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 1 
 
 2 
 
 3 
 
 1 
 
 2 
 
 3 
 
 4 
 
 5 
 
 6 
 
mi 
 
 45-46 QU 
 
 31-32 CO 
 
 3 
 
 A ' 
 
A DIGEST 
 
 OF 
 
 //; -^Z:;/ 
 
 THE EEPOliTED CASES 
 
 DETERMIN i:iJ IN' 
 
 S^lje ^ttpmor €uxU of ©ntErio, 
 
 Mt ^x\\mn\t CoMvt of (Eanatlu, 
 
 CONTATNKD IN VOLUMES 
 
 45-46 QUEEN'S BENCH. 27-29 CHANCERY. 1-4 ONTARIO REPORTS. 
 
 31-32 COMMON PLEAS. 5-8 APl'EAL REPORTS. S-9 PRACTICE REPORTS 
 
 3-7 SUPKEME COURT REPORTS. 1 HODGINS'S ELECTION CASES. 
 
 (BEING A CONTINUAT JN OF ROBINSON & JOSEPH'S DIGEST) 
 
 WITH 
 
 A TABLE OF CASES AFFIRMED, REVERSED, OR SPECIALLY 
 
 CONSIDERED. 
 
 (tm^iUA Iij) (Dra^r of m fjiw ^mtUj of m^sx (tmUix, 
 
 CHRISTOPHER ROBINSON, Esq. 
 
 ONE OF HER MAJESTY'S COUNSEL, 
 ANU 
 
 F. J. JOSEPH, Esq., 
 
 OV OSGOODE HALL, BARKI.STER-AT-LAW. 
 
 TORONTO : 
 ROWSELL & HUTCHISON. 
 
 1884. 
 
SUP 
 
 SUF 
 
 Entered according to the Act of the Parliament of Canada, in the year of our Ix,r<l 
 one th.usan.i eight hundred and eighty-four, by The Law^Society of Upper Canada, 
 in the office of the Minister of Agriculture. 
 
 Hon. 
 
 Sj 
 
 Knt. 
 
 Hon. 
 
 S, 
 
 Hon. 
 
 Ti 
 
 Hon. 
 
 A\ 
 
 Hon. 
 
 H 
 
 Hon. 
 
 Jc 
 
 
 
 D 
 
 J ^ 
 
 cA tX 
 
 K 
 
 t£/(^t 
 
 ROWSELL AND HUTCUISON, PRINTERS, TORONTO. 
 
 Hon. 
 
 Ti 
 
 Hon. 
 
 Jc 
 
 Hon. 
 
 G 
 
 Hon. 
 
 C] 
 
 Hon. 
 
 Jc 
 
 (a) 
 
 TI 
 
 of Comm 
 
 < Ontario. 
 
 (6) 
 
 li 
 
m\Uf ^mtim m\A ||u«0t^ 
 
 OF THE 
 
 SUPRIME COURT OF THE DOMINION OF CANADA 
 
 AND OF THE 
 
 SUPERIOR COURTS OF THE PROVINCE OF ONTARIO. 
 
 SUPREME COURT AND EXCHEQUER COURT. 
 
 CHI'^F JUSTICE. 
 Hon. Sir William Johnstoxe Ritchie, 
 
 Knt Appointed 11th of January, 1879. 
 
 JUDGES. 
 
 Hon. Samuel Henry Strong Appointed 8th of October, 1875. 
 
 Hon. Telesphore Fournier " 8th of October, 1875. 
 
 Hon. William Alexander Henry '' 8th of October, 1875. 
 
 Hon. Henri Elzeah Tasciiereau " 7th of October, 1878. 
 
 Hon. John Wellington Gwynne " 14tl: of January, 1879. 
 
 COURT OF APPEAL FOR ONTARIO («)• 
 
 CHIEF JUSTICES (h). 
 
 Hon. Thomas Moss Appointed 30th of November, 1877. 
 
 Hon. John Godfrey Spragge " 2nd of May, 1881. 
 
 JUDGES. 
 
 Hon. George William Burton Appointed 30th of May, 1874. 
 
 Hon. Christopher Salmon Patterson... " 6th of June, 1874. 
 
 Hon. Joseph Curran Morrison " 30th of November, 1877. 
 
 (a) The Court of Appeal, the Court of Queen's Bench, the Court of Chancery, and the Court 
 of Common Pleas are, by 44 Vict. c. 5, s. 3, constituted one Supreme Court of Judicature for 
 < Ontario. 
 
 (6) The Chief Justice of Appeal is styled " Chief Justice of Ontario."— 44 Vict. c. 5, s. 4. 
 
CHIEF JUSTICES AND JUDGES OV THE lUlOVINCE OF ONTARIO. 
 
 COURT OF QUEEN'S BENCH (a), 
 And Quun's Bmch Dicisiou of the lllyh Court of Jadice. 
 
 CHIEF JUSTICE. 
 HON. JouN- Hawkins IIa.autv An^iutecl Uth of xNovember, 1«7H 
 
 JUDGES. 
 
 HON. JouK DocuLAS AuMO.H Ai-poiutocl 30th of November 1877- 
 
 Hon. Matthew Cuooks Camekon " 15th ot xNovembor, 18<8. 
 
 COURT OF COMMON PLEAS, 
 
 And Common Hcas Diolsion of the lliyh Conrt of Justice. 
 
 CHIEF JUSTICE. 
 Hon. Adam Wilson {h) An-omted 1 3th of xNovember, 1878 
 
 JUDGES. 
 
 HON. Thomas Galt A, pointed 7th of June 1869^ 
 
 Hon. Feaiheuston Osler " ^th ot March, 1879. 
 
 COURT OF CHANCERY, 
 
 And Chancery Division of the IJiyh Court of Justice. 
 
 CHANCELLORS. 
 
 HOK. JOHN GoDruKV Spuagoe Appointed 2' ^h of December, 1869. 
 
 Hon. John Alexanoek Boyd " ^rd ot May, 1881. 
 
 VICE-CHANCELLORS. 
 
 HON. Samuel Hume Blake Appointed 2i^ of December 1872. 
 
 Hon. William Puou.rooT " 30^ o M.y, 874. 
 
 Hon. Thomas Febouson " ^*^l^ «i ^^i^^' l^^l- 
 
 MARITIME COURT. 
 
 JUDGES. 
 
 Kenneth McKenzie, Q. C Appointed 12th of July, 1877. 
 
 John Bovh " 28 th of March, 1883. 
 
 (a) The Courts of Queen's Bench, Chancery, and Common Pleas constitute the High Court of 
 Justice for Ontario.— 44 Vict. c. 5, s. 3, subs. 2. 
 
 (b) The Hon. Chief Justice Wilson was first appointed a Puisne Judge of the Court of Queeu'.'i 
 Bench on 11th of May, 1863. The date of this appointment is omitted in R. & J. Dig., vol. i. 
 
 'SI 
 
MASTERS AND UEFERIiES— MINISTKIIS OF JUSTICE AND ATTORNEYS-GENERAL. 
 
 'iWajitcviS jnul '^Hn(($. 
 
 Robert Gladstone Dai.tox, Q. 0. {a)... A pppointoa Clerk of the Crown ami Pleas 
 
 of tlio Court of Quppn's Bcncli, 21st. of 
 Fi'brujiry, 1870; appointed Master in 
 Cliambers, 23rd of August, 1881 
 
 Thomas Waudlaw Tayloi;, Q. C \ppointcd Master in Ordinary, 16th of 
 
 December, 1872. 
 
 Richard Poutek Sthphkn-s Appointed Referee in Chambers, 1st of 
 
 April, 1870. 
 
 Thomas Hodgins, Q. C. (i) Appointed Master-in-Ordinary of the Su- 
 preme Court of Judicature for Ontario, 
 1 0th of January, 188-3. 
 
 John Winchestei; Aj.pointed Registrar of the Queen's Bench 
 
 Division 28tli October, 1882, and 
 Odicial Referee of the High Court, 
 22nd March, 1884. 
 
 ^Uttistcr^ of ^u^tiff mnl ^tUxnnjUfytmvnl 
 
 DOMINION OF CANADA. 
 
 Hon. James McDonald Appointed 17th of October, 1878. 
 
 Hon. Sir Alex.ander Campbell, K. CM. G. " 20th of May, 1881. 
 
 ATTORNEY-GENERAL FOR ONTARIO. 
 Hon. Oliver Mowat Appointed 31st of October, 1872. 
 
 (a) The Master in Chambers ia an officer of the Supreme Court of Judicature for Ontario— 
 44 Vict. c. 5, Rule 420. 
 
 (6) The Master-in-Ordinary is an officer of the Supreme Court of Judicature for Ontario. -« 
 *» Vict. c. 5, s. 58, sub-s. 2. 
 
(gattor nnrt |UiJartcrsi 
 
 :;< 
 
 OF THE 
 
 SUPREME COURT OF THE DOMINION OF CANADA 
 
 AND 01' THE 
 
 SUrEUlOU COURTS 01' THE i'KOVINCE 01' ONTAIIIO. 
 
 EDITOR OF THE ONTARIO REPORTS. 
 
 Christopheu Robinson, Q. C Appointed 30tli of May, 1H72. 
 
 REPORTERS. 
 SUPREME COURT OV CANADA. 
 
 Robert Cassels, Jr Appointed Registrar 8th of October, 1875. 
 
 George DtvAL " 19th of January, 1876. Vols. 
 
 3 to 7, S. C. R. 
 
 COURT OF APPEAL. 
 
 James Stew \rt Tupper Appointed 27th of November, 1876. 
 
 Vols. 5 and 6, A. R. 
 Alexander Grant Appointed 11th February, 1882. Vols. 
 
 7 and 8 A. R. 
 
 COURT OF QUEEN'S BENCH AND QUEEN'S BENCH DIVISION. 
 
 Salter J. VanKouohnet, Q. C Appointed 25th of June, 1878. Vols. 
 
 45-4G Q. i5. and 1 to 4, O. R., Q. B. D. 
 
 COURT OF COMMON PLEAS AND COMxMON PLEAS DIVISION. 
 
 George Frederick Harman Appointed 7th of December, 1872. Vols. 
 
 31-32 C. P. and 1 to 4, 0. R., C. P. D. 
 
 COURT OF CHANCERY AND CHANCERY DIVISION. 
 
 Alexander Grant Appointed 19th of June, 1845. Vok 
 
 27 to 29 Chy. 
 
 Thomas Percival Galt " 17th of February, 1882. Vol. 
 
 1, O. R., Chy. D. 
 
 Augustus Henry Fraser Lefroy " 20th of May, 1882. 1 to 4, 
 
 O. R., Chy. D. 
 
 PRACTICE REPORTS. 
 
 William Egerton Perdue " 1st of March, 1879. Vol. 8, P. K. 
 
 Thomas Taylor Rolph (a) " IstofMarch, 1879. Vols 8 and 
 
 9, P. R. 
 
 a) Mr. Perdue resigned 15tli of October, 1882, and Mr. Rolph was appointed Practice Reporter, 
 
 I 
 
NADA 
 
 TABLE 
 
 OK 
 
 THE NAMES OF THE CASES CONTAINED IN THE DIGEST. 
 
 A. 
 
 COLUMN. 
 
 iober, 1875. 
 76. Vols. 
 
 1876. 
 182. Vols. 
 
 378. Vols. 
 R., Q. B. D. 
 
 872. Vols. 
 I., C. P. D. 
 
 845. Vols'. 
 882. Vol. 
 582. 1 to 4, 
 
 Vol. 8, P. K, 
 Vols 8 and 
 
 tice Reporter, 
 
 A. B. & C. D., Attorneys, In re . . . . 4fi 
 
 A Solicitor, In re . . . . . . . . 40 
 
 Abell V. McLaren . . . . 78, 471, G 12 
 
 Abrahams V. The Queen .. 49, 187, ItsS 
 
 Adams anil the Township of East AVhithy i'.^S, 
 
 780, 7S8 
 Adamaon v. Adamson 175, 2.36, 250, .3!)G, 428, 
 
 ':(i2, 772, 773 
 
 V. Bell — West Toronto Election 
 
 (Ont.)(2) 5.')7 
 
 ^tna Life Insurance Co. v. Brodie . . 254, .378, 
 
 4.^3, 751 
 
 Agar V. Stokes . . 
 Agnew V. Pluukett 
 V. Ross 
 
 Co. 
 
 Agricultural Investment 
 Bank . . 
 Savings and Loan 
 
 411 
 
 ..39, 4(i, l(i3 
 45, 59 
 V. Federal 
 
 .. ..280 
 Ass iciation 
 
 V. Federal Bank 68, 237, 28(5, 051, (;!»5, 775 
 Aitcheson v. Mann 118, 162, 587, 003, 709, 819 
 
 Aitken v. Wilson ()29, 039 
 
 Alberaarle, and Eastnor, In re 18, 494, 495 
 (Township of) and United Town- 
 ships of Eastnor, Lindsay and St. 
 
 Edmunds 494, 405 
 
 Albert Cheese Co. v. Leeming 127, 148, 040 
 
 Alexander v. Diamond . . . . . . 248 
 
 Allan, Re— Pocock v. Allan 272, 273, 657,. 708. 
 
 710 
 
 and The Township of Amiibel, In re 25 
 
 v. McTavish . . . . 252, 290, 395 
 
 Allen V. Mathers 034,706 
 
 Almon v. Lewin _ 809 
 
 A mer V. Rogers .. .. 207,021,700 
 
 An Attorney, In re 40, 0.35 
 
 Ancaster (Township of) v. Durrand . , 703 
 Anderson v. Bell . . . . 797, 804, 812 
 v. Striker — Prince Edward Elec- 
 tion (Ont.) .. 550, 504, 509 
 
 V. Worters 109 
 
 Andrew v. Stuart 297, 502 
 
 Anglo-Canadian Mortgjige Co. v. Cotter . . 230 
 Archer v. Severn . . . . . . . , 809 
 
 Arkell v. Geiger 157,390 
 
 Armstrong v. Crooks — West Toronto Elec- 
 tion (Ont.) 528, 530, 535, 537, 542, 551, 
 552, 553, 572, 570 
 Arnoldi v. O'Donohoe 
 
 COLL'MK. 
 
 Attorney-General of Canada ex rel. Barrett 
 V. The (nteruatioiial 
 
 Bridge Co 180 
 
 of Ontario v. Mercer . . 121, 
 
 233, 819 
 
 v. O'Reilly . . 49, 
 
 I89, 233 
 Atlantic and Pacific Telegraph Co. v. Domi- 
 nion Tulegraph Co. . . . . 022, 025 
 Austin v. Davis _ . . . , 172, 180, 198, 753 
 Aylesworth v. Wbite- 
 tion (Dom.) 
 
 -East Hastings Elec- 
 
 520 
 
 B 
 
 Backus v. Smith . . . . . . 416, 4.37 
 
 Hiidcnach v. Slater 299 
 
 HiiiUie V. Dickson . . 74, 77, 237, 240, 505 
 Baker v. Morgan — Russell Election (Ont.) (2| .520, 
 
 528, 573 
 Hallagh v. Royiil Mutual Ins. Co. . 
 Bank of British North America v. 
 
 43, 45 
 
 578, 708 : 
 .-) i 
 
 Arnott, Re — Chatterton v. Chatterton 
 
 Artley v. Curry .. .. .. vo: 
 
 Attorney, In re 40, 035 
 
 Attorney-General v. International Bridge 
 
 Co. 49, 342, ,343, 022, 
 624, 742, 887 
 
 V. Midland R. W. Co., 158, 
 
 709 
 
 of Hamilton v. Blakeslee 
 
 of Montreal v. Foulda . . 
 
 V. Gilchrist . . 
 
 — V. 
 
 305, 374 
 
 Eddy, 246, 
 
 390, 707 
 
 585, 0.30 
 
 .. 030 
 
 109, 414 
 
 HaUher 148, 396, 418, 604 
 
 of Nova Scotia V. La Roche 153, 154, 155, 
 
 303, 709, 710 
 
 of Ottawa v. McLaughlin 74, 215, 219, 710 
 
 v. McMorrow , . 74, 258 
 
 of Rochester v. Stonehouse . . . . .300 
 
 of Toronto v. Beaver and Toronto Mu- 
 tual Ins. Co .. .373,819 
 V. Irwin 
 
 B;inks v. Bellnn.y 
 Banncrnian v. McDougall- 
 
 Election (Dom.) . . 
 Barber v. Morton 
 
 v. Russell 
 
 Barker v. Furze . . . . 710, 
 
 V. Leeson .. 91, 170, 171, 
 
 Barnett v. Union Mutual Fire Ins. Co. 
 Barr v. Doan . . 
 Barrett, an Insolvent, Re 
 Barrie Cias Co. v. Sullivan 
 
 B^irtlett V. Jull 
 
 Bates V. Mackey 
 Batt Re— Wright v. White 
 Beamish v. Kaulback . . 
 Bcatty V. Currie— Welland Election (Ont.) 529, 
 
 546, 56() 
 Beaty, an Insolvent, Re . . . . 59 
 
 .204, 29.3, 401, 77* 
 . . 220, 018 
 -South Renfrew 
 
 570, 571, 573 
 82, 053 
 
 393 
 
 705, 818 
 
 388, 706 
 
 308, 709 
 
 ..289 
 
 . . 90 
 
 . . 190, 822 
 
 ..467 
 
 636, 705, 706 
 
 ..275 
 
 ..747 
 
 Bryce 
 
 Cromwell 
 
 Samuel 
 
 Boardman 
 
 Maauire 
 
 15' 
 
 00, 
 
 (, 389, 708 
 .. 398 
 
 59, 67, 91 
 
 .. 6.33 
 
 295, 304 
 
\ III, 
 
 TA15I.K OK CASF.S. 
 
 ISiaiiiiiniit V. ( 'r.itiip . . 
 IV'i'ki'tt V. .lohiisloii . . 
 Ilc'iiirr V. ( )liMr 
 r.iil~t,iiii \-. i;. ilstcm . . 
 11.11 iui'l I'.lick, III' 
 
 . V. Ilisll 
 
 ■ V. I.linlnli 
 
 -- V. !,(■.■ 
 
 — V. Mr|»nl|-ull 
 
 V. Ui.l.lill 
 
 |!cllci>ll;in-r I'lliatidll (Ddlll.) I.MIIlc V. |)(w- 
 
 iiiiiriiTs r.:{!», r.,m, r.7t!. 7IS 
 
 I5.ihl( r, It. 
 
 It.iiuctt V. (Jminl 'I'liiiiU I!. W. ('.>. 
 
 (Ill, (MS. 
 
 . . HS 
 
 , .'JO, :n, .".Id 
 . . •-'.'lit 
 . . '-•-'.■I 
 
 •JOI.T'.'S ,sj(i 
 
 'Jii 
 
 l.W, Hi), 1(1 J 
 7!t.'», Hl.'l 
 
 81, ii;i, :t-':{ 
 
 roM'MN. 
 
 Unukvill.' Kl...!tic>ii (Oiif.)— Flint v. Kit/. 
 
 ximnioiis r.Ki, 5i!i, 5*22, slT), rai, r^'X,, rAO, 
 
 f),-.7. r.74 
 
 llr.Mliv.ht V. Ki.k <H)7 
 
 IliDiiHiiii iiii.l til.' City of Ottawft, In n- . . ISll, 
 
 (171, fiiCi, 818 
 liniwii V. Minwn .. .'i77, '>S(>, 708 
 V. Ciinnty of York (IIU, (111 
 
 V. sw.ct . -u, 4.S, m, 1 10, .'101, .-.(to 
 
 Uiowiio V. I'inM.inc.uilt . . . . 410 
 
 llni''.', CoMiity of V. M.!l,;iy (108 
 
 IIiiism'Ih, \'iirn-c of V. Honil.l '2S.'., 177, »H7, .".Ol 
 
 rt'J, SI 7 Hiyiui V. .Mitcli.!l 
 
 •_';U, .•108 
 
 I'.td. .'(»■-', 
 (170, (iSd 
 n.'niiiiiK.if V. YliniHlipr . . cr., 101, 7;.'S. SIO 
 
 l'i;ri,'iii V. Miii'.lonal.l - Corinv.ill I'll.i'tioii 
 
 (iioiii.) r.u. .njii, .'.-'!i, .■.•{;. 
 :<:\-2. .-.;i.".,.-.:!7, r.n, r.i7, .">7.t 
 
 Cornwall lOKiti.n 
 
 (I). in.) cj) ni.-., r.n 
 
 li.i'ki.'lrv's 'I't-imts, Uc5. . .. .. .. 770 
 
 Hcni.inl V. CoutcllitT . . . . 500, r.O;i, .".(t t 
 
 I'li'i'i'y V. ZiMHH . . . . . . . . Jf'-'.'t 
 
 Ilctliiiiii' V. Coli|ulioiin -Storinont 1''.le ■tinn 
 
 ((tnt.) '*['>, '>\r,, .-.•_M, r-i;), .->•.»■», .vj.-., r.-is, 
 
 r.fid, .".70 
 
 lliv'UMr V. l'ii'^<,'ar . . . . . . 7, ;"i7S 
 
 V. Way.. .. .. .. 471, (U:! 
 
 llitliii'toii V. I'rovint'i.'il Ins. Co. of Canaila .•!•". J, 
 
 ;{-.!) 
 I'.ir.lsall .uiil tliu 'r<»wiisliii. of Asidiodcl. In 
 
 re. .100, 7SS 
 
 Itirk.itt V. M.dnire . . . .581, 584, .'.S.S, 051 
 
 His.si.tt V. Stra.'liin Id-' 
 
 lilack v. I'hinilj -Niag.ira Election (Doni.) 5:15. 
 
 34;}, 57."{ 
 
 V. Stri(^kl,ir.(l (18. SO 
 
 lOiin V. Bl.iin (>:{■-' 
 
 I'.lak.i V. Kirkiittiii'k.. 13,128,41!) 
 
 niaii.l V. Aiiilriws •JI8 
 
 V. I'laton '202, 407 
 
 IJl.iiKiy V. M.tliiath 157,-585 
 
 liluek' r anil lli'mlcrson, In re 4(1 
 
 I!lo,.inti.'M V. l?i-ook(! 151, '270 
 
 Hluo V. Arkcll -Hast KIgin Election (l>.)in. ) 548, 
 
 574 
 Hoard of IvUication of Morri.sbnrg v. The 
 
 Townshipof Winchester (1(14. 
 (105 
 
 of Xapaneo v. The Town 
 
 of Napance, Ho 444, (162 
 Hoardiiiaii v. Scott— North (ir.jy l']loction 
 
 (Ont.) . . . . fi.Sl, .5;?4, 5,50, .550, 5(]1 
 
 Booth V. Mclntyre . . 121, 195, 10(1, (iilO, 002 
 
 V. Prittie r28, 448 
 
 Hoswell V. Sutlu^rland. . 130, 179, 2S0, (111, (ilO 
 IJothwcll I'llection (l)om.) — H.'vwkin'? v. 
 
 .Smith 521, 5^27, 5'28 
 
 In re . . 37, 507 
 
 Bonlton V. Howland . . . . . . . . 475 
 
 Boustcad V. Shaw . . 62, 302, 303 
 
 Bowes, In re . . . . . . . . . . 59 
 
 H(.y.l V. (ila ;s 297 
 
 — ^ V. McXutt 8, 709, 710 
 
 Boys' Home of the City of Il.amilton v. 
 
 I^wis '2G8, '270, 79(1, 807 
 
 Bradley v. Clarke . . . . 248, 70.1, 701) 
 
 Brannen V. .Tarvis .. .. .. 614,732 
 
 Braylcy v. EUis 57, 300 
 
 Brig;,'s V. Eee .. .. .. .. .. 419 
 
 Bright V. McMurray 23.5, 42il 
 
 Brock V. City of Toronto, In re 490, 745, 760, 785 
 
 llii.'lin.'rv. Ciirrie -W.'llaiid Kl.'.ti.in (Out.) 
 
 (2) . . .5;U, 5;»."., 544, 547, .5."):i, .".00, 5iil, .572 
 Bn.ko V. .Murr.iy .. 033, 70.S. 709 
 
 Biiillin:,' and l/.m AH!<n3iatiiin v. (larswell 471 
 
 lluisl, V. ,Mi:('..ml>o 213 
 
 Billivant, an Insr.lvent, Ke . . ..64 
 
 lliiiilin,' V. I.aidlaw . .. .. 687 
 
 I'.md.tt, aSoli..it.)r . . . . 4 4, 21(1, :<!)l 
 
 li.iik.' V. Tavlor '259. '282 
 
 Bin. V. (iilVoiil . . . 734, 771 
 
 l!iiin"tt V. Union Miitnd Fire In*-. (!o. 318, 711 
 Biinilnin v. (! .rvey . . . 8, 103, 421, 43(1 
 
 V. Kerr— We!4t Northumln'rl mil 
 
 I'Moction (Uom.) 570, .571, 573 
 Biinitt V. Bnri-itt .. 301, 77-2, .807 
 
 . V. .Miiiiloi'k 392, 700 
 
 Burrow.s V. Li'ivens .. .. .. .. '288 
 
 Bas.SL'll V. Bari.er-lldton Kluction (Out.) II, 
 
 519, 5;i(), 539, 5.50, .55.3, .57(1 
 
 ButliT V. llosenfeldt . . . . 8, '20, 21, 101 
 
 V. Stand ird Firo Ins. Oo. . . (143 
 
 Bnttorli.ilil v. W.dls 
 
 42, .59, 773 
 
 C. 
 
 Caldwell, V. McLaren 
 (MlaL,dian, Re .. 
 Calvoit V. Black 
 V. Biirnhani 
 
 (Jaineron v. ('anipl.ell 
 
 V. CIncas 
 
 V. McDoug.nll 
 
 783 
 
 4.53, 667, 707 
 . . '222. 778 
 625, 722, 743 
 . 439, 77-2, 811, 817 
 454. .527, .591 
 North Middlesex 
 Election (Out.) 542, 543, 540, 547, 5.50 
 
 — Re 338 
 
 — lie, Infants 590,710 
 
 — V. Leronx . . . . 580 
 
 — V. Maclennjui — North Victoria 
 
 Election (l)oin.) 184, 2'20, 514, 517, 
 528, 5'29, .536, 537, 541, 551, 564, 565, 
 
 574, 575 
 North Victoria 
 
 Election (Uom.) ('2) 18.4, 518, .5'20, 
 521, .53'2, .548. .57 4, 671 
 
 V. Wellington, (Srey and Bruce R. 
 
 W. Co. '204, 254, 62'2, 674, 740, 741, 
 
 74,3 
 
 ( ;anii)an v. Lucas 706, 708 
 
 C.iinpl.ell V. C.imphcll 303, 579, 618, 620, (140 
 
 V. Mcl>ougall 1.58 
 
 V. Prince 171, 172, 177, 504, 5011, 310 
 
 • V. Robinson 460, 652 
 
 V. Victoria Mutual Fire Ins. Co. 3(V2, 
 
 810 
 Campion v. Brackenridge . . 50, 460, 618, 7'26 
 Canada Atlantic R. W. Co. .ind the Town- 
 ship of C.ambrid£,>^ In re . . 689 
 
 Central R. W. Co. v. McLaren 12. '250, 
 
 256, 250, 400 
 V. Murray .. 659 
 
1 
 
 (i!)K 
 
 rm 
 
 .. 7h:? 
 f.fi7, 7!>7 
 222. 778 
 722, 74;i 
 811, 817 
 527, mil 
 
 Uesux 
 
 15, 547, 550 
 .. 338 
 590, 710 
 .. 580 
 
 ctoriii 
 514, 517, 
 5ti4, 5(i5, 
 574, 575 
 itoria 
 
 , 518, 520, 
 
 i, 574, «7I 
 
 ICC \l. 
 
 740, 741, 
 
 743 
 
 70(;, 708 
 
 , 620, (i40 
 
 .. 158 
 
 1, 50(), 510 
 
 4(i0, <)52 
 
 Co. 3()2, 
 
 819 
 
 , (J18, 726 
 
 'own- 
 
 .. ()89 
 
 12. 250, 
 
 ), 250, 400 
 
 .. 059 
 
 Ciinndiv I'iri' .uid Marine Ins. Co. v, WcHti'iii 
 
 A'imiriiiii'i' Co. , . . 383 
 
 I.aiiilrd ('ri!ilit Co. v. TluiriipHini 507, 775 
 
 riiitiaiiciit l.onn and ."^avitii^s (!(i. v. 
 
 McK IV 4.S0, 701 
 -V l''(.l.'v . . 2.'ll) 
 
 TABT-R OK C.NSKf?. 
 
 COl.I'MN, I 
 
 CI irkii V. Cici;^'lih)ii 
 
 V. Kin ('11 
 
 V. Mardimild 
 
 V. Ml d'Aviii;,' 
 
 V. Wl.itu 
 
 l.V. 
 
 liil.lIMN. 
 
 .. .322 
 
 . . 3SS, 732 
 
 218, 2l!t. 3I« 
 
 <J07, (il2. 70!t 
 
 7.".(;, 818 
 
 .57, 5S, (;!2 
 
 C.'inadiiii I 
 
 V rciK'v .. \:,vi ('l.uk:4<)ll V. W'll h- .. .. ;>/, •'■>, xii 
 
 _ — Taylor l!»i. 2(14, 3 t8 ( 'l^avnr v. Nortliol ScdHand ( 'ana li iii .M.rt 
 
 Sdiitlicni l{. W. Co. v-: ifitrriiatiniid i «aKo C 140. I <t2, 212, -;!!», 740 
 
 "■■-"■ 71, 387, (I3!», 7!I3 ClfiiMA V. M(H.th '" '"' '-'•-••" 
 
 hridi'c Co. 
 
 . .1.", 151. 47i;. 720 
 
 {.ink of Coiimicrco v. Croiiuli 3.3 3'i, i CIrii li v. (loiiHoliil.ited ISaidt nf (Jmidi liO, 772 
 
 4.S, .■).■!;)'< 'I iiiM' V. Ciindi Soiitln'i-i K W. C .. 31(1, (;7 t 
 
 - V. (irt'f'n 7(i, 78, ('i.'i3 ('low v. Cio'.v 
 
 - V. TfiMlior .. 3H!( I Coi'lir' inc! V, iimirlu'r 
 V. \Vc Mid ward 80 ' Cnll.crt v. Kicks 
 
 Scniritics Co. v. rniiitioii 7!», 82. (!)I8 [ < 'olc v. C.im|dicll 
 
 Cftiiavaii V. Mcrk .. .. .. 7'l Cullirdv. Ilciin.'tt 
 
 7S,S, I'Mt 
 
 . !);!, Ill, l::i. (m7 
 
 IIJ. C.IC. 
 
 221, 3S<», 40!» 
 
 . .302 
 
 M'ini;k I'l' I i >'i 
 
 . 510, 541). .'.().•), .572 
 
 275. cn. 707 
 
 2-_N, 3.3S, 441 
 
 Ciuinoi' ', 'I'liiiinlc) Cdi-ii KxclianLri? 20. Md. 5(1(1 ( olliar v, McC.dl 
 Cunhvfll i:iictii>ii (Out.)— ()'Callij,'lian v. | (Hal) 
 
 l'"l(slicr' . 5.30 Cull ver V. .Sw.ayzio 
 
 — (l>om.)- llruiti V. Cam | Colli ird. Rf ,. 
 
 eroii ,. .. 514 ; Coltoii. Ilo Kishcr v. Colton 271, 272, 275, (i.'i7 
 
 Carillon lllii.'tion (Ont.) — Lyon v. Moidi 540 < Cnnipton v. .MircanHli' Ins. Co. 351, .357 
 
 5(10 : Conni'rtii'uh Mntii il Life In-i. Co of llarf- 
 
 Carlislr V. I'ait 8,5. 8S, 01 ' ford v. .Moon; .. .. .50.5. 507. (I.'S 749 
 
 Carniich.at'l V. l''(!rris .. ,, ., 2.32. 725 ' Connollv v. ( t'lUilly ,. .. .. 175 
 
 V. .Sharp Kit. 5St ■ Cook V.' hrnilfr hniidas Kli'ction (( >iit ) . . 114, 
 
 (!arroll V. lMt/:,'rrild .. .. 4.320.327,4.38 1 ^ " " 
 
 — V. Willi iniH, 
 
 4()(i, 710. 741 
 
 391, 407, (!14, Olll 
 
 101, 221 
 
 CartT V. Ilatih 
 
 Cartwri^'lit v. IlindH . . . . 
 
 Casi'.uliii V. Miinroo— West Klgin Mln'tion 
 
 (Ont,) 528, .51) ;,,577 
 
 O.iscy V. h't'iris Kast Xortliiimborland Klm:- 
 
 tioii (Out,,) .534. .5,55 
 
 CdHwi'll V. Murray 
 (JaiiL'liill V Cl.arki 
 
 Ceiitri' \Vflliiii,'ton Kloutioii (Doni. ) -lion 
 
 Hid • V. Oitoii . . . . 51.5, ,5()(), 51)2 
 
 Chadlioiini.' V. Cliadlioiirno .. .. 8')1 
 
 Cliainliorl liii V. Arinitrong . .,392, ,394, 472, 70i) 
 
 V. Cl.irk 427 
 
 — V. Sovii.s . ..4()0, 400. -W, (!57 
 
 V. 'riiniia' .. .. .. 2i 
 
 — and tlio Unitiid Cmintios of 
 
 St MMii'int, l>ii idas, and (Slungarry 0'{5, (KH 
 Cliainl)i'rl ■n V. Chrk . . .. 271,317,117 
 
 Chap'ii HI V. l/irin . . . . . . . . 71 .'. 
 
 V. Sniidi . . . . (i.3.3, 7(r), SI!) 
 
 Cliarl'S, iJii -Kiiltin V. Wliatnionth .. 803 
 
 Charli'Viix llluctioii (Doiii.) — Ciiiiin v. Pel 
 
 riult 
 Charlto 1 V. Watso 1 .. .. 30,31,001,721 
 
 Clicviii :r V, (iiivilliiT. . . . . . . 7H 
 
 Chcviior V. 'Pill! Q luun 19.3, 201, 423. .507, (SO;) 
 ClirisMi! V. Cr 111 way . . . . 157, 3!)0, 'i31, 710 
 
 -v. St ifk -North Wentworth Kiou- 
 
 tio.i (Out.) . . . 53.3, .5.')!), 5li0, .'idl. 5';2 
 
 530, 514. 517, 549 
 V. Civdit Vdlry I!. W. C I .. .310, 72S 
 
 V. Clint 21)2. 437, 503, .501. .505, 710. 772 
 
 Cooprr V. Hluklock .. , . 77, 321, (147 
 
 V. Cintnl Oiit.irio 11. W. Co. . . (103 
 
 V. Ilamiltoii 424 
 
 V. Kirkpatrick .. .. 5(1,745 
 
 Corby V. Williams 112,051 
 
 .. .5, 151. l,55iCop'oian V. IJolil '207 
 
 74, 2,50. (Ill 715 1 Conir.ill V. Ahull 88 
 
 Christoplnr V. No.xon 138, 110. 141. 113. US, 
 
 150, 239, 254, (103 
 
 Church V. I''oiiton 28. 30 
 
 — ; V. Fiiller ., .. ., 741 
 
 Ciinon V. I'orrault — Charlevoix Klcotion 
 
 (l>om) 53,-, 
 
 Citizen <' ins Co. v. I'arsons 11, 115, 110, 17.'), 
 354, 3()3, 38(). 589. 058. 74:) 
 City Li^ditand HiiatiiigUo. v. Macfic 15!). (120, 
 ^, , 022. 023 
 
 Clark V. Ro^rert 182, 447, 401}. 700, 720, 721 
 
 V.Clark 578, .58), 70S 
 
 V. (lriM;,'htrtu 1.58,1(13 
 
 V. Scottish Imperial Ins. Co. .. 3.5,5, ,381 
 
 Clarke, lie . , . , 4tj 
 
 ■ V. Uarroa 
 
 (Jornwall Eleetion (Doin.)- -l?er!:in v. M le- 
 
 doiiaM 514 52(1, 52!t, 531, 
 5,32 535. 5:17, 541, 573 
 
 — ■ (Dom.) (2) — Mergin v. 
 
 M ledoii lid 515, 544 
 
 (I)oin.) (3) M ii'lciin m v. 
 
 Bergin 211, 5:il. 511, .501. 
 .505, 570, 574 
 
 • (Ont.) — Snotzinger v. 
 
 Melntyro .. 510, .509 
 Cn><t;r ivi- V. R lylc .. .. .. ..70 
 
 Colli V. .Vlor,' III .. .. 11, 31, 493, ().59 
 
 V. Sta li.ion-i Tils. Co 135,239 
 
 Cottoi V. MitcnoU 4.W, 5S1 
 
 535 ' Coiihon v. Spior.s . . . . 17'), ;!SS, 710 
 
 Court V. Holland 0, .>S, 243 291. 45(1. ID, 4lil, 
 
 474.477, (132, 731, 819 
 
 ■ Ex parte Dorm .. 257, 474 
 
 llidlaiid an 1 W ilsh 212, 
 
 25 >, 257, 474 
 V. Seott . . . . 126, .397, 030, 0(1 i, 819 
 
 — - V. W.ilsh . . 
 C )Waii V. Doolittlc 
 (fowling V. Dickson . . 
 (Jraig V. Dillon. . 
 Crithtirn v. Hell 
 Cr.awford v. Crawford 
 Creightoii v. (yhittiek . . 
 Oerar and Muir, Ue . . 
 Crone v ' Irone, . 
 (Voimv. Oh iinborlin. . 
 Crouyii, Kew and Bctts, lie.. 
 
 42!} 
 
 108, (1,55 
 
 290, 412, 413 
 
 .. .591 
 
 79,314 
 
 .. 410,709 
 
 56, .507, 010, 777 
 
 44, 468 
 
 10, 213, 381, 439 
 
 21)5, 4110, 409 
 
 44, 40 S, 470 
 
 (Vo.ss V. Miji'riiicy — Hdt in Klectioii 
 
 (Dom.) 531, 530, 543, 544, ,552, 507 
 
 V. Cnrrie 78, 81 
 
 Crowe V. Steeper . . 98, 213, 279, 4S4, 492 
 171,508 Crowther V. Cawthra. . .. 208,21.3,820 
 
TABLE OF CASES. 
 
 Cruso V. Bond . 
 V. ( 'lose 
 
 • ni.v 
 471, 474, 
 
 Cniickslinnk v. Corbey 
 
 t,"ulver«ell V. Caniijton .. .. 64(), 
 
 C'uiiiiiiing V. Low 
 
 (Juinniin^'s, I!»t. . . . . , . . (i(i(i, 
 
 Cuiiuiughun V. Canada Southern R. \V. Co. 
 
 177, 
 Currie v. Currie 
 
 Curry, l?e— Wright v. Currie ; Curry v. 
 Curry t'70, 589, G.31, 
 
 MX. 
 47'2 
 708 
 
 14 
 731 
 
 1.3 
 
 (;()7 
 
 175 
 
 7r)i 
 
 589 
 (i42 
 
 Dalby v. B -11 . . 
 Dalev. Hall 
 l)auce^ V. liurus 
 iJanford v. Uaiiford 
 iJaujoii V. Mar(|ui8 
 lyarling v. Darling 
 
 V. I'rice 
 
 Davidson v. Belleville and North Hastini's 
 
 n. w. Co. 
 
 ( 'anieron . . 
 
 V. M.iguire . . 
 
 — — V. Oliver 
 
 V. I'apps 
 
 Davies v. Fuuston 
 Davis, Re 
 
 V. DennLson 
 
 V. Murray 
 
 V. Wiekson 
 
 Day V. Harris . . 
 
 Dayer v. Robertson 
 
 Dean v. Chamberlain, In re 
 
 COLUMN. 
 
 Doyle V. Bell 115, 527 
 
 V. Owen Sound Printing Co. . . . . 207 
 
 Draggon, Re— Abel v. Draggon— ])raggon 
 
 V. Draggon . . . . 272 
 
 Drew V. The Town.ship of Kast Whitby Ar,0, 407 
 Driiikw.iter v. Clarridge, In re . . 215, 219 
 Drisooll V. (Ireea .. ..85 
 
 Dryden v. Woods 801 
 
 Dueondii v. Dupuy .. .. IS.S, 758, 780 
 
 Dull' V. Canadian Mutual Fire Ins. Co. 47, 108, 
 
 180, -M;]. .-{74, 625 
 Dufferin Election (Out.)- Sleightliolni v. 
 
 Barr . . . . . .555, 5()4. 5()7, 569 
 
 Dumblc V. Cobourg and Peterborough H. 
 
 W. Co 404, .■():{, (i38, 675 
 
 V. Dumblc . . . . 797, 799, 805 
 
 ■ V. Larush 4.S.S, 626 
 
 Huubar V. Meek .. .. 251,(;05, 719 
 
 Dundas Election (Out.) — Cook v. Tinider . 114, 
 
 r^■^'.). 544, 547, 549 
 
 , Town of V. Gilmour. . .395, 605, 709, 765 
 
 Dunham, Be ■!;«, (i(!(), 6t')7. 817 
 
 .168, .396, ,577, 766 i Duuloj. v. Canada Central R. W. (_'o.:{,38, 670, 675 
 
 Duunard v. McLeod (i42, 708 
 
 Dunsforil Be — Dunsford v. Duusfoi.l 247, 710 
 
 D. 
 
 164, 6.39 
 
 249 
 
 737 
 
 511, 715 
 
 11, 119,262, 446, 747, 718 
 
 245, 707, 778 
 
 303 
 
 1.56, 168, 397 
 
 62, 297, 302 
 
 271, 804, 811 
 
 58, 584 
 2.5.3, 313, 819 
 470, 509, 700 
 . . 226, 727 
 
 .. 602 
 85, 248, 294, 709 
 
 ..810 
 .. 632,710 
 158, 170, 445 
 
 South Korfolk Eletti(ui 
 
 .532, 54(;, 554, 567 
 243, 42.5, 817 
 208, 247, 416 
 81, ().54 
 16, 26 
 . . 590, 631 
 . . 363, 366 j 
 
 282 
 
 206, 2.'58, 510 I 
 141,2(9' 
 
 782 I 
 
 . . 283, .346 
 459, 700 
 
 Decuw V. Wallaee- 
 
 (Dom) 
 Defoe. He 
 
 Denmark v. Mc Couaghy 
 Devanney v. Brownlce 
 
 V. Dorr 
 
 Devitt, Be 
 
 Devlin v. Queen Ins. Co. 
 Dewar v. Mallory 
 Dewe V. Waterbury . . 
 Dick.son v. McMuiray 
 
 v. ( arnegie . . 
 
 — V. Hunter .. 
 
 Dilke v. Douglas 
 
 Direct Cable Co. v. Dominion Telegraph Co. 209, 
 
 622 
 ' United States Cable Co. (Limited) 
 
 V. The Dominion Telegraph Co. ot 
 Canada 14, 15, 17, 126, 180, 285, 619, 
 
 624 
 
 Dixon V. Crofatf 414, .509, 788 
 
 Doliell v. Ontario Bank 70, 149, 313, 647, 758 
 Dobbon V. Marshall . . . . . . . . 629 
 
 Dockstader v. I'hipps 231,608 
 
 Dodge V. Clapf) . . . . . . . . 579 
 
 Dominion, &c. Co. v. Stinson . . 162, 246 
 ' Loan and Savings Society v. Dar- 
 ling 157, 204 
 
 1 ypc Founding Co. v. Nagle . . 733 
 
 Donovan, Re- Wilbon v. Beatty 45, 275, 396 
 
 V. Hubert . . . 422, 4,32, 762 
 
 Dorland v. MeCuaig — Prince Edward Elec- 
 
 tion (Out.) (2) 
 Doubledee v. Credit Valley R. W. 
 Douglas V. Fox . . 
 
 V. Grand Trunk R. W. Co. 
 
 Dovey v. Irwin 
 Dowuey v. Parnell _ . . 
 
 516 
 169 
 793 
 
 678, 681 
 242 
 
 '.'. 462 
 
 Co. 156, 
 502, 762, 
 
 E. 
 
 Earls V. McAlpine 813,817 
 
 East Elgin Election (Dom.) — Blue v. Arkell548, 
 
 574 
 
 H.istiniis Election (Don). )—Aylesworth 
 
 V. \Vhito . . ■ . . . . .')26 
 
 NortlnunberlandElection(Ont.) — ( 'asey 
 
 V. Ferris . . 5.34, 555 
 Eleetion ( I )(iiii. j -' lib- 
 son V. Biggar 532, 566, 
 573 
 
 Peterborough Election (Out.)— Stratton 
 
 V. OSullivan .. .528, 'M), :AQ, 560 
 
 Toronto Election (Ont.)— Benniek v. 
 
 Cameron 535, ,")36, 542, .■)47, ."I'l--, 555, .572 
 Eaton, Re— Byers v. Woodburn .. 640 
 
 Edgar v. Magee . . . . . 78, 4.38 
 
 v. Northern IJ. W. Co. . . 496, 618 
 
 I'dwards v. Cook — Nortli Simcoe ICIectiim 
 
 (Dom.) 106, 517, 562, 5(i4, 5i>9, 570, 
 
 574 
 
 v. Morrison . . 2.37, 296, 467 
 
 v. Pearson 809,811 
 
 Egleston v. Taylor, Be . . . . .15 
 
 Elliot V. Cai)ell . . . 7, .32, .35, .395 
 
 Elliott v. Brown .321 
 
 v. Gardner . . . . 6.37 
 
 Elli^ v. Eraser — South (Jrenville i'.leetion 
 
 (Out.) 2.53, 516, 517, 524, 52.5, .528, 773 
 
 V. Midland B. W. Co. 127. 1.30. 149, 176, 
 
 177, 280, 448, 7.36 
 Emerson v. Niagara Navigation Co. 22, 103, 
 
 450, 651. 703, 736 
 Enimens v. Middlemiss . . . . . . 250 
 
 Emmett v. Quiun . . 203, 407, 408 
 
 Enipey v. Kerr — Stormont Election (Out. 
 
 (2) .562 
 
 I English v. MulholLand, In re . . 215 
 
 and Scottish Investment Co. v. Gray 474 
 
 I Erb v. Great Western B. U . Co. (>.")(», ()84, 686 
 ; Essery v. Court Pride of the Douiiiiion (i, 20, 
 1 147, .309 
 
 I Evana v. Sutton, In ro . . 219, 778 
 
 I v. \Vatt 72S 
 
 I Exchange Bank v. Barnes 5, 240, 623, (i52, 656 
 v. Newell . . 47, 708, 710 
 
TABLE OF CASES. 
 
 XI. 
 
 813, 817 
 
 \rkell548, 
 
 574 
 
 .. .'i26 
 
 ( 'ascy 
 f)34, 555 
 
 573 
 
 rattdii 
 :», .•')49, 560 
 tk V. 
 -.1, r^^n■>, .572 
 .. 640 
 78, 4.38 
 4!H), (jl8 
 ectiiiii 
 '.tiO, 570, 
 574 
 •2fl(i, 4G7 
 80'J, 811 
 . 15 
 3-_>, 35, 395 
 .. 321 
 . . G.37 
 tiction 
 •), r)-.'8, 77.*i 
 . 149, 176, 
 U, 448, 736 
 •2->, 103, 
 1 . 703, 736 
 .. 250 
 ;{, 407, 408 
 (Out. 
 .. r-,62 
 .. 215 
 . Oiay 474 
 lO, (i84, 686 
 .11 6, 20, 
 147, 300 
 219. 778 
 .. 728 
 13, (1.52, 656 
 [1, 708, 710 
 
 EAch.inge Bank v. Springer 
 V. Stinson 
 
 P. 
 
 COLUMN. 
 
 . . 5, 240, 623, 642, 
 
 652, 65(5 
 
 108, .503, 608, 709, 
 
 713 
 
 Falkiner v. Grand Junction R. W. Co. 43, 142, 
 
 145, 147, 686 
 Farewell v. Brown — South Ontario Election 
 
 (Ont.) 176, 532, 534, 5.-)8, 
 
 560, 566, 575 
 
 Fargoy v. Grand Junction R. W. Co. 674, 690 
 
 Farliuger v. McDonald . . . . 84, 85, 89 
 
 Farmer v. Hamilton Tribune Printing Co. . 206 
 
 V. Livingston . . . . . . 195, 231 
 
 Farroll V. Cameron' .. .. .. 319,773 
 
 FaukLs V. Harper . . 427, 470, 606, 708, 709 
 
 Fawcott V. Hurwell 3.33, 386 
 
 Fee V. MclUiargey 219 
 
 Fenelon Falla v. Victoria R. VV. Co. 49, 343, 
 
 493, 676, 762 
 Fenton and The Board of Audit of the 
 
 County of York, In re 48, 50, 165, 192, 446 
 Fenwick v. Donohue . . . . 394, 400, 764 
 
 Ferguson, Ro . . . . . . . . . . 337 
 
 V. English and Scottish Invest- 
 
 ment Co. . . . . 475, 745 
 
 V. Ferguson. . . . 160, 435, 772 
 
 V. Freeman 29, 30, 201, 255, 453, 819 
 
 V. Veitch 502,728 
 
 Ferris v. Ferris 6, 330, 604 
 
 Finn v. Dominion Savings and Investment 
 
 Society 341, 650 
 
 Fire Ins. Association (Limited) v. Canada 
 
 Fire and Marine Ins. Co. 
 Fishery. Anderson 
 
 V. (.raham 
 
 Fiskeii V. ijh:imberlain 
 V. Iiiee . . 
 
 V. .. Neiu .. : 
 
 COLU.MX. 
 
 Fredericton, The Mayor, &c., of v. The 
 
 Queen 119 
 
 Freed v. Orr 47, 160, 173, 174, 178, 265, 271 
 Freehold Loan and Savings Society v. Far- 
 
 rell 95, 111 
 
 Friendly v. Carter <)29, 764 
 
 I ryer v. Shields 64, 449 
 
 Fidler v. McLean 640, 708, 774 
 
 Fulton v. Upper Canada Furniture Co. . . 126 
 
 V. \Vhatuiougli— lie Cliarles . . 803 
 
 Furlong V. Carroll 281,400 
 
 Fox v. Toronto and Xipissing R.W. Co. 691, 694 
 
 G. 
 
 G- 
 
 V. R- 
 
 .. ,327 
 .. 2.59 
 .. 802 
 .. 64 
 337, 052 
 
 239, 375, .367 
 101, 817 
 .. 318 
 248, 710 
 
 Fitch V. M:i;^c— lu re Welland Canal En- 
 
 59 
 
 la r^'* Hi 4 D I . . 
 Flake v. i.iiipp. . 
 Fla.,.lv;> V. vL-.-ih-n.. 
 Fleiij:jii' V. hiJ 
 'v. ^;:i...-.-u^all.. 
 
 v. M ..VabtJ 
 
 Fleury. K/. — FK.ury v. Fleury 
 
 V. i.'.jplaiid 
 
 Fletcher, Re . 
 
 and Noble, Re 
 
 v. Noble 
 
 V. Rodden . . 
 
 Flint V. Fitz.-iimmons— Brockville F]lection 
 
 (<Jnt.) 516, 521, 522, 525, .526, 5.35, 
 
 040, 357 
 -| — and Jellett, In re . . 41, 46, 159, 229 
 Foley V. Canada Permanent Loan & Savings 
 
 Co. 4, 335, 405, 456 
 
 Foott V. Rice . . . . 202, 237, 330, 334, 769 
 
 Forau V. Mclntyre .. 121,196,69.3,761 
 
 Foihan V. Lalonde .. .. 4(9,773 822 
 Forr(!ster v. Forrester 
 
 V. Thrasher 
 
 Foster V. Morden 
 
 ..113, 232, 414, 793 
 
 400 
 
 . . 285, 337 
 
 733 
 
 ..474, 725, 726, 797 
 ..25,31, ()49 
 .,580 
 .. 714,819 
 ..41 
 ..154 
 .. 155 
 .. 426 
 
 330 
 
 6.: 318 
 
 .. 37,91,693,708 
 
 2.38, (i6 1 
 
 ..394, 589, 608, 71 J 
 
 220 
 
 226, 227, 434, 463, 465, 726 
 
 291 
 
 203 
 
 * rizer v. Gore District Mutual Fire Ins. Co. 353, 
 
 354, 648 
 
 V. Stokes 
 
 Francis v. Francis 
 Franklin, Re . . 
 Fraser v. (iunn 
 
 V. McLean 
 
 V. Pouliot 
 
 (iignon V. Priuce 
 (Jairdiier v. Gaiidner. . 
 (Jalbraith and Christie, In re 
 
 V. Duncombe 
 
 (ialenio and Township of Rochester — Grant 
 
 V. McAlpine 220 
 
 Gallagher V. (i lass .. .. .. . . .54 
 
 V.Taylor 11,383 
 
 Gallerno and Township of Rochester, Re, 488, 
 
 8)8 
 
 Gananoque, Village of v. Stunden 617, 653, 656 
 
 j (Jannon v. Gibb . . . . . . .13 
 
 I Garlmtt v. Hewsou Re Woodhall . . 1.58 
 
 ; Garland, The, In re — Mouaghan v. Horn 447, 
 I 498 
 
 I Garson v. Garson . . . . . . 511, 739 
 
 : Gaughan v. Sliarpe . . . . 273, 619 
 
 I Gautliicr v. \Vaterloo Mutual Ins. Co. . . 3 iO 
 j GauLiircaux's Uail, Re . . . . 695, 09i) 
 
 I (Jeorgian Bay Transportation Co. v. Fisher 114, 
 I 341, 734 
 
 (Jhent V. McColl 32,35 
 
 Gibbs v. Wilder — North Ontario Election 
 
 (Dom.) . . 528, 533, 539, 544, 548, 552, 5,53, 
 
 554, 560 
 Gibson V. Biggar — E'ist Northumberland 
 
 Election (Dn:n.) . . 532, 5ii6, 573 
 
 V. Midland R, \V. Co. 72, 498, 677, 681 
 
 Gilihrist, Re 336, 667 
 
 V. Wiley 33 
 
 Gihlersleeve v. McDougall . . . . 5, 126 
 
 (iiles V. Morrow . . 22li, 227, 243, 710, 711 
 
 Gill V. Canada Fire and Marine ins. Co. 355, 
 
 360, 818 
 
 Gilkim V. Gillam 22,5, 451 
 
 (iillies V. McCouochie. . .. ,. 806, 81,5 
 
 (Jivius V. Darvill . . 775, 785, 807, 812, 813 
 
 Glass V. (Jlass 228,231,608 
 
 Gleng.irry Election (Ont.) — Maclunnaii v. 
 
 Craig . . 537, 546, 547, 548, 549, 571 
 
 Godeiich v. Brodie . . . . . . . . 642 
 
 (iodlrey V. Harrison .. .. .. 326 
 
 <;oli; He 429 
 
 ( Idiug V. Mackie 51, 707 
 
 (li>ldsinitli V. Walton . . . . 587, 6U3, 709 
 
 (Joodall V. Smith 714,778 
 
 Guoderliani v. Toronto & Nipissing R. W. 
 
 Co. 676,691,694 
 
 (Joodiiig, an Insolvent, Re . . . . . . 64 
 
 Goodman v. Regina .. 187, 189, 191, 310, 332 
 (Jootlyear Rubber Co. v. Foster . . 715, 778 
 Gorhain v. Boultbee — North York Election 
 
 (Ont.) . . . . 529, 535, 549, oM, 574 
 
 Gough V. Bench . . . . . . . . 742 
 
 V. Park 45, 708 
 
 Gowan v. Paton . . . . . . . . 774 
 
 Gowanlock v. Mans . . . . 181, 399, 412, 819 
 
XII. 
 
 TABLE OF CASES. 
 
 COLUMN. 
 
 Ciiviliaiii V. ruttcrsou— West York Kluotidii 
 
 (Out.) r)14, .'■.74 
 
 ■ V. Stephens . , . . . . . . 742 
 
 (iiMiiil JiiiictioTi H. W. Co. V. County of 
 
 lVtorl)-)rnn<,'li, Ro 'Ji. -100, f;sO, 090 
 
 ■ i:. W. Co. V. Mi.lla.i.l Jt. 
 
 AV. Co. Ls.s, -jol', '2sr,, i.y.i, 072 
 
 'riiiiik 1!. W. Co. of Canaili v. 'I'lic 
 
 Credit Valley H. W. Co. 104, 
 344, ,-.10, (wO, 7(J2, 
 i;. \V. Cf of Canada v. Kitz- ' 
 
 gcraJd . . . . 2r.4, GS5 
 i;. W. Co. V. Oiitario& Qiielcc 
 
 !!. W. Co .. 174, (;:il, C.34 
 
 • ii. W. Co. of Canada v. 
 
 'riin.iito, Crej- & Bruce (t. 
 
 W. Co. . . (!87, (>8S, 743 
 
 Grant, In re L'OO, ;^40, 44! 
 
 V. Canada Life Assurance Co. .. 4()8 
 
 ■ V. (irant 272, .'.7!) 
 
 V. Huiin 41(1 
 
 • V. McAlpine 220, 731 
 
 V. .McC.illuni — M(.iick I'lectinn 
 
 COLUMN. 
 
 Hamilton, School Trustees of the Township 
 
 of V. Xeil . . 243, (i(ji, (i(12, (iCt, fi65 
 Hanns v. Jolinst(.n . . . . 4, 5, 220, 759 
 
 Harding and Wren, Re .. ..16 
 
 V. Township of Cardiff 20, 232, 485, 
 
 486, 4!)j, 671, 788 
 Hargreaves V. Sinclair .. .. .. 205 
 
 Harper v. Davies . . . . 127. 448, 502 
 
 Harris V. Baiber — Halion Election (Out. ) 536, 
 
 .576 
 V. Mudic 
 
 Harrison v. .loso])h 
 V. Pinkney . . 
 
 Yeman 
 
 Grand Trunk E 
 
 424, 431 
 .387, 718, 724, 725 
 412 
 
 Harron v. 
 Harvey v. 
 
 (Doiii.) ., 
 
 V. O'ilara 
 
 V. VanXdnnan 
 
 Grass V. -Austin 
 
 .520, .521. 520 
 . . 435 
 . . 2tl8 
 S9, 1<)2 
 
 213 
 
 W. Co. 103, (03, 
 6S3, 709 
 
 V. Great Western R. W. Co. 103, 083 
 
 V. Pcarsall 220,227 
 
 Hastini,'s, County of v. Ponton 124. 2.39. 098 
 
 llately v. .Merchants Despatch Co. 12, 84, 103, 
 
 124, 179, 180, 221, 500, 006, 711 
 
 Hathaway v. Doig 49, 154, 156, 173, 342, .347, 
 
 350, 622 
 Hawkins v. Mahaffy . . . .195, 228, 202, 782 
 
 V. Smith — Bothwell Election 
 
 (Dc.m.) 521,527,528 
 
 Gravenlinrst, Village of v. Township of 
 
 Musknka 479, 009 
 
 Great Western Advertising Co. v. liiuncr. 
 
 Re.. .. 100, 171, 445 
 
 ■ R. \V. (^o. V. Brown .. 079 
 
 it. W. Co. V. Lutz. 229, 432, 091 
 
 Green v. Hamilton Provident Loan Co. 9.5, 4i>9, 
 
 819 
 
 V. Wat-on .. .. 181, .587, 780 
 
 Greenshi.lds v. Bradford .. 229, 428,431 
 
 Gleet V. Cil.zens In.s. Co . .108, 181, .3,52,358, 
 
 300, 303, 372 
 
 V. Meicantile Ins. Co. . . . . 303 
 
 — - V. Hoyal Ins. Co. 108. 358, 300, 30.3, 372 
 Griersnn V. (orl.ett .. .. .. ..52 
 
 Grilhn v. McKenzie 88, 93 
 
 — ; v. Patterson . . 235, 236, 264, 321, 322 
 
 Gritiith v. Brown 
 
 ■ V. Gritiith 
 
 Griitiths v. Parry 
 
 Grnom v. Darlington .. 
 
 Guelph 0. Co. V. Whitehead 
 
 Guest V. Guest 
 
 — — V. Hunter 
 
 Gunu V. C(.x 
 
 - — V. Trust and Loan Co. . 
 
 Gzowski v. Beaty 
 
 H. 
 
 Hagar v. Routhier — Prescott Election 
 
 (Dom.) 518,520 
 
 Hagle V. D.diymple, Tn re .. .. 214 
 
 Hale v. Kennedy .. .. .. ..173 
 
 Halifax. City of v, Kenny . . 737, 820 
 
 Hall, lu re 3, 8, 178, 179, 184, 185, 270, 315, 
 
 310, 395 
 
 H.alleran v. Moon . . 128, 261, 740, 743, 796 
 
 Halton Election (Out.) Bussell v. Barl.er 11, 519, 
 
 53(i, 539, 550, 553, 576 
 
 (Dom.) Cross V. Mci raney 534, 
 
 530, 543, 544, 5(;7 
 Hamilton v. Harrison. . . . 7, 84, 80, 89, 192 
 
 • V. Tweed . . . , 032 
 
 ' Provident and Loan Society v. 
 
 Curnell .. .. 271,291,774 
 
 229 
 
 !i6i, 640, eiV, 
 
 30, 
 606, 
 
 Hay V. I rake . . 
 
 V. Mc Arthur 
 
 Hayes v. Hayes 
 
 Hayman v. Heward . . 
 
 H lynes v. Fisher 
 
 Haywood v. Hay 
 
 Head V. Bowman 
 
 Heamin V. Scale 
 
 He Istrom v. Toronto Car Wheel Co. 
 
 Henderson v. Dickenson — Russell Election 
 
 (Dom.), In re 315, 316, 563, 565, 
 
 569 
 
 V. Hall 
 
 — V. Spencer . . 
 
 Hendrie v. Beaty 
 
 V. (irand Trunk 
 
 Canada . . 
 
 7.33 
 474 
 771 
 512 
 .37 
 703 
 709 
 307 
 713 
 
 
 423, 433 ; 
 
 
 . . 803 
 
 
 .. 63 
 
 , , 
 
 272, 708 
 
 
 2 to, .588 
 
 221 
 
 285, 327 ; 
 
 312 
 
 420, 822 ' 
 
 
 . 251 1 
 
 
 609, 619 
 
 407 
 
 472, 473 
 
 634 
 
 . . 724, 776 
 349, 634 
 R. W. Co. of 
 ..687, 688, 74.3, 820 
 
 750 
 
 ..251, 39.3, 398, 710 
 
 218 
 
 .. 210,415 
 812 
 
 Cardwell Election 
 
 324 
 
 514 
 710 
 338 
 708 
 
 V. Neelon 
 
 Henebcry v. Turner . , 
 
 Heuney v. .Scott, hire 
 
 Herring v. \\ ilson 
 
 Henry v. Gilleece 
 
 Hessin v. Baiue 
 
 Hewitt V. Cameron — 
 
 (Dom.) 
 
 Hewson, v. Macdonald 221, 632, 034, 703, 
 
 Heywood, Re . . . . . . . . 336, 
 
 ■ V. Sievewright . . . . 272, 
 
 High School Board of High School District 
 No. 4 of the U. C. of 
 Stormont, Dundas and 
 Glengarry, .and the Mu- 
 nicipal Corporation of 
 the Township of Win- 
 chester, In re . . 446, 453 
 
 of Stormont, &c., .atid 
 
 Corporation of Williama- 
 Imrg 9 
 
 ■ — of Stormont, &c., and 
 
 the Corporation of Win- 
 chester, In re . . . . 9 
 
 Hilderbrom v. McDonald . . . . 249, 707 
 
 Hill, In re 66 
 
 and Manufacturers Ins. 
 
 373, ()25, 694 
 
 302,319,778 
 
 288, 413 
 
 V. Merchants 
 Co. 
 Hillock V. Button 
 V. Sutton 
 
 Jani< 
 
TABLE OF CASES. 
 
 xiu. 
 
 COLUMN'. I COH'.MN, 
 
 Hinton v St. Lawrence & Ottawa R. W. ( 'o. all, ' Jannin v. Mero.lith— London Election (Out. ) 
 
 679, GSO, ()S1 i 533, 537, 54(j, 547, .")58 
 
 Hodgo V. The Queen . . .. I'20, 4'.KJ, 81!) , .larninl fn re 1S(), 285 
 
 Ho.l'iiis V. Johnston «8 i Jarvis v. Cook, In re. . ..59,421,408,770 
 
 1- V. Ontario Loan & Debenture Co. OO Mcffrey v. Scott 7'.t8, 814 
 
 Hooligan V. I hiscoU 70(i j .lelletc v. Anderson .. . . 109, 279, 280, ()40 
 
 Hohlun V. Itobertson— West Hastings I'Uec- .Jenkins v. lirccken -Queen's ( 'niinty lOlcc- 
 
 tion (Out. ) (2) . . 5il, 55.'), 5(i0 
 
 Holland v. Wallace, In re 217 
 
 Holnian V. (ireun 124,315 
 
 Holtl)y V. Wilkinson . . 
 
 Holw ly V. Holway 
 
 Hood V. Martin 
 
 Hooker V. .Morrison . . 
 
 Hojikins, Ke — Barnes v 
 
 V. Hopkins, 292, 431, 579, 703, 704, 810 
 
 tion (l)oni.) 520, o21 
 Central Ontario R. W 
 
 453, 797, 799, 803, 805 .luiiks v. Doran 
 
 3;{0 ; Jessnp v. « iraiid Trunk R. W. Co 
 
 . . 392. 029 I 
 
 427, 433 .rohn-;on. In re . . 
 Hopkins .. 222, —v. liennett .. 
 
 52", .528, 509 
 Co. 170, 3U, 
 345, 452. 073, ()75 
 . . 58. 78, 284 
 181, 43.5, 
 508, 019, 074 
 .. 5i9 
 2C)(), .394 
 
 V. Oliver -South O-xford Election | 
 
 (Ont ) 38, 2i4, 253, 505, 570, 575, 755 \ .Johnston 
 
 V. .Smith 
 
 Hoiiper V. Harrison 
 
 V. Oliver 
 
 V. Reid 
 
 .lonas V. (;ill)ert 
 
 Jones V. (!'anada Central R. W, 
 
 Hu 'lii;s V 
 
 Hunter 
 
 V. 
 V. 
 V. 
 V. 
 V. 
 V. 
 
 V, 
 V. 
 
 V. Dawson 
 
 V. Dunliar 
 
 V. Uallon 
 
 V. (jiand Trunk R. 
 
 V. Jones . . 
 
 V. The Queen . . 
 
 Joseph V. Hatl'uer 
 
 15(i, 031, 709 
 
 209, 273, 025, 040, 707 
 
 Horner v. Kerr . . . . 77, 320, 323 
 
 Horton, In re . . . 070 
 
 Houston, Ue — Houston v. Houston . . 402, 474 
 How.utli V. Singer Manufacturing Co. . . 142 
 Howes V. Dominion Fire & Marine Ins. Co. 
 
 254, 301, .372 
 Howey V. Howey . . . . . . . . 329 
 
 Hiiu;;ins V. (iuelph Barrel Co. .. 577, 034 
 
 Field 3 
 
 Hughes 273, 275, 429, 430, G21, 819 
 London Ass. Co. . . . . . 309 
 
 Rees 244, 032 
 
 I'.irney 390, 703 
 
 Carrick .. .. .. L57, 580 
 
 Lauder — South Grey Election 
 
 (Out.) 529, 5.35, 537, 542, 540, 555, 
 
 55(i, 5(il, 571, 570 
 
 Vanstoue .. 171, 217, .390, ."iOii 
 
 Wilcockson . . . . . . 394 
 
 Hurst V. Chishohn— Peel Election ((^nt. ) 4'.l'.>, 
 
 505, .571, 575, 7<J7 
 Huttim V. Federal Bank 09, 111, 38ii, 057, 744 
 Hyde V. Barton . . . . 103, 222, 725, 720 I Kelscy v. Rogers 
 
 V. Casniea .. .. .. 308, 015! Kiiniit v. Macaulcy 
 
 Hynesv. Fisher .. .. 348,300,451 
 
 McCord and Jenkins Case 37, 
 
 350 
 418, 419 
 
 .-. The Toronto,(Trey, and Brucc.R. 
 
 W. C!o., In re 087 
 
 v. Christie . . . . 259, 394, 7()2 
 
 V. Jolniston 41, 239, 45.3, 471, 472, 
 
 590 
 
 2.30,231,4.30 
 
 40(» 
 
 . . 417, 491 
 Co. 110, 221, 
 092 
 
 235 
 
 470, 057 
 .. 248,318 
 
 W. Co 082 
 
 808 
 
 . . 129, 594, 59!t, 823 
 ..55, 71, 000 
 
 K. 
 
 Kastnor v. Beadle 
 Kearney v. Kean 
 Koulo v. Ward. . 
 Reeter v. Merrill 
 v. McKay 
 
 V. Smith 
 
 Idington v. Mickle, Re 
 Imperial Bank v. Britton 
 v. Dickey 
 
 39, 43, 40 
 302, 029 
 34, .35, 101, 105 
 
 • Loan and Investment Co. v. O'Sul- 
 livan 
 
 405 
 
 IngeraoU Town of, and Carroll, In re 495, 790 
 Inglehart and Oagnier, Re . . . . 9.5, 770 
 
 Ingram v. Taylor 192, 320 
 
 International Bridge Co. v. Canada Southern 
 
 R. W. Co . .71, 114, 639, 058, 708. 705, 818 
 Ironside v. Orton — Centre Wellington Elec 
 
 791 
 
 11,3, 2(i0, .3.30 
 38, 031, 710 
 
 283 
 
 ..579,801,802,803 
 Keith v. Fenelon Falls Union School Section 052, 
 
 0(;2 
 
 80,714 
 
 105, 470, 722 
 
 Kennedy v. Batcnian . . . . . 230, 423 
 
 ^ V. Tingle .. .. 273,274,817 
 
 Kerr, Akurs & Bull, He . . . . 40, 42, 257 
 
 Kerr V. Ca'.iadian Bank of Commerce 00, 208 
 
 Kiely V. Smyth 
 Kilbourn v. Arnold 
 Killins v. Killins 
 King V. Duncan 
 
 V. Farrell 
 
 V. Hilton. . 
 
 V. Mover 
 
 Kingsl.md, Ue . . 
 
 1:9, 238, 820 
 
 . . 43, 287, 470, 772 
 
 . . 274, 391 
 
 93, 300, 301, 307, 500 
 
 214 
 
 270 
 
 39, 46 
 473 
 
 tion (Doni.) 
 Irwin V. Young 
 Isbester v. The Queen 
 
 J. 
 
 Jack V. Greig . . 
 Jackson v. ( 'assidy 
 
 V. Haunnond. 
 
 James, Re 
 V. Balfour 
 
 545, 500, 502 
 . . 150, 2,S7 
 129, 595, 823 
 
 292, 511 
 .14, 710 
 
 418, 473 
 
 81,441 
 
 .. 312 
 
 Kingston Election (Dora.) — Stewart v. Mac- 
 
 donald . . 530, 543, 546, 556, 501, 571 
 Kinloeh V. Morton .. .. 203,394,710 
 
 Kinsey V. Roche .. .. .. 158,215 
 
 Kirkpatvick, Re — Kirkpatrick v. Stevenson 438, 
 
 772 
 
 Kitching V. Jlicks 604,709 
 
 Klein V. Union Fire Ins. Co. 351, 355, 3,58, 300, 
 
 371, 497, 008, 708 
 Knott V. Hamilton and Flamborough Road 
 
 Co. 789 
 
 Knowlton V. Kuowlton ., .. 150,329 
 
 Labatt V. Bixel 
 Laidlaw v. Ashbaugh. 
 
 297, ,307 
 230, 764 
 
XIV. 
 
 TABLE OF CASES. 
 
 (dl.lMN. ' COLUMN 
 
 liaidl.iw V. Jackes . . 11'4, 4'M L'Origiial, In re Voter's List of the Village 
 
 Laiiin V. Oiitiiiid Loan and Savings Co. J'J2, '2\'2 of, for the year 1882 . . . • . 519 
 
 Lakiii V. Nuttiill 8-J'2 Lott v. Drury 200,499 
 
 Lahir v. Lalor 2U, 570 Longhead v. Stubhs . . . . 227, ()24. 740 
 
 Landiier v. 1 amliier . . 273, 579, (i^O : Lovelace v. Harrington . . 287, 340, 720 
 
 Liiniliii'ie v. .School Trustees of Section No. | Lowson v. Canada Farmers Ins. Co. 158, 175, 
 
 .SS.mth Cayuga fiG2 ! 221, 2G3, 2()G, 3(;0, 374, ()31, 710 
 
 Lanccy v. Jolinstcjn . . . . 34G, 412, 510 I Lucas v. Eraser . . . .1G4, 394, G32, 710 
 
 Lane, Kc . 578 1 v. Knox.. .. .. .. .. 328 
 
 Langdon and the Arthur Junction K. AV. j v. Koss 392, 629 
 
 <'o., In re . . . . . 94, 088 1 Lunisden v. Davis . . . . . . C17, 711 
 
 Langiiiaii and Martin, In re . . . . 14 1 v. Scott . . . .'. G, 306 
 
 1 aiilaiite V. Scanii n . . . .4G0, 579, 724, 725 I L'Union St. .Joseph de Montreal v. Laj^erre 147, 
 
 LaiK.iiitc V. Lallcur 202,230 
 
 Larii. v. Walker 20.3, GI8 
 
 l.aliociie V. O'Hagan . . . . 2.').3, 737, 7hO 
 
 Lanic v. l)cslaiiriers — Bellecliassc KKction 
 
 (l)oni. ) 539, 55G, 57G, 748 
 
 Lash v. Mcriden Britannia Co. . . 17G, 450 
 La \ assaire v. Henm.. .. ..211 
 
 Lavin v. Lavin. . . . 128, 159, 228, 287, 32G 
 
 Lawless v. Hadford . . . . . . . . 70G 
 
 v. Sullivan 
 
 Lawlor V. Laulor 
 
 177, 509 
 
 Lyon V. Monk — Carleton Election (Ont. ) . . 540, 
 
 569 
 
 M. 
 
 Madden v. Cox 
 Maguru v. Magnrn 
 Malion V. Nicholls 
 24, 8191 Mailland v. (ilohe Printing Co 
 235, 459 ! In re Gunther v. Cooke 
 
 77, 143, 220, G8fi 
 
 221, 2S5, 328 
 
 170, 172, (iU, 635 
 
 248, 709 
 
 .. 36 
 
 43, 44 
 
 291, 584 
 
 Laws, Kf- La«s v. Laws . .173, 2G1, 325, 4.39 I Makolnisou and W ade. He . . 
 
 Laycdck, He— Mc(Jillivray V. Johnson .. 724 Malion v. Craig 
 
 Lcadir v. Nnrtiicrn U. \V. Co. .. 198, ()84 i Marsh v. Huron College 111, 146, 147, 164, 180, 
 
 Learning v. Woon 32, .34, (i95 | 238, 317, 509, 820 
 
 Lee V. Cre.lit Valley R.AV. Co. 183, 23S, 341, G91 Martin v. Bearman 91, 107 
 
 — v. McMalion .. .. 288, 2!ll, 405 ' q. t. v. Consolidated Bank 150, 155, 590 
 
 -- V. I'uhlic School Board of the City of j and English, Re . . . . 64, 239 
 
 Toronto 
 — V. Victoria 1!. W. Co. 
 l.cCKon V. lemon 
 Ltilics V. Ward. In re. . 
 Leiglitou V. Medley . . 
 Leith V. .Mcl.cllan 
 Lenoir v. Ritciiie 
 Leon.ird v. Leonard . . 
 
 (iGO 
 
 ()91 
 
 399, (134 
 
 . . 220, 819 
 
 4US, 778 
 
 ..22.3, 226, 2.'{4, 235 
 
 71, 115, 117, G4.3, 747 
 
 4(i, 329 
 
 V. Latlerty G30, 70S 
 
 V. McAlpine 110. .307 
 
 Martindale v. Clarkson . . 228, 476, 746 
 
 Mason V. Macdonald . . . . 60, 284, 411 
 
 Masuret V. Lansdell .. .. .. 157, 389 
 
 Lett V. St. Lawrence & Ottawa R. W. Co. 327, 
 399. 498, 677, G79, (ISO, GSI 
 
 Levi V. Reed 11, 198, 749 
 
 Levine v. ( latlin 2S4. 324 
 
 Levoy V. Mi.Uand R. W. Co 680 
 
 Lightbound v. Hill . .57, 63, 64, 308, 312, .S95 
 
 Lincoln Election 
 
 Little V. Billings 
 V. Brunker 
 
 Maw V. Townships of King and Albion 49(i. 790 
 May V. Security Loan and Savings Co. 86, 88, 
 
 89, 819 
 
 V. Standard Fire Ins. Co. 264, 354, 359, 366 
 
 Mayer v. (Jrand Trunk R. W. Co. . . . 684 
 
 Mayor, &c., of Frcdericton v. The Queen 100, 
 
 119 
 Mead V. Crcary, Ee . . . . 210, 217, 219 
 
 ., _-, Mealy V. Aikins 809 
 
 405, 652 ' Mearns v. Corporation of the Town of Petro- 
 
 (Ont.) (2) Pawling v. | lia 350,483,759 
 
 liykcrt 8. 244, 517. 519, 521, ileek v. Scoble 21() 
 
 522, 525, 5.36, 554, 560, 5(i7, [ Menzies v. Ogilvie . . . . 33, 159, 18.3, 476 
 
 572, 577 I Metropolitan Loan and Savings Co. v. Mara 2 1 , 
 
 (Ont.) (1) — Rykcrt v. 36, 326 
 
 Neelon . .529, 538, 5.")9, 562 ' Merchants Bank v. Bell .. .. 77,323 
 
 797, 804 I 
 
 11,470, ()41 
 
 Livingston v. Wood .32, 107, 159, 256. 470, 5h9. ' 
 
 63S, 695 i 
 
 Lloyd V. Wallace 34, 773 i 
 
 Lock V. Todd . . . . . . . . 617, 778 i — 
 
 London and Canadian Loan and Agency Co. 
 
 v. Everitt . . 336, 471 
 Loan and Agency Co. 
 
 V. Merritt 
 
 710, 
 
 Loan and Agency Co. 
 
 V. Pulford . . 282, 625 I 
 London Election (Ont.) — Jarniin v. Meredith 
 
 V. Brooker.. 169, 171, 766 
 
 V. Campbell . . . . 7'Xi 
 
 V. Graham. .260, 644, 735, 736 
 V. Pierson . . 37, 244, 250, 63(i, 
 
 764 
 
 V. Kobinson ..79, 80, 616 
 
 V. Sparkes.. 5, 111, 159, 475, 
 
 476, 656 
 
 V. Thompson — Malion v. 
 
 . . 291, 584 
 
 . . 128, .327 
 
 .. 110,308 
 
 .. 293 
 
 Craig 
 Meredith v. Williams. . 
 Meriden Silver Co, v. Lee 
 .Merritt v. Is'iles 
 
 533, .537, 54(;, 547, 558 ] Meyers v. Kendrick .35, 710 
 
 (Doni.) Pritchard v. Walker 562 | Midland R. W. Co. v. Ontario Rolling Mills 
 
 Co. 713 
 
 Miles v. Cameron .. .. .. 40.5,471 
 
 Miller v. drown 174, 427, 434, 466, 697, 700 
 
 V. Hamlin 239, 427 
 
 V. Harvey 01, 82 
 
 V. Grand Trunk R. W. Co. 488, 691, 785 
 
 Life Assurance (,'o. v. Wright 149, 3.")4, 
 
 380 
 
 Loan & Agency Co. v. Thompson . . (i42 
 
 — Co. V. .Smyth . . 4(il, (i9."), 776 
 
 Long V. (iuelph Lumber Co. .. 135, 144, 150 
 
 Longhi V. Sauson . . . . 285, 410, 412 
 
 Mos 
 Mov 
 Mul 
 Muii 
 Mur 
 
 .Mun 
 
 Murl 
 
 Myk( 
 
TABLE OF CAPES. 
 
 XV. 
 
 220, C8() 
 2S5, 328 
 (iU, 035 
 248, 70S) 
 .. 3t) 
 43, 44 
 291, 584 
 104, 180, 
 , 501), 820 
 yi, 107 
 , 155, 590 
 04, 239 
 630, 708 
 110, 307 
 , 470, 740 
 1,284,411 
 157, 389 
 n 49(). 790 
 L 8ti, 88, 
 [ 89, 819 
 , 359, 3150 
 . 084 
 leen 100, 
 119 
 i, 217, 219 
 .. 809 
 'etro- 
 i, 483, 759 
 .. 210 
 I, 183, 470 
 Mara 21, 
 30, 320 
 77, 323 
 ), 171, 700 
 .. 733 
 [, 735, 730 
 250, 030, 
 704 
 9, 80,010 
 159, 475, 
 470, 050 
 Ion V. 
 291, 584 
 128, 327 
 110, 308 
 .. 293 
 35, 710 
 MilU 
 .. 713 
 405, 471 
 1, 097, 700 
 239, 427 
 01, 82 
 ;, 691, 785 
 
 coi.rMN. i 
 
 Mills V. Kerr 00, 254, 29S ' 
 
 MisoiKT V. Township of WaiiiHeot, Ke . . 487 
 Mitchell V. Caiiieron— West Huron Elou- 
 
 tion (Dom.) 315, 529, 503, 508, 570 
 
 V. I'off'eo 
 
 V. Goodall . . 
 
 V. McDiiffy 
 
 V. Strathy . . 
 
 V. Sykea 
 
 Brooks 
 
 COLUMN. 
 
 210 
 
 lOS 
 
 211,410,702 
 
 260, 390, 477, 038 
 
 50, 279 
 
 250, 289, 775 
 
 Mc. 
 
 Maeaulay v. Kemp 
 Maudonahl v. Abbott, 
 
 V. ('ronibie 
 
 V. TIcnwooil 
 
 817 
 
 711, 747. 749 
 203, 295, 709 
 
 .443, 501, 007, 703 
 
 Mobcrly V 
 
 Moflatt V. Hoard of Education of Carlton 
 
 I'hice G63 
 
 V, Kelianee Mutual Life Assurance 
 
 Socii'ty 354, 378 
 
 Molson's liank v. Town of Brockville 09, 484, 
 
 493, ()50 
 Monajrhaii V. Horn— The Garland .. .. 447 
 
 Monck Kleotion(Ont.) — Colliarv. Meralluni 51(i, 
 
 540, 5(i5, 572 
 
 (Dom.)— Grantv.McCalhiin 520, 
 
 521, 520 
 Moiikhousc V. Grand Trunk 11. W. Co. 124, 
 
 078, 082 
 Montcith v. Merchants Despatch and Trans- 
 portation Co. . , _ . 102, 454 
 Montiiiorincy Election (Dom.) — Valin v. 
 
 E.niglois 503, 5G8 
 
 MontrcaU'itv and District Savings Rank v. 
 
 County ot IVrth . . 128, 199, 01.3, 015 
 
 Loan and Mortgage Co. v. Fauteux 265 
 
 Moore v. Boyd 247, 707, 819 
 
 V. Buckner .. 18, 19, 20, 158, 240 
 
 V. (Vntral Ontario P>. W. Co. 075, 070 
 
 V. Cnnneciicut Mutual Life Tns. Co. 
 
 of Hartford .. 11,505,017,749,751 
 
 V. Kay 406 
 
 V. McGowan— WestWellingtonElec- 
 tion (Ont.) 549, 572 
 
 V. .Millisli 807,810 
 
 Morgan v. Ault . . . . . . . 014 
 
 Morphy V. Wilson .30,'), 019 
 
 Morton and The City of St. Thomas, In re 98, 
 200, 484, (iOO, 090, 780 
 
 V. Nihan . . . . 03, 259, 262 
 
 Monisbuigli, B.>ard of Education of, and 
 
 tlie Township of \Vinchester, Re 004, 605 
 Morrison v. Taylor . . 393, 631, 710, 733, 734 
 Mor.^e, lie 9, 228, 235, 252, 321, 458, 000, 007 
 
 V. Worthington 204, 232, 251, 582, 
 
 006, 705 
 Macdonell v. McGillis . . . . 578, 708 
 
 M icfie V. Hunter . . 90, 92, 217, 818, 820 
 MMcKelcan V. Becket.. .. 029,703,711 
 
 MacKenzie and the City of Brantford, In re 492 
 .Maclonnan v. Bcrgin — Cornw.ill I'^lection 
 
 (Dom.) (3) 244, ."JSl, 541, 504, 5()5, 570, 574 
 
 MacNabb, Ke 209, 776, 806 
 
 Macnaniara, a Solicitor, Re . . . . . . 41 
 
 V. McUy . . . . 698, 699 
 
 McAlpine v. Carling . . . . 617, 036, 702 
 
 V. Township of Euphemia, In re. 405, 
 
 435, 602, 818 
 
 Mc.Vrtliurv. Gillies 781,782 
 
 V. I'rittie 641 
 
 V. Township of Southwold .. 174 
 
 McCall V. Theal 
 McCallum v. O.lette . , 
 .McCann v. Chisiiolm . , 
 Mi'(,'ardle v. Moore 
 Mc(Airthy v. Arbuckle 
 
 34,5, 818 
 11,497,737 
 
 415 
 
 . . 159, 270, 274, 275 
 1.3, 18, 
 
 198. 231). 231. 
 333. 017, 635 
 McCaskell v. Paxton — North Ontario Elec- 
 tion (Ont.) 11, .5.3.3, 541, 544, 550, .554, 575, 
 
 591, 745 
 McCaughcy and W.alsh, Re . . . . 40, 581 
 
 McCausland V. McCallum 283 
 
 McClcary V. Morrow 630 
 
 McClenal'han v. Grey . .109, 110, 709, 810 
 
 McClive utal., Solicitors, In re . . 40, 380 
 Mc(.V)l], He— McColl V. McCoU .. 27.3,708 
 McConaghy v. Denmark . . . . 422, 702 
 
 McCorkill v. Knight 321 
 
 McCormack and the Township of Colchester, 
 
 Re, IL 
 
 Moscr V. Snarr 
 Mowat V. McFee 
 Mullin V. I'.isco 
 Munsic V. Linds.ay 
 Murphy v. Climie 
 
 V. Cornish, In re 
 
 V. (irand Trunk R 
 
 667 
 
 . . 202, 504 
 
 ..114, 124, 281, 819 
 
 ^ 330, 388 
 
 .. 81.3,810 
 
 20,5, 754 
 162, 059, 7.30 
 
 678, 681 
 Co. 11, 150, 
 404, 503, (!45 
 . . 250, 050 
 .. 202,311 
 
 321, 325 
 
 South, In re 
 McClung V. McCracken 
 McCracken v. Creswick 
 McCrao v. Wliite 
 
 V. Whyte 
 
 McCre.a<ly V. Heuncssy 
 McCuaig'v. Keith— The Picton 
 McMermidv. McDermid 
 
 McDonald, McDon.ald and Marsh, Re 
 
 , Co. 
 
 W. 
 
 251, 
 
 Murray v. Canada Central R 
 178, 
 
 V. Gibson 
 
 , Re- Purdom v. Murray 
 
 V. !Mc(\dlum . . 
 
 Murton v. Kingston & Montreal Forwarding 
 
 t;o 83, 104, 190 
 
 Murchison v. Canada Farmer Ins. Co. . . ()14 
 Murdoch, In re. . .. .. .. ..337 
 
 Muskoka Mill Co. v. The Queen 193, 451, 59(i, 
 
 600, 782 
 
 Election (Ont,)— Starratt v. Miller 545, 
 
 .5.54 
 
 Mutton V. Dey 759 | McG.arry v 
 
 Mutual Fne Ins. Co. of the County of Wel- 
 lington V. Frey . , . . a04, .308, .374 
 Mykel V.Doyle 430, 790 I 
 
 663 
 
 260, 717, 739 
 
 ..215 
 
 . . 749, 759 
 
 .. fil 
 
 ..153 
 
 11, 446, 748 
 
 724, 725 
 
 44, 468, 
 
 476 
 
 . . 173, 770 
 
 6,41 
 
 714 
 
 .. 114,705 
 12, 174, 507, 718, 723 
 
 76 
 
 615 
 
 . . 128, 823 
 
 . . 5<)0 
 
 .814 
 
 632, 635, 704 
 
 60, 387 
 
 ..477 
 
 . . 192, 402 
 
 18, 102, 736 
 
 243, .305, 003 
 
 162, 163, 202, 440, 707, 
 
 752 
 
 Thompson ..225,799,800,812 
 
 McGee v. Campl)ell . . . . 58, 05, 00. 623 
 
 — V. Wigle — South Essex Election 
 
 (Out.) 558,572 
 
 Davidson 
 Field . . 
 Forrestal 
 Lane 
 Murray . 
 McArthur 
 McKinnon 
 Oliver . . 
 Worthington . , 
 
 McDonald's Will, Ho Trusts of 
 
 McDonough v. Alison 
 
 McDougall, In re 
 
 V. Campbell 
 
 McDowall V. Pliippen 
 McEwan v. McLi'od . . 
 McFarlaud v. AicFarland 
 MoGaunou v. Clarke 
 
XVI. 
 
 TADLK OF CASES. 
 
 (lOl.r.MN. I COLUMN. 
 
 Mc(Jrigcii- V. McClii'gnr ,, '2'M>, ',V,i-\, •i'.ii't ■, Nellis v. Second Mutual Building Society of 
 
 . V. MiN.il.. .. 704, 7(l."i, 7."S Ottawa 140 
 
 Mcill.iu{;( y V. ^lt(.inllis .. .. 47i), (07 Nels-on v. 1 lafoe .. .. 742,824 
 
 M(;lnt>ri v. 'i li. Nalicmal Ins. Co. . . 'M'S. :W.) M;,gurii Kk'Ltion (Ddni.) — Black v. I'liunl) M!"-), 
 M> Kay V. ( lysler 2h, 2!J I MH, 573 
 
 V. (ikii — Soutli Ontario J'lcction ' (l)om.)— I'lnuili v. Iln;.lius ."ifJ.S 
 
 (1 oni.l . . 538, 5;^!>, 544, r)-4ti, 503 , >Kli(.bon v. TLu-'nix Ins. Co. . . .'J.")5, 818 
 
 V. .Ml 1 iiiuall- ScjiUliKenfiewKkc- v. Sljannoh — .Mcl'liiison v. Slian 
 
 tion (1 oni.) (2) .. .. 515,574! non :«, 293 
 
 V. McKay 47, 182, 183, li03, '2(M, 'i(i2, Ni.von v. Malti)y 410,411 
 
 2hG, 57y, 7(8, ;(i2 ^olllc■ V. Oity ot Toronto .. .. 501,784 
 
 .'V1.K<llai V. ll.nilirsc.n .. .. 732. :33 .Ncl.ui v. Di.iiiiclly .. .. 5;i, ,VJ, 584 
 
 McKi n/ie v. 1 w ijjlit 
 
 V. Ilaiiiiltou — J'rescott Elcctidn 
 
 (Oht.) .. 251, 5(i2, 504 
 
 V, Kitliidgo .. . .. 144 
 
 iMiKilri.k V. Haley .. .. 57, OO, -!'8 
 
 MtKiiij-lit V. City of Toronto . . 4l»2 
 
 MtLaitn V. (all, veil 174, 177, 349, .VO. 5!.0, 
 
 782, (.h;; 
 
 V. C'Miada Central K.W. Co. ;,!»!i, (SI. 
 
 Of 2, th3 
 
 — V. i'ii-ken .. . . 141, 509, CHi, 8KS 
 
 V. McC naig . . .. . 39t, ()I5 
 
 MeLean v. Kiiice . . . .305, 023, (.24, 773 
 
 V. Oailaiid '2l'.t 
 
 V. Haniiun .. .. 504, 7()7 
 
 V. 1 mkeiton .. 80, 710, 7-10, 75!) 
 
 V. 'i he Tuwnthip of Ops, Ite 25, 48S, 
 
 718, 720 Adrtli of Scotland Canadian Mort}.'at;e C 
 
 V. TlunipKcin . 
 
 489, 7S5 : 
 719, 7(i5 ' 
 
 . 224 
 
 iiMe -^4. 115, 151 
 
 . MoitL;.;ue Co. 
 
 V. lie id .. 472 
 
 Miilt.Laj^i' Co. 
 
 V. (ieinian . . 458 
 
 Morlj;aye Co. 
 
 V. Udell 257, 457 
 
 Oiev Election (Ont.)- 15iiardnia\i v. 
 
 .^eott . . . . 531, 5;i4, .■,•>(), 5.n, 501 
 Middlesex Election (Oi.t. )- ( '.inii- i 
 
 V. McDongall 542, 543. "40. 5 ./, 550 
 Ontario Election (iJoin.)- -\\ licU r v. 
 
 Oiblis . . 711, 750 
 
 Election (Doni.)— (iililis v. 
 
 Whcler 528, 533, 539, 544, 
 548, 552 55,3, 5."4, 500, 57t> 
 
 Election (Ont.) McCa^Uill 
 
 V. l'a.xtoii 11. 5.3.3. 511, 544, 
 550, 551. 575, 591, 744 
 ■)07, 508 
 
 McLellan v. Aicl.illan 
 
 V. McKiiinon 9, 105, 131,'310, 331, ' Oxford Election (iJoin), J! 
 
 :)32, 4('3, 404, 493, 729, 730, 701, 703 lienfrew Election (Loni)- Wliit<> v. 
 
 McLennan v. Ciaig — Glengarry 1- lection j Murray .. .. 540,574 
 
 ((nt ) 537, 540, 547, 548, 549, 571 
 
 V. Ilannuni . . . . 414, 450, 477 | 
 
 V. McLean .. .. .. .. 458 
 
 McLct d V. !Ntv 1 innswick E. W. Co. 11, 757 
 
 McMaster v. Carland 32, 52, h7 
 
 McMillan, Ke-laiterson V. MeMillar .^ 578 
 McMnllcn v. A\ illiams . .254, :02, 047, 7tO 
 
 MeNal) V. Peer 3(», 2!)ft 
 
 Md liern.n V. (Jedgc . . . . 419, 420, 819 , 
 
 V. sliM.non .. .. 33, 2'.i3' 
 
 McQueen V. 1 Lccnix Mutual Fire In.s. Co. . 354, I 
 
 359 \ 
 McHae v. Smith — XortL Victoria Election | 
 
 (Ont.) 540, 541, .')42, 549, 551, 559, 5(i(), 5()7, ' 
 
 5()9, 577 ' 
 MeSherry v. Ciiiiniissiouers of the Cohonrg 
 
 'J'own Trust .. .110, 133, 150, 017 
 
 McSorley v. ilayor&c, of the City of St. 
 
 John . . 22, 20, 451, 493, 057, 703 
 
 McTiernan v. Eraznr . . . . . . . . 220 
 
 - Sinicoe Election (Out. )- Si.ssims v. 
 Ardagh . . . . . . 5.50, 509 
 
 -Sinieoe Election (Dom. )--E(l\vards v. 
 
 Cook 100, 517, 5()2, .504, 509, 570, 574 
 -Victoria Election ( lit. in. )— Cameron 
 
 V. Maclennan. 181, 220, 514, 
 
 517, 528, .529, .^^O, 5.37, .'■)41, 
 
 551, 504, 5ti5, 574, 575 
 
 Election (lioiii.) (2) — C. ni- 
 
 eion V. Macleniian. 518, ■^" 
 521, .532, 'i^^- f 
 
 Election (Ont.l — iMeKac v. 
 
 Smith. 540, 541. 542, ;ji9, ■-■): 
 559, 50(i, 507. 50'J, 5" 
 -York Election (Ont.l — (.orhani v. 
 
 Bunlthce. 529, 535, 549, 550, 574 
 
 Election (Dom.) — Oliver v. 
 
 Strange . . 569 
 I'alcrson 
 
 V. Mulock . .103, 315, ,5(i3, 568 
 
 j AVentworth Election (Ont.)— Christie 
 
 N. I V. Stock . . . . 533, 5.')9, 500, 561, 562 
 
 i Korthwdod V. Township of Raleigh . . 785 
 
 443, 444, 613i Aorrib V Meadows 722 
 
 •150, 179, 819 Korvall v. Canada Southern \i. W. Co. 18, 19 
 20, 118, 175, 177, 291, 675, 076, 743, 751, 
 
 Nagle V. Timmins 
 Napier v. Hughes 
 Masniith v. Manning . . 134, 130, 648, (i80 
 
 and the City of Toronto, In re . . 491 
 
 National Ins. Co. v. Egltson 133, 130, 150, 239, 0. 
 
 Neald V. Coikindale 108,059 
 
 Needham v. Necdham . . 52, 328, 589, 824 Oakes v. The City of Halifax . . . . 18 
 
 Weill, lie- iJickey v. Neill (.95 Oakland, Township of v. I'ropcr 110, 484, 665 
 
 V.Carroll .. ,. .. .. 419 1 (Jatis v. Sujireme Court of the lndc)( ncUnt 
 
 V. Travellers' Ine. Co. 177,381,490,749,1 Order of Foresters .. ;;0!i, 3.'-0, 61 1 
 
 818, 820 O'Brien, Re . . 244, 267, 284, 445, 659, 751 
 
 V. Union Mutual Life Ins. Co. 3.54,-378, v. Bull 390 
 
 5&9 I v. CUarkson 54, 820 
 
 Nelles v. The Bank of Montreal . . 61, 02, 08 , v. O'Biien 311 
 
 reck, 
 
 V. White . . 25, 28, 29, 202, 229, 818 
 
 V. The Queen 128, 193, 510, 592, 046, 821 
 
T 
 
 TABLE OF CASES, 
 
 XVII. 
 
 COLUMN. 
 
 ;icty of 
 
 .. 140 
 
 14-2, 824 
 Muinl) Mf), 
 
 r>4;i, 573 
 Unfiles TffiS 
 
 3.-.r), 818 
 . Sh in 
 
 :{3, 293 
 
 410, 411 
 
 riOi, 784 
 53. ,sy, 584 
 ye Co., 
 l4. 115, 151 
 fH Co. 
 ill .. 472 
 ,y Co. 
 1 iii.in . . 458 
 >-c Co. 
 
 257, 457 
 
 llllIUI V. 
 
 ,-(), .")."•>, 5G1 
 '.Miiir 1 
 
 j(i. r. .;, 550 
 
 hclir V. 
 
 . 711, 750 
 
 ililis V. 
 
 Ci, n.SO, 544, 
 
 r.4, ."GO, 57tJ 
 
 .•( 'asUill 
 
 «. 541, 544, 
 
 i75, Sill, 744 
 
 5(J7, 5(18 
 ^'liito V. 
 
 54C, 574 
 
 ,S(P11S V. 
 
 550, 50!) 
 
 ^ards V. 
 
 r.i), 570, 574 
 
 'aiiirroii 
 
 SI, 1:20, 514, 
 
 If., .'i:!7, 541, 
 
 (15, 574, 575 
 
 I — I \ m- 
 
 1. 5)8, '7" 
 
 i32, V^- ► 
 
 cKau V. 
 2, ;;<<>, :•;: 
 
 i(i7 iJO'J, 5' 
 
 lialii V. 
 
 i4!i, 550, 574 
 
 iver V. 
 
 range. . 560 
 
 'aUrson 
 
 !15, Mi3, 568 
 
 Cliiistie 
 
 00, 501, 502 
 .. 785 
 .. 722 
 
 Co. 18, 1<» 
 
 76, 743, T51, 
 
 .. 18 
 10, 484, 665 
 (•( mUnt 
 .OluSi-O, 611 
 \a5, 659, 751 
 .. 390 
 54, 820 
 .. 311 
 592, 646, 821 
 
 C'OI.I'MN. ! fOI.UMN. 
 
 O'Callnglinii v. Flcsher— Canlwell Election '. Pliilip.s v. Fox 727 
 
 (Out.) S-SO riiilliisv. (Jniudl^ivei' Mutual Firu Ins. Co. 
 
 Ockley V. Masson 126, 243, 256, 644, 648, 711, 239, 281, 357 
 
 714 Piiii.i).s, Ho .. 186, 191, 27(i, 
 
 O'Dolii'ity V. Ontario Bank . . 304, 311, 321 v. Hoanier 
 
 O'Donohtio V. Wliitty. . .39, 173, 174, 257, 469 I'lin'iiix Ins. Co. v. Anohorlns. Co, 
 Ogilvif V. ISakfr—l'tussell Flection (Ont. ) 532, I'ictoii, 'I'lio— McCuaig v. Keith 
 
 5,")8, 569 i Smith v. Kcitli 
 
 O'Grady v. McCaffray . . 28, 195, 334, 818 : I'iorco v. Canavan 
 
 Old V. Old 329 ! I'ih.n v. Hiuiiet 
 
 Oliver v. (jitat Western li.W. Co. .. 050 I I'iiier v. .Siniiiaon 
 V. ^e\\ house 52, 114, 264, -109, 410, 416 1 I'latt v. Blizzard 
 
 McCoU 
 
 V. .Strange— Nortli York Flection 
 
 (Doni.) .. .. 509 
 
 Oluistead V. Carjpenter — South Wentworth 
 
 Flection (Out.) . . 517, 519, 520, 56() 
 
 Omnium Securities Co. v. Canada Fire and 
 
 Mutual Ins. Co 239, 370 ' 
 
 Ontario ISank V. Mitchell .. .. ..34, 
 
 V. Ilarston, lure .. .. 215; 
 
 Ontario Co-n]icrative Stone Cutters' Asso- : • (Doni.), lure 
 
 ciation v. Clarke . . 127, 131, 148 
 
 Glass Co. V. Swartz . . . . . . 216 : — 
 
 Industrial I^oan and Investment | 
 
 Co. V. Lindsey 5,6, 48, 200, 004, 051, , I'rince v. (la 
 
 098, 099, 723, 700 I'rincu Fdwanl ];iection (Ont.) 
 
 L'lund) V. Hughes 
 
 V. .Stcinhotl' 
 
 I'lirte V. Irwin . . 
 I'orritt V. Fraser 
 I'ostniaatcr-Oeneral v 
 I'owell V. Peck 
 Power V. Ellis 
 Pruscott Election 
 
 277, 278, 285 
 157, 389 
 
 382, ;j8;i, ;}S4 
 
 11,446 
 .. 117 
 
 ..237. 390, 4(;0, 475 
 .. 112, 196, 453, 750, 751 
 
 412 
 
 . . 160, 741 
 Niagara Election (lioni.) 56,3 
 332, -r." 
 
 .. 726 
 
 .. 21, .52, 1,J8 
 
 . . 626, 652 
 
 174, 175, 587 
 
 191,250 
 
 .. f)74 
 
 565, 567 
 
 Ottawa Agricultural Ins. Co. v. Sheridan 355, 
 
 358 
 Osier V. Toronto, Grey and Bruce K. W.Co., 
 
 In re . . . . . . . . . . 680 
 
 Owens V. Taylor . . . . . . 586, 587 
 
 Owstou V. (Jrand Trunk U. W. Co. 431, 454, 
 618, 621, 670, 071, 675, 818 
 
 Iljigar V. Routhier 518, 520 
 — (Ont.) — McKenzie v. Ham- 
 ilton .. 251, 562, 564 
 non . . . . . . . . 658 
 
 Anderson 
 V. Striker 550, r)04, 5(;9 
 (Ont.) (2) ■-- Dor- 
 land V. McCuaig 516 
 London J'^lection 
 
 5(;2 
 
 129, 1.3.3, 1.3(;, 
 
 Walker 
 
 P. 
 
 Page V. Austin 
 Palmer v. Solmes 
 Pardee v. Floyd 
 Parker, In re . . 
 V. Parker 
 
 135, 14,-), 176, 177 
 
 Pritchard v. 
 
 (Honi.) 
 
 Provincial Ins. Co. v. Cameron 
 
 137, 138, 139, 140, 150, 255, 
 .387 
 
 of Canada v. Connolly 19t>, 
 
 382, 820 
 
 159, 475, 708 
 
 223, 414 
 
 278 
 200, 201, 399 
 
 Parkes v. St. George 90, 93 
 
 Parkhurst V. Koy 284, 8 If) 
 
 Parr v. Montgomery . . 205, 300, 460, 402, 473 
 Parsons qui tani. v. Crabbe , . . . 276, 404 
 
 V. The Queen Ins. Co. 115, 3()3, 307 
 
 V. .Standard Fire Ins. Co. . . . . 300 
 
 Paterson v. Mulock — North York Election 
 
 iDom.) 103,315,503,508 
 
 Patterson v. Murphy 394, (i33 
 
 ' 204, 20() 
 
 .. 210 
 .. 44 
 
 Purdy V. Parks 
 200, 207, 326 ' Pyatt v. Mclvee 
 19, 405 ' 
 
 Q. 
 
 Queen Ins. Co. v, Parsoua . 1 15, 354, 303 
 
 (Queens County Election (Dom.) — .lenkins 
 
 V. Brecken .. 520, .521, 527, 528, 569 
 
 Quinlan v. Union Fire lus. Co. 179, 239, 357, 
 
 V. McKellar 
 V. Thompson 
 
 R. 
 
 R.adford v. Merchants Bank . 
 Rae V. Trim 
 
 397, 610, 
 
 70. 396, 780 
 
 Pattullo V. Church 
 
 Pawling V. Rykert, Lincoln Election (Ont. ) 
 
 (2) 8, 244, 517, 519, 521, 522, 52.5, 536, 554, 
 
 560, 567, 572, 577 
 
 Peck and the Town of Gait, In re !)8, 1()3, 199, 
 
 238, 484, 485, 600 
 
 V. Peck .329, 708 
 
 — — V. Phwnix Mutu.al Ins. Co. . . . . 301 
 
 Peek V. Shielda 57, 6.3, 118 
 
 PeelElection(Ont.)— Hurst v.Chisholm 499,505, 
 
 571, 575. 707 
 
 Pclton, Re 001 i, 607 
 
 Pombroko (Township of) v. Can.ada Central 
 
 R. W. Co . . 239, 484, 509, 677 
 
 People's Loan and Deposit Co. v. Hiacon . . 718 
 Peterborough (Town of) v. Edwards 5, 27. 437, 
 
 497, 613 
 Peterkm v. McF.irlane . . 623, 639, 642 
 
 Petrie v. Guelph Lumber Co. 150, 238, 291, 637 
 
 V. Hunter . . . .312, 420, 818, 822 
 
 Plierrill v. Forbes . . . . 642, 707, 708 , 
 
 161, 169, 193, 200, 339, 485, 780, 
 
 788 
 Ramsay v. McDonald . . . . . . 724 
 
 H.-mdail, Ke 440 
 
 Ray V. Annu.al Conference of New Bruns- 
 wick aiul Prince Edwai-d Island 806, 816 
 Raynerd, Re . . . . . . . . . . 667 
 
 Real Estate Investment Co. v. iletropolitan 
 Building .Society 48, 150, 183, 288, 453, 464, 
 
 465, 509 
 Rces V. McKeown .. .. 93, 171, 172 
 
 Regina v. Adams . . . . 104, 387, 588 
 
 v. Alll)right . . . 9, 120, 40,3, 754 
 
 v. Harnes . . . . . . . . 746 
 
 V. Belleau 121, 793 
 
 V. Bennett 9, 99, 100, 118, 131, 190, 242, 
 
 400, 403, 510, 778 
 
 V 
 
 Bernard 
 
 403, 779 
 
 V. 
 
 Berriniau . 
 
 510, 746 
 
 V. 
 
 Berry 
 
 131,132 
 
 V. 
 
 Bissel 
 
 ..188, 190, 316, 326 
 
 V. 
 
 Boucher 
 
 . 187, 331, 402, 444, 820 
 
.will. 
 
 TAI?LK OF OASES. 
 
 l!i'L,'iii.'i V. 
 
 V. 
 
 lilliWlK' 
 
 ( 'alii)il)i'll . . 
 
 i'>|illlitll . . 
 
 illtc 
 
 Ink 
 
 li'iiiiau 
 
 lull' 
 
 Hint V <if ' 'arli-tmi 
 
 ClltlllKM't 
 
 V. I »ii\lilsi)ii 
 
 V. l»o,l,ls 
 
 V. hdiitrc 
 
 V. |llll|llcttL' 
 
 V. 
 
 V. 
 
 \'. 
 
 V. 
 V. 
 V. 
 V. 
 V. 
 V. 
 V. 
 V. 
 V. 
 V. 
 
 (•lll.lMN. ■ 
 
 ■A. '27C., -'77 
 
 .•i;{ii. 7.".;{ 
 
 :,{), itu, ■h>\, 4!i(» 
 
 ..1st 
 
 7-', i(»;f 
 
 . . 4(I'J 
 
 .. 10') 
 
 . . !(, .*.♦, I'.Mi, 
 
 7.S1. 7!l-', Sill 
 
 •IS. i(i;), 4!i(>, -nil, .SL'o 
 . . 104, 7:i(;, 74ii, .s'.'o 
 
 401 
 
 ;{(»!). .Sl!» 
 
 ]•_'(;, iC)!, ."(iiii 
 . .20S, mi, :i;u, 7r)4' 
 
 l''ci' 1(17, -'4:'.. •_'•)!» 
 
 I'liiit, 7-'. 403 
 
 Forfiii- 104. 7:<t), 744 
 
 {•'nnvUv . . . .10."). 1-_M>. :;:{•-'. I't'.i 
 
 (iocMliiiuii . . KS7, ISll, Mil, :!I0, .'il.') 
 
 (i(.ii-li .. . .iSii, IS7, 444, SIS 
 
 (liaiiiL'cr 104, 40:!, 44,"), 7.'{(), 7.")4, 777 
 
 <;ivavu.s 700 
 
 n.u't . . loii, 11!;!, I'.ii, .">oi) 
 
 Ilu.lgu 7'2. rJO. .'!;{•_', 7");i, 7."i4 
 
 IIiiiiiUuss . . . . (I!).") 
 
 Hnviiy, . . . ■ iSC, •27(!, ■27S, •J,S4 
 
 ll(.\viinl . 110, I'Sl. 4,")(>, WA. l.y.i 
 
 MmIk.Ihi 401 
 
 .M.ithi'Sdii 8!i), 4(W 
 
 ,M. A 11.111 10.") 
 
 .\lcKilit,'(itt ■Jl', 40'_' 
 
 M.Failaiic .. 104, l'_'7, lO.'i, 4.")1, 107, 
 
 .")!li), ().")l 
 
 .. 21. nil, 77!l. S18 
 
 101. -JOS 
 
 nil. isi. KS7, ;.ss, ISO, 
 
 100, 101 
 
 7r>4 
 
 . . I'JO. 402, 4S4, 40;{ 
 OS, 112 
 
 1st 
 
 2S1. 4 Hi, 417, 7S2 
 
 iss. :{i."), .•i:{|, d'.i.") 
 
 ;«1, 401, 4o:!. 401 
 
 i!);{, (;;{';, coi;. 77s 
 
 .. 4,")2. 810 
 
 100, I.".,-), 4o;}. 7.^)0 
 
 . 00, 10.'), Xi-2. 4o:i 
 . 104, 402, 7.S(I, 74.") 
 
 10."), 4o:{ 
 
 Ancler.soii KiO, 4S2 
 707 
 
 .4S0, 481, 482, 754 
 C'liincey v. Cniiway 480, 483, 7")4 
 — - — -V. Mo]iitos]i470, 481, 483 
 
 Hue 
 
 Nl'I.xnll 
 
 (rilouiko . 
 
 I'aliiif!' 
 I'ijie 
 III eves 
 IJicli.arilsdii. 
 
 linllcrtsiJll . 
 
 St. Uciiis . 
 
 Siiiitli IC 
 
 Stewart 
 
 'iV'tit 
 
 Wallaoc 
 
 WaWi 
 
 W'asliillgtnii 
 
 Wlulaii 
 
 123, 
 1S7, 
 
 1, 23S, 
 
 2, .^)1, 
 
 00. 
 
 u.\ iL'l. Mol.)()ii:ilil V. 
 IJiiiit: V. ]5()()th 
 
 V. St. Jean . . 
 
 — (iiaiit V. rokiiiau 170, 
 
 Hamilton v. Piper . 
 Kully V. Lin . . 
 Loo V. (iilmour 
 Mitcliell V. Daviilson. 
 O'Dwyor v. L'jwis 
 
 48 
 172 
 
 /.), 
 
 404, 442, 500, 
 
 222 
 
 ." .253, rm, 
 
 483 
 
 445, 
 
 483 
 
 .. 480 
 
 . . 480 
 
 .. 480 
 
 481, 482 
 
 170, 482 
 
 244, 28(1 
 
 703, 
 223, 
 712, 
 
 Keid V. Humiihi-ey 
 
 V. Mayhee 
 
 V. Roiil 
 
 V. .Smith . 
 
 V. Wilson 
 
 Rennick v. C!amcron — E.ast Toronto Mlec 
 
 tion (Out.) 535, 53(5, 542, 547. 552, 555, 572 
 Rew V. Anthony . . 102, 330, 337, 030, 708 
 
 Rice V. Gunn . . 95, 252, 25S, 202, 285, 048 
 
 770 
 234 
 758 
 40 1 
 
 COLUMN. 
 
 jiielianlsoii v. lliohanlson . . 51, 328, 400, 590 
 liiokLP V. Kicker 103, 330, 337, 4ti2, 473, 724, 
 
 720, 772 
 
 Kiphy V. l!i|ilcy 224, 404 
 
 Hitiliio V. Canieron- -South Huron Kluotioii 
 
 (I loin.) 538,573 
 
 Uohorts V. Hall 128, 270, 3,38, 003, 741, 743, 
 
 700 
 
 V. Climio Miupliy V. C'liniio 205,754 
 
 lloburtMon v. Coiilton 7, !>, 21,^22 
 
 . V. I)ai,'an<!au . .. .. 770 
 
 V. Kelly 131,441 
 
 _ V. Men') 030,708 
 
 . V. MeMaator .. .. 154, 155 
 
 Kol.iim V. (Mark .. _. . .. !»3,_300 
 V. Victoria Mutual l''iro Ins. Co. 308, 
 
 374, 454 
 
 Kohiiison 
 iiohlin V. 
 
 V. Hall 
 iiolilin 
 liiidy V. Hoily . . 
 Hoi^ers V. 1-owtliiaii 
 
 V. Maimiiii^ 
 
 V. Ulliiiann 
 
 173, 457, 502, 507, 702 
 318,310,320 
 
 225 
 
 308, 790, 805 
 . . 244, 247 
 . . 3, 440, 048 
 I'oiiianes aii'l Smith, In ro .. .. 708,807 
 
 Itoinann v, Broil re 'lit -Hroilreuht v. Fiek . . 007 
 Koiialil anil the N'illago of Hnin.sels, In re . . 25 
 Hosohateh V. I'arry .. .. 150,273,040 
 
 I{osenl)er''er v. The ( iraml Trunk II. \\'. t'o. 390, 
 
 079 
 Rosciistailt . . 7, 328 
 
 208, 273, 380, 437, 440, 4.54, 588, 
 
 032 
 .. 249 
 
 39 
 
 98, 228, 700, 702, 702 
 
 423, 425, 429, 430, 727 
 
 111, 104, 2(i5, (iOS, (iOO 
 
 17 
 
 02, Of), 07 
 
 Roacnatailt v. 
 Ross, I!e 202 
 
 . Estate, He 
 
 - V. Fiteh . . 
 
 V. Hunter 
 
 V. I'omeroy 
 
 liumohr V. Marx, 
 Hushhrook and Starr, Ito 
 Ktissell, lie 
 
 421, 
 
 V. Canada 1-ife Ass. Co. 239, 251. 370, 
 
 Oil, 709 
 V. Russell ., .. .340, (i99, 700 
 
 V. Tlio(.>ueen 100, 120 
 
 Election (Out.) (2) — Baker v. Mor- 
 gan . . . . 520, 528, 573 
 
 (Ilom.), In re —Henderson 
 
 V. Dickenson .315, 310, 503, 
 505, 569 
 
 (Out.)— Ogilvie v. Baker 5.32, 
 
 558, 509 
 .. 741,742 
 220, 227, 395, 452, 031 
 11, 425, 429 
 131, 401. 445, 730 
 
 Rutherford v. Sing 
 Ryan v. F'ish . . 
 
 V. Ryan . . 
 
 Ryor V. Plows, In ro 
 Rykert v. Aoelon — Lincoln Election (Out ) 529, 
 
 538, 559, 502 
 
 -.-,' 
 
 S. 
 
 Sanders v. Malsburg 258, 325, 745, 770, 773 
 Sands V. .Stindird Ins. Co. ..354, .358, 300, 367 
 Sanson v. The Xorthern liailw.iy . . . . 348 
 
 .Sarnia (Township of) and Town of Sarnia, Re 495 
 Sato V. Huhhird, In Re .. 33, 35, 172, 059 
 .Sawyer V. Short .. .. .. 711,765 
 
 Sayles v. Brown . . . . 201, 450 
 
 ■ Saylor v. Coo[)or . . . . 007, 787, 819 
 
 i Scane v. Duckett . . . . 47, 305, 009, 709 
 
 1 Schloihmf V. C mada Southori) 11. \V. Co. 673 
 
 704 
 
 ! Schneider v. Proctir . . 
 School Trustees of the Township of Hamil- 
 ton V. Noil . . . .243, 022, 044, 665 
 Schultz V. Wood . . .244, 288, 749, 766 
 
OOI.UMN. 
 
 4<,t(i, r)90 
 473, 7-24, 
 I'M, 772 
 •2'_>4, 404 
 cation 
 r,-M, 573 
 741, 743, 
 7!K! 
 205, 754 
 , it, 21, '22 
 .. 77(i 
 131, 441 
 t)3(), 708 
 1.^)4, 155 
 !)3, 300 
 ',>. 3(i8, 
 374, 454 
 >, .507. 7<i2 
 S, 3I!l, 32!) 
 225 
 8, 79!», 805 
 244, 247 
 3, 44!), 048 
 708, 807 
 Fick.. 007 
 nrc. 25 
 .!), 273. 640 
 W. Co. 3!)!), 
 079 
 7, 328 
 0, 4.54, 588, 
 032 
 .. 241) 
 
 . . :^o 
 
 00, 702, 702 
 
 20, 43!), 727 
 
 (15, <;0S, (iO!) 
 
 f. ■■ 17 
 
 (J2, Of), 07 
 
 251. 371), 
 
 Oil, 709 
 
 40, 0!)!), 700 
 
 100, 120 
 
 M(.i- 
 
 ;, 528, 573 
 iidursoii 
 mo, .5().3, 
 5()5, 5()9 
 leaker 532, 
 .558, .500 
 741, 742 
 452, 031 
 1 , 425, 42!) 
 445, 7.30 
 Out ).529. 
 38, 559, 502 
 
 I 
 
 TABLE OF CASES. 
 
 XIX. 
 
 )l. 
 
 5, 770, 773 
 3, 30(1, 307 
 . . 348 
 iiiia, Ra 495 
 35, 172, 059 
 711, 765 
 201, 459 
 07, 787, 819 
 (05, 009, 709 
 , Co. 673 
 .. 764 
 Hainil- 
 )22, 044, 665 
 288, 749, 766 
 
 Schwol) V. Mcfilougblin 
 Scott, 111 re 
 
 V. (Jdx— West I'eterboro' 
 
 (Out.) .. 544,553, 
 • V. Creij,'liton . . 
 
 V. Duncan 
 
 V. (tlion . . 
 
 V. Mitohdl 
 
 — — V. Viisbiirg 
 
 Scottish Auiuriuan Investment Co. v. 
 
 por.atiou of the Village of Elora. 94, 311, 387, 
 
 439, 486, 74.5, 818 
 
 Sci'ihnoi' V. MuLaren . . . . . . . . 88 
 
 Si'iii-s V. Agi'itniltiiral Ins. Co. M51, 365, 372, 452, 
 
 4!)() 
 
 coi.rMN. I 
 164, 003, 612 i 
 . . . . 337 I 
 Election ] 
 
 556, 570, 574 ! 
 231, 607,612 
 . . 79S, 803 
 .. 797,811 
 .. I. 7, 
 
 41)6, 750 
 
 Cor- 
 
 S(;atf>n v. Lunncsy 
 .Sei'sworth v 
 
 f^elhy. In re 
 
 Selkirk Election (Dom. 
 
 ..20.3. 771, ■;2, 773 1 
 Muriilen Silver Plating Co. 89, 1 
 92, 1.58, 301, .389, 779 
 
 .58!), 
 -Yoiuii' V. Smith 
 
 .Slmiii v. Hewitt . . . . 241 
 
 Sliiiily V. (iriml .lunction 1!. W. Co. 
 »Slriw V. MeKun/.ie 
 SiijUey V. (JoriuL,' 
 Shelly V. Hiissey 
 Siii!i)henlsnii V. McCuUoiiyh. . 
 
 Shcrritt V. H'lttie 
 
 Shudder v. I'roctor . . 
 Sliriyly v. Taylor 
 ■Sieve wriujlit v. Leys 
 Sivewri<,'ht v. Lays 
 
 .— v. .Sivewright 
 
 Silsliy V. Village ot Diiiinvill 
 Silvcrtliorn v. Hunter 
 
 035, 
 43!) 
 
 ■);i3, 
 
 2I)S, 270, 031, 710, 
 
 ..273, 321, 621, 
 
 . . 214 
 
 612 
 53!), 
 551 
 707 
 41!) 
 442 
 326 
 247 
 432 
 037 
 012 
 527 
 774 
 625 
 217 
 
 COMTMN. 
 
 SommerviUc V. llae .. .. 201, 2,39, 2!)4 
 South Essex Electii .1 (Out.) — MclJeu v. 
 
 Wigle 5.58, J. 72 
 
 ■ viroy Election (Out.) — Hunter v. 
 Lauder 529, 535, 5.37, 542, 54!'., 5.5.5, 
 .556, 561, .571, 57<> 
 
 (Jreuville Election (Ont.)— EIIIh v. 
 
 Fr.iser2.53, 516, 517, 524, 52.5, 523, 773 
 
 Huron Election (Dom.) — Ritchie v. 
 
 Cameron 538, 573 
 
 Norfolk Election (D.>ni.)— Decow v. 
 
 Wallace . . . .532, 546. 554, .507 
 
 Ontario Election'(Ont.)— Farewell v. 
 
 Brown 176, 532, .534, 
 .558, .560, 5t)(), 575 
 
 ( Dom.)— Sic Kay v. 
 
 Ghui . . . . 53.S, 539, 544, 546, 563 
 
 Oxford Election (Out. )— Hopkins v. 
 
 Oliver . . 38, 244, 2.53, 565, 570, .575 
 
 '"itenfrew Klection ( Uom.)— Banner- 
 
 niau V. McOougall 
 
 570, .571. .573 
 
 (Dom.) (2)— xMc- 
 
 Kay V. McDougall .. .. 615, 574 
 
 'Wentworth Election (Out.)— Olm- 
 
 stead V, Carpenter 517, 519, .520, .501! 
 West Boom Co. v. McMillan 017, 751 
 
 Siniontou v. (ir.iham, . 
 Siminon and the County .hi I. 
 
 Ill re 
 V. Hurnc 
 
 :e ol 
 
 14S, 14!), -193 
 ..774 
 . . 461 
 
 Lanark, 
 
 .. 518 
 
 1.59, 272, 274 
 
 Siii:,'er V. \Villi:uin Mauufajturiu^' ( Jo. .. 241 
 Sis-ions V. Ardai'h — North ."^iiiicoe l']lectioii 
 
 .V)0, 569 
 
 ' 4!)7, 7!)1 
 
 206, 451 
 
 427, 436 
 
 ■Ctiilil 
 
 i"!."..-), .-)IU, .567, .5()9 
 
 El 
 
 (Out.) 
 
 Skvlton V. Tiiompson. . 
 Skirviiig V. Uoss 
 Slater v. Mo.sgi'ove 
 Sleighth)lm v. Barr— Dull'i 
 
 '(Out.) 
 
 Small V. Kiddell 68, 78, 82, 131, .58:), 5Sl 
 Smith, an hif uit, In re . . . . 71, 'i'M 
 
 ■ , He 7!)S 
 
 V. Hahcoek 245, '.UO 
 
 • V. Corporation of Aueister Towii- 
 
 ship .. 100, 107, 1.58, 0I3,,01() 
 ■ V. Cor[)(>i'atioii of tlrj 'I'owiisliip of 
 
 U,aleii,'li 59, 317, 43!), 490, 4!)5, 773 
 
 Sou'dini V. Stan lard Fiio Ins. Co. 354, 3:'il!, 366 
 
 Spears v. Miller 234, 818 
 
 I Sproulo V. Str.atford 96,317 
 
 Sipiier, Re .. ., 114, 118, 167, 180, .330 
 
 I.St, ('ath iriii3<, (!ity of ,iud the County of 
 ! Lincoln, lu re the Arbitr.ition between 310, 
 
 j 4!)5 
 
 ! St. .lohn v. BuUivant 8!», 735 
 
 I Stafford, Corporation of v. Bell 262, 493, 495, 
 
 497, 752 
 
 Stmrn'Ts v. O'Donohoo 50, 041, 707, 717, 722, 
 ' 740, 741 
 
 ■ Standly .v. Perry . . .. 1 10, 781, 791 , 793 
 
 I Stanton and the lioard of Audit for the 
 
 tlounty of Elgin, In re 50, l(i9, 166, 192, 
 
 446 
 1 .Star Kidiiov Pal Co. v. (ireenwool . . 219 
 
 Stirk V. Slieoherd .. .. 1.57,453,721 
 
 I .Starratt v. Miller— Muskoka Election (Out. ) 
 
 545, 
 
 .^tayiior. In re . 
 
 Steele v. (irand Trunk R. W. Co 
 
 V. 
 
 Faught 
 
 
 476, 813 
 
 V. 
 
 Forhe.s 
 
 
 . . 95 
 
 V. 
 
 (ioldie 
 
 , 
 
 .. .536 
 
 V. 
 
 Harrington . . 
 
 02, 
 
 470, 818 
 
 V. 
 
 Keith — The Pictoii 
 
 
 .. 117 
 
 V. 
 
 Keown 
 
 
 424, 503 
 
 V. 
 
 .Merchants Hank 70, 
 
 82, 83, 
 
 114, 115 
 
 V. 
 
 Midlui 1 R. W. Co. 
 
 2!), 31, 
 
 43), t)91 
 
 V. 
 
 Peter.sville . . 
 
 , , 
 
 432, 509 
 
 V. 
 
 Smith 
 
 , , 
 
 8, 21 
 
 )54 
 . . 25 
 103, .509, 684, 
 715 
 431, 432, 7!)4 
 08, 77 
 .. 216 
 130, 280, 727 
 City of 
 
 43, 103 
 
 164, 239, 2(i(> 
 
 164,814 
 
 815 
 
 Smith's Trusts Re .. ..231,3,32,704,731 
 
 Snirr v. (ir.uiite Curling and Skating Co.. 1.57, 
 
 415 
 
 V. Sinitli !)9, SO, 90, 767 
 
 Snetziiigor v. Mclntyre— Cornwall Election 
 
 (Oat.) 540,569 
 
 Solicitor, A, In re . . . . . . . . 40 
 
 Solicitors, lie 45,46,47,710 
 
 Steers v. Shaw. . 
 
 SteiiihoO' V. Merchants' Bank 
 
 Stephens v. Lajilanto . . 
 
 Stephenson v. B,iin 
 
 Stevenson v. C()r[)oration of the 
 Kingston 
 
 V. Soxsinith 
 
 V. Stevenson 
 
 Stewart v. (iesner 
 
 V. M.acdonald— Kingston I'llection 
 
 (Dom.) 531), 54.3, 546, 556, 561, 571 
 
 • V. Rounds .. .. 393, 50'!, 648 
 
 v. Tremain 29!), 820 
 
 .Stinson v. Stinson . . . . . . 770 
 
 Stoeser V. Springer . 497, 704, 715, 7i)3 
 
 j Stogd.ile anil Wilson, In re . . . . . . 215 
 
 i Storinont Election (Out. ) — Bethnne v. Colqu- 
 
 , houn 515. 516, 521, .523, 
 
 ! .524, .52.5, .523, 566, 570 
 
 I (Ont.) (2) Eiupey v. Kerr 562 
 
 I Strange v. Toronto Telegraph (.^o. . . 170. 33S 
 
 Stratton v. O'Snllivan — East Peterb 
 
 Election (Ont. ) 
 
 terborough 
 528, 530, 549, 569 
 
XX. 
 
 TADLE OF CASES. 
 
 8tunrt V. Branton 
 SSulliviin V. iliiity 
 V. 'I'dwn of IJaniu 
 
 tSuuiiiiurH V. C'odk 
 
 V. (Joiiiiiicicial Uuiiiii Ins. (,'o, 
 
 » OLLMN. I 
 
 . . Kir), si'o 
 
 4;{7, TS.'J I I'liioii I'iio Iii.s. (,' 
 
 u. 
 
 ( iii.u.M: 
 
 Nutherlaiitl v. Mcltiniuld 
 
 V. IVttcisiiu 
 
 {button V. AniiHtioirj,'. , 
 ^Sv^•ains()Il v. litiitlcy 
 iSwai.slainl v. Iiuvidsoii 
 SwcetzcT I't al v. Jlosfiifeklt. 
 iSwit't V. MiiitiT 
 ^yiiod V. iJeillacjuitru. . 
 
 .. !.");{ 
 7;t, :iu 
 
 .. 54 
 
 .. 8I'.>. 
 
 73, 7r>, 4!t7, Tid!) , 
 
 8, •-'(», Ul, 101 ; 
 
 , . .TIS, 47.S 
 
 .. 110, 404 i 
 
 , Ku l.-.l, l7-\ 17"), 17(1, ••{8.-), 
 
 XI8 
 
 V. l'"it/-8iniiii()US l.'Ki, l.'W, 
 
 l.-)(), -a:,-', (i!}4 
 
 V. I.yinau I'M, i;is, ;i.VJ, 
 
 t)07, ill."), 70!> 
 
 V. O'Cara VM, \'M, i:W, 145 
 
 V. Shii-iiU . . Kit), 094 
 
 V. Shuolljrud I3(i, i:i7, 138, 
 
 145 
 
 Taylor, In re , . 
 
 V. Adaiiia 
 
 V. liradford 
 
 V. 11.^11.. 
 
 Tliual V. 'I'lio Uiieeii 
 
 T. 
 
 I > aim 
 
 (Doni.) 
 . . 4;2!) I Vanderlip v. Smyth 
 t!l'_', 707 I VuiiKougliiiut V. l)unisoii 
 030, 034, 7 10 I 
 
 340, 020 I \'aiiXon)iaii v. (Jraiit 
 1N7, i>S8, 101 \ Vaii.sicklu v. Vaii«u.ldo 
 'J'hoiniiaoii V. Canada Central 1{. AV. (.'o. 4l.'l, ()71 | \'aii\"(jlsor v. lliigli.--un 
 
 075 ! \'ars v. (iould . . 
 
 V. Ilcdnian . . 100, 408, 470, (i4S ! Veriuilyea v. Ciithriu. . 
 
 V. 'J'lioniiison . . . . .TJ'.t, 405 j Vottei' v. ( uwan 
 
 Tlionison v. Torrance. . . . 705, 813, 814 , 
 
 and The Victoria It. W. Co., In ' 
 
 re . . 
 V. N'ietoria Mutnal Fire Ins. 
 
 Tliorburn v. iJrown . 
 Thornton v. Cajistock 
 Thurlow V Uetik 
 
 080, 
 
 0S8 
 
 Co. 
 
 30!>, 
 
 
 020 
 
 , , 
 
 247 
 
 , . 
 
 207 
 
 3!)'.), 
 
 031 
 
 Valin V. Laiigloia — Montmorency ICleetion 
 
 ..t'7, 503, 5t;8, 059 
 
 045, 792 
 
 182, 200, 257, 340, 
 
 718 
 
 35, 10(;, 172, 180, 340 
 
 79() 
 
 255,431,452 
 
 58, 154 
 
 . . 588, 033 
 
 .. .. 21, 708 
 
 Vezina v. Ne« York Life In.s. Co. . . . . .'{70 
 
 Victoria Mutnal Fire Ins Co. v. Davidson 220, 
 
 2.50, 053 
 
 — V. 'J'lioniiison 143, 
 
 147, 372, 373 
 Vinden V. Fra.ser .. .. 2.54, 30 1 , 3 1 1 
 
 \'o''el V. Orand Trunk 1{. \V. Co. . . 08.">, 819 
 
 Vogt V. Iloyle 108 
 
 , Township of, v. Township of Sid- I A'otern' List of the Village ot L'( »rignal f<ir 
 
 ney 489,404 the year 1S82, In ro 519 
 
 Thurston v. Hreard . . . . . . 705 
 
 Tidey V. Crail) 80,88,00,3021 W. 
 
 I'ilt V. Knap]) . . . . . . . , . . 720 i 
 
 Tinunins V. Wriglit 21,251 \Vad.>wortli v. Hell 733 
 
 Tooniey V. Tracey . .387, 810, 811, 81 (i i Walker, He 298 
 
 1'oronto Brewing and Malting Co. V. lilala; 141,: an Insolvent, lie ,. .. (10,584 
 
 142, 14,3, l.")0, 2S4, 3.")0j v. McMillan . .71, 97, 131, 251, 4 Hi, 705 
 
 City of, and Scott, In re .. 49,3, 494 Wall.ice v. Cowan 70i 
 
 liarhour Coninii-ssioners, He .. 115,1 v. Hutchison 
 
 -- Hosjiital Trustees V. benham 
 
 770, 
 
 ri 
 
 - V. Whaley 
 
 408 I Wallliridiie v. IJown — West Hastings Elec 
 
 . . 103 i tiou (Ont) 
 
 797, 803 I Walnisiey v. Ucnt Guarantee Co. 143, 147, 
 
 705 
 
 323 
 
 14 
 
 Torrance v, Torrance 
 'J'own V. liorden 
 Totteu, Ue 
 
 V. I5owen 
 
 Travis v. liell 100, 249, 300, 441 
 
 Treleveu and Horner, In re 201, 338, 741, 709, 
 
 770, 770 
 Trerice v. liurkett . . . . 388, 055, 737 
 
 Trinity College v. Hill 4711 
 
 Troop V. Hart. . . . . . 52, 58, 417, 708 Watson v. liradshaw 
 
 Trotter V, Chambers .. .. .. .. ^20, v. Dowser 
 
 Trout V. Moulton .. .. .. .. 73 1 v. Ketcliuni 
 
 Trudc V. I'hcenix Ins. Co. 173, 220, 221, 029, i v. Lindsay 
 
 710 
 Trust and Loan Co. v. Gallagher 459, 403, 4(i5, 
 
 700 
 
 V.Hill ,H93 
 
 V. Jones 230, 231, ()34 
 
 — - V. Kirk . . . . 401 
 
 V. Lawrason 
 
 5(i3 
 149, 
 45, 70S I 150 
 
 'M'2, .■J2(i Walton v. Coriimution of the Countj- of 
 
 York. 177, 178, 214,279, 42.3, 433, 507, 780, 
 
 700 
 
 Wardell v. Trenouth 48 
 
 Waterloo Mutual Ins. Co. v. lloLinson. 242, 503, 
 
 057 
 
 .. 2C2, .SIO 
 
 . . 405 
 
 295, 3.34, 767 
 
 193, 239, 420, 45(i 
 
 V. MoDonakl 244 
 
 V. Severn . . 108, 200, 400, 819 
 
 \\ atts V. Atlantic Mutual Life Ins. Co . . 377 
 Wcatherhead v. Weatherhead .578, 0.30, 0,32 
 
 Weaver v. Vanduseu — Weils v. Agerinaii 334, 
 
 4,")S 
 212, 450 j Welfstcr v. Leys . . . .273, 021, 622, 801 
 
 Turley v. Benedict 229, 2.34 i Weldon v. Vaughan . . 3, 5, 1.30, 051. 737 
 
 Turner v. Imperial Bank of Canada, In re i Welland Flection (Ont.)— Beatty v. ».'urric520, 
 
 217,219 540, ■")()() 
 
 V. Lucas .'{07 , (Ont.) (2)— Buchner v. 
 
 Tylee v. The Queen 
 Tyrwiiitt v. Dcwsou 
 
 113, 405, 423, 599, 700 
 79U, 707, 798, 799, 805 
 
 Currie 533, 535, 544, 547, 
 553, 500, 501, 572 
 
 W( 
 
 \Vh.' 
 
 Wl,r 
 
 ( 
 
 Wl,i, 
 Whit 
 
 
 Wi 
 
( iii.um: 
 
 171;, :5S-'', 
 
 i;u;, i:«, 
 ), :f.v_>, cm 
 , 1:1s. -.m, 
 
 1, (11'), 70'J 
 
 7, i:<s, 145 
 
 i;i(i, 094 
 
 , 1:17, 138. 
 
 145 
 
 lei'tiiiii 
 )3, r)(iS, (i59 
 (M.-), 702 
 0, U57, :54(j, 
 718 
 7'J, 180, :mo 
 
 . . 7'.)(; 
 
 55, 4:11, 45'2 
 
 58, 154 
 
 r.ss, {\n 
 
 •Jl, 708 
 
 .. :r,i> 
 
 ddson -"•^0, 
 
 •J5(>, ()53 
 
 )nij)si)ii 143, 
 
 147, :i7-J, 373 
 
 irA, 304, 311 
 
 . OS.-), Sl!> 
 
 . . KJS 
 
 .. 519 
 
 .. 733 
 
 . . 'l'.)S 
 
 (;(», 5S4 
 
 251, 4 Hi, 7'i5 
 
 70(1, 705 
 
 . , 3-J3 
 
 .. 14 
 
 I 
 
 143, 147 
 
 5(13 
 
 149, 
 
 150 
 
 iiuiity iif 
 133, 507, 789. 
 790 
 . . 48 
 isun. 24--', 503, 
 (i.')7 
 . . 2C2, 310 
 . . 4(15 
 •J95, 334, 7137 
 i>;(9, 42(1, 45(1 
 .. 244 
 •MO, 400, S19 
 , Co . . 377 
 .578, G3(), (132 
 
 ** 45S 
 
 (121, 622,801 
 , 130, 051, 737 
 
 V. k'ui'iii! 529, 
 540, 50(1 
 loliiier V. 
 
 035, 544, 547. 
 , 5G0, 501, 572 
 
 TAP.r/R OF CASES. 
 
 cm, CMS'. I 
 "WcUaihl, Tnuii iif V. I'.iown .. 27. 25(1, 777 ' Wilby v. Stiunlanl Iiia. ("n. 
 
 CiiiKil i',iil.ii'gi'iiR'i)t. In re -Kitcli s. 1 W'ilki^-i v. WilkiM 
 
 Mrl! I.' ..11.3, 232. 414, 793 Wilkiii.M v. CcMch .. 
 
 ^Vlsll■v V. Wills -Wist Hasting.'" Klfctimi ; Will.tt v. Hn.wii 
 
 XXI. 
 
 <'()H'MV. 
 .. .3.VS 
 .. SIO 
 
 .3.S(;, .->,S9, 747 
 .. 101 
 
 (((lit.) 530, 5,50 j Williams ". {'(.rliy .. 1 12, 190. 24 », 2S4, 041 
 
 "West Klijiii Kkvtidii ((Int.)— ('a.sca.lcti v. | Willi.iinsim ,-. Kwing 127,128,181,311,039 
 
 Miiiin"! .. .528. 500, 577 Wills V. A]L'' 1: laii .3.34,458 
 
 Ilatitiii-s i:icti(>(i (Ont.) (2) floliicu i Wiliiiot v. .St.'.kor 717.820 
 
 V. lioliri'fSMii .■i4l, .5.5.5, : Willsaii, !!t! -Lloyd v. Tifhliornc .. 272. XW 
 
 .-1(10 V ilnnvii 4rt, 70, 82, !7I, 172, 58|, ().-.3 
 
 ((Int.) — Wain. liil-'' 1 V. (',ini)il.(;ll .. 411 
 
 V. Mown . . 5(13' V. (iilnicr 203.2.34 
 
 ■ (Ont. I — Wi'slfV V. I _ V. Kvh; 403 
 
 Wills . . 5.30, .5,50 — _ V. .Mc( !nir<>. In re; ..117, 118, 220, 0.59 
 
 — Iliiinii l'.].L'tioMM)(iin.).Inn' Mit.-hcll | v. York 10,4tS 
 
 V. ( ,11111 loll ,. 31.5, ,529. 503, 5(1S 570 1 v. .I'.tna Life In.s. Co. .. .. 034 
 
 — Niirtliuiiliiii'iii.l l':!rctioii (Dnrn.) I Wilts.v v. Ward 219 
 
 I'-iiinliMni V. Kirr .. 570,571,573 Wiltsi.'. v. Ward 210 
 
 JVtirl.ni"' Ll.jctiiin (Ont.) -Scott v. WiulicM v. Koan .. 443, .501 . .502. .'.(14 
 
 (!cix 541, 553. .550, 570, 574 
 
 'rcpiiiiito MKc-tion (Out.) (2) -.Adanison 
 
 V. Bull ,. .5,57 
 
 (Ont.) — Aniistrniig ' 
 
 V. CrrM.ks ,52S. .-ad, 53,5, 
 
 Wclliii'.'ton Kl.'ctioii (Ont.) -Moore v 
 
 Wiuliild V. Kean 
 
 Wolllr V. HnLTlK's 09(), 717 
 
 Wolvcrton and tlio Townships of South and 
 
 Nortii (Iriinshy, Ru .. .. .. 003 
 
 Wood V. Hart . ' 57s 
 
 V. Iliirl.. .. .. .. .. 745 
 
 537, 542, 551, 552, 5.-3. I v. 'I'lio (,)i(ccn . . 155. 203, 590, 000. 822 
 
 .572, 57O) I Woodliall, lie— ( iarlnitt v. Iluwson 1.58, 275 
 
 247. 318 
 
 Wnodin.in V. I'd.'iir 
 
 Mf\ low.'in 
 
 Yolk I'll'ition (Out.) — (Iralianio v. 
 
 I'att'i-soii 514, ,574 
 
 Wisturn Assnr.nioi.' ( Vi. v. Provincial Ins. 
 
 C 190, 237, .353 
 
 Can.ula, &c.. V. Inca .. .. 095 
 
 Ivoan and .Savings Co. v. 
 
 Dunn ..229, 2.30, .33(1, 473 
 Wethendl and .loncs, Ite .. .. 117,240 
 
 Wlie.itlev V. Sharjia 52 
 
 Whcatly V. Sh.irp . . . , 101, 334, 035, 72S 
 
 549, .572. W Initf V. Cin.ida Cuarantnn ''o, . 385, 777 
 
 Woodward V. Shicdds.. .. .58, 000, 012, 709 
 
 Workman v. l{ol.b .. 174, 29.3, 410, 425. 81!l 
 Worthiiigtoii V. .McUon.ald .. .. .. 5S'i 
 
 Wright V. lne()ri)oratud .Syiidd of Ihiron 
 
 98, 108, '09, 145, 14S 
 
 ■ V. London Lifo Ins. Co. 239, 354, 380, 
 
 012 
 
 V. Sun Mutual Ins. Co. 127, 380, 453 
 
 V. Wav 023, 043 
 
 Wyld V. MoMaster . . . . 12, 349, 3.50 
 
 Y. 
 
 WiicliT V. (iilil)s — North Ontario Klrction 
 
 (Doin.) .. 539, .5,53, 570, 711, 750 
 
 Whiinstdl V. OilTard 92. 210 
 
 White V. Lancashire Ins. Co. . . 3.52 
 
 V. Murrav — North Renfrew Elee- 1 York, Coinitv of, v. Toronto fJravcI Road 
 
 tion(Dom.) .. .54(), 574 ] an.U'oncrete Co. ..129,249,200,700, 
 
 V. Townshij) of (Jostield . . 445, 784 I 793, 820 
 
 ■ (pf S.mdwich La.-t, In i Township of and Willaon, Re. . .. 18 
 
 ru . . . . 48S, 489 ' Young, He 2.35, 773 
 
 Whitehav v. Taylor 313 
 
 Whitely V. MacNiahon . . , . 10, 19 
 
 Widdilield v. Simons. . . . . . . 287 
 
 AVidmeyer ct al. v. MeMahon, In re 215, 217, 
 
 321, .320 
 U'i'de v, Harris . . . . . . . . 007 
 
 V. Hohson ICO, 707 
 
 V. Huher .. ...3.3C, .340, 347, .585 
 
 V. Robertson . . . . 009, 740, 741 
 
 V. Smith— Selkirk Election (Dora.) .539, 
 
 551 
 v. AVright . , . .347, 578, 618, 09.? 
 
A(I( 
 Agi 
 
 A III 
 Anc 
 Anc 
 Ai)(] 
 Att( 
 
 Bad 
 Bad< 
 J>aiii 
 liairi 
 
 Ballt 
 
 Bank 
 ] 
 
 Barbi 
 < 
 
 Barrt 
 
 Bates 
 E 
 
 Beal 
 t 
 
CASKS. 
 
 AFFlllMKD, REVERSED, OR SPKCIALLV ('ONSII)KIIEI). 
 
 ^ TAOK. I 
 
 AiIaiiiNdii /'. AdaiiiHiiii, 25 C'hy. 550 mtcd. 
 
 Sou Iiuinl.lo r. Liinisli, 27 t'liy. 187. .. . 434 
 
 'JSCliy. '2'2\ ; ftninnoil 
 
 S. C'.,7 A. It. 5!)2 428 
 
 Agricultural Invfstiiieiit (,'o. v. The Fedoral 
 
 IJaiik, 45 Q. U. 214; atlirnied S. ('., 
 
 null iioiii. Agriuultiii'iil Saviiii;8aiul Loiiu 
 
 AsHociatiuii v. Kudural liaiik, (i A. ii. 
 
 192 08 
 
 Allan c. Mu'l'avisli, 28 C'hy. 5M9 ; ruversed 
 
 S. C.,8 A. H. 410 29(; 
 
 Ancastcr, Township of r. Durraud, 32 C. 1'. 
 
 5()3 ; alUrinud in ai)|)cal 793 
 
 Anchor Marino Ins. Co. v. I'lucnix ln8. Co., 
 
 30 C. I'. 570; atlirnied S.d, (i A. R. 507. 384 
 Anderson v. Hull, 29 Chy. 452; atlirnied S. 
 
 C., 8 A. I{. 531 804 
 
 Attorney Central of Ontario v. O'Heilly, 26 
 
 Chy. 120; (i A. 11. 57(i ; atlirnied, 8. C, 
 
 8 App. Cas. 707 233 
 
 ■ ■ — ex rel. Barrett 
 
 V. The International Bridj^e Co. , 28 C-^hy. 
 
 05 ; reversed S. C., sub noni. Attorney- 
 
 (Jeneral c. International Bridge Co., 
 
 A. R. 537 49, 343 
 
 Backus I'. Smith, 44 Q. B. 428 ; reversecl S. 
 
 O., 5 A. H. 341 410 
 
 Badenaeh r. Slater, 8 A. K. 402 ; aifirmed 
 
 by Supreme Court 23rd June, 1884 299 
 
 ]?ain r. McKay, 5 P. 1{. 471, overruled. 
 
 See Taylor c. Adams, 8 P. R. 00 . .707, 912 
 liaird r. Ikird, 20 C'hy. 307, explained and 
 
 reconciled. See Town v. Borden, 1 O. 
 
 R. 327 803 
 
 Ballagh v. Royal Mutual Fire Ins. Co., 44 
 
 Q. B. 70 ; reversed S. C, 5 A. R. 87 . . 305 
 5 A. 
 
 R. 87, approved. See Mutual Fire Ins. 
 
 Co. of the County of Wellington v. Frey, 
 
 5 S. C. R. 82 304 
 
 Bank of Montreal v. HalTner, 3 (). R. 183 ; 
 
 reversed S. C, 20 C. L. .1. 147 004 
 
 Barber i'. Morton, 45 Q. B. 38(> ; reversed S. 
 
 C.,7 A. R. 114 82 
 
 Barrett, Re, 5 A. R. 206, followed. See 
 
 Snarr v. Smith, 45 Q. B. 156 59, 767 
 
 Bates, Re, 40 Q. B. 248, followed. See Re- 
 
 gina J'. Washington, 46 Q. B. 221 104 
 
 Beal V. Smith, L. R. 4 C. P. 145 (Westniin- 
 ter Case), followed. See VVest Elgin 
 
 P.\OE. 
 Kluction (Out.)— Ca.suudcii r. Munroc, 1 
 II. K. ('. 223 .Wf! 
 
 lioaty r. Biyut;, 9 P. R. ."/.'O, .;xiilaiiic<l. 
 
 See Arkell ut ul. c. (iuigcr, 9 P. R. 
 
 52:{ 390 
 
 not followed. Sue Christio v. 
 
 Conway et al. , 9 P. 1!. 529 390 
 
 Hcemer v. Oliver, 3 O. R. 523 ; allirmud S. 
 
 C, 20 C. L. J. 286 2;i!> 
 
 Hell V. Lee, 28 Chy. 150 ; varied S. (J., 8 A. 
 
 R. 185 813 
 
 r. Riddell, 2 O. R. 25 ; alliiined in ap- 
 peal 81 
 
 Bellinger v. Tlira.sliur. 9 P. R. 206 ; allirin- 
 
 eii S. C. , 1 O. It. 313 05, 728 
 
 Hilliiigton c. I'roviiicial Ins. Co. ,2 A. R. 1S8; 
 
 allirmed S. C, 3 S. C. R. 182 3.59 
 
 Birkett et al. v. MeOuire et al., 31 C. P. 
 
 4.30 ; reversed S. C, 7 A. R. 53 054 
 
 Hlake r. Kirkpatrick, 27 Chy. 80 ; reversed 
 
 S. C, A. R.212 4-:9 
 
 Boale i: Dick.son, 13 C. P. 337, overruled 
 
 See Caldwell v. AlcLareii, 9 App. Cas. 
 
 392 783 
 
 Bond I'. Treahy, ,37 Q. B. 300, tlistinguished 
 
 See Petrie r. Hunter et al. ; (lueat et 
 
 al. V. Hunter et al., 2 (». R. 233 312 
 
 Boswell I'. Sutherland, 32 C. I'. 131 ; reversed 
 S. C, 8 A. R. 2.33 130, 179, 611 
 
 Brayley v. Ellis et al., 1 O. K. 119 ; atHrnieil 
 
 S. C, 20C. L. J. 144 57, 300 
 
 Brice v. Bannister, L. R. 3 Q. B. 1). 569, 
 distinguished. See Smith f. Corpora- 
 tion of Ancaster Township, 45 (}. B. 
 86 100, 013 
 
 Brown v. Great Western R. W. Co., 40 Q. 
 B. 333; 2 A. R. 04 ; aHirmed S. C, sub 
 nom. (ireat Western R. W. Co. of Can- 
 ada i\ Brown, 3 S. C. R. 159 079 
 
 r. O'Dwyer, 35 Q. B. 354, followeil. 
 
 See McKay v. McKay, 31 C P. 1 .... 182 
 
 Browne c. Phillips, Anibl. 41(i, followed. See 
 
 Re O'Brien, 3 O. It. 320 267 
 
 Bruci', County of r. McLay, 3 O. R. 23 ; in 
 
 appeal 09S 
 
 Brussels, Town of v. Ronald, 4 O. R. 1 ; in 
 
 appeal 487 
 
 Burnham r. Itainsey, 32 (^. B. 49, distin- 
 guished. See Lapointo v. Latleur, 46 
 
 iii^y. B. 10 202 
 
 I 
 
XXIV. 
 
 CASES AFFIRMED, REVERSED, ETC. 
 
 VAOE. 
 Callow r. l,:lWl■.■nc(^ 3 M. & S. 0"), followcil. 
 
 S.u lil.ick r. Stiiuldand, 3 (>. It. 217.. SO 
 Caiiiii'dii !•. (lain]il)i'll, '2' C'liy. 307 ; affirmed 
 
 S. v., 7 A. It. :{lll 439 
 
 I. Wfiliiigtoii, (iiev ami Uriicu 1{. 
 
 W. <■(!.. 'J7 <'irv. !(.■) ; reversed S. ('.. '2S 
 
 Chy. .Sl.'7 ' -'04, ()74 
 
 CainpLrll r. Ilolyland, L. K. 7 Cliv. D. 17:{, 
 
 iiiii.uki'cl ii]iiiii. See Trinity CoUe^'o r. 
 
 Hill, ■-' (). l;. -MS 471 
 
 r. Mtl)(iu-all, 2() Chy. 280; le- 
 
 viisoil S. ('., 5 A. K. "lO.'i : .'^. ('., sul) 
 liciiii. Mclloiigall r. Canipliell, S. ( '. It. 
 r.02 477 
 
 ,: Itoliiiiscm, 27 (.'liy. (VM. UA- 
 
 lowt'd. .StMi (liainlit'ilnin r. Sdvais, 28 
 Chy. 404 .* 470 
 
 Canada hNicaiid Marine (iis. (\>. v. Western 
 Assiuiiiiee ('()., 20 Cliv. 2t)4 ; atliiiiied 
 (S. C. , ■") A. It. 244 . . .' 383 
 
 Southern K. \V. Co. r. Iiiternatidnal 
 
 P.ri.l^e Co., 28 Chy. Ill; 7 A. 11. 220 , 
 atlirnied S. ('., siih num. Intii'u.itiiinal 
 Urid^e Co. r. Canada Southern It. W. 
 Co., 8 A 1.11. Cas. 723 387 
 
 Cannon r. The Toronto Corn E.xehange, 27 
 
 Chy. 23 ; ailiinied .S. ('., T) A. K. 2(;S . . 14G 
 
 Carli.sl.. r. Tait, 32 C. P. 43 ; reversed S. C, 
 
 7 A. P. 10 8") 
 
 Carriekfergus case, 1 O'M. & H. 204, fol- 
 lov<'d. See East l^lgin Election (l)oin.), 
 Hhio r. Arkcll, 1 H. K. C. 700 574 
 
 Cnsev '•. Hanlon, 22 Chy. 22r>, followed. 
 
 See (iongh r. Bench, !t P. It. 431 742 
 
 Chaniherlain /•. Stormont, 4.") Q. 15. 2(1, cited 
 .Si'c lie Hoard of Kducation of Morria- 
 Ijurg and the Township of Winchester 
 
 8 a: H. 11)9 (Jfio 
 
 Chanilierlen v. Clark et al., 1 O. E. 13j ; 
 
 atlirnied S. C. , 9 A R. 273 271 
 
 Charles, Ite— Fulton c. Whatmough, 1 O. 
 K. 302; reversed by the Court of Ai)- 
 peal, 20 C. L J. 347 803 
 
 Church V. Fenton, 28 C. P. 384 ; 4 A. K. 
 
 loO ; adiruied S. C, 4 S. C. \i. 239. . . 28 
 Citizens' Ins. Co. of Canada i: Parsons, 4 S. 
 
 V. R. 21;"); reversed 8. C, 7 App. Cas. 
 
 96 115, 363 
 
 Clarke r. White. 28 C. P. 293 ; reversed S. 
 
 C. II)., 308 ; 3 8. C. It. 309 750 
 
 Collins, Re, 8 P. R. 543, distinguished. See 
 
 Ite Allan— I'ocock c. AHan, 9 P. R. 277. 273 
 Colton, Re— Fisher r. Coltou, 8 P. R. 542, 
 
 cited. See .Mian, Re- Poeock r. Allan, 
 
 9 1'. K. 277 «57 
 
 Clouse I'. Canada Southern R. W. Co., 4 0. 
 
 K. 28 ; in appeal G74 
 
 Clowes r. llilliard, L. R. 4 Chy. D. 413, 
 followed. See McClenughan r. Grey, 4 
 O.K. 329 .;.. 110 
 
 Cobourg Town Trust, Commissioners of, 22 
 Chy. 377, follo\.'ed. See Re Toronto 
 Harhour Commissioners, 28 Chy. 195 . . 115 
 
 CoBgrave et al. i: Bovlo, 45 Q. B. 32 ; 5 A. 
 
 R. 458 ; reversed S. C, 6 S. C. R. 165 70 I 
 
 PAOE. 
 
 Court r. Walsh, 1 0. It. 167 ; afTirme<l S. C, 
 
 9 A. R. 294 426 
 
 CV.wan's Estate. Re, L. R. 14 Chy. D. 638, 
 
 followed. See Eeamnig v. Woon, 7 A. 
 
 R. 42 34 
 
 Cowling r. Dixon, 45 Q. B. 94; reversed .S. 
 
 C., sul) nom. Cowling r. Dickson, 5 A. 
 
 R. 549 290, 413 
 
 Crathorn i\ Bell, 40 Q. B. 305 ; affirmed S. 
 
 C, 8 A. R. 537 314 
 
 Crooks )'. Crooks, I (!"hv. 57, remarked upon 
 
 and followeil. See Re Donovan — Wilson 
 
 I'. Beatty, 29 Chy. 280 45 
 
 Cross i: Currie, 43 Q. B. 599 ; affirmed S. 
 
 C, 5 A. R. 31 81 
 
 Cruickshank v. Corhey, 30 C. P. 466; affirm- 
 ed S. C, 5 A. R. 415 14 
 
 Cruso i: Bonil, 9 P. R. Ill ; reversed S. C, 
 
 1 O. R. 384 472 
 
 Crysler r. McKay et al., 2 A. 11. 5(i9 ; rever- 
 sed S. C. , sub nom. McKay r. Crysler, 
 3 S. C. R. 436 28 
 
 Culver r. Swayze, 26 Chy. 395, considered 
 and followed. See Campbell c. Camp- 
 bell, 29 Chy. 252 3<t.", 020 
 
 Davidson r. Oliver, 6 A. R. 505 ; reversed 
 
 by the Supreme Court 811 
 
 I'. Mctiuire, 27 Chy. 483 ; altirmod 
 
 S. C, 7 A. K. 98 302 
 
 Denny )•. The Montre d Telegi-aph Co. , 3 A. 
 R. (!28, not followed. See Austin v. 
 Davis, 7 A. R. 478 172, 198 
 
 Dewnr v. :Mallory, 26 Chy. 618, varied. See 
 
 S. C, 27 Chy. 303 282 
 
 Dilke c. Douglas, 26 Chy. 99 ; reversed S. 
 
 C, 5 A. R. 03 459 
 
 Direct United States Cable Co., (Liiriitcd) 
 V. The Dominion Telegraph Co. of Can- 
 ada, 28 Chy. 648 ; affirmed S. C. 8 A 
 R. 416 14, 15, 17, 624 
 
 Dobell et al. v. The Ontario Bank. 3 O. R. 
 
 299 ; reversed S. C, 9 A. R. 484 . . 70, 149, 647 
 
 Doe Johnson v. Baytup, 3 A. & E. 188, fol- 
 fowedi See JCelles v. White, 29 Chy: 
 338 229 
 
 Dolphin V. Lay ton, L. R. 4 C. P. 1). 130, 
 remarked njion. See Bl.nd et al. v. 
 Andrews et al., 45 Q. B. 431 218 
 
 Dominion Loan & Savings society 7-. Darling, 
 
 27 Chy. 68 ; affirmed S. C, 5 A. R. 576 204 
 
 Donovan Re— Wilson v. Beatty, 29 Chy. 
 280; reversed S. C, sub noui. Wilson 
 V. Beatty — In re Donovan, 9 A. R. 
 149 45 
 
 V. Herbert, 4 0. R. 635, in appeal 422 
 
 Doyle r. Bell, 32 C. P. 032 ; in appeal .... 527 
 Drummond v. Guickard cited in Green v. 
 
 Adams, 2 Chy. Ghamb., overruled. 
 
 See Cruso v. Bond, 1 O. R. 384 472 
 
 Duff r. Canadian Mutual Fire Ins. Co., 9 P. R. 
 
 292; reversed S.C, 2 O. R. 560. .47, 108, 374 
 27 Chy. 
 
 391 ; affirmed S. C, 6 A. R. 238 373 
 
 Dumble v. Dunible, 29 Chy. 274 ; reversed 
 S. C, 8 A. R. 476 805 
 
 Fliij 
 
m 
 
 CASES AFFIRMED, REVERSED, ETC. 
 
 XXV. 
 
 I'AOE, 
 
 s. c, 
 
 426 
 
 , r>38, 
 
 , 7 A. 
 34 
 
 w<\ S. 
 , f) A. 
 •J!»0, 413 
 
 led S. 
 314 
 
 1 iqiou 
 Vilsoii 
 45 
 
 10(1 S. 
 81 
 
 attirin- 
 14 
 
 s. c, 
 
 47'2 
 
 rover- 
 i-vsler, 
 ...... 28 
 
 iiilered 
 ('iiinp- 
 . . . 3<t.', G20 
 
 jveraed 
 811 
 
 ilirmed 
 30-2 
 
 r..,.1A. 
 lijtiu I*. 
 . . . 17-2, 1!'S 
 
 (1. See 
 282 
 
 rsed S. 
 .... 459 
 
 iiniteil) 
 of Can- 
 S A 
 15, 17, (524 
 
 3 O. K. 
 70, 149, 647 
 
 88, fol- 
 io Chy: 
 .... 229 
 
 1). 130, 
 t al. I'. 
 218 
 
 Oarling, 
 R. 576 204 
 
 J9 Chy. 
 Wilson 
 
 A. II. 
 
 45 
 
 •ippeal 422 
 al .... 527 
 reen v. 
 srriileil. 
 
 472 
 
 , 9 F. 11. 
 47, 108, .374 
 
 27 Chy. 
 
 8 373 
 
 •everseil 
 805 
 
 P.\GE. 
 
 Diinihle V. T-;irnsh, 25 Chv. 552 ; affirmed H. 
 
 C, 27 Chy. 1S7 ..."". 434 
 
 Dupuy >: Diicf, ".., S. C. R. 425 ; reversed 
 S. C, .sill) iiom. Diicondii c Dupuy, 9 
 App. Cas. l.-)f) 18;i, 758 
 
 Karls !•. McAlpiuc, 27 Chy. 1(>1 ; aflirmed 
 8. C, (I A. U. 14.- 813 
 
 Eastern Cduiitics, &c., R. \\ . Cd. v. Mar- 
 riaije, 9 H. I.. Co. 32, followed. See 
 Woo.l r. Hurl, IS Cliy. 14'.) 745 
 
 Kdgarct ux. r. Northern R. W. Co., 4 O. R. 
 
 201 ; in appcid f>81 
 
 Ellerl.y r. W.iltoii. 2 P. R. 147 ; followed 
 
 See Scott v. Mitcdi.'ll, 8 P. R. 518 .... 1, 1 
 Elliott r. Rn.wn, 2 O. R. 2.")2. in ajipeal. . . . .321 
 Ennnett r. (^Hiinn. 27 Cliv. 420 ; reversed 
 
 S. C, 7 A. R. 30(i ...' 408 
 
 Erh V. (iroat ^Vostern R. W. Co.. 42 (,>. 15. 
 
 40 ; 3 A. R. 44tJ ; aftirniLil .><. C., 5 .^'. C, 
 
 R. 179 050 
 
 Faulds r. Harper, 2 0. R. 405 ; reversed S. 
 
 C, A. R. 537 427,470 
 
 Ftllowes r. Ottawa C!as Co., 19 C P. 174, 
 
 coniiiicntc'd U]ioii. Seo Montreal ("ity 
 
 and District Savings Rank t: t'ountv of 
 
 Perth, .'12 C. P. 18 199, 015 
 
 Fitzgerald i\ (iran.l Trunk R. ^V. Co., 28 C. 
 
 1'. oSO ; 4 A, R. (101 ; atilrnied S. C, 5 
 
 S. C. R. 204 085 
 
 Fletclier >\ Rylauds, L. R. 1 H. L. 3.30, 
 
 appiieil. See Furlong v. ('arroll, 7 A. 
 
 R. 145 
 
 Flight )'. Thomas. 11 .a,. kV.. OSS; 8 CI. & 
 F. 2"!, c(]Usiili.-i'od anil followed. Sec 
 Ruruhani i: (iarvey, 27 Chy. 80 . . 42' 
 
 Forrester i: Thrasher, 9 P. R. 383 ; atlirmed 
 S. C, 2 0. R. .38 
 
 Forster r. Patterson. L. R. 17 Chy. D. 132, 
 not followed. See Faulds c. Harper, 2 
 O. R. 405 427 
 
 Foster i\ Emerson, 5 Chy. 134, remarked 
 
 upon. SeeWorkmanr. RoW),28Chy.213 293 
 
 Fox V. Toronto and Xii)is3inj R. W. Co., 28 
 
 Chy. 212 ; allirmed in appe il 091 
 
 Frederiotoii Mayor, &c.. of *•. The Queen, 3 
 S. C. R. oO.-), cited. See Regina r. 
 Howard, 45 Q. B. 340 . 119 
 
 Frey c. The Mutual Fire Ins. Co. of the 
 County of Wellington, 43 Q. B. 102, 
 4 A. R. 293; reversed. S. C, sub 
 nom. Mutual Fire Ins. Co. of Welling- 
 ton ('. Fiey, 5 S. C. R. 82 .368 
 
 Fryer v. Shields, 45 Q. B. 188 ; reversed S. 
 C, 6 A. R. .57 04, 449 
 
 Fulton ct al. v. Upper Canada Furniture Co., 
 32 C. P. 422 ; reversed S. C, 9 A.R. 211 126 
 
 G.alerno aihl ♦^he Corporation of the Town- 
 ship of Rochester, In re, 46 Q. B. 379, 
 followed. See McTiernan r. Frazer, 9 
 P. R. 240 220 
 
 Galloway v. Corporation of Londou, L. R. 4 
 Eq. 90, cited. See Stevenson i'. Cor- 
 poration of the City of Kingston, 31 C. 
 P-im 43 
 
 Castou V. Wald, 19 Q. B. .586, doubted. 
 
 See Furlong i'. Carroll, 7 A. R. 145 281 
 
 281 
 
 '30 
 65 
 
 Gauthierc. Waterloo Mutual Ins. Co., 44 Q. 
 
 B. 490; affirmed S. C, 6 A. R. 231 ... . 
 Georgian Bay Tr.msportation Co. v. Fiaher, 
 
 27 Chy. .340; reversed S. C, 5 A. R. 
 
 ,383 :mi, 
 
 Gildorsleeve r. McDougall, 31 C. P. 104 ; 
 reversed S. C, A. R. 553 5, 
 
 (iooderham r. Toronto & Nipissing R. W. 
 Co., 28 Chy. 212 ; alKrnied in appeal. . 
 
 Grand .Junction Railway and County of 
 Peterboro, Re, 45 *.). B. .302 ; reversed 
 S. C, 6 A . R. .3.39 ; 8 S. C, R. 76. . 122, 
 
 (", Peterborough 
 
 8 S. C. R. 70, followed. See In re Can- 
 .ada Atlantic R. W. Co., and the Cor- 
 poration of tile Township of Cambridge, 
 3 0. R. 291 
 
 Grand Trunk R. W. of Canada r. Toronto 
 Grey and Bruce R. W. Co., 2 O. R. 441 ; 
 in appeal 
 
 (Jrant c. McAlpine, 40 Q. B. 379, followed 
 See McT'iernan i: Frazer, 9 P. R. 240. . 
 
 (heat Western R. W. Co. i\ McEwan, 28 
 Q. 15. .528 ; 30 Q. R. 550, f(dlr)wed. See 
 Stocscr f. Springer, 7 A. P»,. 497 
 
 Green v. Watson, 2 O. R. (i27 ; affirmed S. 
 
 C, 20 C. L. J. 285 
 
 Greet i: Citizens Ins. Co., 27 Chy. 121 ; re- 
 versed S. G., 5 A. II. 590 
 
 v. The Mercantile Ins, Co., 27 Chy. 
 
 121 ; affirmed S. C. , 5 A. R. .590 
 
 (-. The Royal Ina. Co., 27 Chy. 121 ; 
 
 reversed S. C, 5 A. R. .59() 
 ■ Griffith r. ]?rown, 20 Cliy. 503 ; reversed S. 
 
 i C, 5 A. R. 303 
 
 I Guelph )'. The Canada Co., 4 Chy. 050, 
 ' cited. See Feuelon Falls v. Victoria R. 
 
 I W. Co., 29 Chy. 4 49, 34,3, 
 
 (Juest ('. Hunter — Petrio r. Hunter, 2 O. R. 
 ' 233 ; affirmed S. C, 20 C. L. .1. 286 . . 
 
 I Gunn ('. Doble, 15 Chy. 0,55. followed. See 
 
 Re Morse, 8 P. R. 475 
 
 ! 15 Chy. 05.5, distinguished. 
 
 I See Johnston r. Johnston, 9 P. R. 
 
 259 
 
 .360 
 
 734 
 120 
 691 
 
 689 
 
 687 
 220 
 
 704 
 587 
 363 
 363 
 363 
 423 
 
 676 
 420 
 252 
 
 472 
 
 Hall, Ex part.s L. R. 19 Chy. D. 580, fol- 
 lowed. See The Meriden Silver Co. v. 
 Lee, 2 O. R, 451 30S 
 
 Re, .32 C. P. 498 ; affirmed S. C, 8 A. 
 
 R. 135 178. 179 
 
 r. C;aldwell, 8 U. C. L. J. 93, followed. 
 
 See Faulds v. Harper, 2 0. R. 405..., 427 
 
 Harris v. Mudie, .30 C. P. 484 ; affirmed in 
 
 part S. C, 7 A. R. 414 424, 431 
 
 Harrison r. Pinkney, 44 Q. B. 509; affirmed 
 
 8. C, 6 A. R. 225 412 
 
 Hart i: Ruttan, 23 C. P. 61.3, not followed. 
 
 See Sgott v. Mitchell, 8 P. R. 518 .... 1, 7 
 
 Harvey i\ Great Western R. W. Co. et al., 
 9 P. R. 80; affirmed, S. C, sub nom. 
 Harvey r. Gran.l Trunk R. W. Co. et 
 al, 7 A. R. 715 603, 683 
 
 Hateley v. Merchants Deapatch Co., 4 O. R. 
 
 723, in appeal 84 
 
 Hathaway v. Doig, 28 Chy. 461 ; reversed 
 
 S. C, 6A. R. 264 342 
 
XXVI. 
 
 CASES AFFIRMED, REVERSED, ETC. 
 
 PAGE. 
 
 Hedatroin v. Toronto Car Wheel Co., 31 C. 
 
 P. 475 ; adiniied S. C. , 8 A. U. <i27 .... 713 
 
 llcudcrson )'. Spencer, 8 V. li. 402, not fol- 
 lowed. (See I{c Kobertsoii and Dag- 
 ancau, I'. K. 288 776 
 
 Hendrie v. Ornnd Trunk 1{. W. Co. of Can- 
 ada, 2 O. K. 441 ; in appeal ()87, 743 
 
 V. Ncelon, 3 O. 11. 003 ; in appeal . . 758 
 
 High School Board of U. C. of Stornumt, 
 Dundas ar.d (ilengarry, and the Towji- 
 sh'p of Winchester, 45 Q. B. 4(!0 ; re- 
 vp/sed S. C, sub iioni. He Board of 
 Education of the Village of Morrisburg, 
 and the Miinioipul (,'orporation of the 
 Township of Winchester, 8 A. K. ICl). 605 
 
 Hill, Ke, L. H. 2 V. & D. 89, distinguished. 
 
 See He O'Brien, 3 O. K. 326 267 
 
 Hiiiton J'. St. Lawrence and Ottawa K. W. 
 
 Co., 1 O. li. 545; in appeal , .677, 679, 081 
 
 Ilodsoll )'. Taylor, L. 11. 9 Q. B. 79, fol- 
 lowed. Sec Ferguson /'. Veitch, 45 (j. 
 
 B. 160 728 
 
 Holland V. Hodgson, L. K. 7 C. P. 328, ap- 
 proved. See McCausland I'.jMcCalluni 
 et al., 3 O. 1{. 305 283 
 
 Horsley v. Co.\, L. R. 4 Chy. 92, followed. 
 
 See Gilchrist r. Wiley, 28 Chy. 425. ... 33 
 
 Howes I'. DouiinionFire and Marine Ins. Co., 
 
 2 O. R. 89 ; reversed S. C, 8 A. R. 644 361 
 
 Hugill V. Merrilield, 12 C. P. 264, over- 
 ruled. See Austin r. Davis, 7 A. R. 478. 753 
 
 Hurst, He, 31 Q. B. 116, commented upon. 
 
 See Re Buaty, an Insolvent, 6 A. R. 40. 59 
 
 Imperial Loan and Investment Co. v. O'Sul- 
 livan, 8 P. R. 162, followed. See Wat- 
 son V. Dowser, 28 Chy. 478 465 
 
 Ingram v. Soutten, L. K. 7 H. L. 408, ap- 
 plied. See Re Charles — Fulton r. 
 Whatmough 1 O, R. 362 803 
 
 V. Taylor. 46 Q. B. 52 ; affirmed S. 
 
 C, 7 A. R, 216 320 
 
 International Bridge Co. v. Canada Southern 
 
 R. W. Co., 28 Chy. 114 ; 7 A. R. 226 ; 
 aflii-med, S. C, 8 App. Cas. 723 387 
 
 ——^— I'. Canada Southern 
 
 K. W. Co., 7 A. R. 226, See S. C, 19 
 C. L. J. 358 71 
 
 Jackson v. Bowman, 14 Chy. 156, followed. 
 
 See Collard v. Bennett, 28 Chy. 556 . . 302 
 
 14 Chy. 156, remarked 
 
 upon, distinguished, and approved. See 
 Davidson r. Maguire, 7 A. R. 98 302 
 
 Jarrard, In re, 4 O. R. 265 ; affirmed S. C, 
 
 20 C. L. J. 145 186 
 
 Jarvis v. Great Western R. W. Co., 8 C. P. 
 280, followed. See Stevenson v. Cor- 
 poration of the City of Kingston, 31 C, 
 P. 333 43 
 
 Jellett V. Anderson et al., 27 Cl)y. 411 ; 7 
 A. R. 341 ; reversed by the Supreme 
 Court 3rd May, 1883 199, 279 
 
 Jcssup r. Grand Trunk R. W. Co., 28 Chy. 
 
 583 ; reversed S. C, 7 A. R. 128 674 
 
 7 A. R. 
 
 128, distinguished. See Clouse v. Can- 
 ada Southern R. W. Co., 4 O. R. 28. . 674 
 
 I>AOE. 
 
 Johnson v. Toronto f!rey & Bruce R. W. 
 Co., Re, 8 P. R. 535, followed. See 
 Hendrie v. Grand Trunk R. \V. of 
 Canada, 2 0. R. 441 688 
 
 Johnston i: Oliver, 3 O. R. 26 ; in appeal . . 430 
 
 Jones r. Festiiiiog R. W. Co., L. R. 3 (,». B. 
 733, applied. See Furlong i'. Carroll, 7 
 A. R. 145 281 
 
 Joyce r. Hart, 1 S. C. 1!. 321, reviewed and 
 approved. See Levi t'. Reed, 6 S. C. 
 R. 482 749 
 
 Keefer r. Keefer, 27 C. P. 257, remarked 
 upon. See Workman v. Robb, 28 Chy. 
 243 293 
 
 V. McKay, 29 Chy. 162 ; affirmed S. 
 
 C.,9 A. R. 117 801 
 
 V. Merrill, 6 A. R. 121, approved. 
 
 See McCausland c. McCallum et al., 3 
 
 O. R. 305 283 
 
 Kelly V. Macarow, 14 C. P. 457, distinguish- 
 ed. See Regina ex rcl. Clancy v. St. 
 
 Jean, 46 g. B. 77 4S1 
 
 Keough V. I'rice, 27 C. P. 409 remarked 
 upon. See DriscoU i<. Green, 8 A . R. 
 
 466 85 
 
 Kerr v. Styles, 26 Chy. 309, followed. See 
 
 Johnson v. Bennett, SI P. R. 337. 266, 3S4 
 Kilbourn v, Arnold, 27 Chy. 429 ; reversed 
 
 S. C, 6 A. R. 158 43 
 
 Kinsman v. Rouse, L. R. 17 Chy. D. 104, 
 not followed. See Faulda c. Harper, 2 
 
 O. R. 405 427 
 
 Kissock V. Jarvis, 6 C. P. 156, approved 
 i and followed. See Beaumont i\ Cramp 
 
 ! et al., 45 Q. B. 355 88 
 
 I Labatt c. Bixell, 28 Chy. 593, iollowed. 
 
 ] See Heaman v. ^eale, 29 Chy. 278 307 
 
 ' Laidlaw v. Jackes, 25 Chy. 293 ; alKrmed in 
 
 part, S. C, 27 Chy. 101 224, 430 
 
 Lang V. Kerr, 3 App. Cas. .529, followed. 
 
 See Wood v. Hurl, 28 Chy. 14(i 715 
 
 Laviu V. Lavin, 27 Chy. 567 ; affirmed S. C, 
 
 7 A. R. 197 159, 287 
 
 27 Chy.- 567, followed. See 
 
 Irwin I'. Young, 28 Chy. 511 159, 287 
 
 Lawless f. Sullivan, 3S.C. R. 117; reversed 
 S. C. , 6 App. Cas. 373 24 
 
 Lawlor v. Lawlor et al., 6 A. R. 312 ; re- 
 versed by Supreme Court 235, 459 
 
 Lee V. McMahon, 2 O. R. 654, in appeal . . 283 
 
 Leitch V. McLellan, 2 0. R. 587 ; affirmed 
 iu full court 226 
 
 Lett V. St. Lawrence and Ottawa R. W. 
 
 Co., 1 0. R. 545 ; iu appeal. . . .677, 679,681 
 
 Lewis V. Hoare, 44 L. J.N. S. 66, followed. 
 
 See I'etrie r. Hunter, 2 O. R. 233 .... 822 
 
 Lincoln Election (Ont.) Rykert c. Neelon, 
 1 H. E. C. .391, not approved. See 
 North Wentworth Election (Ont.) 
 Christie v. Stock, 1 H. E. C. 343 560 
 
 Liufoot V. Duncombe, 21 C. P. 484, remarked 
 upon. See Harvey v. Pearsall, 31 C. P. 
 239 226 
 
 Longeway v. Mitchell, 17 Chy. 190, consid- 
 ered and followed. See Campbell v. 
 Campbell, 29 Chy. 252 305, 620 
 
CASES AFFIRMED, REVERSED, ETC. 
 
 xxvn. 
 
 I'AOE. 
 
 K. W. 
 . See 
 \V. of 
 
 68S 
 
 )l,ual.. 430 
 ! Q. B. 
 noil, 7 
 281 
 
 eil ami 
 ) S. C.\ 
 74» 
 
 marked 
 IS C'hy. 
 -Id-A 
 
 I'luod S. 
 801 
 
 ^ii'ovetl. 
 Bt al, 3 
 
 28» 
 
 iiiguish- 
 V V. St. 
 481 
 
 jinarked 
 8 ^ . K. 
 85 
 
 B<1. See 
 57 . 2(i«, 3C4 
 reversed 
 43 
 
 D. 104, 
 larper, 2 
 ........ 427 
 
 approved 
 f. Cramp 
 88 
 
 killowed. 
 278 ... . 307 
 lirmed in 
 
 .224, 430 
 
 fdUovved. 
 
 :() 715 
 
 led S. C, 
 
 .159, 287 
 
 ed. See 
 ..159, 287 
 
 reversed 
 24 
 
 312; re- 
 ..235, 459 
 
 appeal . . 283 
 
 atiinued 
 226 
 
 a H. W. 
 
 677, G79,681 
 followed. 
 233 .... 822 
 
 NeeloD, 
 
 d. See 
 n (Out.) 
 
 143 500 
 
 remarked 
 
 31 O. P. 
 
 226 
 
 0, consid- 
 mpbell V. 
 .. 305,620 
 
 PAGE. 
 
 Lount /'. The Canada Farmers Ins. Co., 8 P. 
 R. 433, overruled. See Lowson v. The 
 Canada Farniers Ins. Co., 8 A. U. 613. . 374 
 
 Lovell )'. (Jibson, (J P. II. 132, commented 
 upon. See Meyers v. Kemlrick, 9 P.K. 
 303 35 
 
 Lowson r. Canada Farmers Ins. Co., 28 Chy. 
 
 525 ; reversed S. C., 6 A. K. 512. .. . 374 
 
 _ _ !» P. K. 
 
 185, reversed ; S. C. 8 A. R. 613 374 
 
 Madden r. Cox, 44 Q. B. 542; afKrmrd 3. C. 
 5 A. R. 473 143 
 
 Mafiurn i: Magurn, 3 0. R. 570 ; in appeal. . 328 
 
 Marshall v. (ireen, L. R. 1 C. P. D. 35, com- 
 mented upon and distinguished. See 
 Summers r. Cook, 28 Chy. 179 758 
 
 Martin v. McAlpine et al., 3 O. R. 499 ; re- 
 versed S. C, 8 A. K. (;75 307 
 
 Masuret r. Lansdell, 8 P. R. 57, remarked 
 upon and modified. See Phipps v. Rea- 
 mer, 8 I'. 11. 181 389 
 
 Matson v. Swift, 5 Jur. 645, followed. See 
 Re Houston — Houston v. Houston, 2 
 O. R. 84 
 
 May r. Standard Fire Ins. Co., 30 C. P. 51 ; 
 reversed S. C. , 5 A. R. 605 
 
 4G2 
 366 
 
 Mayor, Ac., of Fredericton v. The Queen, 3 
 S. C. R. 505, cited. See Regina i'. 
 Howard, 45 y. B. 346 119 
 
 Mead v. Creary, Re, 8 P. R. 374 ; reversed 
 
 in part ; S. C. 32 C. P. I 217 
 
 Mercer v. The Attorney General for the 
 Province of Ontario, 6 S. C. K. 538 ; re- 
 versed S. C.,sub nom. Attorney General 
 of Ontario r. Mercer, 8 App. Cas. 767. 121 
 
 Merchants Bank i'. Clarke, 18 Chy, 594, 
 approved. See Morton r. Nihau et al., 
 5 A. R. 20 03 
 
 Midland R. W. Co. v. Ontario Rolling Mills 
 
 Co., 2 O. R. 1 ; atlirmed in appeal 713 
 
 Mills et al. v. Kerr, 32 C. P. 68 affirmed ; 
 S. C, 7 A. R. 769 298 
 
 Minshull r. Oukes, 2 H. & N. 793, remarked 
 upon. Ste l-^nnuett t: Quiuu, 7 A. R. 
 306 408 
 
 Mitchell c. (ioodall, 44 Q. B. 398, affirmed ; 
 
 S. C, 5 A. R. 164 108 
 
 ; 44 Q. B. 398. distin- 
 guished. See Smith r. Corporation of 
 Aucaster Township, 45 Q. B. 86.. 106, 613 
 
 Moffatt ('. Board of l-xlucation of Carlton 
 Place, 26 Chy. 590 ; affirmed S. C, 6 A. 
 R. 197 663 
 
 ?;. Prentice, 6 P. H. 33, followed. 
 
 See Bank of British Jsorth America a. 
 Eddy, 9 P. R. 396 246 
 
 v. The Reliance Mutual Life Ass. 
 
 Society, 45 Q. B. 561 ; in appeal 378 
 
 Monteith r. Merchants Despatch & Trans- 
 portation Co., 1 O. 11. 47 ; affirmed S. 
 C, 9 A. R. 282 102 
 
 Moore V. Central Ontario It W. Co., 2 O. 
 
 R. 647 ; "» appeal 675 
 
 r. Connecticut Life Ins. Co. of Hart- 
 ford, 41 y. B. 197 ; 3 A. R. 230 ; re- 
 versed S. C, 6 S. C. R. 634, which 
 
 TAiJE. 
 
 last decision was allirmod, S. (A, sul) 
 nom. C(»nnecticut Life Ins. (.'o. of Hart- 
 ford ('. Moore, () App. Cas. 644. . . 505, 507 
 
 Morphy r. Wilson, 27 Chy. 1, considered 
 and followed ; See Campbell r, Camp- 
 bell, 29 Chy. 252 305, 620 
 
 Murphy r. Murphy, 25 Chy. 81, followed ; 
 
 See Ripley r. Itipley. 2.S Chy. (ilO 224 
 
 Murray, Re— PuriUiui /•. Murray, 2!) Cliy. 
 
 443, reversed ; S. C, 9 A. R. 3(i9 .... 311 
 ('. Canada Central R. W. Co., 7 A, 
 
 R. 646 ; allirnied, S. C, 8 S. C. R. 313, 
 
 special leave to appeal to Her Majesty 
 
 Council refused, b -ipp. Cas. 574. . . 645 
 Macdonald et al. v. Cronibio et al., 2 O. R. 
 
 243, atiirnied. See 20 C. L. J. 146. .. . 295 
 Mackedie r. Watt (not reported), followed ; 
 
 Heauian r. Scale, 29 Chy. 278 307 
 
 McCarthy r. Arbuckle, 31 C. P. 227 ; re- 
 
 vcrseil, S. C, 31 C. 1". 405 18, 333 
 
 McClung i: McCracken, 2 O. R. 609;alHrm- 
 
 ed, S. C. , 3 O. K. 596 717, 739 
 
 McCracken c. Creawick, 8 P. R. 501, fol- 
 
 lowetl. See In re \\ idnieyc r et al. '•. 
 
 McMahou et al., 32 C. P. 187 215 
 
 McDonald r. Field, 9 P. It. 220, overruled 
 
 by Divisional Court 6, 41 
 
 McDonald & Marsh, Re, 8 P. 
 
 R. 88, approved. See Re Civnyn, Kew 
 
 & Betts, S P. K.372 
 
 c. McKinnon, 26 Chy. 12, com- 
 mented upon. 
 32 C. P. 113. 
 
 See Parker r. Parker, 
 
 468 
 
 260 
 718 
 
 c. Murray, 2 O. U. 573, in appeal 
 
 r. Weeks, S Chy. 297, dissented 
 
 from. See Keefer r. Merrill, 6 A. R. 121 283 
 McEwan v. McLeod, 4() (j. B. 235 ; affirmed, 
 
 S. C, 9 A. R. 239 18, 102 
 
 McGee v. Campbell, 28 Chy. 308 ; reversed, 
 
 S. C„ 2 O. R. 130 58, 65 
 
 Mclutyre c. The National Ins. Co., -14 Q. B. 
 
 501 ; affirmed, S. C, 5 A. R. 5s0 369 
 
 McKay r. Crysler, 3 S. C. R. 436, distin- 
 guished. See 2selles i: White, 29 Chy. 
 
 338 05 
 
 — v. Grinley, 30 Q. B. 54, remarked 
 
 upon. See Caughill r. Clarke, 3 O. R. 
 
 2o9 
 
 74 
 
 McKenna r. Smith, 10 Chy. 40, followed. 
 
 See Heaman c. Scale, 29 Chy. 278 .... 307 
 McKeuziu v. Dwight, 2 O. R. 366; in appeal 720 
 McKenzie r. Kittridge, 24 C. P. 1 ; 27 C. 
 
 P. 65; affirmed, S. C, 4 S. C. R. 
 
 368 
 
 McLachlaii :•. Blackburn, 7 r. R. 287, dis- 
 sented from. See Myers v. Kemlrick, 
 9 P. R. 363 
 
 McLaren v. Caldwell, 6 A. R. 456; reversed, 
 S. C, 8 S. C. R. 435 ; whicli decision 
 in appeal was reversed by the Privy 
 Council, 9 App. Cas. 392, auh nom. 
 
 Caldwell r. McLaren 783 
 
 1: Canada Central R. W. Co., 32 
 
 144 
 
 35 
 
 C. P. 324 ; 8 A. R. 564, affirmed by 
 Her Majesty in Council 683 
 
 McLean v. Garland, 32 C. P. 524, in appeal 299 
 
X.WIII. 
 
 CASES AFFIHMED, EEVERSED, ETC. 
 
 VAC.E. 
 
 !MiM.'ili(in /'. Iianics, nrdrr hdok No. 9 fol. 
 T.'fO liHit ri|i(iit((1) fnlliiwtil. SueChurcli 
 '•. I'uHlt, ;{<». I!. 417 741 
 
 ML-Mastcrc. (i:iilaii(l, 31 C. I". 3'20; aftirineil. 
 
 S. ('., 8 A. R. 1 32, 87 
 
 Mc'(,iiiL-un i; I'liii'iiix Mutual Fire Jus. Co., 
 li!)('. 1*. -ill ; S. C, 4 A. H. 2S!l, hut 
 tliL' judf^nu'iit of tlie f.'ourt of Ajuieal 
 was lev.isiil, S. ('., 4 S. < '. K. (KIO 359 
 
 Nii.^niitii /■. Mniniug, fi A. K. l'J() ;a11iriui'(l, 
 
 S. C:., 5S, C. 1!. 417 134 
 
 ^'c•ill /•. Carroll, L'SChv. 30 ; aliiruicil, S. C., 
 
 'iSCliy. 3.T.I ...." 419 
 
 /•. 'rravrll.,is lus. Co.. 31 C. 1'. 394 ; 
 
 7 A. i;. r»7t): •itllrnit'd liv Su|iriiiu' ("imrt, 
 23r(l .1 iiuu, 1.SJS4 . . . ." 177; 381 
 
 — (. Cuiou .Mutual l.if.- Ins. Co., 4r.'Q. | 
 
 ]i. 593 ; adinuod, S. C., 7 A. 1!. 171 . . 378 j 
 
 Xelles r. liauU of Montreal. '2S Cliv. 449; 
 atlirniud, .s. C, 7 A. K. 743 ..." 61 
 
 Ntlli.s r. Wliitc, 29 Chy. 33S ; atlii inod l)y 
 Su]iri'nn' Court S. C., .suli noiu. White 
 r. Xeliis, 23r(l June, 1SS4 229 
 
 New Westuiiusti'r Hrewiiii; Co., ('. Haiuiali, 
 24 \V. l:. >S>,)9. followed. See McClena- 
 ghaii r. Crey, 4 (>. H. 320 110 
 
 Nicholson r. I'lioMiix Ins. (Vi., 45 Q. B. 359; 
 
 in apjieal 355 
 
 Norrig i: Meadows, 28 Chv. 3.S4 ; aflirmed 
 
 S. C., 7 A. H. 237 .. .' 722 
 
 Nortli York Kl.-ction Case, He (nom.)--Pat- 
 crson '•. .Muldidt, 32 C. P. 458, overruled 
 See .Mitchell i: Cameron, 8 S. C. K. 
 12(i 315, 5fi3 
 
 North Weutworth Kloctiou (Out.) — Christie 
 (■ Stock, 1 H. Iv C. 34'«, reversed. See 
 North (i rev Election (Out. I-Boardman 
 r. Scott, TH. E. C. 3ii2 559 
 
 O'Dohc-ty /•. Ontario Bank, 32 C. 1'. 285; 
 
 in apjieal 304 
 
 O'Donohoe /•. Whitty, 2 0. R. 424, affirmed ; 
 
 S. C, 20 C. F.. J. 14(i 39 
 
 0-den r. MeArthur, 30 Q. B. 241), distin- 
 guished. See Sanders r. Mulsburg, 1 O. 
 K. 178 325 
 
 Oliver r. Newhnuse, 32 C. P. 90, .reversed ; 
 
 S. C, S A. K, 122 410 
 
 O'Mahoney r. 15urdett, L. U. 7 H. L. 388, 
 applied See He Charles — Fulton v. 
 Whatuiough, 1 O. B. 3G2 803 
 
 Ontario Industrial Loan and Investment Co. 
 ('. Lindsey et al., 4 O. B. 473 ; varied 
 S. C, 3 O. H. tiG 48, 697 
 
 Orr ('. Orr, 21 Chy. 397. eoniniented upon. 
 
 See Parker r. Parker, 32 C. P. 113. .. . 260 
 
 Osborne r. Preston and Berlin B. W. Co., 
 9 U. P. 241, commented upon. See 
 Montreal Citv and District Savings 
 Bank c. County of Perth, 32 C. P. 18. 199,615 
 
 Osier r. Toronto, Orey and Bruce B. \V. Co., 
 8 P. B. 506, followed. See Heudrie i\ 
 Grand Trunk K. W. Co. of Canada, 2 
 O. R. 441 688 
 
 Ottawa Co. !•. Liverpool Ins. Co. 28 Q. B. 
 222, approved. See Oill v. Canada Fire 
 and Marine Ins. Co., 1 O. R. 341. .. . 360 
 
 rAOE. 
 
 Page /•. Austin, 30 C. P. 108 ; reversed 
 S. C, 7 A. B. 1, which judgment in 
 a])peal w;i.s affirmed l)y the Supreme 
 Court, 20 C. L. J. 247 135 
 
 Pardee r. Llovd, 26 Chy. 375, rever.scil ; S. 
 
 C, 5 A. il. 1 19 
 
 Parke c. Day. 24 C. P. 619, commented on. 
 See Forrester v, Thrasher, 9 P. R. 383 ; 
 2 0. B. .38 65 
 
 Parkes r. St. (Jeorge, 2 O. B.342; in ap- 
 
 l.eal 90 
 
 Parkhurst >: Bov, 27 (."hy. 361 ; alfirmedS. 
 C, 7 A. II. 614 810 
 
 Parsons r. Citizens Ins. Co., 7 App. Cas. 96 
 followed. See Devlin r. Queen Ins. Co., 
 46 Q. H. 611 611 
 
 r. Standanl Ins. Co., 5 S. C. B. 233 
 
 followed. See Lowson i\ Canada Far- 
 mers' .Mutual Fire Ins. Co., 6 A. B. 512 374 
 
 • )". Standard Fire Ins. Co., 4 A. B. 
 
 326 ; alfirnied S. C., 5 S. C. B. 233 . . 360 
 
 Patterson r. Smith, 42 Q. B. 1, remarked 
 upon. See Pyatt *'. McKee, 3 O. R. 
 151 414 
 
 i\ Thompson, 4(5 Q. B. 7 ; reversed 
 
 S. C, 9 A. B. 320 210 
 
 Peek et al. r. ShieMs, 31 C. P. 112 ; 6 A. R. 
 
 639 ; .attirmed S. C, 8 S. C. B. 579. .63, lis 
 
 Perth, Be. 39 Q. B. 34, cited. See Be Board 
 of Education of Morrisburg and the 
 Townsliii) of Winchester 664 
 
 Petrie r. Hunter— Guest c. Hunter, 2 O. R. 
 
 233, idhrmcd ; S. C, 20 C. L. J. 286. . 420 
 
 Phipps. Re. I O. R. 586 ; atlirmed S. C, 8 
 
 A. B. 77 186 
 
 Pierce r. Canavan, 28 Chy. 356 ; affirmed 
 
 S. C, 7 A. B. 187 460 
 
 Pini ('. The Municip.al Council of Ontario, 9 
 C. P. 304. remarkeil upon. See Silsby 
 V. Corporation of the Village of Dunn- 
 ville, 8 A. B. 524 149 
 
 Piatt r. Ashbridge, 12 Chy 105, followed. 
 
 See Trinity College n. Hill, 2 O. R. 348 471 
 
 Plumb ('. Steinhoir, 2 O. R. 614 ; in appeal. . 332 
 
 Point Edward (Village of) and the Township 
 of Sarnia, In re, 44 Q. B. 461, distin- 
 guished. See Re Township of Sarnia 
 and the Town of Sarnia, 10. B. 411 . . 495 
 
 Powell r. Peck, 26 Chy. 322 ; reversed S. C, 
 
 8 A. B. 498 587 
 
 Provincial Ins. Co. r. Cameron, 31 C. P. 
 
 523; atlirmed S. C, sub' ..i. Provin- 
 cial Ins. Co. V. Worts, 9 A. R. 56.. 7, 137 
 
 Queen Ins. Co. r. Parsons, 4 S. C. B. 215 ; 
 
 reversed S. C, 7 App. Caa. 96. . . .115, 363 
 
 Quinlan r. Gordon, 20 Chy. Appx. 1, fol- 
 lowed. See Hutton i\ Federal Bank, 
 
 9 P. B. 568 386 
 
 r. Union Fire Ins. Co., 31 C. P. 618; 
 
 reversed S. C, 8 A. R. 376 357 
 
 Quinton v. Frith, Jr. 2 Eip 415, considered 
 
 and not followed. See In re Taylor, 28 
 
 Chy. 640 429 
 
 Regina r. AUbright, 9 P. R. 25, overniled. 
 
 See Regina v. Hodge, 9 App. Cas. 
 
 117 .... 120,332,754 
 
CASES AFFIIOIKD, UKN'ICUSED, 1>:T0. 
 
 XXIX. 
 
 PAGE. 
 
 erst'fl 
 lit in 
 ii-einu 
 135 
 
 I; S. 
 19 
 
 (1 (in. 
 3H.3 ; 
 65 
 
 in aii- 
 90 
 
 iiedS. 
 810 
 
 'as. 96 
 i. Co., 
 Gil 
 
 R. -233 
 a Far- 
 W. ,')12 374 
 
 A. R. 
 
 J33 .. 31)0 
 
 a;irked 
 O. R. 
 414 
 
 iversed 
 210 
 
 f, A. R. 
 
 79 .63, lis 
 
 nd the 
 664 
 
 2 (). R. 
 
 L 286.. 420 
 
 S. C, 8 
 186 
 
 affirmed 
 
 ... 460 
 
 itario, 9 
 
 Silsby 
 
 Dunn- 
 
 .... 149 
 llowed. 
 
 R. 348 471 
 piieal.. 332 
 iwnship 
 
 distiu- 
 
 Sariiia 
 H. 411.. 495 
 
 ,d S. C, 
 587 
 
 1 C. P. 
 
 Provin- 
 
 56.. 7, 137 
 R. 215 ; 
 
 ...115, 363 
 
 1, fol- 
 1 Bank, 
 386 
 
 P. 618 ; 
 
 357 
 
 isidered 
 ylor, 28 
 ' 429 
 
 erruled. 
 p. Caa. 
 120, 332, 754 
 
 ReL'ina i: Rulk-aii, 7 S. C. It. 53 ; leveised 
 
 S. C, 7 App. Cas. 473 121 
 
 >: IViiKlier, 8 P. R. 20 ; atliniiod S. 
 
 C, 4 A. i;. 191 187, 402 
 
 i: r.i(i\\no,31 C. P. 484; allinufd 
 
 r.ViiE. P.ViiE. 
 
 RussoU '•. Tlio (,)uecii, 7 App. <'as. 829, ex- 
 plained ami appniVfil. Sni; lioilge r. 
 
 Thu guoun, 9 App. Cas. 117 120 
 
 Ryan r. Ryan, 29 C. P. 449 ; nnui-.-itKl S. 
 C, 4 A. 11. .")()3, which ili'iisimi in ap- 
 pial was luvurriud liy Siipri'iiii.' ( 'ourt, 
 
 5 S. C. R. 387 429 
 
 1 A. 
 !>. "(45, t'lillowod. Sou Klfiii I't al. r. Tlie 
 lliiidii V'm: Ins. Co. utal., 3 (). R. 234. . 371 
 Sands i\ 
 QiiVeu, 9 App. ('as. 117 ° 120, .'WJ, 754 \ atliinif.l S. C, 27 Cby. 1()7 ...... . .358,366 
 
 S. C, (i A. R. 386 3, 276 
 
 — c. It()utre,6 8. C.,R. 342, aflinnudhy n- ^ ■ ^ m ^ i t ,. 
 Her Majesty in Council Kil. 596 Saino )•._<, ore District .Mntnalli.s. ( 
 
 — i\ Frawley, 46 Q. B. 153 ; revcrst'<l 
 S. C, 7 A. R, 246, whicii (kcisiim in <, , i i c .->,- r n n- 
 a].pcalwas af}iriiicd l>y llo.lgc --. 'I'hc ; San.ls c. standard In:?. Co., 2() C iiy. llo 
 
 — r. Hodgo, 46 Q. B. 141, reversed .S. 
 C, 7 A. R. 24(), which decision ill appeal | 
 was atiiinied, sulj noni. Hodge ''. The | 
 yuecii, 9 App. Cas. 117 120 | 
 
 ,-. Levecipie, 30 Q. B. 509, distin- : 
 
 giii.shed. See Regiua r. Wehlan, 45 Q. \ 
 
 B. 396 "■'" 
 
 — i\ Pipe, 1 O. R. 43, overriilc<l in part. 
 See Hodge ii. Tlie Queen, 9 App. Cas. 
 117 120, 3.32 
 
 c. Williams, 19 (,). B. 397. f.dh.wed 
 
 Sayles r. Brown, 28 Chy. 10, followed. See 
 
 Soniiucrvillu c. Rao. 28 Cliy. 618 .201, 294 
 Saylor ''. Cooper, 2 (>. R. 3!»S ; ■> dinned 
 
 S. C, 8 A. R. 707 787 
 
 Schihshy r. We.steiiholtz, L R. 6 (,). II. 1,")5; 
 followed. See Beaty /». Croiiiwell, 9 
 
 P. R. 547 398 
 
 Scliliehauf v. Canada Soutliurii R. W. Co., 
 28 Cliy. 23(i, distinguished. .See ( 'louse 
 r. Canada Southern R. W. Co.,4 0. R. 
 
 28 674 
 
 See Attorney-General r. Midland R. \V. I <.;y,jtt ,. B„,.,iliaiii, 3 Chy. Chan.;.. 402. fol- 
 
 Co. , 3 O. R. ;)11 (),2 , i,,„.yj s^y Wriglit r. Wav, 8 P. R. 
 
 42 g. B. 4(i2, followed. I :{28 '. ". 643 
 
 .See Regiua r. Howard, 45 Q. B. 34(i .. 753 .si,.j„iy ,, (-;,.,„„i Ju„e'tioii R. W. Co., 4 0. 
 
 — e.\ rel. Brine r. liootli, 9 P. R. 452 ; R, 156, in appeal 449 
 
 aflirnied, S. C, 3 O. K. 144 . .480, 481, l^-i^ sha^.^, ,,. Unvt, 31 Q. R im, followed. Sec 
 
 l.'e Morse, 8 P. R. 475 235, 321 
 
 Shelley *'. (ioriiig, 8 P. R. 'Ml, cited. See 
 
 Godfrey c. Harrison, 8 1'. R. 272 326 
 
 Shcphordson v. MeCuilongh, 46 Q. B. .57.3, 
 remarked upon and approved. See 
 Harris i'. Mudie, 7 A. R. 414 424 
 
 Silshy I'. Tlie Corporation of the Village of 
 Dunnville, 31 C. P. .301 ; atliriued, .S. 
 C, 8 A. R. 524 148 
 
 Silvertliorn r. lluiitir, 26 Chy. 390;ailirin- 
 
 ed .S. C, 5 A. R. 157 774 
 
 5 A. R. 1,')7, distiu- 
 
 ex rel Grant v. Coleman — Regiua ex 
 
 rel. Dwyre r. Lewis, 8 P. R. 497 ; alHriii- 
 
 ed IS. C., sul) nom. IJeL'iiia ex rel. 
 
 O'lJwyer v. Lewis 32 C. P.104 482 
 
 ex rel. Grant c. Coleman- Regiua ex 
 
 rel. Iiwyre r. Lewis, 8 1'. I{. 497; 
 
 attirnicd, ,S. C. , 46 Q. B. 175 ; 7 A. R. 
 
 619 
 
 — ex rel. Linton v. .lackson, 2 Chy. R. 
 
 18, dissent' jil from. See Regiua ex rel. 
 
 Clancy ' . Mcintosh, 46 Q. H. 98 
 
 ex vd. -McMillan r. IJel.isle, 8 U. C. 
 
 L. .1 290, followed. .See Regiua ex rel. 
 
 483 
 
 483 
 
 Brine i\ Booth, 9 P. R. 4.-)2 . . 
 
 — ex rel. White i'. Roacli, 18Q. B. 226, 
 distinguished. See Regiua ex rel. 
 
 48i 
 
 guislied. See Hamilton ProvicU'ut and 
 Loan Society /•. Bell, 29 Chy. 203 774 
 
 Sinclair r. Rohsoii, U! i). B. 211, remarked 
 upon. See Edgar i: Magee, 1 O. R. 
 
 287 78, 4.38 
 
 Smith I'. G oldie, 7 A. R. 628, alliriued in 
 
 .Supreme Court 586 
 
 v. Merchants' liauk, 28 Chy. 629; re- 
 versed .S. ('., 8 A. R. 15, hut the decision 
 of the Court of Appeal was reversed ; 
 
 S. C, 8 S. C. R. 512 83 
 
 Sowden I'. Standard Fire Ins. Co., 44 Q. ]i. 
 
 95 ; atliriued S. C, 5 A. 11. 290 3.56 
 
 Spall'oid r. Huhhell, R. & .T. Dig. col. 1517, 
 explained. See Buist c. .Nlcl.'onilie et 
 
 al, 8 A. R. 598 213 
 
 Springticld Fire lus. Co. r. Allen, 43 >'. Y. 
 .387, distiuguisiie.l. See Klein et al. c. 
 Tiie Union Fire Ins. Co. et al., 3 O. R. 
 
 234 371 
 
 I Stafl'ord (Township of) c. Bell, 31 C. P. 77 ; 
 
 j reversed S. C, (J A. R. 273 497, 752 
 
 See Runiohr v. Marx, 3 <>. R. 167 1 11,265 | stammers r. 0-D.moh,.e, 28 Chy. 207; 
 Russell ('. Canada Life Ass. t?o., 32 C. P. I 8 A. R. Kil, athriued in Supreme 
 
 256 ; afliimed S. C, 8 A. R. 716 . .ifj'-i, 611 ] Court 20 C. L. J. 260 50, 717, 740 
 
 Clancy v. St. Jean, 46 Q. B. 77 481 
 
 Ri(ker r. Ricker, 27 Chy. 576; reversed I 
 
 S. C, 7 A. R. 282 772! 
 
 Robins r. Victoria Mutu.al Fire Ins. Co., 31 I 
 
 C. P. 502; atliriued S. C, 6 A. R. 427 368 I 
 Robson i: Arbuthnot, 3 P. R. 313, distin- j 
 
 guished. See McDonough r. Alison, | 
 
 9 P. R. 4 632,764 
 
 Roche ('. Jordan, 20 Chy. 573, fidlowed. 
 
 See McLean r. Bruce, 29 Chy. 507. .305, 624 
 Rosenberger i\ Grand Trunk R. \V. Co., ,32 
 
 O. P. 349 ; 8 A. R. 482, atiirmed in 
 
 .Supreme Court 679 
 
 Ross Instate, Re, 8 P. R. 86 ; reversed S. 
 C, 5 A. R. 82 249 
 
 c. McLay, 25 C. P. 190, overruled in 
 
 jiart. See Macnaniara r. McLay, 8 A. 
 
 R. 319 699 
 
 V. Simpson, 23 Chy. 552, distinguished 
 
^m^ 
 
 XXX. 
 
 CASKS AFFIHMKD, HKVKKSKr, KTC. 
 
 l'A(ir.. ' PAGE. 
 Stimclly r. I'crrv, 23('liy. t\C>~ ; reversed S. Werderinan r. Sdciete Geiieral <rKluctrii;ite, 
 •- ■ . ,yj ^ j^ j,j ^,j^^, ^^ 24(;, (listinguislied. 
 
 Sie McClenaghan i: Orey, 4 O. l{. 32<J. 110 
 West Unroll Kleutioii, In re (l>oiu.) — 
 40 M'.ti'lK'll '■. Cameron, 1 (». II. ■i'Mi ; re- 
 versed S. ('., 8 S. C. H. l-2(> 315, 563 
 
 Western Assurance Co. >'. Provincial Ins. 
 
 C. 2 A. i;. 1!I7 : 3 S. C. I!, .-{.'".(i 
 St. Anl>yn /•. Smart. L. K. 3 Cliy. f)4(i, dis- 
 
 tinj,'iii.slu-d. Sec ]{(! .McCnnghev & 
 AValsb, Solicitors, 3 O. I!. 42.'), 
 
 St. Mi.'li.icrsCollcL'c '•. M.^iTick.l A. n. 520; 
 2i; Cliv. L'Ki. followed. Sec (lilclirist r. 
 Wiley, 2S ( 'liy. 42.") 33 
 
 Stciiliciisoii r. Bain, S 1'. I>. l(!l! ; reversed 
 S. ( '. , ,S !'. H. 2,").S 280, 727 
 
 Synod '". l)cl?]Hi|nierc, 27 Cliy. ^>^n ; affirni- 
 
 Co., 2(; ('by. 5(!1 ; affirnicii S. C., 5 A. 
 
 H. 100 353 
 
 Canada Loan and Savings Co. '". 
 
 Dunn, !1 1». H. 409; reversed S. C, 
 
 I'. 11.587 2.30, 33(> 
 
 ,.dona,.,.c.al. .30.),me. l^'^O ...... 1 10, 463 ; ^y^.^j,,,;,,^^^,, , ,,,^^_ , ^yy^ ^ „ ,,,,_ f,,,. 
 
 T.ivlor. I!c, 8 I'. K. 207 ; revers.Ml S. C, 28 
 
 ( 'liy. (140 429 
 
 Tliomas >•. Hall, 'i P. It. 172, coimiientcd on 
 Si'i' Forrester/'. Tliraslier, I'. R. 383 ; 
 2(). It. .38 65 
 
 Thomson r. Torrance, 2SCliv. 2.")3 ; ntlirnKMl 
 
 S. C., A. H. 1 795, 814 
 
 Totten i: W.-itson, 17 Cliy. 235 ; followed 
 See Itc Houston — Houston v. Houston, 
 2 (». It. 84 4(52 
 
 Tiiuitv College r. Hill, 2 (>. It. 348; revers- 
 ed S. ('., 20 C. L. .1. 202 471 
 
 'J'rust and Loan Co. r. Lawrasoii et al., 45 
 Q. n. 17() : reversed S. C. () A. H. 28(», 
 Mliicli judgment in appeal w;is atHrmcd 
 liy Supreme Court 212, .301 
 
 Turlev r. Benedict, 31 C. I'. 417 : reversed 
 
 S. C, 7 A. ]{. 300 229 
 
 Turner r. I.ucas, 1 O. ]\, ()23 : afliniied by 
 
 Court of Appeal .307 
 
 V. Smitli, 2(i Cliy. 108, considered 
 
 and followed. See Cainpl>ell r. t'amit- 
 bell. 20 ( 'liy. 2,52 305, 620 
 
 Union Kirc Ins. Co. i'. Fitzsiinnions et al. , 
 :-!2 C. P. 002. followed. See Union Fire 
 III". Co. r. O'daia, 4 (). It. 350 136 
 
 Valiii /'. Liinglois, 3 S. C. H. 1, leave to aii- 
 
 lie.al refused, .^cc 5 .App. Cas. 115. . . . 117 
 
 V.uiXorman r. He;iu|ire, 5 ( 'liv. .500, cittMl. 
 
 See Loughe.adc. Stulib.s, 27Cliy..3S7 .227, 740 
 
 r. (I rant 27 Cliv. 40S. followed. 
 
 .'•-. • ■ ^\>'.,<\ r. Hurl, 28 i 'hy. Uti 745 
 
 \ 't -V r. Vansickle et al., 1 (). ]{. 
 
 lowed. See Welland Election (Unt.) — 
 
 Beatty i\ Currie, 1 H. E. C. 47 529 
 
 — Beal r. Sniitli, L. K. 4 
 
 ■rie.l S. C, <» A. It. 3.V2 
 
 796 
 
 , p.' , 
 • ft;. ,.. 
 
 n!. ('. Hiiglison, 45 (.). B. 2.52; 
 
 ■ s. 0. 9 A. K. .300 2.M, 431 
 
 \''.f; ■ '.!,, I Trunk 11. \V. Co., 2 (>. It. 
 
 I'j; ; a::ii um\ 20 C. L. .1. 317 685 
 
 Walker v. Hvinan. 1 A. It. 345. followed. 
 
 See McIJoiialil r. Forrestal. 20 Cliy. .300 714 
 Walton et u.k. ?•. Corpor.itiiui of the County 
 
 of York, .30 C. P. 217 ; reversed S. C. 
 
 « A. It. 181 789 
 
 ■Watson r. Linds.v, 27 Chv. 253 ; affirmed 
 
 ,S. C, 6 A. It. 609 426, 456 
 
 C. P. 145 followed. See West Elgin 
 Election (Out.) — Cascade!! c. Munroe, 1 
 
 H. E. <'. 223 566 
 
 White r. Briggs, 15 Sim. 17 ; S. C, 2 Phil. 
 583, ilistiniiuished. See Clow r. (.'low, 
 •iO. It. .355 799 
 
 ■ r. Township of Gosfield, 2 0. K. 287 ; 
 
 in apiical 445 
 
 Wig.in C.1S0, 1 O'iM. & H. 102, adopted. 
 See East Toi'onto Electicni (Out.) — Ken- 
 nick i: Cameron, 1 H. E. C. 70 542 
 
 AVilli.iuis c. Coi-hy, 5 A. H. (!2() ; I'eversed 
 ,S. C., gull iioni. Corby et al. r. Wil- 
 liams, 7 S. C. K. 470 112 
 
 — He, 7 p. 1! . 275, approved. .See 
 
 Kcgina r. Browne, 31 C. P. 484 277 
 
 Wilson r. Standard File Ins. Co., 20 ('. I'. 
 308 followed and approved. See May 
 r. Standard F'ii-e Ins. Co., 5 A. K. 
 605 36(5 
 
 Workman /•. Bobb, 28 Chy. 243 ; affii-ined 
 
 S. C, 7 A. n. 380 203, 425 
 
 Wright )'. Lonilon Life Ass. Co., 20 C. P. 
 221 ; 5 A. R. 218 ; affii-med S. C, sub 
 nom. London Life Ins. Co. r. Wi-ight, 
 5 S. C. K. 466 149, 380 
 
 r. Incoriioratcd Synod of the Diocese 
 
 of Huron, 29 Chy. 348 ; reversed S. 
 C, 9 A. R. 41 1 108, 145, 143 
 
 Xeiios I'. Wickham, L. R. 2 H. L. 306, dis- 
 tinguished. .See Western Assurance 
 Co. r. Pi-ovinei.al Ins. Co., 5 A. It. 190. 3,53 
 
 Yannoutli (Corpoi-atiou of) v. Siinnions, L. 
 K. 10 Chy. 1). 518, followed. See 
 Standly et al. v. Pei-ry. 3 S. C. I{. 
 .3.j() .' 781 
 
 York (County of) v. Toronto Oi'avel Road 
 and Concrete Co., 3 O. R. 584 ; in ap- 
 peal 129 
 
 Young r. Christie, 7 Chv. 312, followed. 
 
 .See Labatt r. Bixel, 28 Chy. 593 307 
 
 — 7 Chy. 312, followed. 
 
 See Heaman c. Scale, 29 Chy. 278 307 
 
•m 
 
 277 
 3fiti 
 
 ABBRI<:yiAT[ONS. 
 
 A. J. Act Adiiiiiiistration of Justice Act 
 
 'Jj'''/''^ -M>P'^''' C"«f«, House of Lords and Privy Council. 
 
 ^' " f'oiiiiiion Pleas Kcj)oits. 
 
 ^- ''• '* Oonunon Pleas Division. 
 
 ^- ^ -^ Canada Law Journal. 
 
 ^•^•*' Consolidated Statutes of Canada. 
 
 ^f ^' ^- ^ Consolidated Statutes of Upper Canada. 
 
 ^"'3' Clianoery Reports. 
 
 ^V •> Clianoery Division. 
 
 l,^''"' ""•" Dominion of Canada. 
 
 ^'" *^:7, General Orders of the Court of Chancery. 
 
 "• ^^- ^ Hodgins' Election Cases. 
 
 ■^"'1' Imperial Statutes. 
 
 ^•"^■^>"^ Province of Ontario. 
 
 ^- ^J Ontario Reports. 
 
 -^- ^J Practice Kej)orts. 
 
 J5' JJ- Queen's IJench Reports. 
 
 ^■^- ^^- ••; Queen's Reach Division. 
 
 R. <.V. J. Dig Robinson & Joseph's Digest. 
 
 ^' ^' Rules of Court. 
 
 ■ '/ *^ Revised Statutes of Ontario. 
 
 '-• ^ Same Case. 
 
 S C P 
 
 '; ; Supreme Court Re|.orts. 
 
 • ^- "^ Upper Canada Law Journal. 
 
ADDENDA ET CORRIGENDA. 
 
 Coluiiiii. 
 
 
 
 
 
 
 
 
 35-10 
 
 lillL'S 
 
 from bottom, 
 
 for 359 
 
 rciul 
 
 309. 
 
 
 
 40- 8 
 
 
 (( 
 
 " 1). 447 
 
 (1 
 
 1). 47 . 
 
 
 
 71— '24 
 
 
 (fc 
 
 " 1). 97 
 
 u 
 
 p. 7(i5. 
 
 
 
 '28 
 
 
 ( t 
 
 •20 C. L. J. 
 
 n 
 
 19 C. 
 
 L. 
 
 J. 
 
 108-10 
 
 
 from top, 
 
 43 Q. B. 
 
 41 
 
 44 (J. 
 
 B. 
 
 
 4(> 
 
 
 k( 
 
 " not reportftl 
 
 1 1 
 
 2 0. 
 
 K. 
 
 5G0, 
 
 165— 6 
 
 
 (( 
 
 " 50() 
 
 (( 
 
 500. 
 
 
 
 203— at foot of coluimi, add See Jt//t'« v. Amhrson, 8 P. 11. 387, p. G40. 
 
 265— after 5tli line ad.l, See Wood v. Hurl, 28 Chy. 140, p. 745. 
 
 '273—18 lines from top, for 739 read 039. 
 
 295— '29 
 
 364—43 
 
 384—25 
 
 4*23-17 
 
 624— '20 
 
 from bottom, " 
 
 A. 11. 
 
 
 7 A. R. 
 
 8. C. U. 87 
 
 
 A. B. 87 
 
 57 
 
 
 570. 
 
 39 Q. B. 
 
 
 19 Q. B, 
 
 148 
 
 
 648, 
 
 For Cases now hi Apinal and ivhkh have been reported in Appeal, 
 See " Talili: of Caxes, Affirmed, Biixrsed," dr. 
 
DIGEST 
 
 or 
 
 THE REPOllTED CASES 
 
 IN 
 
 THE SUPERIOR COURTS OF ONTARIO, 
 
 AND 
 
 THE SUPREME COURT OF CANADA, 
 
 CONTAINED IN VOLUMEH 
 
 45-46 QUEEN'S BEXCH. 27-29 CHANCERY. 14 ONTARIO REPORTS. 
 
 31-32 COMMON i'LEAS. 5- 8 APPEAL REPORTS. 8-9 PRACTICE REPORTS. 
 
 3-7 SUPREME COURT IIEPOIITS. 1 HODUINS'S ELECTION CASES. 
 
 J. 
 
 5G0. 
 . G40. 
 
 al, 
 
 ABANDONMENT. 
 I. Of Execction — See Exkcltion. 
 II. Of Ships— 5«« Insurance. 
 
 ABATEMENT. 
 
 I. Pleas in— .See Pleading. 
 
 II. Of SviTs—See Practice. 
 
 III. Of Purchase Mon ey on Sale of Land — 
 See Sale of Land by Order of the 
 Court — Specific Pekfokmance. 
 
 ABSCONDING DEBTOR. 
 I. Attachment, I. 
 II. Service on— 5ee Practice. 
 
 I. Attachment. 
 
 The affidavits upon which the order for a writ 
 of attachment against an absconding debtor was 
 issued were not styled in any court, although 
 Bworn before a commissioner for taking affidavits 
 in the Q. B. , who appended to his signature the 
 ■words, "A Com. in B. R.," kc. :— Held, that 
 the affidavits were sufficient. EUerby v. Walton, 
 2 P. R. 147, followed : Hart v. Ruttan, 23 C. P. 
 613, not followed. Scott v. Mitchell, 8 P. R. 518. 
 • — Armour. 
 
 If a creditor has reasonable grounds for infer- 
 ring his debtor's intention to defraud his credi- 
 tors, a writ of attachment will not be setaside. lb. 
 
 In an action at the suit of the Crown, an order 
 was made for a writ of attachment against de- 
 fendant as an absconding debtor. Service ot the 
 writ was accepted by his attorney, who entered 
 an appearance to the writ : — Held, that this was 
 
 useless proceeding, and that the defendant 
 
 should have put in special 
 Sttwart, 8 P. R. 297.— Osier. 
 
 bail. Retjhia v. 
 
 Held, that the affidavit of debt, which in this 
 case was made by the County Crown attorney, 
 was sufficient. Ih. 
 
 Held, that the forfeiture of a recognizance to 
 appear was a deltt sufficient to support the ap- 
 plication for an attachment luidor the Abscond- 
 ing Debtors' Act, and that such writ may be 
 granted at tlie suit of the Crown, where the de- 
 fendant absconds to avoid being arrested for a 
 felony, lb. 
 
 Held, that the amount for which special bail 
 is to be put in need not be mentioned iu the order 
 for the writ. lb. 
 
 On an application to set aside the writ : — Held, 
 that any defect in the materials on which it was 
 granted, might be supplied by the affidavits used 
 on such application. Held, also, that defendant 
 was precluded by having accepted service of the 
 writ, with knowledge of certain alleged irregu- 
 larities, and delayed moving until after the time 
 for pleading had expired, lb. 
 
 Held, that the object of seo. 20 of the Ab- 
 sconding Debtors' Act is to save harmless the 
 bona iiilo attaching creditor, whose writ has had 
 the effect of saving and protecting the debtor's 
 property for the execution creditor. In this case 
 there was a fund, not exigible under the execu- 
 tion, to which the attaching creditors alone were 
 entitled, and several attachments, of which the 
 
» 
 
 ACTION AND SUIT 
 
 |)l.'iiiitifr'H was tliinl in time, and th(s \\ linli' jirn- 1 
 pcrtyliiid l)(!(;n Htii/iMl and hcjM or rLtniiicil iindur 
 tli<; tifHt writ. 'I'lic iij.iiiititl", witlmut disilnsinj^ 
 tlKiwc fiK'tH, (ilitiiincd nil (Hill r iiiiiirr i]\v nlmvo 
 HCi'. 'JO, tli'd all rij.itN lit Ills .'ittarlinuiit mIkiIiIiI 
 111! Jiaiii iHit i>l tlic dciitiilH iisHits lirl'urr tlif fX(!- 
 I'Utidii, !iiid urjilt'i- it taxid lii.s wimlf custn of 
 Biiit. The onk'T was sit aHidn, fur liad tiii^ fui'tw 
 licfii diHcloHcd it hIiiiuIiI not have hiiii niadi', and 
 ill any fvi'nt only tho coMtH of hiiIiij,' out iind cxo- 
 cutiiif,' the attachniint wuri' taxahh'. 'I'hf appli- 
 catioii to Bt-'t asidi! sindi oril<'r \\:\n in Id not to lie 
 iin aii[)ual. llmj/uH v. I'ttltl, !l 1'. I!. I'J7. — 
 Ooler. 
 
 ACCUKTIO.N, 
 
 .SVe \Vati:ii and Watiii < 'oiitsKs. 
 
 AUSTHACT OF TITId:. 
 
 Hen (^i iKiiMi 'J'ni.Ks- ICkuistuv TiAWs. 
 
 ArKN(3\VI,KI)(!Mi:NT OK TITFJ:. 
 
 .SVc I.IMI'l A'llilN Ol' A<"l'roN.S ANIJ St'lTS. 
 
 ac(m:ii:s('kx('k. 
 
 See K.HTOi'i'Ki,, 
 
 accf:.s.soiiy. 
 
 An acccsRory hefuro tliu faitt in liahlo to extra- 
 dition, but an acL'ossiiry afti r tin: fart in imt. 
 liejiinu V. liiviviii', ti A. J{. 3.St) ; ;tl f. I'. 484. 
 
 Of hiiHhand in diHixisal of wife's c,'\rninf,'s. 
 Sl'i- (.'(irrnl/ v. Fit^ijtvulil, C A, !!. \Y.\. 
 
 Of infant in lontract made during' ininority. 
 Si'u i'ldi'ii V. Cditiuhi I't-nintiK III l.oiiii A- Sdi'iinj.i 
 Co., 4()". It., ••]«. 
 
 Of f'iir])orationH. Sco Lii/ v. .9^ Lninrnrf .(■ 
 (itliiim li. \y. Cn., I O. If. r)15; CnrjinniHini <//' 
 the Tiiini.i/iip fi/' I'riiibroh' V. Caiuida Ceutraf li. 
 \V. Ci,., ao. k. 503. 
 
 ACCIOKNT. 
 
 I. Nl'.fil.KlKNCE -See. NEcH.IOENi'K. 
 II. 1X.SIUA.N0E AOAl.SST— .SVe J.NSfKANCK. 
 
 ACCOM PLICK. 
 
 See AccKssoRV. 
 
 ACCORD AND SATISFACTION. 
 
 See (ItAHANTKfc: AM> ! Mil MN ITV — MollTU A(;K. 
 
 Held, that tlic evidence in this oaae wan not 
 suliicieiit to estalilish an allegation of aecord and 
 satisfaction. Seo Wthlon v. \'au(jhan tt al., T) 
 S. C. K. 35. 
 
 ACT OF PARLIAMENT. 
 
 iSVe C/'dxstitl'tionai, Law— Si'-vrt'TES. 
 
 ACCOUNT. 
 L Accorsr.s befork the Ma.^tkh. 
 
 1. Oenerdlly — .See. Pkaltice. 
 
 2. Mortijwje Suits — See Moino AfiK. 
 
 IL ExECuroKS and Ahmini.sthatokh' Ac- 
 coi'NT.s — See. Exeoutoks and Ad.mi.s- 
 istkators. 
 
 Right of agent to an account of the transac- 
 tions of the |irinci|ial and an inspeution of liuoka, 
 notwithstanding R. S. O. c. 132, s, 3. See 
 liuijers V. nimanu, 27 Chy, 137. 
 
 Alteration of account.s — Criminal liability. 
 See In re Hall, 9 P. R. 373 ; 8 A. R. 31. 
 
 ACTION A.Nl) SUIT. 
 L Notice ok Action, 4. 
 II. Cathe of Action, o. 
 III. Mi.scEi.i.ANEors Cases, T). 
 lA'. By and 'AOAiy.HT Particular Persons. 
 
 1. Ill/ Ai>Hi(pire, iif Cfitme, in Aetio7i — .Sei' 
 
 Ciiosi; IN Action. 
 
 2. Ill/ (tiiil ofjninKt other Persons— See 
 
 Thk .sevehal Titles. 
 
 V. In.icnction to Restk.vin— .S'ce Ln.ii'Nc- 
 
 TION. 
 
 VI. Release of — See Release. 
 
 I. Notice OF Action. 
 
 Sec. 231 of the DiviHion '"'nurts Act, It. S. O. 
 c. 47, eiiactH that anj' action or iiroHecutimi 
 agaiimt any jiersim for any thing done in pur- 
 .suancc of the Act nhall be coinnienccd within six 
 inoiiths after the fact w;is coininitted, &c., and 
 notice in writiiigof hucIi action, and of the cause 
 thereof, .'^h.dl be given to the defendant iiiic 
 inontli at le.iHt before the coinincHceinent of tin; 
 action :--l!eld, that ]ier.sonal advice was nut 
 reijuired, but that service on the wife at tin' 
 del'eiidant'.s residence was sutlicicnt. llanihi v. 
 Jiihnstiin, 3 0. R., C. P. D. 100. 
 
 Held, that the court in whiih tlie action is to be 
 brought need not lie stated in the notice ; but 
 oven if reijuired, Sendilc, that the statement in 
 the notice that the action would be brought in tlii; 
 
J 
 
 ADMINISTIiATOR. 
 
 Ilij,'li (Niiirt of .fiistic'c, witliimt niuiiiiif,' tliii yiir- 
 tiiMil;ir (livJHioii, wan sudicioiit. //(. 
 
 llt.'lil, that in (•(iiiiiiutiii^' tlii^ titnoiii wliich tlio 
 :M;ti(iii inilMt Ih: l)i(iii;,'lit till! .lay '>" wliiiOi tlii! f.iut 
 \vix» coiiiinittuil iiiUHt 1)1! <'Xi'liiilt!il, HO that an 
 ii'tioii roiiiiiii'iifcil on till! Tttli .luiii', lor ail act 
 ■DiiiiiiittLil nil till! Titli DfCfiiiliiT, was in tiiiii!. /Ii. 
 
 To ri!;^iHti'arH. Sl'o (hit'ir'n Inihintr'ui! liniin 
 ■mil fnrinliiiiiif Ci). V. lAiiiliiii ct nl, ',i O. \{. (id. 
 
 II. C'ai'hk oif Action. 
 
 Ah to plane wln:ro cansu of aution aroao on 
 bruaoliof i:imti'act. Svali'il/ir-ifrri'c v. Mr/Jniii/iill, 
 
 :u c. I'. i()4 ; () A. K. r>ra 
 
 Sec C'a.tWfn V. Miirnu/ rt ,(/,, 9 I'. I!. V.)l. 
 
 III. MiscKM.ANT.ors Cahkh. 
 
 A iiiortLjagoc j)rocoi!il<'il on tho siiik; day to 
 fiiruoloHu till! [iropiirty of tlio inoi'tLji;,'.)!' ami his 
 !<iii'i:tioH, by hhvuimI liills ii{i iii th'ir rmiifctivo 
 iiiort^ igu.s, aiiil to SIM at 1 iw in iliiri!ri'iit ictioiiH 
 till' Hinii! pii'tiuH on notes Imhl by tin; |il lintitrs, 
 til wliiiih the inort^',i.;.!S worn o ill itTil: -li'M, 
 that onlyoiiii Hiiitin o piity was luici'ssiry, as all 
 putii'H miyjlit liavo liuon l)roiii,'lit hufiiri! the (Joiirt 
 tlirrein.all rijiiieiliesf^iven wliii;li might liivo Ikk!!! 
 ohtiiiuil at law, and all rij^hts iiioro convoniuntly 
 iidjiisluil between the parties in oiu! than in 
 several suits ; .mil the eniirt would not be ile- 
 tiTred fi'oin |;,'i'aiitiiii,' relief by the eireunist iiiee 
 of a deeree being eoinplieated. Mcrclinnt.-t Itmih 
 V. SparkcH, 28 (Jhy. 108. 
 
 (^U!uro, whether the olerk of a municipality is 
 only li.ablo to a eonviction under sec. I8!> of the 
 Assessment Act (K. S. (). c. I HO) at the suit or 
 ii]iiiii complaint of the crown, or to a civil action 
 liy the plaintills jis well. <,'i)r/)'iriitiim <if llic Town 
 iif I'</)'rhoriiwih v. EiliixmU, 'M (,!. 1*. '2.'{l. 
 
 One M., and the def(!iidants .is his sun ties> 
 executed a bond eoiiilitioiud for the good be- 
 haviour of M., a clerk of the jilaintiirs at Mon- 
 treal. The bond was executed at ll.iniilton by 
 the defendants who were resident there, M. 
 made default at MontrcMl aud absconded. I'ro- 
 •:eedings were taken .-igainst the sureties without 
 joining M. I'er Spragge, O. Though the breach 
 occurred in Montreal, and there was no c.iuse of 
 action till default, yet there w.as a potential 
 e^juity in the defendants, coevcal with the exccu- 
 tiiin of the bond, which liecame a right of suit on 
 the defaultof M. : and there w.as .also .an iin]ilied 
 ■•(latract on the part of M., upon execution of the 
 bond, to repay to his sureties .any money th.at 
 I hoy might have to ji.ay by reason of his default. 
 liir.hanijv Jinnk v. SpriiKjer ; The name Plaintiff 
 V. Barms, 29 Chy. 270. 
 
 The contract in this case h.aving been m.ade 
 between appellant and respondents only, and 
 being a contract of .agency .apart from any qucs- 
 tiim of ownership, the .action was properlybrought 
 by appellant in his own name : Tascberc.au and 
 < 1 Wynne, JJ., diss. Wvldoii v. Viuujhan el al., 5 
 N. C. R. 35. 
 
 Members of elmritftbli! and provident societies 
 should not be allowed to litigate their gricvanoes 
 within till! society in eourt't of law until they 
 hav(! lixbaiisted every posiiblii means of redress 
 aHoided by the interinl regulations of their 
 societies. lixHvni v. I'liuH I'rUIr iil'Ihe /hiiihiiuii, 
 2(). I!., Chy. i). r>9fi. 
 
 Therefori!, where the plaiiititl' being (!xpelled 
 from the .Xncient Order of Koresters, (ileil his 
 bill for restitution thereto on theground of illegal 
 expulsion, but it .ajipe ired that the rules of the 
 so(!iety jirovided certain internal tribiinals to 
 which h(! might have a]ipe iled for redress, but 
 had not, this court refiiueil to interfere. //*. 
 
 It is within the power of a solicitor to settle a 
 suit on behalf of Ins c'lieiit, where the settlement 
 is in good faith. M,-lh,ii(ihl v. Fulil, 9 I*. R. 
 220 J)alton, Munli'f. Itiit this case was over- 
 ruled by the Divisional Court of (!. I*., not re- 
 ported. 
 
 The .action was brought by one F. anil his 
 wife, against .Arehibald 1"\, to n!Cover nine years' 
 arrears, under an annuity deed made by tho 
 defendant to secure .?I20 a year to tho plaintitfs 
 during their lives. .laiiet V., the defenil'int's 
 wife, iiad joined in the annuity ibied to b ir her 
 dower. SulHei]iiently the defendant Archibalil 
 l'\, abandoned his wife and absconded, .lanet 
 v., tlii'u brought an a';tiou for alimony, anil now 
 apjilieil f,o b.; let ill to defend this action, on tho 
 gnmnd tint it was collinively brought for the 
 purpose of ilefeating her suit for alimony, .anil 
 to deprive her of h(!r dower in the lands : — Held, 
 upholding the order of the M istor in Chambers, 
 that ■linet I''., was entitled to be adinitted to 
 defend. — /'V/tm H iu:. v. Ffrris, 9 T. K. 443.— 
 Oalton, Mcn/i'f — l'"erguson. 
 
 Action for the removal of a registered instru- 
 ment wrongfully registered and for damages. 
 See Oiiliirii) /niluilriiil /jixni nnil InivMiiicnt Co. 
 V. LhfUiiital., 3 0. !{., Q. H. 0. (iO. 
 
 A creditor's assignee, not himself a creditor, 
 cannot sustain an action to set aside a fraudu- 
 lent conveyance or transfer m.ade by die debtor, 
 prior to the .assignment under which Lo claims 
 to be such assignee. — Lammli'u v. Sciitt, 4 O. R., 
 Chy. 0. 323. 
 
 If a person borrow money from an innocent 
 l(!nder and employs it in jireferring a creditor, 
 the lender is not debarred from suing for repay- 
 ment. 8ee Court, v. HnUnnd, vt al., 4 O. ii, 
 C'hy. I). 088. 
 
 ADDING PARTIES. 
 See Pi.EADiNO, 
 
 ADMINISTRATION. 
 See ExEcuTOKS and Admikistrators. 
 
 
 
 
 ADMINISTRATOR. 
 See Executors and Administrator.s. 
 
Al/niKATlON. 
 
 8 
 
 I'lirliciil 
 tciy ill tl 
 unit. Sot! 
 - JJi.y.l. 
 
 AI>MI,SS|(INS. 
 
 Sii; I!vi|)|:m'k. 
 
 ADUl/rKltY. 
 
 II'M (llllltlcll 111' ^{lllrr.ll lll.'llj,'! H (if :mIii1 
 iv HtiiU'iiiriit I'l I'liiiin ill an ali iiy 
 
 /ttmunuiiii V. ii<w„xi<i>ii, II I'. |{. :mi. 
 
 tvltli tiii'ir |ii'o|iitnitiiiii, iiltlimi^li thii cimtH of 
 tlir »iiit wi'l'c ^'ivcii liiiii. Iliinilniiii V, It'iirn I/, 
 
 '.'7 < 'liy. W), 
 
 III till' |il.'iiiilill 'n iilliil.'ivit oil u iiiiitioli to Hi|;ii 
 liiiiii juilL-iiuiit iiiidir Itiiltj M), (), ,1. Act, llii! 
 Hoiil " ili't'i! ,('ii'' li.iil liti'ii Mlriiuk out, (uid tlu! 
 Woiil " ii|i|MMiiiim'" iiiti.rliiiLiI, without iH'iii;^ 
 iiiitiili'il liy till' roiiiiiii^sioiici' lu'loi'o ulioinllii! 
 alliil.ivit waK Hwoi'ii : lltlil, iiinlci' rulo 4liS (>. 
 •I. A(;t, thai llio Mliiij; it coiilil not liu li'ail. 
 Iltiilil V. M<\„i/, >i i: K. 4!t;{.- Diilton, .l/w.s^r. 
 
 ai)Vi;uti.si;mi;n'I' 
 
 A(;i;\T. 
 
 l'uBM<!ArioN okMimhi-ai. Uv i.wv .S'.. MiM-j , (;,,;s,,;m,,,.Y .sv, I'imm ii'ai, am. Auknt. 
 
 CIl'.M. ('lil;l'l>liAI'IONS. 
 
 11. ()K AlKiKNKY .Vet AnoKNKV AND .Soi.n.'l- 
 
 Tht! fact that an intoHtatis wliosi; ustati^ is lioiiiK 
 liartitioiicil, lias ht'cli cirati lor l."! years ilocs not 
 wiiriaiit a iiiasU'i' in ilisiitiisiiig with tin; iiHiial 
 iulvortisi!iniiit lor cii'ilitors. /'i|/;/"'' v. Ithjijar, 
 
 8 P. If. IISS. Ulako. 
 
 Notion for a call on HtooU iiniior I-' \'iot. c. 
 157 H. -'7, puMi.^l.rcl in a in wspajior in ono dis- 
 trict is MUlliiiriit to render the shaieholiiers re- 
 tiidiiif^ in that ilis-trnt liahle to |iay the eall, 
 notwithstanding! tluit the notice may not lia\c 
 heen imlilished in other ilistiiets « hen: stock is 
 liuld. I'rui'.iii •itl lh.i. Co. V. ('(iiiifi-iiii, h'jicii- 
 trU ; 1111(1 .'i(.( 'tllnr Ciism, ;{| (,!. I'. 5iJlt ; alliniicd 
 
 9 A. !!..■)(;. 
 
 TOR. 
 
 A(;i!I';i;mknt. 
 
 Sie (.'ONIIIAI T. 
 
 Al'KIDAVIT. 
 
 An alliilavit entitled in the (,». I'.., and sworii 
 hclorc the Judicature Act eaiiii; into toree, iiiij^ht 
 under sue. II, suh-sees. "J ami '.i, he made the 
 t'oundatioii of an order in the (). It. I'ivi.Nioii. 
 I'JIIht V. Ciiiidt, [i v. K. 'Xk Dalloii, M».4ii:- 
 Oslcr. 
 
 Wliuro the athdavit I'or .m order to anest, was 
 iutitided 111 the High Court ol .liisliec liiitnot in 
 till) proper Uivision : -Meld, that tiiu olijection ] 
 waa clearly aineiidahle. Uulitrlnun v. (JoiiUoii, 
 I'. K. It). (Isler. 
 
 The allidavits upon w liicli the order for a w rit 
 of attaclimeiu against :ui ahscoiidiiij^ dehtor wa.s 
 issued, were not st^leil in any eoiut, aUhoiiyh 
 sworn helorc a eoinmissioiier lor taking ailidavits 
 in the (^. 15., who appended to his siyiialure tile 
 words, " A Colli, in 1>. I!., iVc." Meld, ihaL the 
 allidavits were siulicieiit : I'lllerhy r. Walton, '2 
 1'. U. 147, followed; Hart r. Kuttaii, I'li C. I'. 
 (il3, not lolhiweil. ,-)cott v. Milrlull, b I'. K. ."ilS. 
 — Ariiiuur. 
 
 The allidavit of hoiia tides in a chattel inovt{,'a(.!o 
 puipoitcd to heswiiril hclole " T. 15. 1'.." Wllli- 
 oiit ail)- addition. J he allidavit of execution 
 was sworn lietoie the same coiiiuiissioiier, his 
 I .line lieiiig loUoweil hy the words, "A Coiii- 
 iiiissioiiei 111 li. l;., itc." — Held, no olijection to 
 tlio allidavit of bona tides, l/iimiltou v. i/(u-riso)i, 
 4uy. K li.'7. 
 
 Where allidavits u.se<l on a motion were l..idly 
 written, scarcely legible and ditiiciilttodi(i]iliei-, 
 the court relused the plaiiitilF all costs connected 
 
 AldKN. 
 
 I. SKUVK'H on- -iSV, rUACTlllK. 
 II. UltlllT'l'O Vo'l'K- .Vet; rAKLIAMENT. 
 
 (.'ui'taiii aliens had taken the oaths of allegi 
 alice, iVc, heloi c a jllslit:e of the peace of a tow n. 
 w Inch oatliH weie ,»iuiiiiislercd lotheiu in a towii- 
 .^iiip, liiit wiiliiii tlu: sa:i;c county : — Held, that 
 under the Alico ,\cL. ;i4 \'ict. c. '2'2, s, 1', Doui., 
 llie ju.iliee ol the peace in administerinj; the 
 (Ml lis, w:.s acting iiiiiiisterially and not jf Hoi- 
 ,illy ; ami lliat liic oaths were properly admin 
 isucl'eil. Jdliii thill iimoi'ii \'uti' — l.iiicoln Klffthili, 
 I aiiiii.ij \. Iiybri, i II. K. C. TiUO. 
 
 See Until r il, ill. v. Jiuncnfihlt ; .S'K'ctor el iil. 
 V. J,'o.'<riij,li/t, b v. I{. 175 ; iSmil/i v. Smith, !) V. 
 II. 511. 
 
 ALIMONY. 
 
 .Vk lllsHANlJ A.Nl) WiFK. 
 
 ALLUVION. 
 .V(.'( Waikr a.no VVateh Col'kses. 
 
 ALI'KKaTION. 
 I. Ok Bills ami Notks— .SVc Billh ok Kx- 
 
 CIIA.NOK AMI I'ltO.MISSOHY NoTK.S. 
 
 JL Ok L)euijs— .V((' Dked. 
 
 Alteration of accounts. Criminal liability. 
 •See In (v Hall, 1) 1". 1!. :i73 ; 8 A. K. 31. 
 
9 
 
 Ai'ri:AL. 
 
 K) 
 
 A^rK^'l)Ml:^T. 
 
 I. Oi' ri.i'.AnrNns .SV( l'i,i;\i(iN(i, 
 
 II. I'll Al TIC K-.SVc I'ltAC'I'K'K. 
 
 Ill, Of I'KTITION AND I'a IITIiMI.AK>< IN TlUAI.M 
 (ll'CoNI'IKiVI'.UIKK I'lir.iTIONH -Sic I'AH- 
 I.IAMKST, 
 
 Wlioro jK'iiiliiii; the itivoNliii'itinii of the title 
 Ulllcr till' •.•lli"tillL,' Titles Ac^t. tlie |ietitiiiller 
 I.liil imt the l;i?iil ill vill;i!,'(! Ints .'lllil lenistereil II 
 )lllll : — Helil, tli;it the Jietitinii liiiiHt lii' .•iilielldecl 
 
 ill nccenhiiieo witli tho plan. AV Murxr, H I'. 1!. 
 I"..-Hl;ike. 
 
 .Vinoiiiliufiit of Hciitiiiice in ii eonvietiim liy tlu! 
 (leiiel'.il .Ses.siiiiis cif tllo I'e.iee. I'lifeet of. See 
 M.-hllaii V. MrKliuiim, 1 (). 11., (.). M. I). 'JI!». 
 
 Tliei'e h'lviiiL,' lieeti a iiiisiioinep in the iiiineH 
 of the apiilieMtits fur ii iirinil iiiiiH |ier .XriniHir 
 ami CiiMierdii, .1.1., mieh nii-nionier imt liaviii;,' 
 heeii olijeeted to on the ;irL!nnieiit heluw nii'.^ht 
 be ;uiieliile'l. !'er ll'iLfirty, <'.!., in wneli a ease 
 11(1 aineliilnieiit shnnlil lie i,'iMiiteil as 'i initter of 
 (lisorction. In re /fii/h Si-hnnl liadrd n/' ll'ijli 
 Srhodl DUlncI Nil. / III' thr U. ('. of S'/„niin'ii/, 
 /linidin, (tiiil nil iKjd n'!l, mid tlic .yfiiiiiri/iii/ Cur- 
 jitiriilhiii of Ihf Tiiirii-i/ii/) nf Wiiichfili'r ; and ann^ 
 Ili'-rCiisr', 4.'5 Q. H. 4(10. 
 
 Held, tliit an inform ition wliieli ineliides three 
 distiiK^t oU'enees of keepini? for h ile, .selliiii^, and 
 li.'irteriiiii into.xieatiiiL,' liquors, whieli '.uw |iro- 
 liiliited liy see. !M( of the (! inadi 'reiii|ierane(! 
 Aet, IH7.S, eontravenes ;i2-.rt Viet. c. :tl, H. •->.">, 
 which |iroviile,s thit every iiifonnition shall lie 
 for one oireiioe only, lint held that sneli infornia- 
 tioii may lie amended by strikiiif^ out all the 
 oflences char^'ed except one ; and that Hiioh .in 
 amendment may lie niailo after the case h.is lieen 
 closed and reserved for deeision. Jfi'i/inii v. 
 liviinclt, lO. H., Q. H. I). 44.'). 
 
 When a l>ridr,'o was wronj,'ly desorihed in an 
 indictment as lieinj,' in two townships: -Held, 
 til it tiiiiil.L!li this eould havi; lieen amended at the 
 trill it coiild not lie allien led on a motion to set 
 aside the verdict or for a new tri il, lliii'nui v. 
 Till Viiri)iivittioni)fthe('oantii of Citrliliin, I (>. I{.. 
 (I I?. I). 277. 
 
 Where the adidavit for an order for arrest was 
 intitnled in tlie lligli ■ '<uirtof .Instiee, lint not in 
 the proper Division :— II lild, that the oliieetioii 
 w;is clearly aineiidalile. Jiuliiii.ion v, Vinilliin, 
 <• I'. R. Hi. -Osier. 
 
 The caiii.as issued after action was in the f<irni 
 formerly iisiid for the eoinniencement of an 
 .iction :- (eld, ameiidalile. //). 
 
 Power of su))eri()r court jndj,'e to amend a eon- 
 vietinn. 8ee Nii/ina v. Alllini/ht, 9 1*. I{. 2,5— 
 Uslcr. 
 
 Of an information for violation of the Canada 
 Tempor<^ne^ Act 1S7S. See ji'i'i/ina v. lii'nncll, .'< 
 O. I{., Q. B. Div. 4.5. 
 
 ANCIENT DOCUMENTS. 
 See Evidence. 
 
 ANIMALS. 
 I. Imi'iiimumi ash Ki'.ki'inii -.V(C Mini 
 
 Cll'AI. ( 'nItl'Oll A'ridNS. 
 
 II. IN.H'KV T(i Sir KaiI.WAVH AND Uam.WAV 
 CoMI'AMK.S. 
 
 ANMITV. 
 
 ,Vm Will,. 
 
 On the IHth Oetolier. ISCill, the owner of real 
 
 est ite '^r 'lit 'd .'111 aiiiiiiily tliei iit of $U). with 
 
 power of distress in cise of default. Only ono 
 vivr's aiiiiiiity w.'is pild, and in Oetolier. IH77, 
 the. urMiNir, liy Wiiliii'^ nekiiowledi.;ed the 
 'iino>iiil llii'ii due. () I a lii|! tile I liv the aniini- 
 tiiih eliiniiiii; ten yeirs' iirrcars, with iiitiTeat 
 til 'I' 'Oil : lli'l I. til it tlii^ power of di-itr"s< wis 
 
 not Hiicli ;i pen dty as took th ise out of the 
 
 Ljeiieril nile th it interest will not li " allowed on 
 arreirs of aiiiiiilv; 'iiid tliit notwitlistanding 
 tlie written aloiissioii liy tlie L;i''ntor of the 
 am unit due nil ler the leed, the .iiinnit int (^oiilil 
 reeiivcr only six years' arieir-t without int'rest, 
 as .1,' liiist, i /iii'-iiir iiiiMiiiilir in 'I'l' who hid duly 
 r.'Ljistered his conveyance, ('ri)ni' v. Crone, 27 
 Chy. 42.5. 
 
 ANSWKIt. 
 
 Sri' I'l.KAlllMl. 
 
 ANTi; NKI'TIAl, SKITrd'niKNT. 
 
 Si'i- Fl!An>l IKSr ( 'ONVKYANCIW. 
 
 A I 'I 'K A I,. 
 
 1. To I'ltivv Coi'Ncii. .SVc Pkivv CoiiNrii,. 
 
 II. To Sri'iii'.MK Coi'icr .SVe Sim-heme 
 ('(iriiT. 
 
 III. To Cm irr ni- .Aitkai, - .SVe Coiikt of 
 
 Al'I'llAI,. 
 
 |v, To DivisioNAi, Cduicr .SV'(.' Divisionai, 
 
 Ciirnr. 
 
 V. Kn(i\i CorNT\' (!()iTitrs -See County 
 
 ClIlTKI'.S. 
 
 VI. FiioM Division Coenr.s— .SVc Division 
 <'<n'i!is. 
 
 VII. KiidM .liiiDK IN SiNdiK VovKV—See 
 Divisional Cdrirr. 
 
 VIII. FiidM (!i,|.-,i!K (IK riii: Ckovvn and Pi.eah 
 
 .S'rc I'llACIICi:. 
 
 IX, KiidM Mastki! in Ciiammkrsani) Master 
 
 IN OltlilNAnV -.SVe I'kAI'TK'R. 
 X. FitdM nKI-l'l!F,|-. -Srr TkacTICR. 
 XI. FUOM MAdlSTKATKS-.S'w Sk,s.sionh. 
 
 XII. FiioM AwAHDs -,SVf Arbitration and 
 
 Aw All I). 
 
 
 
 
 > 
 * 
 
11 
 
 A11I3ITRATI0N AND AWARD. 
 
 12 
 
 13 
 
 XIII. FitllM AsSKSSMKNT ,»)'<(' ASSKKSMKNT AND 
 
 Tanks. 
 
 Xl\'. In AiM-i,ir\iii.ss idU Nk\n 'I'uiAL-.S'fe 
 New Trial. 
 
 X\". In TitiAr. UK ( 'oNTHdvi utku I^i.kitkins 
 —See Parmament. 
 
 XV'I. I'AS MKNT ok MoNKV OI T ok ColRT I'KMI- 
 
 iMi Aki'i:ai.— .V(f Cu.vrs. 
 
 Kccevi'ry lnuk of iiioiu y [uiid into coiwt an 
 SL'ciiiity for ajiin'iii— liittTust. Sei' T/ir Cit'r.ciis' 
 Jii.s. Co. V. /'tirsuiis, :{•_> (A 1'. 4!)L'. 
 
 (,»ii;«it', (Mil till' iJoiniiiioii I'ailiaiuciit give .'m 
 apiical ill a casu in wiiicli tin; Lugislatui'o of a 
 I'roviiRi' lias (:xln■t■.s^ly iluuicd it. J)aiij(iu v. 
 Mui-qim, '.\ .S. C. it. iii\. 
 
 Ill ])iiial statiiti.'.s (iiitstioiis of doiilit nro to be 
 coiistiiu il lavoiiralily to tliu accustd, aiitl wIiltc 
 tliij court of tii.st iiititaiiio in ai|iiasi ciiiiiinal trial 
 lias aL-((iiittcil tiie ivspoiKk'nt tlio aplR'Uato court 
 w ill not reverse tlie tiiidim:. Smlli Diifuriti Etcv- 
 lio)i—McC<idill \. I'n.rtni,', 1 II. H. ('. ;J04. 
 
 All a])iiellate >.ourt will not, ixcejit under s]>e- 
 ciiil cireuinstaiici'H, interfere witii tlie liiidin;^' of 
 the court of lirst instance on (|iiestions of fact de- 
 ]ieiidiiii,' on tlie veracity of \\ itnes.-es and con- 
 flicting evidence. llnllon Elrcthjii—BiiA^i'll v. 
 Barlnr, 1 H. I'l. C. 283. 
 
 PerCJwyiine, .1. A court of appeal should not 
 reverse the lindini; iqioii inatti rs of fact of the 
 juil^c who ti ied the cause and had tlie oppor- 
 tunity of olisei viiig the demeanour of the wit- 
 nesses, unless the evidence he of siieli aeh.-iraeter 
 as to convey to the mind of the judges sitting 
 on the a[iiiell,ite triliiiiial the iiresistilile convic- 
 tion tliat the lindings are eridiieolU'. Hiimi v. 
 J,'!/iui,r>i^. V. It. 4()ii. .^eealsd, Liltl>' \. BniiihT, 
 i-'fi C'liy. I'.M ; Tli> J'lrl<,n~~Mc('<uil(i d at. v. 
 Ktith, 4 S. ( '. 1?. G4S. 
 
 Per (iwyi.'i , ,7. It is a jioint fairly open to 
 tnijuiry in v court of appeal whether or not, as 
 in this ease, the inferences draun from tlie evi- 
 dence hy the judge \\ Im tried the case without a 
 jury, were the icasoii.ilih.' and proper inferences 
 to he drawn from the facts, llnlliuiln r v. 7'a;/- 
 hr, 5 S. t'. ]{. ;{(JS. 
 
 Ill an action of damages, if the amount award- 
 ed in tin; court of lirst instance is not such as to 
 shock the sense of justice and to niak. it i])[iar- 
 eiit that tliere was erriu' or partialitj- on the part 
 of the judge (the exireise of a diser^ t'on on his 
 part being in the nature of the case reipiire.d) an 
 appellate court will not interfere with the; dis- 
 cretion such jiidge hiis exercised in determining 
 the anieiint of danii'ges. Lrn v. Had, (i .S. ('. K, 
 482. 
 
 The court being e(|Ually ilivided, the jiidgnient 
 of the court below was not altered. McLiod 
 V. The y^'W Bfuiiau-irlc Rdilicaij Co., ") S. (". H. 
 281. See also, Mum-i' v. Tlif Cukui ■•lU'iit Mn/mi/ 
 Lifv A,i.'<iim:.cc ('<>. t>f fl'ir/fonl, (i S. ('. I!. (IIW ; 
 (Wv. ^fo)•i|l||l,'tS. (". |{. l": MiCilhiin v. (></,/ti, 
 lb. 36 ; Miirnii/ it nl. v. T/i< Canuila ('< iitnil A'. 
 jr. Co. 7 A. K. ()4() ; In iv II, ill, S A. K. 13"); 
 
 Tlic Gaiinihi Cuitral 11. W. Co. v. McLnrev, ,s 
 A. 11. 5()4. 
 
 The plaintifl was permitted to proceed witli a 
 new trial pending an appeal where he shewed 
 that he had* already been inconvenienced liv 
 delay, that further delay would prejudice hiin 
 linancially, and that by it he might lose iniiioi t- 
 ant oral evidence. MrDouahl v. Miin'oi/ of a/.. 
 !t P. 1J.,4()4.— ^\■incllestcr, m</i-<trnr Q. li. D. 
 Magarty. 
 
 An interim injunction will not be granted in 
 aid of a jilaintilT, to preserve the subject matter 
 of his action in statu (pio long enough to enable 
 him to obtain the decision of an appellate court 
 on ]ioiiits alre.'dy decided in other eases, against 
 his contention, in courts of first instance. Wi /d 
 v. J/(,'i1/((.>/( /■, 4 O. P., Chy. |). 717. 
 
 As to separate apjieals to difTercnt courts. Set 
 lldtcJil it nl. V. 3!nrliiiiits' ]Ji.<ji(Uili Co. et at., 4 
 (). E.', (}. B. 1). 723. 
 
 APPOINTMENT. 
 
 Pdwrii OK — .SV',' Wii.r,. 
 
 APPKOPRTATION OF PAYMENT.'!. 
 
 See Paymknt. 
 
 ARBITRATION AND AWARIV 
 I. '-'uii.Mi.ssioN OR Rkkkhknck. 
 
 1. ]Yhat may tie rijirnil, 13. 
 
 2. Bi'fi'reiiri' iinitrr C. L. P. .{et. ami <i 
 
 J. Art, 13. 
 
 3. Mill:!:. ij SiitiiiiU.<iiin n Hull iif Court, 1 I 
 
 4. /'v.ilri'iihiiii .hiiitriilors /'nnii jirori 'I 
 
 '■";/. IJ. 
 TI. Ai!iirri!AToii. 
 
 1. Puu-ir anil Duti/ of. 
 
 (a) JJiri'iiliii/ timi' anil mamur uf Pin- 
 
 llhtit, 15. 
 
 (b) Costs, I(i. 
 
 III. U.Mriiii; uit Tiiiiiii AiiMrriiAToK, 16. 
 
 IV. i;XAMIN.VriON OK Wrr.NKSSKS, 17. 
 
 V. AwAiU). 
 
 1. Tiiiii- of nud'iiiii, 17. 
 
 2. Ut'i'i i-incc hiu-k, IS. 
 
 3. Apiiriilfroiii, 18. 
 
 ^'l. .'^rAYIMl AM) SKTIINi; ASIliK PROCKK' 
 INGS ON AWAIil). 
 
 1. .Misriiinlurl II/' A rliilr"' IIS, Ml. 
 
 2. Tiiiii'j'or niurhiij, li). 
 VII. ENKORfINU AWARII, 19. 
 
 VI 1 1. Co.sis, 20. 
 
 IX. In Pai!TKIT.\r Casks. 
 
 1 . A rliilnilhin of ijiiistiuns artsiiii; hetwi ■ /. 
 till mill rs of liicorimruti'd Sock'liis. 
 20. 
 
 "Vi'^^v 
 
1- 
 
 ARBITRATION AND AWARD. 
 
 U 
 
 #1 
 
 Court, 1 1. 
 
 11) jirori 'I ^ 
 
 Referpnri' of foxx umhr hiintranci: Po- 
 licies—Sec iNSlTRANt'E. 
 
 Umhr The MunicipnlAct—See'Slv^i- 
 
 Cri'AI, CoRPOHATION'S. 
 
 Umhr liailwnii Ac/-: — S'cc Railways 
 AND Rail' ay Coiitaniks. 
 
 sees. 47, 4S of tlio O, J. Act, and that defomlant 
 niiijlit sijin judifiiiL'iit oil his re))i)rfc. Wdllacc v. 
 W/i(tky, !) P. It. 248— /)r(/^r), MnMer. 
 
 ^. Mnkiit',1 Siihiiii-"<'inn (I Rail- of Court. 
 
 V>y ail aureoniunt iiiade lictwocn L., a Iniilder, 
 and the huildiiiL; Cdiiiiiiittuu of a rcligioua body, 
 all \)revioua contract.s and aniuuiiioiits wore ter- 
 iiiiuatud.and.siiriciiilered, and L, was toforof^oall 
 ri;;ht to coinurnsatioii except under ilie agree- 
 iiU'iit. One 1''. wa3 to inspect and value the 
 work ali'e:'(ly done on the huildiiif,', an<l if not 
 aeeordinj,' to jdaiis and s))eeilie:itions, L. was to 
 rectify the same at his own expense. V.. was to 
 value the huildiny in its present condition, and 
 his award was to Ik- linal, and to he the sole 
 amount thw to L. to date ; lie was :dso to inspect 
 and value the liiiildinti material on the 1,'round, 
 whicli was to lie |)aid for at the original cost ; — ■ 
 Held, tli'it the cfiect of the aureemeiit was, tliat 
 aiirice to lie lix'il hy I'l. was to lie paid for L.'a 
 works, tliat 10. was not an arbitrator; anil that 
 the agreement could not he inaile a rule of court 
 as a s\il)niissioii to arbitration. In re Liimjiimn 
 awl Miiriiii ./ ,il., 4(i g. B. "liiO. 
 
 When a submission to arbitiation provides for 
 making the submission a rule of any jiarticular 
 court, no suit or proceeding cm lie had in any 
 other court to set .aside tlie award, whether sucll 
 submission his or has not been made a rule of 
 the court n:imed in it. Direrl Ciihh Co. v. 
 /Joiiiiiiion Teh'ijritih Co., 28 t'hy. 048. 
 
 The plaintiir and defeiid.int agreed in writing 
 to submit certain iii'tters in di>|iiite to an arbi- 
 trator, to lie selected by a [lerson named in the 
 sulimis^iion, who snbsei|nently ajipointed the 
 arbitrator vcrli.dly : -Held, per L'.itterson and 
 Morrison, .1.1. A., allirming tlie judgment of 
 (l>ler, .)., :{L) C. I". 4(i(i, tiiat tlie fact' that tho 
 arbitrator was verbally .ippoined did not prevent 
 the sulimission from being male a rule of court. 
 I'cr lUirlon, ,]. A., and Armour, .1., that the 
 appoiutuu'iit not bi'ing in wiitiiig, it was a [i:n'ol 
 submission and could not be m ide a rule of court. 
 I 'raieksimiik v. Corli'-i/, 5 A, K. 415. 
 
 The aurconient for submission c intained a 
 clause that it should be made a rule of the (_'ourt 
 of (j)ueen's I'lMich in i'lnglaml, and all |irocci'diiig3 
 under sec. 47, or 48 of the .hidicatnre Act), and I thereunder slioidd be goveriieil as in tireat Bri- 
 that an ajijical froiii the linding of the master I tiin liy the provisions of the I'.nul'sh (I. L. P. 
 was therefore set regularly down under the |iro- | Act : -Held, that this formed no objection to the 
 visions of that Act to be heard before a single i jurisdiction of our ('ourt of ( 'haneery. The 
 judge in court. CuiiiiiiiiHi v. Low, 2 (). 1?. 41)9. | />!reii Uniteil S/nfrx (,\(l,lc <',,. { f/mnlid) v. 77/« 
 -Ualer. ! Dmiiiiiinii 'I'l liinijili Co. o/ Ciiinii/i), 8 .\. K. 4ni; 
 
 Remarks asto the cfTect and ajiplic.ation of sees, j "* '^ ' 
 
 17 and 48, above referred to, and as to the proper 
 form of the order of reference. Il>. 
 
 At tho trial the following order of reference 
 was made : "Upon hearing the solicitors onbotli 
 ^ides, and by their consent, I order that all 
 iiiattcvs in ditlerciice between the parties in this 
 <ause he referred to tho certine.ito of the local 
 master of this court at Orangeville, with all the 
 powers ;is to certifying and ainending of a judge 
 of the High Court of Justice, and that the costs 
 of the suit and of the referenco be in the discre- 
 tion of the said hical master" : - lIcM, that the ' on behalf of the plaintill's for irregularity in such 
 master was to act as an arbitrator under the ' nomination:- Held, that the arbitrators being 
 C. L. P. Act, not as au officer of the court under i necessary parties and the defendants reside nt in 
 
 I. SrnMi.s.sioN oil Refkrknce. 
 
 1. W/lilt 111(11/ lie rejerreil. 
 
 Reference directed to deterniiiie the amount of 
 dam.ages sustained by the ]il lintilf under an 
 agreement to servo defendant, as manager of a 
 timiery, for six years, the agreement reciting 
 that plaintilF w-is to manage the works and the 
 defendant was to furnish the capi"- il. for failure 
 of the defendant to jierfiU'in his [lart of the agree- 
 iiunt, and for the dismissal of the plaintifT. 
 lilakc V. Kiiijialrirk, (> A. 1!. 212. 
 
 2. Reference iiwler C. L. P. Act and O. J. Act. 
 
 Qua're, whether a rofercnce by consent by rule 
 i>f court or juilge's order is within sec. 20.") of tho 
 <;. L. P. Act. McCarlhii v. Arbucklc, 31 ('. 1". 
 405. 
 
 Held, on an .application to refer to arbitration 
 ,an action on the eomiiinn counts, that where a 
 material nuestion of factw.is in dispute, the case 
 was not a )iro|i('r one in which to m.ake .an order ! 
 for comjiulsorv reference. (I'linnon v. Gilitt, 8 
 I'. R. 115.— lialton, Q.C. 
 
 An .action for an account and clelivery nj) of a 
 trust estate was referred at the tri.d to the master 
 .at Picton, by an order drawn up on reading the 
 pleadings and hearing counsel ; the master to 
 iiave all the [lowers oi a judge as to certifying 
 and amending pleadings, &c., and toeni)niro ,aiid 
 report as to the plaintill's rigiit to bring an action, 
 the defendant to have the right tocl limall such 
 .allowances for his care, &c. , as in the master's 
 opinion he should shew himself eiititled to : costs 
 to 1)0 in the master's discretion, and the whole 
 report to be reviewed or aiipealcd from, accord- 
 ing to the statute in that behalf : —Held, a refer- 
 ence under sec. IS!) of the ('. !>. P. Act (not 
 
 4. Rc.itiiiiiiin;/ Arliitraturxfrmn Procerilin'/. 
 
 Before a submission has been made .a rule of 
 court, a court of eipiity has jurisdiction to restrain 
 an arbitrator imiiropurly appointed f.om entering 
 ujion the ilnties i,i such arbitration. Direct 
 
 \('itlile Co. V. JJuniininn Telejnijih Co., 28 Chy. 
 
 j (!48. 
 
 I In a suit in the f'ourt of Chancery to sot aside 
 ■ the nominati<in by the defeiid.ints of an arbitrator 
 
 
 If 
 
15 
 
 AUBITRATION AND AWARD. 
 
 k; 
 
 this country, tho ailntrators, though resident out 
 of tiie jurisdiction, were properly made defen- 
 dants to the bill. /I). 
 
 Tlie ohjcct of a cross hill ordinarily was to 
 obtain discovery on the ]»art of the plaintiff in 
 the croiJS cause to bj used in tho original cause ; 
 or in onler tool)taiii full relief in respect of the 
 subject nutter of litigation in the original cause. 
 Therefore, where a bill was tiled to restrain 
 arbitrators on the grouixl of irregularity in their 
 ajipointnient, from acting in respect of matters 
 in clispute between tiie plaintiff and defendant 
 comiianies and the defendants by tiieir answer 
 asked that if tlie court entertained the case it 
 should afford them relief in respect of the mat- 
 ters in dispute lietweeu the companies : — Held, 
 that tliis was not the proper office of a cross bill, 
 and therefore could not be set up <as a subject of 
 cross relief by tlie answer. Jl>. 
 
 The defendants also set up by way of defence 
 and aa a ground of ('.emurrcr to the plaintiffs' bill 
 to restrain prooeeiliiigs by the alleged arl)itrators, 
 tho pendency of another action in New York for 
 tho same purj)ose ; but — Held, that this could 
 only form a ground for application to stay pro- 
 cee<liugs, or to comi)el the plaintifis to elect be- 
 twoenlthe two tribunals ; and, Semble, that under 
 the eircunistances set out in the report of the 
 case, it could not bo taken advantage of in any 
 way. 'J'/if Dine/ Unitnl StnlcK C'nhli' Co. ( Llm- 
 >leil) V. Till' JJiiiiiiiiion Ti'liip-aph Co. of Canada, 
 8 A. I!. 4 if); L'SChy. G48." 
 
 II. Arbitrator. 
 
 1. Power and^Dnty of. 
 
 (a) Diirrliii'i Time and Manner of Payment. 
 
 Where the reference was only for the purpose 
 of astjit.l ■■'•"; and awarding the damages sus- 
 taineil by tlie plaintiff' by a tire negligently set by 
 the defendant, and the defendant agreed to jiay 
 the amount awarded ; and it was provided that 
 tlie costs of the arbitrators and award, &c., 
 should 1)0 paid by the Jiarty entitled thereto, in 
 whose favour the award should be made ; — Held, 
 that the arbitrators had no power to give a month 
 for payment of the sum awarded, or to direct 
 that tile defendant should pay the costs, but that 
 these directions were severable from the rest of 
 the award, and miglit be rejected. Jn such a case 
 the pi'mier course is to discharge generally a rule 
 to Bet aside the awanl, not to make it absolute 
 in part. J{e EijIeMon and Taijlor. 4.5 Q. B. 471). 
 
 A submission to arbitration recited that a con- 
 troversy existed between A. \V., ,1. \V. and M. 
 in relation to the amounts duo and jiaid on a cer- 
 tain mortgage made by M. to a loaning company, 
 and as to tie projiortion of said mortgage paid by 
 the said [larties to the company, and sul)niitted 
 this controversy to the arbitrators ; and the par- 
 ties covenanted with each other to observe tho 
 award. Tlie arbitrators awarded that M. had 
 ])aid the conipaay the amount he ,agreed with A. 
 \V. to pay on the mortgage, and had overpaid his 
 proportion by .'?fi'_'7, in w hicli sum A. \V. was in- 
 debted to him ; and that A. W. shouM pay tliat 
 sum to him on or before tiie 1st of .June, 1882; 
 and slioiiM also jliv the costs of tho reference, 
 viz., 835. Nothing was said about J. W. : — 
 
 Held, by 0.sler, .T. (1) That the arbitrators had 
 not exceeded their powers in directing payment 
 by A. W. (2) Tlir.t the award was not bad for 
 omitting to mention J. W., this being equivalent 
 to an award that there was nothing due by him : — 
 Meld, that the finding as to costs was unauthor- 
 ized, but was severable from the rest of the 
 award. WhUebj et al. v. MacMahon, 32 C. I'. 
 453. 
 
 (h) Costs. 
 
 By an order of reference the arbitrator was 
 empowered to certify and amend jileadings and 
 proceedings, and otherwise as a judge at nisi 
 prius, and costs of the reference, arbitration, 
 and award were to abide the result of the award : 
 — Held, that the arbitrator had no ])ower to 
 make any disposition of the costs, as they were 
 provided for by the reference. Deranneii et al. 
 V. Dorr et al, 4 O. R., C. P. I). 200. 
 
 When the submission or order of reference is 
 silent as to .josts, arbitr.ators have no power to 
 adjudicate upon them, but each party must bear 
 his own costs and half those of the award. .\ 
 direction as to the costs in such a case :— Held, 
 severable from the rest of the award. Re Jlard- 
 »!/ and Wren, 4 0. K., Q. B. D. (505. 
 
 [See last subhead.] 
 
 III. Umpire or Third Arbitrator. 
 
 To an action for wrongful dismissal, and on the 
 common counts, defendants pleaded an award, 
 by which all m.atters in dispute between the 
 parties had been settled. The submission was 
 to S. and N., and such third persion as "the said 
 arbitrators" should appoint, " so that the said 
 arbitrators or umpire " make his or their award 
 
 * * * by, &c., or such further day as 
 "the arbitrators, or any two of them," might 
 enlarge to. Before entering u[)oii their duties, 
 iS and N. .appointed E. as third arbitrator, iind 
 the award was executed by S. and 1']. only, but 
 jirofessed, in the body of it, to be the award of 
 the three : — Held, that K. was a third arbitrator, 
 not an umpire, that the word "Hm)>ire," in the 
 submission, must bo rejected as surplusage ; and 
 the award was invalid, not having been made by 
 all three arbitrators. WUtson v. Vork, -Hi Q. B. 
 289. 
 
 One of the stipul.ations in a C(mtract between 
 the plaintitr and defendant coin[)anies was, that 
 if any dispute arose between them it should be 
 referred to arbitration, each of the parties to 
 name an arl)itrator, and the two within ten days 
 after the appointment of the one 1 ist named, 
 should appoint an umpire ; but if either party 
 should neglect or refuse to appoint an arbitrator 
 for the space of ten days after being requested 
 .so to do, or should appoint an arbitrator who 
 should refuse or neglect to act as such, then the 
 arbitrator of the party making sucli request 
 should appoint an arbitrator on behalf of the 
 other party. A notice by the defendant com- 
 pany re<iuiring the plaintiff company to appoint 
 an arbitrator was duly served ontlie 10th of June, 
 on the agent of the plaintiff company in New 
 York, ami on tho 19th the plaintiff coinjiany, by 
 c.;blegram from London, named one G. M. I)., of 
 
i: 
 
 ARBITRATION AND AWARD. 
 
 IS 
 
 nrrnATOR. 
 
 Now York, as their arbitrator. On tliu 2Sth of 
 tlie same montli S., tin; arbitrator of tlie defen- 
 <lant coniiviny, wrote to C M. I>. re(|iiiriiiy him 
 to join in tlie naming of an umpire, but he an- 
 swered that he was ai)out to leave the city, and 
 wouKl return on tliu 30th ; tliat having been only 
 advised by cable of his apimintnient and tliat his 
 cciinraission would be mailed tc him, lie could 
 not until its arrival, intelligently take any action, 
 (til the ;iOth C. M. D. returned to his office, and 
 then wrote to S. expressing his readiness to act, 
 and at the same time coiiHrined a iiominition 
 made by his pMrtneis, during his absence, of .an 
 umpire : — Held, atiirniiiig the decree of the court 
 )iclow,2S fhy. fits. (I) that the f.iets did not 
 establish ail}' refusal or neglect on the ]).irt of ('. 
 M D. to .Tct as arbitrator, such as would justify 
 .'^. in naming an aibitratorin his stead : {'2) that 
 the naming by the arbitrators of an umpire w is 
 not such an act as rc(piired C. M. I ). to t tke part 
 ill within ten days from his appointment, or in 
 def.ault that his appi)iiitiiioiit should be vicited, 
 and 8. have the riglit to name a substitute. 
 JHrect Uiiitfl Stfifi'^ Cuhk Co. (LhiiUcI) v. 
 Dominhvi TiU'iirujih ('miiiKiin/ of ('inxulii, 8 
 A. R. 41 fi; 28 Chy. 048. 
 
 IV. I'^XAMIN'ATTOX OF WITNESSES. 
 
 Held, that under R. S. O. c. TiO, ,s, 224, the 
 ■witnesses on an aibitration must be exaniineil 
 upon oath, unless there is a iiositive agreement 
 or consent to the c<iiitrary. ,Snch consent or 
 agreement may be shewn dehors the snbniission, 
 and in tliis case, upon the alHdavits filed, it was 
 held to be sulliciently made out ; but, semble, 
 that it cannot be inferred from the absence of 
 objection or mere ac(piiescence. In re liuMrook 
 and titan; 40 Q. H. 73. 
 
 V. Award. 
 
 1. Time of ninking. 
 
 In an action on contract, the matters in differ- 
 ence were, by rule of court, by and with the con- 
 sent of the pirties, submitted" to arbitration. Hy 
 the rule of reference the award was directed to 
 be made cm or liefore the 1st May, 1877, or such 
 further or ulterior day as the arbitrators might 
 endorse from time to time on the order. The 
 time for making the award was (■xteuded by the 
 arbitrators till the 1st of September, 1877. On 
 tlic.Slst An-ust, 1877, the attorneys for plain- 
 tiff and doreii(iant.s, by consent iii'writing, en- 
 dorsed on the rule of referer.ce, extemled the time 
 for making the awanl till the 8tli Septemb(-r. < »n 
 the 7th September the arbitrators made their 
 award in favour of the plaintitf for the sum of 
 $5,001.42, ill full settlement of all matters in dif- 
 ference in the cause : IloM, revrraing the jiidg- 
 mont of the Supreme Court of Nova Scoti i, that 
 where the parties, through their respective at- 
 torneys in the .action, consent to extend the tin'o 
 for making an award umler a rule of referenc 
 siiih consent does not operate as a now submis- 
 810U, but is an enlargement of the time under the 
 rule and a continuation to the extended period of 
 the authority of tiie arliitrators, and therefore an 
 award ma.le witliin the extended period is an 
 a«^ird made under the rule of reference, and is 
 valid and binding on the parties. That the fact 
 
 of (me of the parties being a niunicipil corpora- 
 tion makes no dillijrence. Oah'n v. The Citi/ oj 
 Ilnlijdx, 4 S. 0. 1!. 040. 
 
 2. liiference Inieh. 
 
 In ejectment it was ordered in Hilary term, 
 1870, tliat a verdict should be entered for the 
 pliintifl', but no execution to issue until the 
 value of til. improveiiKiiits w s ascert dned and 
 the amount thereof paid to tlie defiinl iiit, and 
 that it be referred to the Master in (^h ineery at 
 Ottawa, to asrertaiii such v ilue. The master 
 made his report on the SOtli of t)itob"r, 187!), 
 merely tindiiiL' the value of the improvements, 
 without m iking any allowance fur tli • rents .and 
 pi'olits. In Ivister term, 1880, tlie idiintiflf 
 moved to refer back the re])ort to the mister to 
 iii.ike sueii allowaiiee : — Held, reve sing the de- 
 cision of (;,aln. .).. .SI <;. r. 227, tint tlie refer- 
 ence was to tile nnster as an olHcer of the court, 
 and that there w as nothing in nv of tiie secticms 
 of the C. I,. I'. Act, lit. S. (». e.' ."lOi. relating to 
 arbitr.itiniis. wliicli interfered with the right of 
 the court, under the eireunistaiices. to review 
 the act of tluir ollicer, and to send the matter 
 back for his rrconsider.atioii. Tiie in itttT w.as 
 therefore refi-rred b.ick to the m.ister to make 
 such allowance. MrCar/lii/ v. Arhm-kli-. 31 G.I'. 
 40."). 
 
 The arbitritors having made two previous 
 awards, v hicli hid both been referieil b.ack to 
 tlieni. an I groat expense iiicurri' I, the Court 
 refused to refer the matter b.ick to them, but 
 ordered tint it be remitted to f. • ju Ige of the 
 County Court, unless counsel eould iigree upon 
 such facts as would en d>le the court to ilc d with 
 the matters in dispute. In re Alh- niarle and 
 l-Jastnor, 40 (). B. 183. 
 
 See Moore v. Bnclcner, 28 Chy. (iOl!, p. 19. 
 
 3. Apjtved from. 
 
 Where a voluntary submissidii to arbitraticui 
 contained a jirovision that the .igr.iMiient might 
 be inado a rule of court, and that the court 
 might be moved to set aside or refer b ick the 
 aw.ird : — Held, that this conferred tm right of 
 appeal under U. S. O. c. .'iO. s. 1!)I. wliich, 
 under sec. 20,'), could only be con^'rred by the 
 terms of the submission. In re TiiriLslilp of 
 York- and Will.-,nn, 8 1*. R. 313. -Osier. 
 
 An .appeal lies from an nv.-ard made in pursu- 
 ance of a coiis(!iit order of refcirence in a (viuse at 
 nisi prius umlet sec. 2()'> of thr C L. I'. Act. 
 McEn'iin v. MeLeod, 40 Q. B 2.3r). 
 
 Held, that in Xovi .Scoti i, where tlu' rule nisi 
 to set aside .an award spoeifies cert lin grounds of 
 objection, and no new grounds are addeil by 
 w.iy of amendment in the court below, no other 
 j,i",.".ii 1 of objection to the award can be r.i'sed oil 
 appeal. Oakery. The C'lti/ o/ Jhdihu; 4 .S. C. 
 R. (i40. 
 
 Quierc, wherctheland h iviiig ln'cu taken under 
 an Act of the Uomiiiion I'arli imeiit whether the 
 lindingof the arbitrators could be reviewed under 
 38 Vict. c. 13 Out. Xori-al.lv. Canada Sotilher/i 
 It ir. Co., 5 A, R. 13. 
 
 V. 
 
 T 
 
 5?: 
 
 ? 
 
19 
 
 VL 
 
 ARREST. 
 
 20 
 
 Staying and Sktii no Aside Proceedinus 
 ON Award. 
 
 1. Misconduct of A rli'ilrntors. 
 
 Held, that the award in this c;ise was had and 
 must be i=ct aside, ;is itajiiR'and that the ail)i- 
 tratora liad rcccivud the evidence of one of i\w 
 parties in the absence of tiie otliers, ."ml after 
 the arhitiati(in was suiijiosed to lie ehised. 
 Whitchj it at. V. McMiilnni, S2 C. P. 4r).3. 
 
 Held, afTirniiiig'the decn c of Proudfoot, V. C, 
 that tlie jilaiiitifl w as entitled to sjucille jierfor- 
 mance of an award giving him damages for his 
 lands t:iken l>y Ihe defendants: thr.t tlie sum 
 awarded was not so ixcessivc as to shtw any 
 frandulcnt or imjiroiier conduct on the part of 
 the arliitrators ; an<l, (jua^ie, vlu tlier, if shewn 
 it would he a defdice in such a proceeding. 
 Norralt v. Caintild Sduthcoi Itditicmi Co., T) A 
 II. l.S. 
 
 8ee f/iirdivii v. 7V/r C'orpordthm of llio Toicti- 
 nhipof Canlij; 29t'hy. ;^0S. 
 
 2. Time for moriii;/. 
 
 On the 2nd ofPt'cendicr, 1S78, the snhinission 
 heing within the i) & 10 Will. 111., the iilaintifl' 
 moved to set aside an award m.u'e on the 13th 
 of August jiieviously, accounting for his delay 
 on the ground that the defendant had, on the 
 4th of Se]itindicr, hefore the end of the next term, 
 served a notice on him of his intention to apjie.il. 
 It was not, however, s\^(>rn thiit he refrained 
 from irioving owing to this notice ; — Held, re- 
 versing the decision of Proudfi'ot, V. ('., that the 
 evidence did not shew that the delay was induced 
 hy the defendant, hut that even if it had, it 
 wonlil have hccn no e.xeuse for the del.iy, and 
 the motion was refused. Pavihe v. Hoi,</, ;") 
 A. R. 1. 
 
 asked the intervention of the court, could not 
 now he heard to ohject. It) 
 
 See lYocn/// V. Canwla Southern Rail icay C"., 
 5 A. E. 13, p. 10. 
 
 good rea- 
 ing m the 
 sed to the 
 he woulil 
 to enforce 
 , Buckmr. 
 
 VIII. Costs. 
 
 It not a]i]iearirg that there wns any 
 son for fding a hill instead of proceed 
 usual way, the court (.Spr.agge, C. ,)refu 
 lilaintifT any costs other than such as 
 iiave licen entitled to had he proceeded 
 the award under the statute. Moore v 
 2fS fhy. 00(j. 
 
 See l/ardivi; v. 71i<' ('uriHiral'inn of the Townshi/' 
 of Cm/ if, 2<j'Chy. 308. 
 
 IX. In Particular Cases. 
 
 1. Arhitrntion of ipuslionx nrUhirt Itclnrm mem- 
 l)erx of Incur jtiircitcd Socicl'iix. 
 
 See Cannon v. The Toronto Corn Kxchange, ."> 
 A. P. 268; L'-'^r.-cn/ v. Court Pride of the Dominion, 
 1 O. H. 59(!. 
 
 ARRITPATOP. 
 
 Si'c Arbitration and Award. 
 
 VII. Enforcing Award. 
 
 In answer to a hill to enforce an award, the 
 defendant hy answer suhmitted to the court a 
 uumljcr of matters as ohjcetions to the award, 
 and that a refeienee back to the arbitrator, with 
 certain instructions, or a reference to the master 
 as to the matters in dis]iutc shoidd he ilircctcd. 
 At the hearing on bill and answer, the defendant 
 objected (1) to the jiiiisdietion of the court, the 
 submission pidviding that the submission and 
 award should be made a rule of the (Queen's 
 Peneh or Common Pleas; (2) that the tiling of 
 the bill was premature, the time for moving 
 against the award not having expired : — Held, 
 that a proceeding to enforce an award by sum- 
 mary ap]ilieation, must he taken after the time 
 for nH)ving against it has elapsed. Jtuorc v. 
 Buckner, 28 Chy. GO(i. 
 
 Quaere, whether a proceeding for that pur])osc 
 by action at law or suit in eejuity, can ho taken 
 before that time. //;. 
 
 Held, also, that the objection to the jurisdic- 
 tion would have ))revailed if juojierly taken, as 
 the parties to the submission had agreed n])on 
 their forum ; but the defendant having submitted 
 o the jurisdiction by his answer, and himself 
 
 ARREST. 
 
 I. On Attachment — See. Attach.ment ok 
 Tin; Person. 
 
 II. On Ca. Re.— .SVt' Capias ad Pesi'DNDEN- 
 dum. 
 
 III. Ca. Sa. — Sec Capias ad Satisfactev- 
 
 Df.M. 
 
 IV. On Xe Exeat— *'<• Ne Exeat. 
 
 V. Writ of Arrf.st -.SVc Writ of Arrest. 
 
 VI. Warrant for Arrest— .SVp Warrant 
 FOR Arrest. 
 
 VII. i AIL— ^c Bail. 
 
 VITI. Malicious Arrest—**' Malicious Ar 
 
 REST, PROSECI TlUN, AND OtIIER Pro- 
 CEEDINliS. 
 
 The general rule that it is against the policy 
 of our law to permit a foreigner to follow an- 
 other into Ontario, and arrest him for a debt 
 contracteil abroad, is limited to eases in which 
 the debtor is here on temporary business, and is 
 
 ■ about to return to his own country. Ihitlcr et id. 
 
 ! V. no.ienfeldf ; Sa-eetzer ct at. v. 'lioscnfeldt, 8 P. 
 
 i R. 175.— Osier. 
 
 i And where the debtor has absconded from his 
 1 own country to Ontario, and does not intend re- 
 I turning, or intends to go to some other country, 
 I the creditor may follow and arrest him here 
 upon a ca. re. //*. 
 
 On an application to set aside an arrest the 
 judge should not emiuire into the particular form 
 
•21 
 
 ASSAULT. 
 
 o<> 
 
 of the action, if satisfied that a cause of action 
 exists. lb. 
 
 A defendant having contracted a debt in the 
 United States of America, his ordinary place of 
 abode, and in the act of returning tliore after a 
 visit to his parents in this country, cannot bo 
 arrested on a charge of Icavii.g Ontario witii in- 
 tent to defraud his creditors. Smith v. Smith, 
 '.»P. R.511— Hagarty. 
 
 Quaere, as to the liability of a mirried woman 
 to arrest. The MctropaUtan Lonv inirl Saviiii),i 
 I'o. V. Mara el ux., 8 I'. 11. 355. — Wilson. 
 
 The jirisoner was arrcste<l in Toronto, upon 
 information contained in a telegram from Eng- 
 land, charging him with having committed a 
 felony in that country, and stating that a war- 
 rant had been issued tiicrc for his arrest : — TTcM, 
 that a person car.iot, under the Imjicrial .Act (> 
 it 7 Vict. c. 34, legally bo arrcstoil or detained 
 iierc for an oflfenco committc<l out of ( 'mada, un- ■ 
 loss upon a warrant issued where tlie ofFfiicc was 
 committed, and endorsed by a judge of a sni)erior 
 court in this country. Such warrant must dis- 1 
 dose a fehmy according to the law of tin's conn- i 
 try, eand Seinble, that the ex))res.sion " felony, | 
 to wit, larceny," is insntHcient. Tlic prisoner j 
 was therefore discharged. Ih'i/um v. Mcllolmi', \ 
 S P. li. 452.— Cameron. 1 
 
 Pefondant was arrested and held to biil for a \ 
 debt alleged by plaintitT to be .S704. lint the ( 
 plaintiff recovered only §489. As to ."*S0 wliich I 
 the plaintiff faile<l to recover, it was htdd, on the ; 
 tacts stated in the report of the case, tliat lie had i 
 uo reasonable ground for believing defendant to ] 
 be liable, and he abandoned it at the trial, but 
 as to the other portion, for which lie failed, he 
 had reasonable ground ; —Held, tlitit defendaat 
 was entitled to tax his co.sts of defence against 
 the plaintifl" under K. S. O. c. 50, s. 3 13. Pv,-- 
 i-itt V. Fi;mr, 8 P. P^. 4.30.— Osier. 
 
 Held, that the County Court Jndtre'a order to 
 arrest was well prctved under 11 S. O. o. fi'2, s. 
 ■J8, by the production of a copy eertitied as such 
 under the hand of the clerk of the court : but 
 that the aihdavit on which the capiaK issued, 
 filed in that court, was not duly ])rove(l by the 
 production of a copy of the atlidavit similarly 
 eertitied ani! with a seal attached, aii]iireiitly 
 that of the e art, but not referred to or deseribed 
 in the certificate. TimmlnK v. Wriiiht, 45 (J. B. 
 •246. 
 
 Notwithstanding the Judicature Act, sec. 90 
 and rule 5, a writ of capias m^.y still be issued 
 under H. S. O. c. (i7, and the ('. L. P. Act 
 before an action has been commenced by a writ 
 of suiumous. Vt'ltcr v. Cowan, 4() Q. 15.' 435. 
 
 On an application to sot aside the order for an 
 airest and tile writ, &c., but not to be diseliarged 
 out of custody, objections that the allidavit dis- 
 closes no suihcii" . P ; ction, or shows that 
 the defendant is about to leave the pnivinco are 
 not open. Buherlaon v. Vuitltoii, 9 P. K. l(i.— 
 Osier. 
 
 Where the atlidavit for the order was entitled 
 in the High Court of Justice, but not in the 
 proper division :— Held, that the objection was 
 clearly amendable, tb, i 
 
 Tlio capias i.ssued after action, was in the form 
 formerly used for the commencement of an 
 action : — Held, amendable. lb. 
 
 The affidavit stated only that defendant was 
 in<lobted in .SlKi.fiO on two promissory noti^s 
 overdue ; but defendant who had left the 
 cinintry, did not deny that he was indelited, and 
 the particulars were stated in the special endorse- 
 ment of the writ of suminons served on him. An 
 atlidavit stating the particuhirs sufficiently was 
 allowed to be filed in support of the order. 
 
 rb. 
 
 See also, ^f(:So)•!('l/ v. Th( 
 Jvhii it al., G S. C. il. 531. 
 
 Minjor, <Cr., of Sl.- 
 
 ArJli::ST, WRIT OF. 
 See Writ ok Ai:ri;st. 
 
 ASHRUPtTOX TREATY. 
 
 Sir ExTR.VDirioN. 
 
 ASSAULT. 
 
 CUIMI.V.M, ASS.VULT— .SV? CRIMINAL LaVT. 
 
 The plaintitr who had purchased a special ex- 
 cur.iion tieket from Toronto to Niagara and re- 
 turn on the same day by a steamer of the defen- 
 dants, and which had been taken up by the 
 purser on that day, claimed the right to return 
 l)y it on the following daj' imder an alleged 
 agreement with the purser, which the latter 
 denied. On the purser demanding the iilaintitr's 
 fare, and the latter refusing to pay it, the porter 
 by the purser's direction, laiil liold of a valise 
 which the iilaintitl' was carrying and attempted 
 to take it and hold it for the fare, whereupon a 
 scullle ensued, and the jilaintitf was injured : — 
 It appeared that the i)urser had been suin- 
 nioiied by the plaintiff before a magistrate for 
 the astsault, and a tine imposed, which ho paid, 
 i'er Wilson, C. J —This under 32-33 Vict. c. 
 •20, s. 45, I)om., t;\ougli a release to the purser, 
 did not constitute any bar to the present 
 action against the company. Emprsun v. '1 he 
 Xhi/ara Xarlyalion Co., 2 O. 11., C. P. D. 
 5-28. 
 
 The defendants were convicted for unlawfully 
 assaulting P. V. "by standing in front of *-!ie 
 iioises anil carriage driven by the said V., in a 
 hostile manner, and thereby forcibly detaining 
 liim, the said V., in the public highway against 
 his will " : — Htdd, that the conviction was bad 
 in stating the detention .as a conclusion and not 
 as part of the charge, which, as shewn by tlie 
 conviction, was merely standing in front of 
 the horses, and diil not amount to an assault. 
 /{'Himi V. McElUi/oti vt ah, 3 ( ». 1{., t,>. Ji. D. 
 535. 
 
 I 
 
 5 
 
 
 i- 
 
23 
 
 ASSI'SSMENT AND TAXES. 
 
 24 
 
 asskssmi:nt. 
 
 I. <>K I)AMA<ii:s— .9(6 Damaoeh. 
 II. Foit Taxes— .SV( Assessment and Taxes. 
 
 J II. (^)'At.III(ATI()N OK VoTKIiS.— .SV« PaULIA- 
 MI'.NT. 
 
 ■23. 
 
 Mr.M 
 
 II. 
 
 III. 
 
 IV. 
 
 V. 
 
 \I. 
 
 YII. 
 
 VIII. 
 
 IX. 
 
 ASSKSSMENT AXD TAXES. 
 
 AsSKSS.Ml'.NI'. 
 
 I. Of Pir-lnlKllll/. 
 
 (a) <>J' luirehj" Cory 
 
 (1.) Shiiix—See Sii'i 
 
 •J. ()/ liii-fiiiii', 24. 
 
 :i. o^" A(/,/,/.v, 24. 
 
 4, yd-i-s'iii'ii to 'inalifij (i.t .'' 
 Miiiiici/Hi/ C'i>iiiii-ili<- .^1 
 
 <irAl. Coupon ATIONS. 
 
 Ai'i'MAi. TO (,'oriiT OF Revision and 
 Col- STY .If DOE, 25. 
 
 SlATlTi; liAIiOlU, 25. 
 
 Taxks when Due, 25. 
 Coi.i.r.ci ION 01' Taxes, 2G. 
 
 C'ol.LECTOl S AND THEIR SURETIES, 27. 
 
 .Sale of Land for Taxes. 
 
 1. Prtiiif of Taxes in Arrear, 27. 
 
 2. Cnnrii LdiKi-. and Indian Lands, 28. 
 
 3. ■•ihi rhrx C'crtijkau, ■'^.9.. 
 
 4. Dictl.-i for, 
 
 (a) />'// irhoni to In' r.ircided, 28. 
 (1)) D(.irription of Land, 29. 
 
 5. Ohjci-I'wna cured liy Statute, 29. 
 
 C). Oilier C(t.se.^, 30. 
 
 MuNif'iPAi, liv-i.Aws FOR Drainage and 
 Se\vei;.s— .S'cc Municipal Corpora- 
 tions. 
 
 Taxes ]!et\veen Vendor and Pur- 
 uhasei! — <SV(' Sai.k of Land — Sale 
 of Land isy Order of the Court. 
 
 I. As.-ESSMENT. 
 
 1. Of Pirmnalhj. 
 
 (a) Of Foreign Corporations. 
 
 The plaintilTs were a company incorporated 
 miller tlie hnjiorial Coinpanies' Acts of IS(i2 and 
 ]S()7, for the purjiose of lending money on real 
 estate or on piililie securities, &c., the registered 
 ol!ice of which Avas in the city of Aberdeen, 
 Scotland, hut having an agency, and the only 
 agency, of the coini)any iit Toronto, Ontario. 
 All the income or prolits of the company arising 
 fioni the business in Ontario, after deducting 
 expenses of management, were remitted by the 
 general managers at Toronto to Aberdeen, where 
 all dividends were declared, and paid to the 
 
 shareholders, who were assessed for income 
 tax nnder the laws of Great Hritain. By 43 
 Vict. c. 27, 3. 1, (>., the personal property of an 
 incorporated company (other than those men- 
 tioned in sub-sec. 2, namclj', banks or companies 
 investing all or the greater part of their means in 
 works requiring the investment of the whole or 
 principal part of their means in real estate, and 
 which are exempt) shall be assessed against the 
 company in the same manner as an uinncorpor- 
 ateil company, or partnership, which, under b. 
 30 of K. .S. O. c. 180, is assessable against the 
 firm at the usual place of business, and not 
 against the individual partners ; and liy s. 3 of 
 tlie 43 Vict. c. 27, all jiersonal projierty in the 
 province, the owner of whicli is not resident 
 tiierein, shall be assessable like that of residents, 
 whetiier in tlie possession or control or in the 
 hands of an agent or trustee or not, and sh.all be 
 assessable in the muuieipality in which such pro- 
 perty sliall happen to be, but by sub-section 3 
 •■his section was not to apjily to diviilends or 
 Jier clioses in action owned and standing in the 
 I r. 'lue 'pf a jierson not residing in the province. 
 Tile corporation of the city of Toronto under the 
 said sec. 3, assessed the plaintiHs for .iiil()0,000 of 
 personal projierty, being tlie interest of moneys 
 investe<l in Ontario, and paid or payable to the 
 agents at Toronto, or at the credit ot the company 
 at a bank, or being moneys lying at the credit of 
 the company in a bank for investment : — Held, 
 that s. 3 of the 43 Vict. c. 27 O., was not ultra 
 vires of the legislature, and that the assessment 
 came within its provisions : that tliis was not 
 one of the cimipanies mentioned in sub-sec. 2 of 
 sec. 1 of the Act, nor was the personal property 
 ilividonds or other choses in action under sub-s. 
 3 of that section. In re Xortli of' Scotland Cana- 
 dian iMorOjo;/,' Co., 31 C. P. 552. 
 
 See the next case. 
 
 2. Of Income. 
 
 The tax imposed by 31 Vict., c. 3(5, s. 4, N. B. , 
 upon "income," is leviable in respect of the 
 balance of gain over loss made in the fiscal year, 
 and wliere no such balance of gain has been made 
 there is no income or fund which is capable of 
 being assessed. There is nothing in the said 
 section or in the context wJ.ich should induce a 
 construction of the word "iiijome," when ap])Iied 
 to the income of a coirmercial business for a 
 year, otherwise than its natural and commonly- 
 acceiited sense as the b.iiance of gain over loss. 
 LawlfsK V. Sidliran, (> App. Cas. 373, reversing 
 judgment of Supreme Court, 3 S. C. I{. 117. 
 
 3. 0/ Lands. 
 
 The nortli part of a lot, called lot 1 in one •nr- 
 vey, and lot 4 in .another, of 100 acres more or 
 less, was assessed variously .as "number I, N. 
 half," &c. "Number I, N. part," &c. "N. 
 half lot number 1," &c., and " liroken lots 1 and 
 4." Tlie collector's roll shewed similar discre- 
 pancies : — Held, that though these irregularities 
 indicated want of care and accuracy in the offi- 
 cers of the luuiiicipality, they did not invalidate 
 the assessment, as the land was sufficiently 
 
25 
 
 ASSESSMENT AND TAXES. 
 
 26 
 
 pointed out. MuKay v. Crysler, 3 S. C. R. 43G, 
 aistinguished. Nellen v. White, 29 Chy. 338. 
 
 See Fleming McNahb, 8 A. E. 656, p. 31. 
 
 See also Vll. 5, p. 29. 
 
 II. ArViiAL TO Court of Revision and 
 
 COUN-^Y J UDGE. 
 
