety was discharged from liab ill- ty. Shaver v. Allison, 1 1 Grant, 355. (Affirmed on re-hearing.) 20 — Assignment of judgment. Where a surety pays a debt, and claims an assignment of a judg- ment which the creditor had recovered against the debtor, and it is doubtful whether the payment is a satisfaction of the judgment ; the creditor may properly make the assignment, and leave the debtor to set up that defence if proceedings are taken on the judgment. Cockburn v. Gillespie, 11 Grant, 465. 21 — Secret bargain. A guaranteed to B, (a creditor of C,) certain composition notes which B was to endorse for the other creditors of C. 6 represented to one or more of the creditors before the composition was agreed to. that he, (B) was to accept a like composition himself, but he had a secret bargain with C, that he should be paid in full. Held, on grounds of public policy, that this secret bargain vitiated the whole transaction, and that A was not liable to B on his guarantee. Clarke t. Ritehey, 11 Grant, 499. 22 — Composition deed. Various proposals having been made for a composition by all the creditors of an insolvent person. A executed a deed to a trustee, reciting that ap agreement to that effect had been come to, and con- veying certain property to the trustee to secure any person or persons who might endorse the composition notes, which the debtors were to receive. B, a creditor, indorsed the notes of the other creditors, but was to receive payment in full of his own demand. Held, that the trost deed was not a security for the notes he endorsed, the deed being available only if tho composition was accepted by all the cred- itors, lb. 2Z— Parties. Where there is only one principal and one surety, both must be made parties to a bill for foreclosure or sale. Go e khwH v , GUlupi ^^ U Gwint, 465 , -fvC^^i^v^ u •f^j^J^^y^^ *«-i^v ***/f. 24 Where a mortgage is given by a surety on his own property, the principal is a necessary p;irty to a suit for the foreclosure of the mortgage. SeiiUer v. Sheppard, 12 Grant, 456« 486 EQUITY DIGEST. II ii\ 25 — Mortgagor selling subject to mortgage — Parties. Where a purchaser of a mortgaged estate takes the same subject to his vendor's mortgage, and sells to another without paying off said mortgage, he will be compelled to fulfil his undertaking to do so. Thus A being the owner in foe of a certain lot of land, mortgaged the farm to B, and then sold to C, leaving the mortgage to be paid by C to B as the balance of the purchase money. C then sold to I) without paying the mortgage, and default having been made, Bsued A at law on hiscovenant; whereupon, A filed a bill agaiost G and D to pay off the mortgage. Held, that A as surety for C, had a right to call upon him to pay the mortgage to £, and also his costs of the action at law. Held, also, that D was a p'^pcr party where the vendor sought to enforce his lien on the land. Joire v. Duffy, 5 U. 0. L. J., 141. 26 — Mortgage as collateral security. A debtor gave a mortgage to his creditor as collateral security for a debt, for which another person [H] was surety. The creditor afterwards obtained judgment against the surety (H^ for the debt, and placed an execution in the sheriff's hands against his goods. A creditor of the surety subsequently placed an execution in the same sheriff's hands, and there not being goods enough to pay both ezeca- tions, he paid off the first execution, and took an assignment of the mortgage. Held, that he was entitled to hold the mortgage to the extent of such payment as against the plaintiff, to whom the surety, (H) after | both executions were delivered to llr ^ns.'Jff, had aj>signed his interest I in the mortgage to secure annP ; '/t. Garreft v, Johnston, \i\ Grant, 36. 27 — Accommodation indor-serL. Acoommodation indorsers after the note on which they were had matured, filed a bill ogaiost the holder and maker to enforce pay- ment by the latter, the relief prayed was granted, and the maker wis I ordered to pay the costs both of the plaintiff and of the holder of the | note. Cunningham v. Lyster, 13 Grant, 575. See Assignment Equitable Assets — Injunction— | Insurance. PRIORITIES. See Absoondinq Debtor — Judgment— Master's Office- | Mortgage— Redemption — Registration — Vendor's Lien. EQUITY DIGEST. 487 s — Injunction- prisoner. Cancellation of securities given by. A person arrested for debt, while in the custody of the sheriff's of- ficer, delivered tu him his promissory note with an accommodation indorser, at the same time executing a bond with a surety for his appearance in the action, whereupon he was discharged from custody. Held, that the transaction was in violation of the provisions of the statute 23 Henry IV., c. 9., aud as such, that the transfer of the note to the bailiff was illegal and void. Richardson v. Hamilton, 7 Grant, 281. PRIVILEGED COMMUNICATIONS. l—WJiat not. Where a defendant in a cause expressed to her attorney her de- sire that a certain course should be adopted Jn reference to a writ in the hands of the sheriff, which course in conseqeunce thereof was ac- cordingly pursued. Held, that this was not a privileged communica* tioD. Walton v. Bernard, 2 Grant, 344. The communications from a debtor to his solicitor in reference to a compromise which the debtor desired his solicitor to effect with his creditors, and on which communications the solicitor acted and at length effected the compromise, are not privileged, and the solicitor's evidence of them is admissable. Fraser v. Sutherland, 2 Grant, 442. A defendant, one of the members of the firm of G & C, when prov- ing a claim in the master's office, was called on to produce all the letters to or from Mr. L (his solicitor) in reference to the ques- tions involved in the proceeding of proving the claim of G & C, excepting such as passed in contemplation of G & C proving their claim in the present suit. Held, that he was bound to do so. Mc- Donald V. Putman, 11 Grant, 258. The distinction b tween the protection afforded to solicitors and clients respectively, with regard to communications made, pending or in anticipation of litigation pointed out. lb. SsE Production of Documents. PROBATE COURT. Ske Kxeoutor. 1^1 il 488 EQUITY DIGEST. PRO OONFBSSO. AtMeondlng dtbtor, 12. Affl(Uvit^7. AmmMag, 8 (1). Corpontiona, 6. Dflfanduit rrauaing to appear before com* minionen, 4. Diaeretlon of the courts, 3. Ex parte, 8. Filing master'a report, 18. Giving notice, 17. MlMcQaneous, 1, 2, 3, 13, 14. Moving ex parte, 8. Notice, 17. Orders of 1853, 20. Order 70, 3 (2). Prootice, 21. Pro c^n. note, 16, 10. Service on solicitor, 0. Six montlu, after, 10, 11, 12. Solicitor undertaking, 8. Vacating, 16. 1 — ^Where one of several defendants makes default in and the plaintiff has obtained an order to set down the bill to be taken pro confesso as against that defendant, the cause must be heard against all the defendants at the same time. Fuller v. Richmond, 2 Grant, 24. Note. This is altered by present practice. 2 — ^Where a defendant has entered an appearance and afterwuds made default in answering, and the plaintiff desires to take the bill pro confesso, he must serve notice of the motion for that purpose on the defendant's solicitor. Anderson v. Henderson, 2 Grant, 134. Note. This is also changed by the present orders as to pro cm, cases. 3 — Discretion of the court. In applications to take bills pro confesso under the 23rd order of May 1850, the order to be pronounced is left a good deal to the dis- cretion of the Court. Perrin v. Davis, 3 Grant, 161. Against one — Application to add parties — Amending, (1) Where a plaintiff had obtained an order to take the bill fn I confesso against one of the defendants, and afterwards applied to amend by adding parties without prejudice to the order so obtained. [ Motion refused. Herchener v. Benson, 1 Grant, 92. 75th order — Proceeding ex parte without Tiotice, (2) Where the plaintiff had proceeded under the 75th order of this I Court, had obtained a decree pro cotijesso and the master's report, all the proceedings taken in the master's office having been ex park and without any notice served on the defendant, the Court refused to confirm the master's report absolutely in the first instance, not- withstanding that it had been the constant practice of the Court to | do so since the making of the order referred to. (Estcn, Y . 0., < sentiente.) Buchannan v. Tiffany, 1 Grant, 98 ; Walsh v. B. Casse/man, 1 Cham. Rep., 292. 11— Motio)i to commit for non-pwdnction — Tuitc for i^er- vice of notice. A notice of motion for an order absolute under order 31 of 6th February, 1865, must be served at least four clear days before its re- \ M EQUITY DIGEST. 495 ed a building 3of; the treas- i, by a member lembers except iVB in his hands being necessary wer possession lies an affidavit ! read together. tion in mas- rce the filing oi but the master I grant an ordfir 'er, and if asked if the accounts. in the master's ust bear the lat- :ep., 202. •stcrs office. been ordered to ( on the ground arcd that the in- ig undated, the ig for an order jailing upon the '.elmnn, 1 Cham. Tuvx for sev- order 31 of 6th ays before its re- y turn by analogy to the former practice by order nisi. Kelly v. Smith 1 Cham. Rep., 364. 12 — Motion to commit for non-production in the regis- trar's offi.ce — Service of nwtice. A notice of motion for an order absolute for non-production in the registrar's office, under order 31 of the 6th of Frebruary, 1865, requires peieional service, by analogy to the former practice by order nisi, Dickson V. Dickson, 1 Cham. Rep., 366. 13 — Where possession of documents admitted. Where a party admits documents in his possession he ia prima facie bound to produce them or assign a sufficient reason why he should not, Green v. Amey, 2 Cham. Rep., 138. 14 — Boohs of account in actual use. Where books were in actual use by defendant, the Court refused to order him to make verified copies of entries relative to matters in question for the use of plaintiff ; but where it was sworn that he had documents so relating which were not mentioned in his affidavits, he was ordered to produce them. 15 — Form of affidavit. Where a Bank agent refused to produce, on the ground that he had no documents in his possession, but as such bank agent. It vras held that he ou^' \ to set out in his affidavit what documents were so in hii possession, and it appearing that he had taken a conveyance to himself as trustee for the bank, and that he had certain docu- ments not mentioned in his affidavit, he was ordered to produce them, although the bank was not a party to the cause, McDonell v. Mc- Kay, 2 Cham. Rep., 141. IG — Allegation that papers did not relate to dispute Where the plaintiff had given a mortgage on a steamboat, and the mortgagee ^,ftcrwards sold the vessel, and the question was whether he was to be charged with the amount of the purchase money, or merely with certain securities received on the sale in lieu of 8Uoh amount, the defendant (^the mortgagee's executor) admitted the pos- session of a copy of a letter from the mortgagee, refusing to join in the sale, and an opinion of counsel relating to the same matter, but alleged that these documents did '' not relate to the plaintiff's title, or the cause made by the bill." Held, that the plaintiff was entitled to production, as the plaintiff's case and that of the defendant were so interwoven and inseparably connected, that nothing could relate to one without also relating to the other. Hamilton v. Street, IQnnt, 327. 496 EQUITY DIGEST. i HI 1 ■• 17 — Onus 'prohandi. Where a conveyance is produced upon notice, by an adverse party, who claims an interest in the cause under the deed so produced, the party calling for its production is not bound to prove its execution. Chiskolm V. Sheldon. 2 Grant, 178. 18 — Privileged communications. In a case between vendor and purchaser, where a defendant who was called on to produce a certain letter, which he refused to produce on the grounds " that the same is and contains an opinion from the said Magrath, who was then acting as my counsel and solicitor in the matter of the purchase of the lands and premises, upon my title to the said lands and premises, and because the same is a communica- tion between myself and my solicitor, relative to my said title." It was held to be a privileged communication, and a motion to commit for non-compliance with a notice to produce was refused with costs. Wilson V. Brumkill, 2 Cham. Rep., 147. 19 — Producing letters. Letters passing between agents of a party to tho cause, although written as between themselves in confidence, are not privileged com- munications or protected from discovery — such letters are considered as in the custody or power of the party in whose interest they are written, and must be produced. Such party cannot withhold part of their contents by cutting out a portion of the letters. Wiman v. Bradstreet, 2 Cham. Rep,, 77, 20 — Practice as to. See Taylor's orders, order for, when obtained, 90 ; service of, 184; effect of disobedience to, 91 ; what must be produced. 91, 92, 93; how enforced, 90, 184 ; affidavit on, 92 ; may be postponed by deputy master, 175; by party on examination, 97; effect of refusal, 98; service of rule nisi for, 184 ; when to be personal, 184. See Evidence, PROFITS. See Partnership. PRO INTERESSE SUO. The right to be examined pro interesse suo is not intended for the olaimant's benefit exclusively, but rather pt ^laps for the benefit of the party in whose interest the goods oUimed are seised. It ii • EQUITY DIGEST. 497 an adverse party, so produced, the re its execution. i defendant who efused to produce opinion from the id solicitor in the upon my title to is a communica- ay said title." It aotion to commit sfused with costi. ) cause, although )t privileged com- ers are considered interest they are its by cutting out Cham. Rep., 77. ; service of, 184; uced. 91, 92, 93; itponed by deputy it of refusal, 98; 184. )t intended for the for the benefit of re Mis«d. Itiia right, however, which will be granted at the instance of tho claimant. Prentiss v. Brenman. 2 Grant, 582. Note. The practice as to examining pro interesse suo is now abolished. See Taylor's orders. Claimant — Costs. Under a sequestration against the defendant, property on his land had been seized, to which a third party laid claim, and which the bailiflF released to the claimant upon his own undertaking. Upon inquiry by the ftlaintiff into the circumstances, he rele. sed the pro- perty, but not until after notice given by the claimant of a motion in the nature of onCj for an examination pro interesse sua. Held, that the claimant by leaving his property in the custody of the defendant had brought the difficulty on himself, and was therefore not entitled to the costs of the application. Harvey v. Tuyhr, 1 Cham. Rep., 353. PROMISSORY NOTKS. The plaintiff indorsed notes for W B, since deceased, which were discounted at two different banks. To indemnify plaintiff against these indorsements, W B mortgaged certain real and personal prop- erty to him. The notes were subsequently paid when due at these banks, with the proceeds of other notes of W B, indorsed by plaintiff, and discounted 8i a third baok. Held, that the iudemnity se- cured plaintiff against his indorsements at W B's request, on paper discounted at the third bank to keep outstanding the amounts of the former notes. Burnham v. Bimiham, 10 Grant, 485. Semhle, that the indemnity given to an indorser will protect him against liability on any other securities in whatever shape to which he may become a party, at the reiuest of tho makor, to keep the amounts of the note outstanding, lb. PROPERTY OP RELIGIOUS INSTITUTIONS. Con. Stat. U. C. c. 09. Land vested in trustees for the use of, and u» a place of residence for a minister of a religious body, and for such other purposes as the ministers of such religious body at their general conference might from time to time appoint, is not " land held by trustees for the use of a congregation or religious body," within the nuaning of Con. Stat. U, C, oh. 69, and this Court has therefore no power to sano- tioD tho exeotttion of any deed ooDyeying Httoh land by tho trustees. 3p 498 EQUITY DIGEST. In Re the Methodist Episcopal Church property in the village < Churchvillef 1 Cham. Rep., 305. PROSSER V. EDMONDS. (The rule in, considered.) Mason v. Seney, 11 Grant, 447. PROVINCIAL FRONTIER. Held, on demurrer, that the words " provincial frontier" used iu section 5 of 20 Vic. ch. 7, referred to the provincial frontier opposite the United States, and not to the boundary line of division between Upper Canada and Lower Canada. Smiih v. Ratte, 13 Grant, 696. PROVING DEEDS. Sex Anoixnt Documents. PUBLICATION. Setting down cause for examination of witnesses. When a cause is set down for the examination of witnesses, pub- lication passes at the end of the ensuing examination term, although issue may have been joined less than three weeks before the com- mencement of that term. Where a plaintiff sets down a cause for the examination of wit- nesses, and serves notice thereof on the other side, but fails to pro- ceed with the examination, this will not entitle defendant to costs of the day, his proper course is to examine his own witnesses, as thereby the plaintiff would be excluded from going into evidence, unless by leave of the Court. Wallace v. McKay, 1 Cham. Rep., 67. Overruled. Sie Cobourg and Peterborough Railway Co. »>. Co- vert, 7 Grant, 411. Service of bill by. See Absent Defendant-^Openinq Publioation. PUBLIC ROAD. See Specific Performance. PUBLIC SECURITIES. Where a testator authorises his executors to invest the surplus of his estate in public securities. Held, that municipal debentures were not thereby authorised. Ewarl v. Gordon, 13 Grant, 40. 11 EQUITY DIGEST. PUFFING AT AUCTION. See Spxoifio Performance. 499 PURCHASE MONEY. Payment of the whole amount of purchase money, in pursuance of a parol contract for sale will not operate as part performance, to take the case out of the statute of frauds, any more than payment of a portion of the price. Johnson v. The Canada Co., 5 Grant, 558. See Speoifio Performance. PURCHASER. Personal representative — Costs — Specific performance. A purchaser of real estate paid a portion of the purchase money daring the life-time of the vendor, and after his decease paid the hal- ance to his personal representative ; none of the heirs-at-law were in- fants, but they refused to execute a conveyance to the purchaser, who filed a bill against the real and personal representatives for speoifio performance. The conduct of the personal representatives was shewn to have been correct, and the Court in making the decree ask- ed, ordered the plaintiff to pay the personal representatives their costs, but gave the plaintiff his costs of suit against the heirs-at-law, not ae;ainst the estate of the vendor. Addaman v. Stout, 13 Grant, 692. Where it is clear that a purchaser of real estate has paid all his purchase money, whether it is necessary in a suit for specific perform- ance against the heirs-at-law of the vendor to make the personal rep* resentatives parties to the bill therefor. Queere. lb. In such a case it would seem sufficient to add the personal repre sent&tives as parties in the master's office, lb. . '^ See Judgment Creditor— Publication— Purchase —Purchaser for Value, &c.— Purchaser Gettt ' Monet Contract— Purchaser of Equity of Redempt^ *^® **'^ ®' under Decree— Vendor and Purchaser. *on— Purchase PURCHASER FOR VALUE W^ ^^ ♦JHOUT NOTICE. I— Notice of incumbrance. Although the rule in equity is '' be given by a person interest '**^ » notice to be binding " must the treaty for the purohe- -** »*» *^® property, and in the course of ji6f* BiiW, where notice of an incumbrance ta ; i !. >• ■ 600 EQUITY DIGEST. an intending purchaser was given by the son, and while acting on be- half of the incumbrancer in endeavouring to effect a loan upon the security of such incumbrance, the purchaser was held bound by such notice. McNames v. Phillips, 9 Grant, 314. 2. A plea of purchase for value without notice cannot be set up against the crown. The Attorney General v. McNully, 11 Grant, 281. (Affirmed on re-hearing, 11 Grant, .581.) 3. A person who purchases land from the heir, with notice of the terms of the will, but under an erroneous supposition that according to the true construction of the terms the land was not affected by it, cannot set up as against claimants under the will, the defence of a purchase for value without notice. Smith v. Honnisteel, 13 Grant, 29, See Attorney and Client — Ancient Document — Equity OF Redemption. PURCHASER UNDER DECREE. 1 — Re-sale. Where a purchaser under a decree of the Court makes default in completing the purchase, the Court, if it sees fit, will order the prop- erty to be resold, and the purchaser to make good any deficiency that may arise upon such rc-sule ; but if the purchaser becomes in- solvent and unable to complete the purchase, he will be discharj^ed from it. Re Heely, 1 Cham. Rep., 54. 2 — Openiiig biddings — Costs. The rule of the Court is that a purchaser at a sale under the de- cree is not bound by any irregularity in the proceedings, so as to cause him to lose the benefit of his purchase ; where, therefore, the master in settling the conditions of sale had given permission, con- trary to the general orders of the Court, to all parties to the cause, in- cluding the plaintiff who had the conduct of the sale, to hid ; and in his report erroneously stated that the sale had been duly advertised in two newspapers for four weeks next preceding the sale, when in reality it had been published in one of the papers for two weeks, and in the other for three weeks only; but the practice under the general order of Court of 22nd February, 1802, being that tho party having the conduct of the sale, and not the purchaser, takes and files the report of the master, and there being no allegation of the purchasers having EQUITY DIGEST. 601 with notice of the )cuMENT — Equity sale under the de- been aware of the irregular proceedings, or any ground for imput- ing had faith to them in the transaction, the Court refused an ap- plication made on behalf of the debtor, to set aside these sales on account of such irregularities, and ordered the debtor to pay to all parties, including the purchasers, the costs of the application. The practice of opening up biddings observed upon. Dickey v. Heron, 1 Cham. Hep., 149. 3 — Costs of mortgage to secure purchase money. Wbcrc, in an administration suit, property was sold upon credit, part of the purchase money to be paid down, and balance secured by mortgage, the sale being under the ordinary condition that the pur- chaser should prepare the conveyance at his own expense, Held, that the purchaser must bear the expense of both deed and mortgage Fahner v. Ran, 1 Cham. Rep., 246. PURCHASER GETTING RID OF CONTRACT. A party contracted to purchase lands of persons not capable of sel- ling, without the authority of this Court, which was subsequently ob- tained. The purchaser having in the meantime gone into possession of and improved the property, afterwards applied to bo relieved from the purchase, and to have the improvements paid for out of the es- tate, alleging his inability to carry out the bargain. The application was granted in so far as he sought to be relieved from the purchase, and declared him entitled to be treated as the purchaser of the wid- ow's dower, but refused to make him any allowance in consideration of his improvements, or return the money he had paid. In Re Yagsie, 1 Cham. Rep., 52, PURCHASE OF EQUITY OF REDEMPTION. Final order of foreclosure — Setting aside. Where a purchaser of equity of redemption paid amount found due to plaintiff, it was held that this was a payment by defendant or some one on his account, and the final order of foreclosure set aside. Reidv. Cooper, 2 Cham. Rep., 90 PURCHASER'S RIGHTS. See Speoifio Pehformanoe. 502 EQUITY DIGEST. s M QUIETING TITLES ACT. Statute of limitations. The filing of a petition under the act for quieting titles is not suoh a proceeding as will save the rights of a party contestant, otherwise barred by the statute of limitations. Laing v. Avery, 14 Grant, 33, Sales under execution. Where a petitioner in proceeding under the act makes out his title satisfactorily, he is entitled to a certificate, unless the title can be successfully impeached at law or in equity, and if a bill filed by the contestants impeaching the transaction by which the claimant's title arose could be successfully resisted by the claimant on any ground, it will form no obstacle to a certificate being granted to the claimant. Inadequacy of price sufficient to set aside a conveyance as between private individuals, will not serve as a ground for setting aside a sale by a sherifiT, under execution. The rule could only bo applied in an extreme case. A sheriff, in obedience to a writ of vendilioni exponas, in November, 1849, exposed for sale by auction, and sold to the attorney of the plaintiff in the writ, for £70, a farm of 150 acres, variously estima- ted as worth £210, and £5 per acre, but which was subject to three rights of dower, two of the parties being young women. In April, 1867, the party claiming under the purchaser at sheriff's sale, filed a petition under the act to quiet his title. The devisee of the execu- tion debtor opposed the certificate on the grounds of improper con- duct in the matter of the sale by the sheriff, evidenced by the gross inadequacy of consideration. The referee of titles reported in favor of the claimant, and on appeal, both parties desiring an adjudication on the facts appearing in the affidavits and proceedings before the referee, the Court affirmed the finding of the referee, and dismissed the appeal with costs. Laing v. Matthews, 14 Grant, 36. Statute of limitations — Costs. The act 25th Vict., ch. 20, abolishes all exceptions and distinctions in favor of absentees, therefore, twenty years adverse uses or occupa- tion of land will bar the right of the party having the legal paper title, whether resident within or without the jurisdiction during such twenty years. When a referee finds in favour of a title acquired by adverse pos- session for twenty years against the legal paper title, his certificate EQUITY DIGEST. 503 les is not such mi, otherwise 14 Grant, 33. 3S out his title e title can he 1 filed by the laimant's title any ground, the claimant. ice as between ng aside a sale s applied in an , in November. ;torney of the ously estima- ibject to three m. In April, s sale, filed a of the execu- improper con- by the gross orted in favor adjudication gs before the iind dismissed 36. d diatinctioDS ses or ocoupa- te legal paper m during such y adverse pos- his certificate must shew of what portion of the lot the claimant has been in posses- sion, as by the occupation of one or more acres of a wild lot of land, a party will not acquire title to the whole lot, but only to so much as he is in actual possession of. Where a party having acquired title to land by an adverse posses- sion for twenty years, institutes proceedings under the act to quiet his title, he must establish his right at his own expense. Costs do not follow as a matter of course in proceedings under this act, and setn- ble, that although such adverse title is established, the applicant may be made to pay the costs of an unsuccessful contestant. Low v. Morrison, 14 Grant, 192. Purchase for value without notice. In proceeding under this act to quiet a title, if it appears that the opposing claim is such that had a bill been filed by the party entitled to enforce it, the applicant would have had a good defence as a bona fide purchaser for value without notice, the applicant will be entitled to obtain the usual certificate of* title. Cochrane v. Johnson, 14 Grant, 177. QUIT CLAIM. SiE Redemption. RAILWAYS. Land purchased and used by the Toronto and Hamilton Railway Company, but not paid for or conveyed, does not vest in the company in fee simple absolute by force of the Upper Canada act 4 William IV., c. 29. Her Majesty's Secretary of State for the War Depart' ment v. The Great Western Railway Company^ 13 Grant, 503. Injunction. A company, being authorised to construct a certain railway, or part of it, built and put in operation part in due time, and after tho expir- ation of the ten years limited by the consolidated railway act (22 Vic, c. G6., a. 117) made calls with a view of constucting the re- mainder. Held illegal, and that consequently any shareholder was entitled to restrain proceedings, though he might be the only shareholder ob- jecting thereto. H : h 604 EQUITY DIGEST. An injunction may be granted in a proper case though the bill is defective in respect of parties and form. Dumhie v. The Peterbor- ough and Lake Chemung Railway Compantf, 12 Grant, 74. See Injunction. RAILWAY COMPANY. Juriidiotlon, 1 (1). Corpontion, 1, 2. PwtiM who may bring lult, 1 (3). Subwription for stock, 2. Lien of contractor on aebentures, 4. Judgment creditor, 6. Receiver, 6, Uiglit as to construction of bridgoi, 6. Attomey-Oeneral, when anecessaryputy, 0. Advances to, 3. 1 — Jurisdiction — Corpwation. (1) This Court has jurisdiction to set aside an election of dircc- ton of a corporate body by persons who are subscribers nominally and not hunafde. Davidson v. Grange, 4 Grant, 377. Parties — Who may briny suit — Corporation. (2) A suit for the purpose o£ setting aside an election of direc- tors of a corporation on the ground of fraud may be brought by some of the shareholders on behalf of all, and need not be in the name of the corporation itself, lb. 2 — Subscription for stock. A bona fide subscription for stock in a corporate company by one person in his own name, but really as trustee and agent for another who has requested such stock to be subscribed for is valid. lb. S — AdvaTices to — Corporation. The municipality of B being interested in the completion of a rail- way, by a by-law of the municipal council, agreed to loan to the company in municipal loan fund debentures the sum of £100,000, for securing the re-payment of which the company executed to the muni- cipality a mortgage on all the property of the company, and which by an act of the legislature was declared to be valid and binding against all the property of the company, as well thai already owned by them as that they might afterwards acquire, and which, by a subsequent agree- ment made for the settlement of certain suits pending between the parties, it was agreed, should be advanced to tlie company in certain proportions as the work progressed. In compliance with requisi- tion of the company for funds " for work done and material furnished and the right of way, &c., for the use of the railway," the municipal council directed their bankers to hand over to the company an amount of the debentures, which, upon their being handed over, were immcdi- ' y; EQUITY DIGEST. 505 mgh the bill is , The PeUrbor. It, 74. ition o{ bridgoi, 6. buAnecesMryputy, (lection of direc- ribers nominally 177. jlection of direc- brought by some c in the name of company by one it for another who lb. ipletion of a rail- 1 to loan to the of £100,000, for uted to the muni- ny, and which by d binding against otoncd by them as subsequent agree- ing between the npany in certain nee with requisi- laterial furnished r," the municipal mpany an amount ?er, were immedi- ately seized by the sherifif under an execution at the suit of the bank- ers. Upon a bill filed for the delivery up of the debentures, held, that go far as the debentures were required for the payment of the right of way, rolling stock ready to be delivered, and other materials not yet become the property of the company, they were impressed with a trust to be applied by the company to the payment of those de- mands. Brockville v, Sherwood, 7 Qrant, 297. i—Lien of contractor on debentures, &c. By the statutes 16 Vict., cs. 22 and 124, and the 18 Vic, c. 13, certain municipalities were authorised to issue debentures under by- laws of the corporations to aid in the construction of a railroad. The contractors for building the road agreed with the company to take a certain amount of their remuneration in these debentures ; and the work having been commenced, certain of these debentures were issu- ed to the company. The contractors afterwards failed to carry on the works, and disputes having arisen between them and the company, all matters in difierence were left to arbitration, and an award there- under was made in favor of the contractors for the sum of £27,- 645, payable by instalments. One of these instalments having become due and been left unpaid, the contractors filed a bill to have the debentures delivered over to them in the proportion stipulat- ed for, according to the terms of the contract. Held, although the contractors would have been entitled to a specific lien on these deben- tures under their original agreement, the fact that they had referred ail matters in difference to arbitration, and had obtained an award in their favor for a money payment, precluded them from now obtaining that relief; and a demurrer for want of equity was allowed. Sykes V. The Brockville and Ottawa Railway Company, 9 Grant, 9. b—Judgment creditor of— Receiver. Held, that a judgment creditor of a railway company, with execu- tion against lands of the company lodged in the hands of the sheriff, is entitled the appointment of a receiver of the earnings of the road, the profits thereof to be applied in payment of his demand. Peto v. The Welland Railway Company, 9 Grant, 455. (^Affirmed on re-hearing, 16 February, 1864. Vankoughnet, C, dissenting). 6 — Rights as to constructing bridges over navigable stream — 16 Vict, cL 37 and 20 Vict, ch. 12, considered — At- toniey General, wJien a necessary party. The Grand Trunk Railway Company, in 1855, erected a fixed bridge over a navigable river, near the outlet. The plaintiff then 8<) 506 EQUITY DIGEST. ill owned land on the bank of the river on which he had erected a fao- tory, and contemplated building a doolc and mills. It was material to him to enjoy the navigation unimpeded, in order to have the most beneficial use of the premises. At the time the bridge was built the 20th section of 16 Vict., ch. 37, was in force ; but before the bill in this cause was filed 20 Vict., ch. 12, was passed, by the 7th section of which it was enacted : " It shall be lawful for the Governor in Council, upon the report of the said board, ^i.c. the board of railwar commissioners,) to authorise any railway company to construct fixed and permanent bridges, or to substitute such bridges in tho place of swing, draw, or moveable bridges on the line of such railway, within such time as the governor in council may direct, and for each and every day after the period so fixed, during which the said company shall use such swing, draw, or moveable bridges, the said company shall forfeit and pay to Her Majesty the sum of £50, Provided it shall not bo lawful for any railway company to substitute any swing, draw, or other moveable bridge in the place or stead of any fi -ed or permanent bridge already built and constructed, without the consent of the Governor in Council previously had and obtained." This sec- tion was not especially set up in answer, but was relied upon in argu- ment as permitting a permanent and fixed bridge in cases authorised by the executive. The plaintiff relied on the former act as provid- ing for a draw bridge, which would not impede navigation ^ and pray- ed that the company might be required to remove the present fixed bridge and to erect in its stead a draw bridge, which would not im- ■ pede navigation, or plaintiff's business ; also, that an account might be taken of all loss sustained by reason of impediments caused by the present bridge, and that the same might be made good to him by the company. Held, that if the river was not navigable, the bridge had been properly erected ; if navigable, the company were wrong in erect- ing the bridge; but that this was cured by the second statute, and that plaintiff was not entitled to the relief prayed. Semblc, thai in such a case the bill should be by tho Attorney General, tho statute referred to having been passed for the general benefit of the public. Cull V. The Grand Trunk Railway, 10 Grant, 491. See Corporation — Injunction — Jurisdiction— Hiouway— Tariff or Charqes. RATES, MISAPPLICATION OF. Sei Injunction. il id erected & fao- [t was material have the most go was built the efore the bill in the 7 th section he Governor in board of railway » construct fixed 1 in tho place of railway, within d for each and e said company e said company 0, Provided it itute any swing, of any fi'ed or lOut the consent aed." This see- led upon in arga. cases authorised :r act as provid- ation , and pray- he present fixed would not im- ■ account might its caused by the od to him by the !, the bridge had •e wrong in erect- 9nd statute, and Semble, thai in tcral, tho statute fit of the public. N— HiauwAY— F. EQUITY DIGEST. READING ANSWER. 607 r I A defendant by his answer admitted that he was devisee, as alleged I in the bill, but added that his right to deal with the property had I been taken away by a suit for administration in England. Held, ■ that the latter statement was not an explanation of tho former, and that the admission as to the will might be read by the plaintiff as evidence without making evidence of what followed the admission. Slicknetj v. Tyke, 13 Grant, 193. ' . ' T REAL ESTATE. A bill was filed by a surviving partner against the representatives of the deceased partner, praying an account of certain partnership dealings, to which a demurrer for want of equity was allowed on the ground that the relief sought was barred by the lapse of more than six years between the death of the deceased partner and the filing of the bill, but leave was given to amend, with a view of shewing that certain lands held by tho deceased partner, and which had descended to his heir-at-law, had been purchased with partnership assets, and that therefore there was a resulting trust in favor of tho plaintiff. Mc- Fadgen v. Stewart, 11 Grant, 272. RE-BORROWING. See MoiixaAOE. re-bui;lding. See Insurance — Lease. RECEIVER. Mortgage, 6. Motion to remove on grounds of mU- conduct, 6. Partnership, 0. Partnership property of, 7. Practice as to, 11. Principal and interest, 8. Vacating recognizance, 12. Affldavit to oppose. Sic, 10. Appointment of, 1. ^Application of rents of mortgaged prem- ises, 2. Assignee in banltruptcy, moving for, 1. Deatn of surety uf , 13. Duty of, of a railway company, 4. Master's rejwrt, 7. 1 — Assignee in banknvptcy, mooing for. An agent claimed to retain possession of property for his indemni- fication in respect of certain accommodation notes given to his prin- cipals, before the bankruptcy of the latter, on which, however, he had paid nothing, and he disputed any liability to holders in respect thereof. Heldf that tho assignee in bankruptcy was entitled to a receiver. \\: T^^ 508 EQUITY DIGEST. '■ '■ \ In such a case the defendant set up a defence, founded upon a ver- bal agreement, proved by his own affidavit only, and inconsistent with a written instrument which purported to contain the agrecisent entered into between the parties; such agreement having been drawn by the defendant himself, a practicing attorney and solicitor, and ex- ecuted by all parties. Held, that the defence ought not to prevail on a motion for a receiver. A receiver granted, with liberty to the defendant to propose him- splf as such without salary. Kemp v. Jones, 12 Grant, 260. 2 — Suing for debts. Where a receiver appointed to manage an estate, finds it necessary to sue for debts due to it, an application for permission to do so must be made, supported by affidavits shewing the expediency of institut- ing such proceedings. Thomas v. Torrance, 1 Cham. Rep., 9. 3 — Appointment of. A receiver, though an officer of the Court, stands in the position of trustee for all interested in the estate or fund, therefore in making the appointment, the Court will endeavour to select a person unexception- able to all parties, not only on the score of fitness, and competency, but also as regards the feeling of friendship, or dislike between the person proposed and those with whom he, in the discharge of his duties, will be likely to be brought into frequent communication. Simpson V. Ottawa and PresroH Railway Co., 1 Cham. Rep., 99. 4 — Duty of a receiver of a railway company. VVheie the receiver of a railway company was appointed to re- ceive " the rents, issues, and profits of the railway" ; held, that it was his duty to receive the gross receipts of the company for the carriage of passengers, freights, mails, ko., and to pay the bills for running expenses thereout, and not to receive only the surplus after paying the expenses. The order for the receiver's appointment should direct the payment to him of the tolls and profits arising from the railway. Simpson v. The Ottawa and Prtscott Railway Com- pany, 1 Cham. Rep., 126. 5 — Mortgmjc — Application of rents of inortf/arjed premises. It would seem that a first mortgagee has not, as such, a right to the rents and profits of the mortgaged premises. Whore, therefore, a puisne incumbrancer filed a HI 1 and obtained the appointment of a receiver, who had, since his appointment, collected the rents and profits of the property and paid the same into Court, and a prior in- cumbraucor, who was not a party to the first suit, filed a bill upon EQUITY DIGEST. 609 led upon a ver- id inconsistent the agreement ng been drawn lioitor, and ex- not to prevail o propose him- t, 260. tds it necessary n to do so must Qcy of institut- . Rep., 9. n the position of e in making the on unexception- ,nd competency, ke between the ischarge of his •ommunioation, m. Hep., 99. ipointed to re- '; held, that it )mpany for the ay the bills for tly the surplus r's appointment its arising from Railway Com- ijed premises. uch, a right to ure, therefore, a pointment of a the rents and md a prior in- led a bill upon his mortgage, and moved in that cause for an order to apply the rents so paid in by the receiver to payment of his claim, the Court, under the circumstances, refused the application with costs, but gave the plaintiflF liberty to renew the same in such manner and in such suit as he should be advised. Bank of British North America v. Heaton, 1 Cham. Rep., 175, Q— Motion to remove receiver on the ground of misconduct — Duty of receiver. A receiver had been appointed to collect the gross amount of the tolls, rents, issues and profits of the 0. & P. R. Co. Afterwards the rolling stock of the company had been seized by a sheriff under fi fa at the suit of another company not a party to the f,uit, the sheriff de- clined to sell the same unless authorised by the receiver, who believ- ing, under the advice of counsel, that he had no control over the stock, assented to the sale by the sheriff, and the same was accordingly sold. Held, on motion to remove the receiver for misconduct that he had committed a breach of duty in not informing the Court of the seizure and threatened sale, and in assenting to the sale without its sanction, but as it appeared that the receiver had acted honafde and to the best of his judgment for the benefit of all parties the Court declined to remove him from his of&ce, but ordered him to pay the costs of the application. Simpson r. The Ottawa and Prescoit Railway Company, 1 Cham. Rep., 337. 7 — for partiurship property — blaster's report. When there is a reference to the master to enquire what lands are partnership property, a motion to appoint a receiver is informal. Bates V. Tatham, 5 U. C. L. J., 40. 8 — Principal and interest. Where a receiver had made an investment unauthorised by the Court, by which a profit had been made, the amount realized was di- rected to be added to the principal. Baldwin v. Crawford, 2 Cham. Rep., 9. 9 — Pa^'hicrskip. Where, in consequence of the misconduct of a managing partner, a receiver had been appointed, a motion calling on a person in posses- sion of property of the partnership (the legal estate in which was in such partner) to deliver up possession or attorn to the receiver was granted, though the person in possession swore that the conveyance by which such legal estate became vested, though absolute in form, r ■.. I 31 l?! 510 EQUITY DIGEST. )| ,1 I was executed by the deponent as a security only. Prentiss v. Br en- nan, 2 Grant, iS. In a suit in which a receiver of partnership effects had been ap- pointed and a sequestration issued against the defendant for contempt, the Court retained a motion against third persons for delivery or payment to the receiver, or sequestrator, of a promissory notej the property of the partnership transferred subsequently to the is- suing of the injunction and sequestration, but before the note be- came due by the defendant in a foreign country, the affidavits of the bona fides of such transfer being contradictory, the Court gave leave to file a bill against such third person. Prentiss v. Brennan, re Bunker, 2 Grant, 322. 10 — Affidavit to oppose must specify defence. The defendant cannot defeat a motion for a receiver by a general affidavit that he has a good defence to the suit, he must specify the defence distinctly, to enable the plaintiff to meet it and the Court to judge of it, Aikins v. Blain, 13 Grant, 646. 11 — Practice as to. See Taylor's Orders, how appointed, 124 ; his duties, rights, ac- counts and sureties, 125, 126, 127, 128 ; may be appointed by pro con. decree, 81 ; in administration suits, 83 ; in chambers, 114, 124; bond to be to master, 125 ; to be settled by judge or master, 125; form of recognizance and accounts, see in loyal Commis- ' Upper Canada iny further in- 12. ' Upper Canada to warrant the and suspended, g and endowing ;ee being named n which the rec- ■tain township. is Majesty aud Qor of the Pro- rein, according irsuance where )vernor, erected ial statute sub- if Toronto was resentation was islature erected se of Toronto, '6 incorporated looose of Onta* len Bishop with mbency. The the death of the incumbent, presented to the rectory of Kingston ; whereupon an information was filed by the Attorney General on the relation of cer- tain of the parishioners against the bishop and the rector, praying to have such by-law of the Synod declared void and set aside. A demurrer by the bishop and rector for want of equity, was allowed, the Court considering that under the several acts and proceedings which had been passed and taken, the right of presentation was vested in the bishop during his incumbency ; but, qtupre, if the Church Society of the Diocese of Toronto, before setting off of the Diocese of Ontario, had passed a by-law similar to the one passed by tlie Synod of Onta- rio, whclher ihe ripht to make such presentation did not remain with the Bishop of Toronto. Attorney General v. Lander, 9 Grant, 461. 3 — Right of presentation to. Held, that the right of presentation to rectories in the Diocese of Ontario, in Upper Canada, is vested in the Bishop for the time being during his incumbency of office. Attorneif General v, Lander 9U.C. L.J., 261. See Rector— Patent. REDEMPTION. Iiijuiiutioii, Ci. Where refused, (i. Friorities, 7. Account, 7. By oiw of several ilefeiidant:), 8. Eleventh Clause C'liaiieery Act, 9. Parties to conveyance— liuwer, 10. Trustee, 1. Substantial improvements, 1. Where refused under lltli Clause Chancery Act, 2, ». Quit claim, 3. Costs against defendants, althungh redeni- tion refused, 4. Parties, 5. 1 — Trustee— Substantial improvements. The principle, that ^en a trustee expends his money upon the estate, and thereby increases its value, the property will not be wrest- ed from him without re-paying him the expenditure by which the estate has been substantially improved, acted upon in the case of an infant ceUui que trust. Bevis v, Boultoti, 7 Grant, 39. 2—Wliere refused under llth Clause Chancery Act. The owner of real estate created a mortgage which became absolute for default of payment before the passing of the Chancery Act, VII William 4, ch. 2 ; proceedings were subsequently instituted to fore- close the mortgage, and in December, 1842, a tinal foreclosure was pronounced, and the mortgagor continued to reside in the neighbour- hood of the property until January, 1854, when he died, liaving devised all his real estate to his widow. The mortgage premises ailer passing through several hands were purchased by the solicitor for the plaintiff in the foreolosare suit, it having been discovered that 3r J! >-■ 514 EQUITY DIGEST. m IS: the mortgagee had died some time before the day appointed for pay- ment of the money, the widow filed a bill to redeem, but neither the solicitor nor his agent who conducted the suit to foreclose, nor either of the purchasers of the property were aware of that fact, or of any defect in the proceedings. The Court under the circumstances held that this was a proper case in which to withhold redemption, under the discretion given to the Court under the eleventh clause of the Chancery Act, that purchasers could not reasonably be held to have constructive notice of the defect in the proceedings, and dismissed the appeal with costs. Arkell v. Wilson, 5 Grant, 470. In appeal, 7 Grant, 270. *^ — Quit claim. T^j plaintiff having a bond ibr a deed from one W, assigned the same to C by way of security only ; by a quit claim deed, C convey- ed to K. Held, that such a conveyance was a mere transfer to the purchaser of whatever title the grantor had, and did not place him in any better position than his assignor. Graham v. Ghalmeis, 7 Grant, 697. 4 — Costs against ilejhidanis, althomjk redemption refused. Where a suit is brought for redemption, and the defendant set up an absolute conveyance by way of answer, to which the plaintiff sim- ply files a replication without amending his bill to impeach the cou- veyance, he cannot do so in evidence. Where, however, a cause was brought to a hearing under such circumstances, and the evidence was such as to create a strong suspicion of the hona fides of the transac- tion ; the Court gave the plaintiff who had purchased from the alleg- ed mortgagor liberty to amend by making the mortgagor a party, with a view of impeaching the deed, and reserved the costs until the cause came on again, and the bill having been amended in accordance with such permission, and again brought on for hearing ; the Court, although, unable upon the evidence to grant the relief asked, refused the defendants their costs up to the original hearing, in consequence of the untruthfulness of their answers, Fmlayson v. l\lullurd,\0 Grant, 130. Although the general rule is that in a suit to redeem, if a balance b found due to the defendant, he will be ordered to receive his costs, still, where on the settlement of certain land transactions between vendor and purchaser, the former, together with his solicitor, made up a statement shewing a balance due to him of £417, for which the vendor, who was old and illiterate, executed a mortgage on his estate; EQUITY DIGEST. 616 pointed for pay- but neither the 2I0SC, nor either t fact, or of any umstancea held leoiption, under ;h clause of the be held to have and dismissed c70. In appeal, W, assigned the deed, C convey- ! transfer to the not place him iu almeis, 7 Grant, piioii refused. defendant set up the plaintiff aim- impeach the cou- iver, a cause was the evidence was s of the transac- d from the alleg- rtgagor a party, ie costs until the led in accordance ring ; the Court, ef asked, refused ;, in consequence ( V. Mullard, 10 eem, if a balance receive his costs, sactions between ia solicitor, made 17, for which the ige on his estate; but on taking the accounts in the master's office, it was shewn that at the time of taking the security only £26 7s. 4d. was due ; the Court upon a bill filed by the mortgagor against the executors of the mortgagee, impeaching the whole transaction for fraud, ordered his estate to pay all the costs of the litigation. Soiifer v. Burvham, 10 Grant, 375. 5 — Parties — Inj imcf io n . W sold certain land to M, giving a bond for a deed, M assigned to plaintiff his interest in this bond, as also certain chattels in security, but retained possession of the instruments ; subsequently M assigned absolutely the bond to C, to whom (with notice of the prior security) W conveyed the premises, taking back a mortgage for unpaid purchase money, upon which W filed a bill for foreplosure against C, making the plaintiffs and their co-partners in the business defendants as in- cumbrancers, by reason of a registered judgment; but they omitted to set up an interest in the premises by reason of the security given to them by M, in which suit the bill was taken pro confesso, and a final order for foreclosure was obtained against all the other defen- dants. On a bill filed against W, seeking to redeem or that he should pay off the claim of the plaintiffs under the security from M. Held, that M was a necessary party to the suit, also that W had a right to pay them off their claims against M, and to call for an assignment of the other securities held by them for such claim, the amount of which M was bound to pay to the plaintiff or W in case of his pay- ing. McQuestten v. Winter, 10 Grant, 464. G — Where refused. In July 1859, F, being a member of the firm of B M & Co., mortgajj;ed certain lands, the property of the firm, to the defendant C. In September 1860, by the " act and warrant" (under imperial act 19 and 20 Vic, c. 79) of the sheriff depute of Lanarkshire in Scot- land, all the real and personal estate of R I\I & Co., in Canada as well as in Scotland, became vested in R under the bankruptcy laws of that country, as trustee, and in August 1801 the equity of redemption vest- ed in R & B as trustees. In June 1861, C, being ignorant of the proceedings in bankruptcy, filed his bill of foreclosure against F, who took the copy served on him to R's solicitor, but no notice was taken of it; and in 1862 a final order of foreclosure was obtained and regis- tered by C, who in 1863 convcj'cd to defendant G. In 1864 R and B filed the present bill for i-cdcmption. Held, that the " act and warrant," though containing no attestation clause, without a witness to its execution, and specifying no lands in Upper Canada, was capably !■: TTTT m ... 516 EQUITY DIGEST. of registration. Held, further, tbe transferree of real estate transferred in general terms must, at his peril, register the instrument under which he claims in the city, town, township, or place in which the lands lie, and that the conduct of the plaintiffs after service upon F and notice to R's solicitor disentitled them to redeem. Rohson v C'irpenlpr, 1 1 Grant, 293. 7 — P r io r i t ies — A ceo unt. Where there are in a foreclosure suit several incumbrancers, and one day is given for them and the mortgagor to redeem, or in default foreclosure, and the incumbrancer first in priority redeems, a new ac- count must be taken and a new day appointed for payment giving the rest three months longer time to redeem. Ardagh r. IVihon, 1 Cham. Rep., 389. 8 — By one of several defendants. Where there were several defendants interested in the equity of redemption of certain property, and one purchased up several out- standing shares of co-devisees also interested, and so dealt and acted that the other parties interested assumed that he intended to redeem for their mutual benefit, instead of which he arranged with the mortgagee to suffer foreclosure and then bought from him, it was held that he could properly do so for his own sole benefit. RnUan v. Lfrisconte, 2 Cham. Rep., 108. 9 — 11 section chancery act. Per Robinson, C. J., and McLean, J., the Court of Chancery un- der the 11th s. of the chancery act may, under certain circumstances, refuse redemption, notwithstanding twenty years have not elapsed since the mortgagor went out of possession. Per Macauly J. and Smith ex C. That the Court has not, under this section, power to refuse redemp- tion, where, by the law of England, the party would be entitled to redeem, but has only a discretion of imposing terms different from those that would be imposed according to the strict rules in England, One of the several defendants having deposed to a fact which, if proved by proper testimony, would have tended to defeat the suit as against him as well a.s against his co-defendants. Qutvre, whether his evidence is admissablo on behalf of his co-defendants. Simpsvi r. Smyth, 1 Grant, E. & A. R., 9. The Court of Chancery, under the 11th section of the chancery act, may, under certain circumstances, refuse redemption, notwith- Btanding twenty years have not clapsf' .'?nce the mortgagor went out of poBBCWJon, Same t«se on re-argumenf, snmt volume, 172. EQUITY DIGEST. 517 state transferred lent under ^vhich ich the lands lie, ion F and notice V Ciirpenler, 1 1 uinbrancers, and 3U1, or in default deems, a new ac- y^ment giving the 'Ji r. Wilson, 1 in the equity of up several out- dealt and acted ded to redeem for th the mortgagee was held that he r. Lfriscanfe, 2 of Chancery un- ci rcumstanccs, not elapsed since and Smith ex C. refuse redeuip- be entitled to different from ules in England. a fact which, if feat the suit as v.re, whether his ts. Simpson r. )f the chancery iption, notwith- tgagor went out \0— Parties to conveyance — Doiver. A foreclosure suit had been brought and a final order obtained therein ; some time afterwards the mortgagor had filed a bill to re- deem, and the Oonrt had opened the foreclosure and granted redemp- tion, it appearing that no change had taken place in the relative position of the parties. Hefd, on a motion by the mortgagee for payment out of Court of the mortgage money, that it was unneces- sary for the wife^ of the mortgagee to join in the conveyance to the mortgagor to bar dower. Siinpson v. Simpson, 1 Cham. Rep., 265. See Praudulcnt Conveyancr — Injunction — Judgment Creditor— MoRTOAaE. RE-DIVISION OF ESTATE. See Residuary Estate. REFEREE. His jurisdiction — Costs. Re Lot B. 8th Concession, Enniskillen. The referee had made an order dismissing the petition of a petitioner for a certificate of title with costs, A motion was made to set aside such order as irregular, and the powers and jurisdiction of the referee were discussed. The Court held that the referee had power over costs, and refused to pt aside the order as irregular, but Mowat, V. C, expressed his in- tention to direct the referee in future to draw up orders in similar terms to reports of masters : and that he "find and certify" instead of " ad- judging and determining." 2 Cham. Rep., 22. REFERENCE. See Arbitration — Arbitrators. REFERENCE AS TO INCUMBRANCERS. See Incumbrancers. REFERENCE AS TO TITLE. Where a reference is made to the master as to title, and objections arc brought in thereto, the master is not warranted in making a re> port either for or against the title ; his proper course is to mark each I If 518 EQUITY DIGEST. objection ''allowed" or "disallowed," as the case may be. Gockemur «. 5w//oct, 12Grant, 73. REFERENCE BACK TO MASTER. Taking further evidence. Where a reference back to the master to review his report is di- rected, the master is as of course at liberty to receive further evidence. Where the Court, on a reference back to the master, does not mean that he shall take further evidence, the order contains a direc- tion to that effect, unless the reference back is expressed to be for a purpose on which further evidence could not be material. Morelyv. MaUhews, 12 Grant, 453. See Practice. PEFERENCE BY MARRIED WOMAN. See Arbitration. REFORMING DEEDS. A, being in possession of the east half of a lot, clainiing title thereto, executed a mortgage on the west half. On a bill against the heirs of A to reform the mortgage by substituting the east half for the west half, it was shewn that A had no claim to the west half and that that portion of the lot was an improved farm, of which others had been for many years in possession- The defendant neither ad- mitted nor denied the mistake. Held, that the mistake was suffici- ently established to entitle the plaintiff to a decree for reforming the mortgage. While v. HatglU, 1 1 Grant, 420. REFUNDING COSTS. See Principal and Surety. REGISTRAR (OF COURT OF CHANCERY.) See Taylor's orders as follows : appointment of, 4, 5 ; to keep so- licitor and agent's book, 166; to examine and certify office copies, 167: how pleadings transmitted to and from, 168, 220 ; bonds for security for costs to be to, 169 ; to sign chc][ues, 169 ; draw up or- ders of course, 169 ; to enter evidence in book, 170, 200; affidavits to be filed with, 131 ; cause for examination to be set down with, 191 ; to prepare lists of causes, 191, 213, 218 ; party to give notice lay be. Gockemur PER. w his report is di- re further evidence. e niaBtcr, does not ir contains a direo- [prcssed to be for a aterial. Morelyv, )MAN. EQUITY DIGEST. 519 lot, claiming title On a bill against ing the east half for the west half and n, of which others sndant neither ad- nistake was suffici- 3 for reforming the LNCERY.) , 4, 5 ; to keep so- ertify office copies, 18, 220 ; bonds for 169 ; draw up or- 70,200; affidavits be set down with, arty to give notice to, 213, 218 ; exhibits to bo deposited with, 200 ; to sign schedule of, 200; fees allowed to, 180, 199, 220. SiE Appointment. REGISTRATION. The filing of any bill or the taking of any proceeding in the Court of Ohancery of Upper Canada or the County Court on its equity side, in which bill or proceeding any title or interest in land is brought in question, shall not be deemed notice of such bill or pro- eeeding to any person not being a party to such bill or proceeding, unless and until a certificate, given by the registrar or a deputy reg- istrar or clerk of the Court, in the form mentioned in this section, has been registered in the registry office of the county in which the land is situate. "I certify that in a suit or proceeding in Chancery, or in the County Court of on its equity side, between A B and C D, some title or interest is called in question in the following land, (^de« scribing it.) But no certificate is required to be registered of a suit or proceed- ing for the foreclosure of a registered mortgage. 18 Vic. oh. 127, sec. 3. 20 Vic, ch. 56, sec. 9. Con. Stat. U. C„ 890. 22 Vict., ch. 89, sec. 40 and 43. Every decree affecting land may be registered in the re^stry office of the county where the land is situate, on a certificate by the regis- trar or deputy registrar of the Court, setting forth the substance and effect of the decree, and the land affected thereby. 18 Vic. ch. 56, 860.4. Registration is now notice of all instruments registered before, as well as since registration was made notice. Vaiice v. Cummings, 13 Grant, 25. Since the passing of the Consolidated Statutes, registration of a mortgage of unpatented lands, under the Statute 8 Victoria, ch. 8, see, 9, is notice to subsequent purchasers, whether the patent was is- sued under or without a decision of the Heir and Devisee Commis' sioners lb. Express notice of an unregistered assignment of unpatented land, has the same effect as like notice of an unregistered conveyance after patent issued. Goffv. Lister, 13 Grant, 405. Sis Chattel Mortoaoe— Contract— Crown Debt-— Dsid J ' ^TT 520 EQUITY DIGEST. w. m I — Equitablb Mortqaoe— Qbant from THr ^WM — Lien— MoKTGAOK — Notice — Power op SAiiK — - -siisTRATiON op Deeds— Reqistration op JuDaMENTs—REaifeXRY Acts. REGISTRATION OF DEEDS. Fraudulent conveyance, 1. Notice, 2. Mlicellaneous, 3. Morttrage, G. WltneiiH HiKuinir after rei;litratlon, 4. Will, C. 1 — Fraudulent conveyance. Although the prior registration of a deed executed without consid- eration, confers no title upon the grantee, as against a lonafide pur- chaser for value ; still, as the fact of such a deed being upon record will have the effect of creating a cloud upon the title, the Court will decree its removal . Ross v, Harvey, 3 Grant, 64r 2 — Notice. To postpone a registered title on the ground of notice of a deed having been previously executed, though not registered, the evidence of notice must be quite satisfactory, and distinct upon the point, Hollywood V, Waters, 6 Grant, 329. 3 — Miscellaneous. (1.) A witness to a memorial was described as '' of the City of London," another witness described as " of London " Held^ to be sufficient descriptions of the person named ; also, held sufficient for the witness, affidavit, proving execution of the deed, and memorial to state that he had seen the due execution of the dectl. i..eid v. Whitehead, 10 Grant, 446. (2.) A memorial described the land in the same words as the deed which, however, did not sufficiently identify the premises, and con- cluded with n reference to a mortgage, not imported into the memorial. Held^ insufficient, lb. (3.) One of the witnesses swore the affidavit proving the execu- tion of the memorial before the other witness. Held, no objection lo the affidavit, lb. 4 — Witness signing after registration. Registration of a mortgage held not to be invalidated by the mort- gagee signing it, and also the witness to the execution of the instru- ment subscribing his name to it after it had been registered. Muir V. Dunnet, 11 Grant, 85. ^WN — Lien— -otiSTRATION OF rRY Acts. Iter rei{Utratloii, i. ed without consid- Bt a honajide pur- being upon record tie, the Court will notice of a deed ired, the evidence ; upon the point, " of the City of v" Held, to be held sufficient for d, and memorial 3 deo^. x*eid v. ^ords as the deed emises, and con- nto the memorial. oving the ezecu- eld, no objection ited by the mori- on of the instra- dstered. Muir EQUITY DIGEST. 521 5-~W III— Mortgage. The owner of real estate held under a registered title, devised a portion thereof— his homestead— to his wife in fee, but the will, al- though known to all the members of the family, never was registered. At the death of the testator (1831,) theeldest son and heir-at-law was residing on a farm of 75 acres, which his father had conveyed to him with one of his brothers ; but after the death of his father, he went with his wife and children and his brother to reside on the home- stead with his mother, and some years afterwards by an arrangement among some of the members of the family, he conveyed the farm of 75 acres to the brother, who thereupon took possession of and occu- pied it ; but the heir-at-law continued on the homestead until his mother's death, which occurred 24 years alter the death of the testa- tor, during all which time he acted as apparent owner of the home- stead, building on and improving it ; the taxes therefor being assessed in his name, and he voting at elections upon it. About eight years after the death of his mother, and i« the year 1862, the heir-at-law, who continued to occupy the homestead, created a mort- gage thereon, which was duly registered in favour of a person who was ignorant of the existence of the will : on a bill filed to enforce the mortgage, held, that under the circumstances the possession must be treated as that of the heir-at-law, that his brothers and sisters could not as against a bona fide purchaser or mortgageOj allege the possession to have been that of the widow, and thereby set up a title under the statute of limitations, and that as against such purchaser or mortgagee the will, under the registry laws, must be treated as fraud- ulent and void. Stephens v. Simpson, 12 Grant, 493. REGISTRATION OF JUDGMENTS. Registered Judgments, 1, 2, 14. Komi of certificate, S. Re-registratton, 4. Misnomer, 5. Act 24 vie. abolishing, C. Execution against lands, 7. Priority, 8. Lien. 7, 12. Sale under fl fa, 10. Judgment Creditors, 11, 13. 