 A County Judge in appointing a day subse- 
 quent to the first of August, for hearing an 
 appeal from a Court of Revision is not, under 
 R. S. 0. c. 180, 8. 59, sub-s. 7, exceeding his 
 jurisdiction, notwithstanding the terms of that 
 sub-section. In re Ronald and the Vill.xge of 
 BrusselH, 9 P. R. 232.— Cameron. 
 
 See Re McLean and (he Corporativn of the 
 Township of Ops, 45 Q. B. 325. 
 
 III. Statute Labour. 
 
 [See 46 Vict. c. 24, s. 2, Ont.] 
 
 There is no liability to perform statute labour 
 in a village municipality, and a by-law providing 
 for its commutation was held ultra vires and void, 
 and was quashed. In re Utayner et al., 46 Q. B. 
 275. 
 
 Held, that a township council can provide for 
 the performance of statute labour upon the roads 
 of their township to the extent of the commuta- 
 tion tax charged in respect of non-resident lauds, 
 and for payment therefor out of the general funds 
 of the municipality before .such tax has been re- 
 ceived from the county treasurer ; and that the 
 performance of such work is not necessarily re- 
 stricted to any particular statute labour division. 
 /« re Allan and The Corporation of the Town- 
 ship of Amabel, 32 O. P. 242. 
 
 IV. Taxes when Due. 
 
 On the 2nd April, 1880, a by-law was passed 
 by the corporation of the city of Toronto impos- 
 ing a rate for that year, and on the same day 
 another by-law was passed providing for the 
 time and mode of payment, declaring that all 
 taxes over 85 should be due on 4th June, and 
 might be paid by three instalments, and that on 
 prompt payment of the first instalment on the 
 said 4th June the time would be extended for 
 the payment of the other instalments to days 
 named, and so with the second instalment, &c. , 
 and on non-payment an additional cliarge of five 
 per cent, was imposed. It was also expressly 
 provided that nothing therein contained should 
 affect or diminish the collector's riglit, when lie 
 should deem it expedient, after a proper demand 
 made, to proceed at any time before the said 
 several days to collect the said taxes by distress, 
 &c. By the statute R. S. O. c. 180, the riglit to 
 distrain is given on neglect to pay in fourteen 
 days after demand ; and such demand shall be 
 made by calling at least once at the party's resi- 
 dence and demanding the taxes. The statute 
 also provided that all taxes levied for any year 
 should be considered to be imposed and to be due 
 from the Ist January, and end withtlic 31st De- 
 cember thereof, unless otherwise expressly pro- 
 
 vided by by-law. The tax collector, about 20th 
 May, left with the plaintitf whose taxes were 
 over $5, a tax bill stating, in accordance with 
 the above by-law, that the taxes were duo on the 
 4th June, but that payment could be made by 
 instalments, &c, ; and that by want of punctu- 
 ality the party would not only forfeit such right 
 but render his goods liable to distress on neglect 
 to pay fourteen days after demand. After the 
 4th June the plaintiff, not having paid any of 
 the taxes, the tax collector, witiiout any further 
 demand, issued his warrant to his l)ailitf who dis- 
 trai Jed the plaintiff's goods on the 12th June, 
 and sold tliem on the 18th June : — Held, that 
 the taxes were not due until the 4th June, and 
 that no demand could be made until that date, 
 and therefore the leaving a tax bill before that 
 date, even if otherwise a demand, could not be 
 deemed to bo such ; and, Qiuere, whether the 
 mere leaving of such tax bill, even if after the 
 4th June, could be deemed to be a demaml. 
 Chamberlain v. Turner et al., 31 C. P. 460. 
 
 Held, also, that the insertion in the by-law of 
 the discretionary power to tlie collector to dis- 
 train wa'j improper and unauthorized. lb. 
 
 Serable, that the rate and the time and mode 
 of payment should more jiroperly have been con- 
 tained in the same by-law insteail of separate one? 
 as here, but as they were passed on the same 
 day, even if an application to (juash the latter 
 by-law on this ground had been made, it would 
 not be deemed invalid. The plaintiff was there- 
 fore held entitled to recover the value of the 
 goods sold. lb. 
 
 Under the Assessment Act, the assessment is 
 for the purpose of designating tlie person to be 
 charged, but no deljt is due until the rate on 
 the dollar is imposed, and the amount of taxes 
 thus iiscei t.ained and fixed. By .an agreement, 
 dated 4th November, 1881, between one Q. and 
 defendants', for the sale of Q.'s business, after a 
 recital to the same effect, the defendant cove- 
 nanted to pay, satisfy, and discharge all the 
 debts, dues, and liabilities, whether due or ac- 
 cruing, contracted by said Q. in conneotion with 
 said business, &c. Q. was assessed for goods 
 sold under the agreement before the making 
 thereof, but tlie rate was not imposed and the 
 amount of taxes ascertained an<l fixed until May, 
 1882, thereafter: — Held, that there being no debt 
 until the rate was struck ii: May, 1882, Q. when 
 he sold the goods should have applied to have 
 the purchaser's name inserted instead of his own, 
 or have expressly provided in his agreement that 
 the purchaser should indemnify him against this 
 amount ; and that the said taxes were not a debt 
 contracted in connection with said business with- 
 in the terms of the agreement. Devamiey et al. 
 V. Dorr et al, 4 0. R., C. P. D. 206. 
 
 [See 45 Vict. c. 28, Ont.] 
 
 V. Collection of Taxes. 
 
 Issue of execution by the Receiver of taxes for 
 city of St. .lohn and arrest in default of p.ayment 
 — Respondeat superior. See ^frSorkl| v. The 
 Moi/or, ,t-e„ of the Citi/ of St. John et'al., 6 S. 
 C. R. 531. 
 
 See Chamberlain v. 
 460. supra. 
 
 I 
 
 Si 
 
 Turner et al., 31 C. P. 
 
27 
 
 ASSESSMENT AND TAXES. 
 
 2S 
 
 ■I'J 
 
 \'\. (;iil.l,i;( KiKS AM) TIIKIU SntKTIK.S. 
 
 A (Icclanition, after Hfttiiit; out the (Iffoiulnnt's 
 iliity as IdWii clcik, iiii<lcr tlu: AsHcsxiiiuiit Act, 
 H, S. (». c. ISO, ill till! inciiai-iitloii of tlio colli.'c- 
 tor'H roll, alliKcd that liu oiiiittc'<l ami iicylfctt'd 
 in certain years, to set ihiwii in Haid collector's 
 rolls for the said years a large niiinher of ])ai'Sons 
 who aiiiieaied hy the assessment rolls liihlo to 
 asBessnieiit, itc. A further breach wa-" that the 
 ilefemlaiit, in hreaeh of his said iliity, did not in 
 xaid collector's rolls, itc. , set down tli's assessed 
 \alue of all jiiojierty liahlu to assessment of a 
 large numlier of ])er.soiis whosi! nan-js w(av set 
 down in said rolls, whereliy the iilaiiitifl's lost 
 large sums of money, jiayahlc to them .'is taxes, 
 and they claimed S'-'OCK) :— Held, declaration 
 had; for that the first hreach did not avor that 
 the omission was inarle negligently, falsely, or dis- 
 honestly, hut merely hy mistake which would 
 not render defendant civilly liable ; while the 
 second breach did not contain any allegation of 
 negligence, bad faith, or even carelcKsness. 
 llehC also, that the period for bringing the action 
 was not limited to two years under H. S, O. c. GI, 
 8. 1. Cor/Kiratioit of /he luivn of I'ftcrborontjh v. 
 Eiliainh, lU C. 1". 231. 
 
 (^>ii,'ere, whether the defendant is only liable to 
 conviction under sec. 18!) of the Assessment Act, 
 at the suit, or upon complaint, of the crown, or 
 to a civil action by the plaintiffs as well. Ih. 
 
 In an action against sureties for a town col- 
 lector for his default in paying over the sum 
 collected by him : — Held, (1) not necessary that 
 the roll should be cortilied, but sntiicient that it 
 was signed by the town clerk ; (2) that entries 
 made by tlic collector on his roll in the discharge 
 of the duties of his ollice of taxes paid to him 
 were evidence against the sureties. The Corpora- 
 linn of thi' Town of Wdlaiid v. Brown, 4 0. E., 
 ('. P. D. 217. 
 
 The jury, without any evidence to justify such 
 linding, allowed the collector a rommission of 
 three and a half per cent, on the taxes collected 
 by him:— Held, that this amount could not be 
 allowed, and that the amount against the sureties 
 must be increased by this amount, less a sum of 
 875, which appeared, by a by-law put in by leave 
 oiithe motion, to bo the proper amount of remu- 
 neration to the collector, on defendants' pleading 
 a plea which would justify plaintiffs' in making 
 such deduction. Ih. 
 
 VII. Sale of Land for Taxes. 
 
 1. Proof of Taxes in Arrcar. 
 
 In a suit commenced by a bill in the Court of 
 < 'hancery, asking for an account of damages sus- 
 tained by certain trespasses alleged to have l)een 
 committed by the appellant (defendant) for an 
 injunction and for possession, the principal ques- 
 tion raised was whether a sale of the land for 
 taxes, which took place on the Ist March, 1856, 
 through and under which the respondent (plain- 
 tiff) claimed title, was valid. 'Fhe evidence is 
 fully set out in the report : — Held, that there 
 was no evidence to shew the land sold had been 
 properly assessed, and, therefore, the sale of the 
 land in question was invalid. [Strong and 
 
 (»\ y.ino, JJ., dissenting]. 
 3 S. C. i;. 4;tli. 
 
 McKay v. Crynler, 
 
 2. Crown Lamln ami Indian IiUndi. 
 
 In September, 1H.")7, a lot in the township of 
 Ki^ppcl, in the county of (iiey, forming part of 
 a tract of land surrendered to the crown by the 
 Indians, was sold, and in 18(59, the dominion 
 government, who retained the management of 
 the Indian lands, is.sued a patent therefor to the 
 plaintiff. In 1870, the lot in question, leas two 
 acres, was sold for taxes assessed and accrued 
 due for the years 18(54 to 18(i'.), to one I), K,, who 
 sold to defendant ; ;ind as to the .said two acres, 
 the defendant became purchaser thereof at a sale 
 for taxes in 1873. The warrants for the sale of 
 the lands were signed by the warden, had the 
 seal of the county, and authorized the treasurer 
 " to levy upon the various paroels of land here- 
 inafter mentioned for the arrears of taxes due 
 thereon and set opposite to each parcel of land,'' 
 and attached to those warrants were the lists of 
 lands to be sold, inclmling the lands claimed by 
 plaiiititr. The lists andthe warrant were attached 
 together liy being pasted the whole length of the 
 top, but the lists w-ere not authenticated by the 
 signature of the warden find the seal of the 
 county. By s. 128 of the Assessment Act, 32 
 Vict. c. 3(), Out., the warden is required to return 
 one of the lists of the lauds to be sold for taxes, 
 transmitted to him, &c., to the treasurer, with a 
 warrant thereto annexed under the hand of the 
 warden and seal of the county, &c. : — Held, 
 affirming the judgment of the court below, 
 (1 ) That upon the lands in question being surren- 
 dered to the crown, they became ordinary un- 
 patented lands, and upon being granted became 
 liable to assessment. (2) That the list and war 
 rant may be regarded as one entire instrument, 
 and as the substantial requirements of the statute 
 had been complied with, any irregularities had 
 been cured by the 156th section, R. S. O. c. 180, 
 (Fournicr and Henry, J J., dissenting;). Church 
 v. Fenton, 5 S. C. R. 239. 
 
 Where the crown-land commissioner had er- 
 roneously returned certain lands to the munici- 
 pal oflicers as patented, whereas, although a 
 patent had been prepared, it had never been in- 
 tended to be operative, nor been delivered to thi' 
 grantee, \^., who had paid only part of the pur- 
 chase money, and the lands were afterwards sold 
 for taxes : — Held, the tax sales were of no vali- 
 dity as against M., to whom a patent was subse- 
 quently issued. O'Oradijv. McCaffray, 2 0. R., 
 Chy. D. 309. 
 
 3. Sheriff's Certificate. 
 
 A sheriff's certificate of sale for taxes is made 
 for the purpose of giving the purchaser certain 
 rights, in order to the protection of the property, 
 until it is redeemed or becomes his absolutely, 
 and forms no part of his title. The description 
 in it being (lefective does not invalidate the 
 sheriff's deed, nor, Semble, would its absence. 
 Nelles V. White, 29 Chy. 338. 
 
 cured. 
 
 4. Deeds for. 
 
 (a) By whom to he execid-ed. 
 
 The proper officers to execute the deed of land 
 sold for taxes are the warden and treasurer at 
 
■2'J 
 
 ASSESSMENT AND TAXES. 
 
 30 
 
 tin; time tliu ilucd is (Ifiniinlod, iKit tlio iicrsiins 
 holiliii," tliiisj <ilHi'('s lit tlio tiiiiu of the sale, 
 Fi rjnxiiii V. Fiu'i'iiKiii, '27 i'Uy. '211. 
 
 (b) JJcKcrijition of Land. 
 
 Helil. tli.it tiic words " lu! tli(i same more 
 or less," f(ill()wiii;,'tlie ili.'seriiitioii of the (juiiiitity 
 ot laiul, iiiiiiroperlviiiMii't'd in the slu'rill's cIcimI, 
 iiii^'ht Ih; ri'jected as surplusage. iXc/lt'n v. iVIiiti; 
 29 Chy. XM. 
 
 See Jun/itson v. FirciiKiii, 27 Chy. 211. 
 
 .'). Oltjci-timis ntri'd hi/ Statitlp,. 
 
 Quiere, (jum- Si)r:i','L;o, (". ,) whc^thor the provi- 
 sions of su( tioii 15.") of the .Assessment Aet of 
 ISIilt ai)i)Iy whore a sale of 1 md took plaee hefori; 
 the Aet, l)ut the deed w is not executed until 
 after ; or whether it applies only to a ease where 
 lioth were i)efore or both after tl.e enaotmont. 
 Fi')'ijUM>ii V. FccciiKtn, 27 Chy. 211. 
 
 Per Fournier, Henry, ami «iwyiinc, .T.T. — 
 Where it .a[)pe irs that no piirtion of the taxes 
 has been overdue for the period presoinlted by 
 the statute under whicii the s de takes place, the 
 sale is invalid, and the defect is not cured by 
 M. lu.Oof 32 V'ict. e. Uli, Out. .Stronj,', J., dissent- 
 in;,', lioldin,' that s. 15,5 apjilied to a case wiieru 
 any taxes were in arrear at the date of the sale. 
 McKuijv. Cn/nlcr, 3S. C. R. 4H(>. 
 
 Qua-re, whether since 'Mi Vict. c. .3(5, and pre- 
 ee.ling statutes, when some taxes are in arriiar, 
 but a sale has been m ide for more, the defect is 
 cured. Nelks v. Wliilc, 2!» Chy. 3:W. 
 
 Ejectment under a tax deed by the assi^rnee 
 of tlie pureha.ser, who wis the township clerk, 
 i'lie sale was for the taxes allej^ed to be due for 
 ine years 1871 and 1872. in the assessment 
 roll for 1871 the land was described as the " .S. 
 pt. 12, 58 acres; "and for 1872 .as "S.E. pt. 12, 
 .■|3 acres;" and itappcaredtliat the land, whether 
 tikcn as the south ur south-east part, included 
 portions of the lot owneil respectively by F. ami 
 ('., and on which they had paid their taxes ; and 
 also certain lots of a ''agu laid out on part of 
 12 : — Held, that the plaintilFs title failed ; for 
 that the assessment was illegal. I'er Wilson, C. 
 .1., also that the evidence, set out in the report 
 of this case, shewed that the defendant hail, as 
 between himself and the inunicii)ality, paid the 
 taxes upon his part of the lot : — Held, also, that 
 the defect was not cured V>y s. 1.55 of the Assess- 
 ment Act of 18li8, 32 Vict. c. SG, Out. Jkckett 
 V. Johnston, 32 C. P. 301 . 
 
 Where it aj)poared that, as far as the county 
 treasurer was concerned, all the steps taken by 
 him in regard to the sale were regular, and 
 authorized by 32 Viet. e. .SO, and that the sale 
 had taken place for taxes actually in arrear for 
 the required length of time, followed by a tax 
 deed thereafter, which had not been cpiestioned 
 within two years :— Held, that the sale and deed 
 were not afterwards impeachable, although it was 
 not clear on the evidence, whether the county 
 clerk and the assessor had or had not properly 
 com])lied with the reijuircmeuts of sees. 1 1 1 and 
 112 of the said Act. SmUli v. The Midland 
 Railway Company, 4 O. 11., Chy. D. 494. 
 
 H( Id, that 1!. S. (). c. 180, a. 10.5, does not 
 apiily in a case where there have been no taxes 
 in arrear at thi; time of the sale of the laud for 
 taxes. Vhai-lhin v. Watnon rl al., 4 C). K., Chy, 
 L». 489. 
 
 See Mc.Vah v. IWr H al., 32 C. P. 545, p. 31 ; 
 Ohuir/i V. Frnlim, 5 ,S. C. H. 239, p. 28. 
 
 0. Olhir CasM. 
 
 Where a saleof lands for taxes h id taken place, 
 and a suit w.is snbsi^ipientiy instituted by the 
 purch.aser to set .aside a eoiivcyanee to the defen- 
 dant execiiti;d after the registration of his own 
 deril and the defeinlant impeached the deed 
 executed in pursuance of such sale, it was shewn 
 that a warrant had been at one time in the (Jourt 
 House, a portion of wiiieh was destroyed l>y lire, 
 and that on that occasion the warrant had l)eeii 
 prol)ably consinned : — Held, aulliiMent evidence 
 to authorize the court in .admittin:,' sooondiry 
 evidence of its contents ; whicli, on Ihuul; taken 
 established satisfactorily the existence and con- 
 tents of siicli w.arr.mt : and, on rehearing, an 
 ol)jei;tion l)eing raised which hid not been taken 
 at the original hearing, that the towiishii> or 
 county clerk shoal 1 have Idiencillcd to produce 
 or iiegitivii the existence of a duplicate of such 
 warrant :— Held, that if smdi jiroof were neces- 
 sary, adidavit evidence to sliew what was the 
 fact should bo received. Funiii-son v. Frecmnn, 
 27 Chy. 211. 
 
 Under s. 1 of .37 Vict. c. 15, O. a tax deed is 
 valid and binding unless cpiostioned before a 
 court of com))etent jurisdiction within two year.s 
 by .a person interested. One O. , the defendant 
 herein claiming under a sherifTs deed, given 
 under an execution ag.aiiist lands, and also under 
 a deed from one M., tiled a petition under the 
 Quieting Titles Aet within two ye.ars from the 
 oI)taining of a tax deed by tlie plaintiff, who 
 became contestant in the proceedings, and liled 
 his claim under the tax deed, but, on the oppo- 
 sition of ()., afterwards withdrew and abandimed 
 it. Afterw.ards an order was made by the referee 
 dismissing (). 's petition, whicli order was affirm- 
 ed by a .ludge on appeal, as she had failed to 
 make out anything. At the time the execution 
 issued under which O. jnirchased one of the par- 
 ties to the suit was dead, and the interest of the 
 others had passed to M. by conveyance from 
 them to M. in trust to sell and a])ply the pro- 
 ceeds to pay their creditors, and the <leed from 
 M. was a breach of trust by M. with O.'s know- 
 ledge : — Held, that O. w.as not a person interested 
 within the meaning of the Act, for that one of 
 tlie parties being dead the sberiflf's deed conveyed 
 nothing, aid neitherdid the deed from M., being 
 a breach of trust :- Per Osier, J., the proceed- 
 ings under the Quieting Titles Act were a ques- 
 tioning of the deed within the meaning of 37 
 Vict. c. 15. Per Wilson, C. J., the proceedings 
 had no such eflTect. as the questioning must be a 
 successful questioning. McNab v. Fter at al., .32 
 C. P. 545. 
 
 Held, that the purchase under a tax sale 
 by the township clerk was a voidable trans- 
 actiim ; and per Wilson, C J. , the plaintiff, 
 on the evidence had, or must be .assumed to h.avc 
 had, notice of the iufirmity of his vendor's title ; 
 
 c: 
 
 i 
 
 ft 
 
 .1. 
 
 
31 
 
 ATTACH MKNT OV Di:UTS. 
 
 32 
 
 Imt, |)(!r( iNlrf, .1., there wjim no Hiilliuii'iitovidLUuo ' 
 «il' notice. IxiLrll SI. JiihiiKlon, 'A'H.'. I'. HOI. i 
 
 The iiHHi^MMiieiit r)f four lots, eoiitiiiiiiiig about 
 4(!() auus ill tlie iiaine ot' the plaiiitil) eliilnvieecl 
 Htvcii Hi lis ;ili'i .\i\\ sold aiiii hi jiiiali ly iiHses.itil, 
 ol wliieli liiet till! asa»:s»ol' WiiH awiiru. Tlie lie- i 
 l( iiilaiit |.iiiiliaMil at :i Niile tor taxi h, iiinl tin.' 
 |j!aiiitll1 liistUilteil |]|iieee(lilij^>. ililpeaeliill;.' llie 
 hale witliili luo >ealM tliiileatter : llilil, illillii- 
 1114 the jiiil^iiuiit ipf the Coiiit li. low, tluit the 
 lihrtuisxiiieiit »as illegal, ami vili,ileil the sale. 
 Hemiiiij V. Mr.Wilih, H A. !>. (I.'iti. 
 
 Tlie liuiiiiei|ial eorpolation ol the cuillity of 
 H. ill the |j|d\iiiee ot (,)iieliee, iiiaile an aM.scss- 
 liieiit roll .leciirdiii;; to law, in \S'I)1. In iH'.'ta 
 tiiennial a.-^.'^i n>iiKnt roll was made, and the iiro- 
 perty .siilij(il to assesHiiunt w.is assessed at 
 !|jil,74r>,.'KS.S..").S. In l,S7<i, without deelaiiiif,' that 
 it was an aim iidMieiit ol the rolloi IS7'), Iheeor- 
 jioratioii made another assissinent in wliieii the 
 |iio|ieily w;.s assessed at J^.'i, l''S,o."if). AiiKriig 
 the |iid|K'ities that eontrihiiled towards tiiis 
 migliieiitalK.il WHO those of a| pi Hants wiio, hy 
 their Jii tilioli, or M(|llete lihellc e, addit used to 
 the .Superior Court ot (.hieliee, aikm'd that the 
 aeen^taiy-lieisurer of the county of 11. wasaliout 
 Melliiij,' Lheir real estate for ta.xes under th : pro- 
 vision.-i ol the mnnieipal cede for the jirovineeof 
 ((•uelieo, 'M \'iet. e. (ifi, s, illlS et sei|,, ,ind prayed 
 to lia\e the assi ssmeiit mil of KSTd, in virtue of 
 whieli till; litiner ol the niiini<ipality w.is pro- 
 eeeding to sell, deelaied invalid ami null and 
 void, iiml tl.at a writ of [noliiliiiion should issue 
 to iireveiit the respondents troni proeeedin;; to 
 Hell. The ^llp^lior ( ourt dimted the issue of 
 the writ restr.imiii;; the defind. iits as prayed, 
 I. lit upon the merits, held the roll of If^Tli valid 
 as ill! Jill 1 1 (.mint ol the roll oi 187"'. The 
 Coiirtot (jliieeirs Heiieh reversed this jud;.;iiieiit 
 on the merits, ;ind liidd the roll cjf l,S7li' to lie 
 snlistantially a new roll, and therefore null ;inil 
 void : lleld,|iei lleniy.'r.iseheieauand ( i wyioie, 
 .I.J., aliiiiiiinj; the judgment o' the Coiiit of 
 <j>ueen's I'em li, lii.it the roll of 187(1 not heiiijj 
 II triennial assesMiieiit roll, or an anuiiilliient of 
 Hueh a roll, w.is illegal and null, and that re- 
 Hpoiidenls W( re iiitilled to an order from the 
 Superior Ccpiiit as prayed for to restrain the 
 inuiiieipal corpor.itioii from selling' their jiro- 
 Jierty, and the wiit whieli issued, whether eor- 
 leetly styleil "viit of pnihiliition'' or not, wa.s 
 iiioperly isaiieil, and should lie maintained. I'er 
 Jtitehie, C.J., Strong' and Foiirnier, ,M., that a 
 writ 01 piohiliition issued under iirt. IdXI, as 
 was the w lit issued in this c. se, will only lie to 
 uii interior tiihunal, and not to a niuiiie'i]ial otiicer. 
 The eourt luing equally divided, the judgment 
 appealed from was toiiliriiied, hut without eosta. 
 ( 'ol6 et al. V Monjan, 7 S. C. 11. 1 . 
 
 Umler the Assessment Act of ISCO, ;12 Vic 
 ch. 'M\, the lands of railways might be sold for 
 the mm p.iyiueiit of ta.\es. Sniit/i v. I'/ic Mhl- 
 Imul Ji'in tnn/ ('0111/111111/, 4 O. ]{., C'liy. I). 4i)4. 
 
 See Cli(irl/n}i v. lld/.wH ct al., 4 (). R. 489. 
 
 ASSHi.N.MHNT. 
 
 I. I'oit TIIK ItK.NKKII' OK C'RKDITOHS— iSf 
 MANKKII'irV AM) In.SOI.VE.NCV. 
 
 II. l''liAI I fl.KN'f AssriiNMI'INT- .SV'' HaNK- 
 
 itri'icv AMI Insoi.vkncv - I'iiauui- 
 
 I.I.M' ('dNVKVANI'IIM. 
 
 111. Ok (ioon.s AM) ('iiAiTiii.s.SVc Bills OK 
 
 .S\I,K A.M» ('llAll'ICI, iMoltTliAliKS. 
 
 I\'. Ol- Ciiosis IN ArrioN— ,SV« Ciio.sE in 
 Aciio.s. 
 
 V. Ok MoiiiiiAtiK.s— .SVt- Moktijaoe, 
 
 VI. Ok 1'aii;nis -.Vpc 1'atk.n r ok Invkntio.n. 
 
 \ll. Ok SiccuurriKK .Vce rmNcirAL and 
 
 fSi:KhTY. 
 
 K<|uitable assignment of goods. See Mi'M(i«tir 
 H ill. V. Viirhuid H al., 31 C. 1'. 3'20 ; 8 A. ]!. 
 I. 
 
 Absolute .issigiiinent of bond iiiteiuled as ii 
 security only. See Liriiij/nlon v. ]Vuu<l, 27 Chy. 
 r-IT). 
 
 II. What .may hi; ArrAciiKi). 
 
 A debt is gariiishable where it consiata of 
 See AisSF.ssMi'.NT and Taxks -AhMcii'Ai, CoR- I money due under an award .Mid decree of tbc 
 
 Court of C'Laiicery, although the full uinouut i» 
 
 ASSESSMENT ROT.L. 
 
 POHATIONS— FaRLIAME.NT. 
 
 ASSURANCE. 
 
 .SVr I.N.SL'ItANCi;. 
 
 ATTACHMENT OF DERTS. 
 I. Who may Ari'Acii, 32. 
 
 II. \\ HAT .VA^' liK AlTACIIKI), 32. 
 111. I'lXAMINATION OK JUDU.MKNT DeIITOH, 34. 
 
 IN'. l'UA( rni:, 3r>. 
 
 V. I.N IjIVIsIOnCoIHTS ,SV7' I.)lVISIONCofRTS. 
 
 I. Who may ArrAtii. 
 
 Held, that a judgment creditor, whose judg- 
 iiiciit is lor costs only, cannot examine his jiidg'- 
 meiit debtor under R. S. O. e. TiO, s. 304, nor 
 g.iiiiish debts due to him. (Ihent v. Met'ull, 8 1'. 
 R, 428.-- Daltoii, i). C. 
 
 A juilgiiient creditor in such a case may c.\ 
 amine his judgment ilebtor under K. S. O. e. 4!l, 
 s. 17. III. 
 
 A defendiint who lias obtained executions upmi 
 a rule ot eoiiit for the judgment of costs of tbi' 
 day by tlii; jilaintitl', is under I{. S. O. c. 07, s. 
 12, and c. (id, s. 72, a judgment creditor, anil 
 entitled to g.irnisli moneys due by the plaintill. 
 I'lllUit V. CaiiiH, !) 1'. R.30.— Ualton, Master— 
 Osier. 
 
 See Liaiiiiiii/ v. Wooii, 7 A. R. 42, p. 34. 
 
a.-j 
 
 ATTACH MKNT UK DKllTH. 
 
 34 
 
 nut .iHiM rtaiiiud by rt'ftHfiii (tf tliu (iohIh iKit li.aviu',' 
 l)L(ii t:ixi(l. In re Salo v. //iililinnl, 8 I'. U. 
 4J,"). Osier. 
 
 Wlicii till! uinouiit in micli a i.';ihu \h liniilly iin- 
 Ofrtaiiitil, cxicution may U: i^.sinil ii^'aiiist tlic 
 j,'arnislu'(', ivltiinugli \\v still ilismitiM his lialiilily, 
 and tlio juilgu is not bound to dircut an isNUu. lit. 
 
 In p'lrniHlieo ]tro(:ct'diiigH a (unirt of law will 
 
 as aj,'.iiiist the attaching C'rcditor, jn-otcct an at- 
 
 (.'hose in ^I torm v'm litn for costs of tin; attion or suit in 
 wliiili, or by which the debt attached has liccn 
 rccovircd where the garnishee has notice of the I 
 lien. ('iitKiilUiii liitiikof Coiiuiwire v, Crnitr/i, H 
 I'. \l. 4:17. -Osier. 
 
 A convt of eijuity will restrain a i inlitor who ' 
 has obtiined an attaching order at law I'roin en- I 
 forcing it against a IiukI reiM)Vcrcd by means of I 
 a suit in ei|iiity to the i)rejndice of the attor- 
 ney's lien lor costs in that suit. //>. 
 
 The plaintiir claimed to bo a creditor of ()., | 
 and as such liled a bill, alh^ging that (». was | 
 mortgagee or otherwise entitled to some interest 1 
 in the lands of M., and that O. was aliout todis- I 
 |K)se of his interest therein in ordii' to ilcfc^at tiie 
 claim of the plaintill', and |irayed an account of 1 
 what was <lue by <)., and to restrain M. from 
 paying ().. and also an (udcr for M. to pay plain- 
 tilt'. At tlic hearing the court (Spragge, (".,) 
 liiaih; a decree referring it to the m.ister to 
 ascertain what was due by <). f o llie pi ii;itiU', 
 and if anytiiing found duo tiial ( ». .'Iididil lie 
 onli'i-ed to ]iay the amount due to tin: iilainlill', 
 willi costs, but dismissed the bill, .as .ig.iinst M., 
 villi costs. Mciiz'nn V. tjijili'ic, '2' Chy. -loli. 
 
 S. purchased lands with moneys payable to him 
 by the crown for work done und( i' a c(jntract, 
 which lauds he had conveyed to his wile : Held, 
 thai although the moneys could not be rc.iched 
 by garnishing them befiu'e being paid by the 
 criiwn, yet that the money having passed out of 
 tjie crown, by reason of the husband's appoint- 
 ment in favour of his wife, the ellect was to de- 
 fraud creditors, and the gift was therefore void 
 under the statute of Elizabeth. Nii'linL-n,!! v. 
 Slidtiniin — Mel'/icmoii v. iS/iannoii, "28 Chy. 378. 
 
 'I'he plaintilFs, who had recovered judgment 
 against the defendant, W., fdcd a bill alleging 
 that W., being the owner of lands subject to a 
 luiii tgagc, conspired with his co-dcU iidaiit where 
 by a second mortgage was executed by \V. to one 
 A., who paid the money to the co-defendant, 
 which was held by him as agent or trustee for 
 \y. The lands were subsc(jueutly sold in a suit 
 by the lirst mortgagee, and realized sulilcicnt 
 to pay the two mortgages only. The plaintill's 
 liroved their claim in tliat suit in the master's 
 I'llice. but received nothing. They alleged that 
 they had been led to believe that the mortgage 
 by W. to A. was bon;\ tide, but liad ascertained 
 that such was not the fact ; and prayed that the 
 CO <lcfendants might bo ordered to pay over the 
 aiiiount paid out of the proceeds of tlie land to 
 satisfy the mortgage in favour of A. : -Held, 
 that the bill was in efl'ect one to garnish the 
 money due to W. in the bands of his co-defen- 
 dant, and under the authority of Horsley r. Cox, 
 fi. U. 4 Ch. 92, and St. Michael's College v. 
 Merrick, 1 A. R. 520; S. C. 2G Chy. 21(), 
 could not be maintained. OikhrUt v. Wiliii, 28 
 Chy. 425. 
 3 
 
 (i. was entilled under the will ol C. to a life 
 estate in land, and to the proceeils ol peiNon- 
 ally to be paid to her by the exeiiitors. .)u<lg- 
 nieiit creilitors of (t. had had a M. fa., goods 
 returned nulla bona, Imt h.id not sued out a li. 
 fa. lands, when a receiver w.is aippointed to the 
 estate of C, whercuiion the judgnumt ei'cditors 
 by petition, before the passing of the ( bitario 
 dudicature Art, applied for an order that the 
 receiver might be directed to ]iay their judgment 
 out of (J.'s money in Ids hands; or that they 
 might att eh and sell (l.'s life est.ite or, that 
 the teiia 1 < of the realty nright be directed to 
 attorn to -he petitioners and that tiny might be 
 put ill ri'ci-ipt of the rents and proiits ; ilehl, 
 (on ap|ie.il fi'.iin I'roudfoot, \'.('. ) that suidi peti- 
 tion h.'id been pro|ierly dismissed, for the credi- 
 tors Were not in a iMisition when they presented 
 it either to garnish the p( rsonal estates, if th.at 
 could lia\e be'eii done under the A. •!. Act, l87i'{, 
 or to seize the real estate under execution ; and 
 ;.'.i:y had therefoi'e no rights which the appoint- 
 ment of a leceivi'r intei-l'ered with. lint. Held, 
 lolhiwiiig lie Cowans' llstate, I-. K. 14 ( h. I). 
 (i.'tS, lli.it the pi titioueis might now gaiiiish the 
 moneys in the h.ands <i| the receiver ; .ind it be- 
 ing allej.:ed that a li fa. lands had since issued, 
 the eouit upon payment of costs gr.inted le-ave 
 t<i till! iii'tilioners, under the ]ir,iyer tor general 
 relief, to sue out such writs as they niiglit be 
 advised. J./'Uniiii'i v. H'aoii, 7 A. K. 42. 
 
 Held, allirmiiig the judgment of Armour, J., 
 that a negotiable promissory nott', not yet due, 
 is not a (lebt which may be attichcd within the 
 meaning of llule 'MO ni the O. J. Act. JarLson 
 
 V. r,(.s.s;r///, 2 0. 1;., (l B. 1). 521. 
 
 The defendant's father devised his estate to 
 trustees upon the trust, among others, " to pay 
 my son A. (the ilet'emlant) the interest of the 
 sum of sSOO annually during the term of his 
 natural life." An order was nnido by the master 
 in Chambers, diricting the trustees to p.iy over 
 the interest from time to time accruing, to tho 
 jilaintid', who was a judgment creditor of the son. 
 Lloi/i/ v. iWMici; [) V. K. 335.— Dalton, Mastn. 
 
 111. l^xAxiiNATioN OF Judgment Debtor. 
 
 AVhere a judgment debtor disobeyed an order 
 for his examination, he was dircctcil to jiay tho 
 costs of an a|iplication for a ca. sa., although the 
 niotioii was dismissed upon his giving a sullicient 
 excu.se for his disobedience, hiivcrial Bunk v. 
 Dirb'!/, 8 I'. K. 24, (J. Calt. 
 
 In examination of a judgment dclitor iiiuler 
 R. S. (). c. 50, s. 304, the ol>ject of the cnijuiry 
 is to shew what property or means tin; debtor 
 has at the time of the examination which can bo 
 made available to the creditor, and the empiiry 
 is not restricted to the period of the contracting 
 of the debt, but it nuiy be shewn that at some 
 anterior time, no matter how far back, the debtor 
 had property, as to which he may be re(|uired to 
 give an account ; and it is not a sufficient answer 
 to the cmjuiry merely to say that it has all been 
 disposed of before the debt was incurred. The 
 Ontario lUmk v. Mitchdl, et al., 32 C. P. 73. 
 
 The defendant recovered judgment against the 
 plaintill' in the action for his costs of defence, on 
 a jiulgment of nonsuit : — Hehl, that the plaintiff 
 was not a judgment debtor, examinable under s. 
 
 c: 
 J' 
 
 
 5- 
 
:{:) 
 
 ATTAriFMENT ()K THE PERSON 
 
 M 
 
 17 I!. S, (». c, W. i<r H :i()l I!. S. (t. .■, :,(), oriul.; A'ITA( MMKNT OK TIIK »!(M)1)S OK 
 
 :«;<; O. ,l. Art. .M<'l.ii<'liliii r. hl;i<'klMirii. 7 I'. I< 
 '.'.S7, iliM'^iiitnl fmiii ; l.iivfll r (;ilpH(iii, (•> I'. It 
 IH'.', (•(iimiii'iitcil iiiMPii. M'-i/i rs V. Knnlrii'l:, !l 
 P. II. -.WX OMJ.r. 
 
 .S,.(! <!hn,t V. .U.f'-//, H I'. I!. 4'JH, 1,. :(•_'. 
 
 IV. rii.v( iiiK. 
 
 Wlicll scivili;,' .\ (Icfciiihuit witli ,ill oriliT tn 
 cxaiiiiiic liiiii :iH .'I iiiil;^'iiii'nt ilditdi-, it i^^ not 
 iR'i'cs^i.iry t'l txliiliit tlio iiii;;iiiiil order, iiiilcs.s 
 <l('in.'iiiil<'i|, ill onli'r to ciilillt; the |ilMiiitiir tii 
 iiiipvi' for II cii. Hii. ug.iin.st liiiii, under It. '^. O, 
 c. TiO H. :i(»,"i. /;/(//' )•(•((/ ISiiiih V. Difhii, 8 I'. U. 
 2411. -diilt. 
 
 The .ilhil u it on whieli to olitiiiii iin .att.iehiii;,' 
 order iM.iy lie ni.id ■ liy tie' :ittorney of the jiid;^ 
 iiiunt creditor, or l)y ;i [pirtner of the iittorney. 
 Sunilile, til it jn'oeeedinj^.s on HUidi order uoiild 
 not lie |ii'idiiliited on the ^'roiiinl th.it it was 
 founded on :i defeetive iillidivit, tli.it lieing .a 
 mere ni.itterof |ir;ietiet'. In ri'Sulow llulihnrd, 
 8 I*. It. 44"). -Osier. 
 
 I'rooeodinj{n were taken liuforo a county judj^o 
 to ;.;:iriiish eert.iin money s, jiayalile hy the eonnty 
 to the plaintitl', a" elerk of the peace and eiMinty 
 Crown .ittoriu'y, and wliieh moneys that ,jn<li,'e 
 ordered to lie attaelieil in favour of the .'leditor, 
 the ])resi lit defendant. 'riiereu[)on, tint ilolitor, 
 the defendant in tliose jiroeeediimH. filed a bill in 
 this court, seekiny to restrain further action on 
 such onler : -Hcdd, that this court had no juri.s- 
 dictiou to gr.int the relief .isked ; that tin; jtroixir 
 jilacc to oht.iin such relief w.is liy a[i[)eal to tint 
 Court of .'XiukmI ; iiinl, without determiniiii.' 
 whether the ehiim of the debtor a;^ainst the 
 county, was such as could ho garnished, the 
 court (I'roudfoot, V. ('.,) rofu.sed the motion for 
 injunction, with costs. Vnn Normnn v. (Iraiit, 
 27 Chy. 4!»8. 
 
 Held, that there is no aii|u'al from an order 
 made in garnisliee procciMlings in a ( 'ounty Court, 
 under R. S. O. c. 50, a. .313, ajijieals from county 
 Courts hcing expressly limited to the cases men- 
 tioned in s. ',VS of the County Courts Act. Sec. 
 200 of the C. L. P. Act does not give a general 
 appeal from the County Courts being controlled 
 by the subdieading preceding s. 189. Sato <:t al. 
 V. lluhhanl, G A. 11. 540. 
 
 Semblc, the question of the validity of a judg- 
 ment should not be argued on the return of a 
 garnishee summons, but should be raised on 
 an application to set .aside the execution. ElUol 
 V. CapeU, 9 P. R. 35.— Daltou, Master— Oalav. 
 
 Held, that under rule 359, O. J. Act, an 
 appointment signed by the examiner, and not 
 a copy, must oe served on the person to be 
 examined. Mfijers v. Hendrkk, 9 P. R. 303. — 
 Osier. 
 
 An examination under A. J. Act, ss. 17, 18 or 
 of C. L. P. Act, s. .304, can only be taken under 
 a rule of court or judge's order. Ih. 
 
 See Canadian Bank of Commerce v. Crouch, 8 
 P. I{. 437, p. 33. 
 
 OKUTOHS. 
 
 AOAIN.ST AllMCONDIMI l)Kirr()II.S — .Vm Aii.-«'onii- 
 
 I Ml DK.iirou. 
 
 ATTACH MKNT OK TlIK PKIISON. 
 
 I. Koii (/'oNTKMi'r OK Cm nr, 3ti. 
 
 II. l''oU Nos I-UohlcllON OK Doi'lI.MKNTS oil 
 AlColNT.S. .'{7. 
 
 I. l''oU CoNTKMrT ()!•• CoiUT. 
 
 A married woman, a judgment debtor, who 
 refuses to attend and be I'xainined as to her 
 estate and ell'ects, or refuses to disidose her pro- 
 I perty, or to give sat i-- factory answers to i|uestniiis 
 I undir It. S. O. c. .V), ss. 3()t, 30."), may be com 
 mitted for disobedience of the statute, notwith- 
 standing the |{. S. O. o. (!7, s. 3. .]fi/r'i/)ollliiii 
 Lull/I iiiid SiiriiiijK Cu. V. Miini vl it.r., H P. It. 
 3,").") -Wilson. 
 
 The order for commitment in such ease is not 
 mesne or final proces-i, liit punishment for (lis- 
 obeiliencc of the statute. Jh. 
 
 Qmere, as to the liability of a married wonian 
 to arrest. //>. 
 
 A deputy sherifT was arrested under a writ of 
 attaelimiMit for default in obeying an order upmi 
 liis slieriir to deliver up to the claimant, who had 
 succeeded on an interpleader issue, the goods, 
 itc, sei/eil. Upon a motion by the deputy to 
 be diseinrged from custody, it was shewn that 
 his noncompliance with the order arose from a 
 difficulty in which he found himself by reason of 
 the cl.aim of anotlier person who had succeeded 
 in an issue about the same goods, and not from 
 any dedibcrate intention to disregard the order ; 
 and his discharge was ordered. Semble, that 
 the motion shouhl have been for leave to admin- 
 ister interrogatories to or for the examination of 
 the person committed, and for a habeas corpus. 
 //( re Maitlaiid, Uunllwr v. Vooh; 9 P. R. 400.— 
 Osier. 
 
 The sheriff of Oxford, in executing a writ of 
 replevin, was obstructed by tlie defendant, who 
 rescued the goods. On complaint of the sheriir's 
 officer, they were summarily tried before a Police 
 Magistrate and fined, under 32-33 Vict. c. 32, by 
 which it is declared that any person dischargeil 
 or convicted in such a case shall be released from 
 all further or other criminal proceedings for the 
 same cause. A motion afterwards made by the 
 plaintiff to attach the same parties for contempt, 
 was discharged, but without costs. Haywood el 
 al. V. Hay et al., 46 Q. B. 562. 
 
 Pending the injunction in this case, (see 4 0.1? . 
 p. 60), one P., who was not a party to the action, 
 but was a member of the plaintiffs' association, on 
 behiilf of the association, hired one H. to work 
 for him. McCord and Jenkins, members of the 
 defendants' association, but not parties to tiie 
 action, hearing of this went to H. and induced 
 him to refuse to work for P. and to leave 
 
3fl 
 
 :)7 
 
 ATTORNEY ANP SOLTC'TTOR. 
 
 38 
 
 litor, who 
 !in to her 
 10 her |)ni- 
 
 ) l|Ul'stlllIH 
 
 y l)(' com- 
 ', iiotwith- 
 '■Ir'i/inlif'iii 
 •., H I'. It. 
 
 'roroiitii. Till cimrt. wan of iiiiiiiioii tliat M. and 
 •Mw of tlic injiiiictinn |n!iiilinj,' at th"> tiiiif. 
 ihiiiitiK.s dill nut st.iti' liy their writ that 
 ,,,,y iiii'd ill any ri'|M'i'm'ntativi' chara-'tiT, nnr 
 dill tlii-y Mini tliu ihfcndaiitM in a rcinrHciita 
 tivi! (M)in|iaiiy, luitthr plaintilli' allidavits .stati'd 
 that tliL' iilaintill'M ri'|iri'sriittd tin ir asHiM'iation ' 
 and tin; di'ti'iidants, thi'ir'*. t hi iiiiitinn t" I'nin- ! 
 init M. and .1. for conti'inivt of iiiiiccss of the 
 
 ■ •onrt :— Mild, that tlir Mister I'lastinis' Asso- 
 ciation wan not niadi' a jiaity to nor siillicicntly 
 rL'iiriHt'iitid in tini act'on li\ the allr^jatioiis in 
 till' |ilaiiitill's' allidavits ; lud that no art a;,'ainHt 
 till' plaintills individually liavini; Ihmmi cstali- 
 lislii'd, M. and ■). could not lut lu'ld k'oH^v "' ' 
 roilti'iiilit fur interfcii'iiiH; with the asscjciatioii 
 and I'. : tli.'it thoiij;li the aHsiuMHtion iniLiht lie 
 added liv aiiieiidiiient, the iiijiiiietioM Would also | 
 have to lieaiiiended, and in tlic' meant inie M. and 
 
 ■ I. must lie aci|iiitted of ooiiteiii|it nf the ininne- | 
 tioii as it now Htooil. and therefore the niotioii 
 mustfail. J/i/iii's V. /,,./„(•, 4(1. It,, (,l. 11. 1). ~S. 
 
 'n an ajiplieatiim on lnhalf of the i"M|ionilent I 
 oaii eleetioii petition for an order nisi ealliiii,' 
 'J defendant, his o|:[)oneiit at the ehetion, 
 lew cause why he shinild imt lie eoiiimitteil ' 
 for eoutemiit of eoiirt for luililisliiiiL: artirles in 
 his newspaper, relleetiiij.' mi and piejud,L!iiif,' the 
 eondiict of the respondent and the returning 
 otiieer during the ciirruni'y of an ideetion peti- 
 tion :— Held, on the materials liefoie the eniirt, I 
 a (iriiiia faeie ease of eontemiit «as made out ; 
 hut as it ajipeared on the same mat< rials that 
 the responilent had attended and .spoken at a 
 meeting held for the purpose of a]iiiroviiij,' of the 
 eonduot of the returning ollieer, and i>re,seiiting 
 him with u gold wateh as a mark of such [iiililie 
 apiiroval, the applicant w.is al.so in fault, and 
 the motion was refused, /ii /v livllin-ill Elicliun 
 Cane, 4 0. II., (.;. r. 1). 224. 
 
 iloiMinients miller Itiile 420 O.T. Act, whieh vc»t9 
 in the master in ehamliers the ]iowers of the re- 
 leiee in ehamliers of the ( 'ourt of ( 'llHlieery. 'I'liO 
 mister held til it matters relating to the liliorty 
 of the snliji I l| iving heell excepted from tlio 
 jnrisdii'tion of the elerk of the crown and pleaa 
 under the tiirmer pr.ietiee, lire still lieyimd Ilia 
 jurisdiction liy I tide 420, < ». .1. Act. KafeV. 
 \Vitnl,\) I'. I ■ .'•.O. l)illoii, Mii^hr. 
 
 II. Foit Ni)N-Pk()1)1'CTIO\ ok Porr.MEXTS OR 
 
 Ari'DrNT.s. 
 
 Where a party to he examined refuses to pro- 
 duce hooks, itc, as reijuired by the notice to 
 produce, served with the order to examine under 
 K. .S. O. c. TiO, 8. Kil, or refuses or neglects to 
 attend for ex.amination, or refuses to he sworn or 
 to answer lawful (|uestii>iis, pursuant to .such 
 order, proceedings against him by attaehinent 
 must he taken before the court, and not before a 
 judge in chambers. MiTchantx' Btuilc v. Pnr- 
 ■■<oii, 8 P. II. 123.-Osler. 
 
 Seinble, that the action could not be dismi.ssed 
 under R. .S. (). c. 50, s. J TO <i, 41 Vict. c. 3, ». 
 0, for disobedience by the plaintiU" of the notice 
 to produce. Jh. 
 
 Held, also, that the refusal to produce the 
 plaintifl's' books, under the facts stated ii: the 
 report of the case, was not warranted. lb. 
 
 A certificate given by a master tb.at certain 
 accounts tiled under his order arc not sutHcient 
 in substance and form, conies within (i. O. ()42, 
 and cannot be enforced by attachment until coii- 
 tirmed by the lapse of a month. Foster v. Mor- 
 dai, 9 P. R. 70.— Proudfoot. 
 
 On motion for an order for the committal of 
 one of the defendants for non-production of 
 
 I 
 
 II. 
 
 III. 
 
 IV. 
 
 V. 
 
 VI. 
 
 VII 
 
 VI 11 
 
 l.\. 
 
 A. 
 
 ATTOIJXKV ANI> SOLICITOiJ, 
 
 I'KrVII.KilE OK, 38. 
 
 Alll-.NT OK Attihnkv, 38. 
 
 I'kdckkihsiis vuaivst ami LiAiiii.rTY of. 
 
 1. For Xiijliijiniw, 3!t. 
 
 2. Tn Siiiiniiiirii ,Jiirt'i>'l'irt'toii, 40. 
 .Vi 'iriDiinv OK, 41. 
 I!i;taim;u, 41. 
 
 I'KALINd.S WITH C'LIKNT, 42. 
 liU.I, OK Cosl's. 
 
 1. A'/rri'iiinil :1k h) Cosln, 13. 
 
 2. Ji'i i'l ri'iirr In Titxnl'ion or Jtei'iiioii, 
 
 (a) Willi/ linn/ In' Ilcfcrrcd, 43. 
 
 (b) Tiiiif of Ji'i/'firiin', 44. 
 
 (c) IVIiiil liiciii-irnhh', 45. 
 
 (d) I'nc-I'irv, 41). 
 
 (e) A/i/ii'(ilfroiii Tii.iation, 4(i. 
 .3. Hiciiririj hi/ Sii'i/, 47. 
 
 4. Of/ii r C'liM'.t, 47. 
 
 liiKV Kill! Costs, 47. 
 
 Ml.SCEI.I.ANKOUH, Ca.sk.'<, 48. 
 
 ATToi!Ni:v(JK,\EKAb — See Aitorney- 
 (Jknekau 
 
 I. PlUVILEGE OF. 
 
 Ordering attorney out of court in trial of con- 
 tested election. See South Oxford Election — 
 IJopkiiii V. Olirer, 1 H. E. C. 
 
 243. 
 
 II. AOENT OK ArrOKNEY. 
 
 W. it Co., attorneys in the province of Quebec 
 for B. & L'o., there, reijuestcd the defendant, an 
 attorney in the province of Ontario, to sue a 
 company there on a promissory note made by 
 them, of which H. & Co. were the holders. De- 
 fendant issued the writ in the n.ame of B. & Co., 
 and indorsed his own name as attorney. He, 
 however, never had any eommunicatioii with 
 them, treating only with W. & Co., who had 
 sent him many similar claims to collect, and 
 crediting them with the .amount of the note 
 when collected : — Held, aitirming the judgment 
 of the County C'ourt, that the plaintiff, who was 
 the assignee of B. & Co., Wcas entitled to recover 
 from defendant the amount so collected ; the 
 rule that the town agent of a country principal 
 is not accountable to a client of the latter not 
 being applicable, as \V. & Co., were merely the 
 agents of B. & Co. to retain the defendant to act 
 
 
 
 
 
39 
 
 ATTORNEY AND SOLIClTOil. 
 
 40 
 
 K';>:., 
 
 as tlieir (vttdriiey, liotwueii whom iiiid W. & Co., 
 a direct privity of coiitiact lliuiufdi'ij oxistul. 
 Ii'unM V. I'ilc/i, A. It, 7- 
 
 See /iV Jdiiiijlini V. MhUi; 8 I'. 11. 50(i, p 43 ; 
 AiiiKiu V. I'liinkdt, !) 1'. Ik. 450, p. 40 ; K'tmi v. 
 i1/o(/er, 1) V. It. 514, p. 4(;. 
 
 111. I'KOCKKlJl.NtIS Ad.VlNST AM) Ll Aiill-ITV Of. 
 
 I. Fur Xdjliiji iifi\ 
 
 WlitTc F., a Sdlicitor, cm luli.ilf (>f lii.s client, 
 served a iioticM! of .sale umler a iiioit<,'aj,'c made 
 pur.suaiitto the A'-.l respecting short forms (It. 
 S. (). e. 104.) ii;.(>ii \vh;it he hclieved, after dili- 
 gent I'M'oiiry, Mils the last place of residence of 
 the iinirt;.'agor in this jirovince, and tlid so on 
 the instructions of his client, who \\ as fully ad- 
 vised as to the said i.'ncjuiries and their lesult, 
 and bona tide deeniin;,' such service sutlicient : — 
 Held, tliat F. was entitled, as against his client, 
 to tax the costs of the proceedings under the 
 power of sale, although it apjjcared the mortga- 
 gor really was p* I he time of such service, w ithin 
 thi.s province. H'DoiioIkic v. Wltittij, 2 (). K., 
 Chy. D. 424, allirined on appeal, (see 20 C Ij. 
 J. 14(i. 
 
 11. H. O. c. 104, iiernuts sul).stitutional .ser- 
 vice at the residcMiee though the mortgagor may 
 be within the jurisdiction. Hut even il such is 
 not the ]iii.[ier construction of the st.atute, it is a 
 ni.ittcr so doulitful that the solicitor who bona 
 lideaetcd on that view of the statute should not 
 lose his cosLs of so ell'ecting service. Ih. 
 
 Whi re sei vices are rendered by a solicitor at 
 the in.-,taiice of a client, possessing the like 
 knowledge of the niatteis of fact a.-; the s(ilicitor, 
 the onus is on the client to establish negligenct', 
 ignorance, oi- want of skill, by reason of which 
 alo.'ie am! entiiely the services have been uttcily 
 worthless, if he resist the taxation of cost.s in- 
 curre(i 1 y such services. Ih. 
 
 (.'., who w as in active practice as a lawyer, and 
 the author of several useful legal treatises, had 
 obtained a nuirtgage on a valuable hasuhold 
 estate, and having taken such proceedings as 
 resulted in a forfeiture of the mortgngors" term, 
 procured from the owner of the property a re- 
 newal of the lease to himself. The niortg.igors 
 instituted proceedings to I'edeem. but I'., assert- 
 ing that he was alisolute o« ner of the interi'st, 
 instructed solicitors to defiiid the suit, 'i'liey 
 expressi'd to CI. some doubt as to liis right to 
 resist the ehiini of the mortgagors, whereupon 
 he, with one of the solicitor.s, went to a counsel 
 of note, who, without having time to give the 
 case full consideration, verbally advised them 
 that the suit should be defended. C. drafted his 
 answer, his solicitor addingone clause. Coiui.sel 
 retained for the hearing told (J. he would un- 
 doubtedly fail in the litig .tion, and subseiiu.ntly 
 the usual decree for redemption was pronounced, 
 C being ordered to pay such costs as had ))een 
 occasioned by his resisting redemption. It was 
 alleged against the solicitors that they had a.l- 
 vised C that he wouhl l)e entitleil to costs in any 
 event ; that they had refused to consider or suii- 
 niit to h'lu an oiler to p.ty the mortgage money j 
 and costs, oil the ground as they alleged that C | 
 claimed about three times the sum otlered ; that i 
 they had uulludud with the mortgagors' solicitor { 
 
 ] in having proceedings instituted, which they had 
 
 WKMiglj advised him to defend ; and that lie 
 
 I had a good defence, but the same had been 
 
 I negligently managed. There was a written 
 
 I retainer, which did not express any sjieeial 
 
 j ariMiigement as to costs or the terms on which 
 
 tile defence was to be conducted. The court 
 
 being t)f opinion that ('. had failed to make good 
 
 I his charges against the solicitors, ailirmed the 
 
 order ma<le by .Spragge, ('., reversing the finding 
 
 of the taxing othcer that the solicitors were not 
 
 entitled to recover the costs of the litigation. 
 
 Although in a simple cise of a distinct assertion 
 
 : and a distinct denial of a fact at the time of a 
 
 I client retaining a solicitor, which thus forms a 
 
 part of a contract it may be a pro])er rule to say 
 
 I that in such a ease the solicitor has himself to 
 
 I blame when any dilhciilty arises, as he might 
 
 ^ have [iroteeted himself Ijy having his retainer in 
 
 I writing, there is not any authority for extending 
 
 ' that rule to facts arising after tlie retainer and 
 
 \ during the progress of the litigation. In any 
 
 event the rule applies only where it is simply 
 
 : oath against oath, not where there is other evi- 
 
 I deuce direct or eireunistantial in support of the 
 
 I solicitor's. Rk Ktn; ALci:-! d; JJtdl, Sutkituvn, 2!l 
 
 C'iiy. 188. 
 
 2. To Siimwary JurhiUi-tion. 
 
 The fact as to whether moneys collected by an 
 .ittoriiey had been afterwards loaned to him b\ 
 the client was disputed : but an undertaking 
 was produced, signeil by the attorney to the 
 tll'ect tliat he held the investment :--IIeld, that 
 if thi transaction was afterwards turned into ;i 
 loan to the attorney, he must be prepared with 
 tile clearest evidence of the change in the rela- 
 tion, otherwise the usual order against the attor- 
 ney must ijc made ; and in this ease the evidence 
 Was held to be insuflicieiit : — Held, that where 
 an order directing a reference to the master has 
 be^n made in (liambcrs, in such a ease, and the 
 relerciice completed under it, an ap])lication for 
 relief therefrom must be made to the court. //' 
 c. '(/( Alioniii/, 8 1". It. 102.— Uslc;. 
 
 To justify an onler to strike a solicitor off the 
 rolls there must be personal misconduct; it is 
 not enough to shew that his partner has been 
 guilty of fr.iuduleiit c<iiiduct, from which a con- 
 structive liability to pay money may perhap-; 
 arise. The court is not in the habit of exercis- 
 ing even the lesser jurisdiction of ordering pay- 
 ment ill a summary Tiianiier against a solicitor to 
 whom personally no bhunc is attributable, tliough 
 he may be responsible for his partner's acts. 
 .St. Aubyii r. Smart, f^. It. .'J <"h. (!40 distin- 
 guishi'd. AV MrCdini/iii/ (iml U'llxli, SoUcitors. 
 :U). It., Chy. I). 42,'i. 
 
 Where at the hearing ninttcrs are brought to 
 the notice of the court whicli atlectthe character 
 of one of the parties -a solicitor - the court will. 
 of its own motion, and without being applied to 
 by any other party, call upon such solicitor to 
 shew cause why he should not be called upon to 
 answer these matters. In re A Sulidtur, 27 Chy. 
 
 Upon the taxation of solicitors' costs against 
 their client, it was shewn that large sums of 
 money iieloiiging to their client had reached their 
 hands, and alter deducting the amount of the 
 
41 
 
 ATTORNEY AND SOLICITOR. 
 
 42 
 
 coats a consiileval)lu l);il;»nce remaiiKid duo to the 
 client, for which he liad, uuchn- the order of tax- 
 ation, issued an execution, but the sheriff had 
 been able to realise only a small jiortion of the 
 debt ; and tliereu]i(ni a motion was made to strik'.^ 
 the solicitors ulf tiie roil in default of |iayiiu'nt nf 
 the amount remaining,' due. Thu court (lilake, 
 V. C. ), however, in view of the fact that tbe 
 client had treated the i-biini as a debt from the 
 solicitors to hiinsvlr', and [iroceeded to a sale of all 
 that he could seize under execution, was of 
 opinion that lie could not fall back on a I'ight 
 which he hid had and might have exci'cised, 
 unless, in adilition to the non-payment of the 
 money, misconduct on the i)art of the solicitors 
 couhl be shewn that wonhl warrant the inter- 
 ference of the court ; and refused the apidication, 
 witii costs. Rf Pktrhcy et al., 28 (ihy. 41. S. 
 
 On the presentation of a iictition to restore a 
 solicitor to tbe rcdls, ^vho had l)een struck oft' by 
 an order of 1st Sc|)teniber, 1874, for non-]iay- 
 nieut over of a client's money, evidence was re- 
 ijuired as to his good conduct since tin; making 
 of tlie order, and notice to tlu: f/iw Society of 
 the appHcation. and on this being coinplii'd with 
 he was re.'.tored, but the order was not ivseiud- 
 ed. Ill' Macii'iiiiiirn, n S<,linlor, ft !». I{. -!07.— 
 Proudfoot. 
 
 IV. ArniouiTY of. 
 
 Tt is within tbe power of u solicitor to settb,' a 
 suit onbcbalt of his client, where the settlement 
 is in good faith. Mrn;„'iM v. Fh'l,!, 9 I'. i;.L>-.'(l. 
 IVdton, ?Jii-itir. [This decision was overruled 
 by the Uivisional Court of {', V. not I'eportelJ. 
 
 L., being the boldiM' of amortgige npori which 
 an instalment of interest was due. nistructed his 
 attorneys " to rake le<;al ](roeeedings on the 
 securities unless the interest was paid on the 
 I'Jth A|iril." 'I'lie niort'^agor called <iu tbe I'Jtli 
 April, and told the attorneys tliat be intendi' 1 
 to [lay otl" the mortga,'e shortly, and lioped no 
 costs would be incurred. On the l.'itli .' [iril tiu^ 
 attorneys issued a writ of ejectment, and pre- 
 pared notice r)f sale, and served them on the 
 mortgagor on 'l'M\\ .Vioil. when he I'ailed to pay 
 otl' tile mortgage. 'J'liey also refus 'd t') t die the 
 principil money ;— Ifcld. that tbe attorn. 'vs h.id 
 no authority to collect the prnicip d. .and that 
 thi'V were entitled to the costs of tlie ejectment 
 suit, but to no other costs wh.itevei'. //( IV 
 i'ljiit and J,ilr/f, Airinici/.i, 8 I', li. .•!i!l.— 
 \Vilson 
 
 See .also, .lohnslon v. JuliiiMon, !• 1'. 1!. 12.")!! ; 
 BnKrii V. Sir.vt, 7 A. I!. 7'2."). 
 
 necessary proceedings to realize the assets, and 
 recfiver certain pro|)erty allegefl to belong to the 
 insolvent, .and for th.it pur|)ose to ret.ain counsel, 
 if necessary. B. became insjiector of the estate, 
 and consulted with tbe plaintiff, .and on his .ad- 
 vice instructed the .assignee to defend and bring 
 actions. The assign^ e w.is obliged to pay costs 
 anil dam.ages in an acciou brought .against him to 
 recover goods wrongfully taken by him ; and he 
 also paid the jd.iintiff some costs, whereby the 
 assets of the estate were exhausted, and a small 
 sum in addition paid by the .assignee out of his 
 own funds. The defend.aut's test.ator was sub- 
 sequently removed from the office of assignee, 
 and a new assignee appointed, whereupon he 
 ))resonted a ]tetition to the Insolvent Court, in 
 which he alleged that he h.ad retained the plain- 
 till', and had been put to great expense in bi'ing- 
 ing and defemling suits as assignee, and h.id be- 
 come li.able to p.ay Large sums of money in respect 
 thereof, and prayed p.iyment by the new .assig- 
 nee, which was refused. The plaintiff delivered 
 liis bills to the defendant's testator in his life- 
 \ time. After the death of the testator the plain- 
 j till' wrote a letter to one of his sons about the 
 i costs, in which, in rel.iting the facts, he stated 
 I th.it he was .ittm-ney for the bank. The plain- 
 tiff now sued tbe person.al representative for his 
 I unpaid costs of the proceedings carried on by 
 I him. .Senklcr, Co. .T., who tried the case, found 
 tb.it the retainer was not a personal one bj' the 
 assignee, but that the iilaintilf had .acted for the 
 bem.'Ht of tlie crcilitcu's, and was in f.ict their 
 aidicitor : — Held, Armour, J., dissenting, aflSrm- 
 ing the judguKuit of Soidiler, Co. J., it was a 
 (piestion to be determined on the evidence 
 wlii!ther the ret liner w.as a personal one by the 
 assignee, m- whether he was .acting merely on the 
 ' instructions (if creditors ; that upon the evidence 
 I the pbiiutitf was solicitor for the creditors and 
 I not for the assignee personally ; and, notwith- 
 st.indiiig the .ubnission cent lined in the as- 
 I signee's petition, he had not incurred .any per- 
 j soiial liability for tbe costs. Per Armour, .T, 
 I The, [ircsumptioii is, tli it when a solicitor is re- 
 : tained, the iierson ri'taining him is liable for the 
 costs, and to avoid liability ho must shew sonic 
 spe ;ial ag.eenient to the eoutrary ; and the evi- 
 , deuce here not only did not displace the prc- 
 sunn)tiou, but shewed tint the testator ha'l 
 ilways cousidered himself liable for the costs. 
 Per llagiity, C. .1. It is the duty of a solicitor 
 I to inform bis client, when a trustee, .as to the 
 1 advisablility of taking proceedings and incurring 
 j costs, when it may become a (juestion whether 
 I the costs will have to lie paid out of his private 
 funds or of the trust fund or estate. Ihittirjield 
 V. lli/Z-s -t <>. i;., (J. B. I). I()8. 
 
 Soe lie Kcrr—Aki'r.'i (mil nidi, 29 Cliy. 188, p. 
 40. 
 
 V. PiKTAINER. 
 
 'I he defendant's test.ator was a sheriff and 
 ollici.al assignee under the Insolvent Act of I87.">. 
 The olaintif!' was solicitor for tbe City H.ank, and 
 also for one li., upon whose petition one H. V. 
 was placed in insolvency. The oni.'ial a.ssignei! 
 becanie creditors' assignee. At the first meet- 
 ing of creilitora, }{. being chiirnian, the jiLiiu- 
 tiff, re|)reseiiting the < 'ity Hank, whose cl.iini 
 aniomited to nearly tlie" whole indebtedness, 
 moved a resolution to sell cert.iin goods of the 
 insolvent, that the assignee should take the 
 
 VI. l)Kvi,iN(is WITH Client. 
 
 In a fort^i'losure suit the defendant alleged that 
 the plaintiff, a solicitor, had been employed by 
 him in .Aiiril, IS7S, to procure a lo.an of $1,400, 
 wbieh he reipiired to pay off a mortgage for 
 !«2.<HM), on which there was due.«!2,120, and th.at 
 taking advantage of the inform.ation so acquired, 
 the plaintitf had purchased the mortg.age for 
 himself at the price of 81,400. It appeared that 
 the defendant had, in the spring of 1877, obtain- 
 ed a loan of .SliOO on a portion of the land in 
 
 It 
 
 0; 
 
 ^ 
 
 • 4. .J 
 «». - 
 
 
4:? 
 
 ATTORNFA- AND SOLICITOR. 
 
 44 
 
 ijiKstiiiii, tliroiijj;)! tliu iiliiintilV acting as agent 
 anil lugiil advisur ol a loan cniniiany : that in 
 Janiitiy I'oUowiiig, the ilelendant liail a[)iilietl to 
 the plaintitV, aeting in tiie same eajiaeity, to Jiro- 
 cuic a small h<:u\ lioni tlie eompany on the land 
 in (|Ueritioii, which the plaintill'tolcl him he could 
 uot reconiniend to tlie eomiiany ; that atte 'wards 
 (me II., who lieM thr .-<■.'.(•(•(» Miorti:.i;;e, tried to 
 sell it to the company through the |ilaiiitill', w\u\ 
 linding that the land cominiseil in it did not 
 come up to the value leiiuircd liy the comiiany, 
 wrote H. to tiiat etlcct, an<l .suhscciueiitly the 
 plailitili', who denied tli.it the defendant h;id ever 
 re(iueated him to ohtain the -SI, -400 hian, purchas- 
 ed the mortgage for himself for .'<l,(iL'5 :- Meld, 
 reveisingthe decree of Ulake.V. f., L'T thy. -I-!', 
 that the evidence, which is fully set out in the 
 case, shewed that the defendant had notap|)lied 
 to the plaintiir for the .•?1,4()() loan, and that there 
 was no eontiileiitial or lidueiary I'elatiouship 
 existing hetween the jiarties which iirceludcd tlie 
 plaintiff from purchasing the mortgage. KUIitmnt 
 V. A moll/, () A. 1{. 158. 
 
 VI. Hii.i, 111- Costs. 
 
 1. ^lijn cull III II.1 to Ciisf.-i. 
 
 Uniler an agreement lutween the lU'fendants 
 and their solicitor, he was to lie paid a lixed 
 Balaiy, to cove]- all his profi ssiniiiil services to 
 the city, exclusive of counsel fees and other dis- 
 liursenieuts paid liy him, hut he was to have the 
 right to costs from [larties ag.iiu.-t mIihui the 
 corpiU'atiou should succei'd, .•uid he entitled only 
 todishur.sements when they shoulil fail. In a case 
 in which the defendants succeede<l, ju<lgment 
 was entered ag.iinst the plaintitl' anil the usual 
 costs taxeil. (»n motion for revision :- Held, 
 AVilson,('..l., dissentin,', following. larvis /'.(inat 
 Western 1!. W. Co., « <'. I'. -'Stl. that as uiidir 
 their agn "ment the deleinlants were not lialile 
 to pay tl..^ attorney the I'osts taxed exce]it dis- 
 Iniisemeiits, all costs except disliursements must 
 be disallowed. Wilson, C. .1., thought .Jarvis c. 
 Great Wotern W.W. Co. not a satisfactory deii- 
 eision, and o]iposed o tile later ease of (ialloway 
 r. Corporati..n of London, 1^. 1!. 4 Im|. !)0. 
 S/< rriixon V. ('orpi'riili"ii "/' flu ("ilii vf Kiiiij-<l,,ii, 
 
 31 c. r. x\x 
 
 The agreement to pay a solicitor a lixeil sum 
 as a yearly salary in lieu of jiaying items in 
 detail, is neither illegal or uiiu;,ual, whether it 
 provides for the Jiast or the future. Fi'l/:iiii r v. 
 
 arniiiiJiiiiiiioii n. II'. Co., t (1. i;., Chy. I). :{,-,(». 
 
 See III Miili-iiliiixoii mill Wmh, 1'. K. •_>4-', 
 p. 44 ; Annilili v. (>'JJi,iin/ioi, •_' O. It. .Hl'2 p. 45. 
 
 2. I'i'J'i I'liii'i Id 'J'li.ialii/ii nr III rislmi. 
 (a) Whiil ihiiij III Itil'i i-iiil. 
 
 Charges hy a solicitor who acted as agent for 
 the principal solicitor, are suhject to taxation 
 though the principal receives a comiiiissioii. 
 Upon such taxation a master should without 
 special direction regard any settlement ariived 
 at hetween the solicitors. Iti' liliinj/nn v. Mirkli , 
 8 r. K. o««.— Boyd. 
 
 Costs of sale under power of sale in a mort- 
 gaire. See Jli I'nnir iim; Miiii; 8 1'. 1{. 5() ; 7,V 
 Mr/Joiiitlil, MrlJuiiiilil ,v Miirs/i. II)., 88; /'. 
 Civiii/ii, A'r (/•.!.■ /i'li-ij Allunu'i/.i, Ih. ,372. 
 
 (b) Tiiiii of Rifircnce. 
 
 Where a client apjilics for taxation of an attor- 
 ney s hill after the eX|iiratioii of a year from its 
 dcliverj', he should slieu such special eireuiii 
 stances as would have justilicd a reasonable man 
 in not previously seeking a taxati(ui, or that lie 
 was prevented by some unavoidable cause. 
 \Vhcre judgment had been signed against the 
 client in an action on the bill during the peiul- 
 eney of iie^otiatioi.s for a st ttlcment, this was 
 hclil a siiliieieiit reason for directing a taxation 
 after the year. Piillii/li- rl ill. v. Vhiirch, 8 V. 1!. 
 ;i()o.--( 'ameron. 
 
 A Solicitor sued his client in a Division Court 
 for the aiiKUiiit o; his bill of costs. While the 
 action was st.iiidiiig for judgment the client ob- 
 t lined from the master in chambers an order for 
 taxation. IVuding an appeal from that order 
 judguieiit was ;;ivcn, whicli shewed that all the 
 items ill the bill which were in dis|iute were 
 considered and adjudicated upon ; — Held, not- 
 withstanding, that considering the nature of the 
 ,.l,;,i._r,.5i jiijil the circuiust.inees disclosiid in the 
 allidivits tiled on t'le application, the order of 
 the Master was right. /■'• llnnlrll, a So/icilor, 
 it I'. It. 4S7. -O.shr. 
 
 ( >n a sale of property under a power in a niort- 
 g ige. the solicilm's mole than a year before this 
 application, vith tln^ .ipprobatimi of the agent 
 of the niiutgagi.'e (who was out of the country) 
 retained out oi the proceeds of the sale a lump 
 sum for their costs, and delivered no bill ; — 
 Held, ;i special circumstance uiiiler It. .S. ()., c. 
 140. s. 44, entitling a siiliseiiucnt incumbrancer 
 to have a bill of costs in detail deliveied to him 
 u|)on [).iyinent of the costs of a copy. A'c Mill- 
 i-uhii^iiii mill IVaili, .Sullriii, !■.■<, y I'. It. 242.— Boyd. 
 
 On July 20, 1877, A. and B., a tirm of solici- 
 tors, rendered their bill to C., also a solicitor, for 
 jirofessional services. (In May I^Otli, 1 878, C. 
 Wiote to .\. and 11. claiming a reducliiui of the 
 I bill, and alleging o\ er charge, and an agreement 
 I to do the work tor half tees. No notice was 
 ' taken of this letter, nor did C. take stcjis to have 
 ' the bill taxed. On .Inly Sth, l,'-p.S2, A and B. 
 I sued in the County Court on this bill, and judg- 
 ment w.is cntcicd therein on .Inly liltli, 1S.S2, for 
 ' default of apiiearaiiee, which judgment was, by 
 I con.scnt, siilpseniicntly wai\ed. On .Inly •_'7tli. 
 , I.S,S2, a bill for services rendered subscipieiitly t" 
 .Inly. I,S77, W.IS delivered to C. by A. and li. 
 In this bill was included the following item: 
 "To amount of juilgmcnt entered .Inly I'.Hli. 
 1S.S2, .S2()8.(i7 for previous accounts rendered. 
 An action was then comineneed in the (,'hancery 
 lUvision for the amount of the two bills. On 
 the trial of the action, juilgmcnt was given for 
 the amount of the lirst bill, as rendered, and 
 .ilso for the amount of the second bill, subject 
 to taxation : Meld, on appi'al to the Divisional 
 ( 'ourt, tli.it neither the existence of a controversy 
 as to the terms on which the business w.is done, 
 nor the continuance of the eniployineut after the 
 delivery of the lirst bill, were "special eircuin- 
 atuuces " within U. S. U. e. I4U, a. 35, entitling C. 
 
45 
 
 ATTORNEY AND SOLICITOR. 
 
 46 
 
 to tax the first 1 ill after the lapse of a year : — 
 Held, also, that the reference in the second bill 
 to the amount claimed in respect of the first bill 
 dill not amount to a rendering of the first bill so 
 as to entitle the client to a taxation. Arnukli v. 
 O'Poiiohue, 2 O. R., Chy. D. 322. 
 
 ,See lie Solkitun^, 9 P. R. 90, p. 47. 
 
 (o) What Rccoeendile. 
 
 'I'he plaintiff, an attorney, was the official 
 as.-ij^nce of an insolvent estate. Ho brought an 
 action on l)ehalf of the estate, and used liis own 
 n.-miu as the attorney on the record. 'J"he plain- 
 till obtained a verdict . — Held, that under s. '.VI 
 of the Insolvency Act, 187;'>, he was entitled to 
 tax disl>ursemeiits only against the defendant. 
 Aunin- V. 7i'i-.svs, 8 P. It. G7.— Osier. 
 
 A master or a siii,','le judge has no discretion 
 to allow a solicitor in:)re than ijl ])er hour for 
 attendance on the taxation of a bill of costs, 
 either between solicitor and client, or pariy and 
 party ; the tariff being fixed at that rate by (!. 
 O. (ibs. AV Tottcn, 8. 1'. K. 38.').— I'roudfoot. 
 
 Where costs as between solicitor and client 
 Were to l>c paid by the plaintiff to the defendant, 
 and where it appeared tliat the defendant's soli- 
 citor had at the recjuest of his client, madt' in 
 good faith and on reasonable grounds travelled 
 fiMiu Sarnia to Toronto, to attend on the exami- 
 nation of the pldntitt' on the bill : — Held, on 
 ajiiiual from the master, that the defend.int 
 Could tax against the plaintili' a sum of !?()0, [laid 
 to defendant's solicitor for t« o days services and 
 travelling expenses. GdiujIi v. Park, 8 P. U. 
 4'.t2.— I'roudfoot. 
 
 .\n aibninistrator ail lilini had allowed suits 
 to be l)roUL lit in his name without the sanction 
 ol the ('onrt, which both he and his solicitor bad 
 been notified it was necessary should be obtained 
 and a sum of §2,738.37 for costs in res|iect of 
 such suits had been jiaid out of the funds to the 
 f-iilieitor, which it was alleged had been so paid 
 in'provideiitly. The court in a suit by the ex- 
 ecutors against the administrator ad litem, di- 
 rected the taxation of the solieitoi's bill w heie 
 a ^um of .S2,(»12.81 was disallowed, and there- 
 Uj'on tlu' sureties for the administrator, who 
 w.is unable to pay, a])plied by petition for an 
 (Miler that the solii.'itor should repay tliis amount 
 with costs, 'i he court (I'roudfoot, .1.), under tlu^ 
 circumstances, matlc the order askcil, although 
 no taxation of the costs as between the solicitor 
 and his client had been iiad, and it it was denied 
 that any arrangement existed that the solicitor 
 sliiiuld only be paid such costs as the adminis- 
 trator might be allowed against the estate; or 
 that any privity existed between the solicitor 
 and the exee\itors, and a l>ill tileil by the execu- 
 lois against the administrator and liis solicitor 
 had as against the latter been dismissed with costs 
 I 11 the ground of such want of privity ; such 
 dismissal not having been on the merits couhl 
 not Ijc claimed to lie res judicata, ('rooks v. 
 CruoL-K, I Cliy. ,')7, remarked upon and followed. 
 Hi Ihmoniu—U'iUou v. /Iculti/, 2!) Chy. 280. 
 lUvcrsed on Appeal, 9 A. 1{. 149. 
 
 Interest may be allowed on a solicitor's bill of 
 costs, if a demapd in writing is made for it. In 
 ri- McC/ircl a/., Soliillor.i, 9 P. K. 213.— Wil- 
 son. 
 
 The taxing ollicer has no [lower to allow inter- 
 est, unless tile nnitter has been siieeially referred 
 to him by the order for taxation. Jh. 
 
 The ))lrtintiff', during the pendency of a motion 
 for interim alimony, returned to her husband : — 
 Held, tliat the defendant must pay the costs as 
 between solicitor and client of the plaintiff's 
 so'icitoi'. Liiiiiuril v. LcoiKtnl, 9 P. 11. 450. — 
 Dalton, Mitxlir. 
 
 Necessary letters between a solicitor and his 
 agent on the business of the cause are taxable as 
 i)etwceii jiarty and jiarty, whether the agent re- 
 sides in the county town of the county in which 
 the solicitor resides, or in another county, or in 
 Toronto. Aijmii' v. I'luiikdt, 9 1'. U. 45(>. — 
 Osier 
 
 The ])laintity, a solicitor, obtained a verdict for 
 
 damages and costs in an action feu- libel, in which, 
 
 althoiigli another solicitor aiipcaied as acting for 
 
 him in all the pleadings and proceedings in the 
 
 suit, he actually did the work, and carried on 
 
 the suit himself : -Held, on aplieal from the 
 
 taxing ollicer, that full fees .iiid disbursements 
 
 except "instructions," Inul been properlj' al- 
 
 j lowed to him, and that his acting as agent for 
 
 j the solicitor whose name appeared in the pro- 
 
 1 ceedings as his solicitor did not affect his right. 
 
 Khi.i V. Moijvr, 9 1'. 1!. 514.— Hagarty. 
 
 See //( /•<■ tlhit mid J, 11,//, A//oni( !/■■<, 8 P. ]{. 
 3(J1, p. 41. 
 
 (d) Priir/'ic: 
 
 Where an order is made for taxation of an at- 
 torney's bill, as between attorney and client, 
 under the II. S. (). c. 140, s. 4!l, a coniinon Law 
 court has no power here, as it has in llngland, 
 under the tiit 7 Vict. c. 73, s. 4,3, to make a sum- 
 mary order ior payment of the amount found 
 due from the client, except by consint. hi ri' 
 A. /j. mid V. I)., A//uni<ij.-<, 8 P. 1{. 12ti.- Osier. 
 
 Bills of costs between solicitor and client 
 shoulil jrrima facie be referred for tax.ition to 
 the mastt'r of the county in which the W(U-k was 
 done. Ill' IdliiijIuH and Mhkli, 8 I', it. 5()(i. — 
 lioyd. 
 
 An order for the taxation of a solicitor's bill, 
 at the instance of the client, should refer the 
 bill simply for taxation. .A clause in such order 
 directing p.iymeiit to the .solicitor of the aiiioiint 
 of the taxed bill was struck out. J,'f < '/((rkv, 9 
 P. It. 197. Dalton, Ma-i/rr. 
 
 See Jlr Suliri/urs, 9 P. It. 90, p. 447. 
 
 J? 
 
 t« ■ 
 
 (e) Aiiiiial from 'J'a.ni/inii. 
 
 When an order is obtained by a client referring 
 the taxatitm of a solicit>'r's bill to the master in 
 the county where the work was done, any 
 review of the master's conclusions must be ob- 
 tained by way of afijieal to a judge. In re 
 ' likubr and lliiidirt^oii, 9 P. K. 182.- Boyd. 
 
47 
 
 ATTORNEY AND SOLICITOR 
 
 48 
 
 ITuM, tliiit tlio notice (if a])jie;vl fniiii a certifi- 
 cate ot tixatioii (if a sdlicitor's liill of eiists l)y the 
 local mister at St. Tlioiiias, iiiu.st ))e seven ilays, 
 as reijiiired liy ('<. < >. (i4'J. Siieli a case is not 
 within rule -4 4!l (). .1. Act. Krrhniiije Hunk v. 
 Newdlit al., !) 1'. It. iV2S. — Prouilfoot. 
 
 3. Ufcorivij III/ Sii!/. 
 
 In an action hy a solicitor to recover the 
 amount of a liili of co.sts, the fact that he does 
 not, in his .statement of claim, allege that tlie 
 bill wa.s (lelivercil a month liefcue action brought, 
 is not now, any more tlian before the Judicature 
 Act, ground for deniuirer, but only for defence. 
 Si-niir ,1 III. V. Diirh-itt H al.. 3 ()'. l\., Cliy. D. 
 370. 
 
 Thon-li under I!. S. (>., c. 140, sec. 32, the 
 right of ;iction on a bill of costs may lie susjiended 
 pi'udiuL' a month from delivery, nevci'tiieless the 
 solicitor is a creditor, and may as sueli, before 
 the ex]iir,ition <if such month, V;i-ing an jiction to 
 set aside a voluntary coiiveyaucc as fraiidnlent 
 and void. J I). 
 
 See also, /.»//'/' v. Ciiiiin inn Mill mil Fire Iii'<. 
 Co., !) I'. II. '2>)-2 ; .v. (.:, ■10. l{. 5(i0. 
 
 4. Olliri- C(!.-,r.<. 
 
 An order for partition or sale was made umler 
 the recent (i. (». (i40, by the master at l/omlou, 
 of the est.i'.e of one M., deceased. In jiroceeil- 
 ing under tliat order the master advertised for 
 creditois, ami M. iV, M. sent in a claim for ob- 
 tainiui^ letters of administration, and for defend- 
 ing an action in tlie court of ( '. P., brouyht by 
 W. M., a defendant in this suit, and entitleil to 
 a siiar(' (if tlie estate, against the adniinistivitrix. 
 The nia.-ler allowed the claim, and \V. .M. ap- 
 pealed, on the ground that neither the deceased 
 nor his estate was indebted to M. iV il. and that 
 they Were not entitled to jirove as creditors in 
 tliis cause : — Held, that she was justilied in de- 
 fending the suit, and the appeal was dismissed. 
 nil-Kill/ V. MrKii,/, 8 1*. 11. 334.— Proudfoot. 
 
 On an application to tax a solicitor's bill more 
 than a month having elaiiscd since its delivery, 
 an ordir was issued in tlie long form in use be- 
 fore the (>. J. Act instead of the form under rule 
 44.3, as the master is mentioned in tiiat order but 
 the t.ixiiig ullicer is the proper ottieer to tax bills 
 of costs under rule 438 of the Act. /i'-- Soliri- 
 totv, I) v. Jt. !I0.- Stephens, h\/<-iri'. 
 
 Fraud having been charged agrdust a defen- 
 dant, who was a solicitor, and the eliargc being 
 wholly unsupported: — Sendile, that it would have 
 been proper not merely to deiirivc the iilaintit!' 
 of her costs, but to aljow such defendant all his 
 costs. Fni'd v. On- it al., (j A. It. G90. 
 
 VIl[. LiKN KOU CO.ST.S. 
 
 A defendaut"s solicitor as a iilaintilF's solicitor 
 m.ay have a lien for costs on a tund in court. A 
 bill was li!(.'d hy ;i jmrch^iser against the vemlor 
 for rescission or specific jierforuiancc'of a contract 
 for sale of Luuls in the county of Simcoe, made 
 
 the 12tli day of October, 1870, and registered in 
 1 .)uly, 1875, and by the decree made in October, 
 j 1S7(), the iilaintifTs were ordered to jiay certain 
 overdue purchase money. C, a creditor of the 
 defeiulaut, having placed a P. fa. Lauds in the 
 hands of the sheritl' of Simcoe in December, 1878, 
 obtained a stop order in January, 1870, against 
 the imrcliase money in court. The defendant's 
 solicitor claimed a prior lien for costs of this suit 
 but had obtained no stop order: — Held, on the 
 application of the defend.ant's solicitors for pay- 
 ment of the fund to them, that their lieu had 
 priority. Part of the fund in court was a b d- 
 anee of purchase money paid into court by the 
 plaintitT in March, 1879, pursuant to the decree 
 on further directions nnide in l)ctober, IS78. V. 
 seeking to attach this balance, in addition to his 
 stop order obt.iincd in J.anuary, 1877, pl.aced a 
 fi. fa. goods in the h.'inds of the sheriff of York 
 in l-"eliruary, 1879: — Held, that as to this bil- 
 ancc the solicitors' lien had .also priority. War- 
 ilrll V. Tnnouth, 8 P. II. 14'.'.— Stephens, Jli- 
 f'lTie 
 
 In garnishee proceedings a court of law will, 
 iis .against the .attaching creditor, )irotcct an at- 
 torney's lien for costs of the actiiui or suit in 
 which or by which the debt .attached has been 
 recovered, where the g.arnishee has notice of the 
 lien, ('(niiiiliini Hank of Cummi rce v. Crvuc/i, 8 
 P. R. 437.— Osier. 
 
 A conrt of eipiity will restrain a creditor 
 who has obtained an attaching order at law fmui 
 enforcing it against a fund recovered by me ms 
 of a suit in ccputy, to the prejudice of the att ir- 
 ncy's lien for costs in that suit. I li. 
 
 The lien extends only to the costs incurred in 
 the particular suit or proceeding, and not to the 
 attorney's general costs against the client in 
 other matters, /h. 
 
 IX. Miscellaneous Case.s. 
 
 Audit of county attorney's .account in connec- 
 tion with administration of criminal justice. See 
 /// /•( Fciiloii Coiiiiln ('ri)Wii .illorii'i/ 'i;'lhc (^oiin'i/ 
 of York anil Tlif Hoard of Audit o/llu: Count ij of 
 I Yorh; 31 C. P. 31. 
 
 I The plaintiff, knowing that the defendants 
 |w...o- firm of solicitors, advanced to one A. 
 ' money ..pou a joint note signed by him .and by 
 1 one of the defendants in the lirm's name, with- 
 I out the knowledge or consent of his [lartner. N'o 
 i usage or general nuitual authority to sign notes 
 in the name of the linn was proved, and it was 
 admitted that the plaintiff had no knowledge of 
 the transactions relied u[>on to shew sucii author- 
 ity. A verdict w.as given for defendants in the 
 ("ounty (!ourt, and a rule nisi to set it aside re- 
 fused:— Held, that the plaintiff' could not recover 
 against both defendants, but that the defendant 
 who signed the note was liable. W'iUiin v. Brown, 
 <<a/.,y A. 15. 411. 
 
 Knowledge of solicitor — how far binding on 
 client. .See Tin' Real Extitli> Inivxtini-nt Conijiann 
 V. Till' Mi'Iro/iolitan liinldiuij Surii'lij, 3 O. R. 
 470 ; Brown v. Swiet, 7 A. H. 7'i5. 
 
 Liability of solicitor for slander of title. .See 
 Ontario Industrial Loan and Invixlmi'ut Co. v, 
 Liudniu et al., 4 O. R. 473 ; 3 O. 11. GO. 
 
48 
 
 49 
 
 AVERAGE. 
 
 50 
 
 ATTOIIXEY-OEXERAL. 
 
 Held, altirining tlio jiulgmcnt of Prou.lfoot, 
 V, ('. , -li I'liy. l-t>, that the doctrine of esclieiita 
 apjilies to Ontario ; tliat tiie Attorney-lTencral 
 for (liitano ia the [)roiieT person to rci)resent tlie 
 Crown anil to aiipropriite the eseheat to the uses 
 of the provinee : that the Court of Chancery 
 has jurisdiction in such a case ; and tliat it was 
 proper tortile Attorney-* ieneral to tile a bill in 
 the Ciuirt of t^liaucery to enforce the esclieat. 
 Aftvriicn-O'cncml I)/' Ontario v. O'li'tilti/, (i A. U. 
 .">7(l. 
 
 Held, reversing the decision of Spragge, C- 
 (is Chy. (i.'i), that the Attorney-(!eiH'ral for On- 
 tario, rejiresentiny ily a limited ))ortion of the 
 public, \\ ith whom, if at all, a contr.ict exist'.'d 
 for the coiistruotion of a bridge l)y a eomi>:uiy 
 incoriiorated by the Dominion l'arli:unent, from 
 Canada to tiie Cnited States, across tlie Niagara 
 liiver, liad no locus standi. A/lnrii(i/-(ii-iicr(il v. 
 'J'/ic lii/cniiitliiiKil lirUliic Co., G A. K. o.S7. See 
 also .V. V. 27 Chy, 'M. 
 
 The work being one within the jurisdiction of 
 the parliament of Canada, that i)arliament, pre- 
 sumably with the knowledge of the state of the 
 bridge, allowed deli.jntures to be issued upon 
 it : — Held, uiion this grouiul also the Attorney- 
 General of Ontario was not tiie pro[ier |)arty to 
 tile the information. .V. (,'., t> A. R. 537. 
 
 As to necessity of a pulilic nuisance l)eing 
 niovud against by the Attorney-General. See 
 JIufliiiirni/ V. Doij, -28 Ciiy. 4(il. 
 
 Seral)le, but for the language used in fJuelph r. 
 The Canada Company, -t Chy. ().")(), the jiropcr 
 frame of a suit Ity a municipality against a rail- 
 way company for trespassing by running their 
 track along one of the streets of the mnnieiiiality 
 without lliiii' consent would l)e liy way of infor- 
 mation in tile name of the .\tt<irn('y-(ieiieral with 
 the corpiratiim as rel.itors. Fiiif/oii Falln v. 
 Vk'torid /,'iiilinii/ Co., '29 Chy. 4. 
 
 On an indictment, containing four counts for 
 obtaining money liy false pretences, was en- 
 dorsed: " 1 direct tint this indictment br laid 
 bot'ore tlie '.'I'and jurv. Montn^al, (!th October, 
 18S0:— i'.y.I. A. Mousse in, (,>.C. ; C. P. David- 
 sou, Q.{'i. : li. O. I/iraiiger, .Vttornoy-* uuieral. 
 Messrs. Moiisse.iu and I) ividsou were the two 
 counsel authorized to represent the orown iu all 
 the crimiuil lu-oceedings during the term. A 
 motion su|ip[irted by allidavit was made to iprish 
 the indictment on the ground, intiT .alia, that 
 the i)relimiiiary formalities reipiired by s. "28 of 
 ;W and Xi Vict. o. •-".» had not been observed. 
 Tlic chief justice allowed the case to i)roceeil, 
 intim.iting that he would reserve the point 
 raised, .sIk add the defendant be found guilty. 
 The ilefeii laut was convicted, and it was held, on 
 appeal, reversing the judgment of the Court of 
 •jtieen's liencli, that r.niler :}•_• and ;{3 Vict. c. 2!), 
 s. 28, the .Vttorncy (i.'uer.il could not ileh'gate to 
 the judgment and dis.Tetion of another the 
 power which tile legislature had authorized him 
 pcr.sondly to exercise to direct tliat a bill of 
 nidictueut lor obt lining 'noney by false pre- 
 tein'cs be laid before the grand jury ; and it being 
 admitted that the .Vftorii-y-'* tciieral gave no 
 directions with reference to this indictment, the 
 motiim to ((uash should have been granteil, and 
 the verdict ought to lie set aside. Almihiiiiu v. 
 llu- (Jnnii, () S. C. 1{. 10. 
 
 To an action on a drainage by-law to compel .i 
 municipal corporation to complete a drain, and 
 also to restrain a mis.application of monej's asses- 
 sed, and for an account, the Attorney-General not 
 a n(;cessar3' partj'. See Sniillt v. IVh' ('nrjiora- 
 liiiiiui'lhi' Tui(uis/iii> i)j' Itakiijh, 3 O. li. , Uhy. 
 D. 46.J. 
 
 AUCTrON AND AUCTIONEER, 
 
 BiuDixtf .vr Sale ok Land.s itv Oupkh of tub 
 Court — .V't Sale of Land iiy Ordebof the 
 
 COL'RT. 
 
 In a bill filed by a mctgagor against his son, 
 .a bidder at the sale by an(>ther of the defen- 
 dants, ,a lo 111 eonip my, to which bill the com- 
 pany and one B. were also clivendants, it was 
 alleged that it had been agreed between the son 
 and h. that in consideration of the son's secur 
 iiig to B. a debt of the pi lintiff, B. would ad- 
 vance the deposit necessary to en.alile the son to 
 buy the land at the sde ; tint the son should 
 attend .and buy in the land, which he actordingly 
 ilid ; til it in conseipience of li.'s refusal *;n make 
 the promised ailvanee, the son was unable to carry 
 out the sale : that the liiiMing of the son deterred 
 others [iresent from bidding, and that !i. after- 
 wards iirivately bought the land at a great .inder- 
 value to the loss of the plaintitl': — -Held, on de- 
 murrer, that the bill sutHciently, though inarti- 
 licially, alleged tliit by reason of B. 's agreement 
 and refusal to make the advance agreed upon, he 
 hid occasioned an .abortive' sale, and profile.! 
 thereby to tlu' loss and damage of the plaintitT. 
 Ciuiipioii V. Ih-iii-k'iiri'liji', 28 Chy. 201. 
 
 The defendant having sold land by auction 
 uniler a decree of the Chiiicory Division, wis 
 convicted of a breach of the by law of the county 
 of lluidii. passed pursuant to the .Muiiici|)al Act 
 R. S. O. c. 174, s. 4(>.") subs. 2, providing that 
 it should not be lawful for any p^'i-son to sell by 
 public auction any wares, goods, or merehamlize 
 of any kind without a license: — Held, that the 
 conviction was clearly bad, for the by-law did 
 not r.'fcr to lands ; nor would the statute have 
 autli irized such a by-law. /{cii'tiiit v. (Vtitptnnn, 
 I O. R., Q. B. D. .-)'82. 
 
 As to elFect of misroprosoutations in sale by 
 auction. See Sinnitu-r^ v. O'D tiiohof, 8 A. II. 
 hil ; 28 Ciiy. 207. 
 
 Power of factor to sell by auction for repiy- 
 ment of adva ices without special authorization. 
 See MilrkeU v. Si/ki's, 4 O R., Chy. D. 501. 
 
 AUDIT. 
 
 Of county attorney's .accounts. See fit re 
 F'Htin, mil t'l'- liiiini of Audit nf Ike Coiuifi/ of 
 )'</•/•, 31 C. B. 31 ; III re. Stanton and tli- liovd 
 of Audit/ jr the Count i/ of El'/in, 3 O. R. 86. 
 
 
 ft 
 
 
 I 
 
 AVER.\GE. 
 •See Ship. 
 
51 
 
 BAILMENT. 
 
 52 
 
 I. 
 
 15AIL. 
 Au.s(ONr>iN(i Dkhtou at Suit of the 
 
 11. 
 
 AWARD. Mii'hai'linas term, and he was rcndored in dis- 
 
 „ . . cli;iri'u of liis bail in tlie vauation followinL' ; — 
 
 Seo. Aru.ti«ATf..N and Award. n^,i,i_ „„ .„, ^pidication for a aupersudeas, that 
 
 tlie render rulated Ijack so as to iuuhulu Michael- 
 mas as one of the two terms within which the 
 )>hlinti(rmu.st chari,'c tlie defendant in execntion ; 
 and tliat not liavinji heen ehari,'ed in execution 
 until Easter Term he was entitled to hia dis- 
 charge. Whiatlrji V. Slinrpc, 8 I'.H. 307.— Osier. 
 
 Where a person is once sui)ersedeal)le for want 
 of lieiiig eiiargcd in execution, he always con- 
 tinues so. even thouj^h he is afterwards eliari^ed 
 in execution, ijcfure the api)lieation for a super- 
 Si deas. Jli, 
 
 An aiijilication for a sniiersodeas was enter- 
 tained, although a similar ,i[>ijlication in the same 
 case had already been dismissed. 11/. 
 
 Where a defendant is arrested by a sheriff 
 under a ca re, and after verdict is surrendered 
 by the bail to t!ie same sheiill' upon an action 
 bting commenced against iliem, tlic shei'ilF is not 
 enli'.U'rl to a copy of tliu bail-piece before receiv- 
 writ was accepted by his attorney, who entered ing the iiri.^oner into custoily ; and where such 
 an appearance to the writ :— Held, that this was relusal was given, the sherill' was compelled to 
 a useless proceeding, .•ind that defendant sbduld pay the costs of an application to stay jiroceed- 
 havt put in special bail, linjiiia v. Hkicart, 8 iii;^;<, and an order was made to extend the time 
 
 Ckown, 51. 
 
 liKNKKH OK Hail AND Kf.i.kasf. 01' Sure- 
 ties, .'>1. 
 
 III. Si'EciAi. Hah,— C'o.sTs Under II. S, O. c. 
 50 s. :«:$, oi 
 
 IV. In Criminal M.viters — Seit Criminal 
 
 Law. 
 
 I. AiiscoNDiNti Di:iiToi! AT Suit ok the fiiowN. 
 
 In an action at tlu; suit of the thrown an ordei 
 was made for t\ writ of attachment .igainst de- 
 fendant as an absconding debtor. Service of tlu 
 
 r. 1{. -297.— Osier. 
 
 Held, also, that the forfeiture of a recogni/- 
 aiiee to ajipear was a <lebt sutlieieiit to 8up|)ort 
 the application for an attachment under the .\\>- 
 sconding Debtor's Act. lb. 
 
 Held, tli.at the amount for which special 
 bail is to be put in need not be mentioned in the 
 order for the writ. lb. 
 
 11. IJeNDER ok 1'AIL AND IiEI.KASE OK SuRK.TlES. 
 
 1'lie sureties on a statutory bail bond under a 
 writ of ne exeat judvincia have no pcjwer to sur- 
 render their jirincijial as at common law. An ap- 
 plication by sureties for discharge from a bond 
 and for re-payment of the nioney paid to the 
 sherill as collateral security was refused. llkh- 
 iu<l,-<oh V. Jialnintnun, 8 1*. H. 'J74.--rroudi'oot 
 — Spiagge. 
 
 'Wheie a party is entitled to an assignment of 
 a lioiid, and to realize it for liis owr. benetit. his 
 rights are the same in regard to iiconey <li]iiisited: 
 and >\here in an alimc'iiy suit the statutory liond 
 under a wiit of ne exeat has lieen given, the 
 
 for surrender. < I rlf r.ton v. Corbill, 8 I'. K. 517. 
 —Osier. 
 
 \Vhere theplaintiS in an alimony suit obtains 
 a writ of arrest and the defendant gives bail, and 
 ii breach of the bond is eonnnitteil, the ]ilaintiir 
 is entitled to have the anmunt for which the 
 writ was marked jiaid into court, to be applied 
 from time to time in pa>mcnt of the idimony 
 and costs : and, Semble, that upon such payment 
 the suietics are entitled to be discharged from 
 their bond. Smlhuin v. 2\'(<(//iinii, 'J!) t hy. 117 
 
 I AVlieie, under a wiit of arrest, a caption takes 
 place, the sherill is entitled to a bond for <loublc 
 the amount marked upon the writ. Jb. 
 
 111. Si'iciAL 1!ail-Coi-ts UNDER R.S.O.c. no 
 
 .s. :u:i. 
 
 Defenilant was aiiested and he'd to bail for a 
 debt alleged by plaintill to be :;704, but the 
 lilaiiitill recovered only S4S!). As to :;<S0 which 
 the jilaintill' failed to recover, it nas held on the 
 facts stated in the report of the case that he had 
 no reasoiuibk' ground for believing defendant to 
 liable and he ab;indont(l it at the trial, but as 
 
 phimtin IS tviititkd to have the moneys <kp..sited ^„ ^1,^. ,,,i,^,. ,„„.tj,„ i,„. ^i.i^.), i^^^ |i,ik'd he had 
 
 as collateral secuiity th. iel(,r, paid into court. ,.^^^.„„„;,|,k. ground :- Held, the plaintiiV was en- 
 
 ami applied in dischaigingarrtaisolalmiony. //-. tjt,^,i ^„ t„^ i,j^ ^.,,^4^ „, .lefence against the 
 
 'Hie defendant was arrestid under a ca. sa. and plaintill under I!. S. O. e. 50 s. 34;}. Porrilt v. 
 
 afteiwaids admitted to bail. 'Hie trial was in /V«.<» c, 8 1'. 11. 4:30.- 
 
 - Osier. 
 
 the vacation before Michaelmas 'lerni, and the 
 render in the vacation alter that teini. The ■ 
 plaintill' liaving omitted to charge the deleiidant 
 in execution during Hilary Term ; — Held, on an 
 application lor a supersedeas, that the render in 
 Michaehnas vacation related back to the preced- 
 ing term, which should count as one of the two 
 teims Mitbin which the plaintill must charge 
 the defendant in execntion, under l!eg. (icif. 
 H. T. 'Jti(jeti. III. The defendant was therefore 
 discharged. Uoldhiij v. Muckiv, 8 1'. U. 'J37. — 
 Osier. 
 
 r.AII.MKNT. 
 
 AVheie jossession is changed it need not Ix' 
 given personally to the ernlitor, purchaser or 
 nioitgagee ; it may e(jiially be given to a trustee 
 or bailee for him, and the debtor may increase 
 the claim of sue': bailee or may cliarge tlie goods 
 with fuitli' • sums in favour of other persons. 
 ]iJ,JI(i.sl,r ':t al. V. GaiiuiK. it «/., 31 C. P. 3'JO. 
 See, also. Olirfr v. \inlwu»e, 32 C. P. 90; 
 Judgment was signed against defendant in Truoji v. //(.n, 7 ». 0. K. 512. 
 
53 
 
 BANKRUPTCY AND INHOLVENOY. 
 
 [)i 
 
 BALLOT. 
 
 See Parliament. 
 
 BANKRUPTCY AND INSOLVENCY. 
 
 L As.SIONMENT FOR THE BeNEUT OF CREDI- 
 TORS. 
 
 Execution of, 53. 
 What Projierti/ Passes, 53. 
 HmkriiKj and Ddaijlnij Cnditurs, 54. 
 Creditors holdiiKj Secnriti/, 54. 
 5. PrefcrentinJ ami Fraud identAn.iinnmeids. 
 See FuAUDUi.KNT Convkyancks. 
 
 IL In.solvi;nt Acts ok 18G4, ISO!), 1875, and 
 18"'.>. 
 
 1. Jurinilictiim <if Iiisohriil Court, 55. 
 
 2. Who may come under, 55. 
 
 3. Repeal oj Act, 50. 
 
 4. Preferential Assiipnnenfs. 57. 
 
 5. Asslijnee. 
 
 (a) What Property vests in, 57. 
 
 (b) Nij/hts, Duties and Lhdiiliths, 58. 
 
 6. Proof of Deltts. 
 
 (a) Creditors holdhnj Security, 59. 
 
 (b) Partnership DMs, 59. 
 
 (c) Setoxr, (iO. 
 
 (d) Interest, CO. 
 
 7. Fraud anil Fraudulent Prrfirences. 
 
 (a) Transactions I'ro/rc/id, (!1. 
 
 (b) Transactions A roidid, ()2. 
 
 (c) Fraud in ()lituinin(j<loodsurCredit,{"i^. 
 
 8. Dischan/e, 04. 
 
 III. When In.solvent ordered to GIVE Secu- 
 RiTV I'oR Co.sTs— iScc Costs. 
 
 IV. Takino Mai.iciocs PiiO(Ki:iiiN(;s in 
 Bankim iTcv— .SVr Mai.kkhs Ai;- 
 KKsr, rnosEciTiox, and other Pro- 
 ceed! nos. 
 
 L Assignment for the Benefit of Creditors. 
 L Ejcecution of. 
 
 The assigniiiunt in this case was uxcuutuil by 
 (iiie paitiiur, at tho rciniust of his co-iiartiitT, in 
 thu partuiTsiiiii iiaiiit', and \v;is iiiailu at tlie re- 
 (jutst of suveial cruditois :--Hcl(l, that the as 
 sigiiinciit was imipurly oxucutod, and that theru 
 was suthcii'ut assent of the creditiirs. Sidan v, 
 Duuuelli/ It al., 4 O. W., C. P. D. 440. 
 
 2. What Property Passes. 
 
 On the 20th May, 1880, two ehattel ninrtgages 
 were executed by tlie plaintill' to one J. G. One 
 mortgage was to secure .'?2 1 5, and interest; the 
 otlier being a security for certain promissory 
 nctes of the mortgagor endorsed by the mort- 
 gagee, which had been di.scounted by the defen- 
 dant, who was the holder tliereof. On the 24th 
 July, botli the mortgages, togetlier with the 
 goods and chattels comprised therein, were 
 
 assigned to defemlant by J. (i. On the 22nd 
 July, previously, K. (r. and .1. (i., who had been 
 trading in ])artnei'ship, a.ssigned to O. and K.. 
 upon tru-it for tlie l)enelit of creditors, amongst 
 other things, all the grain, farm stock, crops, 
 whether growing or cut, and other chattels and 
 effects of the said assignors, or either of them, 
 wheresoever situate, and also all mortgages and 
 all other personal estate wheresoever situate of 
 the said assignors, or either of them, or in whicli 
 any of them had any right or interest; — Hehl. 
 that the terms of tho deed of assignment to <). 
 anil K. were sullicicnt to include these mortgages 
 and tlie goods comprised in them, and therefore, 
 as regardeil the lirst-named mortgage, there being 
 no contrary intention, it passed uiidta' the deed, 
 so that tlie sul)S(MH,ciit assignment of that mcu't 
 gage to the defendant was of no avail ; but as 
 reganled tho other moiti^agc. the iK'fendaut being 
 tlie beneficial owmr tliereof, as holilcr of the 
 notes secured thereby, and the mortgagee having 
 no interest therein, there could be no intention 
 that it should puss under the deed, and therefore 
 it pas-ied to the def('nd.int under the assignment 
 to him : -Senible, that there was evidence to 
 shew thiit tlie iilaintilt recognized the <lefen<lant's 
 title as assignee. Sutton v. Arnistroiiij, ;}2 C. P. 
 1). 
 
 3. Jlinderiii'i and Di-lni/in;/ Cnditors. 
 
 An assigiinient in trust for creilitorsof a small 
 stock of goods valued at al)out .S-'.W, and some 
 land, made to a person not a creditor, contained 
 a provision empoweiing the assignee, without 
 consulting the creditors, to carry on the busi- 
 ness, and wind it up, no time being stated 
 therefor: to pay all salaries, wages, &c., and all 
 advances made in goods and money for conduct- 
 ing said business in the winding up tliereof, to 
 the best advantage, which ailvances ho was 
 authorized to make, and also to sell tlie said land 
 as to him should seem meet, and to retain a 
 re.isonable coiniieiisatioii fertile execution of tlie 
 saiil trusts :— lleld, Wilson, C. •! ., dissenting. 
 atUrming the judgment of Hagarty, V. .)., that 
 tlie assignment was void, as containing provisions 
 
 I hindering and delaying creditors, and such as 
 they could not reasonably be re(juired to agree 
 
 ! to. Callaijher v. Class, 32 C. P. ()4l. 
 
 I An assignineiit in trust for creditors contained 
 1 a clause wTiicli, amongst other things, einpowci'cd 
 ! the trustee to sell for cash or on credit, and with 
 i or without security for the unpaid purchase 
 i money :— Held, that the introduction of tlie 
 j worils "with or without security" was imiua- 
 I terial, and did not invalidate the assignment, 
 ■ thi;re being no proof of any design on the part of 
 i thti debtors to so enalile tlie trustee to unfairly 
 
 delay the realization of the assets. O'Brien el al. 
 
 V. iJlarksun, 2 O. {{., i). B. D. 525. 
 
 4. Creditors holdimj Securiti/. 
 
 The plaintiff, the bidder of a ehattel mortgage 
 with a covenant for payment, was not scheduled 
 in proceedings in insolvency under the Act of 
 1875, but he was aware of the proceedings, and 
 tlie insohent obtained a tinal discharge : — Held, 
 that the delit under the ehattel mortgage was not 
 extinguisiieil. A subsciiuent common law assign- 
 ment for the benefit of creditors was made by the 
 
 
BANKRUPTCV AND INSOLVENCY. 
 
 no 
 
 (Itlilnr iif nil jiis i)i()|iiTty to tlic (Icf'ii'l.uit in 
 tiMit to [piiy iX|><li'i'S, fir., (iliil "to Mjiiily tlu^ 
 linl.iiicc in 111' (iiwai-'ls p.-iyniint (if tln' ililits of 
 till! asi^i^'niir in |iin|ii)rtiiin tu tlirir i(s|iii'tivt' 
 iUiKiiuits williiiut |iit'ti Tciiri' iir |iiiMiity." llclil, 
 tli.'it till' |i|iiiitiir wiis (iititlcil til sui; fur tlic 
 wliiilc lii'lit. .•mil tlii'ictoru t<i shiirii in the I'st.iti- 
 |irii]i(irliiin:itily nmlcr tlic ilei'd fdi- tlio wlinlc, 
 ami that hi' was nut lionnil tu vuIul' his srciirity 
 anil rank Inf thi- halanoo (inly. Jiaily v. •'iinitiiil, 
 2!» Chv. Id.-). 
 
 ]]. iNsdi.MNT Acts 111- ISOI, ISOt), KST.'i, and I 
 IS7!). 
 
 I. ,1 i:r'i<iliftiiin of I iixnli-i'iit Ciiiirt. 
 
 In isT.'i, •!. M. anil J). M. uiitcri'il iiilu iiartiicr- 
 sliip, iirtain assets (if .1. M. licini,' transfciri'il to 
 tile iiai-tiici'slii|i, iiiit iKithiiii,' licinj,' saiil as to his 
 lial'-Iliii'M. In I.S7(i. the (inn having liccoiiic in- 
 sulvriit, H. was a;ilioiiiti'il assiLjiicu. 'I'hr |ni-t- 
 lU'ishi|i I'leilitiii's were |iaiil in full, anil a siiiplns 
 iTiiiaiiiiil. I •. M. then |ietitioiie(l the ciiiinty 
 jnili,'e in insiilveiiey to iliviile the s.aiil sui]iliis 
 lietweeli liiin aiiil .1. M.- H. then eoinineiieeil this 
 suit airainst l». ,M. to have it deelareil that the 
 saiil |i.iitnershiii deed was nut liimliiiL,' n|ioii him 
 as siii'li assij,'nee, Imt that the |iartnersliiii ileeii 
 niiLjht lie declared haildnlent .and void, and llrit 
 the colli t iiiii,dit t.iUe an acconiit of the jiartiiei- 
 shi|i ]irii|iei'ty, and make divisiun, and for an 
 injunction rcstrainiiiL; 1'. M. fiuiii fiiithcf ]irii- 
 ceeilini,' with his jicti'ion :--lleld, thit'the In- 
 solvent ( oiirl had juiisdiction to deal with the 
 matter, .iiiil this lieiiii; so, was the ])io|iei' trilm- 
 iial to do so, anil this court would not intcrferi'. 
 JSi'll v. Mi-Diwijiill, -Z (). li., Chy. J). (ilH. 
 
 2. HVio mnij ciniii' mulir. 
 
 One ('., ii jinictisiiiLC li.-irrister, de.ilt lar!.'cly in 
 land traiisMctions. Imt it was not shewn tli.it he 
 de)icnileil thereon for his living. hccnniiiiL; in- 
 Bolvcnt, ]iroceciliiij.rs uiuier the Insolvent Act of 
 187") were taken ai.',ainst hini. 'I'lic ]ilaintill' w is 
 assii_'nec of a niii)t|.'ai,'e made liy ('., and liriiuj.'ht 
 suit thereon ajj;ainst II., the assiL'iice in insol 
 veiicy of ('., and I), and others, the owners of 
 parts of tile morti,'.ii,'eil lands. It was oliiected 
 fiy l>. til it (". shoulii havi'iiccn made a (larty : 
 ]lelil, thiit ( '. was not iv tr.idcr within the nic.ui- 
 ing of the Insolvent .Act and that liothiiiL; |i.isseil 
 to the assignee in the insolvency Jiroceedings. 
 C was therefore decl.ired to lie a necessary 
 jiarty, and le.ive was given to add him as a de 
 fcndant. Jomji/i v. I liijj'tiir, '2!M'hy. 421. 
 
 This was an ajipeal from a judgment of the 
 Suiirenii' Court of Xova Scotia, making the rule 
 nisi taken out liy the res))iindents alisolute to 
 set aside verdict for ]ilaiiitill'an(l enter judgment 
 for the defendants. The action was lirouglit liy 
 ('. as assignee of L. I'. I''., under tin; Insolvent 
 Act of 1875, for several trespasses alleged to 
 have lieen co/nmitted on the propertj' known 
 as the .Shulienaoadiu Canal property, and for 
 conversion by C. et al. to their own use of the 
 ice taken od' the lakes through which that e.inal 
 w.is intended to run. The declaration contained 
 six counts, th(! plaintitl' claiming as assignee of !•'. 
 Anioni' the pleas were denials of coinmitting the 
 alleged wrongs, of the property lieing that of the 
 plaintil!', and of his possession of it, the last plea 
 
 liciiig tli.it " the said iilaintiflT was not, nor is 
 such assignee as alleged." .After the trial linth 
 eiiiinscl declined addressing the .linlge, and it 
 was agreed that ;i verdict should lie entered for 
 tiie ]il.iintin' with ■'r'Kl daniiges, siiliject to tlio 
 iipiiiiiin of the ciinrt, tli.it the parties should he 
 entitled to take all olijections arising out of the 
 evidence and minutes, and that the court should 
 li.ivc power to enter judgment for or ag.iinst the 
 liefcnd.ints with costs. .A rule ni'i lor a new 
 trial to lie granted accordingly, and filed. The 
 rule was tnken out as follows :—" (»n reading 
 the minnti^s of the learned .liidge who tried the 
 cause, and the jiapers on tile herein, anil mi 
 motion, it is ordered th.it the verdict eiitereil 
 herein formally liy eonseiit suliject to the opin- 
 ion of the court, with power to take all olijec- 
 tions arising out of the evidence and minutes, 
 .•mil with power to tlit; court to i^ntcr judgment 
 for or against defendants, with costs, lie set 
 aside with costs and anewtri.d granted herein." 
 This rule was made alisolute in the following 
 terms :— "On arguniLnt, etc.. it ia ordered that 
 the rule nisi lie made alisolute with costs and 
 juilgment eiiteied for the defendants against tlic 
 plaintitl' with costs." Thereupon iil.iintiH" aji- 
 ]icalc(l to the .Su|ircnie Court of Canada, and it 
 was; — Meld, (Henry, .1., dissenting), that hy tia- 
 vcrsiiig the allegalion of plaintitl' lieing assignee, 
 the defeiidaiits put in issue the fact implied in 
 the averment, that the )ilaintitr was assignee in 
 iii.solvciK^v. and tli.it I'', w.is a trader within the 
 meaning of the Insolvent .Act ot IStiil, and as the 
 evidence did not cst;ililisli that V. liought or sold 
 in the course of any tradi^ or Imsiiiess, or got his 
 livelihood hy Inlying and selling, that the plain- 
 till' failed to prove this issue : I'er (Jwynne, .1 : 
 Assiiiiiiiig 1'. to lie a trader still the defendants 
 were eiilitled to judgineiit upon the merits, 
 which h.id licen argued at length. That the 
 agreement at nisi [iriiis aiitliori/ed the court to 
 render a verdict for pl.iintitl'or defendant accord- 
 ing as they should cmisiiler either liarty upon the 
 law and tlic f.iets entitled ; that the court, hiv- 
 iiig exercisi d the jurisdiction conferred upon it 
 liy this agreement, and rendered judgment for 
 the del'eiiil.iiits. this court w;is also liound to 
 give judgnicnt on the merits, and as judgment of 
 the court lielow in favour of the defendants was 
 snhst.inti illy correct to sustain it ; and it having 
 lieen olijeeted that as the rule nisi asked for a 
 new trial the rule alisohite in favour of defendants 
 was erroneous, that such an olijection was too 
 technical to lie allowed to jircvail, and that the 
 rule nisi, h.iving, as it did, recited the agree- 
 nicnt at nisi injiis, and the court lielow having 
 rendered a verdict for the defendants, it shoidil 
 he uphi Id, exce[it as to the )ilea of lilieruni teno- 
 nieiituni. which should lie found for the plaintiff 
 or struck oil' the record, .'ind that to order a new 
 trial could lie lint to luotiact a useless litig.ation 
 at grc.it expcn.se. ( 'rchiliUiii v. L'hitlickit al., 7 8. 
 C. 11. 'MS. 
 
 3. Repeal of Act. 
 
 The repeal of the Insolvent Aetdoes notaffoct 
 any insolvent whose estate has vested in the 
 assignee prior to the rcjical. Cooper v. K'ti'k- 
 jintrirL; 8 1'. U. 218. — Ualton, Q.C. 
 
 Held, that the doctrine of iiressure wliich ob- 
 tained before the insolvency laws now occupies 
 
ru 
 
 B A N K Ll U PIC Y AND 1 N 80 1. V I-: N C Y. 
 
 58 
 
 tlio same pdsitioii siiioo their rciuiil. /Irniilii/ v. 
 Hllixrtid., I (). It., Chy. I>. Hi*. Alliiiiii;.! on 
 ai.peal. Suu "JO C. I.. .1. 144. 
 
 (JuiiTC, wlu'tliiir, wlicro im iiiHolvmit'.-i u.stiti; 
 vested ill mi a.s.si^'iiee iimler the Insolvent Aet 
 before its rejieal, the action for tliu alh:L;eil fraud 
 was a proceedini,' tliat ini;,'ht lie continued lliere- 
 uiider under the ternm of thi! i'e))o.'dinL; Aet, 4H 
 \'iet. c. 1, l)oni., or of the lnter|)retation Aet, 'M 
 Viet. c. J, Doiu. ; and wlietlier, also, the s. \'M\ 
 of the Insolvent Aet of 187.") was ultra vires of 
 the Doiniiiion rarliainent. Iteiiiark.s as to the 
 dill'irence lietu'eun s. I.Sli, and lhiMMirres])oMdin;! 
 provision in s. '.12 in the insolvent Aet of ISGl). 
 LUihtlmumlv. Jlill, :«(.;. IM'!)4. 
 
 See Pvik ft <ll. V. ,S/ii<'/its r/ til., (> A. I!. (i:!'.t, | 
 p. (;;{ ; Chtrhon H al. v. Wliiti-d nl., 4(). I!. (iliiJ, 1 
 p. o8. 
 
 4. I'nj'ircnlkil Amiiiiiiiiiiiil^. 
 
 Action of debt by the plaintifF claiming under 
 a deed of composition and tliseharye, as assiunuo 
 of the asKignee in insolviniey of aeo-purtMi^rsliip, 
 whereby the debt in (iiiestion was assi^'ncd to 
 liini. I'lea, setting out the deed win rcliy the 
 plaintid' covenanted with all the creditors, col- 
 lectively and severally, to pay them and e u li of 
 thcni 50c on the .S of their rcspc;ctive ihiinia 
 against the .said insolvent linn, and on conlirma- 
 tion of the deed to p;iy the costs resiieetiiii,' the 
 in.solvcnt lirm's tatatu * * ami the prt^fireii- 
 tial claims ai,'ain.st the said linn, in consideration 
 of which " the said creditors" released to the 
 insolvents their claims ;igainsttlieni, and directed 
 a conveyance of tlii! insolvent linn's cslatc to 
 them, and plaiiitill' averriiij; that at the time of 
 the assignment of the debt to the jilaintiir there 
 were separate debts of the insolvent, or one of 
 them, unpaid and nnsatislied, which were not 
 provided for by the deed :~ Meld, that the dceil 
 provided for the payment of firm creditors only, 
 and did not include .sc]iar;itt! cnMiitcirs, and 
 therefore that the pl;untill"a title to tln^ debt 
 failed. McKUrkk v. llaliy, 4(1 (^ 1!., 'J 1(1. 
 
 .Sec 11. (i (b) p. .v.). 
 
 5. A.suhjnvi'. 
 
 (a) Whul ProjH-rlii r/'x/x in. 
 
 Upon the death of one inenibcr of a lirni, .and 
 the subseiiueiit insolvency of the sni vivinj,' part- 
 ners, the joint estate passes' to their assignee in 
 insolvency. Hut where the capital of surviving 
 ))artiiers having been lost, they, while the estate 
 was supposed to be solvent, coiiveye<l the same 
 to a trustee for creditors upon the rc((Uest of the 
 executrix of a deceased partner in consideration 
 of a release by her from all liabilities ; and the 
 executrix afterwards, upon obtaining probate 
 conveyed her interest to the trustee ; and sub- 
 seiiUeutly through a shrinkage in value the estate 
 became inaullicieiit to meet the liabilities, it 
 Was : — Held that by the assignment to the trus- 
 tee, at the retjucst of the executrix, for \ aluablc 
 eonsideratiou, they had parted with all intiiicst 
 in the estate and nothing passed to the plaintill", 
 as assignee, under iiroeeedings in insolveiu^y 
 taken on the supposition that the ;is.signnient to 
 the trustee was an act of insolvency, and that 
 the assignment to the trustee not being ipies- 
 tioned ou the ground of fraud, the assignee of the 
 
 siirvivor.s was])rccluded from any enquiry. Ihicitl- 
 tiim V I'li/iji-', lis Chy. 1)1. 
 
 A mortgagor and niortg.igee dealt together for 
 some years without having any settlement of 
 ac(-ouiits, and the foinier bee.inie insolvent. At 
 the date of the insolvency there (ixistcd ,i right 
 of set-oir in favour of the mortgagor for the 
 bal.ance due him on their gem ral dealings :- — 
 Meld, allirming the liniling of the in.istiM' that 
 siieli right of set-oil passed to tlii^ oHii;ial assignee 
 of the mortgagor, ;ind that a transferee of the 
 siicurity took it subject to the eipiity. Court v. 
 ll<,lliind,2S) Chy. lit. 
 
 It appearing that )iait of ( '."s assets w;is certain 
 railway stock, obtaincil by him on a contract, 
 that he was to ret.iin one-half, if lu! could give the 
 stocka m.'irketable value, but that if he eoiilil not 
 do so within a certain time, extending beyond 
 the periocl of the insolvency proceedings, the 
 transaction was to be void, and he was to re- 
 tr.iiisfcr : -Ilehl, that the shares should have 
 lieen returned in his sworn statement as part 
 of his assets, for the language of the statute was 
 lurge enough to cover such an inlerest. It was 
 a valid executoj-y contract, and as such jiassed on 
 insolvency to the assigiiei!. Mrder v. i'aiiiiihiU, 
 2 O. 1! , Chy. I), l.-io'; 2,S Chy. .'JOS. 
 
 The ])ayee of a promissory note m.ide and pay- 
 able in Ontario, who had absconded to .Michigan, 
 while there, ,ind after a writ of attachment in 
 insolvency had issued against him in Ontario, 
 enilorscd the note for good considiM'ation to the 
 plaintills, who took it bona liilc. Mvidcnee was 
 given to luove that by the law of Michigan the 
 endorseineiit was suliieicnt to pass tin,' noti^ to the 
 plaintiti': -Meld, revusing tin; judgment of the 
 County Court, that the plaintills could not 
 recover, as the title to the note had vested in the 
 assigne(! before thi^ endorseini^it, and that his 
 rights thereto could not be aU'ectcd by the law 
 of Michigan. Jnd.s d n/. v. J)i)riui, it A. K. .'iuS. 
 
 An assignee in insolvency is entitled to all the 
 earnings of an insolvent which arc earned after 
 the assignment in insolvency, and befoie dis- 
 charge, over and above what is necessary for the 
 reasonable maint.'iiance of the insolvent and his 
 family, 'riierclorc, w heie an insolvent, pending 
 his discharge, a|)plied part of his earnings in the 
 ]iuicliase of land for the beiielit of his wife : — 
 Meld, that to the extiait of earnings so applied 
 the a.ssignee w;is entitled to a lien on the land. 
 Vlart-«iii it al. v. \\'/iil<- H al., 4 < ». [{., Chy. IJ. ()(!:{. 
 
 Held, also, that the rejieal of the In.solvunt 
 Acts by 4;{ N'ic. e. 1 (D), before claim made, w.-xs 
 no bar thereto, the estate of the insolvent having 
 vested in the assignee before April 1st, bSSO, and 
 there having been no reconveyanco of the pro- 
 pi rty to the insolvent, who had, however, ob- 
 tained his discharge before action brought. //(. 
 
 See also Wuothrard <t al. v. Shu'ldx, 32 C. P. 
 282; 7Vo-v' v. Hart, 7 S. C. 11. 7>\1. 
 
 (b) liiijhtx, Diiliix, and Lmhiliticn. 
 
 An .assignee in insolvency bona fide suing in 
 discharge of his duty as such assignee, will not 
 be rciinireil to give security for costs on the 
 ground that he is without moans and not bene- 
 lieially interested in the suit. I'd/vs v. Oonld, 8 
 I'. 11. 31. — Stephen.s, Jfi/'tree. 
 
 c:: 
 
 r- 
 
 5; 
 
no 
 
 I'.AXKlikllTCV AND INSOJ.VENCY. 
 
 (50 
 
 Tlio ]iliiititifr, an aftoriiiy, whh the <inici;il jih- 
 sijiiicc lit an insnlvint i stat.'. He lucniulit an 
 actinii nil lirli ill' (if the olatc and llsf(l Ills own 
 naini' a.s tlii' atlnincy on tin' n'cnid. 'j'lii' plain- 
 titr(il)tainiil a vcnlii't : IK'M, that iiniltT section 
 ',i'2 of tilt! liiHolvcnt Aft of I.ST"), hi' wan t'lititlcil ' 
 to tax ilisliiiiscnii'iits iiiily a;,'aiiist the (hfcnilants. 
 Aijiiiir V. />'i-i^, S r. i>. 07. -OsIlt. I 
 
 In trov<'r for>,'ipoilM a>;ain.st an aHsiynce in in- I 
 solvency, -Held, following,' lie Mairctt, !> A. 
 I!. '2(H). that the aMsii,'nee may olijci^t to the ah- 
 wence of a liill of sale on an alle^^ed sale liy the I 
 insolvent just as an execution eieditor or siilise- | 
 (jiieiit ](nrcliaser for value may ilo. Simrr v. 
 Siiiilli, 4.'t i). I*.. I.'i(i. 
 
 I'lion the insolvency of the lessees, then^ were 
 j;ooils njion the )ireniises lielonjiiiiL,' To them, and 
 other f^ooils stored \\ ith tlieiii, sullicient to pay 
 the taxes in arrisir ; and a warrant hcin^' issued, 
 the liailifl' notitied the assii,'nce, hut forhor. to 
 ilistrain o!i the assi^'iice's ]ii-omise to pay, which 
 jiromise was contiiiiicd hy the ins]ie('tors of the 
 estate. The l'ooiIs having Keen :iftcrw;irds re- 
 moved, an order was made directini; theassi;;nee 
 to ji.ay the taxes forthwith, w ith all costs. Jii n- 
 lium'H, Insdlri'iiln, .5 A. I!. I{.")!{. 
 
 Held, aflirmini,' the judgment of the Connty 
 <>)urt,tliat under see. (>7 of the Insolvent Act of 
 187">, all dehts exccediiii,' .SUM) must he sold sepa- 
 rat(dy, mdt^ss where there is a sale of the whole 
 estate en hloe ; and the |)ureliaser of such adeht, 
 otherwise than thesecticui directs,cainiot recover 
 against the debtor. Fhkcn v. O' Xi-ill, (iA. 11. 'J!t. 
 
 The rule of law which retjuires a mortgagee 
 ael' iig uniler a jiower of sale in his mortgage to 
 observe the terms of such power, is also appli- 
 cable to sales by a trustee or i|uasi trustee acting 
 under a powtM'-the power must be followed, and 
 the rule ajiplies with e(]Ual force to sales by an 
 assignee of an insolvent estate, under the Act of 
 I8()!t, sec. -*7, who in such cases acts under a 
 statut()ry power atitliorizing a sale, "but only 
 after advertisement thereof for a [leriod of two 
 months." An assignee proceeded to sell the 
 lands of the insolvent without giving notice of 
 such intended sale " for a i)erio(l of two months " 
 as prescribed ))y the Act, no sanction of the 
 creditors thereto, hiving been given : — Held, a 
 good objection to the title by a vendee of the 
 j)urchaser at such sale, fa re JarnU v. C'liiik; 2!) 
 Chy. .ms. 
 
 Retainer of solicitor by assignee under Insol- 
 vent Act 1875. Liability for costs. Hue linUer- 
 jiM V. Wdls, 4 O. K. Kis. 
 
 G. Proof of DchU. 
 
 (a) Cii'ilUors holdlmj Security. 
 
 Under the Insolvent Act of 1875, a creditor 
 holding security at the time of the insolvency, 
 cannot realize the security, and prove on the 
 estate for the balance. Kc Hurst, .SI Q. H. 110, 
 connuented upon. Jte Bcalij, an Innolvent, C 
 A. R. 40. 
 
 See Beatii v. Samuel, 29 Chy. 105, p. 55. 
 
 (b) Partnership Deht». 
 Where, upon the dissolution of a firm, the 
 
 business is continued by one of the ]iartnurfl, who 
 assutnes the li.ibilitics, the joint assets remaining 
 in specie are primarily apiilicable to the payment 
 of tile joint creditors of the lirni. Ilf Walkvr, iiii 
 /n-'ii/rnil, (i A. I!. Kii). 
 
 Held, that under sec. 88 of the Insolvent Act 
 of 187"), if the dividend is derived wholly out of 
 joint estate, the joint creditors alone can share 
 until fully paid ; if wholly out of separate estate, 
 it belongs entirely to separate creditors till they 
 are paid, and if p.irtly out of each class of assets, 
 it should be divided pro rata between each class 
 of debts. //(. 
 
 ,See Mi-Kilrirkv. Iltihy, 4(! (J.B. 24(i, p. .17. Sec, 
 also MilU rl III. v. h'er'r i-t «/., 7 A.U. 7<ii» ; Ken- 
 The Canadian Bank of Commerce, 4 O. U. ((52, 
 
 (c) .Set-of. 
 
 Hy a lease, made by the defendant to the 
 insolvents, the lessees were "'to get pay for im- 
 provements at a fair valuation, and to have the 
 right of purchase during the term " by paying 
 the lessor lirst all claims by w.ay of notes, or 
 otherwise he holds, or may hold against the said 
 lessees, anil the sum of .^235. 15 as purchiise 
 money," &c. In .lauuary, 187.'"', an attachment 
 under the Insolvent Act of I8(i!>, was issued ; 
 and in March defendant filed his claim, which 
 incluiled a note for .'5500, most of which sum had 
 been expended in imj)r()vements, and had been 
 obtained lor that purpose. There had been a 
 valuation of the improvements at the out of 
 the term in 1877, at ii<275, in which defen- 
 dant (lid not take ]iart, and the .assignee sued 
 defendant for that sum on his covenant :— Held, 
 Armour, .J., dissenting, that the note formed an 
 eijuitable if not a legal set-ol! ag linst the claim ; 
 that the riglit to such set-otl' was matter of pro- 
 cedure, and governed therefore by the Act of 
 1875, not the Act of 18(>0 ; and that defendant 
 was not precluded by having proved his claim, 
 t^iiiere, whether under the lease the paytnuut of 
 defendant's claim was not a condition precedent 
 to his paying for improvements. Manon v. 
 Maalomlil, 45 Q. 15. Il.'l. 
 
 The (liU'erenco between our insolvent law, as 
 to set-oil, and that in Kngland and the United 
 States remarked upon. Jh. 
 
 I'cr Armour, J., the (juestion was governed 
 by the Act of 18(il), and the plaintiti's's claim 
 not being li(juidated, the defeudaut's claim could 
 not be the subject of sct-otf. lb. 
 
 (d) Interest, 
 
 After p.ayracnt by an insolvent's estate of 100 
 cents in the dollar the creditors cl.aimed interest 
 on their claims out of a surplus in the hands of 
 the assignee : — Held, (reversing the decision of 
 the court below) that notwithstanding the pro- 
 visions of Sfcc. 90 of the Insolvent Act, interest 
 was payable on all debts originally bearing inter- 
 est by contract or otherwise, but not where it 
 was claimable by law as damages only : — Held, 
 also, that the claim to such interest was properly 
 brought before the court by petition tiled by the 
 inspec.ors, who, acting under a resolution of 
 creilitors, had re(juested the assignee to pay such 
 interest. In re McDouijall, 8 A. 11. 309. 
 
(il 
 
 r.ANKllUPTCY AND INSOLVENCY. 
 
 (\2 
 
 7. rniml (Hill Fiiiiiiliiliiil I'rififi'iiiun. 
 (»,) Tniiisdctiiiii'i J'rohiiiil. 
 
 'I'lic ilfl'ciiiliints iliHCdunti'il at ;i li.uik ;i ))niiiiis 
 •inry iicitt! which A. hiul ;,'ivcii thrtri, uiid on 
 iiiatiiiily it wan liaiil to the liaiik (Hit of A.'s 
 iiKiiicVs " itliiii thiity (lays nf liis iiisulvciicy. hi 
 an acticiii liy llic a-ssi^iicc to rccdvcr tlic ainniiiit 
 tidlii the (It^lciiilalils as hciii;!,' a |iayiiu lit \\ ithiii 
 s. l:U(plth(3 liisdlvfiit Act (pf 1S7."); Ilclil. re- 
 verting,' the (lecisimi o( thc^ ', '(iiiiity ('(iiiit, tliat 
 were not lial 
 
 valiK^ (if the sreiiriticK sii tr insferr('(l, wliich 
 Wdllhl not (itherwise liave lieeii iMa(h' : Meld, 
 that tile liiiik hail iiotthert^liy iihtaiiii.'il an iiii.jiist 
 lirifereiice, luid tlierefdi'e the traiisiietidii foiilil 
 lldt lii^ iliilie iidlcd. //;. 
 
 The iiisiilveiit iiiailt! n cftHh ])ayiiieiit (if .'jil.dOO 
 td the liaiik a few days liefoie his iiisiilvenuy, liiit 
 it wasswdiii thitheliad liceii iilhiwedtiidverdraw 
 ii|idii :iii aj,'reeiiiciit tn cdver it liy this |iayiiieiit, 
 and it was not shewn that tln^ hank iiiina^^'iT 
 had, at that time, pi'dlialile c iiise t(i liclicve in 
 
 they were not lial.le, as the paynicnt was iidt his inal.ility to iiii'e't his eiij^MKeineiits in full :- 
 
 made td them, Imt tii the hank, who w.'ic th(^ ||,,1,1_ that this i ley c(mhl not lie rec-oveivd 
 
 actual ereditdis. Milhr y. /liirn i/, (i A. 11. '20',i. ||.^,.|{ //,_ 
 
 I), had lieeii in the lialiit of dlitaininj,' iVdin the ^ ij,,„„ the arrangement for a deed of eompdsi. 
 (kteiidaiit (liMCdunts, at an .Xdihitaiit rate of in- , tiim and dis('hari,'e,the creditors reiiiiiied security 
 teivst, dl notes reiuMved hy I), in the nmrse (,| j ,■„,. |,.^y,„^,„t „f t|„. ,,„,„|„„iti„„, ,i,„| ,„„, M,.ikl,,. 
 his liiisiness, very lew, il any, ot which were paid i ,^ ,.,.,.|iitor, a;,'ivcd to (Midc 
 
 the coinpositioii 
 
 atinatnrily so that in the course (.1 al.oiit two ; ,„,t,„, „|„,„ rccMvinj,' a iiiort;<a^'(; upon the pro- 
 years de diM.ns l>. s indcl.te. liess anidimted to i ,„,,.ty settled upon the insolvent's wife, securing 
 aliout i?i ,()()(>. At this time !>., who was icpre- |,i,„'j„ ,.,,^,„,,.t „f his endorsitidiis, and on pay- 
 sented as a man dl very san^'Uiiic teiiiiurinient, j nu'iit of .S-'.")f) in additi.m to his eimipnsiti.m :- 
 cnte|•(Ml into a new line ot Imsinossaltcrolitam- I |[,,,,i_ „„t ,^ f,.,i,„h,lent pivfcrenee within tho 
 iiig t'oo( s on credit to tin; anioiint ol s4. ()(((» or I „K,,n,i„,, „f the Act. /{.' /{iix.irU, 7 A. 1{. 777. 
 .•;.>,tllH), havint; represented to the persons Mii]Pl)Iy- 
 
 iiif,' Hiieh goods that, although without any avail- . A inorlgage is a " eontraet " witiiin the moan- 
 ahh: caiiital, he had experience in lii'isiiiess. | i'"g "f the Insdlvent Aet of I.S7r>, sec. l.SO :— 
 Ahoiit twclv(' days afterwards, I)., Iieiiig tlin.'a- j Meld, in the cir(minstan(!es stated in the rupiirt 
 teiied liy a nidrtgigee witii ldre('ldstire pnicecd- "f this case, that the dclcndaiit might hold a 
 iiigs, wiiich, if persisted in, would have had thi! ' !"ii""tM'>g''J i" '"is favour created liy a person in 
 elhet of closing up his hiisiness, ajiplied to till' I ""^"'^(Mit cireumstaiices for eertain advances 
 defendant, wlio advaneeil him s;«M>, part of I made hy the iiidrtgagees ediitcnipdraiiedusly with 
 which was ajiplicd in |iayiiig the overdue interest \ tl'*^ execution of the inciimlir nice, and also for 
 (111 the mortgage, and the surplus in retiring a I '"t"""" !i'lvaiice.s intended to he secured thereliy, 
 note of I). 's held hy the defendant, who graiiteil though it waa not shewn that such advances 
 
 1). an t'Xteiisioii of time on dtlier iKites held liy 
 liiiii.'elf at a reduced rate of interest (if paid 
 
 were m u'e for tin; purpose of enihling the inort- 
 gagor to carry (in his liiisiiK'ss, hut that such 
 
 liromptly) ; and th.' defendant tiieu intimated td : mortgage was not a valid seourity for antijcedeiifc 
 1). that he would have to work carefully to get I advances made hy the mortgagee, nor for notes 
 through. In a suit impc'aching the mortgage to ; endorsed hy the mortgagee for the mortgagor, 
 the delendaiit, it was Held (reversing the decree i hut not paid, in respect of which therefore ho 
 proiiouiieed hy Spragge, C.,) that the plaintilF had heen a surety only, not a creditor. Smifhv. 
 
 had not satistied the onus wliipih was cast uiion 
 him hy the Insolvent Act, of shewing that the 
 mortgage given hy I), had heen so given in cmi- 
 tcmplatidii of insolvency ; and, the presuin]ition 
 of lawheiiig in favour of innocence! and fair deal- 
 ing, the hill was dismissed, with costs. Mi-('rm; 
 V. Whijlr, 7 A. U. lO.S. 
 
 /Iiirriiii/toii, '_'!) Chy. .50"2. 
 
 Seo Diirlihiin v. Miniuiri'. 27 Ohy. 482 ; 7 A. 
 II. 93 ; n,- /{us.i,'ll, 7 a! II. 777, p. ««. See, also, 
 BoitHtead v. tikaw, 27 Chy. 280. 
 
 (1>) Triinxndhmn A nniti'd. 
 
 K. had a line of discount with the defendants i mu i -n i-i i i ii • • • 
 
 of §20, (HK), for which ,s.-,,000 cllatcrals were de- J^^"" l"" y"" 1 '"^- i^ the assignee in insolvency 
 posited as security. Sdiiietime afterwards his I "^ '^".« -' --*" ^^t •'«">« ? 'nortgage given l.y him 
 indel ' 
 when 
 Hccurity 
 which 
 
 Ivency 
 
 deposited. This was impeached hy the assignee 
 in insolvency of K. as being an unjust preference 
 of the bank : -Held, atfirming the decision of 
 the court below, that the transfer to the defen- 
 d.vnts, of the securities as collaterals was valid 
 
 if his brother .F, N., anil that he give .1. N. the 
 ■'5>2,OI)0 with which the note was retired. T. N. 
 swore that he [laid .F. N. the money in discharge 
 of a debt duo by him to .f. N. and P. N., another 
 brother. .F. N. also swore that the mortgage 
 
 insolvent had, in fa-.t, made the transfer in con"- I which surrounded this case, the onus w.as wholly 
 templation of insolvency. Ni-Ue-ix. The liiwk of 'M'."" ^''" <!cfen«lants, to prove_ not only _that a 
 
 Montreal, 28 Chy. 44!) ; 7 A. 11. 74.3 
 
 Another transfer had been made to the bank 
 within thirty days of the in.solvency, which was 
 also impeached, hut upon tho faith of which the 
 
 debt was duo from T. N., J. N. and R N.. but 
 that the money received by them in payment 
 thereof had been hon':>3Cly advanced to T. on the 
 security of the impeached mortgage, which the 
 evidence set out in the report failed to establish. 
 
 is; 
 
 c:: 
 
 ■€;• 
 
 bank had made advances to K. exceeding the | The rule laid down in Merchants' Bank i>. 
 
r;.'{ 
 
 UANKKUITCY AND INSOLVKNCV. 
 
 64 
 
 Cliukf, IS ( liy. ntU. that tiaiiH.ii tioiiH of tliis 
 Lllicl hIiiiuIiI liiit It lull! Mlllicitlitl.V (Ktalilif^luil 
 1p_\ tlio uiiciiirnlMiiatcil ti'Htliiioiiy of till' |iaitii'H 
 tiK rtto- iipiPiovrd of. Miirtiiii v. .\iliiiii it al. 
 r. A. I!. •.'((. j 
 
 'I hu |plaiiitillM,w ho wort' Hiili coiitrm'toiH for the i 
 Htoiif uihI liiickwork of a iMil.lic Mchool, ami u ho | 
 W( ID to r(t« ivc |ia_viiii lit fioui till' |iiiiici|ial inii- | 
 tiiu toiN, whoaloinuiTf ivi'o^;iii/.i<l liy the |ml.liu , 
 Hchool lioaiil, |iiniiii>Ml an a.-.sigmiitiit to lliiiii 
 hciveHof the lialaiicr iluc tiiiiii hy thf coiitiac- 
 tors for till ir <(iiii|iKtiil work, and payaKlo to 
 the contractors hy tin-- iMianl. Tlio icmtractorH 
 were at the time I'lnalili' to pay tliiir ilrl«t.->, uhich 
 the plainliir^ kntw, ami an allaoiiniiiit in inwol 
 Vfiicy i.MHiifd a^'iiiiHt thini within tiinc: nionthn 
 nft»rth('a^Kij.'iimi>ntolthi.claini: lldil.atiirniinj,' 
 the jmlgincnl ol I'romlloot, V. (.'., that the iian- 
 nactlon wan an iinjUHt itrdiiuici; nmU r m'l; I.SU 
 ol the hi^olvint Aitol I.ST") ; ami, S.nilih, that 
 it was al^o within the niuanin>< of miis. lliU ami 
 ];{•_', and till' iiiaiutills coidd not maintain a suit 
 toinforcf jiaynunt ot tho lialanec a.-si>.ni'd to 
 till in. (.'/■/>//(«(< «/. V. I'uiiii .{."■■'iijiin-, () A. l;. 
 (i7"-'. 
 
 iMPWcr to dial with IIm siilijci't of that section, it 
 Would lif hilidiiiL', hill if not, thill till' Haiiie uii- 
 actniint in x. S, snh h. 7, of the Act of l«(il, in 
 iiiiri:|i('ali'd and in forcu. Hi. 
 Sou Liijlitliiiiiml V. //;//, .TJ C. r. •-'411, p. r,7, 
 
 (c) Fnttid in ohliiiitiinj U'ouiln or Cnilil. i 
 
 Wliiiv a jnd^;nicnt has Icm rccovtrtd for ni 
 di III without fraud lieinj^ cliaigi d undur h. 131) | 
 of the Innolvcnt Act ot IS7.'"), the plaintill \» 
 liaiicd by hucIi recovery fmni liriii^iii^' another 
 action against the dchtor chaigiiiy the Iraud, 
 even altiiiiU]L;li the judgment w ah recovered liy 
 ileuailt, lor the iilainlill might have declared, 
 nvi I ling i-ncli fraud, and had the ijuesstion tried, ' 
 Liul.tl'oiiml V. ///•//, :W ('. 1'. '.Mil. I 
 
 'I'hc plaiiitillasued for goods sold and delivered 
 to ilel'enilant> who weie ini^olvent!^, and umlers. ^ 
 IMi of till' Jnsolvelit Act ol lh7ri, ehaiged the 
 di leiidantH with fraud in procuiing the goodo on 
 eieiiit, knowing thenihelvo, to he iinahlc to meet 
 thiir engaginiuits, and concealing the fact fii.ni 
 the jilaintill's, therohy heioniing their creditors 
 V itli inti'iil to defraud tlum. The defendants 
 wi re doiiiiciled in (tntario, and the ciintract was 
 made in Kiiglaiid : — Held, atliiuiiiig the jiidgnicnt , 
 of the Court of Common I'leas, reported in .SI ' 
 C. 1'. ll'J, that the act cliurgeil was not a crime, 
 nor the charge of fraud aeriminal proceeding, lint 
 nil rely a proceeding at the instance of a jirivate 
 pi i>iin to enforce payment of a debt ; and it niade , 
 no dill'erence therefore that the contract out of | 
 which the cause of action arose, was made in 
 Knglaml. I'nk ct al v. Sliiililf< il al., (> A. 11. 
 (;;)!). Atlirmed in [Supreme Court, see L'O C. L. 
 J. 65. 
 
 Per Rpragge, C. J. 0., and Morrison, J. A.— 
 Sec. l.Sti ot the insolvent Act of 187"), dealing 
 ■with matter of procedure incident to the law of 
 liankruptcy and insolvency, was within the juris- 
 dietion of the rarliament of Canada to enact. Jh. 
 
 I'er linrton,.). A. — Sec. 13fi, which gives certain 
 creditors an additional remedy in the Provincial 
 Courts for the recovery of their debts in full, is i 
 ultra vires of the rarlii'incnt of Canada ; buts. 8, 
 8ub-s. 7 of the Insolvent Act of lS(i4, to the same 
 eilect, is still in force, the I'ai-liamcnt of Canada 
 liaving no power to repeal it. Per Patterson, J. A. 
 It is immaterial whether s. l.Sfi is ultra vires or 
 not ; for if the Parliament of Canada had the 
 
 8, DUi-liiinji'. 
 
 Under sees. 0(J and .'i7 of the Insolvent Act of 
 1S7'), a judge has no ]iower tograntan insolvent 
 his discliar;;i', where he has failed to keep a cash 
 book and account books iiit.iblc for his trade, 
 even altlioiigh siicli uniissinii niay not be due to 
 any fraudulent intention. Id' (linnini'j, an lu-ml- 
 
 Drill, .") A, It. M'.i. 
 
 Ill 111, that the in.si Iveiits were not entitled ot 
 a dischaige uiidii sir. d,") of the Iiisnlvcnt .Act of 
 I87"i, lis the facts set out in the riport of the 
 ease, did not shew that their failure to jiay a 
 dividend oi lifty cents in the dollar was caiiscil 
 by ciiciinihlanees arising more than one month 
 after the mailing of the di claration of iiisiilvein'y, 
 for which they could not be justly Inld respon- 
 sible w itliin the nieaiiiiig of the third jiroviso to 
 thit section. (Jua re, as to the ell'ect of ne:;lcct- 
 ing to mail such declaration to each creditor, as 
 reijuireil by that section. /// /v ilalhniUh and 
 C/iris/ii, 5 A. R. XiS. 
 
 \Vherc an iii.-,ol\ eiiL omits to keei> books of 
 .account suitable for his tr.ide, he is not entitled 
 to an immediate di.siliarge under the iiLSolvcnt 
 Act of ISTi"), though such lailuro may not he 
 owing to any iinpioper motive. In thi.s case, 
 however, as the insolvent had kept certain books, 
 which allliouj;li imperfect were honestly meant 
 as a business record, his dischaige was only sus- 
 pended lor three months. lie liitlliraiil, an 
 liwuln III, o A. iv. (iliS. 
 
 The inaohent swore to an atlidavit veriiying 
 the statement of li.diilities and assets, but iliad- 
 verti iitly omitted the stiitinient of the causes to 
 which he attributed his insolvency, which, how- 
 ever, he nii.de vi rb.dly at the tirst mectiii;.' "f 
 creditors, while the contestant was pn.'- 
 'J'his defect was not jointid out for uio' 
 a year, and after the discharge had been 
 for, and the insolvent then swoie to .r 
 
 atlid.'ivit supjilying the omission : — Held, i n- 
 ing the decision of the Judge of the County 
 Court, that the omission to furnish the statement 
 within seven days troni the assignment under s. 
 17, was immaterial, as it e.xjiressly gave the ri^ht 
 to correct or supjilement the statement which 
 had been done : — Jleld, also, that under s. .')7, 
 the omi.ssiiin complained of would not disentitle 
 the insolvent to his discharge, as it was not wil- 
 ful : — Held, also, th.at under the circum.stances 
 more fully set out in the rejiort of the ease, the 
 opposing creditor was estopped from objecting 
 to the omission. J{e Mar/in and Enijlkh, Insol- 
 mils, i) A. K. ()47. 
 
 To an action by a commercial traveller for 
 wages, defendants pleaded a deed of composi- 
 tion and discharge in insolvency. The plaintiff 
 replied that the claim was l)rivileged :— Held, 
 reversing the judgment of the Q. li. 45 Q. B. 
 188, that privileged claims are not within the 
 class of debts mentioned in sec. (13 of the Ins'' 
 vent Act of 1S75, to which a ilisch.irce does not 
 apply without thecon.sent of the creditor. Fryer 
 V. S/ikldn I't ah, 6 A. K. 57. 
 
65 
 
 HANKRUITCV AND INSOLVENCY. 
 
 GG 
 
 llulil, atHniiJng tlio juil^inviit of I'niiu-roii, J., 
 that iinilur thu liiHiilvont Act ol' IHM, h. !>, huI> h. 
 r>, a (liKcliarjfo in iiiHolvenoy 'Vtnild form no 
 auswur to pruccudiiigH upon n juil>(nient against 
 the (lefendnnt for 8«!ilui'tion. limiiiii'iir v, 
 TItiiixhn; <J r. U. 20(5 ; I (>. R., Q. H. 1). .-IIM. 
 
 In liSli(> judL'inunt waH roiM)vcTcil aj^iiiimt tlii' | 
 ileffiiiiant in tliiH notion for briiach of proniisuof | 
 Miarriagu, nnil in nnotlier for Huiluction. The | 
 (lufunchuit then inatlu an aBsignniunt under the { 
 InBolvent Act, I8(i4, having no ntiHcts, and his \ 
 only creditors heinj^ thu i)laintitrH in tiiu two 1 
 actioiiH, No uruditorH appearuil, and after twelve I 
 niontliH he ])etiti(>ncd for Iiih di.seharge. The 
 application waa duly advertiHcd, and no opponi- 
 tion lieing nindu, was granted. He sidiseipiently 
 acipiired some i)roperty, and execution was then 
 isHUed in this action. The master in clnnilters 
 refused to Set aside the execution on motion 
 made by the defendant, and iiis order was re- 
 versed hy Osier, iJ. ; — Held, allirniingthe decision 
 of Osier, J., tiiat tlio want of assets at the time 
 of making the assignment could not l)eset up on 
 the applicition as a ground for avoiding the dis- 
 charge, liiit was a matter for the consideration of 
 the insolvent court ui)on tlie apiilication therefor, 
 and that unless attacked for traud it was a com- 
 plete answcrto the plaintil!"seluiin. Held, also, 
 that the plaintiU's claim was one wliii h was 
 liaried hy the discharge. Thomas r. H.dl, (! I', 
 i;. IT'-', and Parke »•. Day, 2t ('. R (il!», com- 
 mented upon. I'orrtKtvr v. 'J'/iritn/nr, !) I". 1!. 
 .SSS; 2 O. 11., (,». H. I), .m 
 
 A linal order of discharge ohtainetl liy jin in- 
 solvent ii|ioii a deeil of composition and discharge 
 conliinicii, will be vacated liy this court, on hill 
 tiled hy a creditor, party to the insolvency pro- 
 ceedings, where Buuh discharge has been obtained 
 by a fraudulent concealment of assets. An iii- 
 bulveiit lirni, on September Kith, 1878, made an 
 assignment under tlio Insolvent Acts. On ( )eto- 
 b'r2ii(l, I87S, a deed of composition and dis- 
 (. unilcr the said Acts, was executed, 
 
 wlieiel.> the said lirni covenanted to jiay a cer- 
 tain dividend, and on February 28lh, KS7!I, tlie 
 judge i fi8(dveiicy made an order for its contir- 
 niatii. sworn statement of the assets and lia 
 iiilitics III the lirm having been first duly tiled by 
 tlio members thereof. Long afterwards one df 
 the creditors, who hadeonsented, on payment of 
 a certain dividend, to assign his claim to S. as 
 trustee for the iusolvi Mt lirni, and for the pur- 
 pose of executing the id deed, though he him- 
 self refused to e.\.ecuLc it, discovered that V., 
 one of the members of the lirm hatl fraudulently 
 concealed some of his assets, and he tiled a bill 
 in this court to have the said deed of composi- 
 tion, and the order contirming the same, declared 
 void as against him llehl, that the deed and 
 orderof confirmatioi, inst be vacateil as regarded 
 C, and the insolvency proceedings re-opened, so 
 that there might be a duo administration of the 
 assets, thus withheld, and the asHignment to S. 
 must be prevented from being set up as a bar 
 to such relief. McUee v. CampMl ,t at., 2 O 1{ 
 thy. ]>. 130; reversing S. C. 28 Chy. ;{08. 
 
 Held, also.lProudfoot, J., dubitante),iiiasmncli 
 as the assets fraudulently concealed were C's 
 private property and not the property of the 
 partnership, the discharge sliould only be vacated 
 as to the pnvate estate of C. Per Proudfoot, 
 J., the assignment to S. was invalid, being made 
 
 without colli iileration, or for a consideration, 
 which was no satisfaction, being the payment of 
 a less sum for a greater ; l>ut even if it must bo 
 taken to have lieeii for value, it was sullicient 
 for the plaintitV to shew that it was eiiteied into 
 under a mistake caused by the insolvent liiiii, us 
 to the trueaiuouiit of the assets.wiietlier the tirm 
 acted innocently or otherwise. .S'. ('. 2 (». i{., 
 
 t;iiy. I). i:io. 
 
 It also ap)ieared that among ('. 's iissets was a 
 certain sum received b)' him, or to which he had 
 a claim from a certain railway com|iany as com- 
 peiisatiou for services remleied as temporary 
 acting president :- Held, that (,'. was bound to 
 return as an asset the portion of the compensa- 
 tion [payable for services remlered up to the date 
 of the assignment in insolvency, but not the 
 remainder. /''. 
 
 The insolvent, nine months beforu his insol- 
 vency, stated to the contestant that he hail a 
 surplus of 8-10,00(). When he failed it appeared 
 that there was a deficiency of about that amount, 
 the ditl'erenco not being satisfactorily, if at nil, 
 accounted for. He did not produce all his books, 
 but it was proved that they were kept in such a 
 manner that they would not shew the true statu 
 of his nllairs. 'i'he cash-book had never been 
 balanced, and no balance sheet was ever mndu 
 out ; bills were discounted which did not appear 
 in any of the books, and goods were tivinslerred 
 from his wholesale to his retail place of business 
 without entry in the books that were kept : — 
 I Held, reversing the order of the judge below 
 granting a discharge to the insolvent, I, that 
 though an insolvent ma\' be guilty of tlieofi'encu 
 of not fidly, rleai ly, and truly stating the causes 
 of his insolvency, that is no ground for refusing 
 the discharge, even alter a conviction for the 
 ottence ; 2, that the omission to keep any books 
 prevents the judge from granting a discharge, 
 : whether the intent be fraudulent or not ; but, 3, 
 when they liave been kept, it is not essential, on 
 ' the one hand, that tliey sliould be kept in the 
 most approved form, nor are they sufficient, on 
 tho other, hoivever carefully kept in some re- 
 : speets, if they fail to exhibit the insolvent's exact 
 ' position ; 4, that under the facts in this case the 
 I insolvent was not entitled to his discharge. Li- 
 , iierty to the insolvent to renew tho application 
 was given, if he should be so advised on his pro- 
 ducing the remainder of his books. In re //ill, 
 7 A. R. 094. 
 
 .Semble, that if an insolvent obtains tho con- 
 sent of thu reiiuired number of creditors or the 
 execution of a tleed of composition and discharge 
 he may at once make tiie application without 
 waiting for the expiration of a year ; he is not 
 precluded however, from applying after the expi- 
 ration of a year, under the ti-tth section of the 
 Insolvent Act (lS7o). /b. 
 
 In order to absolutely disentitle an insolvent 
 to his discharge on the ground of failure to keep 
 proper books of account, where the case is not 
 one of a cominercial business, the party opposing 
 the discharge must shew that there were no 
 books ; or, if there were, in what respect they 
 were defective. Jte Husxell, 7 A. 11. 777. 
 
 It is no (d)jection to an application by an in- 
 scdvent for a discharge under ss. 64 and fi5 of 
 the Act, that a jirevious application under s. ati 
 to coiitirm a deeil of composition and discharge 
 
 
 15 
 
 
 5; 
 
67 
 
 BANKS. 
 
 68 
 
 liiiil lict'ii nfuHcil. wlicri' it appcarod tli.nt the 
 giniiiiil 111' ri:u-;i| was that tliu clicil was not exo- 
 ciitc'd liy a Mitli<'iciit tmiiilior of crcilitors wlio 
 had pnive 1 claiiiis. //;. 
 
 (,>iiM Ti', wlu'thiT aipassif,'n(!e woiihl l)e jiistilicd 
 in ric'onvcyin;.' the estate to the insolvent uiich!!' 
 the diiectidiis eont lined in a lU-ed so insutli- 
 ciently exuciiteii. //(. 
 
 A ]iost nM|itial settlenu'nt iqion liis wife made 
 hy .'ui insolvent at a time wlien Ik^ was not aware 
 ot liis in diility to meet liis liahilities, and wliik' 
 lie liad cnntivuts on hand from which ho 
 niifjlit reasunalily have expected to niaiie a jirofit, 
 tiioui.'li tliev afterwards proved nilsiieccssfid : - 
 Hehl, no ground for i-efnsinjj tlie insolvent his 
 dischar^'e. lii. 
 
 Upon liis ap|p liiitineiit tlic assignee took 
 an inventory of the propirvy, hut owing to 
 tiie execution of tlu' «li'e' ot comiiosition and 
 diseliarge, afterwards dei'Iarcd inoper.itive, did 
 not remov,; it : -Held, not a retention or eon- 
 eoilnient hy tlij ins ilveiit. so as to disentitle 
 him to liis dis(li:ii,'c ; in such a case the reten- 
 tion and concealment necessa y ^o disentitle an 
 insolvent to his discharge m ist be wilful anil 
 
 fraiidideiit. Ih. 
 
 I 
 See llatif v. SumwJ, 29 Chy, 105, p. 55. | 
 
 I 
 
 most an .icknowled^jinent of the l)alance on the 
 assnmptioii th.it the cheques had hcen paid to 
 the ])roper parties ; — Hehl, also, that i*' c.uhl not 
 hesaid tiiat the cheiities were niai'te payable to 
 tictitions jiayees, and were therefore ])ayable U\ 
 bearer. Aiiririiltiinil Sari'>(;n mil Loan Anaocia- 
 lh,ii V. Fidlral Bank, (i A. R. 192. 
 
 THANKS. 
 
 I. ("iii:i,iii:s ANi> I'ass Books, fi"/. 
 
 II. Hll.l.S AMI Noii'.s, (is. 
 III. Di-fosris, (;•). 
 IN'. riKcnAsi-: (IK Salk of Goods jtv 09. 
 
 V. Mist'KLLANKols Casks. 70. 
 
 II. Bills ani> Notks. 
 
 The iilaintiflF, a custoinnr of the defendants' 
 branch bank at Chatham, handed to the manager 
 there for eolleetion a note made by (J. f!. to and 
 endorsed by T. C, both .if wlioni lived at De- 
 troit, where the note was made and payable. 
 Tile Chatham branch stamjied above the en- 
 dorsement of T. C. a spei iai endorsement to 
 themselves, but the Chatham man.iger without 
 endorsing the noce sent it to their Windsor 
 branch for eolleetion— Windsor being their near- 
 est branch for Djtroit — without any instructions 
 as to the place of residencj of the tiudorser, who, 
 however, was well known in Detroit. Tiie 
 manager of tlie Wiiidsor branch endorsed it to 
 the cishier of the First National IJ:iuk, their 
 agent there, and sent it to him for c>dlection. 
 Payment having been refmed upon ])resentation 
 they handed it to a notary, who duly protested 
 it, l)Ut eiiidoseil the notice for T. tl., the endor- 
 ser, in the envelope eontaniing the notice to the 
 Windsor branch, addressed to the manager of 
 that branch. A clerk in the Windsor branch 
 sent the notice I'or T. C. to the Cliritham branch, 
 which was duly p()ste<l at Windsor, but was 
 never received from the Chatham post office, and 
 '*' '' the endorser, never received any notice. 
 
 T. C 
 
 I. CiiKi^rKs AND Passbooks. 
 
 The plaintitl's v.aluator, one H., filled in the 
 blanks in an ap|)lication for a loan on statements 
 of one S. who forged tiie names of. I. '!'. H, and 
 1. B. as applicants, and although H. li.id never 
 seen tlieproperty or tiieajipl. .'ants, he certilicd a 
 v.'iluation to the plaintiil's, who accepted the 
 loan, .md signed his nunc as witness to the sig- 
 natures of the apjilic ints. (.jheipies in )iayment 
 thereof to the (U'diT of the supposed borrowers 
 were obt.'iined by S,, who forged the liamesof the 
 p;iyees,'enilorsed his own name, and received pay- 
 ment of the du ipies, which were drawn upon the 
 defendants, througli other banks, who presented 
 them to the defendants and received p.aynient 
 in good faith. Th" frand was not discovered 
 for some time, during which the eheipics were 
 returned to the plaintitls at the end of the month 
 as paid, and the usual acknowledgment of the 
 correctness of the accmint was diily signed : — 
 Held, atlirming tl'^ judgment of the Queen's 
 Bench, 45 Q. H. 214, that the plaintiffs were 
 not estopped from recovering the annuint paid 
 on tlie forged endorsements from the defendants 
 by their agent's negligence, as it did not occur in 
 the transaction itself, and was not the proximate 
 ciUBC of their loss :— H« Id, also, that the ac- 
 knowledgment of the plaintiff's of the correctness 
 of the account at the end of the month, was at 
 
 Tile Chatham manager received the protest by 
 due course of mail, and could hive seen from it in 
 time to rectif" *he mistake that the notice for 
 T. C. had bei • .ddressed to the Windsor agent. 
 The endorser having been sued in Detroit escaped 
 on the ground of want of notice, and, the maker 
 being worthless, the payee sued defendants for 
 U' gleet with regard to such notice. It aj>pcared 
 tiiat in Detroit it was the custom f(>r the notary 
 to send notices for the endorsers to the b.ank 
 from which the note was receivod. It was con- 
 tended for defendants that the branches were 
 for this purpose distinct ; that the notice was 
 properly sent to Winds)r, and thence to the 
 Chatham branch, whence the note came: and 
 that but lor the neglect of the Post Olliee the 
 notice would have l)een duly received at (Jhat- 
 hain and .sent tr> the endorser. But, Held, that 
 the defendants were liable : that on sending the 
 note to their Windsor agent they jhimld have 
 given jiropor information as to the residenco of 
 the endorser for the guidance of the notary : and 
 that the Chath.am branch having notice from th" 
 protest, which they shoidd have examined, tf 
 the notice for the endorser had been sent to 
 Windsor, they should at once have hatl a nroper 
 notice served in Detroit, which they coulil have 
 done in time. Stcinhoffy. Tfu- Merchants' Bank; 
 40 Q. B. 25. 
 
 ICndorsenient of note by bank manage— Suffi- 
 ciency of. See Small v. Biddvl et at. 31 C. P. 
 37.1. ■ 
 
 See Blark v. Sfrieklnml, 3 O. R., Chy. P 
 217, p. 80 ; Nelleti v. The Bank of Montreal, U 
 Chy. 449 ; 7 A. K. 743, p. 61, 
 
69 
 
 B ARll I8TER-AT-L A W. 
 
 70 
 
 III. DkI'DSIT.S. 
 
 Uni! McK. ,wlu) was tlu.' a8si;,'iifo of iiii iiisol- 
 vi'iit I'strite, ki'pt tlif I'Htatf ai'i'nuiit as wi'll as 
 his jirivate accmiiit, at tlit; ilffi'iidaiits' liank. 
 < 'I'l'tii.' notes of ;tic estate were (le]i(>siteil liy liiiii 
 witli ilefeiiilaii*'s for coUcHitioii, ami tlie proceeds 
 plai'. '1 to the , -eilit of the est;ite, wliioli NIcK., as 
 assi ,'iiee drew mit l>y eheijue, ami re-deposited 
 with (h'tendaiits to liis private aeeouut, and then 
 used for liis own ])urposes. It did not appear 
 tiiMt the I)ank derived any lienelit from tiie trans- 
 fer, or tliat Mel'!. w.\s indel)ted to tlioni ; — 
 Held, that defendants were not liable to repay 
 the amount to the estate. Cluirh v. ('onsuliilntcd 
 IhinhnfC'iiinilii, :?l <•. I'. I(>!). 
 
 ( )ii "J'Jnd .\ut;ust, I ST'.', the defendants' account 
 at the ISank of .Moiitre.d, where the (■orjioration 
 aeeount was kept, was ovenlrawn .s|, 1,")7.(54. A 
 resolution of the conneil was tliereu]ion )) ,S9ed, 
 authori/in},' the mayor to horrow from some h.ink- 
 im,' institution a sum not exceeding 'riJOOO, to 
 meil: the current lialiilities \intil the taxes were 
 availalile, and authori/.ini; him .-ind tht^ town clerk 
 to si!,'n the neeess.iry ilocunn^nts therefor, ami 
 to atlix the corporation seal. < >n 'Jnd .September 
 a jiromissory note, in acconlance with this rco- 
 lution, was made, and was disccmnted at the 
 liaidv of Montreal, and the proceeds ]ilaced to the 
 defendants' creilit. < hi tlie r)th Septemher, a 
 similar note w;is niadi; .'iMd discounteil at the 
 pliiutill's' b.-iidx, where the (h/fendints had keiit 
 an account, hut which was viitiidly closed, 
 thoii.'h there w.is a sm.dl h dance still ri-miinini.; 
 to tiieir creilit. The last note \v,is in fact frauil- 
 uleiifly procured to l)e made and discounted hy 
 one 'r. , who was tin' ilofendants' clerk an<l treas- 
 urer, and who was in def.iult, to cover up his de- 
 f;di' itions, hut of tliis the ]il:untilVs l<new nothin;,'. 
 T.. as such trc isui'cr, then, chcipied out of pl.iin- 
 tiffs' hank 81,(>"il) of this amount, which /le de- 
 positeilto the defendants' credit at tlie I tank of 
 Nlontreal, and then paid it out on corporation 
 ch(i|iies for autliori/.ed corporat on ]mri)o8es :-- 
 III id, ill an action for money had .ind receiviid 
 that the iilaintifls' were entitled to recover the 
 >'l,li.'i(i, for that 'I'., though aetiiii; fraudulently, 
 li.id .ictiMl in a matter witiiin tlie scope of his au- 
 thority, and the defend mts had received the 
 heiiMi't of the fraud. .l/o/'>'.//i' llnily. 77/«' Toe 
 jvirnli'iii itf tlif li»i'n III' l}rii''l:i-illi\ 31 (". \\ 17 1 
 
 Till' iilaintilTs were sureties to a I) ink for a 
 delit due liy a comp.iny, and for which the hank 
 held other notes as collatcnds. Under a special 
 agi'eiineiit iiiaile in a jirior suit, tin; receiver in 
 such suit de])osited the ]ii'c:!eeds of such colli- 
 toi'als in such hank siiliject to the order of the 
 court. The jilaintitl's claimed to ajiply the pro- 
 ceeds 8(, ileposited to reduce the cleht of the 
 coni]iiny, hut tv.'liaiik n'filsed .so to apjily them 
 without an ,rder of court : — Held. (1) that the 
 hank was constituted a stakeholder uf nucli 
 moneys, and could not so aii|)ly them without 
 till! sanction of the court : ('!) that the bjiiik 
 was not chargeable with interest on the n:oneys 
 so deposited, even thoiij^h it might have ni.'ide a 
 protit oil sucli moneys. Hiilloii v. t'ldinil ISimk, 
 11 I'. U. 5G8.— Hodgiiis, M,tM,r. 
 
 IV. riKClIASK IIK S.VLK {)K GoOlW BY. 
 
 By the Uiiiikiiig Act, M Vict. c. .5, D., biiuks 
 are prohibited froii. buying or selling goods or 
 
 i niercliandi/e : — Held, theref'tre, that an action 
 I would not lie against an incorporated bank for 
 j bre.ieh of w.irranty on the sale of a horse power 
 I luachine. Il'iilfnril v. Tlir Mi irhanix liaiik, 3 
 , O. U., 0. I'. I)..j'2!l. 
 
 V. MiscEi,i,ANK(>rs Oasf.s. 
 
 Liability of bank on t,'uar.aiitee of local agent. 
 •See Di,l„fl ,'t al. V. OnUtrin lluik <■/ ul., 3 (). 11. 
 (Miy. I) "J!)!). Since reversed in Appeal, aee 20 
 0. L. J. Ut. 
 
 Claim of b.mk under waichoiiso receipt. See 
 f.inith V. The ^fercllllll/.■<' liitnk; 28 Chy. G29, pp. 
 82, 83. 
 
 BARRISTKU-AT-LAW. 
 
 C'ofSSKi. Fkk — SVc (JOSTS. 
 
 By Wl Viet., c. 20, X. S. (1874), the Lieuten- 
 ant-* iovernor of the province of Nova Scotia w.as 
 authiu'ized to .appoint |n'ovincialoHicers under the 
 name ot Her Majesty's counsel learned in the law 
 for the province. liy 37 N'ict., c. 21, X. S., 
 (1874), the Lieutciiant-dovernor was authorized 
 to yr.int to any im'inlier of the bar a patent of 
 prei'L'dein'e in tlie courts of the pro\-ini!eof Xova 
 .Scotia. It., the res[ii(ndent. w.is ap|miiited by 
 the (Jovii-nor (Jein'r.il on tlie 27tli bccenilier, 
 IS72, under the great seal of Canada, a (^ueon's 
 Counsel, and by tiie unifor..i )ir.ictice of the court 
 he had |ire(!eileiii'e over all iiieiiil)ers of the bar 
 not holding ])atents ]U'ior to his own. By letters 
 patent, dated 2(!tli M.iy, 187(), under the great 
 seal of the ]n'ovinoe, and signed by the Fjieuten- 
 aiit-( ioveiiior and pi'(«\ii:'ial secret try, several 
 inenibers ('f the bar were appointed Queen's 
 counsel lor Nova Scotia, ami precedence was 
 gr.intcd to them as well as to otn^..' (Queen's 
 counsel apiiointecl by the ( Jovernor-(ienoral after 
 the 1st of. Inly, IS(i7. A list of <,)ueen's counaol 
 to whom precedence had been thus given by the 
 Lientenaiit-( Joviu'iior, w.a.s published in the Koyal 
 (•azette of the 27th .May, 187(), and the name of 
 K., the reapondent, w.is included in the list, but 
 it gave precedence and jtreaudience before him to 
 several persons, including appi'llants, who did 
 not enjoy it before. ITpoii allidavits disclosing 
 tl .'ibove and other facts, and on producing the 
 original cominission ami letters ])atent, K., on 
 the .'hd .lanuary, IS77, obtained a rule nisi to 
 grant nini rank and precedence over all Queen's 
 counsel appointed in ami fortlie province of Nova 
 Scotia since tlie2()th December, 1872, and to set 
 aside, so far as they atleeted It's precedence, the 
 letters patent, dated the 2(ith May, I87(i. This 
 rule W.IS made absolute by the Siiiu'eme Court of 
 Xov.i Scotia, on the 2t>tli March, 1877, and the 
 decision of that cmirt w.'is in substance as fol- 
 lows : —I. That the letters patent of precedence, 
 issued by the Lieiitenant-Coveriior of Nova 
 .Scotia, were not issued under the great seal of 
 the province of Xova Scotia ; 2. That 37 Viet., 
 caps. 20, 21, of the .Acts of Xova .Scotia, were not 
 ultra vires ; 3. That s. 2, cap. 21, 37 Vict., was 
 not retrospective in its etfeet, and that the letters 
 p.itent of the 2(!tli May, I87<i, issued under that 
 Act could not att'ect the precedence of the respon- 
 dent. On the argiiinent in appeal liefore th« 
 iSuprenie Court of Cuua<la the ipiestion of the 
 
 1^ 
 
71 
 
 BILLS OF EXCHANGE AND PROMISSORY NOTES. 
 
 validity of tho great seal of the piovinceof Nova 
 Kcotia was declared to liavo been settled liy legis- 
 lation, 40 Viet., c. 3, D., and 40 Viet., o. 2, N. 
 iS. A preliminary objection was raised to the 
 jurisdiction of the court to liear tlie apiieal. 
 Held: 1. That the judgment of the court lielow 
 was one from which an appeal would lie to the 
 Supreme Court of Canada; (Fournier, J., ilis- 
 senting. ) 2. I'ur Strong, Fournier and Tasch- 
 ereau, JJ. :— That .37 \ ict., c. 21, N. S., Ins not 
 a retrospective etlect, and tliat tlie letters patent 
 issued under the autliority of that Act could not 
 afl'ect the precidencu of the Queen's counsel ap- 
 pointed by the Crown. 3. l'erHenry,Ta8chereau. 
 uud Gwyuue, JJ. :— That the Hritisli North 
 America Act lias not invested the legislatures of 
 the provinces with any control over the ajipoint- 
 inent of Queen's counsel, and as Her Majesty 
 forma no part of tlie I'rovincial Legislatures as 
 she does of the Dominion rarliament, no Act of 
 auy such Local Legislature can in any manner 
 impair or afi'ect her prerogative right to appoint 
 (jueen's counsel in Canada directly or through 
 Her Representative, the Governor-General or 
 vest such prerogative right in the Lieutenant 
 Governors of the provinces ; and that 37 Vict., 
 caps. 20 and 21, N. S., are ultra vires and voi<i. 
 4. Per Strong and Fournier, JJ. : — Thai, as 
 this court ought never, except in cases ivhcn 
 nuch a<ljudicatii<n is indispensable to the decision 
 of a cause, to pronounce upon the constitutional 
 power of a legislature to pass a statute, there was 
 no necessity in this case for them to express an 
 opinion upon the validity of the Acts in question. 
 Uuoir V. Jiitrlii,; 3 S. C. U. 575. 
 
 Junior counsel are not .at lilierty to take jio- 
 ><itions i" argument which conllict with the 
 positions taken by their leaders. Tin- Jiihr- 
 iiiitional liihlijr Co. v. 'J'/ic. ('(tmiild Stinlliirii li. 
 jr. Co., ami Tin Ctiiuidd .S'oH//(t/v/ A'. IF. Co. v. 
 The liUtrmitiuuitl liruhjc Co. 7 A. \\. 22()., but 
 «ee 20 C. L J. S.'iS. 
 
 As to right of dill'erent counsel representing 
 defendants witii common ilefence to cross-exam- 
 ine a witness separately. See Walh'f v. McMil- 
 hii, 6 S. C. K. 24, p. {»7. 
 
 Practising barrister dealing largely in laml 
 transactions, but not shewn to be depcmlent 
 tliereon for his living :^Held not a trader under 
 the Insolvent Act. Jo-iciih v. Iliijj'iift; 2i) I'liy. 
 421. 
 
 RASTAIM). 
 
 A mother some nmnths before her death, con- 
 signed her illcgitiutate child, seven years of age, 
 whose reputed father was dead, to the custody 
 of a protestant institution, she lieing ,v Konian 
 Catholic. Immediately before iier death she 
 signed a paper expressing her desire to have her 
 child delivered up for nurture to a Human Catho- 
 lic iustitutiiin :— Held, tliat the court had not 
 power to compel the delivery up of the chud, 
 and that the express wish of the mother was no 
 grouuil for interference. In re Siitith, ttii /ii/'uul, 
 8 P. It 23.-Hagarty. 
 
 The plaintiti', as administratrix, sued the de- 
 fendants, under 44 \'ict. c. 22, s. 7, U., for tlie 
 death of her illegitimate son, a iirakesnian on tlio 
 defendants' railway, wlio was killed )iy being 
 carriud against a Lridgc not of the height rei^uired 
 
 by that Act, while on one of their trains passiiij; 
 underneath it. The bridge belonged to another 
 railway company, which had the right to cru.^t- 
 the defendants' line in thtit way, and though the 
 time allowed by the statute for raising the bridge 
 had expired, they had not done so. The juiy 
 found that the defendants had been guilty of 
 negligence in not raising, or procuring to be 
 raised, the bridge :— Held, that as the Act was 
 intended to give no greater right to recover than 
 Lord Campbell's Act, therefore the plaintiff's 
 relationship to the deceased prevented her re- 
 covery. Gih.^on V. Midlaml Ji. IF. Co., 2 0. II.. 
 Q. B. D. (J58. 
 
 BATTERY. 
 
 See Assault. 
 
 BAWDY-HOUSE. 
 
 Held, that a conviction under .32-33 Vict. c. 32. 
 s. 2,sub-s. (i.Dom., for being an unlawful (insteail 
 of an habitual) freipienter of a house of ill-fame, 
 and which adjudged the payment of costs which 
 is unauthorized l)y the statute, must be ijuashed. 
 That section makes the being such habitual frt 
 quenter a sulistantial oft'ence, punishable as in s. 
 17, and does not merely create a procedure fot 
 trial and punishment. A'<i/iiiu v. Clark, 2 O. I!.. 
 Q. B. D. o23. 
 
 See also Rirjina v. Flint, 4 O. 1\. 214. 
 
 BILLIARD TABLES. 
 
 Powers of Provincial Legislature as to restrict- 
 ing the hours within which billiard rooms ii: 
 taverns may be kept open. See Jliyina v. llodiji . 
 40 Q. B. 141 ; 7 A. R. 24U ; 9 App. Cas. 117. 
 
 BILLS OF EXCHAN(;E AND PROMISSOUY 
 NOTES. 
 
 I. Partiks. 
 
 1. AiJiKtH—Sir I'UINCIl'.VL A.VU AoKNT. 
 
 2. Morriid 
 
 WlKE. 
 
 Women — .SVe Hu.mband ANr 
 
 3. Purtncrx- -Sec Pautnership. 
 II. Form, 7.3. 
 
 III. Stamps, 73. 
 
 IV. Alteration, 74. 
 
 V. PUESENTMI.NT FOR PAYMENT, 
 
 ANU Notice ok Disuonoi-r, 
 VI. Acceptor and Makeh, 77. 
 VII. Drawer and Esuorsee, 77. 
 VIII. AcrioNs O.N. 
 
 1. ^1^ iv'uit Time, 78. 
 
 Pi:oTK-r- 
 75. 
 
73 
 
 BILLS OF EXCHANGE AND PROMISSORY NOTES. 
 
 74 
 
 2. Pleas, 78. 
 
 3. JiirisdiHioii of Dhiaion CouHa — See 
 
 Div! 'lox Courts. 
 
 IX. Defences to Actions. 
 
 1. Plaintiff not the holder, 70. 
 
 2. Coimileration as a firouml of Defence. 
 (a) Accommodnlin n; xonnt of Con- 
 
 Meraiion, . 
 (1)) Fraud and hi U Cunnid'^ration, 
 
 81. 
 (c) Partial failure of Conmleration, 
 
 81. 
 
 3. Payment, 82. 
 
 4. Other Difencex, 82. 
 
 X. Duties of Hanks in Connf.<:tion witu 
 Bills oh Notes— .SVe Banks. 
 
 XI. Tremium Notes— .9cc Insukance. 
 
 II. Form. 
 
 Htlil, that the note in this case was uot a ne- 
 gotialile iiroiuissory note, not l>eiiig made pay- 
 iible .-ibsohitely anil at all events, but oulj' ivs 
 eoUaterul security f«r plaintiff's guarantee. 
 Hulhi rlaiid v. Patterson, 4 O. II., (J. P. L). 5(!5. 
 
 See Svaixland v. Daridmin et al., 3 O. R., 
 320, p. 75. 
 
 III. Stamps. 
 
 Tlie ]ilaintiflfs refused to i)urL'ha3e a note from 
 the liolder one C, l)ecause it was inauthcicntly 
 stamped, whereupon C athxed double stainiis 
 and transferred it to the phtintitrs, who did not 
 notice that the stamps had not been properly 
 cancelled until sonic time afterwards, when they 
 at once double stamped it and cancelled ttie 
 stiinps under 42 Vict. e. 17 s. 13 I)om. :— Held, 
 reversiu); the decision of the < "ounty Court, that 
 the plaintiffs, having taken the note in the full 
 belief that it had been properly double st.imjied by 
 ('., wiio was .at the time the holder, were entitled 
 to double stamp it under the above section. n)>on 
 discovering the defect. Trout et nl. v. Moulton, 
 5 A. R. 654. 
 
 In an action on a |)romissory note, which at its 
 making was not 'ttamped, but had been double 
 stamped before action, and after the reju^il of the 
 stump Act by the 45 \'ict. c. 1 1)., the defendant 
 denied the miking of the note. At the trial 
 Wilson, C. J., refused leave to plead insutficient 
 stam]iing on account of the rc])e;il of the .Stamp 
 Act, but the plaintiff was allowed to amend by 
 adding allegations siicwing the consideraticm for 
 the note, and gave juilgment for the plaintiflf :— 
 Helil, th.it the juilgment w.is right. I'er Hagarty, 
 C. .1. — The learned .Fu<lge was not Imund to 
 allow a plea of insufficient stamping to be added 
 by May of amendment, under the circumstances. 
 I'er Armr)ur and I'ameron, iJ.I. — The amend- 
 ment should have been allowed. Per Armour, 
 <!.— The note even if unstamped or insufficiently 
 stamped was admisnilile in evidence of the clebt 
 to the plaintiff, the Stamp Act not iirohibiting 
 such a use of it, and McKay r. Orinley, .SO Q. H. 
 •A, contra, should not be foiloweil. Per Hagarty, 
 C, J., and Cameron, J. — It is necessary, at all 
 
 events since the Judicature Act, to plead •peci- 
 ally want of staniiis. Per Cameron, J. — The 
 unstamped note was in its inception valid, but 
 became invalid by neglect to stamp it. The re- 
 peal of the Stamp Act leaves the law where it 
 was before those Acts were passt^l, ami the note 
 being originally a valid transaction is valid. 
 Caui/hill V. Clarke, 3 (). R., Q. B. D. 2(59. 
 
 Defendant h.aving pleaded several distinct de- 
 fences to an action on a ])romissory note, the 
 Master in Chambers refused to allow him to add 
 a plea that the note was not duly stamped, hold- 
 ing that under R. S. O. c. 50, sec. 270, such 
 amendment was not compulsory, but a matter 
 of discretion. On a])[)eal. Osier, J., affirmed bis 
 decisiim. .S'. C, 9 P. R. 471. — i)alton, Ma«Ur. 
 
 The note ujion which this action w.as brought 
 had not been projicrly stamped, and it was urgetl 
 that it could not be a payment or satisfaction of 
 one (»f which it was intended to be a renewal : — 
 Held, that the plaintiff being aware of the objec- 
 tion to the unstamped note, and receiving it in 
 lieu of f'e paper which he held, could uot nr^o 
 this as an objection, he having declared up<m it 
 as a ))romissory note, liaillie v. Dickion, 7 A. 
 W. 759. 
 
 Held, that a promissory note before being ne- 
 gotiated could be stamjted by the maker on the 
 day of the making thereof, though after it had 
 been signed an<l iiulorsed by the payee. Bank 
 ofottaim V. MeLnnijMin, 8 A. It 543. 
 
 Where the defendant, being sued on a promis- 
 sory note,alleged that the said note was not duly 
 stamped before the repeal of the Stamp Act, nor 
 until after action br.iught, althougl' he commn- 
 nicated the fact of that omission to tiic plaintiffs 
 before he was sued, and tlie plaintiffs denied that 
 the defendant had so notilie() them, and alleged 
 tirt they double stamped the Jiote as soon as 
 tl / had knowledge of the omission to stamp, 
 Willi;!! was not till after action brought, and after 
 the repeal of the .Stamp Act ; ■■md the evidence 
 shewed that when the note came to the plaintiffs' 
 hands it appe ired to b.s proi>erly st.imped : — 
 Held, that the defendant couhl not be allowed, 
 upon his own unsnp](orted testiuiony, in such a 
 case to escape liability. The onus w.as on him 
 to establish that the stam]) was not duly ."iffixed, 
 and that the omission to duly star\ip was so in- 
 telligibly communicated to the pl.-dntiffs that it 
 could be said they ac(|uired the knowledge of 
 the defect at the time alleged by him. Hank of 
 Ottawa V. MrMorrow, 4 O. R., Cliy. D. 345. 
 
 To cure a di'fuci; in w^jiniping by double stamp- 
 ing forthwith was, untler liie Stamp Act, 42 Vict, 
 c, 17,8. 13, an inherent right existing during the 
 currency of the instrument, and accompanying 
 its possession ; and by virtue of the Interpreta- 
 tion Act, 31 Vict. c. 1, ss. 3, 7, subs. 3(5, the 
 same riglit still exists notwithstanding the re- 
 peal of the Stamp Act. Ih. 
 
 D. gav 
 
 C. or beji 
 
 IV. Alteration. 
 
 :ave C. two promissory notes, payable t<» 
 irer, but having cndorseil on them oon 
 tempornneously with their making, and in the 
 case of one of them on the e<lge of the paper, the 
 wonls " the within notes not to be sohl,' which 
 endorsement the evidence shewed formed part of 
 
 ^3: 
 
 -2 
 
 *- 
 
 r} 
 
 
 
75 
 
 BILI-S OF ICXCIIANfiE AND PIIOMISSORY XOTKS. 
 
 rc 
 
 tlM! CdiitriKt liitwirii tlic ]i;iitifs. Tlio ""tes 
 were tninsffrroil to S,, with tlii' ■nord " i\()t" in 
 tliii .llxivo ('iicldiscliiilit, ill tlif laso (if oni; (if 
 tlioin enisdd, uml tiic xvlwilt' (if tliu said ciiildisc- 
 nioiit in till.' casi' nf tliu otlnr. in wliicli it \v:is 
 \»ritti'ii uliiiij,' the cd;.'!', tdiii (itV, Imt witlidUtde- 
 Hli-oyinjiiiny jiait nf tlic t'aci! of tlii; imti! : Held, 
 tliit wliftticr the words (if tlic alidVf cndcirsiiiii'lit 
 wtire nndciwritltii m- I'liddisi-d was inuiiatiTiai'. 
 tliey iK'iiiL' iiirt "f tlic <iiiL.'iiial coiitract, and tli; 
 fl'eut df it was to |irivciit ('. dis|id.siiii,' (if tin- 
 iidtcs to a lidldcr for value, Sd as tn preserve to 
 the makers all defences and c(|iiities, as against 
 tlio lirst lidldcr and voiiintecrs under him. thus ! 
 (lualifving their iieentialiilitv. .S'/nn'.vAuc/ v. 1 
 h.<fUU„n ,1 ,il., :?(»/{{.. Chy." I>. 3'JO. ! 
 
 Ik-Id, also, the iidtcs having hccii altered in a j 
 macerial jiart, l». «as disehaiyed, and S. cduld 
 11. it lie )iidt(ctoddii the giiiiind (if any negligence 
 '111 U.'s part ill respect t(i the iidtc in which the 
 .■lidorHemeiit was written almig the eilge (if the , 
 liaper, iiiasniiieli as the iidtcs were issued in a | 
 perfected shape, and the ddcti iiie of negligence : 
 (Idcs not ap|ily td such iierfccted iiistiiimeiits. ///. 
 
 It ajipeared that S. was a jirivate hanker ; that 
 lie had lieeii iiifdiiiicd liefnie taking the mites 
 that they were given in purchase df patent rights : 
 that lie noticed the erasure in the (ine (if them 
 lirst pundia.sed, and that he jLiid iiiiich less tli.iii 
 the cdmimrcial value of tiuni, while they liotli 
 bore marks of inrniiiity and indeed of knavery : 
 — Held, S. could not lie eiiiisidered an innucunt 
 holder of the Udtes. / 1>. 
 
 After a ])roniis8ory note, made l>j- three per- 
 sons, in these words : " We, either three (if us. 
 jirdiiiise to |iMj' l>. 1'. or hearer," had lieeii trans- 
 ferred to the ]ilaiiititl'"s testatdl', the payee's 
 name was adde(l to the foot of the note, appar- 
 ently as maker. It did not a]iiicar how it came 
 there, hut it was not his signature :- Held, 
 atlirming the judgment df the County Conrt, 
 Morrison. .1. A., disseiitiiig. that it was such a 
 material alteratidii as t(i vitiate the note ; and 
 that this would li.ave liceii so even if the name 
 had lieeii placed there l>y the jiayee or liy his 
 authority. Hiiil v. Jlinni'/in i/ rl iil.,it A. It. 403. 
 
 Held, alsd, that )irima facie the iiauie was 
 placed there impr(i]ierly ; that it Wduld have lain 
 npoii the testatdi', if alive, to acedunt for the 
 .alteration, and his death did not dispense with 
 this re(|niieiiieiit. Per .Mdii i.sdii, J. A. -As the 
 name df the payee was forged, it was incllectual 
 to alter the cliaracter of tlie note, and therefore, 
 (lid ndt vitiate it ; and in the ahsence of evi- 
 dence td shew lidw the name was added, the 
 presumptidii Wduld he that, if geiuiine, it was 
 placed there as an endoiseiiient. //». 
 
 V. PrISI NTMKNT Kill! P.WMF.NT, pRorKST, AMI 
 
 NdTici; (II' liisiKiSdii;. 
 
 The defendants made a joint and several pro- 
 missory note with one H.. .'is sureties for him. 
 payalile to the plaintilV: Meld, allirming the 
 judgment of the ( 'olllify ( "oiii t, that in default 
 of payment at ni;itnrity their liahility to pay 
 iH'caiiie alisdiute ; and that it was iki defence for 
 them that the iihiintitf neglected to present the 
 iiot« for payment, or give iidtice (if iKin -payment 
 liy H., of which they were igiKiraiit, and that 
 lH.'lieving the mite had heeii paid hy H., they 
 
 todk no steps to recover from him, although he 
 was alile to jiay, and befoie they lieeame aware 
 of such non-payment H. had become insolvent. 
 Wilson v. /iriiirii (t (il., G A. R. 87. 
 
 In ail action 11)1011 an overdue promissory note 
 payable at a jiarticiilar jilaee, it is not iieees-. iiy 
 to shew that there were mit funds at the jil ice 
 named wherewith to retire the bill ; all that is 
 : necessary in such case, even as against an in.ior- 
 ser, is to shew presentment, non-payment, and 
 notice of dishonour. MfDmniUl v. McAii/iin; 
 S A. 11. o5;j. 
 
 i The apjiellant.-^ discounted a note made by P. 
 
 land eiidoi.-:ed by S. in the I'.alik of ('ommeice. 
 
 ! S. died, leaving the res[iondciit his executor, 
 who proved the will before the niite niatuied. 
 The note fell due oil the hth .May, IS7!), and \\a.- 
 jirotcsted for iKin-payinent, and the b.ink, being 
 unaware of the death of S., addrcs-cd notice "i 
 jiidtcst to S. at Toronto, where the note wa< 
 dated, under H: Viet. c. 41, s. 1 (0). The 
 appellants who knew of S.'s death before ma- 
 turity of the note, snbseiiueiitly took uji the note 
 frointhe bank, and, relying upon the notice of 
 dishonour given by the bank, sued the defendant: 
 Held, reversing the judgment of the Ciiurt of 
 Appeal, ") \. It. -iriS, which aliinned the jiidg 
 meiit df the (.(uceii's P.eiich, 4't Q. B. .Si', that 
 the hdlders df the mite sued uiioii when it 
 matured, not knowing iif S.'s death, and hav- 
 ing sent him a notice in iiuisuanee of S7 ^ i't. 
 c. -17, s. 1, gave a good and sutlicieut notice tn 
 bind the (lefeiulant, aid that the notice so given 
 enured to the lieiielit of the apjiellants. li'"- 
 iirurr v. lioi/li-, (i S. C. K. 1(55. 
 
 Iiefeiidants were maker and endorser reajcc 
 
 tively df a jiromissory note for the accdinnidda- 
 
 tion of I)., who di.scduiited it with the plaintills, 
 
 they haviiiL' kiuiw ledge of the facts. On the 
 
 maturity of the note phiintill's handed it to I'., 
 
 who was their solicitor, for [irotest. I), did not 
 
 protest or notify defendants of its dishonour, but 
 
 delivered it to tlielil, adding that he had paid it. 
 
 About three months after its maturity \). ali- 
 
 scoiided in insolvent circnmstances, and alter 
 
 that defendants were for the tirst time notified of 
 
 i the noniiaymeiit of the note. In an act. nil 
 
 I against (lefendants on the note they plcided. on 
 
 e((uitable grounds, the above facts, and that liv 
 
 the laches of the phiintill's they were prevenlcil 
 
 from obtaining indemnity finm I>., and that if 
 
 coiii]i('lled to pay the note, they would be de 
 
 i franded out of the amoiint : — Held, a good 
 
 i defence, and that the defendants were diseliarg- 
 
 i cd. ('omiiHiiii liuiik 0/ < '(iiiiiiii'irv v. ilrcin <l 
 
 nt., 4o Q. B. 81. 
 
 .\ notary at Montreal, (,tuebec, protested a iioti; 
 ll)ion which the defendant, an attorney ]>im- 
 tising at Belle\il!e, Ontario, was endorser. I lie 
 
 ' notary could not read the defendant's signatme. 
 but made an iiiiitalioii of it upon tlie notices and 
 
 ! in the superscription of the letter which wa." 
 addressed to " Belleville P.O.," i.e.. Province el 
 ( hitario. The defendant was well known nt, ami 
 constantly reeeived lettds from the Hellevilk- 
 I'ost ( Mlico. There was jiroved to be a Belleville 
 ill New Brunswick, Other notes, with defeii- 
 
 i (hint's endorsement thereon, had been protested 
 by the same notary. The defendant swdri' that 
 he had never received the mitico ; but his clerks, 
 
 \ who were accustomed to take his Ictturs fmiu 
 
7C 
 
 BILLS OF EXCHANU1-: AND PK0MI8S0KY NOTES. 
 
 78 
 
 tlie i«ist (iffice, were not ealleil. The . >itit'e to 
 another endorser, atldressed .'o " Helleville I'. 
 (►.," was received l>y him :— h.;ld (I'lmieroii, .1., 
 dissenting), that if tlie iniitatiun of tiie defen- 
 dant's signature put upon the notice addressed 
 to Helleville was an exact imitation of defendant's 
 sii'natnre ujH)n the note, and such notice was 
 posted at Montreal, it would have lieen sulli- 
 eient, whether it reached its destination or not. 
 Hut, Meld (.Armour, .1., dissenting), that upon 
 the facts in evidence there should be a new tri.il. 
 I'er Arnio\ir, J. -The court were iii:itilied in in- 
 ferringthat the imitation of defendant's signature 
 in the address was us good as the imitation of it 
 in the protest, and that if it came to the I'lille- 
 ville post otliee so addre.s.sed it would have lieen 
 delivered to him ; and the plaintitV was entitled 
 to the verdict. Per t'.imeron, .1. - 'I'lie illegi- 
 hilitv of the ;iddress made the notic- insullicient. 
 liuillh V. Dickson, 4() *). 15. 1(>7. See next case. 
 
 A\'here the ludder of a note emiiloys a notary 
 to protest the same at maturity, it is his tlnty to 
 give tiie notary all the information that he is 
 possessed of as to the names and residences of 
 the indorsers. Therefore, where the signature 
 of aTi endorser Wivs so peculiar that no one unac- 
 i|Uainted with it could decypher it, althiniLih the 
 holdei- of the note was Well acipiainted v. itli tlie 
 sign.iture, and aware of the party's rcfideucc, 
 lioth of which he omitted to communicate to the 
 notary, who when protesting tlie note made, or 
 as near as might lie, a fae simile of the signature, 
 andsoaddresseil the notice of dishonour to •'Helle- 
 ville, I'. <).," hut the endorser swore that the 
 notice never reached him, though resident in 
 Helleville: — Held, (allirming tlie linding of 
 Canier.Mi, J.,) that the enilorser was discharged 
 .S,('., 7 A. 11. 7.V.). 
 
 The endorser, a married woman, died intestate 
 <luri»ig the currency of a note which she had en- 
 dorsed as surety for her husband, ami notice of 
 lirotest wiis s(!nt to ".lames Hell, execntoi- ot the 
 last will and testament of .M. A. Hell, IVrtli," 
 anil received by the husbanil, who resided with 
 liis ehililren in the house which his deceased 
 wife had occupied. No letters of administration 
 liad been granted: — Held, that the notice was 
 sullieient. McrdKiiils Bank v. lirll, 'JOthy. 4iy. 
 
 See Shiii/nif v. 77/.' .Virr/iitiil.'<' linn/:, 4(! (,». 
 11. *J,">, p. l>8. " 
 
 VI. AccKl-roll AM) MaKK!!. 
 
 Personal liability of president of a railw.ay 
 coni]ianv <in an aeeeplance of a bill of exchange. 
 See Mitdilvii v. Coj-, 5 A. K. 473. 
 
 Power of husband to sign notes. Kvidenee of 
 authority from wife. .See Cooy/i r (7 <(/. v. Illnck- 
 lock, A. H. u.'J.'). 
 
 Per Hurton, .1. A., where an action is brought 
 iigainst the two makers of a Joint ami .several 
 note if it fail against one it must fail as to both. 
 Iloinrr v. Keir ct itl., (i A. 11. HO. 
 
 VII. DitAWKK AMI KsnousKR. 
 
 Held that a third person holding a note for 
 tlio benelit of one joint endorser, cannot main 
 tain a Joint action against the co-endorsers umler 
 It. ^. O. u. llti, 88. 2, 3, us uiidurBcra for the full 
 
 anmiintof the note, but must sue each separately 
 in a special actiiui for his share of tlie contribu- 
 tion : — Held, also, that the Act does not refer ti> 
 partnership transactions. Snittll v. Iliililcht ni. , 
 31 C. P. \M'.^. 
 
 Qii;ere, whether the endorsement as maile by 
 the manager, was sutficient. Ih. 
 
 Sl'i; ('(IikkHiiii Bank <iJ' Ciini nil rci- v. (Incn ct 
 III., 4." ',). H., S\, p. 7<) ; ('i'iit.1 v. I'nrric «/ <//., 5 
 A. H. .'I p. 81 ; Jcnks ct nl. v. Dornn. '> A. I!. 
 ."),">S. p. .-iS ; Smitll V. Biililel, ct nl., ;{| ('. P. 373, 
 p. 8-2. 
 
 VIII. Al'TlONS (IN. 
 1. At icliiit 'rime. 
 
 The bill of exchange in this action fell due on 
 1st l»ccend)er, IS7.">, an<l the writ issued on 1st 
 l>ecemlicr, I8S1 :- Held (Cameron, .)., disscnt- 
 iui;), th.it till! statute began to run on the 'In 
 |)eeeiiiber, 187."), and tinrefore this aetion was 
 (■(imniemcd in time. Sinclair c. Itnlison, 1(! 
 (,>. H. '-Ml, remarked upon. Kili/nr v. Mii/cc, 
 1 (). i;., Q. IS. I). -287. 
 
 Per .Armour, .1. — Though tlu! holder of a 
 bill may put himself in a position to com- 
 mence his action on the day the bill talis due by 
 demanding, .inil being reiused [laynnMit, he is 
 not lioiind to do so ; and if he does not, the 
 acceptor has the whole of t\iv clay oi niatuiity 
 on w liieh to pay the bill, and the statute does 
 not eonimcnce to run until the day afli r. <,>u;ei'e, 
 wlictlK'r, even in ease ot Mich ilemand ami refu- 
 .s,il, the statute will begin to run on tiiat day. 
 III. 
 
 Per ( 'anieron,.r. — Inasmuch as by ( '. .S. 1'. ('. e. 
 42 s. 1."), the liill might have been jirotestcd .at 
 any time after three o'clock, on the clay it fell 
 due it was then overdue, and the action was 
 commenced too late. Il>. 
 
 Held, that the plaintitV, under the fa. ts stated 
 in the re|iort of this case, had est ilili.-jhcd his 
 right to sue upon the bill. ///. 
 
 •2. /'lens. 
 
 The C. I,. P. Act, It. S. (». e. .")(), s. 120, em- 
 powers the court or a judge to strike out jileas 
 not merely where they are enibariassing, because 
 confused in terms and so dillicultto understand, 
 but where they combine several defences in one 
 |ilea, or are reiietitions of a defence, already 
 pleaded, and may thus be embarrassing cir pre- 
 judice a fair trial. In this ca. ■•, being an actino 
 on promissory notes, the cle'endaiit having 
 pleaded total failure of c.'onsideration, addea 
 other pleas reiieating that defence, ami setting 
 up besides another agreement, not iieecss.arily 
 connected with the notes, .md so stated as to 
 leave it uncertain whether it was intended as a 
 separate defence or as siipiiorting the other de- 
 fence : — Held, athrming the Judgment of Came- 
 ron, ,]., that such pleas were properlv struck 
 out. Alicll V. McLaren, 31 C. P. .")I7. " 
 
 Declaration on a guaranty, by which, in con- 
 sideration of the plaintills accepting three notes 
 of it. for •t<7>'>l each, in satislaction of their claim 
 against U. & Co., defendant did, " tu the extent 
 
 C2 
 
 tr 
 
 
79 
 
 BIU.H OF EXCHANGE AND PROMISSORY NOTES. 
 
 80 
 
 of 97')1, piarantoe tlie payment of the first two 
 of the Said notes according to their tenor and 
 etl'ect." I'leiw I. That tlie notea were i>ayal)le 
 to plaintitrs' order, and tlie jilaintitfa endor8e<l 
 the tirst note to certain ))erson8 who held it :.t 
 maturity, ami to whom in the event of (1. 'lot 
 jtayini,' it, tlie iilaintill's were liable as endorsers . 
 that (i. nntilied defendant of his inability to pay 
 it in full, and defendant paid thereon ^-'7(5, of 
 which plaintitl's had notice, and afterwards (i. 
 failed to |)ay the second note, whereupoiulefcii- 
 dant paid the plaintill's .$47(>, being the balance 
 of the sum ot .*i751 guaranteed by defendant. > 
 2. That the liist two ni)tes, to the amount of | 
 81,-7<>, were jiaid to plaintiffs .as they became 
 due, wlu'iel:/ defendant's guarantee was satis- 
 tied :- Held," on demuiTcr, pleas bad ; for, as to 
 the first, defendant was not liat)le to the plain- 
 titl's endorsees, and no express or implied reipiest 
 liy the plaintill's to pay was shewn ; and .as to 
 the secciiid, the guaranty was not satisfied by the 
 payment by <;. of .■*751. Vrathcrn el al. v. Jiill, 
 45' Q. 15. 473. 
 
 A j)ronii.'<sr)ry note made'by the defendant had 
 been held by the Consolidated Hank, and after 
 its maturity, tlie defendant transferred certain 
 timber limits to the bank .as colhiteral security 
 for the payment of the note, which limits the 
 bank sold. Tlie plauitilTs became holders of the 
 note fell' value after dishonour, and after the tim- 
 ber limits trans.-iction, and brought this .action 
 upon the note. A eounterelaini .ag.ainst the 
 pliiintitl's and the bank by the defendant, setting 
 up that the bank has sold the timber limits I 
 without authonty and for an insutlicient jirice, 
 and were tiiereby guilty of a breach of trust, and 
 claiming that the defendant should be permitted 
 tosetotrso much of his claim therefor against 
 the bank as would satisfy the balance claimed 
 upon the note, waf= held bad, and stiuck out, as 
 not being j>roperly a counter claim. Per ("ame- 
 roii, J., unless reijuired by the clear legiil rights 
 of the defendant for his protection ag.ainst the 
 plaiiitills action, counter claims are not to be 
 favoured, ('(iiiuilidit SiCiiriticH Co. v. Pi'eiitice, 
 DP. Jt. :i24.— Dalton, .l/rt^cc— Cameron. 
 
 See M)'irli(iiitH liatil- v. Itobiiisnii, 8 P. K. 117, 
 p. 80. 
 
 IX. Dkfencks to Actions. 
 
 1. I'hihiliff nut (he /loltler. 
 
 The iiossession of bills of exch.ange by the en- 
 ilorger after he has specially endorsed them, is 
 primA facie evidence that he is the owner of 
 them, and that they have been returned to him, 
 and taken up in due course of time ujion their 
 dishiiiioiir, although there be no re-endorseinent ; 
 80 that by the possession he is remitted to his 
 original rights. In .Inly, 1877, W. drew a bill 
 of exchange on the defendants, payable to his 
 own order, and the latter accepted it. The 
 bill was first specially endorsed to the Hank of 
 O., which specially endorsed it for collection, to 
 the Hank of C It was dishonoured and pro- 
 tested, and came again into the hands of the 
 Hank of O. , which returned it to W. on or 
 before December, 1877. Afterwards, but how 
 did not appear, it got back into the hands of the 
 Bank of O. In 1881 the pLiintiff, who was W.'s 
 agent, got it from the bank of O., along with 
 other papers of W., and W., iu November, 1881, 
 
 endor.<cd ;t to the order of the plaintiiT, who now 
 sued the acceptors. When produced the bill 
 aiipcared with all the special endorsements struck 
 (uit, leaving only the signature of VV., to the 
 first special endorsement, and with the last en- 
 dorsement to the order of the plaintiff. There 
 was no re-endorsement from the Hank of O. to 
 \V. or to the plaintiff :— Held (reversing the de- 
 cision of Ferguson, J., wl.-^ had nonsuited the 
 pl.tintiff), th.at in the absence ->f other evidence 
 it was to be inferred that W., had satisfied any 
 cl.aimof the Hank of O., and had thereby pro 
 cured or h.ad the right to make the cancellation 
 of previous sjiecial endorsements. Callow r. 
 Lawrence, 3 M. & S. 9.5, cited and folc wed. 
 /Hack- V. Strlcklaiul et ((/.,3 O. I?., Chy. D. 217. 
 
 2. Coiiniderathn as a ground of Dn/ence. 
 (a) Aecotnmodation or want of Cons'uhration. 
 
 1 )eclar.ation upon a promissory note. Third 
 plea — " That the defendant m.ade the said note 
 with and for the accommod.ation of one W. C, 
 at the recpieat of the plaintiffs, in respect of .i pre- 
 existing debt, then due to the plaintill's by the 
 said \V. ('. alone, and the said note was drawn 
 payable on demand, with interest at 10 per cent., 
 and except as aforesaid there was never any value 
 or consider.ation for the making or payment of 
 the said note by the defendant." Fourth plea— 
 On ecjuitalde grounds. That the defendiint m.ade 
 the note jointly and severally with VV. C. for his 
 accommodation, .and .as his surety only, to secure 
 a debt due to the plaintitl's, ami that after the 
 note became due the plaintifl' gave \V. C. an ex- 
 tension of time for the payment of the note : — 
 Meld, tli.at the third plea was good, for it shewed 
 that no extension of time had been given, and 
 therefore that there was uo consideration ; and 
 that the fourth w.as not an equitable plea and 
 must be .amended by striking out the words : 
 " Upon e(iuitable grounds," and the jury notice 
 served with ' ' allowed to stand. Merchantx Bank 
 V. Hohinxon, 8 P. R. ll7.--Dalton, Q. C, 
 
 The defendants m.ade a note for $200, to one 
 M. to .assist M. in retiring p.aper in which de- 
 fendants were interested. AI. discounted his 
 own note for 5!20O with the plaintilTs, depositing 
 with them the defendants' note as collateral. 
 When M.'s note fell due, the defendants' note 
 being then overdue, he p.aid If 25 and gave a re- 
 newal for .^175, leaving defendants' note with the 
 )>laintitl's. Per Wilson, C. J.^Uefendants' note 
 was not an accommodation note ; but assuming 
 it to bo so : — Held, that the proper inference 
 from the evidence was th.at it was transferred 
 to the plaintiffs as security for the debt repre- 
 sented by M.'s note, not for th.at note specially ; 
 and that the defendants remained liable. The 
 Caiadian Bank of Commerce v. Woodward ei al. , 
 8 A. K. 347. 
 
 A married woman signed a note in blank, .and 
 gave it to her son " to be used as he liked." He 
 filled it up for ^1,200, signed it, and tr.ansferred 
 it to the pl.aintitf, who was not made aware of 
 the circumstances under which it had been 
 signed. It was renewed twice without the mar- 
 ried woman's name, the original note remaining 
 in the plaintiff's hands : — Held, (reversing the 
 i judgment of the court below), that the married 
 I woman was a aureiv in respect of the note for 
 
80 
 
 81 
 
 BILLS OF LADING AND WAREHOUSE KEOEIPTS. 
 
 82 
 
 liiT son ; and that the authority to the son as to 
 usiii;,' the note did not extend to keeping it afloat 
 after maturity without her knowledge ; and that 
 she had been discharged by the extension of the 
 time of ji.ivmL'nt. Di vanncii v. lirownlee et al., 
 8 A. R. 35"5. 
 
 (h) Fraud and lllii/nl Ciiw<iihvnthm. 
 
 The defendant was arrested on the charge of 
 enilii-ZzHng tines whicli lie had received as a 
 Justice of the Peace on the information of the 
 reeve of the townshii) claiming the tines, who 
 took the proceedings with a view to force the 
 defendant into a settlement. He was brought 
 before a justice ;ind committed for trial, and 
 ■while under arrest pressure was brought to 
 bear on him to compromise by giving security 
 to procure his release, and the plaiutifT, who 
 proposeil to act on his behalf, gave a note to 
 the township for the amount claimed and in- 
 duced the defendant to give him a note for the 
 amount, endorsed by his wife. The note in- 
 cluded the amount of the lines, and also ex- 
 ])ense8 incurred by the township in an investi- 
 gatiiin of the defendant's alleged default, to 
 whicli the latter was not a jtarty. The de- 
 fendant was then brouf,dit before the deputy 
 countj- judge, but no evidence was otfered, and 
 it w.is stated that the all'air had been settled, 
 and that the charge would not be proceeded with, 
 whereupon the defendant was discharged. The 
 jilaiiitiff now sought to recover upon the defen- 
 dant's note : — Held, that the consideration there- 
 for being the stifling of a prosecution for felony 
 was illegal, and rendered the note void, and that 
 the plaintiff was in no better jiosition than the 
 townshii) woul.l have been had they taken the 
 note. Hill V. HMell ft lu:, 2 O. 11., t^. B. JJ. 
 '2j. 
 
 H. endorsed a promissory note made by C. for 
 the purpose of retiring another snnihir note 
 which ho had previously endorsed for C.'s ae- 
 coinmodation, and gave it to C Instead of 
 retiring this note, however, ('. handed it to the 
 plaintitr in j)ayment of a debt, who took it in 
 good faith, but made no inijuiry respecting C.'s 
 title til the note or his autliority so to deal with 
 it:— Helil. alHrmingtlie judgment of the (Queen's 
 Bench, 43 Q. M. iV.»!», that the plaintiff was 
 entitled to recover against li. C'ruxn v. Carrie 
 Hal., 5 A. K. 31. 
 
 J., an infant, gave to M. a ))romissory note for 
 the purchase money of a buggy, endorsed by his 
 father, who was of unsonnd mind, and unable to 
 understand what he was doing. The father re- 
 ceived no consideration, and M. was not aware 
 of his condition :— Held, on ai)peal from the 
 master at Woodstock, atlirming his decision, that 
 the frther's estate was not hable. lie Jaiiirn, 
 1)1'. K. 88.-Hoyd. 
 
 (c) Partial /"a if iiri' of Comshlvration. 
 
 The defendant agreed with the plaintiff tliat 
 whatever goods P. should order of the plaintiff 
 he would i)ecome surety for. P. sent a written 
 order to the plaintiff, who in addition to the 
 goods ordered, sent others, and the whole con 
 signment was invoiced at prices higher than 
 those (juoted by the plaintiff and than those 
 6 
 
 at which P. had ordered some of the goods 
 Without disclosing these facts to the defendant, 
 but in perfect good faith, the plaintiff presented 
 a bill of exchange upon P. for signature by the 
 defendant, who signed the same supposing that 
 it was for the price of the goods ordered. P. 
 accepted the bill and kept the goods. But the 
 Court of Appeal reversing the judgment of the 
 Queen's Bench, 4.5 Q. B. 380 :— Held, that the 
 defendant was liable to the extent of the goods 
 ordered, anil that the consideration for the bill 
 failed as to the excess only. Barber v. Morton, 
 7 A. R. 114. 
 
 3. Payment. 
 
 A promissory note for 8fi,200, made by the 
 president and secretary of a syndicate formed 
 for completing the Hamilton and Dunilas street 
 railway, in favour of ()., S., and the defendants, 
 was endorsed l)y them to the Bank of Commerce 
 or order. On the day the note fell due O. and S. 
 respectively paid the same, O. paying ^2,000 and 
 8. §4,200, the remaining sum (lue thereon, S. at 
 the time directing the bank agent to endorse it 
 to the pi lintitf, who it appeared gave no value 
 for it. The agent endorsed it as fidlows : " Pay 
 to .J, S., " the plaintiff "or order. 1). Hughes 
 Charles, manager." The plaintiff thereupon sued 
 the defendants .as endorsers :— HeM, that the 
 jdaintiff could not recover, for the evidence 
 shewed that S., by his payiiiont intended tr) 
 satisfy the note, which being made for a purpose 
 directly relating to and not collateral to thj 
 partnership of which S. and defendants werj 
 partners, S. could not recover against defendants 
 thereon, and as the plaintiff was found to have 
 only the same right as 8., neither could ho re- 
 cover. Small V. IMdel et al., 31 C. P. 373. 
 
 The defendants discounted at a bank a promis- 
 sory note which A. had given them, and on 
 maturity it was paid to the bank out of A. 'a 
 moneys within thirty days of his insolvency. In 
 an action by tlie assignee to recover the amount 
 from the defendants as being a payment within 
 s. 134 of the Insolvent Act of 1375:— Held, 
 reversing the decision of the County ('ourt, that 
 they were not liable, as tile payment w-s not 
 made to them, but to the bank, who were the 
 actual creditors. Miller v. Harvey, 6 A. li. 203. 
 
 4 Other Defences. 
 
 Sec Wihnn v. Bnvnii et al., fi A. R. 87, p. 76; 
 aaiinVrtn Ser'ir!tii:i Co. v. Preil'ice, 1) P. R. 324 
 p. 7». 
 
 See, also, IV p. 74. 
 
 BILLS OF LADING AND WAREHOUSE 
 RECEIPTS. 
 
 By the Act 34 Viot. c. 5, D. , it is not neces- 
 sary to the validity of the claim of a bank under 
 a warehouse receipt, that the receipt should 
 reach the hands of the bank by endorsement ; 
 the bank itself may ni.ake the deposit, and re- 
 ceive from the warehouseman the receipt. Smilk 
 V. 'I he Merchants' Bank, 28 Chy. 629. 
 
 r- 
 5: 
 
 
 
83 
 
 BILLS UF SALK AND CHATTEL MOll'l'(JA<iKS. 
 
 84 
 
 A bunk liad clisLniiiilLil fur a ti-.iiiiiif,' linn, on 
 tin; iHHli'iHtanilinn that a i|Uantity <'l' cual pui- 
 fliam'il in tin; I'nitid Slatt,s liy t\iv liini hlidiild 
 Ik' ('(in.sigiit'il to till' liaiik, ami tliat tin: liaiik 
 wmilil tranHlcr tii tiii; liriii tlii' Mils ul lailiii;i;, 
 mill hIiduIiI niH'ivc! finni mii; of tlii: niciiiliri.s of 
 till' |)aitnirKlii|i Ium iri-iipt aM a wliailiii^tiT ami 
 wait'lioiiHiiiiaii fo|- llic iiial as lia\iii;4 Iiltii ili'- 
 positt'il I'y till' lialik, which was ucL'oicliii;.'ly 
 ilnlii!. Till' |iaitli( I'sliip liaviiii; lirionic iiisiilviiit, 
 till! assijiiii'i' siiiij^lit to hold tln' I'oal as thi';;iioils 
 of tin; iiisolviiits anil liliil a liill iiiiiitarliiiii; llu' 
 validity o! tin; rircipt. It aii|i(arrd that the 
 insolvents had niixi'il tlii' roal with olhi r coal, 
 
 and had sold son f it, and that all the coal in 
 
 llie |)icniiseH wan not slilliiicnt to .-iiiswer the 
 i|iiaiititv eoiii|iriMd in the reci ipt. I'nder tlnsi; 
 ( iicimistaiice.s it \v,is Held, that theliank had a 
 ri^^ht as aj,'aiiist the as.~igiice an it would have 
 had aeainst the insolvents to hold all the eoal 
 in store of (lie desiiiiitioii named in the receipt, 
 and also to payment for any such coal an might 
 havii hren sold liy the plaintill'. / h. 
 
 The iiriivisionH of the 1(4 Viet. e. ">, l)om., as to 
 warehouse receipts do not, invade the functions 
 of tlu; Provincial l,i,L;isIatiire liy an interference 
 v.itli "property and civil rights" in the pro- 
 vince. //». 
 
 |The decision in this ca.-e w .is reversed Ky S A. 
 K. 1."), lilit the decision of tlie Court of .Appeal 
 liiiH since In en rewrsed liy the .^''iipicniu Court; 
 nee'JOC. ].. J. (Id J. 
 
 The N. A X. W. Hallway Co. and the <;. \V. 
 I'ailway Co., sliip|ied on the plaintill's vessel a 
 ipiantity of wheat from Hamilton to Kiii^'ston, 
 (iiiisij;neil to the M' Isons liaiik in care of the de- 
 fendants. Tin; hills of lading cont.iined the fol- 
 lowing piovision : " All delieieney in cai'^'o to lie 
 p.'iiil lor liy the carrier, and deducted from the 
 ireiyht, and any excess in the ear;;o to lie p.iid 
 for to the carrier hy the consi;,'iiee." The ijuaii 
 tily deserilied in the hills of ladiiij,' was |."i,;{;!.S 
 lO'ilOths liiishels, while the actual i|U.'intity 
 shipped was l."),S,'t!S l(»-()()lhs Imshtdsand the dis- 
 crepancy v.is shewn to have occurred liy the 
 (iiiiiHsion hy mistake to include a dralt of .VK) 
 ImihIk'Is, in niakinji up the statement of the ipian- 
 tity .shipped. The plaintill', the carrier, claimed 
 that he Wan eiitith d, for his own use, to the "lOO 
 liiishels so shipped in excess: Meld, tli.it the 
 lirovision in the hill of lading did not ;.;ive it to 
 liiin, and that no eu.stoin or usaj,'e w.is |iroved, 
 };iving it such nicaninj,'. The liefeiidant.s who 
 had aecouiited for such excess to the shippci-, 
 were therefore held not lialile to the jilaintilF. 
 Miirfnii V. T/if Khni.slvii tint ^ftm^r<^al Fnnniril- 
 
 hi;/ Co., .•(•_•('. I*. :{(;(;. 
 
 The jilaintiir, cdnsignor, consigned Imttur to 
 liis eo ]ilaintiirs, consignees, in Kngland, and 
 shipped it liy the detendant eonipanics under a 
 I'lintruet with the defendant Idspatch Co., on 
 thrniigli hills of lading, making it ileliverahle to 
 order or assigns, and endorscil hy the |ihiintiir 
 to IiIh eo-]ilaintill's, hi.s vendees, in Kngland, at 
 a through rate paid to the l»tspatch Co. , and ,'ip- 
 portioned among thein and the other two defen- 
 dant eonijianies liy agreement. 'I'he liutter was 
 carried liy the defendants, the «ireat Western 
 Kiiilway Co., from London Ont. to New ^'ork, 
 and there delivered in good condition on ii 
 liarge ln!longing to the defendantH, the (jreiit 
 WeBteru Steamship Co. It reiuaiued on the 
 
 liarge through the negligence of the latter com- 
 )i,iiiy for some days during very hot weather, 
 whercliy it was iLimagcd. and it was in that 
 condition received hy the consigiieeH. Hy 
 clause S of the hill of lading it wiis stipulated 
 that " the consignees, or party .-ipplyinu for the 
 goods, are to sec that they get their right marks 
 ,'iiid nniiihers, and after the lii:literinan, or 
 w harlinger, or p.'uty applying for the goods, has 
 signed fill' the same, the ship is to lie discharged 
 from all responsiliility for iiiis-delivcry or non- 
 deliverv, and from all cliunis under this bill ol 
 lading." Osier,.!., who tried the ease, found in 
 favour of the plaintill's, and gave a general verdict 
 against all the defendants : Held, per llagarty. 
 C. .(., allirniing the decision of Osier, .1., that 
 the condition of the bill of lading should, not- 
 witiistanding the general words at the com lu- 
 sion, be restricted in its api'Iication to eases 
 arising from mis delivery oi' iiou-di livery, and 
 did not relieve the defcnd.ints.the stc iiiishiji ( 'o. 
 from liability for actu.il iiegliv'eucc, but that the 
 railway company were not liable. |\r ( 'amemn 
 .1. The condition in the bill of lading, by its 
 concluding general terms, ab.-olved the defend 
 ants from liability for the negligence complained 
 of. //(Ill III (I Ili V. }/! i-iliiii,l^-' /),.<i,iil,-li Co. il 
 a/., -to. I!., ^». H. I). 7'-';t. 
 
 lill.l.S OKSAI.M AM) ( IIATTIIL .MOHT 
 
 (;.\(;i;s. 
 
 I. Itcctsri.'Ar Ion .vnh Ciiani;i; oi' Pu.ssi;s- 
 
 SHiN. 
 
 1 Ajjhhinl nf /'.iitiii /'li/i'-t. ,S4. 
 
 2 /!'iiish-i,r„,ii, si;. 
 
 .'t C/llllllli III' /'ll.SMS.<iillt, S(I. 
 
 4 /ti-liliii;l, .SS. 
 
 H. Ml.sruii'i |i)\ II!' (liiiilis, SS. 
 
 III. Ciinsiiii;i;aiiun ami I'.o.nv I''iiii:s, S!(. 
 
 \y. Hii;mix ami l.iAiifi.iriKs ok Miini'<iA<ioi! 
 AMI MonriiAiiKK. AM) riiosi-; ci.AiM- 
 rNii I snKi; iiiiim. !l(). 
 
 V. Wild MAY iMI'KAfll, !>!!. 
 \'l. I-'KAIIi ami l''l!AI|ill.K\r I'l.'l'l r.UKNC'F.S — 
 
 .S'(( I'"i;ai lui.KN'i' Co^•v|■,^ wi'K.s. 
 \'II. .MiiUTcAiii; III' .Siiii's .SVi Siiii's. 
 
 I. HwiisritATiiiN AMI CiiANi;r. (ir I'ossixsio.s. 
 
 1 Ajliiliirlt (>/' /iiiiia /'ii/ri. 
 
 The allidavit of bona tides in a chattel mort- 
 gage ]iui'ported to be sworn before " T. H. 
 I'".," without any addition. The allidavit of ex- 
 ecution was sw orn before the same commissioner, 
 his name being followed by the word.s, " .\ 
 Coniiuissioiier in I'.. H. itc."- Ibid, no objeetion 
 to the allid.ivit of bona tides. //niiiiflnii v. /liir- 
 nsiiii, 4(i (). H. I '-'7. 
 
 The allidavit annexed |to a ciiattt 1 inortgnge 
 omitted the word.s. "or accruing due," after 
 those "so justly due:" — Held, that the delit 
 might be stated as due when it really was due, 
 and that it need not be necessarily stated as 
 either due or aeuruing. /''(irlimiir v. MvDonald, 
 45 Q. B. 23;{. 
 
84 
 
 85 
 
 IJILLS OF SALK AND C'llATTHL .MOUH JA(JI<X 
 
 80 
 
 The fttlidavit statod that tlie iiiortj^aj^'i' wim I 
 not j^riiiitod for i\w |)ur|iose of pniti't'tiii^^ tin: 
 ^ooil!< anil cliattcls a;;aiiiHt tlu! ci'iilitors of tlio 
 two iiioi't^^a^oi'M, naming tlidii, or iiiovciitiiiL; tlio I 
 croilitoi's of tlio Hail) iiioi't;,'aKoi' from olitaiiiiii;^ { 
 payiiiciit for any t'laini agaihHt him, i\u: said ' 
 niortj,'aKoi' : — Ilohl, Mnliicicnt, for that tho word I 
 niort>,'a>,'or woidd hkniu oarh of tlio mortgagors ' 
 ]irevionNly mciitionud. III. { 
 
 Till' omission of the word " him," at tho con- 
 chisiiiti of tht: ailldavit of Imna liilcs rcgistcnd 
 with a i:hatti'I mortgage, has tin; illVct of du- 
 fitroying the scturity as against an cxiM'nlion 
 crciiitor who has seized whih: (lie goods nniain- 
 cil in statu i|Mo, hut docs not inipaii' the instru- 
 ment as hut woen till! parties. /)nri.i v. Wii'L.'iiiii 
 el til., I O. 1!., Chy. 1». ;{(;<). 
 
 |{., the customer of a hank, exeeuted a chattel 
 mortgage on his household ctleets, hy way of 
 collateral security, in favour of the liank, which 
 was allowed to run into default, wiiercupon the 
 mortgagees proceeded to a sale, and appointed 
 \V., their Iiailitr, foi- that ))UriPosc, who had the 
 property appraised and .sold it to the plaintill, a 
 creditoi- of U. , liy priv.itc sale for ."^'.ItM) ; and ex- 
 eculed a hiii uf sale thereof. The plaintill', in 
 his evidence, swcui; that li. owed him aliout 
 SI,(MM>, and he thought there w.isanipli: security 
 lor the .s'.KHI ami also additional security for 11. s 
 indehteduess to himself, and til.it tiie gomls 
 seemi'd to he Wiirtli alioiit .S"),0(M); and tlie plain- 
 till', w ithout ilisturliing in any way the possession 
 ol U. , rented tile property to him, and he reinain- 
 ed, as he had theretofore lieeii, in pos.session. In 
 order elleetually to carry out the proposed al • 
 raugeiijeut with 15., tin: liank hy special power 
 appointed their local manager agent to accept 
 the chattel mortgage , and as such .•igcnt to make 
 the ;itlid,ivits reipiired to he made liy mortg.igees; 
 — Held (1) (revi'isiiig the judgment helow) that 
 it need not appear on the allid.ivit, or tlu; mort- 
 gage, or the papers tiled therewith, tli.it tlie 
 agent was jiware of the eireumstiinces coiineeted 
 with such mortg.ige. Cnrli'^tr v. '/'(//'/, 7 A. h'. 
 10; .TJC. I'. 4;{. 
 
 In Noveniher, 18SI, 'i chattel mortgage was 
 made to secure the |ilaiiitiir as endorser of a 
 ]ir(iniiss(iry note of the mortgagor, dated Ith 
 
 Octoher, l.SSI, .it two ii tlis. A rccit.il in the 
 
 instrument stated that it had heen given "as 
 security to the mortgagee against his endorse- 
 uient of H.iid noli . or any renewal thereof that 
 shall not extend the ii.iliiiity of tlie mortgagee 
 heyoiid one year from the date thereof; .•ind 
 ugain.--t any loss that iii.iy he sustained hy him 
 l)y reason of such endorsement of said note, or 
 any renewal thereof." The atlidavit stated it 
 was made " lor tiie exiuess piii pose of securing 
 the mortgagee against the luiynieiit of such his 
 liahility lor the said mortgagor hy reason of the 
 piomissory note therein recited or any future 
 note or notos which lie may endorse for the ac- 
 coinmodation of the mortgagor, whether as re- 
 newals of the said note or otherwise :" -Held, 
 (reversing the judgment of the court helow,) 
 that as the mortgage itself was good, and the 
 atlidavit oovered all tliat is reipiired hy the Act, 
 that part of the aliidavit from "or any fui.re 
 note' to the end was nnnecessary. and could not 
 vitiate the security. Keongh r. Price, 'J7 < '. 1'. 
 30!l, remarked nnon. J)rixc'iU v. Gnai <t al., 8 
 A. R. 300. 
 
 It is suHieieiit if one of several mortgagees 
 m.akes the atlidavit reipiired hy 11. S. (>., c, ll'.l, 
 a. -2 ; Titlii/ v. Cniih, 4 U. l!.."('hy. D. (ilM). 
 
 2 lii'jint ration. 
 
 Where the goods forniiiii,' the suhjeet of a 
 chattel mortgage are in lioiid, it is not neces- 
 sary tiiat the mortgage should he registered. 
 Mill/ v. '/'/if Sii-iiri/i/ L'liiii mill Siiriiu/s <'ii., 45 
 (.). ii. 10(1. 
 
 A chattel mortgage W.is duly executed on the 
 I'Jtii of .Inly, and liled on the JStli, the 17th 
 having heen .Sunday : Held, .illirming the judg- 
 ment of the County ( 'oiirt, tli.it such registration 
 was too late, the Act It. .S. O. c. Il'.t, reipiiriiiL; 
 the same to he ell'ectid within live days from 
 tlie execution of the instruincnt ; that .Sunday 
 counted as one of such live days, .iiid that Itillc 
 4."t7, '). .1. .\et did not apply. Mi-Lh'Ki v. I'iii- 
 hrluii, 7 A. i;. V.M. 
 
 The mortgage, hesidc.s heing ;i security for 
 .s|, KM) actually adv. meed, pruvided that itshoiild 
 also he a security for furtiier advances, if ueees- 
 sarj', of goods and iiieicliandi/e to ena'de the 
 miirtg;igor "to carry on hiisine.ss," -not "to 
 enter into and carry on " as in the st.itute, - 
 which siioiild "lie re-p.iid on deinuid .it any 
 time witiiin one year troiiillie dale hereof, or 
 such other time as the part Irs may .igree there- 
 to " : Meld, 'hat tile iimis>ioii of tile Words "to 
 enter into " could not render it unnecessary to 
 register the inortgage, ;is regarded the .S|,l(M). 
 i^iiarc, per Wil.^on, ('..)., whether the cl.iiisi for 
 future advaiiii's was not void is eiialiiing [lay- 
 imiit to lie del.iyc I heyoiid the year. //'. 
 
 M. .agreed to manufacture .ind furnish to the 
 joint .iceoiint of himself and the pl.-iiiitill' a i|n.'in- 
 lity of st.ives to he lo.ided in cars at a railw.iy 
 station hy a d.ay named. l!y the terms of the 
 agn iiiiint the st.ives were to he considered at 
 all times, whitlii r marked or not, tlie property 
 of the plaintill'.is security for .advances : Held, 
 tli.it nndi r this aglielneiiL tliesta\es heeailie the 
 pi'o|ierty of the pl.iintiH' as soon as made, and 
 never were the inoperty of .M.. ,ind that the 
 ;igrecnient did not reipiire tiling under the ( 'hat- 
 ti I .Mortgage Act, .and the lil.iintill therefore was 
 entitled as against an execution creditor of .M. 
 KiUiy V. Ji'uijir.i ,1 nL, IW ('. I'. (i-J4. 
 
 See also, next suh head. 
 
 3 f'llilHtIf o/' Pll.t.ti\^s'n>ll. 
 
 It was allegeil that the plaintill', who was 
 living w ith his inotlier, g.ive the hoises in ipies- 
 tion to her I'm his hoard, hut no price was lixed 
 for them, and they were kept .it the house and 
 used hy the plaintill' as hefore : Held, that 
 there w.is no sutlicieiit (;hange of iiosscssion to 
 dis|iense with a registered liill of sale, ;iiid the 
 s.de Was void as a;;.iiiist the assignee in insol- 
 vt iicy of the plaintill. Smiir v. Smilli, 4r)(,>. 1>. 
 
 lot;. 
 
 'I'he mortgage covered growing crops: — Held 
 (.\rinimr, .1., dissenting), that such crops lieing 
 incapahle of delivery or change of possession 
 without ehaiige of oicupatioii of the land, the 
 mortgage as to them was not within the Chattel 
 Mortgage Act. Jlniiiillini v. Iliirrixvii, 4() 'j. 15. 
 
 r-'7. 
 
 ••r 
 
 I'. 
 
 .1. 
 
 «: 
 
 J- 
 
07 
 
 IWLI.S OF SAI.H AND ClIATrKL :M0IIT(;A(JES. 
 
 88 
 
 U., a (IryKooilH ilt^alor in (tttiwii, ocniHiKiicil 
 lii» Htc"'k-m tiaili! tuS. S. \ Cn., iiiictiniiccrM in 
 'rdriiiitd, for H.ili', till' |ir(i('iMils tci lie a)i|ilicil ( IhI) 
 ill |iliviii"lit of ,<S(W)nilvaiiricl to H. liy S. S. \ ('o., 
 ami ('.'ml) ill jtayim'iil'if ■'*'.'.V) aiivam'cd tiy McM. 
 
 K <'.), Attt-r till' t; 'h hail iiMclii'il IIh' waii!- 
 
 liiiiisn of S. S. A Co., H. >{avi' otliiT onli'iH on tin- 
 jiioi'i't'ij.H, wiiii'li tlicy ac;i'i']itt,'cl ciimlit loll illy. 
 After the Hale liail liccii ailvcitisiMl, Itiit lirfoic 
 the time aiipoiiitcil for Hclliiii;, the slicriH' Ic'vicil 
 on tho j.'oo(ln iimlcr an exeeiitioii Hiieil out liy 
 tlio ilffcnclantH who, on aseertaiiiinj; the nature 
 mill lunoiiiit of S. S. iV ( 'o. 'h claini, ]iai(l tlit^ same 
 to tliein, aii'l the sale hy ariaii>,'enient was 
 allowed to |iioceeil, the aiiioillit reall/ed tliere- 
 troin heiii;; ]iaid into the handx ol the sherill', 
 who hIioiiIiI hold the Haiiie until tiie ri^htti of all 
 jiarties were aHcertaiiuMl. The Hherifrthereniion 
 ranged the several idainiantH to inter|ilead : — 
 1 lelil , allirniiiiK the judgnielit of tlic! ( 'olirt below, 
 'i\ (I. r. .'t'JO Armour, .1., dinsentiniL,', that the 
 Hi^veral orders on S. S. & <!o. operated as eijiii- 
 talile assiLrnnients of the (,'oods or their proe<'eds; 
 that the eoiisi^'iiment to S. S. &('o., was as eoni- 
 plcto and eontiiiuoiiH a elianj;e of possession as 
 under the cireiimstaiR'osit was jiossibh; to efFect, 
 and therefore no necessity cxisteil under the 
 4 'hrittcl M ortj,'!i;^e A< t for rej,'istering the orders, 
 if that could he done ; and that the defendants 
 having by their ]iaynient to S. S. it Co. hcen 
 siilirogateil to their ri>,dits, were entitled in 
 jiriority to all the other claiinants to rank upon 
 the proceeds for the sum soailvaneeil. McMiistir 
 rfal. V. Uiirhnil <t al., 8 A. I!. I. 
 
 Whore possession is changed it need not be 
 given personally to the creditor, jmrchaser, or 
 nioitga:;!'.! ; it ma}' ei|unlly Ix! j,'iven to a trustee 
 or liailee for him; and the dehtor may increase 
 the claini of such liailee, or may charge the 
 goods with further sums in favour of other per- 
 «on.s. S. v., ,-(1 C. P. ;I20. 
 
 M. carried on r. retail liiifliness in a village 
 store, on ])remises known as the "Star House,'' 
 from a design over the door, liut there was noth- 
 ing to indicate who was the proprietor. He sold 
 the stock in trade to the iilaintiD'in August, and 
 formally handed over to him the keys, at the 
 same time telling M., his clerk, that he would 
 not reijuire him any longer. The jilaintitl' gave 
 <ine key to .M., telling him to open the store next 
 morning, which he did, hut the jilaintifl' next diy 
 quarrelled with M. and dismissed him, and he 
 then eiii])loyed M. until tiie 1st of Octolier to act 
 as sah^sman, &c., the plaintill' hciiig at the store 
 a good |iart of til's time. The change of liusincss 
 was advertised, and itecanie well known in ho 
 lieighhourhood, and new hooks were opened liy 
 the plaintill'. The stock was seized on the 2nd 
 (Jctoher under execution against M. The tr.ins- 
 action was found to have been in good faith and 
 for valuabh; consideration : — llehl, that the (pies- 
 tion of change of possession was one of fact to be 
 determined on the circumstances of each ca.se, 
 and (reversing the decision of Osier, ,1.), that 
 there was here such an actual and continued 
 change of jHissession as to dispense with the ne- 
 cessity for a bill of sale. Hagarty, C. J., dissent- 
 ing, and holding that the iiuestion being one 
 of fact, and the learned Judge having found 
 as a fact that the change of {lossessioii was nut 
 actual anil continued, his finding should not be 
 • disturbed, as it could not be said to be clearly 
 
 made alliilavit of the amount due uji to the lOtli 
 April, and refilcd the mortgage 
 
 wrong. Scriliiii'i- v. McLnirn ct al., 2 0. 11., Q. 
 H. J J. 205. 
 
 4 li'i'Jilhiii. 
 
 Held, aflirniing the decision of the County 
 Court, that tlie subseiiuent jiurehasers and 
 mortgagees mentioned in .sec. 10 of the (Chattel 
 Mortgage Act, II. S. (>. c. II!), are those becom- 
 ing such after the ex]iiration of a year froni the 
 tiling of the mortgage. Where therefore the 
 inortg.nge was regi.stered in August, 1S78, and 
 the plaintill' purchased the property in M.arch, 
 I.S7!', anil the mortgage was not rctiled : — Held, 
 tli.'it the plaintill' was not entitled, as against the 
 defendant, who took tin? property from him in 
 December, 187!'. J/mfi/iiiH v. Julninton, 5 A. U. 
 44!). 
 
 The plaintiH' held a chattel mortgage made by 
 one (i., which was dated Ittli May, 1870, and 
 Hied IMth May. I>efeiidants' mortgage from the 
 same mortgagor was dateil in the ftecemlier fol- 
 lowing, (hi the 12th Ajiril, 18H0, the plaintill' 
 
 "lie III) to the lOtU 
 '. under the 11. H. 
 (>. c. IIK, s. 10. The dLfendants were Landlords 
 of the mortgagor and illegally distrained for rent, 
 wliireiijion the ]daiiitill' brought trover for goods 
 levied upon bj' them and containeil in liis mort- 
 gage :- Held, that the defcnd.ints were neither 
 cri'ditors nor siibseipient purch.isers or mortga- 
 gees within the statute, and therefore could not 
 object to the mortgage b(!cauHe the allidavit veri- 
 fying the stateinent of the amount due was not 
 made within the thirty days next jireccding the 
 ' expiration of the year. Semble, that such alli- 
 davit and statement should be made within the 
 thirty days. LInjJiu v. MrKunic ct ii.r., 46 Q. 15. 
 
 o:}. 
 
 Kissock V. Jarvis, !) ('. 1'. 130, as to the neccs- 
 j sity of the renewal of a eh.attel mortgage from 
 ! year to year, approved of and followed, notwith- 
 : standing the siib.seijiient legislation contained in 
 j K. S. (). c. liy. Bctiumoiit v. Vniiii/) el al., 45 
 ii. 15. rir). 
 
 i Held, (Patterson, J. A., diss.) that as under 
 I the circumstances stated the chattel mortgage 
 was satislicd (jiio.ad the goods, the mortgage 
 could not pro])erly bo re-liled ; and notwitlistand- 
 ing the continued possession of the mortgagor 
 (H.) it was not necessary for the plaintill to file a 
 bill of sale from the bank to himself in order tn 
 preserve his rights as against execution creditors 
 of or bona lide iiurchasers from 15., the mortga- 
 gor. CaiiUlc V. Tiiil, 7 A. 11. 10. 
 
 See Tide!/ v. Craih, 4 O. R. 090, p. 90. 
 
 II. DusCKir-TIOtl OF fiOOD.S. 
 
 In a bill of .sale certain goods were descrilied 
 as " one brown stallion, ten years old ; one bay 
 horse, eight years old ; one black mare, nine 
 years old " : -Held, a sullicient description. Vor- 
 ni'iU V. Ahill, ."{I C. P. 107. 
 
 Semble, that the description of goods as "in 
 bond," means in the customs warehouse, and is 
 a sutlicient deHcri]ition as regards locality. Mail 
 V. The Sccuriti/ Loan ami SavimjH Co., 45 Q, B. 
 100. 
 
S9 
 
 BILLS OF SALK AND CITAITKL MUllTdAOEH. 
 
 90 
 
 acniblc, tliiitiii>i(in()nii Ixiivnl of iv vohhuI Wduld 
 not imH« to II iiiolt^^iiguo nuclei- tin' winU " willi 
 hor iHiiitH, )inm, iiiminiiiitinn, hiii;iI1 iiriim, iiinl 
 npimrtuimiiciis." St. Ju/in v. Uiillinnit, A7) <).U. 
 (il4. 
 
 M. owniiin piii'ts of lots l.'{ mill 11, in tin: 'Jnil 
 coucuHsiim of Murruy, gavo ii cliivttol iiiorti{iigu 
 of certain cropH, m'luiii, iiuy, &o., «lcMi.Til)i'cl jm 
 "now heing on tliu iirciiiiHus Hitiiatuim lliu niutli 
 i^iwt-half ot lot U ill till! Uiiil coiicfHNion, and 
 north half of lot It in tliu Maid ooncinNioii of 
 Murray : " -lluld, that crojm and hay uiioii lot 
 13 could not pass. Oraxn tl nl. v. AnHt'tn, 7 
 
 A. i{. r.ii. 
 
 Till! goods and ihattils wcru doscril.'ud in a 
 chattel iiiortyagi! as follows :—( 'irtain sprcilic 
 articles were lirst cniiincrated in the iiiort;,'a;,'e, 
 and the descri[itiiili tlieli proi'eided, "also tlie 
 stock of gold and silver watches, jewidlery, and 
 electro-silver plate, whicii, at the date hereof, is 
 in the jiossession of the mortgagor in his s:iid 
 store " (heing a certain store of the mortgagor 
 tliereinliefore speeilied). The evidence siiewid 
 the electro-iilated goods and watches were mini- 
 bered, and might have heeii identiliid thereiiy : 
 —Held, a siillieient description of the gocds 
 MiortgJiged. Sri/Kirmi/i v. Mcriitiit iSilvir J'taliiiy 
 Co., :U). U., ('hy. I>. 4i:{. 
 
 In a deeil of !issigiiiiicnt for the lienelit of 
 creditors, goods and chattels were desi'iilied ,is 
 all the stock in trade, goods and eliattels, iVe. , 
 including, among otiier things, all their stock in 
 tnule whicli they, the assignors, "now have in 
 their store and dwelling in thi! village of l.'en- 
 frew."— Held, description insiilllciciit, in th it 
 the kind of stock in trade should li-ive Imc'ii 
 mentioned. The safest coiirsi^ in tiiesi; eases, in 
 the present uncertain st;ite of tin' lavV, is for the 
 asaignee to take possession ami keeji it. ,\'iiliiit 
 V. Donndlii ,:l al, 4 (). U., C. 1'. D. 440. 
 
 Q. and A. partners, heing indelited in a sum 
 of .'i$l,.').'il.l!li, g.ive a ch.iltel mortgage on their 
 stock in trade to tne creditor to secure i;i2,4(H) ; 
 it liriiig verli.illy agreed that the creditor would 
 make further advances to the extent ■' .'JtSOO ; and 
 (). and A. sulisei|Uently made a voluntary as- 
 signment for the lienelit of their creditors, after 
 which the morlgagiie si i/edtlie property included 
 in th(! mortgage, and sold tlu! same, undertaking 
 to hold the proceeda suliject to the order of tini 
 court, whereupon a creditor, whose claim exist rd 
 at the date of the mortg.'ige, though he li.'td not 
 recovered JMilgmeiit, lirouglit the |iresent action 
 on lieh.ilf of all the creditors of (J. ami A. to 
 h.'ive the mortgage declared void, and the pro- 
 ceeds jnid to till! assignee : -Held, that the mort- 
 gage was void, under 1!. S. (). i!. I H», for not 
 I staling on its face the triii- consideration. /'i/;7.v.< 
 I v. .SV. <!,„rii''rl III., •_' <►. 1!. ("hy. \). :H'2. This 
 ' case has lieen carried to appeal. 
 
 I Where two mortgagees, the defendants in this 
 j action, todk .'i eii.ittel mortgage to themselves, to 
 1 secure certain moneys, having at the lime kninv- 
 Ipilge of a lire existing delit from tiii! moitg.igor 
 to T., ami of a prior, hut unrenewed eliatlel 
 mortgage to '!', to secure the same : Held, that 
 siieii cundiict did not amount to mala lides, and 
 T. 's unreiieweil mortgage was void as against 
 them under I!. S. (). c. ll'.t. 7VfA// v. <'r<ul,, 4 
 (). i;. Cliy. I), (illi;. 
 
 Held, also that tlii! fact that as to ]iart of the 
 consideration for their mortgage the defendants 
 had not 'jiade an actual advance, Imt were merely 
 li.ilile on promissory notes, did not inv.ilidato 
 the mortgage, K.S. ((. c. II!) not nipiiring as 
 does till! eorresponding I'lnglish .Act, tiiit tlie 
 eoiisider.'ition should lie truly expresseil, /h. 
 
 See .Udi-Jii' 1 1 III, V. Hunter, 'J (). K. 14'.), p. !)'J. 
 
 III. CoNSIIlKKATION AM) HoN.V FlIlKS. 
 
 A mortgage to seizure the pl.-iiiitilV as endorser 
 of notes not p.iyalile within .i year : —Held in- 
 valid. Miiif V. Tliv Svcnrilij Lnnn and Siiriinj.'t 
 Co., 45 <^ i{. 10(i. 
 
 The mortgage shewed the delit in the proviso 
 .'la only liecoming due and payahle at a future 
 day, Imt the consideration was stated to he money 
 acknowledged to lie paiil for the transfer of tlu! 
 property, and the evidence shewed it w.is given 
 tit secure an overdue delit:- Held, th.it the 
 mortgage could lie upiield, regaiiliiig it as givtii 
 for a present delit to lie jiaid at ,i future day. 
 J'arliiijicr v. Mclhjiiail, 4.j (I 15. tX',. 
 
 The coiiHideration in the mortgage was stated 
 as $1,148 ; hut it apjicired in evid-Miee that the 
 amount actually owing was only .*!|,().'1().,S0. The 
 learned judge at the trial nonsuited the plaintill', 
 on the ground that the consideration was imt 
 truly stated, and that the mortgage w;is there- 
 fore void as against the defeiiilant, an execution 
 creditor :-- Held (.\rmour, .1., dissenting), tli.it 
 the nonsuit was wrong, for the erroneous state- 
 ment of the consideration did not avoid tlic 
 mortgage as a matter of law, but was a circum- 
 stance for the jury to consider when deciding 
 the issue of fraud I'r no fraud. Jliiiiiiltun v. 
 Harrison, 46 {), .\i. 127. 
 
 IV. l!r(iiiTSANii Li\iiii.iiii;s(iF.\li)i!rii\(j(ii( and 
 
 .MoKTIIAIlKI'; AMI TIlilSI'. ll.M.MINi; rM)|;il 
 
 ■rii(;M. 
 
 Held, allirming the decision of the ('ounty 
 Court, r.urton, .1. A., di.ss., th.it tiie assignee of 
 an insolvent mortg.igor can, for tlu! beuelit of 
 creditors impeach a eiiattel niortg.ige for noii- 
 coni|ilianee with the Chattel .Mortgage Act. ViV 
 liuirill, (in liisolviiit, r> A. U. Ii0(i. 
 
 Ill trover for goods iig.iiiist an assignee in iii- 
 siilveucy : - Held, following the List ease that 
 the assignee m;iy object to tlie .•ibsenee ol a bill 
 of sale on an alleged sale by the insolvent, just 
 as an execution creditor or subseipii'iit purehaser 
 for value may do. Siuin- v. Sniilli, 4.") (^. H. 
 I'lC. 
 
 The plaintilFgave a chattel mortgage to H. to 
 Secure certain money, with a proviso enabling the 
 mortgagee to t.ike ])ossession, .'ind sell in c.asi' the 
 goods should be taken in exeeution by any credi- 
 tor of tile mortg.agor. These gonds were so taken 
 and the defendant, to whom the mortgage had 
 been assigned by 11., took possiission and sold 
 under it, for which the ]iliintiir sued in this 
 action, alleging that H. the mortg.igee, verb.iily 
 agreed to jtay these executions which were made 
 part of the money secuicd : Held, th;it defen- 
 dant as assignee, touk .subject to such .agreement 
 (which did not vary the tcniia of the mortgage). 
 
 
 ft 
 
 «... 
 
 
m 
 
 TUM.S ol' SALK AND CI I ATT KT. MOI!T(iA(IKH. 
 
 93 
 
 ic jiLuiitll 
 
 Wjs lliiii liiri' iiii[prii|Milv iiniiMiiitiil. .]liir/iii v. 
 l!,iinii<iii, 4.'i (/. H. i;o,"»." 
 
 A tliattcl iii(iitj.';i^'i' wliifli Iiiim cxjiiri'il )py 
 I'llliixiMii (it tiiiii' iiiiilcr K. S. <). c. Il!l, H. 11), 
 mill li.iH ii'il Ipcim riiicwiil or rililcd, <TascH to Ik' 
 viilid iiM :i;.'airi.st all licilitnr.s ol tlic iiiuitnagor ' 
 tlicii existing ; ainl a Kali* on ilclault in ^'ooil 
 faitli mailf |py till' incprt;.'a;;<M', witli tlic conm'nt 
 (if till' llliirti,'a;,'or. tliolll^ll ;,'ooi| lis lictwcrli tllf | 
 )i,iitics to till' iiiPirtL.Mi;i', only iiasscs to tlic \)\\y- 
 chaser a lilh' siiliirct to tlic ri;,'lits of any criMli 
 tors wild may take stcpH to follow llic pioils. i 
 lli'niaiks npon f lie policy of the Chattel Mort- i 
 piL,''^ Act. liiirbr y. Licion, 1 (». I!., Chy. I». | 
 J 14. ■ j 
 
 The iplaiiitiir, eariyiii:; on tlic liiisiness of a 
 ilni).'i.'ist, nioitj;a;,'ei| liis [stock in trailc to the 
 (Ict.iiilant ; the instrnniciit liy which it was 
 cllictcil, sti|iil!atiii;.' that the ilcfcmlant shinilil | 
 take iiosHCMsjipn of the stipck ami |ircmiscs, to' 
 liolil for four montlis in order to secure ri'-pay- i 
 nient o' money adv.mced, and power was ^iven ' 
 to the nioiti.'iL,'cc to aihl new st'ick so as to keep 
 lip I lie liiisiiiess. |)efau!t was niaile ill ]iayMicnt, 
 and there iftera lar^c aiiionnt of stock was added, 
 Home of the money liein;; e.\|ieiidcd liy the defeii- 
 daiil with the assent of the jilaiiitill'; other money 
 liciii'^i part of th(! protits of thu liusiness was 
 thus reinvested in new stock ; Monii; of the old 
 Ktock rcmainiii'.^ in spocic. The matter was re- 
 ferred to the master at iJellcville, to take the 
 iiccounts of the dcalin;,'s lietween the ]iarties. 
 Ill lore the iiiasfcr made his report, the pi liiitilJ' 
 n]iplied on petition for the appointment of a ru- 
 ceiver, on the i.;round that the niort;;aL;e had 
 liecn ]iaid in full; — Held, (1) that as the new 
 stink lie|oui;ed to the iiiorti,'a!,'ee himself and the 
 ]ilaiiitil1' could therefore have no claim u|ioii it, 
 and as the master had not yet found which ]iarty 
 was indelited to the other, his tindin^' would not 
 lie anticipated liy the appointment of a. receiver ; 
 CJl that althiinnh tin; defeinlaiit's right on de- 
 fault, was to sell the original stock (Ui hloc after 
 notice, still the defendant was at lihcrty to add 
 further capital and stock to the liusiness, liut not 
 to the p'ejudiue of tile mort},'af;or so as to iiu- 
 ]irove him out of his estate ; and so long as the 
 )ilaiiitill chose to allow the Imsiness to go on 
 under the defendant's eontriil, lie had the right 
 HO to conduct it, sulijeet to lieing called on to 
 account. /'().</(/• V. Miinliii, '2'.) ("hy. U5. 
 
 The plaintiir, the lioldi^r of a chattel mortgage 
 with !i covenant for payment, was not schuduied 
 in |priiceedings in insolvency under the Act of 
 lS7."i, liiit he was aware of the proceedings, uiid 
 the insolvent <ilitaincd a final discharge :^llcld, 
 th.it the delit under tjiu chattel inortg.agu was 
 iKit cxtinguisliud. Ikotjix. Samuel, 2!) Chy. \Wt. 
 
 Senilile, jicr Wilson, V. J., that the purchaser 
 from the mortgagee under the jmwerof sale con- 
 tiiined in the mortgage, leaving the mortgagor 
 in possession, is protected so long as the mort- 
 gage under which he Itought has the protection 
 given it liy registration : hut when the term of 
 the mortgage ex]iires the iiurchaser is no longer 
 ]irotected, unless he takes actual possession, or 
 jirocures and registers a hill of sale from the 
 mortgagee. Viirlkli: v. Tail, 32 0. 1*. 43. 
 
 An interjileader order hail been made, which 
 <lirected the sheriflf to pay over to the claimants 
 
 SlIMMI and interest, the proceeds of the sale of 
 
 g Is claimed liy them under a chattel mortgage, 
 
 which was not impe.acheii. The oidir directed 
 an issue as to .a secoiiil chattel mortg.ige held hy 
 the claimants, the execution creditoiH contending 
 that it was fraudulent. A, it <'o. olitaiiied judg- 
 ment in a division court against the execution 
 delitors after the date of thtr order, and moved 
 to vjiry it liy directing that the amount of their 
 execution should lie retained hy the sherill'out 
 of the .'j<l,ttOO, until g.irnishee |iroceediiigs ag.iinst 
 the dilitiir in the division court, in uhicli the 
 .HhcrilV was g.irnishee, should lii^ dispo.sed of : — 
 Held, that the moneys in the shcrill's hands he- 
 longed to the claimants, the chattel mortgagees, 
 as on a sale of the inortg.igcd chattels liy theiil 
 as inortg.igees : that there lieing no want of 'lona 
 lilies in tlie miirti,'.ige, no want of f irinalities in 
 it would make it inv.alid as lietween the parties 
 to it, so as to entitle the delitor to cl.iini the 
 money secured liy it, or to entitle \. & Co. to 
 claim it under their execution, Mitr/if it at. v. 
 J/niilf-r, r. R. 149.— Cameron. 
 
 The ]ilaiiitilT was mortgagee of certain goods 
 of one I'', (i. , a tenant of his father, the defen- 
 d.int C <!. The landlord on the 17th Feliruary, 
 1HS3, went to the house of the tenant, and de- 
 clared that he seized everything for rent, lie 
 toiichi'd nothiii'.,' and made no inventory. On 
 L'tth Keliruary he went a^aiii and told the ten- 
 ant's wife that the property h.ail lieeii seized for 
 rent and to let no one t.ikc anything aw.iy, when 
 she promised to do her host for him. (hi .'ith .March 
 the iilaintill', he.iring that the goods were goin..; 
 to he seized for rent, took possession under his 
 mortgage and removed the goods. A liiilill' went 
 the next day for taxes in arrear, and the land- 
 lord gave him a distress warrant to take goods 
 for rent. The hailitl' then took the goods which 
 had lieeii removed, and on the tenants waiving 
 an inventory, adviu-tising, kc, sold them within 
 two days to a nei>hew of the landlord : -(.Unere, 
 whether a tenant can waive all statntalile fur- 
 nialities as to inventory, itc, as regards the mort- 
 gagee. W/ilmsHI V. Uill'iird ft ,il., 3 (). U., t^. H. 
 I).' 1. 
 
 The chattel mortg.age contained no re-demise 
 clause, lint did contain a clause that the mort- 
 gagee might take the goods if the niortgago'- 
 attempted to sell, dispo.se of, or part with the 
 possession of the goods : — Held, that the mortga- 
 gee liad the right under the circumstances, to 
 take the goods, although default iu payment had 
 not been made. Jb. 
 
 Wlicre a sherifF seizes goods nnder writs of 
 execution, and a niortg.agee lays claim to them 
 under a chattel mortg.age, the fact that he suh- 
 seiiueiitly directs the sheritr to sell under the 
 executions, does not necessarily amount to a 
 waiver of his claim under the mortgage. AVy/.i- 
 inirt/i V. Miridin Sllivr Plutiiiij Co., 3 O. 11., 
 Chy. 1). 413. 
 
 H., in consideration of his relieving C. from 
 executions against him, procured from O. and 
 his wife, the plaintiff, a promissory note for the 
 amount thereof, and also a chattel mortgage on 
 the goods of both as collateral security. He dis- 
 counted the note at a bank, and with the pro- 
 ceeds paid off the executions. Afterwards, but 
 before the maturity of the note, and while it was 
 in the bank's hands, claiming that there was a 
 
!»3 
 
 P.ltOKKR. 
 
 94 
 
 lin.idi <if tlic iiioiti.';iL'i' liy tlif miHivnl of ••cr ; A ir.iiiiiii|p;il rorporntion ?nny Knviit ii liiiinishy 
 
 (ni,', ,, Ih wliicli wiiM iliMiniivi'd, luiil it liiHiiij.' to way'df In.iii tn si iiiiiiiuf.irtmiiiL,' ("'luiKiiiy an tlic 
 
 alli(W tlif iiiortj<:ii,'ipi-i til iiilcciii, 111' tui.k tin- wiinl •' lioinis " in tlir Miiniri|i,il Ait, ilnrH iint 
 'imiiIh t Inn iinilir.aiiil snl.l thrill, f<illiiij,' j,'i>i"I^, iii'itsm irily iiiiporta t!il'l. Hi'v Sm/lisli .tmn-ini.i 
 'fViPiiil till' ii'n"'iii' ri'i|iiiii'l til "ati^fy till' iiinrt- Jiir, xfun'iil Co. v. 'I'lir I 'i,rjioriitoiii of' /In- V'dliiiji 
 Mj^c, iiu'liiiliii:^ till' lilaiiititl'H iiun j,'iiiiiU tii tlir '//" Eh>ra, ti A. It. (J'-'.S. 
 
 I'.orNHAItV. 
 
 I. l>i;srl:ll'Tliiv UK I.VNii — S',-, |)i:i.;|). 
 
 II. l'i)SSi:ssIllN IMli;i( MlSI'AKK IN niiuvD- 
 AIIIK.S .S'm I,I.MIT\IIiiN UK Arrinss .\SIi 
 SlIT.s. 
 
 III. Ilv W Vir.U -.SVr W\TKU AMI NVaTKH 
 
 ('(IlliSI.S. 
 
 aiiMiiiiil III .':fKI7."i<'. Ill ;iii ai'timi liy tin' [ilaiii- 
 till III ii iDVi'i' till' il:iiii;i>,'i' tlii'ii'liy Hust.iitii'il, tiio 
 jiiiy jj.'ivi' S'.'7,") ; lli'lil, that tin' jil.iiiititl' wan' 
 I'lititinl til ii'i'iiM'i'. I. Till' iiiiti' lii'iiiL,' til'' ])iiii- 
 ciii;il Hi'iiiiity, ami the i;h.itt«'l iiiiirtL;aH<' mt'irly 
 oiillatiral, M. rmihl not (iiiiri I'll on tin' iiinrtuif,'!' 
 whili' thi' null' wa.s thiis oiitst.iinlin^'. '-'. The 
 wiU' was illrj;al liy rc-iHnii of tin' nt'iisal of rr- 
 (K'liilitiiiii. 'X Mvi'ii if till' sail' was inri'tly iriv- i 
 jjiilar ill Milling' fur a siiiipnsi'il ln'caili, thr |ilaiii- 
 
 till' was t'litith'il to r vit tin' v.iliii' of tlm 
 
 cxci'.s.s of till' j^'iimls solil, ami otlirl' il.iliiau'fs lie 
 yoiiil iioiniiial lor liiT intiTi'sl in tin- ;,'ooil.s ; ami ^ 
 tin,' vrrilii't w.iM Inhi not rxi'i'ssivc. A rcinoval , 
 of j^iMiils to ju-'tify a si'i/iiri' iimliT a rliatltl 
 innrtLia^i' must Kr liy tin' iiiorti,'ii,'iir.s or mi their 
 behalf, ami not a wronufiil rt'iiioval hv othcrn. 
 <\„-hmi,r\. linii.lnrii iiL.Wi). !!.,('. I'. I». Hi-'. 
 
 Si'i' also Kiii'i V. /^///«"'/^ •JiK'liy. 113; ll<>l>iiiH i.iiimM>v 
 
 V. Chirl: it „!., I."i <,>. I!, .'ti;--' ; /Irnin, v. S,r ,/, 7 1.1.1 ni',l> ^ . 
 
 A. li. 7-">. lAr I'll. TioNs roi! I'aki.iami'.ni — .SVc 1'aui.ia- 
 
 MKNT. 
 
 V. Willi MAY ISIITACII. ' 
 
 hiilius liy-la\\s piociinil liy Inilnry. Sia; //( 
 lli'lil, iimli'f till! (■ii'i'iinistann'M statnl in the ,., /,,„„/,/„„ ,„„/ 77,,. Arlinn- .lii,i.-h',„ /.'. \V . C,,. 
 report of this I'.'ise, that neither the assignnieiit „„,/ riii (•„ri>nriilln,i »/' //f Toim.i/ii/i »/ Art/iKi; 
 fill' tin; lii'lielit of ereilitors, nor the sale o! the .)-,() j; .[- 
 guilds ilisi ntilleil the piaintiH' to iiii|ieacli the , 
 iniirt>,'aL'i', ami ho was enlitleil to the relief 
 il.iiineil. I'lirbny. Sl.dniriiiit III., '2(>. ]{., ( 'hy. 
 I». :t4--' 
 
 lUIKACII or fiJOMlSHoK MAIMIIAOE. 
 
 .S'li III SUA Ml AMI W'iKi;. 
 
 <uo ti'njii,, V. Mrh'rir.;. ,1 ».-■., 11'. (,». I!. !):{, p. 
 
 s,s. 
 
 r.oAltn ol" Al'DIT. 
 
 Sii ('oisrv A'l'TiiusKY. 
 
 HOAUI)|N(i HOU.SK. 
 
 I'pon the eviilenee in this 'e ise the (^oiiiity 
 t'oiiit juilge ileeiileil that the ilel'emlant was not 
 a liomling hoiist; keeper within l{. S. (). o. 147. 
 The Court of Appe.il imiiuateil that it woiiM 
 iiavo (leoiileil otlierwi.so. Sue Idrt v. AfcKi-own, 
 7 A. II. ry2\. 
 
 V,\i\\H'.K. 
 
 Sir ISTI'-UNArillNAI, hllllKii: Co.MI'ANY. 
 
 I!i:iTI.><II NOUTH AMKIMCA ACT, 1807. 
 .V(< CiiNsTrriTiiiNAi, Law. 
 
 noxi). 
 
 i. I'autuulau Bonus. 
 
 1. A}))ieal—Sfe Cm HT of Ai'peai,— Privy 
 Council— Sr Pit KMK Coiiir. 
 
 'A. Dchcntureii — Sn' Dkhkntlisks. 
 
 4. Jiailwni/~Si-i'. Railway.s and Railway 
 Comi'aniks. 
 
 BONUS. 
 
 To Railways- 
 
 ■See Railways and Railway 
 
 Co.Ml'ANIES, 
 
 BHOKKIt. 
 
 I Ai'tion ai;ainst the ilefemlaiitH, stoek-broker.H 
 at Toronto, tor lin.'aeli of iliity in not iiuyiii;; cer- 
 tain stoek for the pliintitl'. On "J.lth Mareh, the 
 
 I pl;iintill' l.y teli's,'raph instriieteil defemlants to 
 Imy the stock at 1 14 or less, wliieh defeiidaiita 
 l>y letter in reply .'H^reod to do, Imt said that the 
 telegram w.is receiveil too late to elialile tlieui to 
 aet on it that (l;vy. On Monday following, the 
 ■J7tli, defendants telegraphed plaintill' that they 
 had cancelled his order in the ineantiine, as there 
 were unfavonralile rumours al)out the stook, and 
 that they wore writing. The plaintill' recuived 
 this aliout noon the same day, but did not answer 
 it, waiting for the letter, which ho received about 
 five o clock the foUowing day, the "JSth, being 
 to the same eti'ect as the telegram, and asking 
 the plaintilf to repeat the order if ho wished de- 
 fendant to buy for him. The plaintilf on the 
 receipt of the letter wrote, that from defendant's 
 telegram he ex|)octe(l Homethiug more tangible 
 and detinito than mere general unfaivourablc im- 
 pressions and 8Uspieion for not tilling hia order, 
 and therefore waited for defendants' letter ; that 
 he had given a positive order to buy, &o. : — 
 
 g 
 t. 
 
 J- 
 
95 
 
 hUlLDINCiS. 
 
 95 
 
 JI«kl, (I) tliat the correapomlcnoo slicwi'd tl'.iit 
 tlie iiLiiiitilfrntilicilor UMcM.'iitccltiitlii; ilefi'iiihiiits' 
 coiiTHu of cciiiiliict in (liHiiliuyiiig ItJH iiiHtrnctiniis 
 iiiiil cxL'ii'iHiiig tlit'ir (liHori^timi ; tli.it tliu cmi- 
 Htruutioii <il the curreHpoiHluiicu wum for tliu I'ouit 
 mill iiiit for till' jury ; ('J) tli.'it at all uviiitrt no 
 ilaiii.'i^tr w.iH inovuil, iM on till' Moiiil.-iy wlicii the 
 |)l;iintill' iH'i'.iini' .'iwari' that ilrfuinlantM I. ail ilf- 
 ri'lcil 'lilt to buy, fhi; .stock was still at ll4. 
 
 SiiiU/i V. ;'..)•/«•( 1/ (//., ;w c. i*. 571. 
 
 Scio J{iff ft iii. '"• <>iiiiii it III., 40. I!. i'lTO. 
 
 Hl':i,|)|\(! CONTRACT. 
 .S'lr NVoUK AMI L.Miorn. 
 
 BIJILl)IN(J!^<KIKTIi:S. 
 
 See ('iil:l'iil!.VTli)Ns. 
 
 llclil, liiiiKrr. .S. r. <'. o. .-,;{, H. 40, ami .3(5 
 Vict. c. 1(11, ». !>, I'l'iii., that Ihi' |ilaintills, a loan 
 and Ma\iii;;« souicty, wvve i'ni|)ov. I'l'i-il to iiiaku 
 loAiia liy way of iiioit;,'a;^i' of rial rstatc to a pir- 
 Hon nit a iiitiiilirr tlu'iiol, uiiil to tiko as coliat' 
 iial Mi">urity Ihcufor thu inoiiii.^iioiy note of a 
 purfion aLso not such niciiilicr. 'I /if I'mliuld 
 Luaii Olid Siidiiijn' iSoci'ly v. Furnil, ',i\ (.'. 1'. 
 
 4.->;{. 
 
 By sec. '.\ of 'M Vict. c. ."lO, Do.n., borrowers 
 from biiihliiif^ HOI it lii'H inror|ioiate(l iiinlerC. S. 
 l. t'. e. •'>;{, thoiij;h not ni niber.s III the .society or 
 higning the rules, are niaile ttubjeet to all rules 
 in force at the time of becoming boiruw'rs, so 
 that by virtue of »ui h rules the society, on a sale 
 of lanil miller a mortgage giv'-n by such binrower 
 t<) the society oi' ilefaiilt iiefore the expiiatioii of 
 the term lixeil 1 the mort'.'agr, iin? not restrii'teil 
 to the , 'uount originally ailvaiiceil with the thin 
 jiccruiil interest, Imt an eiititleii in aililitimi 
 (hereto to iliscouiit the futiire reiiaynientsat such 
 rate of interest, i.inl at such terms as the 'lireu- 
 tore ileteri.iine. Tlie costs of sale anil coiiiniis- 
 t-ion thereon were h'.lil to lie [Uopi'ily cliirgealile, 
 but not a eliar';e f<.r insuianie ami sur< ey, or the 
 I'tists of II'.. action on the covenant, a.- imt coming 
 wilLin the rules, ilricn v. lUuride it Lnai (.'v., 
 M C. I'. .".,4. 
 
 A luortgage was mailo, {lurHuant to 'J Viot. c. 
 '.)0, to the iiresiik'iit anil treasiirti- of a buililin^' 
 society, their sueceswors ami assigns, in trust for 
 the society. The society having siibsciiuently 
 j^xurciseil the power of sale, thi! then pnsiileiit 
 a;i(l treasurer, smeessors of the origi'ial mort 
 gagees, couveyeil to the |michascr by a ileeil 
 u»iil' •■ seal not 111 iiig the society's seal. The 
 purchaser sohl to (1., who objiclnl to the title ; 
 — Ilelil, that the lauils were eoiiveyeil in fee 
 simple to the plcsiiliiit ami treasurer by ilie 
 inoitgage, ami that tln.-e olliecis for the tini" 
 being liail till' power to lonvcy in fee, th.it the 
 power was iluly exelciseil by them, aiel (i. was 
 lioiiml to acecjit the title. /.'/ /inj/ilnirt and 
 (lagniir, '-".» Chy. 418. 
 
 A circular was i»Mieil, with the knowleilge of 
 f.lio (Ureitors of the >lefenilafits' eompauN . wliiel', 
 amungst otlici things, -ct out that " Ioaus can 
 
 be jiaiil at any „. a ami a ilischarge of the imirt- 
 
 gage will be given, the rule of the society being, 
 
 when this privilege is taken advantage of, to 
 
 charge three nioiiths' additional intere!<^ at the 
 
 same rate at which the loan was mad'. ." The 
 
 plaintiirsaw this circular exposed in theoliieeof 
 
 an appraiser of the company through ,vhoni the 
 
 loan was eirected, and was thereby induced to 
 
 mortgage his land for twenty years, the loan ti. 
 
 be lepayable on the instalment plan : — Ililil, 
 
 (allirming the ilecree of the court below) that 
 
 the plaintiir could insist on redeeming his mort' 
 
 gage according to the terms set forth ii! the cir- 
 
 , eiihir, such right Iteing sustainable either on the 
 
 I footing of the contract evidenced by the mort- 
 
 ' gage, the ell'ect of which was to incorporate the 
 
 j rules of the society, while the jvidence shewcil 
 
 I that what was put forward '■ Uw circular as tlu 
 
 I rule of the Society, was oi' ,,f the rules referrei! 
 
 to in the mortgage ; or on .ne footing of u collat 
 
 eral and independent: contract, //udyiiin v. Tin 
 
 Oidiirio Liiiiii and J >i In nl ii re Co., 7 A. U. 1202. 
 
 Held, also, that, although the mortgage recited 
 that the mortgagor was a member of the society, 
 having subscribed for eighty-eight shares ol the 
 stock, which the society agreed to pay him in 
 adv.'ince on receiving that security tlieiefor, Ac., 
 yet without express sti|iulation to that cllcct, 
 the mortgagor could not be allected bj- nili'." 
 made s\ibsi'(|ii.ntly to the execution of the ni'irt 
 gage, even if he could iimler the system under 
 \.liieh the operations of tin; sociv'ty were cairii il 
 on be eonsiili'i'eii a nieinlicr wlcii he had reei ivnl 
 the amount ot his shares ; b'lt that at all evints 
 his liability could not !>e extended beyond the 
 clear woi. Is of hiscontiact, which did not poii>t 
 to any but the then i.'xisting rules. Jli. 
 
 !ii:iiJ>iN(;s. 
 
 I. I'Aitrv Walls, !)(J. 
 
 II. I,\ri:i;Ai. Si I'I'dim' .V,/ 
 foitr. 
 
 I,Ari:i:\i. Si !• 
 
 I. I'Aitrv Wal i. 
 
 Where the defendant raised the height if .1 
 party wall beyoin! that of the buihling of tli. 
 plaintill, the adjoining owner, with the lattci < 
 consent, and siilisei|uently opened a window 
 through the said wall, so raised, so as toovcilook 
 the pl.'iintill 's picini-,' s ; lldd, tlut liy ))ierciiig 
 tie. iiimlow delemlant h id distinctly given iiotici' 
 liiat he ceased to regard the wall as.i party vuill; 
 that it was an un.iuthori/cd user of the Jiaity 
 wall ; and tin pl.iintill' was entitled to an iii 
 junction to restrain the furth'jr contitiuan.e of 
 such window. .Si,i;,iili v. .Stralfunl, 1 C». !{.,( hy. 
 
 I). :t;t.'>. 
 
 On the •Jlith September, 1877, S, contracted to 
 erect a proper and leg.il building for \\. on his 
 (W.'s) 1,'inil, in the city of St.. John. Two days 
 after, a by law of t!ie city of St. .John, under tlie 
 ,\et of the legislature, 41 S'ict. e. ti, " 'I'lic St. 
 .I'ih;« Iluililing .Act, |.S77," w.is passed, prohibit- 
 iiig the I lection of buildings such as the one con- 
 tiaeted for, and decl.iiing them to be nuisances. 
 I'.y his coiitra-'t, W, n served the right to alter 
 or modiiy the i>lans and speeilications, and to 
 make any de .lion in the construction, detail 
 
'•: 
 
 CANADA CKNTUAL RAILWAY COMPANY, 
 
 98 
 
 or cxucutitia iii tUo work witliout jivoiiliiij; tliu 
 ciintnii't. &c. I5y the (.'oiitnict it w;i.s also ilu- 
 cliirtd tli:it \V. liiul oiigiigiMl |{. asBUpuiiiittiulfiit 
 of tlic III I'tidii liis <luty liiiiig to oiifoioi; tliu 
 foiiilitioiiH of thu coiitiiiiit, fiinii.^li <lr.i« inj^'x, iVu., 
 iiiaku tstiiiiatcH of tlii; iiinoiiiit iluc, aii'l issue 
 ccrtiliiMtf. W'liilc W.'h Imililiii;,' was in ooiirsu 
 of LTi'ct.oii, till' ciiitn- wall, having liciii Imilt oil 
 an insatliciiiit fimmlatioii, fell, I'arryiiig witii it 
 the |ia»'*y wall coiimion to \V. ami McM., his 
 iifif,.! loiir. Oil an aciioii l>y .Mc>M. against \V. 
 ami S. to rri-over daiiiagi'S for tin' injury thus 
 Hustaiin'il, thf jury fouml a vunlict for tiit- plaiii- 
 titi' for giMiural (lainagus, iJ.S, ".».')2, ami .sl.-STo for 
 1()88 of runt. This latter amount was fouml 
 supaiati'ly, in onhr that the uoni t might rLchicu 
 it, if not rtuoviialilf. On motion to the Smuvimi 
 Court of New lirunswiek for ii lonsuit or n<w 
 trial, the verdict wasalloweil t< . t 'otl for SS.il")'.', 
 th(3 amount of the general ilainagi s fouml hy ihi^ 
 jury. ( Ml ajipeal to the Su|ireme < 'oiirt ami eross- 
 apjieal hy rrs[iomhnt to have venliet stand for 
 the full a II. Mint awarded liy tln^ jury : llild, 
 ((iwynne, .1., dissenting) that at the time of the 
 injury ecjinplaii ed of, the eontraet for the eii:e- 
 tioii of W.'s liuilding luing in eipntravention 
 of the provisions of a valid hyd iw ol the city of 
 >t. .lohn, the defi ndaiit W , his eontractors and 
 his agent (S.) wi^re all eipially n s|Minsilile imtlie 
 eiiiiseiinenees ol the iiii|ii'<>|ier liiiiidiiig of the 
 ilii'gal uall whiili eaiised tin' ilijuiy to M.M. 
 eharged in tile declaration. 'I'liat the jury, in the 
 ■•ihsem.'e <•'" any evideiicu to the eoiitr.iry, enuld 
 .nlopt the aelual loss of rent as a f.iir <'ril>'i i.m liy 
 wiiieli to (!-l,ili!isli the aetu.il ainiMint of the 
 4lainage sustiliie.j, and thelifori! the \eidi(t 
 slidiild stand for tile full .imnunt .laiiiied and 
 awarded. I'er ( iwynne, .1., dissenting, that W . 
 was not, li_\ the lerins of the I'lUiti.ut, li.iMe lur 
 the injury, and, even if the liydaw did ni.du' tlie 
 hiiililiii- a nuis.'im'e, tin |ilainlill'eoidd not, under 
 the iile.iding.-' in the eiise, li.ive the lielietit i^f it. 
 Wiilk.r V. j/.'.l//7/.t/(, (i ,S. C. K. --'41. 
 
 It. (the .'i|ipellaiit) brought an ai tioii ag.iiiiHt 
 II. (the respondent) for having ereeteil a lui''li 
 w.ill over .ami up in the iippi r part of the snutli 
 wall or eorniee of .ippillant's store, piereeil 
 IliiloH, &e. II. ple.tdel, inter ali.'i, speejal leave 
 and lieeiise, and tli.it he luul done .so for a v.illi 
 alile eoiiMdeiatioii |i.iid !iy i'ini, and an e<|ui. 
 t.il'le I'ejnimli'l' alleging th:it | laintill ,ilid tln'.-r 
 tlii'High \t hoiii he el.iinieil iiad noliee of the 
 ilel. ndanl's title to this easement .it the time 
 tiny ol'Uiiiied their ennveyaneis. In |,S.")!( one 
 ('., who then owned IJ.'h pv-operty, granti'd hy 
 <lii d to M. the jiiivilege of pn re lug the siiiith 
 Wall, e irryiiig his sto\epi|ie into the llui s, .-unl 
 en 'ting .'i wall aliove the south w.ill of the 
 liuil ling to form at th.t height the north w.di 
 of rehpiindeiit's liiiilding, wliieli was higher than 
 li's. I!, piireli.'tsed in IHT'J the (iroperty fidin the 
 Hank of Nova .Seoti.'i., who got it from om' I''., 
 towhoinC. Iiad eoiivityi d it all tinse eoiivey- 
 aiie s li(in.j for valu.dih^ uoiisider.itioii. 'I'liu 
 died fiuiii ('. to II. w.as not reeiuded until \S~\, 
 ami li's s. lieitor, in seiuehing the title, did iint 
 s'e.iieh under ( "s miine after tin' registry nf thu 
 deed hy wlijeh the title p.issed out of ( '. in I.SIi'J, 
 and did not therefore olisi rve the ileed ei'i atilig 
 the eiiMeim lit ill favour nf plaintiir There was 
 evidence, w hen attention was <'alli d to it, tli.it 
 K-'poiidciit had no separate wall, .and the north- 
 Mil wall above appellant's Imijiling coulil be 
 
 seen : — IleM, that the continuance of illegal 
 burdens on K's property since the fee had been 
 accjuired by him, were, in law, fresh and dis- 
 tinct trespasses against him, for which he was 
 entitled to recover claniagcs, unless he wat' 
 bouml by the liceiisi' or gr.mt of C. Ji'ukx v. 
 Huntu; 7 S. C. K. iJS'J. 
 
 ISY-LAW.-;. 
 
 I. Or ('(iin'i)U.\rio.s,s (ir.si.it.M.i.Y- s'k f'oR- 
 rou.\rriiNs. 
 
 II. Ok MfMcir.M. ('(lui'oit.vrio.ss Stf Mf.vi 
 
 iir-vi. (.'oiifon.vrio.N.s— W.vv. 
 
 III. Ok Siiiooi. I!ii.\i;iis -.SVc I'lisr.K Si iiooi.s. 
 
 Held, that the validity of a by-law ni.iy be 
 (|iiestioiied on a motion to ipiasli the conviction 
 made under it. Ili'j'imi v. Cii/l hi rt, 4.') *), I!, lit. 
 
 An applicant is not preelmicd from moving 
 against a by law by faaoii of his having ex 
 pressed an opinion in its favour bcioic its pass 
 age. //( fi I'lih lUiil till 'Jurjinriuiuit vj t/if Tuivn 
 o'luill, 4ti <,•. 15. 'Jll. 
 
 I'y-l.iw held bad on its face, where it was 
 pi;. inly imt passed in the public interest but for 
 tl'.e beiietit of a particul.ir cla.is or individual. 
 /'(. See, also. In rr Murlnii ninl lliv I '"r/mi'iilioii 
 
 of'ihr Cthj „f SI. Tiit,ii>'iy, c. A. !!. :vj:i. 
 
 By-laws must bo reasonably clear ami r.n- 
 ei|iii\ocal ill lliiir language in onler to v.iry or 
 alter the I'oiiinion law. Crowe v. Stu /iff tl ill.. 
 Hi Q. IJ. ". 
 
 The ri I til puss by laws necessarily imports 
 a right to repcil tiie s.inie, but luis cannot be 
 iloiie to the prejudice of a [tarty who has ob 
 taiiiid rights under. •■•e* bylaws, uitho.it his 
 assent. See ll'/'i;//,' \. ' ■/•■ Jnciir^iiiiilln' .Si/noil 
 III' I hi- D'uHxm vj' I'liii-uii, "JDChy. ;14», p. lO'J. 
 
 C'AIJ.S 
 
 Meld, th.it i;. S. (>. c. 174, ii. ll.-), whiih pro- 
 vidistli.it tile bo. I 111 of eonimissioners of [lolici' 
 shall in cities legidate and liccii.se t' , uwiiers of 
 c.ibs. iVc, used for hire, does not .lUtllori/e tlu 
 impositiiiii of a license fee iipi .i the driver ol 
 sie Ii vehicle; nor does V2. \'ict. C. .'ll, H. 'J.S, which 
 emiMiwtis the board to license any trade, calling, 
 business or prol'ession, or the person employed 
 ill such trade, &e., give power over persoiis not 
 within its jiirisilictiiiii liefore so as to authorize 
 the imposition of such a license fee. Uiijina v. 
 /.'/-nw, I O. i;., {I I!. 1>. -UK). 
 
 CALLS. 
 
 On S-mck— .s'<i t'oiu'ou.vrioss. 
 
 :s: 
 
 
 CANADA CKNTi;.\L ItAILWAV CoM- 
 I 'A NY. 
 
 Sx ILVII.WAYS .VNI) ll.VII.W.VV COMPANIES 
 
It 'J 
 
 CAPIAS. 
 
 100 
 
 CANADA rr.MI'KI.'ANCK ' < T, ISTS. 
 
 lli'M, tli'tt an liilcirtM.ition wliirii incliiiU-K tin 
 llircc (listuii't cil'cnrcs III kiT|iiiij,' fur saif, sflliiig, 
 .111(1 li.irfiriii;.', iiitoxifatiii;,' liiiiiuix, wliicli art; 
 |ir<iliitiitiil liy >«■'■■ '.Ml of tin- < 'aiiaila 'rtiiiinraiicu 
 Ai't, 1^7^, (•iiiitravii.is :(•_' ;i;{ \iil. 0. .'51, s. '2tt, 
 vlijili proviili'.-i tliitt cMiy iiiliiriiiatiiui .MliiJl Itu 
 liir mil' iillriH-c iiiily ; l>nt lli'lil, iliat miii'Ii in 
 tiiriiiatiiiii may lir aiiuinlril )iy Mtrikiii^ mit all 
 
 till; iiiriliccs i'll;l|';.'i'(| ixi'l |lt iilHi ; allil tll.lf. SUcIl 
 an anii'iiillnrnt may lii' niaili.' altrr tlir ca.sr Iiih 
 liiin rinsed an<l ir.sLTViii tnr iKcisidii. Ui',/iiiii 
 V. IhiiiKii, I l». l;., (,i. li. It. 4t.j. 
 
 'i'lu' ilc'liinl.int swiiiv that liriliij nut xA\ .'inyin 
 toxiratinL' lii|niii'iintlirilay i li.ii'i,'nl. 'riicnM'i]iii'nt 
 
 it' siiiiir lii|iiiii' siili! nil that il.'iy naini'il it in his 
 ••viili'iicc Inr till' ilitVii'M', Imt tlu'p' was nn rvi- 
 ilclii'i' that it « IS :ui infn\ic.itii)L,' ilrinU, the cvi 
 
 icni'c ti thi' crnwii nniy shewing; that it rcsi'in- 
 IiIimI int ..Miatiiii,' lii|iinr : llrlil, that tliiTi- Wii.<i 
 nil re i.H"ialiii' I'viiji'in'i' on whiili tn fnnml a I'lm- 
 vjotinn fnr sclliii;^ intnxii-.itiii:^ liijiinr. ///. 
 
 Tliu ili'tVnii.int w.i.s ninvirtcil nf mllinj,' intnxi 
 ^•atiiiir lii|niir cnntiiiy tn the ( '.mail » 'riin|iiTan(a; 
 .\rt, I.S7S M|iiinaii inlnnn.itinn chaininL; him with 
 ki'i'iiiiiL', .srlim;,', liaitiiiiiu ami nthriwiwr nnl.iw- 
 tiilly ilis|i(isiii^' 111" lii|iiiir. lie w.i.s ailjuili,'i'il tn 
 |i,iy a lim m i<M, and .riri.'Jd I'n.sts. and in ih fault 
 'A iiaynunl .and nf NUtlicii'nl iliHtri'.ss, In- w.i.s 
 adjudf^cd tn III' imiirisnnrd in tin' commiin ^anl 
 at hard lahnnr. .\ Hi'cnnd rrrnrd nf tin' cnnvio- 
 tinn, licaiih;; thr samr il;itr a.H thr tirst, w;is liloil, 
 dill'iTinv in snnir niinnr jinints finin tin; tii>t, and 
 • imittin;: thr ud jinlii.itinn as tn hard lalmur, and 
 ailjnd;;ine tin' |iaynii'nt nf {<,">.'27 insts. 'I he 
 inni'i'cdniLis iiavini.' In'cn icnnivrd li\ cfitinriiri : 
 
 lltlil, th.it till' tii'Ht i'nn\ ii'tinn \v;i.s li.nl fnr want 
 'if jnrisdiclinii tn iniimst' hard lalionr, which \»aw 
 imt .lUthnii/rd liy thr .Art, ami that the xi'i'ninl 
 w.'i.s had in imt fnllnwin^ thr .'U'tniil .idjudir.itioii 
 as tn rnsts. whirh wrrr, a.s shrWil liy thr m.l^'is 
 tr.itr's ininntr, ."riri.'Jd, and imt 8r).'J7. A'.'/ii/i/ v. 
 W.iUh, •_•(». I!., l^. 11. It. I'OC. 
 
 ■'I'liu Caiiidii 'iVinjirra • Act dons nut per sc 
 m.-ike thr si'llinj,' of iiui!'i(,;itiiij,' liquor an oll'mci- : 
 
 it is only after thr f^'coinl part of tlio Art has I n 
 
 liroii^dit into fnrc liy thr |irnrrudiiif,'s indiratnl 
 for tiiiit jiiiriiosr in thr tiisl part, whirli prorrod- 
 iligs oannot lir jiidirially in. tired hut must \w 
 
 '"K ., - 
 
 prnvrd, and in thr alismro of siirli proof thr 
 niagistratr arts without jiirisdirtion : Held, 
 thrrrfiirr, th.it tin,' mnvirtinns wrrr li;id, for 
 thuy did not alle^'r that thr .-Nrt was in foror, inir 
 W!i8 it prnvril othrrwisr, and thrri'forr, as tho 
 juriBilictinn of the nia^'intrntr did nnt ."jipfar, the 
 writ of eertinr.'iri was not taken nv. ay hy see. 1 1 1 
 of the Art. //.. 
 
 l^ua-re, whether tin' eoiiviotions were not nls" 
 open toolij.'i'tion on the ground that the infnniin- 
 tion enilirared iimrr than oneoll'rnre.ainl whether 
 the inauistrate having, in this reNpeet, dinre- 
 uarded thr exprrHs directions of the Art ;i'J-33 
 Virt. c. 'M, 8. 'jri, in.nle applic.'ihle hy the I 'aiiiiiia 
 TeiniKiranre Art. he might not lie "said to h-ve , 
 .icttil without jurisdirtion. lb. \ 
 
 Qua re, whether see. ! 1 1 taltrR away the ccrti- I 
 ornn in all eases, i/r only in eases coming under I 
 »ec. 110. //-. [Itut, see Ai/iMd V. WnlUtce, p. 100.]! 
 
 An iiiforiiiation was laid against the defendant 
 on '28th Heeenilier, for having »ii '25th Decemlier 
 
 4old intoxicating liipior.in violation of the ( 'annd.t 
 
 rrinprninre Art, l.S7iS. U|iiin a Hearrh made, 
 intoxieatiiig liipmr was found on the )irriniHes on 
 1st .lanu.'iry, l.SS.'l, in the li.'ir of the hotel. (In 
 this evidrnee thr inforniatioii was amrnded at 
 thr lir.iriiig on tlir filh .l.'innary, so .as to charge 
 till' krrpiiig and not the selling. The defendant 
 was present at the .imcndment and nlijertrd tn 
 it. hut w.iivedan adjiiurnmrnt and eiitereil upon 
 his d('felll•l^ The ni;i;;istiatr having fniind the 
 delriidant guilty, drew up :\ rniivictioii fnr keep 
 ing iiitoxic.'iting liipmr, whirh w;is rrtiirnrd to 
 thr rlrik of thr prace, and tilrd on 17th .lannary, 
 ISS:i. (tn thr •_'7th .laniiary. 1,HS;{. hr dirw up' a 
 sreniid iMiiivi>'tinn, thrs.imr in ;dl resiircts as the 
 lirst, with thr exception that it v«as for keeping 
 for sale intoxicating innior. 'I'his was .ilso re- 
 tiiriird and tiled : — llrld, th.it he ha 1 power tn 
 draw up and return the -.ri ond roiivietinii, whirh 
 was w.irr.intrd hy the rvidrnee set nnt in the rr 
 pnrt of the rasr: llrld. .also, that Ihrrr was liii 
 v;iiiaili:e lirtwem the rvidelire ,111.1 the inforiiiii- 
 tinii to warrant .'in amrinlmrnt, hut tli.it tiirevi- 
 driicr disrlosrd anew nll'mce, and the ainendi'l 
 inlnrm.'itinii I erame in f.irt a inw niie, and the 
 defrndant, liy his prrsmrr and hy entering mi 
 his dri'rnre, liad w. lived tin- service i)i a sum- 
 niniis upon him: Held, alsn, tli it it was ini 
 o1ij( rtinii tn the conviirtioii thit it w.is for keep- 
 ing .iiiil selling, while thr iiifiirin.ition cliaignl 
 th.r keeping only /{ajiint v. /tiniult, .'<(>. •;., 
 (,i. R I). 4.'>, 
 
 HeM. ( 'annriin, .1., dissenting, that .sec. Ill 
 
 of thr C.uild.l Trmprra • Art, 1S7H, 41 Vict. 
 
 c. Ill 1)., taking away thr right to crrtior.'i:i, 
 applies to convictions for all ntrriires against tlie 
 Jiri riding srctinlis of the .\ct, .Hid docs Hot re- 
 late inrrelv to nU'riices .'ig.iinst see. 110. A'c/i/ki 
 
 V. \y„/i„r,, J o. I! , Q. ;{. u. r-'7. 
 
 IVr H.ig.irty. ( '. .1 , and .\rinou.*, .1. An er 
 roiiriiiis linding on tlie evideiire hy the iiiagis 
 ti.itr, whirl, was .ill th.il w.'is shewn here, s nut 
 such a w.int of j irisdiction as warr.i.its thj issue 
 of a ri.'rt'orari. Jli. 
 
 I'l . ( 'aineron, .1. Thrrr wan on the faet.t Rot 
 out lielow no evidence of the cominission of the 
 oirence charged in tliis ea.c, and therelore the 
 magistrate acted without jiiriKiUutioii, and a cer- 
 tiorari would lit. //'. 
 
 I'er Armour, .1 Thr omisHion of the niagiM 
 tratr to iisk the accused whether he had liccll 
 previously convicted did not deprive him of juris- 
 dictiiin ♦!) reieive proof of the prior uonviotioii. 
 /h. 
 
 Till! .'lUegation in the conviction that the of- 
 fence waH cominitt-jil In'tween the .'{(Ith .hine and 
 the .'ilxt ■Inly, wiiH held a anlliuiuiitly curtain 
 ' Htatemeni of the time. Jl>. 
 
 CniiHtitution.ality of the Catiiwla Tcmper.iiid' 
 
 Art, 1878 See TIf Mmjor, ,(•(•., of tlu' Citi/ of 
 
 t'liilrrictou V. The Queiti on Ihe I'l 'rnlioti of 
 
 Th<,:,ui» Ihiiker. ."< S. (,'. H. 505; Hu::(U v. I'kf 
 
 I V'"'''", 7 App. CaH. 82s). 
 
 (?AIMAS. 
 
 I. Writ OF-. fee Akkkst. 
 II. Kaii. on .sVc Ha II. 
 111. Ca. He. -iSV Capias ad RiiHP()Ni»R»ir»r!(. 
 
1(11 
 
 CAliJilERS 
 
 102 
 
 |\'. Cv. Sa. — .SVc CaIMAS M)S.VTI.sr.\( IKNIil M. ' 
 
 \'. MAi-iiiorsiV SftNci DiT .SVc MAi.irrors 
 
 AIIUKSr, I'llKSKllTIOS AN1> OTIIKII I 
 I'UdCKKDINliS. I 
 
 I 
 
 f'AlMAS Alt lU'.SPOXnENMU'M. 
 
 \Vliri<' ill fi'iiilaiit w;i.s Jiii'c.stfil mi :i ca. 'ro. 
 ami it \v M iliiiilitl'iil whi'tlier tin' ilcht w.-in ' 
 ijrtii:illy <1'"' '"■ ""t. the court ivfilMcil totlisciiar^.')' 
 tin .1 iiil:mt, Jiltliiiil;,'li llii' JimIl,'!! wIik >,'|-;ilitcil 
 tl I Irr lor till' wiit WMiiM not have iloiii' mo, 
 il all tlic facts liai' liccii lu'forc! him. Willi II v. 
 /;/•-/«•», H I'. I{. ttiS. — Ha^-arty. 
 
 Set! IliilUr rl III. V. /:.,<■ !,/■ 1,11 Sii'rihn-i' <il. 1 
 V. liii.tnifrlill, H r. l;. I7r>, f. •-•»; see also W'lxiilh/ j 
 V. Slini; " I', l: IH!). 
 
 ('.. 
 
 > Al> SATlsrACIilNhrM. 
 
 When «rrvin,i{ a dcfcmlant with fiii opicr to 
 rxar.Mii ii!) nn a jmli^incnt fihihtor it is imt 
 ni'Ci-. i!v 1 . (.'xhiliit the nnuiiiil imicr niihss 
 liiiiiii I \ II orilcr to entitle tlm iilaintilf Ui 
 move tor II en. h.i. a;,'iiMit him ninler U. .S. ( •. , . 
 .'id, s. :«l.">. /iii/itfiiil Hank V. hWkni, S I' 1,', 
 •J-Ki. <;ait. 
 
 Wjier.' a iuili,'niiiit ilelitor ilisolicycil an orii.r 
 till liiH exaniiintion h'l w.is ilirectcil to pay tli:' 
 .■iiHt.s 111 ;in .'iiiiilicatioii lor a ca. Ha., altlionijli 
 tile Miiition wan iliHinisHcil n|ion hi.s >,'iviiij; Hiilli- 
 cicnt excii.su lor Inn iliH()lM>(lii>ncc. Pi. 
 
 IK'lil, tli.at where a ca. Ha. hail lieen JHHin'il 
 ii]inn I 'lie jiiili,'iiieiit within the year it was not 
 iieci'HMary to ri'tiirn ami (ilc the sainc within the 
 year. />• iiiiii/i-r v. J'/iru/iliir, 1 (>. I{., (,>. \i. 
 I). 3i:(. 
 
 IliM, that a iliviHiona! court 'may review the 
 U'lioM 111 II |Hili.'e ill yetting asiile a writ ol ca. Ha. 
 am! the arn st thereiiinler, uml .iImo hix action in 
 iiiakiii); the onler to arrest. l'iirlirr'"ilii v. /^llh/^ 
 ■luL, :t(>. |{., C. 1'. \).'M\. 
 
 Helil, on the uviiU'iiw! net out in tile rcjiort, 
 that the ilefeniliint coiilil proiicrly \n tre.iteil 
 a.s a resilient 111' this |iro\ inec /'«. 
 
 lli'M, that a Htateineiit in the alllilavit on 
 wliitli tile oilier to arrci.i, w:ih loiliuleil, til.".'.- th; 
 ilileinl lilt hill iiiaili- " an aHsij/mneiit of all liin 
 |i|ii|iert y. " witiioiit aililiiij{ for the general lieintit 
 of all Ins crcilitoiv. was of itself olijectiimalilc. 
 .IK leailiiiif to the lielief that t!in aH»i>,'iiliicilt w.is 
 frninliilent. Imt apart from this there was siiili- 
 oii'iit .stateil to iustify tliu issui; of tho onler. 
 
 CAHIUKHS. 
 I. Lunii.rrv mr. Damauf.s, 101. 
 U. MmcKi.LA.SBorH C'a.sks, I0;i 
 111. Hy Railways .SVc IUiiways am) Kail- 
 
 WAV roMI'ANlM. 
 
 t. I.I \nii,iTV r n nAMAuKs. 
 
 (»n the 3r<i Octoher, tbii plaiiitilF v-hartcr)«i1 the 
 •lofanilftiit's vusuul, tliu •• Krie IJulIc," to carry 
 
 salt from OdiU'rieli to Milw.-xiikci', for 7"> cents iv 
 
 toll, the ed'ect of til lltriet hiilig that tin; 
 
 vessel was to lii.iil .'iiiil carry within .a rcasonahlr 
 tiliiii. On the nth Ortiilier ilelemlant tele 
 j{r.'iph''il, " Mrie Mille " e.iniiot v'o, will you take 
 Hti'am hargu ;ih siili.slifute, .•iiis\ier ipiick?" 
 Soliie snliSiM|llent corrispoliileiiec took pl.ve, th(! 
 
 ]il.iiiitiir hoMiiiL; the ileieinl.int to hi^ contr.ict, 
 ;iiii| the ilefeiiilaiit Uf^reein;^ to pertoriii it. At 
 this time the iilaintilV eouM h.ive j^'ot .a vessel al 
 .SI.OO, lint w.iiteil lor the ilel'eiiilant'H vessel, 
 wlii'li was loaileil oil the 'J.'ilh Noveiiilier, when 
 the master, I'eai'in;,' liail we.itlnr, ntiisi il to s.ail, 
 .mil it was iiiipossilile to charter another vessel. 
 The pl.iintid'. Willi ha.l soM the salt in Milw.au- 
 kee, sent part liy rail. ;mi| pniil hw coiisiL'iiec the 
 iliU'criU'e in price lictwc'ii salt wliidi he hail to 
 liny aiiil I he contr.ict price. Tlie frei_'lil liy rail 
 was s:{.,''iO per ton, ami .Mt cents h ul to lie paiil 
 for c.art;i;,'e which wouhl have liceii unnecessary 
 h.nl I lie s.ilt ;;one liy ihlciiil.int's ve')s(.| ; llelil, 
 oil appeal from the arliitr.ator, that the ilefen.lant 
 W.IH not entitle.! to hohl the iiliintilf to the 
 ilain;i..,'es which he mii.'ht have vccovereil hail lie 
 ch.artercil a vessel .at Si. (10 alter the telc/ram 
 of the nth (lit ilier, f.ir that, t. Ie;/rain. t.aUeii in 
 
 Ciilllli.ction with the sulisr.plellt ci irrcspolli lellCC, 
 
 iliii Mot .^hew an ■ilisoliife rcliis il to |ierlorm tli 
 cii|'(r:ict on which the pl.iint ill' W.is liotimi to act ; 
 Imt that the pl.ainlill was eiitilleil to recover the 
 iliMerence in jirice paiil to his cimsiL;nee, th ■ 
 ilillereiice in the freijjht, .iiul tlie amount pniil 
 tor cartage. Mr/Jmuiv. Mr/.,,,!, tli (,». \i. '2X). 
 
 'I'lic ilefeii'lantH <'iintracteil with the pliintitr 
 to carry a car loail of clover seeil to javerpool, 
 am ji.ive him a hill of laillni,' thcrelor. W liile it 
 was on the iv.iy, l>y a new contract, its ilcstina- 
 till 1 was chaiiiieil to l.oiiilon, for ihlivcry to a 
 supposeil ciistoiiier of the |ila!ntill h ami a new 
 hill of l.iiliii;,' was tjiveii to the pi lintiH' ; hut, hy 
 a mist. ike of tin iliti nil.aiits, tlie sccil went hy .a 
 line ot Hteams lips to Liverpool, .iiul as soon as 
 the mistake w.iS discovereil the ilcteiiil.iiits noti- 
 lii'il ]il.iiiiliir. ..Xfter Ki'cat ih lay. which tin; 
 Ic.arneil iuili;e iii the tri-.i foiiiiil to h.ave lieeii 
 causeil l>y the ilefcnilauts, the seeils reaellcil 
 l.oiiilon .ami he plainl'.ll 's siiiiposeil cnstotner 
 h.i\iiii; rcfiiseil it, it w.is snlil ,it the reiliicpil 
 price, the market havin;.' t ilhii lictween the ihiy 
 
 when the H I shoul.i have heen ihlivereij in Lou 
 
 lion aiiil the ilay of sale. 'I'he leariieil juiljrc 
 fo'.inil a vi."ilict for (he jilaintiH', ami assesseil 
 .;h il.iiiirincH. '11 aililitioii to freiiiht from LivcrpiMil 
 to Loiiilon. till ilill'erencc in 'iLirket prici hctwecn 
 the ilate at wl.'ch t'.ic seeil shoiilil ha\e arrived 
 in Lomloii if it had Im-cii shippeil hy the right 
 line, and the day it arrived there ; - lli !.| (('am- 
 er.in, .1., disseiitiii^. ) that the itamagtH were pro- 
 perly iiHses.sed, tlu" timlilin ol tact hcinj^' that the 
 delay wan caiiHed l>y the detendants. I'er Cam- 
 eroii, ,1. The dam.ages, which were the niat(!r)al 
 renult of the hreacli of contract to carry to I.oii 
 don. were wiiat it cost the plaiiititl' to have the 
 goods taken to liOiidon, iiiid a re ;Hon.'ilile sinn to 
 eompeiiHate him for tin: expense, trouhle, and 
 correspondence occasioned hy file seed having 
 Imjcii Kent to a wrong dcKtinati..ii ; ami dainaui'M 
 resulting from a fall in !' ■ market were not in- 
 cident to the hri-ach of loe contr.act. Sfonteifh 
 V. yV.c M, rcliiii.lf)' /)i'njiiifrfi iiift 'J'r(ini/ii>rl(UioH 
 Co., I (». |{.. y. I{. I). 47. 
 
 Thi! plaiiititr, wlio had pnrcluwed a i!])ociai 
 •ixc'.irHioii ticket from 'rorioilu to Niiigara Mid 
 
 
 r • 
 
 It. 
 
 a:- 
 
lO.J 
 
 C"EI!TI()l!Ai:l. 
 
 101 
 
 retiini od tlic hmuv il;iy l>y .'i .^ttanicr of tlic clc- 
 fuiiiluiiti' , aiiil \\ liicli liii<( lii'i'ii t.'iki'ii ii|i liy ill*' 
 uurHuron tliul <hiy, > l.tiiiRil tin- ri^lit to ritiiiii 
 l>y it cm till' I'lillnwiii^ il.'iy iiiiilir an allc^iMl 
 
 a>{l'r(UIK'llt Witll till: lillI'MCI', Ullirll till, llttlrl' 
 
 <l(!niuil. On tlu' |iui'si 1' ill inaniliiiu tlii' |il:ilnlili ^ 
 f.'ue, anil (In l.iUrr ii'Hi.--in;; tn |>.iy il, llii; puitii 
 liy till |iiii'Mi'i' s illiii li.iji, l.iiil liiilil III' a vali^t; 
 wliicli till' iil.iiiitill ua-< r,iii\ iiiLr. ami atfrini'tnl 
 t(i take it anil linlil it fni tin tair. w lirri'ii|iiin a 
 Rciillli! rjistii <l, aniltlic jilaintili uas injiiicil : 
 liitlil, (IhIi'i, .1., ilisMiitin;;, tliat tin.' |iiii.s('i' was 
 lint actiii); u itliMi till: SI ii|ii III Imn ihity in tiiii.i 
 forcildy atli in|Ftin^; tn l.An-. |iii.s.s(.'xsiiiii nl' the 
 valiHc, aiiil till' ilL'Uniliints were nut lialilc I'nr 
 hlH net : III 111, also, that the a!l<'L;iil iiii|ii'i.-iiin- 
 iiiiMit of till' plaiiitill' liy till pin'si,'!' in hi.s iillice 
 for lion iiaynii'iit nl hi^ lai'r, nut lieiii;^ an art 
 which the ih fiiiilaiits thi'inNiIvi'H inulil Ii'j,'ally 
 iiavt! tliinr, till' ilt'lVnilaiit.i win.' not lialilo lor it. 
 Kiiiii'siiti V. yV/i Xhi'/iifii Siii'i'iiitiiiK ('"., - • '. 
 
 K., <;. I*. I). iV-'s. 
 
 See, J/(ilili/ V. 
 
 Mrn/iiiiil III 
 
 ilrh Cii. 4 O. I 
 
 11. Mis( i'.i,i.\Ni;iii's Cvstx 
 
 the frci;;lit, ami any cxi-css in tin car^^n to l,i- 
 
 { paiil 111!' to till' I'aiiiiT liy the I'nnsi-ni'e, " Tlic 
 
 i|ii:intity lUsriilii'il in tilt! hills of lailiii;; w.is 
 
 ] l."i,;i;iS iO (loth Im l.cl.s, while the actual iiMantily 
 
 hlii|i|iiil wii.s l,">,S.'{S II) DOths laishelM, ami the 
 
 ili.si'it jianey wa.s 4n'\vn to have oeeiiri'eil hy the 
 
 , oiiii.N.iion hy inist.ike to iiielinle a ili.ift of riUII 
 
 lai.-^liel.-i, in inakin;., up the htateineiit of the 
 
 i|ii;^ntity .Nliippul. 'I lie plaintill', the carrier 
 
 i'i;iinieii that he w.us entitled, loi' iii.-i own u.se, to 
 
 the .'idO liii.shel.s Ko .shippeil ill exei'HH : — llelil, 
 
 that the |irovihioii In the hill of lailiii)^' iliil not 
 
 ^^ive it to him, ami th.'il no eiiKtoin or u.sagi,' uiu^ 
 
 proveii ^ivMl;; il. slleh llle.'llli 11^'. 'I'hl (lelenil.lllt.H. 
 v\ lio hail aeeiiiinteil for Hiich (M'cnm to the Hliipper, 
 «ere thertlore lielii Hot liahle to tilt! plaintitf. 
 Miirliiii \. 'I'Ik Kiiiii^liiii mill Miiiilriitl I'unrmd 
 
 iiiij Co., ;(;.' ('. r. Mil). 
 
 Ilehl, iiinler the eili'lllii.--t,inee of this '."ihe llm 
 .Majisty eiiiihl not he heiil 11 ilije !i.s a eoiniiioli 
 carrier. Hnfiii,! v. .\li-l-\i,l,uh , ~ S. ('. I!. UKJ. 
 
 ('oiiveyiii;^ travellers on Siimlay. See l!<ijiuii 
 V. I'lUjijiH ; /I'li/iiiit V. /'uiliii; 1 tl, K., ii;t7. 
 
 <'i':i;'ii()i;.\i;i. 
 
 I. 'I'll i;i;iN(. II' Ink(i|;m.vh().n 
 .MII.MKM, 101. 
 
 II, To niiiMi ri' ( '((NVK ■iio.\s. 
 ; II II. n il /, .., KM. 
 •_' (////</• r,,,v,v, |u„, 
 111. (ii.-i^, iDi;. 
 
 AMI 
 
 ( 'OM 
 
 To nil ;n.tion lor tiie mm ilelivery of f;ooils ilc- 
 lixered to tiie ilelt nilaiit.-i to lie e.liritil Irolllj 
 llaiiiikoii to i'lironlo, theiliiiiiil.ini.- i^i tup that i 
 they iliily eaiiieil anil ileli\eieil tin: .aiil uonil.s , 
 U) the pl.iintillat Toiimto, laa that he iliii not, { 
 OH ri'tpiiieil liy one ol the terms ol the Kpeeial I 
 contr.iet eiiti leil inlii lietwei n the p.irtii s, give : 
 the ilefi iiilantH, \Nitliiii tliiity-si.\ lioui.-i there- | 
 after, iioliei- of any ilain.i;e or lo.ss, iVe. ; lielii, | 
 
 th'.ti tin,' ilel'eii.e l.iihil, a.-i tile eviiieuee sh. «ei| ! 
 
 that the ;;ooils wele li»'\er t.';irrieil or ilehveled 
 
 UK .dlcj^'ed. S/ii/i V. /'//I iiniiiil TridiL /I'lulinu/^ 1. li> iiiiiNi. II' Im iiii.M.vi hi.N 
 
 r'o., ;u ( . r. I'liO. ' I MirMK.sr, 
 
 A further (lel'eiiee set up w, IS th.'it the plaintill ! Where , a defend. int Ii.is lieeli <'oininittid fni 
 coiild]not inaiii'ain the ,'ietion, w liii'h w.'ii in ea^', trial, I'Ut afUru.trds admitted to hail and di.^ 
 ln'iausu hi \\ !■< nut t In: ow m r nl the L:iiiid.i .at tlii' | cli.iijjed frmn eii,-<li)dy, u .snpei ioreimrt of law ha- 
 time III the .sliipineiit at llaniilton, ha\inj; sold ; still power to remove the |ii'i'eeiilin;^s on eertin 
 tliciii to one ii. ^-Ileld, th.'it the cvideiici ; rari, hut in ita di.seretion it will nut do mi « heri 
 hIii wed th.it he, was the owner, for althiiu;,di ; there is no lea.son to ap|ii'i hi ml that he will nut 
 there npjiearcd to havi oetu a sale tlu' propel ty i !•" 'airly trinl. Iti/uai v. ,l</((/;i.'', S I'. 1; Hi'.' 
 wa. not to pa.i.s until i' .'i\cry"of the y.i id's | ( 'anienm. 
 lit Toionto. III. I 
 
 •V.Ml Cii.M- 
 
 II. Til I'.Kisi; II' ('iiwic'i'io.Ns. 
 
 I 117/./'. ;/ //, v 
 
 The plamtiir shipped i,'"ods from .'>it. .Iiliim, i 
 Qui hee. to iMind.is, ( hitario. to he e.irried Iroin | 
 St. .lol'iis to loronto hy tie- tJrand Trunk l.'.-iil- | 
 
 way Co., who delivend tlnui tothi.'tirat West- ' \ ,.,.Hi ImMI,, ti; i ,, • *• 
 
 „_„ Ii,,:i„ ,, ,.,, ,.1 , ., i I, i -^^ <'i-l^I''"'aii Vill 11 it lie to leiiim'ea eonvictioi. 
 
 em Kalu.iy ( o.. «hiieamei. the same to Dm. „„.i.., t],,. |,i.,nor I.uuim: Aet, IJ. S. (). e. LSI, .s. 
 .as. W. ere he uood., arrived,', a d:u,.,'.ved :-tate. .{s. „ Ineli has heel, allinned a. d an e iW i 
 Hie plamtlll hell,;,' in I oil .! as to w. 1 eoili-l..,„ .,li..(l, ., ; i' • • "" ii.u 
 
 III ., 1 V . 1. .1 . a I II .'U to tile He:i.^ Ill s, lor 1.S..UI1IL' a llceli.se eiili 
 
 puii,r was liahle, then- liein^ .'i .-i parate eoiitraet , .,• ,v- to lli. ^,i,l \,.| H, . ,- I V ."'^'- '"" 
 With caeh. joined l.oth ns^letendants : llchl. .'i,; ',.•.'• ' v e / "' l.' ,'""''"-, '""'^ ".'"• 
 alliimiuK the order of IVomlHol .1., who ha/l '';',', '^;■T^•i.t^ .-T J .' n' j!"'" 
 
 11" 111 1 f \% It •■ .1 tlllUlMHU l>\ ().) > U I. I. Zit M, -1. null) /('•/i/ifl 
 
 ahiiHcd the order of .Mr. h.dti.n. Ma.^Ler m v. (/n,;,,./. ,'. I.) Q. li I'.Mi. ' ' 
 
 < hamhers, ;) I'. II. , SO, that tlu' ea.se eame within ! ./ • i 
 
 nih' !)t of the .liidi. .'iture Aet, and that the plain, 
 till had a ri^ht to make ImHi ei.nipiuiii s parties 
 Han'cy V. (Iniit \\,.-i!,,-ii I! W . <\i., 7 .\. |;. 7I,-,' 
 
 The H. fi. N. \V. Itailway Co. and the i. \V. 
 HaiKvny Co., Hhipped on iUv iiLiintiU's m r-sel a 
 
 III Id, follow in;,' lie Hates, 10 (.1. li. '.'Xl, Ihit 
 the ei.livietiuti heilii; for the hie.ieh of a lu law 
 the writ lit eirtioiari w.is not taken awin i>v I!. 
 
 S O.o. 71. /.•';//'/«( V. l^((.^/(l//.y/„H, 4ti(^, |;.'.»J|, 
 
 I'er Armor.r, ,). The hivisionul Court el 
 
 m 
 
 <iuaiility of wheat Imin liamiltnii (e Kin^;»toii, <.'iieeir,') llnieh Ills powir to l|ll,l^ h a coiivielii 
 eoie,ij{ned to the Molson; I'-aliU in eiire ol (he | ""■ '"i ilh'_.'d ad judieal ion of punishnieiit 
 tU'leiidaiitM. The lulls ot l;ii|ini; cntaiiu'd tlii. allhi.u;;h it h.is In en .1 pp. .did a^iaiiist and .illn 111- 
 I'.illoW'liX iH'oviKi..n . 'All di Hi nnry in ear^'o to '''' "1 reipeet to sin h ail|iidieatiim ; and s. 71 ni 
 Imi paiii for h) lliL earnt'i, and dcdueted •loni •'- Hiid 'M Vict, c, ."II, l>om., dues not Like away 
 
101 
 
 105 
 
 OIIOSH IN ACTION. 
 
 lOG 
 
 IIIIIJIIDll 
 
 !. UKI. 
 
 I!i (/(Mil 
 
 ( 'O.M 
 
 thu ccrtioraii in sucii a caao. McLt/ldii v. 
 J/,A';».<"»', lO. R, (.». H. 1). 'JIO. 
 
 As to tlic ri-'ht of ccitior.iri in convictions 
 jiniliT till,' Canii'la 'r<'niiHT;inc(! Act ISTS. Sec 
 
 I'l^iiii'i V. \y<ii.-<ii, -J (». I!. 'Jilt;, 1). 'j;» ; /.'.;/;/((( v. 
 
 HV///./.r, 4(). U. 127, p. 100. 
 
 2 Ollirr (^iiKin. 
 
 Held, that ft conviction once? ii';,'ulaily l:/-oiii,'lit 
 into, .iiKJ ])Mt n)ic.ii tlu' lili'H of the court, is there 
 for .ill |iiir|inscs, ami tliat a (h'fernlant may move 
 to i|nash it, however or at v.hnsoever instance 
 it may havclkcn l>rouuht tlu re. NN'here, thi'rc 
 fore, on an ap'ilu itioii for a halieiiM eorims, iiiKJer 
 |{. S. (>, c. 7(1, a certiorari had i^siied, ami in 
 oliedicncc to it tli(! conviittioii had \f <n retiiriied, 
 tlie conviction was (|nashed on motion. thoiti,'h 
 tlierc had hien no nolici' to the nia'.'i-tr.itf, or 
 n'c(i_;nizance. Ilcj^ina r, l,evec(|iie, HO <,•• li. 
 ."tOit, distinguisiiiil. It'\i'inii v. l)'./r<(/i, t."> (^ li. 
 
 On a niiptioii to ipi isti a I'onviction liy a jnstici' 
 of till! jicaci! which hail liecn a])|ieded to tlic 
 county jiiiIl'c, an olijection Ihil tii ■ writ of '■vr- 
 tior.u'i was iin|iroiierly ilirectcd to, ami rctiiriu'd 
 hy, the clerk of tln^ )jc ice .in I eonnty .attorney, 
 instead of the comity judfie or ni,a.;i.itrate, w;in 
 overruleil. /i'li/iiiii V. J'rinr/i ;/, I'l t^. li. ■_''J7. 
 
 In shewin',' <','iuml> to ii rule nisi to ipi.awh a con- 
 viction, olijection may lie taken to th<' rcLrid.irity 
 of the certiorari, and a He|iar.ite ap]ilii'atioii to 
 sii|ier.seile it need not he inadf. When', there- 
 fore, on .an .aiipli. ation made after Tioticc to 
 till' conrictiiiL,' jnstici's for a rnli' for a certiorari, 
 the rnh' was refnscMl, and on a snlisi'ipicnt ex 
 jiarte a|iplic:ition on the siine niateri.al the rule 
 was olit.iincci, it was lleM. alliriiiin.; the dei^i 
 
 sioii of ( I.ilt, .!., that the noti f the (ir^t .ippli- 
 
 Clltion woiiM not I'linre to the lienelit of the deleii- 
 (liint on his second .•ipplicition, ami that the 
 ccrfiiirari was irrei,'iihiily olitained for w.int oi 
 
 notice! to th iivictiii:.; jnstici's ; ;ind a iiile to 
 
 tpiash the coMviction was therefor,' discii.ir^'ed. 
 (/'aiiieron, .1., dissented, licin;.' of opinion that a 
 Hlllist.mtive nmlioii shmiM lie ni.iile to ijilihIi the 
 writ of certior.iri ; .and th.it the conviction licinix 
 
 Ix'tiirctli iirt under a writ ot eertKPi.iii iin 
 
 Kllpcrsedcd, the v.alidity of t lie coii\ ielioii should 
 1)1' impiired into. Jin/iiiii v. JhAlliiii, l.") Q. H. 
 
 Where tile reeoLjni/anco to jiroso'iite a ccr 
 tior.iii, retiirni!d alter allowanci' of the litter hy 
 tile convietin;,; justii'cs, to;;etllcr with the con 
 viction, is siihst.intially und ( leaiiy had, and the 
 conviction may jiossilily lie npheld. (he .dlow- 
 ftncc of till! certiorari in ly '"■ ipi.ishcd on thi! 
 ri'tiirn of the rule nisi to (|nahh the eonvii'tioii, 
 without a stihst iiilivc niotioii for that purpose ; 
 Imt othcrwisi', where the olijection is a trivial 
 one, or the conviction is cleirly dcfectivt! and 
 must iiicvitahly he ipiaslied. 'Uiii'mii v. ('Iiiil\ 
 
 4t; (,t. IV .')(;,-). 
 
 Held, that the defendant having hail the ccr- ' 
 tior.iri directed to tin; ni.ij^istrate who li,kil con- 
 victed w.is estopped from olijectiiij,' that th m- 
 
 viotioli was in reality made liy three jnitices as 
 iippi'ared from the memorandum ot conviction 
 which w.is siijned hy tlicin. /i'm/o/i v. Uniitli. 
 
 4t; (,». n. H'.>. 
 
 III. Couth. 
 
 As to powci' to impose costs on priv.ito prose- 
 cutor where iiidictiiicnt f'lr olistrnctiiij,' highw.iy 
 rcmoveil hy certior.iri at his inst.iiico. >Sce liegina 
 v. ]l,irl, 4.') Q. ». I. 
 
 CITAMI'I'.irrV. 
 
 It IS not a I'liampertoiis transaction that an tm- 
 Koci.itioii of |iersoiis, with which the pctitioiior 
 was |iolitieally .''lied, a','ii'ec| to jiiy (he costs of 
 the pi'titicui. Kviin if the iigreement were 
 chanipertoiis, that would not lie a sutlicient re.v 
 son to stay the pidceedinf^s on the petition. 
 Xiir'h S!iiir 1 I'JIii-ltnii i'llii'iifilt V. (Uink, I H. 
 
 K. C. (>I7. 
 
 ("IIAKITY. 
 
 Di-.visrs TO X.r Will. 
 
 <ll ATIIIL MDIil'tiAdR. 
 
 Sif lilL;.S (IK .S.M.K AMI ('tlATTKI, MoitTd \(IB». 
 
 fMIKQUI-:. 
 .S'l'' Manks -I'av.mknt. 
 
 <llll.l». 
 Sir Inkant. - I'aiuint ami Cmii.ii. 
 
 fllOSl", IN ACTION. 
 
 I AssIilNMHST (li'', l(V;, 
 
 II. ATrAciiMr.sroi'- l»i:in'.s. .sVc .Aitachmknt 
 
 OI' I Inns. 
 
 III. l{t:i.i:\M.; 
 
 ■sv-.' Ui:i.I';ask. 
 
 IV. Kn.'i.;rr ot' SK(<rK,iTHATi(i.N. .Vic Suyui 
 
 TllAriON. 
 
 I. Assii;sMi:sr (IK. 
 
 I)eclaratioii, tli.it l>., hy writing, for valuable 
 consideration, duly assitjiied to pl.iintit!' th<! sum 
 ot .^."p(M(, iiioney due and to lieeome due to I), by 
 deteiid.'iiils. whereof ileleiid. lilts had notice ill 
 writing, .'iiid .at the time of jiml jiftcr s.iid asHign- 
 iiiciit, and after said notice, and liefoie action, 
 defemlants were iiulehted to I), in money sutli- 
 cient to pay the sum so a.isigned to piaintiH', 
 Ac. : Held, on demurrer, had, as not setting 
 forth any tact from which the existence o' aiiiT 
 piniiiise to pay a ih lit woiilil lii! implied liy law. 
 
 .Mitchell c. (I l.ill, 14 I.I. li, ;{'.I,S, and 1 trice /'. 
 
 liaiiiiistcr, L. I!. .'1 ','. II. i). ."il!'.), lislinguishcd. 
 Siiiiili V. Till Ciir/i'iriiliiiii iif AiirnsliT Tuivnxhip, 
 ■\'t (.». li. ,Sli. 
 
 The second I'oniit stated that 1>. , being largely 
 indeliteil (ii |ilaintitl', and heing pressed by Tiiin 
 for payment, it was agreed that I), should iujsign 
 
 
 r 
 
107 
 
 ciiuiu'ir. 
 
 lOx 
 
 til pL'iiiitifT, to w<urc part (if s.iid dtlit, S.'OO iliir 
 uiitl ti) li.iiiim- iliir ui l>. l<y (Irliiulaiit.i I'lir wmk 
 ilolK: li,v 1>. : tliiil I), gave filaiiitill iui inli-i- ll|iiMi 
 «lel'«iiililil-i til paj Miiiuc til plaiiitill': that plaiiitill 
 iH.tilitil lUlciiil.inIs, uliu 11 pii.-,(iitL(l to plaiiitill 
 tliHl it In- Would piiKcul said ordrr hm nooh an 
 tlicy had cxainiiifd said work, which would lie 
 Im.'Ioii' hiciiidiur, \S'<.I, they wmdd pay ihr .s^tXI 
 to hiiii : thiit liy said ifpiusiMtatioii jilaifitill 
 w.iH plcviiiitid fioin procccdifi),' aj;aiiist |). to 
 rtfovor said S."i'>" : that atUlwaiils and lii'loii' ' 
 Haiti l>ccfiidiii, diliudaiits luiiij.' Iialilo to pay' 
 Hiiid sum, and will kiiowiiii; that plaiiitill', irly- 
 iiij{ on said nprcMiiitalinii, iilr/iiiiid lioni such 
 proccnlinL's. pall! tlic i-aiiic over to l»., in fr.iiid ' 
 of plainlitV, and ilctilidants thcicittir wicnij,' I 
 fully iciiiscd to pay name to plaintill': Held, 
 good, as disclosing! a ciiisc ol action upon an 
 iiHMi;4ni!icnt ol' a del it due liv dclcndants to l>. for 
 work and lalioiir pcrl'iiinicd Im- ihein liv h., and 
 a promise mi their part to plaintitl to pay such 
 duUt. III. ' j 
 
 The pi lint ill' ^MVi! a chattel niortgaj^e to H. to 
 MMiure certain iiioiny. with a proviso <Mialiliii^' 
 the niiiitL;aucc to taki' possession and sell in case 
 the ^immIs >>hiiiilil he taken in execution liy any 
 creditor lit the inorti^a^of. These floods were so 
 taken, and ilrU'nil.iiil, to whom the mort<^M^'u had 
 lieuii .issi;;iieil liy II., look posso-iion and mild llli 
 tier it, l>>i v\hielitli< plaiiitill sued ill this .u'lioii, 
 ulliigin^ that II., the iiioi't;^a;;i'e, vcrli.illy agieed 
 to pay I Ik sc executions, which were made part 
 of th(^ money secured : Held, that the delell 
 
 iliint, as a isuiue, took sulijcct losiich a^neiiieiit 
 (which dill not vary the tciiiis ol the mmtj; i^^e), 
 though uithoiit notice of it; and that the |ilaiii- i 
 till till !■ lore \\.i- improperly iiniisiiited. Miiilii\ ' 
 V. /liHiiii'iii, 4.'< (,». I!. 'Mo. 
 
 Th<! plaiiitill' Iranst'eried a covenant for the 
 [taynielil ol .T'l.lKKI. cxeillted li\ i.iiir persons in 
 hi.i favour to tin ileleiidiiit liy an alisuliitc as>i^'n- 
 inent, a.> secnrily Im •'^'J.OtlO ; the deleiidanl ^iv 
 ing to the pl.iiiititl a sepi.iate agreeliu nt, to "re- 
 assign" on pa^ineiil el the loan and interest. 
 l>ii u lull to ol.tiin a it; !ishi;;niii lit alhgiiii; that 
 such lu.iii li.ad lieeii repaid, tin- court (Npr.i >.'■;•■, 
 *I.)liiMile ,1 decrei' fm redemption in fa\oiiiii| the 
 plilintiir « itil ciists ; t he deleiid iiit liaviii;; set up 
 a claim to he entitled to hold the security as all- 
 Hi lute pun Iciser tin iiof. Liriiujutnu v, Wiiitil, ' 
 •J7 t'hy. .M,-;. 1 
 
 I 
 By tile terms nl a lieeil ol surielnler ol u leaHU 
 «>f a hirm to the plaintill, the lessee \V. waii to, 
 h<ive thi^ lirivih>;e 1.1 reaping or selling the full 
 wheat sown, on p.iyiiielit ot the n ni in advance, 
 or securing it hy I -t o, tKtohcr, 1.S7,S. On that 
 diit< arm i\n without Mich payment or .vii'iirity, ' 
 the plaintill refused to.dlow its removal, \\lieiv- 
 iilMin \\ otlered to give pl.iintid' .-iii ordt r for 
 #*.i!W. ^,'l, the amount of rent alleged to lie due, 
 on the defi ndaiit, a eoiiiinission inercliant to 
 
 whoi.! VV. \\,\f ;;<•■ iistonied to seiii! his grain for 
 »)ile, .' d' lemlunf would accejit it. 'Hie plaintitl 
 lueoiilingly saw lUleiidaiit, who said he would 
 Accept it It It was all riKht. and dn w up an order 
 ill iilaintiUs laMmr, wiiich W. sigiu «1. ' 'llie 
 Biaiii »» as then ship, d to dcfeiiilunt, and Hohl 
 
 byh.iii. llelorc til. ,i,iii, airived.oiat all eventB 
 heforu it was Mild, \V. vcrhally iiotillcd deleii- 
 
 hiiit Hot ;o pay plaintill, and the deleinlant re- 
 quiring wri'teii notice, \V. wrote defendant 
 »itatiiig that he had found i.lainlill 's account in- 
 
 correct, and not to (lay )ilainlitr without furtlier 
 instructions. The deteiidant thereiipoii, al 
 though expressly notilied ' V the piiiintill 'V 
 solicitor, tli.it the pl,iintiH'insi..ie<l nii his right 
 to lie jiaid, paid over tlit^ anioiint of the order to 
 W.: Ileld,allirniing the iiidgmentof the (Vueen'H 
 Heiich, that there was a good eipiitahle assign 
 inciit, and the plaiiitill' was thert^l'ore eiititlcil 
 to recover. Mihlfll y. (Iiiiiihill, ,") A. It. ItW ; 
 
 4;i (.». It. ;ws. 
 
 Held, that the usual coven;iiit to insure con- 
 tained in a mortgage exci'utcd nniltu- the .\ct ri 
 specting short t.iiins of niortg;igcs operates ;i.- 
 an eipiitalilc assignment of the insurance when 
 ellectid. drill 1 1 III. V. Cili.iiix' liiKiirmiri' Cu, , 
 iliiiiii III. V. /I'lii/iil liLiiiniiicr I'o., 5 A. li. oltii : 
 •27 fhy. I-M. 
 
 Held, lli.it to an action liy an assignee of an 
 account for the (irice of luinlier and staves de 
 livcred hy tin assignor to the deleiidant illidcl 
 two certain contracts theri'for, the dcfeiid.int, 
 under K. S. O. e. 11(1, s.s. 7, l(>, and tin 
 .liidicatiire Act, »s. 1'2, If!, .•ind Rule ll'7, can 
 set nil as a defeiici' ii claim for damage lor tin 
 lion delivery hy tl e assignor to the deleiiilanl ol 
 certain other tiniher and staves specilied in tin 
 eontr.'icts, and for tlio iiilerior ipiality ol tlin.se 
 deliviied. I'er Osier, ,1., his right to do .s,i de 
 peiuled wholly upon U. .S. (). c. 1 li'i, s. 10. In 
 this case the learned jiidne, at the tri.il. Iia\iii;: 
 reliised to entertain the former dcteiice, a lu-w 
 trial was ordered. '/'In Iwrlmiiili' luuil; v. Sl'n. 
 
 .■<iin,;\'i ('. I', ir.s. 
 
 A soliititor's < laiiii for vosl,-. .ifter a ret.iincr \\\ 
 a Mutual l-'iie Insur.iiice ('<.nipaii_\ was held ti 
 he a ill lit for which the coni|>;iny was lialilc, imt 
 each lirancli of the compan\ lor its own piopoi 
 tion. The claim liein^ one to li. and !>., I'. 
 .'i.-<sigiieil his intciest on it to li. iip-ui cert on 
 IriistK, in which, however, H. had no iiitei\st: 
 Held, that the ussigiinn lit was .ili.-^olute .uid ll 
 I ntitlcd to sue: Held, ,'dso, tlnit IS liaviiii; 
 lieeii president of the coinpaliy when the cii»t.« 
 were incurred w;is no olijectioii. /'".// v. diii 
 iiiliiiii .Miitiiiil i"u( liif-iniiiici To., il I', i;. •Jill'. 
 I'r.iiidloot, Iteviised on appeal, not n imrtcii 
 
 See, also, Cuirm, y, Iti.ulillli . 4t'i (^ I'.. ;i',t8. 
 
 ( iiriaii. 
 I. Cm K( II Ol i;.N(ii. v.Nii, los. 
 II. Till sri;i:s (>il!i:i.iijiiirsls-.iiTtTiiiNs, lid 
 HI. HKyLK.v).H in— .Vti Will. 
 
 I. t'ln l(( II ol< ;;;,i;i..\.sii. 
 
 t,tllii re, wlutlicra wiittili litelisc to a pal ei 
 is iiece.'sary in the |iiocc.-.e ef Huron; hut il 
 necessary the defeiiilant.-,lia\ in^ pl.n id the liaiiic 
 ot til', plaintill on the list of <lergyineii intituil 
 to :i sh.'ire in the coninint.ition Iniid, conhl nut 
 afterwards ohjcct to the want of such license in 
 a Hiiit institiiti d hy him to enl'orei payment ul 
 his share ot siuli fund. II iv'./A/ v. 'I In linui' 
 l-iriiliil Si/niiil (!/' till />iiirinr ul' II iiinu, '_'!> ( iiv. 
 ;MM. Iteversed in njipeal, sec. '-'Of. L. J. 110." 
 
 The right to piwH hy lawn iieceMDurily iin|i(irt)i a 
 right to repeal the same, Imt this cannot ho doin 
 
10!) 
 
 (!i)IJ.ATKI{AL SliCURITY. 
 
 no 
 
 to tlio- |irfju(lii:t! of .-i i):irty wlio liii.s nlitaiiiuil 
 i-i>;lit.s miller such !)y liiws, witlioiit liis assent. 
 'I'licroforu till,' cliuirh hdi'iety of tlio diouuse of 
 Huron, liJiviiiji; nocivt'd ccrtiiiii moneys, invest- 
 eil the same, .'iliil then ii|i|>ointeil ii eommittee to 
 eonsider the future iii)j)licatioii of the siiri)lus of 
 .-.ueli funil, anil on the report of the eommittee 
 iiossttd a liy law [iroviilin^' that every elurgyman 
 of not les.-: than eij^lit years' active service in 
 the diocese, who wjw not under e<'clesiastic,d 
 eunsure, not ou the eonnniitaliun fund, and n<it 
 in receipt of any salary, shouhl lie entitleil to 
 .■S'iOO a year. Under such hydaw the plaintilV 
 was placed en the list ■ derj^ynn'li entitleil to 
 such allowance of ,»i'_'0() trnni tin; surplus interest 
 of such fund, and for soi le tinu; recci\eil it, and 
 defendants, under an Act of the K ;;isl:itnre, 
 succeeded the chundi soeiity : Held, that the 
 plainldl' had a vested interest in such surplus 
 interest of which he could not he deprived, so 
 lonj{ as he e;uue within the piovisioiis of the oy- 
 law under which he had hcen placed on such 
 list ; and .-i suliseipient liy l.i.v rcpi din;; all h'r 
 iner liylaM s, and declaring that all former j^rants 
 ui.id" in pursuance of prior liy laws sin. 'ild cease, 
 could not allect slleli vested rights of the plain- 
 tiir. //'. 
 
 Seudile, that the annndnicnt set out ai \>.\'^i 
 ,1(I'J of the report, licitii,' to strike out ;i certain 
 canon and sulislitute anotlur for it, thou;;li 
 iiiovcd as an amendment ti< a proposed amend- 
 ntcut of sui'li I anon, was rather a sulistanlivu 
 niotiiin and should have liceii luiMi;;ht In lore the 
 >yuoil through the standinj; committee. /!>. 
 
 ruder the ( liurch 'rempnralities Act, .'{ \'iet 
 I. 71, ^s. '_', ;!, (1, a vestry lapaMe of <lec|]n>,' 
 iliinchwai'ihiis, foiiuin^ a corporation umhr the 
 .Vet, so as to lie e:i;ialile as such of siiiu;; or liciiij; 
 Mied, nmst lie lompoMil of pcisiins lioldiiij,' pews 
 in the church hy pur.hase or lease, or holding 
 sittm^s iherein liy lease from theehurchwaidenH. 
 The churehv, aniens of a church where the sit- 
 tings were H holly free, were therefore held not 
 liahle on a .ontract niade liy tlw ir pi'eileecs.Mirs 
 lor liudihii^' tiic ihnreli. . I ;/r/i ;•.<()« v. \\ nrli r.i 
 fl III. W:. ('. I'. lioK. S.e 47 Niet. e. >S!). 
 
 \\ lure il testator liei|i|eatiieil unto tile ill' .1111- 
 heiil >if a I''' liu ehuii h .ill the pinperty she 
 Illi|,;hl die pos.se. .d of, to lie used for tin' lelii f 
 of the pii.ir of tile > .,ii, . o, to lie illspeiiseil liv the 
 •said iucuiiilieiU, .Hid the ehiirehu .irdi us liroiii^ht 
 .III action, on l>el'.,'dl of IhiUlsiU.s :iliii ;ill the 
 uiilMliers of the con;;rej,'ati m, .iL^ainst the execu- 
 tors, to have the ist.ite ailministired, and for a 
 declaration th.it (lie ineiimlii lit was eiitith d to 
 distiiliiile till tiiiid, and ail unler for p.iym<.|it 
 over of ,ill III li >uiiis as should li.ive lieeii dis 
 trihuti'd liy till iiieiimlieiit anionic the pooi of the 
 church : III III, on demni iir to the stale. mn* of 
 claim, tli.-it it u.'is had in >iilisl.iiii e, for the chiirch- 
 
 waideiis had no title t .iint.iiii the !ielion, 
 
 since they could not 'le saiil to represent thi' ill- 
 cuiiiUnt, to whom the liei|Uist uas made, and 
 who Was not a meiidier of the eoiii^'ir;; limn in the 
 .s,iiiie >eiise as the plaintill's and the otiier mem- 
 hers, and m«i li ot the Church Teinporalities Act, 
 'A \ict., c. 74, did not authorize tliein to suu. 
 MrCliiiiujhiiH V. (ii-i'i, 4 U. I;., ( hy. 1 1. ;(Oii. 
 
 Senilile, that the Maid seetioii ^^ivcs ehunli 
 wardens .•viithority in lerlain spiieilied m.itters, 
 iu which all the nieiiilierii ol the ehureli are in- 
 
 terested, Imt here the liei|Uest was only to a par- 
 ticular class, vi/., the poor of the chinch, and 
 therefore not within the section. Clowes i'. Ilil- 
 liard, L. I!. 4 Cli. I). Ii:», and New Westmin- 
 ster Itrewini; Co. c. llannah, •_'l W. It. ,S!)!» fol 
 lowed, and W'eiderni.iii /'. .Socii'ti'' (ii'iierale 
 d'lllectricile, I,. 1!. IK Cli. I>. •JIC distini'uish- 
 cd. ///. 
 
 II. TiusrKrs ol' ItKi.iciors Institi'TIons. 
 
 Held, under the eireumstineeH of this case, that 
 the trustees of a coli^^reyatioll of the Methodist 
 ('liurch h:id power to liorrow mom y ami secure 
 it liy chattel inortya;;e. See Itmirn v. Sirn'l, 7 
 
 A. h. T2r,. 
 
 CLKRCY HHSIlllVKS .MdNKVS. 
 
 .Not within the eoiulitioii of tnwii.liip trea.s- 
 tiri^r's liolid. See 'J'/n ( 'nf/ioi'ii/i',!/ ii)' l/it 'rtnrit 
 
 sh'j, ujdiikliiuil v. I'miin- (I III., I 1). I!., :{:iO 
 
 CLKIIK (il'TIIK CItoW \ .V.ND I'l.M.VS. 
 S,, I'liM riiK. 
 
 cm:i;k (ti'iiii; I'KAci; 
 
 .Si I ( 'oIN I V A I roKM'.V. 
 
 Cl.olDoN TITLi:. 
 
 .V(( ^W.y. o|. I.AMi. 
 
 COiiOl'IMi IIAIihOl'lt. 
 
 Semhie that, " 'I'he Cominissiniieis of the 
 Ciilioui^; Town Trust" are a eor|ioratiiiii iiiid'r 
 '-'1 N'iet. e. ~i'l. .See MiS/iiir/i v. 'I'ln Ci^niiiii.- 
 ■■liiiiii r^^ iij tin: CitliDiiri) Tiiicn 'J'riml, 4"! ij. I!, J-tO. 
 
 (iradiial aecretioii occasioned liy harlioiil- 
 works. See Shniillij n' ill. v. I'lrn/ it itL, 3 
 
 s. ( '. i;. ;{,■)(;. 
 
 tilMiNoVIT. 
 
 Kr.'indulent preference. I'ressiire.- Collusion. 
 ."•'c! T/ii Mi:ii/,,i.Sl/n,Ci,. v. All i/-i/., ■_' tt. i;., 
 4.")! ; Miiit'in V. MiMii'ini ft ill., S \. \\.. (;7."). 
 
 c(>i,i.\ti:i;ai, sik ii:itv. 
 
 Where niiirt;,'ai,'cs or i.llier ev ideiui s of ilelit 
 .in- .iHsi^'Uei! as eollatel.U security liy .i deiitm to 
 his creditor, the latter is liolliui to use due dlli- 
 ^eiie.' ill inloiein;; paynieiit Ihereot; ai:d il 
 throu;;li his delault or laclio the nniin y seeiired 
 till leliy is lost, it will lie eh.iroed ,i;;,iiiisl the 
 I'l'eilitor, and deducted floni his lieinaml, Sijiiinl 
 V. Dv Uliii/iiiiii, 'Si Cliy. Oi'tC. 
 
 
 ft 
 
 V 
 
 
Ill 
 
 COMPANY. 
 
 A lii()rt^"i;,'cc |iinccc(lcil on lilt' s:mif d ly f'l 
 t'orcttliiHt; till' |iiii|ic,ty lit till? iiiii' I:,' igiir ami li ■< 
 .lurctii-'M l>y Hivii'.il liill.-i iiiiim (liiir ir-<|M'ili\i' 
 ^lllrt;^.■lL,'|■^ mill tnHiii' at law, in iliHi'iint arliniiH, 
 tlir sM'iii' paitii'?! on iHiti's liclcl liy lln' iiliiihill-^. 
 tip wliii'li till' mill ti,'aj^i's \M'ii' I'lill ilii'il ; Mil ' 
 that iinly mu: Hiiit in (!i|iiily WiiH Mi'i'i!sH:iry, as a 
 |iai tiis iiii.;lit liavi' Immii lirmi'. lit lif'iuc tlir rniirt 
 tlii'ii ill. all 11 nnilirs i^iviii wlmli nii^lilliavr liii'ii 
 olitiiiiiil at law, anil all lijiits niinc iniiviii'uiitly 
 ailjii.stril lirlwii'ii till' iiailiis in mii' than in 
 H(!VLTal Hi|ils,anil the nui'-t Uuiijil nut lio ilni'l nil 
 from j;;nilin,' irliff liy the i''fi'iiiiMt.inri; of a 
 ilccroc! lii'i'i I I'liniplir itril. M: fi-liniil <' lUink v. 
 HimrkiH, '.'SCiiy. los. 
 
 \Vhi!rr ir, ns.si:;iii'il a (;i>rtain niort'^.ij.'o to M. 
 to Hci'nrc payiiK'tit of two |iiiiii>i.sMo< y noL's of 
 less a'lioinit than llii? nioii ;.il;i? ilrlii a'lil M. 
 Iiaviiii,' |iriMiiiiMl an a>^i;.;nnMiit to liiiii-;rM of ii 
 iMitaiii jiiil'4iiirnt aijaiiist li , llir MlciiH', |iili.-.ii- 
 ant to writs i-.<iif,| uinlof llh; xaiil jiiil:.;niriit 
 Hfi.'ril ti r lliiiiti,'a.;i' so assi'Miil, ami .M. rr ii-ii;l 
 to rxrillti'a l(a-i-ii;,'liliK"it llii'lrul to I.',, until Pot 
 only the a'liiiiinl iliii' o<i tint |ii'iim<<Mi''\ iioti i, 
 l)ilt also that the lialaiii'o ilni? iimliii' tint himI 
 inoiljam' w.i.s [iiiil : llilil, iliat U. wa.si Mtilii'il 
 to !i reas^i ;iiniriit on |iaynnnt of what was iliic 
 on ihi iiiitrs only, Im- ihr ]plainliH"s iiititrst in 
 till! moil. i_;i' was not (irn|ii'i)y i'\i. Iiir liy tliu 
 Hhi'iiir ii'iiliT I:. S. (). c. (ill. Ilohs c. Siiniison, 
 'J.'H liy. .'iri'J, il'slin .(iii^lual. /'ii,iiii/ir v. Mur.i, ,'{ 
 O. 11.; Ihy. 1). 1(17. 
 
 Sue /ill' Fi'iilinlil hiiiiil mil/ Siii'liii/.i Sni'in'i/ v. 
 Fiii-nll, -M . , I'. .(-,:t, p. <).-.; Hull,'.,, V. Fill, ml 
 liidiL; !» r. l;. .">(iS, \). 70 ; C'ur.'iniin v. lluiu-liir 
 ft a/., ;i U. li. 4(i'_M>. '.t.'t. ' 
 
 I IV II «lllll- MIL [11 ll|H-.I l_V I 
 
 — .^ ,... ... Ill \\. anil lii.s assii,'iitr.s. ( 
 
 al. shiiiilil not hi'ai- the loss. Ciirlii/ il 
 Will'iiiiiK,': .s. c. i;. 470 ; .-> A. H. (i'jii. 
 
 <//. 
 
 CO.M.MISSKtN i\V i;n(juiiiy. 
 
 .S'li- ( 'iiiNTv Cdiitr.s. 
 
 (;oM.i:(!i:. co.m.mi.s.sion to i;.\a.mi.n'h\vitnkssh.v 
 
 .Sue J/i(/v7( V. Huron Cu/lnji; 'J- Cliy. cor,. Sir KviKKiNCK. 
 
 CoM.l.sloN. C().M.Mi.s.si().\:;|{.s OK I'OMflO. 
 
 On |{,\ii,wvv.s-.Vtr l!.\ti.w.vv.s .vnd 1!viiw\y , ''"Wf'''' "•" to re^'iiLitini; !iiiil]iceiisiiijr owners 
 (')MI'VMI'S ot e.alis, iVc. See A'l i/i/iK v. A'li iv.s, H). 1!. 4'.I0, 
 1). i)S. 
 
 CO.MHIXATIO.V. 
 
 Sve l'.\IK>ToK I.NVK.SIION. 
 
 CO.M.MI.S.SION. 
 
 I. l''ilK .Si;ltVI(K.>i Ukndkuki). 
 
 1. . To A'/nilx — Six I'm.NCII-.M, ami AcrsT. 
 '2. Ill AiliniiiitiiriOiiDiSuiln- -Si r KxKcuroii.s 
 
 AMI Al>MlM.sTlt.\T(lli.s. 
 
 3. Jn J'lirliliiiii Siii/n—S'i I'.viniTio.v, 
 
 4. To TriiiiliiH- Sv<: 'I'lir.sr.s .v.nd Tncs- 
 
 TEK.S. 
 
 (■((M.MIT.MKNT. 
 
 I. AltUKsr-.SVc AltltKsT. 
 
 II. Uv AriAt iiMK.sr Sir Ait.voiiment itv 
 nil: I'KitsoN. 
 
 CO.M.MON l"AI!i;ii;i{S. 
 
 .Vic I'AUItltlKS. 
 
 COMMI.SSIOX M i;i;CHANT.S. 
 
 ^^'•1 'K'l" issioniiieivhant resiiling at Toledo, 
 
 Ohio, iiiuvh.asetl ami hhiiiiieil a cargo of corn on 
 
 CO.M.M UNITY. 
 
 !-aw of (^»neliee as to iwsets l)l■loll^'ill>,' to the 
 eoniniunity existing lietweun hiisliaiKJ and wife. 
 Suu I'iloio V. Jiniiiit, fl .S. v. U. ;{|,s. 
 
 CO.MI'ANY. 
 
 .SVc (.'oKI'OllATKlN.S. 
 
11. 5 
 
 CONSTITIJTIOXAI. LAW. 
 
 114 
 
 COMl'KNSATIOX. 
 
 (JON' FUSION' OF IMIOPKIITY. 
 
 VVITNKSSHS 
 
 TACIIMKNT OK 
 
 I. I'.ti! Takim; l,\Nnsi.u H\i;n:riN(i Woiiks. f^t^L- (Hinr v. y'lrhoux,; 32 ('. P. !M) ,■ S:,iifh v. 
 
 Thr Mrrr/innts Itunk, •-»S ( 'liv. (I'-'i) ; S A. U. 15, 
 Mrlhmnlil V. iMiif <t III., 7 "S. (). K. 4(!'J. 
 
 1 Hi/ (I'orenniintl, 113. 
 
 •J JSi/ MiiiiiiiiiiiliiiiH - Sif MiNicirAi, 
 
 CdHl'OltVTIONS. 
 
 3 li'i I'liilii'inix -Sff Hah, WAYS and 
 
 IJAII.WAY ('(IMIAMDS. 
 
 II. Foil Imi'Iiovkmi;ni's-.s''<' Imimiovkmbnts 
 ON Land. 
 
 III. In Siits Koit Si'r.iiiic I'iiuioumanci: - 
 .S'(( Sriu iiic l'i'.iiroii:\iAN( i:. 
 
 |\'. To KxwrToiJS .S'c FxKcriuKs AM> Ai>- 
 
 MrNlsTHATOIiH. 
 
 y. To Tiif.srr.K.-^ Sn Tur.srs anh Tiir.sTi:i:.<. 
 VI. Commission in Likt ok Costs — SVc F.x- 
 
 KiirolCS ANK AoMINIHTliATollS t'Alt- 
 
 •ririoN. 
 
 I. l'"c 111 Ta KINO I.ANiisoii Kxr,(irriN(j Works. 
 
 I /!i/ <!ori I'll III! III. 
 
 The Linvi'i'iiiiiriit of (.'.1111(1:1, liiivinL; taken (lie 
 laii'l 111 tln' ilitiiiii.ini's t( st.itof I'cir tlif |iiii|iiisi'.s 
 of till' W'rll iiiil C.iiiiti, |);iiil into I'liiirt, iiinli'r tlii' 
 itatiiti', iisiiin aw.inlc'il liy tlu' valuers, inteinleil 
 to eiiver .ill el.iiliis w liieli tlic' oWllef llliijllt liavu 
 of .my kiiiil. Tin? owner w.is to lie at lilieity to 
 ri'iiiove liiiililin^'s, iVe., ami on |i.iyiiieiit of the 
 money to euiivey free from all oilier ineunilir.-m- 
 ce.s, iiielllclili;,' t.ixes. {"lie |il:iinliir w.i.-i les.iee of 
 thu |>i'o|ierly so t.ikeii, ,'inil el.iinie.l eoni|iens.itioii 
 for liisturli.iiiee : llcM, tli.i* the plaiiitill' was 
 elltitl'il to li(! eoin|ielis;itei| out of tlio money 
 ji'iiil iiao court, ami tliat liis elaiiii wis one 
 wliiiii til.' owner was li.i'ile, umler stat. .'17 Viet. 
 0. II!, s. I, I)., to jiay, ami wliieli slioiilil liavo 
 lieeii l.ikeii into eoiisiil'iMtioii, and wliieli the 
 eviileiiee slieweil li 111 lieeii t.ikeli into ennsiiler.i- 
 tion in Hittlin^' tli>^ amount to lie piid liy the 
 ^DVeinineiit on t.ikin^ |io>sessioii of tlm 1 imls. 
 Ill ri ih, W'l I'iiiiil CciiKtl Eiiliininiiriit -Filili v. 
 .!/<• /;./.•, '_'!» Chy. i:!!l. 
 
 When laiiil is taken under authority of lei/is 
 l.itive |iidvisions similar to ItevisiMl St.itiites of 
 Nova .Scotia, 4tli .Serit:s, e. ;{li s. 10 t;t se(|., the 
 t'oiii|iens,itioii money as regards tlic! e:i|i.ieit.y of 
 married women to deal with it is still to lie re 
 ganleil in cuiiity as land, hnirini/ v. Kkiii, .'< 
 
 .s. c. i;. :«•_>. 
 
 See .also Ti/lti V. '/'/(. (Jiikii, ~ S. C. It. (i.'il. 
 
 CON'SIDKItATION. 
 
 I. In I5II.I..S (lit Nirn's ,S'.,' r,ii,i,s of V.%- 
 ciUMii'. ANii I'komissoicv Noriw. 
 
 II. In I'.ii.i.soi Sm.kouCii vrrm. MmtriurjK.s 
 Sfr Hij.i.s (IK Sam: and UHA'rrKi. 
 Ml litre \^^,v.A. 
 
 II!. In Con ritAcr.s —.'>(<• Contkact.s. 
 
 I\'. lNVDK.(.(rACV OK— .S'cc FllAl'D AND Ml.SUK- 
 I'ltKSKNrATION. 
 
 V. In I''i; Arinii.KNT (Jonvkvanciw — Ser. 
 FKAiiin.KNr (J(.nvi:van('k.s. 
 
 CON.STITUTIOXAL L.\W. 
 
 I. ImPIIIIIAI. I'^NAcrMKNIS, 114. 
 
 II. ('(iNsrirmoNAi.iTT OK SrA'ri!TK.s. 
 i. (li'iii-ntllij, 1 14. 
 •_». Uiidir liiilUh .Voiili A iivrim Act, 1 15. 
 
 (.'( >M I'KOM ISI N< ; c i; I .\| 1 N W. OFFKXCK. 
 
 I'riiiiiisHory note ^;iven for the |iur|iose of uoni- 
 liriimi^iiiL; a criminal oll'i nee : lleld void. See 
 Jiillw l!i,l,l,ll it il.r., •_'(». It. •.'.'i, p. SI. 
 
 COMPUTATION OF TIMK. 
 
 Sit' TiMK. 
 
 CONFESSION OF .HIDdMFNT. 
 iS't't (JouNovrr. 
 
 I. ImI'KUIAI, l',NArrMKNr.S. 
 
 (Jil.re, whethertlioTreatinj,' Act 7 Will. HI. 
 v.. 4 is ill foret! in this jirovinei'. /)iiiit/iin Elee- 
 Hull Cud- V. /{riKlii; 1 II. v.. C. •-'()."). 
 
 Ci'rtaiii eliarj,'es haviii;,' 1 n |in!fcrreil ai;ain8t 
 
 a eounty court jiidi,'e, a (Mimmission wis issiiotl 
 iiiidi.'r till! (treat .Se.il of Canad.a, reciting these 
 tacts and th(! provisioiiH of 'J'i (too. III. c. 75 
 ( Imp. ) and direc;tiii>/ the comaiiisiouiTi to exa- 
 mine into the ehar^^es, and for that purpose to 
 siimmon witnesses and re plire tlleiil to )/i>'e 
 evidence on oath and |irodiiiH! papers; ami to 
 iviiort thei-eiipoii. The empiiry proeeedetl, iiliil 
 .a motion was made for a pro))iiiition : Hold, 
 tli.it eni|iiiri(!s under the Imperial .\et sh(,iilil be 
 m.nle lief ore till! liovernor (i.'iieral in eouiieil, ami 
 th(' authority eould not he dide.,'ited, nor on- 
 ipiiry upon oath .iiithori/ed by eoiiiiiiissioil : — 
 lleld, also, that the coiuinissioii eo ild not bu 
 support(!d at common law, for it orealoil a court 
 for heari'i;^ .111(1 empiirini^ into oU'eiKies without 
 I deteriniiiiiiL,'. /'(S/iiiri; If! (i. IV 471. 
 
 See also T/ir (lioniinii Itni/ Triiin/inrtntinii (Jo. 
 I V. FiM/ii'i; '21 ( 'hy. ;14(! ; 5 A. 11. 3S:{ ; Muwat v. 
 I Mit-W, 5 S. C. k. (i(i. 
 
 II. ('i)NsriTirrioNALiTV ok Srvri'TK.s. 
 
 I . di'iii rally. 
 
 It wouhi lie iineonstitutiiina! for the parliainont 
 of (Canada Id piss an Art, riMideriii'.; ('anidiaii 
 sulijeets iiid ('inuiian eorporations sulijeet to 
 such laws .as mi;,'lit he ])asseii iiy the con^resa o< 
 the Ciiited .StateH ; in f.iut an aiidicatioii of 
 sovereignty ineonsisteut with the relations of 
 ( '.iiiada to the eiii|iire of which it lorinii a p.art. 
 i'/ii liiti niiiiiiiiiiil H'-iil'ii' Co. V. The. Vanadu 
 Huutli.ni A', ir. Co., 'JSChy. 114. 
 
 
 
 
 
 
115 
 
 CONSTITl'TIONAL LAW. 
 
 m; 
 
 I'rr .Stimin iiiiil I'l.uiiiicr, .1.1. 'I'lu.' .">uiii( iiid 
 Court (iiinlil luvir, ixi i |il in cumh uluii micli 
 .liljllilir.itloli in iliili.s|ii linalili' to tile ilui ihioll iit 
 a r;illi<i', to |il'<<|i(p||ll( c Upoli tliii ciiliHtitlltioIiiil 
 |iii\M r ol II li jji.-latiiii' to |iiinK .1 Klatutu. I.iiniir 
 V. Uihli'uy W fs. ('. I!. .".'). 
 
 •J. t'mlif /tri'ixli .Vi-i/A Awnint A'f, I HUT. 
 
 Ili'lil, fiillowiiit; tliii la.Mi- ol' till iniiiliii-'siolK In 
 of till' Colioiiru I own 'rni^l, •.'•-' ( liy. .'ITT, tliat 
 till' riiiiiiiiiH.-'ioiii r.H ol till' 'Inroiilo liailMiiii' uiic 
 iMililliil to roni|iriiH.itiiiii lor tlnir ml viicn, ami 
 
 tlllM, ullc till 1 till liarlinlir ImIii||j;ii1 to llic I'n 
 
 iiiiniiin or I'loviiii i.tl I io\ rriiiinnt, iiA ill t III' I \ I lit 
 (it it liriiiK tniiiiil til III Imi).' to till' jioiiiinioii, ii 
 III II it lie .'i.^-iilnril that tlii' I loiiiiiiinli ( iov i I llliii'iit 
 int< niU'ii llir rolliliii.-'Moliil'N to lit' hllliji'i't to till' 
 l.iW ol till' piiAinri' ill uliii'li till' tlii.->l wan to In' 
 a iniilllAtrlril. //' 'I'lifi'iilii lldiliiiiu- ('niiiiiii.i- 
 x/(i«i/-.i, '.'H < 'll>. I'.C). 
 
 Ill III, that .-. ;iiil tlici i:i \ lit. r. 'J7 < ». , anii'liil- 
 111^ till' A^M'^^nllllt .-Vrt, « lis not ultl'll vin'Nof 
 till' li'iiiwlat lire. In n .Sui'/i n;' SiiUlaiid ( \iii<l- 
 ,l„iii M,„hia,i, (■„., HI f. I'. :>.v.'. 
 
 Till' |l|ovi^i^pll.■» III' till' 31 Vict. I'. .">, I'olll., asitii 
 
 warcliniiMc III < ijitn ilo Hot iiivaili) tlu! tiiiutiniii 
 ol till! |iriiviiirial !ri,'i.-.latiiri' lij an iiili'i'ti'iiiirL' 
 with " iiii'i rit.\ .'inil rivil iii;ht«" in the |iio 
 viiu'f. Siiill/i V. ■//(- Ml rr/iiiii/s' IliiiiL; 'J.S Cliy. 
 I)'.''.l. Ill till' «'oiii't of .Xiipi'iil Arniiiiir, .1., was 
 lit a iliU'i'iiiit ii|iiniiiii, S A. It. I">. Sn; this I'linr 
 ill .Siqiri'iiio Colli I not yit ri'poitiil, -0 C. |„ .1. 
 ('•(i. 
 
 Ili'lil, tli.it M'ltion KID of thu Doniinioii Kli'i'- 
 
 tioiiH .\rt, 
 il 
 
 ;{7 \ lit. 
 
 \), \\ hall uivi II a rivil 
 
 ii'iiicily liy .'u'tinn ol ili lit or inlm luatioii 
 
 for till 
 
 ri'i'ovi'iy o 
 of lii'ilii rv. 'Vi 
 
 I till' |M 
 
 Itii 
 
 illi|ii>!4ril f.ir till' Olll'lll'l' 
 
 I'Miiiiiiitti'il ill I'liiitrav) iiliiiii of 
 H. !fj of till' .'Xrt, in not ultra viir.s of thu tloiiii- 
 nioii iiarliaimiif. I><.!il,- v. //(//. Wl < '. I'. ti.TJ. ■'i'i,"|V,'i 
 
 tluirfoi'i' ilii not coiillii't with till' |iowrr of jiro- 
 III ity ami civil rijjIilH confcrrt'il liy ncc. !t'J, No. 
 \\\. ' Ih. 
 
 ( 'oiiKC(|iU'iitly :iil Vi.'t. 0. '.M « Int.), which deals 
 with |iiilii'ir.s ot iiiNiiraiii'i' iiili ml intoor in forcu 
 ill till I'liiv iiii'i' of (•iitariii for insuring; |ii'o|icrty 
 Mitiiati' tlii'ii'in ayaiiist liii.inil iniMirilirs certain 
 coiiilitioiiN w liirli all' to im'in |i:irt of mihIi (Con- 
 tra. ts, in a valiil .\i't, a|i|ilii'alilt' to the I'liiitrai'ts 
 of all Hiich iiiHuri'i'H in Oiit'irio, iiii'linliii^ cor 
 |iiiratliiii.'H aiiil roiii|iaiiii'>, w lialcv ir may lie their 
 iiii^in, wlielhi'i iiiriir|Miiati il liy ririlLsh author- 
 ity or liy lureign or loluiiial authority. Il>. 
 
 Ilelil, fiirtliei', that the :'iiil Ciitaiio Act lit 
 not illl'oll^ii^tl■llt with I •oiiiinion .Act, IIS \'ict. f. 
 'J(l, which r<'i|uires all iiiMirance colii|ianiL>8, 
 whether iiicoi|>oi','tteil liy loiei^'ii, ihiniinioii, or 
 |ii'iiviiicial aiitliiii ity, to olitain a liciiiKe tii lie 
 ^'I'.'intiil only ii|ion i iini|>liaiii'e w ith tlio comli 
 lioii.s |iiu.iiril'eil liy till' .\i't. III. 
 
 The lilaintiir, lieiiiv: thu Imliler of a ilelieiiture 
 
 , iH.slliiil liv the II. it O. IJ.iilw.lV < 'o. Illlilel''.';* \'ict. 
 
 If. HI'.), Mieil tlielinll. Uy tlie'JT \iet. c. .ST, the 
 
 ! railway i'iiiii|iaiiy wi re aulliori/ril to in^iieil [irc- 
 
 feli'lltl.ll IiiiIhIh, anil to I'Xecilte a nioi't;i,i;4e to a 
 
 trustee to secure li;iy llielit tlliliof. The rallw.'lV, 
 
 liitiiiL, lit the time of coiifeili r.-itioii a local Work, 
 
 the .'tl N'ict. c. 11, (>., W.is |iisseil, which lecitiil 
 
 ' that the tilistei w.is ill |.o>si»iii|i iiihI alioiit tn 
 
 loll I'll IMC the mill t:;:i;.'e, aiiil .iiiinnyst i it her thing's, 
 
 ilirecteil that the ijilielit lllcs Itliilein calleil 
 
 orilinary Imnils) slmulil lie eiiiivcrtcil into htm k 
 
 at a curtain rate mi the iloll.ir; ami that the 
 
 liiiMcis thciriif .slioiilil hate no iitliir claim mi 
 
 the ciiiii|iany than for ciuiveisimi of tluir ilulien- 
 
 tiiicM into Mtock. hy the 11 N'iet. c. ;m, I>., the 
 
 Ii, & ( >. Hail way Co. ami thi'ilefemlant eiiiii|iiiny 
 
 Were aiual^j.'ini itcil. The ilefcml.'iiit^ set ll|)tll;it 
 
 their li.'ihility on the ildu iitun ■. in iiiiistion wa.s 
 
 cx'in-iiii'heii hy tin: .'tl \ ii't. c. U, It., ami tli.'it 
 
 tlie\ \\v\\- Il iilv an 
 
 ll Willi 
 
 to Ii 
 
 the ileliell- 
 
 tiiics in iiXi'haM;;e Im iiiniii 
 
 ll stock till 
 
 'II 
 
 llltH 1 
 
 lueii earnci 
 
 1 tl 
 
 •I'l" 
 
 i:|ilicaliiili that thu .\i't was not liillilin<; 
 it w'.iH a iirivali .\ct, ami the iilaintill 
 .Si'ctimiH <.»l anil !C_' of the H. N. A. Act of was not iianieil tlurein, nor a iielitimier tlierefor, 
 IK(i7 iiiiist in ri>;.'iiil to the chiKHts of sulijicts imr were his rights ..pi iially taUeii aw. ly tlierel.y 
 
 generally ilc-ci ilieil in hcc. '.H In 
 anil the liili^lla;;! of nlle ilitcrj 
 
 reail tii);etlier, 
 
 •''oiirtli iciilicatioii, that the .\ct was ultra vires. 
 
 neecHsarv, iiioi 
 
 hliiil 
 
 reconcile the ris|iecti\i' [iiiwcrs they eoiitain 
 
 teriiietcil anil where ^ ecauHu the ileliciitiire was jiayalile ill l.iinilon, 
 , I'ln^lanil, ami was tin in ilmniciliateil, ami tin 
 I lioliler resi'leil there >il the time of the passilij^of 
 
 ly that 111 the other so as to 
 am 
 
 ilcciileil as l.est it cai 
 
 ve ellect to all of tliciii. Ilach i|iiestion shoulil *•'»' •^''''i t'eymnl the juiisilicti the < Intario 
 
 legislature: Ilelil, mi ileinurrci, thirilreplieatimi 
 liul ; for, IIioulIi the Mntario .Act was in the 
 
 •ly tl 
 
 liir^'i 
 of tl 
 
 < 'llllllilll V 
 
 I'lirsiiiiH, 
 
 n witlioiit entering' more 
 mil is iiicessnry upon an inteipi'i tatimi 
 
 II' statute 
 I'l 
 
 Tin I ili 
 
 IIKKIKIIil 
 
 (\ 
 
 Till' V 
 
 nun lii'<il/iiiici 
 
 7 .App. < 'a.s. !••) 
 
 4.S. C. I! 
 
 nature of a private .Act, it siilhcieiitly iclerruil to 
 the plaintill liy releiriiij,' to the class of lioiiil- 
 holili IS to which he liclmi^eil, ami that ho was 
 therefore lioiiml then liy :- llilil, also, fourth 
 
 lU'hl that in .No. I.'l of sec. !»'.* the worils '• pro- replication liail, for the local legislatures were not 
 
 perty ami civil ri^jlits i 
 
 the I 
 
 idvince" incluile restrictnl liy tli 
 
 |ii'ii|ierty ami civi 
 
 il 
 
 rights arising Irmii emitract, (which are not in rights in the province " to legislation respect 
 express terms incliiileil miller sec. ",ll) anil arc not limuls lielil therein 
 
 limiteil to such lights only a.s llow from the la 
 
 ll that 
 
 ilelits 
 
 ing 
 
 0. g. , the btatllH ot per^ 
 
 Ih. 
 
 .thcr I 
 
 ililigati* 
 
 llliori/.nl to lie eiintriu'teil 
 
 iimlir a local .\ct, passeil in I'cl.itioii to a matter 
 
 In No. 2 of Bee. (11 the wonls "regulation of "'['"" "".' 1"'"' 
 
 tiai 
 
 I nliillierce, 
 
 hull 
 
 litii 
 
 ll 
 
 arrange 
 
 ilelits may 
 
 ll. 
 
 lit 
 
 if th 
 witl 
 
 ll Icuislati 
 
 Hiich 
 
 Hint .Acts of 
 
 iiients ill ll giiril to triiile lei|iiiiiiig the saiietion 
 if rarlianii lit, itgiilatinli of tiaile in matters of 
 
 the same Icgislatuie, iiiitw ithstaiiiling that liy a 
 lictimi of law tiny may lie ilomii iieil out of the 
 
 iter-provincial cmicern, am 
 
 .1 it 
 
 may 
 
 111 
 
 genera 
 
 I pro\inii'. ,/iiiii.s V. <'iiiitiilii < I iilral I'. IT. <' 
 ' ..... 11 .1.-.. 
 
 Hi i). I 
 
 'M 
 
 rci, i>. 
 
 le llseil III I 
 
 priiVli 
 
 ngulatimiof tiaile allei'tiiig the w liole I lominimi 
 
 lull ilii not inclmle the reuiilatimi of tliei.'iiiitracts llel.l, that the Act .'t I \'ict. e. 
 
 of a particular luiaiiiess or traile, siilIi as the inLsi- ing for the taking of eviileiice to 1 
 
 iiuiM of tire iii.suiancc in a Hingle province, ami countrieH is not ultra \ ires of the hiiininioii I'ar- 
 
 itlior 
 
 f 
 
 17 
 
17 
 
 CUNSTITUTIONAI. LAW. 
 
 wa 
 
 liiiini'iit, I'lir tlio taking III' I'viilniicr in mu: of tin' 
 iiroviiKTH I'lir list' ill I'mri^'ii triiiuimls is imt ii nuIi- 
 jurt wliiill is iiHsi^liril til tin; cxitluMivi' li';{i.-iliiti\r 
 .iiltliiii'ity III tlir |ii'iiviiK'(% liy h. D'JiiI' tin; ISiitisli 
 Niii'tii Aiiii'ii''.'! /\<'t, iiiiiHiiiui'li iiH sm.'li priicicil 
 iii^M ;iri' III t'xti'it |iiiiviiiciiki iii^i'tiiK'iii'c, luiil ilii 
 not I'i'l.'ito to civil riglitH iii tlic iiioviiu'i!. AV 
 Wviltinll mill liiHiH, A O. K., Cliy. I). 7i:». 
 
 riiwcis III' lll<^■ll li';.'iHlritiiri's to a|i|ioiiit (,>in;i'nV 
 Colllisrl. LitliTS |iatrllt III plt.'i'nii'licu. Sl'i) l,i- 
 
 i.nii- V. A'/v./u'i. ;< s. ('. i{. 57:1. 
 
 'I'lir hnlllilliiin ( 'olltliivoltc'l l'',lui:tiiilis Ai't III' 
 j.STI, .'I" V'l't., c. I(>, I ),, iloi.'M lint iiintlaVfiiii Ht!C. 
 '.".', siilisrc. I I III' tlir IliitiHil Niirtli AiMiliru Act, 
 18(17. Tlic Hiiiil Niili Miction iIols nut nlatu In 
 rlci'timi |"tili(inH, wliilr .ici'. 11 nl' thrManir .\i't 
 I'l^si'i-vnl to till' |iarliaiiiriit nl' ('aiiail;» tlir (mwi'i' 
 of I'l't'iliii;; a jiii'isiiii'tion to ili'li'iiiiiiiu tlitiii. 
 'I'l I' |i.'ii'liaiiirnt III ( 'aiiaila lias |in\>rr to cnniiiiit 
 ^inli jiiiiMilirlinn to cxi.stiiig |irnviiii'i,il coiiitH. 
 .S|Hri.'il Icavr ri'l'iisi'il to apjiial linm two con- 
 iiinrht JMil:;ini'iits nl' tin; cniirtH in Caiiaila, ^ 
 .illillliilin till' iniii|irli>iii.'y anil vaiiilily nl' tlir 
 ^anl All 111 I.S7I ; it aiqifai iiij; thai linn; ^^a^<lln 
 
 ?Ulll.sl.'inl i.ll i|lll'.slinn l'i:i|l|il'in^ to lir ilutl'I'lllilll'il, 
 
 Mill' any ilmilit of tin' Noiiinlin'ss of tlir ili'riHinii.s, 
 iioi' ,'tny I'c.'ison tn ;i|i|ii'i'ln'nil ililliriilty nr ilistur 
 li.iiu'i; li'oiii li'.'ivin^ tlio ili'i'isioii.s iintoiirlicil. 
 i'i(/i'/( V. I.tiiiijliiis, r> Aiip. ( 'as. 1 1.") ; ;{ S. ( '. I! . I . 
 
 Ilclil, that to Vii't. u. '2\, ust'ililisliin^ a loiii't 
 of iiiai'iliiiir jiii'iHilictioii for tin; in'oviiin; of <in- 
 tai'io i-i iiili'a vires of tin' Itoininion |iaili.iiiic'iit. 
 r/ir I'ldui, .Siiiit/i V. lit nil, 4 S. ('. 1;. MH. 
 
 I'lirsiiaiil to the Local Courts .\i't, 11. .*<. O. c. 
 i'l, s, |i|, rt si'i|., till' cniiiitirs of Miihlli M'x ami 
 Uinililon wrir |ii'iM'laiiiii'il liy the l.icuti'iiaiit- 
 • iiivi'riior as a roiinty i;ourt ilistrict. Hy h. 17, ill 
 ■^iicli a ilisli'ii'l llii'si'Viral I'oiiiity 0011 its, ilit isioii 
 coiirls, iVc, shall lie Inlil liy the jnilj^is in tiie 
 ilistrii'l ill rotation. My tiie liivisimi Courts 
 Act, It. S. O. 1'. 17, M. I'.l, the ilivisinii I'oiirts 
 itliall lie |iresiileil(iver liy tlieeoiinty I'olirt .iinlj,'es 
 III their |is|ie(tivi! enmities. .\ll onler for the 
 eoliiliiilt.il of the ileleiiilaiit Was inaile liy tin; 
 jiiil^'i; of tile I'oiinty eiiiirt of the county of 
 Li.nlitoii, sitting in a ilivision eoiirt in tin; 
 I'oiiiity III .Miihllisex iiniler the iirovisiniis of the 
 Local Courts .Act. A niotion for .'i |iriihiliitinii 
 waH III, nil' on tin; ^'loiinil that that eiiaetiiieiit 
 waH ultra vires : ll(;lil, .\riiiiiiii', .1., ilisseiitiii);, 
 that the |il'iivilieial legislature Ii.ih eoliililete juris- 
 ilictioii over tin; ilivision courts, inclinliiiK' the 
 aii|iiiintlllillt of olliecru to pruHiile over them : 
 that the leallieil juil;,'e acteil in the .Miililleaex 
 ilivision eniirt as one of tin; iiers.iiis ili'sij;iiatc(l 
 hy the legislature to piesiile over it, ami having; 
 regard to tin; eiiaetnieiit ill i|Uestioii, solely in 
 its lieariiif^ mi ilivision courts, it was lint ultra 
 viii'B. Ji, 1; Wilson \. Mraiiiri;'2 i}. IL, <^ U. 
 I). 118. 
 
 IVr .\iliiiiiii', J. -.See. 1,3 of tliu Local Courts 
 Act is ultra vires. The iirnvincial IcLlislatiire 
 liaviiij^ no jiower to a(i|ioint cnuiily cniirt 
 juilj^es, neither can aiithori/c the tinvernor- 
 <<eiieral to ajipniiit oin; liy onler .'is eii.'icteil (the 
 aiiiioiiiliiiciit lieiiij,' properly iiiaile liy letters 
 patent iimler the f,'ieat se.'il), nor ciii it ilepiito a 
 county court juilj.'e to iioiniliate another Juil^'e to 
 take his place as eiiai;teil. 'J'liJ dear anil sole 
 uUect III «. 17 is to appoint tin; ,iinlj;i' of each 
 county court in any (iintrict judye of all the other 
 
 coiintieH which is iiltr.i vires. 'I'lie provimiiij 
 
 le^isl;ilui'e ll.ls no power to appoint the jinl^esnf 
 the ilivisinii ciilll ts ; Imt it lias not yet assiiineil 
 tn ill) HO, ami ill this case the jl|i|;4<- acteil solely 
 
 Ity virtue of lieiiig jml^'c of the coiintv court of 
 the cniinty of Lanilitnii. Ulnl as such assi^neil to 
 pi'lfol'lii the duties III thejlldm' of tin; county 
 (;iiurt of .Middlesex, ami wiw thereforu acting 
 without ituthoi'ity. /I>. 
 
 Til.) :w Vict. c. '-••.', s. 'J (().); :i;» vi,t. c i'.», 
 
 s. I (<».), ami U. S. (». c. •»•-', s. •.', assiiining to 
 repe il C, S. I'. C. c. N, and C. .S. f. C. c. l."», 
 H. .'<, and to aliiilisli the eniirt ui iiiipeachiiieiit for 
 the trial of County • 'mirt jiid^r-,, and regulate 
 their tenure nf nllice arc ultra vins the provin- 
 cial legisl.itiiii'. /t'l' Si/iiii 1; U'l ^}. U. 17 L 
 
 llidd, that the legisL-ituri' of the pi'oviln:u of 
 Dntarin Innl pnwer iimler No. 14, of h. !I'J, It. N. 
 
 .\ct to piiSH I!. S. ( ». e. 71, pi'iividill'.' Inr tlio 
 ipialilicatinii and appointineiit nf justices of the 
 peace. I{i[i'iiiii\. n<iii,<ll, I (». 1;., (,». 1;. |>. it.-|, 
 
 I'er Spr.iyge, C. ,1. (»., ;ini| Mnriisoll, ,1. A. - 
 ,'^i'ctiiin lllti, III the insolvent .\i'l, \'S',7i, ile.'iling 
 wilh matter of prniciliire iiieiilenl to the law nf 
 li.'iiiUruptcy ami insnlveney, was within the juris- 
 dictinii nf the pallia. Hint nf < 'aiiad.i to eii.'tct. 
 /',,/■ ./ ill v. Slinlils ,1 III, 1; A. Ii. tl;t;t. .Allii'lll- 
 i;il, see liO < !. L. ,1. C"). 
 
 I'er lilirtoli, .1. .\. .Seetinll Kili, which gives 
 I i'rtain creditors an adililiniial reiiicily in the |ii'0' 
 wmial courts for tlie iicox.iy of their ilelitH in 
 full, is ultra vires nl the I'arli.iiiieiit nf Canada ; 
 Imt s. 8, siili s. 7 of tin; Insolvent Act of I.Slit, 
 to the ttailie ell'eet, is still ill force, tile I'arlia 
 nnnt of Caiiiiilii having no power to repeal it. ///. 
 
 I'(;r I'attei'soii, .l..\., it is iniiiiateri.il whether 
 see. \'M\ is ultra vires or imt ; I'nr if the I'arlia- 
 iiieiit of Canada liinl the power to dial with the 
 siiliject of that se'ctinii, it would Ih; liimling, Imt 
 if not, then the sunie eiiactnieiit in s. 8, siili-s. 
 7 of the Act of 18(14, is unrepealed ami in force. 
 //.. 
 
 llehl, that sec. L'4 of 3.-| \ict. e. '-'(i, Doin., 
 the I'aleiit Act, is not ultra vires of the l)o- 
 iniiii'iii Parliament. AUcliiaini v. Mnini, U I'. 
 |{. 47a t^. M. I>. 
 
 (^Iiiaire, where land is taken under an .\ct of 
 the Dniiiinioii Pailianniit, w lietliel the limling of 
 the arliitriitors can lie reviewed under the 
 statute of Ontario, 118 Vict. c. l.%, (). \iiirnH 
 v. Ciinnila SuiUlitvn It. IT. Co., ."i.\. 1!. Vi. 
 
 Hy tlio Doniinion Act \K1 k. .'lit \'iet. c. '2!(, h. 
 44, till! selection nf jurors in criminal cases is 
 autlmriseil to lie in acenrdance with the provin- 
 cial laws, whether passeil liefnri; nr afti;r the 
 coming iiitn force of the M. \. .\. .Act, siilijcct, 
 hnwcver, to any [irovisioii in any Act of the 
 [larlianieiit of Canada, ami in so far as such laws 
 are not inconsistent with any such Act. hy the 
 Provincial Acts 4'J \'ict. c. 14, and 44 \'ict. c, ti, 
 the mode of selection of jurors in criniiiial cases, 
 ;is pmviilcil liy ( '. .S. l', C, c.'fl, as aiininled liy 
 ■J(i \'ict. c. 44, was chaiigeil hy excluding the 
 i;lerk of tile peace as one nf the .selectors, and 
 rei|iiiriii;.' the selection to lie made only fnua 
 those ip:alilicd to serve as jurors whose .Miriiaiiies 
 liegaii with certain alphalietical letters, instead 
 of from tlu! whole liody of tlinse cnmpctciit to 
 serve as previously reipiireil. The jury ilupU'i*- 
 
 
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110 
 
 CONSTITUTIONAL LAW. 
 
 120 
 
 tion v.cre seloctr il undfr those Provincial Acts. 
 Seiiilih,', that tlio .'!l» & ,3.3 Vict. c. '_'!), I)., was 
 not ultra vires of tlio Dominion Failiainciit .as 
 Ijcin;; a dolcpatifin of their iiowi:rs, and th.at tliu 
 scli'i-tion made in aceordancc with tlie Provincial 
 Ai^ts, was valid. Hcijina v. O'lionrke, 32 C. P. 
 388. 
 
 Qun'rc, whether the selection and summoning 
 of juror-s is a matter of procedure, or rehates to 
 the constitution and organization of criminal 
 courts. H). 
 
 By 32 &'.33 Vict. c. 20 ,s. 44, D., every person 
 qualified and summoned to serve .af< a juror in 
 criminal cases .according to the law in any pro- 
 vince is declared to be (jualiiied to serve in such 
 province, wliether such laws were )' ~s.'^ I befcre 
 the B. N. A. Act, or after it, snbj •• N, .tnd in 
 so far .as such laws are not inconsistt,i;t Av^thany 
 Act of the Parli.ament of Can.id.a. By 4i' *. ■ 
 14 and 44 Vict. c. 0, O., the mode of .- Ic'j-i ig 
 jurors in .all cases formerly regul.ated by !.'C V'.o;. 
 o. 44 wiis cliangcd. Tlie jury was electoi' ooru 
 ing to the Ontario statutes, and the ^.';s>lnc^ 
 cliallenged the array, to which the ciown de- 
 murred, .and the judgment w.as given for the 
 crown. Tlio prisoner was found guilty and sen- 
 tenced .and he then brought error : — Held, per 
 Hagarty, C. J., that the Dominion statute was 
 not ultra vires by reason of its adopting and ap- 
 plying the laws of Ontario as to jurors to criminal 
 procedure. li('(jina v. O'Rourk-. 1 O. K., Q. B. 
 D. 464. 
 
 Qua're, can the Dominion parliament give an 
 appeal in a case in which tlie legislature of a 
 province h.as expres.sly denied it. JJamoii v. 
 Jfan/uin, 3 S. C. K. 251. 
 
 Held, 1, that the Act of the p.arli.amcnt of Can- 
 ad,i, 41 Vict. c. IC, " An Act respecting tlie traf- 
 fic in intoxicating liquors" cited as the " C.an.ada 
 Temper.ance Act, 1878," is within the legisLative 
 capacity of that body. The Mayor, <[•«., of 
 Fmlimcton v. The Queen, 3 S. C. R. SO."). 
 
 2. That by the British North America Act, 
 1867, plenary powers of legislation .are given to 
 the Parliament of Canada over all matters within 
 the scope of its jurisdiction, and th.at they ni.ay 
 be exercised cither absolutely or conditionally ; 
 in the latter case the legislation m.ay be m.ade to 
 depend upon some subsequent event, and he 
 brought into force in one part of the Dominion 
 and not in the other. Ih. 
 
 3. That under subs. 2 of s. 91, B. N. A. Act, 
 1867, " regulation of triide and commerce," the 
 p.arli.ament of Canada alone has the power of pro- 
 hibiting the traflic in intoxicating liquors in the 
 Dominion or in any part of it, and the court has 
 no right whatever to enquire what motive in- 
 duced parliament to exercise its powers. Henry, 
 J., dissenting. Ih. 
 
 Qa<Tre, per Cameron, J., as to the power of 
 the loc,al legislature to limit or authorize muni- 
 cipalities to limit the number of licenses and .as 
 to the effect of the decision of tlio Supremo 
 Court in City of Fredericton v. The Queen, 3 S. 
 C. R. 505. Jicijina v. Howard, 45 Q. B. 346. 
 
 Held, that the Canada Temperance Act, 1878, 
 which, in effect, wherever throughout the IJo- 
 niiniou it is put in force, uniformly prohibits 
 the sale of intoxicating liquors, except iu whole- 
 
 sale quantities, or for certain specified purposes, 
 regulates the traffic in the excepted cases, makes 
 sales of li(iuors in violation of the prohibitions 
 and regulations contained iu the Act criminal 
 offences, punishiible by line, and for the thii d or 
 subsc(iueiit offence by iniprisoninent, is within 
 the legislative competence of the Dominion Par- 
 liament Jiun'iell v. The Queen, 7 App. Cas. 829. 
 
 The objects and scope of the Act are general, 
 viz : to promote teniperiincc by means of ." uni- 
 forni law throughout the Dominion. They re- 
 l.ato to tlio peace, order, and good government of 
 Canada, and not to the class of subjects, " pro- 
 perty and civil rights." Provision for the special 
 application of tiie Act to particular places does 
 not alter its character .as general legislation. //). 
 
 Subjects which in one aspect and for one pur- 
 pose fall within sec. 92 of the Brit'sh North 
 America Act, 1867, may in .another aspect and 
 for another purpose fall within sec. 91. Russell 
 I'. Tlie Queen, 7 App. C!as. 829, explained and 
 .a])proved:^Held, that the Liquor License Act of 
 1877,, R. S. O., c. 141 which in respect of sees. 4 
 and 5, mfikes regulations in the nature of police or 
 municipal regulations of a merely local character 
 for the good government of taverns, &c., does 
 not in respect of those sections interfere with 
 " the general regulation of tr.ade or commerce." 
 but comes within Nos. 8, 1.5, and 16, of sec. 92 of 
 the Act of 1867, and is witliin tlie powers of the 
 Provincial Legislature. Hodije v. The Queen, 9 
 App. Cas. 117. 
 
 Held further, that the local legislature had 
 power by the said Act of 1867, to entrust to a 
 board of commissioners authority to enact regu- 
 lations of the above character, and thereby to 
 create offences and annex penalties thereto. Jb. 
 
 "Imprisonment" in No. 1.") of sec. 92 of the Act 
 of 1867, means imprisonment with or without 
 hard labour. //(. <V. C sub.nom, ; Jinjinnv. llod/je, 
 L'a/ina v. Frawlei/, 7 A. K. 246 : reversing .S'. (J.; 
 46 Q. B. 141, 153; netihia v. Allbrii/ht, 9 P. R. 
 25 ; Beijlnn v. Pij>e, 1 O. R. 43. 
 
 By clause 8 of the 92nd section of the B. N. 
 A. Act, exclusive power is given to the provin- 
 cial legislatures to make laws in relation to 
 "municipal institutions in the province," and 
 clause 9 gives similar power in relation to 
 "shop, saloon, tavern, auctioneer, and other 
 licenses in order to the raising of a revenue for 
 provincial, local, or municipal purposes " Per 
 Spragge, C. .T., that clause 9 is cumulative to 
 clause 8, and was intended to authoriie provin- 
 ci.al legislation in relation to licenses, for the pur- 
 pose of r.aising a revenue as well as for t^ie regu- 
 l.ation of matters of police. Ifegina v. Hodye ; 
 lieyina v. Fraioky, 7 A. R. 246. 
 
 Held, that the debentures in suit which hatl 
 been issued under the .autliority of the Canadian 
 Act (16 Vict. c. 2.35), by tlie trustees of the 
 Quebec turnpike roads, appointed under Ordin- 
 ance, 4 Vict., c. 17, and empowered thereby to 
 borrow moneys " on the credit and security of 
 the tolls thereby authorised to be imposed, and 
 of otlier moneys wliich might come into the 
 possession and be at the disposal of the said 
 trustees, under and by virtue of the Ordinance, 
 and not to be paid out of or ciiargeable against 
 the general revenue of this province," did not 
 create a liability on the part of the province, 
 
 

 120 
 
 )se8, 
 ikes 
 ions 
 liiml 
 tl or 
 thin 
 I'iir- 
 S29. 
 
 eral, 
 iiiii- 
 
 re- 
 iit of 
 pro- 
 ecial 
 does 
 
 lb. 
 
 121 
 
 CONSTITUTIONAL LAW. 
 
 122 
 
 in respect of either the principal or inturcst 
 thereof. The Queen v. Belkaii, 7 App. Ciis. 
 473; 7 S. C. E. 53. 
 
 Held, further, that the province of Canada 
 had not by its eoiuluct and legi.slation rocoi,'- 
 nised its liability to pay the same. Tlie 7th 
 section of the Act, 10 Vict., expressly took away 
 the p')\ver whicli lia<l been conferred by the '27th 
 section of tlie Ordinance to make advances out 
 of provincial funds for the i)aynient of interest, 
 and by its proviso di.stingni.shcd these debentures 
 from those which had a provincial guarantee, lb. 
 
 Held that lands in ('anada escheated to the 
 crown for defect of heirs belong to the Prov- 
 ince in which they are situate and not to the Do- 
 minion. Tlie AlloriKii-Gctieral of Onfurio v. 
 Mercer, 8 App. Cas. 7(J7 ; 5 8. C. li. 538. 
 
 At the date of passing the B. N. A. Act, 18(>7, 
 the revenue arising from all escheats to the 
 crown within the then Province of Canada, was 
 subject to the dis]josal and apjtropriation of the 
 Canadian legislature and not of the erf)wn. 
 Although sec. 10'2 of the Act imposed u])on tlie 
 dominion the charge of the general public re- 
 venue as then existing of the iirovinces, yet by 
 sec. lO'J the casual revenue arising from lands 
 escheated to the crown after the union was re- 
 served to tlie ])rovinces, the words "lands, mines, 
 minerals, and royalties" therein including, ac- 
 cording to their true construction, royalties in 
 respect of lands such as escheats. lb. 
 
 Held, that the Canada Central railway ac(|iiir- 
 ed under their charter granted by the Act 10 k 
 'JO Vict. c. 11'2, and sul)se(]Uent Acts relating 
 thereto passed prior to confederation the right, 
 which was preserved by s. 10!) of the I?. N. A. 
 Act, to enter on the crown lands in the province 
 of Ontario on the line of the railway iiichi(le<l in 
 a subse(|uent timber license granted to the plain- 
 tiff, and to cut the timlier within six rods of 
 cither side thereof, without any restriction as to 
 obtaining the consent of tlie Lieutenant-Gover- 
 nor in council. Buolli v, Mc In tyre et «/., 31 C. 
 P. 183. 
 
 Scmblo, that in the case of railway companies 
 within tlie exclusive jurisdiction of the domi- 
 nion parliament, it has the power to confer 
 upon such companies the right of constructing 
 their lines through the crown lands of the several 
 provinces through \Nhich they may pass, with- 
 out such consent of the Lieuteiiant-(iovernor in 
 council, lb. See also Foran v. Mrlnli/re et al 
 45 Q. B. 288. 
 
 By 18 Vict. c. 33, the Grand Junction Uailway 
 Co., which was to run from the town of Peter- 
 borough to Toronto, was, with certain other com- 
 panies, incorjiorated with the (irand Trunk Uail 
 way Co. Xot having been built within the stiini- 
 lated time, the charter of the former coinpaiiy 
 expired, and in May, 1870, theGraiid Trunk kail- 
 way having refused to construct it, an Act was 
 passed by the dominion parliament 33 Met. c. 
 53, dissociating the work from the Grand Trunk 
 Railway Co., and reviving the charter of the 
 Grand Junction Eailway Co. It directed that 
 all the corporate powers originally vested in 
 that company should be vested in certain 
 persons, who should exercise the same as fully 
 as the parties named in the original charter 
 could have done, and extended tlie time for 
 construction. Ou the 23rd of November, of 
 
 tlie same year, the ratepayers of the defen- 
 dant municipality voted in favour of grant- 
 ing the company a bonus of .i!!75,000, but the by- 
 law v/as never read a third time. At the time the 
 municipality had no power to grant a bimus to a 
 railway company, but subsequently, in 1871, by 
 34 Viet. c. 48, ()., the by-law \vaa declared as va- 
 lid as if it had been read a third time. It was de- 
 clared to be binding on the eorporatio'i, and 
 they were directed to act upon it and issue de- 
 bentures, as 11 it had been proposed after the 
 Act. On the same day the municipal law was 
 amended so as to empower all inuii'.cipalities to 
 grant aid for similar purposes. 37 Viet. c. 43, 
 O was then passed, amending and consolidat- 
 ing the Acts relating to the plaintifl's railway, 
 but it did not expressly give retrospective vali- 
 dity to anything that had been done, or mention 
 the by-law, and by 39 Vict. c. 71, O. , the time 
 for completion was further extended, and it was 
 directed that none of the by laws should lapse by 
 reason of non-comidetion within the time pre- 
 viously lixed. Held, reversing the judgment of 
 the Q. B. 45 Q. B. 302, that the Grand Junction 
 Railway Co., being alocal work of the province of 
 Ontario, the Act 33 Vict. c. 53, was ultra vires of 
 the dominion parliament, and that the company 
 were therefore not in existence when the defen- 
 dants granted the bonus, or when the Act 34 Vict, 
 c. 48, validating the by-law was passed ; and as 
 37 Vict. c. 43, O , which was the lirst Act by a 
 legislature having power to incorporate them, did 
 not legalize the by-law in favcmrof the ]>',iintitrs, 
 they were not entitled to a, mandamus to compel 
 the delivery of the debentures. Re Gr<uul .fiiiic- 
 /ion A'dihati/ v. The (Jounti) of Peterboroinjh, (i 
 
 A. n. ;«!). ' 
 
 Held, also that, the railway being wholly with- 
 in the province of Ontario, the dominion parlia- 
 ment had no ])ower, under the B. N. A. Act, to 
 incorporate the company without expressly de- 
 claring the work to lie <uie for the general ad- 
 vantage of Caiu'da or of two or more of the 
 provinces, lb. 
 
 On 1st January, 1874, the minister of marine 
 and fisheries of Canada, purporting to .act under 
 the powers conferred upon him by s. 2, c. 00, 31 
 Vict., executed on behalf of Her Majesty to the 
 suppliant an instrument called a lease of tishery, 
 whereby Her Majesty purported to lease to the 
 sup|iliant for nine years a certain portion of the 
 South West Miramiehi liiverinNcw Brunswick 
 for the purpose of ily-tishing for salmon therein. 
 The locus in quo being thus described in the 
 special case agreed to by the parties : — " Price's 
 Bend is about forty or forty-live miles above the 
 ebb and flow of the tide. The stream for the 
 greater part from this point upward is navigable, 
 for canoes, small boats. Hat-bottomed scows, logs 
 and timber. Logs are usually driven down the 
 river in high water in the spring and fall. The 
 stream is rapid. During summer it is in some 
 places on the bars very shallow." Certain per- 
 sons who had received conveyances of a portion 
 of the river, and who, under such conveyances, 
 claimed the exclusive right of fishing in such por- 
 tion, interrupted the suppliant in the enjoyment 
 of his Kshiiig under the lease granted to him, 
 and put him to certain expenses in endeavouring 
 to assert ami defend his claim to the ownership 
 of the lishing of that portion of the river includ- 
 ed in his lease. The su])reme court of New 
 Brunswick having decided adversely to his ex- 
 
 ^i:: 
 
 ^ 
 
 
 h' 
 
123 
 
 CONTRACT. 
 
 124 
 
 I'lii^ive iii,'lit to tinli in virtue of said lease, the 
 siipjiliaiit presentcil a petition of riglit and 
 ilaini(;d fonijirnsiation from Her Majesty for the 
 loss of Ills tisliing i)ri vileges and for the expenses he 
 Jiad incurred, liy s]ieeial case certain questions ' 
 (which are given in the report) were submitted 
 for the decision of the court, and the exohecjuer 
 court iield inter alia that an exclusive right of ' 
 lishing I'xistiil in the ])arties who had received 
 tlie convcyani/es, and that the minister of marine ' 
 and lish(!ries conseiiuently had no power to grant 
 a lease or license under s. 2 of the Fisheries Act 
 of the ]iortion of tlie river in question, anil in 
 answer to the 8th (juestion, viz. : "where the lands 
 (above tidal water) through which the said river 
 passes are niigrantcd by the crown, could the 
 Nlinister of marine and fisheries lawfullj' issue a 
 Irase of that portion of the river)?" Held, that 
 tlie niinister could not lawfully issue a lease of 
 the bed of the river, but that he could lawfully 
 i.-juc a license to tish as a franchise apart from 
 tl'.J ownership of the soil in that portion of the 
 river. The ajipellnnt thereupon appealed to the 
 «ii])reme court of Canada on the main question : 
 whether or not an exclusive right of fishing did 
 go exist: — Held (aliirming the judgment of the 
 exchequer court) 1st, the general power of regu- 
 lating and protecting the fisheries under the 
 I'.ritish North America Act, 18()7, s. 91, is in the 
 ji.irlianieiitof Canada, but that the license grant- 
 ed by the minister of marine and fisheries of the 
 locus in ,ii ^ was void because said Act only 
 authorize. tLe granting of leases " where the ex- 
 clusive right of tishing does not already exist by 
 law," and in this case the exclusive right of tish- 
 ing belonged to the owners of the laud through 
 winch tliat iiortion of the Miraniichi river Hows. 
 77ie Qiu'cii v. liohi^rUon, ti S. C. R. 51'. 
 
 2nd, That although the public may have in a 
 river, such as the one in question, an easement or 
 right to float rafts or logs down and a right of 
 passage up and down in Canada, &c., wherever 
 the water is sufficiently high to be so used, such 
 right is not inconsistent with an exclusive right 
 of fishing or with the right of the owners of pro- 
 jjcrty opposite their respective lands ad medium 
 iilum aqu.i?. lb. 
 
 3rd. Tliat the rights of fishing in a river, such 
 as is that part of the Miramichi from Price's 
 Bend to its source, are an incident to the grant 
 of the land through which such river tiows, 
 and where such grants have been made there is 
 no authority given by the B. N. A. Act, 1867, to 
 gr.mt a right to fish, and the dominion parlia- 
 m>.'nt has no right to give such authority. Ih. 
 
 4th. Per Ritchie, C. J., and Strong, Fournier 
 and Henry, JJ., (reversing the juc.jment of the 
 exchequer court on the Stn question submitted) 
 that the ungranted lands in the province of New 
 Brunswick being in the crown for the benefit of 
 the people of New Brunswick, the exclusive 
 right to fish follows as an in-ident, and is in the 
 crown as trustee for the ber.ifit of the people of 
 the province, and therefore a license by the 
 niinister of marine and fisheries to fish in streams 
 running through provincial property would be 
 illegal, lb. 
 
 G, (defendant) was in possession of a part of 
 the foreshore of the harbour of Summersiae, and 
 had erected thereon a wharf or block at which 
 vessels miirht unload. H. et al. (the plaintifiTs) 
 brought an action of ejectment to recover posses- 
 
 sion of the saiil foreshore. H. et al. 's title con- 
 sisted of letters jiatent under the great seal of 
 I'rinco Edward Island, dated 30tli August, 1877, 
 by whijh the crown in right of tiic island, and 
 assuming to act in exercise of autlioritj' conferred 
 by a provincial statute, 25 Vict. c. 19, purport- 
 ed to grant to plaintiff in fee simple the land 
 sought to bo recovered in the action : — Hold, 
 that under H. N. A. Act, s. 108, the soil and 
 bud of the foreshore in the harbour of Summer- 
 side belonged to the Crown, as representing the 
 dominion of Canada, an<l therefore the grant 
 under the groat seal of Prince Edward Island to 
 H. et al. was void and inoperative. Jfuliium v. 
 Green, (? S. C. R. 707. 
 
 Under the imperial statute, 14 & 15 Vict, c- 
 fi3, regulating the boundary line between old 
 Canada and New Brunswick, the whole of the 
 bay of Chaleurs is within the j/iesent bfiundaries 
 of the [irovinces of Quebec and New Brunswick, 
 and within the dominion of Canada and the 
 operation of the Fisheries Act, 31 Vict. c. (>0. 
 Therefore the act of drifting for salmon in the 
 bay of Chaleurs, although that drifting may have 
 been more than three miles from either shore of 
 New Brunswick or of Quebec abutting on the 
 bay, is a drifting in Canadian waters and within 
 the prohibition of the last mentioned Act, and 
 of the regulations made in virtue thereof. Mowaf 
 V. McFee, 5 S. C. R. 60. 
 
 The plaintiffs sued the defendant for the pro- 
 portion of fees received by the defendant as 
 registrar, to which they were entitled under R. 
 !8. O. c. Ill, ss. 98 to 103. The defendant de- 
 murred to the declaration on the ground that 
 these sections were ultra vires of the local legis- 
 lature, as they imposed an indirect tax and not 
 a tax for raising a revenue for provincial pur- 
 poscj : — Held, affirming the judgment of Ar- 
 mour, J., that having received the money in 
 question under the above Act, the ilefendant 
 could not deny that he received it for the pur- 
 poses therein provided : — Held, also, that if a 
 tax at all, it was clearly a direct tax, and intra 
 vires. CoKnty of Hastitujav. Ponton, 5 A. R. 543. 
 
 As to application of Railway Accident Act, 
 1881 (44 Vict. c. 22 Out.) See Monkhome v. Tlf 
 Grand Trunk R. W. Co., 8 A. R. 637. 
 
 As to validity of R. S. O. c. 116 s. 5 respect- 
 ing Bills of Lading. See Hately v. MerchanW 
 Despatch Co. etal., 2 0. R. 385. 
 
 CONTEMPT OF COURT. 
 
 Attachment for— See Attachment of the 
 Person. 
 
 CONTRACT. 
 
 I. Making the Contract. 
 
 1. By Letters, 125. 
 
 2. Time and Place of Making and Per- 
 
 forming, 126. 
 
 3. Otfier Cases, 127. 
 
 4. Collateral Parol Terms — See Evi- 
 
 dence. 
 
 II. Sufficiency of Consideration, 127. 
 
125 
 
 CONTKACT. 
 
 126 
 
 III, Operation of the Statute of Frauds. 
 
 1. AijrccmenU not to be Performed within 
 
 a Year, 127. 
 
 2. Gunrantee—Svc Guarantee and In- 
 
 DKMNITV. 
 
 3. Sale of Goods— See. Sal'". of Goods. 
 
 4. Sale of Lund —See Sane of Land. 
 
 5. In Leaaen—See Landlord and Ten- 
 
 ant. 
 
 IV. Validity as Reoards Public PoLicy, 
 
 128. 
 
 V. Construction ok Contracts. 
 
 1. Conditions Precedent, 128. 
 
 2. Implied Vonditionx, 129. 
 
 3. Other Ca.ies, 129. 
 
 VI. Performance. 
 
 1. lU.irtise for iion-performanee, 1.30. 
 VII. Contracts ry Particular Persons. 
 
 1. Aijents-See Principal and Aoent. 
 
 2. BroleraSee Broker. 
 
 3. Commin-tlon Merchants — See Commis- 
 
 sion Merchants. 
 
 4. Corporations — See Corporations. 
 
 5. Infants — See Iniants. 
 
 6. Lunatici—See Lunatics. 
 
 7. Married Women — See Husband and 
 
 Wife. 
 
 8. Partners— See Partnership. 
 VIII. Particular Contracts. 
 
 1. Buildinu Contracts— See. Work and 
 
 Labour. 
 
 2. Carriage of Persons or Goods — See 
 
 Carriers — Railways and Rail- 
 way Companies. 
 
 3. Guarantee— See Guarantee and In- 
 
 demnity. 
 
 4. Of Hirinij—See Master and Ser- 
 
 vant. 
 6. Of Tenancy — See Landlord and 
 Tenant. 
 
 6. Of Insurance— See Insurance. 
 
 7. Of Suretyship— See Principal and 
 
 Surety. 
 
 8. Sale of Goods— See Sale of Goods. 
 
 9. Sale of Lands — See Sale ofJLands. 
 
 10. Sale of Timber— See Timber. 
 
 11. Of Warranty — See Warranty. 
 
 12. Work and Labour — See Work and 
 
 Labour. 
 
 I. Making the Contract. 
 
 1. By Letters. 
 
 After a conversation had takcti place between 
 the defendants' manager and one of the plaintiffs 
 as to the latter supplying defendants, according 
 to Ijill furnished by them, with 100,000 feet or 
 more of lumber of equal quality to a former de- 
 livery, namely, tirsts and seconds, the defendants 
 
 to send up and inspect ; the defendants on 1 1th 
 May wrote, asking wliether the luiul>er would 
 801)11 1)0 ready for inspection : that they wanted 
 to buy about 100,000 feet. The plaiiitifFs replied 
 tliat the lumber would be ready al)nut the 1st 
 June ; that tlicy were gettiii;,' out certain sizes, 
 and they would cut the 100,000, the defendants 
 to send their l)ill of sizes, the price to be .'?80i)er 
 thousand, Nos. 1 and 2, f. o. b. at the plaintitFs' 
 place. On 18th May defendants wrote that if 
 the lumber was as rei)rcscnted, American inspec- 
 tion, they would take the sizes, mentioning them, 
 inakingin all 119, 000 feet. On2.'?rdMay the plain- 
 tiffs wrote objecting to American inspection, but 
 agreeing to a reasonable ins))ectiou. ()ii 2r)th May 
 the defendants replied, asking to be informed a 
 week before the plaintiffs were ready if possible ; 
 and on the 20tli June, they again wrote, asking 
 when it would be ready for inspection, so that 
 they could go up : — Held, Gait, J., dissenting, 
 that the correspondence shewed a completed con- 
 tract between the parties ; and that although in 
 some sulisequent correspondence, set out in the 
 report of the case, the pliantitf's attempt to sot 
 up a different contract, this could have no effect 
 on the contract which liad already been entjred 
 into. Fulton et al. v. LTp/nr (^anali Fiirn,i''ire 
 Co. , .32 C. P. 422. Reversed on appeal, see 9 A. R . 
 See also Ockley v. Masson, (i A. 11. 108. 
 
 2. Time and Place of Makin;/ and Performinj. 
 
 I Tlie plaiutifl, at Kingston, Ontario, having on 
 the 20th October, ascertained from thedefendant, 
 the price for forging a cross-head for an engine, 
 wrote on the same day to the defendant at Mon- 
 treal, Quebec, asking him to ship tlie cross-head 
 to him at Kingston as ' 'soon as finislied, per G. T. 
 R." In answer defendant wrote that the matter 
 would have immediate attention, " and as soon 
 as ready I will ship to your address. " The cross- 
 head was subsequently sliipped to plaintiff at 
 Kingston as directed, when a defect in the forg- 
 ing was discovered, and after being used on the 
 plaintiff's steamer for some montlis it broke at 
 t'je defective point. On a motion to set aside 
 the service ol the writ herein the plaintiff under- 
 took to prove at the trial a cause of action which 
 arose in Ontario, or in respect of a contract made 
 therein, within the H. S. O. c. fO, s. 49 :— Held, 
 reversing the decision of the Common Pleas, 31 
 C. P. 1G4, that the contract being to forge and 
 deliver on the Grand Trunk railway at Montreal, 
 was a contract made in the province of Quebec, 
 and the defect in the beam, being the breach of 
 the warranty that it should be reasonably fit for 
 the purpose for which it was made, existed when 
 it left the workshop at Montreal, the breach also 
 occurred in that province, and the plaiutiff there- 
 fore must be nonsuited. Oiklersleeve v. McDou- 
 gall, 6 A. R. 553. 
 
 Where the defendants in a suit reside in this 
 country, and the principal oflSce of the plaintiffs 
 is in England, and a contract is entered into 
 there between the parties which is to be ex- 
 ecuted in New York, a suit in respect thereof 
 may be instituted in this province. Direct United 
 States Cable Co. (Limited) v. The Dominion Tele- 
 graph Co., 28Chy. 648. 
 
 See also Court v. Scott, 32 C. P. 148 ; Refina 
 v. Doutre, 6 S. C. R. 342. 
 
 If 
 
 J' 
 
 •i 
 
127 
 
 CONTRACT. 
 
 128 
 
 129 
 
 3. Other Cims. 
 
 Necessity for seal in contracts with corjioni- 
 tiims. See Allurt CIkixi- Co. \. Iaiviiik,! (t uL, 
 31 C. P. 27U ; Oiildrio Cti-0i)fviitivi' Sluiic Ciiltd-f' 
 Jmiciatioii V. Clcrb it a/., Ik 280; SiM>>/ v. 
 Corpuritliiiii of tlif villtiiH' of Dininnll,., Ih. .'501 ; 
 AZ/;' V. Tlu: Mhllotid It. H'. Co., 7 A. 11. 4()4. 
 
 An iigreenieut to insure may be made by parol. 
 W'rUiht V. TliKbiun Mutuai Lij'v JnstimiiC': Co., 5 
 A. li. -218. 
 
 Ilelil, that an express or implied contract for 
 uafe transport is not created with the Clown be- 
 cause an individual i)ays tolls, impo.'^cd l)y statute 
 for the use of a public work, such as slide dues, 
 for passing his logs through government slides. 
 licfjiiia V. McFiir/ane d al., 7 S. C. K. LMO. 
 
 II. iSuFi'iciKNCY OF Consideration. 
 
 E., carrying on the trade or calling of a dealer 
 in pictures and photographic business, stdd out 
 such business to W., and by the agreement cov- 
 enanted "not to open or start a retail and pho- 
 tographic business of a similar haraeter " in the 
 City of Torontt) for live years. By a subsequent 
 agreement the first was modilied, so as to allow 
 I'f to sell in any maimer to persons residing out 
 of Toronto, and to scl) retail in Toronto, on 
 allowing W. a percentage on the prices realized. 
 VV. filed a bill alleging that K. bad, prior to such 
 second agreement, sold goods in ei)ntraveiitioii of 
 the (irst agreement, and had sulise(jueiitly sold 
 to a larga amount, and prayed an account and 
 payment of his percentage. Tiie court (.Spraggc, 
 C.) being of opinion tliat such seeoiul agrcciiieiit 
 had lieen executed for a valualde consideration, 
 .'ranteil the decree .as asked, and directed the 
 account to be taken by the master, altliough the 
 answer professed to state the actual amount of 
 Hales, and on the motion for decree the answer 
 had been read as evidence by the plaiutilf. 
 H'dUaw-<(in V. Ewi)iij,27 Chy. 5i)(j. 
 
 HI. Operation of the Statute of Fraihs. 
 
 1. Agreements nut to he Per formed with'm a Year. 
 
 In an action on a verbal agreement made in 
 November, for the hiring ')f plaiiititi'by defendant 
 for a year from the Istc' December then next : — 
 Held, th.at there could ".J no recovery for wrong- 
 ful dismissal, the agrecineut being one not to be 
 performed within a year : and that there being 
 an exjircss agreement in fact, no other agreement 
 for a monthly hiring could be implied. Harper 
 V. Davies, 45 Q. B. •^•'2. 
 
 Held, reversing the judgment of the county 
 court of York, tliat a contract for hiring for a 
 year or more defeasilile within the year, is with- 
 in the fourth section of the Statute of Frauds. 
 The agreement, as alleged by the plaintiff, was 
 made in February, 18S0, whereby the defendant 
 was to pay him for his services while he should 
 remain in defendant's ciuployment, at the rate of 
 |!500 a year, for one year, and thereafter at sucli 
 salary as might be agreed upon ; the plaintiff to 
 enter 'ipon his duties, and his salary to commence 
 on the 3rd of March, then next, and defendant 
 was to be at liberty to determine the employment 
 at the expiration of a month named, otherwise 
 
 the ngT'ecr.icnt to remain in full force for a year, 
 and for sucli longer period as might be agreed : — 
 Held, clearly within the statute. Booth v. Prittie, 
 6 A. R. ()80. 
 
 The court will enforce a verbal agreement, 
 although it is to do an act which is not to be per- 
 foiined within a year from tlie time of makinj' 
 the iigreement, where t!ie consideraLion therefor 
 has liecii executed, llalleran v. Moon, 28 Chy. 
 .319. 
 
 IV. Validity a.s Keoauds Public Policy. 
 
 A. being about to sell a certain property, and 
 in order to induce his wife, 1^., to bar her dower, 
 entered into an agreement under seal, that all 
 money to be received as purchase money for tlie 
 same, as well as all rents received from a certain 
 farm of A.'s should be invusted in tlio joint names 
 of A. and one C, and tlie income p.iid over by 
 C, who was autliorized to draw tlic same, to B. 
 "as slie may rc(jiiire it for the mail nance of 
 A. & B. and their family." — Held, a .id agree- 
 ment, and not opposed to public policy. Laviu 
 v.Lavin,20. R,,Chy. D. 187. 
 
 See ir(7/(a//(so« V. EiruKj^l Chy. !)96 p. 127; 
 See also /.'oA(W.s v. fJiill, 1 O. 11. 388 ; Meredith 
 V. Wdlkim.., 27 Cliy. 154. 
 
 V. Construction of Contracts. 
 
 1. Cond'dions Precedent. 
 
 0. D. & Co. contracted with the government 
 to eoiuplete certain telegraph works, and M. af- 
 terwards contracted with O. L). & Co. to con- 
 struct part of tlie s;ud works, in which latter 
 contract O. I). & Co. covenanted to pay M. at 
 the rate mentioned therein per mile, but the eon- 
 tract was expressed to be suljject to the condi- 
 tion that the said payniciits sliould be made to 
 M. within twenty d;iys after the estimate of 
 tlie engineer in eliarge, to be by him put in from 
 time to time to the minister of public works, and 
 service of a copy of sucli estimate on 0. D. &, Co. : 
 — Held, that this alone, apart from other por- 
 tions of the contract, was sulEcient to make such 
 estimate and service of a copy thereof a condi- 
 ti(ui precedent to M. 's right to recover for work 
 done under his contract. McDonald v. Oliver 
 et al., 3 O. R., Chy. D. 310. 
 
 Furthermore, by a third contract T. M. and 
 G. M. contracted with both M. and O. D. & Co. 
 to make advances to M., and to become security 
 for M.'s due completion of the work, it being 
 agreed therein that " upon the completion of the 
 contract 0. D. & Co. should p.ay T. M. and (i. 
 M. the amount iluc them bj' M. for supplies, 
 before paying anything : — Held, that there must 
 be an amount owing by {). D. & Co. to ?.!. , for 
 which M. could recover against them, before O. 
 1). & Co. were liable under the above contract to 
 p.ay T. Jl. and <!. M. anything, .and that the in- 
 tention was only to enalile T. M. & G. M. to 
 intercept payment by 0. D. & Co. to M. of 
 money <luo from them to M. Ih, 
 
 See also The Montreal Citij and Dhfrief .S'riyjn;/.-- 
 Bank v. Corporation of the Counti/ of Perth, 
 32 C. P. 18 ; Blake v. Kirkpalrirk, (5 A. R. 
 212 ; O'Brien v. The Queen, 4 S. C. K. 529 ; 
 
129 
 
 CONTKACTUl!. 
 
 l;]o 
 
 /shiHlrr V. 77/(" Qiiccii, 7 S. (,'. U.tJDi) ; Jonct v. 
 Till' Qiifi'u, 7 S. (.'. I!. 570; J'rorimidl /ii'Hii-aiicv 
 Co. V. CiiiiKroii, 31 ('. I'. ")•_>;{ ; 9 A. It. oii. 
 
 2. Imjilk'd CouiUtiom, 
 
 VVliure ;i road conipaiiy, eiuijowurud by statuto 
 to run a traction engiuo over the highways of a 
 curtain county, untorud into an agrouniunt witli 
 the coi'ijoration of the county, wiiurcliy, ;ifter ' 
 reciting the said statute, it was agreed that the 
 company slioukl 1)' it liberty to lay down a tram- 
 way along acertai i road, tliat tolls to be collect- 
 ed should not exceed seven cents, for cars drawn 
 by one horse, and ten cents for cars drawn by 
 two horses ; that the comjiany, if required, 
 should run two passenger cars daily eacli way, or 
 in lien thereof an onuiibus or sleigh, tliat in case 
 horses, carriages, teams, or other vehicles or 
 animals met the horses, waggons, carriages, or 
 other vehicles of the company, the lat*^^er should 
 have the right of way, and that " so soon as this 
 agreement shall have been ratitied by the said 
 cori)oration, the said company shall forthwith 
 withdraw their saitl traction engine from the 
 public highways of the said county, and shall 
 discontinue the use of the said traction engine. 
 and of any otlier traction engine upon or along 
 such jiublic highways;" and the company in- 
 sisted on their riglit, inuler this agreement, uo 
 I'un a steam motor upon their said tramway : — 
 Held, that, though the words "traction engine " 
 nnist l)e understood in their ordinary sense, as 
 an engine running on the roadway itself, and nut 
 (iu a tramway, yet the above stipulations them- 
 selves were such, that a (jualilication must be 
 implied in the agreement excluding the use of 
 steam as a motive power altogether, and indi- 
 cated that horses were the kind of power in- 
 tended to be used in the traction of the cars : — 
 Held, also, that the fact that the company for 
 several years after the said agreement used horse 
 power onl}', was not to be overlooked as evi- 
 dencing the true agreement of the parties. Tlic 
 Curjiorntiiin of I he Coitnlij of York \. 'I lie 'I'oruiifo 
 (h-iind h'oaihdiil Coiicrc'lc Co., 3 0. it., Chy. D. 
 584. 
 
 3. Other Cnxcs. 
 
 Appellant, part owner of a vessel, brouglit 
 an action against respondents, merchants and 
 siiip biokers in England, alleging iu his declara- 
 tion that w'lile he had entire charge of said ves- 
 sel as ship's husband, they, being his agents, re- 
 fused to obey and follow his directions in regard 
 to said vessel, and connnittcd a breach of an 
 agreement by which they undertook not to 
 charter nor send the vessel on any voyage, ex- 
 cept as orderetl by appellant, or with his con- 
 sent. On the trial it appeared that E. V., a 
 brother of respondents, had obtained from ap- 
 pellant a fourth share in the vessel, the purchase 
 being eflccted by one of the respondents ; and it 
 was also shewn that the agreement between the 
 parties was as alleged in the declaration. On 
 the ari'ival of the vessel at Liverpool, respond- 
 ents went to a large expense in coppering her, 
 contrary to directions, and sent her on a voyage 
 to New Orleans, of which appe'laut disapproved. 
 Appellant wrote to respondents, complaining of 
 their conduct and protesting against the expense 
 
 9 
 
 incurred. 'I'hey rciilied that ajipcliint could 
 have no cause ot complaint against thi'iii iji tin ir 
 management of the vessel, andallege<l they would 
 not have purchased a fourth interest in the ves- 
 sel, if they had not understood that tliuy were 
 to have the management and control of tin- vc.--- 
 sel when on the other side of the Atl uitic. A 
 correspondence ensued, and on the 17tii Xovem- 
 ber, iSd!), api)cllant wrote to thcni, referring to 
 the fact that respondents comiil:iiiiLil of th • 
 "eternal IjicUerings," and that it w.is n<it their 
 fault. He then rea.sserteil his ri/ht to control th ■ 
 vessel, stated in detail, his giounils ol complaint 
 against tlicin, and closed with the words : " To 
 end tlio matter, if your brother will disjiosc oi 
 his (juarter, 1 will purchase it, say lor .':?4,'J0(i 
 in cash." This amount was about the s inii' 
 [)rice for the share as appellant hail sold it for 
 some years before. Respondents acc('|itcil the 
 otrer, and the trantfer was made to aiipcllant :- 
 Held, on appeal, rev.irsing the judgment of the 
 Supreme I'ourt of New i!runswi(tl<, that the 
 expression " to end tiio matter " should he con- 
 strued as applying to tlie bickerings reicind to, 
 and there had not been an accord and satisfac- 
 tion, the contract having l)cen made i)etwecn 
 appellant and respondents only, and iKinga, con- 
 tract of agency apart from any (pu'stiim of owncr- 
 shij), the action was properly brought i)y appel- 
 lant in liis own name. iVclduii v. Viuniluui, 5 
 S. (J. 1{. 35. 
 
 VI. Pekkormanck. 
 
 1. E.fcii.'<i>for iioii-pi'ifoniitiiire. 
 
 Where the plaintiff was engaged by the defen- 
 dants for "the season," i.e., from early in May 
 till some time in Xovendier, as mastc. to manage 
 the steamer Idyl-V'yld for !?1,()()0, and he con- 
 tinued so employed until Sci)tcmbcr, when the 
 steamer was burnt :- Held, that the plaintitt' 
 was not entitled to more than ." proportioiuite 
 share of the salary agreed upon, lor the contiact 
 was subject to tile continued existence of the 
 vessel, and performance was excused by its des- 
 truction without the default of the defendant. 
 Semble, that such a contract made verbally with 
 the president of the defendant company might 
 be binding ; and that a nonsuit for want of the 
 corijorate seal was properly set aside. L'lIU v. 
 '/'//,' Midland K. W. Co., 7 A. 11. 404. 
 
 The plaintiff lent P. a sum of money, for secur- 
 ing the repayui'/ut of which 1'. gave a chattel 
 mortgage on goods ; which P. was to retain pos- 
 session of, and tlie defendant executed a bond, 
 conditioned that in default of payment the goods 
 should be forthcoming for the purpose of seizure 
 and sale under the mortgage. Before the day 
 of payment arrived the goods were destroyed 
 by tire, and an action having been commenced 
 against the defendant on his bond, he pleaded 
 the fact of such destruction without any default 
 on his part : — Held, bad on demurrer, for not 
 negativing any default on the part of P., — Came- 
 ron, J. dissenting. Botucell v. Sut/i( rkuid, 8 A. R. 
 233 ; 32 C. P. 131. 
 
 See also Sfemimn v. ISabi, 8 P. R. KiO, 258. 
 
 i 
 
 
 5;' 
 
 CONTRACTOR. 
 See Work and Ladoiu. 
 
131 
 
 CORPORATFONS. 
 
 132 
 
 Lialiility 'if cnntrnctor subject to insane (lulu- The incjuisition was held to be defective in not 
 
 •ioiiH williiii the kiiowlodgo of one of tlie iilain- identifying tiiu body of the deceased as being the 
 
 tiffs. See li'ijlii r/iiiii it (il. V. Kt'lly, 2 O. H., (^ person witii whose deatii the prisoner was 
 
 B, D. )(i;{. , charged ; but the jjrisoner was recommitted, as 
 
 ., „. ,, , , w ,,.,, n u c\ n the evidence shewed that a felony had been com- 
 
 See WMhr ,1 „l. v. McM,Um>, G S; C. R. „^jt^^^,_ y^^_ 
 
 •4i. 
 
 ('(tNTRlHUTlON. 
 By SruKTiKs— .SW' Puiscipal and Surety. 
 
 Held, tliiit a third person holding a note for 
 the lienclit of one joint endorser, cannot main- 
 tain a joint acti<in against the co-endorsers under 
 R. S. < >, c. 11(1, ss. ■«', 'A, as endorsers for tlie full 
 amount of tiie note, l)ut must sue each separately 
 in a speeiiil action for liis siiare of the contribu- 
 tion. ,Si,mil\. L'ldili'Ulal., HI U. l". 373. 
 
 COXTRO V ERTED ELECTIONS. 
 ^. MiNiciPAL Election.s — See Minicipal 
 
 C()KP()I!ATIONS. 
 
 II. Pakliamentary and Legislative Elec- 
 tions— .SVc Parliament. 
 
 CONVICTION. 
 I. Removal of — See Certiorari. 
 
 II. By Macji.strates — See Justice.s of the 
 Peace — Sessions. 
 
 III. Appeals vmni—See Sessions. 
 
 IV. For Illegal Sale of Liquor-— .S'ee Can- 
 
 ada Tempekanoe Act, 1878— Taverns 
 and Shops. 
 
 A conviction must be under seal. In re liijer 
 <nul Ploav, 4(5 Q. li. 20G. 
 
 Aniendnient of. See McLcUan v. McKinnon, 
 1 O. K. -iPJ; neiiina v. Bennett, 1 O. R. 445; 
 3 O. R. 45. 
 
 CO-OPERATIVE ASSOCIATION. 
 
 Held, that R. S. 0. c. 158, s. 15, an Act 
 respecting cooperative associations, which re- 
 quires the business there referred to to be a cash 
 business, does not prevent an association formed 
 to carry on a " labour " or " trade," from enter- 
 ing into contracts on credit necessary for and 
 incidental to such labour or trade — other than 
 contracts of buying or selling — such as contracts 
 for work or services. Ontario Co-operative Stone 
 Cuttem' Association v. Clarke et al., 31 C. P. 280. 
 
 CORONER. 
 
 A coroner for the county of Carleton was held 
 to have jurisdiction to hold an inquest in the 
 <.ity of Ottawa, situate in that county. Regina 
 V. Berry, 9 P. R. 123-08ler. 
 
 CORPORATIONS. 
 I. Corporate Name and Existknce, 133. 
 II. Stoik. 
 
 1. Allotment and Acceptance, 13.3. 
 
 2. Calls. 
 
 (a) Xotlce of, 136. 
 
 (b) Other Cases, 13G. 
 
 3. Votimj on, 138. 
 
 4. Transfer, 138, 
 
 5. Forfeiture, 139. 
 
 III. Directors, Officers, and Aoent.s. 
 
 1. Election of Directors, 140. 
 
 2. Meetings of Directors, 141. 
 
 3. Powers of. 
 
 (a) Appointment of Agents, 142, 
 
 (b) Of Officers to hind Company — Se^i 
 
 Principal and Agent. 
 
 4. Personal Liabiliti/ of, 142. 
 
 5. Other Cases, 143. 
 
 IV. Liability' of Members, 144. 
 V. Powers of. 
 
 1. Regarding Bylaws, 144. 
 
 2. Changing JJead Office, 145. 
 
 3. Expulsion of Members, 145. 
 
 4. Ot/ier Cases, 147. 
 
 VI. Conduct of Business, 147. 
 VII. Contracts by and with Corporation s. 
 
 1. Contracts not under Seal, 148. 
 
 2. Other Cases, 149. 
 
 VIII. Actions and Proceedings by and 
 
 AOAINST. 
 
 1. Generally, 150. 
 
 2. Mandamus to — See Mandamus, 
 IX. Winding-up Act, 151. 
 
 X. Foreign Corporations, 151. 
 XI. Gifts and Bequests to — See Will, 
 XII. Chartered and Other Corporation.s. 
 
 1. Banking — See Banks. 
 
 2. Building — See Building Societies. 
 
 3. Benevolent and Provident Societka — 
 
 See Friendly Societies, 
 
 4. EcclesiaMical — See Chubch. 
 6. Imiirance — See Insurance. 
 
 6. Municipal — See MuNiciFAJi Cobfor-^ 
 
 TI0N8. 
 
132 
 
 133 
 
 CORPORATIONS. 
 
 13 1 
 
 in not 
 
 ig the 
 
 was 
 
 i:(l, as 
 
 coin- 
 
 133. 
 
 2/ — See 
 
 lTIONS. 
 
 r ANi> 
 
 .L. 
 LTIONS. 
 
 nES. 
 
 letiea — 
 
 )RFOR\ 
 
 
 7. Unilwitijt—Siv Uailw.vys and Hail- 
 
 WAY C0MI'A.NI|-..S. 
 
 S. lload Coinpanicx — .SVc Way. 
 
 0. Schoiil — Sci' I'luti.ic Schools. 
 
 10. Partiriiliir ('oi-porations — .SVc Theik 
 Sevi'.kai, Tiri.Ks. 
 
 I. CoRi'ORATE Name and Existence. 
 
 The plaiutilT.suoil " The CDminissioncraof the 
 Col)oiir<i Town Trust," in wliniu the liarbour at 
 Cc)!)i)urg is vcstuil in feu by '21 Viut. c. 72, fur 
 ilaiiiiigus for loss of Iuh vessel, caused liy tiiu 
 aegliijoneu of (lofeiidants, who by tlieir plea 
 merely ti'a\ ersed the negliyenee. At the trial 
 plaintill' was nonsuited, on tlio objeetiou that 
 defendants were sued as a corporation, but wore 
 not so under tile statute :— Held, that this ob- 
 jection should have bjen raised by plea, and was 
 not open to defendants on this record ; and 
 scuible, that if open, defendants were a corjiora- 
 tion. Leave was granted to amend, if desired, 
 by substituting the nauKis of the commissioners. 
 McSlurnj V. Tin' Comiiii.s.-iioni'r.i cf the Cohounj 
 TuwH Trust, 45 Q. B. "240. 
 
 See also Promiicial fiisuravce Co. v. C'dincron, 
 31 C. P. 523 : 9 A. R. 5(i ; Grand Jniu-lhm R. W. 
 Co. V. Midland 11. W. Co., 7 A. K. (iSl. 
 
 II. Stock. 
 
 1. Allotment and Acceptance. 
 
 The defendants, as partners, liad been ap- 
 pointed agents of the plaintilfs, on condition 
 tiuit tiiey should become holders of 200 shares of 
 the capital stock of the eomp.iny. In pursuance 
 of this arrangement tiioy were catered in the 
 stock register uf the company for that number 
 of shares, under the partnership name ; and 200 
 sharesof the original stock were allotted to them 
 antl the usual cercihcate senl. They did not, 
 however, formally sulwcribe for the stock. A 
 drait upon the linn for the first call was accepted 
 anil paid, as arranged with one of the defendants. 
 •Subseiiueutly, E. wrote to the plaintills that he 
 was about retiring from the lirni, and desiring to 
 be informed as to the position of the "stock 
 subscribed for by them : " signing the letter as 
 "senior partner, "&c. :— Held, in an action for 
 calls, that the defendants were liable, and could 
 not be heard to say that they had not subscribed 
 for the stock :— Held, :dso, that it was unneces- 
 sary to shew that any specific shares had been 
 allotted to the defendants : or that the calls wore 
 made by properly constituted directors. Na- 
 tional Inmrance Co. v. Eijleion, 29 Chy. 406. 
 
 The plaintiff, a creditor of a railway company, 
 sued the defendant, as a shareholder therein, for 
 unpaid stock. The defendant had signed the 
 stock book which was headed with an agreement 
 by the subscribers to become stockholders for 
 the amount set opposite their respective names, 
 and upon allotment by the company ' ' of my or 
 our said respective shares," they covenanted to 
 pay the company ten per cent, of the amount of 
 said shares and all further calls. A resolution 
 was subsequently passed by the company in- 
 structing their secretary to issue allotment cer- 
 
 tificates to each shareholder for the shares held 
 by hint. The secretary accordin'dy prepared 
 such certificates, the (Uie for the defetidant re- 
 presenting that th(! company "in aciiordance 
 M'ith your application for .W shares," iVc, "have 
 ' allotted you shares amounting to iJ.lOOO. " These 
 certiticates wore not sent to the shareholders, 
 but were handed to the company's brokers for 
 delivery to tluMn. The brokers ))ublishod a 
 notice in a daily paper that these certiticates 
 were lying at their otHec, but did not send 
 written notices to the subscribers. The defen- 
 dant never called for or received hia certifioatp 
 of allotment and never paid the tt.. per cent. 
 He swore that he signed upon a verbal agree- 
 ment with one L., a promoter and a provisional 
 director of the company, that he an<l another 
 should receive the contract for bnildinj; the 
 road, which was never awarded to tJicm ; and 
 that ho never .lad any notice of the allotment 
 having been made to him. The learned judge at 
 the trial was unable to say whether the defen- 
 <lant received actual notice of allotment, but 
 found that the company sent notices to him of 
 calls ; and that his naino was published as a 
 shareholder in a newspaper to wliich he was a 
 subscriber. The only evidence of the notices 
 being sent to the defendant was the general 
 statement of the secretary, that he directed 
 notices to be sent ten months after the allotment, 
 to those shareholders likely to pay, that their 
 calls were duo : — Held, reversing the judgment 
 of the Queen's Bench, Moss, C J. A,, dissenting, 
 that the defendant was not liable, as the 
 evidence, more fully set out in the report of 
 the case was not sutficient to prove notice of 
 allotment to him: — Held, also, that if he 
 had received notice of allotment, the fact that 
 the contract was not awarded, as promised, 
 would have formed no defence, as L. had no 
 power to bind the company by annexing such an 
 agreement to his subscription. Per Burton, J. 
 A.., that even if a notice of calls were sulBcient 
 to prove notice of allotment, the defendant 
 would not have been bound by such a notice 
 received ten months after his subscription. Na- 
 smith V. Manning, 5 A. R. 126. 
 
 Held, affirming the judgment of the Court of 
 Ajjpeal, that the document signed by the respon- 
 dent was only an application for shares, and that 
 it was necessary for the appellant to have shewn 
 notice within a reasonable time of the allotment 
 of shares to respondent, and that no notice 
 whatever of such allotment had been proved. 
 (Ritchie, 0. J., and Gwynne, J., dissenting.) 
 S. C, 5 S. C. R. 417. 
 
 Claim : calls upon shares for which the defen- 
 dant's testator had subscribed, and upon which 
 he had paid ten per cent, at the time of subscrip- 
 tion. Defence : by a by-law of the plaintiff com- 
 pany no subscriber of stock should be a share- 
 holder until the same had been allotted to him 
 by o^der of the board. The testator subscribed 
 for fifty shares, or any portion thereof which 
 might be allotted to him, but no allotment was 
 ever made : — Held, on demurrer, bad ; forthe by- 
 law did not extend to a case in which a person 
 on subscribing paid the necessary deposit, in 
 whom the shares would vest under 39 Vict. c. 93, 
 s. 2, (0.) the plaintiff company's Act of incorpor- 
 ation. Tlie Union Fire Ins. Co. v. Lyman, 46 
 Q. B. 453. 
 
 I 
 
 r- 
 
 i 
 
135 
 
 CORPORATIONS. 
 
 1 lid 
 
 ir, 
 
 Tlio Oiitiiiio WiKid I'.avciiujiit < 'fiiii](aiiy, incor- 
 jidialiul iinilci- 'JT-H \'i(t. c. '2'A, \\ itii jxiwur to 
 liicroiisc '.>y l)y liiw tlir (.■i|pit;il st^ick nf tlii' iimi 
 paiiy HO HOCII .IS, lilit lint liflurc, tllt^ nl'i;,'ili:il 
 stock w.'iH :ill itlliitlcil iuiil |iai(l u|i, a.ssiiiiu'il to 
 l);i.s8 ii liy-liiw iiicriasiiiK tlit' ciiiiitiil Mt(ick IrIoic 
 tliu oi'i^'iiiiil iiniciiint Ii.kI Ipiiiii puiil ii|i. 'I'ln' plaiii- 
 till's, cxcciitioli (•icditor.s (jI ll.o cnluii.iiiy, « hose 
 vrit li.id lifrii ntiMiiuil iiii.siiti:^li<'il. institiitt'il 
 j)r(M:('i(liii^'s liy way of sci. la. af^ain.'-t tlir ili'l'cii- 
 iliilit as liol<lcr ol sliait'M of tin.' new or iiinuasi d 
 cftpitiil stock ; llilil, (icviisiii^' tlic jiiil,L'iMeiit 
 of tlic colilt IhIhw, :«) ('. I'. l()S)tliat till- 
 l)y-la\v so ]iassc(l liy the cMHiiiiaiiy liciii;.; ultra 
 vircH, till! allcjjcd slial'CN of tin.' ik-ffiidaiit liad 
 not any cxistcnic In law, and tlicicfoic that tlii' 
 idaiiitill's failed to e.stalilisli that the defendant 
 was a sli.areholdi'r \\ ithin the statnte, and eonsu- 
 (|iU'ntly they «(ic n(.t entitled to I'eeover ; Imt 
 the a|i)>( .il lieinj,' allowed on a j.'roiind not taken 
 ill tile court lielow or assigned as a rea.-son of 
 appeal, the court refused the .•ippellaiit his costs 
 iiiajipcil. And jier ( 'anicroii, .1., c|iiare, whether 
 the delendant iiiifjlit not have shewn that tlii' 
 transfei' to him had lieeii made liy way of se- 
 curity (inly s', that he was not a shareholder 
 within the Words of tiie statute, and therefore 
 not lialde for calls. J'dijr r/ al. v. Aiixliii, 7 A. 
 I!. 1. A liirmed liy the .Supreme t'ourt. 
 
 The Stadaoona Insurance Comiiaiiy inuorpor- 
 ated in Ih74, em]doye<l hjcal agents to olitain 
 8uliscrij)lions f(n' stock in the di&trictof Qiiehec, 
 such local agents to receive a commission on 
 nhares suhscrilied. At the solicitation of one of 
 these local agmts I'. \. i."., ii. tending to sub- 
 scribe for live ])aid up shales, Jiaid S-'iOO and 
 signed his name to tin; suliscri])lion hook, the 
 columns for the amount of the sulisci'i|itioii and 
 the iiniiiber of shales being at the tinu! left in 
 lilaiik. These columns were afterwards, in the 
 presence of appellmt, filled in with the number of 
 shares (50 shares) by the agent of the coin]ianj', 
 without F. .\. ('. 's coiisent. Having dist'overcii 
 his position, one of apiiellaiifs brothers, who had 
 also subscribed in the same way, went next day 
 to Quebec and endeavoured, but ineUectually, to 
 induce the company to relieve them from the 
 larger liability. At the end of the year ISTr), the 
 comjiany declared a dividend of 10 jier cent, on 
 the paid-up capital (inontant verse), and the plain- 
 till' received a ehetjue for !j50, for which he gave 
 a receipt. In the following year the company 
 suffercil heavy losses, and notwithstanding F. 
 X. C.'s repeated endeavours to be relieved li„in 
 the larger liability, brought an action against 
 him to recover the third, fourth, liftli, and sixth 
 calls of live per cent, on lifty shares of 6100 each 
 alleged to have been subscribed by F. X. C. in 
 the capital stock of the company : — Held, (Sir 
 W.J. liitchie, C.J., dubitante,) reversing the 
 judgment of the court below, that the evidence 
 shewed the ap])ellaut never entered into a eon- 
 tract to take 50 shares, that the receipt given for 
 a dividend of ten per cent, on the amount actu- 
 ally paid (moutant verse), was not an admission 
 of his liability for the larger amount, and he 
 therefore was not estopped from shewing that he 
 was never in fact holder of fifty shares in the 
 capital stock of the company. CoU v. Stadacona 
 Im. Co., OS. C. 11. 193. 
 
 See Lonr) v. Gttelph Lumber Co., 31 C. P. 129, 
 p. 144. 
 
 2, fa I /.I. 
 
 (a) NiitU'i: (if. 
 
 The notice of two calls, one payable on the 
 27th of .Inly, the other on the •_'7th of August, 
 was mailed at .Montreal, on the -7th of . I line, 
 addressed to the linn at (Htawa, which was 
 received by one of the deft ndalits. There was 
 not any aUirmativc evidence that it Was not 
 coiiiniuiiicatcd l)y liiiii to his co-partner :— Held, 
 that such iiotii e was insulMcient as " not less 
 than .'iO days' notice" was i-cc|uirid ; and, there- 
 foM' the mailing of a notice on tlic ■J7Hi of .lune, 
 rei|uiriiig a call lo bi^ |iaid on the ■_'7tli of .Inly, 
 was not in lime : — otluMW ise thi' notice was 
 siillicieiitly estalilishcd. .\(tlUiti(il Inn. Co. v. 
 K'jhxoii, 'il fhy. m\. 
 
 'I'lie 37 Vict. c. 9>'i, s. 7, <),, under which the 
 calls sued for Were made, provided that thirty 
 days' notice of every call should be given. The 
 resolution making the call, was passed on the old 
 of August, 1M81, the call to be payable on the 
 ()tli of Se[itenibcr. Notice to the defeiulants, 
 F. it !>., was mailed in Toronto, on the 5tli day 
 of August, and would reach Ottawa post-ollii'c, 
 where K. it 15. lived, at7pni., on the (ith. The 
 post-ollice closed at 7..'!0 ]!. in., but the litter 
 could not have been olitaiiicd on that evening 
 ■without iH'rsonal application to the jiostniasLer. 
 It was received on Monday the Sth of August : — 
 Held, allirniiiig the judi.'inciit of Hagirty, C .1., 
 U'ilson, ('. ■!., doubting, that the notice must 
 be deemed to have been given upon the ni.iiliiit 
 and therefore it was good. Per Wilson, ('. 
 If the thirty days weiv to be consulted from the 
 time w hen the notice had or should have reached 
 its destination, they should begin on the Mon- 
 day. Till: i'lihili Fin- lli-i. Cii. V. /'/'/>/;/( ///(//(A 
 
 ct (tl., ami another nw, .'i'J C. 1'. 002. 
 
 The defendant, S., it appeared, had made an 
 assignment in insolvency, but the stock had 
 not been returned by him as part of his assets, 
 and that the assignee had never accepted it. 
 Tile notice of call was sent to the assignee, but 
 he directed his book-keeper to forward it to IS,, 
 vhicli he stated he had done, but the defendant 
 denied its receipt. The i)laintill's manager stated 
 that alter the call was (lue, he jiaid .S. a dividend 
 oa the stock, and S. then said the call would be 
 paid : — Held, that S. was still astoekhohler, and 
 must be deemed to have had notice. J/>. 
 
 A call was made by resolution of the .3rd Au- 
 gust, payable on the (Jth September, and notice of 
 it was mailed at Toronto on the oth August, ad- 
 dressed to defend^'.:. i,s at Ottawa, but not received 
 until the Stli : — Hehl, suiiicient, following the 
 last case. 'J'he Union Fife. Jn.i Co. v. if (Jura; 
 Same. IHaintijj's v. ,Skootbrcd, 4 O. R., C. 1". D. 
 359. 
 
 See Provindal Ins. Co. v, Cameron, 31 C. V. 
 523 p. 137 .■ Xa.'<nnth v. Mannimj, 5 A. R. I'iG!; 5 
 S. C. R. 417, p. 134. 
 
 'o> 
 
 (b) Otli..r Cases. 
 
 The 12 Vict. 0. 157, s. 27, provided that five 
 per cent, should be paid on each share at the 
 time of subscription, and the remainder in such 
 instalments as the directors should appoint, pro- 
 vided that no instalment should exceed ten per 
 cent, upon such stock, or be called for or become 
 
 
i;5G 
 
 I'M 
 
 CUlM'lMlATroNS. 
 
 138 
 
 [my,vl)l(! ill Iti^x tli:iii thirty il;iyH ufttr imlilic 
 iiiiticci siidiiM ii LVu Ihm;ii given " ill iiiiu or iii irr 
 of tliu Mcvuriil iicw.sii.ipors ]mlili-<lici| in cvi.ry j 
 ilistrii't wiiLTu «tiic:lv III ly l>o \w\d, to tiiiit etVi'rt." 
 — Ili'iil, tii.it iiinlur tlii.s Ai^t iiioru tliaii oik' call | 
 could 1)0 iiiadu at liii' m iiiu- time, ami it wan imt , 
 cssiMiti:il that thirty days .slidiild .'liiisi! hc'twi'tMi I 
 till' i>ayiiiuiit (if raoh, sn lnni^as uachcill did nut 
 exccL'd ton iior ooiit., and wa^ in idc payalili^ nit 
 U'.ss than thirty dayn aftor tho |)iililiiMtiiiii of 
 till' imtico thorodf ; that tho rcsoliitidji of diruo- 
 tdiH and iidt till' iidtii.'o in idt; tlu: I'all ; and that 
 a variaticin in tho days "f piyiniiit liotwoi'ii tho ; 
 n'sdhitiiiii and tho iiotioo invalid ',t>:d tho c ill, 
 l)iit not as td dofoii liiit t 'aiiioniii, or hor tostator, 
 who had iiiido |i:iyinriits on or iiriiiiiisod to ji ay 
 siii'h calls. I'i'iii'iiitiiil lii.t. Co. V. ('iiiiiirnii iiii<l\ 
 /,.r o/lirrCa.^..-.; :\[ (,'. 1'. 'r.':!. Alliriiioil, !) A. It. 
 5(). 
 
 Held, alsd. that under the said .Art tho jiulili- 
 oatidii "f iidtioo in every distriet wheri! stdok 
 wa-i lielil w. s not a eoiiditidii |ireeodoiit t(i tho 
 right df action aLrainst sharelidlders wild had hoeii 
 duly iiotilied. //<. 
 
 It w.is also dhjootod tli.it the calls hail hoeii 
 resoinilod hy resdhitidiis siihseniiently ])as!.od, 
 and .set out in the easi; : -Held, that siioli rcsi)- 
 lutioii.s referred only to the terms or time (if 
 payiiiunt. ///. 
 
 Hold, also, that upon the facts st.ited in the 
 oaso there had lieeii no such jireference or ilis- 
 criiniiiatidii between ilitferont (dasses of share- 
 holders as to invalidate the calls. /''. 
 
 Interest was allowed from tho time when the 
 last call heeame due. //'. 
 
 Action to recover calls on stoeh. 'I'lie defen- 
 dant's .\et of inoorjioratioii eiialiled the directors 
 to luake c.iUs at such times as tlioy might deem 
 renuisito, provided that successive calls should 
 be in ide at intervals of not less than two months 
 hetwocn such calls, that no call should exceed 10 
 per cent., and that .'JO days notice should he 
 given df every such call : — Held, not necessary 
 tli.it the calls should he made by by-law, but 
 that a resdlntion was siillioiinit, and that the re- 
 solution need net iiaiiie the place of payment of 
 the calls, but that this Cduld be done in the 
 notice. Till' Unhni Fire /ii>i. Co. v. O'diira ; 
 Smm- Plalntif'i v. S/ivulhml, 4 O. 11., C. P. 1). 
 359. 
 
 A resolution was passed by wdiich a call was 
 made of 10 per cent , payable on the 1st March, 
 and it was thereby further resolved that a fur- 
 ther call of 10 per cent, be made payable on 1st 
 September :— Held, clearly not a call of 20 per 
 cent, but two calls of 10 per cent, each ; and 
 that the fact of the second call being illegal did 
 not invalidate the first call, becau.se contained in 
 the same resolution. Jh. 
 
 .An alleged third call was objected to as being 
 a fourth call, in that the illegal call before re- 
 ferred to had not been abandoned ; but :— Held, 
 that the evidence clearly showed such abandon- 
 ment. Ih. 
 
 In addition to .50 shares personally subscribed 
 by the defendants O. and S. and ujion which 
 they were held liable, the plaintiffs chiimed that 
 they were holders, respectively, of To and tiO 
 shares, for which they had not subscribed :- 
 
 Held, on the evidoii(M<, set out in tin- report, tint 
 (). w.is not such holder, but th.vt S., was, ami 
 was therefore liable thoreoii. Hi. 
 
 Whore cortiiii sharohdldcrs of the (J. I;. Com- 
 p;iiiy sought to restr.iiu a call on stuck, on tho 
 groniiil thit it was being made in coiitraveiitioii 
 of the tonus of a certain unwritten .agrceinenfc 
 alli.'god to ii;ive lioiMi cnteri'd into liotwooti all tlni 
 promoters, wlioi. the (). ij. Ooinpany \vm form- 
 ed : -Hdd, that ovidoiiceof siioli .agrci'inoiit was 
 iiiadiiiissiblo, siii(;e it was coiitradiotory of thu 
 written .agroeininit eiitoii'd into by the plaiiititlil 
 when siibsoribiii" for thoir sh.ircs, vi/. , to take 
 stdidi and jiay tho calls when duly mailc. <'lirin- 
 Injilnr if III. V. .Vii.i:onH al., 4 <). U., (Jhy. J>. 
 (i7-'. 
 
 Where a by law inaking a call on stuck was 
 coiilirmod at a gc'iicral inoi'tiiig of shareholders, 
 purpditing to be the animal nioc'ting, but not held 
 on the |irdporday for such annual meeting, as pre- 
 soriliod by the bydaws of the eonipany : — Hehl, 
 that Olio who, as a director, had secondod a reso- 
 lution of tli(^ directorate that the iiii!(^ting should 
 be hold on the day it was hehl iiii, was estuppud 
 fidin olijeeting to the call on this ground, and so, 
 tliorefore, wcro all those who were cupliiiiitiiru 
 with him in an actinii to restrain the said call. 
 11). 
 
 I Whore sharehdldcrs have assisted in inaking, 
 and ajipriivod of call.s, they cannot afterwards ob- 
 ject that the calls were improperly made. lb. 
 
 Whore a call is madi^ upon all stoekluddera 
 without disoriniiiiatioii, or iiartiality, the (Jourt 
 ' will never interfere to dotcrmiiie whether it was 
 necessary, or not. ///. 
 
 ' Soiiiblo, however, that if calls wcro made in 
 
 ; such a way as to favour one sot of stock-holders, 
 
 and impose an uneipial burden upon others, an 
 
 equity might, perhaps, be found for interference. 
 
 Il>. 
 
 Held, that, under W. S. O. c. I'lO, ss. 37, 
 
 41, a shareholder, who is in arrear for unpaid 
 
 I calls, is ahsdliitely debarred from voting at a 
 
 shareholders ineetiiig, and in any subsoipient 
 
 ' action by him to restrain a call, tho by-law for 
 
 which was ratilied at such a ineeting, on the 
 
 ground that his vote was wrongfully exclnded, 
 
 1 the above objection can be taken advantage of 
 
 i by the comiiany, though that w.is not the ground 
 
 ' assigned at tho time for excluding tho vote. lb. 
 
 Calls on insurance stock after snsiiension of 
 i license. See Union Fire. lii.i. Co v. fjijnmn, 46 
 I Q. H. 471 ; Union Fire Ins. Co. v, Fitz.-iimmona 
 '('taf.,:i'2C. P. (i02. 
 
 3. Votinij on. 
 
 See Chrintophcr et al. v Nu.von ct al., 4 O. E. 
 072, supra. 
 
 •J; 
 
 "r* 
 
 % 
 
 4. Transfer. 
 
 Tho stock of an incorporated street railway 
 I company, consisting of 2,000 shares, was ownea 
 ' exclusively by two brothers (U. & W). The 
 I charter of the company roipiired that there 
 ' should be a board of directors consisting of not 
 I less than three members, each of whom should 
 j hold stock to the amount of not leas than $100. 
 
139 
 
 COUI'OIIATJONS. 
 
 140 
 
 141 
 
 >-i:; 
 
 It liuving btcoiiic iiL'CLt-wiry to iiiiHf fumlH furtlu; 1 
 |iuiIi<iHt! (il iiu lyiiiK till tlif IjiihiiioM (ii tliu ci'iii 
 
 |)illiy, 111*: t«() l)liitlul« ajilifil tli.it. tlify kIioiiIiI 
 convey to M. (tluir lalliir) oiu: hliaif iinli jii 
 Older to (|ualily liiiii uh u tliiccldi', ami vliirli 
 tluy tliil ai( (iiiliii^'ly acMi;:!! ; tlic lallni' lioiii 
 tliiiici'toitli auttd a» lln' tliinl ilim tor, ami tliu 
 fiiiitlH lor llii' I'oii.-'liiii tioij and iiiiprovi mint of 
 till' I'oatI, vMii' olitaiiii'd anil rx|Miiiliil tlinioii, 
 iiy his «ill tlic tiitliir ) ii|iiiiitliril tliinf tvo 
 hliuuH to iii.s (iaiiglitir S., wlio, altir the lii-iitii 
 ot lifi faliiir, i:oiitiiuitil to ixcnlhu uluii hills- 
 nary, tlif liimtioiiH .>i ilinitor. Alttr hoinu tiling 
 (i. l)fiaiiii; (ll^^atl^•lic■ll witli tlii' iiiaiiliir in w liii li 
 .S. ilinrli«rj;i tl 111 r liiiticH iis tliintoi, .illiginj; 
 tlint hliu aril ci hiiiiiily ah the iioiniiiir of \\., anil 
 liiially a>iM itnl tlial the hIkiiis liail lurn oiij^in 
 ally iisnijjiiiil to tlir fatlirr for tlif avowiil imr- 
 jiOBo of ()iialifyinL' liiiii to act, l.iit in itality as 
 IniKtii' for <;. \^ W ., and tliat I i; liad not jiower 
 to <iin|'om: of till III liy will, ami liliil a liill m ik 
 ing to liavu it ilii'laiLiI tliat M. Iiad dining' liis 
 lift'tiiiiu, ami thai S. ^inrc hi.s ikatli had laid 
 tbt-Mi; MliaiiH Kiin|.ly as tiuhlcu of (i. & \V., and 
 that N. nii^ilil hf onkird to iL-at<Nigii tin in. 'I'ho 
 com t, iimlLT thf cin uin.staiicis dinni^M d ihu Mil, 
 with cohtH. A/i/y V. •Sim/lli, '21 Lhy. •J'JO. 
 
 TheiliaitiT of tlio uoin]i!iny iiroviduil that tin; 
 stock "shall 111' tranwliialilf in mtli way an tlit- 
 dirtctof.s Hliall liy hy law dircit ":— llild. that 
 this did not jirivint tho tr.'insfiT >.f the Ktouk 
 until KUih 11 hy-law should lie jifiFHrd, hut lift it 
 aa at coiiinioii law, ho that it might hu tiaiisfur- 
 rod liy wold of mouth. /Ii. 
 
 Ujjoii the factH btatcd in the reiiort of this 
 oas»! :— Held, that a traiiKtcr was Kullicitntly 
 islicwii. Jb. 
 
 And, sfiiiMi', that tliu ]ilaimif}', one of the di- 
 roctoi'H, bIiouIiI he iHtopjied from allegin^i that 
 M. was not jirojierly qualilied aw a direetor, the 
 efl'ect of whiih would have heeii to iiijuiioiisly 
 affect the value of IioiiiIh of the eonijiany, to the 
 issue of which the jilaiiitill' wa.s a party, ih. 
 
 Held, also, that the transfer to M. was not 
 without consideration, the agreement hy the two 
 brothers with each other to make it lieing sulU- 
 cieut. Jb. 
 
 See Pruvhii'idl Inn. Co. v. daiiunni, and s'u: 
 oilier Cuncx, 31 C. 1'. 5'23 ; 9 A. 11. 0(i, ;/(/'/((. 
 
 5. Fiirj'i'iliire. 
 
 In an action for unjiaid calls the shares held 
 by the defendant Cameron as executri.x and in 
 her own right, were transferred under iiowers of 
 attorney, which were not luoduced :- Held, that 
 there was sullicicnt evidence to shew the exis- 
 tence of such powers, and to let in secondaiy 
 evidence thereof, the defendant and the testator 
 Laving fully admitted their liability as owners of 
 the shares ; and that tho evidence also shewed 
 that there had been no forfeiture, as was urged, 
 of such shares, tho alleged forfeiture having 
 been conditional and never completed : — Held, 
 also, that the change in the cor2)orate name 
 of the plaintiffs, as set out in the ease, could 
 under the circumstances form no objection to 
 their recovery. I'rovinckd Jits. Cu. v. Cameron, 
 and six other Cants, 31 C. P. &23. Affirmed, I) 
 A. R. 66. 
 
 It was urged that the shares of ecitaiii other 
 shaiiholdi IS had not liei n legally forfeitid, the 
 diiietois under the oiiginiil eliai ter not having 
 the liower to do Ml ;• lleld, that tin y had Mu h 
 )iower ; hut that in any event this tould not 
 atliet till! liability of these defeiidants. Jb. 
 
 The plaintiil on beeoining a member of the de- 
 fendant eompany, agreed to aieept his sharis 
 siibjeet to the rules of the eompany. Hide (i was 
 to the i lliit that in ease of di laiiit ol layiiuiit 
 of dues for a year, the diieetois might foifiit 
 any share so ill ill fault. '1 he |ilaiiilill being :u 
 dilanlt for a year and upwards the iliieitois 
 declared his shaiis foifeited, and this pioi'eeding 
 was aftei wards eonliiniid at a nieeting of the 
 shareholders. The plaintiil thereupon iiistitiiled 
 piiiii edings to ha\esurh foi fi itilie deelaied in- 
 valid, on the giouiids, (1) tli.it notiee of the 
 iiitintiiii to fill II it had not III III givi II to him : 
 ('.') that notiee of the foifiitiiie had not liei n 
 served on him, so that he had been unable to 
 appeal to the sliari holders ; l.'i) that the rest lu- 
 tion did not exjiel tht; plaintiil' frmii niembir- 
 ship; (4) that the plaintiil 's name w lis not set 
 forth in full in siieh it solution ; it diil not spi eify 
 ' the shares to be forleited, and other jieisons- 
 were ill! hided whose shaieH Were jointly for- 
 feited ; (")) that no notiee had been given of 
 the holding of the annual meeting for the ele,;- 
 tioii ol directors, so that the diieeloiate was not 
 legally eonstituted ; ((>) that oneot the direetors 
 who voted lor the forfeiture bad beeoiiie insol- 
 I vent under the Act of 1875, although his shales 
 continued to st.'iiid in his name in the books of 
 ] the eoinpany ; (7) that it was not shewn that 
 proper and suliieieiit notiee had been given of 
 I the meeting of the directors at w liieh such lui- 
 feitnre hail been deelaied; (8) that the plaiiititt 
 had capital at his credit in the eoin]iaiiy out of 
 wliiili the arrears might have lieeii paid ; and 
 ! that by a by-law of the eoinpany, " all tines and 
 : forfeitures should be charged to members liable, 
 I and, if not paid, deducted from capital at the 
 , credit of such member : — lleld, that these objee 
 tions could not prev;iil, and that as to the last, 
 this was not sueli a forfeiture n-\ was referred to 
 in the rules. AV///.V v. Scvuinl AUitiidl Jhulil'iiKt 
 Nodily ol' Vllaira, 29 Cliy. 39!». 
 
 When on May SIst, 1880, the directors of a 
 company passed a by-law reducing the numbers 
 of the directorate from live to three, and this was 
 contirined at an adjourned general nieeting of 
 shareholders on June 1st, 1880, and a new board 
 of three forthwith aiipomted, but, it ajipeared, 
 no notice had been given either before the origi- 
 ] nal, or the adjourned meeting of the intention of 
 i making any such change in the directorate ; — 
 Held, that the appointment of tho new board 
 was not a legal one, and a resolution by them 
 to forfeit stock for non-payinciit of calls was in- 
 valid, and the forfeiture must be restrained : — 
 Held, also, that the company were properly 
 made parties to an action to restrain such for- 
 feiture, the reduction of the directorate to a 
 board of three being its act. Christoj/her ef <il. 
 V. AVfo« et al., 4 O. il., Chy. D. G7'2. 
 
 III. DiRECTOKS, OflflCERS, AND AuKNTS. 
 
 1. Election of Directors. 
 
 At a nieeting of the shareholders of a company, 
 the capital stock of which was held by a few, a 
 
•If» 
 
 tlicr 
 tliu 
 
 Vill« 
 Mil ll 
 
 net 
 
 He- 
 ll ri'N 
 
 WllH 
 
 II lit 
 
 III il 
 
 -! It 
 
 ln|.< 
 
 liiii,' 
 till 
 
 iltuil 
 
 ill- 
 
 the 
 
 mil : 
 lei II 
 
 !• 1(1 
 
 fi 111- 
 icr- 
 
 iL Hit 
 
 II cii\ 
 
 ISIllI!-- 
 
 tnr- 
 
 11 iif 
 ill,- 
 
 14i 
 
 COlll'OUATIUNS. 
 
 14: 
 
 rhaimitiii w;ih cliictril iiy n inajniity "f tliu vnti.s 
 (if tliii.-.i' l"*i".i;iit, uitiioiit ii'^aiil tn tlii) Htiii'k 
 liuld by tlii^iii. Two (if tiid hliiiiiliiiliU'i'M, who 
 \vei(! uIho |iniviHl(pii,'il ilirci;tipi'M, iiml wlin weri! 
 ciiiiiliiliitrs I'lir rr eirL'tioii, Wirt- ii|i|iiiiiiti'il mitii- 
 tiiu;i!i'8 ill tliu HiiiiiiMii.uiiiiT, ami ilircrtuiH wcro 
 tlu'ii eli'i'ti'il, tixrliiiliiij,' tin; iilaiiilitl'. 'I'lic pl.'iiii- 
 liffwuH ]irvrii<leiit i>( till! iMiin|iaiiy, uiiil lii'lil ii 
 lurgi! iiiiiiiunt (if Htiii'k, Hiillicii'Mt with that licM 
 Ipy thiiHi! who wore favimralilc to him to iiavo 
 ii(ilitlolli!il till' Vote if it llMil licrli takril aucoiil- 
 iiiy to nliarcH. It waw tin; iliity of the Mtriiti- 
 iiet'iH to (Iccidi! MH to what votcM wen; valid, and 
 thuy also, with the aid of l('>,'al advirc, iiiti'i|irt't- 
 ed ail iiistruiiiciit iiikUt v Inch tin; ]ilaiiitiir had 
 advaiii'i'd a larj,'(; Kiiin of rnoiicy to Htart tin: com- 
 pniiy, and which jirovidcd for the futui'i' iUk- 
 poHition of the sliarcH of tin; coiii|iany, held hy 
 tho ])laiiititr an H security for his advances, and 
 allowed certain iiersoiiH to vote as licin^' ciHtiii 
 (luu trusts of a ])orti(m of sucb : hares ; Held, 
 
 (luu iriis 
 that the 
 
 duty of the scrutineeis wan so jilainly 
 in oonllict with their interest us candidates for 
 the directorate that ; .icy were ilisi|ualiliid from 
 30 actini.', and the election was set aside, and a 
 new election ordered, with costs to he paid liy 
 tin; defendants. IHrksuit v. McMiin'Oii, -H Chy. 
 
 An election of olHcers olitained by n trick or 
 artifice cannot he considered a hona tide election, 
 hut when sliants have heen actiuilly ]iurcliaseil 
 and paid for, the fact of their In in;; [iiM'eli.isid 
 with u view to inllueiice the election is in) olijec- 
 tion. The Toriiiiti) Jinwiini anil Maltimi < 'o. v. 
 Illakt; '2(). H., (.'hy. I). \~'i,. 
 
 Sue Cliriito/ifiir ft (t/. v. X(i.ivn it <il., 4 (). U. 
 C>T2, pii. i:i8, 140. 
 
 2. Mi'i'thi'is nf Director'). 
 
 Five of the nine of the provisional directors of 
 a railway conijiany heiiig iif|Uonini, four of tliein 
 inctat Winnipeg juirsiiant toa valid notice under 
 the statute, and adjourned to a day named, wdieii 
 six met at Toronto in .alleged ]mrsuance of such 
 advertisement without advertisement or notice 
 under the statute : — Htdd, th;it tho meeting of 
 the six directors did not constitute a duly organ- 
 ized mei;ting (>f directors, though hail all the 
 directors who were at tho meeting at AViiiiii])(!g 
 .ittended pursuant to the adjournment it miglit 
 have cured tho irregularity. McLdrcn et id. v. 
 Fisken H a/., 28 Chy. 352. 
 
 11. S. (). c. loO reijuires that companies incor- 
 porated thereunder shall h.ave not less than 
 three directors, who shall not ho appointed di- 
 rectors unless they are shareholders, and it was 
 provided hy the hy-laws of the ]ilainti(}'s' com- 
 pany that a director should not only hi; qualified 
 when elected, hut that he should continue to be 
 so. The ]>laintitl's' coinjiany was managed by 
 three directors, and one of them disposed of his 
 stock ;— Held, that he thereupon cea.sed to be a 
 director, and the directorate then became in- 
 complete and incompetent to man.ige the ati'airs 
 of tho comp.any. 8emble, also, even assundiig 
 that a quorum (2) of the directors could manage 
 the business, yet, where neither the statute nor 
 the by-laws gave the president a casting vote, 
 resolutions passed by such vote, at a meeting 
 attended only by the prenideiit and one other 
 
 director, were invalid. 'I'lir Tuniiiln Itnir'niti 
 •mil Mil II I III/ Co. V. Illitki, 2 O. U., <'hy. I>. 175. 
 
 3. I'liiirrH of. 
 
 (tt) Afpiiinlmmt uf Aj/tiiln. 
 
 The dcfeiiihint comiiaiiy was a foreign cm po- 
 ration, whose directors had authority to a]ipi>;nt 
 such suliordinatc ollicers as tin; liiisiin.ss of tint 
 ciii|iiiratioii might ri'c(uiic. My jpowcr of attir- 
 ncy under the lorporate seal, tlicy appointed a 
 general agent at Toronto, to take charge of, cuii- 
 duct and inaiiagc the business ol tin; agency at 
 Toroiitii, and of its .Huli-;igi'iicies, i r.ing him 
 jiowcr to do everything necesHary .iii<l lequisito 
 to all intents and )iiirpi>si's as fully as the com 
 [i.iny could do. lie .ippointid tlic jilnintill' a 
 Miili agent for a year, and at tl ml of ihat and 
 eirli siiciecling year he re i >vcd the ajipoint 
 mint for ,1 year. 'I'he |il .intifl' was ji.iid >1.) a 
 week and a coininiMsion on sahs. He v i\ sum- 
 ni.'iiily disnii. sell. I'lvidcnce was gi\. .i fur thy 
 defeiii;c that the corpipr.itiiiii were in tice luiliit of 
 appointing their agents and Kiib-agenis at will ; — 
 llelil. Spiagge, ('. J. (>., dissenting, inllirniiiig 
 the judgment of the Court lielow lefiisiiig an 
 order nisi for a inmsiiit,) that the .•tppoiiitnient 
 from year to year Mas elc.irly witiiin the author- 
 ity 111 the directors, that the general aiitiiority 
 was drligated to the general agent, and that tho 
 plaiiitiir liad ;i riglit to rely upmi tin .uitliority 
 so given when he entered into the engagement. 
 Per Spragge, ( '. .1. (). Though the (lefeiidaut.-i 
 acquiesced in tin; appointment of the ]plaiutilF, 
 there was no aei|uiescence in the terms of the ap- 
 pointment, and it a)ipeared that their jiractico 
 was to engage their agents at will only. Tho 
 power of attorney, if it gave power to appoint 
 sub agents at all, did not give power to aiipoint 
 them by the year ; and the general agent was 
 not held out by the coinp uiy as having any such 
 authority. Ilvirard v. Simjir Mniuifiutiiriinj do., 
 
 8 A. U. 2(14. 
 
 See also Fitlkiiwr v. 
 Cu., 4 (J. R. u-m 
 
 Grand Junction Itailiraij 
 
 4. Pcrnonitl LhihUilij of. 
 
 See. t"i of 10 ^'ict. c. 241, gives power to tho 
 Midland Hallway Co., to become parties to bills, 
 and enacts : " Any bill of exchange drawn, ac- 
 cepted, or endorsed by the iiresident of the com- 
 pany, with the countersignature of the secretary 
 of the coinpany, or any two of tin; directors of 
 the coniiiaii}', and under tho authority of a 
 quorum of a majority of the diiectors, shall bo 
 binding upon the company, .'iiid every 
 liill of exehango . . accejited . . by the 
 president of the comiiany, or any two nf the di- 
 rectors as such, with the countersignature of the 
 secretary, shall lie presumed to have been pro- 
 perly . . accepted . . for the company 
 until the contrary be shewn . . nor shall the 
 president or directors, of the company so . . 
 accepting . . be thereby subjected individu- 
 ally to any liability whatever." A bill of ex- 
 change adilri ?ed "To tho President, Midland 
 Hallway, I'o. 1 Hope," was aaceipted as follows : 
 " For the Midland Railway of Can.ada ; accepted, 
 H. Eead, 8ecretar3 ; Geo. A. Cox, president," 
 the latter being then the president of the com- 
 pany : — Held, per Burton, -LA., and Osier, J., 
 
 
 I 
 
 it 
 
 te 
 
 r- 
 
 T • 
 
U3 
 
 CORPOliATIONS. 
 
 144 
 
 .•I'linniiii,' tlic jnilL'inciit of the (Jucoii's Hencli, 44 
 <). li. ."> 12, tli.it tiii^ (lcf(;iiil:iiit ('i)X was ])i;r.snii- 
 ally !i ililc. IVr IVitttTson and Murrisoi;, .1.1. A., 
 tiiat \ir \v;is not so li ililu. Mivl'Icii v. Cn.r, .") 
 
 A. It. 17;{. 
 
 On" !•;. .i.h-inc'il •■^t.OOn to I. & M,, on tliv 
 ;;uaivinty of tliu dclVnilant ooinitany, cli^arly act- 
 i;ignltra vires, wlio nUtaiiit'il, as security for sneli 
 ;,'aar.inty, an onlcr from 1. it M.. on the water 
 uork-i I'O'iiiiiny. for the .ainonnt. i. & M. after- 
 wards in Im'Mii the defendants to <,'ive up tlu^ 
 order im replaein;,' it liy orders for lialt the 
 .unonnt. !•",. recivered jnd^'nient l)y defaidt 
 a!,eiinst the defemlants, and l)y sei. fa. realized 
 the .amount of his hian ; -Held, atlirinini,' the 
 master's rep irt. th;it 15., wlio w.as one of the di- 
 rectors of tile defi'iiilant company, and who had 
 heeii instriinicntal in piiieui'ini; the above j,'uar- 
 ■inty, w.is ]iroperly ehari,'ed with the anniunt the 
 defendants Irid hjst throu;,di the deli\ory U|) of 
 the order on tiie w.iter works eoinp:iny ; hut that 
 lie w.is not li;d)le for the liidanee of tlie claim of 
 I']., since it had heen made np to the defen<lints 
 hy till' moneys realized on the orders by which 
 tile order .so delivered uj) had heen rejilaced. 
 \Valm.*li II V. Hi lit (I'liaraiitcp Co., 2!) Chy. 484. 
 
 5. Otiii r (^</.<M. 
 
 An objeetioii was raised to the jiresiilcnt of an 
 insurance company actinj,' as sucli, lieeause ho 
 a .ted as the inspector of the company for which 
 lie w.as paid a s.il.iry :- Held, tliat no wei^dlt 
 could he ^ivn to it, l)ecause three direciors 
 formed a (piorum of which the president need not 
 bo one, and a (|in)rum may have acted without 
 him : and, moreover, for all that appeareil it 
 might be tint lie only rceeiveil an adilition.il 
 allowance .is president while clischaryinj,' the 
 duties of insiiector. T/ic Victurin ^hlhlal Fin- 
 /iiKio'diirc Co. V. T/iunijmm, 3"2 (.'. 1'. 47(>. 
 
 In the .absence of .agreement, there is cl:arly 
 m duty or obligation on the part of directors to 
 pledge their own credit for the benetit of the 
 cuaipiny. Clirh/ii/tln'r ct al. v. Xoxmi it al., 4 
 <>. 1{., I'hy. D. (;72. 
 
 Wlierc! certain shares were allotted to one of 
 th-.' directors of a company .at par, in considera- 
 ti' n of which he olfcrcd to supply funds to meet 
 a pressing dcm.ind upon the company, and he 
 voted on these shares at a general meeting of the 
 sh irehidders, and no opposition was at the time 
 made to his so doing :— Held, that the share- 
 holders, must be considered to have ratified the 
 tiMusfer, and could not afterwards object to it as 
 improiicr. II). 
 
 It was alleged that he thus acquired such stock 
 in order to obtain control of the company : — 
 ^^emblc, that this would not be improper, if no 
 improper means were used by him ; but that 
 had he nude a protit thereby, the company might 
 perhaps have claimed it. '//). 
 
 An allotment of shares to .a director, if a rpies- 
 tioaable act, m.ay be r.ititied by the company, and 
 for this purpose, .as-for all other acts within the 
 power of the corporation, the .approval of a ma- 
 jority of sharehohlcrs is sutficient. Ih. 
 
 See 77ir Tonmlo Hnirliii/ anil Maltinii Co. v. ' 
 i5/'(^•<', -2 O. l!.17o, p. lol). 
 
 j IV. LiAiiir.iTv OF Members. 
 
 ^n an action brought hy McK. under the pro- 
 vi.ions of the Con. .Stat. Can. c. (Jl?, against K. 
 
 ; ct al. , as stockholders of a joint stock company 
 
 ' incorporated under said Act, to recover the 
 amount of ,an unpaid judgment they had obtained 
 agiinstthe company, the defendants K. et al., 
 jileailed in er alia th.at they had jtaid up their 
 
 ! full sii ires and thereafter and before suit had 
 
 ' olitained and registered a certificate to that 
 cll'cct : — Held, afiirming the judirment of the 
 
 ' Court f)f Common Pleas, that under ss. 33, 34, 
 and '^o, Con. Stat. Can., c. (!3, as soon as a 
 shareholder has i):ii<l u)) his full shares and has 
 
 ' registered, although not until after the .SO d.ays 
 mentioned in s. .3."), a certilicatc to that effect, 
 his li.ability to ]> ly any debts of the companj' 
 
 I then existing or thereafter contracted ceases, 
 exc(!pting alw.ays debts to employees, as specially 
 nieiitioned in s. 3G. Ritchie, O. .1., and Four- 
 
 [ nicr, J. dissenting. McKeirJi' v. KHtridij", 4 
 .S. C. K. 3(i8 ; 27 C. P. 05 ; 24 C. P. 1. 
 
 V. PoWER.S OF. 
 
 1. Uiijanliuij By-httM. 
 
 The defendants, a company inc>)rporateii under 
 ! the Ontario Joint .Stock fjctters Patent Act, R. 
 I S. O. c. 1.50, as amended by 41 Vict c. 8, s. 16, 
 j with a capital stock of SfOO,000, in shares of 
 I SI, 000 each, acting under see. 17a of the Act, 
 j whicli authorized the issue of any part of the 
 j capital stock as jireference shares, passed a by- 
 ' law in 1877, for the issue of §75,000 as such pre- 
 fi.'rcncc shares, which were to have preference 
 and prioritv as respects dividends .and otherwise 
 as therein declared, namely : 1. " The company 
 guarantees ei'dit per cent, yearly to the extent 
 of the preference stock, up to the year 1880, .and 
 over that .amount (eight per cent.) tlie net divi- 
 dends will be divided .ammifj all the sharehold- 
 ers pro rata." 2. " Slunild the holders of pre- 
 fereiK.'e bonds so desire, the company binds itself 
 to take the stock back during the year 1880, at 
 par, with interest at eight per cent, per annum, 
 (HI receiving six months' notice in writing, &c." 
 The plaintiff subscribed for .and was .allotted five 
 .shares, amounting to .$5,000, which he p.aid up, 
 i but contending that the by-law was ultra vires 
 b,y reason of the above comlitions, and the issue 
 1 of shares therefore void, Ijrought an action to 
 recover back the money p.aicl therefor ; — Held, 
 that the first conditior. of the by-law was not 
 ultra vires, as its proper construction was, not 
 that the interest w.as to be paid at .all events, 
 and so possibly out of capital, but only if there 
 were profits out of which it could be paid ; but 
 that the second conditi(m was ultra vires, for 
 that the Act neither expressly nor impliedly au- 
 thorized the comp my to accept a surrender or 
 ' cancel the shares, repaying the amount thereof : 
 — Held, however, thit the plaintiff could not 
 I recover, for notwithstanding one or both of the 
 conditions were invalid, the shares themselves 
 were valid, there being authority to issue pre- 
 ference sh.arcs, .and the plaintiff having subscrib- 
 ed for preference shares, and having got them, 
 he became a sh.areholder of the company. Lom/ 
 v. (.'iiolpli Lnmher Co., 31 C. P. 129. 
 
 The right to p.ass by-laws nccess.arily imports 
 a right to repeal the same, but this eaunot be 
 
 
Uf) 
 
 CORPORATIONS. 
 
 146 
 
 
 done to the prejiuline of a -jarty who has ohtiiin- 
 ed rights uiulcrsnch hy-laws without iiis assent. 
 Therefore the Church Society of the Diocese 
 of Huron, liaving received certain moneys, in- 
 vested the a line, and tlien a])i)ointed a commit- 
 tee to consider the future aiiplication of the sur- 
 phis of sui'li fund and on the report of tlie com- 
 mittee passed a by-law providing that every 
 clergyniMii of not less than eight years' active 
 service in the <lioeese, who was not under eccle- 
 siastical censure, not on the ('ommnti.tion Fund, 
 and not in receipt of any salary, should he en- 
 titled to S-Ol) a y(!ar. Under smdi hy-law the 
 plaint! H" wis placed on the list of clergy men en- 
 titled to sui;li allow uico of S'200 from tlie sur])lus 
 interest of sucli fuml, and for some time received 
 it, and the defendants, under an Act of the Le- 
 gislature, sueorc'ded tlie f'hnrch S .ciety :— FTeld, 
 that the ))laintilF had a vested interest in such 
 surplus interest of which he could not he de- 
 prived, HO long as he came within the provisions 
 of the l)v-la\v under which he had lie mi placed 
 on such list ; and a suhseipiont hy law repealing 
 all former hy-laws, and deidaring that all for- 
 mer grants mad(! in pursuance of prior hy-laws 
 should cease, could not affect such vested rights 
 of the ])laintitr. Wi-hjlit v. Th' /.irorp'D-a/i'd 
 Si/iwil of th<- Diorc.ic of Huron, 2!) Chy. 348. 
 Reversed in appeal. Sec 20 C. L. J. 141). 
 
 See Pa<ii' el (il. v. Aiis/bi, 7 A. R. 1, p. 1.35. 
 See also luilklner v. GrandJiinctloii Ritilwiii/ Co., 
 4 0. U. 350. 
 
 2. C'hanii'M'j ffcad Office. 
 
 The Act incoriiorating a company provided that 
 the head (ilfice might he changed from Ottiwa to 
 such other plac(? as might be determined by the 
 shareholders at any one of the general meetings. 
 At the general annual meeting a resolution was 
 passed authorizing the directors to consummate 
 arrangements for the removal of the head otlioe 
 from "Ottawa to Toronto. The directors made 
 the change, and the subsequent annual meetings 
 were held at Toronto, at the first of which so 
 hell, the by-Iiw referring to the place of hold- 
 ing the annual meetings was ann-nded by sub- 
 stituting Toronto fm* Ottawa :— ITeld, tliat the 
 change was ed'ectu dly made. T/n- Union Fir" 
 Ills, Co. V. ()'(!(ir<i: Sdiiifi I'laintiifn v. Shoulhred, 
 4 0. R., C. P. D. 350. 
 
 3. ExpaL^hin of Mtni^iera. 
 
 I'y one of the hy-laws of the defendants' asso- 
 ciation they weic empowered to expel any mi'in- 
 ber for refiiMing to submit a (piestion arising be- 
 tweiiu members to arbitration, but it was pro- 
 vid'il that such expulsion should take place only 
 aft.'r the (Use sliMiild have been siil)mitted to a 
 meeting of the assignation, due notice having 
 fir^st been given to the parties that such a m iet- 
 ing would he iield. M. & Co., meinbjrs of the 
 association, had a claim against the (il liutitF, who 
 was also a member, consisting of tlirej iteais 
 $1.0!) for balance of purchase money of grain ; 
 $3.07 for freight on same grain which they h id 
 paid under protest, and a sum for costs incurred 
 m an acticin brought by tliem to rej;>ver b lek the 
 freight so paid. The plaintKI' paid tlie lirst item, 
 but disputed the bdinoj of the ajcouut, where- 
 upon M. & <Jo. applied for and o'otaiiicd a reso- 
 
 10 ' ." 
 
 lution by defendants that there should bo an arbi- 
 tration, to which the ])laintilF submitteil, and he 
 afterwards almittel his liability for the amount 
 claimed for freight, and offered his note at twelve 
 months for it, which \V. ife Co. de :linel. Upon 
 a submission, however, being tendered him cov- 
 ering tlie three items, he refused to sign it as the 
 lirst t\v<> items were no longer in dispute. In con- 
 si!(|uence of his refusal, tlie defendants expelled 
 him at a meeting called "to receive a report from 
 the committee, regirdiiig the conduct of a mem- 
 ber." — Held, alHi-ming the decree of I'roudfoot, 
 V.C.,27C!iy. 2.'{, that the plaiiitilFwas improperly 
 cxjielled, and was entitled to be reinstated in his 
 rights of memb;'rsliip. Per Burton and Patter- 
 son, .1.1. A., that there had been no refns.al to arbi- 
 
 ' trate within the meanirig oi the by-law, but only 
 a refusal to arbitrate uiion a matter not in dis- 
 pute. Cannon v. Ttu' Toronto Com Exr/ntnge, .5 
 
 ; A. R. 2fi8. 
 
 j Per flalt, J., that the notice of the meeting fit 
 which the (expulsion took place was not a sutli- 
 eient eoin])liance with the provision wdiich re- 
 
 1 (piired that tlie object of the meeting should bo 
 
 ' specially stated. III. 
 
 Where a member of a college council complains 
 that he has been imiiroperly expelled from the 
 council, the Court of Chancery, under the Admi- 
 nistration of .Fustiee Act, has jurisdiction in a 
 ])roper case to decre'e relief, that Act giving 
 jurisdiction to the (^"ourt of ( Jhancery "in all 
 matters which wouhl be co;,mizable in a court of 
 law ; " althougii the remeily in such a case in a 
 court of law would be sought by mamlamus. 
 .Viir.ih V. Huron Colli'iji', 27 C!liy. (>05. 
 
 One of the i)y-laws of an incorporated college 
 provided, amongst other tilings, that special 
 meetings of the council migiit be convened as 
 the president should deem necessary, or upon 
 the rei[nisitiou of anj"^ three members of the 
 council, the notices of which special meetings 
 should specify the business to bo brought for- 
 ward, and that no business should he introduced 
 at any special mooting in adilition to that speei- 
 Hed in the notice. Tlie plaintilf, as one of the 
 members of the council, having acted in such a 
 manner .as in the opinicm of the president merited 
 his dismissal or expulsion from the body, a meet- 
 ing for that purpose was ordercil to be convened 
 by the president, and notices were accordingly 
 sent to .all the members of the council st.ating that 
 a meeting would be held " for special business," 
 but omitting to say what such special business 
 was. At the meeting so called, at which tho 
 plaintiff was present, a resolution was nn.animoua- 
 ly adopted, by the other miMribers of the council 
 present, expelling the ))laintitf from the council : 
 — Field, that the notice c lUing such meeting was 
 invalid, because it did not sjieeify tho business 
 intended to be brouglit before the council ; and 
 a decrei, .vas pn)ii mii :ed declaring that such re- 
 solution - f ex[mlsion had been illegally and im- 
 properly piaseil, and that tho plaintiff oontinued 
 tr. \)^ and was a m nnbjr of the c ouucil. But tho 
 e )iirt [Spragge, C.J being of opinion that the 
 plaintiff had wittingly and designedly left the 
 mcinbers of the c >uncil under a false impression, 
 as to his conduct in regard to the mittors which 
 had been tiie subject of enquiry before the coun- 
 cil— if he did not designedly produce such impres- 
 sion — refused the plaintiff the costs of the pro- 
 ceedings. III. 
 
 § 
 
 S 
 
 -J 
 
 ti.f 
 
 it: 
 
 
147 
 
 CORPORATIONS. 
 
 148 
 
 The fart that the plaintifThail atttnded a meet- 
 ing uliicli had heen illuLrally called, .n.d ha<l eii- 
 tertd ujion a defunec hel'dre the cdimeil, did nut 
 prevent his afterwaids filing a bill inipeaehing 
 the pnieeedings as irregular and invalid, lb. 
 
 'I'hc wrong (if any) comjtlained of lieing a ])er- 
 8on.ll wrong on the part of the niemhcr.s of the 
 council wiio voted for the resolution ; — Quierc, if 
 coats were adjudged to the [)hiintill', whetiier they 
 should not be jiaid by those nienihers. //*. 
 
 The reasons for whieli alono members of a 
 municipal body m.iy be disfr.inchist ', do not ap- 1 
 ply to the members of the governing body of an j 
 educatif)nal institution whether incorporated or | 
 not. III. I 
 
 (Juaire, what would form a sufTicieut ground ! 
 for tlie exiiulsioii of a mendier of such a body as \ 
 the council of Huron college. Jh. \ 
 
 Memleis of charitable and jirovident societies 
 tihould not be allowed to litigate their grievances : 
 in courts of law until they have exhausted every 
 possible means of redress aflbrded by the inter- j 
 nal regulations of their societies. Therefore, ' 
 wliere tlie plaiiititl' being expelled from the An- I 
 on nt Order of Foresters, filed his bill for restitu 
 tion thereto on the ground of illegal expidsion. 
 but it apiieared that the rules of the society pro 
 vided certain internal tribunals to whicli ho I 
 might have apjiealed for redress, Init had not, ; 
 this court refused to interfere. Exxen/ v. Coiiif 
 I'ritlc tj th, Vomlnioii, 2 O. H., Chy. 1). 590. 
 
 See L'l'iiUiu St. Joncph dc Montreal v. La- 
 piirre, 4 S. C. J{. 154, p. 177. 
 
 4. Other Cases. 
 
 Held, that the directors of a Mutual Insurance 
 Co. may under It. S. (). c. 1(!I, s. 2!), bnrroiv 
 money on jinmiissory notes or debentures without 
 passing a by-law under seal. Tin Viefi.rin Mti- 
 td.il Fire /I'ls: Co. v. Thompm)), '.]2 C. V. 47(>. 
 
 An incor]iorated company, by its charter, nas 
 authorized to carry on busiiK ss in the manage- 
 ment of real and personal property ; guarantee 
 rents thereof ; to collect rents, &c. ; jirocure 
 leans, and to negotiate the sale and purchase of 
 houses, moilgages, stocks, and other securities, 
 " and generally to transact every deseriptior. 
 of Cf)muiission and agency Ijusiness, except the 
 business of banking, and the issue of j)aper 
 money or insurance."— Held, that this did not 
 confer any power upon the company to discount 
 notes guaranteed by their endorsement ; neither 
 had they the right to speculate in the purchase 
 of mortgage or other securities, although they 
 might have bien justified in investing any surplus 
 ci pital (!i accumulation of profits until the same 
 was reiiuirnl. iVa/iiifihi/ v. Itiiit Guarantee. Co., 
 2«J Chy. 484. 
 
 See Fa Hilar v. Grand Junction H. W. Co., 4 
 O. R. 350. 
 
 VJ. Conduct of Br.siNESs. 
 
 Semble, that the amendment at j-age 362, of 
 the nport of this case, being to strike out a cer- 
 tain canon and substitute another for it, tiiough 
 moved as an amendment to a ]jroposed amend- 
 ment of such canon, was rather a substantive 
 
 motion and slnmld have been brought before the 
 Synod through the standing connnittee. Wrnjlit 
 V. The InciiriKiralid Si/nO'/ of tlie Diuei'xe af 
 Huron, 20 Chy. 348 ; reversed in apj)eal. See 
 20 C. J.. J. 14(). 
 
 Seo Chri^lojiher et al v. Noxon et a/., 4 O. I!. 
 072, p. 140. 
 
 VII. C'ONTR.Vf'TS BY AND WITH CoRrOHATIONS. 
 
 1. Contract.'t not mnler Seal. 
 
 To a declaration alleging that the I'liintid's 
 entered into an agreement with tlie defendants 
 to perform certain stone work, whicli Ihcy partly 
 perfomud, and averring as a breaeli that the 
 defendants had pi'evented them from carrying 
 out and completing the w<irk, wbereiiy, ,tc. , tlie 
 defendants pleaded the plaintiU's were an associ- 
 ation incvirporated under 1!. S. O. c. 15S, and 
 that the agreement was not under the phiintifl's' 
 seal : — Held, on demurrer that the plaintifl's be- 
 ing a trading corjioratioii, enough was not shewn 
 to niaisc the absence of a seal fatal to tlie validi- 
 ty of the agreement. The Oii/itno Cn-operettive 
 .Stone Cutler.f' A.vicia/ion v. Clarke if al., 31 
 C. P. 280. 
 
 The phnntifls were a company inciiriiorated 
 uiider C. S. C. o. (i3, and 24 Vict. c. 19, for 
 the maunfacture and s.ilo of clu'cso, &c. On the 
 10th of August, 187S, a wiitti'ii at" 'enient \\a8 
 entered into between one ( '., the plaintifl's' secre- 
 tary ami salesman, and one M., on Ijehalf, as 
 was stated, of the plaintifl's and defemlants res- 
 pectively, and which was signed by C. and M., 
 for the sale of the whole of the iilaiiitifl's' .Inly 
 cheese, as also of their August, .Se]itcn;ber, and 
 October clu:ese, at p'ices named : - Ibid, that 
 the jilaintilt's being a trading cori'orition, and 
 the contract one sjiccially rel;iting to the objects 
 and purposes of the coini)'iny, it w.is binding 
 upon them, though not under seal. JUirrt Chase 
 Cornpani/ v. Leeniin;/ it al., 31 C. P. 272. 
 
 The defendants agre* d, subject to certain tests 
 and approval, to puichase from the ]il.iintifl's a 
 steam fire engine, which it ajipeared it was de- 
 sirable the municipality should possess ; but on 
 submitting a by-law for that purpose to tlie rate- 
 payers for .aiiproval, the .-iiinie was rejected, al- 
 though an informal liy-l.iw had been ju'eviously 
 
 ' apjiidved of by them. Meanwhile the engine 
 had been received bj' the defendants, .md by 
 them subjected to the necessary tests, which be- 
 ing satisfactory they, by a minute in council, 
 
 ' agreed to accept the engine, and tlic s.inie was 
 placed in their engine-luHise, subject to the cus- 
 toms duties thereon. A few days after, on ascer- 
 tainintr the result of the voting, the defendants 
 communicated the same to the ]>laintifT"s, re-' ii- 
 (led the resolution, and requested tiieni to remove 
 the engine, which the plaintifl's declined to do, 
 and sued for the price f>f the engine : — Held, (af- 
 
 I firming the judgment of the court V)elow, 31 C. 
 
 I P. 301) that the plaintifls were not entitled to re- 
 cover : the contract for the purchase of the en- 
 gine not having been under seal, and there hav- 
 ing been no formal accejitance of it under seal ; 
 and the purchase thereof not being a matter of 
 such minor importance or daily occurrence as 
 should be binding on the corporation without the 
 formality of a seal. SiMn/ v. '/'he dirjiuration 
 of the Village o/ £>unnvilte,'8 A. R. 524. 
 
149 
 
 CORPORATIONS. 
 
 150 
 
 ■/., 
 
 See Lo)ifj v. Guclph Luvibcr Co., 31 C. P. li'i), 
 
 I p. 144. See also Murraij et al. v. 
 I Vi'iilral H. W. Co., 7 A. R. (J4G 
 
 Jiivextmeut Coinpmn/ v. 
 
 iiiij Suckty, 3 O. II. 470. 
 
 The Caiiaila 
 
 Heal L'.iliite 
 
 The itetropolitati Uiiilil- 
 
 Ouffire, whether the defeiulants would neces- 1 luent. See Pvlrie v. Guelph Lumber Co. et 
 earily be liable upon a contract not under seal even and two other rases, 2 O. 1{. 210. 
 where the benefit of it had been actually enjoyed, 
 unless in cases where the thing ordered was ac- 
 tually and urgently required, or "for work 
 which if the corporation had not ordered, they 
 would not have done their duty." I'ini v. The 
 Municipal Council of Ontario, 9 C. P. 304 ; re- 
 • i marked upon. Jb. 
 
 Semble, that a contract made verbally with 
 the president of defendant's company with the 
 plaintid' engaginff him for "the season," that is 
 early in May, until sometime in November, as 
 master, to manage a steamer, miglit be binding, 
 and tiiat a nonsuit for the want of a corporate 
 seal was properly set aside. Ellis v. The Midland 
 K. W. Co., 7 A. K. 404. 
 
 Held, affirming the judgment of the court of 
 appeal that the setting up of " the want of a 
 seal " as a defence to an action on an assurance 
 policy which had been tre.".tcd by all parties as a 
 valid policy was a fraud which a court of equity 
 could iK)t refuse to interfere to prevent, without 
 ignoring its functions and its duty to prevent and 
 redress all fraud whenever and in whatever shape 
 it appears ; and, therefore, tlie respondent was 
 entitled to the relief prayed, as founded on the 
 facts alleged in her equitable replication. The 
 London Life Assurance Co. v. Wriyht, 5 S. C. R. 
 466 ; 5 A. It. 218; 29 C. P. 221. 
 
 D., on the suggestion of It. and the Bank of 
 ()., tliat he should purchase certain lumber held 
 by the bank as security for advances made to It., 
 required a guarantee from the bank that the 
 lumliur shoidd be satisfactorily culled and any 
 deficiency paid for by the t>ank. The directors 
 of the bank thereupon resolved to submit the 
 lumber to a culler, and if ho reported satisfac- 
 torily, to give the guarantee. Their local agent, 
 however, with the approbation of their head 
 manager, without previoudly employing a tiller 
 to report, gave a guarantee in writing, but not 
 under seal, " (m behalf of the bank," that the 
 lumber should be satisfactorily culled previously 
 to shipment : — Held, that the bank was liable on 
 the guarantee for any duticieucy resulting from 
 unsatisfactory culling, for the jilaintitt's were 
 warranted in assuming that the agent giving it 
 had the necessary authority, and no seal was 
 required, and if the bank wished to repudiate it 
 they should repay the money paid to tliem ))y 
 I>. , for the lumber. Dobell et al. v. The Ontario 
 Bank et al., 3 O. It., Chy. D. 299. Reversed on 
 appeal. See 20 C. L. J. 144. 
 
 See Cleaver v. 7'he North of Scotland Canadian 
 Mortgage Co., 27 Chy. i508. 
 
 2. Other Cabes. 
 
 A company receiving money on deposit, which 
 is placed to its credit at a bank, is liable for the 
 money bo received, though the taking of money 
 by deposit be ultra vires ; anil if the officers of 
 the company use such moneys in other ultra vires 
 transactions, that may be a proper matter for the 
 shareholders to charge those officers with, but 
 it is not one with which the depositor has any- 
 thing to do. Wahnsley \. lient Guarantee Co., 
 29 Chy. 484. 
 
 Al to rescinding contracts for shares on the 
 ground of fraudulent representation and couceal- 
 
 VIII. Actions A^;D PiiOCEEi)iN(;s iiv .vnd 
 
 AGAINST. 
 
 1. Generalb/. 
 
 In these cases which were actions for calls on 
 stock, an objection was taken that there was no 
 power to sue, because the company's license 
 under 42 Vict. c. 25, O., had been revoked, Sut 
 it was shewn that one B. had been appointed 
 receiver, and was specially reipiii-ed by (jrdei of 
 the chancery division to prosecute all memliers 
 in arrear tor calls ; and that he had adopted 
 these actions, and was proseiuiting them as re- 
 ceiver : — Held, that the objection was not tea- 
 able. The Union Fire Jns. Co. v. Fit::simin:,n>i 
 et al., and another case 32 C. P. 002. 
 
 An order for security for costs cannot be ob- 
 tained under R. S. U. c. 51, s. 71, upon an affidavit 
 made by the defendants' attoriioy. Tliat section 
 requires the affidavit to be made by the defen- 
 dant personally. An application made upon the 
 affidavit of the solicil-or of the defeiulants, a cor- 
 poration, was i.'icreiore refused. Martin q. t. v. 
 The ConsuUdaled Liuuk, 45 Q. B. 103. 
 
 Where certain shareholders in a company join- 
 ed witli the company as plaintitt's, as a piecautiou- 
 ary measure merely in case it shoulil tran.spire 
 that their co-plaintiffs, the company, were not 
 entitled or unwilling to sue, tlie court (BLvke, 
 V. C.) refused to allow a demuri-er for want of 
 equity, as the objection was purely of a formal 
 nature. The City Liijht d; Heating Co. of London, 
 et al v. Mac/ie et al, 28 Chyi 303. 
 
 A demurrer to a bill filed by shareholders of 
 an incorporated company, on behalf of tliein- 
 selves and all other shareholders except tiie de- 
 fendants, in which the company were joiucil as 
 co-plaintiffs, attacking a transaction whereby all 
 the shareholde-.s including some of those \\ liom 
 the plaintiffs, assumed to represent, received 
 shares in tlie transaction sought to be impeach- 
 ed, was allowed. Jb. 
 
 The court may interfere by mandatory injunc- 
 tion on an interlocutory application, but the 
 right must be very clear iideed. Where there 
 are conflicting claimants to the position of presi- 
 dent of a company, and one claimant takes for- 
 cible possession of the company's premises, the 
 other claimant, at all events when lie is at the 
 time the acting president, can l)riiig an action to 
 restrain him in the name of the company, th(.ugh 
 it be uncertain vho is the rightful president. 
 The Toronto Breicim/ and Maltim/ Co. v. Blake, 
 2 0. R., Chy. D. 175. 
 
 See McSherry v. The Commissioners of the 
 Cobourg Town Trust, 45 Q. B. 250, p. 133 ; Pro- 
 vincial Jns. Co. V. Cameron, 31 C. P. 52,3, p. 137; 
 IValmsleyv. Bent Guarantee Co., 29 Chy. 484, p. 
 147 ; Christo^'her el al. v. Nomii, et al,, 4 O. it. 
 072, p. 138. 
 
 
 f"- 
 
 3:,; 
 
101 
 
 COSTS. 
 
 152 
 
 IX. AA iM>iN(i I'r Act. 
 
 An apiioiil iiiiil"r tlu; Act respecting the wind- 
 ins,' up ot .loint 'tuck t'Diiipaiiies, 41 Viet. c. 5, 
 8. 27, <>. , cannot be entertained wlicn security 
 has not l)een ^i^'cn ■vvitliin eight days from tiie 
 rendering of tlie tinal order or ju<lgni('nt appeal- 
 ed from. Wliere alioiid good in form witli pro- 
 ])er sureties was lilcd with tlie clerk of the Coun- 
 ty Court, on the last of the eight ilays, though 
 not alhiwed hy t'..e Judge : — Hehl, to l)e within 
 tlic words, "given .security before a. ludgi;," and 
 a sutlicient conipli.ance with the .-\ct, tiiough a 
 per.son tliu-s (iliiig a bond without allowance risks 
 being deprive(l of his right of ap])eal in the event 
 of the Ijond proving defective. /.V Union Fire 
 Im. Co. 1 A.W. 783. 
 
 The Act ai)plies to an Insurance Company 
 incorporated by the Province of Ontario, not- 
 withstanding tiiat I!. S. (». , c. UiO, provide.^ a 
 separate mode of distributing the de))osit made 
 by the company with the Provincial Treasuror. 
 An order for compulsory winding up, may be 
 made under section .'), notwithstanding a re- 
 solution had been jiassed by the shareholders 
 of the company, providing for the voluntary 
 winding up of the ail'airs thereof uiuler the 
 supervision of the directors of the comp.any, .and 
 a committee of shareholders appointed by them 
 for that pur]iose. This not being an extra- 
 ordinary resolution under sec. 4, sub-s. S, un- 
 der the circumstances apjicaring in the pidg- 
 ment ; — Held, that the discretion of the judge 
 appealed from had not been improperly exerci- 
 sed II). 
 
 X. FoRKKiX CoRrOIJATKJ.V. 
 
 Held, that Ontario B.-mk shares, though sub- 
 scribed for at Montreal and at one time registered 
 there, but transferred to Howmanville during the 
 testator's lifetime, and a[))iearingiu the stock re- 
 gister there only, were ( (ntario assets. Bluom- 
 field V. Brookr, 8 P. R. 260.— Taylor, Master. 
 
 Liability of foreign corporations to municipal 
 assessment. .See In re Xorlh n/' ScutUiml Cana- 
 dian Morfijaije Co., 31 C. P. 552. 
 
 CORROBORATIVE EVIDEXCE. 
 
 .See EviDENCK. 
 
 CORRUPT PRACTICE.S. 
 At Election.s. — .S'ee Parliament. 
 
 COSTS. 
 I. By and aoain.st Particclar Per.sons. 
 
 1. KrcculofK and Admini.itmforn — See 
 
 Executors and Admini.stkators. 
 
 2. Beceivevii — See Receiver. 
 II. Security for Costs. 
 
 1. When Ordered. 
 
 (a) Renidintu abroad and Foreiijnera 
 in Ontario, 153. 
 
 (b) CokI>i of Former Suit unpaid, 154. 
 
 (c) B(iul:rii]i(i'ii and Innohmoj, 154. 
 
 (d) In JJiviiion Coini.-i, 154. 
 (c) In Krc/iei/tter Court, 154. 
 (f) Further .Security, 155. 
 
 2. Practice in Morinij for. 
 
 (a) Time for Apjib/m;!, 155. 
 
 (b) Affidavit, 155. 
 
 3. Putlinej in Security, 155. 
 
 4. Wairer (f Riijlit to, 155. 
 
 5. Payment out of Court pending Ap- 
 
 peal, lot). 
 
 6. In Apj)e<d. 
 
 (a) From County Court — See County 
 
 Coi'RT.S. 
 
 (1)) From .Superior Courfx -See Court 
 
 OK Ai'I'EAL. 
 
 (c) To Supreme Court — See Si- 
 
 preme Court. 
 
 (d) To Priry Conned — See Privy 
 
 CorNrii.. 
 
 7. In Controrerfed Elections — See Pak- 
 
 I.rAMENT. 
 
 III. Co.srs OK THE Day, 15(5. 
 
 IV. Application for Fcll Cosr.s, 156. 
 
 V. Where Party has Succeeded only in 
 Part, 157. 
 
 VI. Unnecessary or Vexatious Proceed- 
 iN(;.s, 158. 
 
 VII. Allec.ations not Established, 159. 
 
 VIII. COMMLSSION IN LlEU OK Co.STS-.S'ee EXECU- 
 TORS AN I) A DM IN ISTRATOR.S— PARTITION. 
 
 IX. Set-off of Costs, IGO. 
 X. Taxation of Costs. 
 
 1. Co.<i Allowed. 
 
 {a) Counsel Fee, 160. 
 
 (b; Costs in the Cau.ie, 162. 
 
 (c) Other Ca.ie.f, 162. 
 
 (d) Between Attorney and Client — 
 
 See ArroRNEY and Solicitor. 
 
 2. Co.sts of Taxation, 1(53. 
 XI. Mlscellaneous Ca,ses, 163. 
 
 XII. In Particular Proceedings. 
 
 1. In Arhitrations— See Arbitration 
 
 AND Award. 
 
 2. Of Ajipculs. 
 
 (a) From County Courts-See County 
 
 Court.s. 
 
 (b) From Superior Courts-See Court 
 
 OF Appeal. 
 
 (c) To Supreme Court — See Supreme 
 
 Court. * 
 
 (d) From Judije in Chambers and 
 
 Master — See Practice. 
 
 3. Bankrujitey — See Bankruptcy and 
 
 Insolvency. 
 
 
 
153 
 
 COSTS. 
 
 154 
 
 4. CommUiiion to Exdinine Wltnesse.t — 
 
 See Evidence. 
 
 5. Prdimiuarji Examination of Parties 
 
 — See Evidence. 
 
 6. SettiiHj Aaide Fraudulent Conveijanceit 
 
 — See Fkal'dulent Conveyances. 
 
 7. Injunction— See Injunction. 
 
 8. Interpleader — See Interpleader. 
 
 9. Controv'iied EleetiouH -See Mvs icii'AL 
 
 Coup /Kations— Pauliament. 
 
 10. Partition— See Partition. 
 
 11. Petiliun of lliijht—Seu Petition ok 
 
 RlUUT. 
 
 12. In Pleadin'js—See Pleading. 
 
 13. Quietinij 7'(7Zm—.SV(; Quieting Titles. 
 
 14. Sheri[r.i Fees and Poundage — See 
 
 SllEKU'F. 
 
 15. Contesting Wills— See Wills. 
 Xni. In Particular Actions ou Suits. 
 
 1. Adniinislraiiou Suits— See Executop.s 
 
 AND Ad.MIMSTUATURS. 
 
 2. ^/(»ioH?/— See Husband and Wife. 
 
 3. Eject nienl— See IOjectment. 
 
 4. In Mortgage Suits— Sie ^Iortgage. 
 
 5. SiJeciJic Perl'oriuance — See Specific 
 
 Performance. 
 
 XIV. Lien ok Attorney for Costs — See 
 Attorney and Solicitor. 
 
 II. Security for Costs. 
 
 1. WhenOrdend. 
 
 (a) Residents abroad and Fordgners in Ontario. 
 
 Where a ijlaiiitiff resident without the jurisdic- 
 tion wilfully stated in his bill that he resided 
 within it, security lor costs was ordered. A sub- 
 stquent application to rescind the order on the 
 ground that the plaintitl' had returned within 
 the jurisilictiou and intended to remain there at 
 the time of the former application, but had not 
 then shewn the facts fully, was granted, but on 
 appeal this order was reversed, and the order 
 for security directed to stand. Sutherland v. 
 McDonald, 9 P. K. 178.— Stephens, Referee.— 
 Boyd. 
 
 Semble, that security will not be ordered, even 
 where the plaintitl' is a foreigner who has come 
 within the jurisdiction temporarily, and only for 
 the purpose of maintaining the suit, lb. 
 
 Where a plaintiff who resided out of the juris- 
 diction did not endorse his place of resideneo on 
 the writ, the costs of an application for security 
 were made costs to the defendant in the cause. 
 McCreadi, v. Jlennessy, 9 P. K. 489.— Dalton, 
 Master. 
 
 The right to security f<n' costs under rule 431, 
 O. J. Act, is absolute, where the plaintitl' resides 
 out of Ontario, and it is immaterial that the de- 
 fendant has no defence upon the merits, 7'he 
 Bank of Nova Scotia v. Lalioclie, et at., 9 P. 11. 
 503. — Cameron. 
 
 The Older is a stay of jirocni'ding.", and a judge 
 has no power to set it aside when once properly 
 issued and sign linal judgment under rule 80, O. 
 J. Act. Jh. 
 
 Quiure, as to tlio ])roper time for making appli- 
 cation for such security. //*. 
 
 (b) Costs of Fiirnier Suit nuj)aid. 
 
 The plaintifT tiled a bill .a;,'ainst R, and Ids 
 daughter, alleging that lie liad l>ct'ii in<luced ))y 
 the false representations of dufend:ints to marry 
 tiie daughter, upon the supposition that her hus- 
 band was dead, whereas he was alive : that the 
 plaintitl' was induced by H. to expend money on 
 proiierty, wliich 15. was to convey to the pl.untitf, 
 and his supjioscd wife, wlio afterwards loft the 
 plaintiff, and the |)laintitl' claimed a lien ujion .uid 
 sale of the property to rep;iy liis said cxi)endif are 
 thereon. This ))ill having l)een disniisse<l for 
 want of prosecution, the jilaintilf sued the execu- 
 tor of B. who had died, setting out his expendi- 
 ture under the false repi usuntations, and alleging 
 that alter his suiiposed wife ha<l left him li. 
 agreed, that upon receiving tliree years rent of 
 the property whicli was under lease, lie would 
 convey it to the plaintiif, and praying for speci- 
 tic performance : — Held, that the second suit was 
 not for substantially the same cause as the tirst, 
 and that defendant therein was not entitled to 
 .securitj' for costs. Caswell v. Murrai/ et al.. 9 
 P. R. 192.— Ualton, Masl<:r, Boyd. 
 
 (c) Bankruji/cij and Jnsulniici/. 
 
 An assignee in insolvency bona tide suing in 
 discharge of his duty as such assignee, will not 
 be reipiired to give security for costs on the 
 ground that he is without means, and not l)cne- 
 licially interested in tlie suit. V:trs v. Could, 8 
 P. 11., 31. — Stephens, li(ft:ree. 
 
 ^Vhere it appeared that a large number of per- 
 sons had an interest in the settlement of the (juos- 
 tion involved in the suit, and tiiey put forward 
 as plaintiif in tlie suit one of their nunil)er, who 
 was shewn to have been insolvent some years l)e- 
 fore the commencement of tiie suit, and did not 
 appear to have accumulated any propertj' since 
 his insolvency, security for costs was ordered, 
 Hatliawag v. Doig, 9 P. 15. 91. — Ferguson. 
 
 See Itohertson v. McMaster, 8 P. B. 14, p. 155. 
 
 (d) In Dirision Courts. 
 
 Under R. S. O., c. 47 sec. 244, an order for 
 security ft)r costs may be made in a Division 
 CJourt. lie Fletcher and Noble, 9 P. R. 255.— 
 Cameron. 
 
 (e) In Exchequer Court. 
 
 Where, by a letter addi'essed to the suppliant, 
 the secretary of the public works department 
 stated, that he was desired by the minister of 
 public works to otler the sum of §3,950 in full 
 settlement of the suj)pliant's claim against the 
 department, an application on behalf of the 
 Crown for security for costs was refused, on the 
 ground that the power of ordering a party to 
 give security for costs, being a matter of discre- 
 tion '>.nd not of absolute right, the Crown in this 
 
 
 ft' 
 
 .1., 
 
 
 i 
 
155 
 
 COSTS. 
 
 166 
 
 case could suffer no iiioonveiiience from not get- 
 ting Beciirity, as well as on the groiiml of delay 
 in niaiiiiig tlie application. Application for se- 
 curity for costs in this Court must be made witli- 
 in the time alloweil for filing statement in de- 
 fence, excci)t under special circumstances. Wood 
 V. The Queen, 7 S. C. J{. (LSI. 
 
 (f) Further Securily. 
 
 The usual pr.ecipe order for security for costs 
 had been taken out by the defendant and duly 
 complied with by the plaintiff. Subsequently 
 the cause was partially heard before Ferguson, 
 J., but was adjourned for three months owing 
 to the Judge lieing refpiired to open auotiier 
 sittings of the Court. The defendant thereupon, 
 seeing that the costs far exceeded the security 
 given, applied for an order for further security. 
 It was not shewn that the defendants could not 
 have foreseen that the .i?400 would not cover the 
 costs. Boyd, C. , atlirined the judgment of Mr. 
 Stephens, refusing further security. Bell v. Laii- 
 lion, 9 r. K. 100. 
 
 See S. C, pp. IGl, 162. 
 
 ' ants affidavits, and on the same day demanded 
 and received copies of them. On tiio l!(th Octo- 
 ber, the counsel a[)pe ired and obtained a further 
 I enlargement for two weeks, l)ut before the time 
 j expired a[)plied for an order for security for costs, 
 ' on the grounds stated in the report : — Held, 
 without expressing an opinion on the merits, 
 that the plaintiff had waived her right, if any, 
 to such security. Kiioi'l/im v. Knowlton, 8 P. 
 11. 400. — Stephens, Referee, Proudfoot. 
 
 The defendant demanded copies of affidavits 
 to be used on an injunction motion, and subse- 
 quently oljtained an enlargement of the motion :— 
 Held, not a waiver of his right to security for 
 costs, because the facts on which to base such 
 motion for security were unknown to him at the 
 time if the demand and enlargement. Hathaway 
 V. Dohj, 9 P. 11. 91. — Ferguson. 
 
 2. Practice in Moving for, 
 
 (a) Time for applying. 
 
 A motion for security for costs may be made 
 at any time before issue is joined. Ca-twell v. 
 Murray, 9 P. It. 192.— Dalton, MaMer, Koyd. 
 
 See The Bank of Nora Scotia v. La Roche, et 
 <tl., 9 P. R. 503, p. 154. 
 
 (b) Affidaril. 
 
 An order for security for costs cannot be ob- 
 tained under sec. 71 of the Common Law Proce- 
 dure Act, R.S.O., c. 50, upon an affidavit made 
 by defeiulant's attorney. That section requires 
 the affidavit to be made by the defendant per- 
 sonally. An application made upon the affida- 
 vit of the solicitor of defendants, a corporation, 
 Avas therefore refused. Martin ijui lam v. The 
 Consolidated Bank, 45 Q. B. 1(!3. 
 
 3. Putting in Security. 
 
 It is not essential that a bond for security for 
 costs should be by more than one obligor, if oth- 
 erwise sufficient. Fletcher v. Noble, 9 P.R. 534. 
 — Cameron. 
 
 4. Waiver of Right to. 
 
 j"he defendant was aware of the insolvency of 
 the pl.aintiff before the action was commenced, 
 but tlid not apply for security for costs until af- 
 ter issue was joined, alleging that he was not 
 before aware that the plaintiff had not obtained 
 his discharge : — Held, that the defendant had 
 waived his right to security. Robertson v. Mc- 
 Master, 8 P. K. 14. -Dalton, Master. 
 
 A petition by the defendant to reduce the 
 amount of alimony allowed in the suit, came on 
 to be heard on the 5th of October, when counsel 
 for the plaintiff appeared and procured an en- 
 largement for two weeks to answer the defend- 
 
 5. Paipnent out of Court pending Appeal. 
 
 Plaintiffs, who resided in England, obtained 
 a verdict for the price of goods in defendants' 
 possession. The defendants appeale<l to the 
 Court of Appeal, Plaintiffs applied for pay- 
 ment out of .'ir.'JOOpaid in by them as security for 
 costs on commencing the action : — Held, that as 
 the plaintiff's were shewn to have goods in the 
 country, and in the defendants' possession, the 
 .•JSOO should be paid out. But for this the plain- 
 tiff's would not have been entitled to the money, 
 the appeal being a sto]) in the original cause, not 
 a new action. Napier et al. v. Hughes et al., 9 
 P. R. 1()4.— Wilson. 
 
 Money paid into court in lieu of giving the 
 usual bond for security for costs will not bo paid 
 out to the party paying it in, in whose favour a 
 decree has been made, pending an appeal to the 
 Court of Appeal. National Jns. Co. v. Eiileson, 
 9 P. 1{. 202.-Boyd. 
 
 III. COST.S OF THE DaY. 
 
 The practice of giving costs of the day is super- 
 seded by tlie O. J. Act. No officer of the Court 
 has now power to issue a rule for such costs. 
 Where the plaintiff fails to enter the cause, de- 
 fendant should apply to a judge under rule 264. 
 The Master in Chambers has no jurisdiction to 
 entertain an ajjplication for costs under that rule. 
 Hopkins v. Smith, 9 P. R. 285.— Dalton, Master. 
 
 IV. Application for Full Costs. 
 
 Tlie plaintiff sued the defendant on a foreign 
 judgment for §240, "nd specially endorsed this 
 amount upon the writ of summons. He obtained 
 judgment in default of appearance : — Held, that 
 the foreign judgment was not a li(iuidated or 
 ascertained amount within the meaning of K. S. 
 O. c. 50, 8. 153, and that the plaintiff' was en- 
 titled to Superior Court costs. Davidson v. 
 Cameron, 8 P. £. 61.— Dalton, Q. C. 
 
 Where a cause was properly within the equity 
 jurisdiction of a County Court but the defendants 
 resided in a different county from that in which 
 the land in question was situated, the costs were 
 ordered to be taxed on the higher scale. Double ■ 
 dee v. Credit Valley R. >F. Co. 8 P. R. 416.— 
 Taylor, Master, 
 
l.'>7 
 
 COSTS. 
 
 158 
 
 § 
 
 The iilaintifl' w.ia entitled to tlie lateral sup- 
 port of tlie ilefendiints' laiiil, in wliioh they made 
 exeavatioMs for tiie purposes of a rink, vvliereby 
 the plaintitla' land was damaged. Tlie damages 
 were ass-jssed at $W, Vmt jud^'mont was given 
 for the re.storation of the plaintiff's land ;— Held, 
 that the plaintili' was entitleil to full coats. 
 HiKirr V. '/'/«' draiii/i' Curliinj and Skaliiuj Co., 
 1 0. K., Chy. 1). 102. 
 
 The plaintiff .and defendant entered into part- 
 nership to furnish (J. & W. with certain staves 
 for the price of .^2,000. The contract was not 
 fulfilled, and the jdaintitF sul)seipiently brought 
 an action anil obtained a reference to take an 
 account of tlie jmrtnership dealings. Tlic report 
 founil tlir.t the pi lintitl' had contributed to the 
 partnershi]) cai)it:il iJST.SO, and the defendant 
 ii!233.8y, and th.it there w;is due from the defcnil- 
 aiit to the plaintiff .iH^.V-i. 'I'he taxing otHcer 
 taxed the plaintiff's costs under the lower scale, 
 on the ground that the case came within C S. 
 U. C. c. 15, 8. 84, sul)-8. 1. On appeal. Cain- 
 erou, J., reversed the taxing otHcer's ruling. 
 Blaney v. McGralh, 9 P. K. 417. 
 
 In interpleader issues. See Mititurct v. Lnnn' 
 drll, 8 1'. K. o7 ; J'liipps V. Bniiiin; 8 1'. K. 181 ; 
 Bmtii V. />(•//<•'', 1» r. R. .Sl'O ; Arhll et al v. 
 Uciyer, '.) P. K. 5'2r! ; C/irisfk; v. Conway et al., 
 OP. n. 529. 
 
 V. Where Pahtv iia.s Sccceeded only ix 
 Pakt. 
 
 The plaintiff by his bill did not submit to do 
 what he was bound to do as the price of the re- 
 lief asked ; and the defendant asked relief which 
 the court could nf)t grant. The Court, on pro- 
 nouncing a decree, refused costs to either party. 
 Cli'nwif V. Booth, 27 Chy. 15. 
 
 The court refused in this case to reform an 
 instrument on parol evidence, altliough satisfied 
 that the plaintiffs ought to have succeeded had 
 the case been one depending on the weight due 
 to such evidence, and had the bill only askeil 
 for that relief would have dismissed it witix 
 costs ; but aj the hill contained a prayer for fore- 
 closure, that relief was afforded the plaintiffs, 
 subject to tlie payment of such costs as the de- 
 fendant, an assignee in insolvency, had incurred 
 in resisting a rectification of the mortgage. Do- 
 minion Loan cfc iSavint/g Society v. Darling, 27 
 Chy. 08. 
 
 In a suit seeking to restrain the use by defen- 
 dant of an oven, which had been the subject of 
 a patent in favour of the plaintiff, the plaintiflf 
 having succeeded in part only of hia claim, no 
 costs were given to either pirtj' up to the hear- 
 ing. A reference as to damages having been 
 directed, subseijuent costs were ordered to abide 
 the result. Hunter v. Carrick, 28 Chy. 489. 
 
 Where the defendant, who had covenanted 
 that only §664 was due on a mortgage held by 
 a building society on property purchased by 
 plaintiff, and hia answer admitted an error in the 
 computation of the amount due to the society, 
 and offered to pay the difference between the 
 S664 and what he alleged was the cash value 
 of the mortgage and coats up to that time : — 
 Held, that in the event of the aociety accepting 
 present payment of the cash value, the defend- 
 ant was entitled to his costs of suit, subsequent 
 to answer. Stark v. Shepherd, 29 Chy. 310. 
 
 Whore a mortgagee claimed .all the goods seized 
 by a sheriff under execution, but it appeared on 
 the trial of an interpleader issue between the 
 mortgagee and the execution creditors that some 
 of the goods seized amounting to one sixth of total 
 value were not covered by the mortgage :— Seiii- 
 ble, although the mortgagee was entitled to the 
 general costs of the issue a deduction of one-sixth 
 shouhl be made in respect of the goods as to 
 which he failed. Snj^worth v. Mcriden Silrer 
 PlafinnCo., 3 O. R., Chy. D., 413. 
 
 Held, in this case, that the demurrer being 
 )).artially successful 'and par*:ially unsuccessful, 
 neither party should get costs. Attorney General 
 V. Midland 'J{. 11'. Co., 3 U. R. 511. 
 
 See Clark v. Crei,/hton et al., 9 P. R. 125, 
 p. 103 ; Porritt v. Fra.ier, 8 P. R. 430, p. 52. 
 
 VI. Ux.NKCEssAiiv OR Vexatious PRocEEniNGS. 
 
 A summons for a writ of prohibition to a divi- 
 sion court was made absolute without costs, there 
 being no merit irious defence. Kinney v. lioclw, 
 8 P. R. 572. ' isler. 
 
 Where a County Court Judge improperly re- 
 fuses to he ir the argument of a rule nisi, manda- 
 mus is the proper remedy; and where the refusal 
 to hear had been caused by an unmeritorioua 
 objection deliberately taken and insisted upon by 
 defendant, he was ordered to pay the costs of 
 tiie application for mandamus. In re Dean v. 
 Chanibtilin, 8 P. R. 303.— Osier. 
 
 A count having been drawn so as to invito a 
 demurrer, the demurrer was overruled without 
 costs. 'Smith V. Curjioration of A ncaxter Toion- 
 ship, 45 Q. B. 80. 
 
 Where, the plaintiff's own negligence w.as the 
 occasion of the litigation between the plaintiff 
 anil V. M., one of the defendants, costs were 
 not allowed to either party, either in the Court 
 of Appeal or the Court below, up to the decree. 
 Blake, V.C. dissenting, holding, that as the liti- 
 gation was caused by J. M. the costs should be 
 ))oriie i)y him. Cumpliell v. McDoagall, et al,, 
 5 A. R. 503. 
 
 In a suit instituted to compel payment of an 
 insurance, the company raised the defence of ul- 
 tra vires, which the court (.Spragge, C. ) sustained 
 and dismissed the bill, but refused the company 
 their costs of suit, as in opposing the plaintiff's 
 claim they were resisting upon inequitable 
 grounds the payment of a just debt. Lawson v. 
 Canada Farni'-r^i' In.-i. Co., 28 Chy. 525. 
 
 It not appearing that there was any good rea- 
 son for filing a bill instead of proceeding to en- 
 force an award in the usual way, the court 
 (Spragge, C.,) refuscl to the plaintiff any coats 
 other than auch aa he would have been entitled 
 to had he proceeded to enforce the award under 
 the atatute. Moore v. Buckner, 28 Chy. GOG. 
 
 When it appeared that adminiatration proceed- 
 ings had been instituted without any shew of 
 reason, or proper foundation for the benefit of 
 the estate, and that they had not, in their results, 
 conducted to that benefit, the decision of Proud- 
 foot, J. , ordering the plaintiff to pay the costs of 
 all parties, was affirmed in appeal. Re Wood- 
 hall—Garbutt v. Hewson et al., 2 O. R., Chy. D. 
 456. 
 
 II. 
 
159 
 
 COSTS. 
 
 IGO 
 
 Sou h, rr l-lhil ami Jill. I/, K I'. 1!. .'{(il. 1>. 41. 
 S.!i) Ills.) MiCanlb v. Mm.n .7 <(/., 2 O. I!. •-'•^'.1; 
 MinliiiiilK liiiiik V. S/itirkix, I'S ( liy. lOS; Simii- 
 Hon V. //('//", '-'S Cliy. 1 ; /'/(/•./// v. I'nr/,; 11 I*. I!. 
 4'24. 
 
 Vll. All.KIJATroNS NdT I'sTAl'.lJSHKM. 
 
 Wlit'ii! (1110 of huvenil iiiMMiiia ln'iRliiiiilly i"- 
 ton'sUil uiultr the will ol a ttjaUtur, witlnmt 
 iiiiikiiig iiiiipcT iii(|iiiriL's into tlio coiulmt iiiid 
 <liiiliii;4S \silli the fMlatu l.y tliu v.xttiitois, iiisU- 
 tiited i/roco( (liiij^s ayiiiu^t tluiii, anil groiiudlcsbly 
 (■liargtti till 111 Willi iiii>?(.(iiMliKt, laiisinj; tliuiuhy 
 imicli iiiiiiLccfcsaiy costs and troulile, the court 
 liuiiig salislii'd w ith the conduct ol' tlic execuloi s, 
 icfuscd to take the hiither adniinistratiou and 
 ^villdillg \\[i ol the estate out ot their hands ; and 
 it heinj; shi wn that all the other iicisons interest- 
 ed in the estate were sati.-lied with the eoiiduet 
 (if the executors, ordered the ]ilaiiitili to jiay the 
 costs (it the suit. J{oM:lniti-li v. J'ttiri/, '^7 (,'hy. 
 
 Tlie iilaintitV claimed to lie a creditor of <)., and 
 as such tiled a Mil alleyini,' that O. was lllol•t^a- 
 gce or iither\\ i.-e entitled to some interest in the 
 lands of M., aiitl that (>. was aliout tn lisposeof 
 his interest therein in order to del'eat the claim 
 of the plaintiti, and iirayed an account of what 
 was due l>y ( '. , and to restrain M from Inlying 
 I)., and al.-o an order for M. to pay idaintill. At 
 the hearing, thi; court (Spiay;;e, C. ,) made a de- 
 (.ree reti'i'inig it to the inaslei- to ascertain what 
 vas due liy O. to the plainlitl', and if anything 
 found due that O. sliouhl Kc ordered to Jiay the 
 amount due to the iilaiutilT, with costs ; Imt di.s- 
 missed the hill as against Al., with costs. AJm- 
 :!(■■< V. Oijii'i', -7 < hy. •!.")(). 
 
 The plaintiti' transferred a covenant for the 
 liaymeiit ot .s-t,GGO, executed liy four iiersons in 
 lii.s favour to the defendant liy an absolute as.-ign- 
 nient, a« security for ?<•_', 000 ; the defendant giv- 
 ing to the jilaintiti a separate agreement, to "re- 
 assign" on iiayinent ol the loan and interest. 
 On iv hill to obtain a reassignment alleging that 
 such loan had been repaid, the court (Spiagge, ( '., ) 
 nuwlc a decree for redemption in favour of tlu' 
 plaintiti' with costs ; the defendant having set up 
 a claim to lie entitled to hold the security as ab 
 sidute purchaser thereof. J/iri)iij.iloii v. W'ovd, 
 i27C'hy. i'llo. 
 
 On a liill tiled by W. against T. and Lis sister, 
 charging them with eonsjiiracy, and impeaching 
 the deed on the ground of fraud and undue in- 
 fluence, the court (Spraggo, C.,) although satis- 
 fied that no fraud or undue intluence had been 
 practised on the grantor, set aside the deed as 
 the same had been executed without proper ad- 
 vice, but refused the plaintiff costs in cunse- 
 (juence of the unfounded charges of fraud con- 
 tained in the hill : and as against the female 
 defendant dismissed the hill, with c(jsts ; the 
 fact that the court 'was of opinion that if the 
 fullest explanations had been given to the father 
 of the nature and eli'eet of his deed he would 
 still have executed it, making no difference in 
 that respect as to what was required on the 
 part of a voluntary grantee, which T. in effect 
 was. Lavin v. Luvh), 27 Chy. 5(i7 ; 7 A. R. 197 : 
 followed in Irwiu v. Young, 28 Chy. Tnl. 
 
 'When the defendant having denied the agree- 
 ment to convey, which however was clearly estab- 
 
 lished by his own evidence, ]51ak(% \' . C. , on dis- 
 missing the bill refused to give the dcl'eiidaut his 
 costs. FirijitHuii v. Fifijii-iuii, 2iS Chy. .'tSO. 
 
 The mortgagee at whose instance the sale had 
 been etl'ccted having been made a defendant to 
 the bill and charges made of his having cunibined 
 with the agent to defraud the princiiial, all of 
 which Wile nigatived, the bill as against him, 
 was dismisseil with costs. 'J'/ioiiiji-mn v. Ilohnaii, 
 2.S Chy. .•)■>. 
 
 In a suit to set aside a conveyance ou the ground 
 of want of consideration, it was alleged that the 
 grantor was bodily and mentally iiiiirni, but the 
 evidence shew id that the only oitleiciiec between 
 
 ' the grantor and grantee was, that the foiiuer was 
 an older man than the other. The grantee, how- 
 ever, had given about the full niaiUel value ol 
 the land convey, d. and to secure put of the pur- 
 chase money had executed a mortg.'.ge thereon. 
 In (lisniissiiig the bill, the court (I'crguson, J.,) 
 directed the costs of the defendant to be deduct- 
 
 ' ed from the aiiKJiint due uielcr the mortgage, if 
 the costs were not paid w itliin a niduth, it lieing 
 
 ■ alleged that the next friend of tiie plaintiti' was 
 
 ; worthless. Tnins v. Bill, 2!) Chy. 150. 
 
 I Fraud having been charged against a defend- 
 ant will) was a solicitor, and the charge being 
 wholly nnsuppiirtcd : — Seiiibl", that it would 
 have lieeii proper not merely to de])! ive the plain- 
 tit)' ./f her costs but to allow such defendant all 
 his costs. /Vm/ v. On; il id, (i A. 1!. (i'.IO. 
 
 I'emarks as to the uiiueccssary introduction 
 of ]icrsoiial charges and assertions of motives in 
 resisting the applications in this ease and costs 
 refused in disiuissiiig it. //( re Slinilmi ami tin 
 j Uiiiinl iif Aiiilit of I lie Cuiiiili/ of IJ.'i/in, ,S O. 1{., 
 C. 1'. I). S(). 
 
 Sec I'lalt v. nih-Mnl, 21) Chy. iG. 
 
 IX. .Skt-oik ok Cosrs. 
 
 In an action in a (.'ounty Court, tiled bj' a 
 
 ' judge without a jury, ju Ignicnt was given for 
 
 1 >;'W, no order being made as to costs : — Held, 
 
 that no costs could be awarded, and a ni mdanius 
 
 was granted to the county court clerk to enter up 
 
 judgment for the plaintitf with costs, and with- 
 
 ] out allowing defendant to set off' against the judg- 
 
 I nient the difference between County and Division 
 
 ' court costs. AV O'rcut W'l. stern Advi'Vlixbuj Co. 
 
 : y. Ihiincr, 9 V. R. 494. -Armour. 
 
 ' The costs of a motion in term are interlocutory 
 ! costs, and the party to whom they are awardeil 
 I is entitled to have them set off' against the judg- 
 ment of the opposite party obtained in the same 
 cause. Youiiij v. JJohnun, 8 P. R. 253. — Osier. 
 
 Held, also, that the costs of a motion made 
 after judgment might he treated as interlo- 
 cutory, for the purposes of a set-off' under Reg. 
 Gen. 52. Jb. 
 
 X. Taxation of Costs. 
 
 1. Cods (dloived. 
 
 (a) Cotnm'l Fen. 
 
 'VMiere evidence taken before the Master sit- 
 ting for a Judge was entered in the decree as 
 having beeu taken iu court, the same fees were 
 
101 
 
 COSTS. 
 
 lG-2 
 
 taxcid to couimel before the Miuster an lietore a 
 Judye. Jidii v. Trim, 8 P. i!. 40."),— Taylor, 
 
 On im a|ii>lication for further security for costs 
 a counsel fie ot §10 was allowed. Hell v. Lan- 
 don, U r. K. ICO.— Boyd. 
 
 Held, that the Master had properly allowed to 
 defendant, in his accounts, a lee of i<U) paid l>y 
 him to counsel for advice as to his action in re- 
 siiect of two assignments of a policy of insurance. 
 nay,s V. Hayes, *2'J Cliy. 1)0. 
 
 The sujipliant, an advocate of the Province of 
 yuclic, and one of Her Majesty's counsel, was 
 retained liy the Government of Canada as one of 
 the counsel for (ireat Britain before the Fishery 
 Uouuiiission, which sat at Halifax pursuant to the 
 Treaty «' Washington. There was contradictory 
 evidence as to the terms of the retainer, but .he 
 learned judge in the Exchc(iuer Court found 
 "that each of the counsel engaged wa.s to receive 
 a refresher equal to the retaining fee ot .'51,000, 
 that they were to be at libei'ty to draw on a bank 
 at Halifax for §1,000 a month during the sittings 
 of the Commission, that the expenses of the sup- 
 pliant and his family were to be paid, and that 
 the linal amount of fees was to remain unsettled 
 until after the award." The amount awarded 
 liy the Commissioners was §5,500,000. The sup- 
 pliant claimed ijl 0,000 as his remuneration, in 
 addition to §8,000 already received by him ; — 
 Held, per Fouinier, Henry, and Tasehereau, JJ., 
 that the KUj'pliant, under the agreement entered 
 into with the Crown, was entitled to sue by pe- 
 tition ot right for a reisonalile sum in addition 
 to the amount paid him, and that .'i^8,000 awarded 
 him in the Exehe((Uer Court was a reasonable 
 sum. Per Fournier, Henry, Tasehereau, and 
 (iwynne, J J. : By the law of the Province of 
 Quebec, counsel and advocates can recover for 
 fees stipulated for by an express agreement. Per 
 Fournier and Henry, JJ. : By the law also of 
 the J'rovince of Ontario, counsel can recover for 
 "such fees. Per Strong, J. : 1'he terms of the 
 agreement, as established by the evidence, shewed 
 (in addition to an express agreement to pay the 
 suppliant's expenses) only an honorary and gra- 
 tuitous undertaking on the part of the Crown to 
 give additional remuneration for fees beyond the 
 amount of fees paid, which uiulertakiug is not 
 only no foundation for an action but excludes 
 any right of action as upon an implied contract 
 to pay the reasonable value of the services ren- 
 dered ; and the suppliant could therefore recover 
 only his expenses in addition to the amount so 
 paid. Per Kitchie, C.J. : As the agreement be- 
 tween the suppliant and the Minister of ^larine 
 and Fisheries, on behalf of Her Majesty, was 
 made at Ottawa, in Ontario, for services to be 
 performed at Halifax, in Nova Scotia, it was not 
 subject to the law of Quebec : that in neither 
 Ontario nor Nova Scotia could a barrister main- 
 tain an action for fees, and therefore that the pe- 
 tition would not lie. Per Gwynne, J. : By the 
 Petition of Right Act, s. 8, the subject is denied 
 any remedy against the Crown in any case in 
 which he would not have been entitled to such 
 remedy in I'^ngland, under similar circumstances. 
 By the laws in force there prior to 23 and 2-1 Vict. , 
 c. 34, (Imp.), counsel could not, at any time, in 
 England, have enforced payment of counsel fees 
 by the Crown, and therefore the suppliant should 
 not recover. The Queen \. Dontre, 6 S. €. 11.342. 
 
 11 
 
 (b) Costs in the C'ausi\ 
 
 In an appeal against an order refusing furti.er 
 security lor costs, the appeal was dismissed, j.nd 
 the costs made costs in the cause to tiii' jlainiiir. 
 bell v. laiidon, P. P. 100.— lioyd. 
 
 The plaintifls obtained an order for tiie issue of 
 a foreign commission to examine a w ilness. 1 he 
 order c(jntained the usual direction that tlie coi ts 
 be costs in the cause. The evidence was taki n, 
 but was not put in at the trial. Boyd, ('., held, 
 that the direction in the order as to costs did imt 
 preclude the taxing oflticer from disallowing tlie 
 costs to the plaintiffs, on the ground that the evi- 
 dence had not been used. Donniiion ilc. Co, v. 
 Stinson, 9 P. K. 177. 
 
 The venue in an action to restrain the infringe- 
 ment of a patent was changed without teims to 
 IJrockville. As the defendant has bicn slow in 
 applying, the costs of the application behiw and 
 in appeal were made costs in the cause. Aitchc- 
 «o/i V. iVann, 9 P. K. 253.— lioyd. 
 
 (c) Other Cases. 
 
 The costs of serving an infant pcisonally whi- 
 is out of the jurisdiction will not be allowed. 
 liew V. Anthony, 9 P. K. 545.— Boyd. 
 
 Expense incurred for surveys and other special 
 work of that nature, made in order to qualify 
 witnesses (surveyors) to give evidence are not 
 taxable between party and party, tlie English 
 Chancery Order 120 (1845) not being in lorce 
 here. The taxing officer refused to allow charges 
 for maps prepared to identify the tierails of the 
 line mentioned in the judgment as that which 
 the judge considered the true line, and also for 
 a certificate of the state of the cause, for a letter 
 advising of judgment, and for instructions on 
 motion for judgment : — Held, that there being 
 no error in principle, but only an exercise of dis- 
 cretion by the taxing officer, the court would not 
 interfere with his ruling. McUannon v. Clarke, 
 9 P. P. 555.- Boyd. 
 
 A bill had been filed but not served, and was 
 subsequently dismissed with costs by the plaintiff. 
 Jt appcMcd that, though no answer h.id been 
 drawn, the defendant's solicitor had received in- 
 structions to defend, some two months before 
 the dismissa;! of the bill : — Held, that defendant 
 was entitled to tax instructions, and the costs of 
 the taxation. Bisselt v. Slrachan, 8 P. K. 211. — 
 Taylor, blaster. 
 
 Held, that a prosecutor of a complaint cannot 
 appeal from the order of a magistrate dismissing 
 the complaint : as by R. S. O. c. 74, s. 4, the 
 practice of appealing in such a case is assimilated 
 to that under Dom. Stat. 33 Vict. c. 47, which 
 confines the right of appeal to the defendant. A 
 prohibition was therefore ordered, but without 
 costs, as the objection to the jurisdiction had not 
 been taken in the court below. In re Murphy 
 and Cornish, 8 P. R. 420.— Osier. 
 
 Plaintifif sued C. and G., G. being a married 
 woman, and obtained a verdi.it against both. In 
 term both defendants obtained a rule to enter a 
 nonsuit for them, or a verdict for G. The latter 
 part of the rule was made absolute. The taxing 
 ollicer disallowed the pl.iintiH' any costs in term, 
 because he had not given notice that he aban- 
 doned his verdict against G. , and taxed to her 
 
 C;: 
 
 ?c 
 
 
 
Ifi.? 
 
 COSTS, 
 
 164 
 
 ^1 ; 
 
 one li.'ilf (if tlir idsts i>f tli( term nidtiim, Imtli 
 (Icft'iiilMi'ts liiviii^^iiiipciui'il li'.'tliit s;mir;ittonii'y: 
 — Ilfld. (Ill ii|i|i(;iil, lliiit ;i pnufr iiKipnitidii nf 
 tliccoMfs ill ti nil slidiild ln! iilliK. 1(1 to tlic jiliiin- 
 tiir, iiy:iiiit (Icl'ciid.iiit ('. , !:ii<l tlic tixiiit; (ptliccr 
 Wiisdir. (fill to ( ii(|iiir(' wlictlicraiiy l)iii(liii),' con- 
 tnu't (if lit limr liid tii'di ciiU'I'imI into liy (>., •■uid 
 if not fd.ill.iw licroiilv (li«liiirs(;iiii'nt8. Clark v. 
 Cnrjlit'i, ,/ III, <l P. il. I S'l. — ( laliT. 
 
 On ;i t;ix:vtioii lictuccn jiiirty find party, in- 
 structions for rt ply will not lie idlowud, as well 
 (IB iii.stiiictiipiiM for ,st:it('niciit of claim. Hut ox- 
 pi'iiscs incurred in prociirini.; a deed, and certain 
 other (lociuiiciits, which ciuscd a saving of cx- 
 icnsc, W'lc jillowcd. Torriniri' v. Tnvrancr, 
 
 1' 
 
 ;'. 1!. '11 
 
 I'loudfoot. 
 
 .Sec Aijiiiw V. Pliiiiblt, it i". It. 4i>ij, p. •40. 
 
 2. C'li-il-i iif Ta.iiit'uni. 
 
 Held, tJiat the r,(ic;d Masteivs, ■who are paid 
 hy fees iiLstead of salary, arc entitled to cliar;^'e 
 one dolhir per hour in money under ( 'hanccrj' 
 TaritF of 'J.'Jrd .March, 1N7"), wlieii taxing eosta. 
 MrHiinnnii V r/a/7.c, !) I'. U. 55.").— Boyd. 
 
 XI. MiSlEI.LANKIH'S Ca.SES. 
 
 Costs not a.sked for in rule, though they were 
 at the b.ir ; — Held, no ohjection, as they are in 
 the discretion of court under the Judicature Act. 
 Ill ri' I'l-ck II ml till- Corjiordliiiu of the Toirii of 
 a (I It, JGQ. H, 211. 
 
 Where an indictment for ohs'.ructing a high- 
 \v.-,y had lieen removed hy certiorari, at the in- 
 stance of tile private prosecutor, into this court, 
 and the defeiidant Irid heen accjuitted : — Hehl, 
 th:it there wa.s no power to impose payment of 
 costs (>n such prosecutor. Jfciiiini v. //art, 45 Q, 
 B, 1. 
 
 The Court, however, has power to make pay- 
 ment of costs a condition of any indulgence 
 granted in such a case, such as the postponement 
 of the trial or a new trial, Jb. 
 
 Ilight to recover costs from opposite party 
 where attorney is paid a tixed salary. See Ste- 
 veiLiim V. ('Driioral'wH uf Kbiijitton, 31 C. P. .33.3, 
 p. 43. Sec 4G Vict, c' 18, s'. 280, sub-s. 3. 
 
 The question as to jurisdiction being impor- 
 tant, and open to reasonable doubt, no costs 
 wei'e allowed. Re Xuiih Vurk Election. — Pater- 
 son V. Miihch, 32 C. P. 458. 
 
 Costa refused on ground of delay. See Hyde 
 V. Barton, 8 P. R. 205. 
 
 Where affidavits used on a motion were badly 
 M'ritten, scarcely legible and difficult to decipher, 
 the Court refused the plaintifif all costs connected 
 with their preparation, although the costs of the 
 suit were given him. Burnham v. Garvey, 27 
 Chy 80. 
 
 Where the petitioner had carefully abstained 
 from ascribing fraud or fraudulent conduct to the 
 plaintifif, and the circumstances were such as to 
 invite discussion, the court in dismissing the 
 petition did so without costs. Bicker v. Bicker, 
 27 Chy. 576. 
 
 The wrong (if any) complained '-f being a per- 
 aonal wrong on the part of the members of the 
 
 council who voted for the resolution t — Quicre, 
 if eo.its were adjudged to the pliintill', whether 
 they should not be paid by those members. 
 Miuxh V. Hurini Culleiji; 27 Chy. «05. 
 
 Where, on a dissolution of partnership between 
 the plaintiir and defi^ndant, it was agreed that 
 the dt'fendant should wind up the concern, and 
 the plaintitl having dem.iiided a statement of ac- 
 count the defendant rendered an nntru<( and im- 
 perfect one, whereupon tln^ nlaintiff br(Ui(,dit thia 
 action for a winding uj), claiming that the defen- 
 dant was indebted to him on account of partner- 
 sliiji assets i'eeeived, which the defendant denied, 
 aii(l the plaintiir Hueeeeded :— Held, that the de- 
 fendant must pay the costs of the suit, Gar- 
 miehiiel V. Sharp, 1 O. K., Chy. 1). 381. 
 
 The t(.'stator was seized of certain lands which 
 were subject to incumbrances, and by 'lis will 
 directed the same to be sold if his sons in succes- 
 sion should not redeem. Uiie of the sons, \i. to 
 whom the lirst privilege of redeeming was given, 
 a vailed himself thereof and redeemed the property, 
 which was subject to certain ( barges imposed by 
 the will in addition to the incumbrances : — Held, 
 that the right to redeem was in elF-'ct a right to 
 purchase, as the mortgages and charges created 
 by the will amounted to abimt as much as the 
 land was worth, and that R. had ac(piired a 
 good title free fnuii any claim of his brothers ; 
 and his brothers having instituted proceedings 
 against him claiming an interest in the estate, 
 that he was entitled to recover his costs not out 
 of the estate of the testator but from the plaintiff 
 pers(uially. Stevenson v. Slevennon, 28 Chy. 232. 
 
 A person of the same name as the <lefendant 
 served by mistake with the writ in the .action, 
 was (leld entitled to his costs of opposing a mo- 
 tion for judgment under Pule .324, (). J. Act. 
 Lumx V. Fraser, 9 P. R. 319. — D.ilton, Manter. 
 
 I'oyd, ( ". overruled a demurrer without costs, <as 
 it was the first occasion the point decided under 
 it had arisen since the Judicature Act. Bumohr 
 v. Marx, 'i9 Chy. 179. 
 
 Two of the four convicting justices were li- 
 censed auctioneers for the county, and persisted 
 in sitting after objection taken on account of in- 
 terest, though the case might have been disposed 
 of by one justice : — Held, that they were dis- 
 qualified, and in quashing the conviction on that 
 ground the court ordered them to pay the costs. 
 Beijiun v. Chapman, 1 O. R., Q. B. D. o82. 
 
 Held, on further directions, that the costs hav- 
 ing been incurred in a proceeding consented to 
 under a common mistake of parties as to the 
 proper tribunal to decide the question, each 
 party should bear his own costs. Dalhy v. Bell, 
 29 Cliy. .^36. 
 
 An order was made by the Master in Chambers 
 changing the venue from the Assizes at Simcoe, 
 for which notice had been given, to the Chancery 
 sittings at London. The judge presiding at those 
 sittings having refused to take the case, as it be- 
 longed to a Common Law Division: — Held, with- 
 out determining whether the master's order was 
 a proper one, that the plaintifif was justified in 
 acting on it, and his costs occasioned by the abor- 
 tive attemptat trial, were allowed to him. Schwab 
 V. McOlowjhlin, 9 P. R. 475. — Cameron. 
 
 Sureties sued on a bail-bond, obtained an order 
 to stay proceedings on the render of their prin- 
 
 ! 
 
 
164 
 
 1(15 
 
 COUNTY COURTS. 
 
 lOG 
 
 i!il),il, "upon payinoiit of cnnta."— Held, that 
 tliu uonls "upon paj-mcnt of costs" arc wonln 
 of agroDniunt, not mero words of comlition, and 
 thit exocution for tlio costs was properly issued 
 under tlie order. Stuart v. Itnuitou H at, 9 l". K. 
 50(5. — I alton, Mauler. 
 
 M. being seized in fee of land mortgaged to the 
 plaintiir, and then sold to I), expressly subjeet 
 U\ tl e niortgige. I), sold to one Maybe in the 
 same manner, and Maybe soM to defendant, who 
 had notice of the title, covenanting against in- 
 cumlirances. The plaintitl' proceeded against M. 
 anil tile defendant and olitaim.'d juilgniont for 
 sal(^ on nonpayment and costs, whereupon de- 
 fendant (laicl tlie plaintilla claims for debt, in 
 tcrest iind costs, and took an assignment of the 
 iuilgnieiit and mortgage; — llidd, that tliu defen- 
 dant li i<l no right under such jidgnient to levy 
 from M. any jiortion of the costs so paid, for 
 if ho Were allowed to ilo so, ,\I. by tile elFcct of j 
 th(! coiiveyanc(!s would have a riMiiedy over for 
 them against tlie land defc^iidant's i)roporty, and 
 couM then force defendant to pay them back. 
 Ki'injit V. Macaiiliji, U I'. K. .'iSi.'. — IJalton, Mim- 
 In: 
 
 See fiiijicrldl Hank v. Dickr//, 8 P. II. 240, ]) 
 34. 
 
 COUNCIL. 
 
 See MuNK'ii'Ai. CoKron.iXiONS. 
 
 COUNSEL. 
 Sae Bai!I!i.sti;i! at Law. 
 
 COUNTER CLAIM. 
 
 ^W Pi.EAKI.SU. 
 
 COUNTY ATTORNEY. 
 
 Where the account of the county attorney of 
 York for the quarter ending 31st September, 
 1870, for expenses connected with the adminis- 
 tration of criminal justice, was audited ))y the 
 county board of aiulit, and paid, but certain of 
 the items were disallowed by the provincial treas- 
 urer as not payable by the Crown out of the 
 consolidated revenue fund, not being contained 
 in the schedule, and the board of audit, there- 
 fore, in auditing the county attorney's account 
 for a subsequent quarter, deilucted therefrom the 
 amount of said disallowed items a mandamus was 
 granted to the board to rescind their order for 
 such deduction. In re Fcutov, Comity Crown 
 Attomeii of the Counti/ of York, anil the Board 
 of Audit of the Count}/' of lork; 31 C. P. 31. 
 
 Under an Order in Council the County Attor- 
 ney is entitled to §4 ou receiving and examining 
 all informations, &o., connected with criminal 
 charges for the Court of Assize, &c., upon the 
 certificate of the Crown counsel that such fee 
 should be allowed. One C. on being brought be- 
 fore the county judge on twenty-five charges of 
 larceny, having elected to be tried by a jury, 
 was tried at the ensuing assizes and convicted 
 
 on thre(> of them : but the ronmining twenty- 
 two cases were not tric'd. The plaintitT, a county 
 attorney, obtained the Crown connsers certiti 
 eate for ami charged a fee of .'?4 in each of tho 
 above twentytive eisos, which was passed by 
 the board of amlit. and paid by tliL^ county 
 treasurer, but upon the twenty-two untried 
 cases l)eiiig (lis ill(i\-.'d by the Provincial Treas- 
 urer and his decision communicated to tho board 
 of auilit, they dediii'tcr, the amount from a subse- 
 quent account :--HrM, that a mandamus wcmlil 
 not lie to tli(^ bo'vrd of amlit to n^sciiid their 
 order, the rulir^' of tlu> Pnivincial Treasurer be- 
 ing a good re iHoii for deducting the amount whii'll 
 was a matt(!r for tlioir discretion uuiler the U. S. 
 O. c. Si"), /n re Sfaii/iin and the linaril of Audit, 
 of the Conntii of E'jhi, 3 (). 1!., (!. P. I). 8(5. 
 
 A fee of fifty cents is allowed to tho county 
 attorney for attendance in the County Judge's 
 Criminal Courts, and making the necessary en- 
 tries for each i)ris mer not consenting to be tried 
 summarily, The (ilaintifi" charged (ifty cents for 
 actual attendances and making the niscessary 
 entries in eacdi of the twenty-live charges pre- 
 ferred against C, which were sei)arately road 
 over to him and his (dection taken thoremi. The 
 three cases <in which the jiriaoner was actually 
 tried were only .dlowcd by tho board of audit, 
 on the rilling of the Provincial Treasurer : —Held, 
 that for the same reasons, as above a mandamus 
 would not lie to the I oard of au<Ht to allow the 
 fee in the other cases. //>. 
 
 Tho plaintiff claimed 81 for an aflidavit verify- 
 ing tho jurors' hook, and ijil for a certi'icate 
 drawn up by him for tho county judge to sign, 
 of tho receii)t of such books, &c. The tariff 
 allows SI " for each cortiticato rc(]uired to be 
 entered in the jurors' book to verify the same:" — 
 Held, that these foes could not be allowed, and 
 that a mandamus would not lie. Ih. 
 
 35. 
 
 See Van Norman v. Orant, 27 Chy. 498, p. 
 
 COUNTY COURTS. 
 I. Judge. 
 
 1. Appointment of, 167. 
 
 2. Proci.ediiujs Ayuinst, 1G7. 
 
 3. Of Divinion Courts — See Division 
 
 Courts. 
 
 4. Mandamus to — See Mandamus. 
 
 5. Prohihition to — See Prohibition. 
 
 6. Appeal to from Court of Eeviiion — See 
 
 Assessment and Taxes. 
 
 II. Jurisdiction. 
 
 L Liquidated and Unliquidated Claims, 
 168. 
 
 2. Equitable Jurisdiction, 169. 
 
 3. Title to Land in Question, 169. 
 
 4. Other Cases, 169. 
 
 5. Counti/ Judges Criminal Court, — See 
 
 Criminal Law. 
 
 III. Practice, 170. 
 
 
 
 li 
 
107 
 
 COUNTY COURTS. 
 
 16S 
 
 IV. AlTKAl, HUiM. 
 
 I. 117(1 <i Aiipinl Lifx, 171. 
 
 '2. /iil'riiiiri' lillik III Ami'<'< I >iniin[li.-<, 
 
 \T1. 
 3. CiiMx, 17'-'. 
 V. Ai'i'i.ir.\ri(iN Kou Fi'1,1, Cmhth. 
 I. (•fiiffdllii — .Sec CiiMT.-i. 
 '2 In lull i-pli'tulcr- Sft In ri:Hri.r.Ai>i;ii. 
 
 1. J t Dili;. 
 
 1. Ajijioiiihiii III (//'. 
 
 Hold, th.'it tlic ('iiiiiMiiH.sidh ill tlii.4 i;iiM(! ,a])]ioiiit- 
 iiig II |ii'|iuty .liiil><o iImi'Iml{ {jltaHiirt' niiil tiic 
 alweiH't! ()' tiiu ( oiiiily .liiilj,'i' \v!W validly iHHUiil 
 undur I!. IS. (I. u. ■!»', mid tiiiit it, was not cshuii- 
 tial ti> ('iial)li; tlit: l)('|iiit,y Jiid^u to act tiiat tliu 
 (Juiuity .liidgc Mliiiiild \h: aliHi'iil iriiiri lliti cuuiity. 
 HeijiiKt V. /V«, :» (». ]{., C. 1'. I). 107. 
 
 2. I'riicced'nujn Aijainxt. 
 
 (!ertiiiii (;liai>,'i'« having liuen proftirtd Jigaiimt 
 a County Court .luilj^c, a cnnmiission was iH.suud 
 under tlieCiroat So.il of t'ariada, rtciting these 
 faotH and tho imivision.s ot 'Z'l (iin.K III. e. 75, 
 (Imp.) and diivcting the coniiiiiHsioners to ex- 
 amine into the charges, and for that imrpoHc to 
 Hummoii witiitsHiH, and rciiuire them to give 
 evidence on oath and proihiee papera ; and to 
 report tlurciiiMin, 'I'iie enquiry proceeded, iind 
 a motiiiii wa.H made f(U' a prohibition : — Held, 
 that en((uirie8 uniler the linjierial Act Mlu)uld he 
 made hefore tiio (ioveriior (General in (Vmncil, 
 and tlie authority could not be delegated, nor 
 enuuiry upon oath authorized by eommission : — 
 Held, alHo, that the commission could not be 
 support«<l at <:oninion law, for it created a court 
 for hearing and eniiuiring into ofienccH without 
 determining, lie Squier, 4() Q. H. 474. 
 
 The C. S. C. o. 13, and 31 Vict. c. 38 (I).) 
 give power to issue commissions for enijuiring 
 into the administration of justice when the en- 
 quiry is not regulated by any special law, and 
 an encpiiry into the conduct of any one con- 
 nected with the administration of justice is with- 
 in the meaning thereof. lUit :— Held, that this 
 enquiry into the conduct of a County Court 
 judge falls within the exception in tho Act, he- 
 ing regulated by C. .S. U. C. c. 14, s». 1 and 4, 
 wliich are a special law for such cases. lb. 
 
 The 32 Vict. c. 22, a 2 (0.) ; 32 Vict. c. 
 26 (0.) ; 33 Wict. c. 12, s. 1 (O.), and E. S. 0. 
 c. 42, 8. 2, assuming to repeal U. S. U. C. c. 14, 
 and C. S. U. C. c. 15, s. 3, and to abolish the 
 Court of Impeachment for the trial of County 
 Court judges, and regulate their tenure of othce 
 are ultra vires of tho Provincial Legislature. lb. 
 
 The tenure of ollice of the County Court 
 judges is still regulated by C. S. U. C. c. 25, a. 
 3. lb. 
 
 The different modes of proceeding against 
 County Court judges for misconduct pointed 
 out. lb. 
 
 II. JrHiMHK rioN. 
 I. Lhiiiiilutiil mill I'liliiiiiiiluii'il fUiiviA. 
 
 Till! iilaiutiir sued the defendant on a foreign 
 judgment for 4i24(), ami specially endorHcil thix 
 amount upon the writ of MiimnKJUs. Me obtained 
 judgment in def.iult of ap|iearance; llild, lli.it 
 the foreign judgment wan not u liiiuiilateu or 
 aHci'rtaimd ainouTit within the inianing of It. S 
 (). c. M. .s. IM. IhiciilxuH V. Vnmiruii, 8 I'. H. 
 lil. Halt <^ C. 
 
 \ ( 'oiiiity ( ourt has jurisdiction to try a cl.iim 
 up to .'riioo! wliich is made up of an ii'diiiiiid.ited 
 niiiouiit of less th.in .V-OO, and the liahiiico oi a 
 liijuidated amount. Voijt v. lioijle, 8 I'. U. 2-1'J.— 
 Ilttgarty. 
 
 The plaintiff sued in the County Court on the 
 indcbit.itus count for .'?.'t7.'), claiming by his ii.irti- 
 culaiH, b.ilanco due from defendant to Ist .Nov., 
 l877,.'?!l-(): wages from Ist Nov., 1877, to IstN'ov., 
 I87H, .S.'iiiO ; less amount p.iid 81<)<'. I''.daiicc. 
 .V3'J0. On objection being takiii at the trial to 
 the: jurisdiction of the County Court, the plain 
 till' was allowed to anienil liy striking out nil the 
 items except the first : ■ Held, allirming the ju.lg- 
 uient of tho County Court, th.it Hie particulars 
 were no part of the record, which shewed an 
 amount within the jurisdiction of the t'oiiuty 
 Court; but Held, also, tlu't judgment for that 
 sum would be a bar to any iulure action for work 
 done at any time before the eommencenn'iit of 
 this suit, fhiridniiii V. Thi' liflhvlUc and ymth 
 HanliiKjn Ihiiliray ('iiinjidiii/, 5 A. H 315. 
 
 Action for the price of thirty hogsheads of 
 goods, it appeared that K. sold to S., the ile- 
 
 1 tendants' testator, acaiantity of goods, whic'li K.. 
 in his evidence, said was a definite (luantity, 
 
 I which li(! could not recollect, but not less th.lli 
 thirty hogsheads Jind not more than forty, at the 
 price of irflO per liogsliead^llehl, that tlie de- 
 mand was liiiuidated by the act of the parties at 
 the time of sale, and the action was tluietore 
 within the jurisdiction of the ( 'ounty < 'ourt. I'cr 
 I'atterson, .1. A. —That it was not improper to 
 leave to tlut jury the question whether the amount 
 was ascertained by the act of the parties. Wal.iun 
 V. Severn I'l al., A. II. 550. 
 
 In an action in a County (Jourt on a promissory 
 note niivde by the defendant, in which the defend- 
 ant claimed inde/nnity .against the third jiarty. 
 the third p.arty having apiie.ired, the learned 
 Judge of the County Court directed <:ertain issues 
 to be tried between the defendant and the third 
 party. At the trial he found for the plaintiff, 
 and investigated .accounts between the defendant 
 and the third party amounting to more than .$10,- 
 000, upon which he found that a balance of more 
 than $3,000 would be payable to the defendant, 
 and he directed that the third party should, out 
 of this balance, pay to the defendant the amount 
 of the plaintiff's claim. On a motion for .-. prohi- 
 bition:— Held, that the order directing tho issues 
 between the defendants and the third party, with 
 the proceedings taken under it were right. Held, 
 also, that as the only relief which could be given 
 to the defendant against the third party, was 
 protection against tlie demand of the plaintiff, 
 which was with'- the pecuniary jurisdiction of 
 the County C ni^c, the learned judge was not act- 
 ing beyond iiM jurisdiction in investigating ac- 
 counts of Eu.ns beyond his jurisdiction. Neald 
 V. Corklmlale et at., 4 O. R., Q. B. D. 317. 
 
168 
 
 169 
 
 COITNTY rOlJRTM. 
 
 170 
 
 2. I'jii'i'ilnhh' Jiirisilic/inii. 
 
 The ('c)iiiity (,'iMirt on itHtH|iiity Mv li.id |MP\vi'r 
 til >;niiit uii ill juiictiiiii in any l^■lnl• cMiniin;,' within 
 itH juriMdic'tiiin. 'l'\w t'lict oC tlic tith: to iaml i:iini 
 in^ in (iiicMtiim liiil not onst the jnriHtlictioii of 
 till' ('oiiiity Coiii't on itx Dipiity aido. /^"' v. 
 Trim, 8 I', IJ. 4(l.'>. 'I'liylor, Mt'i»tcr. 
 
 S(M! Ih,i,hl,,ln' V. Vl'rilit Villh'H It. W. Co., 8 
 
 V. n. 4iti, p. iwi. 
 
 3. Tltfi' to Lund ill Qiii'iUdii, 
 
 S., \w\\n indt^litt'il to thi' ]il:until1'M, iMitiu-cd 
 into an iijjrci'incnt to niorti^'.iuc to thuni, iinioni,'Mt 
 oth'V hinds, i-crtaiii lands known an tho l)(i- 
 iiiinion liotid projicrty. A iiiorl v'mj^c was on thi^ 
 same day uxucntL-d, lint Ky niistaki; the I >oininion 
 Hiitiil |iio]M;rty was oinittcd thcrrlroin, and a lot 
 t'oiMii'i'ly owni'd liy S, adjaitciit thrrcto iiisi'i'ti'd. 
 Till' di't't'iidiint had liiii'ii thu tiMiant iit' S., and 
 aftii- till! niorti,'ig(!, iittiii-niMl and paid soniu ri'iit 
 til tlii^ [ilaintill's, hclicvini,' theni to havr ii title 
 til the lands. In an action for arriiars of rent : — 
 Held, allirniini,' the iiiili,'nieiit of the ( 'ouiity ('oiirt 
 of ^'ork, that after such attornment and jiaynieiit 
 of rent, the defendant eimlil not lie iieard to deny 
 the plaintill's title, and they liein;^ the ei|itit ililu 
 owners of the land, were entitled to roeovei : — ■ 
 Held, also, that the title not lieini,' oiieil to ijues- 
 tiiin liy the defendant the Coniity Court had 
 jnrisdietiiin. /imd' d/' Mmilriitl v. (/ilc/iri-i/, (> A. 
 K. (jr)!t. 
 
 See Itiir V. Trim, 8 P. I!. 405. 
 
 4. Otiiir Cdni'K, 
 
 A Ciinnty (.'ourt judi,'e has power to give a liat 
 in 'I'erin time for the issue of a writ of i|Uo war- 
 ranto to try a eontested Municipal ICleetion ; - 
 Held, that Rule 1 M, T. 14 Viet, has become in 
 operative liy the elFi'et of anliseijnent statutory 
 cnaetruents to which it is repugnant. Itcninii 
 ex ri'L, McDowilil v. Aiiil<-rmii', 8 P. R. 241. - 
 Osier. 
 
 An issue had licen dii'i.eted from a f 'ounty ( 'ourt 
 to one of the Superior Courts under R. S. (). c. 
 49, a. 12, to try whether a conveyance of certain 
 lands by a judgment debtor was fraudulent, anil 
 the County (!iiurt had delined the issue to bo 
 tried, and the time and jjlace of trial. The plain- 
 tiff, in pursuance of the direction, prepared and 
 delivered the issue to defendant, the grantee in 
 the conveyance, who did not return it ; and the 
 pLiintitf, after the time for trial had elapsed, ap- 
 plied in the Superior Court for an order absolute 
 for sale of the land : -Held, such order could 
 be made only in the County C!ourt, whence the 
 issue had been directed, and that the Superior 
 Court could only try the issue, and could make 
 no final disposition of the matter : — Held also, 
 that the application was not in any event well 
 founded, as the plaintiff should have proceeded 
 with the trial of the issue. Quiere, as to the 
 granting of a new trial, or reviewing the verdict 
 upon such an issue. Merchants' Bank v. Brooker, 
 8 P. K. 135.— Osier. 
 
 A verdict was entered for the plaintiti on the 
 trial of an issue directed by the Court of Chan- 
 cery, to be tried at the sittings of the County 
 Court of the county of Duflferin. The County 
 
 Court judge Met aside the verdict and entered a 
 nonsuit, on grounds embracing matters of law am 
 well as of fact and evidence : Held, that he had 
 no powi'i L.hIoho, and that theiipplieation shouhl 
 hive been mule to the Court that diriictcd tho 
 issue. Bai-br v. LnMon, 1) P. R. 107. -Pronil- 
 
 foot, 
 
 Held, that interpleader biHiig a procooding In 
 the action, a( 'oiinty Court judge niicler Rule 422 
 (). .1. Act has jurisdiction to entertain it, but in 
 this case the judge having disposed of the matter 
 summarily without the eonseiit of the parties, an 
 issue w.iH directed. Coiilsun v. S/ilrr.i, U. P. H. 
 4<tl. Osh.T. 
 
 Power of County Court judge to set aside writ 
 of ipio warranto when issuecl on his tilt. See 
 /i'ci////'( '•.!• ril. < I runt v. Culi'muii, H P. R. 4'.»7 ; 'S'. 
 C.'k; (^». IS. I7'i ; 7 A. R. (;i!t; lluin'i >■■•■ rel. 
 <)' f)iri/rr v, Ijcwih ; Siili iinm Itiiiiiia i\r lU'l. DmKe 
 V. Li'wis, 8 \\ R. 4!t7 ; .'!2 C. ' P. lOt ; 7 A. R. 
 (il!). 
 
 As to jurisdiction of High Court of .lustico to 
 interfere with County Court juilges onlenfor im- 
 Miiiliate possi'ssion ol land taken under R. .S, (>., 
 e. I (!."), s. 20, siib-H, 2.S. See JiiiLiii.t ct at. v. The, 
 Cnitral Oiitarw U. W. Co., 4 O. R. olCl. 
 
 Id 
 
 III. Pll.MIK'K. 
 
 d, that in case of interpleader by a sherifl' 
 
 between two idaimants, one a pliintill' in a Supe- 
 rior Court suit, the other a plaintiti' in a County 
 Court suit, the ■■ipiilieation for an intcrpleailer 
 order was properly niadi; in the Superior (y'ourt, 
 although the seizure was made under the (^'ounty 
 Court writ before the Suiierior (Jiiurt writ came 
 into the sheritl's hands. Strnni/K v. Toronto 
 Tiln/ra/ih Co., 8 P. R. 1.— Dalton, Q. C. 
 
 Held, that there is no appeal to the full Court 
 ill term from an order of the clerk of the (Jrown 
 and jileas made on an application to change the 
 venue in (Jouiity Court eases under i{. S. O., c. 
 50 s. 155 ; but the only a[ipeal in such cases is 
 to a judge in Chamliers under sec. 'M of the 
 Act:— HeM, however, that if an ap[)eal did lie 
 to the full ( 'ourt it might be made direct thereto 
 without limt going before a judge in Chambers. 
 Afahon H al. v. NicholU, SI C. P. 22. 
 
 Semblo, in such cases, the proper course is to 
 follow, as laid down in the .\ct, the jtr ictice in 
 force in the Superior Courts ; an 1 that the mere 
 fact of the cause of action having arisen in the 
 county to which it is sought to change the venue 
 is not of itself sulRcient to outweigli any actual 
 preponderance of convenience arising from other 
 causes in favour of retaining the venue where 
 the plaintiff had laid it. lb. 
 
 Where a rule nisi in a County Court was or- 
 dered by the judge to stand over until the next 
 term : — Held, that it was not necessary to take 
 out a rule to enlarge the rule nisi to prevent it 
 from lapsing. In re Dean v. Chamherlin, 8 P. 
 R. 303.— Osier. 
 
 In an action in a County Court, tried by a 
 judge without a jury, judgment was given for 
 !J3(), no order being made as to costs : — Held, 
 that no costs could oe awarded, and a mandamus 
 was granted to the County Court clerk to enter 
 up judgment for the jilaintitf with costs, and 
 without allowing defendant to set oflf against the 
 
 I? 
 
 Pi 
 
 «.■■ . 
 
 CA- S 
 
 ■X' 
 
171 
 
 COURT OF APPEAL. 
 
 172 
 
 173 
 
 judgment the difference between County and 
 division Court coats. lie Clirat H'<;.s^-;'« Ailcer- 
 lixiiKj Co. V. Jiainer, I) 1'. K. 4U4. — Armour. 
 
 See McrclKtitts' Bank v. Bruuhr, 8 P. R. 133, 
 p. 1C9 ; narbn- v. Li,so>i, 9 P. P.. 107, p. 170. 
 
 IV. Al I'KAL FKO.M. 
 
 1. Wlicii appial Uev. 
 
 Although tlie jurisdiction of the Court of Ap- 
 peal is not limited to iippmls from the County 
 Court 118 it is in appeals from the Superior Courts, 
 under s. IS, .subs. 3, of the Appeal Act, it will 
 not in ordinary cases interfere where a new trial 
 has been refused liy the County Court upon a 
 matter of discretion only, Cainiibell v. J'rinci', 5 
 A. R. 3;i0. 
 
 In this case, however, being an action for 
 assault against a public oflicer, in which the jury 
 had found a verdict oi .'5l00, and a new trial, 
 a.sked for on tlie ground that the verdict was 
 against evidence, was refused, the Court of Ap- 
 peal granted a new trial, as the evidence strongly 
 preponderated in the defendant's favour and 
 there was reason to believe the jury had been 
 misled by the charge. As the judgment was 
 v.iricd in a matter of discretion no costs were 
 given. 11). 
 
 The verdict herein was .set aside by the County 
 Court, and a nonsuit entered upon a ground not 
 taken as a defence at the trial or in the rule nisi : - 
 Held, reversing the judgment that the learned 
 judge erred in giving elTect to the objection, 
 which, if taken ai the trial, would have been met 
 with an aaien<lnient. As the evidence shewed 
 that tlie plaintifl' was entitled to succeed upon 
 the merits, the appeal \\ as allowed, and the rule 
 ill the Court below discharged. L'laiki' ct al v. 
 Uan-Mi, 6 A. R. 309. 
 
 Where the County Court ju<lge granted a new 
 trial owing to his dissatisfaction with the verdict, 
 the court relused to interfere with his discretion, 
 as it did not apjjcar that lie was clearly wrong. 
 JJuiiUr V. Vandune, 6 A. R. 337. 
 
 In an action of replevin the defendant, for a 
 second plea, avowed for board due by plaintiff to 
 him as a boarding-house keeper ; and for a third, 
 avowed tor a lien on the goods of plaintifl' under 
 R. S. O., c. 147, s. 2. On the trial, before the 
 judge of the Countj' ''ourt (York) without a 
 jury, the cviilenee as to whether the defendant 
 was the keeper of a boarding-house was contra- 
 dictory, but the learned judge decided in favour 
 of the plaintifl', holding that the defendant was 
 not a boarding-house keeper. On appeal this 
 finding of the County Court judge was atiirmed. 
 although, had the matter conm before this court 
 in the Hrst instance, it would have decided other- 
 wise, and under the circumstances, no costs of 
 the appeal were given to the respondent. Mtea 
 V. McKeoWK, 7 A. R. 521. 
 
 The court, having no power on an .appeal from 
 the County Court to amend the record, allowed 
 the appeal on payment of costs by the appellant, 
 so far as to direct the issue of a rule nisi, upon 
 the return of which in the court below, the 
 necessary amendment could be made. WiUun 
 V. Brown et al., 6 A. R. 411, 
 
 This case had been remitted to the Court be- 
 low, this court being of opinion that the record 
 shoulcl be there amended and a verdict entered 
 for the plaintiff against the defendant B. alone 
 (6 A. R. 411). The learned judge of the County 
 Court, instead of entering such a verdict, direct- 
 ed a new trial, the parties to apply to amend their 
 pleadings as tliey might be advised, so that B. 
 might raise any defence which he was not obliged 
 to raise in the action on the joint liability :— 
 Hehl, that the direction of the learned judge of 
 the Cimnty Court as to the way in which he 
 thought it most just to the defendant B. that 
 the a])plication to amend should be made, w.as 
 an exercise of his discretion with which this 
 Court would not interfere. <S'. C, 7 A. R. 181. 
 
 Appeal in garnishee proceedings. See Vati 
 Xoniniii V. antnt, 27 < 'hy. 498, p. 35 ; Sato el nl. 
 v. Jlubbunl, G A. R. 540, p. 35. 
 
 Apjjcal fr(mi order of county judge setting 
 aside tiat and writ of summons in the nature of a 
 (juo warranto. See Jieijiua e.c nl. Grant v. Calc- 
 nidii, 7 A. H. 019 
 
 See ]\laliiju ct al. v. NkhuUs, 31 C. P. 22, 
 p. 170. 
 
 2. Reference hack tu a.ises.i Dnmagra. 
 
 The Court of Appeal directed a verdict to be 
 entered for the plaintifl' against a tavern keeper 
 for selling licpior to her husband after l)eing lor- 
 biddin by the plaintifl', his wife, to do so, but 
 referred it back to the County Court judge to 
 assess the damagc^s, declining to follow the course 
 adopted in Denny v. The Montreal Telegraph 
 Co., 3 A. R. 028. Austin v. DarU, 7 A. R. 478. 
 
 3. CoM.<. 
 
 As the judgment was varied on a matter of 
 discretion, no costs of appeal were given. Camp- 
 bell V. Prince, 5 A. R. 330. 
 
 Security for costs under joint stock companies 
 winding up Act (41 Vict. c. 5) Ont. See Rf 
 Union Fire Ins. Co.. 7 A. R. 783, p. 175. 
 
 See Rets v. McKeoivn, 7 A. R. 521, p. 171. 
 
 COURT OF APPEAL. 
 I. Appeal from Superior Court.s. 
 
 1. When Appeal lies, 173. 
 
 2. Time for Appealing and Notice, 173. 
 
 3. Stayinij Proceedings, 174. 
 
 4. Enforcing Judgment, 174. 
 
 5. Bond and Allowance, 175. 
 
 6. Right to take grounds of appeal not 
 
 taken below, 170. 
 
 7. Cost.% 177. 
 
 8. Other Cases, 177. 
 
 II. Appeal from Count\ Courts. — See 
 County Courts. 
 
 Error — See Criminal Law. 
 
 Ill 
 IV, 
 
 Miscellaneous Cases Relating to Ap- 
 peal. — See Appeal. 
 
173 
 
 COURT OF APPEAL. 
 
 174 
 
 I. ApPKAL FROJl SUPF.KIOK COURTS. 
 
 1. When Appeal lien. 
 
 Rules 274 anil 317, 0. J. Act. restrict the 
 jurisdiction of the Divisional Court after judj;- 
 iiient to cises in which . ->. I'indings of fact have 
 b'jeu undisputed, and in wliich it is only souylit 
 t;i modify or set aside the co-iclusion drawn l)y 
 the Judges tiierefroni ; hut if the npijeal is on 
 the whole case, as to both facts and law, it nnist 
 he to the Court of Ajujeal. Trwlc v. Phiuij: 
 fiiaumiirt' Company, 2!) Chy. 'i'lti. 
 
 What is jroper coni[)ensation to he allowed to 
 a trustee 'or his management of a trust estate is 
 a matter of oijiuion, and even if, in granting the 
 allowance, the Court below may have erred on 
 the side of lil)erality, th;it alone is not sulli'.ient 
 ground for reversing the judi'inent. Where the 
 master had allowed §125, which the court, on 
 appeal, increased to .^250, this court refused to 
 interfere. McDonald v. DaridfOii , H A. 11. 'MO. 
 
 Where the question involved alFected matters 
 arising in the exercise of statutory powers, and 
 was of general interest, le:>ve >vas given to apjical 
 although a sum less than §200 was at stake. 
 O'Doiiohocv. Whittii, 2 0. R.. Cliy. D 424. See 
 also.S". C. 9 P. K. 3(51, p. 174. 
 
 The plaintiff being in possession of land as 
 tenant of H., was evicted by the defendant, who 
 L-lainu'd under an overdue inortgige. A n iisiiit 
 was entered .at the trial, on the ground that the 
 defendant was at Law entitled to possession, evi- 
 dence of equital)le right to possession in the plain- 
 tilF having lieen refused. The Court of Queen's 
 IJench in its discretion granted a new trial. On 
 appeal to the Court of Appeal ; — iIehl, that the 
 cmirt could not interfere. Robimon v. Hall, (i 
 A. U. 534. 
 
 As to interfering with discretion of judge o" 
 an application for an interlocutory injunction. 
 See Hathnwity v. Dviij, G A. R. 204. 
 
 The rule generally followed by the court is 
 not to review the lin<ling of the judge of first 
 instance, where his <lecisiou depends upon a bal- 
 imce of testimony ; still, if the court in banc 
 upon an application to it has reversed that lind- 
 iug, this court must be satistied u))on appeal, 
 that the court in banc was wrong f etore it will 
 interfere with that judgment. Itak v. Kcniwdii, 
 8 A. R. l.')7. 
 
 appeal within a year from the making of the 
 decree, which had bee)i pronounced on the 2nd 
 April, 1881, before the first mentioned Act came 
 into force. Workman v. Robh, 9 P. R. 169. — 
 Dalton, Q. C. 
 
 By the decree in question "Further Direc- 
 tions" were reserved, and it also appeared that 
 the defendant resided in England, but it was not 
 sliewn that any attempt had been m.ade to eom- 
 niunicate with her, nor that if there hail it W(mld 
 have ))een of any use, nor tliat the defendant had 
 bc'-'U prejudiced by it ; — Held, not sullicient 
 special circumstances to entitle the defendant to 
 obt lin leave to .ippeal after the lapse of the month 
 within which notice of appeal is to be given. 
 Mdli-i- V. Brown, ,;t a I., 9 P. R. r)42.— I'roud- 
 foot. 
 
 3. Slai/in;/ I'roa'cdiiiij'i. 
 
 A stay of proceedings will not be granted 
 pending an ap]ieal unless security is given lor the 
 costs of appeal as well .as those in tiic court bo- 
 low. Applications for a stay should not be made 
 ex j)ai'te. (/rand Trunk lii/. Co. v. Ontario and 
 Quehcc liij. Co., 1) P. 1!. 420.— I'roudfoot. 
 
 Bills of costs amounting to .?2.")0.10 were on a 
 ta.\ation reduced to .^'187. 10. The plaintiff con- 
 tended th.it he was not lial)lc to pay as nnicli as 
 •^187.10, if any sum, and apiiliid to the master 
 ! in ( 'hanibers for an order to stay an execution for 
 .§187. 10 pending an a])peal to the Court of Aiipeal, 
 i under sec. 33 O. .1. Act. This order was rei used, 
 I and on appeal lloyd, C., held that wliat wis " ia 
 1 controversy on tlie appeal," was a sum less thau 
 ' .$-'00, and therefore tliat the order of the mister 
 ' was right. ()' Donoliot' v. W/iilty, 9 P. R. 361. 
 
 The jiLiintiff was permitted to proceed wil;h a 
 new trial pending an appeal, where he shewed 
 ' he had already been inconvenienceil by de- 
 lay, that further del.ay would pn^judice him 
 linancially, and that by it he might lose import- 
 ant oral evidence. McDonald v. Murray, et at, 
 9 P. R. 404.— Winchester, Ji,ijix/rar q. ^li. D.— 
 Hagarty. 
 
 The 27th section of the Court of Apjieal Act, 
 R. S. 0., c. 38, does not apply to proceedings by 
 injunction, whether the writ has been issuetl be- 
 fore or after decree in the cause. McLaren v. 
 Cildwelf, 29 Chy. 438. 
 
 See Powell v. Peck, 8 P. R. 85, p. 175. 
 
 2. Time/or Appealing and Notice. 
 
 Where a decree was made at the hearing ';f a 
 case, but certain questions were reserved for fur- 
 ther directions ; — Held, that the ye.ar within 
 which an appeal could be brougiit ran from the 
 uiakii'i; of the decree on further directions, and 
 not from that on the hearing. Freed v. Orr et al., 
 
 C A. R. fino. 
 
 By the oversight of a clerk of the appellant's 
 solicitor, the notice of appeal required by It. S. O. 
 c. .38, (s. 38 O. J. A. 1881), was not given to the 
 Registrar of the court appealed from, but it was 
 duly served on the responileiit, who had not been 
 prejudiced. Boyd, C, allowed the noti'c to be 
 tiled within four days, upon jiayment of costs. 
 Re Lawx.—Lnw8 v. Laivs, 9 P. R. 72. 
 
 Held, that s. 38, 0. J. Act did not affect the 
 plaintiffs' right under R, S. 0. c. 38, s. 46, to 
 
 4. Enforcbm Jiidijment. 
 
 Held, that a certificate of the Convt of Ajipeal 
 may be acted on in the court below, without 
 issuing a rule upon such certificate. Mr A rthur 
 V. The Corporation of' the Toirn.ihip ol' Southwold, 
 8 P. R. 27.— Jackson, Mn.-tter. 
 
 An ex parte motion to make the ccrtiric.ate of 
 judgment of the Court of Ajipeal an order of the 
 High Court of .luatico was refused, the master 
 in Chambers being of opinion such a course was 
 unnecessary. Freed v. Orr, 9 P. R. 181 — Dalton, 
 Q. C. 
 
 Remarks as to the practice of making a certifi- 
 cate of the judgment of the Court of Appeal an 
 order of the Court of Chancery, which has been 
 the uniform practice of that court and is not in- 
 
 
 
 r 
 
176 
 
 COURT OF APPEAL 
 
 17G 
 
 cnnsistont with R. S. 0. c. 38, s. 44. Xormll v. 
 'J'hi' C'liiiiiilit Smilhcrn /{i/. Cn. ; Ciiitiiiii'ihant v. 
 The Cui'kI'i Siiiill„;;i %. Co., 9 P. R. 3;».— 
 I'rou'lfdot. — Tiiu full Court. 
 
 The proper way of enforcini,'!i judgment of the 
 Court of .Xppiial is, to liave the juilgnient of the 
 Court liuliiw aiiK;iiih'(l, if necessary, according to 
 the ju<lgriicnt in appeal ; and when amended to 
 ihsue i)rocess thereon. Sec. 44 of the Ai)peal 
 Act, H. S. (). 0. .SH, is not supi;rseded liy s. 14 of 
 the O. .1. Act. Liiiraon, <>! <il. v. 'J'/n' CiDinila 
 Fariiicrx' Mutual /ii-i. Co., 8 A. K. G1.3. See S. 
 v., 9 r. 1!. 185. 
 
 .5. Bmnl and Alhwnncc. 
 
 The bond for.'*400 given, under tlie provisions 
 of R. S. n. , c. 38 s. ■_'!). is a security lor the costs 
 of appeal oidy : in order to stay execution for the 
 costs ot the Court below, further securitv must 
 he given. /'oir.llv.i'erL;SV. R. 85.— Steph- 
 ens, Rffrri'C. 
 
 All ordei' allowing $400 to be paid into Court 
 Ijy the appellant in lieu of a bond will be granted 
 €x parte. <\,iiiti/lli/ V. O'HeiUij, 8 P. R. 159. — 
 Stephens, Itijvrec. 
 
 Where on a motion in Chambers to disallow a 
 l)ond given on an appeal, it ajipeared from the 
 examination of one of the bondsmen that he had 
 lands of suttieient value, but that the ccmveyances 
 to him were unregistered, it was directed that 
 the conveyances should be registered. Ai(ainson 
 V. Addiiimii, 9 P. R. 9(i. — Stephens, lieferee. 
 
 On appeal to the Court of Appeal from 'the 
 judgment of the Court of Queen's Bench in 
 •favour (jf (Jiie P. against the Citizens' Insurance 
 Comi)any, the comiiany paid into Court a sum 
 of money as security for the amount of the judg- 
 ment, as well as f<ir interest and costs, and also 
 forthecost>s of tlio appeal. The appeal was dis- 
 missed witli costs, and the company then ap- 
 pealed to the Sui)reine Cimrt and jiaid a fur- i 
 ther sum into Court as security for the costs of 
 such appeal. The Supreme Court dismissed the 
 appeal witli costs. A judge's order was then ob- 
 tained, under which the moneys were paid out of 
 court to (}. and M., to whom P. had assigned 
 them. The company afterwards appealed to the 
 Privy Council, when the appeal was allowed 
 and the judgment of the Supreme Court re- 
 versed On an action brought therefor : — Held, 
 by Hiigarty, C. J., that the company were en- 
 titled to recover back the moneys so pai<l out of 
 Court on the judge's order for principal and 
 interest, with interest thereon from that pay- 
 ment at six jier cent. ; and also all sums paid for 
 costs, but without interest. The Cifizeim Ins. 
 Co. V. ramms et ai, 32 C. P. 492. 
 
 An appeal under the Act respecting the wind- 
 ing up of joint stock companies, 41 \ ict. c. 5 s. 
 27 Out., cannot be entertainetl when security 
 has not been given within eight days from the 
 rendering of the final order or judgment appealed 
 from. He Union Fire /««. Co., 7 A. R. 783. 
 
 Where a bond good in form with proper sure- 
 ties was filed with the clerk of the County 
 Court on the last of the eight daj's, though 
 not allowed by the judge ■.—Held to be within 
 the words "given security before a judge," and 
 
 a sufticient compliance with the Act, though a 
 person thus tiling a bond without allowance, risks 
 being deprived of his right of appeal in the event 
 of the bond proving defective, lb. 
 
 0. Ri'jht to tnkr (jroundn of Aiipealnot Taken 
 below. 
 
 The appeal being allowed in this case on a 
 ground not taken in the Court below or assigned 
 as a reason of appeal, the Court refused the ap- 
 pellant his costs injapiieal. Paije et al. v. A uxlin, 
 7 A. R. 1. 
 
 ^Vhen an appeal was allowed on a ground 
 raised for the first time on the argument no costs 
 were given. EUi* v. The Midland R. W. Co., 
 7 A. R. 4G4. 
 
 On the appeal the defendants urged amongst 
 other grcmiids, one not taken in the rule nisi or 
 raised by the pleadings, namely, that the evi- 
 dence disclosed good cause for dismissal. When 
 offered the opportunity at the trial to amend and 
 raise such defence, counsel for the defendants 
 dechned to do so : — Held, that the defence could 
 not be raised on appeal. Lank v. The Meriden 
 Britannia Co., 8 A. R. 680. 
 
 The petitioner was not allowed to urge before 
 the Court of Appeal a charge of corrupt practices 
 against the respondent personally, which had not 
 ])een specified in the particulars, or adjudicated 
 I upon at the trial of the petition. South Onlanj 
 Ekrtion—Fnrwell v. Brown, 1 H. E. 0. 420; 
 Siih noni. Farcu'dl v. Brown, 12 L. J., N. S. 216. 
 
 L. was expelled from membership in Ti' U. St. 
 J., an incorporated benefit society, for l)eing in 
 default to pay six months' contributions. Art. 
 20 (if the society's by-laws, sec. 5, provides that 
 " Wlien a member shall have neglected during 
 six months to pay his contributions, or the en- 
 tire amount of his entrance fee, the society may 
 erase his name from the list of members, and|he 
 shall then no longer form part of the society ; 
 for that purpose, at every gener.d and regular 
 meeting, it is the duty of the Collector-Treasu- 
 rers to make known the names of those who are 
 indelited in six months' contributions, or inj a 
 balance of their entrance fee, and then any one 
 may move that such members be struck offfr.im 
 the list of members of the society." L. therefore 
 brought suit under the shape of a petition, praying 
 that a writ of mandamus shouhl issue, enjoining 
 the company to reinstate him in his rights and 
 privileges as a member of the society. 1. On the 
 ground that he had not been put en dcineure in 
 any way ; and that no statement or notice had 
 been given him of the amount of his indebted- 
 ness. 2. On the ground that many other mem- 
 hers of the society were in arrear for similar pe- 
 riods, and that it was not competent for the so- 
 ciety to make any distinction amongst those in 
 arrears. 3. On tiie ground that no motion was 
 made at any regular meeting. The Court of 
 Queen's Bench for L. C. (appeal side) held that L. 
 should have had "prior notice" of the proceedings 
 to be taken with the viewto his expulsion: —Held, 
 on appeal, that as L. did not raise by his pleadings 
 the want of ' ' prior notice, " or make it a part of 
 his case in the court below, he could not do so in 
 appeal. Per Taschereau and Gwynne, J J. :— A 
 member of that society who admits that he is in 
 
17G 
 
 177 
 
 COURT OF APPE.\.L. 
 
 178 
 
 though a 
 nice, risks 
 the event 
 
 arrears of six months' contrii)utions, is not enti- 1 of Aijpeal Act, R. S. 0. c. 38, to direct this 
 tied to " prior notice " befors ho can be expelled j court to reopen the rule or reconsider the ques- 
 fornon-paynient of dues. L' Union tit. Joxvphde tion whethar, in their discretion, a new trial 
 
 Montreal v. Lapierre, 4 S. C R. 1G4. 
 
 7. Costs. 
 
 The appeal in this case was allowed without 
 costs as the bill hail been tiled on the authority 
 of Boale v. Dickson, 13 C. P. 337, which was 
 properly followed by the court below but was 
 overruled by this Court. McLaren v. Caldwell, 
 el al., « A. li. 456. 
 
 On ai)peal to the Court of Appeal the judg- 
 ments of tlie Court of Chancery in favour of the 
 plaintiffs ri-spectively, were affirmed with costs 
 of appeal ; and the defendants appealeil to the 
 Supremo Court. In the first ca.se that court 
 gave leave to tlie defendants (ap])ellants) to am- 
 end their answer, saying nothing as to costs, and 
 upon such amendment being made, dcrlarcd that 
 the award upon which the bill had been filed 
 should bo null and void, but said nothing about 
 costs. Ill the second case the Supreme Court 
 ordered a new trial to be had between the parties, 
 without costs to either party. The plaintififs 
 having obfc.uned orders of the Court of Chancery 
 making the certificates of the Court of Appeal of 
 the judgments in appeal orders of the Court of 
 Chancery, issued executions thereon for the costs 
 awarded in ai)))eal : — Held, that the plaintiffs 
 were not entitled to the costs of the appeal t« 
 the Court of Appeal, and the executions were set 
 aside. Normdl v. Canada Southern R. W. Co. ; 
 Cunninri/iam v. Canada Southern R. W. Co., 9 
 P. R. 339.— Proudfoot and the Full Court. 
 
 An appeal from the Court of Common Pleas 
 which ordered a nonsuit after verdict for the 
 plaintiff (31 C. P. 394) the court being equally 
 divided was ilismissed witli costs. Nedl v. The 
 Trav(Utr.s ln.i. Co., 7 A. R. 570. 
 
 Where the judgment was varied on a matter 
 of discretion no costs of appeal were given. 
 Campbell v. Prince. 5 A. R. 330. 
 
 See Paije et al. v. A ustin, 7 A. R. 1, p. 176 ; Ellis 
 v. The MidUnid R. W. Co., 7 A. R. 464, p. 176. 
 
 8. Other Cases. 
 
 As the court oelow had pronounced no opinion 
 as to whether there should be a new trial or not, 
 the appeal was simply allowed, setting aside the 
 nonsuit but leaving the question of new trial 
 untouched. Walton et al. v. Corporation of the 
 County of York, 6 A. R. 181. I 
 
 In an action for negligence in not keeping a 
 county road in repair, the jury found for the | 
 plaiiitiff. A rule nisi having been subse(]uently | 
 obtained to enter a nonsuit, or for a new trial, j 
 this court made it alisolute to enter a nonsuit. ! 
 On appeal the court allowed the appeal, but I 
 made no onler as to that portion of the rule nisi ' 
 in which a new trial was asked, leaving it to be 
 disposed of by this court : —Held, that the rule 
 nisi was completely and finally disposed of, so 
 far as this court was concerneil, by tiie rule to 
 • .or a nonsuit, which the defendants, by taking 
 it without asking for any reservation so far as 
 regarded the new trial, aad acquiesced in:— Held, 
 also, Wilson, C. J., dissenting, that the Court of 
 Appeal have no power, under sec. 23 of the Court 
 12 
 
 should l)e granted. Walton v. The Corporation 
 of the County if York, 32 C. P. 35. 
 
 Two only of several defendants appealed. The 
 respondent by her reasons against the appeal 
 claimed relief over against two of tlie other de- 
 fendants to the suit, and served them with the rea- 
 sons against appeal, and subsequently with the 
 printed appeal book, and with notice of setting 
 down the appeal for argument. These defendants 
 had never been served with the.statutory month's 
 notice of appeal, nor furnished with security 
 for the costs of appeal, nor afforded an oppor- 
 tunity ot taking part in the settlement of the 
 appeal book :— Held, that they were properly 
 before the Court. Freed v. Orr et al, 6 A. R. 
 690. 
 
 A cause had been carried down to trial in 1879, 
 when it was postponed at the instance of defen- 
 ilants, and a trial took place in 1880, when a ver- 
 dict was rendered in favour of the plaintiffs, 
 which the Court of Queen's Bench refused to set 
 aside. 'I'he defendants, thereupon appealed to 
 this court, and when the appeal came on to be 
 heard (in 1882) an application was made by the 
 defendants to be allowed to adduce evidence al- 
 leged to have been recently discovered, tending 
 to relieve the defendants from liability, which 
 evidence it appeared, consisted mainly of entries 
 in the books of the defendants. The court being 
 of opinion that proper diligence had not been 
 used by the defendants, as in such case they 
 must have discovered the evidence at a much 
 earlier date, refused the application with costs. 
 Murray et al. v. 77t« Canada Central Railway 
 Co., 7 A. R.G46. 
 
 The prisoner was remanded for extradition by 
 the ('hancery Division of tlie High Court of Jus- 
 tice, which on appeal to this Court was affirmed, 
 the court being equally divided, (8 A. U. 31.) A 
 second writ of habeas corpus was thereupon ob- 
 tained, and the prisoner brought before the Com- 
 mon Pleas Division, when he was again remanded, 
 whereupon he again appealed to this court, which 
 appeal was dismissed with costs, as under such 
 circumstances a second appeal could not be enter- 
 tained. Per Hagarty, C. J., (Spragge, C. J. O. 
 concurring) . The prisoner having already appeal- 
 ed to this court from the judgment of the Chan- 
 cery Division, he must abide iiy the legal result 
 of such appeal, viz. , the dismissal of it and con- 
 sequent atiirmance of the decision appealed from, 
 and he could not again ask the interference of 
 this court on the same state of facts. In Re 
 Hall, 8 A. R. 135, see ,S'. C. 32 C. P. 498. 
 
 Per Burton and Patterson, JJ. A. The grounds 
 for the technical rule of practice of tiie House 
 of Lords on an eijual division have no existence 
 in other appellate tribunals, although in the par- 
 ticular case, the appellate court is tho court of 
 last resort. Ih. 
 
 The effect of an equal division in this court, as 
 in a court of first instance, is simply that the rule 
 or niotion drojis or the appeal is dismissed, and 
 the judgment below remains undisturbed, but is 
 not considered as a binding authority. lb. 
 
 The Act 29 30 Vic. c. 45, apparently substi- 
 tuted the right of appeal in habeas corpus cases 
 for successive applications from court to court. lb. 
 
 I 
 
17a 
 
 COURTS. 
 
 180 
 
 Per Patterson, J. A. Hy the t-ffect of the Judi- 
 caturo Act, a docisiou of any one division is a 
 decision of the High Court, this matter had there- 
 fore been already dispuaed of on the former ap- 
 peal, lb. 
 