1 — Registered judgmients. Registered judgments bind lands from the time of their registra- tion ; but they do not, by means of such registration, acquire any priority over previous deeds, although unregistered. Bethune v. Coukutt, 2 Grant, 81. But see provincial statute, 24 Vic,, c. 41, repealing act making registered judgments a lien on lauds. 2— Registration is not notice in this country. Street v. Commer' cial Bank, 2 Grant, 169. 3s T 1 622 EQUITY DIGEST. But see provincial statute, 13 and 14 YiC; c. 63, s. 8, by which it is expressly made notice. 2 — J'-.idgmenta registered under 9 Vic, c. 34, and 13 and 14 Vic, c 63 — Priority. Judgments did not bind lands until fi fa lands issued. Effect of placing fi fa lands in sheriff's hands as between two registered judg- ments. Moffat V. March, 3 Grant, 623. 3 — Form of certificate of. The certificate of judgment registered was entitled "in the Queen's Bench," not in the Court of Queen's Bench," and concluded with "given under my hand and seal, &c.," instead of" given under my hand and the seal of the said Court, &c.," and omitted any form of action in which the judgment was recovered. Held, a sufficient compliance with the form given in the statute 9 Vic, c. 34. Bank of Montreal V. Thompson, 9 Grant, 51. 4 — Re-regiatration. A judgment creditor omitted to re-register within three yean. Held, that he thereby lost his lien as to persons purchasing or becom- ing incumbrancers after that time, and before re-registration wu effected. Warren v. Taylor, Ross v. Taylor, 9 Grant, 59. 5 — Misnomer. Ajudgiuent was recovered against " Charles Westley Lount," which was the correct name of the defendant. The registration was of a judgment against " Charles Wesley Lount." Held, sufficient. Proud- foot V. Lount, 9 Grant, 70. A confession of judgment was executed in the name of " Matthew Rodger." The certificate for registration was of a judgment against '* Matthew Rodgers." Held, that the mistake vitiated the registra- tion. McDonald v. Rodger, 9 Grant, 75. Affirmed on appeal. S. C, U. C. L. J., 245. 6 — Act abolishing registration of judgment 24 Fie, c. 41 — Construction of sec 11 — Retrospective effect. The words "suit" or "action" in stat. 24 Vic, c. 41, s. 11, mean suit or action to which a judgment creditor is a party not the original action or suit in which the judgment is recovered. Therefore, held, where plaintiff recovered a jludgment on the 5th of June, 185G, and registered it on the following duj, defendant being then the owner of certain land in fee, which land the judgment creditor subsequently ■F ■■' 3, 8. 8, by wbich , and 13 and 14 ssued. Effect of > registered judg- 1 " in the Queen's 1 concluded with ' given under my Dmitted any ibrm Held, a sufficient "ic, c. 34. Bank ithin three yean, rchaaing or becom- e-registration wu ant, 59. ley Lount," which stration was of a sufficient. Proud- line of " Matthew judgment against ated the registra- t 24 Vic.,cA\ fed. . 41, s. 11, mean ty not the original Therefore, held, June, 1856, and hen the owner of tor Bubsequentlj EQUITY DIGEST. 523 conveyed to defendant that as there was no suit pending on the 18th of May, 1861, when stat. 24 Vic, c. 41, came in force, in respect of the judgment, or the land affected by it in which plaintiff was a party, a bill by plaintiff seeking to charge the land was rot sustainable. Buck- ley », Ryan, 7 U. C. L. J., 322. I—Execution against lands — Relation to date of registry. Held, that a registered judgment binds the lands of the debtor at law from the time of registration, so that the sheriff can deliver exe- cution of them into the hands of whomsoever they may afterwards pass. Bank of Montreal v. Thompson, 8 U. C. L. J., 102. 8 — Priority. A, on the 2nd of February, 1857, created a mortgage of real estate in favor of B, which was duly registered on the 11th of July following. B, by an indorsement on the mortgage, assigned the same to C. Sub- sequently a judgment was recovered against B, which was duly re- gistered, after which C registered the assignment of mortgage to him- self. Held, affirming the judgment of the Court below, that the judgment, by reason of such prior registration, had priority over the assignment, which, by reason of such non-registration, was void as against the judgment creditor. Freeman v. The Bank of Upper Canada, 2 Grant, E. & A. R., 362. 9— Lien — 9 Vic, c. 34, and 13 and 14 Vic, c. 63. Held, per curiam, affirming the judgment of the Court below, that in order to a judgment creditor retaining the lien created by the re- gistration of his judgment, it was incumbent on him to lodge a writ against lands with the sheriff within one year after the registration of his judgment; in other words, if such a judgment creditor had neglected to lodge his writ against lands for a year after the entry of his judgment, and an unregistered judgment creditor, or a subsequent- ly registered judgment creditor had lodged his writ before him, the sale effected under such execution will be freed and discharged of any lien created by such registered judgment. (Vankoughnet, C, dis- senting.) Kerr v. Amsden, 2 Grant, E. & A. R., 446. 10 — Sale under Ji fa issued thereon. The ruling of the Court of Queen's Bench in Doe Dougall v. Fan- ning, 8 U. C. Q. B., 166, and Doc Dempsey v. Boulton, 9 U. C. Q. 6., 532, that the sale by the sheriff under a writ of ti fa against lands conveyed the estate held by the judgment debtor at the time of the registration of the judgment, were referred to and followed, Thirkell t^"^^? i i '1 ■ 1 > -'; ' i> i! 624 EQUITY DIGEST. V. Patterson, 18 U. C. Q. B., 75, and Wales v. Bullock, 10 U. C. C. P., 155, remarked upon. Bank of Montreal v. Thompson, 9 Grant, 51. 1 1 — Judgment creditors parties. Where a bill had been filed prior to the 18th of May, 1861, all judgment creditors, who had their judgments duly registered, were entitled to be treated as parties to the cause, though not actually nam ed in the bill and not added as such in the master's office until afler that date, without having placed fif reserved bid, and the master issued his advertisement. On a motion | to the judge in chambers, liberty to have a reserved bid was granted, and the master's advertisement of the terms and conditions of sale I altered in accordance therewith, on payment by the plaintiff of the costs of the application. [Spragge, V, C. ] Fraser v, Bcns,l Cham. Rep., 7 1 . RESIDENCE. A visit to Upper Canada of two months' duration is such a resi- dence as brings a defendant within the statute [14 and 15 Vict, ch. 10,] respecting absent defendants. Doreinus o. Kennedy, 2 Grant 657. RESIDUARY ESTATE. A testator devised to his son, a certain named lot ; the residue of | his estate, after certain other specific devises, he directed to be di- vided between his two brothers and sister, amongst whom, after the death of the testator, the property was divided, iu which division by mistake the lot devised to the son was included, which was allotted to one of the residuary devisees as part of his share, who devised the same to his sons, and who, on discovering the mistake which had been committed, applied to those interested in the residuary estate to have the mistake rectified, when it appeared that some of the other resi- duary devisees had sold portions of the shares allotted to them, bj reason of which a re-division of the estate was impossible ; and a bill was thereupon filed, praying for compensation for the loss sustained by reason of the mistake in thus allotting the devised lot. The Court under the circumstances ordered a valuation to be made of the resid- uary estate, at its present value, one-third of which with interest from the date of the first division was made to be contributed ratably by the other residuary devisees, or their representatives, or if desired by either of the parties with an account of rents and profits received. Slinson v. Moore, 10 Grant, 94. See Will. RESTRAINING EXECUTION. Sbs Injumotion. under a decree, the imitted to ask for a lent. On a motion sd bid was granted, id conditions of sale the plaintiff of the Fraser v, Bcns,\ ation is such a resi- 14 and 15 Vict,ch, Kennedy, 2 Grant lot ; the residue of } directed to bedi' igst whom, after the 1 which division by vhich was allotted to re, who devised the ;ake which had beei nary estate to have le of the other resi- lotted to them, bj possible ; and a bill the loss sustained iscd lot. The Court e made of the resid- which with interest contributed ratably atives, or if desired ind profits received. N. f^ EQUITY DIGEST. 631 BESTITUTION OP CONJUGAL RIGHTS. See Alimony. RESTS. See Bxecutoe—Mortoagb— Principal and Agent. RETAINING PEE. No retaining fee will be allowed to a solicitor who is himself also counsel. In Re MrBride. Farley v. Davis, 2 Cham. Rep,, 153. REVERSION. See Rbverbioner. REVERSIONER (AND TERMOR.) The mortgagee of a term of years being in possession of the mortgaged estate, will, at the suit of the mortgagor, be restrained by injunction from felling timber on the mortgaged premises, although the mortgagee may have obtained the consent of the reversioner to what he is doing. Chisholm r. Sheldon, 1 Grant, 318. 2. Qucerc. Whether th^ doctrine applicable in England between termor and reversioner in respect to felling timber, can prevail as to an estate in this country, the beneficial enjoyment of which is ordi- narily attained, and can generally be obtained only through the de- struction of the growing timber ; and whether the doctrines of the Common Law, as to growing timber, can be applied in all their extent to forest lands in the country. Ih. 3. Although the number of persons in this country in the position of expectant heirs and reversioners is but small, still, the same rule ap- plies here as in England, the principle of the doctrine being that such persons need to be protected against the consequences of their own improvidence in dealing with designing men. Morey v. Trotten 6 Grant, 176. Where the tenant tor life was the father of the reversioner, but the ion was not dependant on him, and had no expectation from him, •nd both were illiterate persons : held, that the father's knowledge of a Bale of the reversion by the son did not render such sale unimpeaoh* able. lb. wm^ 532 EQUITY DIGEST. REVIVOR. Amending, 1. Infuit heir to plAlntUf , 2. Taking account alter death of defendant, 8. When xuit in Court, 4. Death of lole plaintiff, 4. Order pro con, 9. Petition of, 7. l^Aviending. Where any of the parties to a suit die, and it is necessary to bring the representatives of such deceased parties before the Court, an or- der to amend the bill for that purpose will be granted. Smith v. Meredith, 2 Grant, 691. 2 — Infant heir to plaintiff. Where the plaintiff in a redemption suit died before the decree pronounced had been drawn up, leaving infants his real representa- tives. Held, that before an application to revive could be made, the decree must bo drawn up, and a guardian ad litem appointed. Beam- ish V. Pomeroy, 1 Cham. Rep., 32. 3 — Taking accounts after death of defendant. In a foreclosure suit an account of principal and interest had been directed to be taken before the decree was drawn up, before this was done the defendant died, and an application was now made by the plaintiff to be at liberty to take the usual account, upon the facts stated in the affidavit of the plaintiff. .The decree it was alleged would bear date prior to the death of the defendant, and as the bill had been taken pro confesso against the defendant, the account id the event of his being still alive, would have been proceeded with behind his back, the orders of 1853 providing that all proceedings after a bill had been taken pro confesso, may be taken ex parte. But the Chancellor, " drawing up a decree which had been previously pro- nounced after the death of one of the parties, is a proceeding that would be clearly regular ; but so far as my recollection of the cases goes, I do not think that any authority will be found warranting us in proceeding to take an account after the death of the party who is bound to pay. The point however is one of considerable importance to suitors, and perhaps it would be well to take the opinion of the full Court upon it." Galhraith v. Armstrong, 1 Cham. Rep., 33. 4 — When suit in Court — Death of sole defendant before hiU served. If a sole defendant dies before the bill is served upon him, there is no suit in Court; the plaintiff therefore cannot revive, and if he take out an order to revive, under such circumstances, it will be dii< oharged with ookits. Watson v. Ham, 1 Cham. Rep., 295. ntiff.i. necessary to bring the Couit, an or- ranted. Smith v. before the decree lis real representa- sould be made, the appointed. Beam- it. 1 interest had been ip, before this wag now made by the nt, upon the facts ree it was alleged it, and as the bill at, the account in m proceeded with at all proceeding! ken ex parte. But een preyiously pro- a proceeding that otion of the cases and warranting us ' the party who is lerable importance le opinion of the Dham. Rep., 33. idant before bill 1 upon him, there t revive, and if he ices, it will be dii* 3p., 295. EQUITY DIGEST. 533 B— -Death of sole plaintif. Where a sole plaintiff in a foreclosure suit dies after decree, his devisee is entitled on praecipe to the common order to revive. Ged- des V. Allan, 1 Cham. Rep., 336. Q— Order pro confesso. Where a defendant becomes insolvent, after the service of the bill upon him, but before the time for answering expires, and the suit is thereupon revived against the assignee in insolvency, it is necessary to serve the assignee with the bill as well as with the order to revive, or an order pro confesso cannot be obtained. Smith v. Lines, 1 Cham. Rep., 398. 7—Petitio7i of. It is not necessary to file a petition for leave to present a petition in the nature of a bill of review, one petition under the general orders answering the double purpose of the bill of review and of the motion for leave to file it, under the former practice. Buggan v. McKay, 1 Cham. Rep., 380. See DisMissiNa Bill. REVOCATION, BY WILL. See Aqkeement fob Sale. REVOCATION OF SUBMISSION. See Award. REVOKING APPROPRIATION. See Crown. RIGHT OP RE-PURCHASE. The owner of real estate conveyed the samo absolutely, receiving back a bond declaring the conveyance to be in trust to receive the rents, &o., and account therefor to the grantor ; and in the bond was reserved a right to the obligor and his heirs, to purchase the property. Upon a bill filed to set aside this agreement as infringing the rule against perpetuities, and for an account of the rents and profits re- ceived; Held, that if even the agreement were within the rule, it was good for the life of the grantee, and an account of rents was di- rected, reserving the question of costs until after report, the bill not allying any applioations for an account. Kenrick v. Bempsey, 5 Grant, 684. m. 534 EQUITT DIGEST. RIPARIAN PROPRIETORS. 1 An averment that the soil of a stream, is vested in the crown, does not imrort that the crown has therefore any power to interefere with the rights of riparian proprietors. Attorney General v. Mc. Lavghlin, 1 Grant, 34. Convey: "^ce cfpart of land and mill on a stream to one purchaser and part to another ; what they could claim under purchase, effect on other riparian proprietor. Lowering of stream, &c. Hickman v. Lawson, 7 Grant, 494. 2 The plaintiff and defendant were owners of mills on the same stream, the defendant being lower down than, and erected before that of the plaintiff. By the erection of the dam of the defendant, it waa alleged that the plaintiff's mill privilege was affected injuriouslj, Although it was shewn that the plaintiff in order to work bis mill, was compelled to dam back the water, so as to overflow lands higher up, the property of the defendant, the title to which he had obtained after the commencement of this suit. The Court, (Estcn, Y. C*, dissenticnte,) held the plain tiff was entitled to an injunction, restrain- ing him from damming the water back upon the plaintiff's property. Graham v. Burr, 4 Grant, 1. See Easement, (3.) — Injdnction, ♦ ? ROAD COMPANIES. The consent of the Governor in council i^^ not iccces^.^ .o justify a road company, formed under the statut' » iot., oh. 84, in tak- ing possession of a public highway, the i .y of the croF for the purpose of making a road over it, Tli \itorney Genrmi r. The Bytown v.nd Nepean Road Company, 2 Grant, 6"H. See Arbitration. EQUITY DIGEST. 6a5 SALE. 01 inlante* tKtate, 11. Conflrmation of report, (1). Juriidiot!on,(3). Statute 12 Vie, 0.72,(4). When of small value, (2). Under deuree, 12. Abortive re-sale, (4). Advertisement puttiuer, (0). In default of payment, (5). Parties to deed, (1). Paying: money into court, (2). Vesting order, (3). Under fl fa, 13. Advertlainif , (3). Against lands previously contracted for, (1) Set aside, (2). Under mortgajfe, 14. In lieu of partition, 15. Of property of religious houses, 16. Of equity of redemption, 17. By sheriff, 18. At midervalue, (4). Of partner's interest, (1), Of term of years, (2). Uncertainty of estate offered, (3). Practice as to, 20. Conflrmation of, 8. Injunction, 0. Judgment creditor by, 1. Mortgage on separate estate, 5. Mortgagor and mortgagee, 19, Kegistration, priority of, 8. Sotting aside, 4, 0. With riglit to repurchase, 7. For taxes, 10. Assessment of several lots in bulk, (5). Assessors, (0). Collectors, (7). Duty of sherilf , (2). Misconduct of, (1). Sheriff, (8). Set aside, (4). When considered premature. (3). 1 — Judgment creditor. In suits by judgment creditors for the sale of the debtor's proper- ty, the debtor is entitled, like a mortgagor, to six months to redeem before the sale takes place. The sale prescribed by the statute, 43 Qeorge III., c. 1, is not applicable to the practice of this Court. White V. Beasley, 1 Grant, 660. 2 — Wliere legal estate outstanding. A sale of real estate had taken place in pursuance of a decree made in a creditor's suit. It appeared that the legal estate remained in a debtor's vendors, to whom there was still owing a part of the purchase money agreed to be paid by the vendee. The Court, upon motion of the parties interested, ordered the vendors, upon payment of the amount due to them, to convey to the purchaser under the decree. Heal V, Harper, 2 Grant, 695. 3 — Conjirmatlon of, practice as to. The signed contract and other papers mentioned in section 9 of the 36th of the general orders, must, in order to the confirmation of a sale, be filed with the registrar whether the sale has been conducted before a judge in chambers or the master of the Court. PatUrson v, Stanton, 4 Grant, 100. i— Setting aside. A building society having a mortgage containing a power of sale on default, advertised for sale the mortgage property, and at the auction it was stated by the auctioneer that the price to be paid for the premises was to be over and above the amount of certain other mortgage debts against a portion of the same estate. At the auction one of (he directors, who was also soUoitor to the society, bid off the 536 EQUITY DIGEST. property in his own name, though it afterwards appeared that he had acted only as agent for a third party ; after the sale the purchaser bought up the interest of the other mortgagees who had commenced proceedings to foreclose, carried on the foreclosure suit and obtained a final decree of foreclosure ; no notice being taken of the fact of the money having been paid to the mortgagees. Before this order was obtained however the mortgagor claimed to have the surplus of the purchase money, over and above the amount of the mortgage an- dor which the property was sold, and filed a bill for that purpose, when the agent of the purchaser swore that he had not intended to bid the sum he did, in addition to the amount of the mortgage paid off. The Court set aside the s.\le, and gave the mortgagor leave to redeem ; the Chancellor dissenting, who thought the sale already made should be carried out, and the surplus of the purchase money paid to the mort- gagor. Montgomery v. Ford, 5 Qrant, 210. 6 — Mortgage on separate estate. In a suit for the sale of mortgage property, it appeared that a mesne incumbrancer held a mortgage on other property of the mortga- gor, the Court ordered an account to be taken of vfuat was due on both securities, and in default a ^alc ; but in the event of r. sale tak- ing place the premises would be conveyed to the purchaser, relieved of any lien of such subsequent mortgagee. Merritt v. Stephenson, 7 Grant, 22, 6 — Steamboat — Injunction. On the agreement for sale of a steamboat, the vendor delivered possession to the vendee, and executed a covenant binding himself to transfer the vessel with h^r machinery and furniture to the purchaser absolutely, upon payment of the balance of purchase money by cer- tain instalments, and if default were made in payment of any portion thereof, it was provided that the vendor should be at liberty to re- sume possession of the vessel with her machinery and furniture. The Court granted an injunction restraining the purchaser from remov- ing the machinery from the vessel, so long as any part of the purchase money remained unpaid. Lavghton r. Thompson, 7 Grant, 3U. 7 — With right to re-purchase. On application by the owner of real estate to effect a loan upon the security thereof, the p irty applied to refused to advance the money, but offered to purchase the land, which proposal the owner refused to accede to. About two weeks afterwards, upon the parties again EQUITY DIGEST. 537 ni(|etiag, the owner conseDted to sell for £400, provided the purchas- er would give a bond to reconvey on payment of £512 at the end of two years, which was agreed to, and a deed and bond executed accord- ingly- When the time for payment was approaching, an application wasmtde to extend the time for payment, to which the purchaser as- lentedon certain terms, which were not finally carried out. Afterwards the purchaser sued the vendor, upon his covenant for good title, to which was pleaded a plea of usury, butwhich the jury, by their verdict, negatived, under these circumstances the Court held that the trans- action VM one of purchase with a right to re-purchase, and not of mortgage. BuUen v. Renwick, 8 Grant, 342. I^With right to re-purckase. Where after a treaty for loan or real estate, the owner thereof con- veyed the same absolutely to the person to whom he had applied for laoh loan, receiving back a bond conditioned to re-convey the prop- erty, on payment of a certain sum at the end of two years, and made default in such payment ; a bill filed alleging the transaction to have been one of loan and security merely, and praying redemption was dismissed with coats. On a re-hearing, this decree was reversed, and tac deed declared to have been made as security only ; the bond to re-convey containing an undertaking by the vendor to pay the stipulated amount, and it appearing that the value of the property greatly exceeded the sum paid for the alleged purchase thereof; but under the circumstances tho Court charged the mort- gagee with such rents and profits as were actually received, or an occupation rent, if in actual possession, not with such rents as might have been received and allowed him for repairs and permanent improvements. BuUen v. Rentoick, 9 Grant, 202. 8 — Priority of registration. Held, that the prior registration of a mortgage with a power of ■ale, enabled the mortgagee in the proper exercise of such power to aell free from the claim of a purchaser, prior in point of time, but who had n^leoted to register his conveyance. Daniels v. Davidnon, 9 Grant; 173. 9— Setting aside. Where oat of an audience or attendance at a sale of twenty-five or thirty persons, three or four were induced to refrain from bidding^ because they were informed that a person who was attending at the Mle intended to buy the property for the family of the debtor ; the Oourt rifuied to set aaide the Mle whioh was made to snoh person at 3v '-■'t iSftf m 538 EQUITY DIGEST. \i.> 1 a small advance upon the upset price, although the person purchai- ing did so for the benefit of persons other than the family of the debtor. Brown v. Fisher, 9 Grant, 423. The *' highest bidder" at an auction sale is the " purchaser," under the general orders of the Court, and the omission to declare him the purchaser will not deprive him of his position, The omii. sion in an advertisement of sale to state that the premises are leased advantageously, will afford good grounds for staying the sale ; but an application for such purpose should be made promptly, and before sale. Where the plaintiff who had the conduct of the sale, assigned his in- terest, and an order to revive making the assignee a party, was a few days before the sale taken out, but not served, and an order taken to substitute for the plaintiff's solicitor the solicitor of the assignee, and the case went on under the control of such new solicitor, the Court set aside the sale, although reluctantly, as great delay had been shewn on the part of the mortgagor in making the application, and he was, under the circumstances, ordered to pay the costs in- curred by the new sale. McAlpine v. Young, 2 Cham. Rep., 171. 10 — For taxes — Misconduct of sale. (1) At a sale of lands for wild land taxes, one of the sherifiTg of- ficers conducted the sale, at which he knocked down, without any competition, to another officer of the sheriff, a lot of land worth about £350 for rather less than £7 lOs., which lot was subsequentlj, with the assent of the sheriff, entered in the sales book in the name of the party who had conducted the sale, for the purpose of enabling the person to whom it had been knocked down to cheat his creditor! Upon a bill filed to set aside the deed executed by the sheriff, it was shewn that by arrangement amongst the persons attending the sale it was understood a lot should be knocked down to each one in turn, in pursuance of which the sale in question was effected. Under these circumstances the Court set aside the sale with costs as against the person to whom the conveyance was made. Masaingberd v, Mon- tague, 9 Grant, 92. Duty of sheriff's officers. (2) The duty imposed apon sheriffs at sales of lands for taxes is to sell such portions of the land offered as the sheriff may consider it most for the advantage of the owners thereof : where, therefore, a sheriff so neglected his duty in this respect that uL ass!* for taxes, very valuable lots of lands were knocked down for trifling amount of taxes, in pursuance of an agreement to that effect, entered EQUITY DIGEST. 539 le person purchai- the family of the the "purchaser," mission to declare jitioD, The oiiii8< premises are leased g the sale ; but an :ly, and before sale, ie, assigned his in- a party, was a fev id an order taken r of the assignee, new solicitor, tbe 8 great delay had ig the application, pay the costs in- I Cham. Rep., 171. »of the sheriff's of- lown, without any )f land worth about was subsequentlj, book in the name lurpose of enabling cheat his creditori, the sheriff, it was tending the sale it ach one in turn, ia ted. Under these costs as against the isaingberd v, Mon- sales of lands for IS the sheriff may rs thereof: when, spect that alasali d down for trifling that effect, entered into amongst tbe bidders, some of which lands were purchased by bailiffs in his employ, and with his knowledge ; the Court, in dis- missing the bill filed to set aside one of the sales to his bailiff as against the sheriff, refused him his costs. It is not sufficient that the sheriff does not participate for. his own benefit, lb. Where sale considered premature. (3.) The wild land assessment was unpaid Tor the years 1853, 4, 5, 6, and 7. On the 25th of February, 1858, the treasurer issued his warrant to sell for arrears of taxes : and on the 13th of July, fol- lowing, a sale was effected by the sheriff. On a bill filed by the own- er of the land to set aside this sale, held, that no portion of the taxes was due for five years, within the meaning of the act. Ford v. Proudfoot, 9 Grant, 478. Set aside. (4.) Where a Fiale of land for wild land taxes was effected, and the taxes assessed included one year's assessment, which had been paid, the sale was set aside, notwithstanding the fact that the number of years for which the assessment was in arrear was greater than was required to render them liable to sale. Irwin v. Harrington, 12 Grant, 179. Assessment of several lots in htdk. (5.) Where three separate and distinct lots were rated in bulk by the assessor, and were sold for arrears of taxes, the sale was set aside, and the purchaser having stated at t'le sale that his object in buying was to secure the property for the person entitled, and afterwards claimed to hold the land for his own benefit, he was ordered to pay the costs of the suit. Christie v. Johnston, 1 2 Grant, 534. Assessors. (6.) Where assessors or officers of municipalities omit to follow the plain directions in acts of parliament, and any loss thereby arises to the municipality, it would seem that the party causing such loss would be answerable therefor to the municipality, lb. Collector. (7.) To prove payment of taxes it is not necessary to shew that the collector was duly appointed, it is sufficient to shew that he acted and was acknowledged as such. To a suit by an owner to set aside a sale for taxes, the plaintiff offering to re-pay the purchase money, with interest, the corporation wm 540 EQUITY DIGEST. of the oouDty municipality is not a necessary party. Smith v. Red. ford, 12 Grant, 316. Sheriff. (8.) At a sale for taxes, where less than the whole lot is sold, the sheriff should designate in some way the portion sold or offered for sale, so that bidders may know what portion they ar.3 bidding for. Where a sheriff sold 185 acres out of 200 for t ixes, and gave a certificate merely describing the land sold as the West part of the lot comprising 185 acres, and no further intimation was given by the sheriff of the portion of the lot he was to convey until the deed vu executed, the sale was held invalid. Knaggs v. Ledyard, 12 Grant, 320. 11 — Of infants' estate (under 12 Vic. — Practice) — Confir- Tnation of report. (I.) By an order in an infancy application under 12 Victoria, it was referred to the master to take an account of the value of the crops grown on the premises during a given year, and of what had be- come thereof, and how much had been converted by one JO to hii own use, beyond one-third thereof; and it was ordered that said J on service of the order and report, should pay into Court the amount found due by the master. Held, that the order being final as far u J was cdncerned, the report made in pursuance thereof did not re- quire confirmation. Re Yaggie, 1 Cham. Rep., 168. When of amall value — Practice. (2.) It is the practice now where the estate of infants is of small value, in order to save expense of a sale by auction, to direct an ad- vertisement to be inserted in a newspaper, asking tenders addreased to the registrar to be made for the property. Re Hansell, 1 Cham Rep., 189. Jurisdiction — Statute 12 Vict, 72. (3.) Where property was devised by a testator to his widow for the maintenance and raising of his family, until the coming of age of the youngest child, and then to R, one of his sons charged with cer- tain payments at intervals to the widow and other children, with a provision for the substitution of another son in the event of R dying under age or without issue, held, Ist that the Court had no jurisdiction to order a sale or mortgage of such property ; the Court having no power under 12 Vic, ch. 72, to dispose of the real estate of infanta against the provisions of any last will, by which such estate was de f. Smlh V. Red- Lole lot is sold, the sold or offered for ara bidding for. tiles, and gave a Vest part of the lot was given by the ID til the deed wu jedyard, 12 Grant, ^actice) — Conjir- ider 12 Viotoris, it )f the value of the and of what had be- by one JO to hii iered that said J > Court the amount )eing final as far u thereof did not re- 168. f infants is of smail on, to direct an ad- tenders addressed Hansen, 1 Cham )r to his widow for le coming of age of charged with oer- ir children, with a e event of R dying had no jurisdiction ) Court having DO al estate of infanta Buch estate was d« '^\ EQUITY DIGEST. 641 vised to suoh infants. 2nd, that such property was not the real es- tate of the infants within the meaning of the act. Re CalHcott Infants, and 12 Vic, ch. 72, 1 Cham. Rep., 182. Stai^ce 12 Vic. 72. [4.] All applications under 12 Vic, c 72, for the sale of infants' estate must come on before the same judge. In Re Hansell, and 12 Vic. 72, 1 Cham. Rep., 205. 12 — Parties to deed. [1.] A mortgagor or his heirs are not proper parties to a convey- ance of the estate to a purchaser at a sale under the decree of the Gourt. Ross v. Steele, 1 Cham. Rep., 94, PayiTig purchase money into Court. [2.] A purchaser of real estate at a sale under the decree of the Court will not be ordered to pay the amount of his purchase money into Court, until the title has been accepted or approved of. Crooks V. Street, 1 Cham. Rep., 95. Vesting order. [3.] Where the plaintiff who was the mortgagee in fee of lands sold under the decree, had become the purchaser thereof; an order vesting the lands in the plaintiff as such purchaser, although ac- quiesced in by the defendant, was refused. Bowen v. Fox, 1 Cham. Rep., 387. Abortive sale — Re-sale. [4.] Where property has been put up for sale under an order of the Court, but the sale has proved abortive for want of bidders ; the property may be advertised and put up for sale again, without furth- er order. Sherwood v. Campbell, 1 Cham. Rep., 299. Sale of lands in default of payraent. [5.] A decree v^d been pronounced in favor of the plaintiff, with costs, declaring him entitled to maintenance out of certain lands, and directing him to be paid the amount found due, or in default a sale. In drawing up the decree, costs as between solicitor and client*were ordered to be paid to the plaintiff; and default having been made in payment of the amount found due, Cattanch, for plaintiff, now moved for an order absolute to sell the lands in question. The Chancellor under the circumstances refused the application. McDuffie V. McDufie, I Cham. Rep., 41. ii3 Vi 542 EQUITY DIGEST. Advertisement for sale — Puffing. [6.] AdYertiiementB for sales under the direction of the Court should be as short as possible, the short style of the cause, and a short description of the property and improvements is sufficient, and no meiely formal parts, such as convey no information to intending pur- chasers, should be inserted therein. The practice of puffing anim- adverted upon. Baxter v. Finlay, 1 Cham. Bep., 230. .An advertisement for the sale of property under decree, should set out all the improvements on the property, otherwise it will be re- ferred baek to the master to re-settle the advertisement, and appoint a new day for sale. Reward v, Ridout, 1 Cham. Rep., 244. 13 — Umderfifa (agai:i8t lands previously contracted to he sold.) [1.] Where a debtor had entered into a binding contract for the sale of his land, before execution against his land had issued. Held, that his interest as vendor was not saleable under the execution. Parke v. Riley, 12 Grant, 69. See same case in appeal, 3 E & A., 215. Ven. ex. issvbed on return to spent lurit — Sale by sheriff set aside in equity at instance of another judgment creditor. (2) A fi fa lands, having been lodged in the sheriff's office, wu allowed to expire without anything being done under it, either by seizing or offering for sale the lands of the debtor. Afterwards a new sheriff being appointed, this, with other process, was handed over to him and he proceeded formally to offer for sale the lands of *><«> execu. tion debtor, and made a return of " lands on hand for want of buy- ers," whereupon the plaintiff sued out a venditioni exponas and fi fa residue, under which the lands which had been previously offered for B&le were sold, and a conveyance thereof made by the sheriff. Upon a bill filed by another judgment creditor, the Court below set aside the sale and ordered the deed to be cancelled, the ven. ex. and fi fa residue being, under the circumstances, absolutely void, which uocree was affirmed on appeal. Gardiner v. Juson, 2 Grant E. k A. B., 188. Advertising. (3) The direction to the sheriff to advertise for three months, held to be directory and not mandatory — and where a sale had taken place after being advertised for a shorter period, the Court, on appeal from the referee, refused to treat it as an irregularity which rendered the title under it void. Douglass v. Conner, 1 Cooper's C, & P. B>, 88. r^~ EQUITY DIGEST. .543 ion of the Court cause, and a shoit Buffioient, and no t to intending pur- of puffing anim- 230. ler decree, should imsQ it will be re- ment, and appoint Bep., 244. contracted to h ng contxact for the had issued. Held, ler the ezeoution. 'ale hy sheriff sd dgment creditor. sheriffs office, was inder it, either by Afterwards a new 'as handed over to ands of ♦^o execu. for want of buy- exponas and fi fa eviously offered for the sheriff. Upon rt below set aside e ven. ex. and fi fa void, which uocree ntE.&A.R.,188. for three months, re a sale had taken le Court, on appeal ity which rendered 5r'sC.&P.R.,88. 14— trader mortgage. On moYing for an order absolute to sell for default of payment of the sum found due by the master, it need not be shewn that any incumbrancer besides the plaintiff attended at the time appointed by the master for payment of the se\eral incumbrancers. Irvine v. Whitehead, 1 Cham. Rep., 10. 15 — In lieu of partition — Con. stat. U. C, c. 86 — Past maintenance of infant. This Court will not allow to a relative of an infant money expend- ed by such relative in past maintenance of the infant out of the pro- ceeds of land of the infant sold in lieu of a partition under con. stat. U. C, c. 86. Kellar v. Tache, 1 Cham. Rep., 388. Ig — Of property of religious institutions. To effect a sale by trustees under the act respecting the property of religious institutions in Upper Canada, it is essential that all the requirements of the statute should be complied with, and, therefore, that the public notice should state the terms of the intended sale. In re the Second Congregational Church Property, Toronto, 1 Cham. Rep., 349. 17 — Of equity of redemption. Held by all the Court, that an equity of redemption of an estate of an inheritance cannot be sold by the sheriff under a common law process. Smith v. Simpson, 1 Orant, E. & A. R., 9. But see "equity of redemption" and statute making equities of redemption salable. 18 — By sheriff— Of partner's interest. (1) Where a sale is made under an execution issued against one partner, the assignee is only entitled to such partner's interest or share in the assets for payment of the partnership debts, and that too even when the debt originally was due from the partnership to the execution creditor. Partridge v. Mcintosh, 1 Grant, 50. Of term of years. (2) A term of one thousand years was created by way of mort' gage, and subsequently the interest of the reversioner was sold under an execution against his lands. Upon a bill filed by a mortgagor to redeem, held, that the sale by the sheriff did not carry the equity of redemption, and that the mortgagor was entitled to redeem. Chis* holm V. Sheldon, 1 Grant, 108. -t. 644 EQUITY DIGEST. Uncertainty of estate offered. (3) Where a sheriff offered for sale, under an execution againit lands, the interest of the debtor in certain lands, whatever that in- terest might be, not stating what it was, although the means of ascer- taining what the interest itself was were convenient, and the intereit itself was actually known to the judgment creditor and partially knovn to the sheriff, but not mentioned to the audience, the sale was get aside because of the uncertainty of the interest or estate put up for sale ; and the Court also held that the sale could not be upheld for the further reason that the interest of the debtor was a life estate which he had conveyed away absolutely though for the purpose of a security only, and therefore, that the statute for the sale of equities of redemption did not apply, the right to redeem not appearing on the face of the conveyance. FUzgibbon v. Duggan, 11 Grant, 188. At undervalue. (4) Where an execution creditor purchased property at sheriff's sale at one sixth of its value, held, that effect could only be given to such a transaction as a security for the debt and costs and not as an absolute purchase. Kerr v. Bain, 11 Grant, 423. The plaintiff had purchased at sheriff's sale, for a small sum, the interest of his debtor in property which the debtor had previouslj mortgaged for a largo sum, the validity of the mortgage or the amount due upon it being doubtful, the Court declined to enforce the purchaae as absolute, but the plaintiff submitting to have his deed from the sheriff treated as a security for his debt, the Court made a decree on that footing. Malloch v, Plunkett, 11 Grant, 439. Where property worth £1,500 had been sold at sheriff's sale for £90 6s in consequence of the title being disputed, the Court refused to give effect to the sheriff's deed as an absolute purchase. Chalmers V. Pigott, 11 Grant, 475. See Equity of Redemption, Fraudulent Conveyance, Lands, Statute of Frauds, Undue Influence. 19 — Mortgagor and mortgagee. A sale will not be ordered until the mortgagor has had the usual tim« to redeem. Tru$t and Loan Company v, Reynolds, 2 Cham. Rep., 41. 20 — Practice as to. See Taylor's orders as follows, order for, in foreclosure suits, 108; how obtained, 1G8, 109 ] in what oaaei, 109 ; condition on wbkli EQUITY DIGEST. 545 ezeoution againit vhatever that in- lie means of ascer- if and the interest id partially haom the sale was get estate put up for tot be upheld for : was a life estate the purpose of a ! sale of equities of appearing on the Qrant, 188. roperty at sheriff's d only be given to osts and not as an r a small sum, the or had previomly gage or the amount brce the purchaae his deed from the irt made a decree 39. sheriff's sale for the Court refused chase. Chalmers ice, Lands, Statute las had the usual leynoldSf 2 Cham. !lo6ure suits, 108; mdition on whieh granted, 110; personal order on, 110; direction decree for, 112; judge or master to settle conditions, 112 ; under decree, how conduct- ed, 117; original decree to bo used, 117; varied by practice, 117; appointment to be served, 117; draft advertisement to be carried in ; 117; what to contain, 118; how settled, 118; how published, 118; upset price or reserved bidding may be fixed, 118, 119 ; agreement to be signed by purchaser, 119, 212 ; master to settle mode of, in his office, 1G3 ; proceedings in suit for, in master's office, 196; conduct of, 118, 207 ; how objected to, 119 ; what necessary to set aside, 120 ; how confirmed, 120, 211 ; master's report on, 211 ; re-salc, terms of, 120; enquiry into titles on, 121 ; standing conditions of, 122, 237, 327; indorsment on bills in suits for, 221; decree on, obtained on praecipe, 221 ; prayer for, in mortgage bill, 275. See Agreement for Sale — Foreclosure — Infants — Judg- ment — Creditors — Mortoaqe — Re-salk. SALE OF GHOVVING TIMBER. Seb Vendor's Lien. SALE BY EXECUTORS TO LEGATEE. See Will. SALE OP REVERSION. See Equity op Redemption. SAW LOGS. Saw logs cannot be intended p; ima facie, to be of " peculiar value" without any evidence that they are so, but they are more likely to be of peculiar value than most other descriptions of chattels, and specific relief may be given with respect to them in more instances than al- most any other sort of chattel property. The relief however must be applied for promptly. Flint r. Corby, 4 Grant, 45. The Court in a proper case will compel the specific performance of aa agreement to manufacture and deliver saw logs. Fuller v. Richmond, 4 Grant, 657. The Court will order specific delivery of saw logs, when they are •hewn to possess a peculiar value to the plaintiff, and can be identi- fied M thoM olumed by the plaintiff, notwithstanding they have been 3w !,■ 'i r I ST 546 EQUITY DIGEST. intermingled with logs belonging to other parties, Farwall v, Wallbridge, 6 Grant, 634. See Injunction. SEAL, WHAT A SUFFICIENT. See Will. SEAL OF COURT. See Certificate of Judgment, SECOND SUIT. For same purpose — Costs. A bill having been filed by one of the cestui que truslent of a settle- ment to enforce the trusts thereof, the defendant denied that the plaintiff had any interest under the settlement ; thereupon, by the advice ot counsel, a bill was filed for the same purpose by another of the cestuis que trustenl against whom the objection did not apply, and he being an infant the plaintiff in the first suit was named as his next friend. Both suits proceeded to a hearing, when the Court consolidated them, making one decree as prayed, and giving the plaintiff in the second suit his costs. Roseburgh v. Fitzgerald, 13 Grant, 386. SECONDARY EVIDENCE. See MoaxGAQE. SECRET BARGAIN. See Principal and Surett. SECRETARY. See Appeal. SECRETARY'S ORDER. Appealing from secretary's order — Re-instating bill. A party cannot use affidavits not used before the secretary, or make a new case on an appeal, nor will the Court entertain a motion to re-instate a bill based on grounds which might have been shem in resisting a motion to dismiss. Bank oj Montreal v. Wilton, 2 Cham. Rep., 117. ies, Farwall v, • EQUITY DIGEST. SECURITY FOR COSTS. 547 Suetng on bond for, 1. Judge bound to take notice of territorini division, 2. SUt. 22. Vic, 8. In «ult to restrain proceedings at law, 4. Government officer, 6. For costs of a prior suit at law, «. Insolvent plaintiff, 7, 14. PUlntiff retumin)? to jurisdiction, 8. Plaintill's residence not known, 20. X—Smincj on bond for. Bond for, in appeal, 9, 22, Infant plaintiff, 10, 17. Nextfriond, 11, Itf. Setting asiilo, 12, 18. Discharging order for, 13. Form of bond, 1,5. Practice as t«, 23. Objection to bond, 10. Payment of deposit out of Court, 21. On an applioatioo bj the defendant to be at liberty to sue on the bond given in this case for scourity for costs, the plaintiff being resident out of the jurisdiction, Spragge, V. C, required the de- cree to be produced to shew that the defendants were ordered to re- ceive the costs. Rolph v. Topping, 1 Cham. Rep., 14. On an application for liberty to sue upon the bond given to secure the payment of the costs of an appeal brought by the defend- ants against a decree of this Court ; Esten, V. C, required the party moving to shew a demand from and refusal of the costs by the sureties named in the bond, before making the order asked. Stokes V. Crysler, 1 Cham. Hep., 14. ^JvA(je hound to take notice of terntorial division of Province. The bill in this cause stated the plaintiff to be resident in the Par- ishofRigaud, in the County of Vaudrenif, and an application had on a previous day been made for an order for security for costs; a doubt was suggested whether the Court can judicially take notice that Vaudreuil was out of the jurisdiction ; but no:v the Chancellor thought that by the Provincial Statute 16 Vic, ch. 152, the whole Province having been set off into territorial divisions, the Court was bound to take notice of such sub-divisions of the country, as the act makes, and that therefore the security for costs should be given. McDonald v. Dicarie, 1 Cham. Rep., 34. ^Stat. 22, Vic. The recent act [22 Vic, ch. 33] has effected a material change in the practice of this Court, as to granting or refusing security for costs. The fact that the plaintiff has not any fixed place of abode within the Province, will not be sufficient to warrant an order for that pui^pose, where it is shewn that ho has property witbio the jurisdiction. White V. White, I Cham. Rep., 48. Ill if! i m 548 EQUITY DIGEST. 4 — In suit to restrain proceedings at law. Where a suit is brought in this Court to restrain proocediDgs at law, the plaintiff will not be ordered to give security for costs, though resident out of the jurisdiction ; and that too notwithstanding the bill may ask for relief other than the injunction. Manley r. Wil liniMy 1 Cham. Rep., 48. 5 — Government ojjicer. The mere fact of a plaintiff being in the service of the crown, and absent from the jurisdiction of the Court, is not sufficient to exempt him from giving security for costs ; to do so it must be shewn that he is absent from his domicile in the service of the crown. Dicken- son V. Diiffill, 1 Cham. Rep., 108, 6 — Security for the costs of a prior suit at law. The plaintiff (a vendor) had sued at law to recover the purcbaK money duo under an agreement for the sale of lands, but had failed, and the costs of the action were given against him ; the defendant [the vendee] issued ajifa goods to recover the costs, which was returned nulla bona. Afterwards the vendor filed his bill in equity to enforce specific performance of tho contract. On motion of the defendant in the suit, the proceedings in equity were stayed till security for the costs at law should be given. FoUis r. Todd, 1 Cham. Rep., 288. 7 — Insolvent plaintiff. Where a bill was filed by an assignee in insolvency against B, for the indemnification of the estate in respect of a claim by 0, which it was alleged that B should pay, and it appeared that the plaintiff was himself an insolvent person, that there were no assets whatever of the estate he represented, and that the suit w&s brought at his instigation, risk and expense, and for his benefit. Held, that the plaintiff must give security for costs. Mason v, Jeffery, I Cham. Rep., 379. 1 Cooper's C. & P. R , 14. 8 — Plaintiff returning to jurisdiction. Where a plaintiff, who when bill filed was out of the jurisdiction, and had been ordered to give security for costs, afterwards returned with- in the jurisdiction ; but it had appeared that he had no business, and no intention of entering into any, no fixed place of abode, no house and no family or ties to bind him to the Province, and the Court was of opinion that the return of the phiintiff was merely to get rid of the order for seourity, the Court declined to rescind it, [il^rsh v. Heard I Cham. Rep., 390. 1 Cpoper's C. & P. R., 62, EQUITY DIGEST. 549 Where a plaintiff who has been ordered to give aecurity for costs returns within the jurisdiction to reside permanently, the order will be discharged. Harvey v. Smith, 1 Cham. Rep., 392; 1 Coop- er's 0. & P. R., 51. Q— Security for nosttt of appeal, houxln for— Style of cause. A bond for security for costs of appeal should be styled in Court of Error and Appeal. The style of the cause in Court below, if adopt- ed, should be the style in full — and the parties should be described 08 they respectively become Appellants or Respondents, but to carry out the view of the Court, as intimated in Harvey v. Smith, 2 Orant, B. &> A., 480, they may be given in the same order as in the style of the original cause. Weir v. Mathieson, 2 Cham. Rep., 73. 10 — Infant plaintiff. An infant out of the jurisdiction petitioning for relief, will be re- quired to give security for costs. Slinsnn v, Martin, 2 Cham. Rep., 86. 11 — Next friend. Where a bill is filed by a next friend, if he be not a person of sub- stance, the plaintiff will be required to give security for costs. The proper order in such case seems to be to stay proceedings until the next friend be changed, or security given. Leishman v. Eastwood^ 2 Cham. Rep., 88. 12 — Setting aside. Ifa plaintiff residing out of the jurisdiction is shewn to have prop- erty in Upper Canada an order for security for costs made against him will be set ap'de. Gall v. Spenser, 2 Cham. Rep., 92. IS— Discharging order for security for costs — Under what circumstances an order for setting aside an order for security ivill be granted. (1.) . Harvey v. Smith, 1 Cooper's C. & P. R., 51. llTider what circumstances an order setting aside security for costs will be refused. (2.) Marsh v. Beard, 1 Cooper's C. & P. R., 52. 14 — Insolvent plaintiff. The plaintiff will be ordered to give security for costs where it is shewn that he is insolvent, and is carrying on the suit for the benefit of another party who seeks to escape the risk of costs. Mason v, Jfffrey, 2 Cham. Rop., 15. 550 EQUITY DIGEST. ifi \m 15 — Foiin of bond.' Held, Ist : that it is for the plaintiff's convenience to suhmit the name of the proposed surety to the opposite party before filing the bond, as he may risk the surety, not being successfully objected to by the defendants, and it is not necessary that the surety should be first approved by the defendant's solicitor, or the registrar, nor is a plain- tiff bound to give more than one surety, unless he alone is insufficient Beaton v. Boomer. 2nd : that tho bond for security for costs should contain the condition to the effect, that upon the surety, not the plain- tiff, paying the costs the obligation should be void. 1 Cooper's C. & P. R., 63. 16 — Objections to bond for security — Number of securities. Where a bond for security of costs, or prosecution of an appeal is filed in an outer county, all objections to it or to the solvency of the securities should be decided by the master in the county in which it is filed. A party giving a bond for security need not provide more than one surely therein. Brigliam v. Smith, I Cham. Rep., 334. Overruled, see Saunders v. FurnivaJ, Post No. 22. 17 — Infant. An infant out of the jurisdiction petitioning for relief will be re- quired to give security for costs. Stinsonv. Martin, 2 Cham, Rep., 86. 18 — Setting aside. See number 12. 19 — Next friend. The next friend of a married woman, who is a co-plaintiff with her husband, will be required to give security for costs if it appears that he is a person of no known means and his residence not known, though it appears that the husband has a substantial interest and is not a mere formal party to the suit. Van Winkle v. Chaplin, 2 Cham. Rep., 98. 20 — Plaintiff's residence not known. "Where it appears that the residence of the plaintiff is not known, and there is reason to believe he has left the country, security for costs will be ordered to be given, although it does not appear by the bill that the plaintiff is resident out of the jurisdiction and is not shewn positively where he is resident. Somerville v. Kerr, 2 Cham. Bep., 168. rrw'i tlQtJITY DIGEST. 651 e to submit the before filing the ly objected to bj ty should be first ir, nor is a plain- >ne is insufficient r for costs should ly, not the plain- 1 Cooper's C. & r of seciirit'm. I of an appeal is ; solvency of the unty in which it lot provide more m. Rep., 334. relief will be re- t, 2 Cham, Rep., plaintiff with her it appears that nee not known, interest and is /e V. Chaplin, 2 iff is not known, try, security for at appear by the ction and is not . Kerr, 2 Cham. 21— Payment of deposit tiioney out of couH. Where plaintiffs, who were residents out of the jurisdiction, had paid a certain sum into Court in lieu of security for costs, an applica- tion to have this money paid out to them was refused, although a decree for specific performance had been made in their favor, the suit not being finally terminated. Luther v. Ward, 2 Cham. Rep., 175. 22 — Security for costs of appeal. In bonds for security for costs of appeal there should be two suffi- cient sureties, and if one dies or becomes insolvent another will be ordered to be substituted. Brigham v. Smith^^Ch&m. Rep., 334 ^/ overruled. Saunders v. Furnival, 2 Cham. Rep., 159. /" " 23 — Practice as to. See Taylor's Orders, when ordered, 38, 39, 40 ; bonds for, to be to r^istrar, 179; deputy registrar may issue order for, 175; in Court of Error and Appeal, 241, 318; in Privy Conncil, 245, 319; in County Court, 26, 257, 319; in Surrogate Court, 258. See Married Women — Next Friend— Practice. SELLING TIMBER. See Injunction. SEPARATE ANSWER. See Husband and Wife — Married Woman. SEPARATE ESTATE. See Married Women. SEQUESTRATION. Costs, 3. Chose in action, 4, 6. Uent, 6. Receiver, 1. Notice, 2. Process agaiitst tenant, 8. 1 — Receiver. Where a receiver of partnership property has been appointed and certain chattels have been seized under a sequestration against the defendants for contempt of the injunction, and the chattels so seized were alleged to be the property of the defendant and his co-partner, but it appeared that third persons claimed an interest therein. The plaintiff having moved to sell this property, a reference was directed in such motion (on which the claimant had appeared) to inquire aa 552 EQUITY DIGEST. to their interest, and any farther order on the motion was reserved, the parties to the motion electing to have a reference instead of issues to try the questions in dispute. Prentiss v. Brennan re Brennan, 2 Grant, 274. See also " Receiver." 2— Notice. Where it is necessary to proceed to a sale ot" iiuporty seized by sequestrators, notice of application for an order for the purpose must bo given. Forbes v. ConolJy, 1 Cham. Rep,, 6. 3 — Process against tenant — Costs. The tenant of a party against whom a writ of sequestration has is- sued will be ordered to pay the commissioner rent shewn to be due, and also to attorn and pay the accruing rents. Jackson v. .h\scm, 1 Cham. Rep., 115. 4 — When choses in action are bound by. Held, first, that a creditor has a right, under a writ of sequestra- tion, to compel payment by a third party of a debt which he owes to the defendant, against whose estate the writ issues. Second, that until either the sequestrator, or the party claiming under the writ, take steps to obtain payment of the money, the chose in action is not bound by reason of the writ being in the sheriff's hands. Third, that writs of execution only bind moneys or choses in action, or se- curities for money from the time of actual seizure by the sheriff, or of some act symbolical therewith, or tantamount thereto. McDowdl », McDowell, 1 Cham. Rep,, 140. 5 — Rent to accrue dw, — Chose in action. Rent to accure due is not a chose in action, md a tenant, in re- spect to it, may attorn, but wl'ere the tenant, having been notified b; the sequestrator, promised to pay him the rent in future, and after- wards, on being indemnified, paid i^ to a party claimini^ it as assignee, he was ordered to pay it over again lo the sequestrator. Harris v. Meyers, 2 Cham, Rep., 121. See Corporation — Injunction — MsMBiTR or Parliament. SERVANT. Sei Injunction. m EQUITY DIGEST. 553 V Parliament. SERVICE. AflkUvit of. 1. 0(biU,2. Out of Jurbdlotion, 8. By publication, 4. Subttitutional, S. 0( notice of motion, time for, 6. (X notice, on Toronto agrent, 7. On attorney of Judgment creditor, 8. Oi order on absconding defendant, 9. On grown up person, 10. Of bill of coits, 11. Of order for married woman to anawer separately, 12. On corporations, IS. Practice as to, 14. Judgment creditors, IS. On solicitor, 16. On attorney, 17. By parties to suit, 18. \— Affidavit of. It is not necessary to issue a oommission for the purpose of tak- ing the affidavit of service in a foreign country. Snyder v. O^Lone, 4 Grant, 148. 2— 0/ bill — Corporations. The order permitting the service of the bill upon the agent of a cotporation aggregate, does not authorize service upon agents of corporat'ons within Upper Canada. Campbell v. Taylor, 1 Cha.'n. Rep., 2. lAmit of tirne. Previously to the order of the 6th of Feb., 1865, there did not exist any rule or practice of the Court, limiting a time within which a plaintiff was bound to serve a copy of his bill on the defen- dtnt ; where, therefore a bill was filed on the 30th of June, 1863, and an office copy not served until the 16th of Jan., 1865, a motion to set aside the service of the bill on the ground of irregularity, and to declare the cause out of Court, was refused with costs. Tylee v. Strachan, 1 Cham. Rep., 319. Insufficiency of. To make the service of an office copy of a bill on a person, other than the defendant, good service on the defendant, when no order for substitutional service has been obtained, it is not sufficient to shew that the person served is a relation of the defendant ; he must be actually residing with the defendant, and the service should be made at the defendant's place of abode. Elliott v. Beard, 2 U. C. L. J. N. S., 332. Service on a grown up person must be at defendant's residence, and such person served must be a resident there. S. C. 2 Ch»m. Rep., 80. Pro confesso, service on solicitor. An office copy of the bill had been served on the solicitor of oat of tht defoadanti, who gaye an undwtaking to put in an answer, 8x Mil If- Ih:' ¥1 664 EQUITY DIGEST. iii:r I or in default that the plaintiffs might proceed to take the billp'o con- fesso, urithout further notice being given of the proceedings, the order was made accordingly, f Esten, and Spragge, V: C] Peter- borough V. Conyer, 1 Cham. Rep., 18. Foreign service — Pro confeaso. Where there is an inconsistency in an indorsement of the bill, and the order under which foreign service is effected. The Court will not grant an order pro confess©. James v. Wertheimer, 5 U. C. L. J., 163. AdTnission of. When a married woman who had received an office copy bill and order to answer separately by mail, accepted service in writing, and returned the acceptance indorsed on the original order, it was held under the circumstances to be sufficient service. Keachie v. Buchanan, 1 Cooper's C. & P. R,, 44. Extension of time for. The Court will not grant an order extending the time for the Mr- vice of a bill. The solicit or must use due diligence to effect the ser- vice, and after it is effected must come to the Court to get it allowed, if more than the time given by the orders of the 6th of Feb. 1865, has elapsed. Munn v. Glass, 1 Cham. Rep., 337. , 3 — Out of jurisdiction. When an application is made to serve a defendant out of the jurisdiction, and correspondence is relied upon to shew the party's residence ; the affidavit must shew at what time the last communi- cation had been received from tbe defendant. Farry v. Davis, 1 Cham. Rep., 7. An application for an order to serve a defendant out of the jurisdiction, at Iowa, was refused, the affidavit upon which the motion was founded merely stating that letters had been received from the defendant, dated at that place ; but did not shew that he was resi- dent there. Kingston v. Monger, 1 Cham. Rep., 18. It is unnecessary to obtain an order to serve an office copy of the decree out of the jurisdiction, as No, 7 of the orders of the 10th of January, 1863, applies to the service of all proceedings in the cause. Wood v. Brock, 1 Cham. Rep., 235. The plaintiff's solicitors had written to the defendant Han- oook (residing out of the juriidiotion), and had received letters in EQUITY DIGEST. 565 Ice the bill pro con- proceedings, the B, V; C] Peler. lorsement of the is effected. The !« V. Wertheimer, D office copy bill service in writing. ;inal order, it was Keachie v. 3 vice. e time for the »er- e to effect the ser- t to get it allowed, 3th of Feb. 1865, tdant out of the shew the party's he last communi- arry v. Davis, 1 dant out of the which the motion received from the that he was resi- 8. e an office cop; the orders of the proceedings in the defendant Han- eceiyed letters in reply. They also mailed hira an office copy of the bill properly en- dorsed, and had since received a letter shewing that he had received the bill. A. C. Chadwick moved an affidavit of these facts, for an order al- lowing the service. He cited Alfred v. Hicks, 5 Taunt, 186. The Chancellor granted the order asked, but directed a copy of it to be mailed to the defendant. Woodside v. The Toronto Street Railway Company, 2 Cham. Bep., 24. 4—0/ hill by publication. On moving for an order to serve an absconding defendant by publication, it must be shewn where the defendant last resided, and whether he has any relations within the jurisdiction, and if so, that enquiries have been made of them as to his whereabouts. Irv- ing V. Strait, I Cham. Rep., 185. In a suit which is not for foreclosure or specific performance, the Court cannot order service of the bill by publication on defen- dants who have been out of the jurisdiction for more than two years before the filing of the bill. Birkis v. Mchols, 1 Cham. Rep., 232. The Court will permit service of a bill by publication [under seo, 8 of order IX] upon a defendant in a foreclosure suit, who has left the jurisdiction, though the defendant sought to be advertised is merely an incumbrancer by virtue of a subsequent mortgage. Rob- son V. Reesor, 1 Cham. Rep., 280. On an absent infant defendant — Guardian ad litem. Where an absent defendant is an infant, the Court has like powers as to granting an order for service by publication as in case of an adult ; but, semble, the notice published should not state that, in default of answer, the bill will be taken pro corifesso. The Court will also in exercise of the discretion given to it by 28 Vic, ch. 17, 800. 12, call upon such defendant by the same order to shew cause why a solicitor of the Court should not be appointed his guardian ad litem. Duffy v. O'Connor. 1 Cham. Rep., 393, 5— Substitutional. Where after the issuing of an injunction and sequestration, in a partnership suit, against the defendant, a transfer was made of a promissory note, part of the assets of the partnership, and the plain- tiff having filed affidavits impugning the hona fides of the transfer ; the Court gave leave to th§ plaintiff to gcrvQ 9, notice of motion to 566 EQUITY DIGEST. compel the delivery or payment of the note to the receiver or sequei- trator in the cause, upon the party to \rhom the note had hwn trani. ferred out of the jurisdiction, and such party having appeared upon and opposed the motion, substitutional service of the subpoena to an- swer was directed to be made on his solicitor or agent in a suit after- wards brought against him by leave of the Court for the same purpose. Prentiss v. Brennan, Re Bunker, 2 Grant, 322. Under the Provincial Statute 14 and 15 Victoria, chapter 10, the rule respecting substitutional service h enlarged to this extent, that substitutional service is now authorized upon any agent or person in charge of any property which is ^he subject matter of the suit. Can- nife V. Taylor, 2 Grant, 617. Where after committing a breach of an injunction, the defendant left the jurisdiction of the Court, substitutional service of the uotioe of motion to commit the defendant for the contempt was ordered to be made on his solicitor. Farewell v. Wallbridge, 3 Grant, 628. /'" In moving for an order for substitutional service of an absconding ' defendant, on which the motion was made, stated that the deponent had made enquiries and exertions to serve the defendant, but had been unable to do so. The motion was refused, as the affidavit ought to shew what exertions had been made, so that the Court or judge may t be enabled to determine whether or not the defendant is absconding, I or that it would be proper to dispense with personal service. Esten, \ V. C. Murney v. Knapp, 1 Cham. Rep., 26. The rule allowing substitutional service of a bill upon an attorney- at-law, applies only to cases where the object of the suit is to restrain proceedings at law, not where any other relief is sought. Crawford V. Cooke, 1 Cham. Rep., 67. The same time must be allowed for answering a bill served by lub* stitutional service as if the service had been personal. Crookshank V. Sager, 1 Cham, Rep., 202, The act 28 Vic. ch, 17, gives the Court larger powers as to pro- ceeding against absent defendant-;, whose residence is unknown, and the Court will grant orders for substitutional service in cases where it would not under the practice before the act, dispensing with ad- vertising where it would be useless. Cooper v. Lane, 1 Cham. Rep., 363. Where some or all of the parties to be served, are out of the juris- diotion ; substitutional SQryice of a bill may \)e effected pn partners EQUITY DIGEST. 