 Section 43 of the Court of Appeal Act, which 
 providea "when on an appeal a;,'ain3t a judgment 
 in any action peraonal, tlie Court of Appeal gives 
 judgment for the respondent, interest ahall be 
 allowed l)y the court for such time as execution 
 baa been <lelayed by the appeal," does not apply 
 to a case where the judgment of the court below 
 ia in favour of tlie tlefrndant, and is reversed on 
 app(^al. In suoli case the court on reversing the 
 judgment, gave lil)erty to the appellant, tlie plain- 
 titJ' in the court below, to n.ove to be at liberty 
 to enter judgment as directed l)y this court, nunc 
 pro tunc, wliereliy lie would be eiial)led to recov- 
 er interest on the amount of the verdict rendered 
 in liis favour. Qidnhin v. The Union Fire Ins. 
 Co., 8 A. R. 376. (See 47 Vict. e. 10 a. 4.) 
 
 When upon the argument of an appeal, the 
 respondent omitted to point out in what respect 
 the replications of the ]jlaiiitifr were demurrable, 
 the court refused to wade through the mass of 
 pleading wliich had been filed in the court be- 
 low, to find it out for themselves ; and being 
 of opinion, in the absence of argument, that 
 the pleading was good, affirmed the judgment of 
 the court below upon such pleadings. lb. 
 
 The unnecessary and improper length of plead- 
 ings remarked upon, lb 
 
 When the judgment iu fhe court below over- 
 ruled a demurrer on the assumption that a plea 
 had been amended according to leave given, but 
 the appeal book did not sliew the amcndnient 
 to have been made, and the defence as set out in 
 the printed case was held bad on demurrer, the 
 appeal liy the plainiilf was allowed with costs. 
 (Cameron, J., dissenting, who thought that under 
 the circumstances the plea shouhl be treated as 
 amended pursuant to tiie leave granted by the 
 court below, and that tlie judgment of the court 
 below which was in the opinion of this court 
 right as it Wcas given, should not be reversed.) 
 Boswellv. Sitlhi-rlanil, 8 A. R. 233 ; 32 C. P. 131. 
 
 Plaintiffs, who resided in England, obtained a 
 verdict for the price of goods in defendants pos- 
 session. The defendants appealed to the Court 
 of Appeal. Plaintiffs applied for payment out of 
 <^00 paid in by them as security for costs on 
 commencing the action: — Held, that as the plain- 
 tills were shewn to have goods in the country, 
 and iu the deieudanta possession, the §300 should 
 be paiil out. But for thia the phiintiflfa would 
 not have lieen entitled to the money, the appeal 
 being a step in the original cause, not a new 
 action. Xti/jier et al v. Hughes et al, 9 P. R. 
 104. — Wilson. 
 
 It ajipeared that the Despatch Company, de- 
 fendants herein ha<l given notice of appeal to the 
 Court of Appeal from the decision of Osier, J., be- 
 fore the other defendants appealed to this court. 
 Per Armour, J. Where there is a general judg- 
 ment against several defendants, Rule 510 does 
 not permit them to sever and appeal to diflferent 
 courts, but they were all bound to appeal to the 
 tribunal to which the defendant taking the first 
 step had appealed, and on thia ground, the ap- 
 peal should be dismissed. Hately et al v. Mer- 
 chatUa Despatch Co., 4 0. R., Q. B. D. 723. 
 
 See Austin v. Davis, 7 A. R. 47S, p. 17-. 
 
 COURT OF CHANCERY. 
 
 I. JUHLSDICTION, 180. 
 
 II. Appe.\l From— .S'fc Couut of Aite.^l, 
 III. Practice in— .SV Practice. 
 
 I. Jurisdiction. 
 
 The Court of Chancery has jurisdiction in cases 
 of escheat, and held th.at it was proper for the 
 Attorney (leneral to lile a bill in tliiit court to 
 enforce an escheat. Attorney Geufrnl of Ontario 
 V. O'lMlly, () A. R. 57(>. 
 
 The Court of Chancery has no jurisdiction to 
 restrain proceedin^rs on an order granted by a 
 County Court judge to garnish moneys payable 
 by the county to the plaintiff as Clerk oi' tlu; Peace 
 and County Crown Attorney. The ap[ilicati(in 
 should be to the Court of Appeal. Van Xorman 
 V. Grant, 27 Chy. 498. 
 
 Where a member of a college council com- 
 plains that he has been impro])erly expelled from 
 the council, the Court of Chancery iiinler the 
 A. J. Act, has jurisdiction in a pro))er case to 
 decree relief ; that Act giving juri.sdirtion to the 
 Courtof Chancery "inall matterswhich would lie 
 cognizable in a court of law," althoiii;ii the rem- 
 edy in such a case in a court of law would be 
 sought by man<lamus. ^far.•!h v. Huron Collei/c, 
 27 Chy. (503. 
 
 As to power of the Court of Chaui'cr" to make 
 an assessment on policy holders in tlie sidvent 
 branches of a Mutual Insurance Cnnipany for 
 the purpose of paying off the liability hie to the 
 guarantee stockhohlers. Hee IJujI' v. Canadian 
 MutuaUns. Co., (i A. K. '2.18. 
 
 Where an agreement for a submission contain- 
 ed a clause that it should be made a rule of the 
 Court of Queen's Bench, in England, and all 
 proceedings thereunder should be governed, as in 
 (Jreat Britain, by the provisions of the lilnglish 
 C. L. P. Act; — Hehl, that this formed no objec- 
 tion to the jurisdiction of the Court of (.!hancery 
 in this province. The Direct Unitid >itntes Cahle 
 Co. (Limited) v. The Dominion Teleiirnph Co. 
 of Canada, 8 A. R. 416. 
 
 See also The Attorney General of (\nnda, ex rel. 
 Barrett v. The International Bridge Ciinipamj, 28 
 Chy. 65. 
 
 COURT OF IMPEACHMENT. 
 
 Impeachment of County Court Judge. See lie 
 Squier, 46 Q. B. 474, p. 167. 
 
 COURT OF REVISION. 
 See Assessment and Taxes. 
 
 COURTS. 
 I. Rules of— See Rules of Court. 
 II. Appeal from —See Appeal. 
 
n 
 
 181 
 
 COVENANTS FOR TITLE. 
 
 182 
 
 III. Prohibition— -See Prohibition. 
 
 IV. County Judges Criminal Court— ^ee 
 
 Criminal Law. 
 
 V. Judge in Chambers— <Sfe Practice. 
 
 VI. Nisi Fmvs—See Trial. 
 
 VII. Court of Revision — See Assessment 
 AND Taxes. 
 
 VIII. Sessions— (See Justices of the Peace — 
 
 Sessions. 
 
 IX. Other Courts — See Their Several 
 Titles. 
 
 Remarks as to what constitutes a Superior or 
 Inferior Court. See Iie<jina v. O'liourke, 32 C. 
 P. 388. 
 
 COVENANT. 
 I. Particular Covenants. 
 
 1. In Leases — See Landlord and Ten- 
 
 ant. 
 
 2. In Mortgages — See Mortgage. 
 
 3. In Policies— See Insurance. 
 
 4. For 7'i7^e-&e Covenants FOR Title. 
 
 II. Injunction Against Breaches of — See 
 Injunction. 
 
 A covenant to insure for the benefit of an 
 incumbrancer, operates as an equitable assign- 
 ment of the policy of insurance when eflfected. 
 Greet v. The Citizens Ins. Co., 27 Chy. 121. 
 
 E. carrying on the trade or calling of a dealer 
 in pictures and photographic business, sold out 
 such business to W., and by the agreement 
 covenanted "not to op«u or start a retail and 
 photographic businfss of a similar character" in 
 the city of Toroni j for five years. By a subse- 
 quent agreement the first was modified, so as to 
 allow E. to sell in any manner to persons resid- 
 ing out of Toronto, and to sell retail in Toronto, 
 on allowing W. a percentage on the prices realiz- 
 ed. \V. filed a bill alleging that E. had, prior 
 to such secfiud agreement, sold goods in contra- 
 vention of the first agreement, and had subse- 
 quently 8)ld to a large amount, and prayed an 
 account and payment of his percentage. The 
 court [Spragge, C] being of opinion that such 
 second agreement had been executed for a valu- 
 able consideration, granted the decree as asked, 
 and directed the account to be taken by the 
 Master, although the answer professed to state 
 the actual amount of sales, and on the motion for 
 decree had been read as evidence by the plaintiflf. 
 Williamson v. Ewing, 27 Chy. 596. 
 
 Action for purpose of enforcing covenant to 
 maintain a railway station on lands granted to a 
 railway company for the purposes of a station. 
 SeeJessup v. Grand Trunk B. W. Co., 7 A. R. 128. 
 
 In an action brought to reform a lease and 
 claiming damages for breach of a covenant : — 
 Held, that such claim for damages was not a 
 " purely money demand" under the A. J. Act, 
 R. S. 0. c. 49, 8. 4. Qowanlock v. Man», 9 P. 
 R. 270.— Dalton, Master. 
 
 See also, Qreefti et al. v. Waism, 2 0. R. 627. 
 
 COVENANTS FOR TITLE. 
 
 I. COVENANIS RUNNING WITH THE LaND, 
 182. 
 
 II. Other Covenants, 182. 
 
 I. Covenants running with the Land. 
 
 AVhere D. , the owner of certain lands on selling 
 part to B., inserted this clause in the conveyance : 
 " Bellevue Square is private property, but is al- 
 ways to remain un})uilt upon oxcept one residence 
 with the necessary outbuildings, including por- 
 ter's lodge," and the purchaser on his part, cove- 
 nanted not to allow any business of a certain kind 
 to be carried on on the part conveyed : — Held, 
 that the benefit of the restriction passed to the 
 assignee of the purchaser, as one of the advan- 
 tages and privileges appurtenant to the land, 
 though the word " assigns " was not there, and 
 tho""'' the benefit of it was not formally trans- 
 ferred to him, VanKouijhntt v. Denison, 1 O.^It., 
 Chy. D. 349. 
 
 Where it is clearly intended to give some tan- 
 gible benefit to a grantee by such a covenant in 
 the conveyance to him, and it formed a part of 
 the consideration which inducetl his purchase, 
 the court will go far to give effect to the language, 
 whatever hardship may be occasioned to the par- 
 ty who has entered into the engagement. lb. 
 
 Where the person who was building the house 
 objected to, held under an agreement for a lease, 
 but had made no outlay on the property till after 
 notice was served on lier, nor paid auj' rent : — 
 Held, that she was not in the same jiosition as .in 
 innocent person holding for value under a com- 
 pleted instrument, and the erection of the house 
 must be stopped. lb. 
 
 Where the square had been built upon for 
 years without objection by purchaser or his ven- 
 dee, the i)laintiff ; but the building had been done 
 by vurchasers under a mortgage executed b^' D. 
 befoie he conveyed to B. : — Held, no proof of 
 ac()uiescence, as they could not have objected 
 with effect. Ih. 
 
 See also Clark v. Bojart, 27 Chy. 450. 
 
 II. Other Covenants. 
 
 Action by the plaintiff against defendant as 
 administratrix of one J. McK. for breach of cove- 
 nant for title contained in a deed made by him 
 to his son, the plaintiff. The deed purported to 
 be under the Short Forms Act, and the covenant 
 was that the grantor had the right to convey, 
 omitting the words " notwithstanding any act of 
 the said covenantor : — Held, following Brown 
 11. O'Dwyer, 35 Q. B. 354, that although not 
 in accordance with the statute, it bound the 
 covenantor as an absolute covenant that ho was 
 seized and had a right to convey in fee simple. 
 McKay v. McKay, 31 C. P. 1. 
 
 The deed contained two several parcels of land, 
 and the plaintiff was evicted from one, but was 
 still owner of the most valuable parcel : — Held, 
 that the measure of damages was not the whole 
 purchase money, but only the pr')portionate value 
 of that part to which the title faded. lb. 
 
 r- 
 
 
183 
 
 CRIMINAL LAW. 
 
 184 
 
 It apponrcd tliat, at the time of the transaction 
 in question, the father was some seventy years 
 old, an<l re])osed {.Teat confidence in liis son, the 
 plaintifl', and was in the habit of relying upon his 
 advice. Without any apparent reason for parting 
 with the land, <m whicli he lived, and wiiich was 
 ■worth St), 000, he was induced by the jilaintiffto 
 sell it to hini for 33,000, 81,000 of which con- 
 sisted of allegeil stale demands liy the son against 
 the father, liarrid liy the Statute of Limitations, 
 and the balance of S'J.OOO was secured by a mort- 
 gage, with interest at six percent., neither prin- 
 cipal or interest being payable for ten years, the 
 father being permitted to remain on the land 
 during his life. The juortgage was produced, 
 with the registrar's certificate of discharge en- 
 dorsed thereon, but there was no evidence as to 
 the execution of the discharge, or as to how the 
 mortgage came into the pliiiiitiff's possession. 
 There was no corroboration of the iihiintiff's 
 statement of the existence of the debt of .Sl.OOO. 
 except a receipt of .S15, which the court refused 
 to accept as genuine, while in corroboration of 
 his assertion of the payment of the mortgage, 
 some four receipts were put in by the plaintifif, 
 which, though purporting to have been given at 
 diirerent intervals and dilferent places, within 
 four years from the execution of the mortgage, 
 all appeared by the water mark to have been 
 written on and torn from the same sheet of paper; 
 and being of a very suspicious character, the 
 oourt also refused to accept them as genuine : — 
 Held, that the evidence having failed to prove 
 that the mortgage had been paid off, and it being 
 therefor outstanding, no action could be brought 
 on the covenant in the deed. Ih. 
 
 On a sale of "timber limits" held under licenses 
 in pursuance of the Con. Stat. Canada, e. 23, a 
 clause of simple warranty (garantie de tons trou- 
 bles generalement cpielconques) does not operate 
 to protect the purchaser against eviction by a per- 
 son claiming to be entitled under a prior license 
 to a portion of the limits sold. Ducondu v. Dupuy, 
 9 App. Cas. 150; reversing judgment of Supreme 
 Court, 6 S. C. R. 425. 
 
 See also Thu Real Estute Investment Co. v. The 
 Metropolitan Building Society, 3 O. R. 476. 
 
 F •: 
 
 Jj •■• 
 
 I ftu-,/ 
 
 CREDITORS SUIT. 
 
 • O-r'vie, 27 Chy. 456 ; Le 
 ■"((^ Co., 29 Chy. 480. 
 
 V. 
 
 ■. ..VALLAW. 
 I. Assault. 
 
 1. Evidence, 184. 
 II. Bribery, 184. 
 
 III. Embezzlement, 184. 
 
 IV. Forgery, 184. 
 
 V. Malicious Injury to Property, 186. 
 
 VI. Maliciously Wounding, 186. 
 
 VII. Murder and Manslaughter, 187. 
 
 VIII. Obtaining Money under False Pre- 
 tences, 187. 
 
 IX. Receiving Stolen Goods, 187. 
 
 X. Trespass to L\nd. — See Justice.s of 
 the P?:ace. 
 
 XI. Procedure. 
 
 1. Indictment, 187. 
 
 2. Cane Reserved, 188. 
 
 XII. County Judges Criminal Court, 188. 
 
 XIII. Jury, 189. 
 
 XIV. Evidence, 190. 
 
 XV. Error, 191. 
 
 XVI. Apprehension and Arrest of Offen- 
 ders, 191. 
 
 XVII. Costs and Expenses of Criminal Jus- 
 
 tice, 191. 
 
 XVIII. Compounding Prosecutions— -Ses Com- 
 
 promising. 
 
 XIX. Extradition of Criminals— .?«« Ex- 
 tradition. 
 
 XX. Habeas Corpus— .S^ee Habeas Corpus. 
 
 XXI. Summary Convictions— .S'«e Justices 
 CF the Pe.ue. 
 
 XXII, Other Offences. 
 
 1. Ej-tortiun—See Extortion. 
 
 2. Gaminij — .SVe Gaming. 
 
 3. Sunday— See Sunday. 
 
 I. Assault. 
 
 I. Evidence. 
 
 On an indictment for assault and battery, oc- 
 casioning actu.al bodily harm : — Held, that the 
 defendant is not a competent witness on his own 
 behalf under 43 Vict. c. 37, U. Reijina v. Rich- 
 ard-^on, 46 Q. B. 375. 
 
 Upon the trial of the prisoner, a school teacher, 
 for an indecent assault upon one of his scholars, 
 it appeared that he forbade the prosecutrix tell- 
 ing her parents what had happened, and they did 
 not hear of it for two months. After the prose- 
 cutrix had given evidence of the assault, evidence 
 was tendered of the conduct of the prisoner to- 
 wards her subsucjuent to the assault : — Hold, that 
 the evidence was admissible as tending to shew 
 the indecent (juality of the assault, and as being 
 in effect a part or continuation of the same trans- 
 action as that with which the prisoner was 
 charged. Per llag.irty, C. J., and Armour, J. 
 Tiie evidence was properly admissible as evidence 
 in chief. Reijina v. Chute, 46 Q. B. 555. 
 
 II. Bribery. 
 
 The giver of a bribe as well as the receiver 
 may be indicted for bril)ery. North Victoria 
 Election — Cameron v. ^faclennan, I H. E. C. 
 584. 
 
 III. Embezzlement. 
 See In re Hall, 8 A. R. 31, p. 185. 
 
 IV. Forgery. 
 
 The prisoner was a clerk in the office of the 
 comptroller of the city of Newark, New Jersey, 
 
185 
 
 CRIMINAL LAW. 
 
 186 
 
 U. S. A., his duty being to make proper entries \ false entries therein of moneys received and ji dd 
 of moneys received for taxes in the ollieial luioks j out, and changing the additions to ooneapond. 
 of the comptroller provided for that purpose. Some of tliese entries were by the jirisoiier liiiii- 
 Having received a sum of money for taxes, he self, and others by Ills clerk under his direction, 
 entered the correct amount at first, and then ; but the clerk on finding that such entries were 
 
 erasing the true figures he inserted a less sum, 
 with intent to benefit himself by the abstraction 
 of the ditl'ercnce between the two, and to deceive 
 the comptroller and the municipality :— Held, 
 that the otFenee was forgery, and tliat the pri- 
 soner had been properly committed for extradi- 
 tion. Ill re Hall, 3 (). It., C^hy. O. 331 ; 9 P. K. 
 373. See next case, 
 
 false changed them back: — Held, that tids con- 
 stituted forgery at common law, as well as un<ler 
 our statute 32-33 Vict. e. 19, i). :— Held, aUo, 
 that under the Extradition Act of 1877, 40 \ict. 
 c. 'Ji", D., it is essential that tiie otfencc ciiarged 
 should be such as if coinmitted here would be 
 an offence against the laws of this country, 'flie 
 I offence, however, was also proved to In t'orL'ery 
 ,., . ^, . , ! by the liiws of New Jersey. In re Jarraril, 4 
 
 It IS not necessary to constitute the crn>ie of | ,/ j^ ^ ^,_ ^ ^^.^ Affirmed, see 120 C. L. J . 1 45. 
 forgery that another s right shall liave lieen actu- j 
 
 ally prejudiced, the possilnlity of prejudice to P. was the superintendent of the Hlocksley 
 another is sufficient; and if publication be neces- | Almshouse, situated in and supported by the city 
 sary, the books in question being of a public cha- i of Philadelphia, LT. S. P.nrties supplying provi- 
 raetcr, the forged entry in them must lie regarded j sioiis, &c., for the use of tiie charity were paid 
 as having been published as soon as made. Ih. | by warrants duly prepared and signed by the [iro- 
 
 per officers thereof. Three sucli warrants for 
 
 The prisoner was a clerk in the employ of the i,^^ j.^yinent of certain persons or firms were in 
 mayor and common council of the city of ^ew- ^,^^. }^J^,^^ ^f ^y ^j^^ secretary of the almsiiouse, 
 ark, (m the State of .New Jersey, U. S. A.), aL^ ,^^ delivered to them on tlieir respectively 
 
 5!5()'2.3- was composed of three items : costs >fl. 
 70, interest lJ7-'.08, and taxes .'5482. ,')4 -each of 
 which re(]uired to bo entered in;i separate cobimii 
 of the cash-book belonging to the office of the 
 comptroller. The gross sum, (.'i'od'i. ."?'-'), had ap- 
 parently been entered first in the coluiiiii hea<led 
 "Totals," and subseiiuently in making the sep- 
 arate entries the sum of .'$4S2.r)4 was entered as 
 ."^282. .")4, and the figure " 3 " in the total column 
 substituted ; the difference (.S200), lieing ab- 
 stracted l)y the prisoner from moneys paid to him 
 (PerSi)ragge"(.'. J. O., and 
 
 subsc(jueiitly cashed at the office of tlie city 
 treasurer. P. having fled to this Province, an 
 ap|ilication was made for his e.Ntr.idition before 
 tlie judge of the County Court of Wentwortli, 
 when expert evidence was adduced pi-oving that 
 according to the Statute Law of Pennsylvania, 
 as ;dso at Common Law as there iiitir[ircted, 
 these facts constituted the crime of fnrgeiy : — 
 Held, on appeal, \icx Spragge, C. J. ()., nnd 
 Patterson, J. A. [affirming the judgment of tlie 
 Queen's I tench Hiv. 1 O.'i!. oSii], tliat the acts 
 
 on that day :-Hel'l- W - -l";'«p;. -• •'■ -•> -■- ^ amounted to the crime of forgery, and so rend .red 
 f;alt, J.), that this act amounted to the en ne of ^ jj^^,^,^ ^,, ,,^ extradited. Per Burton, .LA., 
 
 ind I'erguson, J., tliat in the absence of any 
 
 forgery, and, as such, rendered the prisoner liable 
 to extradition. Per Burton and Patterson, J.T. 
 .v., that such alteration was not forgery, though 
 the act amounted to one of embezzlement, and 
 therefore that the prisoner was entitled to be 
 discharged, embezzlement not being one of the ' 
 offences for which a party was at the time liable ' 
 to be extradited under the Ashburton Treaty. ' 
 In re Hall, 8 A. 11. 31. I 
 
 The ])risoner, who was collector of the County 
 of Middlesex, in the State of New Jersey, kept 
 a book in which to enter the payment and re- 
 ceipts of all moneys received by him as such 
 collector, and which was the principal book of 
 account kept by him. The book was jiurchased 
 with the money of the county, and was kept in 
 the collector's office, aii<l was left by him at the 
 close of his term of office ; it was by statute open 
 to the inspection of those interested in it, and 
 contained the certificate of the county auditors 
 as to the correctness of the matters therein con- 
 tained : — Held, that the book was the public 
 property of the county, and not the private pro- 
 perty of the prisoner. After the book had been 
 examined by the proper auditors as to the 
 amounts received and paid out by and through 
 the prisoner as such collector, and a certificate 
 of the same made by them, the prisoner, who 
 was a defaulter, with intent to cover up his de- 
 falcation, altered the book by making certain 
 
 suspicion of any complicity of W. in tiie friud, 
 tiic facts would not have made out tin; crime of 
 forgery ; but as the evidence afforded ground to 
 infer that \V. and P. were in collusion, and had 
 combined together for the purpose of committing 
 the fraud by means of the false documents, and 
 was therefore sufficient to warrant the committal 
 of P. for the eriiue of forgery at common law, the 
 order for his committal for extradition should 
 be affirmed. In Re Phipps, 8 A. R. 77. 
 
 See also lieijiiia v. Ilove.ij, 8 P. R. 345. 
 
 V. Malicious Injury to PRorERTV. 
 See n('(jbm v. Goutjh, 3 0. R., 402, p. 187. 
 
 VI. Maliciouslv Woundino. 
 
 On motion to discharge prisoner on habeas 
 corpus on conviction before a Police M.agistrate, 
 the conviction charged that the jirisoner did 
 " unlawfully and maliciously cut and wouml one 
 Mary Kelly, with intent then and there to do 
 her grievous bodily harm :"— Held, that, the ad- 
 dition of the words, "with intent to do grievous 
 bodily harm," did not vitiate the conviction, and 
 
 
187 
 
 CRIMINAL LAW. 
 
 188 
 
 tli.'it th(! iii'isonor ini^'lit bo lav.-fnlly ooiivictod of 
 tlif Btntiitdry iiiisilc-iiicaiKiur of iniilicidus wound- 
 ing' : HcM, Jilso that inijirisoniiicnt at hard 
 l^'ixiur fornyo.'vr was iirrumvlv awarded under 38 
 Vict. c. 47- /(""'/i/ifi V. lioueher, 8 P. U. 20.— 
 JIagarty. Aflinned, 4 A. U. 191. 
 
 VII. Minnr.R and Manhi.acohter. 
 
 An indictment contained two counts, one 
 cliarpng tlie )irisoner with murdering M. .1. T. 
 on tlio lOth Noveniher, 1881 ; the other with 
 inanHlau(,'liter of the said M. J. T. on the same 
 (lay. Tlie grand jury found " a true hill." A 
 motion to iiuash the indictment for misjoinder 
 was refused, tlie counsel for the prosecution 
 electing to i)roceod on the tirst count oidy: — 
 Held,— Alfirmiiig the judgment of the court a 
 (luo, that tlie indictment was aufhcient. Theal 
 V. The Qiieru, 7 S. C. R. 397. 
 
 The prisoner was convicted of m.anslaughter 
 in killini,' liia wife, who died on the lOthNovem- 
 lici-, 18H1. The immediate cause of her death 
 was acute inflammation of the liver, which the 
 medical testimony proved might be occasioned 
 by a lihiw or a fall against a hard Buhstanje. 
 Altout three weeks before her'leath, {17th Octo- 
 ber [ireceding) the prisoner had knocked his wife 
 down with a bottle : b.he fell against a door, and 
 remained on the floor insensible for some time ; 
 she was e(mfined to her bed soon afterwards and 
 never recovered. Evidence was given of fi'e(|uent 
 acts of violence committed by the pri.ioner upon 
 his wife within a year of her death, liy knocking 
 her down and kicking her in the side. On the 
 reserved questions, viz., whether the evidence of 
 assaults and violence committed bj' the prisoner 
 upon the deceased, prior to the 10th November 
 or the 17th October, 1881, was properly received, 
 and whether there was any evidence to leave to 
 the jury to sustain the charge in the first count 
 of the indictment : — Held, affirming the judg- 
 ment of the Supreme Court of \ew Brunswick, 
 tV...i, I'ne evidence was properly received, and 
 that there was evidence to submit to the jury 
 that the disease, which caused her death, was 
 produced by the injuries inflicted by the pri- 
 soner. 76. 
 
 See Begina v. O'Hourke, 32 C. P. 388, pp. 18C, 
 190. 
 
 On an indictment, containing four counts for 
 obtaining money by false pretences, was en- 
 <lorsed : "I direct that this indictment belaid 
 before the grand jury. Montreal, (»tii October, 
 1880 :— By J. A. Mousseau, Q. C; U. P. Uavid- 
 son.Q. C. ; L. O. Lorauger, Attornoy-(Teneral. 
 Messrs. Mousse.iu and Davidson were the two 
 counsel authorized to represent the crown in all 
 the criminal proceedings during the ter.n. A 
 motion supported )>y allidavit was made to quash 
 the indictment on the ground, inter alia, that 
 the ))reliniia,iry formalities re(iuircd by s. 28 ot 
 32-.'t3 Vict. c. 29 hud not been observed. The 
 chief justice allowed the case to proceed, in- 
 timating that he wouhl reserve the point raised, 
 should tile defendant bo found guilty. The de- 
 fendant was convicted, .and it was hold, on ap- 
 jieal, reversing the judgment of the Court of 
 (Jueon's Bench, that under 32 and 33 Vict. o. 28, 
 s, 28, the attorney-general could not delegate to 
 the judgment .and discretion of another the power 
 which the legislature had authorized him person- 
 ally to exercise to direct that a bill of indict- 
 ment for obtaining money by false pretences be 
 laid before the grand jury ; and it being admit- 
 ted that the attorney general gave no directions 
 with reference to this indictment, the motion to 
 quash should have been granted, and the verdict 
 ought to be set aside. Alr-'ahama v. The Queen, 
 C, S. C. II. 10. 
 
 See lipij'ma v. St. Deim, 8 P. R. 10, infra: 
 Theal V. The Queen, 7 S. (J. R. 397, p. 187. 
 
 VIII. Obtaining Money ijndek False 
 Pretences. 
 
 .See Ahrnha7nv. The Queen, 6 S. C. R. 10, p. 
 188 ; Jieijina v. Ooodman et al, 2 O. R. 468, p. 
 189; Goodman etal. v. liegina, 3 0. R. 18, p. 189. 
 
 IX. Receiving Stolen Goods. 
 See Begina v. St. Denis, 8 P. R, 16, p. 188. 
 
 XI. Procedure. 
 
 1. Indictment. 
 
 In an indictment purporting to be under 32 & 
 33 Vict. c. 22, s. 45, D., for malicious injury to 
 property, the word "feloniously" was omitted: 
 — Held, bad, and ordered to be quashed. Begina 
 V. Oough, 3 O. R., C. P. D. 402. 
 
 2. Case Beaerved. 
 
 Under C. S. U. C. c. 112, any question of 
 law which may have arisen on the criminal trial, 
 maybe reserved for the consideration of the Jus- 
 tices of eitiier of Her Majesty's Superior Courts 
 of common law. Quaere, per Armour, J. , having 
 regard to the provisions, of the Judicature Act, 
 whether a reservation to the Justices of the 
 Queen's Bench Division of the High Court of Jus- 
 tice was authorized. Begina v. liinsell, 1 0. R., 
 Q. B. D. 514. 
 
 See Beiiina v. O'Bourke, 32 C. P. 388 ; 1 O. R. 
 464, pp. 189, 190. 
 
 XII. County Judges Criminal Court. 
 
 The prisoner was convicted before a County 
 Judge's Criminal Court on a charge of receiving 
 stolen goods, knowing them to have beeu felon- 
 iously stolen, and was sentenced to imprison- 
 ment. On an application for a habeas corpus — 
 Held, that the court was a Court of Recorcf, and 
 that under R. S. O. c. 70 s. 1, there was there- 
 fore no right to the writ. Begina v, St. Deni», 
 8 P. R. 16.— Cameron. 
 
 Held, also, that the judge had power to im- 
 prison. Ih. 
 
 Held, also, that if an indictment for stealing 
 certain articles, be sustainable as to some of the 
 articles stolen, the conviction is good, although 
 the indictment may contain any number of 
 articles as to which an indictment could not be 
 sustained. lb. 
 
 The prisoners were committed for trial on a 
 charge of gambling in a railway train. On the 
 case coming before the county judge for trial, 
 an indictment was preferred, under 42 Vict. c. 44, 
 
189 
 
 CRIMINAL LAW. 
 
 190 
 
 8. 3, r)., for obtaining money by false pretences, to ;iuy iimvision in any Ai^t of the Parliament of 
 Tlie iiri^Diifrs' couiiHi.'l objecteil to tliu piisoners C.iniula, ami in so far as snch laws arc not incon- 
 licing trioil on a (lilFerent charg.; from that on sistunt vvitli any Hnoii Act. By the I'rovineial 
 wiiiuh thuy liad been coniniitted. Tiio objec- ' Auts 4'2 Vict. c. 14, and 44 Vict. c. 0, the mode 
 tion wa" overrnled, and tlie charge road over to of selection of jiiror.s in criminal cases, as ])rovid- 
 the ]iri.-i(ini!rs, and, on its being ex|il.iined that t ed by C. .S. U. C. e. 31, as amended by 26 Viot. 
 they could l)o tried forthwith orremainincnstody ! c. 44, was changed by excluding the clerk of the 
 until tlie nrxt sittings of Oyer and Terminer, ' peace as one of tlie selectors, and recpiiring the 
 etc , tli.iy (ileailed not guilty, and said they were selection to be made only from those (|U;dilied to 
 ready for Drial. The case then proceeded, and serve as jurors whose surnames began with cer- 
 the prisocitu's were convicted ; no (piestion lieing ' tain alphabetic d letters, insteail of from the whole 
 raised as t.> tlieir having been tried witliont their body of thosa competent to serve as [ireviou-ily re- 
 
 ([uired. The jury in (iuc.ition were selected un- 
 lier these Provincial Acts. Semble, that the '52 
 and ;{It Vict. o. '10, I)., was not nltra vires of the 
 Dominion Parliament as being a ilelegitioii of 
 their powers, and that the selection mule in ac- 
 cordance with the Provincial Acts, was valid. Ih. 
 
 consent, .dtliough their counsel took other objec- 
 tions to the [iroccedings. A writ of habeas cor- 
 pus h ivnig i)een issued, and the jirisoners' dis- 
 charge moved for, on the ground of the absence 
 of such constait : -Held, tliat the motion must 
 burefiiSLi!. Per Wilson, C. J. it was unneces- 
 sary to decide wliether the prisoners' remedy 
 was l>y halieis corpus or writ of irror, because, 
 on the facts, they were not entitled to either 
 renieily. Per Osier, J. The prisoners having 
 been imprisoned under the conviction of a court 
 of record, an objection of error in a proceeding 
 must 1)0 by writ of error : the writ of habeas 
 coriiMs was therefore imprrividcntlj' issued, and 
 should be (plashed. liei/iiin v. diiO'linitn dml 
 WiLiim, 2 O. II., O. P. D'. 4()S. 8oe next case. 
 
 The plaintiflfs in error were charged with hav- 
 ing defrauded one 0. by a game c died throe card 
 nionte. They consented to be summarily tried. 
 
 Qusere, whether the selection and summoning 
 of jurors is a maiter of procedure, or relates to 
 the constitution and organization of criminal 
 courts. //). See next case. 
 
 By 32 anil ,33 Vict. c. 2!), sec. 44, 1)., every per- 
 son ipialiiicd and summoned to serve as a juror in 
 criminal cases accm-ding to the law in any pro- 
 vince, is declanid to l)e (ju diliid to serve in sucli 
 province, whetliir such laws were passed before 
 the B. X. A. Act or after it subject to, and in 
 so far as such laws are not inconsistent with any 
 Act of tlie Parliament of Canada. By 42 Vict. 
 
 14, (O.) and 44 Vict. c. ti (().), the mode of se- 
 
 When brought up for trial the crown .\ttorney | I'ee'tb.g ju'ro.^s in all cases, formerly regulated by 
 asked for and obtained leave to substitute »!•)(; ViJt;„ - ■ ° - "^ 
 
 charge of combining to obtiin money by false 
 pretences, the prisoners objecting. The trial 
 proceedeil without the consent of the prisoners 
 ol)taiiied to bo tried summarily for this offence, 
 They were convicted and sentenced to one year's 
 iinprisoninent ; — Held, on error, that their con- 
 sent to be summarily tried on the substituted 
 charge shmild apj)ear, ami that in its absence the 
 conviction was bad : — Held, also that it was bad 
 in adjudging the sentence of one year, the Act, 
 40 Viet. c. 32 D., only authorizing a sentence for 
 any term less than a year. Ooudinaii et al v. 
 Rtgiita, 3 O. U., Q. B. D. 18. 
 
 XIII. Jury. 
 
 To an indictment for murder the prisoner 
 pleaded, (;tiallenging tlie array of the jnry panel, 
 which plea was demurrred to and judgment given 
 in favour of the crown by the learned judge, hold- 
 ing the Court of Oyer and Terminer, who, at the 
 request of the prisoner, reserved a case for the 
 consideration of the Common Pleas Division : — 
 Held, not a matter which could ))e reserved under 
 G. S. U. C. c. 112, and the case was therefore 
 directed to be quashed. Jiegina v. O'Jiourke, 32 
 C. P. 388. 
 
 Semble, per Wilson, C. J., that a writ of error 
 was the proper remedy, ami that, notwithstand- 
 ing the Judicature Act, it would lie in the first 
 instance to either the Queen's Bench or Common 
 Pleas Division, and not to the Court of Appeal. 
 Remarks as to what constitutes a Superior or 
 Inferior Court. lb. 
 
 By the Dominion Act 32 and 33 Vict. c. 29. s. 
 44, the selection of jurors in criminal cases is au- 
 thorized to be in accordance with the provincial 
 laws, whether passed before or after the coming 
 into force of the B. N. A. Act, subject, however, 
 
 44, waschmged. The jury was selec- 
 ted according to the Ontario Statutes, and the 
 prisoner challenged the array, to which the crown 
 demurred, and judgment was given for the crown. 
 The prisoner was found guilty .ind sentenced, and 
 he then bronglit error : — Held, per Hagarty, C. 
 J., that the Dominion Statute was not ultra vires 
 by reason of its adojiting and applying the laws 
 of Ontario as to jurors to criminal procedure. 
 lieijimi V. O'Rourke, 1 O. 11., Q. B. D. 464. 
 
 Semble, that under a. 139, Con. Stat. U. C- 
 c. 31, where no unindifference or fraudulent deal- 
 ing of the sherill' is shewn, any irregularities are 
 not assignable for error. Ih. 
 
 Per Armour and Cameron, JJ. The objection 
 raised by the prisoner was not a good ground of 
 challenge to the array. lb. 
 
 Qnuere, whether, when such a question has 
 been reserved by a judge at the trial, it can after- 
 wards be made the subject of a writ of error. Ih. 
 
 XIV. Evidence. 
 
 Held, that a magistrate cannot take judicial 
 notice of Orders in Council, or their publication, 
 without proof thereof by production of the offi- 
 cial Gazette, and therefore that a conviction was 
 bad which was made without such evidence, that 
 the Canada Temperance Act of 1878 was in force 
 in the county pursuant to the terms of s. 96 there- 
 of. Regina v. Bennett, 1 O. R., Q. B. D. 445. 
 
 Held, Armour, J., diss., that the evidence of 
 a wife is inadmissible, on the prosecution of her 
 husband for refusal to support her, under 32-33 
 Vict. c. 20, 8. 25. Regina v. Bissell, 1 0. R., Q. 
 B. D. 514. 
 
 Upon a prosecution for uttering forged notes, 
 the deposition of one S. taken before the police 
 
 
 1 
 
 tl 
 
191 
 
 CUOSS lULL. 
 
 102 
 
 ( • 
 I 
 
 I. 
 
 ft 
 
 iiiaj^istr.ni nil the iiicliiiiiiiiiiy iiivc.stij.';iti(ili v.'ih 
 rcud, iiiioii till: tolliiwiii),' |iniiil tluit S. was aliHtnt 
 fldlii ( 'aii.ulii ;- It. wwoit; tliat S. liiiil a few 
 moiitliM lichirc left liis, (II.'m) Iihiimc wlioro ulic 
 {H.) liail till' a tiliiu loil^i'il, tliat .-lu: liail xiiKi' 
 twice liLiiiil Irniii lici in tint l'. S. A., Iml iml mr 
 HJx iiioiitliM. 'I'liu ciiiuf iiiiixtaiili; nl Ihiiiiiltoii, 
 wlitii' tile jiilKdiK T wan tricil, ]i|iim(1 im llVcliial 
 attt')ii|>tH to liiiil S. Iiy iiieaiiN nl |ii'i'Kiiiial L'ii({iiirirH 
 ill smut' |i!,'ir('M, ami r(inTS|i('iiilt lue witii the 
 jHilifc (il iitlicr citit'H. S. Iiad tnr miliii! time; 
 iivt'il with till' |irihiiiii'i' iiH liis >( iff : - lltlii, ii|m>ii 
 :i cane n si'i veil, Caiiit'i'iPii, .1., ilisH., tliat the ad- 
 iiiisBiliility nt tlu' di insitioii wan in tlii' iliHcictidii 
 of tlie •hid^i' at till trial, and that it t'liuld nut 
 be Haiti that lie had \vi(p|ij.'ly adndttcd it. Jifi/iim 
 V. Achdii, 1 (>. i;., (i. 1!. I). TiOO. 
 
 I'd- I'atti iM.li, .1. A. ItdiiaikH llpnii the ^'(li- 
 eral iij.'hl ni a ikisch char;.'! d liclnica iiiafiistiate 
 with an indie lahlu (iHciicc to call v itni'SKu.s fur 
 bis (Icli iKi', and oi ujilimhi wliosc cxtiadilinii is 
 (Icniaiidtd t(i sli( u liy cvidincr that what lie i.s 
 charged with in not an extraditiun ciinip : — Scni- 
 l)lo, that the evidence h' re oHered, ax stated in 
 tbe rejioit cif the ease, was imt iiiniroiierly re- 
 jected, /ii rr /'hi/ijix, 8 A. I!. 77. 
 
 Refusal (if witness to answer on the ground 
 that he may eriniin.ite hini.seh',- Higlitto rei|uiie i 
 oath of w itiicss : set' I'atiu r \, A//m, (i S. (!. Jl. 1. | 
 
 See ThnI v. Th< Quku, 7 S. ( '. 1{. :i!»7, \k 187. 
 
 XV. EuiiOR. 
 
 •See ItiifiKit V. (i'<)(/(l]iiiiii (I (iL, 2 (t. I;. 4()8, |i. 
 18!); (iuvthnini il III. v. l,'iiiiiiii, ',U). It. 18, ji. 181); 
 
 /{njiiiii V. o7,'„»j'/,'r. ;vj (''. I'. :ihs, 1). is'j; s. a. 
 I (>. K. 4(;i, [,. I'M). 
 
 XVI. -Ari'HKiiiiN.sniN ami Akukst of 
 0|''I''1';M)I:i:s. 
 
 The ]irisoMer was arrested in 'I'oronto, upon in" 
 formation contained in atclegrain from iMiglaiid' 
 cli.arging liim with having committed a felony in 
 thateountiy, and stating that a warrant h.id lieeii 
 issued there for his arrest :- Held, that a ]ier.son 
 cannot, luuler the Inijierial Act (! & 7 Vict. e. 
 34, legally he arrested or detained here for an 
 oll'eiiee committed out of ( 'anada, unless upon a 
 warrant issued wheie the offence was committed, 
 and endorsed liy a judge of a Superior Court in 
 this country. Such w;irrant must dischise a fel- 
 ony according to the law of this country, and 
 Seinble, that the exiiression "felony, to wit, lar- 
 ceny," is insullicieiit. The prisoner wa.s there- 
 fore discharged. lieijiiia v. Mclhilme, 8 P. 1{. 
 452. — Canioron. 
 
 XVII. Costs and Expenses of Chijiinal 
 Justice. 
 
 Where an indictment for obstructing a bigli- 
 way hivd been removed by certiorari, at the in- 
 stance of the private prosecutor, into this court, 
 anil defendant had been acquitted : — Held, that 
 there was no power to impose payment of costs 
 on such prosecutor. The court, however, lias 
 power to make payment of costs a condition of 
 any indulgence granted in such a case ; such as 
 the postponement of the trial, or a new trial 
 Regina v. Hart, 45 Q. B. 1. 
 
 Held, that the liability of tiie ciowii to the 
 |iayni('iit of expenses eoiinected with the adniiiiis- 
 tration of eiiminal justice in the province out of 
 the coiisolidatt d revenue fund is lestrii t< d, under 
 li. S. ((. e. 8(1, N, I, to such expenses as are nieii- 
 tioncd in the hchedule to the Act ; and the', the 
 county, under I!. .S. <), e. 8;"), iH ie(|uirid .o pay 
 all other proper expenses coiineited ihen w itli : 
 IliM, alMi, that the county attorney of \drk. 
 tliipiigh iii'it I'll ik of the ]uaee, is an ollieer com 
 iiig within the said c. 80, whose ex]iense8 form 
 part ol the expenses of the administration of erini 
 iiial ju-tic'e. W here, therefore, the .1 count of 
 the county attormy of Wnk, for the i)ii,'irter end- 
 ing .'t 1st I'eeeli.ljtr, I87il, for ex|ieiises I'onnected 
 w itii the adniiuistratioii of criminal jiisti<!e, was 
 aiiditid by the county liiiard of audit and paid, 
 but certain of the items were disall .w id by the 
 provincial treasurer as not pay.-iblc by the crown 
 out of the consolid.'ited rmeiiiie fund, not being 
 eontaiiii il in the schedule, and the board of audit, 
 thciefore, ill auditing the comity attorney's ai- 
 count for a siibsciinent i|Uarter, dedueled there 
 from the amouiil of said disallowed iti ms a man- 
 daniiiN was granted to the board to rescind their 
 order for siu h dediietioii. lif Inttuii, Cunutji 
 Cruii'ii Allviii 1/ I'ortlir Ciiitntijof Yiuk.iinil lioaril 
 tif Aidlit 11/ //((■ CiiHHln of Yuih, ;U ('. I'. .SI. 
 
 See /)( ■;•(• S/i'ii/oii (iiiil f/ic /iiJin-il III' .\ Ill/it fhr 
 f/ii'. Cimiilii 0/ h'/ijiit, :i O. it. 8(), p. Kit;. 
 
 cnoi's. 
 
 KlIillTS (IV 'I'lNANTS .SVe 
 
 Tkna-nt. 
 
 Lam)I,(ihi) ani> 
 
 liight of married woman to crops on l.iiid owned 
 by her ;ind o('cu|iicd by lur and her husband. See 
 luiji-Hiii V. Tiii/liir, 4() (,». 15. r>-2; 7 A. !{. 2l(). 
 
 Wliere crops produced from the land after the 
 1st November, I87'.>, were distrained, .-ind the 
 lilaintiffs claimed then under acliattel mortgage, 
 given on .'{1st May. Ih8(», of such crops which 
 had then been just sown : — Held, that the grow- 
 ing crops passeil by the chattel mortgage to the 
 plaintifis, who were entitled to recover for thciii 
 as against the defendants. Liihi;/ el nl v. Ontario 
 Loan ami iSiiminjs Co., 4(5 Q. H. 114. 
 
 Crops to be .sown upon certain land may be 
 the subject of sale as any otlier after .-leipiired 
 property, and the property in them will pass, 
 when sown, if they are so described as to be 
 ca|>ablei)f being identified when acquired. Grass 
 1 1 ul V. Au.itin, 7 A. K. 511. 
 
 Right to crops of purchaser of land in mort- 
 gage suit. See MclJowall v. P/iipjrn, 1 O. R. 
 
 i4;-t. 
 
 As to growing crops comprised in Chattel 
 Mortgages. See llanitltun v. IliirrUon, 4t) Q. B. 
 127, p. 8G; VrHss el al v. Amtin, 7 A. 11. 511, 
 p. 89. 
 
 See also Cleaver v. The North of Scotland Cana- 
 dian Mortgage Co., 27 Cliy. 508. 
 
 CROSS BILL. 
 See Pleading. 
 
li)» 
 
 CI50WN LANDS. 
 
 194 
 
 CllOVVN. 
 
 I. Khciikat— .Vw Ehciikat. 
 
 II. I'lvnrioN OK nniiiT — .SVr rirnTioN hk 
 ItKinr. 
 
 III. CiiowN Lands— .SVc CuowN Lanhs. 
 
 IV. CuowN TiMiii'.H— *'pC'iu)\vn Lands. 
 
 I'l-ocoudiiigH Ity iittiicliinuiit ii^'iiinst ali8Ciiii(liiig 
 (lolitor for iliitit <luo to the crown. Sue lioijiiia v. 
 .S7, M),.r/, S 1'. li. '297, 1». U. 
 
 Kiglit of (Town to iileiul prixcriiition. Sue 
 Vhvvvkr V. Th,- Qmrn, 4 S. ('. |{. 1. 
 
 Thu iimxim that the crown can do no wrong 
 uiiiilit'H to alleged tortious nets of tlio olTu'crs of 
 II nuhhc dipuitnicnt of Ontario. Sec Tlic Mkk- 
 Ma Mill (■„. V. Tliv Qiitrii, iIS Chy. 5(J3. 
 
 The Statute of I, imitations was held not to he 
 a har to an action, thongh hronght liy tlu' cjown 
 in its cajiacity as truHtee of the land in (|iustion 
 in thu suit. AlUini<ii-(li iivml \. MitlUiiid 11. \V. 
 To., 30. I!., (Jhy. 1>. 511. 
 
 Per Hitchie, VJ. That neither the engineer 
 nor thu clerk of thu worliH, nor any Huhordinate 
 ollicurin eh.uguof any of the woi'ks of the Dondn- 
 ion of t'anada, have; any jiower or antliority, ex- 
 press or iiujiiied uu<ler thu law, to hind the cidw n 
 to any contract or expenditure not Hpeeially Jiu- 
 tliori/.ed liy thu express terms of contract duly 
 onturud into hetweun the crown and thu eontr.-ic- 
 tor according to law, and then oidy in the specilic 
 manner provided fi'i- l)y the exjiress terms of the 
 contract. (/Jtrii'ii v. f/if Qmni, 4 S. (.'. I{. r>'JO. 
 
 As to liahility of the crown for the negligenc(! 
 of its servants. See llcijimi v. Mcl'drliiin', 7 S. 
 C. U. 21(). 
 
 CROWN LANDS. 
 I. llidins l?KFoitK Isst K OF Tatknt, 103. 
 
 II. ItlOllTS OK (lUANTKKS, l!)."}. 
 
 in. Grown Timiikr. 
 
 I. liiijhtsof lAcvuHcx'H, 195. 
 
 IV, PossKssioN of — See Li.mitatio.n of Ac- 
 thins AND Suits. 
 
 L RioiiTs Bevoue Issuk of Patknt. 
 
 A by-law passed hy a municipal corporation 
 cannot have the effect of taknig any lauds of the 
 crown in addition to those appropriated by the 
 crown for the purpose of highways in order to 
 the opening up of the country. Neither can par- 
 ties in possession of crown lands l)efore patent 
 issued dedicate any portion of the same : parties 
 so in possession, however, may so far bind them- 
 selves by tlicir acts as that when a patent shall 
 issue to them the lands granted would be bound 
 by any right or casement to which their sanc- 
 tion has been obtained. line v. Trim, 27 Chy. 374. 
 
 See also Wutmn v. Lindsay et al, 27 Chy. 253 ; 
 (> A. U. 609. 
 
 IL Rights of Grantees. 
 
 In a patent from the crown, of lots IG and 17, 
 in the Uth coucessiou of Snowdon, the patentee 
 
 13 
 
 was'ih Hciil" d ;iH " a free grant .-( lili r " ; l.nl the 
 patent on its l.iee piu poi ti d togi iiil llii' I ui<l mIi- 
 solutely and uneoiiditionally, and did nut emit \\\\ 
 tlu' stateliie;.t.i i'e(|uiicd liy sec. I(i i>t the I'roe 
 (irant and llonieslisidH Act, I!. S. ( ». c. '1\ \ and 
 there was no evidence! that tlie patcntei' ever v, as 
 n loeatet! of the laml undi'r Haid Act, or that the 
 crown intcmled i.sNuing the |iatent thereunder : — 
 Held, that the land uiiist lie ilei nicd to \\..\i.: been 
 graiiteil ahsdlutely and unconditionally. SiHidile, 
 that the patent might have iNsutd noilcr hc{.'. 12 
 (if the Public Lands Act, K. S. O. e. -^3 faii.'i/a 
 J'criiiniK'iil Liiiiii mill Siir'iii'iK Co, v. Tniilur, .'II 
 0. P. 41. 
 
 Thu Ontario, Simeoi!, and Huron Itailwiy t'l m- 
 pany, (afterwards eliaugi d to "The Nortiiern 
 hailway ol C.'anaila,") in the eour.'e nf Lhtt enn- 
 struction of their roadway, aciiiig in a.^^sunicd and 
 alleged pursUiince uf the poui is ceuiltircd o;i liiu 
 coni]iany by its eiiarler, entered upnii ami tuok 
 possession of cuitain government lands held hy 
 the iirinei))al otlieers of Her Majesty s Ordli.inee 
 for ordnance purposes, and proceeded to ci/U- 
 strm;t their road thereon. Aiterwanls negotia- 
 tions were opened hetw ecu the eom|jany . and the 
 ]U'ineip;d otlieers for aecpiiring sncli right, of w y, 
 in the course of which nnnii rous letters [lased 
 betw(!en the pai'ties and heLWeeii the several de- 
 partments connected with the Oidnance depart- 
 ment, from which it appeared that the parties 
 concerned had arriveil at the coneliislcin that the 
 comiiany were acting within their st itutory p'lW- 
 ers, and that all the department conld reijidrc 
 was, compensation for the land taken, Sulise- 
 (jeently all these lands were, hy the Impciial 
 (iovernment, ceded to the (iovernment ol Can- 
 ada, and in the year 1875 it was ascci taiucd that 
 the sum for which tin; government In Id a lien u|> 
 on the road anmnnteci to i;tlOO,(l()U ; ami by an 
 Act of the Legislature of that year that claim v.as 
 compromised l>y the government lor 'J1()(».()00 
 sterling, which was paul. In tlu^ year I.S.'")(i or 
 1S.">7, this eomiiany agreed with tlu; ( Jrand Tiimk 
 liailway Company for the nsu of a porticpu of this 
 land for the purjioses of thu line of the latter com- 
 pany, who, it was shewn, had entered upon and 
 continued in the use of this land until IST'.t, when 
 the Credit \alley liailway Company, with a view 
 of obtii,. :'.!'.; an entrance into the ( 'ity of Toronto, 
 enteriil upon this tract of land, and were pid- 
 ceeding to construct their line of road theivon. 
 Upon a bill liled by the (ii-and Trunk liailway 
 Comiiany an interloeutoi'y injunction was granted 
 to restrain the further construction of the Credit 
 Valley Kadway, until the hearii.g, when the in- 
 junction «.is made perpetual, thu court being 
 of opinion l;hat the Northern Railway Company, 
 under their dealings with the Board of Ordnance, 
 and under the various statutory enactments ap- 
 pearing in the case, had acepiired an absolute title 
 to the land in (question, free from any lien in 
 respect thereof. The Grand Trunk li. \V . Co. o/' 
 Canada v. The Credit ValU'i) li. W. Cu. of' (.'an- 
 ada el al., 27 Chy. 232. 
 
 Where the crown lands commissioner had er- 
 roneously returned certain lands to the muineipal 
 oHicers as patented, whereas, although a ]iat(!nt 
 had been prepared, it had never been intemled 
 to be operative, nor been delivered to the grantee, 
 B., ■who had paid oiily a part of the purchase 
 montjy, and thu laiuls were afterwards sold for 
 taxes*: — Held, per Ferguson, J., B. having as- 
 signed his interest, and the assignee having sur- 
 
 
 
 "r.l- 
 
 
lori 
 
 DAMACJKS. 
 
 i&(; 
 
 I 
 
 roiiili If 1 111 i iiiti rest til till' ci'iiwii, liil'urc llu' is 
 Hiic cif till' |i iti'iit til M., it ciiiilil nut III' Kiiiil tii.'it 
 at till' tiiiii' iif till' instil' of till' [liiti'iit 111 M., tlicif 
 w;i« liny " iiiImi'si' I'l.iiin " tn tin- l.iiiiU in i|iii'stiiin 
 witliin •_'.'{ V'irt. r. '_', h, '.'■_', nu ,'ih tu il li.ir till' nun- 
 ini-siunri' Irmii ciiin'rllin;' llir [i.itiiit to I!, iiniltr 
 tllilt Hi'.'ti.iu. n't.'rii'h/ \. MrC.iiDmi, '.' (I, I.'., 
 «'liy. I». 'Mi'.y. 
 
 >A\\n- l(> \'iut. 0. IS'.', H. f'd, IV tax Hall! (if niiim- 
 tt'iitcil limls I'liiivt'vs til 11 imii'liiiHi.'r oiilv bucIi 
 ri^litH in riNiicct nf tin; liiml uh I Iiu ori^'iiitil lix^utcu 
 ■ •njiiyi'il. II,. 
 
 I,., in IsT'i, .ippliiil fur h linnii'titi' nl entry for 
 lliu S. W. \ of Kci'. .'(0, tiiwnsliip (i, riiiij,'!! 4 wi'st, 
 prti I'injiti'il liy V., iinil ]i;iiil >l() fi'i; to ii (ilrrk at 
 till' ollicc, lint \\{M Miilisi':|nc'ntly inrnrincil liy tin: 
 olli('i'rs II'' (lie e'riiwn III it his ,'i|nilii';;lion conM 
 not liii ri'i'o;.'iii/,iMl, iiMil uiiH ii'fiinili'il the SlO lin 
 hail [laiil. I''. siilis('i|iicntly )i;iiil for tin,' lainl liy 
 .1 inilif iiy lioiinty wiirnuit in |iiirsnanci' of h. 'J.'t 
 of Ho \'ii't. (.'. L'S. \t. iiiitrri'il n|iiin thi.' Imil ami 
 in uk' iiMiin.vciiK'nts. in 1S7S, after the i'onlli';t- 
 JML,' elaini i of I'", .'incl L. Ii.nl been joiisiilcriil liy 
 the otlicers of the eiowii, a initriit for this laiiil 
 waH granteil liy the erowii to !<'., who liroii;,'ht an 
 iietioll of eji-etini'lit a;^ailist L. to rei'over Jiosses- 
 si HI of till' Haul I anil. I''., lit the trial, put in, as 
 proof (if his title the letters patent, ami L. was 
 alloweil, a;.''iinst the olijeetion of |'\'s eoiinsel, to 
 set np an einiit.iliie defeiiee, ami to )^o into evi- 
 ilen'je for the piii'pose of attacking the pliiiiitifl's 
 patent as Invi ^ iieeii issiieil to him in error, ami 
 iiy iin[iroviilenei' nml frauil. Tie' judge, \» ho tridl 
 the ease witiioiita jury, remlereil a venliet for the 
 ilefendaiit: -Held, on a])peal, reversiim the judg- 
 Mii'iit of till' Court of (.tiieen's r>i!neli (Manitoliii), 
 that \i. not being in possession under the Statute, 
 had no [iiili uiiuiitary title to the possi'ssion of 
 till.' land, nor any titli.' whatever that could pre- 
 vail agaiii'it the title of F. under the letters pa- 
 tent. Fur nil' r \. Liriiiij.ifnii, 5 8. (J. K. 'J21. 
 
 Aa to the right of a patentee of land on tlie bank 
 of u river where free a(;eeHs to the ]mblie is re 
 survoil. See lliiirkiu/i v. MaliivJ'ii, ilil Cliy. .'i'Jlj" 
 
 See li'iolh V. Mr/iili/ir, 31 C. P. 18;!, lii/ra. 
 
 till', and to cut the tiiiibiT within nix rod.s of 
 either side thereof, without any ristrii.'tion an to 
 obtaining the consent of the i.icntenant-dovcr 
 nor in eonncil. Ih. 
 
 Held, .'Vrinonr. •),, disseiitiiig, that the timber 
 licenses, elaimed by the jilaintill', aM licensei! of 
 the Ontario (iovernnieiit, were subject to the' 
 ii'.,'litiil the Canada ('eiitral Itailway Coiii]iaiiy, 
 ai'ipiircd liefore eonfederat loii, to eolistrilet their 
 road across the crown lands, over wllieh the 
 liceiiscH in ipiestioii extciideil ; and that the de- 
 feiiilants, assignees of the railw; conipany, were 
 llienfore not lialile in trespass for entering up- 
 on and cutting tiinlier on tin- said limits in pro 
 sc'iition of the work of building the said railway. 
 Foniii V. Mrliili/i-r ,1 til., 45 t^ it. 2!S8. 
 
 CIIOWM Tl.MliKI!. 
 
 See. CUOWN I.ANiW. 
 
 III. Cro'.vx Timher. 
 
 1. R'ojhls of L'treuneM. 
 
 The plaintifF herein a timber licensee, sold his 
 interest in the license and limits to one W., who 
 entered and cut timber, but the transfer was 
 not proved, and by the regulations of the Crown 
 LaiKis Department all transfers were to be in 
 writing and subject to their approval, and were 
 to be valid only from such approval: — Held, that 
 the legal title to the limits and timber thereon 
 was ill the plaiutilT, jvud that W.'s possession was 
 the plaintitt''a, who was entitled to maintain an 
 action for damage done to the limits. Booth v. 
 Mvliilyre at al, 31 C. P. 183. 
 
 Held, that the Canada Central Railway ac-iuir- 
 ed under their charter, granted by the Act 19 & 
 20 Viot. c. 112 and subsequent Acts relating 
 thereto passed prior to confederation, the right, 
 whioh was preserved by a. 109 of the B. N. A. 
 Act, to enter on the Crown lands in the Province 
 of Ontario on the line of the railway included in 
 a subsequent timber license granted to the plain- 
 
 CU.MMINdS I'^LANI). 
 
 See Itiijiiiii v. Till- CiirjiiiralUin of the Count;/ 
 ;fC(irll'i',i, 1 (>. i;. •277. 
 
 CUSTOM A.N I) IJSACii:. 
 
 (,Jua're, whether evidenee as to how contracts 
 for artesian wells were usually made in Marrie, 
 should have been received. The linrrii' Uuh Co. 
 V. Sullirnit, 5 A. 1!. 110. 
 
 Tlie iilaintid's alleged that it .vas the custom of 
 agents to give each other credit for premiums on 
 reassurance and to settle at the end of the mouth, 
 when the balance, if any, was h inded by one to 
 the other but no knowledge by defendants of such 
 a course of dealing, nor such a course of dealing on 
 the ])art of their agents was proved : — Held, that 
 even if such a custom had been proved to exist 
 between local agents, it would not be binding (m 
 the company, unless authorized by it. Wentern 
 Anxitruucc Co. v. Provincial I m. Co., 5 A. R. 190. 
 
 Kvidence of custom in foreign country rejected 
 where the contract was made in Ontario. See 
 U'llliamn v. Corlicy et al., 5 A. K. ()2fi. 
 
 Per fxwynne, J. The evidence in this case es- 
 tablished the existence of a usage to tow down the 
 river, as far as might be deemed necessary having 
 regard to tlie state of the wind and weather, some- 
 times beyond the traverse, but ordinarily, at the 
 date of the departure of tlie plaintiff's vessel, at 
 least as far as the traverse. The Provincial Ins. 
 Co. of Canada v. Connollij, 5 S. C. R. 258. 
 
 Custom of Paris. See Pilon v. Jirunet, 5 S. 
 C. R. 318. 
 
 See Murton v. The Kimjston and Montreal 
 Forwardin;/ Co., 32 C. P. 366, p. 83. 
 
 DAMAGES. 
 I. In At'TiON.s ON Contracts. 
 1. For Non-delivery of Goods. 
 (a) Carriage of Goods, 197. 
 
107 
 
 DEIiKNTlIllKS. 
 
 lt)« 
 
 o omtDtn lit 
 
 id Montreal 
 
 (li) Siili' 11/ t.'iiiid.^ S(i Sale hk 
 
 <ioiiliX— 'I'lMIIKII, 
 
 '.'. f.l'/iliJd/'i/ III' /'iiKil—Sii I'lAAl.TV IIY 
 I'oSIIlAl'r. 
 
 II. In Ac riiiNs IIS Cuvi'nants. 
 
 1, t'oi'i lliliils I'lif Ti/fi' -Si-r ToVKNANTS 
 
 ti>\i 'I'lii.r., 
 
 ■J. ill l.fllHIH 
 
 'ri.NANr. 
 
 l/AMiI,()llli ANI 
 
 In AiTlilNS ¥u\i rilKSUNvl. In.II'IUKS- 
 
 .V«<- NK((i,f(iKN<i;. 
 
 Ill 
 
 l\'. In AriKtNs run Injiiiv to I'lsm kutv. 
 I. lAiili'iiihjiij' Cafrh'rn — Si-<- ( iAUiUKIi.s — 
 
 KaII.WAVS ANJ» llAll.WA VtJoMI'ANIKS. 
 
 'J. /^m//'i .-(.•(- -Suo Dl.STKKSS, 
 
 ;{, l.iif'fiil iSil/i/iiii-l Scr F^ATKUAL Sl'l'- 
 l'tllll'., 
 
 •1. Aijiiiiitt Ji'iii/inii/ Ciiiii/Kiiihn — Scf 
 
 1 ! M I. WAYS A M 1 1 ; A I I.WA Y Co.Ml'AN IKS 
 
 5. Tn-t/Ki-ss-Sif 'I'liKsi'AMS. 
 
 (i. 1)1/ DrKiiiiiiji' — Sif WaTKI! AM) 
 
 W vv.n < NiuusKs. 
 \ . In AciiiiNs roll I)o\\ Kit— iSVc DowKii. 
 VI. Jn .Vcno.s.s on W'akkanty — i'«i Wak- 
 
 IfANlY. 
 
 VII. CoMI'KNSATION IN SlllS KoU Sl'KCIFlC 
 rKlM'OU.MANCM -.Sic Si'KCiriC I'KRKOII- 
 MANCK. 
 
 VIII. A«si:ssmi;nt or Damaoks. 
 
 1. Nul'iiU- uj'—Srr TlilAI,. 
 
 2. Jill Jiirii - Sii' Jruv. 
 
 I.\. I'KAriiir. IN .Ai'i'Ki.i.ATi; (.'oruTs, 108. 
 X. I'',.\ri;s.sivi: Damaohs— ,SVi' Nkw Tiuai,. 
 
 I, In Actions on Contisact. 
 
 1 Fur Xon-iMinnj nf d'uods. 
 
 (:i) ('iirriiiijc nf (i.tiiln. 
 
 Till! pliiiiitill', will) livuil at Mcafonl, solil a 
 • |iiaiitity of Karloy liy saiiiiile to oiio \), a liruwur 
 ill Toronto, ami .slii]i[K!il saiiiu hy tlio ilofumlaiit.i' 
 I'aihvay, coiisij,'iii.Ml to 1) at HtoL-k streut, signing 
 a coiiHif^niiiuiit iioti; and rcuuiviiig a shipping ro- 
 oi.'ipt from tliu comiiany, wliioli stipulated such 
 ruoeipt should not liu transfurablu, but that as 
 to grain consigned to dtjfeiidants' elevator at 
 Toronto defendants would grant a negotiable re- 
 ceipt, and was subject to cert.iin conditions, set 
 nut in the rcpo-*;. The barley w.as duly carried 
 to Toronto an.l warehoused by defendants in 
 their elevator there, under, as they contended, 
 the right conferred therefor by the conditions ; 
 and they then tendered grain of the same grade 
 as plaintiff's, which U refused to accept : — Held, 
 that the consignment note and shi^^ping receipt, 
 \yhich constituted the contract between the par- 
 ties, shewed that a distinction was made be- 
 tween grain consigned to the defendant's eleva- 
 tor and other grain ; the conditions as to ware- 
 housing, set out in the report, being only appli- 
 cable to the former, and that the plaintiff was 
 therefore entitled to recover the damages sus- 
 
 tained by the nun delivery of the Hiieeilic grain 
 Mhip|i.il. Liinhf V. T/ii'Xnr'/itfii /{. 11'. Co. et 
 III., .; w. 11., (J. !•. I). !»•_>. 
 
 IX. I'ltxcrrri; in .\i'I'i:i,i,aii; I'imki's. 
 
 Tlic Coiii't on A|i|)im1 directed a verdict to bo 
 entiled lor the plaiiitill' iis^Miiist a tiverii keeper 
 lor selJiiiL; lii|Miii' to In I- liiisliaml aftiT being lor- 
 biilileii by the plaJiitilV, his wife, to do HO, but 
 rolerreil it badv to the County Court .ludge to 
 assess the ilaiiiai^es, ileeliiiini,' to follow tlu^ course 
 adopted in Ititiny ''. The Montreal Telegraph 
 (Jo,, ;iA. It. C.L'S. Ai(.iii,i V. A/CM, 7 A. U.'47a 
 
 In ,'ui ai'tion of damages, if tliu amount award- 
 ed in tile court of liist instaiii.'i! is not such as to 
 shock the sense of JiiHticc anil to make it appar- 
 ent that there was error or p.artiality on the part 
 of tile juilgi! (the exercise of a discretion on his 
 part lieing in the iiatiiie of the ease re(|uired)an 
 appellate court will nut intei'fere with the dis- 
 cretion Hiich jiiilgt! li.'is exercised in determining 
 the amount of damages. I.ici v. llivd, G S. C. U. 
 4S'.». 
 
 I) HATH. 
 
 I. PUMSIMITUIN AS 'I'll -.Vi'l' I'lvIDKNCK. 
 II. Ol' I'AirrNK.lt -.Sir PAnr.NKHSIIIf. 
 
 I leatli of sole defendant — Aihling parties. See 
 MiCitrl/ii/ v. Arhidkli', .SI C. I'. -!«. 
 
 DKHKNTUUES. 
 
 I. MlNICIl'Al, -.S'.i; MiNICIl'AI, CilIirOKA- 
 TliiNS. 
 
 II. Railway— .S'l,' Railways and Railway 
 
 t'oMI'AMKS. 
 
 Action on a debenture, by which the defen- 
 dants agreed to pay to the bearer €200 stg. at 
 the ollice of a named bank and on a named day, 
 upon presentation and surrender there of the 
 ilcl)cn*'"re. Averment of [lerformanoo of all con- 
 ditions precedent. Uroacli, iion-p.ayment of the 
 principal sum : — Held, liy O.slcr, .!., andalBrined 
 liy the full court, (I) that the present.ition and 
 surrender of the debenture at such place and 
 date were conditions precedent, and the perfor- 
 mance of such conditions having been averred in 
 the declaration, a replication alleging presenta- 
 tion on a later day was a departure ; (2) that it 
 was no objection to a replication that it showed 
 for the lirst time that interest only was claimed, 
 for that being merely an accessory to the princi- 
 pal, need not bo claimed as dam.ages : — Held, 
 also, that a i)lea which, after traversing the pre- 
 sentation of the debenture modo et form.1, al- 
 leged it was afterwiirds paid and was then duly 
 surrendered to the defendants, was a good plea, 
 as the plaintill's, by exception to it, admitted 
 p lyincnt of the principal sum, which would in- 
 cluile the nominal damages, if any, alone re- 
 coverable for its detention, while the surrender 
 of the debenture would shew that the paymenij. 
 was in satisfaction and discharge of the debt, if 
 
 
 1 
 >< 
 
loy 
 
 DEED. 
 
 20a 
 
 not of the (livinages alsfi : that it was no answer 
 to the pluii t<i say that the hiirrender l)efore the 
 <\aiiiages were jiaiil was by mere oversight anil 
 iuadverteiiee so long as it ajipeared to l)e inten- 
 tional ; l)Ut that it would be a good answer to say 
 that sueli delivery was on the exjiress agreement 
 that the right to damages was reserved :--Held, 
 al.so, that utter t'liiiure to make a due presenta- 
 tion, there coidd lie no recovery until a denianil 
 was male lor jiaynient, which must be made on 
 the delendaiits. Osliorne c. I'restiin and Herlin 
 K. VV. Co., !) V. 1'. -241, and Fellowes /•. Ot- 
 tawa (las. Co., 1!) C. I'. 174, oommented ujion. 
 Tlu". Moiilridl (ill/ (111(1 Dialnct .'idriinj-s Hank v. 
 The L'or/iofdlioii o/' l/it- Cvkh/i/ aj I'ciili, 'VI C. I'. 
 18. 
 
 D]:ci:iT. 
 
 Ste Fraud and MisuKritK.-^ENTATiu.N. 
 
 DECLARATION. 
 In Plkadiniis — Sc(^ Pleauino. 
 
 DECLARATION OF OFFICE. 
 See MrNicii'AL Coki'oeation.s. 
 
 DECLARATION OF EIGHT. 
 
 To exclusive use of terry. See Jvlhtt v. 
 Amlcisdu el aL, 7 A. J\. .S4I. Reversed in 
 Supreme Court .'Jrd May, ISS.S. 
 
 DECUEE. 
 
 I. Of FoRECI-OSrUE— .SVc AIORTOAdE. 
 
 II. On Bill Foit Sale— ^ce ^Iortgaoe. 
 III. In Other Suit.s— .S'cc Fkactice. 
 
 DED1>JAT10N. 
 Of Ro.'.; -Sec Way. 
 
 A municipal corporation laying out a square 
 park, on lands act piired )>y them untrammelled 
 any trust as to its dispersal, may ileal with it 
 in any manner autliori;;ed by. section 509 of the 
 Municipal Act, R. S. 0. c. 174, at least where 
 no private rights have been acipiired in conse- 
 quence of their action ; but they cannot so deal 
 with lands dedicated by the owner for a special 
 purpose, which case is provided for by section 
 467. Whether the dedication arises only from 
 the act of the owner, or by express grant, the 
 municipality nmat accept it, if at all, for the pur 
 pose indicated. The owner of land dedicated to 
 the public a square by tiling a plan upon which 
 were the words, "Square to remain always free 
 from any erection or olistruetion :" — Held, that 
 the municipality had uo power to close up part 
 thereof, and to dispose of it to trustees of a 
 church. /« re Peck and the Corpuratioii of the 
 TowHofJaH, 4GQ. B. 211. 
 
 A bylaw passed by a municipal corporatioa 
 cannot have the effect of taking any lands of the 
 crown in addition to tliose appropriated by the 
 crown for the purpose of liigliways in order to 
 the opening ui) of the country. Neithei- can 
 paitics in iiosses.sion of Crown lands before 
 patent issued dedicate any portion of the same : 
 jiarties so in possession, liowever, may so far 
 bind tlu'Miselves Iiy their acts as that when a 
 patent shall issue to them the lands granted 
 would be liouuil by any right or easement to 
 wliieli tlieir s.uiction has lieen oljtained. AVd 
 v. Tr!i,i, '27 Chy. .374. 
 
 In lSr)(), the owner of lot five registered a jilaii 
 showing a sub-divisiuu of it into six lots witli a 
 lane running through the centre, which was in- 
 tendeil foi the use of the occupants of the lots 
 ad joining it. He afterwards sold some of tlie 
 h)ts, l)ut tlicy were all re-eonveyed to him. The 
 hits were always fenci.'d in as one property till 
 187t), when he sohl all the lot.s and the lane to 
 a Ijauk, by whom a building was erected, tlie 
 fences remaining as they had been until re- 
 moved when the Imilding was in i)rogress, and 
 being afterwards replaced by a new closed fence. 
 In 1580, at the instance of one ,M., tlie owner of 
 the adjoining lot four, who had recently, at his 
 own expense, laid out a lane across his lot, in 
 continuation of tlie lane in lot live, and coiiveyed 
 it to the corporation, a by-law was pas.seil by 
 the council opening the lane on lot live. It was 
 shewn that M. was the only person interesled 
 in having the line opened. Oslir, .1, qiiaslieil 
 the by-law on tlie ground tliat it had not beiii 
 passed in the interest of tlie public, but sim|ily 
 to subserve the interests of an individuah—Hclii. 
 dismissing the ap[ical, that the regLstratiou of a 
 plan of a suli-divi.sioa of a town lot and sales 
 maile iii acconiaiice with it does not constitute a 
 dedication of the lands thereon to tlie pulilie. and 
 the council had, therefore, exceeded their powtiv 
 in jiassing the liy-law in question :~ Held, also, 
 that the by-law, bein,',' passed in the interest of 
 a particular individual, was properly quashal. 
 Jn >•<- MartdH and tli' <':,r/i<iralioii «J' the Citii «f 
 St. Thomas, 6 A. W. .3'2.3. 
 
 See also ViinKuiii/hnct v. 
 Chy. 485 ; 1 O. R. ,319. 
 
 Dnii.''(i)i (i (il., •2i- 
 
 DEED. 
 
 I. E.XEl.'1-TIOX, 
 
 I. Scaf, L'Ol. 
 II. Altekation, 201. 
 
 III. CONSTUL'CTIOX AND OPERATION. 
 
 1. Dincription of Land. 
 
 (a) Genirully, 201. 
 
 (b) Bonndaries — Sec Water and 
 
 Water Cocrse.s. 
 
 2. DLxeriptioii of radicn, 202. 
 
 3. Conditionit, Rexervatidiin and Exc(i>- 
 
 tioiw, 202. 
 
 4. Cmki- Short Forma Ad, 203. 
 
 5. Covniaiifi in—See Covenant— Covi;- 
 
 NANTS FOR TiTLE. 
 
 6. Estate Created — See E.state. 
 
201 
 
 DEED. 
 
 202 
 
 7. Ot/in- C«.-(c,^ 203. 
 
 IV. RECTIFYINd AND VaRYINO, 204. 
 
 V. EviDKNCE OF Loss OF Dekd — See 
 
 DEN'CE. 
 
 VI. Presumptions as to Deeds- 
 
 Evi- 
 
 ■See Evi- 
 dence. 
 
 VII. EtiTorrKi-, by Deed— »S'ee Estoppel. 
 
 VITI. Registration of — .SVc Registry Laws. 
 
 IX. Particular Deeds— fe The Sevei!Al 
 
 TiTL.S. 
 
 I. Execution. 
 
 1. Seal. 
 
 The testimonium cl.inse iuapower of attorney 
 declared that the jirincijial set liis liand .aid seal 
 to the instrument. Tiie attestation chanse de- 
 clari'd that it was signed and sealed in the jire- 
 sence of a suhserilnng witness, and o])[)osite tlie 
 signature of tlie jn-ineipal was a visilde iinpre.i- 
 sion made by the pen in tlie form of a scroll in 
 which was insoribi d the word "seal:" — Held, 
 a siilHeient sealing of the document. Re lidl 
 anil /Had; 1 (). U., Chy. D. \-25. 
 
 II. Alteration. 
 
 Alteration of discharge of mortg.agc liy mort- 
 gagee's agent. See Saijli'.s v. lirotmi, 28 Chy. 10. 
 
 H. obtained from his debtor an absolute con- 
 veyance of land as security, which was .attacked 
 by the plaiutilT, who had subsequently recovered 
 an execution against the gr.antor, as being a 
 fraudulent prcfercMce. It was shewn that the 
 deed, after its execution, had been altered by 
 the grantee so as to convey the oorrei^t lot (22 
 instead of 122), the only lot owned by the grant- 
 or but no re-exeeutioii or aeknowledgiiient took 
 place ; the giantor, however, accepte<l a lease 
 from H. of the correct lot, which be afterwards 
 surrendered to H : — Held, that as the grantor, 
 according to the ruling in Sayles v. Brown, 28 
 Ciiy. 10, could not claim to have the conveyance 
 vacated, so neither could his creditor, the plain- 
 tiflf. Somimrrilk v. Rac, 28 Chy. 018. 
 
 III. Construction and Operation. 
 
 1. Description of Laiid. 
 
 (a) Generalli/, 
 
 The premises intended to be conveyed bj' a 
 tax deed, from the warden and tr>. surer to the 
 plaintiff, were described therein as 180 acres of 
 the east halves of two lots " commencing at the 
 front east halves of siid lots, taking the full 
 breailth of each half res]iectively and running 
 northwards so far as rec|uired, to make ninety 
 acres of each half :"— Held, that " northwards" 
 might be rejected, being evidently a mistake for 
 westward. Fenjmon \. Fnemai'i, 21 Chy. 21 1_ 
 
 A description of land in a <leed by reference 
 to other conveyances for a fuller description is 
 sutKcient. In re Trehreii nml Horner, 28 Chy. 
 624. ^ 
 
 Held, that the words " be the same more or 
 1 IBS," following the description of the quantity of 
 
 land, improperly inserted in a sheriff's deed 
 might be rejected as surplusage. Nelles v. White, 
 29 Chy. .338. 
 
 See also Foott v. Rke id al, 4 0. R. 94. 
 
 2. Dexeriplion of Parties. 
 
 The deed to the defendant company described 
 it by its original name of P. H. L. & B. R. Co., 
 when in fact its name had then l)een changed : — 
 Held, a suthcient <le3cri)itio person.e, to enable 
 the company to take, though it might not be 
 suthcient to sue in. Graml Jiinrlhm H. \V. Co. 
 v. Mhlhtnd K. W. Co., 7 A. R. 081. 
 
 3. Conditions, Reservations and EMeptions, 
 
 Defendant conveyed to his son .J. L., jun., the 
 east half of a lot, " reserving from the operation 
 of these presents unto the said jiarties of the 
 first and second partsfthe latter being defendant's 
 wife), during their joint lives, and during the 
 life of tile survivor, one acre of the said lot nere- 
 liy conveyed, the same acre to be taken in any 
 part of the lands hereliy conveyed, where the 
 said parties of the first and second parts see fit." 
 Det'endant continued to live i;n the lands with 
 his S(jii till the hitter's death, in 187G. Several 
 years before his death, .1. L., jun., built a small 
 house on the land, wliich was occupied by his 
 men till his death. After his son's death the de- 
 fendant went (ifi the land, but returned in about 
 a year, and livud in the small house built by his 
 son, and improved the same. The mortgagees 
 of the son sold to the plaintiff under the power 
 in their mortgage, and the defendant, at the sale 
 to the plaintiff, on being asked, said he had not 
 selected his acre, was then asked to do so, and 
 then selected the part where he was living. The 
 jilaintiff was present and heird this, and his con- 
 veyance was "sul)ject to the reservations con- 
 tained in the deed from .1. L. , sen., (the defen- 
 dant,) to J.L. jun:" — Held, that the reserva- 
 tion in tlie deed from the defendant to his son 
 was niori! properly an exception than a reserva- 
 tion : that an estate for the joint lives of the de- 
 fendant and his wife, and for the life of the sur- 
 vivor, remained in the defendant ; and he there- 
 fore was entitled to select the acre at any time, 
 and w.as not bound to do so in the life ti.ae of 
 his son. Burnham v. Ramsey, 32 (J. B. 49, dis- 
 tinguished. Liipointe v. Lnjlrin; 46 Q. B. 16. 
 
 The estate in question had been conveyed to 
 G. D. & L, P., between whom a partitiim had 
 been made, not under seal, giving to L. P. the 
 east half. Afterwards C L>. conveyed to the 
 defemlaiit his interest in the east half, and after 
 the execution of the deed by the defendant to 
 his son, L. P. by deed, reciting that by over- 
 sight there was t.o release from him of the east 
 half, .and that he was desirous of completing the 
 son's title, released the east half to the son. It 
 was contended that the defendant owned only 
 .an undivided moiety of the lot when he convey- 
 ed to his son, and that the plaintiff, claimine 
 through the son, could recover .an undivided 
 moiety of the acre selected by the defendant ; 
 but : — Held, otherwise, for the plaintiff took his 
 deed subject to the reservation in the defendant's 
 deed to his son, and the deed from L. P. to the 
 son wouM enure only to the benefit of the title 
 conveyed to him by his father. lb. 
 
 
 
 
203 
 
 DEFAMATION. 
 
 204 
 
 K ' 
 
 The grantor coiivoyt'il certain lands to the 
 grantee, liis lieirs ami assigns, and by a jiroviso 
 at the eoneluding jjart of the deed declared 
 " nevertlieless, that tlie above L. shall have no 
 riglit to sell, alien, or dispose in any way what- 
 soever ol the aliove-nientioned lueniises, Imt have 
 only the use during iiis lile-tinie, after which his 
 children will have full riglit to the said jirojierty 
 above nientioned ;''■ Held, on deniuner, that 
 such jiroviso was rejmgnant to tlie grant and 
 hnbenduni, in fee, and therefore void. Lario v. 
 ir.iM-c/-, '-'S ( 'hv. -J It). 
 
 By 18 ^'ict. c. •J.")0, W. !•'. and his lirother 
 were authorized to sell certain entailed property 
 in eonsiileration of a iionredeeniable rent repre- 
 senting the value of tlie property. On the 7th 
 iSepteniber, ISliO, \V. F., the appellant, and K. 
 v., assigned to their brother, A. F., a jiiece of 
 land forming ji'irtof the above entailed property, 
 in consideiatioM of a rente fonciire of six pounds, 
 I)ayal)le the lirst <lay of October of each year. 
 The deed was registered and contained the fol- 
 lowing stipulation : '■ lUit it is agreed that tlic 
 assignee cannot alienate in any manner whatso- 
 ever the said land, nor any part thereof, to any 
 person witlicput the express and written consent 
 of the assignors under penalty of the nullity of 
 the said deed. " The pni]ierty was subsequently 
 seized liy a judgment creditor of A. F., and :i\)- 
 pellant opiiosed the sale and asked that the sei- 
 zure be declared null, because the jiroperty seized 
 could not be sold l)y reason of the abnvi' prohil)i- 
 tion to alieii.-ite :--Held. on ajipeal, allirming the 
 judgment of the court below, that the dcjd was 
 made in aeconiance with tlie provisions of IS 
 Viet. c. 'JoO, and being a purely onerous title on 
 its face, the prohibition to alienate containeil in 
 said deed was void. Art. !t70 ('. C. L. C. 
 Quiere ; ^VIlether tlie substitutes may not, when 
 the substitution opens, attack the deed for want 
 of sufficient consideiation. I'rascr v. I'uiiliof, 4 
 S. C. K. T)!,-). 
 
 See Wihou v. ililiin nt ii/., 4(i Q. B. 'A, p. "234. 
 
 4. L'lulcr Slwii Fonim Act. 
 
 The operation of an ordinary deed of bargain 
 and sale under the Short Forms Act, II. H. O. c. 
 102, conveying lands to trustees considered and 
 acted on. Sid/aii y. Lkuih (/, '2~ Chy. lliit. 
 
 Short form of lease. See Einmdt v, i^ulnn, 
 27 Chy. 420 ; 7 A. K. 3()(i. 
 
 See McKdn v. MuKnij, 31 C. P. 1., p. 182. 
 
 7. OIIk r Ci('<in. 
 
 The owner of land ccjiiveyed a right of way 
 over his land to the deteiidants in Isii'J, and the 
 tleed contained the following stipulation : " The 
 company to makt! and maintain a farm crossing, 
 with gates at the ] present farm lanes, the fence 
 at crossing to be returned as much as possible." 
 11. the company's engineer treated for the con- 
 veyance, but had no power to agree for a second 
 crossing, though it was said he had promised if 
 he should find a second crossing necessary he 
 would, so far as in him lay, get it done, and 
 the deed was executed upon this understand- 
 ing : — Hehl, (reversing the decree of I'roudfoot, 
 V. C, 27 Chy. !)5,) that the defendants could 
 not be compelled to make a second crossing for 
 
 use in winter ; and that, upon the coustructioii 
 of the words above set forth, they were bound to 
 continue the crossing,not close it up or impair it 
 
 ' or alter its character as a farm crossing, but 
 were not obliged to keep it free from snow. 
 
 , I'roudfoot, V. C., dissenting. Catmvou v. ]Y<i- 
 rinijtim, Orel/, and Brim li. W. Cu.. 28 Chy. 327. 
 
 I Per f I.E. Tasehereau and Gwynne, JJ., That a 
 i deed, taken under (t Vict. e. 37, s. 17, l)efore a 
 i notary (though not under the seal of the com- 
 j missioners) from a person in possession, which 
 I was subse(iuently confirmed by a judgment of 
 ratilication of a Superior Court, was a valid 
 ■ deed, that all riglits of property were purged, 
 ! and that if any of the auteurs of the petitioner 
 failid to urge their rights on the moneys de- 
 posited by reason of the customary dower, tlie 
 ratitication of the title was none the less valid. 
 Chvvrkr v. Thr (juetn, 4 S. C. K. 1. 
 
 See Caiiuila l^crnununt Loan and Sitvinf/s C'a 
 V. Taylur, 31 C. P. 41, p. 194. 
 
 IV. Rectifying and Yakvino. 
 
 Held, tli.at the evidence set out in the report 
 of this case shewed that the agreement of the 
 parties was tliat the plaintill' should have a deed 
 with eovenant.s ineiely, as distinguished from a 
 (juit claim deed, and that it was through the 
 mistake of all tlie parties th.at tiie covenant as 
 flamed was entereil into, an<l that the deed 
 should be accordingly reformed by limiting the 
 covenant to tlie grantor's own acts in the usual 
 form. McKiu/ v. McKui/, 31 C. P. I. 
 
 A mortgage which had been executed by the 
 defendant I., reciting that it had been agreed to 
 be given to secure notes hcM by the plaintitl's, and 
 containing covenants for title, was reformed, on 
 parol evidence, by substituting for one of the 
 parcels inserted by mistake, which did not 
 belong to 1., another lot proved to be his at the 
 time of creating the nuu'tgage ; and being the 
 only other lot owned ])y him. Ban/: of Toronto 
 V. Irwin, 28 Chy. 3!)7. 
 
 Such a mortgage is not voluntary or without 
 c(ui8ideration so as to exclude rcfo'-mation. Ih. 
 
 The plaintilFs sought a reetitieation of the de- 
 scription of the [U'eniises covered by a mortgage 
 to them, by including therein the water lots and 
 dock propeity in front of the lots described in 
 the moi'tgage. The [ilaiiitills relied on parol testi- 
 mony, while the documentary evidence was all 
 in favour of the defendant :•-- Held, affirming 
 the decree of Spragge, C, 27 Chy. 08, that no 
 case was made for a reformation of the mortgage. 
 Duininion Loan Sovhtij v. Darlimj, 5 A. K. 57(5. 
 
 See also Mardonald v. Worthimjton H al., 7 
 A. K. r)31 ; 20 C. 1.. J. 07. 
 
 DEFAMATION. 
 
 1. Privilkoki) Co.mmuxk'ations, 205. 
 
 II. Affecting Persons in Trade or Bi si- 
 NEss, 206. 
 
 III. LiIMORALITY ANII UNFITNESS FOR So- 
 
 CIETV, 200. 
 
 IV. Si-ANiiER OF Title, 200. 
 
204 
 
 205 
 
 V. Plkading in Actions kor, 207. 
 VI. Particulars, 207. 
 VII. Apology, 207. 
 
 I. Privileoed Communications. 
 
 Claim : That thu defeiulant, an inspector of 
 licenses, falsely and maliciously published of the 
 plaintiti' a circular which he caused to be sent 
 to all licensed victuallers, &c., in the riding, con- 
 taining the following words: " W. 1{. (and 
 others) are in the habit of drinking intoxicating 
 liquors to excess, and you are hereby notified 
 that you are not to sell, give, &c., intoxicating 
 liquors to the said parties, or to the wife, hus- 
 band, child, enii)loyee, agent, or any member of 
 the family or household of the said i)arties." 
 Defence : That the commissioners in good faith, 
 intending to act within the scope of their powers, 
 passed a resolution, " 'J'liat no intoxicating li- 
 quors shall, under any pretence, be sold in any 
 tavern, &c. , to any ])erson who has the habit of 
 drinking intoxicating licpiors to excess, or the 
 wife, &c., of sucii person, or any person con- 
 cerning whom notice had been given to the land- 
 lord by tiie husl)and, &c., of such person, or any 
 justice of tiie peace or inspector, that such per- 
 son is in the habit of drinking," &c. : that the 
 licenses were issued to the ])eisons to whom the 
 notices were addressed, subject to the right of 
 suspending them for breach of the resolution. 
 And the defendant justilied upon information 
 obtained repecting the plaintilf, upon which lie 
 followed the terms of the resolution : — Held, on 
 demurrer, that the license connni.ssioners had no 
 power to pass the res{ilution, and therefore that 
 the defence was bad, for the connnunication was 
 not privileged, and the defendant's belief in the 
 vali.<lity of the resolution could not create .any 
 privilege. lluhcrU v. Clhnie — Miirj)liy v. C'limic, 
 46 Q. B. 2(!4. 
 
 The plaintiff was .assistant in the .shop of C, a 
 druggist, over which the defendant and her hus- 
 band, a physician, lived, tiie latter being 0.'.s 
 landlord and customer. The defendant having 
 in the presence of a witness accused the plaintilf 
 of having taken iSi from her trunk upstairs, her 
 husband told C that tlie plaiiitill' must be dis- 
 charged, or he would send him no more prescrip- 
 tions. A meeting was, however, arrangetl be- 
 tween the i>arties in the presence of the witness, 
 for the purpose, as they said, of an investigation. 
 On this occasiou the slanderous words were re- 
 peated, ancl the idaintiff was discharged from 
 O.'s employment : — Held, that what was said at 
 this meeting was privileged, and the case having 
 been left to the jury generally a verdict for the 
 plaintitf was set aside. Han/reaveti v. {iliiclair, 
 I 0. II., Q. B. D. 200. 
 
 The appellant. D., having been appointed chief 
 {Mat ofiice inspector for Canada, was engaged, un- 
 der directions from the postmaster general, in 
 making enijuiries into certain irregularities which 
 had been discovered at the St. John post otMce. 
 After making eiKjuiries, he had a conversation 
 with the respondent, \V„ alone in a room in the 
 jwat olKce, charging him with .abstracting miss- 
 ing letters, which respondent strongly denied. 
 Thereupon the assistant postmaster was called in, 
 and the apjiellant said ; " I have charged Mi-. W. 
 with abstracting the letters. I have cliarged -Mr. 
 W. with thu abstractions that have occurred from 
 
 DEFAMa^CIUN. 
 
 20G 
 
 those money letters, and I have concluded to sus- 
 pend him." The respondent, having brought an 
 action for slander, was allowed to give evidence 
 of the conversation between himself and appel- 
 lant. There was no other evidence of ni.alice. 
 The jury found that appellant was not actuated 
 by ill-feeling toward the respondent in making 
 the observation to him, but found that he was so 
 j actuated in the communication he made to the 
 I assistant postmaster : — Held, on appeal, 1. That 
 j the appellant was in the due dischai-ge of his duty 
 j and acting in accordance with bis instructions, 
 and that the words addressed to the assistant 
 j postmaster were privileged. 2. That the onus 
 lay upon respondent to prove that the appellant 
 aeteil under the intluenee of malicious feelings, 
 and as the jury found that the appellant had not 
 been actuated by ill-feeling, the respondent was 
 not entitled to retain his verdict, and tlie lule for 
 a non-suit should be made absolute. Diice v. 
 Wahrhiiri/, (> S. C. li. 143. 
 
 II. AKFix'Trxcj Pehson.-* in Trade or Busixe.ss. 
 
 A medical practitioner, regi.stered in(ireat Bri- 
 tain but not in this province, cannot maintain an 
 action against a person slandering liim in his pro- 
 fession. .Sec .S/iirriiKj v. AVw.v, 31 0. P. 423. 
 
 The defendant siiokc of the plaintiff, a miller 
 .and grain bu3'er, that one of the iiig millers 
 (meaning the plaintill) had run away owing 
 iiioney to him and otliers : that he, the defen- 
 dant, had come in to catch the plaintilf, but that 
 he had gone or cleared out. At the trial a non- 
 suit was entered, on the objection that the words 
 were not shewn to have been used with reference 
 to the plaintitf's business, and no spCv'ial damage 
 was proved : — Held, that the nonsuit ., .is wrong, 
 for the words used cast an imputation upon the 
 solvency and financial standing of tlie plaintiflf, 
 and it was Sov the jury to say whether they were 
 spoken in reference to his business, and calcu- 
 lated to injure him therein. Lutt v. J)ntri/, 1 
 
 (). n.. (^ B. i>. 577. 
 
 See Fnriiicv v. Ilnniillon Trlhiiin' I'l'iiiliii'/ and 
 Puhli^hhiij Co. (I III., 3 (). n. .538, /c/Vrt. 
 
 III. Immoh.vmtv and Unfitnes.s for Society. 
 
 To a statement of claim, charging the defen 
 d.ants with the publishing of the plaintitlin their 
 newspaper that he had seduced and lietr.iyed one 
 B. P., and was a man unfit for the society of re- 
 spectable people, &c., whereby the plaintiff was 
 injured in his credit, &c., the defendants pleaded 
 that tlie article was published bona tide and with- 
 out malice, and for tiie public beiielit, and in the 
 usual course of the defendants' duty as public 
 journ.alists, and was a correct, fair, and honest 
 report of proceedings of public interest and con- 
 cern : — Held, on demurrer, bad, f(u- the [lubliea- 
 tion complained of was in no sense for the putdic 
 benetit, nor published in tlie course of defciidants 
 duty. Faniiir v. Hamilton 'I'rihnni' Prhil'm / tiinl 
 PubUMnij Co, et. at., 3 O. K., Q. B. D. .■..'{S. 
 
 r..;. P"'mf>- V. Sohnc.'i, 45 Q. B. 15, p. 207. 
 
 IV. Slander ok Title. 
 
 See Tlie Cntnrh Indiisfrial Loan <(■ Inveat- 
 mint Co. v. Limltiy et al., 3 O. R. tj(i ; 4 0. R. 
 473. 
 
 ^5 
 
 i 
 
 >< 
 
 
2U7 
 
 DISCHARGE OF MORTGAGE. 
 
 208 
 
 V. I'lkadino in Actions for. 
 
 Tn an action of libel the i)l,iintilf alleged that 
 tilt! defendant had aeeu«ed liini in a newspaper 
 article of having made false returns to the (jov- 
 eniineiit, in IiIh liusiness of distiller. I'o this the 
 defendant ((leaded justilieation : —Held, that the 
 pliintitr was entitled to jiartieiilars of the defence 
 int.'nikd to be set up under this plea, ('urcurun 
 V. lh,i,l,, 8 1". i{.4<J. — Dalton, Q. C. 
 
 in an action for libel the plea of not guilty was 
 held ini'on.-ii-iteut witii a pica of aimlogy and pay- 
 ment iito (.'oiirt, and was ordered to be struck 
 out. Dniilr V. Own Smind PriiitiiK/ Co., 8 P. K. 
 fill.— Dalton, Q. C. 
 
 A declaiation liy a married woman for slander, 
 imputing tliat she liad coiiiiiiitted incest and 
 adultery with her father, and alleging as grounds 
 of sp.-ei d ihiniage (1), the loss of the consortium 
 of her husliand, ('_'), tliu loss of the society of 
 friends, was Held, on deMiurrer, good, although 
 the secnml ;,'ronnd was clearly insullicient, in not 
 naming tlio frien<ls. I'dbinr v. ■Siiliii''--i, 45 (^. 
 B. 15. 
 
 Held under R. .S. O. c. 125, that in an action 
 for a tort (in this case the action was for slander) 
 coinmitted l>y a wife during coverture, the hus- 
 band is not a projier party, but the wife must be 
 sued alone. Aiiici v. Uoijij-.t it ux., 31 C. P. 195. 
 
 VI. P.VKTICn.AUS. 
 
 In an action for slander in charging the plain- 
 tiff with theft, i(artieulars were ordered shewing 
 the person to whom the words were spoken, or 
 if such jiersou were unknown, or the words were 
 spoken to the plaintiff, then the name of any 
 person who was present and heard or might 
 have heard the words si)oken. Thornton v. (. 
 tt'iclc, !) K. n. 5.^5.— Cameron. 
 
 See Corcuran v. Jiubh, S P. IJ. 49, Kiipra 
 
 A dmissibility of, on proof of absence of witness. 
 See L'lijina v. XeUm, 1 O. R. 500. 
 
 DEPUTY CLI'UIK OF THE CROWN. 
 
 Where an examination of parties pursuant to 
 R. S. O. 0. 50 s. IGI, takes place before a de- 
 puty clerk of the Crown, though not designated 
 in the order as acting in his otljcial capacity, the 
 fees for such examination fire payable in st:;mps, 
 anil not in mcmey. Denmark v. AlcC'onaijhy, 8 
 P. R. 13G.— Osier. 
 
 DEPUTY SHERIFF. 
 (S't'c Sheriff. 
 
 DESCENT, 
 
 The proviso in the statute of distrihiitiong 
 that "There be no representations admitted 
 amongst ccdlater.ala aft^r l)rothers' and sisters' 
 children," excludes the children of a deceased 
 nephew of the intestate. Vrowthcr et at. v. 
 Cairfhra vt a/., 1 0. R., Chy. D. 128. 
 
 DESCRIPTION OF GOODS. 
 
 In Bills of Sale and Chattel MoKTOAOEa- 
 Ste Bills of Sale anu Cu.ittisl Moktoaobs. 
 
 ap- 
 
 I. 
 
 DESCRIPTION OF LAND. 
 In Deeds -.SVc Deed. 
 
 II. B0UNDAIUE.S— Sec Water and Water 
 
 Courses. 
 
 See I)oi//i' 
 R. 69, ■•iitjirii. 
 
 VII. Aroi.ooT. 
 
 Owen Sonnd Prin/'uiij Co., 8 P. 
 
 DELAY. 
 
 See Laches. 
 
 DELIVERY. 
 
 Ok Po.ssession— See Sale of Land. 
 
 DESERTION. 
 See Husband and Wife. 
 
 DEVISE. 
 See W^ill. 
 
 DEM UK HER. 
 
 Sv Plkadtno. 
 
 DEPARTURE IN PLEADING. 
 
 Si-e Plkadini!. 
 
 DICKINSON'S ISLAND. 
 
 Dickinson's Island on Lake St. Francis is part 
 of the county of Glengarry. Eeiiina v. Diiiiuette, 
 9 P. R. 29.— Osier. 
 
 DIRECTORS, 
 
 j .See COHI'ORATIONS — RAILWAYS AND RaILWAV 
 
 I Companies. 
 
 DEPOSITIONS. 
 Undeu Commissions— See Evidence. 
 
 DISCHARGE OF MORTGAGE. 
 See MoRTGAoi. 
 
209 
 
 DTSTKESS. 
 
 210 
 
 DISCLAIMED. 
 I. Of Title— .S'ct' Ejectmknt. 
 
 II. I.N CoNTlSOVEliTtn El.KCTIONS— iS'wMuNT- 
 t'lPAL COKPORATIONS. 
 
 DISCOVERY. 
 Of DtHi'Jir.NT.-i — Sec Evidence. 
 
 Obtaining tliscovery bj' cross bill. See Dinct 
 i'lhli- Co. V. Doiniiihni Ti'lci/mph Co., 28 Chy. 
 018. 
 
 A<Iiling ](!irtie3 in the m.ister'.s office for the 
 purpose of cliscovery. See Ifopncr v. llarrUuii, 
 28 Chv. 22. 
 
 DISQUALIFICATION. 
 
 I. Of ?.Ii:.Mni:ns ok I^IrNrcii'.n. Coi'\ciL.s — 
 
 Sir r^IrNICIl'AL CJoiirOIiATIONS. 
 
 II. Of I'aiu.ia.mentaky Candidates — See 
 Parliament. 
 
 III. Of School '1'uustees — See Pitblic 
 
 Schools. 
 
 IV. Of MA(;isTUATia— Ac Justice.^ of the 
 
 Peace. 
 
 Where two sharolioMora, who were .also jiro- 
 visional directors, and who wore candid ites for 
 re-election, wore appointed scrutineers, and direc- 
 tors were then elected excluding the plaintiff : — 
 Held, that the duty of the scrutineers wag so 
 plainly iii conHict withtheirinterest as candid.ates 
 for the directorate, tiiat tlicy were disqu.aliiied 
 from so acting. Dkkiiin v. McMurray, 28 Chy. 
 
 DISTRESS. 
 1. FoK Rent. 
 
 1. What ComliMeif a D'stresn, 210. 
 
 2. E-mnptionK for Tienefit nf Trade, 210. 
 
 3. Si'hnre of Gonda Subject to Chattel 
 
 MorUjaije, 210. 
 
 4. Doiihhi Value, 210. 
 
 5. Wromiful Dhirp<!.i. 
 
 (a) Jimtljicaiion as Owiier,l2U. 
 II. ForMortoage Mo..ey, 211. 
 
 III. Power of Distues.s for Annuity, 21.?. 
 
 IV. Foi: '^^■TNictPAL Taxes— .9^e Assessme.nt 
 
 an. ■•■es. 
 
 V. DAMA(iE Feasant, 21,S. 
 
 VI. Under Magistrates Warrant — .S'ee 
 Justices of the Peace, 
 
 VII. Landlord's Claim for Rent on Execu- 
 tion— .SW Sheriff, 
 14 
 
 1. Rent. 
 
 1 What CoiiKl'tlutes a Didresa, 
 
 The plaintiff was niortgigee of certain goods of 
 one F. (t., a tenant of liis father, the defendant 
 C. (1 The landlonl on the 17th February, 1883, 
 went to the house of the tenant, and decL-vrcd 
 that ho seized everything for rent. He touched 
 nothing .and made no inventory. On 24th Feb- 
 ruary lie went again and told the tenant's wife 
 that the projierty had been seized for reiit, and 
 to let no one take anything away, when siie pro- 
 mised to do her best for him. t)n oth March the 
 plaintiff, took possession nnder his mortg.age .and 
 removed the goods. A l)ailiff wont the next day 
 for taxes in arrcar, and the landlord gave him a 
 distress warrant to take goods for rent. The bailiff 
 then took the goods which had been removed, 
 and on the tenant's waiving an inventory, ad- 
 vertizing, itc, sold them witliin two il.iys to .a 
 nepliew of the landlord : —H«.dil, th.at the land- 
 lord's two visits of 17th and 24th February did 
 not amount to a distress. Whinifell v. Gijard cf 
 nt., Z (). R., Q. B. D. 1. 
 
 ! 2. Exemptions for lienffit of Trade. 
 
 The exemption from distress of goods entrusted 
 I to persons carrying on certain public trades, to 
 I exercise their trades upon them, is a privilege 
 grounded on ]iublie policy for the l)encfit of trade. 
 ! In this case saw-logs were taken to a saw-mill by 
 j the plaintiff, to be converted into lumber in the 
 I due course of business of the mill, and were dis- 
 I trained there for rent by defend.iut : — Held, that 
 the business of s.awing lumber for hire is a trade 
 in which is exempted from distress for rent the 
 [iropcrty of a stranger brought in to ha converted 
 into lumber ; and that tiie plaintiff was entitled 
 to recover, notwitiistanding that one of the ten- 
 ants of the sawmill .appeared to have an interest 
 with him in the saw-logs. Put/erMii v. Thomp- 
 son, 40 Q. B. 7. — Reversed in appeal, 9 A. R. 32(3. 
 
 Tiie defendant distrained for rent a reaping 
 machine on premises levsed by him to one G., 
 from whom tiio plaintiff, an hotel keeper, had the 
 use of the j'ard and stable. The m.achine had 
 been left at the plaintiff's hotel about six months 
 before by one R., an agent for the sale of reaping 
 machines, wlien he was stojiping there, and R. 
 had never been at the hotel since, except perhaps 
 on one occasion. The plaintiff was pai 1 nothing 
 for keeping the machine, nor did he .assume any 
 responsibility therefor. At the tri U it was sought 
 to prove that it w.is es-iential to the plaintifTa 
 business to receive .ami keep such machines 
 brought by his customers, but the evidence mere- 
 ly shewed tliat a refusil to do so would or might 
 render his hotel less popular : — Held, reversnig 
 the judgment of the County ( Jourt, that the m.^- 
 chine was not exempt from distress. Mitchell v. 
 Coffee, 5 A. R. r.25. 
 
 3. Se'r.ure of Ooods Suhjcrt to Chattel Mortgage. 
 
 Duty of tenant to protect. See Herring v. 
 WihoH, 4 O. R. (J07. 
 
 4. Double Value. 
 
 The defendant leased eert.ain land to the plain- 
 tiff for a term, during which the latter was tn 
 
 
 
211 
 
 DISTRESS. 
 
 •J 12 
 
 
 iiiakc! inipidvciiuiitH, and at tliu txpinitidii of tlie 
 Uiiii tlie valiiL' of siu.li iiK}ii()Vciiitiit.s, as v ill as 
 the ainoiiiit ol' the iiht, was to be iixed Ijy ailii- 
 tratii>ii. 1 lie (iLtLiulaiit liaviiig distiaiiicil tor 
 rei.t L'L.iiiitd to lie due :— Held, that there lieiiig 
 no tixtd rent agiiid mioii there was no right ot 
 distress, ami the defmih.nt was tlierelore merely 
 a tiesj)asser and li:.l>le to daiiiages to the aetiial 
 value ot the goods, luit not to (li>ul)le their value, 
 as it was not a e. i-e within \1 W. &. ^1. Sess. 1, 
 e. T), see. Ti, which refers to the wilful : huse of 
 the iiower ol distress. ("iinhle, that although 
 there may lie no rent in an tar until the same is 
 lixeil liy arliitr.ition, there eannot be said to be 
 none <luo. JJilrli,// v. JJini}/, 31 f. 1'. '2(iti, G4!). 
 
 I'cr Cameron,.!, \\heie a jilaMitiiV cIt' " dou- 
 bk' value lor distrainii'g when ' o ren ,.', 
 
 he must makesueh ehiini at the t., 1, .-.i: 
 
 have le jury dircetcd uijou it. Jj il . i.> 
 
 i). B. i(i7. 
 
 5, ]Vriiii(jftd DiMnxa. 
 
 (a) Jiisti/ivdlioii UK (lirri'i: 
 
 Where a party distrained, as landlord, on goods 
 whieh as a matter ol fact had, by .sul)sei|uent 
 agreeiiient between himself and the tenant, but 
 before the distress, beeoiiie his alisolutely : — 
 Held, that he might justify the taking on this 
 latter ground. Armour. .1., dissenting, on the 
 ground that the instrunieiit under w hieh the de- 
 fendant elaiined the goods, set out in the ivport, 
 had not the elieet of transferring the property in ; 
 them to the defendant. Udl v. Jris/i, 45 Q. B, 
 
 II. Foii Muiii'(;\i:i-; Monj;v. 
 
 By a mortgage under the Short Foiiiis of Mort- 
 g;'ges Act, the interest was made payable on the 
 30th of January in eaeh year, and the mortgage 
 contained a jiower of distress for arrears of in- 
 terest. l)n the 3()th January, 187'J, two years' 
 interest was overdue, and on '23rd May follovN- 
 iiig the defendants, under power of attorney 
 from the mortgagee, as his agents, entt red upon 
 the mortgaged premises, and distrained the plain- 
 tilT's goods lor arrears of interest. The phiintilf 
 was tenant of the iiuirtgagor, and had entered 
 after the mortgage. The defen<lants notified 
 the plaintiti' that they had distrained, but they 
 did not remove the goods or place any one 
 in charge. On the 18th August following 
 the defendants distrained, and sold the plaiu- 
 tiflF's goods for $8.7") and costs, being for a half 
 year's interest, ending 30th July, 1879, in ad- 
 dition to the previous seizure and demand : — 
 Held, that the defendants having abandoned the 
 first seizure, could not seize a second time for 
 the same deman<l : — Held, also, that the half 
 year's interest claimed by the second seizure was 
 not due by the terms of the mortgage, and that 
 the distress was for that rea.son illegal : — Qua're, 
 whether the goods of a stranger could be seized 
 under such a distress clause. La Va.snaire v. 
 Heron Hal., 45 Q. B. 7. 
 
 The distress clause in the Short Forms of 
 Mortgages Act is merely a license to take the 
 goods of the mortgagor ; the intention being to 
 provide in a concise referential manner for the 
 disposal of the goods when seized in the same 
 
 of landlord and tenant may have lieiii thereb; 
 created, yet there w:ia no rent lixed lor 
 
 manner as goods seized for rent. A mortgage 
 made in pursuance of this Act, coiitaiiud the fob 
 low iiig : " .■ind the mortgagor doth release to the 
 company all his claims upon the said lands, and 
 doth i ttorii to ajul become tenant at will to the 
 mortgagees, snlijeet to the said proviso." It 
 also provided that the niortgagCLS on default of 
 paynu^nt for two months, might on one mortli's 
 notice, enter on aii<l lease or sell the kinds ; that 
 they might distrain for arrears of interest, and 
 that until defrult of payment, the mortgagors 
 should have (jiiiet i)ossessioii :- Held. Usler, J., 
 dissenting,reversini, the judgment of the (Queen's 
 Heiieh, 45 (j. 1!. 17<i, that tli<aigli the relation 
 
 "lereby 
 W'liioh 
 there was power to ilistrain, and the plaintiffs 
 therefore could not claim a laiidloru's right, as 
 against an execution creditor, of a year's arnars 
 of interest on their mortgage belore removal by 
 the sheriff. Tni'^t ami Jauiii Ch. v. J.nimi.'.oii 
 il, III., (I A. ];. '28ti. Alhrnied on appeal to Su- 
 p •' Court. 
 
 \ .11' rlga X' of land contained no attornment 
 clause, and no provision ex])ressly creating the 
 relationship of landlord and tenant between the 
 mortgagor and niortg^'.gee. but it provided for 
 lios.essii'ii by the nioitgagor until default; that 
 on <let;!u!t in paynunt of any one instalment for 
 tvo months all should become ilue, and that on 
 default in payment of any instalment tlie inortga- 
 gies might distrain therel'or, and by distress 
 warrant recover by way of rent reserved, as in 
 the ease of a demise of the siid lands, so much 
 as should be in arrear. The first instalment fell 
 due on the 1st Xoveniber, 18711, aiid the mortga- 
 gors being in possession, the mortgagee.'; (in 
 trained therefor on the (!tli October, 1 880: — Hehl, 
 that this right to distrain was a mere license, 
 and did not warrant the taking of a stranger's 
 goods tipon the premises. Seinlde, jier Cameron, 
 J., that the mortgagors, on default, ceased to 
 hold as tenants, and the distress therefore was 
 illegal, us having lieeii made more than six 
 months after their term had expired. Lain;/ et 
 at. V. Ontario Luuu and Sai'imj.t ('u.,4(i Q.li. 114. 
 
 The goods distrained were crojis produced 
 from the land after the 1st November, 187!), and 
 the plaiutifl's claimed them under a chattel mort- 
 gage, given on 31st May, 18a0, of such crops, 
 which had then been just sown ; — Hehl, that the 
 growing crop passed by the chattel mortgage to 
 the plaiutifl's, who were entitled to recover for 
 them as against the defendants, lit. 
 
 The plaintiff mortgaged his land to the F. L. 
 & S.'s Co. by a mortgage which cont.iined a dis- 
 tress clause, and gave a second mortgage to the 
 defendant, liy which it was agreed between 
 them that if default was made iii p.iyment of 
 interest to the company the defendant should be 
 at liberty to pay it, and should have the same 
 remedies for its recovery from the mortgagor 
 that the company had. Default having been 
 made the company exercised their power of sale, 
 and the defendant became the piireliaser. After 
 signing a contract for the purchase he distrained 
 the goods of the plaintiti' for the interest that 
 had fallen in arrear to the company. Shortly 
 afterwards he obtained a formal conveyance of 
 the land, expressed to be uniler the pow^er of 
 sale in the company's mortgage : — Held, that 
 the plaintiffs estate having paid the mortgage 
 
213 
 
 DIVISION COURTS. 
 
 214 
 
 debt to the company in full the defendant could 
 not be said by means of his i)urchase thereof to 
 have paid the interest in arrear so as to entitle 
 him to distrain therefor. Uarron v. Yemen, 3 
 0. K., Q. B. D. 126. 
 
 III. POWEE OF DiSTllESS FOR AnNUITV. 
 
 EBfectof. SeeCmiev. Cmie, 27 Chy. 425, p. 10. 
 
 V. Damaoe Feasant. 
 
 A municipal council by by-law, passed pur- 
 suant to the Municipal Act, enacted that cer- 
 tain descrijitions of animals (naming them), and 
 all four footed animals known to lie breachy, 
 should not lie allowed to run at largo in the 
 township ; and provided for fixing the lieight of 
 fences. 'I'hc plaiutitl's cattle strayed from the 
 higliway into the lands of defendant Williams, 
 wiiose fences were not of the height rccjuired by 
 the by-law. He distrained them and they were 
 impounded, defendant Steeper being the pound- 
 keeper. In an aeti(m of replevin :— Held, that 
 .as the by law did not atiirmatively authorize 
 these cattle to run at large by negatively pro- 
 viding that certain otiier classes of animals 
 should not ))e aUowed to do so, the plaintiff was 
 liable at common law, and under Jl. S. O. c. 
 1!)5, for the damage done, irrespective of any 
 question as to the height of the defendant's 
 fences. Cronv. v. St&in'r ctaL, 40 Q. B. 87. 
 
 Defendant seized the plaintiff's oxen damage 
 feasant in his wheat held, but being unable to 
 tiud a ]ji>uiid-keeper, turned them loose near the 
 plauititl's gate. On the eveuing ot' the same day 
 the defendant .again seized thorn for doing dam- 
 .age to his meadow and impounded them, giving 
 a statement of his claim for damage to the wheat, 
 but making no claim for injury to the meadow : — 
 Held, that the damage to the wheat had been 
 abaudont^d, and that the impounding and s.ale of 
 the oxen for the damage so claimed were illegal. 
 The plaintiff forbade the sale, when defendant 
 told the pound-keeper to sell and that he wouM 
 be responsilile : — Held, that the defendant and 
 pound-keeper wero both liable. Sjjafford v. 
 Hubbell, M. T. 2 Vict., R. k J. Dig. Col. 1517, 
 explained. Buist v. McCumhe cf ul., 8 A. R. 
 598. 
 
 DLSTRIBUTIOX OF ESTATE. 
 I. Statute of Distriijutions, 213. 
 II. Pautitiox of Estate— Sec Partition. 
 
 III. AccoRDiso to Testa-jmentary Disposi- 
 
 tions— 'Vee AN'lLL. 
 
 IV. Administration .Suits- i'w Executors 
 
 AND Administrators. 
 
 V. Parties to Distribute- -fte Executors 
 and Admin lstratoks. 
 
 I. Statute of Distributions. 
 
 The proviso in the statute of distributions that 
 "There be no representations admitted amongst 
 collaterals after brotheis and sisters children" 
 excludes the chihlren of a deceased nephew of 
 the intestate. Crowtker et ul. v. Caivtiira et al., 
 1 0. E., Chy. D. 128. 
 
 DITCHES. 
 Sue Water and Water Courses. 
 
 Obligation of municipal corporations to fence. 
 See Walton ef itl. v. Tlie t'or/iDntlkm of tlie 
 County of York, G A. R. 181. 
 
 DIVISION COURTS. 
 
 .JrRISDUTION. 
 
 1. Where Aet'ion,s inn.it he llroniiht and 
 
 Proceedini/'i Carried on, 214. 
 
 2. Title to Laud, 214. 
 
 3. On Aeconnl", 215. 
 
 4. Aclinn.H on Xoti.i, 215. 
 
 5. OtJm- Ctt.scs 216. 
 Execution, 21()'. 
 iNTr.iM'i.r.Aiinu, 217. 
 Attachment of DEias, 217. 
 Pr.utioe, 218. 
 
 Appeal i-rom, 210. 
 
 JuiioE, 210. 
 
 Clerk and his Slretie.-!, 220. 
 
 BAiLirrs, 220. 
 
 Division Court Bonds, 220. 
 
 Secukiiy for Costs — See Costs. 
 
 II. 
 III. 
 IV. 
 
 V. 
 
 VI. 
 
 VII. 
 
 VIII. 
 
 IX. 
 
 X. 
 XI. 
 
 1. Jurisdiction. 
 
 1. Where Aetton.f »iti.-.l be Brouijht and Proceid- 
 imjii Carried on. 
 
 The defendant who resided within the limits 
 of the Tenth Division Court of the County of 
 York drew a cheque in the plaintiff's favour 
 witliin tlie limits of the First Division Court of 
 the same county upon a ))ank situate in the 
 Tenth division. The cheque having been dis- 
 honoured, the plaintiff sued upon it in the First 
 Division Court :— Held, that the action w.aa im- 
 properly brought there .and that a suinmous for 
 a prohibition thereto, ou the ground of want of 
 jurisdiction, must be made absoUuo. Kin / v. 
 Farrell, 8 P. R. 110.— Osier. 
 
 The defend.aut residing at Port Elgin, by let- 
 ter, instructed the pl.aintiff, an attorney at To- 
 ronto, to take certain leg.al proceedings. The 
 plaintiff having performed these services lironght 
 the present suit in a Division Court at Toronto, 
 to recover his fees : — Held, that the cause of 
 action partly arose in each iilace, an'l that a pro- 
 hibition should issue. In re HaijL v. Dalrympk, 
 8 P. R. 183.— Hagarty. 
 
 2. Title to Land. 
 
 In an action in a Division Court to recjver 
 $70..'S0 for taxes on certain land, which defendant 
 was to pay as rent therefor, the facta as to the 
 terms and conditions of the tenancy were dis- 
 puted, but the defendant did not dispute the 
 plaintiff's title. Ou the plaintiff obtaining judj[- 
 
 
 
!i:. 
 
 DIVLSION COUKTS. 
 
 21G 
 
 'J 17 
 
 • I 
 
 c 
 
 moiit for till? atnount cliiiinoil, tho (lofendint aji- 
 \)V\fi\ f'lr ii iiriiliiliitioii, on the grouiKl thiit tlic 
 titli; til 1,111(1 Viis brmij^lit in inicstimi : — llelil, 
 tli.it tlio iiiiiiniiit w.is lUDiH'i'ly ii'iMivunilili/ in a 
 I >i vision ("otirt. /// /•<• KiciHih v. MalhoUnml, 
 \) v. It. M.-). -Cainuiini. 
 
 3. On Arruiiiits. 
 
 WIktc tlio oriLjinal ilciiiiinil, no matter liow 
 lar;;u, ia asccrt.iiiifcil liy tlii! siLjnatui'e of tiio 
 ])aity lialiK:, ami a lialaiu'c not oxcijoiliiig !?-00 
 ri-'iiiaiiiM iliiu, tliu Oivisiiin Courts iinilor the Act 
 of 1S8() liavo jtiriHiliution. Hunk of Oltuim v. 
 M<-Laiii//,liii, 8 A. J{. r)4.'{. 
 
 4. A'tioiix on Xo>r.-i. 
 
 Tlic plaintitT siioil tlic lU'funilaiit in the Divi- 
 sion Court lor slOO, anil cniloisid on tlio siiin- 
 nions as )iarti(,'iilars a jiroinissdry note for.^i'25 : — 
 Jhlil, tliat tlio iilaintiir iiiiglit at tliu trial aban- 
 don in his particulars the excess ahove .SlOO, so 
 as to bring the case within l)ivisioii Court juris- 
 'lii'tion. Jnri-.SIii'jdii/c iin(l_Wil.-!iiii,S 1*. 1!. 5.— 
 Hngarty. 
 
 I'laintiir sueil on a promissory note for §73. 14, 
 payable with interest at 7 per cent ; the jirinciiial 
 anil interest together amounting to §103.44 ;-- 
 Held, that under the Division Courts Act, 1880, 
 the amount of fixed legal damages in the nature 
 of interest for iion-payinent ol a promissory note 
 need not be under the signature of defendant, 
 and the above claim could thei-efore be recover- 
 ed in a Division Court. MrVritrb-n v. Crcswkk, 
 
 8 I'. 11. SOI.— Uagarty. 
 
 PlaintifT having paid a note of which ho and' 
 defiudint were joint makers, for .$1(5!), but which \ 
 the jilaintiff signed as a surety only : Held, that j 
 plaintiff could not sue defendant in a Division ' 
 Court for the money so paid, the amount not ; 
 being ascertained by the signature of defendant. 
 A summons for prohilntion was made absolute 
 withoutcosts, there being no meritorious defence. 
 Kinsf-y V. Roche, 8 P. R. 515.— Osier. 
 
 The plaintiff sued on <a promissory note for 
 8158, payable with interest at ten per cent., the 
 principal and interest amounting to!? 185. fi5 : — 
 Held, following McCracken c. Creswick, 8 P. R. 
 601, that under the Division Courts Act, 1880, 
 43 Vict. c. 8, ()., the above claim could be re- 
 covered in the Division Court. /« Re Wldini'i/cf 
 et al. V. McMahoii et al., 32 C. P. 187. 
 
 In an action in a Division Court against a mar- 
 ried woman on a promissory note, the existence of 
 separate real estate was proved, but no evidence 
 was given of any separate personal estate. .Judg- 
 ment was remlercd for plaintiff, the amount 
 thereof to be paid out of ihe separate property 
 she had when the note was made. lb. 
 
 The Division Courts Act, 1880, does not a])ply 
 to the Division Courts in Territorial Divisions, 
 and Unorganized Tracts, and a prfihibition was 
 ordered to restrain a stipendiary n^agistrate from 
 adjudicating upon a claim on a promissory note 
 for i?110. In Re The Ontario Bank v. Harston, 
 
 9 P. R. 47.— Osier. 
 
 See [n Re Drinkwater v. Clarridqe, 8 P. 
 804, p. 219 
 
 R. 
 
 5. Other Canes. 
 
 On an apj plication for a prohibition to a Divi- 
 sion Court after judgment and execution, where 
 the (piestion of jurisdiction depends upon dispu- 
 ted facts— as in this case, upon whether the per- 
 son by whom the bargain sued upon was made, 
 aited as ])lainti(rs or defendant's agent— ^if the 
 Division Court .ludge has decided this ijuestion 
 on evidence, and found in favour of his jurisdic- 
 tion, the Court will not interfere with his find- 
 ing ; but here, there having been no such deci- 
 sion, and the want of jurisdiction being clear up- 
 on the allidavits tiled, a prohibition was granted. 
 Sl('i>h('nti v. L(ii>/(tiil(', 8 P. R. !52.— Hagarty. 
 
 The process of Division Courts is of no effect 
 outside the Province of Ontario. Oulario Cilasn 
 Conijianij v. Sn'iirt:., 9 P. R. 252. — Cameron. 
 
 The jilaintiff sued in the Division Court on a 
 claim which was originally composed of a solici- 
 tor's bill of costs, .'5!3(i.0li ; damages, 1JG!).33 ; due 
 for advice, .§(> ; total !?! 11.39. The iilaintitf aban- 
 doned as to si 1.3!), without specifying from what 
 items ho threw the amount off. The plaintiff, 
 at the trial, agreed to take .S.30 for tlio tiist item, 
 and the learned Judge reduced the .'?;>'J.33 to .?G2, 
 the !?() item was struck out, and the total then 
 stood .'502.33. This sum was further reduced to 
 .'$80, for •Hhieli judgment was entered : — Held, af- 
 (inning the judgment of Wilson, C. J., that pro- 
 hibition was properly directed ; that the ab.an- 
 donment being general, it could not be assumed 
 that the plaintiff had made a reduction in his 
 demand for damages, so ,as to give the Court 
 jurisdiction ; and even if the (!imrt had power 
 to conline the prohibition to the claim for dama- 
 ges, it could not be done here, for it did not ap- 
 ])oar how much of tin; iSSO was ajiplicablc to such 
 claim. Mvck v. .Srolxll, 4 O, R., C. P. D. .553. 
 
 The nature of the claim, as appearing on the 
 summons, is the claim recognizable on a motion 
 for prohibition. Hi. 
 
 Ry the Division Courts Act, 1880, these Courts 
 have jurisdiction in actions for a debt, the 
 amount or balance of which does not exceed 
 •'J200, and tho amount or original amount of the 
 claim is ascertained by the signature of the de- 
 fendant. Where the claim was u])on the follow- 
 ing document : " Iteceived from R.W., an order 
 from C. B., ordering me to pay him the sum of 
 •'ij!140, which is .accepted on the following condi- 
 tions, providing he carries out his agreement 
 with me as cheese-maker." Signed l)y the de- 
 fendant : — Held, that the Division Court had no 
 jurisdiction, because the writing did not ascer- 
 tain the amount, inasmuch as it depended upon 
 the happening of certain events with respect to 
 which evidence h.'id to be adduced. Wiltsie v. 
 Ward, 8 A. R. 549. 
 
 See Re Mead v. Crear)/, 32 C. P. 1, p. 217 ; Be 
 Burdett a Solkitur, 9 P. 'R. 487 p. 44. 
 
 II. KxKCUTioy. 
 
 Per Obler, .1. A married woman's separate 
 personal estate, but not her real estate, may be 
 charged and sold under a judgment .against her 
 in the Division Court. The omission to prove 
 the existence of such separate personal estate, 
 though it may be urged as a defence, does not 
 
21G 
 
 217 
 
 DIVISION COURTS. 
 
 \lt< 
 
 atToct the jurisdictidii. Pmhiljition Wfis tliore- 
 forc rofusud. I'l )'.• W iliin i/rr v. McM(tlwn, 'A'2 
 C. I'. 187. 
 
 Htlil, that tho ternia " fieri fiicias " and " war- 
 raiit of uxccution," used in tlie Division Courts 
 Act, aie couvertiljli; terms. Miirjic v. HiuUtr, , 
 1'. H. 149.— t'anieron. 
 
 11 r. INIKHI'I.EADKI!. 
 
 There is no riglit of appeal from the decision 
 of the Judge in an interpleader suit in a Division 
 Court, even when the amount in disimtu exceeds 
 r*10(». /" AV Turin r v. Iiiijh rial Utnik aj Canuda, 
 9 I'. W. 19. —Ostler. • 
 
 Held, that the term "execution creditors,' 
 used in see. 11 of the Inter|ileailer Act, taken in 
 eonuection with sec. 12, includes parties holding 
 executions in Division Courts, who are therefore 
 proper parties to, and should l)e called ui)ou in 
 an interpleader .application hy a sheriff. Mtirjii' 
 V. Ihiiilfr, !) 1'. U. 14!).- Cameron. 
 
 Tlie plaintitr, a Division Court hailifT, liaving 
 seized a (|uantity of wlieat under a warrant of 
 execution agamst one I', which the defendant 
 claimed, an mterpleadersunnuons issued, and on 
 it.s retuin was ailjourned with leave to the de- 
 fendant to file his claim in liftecii il.iys. After- 
 wards the ease came up for Hnal hearing, when 
 the Judge made this order, " thi! cl.iimant not 
 having put in his claim or coniplii.'d with the 
 order aliove made is barred, and is ordered to pay 
 the costs in tifteen days." The plaintilf, as such 
 l»ailitt', thereu])on brought tliis action to recover 
 the wlieat, which the defendant had obtained 
 jKissession of pending the summons : - Held, (Ui 
 appeal, at inning the decision of the County 
 <.'ourt -fudge, that the ininuto so made by the 
 judge in the interpleader issue w.is equivalent to 
 Stalin;^ that the claim was dismi.sscil, and w.as 
 tii:,d and conclusive upon the defendant, .and 
 that he could not be heard to say that the bailill' 
 had not seized the wheat. Ilttiitcr v. VanMonf, 
 7 A. K. 750. 
 
 IV. Attach mi; NT of Djcui','^. 
 
 A pl.aintifl' in a Division Court, proceeding 
 .against a primary debtor and a garnishee in a 
 Court which would not have jurisdiction against 
 the primary debtor alone, must prove a gar- 
 ni»hal)le debt in the hands of the garnishee ; 
 otherwise, a prohibition will lie. In re Holland 
 V. Wallace, vt al., 8 P. R. 18(5.— Hagarty. 
 
 Seinblo, that money paid to a Division Court 
 clerk for a suitor in a c.iuse is paid in to the use 
 of the suitor, and isg.irnisli d)le. Jpiind 1 1 al. v. 
 Aiidriirx i-l ((/., 4."> i,>. U. 4;{l. I'er I'aiiKiron, ■). 
 It does not beeoine a debt from the l>ivisioii 
 C/onrt clerk to the .suitor till demand made, and 
 so is not garnisliable until then. /li. 
 
 Where the garnishee, wh.i was eleik of the 
 First hivision Court of the county of \'ork, 
 had submiLled liinisclf to the jurisdiction, and 
 had paid the money in liis hands into the Tenth 
 Division Court of the County, from wiiicli latter 
 court the summons issued, and the judge of the 
 Division Couit had acted within hi ; juiisdictiun 
 in detennining wiietlier the garnishee was in- 
 debted to the primary creditor .and whether tlie 
 debt was attaciiable : — Held, that the order of 
 (Jalt, ■!., iliscliarging a sunimous for a prohilii- 
 tion was rigiit ; and a rule nisi to rescind tiie 
 same, and for a writ of prohiliition, was dis- 
 charged. Dolphin r. L.ayton, J.. K. 4 C. 1'. D. 
 130, remarked ujion. /h. 
 
 HeM, aliirming the judgment of Armour, .1., 
 that where a garnishee .Iocs not lile a notice dis- 
 puting the juris<liction of a i>ivision ('ourt with- 
 in tin; time iXMpiired by 43 \'iet. c. S, s, 14, O. , 
 though no (ibjuetion can 1)0 taken to this juris- 
 diction ot the Division Court in that court, the 
 jurisdiction of the High C!ourt of Justii.'e to pro- 
 hibit the ]iioeeediiigs is not ousted. Tlie gar- 
 nishees, though partners, resided in diU'crent 
 l)laccs out of the jurisdiction o{ the I )i vision 
 Court, and but one of them was served. >,"() 
 onler was made dispensing with service on the 
 other. The learned Division Court judge gave 
 judgiuent against both in their .absence. I'er 
 Armour, J. i'he |)rohibition might be supported 
 on this ground al.-,o. H. S. (). c. 47, s. I.'U con- 
 strued. Tiie .Jn<lic.iture Act does not apply to a 
 case of this kind, the proceedings of wliich are 
 specially provided for in the Division Courts Act. 
 Clarion V. Macdonald, 4 O. i{., Q. B. D. ,'110. 
 
 A garnishee m not a 
 meaning of the 11. .S. (). c 
 
 dofondant within the 
 . 47, 8. G2. It). 
 
 Held, reversing the judgment of Cameron, J. , 
 8 1*. K. 374, that a primary creditor can garnish 
 part of a debt due by a third person to the pri- 
 mary debtor for which, us between the primary 
 delitor and the garnishee, a suit could not be 
 maintained in the Division Court by reason of 
 the amount being in excess of the jurisdiction. 
 AV Mead v. Creary, 32 C. P. I. 
 
 Held, also, affirming the judgment of Came- 
 ron, J., that the notice mentioned in s. 14 of 43 
 \ ict. c, 8, Ont., refers only to suits otherwise of 
 the proper competence of the Division Court, but 
 which have been brought in the wrong divi- 
 sion, lb. 
 
 V. Practice. 
 
 A witness i I'a Division Court suit having ad- 
 mitted that lie ua-) the real <lebtor, the plaintilf 
 was allowed, under D. (!. Kule 115 to substitute 
 the witness as a dol'endant and oljtaiii a judgment 
 against him : — Held, on an application for a pro- 
 hibition, that tlie Division Court Judge had the 
 ])ower to do this. In re, lltnncij et al, v. i^cutl, S 
 P. R. 251. --Gait. 
 
 The plaintiff residing within the limits of the 
 Ninth Division Court of VVentworth, sued, in 
 that Court two defendants, who both resided in 
 St. Catharines, on a cause of action which partly 
 arose in St. Catharines. < )ne defendant put in a 
 notice of defence disputing the claim and the 
 jurisdiction of the Court. At tho trial neither 
 defendant appeared, and the Division Court 
 .Judge gave judgment for tlie plaintiff without 
 reipiiring any proof of the claim, in accordance, 
 it was said, with the practice in that county : — 
 Held, that proof of the claim should have been 
 given, and a prohibition was ordereil with costs : 
 Held, also, that an application for a new trial by 
 the defen<lant who had given the notice was no 
 waiver of his riglit to object to the jurisdiction ; 
 and that the other defendant could not prejudice 
 
 
 ..;?, 
 t.-*' 
 
ll'J 
 
 DfVlSlONAL COURT. 
 
 220 
 
 miuli I'if^lit 1)V li.'iviiif,' givtili no notii:i! of dofulicc. i 
 In rv Ki'<\iih'\. SiiIIoii it ul, H V. Jt. HI!?.— Cam- 
 oron. 1 
 
 InnHnit in n I'iviMiou Court uimhi ;i ii('j,'otial)le 
 iiiHtniiiu'iit, when.' the milimions is siicciully '•"• 
 iloiHcd, anil ill ri:ii(laiit ilnci not iliM|nit(: the tlaini, 
 tli(j iilaiiitilV JH iiititlril to (liter jiiil^jiin'iit for tlic I 
 iUiioiiiit claiiiifil, «itlioiit tliii |H'oiliU!tion or liliiif,' 
 of Huili iiiHtiuincnt. //( rr ])riiihii'iiitr v. Clar- 
 Wf/'/f. Hi'. I!. .lOJ.— Ilag.irty. 
 
 Aftur judgimiit in an action in a Division Court 
 of till! ("oiinty of \'i(!toria, the dofi iidant within 
 the fourteen days reijuired hy the ! 'ivisioii Courts 
 .\ct, I!. S. (>.,'(•. 47. s. 107, nioveil, on notice 
 tih'd with tlie ( 'ieri< of th(^ ( 'ourt. for a new trial 
 on tile ^'I'oilMil of tile ijiseovery of fresll evideueu, 
 Imt dill not witliin the fourteen days Ide an alli- 
 ilavit ;is ni|iiircd liy the I )i vision Court link' 14'i. 
 .Vn allidavit was su!is(!f|uently tiled, thi! motion 
 lii'ard, and a new trial },'raiited hy the County 
 < 'niirt .lud^'e. A motion for jirohiliition was ru- 
 fiiscil, the trans^'ressioii of a liule of jir.actieu 
 liirniinj.' no p'oiind for such motion. Fic v. 
 Mi-llhtiKjinj, !) I'. I!. 3-_>!». -Osier. 
 
 The Judicaturu Act and rules in relation to 
 |iioceilure i\r not apply to the Division Courts ; 
 and rule 'XM of the Sui>reiiii! < 'ourt of .ludicature 
 ap]ilius only to the courts to whicli in ttirins it is 
 made applicable, lliiiik of Ottaira v. McLawjIi- 
 /'//, 8 A.l!. i)4:{. 
 
 See H< Mr,i<lv. Crniri/, 32 < '. V. 1, j). 217; 
 Clarb' V. JIaolouatil, 4 (). K. IJIO, i>. 218. 
 
 VI. AlTEAb FUO.M, 
 
 No ease exists for prohlhition to a Division 
 Court, pending an appeal from that Court to the 
 Court of Appeal, under 43 Vict. c. 8, (). Will- 
 If'// V. llVnv/, 9 1'. H. 21(). — ('ameron. 
 
 At tlio trial tho plaintiff elected to take a non- 
 suit, and the judge refused a new trial ; — Held, 
 that plaintitf was entitled to move to set aside 
 the nonsuit, and if refused could appeal there- 
 from. Hank of OU awn v. MrLaiKjhlin, 8 A. \\. 
 .^43. 
 
 See /•(' Turner v. Imperial Dank of Canada, 
 a p. R. 19, p 217. 
 
 VII. JuDfiE. 
 
 Under the authority of the following dcimta- 
 tion: "liellevillo, Unt., 24th July, 1880. 1 
 hereby appoint E. B. Fraliek, Ksii., barrister-at- 
 law, as mv deputy to hold tho Second Division 
 Court of the County of Hastings, on Monday, tho 
 2(ith day of .hily, instant, at tho Town Hall, in 
 the Township of Sidney. T. A. Lazier, junior 
 judge, C H.'' The person therein named tried 
 this case at the time and place appointed, but 
 delivered his judgment, according to a postpone- 
 ment for that purpose, on 2nd August following, 
 at the judge's chambers in Belleville, outside the 
 limits of the second division, but within the coun- 
 ty, without having named a day and hour for do- 
 livery thereof in writing at the clerk's office : — 
 Held, (1) That tho word "judge" in s. 20 of R.S. 
 O., c. 47, includes the junior judge, and that the 
 ileputation was therefore valid. (2)Thatthe proper 
 construction of tho same was, "to hold the Sec- 
 
 ond Division Court of the County of Hastings, to 
 lie liiildeii on .Mniiday," i^<'., "ud that hisappoiiit- 
 metit eontiniied until lie had performed the jiiir- 
 pose for which it was made. (3) That theeflect 
 was to clothe Mr Fraliek with all the powers of 
 the junior jud}.'e during the time of his .iiiiioint- 
 nieiit, wherever he mi^dit be within tho comity. 
 .\iiil the rule was tliercfoit^ made absolute to re- 
 scind the order made by (ialt, J., for a proliibi- 
 
 tion. C.iinei , .1., di-isunting. In He- Ijv'iIh'k \. 
 
 Want, ■{', (,). H. 375. 
 
 As to rij,dit of Provincial Oovernmcnt to ap- 
 point a Division Court .ludge. See In re WUmiii 
 V. McUnin, 2 0. I!. 118, p. 117. 
 
 Vlll. Ci.KUK AMI IDs Si;iir.Tii',s. 
 
 Ktrcetof s]iecial arrangenu'nt maiU^ with Clerk 
 as to fees. Set! Vir/uria Mntnal Fire Inmrancc 
 Co. V Davidmn, at at, 3 (). it. 378. 
 
 1\. BAIt.tKKS. 
 
 Observations on the impropriety of Division 
 Court Bailitl's canvassing voters during an elec- 
 tion. Sorlh VlHoria Elniioii — damiron v. 
 Macli-nnan, 1 H. E. C. 012.— Morrison. 
 
 Notice of action to Bailiir. See llannn v. 
 JolinMoii, 3 O. II. 100, pp. 4, 5. 
 
 X. Division Couiit Bonds. 
 
 .All Division Court bonds made before 1st July, 
 18(i9, are ufl'cctually released by 31! Vict. c. (i, s. 
 5, Out., as to liabilities incurred thereunder both 
 lieforc and .since that date. ]{<• Franklin, SV. II. 
 470.— Blake. 
 
 I, 
 II. 
 
 DIVISIONAL COURT. 
 
 Al'I-F.AI.S TO, 220. 
 
 Ari'KAi.s Ekom, 221. 
 
 I. Appeals to. 
 
 Where a judge in single Court had, before the 
 .ludicature Act, decided applications to (juash a 
 by-law and to set-olT judgments : — Held, that 
 under the Act there couhl be no appeal] to a Di- 
 visional (Jourt. / n re Oalcrno and the C'uri>ora- 
 tion of' the Toiininhip of Jioche.tter and Grant v. 
 Mc Alpine, 4(i t,J. B. 379. 
 
 A Divisional Court has no jurisdiction to en- 
 tertain an appeal from an order of a judge, made 
 in court on motion, except by consent. lie (Ja- 
 lerno, 4(5 Q. B. 379, followed. McTiernan v. 
 Fra»r, 9 P. K. 24(i.— Boyd. Ferguson. 
 
 Kulos 274 and 317, O.J. Act, restrict the juris- 
 diction of the Divisional Court after judgment to 
 cases in which the findings of fact have been un- 
 disputed, and in which it is only sought to mo- 
 dify or set aside the conclusion drawn by the 
 judges therefrom ; but if the appeal is on tho 
 whole case, as to both facts and law, it must be 
 to tho Court of Appeal. Trtule v. Pliaunx Ins. 
 Co., 29 Chy. 426. 
 
lil 
 
 DOWER. 
 
 222 
 
 Altliiiii!,'li tlic ili'(i'(,'n w.iM proiioiiiiccil ))cfc)i'c 1 
 iUr liiilic itiii'i! Act, mill iiii;,'lit Imvii \wvi\ ro- | 
 111 ml iiinli'i' till! fdriniT ]ii'iicti(!i% yet tliK caiiso 1 
 not liaviiii,' lii'i'ii Hi't diiwii to Iki rt'liD.U'il licloro 
 tlio (•(iiiiiiii,' into toi'i'c. Ill' till' Aut, it ciiiild not 
 unclci'tlic |ii'iivi.siiiiiM lit' tli(! Alt rc'si)(!i;tiii{,' |i(jiul- 
 
 ill'^ l)llsilll'HM, In; I'L'llClinl. III. 
 
 MrM, tli.it a hivisimial ( 'oiirt may rovicw tliu 
 a'tidii III' a jiiil;;i' in .sittiii;,' asicl(! a wiitiitra. sa. 
 anil tlif anist tliiiiiiiiiliT, ami also liin action ill 
 III lUiii),' tlic onliT to aricst. Carhri ii//i/ v. IlimU, 
 
 :;(). K., c. I". I). :{si. 
 
 Ilclil. that apiii'lH from tlio MaHtur in Chivm- 
 licrs ai(! govoni il Ky nilo tJT. ami not liy ruk' 
 414, O. .1. Act, wliiilia|)|ilic:< to a|i])cal.s to a Divi- 
 sional < 'oiirt. I^iiii'-iiiii V. Till' ( 'iiiiiiilti. Fiinnrf'n 
 
 iiM. r,,., !» r. I!. i,s:>.— lioyii. 
 
 As to time lor aiijicalin;,' under O. .1. Act, 
 I!mIu414. Sec /fnr.v,,, v. Mihulomlhl, •^'l (J. P. 
 41)7. 
 
 As to sc])iiMti' ajiiicals to f'oiirt of A|)iical and 
 hivisioiial t 'oiirt. Sec /Jali li/ if nl. v. Mcrflimils 
 DLfpnti'li Cii. W '(/., 4 (>. II. 7->;{, [i. ISO. 
 
 Suu ('i)dirtuif V. ISoKcli'i', 8 A. \l. ")."),"), iiij'ru. 
 
 II. .\i'i'i:\i.s KiKiM. 
 
 Where then! Ii.is lieeii a tri.il liy jury in an iii- 
 tir|ileader issue iljici'teil IViiin the Ciianeery Di- 
 vision, an .iii|ilicatioii for a nuw tri.d ninst In; 
 III ide to till.' 1 >iviKioii l ( 'onrt, and not to a sinylc 
 judge, (.'filii V. Chii/i'irl/, <) 1'. It. 4!KS. - Jioyd. 
 
 An action havin^' heeii tried before a jnd<,'e 
 with a jury, the jiidyiiicnt was directed to ho 
 entered liy the juili!(! n|ion the answers to ijues- 
 tioiis pnt hy him to the jury, and the daniagua 
 were assessed liy the jury. The defendants sub- 
 sci[uently moved before the three jud^'cs ol the 
 Divisional Court to set .aside the juilgnient di- 
 rected to bo entered, but tile Divi.sional Court, 
 when giving judgment upon the motion, con- 
 sisted of two judges only, one of them being the 
 judge at the trial : -IhJd, that a court so consti- 
 tuted had by reason of s. '29, sub s. .5 of the .Judi- 
 cature Act, no [lower to give judgment, and there 
 hcing therefore nothing to apjicd from, leave to 
 appeal was refused. Viiclinnir v. Buiiclirr, 8 A. 
 M.55.J. 
 
 DOI'I'.I.KVAMJM. 
 
 StC DiSI'KK.'SS. 
 
 DOMINION I'ATILIAMKNT. 
 
 1. I'owKiw OK — ,SW' Co.s'.sTrriTioNAL Law. 
 
 II. El.KCTION.S TO — ,SVc' I'AUMAMENT. 
 
 DIVORCH. 
 
 Koreign Divoroe— Klloct of on claim for ali- 
 inoiiy. See Oiu'M v. (.'in-.^l, 3 O. II. ,344; Mwjnrii 
 V. Miiijiti-u, 3 O. II. 570. 
 
 DOMICILE. 
 
 See Jonct v. Caiimla Central R. W. Co., 4G Q. 
 B. 250, p. 116. See also Chmd v. GitvM, 3 O. K. 
 344; Carlwrijhtv. lliwls, 3 0.11. 334; Mwjnrii 
 V. Magimi, 3 0. R. 570. 
 
 DOVVKU. 
 
 I. I'uiiirr ro. 
 
 1. Miirlijfi'jii/ Pro/irrli/, '2'2I. 
 
 '_'. ()//i<r r'(M(N, 'Jia 
 
 If. l'"iiiiiKn'' i!i; oi.' DowKii Mv AccucrANCB 
 II ■ i')i';visi.', (lit I5i.>;ri'.sr, 'J'J3. 
 
 III. ArTioNs .\Ni) l'it(iri.;Ki)i.V(js h'tin. 
 
 1. J'lr,t,l!,iii,'2-2r>. 
 
 2. Olli'i' Cnurs, '2'2C,. 
 
 IV. Damacik.h, •.'•27. 
 
 \'. Rllill'i'S iiK I'lliril \Si:i!S \Viri;i!KTUKTlK IS 
 
 Oi'ivrAMUMi l)i)wi;i(, '2'27. 
 VI. Misr|.-,[,i,ANi;ors Casks, 2'JS. 
 
 1. I'ldllT TO. 
 
 1. Miirlijiiijid I'ro/ii'iii). 
 
 II. being iiosse.ised of some lands executed 
 mortgages of them. Home of which were given 
 to secure uiipiid purchase iiKiney, and others to 
 secure the rep.iyment of imuu^y lent to II. The 
 wile of the nioi't^'agor had joined in the mortgages 
 to bar dower. 11. h iviiig died intestate : — llchl, 
 on sale of the l.iiids under decree, directing a sum 
 in gi'oss, in lieu of dower, to be paid to the 
 widow, that she was entitled to dower out of the 
 whole amount realized from the sale, after de- 
 ducting therefrom the amount of the mortgages 
 given by II. to secure uniiaid [uirchaso money, 
 but not of the other nmrtgagea. /{n //opkiiiti ; 
 liarnci v. Jfojd-!>is, 8 I'. R. KiO. — Blake. 
 
 The widow of a mortgagor, the ilefendant in a, 
 mortgage suit, did not prove her claim for dower 
 on the reference before the Master, as it was not 
 then certain that the rights of this mortgagee 
 would be fully [irotccted, and she was not found 
 an incumbrancer by the rojiort. Uy c.>nscnt of 
 all parties ;i sale was had, and the purchaser paid 
 ten per cent, of the purchase money down, but 
 aubseijuently applied for and obtained from the 
 I Referee an order dispensing with the payment of 
 the purchase money into ( !ourt, and vesting the 
 estate in the purchaser. The widow opposed the 
 granting of this order, claiming to be .illowed in 
 to prove her claim for dower, but without avail. 
 On appeal, I'roudfoot, V.C, allowed the appeal, 
 and reversed the Referee's order, but withcmt 
 costs, as the dilatory eonduot of the widow had 
 invited discussion. Ifi/ilc v. liarlon, 8 P. R. 
 205. — Taylor, /?';/(')r(?.— Proudfoot. 
 
 The defendant, a judgment debtor being the 
 owner of lands aubjoot to mortgages in which his 
 wife had joined, sold the same, and allowed her 
 to receive a part of the purchase money for her 
 dower. On an application for a ca sa : — Held, 
 that she was not entitled to anything for dower, 
 and that the 42 Vict., e. 22, s. 2, O., does not 
 apply to a case of voluntary sale by a husband. 
 ^55.- " " 
 
 r •> 
 
 4 ' 
 
 Valm-.rt v. Black, 8 P. R. 255.— Gait. 
 See Reid v. RM. 29 Cliy. 372, p. 223. 
 
223 
 
 UUWKH. 
 
 l'-'4 
 
 
 '2. (Hill r Cii.ii/i, 
 
 Tlic niiici'.il nili) a» lii'twfcn i\ tuniiiit fur litV 
 and till- ri iiiniiiili'iiii;in in rc.s|i(it nt a iliai;;i' 
 uiiiiii an tht.itc, JM, tliat tlu! tiii.iiit fur life must 
 k< i|) (Inuii tlir iiitcrc.tt (HI xiicli i-li,u|;i', •■iiid the 
 duty i>t the I'l iiialiidri'iiian is t<> |ia.V the |ii iiK ipaf 
 TlilH iidi- w:i> apl'liid «h(i( a \\i(hiw il.diiiid to 
 have ihiW'i- (Hit uf lur hiisli.iiid'.s istntc, ^^ilil•il 
 nt tin time nf licr inarriap' was .Muhjict. to cfrtaiii 
 IfgaciiM and a ninit^^a^r. in inclrrHH e to an 
 annuity nivin JLir liy his «iii; >.lii' hiinu hi hi 
 iMiiindto pay iin( third nf thi; intcnst <in tlicsc 
 clainin until th^y htcaini' payaldr, alter whiuh 
 the i( niainihiiiiiiii nin>t. pay all llie inteie.st at 
 well UH the iirineipal thereiif. Itiidv. Ili'nl, ".".) 
 C'liy. :{7'-', 
 
 When a lui.-.haiid died entitled to the reverBJon 
 in fee in eertain lamls expeetant on a life estate 
 therein : lit Id, tliil dower con Id not he elainir<l 
 therein, for that the hii.shand had ni'Ver li' en 
 Seized ilnring ro\ ertme of an estate of iidii ritanee 
 in possession. l.iUili v. Mr/.i lliin, 2 if. !!.,(', 
 
 V. I). r..s7. 
 
 See also I'l/n'l v. MrKn if iil, 'i < >. 1!. ini. 
 
 II. FdKFr.irruK oi' |)o\vkh iiy Aiceitam i; ok 
 lM;visK oil Hj-.i^ikst. 
 
 A testa' ir devisitl and lje(|iii alin <1 to his wife, 
 during widowhood, all his household ;;(Mids, fur- 
 niture, &!'., together w ii,!i an annuity of twenty 
 d(dlar», ami ahii the free use, duriliy the same 
 time, of the Immesttad ht, together with the 
 several dwt^Ilinvs and other huildings thereon. 
 Two l)an'els ol h.v. I'eal estate in.' ih'visrd to his 
 two siiis, upon which lie placed eertain ti,\ed 
 valuations — found hy the AhLSter to ho the full 
 values and directed one of the sons to jiay three 
 fifths of the interest eoni|i\lted on the valuation 
 of his lot to the three daughters of the testator 
 for life, the other son to ]i.iy interest on the 
 valuation of his lot to the executors during the 
 life or w idowhood of his mother. 'The homestead 
 and the other portions of his real, as also his per- 
 sonal estate, the testator dir'^eteil to he sold and 
 the proceeds <livided at the death or iiiarriaL'o of 
 the widow. — Held, that she was not forced to 
 elect, anil that the direction to sell the lands was 
 not suflicient to put her to her election. JkilMiiii 
 V. Beiliiliiii, 27 L'hy. 41. 
 
 The testator 1>y his w ill, executed in 1840, gave 
 the annual income of all his real estate to his wife, 
 for the siipjiort of herself and children durmg 
 widowhood ; and after her death or marriage, jvnd 
 the youngest child attaining majority, the pro- 
 perty was to be divided. He appointed his widow 
 and eldest son executrix and executor, both of 
 whom continued to reside, with the other mem- 
 bers of the family, in the homestead, and she, 
 with the consent of her son, received tlie rents of 
 the realty, which she applied in the support of 
 the children for more than tw enty years after 
 the death of the testator, without having hiid 
 dower assigned to her, or having made any de- 
 mand therefor. Some of the lands had been 
 acquired by the testator after the execution of 
 the will, and as to them there was an intestacy. 
 A bill having been tiled by one of the iieirs, seek- 
 ing an account of rents received by the w idow, 
 and a partition of descended lands. — Held, on 
 rehearing (in thisufhrniing the order of Proudfoot, 
 
 life 
 his 
 his 
 his 
 the 
 the 
 and in i.a-'e ( f 
 
 \'. ('., I'.'p (liy. '2'Xi.} that the willow was not 
 bound to ehct lictwiiii the in'ovision iiiadc for 
 her by the wdlund her dower, and that iiotw illi- 
 staniliijg the lapse of time she wan enlith'd, out 
 ol the duvi.>c il land to retain onethird ol the rents 
 ill respect ol past and future dower ; liut that, 
 as to thedesc ended lands, the remedy was barred 
 by tlii^ ."statute of Limitations ; that tln^ claim 
 made by the wid(iW in hcranswir. and awarded 
 her by tin; decree, was a piiiMiiiif^ the remedy 
 so as to bring the c.ise w ithiii the .-statute, although 
 as to till! rents of these lands leciivcd, tl^e^^idow 
 was entitled to set oil' against the claim made liy 
 the plainliir. the iimoiint which slii.' was entitled 
 to have received then out as dow ress. (I'loud- 
 foot, \. ('., dissenting, who considered the 
 widow entitled to the same relief in nsiiect of 
 these nsof the lands devi.-ied,) Ldiillim- \. Jinl:!", 
 •27 thy, 101. 
 
 The testator bei|ueathed to his widow for 
 an annuity of i:^ll(», ii.iyable liy his son J., 
 hi'irs, itc, together with .all and sin;,'ular 
 lioiisi hold fiiniituie, tte., and in the event ol 
 widow remaining in the lUvi llinglioiise on 
 prenii.'-es alter Ins decease, she was to liavi' 
 free use of cerlain rooiiis therein 
 sickness wliilr there this son was to see that she 
 had jii'iiper medical ,'itt(:iidanee and nulling. 
 This annuity as well as the other beijiiests the 
 testator chargid upon the lands in i|iicstion, and 
 devised the same so liui'theiied to his said son, 
 the defelidaiit. 'I'he widow liled her bill lor 
 payment of the iiiuuiity' alone, not elaimiiiL; any 
 lien on the land in respect of the charges created 
 in her lavour liy the will or for dower. The 
 usual deeiee for (layiiieiit or in default sale was 
 made, with refi leiice to the Master at Hamil- 
 ton, under which the, land was sold, without any 
 reference to dower or the ollu r charges, and the 
 purchase moiiiy was ]iaid into ('oiiit. In the 
 Ma.stcr's ollice the wido\v made no claim, either 
 for dower or in n ^pect of the other charges ; but 
 she afterwards piescnted a petition to h.ive it 
 declared that she was entitled to dower in the 
 land and to eonniensation in respect of the bc- 
 ([Ucsts above set out, and prayed that a suiii in 
 gross out of the money in Court should lie jiaiil 
 to lur in lieu of dower, and aprojiersum allowed 
 by way of compensation forthoother beiielits.- 
 lield, following Murphy ?'. Murphy, '2;) Chy. .SI. 
 that the widow was not init to her election by the 
 will, and that she was entitled to have a proper 
 sum ]iaid to her for dower out of the purchase 
 money in Cinirt ; but that by her acijuiescing in 
 the sale of the. land, and by her laches, she had 
 waived her right to any compensation for the 
 loss of the benefits bequeathed to her. Iiii)li >/ v. 
 li'i/>lej/, 28 Chy. GIO. 
 
 A testator devised to his widow his " liouse 
 anil orchard for a home for herself and children 
 as long as she may live," and to his son Duiicm 
 all his title and interest in the farm lot, anil all 
 implements thereon, " at the death of my wife 
 as aforesaid, on condition that he shall provide 
 for her board and maintenance, he, my son I 'un- 
 can, holding possession of the land from the time 
 of my decease, subject to the ))roviso aforesaid :" — 
 Held, That the widow was put to her election 
 between her dower and the provision made for 
 her by the will ; the latter forming a charge 
 upon the lands devised. McLelhm v. McLvllini, 
 29 Chy. 1. 
 
1225 
 
 DOWKU. 
 
 220 
 
 A tcstfttor (l(iviH(!(l all liin roiil and iicrsoiial ch 
 tftto ''MiBtcL's to HL'll H'.c Tcalty mill ^I't ill tlu; 
 pi'ii the ihoocoiIh of wliic'h, iiltcr pay- 
 
 iiici. .olitH, tlu'y wuro to iiivcHl in tlit'ir naiiiuN 
 ii])i>n trust to pay tlio aniiiiiil incoinu to liiH two 
 Bdiin in e(pial moictius, tiicy niaiiitaiiiinj,' tlii'ir 
 mother during lifo ; and aftiT thu duath of cooh 
 of tin' sons I lie tnistces to hold one moiety of the 
 tniHt inoiieyfi upon trimt to |iay and divide and 
 traimfer the siiiiio tMjnally lii'twn'ii and ain Jiigst 
 Hiich of his children as slionhl l>e living at his 
 deouase, and tiie issue thou liviiij^ of such child- 
 reu as shniilil he then dead, as teiianU in coni- 
 nioii in a coiiibu of distrihiition, at'cordiiiK to the 
 Htocks, and not to the iiunil)er of individual (d)- 
 jects, and so that the issue of any ileueaBed child 
 should take, hy way of substitution, amongst 
 thoin, the share or respective shnres only, which 
 tiie deceased parent or parents would, if living, 
 have taken :— Held, that the widow was not 
 put to her election, hut was entitled to dower as 
 well as the provision made for her i)y the will : 
 and i*^ 'leing alleged that the sons had not provi- 
 ded ' ir maintenance, a ileclaration was made 
 thn vas entitled to such maintenance, and 
 
 u r was directed t(» find what would be 
 
 a pro^>,. sum for that purjioso. McGamj v. 
 Thomimou, 29 t'hy. 287. 
 
 A testator, amongst other thinga, made cer- 
 tain bequests in favour of his widow, and direct- 
 ed that his farm, the only real estate ho possess- 
 ed, should he leased to two of his throe brothers 
 named as executors until such time as his ne- 
 pliew and son attained twenty-one : — Held, that, 
 under these circumstances, the widow was bound 
 to elect between her dower and the benefits given 
 hy the will. Itoihj v. Rody, 29 Cliy. 324. 
 
 The testator made a provision in favour of his 
 widow, much more advantageous to her than her 
 interest as dowress, and which was expressly 
 given in lieu of dower, and given during widow- 
 hood. The will was acted upon for two years, 
 when the widow married a brother of her de- 
 ceased husband, and thereupon filed a bill alleg- 
 ing that she had accepted the provisions and be- 
 quests made for and given to her by the will in 
 ignorance of her right to dower, had slic elected 
 to take dower ; and in lior evidence she swore 
 that she had been ignorant of such right until 
 advised in respect thereof in 1880, shortly before 
 her second marriage, and she now sought to have 
 dower assigned to her :— Held, that the rule " Ig- 
 norantia juris nemiuem excusat" applied, and 
 the bill was dismissed, with costs. Gillam v. 
 Uillam, 29 Chy. 370. 
 
 III. Actions and Proceedings for. 
 
 1. PleadiiK/. 
 
 To a summons under "The Dower Procedure 
 Act," R. S. 0. c, 65, with the statutory notice 
 endorsed under s. 10, claiming damages, the de- 
 fendant entered an appearance under s. 20, with 
 an acknowledgment that he was tenant of the 
 freehold, and consent that plaintifll' might have 
 judgment for her dower, and take the necessary 
 proceedings to have the same assigned to her. 
 The plaintiflF then served a declaration claiming 
 dower as well aa damages for its detention :— 
 Held, that the declaration was bad, and must be 
 set aside, in claiming dower when her right to it 
 was admitted. Quasre, whether such damages 
 
 1« 
 
 luigiit not be recovered on a record properly 
 fr.imed. Linf(.ot v. Uunoombe, 21 C. P. 484, re- 
 marked upon. Harvey v. i'airnall, 31 C. P. 
 239. 
 
 In a bill aeoking to obtain the benefit of a 
 
 sale of land freiMl trom the dower of the widow 
 of the decased owner, it was alleged that he had 
 ilied at such a tiiin s would, if true, bar the 
 widow's right t) I', "er, aid submitted "that 
 the defonilaiit l^j. li. (the wnluw) is not entitled 
 to dower :" — llehl, asnil, :ient allegation that the 
 ilefciidant's right to ilower was barred by the 
 statute, though it omitted to state that this was 
 the legal result of any particular statute. Banks 
 V. Mlamy, 27 Chy. 342. 
 
 See liyan v. Fiah, 4 0. R. 335, p. 227. 
 
 2. Other Cases. 
 
 A plaintiflf in an action for dower recovered 
 judgment, but before the execution of the writ 
 of as.signment of dower, and after its issue, the 
 tenant of the freehoUl died, having devised the 
 land in question to the present defendant ; — Held, 
 that the plaintiff must proeeed against the devisee 
 by scire facia.*, and not i)\ .suggestion or revivor. 
 JJaviii V. Jh'iinUon, 8 P. K. 7. — Hagarty. 
 
 The widow and heir joined in creatine a 
 term in tho descended lands lor ten years, ana in 
 the lease it was stated that it had been mutually 
 agreed between tho parties thereto that one-third 
 ot the rent should be p.aid to the widow in each 
 year, which was accordingly done during the 
 currency of the term : — Held, that this had the 
 effect 01 preventing the lapse of time being set 
 up as a bar under the statute to the widow's 
 right to dower. Fraser v. Ounn, 27 Chy. 63. 
 
 The demandant, who was a stranger to the life 
 estate, was held not entitled to set up that there 
 had been a forfeiture thereof by non-payment of 
 rent or other breach of covenant. Leitch v. Mc- 
 Lellan, 2 O. K., C. P. U. 587.— Osier— Affirmed 
 in full court. 
 
 Held, that the presumption of death arising 
 from continued absence of the demandant's hus- 
 band, unheard of for seven years, is sufficient to 
 sustain an action of dower as against the objection 
 that he is still living. Oiks v. Morrow, 1 O. R., 
 Q. B. I). 527. 
 
 The report in an action of dower was filed on 
 29th May, during the Easter Sittings of the 
 court. A motion was made against it within 
 the first four days of the Michaelmas Sittings :— 
 Held, thivt the motion was too late, for it should 
 have been made to a vacation judge under Rules 
 482 and 483. Oiles v. Morrow. 4 O. R., Q. B. D. 
 G49. 
 
 In an action for dower and damages for deten> 
 tion of dower, defendants appeared under R. S. 
 O. c. 55, s. 20, and filed acknowledgment of 
 tenancy, consent to dower, &c. PlaiutifTs soli- 
 citor thereupon entered judgment of seisin, is- 
 sued writ of assignment of dower, and proceeded 
 for damages. The judgment of seisin was held 
 at the hearing to be final, and to preclude any 
 proceeding for damages, but leave was given to 
 plaintiff to move in Chambers to vacate it. Tho 
 master in Chambers made an order vacating the 
 ' judgment :— Held, on appeal, that the order was 
 
 tc 
 
227 
 
 EJECTMENT. 
 
 228 
 
 f •■: : 
 
 one in the discretion of tlie master, wbicli was 
 properly exercised under tlie circumstances in 
 tlie plaintitFa favour, especially as judgment had 
 been signed througli iiiist:\ki; of licr solicitor. 
 I{yan v. Fi.ih et al., 9 l*. K. 458. -I'roudfoot. 
 
 IV. Damages. 
 
 Quaere, whether damages for detention of 
 dower, or for arrears of dower, can be recovered 
 under the Dower Act. Oiles v. Morrow, 1 O. 11., 
 Q. B. D. 527. 
 
 R. brought an action for dower against F., the 
 tenant of tlie freehold, who claimed title through 
 the devisee of her husband, and endorsed her 
 writ with a claim for damages for detention of 
 dower. F. appeared and admitted his tenancy, 
 and R.'b right to dower: — Held, that R. might, 
 nevertheless, go on and recover damages for the 
 detention from and after demand for dower made 
 by her on F. L'yan v. Fish et al., 4 0. R., Chy. 
 D. 335. 
 
 Held, also, that R. S. O. c. 55, has not 
 taken away or diminished the right of a dow- 
 resB to damages as veil for mesne profits, as 
 for detention, against all persons and in all cases 
 where they were recoverable before August 10th, 
 1850. Ih. 
 
 Held, further, that, at all events, since the 0. 
 J. Act, s. 17, sub-s. 10, a tenant of the freehold 
 claiming, as in this case, may plead that he has 
 at all times, since he became such tenant, been 
 ready and willing to render the plaintifif her 
 dower, and if the plaintiff desires to avoid that 
 plea she should reply a demand and refusal. lb. 
 
 Quaere, whether if such demard and refusal be 
 pleaded and proved, damages can be computed 
 against such a tenant from the death of the hus- 
 band or only from the date of the plaintiff's 
 demarid for dower. lb. 
 
 See Hurvey v. Pcnrsall, 31 C. P. 239, p. 226; 
 Byan v. Ftoh et al., 9 P. R. 458, supra. 
 
 V. Rights of Puechaser.s where there is 
 Odtstandino Dower. 
 
 At a sale under a decree on the 25th March, 
 1879, A. purchased the land in question. On 
 the 19th April, 1879, he transferred his interest 
 to W., and on the 26th April, one H. purchased 
 and took an assignment of the dower of one S. 
 in the land. On the 16th February, 1880, A. 
 applied to be relieved from the contract to pur- 
 chase on the ground of the outstanding dower. 
 The evidence shewed that S. had agreed with 
 the heir-at-law to accept a gross sum in lieu of 
 her dower, that W. really purchased the dower, 
 but took the assignment m H. 's name, and that 
 this application though in A. 's name, was really 
 made by W. :— Held, that no relief could be 
 granted, the applicant having himself created 
 the obstacle by means of which he sought to pre- 
 vent the sale being carried out. Fraser v. Ounn, 
 8 P. R. 278.— Spragge. 
 
 An owner of real estate who alone enters into 
 an agreement to sell will be required to procure 
 a bar of his wife's dower or abate the purchase 
 money in the tvent of her refusal. VanNorman 
 
 Beaupre, 5 Chy. 599, Longhead v. Stubbi, 27 
 
 On a sale of land by an infant under R. S. 0. 
 c. 40, as. 75-83, an order was made under 44 
 Vict. c. 14, s. 5, Out., barring the dower of the 
 infant's mother who was a lunatic and contined 
 in'an asylum. J{eColthart,9P.R.35G. — Ferguson. 
 
 VI. Miscellaneous Cases. 
 
 In ejectment the defendant was allowed to set 
 up a counter claim for dower out of the lands in 
 question. Remarks as to the form of decree in 
 such a case. Glass v. Olass, 9 P. R. 14. — Osier. 
 
 Held, that the statute 42 Vict. c. 22, 0., " An 
 Act to amend the law of dower," does not apply 
 to mortgages made before it was passed. Mar- 
 lindale v. Clarkson, 6 A. R. 1. 
 
 See Re Morse, 8 P. R. 475, p. 321 ; Lavin v. 
 Lavin, 2 0. R. 187. p. 326. 
 
 DRAINS AND DRAINAGE. 
 
 See Municipal Corporations — Water and 
 Water Courses. 
 
 EASEMENT. 
 
 I. Right to by Prescription— 5'e« Limi- 
 tation OF Actions and Suits. 
 
 II. Lateral Support— -Sec Lateral Sup- 
 port. 
 
 III. Lights.— (S'ee Light. 
 
 IV. Right of Way.— /See Wat. 
 
 As to the right of a grantee of land on the 
 bank of a river where free access to the public 
 is reserved to complain of injury caused by the 
 penning back of the water of the river by a mill 
 owner. See Hawkins v. Mahaffy, 26 Chy. 326. 
 
 See Ross v. Hunter, 7 S. C. R. 289, p. 702. 
 
 Ch y. 387. 
 
 ECCLESIASTICAL CORPORATIONS. 
 See Church. 
 
 I. 
 IL 
 
 EJECTMENT. 
 Plaintiff's Title, 229. 
 By and Against Particular Prrsons. 
 \. Mortgagees, 229. 
 2. Infants, 230. 
 III. Practice and Procedure. 
 
 1. Writ oj Summons. 
 
 (a) Issue of Writ, 230. 
 
 (b) Service, 230. 
 
 2. Adding and Striking out Parties, 2.S0. 
 
 3. Statement of Claim, 230. 
 
 4. Counter Claim, 231 . 
 
 5. E(/tntable Defences, 231. 
 
 6. Judgment, 231. 
 
229 
 
 EJECTMENT. 
 
 230 
 
 21 : Lavin v. 
 
 iATERAL SUF- 
 
 rLAR PrBSONS. 
 
 IV'. Mesne Pkofits, 231. 
 
 V. Reference t? Determine Allowance 
 FOR Improvements— 5ec Improve- 
 ments ON Land. 
 
 I. Plaintiff's Title. 
 
 The plaintifif was assignee in insolvency of H., 
 wlio bought from the purchaser at the sheriff's 
 sale. H. leased to T. anil put him in possession, 
 and had some small buildings put on the land. 
 Subsequently, the defendant 0. made untrue re- 
 presentations to T., which induced him to quit 
 possession, whereupon O. went in and occupied, 
 claiming under defendant W., who, he alleged, 
 had an mterest in the land. W. by his answer 
 adopted 0. 's possession and claimed under con- 
 veyance from the Crown, but failed to prove his 
 title ;— Held, following Doe Johnson v. Bay tup, 
 ,S A. & E. 188, that the possession so fraudulently 
 obtained by 0. did not ?ntitle him to put the 
 plaintifif upon proof of his tu'.e. Nelleav. White, 
 29 Chy. 338. Affirmed by Supreme Court 23rd 
 June, 1884. 
 
 Where land had been taken by the Great Wes- 
 tern R. W. Co. for the purposes of their railway 
 under 9 Vict. c. 31, s. 30, and 16 Vict. c. 99, 
 the company in ejectment brought by them can 
 rely on the title acquired thereby, and are not 
 driven to prove strictly the title of their grantors. 
 Great We^ttrn 11. W. Co. v. Lutz, 32 C. P. 166. 
 
 The defendant leased to his father the lands 
 in question in this action for life, to work and 
 enjoy the same, but that should the father in 
 his later years become incapable of taking charge 
 of the place as it should be by good husbandry, 
 then and in such case the defendant was to be 
 at liberty to govern the lands as seemed best to 
 him. And in the event of the father becoming 
 inca')able of manual labour he was to be sup- 
 ported by the son, and it was agreed tliat, sub- 
 ject to the son's rights, the father was entitled 
 to peaceableland quiet possession. The father be- 
 came incapable of taking proper care of the plac 3, 
 and in consequence the defendant re-entered 
 and worked the farm. Subsequently thereto the 
 interest of the father was sold by the sheriflf to 
 the plaintiff, who brought ejectment. The jury 
 having found the facts as above stated : — Held, 
 (reversing the judgment of the court below, 31 
 C. P. 417.) that the defendant had, according to 
 the terms of the lease, the right to possession, 
 and that the plaintifif must therefore fail in his 
 action. Turle]/ v. Benedict et al., 7 A. R. .300. 
 
 SoaOreeuahielday. Bradford, 28 Chy. 299, p. 428. 
 
 II. By and Against Particular Persons. 
 
 1. Mortgagees, 
 
 A mortgagee proceeded in ejectment against a 
 mortgagor, and afterwards filed a bill in Chan- 
 cery against him for a sale :— Held, that as the 
 mortgagee v,ould, since the Administration of 
 Justice Act, R. S. 0. c. 49, obtain in the Chan- 
 cery suit all the remedies he could obtain in the 
 ejectment suit, the latter should be stayed for- 
 ever. Hay v. McArthur, 8 P. R. 321. 
 
 See In re Flint and Jetlett, 8 P. R. 361, p. 41 ; 
 Wentem Canada Loan and Savings Co, v. Dunn, 9 
 P. R. 687, p. 230. 
 
 2. Infanta. 
 
 In an action of ejectment by mortgagees, on 
 the application of the infant defendants, an order 
 for immediate possession and sale of the mort- 
 gaged premises was made, with a reference to 
 the master to take the usual accounts ; but $80 
 was ordered to be paid into court to meet the 
 expenses of the sale. Western Canada Loan and 
 Savings Co. v. Dtinu, 9 P. R. 587, reversing S. C, 
 lb. 490.— Armour. 
 
 III. Practice and Procedure. 
 
 1. Writ vf Sttmmons, 
 
 (a) Issue of Writ. 
 
 A writ in ejectment for the recovery of the 
 possession of land may issue out of the proper 
 office in any county, without reference to the 
 locality of the land. Canada Permanent Loan 
 and Savings Co, v. Foley, 9 P. R. 273.— Dalton, 
 Master. 
 
 (b) Service. 
 
 The writ of summons in ejectment was served 
 upon defendant's wife after he had left the 
 country. An order to sign judgment against the 
 husband was granted in default of appearance. 
 Trust and Loan Company v. Jones, 8 P. R. 65. — 
 Dalton, Q. C. 
 
 2. Adding and Striking out Parties, 
 
 An application by defendants in an action of 
 ejectment to have their names struck out on the 
 ground *hat they were not in possession at or 
 subsequent to the issue of the writ, and disclaim 
 any interest in the land, is regularly made before 
 appearance, although the application would be 
 entertained after appearance where the justice of 
 the case required it. But where two defendants 
 applied after appearance to have their names 
 struck out, and the court, from the facts, enter- 
 tained a doubt as to the good faith of these de- 
 fendants, the application was dismissed, with 
 costs. Tfie Arqlo-Canadian Mortgage Co, v. 
 Cotter et al, 8 P. P. 111.— Dalton, Q. C. 
 
 In an action of ejectment and for mesne profits, 
 the defendant 0. was tenant in possession, and 
 had two months after the service of the writ upon 
 him, paid rent to his co-defendant, his landlord. 
 An application by O. to have his name struck 
 out as a party to the suit, he having gone out of 
 possession on the expiration of his lease, was re- 
 fused with costs. Johnston v. Oliver, 9 P. R. 
 353.— Dalton, Master. 
 
 See McCarthy v. Arbuckle, 31 C. P. 48, p. 617. 
 
 3. Statement of Claim, 
 
 A writ in ejectment was served on I5th 
 August, 1881, and an appearance entered after 
 the 22nd of the same month : — Held, that plain- 
 tiff need not file a statement of claim, under the 
 new practice, and that a notice of trial served 
 immediately after the entry of the appearance 
 was regular, the cause being then at issue. Laid- 
 law V Ashhaugh, 9 P. R. 6. — Dalton, Master. 
 
 Held, that the mention of the date of iisue of 
 a writ of ejectment in a statement of claim was 
 
 
23! 
 
 ESCHEAT. 
 
 232 
 
 essential. But leave was giveu to ameud on ])ay- 
 nient of costs. Scult v. Crthjhtun, 9 V. li. 253. — 
 Dalton, Manfer. 
 
 4. Counter Claim. 
 
 In ejectment the defendant was allowed to set 
 up a counter claim for dower^out of tlie lands in 
 (juestion. Kcniarks as to the form of decree in 
 such a case. O'lasnv. OVus.s, 9,1'. K. 14. — Osier. 
 
 In an action for the recovery of !an(> and for 
 mesne profits, a counter claim for damages for 
 illegal distress against the plaintiti'and his bailifif 
 who executed the distress was held good. Dock- 
 stttdifr V. Pfiipjis, 9 I'. 11. 204.— Dalton, Mimter. 
 
 5. E(piitahli: Defences. 
 
 In ejectment where equitable issues are raised 
 under R. S. O. c. 50, a. 257, the issues must be 
 tried without a jury. Jiryaii v. Mitchell, 8 I'. 11. 
 302.— Dalton, Q. C— Armour. 
 
 Per Gwynne, J. : — That under the practice 
 which prevailed in England in 1870, which prac- 
 tice was in force in Manitoba under 38 Vict. c. 
 12, at the time of the bringing of this suit, an 
 equitable defence could not t^d set up in an action 
 of ejectment. Farmer v. Livingntone, 5 S. G. R. 
 221. 
 
 6. JuiUjment. 
 
 See Trust and Loan Co. v. Junes 8 P. R. 65, 
 p. 230 ; Trust and Loan Co. v. Hill, 9 P. R. 8, 
 p. 393. 
 
 IV. Mesne Pbofit.s. 
 
 Qutere as to when mesne profits may now be 
 recovered in ejectment. McCarthy v. Arbuckle, 
 31 C. P. 405. 
 
 See Dockstader ,. Phipps, 9 P. R. 204, supra ; 
 Johnston v. Oliver, 9 P. R. 353, p. 230. 
 
 ELECTION. 
 I. Of Directors— /See Corporations. 
 II. Widow's Elkction— See Dower. 
 
 III. Of Members of Municipal Councils — 
 
 5ee Municipal Corporations. 
 
 IV. Of Members of Parliament or Leois- 
 
 lative Assembly — See Parlia- 
 mentary Elections. 
 
 V. Of School Trustees — See 
 Schools. 
 
 VI. Under Wills— 6'ee Will. 
 
 Public 
 
 Where land was advertised for sale under a 
 decree, and the purchaser, the owner af the ad- 
 
 J'oining lot, who had also been in possession by 
 us 8on of the advertised premises, tendered for 
 them, knowing that the lands comprised fewer 
 acrei than the advertisement stated, and intend- 
 ing to seek an abatement after the purchase was 
 complete, and a aubsequeut inoumbraaoer offered 
 
 to give tlic siune price for them as the purchaser : 
 — Held, that the petitioner should be put to hig 
 election, either to take the land without abate- 
 ment of the purchase money, or let it go to the 
 subse(iuent incumbrancer. Carmichael v. Ferris, 
 8 P. R. 289.— Stephens, Jte/eree.—Blakn. 
 
 Where the plaintiff filed his bill seeking tc 
 (juash a certain municipal by-law, passed to open 
 a road, and also an award made tliereunder : — 
 Held, that there was nothing inconsistent in this, 
 and the plaintifl' was not bound to elect between 
 attacking the by-law and attacking the award. 
 Where, however, under such circumstances, the 
 plaintitf, being called on by the court to elect, 
 had elected to attack the award, and consented 
 to a decree setting it aside, and ordering a new 
 arbitration, which arbitration he had prosecuted 
 until another award was made, which he had 
 not moved against within the time allowed there- 
 for : — Held, he could not after -ds complain 
 of having been forced to elect at she hearing. 
 Uardimj v. Corporation of the Township of Car- 
 diff', 2 U. R., Chy. D 329. 
 
 See Macdonald v. Worthimjton, 7 A. R. 631, 
 p. 7C5 ; Cruso v. Bond, 1 O. R. 384, p. 472. 
 
 EMBLEMENTS. 
 See Crops — Landlord and Tenant. 
 
 EMINENT DOMAIN. 
 
 See Municipal Corporations- Railway and 
 Railway Companies. 
 
 Right of tenant to compensation. See In re 
 IVelland Canal Enlanjement — Fitch v. McRae, 29 
 Chy. 139, p. 113. 
 
 ENTAIL. 
 
 See E.STATE. 
 
 EQUITABLE ASSIGNMENT. 
 
 See Chose in Action. 
 
 EQUITABLE PLEAS. 
 See Pleadino. 
 
 ERROR. 
 See Criminal Law. 
 
 ESCHEAT. 
 
 Held, affirming the judgment of Proudfoot, 
 V. C, 26 Chy. 126, that the doctrine of escheats 
 
233 
 
 ESTATE. 
 
 234 
 
 applii's to Ontario ; that the Attorney-General 
 for Ontario is the proper person to represent tlie 
 C:<)\vii and to appropriate the escheat to the uses 
 of the Province ; that the Conrt of Chancery has 
 Jurisdiction in sucli a case ; and that it was 
 p?-oper for the Attorney-General to file a bill in 
 tliu Court of Chancery to enforce the escheat. 
 Allorney-Gcncral of Ontario v. O'RdUij, C A. R. 
 ")7(). See S. C. tsiih iiom. The Attornt'ij-Clencrnl 
 of Ontario v. Mercer, 5 S. C. II. 538 ; 8 App. 
 ■Cas. 7G7, p. 121. 
 
 ESTATE. 
 
 EsTATF, AT Will— .S"*'^ Limitations of 
 Actions and Suits. 
 
 Fob Years— fe Landlord and Tenant. 
 
 Fi)l! LlFK. 
 
 1. GnirraUn, 2.33. 
 
 2. Tcnnnt hij the Curtesij, 2.34. 
 
 3. Doimr — See DowiR. 
 Estate Tail. 
 
 1. Barvin'j, 235. 
 
 Estate in Fee, 235. 
 
 Estate nv Entiretii;s, 235. 
 
 Joint Tenants, 2.35, 
 
 Tenants in Common, 2.36. 
 
 Trust IvsrAi'Es— .S'cc Trusts and Trus- 
 tees. 
 
 Administration of — ^ee Executors 
 AND Administrators. 
 
 Partition of— .S'cb Partition. 
 
 Statute of Distributions — See Distri- 
 bution of Estate. 
 
 15. Devise— /yce Will. 
 
 Of Particular Persons. 
 
 1. Married Women — See DoWER — Hus- 
 
 itAND AND Wife. 
 
 2. JnJ'antif—See Infant. 
 
 3. Lunatics — ,SVe Lunatic. 
 
 4. Tenants— See Landlord and Tenant. 
 
 III. Estate for Life. 
 
 1. (icncrally. 
 
 11. G., being seised in fee, by an instrument 
 purported to lease to his daughters " tliree acres, 
 with the right of way to a well, including an 
 orchard and dwelling house, after the decease of 
 his beloved wife, J.(;.," to hoM to his daughters 
 for and during their lives, or the life of the sur- 
 vivor of them, at the yearly rent of 20c., if 
 demanded. Ten days afterwards lie conveyed 
 m fee to his son \V. G., tiie land of which the 
 tliree acres formed part, the son having actual 
 notice of the agreement between his si.sters .ami 
 H. G. Subseipiently, W. G., conveyed to the 
 plaiutiEF, "subject to the right of (R. G.'s wife 
 and daughters) to occupy the house and three 
 acres during the life of tiiem or the survivor, and 
 the right to and from the well," and subject to 
 
 II. 
 Ill, 
 
 IV. 
 
 V. 
 
 VI. 
 
 VII, 
 
 VIII. 
 
 IX. 
 
 X. 
 
 XI. 
 
 xn. 
 xin. 
 
 XIV. 
 
 a mortgage, which the plaintifT agreed to pay off. 
 To this deed the plaintiff was an executing party. 
 Tlie jilaintiflf brought ejectment against R. G.'s 
 daughters for the three acres : — Held, that the 
 agreement liy which R. G. intended to demise 
 the three acres created a term <at once, the wife 
 of R. G. retaining the right to occupy during 
 her life : Held, also, that the words "subject 
 to,"&c., in the conveyance to the plaintiff, either 
 oper.itcd as an cxce])tion, or, bj' reas(m of the 
 execution of the deed by the plaiiitit^, as a re- 
 grant of the three .icres to her vendor. In either 
 case, therefore, the plaintiff was entitled to 
 succeed. QuaM-e, also, if the deed operated as a 
 re-grant to W.(t., whctlier if the lease were void, 
 as contended, as creating a freehold interest to 
 conimence in futiiro, W. G., having notice of his 
 sisters' claim under it, would not be restrained 
 from disturbing them. Wilson v. Gilmer et aJ., 
 46 Q. B. 545. 
 
 Tlie word "demise" is an effective word to 
 convey an estate of freehold, and is of like import 
 with, and eipiiv.alent to the word "grant." An 
 estate for life was therefore held to be validly 
 created by the words "demise and lease" to 
 E. .M. for life ; and livery of seisin was held un- 
 necessary. Spears v. Miller, .32 0. P. 661. 
 
 A tenant for life is entitled to a partition, and 
 where there is a right to a partition there may be 
 a right to a sale as the Court may determine. 
 Lalvr V. Lalor, 9 P. li. 455. — Proudfoot. 
 
 Held that a lease for life to a husband and wife 
 makes them tenants by entireties, so that the 
 whole accrues to the survivor. Leitch v. Mc- 
 Lellan, 2 0. R., C. P. D. 587. 
 
 J. T. S. devised certain lands to M. H. for life, 
 aiK' afterwards to any child of M. H. who might 
 survive her, in fee. M. H. had one child, aged 
 ten, when she petitioned under 19-20 Vict., e. 
 1 20, ( Imp. ) claiming to be allowed for expenditure 
 made by her upon two houses on the land for 
 much needed repairs and lasting improvements, 
 and also for SlOO, paid to a tenant for improve- 
 ments made by him under a promise from the 
 testator that he should l)e paid for them ; and 
 praying for a sale, or power to lease : — Held, that 
 M. H. might be reimbursed the l?100, from the 
 testator's general estate, as this appeared to have 
 been a debt due by the testator ; but neither this 
 nor clie other expenditure could be charged on 
 the land : Held, further, it appearing that there 
 was no means from the income of the property 
 of juitting it into a sufficiently remunerative 
 condition to support M. H., and her child, it was 
 a projier case for the sale or leasing of the estate, 
 with a right to build. The repaii-s of a tenant 
 for life, however substantial .and lasting, are his 
 own voluntary act, and do not arise from any 
 obligations, and he cannot charge the inheritance 
 with them. l{e Smith's Trusts, 4 O. R., Chy. D, 
 518. 
 
 See Turley v. Benedict et al., 7 A. R, 300; 
 lieid V. Jleid, 29 Chy. 372, p. 223. 
 
 2. Tenant In/ the Curtesy. 
 
 A testator devised his property to trustees, in 
 trust to pay the rents and profits to his wife 
 durante viduitate, and if she married again she 
 was to have an annuity, and the property 
 
 
 
235 
 
 ESTOPPEL. 
 
 23S 
 
 ir'*'(> 
 
 lo 1)0 njij'licil as directed foi' the liencllt df tlic 
 ohildrt'ii, anil dividi il aiiioiiy tliiiii v hen tliu 
 ycuiij,'tst canio of .ngo. One dau^diter niaiiiid, 
 and died lielVire tlie jierind of division, leavin;; a 
 huHlmnd and two eliililnn. Tlii.' testator's v idow 
 married aj^ain Itefoiv the death of tlie daiij.diter :- 
 Held, that tlie liiisliand of the daughter was 
 tenant by the eurtesy of liur sliare. Junes v. 
 Dhicxoii, S 1'. 11. 481. — I'roudfout. 
 
 lU'td ill fee luadc hy tenant by the curtesy. — 
 Edect of. See Mc(-r"i'o- v. JlcO'mjui; I'T Ohy. 
 470. 
 
 IV. I'^STATK TAIU 
 
 1. Jlairimj. 
 
 Altlioiigh «n<ler It. S. (). c. 100, s. 0, a mort- 
 gage in fee simjile by a tenant in tail vests the 
 fee sinijile in tlie mortgagee, the registration of a 
 diseiiaige of such mortgage, in aceordanee with 
 1\.S. (). e. Ill, s. (17, does not reeonvey the es- 
 tate to the tenant in tail barred of the entail ; it 
 opci'ates only as a reconveyaiiee of the original 
 estate of the mortgagor. Lairlur v. Ltiirlor it 
 hL, (J A. W. SlL'. Iteversed by .S'l^jrenie Court. 
 
 V. KSJATK IN Fi E. 
 
 Where mortgagees in fee in possession execu- 
 ted a deed imrporting to "convey, assign, re- 
 lease, and ijuit claim" to the grantees, " tlicir 
 heii-8 and assigns forever, all and singular," the 
 mortgaged land, habendum " as and for all the 
 estate and interest" of the grantors " in and to 
 the same" : — Held, sulHcient to jiass the fee to 
 the grantees. liriijlil v. McJ/nrnii/, 1 (.). 1!., 
 CLy. D. 172. 
 
 A husband and ^\ife were the ]).arties of the 
 third part in a conveyance, whereby the wife's 
 father, did "grant unto the said party of the 
 third part his heir.s and assigns forever," &c.. 
 habendum "unto tlie said party of the third 
 part, his heirs and assigns, to and for his ami 
 their sole and only use forever" : — Held, that by 
 the operation of the Statute of Uses, the Inis- 
 1>and took an estate in fee simple. Jie Youinj, 
 9 P. R. 521. -Boyd. 
 
 Sec ^<: Morm, 8 P. E. 475, iiij'm. 
 
 VI. EsTATK IIV K.STIRETIES. 
 
 Sec LcMi V. Mi-Lilhii, 2 O. P. ,')87, p. 2.*?4 ; 
 Grlfm V. PnlUrsvii </ v.,-., 4.') Q. B. 5'Mi, p. 230. 
 He Morxc, 8 P. P. 475, bifra. 
 
 VII. Joint Tenants. 
 
 Where a deed in a chain of title had been 
 made to a husband and wife as joint tenants :— 
 Held, follo^\ing Sliaver v. Hart, 31 g. B. (iOS, 
 that m.twiUistamiing the teims of the deed the 
 Lusband and wife took by entireties. And A>here 
 the husband made a conveyance of tlie same land 
 in the lifetime of his m ife, the merely joining to 
 bar her thiMer, and she jircdcccased her hus- 
 Imnd :— Held, that the husliaiid's deed conveyed 
 the fee. lie Mvrxc, S P. P. 47").— Blake. 
 
 Two se\ eral lots were conveyed, by the deed 
 in trust set out in the report, to (J. aud A. rcs- 
 
 ' peetively to the use of CI. and A., their heirs anil 
 assigns, as joint tenants, and not as tenants in 
 common ;- Held, that under the provisions of 
 such deed, the grantees took the respective lots 
 in severalty. Adaiii.-iOH v. Adamson, 7 A.R. 592. 
 
 VHI. Tenants in Common. 
 
 Per Armour, J. Quare, wliether the eU'cct 
 of the Married Woman's Acts may not be to do 
 away with the estate by entireties, and make 
 husband ami wife, when devisees, tenants in com- 
 mon. Orijiiii V. PulUi-Koii it iix., 4."> (,». B. oM). 
 
 The defendant, husband of o'le of several ten- 
 ants in common, being in possession of the joint 
 estate, purchased the same at sheiifrs sale, of 
 which fact the co-tenants were aware, but took 
 no steps to impeach the transai.'tion until after 
 such a lapse of time as that under the statute 
 the defendant aei|uired title by possession. The 
 Court, on a bill hied by the other tenants in com- 
 mon, asking to set aside the sherifl's sale and 
 deed on the ground of fraud and collusion lie- 
 tween the defendant and execution creditor, 
 negatived such charges, and dismissed the bill, 
 with costs. Kciiuiili/ V. Ball man, 27 Chy. IliSO. 
 
 Sec L<qw'niti- v. Laili nr, 4(i >>. B. Ki, p. 202. 
 
 ESTOPPEL. 
 1. Bv Deed, 2;]G. 
 II. In Pais. 
 
 1, Aijainal Di-nijiuij Liahilili/, 237. 
 
 2. G'lvimj a Hi-cci))!, 237. 
 a. Ot/ar C((.v,.s', 237. 
 
 III. Bv Plkadinc;, 239. 
 
 IV. Bv .IriMiMENT. — Sfi' .TrixniENT. 
 
 V. As UETWEEN LaNPI.OKI) AMI TeNANT- 
 
 .Vtc Lanhlokd ani> Tenant. 
 
 I. Bv Deep. 
 
 G. W. F., being the patentee of a certain lot 
 described as of 200 acres, but in which there was 
 a, deficiency, conveyed half of the lot to .I.B. I'., 
 who conveyed it to trustees, to hold in trust for 
 E. F., wife of G. W. F., ujion certain trusts 
 declared in the deed, and without power to her 
 to anticipate. The delicieney was subseijuently 
 
 I discovered and upon the apidication to the 
 
 I gfiveriimcnt in the name of the trustees by G. 
 
 1 W. F., whom they ajipointed their agent for 
 that purpose, a grant of land as compensation 
 for the delicieney was made to the trustees of 
 
 j E. F., describing them as such. Subaei|uently 
 an instrument under seal, expressed to be made 
 between J. B. 1'., of the iirst jiart, and E. F., 
 wife of G. W. F,, of the second part, and the 
 trustees of the third part, which recited the facts 
 ami also that the trustees had no real interest 
 
 ' therein, but were named as grantees merely as 
 being the legal owners of the original half lot, 
 was executed by J. B. P. and E. K., whereby 
 
 I they declared that the parties of the first and 
 
 ' second parts were not in any way interested iu 
 the lauds granted as conipcnsatiun, and that the 
 
237 
 
 ESTOPPEL. 
 
 23.S 
 
 trustees held them as trustees for G. W. F., tliu 
 jjiitentee of the original lot. After this the 
 trustees, by the direction of G. W. F. conveyed 
 to E., under whom the defendants' claimed. E. 
 F. now brought this action to recover the laud : — 
 Held, (Hagarty, C. J., dissenting) that E. and 
 those claiming under him must be held to have 
 had notice of the title of the tnistces, who were 
 described in the patent as trustees of E. F. ; that 
 this land wa« subject to the trusts of the previous 
 (.(iiivcyance to them : that E. F. was not estop- 
 ped by the declaration executed by J. B. P. and 
 lierseif, which did not divest her of her title, and 
 tliat therefore she was entitled to recover. Food ' 
 V. L'keHaL, 4 0. «., Q. B. 1). 94. 
 
 See also, Edu-anln v. ' orrison ct ah, 3 O. 15. j 
 428 ; ricrcc Cuiianni, 29 Chy. »2. , 
 
 II. In Pais. 
 
 I. Af/ahiKl Denying Liuhility. 
 
 The plaintill 's valuator, one H. tilled in the 
 blanks in an application for a loan on statements 
 (if one S. who forged the names of J. T. B. and 
 
 I. B. as applicants, and although H. had never 
 seen the property or the applicants, he certified 
 a valuation to the plaintiffs, who accepted the 
 loan, and signed his name as witness to the sig- 
 natures of the applicants. Cheques in payment 
 tliereiif to the order of the supposed borrowers I 
 were obtained by S., who forged the name of the 
 p.iyees, endorsed his own name, and received pay- 
 ment of the che(iues, which were drawn upon the 
 defendants, through other banks, who presented 
 them to the defendants and received payment in i 
 good faith. The fraud was not discovered for j 
 some time, during which the che(jues were re- i 
 turned to the plaintiffs at the end of the month \ 
 as ]iaid, and the usual acknowledgement of the 
 correctness of the account was duly signed : — 
 Held, that the plaintiffs were not estopped I 
 from recovering the amount paid on the forged 
 endorsements from the defendants hy their 
 agent's negligence, as it did not occur in the trans- j 
 action itself, and was not the pro.ximate cause of ; 
 their loss. Atjrieiilliirdf Sitrimjfiaiiil Loan Axs.'. 
 V. Fcdiral Bank, G A.R. 192 ; 45 Q. B. 214. i 
 
 The note upon which this action was brought j 
 had not been properly stamped, and it was urged ! 
 that it coidd not bo a payment or satisfaction of j 
 one of which it was intended to be a renewal : — | 
 Held that the plaintiff being aware of the objec- 
 tion to the unstamped note, and receiving it in 
 lieu of the paper which he lield, could not urge 
 this as an objection, he having declared upon it 
 as a promissory note. Baillie v. Dickson, 7 A. 
 
 II. 759. 
 
 2. Givini] a Receipt. 
 
 Held, that defendants were not under the cir- 
 cumstances of this case bound by their admission 
 on the policy of the receipt of this premium. 
 See WesUvn Ass, Co. v. Provincial Inn. Co., 5 A. 
 It. J90. 
 
 See Agricultural Savini/n and Loan Asnociation 
 v. Federal Bank, 6 A. R.' 192, supra. 
 
 3. Other Canes. 
 
 The defendant iu this case having had the cer- 
 tiorari directed to the magistrate who convicted 
 
 was held to bo estopped from ol)jeeting that the 
 conviction was in reality made l)y three as ap- 
 peared from the memorandum of conviction 
 whicli was signed by them. Jtniliiit v. Sinttli, 
 I 41) Q. B. 442. 
 
 I Helil, that the applicant in this c,(so was not 
 precluded from moving against a by-law l)y rea- 
 so.i of his having expressed an opinion in lis fa- 
 vour before its passage. In re Feck v. The Toirn 
 
 'of Unit, 4t)Q. B. 211. 
 
 The fact that the plaintiff had attended a 
 
 nieetlTig which had been illcs^'ally called, and hail 
 
 ' entereil upon a defence before tiie (.'nuncil, did 
 
 not jireclude him from afterwards tiling a Ijill 
 
 ! impeaching the proceedings as irregular and in- 
 
 i valid. Marsh v. Huron College, 27 Chy. 005. 
 
 Semblc, upon the facts stated in the report of 
 this case, that the ))laintiir, one of the directurs, 
 should be estupped from alleging that M. was 
 not properly (pialilied as a director, the effect of 
 which would have been to injuriously affect the 
 value of bonds of the company, to the issue of 
 which the plaintiff was a party. Kuly v. Smyth, 
 27 Chy. 220. 
 
 A creditor who had proved his claim iu a credi- 
 tors' suit held iu this case not cstojiped from pros- 
 ecuting an action for the same debt. See Lee v. 
 Vrvdit V,iU,;i 11. \V. Co., 29 Chy. 4S0. 
 
 The plaintiff in this case sought to have his 
 name reniov(;d fi'oni the list of shareholders : — 
 Held, that though as against the company the 
 plaintiff, had he come before the Court in good 
 time, might perhaps have had his contract rescind- 
 ed, yet his having, as the fact was, acted at 
 a meeting of the shareholders after knowledge 
 of what he now charged against them, precluded 
 him from asserting any such riglit now, and his 
 i)ill must be dismissed, with costs. I'e/rir v. The 
 Vuiljih Ijtimlicr VoDi/Kim/ ct al., and two other 
 cases, 2 0. B., Chy.D. 218. 
 
 Where certain persons were elected School 
 Trustec^s, and at a meeting of tha Board held 
 sul)seipiently to the election, were declared duly 
 elected, but, proceedings having been meanwhile 
 conunenced to (piestion the validity of the elec- 
 tion, at a subseijuent meeting of the Board, they 
 acipiiesced in the conclusi<in of the Board to hohl 
 a new election, and became candidates again, and 
 canvassed as such, mitil the 20 days aUowed for 
 disputing the lirst election had elapsed (the pro- 
 ceedings formerly commenced for that purpose 
 having been meanwhile dropped], and were not 
 clecteil at the second election :~ Held, they could 
 not afterwards maintain a suit to have it declared 
 they were the duly elected trustees. Fuslvr et at 
 v. ktokes ft at., 2 0. K., Chy. \). o90. 
 
 The plaintiff tiled his i)ill on the 14tli .March, 
 1874. {)n the 31st of the same month, an attach- 
 ment in insolvency was issued i)y the defendant 
 against the plaintitl'. The decree dismissed the 
 plaintill's lull, with costs, in October, 1874. 
 Defendant proved against the estate for the costs 
 of the Chancery suit, but did not take his divi- 
 dend from the assignee in iustdvency, and took 
 no further steps for the recovery of his claim until 
 after the order for discharge of the plaintiff (25th 
 May, 1877), when he issued executi(Hi. On the 
 application of the plaintiff', Spraggc, C, refused 
 to set aside the execution, holding that defen- 
 dant was entitled to issue it, and tliat the 
 
 I"? 
 
 St* 
 
 
 "^^ 
 
239 
 
 EVIDENCE. 
 
 240 
 
 proving iigiiiiist the cstnte for the costs of suit 
 when it was not logiilly ])roval)le, tliil not operato 
 as an estoppel in pais between the plaintiff anil 
 defendant. S/< rriisonv. SexuDiilh, 8 P. 11. 286. 
 
 A corporation may be bound by .ae(iuiescencc 
 as an individual may. Tlw Cor/wrntion of the 
 'Toininlii/) of Prmhroke v. The Canada Central 
 li. W. fa, .3 U. 11.. Chy. D. :m. 
 
 The plaintiff, an execution credifcor, purchased 
 at a sheriff's sale under execution, certain lands 
 of ■which the registered title was then in the 
 execution debtor ; but in a subse((uent suit, by 
 the assignee in insolvency of the husband of tlie 
 execution debtor, to which, however, the plain- 
 tiff was no party, the conveyances whereby the 
 lands had been transferred from the insolvent to 
 his wife, the execution debtor, were declared 
 fraudident, and the assignee thereupon proceeded 
 to sell the lands as part of the estate of the in- 
 solvent, the present plaintiff attending at and 
 for))idding the sale. At this sale the defendant 
 became tlie purchaser, and the proceeds of this 
 Bale, together with the other assets of the insol- 
 vent estate, were distributed by the assignee. 
 and the plaintiff, being also a creditor, accepted 
 a dividend :— Held, that by so accepting the 
 dividend, the plaintiff was estopped from im- 
 peaching the sale by the assignee. Beenier v. 
 Oliver et al., 3 0. K., Chy. D. 523. 
 
 To the plea of " non est factum, " the plaintiff 
 replied on equitable grounds, alleging tliat the 
 defendants accepted the deceased s application 
 for insurance, and that the policy was issued 
 and acted upon by all ])arties as a valid policy, 
 but that the seal was inadvertently omitted to 
 be affixed, and claiming that the defendants 
 should be estopped from setting up the absence 
 of the seal or ordered to affix it : — Held, a good 
 rej)lication and not a departure from the declara 
 
 tion. U'rijht 
 A. R.2I8. 
 
 v. London Life Insurance Co., 5 
 
 Held in a suit .against a registrar by a munici- 
 pal corporation for the proportion of fees to 
 •which tlie corporation was entitled under U.S. 
 O. c. Ill, that having received the money in 
 question under the above Act he could not deny 
 that he received it for the purposes therein pro- 
 vided. County of JlaHtinqs v. Ponton, 5 A. 11. 
 R. 543. 
 
 For cases of estoppel arising under contracts 
 of Insurance. See Omnium Securities Company 
 V. Canada Fire and Mutual Init. Co., 1 O.K. 494; 
 Phillips v. Grand liiver Mutual Fire Jns. Co., 
 46 Q. B. 334 ; Fire Insurance As,'<ociation et al. 
 V. Canada Fire and Marine Ins. Co., 2 O, R. 
 481 ; Ru.isell v. Canada Lite Ass. Co., 8 A. K. 
 7](J; Quintan v. Union Fire lu.i. Co., 31 C. P. 
 «18 ; 8 A. R. 376. 
 
 See also, W(dson v. Lindsay, 27 Chy. 253 ; 
 Sommerrille v. Nae, 28 Chy. 618 ; National Lu. 
 Co. V. Eyleson, 29 Chy. 406; Johnston v. John- 
 ston, 9 P. R. 259 ; Miller v. Hamlin et al, 2 0. 
 R. 103 ; Re Martin v. Enylish, 5 A. It. 647 ; 
 Christopher et al. v. Ko.con et al., 4 0. R. 672; 
 Cottw. TlieStadaconalna. Co., 6 S.C.R. 193. 
 
 III. By Pleading. 
 
 Per Blake, V. C. The plaintiffs having filed 
 their bill in Ontario, must be taken to admit that 
 
 the Court has jurisdiction in respect of the mat- 
 ter therein embraced ; and the practice of the 
 Court requiring it, and a method having been 
 provided for service of process out of the juris- 
 diction, the plaintiffs were bound to follow the 
 practice if the objection wei-e taken. E-uchanye 
 Bank V. Springer, Exchange Bank v. Barnen, 29 
 Chy. 270. 
 
 See Moore v. Buchier, 28 Chy. 606, p. 19 ; 
 Baillie V. Dickson, 7 A. R. 759, p. 237. 
 
 ESTREAT. 
 Of Recognizance— -See Recognizance. 
 
 EVICTION. 
 
 See Landlord and Tenant. 
 
 242. 
 
 Ill 
 
 EVIDENCE. 
 I. Mati'ER.s Judicially None 
 II. Admissions. 
 
 1. By Pleadings, 242. 
 
 2. By Parties, 242. 
 Presumptions. 
 
 1. Non- Production of Papers, 242. 
 
 2. As to Death, 243. 
 
 3. Arising from Official Appointments 
 
 and Ads, 243. 
 
 4. Other Cases, 243. 
 
 IV. ArrENOANCE of Witnesses, 244. 
 
 V. Ordering "Witnesses out of Court, 
 244. 
 
 VI. Examination under Commission. 
 
 1. Apfilicathmfor and issue of Commis- 
 
 sion, 244. 
 
 2. Cross Interrogatories, 245. 
 
 3. Return of, 245. , 
 
 4. Costs, 2if>. 
 
 VII. Letters Rogatory, 246. 
 
 VIIL Preliminary Examination of Pabtibs 
 AND Witnesses. 
 
 1. Order, 
 
 (a) Service of, 246. 
 
 (b) Attemlancefor Examination, 246. 
 
 2. Re- Examination, 246. 
 '3. Fees and Costs, 247. 
 
 4. Other Cases, 247. 
 IX. Inspection and Discovery of Doco 
 
 MENTS. 
 
 1. Order to Produce, 248. 
 
 2. Withholding mi the ground of Privi- 
 
 lege, 249. 
 
241 
 
 EVIDENCE. 
 
 242 
 
 3. Olher Cctvn, 249. 
 
 4. Attachment for Non-production — See 
 
 Attaijiimkn't of the Person. 
 
 x. eviden'ce ami examination of wit- 
 NESSES AT Trial. 
 
 1. liefusimi to A nswer, 250. 
 
 2. Other Canes, 250. 
 
 XI. Judicial, Official, and other Pdbltc 
 Documents. 
 
 1. Judgments, 
 
 (a) Proof of, 251. 
 
 (b) Effect of— See Judgment. 
 
 2. Other Documentn, 251. 
 
 XII. 
 
 XIII. 
 XIV. 
 
 XV. 
 
 1, 242. 
 
 XVI 
 
 ppointmcnts 
 
 XVH 
 XVIII. 
 
 244. 
 
 
 OF Court, 
 
 
 SSION. 
 
 XIX. 
 
 of Comniis- 
 
 XX 
 
 
 XXI 
 
 
 XXII 
 
 OF Pasties 
 
 3. Foreii/n fndictmcnt in applications for 
 Extradition — See J']xtradition. 
 
 Private Documents. 
 
 1. Ancient Documents, 252. 
 
 2. Tdeejrams, 252. 
 
 3. Receipts — See RECEIPT. 
 
 Parol Explanation or Variation of 
 Documents, 253. 
 
 Proof by Secondary Evidence. 
 
 1. Loxt Deeds, 255. 
 
 2. Other Cases, 255. 
 
 Proof after Notice to Produce, 256. 
 
 Proof by Entries, 256. 
 
 Evidence of Reputation, 257. 
 
 Production and Admission of Evi- 
 dence. 
 
 1. Onus Prohnndi, 257. 
 
 2. lielevanc;/, 259. 
 
 3. Other Cases, 259. 
 Contradictory Evidence, 260. 
 Corroborative Evidence, 260. 
 Expert]Evidence, 262. 
 
 Evidence in Particular Actions, 
 Suits, and Proceedinus. 
 
 1. Arbitral ions— See Arbitration and 
 
 Award. 
 
 2. Bankruptcy— See Bankruptcy and 
 
 Insolvency. 
 
 3. Criminal Cases— See Criminal Law. 
 
 4. Custom— See Cu.stom and Usage. 
 
 5. Libel and Slander— See Defamation. 
 
 6. Extraxlition—See Extradition. 
 
 7. lireach of Promise of Marriage.— See 
 
 Husband and Wife. 
 
 8. Limitations— See Limitations of Ac- 
 
 tions and Suits. 
 
 9. Quieting Titles— See Quieting Titles. 
 
 10. Evidence of Title— See Limitations of 
 Actions and Suits— Trespass. 
 16 
 
 11. Applications for New Trial— See Srst 
 
 Trial. 
 
 12. Contested Elections— See Parliament. 
 
 13. Seduction — See Seduction. 
 
 1. Matters Judicially Noticed. 
 
 Tlelil, that a magistrate cannot take juili- 
 cial notice of orders in council, or tlieir publi- 
 cation, without proof thereof l)y production of 
 the Ojlicinl Oa-.ette, and therefore tliat a convic- 
 tion was bad which was made without sucli evi- 
 dence that the Canada Temperance Act, 1878, 
 was in force in the county pursuant to the terms 
 of 8. 98 thereof. liei/ina v. Bennett, 1 O. R., Q. 
 B. D. 445. 
 
 II. Admissions. 
 
 1. Bii Pleadings. 
 
 A bill was filed by D. D. against I. and B., 
 "trading as partners," and .1. D. alleging a 
 wrongful conversion by I. and B. of certain tim- 
 ber, the property of the plaintiff, and further 
 alleging that J. D. was a party to an agreement 
 set forth therein respecting the sale of tho said 
 timber as a surety only, and claiming the return 
 of the timljor, an account and damages. 1. and 
 B. in their answer admitted that tho timber hail 
 been removed by them, but alleged tiiat it had 
 been in accordance with an agreement entered 
 into by them with J. D., and with A., his as- 
 signee, who liad a proper authority for that pur- 
 pose :— Held, reversing the decision of Ferguson, 
 J., that the whole of the admission w.os to be 
 looked at, and it was not such as entitled tlio 
 plaintiff to a decree because it did not admit n. 
 conversion of timber of which tho ])Iaiutiff was 
 sole owner, as alleged in the bill ; Imt under it 
 I. .and B. might shew that J. D. had an interest 
 in the timber and authority to act for and repre- 
 sent D. 1). in the transaction in i|uestion. 
 Dovey v. Irivin et al, 4 O. II., Ohy. 1). 8. 
 
 Per Armour, J. When a material fact is al- 
 leged in a pleading, and the pleading of the 
 opposite party is silent with respect thereto, tho 
 fact must be considered as in issue ; therefore, 
 it was, in this case, competent for 0. to deny the 
 execution of the bond, his ])lcadingn')t expressly 
 admitting it. The Waterlmt Mut.i i7 Ins. Co. v. 
 liobinson and Clark, 4 O. R., Q. B. D. 295. 
 
 See also Cleaver v. The North of Scotland Ca- 
 nadian Mortgage Co., 27 Chy 508. 
 
 2. By Parlies. 
 
 See Court v. Holland ; Ex parte Holland and 
 Walsh, 8 P. R. 219, pp. 252, 257. 
 
 III. Presumptions. 
 
 1. Non- Production of Papers. 
 
 Held, the letterfrom K.to the defendants might 
 be assumed upon the evidence set outin the report 
 to state that he had made a sale of the goods to 
 the plaintiffs at tho prices named in the list, and 
 that as such letter was not produced at the trio], 
 though called for by tho notice to produce, the 
 
 
 
2i\i 
 
 EVIDENCK. 
 
 244 
 
 
 Cdiiit iiiit;lit, if iiect'SBaiy, picKUinc that itstattd 
 aiiylliiii^' lurllitr Mliitli iniglit liu iin'ih^aiy ftn 
 tlic iilaiiitill 'fi ta.<L' ;— JItlil, al.-o, tliat tliu lilttt 
 «p| tilt li lUr tidiii tilt! (kitiiilaiit.s to tlic jilaiii- 
 tillK «!in iKit iinjiairtil liy tliu ilit-aiiiimval cx- 
 piL'Shtd tliiiciii III' iiart (il tlio orikr. ()i:hhij it 
 III. V. il/((.s.«o/i (/ ((/,, A. li. lUS. 
 
 Sl'c Jiiiil V. Hiniiiihi-iji it III, (i A. Jt. AQ'A. y. 
 7"); see al.'^ii Sin iii-h'a Voti, l.iiinJu ('!) 1 H. Y.. 
 
 c. MO ; y.v 07;/;< «, ,s u. it. wm. 
 
 IV. AriKXTiANCEOF WlTXKSSES. 
 
 See J/i,rhaiits Jlank v. Phmm, 8 1'. It. l'-';'. ; 
 Scliiiltr. V. Il'oof/, .S. C. 1{. 5S5. 
 
 2. yl.v ti> Diiitli. 
 
 Hilil tliat tlie imsuiiiijlitiii »pf diatli aii^iiig 
 from cdiitiiiueil aliseiice of tliu (kiiiaiulant's lius- 
 liaiiil, uiilieaid of for stvtii ycais, is tiiilliciiiit to 
 BUstaiii an actiiii for (l<.-\vir as aj;aiii.st the olijco- 
 tion lliat lie is still living. 6'(7(« v. j\Joirvii; 1 
 O. It., Q. h. D. r.27. 
 
 .S. Arliiii(j Irow Ojjii'iul A}-)ioliitniihtii<iiiil Ait.s. 
 
 llelil, tl' ic if a I' isoii acts notoriously as the 
 oflicei' of a i(ir|!Oiation ai tl is rtedgni/cd hy it as 
 such (jllitLr a regular aii^iointnient will l)e lire- 1 
 ••^umidand liis acts vill hind the eoii'oration, , 
 altliougli no wiitttn jiroof is or can he adduced j 
 <jf his aiijiointuitnt. Siliool Tni-^tnf u/' tin Toini- 
 Mp vf Hiniiiltoii V. h'lil, '28 Chy. 408. 
 
 Tlie defendant was convicted of perjury al- 
 lepril to have been committed in a cause tried at 
 a l)ivis (11 Court held hy oiiell. under aei mmis- 
 sion issued liy the (!overnor-(ieneral in Council 
 apl dinting him depntj' judge of the County 
 Colli t of till county of Victoria, duiiiig |ileafuie 
 and tluYahsenee ol the eouiity judge under the 
 leave of ahsenee granted to him hy an thder in 
 Council :— Ileid, it was not neees.'-aiy for the 
 (.'r< VMi to jirove the t)ider in Council grant- 
 ing the leave of ahsenee, for its existence, and 
 that the c( nimissiiili was not eflcte hy the lajise 
 of time, would he presumed, in aeeoi dance with 
 the general pif sumjition of law that a iiersoii 
 acting in a imMic eaiiacity was duly ajiiiointed 
 and authorized to act, the onus of shewing the 
 contrary licing on the defendant, llnjiuu v, /Ve, 
 :{ (.). ]!., C. 1'. 1). 107. 
 
 \'. Oui)i;i;iN<: AVri.M>.si;s out eiK CouiiT. 
 
 The attorney for the respondent may hcorder- 
 I ed out of ciiurt w hen a w itness is being examined 
 I on a charge of a corrupt hargain for his with- 
 drawal ivKin the election contest, vlien the evi- 
 (Knee ot .'^llch witness may refer to the sayings 
 and doings of such attorney in respect of such 
 w ithdiawal. Soiilli (l.ijunt Elul'ivii — J/njil'liis v. 
 , Ollccr, 1 11. E. C. •_>!;{. 
 
 I See Sinvriii/il v. Sinirriijlit it id., 8 I'. U. 81, 
 I p. '247. 
 
 4. Other Cascn. 
 
 When one to whom a devise prima facie bene- 
 ficial to him is made neither accejits or rejects 
 the same, but remains passive, lie will be pre- 
 sumed to accept, lii- t>ijw, 2 U. It., Chy. D. 
 G23. 
 
 J. and K., living at P., had dealings extending 
 over several years with IX, who lived at K., and 
 borroweel money fre.m him freim time to time. 
 To secure the money borroweel thiy executeil a 
 mortgage to D., purportirg to be for S4,CC0, but 
 really intended as security for w hatever should 
 ])e tlue to them fn ni time to time on the loan 
 account. On taking the accounts in the master's 
 office some years afterwards, and after J. and 1!. 
 liad made an assignment in insolvency, it aji- 
 penred that shortly after executing this mortgage, 
 ami before so much as .*4,0C0 had been advanced 
 l)y I)., J. and 1!. drew on 1). for Sl.riOO :— Held 
 that, under these circumstances, the inesuinp- 
 tion that D. owed J. anil \\. tlie !?1,000 drawn 
 for, was rebutted, the draft being the natural 
 mode in which J. anel K. woulel procure an ad- 
 vance on the security of the mortgage to D. 
 Court V. Holland et al, 4 O. IJ., Chy. 1). (iSS. j 
 
 VI. ]]X.\.M1.NAT1().N L'MJEIl C'O.M.M I.SSK^N. 
 
 1 . Aj'jiliriilivii fur (Did Istiiiit of Cum iiii-:'<loii. 
 
 AVhere a witness who liad been ]>revionsly 
 examined under a commission, stated on atiidavit 
 that he had further evidence to give to explain 
 or correct his foimer evidence ; — Held, a new 
 commission i-hould issue to further examine him, 
 and that in such case he sliould be considered as 
 a witness for the party who desires to re-examine 
 him : — Held, also, that strong suspicion of a 
 depraved motive in the witness for desiring to be 
 re ixiimii'cd, was not a sullieicnt ground upon 
 which to resist theaiiplication. Ji'uijcru v. JJiui- 
 hiiiij, 8 1'. It. 2.— llagarty. 
 
 The Iteferee made an order striking out as 
 impertinent certain interrogatories to be admin- 
 istered to a witness under acoiiiniission : — Held, 
 : on appeal, that tlie Iteferee has no jurisdiction 
 I to strike out interrogatories f(]r impertinence. 
 The jiroper course is, for the witness to deiiuir 
 to the impertinent ijuestion. Willkiin-i v. Curliij, 
 8 r. 11. S3.— rroudfoot. 
 
 Where a commission was issued to England to 
 take evidence in a case involving many iiitriwite 
 (luestions of fact, the evidence was orilered to be 
 taken on viva voce questions, instead of upon 
 
 I interrogatories. ir((^so/( ifal. v. A/cJJoiialil, 8 
 
 j r. it. 3o4.— Oskr. 
 
 On an ajiplication for a foreign commission to 
 ^ examine' a w itness w ho is travelling, it should be 
 shewn that he will remain at the place to which 
 the commission is directed a sulliciiiit time to 
 allow of its due execution. Siiii/i r it iil. v. 11(7- 
 liiiiii/< Miuiiij'iutuihiij Co., 81'. It. 483. — IJlakc. 
 
 I A commission to examine witnesses in a foreigor 
 country may be issued in the case of the trial of 
 an election petition. C'urniciill Ekitiun — il7((c- 
 liiiiiiiii v. Btrijiii, 1 H. E. C. 803. 
 
 I Where an aiiplication for a commissiou to c.k- 
 : amine a witness in ^ievv Yolk, was made before 
 
 an oHicial referee, and referred liy him to a judge, 
 , it was — Held that matters coming within the 
 
 jurisdiction of any oC.cer of the Couit should 
 
 be disposed of Ity him in the usual way, anil the 
 parties niig ht then appeal from such decision. 
 
 IhnihtK v. JiiM, y. r. It. 80.— Boyd. 
 
245 
 
 EVIDENCE. 
 
 24$ 
 
 Wlicrc all (ii(kr was iiiaili for a coniiiiisbiiiiicr 
 to exaiiiiiif iiiii.' M. viva vnfu and (.tliLTwitiicssfs 
 (ill ihtfiniyatorii's : — Held, tliat tlic ctnuiiiissidn 
 lould ii'it ifstio to fxaniiiif M. only, without 
 iiiiicndinj,' tbe order. Smith v. Ihibcuck, 'J 1*. K. 
 175. — I'roudfoot. 
 
 2. C/'o«ii Interroyatories, 
 
 Wlien a foreign eoniniission issues on the mas- 
 ter's certitlcate, under (1. U. '2'2l, eross interro- 
 L'ato)ius sluuild be tiled in the olliee of the clerk 
 of records and writs ; and where they were tiled 
 by a defendant in the master's olliee instead, and 
 notice of tiling given, but by accident the com- 
 mission was forwarded without them, an ai)iili- 
 cation made on the return of the eoniniission ex- 
 ecuted to su]iiiress the deiiositions was refused, 
 with costs. JJarlimj v. JjiirtiiKj, 6 P. 11. 31)1. — 
 Taylor, Mauler. — I'roudfoot. 
 
 be costs in the cause. Tlie evidence wa^ taken, 
 but neither the iilaiiitill's who succeeded in tlie 
 suit, nor the defeiidMiit, put it in at the trial ;— 
 Held, that the direction in the order as to costs 
 did not iireclude the taxing ollicer from disallow- 
 ing the costs to the jilaintill's on the ground that 
 the evidence had not been used. JJoiiiliiiiiii,<:li'., 
 Co. V. Stinmii, 'J I'. Iv. 177.— ISoyd. 
 
 3. Ititiini of. 
 
 Where the instructions directed that the de- 1 
 positions must be subscribed by the witness, and | 
 a witness could not write, the commissioner cer- j 
 tilled to that fact, and the intcrjiictcr and com- 
 missioner signed their names :— Held, sullicient. I 
 JJarliiiii V. iJurliiiij, 8 1'. 1!. .SDl.— Taylor, Mas- 
 Icr. — i'roudfoot. j 
 
 On tbe facts stated in the judgment : — Hold, ! 
 that the interpreter was not such an agent or i 
 corresiiondent of the complainant as would jus- 1 
 tify the suppression of the depositions on that ' 
 ground. Jl>. \ 
 
 Tbe commissioner was an Italian, and the in- [ 
 structions to him were iu Kiigli.sh :— Held, no, 
 objection, as it did not ajipear that the commis- 
 sioner was unacquainted with the English Ian- 1 
 guage. ///. I 
 
 That it did not appear that the commissioner 
 took down the evidence :— Held, immaterial, 
 under the instructions set out in the report. Jh, 
 
 The depositions of the cbdmant were taken 
 by one eonimissioner, and those of a w itness by 
 another :— Held, also immaterial. //;. 
 
 Tbe time for the return of a foreign eoniniis- 
 sion was extended from tbe 1st February, by an 
 order of tbe master in ordinary, iu tbe following 
 terms : " 1 extend the time for tbe return of the 
 commission peremptorily to the '2tth February." 
 The witnesses were examined viva voce on the 
 24th F'ebruary, ..11 parties being represented : — 
 Held, that the master was wrong in excluding 
 this evidence, as tbe conmiission being executed 
 on the 24tli February, there was no irregularity 
 because of tbe necessary delay occasioned by its 
 transmission from a foreign country, and in any 
 event, tbe effect of the plaintiffs being represent- 
 ed at tbe examination was to waive any objec- 
 tion that tbe evidence was not returned to tbe 
 master's olliee by tbe 24th February. Darling 
 V. Dm-imj, 9 P. R, 5G0.— Boyd. 
 
 4. Coats. 
 
 The plaintiflf obtained an order for the issue of 
 a foreign commission to examine a witness. Tbe 
 order contaiued the usual direction that the costs 
 
 VII. LKlTlCK.sJl'iOd.iTOnV. 
 
 Held, that the Act .'H Vict. c. 70 ( I )) is not ultra 
 vires of the Dominion Parliament, for the taking 
 of evidence iu one of tbe ))roviiices for use in 
 foreign tribunals is not a subject which is as- 
 signed to the exclusive legislative autlioiitj' of 
 the province l)y sec. 02 of the liritisb Is'oith Am- 
 erica Act, in.'isniucb as such iirocccdings are of 
 extra provincial pertinence, and do not relate to 
 civil riglits in tlie province. Ik WitlnnU v. 
 Joii<:-<, 4 0. !{., Chy. 1 ). 713. 
 
 VIII. I'ni;i.iMiNAnv Kx.vmin.vtmn of Pai:- 
 
 Tli:s AND WrrNKS.SK.S. 
 
 1. (Jnlir. 
 (a) Service of. 
 
 Held, that service on tbe defendant's attorney 
 at his homo at !).30 p.m. on Saturday of an order 
 and appoiittinent to examine the deleiidant at 2 
 p. m. on tbe following Tuesdaj-, was irregular, 
 the notice not being sullieicnt : — Held, that 
 Kule of Court 135, applies to the service of 
 orders and appointments to examine, and tli.it 
 this service must be treated as if made on the 
 following ^Monday. S( iia v. Hewitt, S P. It. 70 — 
 (,). B. 
 
 An appointment was made ex parte by the 
 master at Ottawa, for the examination of the 
 defendant at bis otiice in Ottawa. A copy of tiie 
 appointment and of a subptcna were served on 
 the defendant, who resided iu Hull, P: (I., and 
 a copy of tbe appointment was served on tlie 
 defendant's solicitor : — Held, that the proceed- 
 ings were regular, and warranted by G. (). Cbv. 
 138, following .Moffatt v. Prentice, G P. R. 33v 
 and that conseiiuently relief might be had on the 
 defendant's failure to attend under (I. O. t'hy. 
 144, and also that the appointment might be 
 made ex parte. Semble, this mode of examina- 
 tion, and that provided for |jy R. S. O. c. 50, are 
 not interfered with by tbe 0. J. Act, 3. 52. 
 Bank vf British North Aiiitricu v. Eddij, I) P. 11. 
 3Ut).— Osier. 
 
 (b) Attendance for Examination. 
 
 A party out of tbe jurisdiction will be ordered 
 to attend to be examined at that place within 
 tbe jurisdiction where, in the opinion of the court 
 it is most expedient that the examination should 
 be held, and not necessarily that nearest to hi.<» 
 place of abode. Smith v. Buhcock 9 P. R. 97. — 
 Proudfoot. 
 
 See Bank of British Xorth America v. Eddii, 
 9 P. R. 39ti, m),ra. 
 
 2. I'e-E.vamination. 
 
 A party having before judgment examined 
 another party to the vause adverse in interest 
 
 I 
 
■•"* 
 
 ■ :r .■.3 
 
 217 
 
 EVIDEXCE. 
 
 2t8 
 
 1 
 
 249 
 
 mnlor 11. S. ( ». c. ."0, s. I'tC, is tint t'lititlcil tf> (i 
 rcrxMiiiiintioii lit tlic siuiir iiui'ty t^xcfpt iiiiilcr 
 tln' iiiii.-.t sjii'ciiil circiiiiistaiiccs. 'J'/ioi'luini v. 
 Jir;,ni, 8 1', I!. 114. -It.iltnii (,>. ('. 
 
 See Jtiiijrrx v, Mniuuinj, S 1". |{. 2, p. 244. 
 
 3. FicH mill Cint!<, 
 
 Where .'111 ix;uiiiii;iti(Pii of parties jiiirsuaiit to 
 I!. S. ( ». e. ."((, H. Kil, takes |ilac(.' liefore a 
 I'limty Clerk of the ('row ii, tlinuj,'h not ilesij,'- 
 iiat.eil ill tlie onier a.s aetiii^' iiihisollieialeaiiaeity, 
 tile feen for mieli ixaiiiiiiatioii are payahle ill 
 Ktaiiijis, ami not in inoiiev. Jhniiinii.- v. Mc- 
 CiiiKKjIiij, S 1*. I!. l.Si;.— U.sler. 
 
 Till' pnrtieH in an aetioii for lire.'ich of promise 
 of niarri.igi' not licinj,' coinin'tei.t or ''onipellahle 
 witnesses for eaeli other, tlu^ )plaintill w;is not 
 allowed the costs of the preliminary exaniination 
 of the (let'iiKl.iiit, niiiKr 1!. S. (t.'c. .")0, s. ITid. 
 Hilt the ]>laititill"s <osts of his own exaiiiii.atioii 
 vcre .illowed. as this took ]ilaee at the in.stanee 
 of the (lefend.ant. Wiinihiiiin v. tiluir, b 1*. li. 
 170.— Daltoii, {,». C 
 
 4. Ollii r ('<i.<i:i. 
 
 Where an order to examine a party to ,i suit 
 lia.s heeii granted liefore the trial, suidi examina- 
 tion cannot l»^ had after the trial has takc'ii [ilaco; 
 and it was .so held where the verdiet rendered at 
 the trial was a iioniiiial verdiet only, suhjeut to 
 a referenee to arhitratioii. Shilli/ v. JIu.im'i/. 8 
 I'. 11. 'iW).— Daltoii, Q. C. 
 
 Upon the examination of two defend.ants bcfor 
 a Master, he, at the rcijiiest of their solieitop 
 directed two other defendants jiresent on helial' 
 of the jdaintitr, who wa.s too ill to attend, to 
 withdraw, but they refused. The Master tliere- 
 «|ioii declined to proceed withthe examination : — 
 Held, oil apiieal, that the Master should have 
 allowed one defendant to he present on lielialf of 
 the phiintitr, if he was satistied that this was 
 reijuircd for the projier rei)reseiitatiou of the 
 plaintiir's interest, but liy analogy to IL S. (). c. 
 50, 3. 260, he might reijuire such defendant to bo 
 examined tirst, if he was to be called as a witness. 
 iSircivr'ujht v. Siveifriijht H al, 8 1'. R. 81. — 
 Spragge. 
 
 A defendant whoso interest is identical with 
 that of the plaintiff, is a iiarty adverse in interest 
 to his co-defendant, and may be examinecl by 
 liis co-defendant under fl. (). 138. When the 
 plaintifl's solicitor is present at such examination 
 it may be read at the hearing against the plain- 
 till'. The successful defendant will be allowed 
 the costs of such examination. Moore v. Boml, 
 8 P. I{. 413. -Taylor, M((Mn: 
 
 The master in Chambers has power under 
 1 ule 28;"), (). J. Act, to direct evidence to be 
 taken at any stage of the jiroceedings in a cause. 
 Ill this case a witness about to leave the country 
 Was examined before a sjiecial examiner, under a 
 C'iiamber order, during a reference in the mas- 
 ter's oHice, on which his evidence was to be used. 
 Hi Dumford—Dnm/onl v. Dannfonl, 9 l\ 11. 
 172.— Diilton, Q. C. 
 
 Rule 285, O. J. Act, ajiplies to examinations 
 for discovery before trial, and the examination 
 
 of a defendant may be had under it before de- 
 fence filed. .All exaniination may bi! obtained 
 under it at any stage of the cause and though no 
 motion is ]ieiiding. F'uh'ii v. Chamherlalnvt al, 
 <) 1'. It. 2,s:t. — ni.yd. 
 
 'I'he bill alleged that the defendant assisted in 
 the fraud by which the ]ilaintiil' was iniliiced to 
 convey certain land to her husband, the other de- 
 fendant. H. answered the bill denying all 
 iharges of fraud, disclaiming all interest in the 
 subject matter of the suit, and asking for her 
 costs ; — Held, that it was competent for the plain- 
 till' on eross-exainiiiiiig the defendant on her an- 
 swer and disclaimer, to establish if possible the 
 fraud out of her own mouth. McFarliinil v. j\lr- 
 Fiuliiiiil, !• r. I!. 73.— IJoyd. 
 
 An action having been brought in the (!liancery 
 Division to set aside a judgment as fraudulent 
 the iilaintiff took out an appointment for the ex- 
 amination of the defendant after the ilelivcry of 
 the statement of defence, but before the close of 
 the pleadings : — Ibdd, that the former C!haiicery 
 jiractiee must apply to actions in the ( 'haneery 
 I )ivision ill the ea.se of examinations fordiseovery. 
 Iiule 21!) (). J. Act refers to an existing jiractice 
 which is not repealed by the Act. iJavU v. 
 Wii-kxmi, 9 P. I!. 219.— Daltoii, MaMir. 
 
 If the issues between co-defendants are mate- 
 rial to the case of the plaintifFor to the character 
 of the relief which he seeks, he may examine a 
 defendant u]ion them, though there is no issue 
 between that defendant and himself. Ah-.mndir 
 V. Dlnnioiid it III., 9 1*. R. 274. — rerguson. 
 
 Discovery by means of oral examination under 
 R. S. O. c. 50, s. 15(1, et seq., is limited to cases 
 in which the party to be examined is compellable 
 to give evidence by or on behalf of the opiiosite 
 party. Jonr-t v. Onllioi, 9 P. R. 29().— Osier. 
 
 Ilehl, that the assistant or sub-editor of the 
 defet'daiits was an otfieer of the eomjiany exa- 
 minable for the purpose of discovery umler K. 
 S. (). e. 50, s. 15(i. Mnitland v. Glolir Printimj 
 Co., 9 P. It. 370.— (.)sler. 
 
 Semble, that a person who has ceased to bo 
 an otliecjr of a corporation cannot be examined 
 for discovery under 42 Vict. c. 15, s. 7, and 
 rule 227 <>. .1. Act, unless the matters in re- 
 spect of which he is sought to be examined oc- 
 curred while he was such olficer. Ih. 
 
 In an action of replevin a party was added as 
 a ilefendant at the instance of the defemlant, who 
 claimed indemnity against him on the ground 
 of a warranty. After issue the plaintiff obtained 
 from the judge of the County Court of Lainbton 
 an order to examine the third party ; —Held, 
 that thou^di on the face of the pleadings there 
 was no direct issue between the plaintitF and 
 third party, yet as the latter had all the rights of 
 the defeinlant, and virtually took his place, the 
 case was within the s])irit, at all events, of rule 
 224 (). J. Act, and that the examination should 
 be allowed. BriuUi'ii v. Clarh', 9 P. R. 410.— 
 Daltoii, Mni/ri: — Cameron . 
 
 IX. iNSrUTION AKDDlSrOVERYOF DOCUMENTS. 
 
 1. Order to Produce. 
 
 In an administration suit, where certain crerdi- 
 tora produced promissory notes an vouchors for 
 
218 
 
 bcfitro (Ic- 
 
 v olttiiinoil 
 
 tlioiigh no 
 
 rlaiu ct III, 
 
 assisted in 
 iiiiliicud to 
 
 lu otliordt^ 
 
 Iciiying nil 
 rest in the 
 ng for her 
 
 irtliu plain- 
 on her an- 
 
 iiissiblo till! 
 
 and V. Mf- 
 
 cOlianccry 
 
 franilulont 
 
 for tliu ex- 
 
 lelivery of 
 
 tlie close of 
 
 •r C'liiinccry 
 
 i; ( 'liancery 
 
 ir discovery. 
 
 ing jiractice 
 
 DavM V. 
 
 ;s are mate- 
 le cliaracter 
 examine a 
 is no issue 
 A Ic.randir 
 •guson. 
 
 lation imdcr 
 ited to cases 
 coiiipellable 
 the opiiositc 
 I. — Osier. 
 
 ilitor of the 
 unpany exa- 
 ry iiiuler It. 
 
 'i>l>c Prinlinij 
 
 jcased to be 
 ic examined 
 "), B. 7, and 
 xtters in re- 
 xamincd oc- 
 >. 
 
 as added as 
 'endant, who 
 
 the ground 
 itifT obtained 
 
 of Lambton 
 irty : — Held, 
 adings there 
 daintitf and 
 
 the rights of 
 lis place, the 
 fcnts, of rule 
 lation should 
 P. R. 410.- 
 
 f Documents. 
 
 ertain crerdi- 
 vouchors for 
 
 ' 
 
 24i) 
 
 KVIDKNCi:. 
 
 L>.-)0 
 
 nearly idl tlu'ir claim, the master, as of cipursc, 
 ordered procluctimi oi liie I'lioks and accoinits. 
 On appeal, I'roudlipi.t, \'. ( '. iiiid (S 1', !!. S(i,) 
 tiiat III tlie lirst inslaiice (no special cause lor in- 
 vestigating tlie account biiiig made out,) tlie 
 master should iiavc acce|itcil as snUicicnt tlie 
 oiler of the creditors to allow an iiispcitiiiii of the 
 hooks and accounts at t'.ieir ollice; Held, rever- 
 sing this decisiiMi, tiiat the executors wire also 
 entitled to an allidavit idcnliiying the liin.ks and 
 aceoiints as being all in their possession ii'lating 
 to the claim. Ilr Ji'hm LMiilr, 't .\. 1!, S'J. 
 
 Orders to piodiicc under (i. ( >, i:{4, arc made 
 for the iiiirposes of the hearing only, and such 
 orders will not be enforced for the [lurposes of a 
 reference : the [iroper course is an ap|)licatiou 
 to the master, to whom matters in dispute have 
 been referred, llilihrhmiii v. Mr Dmuild, i> V. 
 K. 38i».— Ste[ihens, llri'iric. 
 
 Where a person of iinsoiinil mind sues by a 
 next friend, the usual pi.eciiie order tliat the 
 plaintill do produce is proiii:r, and is suliieiciitly 
 obeyed by the allidavit of the next friend. 
 Tmriss V. liiU, 8 1'. 1!. "jJO.— lioyd. 
 
 The defendants bad liled and ibdivered their 
 statement of ilefeiiee, but the iilcadings had not 
 been closed : -Held, that the plaintill' was en- 
 titled to the pra'cipe order lor production. 
 l)(dv V. Hull it nl. U. I'. K. lOO.-l'nnulfoot. 
 
 '2. W'i/lilioldiiKi oil the ijrtiiLiiil nf I'l-iiilnji-. 
 
 In an action to restrain tin; infringement of a 
 patent, in which the defence set up that the sup- 
 posed invention had been previously patented in 
 the I'liited States and l'".iigl mil, copies of Ameri- 
 can jiateiits material to the defendant's case, were 
 procured by bis solicitors of their own motion lor 
 the purposes of the action: -Held, that such docu- 
 ments were privilii,'cd from production. 77/' 
 (,V/y-/( <: Co. V. \VI,U,l„<id, \) y. U. .-)()!». — Dal- 
 ton, Miitlci: 
 
 In :ui action on a promi.ssory note given by the 
 defendant to the plainlill's in [laymeiit of a quan- 
 tity of jiads made by the plainlill's, and said to 
 possess curative liroperties when aiil>licd to the 
 body, the dcl'enec was, that the note was obtained 
 by fraud and that the jtads purchased were use- 
 less and possessed no healing properties. 'I'lie 
 defendant demanded production and discovery 
 of the formula or recipe from which the jiads 
 were made, in order to shew that they were 
 valueless, which the plaintill's refused on the 
 ground that no representation was made as to 
 their ingredients, that tlu^ composition was a 
 secret not iiatented, and that discovery would 
 injure them in their business : Held, that the 
 defendant was not entitled to the discovery. 
 Slur Kiiliici/ I'uil t'o. itiil. V. Unoiwuod, 3 0. It., 
 Q. B. I). '-'SO. 
 
 As to oilers between litigating parties made 
 without luejiidice. See Tin' t'i:r>:intdioii uf t,',i 
 CiHDihj (>/' York V. Till 'I'oriiiilo drawl Jload and 
 Coiifrvh' Co., :{0. i;. 584, p. MO. 
 
 3. Other Citsis. 
 
 An action was brought upon the covenant con- 
 tained in a chattel mort "age which covered •'oods 
 
 in the United States, ajid which was not re;.;is- 
 tercd ill Ontario; Held, on an application inr 
 inspection of the mortgage, that the ciuirt li id 
 power, irrespectivt' of the ( 'oiiinion Law I'roee- 
 diire Act, to older in:<|ici'tion ol the mortgage in 
 i|iiestioii, or of ;iny doi'iiinent sued upon. A'.//- 
 miii.'< v. Mldd/riiii^x, H ]'. K. ;(20. D.ilton, <,>. ( '. 
 
 .Scniblc — I'er Spragge, (J. .1. O. , and I'attiisun, 
 .(. A., although a party to a caii.se may be en- 
 titled to call for the pripditetion of doeiiinents, in 
 oi'der to obtain diseoveiy, it iloDS not lollow th it 
 the contents of such documents are in thems.h , s 
 eviileiiee. J'lic Coiiii'/ii I'l iilral liiiilirni/ ( ti. v. 
 MrLanii, 8 A. K. .")IU. 
 
 See Mirchaiil-i' llunk v. I'lirnon, 8 l*. 1!. l'J.'<, 
 
 I.. :i7. 
 
 Kvioi:ni;k .vsd KxAMiNArio.N ok \Vi r.M:s.si;s 
 
 .\T Tlil.Vl,. 
 
 1. li'ifiiniini lo Aii.iii'i'r. 
 
 I'laintill' 
 New York, 
 
 respondent), a teller in a bank in 
 ibseonded with funds of the baiil;, 
 ilid canii: to St. .bihli, -N'.!*., where Iw was ar- 
 rested by defendant (apiiellant), a detective re- 
 siding in Halifax, .\. S., and imprisoned in the 
 pidice station for several hours. .No charge liav- 
 inn been made against him he w .is released. 
 While (ilaintill' was a prisoner at the jiolice sta- 
 tion, the dclendant Went to plaintill's boarding 
 house and saw his wile, read to her a telegram, 
 and demanded and obtained from her money she 
 had in her |iossession, telling her that it belonged 
 to the bank and that her husb.uid was in custo- 
 dy. In an action for ass.uilt and false imprisoii- 
 ineiit, and for money bad and received, the de- 
 fendant pleaded, inter alia, that the moiiej' had 
 been fraudulently stolen by the plaintill' at the 
 city of .\i:w N'ork, fiom the b.iuU, and was not 
 the money of the lilaintill' ; that ilvfeiidaiit, as 
 agent of the b.nik, reeeived the money to and 
 for the use of the bank, and p.iid it over to them. 
 Several witnesses were examined, and the plain- 
 till' being examined as a witness lui his own be- 
 half did not, oil cross-examination, answer eir- 
 taiii ipiestions, relying, as he said, upon his 
 counsel to advi.se him, and on being interrogated 
 as to his belief that his so doing would tend to 
 criminate liiin, he remaiiiisl silent, and on being 
 lire'.sscd he refused to answer whether he appre- 
 beiided serious eimsei|iienees if he answered tie 
 (piestion proposed. The learned judge then told 
 the jury that there was no identilic.itioii of the 
 money, and directed thnii that, if they should be 
 of oiiinion th.at the money w;ts obtained by force 
 or duress from ]ilaintiH"M wife, they shoiiid liud 
 for the pl.iiiitiir : Held (Ihnry .1. dissenting), 
 that the defeiid.int was entitled to the oath of 
 the party that he objucted to answer because bo 
 believed his answering would tend to eriniiiiate 
 him. Poircr v. yi//;,v,' S. C. K. 1. 
 
 2. Otiiir Ca.ii:t. 
 
 Held, in this ease, that it \va.s unnecessary 
 that the denial in the answer should bo met by 
 more than the jilaiiitiH's own evidence, for the 
 defendant had been examined, and bad furnished 
 sullieieiit ground lor discrediting himself. J/o- 
 hrrlj V. JJruoh, 27 Cliy. •J70. 
 
2r>\ 
 
 KViDKNCK. 
 
 '2:r2 
 
 
 I'tr WIImiiii, ( '. .f.--A piirty calliii;,' flic upiMi- 
 f-itr |iai ty ;iN a witm^cM iii:ikc;< liiiii his witmsM to 
 ill! ihtiiiits ami |iui]n'-'. /hiiil,:ir v, .1/" /•, ,TJ 
 (J. I'. Ml.-). I 
 
 iVr ^ViI^<rlll, (', .1. Wlicrt' tln' mati riality "f i 
 o'l'taiii ('iii|iilri('s is ulivioiis, aii<l is uhsuiimmI at! 
 tlir trial, as i. ;/, in tlic |ii-csriit I'asc with iVL;aril 
 tu till' tiiii|i(iati' lialiits or otherwise of the ilf- i 
 ciisccl, ihiii' is no nt-i'ij to Kuliiiiit it lothujnry. 
 /i'/'.<.« // V. 'I7ii Ciiiiii'lii Lii'i .["■•iii'inici Ci I. ,'•)'- ^ ' . 
 
 The ilcfcHilants a]i|i(ariil hy tlic sanic attorney, 
 jihailcil jointly hy the sanre attorney, ami their 
 (leieneo Was, in snlistanic, |ireiiMly the same, j 
 lint they wire re|iri senteil at tin ti ial hy sejiarate 
 I 'oi nisei. ( In ex ami nation of one of tlie^iilaintiU's , 
 M it iM'Ssss, liipth eonnsd elainied the ri;;h: to emss- : 
 examine the witness ; Meld (alhrmini! the rnlini: 
 ol Uiu ,inc!;.'e at the trial), tliat the JMil^'U was | 
 ri:,lit in allow ini^ only one eonnsel to enisscx- ' 
 aiiiiue the witness. W'nlLir v. MrM'tlbni, (i S. J 
 C. K. -IW. I 
 
 See also Miti-ilniiii!il v. Wnrf/iiinihiii, (I ill.,'!'. 
 A.li. i*"!.'!! ; Min-nni 1 1 al,, V. 'J7ir t'ltiniilaCi nlrnt ' 
 
 /,'. ir. Cu., 7 A. i;'. cm. ' 
 
 .\l. .li iiui.M, (irrniAi. .\M) niniiu J'l iiijc 
 
 Due IMKN CS. 
 
 1. Jiiihjiiii i'><. 
 
 (a) I'riinf III'. 
 
 Ill ;in ,'ution of (laMiai;i's for inalleious arrest 
 nnl in;]ii isonnient of jilaintiH', umler ,i e;i|iias, is- 
 --iied hy a sti|iemli:ii'y mai;istrate in Nova Seotia, 
 w hose jniliinunt. it was alleired, was I'eversed in 
 a|i|ie.d liy th(^ Sn|irenie Court of Mova Seotia, 
 oral eviilenec "'that the deeisioii of the niaj,'is- 
 trate was reversed," w.is deemed snllieieiit evi- 
 liem-e liy the jnd^'o at the trial of the detei'min.'i 
 t ion uf tile suit lielow : Held. reversiiiL; tiu^ jildi;- 
 iiient of the Sniireine Court of Novji Seotia, that 
 >iieh evidence was iiiadniissilile, and was not iiro 
 per evidence of ;i linal jndyment of the Siiprenic 
 i emit of Nova Scotia, (t'niiii v. C,,.c, ;{ S. C. Jt. 
 ■J! 1(1. 
 
 As to ohtaininL; judL'nient nnder rule 'V22 (). J. 
 
 Act, in an action on a t<irei^'n jiidLtmeiit wluTc 
 the recovery of the forei^^ii jiidLrmeiit has liciii 
 put in issue liy the iileadin;,'s. Sec Uiinliiri/ v. 
 
 J'liriiri; 2 (). U. L'Sl. 
 
 •2. Otiirr /)uniiiii'iil.'<. 
 
 Held, that a notarial cojiy of an as.si^qinient in 
 insolveni'j- may he iceeivcd as eviilcncc of snch 
 assignment nniler C. S. < '. c. SO, s. 2. I'n.ii-utt 
 Klii-tioH — MrKnnir. v. J/nmilloii, 1 II. K. (!. 1. 
 
 Held, that the Comity Court judge '.s order to 
 arrest was well provi'd, under I!. S. (). c. (i'J, s. 
 •_'S, hy tho production of a copy certified as such, 
 nnder the hand of tlic clerk of the court ; but 
 that the atlidavit on which tho capias Lssuod, 
 liltd in that court, was not duly proved hy the 
 pniduction of a copy of the atlidavit similarly 
 certilied, ami with a sc il attached, apparently 
 that of the court, but not referred to or des- 
 cribed in tho certiticato. Timmius \: Wr'uiht, 
 45 Q. B. 240. 
 
 Two partners in llusinl■^s (T. k W. O'Neill) ex- 
 eeiitid twdiiioi (gages in favourof.l. \\'., W. assign- 
 ed the mortgages to 1 1., by way of d<ii\ ative mort- 
 gage', on thel'lst .Maivli. I .S77. Ill laiiiiaiy, IS77, 
 the O'.Neills beciine iinolvellt, .llld the plailltill', 
 
 their assignee, lilei) a bill to redeem these mort 
 gages. .After deiM'ee \\. beeaiiii' insolvent, and 
 thir suit was revived in the name of I', it I'., his 
 assignees, in his stead, (hi the relVienee, II. 
 t lainied so niiieh of the amount due on the ori 
 giiial niiiituages as would satisfy his derivative 
 nioitgage, and I', claimed the rem.iinder. Against 
 their claims the plaintill' lileil Iv. o similiir .sur- 
 charges, one againsl II, and the other against I' 
 k I', in -iipport of his surcharges the plaintill' 
 olli leil till follow iiig evil loiiee: I. ,\ certilied copy 
 of the e , idi nee taken in an action at law brought 
 by the plaintill' against W., in which he recover 
 III jiidgiueiit, in the spring of l,'S7!l, for a con- 
 siderable sum as the uiip;iid purchase inoiu'y for 
 goods sold by till O'.Neills to \V. A certilit'd 
 copy of the judgment of tlit^ Court <if Coninion 
 I'leas a rule for a new tri.il, jiiid an cxempliiica- 
 tion of the judgiiient roll. 'J. A certilied copy of 
 the depositions of W. taken in this suit btdore 
 the .Master at ( 'ohoiirg prior to the ni.ikiiig of the 
 decree: -llidd, I. That the evidence of tluM'oin- 
 nion law action could not be read as against either 
 II. or I', it l'..bnt that the evidence of \V. himsell 
 niight iiossibly be received .against his assignees 
 I', it r., as adiiiissions made by him, and that 
 the exeiiiplilicition of the judgmint might be 
 used against his assignees to shew an indebted- 
 ness from \V. to the plaintill' as assignee of the 
 O'Neills on a particular !icciiunt. '_'. That tin; di- 
 positiiins of W. before the .Master at Cobonrg. 
 like his answer to tlii^ suit, could lii^ read against 
 himself, and nnder the later authorities .against 
 II. .also, t'liiirf V. Ilulliiii'l -I .!■ jiiirlr llnlhiinl 
 till'/ U'liU/i, S I'. I!. '2VX Taylor, .}f,isl,,: 
 
 Where a iietitioner under the (^luieting Titles 
 Act elainied title through ;v vesting order made 
 upon a saht under a decree in an admiiiistratiou 
 suit: Held, under (iiiiin r. Doble, I") Cliy. (it!,"), 
 tli:it in the absence of proof to the contrary, the 
 order should be iissuincd to regular, and that it 
 was unnecc.ss;irv to give evidence shewing tith' 
 J{i' Moi-Ki; 8 P." I!. 47").— Blake. 
 
 After judgnicnt, at the trial, but before th' 
 argument in banc, the defendants put in the 
 report of a case bearing upon the nuestion, <lc- 
 ciilcd in the Supreme Court of the United States, 
 vcrilicd by .atlidavit : — Held, admissible. Jik'' 
 it ol. V. aiiiiii it III., 4 O. 1!., Q. B. I). 579. 
 
 XII. I'liivATK Documents. 
 
 1. Anriiiit Dnnimiuln. 
 
 Held, that the iiroduetion of an original mort- 
 gage signed by I)., which was more than twenty 
 years old, proved itself under II. .S. O. c. 109, ». 
 I, subs. 1, which makes such a document evi- 
 ilenco of the tiaith of the recitals contained 
 therein until shewn to be untiaie ; and therefore 
 it was evidence of tho debt due thereunder, and 
 could he used as such against the sons. Allan v. 
 Mi-Turiih, 28Chy. o.SO ; 8 A.K. 440. 
 
 2. Tilvijrannf, 
 
 In .an election trial the court ordered the agent 
 of a telegraph company to produce all telegrams 
 
2r>i> 
 
 •.'■■i;i 
 
 i:vii)i;n(K. 
 
 on 
 
 51 
 
 Hciit liy tl"' I'l •<|"iii(lcnt ,111(1 liii iilli'^'fil nifi'Mt ■ 
 (liiiiii.i the cli'i'tHPii, fi'scrviim to tlio lis|piiihli'iit 
 
 till' I'il{llt to lllilVI! tllll Clllll't cit' .\|l|ltMi III! till! 
 Iinillt. Siilll/l > ).i/'iii'l/ /•J/ii'liiiil — //ll/l/,iin V. Olil'i ;•, 
 
 I II. K. »'. •-'I.l. 
 
 Mil. I'MKii. Km 
 
 I.VSAI'ION II 
 
 I )i ir I • \i i; N IS. 
 
 N'AltlAIION UK 
 
 'riir (li'I'fiiil.ilil, .illcr a iiiiti' iiiyalili! to tin; 
 |il;iiiitlir li I'l liji'itiii! iliii', an I wliiln il I'.^miiiii''! 
 iiii|iiiil, cii'liiisi' I ii|):iii it tin: rollowiiiL; woi'ils : - 
 " I '^11 uMiit 'I! tllll paviii.'iil of tllll williiii iii)ti' til 
 Mr-i*n.T. I>. fc Cip. (till! |)laiiitill-(), ..ii iImiii unl." 
 Till' I'viilriii'd sluiWet I til vt till! I'liiisiiliiiMtiim t'oi' 
 tills 1,'iriiMiit '11 w.iM till) i^iviiij,' of timi! tn (piid ('., 
 fill- \vli'Hi'il>!)t til til -' [)\ liiitill' til .' iiiiti! w.n ,1,'iviiii 
 ;n I'lill itiM'.il s 'ciirity : -llt'M, tint tin; uviilulioj 
 tint tlij n'lviii;,' lit' tiiii-i til (!. W'.n tint ouii-tiilLiiM- 
 tiiiii I'm' till! l;ii UMiiti'i! dill nut c i itr.i liut tliJ 
 littrr, tlii'ii:,'li it w.n iixiii'iissiiil tn 111! "oil do-, 
 III ml;" I'lir tln'si) wui'.U I'.'ft'rr.iil to ii cliMiiiml 
 u|i III til ! l;ii ir uit ir ;kft:'i' fnrli.! vr iiu; ! 1 1 [ir.Hs ( '. ; 
 ainl tint ^ii'ili l'iii'l>i;,iriiu'u wan a i,'iiii 1 cumiiloiM- 
 tinll. /),ir!:i V. F,i,i-i'iii, V) ti. W. '.W.). ! 
 
 A iiiiirtL,'a;;i' mi a vcssfl was (ixiiinitml to siiriiro . 
 till' |iiirclias(' muiiry ami riv.,'isti!riMl with IIhmmm- 
 tiiiii'4, ami aim 'M'll tn it was an iiHliiiiiiiiiit ul 
 till! saiiii! date iimti'r seal i;xiM:iit,'i| liy tin; do- 
 I'l'iiilaiits ri'citiiiL! tlio iiini't'^ini!, and tint tlio i 
 tiii'iiHiif ]iayiiu'iit woi'i) Mi't lni'tli tlii'i'iiiii tor con- , 
 vi'iiii'iiuu of ri'L^i-iti'v, ami "this iiidniitiii'ij is i;\- 
 I'l'iitrd for till' |iui'iiiHi'. of I'vidi.'ni'iii'.^ tin; ti'iiu 
 a^'i'i'i'iiu'iit liL'twi'i'ii lilt; pirtiiis which is hi'i'cin , 
 al'ti'i' stated." 'I'hi; terms of |)iyiii';iit wore then 
 st.iti'd, diU'crim^ fniiii tlioso in tin; i'CL;isti;i'i'il 
 iiMrt,L;aL;i; ; and di't'cmlaiits covenanted to iiisiire 
 til" vessel for ^1,1'!) and is-ii:^a tli i |i iliey to 
 liliiiitill'. The alle^'ed wai'iMiity was v.a'lid and 
 w;is not inido out at the tiiii'! of exci'iitini; the 
 writiiij,'s, liiit ilefeiidaiits swnri; that tli "y umild 
 lint li ivi' liiiii^'ht without the warranty, and 
 w-iiiM 1 i>tlu;rw;su hivo j,'iv(;ll over niie-third 
 
 'I till) [I, lor a vessel wliich could not lie iii- 
 -iired : — Held, tli it evidi;m;e .if the verliil war- 
 Miity was .1 liiiissihle ; that it did not viry or 
 alt 'r the w 'r^'s ; .'iml tint the declaration tint 
 tlii! iiistriii. .1 was mnli; to evidenee the true 
 aLT'cjMieut referred inerelv t'l the t'eruis of p ly- 
 •M lit. La /I'K'lir V. O'/Li'/iii ./ a', 1 (). K., i}. 
 
 '! i». noo. 
 
 I'arol evidence is iindinissihlo on a scrutiny 
 to alter the v;duo assess I'^iinst iiro|)erty in 
 the assossineiit roll. Sun h 1,'ri'inulli- hlciHinii— 
 E/lity. rr,iH,r, 1 II. K. C. Ki.'J. 
 
 Where a contract was evpressed to sell limits 
 N'lis. 1 ami .*{ for the sum of -Jl 5,.")!ll) ; also all the 
 lilaiit used in connection nitli the shinty now in 
 iilieration on limit Xo. included in the list 
 undo ont last siiiiimDr : iluld, .sullieiuntly deli- 
 iiito to satisfy the Stitiite of Frauds, since the 
 Jilaut referred to therein ooiild easily be identi- 
 lied by parol ovidenco as being that specifically 
 duseribol in a oertiin writim,' which aecompani- 
 eil the all )vo contrai't, and which w.'vs signed in 
 the linn's name and by the purchaser, as also 
 could the terms of credit to be allowed as to the 
 piymont of Sl."),.")00, and sucli [ivrol evidence 
 was ailmissiblo though the contract iiiipnrtcd 
 prima facie, &c., a down p.ayincntof the-SlUjoOO. 
 iind V. Smith, 2 (). R., Chy. D. 09. 
 
 .\stii admissibility of pirol evid"iici! th it the 
 loan I'omp my and the insuier.s hid in cirectiti){ 
 an iiisiiriiii'e on mort'.; i'.;ed property, only th ' 
 interest of the iiiirt'.; i^^ees uudcr ciilisidei' itioii. 
 Seu //i;»i .■( V. I'lii: / liiiliilioil /'V/'e itii'l .\f(triiti' 
 /ill. r„„ -2 O. 11. .S;»; S A. II. (!H. 
 
 iicrtilie itioii of policy iif insuriiice oil 'ground 
 of mistake. See '/'lir .Hinii LilV /n^. <.'•>. v. 
 /.'/•./'/;<■, fi S. ('. i;. 1. 
 
 Till' respondents sued the ap|icllants for breach 
 of eoiitr.ict to carry petroleimi in cuvered cira 
 from jj. to II., all e .(in l; tin*, they n ',di',' 'iitly e ir- 
 riel the suite upin open pi itforiii c irs whereby 
 the barrels in which the oil was were expos mI to 
 the sun ;iud weitlier ,ind were diMtroyeil. .\t 
 the trill ;i verb il contr.iet li;twcen pi lintilFs .'iinl 
 dcl'eiid lilts' .'i^eiit at I,, was proved tint the d i- 
 fen lints woul 1 c irry the oil ine ivcred eirs with 
 di'spitch. The oil was forwarde I in openeirs 
 and del lyed in dill'erent places .ind in come picuco 
 a lireii ipi iiitity wis lost. On the shipment of 
 the oil .1 receipt note w.'is given which said noth- 
 ing ,'ibout covered ears and which stated th.it the 
 goods were Hubjeet to (•onditions indorse I tliero- 
 on, one of which wis tint the defend ints would 
 not be liable for le ik I'^e or del ays and tint thu 
 oil was e irrii'd at the owin;r's risk. I'cr Strong, 
 l''ouiiiicr, Henry, and ' iwyniic, .1.1. Tiiecvidenco 
 w IS admissible to jirovca verbal c iiitr let to e irry 
 in covi;rcil e irs which contract the ag 'iit at L. 
 was authori/ed to enter into and wliii;h must bu 
 inciirpor.ited with the writing so as to mako tlio 
 whole contr.ict one fur i'iri'ia;^e in the covered 
 cars ;iiiil tint lion compliance with the provisioni* 
 .'IS to carriage in covered c irs prevented the all- 
 pi'llmts setting U|i the conditiim tli.it "oil w.i'i 
 eirried .it the owner's risk," .is exempting them 
 from liabilitv. '/'/'■ 1,'r'rid Tnnik It. W. (lit. of 
 ('■ni'fht V. Fii.j r.ilAil a',, 5 S. 0. U. 'JOl-. 
 
 The [ilaintiir sued the ilcfendant, .'i [liaiio tin- 
 ker, for ,1 breieli of a warr.inty given by his 
 s ilesnnn on the s ili; of ,a |iiaiio, tint the iiistrii- 
 iiieut w us then s Hind .iiiil in good urder. The 
 plaintill' signed the ordinary receipt nite, wdiicli 
 is set out in the n'liort, providing for payment 
 of the price, and that until paid the pro[)erty 
 should rennin in d el'end mt, in which there was 
 no mention of the warr.inty :— Held, that parol 
 ' evidence of the w.arr.inty w.is a'lmissible, aa it 
 j w.is appinuit tli.it the recci[it note w.is not in- 
 1 tended to be the evidence of the whole contract, 
 (iliia're, whether this ijuestioii should not have 
 been left to tlio jury. Mf.Mnllii), v. lyUlidinx, !i 
 A. U. .JLS. 
 
 Where cort.iin shareholdcr.s of the. <i. li. Com- 
 pany sought to restrain a call on stock, on the 
 ground th it it was being m idc in i^ontr.iventiim 
 of the terms of a certiiii unwritten ;igreoin'!nt, 
 alleged to have lieen entered into between all 
 the promoters when the company was formed ; — 
 Held, that evidenee of slid agreement was inad- 
 missible, since it was c mtiM lietory of the written 
 agreement eitcrcd into by the pliintiirs when 
 subscribing for their sh ires, vi/.., to take stock 
 and pay the ciUs when duly nude. (^/irUtD/tlicr 
 H <il. V. .Vw'Kt I'/ a/,, 4 (). R., Ohy. 1)., (J?'-'. 
 
 Sec .^fil/.^,■^„). V. /Teiv (.«,(/., 7 A. R. 7ti7, p. 
 2!)3. .See also Cmn'raii v. Wi'lUnitim (Jr'ij and 
 Bruce li. W. Co., 27 (Jhy. !)5 ; 28 Ohy. .327. 
 
 See, also, Dked IV., p. ?04. 
 
 iir 
 
SfiS 
 
 EVIDENCE. 
 
 25G 
 
 257 
 
 
 XIV. Tjioor liv Sk.ciindaiiv Kvidenck. 
 
 1. Lout JJerdfi. 
 
 In ejcctiiiont it niipcarcil tliiit the lot in <|Uls- 
 tion li:i(l liccii <:i;int(<l in lHi'_', witii otlur lotn. 
 to M. A. v., M., and 1'. In (iiiKr to prove tliu 
 iilligL'il ctinviyanct^ nf tliu l.'itli Filiiuary, ISKi, 
 ])>■ M. V. to V.'., wliitli liail ))iun lost, tliu iilain- 
 till'iiut in Ji nuiMoiial tlicicol', ivgistuird I)<cL'ni- 
 l)Lr l!)tli, KS'2(i, .sij^nt'd by tliu giantLU, including 
 an tnidividcd moiety in all tlio land in tlic jiatiiit 
 ■with otliiT lanils. It was sluwn also that V\,, 
 in 1S'J7, had nioitj,'ai^('d all the laiids in this niu- 
 nidiial with other lands, to a hank, wliieli, in 
 18'J!I, reeonvoyed them to the tiustees under 
 W."s ttill: that in IS.S!!, It. took a conveyance 
 from the (levi,<ee v.f W. of three of the lots men- 
 tioned in the memorial, ikjI ineludiuL: the lot in 
 quchtion ; and that in IMft, jireci ediiij;s were 
 taken in ;iai tition on the I'ctitioi of the devisee 
 of V\ ., nnder vhich this lot was ai sijjiied to AV. 
 i'ossiission had het'U held of th's lot, nit in ac- 
 cordance with the allegid lost died, hut liy ])er- 
 pons claiming under 1!.; hut the court held that 
 the (evidence failed to I'rove such j)ofisession for 
 for''y years, or that it was taken with the kuow- 
 led^ie of AV. or hi.s ileviHce. 'J'he iilaiiititl' claim- 
 ed under a deed from such devisee executed in 
 187Ii : — Held, (.'anieron, .)., dissentinj.', (1) That 
 there was sullicient jiroot of the lost deed from 
 M.C ('2) 'I'iuit the ]ilaintitls claiming' uudtr \V. 
 were jirotected under C S. U. ('. e. S^S, s. ;?, as 
 against the jiossessiou of I!., his co-tenant, for 
 less than forty yeais. \'tiii !'</.■.(/;•(/ «/. v. //inih- 
 ^ow, 4;") (,|.1'>. 'J.VJ. Aflirnud in aiii>eal, see "JO C 
 U J. 11. 
 
 2. Ollin- C (/,s.,<. 
 
 In an action for eidls on stock where shares 
 lield by a defemlant as executrix an<l in her own 
 liuht were transferred under |Mi\\ers of attorney 
 wliich were not jiroduced :— Held, that there 
 was sullicient evidence to shew the existence of 
 Bueh jiowers, and to let in secondary evidence 
 thereof, the defenda'.t and the testator having 
 tiiUy adndtted their liahility as owners of the 
 t-hares. J'roiiiunil Iim. Cv. v. Caiiiiruii, 31 C. 1'. 
 
 AVlicre a sale of lands for taxes liad taken 
 place, and a siut was suhseijuentl ■ instituted oy 
 the jiurchaser to set aside a conveyance to the 
 defendant vxecuted alter the registration of his 
 own d'.(»l and the deiendant imiieached the deed 
 executed ill jiuisuaiice of such bale, it Was shewn 
 that a warrant had heen at onetime in the court 
 liouse, a iiortion of which was destroyi'd hy lire, 
 and that on that (ice;>gioii the warrant had been 
 probably consumed : — ih.ld, sullicient eviilenee 
 to authorise the court in admitting secc dary 
 evidence of its contents. J'\riji(soii v. J'm xiii, 
 27CLy. 211. 
 
 A cheiiuc of the plaintilV's, when produced at 
 tliu hearing, had written on it, "in full of all 
 his (the defendant's) elai". j for notes or other- 
 wise," and ivliich wonls the |dainlill swdre were 
 on the clu (jiie when sent to the defendant, w liich 
 he tleiiie.'i, iiowe'er. Four crosses were on the 
 face of the chei|ue, and some initial letters in tile 
 margin, and these the jilaiiitill stated were the 
 iuitialu of aeleiU ia the bank, nlioui he had re- 
 
 ■ (|uested to initial the woi'ds so introduced : The 
 C'ourt (Sjirigge, C.,) refused to receive this as 
 evidence of a receipt in full, in the alisence of 
 the bank clerk, who should have been called ;,s 
 a witness. Liriiii/KUin v. Udod, 27 Chv. 510. 
 
 XV. Proof after Noticf, to Produce. 
 
 See Od/< 1/ (t al. \. M((.'isi,n ct id. (5 O. P. 108, 
 p. 243. 
 
 XVI. Pr.noF i;v Entries. 
 
 A loan and savings society appointed G. their 
 
 treasurer ; and the plaiutili's :!nd defendant by 
 
 1 two sejiarate bonds became sureties for the due 
 
 ' discharge of the duties of such oibcer. O. made 
 
 ■ default in his olliee, ai.d a suit was instituted by 
 
 the society against all the sureties, which was 
 
 ' compniUiiscd by the plaintill's paying about one- 
 
 ! half of the sum claimed by the society : — Held, 
 
 that in such a case the entries of G. in the books 
 
 of the society were not evidence against the sure- 
 
 ' ties during the lifetime of G. Murniij v. (jibson, 
 
 28 Chy. 12. 
 i 
 j The cases deciding that entries in the boo'-s oi 
 
 an (illlcer are evidence in )iis lifetime against sure- 
 , ties (luestioneil. J^ce Virlarhi J\Iutuul Fire I>i-i. 
 : Co. V. JJavhUvti, <l al., 3 O. P., C. P. D. 378. 
 
 Ill an action against sureties for a town col 
 lector for his default in paying over the sum col- 
 ' leeted by him; — Held, that entries made by tlic 
 collector on his roll, in the discharge of the dutii's 
 of his <iliice, of taxes jiaid to him were cvideuee 
 .igainst the sureties. T/ii- t'orpural'wn nt'tlic Town 
 of WilUnid V. nroini, 4 O. P., C. P. 1). 217. 
 
 After the occurrence of the accident which 
 caused the destruct'-n of the plaintill's lumber, 1>. 
 an eugiiiediiver ■•. the defendants, and who 
 was ill charge of cl.c locomotive (No. 5) on the 
 day the tire occurred, made an entry in what was 
 teiTued the rejiairs book, kept in the defendants' 
 shojis : " Pottom rim of bonnet in stack wants 
 making tight * * Screen wanted in front of 
 ash pan." At the trial P. was called as a witiu us 
 on the part of the plaintill', and proved liis hav- 
 ing made such entry in the usual course of his 
 duties. Per Spragge, (J. J. ()., and Hagarty, ('. 
 ,1. , such entry was properly produced and read te 
 the jury. Per lUirton and Patterson, .J.J.A., 
 such entry or report w as merely a narrative of a 
 past occurrence, or something in the opinion of 
 P. rei|iiiiiiig attention, and in aiij' view .could 
 only be receivable as evidetice ai'ainst the com- 
 ]iany, if at all, n|i(in proof of |J, s deatl . 'J'lif 
 ('lunula CtiUral It. I)'. Vu. v. McIaoxu, 8 A. K. 
 .■jljt. 
 
 Two partners in business (T. k P. O'Xeill) exe- 
 cute '. two mortgages in favour of J. W. W. , assign- 
 ed tlie mortgages to H., by wayofderivative mort- 
 gage, oil the 21st .March, 1877. In.ranuary, 1877, 
 the O'Neills became iiis(dvent,and the plaintill', 
 their assignee, filed a bill to redeem tiles ! mort- 
 gages. After decree W. became insolvent, ami 
 the suit was revived in the name of I", it P., li's 
 assignees, in his stead. On tiio reference, H., 
 claimed so niii"hof the amount iliie on the original 
 mortgages as wmild satisfy his derivative mort- 
 gage, andP.elaiined the rjiiiainder. Against tlieii 
 
25G 
 
 257 
 
 EVIDENCE. 
 
 358 
 
 cLiiins the plaintifiF filed two similar surchargos, 
 one against H., and the other against P. & P. In 
 BUiiiiort of his surcharges the nlaintilf offere«l the 
 foUowini,' es'ulence : 1 the books of the tirni of T. 
 4 H. O'Neill ; 2. the books of W.:— Held, that 
 the books of T. & R. O'Xeill, could not be used 
 against either W.'s assignees or H. Tliat the 
 entries in the boohs v.f \V. were evidence as ad- 
 missions against his assignees, and as to transiic- 
 tions before the SIs^ March, 1877, ayainst II 
 to shew the state of 
 the assignment. Co. 
 IMlc.ml and WaUh 
 ier. 
 
 ing a conveyance as voluntary, even tliough the 
 transaction took place prior to that enactment. 
 ■Sawlers v. MaUhunj, 1 O. R., Chy. D. 178. 
 
 The power of a municip.al cour.cil to close up 
 a road under section 504 of the Municipal Act, 
 whereby any one is excluded from access to his 
 lands, is a conditional one only, anil if another 
 convenient ro.ad is not already in existence, or is 
 not oiiened by another by-law i)asscd l)efore the 
 
 t *!,„ on..,,,,..* ..»■ ^1. . 1 ,(■ p , •^'""^ lixed tor closnig the road, the by-law closinc 
 I tue account at the date ot . , , , ° , , ,,;, •' , , . ° 
 
 'oiot V. Jfolhn.l~I-Ju- part, t he road may be .luashed I he onus of .shewing 
 .8P. R.210.-Taylor,.V«,s- that another convenient road is open to the 
 ^ ' aiiplicant IS upon the coriior.ation. A lams and 
 
 XVII. Evidence of Reputation. 
 
 appncant is upon the corpoiT 
 
 Till' Coriiorntlon of the Townahlp of EaM Whitby, 
 
 2 0. R., Q. B. D. 473. 
 
 Where the defendant, being sued on a pro- 
 7 he locality and extent of a sijuare being in missory note, alleged that the said note was not 
 question. Semble, that this being a matter of a , il'"y stamped before the repeal of the Stamp i» , 
 (luasi public nature in which a class of the people i ""«■ i»td after action brought, althougii he iiad 
 in the neighbourhood wouhl be concerned, evi- j communicated the fact of that omi.ssion to tae 
 deuce of reputation was admissible ; and under I plai'itiHs oefore he was sued, and the plaintiflfs 
 the circumstances set out in the report, it was j ' 
 Held that the square was sutticiently defined by 
 
 such evidence. 
 Chy. U. 349. 
 
 VunKoutjhnet v. DenUon,l O.R. 
 
 XVIII. Pkodcction and'Ad.mission of 
 Evidence. 
 
 1. Onus Probnndi. 
 
 When defendants in a riMlcmption suit on 
 proving their claim in the master's office pro- 
 duced their mortgages and filed an atlidavit 
 verifying their claims, and stating that .?:20, 800. - 
 88 was due them for moneys advanced by them 
 to the mortgagor and secured by the said mort- 
 gages : — Held, that their claim was prima facie 
 proven, and the onus of reducing the amount 
 rested with the plaintiff. Court v. Holland — Ex 
 parte JJoran, 8 P. R. 213. Taylor, ilaster.- 
 Blake. 
 
 The plaintiffs held a mortgage made by the 
 defendant, who covenanted to pay the mortgage 
 money mid interest. Defendant conveyed his 
 eipiity of redemption to A., who 8ubse<iuently 
 released to the plaintiffs for a nominal consider- 
 ation, after striving for a substantial one. The 
 defendant, as part ot the arrangement, gave the 
 plaintiffs his note for some interest. The plain- 
 tiffs having sued on the covenant for payment, 
 the jury were directed that if the release and 
 note were taken by the plaintiffs in satisfaction 
 of the liability on the covenant, to find for the 
 defendant ; if taken under a stipulation that it 
 should not have that effect, to find for the plain- 
 tiffs ; and that in the absence o^ evidence up.>n 
 these points the inference would be that it was 
 taken in satisfaction of plaintiffs' claim, the 
 charge being thereby merged. The jury found 
 for the defendant :— Held, that there was no mis- 
 direction, the onus of proving that there is no 
 merger being upon the plaintiff in such a case ; 
 and the verdict was sustained. North of Scot- 
 land Mortgwie Co. t. Udell, 46 Q. B. 511. 
 
 In actions against solicitors for negligence. 
 See O'Donohoe v. Whitlt/, 2 0. R. 424, p. 39. lie 
 Kerr—Akers and Bull,'29 Chy. 188, p. 40. 
 
 Semble, that R. S. O. c. 109 s. 2 is retrospec- 
 tive so as to cast the onus of disproving the pay- 
 ment of the consideration on the party iinpeach- 
 
 17 
 
 denieil that the defendant had so notified them, 
 and alleged that they double-stamped the note 
 as soon as they had knowledge of the omission 
 to stamp, which was not till after the action 
 brought, and after the repeal of the ."^t^imp Act ; 
 and the evidence shewed that when the note 
 came to the plaintiffs' hands it appeared to be 
 properly stamped : Held, that tiie defendant 
 could not be allowed, upon his own unsupported 
 testimony, in such a case, to escape I'ability. 
 The onus was on him to establish that tiie stamp 
 was not duly affixed, and that the omission to 
 duly stamp was so intelligibly communicated to 
 the plaintiffs that it could be said they acquired 
 the knowledge of the defect at ulie timo alleged 
 by him. Hank of Ottawa v. McMorruir, 4 O. R., 
 Chy. D. 345. 
 
 Defendants, Toronto merchants .engaged plain- 
 tiffs, Chicago brokers, to buy and sell grain in 
 Chicago on niargii'., which the laiti^r did, advanc- 
 ing them money, tor which they sued. I )efendants 
 having refused to settle for losses sustained : — 
 Held, reversing the judgment of Patterson, J. A., 
 that, assuming the State law to be that if the 
 contract was to deal in such a way that only the 
 differences in prices should be settled according 
 to the rise and fall of the market, and no grain 
 be either delivered or accepted, the contract 
 would be a gambling contract and illegal, it lay 
 upon defendants to establish clearly that such 
 was the character of the dealing and this defence 
 not having been clearly proved, jiidgmeut was 
 given for the plaintiffs. liici' et al. v. (/unn et aL, 
 4 O. R., Q. B. D. 579. 
 
 As to proving malice in an action of slander 
 against a public officer. See Dvwe v. Waterbury, 
 6 S. C. R. 143, J). 200. 
 
 In a "debats de comptes" between A.G. (appel- 
 lant) in his (luality of tutor to M. L. H. C. R., a 
 minor, and Dame H. P. (respondent), universal 
 legatee^ of her late husband L. R., who had had 
 possession of the minor's property (his grand- 
 child) as tutor, the following items, viz., £.5,46(>. 
 63 (for stock of goods sold by L. R. to his son) 
 and.'?451.07, and !i?90.7(», for "cash received at 
 the counter," charged by the respondent in her 
 account, were contested. In 1871, L. L. R. the 
 minor's father, married one M. C. G., and by 
 contract of marriage obtained from his father, 
 L.R., two imiuovuble properties, en avauceuieut 
 
259 
 
 EVIDKNCI-:. 
 
 200 
 
 Tli-M 
 
 (Vhoiric. At th'! saiuo time L. I!., tlio f.itln'r, 
 retired finni Imsiness ami left to \j. \,. 1!., liis 
 son, tlie wliiile of liis stiiek in trule, wliieli 
 was vjiliieil at $,"), K'>(). ti.'l, inakiny an inventory 
 thereof. L. L. It. dieil in 187'2 leaving one cliilil, 
 said M. L. II. <". K., and 1.. It., her grand fa tbor, 
 was apiiointed h.rtiit<ir. There was no evideneo 
 that the stock in trade had been .sold by the 
 father and iinrehased hy the son, or that the fath- 
 er gave it to his son. Jlowevei-, when L. It., in 
 his e.iiiieity of tutor to his grandchild, made .an 
 inventory of his son's succession, he charged his 
 son with this amount of ,^r>,4(i().().1 :— Held (re- 
 versing the judgment of the court below), tliat 
 it was for the resiiondentto prove that there liad j 
 been a sale of the stock in trade by L. It. to his ' 
 son L. L. I',, the minor's father, and that there [ 
 being no evidence of such a sale the resiinndont j 
 could not legally charge the minor witli that ■ 
 amount. As to "the other two items, these were 
 granteil to the responilentby the ( "onrt of Queen's j 
 Bench on the ground that, although they had j 
 been entered as cash received at the counter, ; 
 there w.is evidence th.at they had been already j 
 entered in the ledger. The only evidence to ' 
 support this fact was the atKilavit of one Hel)ert, ' 
 the bookkeeper of L. R. tiled with the re(ldition ! 
 de coinptes before notary, i)rior to the institution 
 of this action :— Held, reversing the judgment ' 
 of the court below, that the atfiilavit of Hebcrt . 
 was inadmissilile evidence, ami therefore these ■ 
 two items eoidd not be chargeil against the minor. 
 Oaijnnii v. /'rlnrc, 7 S. (J. It. .SSij. Special leave 
 to appeal to Her Majesty in Council' in this ease I 
 was refused. See .S^ C, 8 App. Cas. 103. 
 
 See I{<(/iiia v. Fee, 3 O. R. 107. p. '243 ; }rorf»n 
 V. NUiitii ,") A. It. 20, p. (53 ; Vin.h'u v. Fm^<r, 
 28 Chy. r)02 ]). 304 ; Bitrb- v. 7'((///"r, 4(; Q. B. 
 371, p. 2S2 ; Johnston v. Chridk, 31 C. V\ 358. 
 
 2. Hell- fancy. 
 
 In an action against a railway company for loss 
 occasioned by fire alleged to have arisen from one I 
 of their engines (No. 5), with a view of shewing 
 that the ongine was defectively constructed, evi- 
 dence was given that on previous occasions when 
 it was in the same or an improved condition, it 
 had thrown out sparks causing tires. I'erSiJragge, 
 C. J. ()., anil Hagarty, C J., such evidence was 
 properly receivable. Tlii' Cnnnda Central R. \V. 
 Co. V. McLaren, 8 A. 11. 5G4. 
 
 3. Otker Cases. 
 
 A former suit had been instituted by the 
 plaintiir which had been dismissed, as the plain- 
 tiff had not acquired the legal estate until after 
 the bill was tiled : — Held, that under such cir- 
 cumstances the question was not res judicata, 
 and (2) that the evidence taken in the former 
 suit and the examination of defendant by the 
 plaintiff therein were .idmissible in the present 
 one, the issue being practically the same. Ad- 
 amson v. Adamxon, 28 Chy. 221. 
 
 As to a note insuifieiently stamped being ad- 
 missible as evidence of a debt. See Cauijhill v. 
 Clarke, 3 O. R. 2t)9. p. 74. 
 
 Where the right of a company to use a traction 
 cnffino on certain highways under an agreement 
 wtih a municipal corporation was disputed :— 
 
 Held, tliat the ti.>'t that the eomp,-iy for several 
 ve ii's after the .s liil agreement useil horse power 
 oidy, w,is not to be overlooked as evidencing the 
 true agreement of the parties. The ('(iri/ora'imi 
 III' the Coiinti/ of York v. The Toronto (irarel 
 iioad and Concrete Co., 3 O. R., Chy. D. 584. 
 
 Overtures of pacification, and any other offers 
 or propositions between litigating parties, ex- 
 pressly or impliedly, made " without ]irejudice,' 
 arc inadmissible in eviilence on grounds of public 
 policy, although the pendency of such negotia- 
 tions as a matter of fact may be looked at. ///. 
 
 As to admissibility of solicitors' correspondence 
 j'.nd reiiuisitions of title in an action for specilic 
 performance. See McClmg v. McCracken, et uj:., 
 3 O. R. 59G. 
 
 XIX. Contradictory Evidence. 
 
 One C. entered into a.'reements with several 
 parties to carry freights for them at certain 
 nameil prices to be paid to the defendant — not 
 mentioning any particular vessels in which tins 
 same were to be carried— and then agreed with 
 the defendant, as part owner and master of vessels 
 in '.vhich the plaintitl's had an interest, at rates 
 considerably below the sums agreed upon. The 
 ilefendant and C. both swore that the arrange- 
 ment had not been made by ('. as agent of the 
 defendant, but for his own benefit : — Held, that 
 the fact of the defendant having rendered an ac- 
 count in his own n.ame and also sued for a poi-tion 
 of the freight, though aided by the other circum- 
 stances mcm.oned in the judgment, was not sutli- 
 cient to countervail the positive denials of the de- 
 fendant and C, that the contracts had not been 
 made in behalf of and as agent for the defendant, 
 freight being primil facie paj able to the master 
 of a vessel, and the cargo need not be ilelivered 
 by him until the freight thereof is ])aid ; although 
 in any other transaction such conduct would have 
 been strong evidence that the defendant was the 
 princii)al contractor. MerchantH' Bank v. Graham, 
 27 Chy. 524. 
 
 See also Mitchell v. Strathy, 28 Chy. 80. 
 
 XX. Corroborative Evidence. 
 
 K . had assigned the moneys due to him by S. : 
 — Held, that K., who was a witness, was not 
 "an opposite or interested i arty to the suit," 
 within the meaning of the Evidence Act, It. S. (). 
 c. 02, 8. 10, and his evidence therefore did not re- 
 (juire corroboration as against the executors of 
 S. WatHon v. Secern el al, 6 A. R. 559. 
 
 Held, that under sec. 10 of the Evidence Act, 
 R. S. O c. (i2, any evidence adduced by a party 
 interested against an executrix corroborating the 
 evidence of the interested party in any particular, 
 must be submitted to the jury, as suthcient in 
 point of law, the weight to be attached to it in 
 point of fact being a matter for their considera- 
 tion. Urr v. Orr, 21 Chy. 397, and McDonald 
 V. McKinnon, 20 Chy. 12, commented upon. Par- 
 ker v. Parker, 32 C. P. 113. 
 
 In this case, which was an action on the com- 
 mon counts against the defendant as executrix, 
 &c., for money paid to the use of the defendant's 
 testator, the transaction arose out of some pro- 
 
261 
 
 EXCHEQUER COURT. 
 
 262 
 
 missnry notes made by the testator and th '. 
 plaintiff, but which the plaintiff alleged ho sigiu I 
 for the testator's aocommodation, and had sub- 
 sequently paid for the testator : — Held, on the 
 evidence, set out in the report, that the plaintitl"s 
 eviilouce was sufficiently corroborated within the 
 meaning of the Act ; and that the count for 
 money paid was supported. Ih. 
 
 Tlie widow of the intestate clai .■".! against his 
 ost;ito a sum of i?700, which sh jgcd he liad 
 ))()rrowed fnmi her after her mai • ,,e, and about 
 ten years before his death, for the purpose of 
 buying a stock in trade. The money was de- 
 jmsited in a bank at the time of the marriage, 
 which took place before the C. S. U. C. c. 73. 
 Kvidence was given in corroboration of the claim- 
 ant to the effect that —" He (Laws) told me he 
 li,id got .?l)00 or .«700 from his wife. She had got 
 a little money. He said he had paid that money 
 for the things he had in the store. This was 
 after he had bought L. out. * * He said his 
 wife had helped him to SCOO or S700. • • I 
 undiirstood he had used the money to buy out 
 the Imsiness :" — Held, affirming the order of the 
 chancellor, reversing the finding of the master 
 at Hamilton, that she could not recover. Per 
 Spragge, C, .and Blake, V. C. The evidence of 
 the widow was not sulHeiently corroborated. Per 
 Proudfoot. V. V. The evidence that the chose 
 in notion was originally hers, and that she gave 
 it to her husbaml, was corrolmrated, and tliis 
 eiirroboration was suHicient to suj)port her own 
 evidence that it was a loan ; but the 0. S. U. C 
 c. 73, gave her the right to assert her proprietor- 
 ship as against her husband, and as incident 
 thereto the right to bring a suit against him ; to 
 which proceedings however the Statute of Limi- 
 tations was a bar, and therefore her remedy was 
 gone. lie TjHwi — Liiu:i v. Ldw.t, 'J8 Chy. 382. 
 
 The testator, father of the plaintiffs wife, 
 suggested to him to purchase a lot of land which 
 was subject to a mortgage, saying that if he 
 would do so, and have the property eoiivej'ed to 
 his (plaintifl's) wife, he would ])ay ofl' the ineum- 
 hr'Hce. The plaintiff in consecjuence made the 
 purchase, and had the property conveyed as 
 sugi,'ested, but the testator refused to i)ay the 
 instalments on the mortgage and the plaintiff 
 was compelled to pay it himself. The testator 
 snbseipiently expressed his regret at having thus 
 acted, an<l promised the plaintiff that he would 
 do better for tbinn ; that he would pay plaintiff 
 .^l.'iO a year for te'i years, and be(|ueatli to his 
 wife SI, 000. I{y the will, however, only .?I00 
 was left to her, and the plaintiff instituteil the 
 present suit against the representative of his 
 father-in-law to enforce such .seiiond agreement, 
 or for payment of damages by reason of the 
 breach thereof. The only direct evidence was 
 that of the plaintiff. At the hearing tiiere were 
 produced two receipts signed by the daughter 
 for 8-(iO anil .'J200, respectively, expressed to be 
 .in account of money left her by her father's 
 will ; .and witnesses swore th.at th(! testator had 
 told them that he had agreed to pay for the 
 place if the plaintiff would take out the deed in 
 nis wife's name, and that he was making the 
 payments as the plaintiff had so taken the deed : 
 — Held, th.at there was sufficient corroboration 
 of the evidence of the plaintiff as required by the 
 statute (R. S. O. o. 02). HaUcran v. Moon, 28 
 Chy. 319. 
 
 When each item in an account against the es- 
 t.ate of a deceased person is an imlependent trans- 
 •action, .and constitutes a separate and indepen- 
 dent cause of action, to satisfy the statute R. S. 
 O. c. 62, 8. 10, some essential corroboration of 
 the interested party's ev^idouce must be adduced 
 as to each item. Cimk v. Grant, 32 C. P. 511 ; 
 Re RosH, 29 Chy. 385. 
 
 The plaintiff claimed to recover .against the de- 
 fendant as administrator of his deceased brother, 
 W. Ct.. two sums, one of SSOO, which she alleged 
 VV. O. received for her from another brother, 
 S. Ct., also deceased ; and the other of §1,500, 
 which she alleged W. G. promised to leave her 
 in consideration of her remaining with him, tak- 
 ing care of and managing his house, as long as he 
 lived. As to tiiu !?800, tlie plaintiff's evi<lence 
 w.as hehl to bo sufficiently corroborated by the 
 evidence, set out in the report, within the mean- 
 ing of the statute, but otherwise .as to the $1,500. 
 Cookv. Grant, 32 C. P. 511. 
 
 See Mi-Knyy. MrKny, 31 O.P. 1, p. 183 ; Mor- 
 ton V. N'lhan, 5 A. R. 20 p. (53. See also Re Mur- 
 ray — Piirdnm V. Miirrni/, 29 Chy. 443 ; Watsoa 
 V. Braihhaw ct al., 6 A. K. fifiO. 
 
 XXT. ExrF.RT EviDEVCE. 
 
 The parties desired the assistance of scientific 
 evidence as to the height of the defendant's dam 
 .and the effect of raising it. The court (Proud- 
 foot, J.) ajjpointed .an engineer to inspect and 
 report thereon, reserving the costs until his report 
 shouhl be obtained. Jfawkiiin v. Mahaffy, 29 
 Chy. .320. 
 
 Remarks upon the impropriety of receiving 
 the opinions of surveyors as experts u.s to the 
 proper mode of making a .--urvcy under a St.atnte. 
 See Corporation of Stntjhnl v. Bel!, 6 A. R. 273. 
 
 Wi ore the opinions of experts on foreign law 
 .are c 'i.'licting, the Court will examine for itself 
 the (iucisions .and text books of the foreign 
 country, in order to arrive at a satisfactory con- 
 clusi(m. Rice el al. v. Gunu, el al., 4 O. R., Q. 
 B. D. 579. 
 
 As to costs incurred for expenses of surveys 
 and other special work of that nature in order 
 to ((ualify surveyors to give evidence. See Mc- 
 Gannon v. Clarke, 9 P. R. 555. 
 
 See also Moi>er v. Snarr. 45 Q. B. 428. 
 
 EXAMINATION OF.IUDGMKNT DEBTORS. 
 To ArrAcn Debts — See ArrAciiJiENT ok Debts. 
 
 EXCHEQUER COURT. 
 See Petition ok Rkiiit. 
 
 Semble, per Strong, ,1 ., there is notii..ig in sec. 
 03 of the Supreme and Excheiiuer Court Act con 
 fining appeals from the Exctieiiuer Court to a 
 recourse .against fin.al judgments only, the word 
 used being "dticisiou," which is applicable as 
 well to rules and orders not final aa to final deoi- 
 aions. Danjoti v. Marquis, 3 S. C. R. 251. 
 
263 
 
 EXECUTION. 
 
 2C4 
 
 Ai>plication for security for costs. 8eo Wood 
 T. Tlie (Jucai, 7 S. C U. 031, p. 155. 
 
 k •-^■"" 
 
 I. 
 .II 
 
 III. 
 
 IV. 
 
 V. 
 
 VI. 
 
 Vll. 
 
 riiL 
 
 IX. 
 
 X. 
 
 XI. 
 
 XII. 
 
 EXI'XX'TIUX. 
 Immeiiiate lOxEciTio.s, 2G3. 
 
 Tl.MK (IK ISSLINU, ■_*(!!{. 
 
 FiEiM Facias ((Jouiw). 
 
 1. Wliat umuitn/f to a Sihure, 204. 
 
 2. Timi>. of OjiiriUivii, '2t'A, 
 
 3. Pruiitrty liahk to Stizttre, 264. 
 FiEKi Faha.s (Lands). 
 1. I'ro/iifti/ liable to Seizure, 264. 
 Sale of Lam) bndeii Execution, 265. 
 Venditioni Expona.s, 265. 
 EyiiTABLE Execution, 265. 
 Renew IN (5 Wkit, 266. 
 Abandonment, 266. 
 Piuokity of Execctions, 266. 
 Setting Aside Execution, 266. 
 Other Writs of Execution. 
 
 1. Ca. Sa. — See Cai-ias ad Satisfa- 
 ciendum. 
 
 2. Division Court Exicutioiis. See Divi- 
 sion Courts. 
 
 3. Scuuedralion—See Sequestration. 
 Interim-eader Pruceldinus — See Is- 
 
 TERl'LEADER. 
 
 Landlord's Claim for Rent— 5«e She- 
 riff. 
 
 Sueruf's Duty and Liability — S^e 
 Sheriff. 
 
 Poundage— &<; Sheriff. 
 
 I. Immediate Executiov. 
 
 Where it appears the defendant has no defence, 
 and has made, or is intending to make a fraudu- 
 lent disposition of his property, or is so dealing 
 with it as to einharrass the ))laintiir in reaching 
 it by execution, the court will, on motion, under 
 rule 324, upon a proper case being made, order 
 judgment and immediate execution. In the event 
 of other executions being obtained against the 
 debtor's pnipcrty befoi'e the time at which the 
 plaintiff woulil be entitled to issue executions as 
 on a judgment in default of appearance, an<l the 
 amount realized being insutlicient to satisfj' all 
 parties, a ratable division should be made. Kin- 
 loch V. Morton, 9 P. R. 38.— Osier. 
 
 II. Time OF Issuing. 
 
 An execution issued on the same day that a 
 judgment on default of appearance, contrary to 
 Order 9, Fule 4, is signed, is an irregularity only, 
 and not a nullity. MnedunaM, et at. v, Crond)ie, 
 tt al, 2 O. R., Q. B. D. 243. 
 
 Ab to the time of issuing execution ai^aiust 
 Mutual Insurance Companies. Sou Lownon v. 
 Canada Fui-mer'e Mutual Ins. Co., 8 A. R. 613. 
 
 XIIL 
 
 XIV. 
 
 XV. 
 
 XVI. 
 
 III. Fieri Facias (Goods), 
 
 1. WIkU amounts to a Seizure. 
 
 As to what constitutes a valid seizure under a 
 condition in a policy of insurance providing that 
 if the insured property should be levied upon or 
 taken into possession or custody under any legal 
 process tlie policy should cease to be binding. 
 See M(iy v. T/n Slaudiird Fire [ns. Co., 5 A. It. 
 605. 
 
 2. Time of Operation. 
 
 A sherifT received two executions against one 
 M.'s goods, on the ISth January, and 15th Feb- 
 ruary, respectively. He made a formal seizure 
 on tile delivery ot the lirst writ, but left no one 
 in possession, and the execution debtor remained 
 in possession, and carried on his business as be- 
 fore the seizure. There had been a stay on this 
 writ by the solicitor for the execution creditor, 
 but on the delivery of the second writ the sheriff 
 was directed to proceed on both. On the 6th 
 March, the goods, consisting of the whole of the 
 execution dei)tor's stock in trade, were sold by 
 the execution delttor to the plaintiffs, who re- 
 moved them to their own place of business. On 
 22nd March, the sheriff seized all the goods then 
 in the plaintiffs' possession, which he had receiv- 
 ed from the execution debtor, as also certain 
 goods of the plaintiffs which he claimed to take 
 in lieu of goods received from the execution 
 debtor and soM by pLiintill's. The sale to the 
 plaintiffs was found to be bona (ide, and for va- 
 lue, and without notice of the executions. In 
 replevin for the goods : — Held, Wilson, C. .1., 
 dissenting, that the sheriff was entitled to the 
 goods ot the execution debtor then in plaintiffs' 
 possessiim ; but not to the goods taken by the 
 sheriff in lien of those sold by the plaintiffs : that 
 there w.as no abandonment of the executiiins, 
 nor any such conduct on the part of the sheriff 
 or the execution creditor as to estop them from 
 asserting that the executions were in force. On 
 the sheriff making his seizure on the 22nd March, 
 the plaiutiti' gave him an undertaking to answer 
 for all goods sold by him thereafter, if the slie- 
 riff shoidd bo held entitled to the goods : — Held 
 under a cimnter-claim setting up this undertak- 
 ing the sheriff was entitled to recover the value 
 of the goods sold by the jilaintiffs after tlic 22nd 
 March, and before the issue of the writ of reple- 
 vin. I'attersun el al v. MeKellar, 4 O. R., C. P. 
 D.407. 
 
 3. Property liahle to Seizure. 
 
 See Oliver v. Xeu-housf, 32 C. P. 90 ; 8 A. R. 
 122. 
 
 IV. Fieri Facias (Lands.) 
 1. Property liable to Seizure. 
 
 Execution against husband and wife. — Sepa- 
 rate Estate. — Tenancy Ijy entireties. SeeUriffin 
 v. PatterMun tt uj; 45 Q. 11. 536. 
 
 Four persons joined in executing a mortgage 
 of their joint estate, and snbse(iuontly the in- 
 terest of tliree of them was sold under execu- 
 tions at law : — Hehl, that the sale was inoper- 
 ativ>; ; that the owner of the eijuity of redemp 
 
2G5 
 
 EXECUTORS AND ADMINISTRATORS. 
 
 265 
 
 tion had a right to redeem ; and that the j ^r- 
 fliascr at the sheriff's sale, who >'a9 als.) the 
 iimrtijagee, having gone into possi sinn of the 
 iiiortifage est.ato, was bound to account for the 
 rcntsantl profits. VroiiHV.Vha7nherliii,'21 Chy.?t'-)\ . 
 
 Where R. assigned a mortgage to ^I. to secure 
 iiiynicnt of two notes of lust amount tliau tlie 
 mortgage debt, and M. liaviiig procured an as- 
 signment to lumsclf of a judgment against 1{., 
 the sheriff, jiursuant to writs issued unde; the 
 sai<l judgment, seized the mortgage so assigned, 
 and M. refused to execute a re-assignment there- 
 of to R., until not only the amount due on the 
 notes, but also the balance due under the mort- 
 gage was paid :— Held, that K. was entitleil to a 
 re-assigninciit on payment of what was due on 
 the notes only, for the plaintiff^s interest in the 
 uiortg.agc was not properly exigible by the sheriff 
 under K. S. O. o. (iG. Koss c. ,Sim[)son, "iH C'hy. 
 ;V>2, distinguished, Jtiimohr v, JUarx, 3 O. 11., 
 thy. D. 107. 
 
 V. S.VLK OF L.\XD UNUEU E.\.ECUTIOX. 
 
 P. created tliree several mortgages on separate 
 portions of his estate, in all about 140 acres, 
 estimated as wortli )?(i,000, subject to incum- 
 brances amounting to .?3,500 and interest. ih\e 
 ol the mortgages was in favour of the defendant 
 M., who subseiiuentlj' acquired the interests of 
 the otiier two mortgagees. After the creation 
 of these mortgages, P. executed a deed of trust 
 of the wh(de property in onler to deieat a claim 
 ot title set up to 10 acres by one 8. Default was 
 made in payment of M.'s mortg.agc, who insti- 
 tuted proceedings at lawand recovered judgment, 
 on which h ■ sued out execution and under it the 
 sheriff (after the defendant ^I. had so ac(piired 
 the other mortgages) pnjceeded to a sale of the 
 property, which he offered in three <listinct par- 
 cels, and M. bid for ami became the pui'(dias(^r 
 of all at sums amounting in the whole to .'?1'0. 
 The eestuis (jue trust thereupon lile(l a bill to 
 rei^em, alleging that the salt; to M. had been at 
 a gross undervalue, and praying to have the same 
 set aside , the court, however, refused the relief 
 asked with costs, l)eing of opinion that the deed 
 of trust was fr ludulent, anil that the \)rice re- 
 alizeil was large, considering that it was a 
 sheijiff'ssale. I'arrv. Moiilijoimr;/, '27 t'hy. 521. 
 
 The land of a te.'stator or intestate is liable to 
 be siiM only for his debt, and where it is shewn 
 that the judgment was not in fact recovered in 
 respect of .such a debt, but that the cxe<Mition 
 creditors never were creditors of the deceaseil, a 
 sale of the land under it caniu)t be supported. 
 Find V. On- ct (il., (i A. 1{. (il)0. 
 
 tiff, the other outstanding in other hands. On 
 application of plaintiff for jmlgment for?200an(l 
 interest, and for a decree for sale of the equity of 
 redemption :— HeM, on the authority of Karr v. 
 Styles, 2t) Ohy. .SO!t, tliat the plaintiff could have 
 judgment as asked, notwithstanding that in this 
 case there were no fi. fas. in the sherifTs hands. 
 Johnson v. Biunett, 9 P. R. 337.— Proudfoot. 
 
 VITI. RKXEwrvo Writ. 
 
 Writs of execution were issued on the 12tli 
 Deceml)er, ISSl, in Toronto, .ami forwarded to 
 the sheriff' of an outer county. On the ilth De- 
 cember, 1882, the plaintitl wrote to the sheriff 
 to forward the writs f<)r renewal, and on the lltli 
 I)eeend)er telegraphed him to the like effect. On 
 the same day the plaintiff filed a praecipe requir- 
 ing the renewal. The writs were received on 
 the 12th December. On an applicatiim for an 
 order for leave to renew nunc pro tunc it was 
 held that the delay was not the fault of the 
 sheriff or other officer of the couru, and that 
 there was no power to make the amendment. 
 Loii'^nii V. CiiikkIii F'trmers Mutual Iii.i. Co. 9 
 P. R. 309.— Dalton, MoKter. 
 
 IX. Ai!ANUONM.;nt. 
 
 See Patterson, et al. v. McKvllar, 4 O. R. 407, 
 . 204. 
 
 X. Priority of Execptions. 
 
 The connnon law rignt a^ to the priority of an 
 execution creditor of a lunatic, who has an exe- 
 cution in the hands of the sheriff before the 
 lunatic has l)een declared such, will not bo inter- 
 fered with by injunction restraining him from 
 realizing under his writ. In re Grant, 28 Chy. 
 4.57. 
 
 XI. Settin(! Aside Execution. 
 
 The plaintiff tiled his bill on the 14th March, 
 1874. On the 31.st, an attachment in insolvency 
 was issued by defendant against plaintiff. The 
 ' plaintiff's bill was dismissed, with costs, in Oc- 
 I tober, 1874. Defendant proved against the cs- 
 I tato for the costs of the suit, but iliil not take 
 I his dividend, and took no further steps to re- 
 I cover his claim until after the order fin- discharge 
 I of plaintili'(2.">tii May, 1877), when he issued ex- 
 ecution. On tlie application of the plaintiff, 
 Spragge, ('., refused to set aside the execution, 
 hohling that defendant was entitled to issue it, 
 and that the proving against the estate for the 
 costs when it was not legally provable, did not 
 
 VI. VKSDriroNi Exi'ONAs. 
 
 SlicriflPs sale under ven. ex. Proei;s verbal, 
 what it should contain. Art. ()3S, ('. (". P. ^<ee 
 M'-iitnnl Ldini anil .Murtjo'/c Co. v. FiuitvHX c.t 
 "'..3S. ('. R. 411. 
 
 VII. Equitable Execution. 
 
 Plaintiff claimed a debt of §200 from the de- 
 fiiidant. Defendant did not appear to the writ. 
 Tin? only property the defendant owned was the 
 equity of redemption in certain lands, on which 
 there were two mortgages, one held by the plain- 
 
 operate as an estoppel in pais. 
 snuth, 8 P. R. 2S(i. 
 
 IStecenmn v. Sex- 
 
 EXECUTORS AND ADMINISTRATORS. 
 
 I. Prob.vte and Letters of Administra- 
 tion, 207. 
 II. RioHTs, Authority, and Duty. 
 
 1. Kemnneratiim, 267. 
 
 2. Dihls 'tne to thnn bj the Testator, 26& 
 
 3. Other Cases, 268. 
 
 
2fi7 
 
 EXECUTORS AND ADMINISTRATORS. 
 
 2G8 
 
 i;;'4uU ,t 
 
 4. As TrilKtres— See TkI'STS AND TnUK- 
 
 TKKS. 
 
 III. LlAUlLITlES. 
 
 1. For Ada v/ each ol/nr, 2G9. 
 
 2. / //(^;v.^^ 270. 
 
 3. Fur Coiilx. Sou p. 273. 
 
 IV. I'AHTiKSTi) Suits— .SVc rLK.MJixc;. 
 
 V. Actions and Pkockkdincis Auainst, 270. 
 
 VI. EVU.EXCK INliKK K. S. O. c. (i2, s. 10— 
 .SVc J'^viliKNci:. 
 
 VII. Defkikncy of A.KSETS, 271. 
 
 VIII. LAMiJS AS A.s,sets. 271. 
 
 IX. ExFtiTOK HE .SOX Tort, 271. 
 
 X. Ad.mimstijatiox Srns. 
 
 1. AjijtliculiuH fur, 271. 
 
 2. Pliadiuij and Practice, 272. 
 
 3. CiiiU and CommUmon, 273. 
 
 4. Advuiiist ration ad litt ni, 275. 
 
 I. Proiiate and Letters of Administration. 
 
 Out' 1). dyiiiL' (Idmiciliiil aliioiid, IJ., a citditor 
 of her estate, olitaiind ktttr.'i of a<'.iuiiiistiati(iii ' 
 there. Su1)st'iiULiitly >S. , as aiiijoiiitee of If., and 
 ■« ith his consent, aiijilicd here for letters of ad- 
 uiinistration to he granted to liim l)y the .Sur- 
 rogate Court. K., however, residing at 'J'orouto, 
 and {18 next of kin to Ji., also aiiiilied here for 
 udniinistration to H.'s estate. S. now ajujlied to 
 have the matter transferred into tliis Court, or 
 for a writ of jiiohihition to the Surrogate .Judge 
 preventing him granting letters to E., and a 
 uiandaniiis ordering him to grant tiiem to S : — 
 Held, failing any proof as to the law in Maine, it 
 must be assumed to agree >vith the law here, 
 aecording to which the court will not grant ad- 
 ministratitin to a creditor, so long as one having a 
 better claim, as is the case with the next oi km, 
 ia willing to act ; anil, inasmuch as the next of 
 kill did not appear to have been cited before the 
 court iu Maine, the status of the creditor who ob- 
 tained admiiiistratii'ii there, or oi his appointee, 
 was not such as to compel the Surrogate Judge 
 here to pass over the next of kin. 1 he appoint- 
 ment of a creditor as administrator is not as of 
 riuht, but rests in the discretion of the Judge 
 wf o ajjpoints. and that cannot be interfered with 
 by .ny peremptory writ ; and It. S. 0. c. 46, ss. 
 3'?, 36 do not better the claim of a creditor. 
 Browne v. Phillips, Ambl. 41 (J, followed. Ke 
 Hill, L. E. 2 P. & D. 89, distiuguished.— i^e 
 O'Brkn, 3 0. K., Chy. D. 326. 
 
 II. RiouT.s, Authority, and Duty. 
 
 1. Jfciniimration. 
 
 Where there is a beijuest of a share of the re- 
 siduary estate to executois it is not to be inferred 
 that the bequest was given in lieu of conipcnsa- 
 tioD, as in the case of a legacy of a definite sum, 
 but it is neverthekss one of the eUmeuts to be 
 considered in dealing with the question of com- 
 pensation :— Held, that in this case, the execu- 
 tors were entitkd to compeutation, nothwith- 
 
 standing a bequ.^st to them of a share of the resi- 
 due, because the amount of the residue was, when 
 the will was made and after the testator's deatli. 
 a matter ol extreme uncertainty ; nevertheless, no 
 percentagea should be allowed on the share ol the 
 residue, which the executors took under the resi- 
 duarv el.'iuse in the will. JJoi/m' llotni- of thv L'itij 
 of J J ami/Ion r. Livis it «/., 41). 1!., Chy. \). IS. 
 
 'J'lie fact that, an account being taken in the 
 n)aster's ( llicc ].ui.'-uaiit to a decree in an admin 
 istratiiJii suit, a lialaiice has been found again.<t 
 an executor, some of the items of which a>'_' the 
 result of a surcharge, is not alone suCicient to 
 disentitle him to compensation undci K. S. O. c 
 107, s. 41. Skrtirriijla <t al r. Lhjk, 1 O. 1!., 
 Chy. D. 375. 
 
 See also Subhead X. s. 3, p. 273. 
 
 2. D<hts due to fla-m by the Testator. 
 
 Where the estate of a deceased person is insol- 
 vent, the provisions of the Act respecting trus- 
 tees displace any right on the part oi the executor 
 to retain in full ; anil as against an executor claim- 
 ing as creditor, any other creditor may set up 
 the Statute of Limitations. Jie JioKx, 29 Chy. 3Sr>. 
 
 3. Other CatieA. 
 
 About 1837 Andrew McMinn devised his lands 
 to his wife, Mary McMinn, for life, with remain- 
 der to Maria Kearney. Letters of administration 
 with the will annexed were granted to the widow. 
 At the time of the testator's death the lands 
 were mortgaged for £150. A suit to foreclose 
 this mortgage was instituted after the testator's 
 death, and it was alleged that under it a fore- 
 closure was obtained, and the property sold, and 
 jiurchased by the administratiix for i'90r). There 
 was evidence that the administratrix recei>ed 
 personal assets of the totator sutiicient to pay 
 oil' the mortgage, had she chosen so to apply 
 them. The sum o: £725 was lent to the admin- 
 istratrix by Ann Kean, her daughter by a former 
 marriage. The administratrix then sold the pro- 
 perty to the public authorities lor £l,7r)0, out of 
 whiehshe paid her daughter £'1C0. Prom 18r.8the 
 daughter, with the leave of the administratrix, 
 occupied about one-i|uarter of an acre of the land, 
 until, in 1873, under the authority of an expro- 
 priation Act, she Avas ejected from it, tlie commis- 
 sioner taking in all three acres aiid three tinth.-- 
 of this pro'icrty, the balance being in the occujia 
 tiou of Maria Kearney and her husband, Prancis 
 Kearney (theajipellants.) These three acres and 
 three tenths were appraised at ?!'_',310, and that 
 sum was paid into court to abide a decision, as 
 to the legal or equitable rights of the parties 
 1 espectively. Ann Kean claimed a title to the 
 whole of the land taken, under an alleged jiarol 
 agreement with her mother, that she should have 
 the land in satisfaction of £325, the residue un- 
 jiaid of the loan of £725, and obtained a rule 
 nisi for the payment to her of the sum of .*2,;il0, 
 the amount awarded as compensation lor the 
 land. In May, 1872, the administratrix exe- 
 cuted an informal instrument under seal, pur- 
 porting to be a lease of her life estate to the ap- 
 pellants in the whole property, reserving a rental 
 of §80 ft year and liberty to occupy two roi ins iu 
 a dwelling house then occupied by her. Cn a 
 motion to make this rule absolute, veveral ath- 
 
269 
 
 EXECUTORS AND ADMINISTRATORS. 
 
 270 
 
 tbe i-fKi- 
 ns, mIioii 
 
 'h (It'iltll. 
 
 elc'ss, no 
 ire ot the 
 tlio ifsi- 
 ' the City 
 1). IS. 
 
 ill the 
 iulliiili 
 agiiiii.it 
 
 ll iVV tl.i- 
 
 iciiiit to 
 S. O. 
 1 O. 1!.. 
 
 iliivit<< were liled, including those of the appel- 
 liiiits. On the 18th January, 1875, the niiittiT 
 MiiH refurreil to a nuister, to take evidenue and 
 ivport thereon, subject to such report being 
 iiiodilied Ity the court or a judge. The master 
 roportetl that the appellants had the sole legal 
 and e(|uitable rights in the property. On motion 
 to oonfiriii that report, the court made an order 
 apiiortiiiiiing the Jif2,310 between Ann Kean and 
 till' ajipeilants, the former being <leclared entitled 
 to be paid jjil,015.(>l, and the latter, on tiling the 
 w ritteii consent of Aire. McMinn, the residue of 
 tlie S!2,.'<10:— Held, onapjieal, that the adniinistra- 
 tri.x, having personal assets of the testator sutii- 
 ticnt to discharge the mortgage, w.-is bound in 
 the due coi'ise of her administration to discharge 
 said iiicuinlirancc, and that the parol agrceiueiit 
 made by her with her daughter was null and 
 void. Kiarniy v. Kean, .3 S. 0. 11. 332. 
 
 Where a testator devised to,his wife for life a 
 parcel of land "with the power of sale <it any time 
 (luring her life subject to the consent of my exe- 
 cutors." Three executors were .appointed by the 
 will, one of wlumi died. A contract for sale of 
 p irt of the land having been entered into, it w.as 
 ol)jected by the purchaser that the consent of the 
 two surviving executors was not suHicient : — 
 Held, that in the contlieting state of the authori- 
 ties uiMiii the question the title was not one 
 which the court could force upon a purchaser. 
 Ik Mi-yabb, 1 O. 11., Chy. D. <J4. 
 
 III. LlAUILlTIE-S. 
 
 1 For Actx of each other. 
 
 .1. 1?., sr., and S. D., of Montreal, had been 
 exccutoi-a of 0. B., who die<l in Montreal about 
 )>S44. S. D. proved the will in Ontario. Tlie 
 plaiiitill's (two infants) were solely entitled un- 
 der this will. .J. li., sr., died in Montreal in 
 KS(i!>. T. B. and .J. B. , jr., were his executors, 
 and Inith proveil the will in Ontario, but T. B. 
 alone acted as executor, J. B., jr., having given 
 him a power of attorney to act for him in all 
 matters rel.ating to the estate. The plaiiitill's 
 and T. H. and J. B. jr., were e.ich entitled to a 
 one-third share under the will of J. B., sr. A 
 suit was brought for the administration of both 
 estates, and a receiver appointed. In taking 
 tlie accounts before the master .S. D.'s attendance 
 was dispensed with, as it appeared that none of 
 the assets of C. B. 's estate in Ontario had come 
 to his hands. The master found T. B. and J. 
 B., jr., Mho did not appear or lilc any accounts, 
 indebted to the estates in about .'?5I,()00. In 
 default of evidence to shew that any of the 
 r.ssets come to their hands formed part of C. B. "s 
 estate, the master further found that the whole 
 formed part of J H., sr.'s, estate. The decree 
 ordered tiie exec 'i to distinguish the assets 
 of each estate, an<l notified them that in default 
 tlie whole would Ije taken to belong to the estate 
 ot J. B., sr. T. B. having died, the suit was 
 revived. J. B., jr., applied to the court for 
 leave to open and retake the accounts, on the 
 grouud that he had been kept in ignorance of the 
 luoceedings by his co-executors. Leave was 
 given him to surcharge and f.ilsify. J, B., jr., 
 now distinguished the assets of the two estates, 
 and sought to be relieved from liability as to the 
 estate of C. B. , on the ground that he was not 
 executor of that estate: as to the J. B„ sr.. 
 
 estate, he also sought to be relieved in sever.al 
 respects. The .Ma-^ter's judgiiieiit is upon these 
 points: — Held, that T. B., and J . B., jr., did not, 
 by proving the will of .J. B., sr., become execu- 
 tors of ('. B., as .1. B. , sr., was not the sole or 
 surviving executor of C. B. : Held, that J. B., 
 jr., was lialde for the nnmeys of .1. B., sr.'s, 
 estate, come to" the hands of Thomas, whether 
 before or after the proving of the will, or i)efore 
 or after the power of attorney : Held, that the 
 writ of attachment or registration issued in (Que- 
 bec did not affect the assets in Ontario : Held, 
 that as the Ontario Bank .shares, though sub- 
 scribed for at Montreal, and at one time registered 
 there, were transferred to ISowiuanville during 
 the testator's life, and appeared in the stock re- 
 gister there only, they are Ontario assets. Jiluutn- 
 Jitld v. Brooke, 8 P. "ll. 2(i(i.— Taylor, Mmhr. 
 
 H. & C. were appointed executors. H. took 
 upon himself the actual management of the 
 estate with the knowledge and consent of, but 
 not under any express agreement with C. H. 
 applied a sum of money to his own use, but of 
 this C. was not aware. The will contained the 
 usual indemnity clause exonerating each from 
 liaijility for the other ;— Held, that (J. was not 
 liable for the sum appropriated by H. Klixj v. 
 Ililtuii, 29 Chy. .181. 
 
 2 For /lUeresl. 
 
 Held, that the exccutois, in this ca.sc, should 
 be ciiarged with interest uj'oii the residue in 
 their hands after the time wlicn it was distribut- 
 able anil the annual rate of interest charged 
 accordingly upon it from the time when it might 
 j)roperly have been distributed, or appnuu'iated, 
 down to the time of its actual |iaymciit, or if not 
 yet [laid down to the [U'csent time. /Joi/i' llunic 
 I if tin Ci/i/ of IlitinUtun V. Lfivis it «/., 4 O. ll., 
 Chy. D. 18. 
 
 See iMcCunlle v. Moore H nl., 2 O. \\. 229, p. 
 274. 
 
 V. Actions .\nd I'ltocKKDisfia AfJAiNsT. 
 
 The Beferei! in Ciiambers has no jurisdiction 
 to make an order for ]iaynient into court by an 
 executor or admiiii:«trator of aminints admitted 
 by him to lie in his hands. Iti- < 'iirri/ — II riij/it v. 
 Ciirrij — Curry v. Cnrnj, 8 P. K. 340. — Stephens, 
 Jiifiri'c. 
 
 An agreement to make a will in favour of an 
 adopted child may be enforced against the per- 
 sonal representatives of the obligor. See Itoherts 
 V. //,(//, 1 O. R. 388. 
 
 The master has authority to take the account 
 with rests, under the ordinary reference, as 
 against an executor, but where he declines to 
 • '■ vrge the executor in this way, if it is intended 
 to appeal, he sliould be re(|uired to report the 
 facts to enable the court to determine on the 
 propriety of his decision. Ouiere. wliullier it i.s 
 not the nntre iirojier course to bring the matter 
 up on further directions with all tiie materials 
 for consideration spiead out on the report, rather 
 than to appeal in such a case. .V/Vn irrUjIit et al. 
 V. Liy>,, 1 O. B., Chy. D. 37iJ. 
 
 (!. having dissidved partnership with M., by 
 the terms of the dis.solution hiM cert.iin land 
 subject to a liea of i*525, to be paid by M. M. 
 
 
271 
 
 EXECUTORS AND ADMINISTRATORS. 
 
 i72 
 
 
 then arraugcil ;i hhIc to ('. for l?'2,2r>0, inti^nliii;,' 
 to <I(;fiaii(l any cuiiniaMy wlin wnulil liiiil SI, I'J.'i, 
 on tin: security of tlici laml (it bi'iny rually wortii 
 about i^lHMII, and drow mi a ri;L'(:i|)t for l?l,l">(), 
 reprcHuntiiii! that sum as lii-inj,' part ])aynii:nt of 
 tlio oiiiisiiU'ration money, wliidi (1. sii;n('il. (!. 
 8ulisi!i|UL'ntly i-'xcciitcil a eonvuyi'.ncc with 8-,-r)() 
 insertiMl as tin; cnnsiilcration, nml ili'iiositcil it 
 with his Biilititor as an escrow, to lie ilclivcrcd 
 lip on payment of his S'>-") lien. It ainicarod <i. 
 bad since die<l. and S. was appointed liis ad- 
 ministrator. M. and ( '. by means of an over- 
 valuation and certain misri'pr<sentations, one of 
 which w.iH the production of (i.'s receipt, ol)- 
 taineil a loan of .-^l,!'-'.") from the plaintitl's to ('., 
 and out of the i)roceeds ])aid S. the !^'>-'>, anil 
 took u]) the deed. At tlie tri.il it was shewn 
 that the plaintill's were aware of the death of (1. 
 before tluy acted on or even knew of the e.xist- 
 enue of his receipt, and that .S. knew nothini; of 
 the transaction except that he was entitled to 
 the lien for .•;!.")'_'.'• : — Meld (reversing; the judLjment 
 of I'roiidfoot, .1.), that the plaintitl's could not 
 recover aj,Minst S. as rejiresent.ative of (i., for no 
 cause of action existed auainst (i. at tlie timu of 
 bia death, and S. had done n<» wronj,'. In the 
 absence of tiduciary relationshii) no recovery can 
 be had .ai^ainst the representativi's of a deceased 
 person who is charged with fr.iud unless i)rolit 
 has accrued to the wrongdoer'.s e-it.ate. I/iniiil- 
 ton I'rnriili lit A' Lmm Soci'ly v. Curiull, 4 O. ]{., 
 
 Chy. I). (;•-';{. 
 
 See also Davidson v. (Wiver, 29 Chy. 433. 
 
 VII. Dkfu'iency of A.ssf.t.s. 
 
 The \\. S. O. c. 107, a. .'10, which enacts that on 
 the administration of the estate of a deceased jier- 
 8on, in ease of a deficiency of .assets, all debts 
 shall be paid pari passu, not only abolishes privi- 
 lege among (M-editors, but [)laces them in the same 
 position with n spect to each other .as legatees ; 
 and a creditor receiving payment in full, either 
 HI an action against the executor or by the volun- 
 tary act of tlie latter, must refund the excess 
 above his proportionate share ;it the instance of 
 otliercredit(U's. A secured creditor need not bring 
 Ilia security into hotchpot as a condition ]irecedent 
 to ranking on tlie estate, his lien being expressly 
 preserved hy the .Vet. t'/nDnhfrliii v. Chirhel ill. 
 ISf). I (). !{., Chy. 1). ; aliirmed on aiipeal, !> 
 A. U. !273. 
 
 Vllf. Lands as Assets. 
 
 The land of a testator or intestate is liable to be 
 sold only for his debt, and where it is shewn thiit 
 the judgment was not in fact recovered in res])eet 
 of such a debt, but that the execution creditors 
 never were creditors of the dece.ased, a sale of the 
 laml under it cannot be supjiorted. I'nal v. (>/•/• 
 et ol., tJ A. U. (I'JO. 
 
 IX. ExEtTToii i)E SON Tour. 
 
 See Re VoUun—Jt'islin- v, Vollot), 8 I'. U. 542, 
 p. 272. 
 
 X. Ad.MINI.STRATION Sl'IT.S. 
 
 1. AppUcalion for. 
 An administration order was grant(!d l)y the 
 master at Chatham under U. (). G38, while a suit 
 
 was pending for the conatriictioii of the will of 
 the testator, in which adininistrati(Ui was asked, 
 and in which the executors were charged with 
 misconduct, iind before a year had ela[(sed since 
 the death of the testator ni;on apiieal proceed- 
 ings before the master were atayeif, and special 
 directions given as to the administration as set 
 forth in the order on appeal. //i ijiruoil v. .SVo- 
 wriijht ct III., 8 I'. U. 79.— Spragge. 
 
 A creditor of an intcst.ate .served notice of mo- 
 tion for an adniinistr.ation order under (i.O. (i;{8, 
 on D.'a widow and administratrix. The widow 
 then serveil tv similar notice n|)on the beirs of 
 her husband, and tiled atiidavits alleging a deli- 
 eiency of the ]iersonalty to pay debts : that cre- 
 <litors were suing, and also tiled a consent of tiie 
 adult heirs to .an order in her fas'oiir. The mas- 
 ter at (,'hatham gr.anted an administration order 
 to the widow, and, on appciil, I'roiidfoot, V. C., 
 held that he was right, lie Dmiiiiou—Dritijijim 
 V. DriK/iinii ; lie Draqijon — Alii'ltv. JJraiii/oii, 8 
 
 I'. H. tm. 
 
 When a claim ag.ainst n deceased's estate is one 
 arising out of a contract of 8uretyshi|), the court 
 will not, unless by consent of all parties, make 
 an administr.ation decree except on a bill tiled. 
 Seinble, that administration of an estate will not 
 be ordered by the court where no legal personal 
 representative has been apjiointed or dispensed 
 with, though an executrix <le son tort is befiu'C 
 the court. Itr ('nl/on—FiKlier v. (Mlon, 8 I'.H. 
 542. — I'roudfoot. 
 
 An order ni.ay be obtained under the general 
 orders for the administr.ation of the personal es- 
 tate of the testator by the personal representa- 
 tive of a legatee .as well as by the legatee him- 
 self. Stiujmjii V. I/ornr, 28 Chy. 1. 
 
 An .administration of an estate in which in- 
 fants were interested, w;is made on the mere 
 suggestion of their next friend that it would be 
 tor their beiietit, without going into the merits 
 of the case between the pLaintitl' and thedefeiul- 
 aut, the executor. He WHkoh — Lloyd v. Tkh- 
 honii; 9 V. U. 8!t. — I'roudfoot. 
 
 An order for the ,administrati(m of an estate 
 of a deceased person was refused, on the ground 
 that 12 months h.ad not elapsed from the death 
 of the deceased, no special circumstances being 
 shewn. Ovat v. Griiiit, 9 P. II. 211. — Boyd. 
 
 In .an administration matter under (J. (). Chy. 
 (i48-(i49, the plaintitl' claimed to be a creditor of 
 the estate, by reason of the support and mainte- 
 nance by liim of the test.ator's wife (in Knglaiid) 
 during the test.ator's lifetime :— Held, that the 
 plaintitr's claim should be 8Upi)orted by viva 
 voce evidence, and an action w.as directeil to be 
 entered. Uvooiii v. Darlimjtoii, 9 1'. 11. 298.— 
 Uoyd. 
 
 2. Pleadimj ami Practice. 
 
 Held, that the jurisdiction of local masters in 
 .administration suits, under (i. (>. Chy. (i.'lS, is 
 not interfered with by lUile 422, O. . I. Act, the 
 practice in such matters is preserved intact by 
 Rule 3, O. J. Act. In such matters there is 
 power to direct service to be niatle out of the 
 jurisdiction. Jfr Allan — I'ocock v. Allan, 9 1'. 
 K. 277.— Full Court. 
 
•jn-1 
 
 273 
 
 EXECUTORS AND ADMINISTIIATUIIS. 
 
 J7t 
 
 lit; will of 
 Viisiiski'd, 
 rgo'I witli 
 ihihI siiK'o 
 1 in'oceod- 
 Mil Hj)et'i;il 
 
 til III ,'IH Kit 
 
 '>'/ V, .SV/v- 
 
 iiccof iiio- 
 <J.(). (i;w. 
 ic widow 
 ; heirs of 
 ng ft ilcii- 
 that i;iv- 
 
 K'lltof tliu 
 
 Tiio niMs- 
 iori order 
 'lit, V. ('., 
 
 Draijijiin 
 )raii<ioii, 8 
 
 The |ii.iintill w;ih an fxcuutor uh widl as ii 
 orcilitor, and waH idiarjjii'd with willul default :— 
 Ik'ld, that cni|iiii'y as to HUeh dofaiilt ouiiM l>u 
 iiiiiilf iindur tliu oi'dur of reforunco (Form Xo. 
 171, (). J. Act. 11). 
 
 Till! jirincipal and .surety hcinj,' hum tlio iilaiu- 
 tid'and defendant iv.spuetively, Ite (,'olliiis, S I'. 
 li. 54.S, which decides that in a casi! of jirini'lpal 
 and surety a Huinniary apiilication to adiMinister 
 Hiiikr (i. (>. C'liy. ()I58 is inii)roi)er, was held not 
 til aiiply. III. 
 
 All ai)i)lic;ation to consolidate two motions for 
 udiiliiiistiatioii and liartitioii iieiidin;,' lieforc a 
 Iipi.mI master should lie made to him and not to 
 a jitdyc in ('iiaml)crs. LiuiMir v. lAtinhkr, 9 
 1'. I!. 4'.'-_'.^l!oyd. 
 
 Under an administration order grantcid by a 
 Ideal master [lursuant to<J. (). ( 'iiy. (i.'tS T.S'.t, he 
 in ly investigate i)Uestions of wilful ilefanlt, and 
 iiiisiiinduct, and if he refuses, the iilaintill' should 
 a|i|ieal. If an action is commenced tin.' extra 
 costs must he liornc liy the iilaintifT. When the 
 misconduct is such as would untitle a plaintitf at 
 till' outset to a|i|ily for an injunction or a receiver, 
 an action should lie liroiight. StiUivan v. Umii/, 
 y I'. It. MO. - Hoyil. 
 
 I'.irties to suit. See llV/w/rc, ff nl. v. h'lix, 
 rt 'i'., '2.S (Jiiy. 471 ; //";///'■.« v. ///'.///''•<, (i A. 'it. 
 373 ; airi'wrhihl v. /.ii/s, 'JH Cliy. 4!)8. 
 
 Sue, also, l{<- /.'o.sw, 5 A. ]{. «'_', 8 I*. R. SC. ; 
 JItili/icr V. l/arritiiii, 28 Chy. 22 , IJawjhaii v. 
 .S7i'/0"', () A. It. 417. 
 
 3. Ciisl.t (tilt/ (JuiiuiiliKiiiii. 
 
 Where in an administration suit |iidiicrty sold 
 sulijectto a mortgage: - Held, that th'' commission 
 in lieu ol costs .should he uiion the .iiuiuint rcril 
 iziil hy the sale -that is, U]iiiii thc.ictual v.diie cf 
 til'-' iiitcicst of the intcst.ite in the pmiierty in 
 (jucstinn, not uiion tin; whole jiundiasi! inoiu^y. 
 y,'. M^Cnll^. Mi-Coll V. M.-<:„ll, 8 I'. I!. 480.— 
 Bi.ike. 
 
 Wlicre one of several Jiersons hclicliciiilly ili- 
 ti I'ustc I iindcrtlie will of .i testator, without niak- 
 in^' |iro|ier imiuiries into llic conduct and dealings 
 nith tiie est.ito liy the cxi'cutois, instituted |iro- 
 ceudin;;s .agiiiist them, and groiindlcssly charged 
 tlioiu with misconduct, caiismg therehy nuncccsf 
 sary costs .-11111 tmulilc, llie court lieiiig sati.slied 
 with the conduct otthc cxeciitois, refused lo take 
 the tiirthcr .idiiiiiiistr.itiuu ;ind tviudiiig u[i of the 
 estate out of their 1 1,11 ids ; and if, being shewn that 
 all the other [lersons inti'ivstcd in the estate were 
 satislied With the conduct of the executors, or- 
 dered the iil.iintilV to [i.iv the costs of the suit. 
 Humhiildi V. I'tirry, 27 Chy. 1!»3. 
 
 Executors may ho deprived of their costs where 
 they have impmiierly m.inaged the .alVairs of the 
 estate, though not guilty of any wilful miscon- 
 duct ; and tliis rule was acted on where the per- 
 sonal representative of one of the executors, w;vs 
 a party to tlio suit, though hu had imt acted in 
 the management of the estate ; his testator's 
 estate being ample. Kmni'dy v. I'bujlt; 27 Chy. 
 305. 
 
 A testator gave to each of his executors a auni 
 of §40 "in remuneration for their trouble." lu 
 18 
 
 carrying on the alTairs of the estate one of the 
 executors, with the knowledge <if his co executor, 
 and without any remonstranee from him, used in 
 his business .'?2(t() of the est.'itc, and the otlier hail 
 taken a mortg.ige, in his own n.iiiie, for .'*!H)() 
 bidonging to the est.ite, witlumt lAccutiiig any 
 declaration of trust in res|)ect thereof, itiidor 
 these eirciimstanees the court refused to the siir- 
 I viving executor, and to the executor of the de- 
 ceased ex(!cutor, their costs of the suit ; the 
 I court, however, being satisticd th it neither of 
 I them had been guilty of any wilful misconduct, 
 ' did not charge them with costs, and allowed 
 I them the amount of thiiir comniission ; but re- 
 ! fused to allow them to receive the legacies given 
 I by the will, which were expressed to bo in re- 
 muneration for their trouble. Ih. 
 
 Where an executor, by his niisenudiict in th' 
 management of an est.ite, c.iusi\s a suit, and but 
 for tlii^ f.ii't of the suit h.tving beiui brought tlio 
 assets Would li.ive been dissipated, the court will 
 not, as a general rule, allow such executor hia 
 costs out of the estate, although no loss has been 
 sustained ; and where in such a case, the party 
 interested Hied a bill without calling uiion the 
 executor for an aci'ount, or airoiding him any 
 oli|mitunity of shewing that his dc.iliiigs wero 
 correct, the court, (.Spragge, ('.) rctused the costs 
 of the suit to either [larty up to the taking of 
 the accounts, but directed the executor to pay 
 the siibsei|Uent costs up to the decree. Siiiip- 
 ■•<on V. llnriK, 28 ( liy. I. 
 
 The plaintill' Iiciiig a lunatic, and entitled to 
 niaintcnance out of the income of a fund in the 
 hands of executors, Kioiiglit an action tortile in- 
 come, and lor admiiiiitiMtion. The mister re- 
 ported a b lance of income in the hands of the 
 exccaitors. being ;in amount ch.irged .i^iiiist thi'iii 
 for interest upon moneys rctiincil by them and 
 not invested .ii'ionling to the terms of the will ; 
 Imt the conduct of the executors wis otherwisij 
 proper: -Held, that if the i|uestion of the liability 
 of tile executors for the interest li.id been the only 
 one in the action, the executors slionld have been 
 ordeiid to piy tile costs ; but iiiisinncli as a 
 geiier.il .•idininistiMtion w.is unnecessu'ily soiiglit 
 by bill and giMiitdl, no costs should be awarded 
 for or against, the executors. MfCiirilli' v, .)f'iiir: 
 <'t .'/, 20. It.. Chy. 1>. 2.'!). 
 
 In a suit for ftdministration, it appeared that 
 the pcrson.il representative hadke)'! very imper- 
 fect iieeounts of the estate, and thai tliose brought 
 into the master's ollice had been iiiadi; up partly 
 from scittered entries and p.irtly from niemory : 
 — Held, a sullicient justilicitioii for the institu 
 tion of the suit, and that the plaintill' was entitled 
 to the costs from the defendant u|) to the hearing, 
 although no loss had occurred to the estate. A'(/- 
 lliis v. Killing, 2!) Chy. 472. 
 
 It was also shewn that the personal representa- 
 tive h.id invested the moneys of the estate in land 
 out of the jurisdiction of the court as well aa on 
 personal security, but no lo-is had In- ■11 sustained, 
 all having been rep.iid by the borrow <r» ; -Held, 
 that these facts did not constitute .any ground 
 for depriving her of the costs of suit sub.se<|uent 
 to the decree. //'. 
 
 When it appeared that the admini.str.itioikpro- 
 cecdiiigs had been instituted without .my shew of 
 reason, or nroper foundation for tin; benetit of the 
 estate, and that they liail not, in their results, 
 
 
275 
 
 EXTKADITIOX. 
 
 27G 
 
 coiKliiccd t(i that lu'iu'rit, the (Icci.-.ion of I'rmid- I 
 toot, J., <ii'(l('iiiii,' till.' |>liiiiitill't(i |iny tlic msts of I 
 nil inii'tits, \\;iH iitlii nil <1 oil a||ical. y/c M'i/">//(i'// ' 
 
 (.■(tihiiii \. n,irn.„iliil.'2lK !{., Cliy. 1». 4".(i. 
 
 ]'!x(<'iitiiiH wcK' tliiiigdl Ijy till' nin^tir in tak- 
 ing tlu' accoiiiith in au ailiiiinitiliatinn i-iiit with 
 tlie fniii (il ^r'.t.lO-l.-l'-', anil allowed aH (lihlini.>-u- 
 njints the sum of >H,'Ji;,s.7(i. Iliisc amounts in- 
 cludt'd on liolli nidtH u humi of ii^.'t.L'.'ib.LT), icjpic- 
 Hinting' isiiuiiticN L'it'iir in tlic iioB^icKbion of the 
 jilaintiir at the time ol the tistator'M diath, or 
 liandi'd ovir to tin; idaintill' immtdiati'ly after- i 
 ward.s. 'J'he mahter allo«i(l the cxtcutorH a com- I 
 iniHHion of .ir l(it)on llu' total rur(.'i|its, including the 
 K,-iil Hum of .SS,'J;W.'.'rn- Held, that the oxccu- | 
 ti>rH were entitletl to compensation in resjiect of ! 
 the Kaid sunj of •:•.■{, 'J.'rs.l-'u : — Held, that the com- 
 miflHion allowed huh not excessive. /tV Butt — 
 Wny/it V. l\l,it<; d J'. J{. 447.— I'roudfoot. 
 
 See A'( Ihiiioiitn— Wilson V. Biutli/, 29Chy. 280 
 9 A. K. H!l 1). 4f). 
 
 Sfu also Sub-head JI. 1, p. 2(i7. 
 
 4. Aihii'miMntt'iiin iid lilim. 
 
 A motion iniidu under J{. S. (). c. 49, b. 9, to 
 aiiiKiint an administrator ad litem of the estate 
 of a dcce.'isdl ]]< ixin m.iy he made liefore the 
 referee, as thi.s .section n erely extends a jurisdic- 
 tion already jio.'-sisscd hy him inider <i. (). iV!. 
 Ciitlnr V. >Sinn/:ii, 8 1'. i!. 42.— Steiiheiis, ^iV- | 
 lirt e.— Sliia^'ge. | 
 
 It is tomijetent to the court, on a jiniiier case 
 heing made, to apjioint or di^l]cll.se with an ad- 
 ministrator ad litem, and then to diicct an ,-ic- 
 < otuit, Imt to jui-tily sut h iin older it should aji- 
 |ear not oidy in gemral teims that the estate 
 WHS small, 1 nt a statt niintsheviiif;tli( iiatureand 
 i mount of the personal estate oui,'ht to he pro- 
 ilueed and verified. Ji't I'oUnr— li.-liir \. Colli. ii, 
 h ]'. i;. .')42.- I'roudfoot. 
 
 lh!d, that tlic court has no jiower, where 
 the administration of an intestate's estate foinis 
 the sutijcct ol the suit, to ap]ioint a rejiresenta- 
 tive, under ]{. S. (). c. 49, s. 9, as the intestate 
 is not a party interested in the matters in (iiies- | 
 tioii in the suit within the meaning of that sec- 
 lion. J] 1(1/1(1 K v. J/(((jli(n (t (il., C) A. II. ,'17.'^. ' 
 
 'Ihe original plaintill having died pendente lite 
 and an order having hceu olitained to continue , 
 the pioeeeilings in the name of an administrator i 
 i.d litem:— Held, that the l.laintitrhcost8,lietween 
 solicitor and client, should lie ]>aid out of the in- 
 terest reccpvered : — Held, also, that the adminisj- I 
 trator ad litem was not entitled to he [(aid the 
 residue of the fund ; hut as to this liberty to 
 apply was granted. Mct'ucillc v. Mnvri', it id, 
 2 0. 1!., Lhy. U 229. 
 
 See AV Donovan — Wilson v. Beatly, 29 C'hy. 
 280 ; 9 A. K. 149, p. 4f). 
 
 KXTOKTKlN. 
 
 A magistrate acting under .'!2 and 'Xi Vict. c. 
 20, R. H7, I', cciivieteil four jiersons for creating 
 a disturhance thereunder, and imjiosed upon 
 each a line of v,'"i.(IO, hut instead of severing the 
 costs which he had chaigid, imjcMd the full 
 anioiint thereof against each d( fendant, and ic- 
 eeived it from each : - Held, that under the r\\-. 
 eiimstances, moie fully set out in the report of 
 the case, thi' o\erchargc niust In- deeniid to have 
 hem wilfully made, so as to lender the defen- 
 dant lialilc to the jienalty inijiosid in su( h eases 
 hy the It. S. (>. c. 77, s. 4. J'^tl■)<oll.^ iitti lam v. 
 Vnildii', ai C. J', i.-.i. 
 
 EXPEKT EVIDENCE. 
 
 tiee KviDKNCK. 
 
 EXPULSION 
 
 (IkMkMIIEHS of CoitPOHATIONS- 5(t CoRPOKA- 
 TIONS. 
 
 EXT1!AU1TI(»N. 
 1. t'li.Ns'riiVc'iios (IF TiiK Tkkatv. 
 
 1. Foriji ri/,'2'iiy. 
 
 2. Otiiir Caxi's, 27C. 
 
 JT. Stati'ti'.s 1{hi,atin(i io, 277. 
 III. EviDK.NCK, 277. 
 
 ]. CoNSTlUeTHlN OK Till'. TliKA TV. 
 
 1. Foriji-ri/. 
 
 A jirisoner was ci.njmitttd for o.tradition to 
 the I'nited States on a ehaige of haviiig lor^id 
 a lesolulion of a city eountil to the if.-Ui •>{ 
 hoiids, ol having forged a hi nd < i said < Ity, m .1 
 ol utteiing the same : — Held, on an application 
 for his dischaige, that the resolution lieiiig i.n 
 essential pieliniiiiary to the issue of the hi nd. 
 and the hond heiiig an inslrumeiit which might 
 he the subject of forgery, although not executed 
 in strict accordance with theeirde of the state ill 
 which the hond was issued, there wasaprini.i 
 facie case made out against the ]iiisoner, .nid 
 that he should he remanded as to ihi chaigi of 
 forgery. Ji'iijina v. llvfiij, 8 1'. 1!. lU.'i. — Osier. 
 
 Held, that the evidence against the jirisoiiur 
 of having uttered a forged instiuiiu nt not lieing 
 otheiwise sutlieieiit, the court could not look at 
 an indictment against him loiind hy the grand 
 jury ol an American Criminal Court. Ih. 
 
 I'er Sprngge, C. J. O. The forgery which is 
 the suhject of the treaty, cannot he conlined to 
 the statutory felony of forgery. In ir i'/iijip^, 8 
 A. I!. 77. 
 
 Si'fi also "CuiminalLaw" IV., p. 184. 
 
 2. Dlliir CiiKis. 
 
 An accessory before the fact is liable to cxlr.i- 
 dition, iiut an accessory alter the fact is net. 
 liiijina v. Jlionnf, IJ A. K. aMi, on ajipeal from 
 31 C. 1'. 484. 
 
 Scnible, per I'roudfoot, J.— It is not neces- 
 sary for jmrposes of extradition that the criiiiu 
 eliargeil should have been such an act as would 
 have constituted that crime at the date of the 
 Ashburton Treaty. It is siilMcient if it coii- 
 stituteil the crime in ijuestion at the date of its 
 alleged commission. Jn re Hull, .'1 O. K., Cliy- 
 
 I). 3;n. 
 
277 
 
 FACTOR. 
 
 rs 
 
 II. Sr.MlTKS UKI.ATlNf) TO, 
 
 Held, tlmt 40 >'itt. c. '2r>, I)., is not in force, 
 Init tlmt the law and jn-actici! ri'latinj,' to the ex- 
 traditiim of fugitive ermiinalM lietween the United 
 StnteH and Canada, is to lie found in tlio AhIi- 
 hiirton Treaty, Art. X., the .'11 Viet. c. !)t, I)., 
 ,TI Vict. c. lift, !)., an<l the Imp. Aets, 'A'A and 'M 
 Vitt. e, 52, and 'Mi and '.il Viet. c. «iO. l!e Wil- 
 lianiH, 7 1'. U. -"«'), njiproved of. llajiiKi v. 
 Uroinif, 31 C. 1". 484 ; .V. C. on appeal, (i A. 15. 
 
 111. EV1DEN(E. 
 
 On an applieation for the diseliarge uf a pri- 
 8(iiier eoniniitted lor extra<lition under an order 
 iif the euunty judge of Kent, on a eliarge of i.iiir- 
 (ler. I'er \Vilwou, ('. J., that under the Aets 
 mentioned in the last eane, and the ',i'2 and Xi 
 N'iet. e. ■')((, nh. 4, .'), a certified loiiy of an indict- 
 imut for murder found l)y tiiu grand jury of Ijio 
 county. State of Js'ew ^drk, L'. S., wan of itaelf 
 Mdlicient evidt'nce to justify tiic committal of 
 huili priNoner for extradition, i'er Osier, .)., that 
 tiuch mdietnient was not evidence for any pur- 
 pdHe. I'er Wilson, ('. .1., and Osier, .l.,that the 
 (ither evidence taken liefore the county judge, 
 (iocunientary and viva voce, set out in tiie re- 
 port of this case, was insnllicicnt, as it shewed 
 at nioEt that the prisoner was an acccs.soiy after 
 the fact, which di<l not come within the treaty. 
 I'er (ialt, J., that if the case had turned on the 
 iiulictnient ulone, he would have hesitated to ac- 
 cept it as conclusive against the accused ; but 
 tliut the othei evidence together with the indict- 
 ment, was bUtlicient to warrant his extradition. 
 .S'. v., 31 (,'. 1'. 484. .See next case. 
 
 Upon an application to the county juogo of 
 Kent for extradition of the defend;int, who was 
 under indictment in the State of New ^'ork for 
 murder, the coroner, who had held the inijuest 
 there, proved hy oral testimony liefore tlie county 
 judge here, the original depositions taken on oath 
 liefore him, and also copies of the de|ioKitions 
 ccrtilied liy him to lie true copies : — Held, that 
 under s. 14 of the Imperial Kxtradition Act of 
 1870, the original dejiositions were properly re- 
 ceived, as the power given therein to use the 
 original depositions is not <jualilied oy 31 Viet, 
 c. 04, 8. '2, I).; and that the evidence disclosed 
 therein was sntlicient to warrant the extradition 
 of the ]irisoner as an accessory hefore the fact : — 
 Held, also, that the foreign indictment was not 
 •idniissilile as evidence against the accused. It 
 was shewn that the only warrant issued in this 
 case Mas the warrajit issued hy the district at- 
 tonicy, after the grand jury had found a true 
 hill for murder, which dnl not profess to lie is- 
 sued upon the depositions, nor was it jiroved upon 
 what evidence the hill was fouuil. ISemlile, per 
 I'utterBon, .1. A., that the right given hy sec. 14 
 aliove referred to, to use copies of de]iositions is 
 confined by the eflect of s. 2 of 31 Vict. c. !)4, 
 to those eases in which a warrant has been issued 
 in the United States ujion the depositions. iS'. 
 ('., <i A. H. 380. 
 
 Held, that the original warrant, within the 
 meaning of 31 Vict. o. 1)4, s. 2 (I).), is not the 
 lirst of two or more consecutivo warrants, but is 
 any warrant issued in the United States of Am- 
 erica. Jte P/tippn, 1 O. H., Q. b. D. 580. Sue S. 
 C, 8 A. 11. 77. 
 
 I'er Patterson, .1. A., remarks n|ion the general 
 right of a person charged before a magistrate with 
 an iiiilictalile oflence to call witnesses for his de- 
 fence, and of a person whose extradition is de- 
 manded to shew by evidence that what he is 
 charged with is not an extr.idition crime. Si-ni- 
 lile, that the evidence oflered in this case, as stated 
 in the report, was improperly rejected, .V. C, 
 8 A. U, 77. 
 
 AVhere the facts in evidence, though siiflicient 
 to warrant extnidition if deposed to liy witnes- 
 ses who could reallv testify to their ocm nnence, 
 were sworn to from iiifoiiiiation only, tlif pris- 
 oner was discharged. //( /'c /'nrkir, 'J I'. I!. .Tt2, 
 — ( )sler. 
 
 See Jiiifina v. Iluccij, 8 l*. K. 345, [i. 27ti. 
 
 K.VntAS. 
 
 iSVc AVollK AMI LAIllirR. 
 
 KAtrroH. 
 
 S., a manufacturer, desiring to borrow money 
 from M., agreed with M. in writing, that M. 
 should have the selling of tlie goods manufac- 
 tured at his, .S.'s, factory ; that S. should give 
 M. a mortgage <in the factory, and piciiiises to 
 secure ij.'i.OOO, antl interest, to be advanced by 
 M., and should fuini.sh to ^1. all the goods manu- 
 factured at the factory, and manufacture the 
 same to the satisfaction of M., and ship the same 
 I to M., as M. directed, at such times, anil iii such 
 I reasonable iiuantities as he from time to time 
 should direct, and should pay M. a del creilere 
 conmiissioii of seven and a half per cent, for sell- 
 ing the same, and interest at eight per cent, on 
 all moneys ailvanccd by M. over the .S"<,0(MI ; and 
 M. covenanted, as his orders were filled, and the 
 1 goods received, to advance in cash to S. seventy- 
 live jier cent, of the wholesale trade value of such 
 ' goods, and for that purpose the .said goods were 
 ; to be invoiceil to M. at such value that hi', M., 
 I could sell them to the best adviilitage. It was 
 agreed also, that all gooils manufactured at the 
 factory should be sold only by or through M. : 
 — Held, that the above .agreement constituted 
 M. a factor, not a pledgee, lor he ha<l power to 
 sell without regard to any default in payment, 
 in the ordinary course of trade : — Held, also, 
 that M.'s authority to sell was irrevocalile : — 
 Held, further, that, under the interest which M. 
 had in the goods, and from the nature of the 
 dealings, and arrangements of S., and M., if S. 
 did not repay the advances made to him, or did 
 not deliver to M. goods suflicient to keep his ad- 
 vances protected by a surplus of twenty-live per 
 cent, of goods at the wholesale trade value, and 
 it became necessary for M. to protect himself 
 against such default, and ho could not within a 
 reasonable time have sold to customers, he could 
 sell by auction, and was not bound to delay until 
 private sales couM bo made. It appeared that 
 certain goods not specially ordered by the plain- 
 tiii', were sent to him by the defendant on some 
 arrangement, on whiuh he advanced seventy-five 
 per cent., and which goods were sold by him in 
 the s.ime manner as goods sent to fill his orders : 
 — Held, that he had the same right to sell thet>u 
 
 •i'l 
 
279 
 
 FIRE. 
 
 280 
 
 " » 
 
 'if: 
 
 i 
 
 I 
 
 no I, 
 
 it. Milr/ii'll V. .S'///'/ 
 
 miller till! writbii 
 , 4 (». I!., thy. U. 
 
 FALSK I.Ml'insoNMKXT. 
 
 .SVcMAi.icnirs AiiiM>T, riKisKcrridN, ANi)(>riii;n 
 
 I'lllK'KKM.NII.S -TliK-irAS.S. 
 
 FAr,Sr, KKIMtKSKNTATIOX. 
 See Fhaiiiani) Mi.skki'ukkkntatkis- VAUrAniR. 
 
 .SVt I! 
 
 lAK.M ("HOS.SINOS. 
 
 \II,\VA\M AMI ItAll.WAY C'(lMI'ANrK.><. 
 
 FATIIKI! AND SON. 
 Sir V.w.r.sr ANii Ciiii.ii. 
 
 I'Kf.ftXY. 
 
 .Vce ClilMINAI. liAW. 
 
 FKMF COVERT. 
 
 Hee iIU.-<ll\NU AND WlKK. 
 
 FENCES. 
 
 I. COVKVANT TO KkKI' II' Fk.N('KS--.SV r> 
 I.ANDI.OHD ANI> TkNANT. 
 
 II. Railway Fkncks— .SVc Railways anu 
 Railway Compasie.s. 
 
 Obligiitioii (if inunic'ipal cftrpor.atioii to fence 
 ■tlitchi's (111 liigliway.s in a daiigLTdUs coinlitidii. 
 A'lr W'tilfoii it ii.r, V. Ciii'inirathin vf Uie. i'oiiuti/ nf 
 York, OA.R. 181. 
 
 Cattle straying from highway on land not 
 fenced a.s rei|uired by niuniciiial by-law.— ^ I 'e- 
 qusitea of bylaw. See Cruici: v. Steeper et (il, 40 
 (,». li. 87. 
 
 Fi:nnY. 
 
 The crown granted a license to the town of 
 Rellcvillc, giving the riglit to ferry "b( twecii the 
 town of Rellcville to Aiiieli:i.sburj!."— Held, suf- 
 lieient to warrant the court in assuming that be- 
 tween the one jilace and the other was meant. 
 JillM V. Aiiilirniiii el III., 7 A. H. iiA\. Reversed 
 in the Supreme Court, May I88;{. 
 
 Under the authority of this license the town 
 of Belleville executed a lease to the plaintiff, 
 gvmtingthe franchise "to ferry to and from the 
 town of Belleville to Aineliasburg," a township 
 having a water frontage of about ten or twelve 
 miles, directly opposite to Relleville, such lease 
 
 providing for only one landing place on cacli 
 side ! Held, airirining tlie decree of tiie conrt of 
 Chancery, 'J7 Cliy. HI, that thiH wasiiHulUcient 
 grant to the lieeiiftee of a right of ferriage to nnd 
 Irom the two ]ilaeeN named : nnd the defeiidnntH 
 having started a ferry some two miles west of 
 hellevilh), running to a point nearly opiiositu in 
 AineliaNburg, was such a disturbance of tlie plain- 
 titl's franchise, as entitled him to n dedarntiou 
 of a right to the exclusive use of the ferry. 
 Ilagarty, C. .1., dissenting, who considered that 
 Aineliasburg having such an extensive frontage 
 opposite I'M'tleville, it was unreasonable, even if 
 the plaintitl's claim of a right to ferry to nnd fro 
 was guild, to require that n person crossing from 
 that townshijislmuld be compelled to go to Relle- 
 ville, although his destination might be several 
 miles thcreliom i and that by the terms of the 
 license and lease the right of the plniutifl'was 
 only to ferry one way. Jli. 
 
 FIERI FACIAS. 
 .SVe K.\ R.cTTioN. 
 
 FIRE. 
 
 I. Loss m' FlKK AKTF.R CoNTKACrT FOR 
 
 Sai.k, 'J80. 
 
 II. WllKN ANExfL'SEFORNON-PEKFOIIMANCE 
 OK CoNTUACT, 280. 
 
 III. Clearinci La.ni), 280. 
 
 IV. From Railway ENfiiNF.s— .S'cr Railways 
 
 AM> Railway Companies. 
 
 V. EiAiiiLirv OF Tenant ArrKR Fire — See 
 
 l.,ANI>LORr) AND TENANT. 
 
 VI. Insurance AOAiN.sT—iSt'e Insurance. 
 
 I. Loss itY Fire afier CoNTRArT for Sale. 
 
 A jmrehaser at a sale under decree signed the 
 usual contract to purchase, and paid the deposit. 
 The next day the buildings on the property wore 
 burned down : -Held, on a]ipeal, reversing the 
 decision of the referee, 8 V. ii, 1G(), that the Ijsa 
 would not fall on the purchaser, as the interest 
 contracted for did not vest in him till the report 
 on sale was eontinned. Slephenxoii v. Bain, 8 
 V. R.258. — I'roudfoot. 
 
 II. When an E.xcuse for non-performancb 
 OF Contract. 
 
 See Eflh v. T/ie Mhlliiml R. W. Co., 7 A. R. 
 404, p, 130 ; Jio.vreH v. Sutherland, 32 C.P. 131; 
 8 A. R. 233, p. LSO. 
 
 III. Clearinu Land. 
 
 AVhcrc fire has been properly set out by a 
 person on his land for the necessnry purposes of 
 husbandry, at a proper place, time, and season, 
 and mnnnged with duo care, he is not responsible 
 for damage occasioned by it. But where the de- 
 fendant, while harvesting in his own field, threw 
 upon the ground a lighted match thinking he 
 
281 
 
 FIXTUIlliS. 
 
 282 
 
 bad uxtiiiKuiHliud it, which howttVLT Hi.'t liru to 
 uiiiiiliiiHtihlu iiiutui'ial, mill tliu (klciKhiiit mi after- 
 wurilH iliHcovui'iiig it, tiiiiiigh hv cdiihl oiiMily hiivti 
 iiiit it out, iiltor coiiliaiiig it to onu Hpot Lit it, 
 aiitiuip'itiiig no iLiii^'ur, uinl iiftiT luiriiiiiK tor 
 four or livu il.'iyN, the liru Mpnuul to the [iliiiiitiirH 
 lirumiNuM, mill litiHtroyuil liiH liarii with ii i|iuiiitity 
 of uraiii mill iiay, tiiu court in ruvcroiiig the de- 
 cision of the (jiieeii'ii Kciich, coiisiitui'i'd that the 
 iiriuuiplu and doctrine estalilishid in Fietciier v. 
 ]{ylaiiilH, L. it. li II. I<. !illO, ami .Ioiich v. FcHt- 
 iiiiog K. \V. Co., Ii. U. 3 Q. II. 7;t3, applied ; and 
 tliat the defendant wax lialilu for the damage 
 Himtaineil liy the plaiiitill', even in the ali.sunce of 
 autual negliguncu. (luMton r. Wald, 1!) (j. B. 
 58(5 doiihtcd. FurloiKj v. Vtirnill, 7 A. K. 14.'). 
 
 FmK LIMIT.S. 
 
 Muiiioipnl Hy-law regarding tire limits. 
 lieij'ma v. llominl 4 (>. II. 377. 
 
 Soo 
 
 FISHERIES. 
 
 Under the Imperial .Statute, 14-15 Vict. c. U.I, 
 regulating the bouinl.iry line l)etween|old <.'anada 
 and New HrunawicU, tlio whole of the Hay of 
 CLaleura is within the present boundaries of the 
 Provinces of Quebec and New Brunswick and 
 within the Uoniinion of Canada, and the opera- 
 tion of the Fisheries Act, 31 Vict. o. (JO. 
 Therefore the act of drifting for salmon in the 
 Bay of Chaleurs, although that drifting may have 
 been more than three miles fnmi cither shore of 
 Now Brunswick or of QucIjcc al)Uttiiig on the 
 bay, is a drifting in Canadian waters and within 
 the prohiliitiun of the last mentioned Act, and of 
 the regulations made in virtue thoreuf. Mowat 
 V. McFiv, 5 S. C. K. GG. 
 
 The term "on view " in sub-s. 4 of s. Ifi of the 
 Fisheries Act is not to bo limited to seeing the 
 net in the water while in the very act of drilting. 
 If the party acting " ou view" sees what, if 
 testified to by him, would be sullicicnt to convict 
 of the olTcnce charged, that is suilicieiit for the 
 purposes of the Act. / b. 
 
 See The Queen \. Jiobertson, QS.G.R. 52 p, 123. 
 
 FIXTURES. 
 
 The plaintiflf owning land mortgaged it and 
 afterwards built a house thereon which w.ns 
 placed ou blocks of wood and was held by its own 
 weight on them. Per Armour J. the house was a 
 mere chattel, not having become by annexation 
 to the land or by the iutention of its owner jiart 
 of the land. Per Cameron J. the house was a fix- 
 ture, milipt V. Grand Rieer Farmers Mutual 
 fire Ins. Co. 46 Q. H. 334. 
 
 The court below held that the mortgagee of the 
 realty had in this case no right to look to the ma- 
 chiuery as security for his claim, as reported, 26 
 Chy. 618. On rehearing the court varied this de- 
 cree by declaring the plaintiff untitled to restrain 
 the removal of the machinery in question, by vir- 
 tue of a mortgage prior to that iu favour of the 
 
 plaintiff upon the niachinery, and which j)nor 
 tiiortgax'' hail liccii, bcfnro tiie iiirttitiition of this 
 suit, aHrtigiiud to tlu^ plaiiitlH'; leiiviiig the rights 
 of the partii'H in rcMpei't of the Hiib.si'iiiiriit chargi^s 
 on till! property to br iliHposiMl ofi'ltlifr on ;ippi!:il 
 or on iiirthrr directioiiH, or on li:ave rcHcrviMl. 
 Jhirur V. .Miilliiri/, '21 ( 'iiy. ;i()3. 
 
 S. niortg'igud land upon wliicli wiina saw-niiil, 
 together with iiiai'hini'iy , plant, trailu, and otluT 
 lixtui'i'S, to the Duiiiiiiiiiii Bank. lli'.ifti.'rwardM 
 erected a drying kiln with tliu iieces.sary iron 
 liipiliL' lor drying lumber, and subMuiiuiiitly re- 
 leased his eipiity of redemption in all the pro- 
 perty mortgaged to the niortgageuii. The latter 
 sold to the plaiiitiir the iriiii piping, which wiui 
 claimed by delendant under a s.ile from S ; — 
 Held, that |irinia facie the piping being part of a 
 buili'.ing erected for the [lurpose of iiii)iroving the 
 inluritaiice, wasalixture, and pasMcd to thiMiiort- 
 gagees.oither under their mortgage or the release; 
 that the burden of shewing tli.'it it was to con. 
 tinue chattel projterty, wlu'ii put into the kiln, 
 lay on the defendant; and that the plaintitl' there, 
 fore must succeed. Jiiirkf v. T<iijli)r, 4G (^ B. 371 . 
 
 Certain machinury wis ]iLaccd in a factory ou 
 the premi.ses in <|ncstion, some before and some 
 after the execution of the mortgage to the plaiii- 
 tilFs in bS74. The mortgagor (the defendant) had 
 no interest in any of the macliineiy at the date 
 of the mortgiige to the iilaintill's, having previ- 
 ously sold out to one .\iiel ; but afterwards he 
 becamu solely entitled to all of it, and he then 
 executed a chattel mortgage of the same to the 
 I'arry Sound Lumber iJompaiiy. On the refer- 
 ence under decree obUined by plaiiitilFs the 
 master made the lumber company parties as sub- 
 sei|Ueiit encumbrancui's : — Held, (as.suniing the 
 machinery, or some ])oi'tions of it, to be trade 
 li.xtures removable as between landlord and ten- 
 ant,) that the machinery (or such portion afore- 
 said) when acijuired by the moitgagor, would go 
 to increase the plaintill's' security ; and that there- 
 fore the master was right in making the lumber 
 company parties as suliseipient encumbrancers. 
 Further, that there appeared no good reason why 
 the plaintill's liaving purchased and taken an as- 
 signment of a mortgage made by defendant in 
 I8lit), were not entitled under that to have the 
 greater part if not all the machinery added to 
 their security. Limilon and ViUHuUiia Loan <L'c. 
 Vo. V. I'ulford, 8 P. Jl. 150.— Proudfoot. 
 
 Mortgiigors of vacant laud, adjacent to their 
 foundry, which was constructed of stone, erected 
 thereon afranie building as a lean-to to the foundry, 
 and placed in it three lathes, an iron [ilaner, two 
 drills, a crane and shaper, all of wlucli, with the 
 exception of one drill, which was bolted to the 
 frame work, the latter being bolted to the girders, 
 were kept in their position by their own weight, 
 without oeing f;vstened to any part of the building, 
 and were capable of being removed without in- 
 jury to either building or machinery. When the 
 mortg.age was given the land was not worth the 
 money advanced, but the mortg.igees relied 
 on a substantial building which tlie mortgagors 
 intended to erect ou it as an extension to their 
 factory, and took a covenant to insure the build- 
 ing for §4,000, but they did not bind the mortga- 
 gors to build or put iu machinery: — Held, revers- 
 ing the decree of SpragL'e, C, that the machines 
 were not fixtures, as they were not put iu the 
 building with the iatentioa that they should be- 
 
ftm 
 
 283 
 
 FOREIGN LAW. 
 
 284 
 
 coi.ic ]inrt of the realty ; — Held, f.lso, that tlic 
 nii'l-i; fact tliat huoIi iiiadiineH arc l)r<mi,'lit uiion 
 the laiiil liy tliu (twiicr of tlic frouliold raises no 
 lirc;8Uiii[)ti(in that he iiiteiicls to make them jjfrt 
 of tlie realty I'er Patterson, .1. A., the weij,'ht 
 of antliority is au;ainst '.'onstrninK as tixtiires any- 
 thing' wiiich is not annexed in fact to tlie realty, 
 except wliere the articles .)rin jiart of the faliric 
 as an inteirral jiortionof the architectural design, 
 or as ill the case of a mill stone, «hich is an es- 
 sential ]iart ot the mill. McHonald i'. Weeks, 
 8 ("liy. 'JOT, dissented from. Knfir \. Mni-rill, 
 (I A. It. I'-'l. 
 
 The iilaintiffs \.ere rci,istered nior*-„'ni,'ees of a 
 laigc tr.'ict of lanil. M.desirin;; to huild a mill 
 in I village \vhi"-_ part of tin; land lay, took a 
 deed if a ^iii.dl jiortion thereof from one of the 
 owp.rs of the eipiity of redemption, in order that 
 lie (M.) should erect n tlouringmill theri.'on. M., 
 V ithout; sc.'ircliing tln^ title, and without actual 
 Jiiitice of the plaintill's' niortgtige, erected the mill 
 (Vith the intention of estalilishiiig a Imsiness 
 there. I'.cfore it.'i complition, and hefore the iiia- 
 cliineiy was put in, he discovered the mortgage, 
 hut proeccii'd to put ill a lioiler, engine, mill 
 stones, and .■several iiiailiines necessary for carry- 
 ing on niilliiig. On the iilaiiitiil's attempting to 
 sell niiihr their mortgage, the machinery w.is re- 
 moved hy M. All injunetioii was granted to 
 at:iy the removal, ;iiid an issue vas directed to 
 try tin; titi.' to the mill and inachinery. A num- 
 hcr of tiK' machiiKs were not attached to the 
 hnililing, heingk;'iit in jilace liy thcirown weight; 
 but they Were iieces.sary for tlie working of the 
 mill, and suited for th.it purpose only, and the 
 whole structure -Imilding. engine house, Iniiler.s, 
 engine, and machinery was put up with the ex- 
 |iresE purpose of estahlisiiing a (louring mill on 
 laiiil tli.it .M. lielieved to lie liisown: Held, tliat 
 the mill and its contents pa.ssed to the mortgages; 
 and an order was maile for restitution of tlie ni.a- 
 ehinery which had liccii removei', and the injunc- 
 tion extended to pr vent its removj.l in future, 
 with lilieiy to .1/. I pay its value to the ]i!aiii 
 tills, whicl, they ought to .".ccept, if oir'.'ied, ami 
 relci.se the machinery. Dicl.-^uii v. Umitir, "JD 
 Chy. 73. 
 
 Certain counters wore embraced in the con- 
 tract for the cari>enter's work of a drug store, 
 and nailed to a Hcantliiig, which was placed in the 
 wall of the store. The bottom or ledge of the 
 coni.t">v v,.is made fast to the tloer of ti.e store, 
 luid the end connected with the frame-work oi 
 the windows in such a way that the wainscotting 
 >• t the bottom of the windows would be materially 
 injured by taking them (tlrj counttrs) lut, ,and 
 the floor of the building .also would be c msider- 
 ably damaged : -Held, th.it ttie countcis were 
 part of the freehold and included in a mortgage 
 thereof, and not chattel jiropcrty. Holland i: 
 Hodgson, b. IJ. 7 C. r. .'I'JS, and Ke f.n- v. Mcr- 
 ril, (i A. 'X. 121, apjiroved of. Mr('iiii<l<nii! v. 
 McCatlum, ct al, 3 O. K., t"hy. I). .'10."). 
 
 and the coiiit will not generally investigate it 
 upon an interlocutor^ proceeding, such as an ap- 
 ]ilication for an interlocutory injunction. The 
 Toronto liriwimf and MalliiKj Co, v. Blake, 2 
 O. li,, Chy. D. 175. 
 
 Where there are conflicting claimants to the 
 position of p.esident of a company, an'', one 
 claimant takes forcible possession oi the com- 
 pany's jiremiscs, the other claimant, at all eventa 
 when he is at the time acting president, can 
 bring an action to restrain him in the name of 
 the company, although it is uncertain who ia the 
 rightful president. Jii. 
 
 FORCn^LE ENTRY. 
 
 Upon a conviction for a forcible entry an order 
 for restitution is usually awan' ;d in favour of the 
 pai'ty dispossessed, irrospect' .e of the (piestion 
 of title, but vherc redress is sought by a civil 
 Action the title of the pluintifT must oe considered, 
 
 FORECLOSURE. 
 
 Of MoRTtlAOE— .SfC MORTOAOE. 
 
 FOUEIflX CORPORATIO'NS. 
 
 I. <!kNKH.VL1,Y — Si'f CoUl'OIiATION.S. 
 
 IT. AssKssMENT OI— SVe As.sessment and 
 Taxks. 
 
 111. .SkUVICE of WuiT on V i •..VCTICB. 
 
 FOUEION COUNTRY. 
 
 Devise to. Sec Parkhurd v. Rdij, 27 Chy. 
 3G1 ; 7 A. R. GI4. 
 
 FOREIGN INDICTMENT. 
 
 As evidence m extradition pro(x>edings. .See 
 liiijinn V. Ildviii, S I*. 11. .'U.'), p. 27(>. 
 
 FOREKiN JUDGMENT. 
 
 Sve JUDIIMENT. 
 
 FOREIGN LAW. 
 
 Evid :ncc of the custom of brokers at Toledo 
 he eoii'^'"ict being made in Ontario w;is : —Held 
 to have been properly rejected. 117 lidiiin v. 
 (•,>rl„!/, 5 A. R. (JJt). 
 
 Held in this ease that failing any information 
 respecting tin; law in Maine, IJ. S,, as to grants 
 of ailministration, it must be assumed to agrcu 
 with tlie law in this province. /?»; O'Brien, '^ 
 0. R., Chy. D., 320. 
 
 Diirereiieo between our insolvent law as to 
 Kct-oll' and that in ihigland and the United States 
 reinarkcd upon. Mitnon v. MacdonaUl, 45 Q. H. 
 113. 
 
 Law of Ohio respecting property of married 
 woman. See Lci'ini' v. chijtin, 31 C. 1*. 600. 
 
 Law of Michigan as to endorsement on note. 
 See Jenkn et al. v. Duran, 5 A. R. 588, p. 58. 
 
285 
 
 FRAUD AND MISHEPRKSEXTATION. 
 
 280 
 
 Foreign action pcndiiij,'. iScc Tlif Pinct Uiii- \ I'liyment by bank on forged ondorsemont of 
 liil Sla/i/< Cdlili' t'liiii/Kniii, (Liiiiitiil) v. 77i( . dieiiiii. Uiylit of tlio drawer to rocovur back. 
 Ihiiiiiiiioii Till iini/ih (.'niiiixiiii/ tij'C'nnnita, 8 A. li. S m /li/ririi/hirdl /nn'shnriif Co. v. T/i.<' Federal 
 
 liiud:'4-i Q. B. -214 ;>> A. K, 11)2, p. (i8. 
 
 4Ui ; 28 t'liy. (348, i>\>. 15, 180. 
 
 Proof of. See Hicr ct al v. Giom et a!., 4 O. R. 
 579. 
 
 Foreign Guardian. Sec Flaii'lrm v. D'Eoeli/ii. 
 4 0. n. 704. 
 
 Forei:' i -ivorce. See G./exl v. OiukI, \\ 0. U. 
 .144 ; Miijiint v. Mnijiirii, 3 O. R. 570. 
 
 Forgery by laws of New .lursey and Penn- 
 sylvania. See /n re JiirranI, 4 (>. R. 2(i"), p. 
 18G ; lie J'lii/'jix, 8 A. R. 77, p. 18(i. 
 
 F()iti:if:NKi{. 
 
 I. A It I! K.ST liV—.Sie AUKKST. 
 
 II. S i;( ■ r I ! 1 r V F( ) K (V )srs iiy — Sec Co.sTs. 
 
 See lieid v. /fnniphrey, 6 A. R. 40.1, p. 75. 
 
 I, 
 
 11, 
 
 III 
 
 IV 
 
 FORFF.ITrRE. 
 
 ()i \)ii\\y,u~ Sic Dowku. 
 
 ()l iNsrit.vNcK- See iNsriiAVCE. 
 
 Uk Stoik— ■sVf CintroKATiuN.*. 
 Ok Dkvisk -,SVf Will. 
 
 FRAUD AND MISUKPRESKN.\T10N. 
 
 I. I.N Sai.i: (ir Coxvevanlk of La.vd. 
 
 1. fJilihie /ntfiienri', 
 
 (a) /\n-enf and Child, 28(). 
 (Ii) Othrr /'(MOHM, 287. 
 
 2. Fntid/ or Misrc]tresciii(ition an a (jround 
 
 of Del'enee or JtiHr/', 287. 
 
 3. Fraudiili III Conreiinneen as aijidnut 
 
 Cnditorx — Sec Fkai'dl'LKnt Con- 
 
 VEVANrE.S. 
 
 4. lii'sr'iiiilinij conlrnet — ^ec S.VLE ok 
 
 Land. 
 
 II. A< riKN KiK Fauxf. l?KrRF.sF,NT.vnoN,289. 
 
 III. Misci-i.r.ANF.or-! Casks, 291. 
 
 IV. Rv ArniKNKV and ^^[.MViiv—See At- 
 
 TOKNKV AND Si )l.l, I lOlt. 
 
 V. FlUCD AND IlLKiIAL CoNSIDKIiATION IN 
 IJlI.I.S oil NoTKS ^Si'e lilt, I. i OK Iv\- 
 CllANclK AND PkoMISSOKV NoTKS. 
 
 VI. Fraud AND Fkm'di'i.kn c 1'kkkkkkncf.s-- 
 
 Sie liANKltl'I'liV AND IssoLVKNl'V 
 — ^FllAU l»r LKNT Con VEVANCE.S. 
 
 LiABirjTV OF Banks ir^ Cask of FRAnn 
 See Banks. 
 
 VII 
 VIII. FiiAt 
 
 FUAUDU- 
 
 Wlicr" tlio iiliintiflTs, a nnini'-i|i,il cnrimvatioii, 
 jiiisscd a by-law to raise >*'J(),0IK), to bu givi'ii to 
 tilt! dtfciiihiiit to ai.l liini in carrying on curtain 
 niaimfactiirrs in tin' municiipality, subject to a 
 couilition tliat 1 <.• sliould gi>'t' a mortgage on tlw 
 premises for .';'10,(K)(), aiul i bond for a further 
 sum of .><1(>.(H>0, which said securities slmulil l)e 
 C(!iulitioiii d for the cairying on of such ui inufac- 
 turcs for twi'nty years, and tiiat ibiring the saiil 
 period he shnuld 'keep ii vested at lea-t .'^.'iO.OOO 
 ni the faetory, and the d 'fendanl g avi' the boiul 
 ami the luortgige, co.:ditionecl as agreed, but the 
 latter not siieeiiying for what sum it was a secu- 
 rity, and inv( sted the -S-'il^OOl), but did not carry 
 ontiie inmufaetnres as agreed : IleM, that It. 
 8. O. c. I7-I, s. 4.")4 authorize!' the taking of the 
 moitg.ige by the corporation : that it must be 
 taken to 1h' not a charge for any specilic sum, but 
 a security for any damages tiic plaintitl's might 
 have .sustained by tlie Jefeadant's default, to an 
 extent not grc iter than 810,(100 ; that the court, , 
 
 would relieve against a forfeiture of the estat>! ; I •» tli>' report of this case, sheweil that the tran 
 and there stnudd be a refereiic • to asceruain the ' saction was one wiiieh a court of cipiity wouhl 
 
 i.i;nt .IriKiMnNT --S, i 
 
 l.KNT JUDOMF.NI'. 
 
 IX. Costs tv Casrs or' Allkcatiovs of 
 FuM'D N(r.- r ■■•■.iiu.rsirF.D — Sec 
 <'osrs. 
 
 X. In Insikanc'e --.S'((,' Insuka.vck. 
 
 .XI. BkTWKKV PkINCIPAL and AuENT— .•?('(> 
 
 PitiNci PAL AND AoEvr— Valuator. 
 
 I. In Salk oil CoNVKVANCK OP Land. 
 1. Undue liijiiieiice. 
 (a) Pureiit and. Child. 
 that the evidenci; more fully set out 
 
 :'■' 
 
 amount of the said damages, md on n(Ui payment 
 a sale of the premises. Tli- Corjionilinii of /hr 
 
 VUkujeof Ih-iitHiUx. Ronald etal., 4 O. R., Chy. 
 
 U. 1. 
 
 Of lease for breach of covenant. See f.on<jhi 
 V. Sanion, 4t) (.). H. 44(i. 
 
 Of right to land of railway company owing to 
 non-completion of work. See Crniid Jiiwiiou 
 Hedmvj Co. V. Mhlhutd liailii'iui Co., 7 A. It. 
 681. 
 
 FORGKRY. 
 ■See Criminal Law. 
 
 s -t aside as having been entered into by tin; father 
 improvideiitly, and by reason of undue intlnence 
 practiseil upon him by the jtlaintilf. AfcKai/ v. 
 MeKiOf, 31 (1 P. 1. 
 
 A conveyance of land from a man ninety years 
 old to his son was prepared on the instructions 
 of the latter, and recited that the son had agreed 
 to pay his father .?10 a nKmth for his life, butuo 
 such agreement had in fact been made, and there 
 was no otlier ci.isider.ition. Tiie deed was not 
 explained to ,,iie father, and the solicitor's clerk, 
 who witnessed it, coidd not say tha*; he had even 
 read it over to him. There w.as no direct fraud, 
 liut the father who had become chiMiHli was un- 
 der tlie inlluence of his son and had acted without 
 advice : — Held, ullirming tho decision of tho 
 
287 
 
 KilAri) AND MIHllKPEESPJNTATION. 
 
 288 
 
 IS 
 it 
 
 court bi'lnw ('.'7 ''l.V- •''iliTi tlmt tlic tli'l Iiavm^ 
 liecli tXfiiif fil witliDiit (IP '("T advice, Miniild bu 
 Bet aoidc. /.uriii v. Lariii, ' A. I!. 11(7. 
 
 Sec 1 1 II III V. Yiiuii'j, ;!8 <_'lij'. Sll, iiij'rii. 
 
 (1)) O///. )• /'l r:lllll1. 
 
 \N here it wa.s hli< wii tiiat a voluntary died 
 ]iad )ict'li 1 Ni riiti'd witliout iliil(')M'lldi'lit ailvicc, 
 till' fraiiliir htaiidiii^ in !<ui'li a rclatinn to the 
 ^Mfinlee, as that lie v\aw liiuly to lie under I'T 
 inilui nee, tile eciMlt (S|iragj;e, ('.), owinu to the 
 jieenliar relal iiiMslii|i ol the [laitieM, settliecon- 
 vcyanee aside, altlioiijih no ti.iud or moral wrong 
 could he iii'i'iiti d to the grantee ; and although 
 it waH proliahle. Iioni all the eircuniNtanet s of 
 the cane, that ii the eontents and legal elleet of 
 the instrmm nt had lieeii fully exiilained to the 
 grantor li\ an inile|iendent legal adviser, the 
 griilitor won Jtill have extuiited tht^ ileed 
 though jiiiiliilily \\itli sonic niodilicatious in the 
 <letiiils. I'he relief was granted without costs, 
 however, as no case of actual fiand was estali- 
 liBlied : ill this following Kuvili /'. havin, 7 A.K. 
 Un, xii/irii. /ill ill V. Ymiiiij, "28 Cliy. r>ll. 
 
 The defendant, a grandue|ihew of the jilaintin', 
 \t III was of aiUauced age and fielile mind, oil 
 taiiied from the latter, a eonveyanec of ci rtain 
 land, her only |ii'o|ierty and m(;ans of maintrii- 
 «nce, for a nominal consideration. He verhally 
 iiroiniscd to ii|>|>oit her as a consideration lor 
 till! grant. lie hrought a witness, wiio \s,in a 
 8trungci\ from a distance, to exjilain the deed 
 find witiios it. though "tlier relatives in the 
 ncighlioni liiiid were not consulted. it w,is ex- 
 ilained to her that the defcmlant coidd not he 
 legally hound to maintain her, a.s he was a minor. 
 The (iced 1 (iiitaimd no |io«er of revocation : 
 Held, that the deed should he cancelled, on the 
 ground that the plaintiH' «as not in a lit state of 
 mind to nii>lri>)and itscllcct; hut indeiicndeiitly 
 of tluH, thai It had liccn made ini|irovidently and 
 lindei' undue ihlliii'ncc,and was w holly voluntary, 
 ami theieloie coiild not stand. Wul'lijii lit v. 
 
 .shnotiK, I <». i;., g. B. i>. 1 ■ 
 
 See Kill'i.iini v. Armml, ti A. K. l.')8. p. 4.1. 
 
 \ 
 
 '2. Fi'uiiil i>r MinnjircKi iitnliiiii itn u ijrininil nf 
 Di/'cncc or lit I'll J'. 
 
 Wluie on the sale or conveyance of land the 
 oxistence of ail incumlir.ilice is concealed hy the 
 vendor, who covenants against iiK'anihrances ; 
 and the iiuichaser executes a mortg.igc to secure 
 a halance of uu|iaid imich.ise money, the .oiirt 
 will restrain ,iii action to cnlorce ji^.yuient of 
 such moilgage '.ironght at the instance of the 
 mortgagee or the voliintarv tr.Ui.sfcrce, unhsH 
 the amount of the imuinliranee so concealed is 
 deducted from tile sum secured hy .such mort- 
 gage. Luiilmi V. Ilnriiiiijtdii, '11 (.'hy. 178. 
 
 This jirim iplc was aiiplied in a ea.se w here the 
 imri'haser was a married woman, and her hiis- 
 liand had junied in and (executed the mortg.igc 
 hy which he covenanted to jiay the anioiait 
 secured I lierehy, ulthoiigh the cov 'iiant against 
 inciimliiaiiM :. was to the wile and not to the 
 hnsbuinl the covenantor himself. Ih, 
 
 A married woman, who could luitlier read nor 
 write.oiid wum pouuetiHed of ruul CHtiite, wan aHked 
 
 to joi 1 in a conveyance hy way of mortgage in 
 order to \>i\x her dower in her husli.nid's hind. 
 I The mortgagor's solicitor knew that she hid oh- 
 jected to uiortgagi^ her l.ind, .and it was not 
 ex|ii;iined to her or her hnsliand tli.at, hy her 
 joining, her »'state wmdd he lialilc in any way. 
 In fact the hush.ind and wile were made joint 
 grantors, and jointly covenanted for )iaymeiit. 
 After the death of the husl)and,i)rocecding8 wirro 
 instituted .ig.tinst lii-i widow to comiiel iiayineut 
 hy the assignee of the security. The court 
 (lioyd, ('.)undei- tin; eirciimstanccs, declared tho 
 instrument invalid as against the s^^iiarate estate 
 of the widow, and dismissed the hill with uonts. 
 liiirnnf.s v. LiiiriiiK, •'.( Chy. 47.'). 
 
 The )ilaiiitiir inducted the defendant to jiur- 
 cha'^e laud in I'ortagc hi I'r.iirie hy exhihiting to 
 him a nia|i re|ii'eseiitiiig the |iro|ierty to lit.' in the 
 liusiness |iortion of the town, and hy reiircsciit- 
 ing tli.it this was true. The defcinhint a|i|ilie I 
 to |iersoiis on the spot for information, and tvas 
 told th.it the re|irescntations made were incor- 
 rect. Hut he swore that one of the |ilaintiU's 
 tohl him that his informants were interested in 
 de|iicciatiiig the propirty,and that on thislnt pur 
 chased, paying .*<.")()l( cash, and giving a mortgage 
 for the halance. lie tried to sell, and could have 
 sold the property for more than he g.ive for it. 
 hut did not go to I'ortagc la Triurie for six months 
 after, when he found that the represcntatioim 
 
 j were iintrm', and repudiated the hargain. Thi.s 
 action was hrought on the mortgage, ami tliv; 
 defendant coiiiiter-eliimed for the ca.sh piymcnt 
 of pnrehasc iiioney ; Held, allirniing the deci- 
 sion of Armour, .)., that the dcfilidant was in- 
 duced to purchase hy false representations, .'ind, 
 
 , reversing the juilgnient, that he had not diseii- 
 
 [ titled liiiiiscif to relief hy laches ; tli.at the niort- 
 ;.'.ige should he delivered ii]i to he cancelleil, and 
 that the counter claim foi the monee naiil, with 
 out interest, should he adowed, on hi,^ re coll 
 
 I veviug the estate free from i'leuinlii'ances ore.itecl 
 hv' him. hv v. MiM,i/iiii,, 2 {). H., (,. H. |i 
 fl.Vt. 
 
 The jil'iiiit'ir, an illiterate man, held u hvnal 
 for a deed .if certain land on which a halance of 
 I'urch.is.' money was unpaid, and had aec|uired a 
 title to the lauds niidei' the .tat teof limitations 
 hut was not awiri^ of theeticct of his po.ssessioii. 
 The defendant, who had luirchased the interest of 
 the hi'iis of t he original owner .iinl vendor and his 
 solicitor, h_\ reprcsinting to till plaintiti' that he 
 h.nl iiM title, induced him to accept a lease of tliii 
 hind from th defendant for two years, at ii un- 
 niinal rent with a i-ovenant to yield up posHcssioQ 
 at the end of the term : Held, that under the 
 eircuiii.^t.iin es the lease must he set aside, hut 
 even if allowed to stand it Would nob constitute 
 an acknowlcdgnient sniliciiuit to disp'ace the 
 plaintiirs title, for its elleet woiihl only ho to 
 create an estoppel during its continuance. /HI 
 link- V. V"//oH ,/ ,(/., •_'(». I!., (!. r. I). .'i48. 
 
 Seinhle, jiei ( »sler, .(., that ulthoiigh tl..- evi- 
 dence in this case shewed that there was mi in 
 tentiou to decisive on the jiart of defendants 
 •ii.in.iger. still there was such a misstatement of 
 a m.'iteiial fact as hut for the notice received hy 
 plaintill's through their solicitor would nuiiler 
 the deleiidaiit'i li.ihle hir the damage sustiiini <l 
 thcrehy. I In Itiul EAalv inrisliiii iil i'n. v. 7'/i" 
 Milnijiiililiiii UitUdinii Siicii'ty, 3 O. K., C. I'.D. 471)- 
 
 See also ScMlz v, now!, Ct .•(. ( '. H. 585. 
 
28g 
 
 289 
 
 FRAUD AND IMISllKI'KESKNTATION. 
 
 :i90 
 
 I[. AcrioN FOii Fai-sk I!ki'1ii'.skntati()N. i 
 
 VV. conveyed to hia nephew, E., for an alloj^ed \ 
 consideration of $1,'20(), .W aereH of land, and • 
 afterwards tliene partieH applied to tlic |il;iiiitill > 
 the appraiser .>i :i loan company, for a loan of 
 Jl, ()()(» to pay, as waa alleged, njion tlie pnrcliasc' 
 ninney, W. asHerting that the property was well ' 
 worth >i-2,-M) cash, or :ji'J,r)()0 on a fair credit. I 
 The plaintiir, relying on the statements of \V. I 
 certilied the valui' accordingly and the loan was '• 
 cIVccted. 'I'he I ind was not worth the S 1. 000 
 ildvaneed. and -old for $800, leaving a I) ilance j 
 dn(! the > ■ ipany of nearly §r>(H), which tlu'y ''i'- i 
 ,,,.r.Ml-' plaintiff vo pay, and which he diil ' 
 SI I ill \Mlli till' coinpaiiy for, coiisidiiring himself | 
 lialile, and olitained from the company an assign- 
 ment of their seiiiiities. The court (I'rondloot, ■ 
 V.C.,) heing s:itisticil that the whiile transaction 
 was a fraudidciit ^i heme to ohtain the loni upon 
 the certilicate o lli ilaintill', ordei'ed liolh de 
 fendants to make good the ilelicieiicy, and pay 
 the costs of 1 suit; holding that the plaintill' 
 was entitled , <' an assignment of the claim 
 
 .IS against \V. ,o indenniify himself ; that lie 
 could siisf'M!) thifl snit though he had only secur- 
 ed the t\- ;;i y wiihont paying it ; that he had an 
 independ id 'iif^t of suit against W. for thr mis- 
 reprcsentati.-u. ,:.id that it was unneeessaiy that 
 the (h^nial in the answt^' should lie met oy more 
 than till' plaintill's own e\ ideme, for the drfi ii 
 (taut had liri'ii examined, and had furidslii I suf- 
 llicient ground for discrediting himsci''. Muliirli/ 
 V. /;,v"„{s -M ! 'hy. -270. 
 
 Defendant was mortgagee of plaintilV's farm, 
 and the litter, lieing unaMc to ]iay the mortgage, 
 asked dcli ndaiit to laiy the farm, and dcfindaul 
 oll'cred him tin refor some cash and a mortgam' 
 for.*()l'.l. repnsenting to him that the moitgage 
 w;ia a sei- ■ id mortgage ; that the land was as 
 good as delendant's own land, and that any 
 niiiney-lcndrr would readily i:ash it at a small 
 discount, tinis inducing jilaintili', an ignorant 
 nun, to accept it, when in fact the dclcnil.uit 
 knew it was a fourth mortgagi' and almost wm tii 
 less. After this an abstract of titli' waa sIhwii 
 to the jilaintill, hnt it did not ajipcar tiiit he 
 read it or that it was read or ex)iiaincd to him. 
 The jury having found for pLiiiitill' in an action 
 for deceit, on motion for a nonsuit : litld, that 
 there was no oldigation on the plaintill', as a 
 matter of law, to exannne the title or search 
 tlii^ registry ollice, hut th.it his /iniissioii to do so 
 w.'.s matter for conniient ordy : and that his 
 having liicn fui-nished with the means of know 
 ing, ol whirli he did not avail himself, af tci- the 
 false statements had lieen ni.iile, was no answrr 
 to the iiitioii. Semhh-, that on sustaining the 
 Verdict a reciinveyaiu;e ol the mortgage t > de 
 teudant might he ordered. .Nothing w.is s.iid as 
 to the aiHiiunt of the prior moitgage, Imt tlu' 
 jury having Inund that the representation was 
 talse to the know ledge of the ihfcndant. and was 
 inaih; with intint todeceivi', ,ind did deceive Ihr 
 plaintill ;- Held, lliat taking the w hole statt nieiit 
 together the verdiel waa not unwarranted. Ilnrr 
 V. /.»,»(//, (.-. l^. H. P.M. 
 
 I5y a covenant in a lease of a farm froiw de- 
 fendant to the plaintiir it was providi'd that upon 
 receiving m\ montlis' notice from the li'ssor that 
 ile had sold the I'.irm, aiul uuon receiving eom- 
 jien^ation for all 1 diinn- up to the date of the 
 notice, from whiidi he had ileri\ed no return, tin' 
 
 ID 
 
 lessee would dcdiver up possession at the end of 
 six months, the com]>ensation being duly paid. 
 Defendant served the [daintill' with .i notice that 
 he h id sold tlu; farm, in eonseipi^ nee of which 
 the plaintill' dcsisti'd from ]iutting in crops, and 
 other work f<u' which he had ni.ulc pri])aration, 
 ami rented another farm. I'pon .ascert lining that 
 the notice was untrue, the plaintill' n fuised to 
 give np pos^<ession, and sued the difendant for 
 false n^prcsiMitation : — Meld, reversiiii; the judg- 
 nu'iit of tlu; <>>. B., -t.") (). D., !»4, that the plaintill' 
 was entitled to recover the d.im.igis sustained hy 
 him in eonseipience of the notice. I'liirHiii/ v. 
 I)i,-k:^,„i, ,-. A. K. :a\). 
 
 The plaintill' in IS7.'? sold to defendant certain 
 tindirr lindts and rhattd property for .'5S."»,00(), 
 payalile in right yearly instalments, with m.iny 
 special terms as toad\anccs to he maih liy plain- 
 till' to defendant to assist him in gi tting out 
 lundier thereon, commission to he p.iid hy defen- 
 dant to plaintill', iVc. I5y deed in I.SJS, reciting 
 Ih.tt ill f.ndant had heen unalde to cany out this 
 agn (Hunt, it w.as .igiced that in eon- ider.ition of 
 dcfi ndant hciiig released fiom all ol. ligations to 
 plaintill' except as set out in a deed of ronipo- 
 sition of the same datt', the said agrreuuiit should 
 he canci'llcd. Hy the compo^sition dci d. lietwcen 
 the pl.iiotill' and his creditors, to whiih defen- 
 dant was a party, the creditors .igreed to aeeejit'iS 
 ,inl- in tlie •''<, on tlicii- respective claims, which 
 \,as to he paid in |iart mit of the pnnaeds of a 
 raft hilonging to defendant, 'hen on its way to 
 (,*uehee, and tiic halance in thrci' years ; and cer- 
 tain l.inils Wi'rr a-.siM|n'il as security. To en.ahle 
 dcfciidant to tr.iiisport his s.iiil tinilMi- ti> market, 
 the plaintill' .agreed to advance the necessary 
 funds, I )i- whii'h In; was to liaxo a pn;;rrential 
 (daim or the procerds. 'i'he unpaid lial.anee due 
 hy one .1.. nndi'i' an agrci'un'iit m.ide liy the 
 plaintill' W.IS to he deducted Irom thi- full and not 
 irom the reduied amount iluc to thr pi lintilV ; 
 and ill living the ai..oiuit due to Ihr plaintill', 
 .■<.'t(l,(M(() was to he dcdiieti'd for lie- irlii- cssion 
 of thr limits, whiel the pliintill' hid ogn ed to 
 si'll to difmdant hy the cinnllid .i.'i vcnieiit. It 
 appi'iied that the defendant in |S7S. ripii'sent- 
 ing liimself to he nnahlo to ineit his engat'e- 
 nunts, .'ind to h, l.irgely indihied to one K., 
 among othi-rs, and owing the pliintill' ahoiit 
 .■<.SO,tMM), li.id e.illed a meeting ot his creditors, 
 
 the re.u'i of which was tin mposition deed 
 
 ntiiitioiii d ai.d 'he .■igri'eniint of the same date 
 with the plaini'ir. The pl.iintill had taken po-, 
 sr--sion of the p.'o|)erly so taken h': k hy I'.iin, 
 ;inil had received 'he .idvaiH"';; neiile hy him to 
 in.'ihle tile ili'fendai:t in get down i he raft, and 
 part ol the nimuy due hy .1. lie had never 
 olleleil hack to defendant such properly or money, 
 nor olirrid to rele.isc the security. Old I'!., with 
 di'fi'ud lilt's other creditors, had hern paid in 
 full. Il.i*ing discovered that tln'ti' was nodelit 
 due hy the plaintiir to i;., lie pl.iintiir sued on 
 his ayiciinent of l,S7;i : Ihld, lAiiiiniir. .!., dis- 
 s, ntin.;,) that tlir whole traiisaclii'ii (;videiieeil 
 liy thctwoih'cds in |N7H,must he r''j.iidid as one 
 arraiiginient ; tli.it tin' iilaint'lf loiild not he 
 Inated ;is a creditor who li.id icciivcd part of 
 his cl.iim, and heen induced hy lr:;iid to re- 
 ha.se the residue ; that he ' aid not repndiati; 
 till' rele.iMc for fi'.'iud, not heiiig iji a position or 
 having oll'cred to repudiati' tin- wlu'le .•irr.inge- 
 ment ; and tiiat his proper remedy was , an aelioii 
 lor the lainages caused by d«ft'!id.int'.s de.:eit. 
 
291 
 
 FR A U DULKNT C( »N V H V.\ NCKS. 
 
 292 
 
 
 
 IVr Armour, .1., tin; ciiiniMisiti'in li:i\iii4 licfii 
 iilit.iirii'il liy fnunl, the pliiiiti i' was iiilitl.'^l (■> 
 sue t'lT till' liilaii'H' ipf his (Iclit, iTi.litiii^ tin- 
 ii^^rtiil pii'c' nf till: ;irii|ii'rty ainl tmiiiry nicix til 
 to till! ililciiilaiit. Frd ti r \\ Mrl^niii, !(I <^'. !>. 
 •Ml. 
 
 'I'lieH! iiiiist 1(0 ft wilful and fr.iiuliiloiit stato- 
 iili'iit of til it which is false to inaiiitaiii an aition 
 of ilci'cit, .iinl till' law .still ilistiiiijiiishiv-; iM'twccn 
 li'^jil ami 111 iimI fr.iuil in this r<s|ii(t. 'riiii'i't'ori', 
 wlii'n- till' plaiiitiir sued a I'l'i'tniii roiiii>.iiiy aii<l 
 its lUMiiiotvrs, siicliiiii; to Irui.' liisiiaiin' rciiiovi'il 
 froii til'' list of shari'liolilcrs, ami to hive tin' 
 nioiH^y p.iiil for his sliari's rrpaiil to him liy tlic 
 ilofi'iiil lilts, oil tin; (.{roiiml of frainluli'iit ri'|ii\'- 
 suiitatioii ami coiici'aliiiciit liy tin' sai'l jirnmotcrs, 
 Imt faih'il to prove that tlio latter had lieeii ' 
 guilty oi any fr.imliihMit intent, or that tliey had ' 
 made nqireseiitations knowiin^ them to he false, 
 or w ith ;i reekli^ss disreijaril as to their triitii or i 
 falsehood, it lieiiii,' admitted that, as far as the 
 Huit ri^l.iteij to the saiil promoters, it was siinplj' | 
 an aetioli of deeeit : -lleM, the |)lainti(r.s case 
 failed IS a'^'iinst the l.itt.'r : Meld, aUo, tliat as , 
 against tlie e imp uiy, tli'iiii^h the pliintilV. had I 
 'le come liefore the court ill ;,'ood time, mii;lit 
 peril ips hive had his eimtraet rescinded, yet hi 
 Iiaviir^, as the fact was, acted at a ineetiiii; oi 
 tlie dl indlolders after knowledge of what lie 
 now char^^'cd aijainst tliein, pre<lii'led liini fneii 
 assertiii;; any siieh rij;ht now, and his li!ll must 
 1)0 dismisscii, with costs. I'l/ric v. VVc f! l/i/i 
 /jlliilh, r ('(I. il til., lllll/ IlI'd titllt r Ctlxrs, 'J(». II., 
 
 ("hy. I). 'J18. 
 
 Action anainst ))cr.sonal represeiit.atives of de- 
 eoasi'd person who is oh,ir^i:d with framl. Seo 
 /fiiiiiil/'iii I'riiriliiil .1' AiKf/i Siiciihi v. Ciirihll, 4 
 
 .See /.',■ V. MiMiihiiii, '_» (». I!. (;.")!, p. '-'S.S. ,Sco 
 also '/'//( Mi)-i-liiiiiU' lidiih V. 'riiiiiiiii''(iii — Million I 
 
 V. r,-,,;,/, :t(». It. .'»4i. j 
 
 Sec also Vai.uatoh. 
 
 VI. I'MIoI. KvihKSCI', TO Vmiv DmKIIS (Hi 
 W l; I n MiS -.S'lr Kvi liKNTK. 
 
 Kent issiiinL( out of land is a teneinent ; it pir- 
 t.ik'.s of the nature of land, :iii I is within the 
 tilth section of the statute of frail Is, and lieiKusis 
 also within '2't (Jeo. II. i\ (}, s. I, llnjihinn \, 
 '/n/.khi-'rf ,il., .-{ (>. I!., Chy. I>. '22:i 
 
 .'"lee al.so lihlii'l v. /■Jilfnii, (i A. II. ~',i. 
 
 Kit VUnrLKXT CONVKYAXt^KS. 
 . As Ai; viNsr <; It i:i (irons. 
 
 I. 
 
 II. 
 ill. 
 
 IV. 
 
 A 
 
 /'//./.•(• l.tKII:.f.r,itii'l /,'. S. <>. c. //\. 
 
 /';■'/■' n iiliiil . ( ■<<!iiiiiifiiti. 
 (a) (Uiimilli/, -i!)?. 
 (I.) /i;ili nf S,il<' and C/i'iHr! Mori- 
 
 I'li'lir liiHolrcnt AfU — .S'lc Hank- 
 liirifv AMI Insoi.vhncv. 
 
 KllVWIj]; AND 
 
 1. 
 
 Hki'wkkn I'autiks -s'"( 
 .Mishki'iikskntation. 
 
 liV .M MMilAlIi: .SKrn.KMKST. 
 
 1. Itii'orc Marriiuji', 302. 
 •J. ,1./V. /• .Miirnii,/,', 'Mi. 
 I'i;\i 111 I'. IN Si:riiN(j .Nsini';. 
 I. I'll iiiliihj mill I'lirt'iiK, ,'U).") 
 
 ;{. inh.r ca<,«. •,m\. 
 
 I. As AOAINsr ('KKIil'I'oli.s. 
 
 rmlir 1,1 Eli:. ,: ,7 nwl It. S. O. r. 
 
 lis. 
 
 A son left his f.itlier's Iiojihu at tlieaL,'e of six- 
 teen, with the assent of the father, a farmer, anil 
 I went to teach school .'it a distance, it liein;^ .iHrt^eil 
 that he should remit to his f.-ither fnmi time 
 If a per.S(in Imrrowa inonej' from an innocent to time a jiart of his earninj,'s, and tli it the 
 
 III. Mi.H(Ki,i,ANKois ("asks. 
 
 same siiould lio repaid l>y the father al'.er tho 
 son attained majority, a8 tlu; son should w.iiit it. 
 Aceorilin'.^l.V reiiiittaiiees were ;ille^i'd to liavu 
 li'.'eti ina<le to Imh father, wliieli, on the son com- 
 iii;,'ol a>;e, anion nted to. '^(i(HI, and np\vards, wlii^ii 
 he found his father »vas iiiiahle to repay his ad- 
 vances. It was arr;iiii,'iMl that tin son should 
 n.ake further ailvances, anil th.it unless tlut 
 father (laiil them the son was to li.iv,; the farm 
 
 I conveyed to him, siiliject to certain iiiciim- 
 
 I liraiices upon it. Advances wert! Hiihseipicntly 
 FUAUD.S (STATUTK OF.) niade liy the son, and on a settlenieiit made in 
 
 IS77, it was jiscertained that the f.itlier's in- 
 
 I. IlKSPKiTINU AOKKEMF.NTS -- ,9(<' CoN- j delitednes.s ainoniited I" *l,('.(Kt .'ind upwards, 
 
 THACT. ' wlii' li it was then .'if^iced should he tlie eon- 
 
 II. I'lmM.si-sToTMiiii.I'AuriEs S. I V.i:mi- ["''['''*■'':" ^"l "'" l';«'<'l'--we "f t'"' t-ipiity of 
 
 ANTKE A.Sl. IM.EMMTV. redemption o the atller .1. the premises, the 
 
 convtyanceol which was iinpcai'hed liy a jinlg- 
 
 II. Kesitctixii I,KASES—.9(< I ANin.oiui AH'> ' nn lit Creditor of the father under "i:t I'lliz. 
 
 Tenant. | The court liein;,' sati.ilieil of the liona tides of the 
 
 V. llEHi-EiriNc; Su.ES OF (ioopH .V„ Hale ' '';"'*">^"' 'x'tweentJie lather and the son. .ind tli.it 
 J, I the Kii'iis cl.iiiiied had really lK!en advanceci, (■il- 
 
 tliou^di the only evidem e of the doalin),'« was that 
 V. Ri.'ir^VilNi. Salkm uf LASDH—Sce Salk ul the father and Mon) disniiHsuil the hill; hut, 
 OF Land. | without costs. Jm-k v. UrAij, iJ7 I'liy. (>. 
 
 lemler, and employs it in preferring' a creditor 
 the li'iider is not deliarred from siiiiij; for its rc- 
 |iaymeiit ; and if he holds security, such as the 
 nioi't^a;^e from ,1. and I!, to l>., in this case, he 
 can ch.ir^'e the UKUiey so lo.inod on such security. 
 I'oiirt v. //iilliiiiil, it III., l O, It., Chy. I). thSS. 
 
 See Noi-rull v. C'anniln Soatlu rii /{. It'. ( 'o. .H 
 A. K. I.'l, p. 19. 
 
293 
 
 FllAlTDULENT CONVEYANCES. 
 
 294 
 
 //.s'. 
 
 A liill Wius tiled in ISSO iilli)^iii); th.it in .June, , 
 18(!J, tlio tli'lcniliint L. cimvoj.^l tn tlu; ilotVu- [ 
 diint I!, ii lilt of liinil, wiiii'li convcyaiK:!' was 
 citliiT voluntary or tlic oimsiili'i'.iticni rocoivud 
 tliiTcfor iiiul liuiMi R'liaiil, and tlm'. L. had over • 
 sini^i' occuiiifd tlm laml.i, without any aoknow 
 leil,;,'nii'nt of title in l{. np to .lannary, ISSO, 
 whrn L, attornci! to I;., nlnoinj^ his (1/.'n) son in 
 i)osH("Jsjon. On the lirarnii; it wr.s satistacttorily 
 estuKliaht'd that li. was a niort^aget! of the ]iro- ' 
 
 Jifi'ly, and that in I8(U the tM|nity of rudoiniilion ' 
 lad ln't^n rclcasccl in considiiration of furthiir 
 ndvancus to L., wiio tlicn It^ft tin; oonntry, ard 
 dill not rctni'n niilil ISl!7, whon he went into 
 jiossrssion, and cxiiended iai'^^e sums of nioney in 
 ini|iii>venients, made aftiM' eon.sMUation with II., 
 and V liit'i Well! so made in lien of rent. 'I'lie 
 ooiiit. (I'roMilfiiot, V'.('.,) was of opiniipii tiiatthe 
 suit entirely failed so far a-' it read ■' on the 
 fiMudiiieiit eliaraeter of the orij^inal transai'Jon 
 IhIwii'ii L. and It., .itid that L. had not ,ii'i|iiireil 
 a title liy leiiL'tli of ]iossession, liiit that if he had 
 he was not lioiiiid to asMil it so as to enable an 
 cxreution, sued out at the iiistaiu^e of the (ilain- 
 tills, to attaeli lilmn the iiroperty. Kei'fer r. 
 Keefer. 'J7 ( '. I'. -">7, and Foster r. Ilmel'son, 5 
 Cliv. I.'M rem liked iiiMiit. iroc/-//i((,/ v. A'o/j/i, '2S 
 t'liy. •-'»:(. Aliiniied, 7 A. 11. :?S!t. I 
 
 In a suit by a creditor imiieaeliiii!.^ a sale liy ' 
 X. to his sister, made in consideration of lier 
 assiiiiiiiii; two mort.;iLres on tin.' land, eertaiii 
 L'xieiiliipiis n,i,'.iiiist him wliieh she |iaid, and of ;■• 
 delil dill' to herself, it i';i|ieareil she was aware 
 of tile [il.iintitr's claim ; tiiat her lirother had no ' 
 other [iroiicrty to meet it ; that he was of im- I 
 provident habits ; tliat a slicritl's sale was iieiid- 
 liij,' ; that N. h.id |irc\ ioiisly refused a larujer sum 
 for the land than his sisti'r j,'ave ; that N. coii- 
 tiniied after the .sale to reside on the hind ; that 
 she shortly afterwards sold the estate for more 
 thill twice wli.it she j^ave for it, and that she 
 l)oii,nlit other lands with ]);irt of the |iroeeeds, 
 li|ion which lauds \. went .lud resided ; — Meld, 
 that siitlicient was shewn to w.irr.iiit a decree 
 «leclarinj{ the eonveyaiiee by X. to his sister 
 fiaiidiilciit as a^'aiiist ereditort; under the statute' 
 of i:iizabeth. Mirrlll v. X/Vcs 28 ("liy. Hit;. 
 
 S, imrcli.ised I nids with moii.ys payable to 
 liiiii by the crown for work done under ;i eon- 
 tract, which lands he iirocured to be conveyed 
 to his wife: Held, that .ilthoiiyh the iiioiieys 
 could not bo reaclied by ;;ariiisliiii;.^ them before 
 beinn paid by the crown, yet tli.lt the money 
 haviiii,' passed out of the crown, by re.isoii of the 
 liiisbaiid's appoinliiient in favour of his wile, tlic 
 •■licet was to defraud creditors, and the f;ift w.is 
 tliercforc void under the statute of j'lli/abctli. 
 j\ irIiii/Miii V. Shii}iiiiiii-—Mi'l'li(i'''iin V. S/iiiiiiioii, 
 '28 Chy. 378. 
 
 A sale of a lot at an .'ibsurdly inadcipiate price, 
 the sale beint; otherwise attended with suspicion, 
 ■was set aside .'is fraudulent under the statute of 
 I'.li/abeth. Jitiiik n/' Toroulii v. Irirlii, 'J8 ( 'liy. 
 3!I7. 
 
 II. ohtained from his debtor an absolute con- 
 veyaiico of hind as security, which was attacked 
 by the plaintitr, who had subsei|uently recovered 
 an execution atjainst the^'rautor, as bein''a fraud- 
 ulent prefcnuice. It was shewn that the deed, 
 after its execution, had beeiiallcred by thej,'ran 
 tee HO as to convey the correct lot {'2'2 instead of 
 
 \'2'2), the only lot owned by the jj;rantor ; but no 
 re-execution or .•ickiiowleili,'mont took pl.ioo ; the 
 t;raiitor, lurvever, aecc^itcd ;v lease from II. of tho 
 correct lot, which he aftirw irds surrendered to 
 II. : -Held, th.it as the grantor, according' to tliu 
 ruliii!,' i'l Sayles /'. Hrowii, '28 < 'liy. 10, could not 
 claim to have tliii conveyance vacated, so neither 
 t:oiild his creditor, the iilaintill'. Siimiin ri'ilk v. 
 Ifiir, 'JS Chy. (ilS. 
 
 II. insisted that the conveyance to him was 
 boii.i tide, while the L;raiitor alleged it had been 
 obtaiuiiil by the fraud of II., the court (lllake, 
 \'. ('.,) in > 'e«- of the fact that the grantor in 
 another suii had sworn that it w.is made for a 
 valii liilc considcr.ition .iiid in good I'.iith, ri^luseil 
 the relief a.sked ; tiie other cii\ umstinces in the 
 case being such as not to justify a decree on tho 
 grantor's [irescut st.it iiients, .lUliough not estop- 
 ped by the tirst A:iU 'iieiit, but that lie wan at 
 iibi'ity now to pr, .-iciit the facts otiierwise. In 
 siicli.i ease tlii!expl,iiiatioiisgivi.'ii for the diU'eront 
 ac.'ount of liie tiMiis.iction must lie couviiicing. 
 I'lider tinvsc eirciiin itauces, ami II. claiming to 
 hold the land only as security for the .iiiiouiit due 
 him, and the court being Matisljei! of the bona 
 tiiles of the tr.'Ui.s.iction, oiilered an .iccoiiiit to bo 
 taken of the .imouiit due II., and t'e; lam! to bo 
 Sold , the pr.M'ceds to be applied lirsi in [layinent 
 of the amount due to ]]. for |iiiiiciiial, interest, 
 ,'iiid costs, and the baliiii e as in or linary framl- 
 ulent conveyance cases ; and for these |)iirpos(!S 
 till usual reference to the master was directed. 
 J'k 
 
 .^emble, w here one creditor, having obtained 
 property from his iicbtor iu fr: ml of other credit- 
 or.s, has ivali/ed the property), .uid rceiuved tlie 
 1 lO.'i^eds in a sh.ipe that cannot oe earmarked, 
 auotiicr creditor wiio has thereby bci'ii defrauded, 
 cannot make the prcl'eri'cd creditor ,icciiunt for 
 the said proceeds, but li.is no otlii:r remedy than 
 that prescribed by \',', \',\[/.. e. 5, s. 2. /hirU v. 
 WirUui, I U. l;., Chy. 1). .-JllK. 
 
 An execution issued on the same d.iy that a 
 judgment on default of a]iiieirance, contrary ti> 
 (triler'.i, Kiilcl, is signed, is .-in irregularity only, 
 and not. a nullity, .M., a iiiercli.iiit,, who waH in 
 ; insolvt'iit ciicumst.iiices, and h.td piirehased 
 laii "ly from ilcfend.iiits. statei' ,iii accinmt with 
 the ilet'ciid.ints .isfi.r cash due, in wliicji were in- 
 eluded Koini' acceptances iii itiiriug. which were 
 then delivered ii|) to him, ho receiving a buyer's 
 discount of live percent. Hy arrangement tho 
 defeiid.ints iccdvercd j'.idgnient by default of aji- 
 ; pearanee, and iiudi r an execution issued on tho 
 same d.iy plaintill's stock in trade w.is sold by 
 ' the shcriir, the dcfcnd.ints becoming purchasers. 
 \ 1'., the defendant's agent, wrote to the dcfen- 
 j daiits before .nit, that he had arranged with M.'s 
 I eonscnt to issue a writ for jndginciit, and take 
 I <'vcr\ thing, ami they would then let .M. go on ;ind 
 I reduce his stock, and see what the spring trade 
 I Would do. 'I'lie plaintill's, ten d.iys after, obtain- 
 I eil judgment and execution under liule .'S'24, iiinl 
 j the defendants h.-ving Hub.seipiciitly purchased 
 I the goods under these and other executions, an 
 ' inteiple.ider w.is directed ;- -Held, Arnioiir, .1., 
 dissenting, reversing the jiidguieiit of Armour, 
 .1., at the trial, that the defend.iiits' judgment, 
 execution, and purchase .at the HherilV's s;ile were 
 not a gift, conveyance, assigniiient, or transfer of 
 M.'s goods within the meaning of It, ,S. (). c. 
 1 IS, s. '2 :--l'er (Jamoron, J. — 'I'he c^atute, 1{. c'\. 
 
295 
 
 KRAUDULKNT CON VKYANCES. 
 
 296 
 
 <). o. I IH, .slidiild lie cdiiHlniiil stiictly. It is in , iiisc void ; .'iiiil tli;it tlic fact tliiit M.'s uifo joiiiuil 
 
 (ItTtij^iitiuii 111 tin; loiiiiiKPii lii«, iiiiil (liiiM iicjt to liai' dciwcr, in tlic t«ip last ni(pi'tj;a,L!t's to V. 
 
 ii|ii'i'at(' to ;;iv( all tli(; cii'ciitoiN til a ili'l'toi a lat- altii'.Hlio liail a|i|ianiitly lit'cc^njtt tjio owner of 
 
 iiiilf Kliari' in liiH illccts. licfoif Netting a.-<iili' tlic . tin' ii|uity ol' ri(l(ni|iti"n, i. mstitutiil Iht a party 
 
 •IcIitiirM imtiii'ncu lor a lij^iKlativc |ir<Un inr to the acuoimtin;; wliir'i took iilaci- with < '. in 
 
 not inoic lioiK «t, it nhoiihl III' tliar that the ill lit- ri'.s|n it to the (■ontiiiiiin;^ ililit, ami lioiinil her 
 
 or lias iloJie .siiiiiethinj,' wliiili liriiij;s him within in lier eharaeter of anHiM|iic if the ei|iiitv of re- 
 
 tlie ennnieiateil aets w liirli the .statlile |iiohiliitH. J ill iii|>tion if she eoiilil he se eonsiileieil, /<,'(/■ 
 
 MiinluiKiltl il III V. Ciiiiiiliii 1/ III., •! (). 1;., t^». I ininl" v. Minrison ,1 ,,/., .SO. I!., Cliy. I ». 4l'S. 
 
 a I). -Ji;). Allinneil. See -JO C. I-.. J. I K;. i ■> n , .- , , • ,,,.,. 
 
 !>., the |iniihaner ot ianil, n Ib.id, ^Mvoa niort- 
 
 Thc male ilefemlant niortga;.'eil liis |iio|i(ily ' K'',y'' 'I""'"" <•" A., the ven.li.r, tosei lire part of 
 
 several tiiiiiN, ami finally sold the ii|nity of re- : the |iiiiiliase iiioniy. 'IVxes were allowed toai;- 
 
 deni|itioii, Jlis wifi' haired her dower in eaeh I eiiiiiidate, lor wliiih the laiiil was sold, and I). 
 
 inortj;a;,'e, iii:der an .•i;ireenient M ith her hilshalid, heeanie the juiichase; in IhdS. In IS7-, i >. made 
 
 made on the lirst oeeasioii, that he \Miuld eon- , t onveyames ol his other land and ] personal pro- 
 
 vey other propiity to her. rpoii this elaini I perty to his two sons, eaeh of whom yave liaek 
 
 heinj; reiterated on the sale of the eipiity of re- ' a niortj^.i^'e to seenre the mainteiianee of l». anil 
 
 (lernptioli, and the refusal of the wile to join in [ his wile, and the payment of eertain sums to 
 
 tlie ion\iyanei' unless the pioniise of the lilis ' other ehihlren. No elaim «. as made on the niort- 
 
 hand was hillilled, the hlislialid eonviyed other U'aL'e ;.;iveii liy I ». until IS7(i, and the plaiiititr 
 
 land to a ti iistee lor her. The 1 llect was that el.iiniiin,' ;iH assi;,'n(M' of .A., reeo\ered jlld;;nient 
 
 tilt! plaintlll. a iieilitor of the hii>l'aMil w.is de- ' a;r;iinst I >. in .liiiie, I.S7.S, on i\w eoveiiaiit. Ill 
 
 layeil and hii di red in leeoViriiiL; his ileht : ' the same year, in order to defeat this jiidj^ment, 
 
 ]|elil. alliiniinj; the ilieisioii of the lolirt helew, ' the iiiort;<a,L'es made in Im7- to I), were released 
 
 that the lonveyaiiie to the \\ ife's trustee. \\;is nol and new mortL;a,i;es made to his wife siemiiij^ 
 
 volniitary : and as the trans.ietioii hail lueii fonnd siihsl.inliaily tiie same provision. The pi lintill 
 
 to have 111 I'll lioii.'i tide, and witlmut iiilelit to ile ' h.iviliL.' olit.'iilied a decree ill the 1 niirt liehiw to 
 
 fraud creditors, it eoiild not he impciehed iimlcr set asnle the trans.iclions of I.S7'i and I.H7S. as 
 
 i;{ J'lli/. e. .'">. lii iii-U V. Mmiiiiii il iij-., \. I!. 7<H. 
 
 Held, that ;i deed of assiijnmcnt of lands in 
 trust for creditors, under the ciicMliistanee.--' of 
 this ease, was not void under l,'{ I'li/. e. "> ; and 
 
 fraildiilciit j,'aiiist creditors, such jud;;ment was 
 re\i'rscd on appcd. I'cr riiirton jiml i'.ittcr 
 son. .I'l.A., the transaction of l,S7-, upon the 
 evidence more Itilly set out ill the report, 
 was not fraudulent, for it was not volunlary. 
 
 that .see. IS of the lniiiL;.'iit helitors .Act. now ),„(, |,|-,,„ul,i ahoiit hy pr> ssure on the jKirt ol the 
 15. S. (). c. IIS, s. •_', does not reler to real pro- ] „,,|,^_ .j,,,! „as lor v.ilualile eoiisidcratioii ; the 
 
 l>erty. Mi\„li v. I'nnl -//., .Ti ( '. P. ."il,"!. 
 
 On nil April, ISd.'l, M. and Ins wile (to liar 
 (lower) moi!^a;,'eil tin lands in qiiistion to ( '. 
 On "J 1st May, IS(17, M. Ininj; in insolvent eir 
 cunistaiices, idiivcycd the said 1 mils to W 
 to the use of .\l.s wife. In ISCS ,'inil lS7v.' M. 
 exeenteil two other niortu'.'i,i,'cs to ( '. for the deht 
 (iriL;inallv secnied \<\ the lirst nmrtc.'iue. On 
 L>Oth lieeindiir. ls7t, M. and his wile (to I.a. I '"•■'"."'.•'■.'}■ "'^' alh'iMtnm in the lidl that 
 
 liower) I •iL-a'.^cd the s.ud lands to ( '. .'Ml the 1 t'".' I.'''''''^'" "■•'^ a.'''' "''^"'' '" ''""l"";*^ "' ^' ','''''^ 
 
 .'ihove deeds were reuistiicd al.out the time of ^'Xistin- lict.ire ISr.', was not proved, tor there 
 tl.eirrcspectivc.xeeulioiis. On l-ith March, ls7(i. "■"* ii". s>'.l |>H''it p'oot ol .-my .'issi,u'iimcnt to 
 O. asslened to t he plaint ill, hut thcdcd was not 1 1'>^'. pl'""H<'., "I ^■'\'\, [[''' ,|mlu>ucnt_ w-.is no 
 registered. On Ttli hinc, 1S7''. M. and hiswili 
 
 mere fact, tlnielore, if it were shewn, of elcili- 
 tors liciiif.;; del.'iycd Would not dispeii.si' with jiioof 
 ' of intent to delay, ite. , and there was no .siillici- 
 eiit proof of such intent, cilhcr on the p.irt of the 
 father or sons, and certainly not on the part of 
 the latter, which was esscnti.il, for the evid. nee 
 Went to shew that this deht, which w.istli> only 
 ine, was neither kmnvn imr apprehended. I'cr 
 
 jointly (iiortca'.'cd the same l.in.ls to the pliin- 
 titf liy deed re;,'istc"i'd l."'th .Inly, |S7ri. ( )ii -Jlst. 
 May IS71. \N . .''.nd M. md his w if.' ^^r.inted .'iinl 
 released the said lands to (' until payment of the 
 inort<_','ii,'i' of Is7-. ;.nd on payiucnt llicrcof to 
 the use of M. in fee. This, howewr, was not 
 registered till 4tli Aiitus^, issl. The phiintill 
 
 lia<l I" notice tliiit ill! nv'yaiice jiom M. of 
 
 2lMt .\liy, |H(!7, was invalid, nor ol tlici'iiii\ey- 
 aiiee of '--Ilsl May, IS7I, luit he had notice of 
 the three inort'/aj/eK to <'.. :iiiil that ( '. claimed 
 thv w hole delit .'t),r;iniHt the land, and ,ilso tli.it 
 
 eviileliee, .illd a deed of the land liy the niort 
 j,'aj,'ee. A., to the pl.-iintilf. would not operate as 
 an assiciiinciit oi the delit 01 ol tin.' morij;.ij;e ; 
 nor w:is it sullicunt to shew the mm lL:n;e, and 
 tli.it the jnilumeiit was for the money .-m lurcd liy 
 it. !'er I'.ilti iMin, .1. A. I'mol ot the ju-si^n- 
 nieiit was inim.itci i.'il, for the pi lintill' li.nl jud;;- 
 nieiit lor f he iiioi't>;a:;c deht, and if the intent to 
 defeat such deht had liccn shewn, the j^rantccs 
 of the l.'ind eoald not <{Ucstioii the e.Mcuiion 
 plaintiU's title, .ilfm, v MrTiiri.''/,, H A. 1!. 
 11(1; revirsim;, 'JS ( 'hy. ,",.1!1. 
 
 (hie S., a ti.'uler, wlei was in eniliarr.issed eir- 
 
 there v.'is a defect in ( '. 's title under the second ciinistanecs, on consultation with \\'., one of Ins 
 
 and thud niot't;.,M;.<i -I : Held, tli.'it the pl.nutiH', creditors, w.is .idvised hy him to maki' an as- 
 
 In-'in^ Il p'lui liy sin 11 imtiee. eoiild not avail him- '<iL'iimeiit of all his stock-in ti ide .ind ellcet'J. 
 
 self of any deleet 111 title arisi:'!.; from .M. t'.ve wliiih he did to his wife, in whose n.inic the 
 
 t'litinj< the l.'ittertwo inortu.ijfes t 1 f '.. altlioii,4;h lui.^incss w;is aftciw.irds e.irrii d on, she olilain- 
 
 still lieiiic the i.« n< rof the I'ipiity of re'h nijilion, in;,' from the )i|.iint ill's yoods on her own credit ; 
 
 tliat tie plain till' .o i,n;red his title w itli know 1 and on the |il:iintiHs ii;<recin); to settle the cl.iims 
 
 I'llj^e tint ( '. I'laiiiH d 1 delit representeil hy the of two other creditors, wliu'h they did, she ev 
 
 three nioit'iaees, , '11111 took his iiiip|(^.'ii;e. aiilpj<'ct eeiited to thein a chattel niorlcaKO on all the 
 
 to such elain, hy ('. :- Meld, also, thatthcilMil elleetH ni her shop. The shciill' h.iviiif; sei/cd 
 
 from .M. of "ilt May, Ih(i7, was either voliin- the .-oodH iiiidei' an execution .it tin' .■■uit of an- 
 
 tury ur a fraudiik::* iirufcreneu, and in uitlior othur ercditor, the plaintill'H iiistitiitud inter- 
 
 * 
 
29/ 
 
 FRAUDULENT CONVKYANCES. 
 
 298 
 
 lilciilcr ]>r')cor(lin;,'s : - -TlcM. tli.it, tliu iiii)ft;,Mj,'(' 
 ill tliciii wjiH a friiiidulciit jircfi^riMU'L', and assiu'li 
 viiiil a;,'aiiist oreiliturs. limiil vt <il. v. (llnss, 8 
 
 A. It. (;:v.». 
 
 Sie lJ(iri(t.ioitv. Maijiiln, 7 .\. J!. US, p. 302. 
 
 2, I'l'ifiriiilUil AK.siijiinii'iiln. 
 (a) (I'liH'riiHi/. 
 
 A man in insolvi'nt lirciini.stancuH was snccl 
 a'liMit (lie same tinu' liy two cirilitorN, onti of tin; 
 jilaintill's licin;,' his Hon, 'I'o tlii' om(! action In^ cn- 
 tfii'ii a licl'inci', wliiic to tlic other, that l>idti;,'ht 
 l»y iiis son, he niaile no ih'fcncc, liy reason of 
 ■whicii juili^'incnt was ohtaincil therein and all his 
 t'tlects sold, which were li()ni,'ht in liy an ai;i'nt 
 of the son, the windi' nali/in!^ less than thcdelit, 
 intei'ist, and costs. In onh'f to make np sulli- 
 cieiit to satisfy tin; Italanee of his son's claim, 
 the defend int iii the action w:is iiij,'i'il to make 
 jvn assii^nnient to his son of all his hook dclits, 
 whi(di he <lid, thcieliy denudin;; himself of all 
 
 {)roiierty : llcdd, that as the liook dehts conld 
 >e sei/ed nndcr an execution, the assiLjnnicnt 
 thereof was a frandnlent ])refercnce witiiin the 
 Act ; and tlie fissiL;nment liein;,' ileclared void, 
 the son was ordereil to account (ov the mon<\v^i 
 received Iherennder. Umler tin- circumstances 
 no costs were alloweil to oithor party. Liihall v. 
 
 /;/.'■ /, L's ( 'hy. r.!i:t. 
 
 r>., an insolvent delitor, made a deed of lii.s 
 stock-in-trad(^ and lands to the plaintill'in trnst, 
 to convert the sami' into money, jiaj- the ex- 
 pcn ics of the trust, retain ten per cent, of moneys 
 rcccivcil liy way of coin)icnsation, .and p.iy tlie 
 present excention ;iiid other privil(\i;ed crcilitois, 
 if .any, .accordin- to priority, next to divide the 
 lialance p.ari passn anion;,'at all otlicr (creditor.;, 
 and to pay the snrplns, if any, to 15. Tiie plain- 
 till took po,^cssifin iiider the ilocd. Thi,' trustee 
 ■was not a > rcdilm, .and theie was no evidi'nccof 
 iiny acceptance of th ■ deed l>y, or coMiiiumica 
 tiori of it, to any of the creditors. 'I he defen- 
 dants seized ni. Icr an execution a few days after 
 the deed : Held, aliirn'in^' Jlc judgment of the 
 county ju li^col Jlaltiiii, th .t the deed was a re 
 voc ilile, vohnitary in^trlnnent, the relation of 
 tri:-.tec iuiit L <tiii ijiK' trust not h.ivin:,' In /n 
 csl»Misl',;d lii'ttt, 1 'lie plaintil! and till! credi 
 toi's, and tl'i'rcfore void aw a^iuist tin defen- 
 dants. Held, also, that it was void iimler K. S. 
 (), c. IIS, s. 2, as it did not provide for the pay- 
 ing ratalily and propintionalily, and without 
 prcl'crence or |rtioritv all the cri' litoi'.s, litit ;.;;ive 
 ilplelerenee to others liesidi's ixecution creditors. 
 Aii'/n II' V. Sf'iiir/ il III., (i A. II. 4!».'>. 
 
 \'., who was a pr.ictisinL; .■ittorncy and also 
 clerk of of the peace and county .ittorncy, h,;vj;iir 
 liecii ordircd t 1 pay over ceii.iin moneys, or in 
 default lie striok oil' tlu' roll of iittorncys, tn;ide 
 ivn as-(i'4nnient of his einolunient.s ,'is county at 
 tot n \ to II., \V., and ■!. to secure tlu- .ainount 
 will II he had lieen ordered to p.iy Ihcir client, 
 at the Him.' tiiii- telliui; l(., \V., and.), tint he 
 Would lea\e It to them to hind him hack such 
 Jt.irt as they clitisc on which to live, sucli an as 
 Hiumnciit liehi;.; L;enerally ixeeuteil at the licLjin 
 nin^; of eaeli ipiarter, upon which they drew the 
 
 ainoimt comiiii^ frotn tin uiit.y and li iinled \'. 
 
 liack a portion to live on. Siilisei|Mently V. re 
 fovereil a judgment in fa\imr ot a cheiit, on 
 
 ' whiidi costs were taxed ia liix favmir at f Wi4, 
 
 '. which he also assiLrned to Hccuru the same elaiiii. 
 
 I Aliout a month afterwards the plaintill' (i., us 
 an execution cnditor, oht.iined an attaching 
 order : llidd, (.illlrmin;; the jud^'ineni of SenkU.'r, 
 county judj.;e,) that the existence of the (irilcr 
 held liy II., W., and. I., was asutlicient presmirc 
 to prevent the assi;;nnient executed hy V'. Iii'iiig 
 considered a preference within the meaning oi 
 tlie .Vet, II. S. (). c. I IS. llraiil v. ViiiiS'oriiian, 
 
 I liiiriiii (7 (//. , UnniUlircH ami Kiiiiny C'lniiiniiit, 
 7 A. U. .VJC. 
 
 I Two personsearried onlinsiin's.s umlvr the name 
 
 i of 'Mi. \' W." Il.ivin',' liecmne iin.ilde to pay 
 
 I their li.iliilitics, they m.ide ;in assijiMinent to the 
 
 pi lintill's of .ill tlieir partnership etlects ami of 
 
 ;ill the person.il etl'cets of (i., " other than wear- 
 
 iuL; .apparel," in and ,,'iout the dwellin<,' Iiouhc of 
 
 (J., in trust to p,iy all the creditors of 'M!.it VV." 
 
 -Held, (allirmiuL; the jud;.,'mcnt of the court 
 
 Ih.I iw, ;f2 (!. I'. <!S,) that the deed was void, in 
 
 conse(|iieiieu of providing for' the jiayment of 
 
 )i irfiierslii|i creditors only ; and parol evidence 
 
 w.is not ,iilmis<ilile to pi'ovc th.it the olijeet of 
 
 the parlies, in making the assii;nnient, wan to 
 
 pi'o\ ile for tiie payiii'iit of sep.;rate as well as 
 
 1 p.irtiicrship creditors, ^lill^ il al. v. Kirr ft 
 
 III., 7 A. I!. 7i;'.t. See .M.KilrUh v. //./A//, 4C O, 
 
 j n. 2ii; ; A'. ir.///,v/-, s a. it. k;;!. 
 
 \V. and W. ni.ide an anHigninent of all their 
 assets, liotli separate and p irliiorship property, 
 to the pliintitrin trust, to n^ali/.e and pay "all 
 
 I till' just delits of the said creditors of tin; said 
 
 ' delitors rat ilily and proportionalily, and without 
 preference or priority." There was a proviso 
 that th<^ trustee miL,'lit pay any creditor in fi'.Ii 
 
 j whose delit constituted a lic'ii on any part of the 
 jissets, wiienever he ih'cmeil it advisalilo so to do. 
 
 I It appeai'cil lh.it one of the parting's had mi pro- 
 
 : [lerty, and owed hut SI II) : tiiat the other had 
 some housi'hold furniUire which wrs sei/ed for 
 
 ^ rent, whicii it s.itisii.'d : that he owed less than 
 .SjdO otherwise ; .iinl tli.it .ill thesi' separate dcbt.-< 
 li I I liiH'ii satislieil : -llelil, t'.inieroii, .1., dis.sont- 
 iiii,', tli.it the assi'^'iiiiieiit was not void in provid- 
 ill;; for iiayiiient of partnership creditors oidy. 
 Held, aNo, that the provision th it the trustee 
 mi^dit pay oil' any lien or charge on the a.ssets, 
 did not iiivalid.ite the assignment. Held, also, 
 
 I til it there was, under the facts stated in the re- 
 port of the case, an a;'tual and continued ch.'iTi^c 
 of possession. Ki rr v. Tin ('•maniHu iinnk of 
 r„„u,irr,; I (». \l., (). P.. |). (i.Vi. 
 
 j A deed of .'issi .'iiinent after reciting that the 
 assi'^nor was indeliled in sundry sums whicli he 
 was unilile to pay i i full, and was " desinnis of 
 making; a fair and ei|iiit ilih' distriliiition of his 
 ji'operty and ell' ts .iinoiig his creditors, for the 
 puiposeof payiii:.;.ind s.'itisfyin;.; ratilily, jiropor- 
 ti iii.itely, .and without preference or [iriority, all 
 his creditors tleir just delits," conveyed .'ill his 
 property to tii'- pliiiitill', a creditor, in trust to 
 sell, .'ind out of the proceeds to |iiy in full the 
 several di'hts, \i;.. then due liy the assignor to 
 the pi linfitV. and the several other persons and 
 tirm-i •' desi'.;n.ited in the schedule hereto 
 ,'iiini'Xed III irked 15," and if not siillieient for such 
 |iiirpose, then to distrilmte tlie assets ratahly 
 .iniongst siii'h s.'hediiled creditors ; and secondly 
 to return the siirplcs, if .iny, to the plaintilf :- 
 Held, th it .iltliouL^h the recit.d wa.s comprehen- 
 sive enouj,'li to imdiid' all creditors, the operative 
 
299 
 
 FRAUDULENT CONVEY A>X'KS. 
 
 ;300 
 
 ••I-.., 
 
 part fif tlic (hcil wan clearly nstiicttil ic n'lie- i 
 «lulr<l ruilitciis, and tliat tlic assiijriiiK nt was 
 llitrcfoif iii\ali<l. Ml-/. ■nil V. f ,'1111111111, ',V2i'. V. 
 
 r.'-'4. j 
 
 Wlicrc T. Ixiiij,' tlicii iiisulvciit, fiaiisli rrc'il 
 to A., line 111 his crcilitiirs, all liis 1 -tatf ami 
 t'H't'cts, anil it a|>|>i-airil lliat the iiripcllini.' causr 
 of the liansti r was till' apiilicatinn (pI A. to lie 
 |iai<l or protiitccl, ami I lie (Mc^t nt )ilaiiitiir, also 
 a <r»ilit"i, sonjjlit to •( t asiilc the .'•aiil tiaiis- 
 fur aN ii fiaiidiili nt jirilrii nct^ :- Si inMc, tlic 
 trniinfiT was not " Miluntary " within I!. S. < t. 
 V. IIS, anil oiiild not 1m- set aside, liiloie the 
 |iri'seid |iri'ii edin;;s A. had tianst'encd the said 
 «'(reetM tor \ aliie to 1 hona lide |nneliasi r : Held, 
 that A. eonld not. in any fviiit, he called on to 
 make ^.'oiid the value lit the ;.'oiids, (IS if he were 
 a ('editor ot the |p|:iintiir. Slumr/ it ill. V. Tn- 
 muiii il "I., :H». I!., Chy. I». IM(t. 
 
 I5y :in assiLinineiit for lieiielit of ereditnrs, ofidl 
 the rial ami peisonal estati' ol the assi;'nois. the 
 aHsignee was enniiiwered to sell the |irM|ierty an- 
 sij;mil " hy amtion or piivate lont i.iet, as a 
 whole or ill |inrtions, lor eash or on ereilit, and 
 generally on sni h terms and in such inaiiiier as 
 he shall deem hi st nr .--liitaMr, ha\ inj; ri gard to 
 these (in siiits," and the trusts wi re dii hired to 
 be, (I) for the |ia\inint of exjielisis, Cj) to ret.iiii 
 u rcason.ihle 1 om| ensation, liased niion the time 
 ami tronhle In slowed in and ••dniut the ti lists, (H) 
 after a just and ii|nitaMe dislrilaitinn of the ex- 
 |)C'liseBas hetv. ■ '■:, (lartiu islM|iand si parateistate, 
 " to jiay and divi''" tlie risiilne el the iiartner- 
 tthip estate and the siii plus of the .-^i M;iiate estates 
 unto and amoiiL: all ami im ry the en ditors of the 
 Maid |>iirtm rslii]), aii ordiii!.' to the ainoiint of 
 their res]ie<'tive elaims ralahly and jiio] ortion- 
 alily ; ami the r(S|ieetive sejiaiate estates (less 
 |)ro[)ortion of the costs, i hare' jj, exjnnsc s, and 
 allowances), and any snriiliis ot (he iiartm ishi|) 
 utitate, unto and .•imon^ the .-epaiate credituis 
 rc'Kliectively," and it was jiiov idi d that the as- 
 iiiglU'i' " shidl only he an.-weralde or ehar;;iahle 
 for williil nij;lect or delaiilt " ; llild, alliliiing 
 the JMil^-nient of the eoiiil heli.w, that the deed 
 could not he iinjieacheil aM a Iraiidiili nt prefer- 
 tiliciMif ereilitois w ilhiii tin Ail 1!. S. < >. e. IIS. 
 lititli iiiuh V. ,s7((/,;, S A. 1;. 10-'. Alliimed in 
 the Hupnnie < 'ourt, 'Jlird .luiie ISSI. 
 
 (b) Hills I,/ Sail mill Cliiilt'l Muilijiujis. 
 
 G. & 1:., hak. IS, un the ISth May, ISSO, agreed 
 with the licit nilaiits that if the latter Mould 
 supply till 111 with lioiir they would j;ivc tin 111 a 
 chattel nil lit j^a^e mi their limscs, waj.'{,'iiiis, and 
 Lakini; iiteii.-ils. I>climlants accoidiiij;ly ilcli- 
 veced fioiii day In day a i|iiantity of tfoiir to 
 G. & v.. (»n'-'(;tli .May, the chattel mortjj.ii^e not 
 Iiaviag heeii executid, the ddclulants wrote to 
 {}. &. K. to have it done. The ioiiilj,'ajj;e was 
 accordingly drawn, eoviiing the sales made, and 
 was executed hv the iiioi lga;;iiis only oil lOtll 
 June, ISSO, amriilcd on the l'_'tli. (i. iV K. ah- 
 Dcoiided on the I'.'tli, and on the I Itli dcti nd.ints 
 took possissioii under a clause in the inoi-tj,'age 
 which allowed them to do yu in ia.se the niort- 
 gajioiB ".should attiinpt to sell, dispose of, or in 
 any way part with the iinssessioii ol said gnods," 
 anil reinoveil them to their own warehouse. The 
 iUwi'tgage altiu cotiluiuud u re-deUiiHe eluUHC. The 
 
 jurat of the adidavit of hona lidcs was iiotsii;iieil 
 hy the eoliiliii>si iner. The defendants sworo 
 that they would not li.ave ailv.iiiecd the thmr if 
 this security had not been promised, and that 
 they had no intention of j<ettiliH a lileferenei- over 
 other cri-ilitor.s. The plaint ill's writ of attaeh- 
 im lit issued on the 17th .luiie, and the sin lill' 
 si i/ed the jiiMiilK under it on the .'{0th .Iiim- : — 
 Held, thai, tin ninlt^'a^e must In- 1 niisiden d an 
 haviiif,' been given w hen the eontraet to give it 
 was ciitered into, viz., when the lloiir was lirst 
 sold on credit on the iMli .May, to enableihleii- 
 ilants to carry on their busim-s ; and therefore 
 there was, under I!. S. ( >. e. IIS, m. pn-feii nee 
 of ilelendaiits, w ho bi came creditors mily by (his 
 act : Held, also, the piopi ity having passed by 
 thi" bill of sale, and the di-lendalit.s being ill 
 actual posMssiiiii when tin- plaiiitilV's attachiiniit 
 i-Hueil, that they had a right to rt-tain the 
 goods as against the plaintiil', siibjeet to the 
 niortgagors' right of aeliuii, if any, tor taking 
 piisse.-^.-.ioii befiirc- default. Si-mble, liowi ver, 
 that under the elaiisit in the mortgage above 
 nii-ntioned, defemlants were justilied in taking 
 piissessioli, when the liloltgauors abbeondetl, 
 leaving no one in 1 liari:!' of the gooilH. HiiliiiiH 
 V. Cliulc 1 1 III., h">ij. Ii. :iii-.'. 
 
 W'lu-ie Ihile is a plnmi.se to c.M-eiite a chattel 
 mortgage, iipnii the faith of which money i.-. ad- 
 v.'inceil, or when- tlnie is a jMi- existing duty to 
 ' give such a mmtgage, w hiih is in coiiseijiuuee of 
 I lircssiiie subsci|Uently executed, the mortgage is 
 not void under I!. S. »). e. IIS: Held, also, 
 that (he doctrine of pressure which ohtaineil 
 before the insolvency laws, now oeeiipics the 
 same position since their ni-e.-d. /{nii/lii/ v. 
 /-.//m 1/ III., I (». It.. Chy. I». I 111. Alliiined, see 
 
 •-'0 ('. I.. .1. IM. 
 
 I 
 
 j The plaintiU's wire exeiutinn credilors ol one 
 of two CO partners in tr;idi-, both of whom hail 
 joim d in an as>igiiiiiclit by w.iy of liiorigage of all 
 their goods and 1 hattels, and also certain 1, ihIm, 
 comprising all the real estate owned by the 
 jnilgmcnl debtor, asaii imli innity to the as>igiiee 
 against an in.-uml r.iiice on lands sohl and cuii- 
 veyeil by both p.-irliis to the assignee. The bill 
 charged that such assiglinieut w;is c.vei-utid ill 
 fraud of elcditors, as by leasoii ol the joint oceil- 
 I patioll of the pMl'llii Is the sliilil! w.-l^ unable to 
 ' aHcertain wh.it pnrlioii of sin-h i-liattels hi-loiigeil 
 I to the exeeution di lifnr. Mid [Hayed a ili-c.lar;i(ioll 
 I that such assignment was veid as against the 
 I iilaintills, and that such portion of the goods ami 
 ' lands .IS vv.-is not reuiiired to iiiili-niiiily the as- 
 signee might be sold, and tin- liroeei ds applied 
 ill paynii lit of tin- plaintitl's' rlaiiii. ,\ ihuiiiirer 
 ' by the execution dcbtur bir want of ei|iiity vva.s 
 ! allowed, w ith costs. Jliiid' uj Ituiln sli r v. .S/mn'- 
 huiisi: 1 1 III, l'7 Chy. .TJ7. 
 
 I,, being in insolvent eircumstances cM-cuteil 
 a chattel niortgagi- to |). who w;i.s eogni/aiit of 
 his slate ; and shortly af(ei- (he execution llii-reof, 
 
 ; in collusion wi(li (he nior(gagi-e, but against all 
 exiHi-ssed prohiliitinii, made a delivery or jire- 
 telided sale of the goods to one M., which W a» 
 
 ' contrary to the (einis of the iiiiir(gage, and (he 
 nior(gagce sued lor lircaeh of the eovenant (here- 
 in, adding (he cnmmoii couids, (he luorlgago 
 ha\ iiig then three months to run: Held, that 
 the mortgage and judginent, so lar as the eove- 
 iiaiil w;is eoneerned, were void, as being a trainl 
 
 - upon eveilitura. Kimj v. JJiniiiiii, 20 (hy. 113. 
 
 1 
 
;!00 
 
 301 
 
 FRAUDULENT C()NVEYAN(JE8. 
 
 :30i 
 
 
 'J lie nifirtj,'aK()r waa really iiidelittd to tlii' 
 iiioit^ii^ct' iijJdii nil UL'couiit, tlitiiigh tlie tiiiii' lor 
 iiiijliiiiit V\ii8 (Xtt lidi'tl three liiolitliH ))y tlie 
 IiiortfjJige :— llild, tliat the liiortj;a);ee WaN eiiti 
 tieil to retain hJM Jlltl^liieiit on the e(>liiliioii 
 eouiits aM there Mas not any violation ol tiie 
 Aet(l!. S. (». e. 118,) in the ilelitor wiieii sued 
 not ilJ^istill).' (III the I'aet of the credit not iiav 
 iii^' e,\|iiied, or that the deht had heen merged 
 ill thi^ nioit^'age. lit. 
 
 'I he relation of landlord and tei .mt may lie 
 created hy |iio|,er words lietwi'en iiiortjiagec and 
 ni(ii't;;!i^'oi' lor the liona lido iiiir|ioNe of fiiithi r 
 becunii>4 till' deht without lit in^ eitiier a liaiivl 
 ti|ioii eiediloiN or an evaNion of the ( hattel Mort- 
 j;aj;e Aet. '/'rii"! mitl Lutiii Co. v. LiticriiKini, ISA. 
 !{, USII. Alliruied on upiieal to .Siiiirenie Conrt. 
 
 The trudteeH of ii ehureh had lieen Hued l>y the 
 d(^feiidant, and pending' the action they |ia>Ned a 
 reMohitioii aiithoi'i/in^ the raising' liy loan of SUM) 
 to pay o It nr;;eiit elainiH, which rcciteil that it; 
 was liici ssary to give siMiirity to the parly iiiak- I 
 ing tile advaniM,'. The pi.iintill, lieiii^; (piu- of llie 
 tnistirs, then upon ad vanceil theiiioney, ulilaiii- 
 ing from the trii.-<tee.s a chattel nii>rt^a;;e on all 
 the iimvaliles ccintained in the church, \v jjicli was 
 piepiircd l>y a partner of the general s<ilicitor of 
 tlietr iistei s \N ho was defending the action against 
 th< in, liiit neither partner was called as a \\ itiiess 
 on tlic trial. In an interpleader issue the learnt il 
 juilgc IdiiiKJ for the detendant :- Held, (I'.iiitoii, 
 ,!., diihilalite,) alliimilig the iheisioii of tlieC. 
 I', hiv., that the nioitgagi' was not invalid 
 under I!. S. (>. c. '.•">, h. l.S, and the fact that all 
 the iiiovalile pripperty (pf tlii^ iiKprtgagcpis was in- 
 ehiiliil in the seinrity, was not of itself siitli- 
 cii III to satisfy the cppiirt of any fraudulent intent 
 in making it. liiuini v. Sirnl, 7 A. 1!. 7-">. 
 
 It. Iieing a creditor of A. applied to him to 
 give security for his deht, and, under threat of 
 unit, procured fiani him a chattel mortgage on 
 lli^, stiiek-in-trade Although Ii. knew A. to he 
 in dilliciiltii H, and had also the nieaiiH (pf haul- 
 ing that he w.'iH iiiMplvent, it did not appear that 
 he aclualiy knew that A. was insolvent w hen he 
 oht.iiiiiil the mortgage ; wliili' the mortgagor 
 Hoiight to gain time and to go on with his hiisi- 
 iicss :- Held, that the mortg.ige given nmlcr 
 such circumstancis was n(it a fraininlcnt piefer- 
 once within 1!. S. (). e. IIS. Snj.^irorlli v. J/i //■ 
 ihi, .Silnr I'lulhiij Co., :i (». !!.,'( hy. I». tl.'t. 
 
 The phiiiitill' wa,s ninrried in 1,S7<! w ithiput any 
 marriage contnict or MettUlneiit, lieing pipssi sscd 
 of ahoiit i'l.r.t.O ilerived fri ni thi' estate of a 
 former hiislpand, which she lent at dill'erent times 
 to her hushand, directly or in paying his dilpfs, 
 a small portion havnig heen lent prior to their 
 niariiage. In .laniiary, 187!*, on a further ad-' 
 Vance of ij'JdO, she olilained from her hnslp;ind a 
 diattel mortgage of eertain goods, farm stipck, 
 iuipleinciits and other chattels, which was duly 
 rcgi.>tiied IpUI notreneweil. In N<pVenil>er, Isjlt, 
 she insistcil upon and ol)taine<l from her huslpaiiil 
 
 a hill of sale and other g In, for the exinesscd 
 
 cppiisidi i.itiiiii (pf .*.■«)(). The plaintill an.! her 
 hu.>ilian<l I'iPiitiiiued to reside tipgetiier, am' appa- 
 rently had the UHc of the g Is in much the 
 
 same way as priipr to such hill ipf sale heing maile, 
 she and lier sons working the farm on which the 
 parties resided, and which had liecn cipiiv eyeil hy 
 iii-r hnslpand to a trustee for the hi'iiclit of the 
 plaintiir, the huuhand working or not a:i pleased 
 
 hiniNelf. 'I'lie evideiieo UHtahlisheil the Ixpiia 
 tides of the claims set lip hy the ]ilaintifr, and 
 l<pr the pnrpcpHu ol securing ii creditor ol the hus- 
 hand she executed a chattel niortgage in her own 
 name on the giptpdi* :~ Held (alllMiiiliL: the .liidgc 
 «pf the County (ourt, ^'ork), that the hill of sale 
 anil chattel mortgage werempt(p|«n to ohjectiipu 
 as heing given direct to the wife liy the liiishand ; 
 anil that even if her title nniler theeh.ittel niiprt- 
 gage could n(pt he Mip]poited for want of a siilli 
 cient cliangt! of posschsiipii, she could i^laini undor 
 the hill ol salt,', wliic.i heing ohlaiiied hy pressure 
 was iKpt a fraudulent prefercliee under It. S. <). 
 c. IIH. Ti,ll,u v. Il<,ii;ii, S A. l;. IK)'.'. 
 
 Held, in this case, that inasmuch as the mort 
 gagor was coerced into niakiii!.' the sip'ond mort- 
 gage', the making of such inortg.'ig*; colild not he 
 regarded as a frauiliilelit pii.'ferelice. Tiili i/ v. 
 Cniil,, \ (>. i;., (hy. I). (I'.K). 
 
 111. r.V .M.MiKIAiii; SKrii.KMKsr. 
 
 I. Jiij'fin: Miirriiii/i'. 
 
 The ilefeiidant l>., w ho wascarryiiig on a thriv- 
 ing hiisiniss, and ptPSscHsed of per.MPlial piiplierty 
 tip the value of aholit S!|,(KM1, his di hts not ex- 
 ceeding hall that siini, in lH7l) hoiight -oine land 
 w liich he li.'id conveyed to his wife, w ho had heen 
 in.-ti unieiit.il ill iiici easing the eaining.s of her 
 hiislpand. It was shewn th.itall ilehtMliie hy H. 
 at the time of the .settlement had heen paid he- 
 fore the iii.stitution of this suit hy the plaintill', 
 w host cIcIpI hail u ci mil alter this cunvi'yanco : — 
 Held, under the circumstances', that the plaintilT 
 was not in a position to impeach the conveyance, 
 as it had not heen made W'tli a view of placing 
 the propel ty heyond the reach of future creili- 
 toi'H. Cdlliinl \. liiiiiiill, 'JSChy. ."luti. 
 
 In liS77, 1!-, heing in dillieulties, could not oh- 
 t.iin credit. In \>uS the deht to the plaintill' was 
 contracted, and in the same year l'>. made addi- 
 tions to the house on the land, which he p-'iid 
 for :- Held, that in respect of the nioinys soex- 
 )pendeil, the case came within the ]piini iplo of 
 Jai kson /•. rownian, II L'liy. lijti. Id. 
 
 In Novemher, IH7fi, a marriage heing loiitem- 
 lilatcd hit ween the defendant am' M. , the defen- 
 dant's father prip]pipseil that M. shnuld erect a 
 house, which he had iliteiiiled h lildiiiL,', on a lot 
 helonging to the 'at her, vvhoagreid to convey the 
 s.'inie to his daiigliter as ji niairi.ige jportio'i. This 
 M. .isscnteil to, and in that month the marriage 
 took ]ilai'e. huring the year following .M. huilt 
 the house and his latlier-iu-law coiivev i d the lot 
 to the defendant as had heen previously agieeil 
 upon. In .lannary, IS.SO, M. hccanie iesolvent, 
 and proeeediiigs were taken h^ his ;issi;^iiuu to 
 have the transaction declared Iramluleiit an 
 .igainst creditors, under the llWnd .section of the 
 Insolvent Act, 187;"); or under the Ilith l'!lizaheth, 
 c. .'■> • Held, (alliimilig the ilccice III rroiidfont, 
 \'.('., 'J7 < hy. 1>S.'!,) that no fiauili.lenl intentii'll 
 was shewn on the part of M., and any Uiiowledgo 
 hj the ilefeiidant or her father wa.s distinotly 
 lieg.itived hy the evidence, and t'ulclore the 
 traiisaetion could not he imjieaclied upulcr either 
 statute. .lack.soii c. r>owmaii, 11 Cliy. !">(!, re- 
 marked upon, distinguished and ajpinoved of. 
 l)an,lM<ii V. M«>itiin', 7 A. It. !)8. 
 
 See JJoii^/niil v. Sliiiir, '27 t'hy. 'JHO. p. SO.'J. 
 See also J/il/^r/.- v. Jliilloii, -ill (,'hy. 4;it>. 
 
:3o;5 
 
 FRAUDULKNT CON VEYANOEH. 
 
 304 
 
 « r-f 
 
 2. Afli f Mitffiiitji'. 
 
 S., II wliiiliHiili' iiiri'i'Imnt, u|»m the treaty for 
 iii,irri.ij;r witli tlii' (icli'iuliiiit, uimI jit lu'r hiij^ck- 
 tiiiii, viili.illy ii^'ifiil to iiiuki.' iirovisioii or scttlr- 
 llii'iit lor liir lirlii'lit, and |iro|ioMi'(| tiu' |iiii'i'Ii;imi! 
 of !i |p.iiti(iiliir |iro|«'rty for tli-il ]iiir|iosi'. Siili 
 H(M|iiciitly, mill afti'r tin' iiiarri.ij,"' li'i'l t'lkfii 
 |iliiir, wiiiili wwn. ill IH7»', tin- |irii|>i'rty ri'fcrii'il 
 to WHS sold, Iiiit iirodiiciii^'u l,ii>,'ir .miiiii than w.is 
 !inliii|ial<d, ;•!. did not Imy. Altci wards, and lic- 
 tw.cli tlii'lth ol April, I.ST'J, ;iiid the lOtli of 
 .liiiif, IH7M, S. iiiircliasid aiiioii;;st otlur iiro|ii'r- 
 tics four several pari'ils of iaml, for tlic allr^^cd 
 |iiir|iosi' ol I lie |iro|iosiMl si'tlli'iiaiit, \\lii('li, \>itli 
 till' iiii|iri>veiiii'iit.s |iiit tlienoii, uinoiiiitt'il to 
 Sir>,.'t'.'(l, nr tluiial)o|its ; hoiih' of tlic I'oiivcy 
 lllKTS of wliicli it was alli';4i'd weii' in ell or tiikrii 
 to S. Iiiiiisilf, who, two years afterwards, eon- 
 Vcyed I he s line in tiust for his « ife, liut the deed 
 Win not re;^is(ered Until tliret' years after its date. 
 .S. suli>i'<|iiently lieeanie insolvent, and on a l>ill 
 tiled liy the assi;.'iiee of his estate ini|ie:uiiiii;,' tlie 
 eoiiveyaiie( in trust as a fraud u|ion ere litois, 
 tile eoiiit (I'roudloot, \'. ('.,) lieiliK satis'ied •''•''*■ 
 an agreement, tliou;4li vurlial, hail Ixin made liy 
 thu parties luior to the inarriane, althoui,di the 
 only evidinee thereof was that of the |iaities 
 themselves, and that the eoiiveyaiiees of the 
 Jiareels to S. had lieeii so made liy mistake, de 
 elared the defendant entitled to hold the lands 
 in setth'iiient, and ilismisseil the liill, with eosts. 
 It was allii;eil tli.it S. was iiidelited at the time 
 of tht^ settlement, liut lllioli the evideliee set out 
 in the report of this ease, it was held that this 
 was not shewn, and that thec^ntrv of some of the 
 pro|M'itv in llie liusiness liooksof S. as an asset did 
 not, under t he eiieumstaneeH shew th.it it reni.iin. 
 I'd his pl'o|ierty. liniixlniil v. SIkih; 'JJ ('h,V. -SO. 
 
 One of the inemlier.s of a tradiiii,' llrni, in 
 Marili, 1S7">, ell'eeted ;i voluntary settleiiieiit on 
 his \\ ill' of 1,'ind on which he h.ld erected a dwel 
 liii^' house at an expense of .'^.'l.OdO, and in duly 
 lolliiwili),' the linn were eonilielled to elleet a 
 eompromise of their lialiilities, and tiiially, in 
 leliiiiary, IH77, lu'eame insolvi^nt. The pl.iintiH' 
 was aiipointed tiieir assij^nee, and thereupon 
 tiled a liil! iiiipeai^liini{ tht; settlement as haviii;.; 
 lieen made, while insolvent, with a view of 
 defraudin;,' creditors. There was no evidence 
 that any ilelit due at the tinitt of makint; the set- 
 tlement was impaiil at the date of the insolvency. 
 I'ndei these eireumst.inces the court, on rehear- 
 ing,', reversed a decree of I'roudloot, \'. C, di- 
 roetinj,' the payment of tin; |ilaintitl"s claim out 
 of the est.ite reni.iinini,' after the payment of two 
 niort'.,'a!,'es created liy the wife and repaying; to 
 the wife what, if anythinj,', slie had paid on 
 aceount of the ]iurcliasu of the land, and ilis- 
 inisRcd the hill without prejudice to the rij^ht to 
 institute proceedings to olitain relief out of any 
 sep.ii'.ite est.ito of the wife, /tdrliiii/ v. /'rin , 
 
 ■-'7<'hy. :n\. 
 
 'I'lio defendant V. was married in ISI!I without 
 an.y setth iiieiit. He was .ippointi'd ami .•leted as 
 executor of the estate of his wife's fitlier, and, 
 acting on ln'half of his wife, he received l,u;;e 
 sums from the estate which it w;is alle;,'ed he 
 liorrowed from her : - L'7,tilH) lielnre I.S.'i!!, and 
 t''_',NO0 in l.S7!l; all such moneys lieiii^' ch.irijed 
 to the wife in the luioks of thecstate. 'I'lle enn- 
 veyaiiites im|ieaclied in this suit Were of l.inils 
 which, with other property, had liceii piireliasei! 
 
 hy the liiisliaiiil with the ninncys so received on 
 
 ' aceount of his wife, the deeds for which, how- 
 ever, had lieeii taken in the name of !<'. Tho 
 mother of his wife had freipieiitly reipiested !•'. 
 to settle these properties on the wife, and which 
 he did not ohjei't to do, and in IH7.'<, when he 
 w itii his wife was aliout to visit I'lurope, I'', diil 
 convey the pro|ierty in ipiestion to the wife. In 
 lS7'Jaiiil IH7.'{ I'"., jointly with one ('., entered 
 into extensive speeulationH and made a eonsider- 
 alile amount of money. In IH7:{ !•'. endorsed C.'b 
 note for S|(),(MHI, wliich ('. discounted, and thu 
 same remained unpaid, and I'', in IH71 ^,'ave his 
 chei|Ue to the |ilaintil!' for !?4,(Kht on which thiu 
 suit was instituted : Held, (I) that as to the 
 Cy.liOlt, I'", haviiij; aeti'd for his wife in olitaining 
 this iniiliey from Iht father's estate, and having 
 
 ■ never made any el.iim thereto in exerci.-'e ot liia 
 m.irital riijlit, having' liorrowed it only, as estah- 
 lished liy tho testimony of the wife's mother, 
 there was no rednction into possessidii liy tho 
 husli.'ind of the money. ('-') .'\nd as to thu 
 C'J.SIK) the onus was upon the plaintill' to estab- 
 lish a v'ift' to the hnsli.'ind liy the wife, w hieli liu 
 lailid to do; on the contrary, the evidenco 
 shewed it to have lieen a lo:tii. When I'', incurred 
 till' li.iliility for ('., he was in allliient eircuni- 
 staiiees, and continued to lie so for a yi'ar after 
 
 I the eonveyaiiee impeached in this suit, after 
 whiih perioil the lialiility to the pl.iintill' was 
 incurred: Held, that the plaiiilill' was not, la 
 
 I respect of his own claim, in a position to ini- 
 pe.ieli the conveyance, and eould not lie in a 
 lietter iiosition than the prior eri.'ditors, who 
 ele irly could not have avoide<l the transaction, 
 the settlenu'iit having lieen made w hen the settlor 
 in a pecuniary point of view was well alile to 
 make it. Viitdiii v. I'mmr, iliSCIiy. "lOl'. 
 
 A husliand, not lieint,' in delit or enj,'a),'ed in or 
 contemplating; en^a;;in;^ in husiness, lioiij^ht cer- 
 tain land and stoi'k thereon from om; <'., thu 
 ' purchase money eomprising nearly all the him- 
 ' liand's means, and procured ( '. to make thu 
 conviyanee and assignment thereof direct to the 
 wife, whoh.'id lieen married to her husliand in 
 I I.SdO without any marriaj^e contr.iet or settle- 
 I men ; and the wife mortgaj,'ed the property to 
 I the pliintitr. In an interpleader action lietween 
 i the pl.iintitl and defendants, suliseipn'nt exeeu- 
 i tion creditors of the husliand, to try the title to 
 ' thealiove stock : -Held, that the hnsli.ind, Itcing 
 in a position to iiiake such volnnt iry ;^ift or set- 
 tlement, the conveyance was ^'ood : that the 
 ; property in ipU'stion was the wife's enuitalilc 
 separate estate, and was not atl'eeted liy sec. 5 
 of the .Married Woman's I'roiierty .Vet, l{. S. <). 
 c. I'J,"), which leaves such settleni nts untouched. 
 j I'er Osier, .1. The lej,',il ownership of th" goods 
 ' woidd Vest in the husliand in his marital right, 
 and to constitute him a trustee for his wife tliero 
 f must lie clear and convincing eviilence of an in- 
 , tention on his jiart to make himself su> h trustee, 
 and divest hiiu.self of all title to or interest in 
 the property, and to enalilt the 'vile to .tli.iolutely 
 disjiose of it ; while the evidence lieie merely 
 shewed that, though the goods wen; formally 
 assigned to her, and she was to li.ive tlu^ use and 
 enjoyment of them, the right to alien .-ii-d disposu 
 , of them was to remain in the hiisli.ind. ( >' /hiln rtij 
 y. Thr () III, trio li,iiik;'.Vl V. V. '.'«."». I'liis casu 
 is in apjieal. 
 
 Sec Baivis v. Mivjuire, 7 A. R. 704, p. 2i)5. 
 
 i 
 
:jor. 
 
 KltA(Tl3UliKNT J UlKJMKNT. 
 
 306 
 
 IV. I'liAt ri< i; IN SKiriNd Asidk, 
 
 1, Plcdi/iiiji mill /'iirlli.i, 
 
 Wlicn- ft Hiiit Im iiistitiit(Ml liy ii jiiil){iiioiit ere- 
 
 ilitor, wlio \\M* licit pi: I nil cxciiiitioii ;i;;;uriHt 
 
 Ihii'Is ill tilt! Iiainls III' tin: slii'i'iH', in nrilcv tn Net 
 nxi'lc :i ilci'il iiM rr.uiiluli'iit, lic^ iiiiiMt hik' mi lii'lnlf 
 «>l' 111! cicilitiii's ipf till' ilifi'iiiliiit, mill till' fju't 
 til it till' ili'i'il was iii.uli' liy ,1 tliii'il |i;irty in imim- 
 iiiili'>'atii>ii iif iiiiiiii'V p.'iiil liy till' ili'litiir iIih'h nut 
 iilti'i' till' mil! iif pli'iiliiiL! in tliis rrspn^t. .l/oc- 
 jilnix. ir*7^n;/, 'J7 • 'liy. I. 
 
 Till' pliinlitr liU'il lii'i' liill for iiliniipny, ,'illi';,'ini,' 
 til it a riiiispirai'v li.iil liri'ii iiiIiT'iI into lii'twi'iin 
 lii'i' liiisliiiiil Mini till' III lii.'i' ili'li'iiil lilt tn |ii'i!Vi!iit 
 InT I'lMJi/iiiL,' .iny alinnpiiy tliit iiiiLtlit lii' awanli'il 
 lirr, anil tli it fur til it imrp'iHi' Iut liiisliainl rrainl- 
 llli'iitly I'lilivi'Viil all his l.iiiil i to tlii' i:i)-ili.'l'oii 
 ilaiit. anil tin' liill |ii'.iyi'il tn lia\i! snrli I'lnivry- 
 Hill'.' ili'i'lai'i'il fi'iinliiirnt. 'I'lii' ;,'i'anti'i' in tlii' iiii- 
 |H'a>'lii'il (Miiivcyania! ilrniiii'i'iil Inr iiinititaiiiiii.s- 
 iii'ss, for want of <'i|iiily, ami want of jiirtii's. 
 Till' Ciiiirt, (Biyil, ( '.,) inrrrnliil Ww. .li'iniiriiT 
 on till' llrst l\\n 1,'i'iiiin'ls Imt allnwi'd tlir drniiir 
 rer fur want of partir s ; tlii' pi .intlll' not li aviii;; 
 rcrovi'i'iil Jiiil;^Mii'nt ami I'Si riition imilil only sin; 
 ill a rrpii'sriitativi! rijiarity tliat is on liolialf of 
 lirrsi'lf anil all ntlii'r I'ri'ijitors. Loiii^rway /'. 
 Miti'li.ll. 17 Chy. 1!I0; ■riinnr c. Smith', •_>(; 
 Chv. l!tS; Cnlvi'V r. Sway/,.', •_'(;( 'hy. .•t:i.->, ami 
 Morpliv v. Wilson, '.'T ''liy. I, I'onsiili'ri'il ami 
 fiillowi'il. Ciiii/ilii'll V. I 'iiiii/i'iill, •_'!! ( 'hy. 'J,V.». 
 
 Ill nil ai'tidii to Hot nsjili; a conveyanoo of lanil 
 ns ,'1 fraiiiiiili'iit pri'ti'i'i'iic'c tlii' iion-avi^rini'iit tli;it 
 till' |il.'>iiiliir sni's on liihalf of all otiii'i' I'l'iMlitois 
 iH not ;,ronml fur iliiniiiri'i', lint ,i nirri! iiilor 
 liialitv, til III' ili'alt with ninli'r ( ». .1. Ai't, liiilrs 
 lO.'l, iol. Si-inir il III. V. I)iii-I,;tl il «//., ;{ (». It., 
 Chy. It. :!70. , 
 
 Till' pi;iiiitill's, A. k ■\. lili'il a liill fnrthi' pur- 
 iiiisi' III II iviiij,' a ili'i'il innli' to thr ili'fi'inl ant liy 
 .1. ili'i'l.ii'i'il viiiil, as liavili;,' liri'ii olit lini'il liy 
 frainl ami iiiisrcprrsi-ntatiiin. Tin' liill alli'i,'ril 
 that .1. h 111 siilisi'i|m'ntly in nli' a ih.'i'il iif this 
 «iliili! prnii'rty to .\., fur thi! piirpmrof rum 'ily- 
 iii^, as fir as hr cuiiM, thr wrniii,' hi' li ul ilniii' 
 l>y oiiiiv.'\ ill:,' til till! ili'l'i'ii'l'iiit till' liill alli'^^'iiij,' 
 that sii 'Il ilriiil to .\. was iiiaili' to him " as 
 triisti!!! for till! Iii'irs nf A. .M.," wli'i Iml ilii!il 
 8ui/ial. Till! liill ill iiiipla'!ii alli",'iii| that .A. w.is 
 trii.strc. lint in tlic! followiiiL! pari'^'rapli it was 
 .stati'il thit "lii'fori! till' i'X''i'iitiiiii of siii'li hut 
 iiU'iition.'l i|i'i"l till! hi'irsof tlii' s.'iiil .\. M , who 
 arn thr ri,'litfiil owni'i's nf'tlii' siiil laii'l," itc. — 
 JIolil, th it mitwithstainlinn tlii! al)si!iu;i! of any 
 cxprr-s ;illi','itioii of A. lii'ini,' sii.'li triisti!!!, snili- ; 
 ciuiit w IS sl.itml to show that hn liul ai:i:i!pti!il 
 till! iillii'i' of triisti'i!, anil as such w.is i:ntitli:il to , 
 
 litiijMli.' the snliJL'i;t III ltti!isiii' till! hill, ;ui.| ;i ili!- 
 
 iinirrer for want of i'i|iiit\' w.is nvi'i'-riiluil with 
 costs, .l/i- /<-'(/( V. />/'»f(,' •.»!»( :iiy. .'lOT. ' 
 
 A ilcninrror ore tonus for niisjiiinil(!r of plaiii- 
 tifl's, it appi'arir.j; hy tlii' hill that;.!, hail no inti'i-- 
 cstiii till' ipii'stioiiN raiscil, w.is allownl, without 
 coiits. KiiL'he i: .liirilaii, '10 ( 'hy. ruW, followoil. 
 lb. - J . 
 
 Till' iiirhoati' rii^ht of ilownr .-it law, obtaiiiL'il 
 liy a will' in lami lonvoyijil to hrr liiish.iml, 
 makis Inr a piiipir party ilufrinlant tn a suit to 
 set sui'h I'oiivt'vami- asii'li'. M, t'nrhiiid v. .l/c- 
 Fiirhinil, '.I I". K. :;{. -Boy.l. 
 
 ao 
 
 I 2. CohIh. 
 
 Ill ft Hiiit to Bot ft«ii1(! a convoyftiico on tlm 
 Ki'iiiinil of w.iiit of roiisiili'r.itiiin, it was ftlli-^i'il 
 th.'it till! Lfraiitor w is limlily ami iiiriit illy intirin, 
 liiit till' i'viili!iii'i> nIh'wi'iI tli.it till' only iliO'i'i'i'in'O 
 lii'twoi'ii till! >,'rHntiir ami tjrinti'i' was, that tlio 
 fornn'r w IS an oMrr man than tln'ollpr. Tlio 
 >,'r.iiiti'i', hnwi'vi'r, h nl yi'i'ii alioiit tin' full mar 
 ki!t valiii' of till! I.iiiil I'liiivryi'il, iiml to si'i'iirn 
 part of till' piirrhasi' iiioin'y, had i'\"i'iiti'il it 
 iiiort;,' ij,'i! thi'i'i'iiii. Ill ilisinis^iiiL! tin' liill tlio 
 ('onrt, (l''i!i'!,'iisoii, .!.,) iliii'i'ti'il tin' I'osts of tlio 
 ilrfi'iiilant til III! ili'iliii'tril from tin' aniount iliiu 
 nii'li'r till! iiioi (;> iifi', if till! I'osts will! not p.tiil 
 within a iiioiith, it iii!iiii{ alli';;i'il th it tli'' iirxt 
 frii-ml of till! pl.aintill' was worthlu.ss. Tnirit v, 
 III 11, ■-'!»( 'hy. l.iO. 
 
 ;}. Olhir rd.sc.-i. 
 
 I .Mthimi^li ft niortL;'ii,'i'n lias no ri'^lit to (lom- 
 plaiii of any siilis.'(|iii'iit ili'aliiij,' with tin' rst ito 
 liy till' inorl'^' I'^'iir, tln-ri' is nothinii to prrviiiit 
 
 him, if his I'l lini is loft mis itislii'<l fr suin^; on 
 
 till' I'livi'iiant in tin' iiiortLjmi'. anil proi'i'i'iliii!,' to 
 
 a H ill! nil lor I'X itimi or applyin.; to this roiirt 
 
 to ri'inovi' any >ailisi'ipii'nt fianiliili'iit I'onvoy- 
 ani'i! wliioli iiitrrfi'i'i's with tin' it ili/. ilion of lii.'i 
 i;l aim. /'<//'/• v. Miiiil'juiiirii, '11 i'\\y. .VJl. 
 
 I'. I'ri'ati'il tliri'i- si'vi-ril inort'^'ii'^'i's on si')iarftt(! 
 portions of his i'<t,ili', in ;ill ah nit I Ml .arri'S, 
 ' I'stiin iti'il as worth •'^'i, 01)0, snlip'ot to iiii:iiiii- 
 lirinci's aiiiiinntinu' to ><.'l,.''i(M) .iml inti'iTst. One 
 of till' iniirt!/ai,'i's was in favour of tin' ili'lrinlftiit 
 .M., who siiIhc pi'iitly aoipiiri'd tin- inti'n'sts of 
 till- otiii'r two niorti,' 11,'i'i's. .Affi'i' tin' i'ri!ition 
 of tlii'si' in irt'^iL,'i's, P. i!Xi'i'uti'd .'i ilri' I of trust 
 of th" wlioli- property in ordor to d 'f" it .i I'liiin 
 of titli' si't lip to ti'ii ai!ri'S liy oni! I^. I>i'faiilt 
 w.H null' ill piyiii'iit of .M.'s iiioi't ^' ii^'n. who 
 iiistitnti'd proi'iH' liir^^s at law and ri'i'ovi'ri'd jnd;^- 
 iiii!iit oil wliii'li 111' sui'd nut I'X.'.'iitioii, ml iindor 
 it till! sli Till' (aft'r i\\'. d'!f.'nliiit M. hid .so 
 ai'ipiiri'd till! nth 'r in irti,'i'.,'i!s| prmin'li'l to il 
 sail! of til! pi'iii)"rty, wliioli In- oir'ri'd in thriio 
 ilistim't p ii'i'iils, and M. liil for and li 'n uil'i tho 
 piirrli is.'r of ill at sunn .iin nnitiii,' in Mi ! wliolo 
 to *!'iO. Till! ri!<tnis i|'ii! trust th 'r!'ip III lihid 'i 
 hill to n'l(!cin, alli".,'in:; that tin- sihi to NT. Iial 
 hiinn at a i,'i'oji iiii'l'!rvaliii!, an 1 priyiii^ to li ivo 
 till! si'ii ' Sit ui 1 ' ; th ) I'nirt, h iw 'V'r rufmcl 
 till' ri'lii f .iski'd, with i''ists, liiiiii,; of opinion 
 that till! ili!i'l of trust wis frau I'll'iit, .iii I t'lafc 
 till' priim I'.! ili/. 'I sv is I iri,'i!, ciiHidirin^' th it it 
 w IS ,1 slmi'iir's salo. //(. 
 
 A i:ri!ditor's asniijiioo, not liiuni'.lf a i!ri!ilitor, 
 cannot siistiiii an artioii to siit isidii a fr iii'liiliiiit 
 i!on\ I'V ini!i! or tr.insfiir undo hv th : iKihtor, 
 jirior tn till' assi','niiii!iit iiiidiT wliioh h \ ol liiiis to 
 liL' siii'h ,'issi^'m!i'. /jiiiimliu v. Snill, I O. II. (Miy. 
 
 u ;i-';(. 
 
 KRAUDlJLKNrr .llJDlJMKN T. 
 
 .A 111 111 in iinolvi!iit i;iri'uiint inoiM wis suoil 
 ftlinilt till! s inu; tinu;, hy two croditnrs, njiii of tlio 
 pliintill's lioin^' his soil. To tho on ! lolinii ho 
 initcni I a dofmiiio, while tn tin) otiuir -thai; 
 Inn i:;ht liy his smi ho in uKi no di!li:iii;o hy re i- 
 .son of which jii 1 .'nioiit was oht.iiiii!.! Ihcrciu, auil 
 
^ 
 
 ^. 
 
 
 IMAGE EVALUATION 
 TEST TARGET (MT-3) 
 
 1.0 
 
 I.I 
 
 15.0 ^^^* H^^H 
 
 ^ 122 12.2 
 
 lis 
 
 12.0 
 
 L25 ||LU|lA 
 
 Photographic 
 
 Sciences 
 Corporation 
 
 23 WIST MAIN STICn 
 
 WnSTilt,N.Y. USM 
 
 (716) •72-4503 
 
i 
 
307 
 
 FRIENDLY SOCIETY. 
 
 308 
 
 ::^\. 
 
 all Ilia fiVt'cts sold, wliich woe lioiioht in l)y an 
 anient (li tliu i-dii, tliu mIkiIc njali/iiig kss tlinu 
 tlif (kljt, iiitciLst, and costs. 'J'lic amount clainiod \ 
 ]>y tlio son wa.s admitted to bo a liona tide doht. ■ 
 'I'lic court (S]iia{.'gi;, (_'.) : — IJcld, that tlic icliain- , 
 iug fioii; jiuttingin a defence to tlie action l)i(iught 
 by tlic .'<oii wan not such a facilitating of lii.-^ re- j 
 covciini; judgment as was jn dhiliitcd liy the stat- i 
 lite— (Ji. S. U. o. IKS) in this following "\'(]>ing , 
 •/■. Chri.-tic, TC'liy. ;il7. Ltil^dll v. /«.-./, :;«(. liy. ; 
 593. !See also yv!/»/ V. y^«/HY(//, 2!) (. hy, ]l;j. ! 
 
 The defendant ('., ucfcnded an action biouylit 
 against him by the |ilaii, tills, vhik' in an action 
 brought against him by defendant S., he entered 
 an aii)ieaiauce and 1^ ' , tilca Some days before , 
 the ])lea was due, ;.• .. on the same day tiled a 
 I'elicta veriticatione, wl > ■ ;Mjo:) judgment was ' 
 signed and execution is.- .. held, that the.-e 
 ^iroeeediogs did not otlciit iigninst til 3 l)ro\ir.ions 
 of the All. li. S. O. o. il ', s. 1 ; following in 
 this the decisions ill Voii ■ , /■.Ciiristie.T ( hy. ol"J; 
 ■McKinnar Smith. 10 • hj. -10; I.abatt r. JJixell, , 
 2S I'hy- oi'-'i ; iiud Mackeiiie r. ^\'att, deci<led in 
 aiipeal -JMh JS'ov., 1S81. JJcanuiii v. ,V'((/(, Hi) 
 Lhy. -278. 
 
 The defendant, a creditor of 0., who was in 
 insolvent ciieumstauces, commenced an action 
 on the -5th May, lb82. lly arrangement with 
 O., who ai'lica- 1, pleaded to the ijlaintill 's 
 stalcmiut ot claim, and c(iistntcd to an order 
 striking out his defence, a judgment was obtained 
 the next day. L'hc plaintitt' conimcnecd ]iro- 
 ceedings immediately after the defendant, and 
 in due eoui.se (jbtained judgn;cnt again.-t (.»., and 
 the validity of the defendant's judgment came in 
 question (iu interpleader :— Held, following the 
 deeisiens under Jt. !S. ()., c. IKS, that the defen- 
 dant's judgment was valid :— ]'er Amicjur, ,7. — 
 If the Uiatter was res integr:;, ()., by actively in- 
 terfering to enable the defendant to receiver a 
 jiidgnunt against him tceiier than by due course 
 of law lieothiiwise could have done, vas giving 
 a eonlcbsion (jf judgment within the Wdrds of the 
 Act, and ceitainly within its spiiit. Tun vr v. 
 Lucas it (iL, 1 O. IK, (^). B. i). (i'J3. 
 
 The iilaintiir was suing the defendant, F., who 
 was in insolvent circuuistanecs, \\lien the defen- 
 dant, Jl., applied to him, and by threats of ac- 
 tion to lufoiee his claim, and a jiu niise to give 
 time to F. if he acceded to his re(]Uest, induced 
 F. to execute a cognovit thereby M. obtainul 
 priority over the plaintiflF. Jioth parties jilaced 
 writ.^ of exei ution in the sherill "s hands. Under 
 that at the suit of M., the gotds of F. were sold, 
 M. buying part theieof, the price (jf which he 
 retainid onaccountof his judgment and received 
 the balance fidm tlie sheritl :— Held, reversing 
 the judgment of the eouit below, 3 O. 1{. 41)1*, 
 that the lognovit vas collusi^e and void under 
 E. S. O. c. 118, s. 1, and the amount realiyed at 
 the sale by the sherill was projerl^ a}plicable to 
 the plaintitl's writ :— Held, also, that a judg- 
 ment forjajmenl by M. to the plainlill of the 
 pioceidsof the .'^ale could piopirly be made' in 
 this action. Jilditiii v. MvAlpim if <//., 8 A. IK 
 C75. 
 
 Where certain persons who were liable ns en- 
 dorsers of eeitain pre niispoiy notes not yet due, 
 kn<.wing the maker's insolvent eiuunistances, 
 under threat of suit, induced him to give a cog- 
 novit aetionini, whereon they entered judgment 
 
 and issued execution : — Held, not such pressure 
 as exempted the cognovit and subsc(|uent pro- 
 ceedings from being collusive, fraudulent, and 
 voiil within IK IS. O. c. 118. T/n- Mvrkli u H'llrtr 
 Co. V. Let H a!, -2 O. IK, thy. D. 451. 
 
 A mercantile firm obtained from their debtor 
 jiromii^sory notes for the amount of his in- 
 debtedness which notes theyjendorsed to third 
 parties ; before the notes wcie due and 
 while they weic still outstaiuling in the hands 
 of third parties they applied to the debtor 
 to give a cognovit actionem, know iug at the time 
 that he had recently given a ehattil mortgage on 
 his stock in trade and waslujiielessly iiisolvent — 
 aiul uiulcr threat of suit the debtor gave the cog- 
 novit, upon which judgment was entereil and ex- 
 ecution issued :-Ilil(i, a fraudulent preference 
 and that the judgment and execution were fraud- 
 ulent and void undel- IK S. (). c. US: — Jlcld, 
 also, that the transaction could not be rujiported 
 (,\i tlie ground of pressure, j^x parte Hall, L. IK 
 IDChy. .1). 580 foll(,wed. J/,. 
 
 T\v(!nty-two months after judgment had been 
 signed in an action on jiromissory notes for want 
 of a plea and execution issued, and the defend;' : t 
 exanuned as a judgment debtor, leave was re- 
 fused to set aside the judgment, and amend the 
 declaration by charging the defendant with fraud 
 within themcaningof the Insolvent Act of 1875. 
 
 i Liijlil/,i,iiN(l V. J/!//, t) 1'. IK L'lto.— Dalton, 
 
 ' J\la.-^l, r. 
 
 I [See 47 Vict. c. 10, s. 3, amending JK S. 0. 
 c. 118, s. 2J. 
 
 FREE t;i!AKTS A2sD JKjMES'J'EAU.S ACT. 
 
 I I!y the IK S. 0. c. 24, free grants of lands for 
 , homesteads are only authorized to 1 e made to 
 ' men. Jt'oiji r.s v. LoirlhUm, 27 C'hy. 55!). 
 
 1 8ec Canada Ptrmanunt Loan and Sin'imja Co. 
 ' V. Taylor, 31 V. P. 41, p. ]<J4. 
 
 Fl{IE2sDLY SOt'IETY. 
 
 0. was a member of t'ouit Maple of the defen- 
 dants' older and was insured under the endow- 
 ment )irovisiolis thircof for ."irl.CCO. I'liis court 
 left the order in a body and joined another order 
 of Foresters, and it was in consc(|Ucnce sus- 
 pended. On joining the ni w oKler it was ar- 
 raiigid that ()., who w.is in ill health and had 
 gone to California for change, should be taken 
 and insured with the others. J!y the rules of 
 the defendant's order numbers of susi)indcd 
 courts ill good staiuling at snspcnsion were, on 
 application within thirty days to the supreiiic 
 secretary, and jiajment of a tee of iSl, to receive 
 a card of menibership and be entitled to the en- 
 dowment, provided they paid all assessments as 
 they fell due, and atliliatcd with another hxlge 
 (if the order ; but, if after thirty days, they must 
 pass a midical examination. O., en his return 
 
 1 Irom (.'aliforiiia, on aKcrtaiuing that Court Maple 
 had been suspnidei , within the thiity days, being 
 
 ' thin in good standing, applied to the <leleiidaiits 
 suiiitme secretary for his eard of nundieiship, 
 tendering •*! and assessments due, which was re- 
 fused on the gnuind that a nudieal certificate 
 
 ! was necessary. U., by reason of his not having 
 
309 
 
 GIFT. 
 
 310 
 
 the card, was prevented from affiliating though 
 he endeavoured to do so, witli another court. 13y 
 the endowment certificate the $1,000 was pay- 
 able to the widow, orphans, or legal heirs of O., 
 and by endorsement thereon O. directed the 
 amount to be paid to the plaintiff, the widow : — 
 Held, that under the directions so given, as well 
 as under R. S. 0. c. 167, a. 1 1, the widow wan 
 entitled to recover the amount ; and that tlic fact 
 of O. being a member of another order did not 
 ipso facto deprive him of his rights and mem- 
 bership of defendants' order. Oates v. The 
 Supreme Court of the Independent Order of Fores- 
 ters, 4 0. R., C. 'p. D. 535. 
 
 At the trial an amendment was asked to set up 
 a forfeiture of the policy by reason of 0. hav- 
 ing gone to California without a permit, which 
 was refused by the judge : — Held, under the cir- 
 cumstances, the refusal was proper. Qurore, 
 whether the way, cause, and manner in and for 
 which 0. and the other members of Court Maple 
 left it and joined in a body another Oi-der might 
 not, if properly pleaded, have required some 
 consideration. The frame and effect of the plead- 
 ings in this case considered. lb. 
 
 Members of charitable and provident societies 
 should not be allowed to litigate their grievances 
 within the society in courts of law until they 
 have exhausted every possible means of redress 
 afforded by the internal regulations of their 
 societies. Therefore, where the plaintiff being 
 expelled from the Ancient Order of Foresters, 
 filed his bill for restitution thereto on the ground 
 of illegal expulsion, but it appeared that the 
 rules of the society provided certain internal 
 tribunals to which he might have appealed for 
 redress, but had not, this court refused to inter- 
 fere. Essery v. Court Pride of the Dominion, 2 
 0. R., Chy. D. 596, 
 
 statute 12 Geo. II. c. 28, and sentenced to pay 
 £50 sterling, the penalty thereby inijvisfid : — 
 Held, that under 27 Geo. III. c. 1,8. 2, the juris- 
 diction of justices of the peace in such cases was 
 taken away, and in lieu thereof the recovery of 
 such penalty was to be by civil action. The 
 conviction was therotoro quashed : — Semble, per 
 Wilson, C. J. , th.it the defendant could have 
 been convicted under the Municipal Act, 46 
 Vict. c. 18, 8. 49, 8ub-s. 33, against gambling, 
 and the by-law passed with reference thereto. 
 Beifmav. Matheson, 4 0. R., C. P. D. 559. 
 
 See Re<jina v. Goodman et al., 2 0. R. 468, p. 
 189 ; Goodman et al, v. Beyina, 3 0. R. 18, p. 
 189. 
 
 GAOL. 
 
 Arbitration between city and county as to 
 compensation for care and maintenance of pris- 
 oners. See In re the Arbitration between the 
 Corporation of the City of St. Catharines and the 
 Corporation of the County of Lincoln, 46 Q.B. 425. 
 
 GARNISHMENT. 
 
 See Attachment OF Debts— Division Courts. 
 
 GENERAL AVERAGE. 
 See Ship. 
 
 GENERAL SESSIONS. 
 
 See Sessions. 
 
 GAMING. 
 
 The defendant, being the proprietor of a news- 
 paper, advertised in ittliat whoever should guess 
 the number neareiit to the number of beans which 
 had been placed in a sealed glass jar in a window 
 on a public street, should receive a §20 gold piece ; 
 tiie person making the next nearest guess, a set 
 of harness ; and the person making the third 
 nearest guess, a $5 gold piece ; any person de- 
 siring to compete to buy a copy of the newspaper, 
 and to write his name and the supposed number 
 of the beans on a coupon to be cut out of the 
 paper. The defendant was convicted of a con- 
 travention of C. S. C. c. 95 :— Held, that as the 
 approximation to the number depended as much 
 upon the exercise of skill and judgment as upon 
 chance, this was not a " mode of chance" for the 
 disposing of property within the meaning of the 
 Act. Benina v. Doddit, 4 0, R., Q. B. D. 390. 
 
 Per Hagarty, C. J. The Act applies to the 
 unlawful disposal of some existing real or per- 
 sonal property. In this case there were no spe- 
 cific gold coins, nor was there any particular set 
 of harness, to bo disposed of, winch might have 
 been forfeited pursuant to sec. 3 of tlie Act, and 
 therefore the conviction was bad on that ground . 76. 
 
 The defendant was convicted by the police 
 magistrate of the city of Toronto for playing at 
 a game of cards called pharaoh, contrary to the 
 
 GIFT. 
 
 The plaintiff had performed services for one 
 P. in his life-time, and he, intending to make 
 some recognition thereof told her that a certain 
 promissory note payable to himself or bearer, 
 which lie produced, was hers, saying : " Here is 
 your note ; take it when you want it. " The 
 plaintiff told him to keep it for her, as she had no 
 place in which to keep it herself, and he did so : 
 —Held, affirming the judgment of the County 
 Court, that this constituteu a complete gift inter 
 vivos, there being a gift, and an acceptance of it 
 by the donee, and actual delivery not being 
 necessary as in the case of a donatio mortis causa: 
 — Held, also, that the plaintifif's evidence was, 
 upon the facts stated in the report, sufficiently 
 corroborated. Watson v. Bradshaw et al, 6 A. 
 R. 666. 
 
 In administration proceedings the widow of 
 the testator claimed to have received as a gift from 
 her husband a promissory note of one P. , made 
 payable to the testator, and not endorsed by him. 
 The widow, it was shewn, had had possession of 
 this, as well as of other notes belonging to the 
 estate, during her husband's lifetime. The only 
 evidence corroborating that of the widow was 
 that of P. , who stated tliat this note was spoken 
 of by the testator as belonging to his wife, that 
 he said he had given it to her, and he hoped he 
 
311 
 
 GUARANTEE AND INDEMNITY. 
 
 312 
 
 
 
 (P.) would pay it to her when he was able. Evi- 
 dence in opposition to this was also given : — Held, 
 on appeal from the master at London, that a good 
 gift inter vivos had not been established, and that 
 such note formed part of the general assets of the 
 estate, and the widow was ordered to pay the 
 costs of the appeal. Be Murray— Pimlom v. 
 Murray, 29 Chy. 443 ; reversed 9" A. R. 369. 
 
 One J. O'B., and B. O'B., his wife, were the 
 holders of a certain deposit certificate of the Bank 
 of British North America to the f ollowingpurport : 
 " Received from J. O'B. and B. O'B. the sum of 
 $>2,800, for which we are accountable to either, 
 with interest at current rate," &c. Three or four 
 days before his death, J. O'B. called his wife to 
 his bed side, and in the presence of P., gave the 
 certificate to her, saying she was to keep it for 
 her own use, and unequivocally expressing an 
 intention to make an absolute gift of the money 
 to her :— HeM, J. O'B. having died, that hia wife 
 was entitled to the money in the Bank. O'Brien 
 V. O'Brien et al., 4 O. R., Chy. D. 450. 
 
 Held, that the word "bonus" in 36 Vict. c. 48, 
 s. 3"2, sub-?. 5, Ont. does not necetsarily import 
 a gift. See Scott inh American Investment Co, v. 
 Corporation of the Village of Flora, 6 A. R. 628. 
 
 See Vinden v. Fraser, 28 Chy. r)02, p. 304 ; 
 O'Doherty v. Ontario Bank, 32 C. P. 285, p. 304. 
 
 GLENGARRY (COUNTY OF). 
 
 Dickinson's Island, on Lake St. Francis, is 
 part of the county of Glengarry, Begina v. 
 Duquette, 9 P. R. 29.— Osier. 
 
 GOODS. 
 
 L Assignment ok Mortgage of— .9* e Bill.s 
 OF Sale and Chattel Mortgages. 
 
 IL Loss in Carriage of — See Railways 
 AND Railway Companies. 
 
 in. Sale of—See Sale of Goods. 
 
 GOODWILL. 
 See yVilliarnxon v. Ewing, 27 Chy. 596, p. 127. 
 
 GROWING CROPS. 
 
 See Crops. 
 
 GUARANTEE AND INDEMNITY. 
 
 I. Operation of the Statute of Frauds, 
 312. 
 
 II. Consideration, 312. 
 
 III. CON.STRICTION OF CONTRACT. 
 
 1. What amounta to a Ouarantee, 313. 
 
 2. Extent of Liability, 313. 
 
 3. Continuing Guarantee, 314. 
 
 IV, As Between Pjiincipal and Surety— 
 See Principal and Surety. 
 
 I. Operation of the Statute of Frauds. 
 
 Where a contractor for the building of a house 
 made default in carrying on the work, and in 
 consequence, the owner, acting under a clause in 
 the contract to that effect, dismissed him, and 
 agreed verbally with a sub- conti actor, who had 
 been employed by the contractor, that if the 
 sub-contractor would go on and Rnish the work 
 he, the owner, would pay him ;— Held, that the 
 agreement with the sub-contractor was a new 
 .md independent contract, and was not a 'contract 
 to .answer for the debt, default, or miscarriage of 
 another within the fourth section of the Statute 
 of Frauds, and was therefore valid and binding 
 on the owner, although not in writing. Bond o. 
 Treahy, 37 Q. B. 360, distinguished. Petrie v. 
 Hunter et al. ; Gv .t et al. v. Hunter et al., 2 0. 
 R., Chy. D. 233. 
 
 F. being indebted to the plaintififs, who were 
 pressing him for payment, the defendant signed 
 the following document and delivered it to the 
 plaintifTs in consideration of their giving time to 
 F. : "I will guarantee that the security offered 
 by Mr, John Fleming for the balance of your 
 account will be evecuted and forwarded within 
 ten days. " The security referred to was a mort- 
 gage upon real estate to be executed, and a paid- 
 up life policy for $5,000, which F. had agreed 
 verbally to give to the plaintififs, neither of which 
 existed at the time of F.'s agreement, or the 
 defendant's guaranty. F. never gave the security, 
 and the plaintififs, ])y refraining from suing him, 
 lost their debt : — Held, affirming the judgment 
 of Burton, J. A., Hagarty, C. J. dissenting, that 
 the writing signed by the defendant was not 
 sufficient to satisfy the fourth section of the 
 Statute of Frauds, whether regarded as an origi- 
 nal promise or a guaranty. Per Hagarty, C. J. 
 The contract was divisiljle. The writing was 
 not sufficient as to the mortgage of real estate, 
 because the promise of the debtor himself was 
 not enforceable against him, not being in writing, 
 but as to the policy the writing was sufficient. 
 Lighthound et al. v Warnock, 4 0. R., Q. B. D. 
 187. 
 
 A collateral verbal promise to pay the debt 
 of another, who still remains liable, although 
 founded on a good consideration, is not binding. 
 Therefore where defendant had bought the stock 
 of one A., who was indebted to the plaintiff for 
 wages, and in order to induce the plaintiff to 
 continuo with the defendant, the defendant pro- 
 mised to see that he was paid, and the plaintiff 
 did accordingly work for the defendant : — Held, 
 reversing the judgment of the County Court, 
 that the Statute of Frauds was a bar to the 
 action. James v. Balfour, 7 A. R. 461. 
 
 II. Consideration. 
 
 The defendant, after a note payable to the 
 plaintiff, had become due and while it remained 
 unpaid, endorsed upon it the following words : 
 " 1 guarantee the i)ayment of the within note to 
 Messrs. T. D. &; Co. (the plaintiffs), on demand." 
 The evidence shewed that the consideration for 
 this guarnntee was the giving of time to one C, 
 for whose debt to the plaintiff the note was 
 given .as collateral security : - Held, that the evi- 
 dence that the giving of time to C. was the con- 
 sideration for the guarantee did not contradict 
 the latter, though it was expressed to be "on 
 
 i. 
 
513 
 
 313 
 
 GUARDIAN. 
 
 314 
 
 V. 
 
 0. 
 
 demanil ; " for those words referreil to a iloinand 
 upon tho guarantor after f(irl)eara!ie(; to press (J. ; 
 ami that sueli furhoaraiiee was a i^ood eoiisiilora- 
 tiou. J^id'icn V. Fi(H.<ttni, 45 (J. 13. 3()!). 
 
 in. CoNSTRrcTfoN 01' Contract. 
 
 1. Whitt Anioniil.i to n (Juai'nnlco. 
 
 The jilaintiff agreed with M. to repair a boiler 
 in the latter'ssaw mill. During tlie [H'oyress of 
 the work lie received the i'ollowinL; lettei' from 
 the def(,'ndant : " As Mr. Mortleii's sawmill at 
 Hiainai k is al)oiit to come into my liands ligli^ 
 away, and as I am to assume the expense of 
 repairs to the l)oiler, be good eniuigii to push 
 forward tiie work to lie done by you on the boiler 
 as fast as possible ; everytliing at present is at a 
 standstill waiting on you. I'lease imsli on tlie 
 woik and oblige yours truly, R. Taylor." The 
 plaiutitr, without eommunieatiiig witli the (lefen- 
 dant, went on with the work. Ihe defendant's 
 contemplated ])urehase was not carried out: — 
 Held, that the defendant had not rendered him- 
 self liable by the al)ovc letter for tlie pi'iee of the 
 work done, and that .a nonsuit had lieen properly 
 entered. Wliildaw v. Tay/ur, 4') <i>. B. 44(i. 
 
 D. on the suggestion of U. and tho bank of O. 
 that he siiould purchase eert.iin lumber iieid ))y 
 the baidv as security for advances made to l{. 
 veijuireil a guarantee fi'()in the bank that the 
 lumber should lie satisfactori' culled, and any 
 deiicienoy [laid for l)y the banw. The direetons 
 of the bank thereupon resolved to subnn't the 
 lumber to a culler, and if he reported s:itisfacto- 
 rily, to give the guarantee. I'lie local agent, 
 however, witii the a|)prol)ati<>n of their bead 
 manager, witliout |)revionsly employing a culler 
 to report, gave a guarantee in writing, lint not 
 under seal, " on liehalf of the hanlv,"' tliat the 
 lumber siionhl ))e satisfactorily eulleil, previous- 
 ly to shipment : — Held, that tht; bank was liable 
 on the guarantee for any deliciency residting 
 from unsatisfactory culling, for the plaintill's 
 weie warranted in assuming that the agent giving 
 it had the necessary authoi'ity, a' d no seal was 
 reipiired ; and if the l)ank wished to reinidiate 
 it, they should repay the money paiil to them 
 by I), for the lunilier : — >leld, also that the altove 
 guarantee diil not come witliiu the <lescription 
 of a guarantee for tiu^ act of a thiril party, for 
 the bank wcue selling under U. S. (). e. i'21, i)y 
 virtue of heing holders of a warehouse receipt 
 for the Inmlici-. IJoh.ll i-f dl. v. Tia- Oiihirii) 
 Bank rt a/., li (). it., Chy. D. -Ji)!). Ueversedon 
 appeal. See 20 C. L. J. 144. 
 
 to pay the second note, whereupon defendarit 
 paid the plaintill's .':?47(!, being the halance of the 
 sum of '[fj'il guaranteed by defendant. '2. That 
 the first two notes to the amo\int of .*'l,l'7<), were 
 paid to plaintilfs as they became due, whereby 
 defendant's guarantee was satisfied : -Held, on 
 demurrer, picas bad ; for, as to the lirst, defen- 
 dant was not liable to the plaintill's' endorsees, 
 an<l no express or implied re([uest by the plain- 
 till's to pay was shewn : and as to the second the 
 guai'antee was not satislied by the payment of (J. 
 of .S75I. Cnilhi'rii. it at v. Hdl, 4o (,>. B. 473, 
 
 The defendant, in order to enable one (i. to 
 carry out a contemplated settlement with the 
 plaintill's (creditors of (!.) signed a memoran- 
 dum guaranteeing the payment by ( !. of the lirst 
 two of three (jromissory notes of i^l'iX each, " to 
 the extent of .'?7jI." When the lirst note to 
 mature fell due G. was nnable to meet it, and 
 the defendant, without the knowledge of tho 
 plaintill's or their agents, enabled (1. to raise a 
 part of ti'.; amount required to retire that note, 
 which am (unt (). so ai)plied ; and this sum the 
 defendar.t subsciiuently was compelhMl to [lay : — 
 Held, (allirming the judgment of the (Jourt below, 
 4(i (i>. J3. .SI).'),) no answer to a claim .afterwards 
 made upon the defendar.t to pay the second 
 note on (l.'s failing to do so, the advance which 
 had been so made by the ilefendant to '". form- 
 ing no part of the sum the defendant; was liable 
 for under his guarantee. .S'. C, 8 A. II. 537. 
 
 2. Knfi'iif of Liahili/i/. 
 
 Declaration on a guarantee, by which in consid- 
 eration of tho plaintilfsaecepting tiu'ee notes of ( !. j 
 for!?751 each, in satisfiction of thcii'cl lini against I 
 G. & Co., defendant did, " to the cxlcnt of S751, \ 
 guarantee the payment of tlu: lirst two of the ' 
 said notes accoi'ding to their tenor and ell'cot. " ' 
 Picas, 1. That the notes were jiayable to plain- ' 
 fill's' order, niu'i the plaintill's eiulorseil the lirst 
 note to certain persons who held it at ni.iturity, 
 and to whom in the event of C not paying it, 
 the jilaintills were liable as endorsers : that (r. 
 notified defendant of his inability to pay it in 
 full, and defendant paid thereon !^'21i), of which 
 plaiutitis hail notice, and afterwards G. failed 
 
 3. Cunlhuthi'i (timrnnter:. 
 
 On nth .June, 1877, ilefendant wrote to the 
 plaintill'that.). .S.,the [icrson he wished to assist, 
 " informs me now that I could hel|) him by pledg- 
 ing myself to you that you might give him a let- 
 ter of credit in Montreal, and I now say, if you 
 will assist him in that way to .■:$7000or .:!SO00 that 
 1 will become rcs[)oLisible to you for the like 
 amount in any manner you may wish ifcc.'' J. S. 
 then applied to the plaintilf, who g.ave a continu- 
 ing guarantee in his favour to some Montreal 
 merchants, dated I'Sth August, for goods to the 
 lixtcnt of .^joOO, h)r three years. At the same 
 time the following note signed by the |defend,int 
 in blank was filled up by J. S. : " Three years 
 afti'r date 1 promise to pay to the order of J. S. 
 .■r^oODO &.C. " "Value received" To which was 
 added. " This note is given as collateral security 
 for a guarantee of .S,")00i) given to. J. S. by A. S.," 
 the plaintilf. Xo notice was ever given to ile- 
 fendant of the plaintiH"sg\i,arantee, or of the form 
 in which the note w.is filled in. In an aetion on 
 the defendant' letter as a continuing guarantee, — 
 and on the note. L'er Wilson, C. .). — The letter 
 was a guar.mtoe, but in)l a continuing one, and 
 there could be no recovery umler it as tho evi- 
 dence shewed that the amount of .'J>'')000 .secured 
 thereby had been ])aid. l'er Gait, •]., agreeing 
 with the judgment of linrton, .J. A., at the trial, 
 it was not a guarantee, hut merely a proposition 
 leading up to a guarantee ; at all events if a guar- 
 antee it was not a continuing one. Sath-vlaiiil v. 
 I'atlersuii, 4 0. il., C. I'. 1>. 5tj5. 
 
 GUAUDIAX. 
 1. Of Inf.wt— .SVv Infant. 
 II. Of Ll-natic — SVc Lunatic. 
 
 
 'on 
 
:5i.-) 
 
 HOTCHPOT. 
 
 316 
 
 31 
 
 
 n r*^i 
 
 iiakv;as coiu'us. 
 
 TliL' jirismu'i' was convicted liofnre a County 
 Jiiilgc's Ciiniiiiu! fdiirt. Cn an application for a 
 ha)>cas jdi'pus : Ilcld, that tin; court was a court 
 (if l{ecoril, anil that under 1!. S. (). c. 70 s. 1, 
 there was therefore no riylit to the writ. Jh-ijiiia 
 V. SI. JJiiii-1, 8 1'. I!. IG. — Caiuerou. 
 
 The Act 20 30 Vict. c. 45 apparently substi- 
 tut('d the right of ajipeal in habeas corpus cases 
 for successive applications from court to court. 
 /// /•. Hall, S A. It. 13.->. 
 
 Writ iniprovidently issued. See In r<- J/alf, 32 
 C. P. 398 ; Jieijiim v. UumIiimil <I «/. 2 (), 15. 4G8. 
 
 HAltliOUK. 
 
 Sie Coiiornc; HAKiiofi;. 
 
 Tlic soil and bed of the foreshore in public har- 
 bours is vested in the Dominion riovcrnment. 
 See llolnmii v. Gran, G S. C. 1!. 707 p. 124. 
 
 HARD LABOUR. 
 
 .V((- iMriilSO.NMK.Vr. 
 
 HEALTH. 
 
 .iiVt I'l liLic: Hj'.ai.tii. 
 
 HIGH COURT <»F JUSTICE. 
 
 L DivrsioNAi, Corr.T - .SVe Divisional 
 
 CoiRT. 
 
 IL Transfkrhini! Caises from oxk Divi- 
 sion OF Hioii Court TO Another — 
 .bVt Practu'e. 
 
 A petition against the return of a member for 
 the House of Commons, was filed in the High 
 Court tif Justice, Connnon I'leas ]>ivision, con- 
 stituted by the (>. J. Act ; and the rc(iuired se- 
 curity ^ as furnished by the deposit thereon being 
 made ill a bank imdera direction obtained there- 
 for from the accountant of the said High Court, 
 appointed under the said Act ; — Held, by Cam- 
 eron, J . , that the Common Pleas Division of the 
 said High Court was not one and the same court 
 as tie Court of Common Pleas as constituted 
 prior to the passing of the Judicature Act ; that 
 the said Court of Connnon Pleas still existed, 
 and was capable of receiving and trying the said 
 petitions, and therefore, the said Common Pleas 
 Division had no jurisdiction to entertain the 
 same. Be North York Election Case — Patergon 
 V. Mulocl; 32 C. P. 458, followed in hi re Wvi^t 
 Huron Election — Mitchell v. Cameron, 1 0. R. 
 433. These cases were overruled by the Supreme 
 Court. 
 
 The Court of Queen's Bench is an existing 
 court for the presentation and trial of Dominion 
 Controverted Election Cases, notwithstanding 
 the O. J. Act, 188L In re Russell Election — 
 Henderson v. Dickinson, 1 0. R., Q. B. D. 439. 
 
 Tlie petition in this case was intitule<I " Tn the 
 Queen's liencli, Higii (Viurt of Justice, Queen's 
 Bench Division," and was delivered without any 
 special instructions to an othcerin theolHciMif tlio 
 Queen's Ijciich Division, with whom, and in 
 which, the business of the Court of Queen's Ik'uch 
 had formerly licen transacted, ;;Md the ollicer en- 
 tered it in the pi'ocediire Jiook of tlie (^tuecn's 
 Bench Division : - Meld, that the words ' High 
 (,'ourtof .lustico (jhu'cn's liench Division " added 
 in intituling the petition niigiit be rejected aa 
 surplusiige and that the petition had been pro- 
 perly presented in tlie (^Jueen's Bench, lb. 
 
 Quicre per Armour, J. liaving regard to the 
 provisions of the Judicature Act, whetlier the re- 
 servation if a case under C. S. IJ. C., c. 112, to 
 tlie Justices of tlie (^'uccn's Bench Division of tlio 
 High (,'ourt of Justice was autliorized. Iteijina 
 
 V. y;;,v>(//, i o. r., q. p.. d. 514. 
 
 Per Patterson, J. A. — By the efTect of the 
 Judicature Act a dec' Ion of any one division is 
 a decision of the Hi Court. Jn re. J lull, 8 A. 
 R. 135. 
 
 Per Armour, J. This court has power to 
 quash a conviction for iin illegal adjudication of 
 punishment, although it has been ajipealed 
 against and allinned in respect of such adjudica- 
 tion, and ,32-33 Vict. c. 31 s. 71 does not take 
 away the cci iiorari in such a case. AIcLellan v. 
 Mckiunou, 1 O. R., Q. B. D. 219. 
 
 Held, affirming the judgment of Armour, J., 
 that where a garnishee does not file a notice dis- 
 puting the jurisdiction of a Division Court with- 
 in tlie time recjuired by 43 Vict. e. 8, = 14, ()., 
 though no olijection can be taken to this j iris- 
 diction of the Division Court in that Court, the 
 jurisdiction of the High Court of Justice to pro- 
 hibit the proceedings is not ousted. Clarke v. 
 Macdonahl — Flalt and Bradley, Garnisheen, 4 0. 
 R.,Q. B. D. 310. 
 
 HIGH SCHOOLS. 
 
 »S'cc Public Schools. 
 
 HIGHWAY. 
 See Way. 
 
 HIRLVG. 
 
 I. Of Emplovees— ,%'« Master and Ser- 
 vant. 
 
 II. Of Convevance.s oh Rooms at Elec- 
 tions — See Parliament. 
 
 HOMESTEADS ACT. 
 See Free CJrant.s and Homesteads Act. 
 
 HOTCHPOT. 
 
 A secured creditor need not bring his security 
 into hotchpot as a condition precedent to ranking 
 
 on 
 ex| 
 
 s. ; 
 
 D. 
 
 141 
 
316 
 
 317 
 
 IT ITS BAND AND \V!KR 
 
 318 
 
 on tho cst.itc (if a (lucoixspd iioi-^dii, his licnli-ing 
 ex]prossly iire-icivoil l)y tho A<:t, II. S. (). c. 107, 
 s. .SO. I'liiiiiihcrlfny.' (Vitrk vt (li, M). I{., Cliy. 
 
 HURON COT.LEOE. 
 
 Sec Marsh v. Huron Collt'ijc, '2~ Cliy. G05, p. 
 14(1. 
 
 HUSIUXD A\U WIFR | 
 
 I. Action koii Urracif ok PKoMi-iK oK^fvp.- ' 
 HIAliK, 318. 
 
 11. MAiii!iA(ii:, 318. 
 
 III. MaHHIAOK SETTr.F,:\rF.NTS. 
 
 1. AiifrXiip/ial, :\\'.). 
 
 '2. Fniinhilcnl — Scr Fn \ui)ri.f:N"r Cox- 
 
 VKYAN'CKS. 
 
 IV. HrsilANI) AND Wri'T, TAKIN'(i IjyEN'TIRE- 
 
 Tli;s — SV'C IvsTATK. 
 
 V. WlKl'.'s PuoPKliTV, Hidlll'.S AND LlABI- 
 MTir.S. 
 
 1. Scpnnifp. Exfritc, 3-?ft. 
 
 2. Coni'i'iianait ajfirtinj ll'V/e'.i Ihal 
 
 li-itahi, 321. ■ 
 
 3. Lhdiinty oil ('otilr<:ft>; 321. 
 
 4. Scjiiirale TraiUn'j, 323. 
 
 VI. DkAMVOS IlKTWRKN HuSUAXl) AN'D WiFE. 
 
 1. (I'enerdl/i/, 325. 
 
 2. Oiff 1)1/ llii'<hanil to mrc.—Srn GrrT. 
 
 V[I. PlltViLKUK OF WiFK FIIOM AURKSi', 326. 
 
 Vni. AoTinNs AVD .'^urr.-i nv avd ahatn'st. 
 
 1. U'i/'r tfiihiij III/ ycj-t. Friend, 320. 
 
 2. Partiix to Sii;/.t. 
 
 (a) Gitncrnllji — Sw Pleai)I.v«. 
 (1)) InJKurtitinSi'c iN.TrxrnoN'. 
 
 (c) Foreclosure —Sec Moiitgahe. 
 
 (d) S/iecifie Performance — See. 8rE 
 
 CIFICJ 1'ekfokjiance. 
 
 3. Other Canes, 326. 
 
 IX. Deed of ,SEPAK.i.Tiox, .327. 
 X. FnnEiON DivourE, 327. 
 XI. Quarantine, .328. 
 XII. DowEK— .S'w Dower. 
 
 XIII. Tenancy by Curtesy — Sec Estate. 
 
 XIV. ALi.MONy, 
 
 1. Writ of Arrest, ^2S. 
 
 2. Writ o/m Exeat, 328. 
 
 3. Particulars, 328. 
 
 4. When Granted. 
 
 (a) Desertion, 328. 
 
 (b) Interim Alimony, 329. 
 
 (c) Costs, 329. 
 
 5. Application to reduce Atnutnt of, 321). 
 (). (Hhrr Caies 330. 
 XV. MisciiM.VN'not'H (^vsF.s, 3,30. 
 
 I. Action for Breach op Promise of Mar- 
 
 HIAfiE. 
 
 In .an action for bivaoli of jiroiniso of inirriagc 
 it was jii'ovcd til it tli(! ildftMi'l int, on ht'iiig 
 charged by tho ])laintiH".s fathor with iriving got 
 hor in tlio !'aniily way, and iiaving piMiniso(l to 
 marry lior— tin; plaintilF Iiaving boon ,-ii^ hiood, 
 and had a oliild liy him — roplioil : " I will in irry 
 hor if it is iiiino, " and also that ho ooiil I not do 
 anything until ho got soino land from his fathor, 
 whon ho would marry hor. ft fiirclior ajipjarod 
 that tho dofondant had a<lmitt(Ml somo time pre- 
 viously Iiaving got Hfty aoros from his fathor. 
 I'hiu'c was no proof of an actual promisi' on tho 
 pi liutiir's part, but on tho cross-(;\-amin ition of 
 the iiliintiir's father ho sta1,H<l that boforo spoak- 
 ii'.g to tlio defendant about marrying his daughter 
 she li id told him she was going to got married 
 to the dofondant: — Hold, (rilt, .!., doubting, 
 that there! was sutti Moiit evideneo of ,a mutual 
 promise to marry to go to tho jury, and .a verdict 
 for the plaintiir was n])liold. In the lirst count 
 of the declaration the promise allegi'd was to 
 marry within a reasonable time ; an 1 in the 
 second count on a day now p.ast ; — IToM, both 
 counts sustainable on the ovidenco, but i^^iiiccially 
 the second. Fisher v. (h:'ham, 31 C. P. 28G. 
 
 Since 33 Viet. c. 13, Out., neither of the parties 
 to an action for broach of promise of marriage 
 can be called as a witness by tho opi)osite party. 
 Piscovery by moars of oral examinitiou under 
 R. S. O. 0. .W, s. l.")(), ot s(!i[., substituted for the 
 old i)r.ictice of administering interrogatories, 
 must be limited to those cases in which the 
 party to be examined is comjiellablo to give evi- 
 dence by or on beh.alf of the ("pposite party, and 
 hence does not apply to actions of this nature. 
 See 4,-) Vict. c. 10, Out. Jones v. Gallon, 9 P. II. 
 29(>.— Osier. 
 
 As to examination of parties under R. S. O. c. 
 50, s. 156. See Woodinn.u v. Blair, 8 P. II. 179. 
 
 A discharge in insolvency is a bar to a judg- 
 ment in an action for breach of promise of 
 marriage. See Forrester v. Thrasher, 9 P. R. 
 383 ; 2 0. R. 38, p. 65. 
 
 • II. Marrtace. 
 
 In order to render void a ceremony of mar- 
 riage, otherwise valid, on the grouml that the 
 man was intoxicated, it must be shown that there 
 was such a state of intoxication as to deprive 
 him of all sense and volition, and to render him 
 incapable of knowing what he was about. Iloh- 
 lin V. Rohlin, 28 Chy. 439. 
 
 SeniLle :— A combination amongst persona, 
 friendly to a woman, to induce a man to consent 
 to marry her, it not being shewn th.at she had 
 done anything to procure her friends to do any 
 improper act in order to bring about tho cousent, 
 would not avoid the marriage. lb. 
 
 A marriage entered into while tho man is so 
 intoxicated as to be incapable of understanding 
 what he is about is voidable only aud may be 
 ratified aud ooufirmed. lb. 
 
319 
 
 HUSBAND AND WIFK 
 
 32(' 
 
 r- 
 
 I. r»"r 
 
 'I'liix'o years after tlio ccri'inoiiy of inavri:i<;t', 
 wliicli tlic iiiMii m1I(l,'i'iI lie liail been iiiiliued to 
 eiit(!r into \\liile iiinh'r arrest unit iiitoxieated, an 
 action at law va« liroui^lit a^'aiiist hint foiiiiees- 
 saiii .1 fni'iii.'-l ((1 to the woman, ami for exjiense.-i 
 inenrred in tlie Imrial of her child, in which the 
 validity of the inarriajxe was distinctly jmt in 
 iysuo. I'lcfort the cause was called on for trial, 
 the man si;.'ned a memorandum endoised on tlu; 
 record in which he admitted the existence and 
 validity of the marriaj;e, and consented to a ver- 
 dict for thi' jilaintill in the action: Held, tiiat 
 if the marriage was jireviuusly voidable, it was 
 thereby conlirmed. lb. 
 
 111. ,MAl!l:rA(lK SinTLK.MKNT.S. 
 
 1. Ante Nnjit'ad. 
 
 Tlio absence of a jiower of revocation from a 
 voliintaiy s( ttleuiint is not a j;round lur .settinj^ 
 it aside, 'i'he |ilaintiir, who had just come of 
 ji"e, beiiij; aliout to marry, aji)plie(l to her solici- 
 tor, who was also her guardian, for advice as to 
 her propeity, and had several consultations witli 
 him, at w hicli the heads of a marriage settlemeuL 
 were agreed U|)on. The solicitor did not know 
 the husl)and, and acted solely in the interests of 
 the phiiiititr. >.dthing was saiil aliout a power 
 of revocation in the settlement, w hich contained 
 the usual clauses, but gave rather more powei' 
 than usual to the plaintili', and was made in e(Ui- 
 sideralion ol marriage :— Held, that it was not a 
 voluntary settlement, and that, as it 'ontained 
 the usual clauses in such deeds, and simply 
 omitted a power of revocation which is not usual 
 in settlements for value, there was no evidence of 
 improvidence, (U' grouiul for setting it aside, in 
 the absence of fraud or mistake. U'iUdvI: v, UtU- 
 ton, 29 (.'hy. 41)0. 
 
 The plaintiir, in IS.'ii, being about to marry, 
 conveyed certain lands to trus ees — one of whom 
 was her intended husband— upon trust to sutler 
 her to receive the rents, &c., to her own use 
 during her natural lile, and upon her death, if 
 she sluuihl leave a child or children surviving 
 her, in trust to convey the lands, &e., unto sucii 
 child or children, their heirs, &e., for ever, freed i 
 and discharged of the trust mentioned in the ' 
 deed ; and in case of her death, before her hus- I 
 band, w ithout any child, in trust to permit him j 
 to receive the rents, &c., for life, and after his' 
 death, or in ease he should die before the plain- \ 
 till, she leaving no child, then in trust to convey ! 
 the said lan<ls to her right heirs, freed and <lis- ' 
 charged from the trusts thereof. The deeil gave 
 the trustees j)ower to sell or lease, and also to 
 borrow on the security of the lands. The hus- ; 
 band died in 1S7!', theie never having been any 
 child of the marriage, and the plaintitf, who was 
 then titty-three years old, requested the trustees 
 to reconvey the trust estate to her, which they 
 declined to ilo w ithout the sanction of the court, 
 us the tiust for children was not conlined to the 
 issue of the then contemiilated marriage, but w as 
 wide enough to include the ch Idren ot any other 
 marriage, but : — Held, us there were no child- 
 ren, and it must be assunied that the plaintilT 
 never could have any chiklren, she was entitled, 
 as equitalile tenant in fee simple, to call uijon 
 the trustees for a conveyance ; the costs of the j 
 trustees to come out of the estate. Fari'ell v. | 
 Cameruii, 2d Cliy. 313. | 
 
 V. WiKK's 1'HOI'KUTV, IlKillTS and LrAIill-ITIlS. 
 
 [See 47 Vict. c. lO.J 
 
 1. Si'iiaratr EsUili>. 
 
 'J"he ]ilaintill and her husband were niarrieii 
 licfore l,S.')!t. In ISTO he, being free from debt. 
 l)urchased land and had it conveyed to his wife, 
 the plaintitl' ; who with the rents and protits 
 thereof, she an<l her husband r.ot living on the 
 land, with money raised by mortgage thereof, 
 and with money boiro«cd Ironi hei' sons, pur- 
 chased the ciiatti Is in ijUestion lu^rcin, which 
 were seized under ixccution against tlie husband : 
 — Meld, tiiat the chittels were her sejiarate pro- 
 perty witliin the meaning of I!. S. (). e. I'J."), s. 
 l,and frc'j fi'oin the debts of her husband. Trut- 
 l<r\. <JI„iii,hi,:<it <il., 2(). It., (,>. U. I). 515. 
 
 Held (reversing the judgment of the County 
 t'(jurt of Y'oik), that the rents derived by a feme 
 covert, marriiMJ liefore IS.")'.), from real estate ac- 
 (piircd by her in I8(i,"), were her separate estate. 
 lluriiir V. Kerr il a/., ti A. 1!. liO. 
 
 The plaintill', a wiilow, had, during her cover- 
 ture, lent the defendants a sum of money which 
 she earned when living a])art from her husband, 
 who had never made any claim to this money, 
 or to any of her earnings: — Held, aliirniing the 
 judgment of the County ('ourt, that the plain- 
 till' wasentitleil to recover, as the evidence shew- 
 ed that tile husband had aci]uiesced in her treat- 
 ing her earnings as her scfKirate property ; and 
 tiuit C. S. U. (.'. c. ~',i, wliicii was in torce when 
 the money w;is lent, in no way abridged the 
 power of the husband to make such a settlement 
 by his acts of ac(|uicseiiee as well as by a foruiid 
 writing or distinct wiu-ds. Varroll v. Filj/eralil. 
 C, A. It. <)3. 
 
 The plaintiir, who had been married in 18G4, 
 cultivated land living upon it with her husband 
 and working it under his advice, one-half of 
 which had in 1874 been devisinl to her by the 
 father of her husband, the other half hiiving 
 been ill like manner devised to her son. In an 
 iliteri)leader action bi-ought by her against ;in 
 execution creilitorof hei' iiusliaiid held, atlirniing 
 the judgment of the court below, 4(> <,>. B. 5'i, 
 that the plaintitl' was entitled to the crops on the 
 whole f;iini as against tiie execution creditor. 
 Jiiijraiii V. Toiflor, 7 A. It. ^l\^\. 
 
 In January, ISufi, R. McC. sold certain real 
 estate to J. McC., his sister, by notarial deed, in 
 which she assumed the qualitiiis of a wife duly 
 sepaivitcd as to projierty of her husband, J.G.A. 
 After the hitter's death, in IS()(), J. McC, be- 
 fore a notary, leiiounced to the eonimunaute do 
 bieiis which subsisted between her and her late 
 husband. !•',. C. K., ;i judgment creditor of It. 
 McC, seized the said real estate as belonging to 
 the vacant estate of the said It. Mct.l., deceased. 
 J. McC. opposed the sale on the ground that the 
 seizure was made sujier non domino et possideute, 
 and setting up title and possessicm. She ])roved 
 some acts of possession, and that the property 
 had stood for some time in the books of the mu- 
 nicipality in her name. I'J. C!. K. contested this 
 opjiosition on the ground that .] . McC.'s title was 
 bad in hiw, and simulated and fraudulent, and 
 that there was no possession : — Held, that by 
 her renunciation to the coinmunaiite de biens, 
 which subsisted between her and her late hus- 
 band at the date of the deed of January, I85(j, 
 
 of 
 
321 
 
 HUSBAND AND WIFE 
 
 3: 
 
 ulitor. 
 
 J. McC. divested herBolf of iiiiy title or iiitiTu.st 
 in said iaiids, imd coidd not now claim the legal 
 possession of the lands under tlmt deeil or liy 
 prtscriiitioii, or maintain an oiiposition hecaiise 
 the seizure was super non doniino et non possi- 
 dente. MrCod-ill v. Krnijht, 3 S. C. K. '1X\. 
 
 See //( re W'idiiicyfr v. McMahon et al., 32 (X 
 P. 187, p. 3-'(i ; Miirrny v. MiCdIliiiii, 8 A. H. 
 277, p. ;VJ.") ; (I'rijliii v. Pattvrsini ti iij\, 4") <). [i. 
 53(i, p. ;?2'2 J O'JJuliirly v. The Ontario JiniiL; 32 
 C. P. -'85, p. 304 J Sivewrii/ht v. Leys, 28 thy. 
 408. 
 
 2. Cuiweyaneen ajl'ectimj Wije's Uml EMuIp. | 
 
 Where a deed in a chain of title had l)een made 
 to a husliand and wife ns joint tenants :— Held, 
 following Shaver r. Hart, 31 Q. H. (!03, tiiat not- 
 withstanding the terms of the deed the husliand 
 and w ife took by entireties. And when the hus- 
 band made a conveyance of the same land in the 
 lifetime ot his wife, she merely joining to bar her 
 dower, and she predeceased her laisband : — Held, 
 that the husbaiul's deed conveyed the fee. Iti'. 
 J/orw, 8 P. 1!. 475.— Blake. 
 
 A , a married woman, owning the whole lot, 
 in 1834 by deed jointly wi+h her husband, pur- 
 ported to convey the east half to F. in fee simple. 
 The ciinveyance was void in not having the pro- 
 per magistrate's certilicate endorsed thereon. F. 
 never ti'ok po.ssession, but in 18;')2 conviyed to 
 H., through wluim the plaintifl' claimed. Shortly 
 after the conveyance to F., he told A. that he 
 would not live on the land or have anything to 
 do with it. A. then jirocnred .S(jme taie to look 
 after it for her, and about sixteen years before 
 this action two sons of A. settled upon the west 
 half ot tlie lot ujion the underst;inding that they 
 were to have the whole land, each paying her 
 ?50 on account ; but no deed was executed to 
 them till 1875. 'I'liey paid taxes on the whole 
 lot, and cut timber at times upon the cast half. 
 In 1871 K., having obtained a conveyance of the 
 east half, had a line run between the east and 
 west halves and cut timber on the east half. An 
 action fif trespass was brought against him by 
 A.'s sons, which he settled. The east lialf was 
 neither ckare<l, fenced, nor cultivated :— Held, 
 Cameron, J,, dissenting, that those claiming 
 under A. in 1873, when 30 Vict. c. 18, was 
 passed, were not in " actual possession or enjoy- 
 ment " of the cast half contrary to the terms of 
 the conveyance, w ithin the meaning of the pro- 
 viso at the end of see. 13 of that Act, and 
 therefore that A.'s conveyance to F., void in its 
 inception, was validated by sec. 12 of the Act 
 (R. S. 0. c. 128, s. 13), and the plaintifls were 
 entitled to recover. Per Cameron, J., the pos- 
 session ot A. and those claiming under her must 
 be construed with reference to her paper title to 
 the land, wiieh remained in her, as her deed to 
 F. was void, and it must therefore be held to 
 have extended to the whole lot and not only to 
 those paits actually occupied as in the case of a 
 trespasser, ami therefore the case fell within the 
 exception in the Act, and the deed was not vali- 
 dated thereby. Elliott v. Brown et al, 2 0. R., 
 Q. B. D. 352. 
 
 3. Liability on Contracts. 
 Action against husband and wife for the price 
 of goods supplied in 1877 by plaintiff to the 
 21 
 
 fi'Uiale defendant, wlio was ujarried in lS5fi with- 
 out a nianiagc settlement, and wiio lived witli 
 her husliand iind laiiiily. The husliainl and wife 
 were devisees in fee of land under a cleviso to 
 tlu'ni in 18()(i, and tiie sheritV had, in KS74, all'eet- 
 ed to St 11 to tlie wile the hunliand's interest iit 
 the land under an exeeut'on au'aiust the hu.sband: 
 — Held, that the wife's interest in the laud was 
 not such as to entitle the plaintill' to a remedy 
 against it;- Held, also, Armour, •!., clisscnting, 
 tiiat she was Uiit liable to tlie plaiiitilf for the 
 guilds sold : -Per Ilagarty, C. J. — The fact of a 
 woman (living with I'.r husband and fmuily) or- 
 dering liou.seliiild gciiids does iml raise an implied 
 jiers<inal promise to pay or bind her separate es- 
 tate, or any otiier pi'esumption than that she is 
 acting as her husband's agent ; and the interest 
 of the husband, being inalienable, was not sale- 
 able under (;.\eeution under It. S. t>. c. (!(>, s. 30. 
 Per Armoui', .J. — (I) Tliat whatever iniglit be the 
 eliect of the slierifl "s .sale, it sliould lie treated ac- 
 cording to the etleet ascribed to it liy the plain- 
 till s and female delendant's conduct, viz., as 
 having vested the estate in her. (2) That from 
 the evidence it was the fair inference that the 
 claim was the separate debt of the wile, part of 
 it having been incurred l)y her in resjiect of the 
 business of fainiing, in which she appealed to be 
 engaged on her own account ; that s-lic liad con- 
 tracted in icspeet of separate personal i state ap- 
 pealing to be hel>, and that the hiisbamrs name 
 bhould be sli uek out, and a verdiet entered for 
 the amount against her. Per Aimoui, J.~ Quiere, 
 whether the eliect of the Married Udmen'sActs 
 may not be to do away w ith the estate by entire- 
 ties, and make husband and wife, when devisees, 
 tenants in common. O'rijjiii v. Patlir.son it u.r.. 
 45 Q. B. oM. 
 
 In an action on a promissory note made by the 
 j defendant (i., a feme covert, married after 2nd 
 , March, 1872, without a settlement, and C, her 
 brother, as trustees under their father's will, for 
 the puriiose of raising money to pay certain in- 
 surances on the trust estate, it appeared that 
 the testator had devised his real estate to his 
 trustees in trust to sell as one 1'. should deem 
 ' expedient, and out of the proceeds to pay debts 
 and invest the residue, and to expend the income 
 in the maintenance of the trustee and his other 
 children until the youngest should attain the age 
 of twenty-one, and then equallj todiviile amongst 
 all the childien, the issue of deceased children to 
 represent their paient: — Held, that until the 
 youngest came of age, C. had no separate estate 
 available in execution, and that she wafc notlialde 
 on the note ; Armour, J., dissenting, and holding 
 that the true construction of the Mariied Wo- 
 men's I'roperty Act is impliedly to enable a feme 
 ' covert to incur debts, to make engagements, and 
 : to enter into contracts as if she were a feme sole 
 and that the remedy in respect of any such debts, 
 &c. , should be against her personally, and should 
 not depend upon tlie fact of her ever having had 
 separate estate or not. Clarke v. CreiylUon et al,, 
 i 45 Q. B. 514. 
 
 j The rule of the courts is, that it will not restrain 
 j a married woman from dealing with her separate 
 estate pending suit ; but, if she die seized 
 thereof, the court will administer her estate for 
 the satisfaction of her debts : — Held, therefore, 
 that the estate of a married woman, deceased, 
 in the hands of her infant heir^i, was liable to the 
 
:'>2^ 
 
 HUSBAND AND \V[FE. 
 
 :V2l 
 
 "ttt 
 
 
 |i;iyiiicli1 cif ,'i iiiitf (111 wliii'll slic VMS I'luliil-St'l' MS 
 snnlv l'(ii' liiT )iusl);iii(l. ^fl rrli'i/il-' llnnk v. lU II, 
 •J'lChy. IK!. 
 
 Till' imlnrscr, a Dinnicil vfiiiinii, ilifil iiitcs- 
 tiiti' cliiriii;,' tlic I'lirrciic'v of tlii' note, and iiotici^ 
 of pinti'st WAX Hciit to " i)aincM licll. cvciutor of 
 tlif last, will iuwl ti'stainciit of M.A. Bell, I'ci-tli,'" 
 jiiicl I'tTi'ivi'il Ipy tlic Imsliaiid, who resided with 
 hJH eliildrell ill tlie iioiise wliieh his dereased wif(^ 
 had oi'eiipied. No letters of adiiiiliistratioii hiid 
 lieeil ,L,'raiited : — Hehi, that the, notiee was sulii- 
 eient, and the interest of tint hiishand as tenant 
 hy the curtesy was dii'ected to \)f e\haiiste(| hc- 
 for<' lesoitiiiL,' to the estate of tiie eliililren in ro- 
 niaiiider. The costs of the infant ilefen.iants 
 were to he ii<lded to the plaintitl's claim, and 
 paid out of the estate if not reali/.i'd a^'ainst the 
 hu.shiuid. //(. 
 
 Helil, |U!r Hnrtoii, .1., <at the trial, th.at tlio 
 defciid.int Citharinc, who joined in the note 
 witli lier hiisliind, the otiier defeiidaiit, was not, 
 under the facts stited, [possessed of soparatc 
 e.st■^tl^ and was theri;fori) not liahlc, iiotwitii- 
 staiidiiii,' iii'r ailini.ssion emlorscd on the note th.it 
 the iiayee ii id advaiicod the money on tlie faith 
 of such .sepiirato estate, licll v. li'iihli'll <•/ it.c, 2 
 O. I!., Q. n. I). 25. 
 
 Tn in notion atjainst a inirrii'd woman, mar- 
 ried in IS7I, on a proiui.^sory note made hy lior, 
 the only property she was proved to hivo was ii 
 right to ilower in eertiin land owned hy a for- 
 mer hiishaild. Jiel^meiit w.is entered for the 
 ]il lintiir for the amount of his claim, witha'direo- 
 tioii for the recovery of nunc out of the separate 
 proiierty then and at the d;itu of tlie nuking of 
 the n'lte vested in defeud.uit, or in any pjrsoii in 
 trust for lier, with which amount such sep ir.ite 
 estate w,is chirgod. Wallace v. HiitrhUon, 3 O. 
 R.,G. P. D. 398. 
 
 Qiia're, pur Burton, J. A., whether a married 
 worn 111 can he liahle on a joint contract. Horner 
 V. Kerr et ul., 6 A. R. 30. 
 
 Sec also next Sub-licad. 
 
 4. Separate Trading. 
 
 H(dil, that debts contracted 1ij' a married 
 woman in carrying on a business or employment, 
 oociipatiou or traile, on her own behalf, or 
 separately from her husband, may be sued for 
 as if she were an unmarriun woman ; that is, 
 without regard to separate estate such as Courts 
 of Kquity recognize as that particular class of 
 property. Where therefore, to a declaration on 
 a promissory note made by a married woman 
 she pleaded coverture, and the plaintiffs replied 
 that the note was made in respect of a business 
 in which defendant was employed on her own 
 behalf separate from her husband, but did not 
 allege that she had separate propertv : — Held, 
 that the replication was good, lierni et al. v. 
 ZeisH et al, 32 C. P. 231. 
 
 The plaintiff, a married woman, was married 
 in Cincinnati, Ohio in October, 1878, without 
 any marriage settlement, and not possessed of 
 any separate estate except about 8200. Her 
 husband carried on business there until Decem- 
 ber, 1878, when he failed, and an assignee was 
 appointed. The plaintiff claimed that she then 
 
 (iiindiased the stock from the assignee, and 
 '■an ied on a Imsiness, similar to that iMrried on 
 hy her husband, on her own behalf ami separately 
 Iroiii him. Snhsei|neiitly she removed to llainil- 
 toii, wliere her hu.sliiiiil had previously gone, 
 and the goiMls which ri'in.ained unsold wire sent 
 to Hamilton, where with them siie eoiiimeiiei il 
 and carried on, as she elainied, a similar liiisine.ss 
 to til it carried on in ('ineinnati, pureh isiin; lu^w 
 goods from t'"ie to time. ITjioii an interpleader 
 issue to ti-y her right to these goods as -against 
 execution creditors of her hushand : lb-Id, on 
 the evidence set out m the report, that not only 
 did it aiipear that the liiisiness carrieil on in 
 ! Cineinii.ati by the wife vvasin fact the hush iiid's, 
 but that according to the law of Ohio it must he 
 deemed to be such in the absence of an order of 
 protection, which was the case here : Held, also, 
 I that the business siilisiMpiently carrii'il on in 
 • Hamilton, although ••?401) of her money hid been 
 put into it, was also in fact the husband's liusi- 
 ness, though carried on in the wife's name. 
 
 Leniie v. Vliiilhi rl (,l., 31 C. P. GOO. 
 j 
 
 ': B. told the plaintiff that having failed he was 
 unable to carry on business in his own name, 
 and (U'dered goods to he slii|iped to th . defen- 
 dant, his ivife, who was carrying on business ,as 
 a groc(M% either on her or his order, the account 
 to he opened in her name. (Joods were siiipped 
 accordingly upon onlcrs of the husband, an I cm 
 Olio order of the defendant, and hills were dr.iwu 
 upon the defendant and accepted liy her or in iier 
 naiiii: by her authority. She had separate estate : 
 — ilelil, Higirty, (!, .r., diss., that tlic iilaintilF 
 was entitled to recover. Per Cameron, ■!., the 
 1 defendant was lialile, luing possessed of sepirati; 
 ; estate, whether the goods were liought l>y her 
 ' or by her husliind. In th;! latter case she would 
 ' he surety for her husliand as acceptor of hills 
 I drawn upon her for the [iricc of the gooils. Per 
 Higirty, C. J., the goods wen: bought by the 
 iiiishind, and the liability was his and not the 
 wife's, her name being used merely to shield him 
 from his civilitors, and tln) plaintitF bein.,' aware 
 of this ; tiiereforc tiio defendant was not liahli! to 
 hiin. /re.-<.-iin v. Balw, 2 O. \i., Q. IJ. D. 3,)2. 
 
 Where a wife had purchased the estate of 
 her husband, who had become insolvent, and 
 tliuroifter authorizad him by power of attorney 
 to manage the .same for lior, and to make promis- 
 sory notes in and about the said business: — Held, 
 that notwithstan ling tlie power of attorney the 
 real scope of the hushand's agency could be as- 
 certained from any adinissihlc evidence, and 
 thc'c was sufficient to justify a rinding that the 
 iiusbaiad had authority to sign the notes in (jues- 
 tion which were given to creditors for a debt due 
 before his insolvency. Cooper et al. v. Blacklock, 
 5 A. R. 535. 
 
 In oriler that the ])roperty of a married wo- 
 man whc 1 .irries on a business for herself may 
 be p'- itected from executions agamst her lius- 
 bai\d. It IS not necessary that she should live 
 sepa- vi. J and apart from her husband, or that 
 the busMiess should be carried on in a house 
 other than that in which the husband and his 
 wife reside. The plaintiff, who was possessed of 
 a sum of money (about 8300), felt dissatisfied 
 with her husband's management of his business, 
 his goods having been sold under execution for 
 debt whilst residing on a rented farm, the sale 
 not realizing sutficient to pay the arrears of rent 
 
334 
 
 325 
 
 HUSBAND ANT) WIFK. 
 
 32(T 
 
 ■ viiliil .li^rfciiiiiiit, iiiiil not ci|i|i(i-iril til |)iililic po- 
 licy, hii-hi V. /,'(/•;», •_>(). I!., Cliy. I). 1S7. 
 
 Sfu Tiji/rii V. /;o»v)/, H A. It. ()(•■-', p. .-{Oi. 
 
 vrr. I'liivii.Kci-. OK WiFf, 
 
 anil IiIh ilolits ; Icnviiii,', in fact, nnprd tlic dclif, onti'vcil infn :\n ;\L,'riM'ii'inf iiikIit Si'al, tluvfc all 
 
 for wliii'li tlu' iluft'iidaiit: in tli.' prc-icnt arHon ' iiinticy to lio ri'iicivi! 1 a^ piircli no UMiu^y fur tliu 
 
 Inil olitHlnc'l I'xii'iition. Tin' liii-il>:inil liul litiT- ' satiu', as vvi'M a^ ail routs riMrivcil from a curtaiu 
 
 ally no means, and tin' ]il:nntitl' rivolvccl to start farm of A.'s HhoilM l)i' invostnl in tin; joint 
 
 liot'^Msoi'iiin;.', ami .•i;L,'n'ri| to ^Hvc hor linslianil ' iiamr.i of A. ami mu' ('., ami tln^ imioim* paid 
 
 .s;|,') a montli for his si'rvicis as liar Ivcrprr, tliu over liy C, who wis aiithoi'i/."! to draw tiio 
 
 ilntii's of which he disch iri/cd, and rcsiihil with .'lann', to I?. " as she m ly re jnii'e it for the niiin- 
 
 hcr in the hotel. It w,is hIuwii that whilst tlins tcnanee of A. and W. and tlieir f imily: " -Held, 
 
 cn'Mu'ed slie had two |iartm'r> in carryint; on t1ie 
 
 hotel Imsiness, Tiie delendant seized the goods 
 
 ill tile liotcl, and in an interpleader issue a vcr- j 
 
 diet was rendered in favour of the plaintilF, I 
 
 wliieli the eouit in lianc rttfiised to set aside. On 
 
 appe d to tliiseimrt ; -Held, per Sprag'^'e, ('. .1., j 
 
 and < 'ameroii, J., tliat tlu^ facts sliewed tlie plain- | 
 
 till' to have had a sep.iratt^ trade or oeeiipatioii ' 
 
 within the .Vet, the hnsliand not liaving the con- | I'l ii.c, H V. K. 3.')."), p. 
 
 tidl of tlie liiisiness, Imt lieing hired for a par- | 
 
 tieiilar duty. Per I'liirtoii, .T. A., it was not in- ] 
 
 tcmled that there should he an enipiiry under the | 
 
 Act as to the lioin tides of such transactioij.s ; 
 
 Imt that the fact of tlu^ hiisliaiid's interference j 
 
 witli the eoncnrrcnco of the wife, deprived it at 
 
 once of its sepai'atiM'haraetcr. Per liiirtoii and 
 
 Patterson, .I.I.A., that the intei fence of the liiis- 
 
 luid with the liusiiK.'<s, as s!ie\Mi liy tlii^ evi- 
 
 dt'iiee, was such in reality as to [irevoiit its heini^ 
 
 treated as the separ.ite business of tlio plaintill'. i 
 
 Miirnii/ V. MrCdlliiiii, S A. II. '277. i 
 
 See Ml frii/Kilil'iii Lndii iliiil Su'lii'l^Cii, V, 
 {(i. 
 
 •IIOM .\l;Kr.ST. 
 
 VI. l)i:.\!,iN(is 
 
 i!i;twi%i:\ Hi'siiANn anh Wii'i." 
 1. (Icmralhi. 
 The widow of the intestate claimed agiinst 
 his estate a sum of •':!700, which slie alK'i,'ed ho 
 had liorrowed from her after her m irriaLje, and 
 about tell years before his death, for the piU'liosc 
 of buying a stork in trade. The money was de- 
 pos-itcdin a liudcatthirtime of the marriage, whieh 
 toolc iilice bufori! tile ( '. S. IJ. ( !. e. 7."<:— Held, 
 Per I'roudfoot, V. (J., that the V,. S. IJ. C. c. 73, 
 gave her the right to assert her iiroprietor.sliip 
 asagiinst her hiisliaiid, and as incident tliereto 
 the riglit to liring a suit against him ; to wlucli 
 proeuedings however tlic Statute of Liinit itioiis 
 wasabar. /A- Lairt^Lairi v. Liiiu.-i, 'J-ilJIiy. 3SJ. 
 
 Where by an agreement before marri.ige made 
 in Montreal betu'emi the intending liusb uid and ' there if to b 
 wife, it was provided th it oaidi should (Uijoy all 
 pro))erty, re d an<l iierson il, wliii'h eitli ir might 
 possess at the time of, or .acipiire iliiring tlie 
 marriage, in any way, as his or lior separate 
 property, ami shouM have the ab-iolute con- 
 trol anil management thereof free friuii the 
 debts and doniinds of the other, and after luar- 
 
 VI 11. ArlloNS .AMI Si IIS liV .\NI) Ac.MN.ST. 
 
 1. 11';/;' Siihi,/ hi/ y,,,'i Frhtut. 
 
 Wiien a married woman tiled a. bill in respect 
 of property aeipiired liy her after the parsing of 
 ;i.") \'ict. c. l(i (llie "Jiid day of .March, Is7-), she 
 is not, though married betore that date, rcijnircd 
 to sue by a next friend. Leave wis given to 
 strike out the name of a next friend, where one 
 had been named by mistake, iind an order had 
 beenoblained rccpiiring security for costs. S'lilliy 
 V. (liiriiKj, 8 P. U. 3(1. Stciihens, h'( ferae. — 
 Spragge. 
 
 Where a married woin.in, married before the 
 [lassing of ;■(.") Vict. c. 10, ('Jiid .Mar.'h, 187-2), 
 liles a bill in rcs[ii;ct of [iroporty, whether ac- 
 (juii'i'il bcfoi',' or after that dat.'. she is rcipiired 
 to sin.' by a. next friend. SlcUey '•. (Soring, S P. 
 Ii. IVt, referred to. (Inlfrcij v. llarrUnn, 8 P. R. 
 ■J7-. — Stephens, Rrfrri i'. 
 
 3. Olhi r Citirx. 
 
 Til an aution in a l)i\ ision Court aminst a mar- 
 ried woman on a proiiiis-s iry note, tlu existence 
 of seiiirate real estate was proved, but no evi- 
 dence was given of any separite ir.c-sind est ito. 
 .f'.idginent wis rendered for [ilaintilV, th'j aniciiint 
 lid out of the .sep irati; property 
 she hid when the note wis m ide. Per W^ilson, 
 C. •]. The .Married Woman's Act is coinpliod 
 with by a gener.il jiidg iieiit or by a general judg- 
 ment agiiiist her seiiarite property, and under 
 sueli judgment after ac.piire I sep irate personal 
 property can be followeil. PerOsler.I. A inar- 
 
 , ried woiii Ill's separate personal estite, but not 
 riaga the wifeaciiiiiredi;ertain land of which she h^.,. ,.j.al estate, may be eh irged and .sold under 
 and her hn.sband exeeiited a nmrtgige, and the ^ judgment against her in the Division Court, 
 wife convoyed to the husband in fee ; -Held, j '1'!^, (unissioii to prove the existence of such 
 that by the agreement the land was vested in j .^up.irate personal estate, though it may be urged 
 the wife as her proper separ.ite estate, ami there , ;is a defence, does not alfeet the jurisilietioii. Pro- 
 
 was no incongruity in tlie husband being the 
 grantee of the wife. Ogden n. McArthur, 3!) (J. 
 B. 240, diatinguislied. •Saiider'f v. MaUlmi-<j, 1 
 0. R., Chy. D. 178. 
 
 Semble, that R. S. O. c. 100, s. 2, is retrospec- 
 tive, 80 as to cast the onus of disproving the pay- 
 ment of the consideration on the party impeach- 
 ing a conveyance as voluntary, even though the 
 transaction took place prior to that enactment. 
 lb. 
 
 A. being about to sell a certain property, and 
 in order to induce his wife, B., to bar her dower, 
 
 hibition was therefore refused. //; /'e Widineycr 
 V. MrMuhon, et lu:, 32 C. P. 187. 
 
 Slander of married women — Special damage. 
 See Palmer v. Solme.i, 45 Q. B. 15, p. 207. 
 
 Held, Armour, .T. dissenting, that the evidence 
 of the wife is inadmissible on the prosecution of 
 her husband for refusal to support her under 32- 
 33 Vict. c. 20, s. 25. Jinijina v. BUsell, 1 O. R., 
 Q. B. D. 514. 
 
 Held, reversing the judgment of the county 
 court, that notwithstanding R. S. 0., c. 125, o. 
 
I 
 
 3'J7 
 
 1IU.S15ANI) AM) Win: 
 
 .•i-j8 
 
 
 
 *J(), u iiiarriril wouiari ih still inlitliil, iiinlcr '.'I 
 JiiL'. I., c. 1(1, til 111 ill); an jictimi ill rcs|Jt(t (il li( r 
 M |iaiiitr |iiiiji( it^ ^^itllill six ^lain altci liicniii- 
 ilijj, ilimoVLli. (.iiriiill \, J'il:.;/! iitl(l,i'> A. 1!. .'t'.''-*. 
 
 TLu uourt liiiM no niitliority to iiiaki: u iicihuiihI 
 (irdiT a;{iiiiiNl. a ilrlVinlaiit, u iiiaiiiril >Miijiaii, 
 uiiliHH kIii' liaH «t|iaiati; t'stato. Win re a liill 
 piaycd siK'li u ]i( I'Miiial nnli r Inil iiiiitaiiii d iin 
 all( L;ati(p|i aw t(i k paiati' t xtatc, tlif okUjI' vmh ic- 
 uacJ. (-■ V. J: , it I*. 1!. 174. — ritiiullddt 
 
 Aftidii liy liunliainl mi luliiilf of liimsolf ami 
 rliililitii at^aiiiHt a lailway < i lui iHiy, claiininj,' 
 (laliiaj^cs uiidt r l.nid ( 'iiiii|ili(;irH Act f(ii' tkalli ol 
 «ifi!. Sir Li /I V. 'J III- , SI. Liiwnnct omi Olluvu 
 
 li. w. Co., I (). I!. :,\:,. 
 
 IX. I>i;i;i) (iK Si I'.MtAiiu.s. 
 Silnlili', tlial a |ii(i\isi(iii of a deed <>!' s(];ii"i- 
 tidli lliat tlic iiiaiiiU ii;iiii.(: Kcciircd t(i tlii' witf tVir 
 life, and licr i iuidiLii diaing tlicir iLsidtnc; uitli 
 lii'i', slidnld cdntiiiiii' iidtw itl>stiiii(ling a rcntwal 
 <il cdlialiitatidii, mid that in tljc t vent til tlii' jiar- 
 ticH again m laiatiiii; Idi- Miy tlio like caiints a.s 
 indiici'd t\\v liist jiartini,', tlit^ wliolc oi tlie jiro- 
 vi.sidiiMdl till' di til slidiild revive, dots not iiiiikr 
 till' died void, I'll tlii j^iduiid tliut it i.s (.iintraiy 
 to tin; jidliiy of the law, as . i iiig a jirovLsion lor 
 fiituii' seim ration ; 'I hi k line, vheiea i\v^t\ after 
 reeitiiif; an agieeineiit for se]'aiatidn lietvvecll 
 IniHliand and wife ; that nhe was to liavo the 
 eustddy of the ehililien until twelve years old, 
 and that he, in eon.'-idiuilidn ot her releasing her 
 dower in his lands, had a^ieed to Jiay liei a ii.l- 
 tain sum for iier own and the ehildieiis' inaiii- 
 teuame, seemed to the vile fur her sejiaiate 
 niaiiitenanee a yearly si. in nf irdtlO, and a tiiitli< r 
 yearly sum of .*'2()0 for the iiiaintenanco of eaeli 
 of the children so lonj^' as they should continue 
 in her custody, and iiidviiled, that in the event 
 of a reeoneiliation takiiij; jilaee the annuity for 
 tlie wife and allowaiici! for the children should 
 not be therel'y deleated or levuked ; and in cabe 
 of any future seiiaiatidii ot the [.arties for any 
 of the same causes (which were h\ilIi as td justify 
 a separatiim), the w linle of the iirovisions of the 
 deed should lie revived and he in full force : — 
 Held, that such deed, iiiioii a fair coiistnution 
 of it, was not open toiibjection as iirovidiiigfora 
 future separation ;aiid, Semlile, if it had iiiovided 
 for such seiiaration for the causes inentidned, it 
 would not have been voiil. JJeredil/t v. Williain.'<, 
 27 Chy. 154. 
 
 X. FoKr.KlN DlVOHOE. 
 
 Where one obtained a divorce from his wife in 
 a foreign state, in which Ik; was a bona fide domi- 
 ciled, by Jiroceedinga of which notice was served 
 personally on the wife living here, which weie 
 not collusive, nor contrary to natural justice, and 
 for adultery on the wife's part :— Held, that en- 
 tire credit must be given to the foreign divorce 
 in this Province, although the wile at the time 
 of tie divorce proeeedings resided here, for the 
 domicil of the husband was the domicil of the 
 wife, and the validity of the divorce depended 
 on the law of the domicil of the parties, (jiiini 
 V. Guest, 3 0. R. (.hy. 1). :M4. 
 
 Where, in an action for alimony, it appeared 
 that tlie defendant had, previously to action 
 brought, obtained a divorce from the plaintiff in 
 
 .M., one df the I'liitid Stairs of AliitTica, and for 
 that piiipose had iciideil a Hiilliricnt period of 
 time in .M. to mmply with thi^ lorid law govern- 
 ing diMiice, yet lliat his biiii.i lide ddiiiii'il, biith 
 at the time dl his mai'ria;;e with the |ilaiiitiir, 
 I which also tddk place in the Lriteil States, and 
 al the time df the said divdice, was ( 'aii.iiliiiii : 
 I Held, that the divorce did lot operate in tlii,s 
 I'loviiiee, so as to bar the plaintill'H claim for 
 alimiiiiy. 'I'he niarriagr illation (aiimit be pro- 
 ]iiily legardeil as one of mere contiaet, lor tliu 
 lights, duties, and oliligatiiuis arising Irum itaro 
 lidt left eiitiiily to be ir,,'iil;ded by the agiee- 
 . iiients 111 the jiartits, but are to a certain extent 
 ^ matters of miiniiipal ngulation, and as to them 
 I the law ot the domicil must be Idoked to. J/ii 
 lyiirii v. Muijiini, 3 O. J{., Cliy. D. f)70. Thi.s 
 ' (!ase is in apiieal. 
 
 XI. Ql'AKA.NTINE. 
 
 Held, that the right of a dowress to occupy 
 the man." loll lii>ii.'-«' i In ring her days ol' i|iiai'.'iiiline 
 is not nieiely a per.-oiial ri^bt, but that ^hc in 
 entitled to have rea-oiiable and iiioper attend- 
 ance and cdiii|ianioii>hip, and an action will 
 therefdie lie fdr the evictinn of such conipaniuii 
 or attendant. I.iini.s v. K iiu.i, 'A O. J!., (.'. 1'. D. 
 ■IM. 
 
 XIV. Ai.i.Mo.NV. 
 ]. U'r'i/ iif Ai-n.t/. 
 
 Where the plaintitl in an alimony suit obtains 
 a writ (it an est, and the deleniiant gives bail, 
 and a breach nl the Imnil is eoiniiiilted, the plain- 
 till i.'r entitled to have the amount lor wiiiili the 
 w ril was marked paid into court, to he ap|ilied 
 from time to time in pa\ ineiit of the alininny and 
 '.d.-its : and — Scnible, that mion such jia) iiient the 
 sureties are entitled to be dischaigid from their 
 bond. A'i'((//(((Hi V. AV((//((U», 2!) Chy. 117. 
 
 2. Writ of Xf Ejoitl. 
 
 Where, in alimony suit, the statutmy binul 
 under a writ of ni; exeat has been givm the 
 plaiiitill is entitled to have the moneys deposited 
 as collaterial security therefor paid into cnurt 
 and a]i[ilietl in discharging ai rears of alimony. 
 likliard.sou v. lUvhaitUijU, S 1'. 1{. 274. — I'roud- 
 I'oot.— Siiraggc. 
 
 3. Piuiiriilnr-f. 
 
 The statement of claim in an alimony suit con- 
 tained the following clause: "The )ilaintilf al- 
 leges and charges adultery on the part of the de- 
 fendant as a liirtlier ground for relief in the pre- 
 mises." The jilaintiil' was ordered to give par- 
 ticulars of the acts of adultery intended to he 
 proved within a month, and limited to those only 
 at the hearing, in default no evidence to he 
 given uiuler the general charge. Such an alle- 
 gation, without specifying paiticulars, is bad, 
 l{ostnit'.idl V. L'oMu.i/udl, 9 V. II. 311.— Boyd. 
 
 4. ]V/i('H Gruidcd. 
 
 (a) Di',t('rtion. 
 
 In consequence of u wife having disobeyed her 
 husband by \isiting at the house of his brother 
 
 
320 
 
 TMrouxniNf}. 
 
 3.10 
 
 in-1-i\v, tlio IiusIi.tikI, iliiring licr ,a1>a('nrr', put 
 HUiiilry ctiittcls bcliiiiLjiiif,' t(i licr (iiit.xidc the 
 (Iwclliiiil-li'Hisc, mill liickcil tlic ilnoi' : lldil, 
 thiit tliin w;iM Hiii'li an ac't; (if cxcliisifin ;um1 cx- 
 pnlsidii liy tlid IiiimIi.iiiiI :\h ciititliil tlir wilV tn a 
 (Icci'iii! fur iiliiiHUiy, iiiili|iciiil(iilly of tli(^ t'ait. 
 that (liii'ii'.g siicli c'Xi'lir-iiiin uf tlic wiiV' tliu liiis- 
 baml I'litc rcil into ii frjriiiiil iiiarria;,'i' with tin- 
 otIiiT wiiiiian, with wlioin he ciiiitiniicil ti> livu 
 until after tin; institution of tiiis snit ; iiinl, 
 QuaTu, wh(!thi r ailultiiiy \>r\' hv. Iiy the hnsliand 
 JH not ii ground tntitlinj,' the wife; to alimony. 
 Jlumi/ V. J/ Din I/, '.'7 <'liy. i">7. 
 
 (li) Inkrini. AUiiiiiny. 
 
 An apiiliia^'ion for interim alimony cannot he 
 maile until defence is liled, or the time foi' lilin;,' 
 it has expired. l\clc v. IWk, U I'. H. •J'.M). -I>al- 
 ton, Mdsti r, 
 
 A writ wan issued in an alimony suit on 27tl' 
 Deci eitier, 1881?, and served on the -ttii .lanuary, 
 18s;). The statement of elaim was tiled 11th 
 April, ISS;), and a sittinj^s of the court hehl on 
 2nd April, IHSI!. On tlu' application of the plain- 
 till' on the lotli May, ISH.'?, to the master in 
 chaiuheis, interim alimony wasalhjwed iier from 
 the 1st May, IHS.'!, liei' delay in [iroeeedini,' not 
 bciuj; satisfactorily accounted for. On appeal, 
 Boyd, (!., upheld the master's order. T/i<i»i/'- 
 son V. T/iiiiiijM(iii, 9 1'. 11. 520.— Boyd, 
 
 Inti rim alimony was stayed until thi' plaintill' 
 had [iroilueed on o itli, books, papers, I'tc, belong- 
 h)'^ to her husband, wliicli slii^ had taken with 
 her wheal leaving his house, and which deiirived 
 him of the ineaiis of paying it. O/il v. Olil, 9 P. 
 15. .■),-)•_>. -Boyd. 
 
 (c) Cosh. 
 
 In a suit by tlie woman for .alimony broiiglit 
 seventeen years afti/r tin; marriage on tlui ground 
 of refusal by tlu; tnan to receive her as his wife, 
 hi! set up tile invalidity of the marriage, but wliile 
 under examinition stated that if it was d'^ter- 
 mined that she was liis wifc^ lie w<udd r(!eeivo her 
 as such. The court (I'roiidfoot, V. ('.,) while 
 finding there was a valid marriage <lirect(Ml that 
 upon tjio defendant iindertakiiig to receive the 
 plaiiitiir as his wife, the bill should lie dismissed ; 
 but (U'dered tiie defendant to pay the costs be- 
 tween solictor and client. Ilnhiui v. lioldin, 28 
 Chy. 43!). 
 
 Th(! plaintifF, daring the pemlcticy of a motion 
 for interim alinuiny, r(;turni;d to her husband: — 
 Held, that the <lefendant must pay the costs as 
 between solicitor ami client of the iilaintilF's 
 solicitor, [ji'iinard v. LcoiKird, 9 1'. R. laO. — 
 Daltoii, MaxU'r. 
 
 Sec Kiwwilon v. KiiowUoii, 8 V. R. 400, p. lot). 
 
 5. Applicalloii to Ii'educr Amouiil of. 
 
 On an application to reduce the amount of ali- 
 mony payable by the tlofendant to the plaintiff, 
 the property of the defendant was variously esti- 
 mated (lands and personalty) at from S2,93S to 
 •$(),000, Jind the evidence of the defendant, when 
 cross-examined upon bis affidavit tiled by him in 
 support of the motion, being unsatisfactory, the 
 
 coiirt, (Kcrguson, '\^ C,) refnseil to interfero 
 with the rep(M-t of the master living the amount 
 which had br'eri paid under such repoit tor about 
 eighteen months without objection ; but the re 
 suit of the ;ip]dieatioii was not to be cmiHidered 
 conidiisivi! against the <lefendant on any otlier 
 motion he should be advised to make. I/oliniv/ 
 V. Iluhnni, 29 Chy. 41. 
 
 When; in ii suit for .ilimony n. decree was 
 obtained and regioter d in tin; counties in whicdi 
 the defendant owned 1 u ds, pnisiiantto It. S, O. 
 e. 40, H. 44, and «rit,< of li>ri facias against tlie 
 gooils of tile defendant had been issued and re- 
 turiii d nulla bona, ifii applii:ation by petitir)n, 
 setting forth tl ' lacts, ■ ii order u. . made <1(!- 
 elaiiiig the phi • itl' to have a li'ii apon (lit! laml.'i 
 of tlie defeidant afb etc 1 by the registration of 
 the decree;, and for an in ■ dliate sale of the said 
 lands, the proceeds to be p.iid into court, ai.d 
 applied in [layiienlof aHiiiony. Forn .sl< r w Fur 
 r,:<ln\ 9 l". R. :t;(8. I'.lake. 
 
 W'Ikm'o a suit for alimony was ])ending, and it 
 was alleged, that an action liroiight i liiist the; 
 I husband was so brnuglit for the |mrpose ol <lu- 
 I'eating the sait for alimony and depriving the 
 wife of her dower, an order was madi; admitting 
 the wife to defend the action. Fcrr'ix v. FirrU, 
 9 I'. R. 44:i. Dalton, .)/-f.s/r/-.--|''erguson. 
 
 .Sue Sub hea.l X., p. 327. 
 
 XV. Misf.'i:T,L.\N'F.ous Cases. 
 
 A married woman was lessee of certain pro- 
 mises in which her husband sold liipior without 
 a liciMisc, contrary to the provisions of R. S. O. o. 
 ISI : -llidd, that slu; was liable to Ik; lined under 
 see. 8,'l of tiie Act, altliough the sale of the liipior 
 took i>lace in her absence. Itcifinii v. (Jaiiip/tc/l, 
 I 8. I'. R. ;■),-).— 11 agarty. 
 
 I lT(dd, in an interjileader suit, tliat a married 
 I woman was not a jnoper sun^ty, and time was 
 I given to substitute another surety for her. Mut- 
 |'/;« V. />(ixrn, 8 I'. R. ;{72. — iJalton, Q. 0. 
 
 ' When land is taken under authority of legis- 
 ' lative iirovisions similar to Revised .Statutes of 
 1 Nova Scotia (4th Series), c. S(i, s. 40, et seip, the 
 j compensation nuuiey, as regards the capacity of 
 i married women to deal with it, is still to be 
 
 regarded in eipiity as land. Ki.'aniri/ v. Kean, 
 
 ;j S. C. R. 332. 
 
 Sue also, Fuoll v. Bia- H al., 4 O. R. 94. 
 
 ILLECUTIMATE CHILD. 
 
 .?('(' Bast.vim). 
 
 IMPKAOH^MKNT. 
 
 Of County Court .Judge— Sec Ne Sqitier, 46 
 , B. 474, p. 1(17. 
 
 IMPOUNDING. 
 
 Ste Distress. 
 
331 
 
 IMPROVEMENTS ON LAND. 
 
 332 
 
 X 
 
 III*. 
 
 •nip 
 
 
 IMITJSONMKXT. 
 I. Akkk.st. 
 
 1. OituruUij — Set Arrest. 
 
 2, MuiiciiHts Arirtit—Sce MAi.iciors Au- 
 
 RKsr, I'uosiX'Liiii-N AM) Otiii:!; I'ro- 
 
 CEKDlNfiS. 
 
 II. AtTACIIMDNT — Si'i AtTACIIMKN'I (IK THE 
 pEliSHN. 
 
 III. C'A. Sa.— .SV'- CaI'IAS AnSATISKACIENIirM. 
 
 IV. False Iiij'rison.me.nt — Sec ^Ialuious 
 
 Arrest, I'roseci'tion ani> Other 
 I'EocEEDiNfis— Trespass. 
 
 V. IlAiiEAS C'oRiTS—iSVf Habeas Cohits. 
 
 A cduiity juilgo lias jiower to iniprison in the 
 county jiidyis' t-iiniiiial cnurt. Uajiiia v. .*>'/. 
 Denis, 8 1'. 1{. l(i. — Cameron. 
 
 Held, that iin]iiiHunnient at hard labdur for a 
 year was iirojierly awarded under ;iS Vict. c. 47, 
 for nialifiiiusly woniiding. Ji'cijiua v. JJouclicr, 
 8 P. K. L'O.— Hagarty. 
 
 The conviction adjudged payment of a fine and 
 costs and in defauit impriscinnient ;— Held, good 
 and that it Mas not ncc.(.>.sary to order that a 
 distress warrant to comiiel jiayment of the line 
 should lie issned hefore imprisonment, liajbta 
 V. Smith, 40 Q. ]}. 44L>. 
 
 Per Arnionr, J. The giiieral sessions of the 
 peace have no power under 3'J-I?.S Vict. c. ,31, to 
 amend the sentence in a conviction, as hy strik- 
 ing out the part imposing hard lahour, lint can 
 liearaml determine an aiijieal on th<' arl judication 
 of guilt only. Hagarty, (.'. .)., inclineil toa';ree, 
 but gave no exjKcss decision on this point. Mc- 
 Lellan v. McKlnuun, 1 0. l{., 0- B. D. 219. 
 
 Per Armour, J. This court has power to 
 quash a conviction for an illegal adjudication of 
 punishmint, although it has Lecn appealed 
 against and aiiirnicd in respect of such adjudica- 
 tion ; and s. 71 of .'{•-'-■"io \"ict. c. 31 I)., docs not 
 take away the certiorari in such a ease. //;. 
 
 The conviction awarded imprisonment witli 
 hard labour in default of payment of the fine. 
 The sessions amended the conviction l)y striking 
 out hard labour and awarding iniprisinmcnt only 
 in default of distress. The commitment under 
 M'hich plaintifl v\a.s conlincd directed imprison- 
 ment at hard labour. Per f'amcron, J. — The 
 conviction as amended, which was the only one 
 put in evidence, superseded the original convic- 
 tion, and in eflcet (plashed it so far as regarded 
 the bard labour ; defendant was bound to shew 
 an existing conviction authorizing the eommit- 
 uient, and as he failed to do tliis, the excess of 
 jurisdiction in awarding hard labour made him 
 liable in trespass ; and — .Semble, that the award 
 of imprisonment in the tirst instance under the 
 circumstances in evidence, would also make him 
 BO liable, lb. 
 
 The by-law directed imprisonment 6nly in 
 default of distress. Quare, Per Cameron, J,, 
 ■whether the 32 ;t,3 "S'let. e. 31, s. 5!), would ap- 
 ply so as to enable the justice to commit under 
 it in the first instance upon proper evidence, lb. 
 
 Per Cameron, J. Quale, whether upon the 
 evidence set out in the report of the ease the 
 finding that the plaiiititl' was not put to hard 
 labour was justitied. Ih. 
 
 Held, overruling Regina r. .Mlbright, 9 P. K- 
 2.5 ; Pegina v. Frawley, 4f) Q. P. I,'i3 ; and lle- 
 gina V. Pipe, 1 t). Pi. 43, that the legislature of 
 the ]irovince ha.s power to imjiose hard labour in 
 addition to iiiiiirisonnieut. Jtii/iiia v. lltnlije ; 
 licijhww Fnucbji, 7 A. It. 24() ;'9 App. Cas. 117. 
 
 The prisoners were convicted and sentenced to 
 one year's iniprisinnucnt upon a charge of having 
 defrauded one C. by a giime called three card 
 montc :— Held, bad in adjudging the sentence of 
 one year, as the Act 40 \'ict., c. 32, IJ., under 
 w hich they were committed for trial only author- 
 izes a sentence for any term less than a year. 
 GoodiHitii (V al. V. I!<;;!ii(i, 3 O. P., (l P. D. 18. 
 
 As to jiow cr to impose hard labour under the 
 Canada Teniiicrance Act, 1878. See L'ciiam v. 
 Wuk/i, 2 O. it. 20G p. 99. 
 
 OlPK0VE?*IENT.S OX LAND. 
 I. Imi'kovementson Ti:rsTPRoiM:i;TV,332. 
 
 11. Co.MrENSATlON EOH I.ViriUJVEMENT.S. 
 
 1. Co)i>'(:(fi(')if ou Uu.^kilj'ii! Siirvfij, 3,32. 
 
 2. L'mkf Mistake of Title, 333. 
 
 3. Under Leanen — See LAN'M.oRn and 
 
 Tenant. 
 
 in, UlUllT To THE rsE 01" 1.M1'RoV|;ME.NTS o.v 
 
 Streams— (S'tt: Waiicu and Waieu 
 Courses. 
 
 IV. IvE.NT I'AYAllLE liY I:M1'I:0VE.MENTS— >Vt 
 
 Landlord and Tenant. 
 
 I. I.MrUOVEMENTS ON TrI ST ProI'ERTV. 
 
 The court under special circumstances, allowed 
 money to be expended on iinprovenieiits on a 
 certain property of a testator who had directed 
 by his will that the rents and prolits of all his 
 property should be expended in payment of 
 dehts, and in the support of his wife and children 
 until the youngest child should come of age. Jh 
 Bender, H P. ](. 399.- Spragge. 
 
 See He Smith's Tnisl.i, 4 O. P, 518, p. 234. 
 
 II. Compensation foe Improve.ments, 
 
 1, Consequent on LTnakilful Survetj. 
 
 AA'here S. having purchased a lot of land, em- 
 ployed a public land surveyor to mark out the 
 boundaries of it for him, and the surveyor, by 
 reason of an unskilful survey, included in the lot, 
 as marked out by him, land which should not 
 have been so included, and S. misled thereby, 
 
 , effected improvements upon the land so erron- 
 eously included : — Held, on recovery of the said 
 
 , land by the rightful owner, that S. was entitled 
 
 1 to compensation for the said improvements, un- 
 der R. S. O. c. 51, ss. 29, 30. rtinnh v. Strii.hof, 
 2 O. P., Chy. D. 614, This ease has been ap- 
 
 I pealed. 
 
.•132 
 
 ur iii)ou the 
 he cat-i! tlic 
 (lut to liiU'd 
 
 ht, 9 r. K. 
 '.'} ; and IJe- 
 ;nisliituit! of 
 I'd hd)i)Ui' in 
 
 V. J/di/i/c ; 
 )l>. Cas. l'l7. 
 
 ailti'llOfd to 
 ;e of having 
 thruc card 
 ■ wuiituiicu of 
 !, D., iindur 
 idy auUioi-- 
 liau a yuar. 
 ). a. D. 18. 
 
 r iiiuki' tlie 
 Rtijimi V. 
 
 >n:i!TV,:?32. 
 
 M KNTS. 
 >I.ORD AND 
 
 \NU \V.\ii;u 
 
 IMENTS— >'('(' 
 
 I'. 
 
 H'KKTV. 
 
 ces, allovnd 
 incuts on a 
 ia<l dirci'tod 
 ts of all ills 
 [taynifiit of 
 Liid ciiildren 
 '- of i\w. Re 
 
 p. L'34. 
 
 ;ments. 
 
 nvy. 
 
 >f land, cm- 
 :iik ont the 
 invcyor, hy 
 d in till: lot, 
 should not 
 I'd tht'iuhy, 
 d so LTion- 
 of the .said 
 vas entitled 
 -■nient.s, un- 
 V. Sli iidaij}', 
 18 been up- 
 
 333 
 
 INFANT. 
 
 334 
 
 Under Mistake of Title. 
 
 Held, reversing the judgment of Gait, J., 31 
 C.P.. 227, that under K. S. O. c. 95, a. 4, which 
 entitles a defendant in ejectment to the value of 
 the lasting improvements made on the land to 
 the extent to which the land has been enhanced 
 thereby, the plaintiH' is entitled to an account of 
 the lents and profits to be set off against the 
 value of such improvements. In ejectment it 
 was ordered in Hilary 'ierm, 1870, that a verdict 
 should l)e entered for the plaintitl', but no execu- 
 tion to issue until the value of the improvements 
 was ascertained and the amount thereof paid to 
 the defendant, and that it be referred to the 
 Master in Chancery at Ottawa, to ascertain such 
 value. The master made his report on the .lOth 
 of October, 1879, merely finding the value of the 
 improvements, without making any allowance 
 for the rents and profits. In Kaster Term, ISSO, 
 the plaintiff moved to refer back the reiiort to 
 the t;;aster to make such allowance : — Held, tliat 
 the reference was to the master .as an otiicer of 
 the court, and that theie was nothing in any of 
 the .sections of the C. L. P. Act, 11. S. (>. c. oO, 
 relating to arbitiations, which interfered with 
 the rigid of the court, under the circumstances, 
 to review the act of their otlicer, and to send the 
 matter l)ack for his reconsideration. The matter 
 was therefore referred back to the niaster to 
 make such allowance. Quiere, as to when mesne 
 prolits may now be recovered in ejectment. 
 Quale, also, whether a reference by consent iiy 
 rule of court or judge's order is within sec. 205 
 of the V. L. V. Act. MtCurtlni v. Ailmckk, 31 
 C. 1'. 405. See also S. C, lb. 48. 
 
 The plaintiff being in possession of property— 
 a flouring mill — of which he believed his wife to 
 be owner in fee as heiress of her father, expended 
 upon it about §3,253. After her death the 
 father's will was discovered, which gave her a 
 life estate only. Upon a reference to the master, 
 at London, to ascertain the amount of enhauce- 
 nient in value of the property, that oliieor, on 
 the evidence adduced, found that its value at the 
 deatli of the testator was .^2,700, and that the 
 value at the date of the report was .'54,500 : — 
 Held, that he had, under the circumstances, 
 properly found the enhanced value ..f the estate 
 by reason of such expenditure to be $1,800, not 
 •"■1,300 — although upon a sale under a decree of 
 the court the property had realized .$4,000 (riily 
 — and further, that the plaintitl' was entitled to 
 interest on such enhanced value from the time 
 the money was ex^jcnded. Fawcctt v. Bunrclt, 
 27 Chy. 445. 
 
 The master in ordinary, on appeal fron- the 
 master at LoihIou thought the plaintitl' hail been 
 charged with rent on the unimproved value ; 
 but I'roudfoot, V. C, on apjieal, reversed this 
 finding, thinking it against the we'glit of evi- 
 dence, which he had the .same opportunuy of 
 judging of as the master in ordinary, who had 
 not seen the witnesses, lb. 
 
 Semble, that a forced sale for -ash is not a 
 proper mode of determining the amount of the 
 enhancement in value of an estate w liicli has been 
 iinproved by a person in possession under a bona 
 tide mistake of title, lb. 
 
 Where a claimant of ceitain lands commenced 
 an action of ejectment, in which he afterwards 
 entered a nolle pros., and then, subsequently. 
 
 I coninieuccd a suit in this court for the recovery 
 I of the said lands, and the defendant claimed 
 compensation for improvements made under bona 
 tide mistake of title : — Held, the defendant was 
 j entitled to compensation for improvements made 
 I before the ejectment action, and for those made 
 ! between the nolle pros, and the comiueiicemeut 
 of the second suit, but not for those made during 
 j the pendency of the ejectment, or since the com- 
 mencement of the second suit. O'Gntdi/ v. Mc- 
 Cii/rui/, 2 0. R., Chy. D. 309. 
 
 ] See also McGrajor v. McClfcijor, 27 Chy. 470 ; 
 j Wcat'ury. Vandnifat — Willsw. Aijeniian, 27 Chy. 
 1 477 : IVaLsou v. Kclc/nuii, 2 0. l-t. 237 ; Footl v. 
 Nice, el id., 4 O. K. 94. 
 
 INDECENT ASSAULT. 
 See Criminal Law. 
 
 INDEMNITY. 
 
 See GUAliANTEE AND InDEMNITV. 
 
 INDIAN LANDS. 
 
 1'he Li(juor License .\et applies to Indian 
 land under lease from the Crown to a private in- 
 dividual. See Ihi/iiia v. DiKjiwtte 9 P. Jt. 29.— 
 Osier. 
 
 INDICTMENT. 
 See Cri.minai. Law— Extradition. 
 
 INDIGENT DEBTORS' ACT. 
 
 In an action for seduction, the defendant was 
 arrested under i writ of ea. re., and judgment 
 having been entered against him, a ea. sa. was 
 issueil, and he was surrendered by his bail to the 
 custody of the sheritf : — Held, that the defendant 
 was not in custody as a debtor, or on execution, 
 but on mesne pioce.i-s as a wrong-doer, and that 
 he Mas not entitled to an order tor ])ayinent of a 
 weekly allowance under the Indigent I)ebtors' 
 Act, H. S. O. c. ti9. WlKotly v. S/uoj', 8 P. R. 
 189. — Cameron. 
 
 Held, that it is within the power of the clerk 
 of the crown in chambers to make an order for 
 the jiayment of a weekly allowance to a debtor, 
 under the above Act, where it can legally be 
 made. lb. 
 
 INFANT. 
 
 1. CONTKACTS BY INFANT, 335. 
 
 II. Actions and PROCEEUiNuy iiv and 
 
 AdAINST, 335. 
 
 III. Guardian, 330. 
 
 IV. CrsToDV OK Infants, .337. 
 V. Adoption of Infant, 337. 
 
 VI. Infant's Est.vte. 
 
;53r) 
 
 INFANT. 
 
 336 
 
 •liii. 
 
 
 
 1. Momii in Court, 338. 
 
 2. MaiutfiKinre, 338. 
 
 3. .SVi/e «/, 338. 
 
 4. Partition of— See Partition. 
 
 5. Tra^tA'is of-Sce Tucsts and Trustees. 
 
 VII. lU.EOITIMATE CllTLT)— ,SVe BaSTARD. 
 
 VIII. Infa.vcy as a bar to the Statute ok 
 LiMirATioNs — .SV.'« Limitation of 
 Actions and Su.ts. 
 
 I. Contracts by Infant. 
 
 The iiliiintiif licing at tlie time an infant, on 
 February -Otii, ISTS, exeeiited a in(irt,'aL.'e in fa- 
 vour of tlie (iLfLiiilauts. Tiie prooec'ils were chief- 
 ly applied in payijig oil' prior ineuinhrinces on 
 the land. Tiie plaintilf came of age on April 
 lOtli, I.S.SD. After this date, and witii full know- 
 ledge of Ilia po.sitimi, he, on Janu.uy lOth, ISS-i. 
 exeeuted anotlier mortgage, with tiie oliject of 
 in part ]iayingoll' tlie mortgage in (lucstion; and, i 
 moreover, l>y certain coiiver.-sation witii an agent ] 
 of tiie defendants he admitted his lialiility under ] 
 the lattrr moi'tgage, nor did lie take any stejis to ; 
 iiisaliirm it until 7tli September, ISSi. On 30th 
 September, 1882, this action was eommeneed : — 
 Held, that tlie mortgage in (piestion was not void, 
 but only voidable, and that the plaintitl's conduct 1 
 after he came of age amounted to a ratitication of 
 it. F(ili-(i V. Camtda /'ennainiit Loan and Sarimjn 
 Co., 4 ()■ ii., Chy. U. 38. 
 
 The rule is now well established, that the deed 
 of an infant is not void ab initio, lint voidal)le, on 
 his attaining majority. If he wishes to avoid it, 
 he must expressly repudiate his contract within 
 a re.isonalile time after coming of age, otlierwise 
 his sileiue will lie held to amount to an allirinaiice 
 of it. ]l>. 
 
 Cemble, that acts o'. less moment and signiti- 
 canc(^ tlian are re(piired to avoid the conveyance 
 of a minor, may be suQieieiit evidence of its rati- 
 tication. lb. 
 
 Semble, (per Proudfoot, J.) that it must be 
 presumed tliat an adult who atlirins a deed exe- 
 cuteil l)y him during infancy, does so vi itli know- 
 ledge ot liis riglits, and of his exemption from 
 liability. Ih. 
 
 I'er Hoyd, d. — The policy of the law now is 
 .generally to allow the infant to suspend his ulti- 
 mate decisiim upon (piestions of benetit or injury, 
 till lie is oi legal eajiaeity to bind himself as an 
 adult. When he arrives at majority he is clothed 
 with full legal capacity with all its incidents, 
 and, as an adult, has no special protection on the 
 grouml of ignorance of the law, and any disafhr- 
 manee by him of a deed executed during minority, 
 should only be given cHect to on the terms of 
 his restoring to the otlier party, as far as possi- 
 ble, any benefit obtained by him during minority. 
 lb. 
 
 coedinga under the Quieting Titles Act, proof of 
 service of the decree was dispeused with. Re 
 (r,/,-/n-i.it, 8 p. R. 472.— Blake. 
 
 A final onler of foreclo-sure should reserve a 
 day forinfant defendants to shewcanso. Spragge, 
 ('.. was of opinion that the practice should be 
 changed for the sake of putting an end to litiga- 
 tion and to the evil of having estates tied up for 
 perhaps many ye.ars, but refused to cliange the 
 practice in tlie present case. Lomlnu and ('ana- 
 (lian Ltian and Aijcnci/ Co. v. Everett, 8 P. K. 
 489. 
 
 An administration of an estate in which in- 
 fants were interested, was made on the mere 
 suggestion of tlieir next friend that it would be 
 for their benetit, without going into the mei-its 
 of tiic case between the plaintilfi'auil the defend- 
 ant, tiie executor. Re Wilson— Llo;/d v. Ticli- 
 Ijurne, y P. K. 8!).— Proudfoot. 
 
 The costs of serving an infant personally who 
 is out of tlie jurisdiction will not be allowed. 
 The ])ioper method is to olitain a prjeeipe order 
 appointing a guardian ad litem, under (l.O.Chy. 
 ()!(), and serve him. The official guardian is now 
 by O. .J. Act, see. 6G such guardian. In this 
 case an allow.ince was ordered to l)e made if the 
 personal service on the infants had facilitated 
 the ollicial guardian in communicating with them 
 or their relatives. Rrw v. Antlioni/, 9 P. K. 545. 
 -Boyd. 
 
 In an action of ejectment by mortgagees, on 
 the application of the infant dcfembuits, an order 
 for immediate possession and sale of the mort- 
 gage jircinises was made, with a reference to the 
 master to take the usual accounts, but .•?S0 was 
 ordered to be jiaid into court to meet the ex- 
 penses of the sale. IVcstern Cinuvbi Loan and 
 .Sarin;/.-i Co. v. Dunn, 9 P.R. 587.— Armour— re- 
 scinding order in S. C. lb 490. 
 
 Right of infant partner to restrain sale of part- 
 nership property under exi;cutioii obtained 
 against the co-partner. See Yoawf v. JIulier, 29 
 L'iiy. 49. 
 
 See Rider v. Riehrr, 27 Chy. 576 ; 7 A. R. 
 28-2. 
 
 II. Action.s and Proceedings bv and Against. 
 
 Where there was no evidence to shew that 
 infants had been served with n decree of forc- 
 elosuri!, reserving to tlu^m a day to shew cause 
 on attaining their majority, but it was shewn 
 that they had been served with notice of iiro- 
 
 III. GlTARDIAN. 
 
 It was provided in a will, (1) That tlie inter- 
 est <m investments should be paid by trustees 
 for tlie benetit of certain infants to their guardian 
 appointed l>y tlie will, or to sucli guardian, ex- 
 cept tlie fatiier of the iiifauts,as the e(nirt should 
 appoint ; and (2) Tliat if the father ajiiilied to 
 tlie court, the trustees were to allow tlie interest 
 to accumulate and be invested till the infants be- 
 came of age. The guardian named ceased to act, 
 and after the lapse of two years (notice having 
 been given to the father), it was ordered, (I) 
 That tlie petitioner, the aunt of the infants, with 
 whom they had lived since the death of their 
 mother, the testatrix, should be appointed guard- 
 ian ; (2) That the petitioner should be paid for 
 the past maintenance of the infants. AV JJey- 
 wood, 8 P. R. 292.— Blake. 
 
 Where one brought an action agaiiistanexocntor 
 in this country to recover legacies be<jueathe<l to 
 infants, resident in Minnesota, of whom he had 
 been appointed guardian by a Probate Court of 
 Minnesota, and it appeared that the duties and 
 
336 
 
 337 
 
 INJUNCTION. 
 
 338 
 
 7 A. R. 
 
 powers iif guardians under tlie laws of Minnesota 
 were not greater tlian those of testamentary 
 guardians, or gu iriUans appointed by a Surrogate 
 Court in this country: — hield, that the money 
 must l>e paid into court, ami not to ttio foreign 
 guardian. Semble, th:it the rule might l)e modi- 
 fied if the sum were small, ami the whole, or 
 nearly tiiJ whole, were required for the infant's 
 edueatio,. and maintonaneo, or other immediate 
 use. F/'iwln-s v. yrErdijii, 4 O. R., Chy. D. 
 704. 
 
 See Ifrwv. Anthonij, 9 P. R. 54.'), p. 331). 
 also llirL-fi- V. Rirbv, 27 Chy. 57t!, 7 A. R. 
 Galhralth v. Dnnromh^, 28 Chy. 27. 
 
 See 
 282; 
 
 IV. Cl'stody op In'kan'ts. 
 
 The mother of a child six years of age, whose 
 father was dead, having re-married, delivered up 
 the child to a cousin for nurture and adoption. 
 No written agreement was made, an 1 the parties 
 differed as to the verbal understanding: — ITelil, 
 thit the court, looking only to the best interests 
 of thi; child, sliould refuse to direct its rc-delivcry 
 to tile mother. Tlie fact of the motiier having 
 re-m irried, and having children by botli hus- 
 bands, ami til it tlie cliild would be under the 
 custody of a stepfatiier, was regarded as one 
 ground for the n>ii-interferencc of the court. l)i 
 n' Srull, 8 P. 11. 58.— Osier. 
 
 While the undoubted natural rigiit of a father 
 to the custody and guardiansiii|) of his chilil is 
 undisjiut 'd, and while the l.iw imputes ai)ility 
 and iuchii ition totlic i)ai'ent to perform liis iluty 
 to his eliild, the right is yet founded up(m his 
 actual ca^iaeity to discli irge this duty, and his 
 su|)erior claim to the custody of his offspring 
 may Itc sus|)eu<lcd while tlie incapacity lasts. Un- 
 der the circumstances of this case, stated in the 
 report, tlie court refused, on th ■ ai>p1icition of 
 the fitlier, to take tlio child out of the custody 
 of its gi'andmotlicr and iier brother-in-law. Jhi 
 Fi-rjiisitn, 8 I*, it. 5,")(i.— Boyd. 
 
 Where the fatlier and mother of a female 
 chiKl uu''er live years of age were living apart, 
 tile court )cfused, under the circumstaiues stated 
 in till' JM Iguient, to take tlie child out of the 
 custody I'f the imithcr, l)Ut allnwed tlic father to 
 have a-ccs i to the child at stated times. In re 
 Miml„rli,<)l\ R. 132.— Osier. 
 
 Custody of illegitimate child. Sec fii re Smith, 
 8 P. U. •-':{, p. 71. 
 
 six years old, to bring up as their own, and mako 
 lier solo heiress to tlieir property at their death, 
 and where it appeared that the agreement w.as 
 bona fide iutendeil by the father for the ultimate 
 benefit of the phiintiir, and tiiit the plaintiff had 
 remained witli H. and his wife for twenty years, 
 rendering them efficient service, and it appeared 
 H. intended her to liavc his property, and re- 
 garded the agreement as binding, so that he 
 considered it unnecessary to mike a will : — Held 
 (reversing the judgment of Fcguson, J.,) that 
 the agreement could he enforced against H.'s re- 
 presentative, and that it must be ileoreod accord- 
 ingly : — Held, also, (afHrming Ferguson, J.,) that 
 inasmuch as, if the parents of the plaintiff had 
 brought a suit upon tlio agreemiut in this case 
 and recovered, they would be trustees of the 
 proceeds for her, the plaintiff might maintain the 
 suit in lior own name, liolirrti, v. Hall, 1 O. R., 
 Chy. D. 383. 
 
 VI. Txfaxt'.s Estate. 
 
 1. Moiu'ji ill Court. 
 
 Payment of money out of court to infants 
 under order mailo prior to passage of O. J. Act. 
 See Re Cameron, 9 P. R. 77- 
 
 V. Adoi'tion of Ixfaxt. 
 
 Wiurc a father enters into a contract whereby 
 he parts witli the custoily and coiitnd of bis 
 child, witli tile l)ona fide intention of ailvaneing 
 the welfare of the child, there is nothing in such 
 a conti- act illegal or contrary to public policy ; 
 and althou'di, where such a eontr.act is execu- 
 tory (ui both sides, the court cannot decree spe- 
 cific performance, by reason of tlie want of mu- 
 tuality, yet where the contract has been faith- 
 fully performed so far as the father and child are 
 coneeiau'd, .so that their status has become al- 
 tered, the court will, if possililc, enforce in specie 
 the performance of the cont'-ict by tlie other 
 party to it. Where, therefiu-e, the parents of 
 the plaintill" agreed with H. and his wife to give 
 up to thiiii their daughter, the plaintiff, then 
 22 
 
 2. Maintenance.. 
 See Re Heywood, 8 P. R. 292, p. 336. 
 
 3. Sale of. 
 
 Although by the general rule and course of 
 proceeiling in mortgage cases the mortgagor is 
 entitled to si.'c months to redeem, before a sale is 
 ordered, the court will, under s|iecial circum- 
 stances, direct an immediate sale of the property, 
 even .as against the infant heirs of the luortgagor, 
 Sivift v. Milder, 27 Oliy. 217. 
 
 On a sale of the land of an infant under R. S. 
 O. e. 40, ss. 75-83, .an order was made under 44 
 Viet. c. 14, s. 5, O., barring the dower of the 
 infant's mother, who was a lunatic and confined 
 in an asylum. R,' "ollhart, 9 P. R. 35(5.— Fcr- 
 f/'.son. 
 
 Interest of infants in land barred by convey- 
 ance by mother, who was part owner, ti a railway 
 company. See l)nnhi}i v. The Canada Central 
 Railwnij Co., 45 Q. B. 74. 
 
 See also In re Trektvn and Horner, 28 Chy. 624 
 
 INFORMATION. 
 
 I. By Attorney Geneiial— .S'c^ A'rroRNEr 
 General. 
 
 •I. Under Canada Temperancb Act 1878 
 — See Canada Ti;mim;rance Act, 
 1878. 
 
 INJUNCTION. 
 
 I. From County Court, 339. 
 II. To Stay Legal PaooEEDiNo.s, 339. 
 
339 
 
 INJUNCTION. 
 
 340 
 
 > 
 
 
 
 711. To ]!l>TliAIN Cl TTINO AND EeMOVSNG 
 TiMliKK, 341. 
 
 IV. CoMMiTTiNo Oil Continuing NuisANUKS. 
 
 1. Offimivt Tradi; 341. 
 
 2. J/iij/iirai/.s uiul L'ailirayg, 342. 
 
 V. To JiKSTKAIN Tlil'Sl'ASS, 343. 
 
 VI. To Eksthain ExrKoritiATioN of Land, 
 344. 
 
 VII. To IvKsTHAiN ]nfium:emknt of Trade 
 JMAJiKs, 345. I 
 
 VIll. To JtKSTliAIN ISE OF TaIFNT— »S'ct' I'aT , 
 
 ENT OF Invention. 
 
 IX. BliEAC'JlES OF C'OVENANTH OR AoliEE- I 
 
 MENTS, 345. I 
 
 I 
 
 X. Ukhveen Landi.ohd and Tenant, 34G. 
 
 XI. To SIlNUirAL COIU'OKATIONS, 34C. 
 
 Xll. KesTEAININO AniilTIiATOHS EKOM Pko- 
 ( EEDi.Sd — 6(6 ArilJTEATlON AND 
 AWMW. 
 
 XIII. Otiiek Cases, 347. 
 
 XIV. TaETIES to Ari'LICATIONS FOE. 
 
 1. ir;/V', 347. 
 
 2. Aildiuij rudks, 347. 
 
 XV. PlUlTlCE. 
 
 1. Ddaij hi Apjilkalkm for, 347. 
 
 2. £iiUii(li]ii/ (Did Cviitimiiiiij, 348. 
 
 3. OUicr Cam's, 349. 
 
 XVI. In'jeei.oci JOKV ]n,iin(TI()N, 349. 
 
 XVII. CoNTEJir'j' OF Injunction, 350. 
 
 I. From County Court. 
 
 Tlic County Com t (ni iU ujiiilj .«i(le Latl i;(/\vir 
 to grant an injiuictii ii in any case coming with- 
 in its juiii:(iicti( n. 1 he tact of the title to land 
 eoDiing in ((Ucsti< n did i,<it oust the jnii^dietitn 
 of the County Cciurt on its c(|uity side. Jhtc v. 
 Trivi, 8 r. li. 405.— Taylor, JUa.,(ir. 
 
 II. To Stay Legal Prcoeedings. 
 
 A court of cijuity -will restrain a creditor who 
 has olitaincd an attaching order at law, frcn? en- 
 forcing it against a lui.d recovcicd liy means of 
 a suit ill c(juily to the jirejudiee of the attorneys 
 lien for costs in that suit. T/n- Cinuidian lliuik 
 of Ccihvii ra V. Cii.iu/i, S 1'. I!. 437. — Osier. 
 
 Where on tlie sale and cc nveyance of land the 
 existence of an ineundiralice is concealed hy the 
 vendor, wlio covenants against incumbrances 
 and the purchaser executes a mortgage to secure 
 a balance of unjiaid iiurchase money, the Couit 
 will restrain an action to enforce pajnunt of 
 such mortgage, brought at the instance of the 
 mortgagee— or the v<ihintary tiansferee— unkirs 
 the amount of the inci.njbrance so ciiiccakd is 
 deducted from the sum t-c cured by such mort- 
 gage. This jiiinciiilc was aijiliid in a case where 
 the purchaser v as a muriiecl woman, and her hus- 
 
 band had joined in and executed the mortgage, by 
 which he covenanted to ))ay the amount secured 
 thereby, although the covenant against incum- 
 brances was to the wife and not to the husband, 
 the covenantor, himself. Lovdace v. JJiirriin/fon, 
 27 Chy. 178. ' 
 
 Proceedings were taken before a county judge 
 to garnish certain nionej's, payable by tlie county 
 to the plaintiff, as clerk of the peace and county 
 crown attorney, and which moneys that judge 
 ordered to be attached in favour of the creditor, 
 tile present defendant. Thereupon the deljtor, 
 the defendant in those proccednigs, lileil a liill 
 in this court, seeking to restrain fui'tlier action 
 on such order :— Held, that this court had no 
 jurisdiction to grant the relief a.sked ; that the 
 proper course to olitain such relief was, by ajipeal 
 to the Court of Ainieal ; ami, without deterniin- 
 w hether the claini of the debtor against the 
 county, was such as could lie garnished, the 
 court (I'ruudfoot, V.C.,) refused the njotiou for 
 injunction, with costs. Van yunuan v. ilrant, 
 '11 Chy. 49S. 
 
 The plaintiflf who claimed title under a deed, 
 madeltefore, though registered alter, the lodging 
 of an execution in the hands of the sheritl was — 
 Held entitled to an injuncion to rchtiain a .'<ale 
 by an execution creditor, of the inteiest which 
 her co-dcfindant in the exicution would have 
 had in land but for such deed ; and she \\as not 
 bound to attend the shcritl's sale, explain her 
 interest, and protest. RiixxcU v. l!ii>iKill, '28 
 Chy 419: 
 
 The common law riglit as to the priority of an 
 execution creditor of a lunatic who has an exe- 
 cution ill the hands of the slierill before the lu- 
 natic has been declared such, will not l)e inter- 
 fered with by injunction restiaining liini from 
 reali/ing under his writ, lu ri' ilnuil, "8 Chy. 
 457. 
 
 In a suit by an infant partner against his co- 
 partner prating for dissolution, receiver, re fer- 
 ciice, &c., after a d(ciee pro confesso, and dur- 
 ing the taking of the accounts — under an agree- 
 ment for a continuance of the partnership busi- 
 ness feir that puipost— certain eicelitejis of the 
 iiim eibtaiiiid judgments and executie ns at law 
 against the partner eif the iiilant, who was not 
 infeumeel of these proceedings until the sherifi' 
 hael seizcel anel was aljont to sell, the whole of 
 the jiai (neiship iiie)perty :— Held, (Jii Uieitiem for 
 injunctie)n, that the preiceedings at law were not 
 ■within the ]irovigions eit ];>.C>. c. V2',\, s. 8, and 
 that the sale slujidd be restiaineel — Held, also, 
 that the execution cicditois might be maile par- 
 ties for that purpose em motion simply. Ymniij 
 V. Ihdm; 29 Chy. 49. 
 