657 ceivor or sequei- I had bef'n trani. g appeared upon i subpoena to an- at inaBuitafter- ^he same purpose. , chapter 10, the this extent, that ;ent or person in )f the suit. Cati' n, the defendant dee of the notice it was ordered to 3 Grant, 628. of an al that the deponent lant, but had been affidavit ought to lurt or judge may ^nt is absconding, service. Esten, upon an attorney- suit is to restrain ught, Crawford ill served by sul). lal. Crookshank powers as to pro- [is unknown, and be in cases where ensing with ad- \p, 1 Cham. Rep., out of the juris- bcted on partners or agents where there is clear proof of agency with reference to the subject matter of the suit. A/Ian v. Pyper, 5 0. C. L. J., 118. It is not necessary t^ take out a new order for substitutional ser- vice on an agent whenever the original bit! is amended. Rainy v. Dickson, 6 U. C. L. J., 163. On an application for an order for substitutional service of bill of complaint, on its being shewn that the defendant could not without delay and difficulty be served personally out of the jurisdiction, he not remaining long at one place, and that he had a branch business in Toronto, in charge of an agent, and the subject matter of the suit having reference to such agency, service of bill on such agent was di- rected, and that a copy be mailed to the defendant at New York, nine weeks being given to answer. Mowat, V. 0. Cupples v. Yorsion, 1 Cooper C & P. R., 31. 2 Cham. Rep., 31 When a defendant who was made a party in the suit in respect of a mortgage held by him upon the lands which form the subject mat- ter of the suit, was out of the jurisdiction ; but, it appearing that his solicitor has always had the mortgage in his possession, substitutional service upon such solicitor was allowed. Young v. Wilson, 1 Coop- er's C. & P. R., 62. 2 Cham. Rep,, 56. Substitutional service will not be allowed under the act of 1865, unless it is shewn that it would be very expensive or very difficult to effect a service. Pearson v. Campbell, 1 Cooper's C. & P. R., 8. 2 Cham. Rep., 25. lo— Time for service of notice of motion — Sunday. There must be two clear days between the service of a notice and the day for hearing the motion, and in the computation thereof, sun- day is not to be reckoned. In Re Crooks, <^c., Solicitors, &c., 1 Cham. Rep., 304. Service of a paper eflFeoted after the hour of four o'clock, by putting it under the door of a solicitor's office, is not a good service for that day, unhss it be shewn that the paper came to the hands of the soli- citor or his clerk on that day, during such hours as the one or the other might bo served personally. When Sunday is an intermediate day it is reckoned in the computation of the time for service of pap- en. Sprague v. Henderson, 1 Cham. Rop., 213. 7—0/ notice — Toronto agents. D, a country solicitor, employed McN and H as his booked Chan- cery agents in Toronto; H being the one who conducted the Chan- 558 EQUITY DIGEST. lli I eery business of the firm. MoN and H dissolved partnership. Held, that a notice served upon a clerk in the office of MoN, after the dis* solution, was not a good service upon D. Hind v. Little, 1 Oham. Rep., 355. 8 — Service on attorney ofjudgTnent creditor. The Act 20 Vic. ch. 56, sec. 14, applies only to cases of foreclo. sure or sale by an incumbrancer. Monro v. Keiley, 1 Cham. Rep., 23. 9 — Service of order on absconding defendjant. Service of an order appointing a new day for payment of mortgage money will be dispensed with when the mortgagor is an absconding defendant, against whom the bill has been taken -pro confesso after service by publication. Ellwood t\ Scott, 1 Cham. Rep , 190. 10 — On grown up person. The service on a grown up person must be at defendant's resi- dence, and such person served must be a resident there. Elliott v. Beard, 2 Cham. Rep., 80. 11 — Service of hill of costs. A solicitor's bill of costs need not necessarily be served personallj — service on one of several clients acting in conjunction by the same solicitor, but not co-partners, is sufficient service on them all. Service on a solicitor appointed by one of several clients who had been active in the suit, and through whom instructions therein had been given, deemed sufficient service. Re Morphy v. Kerr, 1 Cooper's, C. &P. R., 91. 12 — Service of order for married ivoman to answer separate- ly. At the time for serving an order to answer separately on a marri- ed woman, the original order should be shewn, and the fact should be sworn to in the affidavit of service, otherwise an order pro confesso will not be granted. Robinson v. Dobson, 1 Cham. Rep., 302. 13 — Service on corporations. If the head office of the corporation be situated in Upper Canada, service must be effected at same if without any agency. Howland v, Grierson, U. C. L. J., Vol. V, page 19. 14 — Practice, as to. See Taylor's orders, of process in foreclosure suits, 31 ; on absent defendants, 32, 222 ; of bill, 56 ; out of jurisdiction, 57, 222 ; evi- UQUITT DIGEST. 559 rtnership. Held, ^, after the dis* Little, 1 Cham. cases of foreolo- f, 1 Cham. Bep., mt. ment of mortgage is an absconding ro confesso after Rep , 190. defendant's reri- there. ElliuU v. served personally Btion by the same them all. Service had been active had been given, Cooper's, C. &P. nswer separate- ■ately on a marri- the fact should order pro confesso , Rep., 302. in Upper Canada, iDcy. Rowland v. ts, 31 ; on absent ion, 57, 222 ; evi- dence required for order for, 58, 222; affidavits of, how sworn, 223 ; labstitntional, how obtained, 58, 59 ; on absconding defendant, when dispensed with, 59; absent defendant in specific performance and foreclosure suits, 60 ; where accepted by solicitor, 51, 73, 75 ; form of, 328 ; on infants, 76 ; on corporations, 187 ; foreign corporations, 188; order jpro con. against, 188, 189. 16 — Judgment creditor. In any suit instituted in a Court of Chancery by a mortgagee or judg- ment creditor, or by any other person having a charge on real proper- ty, for the foreclosure or sale of property, and to which suit any judgment creditor of the mortgagor, or of the judgment debtor, or of the person liable to the charge, is a defendant, personal service on Buoh defendant shall not be necessary, and it shall be sufficient .'^o serve the process of the Court, whether the same be an office copy of the bill or an office copy of the decree or decretal order, upon his at- torney in the action at law in which the judgment has been recovered ; but tiie plaintiff in any such suit in Chancery may elect to serve the judgment creditor personally instead of serving the attorney, 20 Vic, c. 56, s. 14. 16—0*1 aolicitoi'. Where a solicitor accepts service of an office copy bill of complaint and gives a written undertaking to answer the same, or, in case of default, that an order pro confesso may be drawn up, the usual two day's notice for that purpose must be given, and may be served on the solicitor. Ross v. Hayes, 6 Grant, 277. 17—091 attorney. Where service of an office copy bill is effected on the attorney-at-law of the defendant, a three week's notice of motion to take the bill pro confesso must be given. The notice may be served on the attorney of the party. Webster v. O'Closter, 6 Grant, 278. 18 — By parties to suit. The Court will permit service of pleadings to be effected by parties to the suit, and will allow the same fees upon taxation as if served by third persons. McClure v. Jones, 6 Grant, 383. Sbb Absent Defendant— Executors— P&aoiiok. SETTING ASIDE AWARD. Sn Abbitration. 660 EQUITY DIGEST. SETTING ASIDE DEED. Sh Abiiinistration— DEED— Limitations. SETTING DOWN CAUSE. 1 — ^Where a plaintiff filed a replication to the defendant's answer, and aJPterwards, and without serving a rule to produce witnesses, set the cause down for hearing and declined to treat it as set down od bill and answer, the Court (Esten, V. C, dissentiente) ordered the cause to bo struck out of the paper for irregularity, but inasmuch as the defendant had not taken any step to correct the irregularity be- fore the hearing, without costs. Killaly v. Graham, 2 Grant, 281. 2 — In future, when any objection exists to the setting down of a cause, or to the subpoena to hear judgment, the opposite party will be held at the hearing to have waived it, unless it be shewn that the objection could not, with reasonable diligence, have been taken before the hearing, lb. See Dismissing Bill. SET OFF. At Uw, 1. Of coats when partiea Jointly and leTeriilly liable. 2. Mutual debti, 8. Insurance, 4. Statute ot limitation, 6. 1 — At law. Where there are unconnected cross demands, equity does not, Id general, interfere to set off one against the other in the absence of any special circumstance or agreement expressed or implied. A party who fails to take advantage of an opportunity to set off his debt at law cannot, in general, come to equity for that purpose. Held, also, that the finding of a jury in a plea of payment cannot negative the existence of a cross demand, Smilh v. Muirhead, 3 Grant, 610. Where a plaintiff at law filed a bill in this Court to enforce his judgment, the Court, under the circumstances, directed a reference to the master to take an account between the parties, the defendant claiming to have had a set off to a greater amount than the judgment, although the general rule is that a party neglecting to set off his claim at law cannot afterwards apply to this Court to have the benefit of it. Cameron v. McDonald, 7 Grant, 402. In the view of equity the setting off one demand against another be> tween the oame parties is extremely just, and where there is any teoh- nioal diffiQttltjT in th« way of its beiag done without m »gr««m«nt, (he EQUITY DIGEST. 561 sfendant's answer, uce witnesses, set t as set down on ente) ordered the , but inasmuch as le irregularity he- 71, 2 Qrant, 281. setting down of a pposito party will be shewn that the I been taken before tion, 6. iquity does not, in in the absence of implied. A party set off his debt at rposo. Held, also, mnot negative the 3 Grant, 610. )urt to enforce hb ected a reference to ies, the defendant than the judgment, r to set off his claim ve the benefit of it. against another be* e there is any tech- I w agre«m«nt, th* Court accepts slighter evidence of such an agreement than is usually required, in order to establish disputed facts. Lundy v. McCul/a, 1 1 Grant, 368. 2— Of coats wlien partlea jointly and severally are liable. A decree had been made in a cause giving the plaintiff relief und ordering the defendants to pay the costs, which, however, were not paid. The plaintiffs appealed from a portion of the decree with which they were dissatisfied, which appeal, upon argument, was dismissed with costs to be paid to one of the respondents, thereupon the plain- tiff applied to set off the amount so ordered to be paid against the costs directed to be paid by the defendants in the Court below to the plaintiffs, which was ordered accordingly. Bank of Upper Canada V. Thomas, 10 Grant, 356. Z— Mutual debts. To entitle a party to set off one debt aguinst another it must be shewn that the debts are due from and to the same parties respective- ly. Where, therefore, a debt was due from A to B, and an amount of costs was due from B and his solicitor to A, the Court refused an application made by B and his solicitor to set off the one amount against the other, although the effect of such a set off would have been that B would have paid a debt for which he was only jointly liable with another. Wilson v. Switzer, 1 Cham. Rep., 160. i-^Insurance. An insurance company accepted a note for the premium, and the policy contained the following clause. " In case of loss, such loss is to be paid in thirty days after proof of los^ ; the amount of the note given for the premium, if unpaid being first deducted," a part- tial loss haying occurred, it was held, that the assured had a right in equity to set off the amount against the note. Berry v. The Co- kmUan Insurance Company, 12 Grant, 418. 5^Statute of limitations. P owed R two debts, one secured by mortgage, and one unsecured and P had a counter claim against B. P executed a subsequent mortgage in favour of R, who filed a bill to redeem 6's mortgage, np to the time of filing the bill there had been no act appropriating the counter claim to either the secured or unsecured debt ; and boih the counter claim and the unsecured debt had become barred by the statute of limitations. Held, that the plaintiff was not entitled to set off the counter daim against the mortgage debt. Ross v. PerrauU, 13 Grant, 206* 8t IMAGE EVALUATION TEST TARGET (MT-3) .'A<^ 1.0 1.1 ■tt 122 12.2 SI |4£ 12.0 iiiiiy4U4 ^^^' / HiotogFaphic Sdenoes CorpcBBtioii 23 WBT MAIN STRMT VVnSTIR,N.V. I4SM (71*)t71-4S03 '^:t 4^ ^^ f % ^ » ^ 562 EQUITY DIGEST. ,6 — Queer e, whether if a bank was responsible for goods under oir- cumstances which prevented a set off at law, that relief could be had in equity. Clarke v. Bank of Montreal^ 13 Grant, 211. See Assignment — Costs — Injunction— Judgment — Mort. GAGE — Will, SETTLEMENT. On loife and children. The owner of real estate being about to enter into a business part- nership, made a settlement of his property on his wife and children. The evidence shewed that it was made at the instance of the settlor's wife, who thought the settlor ought to do so having regard to the un- certainty of business, and waa made with a view to save the property from any dtbts which might arise in consequence of the partnership, Held, that the settlement so made was void as against subsequeDt creditors, although at the time of the settlement the settlor was in perfectly solvent oircumstan jes, and no intention of fraudulently withdrawing his assets could be imputed to him, and the property Id question was partly paid for by money given to the wife by her fath- er. Buckland o. Rose, 7 Grant, 440. See Marriage Settlement. SIMPLE CONTRACT CREDITOR. See Fraudulent Conveyance. SHERIFF. Order to return papers. In moving for an order upon a sheriff to return papers sent hitu for service, the proper mode of proceeding is to give notice of niotiou, but quare, whether a sheriff can be compelled to serve any papers other than process issuing from the Court. Porter v. Gardner, 1 Cham. Rep., 15. Liability for damages for escape. See costs. See Sheriff's Return— Sheriff's Sale— Sale. SHERIFF'S POUNDAGE. Cm. Stat. U. 0. c. 22, «. 271. The plpintiff had obtained a decree in this cause against the de- fendants, by which money was ordered to be paid, and on which tb« EQTTITY DIGEST. 563 plaintiff issued an execution, and lodged it in the hands of a sheriff. After seizure under the writ, but before the money was levied, the defendant moved for and obtained (See, Ch. R., p. 214) leave to re- hear the cause and a stay of the execution, on the terms of paying the money into Court, which was done. Held, that the sheriff not having actually levied the money under the execution, was not en- titled to poundage, but to fees only for services actually rendered, to be settled by a judge in chambers. Winters v. Kingston Permanent Building Society, 1 Cham. Rep., 276. SHERIFF'S RETURN. Amending. A sheriff in his advertisement of sale of lands, seized under afifa from this Court, had described them as the lands of the defendant, when they were those of the plaintiff. On au application on noticet the return was allowed to be amended on payment of costs of the motion. McCan v. Eastwood, 2 Cham. Rep., 182. SHERIFF'S SALE. 1 — A sheiiff to whom a writ against lands is delivered for execu- tion, should make reasonable inquiries as to what property the ex- ecution debtor has, and what interest in it he possesses ; and should not advertise more of the estate than he finds the debtor is interested in, if he knows what the debtor's interest is, he should give such state- ment of it in the advertisement as a provident owner would ; and in r^ard to these matters, he is not justified in acting irregularly by the instructions of the plaintiff's attorney against his own judgment. McDonald r. Cameron, 13 Grant, 84, 2 — A third person who purchases, and gets the sheriff's deed is not effected by irregularities on the part of the sheriff, unless the circum- stances are such that the purchaser's taking the deed can be said to amount to a fraud. lb, 3— If the execution creditor purchases as either principal or agent and it appears that he or his attorney interfered with the conduct of the sale by the sheriff^ and that through such interference the sale was not properly advertised or conducted, and took place under circum- stances of disadvantage to the debtor, the sale cannot be maintained except as a security for the debt, provided the question of the validity of the sale is piesented for adjudication without delay, and before the property has passed into the hands of a third party. lb. I '<' W>.l 564 EQUITY DIGEST. 4 — Two executions against lands were in the hands of the sheriff and fhe sheriff had advertised a sale under the first writ. On the morning of the intended sale, the sheriff was directed not to proceed with it, And accordingly the sale did not take place. Held, that the first e ;;(tition was thereby postponed to the second the direction to the sheriff being peremptory, although it was given for no fraudulent purpose, and although in giving it there was no in- tention of abandoning the seizure. The Trust and Loan Company o. CV///iAcr/, 13 Grant, 412. 5 — Purchase by mortgagee at. The plaintiffs filed a bill for foreclosure. The defendants s«t up that they were absolute owners of the property by virtue of a tax nale, and the proceedings in a foreclosure suit. Both defences failed, and the defendants therefore claiming at the bar, that the plaintiffs should redeem the prior n^.ortgage ; the Court granted a reference in such terms as would enable the defendants to establish the claim if veil founded in the master's office. Jones v. The Bank of Upper Canada, 13 Grant, 201. See Partnership— Sale- Sale bt Sheriff— Deed-Plead- ing. SHIPS AND SHIPPING. Indorsement of mortgage of vessel. The Court cannot relieve against the omissiou of a mortgagee of a registered vessel to have the proper indorsement of such mortgage made on the certificate of ownership. Coleman v. Sherwood, 2 Grant, 652. SIMPLE CONTRACT CREDITOR. See Conveyance. SOLICITOR. Not called on to produce his authority, 1. €!ost8 agrainst solicitor under certain cirouin- staiiceH, 2. Order to change, 3, 0. Not to be proceeded against ex parte, 4. Treating with opjKisite party personally, 6. Contempt of court, 6. Changing, 7. Retainer, 7 (2). Cdusent, by, 8. Irregular to become security (or client, 10. 1 — Not called on to produce his authority. A defendant in equity has no right to call upon the plaintiff's so- licitor to produce his authority for using the plaintiff's name, and par- EQUITY DIGEST. 565 liands of the sheriff, first writ. On th« ected not to proceed se. poned to the second, hough it was given g it there was noin- fid Loan Company o, e defendants set up J virtue of a tax ule, defences failed, and , the plaintiffs should a reference in such ilish the claim if well ik of Upper Canada, IFF— Deed-Plead- of a mortgagee of a ent of such mortgage an V. Sherwood, 2 ITOR. court, 6. ). II. ccome security (or client, 10. on the plaintiff's so- intiff's name, and par- tionlarly where no case of improper conduct on the part of the solicitor in using such plaintiff's name is positively alleged and verified. Chis- holm V. Sheldon, 1 Grant, 294. 2 Costs against solicitor under certain circumstances. Where a solicitor of this Court purchased a widow's right to dower in all the lands of which her hushand was seized during her cover- ture, taking from her an assignment thereof and a power of attorney to use her name in suing therefor, «ix years after the death of her husband, and several years after the purchase so made by him, filed a bill in the name of the widow for the purpose of having dower as- signed to her in a particular portion of her late husband's lands, not noticing the sale to himself, the Court, on the application of the widow, ordered the bill to be taken off the files, with costs to be paid by the solicitor. Myers v. Lake, 1 Grant, 305. ^— Order to change. This Court will order a party's solicitor to be changed without any condition as to paying the solicitor his costs. Myers v. Rolertson, 1 Grant, 4?9. 4 — Not to he proceeded against ex parte. A party alleged that he was induced by the plaintiff's solicitor to allow his name to be used as " next friend" on the assurance that he would not be rendered liable to costs — the solicitor denied that. It was considered such a fact could not be established by ex parte affi- davits. Burgess v. Muma, 2 Cham. Rep., 43. 5 — Treating ivith opposite party personally A solicitor should not treat with a party to a cause in the absence of the solicitor of such i^arty. Bank of Montreal v, Wifeon, 2 Cham. Rep., 117. ^—Contempt of court. If a solicitor, who is also a barrister, while in a master's office use improper or insulting language towards another solicitor while acting in the conduct of proceedings under a reference, he will be held guilty of contempt of Court, and upon a certificate of the facts from the master, the Court may preclude the offending party from again appear- ing before the Court, or in any offices of the several masters of the Coart. Upon the making of a suitable apology, and upon payment of costs, the offending party may be again allowed to appear before the Court as if such order had not been made. Nichols v. McDonald and Ross, 4 U. C. L. J., 269. . ., r 566 EQUITY DIGEST. 7—ChangiMg. (1) On an appeal from a master's report coming on for hearing, it was objected that the solicitors appealing were not the solicitors who proved the claims before the master. The chancellor held that the solicitor might be changed without order — that being the practice in England in 1837, when the English practice came into force here and we having no order in our own Courts t ^ the contrary. If (jg it was suggested) he had ever held differently in chambers, it had been in consequence of the present English order (which requires an order for a change of a solicitor) having been cited to him as govern- ing the practice here, which of course it does not, Bailey v. Bailey 2 Cham. Rep., 57. Metainer. (2) If a firm consisting of two or more partners are retained and one dies, it will be assumed that the retainer continues to the surviv- ing partner or partners. Alchin v. The Buffalo and Lake Huron Railroad Company, 2 Cham. Rep., 45, 8 — Consent by. Although there may possibly arise cases of an extraordinary nature where it would be the duty of the Court to relieve the client from the cons uence of his solicitor's act, where the latter had acted fraud- ulently, and even to punish the solicitor ; yet, ordinarily, the client is bound by any consent or arrangement which his solicitor in good faith enters into with a view to the client's benefit, although it may be entered into without consultation with or instructions from the client. Bailey v. Bailey, 2 Cham. Rep., 68. 9 — Order to change solicitor. The common order to change solicitor is obtainable, as of course, on pracipe. In re Mylne, 1 Cham. Rep., 199. 10 — Irregular to be security for costs. It is irregular for a solicitor to become security for costs for his client. Beckett v. Wragg, 1 Cham. Rep., 5. See Affidavits — Costs — Foreclosure — Lien — Taxation — Solicitor and Client. / SOLICITOR AND CLIENT. Colts, 1. Solicitor purchasing for himself when agent, 2. Breach of trust, 3. Ex parte application by solicitor, 4. EQUITY DIGEST. 567 tainable, aa of course, 1— C08<8. Where a solicitor had irregularly proceeded to tax his costs as be- tween solicitor and client, the absence of the client, the Court upon a petition presented seven years afterwards, ordered a taxation of the costs, treating the taxation which had taken place as a void proceeding, and ordered the solicitor to pay the costs of the applica- tion. Clarke v. Manners, Re Manners, 4 Grant, 432. 2^Solicitor purchdsing for himself ivhen agent. A person in indigent circumstances, being entitled to a grant of land from the crown, had consulted a solicitor with a view of obtain- ing the patent. In the course of their business transaction, the so- licitor wrote *• I think I can manage for you so effectually that I can get your deed from government, probably through some assistance on my part " The Client having executed an assignment as he alleged by way of security to the solicitor, and the patent for the land hav- ing issued, the solicitor set up the transaction as an absolute purchase, in consequence of which the wife of he plaintiff acting as his agent, took steps to assert her husband's claim, and procured the assistance of her brother in ferreting out the nature of the title held by the so- licitor. After repeated applications, the solicitor agreed to re-convey, upon being paid the sum of £170, asserted by him to be due. This amount the brother advanced, and took a conveyance of the property, said to be worth £800 in his own name, and then alleged he had pur- chased for his own benefit. The Court (Esten, V. C, dissentiente) declared the deed to the solicitor a mortgage only, that his assignee had in fact acted as agent of the plaintiff, and could not purchase for his own benefit, and directed an inquiry as to certain points left in doubt by tho evidence before the Court, and an examination of the solicitor 8 books, unless the purchaser would consent to re-convey upon receiving back the amount paid by him to the solicitor. Mcll- roy V. Huioke, 5 Grant, 516. 'i— Breach uf Trust. An execution being in the hands of the sheriff against lands, the defendant therein applied to a solicitor to procure his services in ob- taining a settlement of the demands against him, with the view of enabling the solicitor to raise funds for that purpose; the client, at his solicitor's suggestion, conveyed his lands to him in fee, taking back a defeazance, stating the object for which the deed was made ; but this defeaiance was subsequently lost. In order to raise money the •olioitor executed a mortgage for £245, and the mortgagee sold the 568 EQUITY DIGEST. same to another party for £150, which amount was handed to the solicitor, and thereout he paid the claims against the client, amoant- ing in all to about £90. Afterwards the solicitor demanded from the client £245, and subsequently £300, as the price at which the client would be allowed to redeem, and this not having been complied \rith the solicitor sold to a third party for £125 over and above the uort. gage, but the purchaser had notice of the claim of the client. Upon a bill filed for that purpose, the Court declared the acts of the solicitor a plain breach of trust, that the client was entitled to redeem upon paj. ment of what was actually expended on his behalf, that the purchaser of the mortgage was under all the circumstances entitled to hold the land only for which he had actually paid and interest, the excess of which, over and above the amount expended for the client, the solic- itor was ordered to pay, together with the costc of the suit to the hearing. McCann v. Dempsey, 6 Grant, 1 92 4 — Ex parte application by solicitor. Although a solicitor may for sufficient cause, give notice to his client that he will no longer act as such solicitor, and thus termi- nate the connection between them ; the Court will not make an order for that purpose upon the ex parte application of the solicitor. Bucker v. Ansefl, 1 Cham. Rep.. 367. 5 — Coats between. Where a creditor filed a bill impeaching conveyances made by the debtor as fraudulent against creditors, and the relief prayed was graut- ed at the hearing ; the Court ordered the difference between party and party, and solicitor and client, costs to be paid pro rata, by such of the creditors as might avail themselves of the benefit of the suit for the purpose of obtaining payment of the demands. Pegg v. Eastman, 13 Grant, 137. See Breach op Trust — Foreclosure— Lien— Solicitor. SOLICITOR'S BILL. On a common order by a client to tax his solicitor's bill, the mas- ter may take into consideration alleged negligence of the solicitor as having occasioned the suit or rendered it useless, and therefore con- stituting a ground for disallowing the whole bill, or may consider negligence as affecting parts of the bill, and affording a ground for disallowing such parts. Thomson v. Milligen, 13 Grant, 104. Sii Taxation. EQUITY DIGEST. 569 Lien— Solicitor. In a suit of foreclosure on a mortgage taken by a solicitor from his client to secure advances and costs, the Court refused to direct a taxation of the costs, there being no over charges pointed out, or any undue pressure shewn. Shaw v. Dnmmond, 13 Grant, 662. SOLICITOR'S LIEN. 1 A solicitor having a lien on certain title deeds, as against his client for costs generally, was subsequently employed by another person to prepare a mortgage from such client, when the professional connec- tion with the mortgagee ceased. A second mortgage was created in favour of anotner person ; on default in payment of the money secured by such second mortgage the mortgagee sold the estate under a power of sale contained in the mortgage. HehL that the lien of the solicitor upon the title deeds in his pos- session, as against the mortgagor, continued as against the purchaser. Gillv. Gamble, 13 Grant, 169. Affirmed on re-hearing. ^—Continues though estate 'passed. A solicitor's lien on title deeds for his professional services attaches and continues, although the property to which they relate has passed from the ownership of the client for whom the services were per- formed, by sale and purchase, under a power of sale contained in a mortgage. The purchaser takes the interest of the mortgagor, sub- ject to the lien. Gill v. Gamble, 2 Cham. Rep., 135. S— Producing papers. The rule that a solicitor ia bound to produce documents subject to any lien he may have upon them, does not apply when the person asking for their production is the party to pay the amount claimed. Moodie v. Thomas, 1 Cham. Rep., 19. 4 — No right beyond that of client. Where a solicitor prepared a deed and mortgage for a purchaser, and delivered them to the vendor's solicitors, (but without any stipu* lation as to lien), vrho after the execution of the deed returned it to the solicitor for the purchaser. Held, that his lien for costs was gone, as he had no right beyond what his client could have, and the vendor as mortgagee had a right to hold the title deeds as against the mortgagor. Re Sproule, 2 U. C. L. J. N. S., 74. S» Lien. m. 670 EQUITY DIGEST. SOUNDNESS OP MIND. Evidence of. The principal of what is sufficientlj sane, and disposing mind and memory treated of and acted on, Menzies v. White, 9 Grant, 574, SPECIFIC BEQUEST. See Will, 7. SPECIFIC PERFORMANCE. Abandonment, !iC. Acceptance of title, 69, 61, 70. Ai^eement iiiiirneU , 67. " construction of, 87. " by letter, CO. " to deviso, 82, 113. " voluntary, 78. Ambiguity of contract, 03. Appointment of enifineer to Inspect work before acceptance, 84. S. C. on appeal, 112. Assignee of purchaser, 02. Bond of indemnity against incumbrancers, 65. Compensation, 4, (1), 00. for detlclency, 96, 104. Contract, 21. ambiguity of, 63. fairness of, 96. " rescinding, 62. " to re-convey, 117. Condition, precedent, 22. " . ofsale,.60. » Costs, 13, 49, 54, 74, 86, 87, 89, 93, 94, 98, 102, 103. Costs when decreed without, SO. " when refused with, 33, 39. Cross relief, 87. Crown, 81. Damages, 73. Death of vendor, 86. Decree in absence of penoual representa- tive, 64. Decreed, when, 68. Deed 60 years old, 79. Defective title, 70. Deficiency of land sold, 90. Delivery up of possession, 107. Demurrer, S, 07. Deposit, return of, 64. Dilapidations, 90. Dower, 37, 77. Engineers, 84. Enquiry as to title, 79. Estoppe', 01. Executors, 68. Fairness of contract, 00 Frauds, statute of, 16, 86. (Yee Church of Scotland, 118. Fraudulent conveyance, 71. Further relief, prayer for, 97. Good title, 8. Infants, 72, S3, 86, 91, 97, 106. Injunction, 34, 71. Inquiry decreed, 61, (2). Interest, 28, 29, 81. Investigation of title, 62. Laches, 4, (3), 10, 14, 19, 20, 48, 76. Lessee with right to purchase, 40. Lessor and Lessee, 110. Mistake in contract, 48. Misrepresentation in advertisement 4S Misunderstanding, 63. ' ' Notice uf defective title, 70. Uwner standing by, 2. Urder in Council. 31. Uil lands, 114. Ordnance lands, 115. Parol contract, 1, 6, 16, 106. Parties, 7, 87, 93. Part performance, 63, 113. Parol evidence, 28, 110. Personal representative, decree in ab- sence of, 64. Principal and agent, 63, 80. Principal and interest, 81. Purchaser's rights, 41, 42. Puffing at auction, 44. Public road, 05. • Purchase money, ordering into court irn Rectification of deed, 52. ' Refused when, 24. Roads, 60. Rescinding contracts, 02, 67, 88, 1(M. Reference as to damages, 73. " title, 92. Representation by infant, 91. Relief without costs, 08. Reference, 112. Sale, condition of, 66, of mill, 78. Shewing good title, 8. SUtute of frauds, 16, 99, 66, 6T. Saw logs, 23. Speculation purchase, 27. Signing of contract, 46. Signed agreement, 67. Staying proceedings in appeal, 62 Supposed equity, 86. Taxes. 79. Tenant in tail, 47. Title, 61, 86, 100, (6.) " shewing gijod, 8, 76. • " acceptiuioe of, 69. " investigation of, 62. " enquiry as to, 79. " waiver of, 9. Time, essence of contract, 66. Ultra vires. 111. Uncertainty in terms, 11. Vendor ejecting purchaser, 6, 17. Unreasonable bargain, 25. Vendor and purchaser, 17, 32. Voluntary bond, 38. " agreement, 78. Venue, 87. Variation of contract, 110. Wild lands, (1), 4, (2). Waiver of title, 9, 100. " of time, essence of contract, 66. Witnesses examination of, 87. Water course, 04. Iff .;:■?? r EQUITY DIGEST. 571 I— Parol contract A, by power of attorney authorised his wife to sell and convey certain lands upon such terms as she should deem suitable and convenient, and immediately afterwards left the Province, and died abroad. The wife employed B to find a purchaser, who accordingly agreed with the plaintiffs for a sale at a certain price, payable/by instalments, with interest ; upon payment whereof he was to recqjlve a conveyance, and B gave his own bond for a deed, in which were contained the terms and conditions of sale, the wife subsequently approved of and ratified the bargain so made, and B, with her consent, let the pur- chaser into possession of the property bargained for. Upon a bill being filed for specific performance of the contract, held, that this was not a contract in writing within the meaning of the statute of frauds, but that sufficient appeared to authorise the Court to decree a specific performance of a parol contract upon the terms of the bond, as being partly performed and within the terms of the author- ity. Farqukarson v, Williamson, 1 Grant, 93. 2—Oivner standing by. Where the owner of an estate stands by and allows a third person to appear as the owner, and to enter into a contract as such, the own- er will be decreed specifically to perform such contract. Davis v. Snyder, 1 Grant, 134. 3 — Demurrer. When the owner of an estate was present and permitted a third person to agree for the sale of his lan(^, and the purchaser was let into possession, who made improvements, and being afterwards eject- ed by the owner of the property, filed a bill for payment of the value of those improvements, the Court allowed a demurrer for want of equity, lb. i— Compensation. • (1.) Semble. That this Court, in a proper case, has jurisdiction to decree compensation for improvements when the vendor is unable to complete the title to the purchaser, but the Court will not make such a decree where specific performance of the contract can be com- pelled, lb. Wild lands. (2.) Where a lot of wild land had been sold in April, 1845, and by a subsequent arrangement a conveyance and mortgage were to be executed in April, 1846 : the parties then met, but separated with- 672 EQUITY DIGEST. out coropleiiap; tbeir arrangement, in consequence of the vendor not producing bis title deeds, vihich he had promised to produce ; no further communication passed between the parties. In August, 1846 the vendor rc-soli the premises for somewhat less than he was to have received from the first purchaser, gave the now purchaser a deed, and took a mortgage in the same month or the next ; the second purchai- er went into possession and made considerable improvements on the lot, and as usaerted, with the knowledge of the first purchaser. No eouimunication passed between the purchasers until the month of February, 1847, when tho first purchaser called on the second and told him that he meant to claim the property under his contract ; in August, following, he filed a bill for specific performance, the caiue was brought up for hearing in 1850, and specific performance wu decreed with costs, Macdonald r. Elder, 1 Grant, 513. Laches — Delay not disentitling to relief. (3.) Where a party agreed to sell a lot of land, and at the time of entering into the contract an instalment of one«fifth of the purchau money was paid down, the balance being payable in four annual in- stalments, and the vendee was let into possession and continued in the occupation of the land without making any further payment on account of the purchase, notwithstanding frequent applications were made to him on behalf of the vendor for that purpose. At the expi- ration of about three years from the timo of entering into such con- tract, the vendor re-sold and conviyed the land to anotter party, who had notice, and the purchaser afterwards commenced an action of ejectment against the first vendee, who thereupon filed a bill for specific performance of the contract against the vendor and such se- cond purchaser. Held^ that the delay which had occurred was not under the circumstances sufficient to descntitle tho plaintiff to the relief sought. O'Keefe v. Taylor, 2 Grant, 95. Sembfe. That fl)e peculiar condition of real property in this Province, and the peculiar practice which has grown up in relation to sales, may require a modification of English cases as to the doc- trine of laches. lb. Semble. That when ono party to a contract (vci which time is not the essence) desires to put an end to the contract, in consequence of the laches of the other party thereto, the proper mode of doing so is to give notice that unless completed within a period to be fitted, the contract will be considered at an end. EQUITY DIGEST. 573 S— 'Parol agreement. A party contracted to sell a piece of land, Tvhcreupon the purchas- er was let into possession, and the vendor executed a hond intended to be conditioned for the conveyance of the land so contracted for but, by mistake, the number of the lot was omitted, and the bond was otherwise defective. On a bill being filed by the vendor against the heir-at-law of the purchase i-, the Court considered that the plain- tiff was entitled to rely upon the parol agreement partly performed, and that the bond which had been executed might be used by him to aid in proving the terni • jf the contract, in pursuance of which tne porohaser had taken possession. (VJSeif v. McMahon, 2 Grant, 145. Q^Vendor ejecting purrhascr. Where, under the terms of the contract, the purchaser is let into possession of the premises agreed to be convr'ved, but in consequence of default in completing the purchase the vendor institutes proceed- ings at law, under which the purchaser is ejected Irom the property, the vendor cannot afterwards call for specific performance of the con- tract, but he has a right to come into this Court in order that either the contract may be specifically performed, or the purchaser's rights so bound as to enable the vendor to dispose of the property, lb. 7 — Parties. In proceeding against the heir-at-law of a purchaser in order to obtain a specific performance or recision of the contract, the personal representative of the deceased is a necessary party to the suit, and without one a suit is defective, though an executor do son tort is a defendant, and though no administration had been taken out before the filing of the bill. lb. 8 — Shewing good title. Where a purchaser executed a bond for payment of purchase money of land which ho had contracted to purchase, and was thereupon let into possession in pursuance of contract, the purchaser having after- wards made default in payment, and having refused to accept the title produced by the vendor, an action at law was commenced up- on the bond, whereupon the purchaser filed his bill in equity for the specific performance of the contract if a good title could be shewn, or in the event of the vendor being unable to shew a good title, then for an injunction restraining the action, and that the bond might be delivered up to be cancelled. Upon a reference the vendor failed to shew a good title, and the Court decreed the other branch of the 574 EQUITY DIGEST. prayer, but (the Court being divided in opinion) without costs, Morin v. Wilkinson, 2 Grant, 157. 9 — Waive7' of title. Se.mhle, that from the peculiar mode of dealing with landed estates in this country, the Court would not introduce the strict Englisli rule with respect to waiver of title by acceptance of possession. Ih^ 10 — Laches. Where a contract for the sale of lands is entered into, but the pur- chaser is not let into possession, what delay on the part of the pur- chaser in taking steps to enforce his contract will disentitle him to a decree for a specific performance. Hook v. McQueen, 2 Grant, 490. 11 — Uncertainty in terms of contract. Where a contract was for the sale of u lot of land " and as much of lot seventeeu as should require to be flooded for the purpose of working a mill on lot sixteen," (the lot contracted for). Held, that as the quantity of land on lot seventeen was capable of being ascer- tained by the verdict of a jury, or on inquiry before the master, there was not such an uncertainty in the terms of the contract as to render it void. lb. 12— Costs. The steps which the vendee of an estate, who desires the specific performance of the contract for sale, should take before filing a hill for that purpose in order to entitle him to the costs of the suit con- sidered. Hutchinson v. Rapelje, 2 Grant, 533, 13 — Where, before the expiration of the time appointed by a con tract for the payment of the purchase money of a lot of land, the ven- dee became dissatisfied with the title of his vendor as it appeared on the books of the registry office of the county, and without any com- munication with the vendor filed a bill to rescind his contract, or to have it specifically performed if it should appear that the vendor could make a good title, and at the hearing the plaintiff (the vendee) ex- pressed his willingness to accept the title, the Court with the consent of the deitjndant, offered the plaintiff a decree for specific performance on paymet'it or' costs, or, if that refused, ordered that the bill should be dismi8t.^d with costs. Currah v. Rapelje, 2 Grant, 542. C^^^•»aa»,C^on appeal, 4-GHtt%-660^ 14 — Laches. Tho defendant had for some time used part of the plaintiff's land Bs a mill pond, and differences existed botwecn them in relation then- EQUITY DIGESTi 576 on) without costs. to to put an end to which they entered into a written agreement that the plaintiff should sell to the defendant as much of the land as vas or had heen overflowed by the water of the mill-pond for a price whicL was proved to be far beyond the intrinsic value of the piece of land so sold. To carry into effect this contract the plaintiff had the ground surveyed, but the survey was erroneous, and the deed which the plaintiff tendered comprised in consequence less land than the de- fendant was entitled to have. The defendant refused this deed, pro- cured a new survey to be made and tendered a new deed for execu- tion by the plaintiff, and this deed the plaintiff refused to execute. When the first instalment of the purchase money became due the de- fendant tendered it, but did not pay it in consequence of the non- execution of the conveyance. The defendant continued to use the land for a mill pond, and gave no intimation of his intention to abandon the contract, and twelve months afterwards the plaintiff filed a bill for specific performance of the contract, which was decreed without costs. (Blake, C, dissentiente.) Paul v. Blackwood, 3 Grant, 394.. ft ^ ^/fA<^ ^ frZ-^^Or^ 15— Parol agreement. Where a person already in possession of property entered into a contract with the agent of the proprietor for the purchase of the pro- perty, and it was the interest of both parlies that the purchaser should go on making improvments, and did so with the knowledge of the agent without objections on his part, the improvements are such an acting on the contract as will take the case out of the statute of frauds. Jennings v. Robertson, 3 Grant, 513. U— Statute of frauds. Where the agent of a person resident out of the province sold, by parol, half a lot of land of the principal's, and afterwards wrote and gent him a letter in which the agent detailed the terms of the con- tract, but mentioned the whole instead of half the lot, and the mis- take was clearly proved ; whether this would be a sufficient note in writing to satisfy the provisions of the statute. Qucere. lb. 17— Vendor and purchaser. One K, in 1835, purchased from the defendant part of lot number one, being a portion of a block of land owned by the latter ; and two j-eara afterwards agreed for the purchase of fifty feet additional land, and then erected his fences, inclosing on the North twenty-seven feet and on the West six feet, and on the South a quantity of land which Mold not now be defined additional to the original purchase. Of 576 EQUITY DIGEST. the land so enclosed, K and those claiming under him, remained in undisputed possession for about ten years, with the knowledge of the defendant, who acted as agent for some years In respect of this prop- erty^ and was constantly in the habit of visiting it whilst the fences were in course of erection . The plaintiff having purchased this prop, erty from K, afterwards purchased from defendant the remainder of a lot situate on the South thereof, whereupon he removed the south- ern fence that had been erected by K, in order to put all the land into one parcel ; on a plan of the property made by the defendant a lane had been laid out on the South of the original purchase seven- teen feet wide, and on the West another lane, six feet whereof were comprised within the limits of lot number one, K's fences enclosed the six feet on the West, and were supposed to have embraced the seventeen feet lane on the south, which, together with the twenty- seven feet to the North, made in all fifty feet. The vendor subse- quently sought to recover possession of the strips of land tu the North and West, whereupon the plaintiflF filed a bill to restrain the action at law, and for a conveyance of the land. No place could be assigned to the fifty feet, unless the twenty-seven feet and six feet formed part of it: and it having been established that the purchase money for the fifty feet had been paid, the Court made the decree as prayed, with costs. HowcaiU v. Kees, 3 Grant, 527. 19 — Laches. Delay in filing a bill to enforce a disputed agreement for a part- nership, was considered sufficiently accounted for by evidence of an unanswered proposal for an arbitration, and of correspondence be tween the plaintiff and his solicitors before suit Haggart v. Allan, 4 Grant, 36. 20 — Laches. Under the circumstances of this country, a much less delay willin many cases be sufficient to bar a party from obtaining a specific per- formance of a contract for the sale of land, than would be sufficient for that purpose in England. Hook v. McQueen, 4 Grant, 231. 21 — Contract. In the course of correspondence, which the Court was of opinion amounted together to a complete contract for the sale of the lands in question, by the defendant to the plaintiff, the defendant wrote a letter to the plaintiff's agent, containing the following passage: "I am strongly advised to retain them, but having other ground on whioh to build, and having some objeota in view whioh I think lai; EQUITY DIGEST. 577 er him, remained in the knowledge of the respect of this prop- it whilst the fences ; purchased this prop- ant the remainder of B removed the south- to put all the land s by the defendant a ;inal purchase scven- ix feet whereof were , K's fences enclosed ) have embraced the her with the twenty- The vendor subse- jtrips of land to the a bill to restrain the , No place could be ren feet and six feet id that the purchase rt made the decree as l527. agreement for a part- for by evidence of an correspondence be Haggart v. Allan, luch less delay will in taining a specific per- in would be sufficient sen, 4 Grant, 231. Court was of opinion le sale of the lands in le defendant wrote a >llowing passage: "I ing other ground on !V which I think mj be aocomplished with the proceeds, 1 feel inclined to sell at £1,000. That amount in hand would suit me much better than to have a small portion, say £250, on interest for so long a period. I dare say it would be quite the same thing for your friend to pay the whole at once. In order to raise a sum to pay for a property in Albion, which Archey has been improving, I ;;^ave in his behalf a short time since the mortgage to the University for £500, on the Niagara street lots, to be paid in five years. If your friend should decide on givint^ the whole, I have no doubt the University would take a security on the Albion property, the title of which is secured by the advance and release the lots on Niagara street. The Albion property will more than pay up the mortgage within five years. Perhaps as mat. ters stand, your friend would take other security to bear him harm- less, as to the £500, and so, it might be unnecessary to trouble the University on the subject." In the subsequent, correspondence, nothing was said as to this mortgage on either side ; and it was held by all the judges that the contract was complete. It appeared from the other correspondence that the defendant's object in selling, was to obtain the immediate use of the whole of the purchase money, and the Vice-Chaqcellors held that he was not bound to pay ofiF the mortgage ferred to out of the purchase money, that, he was bound to transfer it to the Albion property, and any other property he had if the University would consent to the exchange, and if the University refused, he was bound to indemnify the plaintiff against the mortgage. Arnold v, McLean 4 Grant, 337. But this decision was reversed on appeal, The V. C. C, dissent- ing McLean v. Arnold, 6 Grant, 242. See " decisions overruled, &q." 22— Condition precedent. A vendee covenanted to fence the land contracted for forthwith and to build a house within a limited time, and the vendor at^reed upon payment of the purchase money, and the due fulfilment of all the other covenants entered into by the vendee, to convey the prem- ises in question. The vendee without waiting for the lime appoint- ed for payment of the purchase money, and without either fencing in the land or building thereon, tendered the amount of his purchase money and interest, and demanded his deed, which being refused he filed his bill for specific performance of the agreement to convey ; the OoQtt refused relief, and dismissed the bill with costs. Allan v. ^oion, 4 Oraat, 439. 4a 578 EQUITY DIGEST. ■.* 1 ■ 23 — Saiv logs. The Court will decree the specific performance of a contract for the manufacture and sale of saw logs, whiere they are capable of being identified, and possess a peculiar value for the purchaser Steveiuon V. Clarke, 4 Grant, 540. S. P. Fuller v. Richmond, 4 Grant, 657. 24 — Where refused. A party agreed to purchase for £200 a small piece of land, worth intrinsically not more than £7 10s, for the purpose of using it as a mill pond, and in order to protect himself against suits at the instance of the owner ; but, owing to a dispute as to the metes and bounds of the land, no deed was ever executed until after the purchaser's mill was destroyed by fire, when the vendor tendered the deed ; but the vendee not then requiring the use of the land, declined to com- plete the agreement. The Court refused to enforce the contract and dismissed the bill of the vendor filed for that purpose with costs- (The Vice-Chancellors dissenting.) Blackwood v. Paul, (on appeal) 4 Grant. 550. 25 — Unreasonable bargain. When a party agrees to convey property, he is bound to do so free from dower, or if the wife will not release her dower, then to convey subject thereto, with an abatement in the purchase money. Ken. drew V. Sliewan, 4 Grant, 578. 26 — Statute of frauds. A vendor having agreed to sell a piece of land, afterwards convey- ed the same to a third party, with notice at an advanced price, alleg- ing as a reason for so doing, that he had been deceived in making the agreement. The Court decreed a specific performance of the contract, the statements in the answer having been contradicted by the person by whom the defendant swore he had been misled. Detme v Griffin, 4 Grant, 603. 27 — Speculative purchase. The Court will not encourage speculative purchases, where, there- fore, it was shown that a purchaser had not the means of paying for the property contracted to be sold, and after several demands upon him to complete the purchase, the vendor sold to a third party with the knowledge of the original purchaser, who did not forbid tho sale, and appeared to acquiesce in it : but afterwards, when, by rcuHon of the construction of a railroad, the land had increased very much in value filed a bill to obtain a specific performance ot his contract ; the Court dismissed the bill with costs Langstaffe v. Mansfield, 4 Giant, 607. r^. EQUITY DIGEST. 579 I of a contract for tie ire capable of beiog archaser Stevenson mond, 4 Grant, 657. piece of land, worth pose of using it as a ) suits at the instance e metes and bounds ftcr the purchaser's dered the deed ; but ad, declined to com- nforce the contract, b purpose with costs- t'. Paul, (on appeal) bound to do so free )wer, then to convey ibase money. A'en. , afterwards convey- idvanced price, alleg- ceived in making the lance of the contract, dieted by the person Devaie r Gnffin, sbases, where, there- means of paying for veral demands upon o u third party with not forbid the sale, when, by reason of ;d very much in value contract; the Court !tJiefd,4QiJint,m, 2B— Interest — Parol evidence. A vendor executed an agreement to convey certain premises, and receive back a mortgage for part of the price, payable by instalments, but omitted to say that the mortgage should be made, payable with interest ; in a suit brought to enforce specific performance of the agree- ment and to compel the vendor to accept a mortgage without inter- est parol evidence was admitted to shew that the real understand- ing of the parties was that interest should be made payable by the mortgage. Gould v. Hamilton, 5 Grant, 192. i^—Jnterest. Where a suit was brought to compel the acceptance of a mortgage in part of the purchase money without interest, and the defendant in his answer thereto, swore '' I have always said that I was ready and willtog, and have offered to complete the sale of the said property to the plaintiff, provided interest on the unpaid purchase money was included in the mortgage," and also " I submit and insist that unless the plaintiff will consent to pay interest on the unpaid purchase money aforesaid, he is not entitled to any relief in this Court." The Court treated these statements as submitting to a decree for specific per- formance with interest reserved by the mortgage, and made a decree accordingly, lb. 30 — When decreed without costs. The parties to an agreement differed as to its proper construoiion on one point, which the plaintiff at first refused to give up, and the de- fendant in consequence treated the agreement as at aii end ; the Court thought there was some ground for the claim set up by the plaintiff, though he had subsequently abandoned it, and under the circumstances decreed a specific performance of the agreement, but without costs. (The Chancellor dissentincr.) Gray v. Springer, 5 Grant, 242. y^^^^^^y ^ .^y^^ / ^^— ^ ^/^ /'^^/f / 31 — Crown — Order in council. This Court cannot enforce against the crown specific performance of an order in council. 5^Sjmpson r. Grant, 2Q7. 32 — Vendor and purchaser. The defendant agreed for the purchase of a factory, situate near a small stream, intending to carry on in the building his occupation of Boap and candle manufacturer. After the contract had been entered into, the defendant discovered that he would not have a right to throw the refuse of his factory into the stream, and without the privilege of ;1 i 580 EQUITY DIGEST. 80 using the stream the property wouuld be useless for the parpoie he had intended to apply it to, and of which the vendors were awan at the time of entering into the contract. Held, notwithstanding that the vendee was bound to complete the contract, although the vendors had not pointed out the fact at the time of the sale. Jamet V. Freeland, 5 Grant, 302. 33 — When refused with costs. A person in possession of lauds contracted in the year 1848 with the proprietor for the purchase thereof, and about a year aiUr- wards, without having paid any portion of the purchase money, ab- sconded from the Province, leaving some members of his family Id possession of the property. In June, 1850, the owner having f^ed to effect any settlement with his vendee, obtained possession in an action of ejectment w' .ch he had instituted, and in January, 1851, sold the property to another purchaser, who went upon the land and re- mained in possession until the September of 1853, and laid out large sums in improvements, when the original vendee assigned his agree- ment to the plaintiff, who thereupon filed a bill for the specific per- formance of the agreement. The Court dismissed the bill with costs. Van Wagner v. Terrylerry, 5 Grant, 324. 34) — Injunction. The owner of lands over which the Grand Trunk Bailway would pass, offered to convey a portion thereof for a station house upon certain conditions, which offer was rejected. Afterwards an agree- ment was made with the solicitor of the contractors which was re- duced into writing and si;ir^-a ly the owner, agreeing to convey a quantity of land, not to - ' ten acres, upon condition that the station should be plbceng at auctions. A sale of lands by auction being about to take place, an intending purchaser in conversation with a person who had previously purchas- ed a portion of the same property, was told by him that he intended buying additional portions thereof, and that he expected the property would fetch about £70 or £80 an acre, and that he was prepared to go as high as £100 per acre for that portion which he intended to buy. It was shewn that by an arrangement between the owner of the estate and this person, it was screed that he should have the lots desired by him at the same price as he had paid for his first purchase, no mat- ter at what price they might be knocked down to him ; and they were accordingly bid off by him at a rate much higher than that formerly paid by him. Held, that this was not puffing, although it ipight have the effect of misleading the intending purchaser, who swore that he had reliance on the opinion of this party ; but as he did not swear that he had been influenced by the example of this person or the in- formation thus given by him, the Court decreed a specific performance of the contract for the purchase of certain portions of the estate bid off by him at the auction. Crooks v. Davis, 6 Grant, 317. i5—Mibrepresentationfi of advertisement. By the advertisement of an intended sale of land in lots it was stated " The soil is well adapted for j'urdening purposes and a considerable portion of the property is covered with a fine growth of pine and oak, which will yield a large quantity of cordwood, and the remainder is covered with an ornamental second growth of evergreen and various other kinds of trees," A purchaser at the sale, which took place upon 584 EQUITY DIGEST. the property, set up as a defence to a suit forspeciGc performance, that the soil was not such as represented, and was unfit for gardening par. poses, and that the trees on the property were not of the description stt forth in the advertisement. Held, that these representations, havine been made in respect of matters which were objects of sense, and as to which an intending purchaser ought in prudence to have examined for himself, formed no ground for relieving the purchaser from the contract, lb. 46 — Signing of contract. A paper used at the sale by auction of certain lands contained the the conditions of sale and the number of the lots bid ofi by the several purchasers, upon which tl;eir names were written in pencil opposite the lots purchased, and afterwards covered over with ink by the auc- tioneer's clerk, it having been announced before the sale that he would sign for the several purchasers. Held, that this was a sufficient sign- ing of the contract within the meaning of the statute of frauds. /J. 47 — Tenant in tail. A decree for specific performance will be made against a tenant in tail. Graham v. Graham, 6 Grant, 372, J«int tenants in tail executed articles of agreement for a division of the property, and each went into possession, and for thirty -six yean continued to enjoy the portion allotted to him, when a bill was filed to enforce the agreement. Held, that the defendant could not set op as a defence to such bill that the plaintiff" had by possession acquired a perfect title at law. lb. 48 — Ladies. A lease was made of certain premises, with a right of purchase at a price fixed on between the parties, being such a sum as the rent reserved would form the interest of. The lessee made default in pay- ment of all principal and interest and abandoned the possession, and left the premises for the United States, and the lessor, being unable to ascertain the place of residence of the lessee so as to put an end to the contract, obtained possession by a writ of habere facias issued in an action of ejectment brought upon a vacant possession. The lessee, after a third instalment of interest fell due, caused a tender to be made of what had become due, which was refused, and about a year after- wards filed a bill to enforce the specific performance of the contract The Court considered the laches of the plaintiff' such as to disentitle him to relief, and dismissed the bill with costs. Young v. Bom,i Grant, 402. EQUITY DIGEST. 585 de against a tenant in 49— Cos<8. To a bill for specific perfurmancc of an agreement to purchase lands, the vendee set up that he had been led into drink by the fraudulent contrivances of the vendor, and while in an insensible state of intoxicBticQ had been induced to sign the agreement, in which the price stipulated to be p:ud for the property was most exor- bitant, and which was now souj^ht to be enforced. At the hearing it was shown that the purchaser had been at the time of executing the contract intoxicated, and that the price agreed to be paid was exorbitant, but the Court exonerated the vendor from any fraudulent conduct, and therefore refused to give the defendant his costs on the dismissal of the bill. Sdwlfield v. Tuminonds, 6 Grant, 568. 50 — Roads. The fact of the sale having been efifected according to a plan of the property, upon which were shewn certain roads leading to the Mverai lots, does not bind the vendor U laike such roads, although the Court would restrain the diversion to any other purpose of the land appropriated for such roads. Cheney v. Cavieron, 6 Grant, 623 51— Title. Before the Court will compel a purchaser to accept a title, it must be shewn that the title is reasonably clear and marketable, without doubt a^ to the evidence of it. Where, therefore, the deed to the vendor was executed on the 14th of February. 1854, and in Decem- ber of 'that year a commission of lunacy was issued against the grantor in that deed, under which it was found that he was insane, and had been so from the month of February or March previous, the Court refused to enforce the contract. Francis v. St. Germain, 6 Qrant, 636. Where the lunacy of the previous owner of the estate was relied on as an objection to the title, and the vendor alleged that if such were the fact it was shewn that he had purchased fairly, and without no- tice of the lunacy, as a ground for enforcing the contract : but, as the fact that the vendor had purchased without such notice, was one which from its nature was incapable of proof, and notice on some future occasion might be clearly shewn, the Court allowed the ob- jection, and diamiiised the vendor's bill with costs, lb. Inquiry decreed. (2.) In a contract for the sale of property, it was agreed to be paid for in part by an assignment of a mortgage to be obtained from . 4b I I If!.; Ji; . 586 EQUITY DIGEST. a third party, afterwards the purchaser alleged the refusal of tj|« mortgagee to assign. The Court under the circumstanoea refused to decree specific perfurmunoe, but directed an inquiry whether or not the mortgagee was still willing and able to assign the mortgage. At- nold V. Hull, 7 Grunt, 47. 52 — Rectijicatiuii of deed — Stayi7ig proceedings in appeal In suits for the rectification of deeds, the Court is in the habit of allowing great weight to the statements made by the answer in op- position to the relief sought by the bill ; where, therefore, on the sije of a steambout the vendors gave a bond binding the mselvcs uncon- ditionally to procure a conveyance of the vessel, to be executed tothe purchasers within three months thereafter, and delivered possesion to them ; but the conveyance was not made as stipulated, and two years afterwards the vessel was taken out of the possession of the purchasers upon process issued against the owner, and under a mortgage pre- viously existing upon the vessel. A bill was filed by the vendors for the rectification of the bond, by introducing therein certain stipulations set forth in a memorandum made by the holder of the incumbrance at the foot of the vendor's bond, and which the in- cumbrancer swore he had made in order that the purchaser might have notice of his claim, and also a receipt given by him ^rhen paid part of the claim he held against the vessel ; the purchasers in their answer asserted that they never had intended to abridge their rights under the bond, and never would have consented to the intro- duction therein of any stipulations which would have had that effect; and as the alteration of the bond in the manner proposed would have had the effect of materially affecting the rights of the purchaser to their prejudice, and there was nothing inconsistent in the facts being as the purchasers alleged them to be, the Court under the circum- stances refused the relief prayed, and dismissed the bill with costs. CoUon V, Corby, 7 Grant, 50. (Affirmed on appeal, 3rd Feb., 1800, 8 Grant, 98.) 