 A receiver was appointeel under the elecree in 
 this suit te) collect revenue, and, after paying 
 expenses, to pay the balaiiics into c(mrt, which 
 were to be jiaiel e)Ut e)n the icpoit eif the master 
 to the parties entitled as founil by him. S., 
 pursuant to advertisement for erc(litois, preiv- 
 ed his claim. The master had not made his 
 re^ieirt, P.y 44 Viet. e. (il, <>., the ilefcndants were 
 authoiized to }il( dgc the bonels eir ele ben ture stock 
 to be issued theieiineler, anel the iiroceeels were 
 to be paiel eiut on the eirder of C. ai;el F., who 
 were apjieiin'cil ciediteirs' trustees, in payment 
 of all mejuey necessary tei be p.uel tor the dia- 
 ehivrge of the receiver in this suit. An order of 
 
:U0 
 
 341 
 
 INJUNCTION. 
 
 342 
 
 court was made on the application'of the defen- 
 dants' <lischarging the receiver without provid- 
 ing for the payment of claimants who had proved 
 under the decree. The Act directed tliat all 
 wlio came under it should take fifty cents on 
 the dollar: — Held, that the position of affairs 
 having altered since the time at wliich 8. had 
 proved his claim, he was not bound tlierehy, 
 and should not be restrained from prosecuting 
 an action for his debt to recover the full amount, 
 if posf.ible. Lee\. Credit Vatky Jhiilwai/ Co., 
 29 VAiy. 480. 
 
 The defendant, as administratrix of her hus- 
 band, who lost his life by the foundering of a 
 steamer called the Waubuno, belonging to the 
 plaintiff's, on which he was a passenger, sued tiie 
 plaintifls to recover damages under K. S. (). c. 
 I'JS. The plaiiitill's, who claimed limited lial)i- 
 lity under '25 & '_'() Vict. e. (J.S, s. .54 (Imp.) Hied 
 a bill under the .Merchant Shipping Act, lsr)4, 
 17 & 18 Vict. c. 104, s. 514, (Imp.) to restrain 
 the action, and prayed that it might be deter- 
 mined by the court whether they werelial)le for 
 loss of life or merchandise, and, if so, for wiiat 
 amount, and the persons entitled thereto: — Held, 
 reversing the decree of Spragge, (_'., 2~ Chy. 34(), 
 that the Waubuno, not having been register-'d 
 under 17 & 18 Vict, c, 104, (Imp.) was not a 
 British ship witliin the meaning of that Act, by 
 virtue of the Statute of Canada ;i(') Vict. c. 1'2S, 
 and therefore not entitled to take advantage of 
 the limitation clause ; aud that even if she were, 
 the plaintiffs were not entitleil to an injunction, 
 as they did not admit their liability for dauKigcs 
 to the extent mentioned in the Act, and bring 
 into court or offer to secuie the amount. Tin- 
 O'corijiuii Hail Trauxpurlalwii Coiiipdiiy v. Fii/ier, 
 5 A. R. 383.' 
 
 See also, Fiiui v. Dominion Saviii/js cD Iiircs/.- 
 meut Socittij, G A. K. '20. 
 
 III. To Restrain CuTnN(i and Rejiovixcj 
 TiJinEK. 
 
 Held, under the circumstances of tliis case, 
 that the vendor jf standing timber was entitled 
 to an injunction to prevent the cutting and re- 
 moving of timber by the vendee until payment 
 of the agree'l price. See Samiiifrs v. Cook, 'IS 
 Chy. 171). 
 
 IV. Committing or Continitino Nuisances. 
 
 1. Offaisivv Tnule. 
 
 The defendant was engaged in making boilers 
 and giis receivers, in the nninufacture of which 
 it was necessary to join together pieces (,f iron, 
 about an inch thick, by riveting, which produced 
 noises, continuing from seven in the morning 
 until six o'clock at night, rendering the occupa- 
 tion of the house of the plaintiff's wife, which 
 was only lifteen feet distant, and in which they 
 lived, almost impossil)le and seriously interfered 
 with her health. Upon a bill liled by the plain- 
 tiff', Proudfoot, V. C, '28 Chy. 4(il, granted an 
 interlocutory injunction restraining tiie defend- 
 ant from continuing the boiler-making in such a 
 nianuer as to be a nuisance to the plaintiff aud 
 liis premises :— Held, reversing this decree, that 
 the wife was the proper person to lile tlie Ijill, 
 for as injury to property is the ground of juris- 
 diction in eases of nuisance, the owner of the 
 
 property is the proper party to complain. Qu;i. re, 
 whether the husband had any title in the land, 
 and whether his occupancy with his wife w as 
 j more than permissive on her part. Anaiiplication 
 nuide Ijy counsel to add the wife as a iiiirty, in 
 order to meet the difficulty, authority having 
 been given by her, was refused on the ground 
 that the suit was not merely, not priii)crly con- 
 stituted, but tluit the husband having no locus 
 standi, the suit hail no proper existence at all, 
 and another i)erson who had the right could not 
 be substituted for one wiio had not the right to 
 institute the [iroceedings : — Held, also, that if 
 the suit hail been properly constituted, tlie couit 
 Would not have interfered with the discietion of 
 I'roudfoot, V. C. in granting the interlocutory 
 injunction. Hathaway v. Dohj, G A. R. '264. 
 
 2. JHnhwuiix and Bailwai/s. 
 
 An information alleged that the International 
 Rridge Comp.my had constructed and completed 
 the said bridge, and the same was adapted to 
 the pa.ssage of railway trains and foot pissengers; 
 but that the defendants prevented "persons on 
 foot to cross the said bridge, although willii.g 
 and offering to pay the lawful tolls provided by 
 the said Act," and that the defendants intention 
 was "to maintain the said bridge as a r;iilway 
 bridge only, and not as a carriage or foot bridge ; " 
 and prayed an injunction to restrain the ilefen- 
 ilants "from preventing Her Majesty's subjects 
 from using the foot- way of the said bridge at 
 their will and pleasure on the payment of law- 
 ful tolls," or preventing them from using in the 
 same manner the foot-paths thereof. The infor- 
 mation also prayed the removal of the bridge in 
 the event of its not being constructed in the 
 manner contemplated in the Act of Incorporation. 
 In view of the fact that a large sum of money 
 had been expended in the construction of the 
 bridge so far as it was built, and whicli had l)een 
 so built in accordance with the provisions of 
 their Act of Incorporation, the court (Blake, V. C. ) 
 allowed a denuirrer for want of eipiity; hut, in 
 so far as the inforn)ation shewed an unlawful ex- 
 clusion of the public from the use of tile foot- 
 paths of the l)riilge,the denuirrer was overruled ; 
 l)iit, under the circumstances, without costs to 
 either party. To such an information a railway 
 coinpauy who had become lessees of the l)ridge 
 were held to be proper parties. Tlii' A/lnriicii- 
 (liiurol v. 'I'lif Inti'riMlional Bridijc. Co., '27 Chy. 
 37. 
 
 The diifendants were a company incorporated 
 by the Dominion Parliament for the construction 
 of a bridge from Canada to the United States, 
 across the Niagara river, wliich was to be as well 
 for the passage of persons on foot, and in car- 
 riages, and otherwise, as for the passage of rail- 
 way trains. The company completed the bridge 
 for railway purpo.ses only. The time limited by 
 the charter for the comiiletion of the work hav- 
 ing elapsed, an information was filed seeking to 
 restrain the use of the bridge l)y a railway com- 
 pany to which the bridge had been leased, until 
 put i;ito condition for ordinary traffic, or for the 
 removal of the bridge as a nuisance, and to com- 
 pel permission of its use by foot passengers on. 
 payment of the statutory tolls. The bridge 
 owing, it is said, to engineering difficulties, could 
 uot be adapted to the use of carriages and foot 
 
343 
 
 INJUNCTION. 
 
 344 
 
 Hi*. 
 
 fit 
 
 Mitt. 
 
 
 passcngprs : — HpM. rovorsing the judgiTient of 
 Spvng^ic, C, 28 Cliy- 'ir), tliiit the nliaiKloiimrnt 
 of tliiit jiortidii of the work vehitiiig to foot pas- 
 SL'iigcr.s anil taniiigcs was not a jmlilic miiwiiiia', 
 anil the Act of iiK-orjioiation was not a eontraiit 
 vith the jmlilic, hut nuroly gave cnnilitional 
 poweiH ercating correlative ihities. and was jier- 
 nii.-isi\e ; anil that s]ieciHe pcrfoiniancc thereof 
 voulil not he cnforceil. AttoriKi/ (Uiicral v. In- 
 icniiiliutid/ /iri'li/f Co., A. K. 537. 
 
 Jleld, that the Attorney-General for Ontario, as 
 rejiresenting only a limited ])<)rtion of the iinhlie 
 with whom, if at all, such contract existed, had 
 no locus standi. The Mork heingone \viihii> the 
 jurisdiction of the parliamentof C'a.iahi, t'lat jiar- 
 liainent, iiresuniahly v ilh the knowledge of the 
 state of the hriilge. allowed debentures to lie is- 
 sued ujion it : — Held, u)ion this ground also the 
 Attorney-(ieiieial of ( hitario \^as not tlie proper 
 party to tile the information, //i. 
 
 field, also, that as the liridge extended beyond 
 the limits of the Province, part only being tlierc- 
 in, it would lie unavailing for the court to give 
 the ]uiblic the right to pass over th.it ])'irt of the 
 bridge oidy wliiih was within its jurisdiction ; 
 and for this reason also, the court would not in- 
 terfere. /I). 
 
 A municipality may file a bill to compel a rail- 
 way com|)any to ]iut streets and iiighway im- 
 properly ti a versed liy their line of railway in good 
 rejiair, and will not be restricted to ])roceeding 
 by indictment or information. Ftnthni Falls v. 
 Vh-tuvUt n. ir. Co., 2!» Chy. 4. 
 
 The plaintill', a municipal corporation, filed .a 
 bill seeking to restrain the defendants, a r/iilway 
 company, from trespassing by running their 
 track .along one of the streets of the nninicipal- 
 ity without the consent theieof, thus impeding 
 truliie, in contravention of the Itailway .Act C. 
 S. C. e. (■)(!, s. 1-2, sub-s. 1 :— Held, that by virtue 
 of the Municipal Act there is such power of man- 
 agement, control, itc, bestowed upon munici- 
 palities, .-ind such a responsibility cast >ipon them 
 as to justify them in intervening on behalf of the 
 inhabitants for the prcscp-ation of their rikdits. 
 Jh. 
 
 Semble, but for the language used in Ouolph v. 
 Tlie Canada Comjiany, 4 Cliy. ()."(!, the proper 
 frame of the suit would have been by Way of 
 information in the name of the Attorney-General 
 with the corporation as relators. lb. 
 
 V. To Restrain Trespass. 
 
 The Ontario, Sinicop, and Huron Railway Com- 
 pany, (aftin-wards changed to "The Northern 
 Eailway of ('anaila,") in the course of the con- 
 struction of their roadway, acting in assumed 
 and alleged pursuani.'e of the i>owers conferred 
 on the company by its charter, entered upon and 
 took possession of certain government lands held 
 by the principal olHcers of Her Majesty's Ord- 
 nance forordiiance purposes,anil proceeded to con- 
 struct their road thereon. Afterwards negotia- 
 tions were opened between the company and the 
 pricijial oilicers for acquiring such right of way, 
 m the course of wliieh numerous letters passed 
 between the parties and between the several de- 
 partments connected with the ordn inco dejiart- 
 nient from wliiuh it appeared that the parties 
 
 ' concerned had nrrivcfl at the conclusion that the 
 j company were acting within their statutory 
 jKiwers, and that all the dei)artment could re- 
 I fjuire was, compen-sation for the land taken, 
 I Subseijuently all these lands were, by the Im 
 perial government ceded to the government of 
 Caiuida, and in the year 187u it was ascertained 
 that the sum for which the government held a 
 lien ui)on the road amounted to about 1'(!(10,000; 
 and by an Act of the Legislature of that year 
 that elann was compromised by the government 
 for £100,000 sterling, which was paid. In the 
 year 185(5 or 1857, this company agreed with 
 the fJrand Trunk Railway Company for the 
 use of a portion of this laud for the purposes of 
 the line of the latter comjiany, who it was shewn 
 had entered u]ion and continued in the use of this 
 land until lS7i», when the Credit Valley Itailway 
 Com])any, with a view of obtaining an entrance 
 into the city of Toronto, entered ujion this tract 
 of land, and were proceeding to "construct their 
 I line of ro;ul thereon. Upon a bill filed by the 
 j (h-and Trunk Railway ( 'ompany an int"rlocutory 
 I injunction was granted to restrain t e further 
 j con.struction of the Credit Valley Kai lay, until 
 the hearing, when the injunction was made 
 perpetual, the court being of opinion that the 
 Northern Railway Conijiany, under their deal- 
 ings with the I'xiard of Ordnance, and under the 
 various statutory enactments appearing in the 
 ease, had acquired an absolute title to the land 
 in (jiiestion, free from any lien in respect 
 ther(M>f. The (1 rail f1 Tnml: R. W. Co.nfCuiada 
 V. The CniUt Vallri/ R. W. Co. Hal., 27 Chy. 232. 
 
 VI. To Restrain Expropriation of Land. 
 
 Where the spoci.il Act of a railway company 
 incorporated the clauses of the General Railway 
 Act relating to powers, plans, and surveys, and 
 lands and their valuation, and also authorized 
 the company from and out of the ores o))tained 
 along tiieir line of railway, to manufacture iron 
 and steel for their own use, and to acquir.-, no'niiif' 
 properties by purchase; and the coiapr v ■.uul 
 chosen a site for a station niton die 'an:' , ; :'"• 
 plaintiffs, covering a valuable mine of , ■^' .; 
 iron ore, and called upon the plain lii'r:, ;■> !i 
 trate, and theplaintiffs wereun\villin!; (r, p-ir' i; 
 the land : —Held, that the plaintiffs coui. .lOfc 
 obtain an injunction restraining the company 
 ! from expri)))riating the land in (piestion, even 
 I though it were conceded that the company knew 
 I of the mine, and that it was the property of the 
 I plaintiff's, for the Legislature had left the expro- 
 I priation clauses to their full effect, wdiich, in this 
 ! ( ountry, at least, enables the company to acquire 
 j the fee of the land. Abler, if it were proved 
 , that [lie company were acquiring the land not 
 ! for the purposes for which the powers were given, 
 ! but for some collateral olqect, as for example, 
 j with the object of afterwards selling it to a third 
 party. Seinble that, if it sliouhl afterwards ap- 
 pear that such a scheme was actually in contem- 
 ))lation, and had been carried out, means might 
 be found to frustrate it. Jcnkiiii I't a!, v. The 
 Cntral Ontario R. W. Co., 4 0. R., Chy. D. 593. 
 
 Semble, that the powers conferred on the coun- 
 ty judge under the Railway Act of Ontario, R. S. 
 (). c. 105, s. 20, subs. 23, of ordering iimnediats 
 possession, before arbitr.ition had, do not exclude 
 , the jurisdiction of this court to enjoin the taking 
 
344 
 
 345 
 
 INJUNCTION. 
 
 34G 
 
 iol; 
 
 of possession, if the coniiiauy is luakiiig usu of 
 its ijowcrs to attiiiii any object colLitcral to tluit 
 for wliicli it was iiicoriioiatfil ; but otlicrw isc it 
 is not within tho jurisdictiou of a juiko of this 
 coiii't to intcrfuio with an order of tliu county 
 judge, though granted ex parte, lb. i 
 
 VII. To Restrain I.NFRiN(iEMENT ok Tkade 
 Marks. 
 
 I 
 
 Tlie principle " on whicli tho court protects 
 trade marks is, tliat it will not permit a i)arty to 
 sell his own goods as thi^ goods of another ; a 
 party therefore will not be allowed to use names, 
 mark, letters, or other indicia, by wliieh he may 
 pass oil' his ow n goods to purchaseis as the manu- 
 facture of another." JJcColl v. 'J'/itiil, •J.SChy. 4S. 
 
 The plaintilV, a resident of New York, was 
 engaged in the manufacture and sale of paper 
 patterns, and under what he considered a pei- 
 mission fr<ini, or arrangement with tlie propri- 
 etors of an illustratetl paper called "Harper's 
 Bazaar," styled such patterns " Ba/aar J'at- 
 terns," which words he registered in the Unite ^ 
 States and in Canada as his trade mark, and foi 
 the purpose of extending his Inisiness in tins pro- 
 vince api)oiuted the defendant his agent for their 
 sale, who for some years acted in that capacity, 
 and suljsc(jiiently conunenced a like business in 
 his own name, calling his patterns by the same 
 name ; stating that tliey were nianutactured Ity 
 "A. M. Thcal," while those of the iilaintili' were 
 stated to be those of "James McC'all it Co."; tlie 
 defendant, however, using enveloi>cs of the same 
 colour anil size, lettered and numliered in precisely 
 tile same way, the <inly perceptible diti'erence 
 being in the name of the alleged agent, which, to 
 casual observers, would readily pass unnoticed. 
 Thereupim the plaintiil' filed a liill to restrain the 
 defendant from using the name " lia/.aar I'at- 
 terns," or from otlierw ise inducing the puljlie to 
 believe that the patterns sold by him weie those 
 inanutactnreil by the plaintiil'. The court (Blake, 
 V.C'.,) under the eireunistances, thought there 
 was not any exclusive right on the part of the 
 plaintiff to the use of that term ; but restrained 
 the defendant fiom using wrappers similar to 
 those of the plaintiil', or in any other way acting 
 in such a manner as to lead to the l)eliel that tlie 
 defemlant was selling the goods of the plaintiff. 
 The plaintiff, 1 aving failed in the main branch of 
 the relief sought — the use of the word "ISazaar" 
 — this relief was granted, without costs. Jli. 
 
 IX. BuEAOiiES OF Covenants or Aoreements. 
 
 The owner of real estate in ctl'ecting a sale of 
 a portion thereof covenanted with tliu purchaser 
 that lie would retain a certain square unbuilt 
 upon, with the exception of one residence with 
 the necessary outbuildings including porter's 
 lodge ; the purchaser on his part covenanting 
 that he oi' his assigns would not allow any busi- 
 ness of a public nature, such as a tavern, requir- 
 ing a licciise to make it allowable in the eye of 
 the law, to be carried on upon the portion con- 
 veyed to him. A bill was filed alleging that the 
 vendor and the defendant E. W\, who resided 
 with him, were in violation of the covenant erect- 
 ing a house upon such square not within the ex- 
 ception ill the covenant. The bill set forth the 
 
 dimensions of the s(|uare, and alleged that the 
 same was particularly shewn ami delineated ou 
 the map ol the city of 'i'oidiito pulilished in 1S57 
 and was situated between certain nanieil streets : 
 — Held, on demurrer for want of eijiiity, that the 
 sijuare was pointed out with sullicieiit distinct- 
 ness, and the fact tiiat it comprised aiioiit si.\: 
 acres of land while the portion onveyed to the 
 purchaser was about one-foui th of an acre only, 
 was not such a ground of hardship as « oiihl pre- 
 vent the court from interfering by injunction to 
 restrain the breach of covenant, and II. \V. being 
 joine<l with the vendor in the erection of thu 
 house, she could not be heard to say hlie had not 
 notice of the covenant, and the demurrer waa 
 overruled with costs. I'ltiiKniK/IiiKl v. y)rii}Miii 
 el a/., 28 Chy. 485. See .V. ('., i O. K. 349. 
 
 Where the defendants, a railway company, 
 through tlieir riglit of way agent, purchased cer- 
 tain land for the railway from the plaintiil', and 
 verbally agreed with him at the time to make 
 and maintain certain over and under crossings 
 across the railway to be liuilt on the land so 
 ]iurchascd, whereupon the iilaintilf conveyed 
 the land to them, for a less sum than he other- 
 \ ise Would have done, and for more than ten 
 _\ ears the defendants maintained the cros.siiigs 
 as agreed, Imt afterwanls caused some to be tilled 
 up or obstructed: — Held, that, wlntiier the 
 agent had autliority to make such an agreenn'iit 
 or not, the plaintiil' was entitled to ilamages and 
 an injunction to restrain the defendants from 
 interfering with the crossing, for the company 
 had recognized the agreement,;\nd adeipiate com- 
 pensation could not be given to the plaintiil' in 
 damages, and, mmeovei', farm crossings, when 
 once made liy a railway company, must, under 
 C. S C. c. (j(), s. i;{ et seij., which was incorpo- 
 rateil in the defendants' charter, be maintained 
 by it, and this indipendently of any agreement 
 for permanent maintenance, although it is other- 
 wise as to stations. C/o((M' v. Caiitubi SouIIk rn 
 /;. II'. Co,, 4 0. R., Chy. 1). -28. 
 
 X. Bktween Landloiu) axd Tenant. 
 
 The plaintiil', in consideration of !?'2.") ])aid by 
 defendant, executed in his fav(Uir a lease of a 
 small plot of land at a yearly rent of one cent if 
 demanded, with the right on the part of the 
 defendant to remove all buildings at .my time 
 during the lease. The lease contained no cove- 
 nant on the ])art of the lessee other than those to 
 pay rent and to pay taxes, and it was silent as to 
 any right on the part of the lessee to bore for oil : 
 — Held, that prima facie, the lessee had not the 
 right to bore tor oil, and having done so and 
 commenced operations in pumping crude oil, an 
 injunction was granted to restrain the further 
 renioN-al of oil from the premises until the hear- 
 ing of the cause. Lanccji v. JohnMuti, '2!t Chy. ((7. 
 
 To prevent reir.oval of fixtures. .See Dickson 
 V. HunUr, 29 Chy. 73, p. 283. 
 
 XI, To McNiciPAL Corporations, 
 
 Where, on the petition of the plaintifT and 
 other rat'.payers, a township corporat on had 
 passed a by-law for the construction of the B 
 drain, and the assessment of the Linda to be 
 benefited thereby, part of which the iilaintiff 
 owned, but the drain had not been completed, 
 
347 
 
 INJUNCTION. 
 
 348 
 
 •aiC 
 
 
 tlunigll a rcjisoniiMi' tiinr liad cl.'ipHpd, aiul ii 
 jifiltioii (if the in'ii]cy'"= nsscsscil liiul hwu iijiplieil 
 ui"iii a certain otliur drain, not niontionuil in tlu' 
 petitinii, In tlic ivpoi't of tlif pulilic land surveyor 
 mailc pursuant to K. S. (I. c 174, s. i\'2'.K or in 
 the said liy-lavv, and of no valnc to tliu said peti- 
 tioners : — llelil, that the plaintill' «as entitled to 
 an o"der eiimiiellinf^ t]n: eorp<piation to eoniphite 
 the Ii drain aeeordin^' to the liydaw, to an in- 
 jnnction to restrain further misapplieation of tlie 
 moneys assessed, and to an areount tiiereof, for 
 til it the hydaw erisitud a trnst vvhicli had been 
 violated : — Meld, also, that the plaintill' was en- 
 titleil toniaintain the aetion without theattorncy- 
 general. Sni'illi v. '/Vc Cnriinriifitiii i if I he Tau-ii- 
 slilp (,/ l!,il,hjl,, .S (>. Ii., Chy. \>. 40.'). 
 
 Held, alsn, that the faet that the moneys so 
 assessed, were so diverted jmrsuant to a resolu- 
 tion of the conneil, passed in aceonlance with a 
 (ii'ondse inaile to eertain of the pt^titioners for the 
 U diMiii, who signe<l sueh |ietition and suhniitted 
 to assessment on th(-' faith of such promi.se, was 
 no jnstihcation of such diversion ; — Hehl, lastly, 
 that this was not a ease for arliitration, or, at all 
 events, not a ease in which the ]ilaintitl' was 
 bound to proceed in thai manner. Hi. 
 
 the River Severn, whoi'c it leaves the lake, and 
 to lie in a basin alcinj,'side a wharf at Washago. 
 The defen<lants, in extending their line of rail- 
 way, eonstrni'fed a bridge across the river, which 
 completc^ly obstrnete<l the entrance, and caused, 
 it was alleged, special damage to the plaintill', 
 who was obliged to moor his boat in a basin on 
 the lake side of the briilge. which was somewhat 
 too small for its intended jinriioses. Some cor- 
 respondence took place M'hili' the bi-iilge was in 
 course of construction, by the [ilaintill'peisonally, 
 and thiough his solicitor with the defendants' 
 general manager, in the nature of protests, but 
 the bridge had been in nse for several years with- 
 ont action on the part of the plaintilf, when a l)ill 
 was tiled, praying that it might be declanid a 
 iniisance, and that the defendants might l)e or- 
 dered to abate it : — Held, that by the delay in 
 taking action, and otheiwise, there had been 
 nne(|uivocal ac(piieseence in the action of the de- 
 fendants, and the bill was therefore dismissed, 
 with costs. Saii.'iDn v. 'J'/ic yortliuni UaUwaii, 
 •-"J Chy. 450. 
 
 Krloiilimj find Coiifiniiitiij. 
 
 XTTT. Otiif.r Casks. 
 
 A notice of motion for partition hn-ingbeen 
 served, the ]>laintitV moved for an injunction re- 
 straini?ig tlie defendant from collecting rents 
 and lor a receiver. It a])peared that the defend- 
 ant was a stranger whose right to be in posses- 
 sion was deni(!d: — Held that no relief could be 
 liad aL'ainst him without bill tiled. Yoniig v. 
 U'ri'jii/. 8 P. n. IDS. ^ make. 
 
 ^\'llcl'e the defendant I'aiscil the height of a 
 party wall beyond that of the building of the 
 plain titV, the adjoining owner, without the hit- 
 ter's consent ami subse(iuently opened a win- 
 dow through the said wall so raised as to 
 overlook the plaintitV's premises: — Held, that by 
 piercing the window clefendant had distinctly 
 given notice that ho ceased to regard the wall 
 as a |iarty wall, that it was an unauthorized 
 user of the party wall and that plaiiititf was en- 
 titled to an injunction to lestrain the further 
 eontinuance of such window. Spranli- v. Strat- 
 ford, 1 O. K., Chy. 1). 33"). 
 
 .VIV. Partiks to Arpi.tcATioNs For. 
 
 1. Wifr. 
 
 Wife's property. See Ifatfiairrii/ v, Doig, 6 
 A. K. -204, p. .342. 
 
 '2. Addhxj PartkK. 
 
 After decree a party defendant may be added 
 for the purposes of an injunction on motion 
 merely. See Yinuuj v. Ilidicr, '29 Chy. 49 ; Pe- 
 ti-rkiii v. Macjarlane, lb. 53, note, p. 340. 
 
 XV. Practice. 
 
 1. Delay in Application for. 
 
 The plaintiff was owner of a steam vessel on 
 Lake Cfouchiching, and accustomed to run into 
 
 On a motion to continue an injunction the 
 defendant may bring forward such facts as he 
 might if he were moving to dissolve the injunc- 
 tion, and may shew suppression of facts by the 
 plaintill' as a ground for dissolving it, and may 
 thereupon move to dissolve it. J/i/iien ct nl v. 
 Fl<her ,t at., 4 O. K., (l B. IJ. (iO. 
 
 I The plaintill's individually wore members of 
 the Master Plasterers" Association and the de- 
 • fondants individually were members of the ( >per- 
 lative IMasterei's' Association. The plaintill's did 
 I not by their writ state in what character they 
 sued ; but by their alHdavits tiled professed to 
 represent their asso>^'iation, and joined the de- 
 fendants as representing the operative associa- 
 tion. Scune of the defendants by throats, intim- 
 idation, and violence, prevented one man, who 
 had oontraetcd to work for one of the plain- 
 tifl's, from fultilling his contract, and induced 
 ^ him to leave Toronto, where he had been hired 
 to wcnk, whereby his master sulFoi'ed injury to 
 his business : — Held, that this entitled the mas- 
 ter to an injunction restraining these defendants 
 from so interfering with his servants. Jt ap- 
 peared that previous to the intimidation four 
 workmen had struck work with one \\'., a mem- 
 ber of the plaintill's' association, because W. 
 had refused to pay one of his workmen the w.agcs 
 demanded for him by them. Thereupon the 
 plaintill's' association passed a resolution impos- 
 ing a line on any of its members who should 
 employ the four striking workmen, and commu- 
 nicated this to the defendants" association. The 
 latter demanded the rescission of the resolution, 
 and notified the plaintiffs' association that in 
 default the workmen would strike. The resolu- 
 tion was not I'oscinded and the workmen struck. 
 The intimidation complained of by tlie plaintiffs 
 followed as a consequence :— Held, that the de- 
 fendants, by shewing the fact of the resolution 
 of the plaintiffs' association, which the plaintiffs 
 had not divulged on their motion e.x parte for 
 the injunction, which they now moved to con- 
 tinue, were entitled to have the injunction dis- 
 solved :— Held, also, upon the merits, that the 
 plaintiffs were not entitled to the injunctiou on 
 account of their resolution. Ih. 
 
.110 
 
 INNKEKPHR. 
 
 350 
 
 oil 
 
 h 
 
 An iiituiiiii iiijuiicthm will not ]io yrantml in 
 iiiil of a iil.iiiitiir, to |iri;s.ii'V(! tlu; .r.ilijo'.'t in tttur ^ 
 of Ills action in statn ((iio long onon^h to iju il)lu 
 him to olitiiii tlio <li!jisi<)ii of an Appellate Court 
 n points aliua'ly iliiiiiclc I in otliui' irises, a^'ainst 
 is contention, in courts of lir.it instance. \Vi/lil 
 V. .l/c.lA(i/. ,•, 4 O. R., C!iy. \). 717. j 
 
 A motion liy tins plaintiiT" to eontinun an ox ' 
 parte injiiiU'tion was refusal, with costs, liut iit I 
 tiie sanu' tiiui; leivc wis ^ivi'u to aniM-ul thi' l)ill, I 
 iiuilanotlicriut-'M'lo Mitiry iiijini':tion wn i^TiUiteil 
 ex parte < )n the return of the motion to eontiniU' 
 the latter, it w is ol)je -teil tliat thi! (iosts of tlie ' 
 former nriti )U which li ul not he mi taxel weivi 
 irit jiaiil: -H(!M, tint tlio noii-]viyin 'ut was no 
 ohjection t) the m ition h.'iu,' pi'o a; vie 1 witli. 
 Tallin,- \: I lull, •JOdiiy. 101. ' ^ 
 
 The pr )|ioseil aniunilincnts ' ' the bill were set 
 out siihst lutially in tlie or.lei' tor tiic injunetioa, 
 w;iic!i was serve 1 : —llelil, that, as the ilefeii- 
 (lint hail tlierehy notice of the prop )seil anunil- 
 lueuts, the olijc'tion that the amjinlc'l hill iia^l 
 
 nut heen serveil w.is notontitleil to prevail. Ih. 
 
 1 
 Where there app -ire 1 to l»p .a aub-it inti il ' 
 matter to ho tried and no irrepira))le injury 
 would he done by jireservin'; the subject mattei' 
 of the suit in medio, an injunction restrainini,' 
 tlie defendant fi'om dealing with it was continued 
 to the hearini'. ///. 
 
 .3. Othn- Cii^ps. 
 
 On nioriuLj for a writ of sequestration for 
 breach of an injunction two clear d ivs notice of 
 motion is su;li::ient. On >h- v. CrclU f^dlln/ /,'. W. 
 Co., S P. !!. 1()7. -Blake. 
 
 An interim injunction was granted, without 
 going into the ease, in tei'uis of an undertaking 
 given by tile defendants upon a prior return of 
 the motion, tliat notliin^ should be done in tlie 
 m: mtime. ( )n settling the minuti^s tin; Ite^'istrar 
 refused to eonijily witli the re [Uest of tlie defen- 
 dants, by inserting an undei'taking on the part 
 of the plaintilFs that tlie property be retained in 
 the same plight and conilition as at the date of 
 the order. A motion wis m a Ic to v i>'y t!i i min- 
 utes by inserting such an undertaking: -llidd, 
 that though the undertaking might liive b;en 
 properly asked for on the motion rs a condition 
 of granting the injunition, it could not n:)\v bj 
 exacted, as tlie olFoct woiild bj to reverse or 
 alter the ru'iler which had liuen m i^le by arrange- 
 ment of the parties. As a misunderstanding 
 seemed to have arisen, however, the injunction 
 was stayed for ten days to allow a subst lutivo 
 motion to bo m ile for an injunction restraining 
 the plaintilFs from <loing anything ilotriment il to 
 the property pending the interim iniuiiction. 
 Hoiulrk V. iimltii, 2!) Chy. 423. 
 
 Section 27 of the Cimrt of Appeal Act, R. S. O. 
 c. 3S, does not apply to proceedings by injunc- 
 tion, whether the writ has been issued before or 
 after decree in the cause. lUcLareii v. Cald- 
 well, 29 Chy. 438. 
 
 XVI. Inter r.ncrrouY I^.tttxction. 
 
 The plaintiff, who claimed the exclusive user 
 of certain streams flowing through his lauds, 
 which right the defendants denied, obtained an 
 
 interlocutoiy injunction I'ostraiiiing the clefeiid- 
 ants from iniug his iin ir iveni 'Uts thereon for 
 tlo iting ilown their logs, up )n tlie nsu d under- 
 taking to piy any d iin i^'.'s siist line 1 tliereby : — 
 Held, rev.!i sing the or ler of I'loii U'o it, V. C, 
 Ann nir, .T , dissenting, tint tlie [i! lintiT was not 
 entitled to an interlocutory injunetii n, a' it was 
 not shewn that irriMiic ti ilih^ dun ige " .iilil re- 
 sult from refusing it, or that the bil inee of in- 
 conveiiieir.'e w.is in his f ivour. Ileui irks as to the 
 gciural prill lipleson which intei-locutory injunc- 
 ti ins siiould be granted or refused. M'Lann v. 
 (JihlnyU Hal, 3 A. R. 3;!3. 
 
 The plainti'l' an 1 otliers, councillors of the 
 town of I'etrolia, atteii led ii inM^ting of the 
 council on the .'ith April. They were aiiseiit at 
 the next in leting ciilh^ 1 for an ( held on the 31st 
 .May and tlieiiei;fnrward," withnit authorization, 
 till the 7tli of. filly, w!ieii, at a inviting of the 
 cMiincil. a resolution ile glaring their sc its vacant 
 and ordering a new eliv;ti iii was put, and an 
 anieu liiunt to refiu' tlu! mitter to the t nvn soli- 
 citor was lost ; whereiip in the disseiditiiits left 
 the room, in e;uisei|iieii.'.e of w!ii''li t'lerc was no 
 quorum, when the original in ition w is put and 
 carried : — HcM, (l| tint t!ie thriie in inl-lis should 
 be connt(vl from the 31st \1 i,y. bjiiij; the liivst 
 meeting that the plaiiitiU's had not attended ; and 
 that the resolution was therefore void, as well 
 as on the ground that thert! wis no n'loriim pre- 
 sent wlieii it was p isse I ; (2) tint t'le co'.irt had 
 jurisdiction to untertain a in itioii for an injunc- 
 tion rcstr :iini:i_; tlie il if(\n I iiifs from intji'f.'ring 
 with the iiliintilFs in the excreis j of th .'ir ofli ;ial 
 duties, and that the injun ^tioii might be aw.ird- 
 ed upon an iiiterlo :utory appli 'atioii. M'-arnt 
 
 V. 7'//.' n 
 
 ori) iriv.i. 
 
 m of th/', Tjwii lit Pi:lnil!'i, 28 
 
 Chy. 08. 
 
 Upon a conviction for a forcible ontry an order 
 for restitution is usually aw.ir lei in favour of 
 the pirty dispossessed, irrespective of the ijuos- 
 tion of titli!, but where redress is sought by a 
 civil action thc^ title of the pi lintityinist bi; con- 
 sidered, and the court will ii it geiierilly inves- 
 tigate it up 111 in interlocutory pro, 'ec ling, siieli 
 as an applicition for an intirlo Mitorv injiiii ;tion. 
 T/f. T>r>ii''< n, ■■■in:,, I an I .Wil'hf/ fh. v. «/'/X-'. 
 2 0. R., Chy. D. 17.'). 
 
 The court may intiu-ferc by mandatory injunc- 
 tion on an interlocutory applierition, but the right 
 must bo very clear indeed. Wiiero there are con- 
 liicting claiinaiits to the position of pivsidont of 
 a company, and ono claimant takes forcible 
 possession of the company's promises, the other 
 claimant, at all events when he is at the time 
 the acting president, can bring an action to re- 
 strain him ill the name of the company, though 
 it be uncertain who is the rightful president. 
 
 Sec Ha'hinnvi v. Dih,, (} A. R. 204, p. 342; 
 Wild V. M^iMa^'li',; 4 O. R. 717, p. 349. 
 
 XVII. CoN'TKMPT OF Injunction^. 
 
 Ml- Cord and Jmikiiis Case, 
 
 Sec FTi/iii-iv. Fishiii 
 4 0. R.'78, p. .37. 
 
 INNKEEPER. 
 
 See Taverns and Shops. 
 
351 
 
 INSURANCE. 
 
 3.J2 
 
 lN(iUi:sT. 
 
 Sec Coi!()Ni;it. 
 
 1 
 
 
 
 INSPECTION OF DOCUMENTS. 
 Sue Evidence. 
 
 INSURANCE. 
 FiHE Insuhanck. 
 
 1. Co/As o/( S/iick (ijt(r Siinjunmon of 
 
 License, 352. 
 
 2. Form a/ AjijtlictiHon; 352. 
 
 3. Aiilliurili/ and Duly of Aijint, 352. 
 
 4. Pdynitiil of J'lrmliiiiin, 354. 
 
 5. Inlnrim liecvliilH, 354. 
 
 6. /'oi-TO o/ Poliri/, 354. 
 
 7. In.turolile hilvrvnt, 354. 
 
 S. Conditions. J!(jirif( )dalivnn, Conceal- 
 mint, }]i(rriinly. 
 
 (a) Deicrijilion of Property on /"rc- 
 Vtixe-s, 355. 
 
 3. liectijifmij Mistake in Policy, 378. 
 
 4. (>//((-/• Omm, 378. 
 
 III. AC( IDENT A.s.SLli.VMi;, 3S0. 
 
 IV. MaIIINE iN.SUKA.NrE. 
 
 1. Instirid/le Interest, .381. 
 
 2. Condition)!, 381. 
 
 3. Seairorthiuiss, 382. 
 
 4. Aliaiidiiniiient and Loss, 382. 
 
 5. Jti -insuriuice, 383. 
 
 (). Loss o/ Freiijld, 3Si. 
 
 V. WlNDlMi Ui'lNHUKANCEC0MI'AME.S,384. 
 
 I. FlKE In.sikance. 
 1. C'((/Z.s ti;( Woi.'i' ((/<£*• Susjjcusion of License. 
 
 Stiitc'uiciit : Call on stock. Dcffuo; : I'lmt by 
 an order oi the IJuutciiant-CidVLi'uor ut' (Jiitai'io 
 in council, isaiicil under 4li Vict. c. 2."), the jilain- 
 tiUs' license had Ijeen and .still was susiicudcd, 
 whereby it became unlawful lor the idaintiU's to 
 do any lurther busiucbs in Ontaiio ; ;ind that the 
 calls sued tor were made for the puriiose of en- 
 aljling the jilaintills to carry on their business in 
 Ontario :- Held, on demurrer, that the defence 
 
 (b) Statiruent as to Title and Incum- \ slimild have alleged notice in the (.,uz<tli of the 
 
 Itraners, 357. suspension ol the license, pursuant to K. .S. 0. 
 
 (c) A^siunva'nt, Alienation. or IncumM- Y'^' ""■ •'*-'• /""^ f ^''\!- ~'\' «: ^' ''"''•f ''' 
 
 brancr of the Subject Insured or ^•*.'"' ;'"'^;>';l>"^'"t' ^ "« '^ 1"";"';, "!':, 1'",'".*^ ""* 
 
 ,1 /),/•,, .j-u "^ I havnii' been tuKcii, and : — Jlchl, tliat the defence 
 
 I'le i Ota t/, ooo, 1 i .. 1 1 1 ■ ■ ,■ II 
 
 ,,, ,, . ,' , , was good, tor that liimgiiig an action tor calls 
 
 (d) I'rior and Oiutiseqiunt Inaiirance, 
 
 35<J. 
 
 (e) Alti ration of Pnmises, Increase 
 o/ Ji'isk or Chantjt of Oectij/a- ] 
 lion, 300. 
 
 (f) Danger from Incendiarism, 361. 
 
 (g) Wil/nl Xeijlect to Save Property 
 
 Insured, 3li3. 
 
 9. Statutory Conditions. 
 
 was transacting liusmess ol insurance within the 
 meaning of the above Acts. Union firf Ins. Co. 
 V. Lyman, 40 Q. B. 471. 
 
 !See Sana- Plaintiji's v. Filzsimmons, and another 
 case, 32 C. 1'. 002, p. 150. 
 
 2. Form of Application. 
 
 In the application for insurance prejjared bj' 
 the company there was inserted, in V(!ry small 
 
 (a) Constilutio'iality and Application 
 
 oj Act, 303. I type, a notice that the estimated value of per- 
 
 (b) BeasonaUenesN of Conditions, 3G4. j sonal property and of each building to be insured 
 
 (c) Other Cases 'MT. "must be stated separately," kc, which had 
 
 I escaped the notice of the applicant, and such 
 10. A^o<Jce,.4ccoM;(<,a>it/Proo/'o/"Zo«s, 367. [separate valuations, &c., were not given. The 
 
 court being of opinion that although this provi- 
 sion might not have been framed in order to elude 
 observation, it was certaiidy calculated to elude 
 observation, refused to give the insurers the 1)ene- 
 fit of it, if under the circumstances it would have 
 operated in their favour. Greet v. Citizens Ins. 
 Co., 27 Chy. 121. See S. C. 5 A. R. 596. 
 
 51. Actions on Policies. 
 
 (a) Limitation of Time, 368. 
 
 (b) Pleading, 308. 
 
 (c) Reference to Arbitration, 309. 
 
 12. Insurance la/ or for Mortijcujee— liight 
 
 of Subrogation, 370. 
 
 13. Mutual Insurance Companies. 
 
 (a) Premium Notes and Assessmeiits, 
 
 372. 
 
 (b) Other Coses, 373. 
 
 14. Ee-insurance, 374. 
 II. Life Assurance. 
 
 1. Ivsiirable Interest, 375. 
 
 2. Overdue Premiums, 376. 
 
 3. A uthority and Duty of Agent, 
 
 The agent of an insurance company cannot, 
 without the express sanction of his principals, 
 grant an insurance in his own favour binding on 
 the company. And the same principle prevails 
 in the case of a second insurance, although the 
 prior policy had been granted with the express 
 sanction and approval of the company. White v. 
 The Lancashire Ins. Co., 27 Chy. 61. 
 
•ir,> 
 
 353 
 
 INSUllANCE. 
 
 354 
 
 Tlio defendants executed poliuics, ucknowlud^- 
 in^ the receipt of tlio preniiuniii for re-inHuraiat'H, 
 wliit'li their ngunt at St. Jolin iiad iicoeijtcd, mid 
 sent tlieni to liini for delivery, Imt lutcrwanls 
 licaring tliat a U)H8 hud occurred, and tiiat the 
 prciiiiunis liad never been paid, they inBtnu.tcil 
 liiiii not to deliver the policies. The plaintiU's 
 alleged that it was the cuBtoin of agents to give 
 eacli other credit for such premiums, and to Het- 
 tle at the end of the niontli, wlien the hahince, 
 if iiuy, was handed by one to the other; but no 
 knowledge by defendants of such a course of 
 denling, nor such a course of dealing on the part 
 of tlieir agents, was proved, and it was shewn 
 that their agents had no authority to re-insure. 
 
 except upon payment of the piviniuni: — Held, 
 atiirniing the decree of Blake, V. C. , 2(! C!hy. T)*!! , 
 that the defendants were not liable. Held, also. 
 
 thai, even if such a custom had been proved to 
 exist between local agents, it would not be bind- 
 ing on the company, unless authorized by it. 
 Held, also, that the defendants were not under 
 the circumstances bound by their adnnssion on 
 the policy of the receipt of the prennum. Xenos 
 v. Wickham, L. K. 2 H. L. 'SW>, distinguished. 
 Wentern Anniirance Co. v. Provincial iutt. Co., 5 
 A. R. 190. 
 
 All agent instructed to receive payment for Ids 
 principal, cannot as a general rule accept any- 
 tliuig but money : — Held, tlierefore, on this prin- 
 ciple, and also in view of K. S. O. c. lt)l, s. 34, 
 and of the fact that the renewal receipt in (pies- 
 tion in this case contained a notice that it would 
 not be valid unless dated and countersigned by 
 the agent on the day on which the money was 
 paid, that, where in consideration merely of a 
 setting oft' of debts as lietween the agent of an 
 iii.surance company and a policy holder, the for- 
 mer wrongfully (lelivered a renewal receipt to 
 the latter, the receipt did not bind the company, 
 and the policy lapsed. Frazer v. Gore District 
 Mutual Fire Jns. Co., 2 0. R., Chy. D. 416. 
 
 This was an action brought on an interim re- 
 ceipt, signed by one S., on agent for the respond- 
 ent company at L. One of the pleas was that S. 
 was not respondent's duly authorized agent, as 
 alleged. The general managers of the company 
 for the Province of Ontario had appointed, by a 
 letter, signed by them both, one vV . , as general 
 agent for the city of L. S. , the person by whonj 
 the interim receipt in the present case was signed, 
 was employed by W. to solicit applications, but 
 had no authority from, or correspondence with, 
 the head office of the company. Jn his evidence, 
 iS. said he was authorized by \V. to sign interim 
 receipts, and the jury found he was so authorized. 
 He also stated that W't., one of the joint general 
 managers, was informed that he (S.) issued in- 
 terim receipts, and that the former said he was 
 to be considered as W.'a agent. There was no 
 evidence that tho other general manager knew 
 what capacity S. was acting in :— Held, affirming 
 the judgment of the Court of Appeal for Ontario, 
 tliat W. had no power to delegate his functions, 
 and that S. had no authority to bind the re- 
 spondent company. Per Strong, J., the gen- 
 eral agents, being joint agents, could only bind 
 the respondent company by their joint con- 
 current acts, the appointment of S. as agent by 
 W't. without the concurrence of the other 
 general manager would have been insufficient. 
 Suuiinersv. The Commercial Union Insurance Co., 
 6 S. C. R. 19. 
 
 23 
 
 Assent to assignment. See McQueen v. Thi' 
 I'/iteiiix Mutual Fire Int. Co,, 4 S. C. K. G()0, p. 
 .•{.■)t). 
 
 Notice of other insurance. See BiUington v. 
 Frvcincial Ins. Co., o/ Canada, 3 S. C. R. 182, 
 p. 351), 
 
 ii.'thority to give time for payment of premi- 
 um, ^/ojlatt y. The Mutual Lti'e Assurance So- 
 cictij. 4£) (I B. 601. 
 
 See :tlso Sowdrn v. The Standard Fire fns. Co,, 
 5 A. il. 290, p. 3o(>; Klein v, Union Fire Int. Co. 
 Li. al. 3 0., R. 234, p. 371. 
 
 4. Payment of Premiumt. 
 
 The (ire occurred on the 13th of September. 
 On the 15th September, tho plaintiff, through 
 a solicitor, paid the amount of an overdue 
 insurance premium note to the defendants, 
 who were ignorant of the loss. On the 17th of 
 September, notice of loss was given to the defen- 
 dants, when they immediately returned the pre- 
 mium to the solicitor : — Held, that the payment 
 having been msule in fraud of the defendants, 
 could not avail the plaintiif. Sears v. The Ayri- 
 cultural Ins. Co, et al., 32 C. P. 585. 
 
 See Frazer v. Core District Mutual Fire Ins. 
 Co., 2 0. R. 416, p. 353; A'eill v. Union Mutual 
 Life Jns. Co., 7 A. R. 171, p. 378. 
 
 5. Intel im Receipts. 
 
 The plaintiff was insured by the defendants 
 under an interim receipt, which stated that it 
 was "subject to approval at the head office, and 
 to the conditions of the policy. Unless previ- 
 ously cancelled this receipt binds the company 
 for 30 days from the date hereof, and no longer. " 
 — Held, that the conditions of the policy applied 
 to the insurance during the 30 days, and includ- 
 ed any variations of the statutory conditions 
 adopted by the defendants. Compton v. The 
 Mercantile Ins. Co., 27 Chy. 334. 
 
 See Citizens Ins. Co. of Canada v. Parsons ; 
 Queen Ins. Co. v. Parsons, 7 App. Cas. 96, p. 303. 
 
 6. Form of Policy. 
 
 Necessity of seal to policy. See Wright v. 
 The London Life Ass. Co., 5 A. R. 218; .9. C. 
 suh nom. London Life Assurance Co, v. Wright. 
 5 S. C. R. 466, p. 380. 
 
 Printing of statutory conditions. May v. The- 
 Standard Fire Ins. Co., 5 A. R. 606, p. 366 ; 
 Citizens In.'i. Co. of Canada v. Parsons ; Queen 
 Ins. Co. V. Parsons, 7 App. Cas. 96, p. 363. 
 
 Qusere, whether the additional condition in 
 this case was so printed as to comply with the 
 statute. See Sands v. The Standard Ins. Co., 
 27 Chy. 167; 26 Chy. 116. 
 
 Omission to fill up blank in a condition. See 
 Sears v. The Agricultural Ins, Co, et al., 32 C. P. 
 586, p. 365. 
 
 7. Insurable Interest. 
 
 A vendor, who has agreed to sell for full value, 
 has nevertheless, pending the contract of sale, a 
 
355 
 
 iNsi'itAxcr:. 
 
 35G 
 
 •If 
 
 
 jx-rfput li^lit to iiiHiiri! tlm priiiii^c'H hdM. If 
 
 Hllrli II viHiiliir illNllli'H the |>ri'llliHi"<, ili'Mrl'ilijIi^' 
 tllI'MI IIH "IiIh," this is III) llllNI'c|ll'rHl lltlltiritl, for 
 
 licii'liiu; till' loiitnii t lie iiiiiiiiiiH tlic ic;;il nw iicr. 
 riio fuel cif tlio Vfiicli)!' iiisiiiiii^ iiiiilcr Hiii'li cir 
 ctiiiiMt 111 CM, Ik'Iiij^ iin ii,sMi;,'ini' ill liiiiikiii|iti y, 
 inivlo'M nil iJIHiTc'iii'i' fi'diii tlic ciisi' (if an oriliiiiry 
 Vdinliif h'i/l V. '/'/ii: CtlKditil Firr ilinl M'iriiif 
 Ins. (■„. I O, I!., ('hy. I). ;U|. 
 
 'I'lli' niilii'lliiiitH ),'!• illti'ii II tiri' |Milicy fii iiiii' 'I', 
 
 <m iliviTM liiiiMi?i;,'s mill tlirirciiiiti'iits fill' >',S.'JSO. 
 In liis written nppliiMtiiin T. ri'iircscntcil tli^itlio 
 Wiis the iiWM'r (if tiic liicniiscs, while lie liml 
 jinn-idUHly snld thclii tn S,, the icsiiiiMihiit, Hiili- 
 jcut t'l n riLjIit (if i'(i|ciii|iti(in, whiiii ri^'ht 'I', iit 
 the tiiiic (if th(! ii|iplii'iitiiin, IkhI nviiilnl liiiMMcIf 
 (if liy piiyiiii; li.nk tn S. ii piirt (if the innMcy ml- 
 viiiiii'd, Iciiviii;,' still (liKi t(i S. II Himi (if ."^I.TiKI, 
 .Suli.scipnnt to till.' iippli'iitidii, iiinl after shiiki 
 CorruHpdllileliee, tlm respeet ive interests (if 'I'. iiikI 
 S. in tlie |ii'(iperty weiu fully explaineil Vi tin! 
 aiipeiliint.s tlii-(ni;^li their iiL'ents. 'I'heiM upon ii 
 tl'aiist'el' I'dl' (tliu lUildunt lieilii,' ill lilaiilO was 
 lllieh' to S. Iiy '1'. itiid aeeejited iiy the appellants. 
 Tile iiitidii was f(ir .'j^It.'Jso, the aninMnt of insn- 
 ranei! on the lmil(liiiu;s and clV.'ets ; II dd, that 
 lit tlio tinu! (if till) iipplii atidii tur insnranee '1". 
 had an IiisiiimIiIu interest in the pruperty, and as 
 till: ap|)(dlants had lieeepted tile transfer lllinle Iiy 
 'r. td S., wliieli was intended Iiy all parties td Ik; 
 for iU.rilO, the ainount then du(! Iiy T. toS., tin; 
 latter was untitled to recdver the said sum (if 
 ifliSIO. .'lid. 'I'liat S. haviii;,' iki insnralile in- 
 turust ill tlio nidvalilfs, the transfer made td him 
 by 'I', was not siilliijieiit to vest ill liini T.'h. 
 rights under the poliey with re;,'ar(l td .said iiidV- 
 ables. Alt. 2t8iJ (J. »;. L. ('. The (i//,nr,i J./ri- 
 cultitriil /lis. Co. V. iSlieri(t(tu, f) H. ( '. It. 157. 
 
 Sou Chirk y. Tin' Smttish I iiipcr'ntl his. Ca,, 4 
 S. V. K. I'.lL', )i. .'Wl ; h'liiii V. Til,' Union Fiir 
 lim. Co., 3 0. K. '234, p. 371. 
 
 8. CimiHt'wns, Repreieiitntiniis, Concealment, War- 
 ran 1 1/. 
 
 (a) JJfscription of I'vopcrly nr Premisr.t. 
 
 Tho plaiiitiir, dosijrihiii;^ himself in the ajipli- 
 eatioii as a gnicer, and his stdio as Iieiiig used as 
 a groeur3', insured with defendants his .stock of 
 groceries and patent niedieines tliciein, and with- 
 out tlio knowledge or assent of tin: (lefcndantH 
 lialiitiially retailed liijnor tlicvo ; but the jury 
 fnuiid that the risk was not thereby iii(;reast:il : — 
 Held, that there was no misrepresentation or 
 coneealiiient of a material fact ; that in insuring 
 a "grocery," ilefendants knew that li(iuor might 
 be sold there; and that the plaintilf was entitled 
 to recover. Nichnliion v. I'lm-ni.r Ins. Co., 45 (i. 
 B. 359. (This case has been carried to appeal. ) 
 
 It was provided, by one of the conditions in 
 the policy sued on, that if any one should in- 
 sure his building or goods and cause tlio same to 
 be described otherwise than they really were, to 
 the prejudice of the comjiany, or should niiarop- 
 reseiit or omit to communicate any circumstance 
 which was material to bo made known to the 
 company in order to enable them to judge of the 
 risk, such insurance should bo void. The nlain- 
 tifi signed a printed form of aiiplicatiou in blar.u 
 for an insurance on a block of hve buildings, cii.i 
 told defendants' agent to make hia own meaaure- 
 
 niciits and ilcHcrip^ion. The agent lillcd up the 
 applieiition from . <:xaiiiinati(iii and diiigi'iiin 
 which he had made on ii previons occiiHion, and 
 In answer to the (picstion ; " Is thcii any other 
 fact I >r circi I instance a licet ing the risk w itii u hiih 
 it is Mcecssary that the company should Ih' made 
 IK (plainteil," replied, "No, it is a lirst-iIa.^H 
 building in every respect ; althdiigh one idol' 
 
 I Cd\ crs all, there is a sulid brick lire wall lictufcii 
 each Hliire. " The iipplicatimi contained an agree- 
 ment that if the agent of the c(ini|iaiiy lille(l up 
 the application, he should, in that case, be the 
 agent (if the applicant, and iidt of the conipany. 
 Ihere was not a solid lirieU wall b(:t\M'cn the 
 wldi'es, and the jury found that this was a mis. 
 (Ies.ii|itidn of a fact matciiiil to the risk : Held, 
 alliiiiiiii;,' the judgment (if the <,>iiecn's Iteneli. 41 
 
 , *i. Ii. '.15, tliat the plaiiitilV cdiild iKit reciiver. 
 
 , .Soinl, n V. 'Thi'Shiwhinl Firr Ins. Co. J) A. R. I'lHI. 
 
 Tile lirst statutory condition indorseii on a 
 I [lolicy pi'dvided that if the insured misdescrilied 
 his Imiidiiigs iir goods t(» thi: prejiidii'e of the 
 cdiiipaiiy, or misrepresented, or (uniltcil to c(im- 
 ! miiiiieate liny matci'ial eircuinstance, tlie iiisur- 
 .■ilice relating Iheretii slidiild lie vnid. TlicKecdiid 
 staliitdry eondilion provided that the policy "as 
 \ intended to be in iiccordance with the appliea- 
 tidii unless the cdiiipaiiy shduld point (uit the 
 diHercnee relied (in, witli a variation addeil tlicre- 
 , to, that such application, or any survey, plan or 
 I description of tlie property to be insured should 
 be cdiisidered a part (if the poliey and excry part 
 (if it a wananty by tlie insiireil, but that the 
 1 conipany woiild not dispute the correetimss of 
 any (lia,'raiii or plan prepared by its agent from 
 a pcisdiial iiis|icction. 'I he twentieth statutury 
 I cdiiiiitidii as varieil, prdvided that in case any 
 agent (if the cinnpaiiy tddk part in the prepara- 
 tion df the ,i|ipliealidii, he should, with the ex- 
 [ ceptidii alidve pi'dvided in case (if a diagram or 
 plan, be regarded in that work as the am'iit of 
 the aiiplicaiit. Iiy the applieatidli, whioh was 
 signed, not by the insured in person, but through 
 the agent of the c(iinpaiiy, the insured was re- 
 (piired to make known the existence of all build- 
 ings within KM) feet of the insured premises ; 
 and it appeared that the insured had oinitted to 
 make known the existence of a small building 
 I uijcd for storing coal oil, and material to be made 
 ' known, within such distance, but of the exist- 
 I eiice of which the a[)plicant was not at the time 
 aware. A diagram was made and tilled in by 
 the agent and signed by him in bis own name as 
 well as that of the ap|ilicaiit, which contaiiieil 
 no reference to this building. The diagram was 
 not made from a personal inspection at the time, 
 but from a jirevious inspection and the knowledge 
 thereby acipiired, as also an intimate knowledge 
 of the property, which he passed three times each 
 day, and the agent at the foot of the application 
 stated that he liad made a personal survey of the 
 risk : — Field, reversing the judgment of the court 
 below, 31 C. 1'. (>18, that under the conditions 
 and circumstances above set forth the in.sured 
 was relieved from the elfeet of his omission to 
 make known the existence of such coal oil shed ; 
 that the inspection by the agent need not be one 
 made for the pur(io8eof such insurance, provided 
 a ; or. nuil inapoetion did take place ; and that 
 nailer the facts and circuinstaneos appearing in 
 t,lie case the company could not disiiuto the cor- 
 reotneas of the answers given by the insured, 
 whether hia answers upon the application for in- 
 
 il 
 
367 
 
 INHURANrK. 
 
 3B8 
 
 HiirniK'n wpri' to 1h' trratcil nn w.irrnnticH or rv- 
 piTMiiit.itioiiM only. (Jiiiiiliiii V. T/if UiiioH lurt 
 Jus. («'., S A. li.'aTll. 
 
 (Ii) Slntfiiiriif iiH Id Til/i' (iiifl /nriniilinnirfii. 
 
 Ill MimwiT to llic (lUi'MtioiiH, "(1) All! tliu (H'u- 
 iiiiaiH iii'iii|iicil l>v owiic'i' or tiiiiiint'.' CJ) If liy 
 tfiniit, nivc iiiiiii' oi' owiirr." A party mM'kiii;; 
 to I'tlcct iui iiisiiiiiii''(i iij,'.iiiiHt fire iiiiHWcrcil ; ( h 
 Ti'innt :in li'> inliii,' liniiMi'. (•_') A|p|i!iiMnt." 
 Ah'l .'iiiotlH'r (|iii'Mtiiiii (the lit.li) w.iM : "lftli<; 
 iipiiiir.itit i.i til'.' owiirr of till' y li^i hiilMiti ; -Htiitii 
 till' \mIi|i' of tin; ImiMiii,' .-ui'l I ml ;" iiivl jii: .'in- 
 swiT.' 1 Sli'lO. Ill f i''t till' ;i[iiili''iint ili'I not own 
 till' liiiil, li.'iviii,:; :i !'■ m; of it wliii'h Irul only ii 
 sli'irt tliiii! to run, witli tin; ri:;lit to I'l'iii'ivu tin; 
 iMiiMiii.; till' Miiltji'i't of iiiriiir;ui<;i! ; -MiM, tlrit 
 tlii-i w iH Hii 'li II iiiisri'iiri'siMit itioii of tlir inti't'cst 
 of till' iipiili'aiit fis n^ii ii'i'i"! tliC! policy vojil un- 
 der till' tir.it of tin; Mtiitiit'iry coinlitioiiH. Coin})- 
 lim V. M<f:i„tile Iiii. Co., '>: Cliy. 33t. 
 
 'I'lir ]iliiiitiiranil lii-i lirotliiT, liciiv.' joint own- 
 ers nf liiiil wliicli their f.'itlier h;iil I'nnveyeil to 
 them, Hiilije"t to n iiiortL,';i,i,'o to ('., i,';ive a iiiort- 
 l{,i;;e to the father to Meenrc the l)alaMCe of piir- 
 eli IUI! uioiioy, till! father covenaMtitiLr to pay ('.'s 
 lii'irle;i;^'(!. (Jinler ail a^'reenii'iit with hin father 
 Hiei hnither, tin; iilaiiitill', who was a earpeiitei', 
 at \[\!i own t'X|ieime, liiiilt a il welliliir-hciusi' foi 
 liin own UMi', on a quarter of an acre of tin; I iinl, 
 the ni^'reement lieiii;,' that, if the lirothers hIioiiM 
 lint he alile to pay for the lainl, the pliiiitilV 
 shoiil'l have tin; InniMe as hi.-t own. The house 
 wiiH jilaeeil on lilocljs of wooil, ami was lieM hy 
 itH own wei^,'ht on them. The pl.iintitt', in his 
 applieatioii for iiisiiranee on the house atnl con- 
 tents, in answer to tin; ijin'stioii -"Title, held 
 in fee, or how?" answereil, "In fee;" and to 
 the i|iie3tioii — " liicnniliere'l or not? If y(;a, to 
 what aiMonnt — how iiincli land does iin;uiiil)iMiice 
 cover, and for wliat ))iir|iose erei;teil ' " Hi; an- 
 HWered, "None." Miit In; Ht'.ted to the agent 
 that there was on the land a inorti^aLre, l>nt notli- 
 iiij,' a>,'aiiist the house, wliicli he held in fee nniii- 
 cuMihered. 'J'ln;!'!; was ii eomlition on the |iolicy 
 that the inciunlirance slnmld he dis';loseil, aii'l 
 that the failure to do so would avoiil the polie /. 
 The verdict was for the plaintill: -(fi;ld, (Ar- 
 mour, J. dissentiiiLjU that the house wis not in- 
 sured as a chattel, hut as realty ; and that the 
 failure to disclose the incunihrance wis fatal. 
 Per Clam(;ron, ,1., that the honso was a lixture, 
 and auhjuot to the niortyige. Tlni coii'litiou 
 was, that in oase of any niisi'cpresent ition or 
 oinission to coniinnnicite ;iny in iterial circuiu- 
 staiicc, the insiiranco should he. of no force "in 
 respect to the property in regard to which the 
 misrepresentation or omission is made. " Per 
 Cimcron, J. The policy w.as avoided only as 
 to the inanr.anco on the house. The directors 
 passed a resolutiiui to p.ay the loss, in ignnranen 
 of the fact that the incumhrance cxist(;il, and 
 made an assessment to meet it, hut on discovery 
 rescinded this resolution :— Held, that the de- 
 fendants had not by the resolution waived their 
 right to set up the defence. Per Armour, J. 
 The house w.'is a chattel, and there \v,is nothing in 
 the application to estop the plaintilF from assert- 
 ing that it was not insured as part of the land. 
 Pltillipn V. The Oran'l Hirer Fitvme.r.i' Mutual 
 Fire Ins. Co., 46 Q. B. 334. 
 
 ' A (ire policy i-ontiined a condition, in nddi- 
 
 I Ijipll to tile st :itllt,lh|e eonditions, to tin! ell'e't 
 that if the prop 'i tv were aliniiatnl, or any tr.uiH- 
 fer or eliangn of titln oi'i'iiirid, or if it svcre in- 
 e;inil)ered liy inortu'atto, without the eomellt of 
 the eolilpany, or if tiic propertv hIioiiIiI he hivieil 
 upon Ull'ler proems of law, the piiliev shoiilil 
 e(;;isi!, Ill an-twer t't the iplestioii whether tllO 
 propertv WIS iiiort'^'H'^'ed, the assured iinsweniil 
 ••.^.■>,()(»l't to V. I,, it S. i:o." Tlicre w "le at tho 
 tiiiie. in fa ■(, two lii'irt'.' 1','es to that eonipmy, 
 on whii'li -Si'i, Mill wi;rii dun. Alti'r tin; |ioliey n 
 liiortg.i!,'e Was given t'lseeiin; endoriein 'iits, and 
 was iliM''har;.'i'd, Mini another was given hy the 
 plaiiitill' I'p his piirtners who retired liom the 
 linn, lint 1 he cmnp any was not appriscil of oithnr. 
 The jury ffmnd that tli ; repri'seiii,atioris as to in- 
 cnniliriuiees wi!ri' false, hut not made Iraild- 
 nleiitly, aii'l a ver'liet was entered for the de- 
 fi!iida'its : -II ild, that the repre e nt iti'iil as to 
 inenniliranee!; was a violation of tin; I'oiidition, 
 iiiid that the verdict was right. Per ilagarty, 
 {!. ij. Tlnni'^h that part of the c^nnlition as to 
 Icvyiiiu' might he unr.'asonalile (,") \. It. (!(),')), 
 tin; reiniiinler was not, and the condition wart 
 diviiilili;. 11'-/'/'/ V. Sta;vlnr'l liu. (J.i., :t O. K,, 
 
 g. Ii. i». 115. 
 
 See KIri,, ,'t ,il. V. T.'ir fiiinii Fir,' /in. Cii. H 
 id., 3 (). 11. 1.VU, p.37l , TIf Ottiiii'i .hjn-iiHaral 
 liH. dii. V. .Shi'ri'/iiji, 5 .S. ( '. !t. l.')7, |). Wt't, 
 
 (c)'.,4-'i.it,7n)He»', AUcii'itioii. iir liiriim''rnnci' of thf, 
 Siilijrct iiitiiri'l iir llir l'i)liri/. 
 
 ' lfr!if, that the usual covenant to insure cnii- 
 ■ t lined ill a iiiortga','o execut';d und'r tin; Act re- 
 j speeting Short Fornii of M irtgagcs, o|)i!ratcs as 
 I an eqnitahle assignment of the insurance when 
 i eir;i;t.!d. dri'^/ v. (Jili.'iH I in. <'<>. ; '//•• ■:l v. Itijijal 
 /lu. (Jii. r, A. 11. 5DI); 'j; (!liy. IJI. 
 
 I Hold, airirining the jii'lgini;iit of Proudfoot, 
 \V. O., 'JO Chy. II.-) that tin; fourth stitutory 
 I'onliti'iii docs not apply to an ali'Miation hy 
 ; w.iy of iii'irtgag;, hub onlv to an ahsoint' trans- 
 fer. S'vrU V. T/fSfiu'lti-l fin. C'l., '21 i 'hy. 107. 
 
 i The a))pelliiiit, being iinlebtud to et;rtain por- 
 sins aiil desiring to have his stock of goods in- 
 siirc'l, ap[ilied to the ;ig'!iits ol rjsponde'iits f.ir 
 insnr.inco to tlij amniiit of .':f2,()!)J for three 
 montlis, "loss if any tii be pay.ibic to his credi- 
 tors of whom (t. McK. is one ami .M 'M. & Co. 
 aresecoml." An interim receipt was issued by 
 the coiiip my, date 1 I'.lth of November, 1877, 
 ; which stated the insiir.ince to be ailbjci;t to the 
 j conditions cont.'iincd in and endorsed upon the 
 I priiitel form of ii'dii;y in use by the company, 
 ' one of which conditions (No. 4) stated, that if 
 I tho pro()i;rty insured shoull be assigned without 
 a written permission endorsed on the policy by 
 an agent of the company duly authorized for such 
 ]iurpose, the policy should be void. On the 2Stli 
 November the appellant tr.insferre'l the insured 
 property to the said (J. XfcK., in trust for his 
 creditors, the balance, if any, to be payable to 
 himself. I'he agent of the comp:iny was notified 
 of this transfer ami assented to it, stating that 
 no notice to the company was necessary, the 
 policy being made i)ayablo to the creditors. The 
 property w.is destroyed by tire on the l,5tli 
 January, 1878. The policy sued upon was dated 
 the I'ith Ueceinbor, 1877, but was not deli\'ered 
 until the morning after tho fire. By it the loss 
 
ii50 
 
 INSURANCE. 
 
 3G0 
 
 
 ( i 
 
 i 
 
 r::. 
 
 
 •was inmlc "[i.iyalilt; tn'O. McK. and Mc!Nr. & Co. 
 and otlurs as crcilitdi'.s, as tlieir iiiti rests may 
 aiipuar. " AltiT the tire the inK|ii'ctipr of the 
 coniiiaiiy wrote twice to MeK. ealling for proof 
 »)f loss: — Ilelil, reversing tlie judgment ot the 
 Court of Ajipeal for Ontario, 4 A. 1!. -JS!).- 
 thrt the notiei; of tlie trust assignment to tlie 
 company's agent was sutlieient, tli.it the eompany 
 must lie eonsidered as hav ing assented to sueh 
 assignment, and to have e.xeeuted the poliey witli 
 full knowledge of it ; and tliat sueh assignment 
 was not one eonteniiil.'ited hy tlie condition on the 
 jioliey. 2. '! hat the words "los.s jiay.ilile, if ;iny,to 
 (i. MeK. &('.," opei;it(!d to cnalile the resjioud- 
 ents, in fultiiiuent of tiiat covenant, to pay the 
 parties named ; hut as thej' had not paid them, 
 and the polii^y exjire.ssly stated the ajipellant to 
 he tlie person with v houi the contract and the 
 respondents' covenant w,-is made, the action for 
 a breach of that covenant, was properly brought 
 by him alone. MrQiitiii v. T/in I'ltunix Mutiuil 
 tire Ins. C<.., 4 8. O. K. UfiO. 
 
 See Mail v. The .Standard Fire /iin. Co., 5 A- 
 R. G05, p. ;!G(i. 
 
 (d) Prior and Sidi.ii'unt.nl. Iiixtirance.. 
 
 The plaintiff, desiring to effect further insur- 
 ance for two months on certain machinery, ajiplied 
 to defendants' company, tlirough one .S. , tlieir 
 agent at ]). , autliorized to receive applications, 
 accept premiums and issue interim receipts, valid 
 only for thirty days. He informed .S. that there 
 Were other insurances ou the property, l)Ut not 
 kuowing the amount that there was in the Liore 
 Mutual, requested him to ascertain it, and signed 
 the application partly in IjlaiiU, p.iidtlie preminiii 
 and obtained an interim receipt, valid only fur 
 thirty days. .S. failed to do what he iiroiuised 
 to do, and what plaiutill' had entrusted him to 
 do, and forwarded the application to the head 
 otKce at T., making no mention ol the insurance ; 
 in the Gore ^lutual. The euiiiinuiy accepted the 
 risk, and. in accordance \\ith tlieir practice, 
 where the risk extended only over a short [leriod, | 
 instead of a for.,.al pulicj', they issued a eertili- j 
 cate, which stated that the plaiutill was insured ■ 
 subject to all the eonditioiis of the eompany 's I 
 policies, of which he admitted cognizance, and j 
 that iu the event of loss it would lie replaced by i 
 a policy. The machinery was subse(|Uently de- | 
 stroyed by lire, after the thirty days, but within 
 the two months, and a policy was theiciiiion is- 
 sued, f'dorsed with the ordinary conditions, one 
 of which was that notices of all previous insu- 
 rances should be given to the company and en- 
 dorsed on the polic}', or otherwise acknowledged 
 by them in writing, or the policy should be of no 
 efifect ; and another was, that all notices for any 
 purpose must bo iu writing. The insurance iu 
 the (jiore ^lutual wa^ ii.it endorsed ou tiie [loliey : 
 — Held, that as the ajiplication in writing did not 
 contain a full and truthful statement of previous 
 insurances, the verbal notice to the agent of the 
 existing policy in the Gore Mutual, without stat- 
 ing the amount, was inoperative to bind the com- 
 pany ; the plaintitf was not enoitled to have the 
 poliey reformed by the endorsement of the (iore 
 Mutual poliey thereon, and could not recover. 
 liilliiigton V. Provincial Inn. Co., 'A 6. C. R. 182; 2 
 A. K. 158. 
 
 Held, upon the evidence set out in these eases, 
 tliat the policies were avoided by the nou -disclo- 
 
 sure of a pievious insurance. Grci't v. Cilizenii 
 /nn. Cii. Urn I V. lioijal Infi. Co., 5 A. \\., olKi. 
 
 The plaiutill', who was insured in the defen- 
 dants' company under a iioliey containing a con- 
 dition that the "company is not lialile * ' 
 if any subseijuent insurance is eHected in any 
 other company, unless and until the company 
 assent thereto by writing, signed by a duly au- 
 thorized agent, effected an insurance with the 
 Meicautilo Insurance Comiiaiiy, which was void 
 at their option on account of a similar condition, 
 the [lolicy with the defendant not having expired 
 as a matter of fact, though the plaintitf was led by 
 the agent of the other eompany to believe it had : 
 — field, allirming the judgment of the Quee.i's 
 Meiich, 44 Q. H. 4'JO, that the plaintiff could not 
 recover, for the insurance in the Mercantile ( 'om- 
 paiiy, being not void, but only voidable, was a 
 subse(|Uent insurance within the meaning of the 
 condition. Oaiithier y. Waii-.rlou Jlutitallns. Co., 
 
 : G A. K. 231. 
 
 i 
 
 [ The appellant sued upon a policy of insurance 
 made by the respondents on the 28th .April, 1877. 
 Uu the face of tlie policy it appeared that there 
 j was "fuitlirr insurance, .58,000,'' and the policy 
 had endorsed upon it the follow iug eoudition, 
 being statutory contlition No. 8, R. S. O., e. 102: 
 " 'i'he company is not liable for loss if there is 
 any prior insurance in any other compi.ny, unless 
 the company's assi:nt thereto appears herein or 
 is eiidoned hereon, nor if any siibseciuent insur- 
 ance is effected in any other company, unless 
 and until the conijiiiiiy assent thereto by writing 
 signed by a duly authorized agent." Among the 
 insurances, which formed a portion of the "fur- 
 ther insurance'' for .S'S.OOO ineiitioiied in the 
 ]iolicv, was one for 82,000 in the Westei'ii In- 
 surance ( 'onipary, which appellant alloweil to 
 expire, substituting a policy for the 'ainc amount 
 in the l^>neen Insurance Company, without hav- 
 ing obtained the consent of or notified the re- 
 spondents : — Held, reversing the judgment of 
 the court of ajipeal for ( (ntario, 4 A. K. .'VJfi, that 
 the condition as to suliseiiuent insurance must be 
 construed to point to further insurance beyond 
 the amount allowed liy the ])olicy, ami not to a 
 policy sulistituted for one of like amount allowed 
 to lapse, and therefore the policy sued upon was 
 not avoided by the non-cominunieatiou of the 
 5*2,000 insurance in the Queen Insurance Com- 
 pany. /'ar<on.i v. I'/n' Slandanl Fin- Jn.i. Co., 
 5 !5." C. R. 2.S.S. 
 
 See Klein 'i al. v. Tiic Cnion Fire Ins. Co. "l 
 ah, ;U). R. 2a4, p. 371 ; Aoicto/i ft al. v. C-".- 
 ada Furm>r.ii' Mutual Fire In.t. Co., G A. R. G12, 
 p. 374. 
 
 (e) Aileralion of Praini'i.f, Increase of liish, or 
 Chaniji- of Uceiiixttiun. 
 
 Where the words in a condition in a policy 
 are, "if the risk be increased or changed by any 
 means whatever," the term "change must he 
 hehl to be used rather as a synonymn of " in- 
 crease,' than as a word of ditferent signification. 
 Ottawa Co. r. Liverpool Ins. Co., 28 C^. B. ;"i22, 
 approveil of. (jill v. The Canada Fire and, 
 Marine Ins. Co., 1 O. R., Chy. D. 341. 
 
 The plaintiirs premises being insured as "oc- 
 cupied by a tenant as a grocery store and dwel- 
 ling," were re-let to his son-in-law, who used 
 them for dealing in furniture, and had a small 
 
301 
 
 INSURANCE. 
 
 3G3 
 
 room lu'liiiiil the shop in which hu hiul a car- ; 
 pouter's l)eneh aiul tools, and did repairing and 
 rough work. I>., tlie defendant's local agent, 
 was notilioil of this change, and went on the ])re- 
 niisos a. . ^aw the tenant at worh making a 
 desk. He wrote to the head oHice at plaintitrs 
 rccjuest, noti*'ying thi'ni of this, and they an- 
 swered tiiat if the jioliey were sent, with a letter 
 (if etpl.nnation. they would consent in writing 
 (in it, adding, " Is there woodwork doni; on tliP 
 premises ?" The matter was then allowed to 
 drop. The policy contained a conilition that 
 "any eliango matei'ial to tlie risk and within the 
 control or knowledge of the assured, sli;\ll void 
 the policy as regards the part all'ected thereby, 
 unless the change he promjitly notified in writ- 
 ing to the company or its local agent, and the 
 cnmpany so notified may * * cancel tlu; 
 policy. * * " The jury were asked whether 
 the change was material, anil whether it was 
 fairly conimnnicntj(l tri the d(.'fendants;and they 
 foind for the i)l:untifF: — Held, that the verdict 
 should not he disturl)ed. Semlile, that the trans- 
 mission of tlie polic;y for emlorsement was not 
 ess;;ntial. P^-k v. Pli(eni.c Mutual lu-s. Co., 4.') 
 (I P. 620. 
 
 Tlio plaiutilT huving created a mortgage iri 
 favour of a loan company, whereby he covenant- 
 ed to insure the buildings on the property, failed 
 to insure, but assent''d to an insurance effected by 
 the company in tiioir own name, and repaid them 
 the premium. The promises insureil were de- 
 scrihed as a "two story house, single roofed 
 building * * owned and occupied * * as 
 a steam liendiiig factory.'' The i)ropertv having 
 heiMi destroyed liy fire, the insurance company 
 jiaid to the loan company the amount due to 
 them, and took aiiaasignmentof tlieir mortgage, 
 wlicreuiioii the plaintitl' instituted proceedings 
 against the insnraiice company, s(»"'ving to re- 
 deem the property on p.iymeiit of wuat was due 
 on the mortgage after cediting the amount of 
 insurance. It was shewn that the premises, in- 
 stead of being use<l ns a steam iMUnling factory, 
 liad been converted into a door and sash factory ; 
 of wliich ciiange no notice had been given to tiio 
 insiu'ivnce company :— Held, reversing the judg- 
 ment of tlie cour't below, CJ (). R. 8'J) that the 
 special survey set ( at in the report in which the 
 intention to use the premises as a factory was 
 mentioned, did not form part of tlie a[)|)lication 
 or policy and covdd not be construed as an as- 
 sent by the defendants to such occupation : that 
 the statutory condition as to change of occupa- 
 tion or use of the i)nildings without notice to the 
 insin'aii(;e company had therefore been broken, 
 thus invalidating the policy ; and that the plain- 
 tiff was not entitled to any benefit thereunder : - 
 Jleld, also, that the insurance company weie at 
 liberty to set up this defence, though between 
 them and the mortg.igees the policy was, by a 
 8ul)rogation clause therein made uncond.tional. 
 N'luvn V. The Domimon Fire and Marine /«». , 
 Co., 8 A. R. 644. | 
 
 __ I 
 
 I 
 (f) Dnnijer frovi Tnc.eniUarism. I 
 
 Action on a fire policy, dated 2lst May, 1879, 
 on tlie ordinary contents of a barn, which was at ' 
 the time of the insurance empty, and on a reap- 
 ing and threshing machine. 1 his l)arn was on ' 
 the east half of the lot, the plaintiff's homestead ! 
 ..lud home buildings being on the west-half, some ', 
 
 distance across the road. In the ap])lication for 
 the 'nsurance, dated 13th May, 1879, plaintiff 
 answered " No" to the question, "Is there rea- 
 son to fear incendiarism, or has any threat been 
 made V" On the same day the jilaintifl' had ob- 
 tained another policy from defendants on his 
 dwelling house and home buildings, the same 
 (piestion and answer being contained in his ap- 
 plicati(Mi thereffu- ; and the threslier and re.-vper in 
 (|Uestion were then in the homo l)uililings. The 
 tire occurred on tile 'JSth October, 1S79. At the 
 trial it appeared tliat one M. , tlie plaintiff's hired 
 man, about the Stli of May had threatened to 
 beat the ]ilaintilT, and the latter, who was a ner- 
 vous, timid man. beiuijalarmel, had had tlie pre- 
 mises insured : tu i*'' 1": 'iia<l sat up and watched 
 for a night, and that he believed tiie ju'emiaes 
 had been set on Hrc. He denied having any rea- 
 son fin' fear, except as to his home buildings. 
 At the time of the fire the barn contained some 
 grain and hay, and the thrcsiiing and reaping 
 mu;liine, for the loss of wliich this action was 
 brought. One of the conditions on the policy 
 WIS, tiiat if the issured inisreiiresented or omit- 
 ted to communicate any circumstance material 
 to be mule known to tlie company, in order to 
 enable them to jiidg' of tlie risk, the policy 
 would be avoided ; — Held, Armour, .!., dissent- 
 ing, that the pi lintilf could not rec iver, for the 
 plaintiff having admitted his own belief in the 
 danger and acted upin it, his answer to the 
 above ipiestion was untrue. I'er Cameron, J. — 
 The ijuestion was eipiivahuit to " Have you rea- 
 son to fcir, or do you fe ir, inceuiliarism ?" and 
 thougli the bodily threat did not fiirn'sh valid 
 grounds for believing that inceudiarisai was to 
 be fc ired from the p 'I'son thrcit 'iiing, yet, since 
 the insurance was eU'ectod on a,-count of sucii 
 fear, there was a cleir niisrc(ires'"itation in an- 
 swering tlie iiuestiou ; and it made no dilFerenctJ 
 that the pnnierty to be covered by tlie policy 
 was not yet in existence. — Per Armour, J. The 
 word " incendiarisin" commonly ajiplies to build- 
 ings only, and should not be extended in th's 
 case to cover personal property. The (juestion 
 should be construed strictly with refi.'rence to 
 some particular ground of fear, otherwise the 
 answer " Xo,'' refei ring to the first part only, 
 viz: " Is there reason to fear incendiarism"/'' 
 would be in every instance untrue ; for every in- 
 surance is effected because the assured fears the 
 haiipening of tire by accident, neglect, or design. 
 And the evidence in this case shewed that there 
 was no such reason as, operating on the minds of 
 a in ijority of prudent men, would cause them to 
 fear incendi.irism ; and therefore the (piestion 
 was truly answered. The ([Uestion was also pro- 
 perly answered as to the property covered by thi.s 
 policy, for the fear extended only to the home 
 property ; and as to the property intendod to be 
 covered by the jiolicy but not then in existence, 
 such as the cro|)s, as to which no fe ir could ex- 
 ist. Camphdl v. The Vietorhi Mutual tire. Ins. 
 Co., 45 Q, B. 412. 
 
 In answer to the qu.istion put by one com- 
 pany in an application for insurance on a mill, 
 " Have you any reason to lielieve that your 
 property is in d luger from incendiarism ?" an;l 
 liy anotlier, "Hive you any reason to suppose 
 that your property is in danger from incendiar- 
 ism?" the applicant, B., replied to each in the 
 negative. It appeared that thj mill had been 
 burnt some months previously, and that the 
 
363 
 
 INSl ItANCE. 
 
 ?>G4 
 
 t;\ 
 
 m 
 
 
 ■as. (. 
 
 ■ ir 
 
 M 
 
 i£ 
 
 
 origin of the lire was unknown ; anil that tluciits 
 had been made to B. by one ({., an inteminiatu 
 man, wlio was accustomed to induljLje in tlireats 
 to wliifli no one jiaid any attention, to ))urn 
 down tile mill. An anonyniotiH letter bad also 
 been received thieatenint,' incendiarism. I'cr.'ion.s 
 supposed to lie tramiJii bad been seen abdUt the 
 premises, anil B. bad warned the watcbmaii tti 
 be earei'ul, aii<l nientioiicii tbat be b;id rtceived 
 the anonymous letter:— Held, reversing tbe de- 
 cree of Spragge, C, '27 Cby. 1-1, that tbe 
 answers were siicb a misrepresentation as avi^ided 
 the policy, (iyai v. I'iliioiis Jiif. Cii., (Jrmlx. 
 Hoy at lim. Co., n A. K. 5'J(). 
 
 The ((uestion put by tjje company in tbi.-i case 
 was, " Is there any incendiai-y ibing^r tbre;\tcned 
 or apprcbeniled ?" « hicb B. answered in the 
 negative :--lleld, affirming tbe decree of SpragL'e, 
 C, 27 Cby. 121, a inisrei)resentation, which 
 avoided tbe jiolicy. (JnH v. Mircuntik Inn. Co., 
 5 A. B. 5'.l(). 
 
 (g) iyH/iil Xeijlect to Suvv Properl;/ Iii.tiircd. 
 
 Senililo, tbat a lir(^ policy, which is a contract 
 of indeninit\', carries with it, even irrespective of 
 conditions to tiiat etlcct, a [jrovision that tbe in- 
 sured shall not, with tbe fraudulent intention of 
 throwing tlie loss on the insurer, wilfullj- cause, 
 or refrain from taking means within bis i)ower to 
 prevent, the destruction of the insured (iropevty. 
 Ihvl'm V. The Qutcn Ins. Co., 40 Q. B. 611. 
 
 9. iltalutury Conditions. 
 
 (a) CohHtitntionuidij and Aiiplimtion of Act. 
 
 As to constitutionality of Act. ■'>ce Citizens 
 Ins. Co. of Cnniiild v. t'crKoii-t ; tjii/en /;(.<. Co. 
 V. ParKoiin. 7 App. Caa. tlti, p. 11.'). 
 
 Held, tbat according to tbe true construction 
 of the Ontario Act, 39 Vict. e. 2-1, whatever may 
 be the conditions sought to be imposed by insur- 
 ance companies, no such conditions shall avail 
 against the statutory conditions, and the latter 
 shall abmc be dcemeil to be part of the policy and 
 resorted to bj- tbe insurers, notwitbstandingaiiy 
 conditions of their own, unless the latter are 
 indicated as vaiiations in tbe maui.er prescribed 
 by the Act. 'I'Ik; penalty for m)t observing that 
 manner is that the policy becomes subject to the 
 statutory conditions, whether printed or not. 
 S. C, 7 App. Cas. m. 
 
 Where a company has printed its own condi- 
 tions and failed to print the statutory <ines it is 
 not the case that the policy must be deemed to be 
 without any conditioiis at all. II). 
 
 An interim note being merely an agreement 
 for interim insurance preliminary to tbe grant of 
 a policy is not a policy within tbe meaning of 
 that term in the Ontario Act. " Sul)ject to all 
 the usual terms and conditions of this company " 
 in such note means tbat such conditions ought to 
 be read into the interim contract to the extent 
 to which they may law fully be made a part of 
 the policy when issued by following the direc- 
 tions of the statute, subject always to the statu- 
 table condition that they should be held to be 
 just and reasonable by the Court or Judge. 
 Jh. (See 45 V. c. 20.) 
 
 Appellants, a mutual insurance company, 
 issued ill favour of J. F., a policy of iusuiance, 
 
 insuring bini against loss by tire on a general 
 stock of goods in a country store, and under the 
 terms of the policy, the losses were only to bo 
 paid within three months, after due notice given 
 by the insured, according to the provisions of 3G 
 N'ict., e. 44, s. 52, U, now B.8.O., e. Kil, s. iitJ, 
 which provides tbat, in case of loss or damage 
 tbe member shall give notice to tbe secretary 
 forthwith, and llie | roots, declarations, evi- 
 dences and txamiiiacion called lor by o)' under 
 tbe policy, must lie iurnisbed to tbe company 
 within tidrty days after said loss, and uijon re- 
 ceipt of notice and proof of claim as aloresaid the 
 board of directors shall ascertain and ileteiniine 
 tbe amount ol such loss or damage, and such 
 amount shall be payable in three months alter re- 
 ceipt by tbe company of such proofs. A lire oc- 
 curred on the 21st of May, 1^77. *'n tbe next 
 morning J. i'". adviscil tbe insurance company 
 by telegraph. On the 2Urb June, 1S77, the 
 secretary of the company wrote to J. l'"s. attor- 
 ntys, tbat if be bad any claim \h: bad ijctterseiid 
 ill the jiapers, so tbat they might be submitted 
 to the board. t)n tbe JbvlJuly, 1877, J. F. fur- 
 nished tbe company with the claim papers, or 
 proofs of loss, and on the I.Sth July be was ad- 
 vised that, after an examination of the papers at 
 tbe board meeting, it was resolved that the claim 
 should not be jiaid. On the 23:(1 August, 1H77, 
 J F. brought this action uiion tbe policy. The 
 appellants ple.idcd inter alia that tlu! policy was 
 made and i.jsued subject to a condition tbat tbe 
 loss should not be ])ayablc until three moutlis 
 after tlie receipt by the defendants of the Jd'oofs 
 of such loss, to be furnished liy tiie plaintill'to 
 the defendants ; and averred tbe delivery of the 
 proofs on tbe ."^rd July, 1S77, and tbat less tiian 
 three months etajL^ed before tbe commenfemeiit 
 of this suit: — Held, on ap])eal,. Tbat a policy 
 issued by a mutual insurance coin])aii}' is not sub- 
 ject t(j the rnifoi-m Conditions ,\ct, It.S.O., c. 
 lt)2. Ballagh >: jjoyal .Mutual Fire Ins. Co. 5 
 S. C. R. 87, p. .'Kiu apjiroved of. The Mutual 
 Fire Ins. Co. of tht Cotinty of WcUinijtony. J'rey, 
 5 8. C. R 82. 
 
 (b) Iica.ionuljk'iictis of Conditions. 
 
 A preniinin note, dated the 24tb Maj', IsSO, 
 given on ellecting an insurance with tbe defend- 
 ants company, stated tbat the in.^ured for value 
 received on policy No. 1,I)0."», dated the l!th -Ma^', 
 1880, promised to pay the coiiiiiany ijM.IiO, on 
 tbe 24th of iJecember, 1880, with interest at 
 seven per cent., and contained an agreement that 
 if the note were not jiaid at maturity, the whole 
 anmunt of tbe prendum should be considered as 
 earned, anil the policy should be null and void 
 so long as the note remained unpaid. Upon the 
 policy, which was dated the I4tb May, I8v80, and 
 took etleet from oho 24th May, 1880, was en- 
 dorsed a variation condition that the j)olicy 
 should not be valid or binding until tbe premiuiii 
 was actually paid, unless credit was given for it , 
 and in that case it was a condition of the contract 
 
 " that if such prendum be not paid 18 ■, 
 
 the whole amount of premium shall then be con- 
 sidered as earned, and the policy shall be nu" 
 and void, so long as any part tbeieof remains 
 unpaid." The ajiplicatioii, which was made ft 
 part of the policy, stated that tbe prendum was 
 due on the 24th of December, 1880 : — Held, that 
 the omissiou to till up the blauk iu the couditiou, 
 
.104 
 
 3C5 
 
 INSURANCE. 
 
 SfiO 
 
 n a geiieial 
 (I uiiilei' the 
 only ti) be 
 notice given 
 visiiins of 36 
 :. It)], s. oti, 
 s or <l;iiiKige 
 le secrttciry 
 ations, evi- 
 lly or uiiiler 
 le uonijmiiy 
 uiil iijiou re- 
 ilorehaiii the 
 (1 dcteiniine 
 1, and sneh 
 ths alter re- 
 xV lire (.jc- 
 l)n tlie next 
 ee eoiii|iany 
 1877, the 
 F's. attor- 
 1 better iseiul 
 je siibniitteil 
 7, J. F. fur- 
 1 (lapeis, or 
 y he was ad- 
 ;be paiieia at 
 lat the ehiim 
 u^ust, 1877, 
 .loliey. The 
 I! poliey was 
 tion that the 
 Jiree nioiitlis 
 ol the proofs 
 e plaintill' to 
 ■livery of the 
 lat less tlian 
 inniein'einent 
 hnt a policy 
 ly is not sub- 
 t, IJ.S.d., 0. 
 e Ins. Co. 5 
 The Mvlital 
 (jtv)i V. J'rey, 
 
 CiuHH. 
 
 1 May, ISSO, 
 1 tlie dtfuiid- 
 red for value 
 the tith .May, 
 ly .':<14.ii0, on 
 1 interest at 
 reeineiit that 
 ;y, the whole 
 considered as 
 lull and Void 
 I. Ujion the 
 ly, IHHO, and 
 8S0, was en- 
 ; the jiolicy 
 the premium 
 given for it , 
 ■ the contract 
 
 18 , 
 
 then be eon- 
 shall be nu" 
 reof remaiiib 
 was made ft 
 jreuiium was 
 —Held, that 
 ho conditiuu, 
 
 did ncpt prevent its operating.', for tlie eonditii n 
 vould be perfect ■without tlie figures " 18," 
 which might be rejecttd as surplusage ; but that 
 the condition could be refoinied by inserting the 
 wurds and figures evidently intended— namely, 
 tliC 'J-Jtli December, 1880, or might have been 
 filled up by the parties ; — Held, also, that the 
 condition was not unreasonalde, being in elleet 
 the same as that provided for in the ease of 
 u.utual insurance companies by It. S. O. c. KJl. 
 iVdir.i' V. The Aijrkullural hiHurauce Co. tl. al., ' 
 .S'2 C. P. 585. 
 
 Under the statutory conditions indorsed on a 
 mutual lire insurance poliey the words, prescribed 
 by see. 4 of K. S. (). c. 102, except the heading, 
 "Vaiiations in conditions,'" wen; printed in ink 
 of a slightly different colour, but in the same 
 sized type, and after certain conditions varying 
 the statutory conditions, and under the heading, 
 " Additional conditions," there was the follow- 
 ing condition in tyjie of the .same size and colour, 
 "In case any promissory note for a cash preniiiini, 
 or for any premium note * * given to the com- 
 pany, or to any otiicer or agent thereof, be not 
 paid wl en due, the poliey * * shall lie null and 
 void, and the comiiany shall not be liable for any 
 loss occurring either before or after the maturity 
 of such pniinissory note." The note in this case, 
 payable to defendants' agent or bearer, for ■Sl2, 
 the liist iiayment on the jireminm undertaking, 
 which nas for .*15. (i'J, fell due on the 1,'jth of 
 April, 1878, and the loss, exceeding the amount 
 iuEured .SoOO, occurred on the S.Srd of March. 
 This note was not paid, the plamtill' alleging that 
 he omitted to pay it, assuming that the del'eiid- 
 auts wimld deduct it in settling the loss, which 
 had not been .itljusted : — Held, that the Uniform 
 Conditions' Act, U. ,S. O. c. 1()2 (excepting see. i 
 2), does not apply to mutual insurance compa- 
 nies ; but that if it did the condition would have 
 been clearly void for non-compliance with see. 4 
 of that Act : — Held, also; reversing the judgment 
 of the Queen's ]{ench, 44 Q. li. 70, that the con- 
 dition was not just or reasonable, as it was re- 
 tjuired to lie by the express contract, and by sec. 
 o.") of the Mutual Insurance Act, K. S. O. c. Hil ; 
 and that the plaintifl' was entitled to recover. 
 The reasonableness of a condition is to be tested 
 with relation to the circumstances of each case 
 at the time the policy was issued. But tjuiere, 
 per Moss, C. J. A., whether in the abstract such 
 a condition could be regarded as reasonable, and 
 jier Patterson, J. A., it could not. I'er Patter- 
 son, J. A., the conilitiou was also unreasonable, 
 because more stringent than the statutory pro- 
 visi(jns upon the same subject, sec. 48 of the 
 Mutual Act. Quierc, whether this was a note 
 which the company had power to take, or one 
 within the condition. lialhKjh v. The Hmjnl 
 Muluul Fire Iimuraiice Co., H A. K. 87. 
 
 Action on a fire policy, upon which the statu- 
 tory conditions were not indorsed, but which was 
 on its face declared to be subject to the company's 
 conditions indorsed, the 11th of which was that 
 the insured should do all in his power to save and 
 protect the insured property, and prevent injury 
 thereto. By the 17th condition the non-fultilment 
 of these conditions entailed the forfeiture of the 
 polif-y. The jury found specially, aii'ongst other 
 things, that the plaintif) wilfully negleeteil to 
 save, and prevented others from saving, the in- 
 sured property, whereby Lis goods were prevented 
 
 fri ni lieing saved, but they disagreed as to the 
 deleiice of fiaudiiknt over valuation :— Held, 
 thatundci the dei ision of the Privy Council in 
 Pni>ons )■. Citizens' Ins. Co., 7 App. Cns.Ot!, the 
 policy n ust be taken to be a policy w ith the sta- 
 tutory coi.difiiPiis only; and a new trial was 
 ' grunted in older that the case might proceed as 
 iipcn such a policj'. DtvUn v. The Quku In.*. Co., 
 4() Q. B. (ill. 
 
 Per Burton, J. A. — That a clause in the appli- 
 cation, in this case, stating that the agent of the 
 company tilling up the application should be re- 
 regarded as the ag( nt of tlie applicant was not, 
 by reason of its lieing made part of the policy, 
 a condition thereof, and subject to the deter- 
 ihiuatioii of the Judge as to wluther it was just 
 and reasoiialjle ; ami if it were, it vas not uu- 
 rea.siinable. Soirden v. The Standurd Fire lim. 
 Co., 5 A. J!. 2110. 
 
 ]\v a condition in a policy of insurance addi- 
 tional to the statutory ccijiditioiis, it was provided, 
 that "when propirty insured * * or any jiart 
 thereof shall be alienated, or in case of any trans- 
 fer or change of title to the property insured, or 
 any part thereof, or of any interest therein with- 
 out the consent of this company iiuhjrsed hereon, 
 or if the piuiierty hereby insured shall It, levied 
 upon, or taken into pmsscssion or custody under 
 any legal process, or the title be disputed in any 
 pruceediiig at law or equity, this policy shall 
 cease to be !,iii(liiig upon the company " ■—-Held, 
 |alliiiiiiiig the deiree of I'roudfoot, ^'.C. 20 Chy. 
 ll.")J that such ciiinlition was not ju.>t or reason- 
 able, and that it w iis not binding. Sattds v. The 
 Standard ///»■. Co., 27 Chy. 107. 
 
 Bj' .Tn additional condition ot a policy of insur- 
 ance it was provided that if the insured property 
 should be levied upon, or taken into possess' .1 
 or custoily under any legal process, or the title 
 sliouhl be disputed in any proceeding in law or 
 ei|uity, the pnlicy should cease to be binding upon 
 the company. After the insurance was etl'ected 
 an execution issueil against the goods of the in- 
 sured, under which the bailiff' made a formal sei- 
 zure, but did not deprive the insured of their pos- 
 session or custody, or place any one in po- session, 
 and upon a bond being given a day or tA^o after- 
 wards, the .seizure was w itiidrawn. Tin. Court of 
 ( 'omnioii Pleas .■iOC.P.ril.heldthattbiswiisa valid 
 seizure, and that the plaintiil', w ho was mortgagee 
 of the goods and to whom the loss was payable, 
 could not therefore recover: — Held, reversing 
 this judgment, that the plaintiff was entitled to 
 reco\er. Per Piurton, Patterson, and Morrison, 
 J.l.A. , that there had not been a seizure within 
 the meaning of the condition, which releis to an 
 actual cust<idy and change of possession. Per 
 , Armour, J., that the condition was not binding 
 j on the insured, as it was not printed in ccmipli- 
 ance w ith It. S. t). c. 102, s. 4. Wilson v. The 
 LStamlard Fire Ins. Co., 29 C. P. .SOS, followed 
 and approved of. Semble, per Patterson, J. A., 
 that the condition was void, as being unjust and 
 unreasonable. Remarks by Patterson, J. A., as 
 to the principle and considerations upein which 
 the validity of a variation of or addition to the 
 statutory conditions should be tested and deter- 
 mined. Mdi/ V. The Standard Fire In.i. Co., 5 
 A. B. (iOJ. 
 
 The plaintiff applied for an insurance upon his 
 1 etock- in -trade with the defendant company. 
 
367 
 
 INSURANCE. 
 
 368 
 
 \ I 
 
 1^1' 
 
 ■ 
 
 :fc! 
 
 
 b\ 
 
 i: 
 
 
 t^t^ 
 
 M 
 
 •1* 
 
 •l... 
 
 
 •« 
 
 ► 
 
 I !• 
 
 
 Pending the negotiations the company's agent 
 told tlu! plaintitriio thought tlio company's con- 
 <litioii was to allow twenty live pounds of powder 
 to be kei)t, and tiie plaintiff said lie did not keej) 
 more than ten pounds. Tlie insurance was tlicn 
 effected l)y an interim receipt, and on tlie same 
 night the premises were burned. 'Die plaintitl 
 had more than ten pounds, but less than twenty- 
 five pounds of powder in stock when tlie fire oc- 
 curred. The statutory condition prohibited 
 more than twenty-five pounds l)eing kept in stock 
 without permission, and the company's variation 
 of their condition relieved them from liability if 
 more than ten pounds were "deposited on the 
 premises, unless the same be sjK'cially allowed in 
 the body of the policy and suitable extra premium 
 paid." The cise having been <lealt with on other 
 grounds, on an appeal to the I'rivy Council, was 
 remitted to this ( 'ourt to try whether the vari- 
 ation was a just and reasonable o7ie. The learned 
 Judge at the trial found it to be reasonable. 
 Held, Hagartj', C. J., dissenling, that under 
 the circumstances of this case, iiuismuch as the 
 company's agent had I'cin-escnted that twenty- 
 five pounds of gunpowder were allowed to bo 
 kept in stock, the condition now insisted npon 
 was not a just and reasonable one to l)e set up 
 by the company, or one which they could have 
 inF«rted in the policy, and was therefore voi<l, 
 and that the plaintiff should recover. Per Ar- 
 mour, J. — The condition being more onerous 
 than the statutory condition relating to the same 
 subject matter, was for that reason to be deemed 
 not just or reasonable. Per Hagarty, ('. J., and [ 
 Oalt, J. — The variatiim was not necessarily un- 
 just or unreasonable. Per Hagarty, C. J. — The 
 statutory condition exempting the company from | 
 liability if more than twenty-live pounds of 
 powtler were kept without pcrmissicm, does not 
 preclude or prohibit the insurers from bargain- 
 ing that they will not be liable if more than ten 
 pounds be kept, except on certain conditions as 
 to extra premiums, &c.; and as the phiintitl' at 
 the trial did not in his evidence mention the 
 representation of the agent, or allege that it in- 
 fluenced him, and it was not relied upon there, 
 it sh(mld not now be given ell'ect to. /\tl^■^ulls 
 V. The Queen's Jii.s. Co., 2 0. J{., Q. B. D. 45. 
 
 187S, and on the 5tb, the plaintiflf notified the 
 defendants by letter. A few days after the plain- 
 tiff saw one S., an agent of the defendants for 
 obtaining applications, though not for collecting 
 claims, but who had acted for plaintiff in settling 
 a jircvious loss with defendants, and asked him 
 to act for him on this occasion and do wliat was 
 ])ro])er, which S. i)romised to do. On 17th ()o- 
 tolier the tlefendants' president came up and saw 
 jjlaintiff', who informe<l him of the loss, and of 
 all the circumstances relating thereto, and plain- 
 tiff was told by him in answer to his enquiry, 
 that nothing further need be done. The ])laintiff 
 in oimsc(|Ucnce did nothing ; but snbse(|uently, 
 on hearing that defendants disputed the claim 
 some correspondence took place, which resulted 
 in the plaintiff employing a solicitor, and proofs 
 were thereupon put in, but after the lapse of 
 thirty days : — Held, aflirming the judgment of 
 tlie Court of Common Pleas, 31 C'. P. 5(i'2, Bur- 
 ton,.!., dissenting, that see. 2, of IJ.S.O. c. 1()2, re- 
 lieving the insured under certain circumstances 
 from forfeiture for non-delivery of the proofs of 
 claim, applies to Mutual Insurance Companies, 
 and to tile time of delivery as well as to insufti- 
 eiency in the proofs : — Held, Burton, .1., dissent- 
 ing, under the facts set out in this case, that the 
 omission to deliver the proofs in jiroiwr time, 
 arose from accident or mistake, within the mean- 
 ing of that clause. Remarks as to the uinstruc- 
 tion and effect of this clause, and the extent of 
 the discretion given by it to the court or juilge. 
 litihins V. Victoria Mutual lii.i. Co., (i A. U. 427. 
 
 (o) Other Cascn. 
 
 Held, that the statutory conditions were not 
 applicable to contracts of re-insurance such as 
 those in these cases. .See The Fire fiiAiiraiife Ax- 
 ,sori(itio)i, Liiiiited, et al. v. Thf Ciiiunln Fire and 
 Marine /»<. Co., 2 (). R. 405, p. 375 ; The Fire 
 Iwiuranco Aswciation, Limiteil, v. The Canada 
 Fire and Marine ln>i. Co., 2 0. R. 481, p. 375. 
 
 Compliance with statutory enactment as to 
 printing. SoeSandnv. The Standard Inx. Co. ,21 
 Chy, 1(57. 
 
 10. Notice, Account and Proof of Loss. 
 
 Upon a policy issued by a mutual company 
 the statutory con<litions were indorsed with va- 
 riations, one of which was (being the same as 
 sec. 5(5 of the Mutual Act, R. !S. O. c. 161), that 
 the proofs, decL-vations, &c., called for by the 
 statutory conditions should be furnished to the i 
 company in writing within thirty days after the I 
 loss. The loss occurred on the 2nd October, 
 
 11. Actions on Policies. 
 (a) Limitation of Time. 
 
 Held, reversing the judgment of the Court of 
 Ap])eal, 4 A. R. 2!)3, that the api)ellant com- 
 pany under the policy in this case were entitled 
 to three months from the date of the furnishing 
 of claim jjapers l)eforc being sul)ject to an action, 
 an<l that therefore respondent's action had been 
 prematurely brought. The Mutual Fire In.iur- 
 anre Co. at the Count// of WeUinyt" n v. Frey, 5 
 S. C. R. 82. 
 
 Sec Mr I nt lire v. The National Ins. Co., 5 A. 
 R. 580, p. 3(59. 
 
 (b) Pleadimj. 
 
 To a declaration on a policy of insurance made 
 by defendants, but not averring that it was under 
 the corporate seal, the defendants pleade<l non 
 est factum : — Held, plea good ; for that the de- 
 claration set forth a comple' instrument, a policy 
 of insurance made by d .ndants, a corporation, 
 which ex vi termini, iin])orted a seal ; and in .any 
 event the plaintiff could not be embarrassec", by 
 the plea, as it must, under the Judicature Act, 
 Rules 141 and 493, be treated as a mere denial 
 of the making of the contract of insurance in fact, 
 and not of its legality or sufficiency in law. 
 Burnett \. The Union Mutual Fire Insurance Co., 
 32 C. P. 134. 
 
 'Vhere a right of suit exists in a, body of per- 
 sons too numerous to be all made parties, the 
 court will |)ormit one or more of them to sue on 
 behalf of all, subject to the restriction that the 
 relief prayed is one in which the parties whom 
 the plaintiff professes to represent have all of 
 
369 
 
 INSURANCE. 
 
 370 
 
 them an interest idontirril wiHi that nf the plain- 
 tiir. Hnt where a mutual insurance company 
 had establisliod three <listinct brandies, in one 
 of which, the waterworks branch, tlie plaintiff 
 insured, giving his ])rouiissory note or undertak- 
 ing to iiay SI OS, and tlie company mad(^ an as- 
 sessment on all notes and threatened suit in the 
 Division Court for payment of such assessment, ' 
 whereupon the ])l.iintilf filed a bill "on beiialf ' 
 of liiinself and the other policy holders associa- ' 
 ted witli him as iiereinaftur mentioned," alleging 
 the comjiany was abiuit to sue iiim and the other 
 policy iiolders in said branch, that largo losses 
 had occurred in the com|iany prior to the tiuK; 
 of his oit'ecting his insurance, and insisting that 
 ho and the other policy holders could be pro- : 
 perly assessed only in respect of sucli losses as ' 
 had arisen since they entered the compmy, and 
 praying that the necessary incpiiries might be ' 
 jnade and accounts taken, alleging tint the Divi- 
 siiHi Courts had not the michini.'ry nc 'ssary for 
 that puri)ose : —Held, that acconling to the state- 
 ments of the bill, the policy-holders in u.... witei'- 
 worka branch were not represonted in the suit, 
 and a demurrer on tliat ground filed by tlie com- ; 
 pany was allowed with costs. 'l^ioiiisijii v. I'lic 
 Mutual Fire fii.i. Co. H aL, 29 Chy. 56. j 
 
 (c) Rel'erenrc to Arbitration, 
 
 The condition by which the defendants sought 
 to defeat the aotion provided tliat all disputes 
 totichiug loss or damage, should, after proof 
 thereof, be submitted to arliitrators to determine ' 
 tlie amount, but not the liability, and tliat an 
 action against the company should not lie sus- \ 
 tainahle until after an awanl had been obt lineil ' 
 fixing the .amount, or unless such .action should '•■ 
 be coinnienced within twelve mouths after the 
 loss ; and the defendants covenanted, in the body i 
 of the policy, to jiay the loss within sixty days 
 after the loss should be ascertained and proved 
 in .accordance with the terms of the policy. It 
 apjiearod that the assureil had furnished the de- ' 
 fendants winh proof of the loss on Jie .5tli of ; 
 April, to which the defendants made no olijeo- 
 tiou until the lltli of .luiie following, wlienthoy 
 served a written re piest for an .arbitration upon ' 
 the assured, who refused to arbitrate, and the 
 plaintiff, to whom the claim was .assigned, brought 
 this action: — HoM, thit even if tlie condition 
 were available as a defence, it liarl not been bro- 
 ken, as in tlie absence of .a request to arbitrate 
 within the sixty d,ay.s, the loss must be consider- 
 ed , as "ascertained and proved," and the plain- ; 
 tiff therefore, had a right of .action on the expi- i 
 ration of that period. Mrlnfijre v. The National ■. 
 J lis. ('•)., 5 A. R. 580. " I 
 
 The defendiints required the plaintiffs to pro- | 
 ceed to arbitration to ascertain the amount of ; 
 loss under a policy issued by the defendants iu ; 
 favour of the plaintiff, which contaitied the sta- 
 tutory condition .as to reference to arbitration. I 
 Theplaintiff was willing to arbitrate .as to amount ' 
 provided the defend ints wouhl admit liability I 
 for the loss. Tliis the defend ints refuse! to! 
 do : — Held, affirming the order of Armour, .T., ' 
 reversing the order of the \l ister in Ohanibcrs, I 
 that the defendants were not entitled to a stay ' 
 of procei lings until the amount had b3en .ascer- ! 
 tainel by arbitration. Hit'ilii't v. Lvulon As- \ 
 snmitn <?»., 4 (). R., Q. B. L). 293. I 
 
 24 
 
 12. Insurance hy or for Jforfijagfe — Right of Siih- 
 roqadiu. 
 
 M. who had mortgaged his i)roperty to the 
 plaintiffs, subsequently on the second of April, 
 18SI, insured with defendants, loss if any pay- 
 able to plaintiffs. Attached to the [lolicy on 
 a printed slip dated 2!lth May, 1881, w.is the 
 following clause : "It is hereby .agreed tint this 
 insurance as to the interest of the mortgigeo 
 (uily therein shall not be invalidated l)y any acl; 
 or neglect of the iiiortgigor or owner of the 
 property insured, nor by the occupation of the 
 [iremiscs for ])nr[)o»es more hazardous than are 
 jierniitted by the terms of this policy ;" a loss 
 having occurred the defendants disputtid their 
 liability, and the matter was referred to an ar'oi- 
 trator, who aw.irded in favour of the plaintiffs, 
 after refusing to admit evidence for the defen- 
 dants, that the [)olicy had been obtained by fr.iud : 
 — Held, that till! above clause provided only 
 against future acts that the defendants did not 
 tliereby guarantee the policy to the plaintiffs as 
 indisputilile, and tlicrefore that they were not de- 
 barred from setting up that tin insur.mcc had 
 been effected by fraud, and the case was remitted 
 to the arliitr.itor for the admission of sui;li evi- 
 dence : — -He'd, also, that the clause did not 
 amount to a new insurance in favour of the 
 niortgagee. Oiniilinn .Sfi'iiritii'.^ Co. v. ('niiadaFi-e 
 Mutnai Ih^. Co., 1 (). R., Q. B. D. 494. 
 
 On Feb. 21.st 1879, A. B. & Oo., the plaintiffs, 
 gave a mortgage (ui a mill property covenanting 
 to insure, whii^li thej' did in the 11. comiiany, by 
 ])olicydated 19th M,arch,lS79,expiring IstMarch, 
 1889. On 10th l.arch, 1879, A. left the firm. 
 On 1st March, 1880, the mortgagees, having re- 
 ceived no renew.al receipt of the above policy, in- 
 sureil the prop;>rty in the U. company in the 
 iiami^ of the plaintiffs. This U. ))olii'v provided 
 that the loss should be pay.able to the mortga- 
 gees, and the insurance as to the interest of the 
 latter should not be invalidated by any act of 
 the mortgigors, and that if the mortgagors did 
 any act invalidating the policy, and tlie insurers 
 should p ly the amount of the policy to the mort- 
 gagees, they should be subrogated to the rights 
 of the latter, or might pay the whole of the mort- 
 gage debt, and obtain an assignment of the mort- 
 g igc. There was no written aiiplicatiou for the 
 U. policy. The \\. policy was sim|)ly handed to 
 the insurers, and from it they drew their pnlicv, 
 which ha' '•'le stitutory comlitions oily. No 
 representations w o made to them in .my other 
 w ly. The premium was paid l)y the mortgagees, 
 who collected it from the plaintiffs, the latter 
 having taken no part in effecting it. On 14tli 
 March, 1881, the mortgagees wrote a letter to the 
 plaintiffs in which they representeil the U. policy 
 as indisputalile. A fire having occurred the U. 
 company ])aid the mortg.igees the amount of the 
 loss, which more than covered the amount duo on 
 the mortgage, of which they took an as^ignmont. 
 The evidence she we. I that .at the time of ef- 
 fecting this policy there were certain insurances 
 on the propert}', and .also certvin mortgiges, of 
 which the U. company wore not informel and to 
 which they never assented. The plaintiffs now, 
 suing on the IJ. policy claimed to h ive the mort- 
 gage disi'.h irg id ami the balanco of the insur- 
 ance money paid to thorn, .and the U. comp.any 
 countorcliimed for the amount duo on the mort- 
 g.age : — Held, (reversing the decision of Fergu- 
 son, J.,) that the noa-commuiiicitioa of A.'s re- 
 
371 
 
 INSUIJA^CE. 
 
 S72 
 
 V, 
 
 UmL 
 
 :::5t' 
 
 tircinont from the firm was not a lireacli of sta- 
 tiitory coiuliticn No. 1, 1ii;l';uiso A, thoii>,'li lie 
 liad ittiifd, ntiiiiiuil an iiihuralile iiitoiist, botli 
 as liaMf on tli'! io\ tii;ciits in tlic nioiff^jigc, anil 
 ii8 still Mtaininju' tlio right to rickoni the niort- 
 t:ago;an(l, nioreovur.eveu if A. had no inttii'st at 
 all, the surviving jiartners could recover accord- 
 ing to the extent of their intevcht. Senihle, even 
 it notice of thedidiigc had Lien of ni( ment, yet, 
 since the evidence .shewed that the matter ol 
 the jioliey, as lietween tlio nioitgagees and the 
 I'. C( ni] »ny, vas left to the under eleik.s to dial 
 vith, and that a cleik of the mortgagees infoinied 
 a elerk of the V. comiiany of the change in ipies- 
 tion, a jiirj' might projierly find that notice of 
 the change was comuiuiiieated to the U. cimi- 
 ]iaiiy. Klihi <l iil. v. 'J'/n- L liion I'iri Jit.i. ('i>. d 
 at., SO. 11, thy. 1). 'J;{4. 
 
 Held, fnrther, that the non-c( nimunication of 
 other niorlgiigis, nd'Hiiiunt to that to the jilain- 
 tills, was IK t a hicaehol statutoiy conilition J\'o. 
 ], leeause such nijn-cummunication will not, 
 apart from stijjidation, irre.sjjcctive of the nature 
 rnd amount ot the other moitgagts, and without 
 ;iny imintatiiiU of traud, avoid a policy ; and alto 
 1 icaiise the jilainfifls vne not bound unatketl to 
 state the exact nature and extent of the intuett 
 to he in.^i. ud, ai.ii Ihtre was at least contriLu- 
 tory negligmco on the part ol the insurers, who 
 iiiight he regaided as haviiig waived infoimation 
 as to the uioitgages. JSan.o r. Gore Listrict Mu- 
 tual Ins. Co., 1 A. 11. f;4o, followed. JL 
 
 Held, further, that the fact of there being two 
 jirior insurances unassented to was not a bicach 
 of statutory K.ndition Iv'o. S, because the evidence 
 shewed the I'.pcilicy was to take the place of the 
 K. policy, and of the prior insurances one was 
 assenteel to on the face of the 1>. peluy and the 
 other had 1 een taken in substitution foi anotlu )-, 
 which a!so appearcel as assented to en the i{. 
 policy. It Was the duty of the V. ci mpany to 
 lave piro] n iy isMitd their job',), agieeiig to 
 take the pcsitii n of the K. cc nipj.ny, as al.'-o it 
 was the duty of tlie mortgagees to see the licliey 
 prt.jierly issucel. Jli. 
 
 Held, luilher, that the letter of March ]4th, 
 1881, contained le presentations which the mort- 
 gagees were be unci tei make gueid, especially as 
 the U. e( 111) any acted as agents for the plaintiUs 
 'n ellectiiig the policy. Jb. 
 
 IT'ld. fni tlier, that the clam of the IT. c( ni- 
 
 : •my to feiecleife eould not be enleitaini d, foi- 
 J. c( mi any eould iieit take advantage of their 
 
 e 'vr default, in not making the fciimal entiy of 
 , to the jirieii- insurances ( n their policy, to 
 ■ into J. lay the hubrogatie.ii elaute le)r their 
 
 e.v\n advantage. iSpiinglield File Ii.s. Co. v. 
 
 Allen, 43 K. Y. 387, distinguished. Jb. 
 
 Held, lastly, on the whole case, it shi uld be 
 declared tliat the mortgage had been paid, and 
 the pre.per discharge thould le executed, anel 
 the mortgagees sheiuld j ay the lalai.ee ei the in- 
 f-iiraiicc me.ney to the jilaintiUs, with inteiest, 
 with tests of tiiit tei the plaiidills r,s against bcitli 
 defendants, but wilh<.ut prejudice to the elefeii- 
 dants litigating their respective liabilities as be- 
 tween themselves. Jb. 
 
 Quaere, also, whether upon the facts stated in 
 the report the plaiutifis were not entitled to I'c- 
 cover till tlic ground eif a ctmpnmise made be- 
 tween tlie parties. Jh. 
 
 I Sec Greit v. Ciliinm /».«. Co.; Creel v. Jfayol Ins. 
 I Co., 5 A. K. 5!t(), p. ;!ri8 ; J/oircs v. Tin JJahiijiwn 
 Fire and Minnie lll•^. Co., 8 A. It. G44, p. 3(11. 
 
 13. Mutmd hwiurance Com] iivien, 
 
 (a). J'nmiinn 2\'olen uml A)>.si.-'>iiieiils. 
 
 'I'hc directors of tlie plaintiffs' company, a mu- 
 tual insurance company, inccjrporated under C. 
 .S. U. C. c. f)2, asscsscel the defendant on hisjue- 
 mium note or undertaking in the sum of tJ:;, to 
 pay two jirc niissoiy n<ites given for ni(>iiey bor- 
 rowed by the company puii'oiting to be under 
 "Act of I'arliament and by-hnv ^o. 7." 1'hcse 
 two notes were made several years before the is- 
 suing ot the defendant's j olicy, anel weie kcjit 
 rem wed njito the time of the ashcssmeiii: — Held, 
 that the assisMiiciit was invalid, fe/r tliat under 
 the by-law and statutes in leireu at its pjissing, 
 which are set out in the ca.«e, a renewal or the 
 said notes was not authorized; and it could not 
 bo upheld under K. S. V. e. 1(11, s. i'!). in foice 
 when the netes wtic made, for fl.onj.li that Act 
 ;iuth(ri;i(l llie i.'-tue of iieitcs tor all lawful (ur- 
 ] ( .'^es of the e( iiipi ny, and the indclinitt renewal 
 thereof, by the by-law the money raised by the 
 notes could 1 c a) pliid only to j.'iy li >s( s then in- 
 ci.md, or due, or acciirng within the year dur- 
 11 gv\hich the ixjtcs weie ciirrcnt, and assessable 
 under the It. S. O. e. Hi), only on the ]iicmium 
 undertakings existing at the time stall loj.ses 
 wi re inctiiied. (^Hiare', whether iiiininm notes 
 of the oonipany eould be assessed for tbr payment 
 of these notes. 1 /le Vieli.rid Mulnil luie Jus. 
 Co. V. 'Jla.)„p.M,ii, ?,-2 C. r. 470. 
 
 AVlicie a sum charged f<ir re-insuiaiue of the 
 policies of diie branch in aiiolher biMich ol tlie 
 c( 11;) any, and theiel(ie ill(j.al and lillia \iiis, 
 was ii ' iiuleii in an asses.'-iiicnt tor bosses e ther- 
 v\ ise go(d:— Held, that this diel not invaliilate 
 the assessment. Jh. 
 
 Quare, whetlier the note given for the premi- 
 niii in this ease was negeitiable notwitlistaii<liug 
 the special agreeiiient in it, and as to the edcct 
 of the defendants 1 eing eles( ril ed theiein as the 
 "^Vateit(wn Insuianee C( n.); ny," while their 
 real name was "'Ihe Agiiculttiral Insurance 
 Comi'aiiy eif AN ateitown. Is. \ ." Smrnv. The 
 Aijiteiilturul Jii.-.. Co. etui., 32 C. 1'. 58;"). 
 
 Ihe defendants, a mutual insun nee comj'any, 
 ill existence at the time of the ) a.'-sing ot the Mu- 
 tual (.(Ui) allies' Act of 1873, 3(i A'ict. c. 44, U. , 
 had divieleel their 1 tuinets intei stveial liianehes, 
 and had also raised a guarantee capital fund, out 
 eif which the hisses in all the liaiiches as they 
 arise wcie ) aid. Ihe bylaw lor raising the 
 ' guaianteelund,) assed ein the rjth January, 1874, 
 I cemtaiiicd a pi<.\isi<in that fieiiii the sui'iilus pro- 
 fits eif the coniiiany fi( ni year to year, anel by 
 as.'-esuneiit on iiumium notes, a leseive fund 
 shoulel be eientei' h r the jui) ( se of paying off 
 the guarantee cajiifal. In a suit by a creditor to 
 rtali/e the assets of the c< mpany, it appealed 
 that the amounts to be eollectiel on tlie' piemium 
 notes in two branches, would not suflice to pay 
 the losses in those branciies, and that the amounts 
 to be collecteel on such notes in the other two 
 blanches were suflicient foi that pur);ose;— Held, 
 by I'roudfoot, V. C, on a)ipeal lr< m the blaster, 
 ('27 Chy. 3111), that the policy-holdeis in the sol- 
 vent branches weie liable to be assessed on their 
 
373 
 
 INSUKANCE. 
 
 374 
 
 i 
 
 premium iiotea for tlic purpose of paying off the 
 liability duo to the guarantee stockhoKlers so far 
 as might bo necessary to iliseliargo h)sses paid in 
 tiiose particuhir brandies fron> tliu guarantee 
 fund: — field, on appeal to this eourt, that what- 
 ever might be the power of the direutors, tiie 
 Court of Chancery had uo jurisdiction to make 
 the assessment. X'l///' v. t'anudian Mutual Ins. 
 Co., G A. It. 238. 
 
 Qua>re, per Burton, J. A., as to the ofTect of 
 sec. 75 of H. S. O. c. 161, and its inconsistency 
 with tlie clauses of the Act relative to branches 
 and the exemption of the niend)ers of one branch 
 from liai)ility for claims ou another, lb. 
 
 Where an application was made to the court to 
 add the persons who had signed prcniiuia notes 
 as parties in the Master's ollice, and to direct the 
 Master to assess tlie amounts duo u])on the notes, 
 and to order payment of the same to the receiver 
 from time to time, it was .shewn that the direc- 
 tors had not made any assessments upon the notes 
 pursuant to K. S. (). c. l(il, s. 45 et seq : — Held, 
 that as the lial)ility attached only upon such 
 assessment by the directors, the court should not 
 add to, or alter the lialjility of tho parties who 
 liad made the notes by referring it to the Master 
 or a receiver to do that which the directors onlj' 
 could do, clause 75 of 3(i N'ict. c. 44, whicii gave 
 power to a receiver to do this, having Ijcen omit- 
 ted from the statute on revision. Uili v. JUr- 
 chants' and Manufacturers' Ins. Co., i!8Chy. 660. 
 
 (b) Other Cases. 
 
 Held, that the directors of a mutual insurance 
 company may, under K.S. 0. c. KJl, s. '2',), borrow 
 money on promissory notes or debentures with- 
 out passing a by-law under seal. The Victoria 
 Mutual Fire Ins. Co. v. Thunipson, 32 C. T. 47(5. 
 
 Held, that the defendants as a mutual insur- 
 ance Company, were capable of granting insur- 
 ances in yueljec as well as in Ontario. iJujI'y. 
 The Canadian M utual Fire Ins. Co., 27 Chy. 391. 
 
 Trustees being indebted to the plaintiffs and 
 holding stock in the defendant's company as- 
 signed the stock to the latter in consideration of 
 a sum expressed to be paid by them for the 
 trustees to the plaintiffs. The sum was paid by 
 the issue of the defendant's debenture to the 
 plaintitis :— Held, that the transaction did not 
 constitute a "loan of money" from the plain- 
 tiffs to the defendants within the meaning of 31 
 A ict. c. 52, s. 12, (O.), and that tho issue of the 
 debenture was therefore ultra vires. Hank of 
 Toronto v. Beaver and Toronto Mutual Ins. Co., 
 28 Chy. 87. 
 
 A solicitor's claim for costs, after a retainer by 
 a Mutual Fire Insurance Company, was held to 
 bo a debt for which the company was liable, not 
 each branch of the company for its own propor- 
 tion. Dujf V. Canadian Mutual Fire Insurance 
 Co., 9 P. j<. 292.— Proudfoot. But see A'. C. 2 0. 
 K. 560, p. 374. 
 
 Tlie claim being one to B. & D. , B. assigned his 
 interest in it to L)., upon certain trusts in which, 
 however, B. had no interest : — Held, that the 
 assignment was absolute, and B. entitled to 
 sue ; — Held, that B. having been president of 
 the company when the costs were incurred was i 
 no objection. lb. 
 
 Held, Osier, .J., dissenting, that under the 
 Mutual Insurance Act, R. S. O. c. 1(51, theco.its 
 of a solicitor for services rendered to a Mutual 
 Insurance Company, are chargeable not against 
 the general assets of the com[jany, but against 
 tho respective liranches for whioli tho services 
 Were in fact rendered, and in case of deliciency 
 of assets of any of tho bianchoa the other 
 branches are not liable for the claims thereon. 
 S. C, 2 0. H., C. P. U. 560. 
 
 Per Osier, J. — A creditor of the company, for a 
 debt incurred as part of tho necessary expenses 
 thereof, though in relation to tlie business of 
 some Ijranchos onl}', is entitled to be paid out of 
 moneys derived from assessments for Icjsses and 
 expenses on policy holders in other brandies. Ih. 
 
 The defendants v.ere auth(U-ized by their 
 charter to carry on both proprietary and mutual 
 in.surance business ; Imt they were deljarred 
 from taking risks «liich were exti'a-haz:irdous in 
 the mutual branch. The plaintiffs' property fall- 
 ing within the prohiljite<l 'lass, was insured with 
 the deleiulants by a policy which was not on its 
 face a mutual one, but an 'ihsolute undertaking 
 to pay the loss, but insteau of making a casl. 
 payment they gave a preiiiiniu note upon whioli 
 they paid several assessments. Tho a^ plication 
 rl.so was headed ' ' Premium Note ^Jystoui; — Held, 
 revcr.-iiug the judgment of the Court of Chancery, 
 ■-'8 Chy. 525, that the policy was not a nuitutil 
 one, there being nothing except the premium 
 note, which was not conclusive, to indicate that 
 it was a mutual insurance, and the property being 
 of such a nature that it could not be insured in 
 the mutual branch. Qiuere, per Cameron, J., 
 whether the ri.sk was suliiciently shewn to be one 
 whicli defendants could not insure in theirniutual 
 branch. Low<on el al v. Canada Farmers' Mu- 
 tual Fire Jn.i. Co , 6 A. R. 512. 
 
 Held, also, following Parsons v. Standard Ins. 
 Co., 5 .S. C. R. 2.'J3, that a change in the com- 
 pany in which another insur.'iuce has l)cen effect- 
 ed, not increasing the amount insured, did not 
 avoid the jiolicy. Jb. 
 
 Held (reversing tho decision reported !) P. K. 
 185, which followed Loiint r. The Canada Farm- 
 ers' Ins. Co., 8 P. K. 4S;i, that ii. S. O. c. 161, 
 s. 61, lii'oviding, as to mutual insurance com- 
 panies, that no execution shall issue against such 
 company upon any judgment until after the 
 expiration of three months from tho recovery 
 thereof, does not apply where the judgment has 
 been recoverod on a policy issued by the company 
 on the cash principle. S. C, 8 A. K. 013. 
 
 See Rubins v. Victoria Mutwd Fire Ins. Co. 31 
 C. P. 562, (! A. K. 427, p. 368 : BalUvjh v. The 
 liot/al Mutual Ins. Co. 5 A. K. 87, p. ;i(')5 : The 
 Mutuid Fire Ins. (.'u. of the County of Wellimjton 
 V. /•'/•ei/, 5 S. C.I {.82, p. 364. 
 
 14. He-insurance. 
 
 The Dominion Insurance Co. insured one H. 
 against loss by tiro to the amount of S5,000, 
 and under a contract of re insurance made be- 
 tween the defendants and the Dominion Com- 
 pany, the latter company re-insureJ $2,500 with 
 the defendants. Subsequently the Dominion 
 Company entered into an agreement with the 
 Fire Association, whereby, after reciting that 
 
375 
 
 IX8UHANCE. 
 
 37G 
 
 Si' 
 
 IP 
 
 
 
 5 i 
 
 ■a 
 
 
 the Doniiiiioii ("(niiprmy tlosiifil to ln! rulii-vod 
 from iuid (jii.'iiaiitccil iij,';iiiist Inns nii uxistiiiL,' 
 risks, ami that tlic Kiic Asgdi'iatioii liail aj,'rou(l 
 til ilo 8(1 ami to re-iiiMuru said risks, the fninijaiiy 
 traiisl'erred all their husiiitss ami the goml will 
 therool' to the assdciation, who tliereliy reinsured 
 all the existing; risks, siiliject to the terms of the 
 jmlioies, ite. ; the assoeiation to take uml aeeejit 
 all re-iiisiiraiicesiiiade witli other coiii|iaiiies, with 
 power to use the eonipauy's uaiiie. A lossoceur- 
 red on H.'s policy whicii was ail justed and paid 
 by the association. In an aetion against the 
 defendants to recover the amount of the re-iiisur- 
 uiiee : — Held, that the iletemlants Cduld not 
 i'iea})0 lialiility for either one or the otiii.'r of tiie 
 plaintifl's was entitled to leeover ; and tiiat there 
 WHS nothing in an olijcetion raised as to doulde 
 indenniity. 'J'/if I'liv /tin. An.idriii/iini ( /Jiiii/iil) 
 tt <il. V. T/ii- CtiiKii/ii Fire (tnil Jlariiie Iiik. Co., 
 2 0. li., (,>. P.. 1). 4S1. 
 
 Held, also, that the statutory oonditinns could 
 not be ini])ortpd into and read with either ti)o 
 agreement between the plaintitls, or that be- 
 tween the I'oininiou ('onii)any and the defend- 
 ants, lb. 
 
 Held, that the defendants' contract of re- 
 insurance did not prevent the ]>laintill's from 
 .assenting to any reasonablt; and pro]ier waiver of 
 conditions made in good faith, and not shewn to 
 influence the loss or increase the burden of the 
 reinsurers ; and tlierofor,; an assent given by the 
 Dominion Company toa chattel mortgage on some 
 of the insured goods, without the defendants 
 knowledge and assent, did not release the defen- 
 dants, lb. 
 
 Under a state of facts similar to those stated 
 in the preceding case, except that tlie insurance 
 was of one U. 's property: — field, that tlie plain- 
 titls were entitled to recover, for treating the 
 agreement between tlie plaintittsas a re-insurance, 
 (though more properly a transfer of Imsiness witli 
 its liabilities and collateral securities), if it was 
 of the whole amount of the Dominion Company's 
 liability, tho association having |)aid the whole 
 loss to the company, or which w.-*s tho same thing, 
 to C, were entitled irrespective of any assign- 
 ment to contribution from defendants : if, how- 
 ever, it was only of the residue of O.'n -isk the 
 defendants were still liable to the company on 
 their policy, and ))y the very terms of the agree- 
 ment it was cfToctually assigned to the associa- 
 tion, who acquired all their co-plaintiff 's rights 
 and interest in it: — Held, also, that the statu- 
 tory conditions were not applicable to such a 
 contract of re-insurance as in this case. Tlw 
 Fire fii-iaraiice A.in'irinfidii {Lini'Uijl) etal. v. Tlin 
 €tiiinda Fire awl Marine Im.-Co., 2 0. R., C. 1". 
 D. 495. 
 
 II. Life Assurance, 
 
 1. Insurable /nterat. 
 
 O. applied to respondents' agent at Quebec for 
 an insurance on his life, and having undergone 
 medical examination, and signed and procured 
 the usual jiapers, which were forwarded to the 
 head ofHce at New York, a policy was returned 
 to the agent at Quebec for delivery. O. was un- 
 able to pay the premium for some time, but L., at 
 the request of the agent at Quebec, who had been 
 entrusted with a blank, executed an assignment 
 of the policy, paid the premium and took the 
 
 assignment to himself. Subsetjuently, L. nasign- 
 ed the i)olicy, and the premiums were thence- 
 forth iiaid by the assignee. Trior to (i.'s death, 
 the general agent of tiiu company enquired into 
 the circumstances and authorized the agent at 
 (Quebec to continue to receive the ])reniiunis from 
 the assignee : — Held (Gwynne, J., di.ssenting), 
 That at the time the policy was executed for G., 
 he intended to etfect a bona tide insurance for 
 his own benetit, and as the contract was valid in 
 its inception, the payment of the premium when 
 made related back to the date of the jiolicy, and 
 the mere circumstance that the assignee, who 
 did not collude with ( i. for the issue of the jiolicy, 
 had ])aid the premium and obtained an assign- 
 ment, did not make it a wagering policy, Vczina 
 v. The Sew York Lift Ins. Co., « S. C. K. 30. 
 
 '1. Ooi.rilui'. Premiums, 
 
 By a ])olicj' of insurance, dated 13th April 
 lS(!!t, for tlie jiaymcnt of the annual premium of 
 .S'J!>.">(), payal)le ijuarterly, the defendants jointly 
 assured the lives of the plaintifT and his wife in 
 81 ,0t)0, and engaged to pay the same on tho death 
 of the assured when the event ])rovided for hap- 
 [leiiod, di.'diicting therefrom all notes for pre- 
 miums on tiie policy unpaid at that time, together 
 with any balance of the year's premium remain- 
 ing unpaid. And in case the assured should not 
 ])ay the said premiunis on or before the said seve- 
 ral days, &c., and the interest on all notes on ac- 
 count of premiums until the same were paid, the 
 ci mpaiiy should not be liable for any sum, "with 
 the exceiitiqn that in case this policy is allowed 
 to lapse, after one full annual payment has been 
 made, tho insurance will be continued in force for 
 the jieriod whicli the eijuitable v.aluo of the 
 policy at the time of lapse would purchase." 
 Payments of premiums were made in cash from 
 13th Ajiril, 18(i!», to, but not including 13th 
 January, 1874, upon which day tlie policy lapsed, 
 being for fmir ye.irs and tliree-fourths of a year, 
 which, by the company's tables under the equi- 
 table non-forfeiting .system, extended the policy 
 after the lapse for a period beyond the'2nd Janu- 
 ary, 1877, when the plaintiff 's wife died. It ap- 
 peared that on the '2Sth January, 1875, the 
 plaintiU' gave defendant's agent a so-called 
 jiromissory note for the four instalments dne in 
 1874, being up to, but not incluiling, 13th Jan- 
 uary, 187o, whicli note was jiayable in three 
 months, and provided th.at if not paid at maturity 
 with interest at seven per cent., the policy should 
 be null and void. It also appeared that on the 
 8th April, 187o, during the currency of the note, 
 the plaintiff paid, and the company received pay- 
 ment in cash of the premium which fell due on 
 the 13th January, 187.'>. In an action by the 
 plaintiff to recover the amount of the policy : — 
 Held, that he was entitled to recover : that by 
 the cash payments made up to the 13th January, 
 1874, there was a right to the benetits of the 
 policy for such extended period : that it could 
 not be deemed to be the intention of the parties 
 to abridge such rights by the note of the 28th 
 Januar,', 1875, but that the effect of non-pay- 
 ment thereof was merely to put the parties in the 
 same position as if the note ha<l not been given. 
 Per (ialt, J. — To work a forfeiture for the non- 
 payment of a promissory note, as the one in this 
 case, the company must demand payment of it 
 on the day it becomes due, and, if not paid, de- 
 
 ■<*f 
 
37G 
 
 U I 
 
 INSUKA^X•E. 
 
 378 
 
 for 
 
 dure the jiolicy forfeited or void. Seinlilc, ]ier 
 AVilwon, C. J., the coiiipaiiy, liy reeeiving tlie 
 preiiiiuiii in cash for a period suliHciiueiit to tiiat 
 forwliieli the forfeiture was ehuiued, had waived 
 such forfeiture, though tlie receipt was licforc 
 tlie forfeiture liad accrued. W'utlH v. Allmitic 
 Miittud Lift'. Ins. Co., Wi C. I'. T),'!. 
 
 J.M. was insured by a life pohcy, under whicli 
 tliirty days' grace was aUowed for payment of 
 preniiuins, and a lapsuc' policy niigiit lie renewed 
 within a year upon proof of health, payment of 
 arrears, and a fine. S. was the resident secre- 
 tary in Canada of the defendants, witii the powers 
 of a general manager, and there was a local hoard 
 of directors in Canada, Init S. managed all mut- 
 ters connected with the receipt ot premiums, 
 communicated directly with the hoard in Eng- 
 land, took his instructions from them, and laid 
 hefoi'e them monthly accounts from which it 
 could he ascertained whether premiums falling 
 due the preceding month were unpaid. The 
 assured, heing unahle to pay a premium ahout 
 to fall line, wrote to S. asking him to take a note 
 at three months. S. replied, "1 am sorry you 
 rcijuire three months' time, but I suppose it nnist 
 he done, although it is against our rules. I shall 
 have to take the responsihility myself. I enclose 
 you draft lor acceptance, which please return 
 early." He also wrote that the company were 
 very particidar ahout overdue premiums. From 
 this time !S. accommodated the assured hy taking 
 notes, to which interest was added. On tiie 9th 
 of August, lb7!>, E. , the cashier of ilefeiidants, 
 wrote to the assured, acknowletlgiiig the receii)t 
 of his letter with a blank note which had been 
 sent to S. to be tilled up for the renewal of a note 
 about to fall due, and saying that S. was alisent 
 from town, and that as the two premiums of 
 November, 1878, and May, ISTH, were so long 
 overdue he should have to refer the matter to ti. 
 on his return, adding, "until tiiese back prem- 
 iums are paid the society is oil' the risk." The 
 death occurred on the L'Oth October, 187!), at 
 which time there were two notes outstanding — 
 one for the premium due 30th November, 1H78, 
 dated 7th February, and due 10th August, 1 87!*, 
 which was unpaiil, anil one dated iilst June, 
 187'J, at six months, for the lu'emium which fell 
 due on the 30th May, 1871', which was still cur- 
 rent. After the death the amount of these two 
 notes was tendered to the defendants and refused. 
 iS. being examined, said he did his best to keep 
 the policies alive, and had no doubt at the time 
 of his authority to do so. The jury found that 
 the notes were taken by the defendants' agent as 
 cash payments; that the taking of them was 
 within his authority; and that he l;ad waived 
 payment upon the dates the premiums were due ; 
 and a verdict was entered for plaintiff: — Held, 
 (Hagarty, 0. J., dissenting) that the evidence 
 shewed that it was within the authority of the 
 resident secretary to accept notes in payment of 
 premiums, and there was nothing shewing notice 
 to the assureci of any want of such authority ; 
 that the non-payment of thenoto in August, 1879, 
 while the other note was current, did not deter- 
 mine the policy ; and the verdict ought not to be 
 disturbed. Per Armour, J. — The defendants in 
 I'higland had become aware by the returns sent 
 by fS. , of the forbearance granted by hiin, and 
 had rutitied it. Per Hagarty, C. J. — Admitting 
 that S. might accept payment after the proper 
 time, he could not make a binding executory 
 
 I agreement to give further time, extending per- 
 haps beyond the (hiiatioii of tlie life. Mtijf'ttll v. 
 I '///(' ltiit<uue .UiUiittl Life AnKiirancf Siiciil)/, 45 
 : i}. 15. 5(JI. — This case has been carried to appeal. 
 
 I Hy a policy of insurance upon the life of J. N. 
 I it was stipulated that if any pieiniiim should not 
 I be paid when due, the consideration of the cmi- 
 ! tract should be deemed to li.ivt! failed, ami the 
 company released from liability. Hy aiKptlier 
 clause, if an overdue premluip was received, it 
 was to be upon the express condition tlia , the 
 assured was in good health, &c., and if the fact 
 were otherwise, the policy should not Ije put in 
 force by such receipt. A cheque was given for 
 a (piarterly premium, with the recjuest to hold it 
 for a few days, as thoic were not then funds, 
 j wiiich was received by the agent but the premium 
 recei[)t was not given up. It was alterwanls 
 presented but not accepted. On the "ilst Octol)er 
 U lids were provided, but it being then after 
 banking hours, the cheijue was not pres'-nted. 
 Tiiat night J. N. was killed: — Hehl, allirming 
 tiie decision of the court below (45 (,). H. 593) 
 that the policy lapsed the day after the premium 
 fell due; that nothing but payment could then 
 revive the policy, and that there was not any 
 evidence of ]mymeiit, or of anything dispensing 
 with it. A'ci'W V. Union Mutual Life Jus. Co., 
 7 A.U. 171. 
 
 3. litctifyinii Mintake in Policij. 
 
 Action to recover the amount of a policy of 
 
 I insurance issued by the appellants for the sum 
 
 of .SL'.OOO, payable at the death of the resiHindeiit, 
 
 ' or at the expiration of eight years, if he shoiihl 
 
 live till that time. The iiieinium mentioned in 
 
 I the policy was the sum of .^l(i3.44, to lie paid 
 
 I annually, [lartly in cash ;ind partly by tlio re- 
 
 ' spoiideiit's notes. The aiipellants liy their plea 
 
 ; alleged that the insurance had been effected for 
 
 1 61,000 only, and that the policy had by mistake 
 
 I been issued for i!'J,000 ; that as soon aw the mis- 
 
 I take had l)eeii discovercil they had offered a 
 
 policy for !? 1,000, and that previous to the in- 
 
 ' stitutiou of the action they had tendered to the 
 
 \ respondent the sum of >i!S3'J.97, being the amount 
 
 I due, which sum, with .*!l'5. 15 for costs (which 
 
 j had not been tendered), they brought into court. 
 
 Since (October, 1809, when a new policy was of- 
 
 I fered, the premiums were paid by the respondent 
 
 I and accepted by the appellants, under an agree- 
 
 I nieiit that their rights W(nild not thereby be 
 
 \ prejudiced, and that tiiey would abide by the 
 
 decision of the courts of justice to be obtained 
 
 \ after the insurance should have become due and 
 
 payable. Parol evidence was given to shew how 
 
 the mistake occurred, and it was established that 
 
 j the premium paid was in accordance with the 
 
 company's rates for a $1,000 policy :— Hehl, that 
 
 the insurance effected was for §1,000 only, and 
 
 that the policy had by mistake been issued for 
 
 .§2,000. The ..Etna Life Immrance C'onipcunj v. 
 
 Brodie, 5S..C. 1{. 1. 
 
 4. Other Cases. 
 
 Action on a life policy. The application con- 
 tained a number of (luestiona and answers, and 
 at the foot was a declaration, signed by the as- 
 ! sured, that to the best of his knowledge and be- 
 ' lief the foregoing statements and other particu- 
 
379 
 
 INSURANOi:. 
 
 3S0 
 
 •Hf. 
 
 
 Ills wi'vc triK^ ; tli.\t tlio iliTl;iviiti(iii mIiohM fciiiii 
 t,li(' IiimIm (if the cciiitiMi't ; Jiii'l tint if .iiiy uiitnic! 
 aviTiiiriit li.'i'l liccii iiiti'iitiniiiilly iindc llicrriii 
 (ir ill tlic rcplii'-i to tlw r(iiii|i:iiiy'8 ini'ilicnl ailvi- 
 MiT in c'liiiiici'tioii tlicli'witli, till' |i(iii('V hIiihiI I lii^ 
 void. Hy Hir ]"ili('V till' ili'rl:iiaiiiill .iliil " I'l'l.'l- 
 ti\c ]i.i]ii'is ' \vi ri' iniiili! till' li.isi* of tlii' ruiitrrt, 
 «itli II |iroviMii liiat if iniy fr iinliili'iit or uilfiilly 
 iintnir iii.itciial allcLratinn was ciiiitaiiicil in saiil 
 lici'luralinii ; iir if ilsliiMiiil tlicri'aftrra|iprai' tiiat 
 any in itciial iiifuriiiatiiiii had lucii « itliiirld, and 
 liny (if till' niattci'M sit fmlii iiad nut In i u truly 
 and iailly stated, tlii'll the Jinliry sliniild In; viiid. 
 Til till' (|iicstiiiiis in till' a]i|ili.atinn as tii tlio 
 liainr and l'l■^idl•llla' of usual imdiial atti'iidant, 
 and for what SL'i'ioiis illiuss had In- attnidi'd, the 
 assiiri'd aiisMiTcd " none '' ; and to tlii' i|ii('stioiis 
 liy till' iiicdical advisiT as to what othi r disi'asi,' 
 or |ii'i'sonal injury and from whom had lit' ri'ci'iv- 
 cd iirofissional as.^istanii'. i^ii'., thr assiiri'd iiii- 
 swi I'l'il "nlllll^"' It was found that thrsi; an- 
 MWii's wi'i'c; wilfully iiiitrnr, and that the infor- 
 nialion was wilfully withhrld Iroiii and was iiia- 
 ti'ri.d til III' stated to the ('oiiijiaiiy : Held, that 
 these answers (Miiistitiited alireaeh of the express 
 colli raet lii'tweeii the parties, and theiefore the 
 jiolii'y was void. /,'i(.<.\(/l v. 'J'l<i- (Utiunhi //il'f 
 A. ■'■■ilinuirr (',)., ;12 f '. I'. I'.'ili. 
 
 The pleas settiliL! "!' *^^'"' ''I'love defences wen,' 
 added at the trial, and after the ease had liecii in 
 prot^'i'ess for some time. The action wis eom- 
 mi'iieed liefori) tlie .liidieatiire Act came in force, 
 but the tri.ll took iil.iee there.ifter : Held, that, 
 whether under sec. ,S of the Adiiiinistration of 
 Jilslieo .Act, or under Iviilc IViS of the .Iiidica- 
 tui'i' .\i't, the pleas wore jiroiierly added. A 
 replication to these (iluis set up that certain 
 (riirrrspoiidence lietweeii the coinp.iiij''H gen- 
 eral nianav'er and their local ai,'ent. Imt of whieli 
 the assured had no notice, directing the agent 
 to m ike enijtiirii's as to the liahils, &e., of the 
 •■issiired, u|iiiii the result of wliieh tlii! agent 
 was to issue the jinlicy, eonsliliited an agreement 
 that the company would rely on tiie jiidgineiit of 
 t!ie a;.:ent alone founded nil sllili eiiipiirics : — 
 Held, that the replie.ition could not liesuiiporteil, 
 either at law or on the facts. ///. 
 
 I'cr Wilson, ( '. .T. —Where the iiinteri.ility of 
 eertiiii rni|uirie.^ is ohvioiis, and is assumed at 
 tlio tri 1 -as ('. !i. with reij.'ird to the teiii|)er- 
 ate liiliit^ or otherwise of the decc.ised —there 
 is no need to sulimit it to the jury. //(. 
 
 The manager of the defendant com]iany eiiter- 
 tainiiie doulits as to the tu'opriety of accepting 
 A. H.'s aiiplication for a risk on his life, caused 
 the lol^al agent of the c()ni|i;iny to make further 
 eiu|uiries as to A. H.'s habits, !kc. On receiving 
 a satisfactory report from the agent a policy was 
 issucil : — Held, that the defendints were not 
 thereby precluded from relying u|H)n the written 
 applic'ition of A. I', and shewing that it cont.iin- 
 ed wilfully untrue statements, the eireet of which 
 ■was by tlic express stipulations thereof sutricient 
 to avoid the policy. 'I'lie judgment of the court 
 behiw, 32 C. I'. '2!tft, unprn, in other respects af- 
 firmed, .v. C, 8 A. R. 71G. 
 
 The ilofendant's Act of Incorporation provided 
 that " all policies shall * " be signed * * 
 anil being so signed and countersigned and un- 
 der the seal of thecompany, shall be deemed valid 
 and binding upon them." The policy sued on 
 
 was issued by the cnmpaiiy without the eorpor- 
 
 ate seal being allixed, although the attest.itioii 
 
 clause stated that the company had thereunto 
 
 allixed its seal; Held, .'iHinning the judgmcMt 
 
 I of the (1. I'. (2!l(:. I'. 221), that the piiliey wiis 
 
 ' a valid eiintiact to grant ai' .'iisuranee. I'er 
 
 '.Moss, (', ,). .\. 'I'lie policy supplied internal 
 
 evidence of a mutual mistake ag.iinst which a 
 
 • 'iiiirt of Kipiit.y would, if iieeissary, relieve. 
 
 W r'ui/il V. 'J /it'. ,S II II Miiliiiil I, iff liiH. Co., ") A. 
 
 It. 'ilS. 
 
 I Sec, 7 "f the statute, iiieorpor.iting the appcl- 
 
 ilaiitsi;i7 N'ict. c. S.'iOnt.), after specifying the 
 
 I powers of the directors, enacts as follows : " but 
 
 , no contrail, shall lie v.iliil unless made under 
 
 the seal of the company, and signed by the pre- 
 
 I sidcllt, viee-pi'esidciit., ir one of the directors, 
 
 and eoiiiitersigned by the ni.'inager, except the 
 
 , inteiim receipt of the comp.iiiy, which shall be 
 
 I binding u|ioii the coiiip my on such conditions ns 
 
 may thereon be printeil by direction of the 
 
 I lioaid." il. I'l. W. Iiroiieht an action to recover 
 
 ' the amount of a policy issued by the appellaiits 
 
 in favour of her father. 'I'lie policy Miied on wax 
 
 I on a printed form, and had the atlcstatiiiii : " In 
 
 i witness whereof, the jjondoii Lile Insurance ('o. 
 
 of liondoii, Ont.irio, have eaiised these |ire.selits 
 
 to be si^'iied by its president, and attesti'd by its 
 
 secret ary, and delivered at the head olliee in the 
 
 city of London, i\:c." To a |ile,i that the policy 
 
 sued on was not sealed, and liierefore not liinding 
 
 upon the appcll.ints. The plaintill' replied on 
 
 ei|iiitable grounds, alleging that the ilefeiidants 
 
 ;icueiited the deceased's application for iiisiir- 
 
 I aiice, and that the [inlicy was issued and acted 
 
 j upon by all parties as a v.did policy, but the 
 
 '' seal w.'is iiiadvei'tenlly omitted to be allixed, and 
 
 : el.'iiining that the del'eiidaiits should be estopjied 
 
 frolii setting up the absence of the sell or ordered 
 
 ; toallix it : -Held, allirining the judgment of the 
 
 Court of Appeal, ."i A. I!. 2I.S, and the (Joiirt 
 
 of (lomnion I'leas, 20 ( '. I'. 221, that the setting 
 
 up of '• the w.iiit of ;i seal " as a defence was 
 
 a fraud which a court of eipiity could not refuse 
 
 to interfere to prevent without ignoring its func- 
 
 tiiiiis and its duty to prevent ,'ind redress all 
 
 fraud whenever md in whatever sliajie it appears, 
 
 and therefore the resiiondent was entitled to the 
 
 relief prayed, as fo iiided upon the facts .illeged 
 
 in her eipiitable replication (Hitchie, ('. ,1. , and 
 
 Tasehereaii, J., dissenting). VV/c Lowlon Li/r 
 
 his. Co. V. Writjhl, ') S. 0. R. 40(5. 
 
 Friendly society — Regnlations respecting in- 
 surance —Forfeiture. See OiitcHw T/ie .Supreme 
 Citiirt i,j ilii' /ii'li'jiciiilciil Onlir of Foresters, 4 O. 
 R. 535; p. 30!). 
 
 III. AccrDEN— Assurance. 
 
 By certain conditions of a jiolicy of insurance 
 against accident, it was provided that the insur- 
 ance should not extend to any bodily injury 
 where the death or injury might have happened 
 in conseipionco of voluntary exposure to unne- 
 ces.sary danger, hazard, or perilous .adventure, or 
 of violating the rules of any company or corpo- 
 ration &c., or while eng.aged in, or in coiise- 
 ipienee of any unlawful act : that the insured 
 should use all duo diligence for personal safety 
 and protection, itc. ; ami that standing or walk- 
 ing on a railroad tr.ack, were hazards not con- 
 templated or covered by the contract. Where 
 
380 
 
 381 
 
 INSUllANl'i:. 
 
 382 
 
 •(iri)iir- 
 liMt.itiori 
 lirr.'iiiit'i 
 iiili,'iii('iit 
 lii'V \\:in 
 
 iiitci'iiiil 
 
 uliicli it 
 
 rt'licvc, 
 
 •"., r. A. 
 
 ic .■ll>|icl- 
 
 fyiiii,' the 
 
 H : " l)Mt, 
 
 li^ nnck'r 
 
 tlic pri'- 
 
 lintotiirs, 
 
 \(C|it the 
 
 I mIi.'iII Ii(> 
 
 itidiis n>< 
 
 (if till' 
 
 tliu iiiHuri'd w.is killt'il liy Iciii.,' run nvcr l>y iiii 
 eiiLtiiii' \N liilo I'Diitr.irv to tlir iiilis of tlif Ndi'tli- 
 <!rii IJ.iilw.iy CiPiiipMiiy, ;iii(l tlic Ht.itiit-c t'J N'ict. 
 c. 0, H. I<>, Miili-HH. r», ti, l>., ilriviiii,' II hitrsi' hihI 
 l)ni,','y on Hh! private >,'r(iiiiiiU of tln^ saiil niit- 
 w.iy i'nin|p my .it a pi, ice wlim^ tliciM w.ih ,i lu't- 
 wiiik of tr.irks, ami wIutc it was iiniHt (laiit,'(:riiiis 
 to liu: lli'lil, til it tlii'ii^ I'oiilij 1m' iki rci'ipvcry, 
 .•Mill a iioimiit wa-t I'lit ■rnl. Xi'i/l v. 'I'ritmlh'r* 
 l„i. Co., :»l (!. I', ."lilt. 
 
 On appi'al tiio ilccisiuii of tin.' Cmii't of ('oin- 
 niiiii I'livis, sn)ira, tlio court Itinnj^ cipialty di- 
 viili'il, win iliHiiiisscil, with ccists. I'lir ll:i;,';irty, 
 ('. J., ami ( ' iMi roll, .1. Tin; tiviilciii'o hIkuvimI 
 til it tin; (Ini'c'iscd liml voluntarily ^.'oiic nniii'i'i.'w- 
 sirily into a piici; of (laiiLji'r. I'cr Kiirtoii and 
 I'Mtli'iHoii, .M.A. Ill an action n|ioii an .iccMdiiit 
 pnlicy the iiliiintifV Iriviii;,' proved a I'l li n priinV 
 fioii' within t'lc policy, it wa:-i for the dcfcndints 
 til shew that tlid ilci'ci-ic 1 voluntarily (.'Xpmed 
 liiniHclf to iiiinec 'm iry diii.;er or oiin of the 
 dtlii'r (IcfiMiecs .-( 't np. Th.! nonsuit tlierefuri! 
 was iiii|iropL'r and a nitw trial nhonld liavi; liccii 
 givuitcd. ((in! of tlii; (Miiidition.s of the pulicy 
 was that tlu) in;)iircd hIiciiiM not stand or w ilk <in a 
 railway tr.iek. i\)r Ciin ron, .1. .andscinlilc per 
 II i4:irty, ('. .1. Siii'li condition was lirokcii liy 
 til' insured driviii;,' on, not >iniply cro.ssin,', a 
 iMilwiy trek in a Imj-ity. I'ur liiirton, .1. A. 
 .Such co'idition \v is inl 'iidc 1 to a|iply to the 
 case, coniinon in Canada, of persons nsin^ tin; rail 
 way tracks as roadways, and could not liu con- 
 si<leri;d asapplyiin; in livm'y case of an .aci'iilent 
 to till! insiireil while on sm'h trick. .S'. (',, 7 A. 
 K. ITO. Alllrinud in the .Sninuniu 'i'oiirt 23rd 
 Jiniu, 1884. 
 
 IV. Ma rim: Insiu antr. 
 I. /iin'irn'ifi' liilcfcil. 
 
 ('. inado advances to M. upon a vessel, then in 
 CijiirsL- of iMiisti iictioii. Upon tlic fiithof a verhal 
 aj,'i'eeinent with 15., that after the vessel should 
 b'j laimelied, hIic hIiouM liu iil.iecd in his hinds 
 for sale, and that out of tho iiroeceds the ad- 
 vaiK^es so ma to should lie paid. When the vessel 
 WIS well adv,inci;(l (!. disclosed tlie tacts and 
 liatiiro of his interost to the ;vi,'eiit of tlm re- 
 spoiidiMit'H coinpany, and the coinpiiiy issui'd a 
 policy of iiisuranco, at;iiiist loss liy lire, to (/'. in 
 till! sum of SU.ODI). The vessel wiis still nnlinish- 
 C(l, and in H. 'h po.sspssion wlnni slic w,is liiirned : 
 — Held, revin'siiiL; the juil,L;iiicnt of the conrt 
 below, thatC". 'h interest, relating,' as it did to a 
 specific ch.ittcl, was an ofiuitalilc interest wliiiih 
 wns insuralile, anil thurcloru C was ciititleil to 
 recover. dhirk v. Thf Scoltlsli Imperial Inn. 
 Co., 4 8. (J. U. 192. 
 
 2. Comlifioihi. 
 
 The appellants issued a marine jiolicy of in- 
 surance at Toronto, dated the ^Sth N'ovember, 
 187.''>, insuring, in favour of the respondent, 
 ?3,000 upon a sargo of wood goods laden on 
 board of the banjuo J:Iiui:,'rant, on a voyage from 
 Quebec to Greenock. The policy contained the 
 following clause: "J. C, as well in his own 
 name as for and in the aaiiio and names of all 
 and every other person or persons to wliom the 
 same doth, may, or shall appertain, in part or in 
 
 ' all, doth make insurancn and eaiisn tlirei' tlioii- 
 s iiid dollars to lie insured, lost or not lost, at and 
 fl'oni (iliii'lice to tircciiock, vessel to go out in 
 tow." The vessel was lowed from Inr loading 
 I Inntli in the liarlioiir into the middle of tint 
 , stream near liidi.iii Cove, which forms part oi 
 I the h irlioiir of (,(iicliec, ;ilid Was all indoind witli 
 ! cargo by reason of the ice four days ift'r leaving 
 the h.irlioiir and lieforc iv.iching the Travi rse. 
 On an action upon the policy it w.is : -Held 
 (l''oiiniier and Henry, .M., ilissi'iitingl, that tliu 
 words " frolll (^>lli)liec to (Jrecliock, vessel to go 
 out in low," iiicant that she was to go out in tow 
 Iroiii the limits oi' the h.irlionr of t^iiidiec on siid 
 viiya;;e, and the towing fioin the loading berth 
 to another p.irt of the ii.irboiir was not n compli- 
 ance with the warranty. I'ei' Ititehie, I!. .1. 
 The i|Mestioii in this case was not, if the vessel 
 had gone out ill tow, liiiw far she should h.vvc 
 been towid in order to comply with the war- 
 r.inty, the delcniiinatioii of Liiis latter (|nestion 
 li 'in^ ilepcndeiit on several considciMl ions, such 
 as the lateness of the season, the direction ;iiid 
 fon^e of the wind, iind the state of tin; Wi;ather, 
 and jiossilily the nsige iiml custom of tlic port of 
 <,>ueliee, if any existed in relation thereto. JVr 
 (J Wynne, .1. The evidence est ililished the exist- 
 eiiec of a nsi ;e to tow down the riv >r as far .u; 
 ini'.;lit In; deeincd necessary, having regard to the 
 state of tlie wind ;ind wc ither, sonietiiiie-i lii'yoiid 
 tin; Traverse, but ordinarily at the date of the 
 dep.irtiire of the plailitilfs vessel, at least .as far 
 ,as tin; Traverse. 7'/ic /'rorliiriaf /iiinrdiKW Co. 
 (i/l'itWllu V, CoillKllll], .") .■<, (J. 11. 'J,")S. 
 
 .3. Scdiriirthiiii'M, 
 
 It appeared that the vessel was driven ashore 
 onthelitli .'September, and that tin; plaiiititTs got 
 her oir.ind towed her to Detroit, wh>;ri; sin; was 
 |iiit into dry dock .and repiire 1. The salvage 
 charges aiiioimti'd to Si-, 01)0. On .'iith >>cptein- 
 lier, the owner gave notice of ab.vn hmineiit, and 
 i;l,iiiiii;.l .as for ;i tot il loss, and the [ilaintiirs 
 settled witli him for .•;:;.•(, 01):). On ■_".)lh .Se|it.'inbor 
 the ve-isi;l was libelled for seiinen's wages and 
 silvag.; charges, .and was silbseipieiitly sold to 
 p.ay s line. 'I'lie actual dam ige done 1 1 the vessel 
 only amounted to SI ".">• .\t the time of the .ac- 
 cident tin; vessel h.i.l only one anchor, having a 
 short time previously lost a iei;ond one she had. 
 There w is no expr.'ss warnnity of seaworthiness : 
 — Held, til it the policy beiin,' a time polii;y there 
 was no implied wariMiity of soaworthiness. ']'/ii' 
 Plid'iii.r /ii.'iiiriiiiri' do. V. The. Anclior InKuraiinii 
 Co., 4 0. R., (;. I'. 1). 524. 
 
 4. Ahmnloiime.nt and Loss. 
 
 T., rospoiident, was tho owner of a vessol 
 called the "Susan," insured for JjSOO under a 
 valued time policy of m irine insur.ince, under- 
 written by ( !., the ,ap[iellant, and others. Tho 
 vessel was .stranded and .sold, and l". brought an 
 action .against (!. to recover as for a total loss. 
 From the evidence, it appeared that the vessel 
 stranded on theOth.fuly, I87(), near Port (Jeorge, 
 in the County of Antigonisli, adjoining the 
 (yoiinty of (Jnysbori)', N.S., where tho owner re- 
 sided. Tlie la.ister employed surveyors, and on 
 their recommendation, oonlirinuil by the judg- 
 ment of the master, the vessel was advertiaeil for 
 
383 
 
 INHURANOE. 
 
 3k t 
 
 •X 
 
 
 Kikli! oil till' r<illii\viii^ ili'iy, anil nuIiI oh tliu lllli 
 fliily !<*■' s^MI'i' 'l'l»' < Mptiiiii iliil not ^ivo niiy 
 liotlco of iilMiiiloiiini'iit ami iliil imt uiiiliiivour to 
 m't I'll till' M>nl. 'I lir pllK li:iMiT« iiiiiiniliati ly 
 ^^^<l lilt' M'hhi'l oil, fiC, liiiil lirr liiliili' ti^ilit. anil 
 iiikcli to I'ii'toii, anil rrpaiml, ami tliry attrr 
 wariln iiHiii lirr in ttailiii); ami laiiyiii^' paHnrn- 
 ^('IH : I KM, on apical, lliat lliu ^al(.' l>\ tin; 
 inaMlci \«as nut jUMliliaKli', ami llmt tlii' i:\ iilriicr 
 I'ailtil to t-lii w any fxtiist' lor llu' mastir not 
 ('iiinninniralin>,' with liiti ownii' ho hh to I'liiniic 
 liini to ^ivi' notiri: oC alianiloinncnt, il liu intinil- 
 cil to I'i'ly n|iiin llii' Io.sh a.s total. I'l r tJwynrif, 
 .1., tliat it il a |ioiiit tail ly oiirii to i'm)uiiy in a 
 coiilt of apiiial, w 111 tlni or not, as in tln' ini'siiit 
 j'aHc, till' inii itnns iliawii from tln' cv iilinci' l>y 
 tin: jml^'c « iio tiii cl tlii'ianu NMtliout a jiiiy, wi'i'o 
 till! I'Lahoiialili ami |iro|ii r infirinii'.s to lie iliaw ii 
 from tlio failH. d'tilld'j/n r v. Titijlui; 5 S.C.I!. 
 'MK 
 
 See Till /'liiiiil.i- liiH. Co. v. VVic Amliur Ins. 
 Co., 4(). K. r.'.'4, p. :)84. 
 
 5. Jk-iiixHruiire. 
 
 One H., wild was the a^ciit nt Montrunl, of the i 
 jilaiiitiir an! ik't'inilanl ( 'oiniiaiiirH, aiii'ijtiil it | 
 risk on a vrKscl of ^fT.TItO for tlii' ilcfimlanlH, liut 
 as till' limit ini'si'iilnMl liy tliini on any one v^srl | 
 waH iiro.OdO 111' liail to ri'-insnn: for ."-•_', TOO ami lit; 
 ininiL'iliatily iliiicti'il lii.'< rliik to writf a niLiiio- ^ 
 lamlnni of appliiation anil ai iiptami' in tlio 
 liookh of till' iilaiiitiHx for a rf-iim\irani'e of !?'_',- 
 700 ■wliirll was iloili! ; liUt tlie clrrk wlio.sc illlty 
 it was to iniloiMC tlic jiartiiiilars on tlii! opiii 
 Jiolicy i.ssiU'cl liy the iilaintillk, jui'iiari' the eirti- 
 lit'iite, ami rijioit the tiansaclioii in the d.'iiiy re- 
 turn, nniiilentionally oinittid to ilo so, ami no 
 notice of the re-iiiMirance was ^'iven to the plain- 
 tills, until after the loss oeeiiired. After they' 
 hail jiaiil the ln.'^s, the jilaintitls iliseo\ereil the 
 irregnlarity, anil lilnl a hill to rerover the money , 
 as paiil umler a mistake of fait:- llelil, alliiming 
 the iheree of I'.lake, V.C, '.'(i Chy. 'Jd-l, that the , 
 Jilaintitls were not entitled to recover, as theap- 
 plieation ami acei jitanee of the risk were, under 
 the cireuinstanees, sullieieiit to constitute ii hind- , 
 ing contract of re-insur; lice. 'I'ln ('oiiin/a Fin 
 (ijiil JlariiK' 1)1.1. Cu. V. J'/ie ]yi.s/irn Asuunincf 
 Co., n A. 1!. -^44. ; 
 
 On Ist September, 1881, the phiintill's insured I 
 the vessel Alary Merritt for Sr'iOUO lor fifteen ' 
 days, hy aeeeptauee of an application made to 
 them by M. the owner. On the same tlay a meni- 
 unindum was written in the margin of the appli- 
 cation and signed by the manager and secietary 
 of the tlefendant company, that they covered one 
 fourth, subject to survey and a})proval at lirst 
 port of arrival, &e. It was miderstood that there 
 was an allowance of 8 Jier cent, for paitieiihir 
 average. On 4tli April, ISSl, an agreement had 
 been entereil into between the companies umler 
 which tk-fendants were to cover a fourth part of 
 all vessel risks accepted by plaintill's : but it was 
 expressly Jigreetl that the risks coveretl w ere only 
 on hulls of vessels not classed below H. 1. By 
 tlcfeudants Act of Incorporation, ,S5 ^"lct. c. 103, 
 D., all policies, instruments, &c., issuetl or 
 entered into by defentlants, were to be signed by 
 the president or vice-president, and counter- 
 signed by the manager and secretary, or as other- 
 w ise directed by the rules and regulations of the 
 
 company in la.ii' of their alisein'e, and so signal 
 tiny slimihl be denned Valid, iVe: llild, that the 
 plainlills roiilil not nly on llie agieeiiieiit of tin' 
 fourth .'\piil, as it was liniiti'd to vi'hhiIm hot be 
 low h. I. and till' Vessel insured had not been 
 classed ; but tliat the rontrait \\as rontained in 
 the meiiioianiliini written in the margin of the 
 appliialion, and that it was so Higned is to lie 
 binding on tin,' ilefemlants, for that, in the 
 .'ilisiiice of evidenie to the loiitrarv, it must he 
 deiiMi'd to be sii'inil in aeicirdanei! with the riileH 
 ami ri'giilatioiis ol the eomp.iny. Meld, also, (1), 
 ilefemlants as n isiirers were not iMiiind by the 
 plaiiilill's' settlennnt with the owni r or the 
 aci'i ptance ot the notice of abamlonmeiit, and 
 that as to tin in there hid been no tot.d loss and 
 no valid abandoium ut ; CJ) ilefemlants were 
 liable as upon a general average' for expenses in- 
 euiri'd by |ilaintill's as hiiIvois and insurers in 
 saving the ship, alter dediietiiig the proportion 
 to lie lioriie by the owners of the vessel and 
 c.irgi), iVe. ; (.'Ij there was no particular average 
 for u liieh defendants were liable to contribute. 
 The pleadin;.'s wele directed to bo amended 
 aeeoiding to the lindings; and the costs ajipor- 
 tioned. '/7ir I'lmiiij- iiii). Co. v. V7/r Anchor 
 Ins. Co., 4 O. 11., ('. I'. I). .V24. 
 
 (i.'JA/iM.s <;/' i'ri'ijht. 
 
 The plaintiU's «ere insurers of a cargo of grain, 
 ami the ilefcndantH insurers of botli hull ami 
 freight of the vessel, which was owned by .M. 
 The vessel sank during the Voyage ami damaged 
 the grain. Doth the owner and tin; plaintills 
 thought it more iniideiit to take the cargo to 
 r>idlalo, as being iii'ire saleable there than in 
 Kingston, its original destination. .M. however 
 nlused to deliver it to the plaintills until his 
 freight was paid in fill', and the |>laiiitil1s there 
 n|ioii jiaid it, and took an assignment of his policy 
 on the fieight, on which they now sued the ile- 
 femlants. It was found as a fact at the trial 
 that the cargo might have been taken to its des- 
 tination in sjiecie, and the freight earned :— Held, 
 allirming the decision of the Common I'leas, liO 
 C. 1'. f)7, that the [ilniiitills were not entitled to 
 recover ; for their only rights were those of ,M,, 
 w ho had siitlereil no loss for which the defend 
 ants were liable, innsinuch as the freight had not 
 only not been lost by the perils insured against, 
 but hid not been lo.it at all, ho having received 
 it in full. Anclior Marine Ins, Co. v. I'/iirnir 
 I11.1. Co., G A. li. 5(57. 
 
 V. WlNMNIJ LP I.NSLIIANCE COMPANIES. 
 
 An appeal under the Act respecting the w ind- 
 ing up of joint stock companies, 41 \ ict. e. 5, s. 
 U7, O., cannot be entertained when security has 
 not been given within eight days from the render- 
 ing of the final order or judgment appealed from. 
 \\ here a bontl gooil in form with iiroper sureties 
 was tiled with the clerk of the County Court, 
 on the last of the eight days, though not allowed 
 by the judge ;— Held, to be within the words, 
 " given security before a judge," and a suliicient 
 compliance with the Act, though a person thus 
 tiling a bond without allowance, lisks being de- 
 prived of his right of appeal in the event of the 
 bond proving defective. The Act applies to an 
 insurance company incorporated by the Province 
 of Ontario, notwithstanding that R. S. 0.,c. lliO, 
 
 m 
 
:iH!i 
 
 IN'llliKST ON MONKV 
 
 :' -If) 
 
 iii(ivi<I«'s a Brinrntt' iikhIi- (if (lihtriliiitiii^ llu' ili-- 
 |ii Hit iiiikIc l<y the ciitii|iiiiiy witli tlic rMNihiial 
 TrimHiiU'r. An (UiIit tnr uoiii|iulH(ir> wi'.' ii;; ii|i 
 iiiiiy lit' iiiiiilc iiiiiltr ht'i'tioii T), iintw itlihi,,i.iliii^ II 
 rcsdllitioli liail Ix'cn i iibxi'il liy tlir hIiiiii lioldri h cif 
 tliii iMiini'Miiy, [iiiiv iiliiij,' I'di' till' voliintiiiy wiriil 
 iiig u|i •<( tlic iilliiiiH tilt II III iiiiilir till' i-ii|ir\i- 
 MJiiii III the iliu'ctiiiH lit till' 11 III) ni.y, iiini ii cdin 
 inittii' III t-liiiii'liolilt'iH ii]|(iiiliil i<y till III tur 
 that I'liilii HI', 'I liJH nut III iii^ nil I'xin niiliiiiny 
 II Hiihitinii iinilirH. t, huIi h, M, iiiiiIi r tlu'riixiini' 
 t-tiiiucK ii|>| I'lii inK '11 till' jiiil^iiii lit : lli'iil, tliiit 
 tliu iliHi'l'i'tii'li III till' juil^L'a|i| lalrii liilii liail nut 
 It't'ii iiiil'iniii ily L'Xcrt'iBiil. 7i'e I ninii Fiif ///c. 
 Co., 7 A. K. 7«:t. 
 
 Sue alnii Siili-lit'ail I. 
 
 1' 
 
 .'Ci' 
 
 (i. 
 
 II. I.I 
 
 IN'J'KliKST ON MONKV. 
 
 WllKN Al.l.dWI'.H. 
 
 1. (liKintlly, ;{8r>. 
 
 2. I'tviii lyiitit Tiim; 387. 
 
 3. At What Jtiil,; 387. 
 
 4. Oh Jiiilijnii iiIx.— Svv Jl nmiKNT. 
 Tl. (1)1 MiilltJiiijCK,— Sec MliKTIIAlJl':. 
 
 (Ill ^'iilr III' 1.(1 ml.— Siv i>:\\.\: UK I, 
 
 romt calliiij; ii|icin W',, tlii' |irotliiiii(itiiry, tu jiivy 
 
 iiVl'l' till' iuti'li ^tt IIIMMI (i'm. I l'ii|iii|'tli>U III till* 
 
 iiioiii'yH, N\liirli iiiti n ,xl ill. wax inlii'iiiril) liutl 
 liiiii rmivi'il liy till' i.riitliniiiitaiy liniii flu- 
 liiiiik \nIiuu he liail |>lar(il till' aiiiuuiit mi ilu- 
 |nl^it. W . it'HiHtiil tin: ai.|ilii atmn mi tlii' giimnil 
 that III' waM not iili-.\\i lalili' tii thr lil'(i|Tlttiir ot 
 till' pi iiH'i|ial, III' til tin: ciiiirt, I'm' iiitiiiHt, hut 
 iliil not lUiiy that iiitui.Ht hail hi'i ii rui.iii\eil l»y 
 him. A mil' nini naM giantrii hy I hi' loiirt .iiul 
 iiiailc III Kiiliiti', miltriii^ the |iriithmii'taiy tn pay 
 whati'Vi'l' iiiti' iif iutiiiht hi: nii-ivnl in tin- 
 an. mint :- llilil, 'I hat thu | ruthmiutary wa.- 
 iiot ciitithil til any intriiHt whiili tliu an.oiiiit 
 ihpii>itcil iiiiniil whih' uniki tin' imiti'iit nt tin- 
 cmiit. That in uiiUiing tlm pinthmintaiy to 
 pay iiviT till) iiitmi Mt iniivtil hy him, tlm rmirt 
 wuH Himply txi n inin^ the .siiiiiiii.iiy jiniRilii timi 
 w hii'li I'ai Ii iif thu mipiiim- i.oiiitn hnn over all 
 itM iniinciliutii olhrcrH, (Fmiiniii' ami lliiiry, 
 JJ., lUshciiting.) Wilkiun V. <lnl,l,.<, ."i i^.C.R. ^"1. 
 
 AlliiKiiiiiu iif intiiuiit mi 
 CdUit a.*! si.'i-Uiity mi appial. 
 liiK. Co. V. l'iifsiin--t it III, .'{'J < 
 
 iiimii'y paiil iiitn 
 
 .Sci: 'I'lii- ('ili:ill/ 
 
 . r. Ill'-' p. 175. 
 
 - !<A1,I 
 
 C'cii ur 
 
 «IK I,.\Mi IIV Oni KU (IK 
 
 AM' 
 IIIK 
 
 Allll.lTV iiK KXKir'riiK.S A.NII 
 ■I KA riill.S— .SVc KXKl'l KiJi.S 
 MI.NIfS'l'llATDK.S. 
 
 W'llKN Ali.OWKIi. 
 
 I. Uiiii'riilli/. 
 
 All.MLNl.''- 
 
 A.Ni) All- 
 
 in un nt'tioii anaiiist the surf ties iif an abscond 
 iiig asHignce in iiisolveiiey, mi the assignee's 
 honil to the (^iieeii uniler the statute, 
 Wiw eiitercil at the trial fur 5:800, subject to a 
 legal (lUestimi, w liiili was afteiAvaiils ileeided in 
 favmir of tin. plaintill'. It viis agreed by the 
 parties that in case of such a deeisimi, the ainount 
 liir which the veidict should bo entered was 
 ¥700 ;--lli'ld, that the verdict was ...it for a 
 debt or sum certain within It. .S. O. e. fiO, s. ; 
 '.'(iO, and that it should not carry interest from ! 
 its entry. W'uuilnijj'v. Canada Giianiiilei; Co. , 8 l*. 
 11. 53U.— Jlagarty. 
 
 Under 31 Vict. c. 12, and 37 Vict. c. 13, the 
 Minister of rublio \Voiks of the iJoininiou of 
 </anaila appro]iiiated to the use of the Dominion 
 certain lands in Varniouth County, known as 
 "Bunker Island." Jn accordance with said 
 Acts, on the L'nd April, 187r), he paid into the 
 hands of,AV., jirotlionotary at Halifax, the sum 
 of .*(),lhOas cmnpensatii u and interest, as pro- 
 vided by those Acts, to be tliercalter appropri- 
 ated among the .wuers of the said island, 'i his 
 sum was paid at tevcral times, by order of the 
 Supreme Court of Nova Scotia, to one A., as 
 owner, to one ti., as mortgagee, and to others 
 entitled, less ten dollars. As the money had re- 
 niaiiied in the hands of W. , the prothonotary of 
 the couit, for some time, H. attorney for ft., 
 applied to the Supreme Court for an order of the 
 
 25 
 
 On the IHth October, l8(;(i, the lAMicr of real 
 estate giaiite 1 an annuity then out of $40, with 
 power of distrcBs in case of dcl'aiilt. Only one 
 year's annuity was paid, and in ()i tuber, 1877, the 
 grantor, by writing, acknowloilged the animiii' 
 then duo. ' In a bill liied by the annuitant, cluiiii 
 ing ten years' arrears, .vitli iuteiCMt thereon: 
 Held, tliat the power of ilist.'ci'H was not such a 
 penalty us took the ease out of the general riili' 
 that interest will not be iillowed on arrears of mi 
 annuity ; and that uotwithstauiling the written 
 adniissiou by the grantor of the animiut due un 
 del' the deed, the annuitant could nicover oiil> 
 six years' arrears without intercHt, a.s against ,■ 
 puisne iucunibraucer who had duly registiicil 
 iiis uouvuyunee. Cnnif v. ('run., 'J.~i Chy. 4..'i. 
 
 Held, in this case, that the plaintill', who bad 
 
 niaile iniprovenieuts under mistake of title, wa.s 
 
 entitled to interest, from the time the money was 
 
 verdict expended, on the aniount by which the value of 
 
 the property was found to be thereby enhanced. 
 Faiicett V. liiinrill, 'J7 Chy. 44.''). 
 
 Interest may be allowed ou a solicitor's bill of 
 costs, if a demand in wiitiug is made for it. /// 
 ly McClice H al., Svlkilonf, V. K. L'13.-\Vil 
 .sou. 
 
 The axiug ollicer has no power to allow inter- 
 est, unless the matter has been specially referred 
 to iiini by the order for taxation. Ih. 
 
 Held, following Quiulau r. (iordon, 20 t by. 
 App. I., that overcLargea beyond the lawful 
 rate of interest, if paid, eauuot be recovered baek, 
 or applied in reduction of a debt claimed to be 
 due. J/iitlon v. Ftderal Bank, 9 F. R. Ct.8.— 
 Hodgins, Maxtir. 
 
 The circiimstanccs under vhich interest on ii 
 claim ought to be allow ed or refused iu the mas- 
 ter's ofliee cousidereil and acted ou. lit l\viti>, 
 29 Chy. 385. 
 
 After ] aynient by an insolvent's estate of ICO 
 cents in the dollar the creditors claimed interest 
 on their claims out of a surplus in the hands of 
 the assignee : — Held, reversing the decision of 
 the court below, that uotvnthstandiug the pro- 
 \"iBionB of sec. 99 of the Insolvent Act, iutertnt 
 
IBP 
 
 387 
 
 INTERPLEADER. 
 
 388 
 
 
 
 was jiiiyalilr on all ilclits oii;.'iiially ln'iiriiig in- 
 tiMcst liy L'liitraot or othoi'wise, Imt not wliinMt 
 was claiiMalilc hv law as ilaniagL's onlv. //' ''' 
 M(J)n,'j,ill, S A." K. .SO'.t. 
 
 2. From What Tinir. 
 
 Interest allowed from the time when the last 
 call on stock Ijecaine duo. Sou Prurincial Jnn. 
 Co. V. Ctuiic-on, 'A\ C. P. ;?2.'{, ]>. 137. 
 
 Wliere in a sale under a'decree no nndiie delay 
 in invostij,'atin{j; the title is attributoil to either 
 jiarty, intorost upon purchase money is payable 
 only from the <lato of the aocoptauce o*'the title, 
 and not from the time named in the conditions 
 of sale. Il<n;-iwii v. Jo.sij.h./S P. It. '-"•;{.— Ste- 
 phens, I't fiirv. 
 
 Tnteicst on legacy. Sec Tdnmi'ij v. Traciij, 4 
 (). 15. 708. 
 
 ?,. Al ]\ln,t Unte. 
 
 The rate of interest on certain municipal de- 
 bentures was 7 per cent. : — Held, that sec. 217 
 of iit-.SO Vict. c. 51 lias not boon I'opoaled, though 
 Uiarkod efl'oto in the sohodule proiixed to and 
 not re ouaotod in 'M\ Vict. c. 4S, Out., and that 
 the above rate wis therefore lawful. Scn'l'i.-ifi 
 Atiioriciiii J iifr.it )ii('i)t Ct). V. f'orp'ira/loii I'f tlic 
 Vilhinr of Ehii-ri, A. P. (>2S. 
 
 A pawnbroker, under Con. St.at. C. c. fil, may 
 legally charge any rate of intorost tiiat may l)e 
 agreed n])on between him ami the jiledgor. /iV- 
 ij'ina V. Ailaiw, S P. It. 4(!2. — Cameron. 
 
 INTKRXATION^AL BRIDGE COMPANY. 
 
 Held, that the International Bridge Company 
 was under Cauaili in Act, 20 Vict., c. 227, s. I (J, 
 entrusted witli a general and uiujiialiliod power 
 of making liy-laws and regulations as to the use 
 of its . dge and the terms on which it should 
 be use 1 in point of payment ; and that there is 
 nothin,' in sec. 2 of the amending .\ct f22 Vict., 
 e. 124) , vhen road and eonstrued together with 
 the prim. i)ial .Act, which cuts lown that power 
 as to th J regulation of the use of the bridge and 
 as to the terms on which it miy be used by rail- 
 way trains. As to the reasonableness of charges, 
 the principle is not wh it profit it miy be reason- 
 able for a comiiany to mike, but wliit it is rea- 
 sonable to clrirge to the person who is charged. 
 ('aiinild Siiti limi /{'I'lhrni/ Co. v. Iii/i riKiJioiinl 
 
 INTKRPLEADEH. 
 I. When uki-ikf Granted. 
 
 1. To Shi riff, 388. 
 
 2. Bi'livfen Co-Surefwn, 388. 
 
 II. .JcKisDitmoN OF County Court, 388. 
 
 III. Practice, 388. 
 
 IV. Costs, 389. 
 
 V. In Division Courts — See Division 
 Courts. 
 
 I. When Relief Granted. 
 
 1. To Sheriff. 
 
 At the [instance of a shcrin', an interpleader 
 order was granted and issues tried to iletermine 
 the rights of certain claimants to goods seized 
 by him in execution. Previously to the order 
 being granted, the landlord of the premises laid 
 claim to the goods, which claim the shoriH' did 
 not mention wiien applying for the order : — Held, 
 that after the trial of the issues, the sheriff was 
 not entitled to a second interpleader to test the 
 landlord's ehiim, as this shouhl have been dis- 
 posed of on the first application. Clarke v. Far- 
 rcll, 8 P. R. 234.— Dalton, Q. C. 
 
 2. Between Co-Surefie^. 
 
 Qna're whether interpleader is a pro|ier remedy 
 for trying the I'ight to securities as between co- 
 sureties. See Treriee v. Jiurkett, 1 (J. R. 80. 
 
 /iriil/e Co. , 8 App. Cas. 
 28Chv. 114. 
 
 13;S.C., 7 A.R. 22(>; 
 
 See also Thi Altorneii-Gi-iii'ml v. The Interna- 
 tional Hrid'/e Co., 27 Ciiy. 37 ; (> A. R. 537, pp. 
 VA2, 343. 
 
 IXTERNATIOXAL LAW. 
 I. Extradition — See Extradition. 
 II. FoKEiiiN Divorce — See Husband and 
 
 WlE. 
 
 II. JlRISDICTION OF OOUNTV CoCRT. 
 
 Held, that interpleader being a ])roceeding in 
 the action, a County Court .judge under Rule 
 422, O. J. Act, has jurisdiction to entertain it, 
 but in tliiy ease the judge having disposed of the 
 matter '■'■.mmarily without the con.sent of the 
 parties, an issue was directed. ConUun v. Spien, 
 'J]P. It. 491.— Osier. 
 
 III. Praotioe. 
 
 Held, that in case of interpleader by a sherifif 
 between two claimants, one a plaintitTin a Supe- 
 rior Court suit, the other a i)laintiirin a (younty 
 (\iurt suit, the application for an interple.ider 
 order was ])roperly made in the Superior (Jourt, 
 altliough the seizure was made under the County 
 Court writ iiefore the Superior Court writ came 
 into the sheriff's liands. Slrani/e v. Toronto Tele- 
 •jraph Co., 8 P. R. I. — Dalton, Q. C. 
 
 Held, in an interpleader suit, that a married 
 woman was not a proper surety, and time was 
 ' given to substitute .another surety for her. Mil'- 
 I /(•/( V. Paneoe, 8 P. R. 37-.— Dalton, Q. C. 
 
 In an interpleader issue the claimant claimed 
 under his jjurchase from the chattel mortgagee, 
 and the issue was found against him : — Held, 
 that he could not afterwards set up another 
 title in the same issue, but that this was mat- 
 ter for a substantive application to the court. 
 Jiarker v. Lee8on, 1 O. R., Chy. D. 114. 
 
388 
 
 389 
 
 INTIMIDATION. 
 
 390 
 
 ■■■' 
 
 •RT, 388. 
 
 DlVLSIOX 
 
 iitci'pleadcr 
 
 ) (It'tunnino 
 
 (Dods seized 
 
 > tlie order 
 
 eiiiises laiil 
 
 slieriH' did 
 
 ler:— Ifeld, 
 
 ! sheriff was 
 
 • ti) test the 
 
 'e l)eeii dis- 
 
 trkc V. /'((;•- 
 
 O|ior remedy 
 between co- 
 Mi. 80. 
 
 COI'RT. 
 
 roceediiiy in 
 under Hule 
 jutertain it, 
 I)()sod of the 
 isent of the 
 '/( V. iS'/>''"M, 
 
 by ii sheriff 
 Till a Siipe- 
 n a ('ounty 
 nterple.idei' 
 ;rior (Jourt, 
 tlie County 
 ; writ oame 
 oronti) Tde- 
 
 t a marricil 
 il time was 
 
 lier. Mil'- 
 
 Q. C. 
 
 ant claimed 
 mortgagee, 
 im : — Hehl, 
 up another 
 s was mat- 
 the court. 
 14. 
 
 \Yiiere there has been a trial by jury in an 
 interpleader issue directed from the Chancery 
 Division, an application for a new trial must be 
 made to the Divisional Court, and not to a single 
 Judi,'e. Cok V. Caniphi'll, 9 P. 11. 4'.)8.--l{(.yd. 
 
 See Caiiadioii Uanl: of Commerce v. Tauhr, 8 
 r. 1!. 351, infra. 
 
 IX. Costs. 
 
 Several executions from different county courts 
 having been placed in the sheriff's hands : — Hold, 
 (in an interi)ieader ap|)lication to the superior 
 court, th.it all costs, including those of the sheriff, 
 should be taxed on the county court scale. 
 Miisiirrt V. LniisiMf, 8 1*. II. 57.— Dalton, Q. C. 
 .See next case. 
 
 In an interpleailer ma* tor where several writs 
 weie ])laced in the shcriir's hands, one from a 
 couTity court, the others from the superior courts, 
 a successful claimant was —Held entitleil to supe- 
 rior court costs, as against the county court exe- 
 cution creditor: — Held, also, that where all the 
 writs are from county courts, the sheriff is en- 
 titled to county court costs only; but a success- 
 ful party to the issue is entitled to sui>erior court 
 costs. Masuret v. LansdoU, 8 P. It,. 57, remarked 
 upon aiul niddided. Vliq^iM v. Bcniner, 8 1*. 11. 
 181.— Dalton, Q.C. 
 
 A sheriiF having made a seizure of goods under 
 a writ of execution, which seizure the execution 
 creditor had not specially directed, and a claimant 
 t ) the goods having ai>peare(l, the execution cred- 
 itor refused to allow the sheritFto withdraw. On 
 the return of an interpleader summons obtained 
 by the sheriff, the execution creditor abandoned 
 his claim; — Held, that the execution creditor 
 niiglit abandon at that stige of the proceedings 
 uitliout costs, and no (u'dcr was made as to the 
 costs of tlie sherifl'. ('(iiiinliiiii Ihvik of Commerce 
 V. Tad-er, 8 V. R. 351.— (tsler. 
 
 Where a mortgageejelainied all the goods seized 
 l)y a sheriff under execution, but it appeared on 
 the trial of an interpleader issue between the 
 mortgaiiee and the execution creditors that some 
 of the goods seized amounting to one-sixth of the 
 total value were not co .'cred by the mortgage : — 
 Semble, although the mortgagee was entitled to 
 the general costs of the issue, a deduction of 
 one-sixth should be made in respect of the goods 
 as to which he failed. Sri/.tirorlh v. M( rhlrii 
 •Silver I'latiwj Co., 3 C. It., Cliy. 1). 413. 
 
 An execution .'' ir .'?105, issued from the Chan- 
 cery Division, and certain gomls were .seized, 
 which the plaintill" herein claimed, but on an 
 interpleader issi, he failed to establish his 
 claim: — Held, tha., costs on the lower scale only 
 should be taxed by the successful party on tlie 
 issue. The effect of rule "J, (». J. Act. is to apply 
 to all Divisions the practice wliicL existed as to 
 interpleader in the former Common liiiw Courts, 
 plus the special power conferred on these latter 
 courts by 44 Vict. e. 7, <>. And :dl interideader 
 issues involving under !?100, in whatever i )ivision 
 arising, are now to be disposed of bj- reference to 
 County Courts, and costs awarded according to 
 44 Vict. e. 7 s. 3, O. The judge who settles the 
 (luestion ot these interpleader costs may direct 
 what scale shall be followed. Ihndi v. Knice, 9 
 r. 1{. 320.— Dalton, i/tn^cr. — Boyd. Sue the 
 two next eases. 
 
 AVliere execution issued out of the High Court 
 of Justice, 0. P. D., and the sheriff under R. S. 
 (). c. 54, H. 10, obtained an interpleader order, 
 under which an issue between the parties was 
 directed to be tried in the County Court, under 
 44 Vict., c. 7, <>. :— Held, that the sheriff was 
 entitled to his costs under the interpleader order 
 to be taxed on the scale of the court out of which 
 the process under which he seized tlie goods is- 
 sued. .Semble, that the parties to the issue 
 should .also have their costs prior to the order 
 directing the issue on the superior court scale. 
 Beaty o. Bryce, 9 P. R. 320, explained. Arkell 
 elalv. Gehjer, 9 P. R. 523.— Cameron. 
 
 Under an execution issued fi-om the Queen's 
 Bench Division, a slieriff seized certain goods, 
 some of which, v.alned at §110, were claimed by 
 the plaintiff. The master in Chambers, on tha 
 application of the shoriif, directe I an interple;vder 
 issue in the Queen's Bencli Division, reserving 
 the question of costs, which he subse(piently di- 
 rected to be taxed im tlie County Court scale 
 following Hcaty v. Hryce, 9 P. \i. 320 :— Held, 
 (1) That the master's (liscretion, exercised under 
 the jurisdii'ticm derived from, II. S. (). c. 39, s. 
 29, and Rule 420, O. .1. Act, is open to review by 
 an appeal to a judge in C!haini)ers, under Rule 
 427, O. J. Act. (2) That the scale of costs after 
 the issue on an interpleader, must be determined 
 by the scale applicable to the forum in which the 
 issue has to be tried, and before the issue, on the 
 scale of the court to which the sheriff is com- 
 lielled to resort to obtain relief. Beaty v. Bryce, 
 9 P. R. 320, not followed. Christie v. Conway 
 el al., 9 P. R. .529.— Cameron. 
 
 A successful party in an interpleader issue 
 moving for an order liarriiig the execution cred- 
 itors, having given the shcrilF notice of the mo- 
 tion, was ordered to pay the sheritFs costs of 
 appearing on the motion, for such notice is un- 
 necessary. (rBri-ii V. /ittll, 9 P. 11. 494.- Dal- 
 ton, Master, 
 
 IXTERPRETATIOX OF WORDS AND 
 TKRMS. 
 
 See WoiiDS. 
 
 INTKRROCATORIKS. 
 
 See KviDENtE. 
 
 INTKSTATE. 
 I. AmiiNisTH ATou OF — See Executors and 
 
 An.MINlSTUATOKS. 
 
 II. Ad.mim.stratio;'; Suit — See Executors 
 
 ANM) AdMINI'TRATORS. 
 
 III. Sr.VTCTE OF DlSTRnUTKIXS— .Sffi Dis- 
 TRIliL'TION CF EsTATE. 
 
 INTIMIDATION. 
 
 Of workmen— Rcstr.aining by injunction. See 
 IlyiieH V. FMer, 4 O. R. (iO, 78, pp. 37, 348. 
 
391 
 
 JUDG:aENT. 
 
 39a 
 
 1. 1: ;i 
 
 HI* 
 VIC 
 
 \ 
 
 '■■•'I • 
 
 INVESTMENT OF MONEY. 
 
 Held, tliat it is a l)ruach of duty in a person 
 entrusted with nioiu-y to invest on real estate to 
 invest on the securitj' of a second mortgage, un- 
 less with the sanction of the lender, whieli such 
 person must jirove, and wliicli the evidence in 
 this case failed to estalilisli. The value of the 
 property herein was aliout !?1,000 ; the tirst 
 mortgage heiiig for iir.S-o, and the second for 
 §400, taken to the jilaintilf. The borrower was 
 a respectahle mechanic in rec( ipt of good wages, 
 occupying the property himselt, which was situ- 
 ated in the place where all the parties resideil 
 and carried on husincss. The learned judge at 
 the trial found that the defendant was not guilty 
 of negligence so far as the value was concerned, 
 and the court reluscd to interfere. Keniaiksa8to 
 the proper form of declaration in such case, where 
 the defendant was not paid liy the lender but l)y 
 the borrower. Carlo- v. JJutcli, 31 C. 1'. '203. 
 
 Upon the conliicting evidence, set out iu the 
 report, the learned judge at the trial found that 
 the plaintiti had not been informed of the first 
 mortgage, under which the propei-ty was sold, 
 leaving only about )r(iO applicable to the second 
 mortgage. 'J he couit refused to set aside this 
 finding, and sustained the verdict for the plain- 
 tifl'. Jb. 
 
 Investment of money by executors and admin- 
 istrators. See K(lli)i.s v. Killiiix, 29 Chy. 472 ; 
 JiurriU v. Burrilt, 21 Chy. 143. 
 
 II. 
 
 III. 
 
 IV. 
 
 \. 
 
 VI. 
 
 Vil. 
 
 VIII. 
 
 IX. 
 
 X. 
 XI. 
 
 XII. 
 
 XIII. 
 
 IXTliULOClTOKY J II)(;11EN"T, 394. 
 
 Skttinu aside Juijoment, 395. 
 Effect of JuuoiiEST lk Evidence, 39o, 
 
 EsTOfPEL BY iOKWEK JCDtiUEJiT, 30.'). 
 InTEKE.sT on JuDliMKNTS, 397. 
 FoREUiN JrDOMENTS, 307. 
 
 Actions on Judgments, 308. 
 
 Enforcing JruoiiENT of Court ok 
 ArPEAL — .S(c Court of Appe.al. 
 
 Proof of — iSce Evidence. 
 
 On Coonovit— -Vet Fraudulent Judg- 
 ment. 
 
 Fraudulent Judgments — See Fraud- 
 ulent Judgment. 
 
 KeVIVINO JUDGMENT.S— &f SOIRE Fa- 
 ClAS AND KeVIVOR. 
 
 JOINDER OF TAItTlES. 
 
 tSi'i' Pleading. 
 
 I. Entering Judgment under O. J. Act, 1881. 
 
 1. Sirrice of Sotice of Alutiuii. 
 
 'Where a defendant does not appear, notice of 
 motion for judgment must nevertheless be served 
 or posted in the proiier olhee under Hule, 131 O. 
 J. Act. Biunitx. JJi(nluck;i)l'.ii. 101. — I'roud- 
 foot. 
 
 JOINT STOCK COMPANY. 
 
 See Corporations. 
 
 JOINT TENANTS. 
 
 See Estate. 
 
 JUDGE. 
 I. Of County Court— .Vec County Court. 
 II. OfDivi.sion Court — See Dimsion Court. 
 III. In Chamrehs— .SVc Practice. 
 
 JUDGMENT. 
 
 I. Enterin(; Judgment under 0. J. Act, 
 1881. 
 
 1. Sirriee o/' 2\'utii-e. o/' JMotioii, 392. 
 
 2. Under liule So. :S, 302. 
 
 3. Under Hide So. SO, 302. 
 4 Under Rule Xo. SJl, 303. 
 
 5. Under Jink Xu. S:'J, 393. 
 
 6. Under Itide Ko. S.i4, 393. 
 
 7. Other Canes 394. 
 
 2. Under Utde 2\u. 7S. 
 
 An action for foreclosure of a mortgage is 
 governed by Rule 78, and no order allowing ser- 
 vice is necessar}-, and on default of appeaniiice 
 judgment may be entered on piu.'cipe according 
 to the foimer practice in Ch:incery. Oaintber- 
 lain V. ArniMvomj, OP. K. 212. — Boyd. 
 
 3. Under Rule So. SU. 
 
 A writ was endorsed as follows : — " The plain- 
 tifl's claim is for the price of goods supplied.'" 
 The following are the particulars : — " .'?(j21.0(i for 
 money payal)le by the defendant to the plaiutilt' 
 for goods bargained and sold, and sold and de- 
 livered by the plaiiititls to the defendant, and 
 inierest tliereon from the 2r)th of July, 1882": — 
 Held, that the eiulorsement was not a suliicient 
 special endorsement to entitle the plaintiff to ask 
 for judgment under llule 80, 0. J. Act. Lucas 
 v. ii'o.s«, 9 P. R. 251.— Dalton, MaMer. 
 
 The endorsement on the writ was as follows : — 
 " The plaintitl's claim .y-^OOO being the amount 
 of the defendant's overdrawn account with the 
 plaiiititi's' buuk on the 18th September, 1882 ": — 
 Held suliicient. Inqierhd Hank v. Brilton, 9 P. K. 
 274. — Dalton, Mader. 
 
 The writ was emlorsed for the price of land 
 which the plaiiitill' had agreed to sell to tlu; de- 
 femlant. A motion for judgment under Rule8U, 
 O. J. Act, was refused. Such a claim cannot lie 
 specially endorsed. Hood v. Martin, 9 P. R. 
 313. — Dalton, Mauler. 
 
 The power given by Rule 80, O. J. Act, to sign 
 judgment should he most careiully ami sparingly 
 exercised in cases where the defendant makes an 
 atlidavit of merits, and disputes the claim, and 
 
393 
 
 JUDGMENT. 
 
 391 
 
 slioulil ucvcT be exorcised unless it is shewn th:it 
 tlic ]il:iiiititf may be seriously prejiuliced by the 
 <l(ilay iu (iwaiting the ordinary modes of tiial, nor 
 ill any case in wiiich, under the old practice, final 
 jiiili,'inent could not have been sij^ied for want 
 of appearance. On the facts stateil in the report, 
 an order of the Master in Chambers, direutiny 
 tlie tntry of final judgment under such rule, was 
 set aside on appeal. Barber v. RukscU, 9 P. R. 
 433. — Cameron. 
 
 The order for security for costs under Rule 
 431, 0. J. Act, is a stay of proceedings, and a 
 judj,'e has no power to set it aside when once 
 proiiurly issued and si;,'n final judgment under 
 Rule 80, (). J. Act. Th' Bank of Xova Scotia 
 V. LaRor/if, tl al. 9 P. I{. TjOS.— Cameron. 
 
 4. Uudcr Ifiile Xo. 3J1. 
 
 Under Rule 3'21, O. J. Act, the court may, 
 upon motion for judgment or for a new trial, if 
 sati.sfied that it has l)efore it all the materials 
 necessary for finall}' determining the question in 
 di.spute * * give judgment accordingly, but * * 
 Per \Vilson, C J. — Unquestionably that power 
 must be most sparingly and cautiously exercised. 
 SIrirart V. BoiiiKh, 7 A. R. 515. 
 
 5. Under liuk Xo. S:!!'. 
 
 The defendant in an action on a judgment ob- 
 tained in Iowa, U. S. A., pleaded denying the re- 
 covery of the judgment. Upon a, motion for judg- 
 ment under Rule 32'2, upon the pleadings veri- 
 fied liy allidavit, and the prodiiction of an ex- 
 em|ilification of the judgment : — Held, affirming 
 the opinion of the master, that judgment couhl 
 not he ordered on these materials under Rule 
 322, the defendant liaving put the judgment dis- 
 tinctly in issue. In ))roceeding under the Rule 
 322 It is not sullicient to produce a ilocument 
 on which the plaintiff relies, without any proof 
 to connect tlie defendant with it or to support 
 its gonuiness. lliueberi) \. Turner, 2 O. R. , Q. 
 B. J ). 284. 
 
 In an action for the recovery of land the plain- 
 tiff may o))tain an order to sign final judgment 
 under llule ,322, upon an admission of the de- 
 fendant in his examination. Trnxt and Loan 
 Co. V. //;//, 9 p. R. 8, -Dalton, .Master. 
 
 G. Under Hide Xo. 3U. 
 
 The judge sitting in Chambers has no juris- 
 diction to order judgment to be signed under 
 Rule 324 (a), but a motion for judgment there- 
 under nuist be made to the court. Morrison v. 
 Till/lor, 4G Q. H. 492. 
 
 Wliere it appears that defendant has no de- 
 fence, and has made, or is intending to make a 
 fraudulent disposition of his i)roperty, or is so 
 dealing with it as to embarrass the plaintiff in 
 reaching it by execution, the court will, on 
 motion, under rule 324, upon a prop, r case being 
 made, order judgment and immediate execution. 
 In the event of other executions being obtained 
 against the debtor's property before the time at 
 which the plaintiff would be entitled to issue 
 executions as on a judgment iu default of ap- 
 pearance, and the amount realized being insulfi- 
 
 : ciont to satisfy all parties, a ratable dirision 
 I .should be made. Kinhieh v. Morton, 9 P. R. 38. 
 I — Osier. 
 
 Where there were cross-actions, in one of 
 
 which a sum had been re|)orted due and a claim 
 
 of set-off had been disallowed, in a subsequent 
 
 action brought to reccver the sum disallowed, 
 
 i the plaintiff was hold entitled to move for judg- 
 
 j ment under Rule 324. Rut the atiidavits filed 
 
 '' on the motion being condicting: — Held, the action 
 
 j must be entered for trial at the sittings for the 
 
 ! examination of witnesses, but the amount found 
 
 ! due in the first action was ordered to be paid into 
 
 ' Court, to abide the result of the second action. 
 
 Franei.1 v. Frun<:i-<, 9 P. R. 209.— I'roud foot. 
 
 In an action for the rectification of a deed ami 
 for a declaration that the plaintiff' was entitled 
 to a right of way, and for an injunction restrain- 
 ing defendant from interfering therewith. The 
 endorsenu'.nt stated the relief claimed. The de- 
 fendant who did not .appear within the time lim- 
 ited, subsequently entered an appearance, but 
 didnot serve any notice thereof : — Held, onmotion 
 for judgment under Rule .324, O. J. Act, that a 
 statement of claim must be tiled. Hunter v. 
 Wikockmn, 9 P. R. .305.— Ferguson. 
 
 A person of the same name as the defendant 
 served by mistake with the writ in the action 
 was held entitled to his costs of opposing a mo- 
 tion for judgment under Rule 324, O. J. Act- 
 LHca.t\: Fra.-icr, P. R. 309.— Osier. 
 
 7. Otiier Case.*. 
 
 When an action is commenced in a local office, 
 judgment for default ..£ appearance or pleading 
 must be entered in the local office. Chamber- 
 lain v. ArmMronij, 9 P. R. 212.— Boyd. 
 
 An action was transferred from the Chy. Div. 
 to the C. P. Div. by an order of the judges, but 
 the plaintiff not having notice of the transfer 
 signed judgment in the Chy. Div. An order 
 w.is made retransferring the case to the Chy. 
 Div., and allowing the judgment entered to stand 
 and l)e in force from its entry, without costs. 
 Patterson v. Murphy, 9 P. R. ,306.— Dalton, 
 Master. 
 
 Whore the only property the defendant owned 
 was the equity of redemption in certain lands, on 
 motion for judgment for the amount of the plain- 
 tiflTs claim and for a decree for sale of the equity 
 of redemption ; — Held, on the authority of Kerr 
 r. Styles, 26 Chy. .309, that the plaintiff could 
 have judgment as asked notwithstanding th.at in 
 this case there were no fi. fas. in the sheriff's 
 hands. Johnson v. Bennett, 9 P. R. 337.— Proud- 
 foot. 
 
 II. Intkrlooitory Juuomknt. 
 
 Held, that in an action commenced by a writ 
 not specially endorsed, where the defendant does 
 not plead to the declaration, the plaii. --ust 
 sign interlocutory judgment against the defend- 
 ant before he is iu a position to serve notice of 
 trial and assessment of damages. Fcnwick v. 
 Donohue, 8 P. R. 116.— Dalton, Q. C. 
 
 See also, Johnston v. Christie et al., 31 C. 1'. 
 358. 
 
395 
 
 JUDGMENT. 
 
 396 
 
 III. SF,TTiN(i Aside JcDOMENT. 
 
 •UC 
 
 
 Scmlilc, tliu (iiicstioii of the validity of <a jiulg- 
 uiciit should not he argued on tlic return of ii 
 garnishee tiuniUKJUH, but tshould lie ruiised on an 
 application to set uhide the execution. Elliot v. 
 Copel/, 1'. II. :{.").- iJalton, il/«,v/«r. — Osier. 
 
 Twenty-two months after judgment had been 
 signed in an action en pronii.sKiry notes for want 
 of a plea and execution issued, and the detendant 
 examined as a judgment debtor, leave was re- 
 fused to set aside the judgment, iuid amend the 
 declaration by charging the defendant with 
 fraud, within the meaning of the Insolvent Act 
 of 1875. LU,,hll,i.uml v. //;//, 9 V. 1!. '295.- \h\\- 
 ton, MuMir. 
 
 See Rjiin, v. /'/VA <t ah, 9 P. \\. 4r8, ji. 227. 
 See also W'dlson v. K</<-/nnii, 2 O. It. 2.S7 ; Cof- 
 poralioii of Toirn (>/ Diiiidas v. Oilmoiir <t al., 2 
 O. R. 40.1. 
 
 IV. EkKECT of JUIHIMENT IN EVIDENCE. 
 
 D., the purchaser of laud, gave a mortgage 
 thereon to secure )iart of the purchase money, and 
 subseijuently allowed taxes to accumulate on the 
 laud, which was .sold in order to rcali/c such taxes 
 when D. bought it and obtained the usual deed 
 to himself. IX having made default in payment 
 of the mortgage, proceedings at law were institu- 
 ted thereon, pending which 1). conveyed this and 
 other property to liis two sons, wlu) gave a moi't- 
 gage back securing the snppfirt and maintenance 
 of D. and his wite, anil the plaintill", after recov- 
 ering judgment, liled a bill impeaching the trans- 
 action for fraud : — Held, (1) that upon the evi- 
 dence the transaction was fraudulent and void as 
 against creditors ; (2) that although ordinarily 
 the production of the exemplilication of a judg- 
 ment at law is admissible, and has been generally 
 received as evidence of a debt due the plaintiff 
 against all parties in suits under the statute of 
 Elizabeth, yet that the judgment so recovered 
 by the plaintitV against D. was not evidence 
 against the sons, being res inter alios judicata. 
 Allan v. McTav^h, 28 (.'hy. 539. See S. C, 8 
 A. R. 440. 
 
 V. ESTOITKL UY FoKMEU JUDtiMENT. 
 
 Where a judgment has been recovered for a 
 debt without fraud being charged under s. l.SO 
 of the Insolvent Act of 1875, the plaintilF is 
 barred by such recovery from bringing another 
 action against the debtor charging the fraud, 
 even although the judgment was recovered by 
 default, for the plaintiff might have declared, 
 averring such fraud, and ha<l the (question tried. 
 Liyhtbouml v. Jlill, 32 C. V. 249. 
 
 Effect of judgment in appellate court wheic 
 the judges were e(juallv divided. Seoy» re Hull, 
 32 C. P. 498; 8 A. R. 135 p. 178. 
 
 A judgment in favour of the plaintiff in an 
 action for trespass to lands upcui pleas (amongst 
 others) of lands not plaintiff's and liberum tene- 
 inentum, is not a complete estoppel, preventing 
 the defendant in another suit, from questioning 
 the plaintifl's title to any part of the lands. The 
 judgment is only an estoppel with regard to the 
 title of that portion of the laud upon which it 
 
 had been shewn that the defendant liml tres- 
 passed, flintier V. Biriicij, 27 Chy. 204. 
 
 S. being the holder of two mortgages, brought 
 ejectment thereon, when the genuineness ol the 
 signatures to the instruments Mas disputed, not- 
 I withstanding which he recovered judgnicnt in 
 ! that action, and subsecjucntly instituted proceed- 
 i ings in this court seeking to obtain a sale ot the 
 mortgage premises and the usual order for deti- 
 j cieiicy. Owing to the extremely contradictory 
 j evidence adduced at the hearing, the court 
 [Spragge, C.,] refused to make the decree as 
 asketl, holding the evidence insullicicnt to e.'-tub- 
 lish the execution of the mortgages, as the plain- 
 till' was bound to do, and dismissed the bill, with 
 costs ; but without prejudice to S. liliiig another 
 bill if so advised, witliin twelve months from 
 the date of that (lecree. After the lapse of more 
 than twelve months the moitgagor liled a l)ill 
 seeking to have the mortgages delivered up to bo 
 cancelled : —Held, that if the strict construction 
 of such decree was that the point was res judi- 
 cata it was erroneous, and the court (Sjiragge, 
 C.,) refusing to enforce it in this proceeding by 
 making a decree in favour of the plaintill', dis- 
 missei' the bill with costs. Mitcltdl v. ,Slr(itliij, 
 28 Chy. SO. 
 
 A former suit'hadbcen instituted by the plain- 
 till' which had been dismissed, as the plaintiff 
 had not accpiircd the legal estate until alter the 
 bill was tiled : — Held, that under such circum- 
 stances the (juestion was not res judicata. Ad- 
 amsoa v. AdaniKOii, 28 Chy. 221. 
 
 On proceeding with the reference under the 
 decree pronounced on the healing, as reported 
 
 28 Chy. 35(i, the Master by his report found that 
 there was due to the plaintill .'51,104.99, which 
 included a sum of .S171.32 costs incurred in the 
 suit brought by him to redeem : — Held, on ap- 
 peal, — atlirming the report of tlie Master — (1) 
 that the plaintiff was entitled to claim the costs 
 
 I so incurred, that proceeding having been taken 
 in reality in defence of his rights as owner of an 
 e((uity of redenijition with the concurrence of C, 
 tlirough whom the apjuillant claimed— and. (2) 
 that neither of the defendants could dispute the 
 findings in that suit, but were estopped from 
 (juestioning the amount found due therein to the 
 same extent as .larvis under whom they claimed 
 would have been, the proceeding being not in 
 respect of a matter collateral to the mortg^igo in 
 ([uestion in that suit, but virtually upon the 
 same instrument, and that therefore the rule as 
 to estoppel by deed applied. I'icrce v. Cuikivuii, 
 
 29 Chy. 32. 
 
 An action will not lie against an incorprirated 
 bank for breach of warranty on the sale of a 
 horse-powermachiiie. In an action in the Division 
 Court against tlie now plaintiff, on notes given 
 by him ;'or the price of a machine, the (picstiou 
 of the warranty was tried and decided against 
 the now plaintiff : — Held, that the matter was 
 res judicata, and the judgment m the Division 
 Court was therefore a good defence, by way of 
 estoppel, to the present action, lindford v. The 
 MerchmiU Batik, 3 O. W., C. P. D. 529. 
 
 See Daridson v. T/ic Uelliville uiid yorlh I/ant- 
 bii/x If. W. Co., 5 A. H. 315 p. 1(18 ; Niinlvr v. 
 Vanxtoiw, 7 A. R. 750, p. 217. /iV Donovan— 
 Wilson V. Bmlty, 29 Chy. 280 p. 45 ; Bank of 
 Montreal v. IJaifner tt al., 3 O. R. 183, p. 148. 
 
39G 
 
 397 
 
 JURY. 
 
 308 
 
 t liml tivs- 
 204. 
 
 fs, brought 
 
 Ufxs ol' the 
 
 Iplltfd, luit- 
 
 ulgiiifiit iu 
 
 ;ud ijnicceil- 
 
 salu (it the 
 
 cr lor iloK- 
 
 iitrailictory 
 
 the court 
 
 (leci'L'u aa 
 
 lit to e.-^tah- 
 
 >s tlie plaiu- 
 
 le liill, witli 
 
 iig aiKithur 
 
 iitlis Irum 
 
 jiiso of more 
 
 tilod a hill 
 
 red up to ho 
 
 oustructiou 
 
 lis res judi- 
 
 •t (Spi-ajigu, 
 
 iccudiug hy 
 
 laiutitl', dis- 
 
 V. Slrathy, 
 
 liy tlicjilain- 
 the jjIaiiititF 
 til alter the 
 ucli circum- 
 licata. Ad- 
 
 under the 
 as reported 
 t found that 
 M.O'J, which 
 lurrud in the 
 Hehl, on ap- 
 Master— (1) 
 ill! the costs 
 ; been taken 
 owner of an 
 rrence of C, 
 ed— and. (2) 
 dispute the 
 topped from 
 lierein to the 
 liey claimed 
 being not in 
 mortgage in 
 y upon the 
 ! the rule as 
 V. C'diitifdii, 
 
 iicorparated 
 ic sale of ii, 
 the Division 
 notes given 
 ;he ((ucstioii 
 ded against 
 matter was 
 ;he Division 
 ', by way of 
 If'ord V. The 
 
 Xort/i Had- 
 ; //iiiilvr V. 
 Duinnan — 
 ) ; liavk of 
 S3, p. 148. 
 
 VI. Intkbest on Judgmento. 
 
 Section 43 of the Court of Appeal Act, which 
 jirovidts "when on an appeal against a judgment 
 in any action personal, the Court of Appeal j.i vis 
 judgment for the respondent, in tertst shall lie 
 allowed by the Court for such time as execution i 
 has been delayed by the appeal, " does not apply 
 to a ease where the judgment of the court below 
 is in favour of the defendant, and is reversed on 
 appeal. Jn such ease the court, on reversing the 
 judgment, gave liberty to the iippellant, the jilain- 
 titt in tlie court below, to move to be at liberty 
 to enter judgment as directed by this court, 
 nunc pro tunc, whereby he would be enabled to 
 recover interest on the amount of the verdict ren- 
 dered in his favour. Qu'inlan v. i'n'wn Fire Jnx. 
 Co., 8 A. 11. 37G. 
 
 [See 47 Vict. c. 10, s. 4.] 
 
 VTI. Foreign Judgmest.s. 
 
 Under 22 Viet. c. 5, s. 58, consolidated in C- 
 8. L. C. c. 83, s. 53, sub-s. 2, a judgment may 
 be recovered iu the Trovince of Quebec, on a 
 persoi al service in Ontario, in an action in which 
 tlie cause thereof arose in Quebec, so as to ren- 
 der such judgment conclusive on the merits. A 
 note made in Ontario, payable at a pari'cular 
 place iu Quebec, is a, contract decmed|to be i. 'ule 
 in Quebec, the place of performance, and uiu er 
 C. S. C. c. 57, 8. 4, is payable at the placj 
 named therein, the C S. U. C. c. 42, refjuiriiig 
 the use of the restrictive words, " not otherwise 
 or elsewhere," applying only to notes made and 
 payable in Ontario. The note in this case was 
 made in Toronto, payable at the Mechanics' 
 Bank, Montreal, and was sent to Montreal, and 
 there held until maturity, when it was piesented 
 for payment and dishonoured : — Held, that the 
 contract being performable in Quebec, and the 
 bre.ich occurring theie, the cause of action arose 
 there, so as to bring the defendant within the 
 operation of 22 ^■iet. c. 5. s. 58, and to make a 
 judgment recovered against him in Quebec, on a 
 personal seivice in Ontario, conclusive on the 
 merits ; and the defendant was therefore jire- 
 cluded from setting up a defence on the merits, 
 and was allowed to except to the jurisdiction 
 only. Court v. iScott, 32 C. P. 148. 
 
 The plaintiflf sued the defendant on a foreign 
 judgment for $240, and specially endorsed this 
 amount upon the writ of summons. He obtained 
 judgment in default of appearance : — Held, that 
 the foreign judgment was not a li(juidated or 
 ascertained anxmnt within the meaning of 1{. !S. 
 0. c. 50, s. 153, and that the plaintiff was en- ■ 
 titled to Superior Court costs. Darid.ton v. 
 Camnoii, H P. 1\. 61.— Dalton, Q. C. 
 
 To an action on a foreign judgment, the de- 
 fendant \i eaded that he was not at the time of 
 the commencement of the action or previously 
 resident or domiciled within the jurisdiction of 
 the foreign court, or a subject of that country, i 
 »)d that he was not served with process in the '. 
 ..^J.'ii, and had no uotice of it or opportunity of 
 defending himself. On motion to strike out such 
 defence as false defendant adi..,tted in his exam- ; 
 ination that he had heard of some claim being 
 niade by the plaintiff, through a letter from his 
 brother living in the United States, that he wrote 
 to his brother to employ some one to attend to it. 
 
 and sent a statement of that matter to him, but 
 that he never lieaul of the actii.n (ir trial until 
 after judgment, when he was infoinied of it, and 
 that his property in the United .*^tates had been 
 attached to pay it. It ajiicnrid that an appear- 
 ance had been entered foi ;.!ni there by a firm of 
 lawyers. The ajiplication was refuMd. Schibs- 
 by r. Westtnholz, L. It. <; Q. P. ir5, followed, 
 Bca/i/ v. Crommll, •» P. K. 547.— Winchester, 
 J-idji.-itrar. — A i n lou r. 
 
 See llcmbcry v. Tiirinr, 2 0. R. 284, p. 393. 
 
 VIII. Actions on JrixniKSTs. 
 
 .See Btntij v. Crowinll, [) P. I{. .")47, 
 Ihmhcry v. Tmiin; 2 O. I{. 284, p. 3!)3. 
 
 xtipra 
 
 JURISDICTION. 
 1 . Of Courts— .S'w- Thkir Several Titles. 
 II. Of Jlikje in Chami!i;i!s— .SVr Pkactile. 
 III. Of Master — .S'w Practke. 
 
 JURY. 
 
 I. I.v Civii. Cases. 
 
 1. Jury Xutirc, .■>'J8. 
 
 2. (Jucxtiiiii.t SufiiiilNcd to and Findliujn In/ 
 
 Jury, :mi 
 
 3. Atincx.wifiit of Damaiji'.t, 400. 
 
 4. Witlidraical of Juror, 400. 
 
 5. Verdict — Stc Virdict. 
 
 II. In C'riiMinal Ca.se.s- -,Sie CkisunalLaw. 
 
 I. In Civil Casks. 
 
 1. Jury yoticc. 
 
 With his joinder of issue, the pl.iiiititl' served 
 notice of trial for the (. hancciy sittings. Defen- 
 dant afterwaids served a .similiter and jury no- 
 tice:— Held, that the similiter and jury notice 
 were goo<l, and that the notice ol trial must be 
 set aside. McLunn v. JlvCuaiij, 8 P. K. 54 — 
 Dalton, Q. C. 
 
 In ejectment where equitable issues are raised 
 under It. S. O. c. 50, s. 257. the issues must be 
 tried w'thout a jury. Bri/oii v. Mitr/ull, 8 P. 
 K. 302.- -Dalton, Q. C— Armcmr. 
 
 The plaintiff joined issue upon defendants' 
 pleas, and at the same time liled a similiter, 
 without a jury notice, for the defendant. After- 
 wards the defendant liled a second similiter, and 
 with it a jury notice : — Held, that the defendant 
 should have liled a jury notice with his pleas; 
 that the lirst similiter was good, that the second 
 was unnecessary, and must, together with the 
 jury notice, be struck out as bad. J/'/dc v. Cus- 
 vica, 8 P. R. 137-— Dalton, Q. C. 
 
 An order directed the trial of an issue in an 
 interpleader matter. The plaintiff served the 
 issue but did not serve with it a jury notice as 
 re(juiretl by R. S. O., e. 54 s. 4. He subsecjuently 
 served a jury notice with the notice of trial. The 
 
399 
 
 JUSTICES OF THE PEACE. 
 
 400 
 
 
 
 r 
 
 
 defenilant iliil not aj)|)C!ir at the trial, and a ver- 
 dict was rendered for the jdaintiff, who after- 
 wards obtained, (on notice), in Cliambers an or- 
 der for coats ; — Held, on appeal affirming this or- 
 der, that the verdict obtained on the trial by a 
 jury was not a nullity, but only irregular, and 
 not being moved against promptlj' should stand. 
 Leennii V. Lrnion, !) 1*. R. 103. — Boyd. 
 
 • Held that an action to set aside a conveyance 
 ooidd, previous to the (). J. Act, have been 
 brought in the Court of Chancery only, and the 
 defendant had therefore no right, as of course, to 
 have the action tried by a jurj'. ^Vllile under 
 the old Chancery Act (1{. S. O. c. 40, s. 00) the 
 court might direct an action to be tried by a 
 jury upon notice ind Ui' 1 cause, yet this 
 
 could only lie do,,i- by iit.and not by a 
 
 judge or master in c'l ii. I i . :■ irloinv. Beck, 
 OP. H. 2(i8.— ratteri-n: . 
 
 In cases in which, before the O. J. Act the 
 (,'ourt of Chancery h.i ' jxolnsive jurisdiction, a 
 jury notice is irregular and '1 be ' V out. 
 Vowanluck v. Manit, 9 1M{. 270.— Dalton, il/i.'uV; 
 
 Where the cause of action was one of a purely 
 common law character, and none of the defences 
 or replies ])rcsented issues of a merely e(juitable 
 ch;ira;ter, Boyd, C. , reversed the order of a local 
 master, striking out the defendant's jury notice. 
 Bank of BrilUh North Aiiifrka v. Echh/, 9 1'. 11. 
 4CS. 
 
 If it were shewn that there was likely to be a 
 great coinplexitj' of facts: — Semble, that such an 
 element alone would not bo areasonfor dispensing 
 with a jury in a common law cause of action. lb. 
 
 2. QnfisfioHH Suhmit/cil to and Fiiidiiii/t hi) Jiiri/ 
 
 Held, that under R. S. O. c. 62, s. 10, any 
 evidence adduceil by a party interested against 
 an executri.x cf)rroborating the evidence of the 
 interested party in any particular, must be sub- 
 mitted to tlie jury as sufficient in point of law, 
 the weight to be attached to it in point of fact 
 being a matter for their consideration. Parh-r 
 V. Parker, "AiC. P. 113. 
 
 In an action a[,'ainst a railway for injuries 
 caused by a collision at a crossing, the jury in 
 answer to the question, "If the plaintiffs had 
 known that the train was coming would they 
 have stopped tlieir horse further from the railway 
 than they did," said " Yes:" — Held, tluit though 
 this was not very detinite, yet taken with the 
 eyidence on which the jury acted it was suHicient. 
 Roticn/icri/ir ft al. v. The Grand Trunk Py. Co., 
 32 C. P.'349. 
 
 Where a (piestion was not pnt to the jury until 
 after they had rendered their verdict and answer- 
 ed the other questions submitted to them, and 
 after the learned judge had been moved for 
 judgment upon those answers, but it was done 
 while all the parties and tlieir counsel were pre- 
 sent and before the jury had left the court 
 room ; — Held, that the question had been 
 properly put. McLaren v. The Canada Central 
 By. Co. 32 C, P. 324. 
 
 The judge is not bound under the O. J. Act 
 to submit questions in writing to the jury. Lett 
 V. The St. Lawrence and Ottawa Pi/. Co., 1 0. R., 
 Q. B. D. 545. 
 
 Held per Patterson, J. A., that it was not im- 
 proper to leave to the jury the (juestion whether 
 the amount in this case was ascertained by tlie 
 act of the parties. Watson v. Sercrn, G A. R. 5,")9. 
 
 The R. S. O. c. 50, s. 2(54, makes it imperative 
 upon the jury to answer (piestions submitted to 
 themand prohibits them fromgivingagoneral ver- 
 dict instead. I?ut the judge after havingput ques- 
 tions, may, neverthelcsa, in his discretion receive 
 a general verdict. Fiirlonij v. Car roll, 7 A. R. 14."). 
 
 The new system of calling upon juries to reply 
 to specific questions considered and discussed, 
 and, per Hagarty, 0. J., iiuestioned. The Canada 
 Central Py. Co. v. McLaren, 8 A. 1!. 5(>4. 
 
 3. AMe.i.wient of Daniaf/('<. 
 
 Held, that inanaction commenced by a writ not 
 specially endorsed where the defendant does not 
 plead to the declaration, the ])laintill' must sign 
 interlocutory judgment against the defendant 
 before he is in a position to serve notice of trial 
 and assessment of damages. Fcnwirk v. Doiin- 
 hue, 8 P. R. lie. 
 
 4. Withdrawal of Juror. 
 
 The withdrawal of a juror at the trial has the 
 effect of concluding the suit, and with it, of de- 
 termining the whole cause of action. Flake v. 
 Claiip, 8 P. K. ()2.— Dalton, Q. C. 
 
 JUSTICES OF THE PEA( 'K. 
 
 I. Qualification and Appointment, 400. 
 
 II. ScMMAiiv Proceedings iiefore Maois- 
 THATK, 401. 
 
 III. Jl'RISUICTION. 
 
 1. DU(iunlifiratiou by Peanon of Interest, 
 
 401. 
 
 2. Onxlimi J urUdiction by Claim of Title, 
 
 401. 
 
 IV. CONVII'TION. 
 
 1. Form and PeqiUKiten of, 401. 
 
 2. Amendment of, 403. 
 
 3. Memorandum of Conriction, 403. 
 
 4. Quashing, 403. 
 
 5. ApfieaU from— See Session.s. 
 
 6. Certiorari to bring up Convictions — See 
 
 Certiorari. 
 
 V. Warrant jor Arre.st, 403. 
 
 VI. Proceedings against and Liability ok 
 Magistrates, 404. 
 
 VII. Sessions— .S'«? Sessions. 
 
 1. QnALIKIC.\TION AND APPOINTMENT. 
 
 Held, that the Legislature of the Province of 
 Ontario had power under No. 14 of sec. 92 B. N. 
 A. Act to pass R. S. O. c. 71, providing for the 
 qualification and appointment of justices of the 
 peace. Pegina v. Bennett, 1 0. R., Q. B. D. 445. 
 
400 
 
 401 
 
 JUSTICES OF THE PEACE. 
 
 402 
 
 pas not im- 
 )ii whether 
 led by thu 
 A. R'. 5.-)!). 
 
 i 111 pe rati ve 
 bmitteil to 
 foneralvcr- 
 
 put ques- 
 tion receive 
 
 A.R. 145. 
 
 ios to reply 
 liscussed, 
 
 The. Canada 
 .5()4. 
 
 y a writ not 
 lit does not 
 must sign 
 defendant 
 ;ice of trial 
 ■k V. Doiiit- 
 
 ial has the 
 ;h it, of de- 
 . Flake V. 
 
 'K. 
 
 r.MENT, 400. 
 ORE Ma<!I.S- 
 
 of IntercM, 
 liiii of Title, 
 
 »1. 
 '/, 403. 
 
 N.S. 
 
 'ictions — See 
 
 lABILITY OF 
 
 rsiKNT. 
 
 Province of 
 !C. 92 B. N. 
 ling for the 
 tices of the 
 . B. D. 445. 
 
 IT. .StTMttf ARr PRoaETKrilVriS BEFORE 
 MAOrSTRATB. 
 
 The defendant was convicted of a common as- 
 sault, uiJDU tlie complaint of the prosecutor, who 
 verhally requested the magistrate to proceed 
 summarily :— Held, that the re(|uest to proceed 
 summarily need not be in writing, licqina v. 
 Smth, 46 Q. B. 442. 
 
 TIT. JURI.SPICTION. 
 
 1. D'is'/iinlijimtwii h;/ Reason of IiUerest, 
 
 '^^vo of t'le four conviotinw justices were 
 lie.iined auctioneers for the county, and per- 
 sist ' I iusittin:; after objeotiou taken on account 
 of interest, thou^'h the case niif;ht have been 
 (lisp ised of by ouo justici; :— Held, that they 
 were <lisqualified, and in (juasliint,' the conviction 
 on that qround also, the court ordered them to 
 pay oosts. /^^/i;i(^ v. C/fipm tn, 1 O. R., Q. B. 
 D. .5^2. 
 
 " unlawfully and maliciously cut and wound ouo 
 M'lry KuUy, with intent tiien and there to do her 
 1,'riovous bodily harm " :--Frold, tliat tlio addi- 
 tion of the words, "with intent to do grievous 
 bodily harm," did notvitiatj the conviction, and 
 that tlie prisoner mii^ht be lawfully convicted of 
 the statutory misdemeanour of malicions wouiul- 
 iui{ : — Hold, also, that imin'isonmont at hard 
 labour for a year was properly awarded under 38 
 Vict. c. 47. liegina v. Boucher, 8 P. R. 'Id.— 
 Hagarty. 
 
 Tiio dt'fonilant was convicted before a niani- 
 strato, for t'lat he "did in or about the mnith 
 of .Tune, ISSf), on various occasions," commit the 
 offence ch iriji'd in the information ; ami a line 
 was inllictod "for his said off jii co ";— Hold, 
 that tlie Ci)nviction was bid, und ir 32-33 Vict, 
 c. 21, s. 2."), D., as slicwini' the commission of 
 
 more than one offence. 
 R. 418-\Vils(m. 
 
 lli-'fiiui V. C/eiinan, 8 P. 
 
 2. Oinfi/ij Jnr'i'tdklhiii hij Olahn oj Title.. 
 
 Wliero the defendants had been convicted, 
 under 32-33 Vict. c. 22, s. (iO. of trespass to 
 land, and it .appeared on the evidence, before the 
 magistrate set out in the report of the case, that 
 there was a dispute between the parties as to the 
 ov,-nership :— Held, that it was a case in which 
 the title to land came in question ; .and that the 
 defendants had been inijiroporly conviotod, even 
 tliii'igh tli'j ma,'istrite did not believe that the 
 dcfoiidaiit liad a title, it not bainc; within his 
 province to decide on tlie title, but merely on 
 the ','00 1 f lith of the parties alle,:,'in'4 it. lie'/iiin 
 •V. DciKittiyn ef al., 4') Q. ]i.0\. 
 
 The defendants were convicted of a trespass 
 und;r C. S. U. 0. c. 10."), as amended by 25 Vict. 
 c. 22. They appealed to the sessions, which 
 atfirmoil the conviction. The conviction was 
 then brouylit into this court, and a motion was 
 made to c(u ish it on the ground of want of juris- 
 diction in the convicting justice, inasmuch as it 
 appeared by the evidence, aii<l by affidavits filed, 
 that the defendants acted under a fair and 
 reasonable supposition that they had the right 
 to do the acts complained of within the 
 meaning of tlie .above statutes i— Held, that that 
 was a fact to be adjudicated upon by the con- 
 victing justice upon the evidence, andi therefore, 
 that a certiorari would not lie for want of juris- 
 <licti.pn. Re;iina v. Malcolm et al, 2 O. R. , Q. B. 
 I). 511. 
 
 IV. Conviction. 
 
 1. Form and liequmtes of. 
 
 A c(mviction must be under seal. In re Ryer 
 and Plown, 46 Q. B. 206. 
 
 The conviction .adjudged payment of a fine and 
 costs, and in default imprigonnient : — Held, 
 good ; and that it was not necessary to order 
 that a distress warrant to compel payment of 
 the fine should be issued before imprisonment. 
 Reivnn v. Smith, 46 Q. B. 442. 
 
 On motion to discharge a prisoner on habeas 
 corpus on conviction before a police magistrate, 
 the conviction charged that the prisoner did 
 26 
 
 The oriLfinal conviction was for "acting in a 
 disorderly manner by fighting, and breaking the 
 I peace, contrary to the by law and statute in that 
 behalf ;" imprisonment with hard labour was 
 imposoil in default of payment of the Hue, and 
 the costs wore made payable in the .alternative 
 to the magistrate or the pros 'cutor : — Held, iiad. 
 Reijini V. Wa-ihin;iton, 46 (J. B. 221. 
 
 A by-law of a town jirovided that no one 
 should us(! any wag^'on, &:., npnn any of the 
 streets of the town for drawing )>ricks, stones, 
 itc. , when the weight of the load should exceed 
 1500 pounds, unless the tires of the wheels were 
 of a specified width, but tlie by-law was not to 
 apply to any w.aggon convejMnglllmber or goods 
 from the mill or manufactory tli-ireof into tlie 
 town if distmt more than two miles from the 
 town limits, nor to any person iiissiii'.! through 
 the town in vehicles loaded with the said articles : 
 — Held, bad, as discriminating agiinst residents 
 of tlio town in favour of others :— Held, also, 
 that a conviction under such by-law was bad for 
 not shawin::; that defend uit was not a person 
 jiassing through the town, and for imposing im- 
 prisonment with hard labour. Rc'/ina v. Pip", 1 
 0. R., Q. B. D. 43. 
 
 The defendants were convicted for unlawfully 
 assaulting F. V. "bystanling in front of the 
 horses and carriage driven by the saiil V., in a 
 hostile manner, and thereby forcib'v iletaining 
 him, the said V., in the public highway .against 
 his will. " — Helil, that the conviction was bad in 
 stating the detention as a conclusion .and not as 
 part of tlie charge, which, as shewn by the con- 
 viction, w.as merely standing in front of tlie 
 horses, and did not amount to an ass.anlt. Rerjina 
 V. McEllifjottet al. 3 0. R., Q. B. D. 535. 
 
 On an application to the Division.al Court to 
 quash a conviction made by the police magis- 
 trate, of the city of Toronto, against the defen- 
 dant for keeping a house of ill-fame, there being 
 evidence, as set out in the report of the case, 
 upon which the magistrate could convict, the 
 court refused to interfere. In the conviction the 
 offence was stated to be against the statute in 
 such case made .and provider". : — ^Held, that, if not 
 constituted an offence under 32-33 Vict. c. 32, 
 D., the reference to the statute might be treated 
 as surplusage, and the conviction sustained under 
 the common law ; but that the reference to the 
 statute might be supported, because sec. 17 ini- 
 
4o;j 
 
 LACifES. 
 
 404 
 
 mm. 
 
 I 
 
 f 
 
 
 jxii^cH a jiuiiislinii'iit in soniu respects difrciLtii. 
 fidin the tdiiiiiu.n law. Jx'iijiiia v. Flint, 4 (I. ll,, 
 (J. P. D., -'14. 
 
 As to juritdiution of niagistrntcs to convict for 
 <,'anil)liii^' iiiMk'T 27 Ceo. .1 c. 1. Sec litijliiu 
 
 V. jn,i/,<.-<,,i, 40. j{. 5f)!). p. mo. 
 
 See /,'(ry;»(f v. ( kir/,; 20.1!. .VJ.'t, p. 72: L'riiiiut 
 V. JIk/.-//', 2 (). ]{. 20(i, p. !)!• ; L'K/ihd v. lUhmll, 
 3 0. 1{. 45, p. 100 ; lh<jbia v. Wiilldcr, 4 O. 1!. 
 127, p. 100. 
 
 2. Avii)i(hiir ' of. 
 
 Coiivittion iiiukr Cjiiiiula Tiirpcrniice Act, 
 1878. See lituhnt v. li,iii„ll, .SO. \\. 45, p. 100. 
 
 C'oiivietioii under Liquor I.ieiiife Act, W. S. 
 O. c. 181. f-ie liKiihu V. AIII,rU,l,t, !» 1'. H. 25; 
 MfLilkm V. J/cKl'i.iHii, 1 t). 1!. 2 lit. 
 
 3. Mnuoranilum vf Cvvrktion. ' 
 
 Held that the fact that the nituioraiiduiii 1 
 of conviction diflered fr( ni the conviction as' 
 returned, in not providing; for iuipiisonnicnt 1 
 in default of piijinent, ilid not invalidate the 
 conviction, for it ia butiicient if the piiialty has 
 been lixtd at any tiuic licfore the conviction is 
 foinially dunxn up. Itujihu v. .Sw/i/A, 40(^.1!. 442. 
 
 Held, the defendant, having had the certiorari ! 
 directed to the magistrate who luid convicted, i 
 ■was estoj J td from objecting that the conviction 
 was in reality made by three, as ajpieared from 
 the memorandum of conviction which was signed 
 by them. Ih. 
 
 4. Qumhinij. 
 
 Held, that the validity of a by-law might be 
 questioned on a motion to <]uash the conviction 
 made under it. lUijihax. Ciitlihirt, 45 Q. B. lit. 
 
 A warrant was issueil by a magistrate for the 
 appreljension of the defendant, who w as brought 
 before another magistrate therecn, convicted and 
 fined. Subsequently the magistrate who had 
 issued the warrant caused the defendant to be 
 Buuinioncd before him for the same oU'ence, and 
 again convicted and lined bin), after refusing to 
 receive evidence of the prior conviction. Ihe 
 cou it qua shed the secoiidc<'nvictioii, with costs : — 
 Held, that, even assuming that the Hrst convic- 
 tion was void by reason of the defendant having 
 been brought before a magistrate other than the 
 one who issued the warrant, his appeal ance and 
 pleading thereto amounted to a waiver, and r.t 
 any rate the magistrate w ho convicted the second 
 time could not take advantage thereof. Jictjiiio 
 V. lUrnurd 4 O. 1{., Q. li. D. COS. 
 
 See Ihii'mu v. W In Ian, 45 Q.K TiilO, p. 105; J\/c- 
 Li'lUm v. McKiunvii, 1 O. li. 21!), p. 404; llc 
 ginii V. Clur/,,'2 O. li. 52.'}, p. 72. See also lit'ijwu 
 V. araiiHjer, 40 Q. B. 382. 
 
 V. Wakkakt fou Ahkkst. 
 
 The wariant was issued in the United Counties 
 of Northumberland and Duihani, rnd was en- 
 dorsed by a magistrate in the county of I'cter- 
 borovgh, "This is to certify that 1 have endorsed 
 
 this warrant, to be executed in the enunty of 
 reterborough," but there was no proof of the 
 hand-writing of the justice wlio issued tlie war- 
 rant or recital of such innof as reciuircd by 32- 
 33 Vict. c. .SO, 8. 23, ])., scli. K ;— Held, that 
 the warrant was therefore defective, and tlie 
 ariest illegal, for which the defend.int was liable 
 in tre,'<i)ass. lltUl v. Miii,li(( , 31 C. 1'. 3i'4. 
 
 VI. ruOCEEDINliS A(i.UN.'<T AN]) I.IAUII.ITY OF 
 MA(ilSTliATr..s. 
 
 A magistrate acting under 32-33 Vict. c. 20, 
 s. 37, ]>. , convicted U iir jieii^ons for eieating a 
 disturbance thereiindii-, and iiniiosid upon each 
 a fine of .^5, but instead of i-eveiing the costs 
 which he bad chargeil, imposed the full amount 
 the) eof against each defendant, and leceivcdit 
 from each :— Held, that under the ciicumstanecs, 
 more fully set out in the rejdit of tlie case, the 
 overcharge must Vic deemed to have In en wilfully 
 made, so as to renderthe defendant liable to the 
 penalty imposed in such cases by the K. S. O. c. 
 77, s. 4. Vurxous ijidlum v. Crahln, \\\ ('. 1'. 151, 
 
 When an appeal was brought from acdivictiou 
 imposing imprisonment with hard labour which 
 the magistrate had no power to award, and the 
 sessions amended the record by stiiking out 
 "haul labour."— Held, Cameron, J., dis.sei ting, 
 that their assuming so to amcntl the convicticju 
 was not a quashing of a conviction, and there- 
 fore trespass would not lie against the justice. 
 McLdlan v. JikKwnuii, 1 O. 1!., Q. B. D. 21it. 
 
 LACHES. 
 Entitling Sieetv to Disciiaboe— •S'pe Prinli- 
 
 I'AL AM) Sl'HETV. 
 
 \Vhere mortgages or other evidences of debt 
 are assigned as coll.iteral security by ii ;kbior to 
 his creditor the latter is bound to use due dili- 
 gence inenforcing jiayment thereof,and if throunh 
 his default or laches the money secured thereby 
 is lost it will be charged against the creditor and 
 deducted from his demand. Siinod\.DfBlaqinirv, 
 27 I hy. 5.3(j. 
 
 Held, that under the facts stated in this case 
 there had been no laches on the jiart of the com- 
 pany disentitling them to the debentures, lit 
 (iraii'l Juialiun li. (('. Co. v. Counlii uf I'ltcr- 
 Uiiv, 45 Q. B. 302. licveised on appeal, A. li. 
 33t». 
 
 Held, in this case, that by acquiescing in the 
 sale ot land, and by her laches the widow had 
 waived her right to compcn.sation for the loss of 
 benefits bequeathed to her by her husband. See 
 li'ij,l(!/ V. Jii/^liy. 28 Chy. 010, p. 224. 
 
 On an application to open up proceedings by 
 way of review on thegrounil ol newly discovered 
 evidence, Ferguson, .J., refused the relief asked 
 with costs on the ground amon.M. others, that 
 the comjjany, had they exeicisect i\u. diligence in 
 the matter, might have bcci me aware of the prior 
 purchase and payment to w hich such eviilence 
 related. iJmiihl'- v. Cobditri/ ami I'derhorowjh 
 li. ir. Co., 29 Chy. 121. See also J/H?Trt//;'< «/. 
 V. Caiuulu CtiitnUli. IV. Co., 7 A. li. 040. 
 
404 
 
 405 
 
 LANDLORD AXD TENANT. 
 
 4on 
 
 ti ciiiiiity of 
 iroof (,t' tlio 
 ('<1 tlie war- 
 iiiri<l ]ry 'A'2- 
 Hild, that 
 v<', and tile 
 t w.iH liable 
 J'. ;)84. 
 
 Mill ITY OF 
 
 ^'iet. c. 20, 
 ru'Htiiig a 
 11)1011 each 
 tile costs 
 tull ainoiiiit 
 ULeivcd it 
 niiistaiiccs, 
 le ease, the 
 I en wilfully 
 ialile to the 
 ;.S. (). c. 
 .•(1 ('.!'. 151. 
 
 a t( nviciion 
 ilxiiir which 
 ml. and the 
 itiikiiig out 
 , dis.sei ting, 
 e convielion 
 , and tliere- 
 tlie justice. 
 13. 1). 219. 
 
 'SVf! Peinci- 
 
 tiees of debt 
 y a ;k;.ior to 
 iiNc due dili- 
 nd if tlirouyh 
 iicd theiel>y 
 creditor and. 
 DeBlaqiiivrc, 
 
 ill this ease 
 t of the eom- 
 Liituies'. lit 
 dil of J'lltr- 
 lieal, G A. K. 
 
 scing in the 
 J widow had 
 r the loss of 
 ishand. tiee 
 :4. 
 
 iceediiigs by 
 y discovered 
 
 relief asked 
 others, that 
 
 diligence in 
 iof tlie jirior 
 ich evidence 
 ''(■lerlwroiKjIi 
 liirray d id. 
 \\. (J4(j. 
 
 Hchl, in this case that the defendant was not 
 debarred by laches from setting up the defence of 
 false representation in the sale to him of certain 
 land. See Lve v. AfcMa/ioit, 2 O. R. ()")4, p. 288. 
 
 Delay in moving against by-law. See /.•) ri' Me- 
 Alpine V. T/it' Corjiurulion of the Tuivimhip of 
 Eupfuma, 45 C^. U, 190. 
 
 ilotion to set aside award refused. See Par- 
 dee V. Lloyd, 5 A. R. 1, p. 19. 
 
 Application to open foreclosure refused. See 
 Mdv!* V. Cameron, 9 P. R. 502. 
 
 Application for interim alimony. DeLay in 
 proceeding not satisfactorily accounted for. See 
 Tliuiiijisvu V. 'riiiiinpiion, 9 P. U. 520, \). 329. 
 
 Delay in application to set aside judgment. 
 Lhjhtbound v. hill, 9 P. R. 295, p. .S95. 
 
 An infant if ho wishes to avoid a contract 
 must repudiate it within a reivsonable time after 
 coming of age, otherwise his silence will be held 
 to amount to an athrniancc of it. See Ftjley v. 
 Canada I'rrmanent Loan and Sai'iii'/n Co., 4 O. 
 U. 38, p. 335. 
 
 See also Ti/lee v. The Queen, 7 S. C. R. 651. 
 
 LANDLORD AND TENANT. 
 
 L Operation of the Statute of Frauds, 
 40(). 
 
 il con.structiox and ol'epatiox of 
 Leases. 
 
 1. Leagcn under Short Iorm.i Act, 407. 
 
 2. Covenant to IMniild, 407. 
 
 3. Covenant to keep up Fences, 408. 
 
 4. Covenant Kot to Aashjn, 408. 
 
 5. Other Cases, 408. 
 
 III. Tenants at Will— Set Limitation of 
 
 Actions and Suit.s. 
 
 IV. Tenants for Life— i'ee Estate. 
 V. Leases by Particular Persons. 
 
 1. Mortjjaijors and Jlortijayees — See 
 Mortgage. 
 
 VI. Cancellation of Lease, 410. 
 
 VII, Surrender of Lease, 410. 
 
 VIII. Rent. 
 
 1. Payable hy Improvements, 410. 
 
 2. Premises Burnt, 411, 
 
 3. Eviction, 411. 
 
 IX. Compensation for Improvements, 411. 
 
 X. Crops, 411. 
 
 XI. Right of Tenant to bore for Oil, 
 412. 
 
 XII. Fixtures— ^ee Fixtures. 
 
 XIII. Actions and Proceedings by Land- 
 lord. 
 
 1. Curmanl. 
 
 (a) /mpirfccf E.i:ecHtiiin of Lease, 412. 
 
 (b) IJaniiKjes, 412. 
 
 2. Unrholdinij Tenant, 412. 
 
 3. Distress — See Distress. 
 
 4. Landlurd'svlaim/or Bent — See Shek- 
 
 IKF. 
 
 XI\^ Action Against Landlord. 
 1 For False Notice of Sale, 41. '3. 
 XV. Tenants' power to dispute Title, 41;{. 
 XVI. Rights of Tenants in Re.spec t of Kx- 
 
 PKOPRIATION OF LaND. 
 
 XVll. Rights OF Reversioner, 414. 
 
 XVIII. Mlslellaneous Cases, 414. 
 
 XIX. Qualification of Tenants as Voters— 
 See Parliamentary Elections, 
 
 I. Operation of the Statute of Frauds. 
 
 The plaintiff sued defendant for damages for 
 refusing to give him possession of premises which 
 the plaiiititr alleged that defendant had verbally 
 agreed to give him a lease of for sixteen months : 
 — Held, atKrming the judgment of the county 
 court, that the evidence did not shew an actual 
 letting, but that even if it did the plaintiff must 
 fail under the fourth section of the statute of 
 frauds, as the action was brought in respect of 
 an agreement for an interest in land. Moore v. 
 Kay, 5 A. R. 261. 
 
 The plaintiff was the lessee of certain premises 
 used as a factory, and having become insolvent 
 the lease was forfeited by the lessor, the defen- 
 dant, though at what particular time did not 
 appear. The plaintiff continued in occupation, 
 and an arrangement .vas entered into, whereby 
 one F. agreed to purchase the macliimiry on the 
 premises from the official assignee, giving the 
 plaintiff the option to redeem it within two years. 
 The plaintiff further obtained from the defendant 
 an agreement, as follows:— "Toronto, January 
 27th, 1880. "In the event of Thomas Carroll 
 continuing the occupation of building on Hayter 
 street, I promise ami agree to give a new lease at 
 a rental of JjliOO for five years ; also agree to allow, 
 &c., (specifying certain allowances). Signed, R. S. 
 Williams." The defendant refused to signalease 
 of the premises to the plaintiff', and an action be- 
 ing brought for specific performance : — Held, dis- 
 missing the action, that the agreement was not 
 sufficient to satisfy the statute of frauds, as it did 
 not appear from it with certainty when the term 
 was to begin, nor to whom the lease was to be 
 be given. Seiuble, that the otlicial assignee 
 should have been made a party, and that in any 
 event it would have been a case for damages, not 
 for specific performance. Carroll v. Williams, 
 I O. R., Chy. D. 150. 
 
 The defendant agreed to pay the plaintiff .§300 
 if he would procure a lease of the premises then 
 occupied by him under lease from one W^., and 
 adjoining the defendant's, with the privilege of 
 making a doorway between the two houses, and 
 assign the lease to him. At the plaintiff" 's re- 
 ((uest, the defendant wrote him the following 
 letter: "To Mr. John Bland. Dear Sir,— lii 
 
lo; 
 
 LANDLUKIJ AND TENANT. 
 
 40.S 
 
 •It. 
 
 :;^' 
 
 
 II |ily to y(iiii> 111' tu-iliiy, 1 jiroiiiiHc to niw- yoii 
 if.'ll'O [iidviiliil yon can jiivu nii' ii tr.in.sl'ur Ic'isu, 
 Mitli |irivilfgc to iniiko ;ui opening IkjIwimmi your 
 |iii iiii.si'H aiiil my own. Cash to lie jiaicl on (toni- 
 plction of IraMHlLT loaHc. 'I'liis in as I iinilorstanil 
 it. N'ouis ni(JHt truly, 'I'. IIaion." 'I'Iic ])lain- 
 till' (irocnreil a luasc, iinil tindurod an a.ssi^'ninont 
 ol it to tlif (icl'iiulant, wild retuHftd to aL'L(;))t it, 
 wli(M(,Miiion till' |plaintiirHMcil fortlic S;iO(): - llclfl, 
 rcvcrain^ the (liciHion of the ( 'ounty Court, that 
 the (Icl'cnilant'.s letter was a .sulllcipnt nu;nu>raii- 
 <luin to sati.'il'y tlie ri'(|uirt;nicntM of st'i'. 4 of the 
 St itutc of l'"rauilH, vitliin wliiili tlie (i^irceniunt 
 fell aH licing a (•ontra<:t (•oiicfrnin^' an inti'rest in 
 land ; tliat the |>ri'iuisc.i wcro iliscrilxid witb 
 sutlii'icut <'crtainty, and the oniiHsion to specify 
 till' tcrni.s of till' lease was iiuiiiateiial, tliey liav- 
 iiiL' Ik en left in the iilaintiil'H diKeretioii. The 
 jilaiiiliir, theretoii! wa.s held entitled to recover. 
 ///'///(/ V. /ui/ni,, i; A. K. 73. 
 
 II. CoNsruri •iKiN AMI ()i'i;kati(in <ii' Li;asi;s. 
 
 1. /.I'lixcs iivdrr Sliiifl Juiriiis Ad. 
 
 See h'iiu,i(/t V. (.Jiihiii, 7 A. 1!. 300, p. 408. 
 
 2. ('oiuiiiiiil III RchtiiliL 
 
 In a lease, ex|iresKed to lie made in jiursuance 
 of the Act resiieuting short forms of least^s, the 
 covenants, in jilace of the words "the lessee 
 covenants with the lessor," were coniinenced 
 ■with the worils " the said jiarty of the second 
 part covenants with the said )iarty of the first 
 part." 'I'iien followed covenants reprcsentinf; 
 the statutory short form covenants, and a coven- 
 ant to build .1 liouse on the demised premises ; 
 .and another covenant to rebuild in the event of 
 the buildini,' so erected during the term lieing 
 destroyed liy fire. This last covenant was intro- 
 duced by the words, " and the said party of the 
 second part further covenants with the said party 
 of the first part." The lessee, with the assent 
 of the lessor, assigned the lease, and the assignee 
 built in pursuance of the covenant, and executed 
 a mortgage to the defendant, and on the buildings 
 being burnt down re-built them. Sub.seiiuently 
 the defendant, on default of payment, sold, under 
 the power in his mortgage, to one N., who as- 
 signed the leasehold interest in the jiroperty to 
 tlie defendant, and thereafter the buildings, du- 
 ring the occupation of the defendant, were again 
 <le.stroyed by fire : — Held (1) that the covenant 
 to rebuild derived no aid from the statute, and 
 was to be read as made by the lessee for himself 
 alone and not for his assigns, and the decree of 
 Blake, V. C, 27 Chy. 420, was reversed ; 
 Spragge, C. J., Burton, and Morrison, JJ. A., 
 holding that the covenant Iieing in respect of 
 something not in essi; at the making of the lease 
 did not run with the land, and did not bind the 
 defendant: Patterson, .1. A., dissenting, on the 
 ground that the building having lieen erected 
 before the assignment to the defendant, the co- 
 venant ran witli the land and bound him. Held, 
 (2) by Spragge, C. J., Burton, and Morrison, JJ. 
 A., that the covenant to build not being one of 
 the statutory covenants, nnist be read as being 
 ni.ade by the Ics.see for himself alone and not for 
 his assigns. Per Patterson, J. A. That the 
 short form words introductory to the cove- 
 nants should be read as if extended in the long 
 
 form u|ion tbo deed ; and therefore the words 
 "for himself, his executors, administrators, and 
 assigns'" applied to thecovenant to build, though 
 not to the covenant to rebuild. Per Patterson, 
 .1. A. The use of the words " (larty of the lii'st," 
 anil " ji.irty of tlii^ second jiart," inserted in the 
 intriiduetory part of the covenants was a sulli- 
 cieiit compliance with the )irovision of the stat- 
 ute, in resjii'ct to short forms of leases, which 
 says that any name or names may besubstit\itcd 
 for the words " hissor" and " lessee." lleniarks 
 on Minshull c. Oakes, 2 II. Ik N. 7!»3. Einmrll. 
 V. (Jiiiiiit, 7 A. 11. 30(i. 
 
 3. Covnittnt to ki'i'j) ii}> Fiuri'n. 
 
 Senible, that in this country the removal of a 
 fence on a farm from one place to another is not 
 ]ier se, as a matter of law, a breach of a covenant 
 to repair and keep fences in repair ; and whether 
 it is so or not would be a question of fact under 
 the circumstances of each case. When the les- 
 sor accepted rent after such a removal with 
 knowledge of it : -Held, a waiver of the forfeit- 
 ure, if any, and that he could not afterwards 
 claim to re-enter for the continuance of the fence 
 in its altered jiosition as a breai'h of the coven- 
 ant. L(i;/hluii V. Mo/lri/, I (). 11., (^ B. I). 207. 
 
 4. Cownant Not to Anniijti. 
 
 The plaintiffs, owners in fee of certain land on 
 the 30th October, IHdC, leased it for 21 years to 
 one B by a lease under the Short Forms Act, con- 
 taining covenants to pay rent and not to assign 
 or sublet without leave. Hy a deed of the same 
 date, after reciting the lease, and an iigreementof 
 H. to]iurchase the buildings on the land for!?l4()0, 
 the plaintiffs conveyed the said buildings to B, 
 his executors, administrators and assigns. B. 
 then mortgaged the premises to H., and after- 
 wards assigned his interest to ('., who assigned 
 to Ci. H., and (i. H. assigned to M. This last 
 assignment was objected to by the plaintiffs, who 
 brought ejectment against the defendant D. ,who 
 was in possession of the buihliugs under a verbal 
 lease from B., for the forfeiture occasioned by 
 such assignment, as also for non-payment of rent. 
 While a rule nisi to sot aside their verdict was 
 pending the plaintiffs obtained a decree in Chan- 
 cery, by which the conveyance to B., so far as it 
 conveyed the land on which said buildings stood, 
 was declared to be a mistake, and was i-ectified 
 so as to pass only a chattel interest in said build- 
 ings, and I'o estate in the land: — Held, that the 
 plaintiffs were entitled to recover for the breach 
 of the covenant not to assigr., &c., but that un- 
 der the circumstances their recovery must be 
 limited to the land alone and not to the buildings 
 thereon, and that therefore they could not enter 
 into said buildings or remove the defendant 
 therefrom. Toronto Hospital Truhlees v. Dcn- 
 ham et al., 31 C. P. 203. 
 
 5. Other Cases. 
 
 A verbal lease of a farm was made by a father 
 
 to his son for five years, determinable by either 
 
 at will, the son to have the use of the stock and 
 
 implements on the farm to pay SIOO a year and 
 
 1 support the father and vhe family who lived 
 
 , thereon, with power to the son in his discretion 
 
409 
 
 LANDLOIH) AM) TKXANT. 
 
 410 
 
 to Mi'll ami rxcli;iiif,'(' tliu Htock mid iiii]ilciiii'iits. 
 Ml) Idiij; :is their \iiliu' ujiM iciilacccl. 'I'lji' liaso 
 wiiH iiticiwfinls (lutijiiiiiiicil liy tlif mitrv i>t tlio 
 latliur, wliii t(M)k jxiHStsKicin ot tin; land and tlii' 
 j;o()cl» tlit'ii'iin. Sul)si'iini;ntly, an L'XiH'ution imo 
 (litiir (il tin; Hiin iH.suod t'Xt'i'Utiiin and sci/i'il the 
 gdudn ; ll(;ld, (tnlcr, .1., dinMuntin;^, that tlit; Mnn 
 
 liud only a liniitt'd intuir'nt in tho j^ U iliirin^' 
 
 the term; that those not |iartuil witii hy thr mm 
 rcMiaini'il jii.st a.s if no jiowi;r to noil h;id l)i'(;n 
 given, whili; thosi; aci|nircd in lit;ii of thu onus ' 
 Hold or liy cxi'lian^o hocatni; Hiilijuct to thi' terms I 
 of till! (IcmiMf; at all i'vunts,(in tin; di'termi nation I 
 of tin; leani! hy tin; fathur'H entry, the orii,'inal an 
 well aH thu Kiilwtituted j,'oodM lieuame vested in 
 him, as the goods were liefori; thu makin;; of thu 
 lease; and lheri;loru the oxuention eri'dilor, nn- 
 der tho oireiimstanees, had no (;laini on thu 
 g(i()(lH. I'er < >sler, .l.-'I'liu iilentiial artieh-H woiu 
 not neeoss'irily to liu rutnrned, Imt only in thu 
 same kind ami value, ami therefore lliu trans- 
 action eoiiHtituti;d a sale, ami tin; liro[Purty l)o- 
 came vestoil in the son, ami liable to In; se./od in 
 all execution again>t liini. Olifcr v. St ir/i<ii(.ii', 
 
 a-i ('. I'. !iu. 
 
 ]{y a voilial agroenn;nt, onter(;d into in .luin;, 
 187t>, thu plaintiir leased to his .son, M., who was 
 residin;^ with him, tho farm oeeu|iied Ky them, 
 for live years, at an annual rent of SIOO, M. 
 agreeing also to Hui)|iort tin; plaintill ami thu 
 other meniliers ui his family, liy the terms of 
 the agreement M. was to have tho use ami en 
 Joyinent of the stiiek ami ini|ilenn;nls on thu (iru- 
 niiseM, estimated to lie worth •'iSIOIO. It was also 
 stipulated that .M. should have power to sell or 
 otherwise disiiose of sueh portions of tho stoek 
 and im|ilenn'nts as he might think desii'alilo,1iut 
 at the eonelusion or sooner iletermination of tho 
 ttrni, he was to lea\e others of eipial value, any ; 
 surplus al)ovu that amount to lie Ins own. I'^ither 
 party was tohu at liliertjtodt;termine thu least; at 
 anytime ho thought tit to do so. In .lanuary, 
 187!t, M. having liei'onie tinaneially (;nd)arrassed, 
 aiullinding he was lo.sing liy the farm, expressed 
 his deti;rminatiou to try some other nnido of life, 
 audsaid that theplaintiU'might have theplaeeand 
 the steek, ^c, thereon, if he, thu plaintitl', would 
 diseharge him from any claim in respeet of the 
 rent, no jiortion of whieh had heen p.iid. M. clid 
 accordingly aliainlon the plaee, and tin; plaintitl 
 thereupon assumed thu management and control 
 thereof, and took possession of the 8t<ick, &e. 
 M. sul)se(iuently returned to his father'.s and 
 continued to reside and work on tho farm for his 
 father. In March folhiwing M. executed a sur- 
 rouder to the plaintilldf all his right ami interest 
 in or to tho farm and the crops upon it. In thu 
 month of Ai)ril, for the expressed consideration 
 of §,'{40, which it was allegeil his father had lent 
 him, he also oxecutud a nniuoramluni assigning 
 to the plaintitl' all his interest in thu stock and 
 fanning implements, &c., on the placu, which in- 
 cluded, it was .said, a liuggy, cutter, ami har- 
 ness, which had boon purehasu<l ly M. for his 
 own use. In October, 187!*, thu defendant sued 
 out execution against M. under which the sheritl' 
 seized the farm stock an<l implements, together 
 with the said buggy, cutter, ami harness. In an 
 interpleader procoeiiing by the father, in which 
 a Verdict was rendered for tho plaintitl', on appeal 
 from a rule refusing to set such verdict aside; — 
 Held, that the lease from the father to his son 
 had the effect of vesting the chattel property in 
 
 tin' latti'r; and ijUiere, whether it w.-i."! afterw;iiils 
 revested in the; father by the writings exi'cnted 
 by M. ; but as tin; ipu'stiun winlher there h id 
 boon a delivery anil eliangi; of possession siilli- 
 eieiit under tin; Bills of SiiU'. Act had not 1m'i;|| 
 p.'issed upon by tin; jury, and as Hoiin; doubt ex 
 is ted in respeet of the biiij^y, I'utler, and h.irnes.s, 
 a new trial was indered ; I'osts to abide the result. 
 
 s. r., H A. u. I -."J. 
 
 .See /.'//(;///( v. Siiii.^un, 10 (,». 11. -ltd, p. -Jl--'. 
 
 \'l. ('ASrl'.l.l.ArKlS iiK Lk.\si:. 
 
 .S. on tin; Ist .August, I.SliS, traiisfi;rred to ap 
 pullants (plaintiils), ;ih trustees of .S. 's (;ieditiiis, 
 his inteiest in an unexpired lease he had of a 
 ct;itaiii hotel in .Montnal, known as the I'lHia- 
 V(;nture building, and in the furniture. On Ist 
 April, I.S7(), A. I'., the prii|)rii>tiir, after cineell- 
 ing, with thu eiinsi lit of all concerned, the mv 
 oral leasi;s of the said building and |ireniises, 
 gavo a leasi; direct lor a term ol ten years to one 
 (i.,at .•?;(),()()() a year, of the building, and also of 
 the furniture belonging to ,S. 'h creditors, and on 
 tho same day by a notari:il deed, "agreement 
 and aei;ord," A. 1'. promised and agreiid to pay 
 to niipell.ints, as trustees of S.'s ereditois. 
 whatever Ik; rei;eived from the tuuant liuyond 
 .S,"), 000 a year. In l''ebruary, IH7;t, tho luemises 
 wen; burned, with a large |iriipiirtion of the 
 furniture, and appellants rieeived .•«!.■(, •2l'H for in- 
 surance on tixtures and furniture, ami .S7I'I. 
 being the ]iriiceeils of sale of tin; balance, of tin 
 fuiiiituri; saved. The lease with (1. was then 
 cancelled, and A. 1'., after expending a large 
 anionnt to tviiair tho building, lea.-'ed tho jire- 
 mises to l>. I', it Co. for .•>;(),()()() a ye:ir Irom Oi; 
 tuber, I87;{. Apiiell.ants theremion, as trnslei'S 
 of S's. creditors, Biied res]iomlents repri'sonting 
 A. P., and called upon them to render an ac- 
 count of the amount received from (•. and I^. I'. 
 &, Co. above .'i«r),(K)0 a yi;ar. Tho Superior (Joiirt 
 at .Montreal held that appellants were entitled 
 to what A. I', had received from L. 1'. & Co. 
 beyond §,"),()()(). On appeal to the Court of <,>uuen's 
 Hunch (ajuieal side) this juilgini;nt win -i vunsed : 
 -Held, 1. Atlirming the jililgmeiit i' ,n Court 
 of ((>iieen's Hunch (appeal side), that the leasu to 
 (t. turmiiiatod by a force majeure, and that the 
 obligation of A. I', to pay apiiellauts tho sum 
 of .slOOO out of the said rent of .»;(J00(), ceased 
 with the said leasu. That tho fact of apiiel- 
 lants having alleged themselves in their declara- 
 tion to bo tho "dulynamed trustees of .S's. credit 
 ors," did not give them the right to bring the 
 present action for S's. creditors, the action, if 
 any, belonging to the individual creditors of .S. 
 under Art I'J. C. C. l". L. C. Broinir v. J'in- 
 .■<oiii'aiill, :i S. C. R. 102. 
 
 VII. Surrender of Le.\se. 
 .See Xicon v. Matlhi/, 7 A. R. .'171, p. 411. 
 
 VIII. Rent. 
 1. Payable hi/ /mprorcmeiits. 
 
 See ^ntcll(ll V. Duff/, .31 C. P. 261), p. 211 ;". 
 Workman el al. v. Jiuhb et al., 7 A. 11. 381*, p. 
 425. 
 
n 
 
 LANDLOIJl) AND TKNANT. 
 
 412 
 
 •I* 
 
 :i.' 
 2'^' 
 
 k?^*- 
 
 /' 
 
 -I.S I ill nil. 
 
 \ li'iiHc of 11 mill, ami tin iicics of l.iiiil ad juiii- 
 iliv. fur live yi MIX at the riiil of S,"i(H» hir tlu.' 
 liist yiar ami s."i."i() lor cacli ot llic fcmr Miicrccd- 
 
 iii^; ytaiM, (layalilc half-yearly in iidvain'c n- 
 
 taiuril tlic nsiial riivcnaMtsaiid )ir(iviMiniiHaniiiii^'st 
 wliji'li was the (.iivcnant lo pay rent, witlioiil any 
 1 \('(|itiiiii an to tire, and tii kcup in npair, ac<i- 
 diMts liy liri' fxii'ptiil ; ami llu' lease eumdmled 
 w itli till' I'dlliiw in;; elalise : " Slicudd tiie mill lie 
 rendered ineapalile liy any fire, nr tenipesi, then 
 the piirtidli of rent for the une\|iired portiim iif 
 the term paiil lor in ailvunee, to Ik: relnndecl hy 
 the le.SNor to the lessee.'' Init there was no pro 
 vision in smh event lor the eesser of theterm ; - 
 Jlidd, liniton, .I.A., disseidin^', reversing' the 
 iud;:ment of the County Conrt, that the elleet of 
 tlie uliide instrninent was, that thi' destrnetion 
 of the premises hy lire, not njerely ga\ (^ a right 
 to a ninrnof a proportionate part of the enr- 
 rent half-year's lent, lait put an t net to the w hole 
 term, and therefore that the lessor was not en- 
 titleil to reeover ri'iit lor the half year siieeeed- 
 iii^' such deHtriU'tion. A'luf v. Sttdrs, .5 A. II. 
 
 I NO. 
 
 :). ICrlction. 
 
 In an action to recover a year's rent on a eovo- 
 
 II ant in a lease for three years, it was shewn 
 that the defendant had harvested the ero|)S on the 
 farm, and (liaL they, tooctlur with the hani and 
 stalilc, Were destroyed liy lili; liefme the exiiira- 
 tion of the year, an<l that he was paiil the insu- 
 raiiee money ; whereupon he left the fariii, and 
 the plaintill'i^ntered, ploiij,died and put in a crop. 
 The plaintili' aftei'wards a|ipliecl on several occa- 
 Mniis to till! d fendaiit for jiayiiieiit of the rent, 
 \\ hen the defemlanl s.iid he had not any money. 
 It was shewn that ;i preposition had liceii madc^ 
 to leav(! the matter to ailiitration : lltdd (allirni- 
 iiiL' the jiideineiit of the judge of the County 
 Ccairt <if i'eel), that the acts of the iilailitill' did 
 lilt ainonnt to an evietion, that then; was not 
 evileiiee to support a surrender in law, and that 
 the plaintili' was entitled to recover. I'.urton and 
 I'atter.son, .l.l..\., (liiliitante. yi.niii v. .Mulllnj, 
 7 A. It. .'iTI. 
 
 IX. Co.MI'KN.SATION I'dl! I.Mrit()Vi:.Mi:NTS. 
 See Mmiin v. Miivdomilil, 45 (^>. J5. IlIJ, p. (10. 
 
 X. CiMirs. 
 
 liy a lease from one I), to the plaintili' it was 
 provided that if J), sold the farm the plaintili' 
 should give up possession upon receiving six 
 months' notice lictorc the ist of April, ami that 
 he should have the privilege of harvesting and 
 threshing the eiojis of the summer fallow, or the 
 Work done on said fallow should he jiaid for at a 
 re.asonalile viiluation. J), afterwards sold to the 
 defendant, .■iml in August the plaintili' received 
 the sti|)ulated notice after he liad preiiared the 
 sumjiier fallow hut hcfore he had sown it. He 
 afterwards sowed it with fall wheat, and gave 
 up possession on the Ist of April. Neither D. 
 nor the defendant elected to pay for the cro;;, 
 and the defendant converted it to his own use : — 
 Held, atlirming the judgment of the (,>ueeii's 
 lieiich, 44 Q. li. oO'J, that the true construction 
 of the provision was, that the plaiutitl' was to 
 
 lirvc the privilejje of harvesting ttiiycro])8 which 
 niiglit hav(! heen put in on the HUinnier fallow, 
 unless I), elected to pay for tlieiii at a valuation ; 
 tli/it he had never jiarteil with the jiroperty in 
 the crop, and that he was therefore entitled to 
 leeover in trover against the defendant. I'er 
 Patterson, J. A. — If the lessor inten<led to pay 
 for tluMVork, he was hoiiiid to i;leet to do so 
 when he g.ive the notice, or at the latest, when 
 he resumed poHHcssion. Jliirriiuii v. /'Inkin i/, 
 (i A. It. L'-.'.'.. 
 
 \I. ItlollTdK TlA ANT TO IJoUl'. KollOll,. 
 
 Injunction against tiiuant. Suo Liiitcii/ v. Johii' 
 
 sii.ii, •_'!» chy. i;;, p. .'U(l. 
 
 XIll. .VCTIONS \Mi I'UOCKKIMMIS |!V FiANDLOKU. 
 
 I, fun limit, 
 
 (a) /iii/ii li'ii'l F.i' iiiiiuii III' l,iini\ 
 
 'I'lu! two defendants and one C. , heing in pos- 
 session of premises as assignci's of a covenant 
 from the plaintili' for a lease, he caused a lease to 
 the three to he drawn, which w;is exeeutiMl liy 
 the ilefi'iidants, on the representation that (". li.'id 
 cxccutecl a eounterjiart thereof, which was nut 
 the ease, and the lease w;is revi^r excentcd liy 
 him : llehl. allirining the jinlgmeiit of tlii^'oiii- 
 niou I'leas, tliat tlu^ eviilence set out in thercjiort, 
 j Hliewe<l that the intention of hotli the jilaintiir 
 { and the di^fiMidants w.as. that (!. should lie a party 
 to the h'ase, and that the plaintilF could not rc- 
 eo\er the rent due ill an action upon the covenant 
 in the lease. I'ljii r v. Simpson it al., (i ,A,K. 175. 
 
 (li) Diimiiijci. 
 
 Ill an action brought to reform a lease, and 
 cl.iiming damages for lireach of a coviuiant: — 
 III Id. that siieh claim for ilainagcs was not a 
 " imrcly money demand " under see. 4 of the Ad- 
 ministration of ■Justice ,'\ct, It. S.O. c. 4!t. (luw- 
 iiiilii,-/.- V. MiiiLs, <) I'. K. 270. — Dalton, Mndi-i: 
 
 See Cuii-Uiiij v. lyiilsiiii, 5 A. U. .54!), p. 413. 
 
 2. OvfrhohVimj Tuiiniit. 
 
 The defendant leased from the plaintifT the 
 " refreslimeiit room and apartments coniieeteil 
 therewith," ]iart of a railway station, ami cove- 
 n.inted that no spirits of any kind should be sold 
 or allowed to bi^ sold in the lefreshment-rooin," 
 and that if he should fail, refuse, or neglect to 
 carry out the terms of the lease, then that the 
 lessee should, if rei(uircd by the lessor, quit, 
 leave, and absolutely vacate the jiremiscs, and 
 the lease should terminate." 'J'lie learned judge 
 of the County Court of ^'ol•k found that by a 
 sale of sjiirits in the bar-room, jiait of the de- 
 mised premises, the lease hail been forfeited, anil 
 ordcrcil the issue of a writ to put the landlord in 
 possession under the Ovcrholding Tenant's Act, 
 H. S. O. e. I.'i7 : — Held, atlirming his decision, 
 that the sale was a coiitiMvcntion of the lease 
 that the proviso for the terinin:ition of the s:i!iie 
 extended to negative covenants ; and that the 
 lease was therefore forfeited, and a right of entry 
 accrued to the lessor, and th:it it was a case 
 coming within the (Jverholdiug Tenant's Act. 
 Lonijhi V. SaiLiiin, 46 Q. li. 44(). 
 
4i; 
 
 F,\N1)L()III) AND TI'N ANT. 
 
 II 
 
 r(i|m wliioli 
 im;r falliiw, 
 . vulii.'itiDii ; 
 |iri)|icily ill 
 
 nilitlcil to 
 iiliiiil. IVr 
 iiliil t" Jiay 
 ■t to do HO 
 
 itl'wt, Wlll.'ll 
 
 V. I'inkiiiij, 
 
 •oil On,. 
 
 <•(// V. JdIiii- 
 
 L.ANIH.OHI). 
 
 tin'. 
 
 MWfi in |)(ia 
 
 II l'(IV(!ll!lllt 
 
 (cil a lease to 
 I'XccutiMl liy 
 itliat ('. had 
 icli was nut 
 (•x('ciit(Ml ))y 
 f tlie(;oiii- 
 II tlit'ivjioit, 
 tlic iilaiiitiir 
 Id liua party 
 uld not re- 
 lic covenant 
 (I AM. 175. 
 
 a, lease, and 
 covenant : — 
 ts was not a 
 , 4 of the Ad- 
 . e. 4it. (,'oin- 
 on, Mti.itci: 
 
 ■)4!», i>. 413. 
 
 plaiiititl' the 
 tn connecti'il 
 on, and cove- 
 lionld be sold 
 iineiit-rooni," 
 
 or neglect to 
 ;hen that the 
 
 lessor, quit, 
 premises, and 
 learned judge 
 ind that by a 
 lart of the lie- 
 forfeitiid, and 
 le landlord in 
 reiiant's Act, 
 
 his decision, 
 II of the lease 
 n of the siuiie 
 and that the 
 right of entry 
 it was a case 
 reiiaut's Act. 
 
 \l\'. Ai'TMiy A<; MSsr l^wniduii. 
 
 I. /'tir I'lllir XiiHi'r iif Salt', 
 
 |5y a c oviiiaiit in a |r me of a farm from difeiid- 
 aiit to till' pl.'iiiitill, it was proviiled that iiiioii 
 receiving "ix iiiontlis notice from the ll's^llr tliit 
 he had sold till' t'iirin, ami upon receiving coiii- 
 111 iisatioii I'or all lilmiir ii)i to the date of the 
 noti'^e, from whi' li lu' had derived im return, 
 the Ics-iei' would diliver up po-^v uion lit the end 
 of six niiiiitlis, t 'm eompeinition being duly paid. 
 |)efeiid!iiit served the. plailitid with ;i not ice that 
 he h;\d sold the I inn, in eoiiseipieiice of whi(di 
 tliii pl:iiiiliir dr-,i-(rd fiiiin piittiiii,' in eiiips, and 
 other wurii JMi which he had ni ule prepir dion, 
 and reiit'^d another firm. I'poii a-i''i'rt lining 
 tliit the noliei! wn niitnie, the pi liiitill' reim id 
 t I give up pins 'Msioii, an 1 sue I the defeml mt for 
 f dsc rcpre<ciit iti III : -Held, rcveisiiig the jiidg- 
 llimtof the(,>i|.'.irs l!eneli(l"i (,». r.. ill) that the 
 jiLlintiir was eiitille 1 t ) recover Llii' d iiin^cs sus- 
 tained by him in eoiH"i|ueiii'c of the iioticc. 
 t'owlimj V. hirhnoii, .T A. I!, ."il'l. 
 
 XV, 
 
 ;\Ni's l'iiwi:i; ID Disi'i ■ri; Trrii; 
 
 The )ilaintiir, an illiterale mm, held n bond 
 for a deed of certain l.ind on whiidi a b.alaiice of 
 liiirchase money was iiiipiid, and li.id acouired a 
 title to the land unihr the Statute of Limita- 
 tions but was not aware of the efleet of his pos- 
 session. The di'fendmt, who had plirchiscd 
 the interest of the heirs of the original owner 
 nud vendor, and his solicitor, by representing to 
 ]ilaiiitiir that he h id iM title, iniluecd him to 
 accept a lease of the l.ind from the del'cnd.int for 
 two ye.irs at .a nominal rent, with ;i covenant to 
 yield up )iossessiii|i at the end of the term : -Held, 
 that, miller the circumstances, the lease must be 
 set aside ; but even if .allowed to stand, it wiuild 
 not coiislitiitc an .aeknowlcd;4mint sudiciciit to 
 displace the iiI.iintilFs title, for its ellcct would 
 only he to create an estoppel during its lontiiiii- 
 auc'e. Ililh,,-!.- v, Sutlmi -I nl., ■_' ( ). I!., ('. I'. I». 
 f)4S. 
 
 I'., being the owner in fee of the land in (ples- 
 tirin, died intestate in September, IS.'i.S, leaving 
 his wife, the pi-c.seiit plaintill', ami two daughters, 
 who resided on the land for a short time after 
 his death. The widow made scvcr.il leases of 
 the land, and lin illy leased it to .M., thedefend- 
 •ant's devisor, who, at the expiration of his 
 lease, took a 'seiMind lease with a covenant to 
 deliver up at tie- end of the term. He purchased 
 the interest of one of the dau'.diters. ,aiid a new 
 lease, was thereupon made to him by the plain- 
 titr, the rent being reduced by one-third, because 
 it w.as considered that tlu! widow and daughters 
 were each entitled to a third of the rents. I'etiil- 
 ing this lease the tenant iiurchased the other 
 daughter's interest, and at the expiration of the 
 torin in IS7.S he refused to give np possession, 
 alleging that he; owned the land, and that the 
 ])l.iiiitili''s right to do\ver was b.arred by lapse of 
 tiine;-lteM, alii ruling the judginont of (Jaineron, 
 J., that M., the tenant, having, while owner of 
 one undivided half of the land, covenantiid to 
 give up possession to the plaintiff at the end of 
 the term, and having got into possession under 
 her, the defendants claiming under M, were estop- 
 ped from disputing her right, and must restore pos- 
 
 session to her before setting up an adv.Tse title : 
 that M., bv accepting the lease ,it .a reduction 
 of one third of the rent, on his piindi ise of the 
 d iu,ditcrs' iiitirest, had aei|nicsccd in the plain- 
 tilV's claim as d iwr,'ss, ,ind w.is estopped from 
 setting up the .Statute of Limitations ag.iinst 
 
 hei,aild ill it she wis entitle 1 thi'rcfore to jlldg- 
 rnciit fill one third of the land for life, and to 
 mesne prolits since the expiiMtioii of the lease. 
 I I'atte'woii /•. .Smith, I'-' (,t. 1!. I, rcmarKcd upon. 
 /'/, I" \. ilAcA',., (7 ,(/, :{ (». I! , (,). II. I). I.Tl. 
 
 j S. beiii'- indebted to the plaintiirs, entered into 
 
 ' an agrceiiicnt to inortg.a^e to them, amniigst 
 
 other lands, cert liii lands known as the Dominion 
 
 Hotel |iiopity. \ mi)rl.,';ige w.is on the same 
 
 <liy I'XiM iitcd, but b) mistike the Dominion 
 
 Hot(d property w.is ouiaied therefrom, and .a lot 
 
 owned by S. adj le mt tin . 'to inserted. Tliede- 
 
 feiid.int ii id bieii the t 'n.aiit of S., and .after the 
 
 ! mortgi,'e, attorni'd and piid some rent to the 
 
 pliintitrs, bdicviii'; (li.iii to have .a title to the 
 
 lands. In an action lor arrears of rent: -Helil, 
 
 I adirniiiig the jil L .lit of the ( loiinty < ioiirt of 
 
 i York, tli.at after ^ mil attornment and payment 
 
 I of rent, the defeiidaut could Hot be heard to 
 
 deny the pl,iinl.iH"s title, and they being the 
 
 [eipiitable owners of the I mil. Were entitled to 
 
 I recover. Hclil, .also tli:it the title not being oji'ii 
 
 to ipiestiiei by the dcf. nd.int, the County (/'oiirt 
 
 had juris lietimi. /liiii\ d/' Afonlrciil v. (lilchi'UI, 
 
 1 (i A. I!. li.V.». 
 
 .\'VI . llnMir.s okTkn.w r.< in Kkspkit hi" Mxi-uo- 
 
 I'KI.VriON Ol' LVM). 
 
 See //( /v '/'/(>■ \V ll:\iil Ciind /■J'llanii'iwM — 
 /•'//<•/, V. .l/e/.'.c, •2:i('<iy. I,{!l, p. Ii:(. 
 
 XN'II. l!i(iHTsoi- Kkvi:i!sionf:ii. 
 
 Held, that any act of tlio tenant without the 
 knowledge or sanction of the landlord could only 
 all'ci.'t his interest as tenant and could not preju- 
 dice the reversioner. IHidii v. Cro'n, -lO. U., 
 Chy. I). 4(ir). 
 
 XVIIl. Mis('E'.r,i,.\NKora Casks. 
 
 ' In replevin tlio dofemlant, who had mortg.agod 
 ! the demise 1 premises to one 10., clainicdas land- 
 lord, under a lease alleged to have been made by 
 ; him snbscipiciit to the in irtgagc, thro ; (|uarters' 
 neit. which had beim paid by the tenant to K. : — 
 : Held, that the evidence, set out in the report, 
 siiewed that K. was the ori','iiril and .actual 
 \ lessor, or, at all events that previous to the piy- 
 [ iiiciit of the rent av iw.!d for, the t 'ii mt had at- 
 ' toriied to E. with the defendant's consent. 
 MrLi'ininn v /fniniiiiii., 31 C. I*. 210. 
 
 15. leased certain premises to Y., who .assigned 
 tlu! lease to I'., and sold to him the goods on the 
 premises subject to a cliatttd mortgago to the 
 
 ' plaintiff ami others. V. gave a chattel mortgage 
 to the plaintiff .and others upon the-ic goods to 
 
 ' secnro to them the purchase money thereof. On 
 the 1st February the djfenlaiit took p issjsaion 
 of the promises under a verbal agruomont with 
 I'., that the latter should assign the lease to him, 
 and it was so .assigned on 4tli Juno following. 
 
415 
 
 LETTERS. 
 
 416 
 
 
 ?■ 
 
 
 'Jlieit Mils IK) cvitki.tc i.a to what 1 aig; in there 
 vas liftwiiii 1'. mid tlie ilffciitlaiit as to the 
 j;(if,ils, liiit the gcxjds idiiaiiiid on the |'ieiiiifes 
 •without the iKHitst ot the dtlfciidiiiit. 'J lie j laiii- 
 tifl ami his eo-iiiortgagttH suhttcjUHitly ttok 
 jioscetsicji of the gcoils inider tlieir chattel 
 inoiignge ; but on the fanic daj", lulore tliey 
 were removed, the huKllord feized thi ui torrent, 
 a iiortion ot whith was due heloredeleiidant took 
 jiotses.sion. L'jion the llronlii^e of the jiJaintitt 
 to J. ay the rent the landlord witlidrew. The 
 )ilaintili having letiifcd to kteji his j.k niisfi by 
 ] aj ing the lent, the landlord brought an action 
 again^t hni anil c(ni|t)kd jajnitnt. 1 he ijlain- 
 tiH now si.cd the dcleiidi;nt to rcccjver the an.ouut 
 so jiaid :— Held, that, there being no jirivity of 
 contract or estate Ijetween the delendaiit and 
 the jilaintili, and the goods not having been 
 originally iilaced in the ininiii-es at the tenant's 
 retjuest, i.nd having in fact been in the j (i.'-fcestion 
 of the jilamtill wlicn seized, the defendant was 
 not 1)(.und to jirotett thcni against sci/iire for 
 rent, vhiili he was not shewn to luiVe been liable 
 for: that the jilaintili 's lajuicnt thtrelore was 
 voluntaiy, to lar as concerned the delentiaut, 
 and ne could not lecover. JJtirim/ v. Fl i7.yoH, 4 
 O. E., Q. Ji. L>. C07. 
 
 liight to maintain action for injury to lateral 
 suiniort of bjiilding. ISee McVaiin v. Chifhotvi, 
 '2. O. 1!. sot), itijru. 
 
 utiw owned Viy H., and held it for a year, when 
 hccouveyidittoE.H.froni whom H. derived title 
 'Iheiewasno evidence to shew that H. knew 
 that the house was receiving more support from 
 his land than it would have recjuiied if it had 
 been constructed iu the ordinary way : — Held, 
 that owing to the unity of seizin of S., there hmi 
 not been twenty years' continuous enjoyment 
 of the support as an insemmt ; but that even if 
 there had been, no siuh nc(juieecence in the use 
 of the servient tentn:cnt had been she^vn as to 
 justify the jncsuniption that an easement had 
 been acquired by grant : — Held, also that wlitn 
 iS. sold ll.'s lot, there was no implied reservatiin 
 of the right of suppoit for the house: — Held, 
 also, reversing the judgment of the Queen's 
 Bench, 44 Q. B. 428, that under the ciroumstan- 
 , CIS theie Mas no evidence of negligence in fact, 
 ' and that the plaintili' was therefore not entitkd 
 to recover. Buckua v. Hiuitli et at., 5 A. R. 'Ml. 
 
 See also Walker 
 p. 97. 
 
 V. McJUHIau, 6S. C. R. 241 
 
 t. LATERAL 8Uri'01{T. 
 
 The plaintifl was entitled to the lateral sup- 
 port of the dcfendimts' land, in w hich they made 
 excavations tor the purposes of a rink, whereby 
 the plaintili 's land was damaged : — Held, that 
 in substituting aitificial suppoit for the natural 
 supijiort of the soil which had been renxved, the 
 detendants might eonstiuct it ot any mateiial, 
 provided it was a sutiicient suppoit tor the pur- 
 pose, and that they continued to maintain the 
 plaintili 's land in its pioper position. Held, 
 also, that in estimating the plaintifl 's damages, 
 uo sum should be allow eel ftjr damages to ariic 
 in future. ILc damages were assessed at ^'43, 
 but judgment was given lor the restoration of 
 the plaintili 's land; — Held, that the jilaintiti' 
 was entitleil to lull costs. l^)(Urr v. 1 1n Oiaiiile 
 turibiij uhd tikativij Co., 1 O. R., Lhy. U. 102. 
 
 Held, that an action against the iroprietor of 
 aeljoiniiig land ftr elauiage done to a building by 
 me removal of the lateral support afforded by 
 such adjoining land, may be maintaineel by the 
 tenant ot the building. McCunn v. Cliitfiolm, 2 
 O. E., C. P. D. 500. 
 
 The plaintiff, tenant for years of the defen- 
 dant S., sueel for loss of use of a tentnient in con- 
 seejuence of the fall eif the wall thereof, wliich 
 was causcel by the excavation of the adjoining 
 lot lor a cellar by the defendant H. v\ho owned 
 it. H. had excavateo his land in S( me places to 
 within a lew inches ot the dividing line, eh se to 
 which the luiuse in (juestion stood. 'J his house 
 had been built by S. in 11504, when he had a 
 lease of the lot for ten years, which gave him the 
 right to remove it at the expiratiein of the teini, 
 upon oak planks laid about t'lie foot UMder the 
 ground, in It-Cti, however, he acijuired the fee, 
 aud iu 1870, he also becime owner of the lot 
 
 LAAY STAMPS. 
 
 Where an examination of parties pursuant to 
 1 R. S. O. c. tO, s. 1()1, takes place l)efore a deputy 
 clcik of the crown, though not designated in the 
 order as acting in his otlJcial capacity, the fees 
 for such examination are payable in stamps, ai.d 
 not in money. JJewinark v. McCotui^ihy, 81'. K. 
 13C. — Osier. 
 
 LEASE. 
 I. Of Chattels, 410. 
 IL Ok EifiUEHY, 41(i. 
 
 III. Oi- Lanl— iS'fe LandlopI' and Tenant. 
 
 IV. Of Tollr— ,Sf« Way. 
 
 I. Ov Chattf.lh. 
 
 I See Oliver v. Adchjttte, 32 C. P. 90 ; 8 A. K. 
 1 122, pp. 409, 410. 
 
 II. Ov FisHEHY. 
 
 See The Queen v. JMiertucni, 6 S. C. R. 52, p. 
 123. 
 
 LEGACY. 
 See Will. 
 
 LEGISIATIVE ASSEMBLY. 
 
 i^'ee CONSTITLTIONAI, LaW — PAULlAUENTAIiV 
 
 E Lie HON.", 
 
 LETTERS. 
 
 I. Of Administeatiox— See Executoks ani' 
 Admin KsiiiATeiR.s. 
 
 II. CoNTHAcrs m—See Contract. 
 
416 
 
 year, when 
 
 ileiivsdtitk'. 
 
 lat H. knew 
 
 bupport (roiii 
 
 red it' it liail 
 
 way :— Held, 
 
 S., there h.ici 
 
 IS enjoyiuciit: 
 
 t that even if 
 
 ice ill the use 
 
 1 shesii <i8 t;i 
 
 nseiiient liiui 
 
 so that wlien 
 
 d leservntiiu 
 
 louge :— Hehl, 
 
 the Queen's 
 
 le ci roil ni Stan - 
 
 igcuce in fact, 
 
 o uot entitled 
 
 5 A. R. S41. 
 
 S. C. R. 241, 
 
 es pursuant to 
 efore a deputy 
 >igiiattd in tLe 
 aeity, the fees 
 in stamps, ai.<l 
 mo[thy, 8 P. I!. 
 
 417 
 
 LIEK. 
 
 418 
 
 AND Tenant. 
 
 P. 90 ; 8 A. 1!. 
 
 (S. C. R. 5'-', p. 
 
 IBLY. 
 
 'AMLlAJlKNTAliV 
 
 EXEfUTOBSAKl' 
 lACT. 
 
 III. Patent. 
 
 1. For Lands— See Crown Land.s. 
 
 2. For Inventions— See Patent of Inven- 
 
 tion. 
 
 IV. RoGATOHY—iS'cf Evidence. 
 
 LIBEL. 
 See Defamation. 
 
 LICENSE. 
 
 I. To cut Crown Timber 
 Lands. 
 
 See Ckown 
 
 II. Cab.s— .S>(? Cabs. 
 IIL Fefiries— *'« Ferkv. 
 IV. Tavei-ns and Shops— 5'ce Tavern.s and 
 
 OlIOPS. 
 
 Power of municijiality to impose a license tax 
 on commercial travellers discriminating between 
 resident and lum-resident merchants, traders, 
 &c. See Jonax v. G'dhtrt, 5 S. C. R. 3dG. 
 
 From minister of marine and fisheries. See 
 The Queen v. Jiahertxon, S. C. II. 52, p. 123. 
 
 licensp: commissioners. 
 
 Sec Taverns and Shops. 
 
 lien. 
 
 I. When it Exist.s, 417. 
 II. Mechanics' Lien Acts. 
 
 1. On Mortijaijed Prop"Vtij, 417. 
 
 2. Reimtration of Lien, 418. 
 
 3. Other Cdws, 419. 
 
 III. Attorneys Lien— 6'ce Attorney and 
 
 Solicitor. 
 
 IV. V^endou's Lien — See Sale of Land. 
 
 I. When it Exists. 
 
 Lien of secured creditor under R. S. 0. c. 107, 
 s. 30. See t'hamberlen v. Clark et ai, 1 O. R. 
 135, p. 271. 
 
 See Troop v. Hart, 7 S. C. R. 512. 
 
 II. Mechanics' Lien Acts. 
 
 [See 47 Vict. c. 18.] 
 
 1. On Mart (/aged Property. 
 
 A mortgagee tiled a bill for sale, makins certain 
 lieu-holders under the Act parties deteudauts 
 therein, alleging that the work, by virtue of 
 which tlieir liens arose, was commenced after the 
 registration of hia mortgage : — Held, that the 
 
 27 
 
 liun-holders should have been made parties in 
 tlio master's oliicu ; and plaintili's costs ol mak- 
 ing them defendants by Uill were disallowed on 
 revision of taxation. Jitc/.-inn v. /liinnnond et 
 at., 8 P. R. 157. Thoni, T(i.i:in</ Ojlirer. 
 
 In onler to preserve the lien which tlie Mech- 
 anics" Lien Act creates in favour oi a contractor 
 performing work on a house orotlier building fof 
 the owner, it is necessary to register the same 
 during the progress of the work, and as soon as 
 the claim arises, or it may be imstponeil to a 
 mortgage created subsenueiitly, but registered 
 prior to such lien. Proudfoot, V.('. , dissenting. 
 Jlyiies V. Siiti/h, 27 Chy. 150 ; 8 P. R. 73. 
 