53 — Principal and agent — Part performance. Upon a bill filed by an infant claiming a conveyance from the de- fendant, on the ground of his havi'^g acted as aiient for the ancestor in obtaining the title, the evidenct .onded to establish the fact that the property had been purchased by the defendant for his son, and he received payments from the son with the understamding that he (the gon) should obtain a deed when his payments were completed. The Court at the hearing offered the plaintiff an issue as to the question of EQUITY DIGEST. 687 igeney or leave to amend the bill upon payment of the costs of the day, and the proceedings that would be thus rendered useless, and if this WIS refused, ordered that the bill should be dismissed without costs, the defendant's answer having been falsified. Jackson v. Jackton, 7 Grant, lU. li^— Coats — Return of deposit. Where a bill by a purchaser seeking specific performance of a con- tract for the sale of lands, is dismissed because a good title cannot be shewn, the Court will order a sum paid on account of the purchase money to be returned to the purchaser, and in default give him a lien therefor on the estate agreed to be sold : but in such case unless the vendor has been guilty of fraud in the transaction, the bill will be dismissed without costs. Hard r. Rnhertson, 7 Grant, 142. $$— Where refused. A party had entered into an agrccnicnt to accept a lease of land, but in preparing the conveyance in pursuance of such agreement, he insisted pertinaciously upon a stipulation being introduced into the lease which it was subsequently shewn he had not any right to call for, and he ultimately waived his claim to it, but having previously declared he would never accept of a lease which did not agree with his interpretation of the contract, the owner of the land treated the agreement as at an end, and proceeded to erect a valuable building upon it. The proposed lessee thereupon filed a bill for specific per- formance of the agreement according to the interpretation put thereon by the lessor. He/d, reversing the decree of the Court of Chancery, that the plaintiff was not entitled to the relief sought, and that his bill in the Court below should be dismissed with costs, (Spragge, V. C, dissenting). Springer v. Gray, on appeal, 7 Grant, 276. 5Q— Conditions of sale — Statute of frauds. A testator devised his lands to trustees to distribute and divide the same amongst his wife and children as soon as the youngest surviving child attained twenty-one. The trustees professing to act in pursuance of the powers given by the will put up portions of the property at auc- tion for an absolute term of twelve years, at the expiration of which the youngest child would attain twenty-one, with a privilege to the lessee of removing any buildings that might be upon the premises at the expiration of the terra, and the lease, as prepared by the trustees, gave to the lessee a right of purchase ;it the expiration thereof, or, if he declined purchasing, stipulated that the improvements would be j ptdd for by the lessors, On a bill filed by the trustees to enforce 588 EQUITY DIGEST. specific performance of this contract. Heir/, that the agreer--^ -t wag vl/ra vires, and the bill was dismissed without costs, the defendant having set up several grounds of defence which entirely failed. Dal- tm r. McBride, 7 Grant. 288. 57 — Signed agreement — Statute of frauds. A signed agreement expressed that the subscribers had purchased at auction the lots of lands set opposite to their names respectively, according to the terms of sale made known at the time of sale, and they agreed to take the deed, bond, or agreement, or lease, as the case might be, to each of them individually on condition of their having made the payments according to the conditions of sale. The condi- tions of sale thus referred to had been printed and distributed ir band bills, and were read to the purchasers at the auction. Held, that the conditions of sale were sufficiently referred to by and incorporated with the signed agreement so as to constitute a binding contract in writing within the statute of frauds, lb. 58 — Decreed under certain circumstances. Upon an agreement for the sale of real estate which had been pre- viously laid out into building lots, the purchaser's agent signed a memorandum to the following effect : " The purchase from the bank is to cover the entire property of the C estate within the original boundaries, except that sold off with appurtenances and privileges, so that the purchaser may make arrangements with the purchasers of lots to close the streets laid out if desirable." The purchaser refused to complete the purchase, on the ground that without the power of shut- ting up one of the streets the object for which he had effected the pur- chase would be entirely frustrated, which object he had communicate J to .the agent of the vendors at the time of negotiating for the purchaae Held, notwithstanding, that the purchaser was bound to complete the contract. The Commercial Bank v. McConnell, 7 Grant, 323. 59 — Acceptance of title. The purchaser of real estate on which was erected a grist mill, in pursuance of the agreement for purchase, took possession, and while in occupation made several alterations in the property, took the mill gearing and machinery from the premises, and removed the partitions in the mill intending to convert the mill into a planing factory, and the expense of restoring the property to the condition in which it was whep he entered into possession was variously estimated at from £100 to £500. Held, that by these acts the purchaser had waived his right to call for a good title, lb. EQUITY DIGEST. 589 le agreer" 'twas ts, the defendant rely failed. DaU rs had purchased iraes respectively, time of sale, and r lease, ag the case n of their having sale. The condi- listributed ir band (1, Held, that the and incorporated inding contract in hich had been pre- r's agent signed a ase from the bank yithin the original s and privileges, so the purchasers of urchaser refused to the power of shut- ad effected the pur- had communicatrj mg for the purchase md to complete the r Grant, 323. cted a grist mill, in )ssession, and while )erty, took the mill aoved the partitions >laning factory, and edition in which it y estimated at from •chaser had waived 60 — Agreement by letter. An agreement by letter was entered into by an intending lessee to take a lease for years of a house, and that the rent agreed upon should be increased according to the an'ount which might be afterwards ex- pended by the owner in improvements upon the property. In pur- suance of such agreement the party entered into possession and paid rent according to the stipulations contained in the letters. The mu- nicipal authorities afterwards constructed a bridge near the property, which the tenant asserted injuriously affected his occupation. Held, notwithstanding that the defendant was bound to accept a lease in the terms agreed upon. Dmni.son v. Kennedy, 7 Grant, 342. 61 — Accejptance of title. Where the vendor sells only such title as he has, the purchaser cannot require a good title to be shewn, but will be compelled to complete his purchase although the vendor does not shew a good title, or although the title appears not to be good. But where a vendor, by the terms of the agreement, bound himself to convey only as good a title as he could obtain from his vendor, and it was shewn that neither of these parties had any title whatsoever to the property agreed to be sold, and that the vendor had misrepresented the state of the title, and had induced the purchaser to give the full v~' e of the land ; the Court ( Blake, C, dissentiente") refused to enforce the agreement, but, under the circumstances, dismissed the bill without costs. Leslie v. Preston, 7 Grant, 434. 62 — Purchase money payable by instalments. — Investiga- tion of title during term of credit. — Rescinding Contract. On a purchase of land, the price for which is payable by instal- ments, the purchaser, although not entitled in the meantime to call for a rescision of tho contract, may require his vendor to shew a good title before parting with any portion of the purchase money, and in the event of the vendor taking proceedings to enforce payment, the purchaser, upon bringing into Court the amount of principal and interest actually due, will be entitled to an injunction to restrain the action until the title has been investigated ; and tho fact that prior instalments of the purchase money have been paid will not disentitle the purchaser to insist upon a good title being shewn. Thompson v, Brunskill, 7 Grant, 542. 63 — Ambiguity of Contract — Misunderstanding. Specific performance will not be decreed where the terms of the oontaot eigned by the parties are uncertain, nor will it be decreed 590 EQUITY DIGEST. where it is plain from the evidence that there was a misanderstand- ing. Where therefore the terms of the agreement contained in a letter written by the intending purchaser were " we will give you for your mill privilege in Laxton, with all the improvements, includ- ing the saw logs and your claim on the land you applied for, viz : the north half of 6 in the 11th, and the north half of 7 in do. ; lots 6 and 7 in the 10th concession, four thousand dollars," &c. In reality the premises mentioned contained two mill privileges, but the vendor in- sisted that only one was embraced in this agreement, and filed a bill to enforce the specific performance of the contract according to this construction, whilst the defendant by his answer insisted that both were included in bis offer to purchase. The Court dismissed the bill, but without costs, the defendant insisting upon the case being heard by way of motion for decree pursuant to a notice given by the plaintiff, from which he afterwards desired to withdraw. McLaugh- lin V. Whiteside, 7 Grant, 573. 64 — Decree in absence of personal representative. The eldest son and heir-at-law of a person who had in bis lifetime agreed for the purchase of land from the Canada Company, left this country without in any manner attempting to complete the purchase. The other children of the purchaser paid the balance of the purchase money due on the land and sold it in portions to three several pur- chasers. In a suit brought in the name of the several purchasers against their vendors, and the Canada Company, it appeared that the lieirat-law had not been heard of for upwards of twenty-five years. The Court under the circumstances ordered the conveyance of the several portions to the purchasers, without requiring any administra- tion of the estate of the heir-at-law, the Canada Company not object- ing thereto. Burns v. The Canada Compani/, 7 Grant, 5S7. 65 — Bond of uidemnlty against Incumbrancers. Upon a contract for sale of an estate subject to a mortgage, it was stipulated that the vendor should execute a bond to save harmless and indemnify the purchaser against the incumbrance, and a sum of £500 by way of liquidated damages for non-performance by either party was to be paid to the other. The Court held that this did not enable either party to repudiate the contract upon paying to the other £500, and in a suit by the vendor a reference as to title was directed, but without the usual declaration that the plaintiff was en- titled to specific performance, reserving a right at the hearing on fur- ther directions to refuse specific perfort nco in the event of the ven- dor failing to effect or endeavouring to effect an arrangement with the EQUITY DIGEST. 591 msandeTstand- oontained in a \»ill give you ements, include ied for, yiz : the do. ; lots 6 and In reality the t the vendor in- , and filed a bill iccording to this sisted that both rt dismissed the I the case being tice given by the raw. McLaugh dive. ad in his lifetime Company, left this jlete the purchase, je of the purchase ihrce several pur- several purchasers appeared that the twenty-five years, sonveyancc of the ig any adrainistra- , )rapany not object- kant, 5S7. ICI'I'S. a mortgage, it was » save harmless and 30, and a sum of )rmance by either leld that this did ipon paying to the ce as to title was le plaintiff was en- the hearing on fur- le event of the ven- rangement with the * mortgagees, which the vendor alleged he could make; and held, also, that the fact of the vendor being a partner in a mercantile firm, which since the execution of the contract, had made a composition with its creditors was not such an objection as could resist the claim to specific performance. Fiskin v. Wride, 7 Grant, 598. (j6 Time, essence of contract — l^aiver of. By the terms of the contract for the sale of certain real estate be- longing to infants it was stipulated that if at the end of the seven teen months the approval of the Court of Chance y had not been ob- tained to the sale then made, the contract should be at an end, thus rendering time of the essence of the contract. The sale was not com- pleted by the time specified, and some months afterwards the pur- chaser acquiesced in proceedings then taken to perfect the title. Held that ho had waived the condition that time should be the essence of the contract. McDonald v. Garretl, 7 Grant, 606. 67 — Rescission of contract. Sembte. A purchaser cannot file a bill for a rescission of his con- tract, but must wait until the vendor attempts to enforce the agree- ment, lb. See also •' Judgment Creditor," 3. 68 — Executors. An action having been instituted by a legatee against the executors and residuary de\ Isees of a testator, alleging an express agreement by all to pay interest upon a legacy which by the law was npt re- coverable, to which the executors pleaded, and judgment was given in their favor ; but judgment was recovered against the residuary legatees by default, who afterwards filed a bill against the executors claiming the specific performance, of a covenant by the executors to indemnify against the claim of such legatee. Held, affirming the decree of the Court below, that their own default having been the cause of the judgment passing against them, formed no ground for the residuary devisees coming into equity for indemnity. Crooks v, Torrance, 8 Grant, 220. The general rale is that only the parties to the contract should be parties to a suit for specific performance. Crooks v, Glenn, 8 Grant, 239 The vendor, after contracting with the vendee, had granted a lease with the right to purchase. It did not appear whether the option had been exercised, or th« time for exeroising it had arrived. The 592 EQUITY DIGEST. lease had been assigDed, and the defendant, tho vendee, objected that the assignee should be a party to this suit, but the Cout t overruled the objection, lb. 69 — Payment of ijurchase money into Court before good title shewn. Possession and user of the premises do not deprive the vendee of his right to have u good title shewn ; but where unreasonable delay has occurred in requiring title to be adduced, the Court will order the purchase money to be paid into Court, pending the investigation of the title, lb. Where promissory notes had been given in payment rf the purchase money of land, and several years afterwards a bill was filed by a ven- dee of the original proprietor, against the heirs-at-Iaw of the original purchaser, it was held that the promissory notes must be produced or satisfactorily accounted for before the purchase money would be or- dered to be paid, even although a good title were shewn, lb. 70 — Purchasers notice of defective title — Acceptance of title. A is the owner of fifty acres of land, the title to one acre of which is defective. B, with knowledge of the defect, agrees to purchase the whole for a certain sum. B, with others, has at the same time an independent interest in the one acre, and obtains a decree order- ing A to convey it to him and the others. A then filed a bill for specific performance of the contract with B. Held, that B must pay the whole of the purchase money on receiving a clear title to the remaining forty-nine acres. Cttrran v. Little, 8 Grant, 250. 71 — Fraudulent conveyance — Injunction. In a suit for the specific performance of an agreement for the sale of lands, or to set aside a conveyance for fraud, the plaintiff is not of right entitled to an injunction to restrain alienation, unless it is alleged by the bill and proved that the holder of the lands threatens and intends to convey the lands. Kvrr v. Hillman, 8 Grant, 285. 72 — Infants. t In a suit for specific performance where there were infant defen- dants, the Court held the plaintiff's laches precluded him from ob- taining relief, but directed an enquiry whether it would be beneficial to the infants to affirm or annul the contract. If found beneficial to affirm it the plaintiff might excuse his laches, but, s< mbk, all the parties beneficially interested must consent to the enquiry. Chevu' Her V. Strong, 8 Grant, 320. EQUITY DIGEST. 593 iee, objected that Couit overruled trt before good Lve the vendee of areasonable delay Court will order ; the investigation jntrf the purchase was filed by a ven- aw of the original lUst be produced or oney would be or- shewn. lb. xeptance of title. p one acre of which agrees to purchase at the same time ins a decree order- ;hen filed a bill for ^eld, that B must ring a clear title to 8 Grant, 250. reement for the sale the plaintiff is not enation, unless it is the lands threatens lan, 8 Grant, 285. were infant defen- uded him from ob- . would be beneficial f found beneficial to but, s< mhlc, all the lie enquiry. ChevU' 73 — Sale of mill — Reference as to damages. The vendor and vendee of a mill and water power (the vendor us- ing the same water for another mill) disagreed in their construction of a contract of sale, as to who had the first right to use the water, there not being enough water for both during the greater part of the year, the Court was of opinion that the vendee had the better right to the first use of it, and that the vendor by using the water and de- priving the vendee of the use thereof committed a breach of the agree- ment and was liable in damages, the amount of which the master was directed to ascertain. Bishop v. Merkley^ 8 Grant, 335, 74 — Costs. Where » purchaser objected to the title offered by the vendor, and refused to pay the balance of the purchase money, but remained in possession of the premises, and the vendor brought ejectment to re- cover them, falsely denying the payment of part of the purchase money, the purchaser was held entitled to the costs of a suit in equity to re- strain the action of ejectment and couipcl specific performance, not- withstanding the vendor made a good title when required by the Court. Healy v. Ward, 8 Grant, 337. 75 — Making good title. A clause in the conditions of sale that the vendors shall only produce certain title deeds and an abstract of the registrar's, and that the purchaser shall not be entitled to call for .any other proof of title, does not exempt the vendors from shewing otherwise a good title. Gan- ada Permanent Building Society v. WaJlis, 8 Grant, 368. 76 — Laches. On an agreement for the sale of lands the vendors let the purchas. era into possession, but some years afterwards, in consequence of default in payment of the purchase money, the vendor obtained pos- session by means of ejectment ; subsequently the purchase money was tendered to the vendor, who refused to accept it, and the puro'iasers took no steps for eighteen years to enforce their claim, during all which time the vendor remained in possession as owner, the property during the interval having increased very much in value, Under the circumstances a bill filed by the purchasers and subsequently revived by their representatives, was dismissed with costs. Crawford V. Birdsqll, 8 Grant, 415. 77 — Dower, contract for sale of land subject to. The Court refused to enforce a contract for the sale of land which was subject to an outstaading claim for dower, until the title for 4c 594 EQUITY DIGEST. dower was removed ; but the defendant in lii3 answer having set up as a defence, charges of fraud which were not established, witheld from him his costs of the suit Chanlhr v. Ince, reported 7 Grant, page 432, observed upon. Thompson v. Brunskill, 7 Grant, page 542, approved of. Gamble v. Gummerson, 9 Grant, 193. 78 — Voluntary agreement. A person about to effect the purchase of land, stipulated verbally with another who had been accustomed to use a road over the prop- erty, that in the event of the purchase being completed he would be allowed to continue the use thereof, but afterwards refused to carry out such agreement ; held, that this promise was merely voluntary, and as such insufficient to found a bill for specific performance upon. Barr v. Hatch, 9 Grant, 312. 79 — Enqairy as to title — Deed sixty years old — Taxes. On an enquiry as to title the vendor was unable to produce one of the title deeds, or to shew that a receipt was endorsed thereon for the purchase money. Held, no objection to the completion of the contract, so also that the non-production of a certificate of no taxes in arrear was no objection to the title. Thompson v. Millikin, 9 Grant, 359. 80 — Principal and agent. The owners of several lots of land employed an agent to sell them, and for the purpose of enabling the agent to effect sales, delivered to him blank forms of agreement, signed and sealed by them, leaving it necessary for the agent only to insert the name of the purchaser, the property sold, and the amount of purchase money to be paid ; at the same time verbally instructing the agent to reserve all pine timber fit for saw logs upon effecting any such sales. The agent sold one of the lots, and after filling in the necessary blanks, delivered to the purchaser one of the agreements without any reservation of the tim- ber, and the vendors subsequently refused to adopt the sale without such reservation being made, and commenced telling timber upon th( land. Upon a bill filed by the purchaser for a specific performance of the contract before the time limited by the instrument for its com pletion, the Court declared that the writing so delivered to the plain tiff contained the true agreement between the parties, leaving it U the vendors to enforce any claim they might have against their agen for having acted in breach of their instructions, and ordered the de fiendants to pay the value of the timber cut and removed by theni ' '7^3 EQUITY DIGEST. 595 answer having set up »t established, witheld ce, reported 7 Grant, mskill, 7 Grant, page [}rant, 193. nd, stipulated verbally a road over the prop- completed he would be wards refused to carry was merely voluntary, sifio performance upon. >ars old — Taxes. unable to produce one as endorsed thereon for ) the completion of the a certificate of no taxes Thompson v. Millikin, 9 ed an agent to sell them, to effect sales, delivered i sealed by them, leaving name of the purchaser, ase money to be paid ; at ; to reserve all pine timber cs. The agent sold one f blanks, delivered to the ly reservation of the tiin- to adopt the sale without ed telling timber upon the 'or a specific performance le instrument I'or its com- 80 delivered to the plain- the parties, leaving it to it have against their agent ions, and ordered the de- nt and removed by them, together with the costa of the suit. Jury v. Burrows, 9 Grant 367, (Affinhed on rc-hearing, 16th February, 1864.) gl—Agree'inent to add interest to principal. Where, by the terms of a contract for sale and purchase of land, it was stipulated that in the event of interest on the unpaid purchase money being unpaid at the end of each year, the same should be added to the principal, and the purchaser filed a bill praying for a conveyanceuponpaymcntof the amount of principal and simple in- terest only ; the Court refused to decree specific performance, except upon the terms of payment of the interest according to the stipulation in the agreement ; and semble, that he would in like manner have been bound to pay this amount if the bill haibeen filed by the vendor seeking to enforce the sale. Henderson v. Dickson, 9 Grant, 379 82 — Agreement to devise. The owner of real estate having become greatly enfeebled and un- able to wait upon himself, offered to his son that if he would relinquish his own farm and come and reside with his father and take care of him during his life, that he would give the farm upon which he (the father) was resident, to his son. To this proposal the son acceded, and removed with his family to the residence of the father, who, it was alleged, subsequently made a will, devising the property to the son ; but after his decease no trace of the will could be discovered, nor was tliere any satisfactory account given of it. Held, that there had been sufficient part performance to take the case out of the statute, and the Court ordered the heirs-at-law to join in convey- ing the property to the son. Black i\ Black, 9 Grant, 403. h^— Infants. The holder of a mortgage on real estate, and of a judgment re- covered against the mort ;agor, entered into an agreement after the death of the mortgagor with his widow and two of the heirs for the release on certain terms of the equity of redemption in the mortgaged premises, and also for the conveyance to him of another portion of the real estate, in discharge of the mortgage and judgment debts. On a bill filed to enforce this agreement, it appeared that other children of the mortgagor, who were infants, were interested in the estate; the Court refused the relief prayed, but directed a reference to the master to enquire if it would be more for the advantage of the infants to adopt the agreement, or that a sale of the estate should be made under a decree of the Court. McDougall v. Barron, 9 Grant, 450. 596 EQUITY DIGEST. 84 — Appointment of eiigineera to inspect work before ac- ceptance. Two incorporated trading companies agreed, by writing, under their corporate seals, the one to construct certain works for the other, which on completion were to be inspected by engineers on behalf of each of the contracting parties, and upon the engineers approving of the works and reporting them as completed, they were to be accept- ed as soon as completed by the party for whom they were done, who were to be forever debarred from denying or contesting the due and proper execution, completion, and acceptance of such works. The parties to perform the work hnvintr, as they alleged, completed it, notiGed the others thereof, calling upon them to appoint an engineer as stipulated for, ^d,)ich request was not complied with, and subse- quently a portion of the works contracted for (abridge) was destroy, ed. On a bill filed for the purpose of compelling an acceptance of the works, the Court thought that the delay of one of the contract- ing parties, until after such destruction, to name an engineer as had been stipulated for by the agreement, did not preclude the other from obtaining an inspection of the works, but that such inspection and approval must, under the circumstances, be had by a reference to the master. ( Vankoughnet, C, dubitante.) The Great Western Railway Co. v. The Desjardins Canal Co., 9 Grant, 503. 85 — Title — Supposed Equity. A supposed equity in a person who died in 1808, where the pos- session of the property since that time has been enjoyed by another, claiming it as his own, and having a perfect legal title to it, is no ground for refusing to enforce an agreement in which the condition precedent was that the party should " shew, make, and complete a perfect legal title," as even in the event of such equity existing, a Court of Equity would not enforce it after such a lapse of time and under such circumstances. Dew'Ul v. Thomas, 10 Grant, 21. 86 — Death of vendor before conveyance — Costs — Infants. The vendor of real estate had died before the execution of the con- veyance, and his infant heirs filed a bill praying for a specific per- formance of the contract, which the defendants, (the vendees,) admit- ted, and expressed their willingness to carry out but for the obstacle created by the death of the vendor, leaving his heirs at law infants. The Court under the circumstances made a decree for specific per- formance of the agreement, but without costs to either party, the costs of the infants to be defrayed out of the balance of purchase money payable by the defendants. Weihe v, perrie^ 10 Qrant, 98. EQUITY DIGEST. 697 work before ac- •y writing, under )rk8 for the other, aeers on hehalf of leers approving of were to he accept- iy were done, who isting the due and uch works. The 5ged, completed it, ppoint an engineer d with, and Buhse- ridge) was destroy- g an acceptance of ne of the contract- an engineer as had lude the other from such inspection and I hy a reference to 'Ac Great Western int, 503. 808, where the pos- enjoyed by another, ssal title to it, is no which the condition ake, and complete a sh equity existing, a a lapse of time and Grant, 21. Costs — Infants. execution of the con- for a specific per- the vendees,) admit- but for the obstacle leirs at law infants, iree for specific per- to cither party, the balance of purchase erne, 10 Qrant, 98. %'j^GonatrvAition of agreement— Gross relief—Oil well Examination of witnesses — Venue — Costs — Parties. The Court, in adapting itself to tlie exigencies of mankind as they arise from time to time, will deal with new subjects as they present them- selves so as best to effectuate the intentions of the parties, and will not allow rules and principles applicable to the different state of circum- stances to interefere with the exorcise of its jurisdiction whenever, in the opinion of the Court, it c;in be usefully exercised, and where money has been expended upon the faith of an agreement, although otherwise the Court might not have enforced the contract, it will not entertain objections to the forni of the contract when it can execute it, and in doing so will construe the agreement liberally. Where, therefore, the owner of land made a demise of fifty acres for fourteen years, at a nominal rent, for the purpose of boring for oil, and con- temporaneously executed an agreement by which the owner agreed to convey at any time a roadway from any wells the lessee might dig or bore to a certain road, and " also sufiftcient land for working such well or wells," the lessee agreeing to pay " $100 for the first well he might work for oil, and the sum of $50 per acre for the land necessary for working such oil well on said roadway," and " the sum of $50 dollars for any oil well he shall work after the first one, and ths sum of $25 per acre for any land necessary for working said well or wells and the roadway." The lessee having divided a portion of the fifty acres into acre lots, having a frontage from 80 to 100 feet, sold his interest in one such acre to a third party, who went into possession and opened a well, and erected an oil refinery, and constructed the necessary tanks and works for separating the oil from the water w'th which it was mixed when taken from the earth, and declared his option of pur- chasing within the time specified. The owner of the fee having sold and conveyed his interest in the whole fifty acres, his vendee object- ed to convey the acre except upon terms not warranted by the agree- ment, and subsequently refused to convey more than in his opinion was absolutely necessary for working the well in its then state, the produce of which had become greatly diminished, and filed a bill ask- ing to have the agreement construed, and an injunction against the occupant continuing the refinery on the premises. The evidence in the cause shewed that by constructing tanks one above another a great saving of space would be gained, but at an expense greatly exceeding the value of the crude oil, and that the refinery occupied a space equal to about one twenty-fourth of the whole acre. The Court was of opinioQ that under the agreement the purchaser was not entitled to 598 EQUITY DIGEST. space for a refinery on the premises, but it appearing that the sinking of another well within the limits of such acre would tend to injure the well already sunk, and that an acre was not too large a piece for the purpose contemplated, refused the injunction asked for, and the purchaser, by his answer, having asked cross relief by way of specific performance of the agreement, a decree was made accordingly, the deed to be prepared under such decree to provide for payment of the sums stipulated for in the event of the opening of any future wells up. on such acre, bui in such a case the party so claiming specific per- formance to be liable to pay for any other well or wells opened and worked upon the whole fifty acres by other persons, the assignee, in' this respect, standing in no better position than his assignor, the ori- ginal lessee, and the contract not containing any stipulation or agree- ment for the laying off of the fifty acres into sub-divisions, and the master having required a list of all persons who had opened and work- ed wells upon the property, with a view to making them parties in his office, and taking an account of what they owed respectively, in order that they might be bound thereby, and that the defendant might thus acquire a lien on their portions of the land for the sums so to be paid by the defendant. Held, on motion by way of appeal from this direction of the master, that such other purchasers were not proper parties, nor could the defendant thus acquire any lien upon their property, or in the absence of a request, any claim against the par- ties for repayment of the amounts advanced on their accounts, there being no legal liability on his part to make such payment. And qucRre, even if he could thus acquire such lien or claim, whether they would in that ease have been proper parties. Ledyard v. McLean^ 10 Grant, 139. 88 — Conditional rescission of contract. In 1850, S agreed with M for the purchase of a 100 acres of land, and they entered into a written contract. S having paid part of the purchase money, applied to M offering the remainder and requiring his conveyance. ]M then stated that he had no title to convey, offer- ed to pay back the money he had received and to allow S to remain in quiet possession of the land ; this was done, and the written con- tract given by S to M to be rescinded. M then conveyed the land to his son, who, with knowledge of these facti, brought ejectment against S. At the trial the written agreement was put in as evidence against S, and was held to bo an admission by him of the title of th« plaintiff-at-law, and a verdict was accordingly recovered against 8. On a bill filed for the specific performance of the original contract, EQUITY DIGEST. 599 ; that the sinking of tend to injure the arge a piece for the sked for, and the r by way of specific ic accordingly, the for payment of the any future wells up- liming specific per- ir wells opened and ins, the assignee, in' lis assignor, the ori- stipulation or agree- lb-divisions, and the ad opened and work- f them parties in hig respectively, in order he defendant might for the sums so to be y of appenl from this jcrs were not proper any lien upon their aim against the par- their accounts, there uch payment. And claim, whether they Ledyard v. McLean, fa 100 acres of land, ving paid part of the Hinder and requiring title to convey, offer- to allow S to remain and the written con- ■n conveyed the land v«t, brought ejectment vas put in as evidence him of the title of the recovered against S. the original contract, and to stay the action at law, held, that the rescission of the contract wai only conditional, M then undertaking not to disturb the plaintiff in possession ; that the use made of the contract at the trial at law re-established it as against M and his co-defendant, and that plaintiff was entitled to a decree for specific performance, and to a perpetual injunction against the action at law. [Spragge, V, C, dissenting.] Stuart 0. McJSabb, 10 Grant, 234. S9—Co8t8. Where a purchaser filed a hill alleging that his vendor could not make a good title to lands agreed to be sold, but at the hearing waiv- ed a reference as to title, admitting the same to be good, the Court ordered the plaintiff to pay costs. Tisdale v. Shortiss, 10 Grant, 271. 90 — Compensation for deficiency of land. A parcel of land having been surveyed and laid off into building lots, the same was afterwards offered for sale by public auction, when M became the purchaser of two such lots, at an aggregate sum of £70. The plan by which the property was sold contained a memor- andum on the margin that the same was drawn upon a scale of three chains to an inch, which however, was not discovered until after the conveyance had been executed and the purchase money paid ; there- upon the purchaser, M, filed a bill praying the payment of the pro- portionate amount of the purchase money : or a conveyance of a sufiBcient quantity of the adjoining land to make up the deficiency. The Court under the circumstances considered that the plaintiff was not entitled to the relief asked, and dismissed the bill with costs; but senihle, that if the conveyance had not been made, or the purchase money not fully paid, ho would have been entitled to be relieved in this Court. McCall v. Failhbome, 10 Grant, 324. 91 — Representations made by infant binding on him — Estoppel — A cqu lescence. D's father died in 1847, having first made his will, purporting to devise all his real estate to his wife in fee ; this will was not executed in proper form and therefore D became entitled to the land as heir- at-law. Three months before D became of age he agreed with P for Bale to him of the real estate for valuable consideration. A convey- ance to P was prepared by D and executed by his mother, the devisee under his father's will, D being witness to it, P afterwards sold and conveyed his interest, and P brought ejectment against the pur- j chaaor, On a bill filed to restrain this action, it was shewn that D 1) I 600 EQUITY DIGEST. had at various times acquiesced in the sale after he became of age. Held, that D's conduct with reference to .the sale to P was fraud- ulent, and was to be considered as an assertion that his mother was entitled as devisee in fee, although he was then not of age, and that such conduct and his subsequent acquiescence after attaining his majority estopped him from denying the validity of the sale, and he was enjoined from proceeding with the ejectment, and ordered to execute a conveyance to the plaintiff, the vendee of P. Leary v. Rose, 10 Grant, 346. 91 — Reference as to title — Assignee of imvcJmser — Parol contract In May, 1860, a purchase wns made by parol of a lot of land, in addition to three other lots previously bought by the same purchaser from the same vendor, and the purchaser went into possession, and erected thereon a couch house and stable, the other portion of it was used as a lawn to the house which he had erected on the other lots which had been duly conveyed to him. In the year i860, and agaia in 1863, the purchaser repeatedly asked for a deed, offering to give the vendor his promissory notes for the purchase money, but which he refused to accept ; a bill for specific performance was subsequently filed by the vendor ; held, that the purchaser by his conduct had waived his right to compel the vendor to make out a good title, but that he wus at liberty to shew that the vendor had no title, in which case he would be entitled to get rid of his contract, the onus of proof under the circumstances being shifted from the vendor to the pur- chaser. Dennison v. Fuller, lO Grant, 498, 93 — Part ies — Costs. A purchaser of land agreed before conveyance to assign his interest. In a suit subsequently brought by the vendor to enforce .specific per- formance, the assignee was made a party defendant, and a decree was pronounced against hiui, with such costs as were occasioned by mak- ing him a party, in the event of his co-defendant (the purchaser) fail- ing to pay the general costs of the suit, which were awarded against him. lb. 94 — Water course defined — Costs. The owner of land agreed to convey to a railway company a por* tion thereof, the consideration for which was paid, on condition that the company would mal^e a culvert through such embankment, on which to erect an embankment. The building of the railway passed EQUITY DIGEST. 601 he became of age, e to P was fraud- hat his mother was lot of age, and that after attaining his of the sale, and he nt, and ordered to L'O of P. Leary c. mrchaser — Parol of a lot of land, in the same purchaser into possession, and icr pc'tion of it was cd on the other lots year 1860, and again jed, offering to give B money, but which nee was subsequently jy his conduct had out a good title, bat »d no title^ in which ict, the onus of proof vendor to the pur- to assign his interest. enforce .specific per- ant, and a decree was i occasioned by inak- (the purchaser) fall- ere awarded against way company apor- id, on condition that uch embankment, on of the railway puased from such company into the hands of another, who built the embank- ment, but without making a culvert therein, they having had no know- ledge of the stipulation in respect thereof, and the owner having omit- ted to give them any notice in regard to it during the progress of the work. Upon a bill filed by him for the specific performance of the covenant to construct such culvert, held, that under such circum- stances it would be a hardship upon the company to decree specific performance, there having been no wilful default on their part, and the costs of now constructing the culvert would be very great, and that the parties ought now to be placed in the same position as if such agreement had not been entered into, in order that the company might proceed under the railway clauses consolidation act, the Court retain- ing the bill until such proceedings were taken, giving to each party liberty to apply, but, under the circumstances, refusing either party any costs of the litigation. Hill v. The Buffalo and Lake Huron Railway Company, 1 Grant. 506. 95 — Public road. The owner of real estate had permitted for many years a public road to be used a;;ros3 his land, which he subsequently agreed to sell. No by-law had been passed by the municipal council of the locality for closing up this road, although a resolution of the council had been passed for the purpose. Held, on appeal from the master's report, that, under the circumstances, he should have reported that a good title was not shewn. Kronsbien v. Gage, 10 Grant, 572. 96 — Faiimess of contract. A contract to be specifically performed must be equal, fair and cer- tain in its terms and founded on good consideration. Where, there- fore, a woman, under the impression that she held a life interest in two acres of land, when in reality she was entitled to the fee thereof and also an annual allowance of £10, partly in cash and partly in produce charged upon other lands, agreed to sell her interest in such two acres to the owner of the other lands in consideratiation of his paying her the i 10 all in cash. The Court, under the circumstances, refused to enforce the specific performance of the agreement. Early v. Mc- Gill, 11 Grant, 75. 97 — Demurrer — Prayer for farther relief — Infanta. The widow and infant heirs of C were entitled to certain premises subject to a mortgage to E. By agreement between the widow, E and W, the premises were conveyed to W upon a verbal understand- ing that ho should retain a part of the premises equal in value to the 4d 602 EQUITY DIGEST. rt? sum due on E's mortgage, ^vhich he was to assume, and that he should convey the remainder of the land to the widow for the benefit of her- self and children. The conveyance to W having been made by E, the widow and infant heirs filed their bill seeking a specific performance of the agreement to convey the portion agreed on to them. On de- murrer for want of equity, held, following Graham v. Chalmers, that the specific relief sought could not be decreed, but that under the general prayer, and the case stated the plaintifis were entitled to some relief, and the demurrer was therefore overruled. Clark v. Ely, H Grant, 98. 98 — Relief ^vithout costs. A purchaser of land at public auction, from the Trust and Loan Company, filed a bill for specific performance, injunction and com- pensation, alleging misconduct of the company's agents at the sale and otherwise, and consequent damage to the plaintiflF, which allega- tions were partially disproved by the evidence ; however as the delay which occurred in completing the title to the plaintiflP was owing in a great measure to the defendants, the Court, under the circumstances, made a decree for specific performance and injunction, but without costs 01 compensation. Mossop v. The Trust and Loan Cotnpany, 11 Grant, 204. 99 — Dilapidations. A vendor who contracts for the sale of property of which he has not taken possession, is accountable to the purchaser for dilapidations by the parties in possession before the vendor takes the possession from them. Fiskhiv. Wride, 11 Grant, 245. A vendor in possession is, generally speaking, responsible for di- lapidations that take place' before he shews a good title, where the dilapidations are such as a prudent owner or his tenants might have prevented. lb. Where buildings are torn down after a contract for sale, and before the purchaser takes or was bound to take possession, the vendor is prima facie accountable for the loss. lb. 100— Waiver of title. Where a contract for sale of building lots provided for the imme- diate possession, aiid for the payment of the purchase money in eight annual instalments, Held, that the erection of two workshops on the lots by the vendees was no waiver of their right to examine the title ; nor was the division of the property between them when thej v,.:\ vf!pP| !, and that he should r the benefit of her- )een made by E, the specific performance n to them. On de- m V. Chalmers, that but that under the were entitled to some . Clark V. Ehy, U the Trust and Loan injunction and com- r's agents at the sale laintifiF, which allega- however as the delay lintiff was owing in a ier the circumstances, lunction, but without : and Loan Company, lerty of which he has aser for dilapidations takes the possession 3g, responsible for di- good title, where the lis tenants might have act for sale, and before gsession, the vendor is )rovided for the imme- irchase money in eight of two workshops on : right to examine the tween them when thej EQUITY DIGEST. 603 dissolved their partnership, nor the acceptance of a conveyance at another time of another lot said to depend on the same title any waiver. Darh/ v. Greenlees, 11 Grant, 351. 101 — Ordering purchase money into Court. In a suit against purchasers for specific perfonuiince, the Court refused, under the circumst jes of the case, to order the purchase money into Court, pending a reference as to title, though the defen" dants were in possession of the property, lb. 102— Cos^s. M executed a mortgage in Y's favor for £50 over lot no. U, he then also holding a lease^ renewable in perpetuity, of lot A, at a rental of £4 per annum. The rent being in arrear, judgment was obtained and execution issued by tho lessor against M therefor ; Y then agreed with M to pay this execution, M to assign to him the lease of the lot A, and further, it was agreed that if the lessors *' wil give to the party of the first part (Y) a deed in fee simple, or a lease perpetually renewable at the present rent, he, the party of the first part, will discharge and release a mortgage," &c., being that above mentioned. Y afterwards obtained a conveyance from the lessors of lot A, but it did not appear that such was made for the sum contem" plated at the time of the agreement between Y and M. Y after- wards pressed for payment of t)ie mortgaged debt, when M made ex- cuses for delay, and did not rely on the agreement as a bar to Y's claim. Y having commenced an action of ejectment "on his mort- gage, M's bill to stay it, and to have tho agreement and subseouent purchase by Y construed into a satisfaction of the mortgage debt, was dismissed with costs. McKenzie v. Yielding, 11 Grant, 406« \0Z— Costs. Where an answer improperly impugned the motives of the solicitor who filed the bill, the Court, although it dismissed the bill with costs, directed the costs of the answer to be disallowed to the defendant* Ih. 104 — Co m^ie nsatlon — Defic le ncy. The plaintiff sold to the defendant a lot of land, the contract did not mention tho number of acres it contained, the conveyance stated the quantity to be 200 acres, more or less. The covenants did not warrant the quantity, part of the purchase money remained as a lien on the land ; and many years afterwards, but before tho purchase money was fully paid, the vondeo discovered that there was a defi- 604 EQUITY DIGEST. i w' oienoy of 24 acres in the supposed contents of the lot. Held, that the veudee was not entitled to compensation from the plaintiff for de- ficiency as against the unpaid purchase money. FoIHs v. Porter, 1| Grant, 442. 105 — Infant. Where, in a suit by the personal representatives of a vendor for the specific performance of the contract of sale, an infant heir wag joined as as a co-plaintiff, the Court refused to make a decree, al- though the bill had been taken pro confesso, against the defendant, the purchaser, and ordered the case to stand over, with a view to the plaintiffs' amending their bill by making the infant a party defendant, in order that the contract might be established against him. Han- ilion V. Walker, 12 Grant, ]72. 106 — Parol contract partly performed. The evidence of a parol contract for the purchase of land consid. ered, analyzed and acted on. Grant v, Brown, 12 Grant, 52. On an appeal from a decree of the Court below for specific per- formance of a parol contniot, it appeared that the defendant denied that there was any contract for sale, and alleged that the plaintiff was in possession as tenant merely, and not vendee, that the contract sworn to by the plaintiff's witnesses wat not the contract alleged by the bill, and the evidence of there having been any contract was con- tradictory, and the learned judge who pronounced the decree had in- timated considerable doubt as to the evidence, the decree was re- versed, and the bill in the Court below ordered to be dismissed, but under the circumstances without costs. Grant t'. Brown, 13 Grant, 256. 107 — Delivery of possession. The XXXII of the orders of 1853 authorizing the Court to grant an order for the delivery of the possession docs not apply where the bill in a suit for specific performance is dismissed at the hearing. Mavety v. Montgomery, 1 Cham. Rep., 21 , 109 — Rescission of after abortive sale. Where in a suit by a vendor for specific performance, a decree for sale has been made, with a proviso that if the sale prove abortivo the oontraot is to be rescinded, and the sale proves abortive, and an application is made to rescind the contract, it must be shown that the purchase money has not been paid. Grange v. Conroy, 1 Cham. Rep,, 198. EQUITY DIGEST. 605 be lot. Held, that the plaintiff for de- Fol/is 'J. Porter, 1^ ives of a vendor for an infant heir wag make a decree, al< inst the defendant, r, with a view to the it a party defendant, isainst him. Ham- lase of land consid- 12 Grant, 52. low for specific per- tie defendant denied ed that the plaintiff lee, that the contract contract alleged bj iny contract was con- d the decree had in- tho decree was re- to be dismissed, but V. Brown, 13 Grant, )rizing the Court to does not apply where dissed at the hearing. brmance, a decree for e sale prove abortivo )ve8 abortive, and an must be shewn that ■e V, Conroy, I Chun. 110— Variation of original contract— Parol evidence. A made a contract with B for the purchase of a lot of land and Tboth parties signed the contract. Some delay occurred in delivering an abstract, and A's solicitors wrote to B's solicitors declining to com- plete the contract unless the abstract was delivered by a certain day, subsequently negotiations were entered into by the parties for a var- iation of the terms of payment, and two propositions in writing, but tnsigned, were made by A for B's acceptance. B accepted one of them, and so informed A or his solicitor, but after a little time, on the advice of his (A's) solicitor, declined to carry out the contract as varied, relying on the former letters. Upon a bill filed by B it was held, 1st, that the defendant could not rely upon the letters fixing a time for the delivery of the abstract, as by the subsequent dealing with the plaintiff he had waived his right to withdraw from the con- tract ; 2nd, that parol evidence could be admitted to connect the un- signed memorandum with the signed contract ; 3rd, that there was sufficient evidence to shew that the proposition of the defendant had been accepted by the plaintiff. Martin v. Reid, 8 Q. C. L. J., 186. lll-^ Ultra vires. The rector of Woodstock filed a bill against the Great Western Railway Company for the specific performance of an alleged contract for a free pass for himself and his successors, as the consideration for cer- tain rectory land conveyed by the plaintiff to the company for railway purposes. The Court of Chancery decreed for the plaintiff. The Court of Appeal not being satisfied with the evidence of the alleged contract, and also deeming the contract to be open to various object- ions, reversed the decree, and ordered the bill to be dismissed with costs. (Spragge and Mowat, V. C. C; dissenting.^ Betlridge v. The Great Western Railway, 3 E. & A.. 58. 112 — Appointment of engineers to inspect — Reference to master to enquire. Two incorporated trading companies agreed by writing under their corporate seals, that certain works which were to be constructed by one for the other, should on completion be inspected by engineers to be chosen by the companies respectively, and if reported as completed the works were to bo accepted by the party for whom they were done, who from thenceforth should be debarred from denying or contesting the duo and proper execution and acceptance of the works. After the works were alleged to have been completed, the parties who performed the same, notified the others thereof, calling upon them to 606 EQUITY DIGEST. appoint an engineer, which was not done, and subsequently a portion of the woik«i haring been destroyed, a bill was filed to compel the parties so neglecting to accept the works. The Court below (Van- koughnet, C, dubitante,) considering that the delay which had oc- curred in naming an engineer, according to the terms of the agree- ment, ought not to preclude the parties from obtaining an inspection of-the works, made a decree in favor of the plaintiffs, but under the circumstances directed a reference to the master for the purpose of enquiring and reporting as to the due performance of the works, On appeal this decree was reversed, and the bill in the Court below or- dered to be dismissed with costs. (Estcn, V. C, dissenting.) The Desjarditis Canal Company v. The Great Western Railway Companii 2 E. & A.. 330. 113 — Agreement to devise — Part performance. The owner of real estate, who was old and enfeebled, had for the purpose of inducing his son to relinquish his own farm and come and reside with, and take care of the father during his life, promised the son to give him the farm upon which he (the father) was residing, and the son subsequently removed with his family to reside with the father. After remaining in the house for a few days the son's wife and family, during his temporary absence, removed from the house of the father, in consequence of disagreement with hhii, and before the son returned the father died. It was alleged that the fath- er had made a will devising the property, but after his death no trace of any will could be discovered, nor was there any satisfactory account given of it. A witness to the alleged will gave evidence of its exe- cution by the testator, but it was not shewn that there had been a second witness to it, nor were its provisions shewn, under these cir- cumstances, held, reversing the decree of the Court below, that there was not such an act of part performance as would take the case out of the statute of frauds. Blade v. Black, E. & A. 419. 114 — Oil lands. The owner of vacant land leased part of it for nine months at a nominal rent. The lessees covenanted to sink on the land, during the term, a t«:st well to the depth of 1,000 feet, for the purpose of obtaining oil, and it was provided that at any time during the term, the lessees should have the option of purchasing and the lessor should convey to them, on their request, any five acres of the demised land at $12 a lot, and that at the end of the term the lessees should have the option of purchasing the residue at the same price. The lessee! EQUITY DIGEST. 607 equeatly a portion led to compel the lourt below (Van- ay which had oc- jrms of the agree- in ing an inspection iffs, but under the for the purpose of c of the works, On he Court below or- , dissenting.) The a Railway Company ince. I enfeebled, had for 1 his own farm and thcr during his life, h he (the father) was 1 his family to reside r a few days the son's , removed from the ment with him, and alleged that the fath- tcr his death no trace y satisfactory account ; evidence of its exe- hat there had been a 3wn, under these cir- )urt below, that there uld take the case out A. 419. for nine months at a on the land, during t, for the purpose of imc during the term, and the lessor should 9 of the demised land 10 lessees should have ,0 price. The lessees iid set about making the well, but the machinery broke after they reached a depth of 530 feet, and they were in consequence unable|to complete the well during the term, though tliey expended as much as but for the accident, the well would have coro to complete, and the work bad enabled the lessor to sell a number of his other village lots at advanced prices ; there was no charge of any want of good faith or diligence or skill on the part of the lessees, they gave notice before the end of the term that they would take the five acres. Held, on appeal, affirming the judgment of the Court below, that the lessees were entitled to a specific performance of the covenant as to the five acres, notwithstanding the non-completion of the well to the stipulat- ed depth, without prejudice to any action by the lessor on the cove- nant. Hunt V. Spencer, 13 Grant, 225. The owner of an oil well lot on which was also situate a black- Bmith's shop, which was known not to be the property of the owner of the land, agreed to lease the oil well and lot for a term of years, without any express reservation of the blacksmith's shop, the intend- ed lessee insisted on obtaining a lease without any reservation of such shop, and filed a bill for that purpose. At the hearing the bill was dismissed with costs. Morris v. Kemp, 13 Grant, 487. 115-^Ordnance lands. The plaintiff' was lessee of some ordnance lands and assigned his interest therein to the defendant in 1847, the latter agreeing in con- sideration of such assignment to pay off an execution against the plaintiff then in the sheriff's hands, and if the ordnance department would give the d ^fendant a deed in fee of the lot, or a lease renewable in perpetuity at the then rent, to release a mortgage be had against the plaintiff on other land. The department refused to do either, but eleven years afterwards sold the land to the defendant at a price greatly exceeding the sum of which the rent would be the interest at six per cent. The bill was for the discharge of the mortgage, and the decree of the Court below, dismissing the bill, was affirmed on appeal. McKenzie v. Yielding, 13 Grant, 259. 116 — Lessor and lessee. A contract was entered into for a lease, and the intended lessee, on the faith thereof entered, into possession, paid rent and made im- provements. Both parties died without executing any writing stat- ing the bargain, and before any dispute as to the same arose. On a bill by the representatives of the intended lessee for specific perform^ ance, the parol evidence was not alone sufficient to establish dearly 608 EQUITY DIGEST. m IV J the terms of the transaction, but there being found among the papers of the intending lessor (a County Court judge) an unezeouted lease in bis own hand writing, the Court was satisfied that this paper con- tained the terms of the lease bargained for, and a specific perform- ance haying been decreed in Chancery, the decree was afiirmed on appeal. McFarlane v. Dickson, 13 Grant, 263. 117 — Contract to re-convey. Lands were conveyed to W upon the express understanding and promise that he would rO'Convey a certain portion thereof. Heli, that Wwas bound to re-convey. Clarke r. Ehy, 13 Grant, 371. 118 — Free Church of Scotland. The owner of land agreed to sell a site for a burial ground and church in connection with the Free Church of Scotland, if a congre- gation thereof could be gotten together. A church was built thereon and a congregation in connection with the Free Church assembled, and performed divine service therein. Several years afterwards the great body of the congregation abandoned their connection with the Free Church, and they in conjunction with the vendor assumed to hold possession of the church to the exclusion of such of the members as continued U adhere to the Free Church. On an information filed in the name of the Attorney-General, held, that, although at first con- ditional, the contract, by reason of a congregation having assembled in the church, had become absolute, and that so long as even one member remained to claim the site and church on behalf of the Free Church the right of that body continued, notwithstanding the change of opinion in the body of the members \ and, under the cir- cumstances, decreed an injunction restraining any further interfer- ence with such right, and also a specific performance of the contract, with costs. The Attorney General v. Chrislir, 13 Grant, 495. See Contract— Costs — Crown — Dilapidations — Dowbb Infants— Judgment Creditor — Religious Bodies— Title- Trustee— Vendor's Lien — Vendor and Purchaser. STAMPS. See Deeds. STATUTE 13 KLIZ., Ch. 5. Six InFANTI— VOLUNTAAT CONVSYANOE. EQUITY DIGEST. 609 I among the papers 1 unexecuted lease hat this paper con- a specific perform- ;e was affirmed on understanding and ion thereof. Held, , 13 Grant, 371. burial ground and Scotland, if a congre- rch was built thereon J Church assembled, fears afterwards the connection with the ,e vendor assumed to f such of the members 1 an information filed although at first con- jn having assembled so long as even one rch on behalf of the , notwithstanding the ; and, under the cir- any further interfer- nance of the contract, 13 Grant. 495. PIDATI0N8 DOWBB 8 Bodies— TiTLE- 'URCHASER. 5. STATUTE 12 VIOT., Ch. 72. Sec Infants. STATUTE 12 VICT., Ch. 91. See Belioious Bodies. STATUTE IG VICT., Ch. 190. See Arbitration. STATUTE 16 VICT., Ch. 219 & 20 Ch. 80. See Esplanade Acts. STATUTE 20 VICT., Ch. 56. See Issues at Law— Injonction. STATUTE 27 ELIZ. See Judgment Creditor. STATUTE OF FRAUDS. See Frauds— Mortqaqe. STATUTE OF LIMITATIONS. The statute does not bar an executor from retaining a debt which would otherwise be barred by the statute. Crooks v. Crooks, 4 Grant, 615. QiicBre. When the personal estate of a testator is exhausted has the executor a right to retain such debt out of the proceeds of real estate, lb. See Limitations —Administrator— Trust— Will, STAYING PROCEEDINGS. See Dismissal of Bill, STEAMBOATS. See Injunction. e. STOCKHOLDERS. See Inoorpobatbd Compant. 4e 610 EQUITY DIGEST. STOPPAGE IN TRANSITU. See Injunction. STOP ORDERS. This Court has no jurisdiction to grant a '' Stop Order " at the instance of a judgment creditor of a party entitled to funds in Court Lee V. Bell, 2 Cham. Rep., 114. See Judgment Creditor. STYLE OF CAUSE, Style of cause d/ter bill distulssed against one defendant. After a bill hus been dismissed against one defendant the style of cause, as it originally was, should be continued. It is not necessary to omit the name of the defendant against whom the bill has beea dismissed, and the retention of the name is not irregular. Sed qttare^ would it be irregular if the name was omitted ? Upper Canada Mining Company v. The Allorncy General, 2 Cham. Rep., 185. SUBP(ENA. Service of out of jurUdictioii, 1. | To examine witness in Lower Canada, 2. - Note. Subpoenas to appear and answer as well as subpoenas to hear judgment, are now abolished by the general orders, but the cases that relate to them are given as affording analogies in oases of other services. 1 — Service of subpaiua out of the jurisdiction. Where the plaintiff in a bill of discovery was out of the juris- diction of the Court, the defendant having answered had obtained the usual order for the payment of his costs, but with which order the plaintiff neglected to comply, in consequence of which the defend- ant was obliged to take out a subpoena, and apply to. the Court for leave to serve the plaintiff therewith out of the jurisdiction ; the Court gave the defendant leave to serve the defendant out of the jurisdiction, and directed the plaintiff to pay the costs of the motion, Peel V. Kingsmill, 2 Grant, 272. Where, between the time of obtaining an order permitting service out of jurisdiction -xvi the service of the subpoena, the name of a town (^before the mayor of which the affidavit of service was di- rected to be made,) had been changed, a certificate of the town clerk I sealed with the corporate seal of the town, under ita new name, wu EQUITY DIGEST. 611 top Order " at the to funds in Court one defendant. sndant the style of It is not necessary I the bill has beeu egular. Sedquare, d ? Upper Canada am. Rep.t 185. less in Lower Canada, 2. well as subpoenas to orders, but the cases ;ies in cases of other Hon. (vas out of the juris- swered had obtained lut with which order e of which the defend- ply to. the Court for the jurisdiction; the defendant out of the le costs of the motion, an order permitting le subpoena, the name lavit of service was di- ioate of the town clerk diet its new name, wu received as the proof of the fact of such change having taken place. Rolfv. Cahoun, 2 Grant, 623. Where a plaintiff desires to obtain the leave of the Court to effect service on a defendant by serving the subpoena on a person resident in the Province, as agent of the defendant, it must be shewn that the person to be served is such agent, by some evidence other than the statements of such agent. Legge v. Winstanky, 3 Qrant, 106. 2 — Subpcena to examine ivitness residing in Lower Can- ada. The Court has authority to grant an order for a subpoena to issue to Lower Canada, though the evidence of the proposed witness is not intended to be used at the hearing of the cause. McKerchie v. Montgomery, 1 Cham. Rep., 225. Subpcena to examine a plaintiff residing in Loiver Can- ada. Where a defendant asks for an order for a subpoena to examine a plaintiff, it is unnecessary for him to shew that there is no cause of action for the same matter pending in Lower Canada. Daly v. Rob-^ imon, 1 Cham. Rep., 271. SUBJECT. Reinedy of, against the Ci'oiun. See Jurisdiction. SUBSEQUENT INCUMBRANCES. See Foreclosure. SUBSTANTIAL IMPROVEMENTS. See Redemption. SUIT PENDING. For same cause of action. A, B, and G were appointed executors, B, as acting executor, re- ceived a large sum belonging to his testator's estate, which he failed to account for, a suit was commenced to administer the estate ; this suit was compromised by the plaintiff therein, who was a beneficiary under the testator's will, and the co-executors who took security for the lum found due from B, who agreed to cease all further inter- 612 EQUITY DIGEST. ference with the estate, which wag thenceforth to be managed by A; B continued to meddle with the estate, whereupon A and G filed a bill praying for an account, and for an injunction to restrain B from all further interference with the estate. Held, on demurrer, that the proceedings in former suit and its pendency were no bar to the relief Aikens v. Blain, 11 Grant, 212. sought. SUPPLEMENTAL ANSWER. Corporation, 1. Plea of want of Jurisdiction, 2. Matter omitted, 3, 7. Circumstances occurring after flrstanswcr,!. Error, 6. Delay, 5. Motion for must be made in Court, 6. 1 — Corporation. A joint answer having been put in by a corporation under the cor- porate seal, and by their officer under oath, the defendant afterwards applied for leave to file a supplemental answer, alleging a material mistake in the original answer, and the Court granted leave to the corporation to file- the supplemental answer on terms, but refused such leave to the officer, his explanation of tht alleged mistake being unsatisfactory. Walsh v. DeBiaquiere, 12 Grant, 107. 2 — Plea of want of jurisdiction. A bill having been filed against trustees and executors, residing at Montreal, in the Province of Lower Canada, for an account of the estate of the testator, who at the time of his death and for some time previously had been domiciled there. The trustees, &c., although not obliged to do so, had appeared to and answered the bill, submit- ting to account, &c., in such manner as the Court may direct. After- wards, and before any evidence hbd been taken, they discovered that there was a very important difiference as to the responsibility incur- red by them according to the laws of Upper Canada, and what they would have incurred according to the laws of Lower Canada, but which at the time of filing their answer they were not aware did exist. They then moved the Court, upon affidavit setting forth these facts, to be allowed to file a supplemental answer, for the purpose of stating the fact of foreign domicile, and the laws of Lower Canada, accord- ing to which alone they had always acted. Held, that, under the cir- onmBtanoes, they ought to be allowed to file a supplemental answer, for the purpose of placing these facts upon the pleadings ; and held also, that although the effect of such permission might be to enable the parties to set up a defence of want of jurisdiction in the courts of this Province to interfere in the subject matter of this suit, still that s managed by A; 1 A and G filed a o restrain B from lemurrer, that the 10 bar to the relief be made in Court, 6. tion under the cor- fendant aftervrards alleging a material anted leave to the termS; but refused eged mistake being t, 107. ecutors, residing at ' an account of the 1 and for some time itees, &c., although 3d the bill, submit- nay direct. After- hey discovered that ■esponsibility incur- ada, and what they Lower Canada, but not aware did exist, ig forth these facts, le purpose of stating vrer Canada, accord- that, under the cir- ilemental answer, for lings ; and held also, ht be to enable the ion in the courts of )f this suit, Btill that EQUITY DIGEST. 618 was not any objection against it, but rather a reason why they should be permitted to file the supplemental answer. Torrence v. Crooks, lOrant, E. & A. R., 230. 3 — Matter omitted. A defendant filed his answer in October, 1857, and in August, 1858, plaintiff filed a replication. An application by the defendant in'Fobruary, 1850, to be allowed to file a supplemental answer, for the purpose of setting up certain grounds of defence omitted from, but not in anywise contradicting the original answer, was granted on payment of costs, and the defendant's undertaking to go to a hearing at the next term. Cherry v. Morton, I Cham. Rep., 25. ^Circmnstances occwrrinr; after first answer. The trustees of the University of Kingston had passed a reso- lution removing W from his office of professor, who had thereupon filed his bill praying the Court to declare him still an incumbent of the ofice and entitled to the emoluments thereof, on the ground, among others, that the meeting of trustees had been irregularly called, and praying an injunction against removing Iiim from his office, which was granted. After the filing of the bill and answer, and pending the motion for the injunction, a new meeting of the trustees had been called, all irregularities having been carefully provided against which had met after the granting of the injunction, and passed reso- lutions confirming the prior ones, and again removing the plaintiff from his office. Under these circumstances a motion for leave to file a supplemental answer, setting up the second meeting and the reso- lutions passed thereat, was granted upon terms. Weir v. Maihe- son, 1 Cham. Rep,, 238. A supplemental answer was allowed to be filed upon terms, where new matter had been discovered since former answer filed and the delay in making the application was accounted for. McKinnon v. McDonald, 1 Cooper's C. & P. R., 23 ; S. C, 2 Cham. Rep., 23. h— Error — Delay. A supplemental answer will be allowed to be filed to correct an er- ror in the original answer, or state some facts discovered since answer filed, although some delay has taken place since the discovery of the new matter, and all the more readily if the plaintiff has himself not been urgent in pressing the cause. Worts v. HoWf 2 Cham. Rep., 111. 614 EQUITY DIGEST. 6 — Motion for muat he made in Court. Edgar for defendant, moved on notice for leave to file supplemental answer, and referred to Churton v. Frcwon, 1 L. R. Flq. cases, 238, where similar application in Chambers was refused on the ground that motion should have been made in Court. The question first to be de- cided was, whether the old practice of applying in Chambers in theae oases (Cherry v. Morton, U. C. Cham. Reps., 25) has not been over- ruled by English decision. The secretary, after consulting with the Judges, held that the motion must be brought on in Court, under the authority of Chnrton V. Frewen. Attorney-General v. Casey, 2 Ch m. Rep, 8 — Matter omitted. Where on a bill for the cancellation of a shenit 's deed as a cloud on the legal title of the plaintiff, the defendant omitted to set up by hig answer one of his grounds of defence, the Court, at the hearing, though against the defendant on the grounds taken by the answer, declined to make a decree in the plaintiff's favor until the other defence was tried, and on payment of costs allowed' a supplemental answer to be filed setting up the omitted defence. McKinnon v. McDonald, 13 Grant, 152. SUPPLEMENTAL BILL. See Amendments. SUPPRESSION OF MATERIAL FACTS. See Injunction. SURETY. See Principal and Agent — Principal and Surety. SURPRISE. See Chancert Sale. SURVIVING PARTNER. Right of. See Partnership. SURROGATE COURT. Removal from, 1, 2, 3. Corti,2. Panoul raprtMnUtlT*, 2. Contentious causea, t. Delay, 2. Assignment of bond, 4. r- EQUITY DIGEST. 615 to file supplemental R. F.q. cases, 238, on the ground that jstion first to be de- Chambers in theae I has not been over- gcs held that the nthority of Chnrton Rep. 'b deed as a cloud on ed to set up by his the hearing, though he answer, declined 1 other defence was mental answer to be on V. McDonald, 13 , FACTS. \— Removal from. Where a will related to both real and personal estate, and the per- lonal property was worth £2,000 at least, and it was sworn that the questions to bo tried and determined were of such importance and difficulty that they could be more effectually tried and disposed of in this Court than in the SuiTogate Court, which statement was uncontra- dicted, the Court ordered the removal of the matter into this Court. Re Eccles, 1 Cham. Rep., 376. 'l— Removal ofcav^e — Personal repreaentativea — Costs. In oases which by tho Surrogate Courts Act are proper to bo re- moved to the Court of Chancery, the <]ourt will not restrict the par- ties to the Surrogate Court costs. A personal representative can only be appointed on petition. In Re Lee v, Walerhouse, b U. C. L. J., 256. ^Contentious causes-- Removal — Delay — Administration ad litem. The legislature had intended that only those cases in which dis- puted questions of law or fact arise should be removed to the Court of Chancery, and not contentious questions as to whom administration should be granted to. The 36th section of the Surrogate Act provides for the appointment of an administrator pendente lite, when a cause ia reserved by the judge lor argument in term. In Re Beckwith, 5 U. C. L. J., 256. i— Assignment of bond. An assignment of a bond taken in the Court of Probate will not be ordered on an ex parte motion. Re Hilts, 1 Cooper's C. & P. R., 10. iND SUEETY. See Executor. TACKING. • See Mortqaoe. (Tacking is abolished by our Provincial Statute, 185 registration.) TAXATION. :ausea, t. i bond, 4. Adding item, 1. At Instance of client, 3. Costs of, 2, 8, 8, County Court suit, 8 (2). BxNuton,e. Juriidiction,S(2). Order for, on pmcipe, 4 Review of, 6. Sattlement, 7. RtUiner.O. 616 ISQtJITY DIGEST. 1 — Adding an item. Daring t&xation of c3sts it was discovered by the solicitor that an item, comprisiDg a counsel fee paid, was omitted. An application for leave to add it was granted, on payment of costs, such costs being al< lowed to be set off against the taxed costs ; but the adding of such coast was not to affect the question of the costs of taxation. See Re Whalley, 20 Beaven 576. In Re Crawford <^ Cromhie, 1 Cooper's C. & P. R., 10, 2 Cham. Rep., 13. 2 — Costs of — }^here party does not appear. A solicitor applied for and obtained an order under Con. Stat, U. C, oh. 35, sec. 29, for the taxation of his bill of costs against his client. On the taxation being proceeded with, before the master, the client did not attend, nor did any one on his behalf. The mas- ter having refused to tax to the solicitor, the costs of the taxation, an application was now made to have these allowed. Held, that the Court had no discretion as to allowing costs of taxation, when the party chargable with the bill, neither obtains the order for taxation, nor attends the taxation under an order obtained by the solicitor. Section 33 does not confer upon the Court the power of awarding costs when the statute has directed that none shall be allowed, but only gives the Court the power of making special orders as to the costs, where such costs are payable. In Re Kerr v. Solicitor, 1 Coopers C. & P, R., 49. 2 Cham. Rep., 47. 3 — At the instance of client. Where a solicitor had been employed to conduct a suit and other- wise render professional services for the client, and without furnish- ing a bill of costs a demand was made for £45 which was compromis- ed by the client giving his promissory note for £40, which note was renewed and ultimately paid, a motion by the client after a lapse of eleven months for an order directing the solicitor to furnish a bill of costs, and to refer the same for taxation, was refused with costs. In re Fairbanks, a solicitor, 1 Cham. Rep., 222. At instance of client — Costs of a County Court suit — Jur- isdiction. On an application by a client for the taxation of his solicitor and attorney's costs in a suit in this Court, and in another suit in a County Court, the affidavit of Cue client admitted a retainer in the County Court suit, but denied one in the suit in this Court, the solicitor mak* ing no claim for costs in the suit in this Court. Held, that this Conrt EQUITY DIGEST. 617 Court suit — Jur- had no jurisdiction to order a taxation of costs between the client and solicitor. Re Malcolm C. Cameron, a solicitor, 1 Cham. Rep., 356. ^-— Order on praecipe. The common order to tax a solicitor's bill of costs may be obtained by a client on prascipe, it is not necessary to apply to a judge in cham- bers for it. In re Daniels, a solicitor, 1 Cham, Rep., 224. Where a solicitor's bill of costs has been delivered more than a month and no action brought, the client, if he desires a taxation, can- not obtain an order for it on praecipe, but must apply in Chambers on petition ; but if he applies within the month, he can obtain the order on praecipe. Re Boultbee, 1 Cooper's C. & P. R., 65; 2 Cham. Rep., 58. 5 — Review of — Costa in cause. The plaintiff had obtained a decree with costs against the defend- ant. Afterwards by consent a supplemental order varying the decree was made which was silent as to costs. Held, that the costs of such order and proceedings thereunder, were not costs in the cause, and could not be taxed against the defendant. Attorney-General v. Tay- lor, 1 Cham. Rep., 362. ^—Executors. (1) An order having been made dismissing an appeal with costs to all parties the master refused to tax any but one set of costs of one of the executors, the executors having severed in their defence, and this executor was the partner of the solicitor who acted for him. This ruling was appealed against, and in support of it, it was con- tended that the master was bound to take notice of the fact of the relationship of the solicitor and executor without any special direction. On a petition Vice Chancellor Spragge made an order referring it back to the master to tax the costs of each executor. Stinson v. Martin^ 2 Cham. Rep., 86. Executors — Infants. (2) Where executors have appealed, infants in ths same interest need not appear and will not be allowed costs if they do. In such a case where they had appeared and contested, the guardian was allowed an attending fee without brief. McLaren v. Coombs, 2 Cham. ., 124. 1— Settlement — Delay. In the absence of gross overcharge or pressure, the Court will not open up and tax a solicitor's bill which has been rendered several years 4f 618 EQUITY DIGEST. and treated as paid, the solicitor having abandoned any excess over certain sums received by him. R^ Thompson, 2 Cham. Bep., 100. 8 — Costs of. Where a solicitor offered to make a deduction from his bill, the Court held that the master should not charge the solicitor with the costs of taxation, unless the bill had been reduced one sixth by tax- ation independently of the voluntary deduction. Re Freeman Crai- gie V. ProuUfoot, solicitors, 1 Cham. Rep., 102. The text appears scarcely to bear out this head note. See also Taylor's orders, of costs, 176; by master without express reference, 206; re taxation, 216; petitions for, 286; not in any suit not taxable, 290. 9 — Retainer. When a solicitor has neglected to take a written retainer from his client, and there is afterwards a dispute between them as to the re- tainer, and the evidence is conflicting ; this Court will give weight to the denial of the client as against the solicitor. In Re Ecclts v. Carroll, solicitors, ^c, 1 Cham. Rep., 263, See Examination of Client. TARIFF OF CHARGES. The act incorporating a railroad company, authorized the oompan} to levy such tolls only as should be fixed by by-law of the company, to be sanctioned by the governor, and that the same tolls should be charged at all times equally to all persons. The company, from the circumstances of a firm covenanting to furnish certain quantities of lumber, to be transported over their line of railway, contracted to carry the same at a lower rate than that fixed by their tariff for the public generally, but no by-law to this effect had been passed by the company. The Court, upon a bill filed, declared such contract illegal, and enjoined the company from continuing to carry at any other rates than were charged for the like services to the public generally. Al- torney-General v. The Ontario, Simcoe, and Huron Railroad Co., 6 Grant, 446. TAXES. 1 — Sheriff's sale for. Where a person in order to purchase lands to be sold at sberift lale for taxes, consented to representations wbioh he knew to be ui- 3 if i ' 624 EQUITY DIGEST. of dower, but no power was given to the attorney to execute the deedt for either of the granting parties by express words, or to receive the money. The agent induced the defendant to become a purchaser of the whole for £2,500, making about 5 shillings sterling per acre, and about one-sixth of the lowest price set upon the lands by the owner, by his private instructions to his agent, and signed a contract for sale which was not under seal, and subsequently executed a deed purport- ing to convey the land to the purchaser. The owner having become aware of the facts, filed a bill to have the deed delivered up to be cancelled as forming a cloud upon his title. The Court refused the relief prayed, the rule being that instruments void upon the fnce of them will not be ordered to be destroyed as forming a cloud upon the title, and under the circumstances dismissed the bill without costs ; the purchaser having been guilty of great negligence and carelessness, accompanying such dismissal with a declaration of the reasons of the Court for so decreeing. Hurd v. BilUngion, 6 Grant, 145. 4 — Reference as to. The contractors for the construction of a railway having entered into an agreement for the conveyance to them of certain lands for such railway, took possession of the land, erected a station house, and made other improvements thereon in connection with the road, and disputes having arisen between the parties the contractors filed a bill for specific performance of the agreement, and obtained a decree for that relief. Held, that what had been done by the contractors did not amount to an acceptance of the title of the vendor, and that the; were entitled to a reference to the master as to title. Jackson v. Jessup, 6 Grant, 156. Ses Specifio Performance. TORONTO ESPLANADE. See Esplanade Acts. TOWNSHIP COUNCIL. 1 In 1854 a township council passed a by-law for remunerating the councillors for their attendance at the council at the rate of $20 a year. In 1859, and thenceforward, by-laws were passed providing for the further sum of $10 a year for each councillor, for letting and inspecting the roads, in addition to the $20. The by-law passed in 1866 was moved against and quashed by the Court of Queen's Bench as ill^al. On a bill by a ratepayer, filed in the same year, the Court w^-'t'^ EQUITY DIGEST. 625 y to execute the deedi rds, or to receive the eoome a purchaser of sterling per acre, and B lands by the owner, led a contract for ule 3cuted a deed purport' owner having become !ed delivered up to be Dhe Court refused the void upon the face of ming a cloud upon the ^he bill without costs ; gence and carelessness, in of the reasons of the J Grant, 145. Eiilway having entered 1 of certain lands for ed a station house, and )n with the road, and contractors filed a bill obtained a decree for )y the contractors did vendor, and that they . to title. Jackson v. )E. L. -law for remunerating incil at the rate of $20 were passed providing uncillor, for letting and The by-law passed in ourt of Queen's Bench e same year, the Gout | ordered the members who were defendants to repay to the corporation the $10 a year they had respectively received, but held that the rate- payers were not entitled to a decree restoring the sums actually paid for the years between 1859 and 1865, (but see statute of limita- tions, St. Vincent v. Greer, 13 Grant, 173) except to the extent that such payments exceeded the statutary limit. Blaikie v. Staples 13 Grant. 67. 2 A councillor or reeve of a township is entitled, as compensation for his services^ to the per diem allowance provided for by the statute only, and any over-payments may be recovered back by the municipali- ty the word " oflficer" used in the statute not applying to the reeve or a councillor as parties to whom compensation is to be voted by the Council, he will be entitled, however, to receive from the municipality payment for moneys out of pocket advanced by him on account of the business of the municipality. St. Vincent v. Greer, 13 Grant, 173. TRADE. Carrying on offensive. It is a plain common law right to have the free use of the air in its natural unpolluted state, and an acquiescence in its being pollut- ed for any period short of twenty years will not bar that right ; to bar the right within a shorter period there must be such encourage- ment or other act by the party afterwards complaining, as to make it a fraud in him to object. Radenhurst v. Coate, 6 Grant, 139. A party had carried on the business of a soap and candle manufac- turer for several years without any steps being taken to restrain him, after which a bill was filed for that purpose, on the ground of nuis- ance and inconvenience to the party complaining ; the Court under the circumstances refused a motion for an interlocutory injunction, but reserved the question of costs to the hearing, lb. TRADE FIXTURES. Ske Injunction. Ski Injunotion. TRADE MARKS. TRANSMISSION OF PAPERS. It is not necessary to obtain an order for the transmission to the office of a master in an outer county, by the master in Toronto, of 4q 6^6 Equity DiGEst. papers brought into his office, as the master m\\ do so upon praecipe of the party requiring the papers to bo transmitted. (Spragge, V. G.) Alchin V. Bvffalo, 1 Cham. Rep., 24. TREES. The owner of real es iate sold all the hemlock bark thereon. HtU^ that the purchaser had, under such sale, a right to fell the trees. Hatch V. Firk, 5 Grant, 051. TRUST. What sufficient to lyevfect a declaration or deed of trust. Parties claiming as cestuis que trustent under a deed of trust not completed by delivery, alleged in their bill filed to declare, and for the enforcing of the trusts, that the deed creating the trust, if any, was not executed or assented to by the persons therein appointed' trus- tees, that the contents of the deed were never communicated to them by the grantors ; that when the contents were afterwards communi- cated, the trustees so appointed expressly renounced and refused to execute the trusts therein contained. The plaintiffs were volunteers, Held, on demurrer, that no interest passed by the deed, but that it was void. Smith v. Stuart, 12 Grant, 246. See Voluntary Conveyance — Trust — Trustee— Cestui Que Trust. TRUST DEED. 1 — Cestui que trust — Parties. The Court has jurisdiction to declare a trust deed void, in the ab- sence of the cestuis que trust, the trustees sufficiently representing them under order 6, sec. 2, rule 7, (1853) and it is in theexerciseof the discretion of the Court under that rule that in such cases the cestuis que trust, or some of them, are required to be made parties. King V. Keating, 12 Grant, 29. 2 — Release clause. Where a trust deed for the benefit of creditors contains no release clause, creditors who subsequently sue the settler on other securities are not thereby precluded from claiming the benefit of the trust deed, A creditor who had not come in pursuant to advertisement was allow- ed to do so after the master had reported as to the debts, and after a decree on further directions had been made, but he was required to pay all costs of and incidental to his application. Andrews v. Mauh ton, 1 Cham, Rep., 316. .'r'^^Tf 1 do 80 upon prseclpe d. (Spragge, V. C.) bark thereon. Held, ;ht to fell the trees. \r deed of trust. r a deed of trust not to declare, and for the the trust, if any, was erein appointed tnia- communicated to them afterwards communi- lunced and refused to intiflfs were volunteers. the deed, but that it -Trustee— Cestui EQUITY DIGEST. TRUSTEE. 627 deed void, in the ab- ifficiently representing litis in the exercise of hat in such cases the id to be made parties. ors contains no release ler on other securities enefit of the trust deed, Ivertisement was allow- the debts, and after a lut he was required to a, Andrews v. Mauh Trustee to sell, 1. Personal confidence, 1. Specific jxjrtormftnco, 1. trustee purchasing, 2. Subrtitutional service, 3. Costs, 4. Interest, 5. Rests. 5. Appointment of new, Security, 6. Usury, 7, Practice a.s tn, 8. I— Trustee to sell — Personal conjid^nce — Specific perform- ance. Land was vested in trustees by a deed which provided " that all or any part of the said messuages, tenements or premises shall or may be absolutely sold and disposed of by the said trustees, or the surviv- or of them, his executors or administrators, with the consent in writing of the parties of the first and second parts, (the cesluis que trusteiU,) or the survivor of them, and after the decease of the said parties of the first and second parts, then in the discretion of the said parties of the third part, for any price which they, the trustees or trustee, shall think reasonable ; and in case of such sale, the money to arise or be produced from the same shall be paid to the said trustees or the sur- vivor of them, his executors or administrators, without any necessity or obligation on the part of the purchaser or purchasers thereof to see to the application of such money, or any part thereof, so that he, she, or they shall take the receipt or receipts of the said party of the third part, or the survivor of them, his executors or administrators, or other only acting trustee or trustees for the time being, for the same money." One of the trustees died and the other was released from the trust, and two others were appointed by the Court in their stead. Held, (per Vankoughnet, C, Esten and Spragge, V. C. C, dubitantibus,) on objections taken to an attempted nale of the trust estate vested in the new trustees, with the consent of the cesluis que trustent, that the power to sell was a personal trust, and not transferrable to the new trustees; but it appearing that the sale which had been effected, with the consent of the cestuis que tnislent, was in reality a sale to one of themselves, the Court dismissed a bill filed by the vendor seeking to enforce a contract for sale, but under the circumstances without costs. Ridout v. Howland, 10 Grant, 547. 2— Trustee purchasinfj, (ix. A holding property in trust for B for life, and then for B's wife and children, purchased B's life estato at sheriff's sale. Held, that he was trustee thereof for B only, and not for the other cestuis que trust. King v, Keating, 12 Grant, 29. 628 EQUITY DIGEST. 3 — Substitutional service. Wbcie several trustees of a religious society were defendauts toi foreclosure suit, as owning the equity of redemption, and one of them had left the country, suhstitutional service for him on one of the ot..?r trustees was allowed. Somerville v. Joyce, 1 Cham. Rep., 368, 4 — Costs. In a suit against trustees under a voluntary assignment, a decree having been made by consent for taking the accounts which reserved further directions and costs, an application by the trustees afterwards, and before the accountant was ready to report for the payment oat of Court of money to pay certain expenses they had incurred in the suit, was refused with costs. Cili/ Bank v. Maulson, 1 Cham. Rep, 382. .5 — Interest — Rests. The estate of a trustee who had retained money in his hands for six years after he should have paid it over, and had rendered an ac- count claiming a balance in his favour, was held chargeable with in- terest at six per cent with annual rests. Smaft v. Ecc/es, 12 Grant, 37. 6 — Appointment of new trustees — Security. Where this Court appoints new trustees under a will (the former ones being dead or insolvent), it has no authority to require the new trustees to give security for the duo perfonnincfi of their duties. O'Hara v. Cutliburt, 1 Cham. Rep. 304 An application by petition at suit) fr ■ the appoint- ment of a new trustee under Ii. i lal Act 13 anu i4 Vic, ch. 60, nhould be made in Court, and nut in oltambers, In Re Lash,a trustee, 1 Cham. Rep., 226. 7 — Usury. The directors and managers of incorporated banks are quasi trus- tees for the general body of stockholders, and if any loss shooid accrue to the bank by their infringing the statute against usury ; they would be individually liable to make good the loss to the ank. Drake v. The Bank of Toronto, Grant, 116. 8 — 'Practice as to. See Taylor's orders to represent cestui que trust, 51 : rests order- ed against by master, 147 ; of religious bodies, 267 ; may sell lands, 278 ; to furnish detailed statement twice a y^fir, 268 ; summai; jurisdiction of Court of Chancery over, 268, EQUITY DIGEST. 629 were defendants to i tion, and one of them him on one of the , i Cham. Rep., 368. assignment, a decree ;ounts which reserved le trustees afterwards, > for the payment out r had incurred in the lulson, 1 Cham. R«p., loney in his hands for 1 had rendered an ac- id chargeable with in- / V. Ecc/es, 12 Grant, nty. dcr a will (the former ity to require the new roinco of their duties. t) fr the appoint- anu i.\ Vic, ch. 60, bers, In Re Lash, a banks are quasi tnu- od if any loss should statute against usury ; d the loss to the ank. SiE Administration—Costs— Dormant Equitiks— Fraud. I uuNT Conveyance— Grant from the Crown— Mortoaqb. —Eedbmption— Trust— Trustee and Cestui Que Trust— ivolontary conveyance. TRUSTEE ACT. 29 Vic, c. 28. The Court cannot, on a petition under the Slst section of the act to amend the law of property and trusts (29 Vic, c. 28,) make a declaration as to the construction of a will. In re Williams, 1 Cham. Rep., 372. TRUST ESTATE. Costs of trustee's defence — Mortgagee's costs. A mortgagee filed his bill against the assignee of the mortgagee, whose title was that of an assignee for the benefit of creditors under a trust deed, excluding all preference and priority, praying that the tmst estate might be first applied in payment of his speciality debt, and asking an account against the trustee with the view of chaining the trustee with all payments made by him to simple contract credit- ors before satisfying the speciality debt. He then asked a sale of the mortgaged premises to make up any deficiency. The trustee, in- stead of filing a memorandum, disputing the debt, put in his answer contesting the right of the mortgagee to the relief prayed for against the trust estates, and submitting that the mortgagee was only entitled to the usual foreclosure of sale or decree, but not to the costs other than of a praecipe decree. Held, that as the trust deed excluded all preferences and priority as to the payment, of the debts, that the rule applicable to the admin- istration of the estates of intestates did not apply, and that the mort- gagee for anything beyond what his mortgage would realize, could olaim only the same as other creditors, and as the mortgagee could have obtained all the relief he was entitled to by a decree on praecipe he was declared entitled only to the costs of such decree, and was or- dered to pay the trustee his costs of defending the trust estate. Gore Bank v. Sutherland, 1 U. C. L. J. N. S., 159. trust, 51 I, 267 ; may sell lands, year, 268 ; sumwaij rests order- 1 See Mortoau^. 630 EQUITY DIGEST. TRUSTS, TRUSTEE, AND CESTUI QUE TRUST. Authority of one trustee to act without con- currence of co-trustees, 22. Breach of trust. 0, 10, 15. Costs, 2, 3, 4, 13, 27. Crown lands, 26. Dormant equities, 12, 16. 19. Evidence of trustee, 34. Executors bound to give full explanation, 24. Fraudulent conveyance, 8. Increased rate of interest, 32, 33. Infant defendant, 1, 35. Liability of trustee, 15. " for act* of co-trustee, 20, 21. Married woman, IS, 31. " " separate estate of, 14, Mortgage, 7. Officer of corporation, si. Petition, 25. Sale of trust lands under execution, 17, Separate estate of married woman, U, ' Stutute of limitations, 19, Trust failing, 81. Trustee appointed by .Court, power of g Trustee seeking to be relieved from triut 29. Voluntary deeds, 30. Where Court refused to interfere be- tween, 11. Where a trust in favour of plaintiff pre. sumed, 23. 1 — Infant defendants. By a marriage settlement certain property was conveyed to tron. tees for the beneSt of the husband and wife during their lives, re- mainder to their issue (infants) ; after managing the trust estate for several years, the trustees filed a bill to be relieved of the trust, and a decree to this eflfect was made, which, however contained other di- rections, and under these and some subsequent orders, the expendi- ture of a part of the corpus of the estate, in improving the trust property, and furnishing the dwelling house of the parents ; and some other variations of the tru *t were authorized. One solicitor acted for all the cestuis que inist. On the cause coming on for further di- rections, the Court refused to carry out the decree and orders which had been so obtained. BaAwin v. Crawford, 1 Grant, 202. 2— Costs. Where trustees filed a bill for the purpose of having the trusts of the deed appointing them carried into execution, without suggesting the existence of any diflficulty in the way of their winding up the aflG>iirs of the estate ; the Court refused them their costs of the suit, Cummhigs v. Macfarlanc, 2 Grant, 151. 3— Where a trustee setup an improper claim to the property, the sub- ject of the trust, and a bill was filed to compel him to deliver up possession and account ; the Court charged him with the costs of the suit up to the hearing, reserving the consideration of interest and subsequent costs. Fisher v. Wilsov, 2 Grant, 260. 4 — Where a trustee is required by his cestui que trust to convey to the latter the trust lands, in a case in which such a convcjancc would be r oper, it is the duty of the cestui que trust to solve all reasonable doubts suggested by the trustee as to the course he is de- sired to pursue, and the cestui quo trust must also pay all cost!, charges and expenses properly incurred in relation to the trust, otbei' W'h EQUITY DIGEST. 631 QUE TRUST. rporation, 5. ! lands under execution, 17. ate of married woman, U. mitations, 19, r, 81. ointed by Court, power of,e, iing to be relieved from trust, leeds, 30. irt refused to interfere be- ll. ist in favour of plaintiff pre- 23. was conveyed to trus. iuriog their lives, re- iug the trust estate for ieved of the trust, and ver contained other di- !iit orders, the expendi- a improving the triut r the parents ; and some „ On*) solicitor acted ming on for further di- ecree and orders which 1 Grant, 202. of having the trusts of ion, without suggesting ' their winding up the their costs of the suit, to the property, the sub- mpel him to deliver up m with the costs of the oration of interest and t, 260. li que trust to convey to ich such a conveyance que trust to solve all to the course he is de- lUst also pay allcost«i ition to the trust, other ^ a decree for the conveyance will only be made on payment of the costs of the suit to the trustee. Rowsell v. Hayden, 2 Grant, 657. 5~^0jicer of corporation. The Mayor of Toronto, an incorporated city, secretly contracted to purchase, at a discount, a large amonnt of the debentures of the city which were expected to be issued under a future by-law of the city council, the legality of which was much questioned, and was himsolf an active party afterwards in procuring and giving effect to the bylaw, which was subsequently passed, and in obtaining an act of the legislature for the payment of such debentures, and which de- bentures he afterwards sold at a large profit. Held, that he was a trustee for the city of the profits he derived from the transaction. Qily of Toronto v. Bowes, 4 Grant, 489, Afterwards affirmed on appeal to Court of Appeal, 6 Grant, 1, and afterwards on appeal to Privy Council. ^Trustee appointed by Court, power of. A testator by a codicil to his will, directed that the trustees nam- ed m his will, or the survivors of them, or the heirs, executors or ad- ministrators of such survivor, should during the minority of his children have power to appoint some person whom they might think fit and competent to take charge of and conduct and carry on his business in the manner it had been carried on during his lifetime, and to pay the person so appointed a salary. The surviving trustee having died intestate, leaving his widow who took out letters of ad- ministration to his estate, but declined acting as a trustee under the will ; and his eldest son being an infant, and therefore incapable of acting as such trustee, the persons interested under the will of the testator, filed a bill for the appointment of a new trustee. Held^ that under the circumstances the parties were entitled lo have a new trus- tee appointed ; but, that the powers given by the codicil were personal to the trustees named in the will, or the survivor, or the heirs, &c., of the survivor, and could not he exercised by any trustee appointed by the Court. Lyon v. Rad.nharst, 5 Grant, 544. 1— Mortgage, <£'c. A bill was filed against a trustee for an account, and re-oonyey- anoo; at the hearing u decree was drawn up by consent, treating the defendant in all respects as a mortgagee. Held^ upon fippeal from the master's report, that from the time of the decree, the rights of the Ip i III 632 EQUITY DIGEST. parties respectively must be determined by the rules ordinarily appli- cable to oases of mortgage. Kerby v. Kerhy, 5 Grant, 587. 8 — Fraudulent conveyance. Property was conveyed to a trustee for the purpose of disappoint- ing creditors, and afterwards the person claiming to be beneficially interested filed a bill for a conveyance to himself. Under the cir- cumstances the bill would have been dismissed, had not the defendant by his answer admitted that he was a trustee, and it appearing that the wife, who was not a party to the suit, and was living separate from her husband, was entitled to the beneficial inheritance, an inquiry was directed as to the cause of her separation, with a view of ascer- taining how the Court should direct the rents of the estate to be appli- ed. Phelan v. Fraser, 6 Grant, 336. 9 — Breach of trust. Lands were held by one Ford as trustee for Chandler, who assign- ed by a memorandum, absolute in form, for a nominal consideration of five shillings, but in reality by way of security to one Codd, the instrument declaring the trust. Subsequently the agent of Codd wrote to Ford, stating that his writing had been assigned, and calling upon him to convey the property to Codd. Ford, in compliance with such request executed a conveyance and transmitted it by post, without ever having called for the production of the assignment to Codd. who sold it to a purchaser without notice. Upon a bill filed by Chandler against Ford and Codd, the Court held, that Ford, under the circum- stances, committed a clear breach of trust, that he was bound tu make good the trust estate, and directed an inquiry as to the present value thereof, the amount of which, together with the costs of the suit, less what might be found due by Chandler to Codd, the defendants were ordered to pay, and that Codd was bound to reimburse Ford for any sum he might be compelled to pay under the decree. Chandler v. Ford, 6 Grant,, 607. Afterwards reversed on appeal, 8 Grant, 85. 10 — Lands were held in trust for the separate use of a married woman, and upon her death in trust for her surviving children ; and also to sell or lease any portion thereof with the consent in writing of the cestuis que trustent attested by one witness, and re-invest the pie- ceeds of such sales. In pursuance of a request to that cfiect tiio trustees created a mortgage to a person for the purpose of negotiating it in order to evade the usury laws. Held, that the trust for sale did not authorise the execution of this mortgage, and that the same wai } t : 11 1 T5" t'' EQUITY DIGEST. 633 3 ordinarily appli- mt, 587. }se of disappoint- to be beneficially Under the cir- i not the defendant it appearing that as living separate ritance, an inquiry h a view of aacer- , i estate to be appli- |( f indler, who assign- linal consideration to one Codd, the A gent of Codd wrote i, and calling upon mpliance with such y post, without ever aent to Codd, who I filed by Chandler under the circum- was bound to make the present value »sts of the suit, less .\e defendants were mrsQ Ford for any cree. Chandler v. use of a married ving children ; and )nsent in writing of id re-invest the pro- to that effect liio rpose of negotiating he trust for sale did that the same wu void as against the children. But it being alleged that the wife had participated in the misappropriation of the trust fund, further enquiry was directed on that point, with a view to making her life interest liable for the money advanced. JSnwlan v. Logie, 7 Grant, 88, 11 — Where court refused to interfere betiueen. A debtor, in August 1846, conveyed ail his estate, both real and personal, in trust for the benefit of his creditors. Part of the proper- ty conveyed was a lot of land containing about 113 acres, which in the schedule of assets was valued at £100. In September 1852, an intended sale by the trustees at £175 was objected to by the debtor, on which occasion he asserted that the front twenty acres of the lot were worth £200. After several fruitless attempts to sell, both by the debtor and the trustee, a sale was effected in January 1856 for £1,300. In answer to a bill filed to set aside this sale on the ground of inadequacy of price, it was shewn that in 3Iarch 1855 the best price the debtor had been offered, after endeavoring for two years to sell the property, was £1500, payable partly in 11. II. bonds, and that the trustee and others interested had offered the debtor ample oppor- tunity of redeeming the estate upon the payment of the price for which it was agreed to be sold. The Court, under the circumstances, refused to interfere. Linton v. Michie, 7 Grant, 182. Vi— Dormant equities. The decree pronounced in the case of Beckett v. Wragg, as report- ed 4 Grant, 45, reversed on appeal, and the bill in Court below dis- missed with costs. Wragg v. Becfcitl, 7 Grant, 220. n— Costs. A trustee having refused to allow his name to be used as plaintiff, was refused his costs of defence, although no blame attached to him in other respects. EUis v, EHis, 7 Grant, 102. H — Separate estate of married ivomau. The owner of real estate conveyed the same to trustees for hia daughter E S, one of whom was her husband, to dispose thereof " in such manner as the said E S, her heirs and assigns may at any time advise or direct, and to make such leases, and further to make such conveyances in fee simple of the said lands, &c., as the said E S, her heirs, &o., may at any time advise or direct." The trustees created a mortgage in which E S joined. Held, that the conveyance to the trustees effected a settlement to the separate use of E S, that her joining in the mortgage was a sufficient direotiop to the trustees, that 4h 634 EQUITY biGlESt. the mortgagee was not, under the circumstances, bound to see to the application of the money, and that in default of payment he was en- titled to the usual decree of foreclosure. Place v. Spawn, 7 Grant, 406. 15 — Breach of tnisl — Liability of trustee. A cestui que trust of land created a mortg,igtj by an assignment, absolute in form, for a nominal consideration, but neglected to inti- mate to the trustee that the transfer was intended to operate as a security only; in fact t!ie lands purported to be couveyed to the trustee had already been sold and conveyed to a purchaser. The trustee, without calling for the production of the assignment by his cestui que trust, t xecutcd a conveyance by way of quit claim to the original vendor, who conveyed other lots in their stead, absolutely, to the assignee of the cestui que trust. Held, reversing the decree of the Court of Chancery, that the trustee was not, under the circum- stances, answerable for any loss that had been sustained by the party beneficially interested. Ford v. Chandler, (in appeal,) 8 Grant, 85. 16 — Boriiiant equities. The decree of the Court of Chancery in the Attorney-General v. Grasett, as reported C Grant, 485, affirmed. Attorney-General v. Grasctt, (in appeal,) 8 Grant, 130. 17 — tiale of trust lands under execution. A judgment was recovered against trustees of land held under a conveyance absolute in form, of which no trust had been actually de- clared. Execution issued on the judgment, under which the sheriff sold the trust land, but the purchaser knew that the execution de- fendants were trustees only. Upon a bill tiled by the cestui que trust against the trustees and the purchaser at the sheriff's sale, the sale by the sheriff was declared void, the plaintiff decreed to be en- titled to the land, and the defendants were ordered to pay the costs of the suit. Blackburn v. Gntnmersnn, 8 (Jrant, 331. 18 — Married woiaaii. A trustee dealing with his cestui que trust is bound to communi- cate all material facts in the transaction, therefore, where a trustee of lands for the payment of debts, paid the debts, without exercising the power of sale for that purpose, and took a release from the cestui que trtist to himself, without informing them thatLj had previously caus- ed a large number of bricks to be manufactured upon the land, the bound to see to the payment he was en- r. Spawn, 7 Grant, by an assignment, it neglected to inti- led to operate as a be conveyed to the a purchaser. The I assignment by his af quit claim to the ■ stead, absolutely, to ;rsing the decree of ^ under the circum- istained by the party ppeal,) 8 Grant, 85. Attorney-General v. Attorney-General v. land held under a lad been actually de- der which the sheriff it the execution de- d by the cestui que the sheriff's sale, the ff decreed to be en- Bred to pay the costs t, 331. bound to comniuni- rc, whore a trustee of vithout exercising the •e from the ceshii que had previously caus- upon the land, the ■v^^,-;-*:- EQUITY DIGEST. 635 profits of which might have paid a large part of the claim of the trustee against the estate, the release was held void. Hope v. Beard 8 Grant, 380. \^— Dormant equities^ act — Statute of limitations. Where lands are devised to trustees to sell and divide the proceeds among residuary legatees, this is not a charge upon land within the meaning of the 22nd Vic, ch. 88, sec. 24, so as to be burred by the lapse of 20 years ; but it is the case of an express trust within the 32nd sec. of the same act, following Watson v. ^aul, 1 Giffard, 188. Tiffany v, Thompson, 9 Grant, 244. 20 — Liability for acts of co-trustee. The duties and responsibility ,of trustees and executors considered and acted on. Larkin r. Armstrong, 9 Grant, .'i90. 21. Trustees with a power of invcs^ting in real estate, purchased at the instance of one of their number n lot of land, for £1200, which upon enquiry before the master was found to be worth not more than £900. The master by his report charged the trustees with the full sum £1200, refusing to give them credit for the £000 on the ground of collusion on the part of one of the trustees. The Court on appeal considered, that under the circumstances, credit should be given for the value of the land, and referred tliu report back to the master, lb. 22 — Authority of one to act ■without concurrence of co- trustee. A and B, executors and trustees under a will with power of sale, sell and take mortgage to secure purchase money, they being in the recital named as executors. B, without the knowledge or consent of A, assigns the mortgage and appropriates the consideration money to his own use. Held, that no estate passed under the assignment, except so fur as the trust estate might be found debtor to B, and also, that as between the contending equities of the trust estate and the assignee, the maxim qui prior est in ti'-apare potior esi in jure would apply in favor of the trust estate. Henderson v. Woods, 9 Grant, 639. 23 — Where a trust in favor of plaintiff presuraed. In a suit by cestui que trust against his trustees, seeking, amongst other things, to obtain a conveyance of lands, it was alleged that three lots of land had been convoyed to trustees I'or the plaintiff and his sister, one of such lots haviii,::; already been conveyed by the trustees to a purchaser at the request of the cestui quo trustcnt. The con- 636 EQUITY DIGEST. veyance to the trustees was not produced, and the memorial shewed only a conveyance to the trustees without expressing any trust. The Court, under the circumstances, presumed that a trust had been de- clared as to all the lots, and gave relief to the plaintiff as to the two lots still vested in the trustees, and which the Court held might be vested in the plaintiff by the decree in the cause under the statute. McDovgall V. Bell, 10 Grant, 283, 24 — Executors hound to give full explanation. While the Court will not exact from trustees, in the management of the estate, more careful conduct than a prudent man would bestow in the managcmcr.* of his property, still it requires from them full ex- planation of all their dealings, and the causes which may have led to outstanding debts not having been collected, or to the disappearance of property belonging to the estate. Cbisholm v. Barnard, 10 Grant, 479. 25 — Partition — Crown lands. The defendant, by answer, having submitted to account as trustee, the Court made a decree for an account and partition, although with- out such submission in the answer there was no evidence of the defend- ant holding the property in trust. Culhhert v. Cuthbtrt, 11 Grant, 88. 26 — Purchase by trustee. Where a trustee deals with his cestui que trust for the conveyance to himself of any portion of the trust property, it rests with the trus- tee to shew that everything in connection with the transfer was fair and just, B/ain v. Terryherry, 11 Grant, 286. 27— Cos^s. It is the duty of a trustee to use reasonable diligence to have the accounts of the trusts ready and to render them within a rcai^onable time after they have been asked for on behalf of the cestuis que trus- tent ; and where a trustee wholly neglected this duty, though he offer- ed his books for inspection by the parties interested, he .ras charged with the costs of the suit up to the hearing. Randall v. Burrowes, 11 Grant, 364. 28 — Voluntary deeds. A deed purporting to convey land to M was executed by the plain- tiff under circumstances that disentitled the grantee to hold it as a valid deed entitling him to the beneficial interest in the property. The grantee (M) having afterwards sold and conveyed the land to R, receiving piirt of the purchase money and a mortgage for the balance. ' •"' T "*! 1 EQUITY DIGEST. 637 he memorial shewed }ing any trust. The I trust had been de- laintiif as to the two Oourt held might be 3 under the statute. ition. in the management nt man would bestow ■es from them full ex- liich may have led to to the disappearance . Barnard, 10 Grant, to account as trustee, tition, although with- vidence of the defend- uthbtrt, 11 Grant, 88. st for the conveyance it rests with the tras- ith the transfer was 286. diligence to have the within a reasonable the cestuis que trug- duty, though he offer- sted, he .ras charged landall v. Burr owes, ixccuted by the plain- antee to hold it as a •est in the property, iveyed the land to R, tgage for the balance. Hetdf that on confirming the title of the purchaser (R) the plaintiff was entitled to the balance of the mortgage money from R, and to a decree against M for what M had received. Fraser v. Rodney, 11 Grant, 426. 29— Trustees seeking to be relieved from trust One of several trustees filed a bill against his co-trustees and his cestuis que trust to be relieved from the trust, on the grounds set forth in the bill. The other trustees by answer asked for the same relief on the same grounds, which were applicable to all, and the cestuis que trust, most of whom were adults, submitted to the relief. The Court granted a reference to the master for the approval of new trustees in place of all the existing trustees. Proud foot v. Tiffany, 11 Grant 461. In such a case the Court, at the instance of the cestuis que trust in granting the usual reference, added a direction, that if the master, on taking the evidence, found sufficient reason for reducing the num- ber of trustees, or for the app-i^intiuent of one of the cestui que trust as one of the trustees, or as sole trustee, he should report the facts and reasons to the Court, lb. 30 — Voluntary deeds. Real estate was conveyed to three trustees in trust for the settlor for life with remainder for his children ; two of the trustees died, and the settlor afterwards verbally arranged with the surviving trus- tee that he would release to the latter his equitable interest for life in trast for the same children, that the trustee should thereupon appoint the settlor and his son co-trustees in the place of the two deceased trustees, and should leave the whole management during the settlor's lifetime to the son. The release, which was without consideration, was accordingly executed, and the appointment of co-trustees made. The son, with the consent of the other trustees, received the rents, but niisappropriated them. Held, that the other trustees were not bound to make good the loss. Miichell v. Ritchey, 11 Grant, 511. 31 — Trust failing. A party procured a release of a mortgage from a mortgagee, in or- der that a mortgage might be made by another party, by way of trust, to raise money ; the trust was never carried out, the party for whose benefit it was intended having died. His executors then filed a bill to foreclose, and thereupon the mortgagor filed a bill, on the ground that the trust having failed, the mortgage should be delivered up to 638 EQUITY DIGEST. "! ,^ be cancelled. Held, that he was entitled to the relief. WorUar^. ion V. EllioU; Elliott v. Worthington, 6 U. C. L. J., 65. 31 — Married woman. A married woman owning land, she and her husband contracted for the sale thereof, but the deed executed to the purchaser was a conveyance by the husband only, with a bar of dower by the wife. The error was not discovered until after the property had been dis- posed of in parcels, and passed into other hands. The original owner and her husband then executed for a nominal consideration, a deed con- veying the property absolutely to one of the parties interested, but under the belief that the only effect of such second deed was to re- move the defect in the first deed, and to confirm the title of all par- ties claiming thereunder. On a bill by one of these parties, and the grantor (the husband being dead), Vice Chancellor Esten decreed the grantee in the second deed to be a trustee for all the parties in- terested, and this decree, on appeal, was affirmed with costs. Grace V. McDermoH, 13 Grant, 247. 32 — Liability for increased rate of interest. The principle on which trustees are liable to be charged with an increased rate of interest or interest with annual rests considered and acted on. Wightman v. HelhiceU, 13 Grant, 330. 33 — Where a trustee had retained moneys of the estate in bis hands, instead of paying off debts of the estate, and had improperly mixed these moneys with his own at his bank ; the Court, without saying what in future, according to the value of money, or the amount of interest payable on investments, might be a fair rate to charge on moneys improperly withheld or used by a trustee, charged the trus- tee with interest at 8 per cent, on all balances in his hands, lb, 34 — Evidence of trustee. In a suit against a trustee to carry out the trusts of a deed for the benefit of creditors, a payment to the plaintiff was proved by the evi- dence of the trustee only, although this was considered sufficient to discharge the estate from liability in respect of this sum, still he could not thus discharge himself from liability for the amount to the plain- tiff. 7A, 36 — Trustee clalmiwj to be discharged. When one of the trustees was dead, and another was removed for misconduct, the remaining trustee was held to be entitled to be dis charged from tho trust. Mitchell v. Ritchei/, 13 Grant, 445. (^ relief. Worthing. J., 65. husband contracted the purchaser was a dower by the wife, perty had been dis- Thc original owner deration, a deed con- rtics interested, but 3ond deed was to re- a the title of all par- Lcse parties, and the lellor Esten decreed jr all the parties in- with costs. Grace 4. be charged with an rests considered and JO. )f the estate in his ind had improperly the Court, without loney, or the amount lir rate to charge on je, charged the trus- his hands. //', sts of a deed for the IS proved by the evi- isidered sufficient to is sum, still he could amount to the plain- ler was removed for le entitled to be dis Grant, 445. EQUITY DIGEST. 639 36 — Infants. Where the trustee for infants resided out of the jurisdiction and a person resident within the jurisdiction had a contingent interest in the trust fund ; the fund was ordered to be secured in Court instead of being paid over to the trustee. Stileman v. Camj)bell, 13 Grant, 454. See Attouney and Client— Mortqaqe. TRUSTEES OF QUEEN'S COLLEGE. University — Removal of professor — Jurisdiction. The trustees of Queen's College, Kingston, removed a professor in their discretion. Held, reversing the judgment of the Court below that there was no jurisdiction in equity to interfere for his restoration &c., and that under a charter, a sufficient number of trustees mi<»ht remove in their discretion. Weir v. Mathieson, 4 Grant, E. & A. R., 123. ULTRA VIRES. See Specific Performance. UNCERTAINTY IN TENURE. See Specific Performance. UNDERTAKING TO SPEED. See Dismissing Bill. UNDERVALUE. A sale at an undervalue to a person under whose influence the grantee is, is as objectionable as a gift would be under like oirci^m- stances. Mason v. Seney, 12 Grant, 143. See Sheriff's Sale. UNDUE INFLUENCE. Bill dismissed without coats, 1. Mistaice, 2. Sale at undervalue, 3. Mortgage. Sale with right of re-purohaae, 4. Will, 5, Fraud, 6. Elder brother, &c.,7. 1 — Bill dismissed withoiU costs, &c. Where a party being in gaol oa a charge of felony, was liberated CD the present defendant beooming bail for his appearance, and hay* ■I I IP" 640 EQUITV DIGEST. liar ing in the interval between his liberation and trial, executed a deed of his property to the defendant for an inadequate consideration ; afterward? filed a bill to set this conveyance aside, on account of fraud, alleging that he had executed it under the impression, and upon the assurance of the defendant, that the deed was merely a re> cognisance for his due appearance to take his trial. This allegation being disproved, the Court dismissed the bill, but without costs, and gave the plaintiff leave to file another if he should be so advised, and set aside the conveyance on the ground of inadequacy of consideration and undue influence. Vallier and Lee, 2 Grant, 606. 2 — Mistake. An unequal division of a residuary estate, agreed to by the parties interested, and sanctioned by the executors, was held not be binding, where it appeared that the lady to whom the division was unjust had agreed thereto without professional or other independent advice, with undue haste, and in ignorance of the real value of the largest item of the assets of the estate; the other party to the agreement being her brother-in-law, and being the only person, except the executors, who appeared to have had any of her confidence in matters of business. Clarke v. Hawke, 11 Grant, 527. 3 — Sale at undervalue. A sale at an undervalue to a person under whose influence the grantor is, is as objectionable as a gift would be under like circum- stances. Mason v. Seney, 12 Grant, 143. 4 — Mortgage — Sale ivith right of re-purchase. An improvident bargain for the sale of the plaintiff's property, where the parties were very unequal as regards means, intelligence and otherwise, and the papers were drawn by the vendee, who omit- ted some important parts of the bargain, and the vendors had not the protection of competent, independent advice, was held not to be binding on the vendors. On making an advance of money on the security of real estate, it is not competent for the lender to bargain for the purchase of the property at a specified sum in case of default in re-paying the ad- vance at the time stipulated. The plaintiffs executed an absolute assignment of their interest in certain real estate, and the assignee gave his note for £500, which he all^d to be the consideration for such assignment, payable in two years, subject to a condition expressed in the note, that the maker .•'STpr;- 71 EQUITY DIGEST. 641 , executed a deed ate consideration; dc, on account of e impressioD, and 1 was merely a re- This allegation (irlthout costs, and be so advised, and sy of consideration 606. il to by the parties jld not be binding, ion was unjust had indent advice, with the largest item of rrecment being her the executors, who latters of business. 'hose influence the under like circum- se. aintiff's property, neans, intelligence vendee, who omit- vendors had not ?as held not to be ty of real estate, it e purchase of the re-paying the ad- )f their interest in or £500, which he t, payable in two e, that the maker might retain thereout any advances he should in the meantime make to the assignors : no change of possession within the two years took place : the assignee alleged that tho transaction was a sale to him with a right to the assignors to re-purchase by re-paying any advances he should make within two years ; but no evideaeo of this being given, the Court held that the transaction must be treated as a mortgage, and that tho agreement for sale in case of default was therefore void. Fallon V. Keenan, 12 Grant, 388. 5— Will. The plaintiff being old and infirm was induced by his son with whom he resided, and who had e;reat influence with him, to agree in writing to leave to the decision of two referees the terms of his will, and to execute a will in pursuance of their award. A lease to the son was executed at the same time ; the son having failed to establish that his father had competent independent advice in the matter, or had entered into the transaction willingly or without pres- sure from the son, the Court decreed the Icaso void, and the will re- vocable at the pleasure of the plaintift". Donaldson v. Dimalhon, \t Qrant, 431. ^—Transaction set aside for. T, who owned a farm which he had mortgaged to its full value, executed a conveyance thereof to the defendant, and procured her to execute a mortgage thereon, in his favor, for £1125. The defend- ant was a woman 50 or 60 years old at this time, and had been living for some weeks at T's house, who had her entire confidence, she had no adviser in the matter and there was no reliable evidence of the deeds having been read over or explained to her, and no eviJenoe of any previous negotiation for a purchase by her. Held, that the transaction was invalid. Elgie t\ Campbell, 12 Grant, 132. 7 — Elder brother, tor, i. e will make certain irty may do so, and )t usury. Emviom must be as partic- ury at law. Semble. he ground of usury, 80, passed at a sub- been made upon a dissenting) held a file a bill to redeem re the expiration of ixo7i, 5 Grant, 314 3 — Objection of, should be taken in pleadings. For the purpose of raising money, a sale of bank stock was made by the lender to the borrower at a premium, but owing to the bank books being closed, the transfer was never completed, and the lender re-purchased the stock at par. Held, that an objection to this trans- action on the ground of usury should have been taken by the plead- ings- Proudfoot V. Bush, 7 Grant, 518. 4 — Assignee of debtor. The rule of the Court that a person seeking to impeach a security, on the ground of usury, must offer to pay the amount actually ad- vanced and interest, applies equally to the assignee of the debtor, although ignorant of the terms on which the security was effected. Brake v. The Bank of Toronto, 9 Grant, 116. Ske MoaTaAQE— Pleading, VACATION. It is irregular to proceed with references in the offices of the mas- ters, unless by consent, during the long vacation. Andersonv. Thorpe 12 Grant, 542. See Amendment. VALUABLE CONSIDERATION. A mortgage to creditors to secure their debts, is a sufficient valu- able consideration to give a prior registered conveyance precedence over a conveyance previously executed, but registered subsequently. Fraser v. Sutherland, 2 Grant, 442. VARIATION OF CONTRACT. See Specific Performance. VARYING DEED. See Deed. VENDEE. See Vendor and Purchaser. VENDOR. See Vendor and Purchaser. 646 EQUITY DIGEST. VENDOR AND VENDEE. See Vendor and Purchaser. VENDOR'S LIEN. Costs, 4. Exchange of lands, 13. Infancy, 6. Injunction, 3. Not waived by suing, 8. Not waived by a bargain for maintenance, 2. Parties, 5. Priorities, 7. Sale under excciit- t,,i. Sale of pru" , j. Speciflr ; ,12. Undertalv . • > become security, 9. What not a waiver, 11. Where relief granted without costs. 1 — Sale under execution. Where the purchase money of an estate was left unpaid, and a creditor of the purchaser (without notice) sued out an execution against lands, under which the premises in question were sold to the defend- ant, who had notice, the vendor's lien on the pro pen y Ibi he unpaid purchase money was held to attach in the hands of tlio ^ archaser at sheriff's sale. And, qucere, whether, if the purchase at sheriff's sale had been completed without notice, the conveyance by the sheriff would not have conveyed the property subject to all existing equities against the debtor. Strong v. Letois, 1 Grant, 443. 2 — Not waived by a bargain to maintain. Land being conveyed in consideration of the vendee providing the vendor with maintenance, washing, &c., the vendor retains a lien for the consideration. Fame v. Chapman, 6 Grant, 338. 3 — Sale of growing timber — Inj a action. The owner of land Jigreed to sell the growing timber therein, and by the terms of the agreement it was stipulated that the pric3 should be paid by the purchaser's note, endorsed by a responsible j)arty, re- newable for half at its maturity, the dclivcrj of such note, .vithin ten days from the date thereof, to be the completion of the consideration for said agreement. Held, that this was only a mode of paying tlie purchase money, and was not substituted for it, and that, upon fail- ure of payment, the vendor was entitled to an injunction to restrain the felling of timber, or the removal of such as had be en already cut down. Mitchell v. McGoffey, 6 Grant, 361. ■Where relief granted ivithout costs — Costs. On a sale of land for £3,000, the purchaser paid at the time of the execution of the conveyance £2,750, and gave his pror.iissory notes for the balance, payable in throe and four years ; aficrwurds he execut- ed a mortgage to his father for the £2,75u, alleged to have been ad- Ui 5^)!^?*f| EQUifY Digest. 647 Jti"n,l. tiir, 1, 3. ,ioe, 12. become security, 9. rer, 11. inted without costs. left unpaid, and a m execution against sold to the defend- er -y : .1 he unpaid of i.!:-,' [ archaser at lase at sheriff's sale ince by the sheriff all existing equities 43. n. ndee providing the r retains a lien for 338. imbrr therein, and lat the prici should sponsible jiarty, rc- ich note, .vithin ten 3f the coiisidcration lode of paying tlie and that, upon fail- junction to restrain had been already sis. d at the time of the is pror.iissory notes orvards he exccut- '1 to have been ad- vanced by him to his son to effect the purchase. The purchaser died intestate, v?ithout issue, and before the notes fell due the vendor filed a bill against the father as heir-at-law, alleging that, he intended to sell the property so as to defeat the vendor's lien, and praying that it might be declared that he had a first lien or charge upon the estate for the amount due him. Held, that he was entitled to a de- cree for that purpose, but without costs. Foulds v, Powell, 6 Grant, 375. 5— Parties. Where a suit to enforce by sale a vendor's lien is instituted against the heirs-at-law of the purchaser, the widow of the vendee is a neces- sary party in respect to her right to dower. Paine v. Chapman, 7 Grant, 179. 