 The plaintiffs instituted proceedings to enforce 
 a mechanics' lien assigned to them, which had 
 been duly registered, and a suit thereon prose- 
 cuted. The plaintiU's claimed to l)e entitled to 
 priority in respect of such lien over the claim of 
 a mortgagee — whose mortgage was prior to the 
 contract under which the lien arose — for the 
 amount by which the selling value of the pre- 
 mises had been increased Ijy the work and ma- 
 terials placed thereon. The assignee of the 
 mortgagee demurred, on the ground that he was 
 an owner of the land, witiiin tiie meaning of the 
 Act, R. S. O. c. 120, s. 2, and cliai proceedings 
 hail not been taken against him within the time 
 specified by the Act : — Held, that he was not 
 such an owner, not being a [lerson upon whose 
 reipiest or upon the credit of whom, &c., the 
 work had been done. Bank u/' Mmitreitl v. Hajj- 
 uereluL, 29 Chy. 319. 
 
 Where B. gave a mortgage to \V. , and after- 
 wards employed G. to do certain work and fur- 
 nish materials on the projiei'ty mortgaged : — 
 Held, that O. was entitled under R. S. O. c. 
 120, s. 7, to a lien for the amount owing for tiie 
 said work and materials in priority over W.'s 
 mf)rtgago ill respect of the increased value of the 
 said property l)y reason of the said work and 
 materials ; — Hold, also, that although \V. had 
 previously co.iimenccd proeee<liiigs under an al- 
 leged lien in respect of the saiil proixirty against 
 B., subsequently to the coiiinienceiiicnt of which 
 proceedings the work was iloiie in respect of 
 which the present lien was now claimed, it was 
 not necessary that (4. should have l)een made a 
 party to the former action, and the fact that (j. 
 was not included in the master's report in that 
 action, as among those hohling liens against the 
 projjerty in (piestion, was n<; bar to his maintain- 
 ing this one. Each lien under the Mechanics' 
 Lien Act stands on its own footing, every lion- 
 holder being entitled to securitj' upon the en- 
 hanced value arising by reason of his work and 
 materials. li<tnk of Montreal ft <ii v.Uajf'teret 
 ai, 3 0. R., Chy. D. 183. 
 
 2. Fei/isti-ation of Lien. 
 
 The plaintiflFs delivered and set up for the de- 
 fendant a boiler and engine, suiii)lied by them- 
 selves, in September, 1878, upon certain terms 
 of credit, which expired on the 25th April, 1879. 
 Registration of the lien was effected on the 23rd 
 December, 1878, and a bill to enforce the lien 
 was tiled on the 31st May, 1879:— Held, that 
 the effect of the delay in the registration of the 
 lien was, that the lien umlertlie Act had ceased 
 to exist, notwithstanding the plaintiffs had done 
 
419 
 
 LIGHTS. 
 
 420 
 
 r 
 
 ,.1. 
 
 
 some immatt'iinl work \\\wn the iiiacliiiiory late 
 in DeceiiilxT, IS7H; tlie thirty ilayw wittiiii wliicli 
 the re;,'istr:itinn was to ))c efruoted l)eiiij,' to be 
 coiniuitc'il not from tlie time suuli alterations 
 wei'e m.iilc, or the (Ufects in tlie maehiiiery were 
 renieilii<l, but from the time wlien it was su]i- 
 plied and iil.iced, i. c, in Seiitomber, 1878. Xc'ill 
 V. Ctirroll, "28 Cliy. 30. AHirmed on rehearing. 
 lb. :«!). 
 
 Qmere, as to the effect of the .\ct when the 
 creilit <loe.s not expire until after thirty days 
 from the completion of the work, and there has 
 been no registration of lien. /It. 
 
 Where G. claimed, under the Mechanics' Lien 
 Act, a lien in respect of materials furnished, l)y 
 virtue of an assiirnment from the original lur- 
 iiisher thereof ;— Held, Ci. had a right to register 
 a claim for tlie same under the said Act, but the 
 affidavit of vcriUciitiou required by sec. -I, subs. 
 2, must be made by himself, and not ])y the as- 
 signor. O'l-itiit V. JJuiiii el (il., 3 0. K., Chy. D. 
 370. 
 
 See Hj/iiP.'' V. Smith, 27 Chy. 150, p. 418; Mr- 
 P/wrson H al. v. Gidijf <'l al., 4 U.K. 24(), p. 420. 
 
 3, Other Cases. i 
 
 The plaintiflf furnished materials to G. for a j 
 building which G. had contracted to erect for 
 the defen<l:vnts. After the defendants had paid , 
 G. all there was due to him, and after (r. liad 
 aban loned his contract, the plaintilf notified the 
 defend.ints of his unpaid account against (1. for ' 
 such materials ; and filed a bill to enforce his i 
 lien more than 90 days after the materials had I 
 been furnished. A demurrer for want of ecjuity 
 was allowed, with costs; and— Senible, that even i 
 if the bill had been filed in time, there woulil not 
 have been any lien. Br'njus v. Lee, 27 Chy. 4()4. 
 
 Reinarks upon the various provisions of the I 
 ^'echanies' Lien Act. lb. I 
 
 In a building contract for the erection of a ! 
 church, the contractor agreed with the building ! 
 committee to settle with all other persons doing ' 
 work upon or f 'rnishing materials for the con- 
 stnictiort thci'cof, and stipulated that neither ho : 
 nor they should have .any lien ujioii the buildiiig ^ 
 for their work or materials : — Held, binding on I 
 the sub-contractors, though made without their 
 knowledge or assent Forhnn v. Lalonde, 27 
 Chy. fiOO. 
 
 It was also stipulated that 20 per cent, of the 
 contract jirice should not be payable until thirty 
 days after the architect should have accepted the 
 work, and that the balance of the contract ])rice 
 so to be retained should not be payable until all 
 sub-contractors were fully paid and settled with : 
 — Held, ( 1 ) that no trust was thereby created in 
 favour of the sub-contractors as to the sum 
 agreed to be retained ; and the contractor hav- 
 ing assigned his interest in the contract to a 
 third party, and the committee having waived 
 their right to insist that the sub-contractors 
 should be paid : — Held (2) that the assignee was 
 entitled to receive 20 per cent, to the exclusion 
 of the sub-contractors. lb. 
 
 Where a contractor for the building of a house, 
 made default in carrying on the work, and in 
 consequence, the owner, acting under a clause in 
 
 the contract to that effect, dismissed him, and 
 agreed vcrb.dly with a sub-contractor, wlio had 
 lieen emi)loye(l by the contractor, that if the sub- 
 contractor wouhl go on and finish the work, he, 
 tlie owner, would pay him : — Held, that the suli- 
 contractor was entitled to a lien for all work 
 done under such agreement as a "contractor," 
 and as to such work he was no longer in tiie 
 jiosition of a sub-contractor. / '/•/(- v. //tiiitcr 
 i <■/ fif. ; Oiii'-sl ft al. V. Hunter et rJ. , 2 O. R., Chy. 
 
 i 1). 2;«. 
 
 Under sec. IT) of the Mechanics' Lien Act, R. 
 S. O. e. 120, suits brought by a lienholder shall 
 be taken to be bnmght on behalf of all licn- 
 liolilers of the same class ; and in c ise of the 
 plaintiff's death, or his refusal or neglect.to iiro- 
 ceed, the suit may, by leave of the court, be 
 jirosecuted by any lienholder of the same class. 
 Mrl'hirsuii el al. v. (Jeilije, et al., 4 I). It., C. 1*. 
 
 1). 24(i. 
 I 
 
 I A mimber of um^jistcred lienholders brought 
 I an action under the Act to enforce their liens 
 against one <}. , which proceeded to the close of 
 I tlie ple.idings, and was then dismissed with the 
 plaintifrs' .assent. P., the assignee of a regis- 
 1 tered lienludder, I'elying on the action, took no 
 j steps to enforce his lien or to register a certifi- 
 I cate within the 90 days, under sec. 21. On lie- 
 I ing informed of the dismissal of the action, he 
 ' applied to be allowed to intervene as plaintiff 
 !uid to prosecute the suit on his own behalf : — 
 : Helil, Gait, J., dissenting, reversing the judg- 
 ( ment of Hagarty, C. J. , which atHrmed the judg- 
 ment of the master in chambers, that the ap- 
 piicjint shouhl be allowed to intervene and pro- 
 secute the action ; and that the applicant was 
 of the same class as the plaintiffs, in that they 
 all contracted with or were enqiloyed by (J. 
 Lienholders "of the same class" are those who 
 have contracted with the same person, whether 
 their liens are registered or not. Per (Jalt, J. 
 The applicant was not of the same class as the 
 plaintiffs, for he was a registered lienliolder ami 
 came within sec. 21, whereas they were unrcgis- 
 tere<l and came within sec. 20 ; and the 90 days 
 having expired the applicant's lien was gone, so 
 that even if the plaintiffs' suit were still pending 
 the ajiplicant could not have become a party to 
 it. lb. 
 
 LIFE ASSURANCE. 
 
 See ISSIJRANOE. 
 
 LIFE ESTATE. 
 
 See Estate. 
 
 LIGHTS. 
 
 Where a person has enjoyed an easement by 
 having windows overlooking the lands of an ad- 
 joining proprietor for any period, even one day, 
 over nineteen years, he cannot be ileprived there- 
 of unless he subsequently submits to an inter- 
 ruption of such easement for a period of twelve 
 months. The propriety of such a rule in the towns 
 of this province remarked upon and questioned. 
 
420 
 
 421 
 
 LIMITATION OF ACTIONS AND SUITS. 
 
 422 
 
 (l liiin, nnd 
 )!•, wlio had 
 tif tlio sul)- 
 e work, lio, 
 lilt tlio sub- 
 )!• all work 
 uoiitructor," 
 lUi^cr ill the 
 " V. Ilinilcr 
 O. R., fhy. 
 
 iieu Aut, R. 
 holtlur shall 
 of all liim- 
 cise of the 
 ij,'lt;ct.to |)ro- 
 10 oourt, be 
 sami! class. 
 (). K., C. 1'. 
 
 ders brought 
 1 their liens 
 the close of 
 scd with the 
 .! of a rcgis- 
 tioii, i,ook no 
 ster a certifi- 
 .21. On be- 
 he action, he 
 e as plaintiff 
 wn behalf : — 
 iig the judg- 
 iied the judg- 
 tiiat the ap- 
 -ene and pro- 
 pidicant was 
 , in that they 
 ployed by (J, 
 ire those who 
 I'son, whether 
 Per (Jalt, J. 
 e class as the 
 ienholder and 
 were unrcgis- 
 d the !)0 days 
 was gone, so 
 3 still pending 
 me.a party to 
 
 Tiie case of Flight i». Tliomw, II A. & E. G88 ; 
 8 ('I. & F. -'}l, oonsidere I and followed. Burn- 
 ham V. Garvey, '27 Chy. SO. 
 
 See 13 Viet. c. 14, s. 1. 
 
 LIMITATIOX OF ACTIONS AND SUITS. 
 I. CLAurro Reai.tv. 
 
 1. Opvnilio)) of Ihr StafKfc, 421. 
 
 2. Nature and Prdo/nf Posscmon, 421. 
 
 3. Possesion an against the Crown, 423. 
 
 4. lihiht of Crown to plead Prescription, 
 
 42,'?. 
 
 5. Tiuant.t in Common, 423. 
 
 6. TiiMuts at Will, 424. 
 
 7. Mort(ja(jor and ^^orllJagee, 425. 
 
 8. Pot.ii'.-ision an ag<unKt Eipdlahh Tenant, 
 
 427. 
 
 9. Serxint or Caretaker, 428. 
 
 10. Posxesnion Ihj or Aijainst Infants, 429. 
 
 11. Adnrse Poisi .•<Miun, 429. 
 
 12. Ejxlusive Pos.^ession, 430. 
 
 13. Actual ami Constructive Possession, 
 
 431. 
 
 14. Mistaken Boundaries, 431. 
 
 15. Eutri/ or Claim, 432. 
 
 16. Discontinuance, 432. 
 
 17. Acknou-ledjment of Title, 433. 
 
 18. Other Cases, 434. 
 
 II. Claim to Easement.-^, 436. 
 III. Pkksonal AtTioN.s, 437. 
 
 I. Claim to Realty. 
 1. Ojieration of the Statute. 
 
 Where a right to relief in respect of lands arises 
 during the progress of a cause, and more than 
 ten years are allowed to elapse before acting 
 thereon, such right will be barred by " The Real 
 Property Limitation Act," U. S. 0. c. 108. Jioss 
 V. Pomeroij. 28 Chy. 435. 
 
 Operation of statute in case of lands taken by 
 railway loc right of way. See Thompson v. The 
 Canada Central Hi). Co., 3 O. R. 13(5. 
 
 1 easement by 
 ands of an ad- 
 even one day, 
 leprived there- 
 3 to an inter- 
 riod of twelve 
 le in the towns 
 id questioned. 
 
 2. Xalure and Proof of Possession. 
 
 Where a vendor was not in possession of lands, 
 the fact that for upwards of ten years he liad 
 paid the taxes on the property is not such a pos- 
 session as is requisite to bar the right of the 
 owner under the Statute ot Limitations. In re 
 Jarvis V. Cook, 29 Chy. 303. 
 
 In an action of trespass quare clauaum fregit 
 for the purpose of trying the title to uertaiu land 
 adjoining the city of Belleville, the defendants 
 
 pleaded not guilty ; and 2nd, that at the time of 
 the allcjed trespass the s lid linil was the freehold 
 of the ilefend ints, M. K. McO. and .1 L. McC, 
 and they justified breaking and entering the said 
 close in their own right, and tlie other defendants 
 as their servants, and by their command. The 
 case was tried by Armour, .!., without a jury, 
 and he rendered a verdict for plain titJ' with f30 
 ilauiages. Tlio judgment was set aside by the 
 Court of Common Pleas, and they entered a 
 verdict for the defendants in pursuance of R. S. 
 O,, c. 50, s. 287. On appeal, the (Jourt of Ap- 
 peal for Ontario reversed this judgment, and re- 
 stored the verdict as originally fonml by Armour, 
 J. The defendants thereupon appealed to the 
 Supreme Court : — Keld, that the appellants (de- 
 femlants), on whom the onus lay of proving their 
 plea of liljerum tenementuin, had not proved a 
 valid documentary title, or jHissessioii for twenty 
 years of th.at actual, contiiiu<)ns, and visible 
 character necessary to give them a title under 
 the Statute of Limitations ; therefore plaintiff 
 was entitled to his verdict (Henry, .1., dissent- 
 ing.) McConaghij v. Denmark, 4S. C. R. r)09. 
 
 Actual occupation of land is not essential to 
 give a right to maintain trespass by one who has 
 the legal title, it is sutlicient that he enter upon 
 the land so as to put iiimself in legal possession 
 of it :— Held, that putting up boarils on the land 
 by the owner, stating that tiie land was for sale, 
 was a sutlicient tntry upon his part to vest the 
 legal possession in him to enable him to maintain 
 formally an action (;f tresjiass. Donovan v. Her- 
 bert, 4 O. R. , C. P. D. 035. 
 
 In 18i>3 M., the owner of the land in qnestion, 
 conveyeil it to P. I)., who in 1859 conveyed it to 
 L. I). Neither P. D. nor L. 1). ever entered into 
 occupation of the lot, which was a vacantone. in 
 1855 the ilefendant, who was a builder, with the 
 knowledge and consent of P. 1)., used the lot for 
 depositing his building materials on, and had 
 continued to do so ever since, but with the like 
 knowledge and assent of L. D. after his purchase. 
 In 187(i L. 0. fenced the lot, leaving a gate for 
 defendant's convenience ; he also planted a small 
 portion of it, and allowed soil to be taken from 
 it to level it. In 1877 P. D. was declared in- 
 solvent, anil S., the assignee in instdvency, filed 
 a bill in Chancery to set aside the deed of 18.59 
 from P. I), to L. \)., as having been made in 
 fraud of creditors. In 1879 defendant contracted 
 to purchase the lot from L. U. for .§2,400, on 
 which he paid S.'iOO. In 1880 a decree was ob- 
 tained setting aside the deed of 1859, which was 
 attirmod on rehearing. This was alfinned on ap- 
 peal, defendant ))eing suretj' for L. O. for the 
 costs of the appeal. He had never paid any taxes 
 on tiie lot. In 1880 nine feet of the lot were 
 sold for taxes, and defendant became the pur- 
 chaser ; but it was redeemed ;— Held, under 
 these circumstances the defendant's possession 
 was not such as to give him a title under the 
 Statute of Limitations ; that the plaintifif was 
 not shewn to have lieen dispossessed, or to have 
 discontinued the possession : that the agreement 
 by defendant to purchase was evidence to pre- 
 clude him from setting up a title by possession 
 against the plaintiff, as was the fact of his having 
 become security fir L. D. in supporting his, L. 
 D.'s, title. lb. 
 
 The ilefendant, husband of one of several tea- 
 ants in common, being in puss mission of the joint 
 
423 
 
 LIMITATION OF ACTIONS AND SUITS. 
 
 2U 
 
 ha. 
 
 3.: 
 
 estate, pnrcliasfil the saiiiu at blieriirs .sale, of j 
 which fact tlic co-tenants were aw.aiv, Imt tdok 
 110 »te|m to ini]icach the tran.sactioii iinlil uftur 
 such a hi)isc of time as that under the statute 
 the (lefcnihmt aci|uiie(l title hy iios-session. The j 
 court, on a bill tiled hy the other tcnaut.-i in . 
 coinnion asking to set aside tlie slieriti'.s .sale and ■ 
 deed on the ground of fiaud and eolhisioii he- i 
 tween the defendant and execution creditor, , 
 negatived such chaiges, and dismissed the bill, 
 with costs. Whether the sale under execution ' 
 was operative or not, the defendant having held 
 possession ever since, claiming the pieuiises as 
 absolute owner, the title by virtue of the statute 
 of limitations riiiened into a tide in his fa\ our. . 
 Kenheili/ v. liati iihiii, '1~ Ch}". 380. ' 
 
 111 order to obtain conveni( lit .icetss to the up- 
 per rooms of their house tlie plaiiitilis coiistiucted 
 a wooden platfoini, stairway and landing, on tlie 
 outside of the house on the defendnnt's land. 
 This structure was composed of planks laid ujiou 
 blocks or scantling resting upon the giouud, lait 
 the head of tlie st:iiis was sujiported upon jiosts 
 which rested upon tli'j gi'ound. The platform 
 and stairway weie oven to every oiie, ineiuding 
 the defendant, and tliire w;is no bar or gate to 
 prevent defendant ,10111 entering on his property. 
 The defendant to< k no jiroeeedir.gs against tlie 
 plaintiti's until t.ie expiration ol ten years • — 
 Held, revel siiii, the decree of Spraggc, c'. , '2() : 
 Chy. COS, tliat the plaintifl's had not such josses- 
 sion of the land covered by the structure a.s by 
 force of the IStatute of Limitatiiiis to vest in the in 1 
 a title ill fee simple ; but that even it the statute ; 
 had eomnieiiced to lun it was .sto|iped by the' 
 fact, as stated in the e\idenee, that (hiring the 
 ten years tlie defiiulant had timporaiily taken 
 up the platform, and useil the land f(jr his own 
 purj OSes. It v as held <iii the evidence that this 
 was not shewn to have been done by the plain- 
 titis' permission ; but Qnare, per ratterson. J. 
 A., whether il it haii been it would not still have 
 interrupted the operation of the statute. (Jrijfilh 
 ft al. V. Broun, o A. li. 303. 
 
 3. PosKcsiiioii (If yljainut the Crown. 
 
 The Statute of Limitations was held not to be 
 a bar to an action though brought by the crown 
 in its capacity as trustee of the land in iiucstion 
 in the suit. Kegina v. Williams, 3!) t^. li. 3i>7, 
 followed. Afloin(i/(i< III r<(l v. Thv Midiaiid H. 
 W. Co., diO. R., Chy. D. oil. 
 
 4. Huiht of Crown to Plead Prescription. 
 
 Held, that the Statute of Limitations is pro- 
 perly pleadable under sec. 7 of the 1 >omiiiion Peti- 
 tion of Right Act, 187(J. Tylie v. Tlie (/uetn, 7 
 S. C. R. (ioL 
 
 See also C/ievricr v. 'J7ie (Jtieiii, 4 ,S. C. R. L 
 
 5. Tenants in Cumnion. 
 Where one of several tenants in common enters 
 
 Olid dispossesses a trespasser he is, as regards his 
 co-tenants, in possession simply as any stranger 
 won!'! he ; and such possession doi's not enure to 
 the benetit of his co-tenants, i'cr Cameron, J. 1 
 The act of one co-tenant in so taking possession , 
 would be by \ irtue uf bis legal estate, and his so | 
 
 doing would enure to the bein.'tit of his co- 
 tenants ; thus giving a fresh starting point for 
 the statute to begin to run against tliein. .Sliep- 
 heidsoii V. .McCullough, -t(i (,>. B. "jT.'J, 11. 432, 
 remarkeil, u]ioii and as ap[died to the facts of 
 this case, ajiproved. Jiarii-< v. Mitilir, 7 A. K. 
 •114; 30 C. r. 4S4. 
 
 (5. Ti luutti III Will. . 
 
 An entry upon laud under assertion of right, 
 and verbal subniission by the occupant, and con- 
 sent to remain as tenant to the owner, create a 
 new teiiiiney at will, and give a fresh point of 
 departure under the .'Statute of Limitations. 
 Where the attention of the jury had not been 
 sufiit'ieiitly called to the (]Uestion whethir this 
 took jdaee on the juemises, a new trial was 
 granted. Sutilh v. Ktuivu, et al., 4() Q. JJ. 1{J3. 
 
 John <'., being owner in fee of the land in 
 (|uestion, sonietinie after l!5r)4 placed his brother 
 James C. in possession, rent free. In 18()7 <le- 
 feiidant, luiviiig married a daughter of Janus C, 
 went to live with the latter and oceuj^ied part of 
 the house, at the instance of John C. . v\ho v\ished 
 his niece to remain in the house and take care of 
 her intiini mother. John C. died llnd Septem- 
 ber, 1874, having devised the land t(» the plain- 
 till'. James C. died in 1S73 or 1874, and his 
 wife about a year later, and the defendant and 
 wife continued in possession. In 187"> one (i. 
 Went to the house with the plaintilfs hu.^li.aid, 
 with the view tif renting it, when defendant 
 shewed them over the house, and said if it was 
 going to be rented he Would lent it himsilf and 
 pay as much for it as any one, and he sjike of 
 inlying it. 'I he plaintilf having brought this 
 ejectintntin March, 1871), : — Held, th.it plaintitf 
 was entitled to recover as against deiend.inl. Per 
 Hagarty, C.J. — 1 he defendant Mas never iLiiant 
 to John C. during the liletime of JaniesC and his 
 widow; and the statute did not begin to run in his 
 favour till a year alter the death of the latter. 
 Per Armour, J. — The entry of the defendant in 
 18(i7 by John C.'s authority deterinined the ten- 
 ancy at will of James C, tin retofoio existing, and a 
 new tenancy at will by deteiidant and .lames ('. 
 thereupon liegaii, w hicli was deteiiniiied by the 
 death of James C.'s widow, when defeiidaiit 
 became tenant at sutlerancc to the plaiiititl', aiul 
 her entry, by her husliaud, with (i., acijuiesced 
 in by the defendant, was a sullieient entry to 
 create a new tenancj' at will and stop the run- 
 ning of the statute. Coojii r v. J/itiiiitlon, 45 (i- 
 15. 50-J. 
 
 Whenever a new tenancy at w ill is created, 
 this forms a fresh starting point for the running 
 of the Statute of Limitations. Therefore w here 
 A. was let into possession of certain lands as ten- 
 ant at will to 1)., in 1870, and 15. died in 187S, 
 having devised the hinds to trustees in trust for 
 A, for life, and then in trust forC, which devise 
 A. in no way refused, but continued in possession 
 istensibly as before, and now claimed title by 
 length ot possession against the said trustees and 
 V. : — Held, that A. must be presumed to have 
 accepted the devise, and his retention of posses- 
 sion must be attributetl to his rightful title under 
 the devise ; and therefore even if A. could be 
 eonsideied as tenant at will to his trustees, and 
 capable of aciiuiring title by possession as against 
 them anil C, which under R. S. U. u. 108, s. 5, 
 
•2U 
 
 425 
 
 LIMITATION OF ACTIONS AND SUITS. 
 
 426 
 
 >f liis co- 
 
 jtoiut for 
 
 cm. Nliep- 
 
 r:{, 1.. 432, 
 
 lie filets of 
 r, 7 A. R. 
 
 Ill of right, 
 lit, ami cdii- 
 r, crcMtu a 
 ;sli iiiiint o£ 
 JiuitiitidiiB. 
 (I iiiit liLun 
 lietliir this 
 rv triiil was 
 Q. il. 1G3. 
 
 the land in 
 
 liisi IjidthcT 
 
 In KS(i7 (le- 
 
 f JaiiJts C, 
 
 ij.il. (1 jiart of 
 
 vlio wislic'il 
 
 take care of 
 
 11(1 ^'tiitoni- 
 
 ) the I'laiu- 
 
 s74, aiul his 
 
 fciidaiit ami 
 
 187") <iiio (i. 
 
 r.s liu.sliaiul, 
 
 II ikl(ii(hint 
 
 ai<l if it was 
 
 hiiiisih and 
 
 lie sji.ke of 
 
 iniuglit this 
 
 that iilaiiititr 
 
 eiidaiil. I'er 
 
 never Icliaiit 
 
 lesC. anil his 
 
 1 to run ill his 
 
 )l the latter. 
 
 defendant in 
 
 ined the teli- 
 
 xi.^tiiig. aiiila 
 
 1(1 dailies ('. 
 
 iiiiied liy the 
 
 n defendant 
 
 iilaintili', and 
 
 , aciiiiiesced 
 
 eiit entry to 
 
 itoj) the run- 
 
 milloti, 45 Q. 
 
 1 is created, 
 the running 
 refore where 
 lands as teii- 
 ied in KS7S, 
 i in trust for 
 rthicli devise 
 in iKissession 
 lied title by 
 trustees and 
 ned to iiiive 
 on of iiosses- 
 il title under 
 A. eould lie 
 trustees, and 
 on as against 
 c. lOS, 8. 5, 
 
 suli-s9. 7, 8, he could not, yet on tlie death of B. 
 a new tenancy at will was created, and a new 
 liurind I'oininenced for the running' of the statute, 
 wliii:h had not at the time of action brougdit, 
 ciiiitiiined long enough to give the iilaintill' title 
 by possession. J{(' Jh'foi', •_» O. K., Cliy. 1). (W.S. 
 
 H., in 18()7, permitted the defendant L. to 
 OLCii]iy certain lamls upon an alleged agreeinoiit 
 that in lieu of rent he should make iniiiroveinents 
 sucli as were re(|uire(l for L. 's trade, but not de- 
 iiiicd as to extent or value, of which H. wouhl 
 obtain the benefit, and that T,. would give up 
 possession wliencver K. reijuired it — there being 
 no agreeinoiit fur any term. K., between 18(17 
 and IS7!I, went occasionally (w the place and 
 spoke wi''' L. about the improvements, telling 
 hiiu to make such iinprovenients as he chose. 
 Ill I87!>, after L had b(!come financially involv- 
 ed, he restored the possession of the premises to 
 K.: -Held (Burton, .1. A., dissenting), that L. 
 cou'd not have set up a title under the Statute 
 of l.iiiiit.itions ; nor could the plaintiffs, his cre- 
 ditiirs, claim the land as having been so acquired 
 by him. I'er Spragge, ('.,]., and Osier, .1. — The 
 entries of K. in going upon the laiiil, were^sudi- 
 cieut to prevent the statute from running : and 
 per .'^pragge, ('..I., H. might be said to have been 
 in reiei[>t of the " ])rotits " of the land, through 
 its increase in value by reason of the i!n])rove- 
 meiits. I'er I'attersoii, .f. A. --The evideiiee 
 shewed that by the successive improvements 
 made as they were, the iTlation of landlord and 
 tenant was continued or created anew, even 
 th ugh the improvements to be made were not 
 strictly in lieu of rent, nor could be treated as 
 prolits of tile land. Per Hnrtoii, J. .■\. — L. upon 
 the evidence entered as tenant at will ; there 
 was no receipt of " profits " within the meaning 
 of the statute ; and no entry inconsistent with 
 the lessee's title ; and L. having acquired a title 
 by ]iossession the land was lialde for his debts. 
 If L. had acquired a title under the statute, his 
 giving up possession .again to J{. would not re- 
 vest the estate. WorhnKm ct ill. v. Jiolili et ai, 
 7 A. K. .Ss;» ; 28 (.'liy. 24:}. 
 
 See Ryan v. lijnn, 5 S. C. 1!. 387, p. 429. 
 
 7. Martiiaijnr uml Mortiiniii-f. 
 
 The plaintilfs, the administrator and heirs-at- 
 law of a mortgagee, iiled their bill against the 
 mortgagor on or before the 20th Uetolicr, 18(i4. 
 After service, and on lijth November, 18(>4, an 
 agreement was entered into between the parties, 
 wliei'eliy the plaintiffs took notes for the mortgage 
 nioney, the 1st payable Ist June, IStJfi, and the 
 others in the six foUowing years, whereupon iiro- 
 ceedings on the mortgage were suspended. The 
 defendant made a payment iu June, 18(17, and 
 died in 18(59. The notes were not paid. The 
 suit on 29th August, 1879, was revived against 
 the infant heir of the mortgagor: — Held, ttiat the 
 claim was barred by ll.S.O. c. 108, s. 23; but in 
 case of the plaintiffs desiring to obtain the fruits 
 of a judgment recovered against the original de- 
 fendant, the bill was retained for a year as iigainst 
 the infant defend.ant, as he would be a proper 
 party in a proceeding against the personal repre- 
 sentative of his ancestor to enforce the judgment. 
 Ihx^ v. I'omeroy, 28 Ghy. 435. 
 
 The possession of a stranger which has not 
 ripened into a title as against the owner of land, 
 
 will not enure to the benefit of him so in posses- 
 sion as against tiie mortgagee, so long as hia in- 
 terest is regularly (laid by the owner. Chnmber- 
 lain V. rVftr/-, 28 Chy. 454. 
 
 When the right of action for entry or fore- 
 closure is taken aw.iy by virtue of 11. S. O. c. 
 108, s. 15, the title itself of the mortgagees is ex- 
 tingnished, and the right of action wlndly dis- 
 ai.pears. Cuioi v. U'uhli, 1 0. I!., Chy. D. 167. 
 
 A mortgagee who has suffered the statute to 
 run before he asseits his right of entrj' cannot, 
 liy afterwards getting possession of the property, 
 revive his title to it, but he is in as a mere tres- 
 passer. III. 
 
 The insolvency of the mortgagor and the ap- 
 pointment of an assignee in insolvency, does not 
 suspend the running of the Statute of Limita- 
 tions, so as to preserve the lien and security of 
 the mortg.agee on the land mortgaged. lb. 
 
 1'lie renuMly by w.iy of foreclosure or sale in 
 mortgage suits is a proceeiling to recover lands 
 within the meaning of K. S. O. c. lOS, s. 4. 
 'i'iierefore wlien a suit to foreclose a mortgage 
 was commeiiced ten ye irs and eiidit months after 
 the date of the default in payment, and the plain- 
 titr claimed payment of the mortgage debt, pos- 
 session and foreclosure : — Held, that the only 
 relief to which the plaintill" was entitled, was 
 judgment upon the covenant for payment. Flet- 
 dier V. Jf<„l,trii, 1 O. R., Chy. 1). 155. 
 
 Where mortgagees iu fee in jiossession execu- 
 ted a deed purporting to "convey, assign, re- 
 lease, and (piit claim" to the grantees, "their 
 heirs and assigns forever, all and singular," the 
 mortgaged land, habendum " as and for all the 
 estate and interest " of the grantors "in and to 
 the same " : — Held, suilicient to pass tiie fee to 
 tlie grantees : — Held, also, the benefit of the pos- 
 session held by the mortgagees, without any 
 written acknowledgir. nt of the title of the mort- 
 gagor, jiassed by the above deed to the grantees, 
 and coupled with their own subse(]uent po,?ses- 
 sion for the necessary period conferred on them 
 an absolute title to the land by virtue of K.S.O. 
 c. 108, ss. 15, 19. Uri/lit v, McMurniij. 1 O. R., 
 Chy. 1). 172. 
 
 C, being the locatee of the Crown, iu 1860, 
 mortgaged the north-half and the south-half of 
 the lan(i by two mortgages to McM. In IS65he 
 died. In 1870 and 1874, Mc.M. assigned the 
 mortgages respectively to I). In 1875 the patent 
 of the north-half issued to one Cainiibell, who 
 paid the purchase money due to the Crown on 
 the whole hit, at the request of M. and A., the 
 widow and son of C. , and the patents of the east 
 and west halves of the south-half, issued to M. 
 and A. respectively, without any intention (as 
 shewn by the memorandum in the Crown Lands 
 Department) to cut out the right, if any, of D. 
 under his mortgaije. In 1876, D., under the 
 power in his njortgages, sold to L., who, in 1876, 
 made a mortgage to the jilairtiff, on which this 
 suit was brought. M. and A. had, in the mean- 
 time, always occupied the land without paying 
 principal or interest, and they claimed title by 
 possession: — Held, athrming the judgment of 
 the Court of Chancery, 27 Chy. 25.% that M. 
 and A. had, under the Statute of Limitations, 
 acquired a title i>y possession. WaUony, Lindsay 
 et ill, 6 A. R. 609. 
 
4'27 
 
 LIMITATION OF ACTIONS AND SUITS. 
 
 428 
 
 *-v 
 
 
 H., being seised of laml subject to a niortgnge 
 to L., dateil 14th (_>ct(i1i(r, lS(i.S, and to (Hio M., 
 dated I'ith January. lS(i4, made an assigiuiRUt 
 to W. on '2'2ih\ Novcndier, ls(i(i, umltr the In- 
 solvent Act of i.S(!4. On '_\Stli .Janiiai y, KSdS, he ! 
 obtained his distharge. On '-'7 tli January, I.S<;!), | 
 he obtained from M. an asi^ignnieiit of M'smort- j 
 gage ; and on 3rd May. ISfi'.l, lie made a eonvey- ^ 
 ance under the power i'f sale in this mortgage to I 
 F. H. to the use of his, the grantor's wife, his | 
 co-defendant, the eonsideratiou n.entii'lied heing 
 !f'250, whieh was eredited on the mortgage. On | 
 12th April, ISd'.t, L. a.xsigned his mortgage to 
 M. & B., who, on •-'Hth Mareh. IM.", assigned it 
 to W. In lf}7!> II., having )ii'oeurid assignuitnts 
 to himself of most of the elainis against his in- 
 solvent estate, jiresented a petition signed ))y 
 himself to eomj el W. to wind it uji. lie alleged 
 that M. & IJ. held the L. moitgage in trust for 
 the estate, and asked to have the estate realized 
 tend distriliuted among the ereditois. A sale was 
 accordingly had on ;.'Oth April, ISSO, of all the 
 right, title, and interest of the insohent in the 
 livnd ; and the advertisement further stated that 
 the pureha-ser w ould aeipiire only such title as 
 the vendor had as assignee. II. attendeil at the 
 sale, and ohjeeteil to the sale of the land, and 
 bid for the same ; but the plaintill' beeame the 
 purchaser, and took a eonviyance from \V. on 
 4th February, 1S81. Most of the purchase money 
 went to U. as assignee, for the claims against 
 his estate. 11. and his wife bad remained in un- 
 disturbed possession since his discharge in insol- 
 vency : — Held, reversing the decision of Osier, 
 J., that upon the evidence, Set out in the report 
 of the case, the possession of 11. and liis wife 
 must be considered to have been the possession 
 of II. ; tliat the title of the lirst mortgagee was 
 not extinguished, and that defendants w ere estop- 
 ped by their conduct from disputing the plain- 
 tiff's title. Milkr V. Iluiitlin d lu; 2 O. ii., (.). 
 B. D. 103. 
 
 The ejjuity of redemi)tion is an entire whole, 
 and so long as the right of redemption exists in 
 any portion of the estate, or in any of the per- 
 80US entitled to it, it enures for the lieneht of 
 all, and the mortgagee nnist submit to redenii>- 
 tion as to the wlxde mortgage. Hence, in a re- 
 demption suit, where the mortgagor died intes- 
 tate in 1858, leaving children, the plaiutitls 
 therein, some of whom, if alone, woidd have been 
 barred as to redemption by II. !S. O. c. 108, ss, 
 19, 20 : — Held, since some of the children had 
 not been adult for live years preceding the tiling 
 of the bill, none of the plaintiil's were barred by 
 the statute. 1{. S. O, c. 108, 8. 43 applies to 
 mortgage cnsfs as well as other eases. Hall r. 
 Caldwell, 8 U. ('. L. J. 03 followed. Forster r, 
 Patterson, L. li. 17 t'h. 1). 132, and Kinsman v. 
 Rouse, L. K. 17 Ch. D. 104 not followed. 
 Fatild^v. Harper, Hal, 2 O. 1!., Chy. D. 405. 
 Reversed on appej»l. 8ee 20 V. L. J. 145. 
 
 See J/uvker v. JUorrmm, 28 C 'hy. 3(!ll, p. 433; 
 Slater v. J/o,«/jow, 2'J Chy. 392, p. 430 ; JJiller 
 V. Brotcii, 3 O. R. 210, p. 434. 
 
 8. PotscMion an ayatnul EqitUattle Tinaut. 
 
 Held, (afhrming the judgment of Spragge, C. , 
 28 Chy. 221,) upon the facts there stated, that 
 the tenant of an etjuitable tenant for life, in set- 
 ting up the iStatute of Liniit.ttion8 against the 
 
 cfjuitable remainderman, could not be allowed to 
 compute the time during which he had been in 
 possession prior to the death of the tenant for 
 life. I'er Burton, J. A. — The owner of an eijuit- 
 able estate cannot, notwithstanding the Judica- 
 ture Act, proceed against atresjiasser in his own 
 name. He is still bound to sue in the name of 
 the trustee. The jirovisions of the Statute of 
 Limitations as regauls ccjuitable estates consider- 
 ed. I'er I'atterson, J. A.^Under the ciicuui- 
 staliees appearing in this case the plaintill was 
 entitled to lecover in respect of the eiiiiitable 
 estate. Aitamnuii v. AiIuikhoii, 7 A. R. 5'J2. 
 
 9. iSerraiit or Cantuker. 
 
 15. entered into jiossession of a small portion of 
 a lot of land which he had fenced and cultivated, 
 the lot being in a state of nature, and upon the 
 agent of the owner discovering B. to be so in 
 ]possession suliered 15. to remain there, he agree- 
 ing to look lifter the property in order to protect 
 the timber ; and B. subseiiueiitly assumed to sell 
 the whole to one J., his grandson. On a bill 
 filed by the owner, the court (.Spragge, t'.,) held 
 that under the eil'cunistaiiees the .Statute of 
 Limitations did not run in favour of B. so as to 
 give him a title by possession, and that J. was 
 not entitled to the beiielit of the defence of 
 " purciiase for value without notice, ' he having 
 omitted to allege that B. was seized : that J. be- 
 lieved he was seized ; tiiat 15. was in possession, 
 and that the consideration for the transfer by 15. 
 to himself had liecii paid. .Subsequently, and in 
 1878, the plaintiil's agent ag.iin visited the pro- 
 perty, an<l obtained 15. 's signature to u nu'Uio- 
 randuui agreeing to hold possession and look 
 after the property for the plaifitill : — Held, a 
 sullicient recognition of the title of the plaintiff, 
 and that the defendants eould not put him to 
 proof thereof. CirceiiK/tiihl.i v. Urailjunl, 28 Chy. 
 290. 
 
 The plaintiff's father, wlio lived in the town- 
 ship of T., ownud a block of 400 acres of land, 
 consisting respectively of lots 1 in the 13th ami 
 14th concessions of the township of \V. The 
 father had allowed the plaintiff to occupy 100 
 acres of the 400 acres, and ,;e was to look after 
 the whole and to pay the taxes upon them, to 
 take what timber he retjuirjd for his own use, 
 or to help him to ])ay tlie ta.xes, but not to give 
 any timber to any one else, or allow any one 
 else to take it. He settletl in 1849 upon the 
 south half of lot 1 in the 13th concession. Hav- 
 ing got a deed for the same in Movember, 18()4, 
 he sold these 100 acres to one M. K. In December 
 following he moved to the north half of this lot 
 No. 1, and he remained there ever since. The 
 father died in January, 1877, devising the north 
 half of the north hall, the land in dispute, to the 
 defendant, and the .south half of the north half 
 to the plaintiff. The defendant, claiming the 
 north 50 acres of the lot by the father's will, en- 
 tered upon it,, whereupon the plaintiff brought 
 trespass, claiming title theieto by possession. 
 The learned judge at the trial found that the 
 plaintiff' entered into possession and so continued, 
 merely as his father's caretaker and agent, and 
 he entered a verdict for the defendant. T'here 
 was evidence that within the last seven years, 
 before the trial, the defendant as agent for the 
 father was sent up to remove plaiutitt off the 
 
429 
 
 LIMITATION OF ACTIONS AND SUITS. 
 
 430 
 
 land, because he hail allowed tiinher to ho taken 
 off the land, and that vlaintiff undertouk to cut 
 no more and to pay the taxeti and to give up pos- 
 session whenever required to do so by his fathui' : 
 — Hehl, reversing the judgment of the Court ol 
 Appeal for Ontario, (4 A. 1{. 503,) which hud re- 
 versetl that of the Court of Common I'leas ("J!) C. 
 P. 449, ) that the evidence established the orea- 
 
 X, • *xli'f / i/Htiv uuvi \j * ivtvii^'^ vo(>(*(/4io libit ifiiv i^ivit 
 
 tion of a new tenancy at will within ten years. 
 Per (I Wynne, J. That there was also abundant 
 evidence from which the judge at the trial might 
 fairly conclude as he did, that the relationship of 
 servant, agent, or caretaker, in virtue of which 
 the rcsjiondent lirst actiuirud the possession, con- 
 tinued throughout. It!i/an v. llyan, 5 S.C.K. 387. 
 
 10. PiiH^xKiun liij or AiiaiiiDt Infants. 
 
 Where a person enters upon the lands of in- 
 fants, not being a father or guardian, or stan<l- 
 ing in any fiduciary relation to the owner, and 
 remains in possession for tlie statutable period, 
 the rigiits of the infants will be barred, (^uin- 
 tou v. Fritli, Ir. 11. '2 Ivj. 415, considered and 
 not followed. In re Taylor, 28 Chy. 040, rever- 
 sing .S'. 'J., 8 P. It. 207. 
 
 Trustees, under a will executed by a woman 
 who afterwards married, received on behalf of 
 an infant devisee tlie rent of certain lands from 
 the tenant. When the infant came of age the 
 tenant paid the rent to her. Sulisccpicntly an<l 
 after more than ten years had expired, since the 
 trustees tirst received the rent, the heir-at-law 
 of the testati'ix claimed the land, on thegroumls 
 that till will was revoked by the subsequent in- 
 ter-ma. iiage of tlie testatrix and that the .Statute 
 of Limitations did not run for or against an in- 
 fant ; — Held (witiiout deciding as to the revoca- 
 tion of the will), that the possession of the trus- 
 tees was the possession of the infant, and she thus 
 acquireil a good statutory title to the land. He 
 Gog, 8 P. I{. <.»2. — Stephens, y^>yw. — I'roudfoot. 
 
 See nuijhe.1 v. Iluijhi'i H al, A.U. 37.% p.4:j(i. 
 
 of the devised lands, to retain one-third of the 
 rents in respect of j a<t and future dower; but 
 that, as to tlie dcscmdcd lands, the remedy was 
 biirreil by the Statute of Limitations; that the 
 cbiini made by the widow in her answer, and 
 awarded her by the ilecrce, was a pursuing the 
 remedy so as to l)ring the case witliin the sta- 
 tute, altlioiigh as to tlie rents of these lands re- 
 ceived, the widow was entitled to set oil' against 
 the claim matle by the plaintiH', the amount 
 which she was entitled to have receiviil thereout 
 as dowress. (Proudfoot, V.C., dis.seiiting, who 
 considered the widow entitled to the same relief 
 in re.-tpect of these as of the landf. devised.) 
 Ldidluw V. Jachcx, 27 Chy. 101. 
 
 C. ]{. died intestate in 1SI!4, seizeil in fee sim- 
 ple of the land in (piestion, leaving his widow 
 and several heirs-at-law. The widow remained 
 in i)ossession from tiie time of his death until her 
 own decease in 1881, and cultivated the farm. 
 There was some evidence of her declarations that 
 shi! kept possession with the consent ol the heirs 
 for them, claiming only her dower, but no evi- 
 dence of -x written acknowledgment of their title. 
 She devisc<l the land to the plaintiff: — Held, that 
 the possession of tlie wiilow was not a possession 
 (pia dowress even of one-tliird of the laud, and 
 that the title of the heirs-at-hnv to the whole had 
 been thereljy barred. Jaliwlon v. Olicfr et al., 
 3 0. U., Q. B. D. 20. 
 
 11. A dverse Possension. 
 
 The testator by his will, executed in 1840, gave 
 the annual income of all his real estate to his 
 wife, for the support of herself and children dur- 
 ing w idowhood ; and after her death oi' mariiage, 
 and tile youngest child attaining' majority, the 
 property w-is to be divided. He api.ointeil his 
 widow ami eldest sou executrix and executor, 
 both of whom continued to reside, with the other 
 members of the family, in the homestead, and 
 she, with the consent of her son, received the 
 rents of the realty, which she applied in th ; sup- 
 port of the children for more than twenty years 
 after the death of the testator, without having 
 had dower .assigned to her, or having made any 
 demand therefor. Some of the lands had lieen 
 act^uired by the testator after the execution of 
 the will, and .as to them there was an intestacy. 
 A hill having been tiled by one of the heirs, seek- 
 ing an account of rents received by the widow, 
 and a ])artition of descended lauds: — Held, on 
 rehearing (in this atHrniuig the order of Proud- 
 foot, V. C. 25 Chy. 203) that the widow was not 
 bound to elect between the provision made for 
 her by the will and her dower, and that notwith- 
 standing the lapse of time she was entitled, out 
 
 I 12. Ejxhtsive PuS'><'s--iiov, 
 
 In IS.')! the defendant's father bought for de- 
 fendant the land in cpiestion, and in pursuance 
 of his instructions, to prevent the defeii<lant dis- 
 jiosiiig of the hind, the deed, which was regi i- 
 teied, was made to defendant's son \\'., then 
 about twelve years old. The defendant and his 
 I family tlicreiipon took possession, and lived there 
 i up to the present time, the defendant being 
 I assessed and paying the taxes. The family resi- 
 , deuce, with the garden and orchard, which was 
 , fenced otf from the rest ot the land, and com- 
 j priseil from two to four .leres, was always deemed 
 j to be the defendant's special property, and he 
 ' had always exclusive possession tlieieof, with 
 tlie consent of the others. W. resided with his 
 father for several years, anil tlieii went to the 
 United .States, but returned in lS()'.t, when he 
 conveyed by deed in fee simple, which was regis- 
 tered, to one 11., his step-brother, who had full 
 knowledge of all the facts and circumstanees, and 
 who had been working the land on sli^iies with 
 the defendant and another. Defend, int com- 
 plained to him of the sale, and denied \V. 'a right 
 to sell, whereupon it w.as arranged that things 
 were to go on as before, and defendant was to 
 have his share. H., in 1870, and again in 1874, 
 without the defendant's knowledge, mortgaged 
 the land, i)y mortgages duly registered, to the 
 plaintiff's, who had no notice or knowledge of any 
 , of the circumstances, or of the defendant's 
 possession. In Pebruary, 1881, ejectment was 
 brought by the plaintiff's: — Held, that the plain- 
 ', tiff's, being purchasers for value without notice, 
 claiming under the registered paper title, were 
 under H. S. U. c. Ill, 8. 81, entitled to recover, 
 except as to the house ami plot, to which the de- 
 fendant by his exclusive possession had acijuiied 
 u title under the Statute of Limitations. The. 
 Canaila Pcrniantiit Loan and ."iacinifii Company 
 V. M(Kay, 32 C. P. 51. 
 
431 
 
 LIMITATION OF ACTIONS AND SUITS. 
 
 432 
 
 
 r 
 
 K 
 
 a. 
 
 ]3. ActiKil mill Co/I'd I iictirp, PiiK<iM.tii)H. 
 
 In cjectnient it niipeared tliat tlie lot in ques- 
 tion had Ih'imi niMiitcil in 1812, with otlK^rlotH, 
 to M. A. 1'., M., .and P. In order to iinivc tlic 
 ftllugtid conveyance of tlic \'M\ Keliniary, I8I(!, 
 Ijy M. ('. to \V., wliieli had lieen lost, tiie i)lain- 
 tiir jiut in a iiieiiiorial thereof, re^^istcreil 19th 
 I)efiendier, I.S'.Ni, sif,'ned hy tlie j,'rantef', in- 
 oludiii)^' an nndivideil moiety in all the 'and in 
 the patent witii otiuir lands, itw"- ...ewn also 
 that W., in 1S'_'7. had iiiortgaj,'eil all the lands in 
 this memorial with other lands, to a li.mk, whicli, 
 in I821t, recoiivey(!d them to the trnntees under 
 W.'s will, that in IS,'i;{ K. took aeonveyaiiee from 
 the devisc'e of W, of three of the lots mentioned 
 in the iiKimorial, not ineiuding the lot in ipiestiou ; 
 and that in I.S.'U, ]iroeeedingH were td<eu in par- 
 tition on the iirtition of thedevis(^e of \V., under 
 which this lot was as'iigned to W. Possession 
 li.i'l Ir'en held of this lot, not in aceovdaneo with 
 the allege. 1 ''>st deed, hut by |)ersons claiming 
 under K. ; l)ut the court held that the evidenee 
 failed to ]irove such possession for forty years, or 
 that it was taken with the knowledge cf W. or 
 liis devisee. The i)l.iiutilT claimed inidcr a deed 
 from such devisee executed in 1873 :--Hcld, 
 Camortui, J., dissenting, 1. That there was suf- 
 ficient proof of tliu lost deed from M. C "J. 
 That the ])laiiitifrs claiming under W. were jiro- 
 tected under I'. .S. II. C. c. 88, s. .'{, ;is against 
 the possession of I!., his co-tenant, for less than 
 forty years. Van VclHurct nl. v. /fii'ihudii, 4')Q. 
 B. 252. Affirmed, see 20 C. L. .f. 11. 
 
 Thirty or forty years hefore action a Ma/ed 
 lino had been run lietween the lots of plaintifl' 
 and defendant by .S., a surveyor, along ))art of 
 which a fence had been erectecl. The parties re- 
 spectively cut timber and exercised acts of owner- 
 ship on the lands on eaeii side of ami up to the 
 blazed line. The plaiutilF sw(U'e that although 
 he and his father had been governed by this line 
 and never claimed or went beyond it, it was 
 always their intention to dispute it when they 
 should l)e able to establish the true line. The 
 learne<l judge at the trial found that tliere was 
 sufficient eviilence of defendant's occupation of 
 the land up to tiie bla/ed line to extinguish the 
 plaintiffs title: — Held, Anr.our, .1., dissenting, 
 that the verdict w;is right. Steers v. S/iiiiv it id , 
 1 0. H,, (I B. D. 2G. 
 
 Title by possession to wild land can be m.ade 
 out otherwise than by actual enclosure. Ih. 
 
 The ju<lgment of the court of common pleas 
 (.•?0C. I'. 481) affirmed as regards the right of 
 the defendant under the statute of limitations to 
 that portion of the laml of which actual jiosses- 
 sion li ul been shewn fiu- forty years ; but varieil 
 by entering judgment for the plaiutilf for the 
 rest of the laml sued for. 'I'he doctrine of con- 
 structive possession h.as no application in the 
 case of a mere trespasser having no cidour of 
 title, and he acijuirea title under the statute of 
 limitations only to such land as he has had actual 
 and visible possession of, by fencing or cnltiv.at- 
 ing, for the recpiLsite period. (Camenm, .J., dis- 
 senting.) Harris v. Mudie, 7 A. 11. 414. 
 
 14. Mistaken Boundarii's. 
 
 The plaintiff owned the east three-cpiartcrs and 
 the defendant the west quarter of lot 25, in the 
 
 1 1th concession of I'iUphrJisia. Sixteen years be- 
 fore suit, lj., a surveyor, was eniidoyed by both 
 lilaintitl'and dtifendant to ascerfain the true di- 
 vision line between their lauds. The parties 
 cleared U]> to the lino run by \: on each side of 
 it, and a fence was gradually built along the lino 
 as the clearing proceedtid, but did not extend 
 through the lot, and had not all existed for more 
 thin ten years. The plaintifl' had notitied de- 
 fendant tliat, if any of his tindicr fell into the 
 lilaintiff'a clearing, the defeiulant must remove 
 it. Two years before suit another survey was 
 made, at the plaintiff's instance, throwing the 
 division lino two chains ten links farther west 
 than li.'s line. On this line the plaintil! erected 
 a ience which the <lefenilant took down, and the 
 jilaintiff brought trespass : — Meld, Armour, .1., 
 dissenting, that there was ample evidcMce of the 
 defendant's ])ossession of the land bounded by 
 the line run by L., so as to (Mititle him to claim 
 according to that line ]»roduced from front to 
 reir of the lot, and a venlict in his favour was 
 upheld :— Per Armour, -f., adjoining proprietors 
 cainiot be bound by a line run between them, 
 which is not the true lim^ exiH'])t by such a con- 
 tract as a ecmrt of equity would decree speeitie 
 performance of: hero there was no evidence of 
 any contract or intention to abide by L.'s line, 
 whether it was a true line or not ; and in such a 
 case the statute will give a title only to such 
 land as has been substantially enclosed for the 
 whole of the statutory period. Per Hagarty, C. 
 •J., that apart from the statute, the evidence did 
 not shew with sufficient clearness, as a matter of 
 survey, that defendant luul trcsp isscd on his land. 
 Shi'iilin-ihon v. AfrCiillinnjli, 4() (,>. 15., 573. 
 
 See Steers v. Shaw rt nl., 1 (). It. 2(!, p. 4.31. 
 
 1.5. Eiitrij or Cluiiii. 
 
 Whore the true owner of land in exorcise of 
 his right enters upon any pr),tion of the land 
 which is not in the actual posse-ision of another 
 the entry is deemed to refer to the whole lands. 
 T/ie dreat Western /,'. \V. Co. v. Liitz, .-12 C. P. 
 KUi. 
 
 See Dounran v. Herbert, 4 (). IJ. ().35, p. 422. 
 
 1(). Discoutiniianvi'. 
 
 On 8th April, 1854, the pl.iiutiff .acquired by 
 conveyance the fee simple of a vacant piece of 
 land, but did not enter. Shortly after ;i railway 
 company surveyed and staked out a portion of it, 
 with other Land rerpiircd for their railway, .and 
 the sum bo be p.aid by them to the plaintiff w.os 
 settled by .arbitration under the statute, but the 
 company never paid or took jiossession. On SIst 
 December. 1857, the plaintiff recovered judgment 
 .against the r.ailway company, and under |)rocecd- 
 ings in Chancery sold their inten«t in the laud to 
 the defendant P., who did mtt take .actual pos- 
 session, though he went ujion the land prior to 
 I8(i0, and examined the clay to see whether it 
 was lit for brick making He did not fence or 
 cultivate it, tlnuigh it w.as fenced (m two sides 
 by the adjoining proi)rietors. He also put up a 
 bo.ard on it with an atlvertisement that the lot 
 was for sale, signed by him, but when was not 
 shewn, ,an<lit was knocked down and not replaced. 
 In 187() P. s(dd the land to the defendant com- 
 pany, who immediately went into posBession 
 
4,'^3 
 
 LIMITATION OF ACTIONS AND SUITS. 
 
 43t 
 
 and ni.'iilo v,ilu;ililc iiuin'iivciiu'iits. Tliu iviiUvMy 
 compiiiv ainl tlu' il(!tuiiiliiiits ]),iicl thu taxes fniiii 
 IS'i.'v H'^M, (( 'a'licnui, J., ilis-tciitiiiL,'), that 
 lipitlii^r till! riilw.iy cniiipaiiy ivn- I*, liul sikjU a 
 pn^ixcHsion (if the land as exfiimnishiid the tith' 
 of the |il liiitill', wliii was tlienifdn; ciititlcil tii 
 receiver the 1 Hid. rcr ( 'amordii, .1. — Thiiro liad 
 broil a disi!oiitiiiii:iii(:u liv tlio iilaiiitilF, .and sulH- 
 cioiit cvidciici' (if an .advcrsd claim to dcfcvit the 
 ]il;iintilJ"H title. IVollon v. '/'Iif W'liixlsliick (J'l^ 
 
 Co., Hill, I (). n., Q. iJ. I). 030. 
 
 Sec dnffilh rt <il v. nrn,rn,Ti A. 1!. iJO.?, .\^ \2X 
 
 17. Ai'kiiindi'ihiiiH'nl of Tillf. 
 
 TliL' fathci- (if th(! (h^fciidant was in wrnn,i,'ful 
 ]iiss('isi(in (if liiid friini IS14 to ISIVJ, when I'. 
 the ou'iicp nuiiM.'4ii;eil to .V., wild ;is-(ii;ii'Ml to tho 
 jilaintiir, and iiit('i'(-(t was roi^'iilarlv [i lid th'Ti-oii 
 liy til ' iniirt'^i:^'!!- nnfil two y •:i!m li •Uivc the in- 
 stitiiHdn df this suit. In IS,i.') tlu; diifiMidaiit 
 wnite td I', ('(iiu'crnini,' a pureh as,', of sumo tim- 
 lier (in tlie I uids, and I'.'s a(;ent went dV(!r and 
 lliel^nred the tiinlier cut, whieli win sold to the 
 dcfi'ii laiit ; and in ISdfi P. sdid tiiiiher on tho 
 land to striiti^'evs • -H'dil, (I) that sn('li entries 
 iipiin t\n'. land, which were suHVrnMit to eonstitnte 
 tivsjiiss if mil i-.vfnl, interrii|it('d the ninnin^ of 
 till' st.itnt' in favonr of tin; (lefendant, who was 
 tenant at will ; and th it the written a]i|ilieati(iii 
 of the (hfiMid int to P. was a snlliei'Mit acknow- 
 li'd'.'inont (if title to pivvent the riinnin;; of the 
 statute as ai^'iinst P., and (2) that the possession 
 of the (hfeii'lant liefore the ereation of the niort- 
 ga!,'e whieli w is insnlli aent at that time td I) ir 
 the inortL,'a;,'dr, did not run aiiainst the [ilaintitF. 
 JfuoLrr V. .nnrnson, •2,S f'hy. 'Mtd. 
 
 An !ickndwli'd£;ni('iit of title hy .a p.irsoii in 
 possession of I iiid, ){iven to ,i mdrtf^aiior, is siitti- 
 cient to prevent the o v'up.mt .uvpiiriiii; title un- 
 d(a' the statute, so as to bar the rii;hts of tliu 
 persons entilh'd. For this purjiose it is not ne- 
 cessary that the mort',M<;dr should he aetin;.,' as 
 aj,'eiit of the in(ii-tL;.ii;ee ; the mort'^af^or for such 
 purpose is a person entitled under thostatutc. //>_ 
 
 A., in 1,S."{."), went into possossioii of land upon 
 the invitation of P., wlio pruniiseil t ) nivi! him a 
 dued, lint snlHeipientlv refus'(d to do so. A. 
 thiirenpon determined to remain npon, and suc- 
 < ceded in ni.'ikint; ,i livintf from the land. P. 
 (lied three ye lis afterwards, h ivini^ davised tho 
 land to ,\. and his wife for their joint lives, with 
 rcuai'ider to .1., one of the contestants. A. oe- 
 euiie.l the land until IS77, when h'j executed a 
 C'l iveyanue thereof in fee to the ])otitioner : — 
 Held, (in appeal, .allii'inint; the deoisiou of the 
 refurei! of titles allowing' tho claim of the con- 
 testant-, that A. hy his entry had hocunio tenant 
 .It sulVeranci! to 1'., and that as A. w.as aware of 
 the devise to himself, and never did any act 
 showin;^ a determination not to t.'vke tho estate 
 80 given to him, the estate for life had vested in 
 hiui, .and that ho or his i;rantoe could not claim 
 th i fee by virtue of \. 's possession. .Some thirty 
 years .after .\.'s entry he urautod part of tho land 
 to one B. . and .F. joined in tho conveyance : — 
 Hold, a sulBeient admission of tho title of J. as 
 a reuriindemian, and so .in .admission that tho 
 will was operative on tho land ; J. having no 
 claim to the laiicl othurwiso than under the will. 
 lit Danhani, 'I'd Uhy. 2.")S. 
 
 28 
 
 Where a morttiaiioo in iimsession wroto, in 
 IfiTI, to the holder of the tv|nitv of relemption 
 as follows : "The amount 'lue me in Xov<vnb('r, 
 IS.")3, on your mort(^'ai,'i^s w IS as f(dl(nvs," (stat- 
 ini,' tho amounts.^ " Xo pirt of tli at sum \w^ 
 since been paid to uk;. but tho rents \ have ro- 
 ceivod hive nnavly ko)it down the interest" : — 
 Held, a siitrieicnt aekiiowled'_'m(<iit of title to trive 
 a now starting' noint to the statute froin tho dato 
 oftholcttor. Milli'i-v. /J;v)m»,.T(). R.,(;hv.n.'3IO. 
 
 Sec areeii.th'ifldny. Ilrii'iriinl,2HChy. 20!), p. 'ISS. 
 
 18. O/lin- Cms. 
 
 The widow and heir joined in creatinf; a term 
 in the deseended l.iiids for ti'ii years ,ind in tho 
 lease it wis stated that it had bi^en mntu illy 
 a.,'reod betW(Hni the pirlies ther.ito that ouo- 
 third of the rent should bo paid to the widow 
 in each year whi(!h wis aecordinudy doui! during 
 tho currency of the torin : —Held tha^. this hail 
 the olFeet of preventiu!,' the lapse of tinu bi!iiii» 
 Ht'.k up as a bir und'tr the stituto to the widow's 
 right of (lower. Fni-'cr v. (laiin, 27 Chy. (H. 
 
 .•Mthou'^h aeeordiu'^ to tho ruliu',' in .\damson 
 )'. Adamson, 2.5 < 'hy. .ViO, a pl'iiutilF will not bo 
 allowed to amoivl so as to set u)t a title ac(]uire(l 
 ■iftin' tho filing of the bill, yet where by error in 
 the conveyaneo the west instead of thn oast h.alf 
 of the lot was oo'iv(!V"d, it wouM aeotn (per 
 Pro'idfodt, V.(!.,) that it would n >t b,; any in- 
 friugo'nent of that rule to allow an am'vidmonfc 
 sottiivg u|) th'! fa<;b that since th i liling of the 
 bill thi! error hid b-eu correct ;1 by a now con- 
 voyanoe, and making tho ivicessiry imendments 
 in the bill in accord ineo therewith. Hut tho bill 
 having \y^.vn amcmded in one pirt of it in this re- 
 spect, leaving the lu'rouoous (li!si'ri|ition of the 
 liii'l in th) liarlior ])irt of it, the (Joiirt on re- 
 hearing h'dd that tho suit had not b umi instituted 
 with regird to the east half so is to prevent the 
 defence of the .Stitiite of fiimitations biing set 
 up, and atlirinid the(l(!cri!o of Ml ike, V. 0., 25 
 Ohy. r).')2. Diiiii'th- v. Lirinh, 27 <'hy. 187. 
 
 Sometime before 18(!;j tho defendant M. at the 
 solicitation of his father and in)thor went into 
 ]i is-iession of ;{;)0 acros of land, 10)aerijsof which 
 were t!io ostit'j of tho mother, and cultivated 
 the simo ivlying on tlu (ir.miisj an I agrcjinout 
 of Ins pire'its to give him a cDuv.^yau ro. In 
 IS'K) tho mother died without hiviii,' oxocutel 
 any dee 1 of her 100 .acres, and iuOct ilier of that 
 year tlio father, in the bislief th it ho was heir to 
 his wife, excjuted a convey iiico to M. of tho 
 wliole .^O;) acros, and which M. execiitid .a'j 
 gr.antee. The father die I in 187.'?. and .\I. con- 
 tiiniod to riMide on tho property with the know- 
 ledge of his aevor.il brothers and sisters until 
 1877, wli ,'U, owing to an objection r,iisjl by a 
 r.iilw ly odni|iany who desired to obtain .a dcjil of 
 a portion of tho 100 acres, it was discovered th.it 
 the doe. I of I SlilJh.ad not efrcctuvlly convoyed tint 
 portion belonging to tho mother, .anil thoroupan 
 tho (Icfeiil uit obt lined a (lojilof(iuit cliiinfroin 
 tho sovor.il heirs. In 1873 a bill w is lilo I by tho 
 hoi^,^ imp) idling this deel as having bjjn ob- 
 tained by fr.iud, and tho Court boi ig sitislied 
 that tlu Sim J had been obtiinu.l irai)r,>pjrly set 
 it aside witli costs ; but ordoro I M. to I)j .iHowj.I 
 for his i,iipr.)vein)nts, as having bjju mile uiuljr 
 a bona ti.l'j mistake of title, ho acaouutiiig for 
 rjntd and prolits since tlu death of tho fathor ; 
 
4;J5 
 
 J.IMITATION OF ACTIONS AND J^UITS. 
 
 •I.". (5 
 
 
 
 and :— llclil, tliut iiiiiltr tlii^ cirL'iiiiiHt.'irccH M. 
 could not iiviiil lliIll^'^ll or tlii' Statiituol Liihitii- 
 tioiiN, UN lip til tliu (k'litli ol liiM futlii'i' ill l>S7>{. 
 lu' WiiH ri^litliilly in |i<<hn( c^idii under the deed 
 friilii tliu lallii r \\ liicli t>ti>|>ii(jil tile riiiiniii^' of tlie 
 statute against the heiiH of the iiiother and 
 whi> h, tlicii^h void u» a deed in lee, wax elleetiial 
 toeiiiivey thi' lathei'M iliteieKt aH tenant li\ the 
 cuit»(-j. Midriijtii- V. J/( (•';(;/(//•, i;7 C'hy. 470. 
 
 'J he deleiidaiit, in eensidi lalion thai liin lather 
 Wduld eimvey to him eeitain lands in the toun- 
 dhiiiol ( aledoii, iiiideitook and agreed toeoiivey 
 to the ]ilaiiilill, a yuiiiigir lndther, KiU aereH ol' 
 luiid in tint t(i\Mi!<lii|i ol Aitt iiie.sia, 'Hie lather 
 coiiveyid the land to the del> ndaiit, hill iiiHtead 
 ul his eonviyinj^ to the liiotheraM he had agreed, 
 he (-old the jiio|'eity mole than twelve yearn he- 
 fore hill lihd, the ]ilaiiitill lieiiig then at least 
 twenty -one yeais ot ajje :- Held, that under 
 tbeBe eili iimstalieeM the deleiidaiil v ;i.« im ii ly ji 
 cuiistiiietive trustee, and that the iilaiiilitl's 
 right to eall lor a eoiiveyanee was haired hy the 
 Statute of Liinilations; hut the defendant having 
 denied the agieeliieiil to conviy, which, how- 
 cvti', was elearly tstalilished liy liis own evi- 
 dence, the Coiirl (l.hike, \'.l'.,) on dit-niissiiig 
 the hill, lefused to give defendant his costs. 
 IVrqUKuit V. Ft rijvuuii, \iii C'hy. SSO. 
 
 The plaintiir heing the ow ner of a tract of land 
 near I'leseott, on the iMUh of Oetolier, 1S-1!>, 
 agitid villi the toiitiaelors engaged in the lay- 
 ing out of Ihe railway ol Ihe dett iidaiits, and in 
 ac«iuiring h. nils and rights ot way for the eon- 
 btiuelion thiiii/f, in eont-ideiation of their plac- 
 ing the station of the railway lor I'lestotl iiiion 
 his land, to convey to the contraetois, their heirs, 
 &c., six acies of such land for that jiurpo! e, and, 
 if necessary, for Ihe puijioses of such station, to 
 allow them to take an additional ijuantity, not 
 exceeding in all ten acres, 'i'he station was erect- 
 ed in l.srir) on these lands, and used liy the 
 coiiiiiaiij until 18()-l, when it was closed, and a 
 Btation erected ahout one-and a-half miles from 
 the iilaintill s lands, and station Imihlings erect- 
 ed thereon, in c<insi(|ueiicc of which the iilain- 
 till 'a remaining lands liecanie tieiireciated in 
 value : — Held, that the delendants having en- 
 tered liiioii and retained iiossession of tlu^ lands, 
 8o agreed to he conveyed, lor more than twenty i 
 years hefore the tiling of the prest'iit hill, (M7()) i 
 atl'orded no defence under the Statute ot Limita- 
 tions, as up to a jieriod much within the twenty ' 
 years their possession could not he (|uestioiie(l, 
 and no right of suit had accruetl to the ]ilaintiti' 
 until the use of the lands for the i.iiriiottH of the 
 station was discontimied in lti(i4. Jinnti]) v. < 
 Uruiid Trunk li. If. Co., 'J8 Chy. 583. He-, 
 verted on appeal, 7 A. 1{. I'iS. 
 
 Hugh O'Uare purchased the land in question, ! 
 and took a deed dated IHOtli April, 1870. His 
 biother James, the defendant, paid a sniull por- 
 tion of the money, and inimediutely went into , 
 possession. Hugh occasionally visited the place. , 
 On the 30th Koveuiber, 1874, Hugh mortgaged 
 to the plaiutiti', who issued his writ on the L'Otli ; 
 Februaiy, 1881. Jiefendant claimed title hy 
 possession ; — Held, that in any event the statute 
 would not commence to run in defendant's fa- 
 vour until a year from his entry, and that he 
 therefore hatl ueijuired no title. Grunl \. O'Uare, 
 46 Q. B. 277. I 
 
 t A pidinissoiy note made liy the |iiirihaMr, and 
 endorsed hy his son, was givt n as security for the 
 payiiunt ol land sold to thedclcinlaiit, mi which 
 
 j note a payment had heeii made hy the t iidinsci' ; 
 ~ Held, that siudi paymc nt was |iiiipci ly a|i|i|i- 
 calile to reduce the aliiolilit reliiaiiilng due iipmi 
 the ]iiircliase nioiiey, and was ^ulllell■lll to pre- 
 vent the running ol the statute. Ulah r v. Muk- 
 
 liirort', '.".IChy. ;('.t2. 
 
 I The plaintilV tiled'his hill against his two hro- 
 ' thers seeking ailiiiinistratioii of his father's is- 
 ' late, of which he alliged tin y had possessed 
 i themselves on his death in ISis, It appeared 
 that the plaintill attained his niajniity in l<S.')7, 
 and it was not proved that any fraud or coiuchI- 
 meiit had lieeii practised ii]miii him : Held, that 
 ♦ he iilaintiir was liaried liy the Statute of Limi- 
 tations, and hy the releases execiitid hy him. 
 Iliiijlii.-i V. II iiijhi .1 1 1 III., (i .A, K, .■>7.'(. 
 
 A lestatol devised land siilijcel to a lease, to 
 •i. II. in fee, and as to the rent din i led half to 
 he paid to J. 11,, and half to the exiciilor iu 
 trust for .1. H. The executor, assuniiiig the de- 
 i vise to he Valid, paid all the rent to .). II. Tlic 
 latter executed a deed of the land to ( '. 11., to 
 whom he afterwards paid the reiil w ilh lin^ [iriv- 
 ity of the executor, as soon as he icceiMil it lioin 
 I him. ('. il. went into possession <il ilu^ land 
 ; alter the expiration of the lease, and had hceii ,so 
 receiving rent or in possession lor more than ten 
 years helore action comnieiiccd. .1. II. was a 
 willliss to the will : — Held, allillniii;^ the decision 
 of ridlidloot, J., that thcde\isc(.| rent was void 
 under "Jo (ieo. JL c. (i, s. 1. as ,1. li, was the 
 helielieial devisee of the whole of il. Ileiit is- 
 suing out of land is a Iciuiik nt ; il p,ii takes of 
 the nature of land, and is within the ."itli si.ct.ion 
 of the Statute of frauds, and hence is also w itll- 
 iii2ri(ieo, II. c. (!, s. I. Held, further. (,ilso 
 alliiniing I'roiidfoot, J.,) that the ]ierccpti(iii of 
 . the rent hy the executor w,is linni tlic outset 
 , "wrongful " within U. S. (). e. 108. s. ,5, suli s. '), 
 and ( '. 11. had aeiiuired a t'ood title hv posse.-sioii. 
 Ilujikiii^w //njikiiiKf/ III', 3(). l;.. Chy. I». -J:"!. 
 
 The Statute of Limitations docs iml licgin to 
 run against a tax |iurcha.ser until the period of 
 redeliiplion has expired. Siiiilli v. l he Miilliuiil 
 li. W. Cv., 4 0. li., Lhy. 1). 41tl. 
 
 II. t'l.AIM TO IOasK.MK.NI.-*. 
 
 Held, Armour, .1., dissenting, that the On- 
 tario Act (H. S. O,, »;. 108,) reducing tlie jieriod 
 of limitation to ten years, docs not a|i[i|y to the 
 Intel ruption of an easement, such as ,i right to 
 a way iu alieiio solo, in this case a lane, which 
 the <1( feiidaiil had oc<iipied ami olistriictcd for 
 ten years, hut which the plaintilV h.ad iiscil prior 
 to such ohstructioii. Miikilw. /"I'l/lr, 45 IJ. I!. (i5. 
 
 Where a person has enjoyed an casement hy 
 having windows overlooking ihu laiiils of an ,'ul- 
 joining projirietor for any period, even one day, 
 over nineteen years, he cannot h ■ deprived there- 
 of unless he snhsequently siihiiiils to ,in inter- 
 ruption of such easement for a periiid of twelve 
 months. The propriety of such a rule in the 
 towns ol this province remarked upon and (jiies- 
 tioned. The civse <if Flight i\ Thomas, 1 1 A. & 
 K. 088; 8 CI, & V. 231, couinientcd on and fol- 
 lowed. Jiuni/iam v. O'arvt'i/, 27 Chy. 80. But 
 see 43 Viet. u. 14, s. 1. 
 
.1:1 (5 
 
 LIMITATION OK ACTIONS AND SUITS. 
 
 i;58 
 
 rlia.scr, mill 
 iint\ Inrtlie 
 
 it, nil Wllji'll 
 r iiiilcii.scr : 
 n ily Jilipli- 
 1)4 line ii|>ii|i 
 II lit. tn |ii<'- 
 (/( (■ V. Mim. 
 
 lis twii tiro- 
 f:itlici'« cB- 
 
 I pONMNSCtl 
 
 It .iiPiic.iii'd 
 ty ill I.SoT, 
 I 111' ('lUnual- 
 ll.lil, llmt 
 • lit' Liiiii- 
 l liy liiiii. 
 f. 
 
 il li .isr, to 
 till llillf to 
 I'xiciitdi' ill 
 
 mil;; till' llo- 
 
 .). II. Tlie 
 
 ('. II., to 
 itli tilt.' iiriv- 
 'iM il it Hum 
 111 iJK^ land 
 iiail lii'cii HO 
 lie than ten 
 
 I. II. \va» a 
 tin ikcisiiin 
 
 1 lit was Vdiil 
 il. wa.s the 
 t. Ilciit is- 
 
 |i.ll l,ai\(-S of 
 
 • ."itli fiiL-tion 
 is also w ith- 
 iirtlnr. (also 
 ii'i('i|iti(iii of 
 I tlic nutHut 
 ^. n, Mill .s. 5, 
 V ]i(issi'i-siiiii. 
 .'liy. I>. •-'•.':<. 
 
 lot hu^iii to 
 
 III! luTlilii llf 
 
 ■n,c Mi'lhiinl 
 
 liat tin; (lii- 
 yi till! iiiiiod 
 a|i[ily to tliu 
 H a I'iijlit to 
 
 laiio, which 
 istnietod for 
 id iim:i1 jirior 
 
 4-> i}. li. (15. 
 
 L'a.-ioliicnt hy 
 iil.s ol' an a(l- 
 •fii one day, 
 |irivud tliLTO- 
 to .III iiitiT- 
 id of twelve 
 rule in the 
 [111 and (|ue8- 
 lilbl, 1 1 A. & 
 
 on and fol- 
 ly. 80. But 
 
 The iilidiitift', tenant for years of the tlefendnnt | 
 S., Hiied for loMH of iiHe of a tenement in eoiiHo- | 
 (lueiiee of the fall of the wall thereof, which was 
 uaiiHed liy tlie excavation of the adjoining; hit for , 
 a cellar by the defendant II. who owned it. II. j 
 hnil excavated IiIh land in Hoine {ihices to within 
 a fi'W ini'hes of the dividing line, dose to which , 
 the hoiiHc in (|neHtion Htood, 'I'hiN Imiise had 
 been liiiilt liy S. in I8.'i4, when he had a lease of ] 
 the lot lor ten years, which gave him the right 
 to remove! it at th") exiiir.'itioii of the term, uiion 
 oak (ilankH laid about one foot under the ground. 
 In lH.'"ili, however, he aetiuired the fei, and in 
 187(*. he also became <iwnerof the lot now owned 
 by Jl., .'ind held it for a year, when hi! coiivcyeil 
 it to 10. il. from whom Jl. derived title. There j 
 was no evidence to whew that II. knew that the j 
 house was receiving more suinioit fnnii his land 
 than it would have reijuired if it had been coii- 
 structeil in the ordinary way : Held, thatowing 
 to the unity of sei/in of S., there had not been 
 twenty years continuous enjoyment of the ku|i- 
 iiort as an easement ; but that even if there had 
 been, no such ac(|uie8ceiici; in the use of the ser- 
 vient tenement had been uliewn as to justify the 
 iiresuniption that uii easement had been aciiuiied 
 by grant. Jiuck-iin v. Smilh tt id., 5 A. H. ^41. 
 
 HI. Pehsonai, AiTioN.s. 
 
 The ]ici'iod for bringing an action against a 
 clerk of a niunici])ality for omitting nanits from 
 the collector's roll is not limited to two years un- 
 der I!. .S. (). e. (11 B. 1. I 'iir Jill ration tij J'rtf-r- 
 boromjh v. L'lliniiitx, 31 C, 1'. :J3I. 
 
 Toailcelaration charging negligence in the con- 
 gtruction and inainteiianee of draiius, in order to 
 drain the streets of a town, whereby the drains 
 were choked and the sewage matter ovcrllowed 
 into [ilaintin "s |ireniiscs, deteiidants pleaded that 
 the cause of action ilid not accrue within three 
 months : — Held, bad, as sec. -Iltl of the Munici- 
 pal Act, li. !S. O., c. 174, iliil not apply. Sulli- 
 van V. 'J'/ie t'orj'oration oj' the J'liifii uf JJarric, 
 45 Q. B. 12. 
 
 In an action by the plaintifiF against the <le" 
 fendant as administrator of his ileceased brother 
 \V. (I. as to an amount ol 5^800 which the plain- 
 tiff alleged that \V. (J. received for her from an- 
 other brother S. (J. also deceased, the evidence 
 skewed that S. (!. at the time of his death di- 
 rected W. (!., to whom he left the rest of his 
 property, to pay the plaiutill'thc$8U0, and W. (j., 
 after ^^. (J.'s death iuformeil the plaintitf that he 
 was taking charge of the money for her : — Hchl, 
 that \V. (jl. was a trustee for the plaintilF under 
 an express trust, and therefore, that under the 
 0. J. Act, s. 17, sub-8. 2, the Statute of Limita- 
 tions would not constitute a bar to the claim. 
 Cookv. Grunt, 32 C. V. 511. 
 
 Where the estate of a deceased {lerson is in- 
 solvent, the provisions of the Act respecting 
 trustees displace any right on tiie part of the ex- 
 ecutor to retain iu full ; and as against an ex- 
 ecutor claiuiing as creditor, any other creditor 
 may set up the iStatute of Limitations. lie Hush, 
 29 Chy. 385. 
 
 The bill of exchange iu this action fell duo on 
 Ist December, 1875, and the writ issued on the 
 Ist December, 1881 : — Held (Cameron, J., dis- 
 aeuting) that the statute began to run on the 
 
 2nil December, 1875, and therefore that this ac 
 tion wascommenced in time, .Sinclair c. Kolisoii, 
 Iti i}. I!., 211, remarked upon. I'er .\iiiniui-, .J. 
 Thiitigh the holder of a bill may |>ut liini.'^elf in 
 a iiositiiin to coiiiniencc his action on the da,\ the 
 bill falls due by demanding and bcin;; refused 
 payment, be is not bound to do so; aiiil if hi' ihicH 
 not, the accciitor has the whole of the day of 
 maturity in which to ]iay the bill, and the st.Uute 
 does not coninieiicc to run until the d.iy alter, 
 (jtiiii'ic, w lietlier even in case of such denuind and 
 relusal, till! statute will begin to run cm that day. 
 I'er Canieron, .1. Inasmuch as by < '. S. I'. < '. e. 
 42, H. 1.5, the bill migiit have Itieii pnitestcd at 
 any time after three o'clock on the day it fell duo 
 it was then overdue, and the action wa.s eom- 
 nicnced too late: Held, also, that the plaintitl', 
 under the facts stated in the rei)oit, had estab- 
 lished his right to sue upon the bill. Ji'ili/nr v. 
 Mc(.'<r, 1 (). 1!., l^. B. I). 287. 
 
 Helil, reversing the judgment of the county 
 court that notwithstanding K. .S. (). c. I2."i h. 2(), 
 a married woman is .-ilill entitled under 21 .lac. 
 I. 0. I(i, to bring an action in i'cs|iectof her sepa- 
 rate pi'opcrty within six years after bcconiiiig 
 di.scovert. Vanull v. F'-jjintlil, 5 A. It. ;{22. 
 
 Where A., one of two residuary legatees and 
 executors, left the collection of thi! outstanding 
 assets of the cloceascd entirely to 15., the other 
 residuary legatee and executor, under an .'igrc'e- 
 iiieiit between them, by whicii B. was to reiiiic a 
 moiety when a certain specilicd amount w.is col- 
 lected, and it appeared that the residue was 
 ascertained or could have been ascertained williin 
 a year from the testator's de.itli : Held, tliat 
 A.'s claim to what was ho collcctcil muie than 
 tell years before action brought was liarieil by 
 the St.'itute of limitations, but as to what wa-. got 
 in by 1>. afterwards A. was entitled to recover :-- 
 Held, also, that the fact of the fund in B.'s li.'Uiil.s 
 having been from time to time dr.vwn upon to 
 make gnod dclicieiicies in the geliel'al legacies, so 
 tli.at tile residue was not precisely and I'ur all 
 pliriioses .iscert.iined, did not jireveiit the liar of 
 the statute; neither was there any lidiiciary rela- 
 tionship between .\. and 15., such as to li.ive that 
 ellect. (,)ua're, whether, if the money collected 
 by B. could have been specilicdly tr.iciid and fol- 
 lowed, the court would allow this to be done, 
 notwitlistanding the lapse of ten yc!ars: Held, 
 lastly, that the bar of the .statute applied not 
 only to assets distributed by 11., but also to 
 assets retained by him. lii KiikjiKtrirk, Kirk- 
 jmtrirk el at. v. Slcveii.ioit ti ah, 3 O. B., Chy. 
 D. .SGI. 
 
 Where in an action for a partnership account 
 on a contract for work done on a canal, it ap- 
 peared that the business had bei!n closed, the 
 books made up, a tinal estimate ol>taincd, and 
 the plant sold, more than six years licfore the 
 commencement of the action : — Held, that the 
 plaintitr was barred by the .Statute of Limitations, 
 and the fact that within the six years, a certain 
 sum had been paid over to the plaintitl''s s(dici- 
 tors, but without his knowledge, as the lull 
 amount of the partnership protits due to the 
 pl.'vintitf, could not operate to take the ca.se out 
 of the statute. Cotton v. Mitchell et al., 3 O. 11., 
 Chy. D. 421. 
 
 A testator directed a sum of money to be in- 
 vested, the interest whereof was to be employed 
 
4;!'j 
 
 LUNATIC. 
 
 440 
 
 
 9- 
 
 
 ill ciiilc.iviiiiriii;.' to discdvor liinbrotlier, to xvIkhii 
 till' iiKiiicy wiiH to III' ]iiii(l if ilJHcdvcrt'il within 
 fi\i yi!,'irs froiii the ilciiUi of tlic ti'stntnr, ami if 
 lint HO fnllllil till' lililiJlllit to III' |i:iiil to M. ('. 
 Till' L'Xt'i,'lltiirn took till' Imlnl (if till' liil'.sdllM 
 
 liiiliti' til luiy tlic aiiMiimt to tliv i stati', ami nuIi- 
 8i''jiii'iitly an iiistaliiii'i.t )i ly.'ililc iiiiiUrsiK'li Imml 
 was I'l'covi'iid Ky tlii' ixii'uturs and |iiiiil over to 
 M. C Aflci uanls tlif liiilaiirc was ri'ciivi.'rtMl 
 by ono of till' c.M'riilnr.i, wlm invcntiil it in liis 
 liiiHini'HS, ami Mniglil tu ili'fiat a ^\iit to roini»'l 
 payinunt nf tlii' aMiniint at tliu instiinci' of tlio 
 iursoiial ii'iii'r-iriitativr of M. ('., liy siittinj,' up 
 tlif Statiiti' of l.iiiiit.ilii.ns ; inmi' tliaii ten yi'iirs 
 liasing I'laiiscil sini'i! M. ( ". Iiad lui'oiiit' iiiiitletl 
 til tlir ln'i|n('st : Hell!, {alliriiiiiig tlii; (Icurei! of 
 the I'ourt liulow, 'J7 Cliy. 'Ml,) tiiat tliu couluct 
 of tliu rx( rntorM coiistitiitiil tlicni triisti'i'H, anil 
 that tlic light to rci'iiviT thu nnmiy was nut 
 hiiiii'il liy tlir St.-iluti' of Liuiitatioii.s; ami that 
 C, into vjiosi' liamlw tin; nioiiiy hail coniu, was 
 cliargcalilc with intiPi'.st from the tinii! of its 
 ri'i-i'ipt h\ him. Vane run v. Ciiniiilicll, 7 A. It. 
 3(il. 
 
 Thu ctl't'iit of h'ttei'H written 1>y the company's 
 president alter the ori;,'in.'il elaiiii i "d lieen barr- 
 ed, and ot re|iorts made to the eompany of elaiins 
 against them in whieli the jdaiiititl'.'j claim was 
 inelildcd, discussed as to their sutfieieiiey to re- 
 vive the elaiiii. Sluuilii, Ej-<citlri.f iif Slutnli] v. 
 Gr(ni(tJi(iirHon /,'iiiliriii/ Co., 4 O. J{.,Q. IJ. I). 
 15(j. 
 
 See also (';'o«c v. Croiu; 27 Chy. 425 p. 10. 
 Jie Lau'x—Laifx v. Ldwx, 28 (Jhy. .S82, p. .'12.') ; 
 Hoas V. Point ruij, 28 Chy. A'Ait, p. 42;{. 
 
 public; obnorvntioii, of n UoiiriHliing condition of 
 iiiri allaifH, and it in not neei'Huary to hIk^w thnt 
 the liiirriiwer is in a iiimition to diNeh.'irgo thu 
 debt without iaconvc'iiiunco. Uc I'nun, 2'J Chy. 
 ;1H5. 
 
 Llt/UlDA'iED DAMA(;ES, 
 
 Sff I'EN.VI.TV BY t,'0NTK.\Cr. 
 
 LIQUIDATED DEMAND. 
 Sve County Coi'ut. 
 
 LIQUOR. 
 
 .S'ce Parliamf.ntakv Eliiction.s— Tavehns and 
 Siioi's. 
 
 LOAN COMPANY. 
 See Building Societies. 
 
 LOANS OF MONEY. 
 
 Loans by ninnicip.'ilities to manufacturing com. 
 uanics. .See Srotlisli AimriciDi luvextmcnt Vn. v 
 Vorponilio)! <i/Uic VilkKjc of Elora, (i A. K. 628' 
 
 Qu.xTc, whether the power to give would not 
 iuclude power to lend. Jb. 
 
 Where monoy is lent to be rep.iid ■when the 
 borrower is able, his ability may be shewn by a 
 slight amount of evidence, such .is is open to 
 
 LOCAL MASTERS. 
 
 Held, that the loi'al ni.a.sters who are jiuid by 
 fei!H instead of s.'ilary, are entitleil to charge one 
 dollar jicr hour in inoney umbir chancery tarid", 
 of 2.'hd .March, IST-"*, when taxing costs. JUc- 
 OuiDiuu V. C'ldrkr, « P. U. .').')."). -IJoyd. 
 
 LORD'S D/VY. 
 See Sunday. 
 
 LOST l)i:i:i)S. 
 
 EviliKNCK Ol'" — Sen I'iviDENfE. 
 
 LOTTERY. 
 
 See f I AMINO. 
 
 LUNATIC. 
 
 1. Ai'i'i.icATioN KoK Deci.ai;ati()N of Lun- 
 acy, 440. 
 
 II. Ari'OINTMENT OK GlAKDIAN, 440. 
 
 III. CoNTUAOTS AND DeALIN(!S WiXH, 440. 
 
 IV. Miscellaneous Cases, 441. 
 
 V. Mental Incapacitv. -See I'^iiAun and 
 Miskepkesent.vi'Ion— Will. 
 
 I. AlTLICATION FOU DECLARATIo 
 
 ..\0Y. 
 
 ieclare 
 
 ig to pro 
 
 An a]iplication wiis made by pet 
 11. a lunatic, and the [letitioner i 
 (luce sutlicient medical testimony, ,i Kid for ,i 
 order dismissing the petition. Proudloot, V ., 
 declined to make such order, but made an or-.cr 
 declaring that the court did not see lit to make 
 uny order on the application. lie Itandall, 8 P. 
 K. 202. 
 
 II. Ari'OINTMENT OF OuARDIAN. 
 
 On an a]>plication under Rule (!!t, O. J. Act, for 
 an order a])pointing the otlicial guardian the 
 guardian of one of the defendants, a person of 
 unsound mind, not so found : — -Held, that the 
 motion should be made before the master in 
 chambers. Crawford v. (Jruivford, S) P. 11. 178. 
 — Proudfoot. 
 
 III. Contracts and Dealings ^VITIL 
 
 The plaintiffs made Cirtain necessp"' repairs 
 upon the defendant's vessel. At the time the 
 agreement for the repairs was made, one of 
 the plaintiffs knew that the defendant was sub- 
 
4J0 
 
 441 
 
 MALICIOUS A15IIEST, PROSKCUTiOX, Ero. 
 
 4li 
 
 :(iiii1iti()M (if 
 I hIk^w that 
 
 Ncll.llXC! tliu 
 
 w.t, 'jy Chy. 
 
 iiri! ])(vi(l Ijy 
 
 ■liiirge (iiic 
 
 iicciy tarilf, 
 
 llPstH. Ale- 
 
 • I. 
 
 CK. 
 
 ION OF LUN- 
 
 J, 440. 
 iViTii, 440. 
 
 FltAl'IJ AND 
 ^VlLL. 
 
 ^ACT. 
 
 o (ieclare 
 iig to pro- 
 
 ii.->l<i'il for ;iu 
 iidluut, V ., 
 ilcli; ;in or ,tr 
 : lit to make 
 i'liiulall, 8 P. 
 
 II AN. 
 
 J. J. Act, for 
 ;uanliaii the 
 ;i porson of 
 lid, tliat the 
 a inaatur in 
 
 y r. K. 178. 
 
 ; WiTiL 
 
 98!>--' repairs 
 he time the 
 lade, one of 
 ut was sub- 
 
 ject to iimuiiu deliiHiiiim, liclicviii^ tliat ]uhiii1o 
 were ciinH|iiriiig itg'uiiHt him td dn iiiiii hihiu' in- 
 jury. Ill', hiiwi'ver, siiju'rinti'iidi'd the ri'|i:iirH, 
 nnd tallied iiilclli^ciitly tn thu woikiiicii Liiiplny- 
 fd aliiiiit the vt'HML'l ; Imt ttmnu iiiiiiitliH after lie 
 licciiliie viiileiit, and was cunliiied in ,'in aHyliiiii 
 fur the ilixane : Meld, that the i ilaiiitill'H were en- 
 cutitlcd to recover for the wurk done, lloburt- 
 nonet uL v. AV%, 2 O. II,, Q. H. D. 1(13. 
 
 J., an infant, >^ave to M. a )iriiniiMHory note for 
 the jmrchasu nioiiuy of a luij^'j,'y, endorsed hy hix 
 father, who wau of niiHonnd iniiid, and iiiialile 
 to un<leiHtand what he waH doiiij,'. The father 
 received no coimideration, and M. wa.'uiot aware 
 (if luM condition : — Meld, on a|i[ii'al fniio the 
 master .at WoodHtock, allirinin;^ his deeinion, 
 that the fathei's estate was liotliaiiiu. Jlr Jaim/i, 
 I.) I'. U. 88.--Hoy(l. 
 
 I. Mai.iciois .AmiKsi'. 
 
 I. li'nifiOllilhli' mill I'riihilhir I'dllif. 
 
 l\. MiMixLANKocs Casks. 
 
 Where u iieiMoii of unsound mind huch liy a 
 next friend the iiaiiid pnecipe order that the 
 jilaiiitiir <hi iiKidiice is proper and is Hulhciently 
 oheyed l>v the allidavit of the next frii iid. TracU 
 V. Bvll, 6 1'. K. ooO.— lioyd. 
 
 The eoiMiiion law iij,'ht as to the ]iriority of 
 an exeiiitioii creditor of a lunatic, who ii;is an 
 execution in the hands of tin; sheiift' hefore the 
 lunatic has lieeii declared such, will not lie intcr- 
 feied »iih liy injunction restraining him from 
 icali/iii},' under liia writ. In re Urant, a lunatic, 
 L'S Chy. 457. 
 
 On a sale of tlie land of an infant under I!. S. 
 (). c. 40. 8S. ")-b'i an order was made under 44 
 Vict. c. 14, H. i"). Out., liarriiig the dower of tlu! 
 infant's mother who W.1S a lunatic and confined 
 in an asylum, lie. Vollhurt, \) I'.ll. 35(i. — For- 
 guaun. 
 
 MACllINHRV. 
 WuKN FixTiTKKs— .S'fc Fixtures. 
 
 MAGl.STilATKS. 
 See Ju.stii;es ok thk Pkack— .Sessions. 
 
 MAINTENANCE. 
 I. Of Infants — See Infant — Will, 
 II. Of Suit.s — See Cha.mperty. 
 
 MALICIt S ARKE.ST, PUGSECUTION AND 
 OTHER PROCEEDINGS. 
 I. Malicious Arrest. 
 II. Malicious Prcsecution, 442. 
 
 1. Reasonable and Probable Cauae. 442. 
 
 III. Other Proceedinc.s. 
 
 1. Proceedings in Bankruptcy and Insol- 
 vency, 443. 
 
 IV. New Trial in Case of— .See New Trial. 
 
 j The declaration alligeil that tiic ijeleiidant laid 
 an infoi'iiiatioii that ci'itaiii liainess h id lu'eii 
 
 ^ stolen liy tli( |il.iiiititr, wlunas tlic infornntioii 
 
 I proved was i)uidilied Ky thi' aildition of tiiu woids 
 " ;is he su|i|i(pMi!d ;" Meld, allirming the Jul;;- 
 meiit of the County Court, no v.iii nii'e Ft 'v is 
 shewn fli.it the iiiforniatioii was liid liy the <\r- 
 
 ; feiidant on the ;idvictp of the iii.i;.!istrate, and tli it 
 he di'l not interfeiv ii; t!i(! issue of tlio w.inuit 
 for tile |.laintill"s arrest, hut it w.is proved tli it 
 the informitiiin eiintained the Hiilisl.iiiee of the 
 statciiK.'iits made liy file defeiid.iiit, which justi- 
 lied the wair.int : Held, there lieing an alisence 
 of reasoiialiie ami prolialihi cause, that the cleleli- 
 ihuit was liiiile. C'llhirtv. /iicts, ."i A. R. .'iTI. 
 
 iS., a delitor resident ill Ontaiio, licing on the 
 eve of departure for a trip to Europe, passed 
 throiigli the city of .Montre.il, ami while tlnre 
 refused to make ,'i settlement ol an ovei'iliii; ilrlit 
 with his e:iditors, MeK.(t al., who hid iii-.ti- 
 j tuted le^^al lu'oeeedings in ( )iit;irio to recover tli> ir 
 j delit, wllieli iiidceedinj;s \ve|-eslill pending. Milv. 
 ' et al. thiM'eu [1(111 caused him to lie aiiested, and 
 S. paid the delit. Suliseipieiitly S, claiineil d.iiu- 
 : ages from .McK. et al. for the malieiolls is.illeaii(l 
 j(;xecutioii ol the writ of e.ipias. .\lcK. et al., the 
 I respond, nts, on .ippeal, relied on a [ilea of jiis- 
 tilieatioii, alleging tiiat wlieli they arre.-ited the 
 a(ipellaiit, they acted witii re.isdiialile and pio- 
 j li.iitle cause. In his .'illi.l.ivit the reasons given 
 liy thedepoiieiit -McK., one of the dei'elidaiits. for 
 his lielicl' lliat the appellant was .iliouttole.iVc tlie 
 1 Province of Canad.i, weieas follows: — "That .Mr. 
 P., the depoj.eiit's partin;!', was informed i.i.it 
 night in Tiiriiutii liy one il., a iirik"!', that the 
 said W. .1, .S. was leaving iminediaLely the I'oui- 
 inioii of Canad.i, to ero.ss over the sea lor Ihir.ipu 
 or parts iinknuwii, and defendant was hiiiisell in- 
 forined, this day. liy •!, K., lii'iiker, of tlic said 
 W. .). .S,'sde|iai tiire for I'^uropcand other [ilaces. " 
 The appellant .S. was carrying on liiisiiiess a.-, a 
 wholes.ile grocer at Toninto, and was lea', iiig 
 with his s(jn for tlie Paris exiiiiiitioii, and there 
 was evidence tliat he «as in the lialiit of crossing 
 almost every year, and tli.at liis hanker and .ill 
 his liusiness friends knew that lie was only Kiv- 
 iiig for a trip ; .•iiid there was no evidence tliat 
 the deponent had lieeii inloriiied that appellant 
 was leiviiig with intent to delraud. Tiiere was 
 also evideiiee given liy .\K;Iv., that after the issue 
 of the e.ipi.is, lint lietore its execnlion, the de- 
 ponent asked pi. liiitill' lor the payment of wli.it 
 was due to him, and that pi. liiitilf answered him 
 "that .S. would not ]i.iy him, that he might get 
 his money the liust way lie eould" : — Held, that 
 the allidavit was defective, there being no sulli- 
 cient reasonalile and proliable cause stated for 
 believing that the (kbtor was leaving \v ith intent 
 to defraud his creditors : and that the evidence 
 shewed the res[iondciit h.id no reabonablc and 
 probable cause for i.ssuiiig the writ of capias in 
 (juestion. .S/klw v. McKrnue, Hal. (i .S. C. R. 181. 
 
 Sec Ilcid v. May!,.,', 31 C. P. 184. 
 
 II. Malicious Prosei'ution. 
 
 In an action for malicious prosecution, the in- 
 forniatiou and warrant of cotuuiitinent merely 
 disclosed a civil trespass. Thu plaintitl' was uoit- 
 
443 
 
 MANDAMUS. 
 
 444 
 
 • Ml 
 Ml* 
 ««• 
 
 k :*f 
 
 miitr'd at the trial. It ai)))earc(l, however, that 
 the ilefeiiilaiits liail not iliscloMcil tlie whole faets 
 to the magistrate, ami tliat, iit the hearing, on 
 tile iilaiiititl''s solititor ohjecting tiiat no criminal 
 otlence was charge'd, one of the defendants .said ' 
 tliat in order to have the case investigated he 
 wiiiild cliarge the jd'iintitV with stealing tile oats. 
 The statementof elainiallegedthatthedetendants ' 
 had charged the |)laiiititl' with felony, 'J'he Court ' 
 set aside the nonsuit, and granted a new trial, ' 
 w itli leave to the jilaintitf to amend the state- : 
 inriit of claim aeenrding to the facts. Per Wil- 
 son, C J. Send)le, that the facts stated al)ove 
 Were evidence that the <lefendants were putting 
 the criminal law in motion and, tlic information 
 ami warrant heing invalid, they were liahle as 
 trespassers. Per Osier, ,]. Qna-re, as to this, 
 and wliether an action for nialioi<ius prosecu- 
 tion will lie for making a false and malicious 
 statement to a magistrate, shewing nothing 
 which conferred ji'risdietion on him, but on 
 which, neverthcleso, he acts by issuing a war- 
 rant. MactUtHdid V. JIdiwood et ctL, 32 C. V. 
 
 In an action for malicious prosecution the 
 want of reasonable and jirobable cause does not 
 neces.sarily establish that malice which is reipii- 
 site to maint'iiii the action. Therefore where 
 the jury were directed, in the courseof thocharge, 
 that if a i)erson makes a charge against another 
 for tlie purpose of his being arraigned upon it 
 without being justilieil in point of law, tlien he 
 does it nialiciou.-ily : tliat tliey need not trouble 
 themselves with a question of malice except as 
 it might lie inferred Iroiu want of reasonable 
 and iirobal''.!,- cause, and that if the information 
 had been laid witliont p'-opcr cause the result 
 would be that it was l.iid malic ourly ; and the 
 pl.iintifl' obtaini^d a verdict of '-.'illO : —Held, mis- 
 direction, for which anew tri il slioiild lie granteil. 
 I'er llagarty, (]. J., dissenting. 'J'hougli tlie 
 directions standing alone miglit be open to criti- 
 el.-^in. the charge liilist be read as a v.iiole ; but 
 a> the jury were afterwards told rcjieatediy Jiat 
 tiiey should linil for defendant if tlivy thought 
 tiiat he believed the matter.s sworn to in bis inlor- 
 matio'i, there was no misdiiection wiiich would 
 warrant interference with the iilaiiitili's verdict. 
 Vv here the damages are large, and to a great ex- 
 tent seiitiinent.il, tliis ma\" well lie considered in 
 deciiling wliether there has been a substantial 
 wrong caused by v clear misdirection. Wiiijivld 
 V. Kiait, 1 O. K., ). H. D. VJ.i. 
 
 III. OniKU M.Vi.IClOlS PKOOEKDINliS. 
 
 1. J'rvcei'ilhii/x in liankrujilcijnntl hi^nlnncij. 
 
 Held, by (!alt, J., that an action will lie by a 
 debtoi against a creditor to recover damages for 
 falselyanil maliciously makiiiga deiiiaiul for anas- 
 sigiimeiit, under the 4tli sec if the Insidveiit Act 
 of l)S7i>, and amending Acts, aiidthat Irs remedy 
 is not confined to the imposition of treble costs 
 nnder sec. 5. ^'ujlc v. Timiiiinn it al., 31 (J. P. 
 2-JI. 
 
 To sue': action, thi; defendants' third plea, 
 after setting up a variety of dealings between 
 the parties shewing that the plaintitt' had from 
 ti'iie tu time failed to meet his engagements with 
 defendants, uoncluded, th.-it the jmiintit!' being 
 imlelited to the diifendants in the sum of .^!l,400, 
 and being unable tu pay the same or to meet his 
 
 engagements, and the plaintiflF being also, to the 
 knowledge of the defendants, indelited in large 
 sums to divers other persons, creditors of the 
 plaiiitifl", the ilefendants bona, tide believing the 
 plaintiff to be insolvent ".vithiu the meaning of 
 the Insolvent Act of 187"), and amending Acts, 
 and having reasonable anil probable K'auso for so 
 believing, and without malice, made u demand 
 on the plaintitr, &c : — Held, a good plea, although 
 it was not expressly a\ciied, in the words of 
 sec. 4. that the plaintiff had ceased to meet his 
 liabilities generally .as they became <lue. Qua're, 
 whether that expression means his liabilities to 
 the particular creditor, or to his creditors gen- 
 erally. //>. 
 
 MALICIOUS INJURY TO PROPERTY. 
 See Reniiia v. dom/h, 3 0. R. 402, p. 187. 
 
 MALICIOUSLY WOUNDINO 
 
 See Ri'i/bia v. Boucher, 8 P. R. 20 ; 4 A. R. 
 101, p. 18V. 
 
 MANDAMUS. 
 I. Power of Couut ok Ch.vkcf.ky, 444. 
 
 II. To Coi'NTY Couut Judoes .vnd Cleuks, 
 444. 
 
 III. To Se.ssio.ns, 445, 
 
 IV. To MuNicii'.vr, Corporations and Offi- 
 
 t'EKs, 44.5. 
 
 1. TopitKn Jii/-I<nr.^ or insiie Dilivm.iri'H in 
 aid iif Railiuaijit — .SVc K.viLWAY.s 
 AND Railway Co.mi-anies. 
 
 >'. Tu I'aii.wav Companies. 
 
 1. licijiHtritioH of liondt—Sir Railway.s 
 AND Railway (Jompanies. 
 
 VI. Appeal, 446. 
 
 I. Po\VER OF Court of Chancery. 
 
 Under R..S.O. c. 40, s. 8fi, c. 4!», s. 21, and c. 
 52, 8. 4, et seq., the Court of Chancery could 
 exercise the jiowers of a court of law in any pro- 
 ceeding, and the jiowcrs of the Coinincm Law 
 Courts to grant mandamus upon motion not be- 
 ing by the latter Act restricted, the Court of 
 Chancery might also hav ; granted a mandamus 
 upon motion ; and under the .ludic.ature Act, 
 nothing appearing to restrict the jurisdiction, 
 the Chancery IJivision of the High (.Jourt of Jus- 
 tice h.as the .lame jurisdiction, lie /iourd of 
 Eilitcalioti of Xii/tniife and Tlif Vorporation of the 
 Town of Nupnni',; 29 Chy. 395. 
 
 II. To County Court Judoks and Clerks. 
 
 Whore a County Court Jud^o improperly re- 
 fuses to hear the argument of a rule nisi, man- 
 damus is the proper remedy ; and where the re- 
 fusal to hear had liecn caused hy an u'lmeritori- 
 ous objection deliberately taken a,v \ iusietod 
 
444 
 
 44:» 
 
 :\IARIT[.ME COURT. 
 
 446 
 
 also, to tlie 
 Mil in large 
 tors of tho 
 jlicving the 
 iiiuaniiig of 
 iiliiig Acts, 
 •ause for so 
 ii demand 
 a, altliDiigh 
 i words of 
 o meet his 
 c. (Jii.ero, 
 )ilities to 
 iditora gen> 
 
 'EIITY. 
 p. 187. 
 
 NOr. 
 
 ; 4 A. R. 
 
 !RY, 444. 
 
 M) Clkuk.s, 
 
 [s AND OffI- 
 
 )i'/)e)if. <>•)'>> hi 
 ■ Kailways 
 
 IKS. 
 
 r IIailwav.s 
 
 IF.S. 
 
 CF.RV. 
 
 I. '21, and c. 
 noery could 
 • in any pro- 
 )ininon Law 
 )tion not bo- 
 he Court of 
 \ mandamus 
 loature Act, 
 jurisdiction, 
 Jourt of Jus- 
 V IStKird of 
 >raliim of the 
 
 ) C1.F.IIKS. 
 
 [jroperly re- 
 e nisi, man- 
 here the re- 
 u'liueritori- 
 V \ iusietod 
 
 uiMin by defendant, he was onlereil to ])ay the ! 
 Cdsts of tlic .■i|i])licatioii for mauilanius. /n re 
 Belli V. C/iitiiihrrliii, 8 P. R, 303.— Osier. 1 
 
 To County Court Clerk to enter up judgment. 
 Set' R<' (h-i'iii ]Vi'xh>ni Ailvcrtlfhiij (Jo. v. lia'mer, i 
 9 I'. K. 4'J+, p. ICO. I 
 
 Tiie i.ppoiiitini'nt of a creditor , as administra- I 
 to" is not ns of rii^ht, hut rests in tho discretion ' 
 of til ■ judifc who appoints, and that cannot he 1 
 intiirfercil with hy any peremptory writ ; and j 
 R.S.U. c. 4'!, ss. 3.'. 3(), do not Ixittcr tho ciiitn 
 of a creditor. /?' <>' lirh-ii, 3 O. 11., (Jiiy. \). 3_'(;. ' 
 
 See also lieijiiia <x rd. Grant v. Cokitiait, 7 A* 
 R. 019. 
 
 III. To SKS.SIONS. 
 
 A minute of conviction sii^nicd hy the justiccj 
 hut not sealed, was returned to tho sessions upon 
 the entering of ,in jippeal tlicrefroin by tlie de- 
 fendants. Tlic jury found the (lefcud int guilty 
 of the oirenee of which ho had been convicted, 
 but on motion lor judgment he objected that the 
 ciniviction was n it sealed. The chairman re- I 
 served judgment, .ind during the adjournment 
 tho justice leturnecl anil tileil a conviction under 
 seal. The chainiim tlien clcclined to receive it, 
 or to give judgin ■\\t. holding tliat there was no 
 Conviction u[ion which to found the .ap|)L'al, which 
 hid been l-.eard ; Held, that tlio proseeuti.r was 
 nut entitled to a mand'inus to compi^l liim to ' 
 deliver judgment ; fiU' the reception of tlie con- 
 viitiou in evidcnee at tliat period was in the 
 oil urinan's discr.tion wliiiOi jould not be re- 
 viewed, /ii !•( Jt'i/rr awl /Voi/w, 4f) Q. B. 20G. 
 
 The Court of (,>ueen's Bench has no power to 
 grant a mandamus to compel the sessimis to re- 
 hear an appeal. l''<jhia v. O'roiiiijer, 4() (j. B. 
 382. 
 
 IV. To .MrMCIi'AI, CoiU'OliATIONS. 
 
 The defendants in ISf!.") passeil a by-law for 
 the construeti(Ui of a drain which went through 
 the plaintiirs bind, and for assessing certain 
 lamls, including thepliintitj"s, therefor. Thedrain 
 was commenced in ISiid and completed. In 1873 
 they jiasscil aiiotlier by-law for widening and 
 deepening this di'iin, which was accordingly 
 deiie. In jSSl, they constructeil .another drain 
 ruiming into t'le lirst below the plaintitr's land. 
 The tirst drain having bcc<une out of rejiair an I 
 ciioked n|i, thi; pl.iintili's lands were to some ex- 
 tent II led in the spring and autumn, and the 
 
 water hiy longer than if the drain had been kept 
 properly clear :-- ■ leld, allirming the judgment of 
 Ilagarty, C. J., (I'ameron, .1. dissenting) that the 
 plaiutiir was entitled to recover against the de- 
 fendants for their breach of duty in not kee{)ing 
 tile drain in repair under 11. .S. (). c. 174, a. 
 543, and that a ni mdanms should issue to com- 
 pel the <lefendants to make the necessary 
 repairs. I'er Cameron, J. -An action is ex- 
 pressly given by s. iH'2 for injury done by such 
 neglect, where the drain serves two miinieip.ili- 
 ties ; but in a ea.se like the present, though un- 
 der s. .543 the nmnicipality may be compelled by 
 niandamits to repair the drain at the expense of 
 the lauds benehted, no notion lies for injury 
 caused by non-rep.iir. IVIiife v. <'or/)oriitii)n 0/ 
 Towiuhip ofOoHjirUI, 2 O. U., y. B. D. 287. 
 
 Minilamus to municipil norpor ition to levy 
 rates for High School ll>ard. .See hi re lli<jh 
 Scliiml Bo ml, nf flh/k Si-hnil DU'rlrt .Vo. 4, of 
 Ike United Coniilh'.t of S/nriii'mt, nundu, find 
 Gli'nrjiirr/i and Ih ■ Miiiih'ijinl Cor/iora/loii of the 
 Toionship of \Viiich"'<ti-r, In llio Couiili/ of Dnn Itn, 
 and In the in I'lfr of tin' sdd Ifnih Sclvml liotnl and 
 the, Miinir'ijial (^orpi)r(ition of'lli' Toiri^hipot' Wil- 
 liamsharij, hi the Counti/of Duiid'H, 45 1 J. U. 4()0. 
 
 There having been a misnomer in the names 
 of the ai)plicants, per Armour audCamenui, J J., 
 such misnomer not having been objected to on 
 the argument below might be amended. Per 
 Ilagarty, C. .1., in such a case no amendment 
 should be granted as a :r.:itter of discretion. lb. 
 
 To Board of ,\udit in cases relating to fees of 
 County .Attorneys. See [n re Fenton, Count;/ 
 (Jromn Alfornn/ for the Coiinti/ ~f York and the 
 Hoard of Audit for the IJoniii'i, ../ York: 31 C. P. 
 31 p. 1()."). In re S/anton and, t.'r- lininl of Audit 
 of the Count;/ of LVi/hi, 3 (>. R. 80 p. 100. 
 
 VI. Appkal. 
 
 Hold, th.at the appeal in cases of mandamus 
 uu'ler 8. 23 of the Snpreuio jind Hxctieijuer Court 
 .\ct is restrieteil by the application of s. 1 1 tcxleci- 
 •sions" of "the highest court of lintd resort" iu 
 the Province and that an a|)pcal will not lie from 
 .any court of the jirovince of Quebec but tlie Court 
 of (Jueon's Honch. Kournicr and Henry. .J.f., dis- 
 senting. Danj'Hi V. Afari/'iii 3 .S. C. Iv. 251. 
 
 MAXSL.VUCHTER. 
 See Criminal Law. 
 
 MANUFACTOBTK.S. 
 Boxr.s r.Y way of Aim to — See Muxicipal 
 
 CoUPOI4ATlON.S. 
 
 MARINE INSURANCE. 
 
 See iNsruANof:. 
 
 .MARITIME COURT. 
 
 Where a di-<i)utcd fact involving nautical i|UC9- 
 
 tions is raised by an appeal from the judgment 
 
 of tho Maritime Court of Out irio, as iu the case 
 
 of a collision, tlie Supremo ( 'ourt will not reverse 
 
 ! the (iocroe of the judge of theeoprt below merely 
 
 I n))on a balance of testimony. The Pirton -~- 
 
 1 MrCnaii/ el al. v. KiUh, 4 S. C. 11 (i43. 
 
 I Held, that 40 Vict. c. 21 , establishing a court of 
 maritime jurisdiction for the province of Ontario, 
 is intra vires of the Dominion Parliament. Ih. 
 
 I The appellant's child, a minor, was killed in 11 
 j collision lietween two vessels by tho negligence 
 
 of the olfieers in charge of one of them ("The 
 lOarland.") Petition .agaimst "Tho Carlaml"— 
 I libelled under tho .M iritimo Court Act at the 
 j jiort of Windsor— on behalf of tho appellant 
 
 ulaiining $2,000 damages suffered by hor, owing 
 
447 
 
 MASTER AKD SERVANT. 
 
 448 
 
 
 to tliu ilcatli (if lier win ami servant, ear.L'cd by the 
 licgligiiiie ot tlif ( lllcir.s in cliaigu (if the ^aid 
 "Cailand." The UKumiUnt intervened, and 
 diuiurrid (in the gmnnd that tlie I'etition did 
 iKit tit fditli a laiifcc of aetii.n agaiist " The (Gar- 
 land" vithin the jurif-dieticn nf the cimrt : — 
 HcUl, (FonrnierandTasiheiean, JJ., di^^senting), 
 that tilt Maritime Cdnrt uf Ontario has no juris- 
 diction aj^iart nviu K. S. (). e. I'iS (re-enacting 
 ill that province Lord CaniiibeU's Act, U & lO 
 \'ict. c. '.Ill), in an action for iier.sonal injury re- 
 sulting ill death, and therefore tho aiiiiellant had 
 uo locus btandi, not having Lionght her action 
 as the ptisonal reinesintativc of the child. I'er 
 l"'oninicr, Tai-chtuan, Henry, and (Jwynne, JJ., 
 {reversing the judgment ( f the iMaritime Court 
 of <Jiitari<'),that\'ice-;!(!niiralty Couits in liiitibh 
 poBirci-sioiis and the Maiitime C'ouit ot (.Jntaiio, 
 have Mliiite\er jnri!-(iicti( n the Hi).h Court of 
 Admiialty has ovir "any claim lor danuiges 
 done by any f-hiji, vhethcrto jicrson or to pro- 
 pcrty." I cr I'ournicr and TaKcluican, JJ., dis- 
 senting, that aj art fnin and indeicndciitiy ot l\. 
 a. O. c. 1'2)^, tlie Maritime Court of Untario liad 
 jurisdiction in a pioceeding in rem against a lor- 
 eign vessel for the recovery of damages for in- 
 juiies rifrulting in death; that the appellant, 
 cither in the cup.'icity ol parent or of mistress, 
 ■was entitled to claim daniages for tlie Iols of her 
 son or servant, in n- 'J lit (juiiaud — Moiuujhuii v. 
 honi, 7 S. C. K 41)9. 
 
 dint for a year from the 1st of December thdi 
 next : — Held, that there conid be no rocoveiv 
 for vroiigful dismissal, the iign emcnt being one 
 
 'not to lie [lerfoinicd within a year; and thi't 
 there being an express agrceniei.t in fact, iin 
 
 ' other agreement tor a monthly hiring could be 
 implied. J/arjur v. Dur'ufi, 4."! t^. 15. 44'J. 
 
 Held, reversing the judgment of the County 
 Court of ^'ork. that a contract of hiring for a 
 I year or more defeasible within the year, is williiu 
 the fourth section of the. Statuti; of Frauds. The 
 agieiiiRnt, as alleged by the plainliti. was iiiade 
 jn h'cbiuary, b'->(), whcicly the dcfcnd.iiit was 
 to jiay him for his seivio.i while he should re- 
 main in dclni(hii/t's employment, at tlie rate of 
 i.")(;0 a year, lor one year, and thiicaitei at mkIi 
 tahijy as might be agreed u| on ; the jilaiiitiir to 
 eiiti r upon his lintics, and his salary to eoiu- 
 meiice on the 9rd ot March, then next, iind de- 
 i ieiidaiit was to lie at liberty to detennino the 
 : emiiloyment at the expiration of a niontli named, 
 I otherwiise the agreement to remain in lull force 
 lor a year, and for such longer jicriod us might 
 be agreed uiion ; — Hchl, clearly w ithin the stat- 
 ute. Bvoih V. I'rltlk, (i A. ll."()(>0. 
 
 MAKKIACE. 
 See HusiiAM) .\ND Win.. 
 
 MArv.SHALLlKG 
 See Clark v. Bo.jaii, 'II Chy. 450. 
 
 MASTER. 
 
 Sec Local Mastiu;.s— Tkactice. 
 
 MA.STER AKD SERVANT. 
 
 L CONTUACT OF HlUINd. 
 
 1. Wliat Amoants to a Yearly Hiriny, 
 
 447. 
 
 2. Ol/i<r Caxrs, 448. 
 
 II. RimiTs (IF Mastku AM) Servant. 
 
 1. Aclionn for 11 «;/m, 449. 
 
 2. Wroiiijful DhmisHol, 449. 
 
 III. LlAlllUTY OF MaSTEH FOR ACTS OF 
 
 Servant, 450. 
 
 IV. Injunction to Restrain Intimidation 
 
 OF Servants, 451. 
 
 I. CONIRACT of HiRINU. 
 
 1. ]Yha( Avioiiulf to a Yearly Hiring, 
 
 In an action on a verbal ngrccinciit made in 
 November, for the hiring of plaintitl" by dcfen- 
 
 2. Other CiiM-.-i. 
 
 Municipal otiicers a]i))ointed by tiie couuiil 
 hold ollice during the pleasure ot the council. 
 and may ne removed without notice and without 
 cause. W il-fon \. York, MS (i. i\.-lH\.). 
 
 Where the idaintifV was engaged by the de- 
 fendant tor "tlic season," i. c, from early in Miiy 
 till some time in Novenilicr, as niastci' to 'iiaii- 
 age the steamer " Idyl-Wyld" for .*1()(H), and he 
 continued so employed until .September, whin 
 the steamer was liiirnt : — MeM, that the plaintill 
 I was not entitled to more than the proportionate 
 j share of the salary agreed upon, lor the contract 
 was subject to the continued existiiiee of the 
 vessel, and perl'ormaiiec w.is excused by its de- 
 struction without the default of the defendant. 
 Ellis V. The Midlnml, /?. II'. ''..., 7 A. R. 4(11. 
 
 The plaintifT's testator was chief engiiKM r of 
 the detendant company from its incc[ition until 
 arrangement made by the company with one H. 
 for the completion of the road by H., he ]i.iving 
 ail expenses, &c., including the engineei's s.daiy. 
 in 1851 the testator wrote a letter to the solici- 
 tor for the (irand TrunU Kailway Coiniiany. 
 Mhicli conijiany was about to resume control of 
 the defendants' railway, claiming for services 
 rendered the defendant company up to the mid- 
 dle of 1875. The action was conimcnced in Feb- 
 ruary, 1882, for services rendered from 1871 to 
 1875. At the trial ,in amendment was made al- 
 lowing the ]ilaintitTto claim for services render- 
 ed up to 1880. It aiiiiearcd that the testator 
 was to h.ive had a salary, but the .•inionnt was 
 never fixed. During the period from 1875 to 
 1880 or 1881 he performed services as engineer 
 for the defendant com[iaiiy, certilying to work 
 done, that the company might obtain bonuses, 
 attending meetings and deputations. He also 
 approve(r of plans of a bridge siibmitted to him, 
 and in 1878 signed the Bpeciticatioiis appended 
 to the contract lictween the comiiaiiy and K. : — 
 Held, Hagarty, C. J., disECuting, that th' le vas 
 evidence to go to the jiirj' of a continuiiii.' em- 
 ployment of the testator 8ubBe(iuent to 1876, and 
 
448 
 
 449 
 
 MASTEK AND SEKVANT. 
 
 450 
 
 :eii)1)cr tin 11 
 no lecdvevv 
 
 it lloillg OIIL' 
 
 I' ; iiiid tlii't 
 ill t'cict. iiii 
 
 Ug Cliulll Ijf 
 
 J. 44-J. 
 
 tlio ('(11111 ly 
 hiring tor a 
 iiir, is williiu 
 raiiils. Tlie 
 11 . « iis luiide 
 fcllilallt wiis 
 e .slidultl IX'- 
 t lliu nitc (if 
 lUtti at hiicli 
 e iil.iiiitiir to 
 >iirj' til i.'iiiii- 
 i-xt, !uul lU- 
 .•ttniiiiie tlie 
 iiiiitli iiiinK.'il, 
 ill lull force 
 oil <is might 
 ,Liiii the stat- 
 
 tho council 
 tlic council, 
 anil witliuut 
 jS). 
 
 1 l.y the lie- 
 larly in M:iy 
 i>tcr to 'iiaii- 
 :l()()0, anil lie 
 I'lulicr, whin 
 ; the iilaintill 
 irii|ii)i'tionatc 
 the coiitiMct 
 
 itl ihc of tilt' 
 
 .'il liy its ile- 
 ic (li'fenilaiit. 
 A. 11. 404. 
 
 f ongini'i r nt 
 ici'iition i.iilil 
 
 with one H. 
 !., ho liayiiig 
 iicci's .^alaiy. 
 t" the solici- 
 ly Coiniiaiiy, 
 no cimtrol uf 
 
 for services 
 (I to the mill- 
 L'lKcil in Fi'h- 
 from 1871 to 
 wa.s maile al- 
 vicis renilcr- 
 
 the testator 
 
 amount was 
 from 187') to 
 s as engineer 
 ying to worli 
 tain Itoiiuaes, 
 ins. He also 
 itti'il to him, 
 ms apiicnileil 
 iiy and K. : — 
 ;liatth. II- viis 
 iiitinuiii!.' em- 
 it to 1876, niul 
 
 of services rendered as chief engineer within the 
 six years preceding action, notwi* iistanding the 
 letter written by the testator eli.iming for ser- 
 vices up to 1875 only ; and th.it any inference to 
 be drawn from the writing of tlie letter was for 
 the jury and not for the judge to draw ; and a 
 luiusuit was set aside. I'er Hagarty, C. J. The 
 evidence shewed that the testator, though noni- 
 iiially chief engineer of the defendant company 
 suhseciuent to the cf. r.jtwitliB., was in fact 
 working for B. to \\ ■ he looked for iiayniont. 
 Tlie edict of lettei v. .itten by the company's 
 president after the original claim had been bar- 
 red, and of reports made to the company of claims 
 against them in which the plaiutifl's claim was 
 included, discussed as to their sullicieucy to re- 
 vive the claim. SIkiiiIi/, Kimilflj: of Slmulii v. 
 Grand Juudion li. W. 'Co., 4 O. K., Q.B.D. 'l5G. 
 
 telling the plaintiff that ho did not any longer 
 rc(juire his services, but that if W., another 
 olHcer of tlie company, had anything for him to 
 do outside he would be vei'y glad, adding, "But 
 1 have no further service for you in the oHico, in 
 
 I fact 1 do not want you in the olKce. " 'J"he plain- 
 tiff refused to rccogiiizo the right of I', to thus 
 
 I remove him, and it w.as arranged between plain- 
 tiff, W. and P., that plaintiff should remain oc- 
 cupying his time with other work until it w.is 
 ascLitaineil from the head ollico if 1'. had the 
 
 , authority he asserted ; and on obtaining infur- 
 
 ] Illation in tlio atlirmative, ])laiiitiff left : — Held, 
 affirming the judgment of the Court below, that 
 
 , the action of the defendants was a dismissal of 
 the plaintiff'. /><(.</( v. The Mir'ulen Britautda 
 C'ompaiii/, 8 A. K. 680. 
 
 II. Rights of Mastek and Sekvant. 
 
 1 . ^1 cHuit for iVaijc-i. 
 
 Bight to investigate accounts &c. where em- 
 ployee has a share in the profits in lieu of re- 
 muneration. K. S. 0. c. 133 s. 3. See Ji'oijcru v. 
 Ullnmiiu, 27 Chy. 137. 
 
 To an action by a commercial traveller for 
 w.iges defendants pleaded a discharge in insol- 
 vency the plaintiffs replied that the claim was 
 pi'iviligi'd ; — Held, reversing the judgment of 
 the Queen's Bench, 45 (i>. H. 188, that privileged 
 claims are not within the class of debts mentioii- 
 ecl in s. ()3 of the Insolvent Act 1875 to which 
 a discharge does not apply without the consent 
 of the creditor. Fryer v. Sh'uhh, G A. 11. 57. 
 
 2. Wroiiiij'ul DiamUial. 
 
 The plaintiff' agreed with the defendant to 
 serve liiiu as a manager of a tannery for si.\ 
 years, the agreement reciting that he v;s to 
 manage the works while the defendant i ■ to 
 furnish the capital, lie also agreed to disclose to 
 the defendant a secret process of tanning, which 
 ilefendant was not to u.se after the agreement, 
 except in connection with plaintiff', and tomaiiu- 
 i'acture the leather according to such process. 
 The defendant discharged the plaintiff after 
 alMUlt seven months, alleging, ainongst other 
 tilings, that he was not a practical tanner, and 
 that he was not using the secret process, and had 
 not disclosed it to the defendant : — Held, revers- 
 ing the judgment of I'roudfoot, V.C., 27 Chy. S(i, 
 that the jilaiiitiff was a practical tanner within 
 the meaning of theagreement: and thatthe manu- 
 facture of leather was being carried on according 
 to the secret process, and that as no time was 
 limited lor dischising such [irocess, the defendant, 
 who had never asked for the disclosure, had no 
 rightto dismiss the plaintiff for its non-dischisure. 
 A reference was tlierefoi'e directed as to the dam- 
 ages sustained by the failure of the defendant to 
 perform his part of the agreement, and for the 
 dismissal, lilak-i' v. Kir/,'i>afrivk; G A. U. 212. 
 
 The plaintiff renewed his engagement for a 
 year with the defendant company at Hamilton 
 to serve them in the capacity of book-keeper. 
 Before the expiry of the time agreed for, 1'., one 
 of the managers of that branch of the company, 
 rnmoved the bcjoks from the possession of the 
 plaintiff, placing: another iu charge thereof and 
 
 2» 
 
 111. LlABILITV (IK MasTKK KOIl Al^'T.S OV 
 
 Skkvant. 
 
 Selling liipior without license. — Liability of 
 servant. .See lU(ftna v. lluicanl, 45 Q. B. 34(j. 
 
 The plaintiff", being engaged in the service of 
 the defendants in repairing a liridge. was injured 
 by the fall of the hammer of a pile-driver, caused, 
 as was found, by the negligence of one M. The 
 wink was being performed in 15. 's section, K. 
 being a councillor, and M., who was the reeve 
 of the niuiiicipalit}-, was eiii)il(iyed at day wages 
 by It. as foieman : — Held, that M., though 
 reeve, was not acting in that capacity, but as a 
 hired fellow servant with the iilaiiitiif; that 
 there was nothing to so identify the defendants 
 with him ii; the work, as their chief officer, ast^i 
 
 i take the c:ise out of the iirdiinry rule governing 
 the lelati 111 of fellow servants; and that the 
 
 I ])laintirt' therefore couhl ..jt recover. Dr< w v. 
 
 i Till ('oriioniliun of I hi- Toirnshiii of EaM W'/iitl/i/, 
 4()Q. B. 107. 
 
 'I'lic plaintiff who had purchased a special ex- 
 I ciirsiim ticket frinii 'roninto to Niagara and re- 
 turn on the same day by a steamer of the de- 
 fendants, and which had lieen taken up by the 
 purser on that day, claimed the right to return 
 by it on the fiilliiwingday under an alleged agree- 
 j iiieiit with the purser, which the hitter denied. 
 On tlu" purser ilenianding the plaintiff's fare, and 
 the latter refusing to [i,iy it, the ]iorter by the 
 purser's direction, laid hold of a valise which the 
 plaiiititl' was carrying, and attempted to take it 
 and licild it for the fare, whereupon a scuffle en- 
 sued, and the plaintiff was injured : -Held, tls- 
 ler, .1., dissenting, that the piiiscr was not act- 
 ing within the scope of his duty in thus forcibly 
 atteiinitiiig to take possession of the valise, and 
 the defendants were not liable for his act. 
 [ Einer.tiiH v. Thi: Nkn/iira Xarii/otioii Co., 2 O.K., 
 C. P. 1). .ViS. 
 
 j It apiicared that the purser had been summon- 
 ed by the plaintiff before a magistrate for the as- 
 sault, and a tine imiiosed, which he jiaid. I'er 
 Wilson, C. .1. Thi.s. undi r :V1-Xi Vict. o. 20, .s. 
 ! 45, I)., through a release lo olio purser, did not 
 ' constitute any bar to tin' eseiit action against 
 the company. /'(. 
 
 Held, also, that the alleged imprisonnient 
 the |ilaintiir )iy the purser in his office for non- 
 ))aynient of his fare, not being an act which the 
 defendants themselves could legally have done, 
 the defendants were not liable for it. Jb. 
 
451 
 
 MlSNOMEll. 
 
 4-52 
 
 
 L 
 
 ! 
 
 
 kM. 
 
 
 
 Ill 
 
 
 
 «»«. 
 
 
 
 »■< 
 
 
 
 !'•* 
 
 
 
 Uu 
 
 ' 
 
 
 t'^* 
 
 
 
 ♦:.v 
 
 
 
 ««i» 
 
 r- 
 
 II 
 
 h 
 
 «»» 
 
 
 
 Liability of iiiuiiiciiial corjioratimi for iu't nf 
 collcctiii'. — Itesiionik'at suiierinr. Suu McSur/'i/ 
 V. Tlif Miiiim; dr., o/' //le City nf Hi. John el al., 
 
 Liability of crown for negligence of its ser- 
 vants. Sue Ifcijiua V. McFarlanc, 7 S.C.R. 216. 
 
 IV'. Ls.iiNCTioN TO Restrain 
 OF Servants. 
 
 Intimidation 
 
 See Jfi/tiis H o.l. v. FUhar et al., 4 0. 11. CO, p. 
 348. 
 
 MAXIMS. 
 
 The rule that "he who comes for equity must 
 do equity"' ciuisiderod and applied. Clcntow v. 
 liuol/i, 27 Chy. 15. 
 
 The maxim that the Crown can do no wrong 
 applies to alleged tortious acts of the officers of 
 a public department of ( )ntario. The Alwikoka 
 Mill Co. V. The Queen, 28 Chy. 503. 
 
 Where a widow who liad married again tiled 
 a bill alleging that she had accepted the provi- 
 sions and beijuests given to her by will in ignor- 
 ance of her right to dower, had she elected to 
 take dower ; and in her evidence she swore that 
 she had b;;eii ignorant of such right until atl- 
 vised in rcKjicct thereof in ISSO, shortly before 
 her seconil marriage, .and she now sought to 
 have dower assigned to her : — Held, that the 
 rule " Ignonintia juris neminem excusat" i.ppli- 
 ed, and the bill was dismis.sed with costs. Oil- 
 lam V. Oillinii, 29 Chy. 376. 
 
 Tiie maxim "respondeat superior" applied in 
 an action against a municipal corporation for act 
 of colli.'ctor. Sec McSorley v. The Maijor, tl'f. , 
 of the Vlli/ of. St John et at., 6 S. C. R. 531. 
 
 the name of the defendant with only the addi- 
 tion "M.D.": — Held, that the use of the simple 
 letters "M.D.," in eontradistinctiou to the full 
 titles of the partners of defendant appearing ou 
 the same fan-light, was not the use of a title 
 " calculated to lead people to infer" registration, 
 and that defendant therefore could not be con- 
 victed under s. 42 of the Oufoirio Medical Act, 
 R. S. 0., 0. 142. Iteuina v. Tejft, 45 Q. B. 144. 
 
 MEASURE OF DAMAGES. 
 See Damages. 
 
 MECHANICS' LIEX. 
 Sie Lien. 
 
 MEDICAL PRACTITIONER. 
 
 A medical ])ractitioner registered in Great 
 Britain, to entitle himself to practise in this Pro- 
 vince, must be registered under R. S. O. c. 142, 
 8.21. In this ease the plaintiflf, a practitioner 
 registered in Great Britain, but not in this Pro- 
 vince, claiming to be entitled to ])ractise here, 
 brought an action against the defendant for slan- 
 dering him in his profession, by stating that he 
 was a (|uack, &c. : — Held that the action was not 
 maintainable. Skireimj v. Hoxii, 31 C. P. 423. 
 
 Where defendant, in partnership with two re- 
 gistered practitioners, resided in an establishment 
 over the door of which was a fan-light containing 
 the names of the registered practitioners, with 
 the additions " M. D., M.C.P. & S., Out,, and 
 
 MEMORIAL. 
 
 Proof of deed by. See Van VeUoretal. v. Hugh- 
 son, 45Q.B. 252, p. 255. 
 
 MENTAL INCAPACITY, 
 
 .S'tc Fraud and Misrepresentation— Lunatic- 
 Will. 
 
 MERGER, 
 
 Of Mortg.vue Debts — See Mortoaob. 
 
 MESNE PROFITS, 
 
 See Ejectment, 
 
 Right to mesne profits in action of Dower. See 
 Eijun V. Fish, et al, 4, O. R. 335 p. 227. 
 
 MINES. 
 
 Right of railway to expropriate. See Jenkins, 
 et al. V. The Central Ontario 1{. W. Co., 4 0, R. 
 593, p, 344. 
 
 [See 47 Vict, e, 30, Ont.] 
 
 MISDIRECTION, 
 See New Trial. 
 
 MISNOMER 
 
 Qu;ere as to the eflfect of the defendants being 
 described in the note in question in this case as 
 the " Wiitertown Insurance Company " while 
 the real name was " The Agricultural Insurance 
 Company of Watci-town, N.Y." See Sears v. 
 The Aiiricultitrat Ins. Co. et al, 32 C. P. 585. 
 
 There having l)een a misnomer in the names of 
 the applicants per Armour and Cameron JJ. such 
 misnomer not having been objected to on the ar- 
 gument below might be amended. Per Hagarty, 
 C. J. in such a ease no amendment should b« 
 granted as a matter of discretion, /n re Hiijh Sfhool 
 Jioaril of lliijh School District No 4 of the UniteA 
 Counties of Slornwnt, Dumlas, ami Olenijarry, 
 and the Municipal Corjtoration of the Township of 
 Winchester in the County of Dumlas and In the 
 matter of the said High iSehool Board and the 
 
4,') 2 
 
 y the adcli- 
 »f tliG simple 
 to the full 
 ppeuring on 
 of Ik titlu 
 •egistrntion, 
 not bo con- 
 lediunl Act, 
 5 Q. n. 144. 
 
 iai. x.llmjh- 
 
 Y. 
 
 —Lunatic— 
 
 uitrnAOE. 
 
 )f Dower. See 
 227. 
 
 Sec Jenldtu, 
 Co., 4 0. R. 
 
 t] 
 
 endanta l>eing 
 ill this case as 
 ipaiiy " while 
 iral Insurance 
 See .SVfiM V, 
 C. l». 685. 
 
 11 the names of 
 leron JJ. such 
 (1 to on the ar- 
 Per Hagarty, 
 ent should be 
 I >v lliijh Sriiool 
 4 of the United 
 ml Glenijarry, 
 he. Towiinhip of 
 liM and In the 
 Hoard and the 
 
 453 
 
 MORTGAGE. 
 
 454 
 
 of Wll- 
 4(J0 
 
 Munh-ipal Corporation of the Townahi/) of 
 Haiiishitrij in the County of Dundu 43 Q. B 
 
 Tiiu deed to the dcfe. dimt company described 
 it by its original name of the P. H. L. & B. R, 
 Co.. w'iieii ill fact its name had been changed : — 
 Held, a auliicient descriptio pcrsoniu, to enable 
 the company to take, though it might not be 
 sullicient to sue in. Grand Junction It, W. Co. 
 V. Midland 11. W. Co. 7 A. R. (iSl. 
 
 MISREPRESENTATION. 
 
 Six FkAUD A.NU MisKErRESEXTATION. 
 
 MISTAKE. 
 
 1, In Dekds and Other Writinos, 453. 
 
 1. li'fctlfijinij Mistakt in Deeds — See 
 Deed. 
 
 II. Miscellaneous Cases, 453. 
 
 III. In Assess.ment Rolls and Voters 
 
 Lists— .SVf.' P.vrliamentauy Elec- 
 tions. 
 
 IV. Mistaken Boundaries —See Limita- 
 
 tion OF Actions and Suit.^. 
 
 v. In Surveys — See Survey. 
 
 I. In Deeds and Other Writings. 
 
 The premises iiitemled to be conveyed by a 
 deed wore described therein as ISO acres of the 
 east halves of two lots, " commencing at the 
 front e;i!it halves of said lots, takinji the full 
 breadth of each half ivspoctively, and runi;ing 
 northwards, so far as retiiiired to make ninety 
 acres of each cast half lot :"-lIeld, that " north- 
 wanls' might be rejected, being evidently a mis- 
 take for "westward." Ferjuiou v. Freeman, 27 
 Chy. 211. 
 
 Erroneous description of lands in wills. See 
 Re ('„l/u>,h'in, 8 P. 11. 474 ; //,lthy v. U'it/cinxon, 
 28 Chy. 550. 
 
 Mistake in comi)utation of amount duo on 
 mortgage. See Stark v. Shepherd, 21) Chy. 310. 
 
 Life assurance ellected for ?!1,000 only and 
 policy issued l)y mistake for §2.000. See The 
 Mm Life In.i. Co. v. Brodie, 5 S. C. R. 1. 
 
 Held, per Moss, C. J. A., tliat the policy of in- 
 surance in this cast' supplieil internal evidence 
 of a mutual mistake against which a Court of 
 Equity would if necessary relieve. U'ri()ht v. 
 The Sun Mutual Life Ins. Co., 5 A. U. 218. 
 
 Error in date in deed of transfer. See Piloii 
 v. liruuet, 5 S. C. U. 318. 
 
 Sale of .Securities — Error in Schedule. See 
 The It(<d Hitiite Inre^tnient Co. v. The Metropo- 
 lUaii Buildimj Societi/, 3 O. R. 47(5. 
 
 II. Mlscellaneous Cases. 
 
 Paymentof money into Court to c -editof wrong 
 «au8ii. See Johnston v. Johnston, P. R. 230. 
 
 Delivery by carrier at wrong destination. See 
 Monteith v The Merchants' Despatch and Trans- 
 portation Co., 1 O. R. 47 ; 9 A. R. 282. 
 
 Non-compliance with ii condition in an insur- 
 ance policy to put in the proof within 30 days. 
 See Rollins v. The Victoria Mutual Fire Ins. Co., 
 6 A. R. 427. 
 
 In statement and return of Deputy Returning 
 officer. See Cameron v. Clucas, S) P. R. 405. 
 
 MONEY, 
 I. Interest — Ste Interest of Money. 
 II. In ve.st.ment — ^'te Investment okMoney. 
 III. In CotTRT— See Infant— Payment. 
 
 MONEY HAD AND RECEIVED. 
 
 See Oicston v. The Grand Trunk R. W. Co., 28 
 Chy. 428, 431. 
 
 MONEY LENT; 
 
 Where money is lent to be repaid when the 
 borrower is able, his ability may be shewn by a 
 slight aiuount.of evidence, such as is open to pub- 
 lic ol)servation, of a nourishing condition of 
 his ali'airs, and it is not necessary to shew that 
 tlio borrower is in a position to discharge the 
 debt witliout incouvenienco. Re Ross, 29 Chy. 
 385. 
 
 MORTGAGE. 
 I. Contracts of Mortg.vge. 
 
 1. Generallji, 456. 
 
 2. Frawhilent—See FRAUDULENT Con- 
 
 veyances. 
 
 3. Of I'lvlures — See Fixtures. 
 
 4. Of Goods— See BiLLS OF SALE AND 
 
 Chattel Morth.vges. 
 
 5. Of Ships— See Ships. 
 
 II. Reoistkation of— .Vce Registry Laws. 
 III., Payment, Merger and Discuarqe. 
 
 1. Payment, 45(5. 
 
 2. Merijer if Mortyaije Debt, 457. 
 
 3. Dischanje and Certificate, 458. 
 Rights and Liabilities of Parties and 
 
 THOSE CLAI.MINO UNDER THEM. 
 
 1. Mortijayee in Possession, 459. 
 
 2. liiiiht of Mortgagee to Maintain Ac- 
 tions, 4(50. 
 
 3. Riijhls and TAaliiUties of Purclmsers of 
 Eipnty of Redemption, 4(50. 
 
 4. Recovery of the Mortgage Money. 
 
 (a) When an Action ivill lie, 4151. 
 
 (b) Interest, 461. 
 
 (c) Dy Distiess—SeeDistfiEas. 
 
 IV 
 
465 
 
 MORTGAGE. 
 
 456 
 
 457 
 
 
 a-. 
 
 ti 
 
 5. /^'.'///i /o GwuiiHj Crops, 4G2. 
 
 G. Morlijiiiii (■ piirchuxltiij (tt Sale of Moft- 
 <l<iijid I'nmUi'x, 4(52. 
 
 7. .S'«/f' oj Eijiiiti/ of liedi'mpt'ton uuihr 
 
 Ejirtilloii, 41)2. 
 
 8. Doii'cr in Mort(,i'iii<'d lAinih — Sue 
 
 ])(J\VKK. 
 
 9. Iiisiirona: hi/ or for MorlijU'jee — lilu^d 
 
 of Suhroi/dtiOH — Sf'C iNSfUA.NCE, 
 
 10. Ak (iif'icleil 1)1/ Mechanics Liens — See 
 
 LiKN. 
 
 11. Bar rid hi/ Timi — Sec LIMITATION OF 
 
 AtTIKNS AND SCIT.S. 
 
 V. A.s.su;n.mknt and Tran.sfee, 462. 
 
 VI. SeVKHAI. MORTGAUEfS. 
 
 1. I'riorit;/, 46"). 
 
 2. Consolidation, 465. 
 
 3. Ot/ier Cases, 466. 
 
 VII. Sale undeii Fowek of Sai-e. 
 
 1. Xotice, 467. 
 
 2. Costs, 46S. 
 
 3. Ot/icr Cases, 400. 
 
 VIII. Redemi'tion of MouroAOE.->. 
 
 1. 117(0 Entitled to lledeeni, 46'J. 
 
 2. Terms of I'edemption, 470. 
 
 3. Costs, 470. 
 
 IX. roUECLOSUUE. 
 
 1. mil 
 
 (») Service of — Sec Practice. 
 
 2. Parties. 
 
 (a) Creditors, 470. 
 
 (1.) Wife, 471. 
 
 (c) Addinij Parties, 471. 
 
 3. Pinal Order and Decree, 471. 
 
 4. Upeniny Poreclositre, 471. 
 
 5. Other Cases, 471. 
 X. Sale. 
 
 1. When it will he Directed, 473. 
 
 2. Parties, 473. 
 
 3. /Jecrei; 473. 
 
 4. Costs, 473. 
 
 5. (///((■/• Cases, 473. 
 
 6. Conduct of iSale—See Sale of Land 
 
 BY Okuek of the Cocut. 
 
 XL Proceedings in Mortgage Suit.s. 
 
 1. Takinij Accounts, 474. 
 
 2. A nnndm'int of Statement of Claim, A"! A. 
 
 3. Costs, 475. 
 
 4. Other Cases, 47(i. 
 
 XII. MiMCELLANEOUH CasES, 476. 
 XIII. MoRroAOE.S TO IJtTILDINO SOCIETIES AND 
 
 Loan CoxirANiEs— 6'tt Building 
 S0CIETIE.S. 
 
 XIV. RECriFYINO AND V.iliYING Mour(iA(.E,x 
 
 —See Deed. 
 XV. Kjectment by Mortgagees— iSVf E.ie( r- 
 
 MENT. 
 
 XVI. Sale OF Land Suiuect to Morfgace— 
 See Sale of Land. 
 
 I. Contracts of Mortgage. 
 1. Generally. 
 
 Qnivn:, whuthera conveyaiiceabsoluto in fnvin, 
 thnugli a moitgiij^'o in fa''t, ...uiius witliin thu Act 
 11 (!«(). H. c. li>, s il.so as to aiitlioiizc the 
 niortgagiio to give uotioo to n.T.nve an attoniiuunt 
 froniatenant. McLennanx. Itannnm, 31C.J'.'-'10. 
 
 Tlic I'L'latiou of landlord and tenant may l)e 
 created by proper word.s between mortgagee and 
 mortgagor for the bona fide purpose of furtlier 
 securing tlie debt, without being eitlier a fraiiil 
 upon ereditors or an evasion of tlie Ciiattel Mort- 
 gage Aet. Trust and Loan Co. \. Lairrason, <! al. 
 6 A. 1!. L'SI). 
 
 Tiie K. S. O. c. 25, s. 26, declares that any 
 mortgage or lien created by tiie nominee ot tlie 
 Crown on lands for which tliu patent has not is- 
 sued, shall in law and ecjuity have the same 
 force and etl'ect, and no (pther, as if letters pa- 
 tent had before the execution of such in.stni- 
 ment, been issued in favour of the grautoi- :— 
 Held, that under this provision a mortgagor and 
 mortgagee had all the rights and lial)ilitiis as 
 between tlii.nselve.s that tiiey would iiave liad, 
 had the freeliold been actually vested in tlie 
 mortgagor. II atson v. Lindsmj, 27 (-'hy. 2.M) ; (J 
 A. Jl. liO!). 
 
 J. and 1;., living at P., had dealings extind- 
 ingover several years witii U. who lived at K., 
 and borrowed money from him from time to time. 
 To secure the money borrowed they executed a 
 mortgage to D., purporting to be for .'?4,00(), iiut 
 really intended as security foi- ^^ hatcver siiould 
 be duo to them from time to time on the loan 
 accfuint. On taking tlie account in the Master's 
 othce some years afterwards, and after .1. ami 1!. 
 had made an assignineiit in iiisolvem-y. it ap- 
 peared that shortly after executing tiiis inort- 
 gage, and liefore So niucli a.s .S4,(H)0 had liceii 
 advanced liy l>.,.J.aiid H. dic«- on I ». for .'.'I."!!))): - 
 Held that, under tlusc; circumstances, the pie- 
 suinption tliat !>. owed J. and I!, the SL.'tW 
 drawn for, was rebutted, the draft being the 
 natural moile in wiiicli J. and Jf. would iirocuve 
 an advance on the security <if the mortgage to 
 I). It appeared, also, that during the pendency 
 of these transactions I), gave J. and Ji. a niurt- 
 gage, liehl by him, to collect, and tliat .1. and K. 
 collected what was due on this mortgage, aiul re- 
 tained the same. Held tliat the money so ccdlect- 
 ed and retained was covered by the mortgage 
 from J. and R. to 1). Court v. Uolliind et iil. 4 
 0. R., Chy. I). 688. 
 
 Contracts by Infants. See Pohi/v. The Ciiii- 
 add Peniiiinenl Loan and SarinysSocieli/ 4 (•. K. 
 38, p. 335. 
 
 III. Payment, Merger, and Disc'HAR(iK. 
 
 1, Payment. 
 
 II., being seized in fee of certain liiiids, mort- 
 gaged them to ^V., and subscijueutly sold the 
 
 
 
45G 
 
 I M0UT(iA(,EK 
 S — iSVf E.IKcT- 
 
 MuKrOv\i;ii — 
 
 AdK. 
 
 oliitc ill form, 
 
 vitliin tliu Act 
 
 uitliorizc! the 
 
 an attoniiiiunt 
 
 /«,:uc.r.2io. 
 
 ciiiint limy l)e 
 iiKntgagei^ and 
 Kisi' of fuitlier 
 eitlit'i' a fraud 
 Chattel Mdit- 
 ((»•/•« .s'o», ,1 al. 
 
 dares that any 
 oiiiiiiee ot the 
 eiit lias not is- 
 lavo the siiiie 
 i if letters \>a- 
 sueli instill- 
 die grantor :— 
 iii()itga;,'()r and 
 cl liai)ilitir.s as 
 mill have had, 
 vested in the 
 
 7 chy. •>:.:\; 6 
 
 liiig.s extend- 
 lo lived at K., 
 Ill time til time, 
 hey executed a 
 f.iV 84,0(H), but 
 latever sliould 
 no on the loan 
 ill the M^istcr's 
 lifter J. audi!. 
 )lveiii'y, it ap- 
 ting tills iiiurt- 
 Mlt)0 had heen 
 ). for .■,;). "ilK):- 
 aiiees. t!ie pre- 
 1!. the-Sl-'W 
 raft lieiiig the 
 would ]iii)Lure 
 lie iiiortgau'" to 
 ,' the jieiidiiiuy 
 anil It. a niurt- 
 that -Land K. 
 ii tgage, ami re- 
 iiiiey si) t'idloct- 
 the iiiiirt,:^age 
 'lolltiml (I 1(1. 4 
 
 '<!/ V. Tliv Ciiit- 
 fiuciilij 4 ( t. 1!. 
 
 DiSCIIARilK. 
 
 n lands, inort- 
 outly bsld the 
 
 4.17 
 
 :\rORTGAGE. 
 
 458 
 
 minerals thereon, with the right to mine, to the 
 defendant. The mortgage being overdue, W. 
 recovered juil^riiient in ('jectnient and is.siieil a 
 wiit of hal). fac. poss. I lefondant hearing of 
 this wrote to H. that the niorti^agc niu.st he 
 paid, and that he must, give him an order to pay 
 it and deduct the money ao paid from the pur- 
 fliaso mouej' of the minerals, 'riiereupon a 
 memorandum was drawn up that tliu deleiidaiit 
 should either pay the mortgage in full disehargo 
 thereof, or take an assignment of it as a suhse- 
 ipient enciuntirance, for the purpose of saving 
 tlie interest of ilefenilaut, as also of said H. in 
 the said lands, the amount so paid to be credited 
 and allowed to defenilant upon his purchase 
 money of the minerals. Defendant i>aiil the 
 amonnt due on the mortgage, though his pur- 
 clriso money was not due to H. Afterwards H. 
 put the ])hunti(l' in possession of land to farm at 
 a rental, and the defendant having obtained an 
 assignment of the \V. mortgage and judgment, 
 evicted tiio plaintill'; — Hold, Armour, J., dissent- 
 ing tiiat the piyment by defendant was in 
 eject a payment by H., whereby the mortgage 
 was satislicd, and as that pr.ymeiit was made lor 
 the pur|iose of saving H.'s interest as well as his 
 own, the defendunt would not have lieen justi- 
 fied in ci|nity in enforcing the mortgage against 
 H., or his assignee, the X)laintiff ; and that the 
 plaintill' was entitled to damages for the tres- 
 p;iss. Per Annoiir, J. The defendant was en- 
 titled either to ]iay the mortgage in discharge 
 li.cveof, or to take an assignment of it as a snli- 
 sequent eneunilirancer ; he did the latter ; 
 tliougli ho was to have lieen credited with this 
 payment, his own payment to H. was not due, 
 and the credit had not in fact been made ; and 
 he therefore had the right to enforce the mort- 
 gage. The plaintitr claimed .?500. The jury 
 assessed the damages at ^J.'^'OO, and the learneil 
 Judge at the trial amended the statement of the 
 claim accordingly. Hold that the damages were 
 excessive, and a new trial was gr.inted. liohln- 
 WHV. //((//, 1 O. !{., Q. H. 1). '.'()6. 
 
 See yiirth of Scullnnd Mortijaije Co., \\ Udell, 
 4Gl^>. H. r>ll,'p. 2r>7. 
 
 mortgage debt, but the defendant still romnined 
 lialjle therefor, the pipiity of redemption having 
 been released only to enable the plaintiflfs more 
 conveniently to sell. Per Wilson, C. J. The 
 accountability for the suridiis of the proceeds of 
 the sale, showed the true nature of the trans- 
 action. Per O.sler, J. The merger of the mort- 
 gage was a (piestion of intention, such intention 
 heing a matter of fact. Per ( Jalt, J. When the 
 plaintifTs accepted from defendant a release of 
 his erjuity of redemption witlmut any reference 
 to or mention of the mortgage debt, they there- 
 by discharged the defendant and the charge be- 
 came merged. Xorili of Scotland Muvtijuge Co. v. 
 an-miui., :U C. P. 340. 
 
 Theownerof land-, created two mortgages there- 
 on, and sub.se(|Ueiitly released his eipiity to the 
 mortgagee who waseiititled to priority, who after- 
 wards l)ouglit the interest of the mortgagor at 
 sherilF's sale, and .suliseijiieiitly sold the premises 
 to several purchasers, who bought witlumt no- 
 tice of the second mortgage : — Held, that this 
 had not the elFect of merging the mortgagee's 
 I liai'ge in the equity of reilemption ; and that in 
 a proceeding by parties claiming under the second 
 mortgage, tiieir only right was to redeem as 
 ]niisne incumbrancers, and that the purchasers 
 were entitled to an enquiry as to the enhanced 
 value of the property by reason of their improve- 
 ments. Widxw V. Vnuilii.^eii — WiUn v. Ar/fr- 
 )iMii, 27 Chy. 477. 
 
 2. Mcvijcr of Mortijdijfi Drht. 
 
 In response to a notice from the plaintills, the 
 mortgagees, of an instalment being due on the 
 defendant's mortgage, the defendant's solicitor 
 wrote that as defendant was unaltle to pay the 
 claim, or redeem, and to save plaintiffs' costs, he 
 would give them a conveyance of his equity of 
 redemption. T)ie plaintill'a thereupon conferred 
 with H., their local agent and valuator, who ad- 
 vised them to take a deed, which they agreed to 
 do, Imt only to enable them to sell the property, 
 and defendant was to have any surplus over the 
 mortgage debt, but that they would not re- 
 Icjise him from his covenant. An ordinary 
 deed in fee simple was thereupon sent to 
 defendant, and executed by him and his wife, 
 H. at the time informing him that he was to 
 have such surplus ; and also then informed him 
 as well as after the transaction had been closed 
 wrote to him, that the plaintiffs wouhl send a 
 discharge, though without any authority from 
 the plaintiffs to (lo so ; and defendant stated that 
 he signed on this understanding : — Hold, ((ialt, 
 J., dissenting) that there was no merger of the 
 
 3. DUcharije and Certificate. 
 
 A certificate of discharge of mortgage is of no 
 effect to revest the legal estate until registered. 
 NVhere a ccrtiticate of discharge was lost beforo 
 registration : — Held, that the disclaimer of the 
 mortgagees, who wore trustees, and the consent 
 of their solicitors was not sutlicient to enable 
 the Court to declare the petitioner entitled to 
 the legal estate in fee simple. 7iV Moore, 8 P. 
 K. 471.— Proudfoot. 
 
 A mortgagor or other party entitled to the 
 eijuity of reiiemption has a right to obtain at his 
 own expense from the mortgagee a rectmveyance 
 r)f the mortgage premises, including a covenant 
 against incumbrances. Ho is not(d)liged to ac- 
 cept the simple discharge of mortgage prescribed 
 by the statute. McLenmiu v. McLean, 27 Chy. 54. 
 
 The purchaser of a mortgaged estate paid the 
 amount due on the mortgage to the mortgagee, 
 who executed a statutory ilischarge of the in- 
 eumbranee, which recited that the money duo 
 upon the mortgage had been paid by the mort- 
 gagor, and refused either to sign a discharge 
 stating correctly the name of the plaintiff as the 
 person paying, or to execute a reconveyance in 
 his favour, the plaintiff offering to furnish satis- 
 factory proof, if tlesired, that ho was the owner 
 of the equity of redemption. The cimrt, on a bill 
 liled for that purpose, ordered the mortgagee to 
 execute the reconveyance, and pay the costs of 
 the suit. //'. 
 
 A mortgagee executed a statutory discharge 
 which was incorrectly dated, and his agent m 
 good faith and in order to make the instrument 
 conform to the intention of the mortgagee altered 
 the date, which alteration was, under the cir- 
 cumstances, immaterial, and, as altered, the do- 
 cument stated correctly what was intended by 
 
459 
 
 MORTCiAOE. 
 
 4C0 
 
 
 
 
 the partiuH to it. UiidiT these circnnistniiccs a 
 liilliliipcacliiiigtlie validity of suclKliHclii'i'Ke Wiis 
 <li8iiiiHHe(l,witli udsts. S<ii/I<h v. /j/o/c/z/JSCIiy. 10. 
 
 The rej^iHtiiition of a ecrtiticate given l)y the 
 survivor r)f Ki'Vcriil iiiditgajitus, ii|)iiii jmyiiiiiit 
 ill money of the niortj^aj;e ileiit, eilectimily dis- 
 ohai'geH the iiioi t^nfic.and revests the legid estate. 
 0. fxeeiited two iiinitgiiges in favour of M. I>. 
 and her two sisters, for moneys ad valued liy 
 thciii, which were duly registered, lie after- 
 wanlH sold jiortioiis of the land to |). and K,, 
 giving them his eovenaiit against ineiindnanets. 
 iSuhHe<|uently, and after llie death of the two 
 sisters, ('. jiroenred M. II. to exec ute discharges 
 of these mortgages, giving her instead a mort- 
 gage on the otiiei- lands of Hm]de value, hy way 
 of seeuiity, and alter the registration ot these 
 (liseharges lie sold the rest of the land comiirised 
 ill the oiiginal mortgages to others. 'I hese |iur- 
 eiiaseis took in good faith for value, having no 
 actual notice of the two original mortgages. (.'. 
 aftei wards induced M. 15. to aeeejit in lieu «)f 
 this mortgagee which she disehai'ge<l, a mortgage 
 n|pon otiu r lands w hich (noved almost worthless. 
 Ui;on the death of M. !>., the jiersoiial rei)resen- 
 tatives of herself and sisters tiled a hill seeking 
 to charge the land cmhraeed in the original 
 moitgages with the innoiint remaining due there- 
 on ;— lield, reveiung the decree of I'.lake, \. ('., 
 ('2« t'hy. !l!»,)that the discharges ly Al. 15. were 
 valid and itleetual, so far as the jiurehasers, alter 
 they had liein rej.ihteied, were edmerned, as 
 when they received their conveyances and j aid 
 the eonside ration therefor, a discharge hy M. B., 
 the jiersoii entitled hy law to receive the nu-ney 
 was registered, and they were not honnd to eii- 
 i|uire whetlier jiayment in mcney had heen ac- 
 tually n.ade ; l/ut that the dischaiges were in- 
 ojerative in favoui' of ('. and 1>. and K., whr) 
 iiiirehased from him with notice <if the mortgage 
 tiy renfon of the Kgistiy, to extinguish the in- 
 terest of the deeeand sisters other than M. 15., 
 r.s she lonld only discharge the moitgages \\\ on 
 )a}iiui:t of the delt, nnd not hy the aeceiit;ince 
 ot another tecurity. JJilkc v. JJoikjUih tt al, .'i 
 A. 1!. 63. 
 
 Although under 1!. 8. 0. c. ICO, s. (», a moit- 
 ^age in fee sinjjile hy a tenant in tail vests 
 the fee simple in the nioitgagie, the regis- 
 tration of a liischarge of f^nch mortgage, in ac- 
 cordance with K. N. O. c. Ill, s. (i7, iloes notie- 
 eouvey the estate to the tenant in tail haired of 
 the entail ; it operates only as a ree()nveynnee of 
 the original estate of the moitgagor. Luvlar v. 
 Law/or, ef al, G A. 1!. 312. Reversed hy the 
 Supreme Court. 
 
 See Triixl and Loan Cowpaity v. (Jalkujhtr, 8 
 P. R. 97. p. 463. 
 
 IV. RlCHTS AND LlAIilLITIKS OF PaRTIE.S AKD 
 THOSE CLAIMIK(t t'M)EK TllEM. 
 
 1. Mortiiaijci' ill PosnegnioH. 
 
 As hetween moitgngor and moitgagee, there 
 Ib nothing to jrevent the mortgagee taKiiig pos- 
 ■ession at a fair and rensonahle rent agreed upon 
 bstween them. In such a ease the mortgagee is 
 not a "mortgagee in possession" in the technical 
 Benee of the teim. In such a ease, however, a 
 ■ubsequeiit iucunihraucer — prior to tiietirstniort- 
 gagee, entering into possession — is not bound by 
 such an arraiigemeut ; and the master may charge 
 
 the first mortgagee with a fair occupation rent 
 although it exceeds that stipulated for. ('ouH 
 v. llullaiid, '.'!) Chy. lit. 
 
 .See Cronn v. C/iuwhcrlin, 27 Chy. 551, y. 2(;,'i. 
 
 2. /'iijlit of Moiii/ii'irf to Maiiita'ni Actlaiin. 
 
 Although a mortgagee has no right to coni- 
 jilaiii of any sulisc(|uent dealing with the est.ite 
 liy the: mortgagor, there is nothing to pi'evcnt 
 him, if his claim is left unsatisfied Ironi suing oii 
 the covenant in the mortgage, and proceedinjr to 
 a sale under execution or applying to this eoiiit 
 to remove any sulise(|ueiit fraudulent cfinvey- 
 ance which interferes with the risali/.ation of his 
 elaini. J'arr v. MiniUjuinirii, 27 Chy. 521. 
 
 (jiua're whether the appellant whose only in- 
 terest was that of mortgagee of S's interest, had 
 any locus standi to liriiig a suit for partition or to 
 appeal without his co-plaiiitifl'. Liijiliiiile v. .SVn- 
 VK'ii, I'l al., H A. U. r).")7. 
 
 3. li'iijhU and LiahilitwHof riindiaxcrn of K<iml\j 
 Jinlcitqiltun. 
 
 ^Vhcn a mortgagor who has covenanted for 
 payment of the mortgage debt, sells hi.s eriuity of 
 redemjiticiii subject to such mortgage, he beci.nits 
 surety of the purchaser for the jiayment of such 
 debt, and if the same is allowed to run into de- 
 fault he will be entitled to call upon his assiiiiue 
 to pay such debt. CamjilnH v. Ituhhixun, 27 (liy. 
 634. 
 
 G., the owner of real estate executed a n ort- 
 gage to the plaintill, and suljs((|iuiitly cKulida 
 seeoiid mortgage in favour of one II., which lie 
 transferred to the plaintifb Aftei wards (I. nn'it- 
 ga'gcd the same lands to it. and |). : and siil se- 
 <]iiciitly assigned the equity of r((lem]itioii to 
 tlitm, in which assignment the mortgage to the 
 jilaintitl' and that to It. and 1). were recited, lut 
 the inteiniediiite (jne to II. was la t, though tlic 
 amount stated as due to the iilaiiitill was alcut 
 the sum secured by both iiiortgak.es held hy 
 him. iJefault having been made, a I ill was tiled 
 against (i. npcn his covenants and against his 
 ussigneesR. and 1)., as the < VMiers of the eijuity 
 o:iedemption and entitled to reibe in :— held, 
 t.iat under these circumstances (;. having claiiiietl 
 Nueh relief by his answer, was entitled as against 
 his co-defendants to an order for them to jay 
 such sum us might be found iXxm the plaintitf 
 under his securities, and the suit having been 
 rendered nceessary by reason of the elefault of 
 R. and D. in not paying the ])laintiti', they were 
 also bound to pay Ci. his costs, lb. 
 
 B. owned lots 1) and E, anel mortgaged them. 
 The mortgagee (J.) assigned the security and 
 afterwards bought up the eepiity of redemption. 
 V. the plaintiff, Bubscquently purchased lot 1>, 
 for which he paid the full value and obtained a 
 conveyance containing statutoty covenants for 
 title and poBsession. J. 8ubse(|Uently sold lot 
 E. to a bona tide purchaser, who conveyed tei the 
 appellant :- Held, aitirm.ng the judgment of the 
 court below (28 Chy. 3f (i), that J", was entitled 
 to be indemnified out ot' lot E to the full extent 
 of the value thereof against the umenint due on the 
 mortgage. Pierce v. t'atiaran ei al., 7 A. R. 187. 
 
 See Chamberlain v. Sorais, 28 Chy, 404, p. 4()Uv 
 
J GO 
 
 il)ati(in rent 
 il for. Court 
 
 '. r,r,\, 1., 2(1.-,. 
 
 lilt Aclhiux, 
 
 i^'lit t(» r(pni- 
 til the tstiite 
 
 to provtiit 
 I'liiii KUiiii; nil 
 
 oct'ciliii^r to 
 
 to tllis folllt 
 I lent fOiiv(;y- 
 i/:itioii ot hig 
 ly. iV.'l. 
 
 host; only in- 
 interest, liad 
 ;irtitioii or to 
 tidiilt V. .S('«- 
 
 ■•crK (if L'l/iiihj 
 
 ivcniintcil for 
 s lii.s e(|uity uf 
 o, he lieci.nits 
 piient of Mich 
 o run into de- 
 n his a.«si;jiiue 
 iiisuii, 1!7 < liy. 
 
 eiited a n ort- 
 Intly erciittda 
 
 J I., whiih III- 
 laid.s (I. nmrt- 
 >. ; and siil se- 
 '((lein|itioM to 
 )rtj.aj;e to tlic 
 re reeittd, Imt 
 
 t, thon^li tlic 
 till wan 111 (Ut 
 ;a^is held liy 
 a Kill \MiK tildl 
 id a^aiiii^t liis 
 ( of the lenity 
 le.ni :-lle!.l, 
 ia\ ing ehiinicil 
 tlid UHiigiiiiist 
 
 tliuii to Jiiy 
 c; the plaintitf 
 t having hecn 
 the defuiilt of 
 ;ifl', tliey were 
 
 tgaged theiii. 
 seenrity and 
 f redemption, 
 jhased lot !>, 
 nd olitninid a 
 covtiiaiitH for 
 ntly sold lot 
 nveyed to tiie 
 dginent of the 
 , was entitled 
 he full extent 
 iiitilueontlie 
 .,7 A. H. If>7. 
 
 . 404, p. 4(U>v 
 
 461 
 
 MOIITGAGE. 
 
 4G: 
 
 4> Recovery of the Mortgage. Monei/. 
 (a) When an Action wilt lie. 
 
 Hell], that a mortgage wliieli contains an au- 
 kiiowledgnient of receipt of the niortgai^o money, 
 but no covenant for repayment of nioney, iIoch 
 not of itself ail'ord conclusive evidence of a delit, 
 81) that the niortgngeu or his assigns can niain- 
 tiiin nn action for its recovery. Jn this ease it 
 was shewn tiiat no nioney was ever advanced hy 
 the mortgagee to defendant, the mortgagor, Imt 
 that the mortgage was given for a deht due liy 
 defendant to one C, who in consideration of 
 getting it agreed to relieve defendant from all 
 ]ier8onaI lialiility ; and the plaintiil's, asHignees 
 of the mortgage, were held not entitled to nt- 
 cover, t^uwre, whether sec. 1, sub-s. 4, and sec. 
 2 of the Vendors and Purchasers' Act, H. S. (). 
 c. 10!), apply to such an action as this, or only 
 to actions where the title to lanil is in question. 
 The Loiidvti Loan Co. v. Smyth, 32 C. 1'. MO. 
 
 A writ was in the hands of thesherifTatthesuit 
 of the plaintiil's against I., at the time of the ilis- 
 niixsiil of a hill filed by I. to redeem the plaintillH, 
 and at the time of the sale toM., which ilisniissal 
 had the eflcctof a decreeof foreclosureagainst I:.- 
 Ilehi, notM-ithstanding that the jilaintitrs might 
 proceed to recover their debt against 1., they be- 
 ing in a position to reconvey the mortgaged pre- 
 uiiscs. Hani: of Toronto v. Jrvin, 28 C'hy. 3'J7. 
 
 (b) Interest. 
 
 A mortgage was to be void on payment o* 
 il2,000, at eight percent., in live years from date 
 thereof, with "interest in meantime half-yearly 
 on, &c., in each and every year of said term of 
 five years ; and also upon jiayment of intenst at 
 and alter the rate aforesaid upon all such inter- 
 est nioney as shall be permitted or sufl'ered to be 
 in arrear and unpaid after any of those days mid 
 times hereinbefore limited and appointed for 
 ]iayment thereof :" — Held, that the contiiut be- 
 tween the parties was simply one for payment of 
 interest on any interest which might be iiiarixiir 
 k'fore, but not after, the expiry of the mortgage. 
 Witmn V. Cuwibdl, 8 I'. K. \'A.- lilake. 
 
 Interest on a mortgage was payable half-yearly 
 in advance on the 1st of April and October. The 
 mortL'.njjec filed a bill for sale, and the Hegistrar 
 on taltiiig the account (in the latter part ot Janu- 
 ary) fixed a day in July following for payment, 
 and allowed the ])laintiiT interest to that date, 
 hut refubcd to allow him the half year's interest 
 payable in advance on the 1st of April. Trust 
 (iiid L(.an Co. v. Kirk; 81: R. 203.- Holmstead, 
 Ueyi»lrur. — I'roudfoot. 
 
 Where no rate of interest is fixed by a mort- 
 gage to be paid after maturity, the rate of in- 
 terest mentioned iu the mortgage is chargeable 
 prinift facie, but the person seeking to reduce it 
 may shew that it is more than the ordinary value 
 of money. Simonton v. Graham, 8 P. ]{. 49.'i. — 
 I'.lake. 
 
 Where no interest is reserved by u mortgage 
 none is recoverable until after tlie day appointed 
 for payment of the principal. JMd v. Wilxon, 
 1» P. K. lee.— Hohrstcttd, liegittrur. 
 
 Qua>re, as to the effect of a proviso in a mort- 
 gage for payment of the amount "secured with- 
 out interest if paid when due." lb. 
 
 I Where a mort(,'nge to socuro the rc-paymcnt 
 I of money with interest at 10 per cent, jirovided 
 j that, "shoiihl default be made in payiiieiit of 
 I the principal money or interest, or any part 
 I thereof respectively then the amoiint so overdue 
 : and unpaid to bear interest at the rate of 20 
 ; per cent, per annum until paid":— Held tliesaid 
 ' proviso was not invalid, or relievable against on 
 
 the ground of forfeiture, Duinicy v. /'(inull, 2 
 
 (). H., Chy. 1>.S2. 
 
 A parol agreement to pay a higher rate of in- 
 terest than that reserveil in the mortgage, is in- 
 ed'ectual to charge the land. 'I'otteii v. Watson, 
 17 thy. 2.S,"), and .Matsoii v. Swift, Ti Jur. fl4r). 
 followed, y^' llniiMiin — Jloimton v. Jloustun, 2 
 O. I!., fhy. D. 84. 
 
 5, liiglit to (.iroiriiig Crajtn. 
 
 I'pou default made in payment of ii mortgage 
 the mortgagee has the uiHiuestioiiiible right to 
 take possession of the property in the state in 
 which it then is as to crops, and to hold the 
 wlicde as his seenrity. Therefore, when land 
 was sold in July under a decree made in a mort- 
 gage suit, without any reservation of crops; - 
 lleld, that the purchaser took all that tiie mort- 
 gagee could beiielicially hold possession of, and 
 was entitled to the unsecured growing crops, 
 mature and iiiiniatiire. McDoimU v. I'hiji/ien, I 
 O. 11., Chy. 1). IV.i. 
 
 G, Mortijufjec jiurclmvii;/ <il Sale of Mortgugul 
 PreininM. 
 
 V. created three several mortgages on separ- 
 ate portions of his estate, in all about 140 acres, 
 i estimated as worth i:<ll, (1(1(1, subject to iiicum- 
 ! braiices jiiNininting to .•;<.'{,.')( 10, and interest. One 
 j of the mortgages was in favour of defendant M., 
 I who 8iil)sei|Ueiitly a(i|uircd the interests of the 
 other two mortgagees. Alter the creation of 
 these mortgages 1'. executed a deed of tliist of 
 the whole property in order to defeat a claim of 
 title set ii|i to len acres by one .S. llefault was 
 made in payment ot M.'s mortgage, mIio iiistitut- 
 I ed proceedings at law and recovered judgment, 
 I on wiiieli he sued out execution and under it the 
 sherill (after the defendant M. had so acijuired 
 the other mortgages) proceedecl to a sale of the 
 property, which he otTered in three distinct par- 
 cels, and M. bid for and became the inirchaser 
 of all at sums amounting in the wholi^ to $20. 
 The cestui i|ue trust thereiiiion tiled a bill to re- 
 deem, alleging that the sale to M. had been at a 
 gross undervalue, and jiraying to have the same 
 set aside ; the court however refused the relief 
 asked with costs, being of o]iiiiion that the deed 
 of trust was fraudulent, and that the price real- 
 ised was large considering that it was a sheritl's 
 sale. Parr v. iMonlgwieri/, 27 Chy. 521. 
 
 See also nicker v. nicin; 7 A. R. 282. 
 
 7. .S'<(/r of E'luilii •>/ /{eileinjition um/ir Exe- 
 cution. 
 
 See Parry. Montgomery, 27 Chy. 521, fiupra. 
 
 V. AssiriNMKNT AND TllAN'SIEU. 
 
 The plaintitt's the Tiust and Loan Commuy, 
 advanced .$2,000 on certain land, on condition 
 
i-;;} 
 
 MOllTOACiK. 
 
 464 
 
 '■>»■ 
 "« 
 
 ,7- 
 
 a-' 
 
 that tlirct' tTicuiiilirimccH n;;;iinst it hIujuM be d'w- 
 i'li;irp:il ont I'f tlic (irocdcdH of their loan iiml 
 otherwiso. 'I'liu tirst aiiii tliiril fiicmiiln'.iiii'i'rH 
 \vi'l\: Jiiid oil', iiiiii till! foniii'i' cxfciituil ii statu- 
 tory ili.ioliar^'c of tliiMf iiiortnaK'". wliii.'h was 
 iiovi'r rrnisti'iuil. Siilisi'iiuuiitiy tiii! secoml en- 
 ciiniliranour, who hail not lii'fii paiil, i:laiiiiiiil iiri- 
 ority over tin; iilaintitl's. 'I'iiey tin'ii nlitaiiiiiil iiii 
 nsMi;.'mii<'iit of till! first iiiort>,'a;<i! : — llclil, that 
 till' ilisi'liargi! of iiio!ti,'iiL;(! not liaviiiK hocii regis- 
 tereil, oiierati'il only as a ri'iMjipt, ami tlu! ainoiint 
 jiaiil the tirst emiiuiliranier lieiiii,' jiaiil liy the 
 Trust anil l-o.in ( 'o., and not liy the original inort 
 ji;a;,'or, that the ])laiiititrs wereentitleil to in-ioiity 
 to the extent of the first niort),'a;,'e. Tniil iiinl 
 Jjwdi Co. v. (lolliKjIii r, 8 i'. K. !I7. — Taylor, 
 MiiMrr. 
 
 Where inortL,Mt.'i!s or other eviilenees of doht 
 are assii.'ned iis eolliteiiil security liy a dehtorto 
 his creditor, the latter is limind ti use due dili- 
 gence in enforeiiit,' jiMyiiieiit thereof ; and if 
 through liis default or laches the nionej' secured 
 thcrcliy is lost, it will he charged agiiinst the 
 creditor, ami deducted from his demand. SiidhiI 
 V. Jh/tliti/iiiirf, '27 C'hy. ■'");{(!. (Atfiriiieil on Ap- 
 Jieal, .SOth dune, I8S0.) 
 
 A mortgagor paid olF a mortgage after tlie 
 mortgagee had assigned it, and also a Hecond 
 mortgage ihtained liy fraud from the same 
 mortgagor to the iiIaintilFs, who did not )>roi;uie 
 the niortgagorto join in the assigmiient of either, 
 or notify him theri!iif : — Held, that the assignee 
 toolc the moitgagcs siiliject to the eiiuities In!- 
 tween the original parties thereto ; and as the 
 riginal mortgagee could nut, if iil.iintiff, have re- 
 covered upon till! one mortgag ■ liecause paid, nor 
 upon the other, liecause invalid, so neither could 
 his assignee. iVilxnii v. A' ///»■, 28 (,'hy. 101. 
 
 'I'he (uiginal owner of land created ii mortgage 
 thereon in favour of one M. and died witliout 
 
 \?: 
 
 ■edceming, and the eijuity of redem]ition in the 
 premi.ses descended to ( ". K. his heir-at-law, who 
 with her hushand V. V. joined in a conveyance 
 thereof to trustees charged with the suiiport 
 and inaiiitenance of the plaintill's, suliject to 
 which and the mortgage in favour of M. tlie pre- 
 mises were limited to I'. F. in fee, who suiiso- 
 quently in Septeiidier, 187">, out of W. F. 's 
 moneys] laid the ainouutdiuion .M'smoi'tgage, liut 
 which was not actu.ally discharged. In Decem- 
 ber following I'. F. sold to \V. h\, conveyed to 
 to him the ei]uity of redemption and procured 
 M. to assign his mortgage and conv(!y to him 
 the legal estate. In .March, 1877, W. F. luort- 
 {^aged the land to a loan company but did not 
 assign the M. mortgage, and siilisi!(juently the 
 plaintiffs filed a bill seeking to ha e the charge 
 for their maintenance enforced against the mort- 
 gage estate : — Held, (reversing the finding of the 
 blaster at Hamilton) that the loanconi|iany were, 
 under the eircuinstanees, entitled to jiriority 
 over the plaintitrs to the extent of the amount 
 secured by M's mortgage. Fratrr v. (t'lniii, '2{) 
 Chy. 13. 
 
 A mortgagor and mortgagee dealt togoth'.'r for 
 some years without liaving liad any .settlement 
 of accounts, and the former became insolvent. 
 At the date of the insolvency there existed a 
 right of set-oflf, in favour of the mortgagor for 
 the balance due him on their general dealings ; — 
 Held, affirming the finding of the master, that 
 
 Hueh a right of Hot-off pawsed to the official as- 
 signee of the mortgagor, and that a transferee nf 
 the security took it suliject to the eipiity. ('in)rt 
 V. //ol/'iwi, 'ilM.'hy. I!»; 
 
 The jilaintilTs negotiated for the jinrcbaHc 
 from tlie defendants of certain mortgage securi- 
 ties and other assets of the defendants on tlni 
 basis of an eight i>er cent, investment, and a 
 sehedule was ))re]iarcd by th" deteinlants' man- 
 ager exhibiting each security, amnngst wliieli 
 there was stated to be a nioitgage hy F. for 
 f5l,7()0 ; whereas in fiict there was no such mort- 
 gage, but instead two mort^.iges on tiie instil- 
 ment principle, which as an eight per cent, iii- 
 vcstment were worth only .Sli.H'^d, making a de- 
 ficiency of .'ii'780. This was c iiise 1 by F. before 
 j the schedule was drawn up, inliinating his inteii 
 tion of )>aying olf the mintgiiges, .';i4,7(H), Iniing 
 tile .amount agreed upon between F. and defeii- 
 d.mts, which he would have to ji.iy and which 
 dcfenilants' manager theiefore, in good faith, pii! 
 into the schedule. Siibscipwiitly and while the 
 schedule was in the iilaintifl's' sulicitor's hands 
 to prepirc and settle the deeil of assignment, V. 
 I decided not to ]iay off the mortgages, but to go 
 on with the regular p.iyineiit ol same, and de- 
 fendants' niaii.iger then corrceteil the scheilule by 
 I inserting the two nmrtg.age.s. There was a ilif- 
 fcrcnci- between t!ie oliintiirs and defendants us 
 to the value of the securities, .and tinally a lump 
 sum was agreed on .•uhI [laid by plaintilFs, and 
 the assignment executed : Held, by Osier, J., 
 that, on the (ividcnce, set out in the reiiort, the 
 I ]ilaintifrs' solicitor nni it be ilecmcd to have liail 
 I notice of the emu iii'! .iltciatioo in the schedule 
 before the execution of the eonvcy.iiice or coni- 
 I pletion of the transaction, .and t.h;it this was 
 [notice to the plaintiffs: -Scmlile, per Osier, .1., 
 that, although the evidence s!iewed that there 
 j was no intention to deceive on the part of the 
 . defendants' manager, still there was such a mis- 
 I statement of a nriteri.il f.iet, as, but for the notice 
 j would render tlii' defend ints lia!ile for the dain- 
 ' age Hustained thereby. 7'/(c /{ml /<J.<t(ilf Inr'd- 
 I iii'-iil Cdiii/iiiii'/ v. 7'//c \fiiri)jmlittin /iiiililimj So- 
 
 tri'ii/, .SO. i;.'. r. i». !>. 47(>. 
 
 i The defendants in the deed of .assignment 
 
 [ <!ovciianted that the mortgages were good and 
 
 valid charges on the land.s, and that tlie defend- 
 
 j ants had not done or permitted any .act, Ac, 
 
 whereby the mortgages li.id become released or 
 
 discharged in jiart or in entirety. It a]))>careil 
 
 I that certain of the lands comprised in these mort- 
 
 I gages li.ad been sold for taxes : Held, ]ier Osier, 
 
 .1., that the covenant w.is not ultra vires of the 
 
 company or the directors; ;ind that the (ilaintitfa 
 
 were entitled thereunder to recover the value 
 
 of the lands so sold. III. 
 
 Arrears of taxes due on the mortgageil lands 
 were p.aid by the pl.aiiititrs. The taxes were due 
 by the mortgagors ; there w.as no covenant in the 
 assignment ag.ainst incumbrances, and no evi- 
 i deuce of any reijnest by defendants to pay them:— 
 I Held, that the plaintiffs wire not entitled to re- 
 cover the amounts so paid. lb. 
 
 The plaintiffs also claimed to recover a sum 
 of money paid to the defendants' aiilicitors for 
 costs due them: — Held, under the circumsfcin- 
 ces not recoverable, as it WiW a volnntary pay- 
 ment, /'/. 
 
404 
 
 •aimfuroo of 
 lity. ('i)iir/ 
 
 IturcliiiHc 
 .■ij;<! Hciniii- 
 nt'H nil till' 
 lit, iiiiil :i 
 lilts' mini- 
 i-.'^t wliicli 
 iiy K. fi'i- 
 mic'li miirt 
 Mic iiiNt.ll- 
 r i;oiit. Ill- 
 
 ikill^r (I llc- 
 
 y V. I.i.f„r,. 
 ; his inti'ii 
 7(M», iH-iiif; 
 
 Illlcl (ll'fcll 
 
 mil wliiitli 
 1 I'.iitli, put 
 wliilft the 
 iir'.s liiiiuls 
 
 !,'IIIIIOIlt, V. 
 '. I)llt til !,'() 
 U', <lllll (Ic- 
 
 ti'lKidiili' liy 
 • w.ia u clif. 
 fi'iiilants :i.s 
 illy a liiiii|i 
 intiflH, anil 
 i OmIlt, J,, 
 ivpnrt, tin; 
 () liavc had 
 
 10 HcllCillllt.' 
 
 R'o or cniii- 
 t this w.is 
 r O.sli-r. J., 
 that there 
 jiart of the 
 HiKrli a mis- 
 r till! luitic'o 
 II the (lani- 
 </<(/(' liivM- 
 iiili/iiiij So- 
 
 assigiiinent 
 I! good and 
 the defend- 
 y act, Ae., 
 released or 
 !t a|i|>cared 
 tht!se niort- 
 I, jier Osier, 
 vires of the 
 i(! [ilaintitrs 
 the value 
 
 aged lands 
 js were due 
 nant in the 
 id no evi- 
 iay them:— 
 iitled tu ru- 
 
 vor a 8uin 
 lieitors for 
 ireumstan- 
 iitary pay- 
 
 4i; 
 
 MORTr!A(;E. 
 
 4r.8 
 
 (111 i))|icil to tlio Divisionil Poiirt ; — Tlidd, as 
 to tlin claim for the S7S0, there could lie no re- 
 covery, for tint the triieeonstriietioii of tln^ tran- 
 saotion was that the lump sum was to cover all 
 delieieiicics in value as also errors and mistakes, 
 at all events to not an unns'isonalile amount, 
 which ."^TSO could not lie siid to be ; and when!, 
 as here, there was no fraud, coni'ealinent, or inis- 
 n']ii'escntation. In other respects the judgment 
 was alllrmeil. Ih. 
 
 VI. SkVKHAL MoRTOVdES. 
 
 1 . Prior'i/y, 
 
 Tlicro were two mortguges rt-gistered against 
 property, the first mortgagees were pressing the 
 iMorl',' Igor for piyment, and ulmut to sellout 
 liis ell ittcis, and A. at the reipiest of the mort- 
 piyiir, and to stop such sale, mlvanced 81.000 to 
 tlieiii, and took a mortgage to sen re himself 
 friiiii fill! mort^^agor, lint with no understanding 
 with the lirst eneiiinhranecrs : — Held, that A., 
 tlioiii,'li ho thus reduced thi! lirst mortgage by 
 ?l,0(ll), and HO lietterod the position .>f the second 
 mortgagee liy that amount, eoiil 1 not claim 
 priority for his advance over the second mort- 
 uauei'. /iii/iiriiil. L'Kin iiwl. Iiii'i'itmi'iit (!o. v. 
 O'Siil'ir'in, 8 P. K. I(i2. — Spragge. 
 
 ('. lieing the cfpiitiMe owner of the land eon- 
 tract d 1)V writing fregistured) t) sell to the de- 
 fendant oil l,^tll of Fidiriiiry. 1877. Part of the 
 piireli;is ■ money was piid down. <'. olttained an 
 order on I7tli .\pril, 1.S7S, vesting the land in 
 liim -there were two mort',':v4cs on the r.!gisti'y j 
 jiriiir to oti<( in favour of t!iu loin ('ompany. On 
 the I7tli May the defendant gave an oriler on ! 
 tliu loan coin|)aiiy to pay the proceeds of a loan 
 to their local a;ent, who was inforineil by one! 
 J., n solicitor w!io hail control of the two prior 
 miirt','a.'os, that tiiey wera paid off and that he 
 would ir t them discharged, 'riierenpoii the | 
 iigeiit paid C'.. the balance of his nii])aid imrcliase i 
 money, and C. on the 'i.'ith May, I87S, conveyed i 
 t) the defenilant. The loan coinpiny's mort- i 
 page was dated l.'itli May, and registered the 25th 
 May :- Held, on appeal from the master (atlirm- ' 
 iiig his report) that the loan company could not 
 stand in i'.'a place and claim priority in respect ' 
 of his lie I for unpaid pur diase in iney over the ] 
 jiriiir niortg.igc's, following Imperial L. & I. Co. 
 V. (('.Sullivan, a P. R. 102. WaL^oii v. DiHOsfi; ! 
 t!.S Chy. 178. 
 
 The loan company's mortgage contained this 
 clause, " that in the event of the mrmey hereby ' 
 a Ivaneed, or any part thereof, being ajipliedto the 
 piyment of any charge or iiicumlirance, the com- I 
 piny shall stand in the jiosition and bo entitled I 
 til all the equities of the person or p;Tsons so ]>aid ! 
 off" :— Hold, tli.at this provision could not affoct ' 
 prior mortgigeos who were no parties to it ; and ' 
 Qiiiure, whether it would apply to the discharge ' 
 of unpaid purchase money, which does not con- i 
 stitiite a charge or incumbrance in tho proper 
 meaning of those terms. Jb. 
 
 See FritMcr v. Oiinii, 2!) Chy. 1,1, p. 4(13 ; 
 TriMt ami Loan Co. v. (InUajhvr, 8 P. U. 97, p. 403. 
 
 2. Consolidation. 
 The rnle that a mortgagee shall not be redeem- 
 «u in respect of oiia mortgage, without being 
 30 
 
 redeemed also as to another mortgage (irt^.at 'd by 
 the same mortgagor, applies ;is well in a suit to 
 frU'celose ,as to redeem. In such a (visn the pro- 
 ))erty embraced in onemortgig' rcili/ed more 
 tliaii sudicieiit to discharge it. The plaiiitilF, an 
 execution creditor of thi; mortgagor, obtiiiiied a 
 security on the lands eoiii|iri..ed in siiidi mort- 
 gage which was re!,'istcred after it, but without 
 notice thereof. On a s.ale of the lands i-nibraced 
 in another mortgag.) a loss w is sust.iine 1 by the 
 mortgagee : —Held, (I) that the defend int. tins 
 mortijagee, had not the right as .against th'i plain- 
 tiir, to eonsiilidate his niortgiges, and in ike good 
 the loss on the one out of the surplus on the other 
 sale, the p ilicy of the Uegistry ki'.i being to give 
 no elFect to hidden eipiities. (2) That by t iking a 
 mortgage, and thus giving time to the mortgagor, 
 the plaintiir w.is a iiolder of his iinrtgigj for 
 v.iluo. J<,liinl<>ii\. I{'id,'l'.)i'\\y. -I'XA. 
 
 See also Milla- v. liro'on, 3 O. II. 210. 
 
 .'{. (Hhi-r CiiKifi. 
 
 Several parcels of land were embraced in one 
 mortga:,'!!. SiHue jicntly the m )rtgi:,'or further 
 mortgage I soin! of them to the pliintilTs with 
 the iisu il in irtgigor's e )veniiit.4. H i af t .'rwards 
 conveyed another pii'cel to .S., who, when he 
 took his eonveyiiiiu;, was not aware of tlie pliin- 
 tilTs' mortgige, b it it was registered .igiinst the 
 parcels e.'nUr ice 1 in it, though not agiimt the 
 other pircels: — Held, (1) That tho plaintilfs 
 were entitled to rejuiro as between them .and S. 
 that the parcel conveyed to tho latter should be 
 r.'H irtod to for satisf:iction of the prior mort- 
 gage bjforo recourse should be li id to tho parcels 
 embraced in the pliintilfs' mortgige. (2) That 
 the rogistr.ition of the prior iiiirtgig-; agiinst the 
 p.ireel bought by ,S. wis ii itice to him of tho 
 right of persons who [lurchasel other parcels be- 
 fore he pureliased to throw tho in ort.; ago upon 
 his parcel, and that S. w is .alFe ;te I with notice 
 of the plaintilFs' mortgage, and the right it con- 
 ferred. Clark V. /{ojurt, 27 ('hy. 450. 
 
 The (irst of three mortgagees having tiled n liill 
 for sale, tiie otiier two proved tiieir (d aims in tho 
 suit. N'o one releemed by tho day .ap|)oiiitoil, 
 but a liual order for s ile was not taken out, bo- 
 cause one v., whi had purchase I ttu o piity of 
 rodeinption, was negotiating with S., the third 
 mortgagee. During these negotiations V. cut and 
 sold a large '[uintity of the timber on tho land 
 to (i., whereuptn S. lilod a bill praying [nyinont 
 by (J., of tho prioo of the timber, which hid not 
 yet been piidover:— Held, alfirming tho Mister's 
 ruling, thit tlie first mortgigeo was entitled to 
 it. SroU V. Voi'mnj, H P. R. 33'!. -Proudfoot. 
 
 On 4th April, 1S(>3, M. and his wife (to bar 
 dower) mortgaged tho lands in «|uestioii to (J. 
 On 21st M ly, 18()7, M.. being in iiisilvent cir- 
 ciimstincrfs, convoyed the said lands to W. to 
 tho use of .M.'a wife. In l8iH, and IS72 M. exe- 
 cuted two other mortgages to C. for tho debt 
 originally secured by the tirst mortgage. Oa 
 20tli December, 187-1, M. and his wife (to bar 
 dower) mortgaged tho said lands to 0. All the 
 above dejils were registered abiiut tho time of 
 their respective executions. On (ttli M irch, 1876, 
 (t. assigned to the plaintilF, but the deed was not 
 registered. On 7th .lune, 1870, M. and his wife 
 jointly mnrtgaged the same lands to the plaintitT 
 by deed registered 15th July, 1876. On 2l8t 
 
467 
 
 SKHlTliAOE. 
 
 408 
 
 t:: 
 
 
 May, 1874, W. and M, iiiid liiH wife ni-niititl iiml ' 
 r<liii)-(il till' Hiiiil Iniiilh to ( '. until |ii,>ni('nt ot 
 tlif iiioi't^'ii^'c of IS7'.', ami iii |iiijin< lit thi'iiof to 
 tlu! iiHc ipf M. in fit'. 'I'liin, lidwj'vt r, wiih nut i 
 rc^iHtcnil till 4tli Aii^nht, IhhI. 'I lie |iliiintifri 
 liaii no notices that tlic convcynnci' I'loni M. of 
 VJHt May, \Hi~, vaH invaliil, nor ot tlic convty- < 
 nncc of 'JItit May, IS74, Imt lie lia<l noticu of tlii' j 
 tlii'ct' ni<>rt>.'a)^t'H to ('. ami tliat ('. clainKcl the | 
 vliolc (l( lit af.'ainht tlic liiml, anil alt-n that tin ro | 
 uaH a ili'lt'ct in C.'h title nntlir the Kiconil uml 
 tliinl nioitfiajiiH:— IlchI, tliiit thu jilaintiir, luinj; 
 liouml liy Hiic'h notice, could not nviiil hiniKcll of 
 any dcf«ct in the title arininf.' fii in M. cxtcutiiij; 
 thu latter two inort^ii^cN to ('., altlion^h still 
 lii'inj; tlic (>\t ncr ol the c<|iii(y oi ridi ni]iti< n, that 
 tlie I'laintill aei|niiiil Iiih title with knowkilge 
 that I', claiinctl a dell re] restnttd l>y tlie three 
 inortpa^cH, and took IiIn niortf^a^e, suhjeet to 
 such claim hy (':— Held, also, that the dccil fioni 
 M. of L'lht May, l('()7, waw (illitr volni.tary i r a 
 fraiiduldit jin fcrence, ami in tither case void ; 
 and that the fact that M.'h wife joincil to 1 ar ' 
 dowel-, in the two hibt nioi tf.'a^;<s to ('. after she 
 hatl aiijiarently l)ec( me the owni r of the c(|iiity 
 (if riilunjition, ctinKtitntcd her a jiirty to the' 
 accounting' wliich took jilace with ('. in rcsjiect j 
 to thu continuing delit, and hound Iter in her I 
 character of a9Hij;nee of the efjuity of redeni]itir>u 
 if she could lie so considered. Kihnirtt.i v. 
 Marrhtomt ,il., HO. !{., Chy. I>. 4'J8. 
 
 See C'zovAi V. Bialyd iil., 8 I'.li. \Ht, ji. 47,'}. 
 
 notice, after default for three nuiiitliH, and tli.it 
 
 the |iur( lias<i' would take a g I title ; and in 
 
 any e\ent, a notice nerved at any time after ile- 
 fault wax sullicicnt, and the liiort^'af;eeH witu 
 not hound to wait until tlclaiilt had lieeii maiio 
 forthiee niontliH to give hiicIi notice; in other 
 words, that the nioiitir,s notice and tlu! three 
 uioiiIIih' default might he coiicurrtnt. (iranl v. 
 Ciiiiiila Ll/r ,l.«. ('i>., '2!» t'hy. --VWI. 
 
 'I III' rule of law whicli rttiuireB a, mortgagee 
 selling und( r a j'owt r of sale in his moitgnge to 
 olisene the teiliiH of such jnwer, \h also a; | li- 
 cahle to sales hy a trustee or iiiiasi tnisti c adiiig 
 under a iiower ;- the |iiiwer must he lollowi d : 
 iiiid till' rule a|>|<liiH with ei|Ual forte to salts hy 
 an assignee of an insolvent istate, uiidc r the Act 
 of lti(i!t, see. -17, who in such cascN acts uutlcr a 
 statiitciy jiower authorizing a sale, "liutoiily 
 after adveitisinient thereof for a iierinii of two 
 nioliths." An assigme |iioeiecUd to sell the liiiiilg 
 of the insolvent w ithout giving notice of such 
 intended sale " for a iicriod of two months " as 
 liriserilied hy tlie Act, no sanction of the credi- 
 tors thereto liaving lieen givi ii ;— Held, a gnod 
 ohjectioii to tl.e title hy a vendee of the | ill chaser 
 nt such bale. //( >r «/(/;•(•/.< v. Cvok; lilt Chy. 'M',i, 
 
 V'll. SaLK UNDF.n I'OWEK OK JSaLK. 
 
 1. A'oticc. 
 
 A 1 ower of sale in a moitgage roriuirid notice 
 upon default to he given to the mortgagor, "liis 
 heirs, executors, or administrators," or left for 
 him or them at his or their latt or usual jilaco 
 of nhode, heforc exercising the i <iwer :— Held, 
 tliat a notice which ■waseervnl ujioii the wid('W, 
 who was also tlie administratrix of the deceased 
 mortgagor, nud addressed to lier as such widow, 
 w as insuflicii nt, heeause not served also ujion the 
 heir at-luw of the uioitgagor, although only an 
 infant aheut thice yeais of age, and that the 
 sale under the j;ow er w as tlierefore void. JJartli It 
 V. JtiU, 28 ( hy. 140. 
 
 The notice stated only that unless payment 
 was made preeeidiiigs W( uld he instituted to ob- 
 tain 1 essission :— Held, also, that en this ground 
 the notice was insuflicient to suppoit asale. lb. 
 
 In proceeding to impeach a conveyance exe- 
 cuted in purtuance of such a sale the jiurcliaser, 
 or those claiming under him, must sliew a due 
 exercise of the pow er of sale ; the onus of im- 
 peaching it is not nprn the party alleging the 
 invalidity of the deed. Ih. 
 
 One of the sti]ulai:ei « < f a moilg.'ife was, that 
 "interest should he pajaMehidfjtai!y('n * * 
 Provided that the moilg<;^<<h, in default of ]iay- 
 ment lor three m< nihs, n:ay enter on and lease 
 or sell the said laiuls without notice: "And the 
 D'.oitgagecB coven lit wiih the nioitgagois that 
 no calc or lease of the said lands shall he made 
 or granted by them until such time as oueuionth's 
 notiee in writii g shall ha\e been given to the 
 mortgagors." Held (pti I'n iidiod, V. C), that 
 thu luoitgagees could sell ut any time, without 
 
 2. Cwlx. 
 
 The costs of jiroceediiigs to obtain a siile of 
 mortgaged jiicniiscs are such a charge ii|miii the 
 estate as will entitle the mortgagee to proceed to 
 asale of the property in the event ot non-pay- 
 ment. TliuiiijiMOH V. flobmiii, 28 Chy. 35. 
 
 AVhere a first mortgagee sells under tin; jiowcr 
 of sale contained in his mortgage, a sul>se<|Uciit 
 mortgagee is entitled to an order to tax the lust 
 mortgagee's costs of exercising the power of sale, 
 j such costs to be taxed as between solicitor and 
 I client. ViV t'ri mr ami Miiii; 8 1'. 1!. .")(i. — |)al- 
 ton, <J. C. 
 
 I First mortgagees sold under a power in their 
 
 I mortgage, and jiaitl their solicitors' costs of sale. 
 
 j A subscijuent encumbrancer obtained from the 
 
 referee, on motion, an order for the taxation of 
 
 the mortgagees' costs. This order was reversed 
 
 I on apiieal, on the ground that the mortgagees 
 
 ! could not tax the bill, and thu mortgagor stood in 
 
 their jilace. An objection that the order shmild 
 
 have been obtained on petition, n.it iioticu,wasdi3- 
 
 regarded. ./iV MvDiiiialil, MtDtiimltl >v Miiv«h, 
 
 8 r. U. 88.— .Stephens, li<J\i-i(.—Viu\xAim>t. 
 
 First mnrtg.igees sold umbr power ot sale, and 
 paid their attorneys' costs. A second mortgagee 
 was hehl not to be entitled to the right of taxing 
 these costs. Itc McDonald, McDonald & Marsh, 
 8 Y. li. 88, ajiproved. He Croiiijii, Ki w ii: /Jilts 
 Alluni, >/.•<, 8 1'. 1!. 372.— Full court. 
 
 ■\Vhere F., a solicitor, on behalf of liLs client, 
 served ii notice of sale under a mortgage made 
 pursuant to the Act respecting short forms, U. 
 S. <)., e. 104, upon what he believed, after dili- 
 gent enijuiry, was the last jdaco of residence of 
 the mortgagor in this province, an<l did so on 
 the instructions of his client, who was fully ad- 
 vised as to the said en(|uiries ami their result, 
 and bonil tiile deeming such service siiflicinnt : — 
 Held, that F. was entitled, ns against his client, 
 to tax the costs of the proceedings under the 
 power of sale, although it appearcil the mort- 
 
•108 
 
 409 
 
 MOUTGAOE. 
 
 470 
 
 M, IIMll tllllt 
 
 tic ; mill ill 
 
 III! Ill'tf T ill'. 
 
 [ii^vvn wcro 
 
 llCI'll lllilllu 
 
 •! ; ill cllicr 
 
 I till! thri'u 
 
 (I'niiil V. 
 
 iii(iitf,';ij.ic 
 iii'it;4iij;r to 
 
 iil.-ii n| I li- 
 iiHtt (• 111 liiiK 
 (• l<i|li)«ii| : 
 
 to MikM liy 
 til r the Act 
 lets iiiitltr IV 
 
 " Imt (iiily 
 ill II I I if two 
 :ll tlicliiiiiU 
 
 CV of Mich 
 llll>llt)lM " 118 
 
 if the crcili- 
 Iclil, a guild 
 
 If l-lllcllilS(.T 
 
 :!» « liy. ;i()3. 
 
 ill .'I NItIc of 
 
 {(' ii|iiiti the 
 II ])iini.(;il to 
 ol linii-iiay- 
 y. 'A-K 
 
 ■r tlitr jKiwcr 
 I suliniM|miit 
 t:ix tlu: I list 
 lowt'i' of umIc, 
 aolii'itiir mid 
 l{. .W.— hal- 
 
 wcr ill tlit'ir 
 L'lwts <if s:ilo. 
 Ill from tlie 
 u taxutiiiii of 
 v;is revL'rsi.d 
 luortgiigffS 
 a^or Rtooil in 
 orilur ahdiilil 
 iticc'.wusilis- 
 '/(/ <i' J/arith, 
 iiudfoot. 
 
 r ot sale, and 
 111 niortgnj^co 
 jilt of taxing 
 dd & ^larsh, 
 K) w it' Hi Us 
 
 if liis client, 
 irtgage made 
 irt forms, IJ. 
 d, after dili- 
 rcsideiice of 
 id did so on 
 ivas fully ad- 
 tlieir result, 
 Hiitliciont : — 
 st his client, 
 3(8 under the 
 d the mort- 
 
 gagor really waH at i\w tiino of kui'Ii Nervifc, 
 within tlilH i>rovinue. K. S. O. c. 1(14, in'riiiitM 
 aulistitutioiial survicu lit the ruttideiico, though 
 tlio mortgagor may liu within thu juriHiliutioii. 
 But uvun if such is not the |iro|ii'r construction 
 of the statute, it is iv matter ho doulitful that 
 the solicitor who lioiia tide acted on that view of 
 the statute should not lose his costs of so eU'ect- 
 iiig service. O' Donohoc \ . Wltitly, '2i).\{.,V\\y. 
 I). 424. 
 
 X Olliir Caxrs. 
 
 In a bill filed by a mortgagor against his huh, 
 a liiihler nt the sale by another of the defen- 
 dants, a loan coiii|iaiiy, to which bill the com- 
 pany and one H. were also defendants, it was nl- 
 leged that it had been agreed between the son 
 and If. that in consideration of the son's securing 
 to li. a debt of the plniutiir, H. would advance 
 the deposit necessary to enable the sou to buy 
 the land nt the sale ; that the son should attend 
 aud buy in the land, which he accordingly did ; 
 that ill conseiiuence of I!, 's refusal to make the 
 promised advance, the son was unable to carry 
 out tile sale; that the bidding of the son deterred 
 others present from bidding, and that U. atter- 
 wards privately bought the land at a great under- 
 value to the loss of the plaiiitifl' : — lleld, on dc- 
 uuirier, that the bill sulliciently, though inartili- 
 cially, alleged that by reason of H.'s agreement 
 uuil refusal to make the ailvance agreed upon, 
 he had oecnsioned an abortive sale, and prolitcil 
 thereby tu the loss and damage of the plaintilf. 
 Vawpiun v. Urnvkiuruliji-, 'J8 C'liy. 'JOI. 
 
 Qua'rc, whether the claim of a second mort- 
 gagee for the surplus proceeds of the sale after 
 satisfaction of the prior mortgage isa purely nioney 
 demand. (I'ru'ii v. llamUlon I'rofklvnt Lonn Co., 
 31 C. P. 574. 
 
 answer set up tliat they wi'i'c liable only as 
 sureties for the defendant S, All iiartiis inter- 
 ested were rejiri si'iited in the suit, and no one 
 olijecting thereto, a reference was giaiitiil at thi! 
 instance of li, 's executors, in order that tliey 
 might establish the fact of suri'tyshi|i, in wliich 
 case they would lie entitled to the same relief as 
 was granted in CainplKll /•. Itohinsnii, 27 <'liy. 
 C.'M. Ih. 
 
 One of the mortgagor's surviving chililnn died 
 an infant and intestate lieforc this suit : Meld, 
 I that this suit, which was for redemption, eiuired 
 I to the lielielit of those entitled to her share, in- 
 cludinghcr motheras tenant for lifi; under II.S.< >. 
 c. 10.'), s. 27 : -Held, also, the imither should lie 
 directed to lie made a [larty in the master's ollico 
 uiitler (i. (). 438, since the present case did not 
 fall illKler the Judicature Act, Seiiible, if uiiih'r 
 tliat.\ jt the same might have been directed under 
 lUile 8!». FuiiIiIm v. //„ri>f'r it .(/.. 2 O. 1!., Chy. 
 IJ. 405. Iteversedon aiipeal. .Sec!) A. It. 5U7. 
 
 See also A". Dhoh, 27 Chy. 1!)9. 
 
 2. Ti'fiii'i of J{iili'iii/iliu)i. 
 
 The Cfjuity of redemption is aii entire whole, 
 and so long as the right of redeni)itioii exi.sts in 
 any portion of the estate, o • in any of the per- 
 sons entitled to it, it enures I'ar the beiietit of all, 
 and the mortgagee must submit to redemption 
 as to the whole mortgage. FiiitliU v. //nrjirr I't 
 (iL, 2 O. I!., Chy. I). 405. Keverscd, oil appeal. 
 See 9 A. U. 5.'J7. 
 
 VIII. EkDEMI'TION OI- MoKTliAOE.S. 
 1, H'lio eiifitli'd to liedeem. 
 
 Four persons joined in executing a mortgage 
 of their Joint estate, and subsciiueiitly the inter- 
 I'st of three of them was sold under executions 
 at law:— Held, that the sale was inoperative; 
 that the owner of the eijuity of redenqition had 
 a right to redc^eni ; and that the purchaser at 
 sheritl "s sale, w ho was also the mortgagee, having 
 gone into possession of the mortgage estate, was 
 hound to account for the rents and profits. 
 Vronn v. t'humberUn, 27 Chy. 551. 
 
 In a suit to redeem, the plaintifF was n judg- 
 ment creditor with execution in the hands of the 
 slipritf against the lands of the defendant S., 
 which lands were subject to a mortgage tu L., 
 whose executors were also defendants. At the 
 hearing the court (Spragge, C'.,) declared the 
 plaintiU' entitled to the same relief as ujion a bill 
 by a puisne incumbrancer against a prior mort- 
 gagee and the mortgagor, and that notwithstand- 
 ing K. 8. O. c. 40, 8. 5, inasmuch as he could not 
 establish his right in the county court in which 
 he had recovered his judgment, so as to obtain 
 as efl'cctual a remedy as that sought in the re- 
 demption suit, he might resort to ciiuity to obtain 
 relief. ChaniberUn v. Sovuig, 28 Chy. 404. 
 
 The executors ot B. were also liable upon the 
 judgmi nt recovered by the plaintiff, B. having 
 been a defendant in the action, and by their 
 
 3. CoHld. 
 
 Ill proceeding undera consent decree to redeem, 
 the defendant being in the position of a mort- 
 gagee brouglit in an account claiming .S!K)5 to lie 
 due, while the master found the balance to be 
 only 81.32: — Held, that as the defendant had 
 advanced his claim honestly, and under a rea- 
 sonable belief that the sum claimed was justly 
 due, he was entitled, notwithstanding the insig- 
 iiitlcant sum remaining unpaid, to the benelit of 
 the rule that a mortgagor coining to redeem is 
 liable for the costs of suit where a balance is 
 found in favour of the defendant. Litllr v. 
 Bniuhr, 28 Chy. I'Jl. 
 
 See lAchmdoii v. Wood, 27 Chy. 515, p. 159. 
 
 IX. t'OKECLOSCUE. 
 
 2. Parties. 
 (a) Creditors, 
 
 Where sureties for a debt gave to the creditor 
 a, second mortgage on land as an additional se- 
 curity, and foreclosure proceedings are taken by 
 the first mortgagee : — Held, that the creditor, 
 on being notified thereof, should either make 
 himself a party to the suit and prove his claim, 
 or notify the sureties to enable them to prove it 
 if they so desired ; but: — Held, that the evidence 
 in this case shewed that the sureties had notice, 
 at all events some three mouths before the day 
 of redemption, which was sullicient. Held, 
 also, that the fact of two co-debtors changing 
 their position so as to make one of them as be- 
 tween themselves a surety, would not affect the 
 creditor without his couseiit. Jones v. Dunbar 
 et al., 32 C. P. 13G. 
 
t71 
 
 :MOrvTCAGK. 
 
 473 
 
 f 
 
 0>) 'I';/'-. j 
 
 \Vlifro tlu' wife nf a iiiiiitg;i).'cir is a ])arty to ; 
 ainl Idiis Irt ildwiT l)y tlif mnitt-'iigu, she is not ' 
 iiiipniperly made a |iarty cleteiiilant to a bill lor ] 
 loioLlosiire uiulei- the iiioi t;.'a;je since the eoniiiig ' 
 into loree ot 4'J N'ict. e. "J'J. ISii'il'I'iinj uml Laan 
 A<«ic'iittiiin V. CiiixiriU, 8 1'. Jt. ''A, — Sjiragge. i 
 
 (c) Addiuij Paii'iiK. 
 
 In a fv>rc('losnre suit, after final jn(l;_'nient, an 
 onler was oi.taineil ex parte aiMing two jiarties I 
 as defendants, wlio had ])enilent,> lite and liefore ' 
 jnilgni.'nt hrcdnie interested in the ecpiity of \ 
 redeinjiti' ii, ami iliieeting tint they I'e hound ' 
 1)V tlio judgment onkss, witliin fourteen days, ; 
 ch( y should move against the order. i>n aiipli- i 
 cation liy the added defendants this order was ' 
 rex.inded ;,;iid Htld, that they sli luld not have 
 hecn Tnade iiavtii s aft.r judgment. Ahdl v. Pan; 
 ;» I'. 1!. .-(M.- jialton, Mast,,: I 
 
 3. Final (hili-r ami J>irr(''. 
 
 'Phis suit hceanie aliated between the date of 
 tliC ri'port and the tinie fixed by it for iiaynient 
 by subseijuei't eneundiraneers. On rin a]iiiliea- 
 tion for a linal onler for foreelosure, it was re- 
 fused, and ;i ni'W ilay was a))iioiiited. allowing 
 the enemnhiaiieers an a<lditioiial time for pay- 
 ment, e<)Hal to the time tlie suit reniaine I abated. 
 ]i:;l;/ar v. Wa;/, h I'. It. loS.-lilake. 
 
 A tin.-il order of foreclosure sIk uld reserve a 
 d;iy for inf,i\it defendants to shew cause. .Sprag'.'e 
 I'., w.is of ojiinion that the practice siiould lie 
 changt'il fur the sake of putting an eml to litiga- 
 tion, and to the e\il of having estates tied up 
 f<ir perhai)s many years, but refused to change the 
 practice in the present case. I.nin^'^n auil ('ana- 
 fUaii Loan ami A(/i nri/Cii. v. Eirvill, S VAX. 480. 
 
 4. 0/iiii!ii'j Pdvi'ldsiirr. 
 
 Where after foreclosure, the rights of i)ur" 
 chasers have inte."ve«tcd, any ei|uitalile claim 
 which the mortgagor viay have prcvi lusly had 
 to open tlie foreclosure, is, in this country at all 
 events, to ho considered forfeited. (.■amp))ell r. 
 Holyland, 1. K. ", t'h. D. 173 I'emarkeil npo!i, 
 and I'li.tt '•. Ashl. ridge, ]-2 I'hv. 10.') followed. 
 Tnitiii/ C'..//«;/.' v. //;// ,1 ul, '2 cJ.'ll., Chy. U.'MH. 
 Koversed on appeal. 
 
 On a motion to open a fcreclo.'^un the debt 
 and costs amounted to ab(u:c .Sll.flOO, and the 
 property was worth !*7,(K)0. The Master under 
 till! ciremnst.inces set out in the report refused 
 the motion, the plaintitf havini. been forbearing, 
 and the defendant negligent throughout. Miloi 
 v. Cawrn,,, '.) v. H. I'O'J. -M.dt m, Ma.<t,r. 
 
 Sec Joliuiilun V. Jalm.st.ju, 'J I'. It 'J.')'.), p. 472. 
 
 5. Oilier ( 'nnrs. 
 
 \Vliero a defendant by bill in a foreclosure suit 
 demanded a sale and ));iiil j»HO into conr,' as .a 
 de])osit : -Held, that although the (!osts ot the 
 sale woulil exeeeil *liat amount, the defendant 
 could not lie onler d to increase it, the amount 
 being fixed hv sc'.eilule S endorsed or the ollice 
 Copy ot tliebdl uinler Order 4'M. Cnisn v. C'lasf, 
 
 In ai: action of foreclosure upon a mortgage 
 which <'ontains a clause by which the i)rincipal 
 falls due upon default made in ji.iyini'Ht f'f ii'iy 
 instalment of interest, if the plaintill' claims the 
 benefit of the clause, and calls in ;he whole mort- 
 gage debt, he is bound by his election and mtist 
 ac-.'pt principal interest, and costs, whenever 
 tendered, altliough he does not pray for a per- 
 sonal order f(U' inunediate i)ayment. I )rummond 
 r. (luicUard, eiteil in (!reeu r. Adams, 'J Chy. 
 Chanib. 124. ovcrruleil. Criix'iv. Ilimil, 1 O. K., 
 Chy. 1)., .•{84 ; reversing S. C, 9 P. R. 111. 
 
 An action for foreclosure of a mortgage is gov- 
 erned by ltule78and no order allowing service is 
 necessary and on default of a])i(i;arance judgment 
 may be entereil on jira'cipe according to the for- 
 mer jiraetiee in chancery. (Iianiliivla'ni v. Arm- 
 MroHii, !l I'. K. 212. — Hoyd. 
 
 The decree declared that the defendant was a 
 trustee of the premises in (|iiestion for the plain- 
 tiff, riiil that the plaintiff was entitled to redeem 
 on p.'iyment of what the master should tind due, 
 within six .nonths after re])ort, ite., and in de- 
 fault of iiayment, the plaintiff was to be fore- 
 closed. The reiiort was dated 4th Mandi, 18S2. 
 ami apitoinccd 18th April, 1SS2, for jiayment. 
 The moiu'v was paid into the I'uMik of Commerce 
 on that d.'iy. Imt In- ' •■ to the credit of a 
 suit of Johnston v. A. .lohnston. On the 22iid 
 April, 18S2, the defendant's solii'itor, on the 
 usual aliidavitof non-payment and ccrtilieate of 
 baidv manager, obtained ,in order ex jiarte dis- 
 missing t!ie bill with csts. On the 2.")th Ajiril, 
 the defeinlant's scdicicor became aware tiiat the 
 nu.ney had been paid in to the credit of the 
 M-idng suit, but on the 20tli Ajiril, he had been 
 aware that the money was jiaid, tiiongh not 
 awari! of the exact nature of the mist die. On the 
 27th .\pril, the defendant sohl the ]iremi8e« :— 
 Held, tliat the defendant inust be considered 
 idciitificd \iith his snHcitor as to all tiie informa- 
 tion the solicitor had ; that the order made dis- 
 missing the liill, instead of foreclosing the plain- 
 tiff, and also tliem.istcr's r< port giving six weeks 
 insteail of six months for ])iynient as re(pnred by 
 tlu'di'cree. wereirn gul.irities, sullicientto notify 
 the purchaser of something unusual in the pro 
 cce<lings, ,ind therefore lat hecmild not rely on 
 the liii.d order disniirsing the liill alone : that 
 even if the order I'ad liec'ii for foreclosure, under 
 the facts of tilis case, it would be ,i proper exer- 
 cise of the <1i>*i'retion of thi nrt to open it up ; 
 
 .and that a suit comnienced by the iil.iintilf to set 
 aside the sail', did m>t estop him from olitaining 
 relief under the motion. Cunn '•. I'olile, lo 
 Chy. Ii."),">, distinguished. ,/,,hii.'inii v. .1, illusion, 
 1'. It. 2.".!> llalton, Mailn. I'roudfoot. 
 
 On motion ex parte for a diriHrtim: to the 
 jtcgistr.ar to insert in a pnrcipe judgment of 
 ■ foreclosure ill a mortgige suit, an order for im- 
 mediate p.iyrneiit of tin; amount due by the ilo- 
 ! fendant, under his (covenant, up to judgment, 
 ; (the Registrar to take the aci^ount, ) where a 
 i reference to the .M.asteras to subsequent encum- 
 brances was also sought :— Held, that the usual 
 eoui-Rc must be followed, anil that the defeinlaiit 
 ] should be ordered to pay the amount found duo 
 \ forthwith after the Master shall have made his 
 report. Xorlh nf Srotlavil ('iiiiinHait Mortrjaije 
 Co. V. Iftaril, 9 1*. H. ,^4(). -Boyd. 
 
 pro( 
 enti 
 ordi 
 stai 
 fvei 
 Sir! 
 
 Dii, 
 
 Sei 
 
 t> r. ]{. '':i.-Tavlor, J.'ii; 
 
 e (..zuirii 
 
 -I'roudfoiit. 
 
 p. 473. 
 
 k! V. /i.aly H ill., S P. I?. 146, 
 
472 
 
 MORTGAGE. 
 
 17-1 
 
 X. Sai.k. 
 I. Will II !l irilUir iJinrlnl. 
 
 Altlumgh 1>y tlio gi'iiunil nili! iiml uourstu of 
 imiuofiliiig ill inortgugi.' cii^'s llio iiu)ity;ij,'iir is 
 L'lititlfil to six nioiitli.s to luilueiii, )iuloio;i s;ilu is 
 onlert'tl, tlio (.'ourt will, uiuli'i' siu'cial circiiin- 
 gtiuifc's, din ft an iiuiiicMliati'Siiludf tlio iir(Pi)frty, 
 even as aj;aiiist tbc iiilaiit liuiis of the iiioi tyai^ipr. 
 Sirijt V. .)/;/(/(■/■, 'SI C'hy. "217. 
 
 See W'l'stirii ('iniiulu Limn dinl .Sarii'is <\i, v. ' 
 JJiiiiii, 1» r. J!. oST, p. '2:i(). I 
 
 •2. I'lirllr.^. 
 
 A niortgagec' lilt'il a liill for salo iiiaUin^' cer- 
 tain lit.n iiiildiis iiiiilfr tlie Act jiaitits ilcfcn- 
 (liuits, tliuruiii allu/ng that the work, l>y virtue 
 of whieli their liun.i i .ose, was conilialiuecl after 
 the registration nf h.ls iiioitu'.igc : Held that tiie 
 lieu holders f-hould have heeii made parties in 
 the master's otiiee after decree hy notice, and the 
 plaiiititl's costs of niaUinj,' thcindcfcmlaiits liy hill 
 were disallowed in revision of taxation. .Inrk.tun 
 V. IhiiiiiiKiinl if III., S V.W. loT. — 'J'hom, Taj:iii<j 
 Ogictr. 
 
 .3. Drrrn. 
 
 Altlioilj;h a decree of sale should ili'cct the 
 same to take place with the appioliatiui of the 
 Master, the omission of such dirce./iou is no 
 ^'rouiid for moving to set aside the sah^ under 
 the deciee, where the same really took place 
 with such apiJiohatioii, e'en in a ease where 
 infants are interested. liii/:< r v. J'iflii i; '21 C'hy. 
 .■)7(). 
 
 4. Co.*ls. 
 
 Wiiere mortj^'.igei's h:id a turplus in their hands 
 after a sale under theii' mortgage, and .S. claimed 
 the surplus, Imt refused to give such proof as the 
 niortg.i:;ces reiilliled of his title thereto: Held, 
 that as he mortgagees had acte<l rcasolialily in 
 rt'i| ■jriiii; propi r proof, and failing to get it, had 
 jiaid the surplus into court, they weri; entitled to 
 their cos's, of so doing, and to their costsol ;ip- 
 pearingiui S"s, apiilicaliou to liavi' the money paiii 
 out to him. A'l /v //(;/.</((/('/, 8 I'. 1{. 77. — '"*l"'''cfe'e, 
 
 See Ji(f/.:ioii \. Iliiiiiiiivinl it ill. 8 1'. It. l.")7, 
 
 moneys in court. On tlu^ apjilication of M., the 
 referee made an order, directing payment to tin- 
 assignee of the lirst mortgagee of his claim out of 
 
 ; the ]iurch;isc money in court. It .appeared that 
 M. thought he was purchasing free from imuin- 
 hrances, and was iguor.int of the lirst nioitga^c. 
 
 i Onaplieal, I'roiidfoot, \'.('., upln Id the lleferee's 
 or.ler. Flaiihi'j v. Mi-/><,ii;i,itl, S 1'. K. 'JIH). 
 
 I A mortg.agec ]irocedeil in ejectment against a 
 ' mortgagor, ami afterwards liied a hill in elian- 
 ' eery against him for a sale :— Held, that as the 
 I mortgagee could since the Ailministr.itioii of 
 I. Justice Act, ohtain in the chancery suit all the 
 ' remedies he could ohtain in tlie ijectnieiit suit, 
 
 the latter siuuild he staved i ver. Ha;/ v. 
 
 McAii/iiu; 8 1'. It. ;V_'l- 'Ualton, '•.•'. 
 
 Where a mortgagee comes in under a diicree 
 for partition or sale, ami proves his claim and 
 consents to a sale,h>; is not cntitliMl to six months' 
 interest, or six mouths' notice. /''• /Inn'tun — 
 Huiistoii V. Jliiiislnii, •_> t). 1!., Chy. I). 84. 
 
 8ee Criiso v ''/„.„, 8 1'. It. Xi, p. 171. 
 I XI. PliorlCKDI.MJS IN MoHliiAUK Sl'lTs. 
 
 I 1. TitL'llllJ Afi-nillll.-l, 
 
 The special endorsement ciii a hill claimeii a 
 certain amount to he due under the mortg.iL'c 
 (which contained the u.iual i-oviiianl to insure). 
 After the .service of tiie lull the plailllill' piiid 
 ci itain preiuiiinis of iiisur.ince. lilake. \. ( '. 
 directed notice ol siailing decree and taking ac- 
 ccnints to he served, and the plaiutill's claiiu to 
 be allowed on proof of the paynu'iits heiiig pro- 
 duecd. /■,'//!//(>/( ami •'irvtii.ili Inrt .ii nn'iil Cu. v. 
 <;i-iU/, .S I', it. !!»!). 
 
 A decree for redemiition was m.ide, which 
 directed all ;u.'couiii, ;o lie taken of tile amount 
 due liy tile iilaintill, representing the mortgagor, 
 to the del. I'l Hits. The ileleiid.ints, on proving 
 their c'ti:.. ',; tin: master's oilice, jnoduced their 
 mortgages, and tiled an alliilavit verifying their 
 claim, and stating that S'J(),;{(J!>.,'S8 was due tlieiii 
 
 I for moneys advanced hy then: to the nioitgaL;or 
 and secured liy tlie.-,aid inortg.iL'cs : lleld.hy the 
 
 : Master in (trdinary and .•iiliriued hy Blake, \'. ( '. 
 
 ! that their ilaiiii was prim.i facie ]Uoveli, ami the 
 
 ! onus of reducing the amount of it rested on the 
 pl.iintill'. (iiiirl V. llulUuid — Kj' jiuii'' ,'Joi-iiii. 
 S I'. It. 213. 
 
 It. 146, 
 
 5. Ullin' CiiifiK. 
 
 In a foreclosure suit the olHcinl nss!;;iiee of an 
 iii.solvent defi ndant paid ^\M into iviurt to pro- 
 cure a sale. The piocei'ds derived from the s,de 
 were inn. Ii more than siillicii lit to pay tin' |ilaili- 
 plaiiititl.-* claim in full, hut weii' iii.sullicient to 
 pay till' suhsi i|neiit iiiel.mhr inceis : Held, th.it 
 tile de[iosit should he a]>nlieil ill reduction of the 
 second morlg;igee's cl.iiiu. (Iznii'.sh'i v. liiiitij it 
 III., 8 1'. It. 14(5. — Blake. 
 
 The hill was liled hy a second mortgagee the 
 lirst mortgagee not heiiig made a party. At a 
 sale under tin' liei'lee, Nl. purchased the laii ' 
 and afti rwaiils [laid the purch.ise money into 
 lourt ; he then mortgagecl the l.ind, then con- 
 veyed his eipiity of rtdiinption, iiiid then to(jk 
 out 11 vestingorder. ( iraiit, asiihsiiiiient mortga 
 
 1 
 
 gee, claimed payment of his claim out of the 
 
 Where an amend nent in a matter of account, 
 as stated in the |ile;idiiig», would he allov.ed he- 
 fore deciee, a similar ameiiilinent should also he 
 allowi'd, if asked for, ill icsjiecl of the accounts 
 lileil idt<'i' decree, in the .Master's otlice. tniui 
 v. ilnllniiil, 4 O. It., Chy. D. 1188. 
 
 Si'c also I'liitrt v. lloUauil—Ex jMrte Ilnlhinil 
 ,i,i'l WhI.^i, S I". I!. •_•!'.?. 
 
 2. A III' iii/iiuiit iij .'<iiiti nil lit o)' Claim. 
 
 The phiintitV indorsed his w lit of suininons :iml 
 liied his statement of claim to recover possession 
 of till' laiiil in dispute, as heiiig the assignee of 
 a lease made hy him to the defendants, who as- 
 signed to a third (laity, who a.ssigiied and sur- 
 rendered to the jilaintilV. The defence was that 
 the lease was in ell'ect a mortgage, and framl and 
 
 W.ilit of eonsider.ltioll Were 
 
 allc 
 
 d : Ueh', th.it 
 
476 
 
 .MORTtJAGE. 
 
 476 
 
 till! pl.iintiffc imlil not ai. ■ ii.l his stati'in ;nt of Hi:c MrDomtlil, ^frDun(llll ami ^f<ll•Hh, S i'. l\. 
 
 claim, !m<l ask a fnrccloMun- of the land an iiiort 88, ji. -ttiS. y/c ('roiii/ii, K< w and tiillx, 8 I'.H. 
 
 gagir. Jfr/l/i. rill II v. Mdiiiiii'm it a/., ',» I', I!. :{7-, l". 4(J8. -SiiO also Ki nipt v. Macaulri/, <) 1'. 
 
 ir.7.— NViUon. U. r)82. 
 
 if: 
 
 42 Vict., c. 20, St. 11, ().,iiutlioriziii>,'thc taxa- 
 tion of a niort^ai:(.'c'H costs hy any jiarty intcrcst- 
 eil, without any order to ta.\, a|j[)li(s to niort- 
 ga;;cH executed liefore tiu! ]iassin;,' of the Act. 
 J''iriiiisoii V. limilUli itiiil .SfnlH.^li hicit iiniil Co., 
 S v. n. 404.— Taylor, M,i.'<l,r. 
 
 Multiiilieity of suits hy nir)rtgaf,'ee where only 
 itui' suit necessary. Sci; Min'lidiiln' Jiini/c v. 
 ,S;,'r//vs 28 rhy. 108. p. 47fi. 
 
 On iiroceeding witli the reference under the 
 deiice |ironoiuieed on the hearing, aa ri' ported 28 
 t'hy. H5(!, tlic M.ister liy his reiiort found that 
 1 'i was due to tliepl lintiH'!?!, 104.!>!), which in- 
 cludeil a sum of .SI 71. -W costs incurreilin the suit 
 .irou^iit liy him to redeem : -Held, on a|)])cal, 
 - (aliirmini; the report of the master) — (I) that 
 the plaintiir was entitled to claim the costs so 
 iiicinred, that ]iroeeeding having l)een taken in 
 n ihly in di fence of his rights ;is owner of ;in 
 enuily of ri(|(Uii)tion with tlie concurrence oft'., 
 thiniigli w liom the ,i|i]ifilant claimed and, (2) 
 that neitiier of the (U't'cMdants could dispute the 
 (indiugs in tliat suit, lint were estojiiicd from 
 (pu stioning tiie amount found due therein to tin; 
 .same extent as .larvis under uliom they cl.iimed 
 woidd have lieeii, the pi-oceedilig heing not in 
 nspiet of a m \tter eollatiuvd to the mortgage in 
 i)Ui"tioii in that suit, liitt virtndlyupmi the same 
 iiistrunient, .and th:'.tthercfore the rule.isto estop- 
 pil |iy deed,i)iplied. /'ii irr v. i.'njinriiii.'^',) ( 'hy..S2. 
 
 .■\ reference in a mortgage suit w.is directed to 
 take accounts .nid to inipiiic whether a s.ile or 
 forcelostire would lie more luMielieid. Thci-e were 
 no inrundirancers. Tiic delend uit» eliii'ud 
 credit for payments endorsed on the li.iek of the 
 mortgage, which wereinthedece.isedmortgag'i's 
 li mdwiiting, liut. for all of which the ilefi-uil.iuts 
 did not, hold V' !>its. Tie' pliiutill's disput' .i 
 the payments lot covered liy the receipts. (Mi 
 revision the taxing ollieer disallowiil the costs 
 of the iefercnce, as the master li.i 1 found in 
 fivour of the defcnd.ints' contention: - Hell on 
 ujipial that under <!. (>. ( 'liy. .'$12, the revising 
 olticei- might reft;r to the |)apers liefore the mas- 
 ter, and ileteiruiiie from them whetiu r the ]>ro- 
 e ediiii.'s were unnecessarily taken and that so 
 much of the reference a» related to the i|uestiou 
 whether foreclosure or s de ,\.is most Iteneliiid 
 oilglit to lie allowed. Held, aiso, that if tlie 
 credits endorsed cm the nmrtgage were iniide liy 
 tlie mortgagee or signed liy him, the plaiiitill', 
 liis executor, ou^^ht not to have ipK slioned tiie 
 amount, and so much of the costs of the re/enii' r 
 caused liy taking an .iccoMut slioul 1 i:(it lie idlow • 
 ed. J'iml;/\. /',(/■/.•, U I'. !!. -lit. fruu.lfoot. 
 
 W'heie H mortgagee Hold under apower of s;de 
 ill liis niortgage, .did the inortg.igor ■•ifi.erw.ails 
 lirougiit action .vgaiiiMt him for an ;ie onnt, .and 
 paymi'iil over to him. of ihe suiplus which he 
 jillegcil was in the mortgagee h hand'-, and on 
 tai;ing the account ii; Wius found ii liidanci of 
 i<\Mi, was payiMi' to the nioitgagoi' : --HcM 
 that the niortjiagce i uist pay to the niortgaijor 
 Ins fidl etmU vii' suit. Uniilluii v. liou'laid, 4 t>. 
 1!.. L'l'V. It. 720. 
 
 4. OUur Cimit. 
 
 Suit l>y creditors of mortgagee to attach 
 mortg.'ige debt. See Mvnz'uK v. (Jijilric, 27 (.-"hy. 
 45(i, p. Xi. 
 
 A mortgagee proc.ieded ou the same day to 
 foreclose the property of the mortgagor and his 
 sureties liy several liills upon their resiieetiv 
 mortgages, and to sue at law in ditleruiit action-. 
 the same parties on notes held l>y the plaintitls 
 to which the niortg.igeH were collateral : — Held, 
 that only one suii; in e(|uity was necessary, as all 
 ji.arties might liaveheeu lirought liefore the court 
 therein, all remedies given which might luive lieen 
 ohtained at law, and .ill rights more conveniently 
 adjusted hutwceu the ])arties in one than in se- 
 veral suits, and the court would not be deterred 
 from granting the relief by the oirciiinstances of 
 the decree being complicated. Tlieru were con 
 sent minutes betwetui the parties, except as to 
 costs ;it l.iw and in tlii.s court. Spragge, (I. 
 ordered the ]ilaintiirto pay the costs of the .argu- 
 ment before him, unless they were included in 
 the matters the subject <if the consent minutes. 
 Mvirhanlf' l>ttiik v. S/ntrb.i, 28 Cby 108. 
 
 I X.II. MlSI'ELI..\NEOUS CA.SE3. 
 
 I Where a pundiaser of part <if an est". to subjei. 
 to mortgige gave a covenant to pay a pr.iportiou 
 of the mortgage money, and a bill was tiled by 
 
 I the venilor's assignee to compel payment by the 
 )iureha.si!r, cl'c Court r-.-fu.sed togive such reliif, 
 except upoii the terms of ihe vendor's b'nare of 
 the mortgagi! debt being ]ia d at the same time, 
 although there was no covenant ..n the part of 
 the vendor that he would lay. iiut the court 
 refused b ) imdmle a direction t!;at the payment 
 by the purelia.-ier of his sh ire should be coinli- 
 tioii d on the p.iy.ileiit by other and indepeiideiit 
 purchasers of otiic jiarts of the estate of their 
 shares of the sitnnlue. In such a case, however, 
 it would seem t li.it any of such purelnsers paying 
 the amounts properly pay.ible by others woul' 
 be entitled lo use the name of the plaintill' in 
 proceedings against smdi defaulting purchasers, 
 
 \ "lion iudemnifving him against costs. C'lciiinir 
 .. /.'o.'/,, 27 Chy. lo- 
 
 Held, that the gi^■ing of a mortgage by a de- 
 visee w,ia not a violation of a restraint against 
 alienation. See Sniiih v. /■'iini/lit it «/., 4.5 *{. I!. 484. 
 
 .\ mortgage is a " contract" within the inean- 
 i .g of the Insolvent A<'t of IS7.">. s. \M). SmUl, 
 ' v. Iliiii-iiiijtiiii, 21! Ciiy. ."lO-. 
 
 ' Fiduci.-iry relations betwe... mortgagor and 
 ' niortg.igeo. See Thniiijiioni -. ffnliiKiii, 2S (Jliy. 
 ,;{.-); Kiihmini V. Ari,i<!</, (i A. U. l.">8. 
 
 Held, thiit thest;aul.r 42 Vict. e. 2i, (». : "A" 
 Act to amend the law of dower" does not ajiply to 
 niort,{.'iges niadi! be'ere it wn.:i passed. Mur 
 liiullllr V. Chtrtillli, (i A. it. I. 
 
 I In IHlil \y. M., the owiier of real .'9t.ite, 
 
 I c.vatecl a nioit/a). . thereon in favour of .1. T. for 
 
 «! !,000. ill 18'J.'< uo executed a subsdiuent mort- 
 
470 
 
 477 
 
 M i; N I ( " 1 ' A L ( -U RPO RAT ION S. 
 
 478 
 
 
 pim; ill favour of J. \\., tlio .•i|(iicll:int, to Mc^nin; 
 tlii^ |),iy""'"t of 8-<MMM) iiiid iiitiTist, wliiuli w;im 
 (Inly roj,'i»turt'(l on tlio day of its uxciMitioii. hi 
 ISliii, \\ . M. t^xciMitfil aiiutluT iiii(rtyaj;e to the 
 rL'S|)oiiiU'iit ('., for tlu' .sum of Sl,(K)0, wliicli wfis 
 iiitiaidi'il to III' siili.sliiiitiMl for till) jirior iiiort- 
 L'a;.'c of tliat uuioiiiit, and tlie iiioiicy olitainud 
 tlicrooii was aii[plicd tnwanls tin; payment tlifrc- 
 of, and .1. M. LXiMiiti'il ail agivonu'iit iinilur seal — 
 n dc'L'd |i(ill eonseiiting and a^'i'eein^ that tho 
 i)i'<i|iosi'd iiiort<{a<^e to res|ioiiiK'iit ( !. sliould havu 
 Jill irity over liis. In 1H7"», •! . M. assiniiod his 
 liiiii'ti,'ai,'e for S-O.tHM) to tile (;iie))ue IViiili, witli- 
 oiit notice to tlie liuili of liis a^^roenient. to 
 secure ;it'eei)taiiees on wliieli lie was lialilo, wliieli 
 tts.sij,'iiiiieiit was rej^istereil, and sniiersedeil the 
 jiHi'cineiit, wliii'h ( '. h i<l iie^'leeted to ri'iristor. 
 V. liled Ills lidl .luiiiist the executors of \V. M., 
 and attaint .1. M., and tlie hanli. The (.'ourt of 
 I h II ry 111 'd that the i( i|ioiideiit was not eil- 
 tiiled I'l nlief upon llii! fact-, as shewn, and dis- 
 missed tlie hill. The ( 'oiirtof Al)pl^•ll .itlinned the 
 ^ "ee as to all the deleiidants, except ;is to ,1. 
 , ., .vlio was ordered to p.iy oil the respondent's 
 (pl.iiiitill's) inortir iL,'e, ]iriiicipal and interest, hut 
 • 'lioiiteosts. .1. M. thereupon a|)peal(!d to the : 
 reinc' court of ( ' inada : — Held, allii'ininL; tho | 
 ^ "luiiK lit of the Court of Appeal, .">. .\. 1!. .")0U, 
 rtvcrsiiii,' -li ( 'hy. "JSO, (Stron;,', .1., dissenting), 
 that !is appellant could not ju-tify he hreach of > 
 his .igi'ecinciit in favour of < '., he w.a.-" hound liotli I 
 at 1 nv and eipiity to i Iciniiifv ( '. for any loss lie 
 siist lined hy reason of ..luh hreach, McDoinjall 
 V. i',ii,ijt'>,fl, ti S. ('. I!. .W-'. j 
 
 Itiu'ht of niunii'i|)al corporation to tak(! ii iiiort- 
 gajj;c Iroin a in iinitai liircr s.'inuiii:,' perform i:.cc 
 of eiiiditions on which honiis was i,'rantcd. See I 
 'flu Ciir/iordti;!:' ai' llif \'illii'ii tit' UrinKih v. 
 l{n,„ll,/,l <il.,4{).'\l I. 
 
 If a person Jiorr.iws money fnuii an iiinoceiit 
 lender, and eiiiplnys it in pri-fcrring a creditor, 
 the lender is not dchaircil fniiii suing for its rc- 
 ]iayiiieiit; and if he holds s 'ciirity, such .is the 
 iiloi-t^Mgc from .1. ,iiid It. to 1)., ill this case, he 
 can charge the iiioiiev so loaned (Ui such security. 
 Cdiiii V. Jfn/hni,/ ,1 !il., 4 (>. i;., ( 'hy. D. (W;v 
 
 .Sue Mr/,,,ill'lil V. //itlllllliil, 'M ('. i*. "JIO, J). 
 
 414 ; Mlt</,< II V. Slr,illi;i, '2H I'liy. SO p. :W(i. 
 
 MoltTMAIX. 
 .S'.c VVii.i,. 
 
 MUi/rii'AuniLsNixs. 
 
 .SVr 1'i,i;ai>in(i. 
 
 MUNIClPAl, Coinnti't.VnONS, 
 
 !. KXTENSION .VSD S|;| AI!Ariii\ OK .NIcNICI- 
 
 I'Ai.i \ii;.s. 
 
 1. >ti his iliitl lAilliilitkK, Iwtr ilj/'oi'd, 479. 
 
 1 1. Mkmiieuk ok « 'o»j.sc'n,.i. 
 
 1, Qii,rli/;ifioii, 470. 
 
 2. DmiiHuliJh-iiti'iii, -480. 
 
 I I I. VdTKKs' f,HT -.SV(;PaRLI.\MRNTARYElEO- 
 
 TloN.S. 
 
 IV. Co.STKOVEKTEll Kl.KlTrON.S. 
 
 1. 117(0 laiin In- lidalDi; 481. 
 •2. I'rtirfin: 
 
 (a) Tiiiu-for Afoimij, 481. 
 
 (h) D'urlahnr, 481. 
 (e) (Jo.tls, 4S'_'. 
 
 (d) /'iimiTM of Ciiuiiti/ Court Jttili/i; 
 48'i. 
 
 V. A(J KI'rASlIK AND |)Ki;i,AllATI()\ OK OK- 
 
 rin;, 4S:i. 
 
 VI. N'Acvris'ii Okkick iiv Nos-ArrKND/vNCK, 
 48:J. 
 
 Vll. Mi;r; nijs ok (!oirN(;iLANi> Conduot ok 
 Bu.siNKss, 4S;{. 
 
 VIII. OKIKKUS ok I'IIK ('OKIMUATIOX. 
 
 1. Tvniir,-i,/Ojlin; 4S4. 
 
 2. Ti-' iniirir ttiiil h'n Siiirlir.H, 484. 
 
 !{. ('i>lli'rfi)i:i (iiiil tliiir Snri'tii'M — .SVe 
 AssivSSMKNr ANI> Taxb-s. 
 
 l\. Iiv Laws. 
 
 I. driirriilli/, -ISl. 
 
 '2. IJiinxliiii,! liii-liiii'^. 
 
 (ii) liji-liiiiu ii'tl /inxi'il ill Ike Jnli ri.it 
 
 ' of I ill- /'iililic, 4.S4. 
 (h) 117/. < iii'i'i .Uorr, -tS,"). 
 
 (c) Tiiiii' of Moriiii/, 485. 
 
 (d) < •„.■</.<, -LS,"). 
 
 X. (iKNKiiAi, TowKiis \Ni) ncrrK.s okCok- 
 
 I'OltA I'lONS. 
 
 1. Kiiiiiiiiil Itimiiiiii, 481"). 
 
 -. (.Ii'diiliii;! Ill I'liilir ri/f hmulK ^'.rprriuli/ 
 Aii/irnjiri'tliil l'i/'i(lilir /'iir/tosi ^fiSii. 
 
 3. y>^(.'^».1<,^ /<) Miiiiii/'iiciiiriiiij ComiMinieK, 
 
 4S(i. 
 
 4. Aid to lliiihi'dii I'liiiijiiiiilrM hij liiniii 
 
 — .sv. Kaii.wavs ani> Railway 
 
 t'oMl'ANIKS. 
 
 T). Drdinii'fi' iif Liniih. 
 (a) Pililinii 4S7. 
 (h> ."iihli,-(i/,oii of Itii linos, 488. 
 
 (c) Ainistniiiit, 4.S8. 
 
 (d) OI/i,r t'lisi:-' 489. 
 
 (>. />''•«•«•/•«, 490. 
 
 7. Aiiftiiii.il !'■', 41K). 
 
 8. T I'll ii-w III Trader.i, 490. 
 y. Miirkit.^. 491. 
 
 10. A^lir of /Irniit, 491. 
 
 11. I'lihlii- U.kIHi, 491. 
 1'2. Xuixniii'i''^, 4lf2. 
 
 13. hiittli Itnniiiiiij 'it L'lnji', lOi 
 
 14. ]y:.l(l, of Tin ii,4{}2. 
 l.'i. fiif /.iniil^, 493. 
 
471' 
 
 M UN RIPAL COUPORATIONS. 
 
 •ISO 
 
 i: 
 
 tc 
 
 
 i 
 
 11 
 
 U). I'uhliv J/«/k/.s, 41):{. 
 
 17. Di'ilkdiiil l.aiiiU- Si li Dkdication. 
 
 18. lliijiiriliiiii A^xtufiimil miil Tiui.i 
 
 ,Sii A^.-*i>.-.Mi;.Nr AMI Tams. 
 
 lit. h'oiii/x- S,, Way. 
 
 'JO. SrlwolxSee I'ciil.lc Schools. 
 
 XI. 
 
 Actions am> 
 
 AC a INS r 
 TIONS. 
 
 K. I*, liciiiy t)iu lt'».si;u (if cortiiili )ii't.'inisus, lie 
 a8.^igiit'il liis interest to II. i'. iil'lcr the ii.ssifts- 
 iiiLiit idll fur tliiit yitnr li.nl Ijim'Ii lotiinuil, witii 
 K. I'. iiM.sisncil iiir till) iircipiTty. No iiiptit'i: nt 
 iil>iieal !i.i,';iiii»t the iis.si-sstiH'iit wm.s served until 
 Buvoral ihiy.s iUter the time liiiiiteil for so ilnin;,' 
 hiitl exjiired. Tliu court of revision, on a|p[ieal, 
 Hulistituted II. I', for K. I', on tlie roll. On an 
 aiililieatiiiii to set asiile the eleetion of II, 1*. as 
 I'Kod.KDINCs I'.V AMI ,,„ alderman, on the ground liiat the .lefeudaiit 
 Mink ii'Ai, CoitroiiA- , ^^.,^y „„j^ mUd o" the loli w ht n it was made out, 
 I anil that he was not sullieiently c|ualilied ; Held, 
 tiial the Mssesument ndl was alisolulcly liiudinj;; 
 and that its I'orreetuei-s c^iuM not !»■ triecl u]i(iu 
 Kueii an a|i|ilieation : ami lii'it the want of notice 
 waa cured hy It. S. ( I. e. IM», s. r>;{. /,'ii/iiii( u: 
 ,;■/ llii,i,ill,>n\. J'i/nr, S 1'. U. *-'•-»;").■ J )al ton, (^». 
 C — -Viinoiir. 
 
 1. avmralli/, 4t);j. 
 
 "2. Ni'ijlnji lift'. 
 
 (il) ( li Hi, -11111]— Siv NKiil.IilKNCK 
 (li) III i'liiialnutiiiii o/' JJniiiis 
 
 Sun rs— .SVc Watki 
 Watehcoik.ses. 
 
 mill 
 ami 
 
 lleM, und.r4:{ Viet., e. •-M, h. :!, that in esti- 
 luatinj; the defendant's iimiieriy i|Uaii(ieatioii, 
 the .'imount of the mort^^aye.i ujiou the proiiei ty 
 Xll. MA'ni'.lJS ItKIKItliKI) 'lo Alinril.'AlloS, must he deducted floin tlie assesseil, ami net 
 4'j;i. ; from the real value, linfiiiu i.c n I Kdlij v. /««, 
 
 3. Mtlhihlliilis lo. — Sii- Mamia.mis. 
 
 .SLIU. AiuiT oi C'or.MV 
 
 tOUNT.S— .Vir L'olNTV AlTO NKV 
 
 K.XTKN.SION AMI ^^I^AKATIO.^ OF Mt.SKI-l 
 
 rAi.rriKs. 
 1. I)ilils Olid l.iiil'HUiiii luiw ajj'icliil. ' 
 
 ArroKN.Vs A.-'«f. K. 4a2.-()Hler. 
 
 On the !Hh |)eecinlper the liinior license of 
 liiiolh Bros., of which firm res|iondent was a 
 memlM r, was tran;ili ircil to one of the ]iarti..:rs, 
 'r. II. I'lciotli. The nomination took jilace en 
 'l:'.\\i\ |ie(cmlier'. On the lioiiUs of the registry 
 otlice tlie ri's|i(iiident's frieholil jirnperty aiijiearcil 
 incumlii red to nearly its a.-.sessed v.due. It w.i.s 
 slu wn that the nioitg.'lges had. Iieen reiluced, .sn 
 
 as to leave the |iio|ierty Worth, ai rdiug to tliu 
 
 .is.sesscd v;due, .'i^'.Ki!! over ami almve incundiran 
 (•cm: Held, that the iiiopc rty i|iialilic;ition was 
 siillicitnt, liut tliat the respondent was tiiu holder 
 of a license within the meaning of l>. S. O. c. 17 i. 
 M. 74. ii'njiiiil iJ' (' /, /ifiiir V. Iliiiil/l, it 1', It. 
 4rr_'.- l>alton, Mii.ilir. Allirined on appeal to tlie 
 
 Tlic liill alleged that the mi icipal couneilM of 
 tlie let-pcctive eorpoiation.s liad adopttd and 
 HUlictioiit'd eel tain teiiiiH and conditions for 
 <Iividiiig anil settling the several liidiilitics and 
 asHfts of the corporations upon their separating, 
 and that lioth paitus accepted such settli niciits 
 UH u liiial settlement liet\\ccn tluni, and acted 
 
 thereupon : -Held, on dciuurrer, that it was not | t^. |i. |)iv, ;i O, It. 144 
 nc'ceBsary to alh'ge that such aeceptance wa.i liy 
 liy-liiw ; although Sendile tiiat at the hearing it 
 uiiglit lie necessary t<i estahlish that hiich wa.s '2. J)!.^i/ii,ilini-iilh 
 
 the fact. Till ('hi'I'HI'kIiiiii I'J llii \iUiijiuflliiiviii- 
 
 linritl v. Tin I'lir/iDlillii'li "/' '/\iirilsli'iji ly' MiidLuLh, 
 
 29 Chy. 4:VJ. 
 
 Sec also ISulih'-ail, \1I., [i. 49.'{. 
 
 II. Mk.MI'.I-.KS ol' CoCNClLS. 
 
 1. Qualijiml'wH. 
 
 The defendant wa.s not asHcssed for the year 
 ISiStI, lint ill that year was assessed, on the Ihd 
 of Scptcmlicr, for the year IHHI, upon unincum 
 henil leaoeholil property of the value of §4, KM), 
 
 A nruicipality passed a liydaw to e.veiMpt 
 from ta.\atioii, for a term of yeai'.-<, a mill to lie 
 liiiilt within its liniitu liy a linn of which ddcii 
 dant was. a inemlier : Held that there was :i 
 contract sulisistiiig lietweeii defendant and tiic 
 miinici|iality, and that he was '.lieiefure disipiali 
 tied from holding the ollice of reitve. Itujiiin •• 
 vil. Ln V. (liliiiuiir, 8 I'. I!. .">I4. Osier. 
 
 An unlicensed person who, iindir tlie uoloiir 
 of a licen.se to his .son, whether in cullusion w itii 
 the latter or on lii.s own .•espmisiliility, sells 
 liijiior liy retail, is not ilisi|iialilicd iiiidci sec. 7'( 
 ol the Miinici]ial .\ct fro;ii holding the ollice nl 
 
 I'.y lij daw of th( city o( Ott;. ,;i this assesMiicnt ; alderman, though he may have rendered himself 
 
 wiia revised liel'ore the ITith XovciiiIh r, and re- li.dde to peiiallies for lireach of the Liipior I.i- 
 
 tiinied liefon^ the Itlst I'eceiiilier aa and for the Ceiise Ads. /I'lgooi t.c iv ('. ('liiini/ v. Coiiiniil, 
 
 iiHHeswinent roll for the year liShi. Is'o appi al 4(1 (^t. H. 8."i. 
 
 was had therefroni. The iioininatidn took iilace I „,. i i >• i- !■,• !• i. i .;. . 
 
 .1 .,-.■ I, . 1 .. ivwii ..1*1 111 i' III" <leclaratioii ot oiia ilication not having 
 on the-itli Hcccnilicr, IhMi, ami the dele inl.int • i . ' i .i i i- i .. . 
 
 , . I , . , />(,.. . . 11 ■) 1 I lino made, leave waa given to the delciidant to 
 
 y,uH elected mayor ol Ottawa on tlic .tid tl;in- ■ in -.i . i .i ■ i 
 
 11:1.1 II 1 1 ti I II I 1: 1 ! li^.ke the same within tell ilays, otherwise lea\e 
 
 nary, I8M :— Held, that 111" electicii commenced , 1 * .1 • •■ .■ .1 .,., 1 
 
 r, ■ »• 1 ..1.1 1. 11 Was granted to hie .111 iiitorinatinii on the grouiui 
 
 on the noininatioii "lay aiel tin i>KesHiiieiit roll , ., .'^i 1 . 1 . n n ■ 1 41 .• . 
 
 .. , 11 ill 11 . ;. 11,1.1 1 tint the I I ell" ani ilegally exercised the tr.iii- 
 
 inentioiic" , w 1 c 1 was to take 1.11" 1 1 in Iss , and ,. ,, ,,. ,,° ^ 
 
 not licfun, was not tlu' last rex isrd aMie^snltnt 
 at that time, within the meaning of the hylaw 
 and It.N. O. c. IM), a. 44, and the lUletiilant ( lulil 
 not qiialily thereon. Ii'iijiini vj; ril, Ctaiivi/ v. 
 Ah-iuloili , 4(i l,^. H. 5)8. 
 
 ehisc'S III I he "illiee, lit. 
 
 The defendant ami hiii lirolher were cariyin:; 
 on liiisincss as liootli Mros., and had a license in 
 the liaiiie of (hit liini to sell intoxicating liijiiois. 
 Before the iioinination of niemhura of thu i'ark- 
 
480 
 
 |lI•|.■llli«l^^, he 
 r tin; iissfiis- 
 t.iinuil, witli 
 N(i iiiitiri: (it 
 HiTviil until 
 liii' so iliiiiii^ 
 I, <in .iiPiicii, 
 It'll. On Jill 
 
 of II. I'. ilH 
 
 It! ilflVinl.iiit 
 .'IS niailc nut, 
 lif.l: 11,1(1, 
 fly liiiuliiij;; 
 f tiiiil ii]i(ni 
 .int tit' iitititu 
 I!' i/iiiK I j: 
 J>ilti>ii, (,». 
 
 tliitt in e.sti- 
 linililit'iitiiiii, 
 tin; jinipuity 
 led, 1111(1 lint 
 Killi/ V. /(/«, 
 
 )r lit'L'ii.so (if 
 iiilfiit w;i.s :i 
 the [Llltl. :!,>(, 
 ink [iliicc nil 
 the rij;i.stry 
 •ity.i|il)c.iivi[ 
 line, itwa.s 
 I I't'diKx'd, .sii 
 il-tlili;:,' ti) tilt; 
 ' int iiiiilinili 
 ilii';itiiiii \v;is 
 iis tlio lidltler 
 . S.O. i:. 171, 
 .«//(, It 1'. K. 
 iilHieal to tliu 
 
 V to fXcllllit 
 a milt til lie 
 
 which (lilcii 
 tliiTi; w.is ;i 
 
 1,'int iiikI till' 
 
 fiiiv (lisi|iiiili- 
 Ji'i/iiiii I. 
 
 ).s1li-. ' 
 
 ■r tlio c'liltiiii- 
 
 llllllNioll uitli 
 
 <iliility, mll.s 
 
 llllllcl .Sl/L'. 71 
 
 the ollicf of 
 liTi'il hiiiiMil 
 (.' Lii|iioi' l.i- 
 
 r V, ('Ollll'ill,', 
 
 1 not liiiviii^ 
 ilcfi'iidaiit to 
 ln;r\\ iwi; Icavo 
 n till! ^rouiiil 
 icd thu fraii- 
 
 reic carryiii;; 
 il a lii'uiiM' in 
 itiiif{ li()iiiiis. 
 of tho Talk- 
 
 481 
 
 MUNICIPAL CORPORATIONS. 
 
 482 
 
 dale conncil tho defendant, with the couHunt of 
 thi' licenBucuniniisHionui-H, transfurrvd his iiitureut 
 ill the lioeiise to his brother, ii. <^|•(^e^ t<» (jualify ' 
 un a councillor, hut the husiiicHH continiiod na ' 
 before : — field, aihrniing the deuision of tlie 
 master in ChaniberH, i) ['. 1{. 4r)2, that » lieenHe 
 caiiiuit lawfully be transferred except in the caBcs 
 mentioned in H.fS.O. e. 181, a. 28, none of which 
 bad occurred here: that tho cunsentof the coinniiB- 
 gidiierii did not validate the transfer, and there- 
 fore that the defendant, who retained his interest 
 ill the license, was not ijualified to be a coun- 
 cillor. I'er Armour, J. The Act disijualifying 
 a licensee should bo construed strictly an(l 
 aliould not be extended to the ]>artner of iv per- 
 giiu lawfully hoUling u license in his own nnmo. 
 Ki'ijuia tx irl. Jiriiit: v. Booth, 3 O. R. , Q. B. 1 >. 
 114. 
 
 IV. CONTKOVEUTED ELEimONS. 
 
 1. 117(0 may he Relator. 
 
 Held, that an aldcniian's right to the office on 
 the ground of an iiisiillicient declaration of (piali- 
 ticatioii and for the want of ((ualilit^ation at tlie 
 tiiiic of liiH I'h'ctioii, might lie (|iii'stioncil liy a 
 (|Uo warranto at tlu^ instance of a ratepayer not 
 !i voter of or resident in the ward, and who 
 tlieivfore coiild not Im; a relator under the Mu- 
 liii'i|ial .Act. Itcgina ex rel White t\ Roach, 18 
 (,>. U. •_'-J(i. and Kelly i: Macarow, 14 C. F. 4r)7, 
 (listiiigni.slied. liiii'ma ex rel. Claiici) v. St, Jean, 
 4ti Q. H. 77. 
 
 ing been declared elected, and one at the head of 
 the poll resigned his scat, an injunction waa 
 granted to restrain the reeve and councillors of 
 the villige from pr-tventiiig the plaiiitiHcnteriug 
 upon and discliaiyiiig the duties of such olKce. 
 Umllli X. I'lkr^nllr, '28 C'hy. OO'J. 
 
 The notice of the party resigning the office stat- 
 ed that ho resigned his "seat" in the council : — 
 Held, siillicient ; that the plaintilf was entitled 
 to his costs, alfhiiiigh the .Act retinircs notice of 
 a resignatiuu of tho " ollice" to be given. lb. 
 
 (c) ('oitn. 
 
 A muiiicip.il election set aside, but without 
 costs to the relator, on the ground that be was a 
 confidential otliccr, (auditor, ) of the corporiition, 
 following Rcgiiia ex rel. .McMillan r. DeLisIc, 8 
 U. C. L. J. -JIK). liniimt CI' nl. Urine v. Itooth, 
 9 r. R. 452. -Daltoii, MuM< r. 
 
 Seo lie(jiiia ex rel. Mitr/ii I v. Jhiriilmni, 8 1'. 
 R. 4;ii, p. 481 ; Smith v. I'dersdlle, 28 Chy. 
 .51)9, Kiiiini. 
 
 2. Practice. 
 
 (a) Time for Movimj. 
 
 Held, that the relator in this case was not too 
 lute, having applied in the next term after the 
 I'liiction, and only one day after the time for 
 iiiuving under the statute. Ifei/ina ex ret. Ciancy 
 v. .S7. ./.((/(, 4(i Q. li. 77. 
 
 iSee /t'liiinii ex rel. f'lnnry v. Mclntoxh, 46 Q. H. 
 98, p. 483. 
 
 (b) PiHclaitiier. 
 
 Defendant was tdected to the office of council- 
 i(ir for a town, and accepted the otHco. Subse- 
 qiieiitly and bef:)re the issue of the writ of (pio 
 Wiirrantti, the defendant knowing that his elec- 
 tiipii was to be contested. Bent tho f(dl(iwiiig 
 iii8truinent to the council : " I'almerston, Feb- 
 ruary 7th, IS8I. To the Mayor and (Council of 
 the to«ii of I'almerstoil : (lontlcinen, 1 beg to 
 disclaim my seat at the council board. (Signed) 
 (i. S. Davidson :" — Held, that the above dis- 
 claimer, not being in the form prescribed by R. 
 S. (). c. 174, 8. 1!I4, was not sufficient to relieve 
 tilt! dclVndant from costs. Heqina ex rel. MUe.Uell 
 V. l)in-„U„n, 8 R. R. 4;{4.— (Jsler. 
 
 Sect. 111.") of tlu! .Municipal Act provides that 
 tbt! eUect of a party diselaimiiiL' tho oBice to 
 which he liius bei'ii elected shall lie to give the 
 Hiiiiie t(i tile candidate having the next highest 
 iiiiniber of votes: — Held, that this meant the 
 iMiidid.vte having such nuiidier of Votes who has 
 not luiii elected to the (Council. Therefore, where 
 tlif plaintill' was the candidate who was fourth 
 ill that order, the tliri^o highest on tho list hav- 
 
 31 
 
 (d) Powers of I 'ountij ( '. •art Juihje. 
 
 A county court ,j;idge has power to grant a fiat 
 in term time f ir tlie issue of a writ of (juo war- 
 ranto to try a contested mnnicip; 1 election : — 
 Hehl, that Rule 1. M.T. 14 Vict., has liecome in- 
 operative by the effect of suDseiincnt statutory 
 enactments, to which it is icpuguaut. Jliifnid 
 ex nl. McDonald v. Amter.ion, 8 R. R. 241.— 
 Osier. 
 
 I A writ of summons in the '-.iture ot a ijuo war- 
 ranto having lieeii issued, under 1!. S. O. c. 174 
 s. 179, on tlie liat of a county court judge, re- 
 ! turnable before himself, to try thi! v.didity of 
 j the election of an alderman of one of ihe wards 
 of ;v city, the county court judtje, l>efore ap- 
 pearance entered, made an order setting .'vsitle 
 his fiat and the writ with costs for irregularity 
 in the proceedings. Oi. ajipeal from the deci- 
 sion of the chief justice of the Court of Queeii'ii 
 Bench, 8 I". R. 497, discliaiging a summons to 
 set aside such order: IVr Wilson, C. J., the 
 county court judge had tlie power to make the 
 order. I'er Osier, .1., he had no such power, his 
 power being limited to trying the validity of the 
 election. The court being etjually divided the 
 appeal dropped, lieijina ex rel. O'Dwi/er v. 
 Lewis, 32 C. V. 104. 
 
 The judge of the county court orilercd a writ 
 of (pio warranto to test the valiility of the elec- 
 tion of an alderman ; and subse(iuently, before 
 appearance entered to the writ, set aside all jiro- 
 eeelings in the matter for irregularity. The re- 
 lator thereupon applied in Clianiltcrs for a m;in- 
 damusto compel the county judge to try tlie case, 
 when the iiresidiiig judge (llagarty, C. J.) refuseil 
 the writ, 8 1'. R. 497, and on motion in banc, 
 the court adirmed his ruling, 4(i i,>. li. 175. Oa 
 afipeal from this judgment, the appt^al was dis- 
 missed on the ground tliat the order of the county 
 judgi% if he had authority to make it, was not 
 
 i subject to review ; and if it miuld be revicwetl 
 the iippiication should have been to tlic court, 
 
 1 not to a jutlge in < 'liauiliers, as here ; and under 
 all the circunitr'tancos tho appeal was disiniasod. 
 
JH3 
 
 .MUNIOM'AL (X)Rr()llATIONS. 
 
 4H 
 
 liiit witlimit rn><t'<. The writ of i|nii wnrrniitii 
 having liicii issiicil iiiiil N<'rM'(l, tlic i;oiinty cinii't 
 jllilgf li.nl nut |iii\vcr f(i Hi't it, .'isiili'. /{I'jinti i,r 
 
 el. <l 
 
 tit V. < 'all 
 
 7 A. It. (ll!». 
 
 \'. AccKl'TANr r. AND Dai.AU AlKiN OK <>KKIt K. 
 
 The ilccl iialiiiii rc'(|iiiri'il liy thf Miiiiii'i|>.'il Act 
 It. S. <). o, 171, H. -Mm, licim cvci V |i»'isiiii clci'tcil 
 
 miller th<' Act tn any ullii 
 
 •I' 
 
 ilic'itiiiii, is ,1 I 
 
 i(|iiiriiii^ a |iiii|iii ty 
 
 III' rrillllsl 
 
 ilr til th 
 W 
 
 t; ilisi li iryi' 
 ii'i'i: ;iii .'ilili riiiiin 
 
 III till' lIlllirM llf Hill ll illlii' 
 
 L'li'i't ili'l Mill St iti' ill his iliM'J.iiHtiiiii till' 11,'itiiri' 
 (if his cst.'iti' III, iir till' viiliH' llf till' I mil, Imt ili'- 
 ciai'od tliiil liis |iiii|irily w.is siillicii-iit lo i|ii ilil'y 
 ' ai'i'iii'iliii.; til the tnit' iiiti'iit ami iiiciiiiii 
 .Mm 
 
 him ' 
 •if till 
 that th 
 ,'«/. CI. 
 
 iiiii|i:il l.au'siill |i|i' I' ( 'aii.'ula 
 
 IC ih'rl.'irilllilM W.'IH IIISII 
 
 iiiicii V 
 
 llirii 
 
 lit. 
 
 ,S7. ./, 
 
 ■It; «.». i;. 77. 
 
 lu 
 
 ijiiiii 
 
 Tlr 
 
 111 rr|itain'i' of iillici! Iiy a iiiiiyor rli'i't, re 
 I7», H. ISO, witliiii li 
 
 fcriiil to ill I!. ,S. (». 
 
 iiioiith fi'iiin w'liii'li a wiit of i|iio w.'ti'i'aiitu to try 
 
 tl 
 
 H' valjililv III Ills I'lirtimi must i.ssiie, is a for- 
 
 ll 
 
 i|ii;ilitii'aliiin -ii 
 
 ■ptiliri' liy till' stillltoiy ilri'l iiati f 
 
 ll iilli 
 
 not ,1 mi'ii 
 
 aeei'iitalii'i' liy s|i Ii to till' ili'clors, or smli liki'. 
 
 Iti'gili.'i ex I'll. I.iiitoii V. .lai'Usoii, '.> ( 'liaiiili. II. 
 18, ilisscnti'il from. Itniiiin i.r nl. I'ltiiiri/ y, 
 MrliihU, Iti (,». 15. its. 
 
 The (leclaratioii of i|iialilii';itioii imt liavin|{ 
 lieell Iliaili', leave w.is ;;ivoll to the ilefiml ilit to 
 
 iki' tl 
 
 11' s.iiiii' within till ila 
 
 (itlit'l wise le.'ive 
 
 was ^r.'iiitril to till' .in iiitoriii ilioii un the ;;roiinil 
 th.it the il.'li'iiilant illt'.^aily exrrei-ieil the fraii- 
 
 if th 
 
 iliii 
 
 ( ''iiiirni/, Ut (). [>. Ho. 
 
 A'l;/ 
 
 Hill <.(• I'l 
 
 I. Chi 
 
 iiri/ V. 
 
 VI. N'AivriNi; Okkick iiv NoN-A'rrKM>\Ni'i':. 
 
 The pi. lint ill' ami others, eoiiiieillui'H of the 
 
 1 
 
 town of I'l'iii 
 ■ 'iiiiinil on I he 
 
 iia, alti'ii 
 "'th .\i.iil. 
 
 11 
 
 a liiietilii' of till' 
 ley Hi I'c iiliselit at 
 
 tlit^ next nii'i liii^ ealleil lor ami liehl on tlie .'tist 
 
 Mi 
 
 y anil tlii'iM < liii uaiil. without ant lion/ation. 
 
 till the Ttli of .Inly, wh( 
 
 eoiiiieil, a riHiiliition i 
 
 le.'li 
 
 at a mei'tinj; of the 
 
 mn^i 
 
 tl 
 
 leir scats vacant 
 
 VJIJ. Okkii'kiis (IK tiik Coiti'iinArioN. 
 
 1. yv 
 
 -;/• Ojll, 
 
 Muiiii'i|ial olHeern appointeil liy the eonncil 
 llohl olliee iliirili^' the |ileaHiii'i! of the eiiiiiicil 
 ami may lie leii >veil willioiit iioiice ami wilhoiit 
 cause. ' WiU.ii V. Voik; -Hi (J*. U. US!). 
 
 T 
 
 ivii!<iiri'>' mil 
 
 I hit SiiriliiH. 
 
 I.ialiility of eov|ioration for frunlnlcnt act iif 
 its clerk ami treasiircr actiii;^ wil hill lhcsc(i|ii' 
 of his aiithorii.y, the corpor.ition li iviie,' lecciveil 
 the h.'iielit .if the friinl. See I'lir MnlimiK liiiiik 
 V. '/'//(• ( 'iiriiiiniHiiii 1)1' I llf '/'iiii'ii llf liiiirki'illi-, 'M 
 C. |>. I7.t, p. ((!>. 
 
 Where a township treasurer w.is liy his hiiiiil 
 ■ lateil I'ltli Ocliilier, IS7I, liouml to iliily acciiiiiit 
 for .'ill iiioneys coining into his hamls ami .'ippli 
 
 '.ilile to t.\v 
 llcM, that 
 
 e ;,'eiii'i'.il uses ot llic miinnipa 
 
 I 
 
 ility 
 
 cici'i^v I'csi'rvi^ iiiiiiii ys .'imi iiiniii'v 
 
 1 1 fro 
 
 tl 
 
 IC ilisti'iliiitioii III the provincial 
 
 surplus, which li.ul liy hy-l.iw liecn spi cilically 
 ippropri.ileil to eiliicational purposes, ucreiint 
 
 within tl 
 
 ii'liliiiii of the homl, ami th it t 
 
 11! 
 
 iipcr.'itioii llf this lioml was not i xtcmlcii tn 
 scliiMil moneys hy the ll. .S. (). e. ISO. s. •_'!:{, 
 
 ll It. .S, (». 
 
 •J(»l, 
 
 M. •/'/„• r 
 
 .'i:i, 
 
 •lllinll 
 
 III' /.III '/'iiiriiH'ii/)!)/' <fii/,-liiiiil V. /'riiprr it uL, I (>. 
 It., (hy. I). :U0. 
 
 I.\. I{y l>A> 
 
 1 f. 
 
 il III Villi ll 
 
 \ liylaw must he re,'i.soiialily clear ami iinei|iii. 
 voc'il III its l.'iiiL;ii'ii;c in oriler to vary nr illcr tl;p 
 ciiminoii law or st ilul.ilile rights. Cnnri- v. 
 Sill III I- 1 1 III., Iti«,>. |{. S7. 
 
 Sciiililc. th.it It. S. «>. 
 
 I7», 
 
 eii.'ictiiij; 
 
 ,111)1 ■■I'lleiin^ a new elcitiuii was nut, ami an 
 
 aiiu , . Itnclll 
 
 relei till' iiiatlel to the town soli 
 
 I'itor was hixt ; when^iipon the ilis.scntieiits left 
 t'le roo.ii, in « onsi'i|iii'm'c of which there was no 
 ■ pioiiiiii, when till' iiri;;inal imitimi was |ait anil 
 carrieil : Mi hi. I I ) that the three montli.'- .'.IimiiIiI 
 lie eiiilliteil fioiii the .'list May, liciii^ the liist 
 liicetili^' that the plainlills li.ul not alteiiileil ; .iiiil 
 that the icsol if mil was theretiire \oii|, as Weli 
 .iH on tl'.c i;ri>iinil that Ihere was no ipioriiiii pre 
 M^nt when it was pas.scil ; ('J| that the cuuit liml 
 
 Jill' mi 
 
 Ih't 
 
 loll to entertain a ni'itl 
 
 iwi fi.i an iiipiiii 
 
 tioii restiainin/ the ilclemlants Iroiii interl"riiig 
 with the phiintitls in the exercise of their ollieial 
 iliities .iml that the injuiietion ini^ht he .iwaril- 
 eii aviii an interlocntnry application. .Mmnis 
 V. I'h< Co, 
 
 orftni'it'i'jii of I III 'I'liini III /'iliiiliii, '2H 
 
 ( hy. m. 
 
 VII. MK.fTINJJS or (loi'Nrtl, AND CoNtiliT (IK 
 HCSINK.X.S, 
 
 Siio MiiiniH V. 'I'lii CiirjHiiaHiii) of Iht Touii uf 
 I'fli:iU(i,'iS (;iiy. 118, niitirii. 
 
 tint the powers of township oiimils sli.ill Ih 
 cxerciseil liy liy law niiist lie ennsti mil .isietcr- 
 riii^ only to the exercise of piovcrsnf the cmiiii'il 
 nmler the Miiiiicip.il Act, ami not to puwem 
 which may lie exeniseil unilir a special Act 
 p.'isscil lor other purposes or li\ aimlhir L' >,'isla- 
 tiiie. Till I 'nriiiiriiliiiii llf Ihi' Tiiirii.^lnii ni I'lm 
 Ill-lib- V. Till- Ciiiiiiilii. Ci nil-Ill 11. ir. I , ;io. 11., 
 
 (hy i>. :>(»:t. 
 
 See A'i;/-/o( V. /'(> , 1 ( ». K. 4;{, p. 4!».{. 
 
 '2. (JlllLlllilli/ till l.llll-H. 
 
 (a) I'lj-liiirs 111)1 jiiis.\ril ill lln- liilcresi nfl/ir /'iihl'ir. 
 
 A hy-liiw for elimin)i{ up n Hipiiii'i! iltiilieateii tn 
 the piihlie ainl ilisposin<j; nf p.irt thereof to a 
 cliiM'cli cont.'uneil a iirovisiiiii that the Irnsici -< of 
 the church slioiihl pay all expenses in ci.iiiiectiim 
 with the liy l.iw, ami that it hIioiiIiI mil take ellcci; 
 till the mnnicipalily hail licen inileinnilieil .'i^'.iiiigt 
 loss iiy reason uf pn^Mii;; it iinl ot any prucecil- 
 in^s to ipiash it: llelil, hail on its lace, loi it 
 was plainly not passeil in the pnlilic inleresi, hut 
 hir t)u' heiielit of a particular class. Jn i-i I'lrk 
 mill Ihi Ciii-iiiiiiil'iiiii sij till TfWii of lliitl, -lot,*. U. 
 I'll. 
 
 Sue III ri' Miirtiiii mill Ihe ( 'iir/i<iriilii)ii ol tlif 
 City oj' St. ThuimiH, A. It. WIW, p. '200. 
 
4Hi 
 
 (AIION. 
 
 tlic ('(iniicil 
 
 till' cniiiii'il 
 
 'iiiii uiilidiit 
 
 111. 
 
 Illli'Ilt lll't cif 
 II I liii Hi'iijir 
 
 II'.' I'Ci'civcll 
 l:il>IIIIK llllllk 
 
 rt,r/,rillr, ;il 
 
 ■V IiIm IiiiiiiI 
 Illy .icciiiiiit 
 ml a|i|ili 
 ii'i|iiilil,v : 
 aiiil iiiiiiiiy 
 |in>viii('lai 
 I n|ii ciliiMlly 
 IS, « rrc lint 
 mil tint till! 
 
 < Xli'llilili ((I 
 
 ISO, s. '.'I:!, 
 
 ' '<ir/)iiniHiiii 
 r <l III., I (I. 
 
 r .'iiiil iiiii>i|Mi' 
 y or illcT till' 
 1. ( 'mi.v V. 
 
 •-'77, fiiactinj,' 
 ii'iIn shall la' 
 iiiril as irfcr- 
 it lilt' I'liiiiii'il 
 lit to |Miwi'rti 
 s|H'(i;il Act 
 il III r L' t^isiit- 
 ikIii/i "I I'lm 
 
 f ...,;io. \i, 
 
 iS') 
 
 MUNICIPAL CORrORATFONS. 
 
 4M6 
 
 !•. -J'.Ci. 
 
 ' ofthi' fiiliHr. 
 
 ili'lii'atrii 1(1 
 tliri'i'iit to i\ 
 III- tnisiccs (if 
 ill I'lillllri'lloll 
 ml laki- rlli'ct 
 iiilii'il a^Miimt 
 any |iriHTril- 
 M line, till it 
 iiitcrcst, lint 
 . //( /•-■ rn'L 
 llnll, \*j(i. U. 
 
 iirnliijii ol llir 
 
 (1)) Willi iii'it/ Miivo. 
 
 llcM, that tilt! iip|iliciiiit in tliis k:\\,m\ was nnt 
 jiri'clii I'll liiiiii iimvin;; a;^aiiist thi' liy-iaw liy 
 roasuii III' his lia\ iii;^ cxiin'sscij ;m ii|iiiiiiiii in its 
 fnviini' lii'tiiri! its |iassa;;i!. In rr /'/<■/• mnl Ihf 
 Cir/i'ii-iiliiiii III' ihr Tdii'ii III' Hall, 4(i (^». |{, '.'H. 
 
 (r) 'riinij'or Miii'iiiij. 
 
 Tlic liylaw ilissn!vini;ii iinimiiif soIkmiI scotiona 
 was passcil mi the 7tli .\|iril, iiiiil the a|i|ilii'atiiin 
 til i|ii isli was III it iiiailc iiiiti! I )i'i'rnilM'r fill III Willi;: 
 
 SriiiliUi, that this ilclay, uiii'\|ilaiiii'i|, wuiilil 
 liitvc liiM'ii an an '^M r to tliii a|>|ili>'atiiin, wliii'h 
 may I"' Ion lutr, althiiii;^'h witliiii tin- yrar llxi:il 
 hy lliiAitas till! cxticiiic limit,. /// rf Mr.tl/iiiii' 
 iiirl ill' ('ur/iiirntiiiii nj'llir '/'tiii'iisliiji ii/' h'n/i/ii iii'iii, 
 4.-|(,i. I!. I!»lt. 
 
 Whrrc till' plaiiitiir tili'ij his liill seeking; to 
 ijiiai'i a "I'l'lain niiliii>'i|ial liy law, |i:issi'i| tn ii|ii'ii 
 a I'liail. ami alsii an award iiiailo thci'riimlcr : 
 ll< 111. lli.'it tlitM-ii w.'is ni'i.liiii;r inl'llll^'ist>'nt in 
 tlii.-i. ami till' |>l<iiiitil1' w is mil In iiml tn rli'> * lii'- 
 twri'ii all.irkiiii; tlir liylaw ami at.t.nkiii'^' tlur 
 .iwiiil. W'liiic, liowi'ViT. iimlc'i' suili circiini- 
 ^tam•l•s. tin' |il.iilitiir, liriii'^ lallrl nil i'V llli' 
 ciiurl liM'h'i't, Il 111 I'li'i'titil In .iKai'k tlir awaiil, 
 ami f'liiHiMiliil tn a ili'iTi'i' si'lliin; it ,■lsilll^ imt 
 (inli'iiaL;a new .irliitr atinii, wliiih ai'liitr.itinii In: 
 li.'il {H'lisiriiti'il until amitlii'i' awai'il was ninli', 
 wliiili lie hail nnt ni'ivnl a;,'aiiist within thiMiiiii! 
 alliiwil tlii'infnr: ili'lil. he cniiM nnt altcr- 
 waiii> iiiiM|ilain nf haviii;.; lici'ii I'ni-ccil tn iihutt at 
 till' liiaiiiiL;. Iliirillihi V. ('iir/inriilioii of' l/r 
 'i'.iirii hi/, iii'Cirilif, •_'»>. K.. Chy. I>. H2\i. 
 
 lli'M, that till! liy law in i|Mi'Mtinn nnt Iwint; 
 Vdiil nil it.s f.ii'c, mil' nltia viii's, ami tli" plain- 
 till' iml having attirkfl it fni- inmi' tliin a yiar 
 afli'i its p.hiinL;, lull hiving mi the cnntiaiy .ip 
 |iiiiiiii'(l an ai'liil r itni' tn assess rnini ens ttimi 
 tlii'ii'iimlcr, it li.nl imw ln'i'nnii' ali.-i iliite ami in- 
 I'liiitrnvi'itilili' : lli'lil, alsn, altlinii^'li siieli a liy- 
 
 lav, ill IV nnt 111 Ill itllc'.'liul in law till ri'Ljis- 
 
 tr iti'iii ihi'i'enf, ni'Vi'i'thih'SS imn i(';,;isti'.itinll ilnt!S 
 lilt |ii'ilmi;,' till' tiiii'i .illnw.'il liy It. S. (). ,:. I7l. 
 ». '.Vl'.i, witli'Ji whii'li it may lie i|ii;ishi'i|. ami 
 s nil tiimi il.K". Ill I 1 mint frnin the rouistr.i- 
 tiuii. //,. 
 
 companio.s n^spi'ctivi'ly to exnriipriatc property, 
 the lormi'i' t'xistini,' lor the pnlilie ),'iioil, the lattiir 
 \mi\^ enninii'i'i'ial eiitei'pii.si's only. Tlie uliartci'H 
 nf the latter are ther.'fnic mure rigiilly (;mistriie(l 
 than avr the (inwers of ji niiiiiieipal corpiiratioii. 
 Iliirilhiij V. '/'//(' I'lirpiintlion n/' tlir Townxhtii of 
 Varliji; •-'(» Chy. .SOS. 
 
 I'pmi a cmistnietimi of sijetimis .'{T.T iiinl 4r)(» of 
 the miinii'ipil .Vet, (l{. S. (>. e. 171) a iniiiiieipal 
 I'lirpni'.itimi has power to enter iipiiii liiiil taki; 
 lamls for tlio piii poses permitteil l»y the Aet 
 without lirst in ikini^ (.'oiiipeiis itinn tn the nwiier 
 who is not entitli'il to insist upon p:iynieiit lui a 
 emnlitinii preueileiit tn tile entry of the eorpora- 
 timi. //;. 
 
 Where ii iiiiinii'ip.'vl (.■(irpnrnlinn liai) ho uii- 
 tei'eil, anil a hill to set a iile an awanl for im- 
 proper i'i,.iiliiet of the arliiti ilnrs.iiiil in.ule piaey 
 
 nf ennipelisatinll t'.iileil, the c ilirt ( 1 'inililt'ont, J.) 
 on iiisiiiissin„' the liill nnli reil the pi liiitilV to pay 
 all I'lists, as the enrpnr.itii.n h.nl prnpciiy cxer- 
 eiseil their slatntniy ri),'hts. The ipiestinn in- 
 viiK I'll lieiii;; of a piililir II itiir ■, tile fai't that tliu 
 .•iw.iiil w.is for an animrit wliieh in other eases 
 wmilil lie lieneith the ilii.'nity of the eoiirt, was 
 not any ie;ismi why the court shmilil nnt enter- 
 t liii the suit. //;. 
 
 (<1) r,W.;. 
 
 Cnsts W'-ni not askeil fur in the rule, tliniii,'h 
 tlley Were at It.ir : lli hi, th.it as insis are in the 
 (iisi'ii'timi nf the .'Diirt iliuler the .liiili.aliiie .Vet. 
 tins w i.^. no idijei'tion. In rr /'ill,' mill Ihr Cm- 
 jmnili .., .,/ l/,r Tmi'ii of' (.'nil, 4(i •,• It. 'JI I. 
 
 X. (iKNEIUI, I'liWRim AMI Dl'TIKJ OK t'0!..'OHA- 
 
 riiiNs. 
 i. Em'mi'nt homnin. 
 
 A hy Viw p;uim'il tiy ii miiiiieipal onriioratioii 
 eaiiiiiil have the etleet nf I ikiin; aiiv (.amis of 
 the I 'I'liwii ill aililitiiiii tn lli.r»e appinpriateil l>v 
 till I i-.iwii fur the piirpnse ot liigliu lys in oriler 
 til till ii|ien;njr lip of till; cnuiitry. /{ncv. Trim, 
 •-•Ttliy. MV 
 
 There JH a iliHtiiietion lictween the rii,'hts i- 
 
 lorri''! upon iniiiiieipal eorporatimis ainl railway 
 
 '1. li'r iiil'iini III /{ii'iliniiiH Lnn h h'.i/>, ',., Ap- 
 
 /irn/iriiiliil In /'iihlir /'iirjums. 
 
 See /// rr lirmn'iii 1 1 'il., mil llir Vorimrnt'ntnoJ 
 till ('ill/ nf DlliUVil, I (►. It. 41,"). 
 
 I .'{. /{iiiiii.Hi's II) Miuuil'itrlnrliiij ('iiiii/ninli'.i. 
 
 ' llelil, aHiriiiiii>{ the ju'Il,'iii 'lit of I 'n",:!! loot, 
 ! v. •'., th it a niiiiiieipility, iimler M \'iet. e. 4S, 
 
 s. ;{72, snh-s. ."), ()., li IS p iwer to I'lnl money for 
 ' the eneonr.iLrenieiit of ;i in iniifaL'tiirin;^ estalilish- 
 
 'iiinl, notw itlist.ui'liiiL? tiie use ni the word 
 
 " li.ilius" theieill. wliieh m le .lot lie -ess.uily illl- 
 Jimt a ^'ift ; ami they ar.' tlierel'ure li.ilile. mi de~ 
 lientiires issued fnr tile piirpnse nf raisiiii; iiinaey 
 tn lie sn le.it. The rate nf interest nit the de- 
 lielitures wis seven per eeiit : -Held, that see. 
 •J17 nf •_".» .t ;!l» \'iet. e .'il, his nnt li.'iMl repeal- 
 ed, thna'^h mu'kel elVetci ill l.lie si'he.liile [tro- 
 lixed tn, .mil not re en leted ill, '.i 't S'let. e. 4H, (>., 
 and that the alinve rate w.is therefore law' ill. 
 l^ll ere, whether the power to j^ive would llii„ ill- 
 elude power tn lend. If there had lieeii "•, pnwer 
 tn lend, :iml the imirtir.i:^'.: t J: !'. !.y Clie iniiniei- 
 p.ility tn setaire repaymi'iit nf the ;nnney lent 
 W.IS inv.ilid : (,>ii,iie, w Intlier tin . Wniild aH'nril 
 any di feiiee to tile delielitill es ; and l,>iia're also, 
 whether the miiiiiiipality liiviiiL; received the 
 consider.lt'nll stipill.ited fnr, the ilelielitlire llnld- 
 ors niii,dil nnt have sniiie reimdy .ijiainst the 
 niiinieip ilily, thmiu'h imt liy direet suit on tliu 
 delieiiliiies. Srnlhsh Anirrirnii lin'rsliiirnt Co, 
 V. aor/iiriiliiiii ol'llir Villii/r iij'l'jlurn, (i A. R. (»2S. 
 
 Where tlie plaintilFs, a iiiunieijial enrporatinn, 
 p.issed .1 liy-l.iw t.) raise .'i|i'_'(l.(l(ll), tn he ^{ivi'ii to 
 the drfeiiil.int tn aid him ill earryin<{ on certain 
 nianiif I 'tures in the niiiiinip ality, suliji 't to a 
 eonditiini that he slumlil ^ive a mort;;a;;«! mi the 
 pi'i'inises Inr .'SJO.lH);), ami a linml fni a fiirthur 
 Hiini nf .'<tlll,()IHt, which said seein ities slimild he 
 iMiinlitiniied fnr the earryiiiL; nil nf siieli iiiinil- 
 i'ueture:! for twenty years, and that iliiriii;, tlie 
 
4«« 
 
 MUNK 'IPAL COnrOlJATlONS. 
 
 48R 
 
 
 a-' 
 2'' 
 
 e»itl {ii'iidil hv. slioiiltl ki'i-p invt'Hti'il ut least 
 Ji|;.'tO,(l(M) ill tlif factory ; and tlic <luli'liiiaiit giivc 
 tliv liiiliil aiitl lli<irt;;age, coliilitioiifil iin :i;;l'('('il, 
 ))iit the latti'i' not 8|i<u'ilyiiij,' I'ur what kiiiii it wa.s 
 a Hocurity, ami iiive.stcil tliu .S'lOiCKKI Imt ilid imt 
 carry on llii! iiiannliic'tinvs aw agrofd : -llcld, 
 tliat l{. S. *►. I!. 174, H. 4."it autlioii/cd tlio takiiij; 
 of tiiu liiortga|;o liy tlir ccii'iHiiation; tii:it it must 
 Ik! taki'ii to ))(■ not a charge loi- any sjiceilii^ .sum, 
 but a Hei'iirity for any ihiniM^^cs the |ilaintit)'H 
 liii^'ht have HiiHtained liy tlie defemlant'H default 
 to an extent not j^reiiter than .'<i(),(i(M); tliat tin' 
 eourt would relieve against a forfeituie of the 
 ♦-■state ; and there should lie a reference to ascer- 
 tain the ainoniit of the said diimages, and on 
 iiuii-payinent, a sale of the (ireniises, '/'//( ( ur- 
 jioriiliiiii iif Ihf \il III I II I if li III SKI Is V. Itniiitlil it 
 «/. 4 0. K., Chy. \).'\.' 
 
 5. Drnhiiuii uf Liiinln. I 
 
 1 
 (a) I'llitiiiii. 
 
 A petition was preseiiteil under section flSO of 
 the .Municipal Act for the draining of certain 
 lands, liy coiiHtrueting a drain in a certain diicc 
 tioll and tleepeiilng a stream, 'i'he petition was 
 signetl l)y eighteen persons, lieing a majority of 
 those shewn liy the assessment roll to lie In ne- 
 lited by the work, vi/., thirty-three. A resolu- 
 tion of thecouneil was passed undii' w liicli .surveys 
 and estimates were inadu. Sulise(jiiently live of 
 the petitioners withdrew.some by iietitioning fora 
 8ii'.i[)le cleariuL' of the bed of the stream and some 
 )>y inlormingthe council thatthey would dig their 
 oivii drains theniselvi's. jJy asuli.sei|iient petition 
 three more desired to do the work theinsi'lvcs. l»y 
 another petition seven inteiistcil person lesircil 
 to add tlieil names to those who Wire in fa\our 
 of tiie w<irk. The names of the six of the origi- 
 nal petitioners remaining were not in the sched- 
 ule to the by law of tho.se to be binelited. This 
 left the number of petitioners at eleven. 'I he 
 council having proeured a second estimate, shew- 
 ing that by iliverting the direction of the drain 
 the work eould be done at less expense, jiassed 
 a by-law reciting that a majority of those to 
 be beiieliteil had petitioned, and [iroviding for 
 the eonstruetion ol the woik according to the 
 altered plans. J\o debentures ha<l been issued, 
 nor eoniracts let, w hen a motion was made to 
 quash the by-law. Held, that the bylaw should 
 be ipi.tshed ; for (I) the council had no power 
 to uuthori/e the undertaking of any work other 
 than that petitione<l for, and if that was imprac- 
 ticable or too costly they should have reliised 
 the petition ; CI) the ])etitioneis had the rigiit to 
 withdraw at any time after subsciibing the 
 petition, and before the contraet.s weie let <ir 
 the debentures negotiate<l, /. c, w Idle the council 
 had control of the matters, the preliminary 
 surveys ami estimates being as much for the 
 information of the petitioners as of the council ; 
 (S) a sullieient number of petitioiiei's having 
 withdrawn to reduce the niimln'r below the ma- 
 jority of those to be belielitcd, the by law untruly 
 recited that a majority, Ac, had petitioneil. 
 lie Minim r v. 'J'/n- Toinifhiii uf iViiiii/lii t, 4(i (^». 
 B. 457. 
 
 A petition fora drainage by-law wassigiu^d by 
 ft majority of the owneis of the land designated 
 ill the petition, but the apiilieant was not one of 
 the ^letitioners, nor was his land part, nor did 
 
 he reside on ,'iny part fif the land descrilml in 
 tin- petition, but the surveyor who made the 
 exaiuniation and prepared the estiniatt s reported 
 that his land would be beiielited by the Works, 
 and he wjis aecordinglv assessed, and the byliiw 
 was tinidly passed : -field, that the by-law was 
 valid. /// ;•(■ l\ liiti iiiiil lln' (.'ni'iiuriitiiiii <./' lliv 
 \ ToiniKliiii iif Samlirii-h h'lixt, 1 (>. I!., (J. J{. l.».,"i;i(). 
 
 (b) I'lihlii'iilhtn iif /ly-Liiii'^. 
 
 The omission of the words. " dviiug the tiini 
 next ensuing the linal passing of the by-law,' 
 from the notice w ith regard to a clraiuage by-law, 
 under 11. .S. (». e, 174, s. ">;{|, does not render 
 the by-law invalid. //' MvLnin iiiul Ihi- i'ur- 
 jiDfiiliiiii lit' till'. TiiiniH/iiji ii/' Ojts, 4,") y. \i. UlT). 
 
 NV'here a by-law liiially passed iliHers from that 
 published only in resiieet ol eiianges made in llic 
 assessment by the court of revision ami coiiiitj 
 judge, it is not necessary to publish such bylaw 
 again after such cluinges. //*. 
 
 A pro|iosed by-hiw of the township of lloeliis- 
 ter, in the county of llssex, rel.iling to draim^;.'!', 
 was published in a newspaper in W'indsof, ,i 
 largt! town, and, for all other than judicial liinl 
 municipal business, practically the county town, 
 ami situate two miles from .Salidw icli, the comity 
 town. I here w'.is no newspaper published eillici 
 in liochcster or in .Sandwich, or in the next 
 ailjoining municipality; but there were iia|i(i!< 
 published in several small villages, soinewint 
 nearer the township of Kochestei- than \\ iiid.-nr, 
 but their circulation was much smaller in llociii.<. 
 ter than that ot the W'iiid.sor lia|ier : Held, tJKit 
 the [lubliiatiou wa.-i sullieient ; since if the wmiLt 
 '• ail|iiining local miinieipalitj'," as used in t'J 
 \'ict. c. .'U, s. "27, were construed "next aiijuiii- 
 ing, " iVc, it would be impossible lo pnlilisli liif 
 bylaw as directed by the Act ; audit did imt 
 form sullieient ground of olijcction thereto, tK:it 
 there were other p.ipeis a few miles ncarir t" 
 liochester than Wiiulsor was. Ji'i h'ulli run iiml 
 11,. Tiiini-tliij. ol' lli,il,i.slir, -Ki Q. |J. •J7<). 
 
 U was objected that no copies of tht; by law 
 or notices attached were posted up as reipiind, 
 but the applicant knew <if the by-law bcioic it 
 (lassed, and aiijiealcil from his asseshim iil to tin- 
 court of revision :- Meld, that the objertiuii 
 should not be given elfect to. Inn W'liili mul 
 j 'Jill <'oi'i"ii'iilii)ii iif fill- 'J'ii,rii,i/iiji of Siiiiilin^li 
 
 Eii-si, 1 (». j;., (J. i";. 1). :m. 
 
 (c) Axsixsnii lit. 
 
 Where the engineer who made the assessiiiciit 
 under a drainage by-law was not iiotilied, .iml 
 was not present at the Court of Kevisioii, Imt 
 was present on the lipjieals therefrom to tin' 
 eoiiiity judge, which were taken by all whoai'- 
 pealed to the Court of I!cvisi<in : — Held, im 
 ground lor setting .-isidc the by-law, Iti 
 Li nil mill ('iiijiijiiiliuii iij tliii Tuiriisldj) of <.>)i' 
 
 (). 15. :}i.'o. 
 
 Ml' 
 
 The engineer is the proper pai ty to make tiie 
 asses.-ineiit. The jiriiicijilc on which the as^^^'^s 
 nieiils Were made, of assessing against a wlinlc 
 lot or a part of a lot owned b\ mic person, wIkii 
 only some of its acicige was lieiielited, the valni' 
 ol such bciielit : — Held, not erroneous ; and thi* 
 
4S8 
 
 V. laiiil (k'Ht'rilitil ill 
 •yor mIhi iiiiiili' tlic 
 I'stiinatiH ripuitcil 
 
 •litl'll 1)\ tllf WnlivS, 
 
 Kscil, iiriil the l>\ liiw 
 
 tli.'it till- lij-lin\ was 
 
 ( '(trii"riilii,ii i.i' 11,1 
 
 (1. i;., «,>. 15. l»..-;i(). 
 
 M. "I'viing tliu tiiiii 
 ii;; of till- liy-law,' 
 
 til ii iliiiiiiagt; liy-liiw, 
 il, (loL'H iKit Riidir 
 
 f I.I nil mill t/lr I'm'- 
 
 iili-S 4."i g. 15. '.Vi:,. 
 
 »HUiI (litiei'M fi'i'lii that 
 
 cliaiij,'f.s iiiailu ill till' 
 
 uviHiiin iiiul ciiiiiity 
 
 iiiil>liali HUcli livlau' 
 
 tdWIIHllip of KoL'lll^- 
 
 rilatiii^! In dr.iiiii.p'. 
 lainT ill W'iiiil.snr, a 
 icr than Jiiili(.'ial ;iiiil 
 
 illy tllr' CnUlltN lii«ll, 
 
 ">aii(l\vii'li, the iMiiiiity 
 
 \\\rV lilllill.shi'il (.'Itinl 
 
 icli, or ill thu next 
 it tiicrc wire iiii|mii< 
 1 villa;,'(s, .soiiifwh.it 
 
 ItStt'l' IIkUI W lllilMPl-, 
 
 nil Kiiiallir ill Itoiiu'.'-' 
 I' iia|ii'i' : lli'lil, iliat 
 lit ; .siiu'i! if till' vmils 
 ilitj'," a.s iisc'il ill \i 
 istnit'il "next aiijuiii- 
 ih^ililc III jiiilili.sli tilt' 
 ' Act ; ami it iliil imt 
 lijcftioll thiritii, tli:it 
 fuw inik's nran 1' tn 
 ■as. /i'« liiilli nio (iiiil 
 W Q. Ii. :i7!». 
 
 tii|ii(s of the liy law 
 (iKtcil iiji as ri'ijiiiri'il, 
 tliu liy-law liiioiv It 
 his a(•M■^.lllu■lll til till' 
 , that till! olijtitinii 
 to. /// n Wliiti mill 
 Oiciixliiii iij Sii nil nil li 
 ). 
 