6 — Infancy. The defendant, a minor, f archased an estate and gave the vendor a mortgage for tlie purchapj money. The mortgage was afterwards assigned to the plaintiff. On coming of age the defendant repudiated the mortgage, but adopted the purch..se by bringing an action to re- cover possession. The mortgage being the deed of an infant was hold- en absolutely void. But it was also holden that the mortgage being void, a lien for the purchase money resulted to the vendor, and that such lien passed to the plaintiff by the assignment of the mortgage Grace v. Whitehead, 7 Grant, 591. 7 — Priority of registered judgment over an unregistered judgment. A purchaser of real estate executed to his creditor a mortgage there- on for a balance of unpaid purchase money, but which was not regis- tered until after a judgment recovered against the purchaser had been recovered and registered. Held, that the judgment had priority to the mortgage, although the deed to the purchaser had never been regis- tered ; and that, under sucii circumstances, the vendor did not retain any lien for the unpaid purchase money. Burgess v. Howell, 8 Grant, 37. S—iVoi 'Waived by suing for purchase money. The lien of a vendor for unpaid purchase money is not waived by the fact his suing and recovering judgment for the amount, although such recovery is subsequent to another judgment registered against the purchaser. Flint t». Smith, b Grant, 339. i^.iv !iU 648 EQUITY DIGEST. 9 — Undertaking to become security. D having been negotiating for the purchase of a large quantity of unpatented lands, and the vendee of the crown requiring security for payment of the purchase money agreed upon between them, D. ob- tained from his father a letter addressed to himself in the following words. "If you make the contemplated purchase from Henderson of wild lands amounting to 16000 acres, at $6 per acre, and deducting all amounts due or thereafter payable on the same, S will become your security for the payment of the principal on the crown lands, and interest^ and the interest on all deeded lands. Walter H. Dick- son." And in a postscript thereto added, *• I will see you have £2000 to pay in cash when all papers are signed. W. H. Dickson," Held, that this letter addressed to the son was not such a promise to provide for the payment of the £2000 cash as could be enforced by the ven- dor, and the vendor having conveyed the lands to the son, and taken the bonds of the father for payment of the price over and above the £2000, and without any reference to it, one of which bonds was subse- quently delivered up to the father upon other security being given, and a large portion of the lands to which it referred having been con- veyed by the son to the father ; hcldy also, that under the circumstances the vendor was not entitled to enforce his lien against those lands in the hands of the father for the portion of the £2000 remaining un^ paid, but that his lien therefor would attach upon the lands remain- ing in the possession of the son, and to which alone the lien must be oonfined. HelUwell v. Dickson, 9 Grant, 414. 10 — Sale of land and chattels for undivided price. B having an interest in unpatented lands, enters into partnership with D and A, and each acquires an undivided one-third in the lands. A then conveys his third to D, who continues the partnership busi- ness with B, having an undivided two-thirds, and also owning chat- tel property in partnership with B. B afterwards agreed to withdraw from the partnership, and sell all his interest in both lands and chattels to D in a lumping bargain for £350. Conveyances of the chattels, and also of the real estate were tlicn executed, in which the consideration stated appeared to be merely nominal, and there was no means of distinguishing the price of the land from that of the chattels. Promissory notes were given to secure the purchase money, and possession of all the chattel property w.is taken by D. On a bill filed by endorsers of promissory notes against D, and purchasers un- der him claiming a lien upou the land, held, that the mode of sale Mil a large quantity of uiring security for feen them, D. ob- ilf in the following from Henderson of ere, and deducting ne, S will become t the crown lands, Walter H. Dick- lee you have £2000 I Dickson." Held, . promise to provide iforced by the ven- the son, and taken )ver and above the ch bonds was subse- jurity being given, sd having been con- r the circumstances linst those lands in )00 remaining un- the lands remain- ne the lien must be d price. rs into partnership -third in the lands, partnership busi- also owning chat- agreed to withdraw both lands and onveyances of the utcd, in which the EQriTT DIGEST. 649 n lal, and there was I from that of the purchase money, by D. On a bill md purchasers un- t the mode of sale and the circumstances shew it to be the intention of the parties that no lien should exist. Wilson v. Daniels, 9 Grant, 491. 11 — WlMt not a waiver. L sold land to R, who paid £175 in cash, and assumed payment of two mortgages made by L, as one-third of the consideration agreed on; and a mortgage was executed by R, to secure another third of the purchase money. L's wife refusing to bar her dower, a bond was executed by R, providing for payment of the remaining one-third at a certain period. It was arranged, that in case of the death of L or bis wife before the time fixed, the money secured by the bond was to be paid within one year thereafter, to the survivor. Held, that under the circumstances L had not waived his vendor's lien for that portion of the purchase money secured by the bond. Rutherford v. Rutherford, 11 Grant, 565. 12 — Specific performanc. On the sale of land the purchaser paid a certain sum in hand, gave a mortgage on other property owned by him for another portion of the price, and for the balance four promissory notes were to be given made by the purchaser, and such other persons as would render them salable, without being indorsed by the vendor, one only of the notes was delivered. Held, that the vendor retained no lien on the prop- erty sold for any portion of the purchase money. Held, also, that the bill could not be sustained as a bill for specific performance, the agree- ment for the delivery of the notes being such as this Court could not execute, and the remedy being at law for breach of the contract. DeGear v. Smith, 11 Grant, 570. U— Exchange of lands. I &^d S, the owners of two distinct parcels of land, agreed to ex- change the one for the other. S's land was subject to a mortgage which he agreed to pay off, but did not, and J was compelled to re- deem the same. Held, that S was entitled to a lien on the land con- veyed by him to S, as for unpaid purchase money, for the amount I paid to redeem the mortgage. Seney v. Farter, 12 Grant, 546. 4j f! 650 EQUITY DIGFEST. VENDOR AND PURCHASER. ■:i...i Hortgago, 16. Notice, 3. Parol evidence, 18. Payment for Improvements, 9. Principal and agent, 11. Rescission of contract, 7, 8. Sale subject to encumbrances, 4. Specillc performance, 17, 18, 19. Trustee to sell, 10. Twenty years' possession, 21. Thirty " 2. Waiver, 19. Who should prepare conveyance, 20. Setting aside conveyance, 2, (2.) Costs, 9. 14. Covenant for further aitsurance, 17. Defective title, 9. Defence at law, 14. Duty of purchaser aa to vendor's mortgage, 16. Election of remedy, 19. Equitable execution, 16. Interest, 22. Inquiry as to title, 23. Injunction, 12, 13. Jurisdiction, 17. Latent defect, 10. Lien forunpaid purchase money, 1, 8, 6, 6, IS, 16 1 — Vendor's lien. A vendor of real estate who takes by way of security for the pur- chase money, the joint a^d several promissory notes of the vendee and surety, docs not lose bis lien on the estate for the purchaK money, though he took no mortgage therefor. Colborne v. Thomas^ 4 Grant, 102. 2 — 30 Years possession. (1.) After a thirty years' possession of land, by a person to whom the owner who was the grantee of the crown, had conveyed the property in exchange for other lands, the vendor discovered a defect in the title by reason of the non-registry of the conveyance in the proper office, and executed a deed to a person who was in possession of a portion of the property for several years under the vendee's heir. To a bill filed to set aside this conveyance, the vendor and the second vendee set up the non-heirship of the plaintiff, purchase for value without notice, and that the original vendee was a minor at the tin.e of the exchange, and had repudiated the transaction on becoming of age ; and further, that he had no title to the land conveyed in ex- change. The Court considered that the long possession, and the absence of proof of the facts alleged by the defendants, were sufficient to entitle the plaintiff to a decree with costs. Harkin v. Rabidon, 6 Grant, 405. Affirmed on re-hearing, see Deed, 8. iS. 6'., 7 Grant, 243. 3 — Vendor's lien — Notice. A vendor took from the purchaser a mortgage, for part of the con- sideration money, but did not register the conveyance until several months after the deed to the purchaser had been registered ; in the meantime the mortgagor created a second incumbrance in favor of bona fide mortgagees, which was registered long prior to the first mortgage, without notice of the vendor's incumbrance. Held., that the want of a receipt for the consideration money, upon the deed to Wl^ R. 18. provements, 0. jent, 11. ntract, 7, 8. encumbrances, 4. lance, 17, 18, 19. 10. tossession, 21. 2. ipare conveyance, 20. mveyance, 2, (2.) lecurity for the pur- notes of the vendee te for the purchase Jolborne v. Thomas, by a person to whom )nveyed the property 'ered a defect in the eyance in the proper 3 in possession of a le vendee's heir. To dor and the second purchase for value a minor at the tiii>e ;tion on becoming of and conveyed in ex- possession, and the dants, were sufficient Harkin v, Rabidon, 7 Grant, 243. !, for part of the con- veyance until several m registered; in the mbrance in favor of ang prior to the first ibrance. Held, that By, upon the deed to EQUITY DIGEST. 651 the purchaser, was not sufficient to postpone the second incumbrance. Baldwin v. Duignan, 6 Grant, 595, 4 — Sale subject to incumbrance. Where property is sold upon credit, and the vendor executes to the purchaser a bond for the due conveyance of the estate, free from incumbrances, on payment of the last instalment of the purchase money}; the purchaser cannot, during the currency of the term of credit, call upon the vendor to remove a mortgage created by him upon the property, or to allow the purchaser to apply his purchase money as it becomes payable in discharge of the incumbrance. Chantler v. Ince, 7 Grant, 432. See in connection with this, Thompson v. Brunskill, 7 Grant, 542, and see " Specific performance, Vendor's Lien." 5 — Lien for unpaid purchase raotiey. A tract of land was bought by several parties with a view to lay- ing oflF a portion thereof into building lots, and selling the same to purchasers ; for greater facility in doing so, the legal estate was vest- ed in one of them, as trustee however for the several parties interested. Subsequently one of the owners sold out his share, receiving in pay- ment notes of hand made by his vendee, and indorsed by two other persons. Held, reversing the decree of the Court of Chancery, that the vendor did not under such circumstances retain any lien for the purchase money remaining unpaid. Bonlton r. Gillespie, 8 Grant, 223. 6— If a vendor conveys land to a purchaser under an agreement that he will execute a mortgage to secure the purchase money, which agreement the vendor neglects to rejiister, and judgments are sub- sequently registered against the purchaser, they will prevail over the agreement. Gait v. Buih, 8 Grant, ilGO. The vendor of lands having taken a mortgage upon them for the purchase money, accepted from the purchaser a transfer of other lands, the price of which he endorsed on the mortgage, and the lands eo transferred being subject to incumbrances, the vendor took from the purchasers his bond to discharge thorn, which he having failed to do, the vendor was held entitled to claim under his mortgage against the land ^o\A by him, the amount of the incum- brances 80 left unpaid, the rights of no third party having in the meantime intervened. Maulson v. Moor, 8 Grant, 448. il I till lllili 652 EQUITY DIGEST. 7 — Rescission of contract— Revocation by will. Where judgment is registered against the vendee ot lands, prior to the conveyances being executed in pursuance of the contract, the ven- dor is not entitled to a rescission of the contract in default of pay. ment, but may obtain a decree of foreclosure or sale. Gait v. Bush^ 8 Grant, 360. 8— The vendor recovered a judgment against his vendee for a portion of the purchase money, afterwards he wrote the vendee a letter can- celling the agreement. Held, that having cancelled the contract he could not afterwards enforce his judgment. Cameron v. Bradburry, 9 Grant, 67, 9 — Defective title — Payment for improvements — Costs. A vendor who was unable to complete his contract for sale of real estate, by reason of his title being defective, had notwithstanding in> stituted proceedings at law to enforce payment of the purchase money. Thereupon the purchaser filed a bill alleging his willingness to per- form the contract if a good title could be made, but that a good title could not bo made ; that he had paid part of the purchase money, and made improvements on the property. Upon a reference as to title, it was shewn that the vendor was unable to make a good title. On further directions, the Court ordered a perpetual injunction to re- strain the action at law ; re-payment of the amount of purchase money paid with interest, and that same should form a charge on de- fendants interest in the land, and that the defendant should pay the costs of the suit, but refused the plaintiff any allowance in respect of the improvements made by him. Kilbom v. Workman, 9 Grant, 255. 10 — Trustee to sell — Latent defect. In the year 1856 a purchase was effected of certain lands from one W, and a mortgage given back by the purchaser for the greater portion of the purchase money. Such purchn&e being effected with the view of laying the property out into building lots for the purpose of sale, which was accordingly done, and roads laid out running through the property. Several years afterwards a purchaser of one of the lots so laid out objected to complete his purchase on the ground that W at the time he acquired his title from his vendors, the Bank of U. C, was a director, and vice president of the institution, and aa such one of those intrusted to sell the real estate of the bank, which objection was sustained. W's vendee thereupon filed a billto have the trasaction set aside, his mortgage delivered up and discharg- ed, and the money paid by him on account o'? the purchase, and ex- mil. ee ot lands, prior to le contract, the ven- t in default of pay- ale. Gait V. Busk, vendee for a portion sendee a letter can- lied the ooniraot he leron v. Bradburry, lents — Costs. tract for Bale of real notwithstanding in- the purchase money, } willingness to per- but that a good title mrohase money, and eference as to title, ze a good title. On lal injunction to re- tmount of purchase brm a charge on de- dant should pay the owance in respect of kman, 9 Grant, 255. certain lands from laser for the greater being effected with lots for the purpose s laid out running purchaser of one of chase on the ground s vendors, the Bank the institution, and estate of the bank, ireupon filed a bill to ired up and discharg- le purchase, and ex- EQUITY DIGEST. 653 pended for taxes and improvements, re-paid to him with interest, There being no evidence of any act of the vendee confirmatory of the purohate after he became aware of this defect in the title, the Court decreed the relief asked, with costs. Brunskill v. Clarke, 9 Grant, 430. 11 — Principal and agent — Costs. The defendant was a trustee under the will of P for the sale of the property in question. In 1834 a friendly suit was instituted in England, (where the trustees and all the parties interested under the will resided,) for the execution of the trusts of the will, and a decree was made for the appointment of a receiver, and the sale by him of the testator's lands in Upper Canada. A receiver appointed in this suit having died, a considerable period elapsed before another was ap- pointed ; during this interval the Canadian solicitors for the estate con- tinued to sell the lands and manage the property as theretofore, under authority of the trustee. While they were so acting the plaintiff applied to them to purchase theland'in question ; a clerk of the solici- tors who attended to the business of the estate had been authorised to buy a few lots for himself at the prices at which they were for sale to others, and, acting upon the strength of this general authority, he, without their knowledge, entered into a contract in his own name and behalf with the plaintiff, for the sale of a lot at £250, and gave the plaintiff his own bond for a deed, and received from him the pur- chase money. The plaintiff supposed the clerk was acting for the defendant, and was authorized to act for him. The clerk sometime afterwards entered in the solicitor's book of sales, and subsequently in an account transmitted to the defendant, a sale of the lot to anoth- er person at £150, and charged the plaintiff with that amount as assignee of the pretended purchaser. A deed of conveyance to the plaintiff reciting a sale to him at £150 was prepared by and under the directions of the clerk, and transmitted by the solicitors, with other deeds, to the trustee for execution, and retained by the latter for some time, but was not executed. Held, that there was not any contract which this Court could enforce against the trustee, but as a suit was to some extent necessary to ascertain the truth satisfactorily, and the same was rendered unnecessarily expensive by the unquali- fied denial of the defendant that the solicitor had any power to sell lands, the Court on dismissing the bill refused the defendant his costs. Ratz V. Tylee, 11 Grant, 342. 12 — Injunction. Where vendors had not furnished an abstract of title, notwith- ¥»'; Ifsx^^ t!ll "''^ i2' 654 EQUITY DIGEST. standing repeated notices, and had at length brought an action at law on a note given by the purchaser for part of the purchase money, the purchaser filed a bill alleging that by reason of the delay the contract was at an end, and praying an injunction to stay the suit at law. The vendors failing to justify their neglect, the Court granted the injunction. Walton v. Armstrong, 11 Grant, 379. 1 3 — Injunction — Lien. The plaintiff sold woodland to the defendants on credit, and the agreement stipulated that any cord wood or timber removed from the premises by the defendants should be paid for at specific rates, if the plaintiff should demand such payment, the sums so paid to be cred- ited to the defendants on instalments due or to become due. The defendants cut a quantity of cordwood and were removing it before making the stipulated payments. Held, that the plaintiff, as ven- dor, had no lien on the cordwood, and was not entitled to restrain the removal of what had been cut, but granted an injunction restrain- ing any further cutting. Smith V. Bell, 11 Grant, 519. 14 — Defence at laiv — Costs. Upon a contract for sale of land the purchaser was let into pos- session, the vendor instead of complying with his vendee's demands for an abstract of title, instituted proceedings in ejectment, so as to compel payment of the purchase «noney, and the purchaser defended that action and did not proceed in this Court until the vendor had recovered judgment. On investigating the title it was found to be bad, the Court, although it gave the purchaser relief so far as res- training the proceedings in ejectment, refused him his costs of his defence at law, but gave him his costs in this Court. Winters ». Sutton, 12 Grant, 113. 1 6 — Equitable execut ion — Lien. W had an interest in land as vendee, but had made default in paying the purchase money and otherwise. The plaintiff B and one H had executions in the sheriff's hands on judgments recovered at law against W, H's execution having priority. The plaintiffs B and D, (the latter having the control of H's execution,) severally inquired of the vendor whether if he purchased at sheriff's sale the vendor would give him the benefit of the contract, and each received a favorable answer. The defendant D became the purchaser at sher- iff's sale, at a fair price, meanwhile the vendor had brought an action of ejectment to put an end to the original contract, and after the EQUITY DIGEST. 666 aght an action at e purchase money, 1 of the delay the to stay the suit at the Court granted 379. n credit, and the r removed from the specific rates, if the paid to be cred- become due. The removing it before e plaintiff, as ven- mtitled to restrain injunction restrain- nt, 519. r was let into pos- vendee's demands ejectment, so as to purchaser defended til the vendor had it was found to be elief so far as res- m his costs of his !ourt. Winters v. had made default he plaintiff B and idgments recovered 'J'he plaintiffs B cecution,) severally it sheriff's sale the and each received c purchaser at sher- d brought an action xact, and after the sheriff's sale executed a writ of habere faciaa possessionem, but labsequently accepted D as the assignee of the contract, and re- ceived payment from him of the arrears without objection by B. Two years afterwards, B, who had kept alive his execution against W'b land, filed a bill against D claiming that he, B, was entitled to a lieu on the interest acquired by D in the land under his agreement with the vendor. Bill dismissed with costs, Burnham v. Dennit- tautiy 11 Grant, 490. Affirmed on re-hearing, see S. C, 12 Grant, 135. 16 — Mortgage — Duty of iJurchaser as to vendor's mortgage. The purchaser of an estate subject to his vendor's mortgage is bound to indemnify the vendor against such mortgage debt. Roberta V. Rees, 4 U. C. L. J, 17 — Specific performance — Covenant foY further assurance — Jurisdiction. A purchaser having paid all his money, filed a bill under the cov- enant for further assurance, to compel his vendors to pay off a mort- gage disclosed at the time of sale. Held, that the bill was properly filed, although the purchase money had been paid, and there was no ooncealment of the incumbrance. Held, also, that under a covenant for further assurance, a purchaser has a right to require the removal of incumbrances created by his vendor. Tripp v. Griffin, 5 U. C. L. J., 117. 18 — Parol evidence — Specific 'performance. Where a vendor files his bill for specific performance, against a purchaser on a contract partly performed, the evidence of the contract must be clear and unmistakable, and the acts done must be such as cannot be referred to any other than the contract as alleged, nor done with any other intention than in part performance of such contract; Sexton V. Shell, 6 U. C. L. J., 94. 19 — Specific performance — Election of remedy — ^ aiver. A vendor sued upon the covenants of a bond, and obtained judg- ment, he then filed a bill setting out the agreement and praying fore- closure. Held, that this bill was improperly formed, but that he might amend on payment of costs. Qucere. Was his action at law a wavier of his remedy by specific performance. McAvoy v. Simpson, 6 U. C. L. J., 94. 20 — Who should prepare the conveyance. Spragge, V. C— Where a purchaser, rueing his bargain, sued at law to recover back bis purchase money, alleging, but not shewing, IMAGE EVALUATION TEST TARGET (MT-3) A. |gr 1.0 ^K* I.I Ittitt 2.5 2.2 2.0 L25 iU 11.6 1^1 6" FhologFaphk; Sdeioes Carporatian 23 W»T MAM STRUT WnSTM,N.Y. 14SI0 (7U)I73-4S0I 4fS f! 666 EQUITY DIGEST. .11 I' & *'! that the vendor oould not make a title, and the questiod arose wheth- er it was the duty of the vendor or purchaser to prepare the convey, ance, under a contract which provided that the vendor should convey *' at the expense, costs and charges" of the purchaser, the Court of law having held that the duty was that of the vendor. The learned Vice-Ohancellor enjoined the proceedings at law, until the hearing on the authority of Hawking v. Kemp, 3 East, 410 ; Seaward v. Wil- cox, 5 East, 198, and the practice in England, where the conveyance is prepared by the purchaser. Watt v. Parker ^ Cooper's C. & P. R, 33. 2 Cham. Bcp., 33. 21 — Twenty years' possession. Where a vendee takes possession of the property with the know- ledge and concurrence of the vendor, and pays his purchase money, he is to be regarded as in possession of the whole lot, and not merely of such part as he may actually occupy and improve, and after twenty years' possession by him and his successors, the title of the vendor will be extinguished. McKinnon v. McDonald, 13 Grant, 152. 22 — Interest Where a purchaser takes possession before conveyance, he is liable to interest from the time of taking possession, and the liability is not limited to a perion of six years. The Great We$tem Railway Co. V. Jonet, 13 Grant 355. 23 — Inquiry as to title. A purchaser, before the time appointed for the completion of a con- tract for the sale of land, and while the investigation was in progress, went upon and cleared a portion (about two or three acres) of the land sold, and sowed the same with turnip seed, which it was neces- sary to do or lose the whole season, he did not however harvest the crop, but abandoned the possession entirely io consequence of objec- tions to the title not being removed. Held, no wavier of the purchas- er's right to an enquiry as to title. Mitcheltree v. Irwin, 13 Grant- 637. Sek Aoreimknt, Rbbcission of — Deed — Infants — Injuno- xioN— Lien — Re-hearing Speoifio Perforhanoe— Ven- dor's Lien. VENUE. Changing. ' On an application to change the venue it was objected, that publi' cation having pawwd. the motion should have bean to open publication, EQUITY DIGEST. 657 estioii arose wheth- trepare the convey* ndor should convej laser, the Court of idor. The learned intil the hearing on I ; Seaward v. Wil- lere the conveyance loper's C. & P. B,, Ly with the know- is purchase money, lot, and not merely 'e, and after twenty itle of the vendor 13 Grant, 152. 'eyance, he is liable the liability is not item Railway Co. lompletion of a con- on was in progress, hree acres) of the rhich it was neces- owever harvest the isequence of objec- vier of the purchas- . Irwin, 13 Grant- JFANTS InJUNO- roRMANOi— Vbn- )jeoted, that publi' 9 open publioatioU) and to amend the bill by introducing words, changing the venue— a similar case having been mentioned as heard before V. C. Sprag"e in which he gave eflFect to the objection, but allowed a new inotiou°to be made at once without notice, Mowat,V. C. followed the same course, and on a new motion being made, granted the application on terms. Baxter v. Campbell, Cooper's C. & P. R., 39. 2 Cham. Rep., 39. See Specific Performance. VERBAL AGREEMENT. See Dower. VESSELS. See Injunction. statute 20 Vict,, 1. Purchaser under decree, 2. Infants' proiierty, 3. Granted ex parte, 4. VESTING ORDERS. WlitTO notici! required, 5. I'liviiitilf puivliasinjf, ii. ■ ni^oo futitled to, 7. iMoi-l- I— Statute 20 Vict. In every case in which the Court has authority to order the execu- tion of a deed, conveyance, transfer or assignment of any property, real or personal, the Court may make an order or a decree vcstin" such real or personal estate in such person or persons, and in such manner, and for such estates as would be done by any such deed, conveyance, assignment or transfer if executed ; and thereupon the order or decree shall have the same eflFect, both at law and in equity, as if the legal or other estate or interest in the property had been actually conveyed, by deed or otherwise for the same estate or interest, to the person in whom the same is so ordered to be vested, or in the case of a chose in action, as if such chose in action had been actually assigned to such last mentioned person. 20 Vict,, ch. 56, sec. 8, Con. Statute, U. C, 59. 2 — Purchaser under decree. A party purchasing under a decree of the Court has a right to call for evidence, shewing that persons whoso interests were intended to be disposed of were alive at the time of such sale, before accepting title by means of a vesting order. And juccrc, whether under any circumstances the Court would compel a purchaser to accept title by a vesting order instead of a conveyance. (Slakr v. Fiskin, 1 Cham. Rep., I. 6 U. C, L. J., 261. 4k fn I; it. 658 EQUITY DIGEST. 3 — Infants' fvoperty. Where the property of infants has been sold under order of Court, and the purchaser applies for a vesting order, notice need not be given to the infants. Boulton v. Stegman, 1 Cham. Rep,, 199. 4 — Granted ex jjarte. Where a party to a suit is directed w decree or order to execute a conveyance to another party, but cannot be found after due dili- gence, and the deed therefore cannot be tendered for execution, a vesting order will be granted etc parfe. McNair v. Simpson, 1 Cham. Rep., 299. 5 — Where 'notice required. A motion to dispense with payment of purchase money, (and for a vesting order,) in favor of a purchaser under a decree, who is also one of the plaintiflfs, requires notice to be served on the mortgagor where he has appeared by solicitor. McMaster v. Kempshall, 1 Cham. Rep., :i29. 6 — Plaintiff hecominy purchaser. This was an application for a vesting order on behalf of the plain- tiff, who was also the purchaser of the land and premises sold in the cause. No objection was made to the action by any of the defend- ants, but it was thought that in such a case a vesting order could not be granted, inasmuch as the Court could not compel the defend- ant to execute a conveyance to the plaintiff. Several cases were cited in which a vesting order had been made in favor of plaintiff, who ''as also purchaser of lands sold in such suits, but it was considered that such orders were improperly granted, because the facts had not been fully set before the judges before whom the applications were made. Mowat, V. C. Bowman v. Fox, 1 Cooper's C. & P. R., 53. 2 U. C. L. J., N. S., 302. 7 — Mortijagee entitled to. A mortgagor who has in the course of a foreclosure suit duly re- deemed the property, is not obliged to accept a simple discharge of the mortgage, but may, at his option, have a vesting order of the property. Ellis v, Ellis. 1 Cham. Rep., 257. VIEW, (OBSTRUCTION OF.) Seb Injunction. Sei Deyibk, VOID DEVISE. der order of Court, e need not be given p., 199. ■ order to execute nd after due dili- sd for execution, a Simpson, 1 Cham. e money, (and for decree, who is also on the mortgagor V. Kempshall, 1 behalf of the plain- remises sold in the iny of the defend- esting order could compel the defend- ral cases were cited f plaintiff, who "as ras considered that facts had not been ations were made. ; P. R., 53. 2 U. osure suit duly re- imple discharge of isting order of the See liEASE. EQUITY DIGEST. VOID LEASE. 659 VOLUNTARY BOND. See Agreement — Specific Peepormance. VOLUNTARY CONVEYANCE. Agreement, 12. Confidential relationship, 5. Devise upon conditions, 7. Good as against malier, 2. Liability of grantor for rents and profits, 6. Onus ri proof, 5. Statute 13 Eliz., 3. Trusts, 4. Undue influence, 8. Where there are two voluntary convey- ances, 1. Where held deed of gift, 9 Not valid without independent advice, 10. Void against debts, 11. 1 — Wliere there arc tivo voluntary conveyances. Where there are two voluntary settlements, the Court will at the suit of those interested under the first, set aside the subsequently ex- ecuted settlement, and it is no objection to relief that Courts of law would give effect to the first against the second. Houlding v. Poole, 2 Grant, 685. 2 — Good as against the maker. The plaintiff made a promissory note in favor of his father-in-law, which the bill alleged had been given with the express understanding that the principal should never be called in by the payee, notwith- standinf; which an action was afterwards brought by him on this note, and judgment recovered. The plaintiff thereupon executed a convey- aiice of his real estate to a third party, in order to defeat the judg- ment at law ; and a bill was afterwards filed to have the grantee declared a trustee for the plaintiff, or for payment of the alleged purchase money ; a demurrer thereto for want of equity was allow- ed. Rosenburyer v. Thomas, 3 Grant, 635. 3— (Sf atiUe 13 Elis. In a suit brought to set aside a voluntary conveyance as void against creditors, it lies upon the parties interested in supporting the deed to shew the existence of othtir j)rop?rty in the debtor available to bis creditors ; but in such a case the parties having omitted to give such evidence, the Court at the hearing diiected an enquiry be- fore the master as to the indebtedness of the grantor at the date of the conveyance. Brown v, Davidson, 9 Grant, 439. 4 — Trusts — Onus of proof. A deed having been executed by a husband and wife, under such oircumstances as to make the conveyance voluntary; the Court held \l': 660 EQUITY DIGEST. that tho onus was on the grantee of proving that the grantors un- derstood the nature and e£fect of the deed, and as it did not appear to have been explained before being executed, the deed was held in" valid. A deed purporting to convey land to M, was executed by the plaintiiF under circumstances that disentitled the grantee to hold it as a valid deed entitling him to the beneficial interest in the prop- erty. The grantee (M) having afterwards sold and conveyed the land to 11, receiving part of the purchase niuney, and a mortgage for the balance. Held, that on confirming the title of the purch&ier (R) the plaintiflf was entitled to the balance of the mortgage money from 11, and to a decree against M for what M had received. Fraser v, Rodway, 11 Grant, 426. Affirmed on re-hearing, S. C, 12 Grant, 154. 5 — Confidential relationship — Onus of proof . To sustain a deed of gift to a person standing in a confidential re- lationship to the donor, the donee must establisli by clear evidence that the nature and effect of the deed were fully and truly explained to the donor, that he perfectly understood them, that he was made alive by explanation and advice ^to the efieoi. and consequences of ex- ecuting it, and that the deed was a willing act as executed by the grantee to hold it iterest in the prop. 1 conveyed the land I mortgage for the the purchaser (R) rtgage money from iceived. Eraser v. in a confidential re- li by clear evidence md truly explained , that he was made consequences of ex- pa his part, and not which the confiden- to employ, other- V. Seney, 11 Grant, fits. ;eable, at the suit of ite, subsequently re- might have been so agreement whereby if natural love", the demanded. Held, Tfards, by deed, con- having commenced against the action, ic assignee moved to ined, and that it wai ■'s Bubscquent trans- fer for value under 27th Eliz. ch. 4, but the application was under the circumstances refused. Leech v. Leech, 11 Grant, 572. 8 — Undue injluence. It is essential to the validity of a deed o gih in favor of a person occupyinej towards the grantor a relation of trust and confidence that the grantee should shew that the grantor had competent and inde- pendent advice in the transaction. When a deed of gift is objection- able according to the doctrines acted upon in equity to guard against undue influence, the mere circumstances that the grantor had previous- ly expressed an intention of at some time giving the property to the grantee is not a sufficient ground for upholding the deed. A deed in favour of a thitd person, obtained through the in- fluence of one occupying a fiduciary relation to the grantor, and not giving him the advice which he ought to have received, cannot be sustained. Dawson v. Dawson, 12 Grant, 278. 9 — Wliere held deed of (j'lft. A conveyance by a man 84 years of age, of his farm, which was al- most his only means, to his married daughter, subject to a provision that she shonld properly maintain him, but with no personal liability on the part of any one to see to his maintenance was held to be a deed of gift, and only sustainable by the same evidence as is necessary in equity to maintain a deed of gift. Beeman v. Knapp, 13 Grant, 398. 10 — Not valid luithout Independent advice. A like deed made two days afterwards to the grantor's son, who had managed the farm for some years along with other farms of his own ; the consideration for the conveyance being the son's personal bond to maintain the grantor and his wife during the rest of their lives, without any other security. Held, not valid unless shewn to have been made freely and voluntarily after independent, and proper advice. Held, .ilso, that such a conveyance, unless made freely and voluntarily after independent and proper advice, was not made good by evidence of a verbal agreement several years before that the son should work the farm and maintain his father and mother in consider- ation of the property being left to the son by will ; a deed and will being essentially different, lb. 11 — Void against debts. Voluntary conveyances arc void against existing debts, which are thereby defeated or delayed, whether the conveyances were fraudu- lent or not. Irtoin v. Freeman, 13 Grant, 465. 1 I 662 EQUITY DIGEST. •i,i -'^! 'I ''Hi! ill 12 — Agreement An agreement may be allowed to stand, although a yolnntary deed arising ont of it may be set aside. Deletdemier v. Burton, 12 Grant, 569. See Trusts — Trustee and Cestui Que Trusts, VOLUNTARY DEED. See Voluntary Conveyance. VOLUNTARY SETTLEMENT. Trustee, 3. btututo of limitations, 4. Statute 13 Eliz.,1 Trustb 2. 1 — Statute 13 Eliz, A person against whom several executions for small amounts ,vere in the sheriffs hands, and whose chattel property, when sold by the sheriff, was not sufficient to pay those executions, made a settlement of the only real estate he had in trust for his wife and children. ffeldy that the settlement was fraudulent and void under the statute 13 Eliz., ch. 5. Goodwin v. Williams, 5 Grant, 539. 2— Trusts. - A having received a large stim for the sale of a secret imparted to him and his wife by a relative of the latter, bought with part of it a farm of which he took the deed in his own name, and afterwards gave instrustions for the preparation of a settlement of the property for the use of himself for life, with remainder to his wife and child- ren ; but the settlement was not prepared or executed foi a year. Shortly before it was executed be had entered into a hazardous busi- ness, which proved disastrous ; all his means not sufficing to pay its losses. The farm was the only real estate he had in the province. ffeld, at the suit of a creditor whose debt accrued before the settlement that the settlement was void as against creditors. When a debtor makes a voluntary settlement under circumstances that render it void as against creditors, the grantee is not entitled as being in effect a surety for the debt to hold the property exonerated from the debt in consequence of time being given to the debtor, or of any like transaction that would free a surety from his liability in or- dinaiy cases of suretyship, lb. 3 — Trustee. At and before making a voluntary settlement of real estate, the settlor stipulated verbally with the trustee that the settlor's son i» EQUITY DIGEST*. 663 b a voluntary deed Burton, 12 Grant, ttUSTS, IT. ions, 4. small amounts -vere , when sold by the , made a settlement wife and children, id under the statute ,539. a secret imparted to ht with part of it a me, and afterwards jent of the property his wife and child- ixecuted foi a year, to a hazardous busi- sufficing to pay its ad in the province, jefore the settlement rs, mder circumstances ee is not entitled as property exonerated to the debtor, or of n his liability in or- of real estate, the .t the settlor's son should receive all moneys receivable under it, and should acoumn- late and dispose of the same, by investment or otherwise, and that the trustee himself should have no trouble or concern in the matter. The son accordingly received the rents for several years, and without knowledge of the trustee, misappropriated them. Held, that the trustee was not liable to make good the loss. Mitchell v. Rickey , 12 Grant, 88. 4 — Statute of limitations. Where a debt, the remedy for which is barred by the statute of limitations, is acknowledged by the debtor, and judgment is recover- ed therefor, a voluntary settlement made before such acknowledg- ment and before the remedy was barred Is void as against a/, fa. issued on the judgment. Jrioin v. Freeman, 13 Grant, 465. VOLUNTEER; The Court will not, in favor of a volunteer, order the due execu- tion of an instrument informally executed, although the relief would be granted in favor of a purchaser for value. Ross v. Fox, 13 Grant, 683. See Infants. WAGES. WAIVER. See Appeal— Irregularity — Vendor and Purchaser. WAIVER OF TITLE. See Spboipio Performance— Title. WAREHOUSE-MAN. Receipts of. Where a warehouse-man had delivered warehouse or transfer re- ceipts to a party for one thousand barrels of flour, and afterwards delivered out some portion thereof at the instance of the party who had left it in his custody, on the understanding that the quantity so delivered out should be made up by other flour to be brought to his warehouse, and it appeared that such a course of dealing was in ac' oordance with the usage of the trade ; the Court refused an injunc- tion to restrain the delivery of flour subsequently brought by same party to the warehouse, although such latter flour had been assigned 664 EQUITY DIGEST. bona fide to the plaintiff, who liad made advances thereon after it was stored, and although such flour had not been manufactured at the time of giving the warehouse receipts. Wilniot v. Maitland, 3 Qrant, 107. Skb Receipt— Injunction— Vendor and Purchaser. WARRANT. See Pleading. WASTE. Cutting timber, <6c. Qucere. Whether the doctrines applicable in England between termor and revisioner, in respect to felling timber, can prevail as to an estate in this country, the beneficial enjoyment of which is ordi- narily attained and can generally be obtained only through the de- struction of s;rowing timber : and whether the doctrines of the common law, as to growing timber, can be applied in all their extent to forest lands in thb country. Chisholm v. SJieldon, 1 Grant, 318. Where injury trifling. Where an injunction to stay waste was continued at the hearing, and it appeared that the extent of the waste committed, did not ex- ceed $20 ; the Court refused to direct any account, and left the amount of the waste to be dealt with in any action for mesne profits which the plaintiffs might be advised to bring. Raven v. Lovelasi, 11 Grant, 435. See Injunction. WATER COURSE. See Injunction — Specific Performance. WAY. See Right op Way, WELCH MORTGAGE. See Mortgage. See Dower. WIDOW. EQUITY DIGEST. 665 I thereon after it manufactured at lot V. Maitland, 3 'CBOHASKR. Wife of inortffajor need not sign convey- ance under Uoorec for sale, 8. 1 England between r, can prevail as to b of which is ordi- aly through the de- ,rines of the common heir extent to forest Grant, 318. med at the hearing, nmitted, did not ex- Bcount, and left the ion for mesne profits Raven v. Lovelast, WIFE. Eiiultable Inheritance, 1. Lands of, 2. 1 — Equitable inheritance. Semhlc. Wife entitled to a provision out of her equitable inher- itance, the husband not maintaining her, and his assignee seeking the aid of the Court to make her interest available. Gillespie v. G rover 3 Grant, 558. 2— Lands of. Quaere. Whether a deed by a husband alono of his wife's lands will operate as an effectual transfer of tho husbands marital rights therein. WallU v. Burton, 5 Grant, 352, %—Wife of mortgagor need not sign conveyances under de- cree for sale. If the wife of the mortgagor joins in the execution of the incum- brance, and a sale of the mortgaged estate is afterwards effected un- der a decree of the Court made in a cause instituted upon such mortgage, it is not necessary for her to joiri in the conveyance to the purchaser. Moore v Skinners, 1 Cham. Rep., 59. See Alimony — Husband and Wife— Pleading. WILD LAND TAXES. Laches, 0. Mortsfasjee purchasing, 10. Mode of assessing, 11. Description in warrant, 12. Dower, 1. Tenant for life, 2. Settini; aside Hale for, 3, 4, 8. Du>,y of sheriff, 3, (3), 4, 6, 7. Pr;5venting competition, S. l—Do^ver. A sale of land for taxes, under the wild lands assessment act, de- stroys the right of the widow of the owner to dower. Tomlison v. mU, 5 Grant, 231. 2— Tenant for life. Semble. A tenant for life of the whole estate of the testator consisting of an improved farm, and of wild lands, is bound to keep down the taxes upon the whole. Biscoe v. Vanliearle, 6 Grant. 438. 3 — Setting aside sale for. (1) In 1851 a party purchased 50 acres of land upon whioh he settled^ and paid the assessments for 1852 and subsequent years; but the assessment of 1851 had not been paid, for the amount of which (£2 Is. 9d.) 24 acres of the property were sold in 1859 by the sheriff, under the warrant of the treasurer for the wild land assess- ment, when the same were purchased by one of the bailiffs in the em- I ploy of a former sheriff. The portion sold was worth £7 10s. per 4l 'I I' 'I 666 teQUITY DIGESt. acre. Although there was not any direct evidence of conibination among the audience to prevent competition, still their conduct wai such as to lead to that opinion ; the Court, under the ciroumstancei, following the cases of Massiogbord v. Montague, (9 Grant, 92), and Henry v. Burncss, ^S Grant, 345), set the sale for taxes aside upon payment of the amount which would have been required to redeem the land within the year, and interest since that time, or the amount might be applied in part payment of the amount due upon a murto whether there should be a sale at all or not. Rowscll v. Winstanley, 7 Grant, 141. 12 — Revoking agreement for sale by. A testator directed all the rents and income of his estate to be di- vided between his widow and children, one share to each of the child- ren and two to the widow, her heirs and assignees for ever, and proceeded as follows : I hereby di 'cct that each child on attaining his or her majority, receive his or her share ("after expense of proper re- pairs are deducted] for his or her solo use. Hdd, that this gave the widow an absolute interest in uU his estate, and that a subsequent devise over of her share in the event of her dying intestate was re- pugnant and void ; and that the children were entitled to the income only on attaining twenty-one; but the testator by the same will di- rected that no real estate be scld without the unanimous consent and direction of all ray executors, and also gave them power to buy and selli give and take titles in fee simple, in as full a manner as if he was living, and appointed his widow executrix, and F and H execu- tors thereof. F and H renounced probate, and the widow alone proved the will. Held^ that the powers oouferred by the will were ^BUr EQUITY DIGEST. 673 ughter for life, re- hter, and her hus- his ■widow with a ae during her life, 5 executors should duty of supplying a the parties occu- in default of their not occupying the Grant, 31. personal estate to 3ui, or the survivor of such survivor to . farms, lands, &c., auction or private )r him should seem ouey to arise from naent or real secur- power or^trust was also as »o whether instanhi/, 7 Grant, is estate to be di- I each of the child- lees for ever, and Id on attaining his pense of proper re- that this gave the that a subsequent cc intestate was re- itlcd to the income the same will di- imous consent and power to buy and a manner as if he id F and H execu- the widow alone 1 by the will were personal, and could not be exercised by the widow alone ; and that being personal they had become extinct, and that the division of the estate having been postponed only for the sake of the powers that its distribution was accelerated by their extinction. Held, also, that the widow, under the devises mentioned, was put to elect whether she would take under the will, or claim her dower. Kerr v. Ldthman 8 Grant, 435. ' 13 — Construction of. A testator bequeathed to two of his grand-children the sum of £500 each ; by a subsequent clause of his will, he directed certain bonds and securities to bo realized and invested to meet two annu- ities charged on his estate, and after these annuities " should cease to exist, then, and in that case, the money so to be invested to raise the sum to pay these annuities, shall be divided equally among my child- ren then living, share and share alike, or in case of any of their deaths, then to their children per stirpes and not per capita." At the time of making his will, his daughter, the mother of the two leg atees, had been dead for some time ; held, that the children of such deceased daughter did not take any interest in the residuary estate. Taylor v. Riduut, 9 Grant, 35G. 14, — Conatruction of. A testator by one clause of his will devised certain of his lands to his son absolutely, and in a separate clause provided, •' and in case my son Henry shall die without issue,*! heieby devise, &c., all my real and personal estate hereinbefore devised to him to the lawful is- sue of all my brothers and sisters, whether said brothers and sisters be living or dead at the time of Henry's decease." Held, that the con- ditions had not the effect of cutting down the prior absolute devise to the son. Re Babcock, 9 Grant, 427. 15 — Defeasance clause in. A testator after appointing executors and expressing full confidence in them " provided that in case any of the legatees offer obstruc- tions to the proceedings of my said executors in the fulfilment of the powers hereby conferred", then that such persons should suffer the penalty of ♦' being debarred of all claims to any part or portion of my estate under any pretence whatsoever, in the same manner as if he, she, or they had actually piedeceased me without issue, and such shall be and are hereby declared to be debarred therefrom accord- ingly, any law or practice to the contrary notwithstanding." Held, in an administration suit by one cf the legatees against the executors 4m rii. 674 EQUITY DIGEST. '. ki i I fi Mi t".' I :'; V. I! \'sl on the application of other legatees made parties in the master's office, that an inquiry might bo properly directed whether any of the legatees had forfeited his or her share under the above provision. The original decree not containing such a clause of inquiry was a- mended in that respect on motion after the master's report. Millar V. McNaughlon, 9 Grant, 545. 16 — Settliifj aside. « The validity of a will established, notwithstanding witnesses swore that the testator was not in a fit state to make a will, when the same was executed ; the evidence of the medical attendants, and surround- ing circumstances, tending to shew that the testator was of sufficiently sane and disposing mind to.understund the meaning and eflFect of the devises in his will. Menz>es v. Wngh(, 9 Grant, 574. The principle of what is a sufficiency sane and disposing mind and memory treated of and acted on. V 17 — Conslravlloii of—Exeniptlon of personality from pay- ment of debts. Where a testator directed his debts to be paid out of his "estate," and then bequeathed to his widow an annuity of a hundred pounds, to be paid out of the proceeds of his "estate," and also bequeathed to her all his personal property ; and then directed that the whole of liis property should be sold by his executor at the death of his wid- ow, and finally empowered his executor to sell such portions of his property as he might think best, for the purpose of liquidating any just claim due by the testator, at any time that the executor might find it necessary to do : held, that the debts were charged upon the real estate as the primary fund. IlarroM '■ ''''d.lis, 10 Grant, 197. 18 — Settinrj aside — Undue injlm:, — The mere fact that influence was cacr.is" ;.>v a wife or other per- son over the mind of the testator, is not of itself sufficient to invali- date the will, such influence must amount to a control over his mind, subjecting his mental will to the desire of another, so that the docu- ment executed as his will is not in reality his will but that of another; the question in such a case is, in what sense is the document the will of the testator. Where, therefore, the testator, an infirm man, 82 years of age, within the year preceding his decease made four wills, the two last on the 27th July and 8th September, and on the four- teenth of the same month died, and it was shewn that for some time he had been in a state of physical weakness, and suffering from disease of the brain ; the medical and other testimony however going to ei- EQUITY DIGEST. 675 ies in tbe master's whether any of the e above provision. 5 of inquiry was a- t's report. Millar ing witnesses swore will, when the same lanls, and surround- or was of sufficiently ling and effect of the t, 574. disposing mind and malUy from pay- out of his "estate," f a hundred pounds, id also bequeathed to cd that the whole of the death of his wid- mch portions of his e of liquidating any the executor might e charged upon the Uh, 10 Grant, 197. / a wife or other per- f sufficient to invali- lontrol over his mind, or, so that the dncu- 1 but that of another; the document the vill •, an infirm man, 82 lease made four wills, er, and on the four- n that for some time uffering from disease lowever going toes- tablish that at the time of the execution of the will he was of a suf- ficiently sound and disposing mind to make a will ; that the will of 27th July was made by him while absent fioin his house, the lattv.,' while there, and under the control of his wife, who, it was shewn, had him entirely under subjection, and by whom the instrucitioas for this will were given, and in whose presence the document was pre- sented to him for execution ; the evidence also shewing that for a lon^ time he had been unable to resist her views with regard to any mat- ter of business, and there being nothing to indicate any desire on his part to change the disposition of his estate made by the will of July ; the Court, upon a bill filed for that purpose, set aside the will of September, as having been obtained by the exercise of undue influ- ence by the wife, and established th it of July as being the proper last will of the testator, and ordered the widow, who was largely ben- efited under the will of September, to pay the costs of the cause. Waterhouse v. Lee, 10 Grant, 170. 19 — Construction of — Sale hj e.K'cutors to legatees. P having an estate estimated at £t)J,000, by will, provided that after payment of the debts and certain pecuniary legacies, a sum suf- ficient to secure an annuity of £5()0 per annum, during her life, should be invested for the use of the widow, that £5,000 should be in- vested for each of his four daughters, and that the residuary estate should be divided equally among the testator's three sons J, P and W, when W the youngest should att lin majority ; and in case the value of the estate should not prove sufficient, after providing for the widow's annuity, and the daughters' portions, to produce £7000 for each of the sons, then a rateable reduction should be made from the share of each child. The testator also directed that after the decease of his wife, the sum set apart for Kocuriiig her annuity should be equally divided amongst his chiMren. The testator by his will pro- vided, that in case his sons desired to continue his business, that his executors should afford them facilities for so doing, and should sell to them at a fair valuation, the store and stock in trade. Stock was being taken at the time of the testator's death, and the goods in hand were, in accordance with his custom, valued by adding 75 per cent to their sterling price, at the sum of £13990. The sons J and P having agreed to continue the flither's business, were charged in the books of account with that sum. The estate proved to be of only half the val- ue at which it was estimated at testator's death, so that there was in- safficient, without taking into account the value of the stock, to real- iie the widow's annuity, and the portions for the daughters. The 1' I I' .11 676 EQUITY DIGEST. sum at which He stock was valued, was proved to be about twice its actual value, and evidence was adduced proving that no actual con- sent or agreement had been given by J and P to be charged with it at its cstiuiated value. Held, that there had been no absolute sale of stock to them, and that they were only chargeable with it at its act- ual value ; that the sum required to be set apart to raise the annu- ity for the widow was such a sum, as being invested at 6 per cent per annum, the legal rate at the time of testator's death, would pro- duce £500 per annum, and that the principal sum was under the provision distributable, on the death of the widow, among all the tes- tator's children. Paterson v. McMasier, 11 Grant. 337. 20 — Construction of. Where a testator, by his will, gave the residue of his real and per. Eonal property to his executors urd trustees in trust to sell the same, and after satisfying certain charges to expend and apply for the main- ten ance and education of his minor childien, such sums as they thought necessary for this purpose, and in subsequent parts of the will provided that such children were to draw or be entitled to equal shares of his estate, and that each should receive his or her share of the proceeds of the real estate on marrying or arriving at maturity, and that, until then, the shares of such children should be invested, and paid out as they require the same, as aforesaid. Held, that their maintenance and education were a charge on their own shares only, and not on the whole residue. Gibson v. Annia, 11 Grant, 481. 2 1 — A demnpt ion. A testator bequeathed to W L £1,500, "due to me by R C, and secured by mortgage." After the making of this will, and in the testator's life-time, R C sold to one H the property mortgaged, and the testator, to facilitate the sale and secure the debt due him, took from H a mortgage of this property and other property, and a cove- nant to pay the amount, retaining in his poBsesiion the mortgage from R C, under which he he'd the legal estate in the land, and the bond originally obtained from R C for payment of the debt. The testator died without in any way altering his will in regard to this legacy. Held, that the legacy was not adeemed. Loring v, Loring^ 12 Grant, 103. 22 — Words of devise — What a nujlicient seal. A testator, by his will, duly made and published in the year 1832, gave certain lands to hia son J D, " for his children", adding in the oonoluding paragraph " any other lands I may now or hereafter hare -A be about twice its bat DO actual con> be charged with it in no absolute Bale le with it at its act- : to raise the annu- i at 6 per cent per death, would pre- lum was under the , among all the tes- t. 337. at' his real and per- ist to sell the same, apply for the main- such sums as they equent parts of the be entitled to equal his or her share of •riving at maturity, should be invested, Held, that their lir own shares only, 11 Grant, 481. EQUITY DIGEST. 677 to me by R C, and is will, and in the rty mortgaged, and debt due him, took roperty, and a cove- ission the mortgage in the land, and the t of the debt. The ill in regard to this Loring v. Loring^ eal. ed in the year 1832, ren", adding in the low or hereafter have « I may add." Held, that the words of devise carried only a life estate, and as to these words that they expressed only a possible intention of the testator at some future time of making a devise thereof. A deed had been duly sij;ned bj the parties, but instead rf any wax or wafer being affixed thereto for seals, slits had been cut in the parchment, and a ribbon woven through so as to appear on the face of the document at intervals, opposite one of which each of the par- •lies to the deed signed. Held, a sufficient execution of the inbkru- ment. Hamilton v Dennis, 12 Grant, 325. 23 — Construction of. A testator, by his will, devised certain lands to his wife for life, *' subject to the conditions of supporting and educating therefrom my children until they are of age, respectively," and after the decease of bis wife, and his youngest child having attained 18 years of age, he devised the same land to his son J L. The widow died, and J L also died before the youngest child attained the age of 18. Held that J L did not take the estate charged with the support or educa- tion of the younger children, nor was it chargeable in the hands of J L with arrears therefor, which had accrued during the life estate of the widow. Perry v. Walker, 12 Grant, 370. 24 — Conslrudloii of — Statute of limitations. A testator bequeathed his personal estate to his executrix and ex- ecutors in trust for the purposes of his will, and he gave to them in the quality of trustees for the use of his son for life, and after his death for the use of his son's children or child, if there should be but one^" tho sum of £1500 due to me by C, and secured by a certain mortgage," &c. Held, that this passed the principal mortgage money £150(1, but did not pass the interest then due, or which should fall due before the testator's decease. Held, also, that the legatee was entitled to claim more than 6 years' arrears of interest, the trust being express, and the statute of limitations therefore not applying to the case. 12 Grant, 374. 25 — Set off — Husband and wife. A father, before his daughter's marriage (in 1857,) wrote a letter to her intended husband saying he would give her £2,500, when she came of age, and one fourth of his residuary estate at his death. In 1858, and before the wife came of age, the father advanced money to the husband for which he took his note, but which he charged iu his led- ger to the joint account of the husband and wife, and intended if the m 678 EQUITY DIGEST. m same was not re-paid to set off the amount against his daughter's share of his estate. Held, in a suit by the wife in the husband's lifetime for administration of the estate, that the executors had a right to set off the advance against the wife's share. Held, that such right was not affected by the fact that the father by his will, made after the marriage, but before the advance, hud directed that any advances he should make were to be deducted from the £2,500. The reason of this provision appearing to bo that the testator did not contemplate making any advances to an amount exceeding £2,500. Held, that such right was not affected by the fact that on a demand being made on the father for the whole £2,500, when his daughter came of age, he in time reluctantly yielded to the demand, not releasing however, or agreeing, or intending to release his right against the husband for his previous advance. Torrance v. Chewetc, 15 Grant, 407. 26 — Construction of — Dower — Devise in lieu of election. A testator, by his will, gave to his wife a life interest in cer- tain portions of his real estate, and also certain annual allowances, both in money and kind, such as to exclude the probability that she . would require any other means for her support ; the rents and profits of the real estate, after payment of such annual allowances, being insufficient to satisfy the widow's claim for dower. Held, that the widow under the circumstances was bound to elect. Where a widow insisted on her right to dower, as well as to the bequests made by the will : the Court allowed her her costs, although unsuccessful in such contention ; the question having arisen from the terms of the will, dower not having been in terms excluded, and it was held to be excluded on extrinsic evidence. The provision for the widow of a testator, and certain legacies being charged upon real estate, which it was apprehended might prove deficient, the legacies, not the provision for the widow, were in such case ordered to be a- bated rateably. Becker v Hqjmmond, 12 Grant, 485. 27 — Disposing mind — Mental capacity of testator. A testator was in an extremely low state at the time of giving in- structions for and signing his will, and died soon afterwards ; but it appeared that he was considered of testamentary capacity at the time, and seemed to understand and approve of the document; -that it was prepared in good faith, in supposed accordance with his wishes and directions, that no question had been suggested as to the validity of of tho will for more than a year after probate j and his widow, to whom he had devised a life estate in part of his lands, died in the in- ^BP^ EQUITY DiGfiSt. 679 st his daughter's in the husband's cutors had a right /, that such right ill, mado after the t any advances be The reason of d not contemplate 500. Held, that mand being made ;hter came of age, •eleasing however, it the husband fur ant, 407. •/It of election. Q interest in ccr- nnual allowances, robability that she le rents and profits allowances, being Held, that the aa well as to the ler costs, although aving arisen from rms excluded, and The provision for charged upon real lent, the legacies, 3 ordered to be a- 85. estator. time of giving in- afterwards; but it pacity at the time, iment;-that it was th his wishes and to the validity of and his widow, to ds, died in the in- terval; the Court sustained the will, notwithstanding some doubts suggested by the witnesses at the hearing as to the mental condition of the testator, and the exact conformity of the will with his wishes. Martin V. Martin, 12 Grant, 500. 2S—Will, construction of— Cumulative legacies— Charge. A testator, by his will, gave il^e residue of his real and personal property to his daughter, the laods to bo held by her in fee tail, and in a subsequent part of the will adds " I wish and desire that my daughter shall make a competent provision for my niece Mrs. Baby, at Hamilton." By a codicil executed on the same day as the will, after making certain alterations in his will, he adds " and I do hereby devise to my niece, Mrs. Baby ,-of Hamilton, the lot containing oae- fifth of an acre, fronting on School street, in the town of Kingston. Held, first affirming the decision of his honour the Vice-Chancellor that the words '♦ I wish and desire," were not precatory merely, but directory, and formed a jharge upon the residuary estate; and held, secondly, reversing the judgment of his honour, that the devise in the codicil of the town lot in Kingston, was cumulative and not sub- stitutional. Baby v. Miller, 1 Grant, E. & A. R., 218. A devise of all a testator's real estate, passes all he owns at the time of his death. Whateleij v. Whateley, 13 Grant, 436. Since re-heard and reversed on re-hearing, (Mowat dissentiente.) See ap pendix " After Acquired Estate." /it^ 2Q __ 29 — Tenant In common. A testator bequeathed certain personal estate to his two sisters, M and S, and to their children, all to share alike if living. Held, that the sisters and their children took as tenants in common, sharing per capita, and not per stirpes. One of the sisters died before the tes- tator. Held, that her share lapsed, Bradly v. Wilson, 13 Grant, 542. 30 — Devise to separate use, &c. — Liability for debts. Where a testator gave certain estates to trustees, in trust, as to the income, for the separate use of his daughter and her children for her life, with directions to pay the same to her ; and in trust as to the capital after her death, to divide the same equally amongst her chil- dren. Held, that she was entitled during her life, for her separate use, to an equal share with each of her children, that the residue of the income was to be paid to her for their benefit, and that her own individual share was alone liable for her debts. Crawford v. Cakutt, 13 Grant, 71. ffll i 680 EQUITY DIGEST. 31 — Dower — Election. A testator devised to his wile all his real and personal property during widowhood, under which she entered upon the real estate and took and applied to her own use the personal property. Having married again, she and her husband instituted proceedings at law to recover dower in the real estate. The Court restrained the aotion for dower, holding that the widow was bound by the election she had already made to take under the will. Westacott v. Cockerline, 13 Grant, 79. 32 — Charitable uses. A testator, by his will, directed his real and personal estate to be sold, and after investing sufficient to secure an annuity for his sister, directed the trustees " to pay over the balance of the nionoys so to be received from all these sources to the treasurer, or other receiving officer, of such religious or charitable societies as in their judgment and discretion require it," and after the death of his sister the sum so invested for her benefit was to be disposed of by the trus- tees in like manner. On a bill filed to impeach this devise, us within the Statutes of Mor'main, the Court, as to ,so much of tlie property as was realty, directed an enquiry to ascertain whether there were any, and what, society or societies of the nature contemplated by the will that could properly take real estate. Amhrson v. Don- gall, 13 Grant, 164. 33 — Void devise. A will contained a void devise of lands to charitable purposes, and then a residuary devise of the testator's lands not thereinbefore men- tioned or disposed of. Held, that the property comprised in the void devise passed to the heirs-at-law. Ltwis v. Patterson^ 13 Grant, 223, 34 — Survivors. A testator devised certain land to his two sons, their heirs or as- signs, or the survivor of them, when th^y attained the age of 25 years to have and to hold the same share and share alike forever, and di- rected that if the two sons should die without issue, befor ) tl>ey in- herited the property devised, their share to go to the survivors of the testator's children living at that time ; one of the sons died under the age of 25 without issue. Held, that the surviving son who attained the age of 25 took the whole property. In re Chat. Mcintosh, 13 Grant, 309. 35 — Construction of. A testator, in an inartificially drawn will, directed his debts to be paid, and bequeathed to his wife £125, to be paid Ler from the sale EQUITY DIGEST. 681 personal property the real estate and iroperty. Having tceedings at law to brained the aotion iie election ibc had ( V. CovkerUne, 13 Qrsonal estate to be nuity for his sister, the nionoya so to be or other receiving s in their judgment : his sister the sum bJ of by the trus- liis devise, as within uch of the property Lain whether there lature contemplated Aiuhrson v. Dou- table purposes, and thereinbefore nien- omprised in the void -son, 13 Grant, 223. ,3, their heirs or as- 1 the nge of 25 years^ ike forever, and di- isue, befor 5 tl>ey in- the survivors of the sons died under the ns son who attained Chat. Mclntoah, 13 ;ctcd his debts to be id her from the sale of his farm, which he required his executors to adrertise and sell for the best price that could be obtained for it, and also reUin posses- gion if she thought fit in lieu of all dower and thirds to have and to hold to her, her heirs and assigns forever. After giving legacies to his children, adding to each " to have and to hold to him his heirs, ezeou- ors, administrators and assigns for ever,"— the testator willed and de- vised that should any assets remain in the hands of his executors after paying the foregoing devises, the same should be equally divid- ed between his sons and daughters named, share and share alike. Held, that the direction to sell was for the benefit of all the legatees, and not of the wife only. Smith v. Bonnistetl, 13 Grant 29. The will devised as follows : " My farm, being lot no. 16, in the 1st concession of the Township of Sidney." This farm really con- sisted of this lot and the corresponding lot in the broken front con- cession. Held, that the devise covered both lots. lb. See Aqreembnt for Sale— Reqistration or Deed—Un- due Influence. WITNESS. Re-exanUnatton of, 1. Competencx of, 2. Colts, 3. Putting off examination, 8< To award, 4. Practice as to, 5. I — Re-examination of. Where a person who had given evidence in an action at law, be- tween substantially the same persons as were the parties to the suit, was afterwards committed to the Provincial Penitentiary, and refus- ed to be examined in the cause ; the Court ordered the witness' evi- dence at nisi prim to be read from the judges' notes, who had tried the action at law. Switzer v. Boulton, 2 Grant, 693. 2 — Competency of. A party who had improperly obtained a patent from the crown, and conveyed the property to another with notice, was called as a witness on behalf of his vendee, in a suit to have the patent revoked as having been issued through error and mistake, on the part of the crown. Held, that although he might be subjected to an action at the suit of his vendee, in the event of the patent being set aside, and the land granted to another, and therefore strongly interested in defeating the suit of the plaintiflF, still that he was not one for whose immediate benefit the suit was wholly or in part defended, and that the objection must be to his credit, not to his oompetencyt Procter v. Grant, 26. 4n 682 EQUITY DIGEST. 3 — Coeta — Putting off examination. Where a cause is withdrawn on account of the absence of a neces- sary witness for the plaintiff, and he shews that he has made diligent efforts to secure the attendance of such witness who is residing witn- in the jurisdiction, but fails to secure it. The costs of putting off the examination, will as a general rule, be cosL in the cause. In all other oases the costs will be disposed of according to circumstances, and in the discretion of the judge. Fatti$on v, Mc^ab, 12 Grant, 488. 4 — To award — Bound to prove it. Taylor V. Bostwick, 1 Chambers, 23. 5 — Practice as to. See Taylor's orders, to be examined viva voce, 10 ; examination of, out of jurisdiction, 11 ; before master and examiner, 133, 163, 186 ; appointment for, 133 ; notice of, 133, 134 ; cross-examination, 134 ; rules on, 96, 133, 134 ; examination of, out of term, 188 ; in term, 189, 220 ; out of jurisdiction, 190 ; may be recalled on examination, 192; no articles to discredit, 192 ; depositions to be in first person, 192 ; Court ma; order examination of, 192, 193 ; act respecting, 263; affirmations when allowed, 263 ; who may administer, 263, 264 ; no exclusion for crime or interest, 264; no party witness for himself, 264. See Award— Evidbncb — Plbadinqs— Specific Peuform- AMCS. WRIT OP ARREST. See Alimony — Arrest — Nk Exeat. WRITS OF SEQUESTRATION. Effect on chosea in action. Held, 1st, that a chos.^ in action is not a subject of sequestration unless a third party, the debtor, consents to it ; 2nd, that a creditor has a right under a writ of sequestration to compel payment by a third party of a debt which he owes to defendant pgainst whose es- taite the writ issues ; 3rd, that a chose in action is not so bound, either by the issue of a sequestration or by its delivery to the sheriff, as to prevent the third purty paying his creditor in good faith, and so dis* charging himself or preventing the creditor in good faith transferring the security, and so avoiding the effect of the sequestration ; 4th, '"'''wwwfiiipuppp EQUITY DIGEST. 688 senoe of a neces- las made diligent is residing mtn- 8ts of putting off tie cause. In all to oiroumsitanoeg, IcMb, 12 Grant, I ; examination of, ., 133, 163, 186 ; ixamination, 134 ; rm, 188 ; in term, id on examination, be in first person, :t respecting, 263 ; Iter, 263, 264 ; no tness for himself, • that writs of execution only bind moneys, choses in action, or se- curities for money, from the time of seizure by the sheriff, and not from the time either of the issue of the writ or the delivery thereof to the sheriff. McDowell v. McDowell, 10 U. C. L. J , 48. WRITTEN AGREEMENT. On a division of real estate, a written agreement was signed pro- viding for the payment of $1 ,100 to D. P, one of the parties interest- ed, t-i make hLs share equal to the others; held, that evidence was inadmissible of a contemporaneous verbal agreement, that the amount airreed to be bo paid was $1,800, part of the difference depend- in'' on a contingency. Phrrill v. Pherrill, 13 Grant, 476. WRITTEN INSTRUMENT. See Parol Evidence. oipic Pehform- N. it of sequestration ad, that a creditor ipel payment by a ftgainst whose ei- ot so bound, either the sheriff, as to 1 faith, and so dis* 1 faith transferring equestration ; 4tb, ii 11 V APPENDIX. Containing cases reported whilst this work was going through press, — cases omitted in the body of the work, ivith additional references to headings under which cases referring to more than one subject may be found. ACCOUNT. Widow's share. A testator directed his son to work his farm of 100 acres worth £50 or £100 a year, and pay one- third of the produce to his widow. The widow and son, and an infirm daughter lived together on the place until the death of the son, all receiving their support from the farm, the widow lor part of the time doing work equivalent to the support she received, but making no demand for her one third of the produce, and there being no agreement between them on the subject ; a bill by the widow against her son's representatives for an account of her share of the produce was dismissed with costs. Gilmure v. Gilmore 14 Grant, 57. For Rents and Profits. See Convetance, 6. Administration — Interest. The widow of an intestate married again and allowed her hus- band to use the moneys of the estate in her hands. Held, on appeal from the report of the Master that she was liable to pay interest at six per cent and no more, Fielder v. O'Eara, 14 Grant, 223. Mortgage — Parties. A testator devised all his real estate to a mortgagee thereof, charged with a l^acy in favor of an infant, and bequeathing legacies to other persons. The mortgagee filed a bill cluiming to have the sums ap- propriated as legacies applied to the payment of his mortgage debt. Held, that he was not entitled to be paid out of the personalty in preference to the legacies, but that he was entitled to be paid his mort- I gage debt out of the property so devised to him, before the sums charged thereon for legacies were raised. Ricker v. Ricker, 14 Grant, 264. 686 EQUITY DIGEST. Sale of Real Estate — Parties. On an application by a creditor in an administration suit, for the sale of real estate of the testator, the executors, to whom part of the real estate was devised, were held suflSciently to represent the parties interested in the real estate for the purpose of the motion ; and the order asked for was granted, with a direction that an office copy of the decree should be served on each of the parties interested in the real estate under the will. Stewart, v. Hunter, 14 Grant, 132. ADMINISTRATION ORDER. ^ The order XV. providing for the administration of estates without bill, applies to simple cases only, and under it the Court will not grant an order containing special directions to enquire as io what would be proper to be allowed to the applicants (the widow and ad- ministrators) for improvements made on the property, and for the maintenance of the infant children of the deceased. Barry v. Brazil!, 1 Cham. Rep., 248. Motion for. The facts that an estate is small, that no imputation is made against the executors of it, and that it is unadvisable to incur legal expenses, are no answer to a motion by a legatee against the executors for the usual administration order. In re Falconer, 1 Cham. Rep. 273. ALIMONY. Misconduct of wife subsequent to decree. After a decree for alimony had been made and alimony paid for several years under it, the Court entertained a petition by the hug- band to be relieved from the decree on the ground of adultery subse- quently committed by the wife. On the hearing of a petition by a husband to be relieved from a decree of alimony, an act of adultery was sworn to by two credible witnesses ; and the general conduct of the wife raising no presumption in her favor, an order was made as prayed. Severn v. Severn, 14 Grant 150. AMKNDING. Parties — Costs. Where a question affected the right of the Government to the land I granted in a patent, the Attorney General was held to be a necessary EQUITY DIGEST. 687 ition suit, for the whom part of the (present the parties motion ; and the an office copy of interested in the i Grant, 132. R. / in of estates without the Court will not enquire as io what the widow and ad- perty, and for the . Barry v. Brazil!, imputation is made sable to incur legal against the executors •oner, 1 Cham. Rep. nd alimony paid for petition by the hus- nd of adultery subse- [ig of a petition by a y, an act of adultery ie general conduct of n order was made as party and leave to amend was granted to enable him to be added as a party although the defendant was in a position to move and made a counter motion to dismiss, but the defendant was allowed costs. 0, W. R. Co. V.Jones, 2 Cham. Rep., 219. ANCIENT DEED. New trial before a jury. Although the rule is, that an ancient deed produced from the pro- per custody proves itself, this does not preclude a party interested from proving that the deed was a forgery; or that on any other ground this deed is not a valid and binding instrument. Where a party supporting a deed proves the hand-writing of a deceased witness in order to raise the presumption of due execution the other party may give evidence of the character of such deceased witness as corroborative of evidence tending to shew that the deed was a forgery concocted by him. A trial was ordered before a jury to try the question as to the gen- uineness of a deed more than thirty years old, produced by one of the parties, when evidence was adduced which was a surprise upon the defendants. The Court at their instance, ordered a new trial or rehearing of the cause upon payment of costs of the hearing already had, including the costs occasioned by a jury being summoned and empanelled, as also the costs of the motion and defendants undertak- ing to pay the costs of the second jury, should they demand one whatever might be the result of the cause. Chamhsrhxin v. Tor- mnce, 14 Qrant, 181. APPEAL. )vernmcnt to the land held to be a necessary Appeal from County Court — Practice — Coats. In appeals against the orders of the County Court this Court will assume these orders to be correct until the contrary is shewn ; and care must be taken to point out the defects on the pleadings and proceedings brought into this Court. The defendant in a suit on the equity side of the County Court had before being served with an injunction restraining the removal of a building removed the »ame by direction of the City Inspector ai being a nuisancu, having been erected partly on the public street ; notwithstanding this, an order was made by the Judge of the Counter Court for the committal of the defendant, who, without moving to dissolve the injunction on the facts, appealed to this Court : in mak- I. I I If *!i:-' Hi Ki M til; I ■* \\4 ilK: 688 EQUITY DIGEST. ing an ordei allowing the appeal and directing the discharge of the defendant, the Court did so without giving him the costs of the application. Murphy v. Morrison, 14 Grant, 203. From the Master's report — Dating report — Increased rate of interest— ^Rents and profits. Where a Mortgage stipulated that up to a certain day the interest to be charged should be 8 per cent. ; and if the principal were not then paid 12 per cent, should thereafter be charged. Heldy that the stipulation for payment of 12 per cent, was not by way of penalty, but an agreement to pay that rate from the day named. After default in payment of a mortgage a tenant who had been put in possession by the mortgai^or, promised to pay the mort< gagee rent but failed to do so. ,BmM, that the mortgagee was not chargeable with such rent. A local Master in making his report is not at liberty to date it until the costs taxed by himself have been finally revised, and settled by the Master in Ordinary under the General Orders. Waddtll v, ifcCo?/, 14 Grant 211. Appeal from Master — Costs. Where it was considered that the finding of the Master was under the circumstances a fit subject for discussion ; the Court although it dismisrad an appeal from the finding of the Master did so without cogtor ^ecorfJ v. Terryherryy 14 Grant, 172. Leave io appeal. Leave to appeal from a report was refused with costs where it appeared that the object of the appeal was to fix executors with interest upon a sum which thoy had invested, and upon which a loss occurred, Coates v. McQlashan, 2 Cham. Hep., 2 18. APPEALED CASES. Springer v. Gray. — In appeal, 7 Grant, 276 j reverses decree 5 Grant, 242. Specific Performance. Aikell v. Wilson, 7 Grant, 270, affirms decree, 5 Grant, 470 Mortgage — Kedemption . Weir V. Weir. The insertion of this case at p. 57 is erroneous, this case was not appealed. Arnold t. McLean, 4 Grant, 337 ; reversed on appeal, 6 Grant, 242. EQUITY DIGEST. 6S^ he discbarge of the im the costs of the 13. — Increased rate taid day the interest e principal were not •ged. per cent, was not by it rate from the day ige a tenant who had sed to pay the mort- le mortgagee was not at liberty to date it ly revised, and settled Orders. Waddell v. the Master was under the Court although it laster did so without d with costs where it to fix executors with and upon which a loss p., 218. 76; reverses decree 5 APPROPRIATION OP PAYMENT.! If money is not expreialy appropriated by the party paying it, ths party receiving it may appropriate it even upon a' claim which h« cannot enforce by suit. Fraser v. Lode, 10 Grant, 207. ATTACHMENT. It is improper to have recourse to an attachment when the object sought can be obtained without such process, where, therefore a party directed to execute a conveyanec had come into town for th« purpose of executing it, although after the period in which strictly it should have been dune, and the plaintiff's solicitor with a know- ledge of these facts, issued an attachment, it was set aside with costs. Maton V. Seeney, 2 Cham. Rep., 220. BILL. Form, shape, type, dates, d'c, of bill. Where a bill had been Gled not complying with the orders, tha dates not being expressed in figures, although the bill was printed, and not being in pica type nor of the usual size as required by the orders, the service of a copy of it was set aside; the fact of the Deputy Registrar receiving it and filing it not being deemed a bar to the motion. Cosset/ v. Ducklow, 2 Cham. Rep., 227. CHARITABLE USES. Voluntary bo nd — Inju nction. A voluntary bond to a charity purporting to bind the obligor and his heirs and payable six months after the obligor's death, cannot be enforced against the obligor's lands. A judgment having been recovered against the obligors executors on a voluntary bond in favor of a charity, and execution having been issued thereon against his lands the Court at the suit of the heiri restrained further proceedings on such execution. Andenon v. Paine, 14 Grant, HO. CONSTRUCTION. decree, 5 Grant, 470 I Rgp^R also to Will. at p. 57 is erroneous, i on appeal, 6 Grant, CONTEMPT. Where a party is in contempt for not bringing in accounts into tbe Master's office, it is a sufficient clearing of his contempt to bring An 090 EQUITY DIGEST. in such accounts and tho sufficiency of them will not be looketl iito. Clancy v. Patterson, 2 Cbam. Hep., 217. I m . CORPORATION. Injunction — Joint Stock Company — Subscription for stock — Payment on account of stock. The Act (22 Vic. ch. 122) incorporating the North-west Transit Company, enacted that it should not be lawful for the Company to proceed with their operations under the Act until £50,000 of the capital stock shall have been subscribed, and ten per cent, shall have been paid thereon. Subsequently and before £59,000 had been subscribed or the per oentage paid thereon, a proposition was made by one C. to certain stockholders in the enterprise, that C. should sell a steam vessel belonging to him to the Company for £5,000 and that in that event he should become a subscriber to the amount of £50,000, and that the steamer should bo paid for by taking her as a payment of 10 per cent, on the £50,000 which was acceded to, and the subscription and purchase made accordingly in compliance with a resolution of the Company. Held that this was an evasion of the Statute, and an injunction was granted on motion restraining the Company from proceeding with any of the operations thereof until the conditioni pointed out by the Statute had been complied with. Rowland v. McNahy 8 Grant, 47. COSTS. Cost of Guardian, The Court will direct the costs of a guardian to be paid before granting a vesting order to the purchaser. Thome v. Chute, 2 Chum. Rep., 221. Coats of executor dc son tort — Interest on unpaid pur- chase money. Where an executor and trustee named in a will had acted as such to the advantage of the estate, without having proved the will, he was allowed his costs, as between party and party, of an administration suit lo which he was a party delbiidant, excepting some costs which he had needlessly incurred. Sunley v. McCrae, 2 Cham. Rep., 231. Of a purchaser rendering injunction suit necessary. ■ A purchaser whose vendor had died and irho ^ad paid his pur- EQUITY DIGEST. 691 t be looked iito. ohase money partly to the vendor in his life time and the balance to his administrator, brought an action to recover back the purchase money, when a bill for an injunction was filed, a good title was sub- lequently shewn; the purchaser, the defendant in the injunction suit, was ordered to pay the costs down to the hearing of the cause. Van Warmer v. Hardiny, 2 Cham. Rep., 199. Of Chambers motion viade in Court. Where a party moves in Court for what should properly be moved for in Chambers, the Court will not allow the party so moving any costs of the application, even if the Court feels itself called upon to grant the motion. Mumey v. Courtney, 10 Grant 52. Costtt of appeal from Masters report. Three persons having entered into Bevcral contracts in the name of one of the three for the construction of portior.s of a vjurcid without any written articles of agreement us to tlie share each siiculd have after the completion of tlie works, disputed as to the share each should have in the contracts, and a bill was filed by one of thetu to have an account taken claiming a larger share in the profits than the Master allowed him by his report, from which all parties appeided being dissatisfied therewith, and by arrangement the Court below affirmed the finding of the Master with the view of taking the opin- ion of this Court thereon. The Court on affirming the order of the Court below refused the costs of the appeal to either party. Nichols V. McDonald, in appeal, 8 Grant, 106. See abno to Merrill v, Ellis. 1 Cham. Rep., 303. CROSS RELIEF. See Buchanan v. Cunningham, 10 Grant 513. n unpaid pur- CROWN LANDS. Sale of — PleadLwjs — Costs. Where the Crown Lands Department has had before it the evi- dence and claims of counter claimants, and a patent is directed to issue to one of them, this Court hus no power to review the decision of the Commissioner; although it might under the circumstances, have taken a different view of the case in the first instance from that taken by the Commissioner. Pleadings should be in language and statement as brief and con- oiie as possible, and neither matters of argument or evidence should 692 EQUITY DIGEST. be introduoed into them. In future, where pleadings are filed eon - taining uieleiu or improper statements or admissions so restricted as to render proof necessary, the costs of such pleading will not be allowed to the party filing it but, on the contrary he will be ordered to pay the costs occasioned thereby. Kennedy v. Lawlor, 14 Grant, 224. DECISIONS, &c. Add — Commercial Bank v. Bank Upper Canada. 7 Grant, 423, affirms decree 250 same volume. Springer v. Gray, 7 Grant 276, reverses decree b Grant 242 ; Arkell v. Wilson, 7 Grant 270, affirms decree 5 Grant, 470. Judgment Creditor. Bank of Upper Canada v. Thomas 2 E. & A. 502, varies decree of Court below, holding that where a debtor conveyed away his estate in fraud of his creditors to a person having a judg- ment against the debtor, which conveyance was declared fraudulent and void as against creditors upon a bill filed at the instance of creditors (in that respect varying the decree of the Court below). The creditor to whom the conveyance had been made was not under the circumstances precluded from enforcing his judgment against the lands of the debtor, the conveyance of which had been so avoided. Bank of Upper Canada v. Thomat, 2 E. & A. 502. Hawkins v. Jones, 1 Grant 257, affirmed 1 E. & A. 246. DE BENE ESSE. See Examination. DEED. Trust deed void in part — Lottery. A debtor conveyed his real estate to trustees for the benefit of his creditors, to be disposed of by the trustees, first, by a lottery, and failing that plan of disposition, then in trust to sell as the trustees should deem most advantageous. Held^ that although the deed was void as to the trust for a lottery, it was valid as to the other trusts therein declared. A conveyance of property for the benefit of creditors may create a valid and irrevocable trust, although none of the creditors are either parties or privy to the deed ; and when in its inception it is not so, tubsequent dealings or communications between the debtor or his ^ ;g are filed con • so restrioted as ]g will not be will be ordered lotor, 14 Grant, 7 Grant, 423, , 7 Grant 276, rant 270, affirms i2, varies decree conveyed away having a judg- lared fraudulent ; the instance of e Court below). Ic was not under ;inent ae;ainst the been so avoided. A. 246. the benefit of his )y a lottery, and 11 as the trustees gh the deed was the other trusts tors may create a editors are either tion it is not so, he debtor or his EQUITY DIGEST. trustees and the creditors may render the trusts irrevocable. «v«v. -banners, 5 Grant, 114. 693 Good- DEED OF GIFT. Parent and child. In the case of a gift from a parent to a child there is no rule which requires the child, in the absence of evidence showing imposition or undue influence, to support the deed by the evidence which might b« necessary in the case of a gift from a child to a parent. Wycott v. Hartman, 14 Grant, 219. DEMURRER. V The giving time to answer does not authorize the defendant to demur after the time for answering has expired. Chamberlain v. McDonald, 2 Cham, Rep. 204. Where a demurrer is filed for want of parties as well as for want of equity, the question of parties must bo disposed of, before the de- murrer for want of equity can be argued. Malcolm v. Malcohn, 2 Cham. Rep., 200. DISCLAIMER. 8ee Foreclosure U. DISMISSING BILL. Where a motion to dismiss was made by certain defendant! who had been made parties by amendment at a comparatively recent date, delay having occurred previously in the conduct of the case, they were not permitted to shew such delay as a ground of dismissal and an order to dismiss made by the secretary, wl^ose attention had not been called to the fact of the parties moving having become parties at a recent period ; was reversed but with costs against the plaintiffs, they having been guilty of delay. 7'he Upper Canada Mining Co. V, The Attorney General^ 2 Cham. Rep., 207. See also McNah v. Morriton, 2 Cham. Rep., 133. DORMANT EQUITIES. The Statute 18 Vic. ch. 124 applies only to cases where the cause of suit arose before the passing of the Chancery Act (1837). The locatee of lands of the Crown in 1824 contracted to sell a portion thereof, the consideration for which was paid but he con- tinued to hold possession of the lands until the year 1855 when the 694 EQUITY DIGEST. hein of the bargainee filed a bill to enforce apeoifio performance of the crntraot, the patent from the Crown having been issued in 1830. The Court dismissed the bill with oosts. Silcox v. SelU, 6 Grant, 237. SXE ALSO MoaXOAOOR AND MORTQAOKE APPENDIX. DOWER. Where a married woman had signed a deed which however, con- tained no bar of dower, the secretary refused to direct a reference to inqaire whether she intended thereby to bar her dower, though there were infant defendants who were interested in having the dower bar- red. Such relief would be properly the subject of a bill. Tho7»pMon V. Thompton, 2 Cham. Rep., 211. EQUITY OF IlEDEMPTION. Sale under execution — Costs. Where several lots of land are mortgaged, the equity of redemp- tion in one or some of them only cannot be sold under Common I'jav process — and Semble that where lands in different counties are mort- gaged, the equity of redemption cannot be sold under execution »t law and can only be reached in equity. Where an appeal from the Master was dismissed on a ground appearing for the first time on the appeal and had not been taken in the Master's office, the Court refused to give costs to the suocesafui •parties. Hewardv. Wol/enden, 14 Grant, 188. See also Mortoaqou and MoRTOAaEE, appendix. ESPLANADE ACTS. Arbitration. Arbitrators appointed to determine the amount to be paid betweeu the city and a water lot owner, in respect of the construction of the esplanade, in settling a value on the water lot did so at the time o'i the grant and awarded interest in respect of the sum found payable by the owner to the city. The award was set aside on both grounds as the arbitrators should have valued the lot as at the time it was taken possession of by the city and the Statutes gave them no power to award interest which is chargeable only from the time of the re- gistration of the surveyor's certificate or the registration of the award. In proceedings under the Acts, whether there should not be se- parate findings or awards in respect of the filling-in of the esplanade, BQUITY DIGESt. 695 I pertbnnauce of i issued in 1830, . Selli, 6 Grant, DIX. oh however, oon- ■eot a reference to wer, though there ing the dower bar- a bill, r^ojwpion equity of rcdeuip- ider Common ';aw counties are mort- »nder execution «t lissed on a ground not been taken in a to the BucccBsful >ENDIX. , to be paid between Iconstruction of the 80 at the time ol' [um found payable le on both grounds |at the time it was 'ave them no power [the time of the r^ Iration of the award. le should not be se- jin of the esplanade, snd the grading, levelling, &o., of the strip to the north ofii-Quar*. Brooke v. Oily of Toronto^ 14 Grant, 258. FIERI. FACIAS. Sib Consolidated Statutes 280. FIXTURES. See McQuetten v. Thompson^ 2 E. & A. 167. FRAUD-STATUTE OF Tmsta — Statute of fmrnh — Parol evidence. Paro} evidence to establish trusts not shewn upon a conveyance absolute in form is inadmissible. Langttaff v. Playter, 8 Grant, 39. FRAUDULENT CONVEYANCE. Delaying Creditor. A debtor sold his property, receiving by parol certain future rents to pay a creditor and which were sufficient for the purpose; the object was to delay the creditor and to compel him to wait for payment until these rents should accrue and all parties combined for that object. The sale was held wholly void against the creditor— a transaction to delay a creditor being within the Statute 13th Elizabeth, as much as a transaction to defeat him altogether. Murtha v. McKenna, 14 Grant, 59. Insolvents. Where an insolvent person who was pressed by his creditors and oontemplated leaving the country in consequence of his embarrass* ments, made a conveyance of all his tangible property for an inade- quate consideration to a relative who was aware of his circumstances; the conveyance was set aside against creditors. Crato/ord v. Mel- drum, 3 E. & A.- 101. INDIAN RIGHTS. See Sown v West, E. & A., 117. INFANTS. Setting up defence not pleaded by ancestor. Where infants have been made parties by levivor, they cannot set up a defence which their ancestor had not set up, except when such 696 EQUITY DIGEST. anoMtor has been prevented by fraud or mistake from pleading suoh defence, and all the more particularly where the deceased defendant has been guilty of. gross laches, burkt v. Pym^ 2 Cham. Rep. 193. INJUNCTION. Committal for breach of ^Settlement of Suit — Condition. After an injunction restraining the felling of timber had been issued and on the same day the writ was served, the plaintiff entered into a written agreement with the principal defendant in the cause, bj which the latter agreed to give up possessioa of the premises in q\u)stion on a particular day, and to refrain from cutting or remoT- ing any timber cut in the meantime, and the plaintiff thereby agreed '* that I, the said T. M., do hereby, upon the above rouditions being complied with, withdraw all suits now pending,' &c. The defen- dant having, notwithstanding continued to cut down and remove the timber, a motion was made to commit him for breach of injunction, when it was held that the suit was still pending the acts agreed to be done by the defendant, being a condition precedent to the with- drawal of the suit. Mulholland v. Downes, 14 Grant, 106, Delay in Moving. Where the plaintiff's title was disputed and the injury of which he complained had been going ou for three yoars, and was not any greater at the time the plaintiff moved for an interlocutory injunction than it had been for three years before ; the Court refused the motion, Rich V. Brant/ord, 14 Grant, 83. INJUNCTION. Rkfer also to Riparian Propbistors. INSOLVENT. Marriage settlement. A person in insolvent circumstances conveyed by way of settle- ment to his intended wife, a lot of land, on which the settlor had eommenced to put up a house but which was not completed until after the marriage. On a bill filed by the assignee in insolvency the Court declared that for so much of the building aS was completed after marriage the creditors had a claim on the property but gave the wife the right to elect whether she would be paid the value of her interest without the expenditure after marriage or pay to the assig* neet the amount of such expenditure^ and it subsequently appearing EQUITY DIGEST. 697 m pleading suoh seased defendant Cham. Rep. 193. ; — Condition. er had been issued iitiff entered into in the cause, by the premises in cutting or remoT- itiflF thereby agreed re conditions being &c. The defen- wn and remove the sach of injunction, the acta agreed to jdent to the with- [rant, 106, e injury of which and was not any rlocutory injunction refused the motion, 1 by way of settle- lioh the settlor h»d not completed until tee in insolvency the r ad was completed •operty but gave the lid the value of her [)r pay to the assig- (sequently appearing that the husband had created a mortgage prior to the settlement the ^ife was declared entitled to have the value ot the improvements made after marriage applied in discharge of the mortgage in priority to the claims of the creditors, Jackson v. Bowm2n, 14 Grant, 156. INSURANCE. Provisional receipt. A. applied to an agent of the Royal Insurance Company to effect an insurance and paid the premium. The agent gjive the usual receipt following a form supplied by the Company and which declared that a policy would be issued by the Company in sixty days if ap- proved of by the manager at Toronto : that otherwise the receipt would be cancelled and the amount of unearned premium refunded and that the receipt would be void should camphene oil be used on the premises. The agent did not report the transaction to the Com- pany and after the expiration of sixty days a fire occurred. Held Istly. That this receipt contained a valid contract for interim insurance. Held 2ndly. That the Company and not the insured, should sus- tain any damage occasioned by the agent's neglect and that the Com- pany was liable for the loss by the fire. Patterson v. The Royal In- surance Company, 14 Grant, 169. Vessel, o the plaintiff though it may to some extent involve proof of a negative. Where it appeared that the Commissioner of Crown Lands b deciding between rival claimants to a lot of land to which neither claimant had any right was under a false impression as to a matter of fact, and the fact had not been untruly stated by the party in whose favor the Commissioner had decided and was not shewn to be material. Held, that the error did not constitute a sufficient ground for setting aside the patent at the suit of the disappointed claimant. McJntyre v. The Attorney General, 14 Grant, 86. LIEN. Mortgagee's lien. Where the Mortgagee's right to claim a lien on the unsold portion has been put an end to, it is not revived by his, two years after- wards, obtaining the consent of the first purchaser to a re-oonveyanoe on payment of the mortgage money. Oowland v. Oarbutt, 13 Grant, 678. EQUITY DIGEST. 699 . C., then regii- )a5meDt of th« lives a release of r C. to foreoloM f B's mortage se from A. to B. >n and that B. Qcei. n intention, that ;ee acquiring the rity, but that the ntention here. )f redemption ii em in respect of to foreclose the bpeal letters patent aintiff though it jToym Lands b to which neither on as to a matter by the party in ,3 not shewn to be sufficient ground tpointed claimant. ;he unsold portion two years after- to a re*conveyaDoe 7arbutt, 13 Qrant, Eqvbitahle lien. No equitable lien, charge or interest affecting land shall be deemed valid in any Court in this Province after this Act shall come into operation, as against a registered instrument executed by the same party, his heirs or assigns; and tacking shall not be allowed in any case to prevail against the provisions of the Act. Stat, of Ontario, 31 Vict., chap. 20, sec. 68. LOST WILL. Costs. When in consequence of the state in which a testator left his papers, a reasonabla doubt waa created aa to his having left a will, the costs of the parties necessary to diaonss the question of *• will or no will " were ordered to be boruo by his estate, liesteif v. Boitwich, 14 Grant, 246. LOTTERY. See Deed. Appendix. LUNACY. See Spsoirio Firformance 51. MARRIED WOMAN. Before an order for a married woman to answer separately will be made, it must be shewn that an of&ce copy of the bill has been served OD her. Anonymous, 1 Cham. Rep., 9. MORTGAGE. dower — Equity of redemption. Where a woman joins in a mortgage to bar her dower for thepur- I poae of securing a debt of iior Imsbaid, and after his death the pro- perty is sold for more tliau is suflicicnt to satisfy the claim of the Bortgagee, the widow will bu entitled to have her dower secured out of the surplus in prefcroaoo to tho simple contract creditors of her ihosbaiid. Sheppard v. iSheppard, 14 Grant, 174. I Opening foreclosure — Costs. L. and S. were joint owners of certain lands, and L, had created i I Mrtgage on a part of his undivided interest in favor of R. With a r 1 700 EQUITY DIGEST. ▼iew of effecting a partition, L. conveyed his interest to his co-tenant S. who thereupon re-conveyed to L. a certain defined portion and i|i order to protect S. against the mortgage outstanding in R's handis, L. executed hack to S. an indemnity mortgage ; L. did not pay off R's mortgage ; and R. having obtained a final decree of foreclosure, sold his interest in the property to S. L. after the partition had sold a portion of the estate to the plaintiffs who in respect of their interest had been made parties to the foreclosure suit by R. Subse- quently in an action of ejectment S. set up title under the indemnity mortgage from L. Held, that he had thus let in the plaintiff to redeem who were entitled to do so upon paying what S. had paid or was liable to pay to R. and all expenses reasonably incurred, together with costs as of an ordinary redemption suit, beyond those S. was ordered to pay the costs. Read v. Smith, 14 Grant, 250. > MORTGAGOR AND MORTGAGEE. Mortgage created by deed absolute in form — Sale by Sheriff of equity of redemption — Dormant cqnities — Statute of limitations — McCahe v. Thompson (i\ Grant, 175^ fol- lowed. Application of llth clause of Chancery Act. In April 1830 A. the owner of real estate being indebted to B. in the sum of £121 and unable to pay the same, procured two sureties to join him in a bond for the amount of his indebtedness and as an indemnity to them, conveyed several valuable lots of land by a deed absolute in form, taking back a bond of defeasance. Ten days after- wards one of the sureties delivered to B. a promissory note of two other persons for about one-half the debt and interest, and in May of the following year, A being still unable to pay, and his sureties desir- ing to be relieved from liability it was arranged between A. and B, that A. should convey certain of the lands which had been so tram- ferred to the sureties to 6, which was accordingly done by an absolute deed of conveyance, and the bond cancelled, B. at the time giving back a memorandum signed by himself as follows : " Received of Mr. A. MoDonell, lands as follows : " (enumerating them part being cul- tivated the rest waste lands) " for the sum of £126 5s. (this amount being the original debt and interest) should he want the above pro- perty I should have no objection of giving it back if Mr. A. Mc- Donell would pay me the above sum in three instalments, viz : (set- ting out the several instalments^ with interest from this date." A, was then in possession and occupation of the cultivated lands and EQUITY DIGEST. 701 to his oo-tenant portioa and i^ in B'shandis, lid not pay off of foreclosure, i partition had •espcct of their by R. Subse- r the indemnity the plaifttiff to S. had paid or curred, together od those S. was ;, 250. . :e. Sale by Sheriff les — Statute of mnt, 175; fol- ncery Act. indebted to B. ia iired two sureties edneas and as an I land by a deed Ten days after- ssory note of two ;st, and in May of his sureties desir- tween A. and B. lad been so tram- one by an absolute t the time giving •* Received of Mr. em part boiug cui- 6 5s. (this amount ant the above pro- ck if Mr. A. Mfr ulments, viz : (set- nni this date." A. iltivated lands and also in possession of the wild lands and so continued until 1848, when B. instituted proceedings in ejectment to obtain possession of the cultivated lands, in which action he obtained possession of the cultivated lands in 1849. About the same ti.ne (1849) other cred- itors of A. had obtained judgment and execution against him under which his interest in these lands was sold in 1850 and purchased by B. through an agent. In the books of B. (for the year 1849) en- tries were found charging A. with interest on the amount from 1831 to 1849. B never gave credit for the amount of the promissory note received by him, nor did he produce it or account for it in any way. In 1860 a bill was filed by A. claiming a right to redeem and a decree for redemption was made. On an appeal from the Court below Held, (Draper and Richards, C. J. J. and Morrison, J, dissent- ing) affirming the decree of the Court below first, that, under the circumstances stated, the deed to B. together with the memorandum signed by him operated as a mortgage security only. Second, that the circumstances appearing were such as did not warrant the Court in its discretion in refusing redemption under the provisions of the llth clause of the Chancery Act. Third, following McCahe v. Thompson, 6 Grant, 175, that the security to B. having been created by a deed absolute in form, the right or interest of A. therein was not saleable by the Sheriff under Common Law process. Fourth, the Dormant Equities Act did not apply ; and Fifth, that under the circumstances the lapse of twenty years since the time appointed for payment did not bar A's right to redeem. In 1831, a mortgage was created by conveyance absolute in form, on several lots of lan^. one of which was occupied and cultivated by the mortgagor as a farm, the others were wild lands and unoccupied. No attempt was made to disturb such occupation until 1848 when an action of ejectment was brought and the mortgagee put into pos- session of the cultivated lands in 1 849 ; but no step was taken to ob- tain possession of the wild lands other than the fact that the mort> gagee had always from the date of the mortgage paid the wild land taxes thereon, and had also but not until after 1852, sold some of the lands, the purchasers of which had taken possession of them and continued thereon ever since. On a bill filed to redeem in 1860, Held, (Draper and Richards, C. J. J. and Morrison J. dissenting) that as to the lands not sold the Statute of Limitations did not apply to bar the mortgagor of the right to redeem. And as to the lands sold, the Court ordered the mort- fi hi i; i' m 1 702 EQUITT DIOEST. gagee to aooount for the porohase money thereof with intereat. McDonald «. MeDonell, 2 E. & A. 393. Estoppel — Representation affecting third parties. The owner of real estate created a mortgage thereon, and afterwards sold and conveyed a portion of the property by a deed containing absolute covenants for quiet enjoyment, freedom from incumbrances, &0., taking from the purchaser a bond, conditioned for the payment of a proportionate amount of the mortgage debt. Held, reversing the judgment of the Court below, that the fact of the purchaser holding such absolute conveyance was not such a representation to the holders of the mortgage as warranted them in executing to the purchaser u .c-lease of his portion of the estate from the mortgage and .'ifterw4rs in the Master's [parties before the le Master's office. lis co-partner for of the co-partner- it but are of uu- jmber of a mercan- r purchased lands 3h were subject to such incumbrances ae of the firm, but rtnership was held I that the arrange- jffectually securing int, 268. Partimra retiriwj to be Indemiilfied by the contlmdnrj part- ners — Parties. A. and B. a trading partnership entered into a joint speculation with 0. and D. for the purchase and sale of lands ; afterwards E. was admitted into the concern upon the understanding that each should be entitled to one-fourth of the profits, and liable in the same pro- portion to any losses incurred. For the purpose of carrying on the business of the co-partnership the parties were in the habit of dis- counting notes which were made by E. and endorsed by A. and B^ and C. D. in their individual names. After the partnership had been in operation for nearly three years; C. wrote to A. and B. and E. proposing to retire from the concern on receiving a certain amount in lands taken at a valuation, he agreeing for a certain period to con. tinue to endorse renewals of the notes of the firm then outstanding as accommodation endorser ; which proposal was communicated to D., but nothing further was then done with regard to it. Shortly afterwards D. made a similar proposition to A. and B. and E. on their " assuming all my share of the liabilities incurred by or for the said company, ex- cepting only my liability for 12 or 15 mouths, as accommodation en- dorser after Mr. Knowlson (C.) on the paper in the Bank of Upper Can- ada' ' which proposal was accepted by A. and B. and E. Subsequently, both C. and D. by a joint memorandum, formally relinquished their interests in the company, but it did not appear that D.'s stipulation as to endorsing the notes was ever communicated to C. The notes so endorsed by C. and D. had been all consolidated into one note of £3 200, and upon the renewal of this note an action was subsequently brought against all the parties thereto, and a sale of D.'s lands was effected under the execution issued in that action, which realized only a portion of the amount. Thereupon D. filed a bill against C, seeking to make him as prior endorser, pay the amount still remaining due in respect of the judgment, to reimburse D what his lands had sold for, and also to make up the loss sustained by him in conse- quence of the sale of his lands at, as was alleged, a great undervalue. ' Under the circumstances of the case, the Court below treated C. and D. as co-sureties for the continuing partners, and as such, liable only to make up the amount of the claim in equal proportions; and it appearing that C. had already paid more than his moiety of the de- mand, ordered D. to repay the excess to him together with the costs of the'suit, which on an appeal to this Court was affirmed and the ap- 4q i L ri'i 706 EQUITY DIGEST. peal dismissed with costs. Per Eaten V. G. Prior to the General Orders of 1853, (Bule 8, Order 6), it would have been necessary to make the continuing partners parties to such a bill, unless it wer« shewn that they were insolvent, in which case that would afford a sufficient reason for not making them parties. Harper v. Knowlson, 2 E. & A. Rep., 253, Refer also to Account. PART PERFORMANCE. See Purchase Monet. PLEADING. Parties. A bill was held to lie by a corporator of the Church Society of the Diocese of Toronto, on behalf of himself and all other members of the Society, to correct and prevent alleged breaches of trust by the corporation. To such a bill the Attorney General is not a necessary party. Boulton V. The CJiurch Society of the Diocese of Toronto, 14 Grant, 123. PRACTICE. Foreclosure or sale. Where the prayer of the bill is in the alternative for either sale or foreclosure, the Court will at the instance of the plaintiff, make a decree for sale and in the event of a sale failing to produce sufficient to cover the claim of the plaintiff order foreclosure, Blachford v, Oliver, 8 Grant, 391. Injunction by defenclaut. If an injunction may be granted to a defendant before the hearing (as to which, query?) the answer must pi ay therefor specifically. Brandon v. Elliott, 14 Grant, 109. Master's offix:e. When a plaintiff had been guilty of delay in bringing a decree into the Master's office ; and after taking out warrants to consider, pro- cured two postponements and did not attend the third appointment, the Master on a subsequent day transferred the carriage of the decree to the defendant and granted him a warrant to hear and determine : Held, not regular. A notioe to rehear a cause by the party who has the carriage of EQUITY DIGEST. 707 » the General I necessary to anless it wer« rould afford a • V. Knoichon, L Society of the er members of )f trust by the eccssary party. onto, 14 Grant, or either sale or aintiff, make a reduce sufficient Blackford v. efore the hearing efor specifically. jing a decree into to consider, pro- rd appointment, age of the decree and determine: IS the carriage of the decree, does not in the absence of special oircumstanws, entitle him to stop the prosecution of the decree in the Master's office. StepheMon v. Nicolls, 14 Grant, 144. Several grounds of demurrer. A demurrer was filed for want of parties and for want of equity and on the argument it was admitted that the bill was defective as to parties Th3 Court refused to allow the other question to be argued until the bill was ma lo perfect as to parties and gave the plaintiffs liberty to amend on payment of costs. Malcolm v. Malcolm, 14 Grant, 165, 2 Rep, Cham., 200. Married women, examination of Where it would be attended with inconvenience to have a married woman examined by the Court or Judge, touching her consent to abandon her interest in the fund in litigation the examination may be taken by the Master. TompJeins v. Holmes, 14 Grant, 245. A hatemen t — Part left. During the progress of an administration suit, and after the Mas- ter had made his report charging the executors jointly with receipt of assets of the estate, one of them died, and the plaintiff by way of revivor made his personal representative a party. A motion to dis- charge the order of revivor on the ground that no abatement had taken place, was refused with costs. Glomten v. McLean, 14 Grant, 261. Motion for decree — admif^mm^. On a motion for decree the plaintiff was assumed for the purposes of the motion to admit all the statements of the answer of which proof would be receivable at a hearing in term. A bill for redemption alleged that an absolute conveyance which the plaintiff had executed was intended for a security as a debt then due by the plaintiff. The defendants admitted that the conveyance was intended as a security but alleged that it was to secure further advances as well as the existing debt and interest at 12 per cent. The plaintiff moved for a decree on the answer. Held that the de- fendaift was entitled to a declaration that the security was to cover the future advances and 12 per cent interest as well as the existing debt ; but the Court gave leave to the plaintiff to abandon his motion and to file a replication and proceed to a hearing in term if hechsse. The defendants by their answer specified a certain sum as the amount of the debt due at the time the CQQveyanoe was executed and I I! •*5 4 1 708 EQUITY DIGEST. certain other amounts, as admitted by the plaintiff to be duo at sub- sequent periods. Held that on a motion for decree these allegations were not binding on the plaintiff and that they muHt b ^'^blishcd before the Master. Wihon v. Gomey, 14 Grant, 80. Prmcipe decree — ahftent defendant. When proceedings are taken against an absent defendant by adver- tisement, a decree cannot be obtained on prnocipc. McMichad u. Thomas, 14 Grant, 249. PRINCIPAL AND AGENT. A, had authority to collect rent and to contract for the sale of pro- perty and to receive the down payments. Held that such authority did not entitle him to receive payments on a mortgage given for unpaid purchase money. Where such an agent had at one time without authoi '*v received some payments on such mortgage which the principal not pub- licly repudiate and another mortgagor who did not a^-^ to have had notice of these payments, made a payment to the agent on his mortgage fourteen months after the agent had ceased to receive any mortgage money, such payment was held to be not a good payment. Greenwood v. The Commercial Bank of Canada, 14 Grant, 40. PRINCIPAL AND SURETY. Municipal corporation. Where a corporation having a debt to pay, which it is their ad- vantage to discharge immediately, raised money upon an accomn"^ dation note of an individual and applied the money to the payment of the debt, promising to protect the note or to repay, relief wag given in this Court against the corporation upon a breach of the pro* mise. And if the corporation could have been compelled to pay the debt the person so giving his note will be entitled to stand in the place of the corporation creditor. Jiurnham v. Peterboro, 8 Grant, 866. PRIORITIES. A. being accomodation endorser for B. for a large amount, obtained from B. by way of indemnity, a confession of judgment, upon which judgment was entered up and duly registered. C. also recovered a judgment against B. which was registered subsequently on the same day contemporaneously with the confession. B. also assigned to A, ' », EQUITY DIGEST. T09 e duo at sub* 80 allcgationR "••bliahcd lant by advcr- McMichad o. the sale of pro- such authority age given for io)'*v received . not pub- ^^ to have s agent on bis to receive any good payment. Grant, 40. it is their ad- an acconiP'" to the payment jpay, relief was reach of the pro- jlled to pay the stand in the rboro\ 8 Grant, mount) obtained jnt, upon which ilso recovered a itly on the same assigned to A, all his personal chattels and effects, and all debts duo him. On hear- ing of the assignment C. notified A. that he would be holden account- able for what was assigned to him, but A. nevertheless permitted B. to use the chattel property and to receive the debts just as if no assignment had been made whereby C. was deprived of any benefit which he might otherwise have derived. On the usual reference to the Master in a suit for foreclosure of lands of B. A. and C. both proved their debts and in settling priorities the Master reported A. prior to C. On appeal by C. from the Master's report, the Court declared A. to be a trustee of the property assigned for C. and that having by his negligence permitted the property to be lost, A. ought to be postponed as to the lands the common fund of both. Hunt- ingdon i\ Van Ihorklin, 8 (Jrant, 421. PRO CONFESSO. Pro coitfenso note. A note pro con/esgo was set aside where the afiidavit of service of office copy bill was shewn to be imperfect and insufficient. Gordon V. Johnson, 2"Cham. Rep., 210. Pro confcf^m order. It is irregular to take an order j)ro con/esso, where zpro confeaso note stands in the registrar's book unvacatcd. Strict service of an office copy of the bill duly stamped will be re(iuired before an order pro eonfesso can regularly issue. Cameron v. Upper Canada Min- ing Co., 2 Cham. Rep., 215. Pro eonfesso order against a married woman. An order will not be made to take a bill pro con/esso against a married woman without her having had an opportunity to answer separately. White v. Chunh, 2 Cham. Rep., 203. PURCHASER. Purchase at sale under order of Court — Interest. A purchaser at a sale under order of this Court was held liable for interest from the ti" iC of his purchase although delay had taken place in perfecting the title for which he was in no way responsible, such delay however not being caused by any fault of the vendors, the con- dition of sale stipulating for the payment of interest from the day of sale. Semble, in the absence of such stipulation in the conditions of sale, the Court would relieve the purchaser from the payment of in- i: Wl m 710 EQUITY DIGESTS terost where a delay was not of hi? causing. Such a stipulation in the conditions of a sale is not to be approved of. In re Thomson — Biggar v, Dicknon, 2 Cham. Rep., 196. PURCHASER FOR VALUE WITHOUT NOTICE. It is a clear and well settled rule of this Court that equity will never deprive a purchaser for value without notice of any advantage he has arising from eitber a legal or equitable title, or even from mere possession, although as between or amongst mere equitable claimants, it will enforce the rights of the prior against the subse- quent claimants in point of time. Mitchell v. Gorrie, 6 Grant, 625. A. held a bond for the convsyance of property and assigned it absolutely to B. but for the purpose of security only, B. sold the pro- perty to C. and C. sold to others. C. before his purchase had no notice that the bond to B. was a security merely : A. having become bankrupt his assignee applied to redeem and was held entitled in the absence of any evidence, that C. was a purchaser for value ; but the Court directed the cause to stand over with liberty to C. to give such evidence upon payment of costs , unless the plaintiff should desire also to give evidence in which case the cause was to stand over with- out costs. Cherry v. Morton, 8 Grant, 402. RAILWAY COMPANY. .By the Statute 16 Vic. ch. 169, municipalities are authorized to pass by-laws sanctioning the construction of branch railways of limited length " under such restrictions as the councils may see fit." Acting under the provisions of this Statute the corporation of the City of Kings- ton passed a by-law, authorising the Grand Trunk Railroad of Canada to construct a branch line running on and across certain streets of the city to the waters of the harbour ; and articles of agreement and specifications were drawn up and agreed upon between the parties, under and in conformity to which the company proceeded to con- struct their branch line. When the works were well advanced and nearly completed the corporation disoovered that the probable effect of the works being carried out in the manner proposed would be to produce a large body of stagnant water, which would in all likelihood injuriously affect the health of the city, whereupon they required the company to fill in this space or to desist from the completion of the works, with which requirements the company refused to comply and tke corporation thereupon filed a bill seeking to compel the company itipulation in 196. [OTICE. it equity will iny advantage or even from lere equitable ist the Bubse- 6 Grant, 625. id assigned it J. sold the pro- robase had no having become entitled in the ralue; but the etc give such should desire tand over with- ) authorized to wajs of limited ee fit." Acting le City of Kings- Iroad of Canada rtain streets of agreement and sen the parties, oceeded to con- 1 advanced and I probable eflfect ed would be to in all likelihood ey required the impletion of the I to comply and »\ the company EQUITY DIGEST. 711 to perform the works according to such views of the corporation. At the hearing the Court refused the relief prayed and dismissed the bill with costs. Oit]/ of Kingston v. The G. T. R. C. of Canada, 8 Grant, 535. REDEMPTION. Account The equity of redemption in mortgaged lands was offered for sale under execution at law and the mortgagee bid off the property at $200, but the sale proved to be inoperative. Held^ that the mortgagee could not add the amount so paid to the amount of his mortgage debt. Where the Court is called upon to set aside a tax sale which is equally void at law and in equity, the Court does so, if at all, only on such terms as are equitable. Paul v. Ferguson, 14 Grant, 230. REGISTRATION. Held, reversing the judgment of the Court below that when the memorial follows the description which in the deed itself is sufficient registration thereof is effectual. Reid v. Whitehead, 2 E. & A. 580. Add reference to married woman. REGISTRY LAW. Comtruction of The 66th section of the Registry Act (1865) which enacts that " no equitable lien, charge or interest affecting lands shall be deemed valid in any Court in this Province after this Act shall come into operation, as against a registered instrument executed by the same party, his heirs or assigns ; and tacking shall not be allowed in any case to prevail against the provisions of this Act " — is not retrospec- tive. R. McDonald v, A. McDonald, 14 Grant, 133. REGISTERED JUDGMENT. Lands claimed to bo affected by a registered judgment should be set out inthe bill. Glass v. Freckelton, 8 Grant, 522. See also, though the law is now obsolete, Lewis v. Jones, 8 Grant, 671. - 712 I EQUITY DIGEST. RETAINING FEB. A retaining fee paid by ezeoutors to their solicitor in an adminis- tration suit, may, under certain oircumstanoes, be a perfectly reason- able disbursement. Chiskolm v. Bernard, 10 Grant, 479. REVIVOR. See order of Revivor. Appendix. RIGHT OF WAY. Way of necessity to grantee -over tands of grantor. A. being^entitled at his own expense to make a road for himself across B.'s farm at the most convenient point, it was agreed between them that A. should use B.'s road on certain terms. Held, that this agreement was a mere license, not coupled with any interest or inci- dent or auxiliary to a sale or grant, and was therefore revocable and being revoked at law, no equity arose to interfere with A.'s legal right on the ground of encouragement on the part of the one, or for- bearance and irreparable inconvenience on the part of the other. Semble (Per Esten, V. C.) That a way of necessity to a pur- chaser of land is the one most convenient to the grantee, by the shortest cut over the lands of the grantor ; (Per Spragge, V. C.) that the right to select such a way of necessity is qualified by the effect which the selection of a particular line would have upon the interest and convenience of the grantor. Fielder v. Bannitter, 8 Grant, 257. SE'JORITY FOR COSTS. 29 nable delay Court will order the investigating : itofthepnrchaN as filed by a v«n- of the originil be produced or loney would b« Mwn. Crooki «. he conveyance of mrohaser, instead t iostituted pro- f paid, partly to reupon a biil wai to restrain the I Court made tin jT coats up tothi r. the eontraot, treating the water and the use of the dams and boomi u sold with the laud ; the decree to provide for this, with liberty to the parties to apply from time to time. Hinckt v. iicf uy, 14 Grant, 283. LacJies. The intestate contracted with the defendant, George Brown, for the purchase of a village lot in Bothwell and paid part of the pur- ohase money. The vendor afterwards agreed to erect certain bttild« ings on the premises, for which t e purchaser was to pay by instal- nents, and the vendor was to hold possession and receive the renta Boanwhile on account. The purchaser having made default died intestate leaving no other means. The heirs lay by for a number of jears and until oil was discovered near Buthwell, and property had in eonscquence risen in value and they then filed their bill to enforoe the purchase, but the Court dismissed the bill with costa on the ground of laches. Walker v. Brown, 14 Grant, 237. STATED ACCOUNT. A debtnr having executed a mortgage in favor of his creditors, Noiting that he waa indebted in a sum named, and a suit to foreclose this mortgage having been subsequently instituted, a reference to the Muter was directed to tbke an account of what was due ; in taking which the Master required the production of the accounts on the foot of whioh the mortgage debt was created and the usual four day Older had been issued for non-production. Held, on a nv>ti(>n to set this order aside, that the parties were prima facie bound by the imount stated in the mortgage as being the true debt, and that the Master in the absence of evidence to impeach the statement in the Bortgage could not go behind it. Follick v. Perrjf, 5 Grant, 591. SWEARING ANSWER. The fact that an answer had been sworn before a commissioner who had been formerly concerned as solicitor in the cause, was not hdd to be ground for taking the answer off the files ; but where an iBBwer had been irregularly transmitted, it was ordered to be re> iworn within a given time, with costs against the defendant. Oor- (bn V. Jvhnton, 2 Cham, iiep., 205. TAXATION. re sufficient wattr lit by the vendor _ fio performanototl Whan an order for taxation had been obtained ex parte at the [I If r' 716 EQUITY DIGEST. initanoa of one of two client! who had jointly retained the aolieitora, whoM bill it was sought to tax, such order was set aside as irregular- ly obtained. lU Btechtr Barker and Street, 2 Cham. Rep., 216. TAXES. Sale for taxea — Mortgage — Redemption. The fivb years for whioh lands are to be in arrear for taxes before they are liable to be sold, must be before the delivery of the treas- urer's warrant to the sheriff. Land haying been sold for taxea, a party interested therein as mortgagee applied to the vendee of the sheriff to be allowed to pur- chase on the ground of his having an interest in the land, and which he was permitted to do, his only interest in the land being as mort- f«gee. Held, that the purchaser could not afterwards set up this title in opposition to the mortgagor's claim to redeem. Although a mortgagee may as well as a stranger, purchase lands of which he is mortgagee, still if he purchases as mortgagee and makes his interest in the land a ground for being allowed to purchase, ha cannot afterwards set up the title thus obtained against the mort* gagor's right to redeem. Kdlt/ v. Macklem, 14 Qrant, 29. TITLE DEEDS. PosuBsion of— Mortgagor and mortgagee. The mortgagor after foreclosure, having retained the title deeds deliv- •red them to a third party to whom he had sold, whose solicitor claimed a lien as against such third party and declined to deliver them to the mortgagee, on a motion for that purpose an order wu made for their delivery. Sttnnett v. Aruyn, 2 Cham. Hep., 218. TRUST. Lachet, The plaintiff, a squatter on the Crown Lands, made an assignment thereof to the defendant, to enable him to obtain the patent for the plaintiff. There was no writing shewing the trust, and the defendant procured the patent to be issued in his own name, and thereupon the defendant induced the plaintiff to release his interest in the estate for less than half the value. There was a great inequality between the parties, ia respect of their busineii capacity and otherwise, and • ■oli«itori, 18 irregalar- tep., 215. tazM befort of the treat- EQUITY DIQEST. 717 the defendant failed to shew that he had given the plaintiff all the inforaation he was entitled to, or that the plaintiff had made the aa- •ignment without preisure and inflaenoe. The Court Held that the plaintiff was entitled to redeem, on payment of the amount of the de- fendant's advances, although seven years had elapsed before the plain- tiff filed his bill impeaching the transaction, the excuse assigned for the delay being his poverty ; it appearing that the parties could be restored to their original positions without loss to the defendants. Badjf V. Eeenan, 14 Grant, 214. d therein as owed to pur- d, and which eing as mort- p this title in rchase lands of ee and makes ) purchase, he inst the mort* 29. [tie deeds deliv- rhose solicitor aed to deliver i an order wu . Rep., 218. I an assignment patent for the d the defendant 1 thereupon tho it in the estate quality between otherwise, and TRUSTEES. Aaaignment of decree. Trustees made payment to one class of creditors over whom another class of creditors were entitled to priority, without first pay- ing or retaining sufficient to pay the prior class ; and a suit for the administration of the trust estate having been instituted, the credit- ors, who had received such payments were ordered to repay what they had erroneously received, and the unpaid creditors were held entitled to a lien on the trust funds in Court, in priority to the dums of the trustees and all subsequent creditors for debt and costs. Where a decree by mistake gave a trustee priority in respect of a debt due to him by the estate over claims of certain parties who were entitled to priority over the trustees. Held on an application to correct the error, that an assignment for value executed by the trustee after the decree was no answer to the application and that the assignee took subject to all the equities to which the trustee him- self was subject. Wood v. Brett, 14 Grant, 72. Principal and Agent At a sale of lands under a writ of execution, the nephew of the execution creditor, a person without means, attended at the sale and bid off the property ; and on a subsequent day, produced to the sheriff the receipt of the plaintiff in the writ for the amount bid at the sale and paid the Sheriff bis fees, who thereupon conveyed the lands sold to the nephew, who was allowed by his uade to retain the title in himself. The uncle subsequently agreed for the sale and conveyance of this land to a purchaser who made default in complet- ing the bargain, and the nephew wrote to his uncle pointing out the proper proceedings to be adopted to compel the purchaser to com- plete the eontraot. The unole died widioui any further prooeed> 1 1 i 718 EQUITT DIGEST. iogs in respeet of suoh contract, having, by his will, doTiMd tht property. The nephew, after the death of the uncle set up a oLtim to be entitled to the property absolutely. On a bill filed by the devisee against the nephew the Court declared the defendant to be a trustee and ordered him to convey to the plaintiff. McDonald «. McMiUan, 14 Grant, 99. TRUST ESTATE. Payment for improveTnents. Where trustees with power of sale had in good faith but erroneoiu. ly made a conveyance of a portion of the trust estate to one of the €etttti» qui trutt for the collateral advantage to the whole property to be derived from certain buildings and improvements to be made on the part conveyed thereon, thus committing a technical breach of trait; upon discovering which the grantee joined with the troiteei in a conveyance of the whole trust estate for value upon an agree* ment entered into between the parties that he should be paid such aum in respect of his improvements as the Court might consider him entitled to, and thereupon filed a bill for that purpose. The Oourt under the circumstances directed the grantee to be allowed suoh sum aa it should be made to appear the improvements had enhanced the talue of the whole property, or the price of the buildings and other improvements made thereon, whichever should be the lesser in amount, and referred it to the Master to ascertain the amount; although the rule is that in suoh oases payment for improvements will not be allowed at the instance of the party making them. Pegley v. Woodi, 14 Grant, 47. UNDUE INFLUENCE. Oua/rdian and ward. An infant entitled to real estate was brought up principally in the ftmily of her uncle from the age of eleven months, until her marriage after attaining her majority. Previous to her attaining twentyr«aoh of BtnutMS an agrM* paid suoh aider him rhe Ooart sttoh suni aooed the and other in amount, lot^h the ill not be V. Woodt, itX\j in the [er marriage bwenty*one, I him one of [hat he had lots. After liM ao ^Ten Imnch more maoh leie The oonToyanoe was set aside as having been obtained by nndne ioflnenoe although six years had elapsed between the ezeoution of the deed and the institution of the suit impeaching the transaotion. MeOonigal v. Storeif, 14 Grant, 94. VENDOR. Vendors lien — Insolvency — Sale by Sheriff. Land subject to a vendor's lion for unpaid purchase money wu eold nnder execution at sheriff's sale to a purchaser without notice. The execution debtor subsequently repurchased the land from the aheriff's vendee in the name of a third party, who conveyed to a brother of the debtor in trust for the latter, who having become in- aolvent, made an assignment under the Insolvency Act of 1864. Held, that the vendor's lieu attached on the lands in the hand of the assignee : but temhle, that the sheriff 's vendee would have held firee from the lien ; though, if the execution creditor had himself be- come the purchaser at Sheriff 's sale, he could have so held the land, free from such lien though ignorant of the latter: quaere. Van Wagner v, Findlay, 14 Grant, 53. Vendor and purchaser — Right of parcliase — Order for pos- eesaion. The defendant, who was entitled to purchase land had been guilty of default in paying the purchase money ; had failed to erect a new MW mill on the land, as stipulated for ; had allowed the saw mills already thereon to fall into disrepair and had been cutting and re- moving the timber — so that the saw mills were in such a condition, that they would become utterly lost to the plaintiffs if the defend- ant was allowed to retain possession, and that the saw mills and tim- ber oonstitnted the almost entire value of the mortgage security ; Heldf that the plaintiffs were entitled to an order for possession in eaae the defendant did not pay the over due instalments in a month, withont prejudice to the plaintiff's right to enforce the agreement for sale. Fhilipe v. Preston, 14 Grant, 67. Vendor's lien — Practice — Examination of defendant. Ooe of two partners on retiring from the partnership, conveyed to Uie remaining partner all his interest in the partnership lands, mill and stock in trade, who gave tho retiring partner his promissory note for £500, payable on the 1st September 1867, agreeing at the same time, that in case of his cffeotiog a sale of the premises before that time, to pay the noto though not due. There was no ovideuce of any 4. f 720 EQUITT DIGEST. expren •greemant for lien on the property utigned : Held, that the oiroomstftnoes were euch as to n^ative the retention of any vendor's lien hy the retiring partner. Where a defendant haa been examined on his answer, the answer and examination may be read in connection and used as an affidavit in support of a motion for decree. Mathert v. Short, 14 Qrant, 254. VENDOR AND i-URCHASER. Purchase for value unthout notice — Professional adviser Notice — Registered title. A testator, tlie roistered owner of the property in question, gav* an annuity to his wile, and charged it on his real estate. His heirs being also his devisees, did not register the will, and made a partition of the property as heirs. One of the heirs who was an attorney sold part of his share to P., the latter employing no other attorney in the transaction, P's interest afterwards passed to the defendant M. The widow filed her bill to enforce her annuity against this property and M . set up that P. was a purchaser for value without notice. Held, that P's vendor was not his attorney so that his knowledge of the charge could be imputed to P. and the Court not being satisfied with the evidence of express notice, dismissed the bill with costs. Rykert v. Miller, 14 Grant, 25. Shewing a good title. A vendor does not shew a good title by producing and furnishing to the purchaser an abstract, shewing on the face of it a good title ; he does so only when he verifies such abstract. Granger v. Latham, 14 Grant. 209. VENDITIONE EXPONAS. See Con. Stat. U. C. 280. VOLUNTARY DEED. Cloud on title. As against a purchaser for value a voluntary deed though regis- tered is void, and as this objection will avail the purohacer in any pro- ceeding adopted either by or against him, this Court wi 1 not ioter- fere to remove the registration of the void deed as a cloud on the title. Buchanan v. Campbell, 14 Grant, 163. EQUITY DIOBST. 721 :^^j !, that th« J vendor*! he answer in affidavit 14 Grant, VOLUNTARY SETTLEMENT. KsriR TO Skttlemknt. 1)*; ' I adviaer estion, gave . Uia heirs e a partition ittorney sold orney in the nt M. The perty and M. Held, that )f the charge ied with the 9. Rykert v. id furnishing good title; ;r V. Latham, though regis- ifer in any pro- wi I not inter- cloud on the WILL. CottstruAition of — Frtcatory dctHse. A testator by his will devised thus, ** all the residue of iny pro- perty real and personal, 1 devise to iny wife requesting her to will the same to our children as she shall think best." The widow devised the whole of the property to one child out of a number. Hdd, that the words used wore directory not precatory only ; that the power reposed >n the widow was not properly exercised, as she was bound to divide \q property among all the children, although she might, ia her direction give personalty to oae and realty to another. Fin- lay V. Fellows, 14 Grant, 66. Conatriictlon of — Statute of Limitations — Posseaalon of part. A will gave land to the testator's heir-at-law for life with power to appoint the same to one or more of his sons ; and declared that the devisee (his heir) was not to alien or mortgage the lot ; and that it was not to be attachable by his creditors : quoere, whether this power was a naked power, or created a trust in favor of the devisee's sons. To prove title by length of possession, the plaintiff shewed that a person under whom he claimed, had, at an early date, cleared part of the lot in question ; but there being no evidence that he did so under any claim of right, it was held that such clearing was not oon> gtruotively a possession of the rest of the lot. McMatter v. Mormon, 14 Grant, 138. Construction of— Residuary estate. The testator left two unsigned and undated scraps of paper on one of which he had written. " I leave the whof of my property (on one line) to Mr. Brown Townhead, Arbuthnot, by Fourdoun, Scotland, $2000 ; " and on the second scrap of paper he had written : " I give Peter Crann $500 for himself," which were admitted to probate as the last will of the deceased. Held, that there was an intestacy as to the residue of the personalty over and above the $2,500 mentioned m these bequests. In re Nehon— McLennan v. Wishart, 14 Grant 199. WRIT OF ARREST. Setting aside. The Court in an alimony suit oh a motion to discharge the de« 4s i^;- 722 EQUXTT DIGEST. fendant from •nest under a writ of arrest, will look into the merite of the oaae so far as to enable it to judge whether the {daintiff hu reasonable grounds to expect to succeed in her case, and in the aboenoe of her shewing such fair and reasonable grounds or in the event of the defendant displacing the prima facie case made by her on obtaining the writ, he will be discharged. A writ of arrest had been granted on the affidavit of the plaintiff, alleging violence and ill-treatment on the part of the defendant and shewing that the defendant had advertised his stock and farming im- plements for sale. A motion was made to set aside this writ, and the violence and ill-treatment were denied. The plaintiff was shewn to be a young robust woman, the defendant an old man of 68 years, and the conduct of the plaintiff to have been violent and very im- moral and unchaste. On the denial of the defendant of any inten- tion to leave the province and under the circumstance above stated, the writ was ordered to be set aside. Maephenon v. Macphenon, 2 Cham. Rep., 222. the merito aintiff hu nd in the I or in the MJe by her he plaintiff, tndutt and farming im- 8 writ, and Bf was shewn of 68 years, d very im- any inten- ibove stated, acphtnon, 2 LIST OF SUBJECTS. PAGE. Abandoned Motion 9 Abatement 9 Abortive Sale 10 Absconding Debtor 10 " Defendant 10 Absent Defendant 12 Absent Defendant's Act 13 Absolute Deed 13-57 Abstractof Title 13 Acceptance of Title 13 Acceptor and Drawer 14 Accommodation Acceptor... 14 Accord and Satisfaction 14 Account 13 Accounts 15 Acknowledgment of Debt 15 Ac(]^uiescence 16-57 Action at Law 15 Acta 15 Adding Parties 16 Adding Plaintiffs 16 Addition and Description of Parties to a Petition 16 Administration 16 " Order 22 « Suit 23 Administrator 24 Admission of Evidence 27 Advance 27 Advertising 27 Advertisement 27 Affidavit 27 Affirmation 28 Agent 29-57 Agreement 29-57 Alien 30 Alimony 31-67 Allowance 37 Amending 37 " Decree 41 Amendments 41 Ancient Document , 46 Annuity 46 Answer 46 Ante-Nuptial Settlement 48 Appeal 49-56 Appealed Cat^es 64 Appealed Questions and Sub- jects 57 PAOI. Appealable Order 67 Appearance Abolished 60 Application of Insurance money 60 Application of Payments 60 Appointment 61 " of Judges and Officers of Court 61 Apportionment of Costs 61 " of Payments.. 62 Arbitration 62 Arbitrators 64 Arrest 65 Articles to discredit 65 Assessment 65 Assignee 66 Assignment 6G " by Devisee 72 *• of Judgment 72 Attachment .... 72 " of Debts 74 Attaching Order 74 Attorney 74 " and Client 57-74 " General 77 Auctioneer 77 Award 78 Bail 80 Bank 81 " Agents 82 " Cheques 82 " Managers ... 82 " of Upper Canada 83 Bankrupt 83 Bankruptcy 83 Bidding 84 Biddings 84 Bill of Complaint 84 " of Costs 86 " of Exchange 86 Bills and Notes 86 Bill to change Trustee 87 Bond 86 " for Security for Costs. . . 87 Bocks, Appeal, Ac 87 Breach of Covenant 87 " of Injunction 87 " of Trust 88 Bridges,construction of by rail- way Companies over Bivtrs 88 LIST OF SUBJECTS. 726 rAOi. .... 5T 60 !e money 60 atB.... 60 61 res and .... 61 B 61 ments . . 62 .... 62 .... 64 ' 65 .... 66 ■■ 65 .... 66 .... 66 ee! 72 ent 72 .... 72 ;■■■ 74 .... 74 .... 74 57-74 .... 77 77 .... 78 ... 80 . . 81 ... 82 ... 82 .'...... 82 tiada. . . • 83 ... 83 ... 83 '"" .. 84 ... 84 ..84 ..86 ■*""... 86 .;; 86 itee 87 86 )r CoBtB. . . 87 ..87 t.::::...- 87 n of by rail- over Bivtra 88 PAOI. Brief 88 Building Lots 89 " Society 89 By-Law 90 Canada Company 90 Carriage of Decree 90 Cancellation of Deeds 90 Certificate of judgment 91 " of Register 91 Cestui Que Trust 91 Chambers 92 Chancery Act, Uth Clause of 92 Chancery Sale 92 Change of place for Payment of Mortgage Money (52 Changing Solicitor 92 " Venue 93 Charge and Discharge 93 Charges 93 Charitable Uses, Void Devise to '... 93 Charities 93 Chattel Mortgage 93 Chose in Action 95 Chureh Temporalities 96 Clerical Error 95 Cloud on Title 96 Co-defendant 96 Co-habitation 96 Collateral Issue 96 " Security 96 Collector 98 Collusion 98 Commission 98 Committee 99 Committing 99 Compensation 100 Composition Deed 101 " with Creditors.. 101 Computation of Time 102 Conditional Bequest 102 " Devise 102 « Sale 102 Conditions of Sale 102 Condition^ precedent 103 Condonation 103 Confidence 1 j3 Confidential Relationship 103 Conjugal Rights 103 Consent 103 Consideration' 104 Consolidated Municipal Loan Fund 105 Construction 106 Constructive Notice 105 Contempt 106 PAOI. Contents 107 Contract 107 " not under Seal 109 " to Re-build 109 Conveyance 109 " in Consideration of maintenance 113 Co-Tenancy 124 Corporation 113 Corporator 116 Costs 116 County Court 124 Court' 126 " of Chancery 126 " of Error and Appeal.... 127 CoA'enant 127 " for further insurance 127 Creditor and Debtor 127 Creditor's Bill 127 " Suit 128 Cross Examination 129 Crown 131 " Debt....; 131 •< Grant from the 131 « Lands 131 '< Patent 133 Cruelty 135 Cutting Timber 135 Damages 135 Damming River 136 Day of Payment 136 " to shew cause 136 Death of Vendor 136 Debentures. 136 Debt 137 Debtor 137 Debtor and Creditor 137 Debts 138 Decisions Appealed from and Affirmed, Reversed, or Re- stricted 138 Declaration of Right 143 Decree 143 Dedication 146 Deed of Separation 148 Deeds 149 Deed of Gift 155 " 60 Year's Old 165 " Quit Claim 156 Defective Title 166 Defence at Law 165 Deficiency of Quantity of Land Sold 156 De InteresseSuo 166 Delay 166 Delivery of poaseiBion 166 i{i 726 LIST OF SUBJECTS. FAOS. De Lunatioo 168 Demurrer 168 Deposit 163 Deposit of Title Deeds 163 Depositions 163 Deputy Registrar 164 Descent 154 Description of Lands 164 Desertion 164 Devise 164 Delapidatious 166 Diligence, Want of. 166 Discharge of Surety 166 Disclaimer 166 Disclaiming 166 Discovery 166 Discretionary Power 167 Dismissing Bill 16? Disputed Title 173 Distribution 173 Diversion of Highway 173 Division Court 173 Division of Profits 173 Divorce 173 Domicile 173 Donatio Mortis Causa 173 Donor and Donee 174 Dormant Equities 174 Dower , 177 Drunkenness 179 Duress 179 Easement 180 Election 181 Endorsement 181 Engineers 181 Enlarging time for payment.. 181 Enrolling Decree 181 Entitling Affidavits 182 Equitable Asssets 182 " Assignment 183 " Attachment 183 " Defence 183 •* Estate t 184 " Execution 184 " Inheritance 184 *' Interest in Lands... 184 " Mortgage 186 " Plea 186 Equity of Redemption 186 Error and Appeal, Court of... 188 Esplanade Acts 188 Estoppel 189 Evidence 189 ExAminatioa 196 " of Defendants... 197 VAOC. Examination of Client, as to debts &c 197 Examination oi Plaintiff by Defendant 198 Examination of Parties 198 Exceptions 198 Excessive Price 198 Exchange of Lands 199 Execution 199 " Creditor 199 " of Conveyance 200 Executor 200 Exhibits 209 Ex Parte Application 210 False Pretenses 210 " Representations 210 FatherandSon 210 Felling Timber 211 Femme Covert 211 Fees 211 Fiat on Petition 211 Fieri Facias 211 Final Order 212 Fire Policy 216 Fixtures 216 Floating Balance 217 Foreclosure 217 Foreign Affidavit 226 " Commission 226 Forgery 226 Fraud 225 " on Creditors 226 Frauds, Statute of 227 Fradulent Assignment 229 " Conveyance 230 '' Judgment 236 " Misrepresentation.. 237 " Influence 237 Fund in Court 237 Further Directions 238 Garnishee Order 238 General Orders 239 Generpl Relief, Prayer for.... 242 Gift 242 Good Friday 242 Grand T.R. Co 242 Grant fVom the Crown 243 Guarantee 246 Guardian ad litem 246 Habeas Corpus 249 Hearing 260 Heir and Divisee Commission 260 Heirs 260 Highway 261 Husband and Wife 251 >»v w LIST OP SUBJECTS. 727 If' TAWt. u to 197 5 by 198 198 198 198 199 199 199 e.... 200 200 209 210 , 210 210 210 211 211 211 211 211 216 216 217 217 .... 225 .... 225 226 .... 225 .... 226 .... 227 .... 229 230 236 tation.. 237 237 237 238 238 239 rfor.... 242 , 242 242 242 H 243 246 246 249 250 imisBioQ 250 , 260 251 261 PAOE. Identity.' 261 Imbecility 252 Improvements 252 Improvidence ; 254 Income 254 Incorporated Com pany 254 Incorporeal Freehold 255 Incumbrance 255 Indemnity 256 Independent Covenant... 256 Indian Lands 256 Indorser 257 Infants 257 Infant.... 266 " Defendant 266 ♦' Plaintiff 266 Inftnts Estate 266 In forma pauperis 266 Informally Executed Ingtru- ments 266 Information, Form uf 266 " 267 Injunction 267 Insanity 289 Insolvency 289 Insolvent. 290 " Act of 1864 291 " Administrator 294 Insolvent Debtor 294 Instalment 295 Instantaneous Seisin. 295 Insurance 296 Insuring 300 Interest 300 Instalment 301 Interim Alimony 301 Interim Injunction 301 Interlocutory Costs 301 Interpleader 301 Investigation of Title ........ 302 Investment of Money in Cvourt 302 Irregularity 302 Issue 303 Joint Stock Companies 303 Joint Tenants. 303 Judgments 303 Judgment Creditor 304 Judicial Opinion 308 Jurat to Affidavit 3o8 Jurisdiction 308 Laches.... 309 Landlord and Tenant 309 Land PatentH 310 Lands and Goods 311 Land Scrip 311 Lands improperly Time... sold. PAOX. r-r- •• 311 Lapse of Time ^ an LatentDefect 311 Law ; 311 Law Stamps 311 Lease 311 Leave '314 Legacies .' 316 Legal Estate 3ig Lessee 315 Lessor and Lessee 31 g Letters.... 317 Letters Rogatory 317 License to Dig 317 Lien ■-. •••^ 318 Limitations, Statute of 321 Limitation of Time, for bring- ing Action 322 Limited Partnership 322 Lis Pendens 323 Locatee of Crown 32^ Losses 324 Lost Deed 09^ /'Will If, Lunacy 325 Lunatics 325 Lynd hurst' 8, Lord Act 331 Maintenance 331 Marriage 331 ** Settlement 332 " with Deceased Wife's Sister 333 Married Woman 334 Marshalling Securities 33g Master 333 Mister's Decision •.. 339 " Office 339 " Report ...; 340 Member of Parliament 342 Merger'. 342 Mesne Incuniberance 343 Mineral Lands 343 Minors 344 Mill Dam 344 " Site .344 Misapplication of Rates 444 Misconduct 344 " of Executor 344 Misconception 344 Misjoinder 344 Misnomer 345 Misrepresentation 346 Missing Deed 346 Mistake 346 Misunderstanding 346 Wi M I 7m LisTQr.ayBjBCTS.. Money in Court 34G Mortgage, Mortgagee, Mort- gagor 347 Mortgaged Premiers 385 Mortmain Acta 385 Mpltil'ariouauJes 386 Mimicipal Council 386 .'< Councillors 386 Manicipality 387 Municipal Loan Fund 388 Mutual Insurance Companies 388 Navigable River 389 NeBxeat 389 Npglect -^-'O iq^egiigence or Misconduct of •Administrator 390 Niw Trial 390 Next Friend 390 •<' of Kin 391 Note; 301 Notice •^*''' i^ of Defective Title 395 Nuisance 395 Nttlljty 3% ObW«ciion of River 396 Occapation Rent 396 Ofleneive Trade 396 Offices Copies 396 Officer of Corporation 397 Onueof Proof- 397 Opening Biddings 397 Opening Foreclosure 398 » Publication 398 Oppression 400 Order Ex Parte 400 " of Course 400 " ■ Nisi 400 i\ of Conncil 400 " Pro Confess© 400 »' ' to Elect ., 401 4* [ to Commit 402 OrdUian^e Lands 402 Ore.Tenus 402 Outstanding Lease 4o2 Ov.erflowing Land ., 403 Veifol Agreement 403 *<_ Contract 403 Pajoi Evidence 403 Part Performance 404 Parties v.. 404 Pajrtition.. 413 Partners 416 Partu^rehip 416 , " Debts 424 Patent.... ..,. 424 PAOE. Patent Medicines... 425 " Right 426 Paying Money into Court 425 " " out of Court... 427 Personalty 427 Personal Confidence 428 " Estate 428 " Representation 428 Personal Skill 428 Petition 428 *' ofRight 421) Physical "Weakness of les^ator 429 Place of Payment 429 Plaintiffs Death 429 Pleadings 429 Pleaof Payment 436 Possession 43G Postponement of Examination •and Hearing 437 Power of Foreign Adminis- trator 437 Power of Appointment 437 " of Sale 437 Practice 438 Preemption 472 Preference 472 Premiums ...... 472 Presbyterian Church 472 Presentation 473 Presumption of Innocence ... 473 Pretended Title 473 Principal and Agent 474 *' IntGiest 479 " Surety 479 Prisoner 487 Privileged Communications... 487 Probate Court 487 Pro Confesso 488 " ** Decree 492 '' " Order 492 Production of Documents .... 492 Profits 496 Pro Interesee Suo. . 496 Promissory Notes 497 Property of Religious Institu- tions , 497 ProBser v. Edmonds 498 Provincial Frontier 498 Proving Deeds , . 498 Publication 498 Public Road 498 Public Securitiea .,.,,..... 498 Puffing at Auction ... ... 498 Purchase Money 498. Purp.haser /. . 499. Bt' Btjii mrn'mm WST OF 8UBJBCTS. 729 PAOB. Purehaser for Value without Notice 499 Parchaaer tTnder Decree ... 500 Purcuaaer getting Rid of Con- tract ... 501 Parcbaae of Equity of Redemp- tioii 501 Purchaser's Rights 501 Quieting Titles Act 502 Quitclaim 593 Railways ... 5Q3 Railway Company 504 RiXAi, Misapplication of 506 Reading Answer 597 Real £ itate 507 Re*borrowing 507 Re*building 5Q7 Receiver .... 507 Recei.'iijn of Agreement .... 510 Recital 611 Rectification of Deed .... ... 511 Rector — 511 Rectories.. 512 Rtdemptiou 513 Rcilivision of Estate 517 Reteree .................... 517 Reference 517 Retiirence as to Incumbrances 517 Reference as to Title 5I7 Reference by Married Woman 5iy Ref«>rming Deeds 5m Refunding Costs 51^ Registrar ot Court of Chancery 518 Registratioa ■ . 519 Registration of Deeds 520 Registration of Judgment. ... 521 Registered Judgmeuts 524 " Title 524 Registering Decree 524 Registry Act 525 Rcutaring 525 Religious Bodies 527 Remedy of Subject against the Crowa 527 Reuta 527 Repayment of Money 52 j Repeal of Patent 62j Replevin 626 Replication 52j Report 629 Re-Sale 62^ Rescinding Contract &'id Reserved i^id 53t} Reitdeuee 630 ReMdiuiy £«(«(• 6iO 4x raai. Re.«training Execution 630 Restitution of Conjugal Rights 531 "Sats .„, Retaining Fee [ SJ ReveHion rj* Reversioner (and Termor) ..',', kV: Revivor . r*' Revocation of Will .....*.'!.!! m* '* of Submission.... 539 Revoking Appropriation.... Jg Rigiitto Re.i:'urchase JS Riparian Proprietors Jg Kjad Companies ««; s*ie.... ::. gj ;; ofGrowingTimber.... Ss by Executors to Legatee 64J " of Reveroion I?? SawLogs JJJ 2»edl Wnata Sufficient...*.*..'* SJ! " of Court S« Second Suit ijj Secjudary Evidence ,[ gig siecret Bargain ^ Secretary ??• Secreury'a Order ..!.*.!!.'" Saa Security fjr Costs * * iT? Selling Timber ,*.* Jjl Separate Answer .... «ri . " Estate ::::.: Ill Sequestration ggj 3''"'*nt *.*. 6J2 Service ^tt Setting Aside Award.'.*.*.*.'."* ssa ;; ^" Deed ::l% 2«'off 669 Sectlement gj* Simple Contract Creditor*.**.*. 6(>2 Slieriit ggj SaerittV Poundage." !!*.*.*,*] 662 ** Return k^» " Sale .....* 6tf3 Ships and Shipping ^61 S jhcitor ........... I .. . JJI " and Client ..*.!!!*' 6(ig Solicitors' Bill 5^ _ ** Lien !*.'.*.*.* fitfS Soundness yf Mind 57© Specidc Bequest *.*.'.'.',', 670 Specidc PertL>rmance ...!**'* 670 Sumps *• „Qj Statu.* 13 ^.ix. Ca. 5 .* m U Vic. C«. 72 609 ISVicCklW. tfai m 730 LIST OF SUBJECTS. PAGE. Statute 16 Vic. Ch. 219 and 20Ch. 80 609 " 20 Vic. Ch. 56 609 " 27 Eliz.. 609 » of Frauds 609 *< ot Limitations 609 Staying Proceedings 609 Steamboats 609 Stockliolders 609 Stoppage in Transitu 610 Stop Orders 610 Style of Cause 610 Subpoena, . - , 610 Subiect ••• 611 Subsequent Incumbrances. . . 611 Substantial Improvements. . . 611 Suit Pending »' I SuDDlemental Answer 6l'A *^^ «< Bil! 614 Suppression of Material Facts 614 Surety 61* Surprise 614 Surviving Partner 614 Surrogate Court 614 Tackiug 616 Taxation 616 Tariff of Charges... 618 Taxes • 618 Tax Title 620 Tenants in Common 620 Tenant for Life 620 " inTail 621 Term of Years, 621 Timber 621 " Trade 621 Time 622 Time (Bssenct of Contract) . 622 Time (For De) nurring) 622 Time (To Redeem) 622 Title 623 Turunto Esplanade 624 TowDsLip Council 624 Trade 626 •( Fixtures 625 " Marks 626 Transmission of Papers 625 Trees 626 Trust 626 ♦• Deed 626 Trtstee .. 627 " Act 629 Trust Estate 629 Truets, Trustee, and Cestui Qui Trust 630 Trustee of Qaeln's College.. 639 FAOI. Ultra Vires. .. . (39 Uncertainty in Tenure 539 Undertaking to Speed ^39 Undervalue 639 Undue Influence £39 United States of America.... (42 University 642 Unnecessary parties 643 Unpaid Purchase Money .... 643 Unpatented Lands 643 Unseasonable Bargain 543 Unregistered Assignment .... 643 Unwritten Trusts 643 Usurious Contract 643 H«"'y. ••• 644 Vacation « 646 Valuable Consideration 645 Variation of Contract 645 Varying Deed . . 645 Vendee 645 Vendo r , . 645 Vendor and Vendee 646 Vendor's Lien 646 Vendor and Purchaser 650 Venue 656 Verbal Agreement 657 Vessels 657 Vestine Orders 657 View, Obstruction of 658 Void Devise 658 " Lease 659 Voluntary Bond 659 " Conveyance 659 " Deed.... 662 " Settlement 662 Volunteer 663 Wages 663 Waiver 663 " ofTitle 663 Warehottseman 663 Warrant 664 Waste 664 Watercourse 664 Way 664 Welch Mortgage 664 Widow 664 Wife 9i,i Wild Land Taxes 665 Wilful Default 666 Will 668 Witness 6D1 Writ of Arrest.... 683 Writs of Sequestration 883 Written Agreement 688 Writtaa iMtnuntut 688 FAOI. 639 639 639 639 639 «..•• 64S 642 643 7 .... 643 643 643 at.... 643 643 •••••• 643 •••t* o44 646 I 645 646 . • • • . 645 645 I ....>' • 645 , 646 646 r 650 , 656 657 65t 657 658 658 659 659 C ..... • 659 662 662 663 , 663 663 663 6.....•• 266 " " V. Weaton Plank Road Co 251-27? Austin V. Storey 369-379 Ausman v. Montgomery 456 AuHehrook Re . . 27 Babcock Re 18-164-314-673 Baby v. Miller.... 54138-140 679 " V. Cavanah 110 " V. Woodbridge 340 " V. Kent 483 " V. Kennan 717 Bagley v. Humphries .... 62-335 Baird V.White 40 Bailey V. Bailey 92-566 Baker v. Uanney 130 " V.Wilson.... 194-303-331 Baldwin v. Borst 159 " V. Crawford . 509-510-630 *' V. Duignan ........ 651 Ball V. Ballantyne 233 " V. Jarvis 371 Bank of British North Ameri- ca V. Matthews 46 " V. Rattenbury. 82-152-229 " V.Moore 307 " v.M'Donald 345 " V. Heaton. 609 wmm ^PF 78S LIST OF CASI&. FAOS. Bib) c'«f Upper Canada y. Wallace 63-316 II ▼.Scott. ..... 81.224-259 i< ▼. Brongh. 64-138.140.374 II ▼. Thomaa. fi4-138-234-306- 561-092 II V. Nichol no II Y. Beatty 524 II ▼. Shickluna 233 Buk uf Montreal v. Hatch ... 12 i» " V. Pfwer 37-41 II " ▼. Wilson 61- 377-fi4fi'565 It " V.Ryan 61 u " ▼. Ketchum 167 u « V. Wallace 167- 11 II II 472-490 " V. 307-624 anforth ... 215-222 139-243 314- . 54-139-661 185 .... 192-30S ton 401 65^ sty, Dio- ■^ 706 617 159 338 PAOI. Bowes T. CitT of Toronto 54-139- 38iS Bowcn ▼. Tamer 85-315 •• V. Fox 541 Bown y. Went 54-109.-142 Bowman v. Bowman — .....239 " V.Beckett 269 " V. Fox ...658 Boyd ▼. Wjlron 181 Brantford v. Grand River Naviga- tion Co . . 136 Bradley v. Wilson 679 . 337 .706 ,..478 114- r. V. ▼. V. V. V. Brandon v. Wheeler .... . " V. Elliott Bradburn V. Shanley Brewster v. The Canada Co 274 Brin^ham v. Smith 14-S4-53-139- 550-551 Brock V. Saul 398 Brockville v. Sherwood 505 Brouk V. Campbell 667 Brooke v. City of Toronto ... 695 Brogdin v. the Bank of Upper Canada 411 Brothers v. Lloyd 398 Bro^n V. Smart 55-139-142-479 Deacon 154 Baker 156 Sage 200-217-283 Perry 510 Fisher 538 Davidson 659 " Re 62-1.38-iai Brownlee v. Cunningham, 122-385 Brummell v. Wharin . . .284 Bruntikill v. Clark 653 Buchanan v. Kerby 60-3.34 *' V. Cunningham 233 " V. Dinsley ....235-23iJ " V. Tiffany 48.S " V.Campbell 720 Buckley V. Bowman 374 «• V. Rvan 523 " v. Wilson 698 Buckland v. Rose 562 Bucker v. Ansell 568 Buffalo and Lake Huron R. R. Co. v. Whitehead 55-139 Bull V.Frank 132 Bullen V. Renwick 50-427-637 Bunn V. Barclay 337 Burr v. Gam' ^ 64 •• V. Graham 276 Burford V. Lymburner... 214 ... - ...... ,..»AflV Burke v. Pyne. . . . ..,„ . , » * . ."^6* Burnham v. Burnham.;... 17.0-497 " V. Dcnistoun ..184 666 " v.Peterboro'. 70R Burns v. Chisholm ..*..172 *' V. The Canada Co. .... .590 Burton T. Oore District Mutual Fire Ins. Co .....292 Burrowes v. Hainey.. ........ .396-, Burgess v. Muma ...56& *° V. Howell 647 Cade V. Newhall 315 Cahuac V. Druie 280 Caldwell Es-tate Re .308 " V. Hall k Maxwell . 378 CallicottRe ■...-,.. 641 Cameron v. McRae. .......... S52 " V. Phipps 48-9 " V. McDonald ....23-660 " V. Bradbury ......122-662 «' V. VanBvery 169 " Re a Solicitor.. .....617 " V. Upper Canada Min- ing Co ....7.09- Campbell v. Oorham ■ 1.06: " V.Ferris 168 " V. Taylor 653 '« V. Campbell 671-525-52V- " V. Garrett 215 '« V.Smith 463 Canada Permanent Building Society v. Bank of Upper. Canada 89-281. V. Wallis 693 CannifTev Taylor S6R Carpenter v. the Commercial Bank 65-97-^9 " V. Wood 466 Carfre v. Vanbuakirk 189 Carney v. Boulton 42 Cartwright v Gray. V. Diehl Carter v. Dale Carr v. Carr Carroll v. Perth Carroll v. Hopkins . Carruthers v. Armour. 396 ... 416 . . . 471 ... 36 ... 387 304-44& Carson v. Carson 671 Casey v. Jordan 244. Cawthra v. McGuire • 285 Cavley v. Hoigson 384 Caesar's Will In re 106 Chapin v. Clarke l^V Cliance v. Henderson 1^9 Chalmers v. Pigott 99-644 I'^i 734 LIST OF CASES. PAOI. Chftttbers t. Chambers 266 ChunberUia v. Torrance ... .687 " ▼. McDonald ...693 Chandler r. Ford 6.32>634 Chantler v. Ince 651 Cheney v. Cameron 585 Cherry t. Morton 613-710 Chevalier y. Strong 592 Chisholm v. Barnard. ..205-636712 " T. Sheldon, 41-186-268 349-440-447-496-531-543 665-664 Christie V. Saunders.. 241-272-670 " ▼.Long 273 " r Dowker 368 " V. Johnston 639 '(Starch Society v. Crandell... 703 City Bank v. Amsden 41 " V. McConkey 11)3 " V. Maulson 628 City of Toronto v. McG i 1 1 . . . 471 " " V. Bowes .... ttHl City of Kingston ▼. the G. T. R. Co 711 Clarke V. Best 67 " V. Ruttan 326 " ▼. Uiiwke .... 15-1 98-345-640 " ▼.Little 194-354 •' ▼.Hall . 461 " ▼. McElroy 463 ■' V. Bitchey 101-486 " ▼. Bank of Montreal 86-562 " ▼. Manners 567 " ▼. Ebv 602-608 " InRe' 24 Clirk ▼. Barnham 434 Clarkson ▼. Kitlson Ill Clanc> ▼. Patterson 690 Cleveland v. McDonald ...412-432 Clouster v. McLean 467 Cloucit^n ▼. McLean 707 Clute V. McCaulay 353 Coates V. McGlashon 688 Coates V. Joslin 294 Cobinrg & Pelerboro' R. R. Co. T. Covert 461 Coebrane V. Johnson 503 Cockburn v. Gillispie... 435-485 Coekenour v. Bullock . . 373-518 Colborne v. Thomas 117-318-650 Coleman v. Whitehead 202 Coldwell V. Hall 363 Collins V. Swindle 387 Coleman ▼. Sherwood 664 Commercial Bank v. Elwood 122 PAOI. Commercial Bank v. Cooke 234- 307-333 «' " v. Bank of Upper Canada . . 81-97-376-692 " " T. Graham 455 " •' V. Poore.. 482 " " V. McCon- nell 588 Commander v. Gilrie .... 259 Congregational Church Pro- perty Re 543 Connolly v. Montgomery... 42-622 Connell V. Ciirran 124 Connor v. Bank o\' Upper Canada . . 160 Constable v. Gueet 2.33.359 Cooper V. Lane 566 Coot V. Macbeth 169 Cook V. Flood 9H " V. Gingrich 238 472 " V. Smith 274 " Walsh 445-126 Cooney v. Glrvin S.'ie Corbett v. Meyers 106-42f. Cornwall V. Henriod 220 '* V. Brown 352 Corporation of the United Counties of Mara and Rama V. Tlie Corporation of Ont. 386 Corrigal v. Henry 201 Cosseyv. Duck low 689 Coltingliani v. Boulton ... 108-583 Cotton V. Cameron 168 " V. Corbv 52-of)-139-15M63- 460-586 Cottle V. Cumniings 492 Counter v. Wylde •. . . 349 •* V. Commercial Bank.. 489 Coulson V. Sheeliey 471 Covert V. the Bank of Upper Can- ada n7-.Sy2 446 CozenB V. McDougal 50 Craige v. Craige 35 " V. Templeton 178-.332 " V. the Oore Diptrict Mutual Insurance Co 18.^ Craigie v. Proudfuot . ..... 471 Crandle v. Moon . . 194 Crawford v. Bradburne 39 " V. Meldrum ...55-1.S0-695 '• V. Pol lev 47 " V. McDJnagh 227 •' V. Wilkinson 241 •' V. Birdstall 247-693 •' T. Shuttock 287 1 LIST OF CASES. 7^6, VAOI. oke 234- ikof r-376.692 ham 455 )re.. 482 Con- 588 .... 259 Pro- 543 ... 4C-623 124 pper ..160 2o3-3o9 558 169 93 . . 238-472 274 ... 445-526 336 ...106-426 220 352 Jnited Rama ,f Ont. 386 ... 201 689 108-583 .... 168 39-1 51 -1 63- 492 ...... 349 Bank.. 489 471 Upper Can- 117-352446 50 ib ..178-332 trict Mutual 183 471 194 e 39 55.139-696 ....47 » ......227 , ... 241 ...247-593 287 VkOS, Crawford v. Armour 384 " V. Bingle 470 " V. Cooke 55U " V. Cronibie 610 " Calcutt 079 Creelman v. ClelforJ .... 240-258 Crooks In Re 557 *« V. Crooks 203-321-397-440- 441-454-609 •' V. Torrftuce 203-591 -SS-Se- 139 " V. Davis 228-583 " V. Street 320-541 " V. Watkins 321 " V. Glenn 426-591-714 " V.Smith 430 Crookehank v. Sager 556 Crynev. Doyle 490 Cull V. The G. T. R. Co. ... 506 CuUenv. Cullen 120 Cummin.J8 v. McFarlane 116-630 Cummins v. Harrison 188 Cummer V. Tomlinson 214 Cunningham V. Cunningham 112 •' V. Buchanan 282484 " V. Lystcr .... 486 CuDples V. Yoraton 657 Curtis V.Dale 112-129-291 Currah v. Rapelje 110-574 Curran V. Little 692 Cuthbertv. Cuthberl 636 Dftlton V. McNider 78-83 " V. McBride 588 Dallisv. Gow 221-223 Daly V. Robinson Oil Daniels v. Davidson 438-537 «• Re a Solicitor 617 Darby v. Greenless 603 Davidson v. Thirkell 49-201-341. .419-451 i' V. McKillop 144 •» V. Douglass 301 " V. Grange . 386-410-604 Hawke 74 Davidson 713 Snvder 135-671 Kennedy 31-288 •' V.Casper 80-42 " V. Bender 318 •' V.Clark <>iy Davy V.Davy 39-171 Dawson v. Dawson 601 Deauv. Lamprey l]f D« Gear v. Smith 649 D« Htrtel v. Supple 621 Davis V. " V. " V. " V. PAOI. Delesdernier v. Burton. . .... .262 Denison v. Devlin 9467 " V. Toronto 459 •' Kennedy 689 " Fuller 600 " V. Denison 642 Dennistoun v. Fyfe .37J Desjardins Canal Co ▼. 0. W. R. Co 65.139-606 Devine v. Griffin 227-678 Dewitt v. Thomas 596 Dexter v. Cosford 324 Day V.Day 17-128 Dick V. McNab 72 " V.Gordon 476 Dickson V. Draper 219469- " V.Cooke 287 " V. McPherson 480 " V. Dickson 496 Dickinson v. Duffel 232-648 Dickey v. Heron 308-601 Dixon V. Mills 240-460 Dix V. Jarmin 247 Donaldson v. Berry 344 *< V.Donaldson..... 641 Daremus v. Kennedy 460.630 Douglass V. Ward .. 210-236467 " V. Woodsid* 478 " V. Connor... 642 Dougall V. Lang 243 " V. Poster 274-620 " V. Wilburn 400 Dougherty v. Carson 672 Doupe V.Stewart 424 Dow V.Ward 642 Drake v. Bank of Toronto 82434* 620-646 Drewry v. O'Neil 703 Drummond v. Anderson 451-143 Dudley v. Bereay 383 Duft'v. Mewburn 438 Duffy V. O'Connor 555 Duggan Re... 325 •' V. M'Kav .533 Dumble v. The P. and L. C. R. R. Co 604 Dunn V. The Attorney Gsneral 130 *' V. Dowling 414 Duncan V. Geary 224*463 Dunovan v. Lee 318 Early v. M'Gill 109-197-601 EaHtman v. Eastman 391 Eccles Re 615 I I 'f 1 1 T. OarroU ... • • * • ••*••• m. m 736 LIST OF CASIS. « «i PAOC. Edinburgh Lift Insuranee Co. T. St. Catharines 281 Edwards v. Burling 341-2G4 Eigisv. Campbell (Ml Elliott T. Heliweli 25tt T. Jayne 34.S ▼. Hunter 261-403 T. Beard 663-658 " T. Wurthington 638 Ellis V. Ellis 633-638 EUwoodv. Scott 658 Ely V. Wilson 279 Enies ▼. Ernes 21-90-144-146 Eumtons ▼. Crookes, 41-46-348432 044 Einsley V. Madden 408 English V. English, 24-32-250-391 " In re 239 Engerson v. Smith 3ti2 Evans ▼. Evans 55-139-239 " V. Parker 218 '• v.Root 43 " Crooks 429 Erskincv. Campbell 200 Bwart V. Dryden 207 " V. Snyder 207 •• V. Gordon 207-198 Fabnerv. Ran 601 Fairbanks Re 616 Pair V. Tate 383 Fallon ▼. Keenan 641-702 Falconer In Re 680 Farewell v. Wallbridge 28-209-452 546-550 Fariah V. Marty n 440 Farley v. Davis 631 Farrell ▼. Moore 153 " V. Stokea 213 *' V. Cruickshank 99 Parry v. Davis 654 Farquhar v. City of Toronto 52-183 Farqunarson v. Williamson 29- 671 Penton v. Cross 16-44-61-334 Fenny v. Preistman 128-431-443 Ferguson v. Kilty ... 160-393404 Ferrass v. M' Donald 392 Ferrie v. Kelly 334 Ferrierv. Kerr 271 Ferns v. Hamilton 242 'lekT. McMicnael HO Fielder v. U'Hara 685 Fiulay V. Fellows 721 Fielder V. Bannister 712 Fiai»ysua v. Mills JL87'342 raoK. FinlaysonT. Mullard 614 Fink V. Patterson 881 Fisber v. Wilson 116-447-630 « T. OlasB 280 Fish V. Carnegie 402 Fisken v. Wride . 166-691-602-713 *< V. Rutherford 94'286 Fitcgerald v. Upper Canada Building Society 60 Fitzgerald v. Philips 452 Fitzgilibon t. Duggan 544 Fiizpatrick V. Wilson ^^'4 FoUisv. Todd 64c «« V. Porter 604 Foots ▼. Matthews 183 Forbes v. Adamson 320 " ▼. ConoUy 652.682 Ford V. Chandler. 56-139-632-634 '• V.Jones 214 •' V. Proudlbot 408-639 Forman v. Hodgson 112 Forrester Re Messiner v. For- rester 24 Fursyth v. Drake 431 Foster V. McKinnon ii <' V. l<.u)erson ....173-321-009 " Re 414 Fouldsv. Powell 047 Fowler V. Marshall 23 " V. Boulton 198 Foy V. Merrick 619 Ful er V. Rictimond 240-208449- 488545-578 Furness v. Metropolitan Water Co 490 Eraser V. Rodney 40 " T. Sutherland 138-351-405' 487-645 « V. Locie 62-383689 <* V. Rodney 4O9-O37-6O0 " V. McLeod 704 " V. Bens 530 Francis v. St Germain . . . . 58» Freeman, Craige & Proudfoot R« 55-139-018 Freeman v. Bank of Upper Can- ada 66-523 Freeman Re 471 FreeUolp v, Jones 259 1< ricitt V. Scheck 13d Fleming v. Parker 373 Fleteuer v. Bosworth 2^9 Flint V. Corby 273-646 '* V.Smith 647 Flower v. Duaean 313 LIST OF CASES. 737 PAGE. 0. Mortgagee ▼. V. Mortgagor 376 Oalbraith r. Morrison 68 " ▼. Gurney 437 " ▼. Armstrong 632 Qale y. Hubert 30 QaltT. Spencer 549 « V, Buch 66b652 Gamble t. Howland 60-272 " V. Gummerson 694 Gardiner v. Brennan 167454 " V. Juson 66139-394-542 Garside ▼. King 132 Gartshore t. Gore Bank 162 Garrat ▼. McDonald 222 '< T. Johnston 486 Garden V. Allan 419 Geary ▼. the Gore Bank .... 480 Geddes V. Allan 533 Gibb ▼. Murphy 61 " V.Warren 362 '3ibeon T. Clench 77 " T. Annie 470-676 Gilmour v. Cameron 96-305 " V. Matthews 10-464 " V. Myera 377 " V. O'Brien 427 " V. Gilmour 685 Gillespie ▼. Grorer 43-227-434-665 " V. Van Bgmondt 17-305 OillamT. Cleghorn 63-64-78 Gill ▼. Tyrrell 470 " T. Gambl 669 QillrieRe 247-259 GiidlMtone T. Gunn 222 Glam T. Freckleton .... — 711 OoflT. Lister 519-643 Qoodfellow T. Hambly 11 Goodhall V. Burrows 461 Gooderham r. De Grassi . . . 116 " V. Routledge ... 181 " V. Bank of U. C. 478 Goodhue t. Carter 221 " y. Widiaeld 382 " v.Whitmore.. ..409472 Goodeve y. Manners 454-693 Goodwin y. Williams 275-304 Gordon V. Ross 83-371 " y. Gordon 161 , " y. Young 292 " y. Weayar 336 " y. Lothian 350 " V. Johnson 709 Gen Bank y. Sutherland .... 629 " " y. Royal Canadian . Bank 82 4v i. PAOK. Gottv. Gott 38-95 Gould y . Hutehinson 27 " y. Burritt.... 99-206-339468 ** V. Hamilton 6l9 Goulin y. Caldwell .... 313 Gourlay v. Riddell 100-296 Gowland y. Garbutt 384-698 Grace V. McDermott 638 " V. Whitehead 260-647 Graham y. McPherson 27 " y. Chalmers 242-320-324 394-514 y. Davis 264429 •• '/."♦hern R. Co. . 281 " T. Burr 634 Grange v. Barber 123 " y. Oonropr 489-604 Grainger v. Grainger 222 Gr.\ntbam y. Hawke 76 Grant y. Patterson 188 " y. McDonald 18 " y. Brown 604 Groves v. Ryvea 172 Grayy. Hatch 100-394 '• v. Springer 579 Greaves v. Smith 75 " v. Hender8on55-76-l39-140 Great W. R. R. Co v. Gait it GuelphR. Co ....87 " " v. Jonea 300-656-62-687 " " y. Desjardins Canal Co 401-526-597 Greenshields v. Barnhart .54-141 138-189-191 " V.Blackwood 212 Greenwood v. Comm'rcl Bank, TO8 Green v. Adams 333 " V. Amey .-^496 Greig v. Greeu 158.459 Qrier v. St. Vincent 65 284 Grimshaw y. Parks 194-409 Glassy. Freckleton 13 " y. Munsen 24-160 Glennie y. Glennie 35 Guelph y. The Canada Go. 386-406 Gunn v. McDonald 372 Gwynne y. McNabb 167 Hagarty v. Hagarty , 33 Haggart v. Allan ....310-418-676 Hall v. Coldwell 175 Hamilton y. Phippe .166 " V. Banting. .....224-384 " V.Hamilton 249 " V. Desjardins Canal Co 255.431 r60 Harknefls v. Conway .........414 Ham V. Ham . .;. 37 Harv^.T. Smith ...66.139.319^49 '< ▼. Ferguson 170 " T. Taylor 497 Harrier. Beatty 70 V. The Dry Dock Co... .114 t. Meyer*. 10«.286'472-662 Harrison v. McGlaahan 23 . " y. Armour 185 *' T. Jones..... ..... 253 <' V. Baby ...;.... 268.440 V. Shav . ...iri.. 316 T. Patterson. . . . .19-398 Harrold t. WaUis ...... 206.674 Hatt V. Parke 1 19.165-458 Hatch ▼. Pick...., 626 Hawke ▼. Mnlliken 373 Hawkins v. Jarvis 55.488 Hayball v. Sheppard ..166 Healy Re 302-500 ." V.Ward 693 Heal V. Harper... 535.129 Heapv. Crawford 370 Helhwell r. Dickson 648 Henderson t. GreaTes 140 ▼. Woods 635 T. Cowan 214 V. Richmond 461 ▼. Dickson.... « 696 Henry V. Burnees 619 " ▼. McKeown 210 " ▼. AKricalturml Mtttutl Assaranc* Co. 297 " ▼. Low 365 HtnrihanY. OallaKher66«139.314. 817 Heron ▼. Walsh 669 " T.Swisher 86-387 Her M. Sect of State t. O. W. R. Co 402.603 it « « « (4 It PAGE* ^'r6hmer v. Benson ..,38-445488 Herrick r. The O. T. B. Co.. ..242 Heward t. Magah'ay ......... 252 " V. Harrtt. 276 " V. Watson 49U »' v.Ridout. 542 «« T. Wolfenden... 694 Hickman t. Lawson 79-534 Hillv. Hill... ....i40-167 " y. McGuire 41 V. Rutherford...... . . . . 101-146 y. Forsyth.. 462 y. fiufiklo A L. Huron R. Co ; .601 Hilliard v. Campbell 46u Hilts Re 616 Hind V. Little 55H Hincks v. McKay Hiscott y. Berringer. 413-669 Hodgins v. McNeil 26-331-33:{ Hodkinran y. French ....166-157 Hodges Re 266-444 HoBgv. Wallis 357 Holoorob V. Leach 21 9-452 " y. Nixon 276 Holland v. Moore 525 Hollywood y. Waters 210-459-520 Holmes y. Matthews 192 Holt y. Gray Re 290 Home Insurance Oo y. Thomp- son 299-66-139-Ul Honsberger y. Martin 30 Hooke v.McQueenl07-310-574-576 Hope y. Beard 337*466-635 Houlding y. Poole 33441 2-430-659 Howard y. Macara 376 Howoutt y. Rees 399448449-492 676 Howland y. Stewart 141-190 y. Grierson 668 y. MeNab 690 Howitt v. Osowski 94 Httghson y. Davis 117-318 Hunter v. Mountjoy ... 16.389-469 Huntingdon v. Van Brocklin 7o9 Hunty. Prentiss 196-4&6 " y. Spenoer 607 Hurd y. Bob«rtsonl06.1 18*166 68'( y. Seymour 316 y. Billington 160434 Hutchinson y. Rapelge ... 1 16*674 " y. Bdmison 31 " T. Htttehinaen ... 321 Hyman r. Roots U4*S69 Inglis y. Gilchrist .'. . . 36g it tt it LIST OF cases: m •445488 3b.. ..242 .....262 216 49U .....694 ...79-634 41 ..10M46 .... .462 .601 460 616 55f( V. 41 3-669 26-.33l-33:^ ...166-157 ..265-444 357 ... 219-452 276 626 110469-620 .... 192 290 rhotnp- 65-139141 ... 30 10.674.576 37'466*635 L12430-669 ... 376 48449-492 ..141-190 668 690 94 . .117-318 16.389*469 rocklin 7o9 ....196465 tt07 18-165 68'( 216 . . . 160-624 ...118.674 n « HOB ... 226 .....lM-869 • • • • « **o Irving T. Mviin 167 " IfcLachlin 627 Irrin* v. Wbitehtad 643 " T. Strait 665 Irwin ▼. Freeman 226«663 " V. Harrington 639 Itherwood ▼. Dizon ..... 118-644 JackaoD t. Matthews, in Re Pat- terson 23 " T. JaekM>n33477.662-587 " ▼. Jessop 680-624 JaoquM ▼• Worthington .... 476 James y. Robert«on 247 " V. Wertheimer 654 ■' T. Freeland 680 Jav T. Macdonell 64 Jekyllv. Wade 78 Jennings t. Robertson . . . 227-276 Johns T. Furze 80 Johnson t. Cowan 38 " V.Cass '316-467 " V. the Canada Co . . 499 Joice V. Duffy 486 Jones T. Bailey 350 '' y. the Bank ot Upper Canada 383408-664-620 •< V.Clarke 445-629 Joseph V. BoBtwiok 152 " ▼. Heeton 481 Jufion V. Gardiner 323 Jury V. Burrowes 696 Rains v Mcintosh 226-484 Kay y. Sanson 393 Keachie v. Buchanan 564 Rsllar V. Tachc 643 Kelly y. Ardell 159-436 " V. Mills 240 '* V.Smith 495 Kelley V. Mackleni 172 Kemp V. Jones 38-83-.')08 " V. Henderson 63 Kendrew v. Shewaii 1 78-578 Kennedy Re 263 " V. Lawlor 692 Heiirick v. Deinpsey 633 Kerby v. Kcrby :{5»;-6.*}2 Kerr v. Amrtden 56-623 '• V. Andrews 1.19 •' V. Ruin 110 2.34544 ' v.Bebee 185 " V. Cleriimon 489 ' V. Murruy -l^S • V. Laflferty 477 V. Hilman 592 " V. l;#i«hnian 67.*^ Kerr ReaSoUeitor... 616 Kilbom y. Workman 652 Killaly y. Graham ...... 660-209 King v. Freeman 222 " y. Keating 408-626-627 " y. Conner 92466 Kingston y.MoQger. , . .664 Kintrea y. Cbarks .^.422 Kirohoffer y. SUflbrd 490 Kirpatriok y. Fou^ette 466 " y. Lyster. ... — 612 Knapp y. Cameron 860 Knaggsy. Ledyard 640 Knottinger y. Barber 216 Kronsbien y. Oage 601 Laidlaw v. LiyerpoolALondoa Ins. Co 300 Laingy. Avery 602 " v. MMtthews 602 Lake v. Mcintosh . . 260 Lalor y. Murohison 493-511 Lamont v. Lamont 26 Lamb Re 289 " V. McCormack 367 Landman v. Crooks 474 Lannin V. Jennyn 204 Langstaffe Re 83 '• v. Playter 695 <' y. Mansfield ...... 678 Langlois v. Baby 104-154 Larkin v. Armstrong . 204-635-49 Lash Re 628 Latham V. Cro»by Ill Latch V. Furlong 374 Laughton v, Thompson ... 278-536 Lavin y. Fraser 393 Lawrence V. Pomeroy 134 " V. Judge 269 " Humphries.... 41 2-435 Lawrason v. Fitagerald ... 261-365 Lawson v. Moffat 72 Lazier v. Ranney 224-437-212 I^ach y. Shaw 178 Leary v. Ruse 600 Ledgerwood v. Ledgerwood 2.3 Ledyard v. Mcl.iean ...60-464-598 Le^ V. Bell .307-610 Lee V. Watcrhoiinr 464-615 Uoch ▼. Leech .. 102-104-435-661 Legge V. Winstanly 13-611 LciHhmnn v. Eastwood ... . 54;* I/Kinard y. Black 305426 Lrtlio V. Preston 589 l4fTarg« V. UeTuylc 141-18! 352 ,,¥ 746 LIftT OF CASIS. *AOB LiMrifi ▼. Jonee 168.711 *•* T. Pattertota 680 L» T. McDonald 270 " V.Brown 320 Light V. the W. ^ L. E. B. B. lH.Co 460 Lhidwy T. Bank of Montreal 195 Linton v. Michie 633 Liptey v. Cruise 11 Logiev. Yonng 666 '^ T. Austin 666 " T. Stayner 666 " Y. Jameson 660 Long T. Willmotte 77-408 " T. Glenn 354466 London T. London 47 Loring V. Loring 676 Losce V. Armstrong 179 Loucks ▼. Loucks 160 Low V. Morrison 603 Lowell V. BankU. C 188 Lundy v. McCulla 193-561 " V. McKamis 372 Luther ▼. Ward 661 Lyman ▼. Kirkpatrick ....218-450 Lymburner v. Clark 120 Lyon V. Badenhuret 631 Macara v. Gw>nn e 461 Macaulay t. Procter 449 " V. EobertB 288 Macbeth t. Smart 212 Macife t. McDougall 225 Maclem T. Cumming0....461-621 Mahon v. McLean 245 Mair v. Kerr 258-447 " T.Bacon 423 Maitland v. McDity 349 Malcolm v. Malcolm 693-707 Male T. Bouchier 1 00 Mallock y. G. T. R. Co... 126 308 " r.Plunket.. 100-170.236- 544 Malloch T. Pinkey 399-366 Manley v. Williams 286-648 Manning v. Bercly ?02 «* T. Cubitt 494 Mara & Rama v. Ontario . . . ..^86 Marcon V. Ailing C67 Marshall Be Fowler k Marshall 23 " V.Balfour 491 Marsh v. Beard 548-549 Martin V. Mitchell 124 " V. Beid 162-605 " V. Kennedy 424-433 •< V. Purdy. 529 Martin v. Martin 679 Mason v. Seney ...16-103.1^7-173- 469-470-498.640.660-639- 689 " V. Jeffery 648-649 Massingberd v. Montague ... 538 Mathers v. Helliwell 367 " v. Short 720 Matthews v. Holmes . . 56 ' ?9-141 353-403 Maughan v. Wilkes 73 Maulson v. Moor 651 Mavehy v. Montgomery 604 Maxwell V. Maxwell V Meacharn v. Draper /Ol Mellish V. Brown 474 Meneilly v. McKenzie .66-139-212 Menzies v. Ridley 17-201 " V. White •■ 570-674 Merkley v. Casselman ...... tji Merrill v. Ellis . >16 Merritt v. Stephenson 360-361-o36 Metcalf V. Keefer 68-70 Methodist E. C. of Church- ville Re 498 Meyers v. Lake 74474 '• V.Harrison ..342-349-360 Michie v. Charles .. .128439-443 Mirchall v. Banks 366 Millar, D. G In Be 51 Miller v. O8tranderl20-262.3C9408 " v. Miller 302 " V. Attorney General . . 309 " Re 351-526 " V. McNaughton 20-340-674 '* V. Gordon 456 Mills V. Dixon ... 491 Milne Re 331-467 Mitchell V. Martin 125 " V. Crooks 143 •' V.Campbell 163 " V.Hayes 221-223 " V. Ritchey266-637-638-660 '* V. McOartey 621-646 " Goi.-ie 710 Mitcheltree V. Irwin 666 Moflfatt V. Marcli 218-622 " V. Nicholl 312 '• V. The Bank of Upper Canada 354 " V.Thompson 406 •' V. Riddell 453 " V. White 167 " V. Hvde 40 mmm LIST OF GASES. 741 Moatreal Bank ▼ V. V. V. PAOI. Baker... 10-164 Auburn Ex- change Bank 39 Montgomery t. Gore Mutual Insurance Go .... 388 " V.Ford 536 Monro t. Eeely 668 Moore v. Grand River Naviga- tion Co 116-167 " v. Riddell 60-371 Clarke 184 Gould 314 Merritt : 359-458 " v. Shinners 665 Moodie v. Leslie 121 " V. McCann 194 '• ▼. Thomas 319-669 Morphy v. Feehan 73 " V.Kerr Re..; 558 Morey v. Totten 631 Morin v. Wilkinson 574-623 Morley v. Mattiiewe 518-529 Morrison v. Nevine .. . .118-356 " V. McLean 279-3' 1 Morrell v. Ward G42 Morris V. Kemp 607 Morton v. Kennedy 310 MosBopv. Trust & Loan Com- pany 602 Mountain v. Porter 213 Mowat V. City of Toronto 188 Machall V. Bank" 366 Muirv. Dunnet 66-520 Mulholland v. Brent 171 " V. Downes - 696 V. Williameon ....226 " V. Hamilton ....72-526 Municipality of Fredericksburgh ^.G. T.R. Co. 251-278 ofOrford V.Bailey.. 388 412 " of Saugeen v. The Church Society 133 " of Guelph V. The Canada Co. ...146 Muneon V. Hall 422 Itunn V. Glass 556 Munro Murney V. •.f.-140-.38O WatHoi) . , Courtney 691 Knapp 556 Murphy v. Morrison 688 Murphy v Lamptrier 2G2 Murray v. Heron 30 VanBrockiin 163 Murray 242 " V. PAOI. Murray v. Pringle 409 " v,Courtray .409 Murtha v. McEenna .... 696 MuBsehnan v. Snider 451 Myers V. Lake .....665 " V. Robertson 565 MylneRe 666 McAlpine v. Young 397 McAlpinv. How 404 McArthurv. Webb 252 McAunany v. Turnbull . .179466 McAvoy V. Simpson 665 McCan v. Eastwood 563-400 " V. Dempsey 88-660 McCabe v. Thompson 187 McCall V. Faithborne 699 McCarthy v. Wessls XI McGlay v. Durand 401 McGlennaghan v. Buchanan.. 460 McClure v. Jones ..458-559 McCuUocb V. McGulloch.. 264-34 McCrunn v. Crawford 403 McDonald Re 263 " V. McDonald 80-389-711 " V. McDonell 702 " v.Jarvis 192-581 V. Garrett... 193-260-891 V. McMillan 718 V. Wright. . .62-193-285 •' A-. Weeks 216 V, Boice 236 " V. McCallum.... 69-291 Gordon 102-397 Elder 461-672 Putman. 127-163-487 Rodger 52-622-91 Dicarie 347 Cameron 563 Carrodi. 119 Re Cameron & McDonald 28 McDonell v. McKay 38-40 495 " V. Street 44 V. McDonell 86.1.39 McDonough V. McDougherty 367 McDougall V. Bell ....261-393-636 ** V. Barron 596 McDowell V. McDowell . . 662-686 McDiarmid v. Diarmid 60-134-229 McDuffic V. McDuffie 641 McEdwards v. Gordon 65 McEdniunds v. Ross 261 McFaden v. Stewart 88-507 McFarlane v. Dickson... 60-608-468 McGill V. McGlashan.... 310-368 V. V. V. V. V. V. V. V. i ' t42 LIST OF CASES. •'>; FAOI. MtfOilliTiry t. Cameron 346 McOrtgor r. Boulton 264 " V. Andenon 421 McOm v. London t P. S. B. Co ...278 McOonigal t Storey.. 719 Molntyr* v. Cameron .44*1 96 " V. Attorney General 698 " V. Kingeley ....248 " y. Shaw 374 Melntoflh t. Elliot 106-446 " ChaeRe 680 Mcllroy T. Hawke 567 MoEay v. Reed 377-400 " T. McKay 32400469 " V. FariBh 67 " V.Davidson 122 McKeehnie v. McEechnie 150-376 McKenzie v. Yeilding ...603-607 McKeona v. Smith 280 McEerchie T. Montgomery ... 611 McEinnon v. McDonald 437-613- 614-656 McEidd V. Brown 671 McLaren v. Coombs 617 McLaughlanvWhiteeides 145-462- 690 McLaurin v. McDonald 254 McLean v. Goons 272 " V. Beaty 181-239 " V. Jacobs 626 " V Arnold.... 577 McLleodv Miller 125 McLelland v. Maitland 351 McLennan t. Heward 26 '• V. McDonald 713 McMaeter v. Eempshall 668 " v. Demmery 219 " V.Grant 229 *• V.Callaway 278 " V.Noble 305 " V. Phippa 318 " V. Campton 467 " V.Morrison 721 McMurray v. Burnham 350 MoMurrich v. Hogan 12 McMichael v. Thomas 708 McNabb v. Gwynne 41-444 •' V. Morrison 693 McNames v. Phillips 600. McNaJr v. Simpson 668 McNight v. McNighf 207 McNulty Re 326 McPhadden v. Bacon 208 Mcpherson v, Mc Cabe 391 PACK. McPherson v. Dougan 364 " V. McPherson .... 722 McQuestien v. Campbell 186 " V. Winter 516 '' y. Thompson... 56-140- 696 MoBoberts v. Durie 397 MeSheny Re 331 Xealv. winters..... 122 Neil y. Bank of Upper Canada 269 Nelson y. Robertson 40-412- 430- 432 « Re 721 Nevilla v. Neville 160 Nevieux y. Labadlie 156 Newton v. The Ontario Bank. . 293 " v. Doran 417-420 Nichol V. McDonalu ..56-140-341- 457-666-691 " V. Elliott 493 Nicol V Tackaberry 180 Nickles v McRoberts ....... .325 Noble V Line 377 Noel vPell. 69 Nolan V Nolan 36 Norris V Bell . . . . 19 Norwich v The Attorney Gene- ral 56-140-309-388 Northey v Moore 457 Nutter V Smith 286 Nowian v Logie 63^ Nudell V Elliott 2;i O'Connoll v Charles 405 O'Connor v Naughton 424 O'Dellv Dotty 222 O'Grady v Munro 460 O'Gilvie v Squair 511 O'Hara v Cuthbert 628 O'KeeflTe v Taylor 107-572-62H Oliver v Dickey ....197 O'Lonev O'Lone ....116-238-417 Ontario v Winnaker . . ... .384 " Simcoe & Huron R. Co. V Cotton 42i'> O'Neil V McMahon 405 573 O'Reily v Wilkes 377 Osborne v Osborne 53 1 " V Building Society 29-47(' Owens Re 289-29:' " V Campbell 353-45»i Paine V Chapman 119-168-406-4.V.) 646-647 Papineau v (Jiinl I'.Mi ParkvRiley f)6-140-64l! Partridge v Mcintosh 416-432 54:- 1 LIST OP CASES. id ene- 309-388 ,,..457 ,...280 . . 63i-> ...2;i ..40(' ..424 .222 ..460 ..511 • 62H 572-623 ..19T 238-417 ...3H4 Co. ...42;- 405-573 . . 377 ,...581 ■ 29-47(. 289-29:' 353-45ti t06-4o:) PAOV.! Parsons v. Kendal . > . . . f ■ •. , . . 229 Passmore v NicoUs 446 Paterton t Mo&Ia^r .... 205-676 " V Scott 144-446 *' In re Jackion y Mat- thews ..23 <' rJohaeoa ..283 <' V Holland.. 322'4$2-704 " ▼ Bowes 434-453 ' < ▼ Stanton .454-635 ' < V Royal Insurance Oo 697 Pattison y McNab 682 Patton Re 92-249-331 Paton y Wilkes 67-483 " y The Ontario Bank.. 211 Paul y Blackwood 56-140-575 " V Johnson 253-702 •' V Ferguson 711 Pearson v Campbell 84-557 PeebleHV Kyle 413-669 Peel y Kingsmill 430-610 Pegley y Woods 718 Pegg V Eastman 96-235-568 ° y Metcalf 187 Pemberton y O'Neil 129 Penley y The Beacon Assurance Co 264-296-299 Penn y Lockwood 350-627 Penner y Canniff 188 Perkins y Plebs 12 " y Vanderlip 144-372 Perrin y Dayis 488 Perry y Walker 677 Peterborough y Congerl93-489-564 Peto y The WellandR. W. Co 605 Philips y Preston 719 Phelan y Fraser 230-632 " y Phelan 458 Pherril y Pherril 414-683 PipeyShafer 216 Pomeroy y Boswell '"...63 Place V Sparon 335-634 Piatt y Ashbridge 372 Porter V Gardner 562 Postman y Smith 223 " vPaul 466 Pollock y Perry 715 Powell y Begley 425 Powers y Merriroan 213 Prentiss y Brennan 100-106-166- 230417-442-446449-497- 510-5d2-656 '« y Bunker 489 Procter y Grant 133-166-681 Ptoudfoot y Lount 91 -622 PAOC. Proudfoot V Thon^h , ... .ItO " y Bush ...^422.524-646 " yXiifilmny 637 Purdyv Ferris .......*.... 171 Pyper y McDonald .......... .70 *< y Cameron ....... 411-48C Rabian y School TruBteesof Thurlow..... 284 Radenhurst y Reynolds ... 144-470 «' vCoate 180-277-469- 625 RadclyflTey Duffy 214 RaeyShaw .»..,,.., 213 Rainey y Dickson ..... ;. 2^557 Randall y Burrowes ........ 636 Ranny Lawless 390 RatzyTylee 663 Rayen y Loyelass 14-469-664 Rees y Whittock 76-160 " " Beckett 271-447 " Jacques 444 Reid y Cooper 501-188 " ySmith 700 " y Whitehead 56-140-164-620 644-711 Rhodes yNeild 493 Rice y George 171-172 " y Brook 470 Rich y Brantford 696 Richardson y Hamilton 487 " y Beaupre 490 " yMooser 168 Richmond y Eyans 381 Ricker y Rioker 686 Ridout y Gwynne... 332 " vHowland 627 Bigney y VanZandt 14 ♦' y Fuller 363 Robertson y Myres 238-449 '« vScobie 371 Roberts V Rees 655 Robinson y Dobaon ..21 9-249469- 558 ** y. Byers 337-366 Robsony Wride 146 " y OarpenUr 616 " vReesor 666 Rodgers y Rod(;er8 92-294-643 Rogers y Shortia 46 " y Lewis ^ .373 " Rogers ....; 4O6 Rolfe y Ooote 104 Rolph ▼ U. C. Building Society 89-468 " V Topping 647 il 744 LI«T OP CASIS. li ."? 4.1 PAGE. Rolph T Cahoun 611 Row ▼ Zimmerman 178 RoMnbtrger v Thomas . . .474-659 RoMburah v Fitzgerald 546 RoaB ▼ Perraxxlt 53.384-661 •' TMunro 95 *• V Mason 137-404 *' y Hayes ...84-458-569 «< ▼ Robertson 100-394 *' vThompson 218 " vPox 343-663 " V Taylor 363-378-522 « T Harvey 520-623 " vSteele 541 Rossin V Walker 89 " vJoslin 317 Rowe V London & Lancashire Insurance Co 298 RbwssU V Hayden 406-631 « V Winatanly ; 672 Rumble v Moore 42 Rumsey Thompson 380 RussT Mills 279 RMsellTDavy 217-361-149 " ▼ Robertson . 223-300-340 Ruthvinv Rossin 79 Rutherford v Rutherford 649 Ruttan ▼ Smith 39-47-88-471 " V Levisconte 516 RylandvAlnuU 49-335 Rykert V Miller 720 Sampson t McArthur 56-140-3 L2 Sanborn v Sanborn ...247-261-422 Sanderson v Gaston ] 77-218-349- 266 " Tince 305-407-361 " V Carter 432 Sanson V MitcbtU 95 Sswdon V Heasty ... 215 Sanaders v Christie 128-341-443- 444 » TFurnival 53-122-301- 551 Saul V Cooper 453 Scans ▼ Hartrick 158-244 Scarlett ▼ The Canada Go ... 153 Scsally T McGallum 136 Sohriebtr ▼ Malcolm 217 School Trustsesv Farrell 346 Scholfisld ^ Tummonds .... 685 « y Dickinson 667 Scott T MoKeown • 213 ScnltboW^Burn 61 Stath f Mcllroy 126 Scoord T Terryberry 688 PACI. Seidler v Sheppard 485 Seneyy Porter 649 Sergeant y Sharpe 337 Severn v Severn 33-36-«80 Sexton V Shell 655 Shanahan - Fairbanks 315 Sharpe In :.:« 125-290-293 Shaw y Cunningham 306 " vLedyard 436 " vLiddell 489 " v Drummond 669 " v Ackers 12 Shaver v Allison 169-485 Sheppard v Hayball 123 " v Sheppard 699 Shea V Fellows 77 Sherwood v Freeland 428 " V Bank B.N. A. ..480 " V Campbell 541 Shinners v Graham lo Shuttleworth v Roberts.. 165-467 Silcox V Sells 694 Simpson v Grant 118-130-579 ♦' vDuggan 188 " V Ottawa 95 " v Hutchinson 461 " V O. & P. R. R. Co. 608- 509-714 " V Smyth 516 " V Simpson 617 S latter V Young 468 " vFisken 657 Small vEccIes 27-195-628 Smart v Cottle 620 Smith v Bogart 162 " V Bonuiateel ... 311-500-681 " V Crooks 419 " V Simp8on..56-140.142-162- 543 " V Bedford 98-640 " V London Gas Co 113 " V Port Hope Harbour Co. 172 " V Smith 177-208-423 " V Roe 20 " v Muirhead 240-660 " V Wootten 284 " vKerr 427 •' vFralick 481 " y Ratte 498 '* v Meredith 632 " V Lines 633 " y Stuart ^iS " vBell 664 " vGuna .♦.704 Snyder y O'Lone , 658 LIST OF CASES. 745 PAGE. Soden v Stevens H92 Sometville v Kerr 85-182-5r.O *• V Joyce 494-028 Soules V. Suule's 31-32-H7 Souter V. Burnliam 515 Sparks v. Redhead 219 Spence V. Leiniitg 41)4 Spolin V. Rvckman 30G Sprague v. Henderson o57 Springer V. Gray 5S7-6!>2 SprouleRe 321-569 St. Vincent V. Grier ....625 Stanburv v. MilliUen 304 Stanton V. McKiiilay ...56-140-375 Stannard Re-intant 2ti3 Steers v. Cay ley . 145 Stegman v. Vraser .316 Steiniiotf V. Brown 371 Stenriett V. Aouvn 716 Steplieiis V. Mears 99 •♦ V. Simpson . .410-521 S tevens v. Cook 135 Stevenson V. Boomer 71 «' V. Hull man 124-4.54 " V. Niciiuls.. 237-527-707 «« V. Clarke 57« Sterling V. Riley 382 " V. Campbell 409 Stewart v. IL.rtun 190-102 «* v. Hunter G«6 " V. Kingsmill 287 «« V. Stewart 199-426 Stickney v. Tylee 507-582 Stilson v. Kennedy.. 252 Stileman v. Campbell 639 Stinaon v. Stinson 11-457 '« V. Kerby 362 " V. Slinson 201-449 •* V. Moore 530 " V. Martin.... 549-550-6 17 Story v. Dunlop 209 Stoken v. Crysler 547 Strathy v. cVouks 203-421 Strucliaii V. Devlin Tli) " V. Murncv . .458-4:)9-4'.)I Street V. lIoj;;ib<).im 90-44 «' V. Com. Hank 50-140-318-521 Strong V. Lewis 646 Stuaii Re 453 " V. McXabb 5;>9 Sutheiland v. Dickson 21! 1 " V. I^icbiinan 317 " V. llufiera 310 " V. R„ss 411 Bunley v. McCrae 090 TAOR. Swan V. Mainoca Ironworks Co 42? Switzer V. Boulton 450-681 Sykes V. B. & 0. R. Co. ...407-505 Talbot V. Hamilton 29 Taylor v. Taylor 35 '< v. Host wick 63-79 " V. Mablev 6T •* V. Sliofl'! 111-399 " V. Cuthbert 214 " V Ward . 255 " V. Stead 408 " V. Craven 466 " V. Ridout 673 Teetor v. St. John 341-464 483-644 Templeton v. Lovell 666 Thibodo V. Scobell ..285 •' V. Collar 348 Thompson v. Buchanan... 167-453 " V.Wilkes 137-277 " V Hind 197 " V. Crocker 273-352 " V. Millar -{04 " V.Walker 315 " V. Milligan.. ...568-594 " V. Brun.«kill 589 *' v. Thompson 694 " Re 618 " Re Biggar v Dickson 179 Thomas v. Torrance 483-508 Thorne v. Chute 690 Thornton V. H(Xjke 103 Tliraslier v. Connollv 42 TifTany V. Thompson .26 407-636 " V. Sin)p«on 176 " V. Clarke 251 •« V. Tiffany 407-42S Tif^dale v. Shortia 599 T-.d(l V. the City Bank 2H6 Toiniikiiis v. Holmes 707 Toniiinpon v. Hill ..... 178-065 Toiipiiig v. Joseph ....56-140-182 Torrance v. Crooks 55-56-140-142- 613 *' V. Winforbottom 83-405 " V. ("licvvott 678 Toronto v. York & Peel 147 " V. McGill 147 Toronto Savings Bank v. Can- ada Life Insurance Co .... 428 Tolten V. Macintyre 396 Town of Port Hoiie v. Northum- berland & Durliam 105 Townslcy V. Neil 2t9 '• V. Charles 433 746 LIST OF OASBS. lu PAGE. Towers v. ChrUtie 682 •' y. Fuott 16!^ Tripp v". M.irtin .... 3:W •' V. Griffin 636 Trneinan v. Scliool Trustees of Peel 104 Trust & Lrin Co v. McD)iineII2J2 •• *' V. Uev^nolils o4-t " " V. Cutlibert 6(J4 Tucker v. Provincial Itnurance Co 235 Tullv V. Braillmry ...Gf.iTH Turnlmll v. Symmonds ...06-330 Tylee v. Bartcliart 452 *• V. Straciian 553 Trvon V. Peer 164411 Unite! States v. Denison .... 317 Upper l-'anaila Miiiini; Cj v. Tlie Attorney General ... 39-610 Vallier V. Lee 22J-640 Vance v. Cuinmln^s ...... 519 VanNornian v. Beatipre ..178-5.SI VanKleek v. Tyrrell 6S VanWagner v. Terrvberrv . . . .5S0 •' V. Finllav .' 719 VanWinkle v Chaplin m VankouH-443 " V. Alley 2S7 " V. Tylor 336 " V. Brown ...716 Wallace v.Foni .39-170 ♦« V. Junes 423 " V. McKiy - 498 Wallis V. Burton 457 Walsh V. Walsh 30 ♦• V. DjBlaquiere 92-612 " V. Boirke 488 Walton V. Bernard 186-487 '* V.Armstrong 654 WaniRe 99 Waring V. Hul)bs 220 Warreu v. MuKenzie 34S " V. Taylor ...363-378-522 Wasoa V. Carpenter 2d7 PAO». Waternv. Shate I "'G 392-398 Waterhouse v. Lee i>4 615-675 Watson V. M >ore .96 Watson V. Munro .... 156-M0-J90 •* V. Him 393-532 " V. Mc:;.irt'iy 93.165 Wattv. Foster 275 •• V. G )re Mutua' Ins. Co... 332 •♦ V. Parker..* 656 Watkins v. .MoKelUr 362 Webber V. 0'. Veil 369 Webster v. O'Cbster ..8t-r)8-559 Weirv. Mithes)n ... 53- ■)7 -111-193 52<-54J-2S.{-3l3-}{»«12 " v. Weir 34-3,5-399 " v. Taylor 121 Weihe v. Ferrie 596 Weldon v. Templeton 218 Wellbanks v. Fegin 452 Western Ins. Co. v. Caprejl ..213 '* V. Taylor . 254 Westacott V Cockerlin:i. . ...44-630 We^tbrook v Attorney General 245- 435 Wiian V. Lucas 409 Whately v. Whately 29-679 Waittemore v. Lem,jine 43 " Re R)sa V. Masun 137 " V. Ridout 270 Whitehead v. B. & L. H. R...U4 115-196 461-463 Whitehou-ie v. Glass 4S3 White v. Beasley 138-406-535 •* V. Baskerville 160 " v.Cliurch , 709 " V. Cummins ...202-241-216 " V. Courtney. . 221-529 " V. H.iight 435-437-518 " V. White 547 Whiting V. Liwrason 2.11 Whitmashv. Ford 248 Whiting V. Hickling 277 Wiard V. Gable 203 Wightman v. Helliwell 638 Williams v. Felker 152 '• v. Tyas 313 " V. Atkinson 401 " V. Hann 466 " Re 629 Willard V. McNab 191 Wi 1 mot v. Bou I ton 42- 189 " V. Maitland . .271-272-')64 Wilson V. Switzer . . . 78-121-561 '* V. Upper Canada Build- ing Society 89 'mufimimmmmmt LIST OF CASES. 747 FAQE. V7ilaon T. Shier 231 " V. Port Hope 2)9 " V. Ric'.iardaon 270 " V.Corby 2S?,-2!)1 " V. Cramp 2011)91 " V. Clii^Lolm 292 " V. Stevenson 292 " V. Tlioinp'on 493 " V. liruriikill 496 " V. Danie's MO Wirnan v. lirad-^treet ........ 4'JG Wintera v. Kingston Permanent ]3nil(iing Society 3L4-5l>3 " V. Hamburg ....' 402 " Y. Sutton U54 W^itham v. Smith 406-223 Wragg V. Beckett ... 175-17*)'<>33 Wright V. Turner :.... 2i0 rAOR. Wright V. Morrow 336 Wood V. Brett . .. 291407-483 717 " V. Brock 654 Woodside v. Dickey 402 " V. Toronto St. R. R. Co 655 Woodstock V. Niagara 529 Worthington v. Elliott .. .380-633 W Tta V. How (}I3 Wylie V. Wylie 310-421 Yaggie lie ' 601-540 Yale V. Tollerton 289-324 Yanington v. Lyon 159-292 Young V. Young 330 '* V. Cliristie 237 " V. Wilwon 557 " V. Bowa 684 CORRIGENDA. Vt/UtA/ ^/*«-^;z^.>2^ Page 26 — Administrator 8, at (oot of Case for lb read HfcLennan ». Heward. Page 2!) — Whatelyv. Whaiehj, add, " reverf ed on rc-liearing, 9 Grant, 178 " Mowut V. C. disseutieiite." Page 50— After Mao F ar lane v. Dickson, tUfijly figure " 2," Pu^e 57 — Weir v. Weir. Tlje inaertion of tliis case liere is erroneouBi this case was nut. appealed. Page 79— After Wilson v. Switzer, for "47 " read "44." Page 108 — Arnold v. McLeaUf at end read " reversed on appeal 6 Grant, 242." Page 115— To index to heading " Costs" add "Interpleader, 20." Page 140— After Weir v. Matheson, read " a E. & A., 123." Page 16C — Note to no. 9, tlnee lines frcm end for "determined " read "dinmissed " Page 188— After Rdd v. Cooper, for " 1 Cham. Rep. read " 2 Cham. Rep.,yO." Page 197— After Thompson v. Hard, read " 247 " for "347." Page 2.S9 — After " ii'ran* ». JTrans" add "reverted, 1 Cham Rep., 303." Page 245 — To " Attorney- General v. McKuUj/," add, "affirmed on re-hearinjr, U Grant, 581." Page 266— Under "Ir.fants," for "See Infancy" read " See InfantH." Page 307— First Cafe after " (J U. C. L. J.," add " 8 Grant, 4G1." Page !i'i:\— Gardener v. Jusen, for " 1 " read "II," Page 3:17— For " Hope v. Head,'' read " Hope v. Beard:' Pag086— After Toronto v. Botces, read "489 '' lor "480." Page 427 — For heading, " Personality " read " Personality." Page 479 — Index, after "appropriation of payments," read "16" instead of "(>" Page 483 — Cockbtirn 9. Gillesjiie' The matter given refers to the Cace following: *' Seidlcr v. S/upherd." Supply befoio tlie rctercnce, " Cockburn v. Gillespie, tlie woids •' to a suit ly u euiety against the Creditor for an as^ignnlent by him, of a Juigmeut rcojverci ag:iirist the Debtor, the Debtor is a necce.-'sary party.' Page 5.54— After " A'eocAie v. Buchanan," add "tccS. C. 2 Cham. Rep., 42." Page 579 — After " Gra;/ v. Springer, 5 Grant, 242" add, " reversed on appeal, 7 Grant, 270." Page 6{)4—Follia v. Forier, fur "1 " read "11." Page CO;'— After Black v. Bla^k, supply " 2." Page 630— Weir v. Mathcson, for "4" read " 3." Page eye— ifoion v. West, before " E. & A. insert " 1." BLACUBunN's Cut Sieah Fuess, 00 Yokge Street, Touonto. '■nnan v> 9 Grant, Toneousi appeal 6 •, 20." I ned " read I* 2 Cham. 7." ham Rep.) ifFirmed on >cliilantc." ut, 4G1." I." ty." read "16" efcra to the lie rclcrcnce, r against the ei-ei against C. 2 Cham. I a feverseil KTO.