 Ill lit. 
 
 iiiado the assessniLiit 
 \a.s not niitilifil, ami 
 lUi't of llt'visioii, but 
 als thcrrfiiiiii to thi' 
 
 taken hy all w Im ap- 
 Iiovisioii : — llclil, Mil 
 ;1r' liy-law. Iti .V''- 
 
 L' Toiriishil) Oj (J}l.*,i'> 
 
 ler i>ai ty to make tiie 
 ; on which the a!'i:chs 
 ."Ming against a whuli' 
 ; liy one jier.soii, \\ Ihii 
 ..-, licnclited, the value 
 t erroneous ; anil tl.i» 
 
 IS!) 
 
 MUNICIPAL CUUrOllATlONS. 
 
 490 
 
 iironiisc u" '}■; to cerUiin of tho iictitioncrn for thu 
 If ihaiii. wh.i xi^'iieil hiicIi pi'titioii and Hiilmiittt'd 
 to imrn'MMiiieiit on the faith of muo'i promim', wiw 
 no jiiNtilleation of mieh iliveri*ion : — Meld, liiatly, 
 that this wa.H not a caNi.' for arliitration, or, at all 
 eventH, not a eaxi^ in which the ]iliiinliti' waa 
 ImiuikI to prooucd ill that iiianiicr. //'. 
 
 (J. .Siirii'M. 
 
 wiiiild ;it all events have formed no gioiiml for 
 (|iiasliin',' the liy-law, as this was a matter of 
 wliii'h i'oiii|ilMint iiiii^ht have been niaile to the 
 Ciiiirt of jlcvisioii. //<. 
 
 It was alli'i;ed that one nienilier of the eonneil 
 was laip'ly interested in the iiroperty to lie dr.iiii 
 oil hy the hy-law lillt, --Held, that im interest, 
 which »|iriii'^s solely fr iiii his lieiiij,' a rate|iayer, 
 cm disijiialily a coiiiicillor or a inenilicr of a 
 Court of Itcvisioii from iierforiiiini,' his duties as 
 such. /''. j 
 
 , ,, , II, 111! Sec. -ICd, siih. •«. 'J, of :tl» Vict. c. -IS, eiiiM!t« that 
 
 On aiMicil to tli.'( ounty .lud-c lie reduced the , ,i,e council of ev.,-rv citv, town, and incorporaUMl 
 as.cssMi.nt on one lot K^\;;!\\y '^'''f;,/'''' I',";'''; ' village, shall have |iii'wcr to pass l.yhiws for 
 
 " asscssiiij^ upon the leal property to lie ininiudi 
 
 V. ciinscntiii:.', .ilthoiii,'!! accordiii:; to the cviilciice 
 it should hue lici'ii further rediiceil. In distri- 
 liiitiiij,' the 'imounts struck otl' ammn.' the ..tlnr 
 IHnliirties assessed he added nothillL; to the .-is- 
 ai'ssiiieiit lit' this lot, so lixed liy consent, Imt he 
 ocrtilicd that the other owners were assessed for 
 lis^ th.ui they would have liccn Imt for I'". 'scon- 
 .s.Mit : Held, tliat K. S. (>. c. 171, s. ."»:!(), siili-s. 
 i:!, li.'id liccii practically eoiiiplieil with. /'/. 
 
 (d) (Jllur ('<l.ii:i. 
 
 The ai'liitiators appointed liy the plaintiirand 
 ili'i'iiilant niiiiiii'ipalitics, on an appeal liy the 
 il.'li'iidants from the lepoit of the siirv cyor. made 
 an award iiui'siiant to the .Municijial Act, where- 
 liy they ailjiid^'cil that the ileejieiiin;,' ofaci-i-ek, 
 \<'.. Iienelitcd lands in the defendant muiiici- 
 pality. and (hat the latter should pay therefor 
 s;;.'((l ; Imt the award did not specify the lands 
 wiiicli in their opinion were so Iienelitcd, nor 
 oliai'gi: such lands with a just proportion of the 
 I'int of the Works : Meld, that for this reason 
 tlij award w.is invalid. '/'Iii i 'iir/ioriilinii n/ llif 
 Tiii'iflii/i III' rinii'lnii' \. Till ( 'iir/iiiriitliiii f)/' /III' 
 Tiinixliiliii/'Siiliii'!/, 1 O. It., i). n. I). •2V.I 
 
 Held, that tl 
 iiif: 
 
 oi' the jiid^'e of the county i-iuiit on ajipeal there- 
 fi'iini. //( /•' W'hili mill Till' ('iii'/iiiriiliiiii n/' tin 
 Tiiiniilil/i III' Siiiiilirirli liiisl, I (>. It., (^». 15. \) 
 •MtO. 
 
 'J, i;o''rcspoiiil« with the 
 •-' : Held, .VrmiMir, J.. 
 
 eld, that the ijuestimi wliether the lands are • purposes, without any ]ietiti(>ii therefor. 
 lit heiieliteil is one for the court of revision, /;;•,..-,'.- v. 'I'ln' (.'urjiuriiliiin of tin: Cilu of Ti 
 
 ately lieiielited liy the making', >Vc. , of any eiiiii- 
 nmn sewer, iS:c., "on the petition of at Icaitt 
 twothii'ds in nuinlicr and one-half in valiiu of 
 the owners of such re.il property, a special rate," 
 i*:c. The siiti-s. is amended, so far as tlio Hanic. 
 relatl^s to tlii! city of 'roronto.liy JO N'iet. e. H!), s, 
 'J, hy inserting,' after the words "owners of mieli 
 real property " the words " or where the sanu! in 
 in the oiiinion of the .said eonneil iiece8.sai'v lor 
 sanitary or ili'aina;,'e jmrpo.ses." 40 N'ict f. (i, 
 I respectin;^ tin; n^vised st.itntes, pasHed in thu 
 ! same session, repeah-d .'{(! \'ii-t. c. 4S ; and II. 
 I < (. c. 17-1, H. "I'll, Sllll-S. 
 repelled s. '(Ill, silos, 
 iloiilitin^', and ('anicron, .)., ilissentin;^, I. 'I'liat 
 under 40 Vict, c li, s. 10, the It. S. ( ). , waH mill- 
 stituted for the repealed .-Vets ami the aiiiuildillg 
 lAct applied to the It. S. ( >. e. I7-I. '-'. Tho 
 ' anieiiilineiit in 40 Vict. e. ,1'.t, was a rcferoiico ia 
 a former .-Vet ruiiiaiiiin;; in force to an eiiactinunt 
 j repealed, !>nd ho a reference to thu uiiaetliiuiit in 
 I the revised st.itntes, corresponding; to the s. 404, 
 jsuli-s. •_', within s. II of 40 Vict. e. (1. tl. That 
 j the city of Toronto, therefore, could jiaHs a by- 
 law in I.S7!( to construct a .sewer, when iieuea- 
 sary in their opinion for sanitary or drainage 
 
 In rt 
 
 1.5 (,;. H., .'i:!. 
 
 7. A iiHiiiiiiTrit. 
 
 Where, on the petition of the jilaintilF and The defendant having Hold land by njction 
 ether rat-payers, a township corporation had under fi decree of the Chaneery Division of tho 
 pissed a liy-!aw for the coustruition of the H i Miuh Court of .Justice, was convicted of a broach 
 liiaiii, and tin; assessment of the 1,-inds to be ' of the bylaw of the county of Muriin, passi-d piir- 
 hniclited thereby, part of which the plaintill' | simnt to the .Municipal .-\i;l , U.S. (). c. 174, 8. 4(!5, 
 nwiicd, but the I'lrain had not been completed, ' nubs. •_', providing,' that it should not be lawful 
 tliuiigli a reasonable time had elapsed, and a I for any person to sell by publii; auetiiiii any w.ires, 
 IMirtioii of the inoneys a.ssesseil had li(/eii applied [ goo Is, or merchandise of any kind without a 
 111)1111 '^ certain other drain, not mciitioiied in the ficcnse : — Meld, that the conviction waH clearly 
 petition, the report of the juiblic land surveyor ' liail, for the bylaw did imt refer to lands; nor 
 made pursuant to K. S. < >. c. 174, s. ."fJll, or in would the statute have authorized such a by-law. 
 
 the said by-law, and of no value to the said peti- 
 liiiiier.s : — Held, that the plaintill' was entitled to 
 an order eompelliiig the corporation to complete 
 the 15 drain according to the by-law, to an in- 
 jiiiictiiin to restrain further misapplication of the 
 III ineys assessed, and to an account thereof, for 
 til it the bylaw created a trust which had bei;i, 
 violated : — Held, also, that the plaintill' was en- 
 titled foinaintaiu the action without theattorney- 
 geiieral. Siii'illi v. Thr ('iir/iiiriiliini nf llii: Tuii'ii- 
 "hill 'if Itali'iijli, 'i O. K., Chy. \>. 40"). ' 
 
 Held, also, tliJit the fact tli.it tlie moneys so 
 assessed, were so diverted pursuant to a resolu- 
 .tiiiii of the cuunoil, passed in accordance with a 
 
 y.'i;//'/(i( V. ChajHiiiiii, 1 (). it., (i. 11. li. 58'2. 
 
 8. Trinm'it'iU Tnulfra. 
 
 Where goods are ennsigiied to l>o sold on com- 
 mission, and they are sold in the shop or premises 
 of the consignee, and ny liim or on his behalf, 
 the owner of the goods or the inan.iger is not an 
 occup.int of such pri'inise:!, nor a transient trader 
 within the Municipal /Vet (It. .S. (>. c. 174, a. 
 4l!(), sub s. .">H, ,-is aniendiid by 4'i Vict. c. 31, 8. 
 'li), merely because he aecoiiipanius the gou<la 
 ami assists in their sale ; — Held, also, that the 
 
401 
 
 MITNICIPAL (JOHI'OllATIONS. 
 
 m 
 
 vnliility of llui liy-liiw iiiiKlit Uv i|iu»ti(mi;il mi a and hh muli tlit-y miiy iiiforcc tlir prdvisinhs (,i 
 
 liT il. HK. .'{ to 7 <if lliiit Alt uitliiiiit l>y law ; liiil.il tlii\ 
 
 c 
 
 r 
 
 I f*C 
 
 ikotiiiii t<i i|ua.sh tlio ciiiivicticiii iiiadu um 
 /{,iiiiia\. Ciilhlini, 45 (^ It. I!». 
 
 J, liri>ii){lit nil ailioii a^'ailittt (!., tlic |iiili('t! 
 inA^iittriti^ of tlif city of St. .John, fur wioiinfiilly '■" 
 
 cminiii^ till' plaiiitil), a iiiiiiiiiiriMul li.ivcllrr, to 
 Ito uriuHtcil .mil iiii|iii.s.iiitMl mi a warrant i.sMiU'il 
 uil » ouiivictioii l>y tin' jMilicr iiiiiLiislratr, lor 
 yiolatioii of a l>y-la\v iiiailc liy tlii' i niiiiiiini cnuii- 
 uil of till' city of St. .Iiiliii, nuclei' an allcj^cd 
 authority I'milVrrcil on llial. Iioily liy ,'i;i X'ict. •■. 
 4, pafwcil l(y lln^ Ic^'islatiirc of New Urnnswick. 
 Suction ,'{ of IIk' Ai't .'iiitliori.'icd tli<' ni^y'M' ol tlic 
 city of St. iloliii to liccimi^ iMTHoiiM to iiMc ally 
 (irt, trade, Xm'., williin the city ol St. .loliii, on 
 piiymcnt of .xiicli siiiii or .siinis im may from time 
 to time lie lixeil and delermined liy the common 
 council ol St. .lolin, fcf. ; and .s. -J eiii|io\vei'ed the 
 li»ayor,\i-., liy any liy law or oidinain'e to lix.iiid 
 ilult^riiiiiie w hat .snin or siiiiih of money should he 
 from time to time paid for lieciiNc to iihc any art, 
 trade, occupation, itc. ; and to declare how fceH 
 slloiild Ih' reeoveralih^ ; and to impose peii.'ilties 
 for any hieai'h ol the same, \c. The liy l.irt or 
 ordiiiaiii'c in ipicsl ion discM iminated hctweeii i'c!<i , 
 dent ami iioii ri'.-<ident inereli.intM, tr.'idelM, Ac. ,liy 
 illipoiiiiua liccii.-c tav o|.''<'Jtlmi the loriner anil ;< III 
 oil the latter : Held, lh.it as-iiimiiij^ thi^ Ai^t .'<.'( 
 Vict. c. 4, to lie intra vires of the legislature of 
 New Itrnnswiek, the liylaw made under it was 
 iuvillid,liecaiise the .-Vet ill (|llestlon f^ave no power 
 to the eoiiiinon eoiineil ol .st. .Inliii, of diserimi- 
 iialioii lietwucn rcHidents and iioii-iesiduiits, uiich 
 an they had uxcreiseil in this liy law. JoniiM v. 
 (Jilher/, S S. (J. K. Uflti. 
 
 n. .]fii,ii/H. 
 
 'I'lic iimnioipal council of the city of liamilton 
 |i:u)(<cd a liy law that no person should, upon or 
 iiftur sale thureof, deliver any utovi^ wood in or 
 from any w.'ii^'gmi \c,, otherwise tli.'in in or Iroin 
 u \l'aL;^oll of a certain capacity, tin: sidi^H of w liicli 
 should lie eonstrui'ted ot slatH of a curtain w idtli 
 iiinl u (X'rtain distance ap.irt from each other. 
 The tluluinlant was I'onvicted of a hreaeh of the i 
 byljiw :— Held, that the liy law was ultra vires, ' 
 [or thouj^h tilt! council had tliu rijjlit iiider the i 
 Municipal Act, l<. .S. (I, c. 174, s. 4i)ti, to provide 
 fur the weiuhin.;; or iiieaHuring of wood, they had 
 lio power to enforce delivery, upon or after sale, 
 in ii particular kind of waggon. Itniiiui v. Smith, 
 4 (). K., Kf. K. I). 4U1. 
 
 10. An-tiu' III' lifvad. 
 
 By-law 1 1'_'8 of the city of Toronto declared 
 what the weight of loaveH should he, and enacted 
 that the weight of each loaf uold or otl'ered for 
 sale should lie stamped thereon, and that all 
 bread oll'ered for sale of any less weight than the 
 weight fixed by the hy law should he Hei/.ed and 
 forfeited : — Held, that the hydaw was intra vires 
 and not unreasonahle, //( /'c .Vk.vi/iiV/i mid Tliv 
 C'or/«irnli(in of lltr Villi •>/ Toronto, '2 (>. I{., i). 
 B. D. 192. 
 
 II. Pahlir II, alt I,. 
 
 Tliu nicnibcrs of the council of any niunici- 
 [MtUty are health olliceru of the municipality hy 
 virtue of the I'lihlic Health Act, K. S. U. e. IIK), 
 
 leieg.ite tin ir powers to a committee, they imiht 
 do HO by a iniiiin ipil by l.iw. They ciniiot. how- 
 ever, delegate any liowcis except those which 
 they exercise under the I'liblie Health .Vet. .\ 
 by law was p isseil by the miiiiicipnl cuiiiieil nf 
 the city < f Hi'.intloi'd regulating tlic clciiiijn,' of 
 privy vaults, and iiiipo-^inga line of not less tliaii 
 .•*!, nor mmc than ^7t[) for a IucmcIi of its prnvi- 
 hioiis : III Id N.tlid, .IS the by I iw was one under 
 the .Municipal .\rt, ,'Uid not nmlcr the I'liMa 
 llialth Act, wliitdi rc.^tricls the |H'ii:dty to .■<.'(l. 
 The lij law, as set out ill the report. Was oh- 
 jecl ionalile, as delegating to persons not im inhei's 
 of the colllli'il, the lioal'il of liedtll, the piiueiii 
 w h icil, as mil llicip:d mat Ills, b( longed eNclnsively 
 to the coiincil. In if MucLi ir.ii ninl lln fni/inni. 
 tiolllll' lllf I illjlif UlUlllfulil, I (I. It., (/. Ii. I>. .•tS'.'. 
 
 I'J. .Vio'.Mnc'i.". 
 
 The defend. lilts |iassed a by I.iw piii'>iiant t^ 
 It. S. ( ». c. 171, s. Ilili. siili s. 17, as aiiielidi'il hy 
 44 \'ict. i\'lA, s. I"J, which by law, by .see. '.' prii. 
 vided that "No person shall keep, nor shall 
 tliel'i! be kept within the city of Toronto Jiiy pig 
 or sw ine or any piggery " ; lleM, thaltln'by law 
 w.'is ultra vires, as being a ;;cni'i'al pinhililliiiii 
 against the keeping of pi;4S, anil not iislrietcd to 
 I'ases that mi;;lil provi; to he niii.s.inies. Me- 
 KiiKjIit V. Till liti/ol' yo/-"/''i/,:!<».l!.,»^. Ii. I). •.',S4. 
 
 liy sec. ;i, siib-s. 'J,tlie by-law provided that im 
 cow should be kept ill any st.iblc, iVc., situate .it ,i 
 IcHs distance than forty feet fioiii the neari^std wel- 
 ling house, and where two cows were kept lliat 
 the stable slioiild not Ik less than ci;;lity feet fimii 
 the nearest dwilling honsi: Held, tliitit. waH 
 iinneeeMsaiy todiclare expressly that the keeping 
 of cows within such distances wiis or might he a 
 nuisance, but that the pnihibitimi was in ■ Ihit 
 such a declaration, th.it the distaines pi'e.-iiilnil 
 were reason, iblc, and tli.it the by law as jo that 
 was nnobjeclion.ible : Seinlile, Ih.it it W;i.> imt 
 bad in being sogeiier.dly expnssed that it wmiiil 
 restrict the owner from keeping cows within tlic 
 prescribed distances of his own dwelling hmi.sL', 
 and Held, that this objection not being clear 
 should not at any rale bir allowed to prev.dl i» 
 favour of the appellant, w hose ease w ,is not shew li 
 to be within the telliis of the objeelioli. //>. 
 
 i;i. Ciilllr liunuliiij III Lariji . 
 ,Sec Crowe v. Staler et III, 4l> (.». II. 87, p. -I.T 
 
 14. W'iillh of Til-ex. 
 
 A by-law of a town provided that no >.iie 
 should use any waggmi, &c., upon any of tliu 
 streets of the town bir drawing brick, stones, 
 &e., when the weight of the load should exceed 
 l,5U0 pounds, unless the tires of the wheels were 
 uf a specilled width ; but the by law was not to 
 apply to any waggon conveying liiniher or gomlri 
 from the mill or inaiiufaelory thereof into the 
 town if distant nime than two miles froin tliu 
 town limits, nor to any pei'.son [lassiiig tluuiigli 
 the town with vehicles' liiaded with the .said 
 articles: Held, b,id, as discriminating us against 
 residents of the town in favour of others: Held, 
 also, that a culiviction under such by-hiw was 
 
492' 
 
 493 
 
 MlTNICIl'AL COKI'OU VTIONS. 
 
 l!M 
 
 |iroVIHIllIiM (if 
 
 liiil. ii' tli<'> 
 
 ■ tlliv liiilst 
 I'.'IIIIIdI, Ikiu- 
 
 tlniMi' \vliic:li 
 
 iilth Act. A 
 
 111 ciiiiiii'il iif 
 
 • I'lr.lllili^ iif 
 
 lliit less lli.ili 
 
 III' its |ii(ivi. 
 
 ■IH line llljilci' 
 
 ■y till' I'liMh, 
 ■II ilty t^. sjo. 
 
 'll. \V,-|S (ill. 
 
 Mot iiii'iiilicrs 
 
 till' |H1\M1H 
 
 iMlllsiM'ly 
 
 I//,, I ■,„■,„„■„. 
 
 </. ii. I). aSL'. 
 
 |iiii'>iiaiit tii 
 '< aiiii'lulril liy 
 
 ly .see, •_' |i|(i 
 I'l'. iiiil .'^ll;lll 
 Mniilii ,iny ['i;; 
 i.it I lie liy law 
 ll |il'<<lilliiliiiii 
 t irrtllii-t.il til 
 
 iliris. Mr 
 
 <.>. Ii. I>. L\S4. 
 
 IV iili'il tli.it nil 
 
 I'., nitiiiifi' ill a 
 
 ii'int'^tiUn'l 
 
 III' lv('|lt lll.lt 
 
 ylity iV'ci I'liiiii 
 
 111, tll'll ll. \\,W 
 
 at tile kiTjiiiijj 
 III' liii;;lit lie a 
 1 WM.S in rlici't 
 ITS |1|'('SI'I iIh'iI 
 
 law a.s In that 
 at it ua>^ iiiit 
 I that it uniiiil 
 Us » itliin tlu' 
 M'llin;^ lidii.sc, 
 it liiin;; iltar 
 I til |ii'('V.iil ill 
 tta.s not ^lii'wri 
 Hi. 111. //.. 
 
 II. S7, i>. -m. 
 
 that nil wiiu 
 11 iiiiy 111' tliu 
 liiirk, .>,|iiiii.'s, 
 
 ulllilllll I'.M'l'l'll 
 
 i; w hi'ils «ui'e 
 IW \^a^4 lint til 
 iilii.'!' or ^iKiih 
 ci't'iif iiilii tliu 
 iluH I't'iiiii the 
 .ssiii^' tliniiigli 
 K'ith thr .said 
 tiiigasauaiimt 
 thi'iH: Ik'lil, 
 1 liy hiw wa8 
 
 InuI, for not Mill-will^ tliiit ilofi-iKlimt uhh imt a 
 iN^moii |i:k>4tiin>{ tlii'iiiigli tliii tiiM'ii, mill for iiii|iiiM' 
 iii)( iiii|iiiHiiiiiiirnl with haul lalioiir. Itniiiiii v. 
 
 /'!>■. ' " '^ - *i8 " "• ^■' '*^ii^ lll>lllj>\- III' 
 (jiicfii, J) A{i\t. (.'iw. 117, p. I'JO. 
 
 15. Firr Li III ill*. 
 
 A city ('iii'|iiii'atiiiii p.'iH.Mcil )i hy-liiw iiiiili'i- I!. 
 S. O. 0. 17*. N. •|t!7, Hiili H. <■», wliirli ilfliiii'il lire 
 liinitM, within wliii-h Imililiii^'H wrrr tn Im of in- 
 L'uiiiliiiHlilili' niati'rial ; tin- iohIh tn lir nC rci'tain 
 liiutalH, III' xliti', or hIiiii);Ic'm laiil in iiiiirtai' imt 
 luHM than hall tin iiirli tliirk, iiinl iin I'linf of iiiiy 
 hiiiliiiiih' alritaily t'l'rctnl within tin- Iin: liiiiit'^ tn 
 Im) n^l.'tiil or ni'iivi'i'i'il cxrt'iit with mii' nf the 
 vniiiiii'iatril iiiati'ri.'ilH. 'I'hi' ilcl'inilaiit w.'is ron- 
 victril fill' having laiil iii'U Nliin^lii.s mi hi.i wnoilt'ii 
 Ikiiihi' uitliiiiit laying' tliriii in iimrtar. 'riic 
 lioiiNi' li.'iil liri'ii .xtiiiiliii^ lor many yl^'U'H IicI'ihi' 
 tho hy law was passcil : llrlil, that thr liy law 
 witH ultra vircN, in ho far hh it ri-lrrrcil to rxist 
 inx liiiililiii^'H or nrillnary ri-|ial!'H or rliaiii>i;H 
 tliiTt'of. not liciiij^' aililitioiis tlu^rcto. A'c/i/ik v. 
 //0Mvi/'</, Mt. I!., t^ ll. I). :<77. 
 
 Id. /'uhtir MiiriiU. 
 
 Till' I'linviiitioii was iimliT ii bylaw, tor wrilinj^' 
 iuiil iiiistiiiK ii|i an inilorcnt plai'aril, ami tlii' 
 |iliu;nril waH a I'fiiiiiii.'il lilirl. (^iiaTi', I'crCaiii 
 uroii, •!., whctliiM' the miiniL'i|i lity (.'oiilil thus 
 mako a nrw nH'i'm-f, uml awiinl a new or nil 
 ilitional luiiiixhiiiciit I'lir what wjim alriia lyu I'riini- 
 iial ollriun!. Mcl.tUaii v. McKlninni, I (». IJ,, 
 ti. U, I). Uli). 
 
 .XI. AiniONS ANI> rno('KK!>INi:.s IIV .\NI) AOAIN.ST 
 M U N 101 1'Ai, ( '(lUI'OH ATION.I. 
 
 I. Ornentllij, 
 
 Against siirvrynr for m'j,'lij,'cn(M' in inakiii^' im- 
 pr()|R:r Kiii'vi'y. ."<i'e 'I'lif <'iir/iiir<itliiii o/V/ic Town- 
 Khip <ij Sliiforit V. Hrll, (i A. II. •J7.*{, p. 41)8. 
 
 I.ialiility of iniiiiirip'il t'orponitimi I'ori'ontrai't 
 not uiiilur seal. .Soo SUmIii/ v. 'I'lif < 'uriMiriiHuii 
 of the \'ill<i<if <,/ l)ui,iirill<; H A. U. iV.'4, p. 148. 
 
 Coinpflling railway to repair highways. Krainc 
 of suit. St'c FiiifluH FiilUv. Victurin It. W. Co., 
 29 Chy. 4. 
 
 Action for falso impritionnieiit. Voiil uhschs- 
 tticiit. Si!« Mi-Siirlrii V. 77/(' Atni/nr, it'c, o/' lln 
 Citij of St. John H It/., « S. (.'. ll.'r).31. 
 
 Writ of prnhiliition to iniiiiicipal corporntion. 
 See Cotr V. Miiniaii, 7 S. C. U. 1, p. ;{1. 
 
 Sec T/ie .U((/«iih.i /itiiik v. '/'Ac Cor/ionilioii of 
 the Toivii of Urovki-ille, 31 (!. I*. 174, p. (i(». 
 
 XII. MaITEUS nEKEKKKI) to AriiITUATION. 
 
 Tho court liMR power to enlarge the time fur 
 iiinking nil awaiil, ultlmuKh the samo has nut 
 liccn made " within one month after the appoint 
 luent ot the tliiril arbitrator," as reqiiireil by s. 
 377 of the U. S. (). c. 174. Ill r<- Ihf City of 
 Toronto anil Scolt,S V. K. 318. — WiUon. 
 
 The general eiiuctinc.its relating to arbitration 
 apply to awards uuder the Municipal Act. lb. 
 
 Ill I'xti'iiiliiig tliti time ill thi.^i'ase the iiiatterN 
 I'l'leri'i'il wi'i'e niiiit ti'il tn Hiii'li jii I'^niis aH the 
 iniirt shniilil appnint iiinli'i' the .Miiiiiiiital Aet, 
 «. 3S.-., //;. 
 
 Seiiible, that the I'liinliini'il etl'i'it of hii'H. ,'177 
 and .'ISO III the .Mliniripal Aet, is In enable the 
 arbitritiirs in eaMes enmiiig uiihin IIhmc srctioiiH 
 to exti'iiil the time for in.ikiii;:; llnii' aw.'iil be- 
 yoiid the imiiith. 'I'iiiriiMlii/i III I'hiiilnii' v. Town- 
 slii), of Siiliiiji, -JlU'liy. 4!»7. 
 
 The plaintiir iiiiiiiii'i{iality sued ii|ion .iii .iwaril 
 wlieli'liy the ilel'i'iiil lit nilllM'ip ilit y uisnrdel'ed 
 tn pay t lieii pMipiii'l inn III tliiM'ust m a dr.iiii emi- 
 strili'ti'd by till' pi liiitilFH. It wassliwn that 
 the ai'liitratnrs met fi'i'i|iie itly and .iil|nuriied 
 ii".im liiiii' In time, iniinsil lor the ih i< inlaiits ap 
 MINirill;; bel'ni'e tlie al'lill I'alors .Hid rai-tilig lio oii- 
 jeetioii tn siieli ai!|niiniiiii iits, or that ihe iniiuth 
 li'iiiii the d.ile III till' a|i|iiiintiiii'iit nf the third 
 al'liitiatnr, i'.s proeliliicl liy He''. ,'!:17 of the .Mlllli- 
 I'ipal Aet, had el i|iHi'd witlinllt an, aw.ii'd having 
 beiMi made: Ibid, that an award made after 
 the expiry of the month w.is v did. Ih. 
 
 Held, tli.'lt the ai bit i'.'itiii'.M o'l the se|rii'atinn of 
 the liliiteil tnu ii^liips, under K .S. <)., e. 174, s. 
 'JM, shniild imt t.ike intn ennsider itinii niniieyH 
 I'ei'i'ived by the llliinll, llinlrl' Mi \ irl. e. 17, <*., 
 fliim the I •iiveniliieiil nil areniilit nl the .Mlllii- 
 ei|ial l.naii l''iiiid, :iiid a|ipr<i|irialed by the iininll 
 tn the plll'pnses all! Iini'i/.eil by that .\i'l ; but that 
 they mi;;lit a|i|initinii any part <ii it reiiiaiiiing 
 iiii;ipprn|iriati'd, and in lining sn m eil not bu 
 governed by the pn|iiilatinii nf the s, veral town- 
 ships aeunnling tiitlieeeiLsiis of I.S7I. as |ii'oviileil 
 fur the disti iliiitinii by lIu' (anvermiieiit under 
 til it Aet. The duty nf siieli arb.tratni's is tn an- 
 certain the ass^'ts nt the uiiinii, re il and persniial ; 
 dispnse of the piisnii d |ii'n|.eity a.s may be just ; 
 make pi'ii()er allnwaiire I'nr the ri.al est ite to the 
 tnwiislii|i dr|iii\eil nf it by tin: sepai'.itioii, and 
 for the pcrsnii d pi'n|ieity as-^igiied tn either 
 miinii'ipality in exe.ss nf its share : and .iHeer- 
 taiii and appnrtioii the liabilities. They should 
 eniisider the value nf the re.il property of the 
 uiiinii in eaeh tnwnslii|i as an asset, and what al- 
 Inwaiiee, if any. slimiid be inaile by the towil- 
 ship retaining it under the statute tn tin sep.irat- 
 ing lownslii|i. /// ('(' Ihv < 'oi/ioriilinii m' Ihr 'I'mrn- 
 ■ihi/i of Alliiiiiiirli- mill /III- ('or/iiir'itiiiii of the 
 I'liifiil 'roiniiliiiH III' Eiuitiior, Liiiil<nii, mill SI, 
 
 Fii mil III 1.1, 4.') ii. Ii. i;{;i. 
 
 The prnvisioiKs of sec. 383 of the Miinieip;il 
 Aet rei|uiring aibiti'atnrs tn take and lile I'nr the 
 iiitnrniatinn nf the coiiit full notes ol the cvi- 
 deiiee, or a .statement that they pl'iKceded U|)iin 
 skill or klinwleilL'e possessed by theiiiselve.s. or 
 upiiii a view, in making thi.'ir .iw.iid, are impera- 
 tive, and the iiinissinii tn eoniply with them it* 
 fatal to the award. Inn- Altuniarlc, il nl., 4(> 
 
 (.1 n. 183, 
 
 Krniii re.'uling the awanl made in this matter, 
 and the evidence and diiuuiiieiits tiled, it wa.s im- 
 pnssible Inr the court tn aseci tain the reii.sou for 
 the award, and so inipnssible to eonsider the 
 matter upon the mi litM as re(|uiic 1 by see'. JJS.") ; 
 and thceviileiieeand dneuineiits which were tiled 
 a|ipi'ai'cil not tn aiip]inrt the award, which was 
 theri'fnre set aside. Ih. 
 
 The arbitratnrs having made two previnus 
 awards, which had bntli b 'eii rcfciied back to 
 them, aud great expense incurred, the uuurt 
 
^. 
 
 
 IMAGE EVALUATION 
 TEST TARGET (MT-3) 
 
 
 
 1.0 
 
 |_U_ 
 11.25 
 
 L&|28 |25 
 ^ iU |22 
 
 wuu 
 
 1.4 
 
 1^ 
 
 
 
 '/ 
 
 ffiotographic 
 
 Sciences 
 
 Corporation 
 
 23 WIST MAIN STRUT 
 
 WnSTIR,N.Y. MSM 
 
 (716)t72-4S03 
 
 

 
 %° 
 
 ^^ 
 
 ^ 
 
495 
 
 NEaLIGENOE. 
 
 496 
 
 t 
 
 r 
 
 u.. 
 
 f.,. 
 
 
 
 .Ji. 
 
 refused to refer the matter back to tliem, but 
 orcUred that it be remitted to the judge of the 
 County (Jourt, unless counsel could agree upon 
 such facts as would enable the coui't to deal with 
 the matters in dispute. lb. 
 
 In proceedings upon arbitration between a city 
 and county under sees. 22, 445, 44(), and 447 of 
 the Municipal Act, the questions submitted .are 
 largely in the tliscretion of the arbitrators, no 
 lirinci)jle or rule being laid down by the statute. 
 Where, therefore, arbitrators, in forming esti- 
 mates of tiic proportion of expenditure to be 
 borne by the city and county under these sec- 
 tions, took jM.pulation as a basis instead of the 
 assessmc' >■ > — Held, that this was no ground 
 for inter; ■iCKcrj The court refused also to 
 interfere with • 'i-riiensation awarded for care 
 and maintcnnii- 'i prisoners. The arbitrators 
 having awari' y 1 'is to ihe ni.icadamized road lying 
 ill the county :.' 1 cit/, a matter not submitted 
 to ihem. tin; '^c'lhc was struck out of the award 
 with costs, v/'iich n-ere fixed at .*!I0. In re the 
 Arhit ration hHivcfri the Corporation of the city of 
 St. Catharinex and the Cor]Mration of the county 
 vf Lincoln , 4(i Q. B. 425. 
 
 A portion of the township of Sarnia was added 
 to the town of .Sarnia bj' prooiamatioa of the 
 Lieutenant-( jovernour. The former municipality 
 was ir. ''ibted to the Province for certain drain- 
 age works under the provisions of R. S. 0. c. 
 33, in respect of roads benefited by the drains. 
 The arbitrators, in settling the matters in dispute 
 between the two corporations, refused to con- 
 sider this indebtedness, and made their award 
 without a<ljudicating thereon :— Held, that the 
 award was invalid, for the liability in respect of 
 the roads was an ordinary debt payable out of 
 the general funds of the township, to which the 
 town should contriljute. The award directed 
 the township to pay a certain sum to the town : — 
 Held, bad ; for the Municipal Act, R. S. O. c. 
 174, s. 53, only provides for a payment by the 
 tfiwn to the township. In re The Village of Point 
 Edward and the Township of Sarnia, 44 Q. B. 
 401, distinguished. lie The Corpoi-tttion of (he 
 Toivnshiji of Sarnia and The Corporation of the 
 Town of Sarnia, 1 0. R., Q. B. D. 411. 
 
 See Hardinf) v. the Corjioration of the Town- 
 ship of Cardif, 29 Chy. 308, p. iS6; Smith v. The 
 Corporation of the Toirnnhip of lialeiijh, 3 0. R. 
 405, p. 490. See also llardinrj \'. The Corpora- 
 tion of the TownMp of Cardiff, 2 0.R. 329; In re 
 the Corpoi'atiou of the Town of Imjernoll and Car- 
 roll, 1 O. R. 4S8. 
 
 MUNICIPAL LOAN FUND. 
 
 See In re the Corporation of the Township of 
 Albemarle an(/ the Corpnrationof the United Town- 
 ships of EuKtnor, Lindsay, and St. Edmunds, 45 
 Q, B. 133, p. 494. 
 
 MURDER. 
 See Ckiminal Law. 
 
 MUTUAL INSURANCE COMPANY. 
 See Inschanck, 
 
 NAME. 
 Of Corporations— 5ee Cokpor.\tions. 
 
 See also, Seal's v. The Agricultural Ins. Co. et 
 al, 32 C. P. 585. 
 
 NATURALIZATION. 
 See Alien. 
 
 NE EXEAT REGNO. 
 
 Writ of, in Cases of Alimony— &<> Husband 
 AND Wife. 
 
 The sureties on a statutory bail bond under a 
 writ of ne exeat Provincia have no power to sur- 
 render their principal as at connnon law. An 
 application by sureties for discharge from a bond 
 and for repayment of the money ,)aid to the 
 sheriflfas collateral security was refused. Hichord- 
 son V. Richardson, 8 P. R. 274. — Proudfoot — 
 Spragge. 
 
 NEGLIGENCE. 
 
 I. Contributory Negligence, 496. 
 
 II. Parties Liable, 497. 
 
 1. Municipalities — See Water 
 Water Courses — Way. 
 
 AND 
 
 2. Valuators — See Valuator. 
 
 III. Erection of Buildings and Removal 
 
 of Lateral Support— 5ee Build- 
 ings—Lateral Support. 
 
 IV. Damages Recoverable. 
 
 1. Action by Representatives of Persons 
 Killed by Negliijence, 498. 
 
 V. Of Agents — See Principal and Agent. 
 
 VI. Of Attorneys— to Attorney and So- 
 licitor. 
 
 VII. In Presentment of Bills or Notes— 
 See Bills of Exchange ash Pro- 
 missory Notes. 
 
 VIII. Delay -See Laches. 
 
 IX. By Fire — See Fire. 
 
 X. By Railways — See Railways and 
 Railway Companies. 
 
 XI. New Trial in Actions for — See New 
 Trial. 
 
 I. Contributory Negligence. 
 
 Liability of Accident Assurance Co. in cases 
 of contril ■ tory negligence. See Neill v. The 
 Travellers' Ins. Co., 31 C. P. 394; 7 A. R. 570. 
 
 Submitting question of contributory negligence 
 to jury. See Bennett v. The Grand Trunk R. W. 
 Co., 7 A. R. 470 ; Maw v. The Townships of 
 King and Albion, 8 A. R, 248 ; Edgar et ux. v. 
 Northern R. W. Co., 4 0. R. 201. 
 
496 
 
 I 
 
 497 
 
 NEW TRIAL. 
 
 498 
 
 noNs. 
 
 his. Co. ct 
 
 Hpsban'd 
 
 nd under a 
 wer to sur- 
 law. An 
 rom a bond 
 aid to the 
 I. Hiclmrd- 
 'roudfoot — 
 
 496. 
 
 ITER AMD 
 
 5 Removal 
 ■See BciLD- 
 r. 
 
 of Permns 
 8. 
 
 .ND Agent. 
 
 :y and So- 
 
 )R Notes — 
 ^VND Pko- 
 
 TAYS AND 
 
 -See New 
 
 IE. 
 
 o. in cases 
 (7/ V. Tke 
 A. R. 570. 
 
 negligence 
 •mk R. W. 
 wns/iipn of 
 ■r et ux. V. 
 
 See Klein et al. v. The Union Fire Ina. Co. et al., 
 •,i 0. K. iJ.'U, p. 371 ; Corjioration of the Town- 
 Mp of Stiitf'oril V. Bell, (5 A. R. 27.'?, infra. See 
 also JlcCalliini v. Udetle, 7 S. C. R. 30. 
 
 See also ' 'Railways and RAIL^vAV Companies.' 
 
 
 II. Paktifs Liable. 
 
 Action against a clerk of a municipality for 
 emitting names from tlie collectors' roll. — Non- 
 avermeut of negligence. See T/ie Corporation 
 ■ if the Town of Petcrltoroin/h v. Edwards, 31 C. 
 1'. 231, p. 27. ' 
 
 Negligence in investing money. See Carter v, 
 //«/ .A, 31 C. V. 293, p. .391. 
 
 Liability of master for acts of fellow-servants. 
 See Drew v. 'J'he Corp'irution of the Toiunshiv of 
 Ea.4 l(7(/%,'4GQ. B. 107, p. 450. 
 
 The defendants were the owners ot a building 
 (in the street. A pipe, connected with the cave 
 troughs, conducted tlie water from the roof down 
 the side of the building, and by means of a spout 
 discharged it upon the sidewalk, where in the 
 winter it was formed into a ridge of ice, upon 
 which the female plaintiff slipped and fell while 
 walking on the street, and injured herself. The 
 Jury found that the defendants did not know of 
 the accumulation of ice, and that they ought not 
 reasonaldy to liave known of it: — Hehl, A.mour, 
 .1., dissenting, that the defendants were not 
 liable. I'er Hagai-ty, (J. J., the carrying of the 
 water to tiie sidi.'walk was a harndess act ; the 
 action of the weather was the proximate cause 
 of the accident, and the defendants not having 
 knowingly allowed ice to accumulate were not 
 responsilile. Per Armour, J., the conducting of 
 the water to tile sidewalk was a wrongful act, of 
 which the formation of ice on the sidewalk in 
 winter was the natural, certain and well known 
 result, and defendants were responsible. Skdton 
 -d >u: V. Thompson et al., 3 O. K., Q. B. D. 11. 
 
 Alterationof note.— Negligence of maker. See 
 Swai^lnnd v. Davidson et al., 3 0. R. 320, p. 75. 
 
 A surveyor in making a survey is under no 
 statutory obligation to perform the duty, but un- 
 dertakes it as a matter of contract, and is liable 
 only for damages caused by -want of reasonable 
 skill, or by gross negligence. The defendant, a 
 provincial land surveyor, who was employed by 
 tile plaintiffs to run certain lines for ro.ad allow- 
 ances, proceeded upon a wrong principle in mak- 
 ing the Hurvey, and the plaintiffs sued him for 
 damagi'S which they had paid to persons en- 
 croached u])on l)y opening the road according to 
 his survey : — Held, reversing tlie judgment of 
 the Common Pleas (31 C. P. 77), tliat the plain- 
 tiffs could not recover as although the survey Avas 
 made )»y defendant on an erroneous principle the 
 evidence failed to prove that the lines as run by 
 hiui wei'e not correct. Quicre, per Patterson, J. 
 A. , whetiier the fact that the plaintiflfs knew that 
 the correctness of the survey was questioned be- 
 fore opening the road did not make them guilty 
 of ccnitributory negligence. Corporation of the 
 Township of Slaford v. Hell, 6 A. R. 273. 
 
 A petition of right does not lie to recover com- 
 pensation from the Crown for damage occasioned 
 by the negligence of its servants to the property 
 of an individual using a public work. The Queen 
 V. McFurlane et al.,1 S. C. R. 216. 
 
 32 
 
 IV. Damages Recoterable. 
 
 1. Actions by Jiepresentatires of Persons Killed bif 
 Xe<jliijenee. 
 
 The plaintiff sued under Lord Campbell's Act 
 on behalf of himself and his children for the 
 death of Lis wife occasioned liy the defendants. 
 The wife had some sejiarate estate from which 
 she derived an income but the jury allowed no 
 damages in respect thereof. It was not shewn 
 that the wife affordcjd any pecuniary assistance 
 either to her husband or her children. The jury 
 found for the plaintiff and apportioned the dam- 
 ages amongst the plaintiff and some of his chil- 
 dren : — Held (Armour, J. dissenting) that the 
 verdict was wrong ; for the plaintilf was not en- 
 titled either for himself or the children to re- 
 cover compensation for any thing but pecuniary 
 loss or the loss of a reasonable probability of 
 pecuniary benefit. Per Armour, J., the loss to 
 be compensated is the loss of some benefit or 
 advantage capal)le of being estimated in money 
 as distinguished from a solatium for wounded 
 feelings and loss of companionship ; and the loss 
 to the husband of the wife's performance of her 
 houseliold duties .and to tiie children of a 
 mother's education are both losses which can be 
 estimated by a jury. Lett v. The St. Lawrence 
 and Ottawa R. W. Co., 1 0. R., Q. B. D. 545. 
 
 Sec Oihson v. Midland R. W. Co., 2 O. R. 658, 
 p, 72 ; //( re The Garland Monaghan v. Horn, 7 
 S. C. R. 409, p. 447. 
 
 II. 
 
 NEW TRIAL. 
 In what CASE.«i. 
 
 1. Controverted Ekction.% 499. 
 
 2. Defamation, 499. 
 
 3. Interpleader, 499. 
 
 4. Malicious Arrest or Prosecution, 499. 
 
 5. Actions for Neijlujence, 501. 
 
 6. Seduction, 502, 
 
 7. X'cw Trial ai to some Counts, and Non- 
 suit as to Others, 502. 
 
 For what Cause. 
 
 1. Excessive Danwijes, 502. 
 
 2. Surprise at Trial, 502. 
 
 3. Discover// of Xew Evidence, 503. 
 
 4. Improper Admission of' Evidence, 503. 
 5 Improper Rejection <f Evidence, 503. 
 
 6. Non-Direction of Judge, 503. 
 
 7. Misdirection of Judje, 503. 
 
 8. Where Verdict is aijainst Evidence or 
 
 the Weiiiht of Evidence. 
 
 (a) Where Forgeri/ is alleged, 504. 
 
 (b) Where Verdict does Substantial 
 
 Justice, 504. 
 
 (c) Otlier Case.% 504. 
 
 9. To Amend Pleadings, 505. 
 JIL On wh.\t Terms, 506. 
 
499 
 
 NEW TRIAL. 
 
 500 
 
 «« 
 ?' 
 
 
 
 ]V. I'KTKIiMIMNC: QlKsllON I.N DlSPt'TE ON" 
 
 Motion kokIS'kw Thial, TiOC. 
 
 V. iXri'KAi, IN ArrucATioNS fob New Trial, 
 
 rm>. 
 
 VI. MiscKi.LANKocs Casks, 507. 
 
 1. In What Ca.ses. 
 1. Controvcrtril Eltitiuii.<. 
 Charges of coiTupt practices, consisting of 
 
 godd.s olitained, was dcjiositicl with tlic dcfiii- 
 daiit, tlie (ilaiiitiir coiitiiuung to deal v.itli liiin 
 until not only the wholeof the sum w s ahsor'ied, 
 ))ut a further iudehtedne.-s hud h .'en incurred. 
 The defendant cau.s..(l a Marrant to lie issued to 
 arrest the jilaintill' for obtidn'nj^ j,'oods under 
 false pretences, though with the rial ohjeet of 
 obtaining a settlement of liis account. After 
 the iihiintitr was anisted and liiouglil before the 
 magistrate he was allowed to go on hi.-; own re- 
 cognizance to appear ntwt day, bi'l being unwell 
 he could not appear, and the charge not being 
 
 promises of money and of cmjiloynient, were ! pressed by the defendant, and the magistrate 
 
 made against the res]iondent and one M., his 
 
 agent. Both the respondent and his agent denied 
 
 making .-my (iKindses ot money, liut left the 
 
 prondses of employment unanswered; and the 
 
 judge trying the petition (lirajier, (.'. J. A.) so 
 
 found, and avoi(h'(l the election. 'I'hereupon the 
 
 resjiondent apjiealeii to the court of appeal, and 
 
 under 88 \'ict. , c. 8, s. 4, ollered further evidence 
 
 by aliidavit, s]ieeilieally denying any ofler or 
 
 promise, directly or indirectly, of employment. 
 
 Draper, C. .1. A., who tried the jietition, having 
 
 intimated to tiie court that had the respondent 
 
 and his agent made tiie cxjilicit denial as to oti'ers 
 
 of money or employment which it appeared they 
 
 not thinking there was sidlicient evidence to 
 commit, the matter wa.i allowed to drop : — 
 Held, that tluiiigh the evidence shcwtd that the 
 charge was not legally sustainable, yet, if the 
 defindant acted bona fide, which was a matter 
 foi- the jury, he would be justilicd in prosecut- 
 ing : — Held, also, that it sidliciently aiipcared 
 that the prosecution had tern.inated. The war- 
 rant Was issued in the united counties cf N<prth- 
 nrnberland and Durham and was endorsed by the 
 magistrate in the county of IVterljorongh, "This 
 is to certify that I have endorsed this w;irraut, 
 to be executed in the county of I'etcrboiongh," 
 but there was no proof of the handwriting of the 
 
 had intended nniking, he would have found for ' justice who issued the warrant, or recital of such 
 the respondent; — Held, under these cirenm- proof, as reijuired by .S'i-.SS Vict. c. .'10. s. 23, !)., 
 stances, that the finding of the election court I Schcd. K. :— Held, that tlie warrant was there- 
 should be set abide, and that fi new trial shouhl ■ fore defective ami the ariest illigal, for wliich 
 
 be held before another judge on the rota. Peel 
 Elvclcoii [()nt.)—JIurst v. Chixhulm, 1 H.E.C. 485. 
 
 defeuclant was liable in trespass. Unihr the cir- 
 cumstances, a verdict having been entered for 
 the defendant, a new trial was ordered. RiM 
 V. Maijbee, 31 C. P. 384. 
 
 2. Defamation. 
 
 In an action for malicious prosecution, on the 
 The defendant spoke of the plamtifT, a miller „j,,,„i„y „f the defence the defmdant was called, 
 »nd grain buyer, that one of the big millers ! ,j,i,i stated that he had learned some facts from 
 (meaning the plaintiflF) had run away owing j certain persons upon which he had caused the 
 money to him and others; that he. the deft ndant, pljvintiff to be arrested; but on proceeding to 
 had come in to catch the iiiaintifl, but that he j^tate what he had heard, the le.iined judge ruled 
 had gone or cleared out. At the trial a nonsuit ' that this was inadmissible, and tliat the persons 
 was entered, on the objection that the words ivhobad told himtliese factsshould first becalled. 
 were not shewn to liave been used with reference '|in.y y^■^^^.^, then called and ex^iiniiicd, and after- 
 
 to the plaintifrs business, and no special dam.ige j ^^anls the defendant gave his evidence as to what 
 was proved ;-Held, that tlie nonsuit was wrong, j th^y had told him. The jury lound ,i verdict for 
 for the words us. d cast an imputation upon the j,ia,intift' with .•?r)llO damages :- Held, that the 
 solvency and financial stamliiig ot the plaintiff, \ evi.lence was improperly lejecte.l when offered ; 
 and It was tor the jury to say whether they were j |,i,t, Armour, J., dissenting, that as it had after- 
 spoken m refennce to bis business, and calcu- .w',irds been received, no sulistiinti^d wrong or 
 
 lated to injure li'm therein. 
 O. 1!., Q. B. D. 577. 
 
 Lott v. Drtiry, 1 
 
 3. Interpleader. 
 
 Where there has been a trial by jury in an 
 interjileader issue directed from the Chancery 
 Division an apjilicntion for a new trial must be 
 made to tlie liivisional Court and not to a single 
 judge. Cole v. Cam]>t>ell, 9 P. R. 498.— Boyd. 
 
 4. ifalicions A rrent or ProHectU'wn. 
 
 In July, 1878, on returning with the defen- 
 dant from eushing a draft which the plaintift' 
 hatl received from Scotland, the plaintiff boasted 
 to defendant that be was going to get very much 
 larger reniittiinces in May, 1879, and 1880, but 
 
 there was nothing to shew that that statement | tiff obtained a verdict of $500 :— Held, misdirec- 
 waa made with a view to obtaining credit. ; tion, for which a new trial should be granted. 
 Nearly the whole of the proceeds of the draft, | Per Hagarty, C. J., dissenting. Though the 
 «fter paying defendant an account then due for i directions standing alone might be open to criti- 
 
 nrscarriage having been occasioned by the ruling, 
 and the verdict being satisfactory, a new trial 
 should be refused under see. '289 of the C. L. P. 
 Act. Bernard v. C'uutetlier, 45 Q. B. 453. 
 
 In an action for malicious prosecution the 
 want of reasonable and jirob.ible cause does not 
 necessarily establish that ninliee w hich is reipii- 
 site to maintain the action. Therefore where the 
 jury were directed, in the course of the charge, 
 that if a person makes a charge against another 
 for the imrpose of his being arraigned upon it 
 without being justified in juiint of law, then he 
 does it maliciously : that they need not trouble 
 themselves with a question of malice except as 
 it might be inferred from want of re.isonalde and 
 probable cause, and that if the information had 
 been laid without proper cause the result would 
 be that it was laid maliciously ; and the plain- 
 
r)f)() 
 
 501 
 
 NEW TIBIAL. 
 
 502 
 
 the (Ufcii- 
 v.itli liiin 
 ilisor'iL'd, 
 iiicuiTud. 
 i; is^UL'(l to 
 Oils uiiilor 
 ()l)jfct of 
 it. After 
 liiforf tlie 
 is own re- 
 iny unwell 
 nut l)uing 
 niaj,'istr.ite 
 iiiUnce to 
 1 (li'oj> : — 
 (1 that the 
 rt, if the 
 s a matter 
 inoseeut- 
 ainioareil 
 The war- 
 cf Xoith- 
 si (1 ]>y the 
 gli, "'This 
 s warrant, 
 rlioioiigh,'" 
 ting of the 
 ital of such 
 1. s. "23, I)., 
 was there- 
 for wiiieh 
 lir thf eir- 
 ntered for 
 red. Rrid 
 
 cisni, tlie charge must be read as a whole ; but 
 as the jury were afterwards told repeatedly that 
 they should lind for defendant if they thought 
 that he believed the matters sworn to in his in- 
 formation, there was no misdirection which would 
 w;;rrant interfering with the plaintiff's verdict. 
 \\'here the damages are large, and to a great ex- 
 tent sentimental, this may well be considered in 
 deciding whether there has been a substantial 
 wrong caused by a clear misdirection. Winjivld 
 V. Kmii, 1 O. !{., Q. B. D. 193. 
 
 In an action for malicious prosecution, the in- 
 formation and warrant of commitnient merely 
 disclosed a civil tresi)ass. Tlie plaintiff was non- 
 suited at the trial. Ita])peared, however, that 
 the defendants had not disclosed the whole facts 
 to the magistrate, and that, at the hearing, on 
 the plaintiirs solicitor objecting th it no criminal 
 offence was charged, one of the <lefenilants said 
 that in order to have the case investigated he 
 would charge the plaiutitl" witli stealing the 
 oats. The statement of claim alleged that the 
 defend.-.nts had charged the plaintiff with felony. 
 The court set aside the nonsuit, and granted a 
 new tri d, with leave to the |)laintiff'to amend 
 the statement of claim aecorduig to the facts. 
 Maaloiiatd v. JJcuwimxI eta/., 32 C. P. 433. 
 
 5. Arii iii fur XctiUgcuce. 
 
 The jdaintiff leased premises at tlie corner of 
 Queen and Bathurst streets, which ran at right 
 angles to each other, in Toronto. There was a 
 main sewer on Queen street, with which plain- 
 tiff's private drain, constructed by the defend- 
 ant's at the expense of the plaintiti"slessf)l', con- 
 nected, and which had been extended westward. 
 There was therein at or al)out Portland street, a 
 wall said to be for the jiurpose of dividing the 
 water and causing it to How eastward and west- 
 ward. There was a sewer on liathurst street, 
 soutirof Queen street. Subjequently and about 
 four years before the action, a sewer was con- 
 structed on ]iathurst street, north of Queen 
 street. Into this sewer a creek was turned in 
 which at times the water was six feet deep and 
 a number of cross streets drained thereinto. 
 Within the four years before action, but never 
 before the plaintiff's cellar had been flooded 
 several times and the cause of this action was 
 the flooding during a rain of eight or nine hours' 
 duration. The plaintiff' alleged originally de- 
 fective construction of the .sewers and nefjligenco 
 in not repairing, but simjily proved the flooding 
 and the above facts, and the jury found a verdict 
 for him. A new trial was directed. Armour, J., 
 dissenting. Nohlv v. The Corporation of lite Cili/ 
 of Toronto, 4G Q. B. 519. 
 
 The servant of the plaintiff was in charge of 
 an omnilius running to and from the station of 
 the defendants' railway, and on the evening iu 
 question was attending at Georgetown station, 
 at about ten feet from the trick, but was unable 
 to Sea along the railway in either direction by 
 reason of houses intervening. By leaving the 
 omnibus, however, and going to the track he 
 could have seen an approaching train ; but 
 omitting to take this precaution, although aware 
 that a freight train was then on the track near 
 the crossing, he started off' to cross it, and did not 
 hear or see anything of the approaching train 
 until within about lour feet of him, wheu he was 
 
 unable to avoid it, and the omnibus and harness 
 were coiisiileralily damaged. It was not shewn 
 that the driver of the train had given any warn- 
 ing of its approach by sounding the whistle or 
 bell on its Hearing the part of the track where it 
 crossed the road to the station. At the trial 
 the pliintiff was nonsuited on tlie ground of the 
 contributory negligence of the plaintiff's servant: 
 — Held, on appeal, (reversing the jndginent of 
 the County Court,) that the (juestioii of con- 
 tributory negligence had been improperly with- 
 drawn from the jury, and that a new trial must 
 be had iu order to submit that nucstion to them. 
 Bennett v. The OrandTrunk li. IT. Co. , 7 A. 1\. 470. 
 
 6.' Seduction. 
 
 A defend.ant in seduction is not to I>e prejii 
 diced in an ap|)licati(m for new trial because his 
 cou'.'.sel has examined him as to his means, after 
 having endeavoured to exclude such evidence. 
 Fvrijusoii V. Vvilch, 4") (J. B. 1(>0. 
 
 7. Xew Trial as to xome Counts and Xonsuit as 
 to others. 
 
 Where there were common counts, on which 
 there was evidence for the jury, but the verdict 
 certainly included some damages uiioii tlie special 
 counts, a new trial was granted on the cominou 
 counts, and a nonsuit as to the others. Harper 
 V. Buries, 45 Q. B. 442. 
 
 II. For What Cause. 
 
 1. Erxessive Dammjes. 
 
 Where the damage consisted in cutting down 
 some ten or twelve ornamental and shade trees 
 growing on the highwiy, ojiposite to the ))lain- 
 tiff's land, for which he was awarded $150:-- 
 Held, not excessive. Douqlas y . Fox et al. , ^\ 
 C. P. 140. 
 
 In an action of trespass to a certain lot of land 
 and expulsion of the pl.iintiff therefrom, the 
 plaintiff claimed §500, the jury assesseil the 
 dam ges at SloOO and the learned judge at the 
 trial amended the statement of claim accord- 
 ingly: — Held that the damages were excessive 
 and a new trial was granted. Robinson v. liali, 
 1 O. K., Q. B. D. 2Gt).; 
 
 In an action for breach of a warranty (ui the 
 sale of a piano: — Hehl that the proper measure 
 of damages to allow was the price which at the 
 time of sale would have been reijuired to remove 
 the alleged defect, and the jury having given 
 much more, the court named a sum to wliich the 
 plaintiff might reduce his verdict, or tint there 
 should be a new trial. McMidlen v. Williams, 5 
 A. It. 518. 
 
 See Winjield v. Ke.an, 1 0. 11. 193, p. 501. 
 
 2. Surprise a' Trial. 
 
 Held, that the abstaining of a party from proof 
 under tlie idea tiiat the opposite party has no real 
 intention of putting him to such proof, and being 
 thereby taken bysurprise, is not ground for grant- 
 ing a new trial. Andrew v. Stuart et al., G A. 
 K. 4!)». 
 
R0i 
 
 503 
 
 NEW TRIAL. 
 
 504 
 
 ,^1 
 
 Xew homing fjii gnminl of surprise. See<S7/cr- 
 n7< V. Bvdtlii-, '11 Cliy. 4()2. 
 
 3. J)!M'ovtrii oj X(u; Evidence 
 
 See Diimh/i- v. 77»' Cohoiini and Petcrhorouqli 
 11. II'. fy., L'i) Cliy. 1-21 ; j/«/'/(/// f/ a/, v. ?'/«■ 
 Canada Cent ml H. 11'. ^'o.. 7 A. k. U4G. 
 
 4. Jinjirajirr Adiiil-'ixion of Evidence. 
 Sec Coo^- V. 6'm«^ 3'2 C. P. 511, p. i)04. 
 
 5. hn/iriijitr Jtejeclion of Evidence. 
 
 Held, that to :m action i)y nu assignee of an 
 aecount for the jiriee of luni1)er and staves deliv- 
 •ered liy tlie assignor to the det'eiKhmt under two 
 eertain contracts tlierufor, tlie defendant, under 
 R. S. 0. e. ]](), ss. 7, 10, and the Judicature 
 Act, ss. 12, 10, and Kule 127, can set up as a de- 
 fence IV claim for damage for tlie non-deliveiy by 
 the assignor to tlie defendant of eertain otlier 
 timljer and stavet, specified in the contracts, and 
 f(n- tlie inferior (|uality of those de.ivered. Per 
 Osier, J. His right to do so depended wholly 
 upon 11. S. (). c. lU), s. 10. In this case the 
 learned judge, at the trial, having refused to en- 
 tertain the former defence, a new trial was or- 
 dered. The EreliamieBfinkv. Stin.wn,^2 C. P. 15S. 
 
 In an action on a bf)nd against two sureties, 
 the defendant I>. set up the defence and gave 
 evidence that his signature to the bond had been 
 obtained by fraud. The evidence of his co-de- 
 fendant C. , was tendereil for the purpose of shew- 
 ing that C's signature to the bond had also been 
 so obtained, which was rejected as inadmissible : 
 — Held, that the evidence of C. was admissible as 
 shewing a fraud practised on him, with respect 
 to the same instrument by the same person, and 
 ftt or about the same time as the alleged fraud on 
 H., and because it was confirmatory of R.'s evi- 
 dence ; and a new trial Mas ordered. The Water- 
 1(10 Mutual Ins. Co. v. Hobinmn et al.^ 4 O. K., 
 Q. B. D. 295. 
 
 See Bernard v. Coutelller, 45 Q. B. 453, p. 500. 
 
 session in plaintiff and justification under a writ 
 of execution against the execution del)tor. The 
 learned judge at the trial told the jury that he 
 " thought it was incumbent on the defendant to 
 have gone further than merely producing and 
 jn'oving his execution, rtnJ Llmt if a transfer had 
 taken place to the pla'.ntiff, and the articles 
 taken and sold, defendant sliould have shewn 
 tl;, judgment on which the execution issued to 
 enable him to justify the taking and enable him 
 to sustain his defence " : — Held, that the sheriff 
 was entitled under his pleas to have it left to the 
 jury to say whether the plaintiff had shewn 
 title or right of possession to the goods in ques- 
 tion, and therefore there was misdirection. Mc- 
 Lean V. JIannon, 3 S. C. R. 700. 
 
 Seeir;»/7"/r/v. Kean, 1 O. R. 193, p. 501 : Camp- 
 hell v. Prince, 5 A. R. 330, infra. 
 
 8. Whe.rc V iirt ii jli/ainxl Evidence or the Wei'jht 
 of Evidence. 
 
 (a) Where Forgery in Alleged. 
 
 An action against the endorser of promissory 
 notes, who alleged that his endorsement had 
 been forged, was tried twice. On the first tri.il 
 tiie jury ilisagreed, and on the second they found 
 for the plaintiff. Xo expert evidence was offered 
 at either trial, though the defence intended was 
 fully known. The court refused a new trial 
 moved for on affidavits of an expert giving his 
 opinion founded on a comp.ni^on and critical 
 analysis of the defendant's handwriting, with the 
 endorsements. Mo/ier v. Snarr, 45 Q. B. 428. 
 
 G. Non-Direction of Judge. 
 
 An entry upon land under assertion of right 
 and a verbal submission by the occupant and 
 •consent to remain as tenant to the owner, create 
 tl new tenancy at will, and give a fresh point of 
 <lepartureunderthe statute of limitations. Where 
 the attention of the jury had not been suffici- 
 ently called to the question whether this took 
 place on the premises a new trial v.'as granted. 
 Smith V. Keoim ct ai, 4C Q. B. 1G3. 
 
 7. Misdirection oj Judge, 
 
 In an action of trover or conversion against 
 appellant, high sheriff of the county of Cumber- 
 land, N. S., to recover damages for an alleged 
 conversion by the appellant of certain personal 
 property found in the possession of the execu- 
 tion debtor, but claimed by the respondent, the 
 pleas were a denial of the conversion, no pro- 
 perty in plaintiff, no possession^'or right of pos- 
 
 (b) Where Verdict does Substantial Justice. 
 
 The plaintiff claimed to recover against the 
 defendant, as administrator of his deceased broth- 
 er W. G., two sums, one of .?800, which she 
 alleged \V. G. received for her from another 
 brothel-, S. G., also deceased ; and the other of 
 §1,500, which she alleged W. G. promised to 
 leave her in consideration of her remaining with 
 him, taking care of, and managing his house as 
 long as he lived. It was objected that evidence 
 was admitted of statements made by S. G. of the 
 amount he intended leaving the plaintiff. The 
 objection was first taken during the examination 
 of a witness, C, after the plaintiff had been exam- 
 ined and cross-examined as to such statements 
 without objection: — Held, that no substantial 
 wrong or miscarriage was occasioned by the ad- 
 mission of C. 's evidence ; and therefore under the 
 O. J. Act, Rule 311, it was not a ground for a 
 new trial. Cook v. Grant, 32 C. P. 511. 
 
 See Bernard v. Coutellier, 45 Q. B. 453, p. 500- 
 
 (c) Other Cases. 
 
 This case, being an action for an assault against 
 a public officer, in which the jury had found a 
 verdict for §100, and a new trial asked for on 
 the ground that the verdict was against evi- 
 dence was refused, the Court of Appeal granted 
 a new trial, as the evidence strongly preponder- 
 ated in the defendant's favour and there was rea- 
 son to believe the jury had been misled by the 
 charge. Campbell v. Prince, 5 A. II. 330. 
 
504 
 
 kUt a writ 
 
 )t()r. The 
 ry that he 
 
 femlant to 
 luciiig and 
 
 'iiisfui- had 
 he ai-ticles 
 
 ivc shewn 
 n issued to 
 enable him 
 
 the sheriff 
 t left to the 
 lad shewn 
 (Is in ques- 
 jtion. Mc- 
 
 01 : Ctimp- 
 
 )• the Wehjlit 
 
 I. 
 
 promissory 
 ■iemeut had 
 le first trial 
 they found 
 was offered 
 tended was 
 a new trial 
 t giving his 
 ind critical 
 iig, with the 
 Q. B. 428. 
 
 I Justice. 
 
 against the 
 eased broth- 
 which she 
 •om another 
 the other of 
 promised to 
 laining with 
 his house as 
 liat evidence 
 
 S. G. of the 
 lintiff. The 
 examination 
 i been exam- 
 , statements 
 ) substantial 
 d by the ad- 
 )re under the 
 ground for a 
 
 511. 
 
 . 453, p. 500. 
 
 sault against 
 had found a 
 asked for on 
 against evi- 
 [leal granted 
 y preponder- 
 iiere was rea- 
 lisled by the 
 R. 330. 
 
 505 
 
 NEW TRIAL. 
 
 ri('G 
 
 
 Upon a rule nisi calling upon the plaintiflF in 
 an action upon a policy of life insurance to shew 
 cause why a verdict obtained by iiur stiould 
 not be set aside and a nonsuit or verdict entered 
 for the defendant ]nirsuant to the Law Itefoiin 
 Act, or a new trial liad between the parties, said 
 verdict licing contrary to law and evidence, and 
 the tiiiiling virtually for the defendant ; aiid for 
 misdirection in that the jury had not been di- 
 rected on the evidence to find for the defendant; 
 the Court of Queen's Bench for Ontario, 41 Q.B. 
 197, ordered the verdict for the plaintiff to be set 
 asi'leand the same to be entered for the defendant, 
 while the Supreme Court eventually reversed 
 this orilcr and restored the verdict for tlie plain- 
 tif}', being of opinion that they had no power to 
 direct a new trial on the ground of the verdict 
 being against the weight of evidence : — -Held, 
 tiiat although the Court of Queen's Bench would 
 have had power to enter the verdict in accord- 
 ance with what they deemed to be the tiue con- 
 struction of the findings coupled with other facts 
 admitted or beyond controversy, they had no 
 power to set asiile the verdict for the plaintifl" 
 and direct a verdict oo be entered for the defen- 
 dant in direct opposition to the finding of the 
 jury on a material issue. Un<ler 38 Vict. c. 11 
 Dom., the .Supreme Court has power to makeany 
 order or to give any judgment which the court 
 below niiglit or ought tr. have given, and amongst 
 other thing's to orde/ a new trial im tlie ground 
 eitherof misdirection or the verdict being against 
 the weight of evidence ; and that power is not 
 taken away by s. '22 in this case, in which the 
 court below did not exercise any discretion as to 
 the question of a new trial, and where the appeal 
 from their judgment did not relate to that sub- 
 ject. Vonncctkiil Mutual Lit'n Ins. Co. uf' Hart- 
 ford V. Moore, (i App. Cas. C44 ; (j S. C. K. 634; 
 3 A. R. 2.m 
 
 Although the Privy Council have the right, 
 if they think fit; to order a new trial on ; ny 
 ground, that power will not be exercised merely 
 where the verdict is not altogether satisfactory, 
 but only where the evidence so strongly prepon- 
 derates against it as to lead to the conclusion that 
 the jury have cither wilfully disregarded the evi- 
 dence or failed to understand or appreciate it. 
 
 See Baillie v. Diction, 46 Q. B. 167, p. 77. 
 
 ground that he had not sufTicient interest, or was 
 not the proper person to sue. Tiic court, with- 
 out deciding as to the plaintiff having no right 
 of action, or the ciuict of 1!. S. 0. c. IK!, s. 5, 
 set aside the nonsuit and directed a new tri.il, 
 with I'.ave to the plaintill's to add as co-plaintiffs,, 
 any or all of the consignees, or endorsees of the 
 bills of lading, the evidence alicady given to 
 stand, with any additions the parties might de- 
 s-'iC, reserving all costs. llntihi v. Merchautu 
 JJespatrh Co. et at, 2 O. 11., (,>. li. D. 385. 
 
 The validity of K. S. 0. c. 116, s. 5, was dis- 
 puted on the ground that it was ultra viret as 
 interfering with trade and commerce, but the 
 court refused to decide the point without notice 
 to the attorney-general and minister of justice 
 under 46 Vict. c. 6, s. (i, O., whicli would involve 
 great delay, antl adopted the above course as 
 being the speediest and least expensive. lb. 
 
 III. Ox WHAT Terms. 
 
 Where an indictment for obstructing a high- 
 way had been removed by certiorari, at the in- 
 stance of the private prosecutor, into this court, 
 and defendant had been acquitted : — Held, that 
 there was no power to impose payment of costs 
 on such prosecutor. The court, however, has 
 power to make payment of costs a condition of 
 any indulgence giauted in such a case ; such as 
 the postponement of the trial, or a new trial. 
 licijina v. Hart, 45 Q. B. 1. 
 
 9. To Amend Pleadings. 
 
 A part of the claim in this case extended be- 
 yond six years, but no application was made at 
 the trial for leave to plead the Statute of Limi- 
 tations as to this. The court, under the circum- 
 stances, refused to grant a new trial to enable this 
 defence to be set up. Cook v. Grunt, 32 C. P. 
 5U. 
 
 The plaintiff consigned goods to parties in Eng- 
 land and sliipped them by defendant companies 
 on bills of lading, describing them as shipped by 
 
 the plaintiff to tie delivereil to , order, or 
 
 his assigns, he or they paying freight. The 
 plaintifl' endorsed the bill of lading to various 
 parties in England to whom he had sold the 
 goods, the consignees paid the drafts tlrawn upon 
 them for the price, and the goods having been 
 seriously damaged in transit they made claim 
 upon the plaintiff for the loss. The plaintifl' now 
 sued for the damage and was nonsuited ou the 
 
 IV. Determining Question in Dispute on 
 Motion for New Trial. 
 
 Under Rule 321, 0. J. Act., the court may, 
 upon motion for juilgment or for a new trial, if 
 satisfied that it has Ijefore it all the materials 
 necessary for finally determining the (juestion in 
 dispute * * give judgment- ^>.;cordiiigly ; but 
 per Wilson, C. J., uiujuestionaldy that power 
 must be most sparingly ami cau^icjusly exercised. 
 ateivart et at. v. lioundu, 7 A. 11. 515. 
 
 V. Appeal in Applications for New Trial. 
 
 Although the jurisdiction of the Court of Ap- 
 peal is not limited in ap))eals from the County 
 Court a.i it is in appeals from the Superior 
 Courts, under sec. 18, sub-s. 3, of the Appeal 
 Act, it will not in ordinary cases interfere where 
 a new trial has been refused by the County 
 Court upon a matter of discretion only. Camp- 
 hell V. Prince, 5 A. 11. 330. 
 
 Where a County Court Judge granted a new 
 trial owing to his dissatisfaction with the verdict 
 the court refused to interfere with his discretion 
 as it did not appear that he was clearly wrong. 
 Hunter v. Vanatone, 6 A. K. 337. 
 
 In an action for negligence in not keeping a 
 road in repair, the jury found for the plaintiff. 
 A rule nisi having been .3ubse(iuently obtained to 
 enter a nonsuit, or tor a new trial, this court 
 made it absolute to enter a nonsuit. On appeal 
 the court allowed the appeal, (6 A. R. 181) Init 
 made no order as to that portion of the rule nisi 
 in which a new trial was asked, leaving it to be 
 disposed of by this court : — Held, that the rule 
 
iNOTICE 
 
 (;; 
 
 til 
 
 «< 
 
 t 
 
 IP-' 
 
 C, 
 
 
 It*-' 
 
 508 
 
 (ini'ct tills rdiirc ici fcopcii tlic niKMir rccniisKliT 
 tlic ([iicsti'iii \\ li( tlicr, ill tliiir ilisiTctidii, a lu^w 
 trill sliniilil lir t:lllMl((l. Willtnii el ii.r. V. '/7(c 
 
 ('•,r/iiii'<ili(iii III' l/ii' Ciiiiiiii/ III' }'oi/,\ ;{'i ('. I', ."t"), 
 
 \"1. Misci'.i.LANKors Casf.s. 
 
 Tlio ]il!iiiitilT was pirinittcd to ])nicnril with ;i 
 IK'W trial ))iiiiliiii,' an apin'iil, wlicio lui siiuwi'd 
 that lie h:iil aire inly lii'cii iiic()nvi!i)ieiu;i:il liy dc- 
 lay, that fiirflii-r del ly wcnild projiidici' liiin 
 tiiiancially, and that hy it he iiii^lit icisi' iiniior- 
 taiit dial cvidciift.'. MrUonidil \. M iirriuj el (d. , 
 it P. K. 41U. —Winchester, Jiiii'istrar (J. if. l).~ 
 Magarty. 
 
 The court lioldw disiiiisscd a hill lilicl to en- 
 t'orce a ul iiii for daiiiaj,'e.s sustained hy an 
 excessive valuation of land by the lirotlier and 
 ]iartiier of the ]i!iiil valuator duly appointed liy 
 the plaintill's, on the j^'ioiiiid th it it \v is not 
 sh.'Wii thiit the valuation w is made frauilulently. 
 I his Court, while dilteiiiij,' Iroiii sueh view, de- 
 eliiied to reverse the decree and ordered a new 
 trial, at which the evidence of one of the de- 
 leiidants already taken ini;;ht he used, in the 
 I vent of his then heiiiL; out of the jurisdiction ; 
 hut ordered the defendants to Ji ly the costs of 
 tlu' appeal ; the new trial to he without costs in 
 t lie court below. 'I'/ic < 'aiiin/'i Lmiilcd (.'rcdit Co. 
 V. Tlioiiijixoii it «/., 8 A. It. (i'JIJ. 
 
 See Cirhihtoii v. ChUtirh it uL, 7 S. C. 11. 348, 
 p. ")() ; Viniiifiiicnl Mulniil l.ifi' /ns. Co. ot' Ilirt- 
 I'lird V. Movri', App. Cas. G44, p. .j05. 
 
 NoysuiT. 
 
 New Trial ah to Somk. TorHTs and Nonsuit 
 AS TO Otiikks -.Vcr- Nkw Tkial. 
 
 The verdict hfrein was set aside hy the eouiity 
 I court, and a nonsuit enteiH'd upon a ground not 
 I taken as a defeiici^ at the trial or in the luht nisi : 
 — Held, reversing the jiidgiueut that the learned 
 judge erred in giving t^tlect to the objection, 
 which, if tak(.'n at the trial, would have been met 
 b^ an ameiidiiient. As the evidence sIicwimI that 
 the plailitid' was entitliMl to siic(!eed ujiou tlie 
 merits, the ajipeal was allowed and the rule in 
 i the (Miurt below discharged. Clarke I't at. v. 
 i liiirriiii, (> A. |{. :«)!». 
 
 In an action on a life policy tried betoroa judge 
 and a jury, in aceordaiicc' with th<! jirovisioiis of 
 •il \'ict. (;. 7, s, .'(2, (Int., the learned judge, in 
 jilace of re(|' iring the jury to render a general 
 verdict, directed tln^m to answer ccrt.iiii ipies- 
 tieiis, and the jury having answered .all tile 
 (juestions in f.iv<inr of the plaiiitiir, the judge 
 entered a verdict for the pi lintitl'. Upon a rnle 
 nisi to »)ie\v c.iiise why this verdict should not 
 he set asiih^ and a non-suit or a verdict entered 
 for defendants pursuant to the Law lleforin .\et, 
 or a new trial had lietween the (larties, s.iid ver- 
 dict being contrary to law and evidence, and 
 the linding virtu illy for the defendants, the 
 Court of Queen's Bench (41 i). H.4!»7) mide the 
 rule absolute to enter a verdict for the defen- 
 dants. 'I'he appell.int then ajipealed to the I 'oiirt 
 of -V ppeal for ( )iit irio, and the court being eipi illy 
 divided, the appeal was dismissed (.'{ A. I{. .'(HI). 
 Per (Jwyime, ,1., that the jilaintill" never could 
 have been non-suited in virtue of .'{7 Vict., c. 7, 
 ?• Xi, Out., as it is only where it can be said that 
 there is not any evidence in su[ii)ort of the plaiii- 
 tiir's case, that a non-suit <Mn lie entered; and 
 that in this <Mse, the proper verdict which the 
 l.iw re'iuired to be cntciHsd upon the answers of 
 the jury was one in favour of the |)laintill'. 
 [Monrrv. 'J'/ii' f'liinii'r/irnt Miiliiiil L'th' Inn, Co., 
 ' nf Hartford, tJ S. C. R. (>;U. See .V. V. (i App. 
 ' Cas. 044, p. 50.5. 
 
 NEXT FKIEND. 
 See H USD and and Wife. 
 
 NON USER. 
 
 Per Hagarty, C. J. : — Semblc, that upon the 
 defenilants ceasing to use the lands for the pur- 
 pose of a railvv.iy :tation, for which alone they 
 had been conveyed, the grantor would be at 
 liberty to resume possession. Ji'txnp v. The 
 Grand Trunk Ji. H'. Co., 7 A. K. P28. 
 
 NEXT OF KIN. 
 
 See Distribution of Estate. 
 
 NON JOINDER OF PARTIES. 
 See Pleading. 
 
 NOTK^E. 
 
 I. Of DiaiioNorK — .SVc Bills ok Exi;iianoe 
 and Puomlssouy Notks. 
 
 II. Of Ali.otmf.nt of Si-ock and Call,s — 
 
 See COKI'OHATIONS. 
 
 III. Time for Atpealino and Notice — 
 
 See Court of Appeal. 
 
 IV. To Produce— .SVfi Evidence. 
 
 V. Notice for Jury — See Jury. 
 
 VI. Notice of Motion — See Judgment — 
 Practice. 
 
508 
 
 sm 
 
 OIIDNANCH LANDS. 
 
 6i0 
 
 X'll. In l'i{(i('i',KiiiMis ON Mdiii'cAdKS — See OATH. 
 
 •^'""■'''■^"'■'' r. .\K..ll>.\Vns-,SVr A|.-HT»AVIT. 
 
 VIII. Vruurvnns am. XonrK ,„,. Hv-Lanvs- ,, A.,..K.aAS,.K-.SV<. Al>kn. 
 
 S, r Mi'MCII'AI. ( l)l!['l)UA'll((NS. 
 
 IX. 'I'DitM- Ni)ii('i:~-.S'(( I'ltAciicn:. 
 
 X. Ok Tuiai.-.V'c TiiiAi.. OFFICE AND I'UIUJC OFFICERS. 
 
 XI. Uv I;k,iisiuation ok IssrnrMKNrs^-.SV. i.,,,,,,.,„.,,„„,, ,„i,s,s,, ^kom Okk.cial Ai- 
 
 I : i.'i ! i^'l'l' \- I t \«'v . . 
 
 llK(Jisiin Laws. 
 
 To an iictiim tor tlw' no!i-<l(iliv('rv "f i^'ooils tlie 
 •il(:fcnil-uil.'< s 't iiji t liat tlicy iluly ciuTicij iinil ilc- 
 livori'il til" H liil ;,'(mhIs to tlio ]il:iiiitiH', Uut tint 
 tilt' ]>l:iiiitill' dill not, as n(|nircil l.y ono of the 
 ti-'inisot' tlif -^iiiTiiil COM 1 1" let rnti'i'cil into lictwcon 
 tliu partii'-i. ,!,'ivc' tlic ilclVnilant.s within ti.irty-six 
 lioui's thiTi'at'tcr notici' of any dainago or loss, 
 Hcu. : -llc'M, that th' dufcncn^ failiid, as the uvi- 
 ihmci: sIicwimI that the goods wuro miver cari-jcMl 
 oi- dtilivcri'd lis alleged. S/cilc \. (Irand 'J'ritiik' 
 
 II. ir. r.,., ;ii c. i". ■->.«. 
 
 I'lirchascof l.iiid \\ith notice of will destroyed, 
 hut not registered. .See //'- J)in-in, '27 (.'hy. I!l!). 
 
 I'OINI'MI'.NTS AND Ar rs — S'l c I'JVIDKNI'K. 
 
 I'fcr Iiitehie, C. .T., neither tlie enginiHir nor 
 tile (derk of the works, nor any suhordiiiate otli- 
 cor in charge of any of the works of thi; Doniiiiion 
 of ( 'aiiada have any jiower or aiit'iority, exjircMs 
 or iin])liiMl, under the law to hind the crown to 
 .my contract or expenditure not sjii'cialiy an- 
 thori/iMl hy the express terms of contract duly 
 eiiti'red into h, 'tween the erown ainl the cm- 
 tractor, according to law, and then only in the 
 spccitic niinner proviilud for liy tli'J express 
 
 I teriiis of the contract. WHrii'ii v. T/ie Qii"i'ii, 
 
 I 4 S. ('. li. 82!». 
 
 1 Held, that K. S. (). e. 1SI», which forhids thu 
 Notice re(|iiireil in curo of exjmlsion of mom- ! profanation of the Lord's day liy persons cai'ry- 
 
 ing on tlunr ordinary husiness, does not apply to 
 persons in the imhlic service of Her .Majesty, and 
 therefore a conviction of a government lock- 
 tonder on the Welland Canal, for locking a ves- 
 sel through tlit^ canal on .Sunday, in oliedience to 
 the orders of his sii](crior. was iprisheil. liiijlna 
 V. Jicn-imnii, 4 O. 1{., (.). 15. I). 'iS-i. 
 
 ,,,, ,. . ,, , ,, ,, Purchase by township clerk of lands at tax 
 
 Ihe notice of the party resigmiig the c.thcc ' ^.^,y ^^^ y^,.,,^.,,,/ ^ Juhmton, \V1 C. P. 301, p. 
 
 ot oouiicillcr tiii' a villngi! to which he had been i ,.,. 
 
 fleeted, stated that he resigned his "seat" in thi^ " . 
 
 council: -Held, sullicient ; and that the plaintitl i Action for assault against a puhlie olhcur.— 
 
 was entitled to his costs, althoU'j;h the .Muiiic i|)al ' New_trial. See Canip'/r/l v. rriao; ;> A. 11. 3:{0, 
 
 Act reipiires notice of a resignation of the "oHici^' V '''• 
 
 hers of a CO) poration. Son <'iiiiiiiiii y. The 'I'lir- 
 (into Ciirii K.rt'/t'itiije, '} A. I!. "JUS, p. IK! ; Mur.ili 
 V. //(/)•')/( ('i.//,,j,.'-27 Chy. ()().'), p. I4(; : l/LInhin 
 St. JiiKrpli lie .\liinlr<al v. Lu/iierre, 4 S. C. 11. 
 104, p. 177. 
 
 Notice of meet ill'.' of directors of cor] loratioii. Sim^ 
 McLaren el „/. v. i'ld-i ii ef <iL, "28 Chy, 3,')l!. p. 141 . 
 
 to he 
 
 .')'.(!». 
 
 jiven. Smit/i v. /'eler.ii'i/le. ^^^ ('\iy 
 
 The notice of intention to pass a liy-law to 
 close a road should state the (lay on which the 
 nninicipal council intend considering the hy law. 
 Ill re Jiii'il.iiil/ (/ III., iiii'l the (Jiiriirirtiliijii uf the 
 Tuii'iiMj, i,f A-<jihoilel, Vi, i.l B. 14'J. 
 
 Notice of alter.ition in promissory note. See 
 Siniitliiiiil V. Jhiril.^,,11 el ,(/., li O. R. 320, p. 75. 
 
 Notice to solicitor, notice to client. See Broion 
 V. Sw'-et, 7 -\. K. 72.-) ; The /{nil EMiite /iire.it- 
 iiieiit Co. V. The .Uetropolitaii Buildim/ Sucieti/, 3 
 O. R. 47l>. 
 
 Held, that the defcmlant in tliis ease having 
 notice of an actu.al travelled way across his land 
 was atfecteil ,ilso with notice of the origin as well 
 as the existence of the right. iJicoii v. Crusts, 4 
 O. R., Chy. D. 405. 
 
 Action f' r slander against jmhlie officer.— 
 Trivilegi^d coinmunication. See Deire v. tViiter- 
 Ijiiri/, (is. C. U. I4,S, p. 20(i. 
 
 OIL LAND.S. 
 
 Right of Tenant to liore for oil. 
 V. Johnston, 21) Chy. (i7, p. 31(5. 
 
 Sue Laricey 
 
 ORi)]:iis. 
 
 I. Of Jvvxiv.—See PuAt^ricK. 
 11. To PrioDUCK— See Eviuknce. 
 
 NUISANCE. 
 
 I. Injctnctio.n to Re.strain — See Injunc- 
 tion. 
 
 ii. power.s and ijlties of municipalities 
 — See Municipal Corporations. 
 
 Railways on highways — Acquiesence of Muni- 
 cipal Council. (See The Cor/wrntion of the Town- 
 .i//i> of Pembroke V. The Civuida Central H. W. 
 Co., 3 0. R. 503. 
 
 ORDERS IX COUNCIL. 
 
 Magistrate cannot take judicial notice of. 
 Soe AV;/i;ia v. Bennett, 1 O. R. 445, p. '242. 
 
 ORDNANCE LANDS. 
 
 Rights of Northern Railway over ordnance 
 lands ill the vicinity of Toronto. See The < Irand 
 Trunk li. It'. Co. of Canada v. The Credit. Val- 
 lei/ R. W. Co. of Canwla, and The Northern R. 
 (('. Co. of Canada, 27 Chy. 232, p. 194. 
 
511 
 
 PAULT A MENTAllY ELECTIONS. 
 
 511 
 
 OTTAWA ((ITY OF). 
 
 KiiHtcrly liimiKlaiy of, Sci' /'I'l/iun v. Tin' for 
 iiuralioii ol' tin CoKiily ol CurliUin, 1 O. ]{. 'J77. 
 
 ■J 
 
 
 JSIlii 
 
 OVEJUIOT.DINO TENANT. 
 
 *'(•(> LaMH.OIU) AM) TkXANT. 
 
 PAHKiNT AND CHILD. 
 
 I, THANSACnoNS Bl'.TWKKN, oil. 
 
 II. LiAiiii.riY OF Pakknt for Debts of 
 Child, 51 1. 
 
 III. Undue Inflikncf; — .SVr Fraud and 
 
 AllSUKPUKSKNTATION. 
 
 IV. Action r.v I'ark.n r for Death of Child 
 
 FituM Ne(M.u;ence — Sci' Necli- 
 
 (IKSCE. 
 
 V. Seduction of Child — fiee Seductiox. 
 
 VI. Infants— .SV( Infant. 
 
 VII. Farmers' Son.s — See P.vrliamentary 
 Elections. 
 
 VIII. Illeoituiate Child— i^ee Ba.stard. 
 
 I. Tkansaction.s Between. 
 
 The defendant in 1871 wrote to his son, who 
 had left home to work for himself, tlmt if he ! 
 would return he would give him 50 aeres of his | 
 farm and a share of the eattle and sheep when 
 the plaintitl' got married, but if he stayed awaj' 
 he would sacriliee his own and his father's inter- 
 ests. Uiiou receii>t of the letter the plaintiff 
 returned and remained on the farm working it 
 with his father, except at eertain times when he 
 went away to work for wages for himself. It 
 was proved that the father had pointed out the 
 60 acres which he intended to give his son, and 
 the son entered and erected a house thereon 
 with his father's a))proval, and occupied it with 
 his family, he having married in 1879: — Held, 
 that the plaintiff was entitled to specific per- 
 formance of this ag' ement. Garaon v. GVovsoh, 
 3 O. R. , 0. P. D. 439. 
 
 Money lent by son — Bona tides. 8ee Juc/c v. 
 Greiij, 27 Chy. (i, p. 292. 
 
 See also Datiferd v. Dan/erd, 8 A. R. 518. 
 
 11. Liability of Parent for Debt.s of Child. 
 
 Plaintiff, upon their order furnished to several 
 of defendant's sons, who wei'e at the time living 
 with their father, certain articles of wearing 
 apparel, charging the same to defendant, am' 
 delivering them at his house. Previously to this 
 defendant had caused to be inserted once in one 
 A the daily papers published in the place, and 
 taken in by the person by whom plaintiff was 
 employed, a notice to the effect that he would 
 not be responsible for any debt contracted in 
 his name from that date without his written 
 order, but after the goods in question had been 
 furnished to his sous, he wrote to the plaiutiff 
 
 stating that he would not in any way be ic- 
 8jp()ii(*ii)le for any dulit incurred by any of lijs 
 sons from and after that date unless unilcr his 
 written order; — Held, that in the absence ol 
 evidence repelling tiie presumption of dclendant's 
 authority to his sons to contract the liability in 
 his name, the fact of the delivery of the articles 
 at the defendant s lioiise for his sons, and the 
 language of his letter to jplaintitT were (juite siilfi- 
 cient to justify the jury in finding defondant 
 liable, and tiiat it was not iicces.sary to go further 
 •and prove the infancy of the sons. Bui/iikih v. 
 Hewurd, 18 C. P. 353. 
 
 PARLIAMENT. 
 I. Powers of — .SVe Constitutional Law. 
 
 II. Elections— iS'te Parliamentary Elec 
 
 TIONS. 
 
 PARLIA^klENTARY ELECTIONS. 
 I. Law Governing Election.s, 514. 
 II. Election of Members. 
 
 1. Property Qualif cation of Candidates,. 
 
 514. 
 
 2. Diiiiiualijkation oj C'andidaieii. 
 
 (a) Notice to Electors, 514 
 
 (b) Otlnr Caaeo, 514. 
 
 3. Xoinincftion, 515. 
 
 4. Votern. 
 
 (a) Axsetoonent Boll and Voters' List.. 
 
 515. 
 
 (b) Votimj and Marking Ballots, 519. 
 
 (c) Naturalized Subjects and Aliens^ 
 
 521. 
 
 (d) Property Qualification, 522. 
 
 (e) Income Qualification, 525. 
 
 (f) Disqualification, 525. 
 
 5. Marls on Ballots by Deputy Returninij 
 
 Officers, 52(j. 
 
 6. Proceedings to Enforce Penalties. 527. 
 
 III. Scrutiny and Recount, 528. 
 
 IV. Agency. 
 
 1. Generally, 528. 
 
 2. Individual Agents, 529. 
 
 S. Members of Committees, 532. 
 
 4. Members of Political Associations, 533. 
 
 5. Sub-Agents, 5.34. 
 
 V. Bribery and Corrupt Practices. 
 
 1. Generally, 535. 
 
 2. Bribery. 
 
 (a) Generally, 537. 
 
 (b) By Candidate, 537. 
 
 (c) By Agents, 540. 
 
 (d) Evidence, 541. 
 
way l)c re- 
 y iiuy (if his 
 ss under liis 
 .! aliHL'iiee ot 
 i|'ilct'eii(l;uit'w 
 le liability in 
 f the articles 
 KiiiM, iiiul tlie 
 re quite stitli- 
 ig (lefmiilaut 
 to go further 
 
 Haniiian v. 
 
 lONAL Law. 
 
 STARY ElEC 
 
 noNS. 
 
 ?, 514. 
 
 f CandklateSy 
 
 dateii. 
 .14. 
 
 I Voters' List.. 
 
 J Ballots, 519. 
 
 ,1 ami Aliens^ 
 
 io)), 522. 
 
 uty Jieturniiiif 
 
 ''enalties. 527. 
 28. 
 
 532. 
 ociatiom, 533. 
 
 ACTICES. 
 
 .'513 
 
 PAiiLiA:\ii-:NT.\i;v i;Li:( tioxs. 
 
 ai 
 
 3. Tr(((/Iiii/. 
 
 (a) f.'i uirallji, ')M\ 
 
 (I)) A'// ('((ildiildl' ■■<, ."itfi. 
 
 (e) /)'(/ Ai/iiih, ,")17. 
 
 (d) % (V//( /• J'(i-soii.<, .J IS. 
 
 (f) J< MidliiiiA, .-48. 
 
 4. J/ir'ni'l Cdiifi i/tiiic< s, ,-.-0. 
 r>. J/iiiinj L'ooiiiK, Of-'J. 
 
 (i. I'liijiiiij Ctmniiixir.f, o't'2. 
 
 7. Uiiilnr liiJIuDire, SoS. 
 
 iS. liilt'niij, r).')4. 
 
 !). Frciiiiliili 11/ Di rii-i, 'h>'). 
 
 10. ..■Ic^-.- o/' TihliiKj Xd/iirc not (!(/'( c/iiKj 
 
 rciilt III' Elti^l'iOii, 7)7)7). 
 
 11. Arriiuiil.-i iif E.iiiiiidiliin. 7)7)7). 
 VI. (Hlur ('nriitjit I'm >■/!(■(■■<, .■.'(>. 
 
 A'l. OrcN 'I'w i:;ns AMI 'J'Kr..vriN(; on Ei.kc- j 
 
 TKiN I»AV. .)')(!. i 
 
 VII. Dl.S(ilAI.IIM ATKiN l;V Itl.ASON OK Coii- 
 
 Ki'i'T 1'i;ait]('i;s. I 
 
 I 
 
 1. Of (■(iiidHid/c.-', 7a;o. I 
 
 2. 0/Olhir 2\ivoiis, 7j&2. | 
 VIIL Tkiai. (irCdNTiinvKiiTKiiEi.r.cTiox.s. , 
 
 1. Ctiiirf fur Trial, 7)C)2. \ 
 
 2. Prtition. 
 
 (a) PilitioHcrs, r)(33. 
 (1)) Fiinii fif, oO.-). 
 
 (c) Ami iidiiKiit of, .-(15. 
 
 .^. Partii-idiu:-<. 
 
 (a) ill HI I'ulhj, .j().j. 
 
 (b) Ami udiiii-iit of, 500. 
 
 (e) J'iliiiij, ."i()7. 
 
 (d) I'riHiiiiiiiirij OI'Ji r/io/ifi, 5G7. 
 
 4. Fispondi'id's An.sirrr, 5(58. 
 
 .'■>. C/'o,v.s Pitition, 5()8. 
 
 0. Sii'iirilii, 5(JS. 
 
 7. llicriiiiiiiidorij Chanjcs, uG9. 
 
 8. Adiiiisxiioi.'i of Corrupt Practices hi/ 
 
 Aijcid.-i, sot). 
 
 9. Efiihnce, .570. 
 
 10. Willidrairal of Cliurijc or Petition, 571. 
 
 11. Co.v/.s', 571. 
 
 12. Pesirrimj Special Case, 574, 
 
 13. iV\w 2'r(«^ 575. 
 
 14. Jiidije'sPeport, 575. 
 
 15. Practice in Ajijxul, 575. 
 IG. 0</(c')' tVwes, 576. 
 
 i. Law CiivKKNiNi; ]';m;iti(in,-i. 
 
 'I'hp fonmiiiii liw (if l'!ii;.;taU(l rcliitliii,' to jiar- 
 liaiiieiitary elcitioiis is in force in Ontario, and 
 a|i]ilii,'S to cleetioUH fu!' liui lluuso of Cuninions. 
 
 Cnriiiriil/ J\/irti',ii {/)i,,ii.) — Jli'n/ill V. Mardoiiidd, 
 
 1 (1. i;. c. .-1 17. 
 
 'I'lu; lloniiiiiou lilt . ticii.S .Act of l''^7l does not 
 allVct tile rii:hts of j'iirties in jicndiM;.,' indeicd- 
 in.'s, s\ liicli niii.'^t liu decided ai^cordiiit; to the law 
 as it exi.sted iiefore tht.' jia.s.siny of tliat Act ; x. 
 20 of tliat Act referring to c^.ndidatiH at .S(Une 
 fntnreelectioii. A'i)/'//( Viclnria E/' rlijii ( Omii,) — 
 ('a Hill oil V. Maclniiiini, 1 It. 10. C, ."iSl ; 10 C L, 
 J. '1\~. .See the next ca.--c. 
 
 If. Jh.i-.i TioN <);■ Mr.Mi'.nns. 
 
 I. /'rojiir'i/ (Jiiii/ijiciifi'iii of C'liiiilidit/en. 
 
 Ilehl, a.s in the last ease, tint tlu! Itonunion 
 I'.leetions Act of l'S74 not licii..' rctrosnectivc, 
 the (nieslion of property i[r.a!ilic,Mtion of candi- 
 dates at elections Iichl heforo tiic vat'-iiuH of tlie 
 lOleetions Act of 1873, can still lie raised in pcnd- 
 in^r CM.scs, Ciirdirill Hlirtimi (j'Juni.) — lliiriffit 
 ii/.y. Ciiain'on. 1 II. i;. C. (Ul ; 10 Cl. L .1. 2;!i). 
 
 Ilehl, that it i.-i not iuioe.--:a]y for an elector, do- 
 nianiliuythe property 'jualilicatiou of a candidate, 
 to tcadcr the necc.i--ary declar ttion for the can- 
 didate to make ; the intention of the i t:itute lic- 
 iny that t!ie cmdiilate niunt prc['HiX' hi.s dv.w 
 deelaialiou. /'/. 
 
 (See 2\'iirtli Viflnrin Eli'dinn (Di:iin.)—Catner<>ii 
 V. MarliiiiiKH, 1 11. E. C. .")S4, p. 7)i')i. 
 
 [See 47 Vict. c. 4, Out] 
 
 33 
 
 2. JJi.-iiji'itlijiciiliim of (.'iDidiiliUitt. 
 
 (ii) Xoth-e to Electors. 
 
 The rcspouihait, a postmuHter in the .service o' 
 the l)oniinion of Canada, hecanie a cnudidatc :it 
 an election held on the 1-lth and 2lHt March. 
 1871, and Mas elected. On the 11th March he 
 re.si;,'ned his ofHce of postni;i.'3ter, m luch Was ac- 
 ceiited liy the I'ostniaster (Joueral on the l',t!i 
 2*larch. His aeconi.ta with ,tho I'ost Office de- 
 ])artnient were chLHed and his suoces^^or appoint- 
 ed after thelelection. I^videnoe of the notoriety 
 of tiie alle;!ed disqu.'diiication of the respondi'nt 
 was given, M'hieh ^vas that such alleged disqiia- 
 litic^itiou was a matter of talk, and that all tlie 
 people at the meeting for the uoniijiation of cau- 
 didiites were supposed to bo aware of the snp- 
 jiosed difficulty as to such disfjualitieation : — 
 licld, thiit even if the respondent was disquali- 
 lied for election, the judge eoidd not on such 
 evidence declare that the electors voting for the 
 res[ionilent had voted perversely, and had tlvre- 
 fore thrown away their votes, so us to entitle ,he 
 jietitioner to claim the seat. IIVx/ Yock Eteeli,,/, 
 {(Jiil.)—Gruhaine v. Patterson, 1 II. E. C. l.")fj. 
 
 (b) Other Cases. 
 
 An election was held in January, 1874, umlcr 
 the Act of 1873, at which the petitioner and the 
 i-espondent were candidates, and at which the 
 respondent was elected. Thi.s election was avoid- 
 ed on the ground of corrupt practices by agents 
 of the respondent, connnitted without his know- 
 ledge or consent. A new election waa held, un 
 der the Act of 1874, at which the i>etitioner and 
 
i'.\i;i,i,\ \ii;NrA >v i;lK('TI()Ns, 
 
 010 
 
 tlin riiHIinll l"ll'. 
 
 •c 
 
 r 
 
 
 
 ^M 
 
 
 I 'ill)' 
 
 m 
 
 •nil 
 
 1 
 
 lifji 
 
 t 
 
 ! 
 
 ■1 
 
 il!1 rilHIinll l"ll, ,, '!f • 11,:; II I r HI ll I II'M, w |(',i t II' 
 Vi:i[> llnlcir W.l i.i;,Mill I'll' 't ''I TlliT 'll|l III I'l'ltll- 
 
 frpitih' 11 w.i- |ir.H.Milii 1, I'l^ir^iii^' tint tin ros- 
 
 |l'>l|i|'!llt WM.S ;,Milty ilf (Ml'nl|lf pi'l 'ti ' 'H ilt tills 
 
 last, ell' '111111 ; ill it li'i \v n ini'lii^iliji' liy ro 's m of 
 till! ciiniiiit II •t< of Ills ii,' •iit't lit tli'i fiiiiii'ir oldi!- 
 ti 111 ; til it |i"i'.s'ius ri|iirt'il ;,''iilty of i'.ii'iMi|it 
 yr.\ 'tii'd.s lit till! f'li'iu'r cliM'tioii ti'i il lii'l iiiiiini- 
 piirly V iti! I it tli.i lint liltii'tiiu ; iiul L'l.iiiiiiii,' 
 til'! s;':it, fiir t!i ! )) 'till 111 !!• ;— ll.il'l mi |iMliiiiiii i 
 ry 'I'lji! 'ti'iiis, (I) 'I'liit till) twt ('l"'tiiiiis wuro 
 riiin ill l.nv ; Mini \i \vn lint in it.'i'iiil tli it tli 'y 
 III I liiMii li.iM iiiiiliT 'liir.irciit Afts Ilf l',irli:nii iiit. 
 (•_'i 'I'll it till ri!S|i iiiiliiit «Ms int iii"li,'ilil(i lurni- 
 cl'.'tiMi, .IS tilt' iviri' i|it |ii'i"ti 'lis Ilf Ills ii^i'iits :\t 
 tlin f'lriii ■]' (ilii itloii Iri'l liuiiii cMiiiniitti'l ivitlimit 
 Ills Icilnwlii l'_,'ii or iMiis lilt, ('•irnii' I'l iy,'rfl>ii i'l) 
 {Dnii.) -/Ir/iiiv. M.fhn.ihl, \ II. I!. C (U7 ; 
 11 ('. li. .1, 81. I'.ilt Hill US \'i ;t, 11. 10, H. .-,, 1). 
 
 iSfu iilso \'l I. I, ji. i'liJO. 
 
 It. Xillllillll/loll. 
 
 'I'lio iirini!m.ti 111 |i:ip T nf It., Olio of tho nari'li 
 <1 it"^ at till! cliii'tinii roiiiiiliiin mI uf, w.i-i .":i,'.,'iiiiil 
 liy •_'.") |iiii'si)iis, aiiil li;iil tlin alii lavlt nf tlm .'it- 
 t ;stiii^' witii'iss iliily sworn tn ;i.s I'liiniri'il liy tlm 
 wtitiiti. Till iiliMtinn iiliii'k fiiiinl tliitnii'inf 
 tlm '2") ]i.'rsiiin «Mi not iiiitiii'ol on thu volin's' 
 lists, an I t!mi'iiiip in tli i I'.itiiriiin:,' otli 'or an I 
 <ilu itioii rliirk 'Miiipiri!:! tlm iiam.'.s on tlin iiniiii- 
 n Uion pap ir w.tli tlm I'l'i'tili.i.l vot^urs' listi in liis 
 p iss'Hsion, aii'l on limliii,; that only '_'l ol tlm 
 p:irs')ii3 who liinl so Hi^niil wci'ii iliily qnililiml 
 (iliiiilors, im riiJDi^Lil 15 's imiiiinaU ni pqvir, aiil 
 I'.'UuMi! I tlm \\u[) III' lull t as in iniW ir ulijut : — IliiM, 
 (1) Tlrili as thii poliny of tlm law is to have tin 
 .s irntiny, orin liltlo as possililu, in nK' 'tion I'as.'s, 
 an I to 1,'ivi.! tlm piipli' a full voioii in oh iisiii,' 
 t!i)ir r(i;inis lilt itiv.is, tlm 'lifniit in tli.i noiuin.a- 
 tl 111 papir w.is mm to wliiiih tlm rutiiriiiir^otlii ir 
 .sliiiil.l not ll ivoyiiiMi; I, ('_') Tli it if tlmi'lidtimi 
 ll 1 1 l;i)ii! oa til 1 il'ifci it ill tho iioniinatimi pi])"r 
 wiiiM not. ai iiirliii,' to lU V'int. u. 0, s. ,SI), 
 Irivo alFiitul til') r.M lit of tliu uloitimi. S'lu'li 
 R-nfi:;i' l':'-j-r„v\ {•!) {l)>m.)—Mr.K<iii rl al. V. 
 .\f;/)»i:lin, I If. R C. 7()."). 
 
 S'ln'ilo, that tlio rjtniMin,' o(R lur ii Iiitli a 
 iiiiuistji'ial .anl a jailiiial oirmir; an 1 that ho 
 niiglit ill! iliim t) niuiiivo tlm iioiiiinition of ]iur- 
 sins (lis'iualilii; I liy .status or nlli ui, anil also 
 n iminition pqurs si..;ii il liy iinqiialilieil poraons 
 if lie hail good rdasons for .so iloiiig. //;. 
 
 4. VotlTK. 
 
 (a) Aiii'.i.^iii'nt. RtUawl VuU-r.i' Liif. 
 
 Spodial report, and obsorvations on making tho 
 revised lists of voters tin.al. oKi"P[it as to niattcr.s 
 sulisuqnent to tho rin-ision. S/orni'iuf Eloction 
 (Ont.)-B'th>in<' V. (Jolqnhoini, 1 Jl. K. C. 21 ; 7 
 C. L. J. 21. S. 
 
 The name of the voter liciiig on the poll-'iook 
 ia priin:\ fauio cvidcnuc of his right to vote. The 
 party attacking tho vote may either call the 
 voter, or olTor any other evidence ho has on tho 
 suhjoot. Ih. 
 
 A voter lioing duly qu.alified in other respects, 
 and having his uamo on the roll and list, but by 
 
 mis' ik 1 iintiii'i! I .IS tiiiant inst.iil of o.i-imr or 
 
 o'lijiiiit, or viii.) virsi: -llild, not di^frii- 
 
 iiliisil iii'iiMly lioiiiH) his iia.iii; wis imtiri'l 
 
 III! lor on ' h ' III iiMt iitd nf .iiintlmr. /'<. 
 
 Tile only q'ii'*tioii as to tho qii ililin iti m of a 
 viitir siitllinl liy thiiiMiirt of r.'visiou iin lur th i 
 
 .\SS ISHIII 'lit .Vllt, is till' oil! of vain. I, - S''r'(/I (('/'.< 
 
 (VJ^'. ///. 
 
 II 'in^' rat 111 as tuiiaiit iiistna 1 of ow.i r ; 11 'I' I, 
 not to yX- 't, th 1 vol. Ill.in-'i ri'r. f'l. 
 
 Wii 'i-i' tlm vnti'r hid only riiniiivtid a. ih'i'd of 
 till prop irty on wlii^ili Im votml on tlm lll'^li .Vii- 
 gust, I.STO, lint pii'vions to that da^" had lii'im 
 assi'stiil for and p.iid t ixi'smi tlm pi in', Imt h id 
 not iiwiHid it; -lli'ld, that not pos^rs^il|g tlm 
 qii.'ililii' itioii at till' tiiiiii Im was as-inssi'd. or at 
 the linal rovisiiin of tlm roll, ho was not ciititliid 
 
 to Voto. -('lllli'lJH l''il<'. III. 
 
 Whi'i'i' a viitiir proporly assussod, who was aii- 
 I'iilfiitally iiiiiitted fr nil the votins' list for poll- 
 ing division No. 1, whiiro his inupi'ity lay, and 
 oiiti'i'dd on the viitiTs' list lor polling division .\o. 
 2 votiid ill No. 1, thniigli Hilton tho list, his vote 
 was hold good -- /,(■///.'.•< rule. /Ir'H'trillr h]lic- 
 Ihiii (Onl.) -h'linty. l<',l-:-iiiiiiw>iin, \ H. V..V,. 12!). 
 
 A.'s iiaino appo.irod on tho assossnmiit roll and 
 votiirs' list as owinir, lint no prop nty app i irod 
 opposit 1 his nanio : just lulow .\.'s iiiiim, tlm 
 iiaiim of li. w IS ontiini I .as tuiint, with oirtiin 
 pr.iporty following it, lint 15. 's nam i wis ii it 
 iir.i'ki't" 1 with A.'s. I'",vidoiiiio w is ,i liiiittod to 
 shi'W th it .\. owii'il tho proporty ii.ixt li 'low his 
 11 nil 1, for wliii'h 15. his toiiint w.is a-'so-isol as 
 t' in lilt, .111 I A.'s vote w. IS hold good. -//(/."/•'.■(('.>'('. 
 lb. 
 
 II ;M, (I ) Tint tlm ))rop:!r list of v it ts t ) b; 
 iHc 1 ,it an olootimi is "tlm list list of voters 
 •n ulii, oirtili 1 I, and dolivoro I to tho olnrk of the 
 po 100 at li'ast mm in iiitli liofnr.i tho dat.i of tho 
 writ to hold <noli oUiotion." (■_') Tnit.in irr.ign- 
 1 1 ir votors' list hid Iimii nsod in mm of tlm tow i- 
 ships in th i olootor.il division ; liiit that tlm 
 r.milt i/f tho (ilo itimi ha 1 not lin'ii aH'ootol 
 th iroliy, anil tint tho olootimi was not av lidod. 
 .Wrir/c /■:',;■/, oil (On'.) 'Jollhir V. .Mri hl.llniil, 1 II. 
 
 E. (J. 1.51. 
 
 Hold, following the list oaso, th it the list 
 of votors 1 1 lio imid at an olo ibion must lio tho 
 list ma lo, oortili id and dolivorod to tho olork of 
 tho pjaof! at lo ist one month lieforo tho dito of 
 tho writ to hold suoli'olootion. Tho list of votors 
 use 1 at tho olootion in tho towiishi[i of llillior 
 was notlilod until tho 2Sth Novoinlior, 1871, and 
 the writ of olootion was il.itod !)tli D.icomlier, 
 1S71 :--Holil, tint tho list of votors of 1871 
 should not have boon used, and the seat w.is 
 tlioroupon aw.irdod to the other candidato, he 
 hiving olit lined on a sorntiny a majority of the 
 votes. J'riw.c h'lioinl I'Mfct'im (2) (()iif.)—/)jr- 
 hindct itl. V. Mi-t'Hihj, 1 \l. E. C. KiO. 
 
 The mistake of tho number of the lot in the 
 assjssniJiit roll does not ooiiie under tin siiiio 
 rule as tlm mistake of a namo, as the latter is 
 providod for in the statute and tho voter's ovth. 
 SmtihUri'iirill- "lixlioii, (OiU.)—E'lii v. FriMcr, 1 
 li. E. C. I(i3. 
 
 Parol evidence ia inailmiasiblo on a scrutiny to 
 alter tho value assessed ag.ainst property in the 
 asaessmout roll. — Stewart's vote. lb. 
 
;MI) 
 
 :ut 
 
 V\ I!TJA >f i:XTA l; V KLH( TIONS. 
 
 MS 
 
 \\'lic'<'.'i Vdtri' wMs (issfinc (| fur |iiiiiMi'ty wliifli tliiir vciti^ urii' imt rt'i'i'i\nl ; iiinl i\ iri.vjnrity of 
 
 lie siiM nil till' 'JJlll Kcliniiliy, ISTI, lirliPi-i! tllf t llrlll Nt.lli il to tllr (Irput y I'll III liili^' njliicr tli.it 
 
 n'vi.''iiiii of tliii (iMMisNiiiriit lull, mill wiis iiol iin- I tiny ilcHircil In vcilr fiir tiu' ipciitioiirr. Tin' iio- 
 sc'ssimI fur ntlicr iPi'oiii'ity iif w hii'li 111' w.rn ill iiiis. : titiniur Iril a iiiiiimity «illiiiiil tlii'Hd votes: — 
 scs^iiiii MH (iwiiiT or tiiiiiiit, lie wns litlil not en- IJi'M, Ky the ('oiiit ol i^limrn'M JJi^iu'li ( illiriiiiug 
 
 /'' ' WilMuii, .).), no ^nminl lorHrttini,' imiiii! tlni oluo- 
 
 ■iiiliU', pur Wilson. J., 'I'liut, tlioiii'li tlio 
 
 titliil to vote, /'/(((.•('.•( riilf 
 
 A iiii'Hoii iiHH"MHi!il for Ininl lu! ilncs not own, 1 
 tlioM,'li I'ci'L'iviii;,' rent for it from a tciiiiiit, in n t i 
 
 i|l|:ihli''il to vote. ('/tirk'n r.i/r, l.ini'nlii ]Clri'- I 
 
 Inni {'i](ihil.) /'(iifliii,, V, /{,,/:, rt, I ILl'LCriOO. i 
 
 A \citor W'ln iihm(!ss(m1 in two \v;inl.s of a town ; i 
 111' 11 ii'ti'il witii \\\h |iro|irrty (jiialiliratioii in onu i 
 of llir wiirils, liut vutyil in Hiii'li wanl : -lli^lil, 
 that I liu vot(! iiii^'lit liu Hiiii|portijil on tlio i)iialili 
 I'llioii ill lliu other wanl, which, if tlm votur hail 
 votcil on it, woiilil liavt; niailu it neucsHiry for 
 liiiii to votii ill aiioliii.r [Milliii;,' (liviHion.- -(f'i'(- 
 ^ tn' ''lift'. lit, 
 
 I'artinnlar.s for n Hi'i'iitiiiy of vi'iin wore duliv- 
 cri'il liy tlio iv.Hiioinli'iit oliji.'utiiiL; to (jiiitain vo- 
 tiir.-i, :\H (1) aliuns; ('J) minors; (U) not owiiors, 
 ti'ii ints or oiMMiii.iiits of llm propurty amijMsuil to 
 tliL'iii ; anil (I) farm irs' Hoii.i not rusiiliiiLf with 
 tlwir fatlioi'.s Mjioii till! farm, as roiiuirol liy law. 
 On a motion to Htriko out mijli p irticiilir.-i ; — 
 If il. that nil lur tlio " V'otori' I/ists li'iiiilitv 
 A 't," l\\ Vict. c. I'l, H. 'A), tho l(),'ality of tin 
 v.it 's so (ihjiirttjil til (!oiiM not Im iiiiinirud into, 
 aii'l that till! [wtiitiilaiM slioiiM liu struck out : - 
 |{ '111, fiirtliur, that tlm tilFnot of tlio s liil A';t wan 
 til ivii'lor the viitur.s' lists linil aii'l coiichuivi! of 
 tlm riu'lit of all persons nami.'il tlmrnin to voto, 
 
 tiun. .Si'iniilii, pur 
 
 only inoilu of voiinu' in liy liallot, if it liuoaint! 
 iicfosHiry to ili'riil(. tl.o cliv'tioii liy il'lnrininin^ 
 till) ritjht to ailil tin so votes, it sli'mld Im ilotcr- 
 nii'uiil in that manner most consistiiit with thu 
 (ilil l,i'.' Mill which wmilil liav.i hivcmI tlm tlJH- 
 fnuichis'i n lit of olcctors, and tlm mn'iMsity of a 
 lii'W ulccti 'II. If tlm riiilit of votiii'^'can oiily lie 
 pnisurviil liy diviilLiiiiL,' from mccHsity for wlioni 
 thu I'lectur illtuildud to vote, thi) ni.'crs ity jiisti- 
 '' tliu duclaratioii (In; olci.'tor is forced to iiicko. 
 ... there is imtliii';,' in the Act which prcventH 
 tlm clout, r froip siyiiii,' for whom Im intends to 
 voto. y ', 'I Vh-iui-hi KUi'>ii>n[-l]{Hnm.] -(^nm- 
 ffni V. .}f,irl,i)ii'iii, 1 H. E. C. 071 ; 11 (J. L. J. 
 I(i:t; n: Q. ]',. '2H\. 
 
 Till) rc,»j«iiiidciit was oh.'ctcd liy four votes. At 
 thi) cluctiiin the n mi i"" "f I'J iDrsnns who wcro 
 oiitcrod on the .mcssmijiit roll m.s " i'rco!i'ildcr.s," 
 app' arijilon the voters' lists, owiiij,' t i a |iiiiitor's 
 mistikc, as " f.iriii irs' sons." Their vot;.s weru 
 ch illeii^ji'd at thu poll, and tin y w.)rc ri)i|iiirod 
 liy til) p ;titi'iii M-'s scriitineers to tiki t!i : f.viii- 
 ers' Hulls' o itli, which timy refused. Siilis 'iiuoiit- 
 ly they olFerod a.i;iin to voto ;ind to t.iko thu 
 owii'.'s' oath, .and the deputy returning,' iiliiccr, 
 who was also clerk of the nmiiicip ility, kiiiiwin;; 
 
 except where timrt) had lieeii a siilisciiimnt cli ln^ro them, (,'avo timiii liillot p.ip irs an 1 allowed tlmui 
 of position or status, liy thu voter llavill^' iiarU.'d : to vote ; -I [eld, (I) tli.it liiviii,' lieeii ri'^'litly en- 
 with the. interest which he had (or liy the assess- ' terod on tlm asscssm mt roll, thu niist.i'ki) as to 
 
 their ipialilleation on tlm voters' list did not dis- 
 franchise them. (•_') That their refu.sa.l to t.aku 
 tlm farmers' sons' oitli wis not .a refiisil to tike 
 the oath ropiireil hy law. A refusal to swoar i.s 
 where .a Voter rcfiitjs to tikj the o itli .appmiiri- 
 
 iiiciit roll appe.ircd to Iriv.i) in the [imp ;rty, and 
 lieeoinili,' also a non-resident of thu elect ir.al di- 
 vision. Soii/li \V ui'iu irtk hjli'i'iioii (Ont.) — Olin- 
 st''itl ri a'. V. Carit'ii'ii; 1 H. E. U. o'.il. 
 
 The assessment roll is 'oiiclusive a=i to tlm 
 ainoimt of the assessment ; hut the mere fact of 
 the naniu of a pursoii h ein,,' on tlm roll is not c in- 
 clusive as to his ri^ht ti vote. The retiiriiiiii,' 
 otBeer is liiiiiint to rceor I the vot.i if the p irs m 
 tak'M the oath, liut tint is not ooiiclusive. Nm-tli. 
 
 Vh-i'ir'i'i h'/r.-iioiiil) iiH.) —0'iiii"r(iii v. Mach-mfui, 
 
 1 II. K. C. TiSt; 10 (!. L. J. '217. 
 
 .Miitakjs in coiiyiiig the v. iters' lists should 
 nut deprive le^ illy (ju ilili )d voters of tlmir votes I 
 aiij' more thin the names of umplalilied voters: 
 lieini,'oii the list would;,dve tlioiii a ri^'ht 1 1 vote. | 
 lint tlm mere fact th it tlm liats weru not corruet > 
 al|ih ilietic il lists, or hid not the corruet iiumlicr 
 of tlm lot, or weru not |iroperly certiliu I, or tlm 
 omittin^' to do .some act as to which the statutu ' 
 is directory, is no j,'roiind for auttiiiL; aside an ' 
 ulection, unless some iujiisticc resulted fr.iiii the ' 
 oinissiiin, or niiloss the rusvilt of thu eloction w.is 
 alTectud by thu niistaku. Ih. | 
 
 Tlm court will not j^o liehiii'l the voters' list to 
 imjuiru wlmtliur a votur's name was unturol uiiou 
 thu assussnieiit roll in a formil mannur or not. 
 North Simcoi' Eli'ct'vm (l)oii>.)~-Edv-ri.U v. Cuok. 
 1 II. E. C. fJI7; IOC. L. J. 2:J2. 
 
 The names of cort.iin persons who wore quali- 
 fied to voto ,at the oloction appeared on the last 
 revised asscssinoiit roll of the mnnicipality, hut 
 wore omitted from the voters' list furnished to 
 the deputy returning ofliccr, .and used at the elec- 
 tion. They tendered their votes at the poll, but 
 
 .ate to his proiier dcscriiition. (W) Tli.it h ivii'i,' a 
 ri,'lit to vot), althoui,'li tlmy vote I in a wroie^ 
 iMincity, tli"ir vitjs o mid not In struck olF. 
 .S enlile. That the pnivisions of thu law as to how 
 voters are to he eiit 're I on tlio voters' list in 
 
 ' rcspict to tliiiir iifopcrty, and as to the niiiiiier 
 ill which tliev .are to vot i, atv: ilir,.'ctory. /^v.•^- 
 
 ' ra'l El.'Hion (/hm.) -/Li/nr v. /.'e'(///Vr, 1 H. E. 
 ('. 7S0. 
 
 Held, that the notice reriuirod by R..S.O. c. 9, 
 I a. I), of a complaint of any error or omission in 
 , the voters' list must bo si:,'iiod by the voter giv- 
 ing the sain J or his agent. Tim nun! in the 
 li:ginning is not a siillicient signature, /n re 
 I Siiiiixoii (III'/. th<;(J)iintij Jut/c of /jiwir/;, 9 I'.R. 
 1 3.-,S.— Oslur. 
 
 .Sein'ilo, That tin r|uestion of the validity of 
 the notiuu oin lie raised lioforu the judgu hearing 
 thca|ipeal, after it liasheeii received and unteruil 
 ill tlm list of aiipe.als, thuclurk whorucuives and 
 onturs it having no jndioial duty to purforin. lb. 
 
 'J'liu ass(!ssmeiit roll of a municiipality was 
 tinally revised and corructcd by the Court of re- 
 vision on thu.'Ust .May, ISS'i. 'Thu clerk of tho 
 niuniciiiility prepared the voters' list therefrom, 
 and on tho 7tli Seiitumhur, 1S.S2, p istod a copy 
 thereof in his office as required by II. S. O. c. 9, 
 s. 3. Ho tr.ansiuittud copies of the list to some, 
 but not to all the persons entitled to ruoeive them 
 under sees. 3 and 4, and no complaints Laving 
 
il'J 
 
 PAPvLIAlMEN'rA IIY 1:LECT10XS. 
 
 rr20 
 
 r 
 
 r: 
 
 
 lic-i 11 ic I ivL'il l>y liiiii u]i til tl"' .'illlli ()< till )(■]•, liu 
 (111 that ilay .--i{.iu'il tiiu I'oi ilieatc iiml i'c[i(iit 
 iiuiitidiuil ill Mc. I I (il tlic Act, .■iii'l (ilitaiiie'il 
 till- cuitiliciitf (il the iluputy jiid^u (it tliu t'duuty 
 ('iiiirt (111 tliix'(.' cnjiics (il tilt- list as luiii;,' the ru- 
 vii^ed lijit II! V('tir:( fur llu; liiuiiiri^ialily. 'I'lic: 
 jmlgL' (if till-' Cdiiiity ( 'iiiirt fdiiml tlia* thu cicik's 
 ci.ililii;atu was falsu, ami iiiailu with intent to 
 ili^ccivc till.' il('|iiity juilyc', iinil tliatthf cltrk had 
 dt^i^lR'dly willilield tliu list.s ; and he thuluioi-u 
 set aaiilu ihc ulci Us ci;rtiliLati; ;.nd thu curtilicato 
 ol thu (kimiy judgu : — Hold, that as soon as the 
 list is iiiistiil iiji in tlju cl(jik's otiicu thu tiinu tor 
 ir.ikiny (.:iiiii]ih;iiit..s in ivs[.uut iit it ln;,'i)i.> tii run; 
 liiat siie'li tiiiK; luiiig liy suu. !) (.xjirus.sly limitid 
 t(i oO days Iriini tin.' imsting uji ni tliu list, and 
 no coiiiiilaint having; iiucii iiiadu uithin it, i;lu: 
 deputy jiidgt: v,as hound to ueitit'y ; lluit tliu 
 oiuitsioii to transinit tin.; cojiius, u ln;thur iiugli- 
 gunt or wilful, m.t IkIiij; u.^.-untial to thu lugal 
 ruvisioii or auihfiiliuatioii ol thu list, uould not 
 aiitlinri/u an extension oi thu tiini-, and that thu 
 duimiy jud^u's uurLih(.ati^ was liiial. and uould 
 not liu sut asiiii--. Jn rf Tli- ^(/0/.^ J.i,tL oj tin 
 V'ltloiji I'/' Ij'Dii'jiiiiI, Jul' llv jinii' 16^..'. In re 
 Jvlui'-Hih, 1) 1'. J;.'4:;j.--t)slur. ' 
 
 (1.) ]'(,/iiii/ mill Miiiiiii'j J'aUot.i. 
 
 OiiulJ., a \(iUv \\h(iu(juldnuitlK'r ruadnorwrito 
 uaniu into a jiolling liooih, ami in thu [irusunuu ol 
 thu duiiuty rulnininj, oliiuura.'-Uud for onu C wiio 
 vas not Jill sunt to jui.u him iiiotiuutinns how to 
 niaih his lialloL. 'I hu liupiity rutiiniiii^- oiUuur 
 •^avu thu votur a hallot Jiapur, who then stated 
 liu wished to Vote lor thu iuB[iondunt, Unu W ., 
 an ai^i.'iit (if thu rusiuinilent, in thu iiolliny buoth, 
 took the peiieil and niarlvud thu liallot t'.a the 
 voter wisliud. and tlio voter tlieii ha-iuiud it to 
 thu (ii|iuty reiuriiiii- oliner. 2<(i duelara.tiou ol 
 inaliility lo ruad or write was niado hy the vo- 
 tur : — llelii, that no onu lint thu deputy return- 
 ing olilcur was authnri/.ud to mark a votui's hal- 
 lot, or to inturfuru with or (juustion a votur as to 
 his viitu; and thu deputy retiuning oilieer per- 
 niitling the agent of a uaiididutu to lieuoniu au- 
 iiuainled \\ilh tliu iianio of thu candidate lor 
 whom thu votur desired to votu, violateil thu duty 
 iiupusud on him to eoiiuual from ail persons thu 
 niodu of Voting, and to maintain the seereoy of 
 the prouucdings. llnHuii KUi-trm (Oiii.) — lUi-i-^i II 
 
 <t Ol. V. /;«/■/-./•, 1 II. i:. V. •if.x 
 
 \Miure a \-otur oh'ered to vote at a pull, lint 
 did not asli tor or ]iut in a tendered lialiot ]ia- 
 pur :— Held, that the liallot Aut n.'(|uired thu 
 votu to lie given seeretly, and that the ]iarol du- 
 elaration ol the voter as to his vtu eould not lie 
 recuivud in order to athl it to the [loll.— .Vcvi/v/ n 
 rote. Linrdi/i Kluiiun ('!) (Vnt.) — i'dirliiii/ v. 
 /,•///.(, 7, 1 J I. \>:. ('. ."lUO. 
 
 A voter v ho had inadvertently torn his hallot, 
 i\nd whose halliit was rejuuted on tlie eounting of 
 votes, vas allowid his vote, tlie uvideiae piuv- 
 ing tint no iriek was iniem^led for thu purj.o.-e of 
 t^huMing how hu ii.teiidud to vote. .Vo((//i ll'iiil- 
 ■irurlli tUvliiiu (Out.) — Ulmnl'i'il v. VarpiiUer, 1 
 H. E. C. o;tl. 
 
 Freeholders who appeared on thu voters'lists, 
 owing to a printer's mistake, as farmers' sons, 1 
 lieiiig ehalleiigud at the ]ioll ri fus(>d to take the ' 
 iarmurs' sons' oath : Held, that tliuir rul'usal to \ 
 
 take such oath was not a refusal to take the oath 
 reipurud liy law. A rufusal to swear is win. re a 
 voter refuses to take thu oath ajipropriatu tn his, 
 [iropur description. I're.-'i'dlt Kid-liun {Do.u.)- — 
 Iliiijiify. Itoallik'r, 1 11. K. C. T^SO. 
 
 An eUelordnly (pialilied, who had lieen re.r.sed 
 a halloc paper !iy thu deputy returning otiieer, 
 caiiu( t lie deprivtd of his vote ; otherwise it 
 Would follow that liecaitse thu duplity I'utuiniiig 
 otllcur had wrongiiiUy reiused to give sueli ileu- 
 tnr a lialliit ii.iiiei', lus votu would not lie '^11011 
 ill fact or in law. Surlli \'irliirii( Eliclinii ("J) 
 (J)iiiii.) — ddiiiirijii V. Macli iiiKiii, 1 H.E.(J. (i71 ; 
 
 11 (;. E. ,1. k;.'}. 
 
 Thu fulldwingb.dlots wuri'hrld valid: (1) Bal- 
 lots with a ero.-B to the right just after the eau- 
 (lidatu'.s luuiio, hut in thu same eolunni, and not 
 in the eoliiiiiu on thu ri:dit hand sidu of the name. 
 ("2) iJaUota with an ill-formed eruss, or with fcinall 
 lines at t,he und,-i of the uross, or witli a line 
 aenihS the uenfre or onu of the limlis of the ero.-.-i.or 
 withaeur\eil line like thu blades of ananuhor. Jh. 
 
 The follow ing iiregularitiLs held not tolie fatal: 
 (1) An irregular mariv in the figure of a uross, so 
 long as it cUies not losu thu form of a cross. ('2) 
 A cross not in thu proper eoiuj urtniLiit of ti:e hal- 
 lot jiaper, but still to tliu rignt of the uaudidatu's 
 u.imu. (;>) A cross wicli a liiiu liuforu it. (I) A 
 cross riglitly iilauud, with two additional ero-^ses, 
 one across the other uaudidatu's name, anil thu 
 other to thu luft. (5) A cross in the riglit ]ii lee 
 on thu back of the ballot paper. ((1) A ihadile 
 croj,s or two crosr.es. (7) b.illot paper in;aii-i:r- 
 tently torn. (S) liKi.lvertent marks in aililitinn 
 to the eniss. ('.)) tJro.ss made w ith pen and ink 
 instead of a pencil. Muink Lhniuu (JJvhi.) — 
 <h;iiil it III. v. JlcCiiliiui, 1 li. K. G. T-'i) ; 12 
 C. L. .1. 11;,. 
 
 In b;illdt jiaper? eontaiiiir.g the names of f mil- 
 candidates tlie following ballots were held v.ilid: 
 (I) llallots containing two eroases, one on the 
 line al)vi\ u the lirfst name, and one on thu line 
 above the second name valid for the tw n lirst 
 named uandidatus. ('2) llallots contiiining two 
 crosses, one (jn tlio !iiie;ilio\e the tiist name, and 
 onu on the lino dividing thu sucoiid and third 
 compartniLiits valid for the lir'st named candi- 
 iiatu. (I!) Halldts eontaining properly made uro. .-^es 
 in two of the eoinp.aitments of thu ballot p.iper 
 with a slight lead p* ucil ntroke in another euai- 
 liartnient. (4) liuilots mr.rked in tin; proiiercmn- 
 p,.rtments thus y . (J//ci;/',s Cuiniti/ ElirliuU 
 {/Join.] — Jiiikiu-'i V. Brccicii, 7 i'^. C. it. "247. 
 
 The Election Act in its enacting part reiiuires 
 ballot.-j to be marked with a cross ou any place 
 within tlii^ division wliieli contains the name of 
 the candidate. Hailots marked with a stra.ight 
 line \\ithin the division, or with a cross on the 
 back. Were rejected. Observations ou the diller- 
 eiieu betwuuii the Enyli.-h and Ontario stauites 
 in this rusiieut, S'HiHi Wiiitworlh Hlrvtimi [Out.) 
 
 — Ollll.-l.nil il III. V. Clirjirlifrr, 1 II. E. ('. ."lol. 
 
 The bjllowiiig b.illots were held inv.aliii : (1) 
 lialldts with a single stroke. (2) liallots with 
 the candidate's name written thereon in addition 
 to the crosa. (It) Jiallols with inark,>( in addition 
 to till! eriiSM, by which the voter might be iden- 
 titiuil, although not put tliuru by the voter in 
 order that ho might hu identified. (4) llallots 
 marked with a number of lines. (5) Ballots with 
 
520 
 
 till- (lath 
 win vu a 
 (! til hia. 
 
 521 
 
 PArtLIAMEXTAIlY I'LKCTIOXS. 
 
 522 
 
 (ill ; 
 
 111. 
 
 a cr(i:^s for oac1ic;:uiiliil,ito. Xnrtli ]"i('!firi'i El> r. 
 thin (0) (Ddiii.) -Cii iiirriiii v. Miu-Uimdii, 1 1], K. 
 C. (ill ; Jl C. L. J. Kl.'i. 
 
 Qna'i'c, Miu'tluT lialliits with a lto.ss to t.'io 
 left of tlie caiifliilatcV umw:. .slioulil Iio rajt'ctcil, 
 as tl'.e deputy rotnriiiiiy ollicor is not lnuiiiil to 
 rt'ji'ct siu^ii liallots iniiliT s(m.\ 5") of tli'j I.)oiiiiiijou 
 Elections Act, 1874. Ih. 
 
 Till! following irrognliiritios in tlio nioilo of 
 nrivking liallut in]ic'i's, hcM to lie fatal: (!) niak- 
 iiig a siiiL;k; istrokc instead of a orost!. (•!) Any 
 niaik wliioh contains in it-'elf a means of iik-nti- 
 fyiriy tliu voter, sucli as liis initials or some mark 
 known as l>eing one used ))y him. (;{) Crnssrs 
 made at left of name, or not to tho riglit of 
 the name. (4) 'V\\t> single .strokes not cr. is-;ii!g. 
 Mniirk Ei-rthm (/)niii.)^(-! ninl I'l I'l. V. MiCidluiii, 
 1 11. E. C. T-'.j; 12 C. L. J. 11:J. 
 
 'rh<' follovving hallots were luhl invalid. : (1) 
 r>a!lots with a erosa in the riglit ]iliu'c on the 
 haek of thel.'ali'it paper instead of on tlie ])rinted 
 side. (-) Ballots marked witii an ./■ instead of a 
 cross. ()ii:vn'!< Ciiiiiitii Ehi'lhjn (l)oni.) — Jiii/,irs 
 V. Hi-i-cbii, 7 .S. (". i;'. 247. 
 
 ."^eo also /]rifliin-l/ /■'/(■clidti (Doiii.) — Ihnrl.lns V. 
 Siii.'Ui (I III., H S. C. \i. ()7ti. 
 
 (i') \(i/i!nilr,iil .S/il,jic/.i and Alini.i. 
 
 \^'llere the voter was born in thel'nitedSt;tes, 
 his parents lieing Britishdiorn sulijcrts, his father 
 and grandfather l)eing U. K. Loyalists, and the 
 voter residing nearly all liis life in Canada: — 
 Held, entitled to vote. — I'lurc'-t rrifi>, Sfnniinii/ 
 Eh-rthiii (()iir.)-/MI,'iiii'.\. Col'/nh-iiin, 1 il.ivC. 
 21; 7 C. L..I. 213. 
 
 An alien who eame to C'auaila in lS50,and li id 
 taken tlie oatii of allegiance in ISO!, Imt had 
 taken no ])rneeeilings to ohtain a eertilieate of 
 naturalization from tho Court of (^liiarter Ses- 
 sions, was held not ipialilied to vote. — linrnii'^ 
 vii/r. Ih-iii'knilr Ehrtiim (Ont.)~Eliiit v. Fil:.slm- 
 ,ii'.,ii<, 1 II. i:. C. 12!) 
 
 An alien, whose fa'Jier had taken tlie oath of 
 allc -iance on olitaining the jiatt'iit for his land 
 under (ieo. 1\'., c. 2l,--lleld not iiualiiied to 
 vote. Jlnilci/'-i n/tr Ih. 
 
 'I'he evidence that the ]iareiits of a voter had 
 stated to iiueh voter that he was horn in the 
 Uu'-ed States, hut that his father was horn in 
 Canada, roeeived, and tho vote held good.— 
 Wri;ilit'.-< mil'. Ih. 
 
 \\'here evidence was given of jiand admissions 
 made liy (vjrtain voters, some yetirs before the 
 election, that they had been born in a foreign 
 country, and also evidence *''iat since the ]iarol 
 adnnssiiin the \'oters had voi.alat parliamentary 
 elections, and had taken the voter's oath as to 
 l>cing Uritish subjects by birth i>v nattirali/.a- 
 tion ; —Held, (1) Tliat the oath ,at the polls could 
 not be treated as testimony, not having boon 
 given in any judicial proceeiling. (2) That by 
 swearing at the polls he was a Hritifih subject by 
 birth or naturalization, the voter .;nly stated tlie 
 h^gal result of certain facts. (3) 'I'h.at there was 
 therefore no [ircsumi)tion of natiirali/.ition sulli- 
 ciently strong to rebut tho presuniption of the 
 continuance of the original status of alienage. - 
 Slfurlc'.t mt,.. /Aiirolu El^'cthm (2) (()iif.)-'l'nn-- 
 ling V. lijjktrt, 1 11. !•:. C. 5U0. 
 
 Where ;i votia'. in support of Ins own vote, 
 swon; that ho was born in the L'nitcd States but 
 that his parents wre Ihitisli subjects : —Held, 
 that the w hol(! stit<.Mnent of the voter nnist be 
 taken, an<l that it amounted to this : " I was 
 bfirn in the United States of Uritish [larents." — 
 Miilri-iiii'tn't mil'.. III. 
 
 Cert'iiu aliens had t\k(jn thi; oaths of .illegi- 
 
 ;ince, itc, before a justice of the lavici; of a town, 
 
 ' which oaths were administered to tlieia in a 
 
 ' towjisliip, but within the same eonntv :- -Held, 
 
 I that under the .Alien Aet. 34 \'ict.. c. 22, s. 2, 
 
 ' ( |)oin.) the jnstii. f the Peace, in administering 
 
 ' the oaths, was acting ininistei'ially .and not jud.i- 
 ei ally ; and that the o:iths were jiroperly admin- 
 istered. .Jvliiiton^'f I'liti'. Ih. 
 
 (d) Pi-iiji. liij (hialijirallun. 
 
 ITiiiihaniJ mill 117/' .]--\Vhero the owner died 
 intestate, and the husband of one of his ilangh- 
 ttu's leased the pr ip'irty and received the rents, 
 such Jiu.sbaud was held not entitled to vote. — 
 /,cm'/V.s' roll-. Jlriic/.-rillr Elrr/'ion {(Jiit.j—Fliitl v. 
 Fll:.simm,jii.-<, 1 11. K. C. 12!». 
 
 Where a husband liad posses^inn of a lot for 
 
 wideh he was assi'ssfal as occujiant and his wife 
 
 as owner, but which belonged to the wife's dangli- 
 
 ' ters l)y a former husband his vote w.is held good. 
 
 — \y/iii/i i/'s raff. Ih. 
 
 I'ti-i'i,! iinil >'o;(.] —Where i fathi'r \\-as by a 
 ! vei'lial .agreement "to h.ave his living oil' the 
 '])laee, " the .son being owner .and in occupation 
 ' with the father, th.o father was ludd. not entitled 
 
 I to vote.— ir;//.<(-V' mfi; Ih. 
 I 
 
 Where it was [n'ovoil that an agreement existed 
 
 (Verbal or otlierwise) that liie son shouM have a 
 , share in the crops as Ins own, and such agree- 
 : ment was bona tide acted on, the son being duly 
 
 .•'^scssed, his vote was held good ; the onlinary 
 ' test being : had the voter an actual existing in- 
 ■ torcst in the crops growing and grown ? Ih. 
 
 iiut whore such crops could not bi> seized for 
 the son'.s debt, the son was held not entitled to 
 I vote. — Fv'inci-i' rule. Ih. 
 
 j AVhere the ■agreement did not shew Mdiat share 
 in the crops the son was to have with his father, 
 and it appeared to be in the father's discretion 
 to determine tho share, such .'^on was hehl not en- 
 titled to vote. — Jolui.-ioii's cote. III. 
 
 Where it was ]iro\'ed that bn- some time past 
 tlic owner had given up tho whoh^ in.an igemenfc 
 of the farm to his son, retaining his riglit to bo 
 sup|iorted from the [imduetof the place, the son 
 dealing with the croiis as his own, and disposing 
 of them to liis own use, the son's vote was hehl 
 good.— Ciili/i''-ll, }[iiOri: lUldSiilltlC't Culri. Ih. 
 
 The willow of an intestate owner continuing 
 to live on the property with her children, who 
 own the estate and work and manage it, sliould 
 not. til' her dower is assigned, be assessed jointly 
 with the joint tenants, nor should any interest 
 of hers be deducted from the whole assessed 
 vahie. Where, tlii'refon", four joint tcmants and 
 such dowress occupied property assessed for 
 8;)0(». the joint tenants were held entitled to the 
 (jualilication of voters. — (/('//•o//'.-) rote. Ih. 
 
523 
 
 paeliajmextaky elections. 
 
 524 
 
 ■..« 
 
 r 
 
 c. 
 
 r.:.i 
 
 «"■; 
 
 Where tlie father had mado a will in his son's i 
 favour, anil tnM tliu aim if hu vduhl wink tlio 
 place and Hujijidrt the f.uiiily lie ^Miuld j;ivu it to 
 him, an<l tliu lutir-j ni;inaj;iniiiit r( niiiint-d in tho 
 son's hands from that tinif, tin; lirojicity licin^' 
 uBst'sscd in hoth nanus, tliu pml'tsto ln^ aiiplifd 
 to jiay the dilit (hiu on thu place:- lltld, that 
 as the understandini,' w^is that the son woikud 
 the place for the suiiport of the family, and he- 
 yond that for the hem tit of the estate, which he 
 expecteil *o possess under his fallier's will that 
 he did not hold ininiediately to his own use aiul 
 Leuetit, and was not entitled to vote. — Wioif's 
 note. tSluiiiioiit EliilUm (Oiil.)- llitliiiun \. Cvl- 
 nuhouu, 1 11. E. f. i!l ; 7 C. L. J. l-'l.'i. 
 
 Where the ohjection taken was, that the voter 
 was not at the time of the linal revision of the 
 assessment r<ill the hona tide ov, ner, oceu]iant. 
 
 Wlieie the voter was the eijuitahle owner, the 
 deed lieing taken in the father's name, but the 
 son furnishing the money, the father in occupa- 
 tion with the assent of his son, and the proceeds 
 not divided :-lIeld, that liuing the ccjuitalile 
 (jwner, notw ithstandini; the deed to the father, 
 he had the right to vote. — 7j'/i((/''a' cul<\ Ih. 
 
 AVhere the voter had been originally, hcfore 
 18(1;") or Ib(li), put upon the assessment roll merely 
 to give him a vote, hut liy a sulise(|ueiit ai'r.mge- 
 mcnt with his t'al'' r, ma<le in 18(15 (jr lS(i(i, lie 
 was to sujijiort thi! fatlici', an<l apply the rest of 
 the pi'ocecds to his own snp]i(prt :- Held, that 
 if he had heen jjut on oiigin.illy nierely foi' the 
 purpose of giving a vote, and that was the vote 
 (juestioncd, it would have heen had ; hut heiug 
 continued several years after he really hecame 
 tl:o occupant for his own hcnelit, he \\as entitled 
 
 or tenant of the projierty in respect of which he to vote, tiiough oi'iginally tlu' a^sesfuient hegau 
 voted ; and the evidence shewed a joint oecu- ' in his name merely to nualiiy him. — (I'urc'f culi'. 
 paney on tlie ]iart of the voter and his father on i Jh. 
 land rated at !r"240 :- Jlcld, that the notice given 
 
 Wliere a verbal agreement was made bctu ecu 
 the voter and his father in .lanuary, 1 870, and 
 on this agreement the voter Ircjm that time had 
 exercised control, and took the proceeds to his 
 own use, although the deed was not executed 
 until Scptcndier I'ollowiny ; — Held, entitled to 
 
 did init jioint t<i the objection that if the parties ' 
 
 were joint occupants they were insutllciently 
 
 rated, and as the olijectiou to tiie vote was not 
 
 liroperly taken, the vote was held good. 'I'he 
 
 learned Chief Justici' intimated th.atit the objec- ' 
 
 tion had been properly taken, or if the counsel , 'Zu^.^iy^ii^^i^z/i-^i^^'/t 
 
 lor petitioner (whcjse interest it was to sustain; 
 
 the vote) had stated that he was not prejudiced i Where ii father had made a will of a lot to his 
 
 by the form of the objection, he wouhl have held son who was assessed f(U' it, and the son took tlie 
 
 the vote bad. — Bab rf nli'. Ih. ; crops excejit wiiat was used by the father, who 
 
 -,,, ^ . , , resided on the lot with his wife, the son residiiii' 
 
 Where a certain occupancy was proved on the ,„„i .....rking on another farm : -Held, that the 
 part of the son distinct Ironi that ot the lather g„„ ],,„i „„t ,„^.|j ^ l„,,„,ii,.ial interest in the lot 
 but no agrecn.ent to entitle the s,.nt<.u share of ; ,,y ,v.,uid entitle him to vote.- .!/««;»'.. ruW. 
 theprohts, and the son nierely worked with the!, ^;,„,/, (,:n',.vUk El.xlwi, [Oiil.)-^-ElU^ v. Fra-^r, 
 rest ot till! family tor their coninujii benetit : — { \{ )■; (^', l(;;j 
 Held, that although the son was not nierely as- i 
 
 sessed for the real but the personal property on Where a father, the owner of a lot, told his 
 the pkce, (his title to the latter being on the son that he might have the lot, and advised him 
 same footing as the former), he was not entitled i to get a deed (irawn, and the lot had been as- 
 to vote. — Ji'((iiti/\i LXik. JO. i sessed to the son for three or four years, and was 
 
 -,,,, ,, , ,. , , . rented to a tenant by the father with the asu lit of 
 
 Where the voter and his son leased certain th^ son, who paid to the father his wages but the 
 property, ai.d the lease was drawn in the sons father collected the rent :-Hehl, that as there 
 name ahine and w hen the crops were reaped the .^ns nothing but a voluntary gift innn the father 
 8011 claimed they belonged to him solely, the to the son, without possession, the son's vote 
 voter owning other property, but being assessed ^^.^^ hud.— Lumlj.^ voir.. Ih. 
 tor tins only and voting on it:-lleld, that al- ' 
 
 though he was on the roll and had the necessary ' 
 qualitication, but was not assessed for it, he was 
 not entitled to xotn.-JJil/'n i-ok\ Ih. 
 
 W^here father and son live together on the 
 
 Where the owner of mortgaged piojierty died 
 intestate, leaving a widow ami sons and daugh- 
 ters, and the property was sold under the mort- 
 gage, and the deed inatie to tlie widow, but three 
 , , , 1 1 ■ 1 • • '-' , of the sons furnished some of the purchase money 
 
 father 8 tarm, and the lather is in lact the priii- ' .i^j „)i ,vniaii.ed in possession, and the eldest 
 cipal to whom money IS paid, and who .hstnbutcsg,,,! ^^^s assessed as ocnipant :— Hcl.l, that as 
 It as ho tlnnks proper, and the s(.n has no agree- ; ti,^ eldest son did not shew that the property 
 nient binding on the father to compel him to ' .jvas purchased for him, and the presumi.tion 
 give the son a snare ot the ijroceeds ot the farm, , f,.^,„i tl^, ovidcnce being that it was bought for 
 or to cultivate a share ot the land, but merely tjie mother, such eldest son had no right to vote. 
 
 receives what the father s sense ol justice die- I JJorrow's vote. Ih. 
 
 tates :- Held, the son has no vote. — Eumuu'n 
 
 vote. lb. ParliiirH and Jaint Ocv/ccs.]— Where a .son 
 
 In a milling business where the agreement was assessed at 8700 for a farm in which Im and 
 
 between the lather and son was, that it the son i''' f^V""".'!''^''''- If''^"^'';!!' !" ,V'^ l'!"!'"'";'" "^ 
 would take charge of thn mill, and manage the . tl'>-^^^-f';urtl'S ot the prolits to the father and one- 
 business, he should have a share <,f the Kotits, i f""''*'' '" *''" ^"'V'. "'"' ,* "i V'^r*'!'," '" *':^ '",'"" 
 and the son, in fact, solely managed the business, | ^^'''^ n.m-ownerslnp ^-Held, that the partnership 
 keeping possessi.,n of the mill, and applying a por- "'^'^ estal, .shed by the evidence, ami in view of 
 tion of the proceeds to his own use --Held, that I t'"' ol'Jfction taken, the vote was sustained.- 
 
 the son hatl such an interest in the business, and 
 ■while the business lasted, such an interest in the 
 laud, as entitled him to vote. — Bullock's vote, lb. 
 
 Smalm' vole. Ih. 
 
 Where two partners in business occupied jire- 
 mises, the freehold of which was vested in one 
 
524 
 
 525 
 
 PARLIAMENTAii Y ELKCTIONS. 
 
 520 
 
 ly, lidorc 
 
 (jII lllLTl'lj' 
 
 t jinaiiuc'- 
 !■ KSCd, he 
 tin- rest of 
 Ilvlil, tli:it 
 lIv lor tlie 
 till' votu 
 
 lilt liiiiig 
 y ln'taiiu; 
 IS t'iititk'(l 
 
 lit liL-;m 
 
 i/v 'n rod.', 
 
 L! butU Ll'll 
 
 Ib7(l, :ui(l 
 . time hail 
 uils to his 
 
 i CXCOUtl-tl 
 
 ;iititleil to 
 
 .t:, told liis 
 Ivisi.d him 
 I ht'C'ii iis- 
 
 s, a IK I was 
 10 a.sM lit of 
 ;l's iiut the 
 t as theie 
 
 tile latlier 
 sun's vote 
 
 of thiiii, anil tlie assessment of the premises was 
 guttieient to give a (jiialiiieatiou to eauli, both 
 liartneis were held qualilied to vote. — Fitziji r- 
 aid's role. lb. 
 
 ^Vllere one of two joint owners was assesseil for 
 property at s^OO: — Hel(l,tliatneither of such joint 
 owners was entitled to vote. Uteirart's rote. lb. 
 
 Triii>/ri.s.] — A trustee under a will having no 
 present henetieial interest in the real pniperty 
 assessed to him, was held not entitled to vote. — 
 JoiKt' Idle. Sdidli (huurillc Ehct'wn (Vitt ) — 
 i://;,s V. Fniscr, 1 H. K. C. 1G3. 
 
 Where A., who resided out of the riding, had 
 made a eonti-aet in writing to sell to J>. the pro- 
 perty assessed to him as owner, but had not at 
 the time of the eleetion exeeuted the (bed, l'>. 
 having been in possession of the property for 
 several jeara under agreements with A.: — Held, 
 that A., was a mere tiiistee for the purchasi'i', 
 and had therefore no right to \utti.—Jlol<kii's 
 vote. lb. 
 
 Tenanln. — Where the voter was the tenant of 
 certain property lielonging to his father-in law, 
 and betdie the expiration of his tenaney the 
 father-ill-law, with the eonsont of the voter (the 
 latter iieing a witness to the lease), leased the 
 property to another, the voter's lease not expir- 
 ing until November, and the new lease being 
 made on the 'JHth Mareh, 1870 : — i'.ld, that 
 after the surrender by the lease, to wliieh in' was 
 asubseribing witness, he eeased to b'j a tenant 
 on the liSth of Mareh, 1870, and that to entitle 
 him to Vote he must have the ((ualilleation at the 
 time of the tinal revision of the assessment rcdl, 
 though not neeessarily at the time he voted, so 
 long as he was still a re ident of the eleetoral divi- 
 sion. — Ititjii rt'.s role. >:,^.ininiiil Ehet'wii (Out.) — 
 Bethuue v. Colquhoiiii, 1 H.E.O. 21 ; 7 C.L.J. 'J13. 
 
 A tenant fioin year to year eannot ereato a 
 snb-tenauey nor eriate a right to vote by giving 
 another a share in tlie erops raised on the leased 
 projierty. — Dini/idiii's vole. Uroekrilh' Ebdion, 
 (Out. )-' Flint V. FilzgimiiiotiK, 1 H. E. C. 1'2{), 
 
 Where a man oeeupied a house as toll eolleet(U', 
 and not in any other right, he was not 'pialilied 
 to vote. — Mr..lrl/iiir't! rule. lb. 
 
 Where a vetulor before the revision of the as- 
 sessment roll had eouveyed and given possession 
 of the proiierty to a piirohaser, and sueh pur- 
 chaser had afterwards given him a lieense to 
 occupy a small portion of the property, sueh 
 vendor was held not entitled to vote. — ynbliii'.s 
 rote. iSoul/i O'rnirille Election (Out.) — Ellis v. 
 Fra.ier, 1 II. E. C. 1G3. 
 
 (o) Income Qualification. 
 
 A voter whose qualitication is successfully at- 
 tacked may shew a right to vote on incoi^ie ; Imt 
 in such ease he must prove that he has complied 
 with all tile re(|uirement8 of the Act which are 
 essential to <pialify him to vote on income. — 
 Cray's rote, Lincoln Election {Unt. ) — I'awlinij v. 
 Kf/kert, 1 II. E. (J. 500. 
 
 ( f ) Disqua lijication. 
 
 The right to vote is not to bo taken away or 
 tho voto forfeited by tho act of tho voter unless 
 
 under a plain and express enactment, for it is a 
 matter in which otiieis besi<les the voter I'.re in- 
 terested, llriickrilli' Flection (Unt.) — 1 lint v. 
 Filzsihimons, 1 11. K. C. 131). 
 
 Held, the fact of persons having been reported 
 by the judge as guilty of corrupt praetitosata 
 former election, had not the etl'eet of dis'pialify- 
 ing them from voting at a second election. 'I'lui 
 rejMirt of the judg«- is not as to them an adjudi- 
 catiiiii, for Voters are not, in a pro[icr judicial 
 sense, parties to the proei'edings at an election 
 trial, t'livinntll Ebclidii (l)oni.) — llen/iit v. Mac- 
 donalil, 1 11. E. C. 047 ; 11 C. L. J. SI. 
 
 5. Jlar/.K on Ballots bi/ De/'iiti/ lit turning/ Ojjicer'^. 
 
 I Tlie petitioner had received a majority of the 
 I ballots east at tho election ; Imt on a I'ccoiint 
 I before the county judge, certain ballots, with 
 I other marks on the back than the 'iiiti.ils of tho 
 de[)uty returning olllcers, were rejected by tho 
 county judL;e, thereby giving a majority to tho 
 resiioiuleiit. Evidence was given on the hearing 
 of the iictiticm that the (k ;iuty returning otlicers 
 had, from a mistaken idea of their duty, jilaeed 
 the nuiiibers of the voters, as marked in the 
 Voters' list, <ui the backs of the ballots :--IIeld, 
 that under 11! N'iet. c. -i, s. IS, tile marks so made 
 did not avoid the ballots, and that such ballots 
 shoulil now lie counted. .Seiiible, that tlu; cniiuty 
 judge, acting iiiiiiisterially on the recount of bal- 
 lots, could not have iuvestigati d by whom ur for 
 what motive such marks li.ul beep •"■ule on tho 
 ballots. A\(.-,w// Fb'ctiini ((>nl.)—lJakery. Mor- 
 gan, I H. !•;. C. .-.I'.i. 
 
 ('ert;iiu dc[iu.'"v returning ollicers, before giv- 
 ing out ballot pa|iers to the votersat the electiull 
 in (piestion, placed nuiulurs on tho ballots cor- 
 responding with the numbers attached to the 
 names of such voters on the voters' lists: — Held, 
 (I) That the de[iuty returning ollicers hail acted 
 Contrary to law in numbering the b.illots, ami 
 that the b.dlots so numliered slumld be rejected 
 as teud'iig to the ideiitilicatimi of the voters. ("J) 
 That such co. duct of tiie de[iiity returning olli- 
 cers having had the ell'ect of ch.ingiiig the result 
 oi the , lection, a new election should lie ordered. 
 Fast llaslimis Flif/imi (l>oiii.) — A ylr.-<icorth v, 
 White, 1 II. E. C. 76-t. 
 
 The neglcet or irregularities of a deputy re- 
 turning ollicer in his duties under the jiominioii 
 Klcctions Act, 1S74, will not invalidate an elec- 
 tion, unless they have aU'eeted the result of the 
 election or caused sonio substantial injustice : — 
 Held, therefore, th.at the neglect of a de[iuty re- 
 turning ollicer to initial the ballot papers, and 
 to provide jieii .and ink instead of a [leucil to mark 
 them, would not avoid the election. .Mnnck 
 Election (l)oni.) — I! rant el al. v. McColliun, I H. 
 E. C.725; 12 f. ).. J. 113. 
 
 On a I'ccount before the County Court Judge, 
 J., tho aiipellant, who had a minority of voti * 
 according to the return of the returning ollicer, 
 was declared elected, all the ballots cast at tlireo 
 polling districts, in which the apiiellaiit had 
 polleil only 131 votes and the respondent, |i., 
 345, having been struck out on tho ground that 
 tho deputy retniuiiig ollicer had iiiglected to 
 place his initials upon the back of the ballot. 
 On appeal to the .Supreme Court of I'. E. Island, 
 it was proved that tho deputy returning officer 
 
rArvLTA:\IENTARY ELECTIONS. 
 
 528 
 
 r 
 
 it: 
 
 
 :4 
 
 liail plnecil liis iiiiti.'il-< on tlio ctitintorfdil hofnre i 
 L'iviiig tliu liiUnt p:HK-r to tin; voter, and nftcr- ! 
 WMi'ils, prcvioiiM to his puttiiiL; tin; l):illot in tlio 
 li.allot l)(ix, liMil (lc't.ulii(l and (lustroyod tliucoun- ' 
 ti-i'foil, iind tli-it the l),il!Mts nsi'd were the same 
 as those he had s^iipijlied to tlie Voters, and Mr. i 
 .Tustiee I'eters held that the hallots of tiio .said 
 three polls on^lit to lie eoiiiited, and did eoiint 
 tlieni. 'I'lierrnpon .1. ap]iealed to the Supreme 
 ('(jurt of Canada. .and it was — Held, atlirminy tlio 
 jud,:_'nuait of Mr. Jilstiee Peters, that in the 
 jiresi'iit ease the depnty retnrninL.' olVieer h avinj; 
 had the means of identifyin'^' tlie liallot jiajiers 
 as hein.i; tlio^e snpplied by him to tlie voters, and ■ 
 the negleet of the di'imty retiiriiii.L( otHeers to : 
 put their initi ds on the haek of tliese hallot ■ 
 jiqiers, not Invinfr afi'eeted the residt of theelee- ' 
 tion. or eansed suliatantial injustiee, did not in- 
 v.didate tiie eleetion. The deei.sion in the .M mek 
 eleetioii ease commented on and a])piovc!d of. 
 V'""' "'•••■ ('ii'iii/;/ Eh'i-thin (I)oiii.) — Jiiihiii.H v. 
 Jinchrii, 7 S. C. l;. '-'-tT. 
 
 See also linlhir'll iCIcri'ion {Didii.)- 
 .<;„i!/i, 8 S. C. K. UTIJ. 
 
 -ILurk'm 
 
 ('). I'rorci ■lliiij'^ to Enfuirc Pi'jiaf/ii-.-i. ^ 
 
 Held, that (,'57 Viot. c. 0, s. UVI) whieh j'ives a 
 eivil remedy liy aetion of deht or information for 
 the reeovery of the penalties imiiosed for the 
 fill'encc of hriliery, &(,'., eommitted in contraven- 
 tion of see. '.)2 of the .Act, i.s not nltra vires of 
 the Dominion parliament. Dnijlc v. AV//, 'M (\ 
 V. iV.M. This e.cse has lieen carried to appeal. 
 
 An action to recover the ]ien;dfcy of .S200 im- 
 pos''d by 'M Viet. c. !), s. lOS. The (!th para- 
 graph of the statement of claim alleged tint the 
 ilefi'ndant .as Oeputy Uvturniny ( •llieer ne;,deoted 
 to make out the statement rei|ainMl hy see. 57, 
 and enelos'j it in the ballot box. 'J"he 7th para- 
 gr.apli allcLfed that the defendant pretended that 
 he did make np the statement in (piestion, imt 
 that he inclosed it bj- mistake in the envelope 
 containing the ballot papers ; an'^ charged that 
 the doing so, was a neglee't of duty, within the 
 m waning of the statute. The defence denied the 
 .statement of i-'aini, and alleged, ('!} tliat the non- 
 p.'rformanee of any formality was unintentional 
 on the part of the defendant, and was not the re- 
 sult of a guilty mind. On a motion to strike out 
 the seconil paragr.iph of the defence, (.Cameron, 
 J., gave leave to the plaintilF to take exception 
 to that pa.ragrapli b)' demuirer. And, Sendile, 
 that the paiagrajih shewed no valid ground of 
 defence, and th.it if the ilefemlant made the al- 
 leged mistake, no cause of action existe<l under 
 Sec. 57. i'lUitiTiin v. diiciii, '.( 1'. U. 405. 
 
 In an action under R.S.O. c. 10, s. IS'2, against 
 an agent for the sale of ci'own lands to recover a 
 penalty .alleged to have been incuri'ed by voting 
 at an election of a mendier to the Legisl.ativu 
 Assembly, contrary to sec. 4 of the Act : -llehl, 
 overruling a demurrer to the staiement of claim, 
 that, though forfeitures and penalties Ik long to 
 the (..'roivn unless otherwise disposed of, the sum 
 declared to be foi'feited by sec. 4 of the Act for 
 a breach thereof is a penalty within the meaning 
 of sec. IS'-', subs. 1, for which an action may be 
 maintained by any person who will sue for the 
 .- inie. Shrh/hij \\ Tajloi; 4 O. U., Q. B. I). \VM\. 
 
 III. Scrutiny .\m) RF.rorNr. 
 
 On a scrutiny the practice is for the person in 
 a minority to iirst place himself in a majority, 
 and then for the person thus placed in a minority 
 to !-trike oil' his op[)onent'.s votes. Sidriiinnt Elfc- 
 lioj) (<),if.) — /i<l/iiiiii' v. (Jol'i'ihouii, I If.K.O. 21; 
 7 C. L. .1. IV.l 
 
 An objection that the persons objeeterl to were 
 not owners, tenants, or occni).ints within .s. 5, of 
 .■{;2 \'ict. e. 21, excluded an objection as to the 
 value of the assessed i)roperty. — Morrair\i eotc. 
 Sdiillt (liYiir'ilIc E/irlioit ((>iit.')—Fjri'< v. Frani'i; 
 1 U.K. 0. 103. 
 
 Where a petition claims the scat a scrutiny of 
 
 ' votes may be ordered to be taken in each inuni- 
 
 ciiiality by the registrar acting for the judge on 
 
 the rota. Wf.^l Ktiibi Eh ction (Oiil.)-- Ciuscculen 
 
 V. JlHiirur, 1 H. I'i. C. 2-27. 
 
 Durmg the scrutiny ot votes the respondent 
 .abandoned; the seat to his o|)ponent, after his 
 op|ionent had secured a majority of eii;ht votes, 
 and agreed that such should stand as his oppo- 
 nent's majority, an<l that the c(Uirt should declare 
 I such opponent duly elected ; and the same was 
 ordered by the court. //;. 
 
 i A petitioner claiming the seat on a scrutiny 
 m.ay shew, as to votes poUeil for his opjxment : 
 (1) that the voter was not -M years of ago; (2) 
 ! that he was not a subject of Her Majesty by birth 
 j or naturalization; (;)) that he was otherwise by 
 ; law ])revented from voting ; and (4) that he was 
 j not actually and bona lide the owner, tenant, or 
 ' occupant of the i-eal |)roiierty in re.-'peet of which 
 I he is assessed. Xorlli Vu'lnr'ni J-Jlirlion (Doin.) - 
 I Citinrroii V. Mdcli'iniini, 1 H. H. C. 584; 10 0. L. 
 jJ. 217. 
 
 (j>n,'erc, whether the county judge can object 
 , to the validity of a ballot paper wluni no objec- 
 ' lion has been made to t!ic same by the candidate 
 (ir his agiint, or .an elector, in accordance with 
 the provisions of 37 Vict. c. 10 s. 5f!, at the time 
 of tlie counting of the votes by tlu^ di'puty return- 
 ing oIKcer. ',>'"'''"''•' (^'»iiitii Eli'Clioii {Dam.) — 
 .J<iik\ii.^ v. Ilnrkei), 7 S. 0. K. 247. 
 
 See /'iHti'lf KIccfhm (Out.) — Ihtkcr v. ^^or<|'ln, 
 1 H. !•;. (.'. 51!t. p. 52{;. See also, /ioUiin'll Eloc- 
 liuii (iJoM.) — Ilairh'iiiHy. Smith, 8 8. C. R. ()7(). 
 
 IV. AliENCY. 
 
 I. Geiierdlli/. 
 
 Observations on the reasons why ean<li<late3 
 should be held liable for acts done by their 
 agents. The Taunton case (1 O'.d. c\: H. 184), 
 aiiproved. HV,s^ Toroiilo E'rrthiii (Out.) — Arm- 
 stroitijw Crook*, 1 H. E. C. 97. 
 
 Agency iu eleetion matters is a result of law 
 to be drawn from the facts of the case, and the 
 acts of the individuals. En.fl /'licrlmroiu/h Eli'C- 
 tion (Ont.)—Sti-altoii v. O'Siilliihui, 1 H.K.'O. 24'}. 
 
 The law of election agency is not capable of 
 precise <letinition, but is a shifting elastic law, 
 capable of being moulded from time to time to 
 meet the inventions of those who in election mat- 
 ters seek to get rid of the conse(iuences of their 
 acts. North thiturio Election (Doiii.) — Gibbs v, 
 Whvkr, 1 H. E. C. 785. 
 
528 
 
 529 
 
 P AllLT A>[ E STX II V l-, L HOT LO XS. 
 
 530 
 
 NT. 
 
 10 pnraoii in 
 
 a iiijijiirity, 
 
 ill a niiiioi'itv 
 
 '/(iri'ioiif Elir- 
 
 ir.KC. 2i: 
 
 Boteil to won: 
 ■itliin s. 5, of 
 )n as to tlio 
 'nrrotr's cot<'. 
 's V. Fra.vi; 
 
 I sci-ntiiiy of 
 I oach niuiii- 
 tlio judye oil 
 - Catmulcii 
 
 a respomloiit 
 lit, after his 
 t'i_'lit voto.M, 
 as Ills o])[io- 
 louMilccIan' 
 10 same was 
 
 II a scrutiny 
 s o])]>onoiit : 
 
 of ai'c ; (-2) 
 I'sty by birtli 
 thorwiso by 
 
 that ho was 
 1', toiiaiit, or 
 K'ct of which 
 ion (Dom.) — 
 584; IOC. L. 
 
 e can object 
 jii no obj(!c- 
 hu candi'latc 
 I'lhince with 
 at tiio time 
 ■puty return- 
 )// (Dam.) — 
 
 ■ V. ^Fonjcni, 
 
 titt/iircll Elec- 
 
 C. R. «7(>. 
 
 f candidates 
 1110 l)y their 
 . & II. 184), 
 Out.) — Anii- 
 
 esiilt of law 
 aso, and the 
 luroiii/h Eh'c- 
 H. E.G. -'45. 
 
 it capable of 
 elastic law, 
 :! to tiiiiu to 
 iloction inat- 
 lees of their 
 i.)~-aibbs V. 
 
 Per riwynuo, T. That if an act, made a cor- 
 rapt iHML'tico liy statute, is doi'u by an a'^-ont of a 
 cui'li'lato. but not in pursuit of the object of t!io 
 a'^uuey or the iutorost of the candidate, or in 
 any way in ivlatiou to tlio election, lint sul^'ly 
 for the purpose, interest, or gratilicatioii of the 
 a,,'ent, siicli act, not l)oiui,' done )>y such airent 
 (pia agent, is not witliiii tiic jienaltiea of 'ii] Viet. 
 c. •-*, s. 3. Lhir.,/,! Efi-rlha (Oiil.)~/i>iL-rt v. 
 X,<loii, 1 H. K. C. .•};)l ; 1-2 ('. L. .J. KM. 
 
 Alle','atioii, that tlie government of the T'lo- 
 viui'U of Ontario, in the interest and on behalf of 
 the re<pondent, used uii liie iniliien';e to secure 
 his return. Objectioi!. that no agenov was allo:^- 
 cd, and because no such agency, if allegeil, could 
 in 1 iw exist r — lEcld, that thi.s objection .should 
 he k;ft to be disposed of iiy the juilge at th(! trial ; 
 and, Senil)lc, tliat (,'viilence of agiiU'-v coiiM Ije 
 given umler the allegation. /// re 11''--' Ilnrnn 
 'K'rr/:,„l (l)<>in.)—Mi'rh'a v. ('.tiHriil, I (). U., 
 (>. 15. D. VAX 
 
 ')'i-i;,'rv,itious on the iiujii-opriety of Division 
 Ciiurt baililTs canvassing voters duri.ig an elec- 
 tion. Xorlli Vh-iorhi E'-rfioii (Dom.) — Caiivron 
 \- }[ i'-lriini(n, 1 If. K. C G12. 
 
 'I'lie parliaiie'Utary law of agency is a special 
 1 iw. and i.s iliireivnt from tlie ordinary law of 
 agency. In ]i.irlianioiitarv elections the princi- 
 pal is liable for all aets of ids .agent, oven where 
 siieli acts are done contrary to tiie oxjiress in- 
 stru.ttions of suoli jjrincipal. C'lr/rct'l H'rr/liin 
 {l)«,ti.] -I'.rnint V. .\f<ic:lo,inhJ, 1 fl. K. C. 547; 
 
 IOC. L. J. ;!i:!. 
 
 dent promised to pay it to him, ^nd lio voted, 
 and the money was paid aftor tlio election, and 
 elrirg 'd h/ the clerk in th; ag'iit's ai; • >inits i s 
 '• jiaid ,1. Landy ■<{," but witlmut the kuowlcilge 
 of sueli agent. Anotlier agent nf the I'Cipondcut 
 (Mel).), who was treasurorof the ward, and w.ia 
 aware of the claim, and had tnld tie voter it 
 wjuld bo nude right, pai 1 the lirst ag 'iit's ac- 
 count, but did nit then tik.! pirticnlar n )tico -f 
 the pavment, and it was not eNoIiiued to him. 
 Th'j clerk hid been re piosted liy liis einl>l';.y''i' 
 (the agent lirst mentionell to eanvasi a pa''t'^"- 
 lir voti'r, but was not cmpl'iycl as a imiiv'i-'**''!' 
 generally by , any one : — Held (1), that such c''='''^ 
 was not an agent or sub-agaiit of the, respo'i^ 
 ilent. ('2) Til it tho payment of the iceount by tli" 
 agent (M'd).) wis not under tho circnnntinc.i* 
 a rititicition by him after tho act, so as to iiffec*' 
 
 tho election. W'-^t Tn 
 
 /■; 
 
 'mi (O//'.) — 
 
 2. /ii'Hriilnnl Ai/ni/,i. 
 
 To sustain the relation of agency, the ])eti- 
 tioiic;r must shew some recognition by the can 
 (liihite iif :i volant iry agent's services. Tho 
 Westiuinster case (1 0".M. it H. 8'.)) as to agency 
 followed. U'i I!. ni'l p:i-<-l[oii (Onf.)—/ir<itf!/ v. 
 Ciirnr, 1 H. K. ('. 47. 
 
 When a cmdidate puts money into tho hands 
 of his agent, and exercises no supervision over 
 tho way in which the agent is spending that 
 iiio':ey, but accredits and trusts liim, and leaves 
 him the jiowcr of speiiiliug tin; money, although 
 he may have given direetions that none of the 
 money slioiiM lie improperly spent, there is such 
 an agency establislied that tlie can<lidato is liable 
 to the fullest extent not only f(n' what that agent 
 iniy do, but also for wliit all those rtdiom that 
 ii^'ont employs may do. Smilh (Ivotj Hlcftian 
 (<>iil.)—fra,i/\'r V. Lxii'lr, 1 H. K. C.".")2 ; 8 C. 
 L. J. 17. 
 
 lOvideiieo was given to show that certain pir- 
 ties hid attended meetings with the respondent 
 aiiil canvassed for him, and had iierformed other 
 acts of alleged agency, as set out in the evidonoe ; 
 — Held, that the acts of alleged agency relied on 
 ill thaevidonec wore not siillijicnt ti) constitute 
 such parties the agents of the res|poiidcnt. The 
 p.'tition, nevertheless, was dismisse 1 without 
 costs. Xoiili York Ehdhm (OHt.)—Gorh'iiii v. 
 Uoultlu'C, I H.E. C. (.2. 
 
 A voter who had a claim of S.S from a former 
 election of rospoiiilent, when canvassed to vote. 
 Slid he did not think he should Vfite, evidently 
 patting forth the S.'? that was duo to him >as a 
 grievance. The clerk of an agent of tho respou- 
 
 34 
 
 Avm<h'iinif V. Cr<f>l-<, I TI. K. C, 
 
 One 0. aeGompa.nied tho respondent when go- 
 ing to a public ni.'oting, and canvassed at some 
 houses. On the iourney, the r'spmdent cau- 
 tioned 0. not to ti'oit, nor <lo anvthing to com- 
 promise him or avoid the oleetion. Ties respon- 
 dent's agent naid for C.'s meals at tiie place 
 where the meeting was bold:--Mold, th:it the 
 evidimee shewed tiiat the respondent hid avail- 
 ed him-self of C.'s services, and was therefore 
 responsible for his aets. E'kI Pclifhorimnh 
 E'lrHnii. (i)a'.) — ^'ri'l):i v. 0'.'^:i"'r in, 1 TI. H. 
 C. 240. 
 
 .\ witness stated that bo had asked the people 
 in his iieiLrhb inrhood to vote for the respondent, 
 had attended a meeting of t!i i his friends, and 
 III ide arrangements forbrin'jingnp voters on poll- 
 ing day, and had a team out on ])olling d;i,v : — 
 Held, tint the evideuco of his b uii.; an agent 
 of tho respondent was not sutlicient. /'/. 
 
 One S., who desired U'lmiuation as a candidate 
 by a reform convimtion, was not nominated, and 
 thereupiu, from hostility t:) the convention and 
 its nomineo, ojipisadthe can li late of the con- 
 vention, which thereby had the eTeet of support- 
 \ ing tho respondent. At tho close of the poll, 
 ! the respon lent iiuMiely thaiike.l S. for being 
 ' iustrunijutd in bi-inging ab )ut his election. S. 
 I owned a shop ami tavern, but the li^euso for the 
 1 latter was in his clerk's name ; and iluring the 
 1 polling hmirs on polling day spirituous liijuors 
 i were soil and given in the shop a;i I tavern: — 
 I Held, that what was done by S. .at the elocticm 
 I was in imrsuanee of a hostile finding against the 
 j convention and its candidate, and did not consti- 
 ' tuteUimanag'Mitof tho respondent, ('if.lin.'ll !']!(•'•- 
 Hon (0»l.)—0'(Ml.i;/han v. FIr.'flirr, 1 H.H.':!. '2G9. 
 
 One M., the reeve of a township, exerted him- 
 self strongly in favour of the resi'ondent,_ to 
 whom ho was piditically opp isod, and against 
 the other candidate, and attended meetings 
 where the respon lent was, ami s,) ike in his 
 favour. The reason for his supporting the re- 
 spiuidont and opposing the other (ministerial) 
 candidate, with whom he was politically in 
 accord, was, that the ministry fif the day had 
 separated the; township of which he was ri.'eve 
 from t!ie Hiding. Ho was annoyed and indig- 
 nant ,it this separation, and aunonncaid his inten- 
 tion of using all his inlluen a; against tli; minis- 
 terial candidate. Tho resitondent asked M. to 
 attend a public meeting, which he did ; ami at 
 
631 
 
 PA 1<UA^\ his TA ] ; Y KLECTIOK S. 
 
 ?■ 
 
 tt,: 
 
 ^ 
 
 Z'i 
 
 ,31 
 
 iiiuitlui' niictiiifj; wliicli lie attciukd, ^I. i^liitdl 
 (lait iKit iiitliu iiHi (iiiiUiit's licjiiiiij;) tliiit lie wun 
 ■M-tiwy. till n (111 tlif vi^\ ( inUiita 1 t liull. M . « lis 
 (ilite ill tlie itsidiiiUiil's l'( iiiiiiittie idem, iiiiil 
 sij;iK<l iiiul liuulatnl liiciilMs ii^!-ui d hy tlif 
 l»'Sj,(ii. (kilt's iiuiids : -lUld, '1 luit llie (jiustinii 
 (iliitiiKV Kii'j; (iiie (if intuit, tliu ii^i (.i;(.l(iit, 
 iiiiikr tl t'ciiciiiiiSt;iiK(s, invticdiiknidni dii M, 
 tlio ;iulli<iiity, iimdid M. antjit the dLk^atii 11, 
 of aii'!ij;iiit lor tlic iniridi-f ui tlie ikutioii. A(fil/i 
 (•nil hlivt'iiii iOiil.} — Jkiii(i)i(iiti V. .S(C(//, 1 U.K. 
 
 V. :«;•-'; lie. L. J. "i-j-j. 
 
 Mil e tanvn&siiigdf ilstlf di.xs not judvu ag( my, 
 but it teiids t(i i^Kivc it. A iiiiliilicr of attti, 1111 
 one (if ■xvliiili lliii.:lit in itsill lie k liellLsivi! j.nof 
 (if rj;(n(y, may, mIkii takin t<'j;itlier, iin.oiint 
 to jiHiof (if .'■lit li ajjiinj'. I'liK n^^ who ian\abM(l 
 and vent to n citings with tl.e iti-j ondint, and 
 atttnikd niietiiij.'S to |ii( mote the eketion, at 
 ■whieli meetings the iisj (indent attnided ; and 
 l!eiS( lis vho eanvai->((l with and inlK dined 
 voteis to the usi;oii(knt, eaikd ii,eitinj:.s and 
 a]i]i(iint<(l eanvasi-eis', exi mined the remits oi 
 the caiivas.s, and did (thu' ;iets to fuilher the 
 eleetidii, wne ht Ul to 1 e agents dl the lis] la.d- 
 ent ; and loiniiit jiiaetices eon inittid hy tin in, 
 and hy suii-ageiits a] liointcd hy tluiii. avoidid 
 the eketiili. Ct.rinrdll KlivlUii [Jji.iii.) — Jli iijIk 
 V. Macdvtnikl, 1 11. K. (.'. iA~, ; 1(1 C. L. J. 313. 
 
 A year liefoie the eleetioii the lesjidniknt ]iaid 
 part of the ihaiges (if a lawyer letained hy diie 
 O. to attend the levisidii of the assessiiieiit rolh-i. 
 O. at the time of the eleetioii attended (iiiu of 
 the ies-iidii(kiit".s ineetingH at whieli he stated 
 that his (Wii mind was not n aik' ii]i, l.nt he 
 urged that the nsiioiident ought to liave the 
 siijuioi't (if the voteis, lie being a heal man ; and 
 in tliiec or fdiir iiistames (). asked voters to vite 
 for the itsjc iKleiit. 1'he usiku ikiit and his 
 friends ilistiustid ().. and in no way iieegnix.id 
 him as aeting with them: — Held, that (). was 
 mit an agent of the resiiondeiit for the iniU'dsis 
 of the eleetiun. lliiUon Ktict'wH {lJuii.)—t'rv.-t< 
 V. JlcC'raiii 1), 1 H. E. C. 73U. 
 
 One C. canvassed for the resj (indent, and told 
 tlie lesiomknt he was going tosnpj 01 1 him, and 
 the lespoiuknt I'Xjx'i ted and undeistiK cl that he 
 wuiilil do evei'N thing he eould for him legitimate- 
 ly. C did not attend any meetings ot the iis- 
 piindcnt's eonimittees, anil made no returns of 
 his canvassing :-Held, on the evidmee .'et (ait 
 ill the judgnunt, that ('. was an agent eii the 
 rtsjonelent for the ijur]:(;ses of the eketidii. 
 Coihiiall Ehiiioii (3) (J)iiiii.) — 2Iui:ltniM)i\. Ihi- 
 gin, 1 H. E. C. &03. 
 
 One P., a tavern keeper, took the petitioner's 
 side at the eleetioii and at a meeting ealled hy 
 the petitioner, at whieli he was aiipointed clndr- 
 maii. Notices of this meeting were sent hy the 
 petitioner to P. to distrilnite, some of Avhich P. 
 put up at his house and some he sent to other 
 places. On polling day P. desired to give a free 
 lUiinev to some of the petitionei's voters, and 
 askcel the petitioner if he might do so. 1'lie pe- 
 titioner elid not ajipidve of it in ease it sliould 
 interfere with his eleetioii, and warned 1'. that 
 although he was not his (petitioner's) agent, he 
 would rather he sliduld not do it. P., notw itli- 
 standing this, paid for free dinners to 40 of the 
 jietitioiier's voters: — Ilel.l, by the .Court of 
 Queen's Bench (afliruiing Wilson, J.), That P. 
 
 was not an agent of the jelitioiier. Xurll'l'a'- 
 U'lUi Lliilnii l-j \Jhiii.)—i-Vii III. II \. Mucin run, 
 : 1 II. ]•:. 0. 071 ; 11 C. L. J. Hi3. 
 
 Seuible, if a candidate in good faith nnderl; kis 
 the duties which his agent might nndertaki. the 
 acts of a few /ealons | olitieal flit lids in canva^^illg 
 for him, introdueing him to eleetois, attei ding 
 ]'iililif meetinjjs and advdcating his eleitiou, or 
 liiiiigiiig Vdteis tdtlie jdll, Wduld notinake siuh 
 ' eantlithite rt sponsible loi prohiljited acts etri.ti.-.iy 
 to his piibluis (kclaied will and wishes, antl willi- 
 diit his knowledge and ceiiseiit. >(.»/// Soritilk 
 IJ/iiiiuli (JJl.lll.)- iJiiiirV. U'lllldn;] 11. K.C. (■(■(!_ 
 
 Ilie respondent in his eviiknce stated that lie 
 
 j (ibjeeted to e( liaiiittees ; that he knew eeitaiii 
 
 i|eis(nsweie his sn]iidrteis, and Itlievtd tl.ey 
 
 tlid their lest fi'i' him, but he did not jicisio ally 
 
 ; know that they acted for him. Olhei (vitltnee 
 
 j !-l.eWctl that Ihe.'-e ] eist lis tt ( k jail in the ekt- 
 
 tidii (ail elialf df the ies> (indent ; s( me s] ( kt for 
 
 ' himatta e of his meeting ; ai.dt ne ol tl.tm staled 
 
 j that he and n 11. e of tlu otheis canvas.'-til fia' tht; 
 
 lesiiaident, and that \n' gave the nsiiri.deut to 
 
 uiKkrstand he was taking part in the eleetidii 
 
 kir him :— Ht!d, that as it tliil not a]) tar that 
 
 any une of these jcrstais was antlioiii'td liy the 
 
 iesp( luknt to n present him. and as tin y dii. i.ot 
 
 claim to have any such authoiity fiom liim. liit 
 
 I sii]i]i(irtt (I the usiMiiKknt as the ciiiilidate of 
 
 their jiaity, the saitl peisons were not agcnls of 
 
 the ies))on(knt feir the puriiosea of the election. 
 
 Peniai l.s lai the evidence of ageiu y :- -Sen .Me, 
 I that if a candidate who ha.d api ointtd no a;:i iits 
 I was aware that some of his su[i[Matei-s were sys- 
 
 ttmatically woiking fta' him. and by any att, or 
 I forbeaiance, could be fairly deemed to letei; iiize 
 land a(hipt their proceedings, he would n.ake 
 
 them his agents. ///. 
 
 iSee Suiil/i Ontario Eictiun (Unl.) ~ Furin I' v- 
 ISii.ini, 1 H. E. C. 4-:0„ \>. i)..? • i.^'y^ili E!. ■ /Ion 
 (Oiit.)—Oi/ilcic v. Jkil: r, i ' :'.. 'J. !'Jl), p. o'tS. 
 
 3. J/( niliir^ v/' ( (. I '('.■. 
 
 If a meeting of electors assembles aiitl has the 
 sanction of the candidate, such candidate is its- 
 ponsible for its acts and the acts of the aj t nts 
 a]]iointe(l by it. Jkit whcie the met til g is 
 large, then all present cannot be considertdas 
 agents; tmly those to whom ct rtain duties, either 
 as a coininittce or as individual canvasseis, are 
 assignetl. CunnvnU Kl< dinn [Dmn.) — /lin/iii v, 
 JIualuiiuliI, 1 H. ]•:. C. ri47; 10 V. 1.. J. 313. 
 
 The respondent noininated no committees to 
 liromote his election ; but he was aware that 
 eoniiiiitte'.'S were acting for him in each munici- 
 pality, (hi one occasion he W( nt to the ddor of 
 one of the coiiiniittee looms, and left some print- 
 ed bills to be distributed. One 1'. wiio attended 
 the meetings of this committee, and who said he 
 was considered on the coniniittee, committed an 
 act of bribery : — Held, that the ctinmitteo wtie 
 agents of the resiioiident, that P. w is a meml er 
 of the e( ininittee; and an act of biibery having 
 lieeii committed by him, the eleetioii was avoitl- 
 etl. EiikI XiivlliiiiiiliirUuid Eli'vllvn {I)viii.) — (»'(''• 
 sun y.Bhjijav, 1 H. E. C. i)77. 
 
)32 
 
 r)33 
 
 PAllLIA.M ENTARY ELECTIONS. 
 
 :>u 
 
 H1-. XorL'iVtc- 
 'II y.Jilac/iiniii, 
 
 fililll lllldfll; |<(S 
 
 t miildiiikc, tlio 
 lis ill C';iiiv;i:.-iiig 
 
 ctdis, (ittil (iiiig 
 liis fk'ctidii, (ir 
 
 1 iHit iiiiike Miili 
 
 nl JUts fdlltlMV 
 
 n.-lios, Mul will,. 
 
 ■J li.K.C. ((0 
 
 MatKl ll.i,t he 
 (.' kiJiM' CD tain 
 1 1 1 liivtci ll.ty 
 i iKit IiciSdMilly 
 (IlLt) (viduHO 
 ml ill llif (!u- 
 
 M nil: !^] < ]<(■ for 
 Cdl U.dl, -,l[it(:,l 
 llVJ'tMd i'dl tl.f 
 
 li •'-] M.dciit to 
 ill tl;f ikft'iiU 
 
 lot ii] ] (,-ir tlmt 
 tliciivtd la the 
 1 .^s tluy dii; i.ot 
 
 ' fldlll llilll, lillt 
 
 H- ci iididatc of 
 c not !i^i;tiits of 
 of tlie L'luctiuii. 
 
 Liic V : -.'•ciLlile, 
 iiitcd no ;i^( iits 
 rtfi'-s woru sys- 
 1 liy iuiy iHi.'or 
 III d to iiio; iiiy.e 
 lu vould ii.ake 
 
 '■-■. VM, p. .Vi8. 
 
 iks and !iri.-- the 
 'Mididalo it. iis- 
 s of tlio aj t iits 
 till' nii'i til j4' is 
 u coni-iden d as 
 ill dutii s, tillifi' 
 caiivas^eiP, arc 
 
 III. ) — /Jl}-i/ill V, 
 
 '. J,. J. ;}/;{. 
 
 coiiiniittcf.s to 
 
 a.s awai'o tliafc 
 II each inunii'i- 
 
 to the door of 
 uft siiiiiu piint- 
 . \\ ho attended 
 lid who said lie 
 
 eoiiiniitted an 
 oniinittee vi le 
 WIS a nieliil er 
 liiilicrj' liaviiig 
 ion was avoid- 
 u (l)um.) — Uib- 
 
 Certaiii suiiiiortcrs of the respoiidunt met in ii I niotiug Iiis election, as to make tlieni his agents. 
 
 
 idoni over a tavern to promote tlie election of 
 the I'esi oiideiit. Their meetings veie presided 
 over liy an agent of the respondent, and the res- 
 iiomleiit attended at least one of such meetings : — 
 Held, that the persons who attended sueli meet- 
 ings were agents of the respondent. Niuili (hitiiiio 
 EkdloH (Dotii.) — UiliLi V. W'fiekr, 1 ll.E.C. 785. 
 
 \utili O'ni/ E/i-ctiuii (Oiit.)—Jiii(irdii:iiii 
 1 11. K. C."3(;2; 11 C. L. J. 24i.>. 
 
 V. Sodt, 
 
 By the eonstitiition of a reform association, each 
 delegate to the eoliveiitiuii was actively tn pro- 
 mote the election of the candidate a]iiii>iuted liy 
 tlie convention. The respondent had iiiniself 
 lieeii for six years a ineiiilier of the assnciatiini, 
 ami was familiar with its olijeets and eonsticii- 
 tioii. II u had also as a delegate acted and can- 
 vassed for other can<lidates in the judinotion of 
 their eleelioiis, and exiieeted the like as.-i.-itauce 
 led for tile ]iurpose of selecting a candidate, who ' from the present memliers of the association, and 
 
 to tile perfection of that system as an election- 
 
 4. MvmhiTu of Pill il leal A.<Kocia/!oiis 
 The delegates to a political convention assem- 
 
 iiever iiad intercourse witii tlie candidate select- 
 ed, and who never canvassed in his hehalt, can- 
 not lie considered as agents for such candidate. 
 U'llldiiil EkcliiiH {Out,) — JJiir/iiiirv. t'nrrU', 1 11. 
 E.(J. 187. 
 
 Where a jiolitieal orgaiii/ation, after nominat- 
 ing their candidate, divideil into comniittees "to 
 look after voters in the particular wards in u liicli 
 they resided : "' and the res[)ondent had nol iveii 
 iiuthority to any meiiilier of such eoinm ees, 
 nor to any canvasser, to canvass generally : — 
 Held, that one K., who 
 coniinittee for \\ ard No. 
 
 ering agency, the res))ondent owed his election : - 
 I Held, that the delegates to the association, act- 
 ! iiig as such in jiromoting the election of the res- 
 ' poiideiit, were his agents, for whose acts he was 
 j respiinsilile ; and that an act of hrihery commit- 
 ted liy one Jv., a delegate, and who canvassed 
 and otherwise acted for the res^Kllldellt, avoided 
 ' the election. Eiii>tJ\'oii/iiiiiilicrliiiiil Klu'twn (Out.) 
 j — C'ancy V. Ftrri--:, I 11. J'^. C 3)57. 
 
 I The respondent was nominate'' oy a conserva- 
 was a luemlier of the '^tive association, and he accepted tiie nominatiim. 
 I, and who was aliei;ed 'I'he delegates to the association were to do all 
 
 to have committed an act of liriheiy in Ward they could to secure his election. A eomniittce 
 
 Xo. (), having no authority to canvass in the was ajipointed in O. to canvass the town, an<l a 
 
 latter ward, was an agent ^vltll limited authority committee room was engaged and paid for by the 
 
 to canvass in \\ ard K<i. '2 only, and therefore association, voters' lists were procured and used 
 
 the respondent could not he made lialile for his as canvassing books, and memliei's were appoint- 
 
 alk'ged acts. Linidiui Eticlkm (Out.) — Juninui ed to canvass parts of the town, and reports were 
 V. Mereilit/i, 1 11. E. ('. -214. 
 
 One M. was a iiicmher of a township commit- 
 tee, organized by direction of the convention 
 which nominated the respondent, and the work 
 of the election was iiiit into the hands of these 
 township comniittees. M. canvassed his school 
 section, and had a voters' list, which was taken 
 from him by the committee on the allegation 
 that he was not doing much. The respondent 
 never asked M. to work for him, but M. asked 
 the respondent what success he had. The res- 
 pondent had no one acting for him except these 
 comniittees and some volunteers, ar.d he never 
 objected to the aid they were giving him, nor 
 dill he repudiate their services; — Held, on the 
 evidence, that the respimdent was responsible 
 for these committees, and that il., as a member 
 of one of such committees, was an agent of the 
 respondent. 2^'uitli Oiittiriu KliCtion (Out.) — 
 McCankdl v. Piutuu, 1 H. K. C. 304. 
 
 About a dozen of the ek'ctors met some time 
 before the election and nominated the respon- 
 dent as the eaiulidate who should contest the 
 election in the interest of the political party to 
 which they belonged. The respondent accepted 
 ami acted upon the nomination. They met occa- 
 sionally for the purpose of promoting the respon- 
 dent's election, procured voters' lists, canvassed 
 voters, and got reports on which they estimated 
 their chances of success : — Held, that if they did 
 not style themselves a eonimittee, they had as- 
 sumed the functions which usually devolve upon 
 such bodies. Xortli Weutwarth Elcctwu [Out.] — 
 Vhmtie V. iVocA', 1 H. E. C. 343 ; 1 1 C.J. i . 19(5, 1'OtJ. 
 
 The fact of a political asaociatioii putting for- 
 ward and supporting a particular candidate docs 
 not make every member of the association his 
 agent ; but tho candidate may so avail himself 
 of their services iu canvassing for him uiul pro- 
 
 made to the committee of the result of the can- 
 vassing. The res[ioiidcnt, who resided at \\'., 
 did not attend the meetings, but knew they Were 
 canvassing for him, and gave them blank aj([)oiiit- 
 incuts of scrutineers to till up, which they did, 
 but the resiiondent did not know who eomiioseil 
 the coiiimittue ; — Held, jier \\ ilson, .1., that the 
 respondent, by authorizing such committee at 
 (). to aji[)oiiit scrutineers, made them his special 
 agents for that [larticular matter and for that 
 occasion only, and did not adopt tliein as his 
 general agents for all the purposes of the election. 
 >ionl/i OiUar'u) Lliclitju (Out.) — Fiini^etlv. lirmi'ii, 
 1 H.E.t!. 4'JO; .V. C. 6ab uwa Funu-rM v. Jlruivu, 
 
 rjc. L. J. Liii). 
 
 j One T., a niembor of such committee, canvassed 
 j actively for tho respondent and to his knowledge, 
 and on the nomination day attended a meeting 
 of the resiioiident's friends in W., at which the 
 respondent was present, and at which arrange- 
 ments were made about canvassing and getting 
 out votes, and generally about the election : — 
 Held, by the Court of Appeal, Wilson, .1., dubi- 
 tante, that T. was an agent of the respondent 
 for the purposes of the election. Jb. 
 
 One G., a member of the same committee, had 
 a voters' list, and canvassed for tho resjiondent, 
 and stated ho had no doubt tho respondent ex- 
 pected him to vote and work for him : — Held, 
 per Wilson, J., that G. was not an agent of the 
 respondent. Jl>. 
 
 The committee of tho town of W., having been 
 recognized and attended by the respondent, were 
 held to ba his agents. If). 
 
 5. Sah-Agi^nts. 
 
 On a charge of bribery against ono T., and one 
 A., upon which this appeal was decided, the 
 
V.\ 1! IJ A ^^KNTA1^Y ELECirONS. 
 
 5:5(j 
 
 r):37 
 
 Ha 
 
 c 
 
 ii;; 
 
 
 Jmlge wild tri. il Hie jM.'tition !:,\\n<\ umix f;icttli;it 
 A. Had lii.cii (linctuil liy 'J'., an adinitt.-il ngi'iit 
 (il tlic I'c-^lKiiiik'iit, til cnipldy ;v nuiiiln'i' nf |icv- 
 Miii.i to in:t ;is ))()lic(.'iii«ii at <iiii; (if thu liolliiiy 
 jil ices in tliu imrisli df Hay St. Paul, (in the ]i(ili- 
 ii:,' ihiy, aiii! had lii'ilictl i'liiir Vdti'r.s |ircn'iiiiisly 
 kiKivu t(i lio sui'iKirtciH (it' thu aippclhuit, liy 
 living them Sl2 vM-h. Init Hold lliat A. was ndt 
 af.'i.'nt (if tli(j i(.'sii(ind(,'nt, and, th(.Tffdi-f, lu:^ acts 
 (^■duld nut Vdid t\ni elc'ctiiin :— IIcM, (Ui aiipcal, 
 tliiit as< tli(.i-a Mas lui uxciiao or justificatidn for 
 t'linildyiiij,' tln'SL- vot(.'r.s. thcif cnipldyim-nt was 
 ninx'ly (.•dldiirabli', and thusc Vdttus liaviiig 
 (jh-iiiL.''. il thi'ic votes in ionHi.MjUL'ncL' (if the inoiicys 
 Sd |iaid to tliciii. and the nittiii'' muiuliLT lioini' 
 
 'I'lit- dulinition of " coi'Mipt praeticen" in h. 3 
 (if tlic l)dniiiiidn ('(intrdvortcd i'lU'ii'tidiis Art 
 JNT.'i, udnsiilcred. Xorth Victnriit I^'Jiclimi {Dom.} 
 CiniKri'ii V. Miu'b niiitn, 1 H. JO. t^'. ."(Si; IOC. L. 
 J.'.MT. 
 
 'J'he Impeiial and Doininiim olfitidii laws, as 
 to cdirujit pi'ue'ti(_'uH and tli(.if consoiptunccs, cdiii- 
 pat'cd and Udiisidt;ri'd. K'nhistun /'jtirlloii [iJiiiii.) 
 —,V( (/■((/■/ V. .VkciIiiikiIiI, 1 Ji. )■;. (.'. (iJ.'i. 
 
 Whoru (-'iirrupt practices by n;,'cnts, and others 
 in the interest of the res[idndent, alVeeteil Il'ss 
 Vdtej than the majurity olilained Iiy the respon- 
 dent at the election : — Held, under .'i',) N'ict. c. 
 10, s. .'57, O,, that .such cdrru)it practices did not 
 
 •isp(.inMl)lealil;c fdr thcaets of 2\., the t<nli-a,L;cnt, extend heydnd tiio votes utlectJed tliereliy, .iiiii 
 IS lor tlie acts of T., tiie agent, and they havint; , did not avoid tiie election. I/nirn/ii /■J/rriimi {(Jul.) 
 nilty df corrupt ])raeticcs, the election was ' —^'(n('/(/(;/ V. Rijkn't, 1 IJ, !■]. ('. 4S!). 
 
 Ixcn 
 
 Viid. (Taschereaii and (iwyniie. ,],!., lioldni^' 
 that A., the suli agent alone,"had been guilty (if | 
 biibcry. ) < I.,:, -I, n.i.r F.ln-tlun (JJuw.)—Ciinoii v. ■ 
 rninlt, ."i S. (.'. i;, \:v.\. 
 
 1 
 
 Till 
 
 he respondent uave to one If. sonic canvas- 
 sing b(.(.i<s, Mitli directions to jiut them intdjrnod 
 liauds to lie selected by liini for (^'Uivassiuu. H. 
 gave one of the books t^ 
 and li. canvassed tor the 
 
 found guilty (if a corrupt jiractico in keeiiin 
 that part of his tavern wherein liijuurs wore kept 
 in store, so open th.it persons could and did 
 enter the storc-rooni and drink siiirituoiis li(|iuira 
 thei'c during iiolling Imurs on the day of election: 
 — Jleld, tluit 11. w.is specially auth('.i'i/e(l by the 
 resiiondent to appoint suli-agcnt?, and bad under 
 such autiiority appointed 1'.. as Ruli-;igent, and 
 the corrupt practices connnittod by 11. avoided 
 the election. W<JI,iii<l Klr.-fion (<)Hl.)—linchMi- 
 V. Cui-rk-, I H. !•:. ('. is: ; 11 C. h. J. 27.'!. i 
 
 Sec South (')•( ij Kl c/inii {<!jit.)-~Hniit, r v. I.aii- \ 
 tli-r, 1 H. E. C. 52. p. .'52!) ; Cornindl Ekrtioii \ 
 {I>(i,n,)—IWuhi V. Miiri/oiiiilil, 1 H. K. ('. 547, I 
 ]>. 5,'U ; U't.tf Toronlo EIrrtion {Out.) — AniLitroiK/ i 
 V. r/ti,„;',s 1 ]]. K. (,'. (J7 J,. ,-,30: yuuinni Ehrlhin \ 
 (l)oiii.)—liUi.-k (.t al. V. ni(,„t,, 1 If. E. C. 5(i8, 
 p. 54:5. 
 
 Scmble, that the term ''wilful," as used in s. 
 
 08 of .'{7 \'ict. c. !(, I)., caimot be cdUstriK^d in :v 
 
 iiarrnwcr sense than the term "cdrniptly" in s. 
 
 !)2, sub-s. J ; and that the term " corruptly" ddfs 
 
 nut mean wickedly, (ir innniirally, or dishonestly, 
 
 but doing (hat whicil tiie LcLislature pl;uiil\ 
 
 meant to foriiid ; as an act doiu; liy a man kiiinv- 
 
 B., a tavoriidve(-|ier, •"g *''■'' lie is doing what is wrong, and doing it 
 
 resiidndiiit B was with an evil object, //(i/luii Klrrt'inu {Dnm.)— 
 
 ■ ' - ' - ' " « V. J/r-r, ■,(//,',/, 1 II. !•:. c. 7'M>. 
 
 \. BlUBian- AND COHRI'I'T rnACTICES. 
 
 I . Oinemlbj. 
 
 The jilain and reasonable meaning of the st;it- 
 ute, W'l \'ict. c. 21, (>. , is, that when the prolii- 
 biteil things are done in (>rder to indui'c another 
 to jirocure, or to endeavour to procure, the re- 
 turn of any ])orson to serve in Parliament, ortlu' 
 vote of any voter at any cleetioii, the pi'i'son s" 
 doing is guilty of bri'-ery. Eii.'<t Tiiritiito Elte- 
 l!'.'>i{0)if.)—Rc)inir/c.Y. ram, i-iDi, I II. K. C. 70. 
 
 Per Ricluirils, C. J. The intention of the Legis- 
 lature M'as, that votes should lie L;i^■ell from tli'' 
 conviction in the mind of the voter that the can- 
 didate Voted for was the best person for the situa- 
 tion, and that the public interest wouhl bo best 
 served by electing him, and the evil tn bu cor- 
 rected w.as supporting a candiilate causa lucri, or 
 f(ir personal yain in money or money's v.airth to 
 the Voter. J/,i//,m E/rftiuii {Out. )—/hii.i<H v. liar- 
 hi-r, ] H.i:.('. 28.-^ : ,S'. C. ,s»/i )ii>m, llan-U v. Bar- 
 bti; 11 O. L. J. 27:5. 
 
 The giver of a bribe as well as the receiver 
 .,., ,. ni.ay be indicted f(n- bribery. Xortli Vktorta 
 
 i UMlillerence between the Imperial statute j AVtWio/i (lh„it.) -Cameron v. .Vnch-niuiii, 1 H. 
 
 1,-l.S \ict. c. 102, s. 2, subs. .S, proviso), E. C. 5S4 
 
 ind the Ontario .statute (.S2 Vict., c. 21, s. iu, 
 
 sub-s. 3, proviso), as to "legal expenses" inclec 
 tions, pointed out. En.it Toronto FJrrlhm {Out.) 
 
 70. 
 
 'Ikniiifh v. Vauie.rov, 1 H. E. (' 
 
 Tlie first pi-inciple of parliamentary law is that 
 elections must be free ; and therefore, without 
 referring to statutory provisions, if treating was 
 carrieil on to such an extent as to amount to 
 bribery, and utidue influence was of a character 
 on, the election would be void. 
 
 Held, that " illegal and ]irohibited acts rel.at- 
 iiig to elections," in the dellnition of cornipt ! to aliect the electi 
 practices m the Ontario Controverted Elections ! II,, 
 
 Act, 1S7 1, were contiiied to bribery, hiring of I '..,,.,, , , ,^, . „i: 
 
 teams, and undue inlluence. as defined by ss C7 ! , '5 smglo linbed vote brought li(inic to a can U- 
 
 t' 74 of the illection Act of 18(i8. .Vri;Y// lorL 1 '^''*^-° ^^'""•'^ *'"'""' '^""'"'^ "" '"** '^■'"''° •»«J'JF''^y' 
 
 Eh'ct'ion {(hit.) 
 II. E. C. (i2, 
 
 ■O'orham el al. v. Houlthri., 1 
 
 j and would therefore annul his return. //'. 
 
 The avoidance of an election for an act of 
 gent of a candidate 
 
 ti>.n law. lirockcillv ElictUm {()iil.)~Fi;nt v 
 J-'i'uimiiioiw, 1 H. E. C. 13'J ; 32 Q. B. 132. 
 
 See Wc'.^t Ifaxtliuis Ekrtion {Ont.) — ]Veikil v. 
 Willi, 1 II. E. C. 211, p. 55fi. 
 
53G 
 
 practicex" in h. S 
 •il i'lK'otioiis Art 
 
 •('(( /■J/rr/hiii ( l)()iii.] 
 
 . C. 084; IOC. L, 
 
 election laws, im 
 (in.s(M|iioiu;i's, cipiii- 
 
 nit I'jlci-Hiill [hi, (II,) 
 
 ;i,i,'ciit.s, an 1 (itlier.s 
 lit, all't;ctoil less 
 c'l liy f'u rfspoii- 
 uiiilcr ."!) \'ict. c. 
 inacticT'S did imt 
 ;t(;d thereby, aiiil 
 I, III Eli'-ihiii ((Jul.) 
 J. 4S<». 
 
 ul," as used in s. 
 1)0 eciMsti'ueil in a 
 ' corn:|]tly"' in h. 
 " corru|>tly" dues 
 ly, (ir dislioncstly, 
 jL;isl:itiire plainlx 
 le by a man know- 
 ing, and doiny ]■ 
 i:ivlhm (Ihiiii.)- 
 
 anini,' of tlio stat- 
 wiien the pnili!- 
 to indii^'u anotluT 
 iniciuv, tho re- 
 I'arlir.nient, oi'tiu- 
 on, tlu! p'Tson ^<i 
 'txf Tiirniih, EIk- 
 01, 1 II. !■:. C. 70. 
 
 ntion of tlio Legi.^- 
 )0 ,L;i\en from tii'- 
 I'oter that the can- 
 ;r.-ioii for thesitua- 
 jut woidd 1)0 best 
 lu evil to bo uor- 
 late eaiisa hieri, or 
 nonev's v.'oi'tll tn 
 .)—/hlMr//v.Jllir- 
 
 III, ILirris V. liar- 
 
 1 as the receiver 
 
 Xorl/i Vkturki 
 
 ^^ruclciiiiaii, I H. 
 
 Lcntary law is that 
 ;herefore, without 
 IS, if treating was 
 as to amount to 
 'as of a character 
 on would be void. 
 
 ; home to a candi- 
 1 whole majority, 
 s return. Ih. 
 
 on for an act of 
 nt of a candidate 
 t brought about to 
 cure an unbiassed 
 Join.)— Stewart v. 
 
 {Oiit.)—Wefk)j V. 
 
 r)37 
 
 1"aiiliam!:\t.\i;y !:ij:uti()Ns. 
 
 r^m 
 
 •2. ]ti-;',. ni. 
 
 (a I HiinriiH;!, 
 
 Rrihery is not eonliiied to tho ia'lual ; 
 money. U'here a j^Tossly ii'.adenuate 
 
 arti'de, it 
 hrihery. CunwuU t^liclion i/Jniii.]- 
 
 I claims whatsoever." The lespondeut eanvasr-eil 
 
 I S. (hirini; the election, Kayin'.,' ; " I would like 
 
 to have you with mo at tlie election," but S. de- 
 
 ■ f,f j clined expi'e.-isinc ilissati.-^fa(,tioii with the eom- 
 
 latu price has | P^nsation 
 hoen "paid for w<irk or for an arti'de, it i.-i eh'.-i 
 
 :d<';irly 
 'Jlri-t/iil V. 
 
 Mm-iliiiiitl'l, 1 H. K. (!. 517 ; 10 C. L. J. lUli. 
 
 made for the injiirN to 
 res|iondeiit replied lli t: 
 
 IS wi'e. to 
 
 which th" res|ion(ieiit replied lli r. no was aole 
 to do, and eould do, what wa.s riuht. Aftirwards 
 tho respondent sent his salesinin to the wife of 
 . . . S. who tidd her that the respoiideilt was .still 
 
 Tliei'iiynient of a voter a c.\penscs m going to 1 ,,],]j, ^,,,1,, justice, to which she replied she would 
 the poll IS ille.-ai. as sueli, iiiiil a corrupt pr:ic- „.,.jt^, .^ \^,iu,y^ „hieh slio did. and in which .vlio 
 
 tiee, I'veii though the payment may not have 
 lieen intended as a bribe, .s',.,'// (,'ri ;,' IHrdinn 
 {1)1,1) -Jliiiilcrw Liniil.r. I li.l'-.C. fri ; 8 (J. J.. 
 J. 17. 
 
 Where money was ^laid to voters for services 
 a"reei! to be i'endei'e(l bn' such services were not 
 reuileivd owing to the niisconduet of the voters, 
 Mieli ]i.iymeuL was not bribery. II'.-' '!':irniihi 
 El,(tkiii(<Jiit.)—Anii4i\hi'j V. t'i\iiJ.:<, 111. K. C. 
 07. 
 
 Where half :\ cord of wood was given to a 
 voter in poor circiinistanees during the election, 
 and tlie giver swore tli.it it was given out of 
 charity: — Held, not an a^'t of bribery. London 
 El'iti'uii (0)il.)—,/iinii'Ui v 
 ■214. 
 
 Where a voter was baileil out of gud (Ui tlie 
 d.ay III' polling by ;\ frii-nd. but, acivjrdlng to the 
 ovideuee without reference to the election : — 
 Held, not an art, of bi'ibery. /'/. 
 
 See Luiiiloii I;l: liluii \(hil.)—,Iiiniiiin \. dA-/v - ; 
 iViih, I H. K. (". -214, ]). 5+7 ; X«r'h Virlorhi A'/.r- I 
 Hull (Ihiiii.) — Ciiiiii'roii v. Miirtiriiii'iii, I 11. I-;. V. 
 uS4, p. 5.>li. I 
 
 (b) 11;/ Ctiiidiilii'' ■•■■. 
 
 Tlic respondent after aniiouneing himself as a 
 candid. ite, g.avo ,S10 in two ^j.") bills to a child of 
 a voter, then three or foiii' years id.l, which hail 
 been named after him. He had two years 
 previciusly intimated that he would in ike the 
 child a iiresent; — Held, that the gift, under such 
 eircniiistanecs, was not briberj'. lih'ii^rirrii ICIic- 
 llijii [(I lit.)-- -Mr Li una a v, Cnii;/, 1 H. K. C. 8. 
 
 The rcsp, indent w hile oanvvssing had refresh- 
 ment for his man and two horse.i at a tavern for 
 part of .a d.iy and night, for ■which he [laid the 
 tavenidieeper •'ro, and next day S'> more, in all 
 810, wilhout asking for a bill. The bill would 
 have aiuountcd to about 8U. The res])ondent 
 stated that tho tavorn-ke^eper was an old friend 
 
 ferivd to her husband's vote. After the cloi' 
 tion tho nsprindent g.ivo S. >!.>0 partly by eaii- 
 eclling a debt anil partly in cash. The resiion- 
 dcnt denied that he gave S. to underscand th.at 
 ho would give him anything to induee him to 
 vote for him .''t the election : — Held, by the 
 t.'ourt of Apiical, ;illirniiiig (i Wynne, .(., that the 
 ovidi'iice shewed tli.vt an indirect olVer of nioiioy 
 or other valuable eoiisideration was made by the 
 respondent to .S., to iiiiluce him to v. do for tli>' 
 respondent. JAnc.iln Eliiihui {(hi/.) --/,'!/'.■' rl y. 
 Xirloii, 1 JL K. C. ;i91 ; 12 (J. L. J. liil.' 
 
 Tho respondent was charged with using means 
 of corruptiiui ;it hi-i ele'ctioii (I) by uiving u]i a 
 Mi i-iilUh ' 1 II. \\. ('. '' I'roniissory note and also >'1(\ to one M., on eon- 
 dition of Af. ami his sons voting for him ; tiie 
 charge depended 141011 the contr.adictory oaths of 
 M. and the reS[)ondeiit ; (2) by giving a lirge 
 subscription to an election fund, some of which 
 was ex)iendcd for illegal puriioses ; and (."j) by 
 subscripuions to cluu'clies. The respondent tie- 
 iiied any currupt motive in these snbscriiitions. 
 Tho election judge, on the evidence, lound that 
 the res[io'ident ^^•.as not personally guilty of cor- 
 rii[it practices, but he avoided the elei.'tioii on tho 
 ground of bi-ibery by agents. Siinlli llumn J.'iW- 
 thm (/'>inn,)—l!ilt'hic v. ('nn.. run, 1 JI. K. C. 
 570 ; 24 C. V. 4S8. 
 
 Per Hig.irty, (J. J. — ( 'andidates and agents 
 .should select leiiS suo()ieious seasons than elec.ion 
 times for exereisintr tli.dr hlier.diry towards 
 eharit.i'o'o and religious objects. //<. 
 
 HeM, that if gifts and subscriptions for chari- 
 table purposes, made by a candidate who is in 
 tho habit of subscribing lilierally to ch.aritable 
 purposes, are not proved to have b(;eii oirered or 
 made as an inducement to, or on condition that, 
 .any body of men, or any imlixiilual, should vote 
 or act in any 'way at an election, or on anj- ex- 
 ])ress or ini|died Yi''omiso or undeitaking that 
 such body of men, or iinlividu il, would, in con- 
 seiiuence of such gift or subscii[(tioii, vote or act 
 in re-ipect to any future election, then such gifts 
 or subscriptions are not a corrupt piraet ice, within 
 the meaning of that expression a< dediuid by tl 
 
 1^ his, an.1 was just st^irting in business, and , ^,^^, ,,^^,^^„, .,^ ^,,^^^ expresMon a. ueiiiuM i,y tue 
 tli,at he thonglit It right to pay bun as it were a | ,,„„,i„i„„ ,: 1,,^;,,,, .^,J Controverted I'llections 
 eomiiliiiient on liis lirst visit to Jus tavern, and 
 
 that he bel 
 
 ;d ho 
 
 A have done the same 
 
 'Acts, 1S74. Sniilh Unlitrh, E\,/!,„i {L).,,n.)-- 
 
 ,, . .... i. 1 r i- II 1 1 i.1 1. I Hi-'J'^'ii/ V. (I'fin, 1 il. E. C. 751 ; 3 S. C. U. (Ul. 
 
 thing it it was not election time : — Held, that 
 
 being ail isolated case in an election contest, free Held, that the settlciiicnt by ii.aymcnt of a 
 
 from profuse expeniiiture, and this luing a ipiasi- ' just debt by a candidato to an elector without 
 
 eriiniiKil trial, involving grievous results to the , any i-efereuco to the idection is not a corrupt act 
 
 lesiiondcnt if fouinl a corrupt pnietice, such pay- ! of briliery, and especially so when the eandiilate 
 
 nieiit was not — after the exiilan.itions of the | distinctly swears he never asked the elector's 
 
 respundeiit — an act of bribery. Ih. ■ supiiort, and the elector says lie never promise. 1 
 
 „,, .f r o .111 • • 1 ; it and never gave it. Jli. 
 
 ilic wife of one k5., a voter, had been injured j ° 
 
 Some years before the clectinii by the horses of | One P., some years benire the eloetion, claimed 
 
 the respondent, and in 1872 the respondent gave j that the respondent was indebted to him. but 
 
 S. coiupeiisation for the injury partly by cancel- ! the respondent denied all li.il)ility. and the dis- 
 
 ling a debt and partly in c'ash, for which -S. ; puto caused a coolness between them. One H., 
 
 signed a receipt "in full of all accounts and four months before the election, was employed 
 
r)39 
 
 ] ' A 1! LT A :M ENT a in' E r.ECTTONS. 
 
 540 
 
 «« 
 
 r 
 '€ 
 
 
 1iN r. t' ciHrct :ill(itlliT .'1 >lllt fnjlll tllc I'O- 
 
 Sjil.'ul.Mt, llllil dill CM. II. st-iltcil to I', tll.'lt IIH 
 
 ' Uv. rc'.<iiiiiiilciit « an in n l^ikmI liiiiiidiir, it would lie 
 
 a u'lH'd 'i|i]iortiinity t"^'it tl Id acciniiit settled, 
 
 and nsked I', if he wmild s\i|i]ic)rt the rcspdiidciit 
 in ciisu the old aeedniit wiis set;led. I'. re|ilii'd 
 thiit lio miudit I'viinii.-'e what lie liked. II. tiien 
 tiMilv the acenunt to the res])ondeiil, v ho loidied 
 it over and j^ave I is note for it. II. and the iv- 
 siinndent never referred to the eleet ion, nor to 
 the settlement as aU'eeliiii,' the flei'tion : — Meld, 
 that the res|)oiident hail not lieen K'^'^^.V of hriliery 
 in this transaetinii. 'lasehei'eaii and (Iwynne, 
 .T.I., donlitini; whether the trunsaetioim proveil 
 ■were not within Ihe iirohihitoi'v i>i'ovi.sions of the 
 Aet. Jl>. 
 
 The respondent owed one y\. a delit, whieh 
 liacl been dne for some lime, lie was sued for it 
 alioiit the lime of the election, and was infoi'nied 
 tliat his ojiponents were usin^' the non-paymi'nt 
 of it nj,'ainst him in the elcetion, 'I'he resjjon- 
 (lent stated he wonld not ]iay it until after the 
 election as it mi^ht aH'eet his ilection ; -llehl, 
 that the ]ironiise to pay the delit was not made 
 to jirocnre votes, lint to silence the h"stile criti- 
 cism, and was therefoi'c not lirilierv. J\'u)7/( 
 < mill nil h'liriinii (/>i,i,i.)-<;i!,lM V. iy/iifii; 1 H. 
 !•:. ('. 785. 
 
 The i'es)iondcnt had in 1873 com] ironused with 
 his creditors for "lO cents in the f!, and then 
 ju'omised to ]iay all his creditors in full. Aliout 
 the time of the election he paid one S., wlio hail 
 at the two previous elections yu)iported the op- 
 potiing candidate, a ]ii,.tion of the promisi'd 
 amount : — l I eld, under the circiniistances, the 
 payment was not lirilierv. Dninla^Eli'clhn (Out.) 
 Cunhw Ilrui/.,; I Jf. K. (', ■20r>. 
 
 Ah to the case of one J. I'\ (r., the charge was 
 that the respondent brilied him liy thi^ payment 
 of a promissory note for f>S!t. Tlio evidence 
 .sliewed that .1. 1''. <). hail lieen cauvassin;.,' for 
 respondent a lonj,' time licfore tlic note fell due, 
 and had always supported him. Jlo was on his 
 w.ay to retire his note, which was overduo or 
 falling due tha*^ day, when rcs)ioudent asked 
 liini to canvass that day, and promised to send 
 into town and have the note arranj;eil for liiui. 
 At the same time J. F. (i. was ncgotiatins:; lor a 
 loan on a nioi-ti;at;o to respondent, and it was at 
 lirst stipulated that the amount of this note 
 should lie taken out of the mortgai_'o money. 
 The agent of the resiiondeut, after the election, 
 at the request of .1. V. (',., paid the mortgage 
 money in full and allowed the matter of the note 
 to stand until .f. V. (!. could see I'espondent. J. 
 F. (i. stated that neither the unto nor the mort- 
 gage transaction inllueneed him in any way, and 
 that he had to pay the note and did not ex]icet 
 respondent to make him a present of it ; — Held, 
 that the evidence did not shew that the advance 
 of money was made in order to indueo J. F. (1. 
 to procure, or endeavour to procure the return 
 of the respondent, and was not thei-efore hrihcry 
 within the meaning of suh-s. 3 of sec. !t2 of the 
 Dominion Flections Aet, 1874. iSflkirk Elictiun 
 {J)uw.)~ yviaiij V. SmilJi, 4 8. O. li. 404. 
 
 See Haltim Ehction (Onf.) — Bussell el nl. v. 
 Bnrhcr, 1 H. ]•]. C. 283, p. 570 ; North Ontario 
 Ekrthm (Dom.)—Wliilir v. Olhli.'i, 1 H.]': 0.785, 
 p. 553; EiUrchnsw Election (Dom.) — Larue v. 
 J)cd:turiers, 5 S. C. R. 91, p. 576. 
 
 (c) Hi/ AijintH. 
 
 The admission of counsel in open court -that 
 the gi\ing of >^'l to a voti'r liy an agent of the re- 
 spondent, after such voter had voted, such voter 
 admitting that he did not know why the S'J waa 
 ;:ivcn to hini, was hriliery -at ted upon, and the 
 election avoided. Ciirlitnn Eliclimi (I hit.) —/.i/oii 
 V. J/o;//-, 1 II. i:. C. (!. 
 
 A voter who had been frcipn'ntly lined for 
 ilrnidicnness was canvassed hy ('. to vote for the 
 rcs|ionilent, and was asked hy him " how mucli 
 of that money " (p.aid in tines) "he woidd taku 
 hack anil leave towii until tli'.^ elcetion was over." 
 Counsel for the respondent admitted that (I. was 
 an agent of the respondent, and thattlu^ evideiico 
 was snlliciei '^ to avoid the election : -Meld, tliat 
 the elcclion .vas void on account of corrupt prac- 
 tices hy an agent of the resjinndent. Connnill 
 Eli'iiiun {(.Int.) — SmtziiK/ifr v. Mr/nti/rr, 1 11. K. 
 ('. 203. 
 
 One M., a carter, who voted for rospondent, 
 at the rt'()Uest of I'., the respondent's agent, car- 
 ried a \ liter live or six miles to the polling place, 
 
 I saying that ho would do so witlmut charge. 
 
 [ Some days after the election, 1'., the agent, gave 
 .M. !?'-*, intending it as eompensatinn foi' the cuii- 
 veyanccof such voter to the poll, lint M. thought 
 it was in jiaymcnt for work whieh ho had dune 
 for I', as a carter. The candidate know notliini,' 
 of tho matter : — Meld, that there was ]iriiporly 
 no p.ayiucnt by I*, to M. for any purjiose, the 
 iinmcy being given for one i>urposo and I'cccivcil 
 
 1 for another; but that if there had been, it M'as 
 niado after F. 's agency had ceased, and tliero 
 
 I was no previous hiring or promise to pay, to 
 which it could relate back. If such payment 
 had been established as a coi'ru]it practice, it 
 
 1 Would have avoided 1'. 's vote, liut not M.'s ; ami 
 it Would not have defeated the election, for it 
 
 ; was not found to have been committed with tho 
 
 j knowledge or consent of the candidate, hut the 
 
 I contrary. ISmckriUi' Elrrlinii [Out.) — Flint v. 
 Fil~..si„imoi,x, 1 ][. E. 0. 13!); 32 Q. 15. i32. 
 
 An agent of the respondent, while canvassing 
 a voter, gave S8 to tho widowed sister of the 
 voter, an old ''riend of his, who was then in re- 
 duced circumstances. The agent stated that 
 this w.as not tho first money so given, and that 
 it was in n" way connecteil with tho election;— 
 Hold, under tho circumstances, not an act of 
 bribery. Xort/i Virtnrin Election {Ont.)—Mcliae 
 V. Smith, 1 H. ]■:. 0. 252. 
 
 An offer by an agent of the respondent when 
 canvassing a voter, that he " would see him 
 another time and things would bo made right,' 
 is not an olfer of bribery, lb. 
 
 An elector when asked to vote for respondent 
 said that it would ho a day lost if he went to 
 vote, wliioh would cost him ,•?!. To which the 
 canvasser reidied : "Come out, and your^l will 
 bo all right:"— Mold, not sutlicient to estahhshn 
 cliar"c of briber}'-. Munrk Elirlion (Ont.) — Vol- 
 liar V. McCulliim, 1 H. E. O. 154. 
 
 One M., the financial agent of the petitioner, 
 agreed with a voter who had a ditForeuce with 
 the petitioner, about a right to cut timber on the 
 voter's land, to settle the matter— the voter when 
 canvassed to vote for tho petitioner referring to 
 this difference. M. signed an agreement in the 
 petitioner's name, whereby he surrendered any 
 
540 
 
 ipt'ii court -tli.it 
 
 1 .-ILlLllt of tlui I-f. 
 
 I'otcd, such Voter 
 
 wliy tliu S'J w.ia 
 
 •il ii|Miii, aiiil the 
 
 ;,,/, (ihii.)~Liioit 
 
 ui'iitly (nifil fill- 
 ti) vote fol' tliu 
 iiMi " how iiiucli 
 hi' wiiuhl take 
 '(■ti(jii wiis over." 
 illcil thutC. waa 
 
 halting uvitk'iH'o 
 Mill : -IKhl, tliat 
 
 of i'orrii|it piMc- 
 iilriit. ('•innnill 
 
 ■/>il;/iY, 1 II. K, 
 
 fof rcspomli'iit, 
 
 ciit'.s M:;uMt, I'ai'- 
 
 tho |iolHri,L; \>hw, 
 
 without i'har,;,'e. 
 
 , the Mt,'cut, ;,'ave 
 
 itioii for the ciii). 
 
 , liut M. thoiij,'ht 
 
 icli \\L' hail ihiiio 
 
 ito knew nothing' 
 
 ■I'e was lU'opiTly 
 
 my pui'iioae, the 
 
 lose anil reeeiv't'il 
 
 lad hceu, it waa 
 
 ■asc'l, and thero 
 
 iMiiso to pay, to 
 
 III' such payment 
 
 •nipt praetiee, it 
 
 mt not M.'h ; ami 
 
 lu election, fol- it 
 
 niiiittod with the 
 
 uididate, lint the 
 
 {Out.) -Hi lit V. 
 
 •-' (^ 15. i.-i-.'. 
 
 while canvassing 
 ived sister of the 
 
 w,is then ill re- 
 uiit stated that 
 
 jriveii, and that 
 li the election ; — 
 f, not an aot of 
 '( (Ont.)—McltM 
 
 respnnilcnt when 
 ' would seii him 
 1)0 made right,'' 
 
 B for respondent 
 it if 1)0 went to 
 To which the 
 and your^l will 
 Mit to establish ,l 
 thm {Out.)— Vol- 
 4. 
 
 F the petitioner, 
 (lilFcrence with 
 uittiinboron the 
 —the voter when 
 mor roforriii^' to 
 lyroeinent in the 
 iurreiulereJ any 
 
 ■)[[ 
 
 V\\UA\M'.:SV\\\\' iM-l'lf'nON.S. 
 
 51-2 
 
 el liiu to cut tiiiil) M" cx'^'pt :n lliorcin nuMitioued : 
 
 — Ili^ld, 1. 'I'liit a s in','11 I M' ot th) ri,'lit to cut 
 tiiiilnr on tlic I uids of aiiith'^r w:m a "villi ihle 
 ci)a<id.'i'atiou," within tlni ni^ iuiii„' of tlie liriliu'v 
 elimei of :L' Vi;t., o. 'Jl, O. •_'. l"h it th -. ■.'■^-nt 
 M. w'M guilty of an a"t of hi'ib'rv. Xorth i''i'- 
 t„-;i Eh-'i>'i{t)ii>.) -M'/lrf K-. S,u''i/i, 1 II. i;.(, 
 •J.-.'-', 
 
 (till! II., a votor, li il 1 a cl'iini a,'iiiiit t]\>'. w 
 sjiiiiU'iit, an I M. .an 1 ainth ;r, foi' livi y^'ir-i, 
 wliicli li'j hi I bjeii en le ivourin^' to pntjiiro pay- 
 111 'lit of. Wii in ciiivusjI at tlu tiiii i of th,: 
 el-tioii, he it it jd that if ludid !Mt;,'ot it s 'ttle I 
 h • w ml I 11 >t votj for the rosp tiidoiit. M. iii- 
 (1(130 1 tlu i'.!<|) 111 I Jilt t ) .(i\'o his pr.) nis4')ry n itj 
 til It. for tli'j debt, bat did not 1,'ivi; til! re>|) in- 
 iliMt to nil Ln'stind ilirji:tly or indirejtly tliit 
 tlu irit ' li I 1 ii'iytliiii^ to do with the election; 
 
 — He'll, I. 'I'liit it in alwiy.i op !n to eiiiiuire, 
 uiiiliir utitiitM siinilu' ti th'3 Kleitio'i .Vet-), 
 \v:iu',li';r the debt wis piid in ai!Mrliii;.i with 
 the le.,'il olili'^' itioii to p ly it, or in order to in- 
 duce the votsr ti vote or r.ifrain friim votin,'. 
 'J. (allirniin.; \Vilson, .1.) 'I'll it on the ovidenee, 
 t!ij in itive whi''!i inlu.'el M. wa< th it of pro- 
 curing' tlu votjr l[. to vit; .at th;; ele ition, and 
 tint thereby an aet of bribiry w h co'imiitte I by 
 .M. as su :li a;,'''iit, which .avoid 'I the oleetion, 
 X.,rtli Oa'.ii'hi I-J'^-liofi (On:.) -.UcCt^kiU v. Pa.<:- 
 ton, 1 M. M C. .'iOt. 
 
 Oac L.. ii tiverii koipar, w.n toM by fl., one 
 
 of rL'-ip indent's euivm.'i's, tint li ; tlio'U'ht \,. 
 eiuM '^''t^ilS or S'O fr.nn •'., if be would stiy at 
 lio'iio duriiii; the election. \,. expected that the 
 in iiU'V would be spent at his tiverii, and slliWed 
 tint he dill not know what was intended. Xeitli- 
 H' If nor I', were exa'.ninel :— Held, on the ovi- 
 <li"i • ■, there w,is no actii il olfn' t ) brib.!. X'H'lli 
 ]"'■' ti-hl /■J/''cti'iii ( /) ml.) —(,iliil"r,)il V. ^[lU^lcHlllHl, 
 
 1 II. E. (J. ur.'. 
 
 Bribery is not coiilined to the actual ^'ivin,' of 
 inoiiej'. Wlicre a gros-ily iiia le.piate price has 
 h'liii paid lor work or for an article, it is clearly 
 liriiiery. A large .sum of money, ,avera;,'iii;,' ^\\ 
 pia' heal, had lujn sjiont by tw.i of the a^'eiits 
 of tile res|)iiiideut, and moii-.^y h id lieeii ;^ivcn b • 
 them to [lart'es without any instruetiom ; — -I [eld, 
 tint where such mo:iev had been applied iiiipro- 
 lic!i'ly, ic iiiiHt bo coiisiilered th it it was inteii led 
 1 1 li J .so applied, diirnir ill /■Jl.'r'l ,,i { /) mi.) ~.'ir'r- 
 Uhi V. MnoJonall, 1 II. K. 0. 547; 10 (J. L. .1. .Sl.l. 
 
 The ayjiit O. oiuployod one \V. to yo with him 
 on the oveniiiL,' before the oleetion to several 
 eleotors, from whom both ( '. and \V. made colour- 
 able imrchases, but with the corrupt intention 
 of iiiduciiiL,' the persons from whom the imrchases 
 were inado to vote or refrain from voting at the 
 election:— Hold, that C. and W . wore guilty of 
 bribery, and that the election was avoided in 
 coiisenuence of their corrupt acts. Cornwrtll 
 Ektihin (3) {Dom.)—Mach>nnan v. /iiiyiii, 1 II.l']. 
 C. 803. 
 
 (d) Evidence. 
 
 Onrrnlh/.]—Vor Mo.ss, C. J. — Prima facie cor- 
 rupt practices avoid an election : and the onus of 
 proiif that they are not sulHcient to affect the 
 majorityof votes rests upon the regpoudeiit. Wi'xt 
 H,i.'<Hn!i.i Election (2) {()nl.)-lLjl(hii v. llob-rtson, 
 1 H. E. C. 539. 
 
 Wiure a e!i vrg 1 of bribery is only the iiirvj- 
 ccjitt! I olFerof a brib •, the evidence iiinst b s inoro 
 ex I it than th it reipiirod to prove a bribe aetii- 
 allv given or i ' ■ "if- • I. .s' i i''i Ir^ii b]''',-li'iii {On'. ) 
 
 'ffiiiil'-r V. L'lii/n; I H.K.C;. ,VJ;'8(J. L. .1. 17. 
 
 Where tli3 (!vi dene '. as to brib iry consists of 
 : olTers or prop'isals to bribe, the evidence .should 
 be str inger tli in with respiet t ) a tnal bribery. 
 Where three voters swore to three sep irate otferj 
 of brib.iry in id j to o i 'h of tlieni sep irately by nil 
 agent of the resp indent, wiiieli such ag ait sworu 
 Were never mi lo by liini : —Held, tint the evi- 
 deiico was n it su li liont to justify the s 'ttiiig 
 aside of the election. Tlie lan,'ii igj of .Martin, 
 15., ill the Wigancise (1 O'M. ,t l[., IDJi, adopt- 
 ed as a gen u'al rule appli i able to tlii.s case. En' 
 Tim'i /•J''i-'i)u (On*.) —Il'iiiu'-'i v. (Jim r in, 1 
 IL. K. (J. 70. 
 
 Wiisre a c 111 li lite in go, id f.iith iiitenled th it 
 his ideetioa should be eo'idil ^t id 1 g illy, and ll l I 
 printel an 1 eirenlatel throughout the coiistitn- 
 eney a synopsis of the now law ai to corrupt 
 prictices, ai I ll 1 1 c iiisj I an editori.il .irtiel i to 
 b J printed in a newsp i|)or, and li id taken trouble 
 ti hive the law e\pl lineil to tlio electors. — Ifeld, 
 th it altlioiigii 111 my of the a/ts done during the 
 olietioii ereited doubt an 1 he-iitition in the 
 iiiind of the ,jn Ige, yet as the return of a mciu- 
 ber ought not to be lightly set aside, the judge 
 ought to b.'. satislied that the acts done were done 
 to iiilliieiiee the electors an 1 .so done corruptly, 
 and this election w.is iiplioM. \Vi<t Toronto EW,- 
 tiin {O.I'.) -^.Imn/i >nj v. f'/'o, ',•,■, I If, H. ('. !I7. 
 
 Where (ivideiu'e of an act of ki!C]iing open his 
 tavern on p illiiig days and selling liipior therein 
 as usual, by I'., an agent of the )> 'titioner, eaiiio 
 out on cross-examination, and during the argu- 
 ment the evidciiee was objected to because the 
 charge was not in the pirticnlars, tiie case w.is 
 nit i!onsidered. Xortli Vn-ioi-ii Fj'i'cthn (Out.) — 
 .\r'Iii' V. Snv'h, 1 H. l']. c. -iryi. 
 
 The cvid !iico respecting a charge of bribery, 
 by [iiyment of a ilis[iuteil debt, w,is held insu.li- 
 cieiit tusust liii the charge. Ih. 
 
 On a oh irgo that one O. bribed a voter I)y pro- 
 mising liiiii to pro euro a ileo 1 of his land for 
 him if hi would procure votes lor the respon- 
 dent : — Held, on the eviilcnce, that tlioiigli the 
 voter had so represented,, the iirosnring of the 
 deed had nothing to do witii the election. Solu- 
 ble, tint (). was not an agent for whose acts the 
 respondent was responsible. Xorlli, .\ri(llli'.i('x 
 E'-rt; >n [Out.]— Oani" roil v. .UrDowjalt, 1 H. E. 
 C. 37(;. 
 
 A witness stated tint lie had received a letter 
 from a voter, askin.? f'>r the fnltilment of an offer 
 as to his vote, but the letter was not produced : — 
 Held, that it was not proved that the letter in 
 ([iiestiou was written liy the voter referreil to. 
 Ih. 
 
 One S. an alleged agent of the respondent, 
 niide offers of .sheepskins to two voters as to 
 their votes at the election, bat be swore the otlors 
 were made in jest ; but as the evidence did not 
 show that S. was an agent of the respondent at 
 the time of the alleged offers, iioeirect was given 
 to the charge, /h. 
 
 A statement that an offer to bril)3 was mule 
 in jest should be received with great suapioioa ; 
 
r.i: 
 
 l'Al;l lA.MKNTAliV K! lii 'll(>NS. 
 
 544 
 
 C 
 
 r- 
 
 !:. 
 
 3i 
 
 ;i lii'il ( I' tii.iy iii.iki' nil dill r wliiili lie inti iidv 
 kIiimiM liitiiKdi ^( iiiii|v|y, mill tliin, it iii>l nr- 
 ir|<ti il, III iiiiiy iiXHiil il NMiH in:. ill' ill ji'sl, II', 
 
 A I'II'IIiIm to \Mj|I« IiiI II Mitll, lllnlll' willliUt 
 
 I'i'lt It III )' |i> liir ( il I lii'ii mill UK ujiil^t, iii'l i\i 
 ill III! (.' Ill ilii ly. 1 1 II 1 1 1, 1, l.iiiiiiiii (Ih III.}— I'll ■- 
 
 II III. V. Mii'iiiiii/, I II. I'., r. T'i'i. 
 
 'I'lic II wj mull lit, ill il ( niistiliii III y wliind-lL 
 I uiMii;-. Mil 11 1, K 1 1 i\> il 'lH'i Villi N.liiHi l.i^» I liiiimi 
 
 «'X|lllil(H Wllf IlliliMt V-, ()<•<•. 'J ill' llllilil y \MIH lu- 
 ll ii.'-ti i! Iiy till n H| iiiiili lit tiKiiH i'',,\\ itiiiiriiiiliiiii 
 til m-i tiial il \MiM iiM'i I'll' iiiwtiil lui'i ihiis I Illy. 
 A III '111 .'jl.'Jt.liiil tlii.' iiK my \\ a. pi\ui l.y (i. tiujiiu 
 
 W ., Wllll lilltlil.llU ll it tl) H( Vll.ii \t IHMIK ill milllH 
 
 III' .MO, ■'?ItiO. >^~W iiiiil .'^•J.'it). N<i ill' tiiii liciiMiiM 
 tiu'A) ( iiililuir Will j^ivi II iiy (i. til \\ ..III' l.y \V. 
 
 III till |>( I'M. II.-- miMitiL.t mIihIii 111: lli^tlillll(lll till' 
 liming ; mill l.y tiir latti r .--fvi riil lu-K i.f l.ril'i ry 
 win: nillilliittiil. 'I 111' li'^lnpliili lit ):lililii'ly mill 
 
 I ii\iiti ly ilii-'iliiiiiu il miy iiiiintimi it sum timiinj.' 
 mij illi;!iil i xn iiilitiiii ; liiit inmli: im iiii|iiiii(M 
 lll'ti I' tin: l.'li'itHli II.S to liiiW tin: lliiility llini lilHIl 
 H|'l'llt lllllii 11 Villi 111' tWIl lilllilC tliC I'llClillll 
 
 liiiil. Ill' ill iiinl miv net iif briliLiy, ilircit nr 
 iiiilii'i'i I, III' any luuA\liil;.i tlitliol ; mnl im ) I'm if 
 WHS j.'i\iiiiii iiiiiMiiiil ktiii\\li'tl|.'U on lii.-< ] mt 
 I f liny lit till' H|ii I ilit vroiij'tiil iii ts or jiiiyim iil^ 
 
 lildMil to IiUM: lull tolliliiilltll liy pilll.'ui 
 illll^n;.•^t wl.'iii liisliuil.iy liiiil Imli ili.^tiiliiittil: 
 — IKliI, 'I lint lluiUi" till inuiliai' (ill iiiii.'-ti niiiK 
 of till' ri'.-i inili lit s I'liiivas-H, mid on ii review of 
 tlii'vliiiM' i\iiiiiu«', till' n Hi'i'iiili iit's iiniiliiif il- 
 ili'liiai I'l aii^\ tiilini't. liiotivi' or iiitiiitioii slmiilil 
 1)1) turll.tiii. yh ijinil Klirliii' [I'll,,.]- lu'iul: 
 
 avi\. riiiw!; 1 II. ]■:.('. ncs; km'.i..,!. ;!!7. 
 
 IIilil, tliat till! lu'i'soiiH aiiioii;/-^t vliciii tin. rr- 
 3]i(iii(lfiit's iiioiiiys liiiil liri'ii ili.itiilmti it liy A\'., 
 mill jiirNiilis UL'liii;; iiinlir tin lii,\M ri, Kllli-ii-i litsof 
 ri'i-iiciHli lit. mill tliattlii.ir ciniuiii ni'lB iisoiilnl 
 tliii tliitiiiii. ^iinl'k', that no limit can lie 
 |ilaitil to till liiiniliiii of iiintiL-^ tliroii'-li wlinni 
 tin; siili-a-i'iity niiiy cxtuliil. /''. 
 
 Monty liail Inn ii i;ti il utiil 1 y tliii rii-pon- 
 ili II) aiu'l l.y l.i.s fliuiil.-i for till' I'Uiimii.s lit tlii' 
 ilii;lii.ii, wiiiili liailljiiii jil.iiLii ill till; limiilH of 
 oiiu C^, a piistiiial mill iioliiitul liiiiul of msiioii 
 ix'iit, who ga\c it ^\jl].ollt any ii;istiuilionH or 
 Miuiiin^H to .siiili ci.n.miltiL-niin us aijilicil for 
 II. A j;i'i'at dial of thiH liinnuy va.-s hji-iit in 
 ri.riiqit i.iiiioi-i'^, in liiiliiay, and in trtutin,!.' to 
 the I'xt lilt 111 a\ nidi 11^ the ell it ion. The let] ion- 
 dent ill liis eviiliiiie stiitid that he diil not, 
 direetly or indireetly, aiitlioii/e or aj.iirove of or 
 sanetiiiii the ex|iinditiiii' ol any nioiiiy for hiili- 
 ery, or a ]ii'iinii.'<i' of any for .siu h ]iui']ii .sc, nor 
 did he Minetion or iiutlioii/e the keiiiiiij^ of any 
 open houi-e, and that he was nutavM.re that any 
 open hon.M s had heeii ke\it, and that he always 
 imiiiissed on every Imdy that they must not vio- 
 late tlie law. '.I here wa.s no ull.iiiuitive evideiiee 
 to shew that the nioiiiy vliieli the respondent 
 knew had been rai.-ed for the piirjm.ses of the 
 eleetii.n was so lar^e that as ii rea.sonaMe man he 
 must have known that si.nie piiitiin of it would 
 he used for eoirupt piiiposes :■ - Held, Wv.'-. look- 
 ing at the whole ease, mid at thi.-j lii-i'^ li of it, 
 as a penal pimeidin^', the ies).oniler t si ould not 
 l.c held peiMiiially respmisihlu foi tlie corrupt 
 jiiaetiees ol h s agents. K'oiijKlun Klivl'ii.ii (Jtom.) 
 —Nliiniit V. iMdaloiiiiliI, 1 Jl. V-. C. U'J.") ; 11 C. 
 
 L. J. ly. 
 
 I!\ ideliee of eoiinpt piint in ii eoinn il led l\ 
 I I IM'iiH ill the ilitl'll I t ol iiotll r III I ilia III- III I l.'r 
 plevioiiK. eleelinii, may he j;i\i'Ji lit the tiiil i>| 
 
 I he Ml mid pi tition, w itii the view ol Kti ikiie: oil 
 the Villi H of liny hihIi jui'MinN who niav have 
 \i lid at the Mioiid ehitimi. I'cii null )j'i,/ii.i, 
 I'Ji ii'i iii.]--J!iriiiii \. 2liiiih>,ulil, I ll.LC. (MTj 
 
 II c. I.. .1. M. 
 
 'I III II -pi iii'i lit eat vii>."i'il n voter, vhu iit the 
 tiiiil swore that ultir lie hml a^riid to vote 
 for him, tlu' n.-ipoiiilent pl■^lnn^'ed toi.ivellie 
 volir M me \m i Ii ; the ni|Midiiif iliimd the 
 ]ili mine :- Held, iiltlioiif;li the Voter iijpi and to 
 lie II tiiitlifiil wiiiii"- mid waN not shaken mi 
 criss-examiiialion, that the promise ol employ. 
 Ilillit Was iiot miidi' out heyolid all li ason.'il je 
 doiilil, Siiiili i'liliii'iii r.liiiioii (IJi III,)-- (I'iUiM 
 
 V. ii/,-/i/', 1 11. i:. f. ibo, 
 
 A chai>;e that the n .-^pi.i'di nt jin iiii.-i i! to^l\e 
 il VI. tl I ei 1 t.iiii will kloilo il he Mil III lor him, wun 
 disprovi d hy the evideiuc of the n spondent mnl 
 another, and hy the iidmisHionHof the \otei innije 
 tl) other [larties. lliillnii Eluiiun {hum.)- ('rum 
 V. Jlr('miii li, 1 II. li. ('. 7o(). 
 
 'I he iliai;.'!' a;.;rin;-t the le.-pMiilelit and one II,, 
 oimielUr ol iiioiiey to, and to )ioeiiie all ii|i- 
 pointmeiit as ju.^tii c of the peace for, a voter in 
 eoiisideiatii 11 of his votili;.; lor the le.-^] ondeiit, 
 wasmiipoiud hy the eviileiiee of the voter wlm 
 hliewiil hiltir Inslility to I!. ; hut the ehiii;;e 
 v, as denied hy the resioiideiit. The evideine 
 shi.wiig the stiifiniilit to le inijnohalile, and 
 that the eleilii.u eoiiti st was i allied en hy the 
 nsiondii.t x\illi a Biiiipulous iiiid hiiiie.s't en- 
 deavoiir to avoid any violation of the liiv\- a<^aiiist 
 eoiiiipt practices, the chari^e was dismi.'-bed. Jli, 
 
 A eliai'j.'0 against an a;.ent of the resiiondeiit, 
 that he had |loiiil.icd to |ii(,<iiie the otiicc of 
 police miij;i,-.trale tor olii; \\ ., wa.s denied hy the 
 ii;.;eiit of the respondent; aiitl it furtlu r ap[iiai'- 
 in^' that \\ . had aeied on tlio eoininiltee, and 
 Voted, lor the oiij'osin^' candidate, the ehaij^e 
 v\as dismiased. iSoiilli fiiilnr'n, Llniiun (J)uiii.) — 
 MiKiii) V. (.'/i)i, 1 11. !•;. C. Tol. 
 
 (JiiliiliiihiiJ L'riili iii'i:\ — \\ hi re the evidence as 
 to the oiler of brihts was eoiitraiiiutoiy, and the 
 ]>alties making ehar^es of hiiheiy a]ipeaied to 
 jiave horiie indilieieiit eharacters : — lield, that 
 the oiler of hrihes was not Katisfactmily estah- 
 lished. Wi'llinnl I.iul'aiii, {(Jul.) — Jiiidimr v. 
 Ciin-ir, 1 11. !•;. f. 167. 
 
 Where one party alliriiied and the other parly 
 denied a eorriipt oiler hetwi en them as to voting 
 for the rc-:)iiiiident : — Held, that the oiler was 
 
 ' not suliieeiitlv jiroved. Dinnla.i KIu'IIdii {Out,] — 
 
 |CW.'V. liroihi; 1 ll.i;.C. HO.-.. 
 
 ^Vheie in evidence of oilers of hiiliery, an as- 
 
 j sertiun on one side is met hy ii coiitradietioii on 
 
 I the other, the iincorrohoiated asseition is not 
 
 I Mit.Iicient to sustain the elimge. Il'(,,v /'r,i rlioru' 
 
 Eln-rii„i( <lii/.)~S<-ii/l v. Co.i; 1 11. \:, V. -III. 
 
 A cli.'irj^e of hriliery against the respondent, 
 j where the evidence v\as iinsati-,lactiiiy and re- 
 ! pugnant in itself, and rested more on siispieiuii 
 ' than on clear positive jirool, v\ as held not jiroven. 
 I \iirlli (hihiriii J'JIic/ioii ((Jul) — JJci.'a.ikill v. I'li.i- 
 I tvii, 1 11. E. C. 304. 
 
Ml 
 
 I'dllili idcil I \ 
 liiiiilidi s III I l,i' 
 lit till' (lii 1 ii| 
 ' I'l Ktiikiii.i: Kit 
 inIiii limy lia\r 
 
 // rnll j.\',,/i,.„ 
 
 , I U.W.V.Mr, 
 It r, wlio at (III- 
 
 Ifl'Kcl (ll Mitt! 
 Ill til J.;i\0 tliu 
 lit llllllul lliu 
 ti:l' lljlK mill to 
 lilt Klltlkcll Ml 
 
 iit<o ol < iiijiliiy. 
 nil uiisi.iialijo 
 {li< iii.j-- (.';/,/« 
 
 I'l llii; ( i! (i) ^i\ 
 
 Lil fur liiiii, WiiH 
 I't Kl>iiiiilciit mill 
 till! vdtei iiiuili' 
 
 {Jh,)il,)- ( 'runs 
 
 I'lit ami (iiio n,, 
 j iiaiiii; ail iiji- 
 1(11', II vdti'i' ill 
 
 lie l(Jr) lllMk'llt, 
 
 i' tliL' \'()ttr \\lii) 
 lilt flu; i^liiii';.;!.' 
 'rlir I'Viilrim; 
 ijin.liiilik', ami 
 lidl (.11 liy till; 
 iiiil liiilK-.st en- 
 llic law a<;aiii.',t 
 (lisiui.'-iifd. //). 
 
 Ill; icKiidiiiliiit, 
 
 (J lilL' (lliitU dl' 
 
 ilciiii;il liy till' 
 riiillu'i' (ip[itiir- 
 •(.luiiiillft;, ami 
 to, till; uliaigf 
 vliun (l)oui.)— 
 
 tilt' uviilcnce m 
 iutdiy, and the 
 y u]iiii';ui'il to 
 i ;— iiuld, that 
 fautdiily t'Blal)- 
 ) — Jliif/incr V. 
 
 the (itliL'i- pally 
 
 ■111 as t(i viitiiiL; 
 
 tlio nll'i'i' \\as 
 
 Uidioii [Out.]— 
 
 liiilicry, an as- 
 'iitiadiijtiiiii (111 
 hwiitioii is nut 
 W'ist /'rin-lxii-u' 
 
 . i:. c. 211. 
 
 llU I'l'Spollllcllt, 
 
 laL'toiy and n;- 
 i" (Ml siispiciiiii 
 old nut jirovoii. 
 Viidill V. I'll.'- 
 
 r>45 
 
 rAKIJAMKKTAKY VAA'A TIuNS. 
 
 546 
 
 'J lie ic>i'cii(I(iit ■wim I Iiiuili « it ll n M ml lu tn 
 (if ciirnipt pinctioc. Kiioli mpaiiito cliiiigo wiih 
 Mippi'i ti ll l>y till' ovidini'o III I'Mc ^^itll^HH, and 
 \MiH dl nil d III' i'X]ilain( d liy tlio li hpi'lidi nt. '1 lie 
 liiiMitd jnilj;r tryini,' Ilic potitimi- llild, tliutif 
 (lull CUM' slued liy ilHcIf, (uitli iij.'iiiiist until, mid 
 cicli wiliHKM ('(pially cicdililc, and tlicir lioinj,' 
 nil I'dllati'iiil lircmiihtanciH citlior «ay, lie \\diild 
 liiiV(; Idiind lliat ciioli caKo \\i\» nut pidvid ; Kiit 
 iiH I'lioli (■liaise wiiM pKivi'd hy a ok iliMo witiui-s, 
 tlio unitod \M'ij;lit df llioir t( Ktiiiiuiiy dvi roanio 
 till' ollict df tlio roN|idndont'H donial ; and cii tlio 
 01 Miliinod toHtlnumy of all tlio uitnoi-NOH, lie liild 
 till; Hi'|)ai'uti' cliarjioH priivod ajjaiiiKt tlio roHpuii- 
 dent ;— Hold liy tlio funrt df Appoal (lovoiKinj,' 
 WiJKdii, ll.), that in olootidii oii^oh, oiioli oliai';;i' 
 i'iin><titiitoN in olloct ti Koparato indiitniont, and 
 if u jiiiIjlO on tlio ovidoiico in niio o;i.so dihniisM'H 
 tlio oliargt', tlio ioH]idniliiit oaniiiit ho iihiood in 
 a Wdi'Ho pdHitidii lii'oaiiMi' a iimiilioi' (if cliarjjjosarc 
 advanood, in oacli nf « liioli tlio jii(lj,'o anivoH at 
 a similar cdniliisidii, and tliiiofino tlio soparato i 
 ohar^oM alidvo roloircd td were hold nut siistuini;d. ' 
 Mitdi>L-ii Klicli„H (Ihil.)-'Shn-fiill v. Milhr, 1 M. I 
 K. I'. iriH; I'JC. I.. .1. I'.i:!. \ 
 
 'I'lii; roHpondeiit waH ohaigod with odriii|it 
 practicoK, in that, wlion oanvai-niiig niiu ('., a 
 viitor wild waid Ik; wuiild nut Mdo iiiiloss ho was 
 paid, ho said lio was nut in li jidsition tdjiay liiiii 
 anything, but that if ( '. wniild suppdit liini, uiio 
 (if his (tho ros]i(iiiilont's) fiionds wmild ounK; and 
 iifo al out it. 'I ho los] (iiidont a.s In; was loaviiig 
 tlio vutor's liunso, mot imo K., asupiiuitor, wiiu, 
 aftir sumo odnvoi>atiuii, avi nt intdl'.'s Ikiuso and 
 gavo liim .■jji") td Vdto fur tlio lospiiinli nt, Tho 
 oliargo dopondod u) dii tho ovidoiii .; uf tho Vdtor 
 ('. and liis wifo. 'Ilio rospundont doniod making 
 sirIi ii pi(imi.'-o ; and lio wassustainod liy K. jih 
 to ii ounvorsatiun dutsido ('.'a liunso, in w liioli 
 tlio rospdndoiit omitionod K. nut tugivodr pru- 
 niiso (_'. any nionoy. 'I'lio (;lootiun jiidgo un tho 
 ovidonoo Idund that tho rospdndoiit w as iidt por- 
 BdiiuUy implioatod in tho luilioiy df tliu votor V. 
 liy K. I'dilrc \\'< ll'iiiiiliiii Klictioii (DliIh.) — Irvii- 
 »idt V. OrUiii, 1 IJ. K. I'. 071). 
 
 Before an olootioii judge finds a rcspondont 
 or any otlior jioisdn gudty of a odirupt prac- 
 tice involving a porsoiial disaliility, ho ought to 
 he fioe from roasoiiable doubt. Jli. 
 
 A nuinbor of sopaiato charges of currupt prac- 
 tices against an agent of the rospdndont, based 
 iipiin oilers or proinises, and licit upon any act of j 
 such agent, each of whicli depended upon the f 
 oath ol a witness to the ofl'or or promise, but 
 each one df which sueli agent directly contra- I 
 dieted, or gave a diflerent colour to tlie language, I 
 ora iliHereiit turn to the expressions used, which < 
 (juite altered tlie meaning of theodnversatidii, nr i 
 constitutoil iu efl'ect a complete or substantial ; 
 denial of the charges attempted to be proved 
 against such agent : — Held. 1. That although in 
 actirg on such eonflictin^; testimony, whore there 
 was a separate opposing witness in each case to 
 the testimony of the witness supporting the ' 
 charge, the election judge might be obliged to j 
 liold each charge as answered and repelled by i 
 the counter evidence, he could not give the like ' 
 etleet to the testimony of the same witness iu j 
 caeh of the cases where the only opposing wit- j 
 iiess is confronted by the adverse testimony of a , 
 number of witnesses, who, tliough they tin not 
 corroborate one another by speaking to the same • 
 
 35 ' 
 
 matter, are eontrudioted in oiich c«hu by the one 
 wiliioss, 'J. 'I'liat tin; nioio fMi|iuiitly u «it- 
 IK SH is Cdlitllidictod by dtliolH, iilllidllgh oacli 
 iip|idsiiig \\itiii.HS cdiitiadiotH him dii a .single 
 point, the nidlo is cdiilidolico ill such MitnrSH 
 allocted, until, by a niimber nf contiadicting 
 witnihKOM, ho may bo disboliivod altdgothor. 
 'A. That ai'tiiig nn the abuve, and (in aeoiihidora 
 tiun wilt 11k r the story tuld by the witiiossin 
 Mijipdi t of tin; charge is roiiMinablo or pinliiiblc 
 in ilsolf, the chaigos of cdiiiiiit piai tiies against 
 the agent df the rosiidiiilt lit, set iiiit in tho jinlg 
 iiieiit, wore ]inivod. Surlli I!, iij'n ir Kluiinik 
 (l)iaii.)- W'hili V. Miindij, 1 il. I',. ('. 710. 
 
 (barges against tho ie;-iiundeiit, that he bail 
 piuiiiised an ullice to tho sun uf a Vdter, and a 
 
 cdlitiaet to the vut 
 'ly other i;viilenc(', 
 
 limsolf, weio cdiitnidictod 
 
 uid disiiiisiil. Siiiil/i (hi/iirii) 
 
 Khrt'iut, (Dinii.) - M<K,ni v. dim, 1 II. E, (.'. 
 
 7")i J ;»s. c. |{. (ir.i. 
 
 ;?. Trralh,;/. 
 
 (a) <•'( III I'll III/, 
 
 'J'roatiiig at an tloctidii, in inder to be criminal, 
 mii.>it bo ddiio conuiitly, and fur the purpuse of 
 eoii'iiptly iiilluoiicing tho \oter. Smil/i Sinjulk 
 Eh 1 1 i, III (/tiiiii.)- JJn-iiir V. II ((//(/(", 1 Jl.E.C.iiliO. 
 
 Treating is not per ho a corrupt act, except 
 whin sd niatle by statute; but the intent of the 
 [larty treating m.'iy make it so, and the intent 
 must bo judged by all the oiicumstanees by 
 which it is attondeti. North Mklitlimx Elu-liun 
 {(.hit.)— (.'mill roll V. JlrlJuin/til/, 1 11. E. (J. 37li; 
 I'.'C. L. J. 14. 
 
 Where a charge of a corrupt intent in treating 
 is made, the evidence must satisfy the judge, be- 
 ydiid rcasunable doubt, that tho treating was in- 
 toiidetl directly tn iiillucnce the election, and to 
 produce all olloct upon the electurs, and was so 
 done with a corrupt intent, ilkinjarnj Eluiiun 
 ((Jnl.)—Mi:LthHun v. Vnihi, 1 H, E. C. 8. 
 
 llcasonable refrcshnicuts furnibhed bona tide 
 to committees promoting the election are not 
 illegal. Suiitli O'rcy Elccliun {Out.) — /-liuitcr v. 
 Laiahr, 1 11. E. C. uL'; « C. E. J., 17. 
 
 Treating, when done in compliance with a cus- 
 tom prevalent in the country and without any 
 corrupt intent, will not avoid an election. IIV/- 
 Itiiid Eltcthm (Out.) — JJcal/yv. Ctirrie, 1 H. E. C. 
 17. 
 
 The general practice which prevails here of 
 persons drinking in a friendly way when tliey 
 mect, would retiuire strong evidence of the pro- 
 fuse expenditure of money in drinking, to induce 
 a judge to say it was corruptly done, so as to 
 make it bribery or treating at common law. 
 Kiiiijutoii Elut'wn {Di.'iii.) — Stiviirt v. Macdomddt 
 1 11. E. C. 025; 11 C. L. J. 1<J. 
 
 (b) By (.\indidati-it. 
 
 The treating of i)ei'sons by the candidate at a 
 tavern during his canvass — Hehl, under the evi- 
 dence, not to be a treatiiig|df electors with cor- 
 rupt motives. Luiidon Elictiuii ((Jut.) — Juriiian 
 v. Mdidith, 1 H. E. t'. 214. 
 
547 
 
 PARLIAMENTARY ELECTIONS. 
 
 548 
 
 
 
 Abfiiit an liour after a meetinj^of a few friemls 
 of the rospoiiduiit at a tavern, one of their num- 
 ber was sent some distance to buy oj'stLTs for 
 tlieir own refreshment, of wliich the parties and 
 others partook. Tlie foHowing day a friend of 
 the respondent treated at a tavern, and not hav- 
 ing eliaiige, tlie respondent gave him 25 ecnts to 
 pay for the treat : — Hehl, not to be corrupt treat- 
 ing, nor a violation of 3(5 Vict., c. 2, s. 2, 0. 
 Williiml EhdhiH (Out.) — Bitchne.r v. Carrie, 1 
 H. ]-:. C. 187. 
 
 Semble, where treating is done by a candidate 
 in order to make for himself a reputation for 
 good fcdlowship and hospitality, and thereby to 
 influence electors to vote for him, it is a species 
 of bribery which W(mld avoid his election at 
 common law. Xorth Mlildlc^'x Eli-rtinn ((Jul.) 
 —ramcroii v. MeDmi'jall, 1 H.E.C. 37(J; 12 C. 
 L.J. 14. 
 
 AVhen the respondent who, in the course of 
 his business as a drover, had been in the habit 
 of treating at taverns, treated during his canvass, 
 but to a less extont than was his hal)it, and not 
 apparently for the purpose of ingratiating him- 
 self with the electors : — Held, under the circum- 
 stances, that such treating was not corrupt, and 
 his election was not avoided. lb. 
 
 See GhiKinrni E/crlion (Out.) — McLennan H nl 
 V. Craii/ ('in/.,' I H. E.C.8, ^. 548 ; Dunda^ Ehv 
 turn (Out.)— Cook V. Broder, I H.E.C. 205, p. 549- 
 
 (c) By A<jent!>. 
 
 The furnishing of refreshment to voters by an 
 agent of a candidate, without the knowledge or 
 consent of the candidate and against his will, 
 will not be sulHeient ground to set aside an 
 election, unless done corruptly or with intent to 
 inlluenoe voters. Eatt Toronto El irl ion (Ont.) — 
 Jieiinivk v. Cameron, 1 H.E.C. 70; 8 C.L.J. 11.3. 
 
 Whc:'e the object of an agent in treating is to 
 gain popularity for himself, and not with any 
 view of advancing the interest of his employers, 
 such treating is not bribery. Ih. 
 
 One F., an agent of the respondent, on the day 
 of the nomination of c.mdidates to contest the 
 election, and while the speaking was going on, 
 treated a large number of persons at a tavern 
 across the street from the place of the nomina- 
 tion, for which he paid §7 or §8 : — Hold a cor- 
 rupt practice by an agent of the respondent, 
 which avoided the election. Dunddn Election 
 (Ont.)— Cook \. Broder, 1 H. E. C. 205. 
 
 K., an agent, while canvassing a voter in Ward 
 No. 6, gave him money to get beer, for which 
 the voter paid a lesser sum, and as the voter was 
 poor, told him to keep the change : — Held, un- 
 der the circumstances, not an act of bribery. 
 London Election (Ont.) — Jar man v. Meredith, 1 
 H. E. C. 214. 
 
 One D., who had been a candidate for various 
 offices for twenty years prior to the election in 
 question, and had freely employed treating as an 
 element in his canvassing, became an agent of 
 the respondent, and treated extensively, as was 
 his common practice, during the election. The 
 respondent was aware of D. 's practices, and once 
 in the early part of the canvass, cautioned D. as 
 to his treating, but never repudiated him as his 
 
 agent :— Hold, on the evidence, that as D. did 
 no more in the way of treating during the elec- 
 tion than he had done on former occasions, and 
 had employed treating as he ordinarily diil as 
 his argument, and had not used it as a mjan:? of 
 corruptly inllucncing the electors, he was not 
 guilty of a corrupt practice. End E/i/in Elec- 
 tion (Dom.)—Bluev. Arkell, 1 H. E. C. !&.). 
 
 Semble, the treating proved in this case, if 
 practised by one not theretofore gi\'en to sm !i 
 practice, would have been siitBcieut tohavcavcid- 
 ed the election. Ih. 
 
 Observation on the law as it now 8tau<ls, as 
 holding out inducements to candidates to employ 
 men who are habitual drinkers t.) canvass by 
 systematic treating, and thus cause electioneering 
 to depend upon popularity aroused by treating, 
 rather than the merits of the candidates, or the 
 measures they advocate. lb. 
 
 One M. canvassed a voter on polling day, and 
 urged him to vote for the respondent, and, while 
 canvassing, treated the voter four times ; the 
 voter then went and voted : — Held, that the 
 treating was for the purpose of corruptly iu- 
 duenciug the voter to vote or refrain f. jin voting 
 at the election. Xorth Ontario Election (Doni.) — 
 Gihb.'^y. Wheler, 1 H. E. C. 785. 
 
 A scrutineer for the respondent had some 
 whiskey with iiim on polling day, and treated the 
 deputy returning officer, poll clerk, and another 
 in the polling station:— Held, not a corrupt 
 practice. lb. 
 
 See also Sub-head (e) infra. 
 
 (d) Bi/ Other Person-'^. 
 
 The giving of free dinners to a number of elec- 
 tors who had come a long distance in severe win- 
 ter weather, in the absence of evidence that it 
 \vas done for the purpose of influencing the elec- 
 tion either by voting or not voting, or that such 
 electors voted, was not a corrupt act. North Vic- 
 toria Election (2) (Dam.)— Cameron v. Maclennan, 
 1 H. E. C. 671; 11 O. L, J. 163. 
 
 Certain voters met at a tavern on polling day, 
 and one B. said he did not know how to mark 
 his ballot. One of th'? voters, after shewing B. 
 hovv to mark his ballot, accordinir V: tlie candi- 
 date he desired to vote for, treated: — Held, that 
 the treating was not a violation of sec. 91 of the 
 Dominion Elections Act, 1874, nor a corrupt 
 practice under sec. 98 of the Act. Xorth Ontnrio 
 Election (Dom.)—Gibhii v. Wheler, 1 H. E C. 785. 
 
 (e) At Meetimjg. 
 
 The respondent who was then representing the 
 county in the Legislature, on two several oc- 
 casions at the close of public meetings of electors 
 called by him to explain his conduct as such 
 member, treated all present to liquor at taverns. 
 He had not at tlir- time made up his mind to he 
 a candidate at the then coming election, but 
 tohl the electors that "if they gave him their 
 support he would expect it :" — Held, under the 
 circumstances, that such treating was not done 
 ynfh a corrupt intent. Olengamj Election (Ont. ) 
 McLennan et al. v. Craig, eial.,'\ H. E. C. 8. 
 
548 
 
 hat as D. iliil 
 
 "ing t)io t'lec- 
 iccaaioiis, ami 
 inarily iliil as 
 as a iiiLian:? of 
 1, he was not 
 ,.s< Elii'in AYi'c- 
 H. C. '7«1». 
 
 I this case, if 
 given to sm !i 
 itohaveavcui- 
 
 low stands, as 
 lates to employ 
 t.) canvass l>y 
 ! electioneering 
 ;il by treating', 
 ditlates, or the 
 
 oiling ilay, and 
 ent, and, while 
 )ur times ; the 
 I eld, that the 
 )f corruptly iu- 
 •ain I. jm voting 
 Wlion (Dom.)— 
 
 lent had some 
 and treated the 
 
 rk, and another 
 not a corrupt 
 
 i»/m. 
 
 number of elee- 
 e in severe win- 
 vidence that it 
 ncing the eloR- 
 ig, or that such 
 ict. North V\c- 
 m V. Macknnan, 
 
 on polling day, 
 how to m-irk 
 fter shewing B. 
 11' ','.. t'lie candi- 
 ed:— Held, th it 
 of sec. 94 of the 
 nor a corrupt 
 North Oiit<vio 
 , 1 H. E C. 785, 
 
 representing the 
 two several oc- 
 etings of electors 
 conduct as sucli 
 quor at taverns. 
 p his mind to be 
 ug election, but 
 / gave him their 
 Held, under the 
 ng was uot done 
 ni Election (Ont.) 
 'l H. E. C. 8. 
 
 ,'>49 
 
 PARLIAMENTARY ELECTIONS. 
 
 550 
 
 Qna-rc, whether such treating was in any j deemed a breach of the provisions of the statute 
 ;,'we a corrupt practice, under 32 Vict., c. 21, s. against treating, llallon Eledwn{Ont.) — BuntieU 
 
 !,().; or other than an illegal act which sub- 
 jected the ])arty to a penalty of §100 under s. 
 <!")- the statute pointedly omitting all mention 
 • of treating. lb. 
 
 Violation of the Ontario Controverted Election 
 Act, 1871, s- 01, {treating at meetings) and s. (50 
 (giving or selling liqnor at taverns on polling 
 (lay) are not corrupt practicen within the mean- 
 ing of the Act and of the Election Act of 1 8G8, 
 
 V. 13(1 rhtr, 1 H. E. C. 283. 
 
 A meeting of the electors was held at a tavern, 
 at which both candidates were present. A dis- 
 pute arose, and the meeting broke up and the 
 parties loft the room as a disorderly crowd, and 
 began jiulling off their coats and talked of fight- 
 ing. A treat was proposed to quiet the people, 
 and one F. (iield by Wilson, J., to be an agent 
 of the res[)ondent), treated, and the crowtl 
 
 unless committed in order to intluence voters at ' quieted down and dwindled away : — Held (per 
 ' ■ " ■ "■ • Wilson, J.), thit the treating, under the circum- 
 stances, was not furnishing drink to a meeting 
 of electors assembled for the purpose of promot- 
 ing the election. On appeal the Court, without 
 expressing any opinion as to the treating, held, 
 , on the evidence, that F. was not an agent of the 
 t; had dispersed, went respondent at the time of the alleged treating, 
 about 10 or 1,5 persons , Xorlh Ontario Ehrtlon {Ont.)—McCaskiU v. Pa.c- 
 toii, 1 H. E. C. 304. 
 
 the election cemplained of. Nortli York Election 
 (Oiil.)—Uurhain. v. Boiillbee, 1 H. E. C. 62. 
 
 The respondent, who was a member of a tem- 
 perance organization, held an election meeting in 
 a l(>i):dity within the electoral division, and about 
 au hour after the meeting 
 to ;i tavern where he met 
 in the bar-room, to whom ho made the remark, 
 
 ":>.ivs, will you have something?" Nothing 1 
 was "then taken; but one E., a snpifortor of the | One W., a member of a political association, 
 ivspoiident, M\i\ ho would treat, and he did treat j treated the members of the association present 
 the persons present, and the respondent gave i 'it •'^ 'n'^>-'ti»g '" -"^ t^^'crn :— Held, that the mem- 
 hini tlie money to pay for tlio treat:— Held, S ''ers so present were electors assembled to pro 
 
 mote the election of the respondent within s. 01 
 of the P'leetion Law of 1808, and that such treat- 
 ing was a corrupt practice by W. North Greif 
 Elrrflon {Ont.) — BourdMan v. Scott, 1 H. E. C. 
 .SG2; 11 0. L. J. 242. 
 
 After the nomination of candidates on the 
 
 1. Tiiat as the meeting for promoting the elec- 
 tion had dispersed au hour before the respondent 
 went to the tavern, this was not a meeting of 
 electors. 2. 'J"hat the treating not having been 
 done with a corrupt intent, was not an olTence 
 under ,32 Vict., c. 21 s. 01, as amended by .36 
 Vict., c. 2, s. 2, nor at common law: Qunere, i nominatirmday, "and" on\another occasion, after 
 
 whether the Treating Act, 7 Will. III., c. 4, is 
 in force in this i)rovince. Dnnilux Election (Ont.) 
 — Cook V. nr<,der, 1 H. K. C. 205. 
 
 One F., an agent of the respoiuleiit, brouglit a 
 jar of whiskey to a mecK of electors assembled 
 for the purpose of promoting the election, and 
 gave drinks fi\ m the same to the electors ])re- 
 seiit, which was held a corrupt practice, and a 
 violation of the Ontario Election Law of 1 808, 
 as amended by the Election Act of 1873, so that 
 the election was avoided thereby. H'f.it Welllni/- 
 
 tun Election (Out.) — Moore v. McQoican, 1 H. E. 
 
 C. 231. 
 
 A meeting of the electors was held in a town 
 hall, an<l C. (an agent of respondent) and a num- 
 ber of electors went from the meeting to a tavern, 
 where they were treated by 0. : — Held, 1. Tiiat 
 this was a meeting of electors assembled for the 
 purpose of promoting the election : and, 2. Thnt 
 the treating by C. was a corrupt practice, and a 
 breach of the .32 Vict. c. 21 s. 01, as amended by 
 30 \'iot. , e. 2, s. 2. EnM. PeterhoroiK/h Election 
 (Ont.)—Stratton v. O'Sidlimn, 1 H, E. C. 245. 
 
 After a meeting of electors in a town hall, 
 some friends of the respondent remained together 
 consulting about the election, and afterwards 
 went to a tavern, where some of them boarded, 
 and had au oyster supper :— Held, that the evi- 
 <lence was not suilicient to sustain the charge 
 t' at this was entertainment furnished to a meet- 
 ing of electors under 32 Vict. c. 21, s. 61, O., as 
 amended by 36 Vict. c. 2. s. 2. North Victoria 
 Election (Ont)—McRae v. Nmith, 1 H. E. C. 252. 
 
 Refreshments provided at a meeting of elec- 
 tors, all of one political party, or at a meeting of 
 :a committee to aid in returning a candidate, by 
 and at the expense of one or more of their nnin- 
 'ber, unless in some extreme case uauuot be 
 
 a "meeting assembled for the purpose of pro- 
 moting the election," and after the business for 
 which the electorr, hid assembled was over, the 
 electors left the building in which the meeting 
 was held and disperse<l to various taverns, at 
 which their vehicles had been put up, and then 
 before leaving for home treated each other; and 
 at one of the taverns the respondent himself par- 
 took of a treat: — Held, 1. -Not furnishing drink 
 or other entertainment to meetings of elector* 
 within sec. 61 of the Ontario Election Law of 
 1808. 2. That the meeting of electors for the 
 nomination of candiilates, is a " meeting as- 
 sembled for the purpose of promoting the elec- 
 tion " North Muldle.te.c Election {(Jnt.)— Cameron 
 V. McDoiif/nlf, 1 H. E. 0. 376; 12 C. L. J. 14. 
 
 4. Ulrimj Conrei/ancs. 
 
 On the admission of the respondent's counsel 
 the election was avoided, on ttie ground that 
 agents of the respondent had, during the elec- 
 tion, hired and paid for teams to convey voter« 
 to the polls. Prince Edward Election {Ont.)— 
 Anderson V. Striker, 1 H. E. C. 45. 
 
 Held, that the hiring by an agent of the re«- 
 pondent of a railway train to convey voters to 
 and from places along the line of railway where 
 they couhl vote, was a payment of the travelling 
 expenses of voters in going to and from the elec- 
 tion, within the meaning of .32 Vict. c. 2i, s. 71, 
 O., and was a corrupt practice, and avoided the 
 election. North Simcoc Election (Ont.) — Sis-ions 
 V. Ardaijh, 1 H. E. C. .50. 
 
 Cabs and carriages were hired for the use of 
 committee-men and canvassers during the elec- 
 tion and ou the day of polling, with instructions 
 to the drivers that they were not to convey vo- 
 ters to aud from the i)oll. One cab was however 
 
5D1 
 
 rAHLlA.MENTAllY ELECTIONS. 
 
 ^'rX 
 
 S 
 
 ■fx 
 
 c;: 
 
 ustd for that iiuiposu for tlic giiatci- i.tiit ol' the | 
 thiy, liut vitliimt tliu assent df the iigiiit i>( the 
 TL)-] (iiuhnt, v>]u> hiul eharjfe of the eali ; — Hehl, 
 tliat as tlie evidence did not siliew that the eals 
 and cairiagew were cohiurahly liired for the jmr- 
 jKne of hiibeiy or conveyiiiL; \(it( is to the poll, 
 or that the one cah was so used with the assent 
 t)f tlie agent of res];on(leiit, the liiiing was not, 
 iin illegal aet within ,'iL' A'iet. c. L'l, s. 71, O. , 
 Wt.tt 'J'oitilihi ElivtUm Hint.) — A I'lni-t rumi v. 
 Crooks, 1 H. E. t;. 117. ' \ 
 
 C>n polling day, one W. iislie<l tvo voters to 
 go with him and v<ite for the Jesj (indent, and he 
 would liiing thmi hack, and they could feed 
 their horses and have dinnei'. \V. sent one of 
 Ilia horses on some of his own husiuess, and 
 liired from ont^ of his voters a horse, for which 
 \V. paid him hfty cents, and tlien drove v ith the ' 
 two voters to tJie jioll :— Held, not a hiring of a 
 Imrse etc., to carry voters to the poll witliin 
 3- Vict. c. '1\, s. 71,noia furnishing of entertain- ' 
 liieiit to induce voters to vote for the respondent, 
 within s. (il of the Ontario Election Law of 1SC8. ■ 
 JS'orth Viiioiid Eliclluii (Out.) — 21cl!itt v. finiith, \ 
 1 H. E. C. -Joi ; 
 
 j 
 
 Tlie evidence shewed that il. 's team was hired 
 sonic days hefore the opening ol the poll by ( '. , an 
 agent ot the respondent, for the purpcjse of bring- ! 
 iiig two voters to the ])olls. il. went for the i 
 voters, returned the day ]irevious to the polling 
 day without the voters, and was paid liltetn liol- 
 lars : — Held, that the tuni "six preceding sec- 
 tions" in sec. '.IS of "'I'he lu minion ].;ketions 
 Act, ltS74," means the six sections immediately 
 preceding the lltitli. and theiefore the liiiing of a 
 team to convey voters to th< pills, prohiliited 
 l)y see. ilG (1) was .'i corrupt practice within the 
 meaning of sec. !1S, (I'J Henry, J., dissenting. 
 tSiUhk Elcftioii (Dt.iii.) — Yoiniij el ol. v. ,Smit/i, 
 4 S. V. K. 494. 
 
 The com t declined, in the present state of the 
 Jaw, to exclude in(|uiiy as to the payment of' 
 ti a veiling expenses of pirsons going to and re- 
 turning fix 111 tlie ])oIl, inasmuch as such payment 
 might amount to liriliery. ^'ort/i Victoria Elec- 
 tion (1)011).) — Caiiiiroii \. Mocldiiuni, 1 H. E. V. 
 584; IOC. L. J. '217. j 
 
 was not a coirui/t practice or a wilful violation 
 of o7 Vict., c. !l, s. SKI 1). 2. That M.'s agency 
 was a limited one, and had ceascil before the 
 liayment in nuestioii. llulloii E/ictioii (l)oiii.] — 
 t'yt/.v.s V. McL'roiiiij, 1 H. E. C. I'M. 
 
 A room was ]ir(K'urtd at which jnivate licet- 
 ings were held of the friends of the responiU nt 
 to promote his ehc lion, some of which nieeliiigs 
 he attended. One AV. attended these nieetiiii:s, 
 and WHS appointiil to ]iioiuie the vote ot a cer- 
 tain voter who was absent ircni the riding. AV. 
 hired a vehicle to convey the vciter to the ]ioll : — 
 Held, that AN', was an ayent of the respoiuu nt, 
 and that his hiring such vehicle was a coriiijit 
 practice. Sorfli Oiiliiriu KI<ciioii (/''/;(.)— f. ;/</,.. 
 V. ll7-./(*', 1 H. E. ('. 78.-). 
 
 ."). J/iriiiij J?< oiii.''. 
 
 The candidate is not lestrictcd to his ]jiiicly 
 jicrsoiial cNiuiises, but niaj (if theie is noiiitii.t 
 thereby to inllueiice voters, or to induce ctlars 
 to procure his return) hire n onis for c( nimittt (.s 
 and meetings, in connection with the election. 
 EoMTurohtii Klici'mi, {(Jilt.]-- linihic]; V. Cdtiit ri'ti, 
 1 H. K. ('. 70: St'. L. J. ll.'i. 
 
 Where the amounts paid for hiring teams 
 were fair and reasonable, such hiring was not 
 bribery under the Dominion Controverted Elec- 
 tions Aet, 187.'^. AAhere a canvasser for the 
 respondent received money for hiring teams, and 
 hired from those indebted tohim,aiul agreed with 
 thc-m to give them credit for the respecti\e 
 amounts to be paid for the teams, such an ar- 
 raugenient was not evidence of corrupt practices. 
 A'(/r//( Victorid Election (Dom.) — Comvron v. 
 Muckiman, 1 H. E. C. 012. 
 
 Money yiven to a person to hire a team and to 
 
 fo round eauvussing, held, on the evidence, not 
 riliery. //*. 
 
 One L., a voter, hired a horse and cutter on 
 the day of the election, and with il., a scrutineer 
 for the respondent, drove to the poll and voted. 
 The day after the polling L. and il. returned to 
 their homes, and on the way M. gave L. $4 to 
 pay for the horse and cutter: — lleld, 1. That 
 the payment of §4 having been made after the 
 election, and not having been made corrujitly to 
 inllucnee the voter to vote for the ruspoudent, 
 
 (). /'iii/in;! (.'(';/(•((.-■■>('/•.•-•. 
 
 A candidate may if there is no intent theitby 
 to inthicnce voters or to induce others to jikk are 
 his retuin.iiii] Ifiy men to act as canvassers to ilis- 
 tribute cards aiui ]ilacards, and to ]ierfoini simi- 
 lar scrvici s in (ciniiection with the election. 
 Ed-'-t 'J'oroiitii Ehctiiiii [(Jilt. ) — ./i'( i(iiic/:v. ( 'uim nii, 
 1 H.E. C. 70; S C. E. ,1. IKi. 
 
 The friends of the candidate fiJimed them- 
 selves into committees, and some of them volun- 
 j tarily distributed cards and canvassed dilleriiit 
 localities, with books containing lists of voters, 
 noting sevcr.al particulars as to promises, etc. 
 These canvassers often met in public houses, anil 
 while there, according to custom treated those 
 whom they found there, and thus spent their 
 money as well as their time. On this being re- 
 presented to those who had charge of the mi nicy 
 for election expenses, the latter, in several ciiscs, 
 reimbursed the canvassers : — Held, that these 
 general payments, if not exceeding what would 
 be paid to a person for working the same time 
 in other employments, would not be such evi- 
 dence of bribery as to set aside an election. Jli. 
 
 The bona fide employment and p.ij-mcnt of a 
 voter to canvass voters belonging to a particular 
 relighius denomination, or to the same trade or 
 busines';, or to the same rank in life, or to cau- 
 vasK voters who only understand the French or 
 Celtio languages, is not illegal. The fact that 
 such a voter has skill or kno« ledge and capacity 
 to canvass would not make his employment ille- 
 gal. Went Toronto Election {()iit.)—Aiin!'tniiiij 
 V. C'rooti, 1 H. E. C. 97. 
 
 Money was paid bj- an agent of th t'Sjiondcnt 
 {$'~ each) to certain voters for canvassing, they 
 observing that "a little money in election time 
 was allowed for knocking around," which obser- 
 vation the agent considered was " going about to 
 solicit votes." The agent denied it was paiil v itli 
 any corrupt intent, although his evitleiice « uS 
 not satisfactory. The voters swore tlie money 
 
i).ys 
 
 :>'>3 
 
 rAELTAMEXTARY ELECTIONS. 
 
 ;)r>t 
 
 lilful vidliitiiiii 
 at M.'s agiiicy 
 •c<l lii'tVirt' the 
 i-lioii (lluiii.) — 
 
 privcitu iiitt- 
 tliL' rt'siioii(Uiit 
 ivliicli nii'tliiii^s 
 11jc')-o iiii-'ftiii^s, 
 
 vote (if 11 IIT- 
 
 le litliiij.'. ^V. 
 
 r t(i tlie jidll : — 
 
 he vcspoiicu lit, 
 
 \\;is' a (.oiiiiiit 
 
 {/>' w.)-~(.;i,/..- 
 
 1 t(i liis 1 iii(.l,\ 
 Kif is no iiiti i.t 
 
 O ilHllKC otliiis 
 
 for i'( iiiiiiittcts 
 li tlif flfL'tiiiii. 
 (.('•/■ \'. ( 't'liii I'i'ii, 
 
 intent tlificliy 
 tlu'is to ]ii(i( me 
 iinviissi-i's todis- 
 to jiiioiiu siuii- 
 thf flection. 
 )(/(■/,■ V. CaiiKnii, 
 
 e formud tlitni- 
 L' of tlitni volun- 
 iviisst'il (lilliiint 
 ;,' lists of voters, 
 ) promises, etc. 
 iblic Louses, and 
 ni treiiteil tlmse 
 liUH siitut tlieir 
 n this beinu rc- 
 •ge of the nioMcy 
 in several cases, 
 leUl, that these 
 iug what would 
 ; the same time 
 ot 1)0 such evi- 
 \n cleetiou. /''. 
 
 d payment of a 
 g to a particular 
 tic same trade or 
 n life, or to laii 
 d the French or 
 The fact that 
 dgo and capacity 
 miployment ille- 
 itt.) — AniixIniKij 
 
 f til os])ondent 
 lanviissmg, tliey 
 in election time 
 il," which obser- 
 " going about to 
 it was paid v itii 
 lis eviilence \Vi4» 
 wore tho uiouoy 
 
 was jiiid to their wives, ami tlio agent was not 
 recalled to explain it r — Held, that although such 
 payments might be open to unfavourable inter- ; 
 piotation, it was not, according to the evidence, j 
 inconsistent with being made without any im- 
 piDjier motive. Ih. 
 
 'I'iie respondont and one M. employed one H. , 
 a lawyer and professional piildic speaker, to ad- 
 ilirss meetings in the respondent's interest, and 
 piuMiised to |iay II. 'a travelling expenses, if it 
 \v<:c legal to do do .— Held, (by the Supreme 
 ('(jurt), Tasciiereau and (i Wynne, JJ., dissenting, 
 reversing .\rmour, J.,) that such a promise was 
 not, bribery. Xorlli. OiildrUi EU'ct'inn (Doiii.) — 
 (/;',/« V. lilif/i'i; 1 H. E. C. 7S.') ; .S'. C. siih iiom. 
 .\'>iili Oiifari'i L'I'-cfiiiii, (Dum.) — W/uli'r v. 
 (,';/,/«, 4 S. C. 1{. 430. 
 
 Held, per Arinf)iir, .J., that the hiring of ora- 
 tors and canvassers at an election is bribery. Jb. 
 
 Per Fournier, .1., candidates may legally cm- 
 ]iloy and paj' for the expenses and services of 
 canvassers and speakers, provideil the agree- 
 ment be not a colourable one inteniled to evade 
 tlio bribery clauses of the act. I'er Taschureau 
 anil (iwvnne, J.I., such a payment would be 
 illc.'al. 7/-. 
 
 7. Undue liijlacncv. 
 
 Tiie respondont was charged with intimidating 
 t'livcrninent servants during his siieech at the 
 nomination of canilidates, by threatening to pro- 
 cure the removal of all government servants who 
 should not vote for him, or who shouM vote 
 ag(iiist him. The evidenoe shewed that, tliougii 
 ill the heat of debate, and when irritated by one 
 L'., lie used strong language, there was no foun- 
 dation for the corrupt ciiargu : and as it should 
 nut have been in ido, tho costs in respect of the 
 siiiie were given to the respondent against the 
 lietitioner. WiUiuid Hkction (Unt.) — liiichner v. 
 Cnrrk, 1 J£. E. C. 187. 
 
 .\ candidate's appeal to his business, or to his 
 eiiiployineiit of capital in promoting the prosper- 
 ity ot a constituency, if honestly m ide, is not 
 proliibited by law. West Pcti'rhontuijh El'-ctloti 
 {ihit.)—Sn,tl\. Cox, 1 H. E. C. 274. ' 
 
 <^i;ere, whether the word "employment" used 
 ill tiie brilicry clauses of 32 Vict. c. 21, refers to 
 an indefinite hiring, or would include a mere 
 casual hiring, lb. 
 
 ( hie B. claimed the right to vote in respect of 
 liis wife's projierty, and was toltl by SV., an agent 
 of the respondent, that he coulil not vote unless 
 he could swear the property was his own. The 
 Voter's oath was read to him, and the agent re- 
 peated his statement, and said he would look 
 after the voter if he took the oath. The voter 
 ap[ieared to be doubtful of his right to vote, and 
 withdrew : — Held, that the agent was not guilty 
 of undue influence. Qurere, whether the act of 
 the jigent as above set out was undue intiuence 
 under 32 Vict., e. 21, s. 72. Halton Election 
 (Uitt.)—Du<isdl V. narber, 1 H. E. (J. 283. 
 
 One W., a, voter, who was in arrcar.s to the 
 Orowu for tho purchase money of a lot of land, 
 was canvassed l)y B., an alleged agent of the 
 respondent, who told him that the government 
 Would look sharply after those in arrears for their 
 land who did not vote for the supporters of the 
 
 government : — Held, (reversing Wilson, J.), that 
 wh.at occurred was a brntum fulincn, or an ex- 
 pression of opinion upon a subject on which 
 every one was competent to form an o])inioii. 
 Acts of .agency and the di'cisioiis bearing thereon 
 discussed. Xnfth Onturhj Eli'rihiu ((Jut.) -Mc- 
 CaxkilJ V. Puj-tnn, 1 H. lO. C. 304. 
 
 The respondent stated at a public meeting of 
 the electors with reference to an alleged local 
 grievance, that he understood it to l>c the con- 
 stituticnial practice, here and in England, for tho 
 ministry to dis[)ense as far as pivicticablc tliJ 
 patronage of the constituency on the recommen- 
 dation of tiie person who constested the consti- 
 tuency on the govcriimcii' side ; and that he be- 
 ing a supporter of the govcrniiiiMit, wouhl hiive 
 the patron.ige in respect of a[)propriations .mil 
 appointments whether elccteil or not : — Held, 
 1. That the respondent by such words di<l not 
 offer or promise directly or indirectly any phi 'u 
 or employment, or promise to procure place or 
 employmeiit, to or for any voter, or any other 
 person in induce such votcrjto vote, or refrain 
 from voting. 2. (reversing Wilson, .1.) That 
 the respondent M'as not guilty of uikUic iiiHuence 
 as defined by s. 72 of the Ontario Election Lav 
 of 1S()8, nor as recognized by the common hiw of 
 the FarlianiiMit of England. 3. Tliit to sustain 
 such a general charge of undue inllnence, it would 
 be necessary to prove that the iiitiniidatiou was 
 so general and extensive in its oiiorations tliit 
 tiie freedom of election had ceased in conse- 
 (luence. Muih^hi, E'trfhn (Out.) — Sturratt v. 
 Milbr, 1 H. E. C. 4r)S ; 12 C. L. J. 1<J3. 
 
 Two agents of the respondent g ivc a voter M. 
 some whiskey on polling day, and took him in a 
 boat to an island, where they stayed for some 
 time. One of the agents then left, and the othjr 
 sent M. to another part of the island for their 
 coats. During M.'s absence the latter agent left 
 the island with the boat, but M. got back in time 
 to vote, being sent for by tho op[)osite party : — 
 Held, that the two .agents were guilty of undue 
 influence. Xnrtli Ontario E/"rlioii [Dam.) — 
 GMs V. Whder, 1 H. E. C. 785. 
 
 8. Bi'ttbuj. 
 
 Where in adtlitioa to corrupt acts, bets were 
 made by agents of the respondent and others, 
 with a number of voters who were supporters of 
 X., tho opposing candidate, the effect of the beta 
 being that in order to win the bets, the voters 
 must vote for the respondent : — Held, that these 
 bets were for tho purpose of getting votes for the 
 respondent, and were corrupt practices ; and 
 that in connection with the other corrupt acts 
 provovl, they atTected the result of tho election ; 
 and that the election was therefore avoided. 
 Lincoln. Election (Out. ) — Pawllny v. Ri/kert, 1 H. 
 E. C. 489. 
 
 Money was given to certain voters to make 
 bets with others on the result of the election, but 
 as there was no evidence of a previous under- 
 standing as to the votes, such bets were not 
 bribery. South Norfolk Ekction, (Dom.) — Decow 
 V. Wallace, 1 H. E. C. 660. 
 
 The practice of making bets on an election con- 
 demned as like a de\'ice to commit bribery. Jb. 
 
555 
 
 PARLIAMENTARY ELECTIONS. 
 
 ?);■)(>'• 
 
 a, 
 
 
 9. Framhiknt Device, 
 
 Shortly before polling day tlio ruspoiident's 
 sigcnts isBiied a circular, the sulistaiicu of vhicli 
 Tvaa that they had ascertained upon undmibted 
 authority tliat "W., an indepeniknt (.aiiilidate, 
 despairing of electiou himself, Mas procuring liis 
 friends to vote for (J., the ojijiositioii candidate. 
 W. denied the trutli of this rejiort : — Held, that 
 this was not a "fraudulent device," within the 
 meaning of 32 Viet., c. '21, s. 72 <>. , to intcifere 
 with the free exercise of the francliise ol voters, 
 East Northumlierluvd KIcctiun HJiit.) — Cuxii/ v. 
 Fnri«, 1 H. E. C. 387 ; II 0. L. J. 3-J8. 
 
 10. 
 
 AcId of THf/iinj Xdliire not AjI'i'cliiuj rcmill of 
 Kk'Cl'uin. 
 
 See Wist HiixliiiiiK Election (2) {Ovt.]—J/,i/,le>i 
 V. Hobcitxo)!, I H. E. C. 5.39, p. 541 ; JJniloin 
 Electiou (U>it.)—.'ilcii/hlholiii v. Ban; I 11. E. C. 
 530, p. 5()"J. 
 
 in the member's oath meant "any corrupt prac- 
 tice.'' Wist J/a/<liiii/.i Election {Ont.) — Wisli-iiv. 
 Wills, I H. E. C. 211. 
 
 Per Taschereau, J. — That the personal ex- 
 penses of the candidate should be included in the 
 statement of election expenses required to ho 
 furnished to the returning officer under 37 Vict. 
 c. 9, s. 123. Larue v. JJcslauriers, 5 S.C.E. ill. 
 
 12. Othir Corrupt Practices. 
 
 One T. , who was on the roll as an elector, and 
 had sold his property in June, 1874, before the 
 final revision of the ^Nssessment Koll by the 
 county judge, was, with the knowledge of tiie 
 resjjondent — who was aware a doubt existed as 
 to T.'s right to vote — given an appointment to 
 act as scrutineer .at a distant polling place, and 
 also a certiticate from the returning officer under 
 38 Vict. c. 3, s. 28, U., to enable T. to vote at the 
 place where he was to act as such scrutineer, at 
 which place T. voted witlumt taking the voter's 
 oatiis and returned w ithout entering upon the 
 duties of scrutineer. (Jn a (juestiou of law re- 
 served on the above facta for the Court of Ap- 
 peal : — Held, that the act complained of was not 
 a corrupt practice under the statute ; but under 
 the circumstances, the court gave the respond- 
 ent no costs in appeal. West I'llirhiiroiujU EIk- 
 tion (Unt.)~ScoU v. Cox, 1 H. E. V. 274. 
 
 Meetings for promoting the respondent's elec- 
 tiou were held at pablic houses with the object 
 of inducing the owners to support the respond- 
 1 ent at the election, and because the weather was 
 
 election should be conducted in accordance both ^'.'^^^ '^"'1 meetings c(,u!d not be held in the open 
 
 air. ISO evidence w'as given liy the petitioner 
 I that equally convenient jjlaces, and such as were 
 more proper to be used for that purpose could 
 be obtained : — Held, that as the respondent and 
 his friends had a legitimate motive for holding 
 their meetings at such houses, although their 
 other motives might not be legitimate, no cor- 
 rupt act had been committed. Kingston Elec- 
 lion (l)om.)—St(ivnrt v. Macdonald, 1 H. E. C. 
 C25; U t". L. J. 19. 
 
 11. A ccounts of Expenditure. 
 
 When all the accounts and records of an elec- 
 tiou are intentionally destroyed by the rcspoiul- 
 tnt's agent, even if the case be stripped of all 
 other circumstances, the strongest conclu.siuu 
 will be drawn against the respondent, and every 
 presumption will be made against the legality of 
 the acts concealed by such conduct. South Orel) 
 Ekction (Ont.)— Hunter v. Lauder, 1 H.E.C. 52; 
 « C.L.J. 17. 
 
 A candidate in good faith intended that his 
 
 with the letter and the spirit of the law ; and he i 
 subscribed and paid no money, except for print- 
 ing. Money, however, was given by friends of 
 the candidate to ilifl'erent persons lor election 
 purposes, who kept no accounts or vouchers of 
 what they paid: — Held, that bribery would not 
 be inferred as against the candidate, who neither 
 knew uor desired such a state oi things, from 
 the omission of these subordinate agents to keep 
 an account of their expenditure, especially as the 
 law was new, and contained no provision similar 
 to the Imperial statute, which requires a detailed 
 statement of expenditure to be furnished to the 
 returning officer. But it is always more satis- 
 factory to have the expenditure shewn by proper 
 vouchers ; and if money is paid to voters for dis- 
 tributing cards, oj' for teams, or for refreshments, 
 these will be open to attack, and judges will be 
 lees inclined, as the law becomes known, to take 
 a favourable view of conduct that may bear two 
 voustructious, one favourable to the candidate 
 and the other unfavourable. East Toronto Elec- 
 tion (Old.) — Hennick \. CuvMon, 1 H.E.C. 70; 8 
 O. L. J. U.S. 
 
 The Act 36 Vict., c. 2, ss. 7-12, U., requires all 
 election expenses of candidates shall be paid 
 through an election agent; and the Act 38 Vict., 
 e. 3, 8. 0, requires the meniber-eleet to swear 
 that he had not paid and will not pay election 
 expenses except through an agent, and that he 
 " has not been guilty of any other coriupt prac- 
 tice in respect of the said electiou." Certain 
 payments were made by the respondent person- 
 ally, and not through an election agent; — Held, 
 that such payments were not corrupt practices : 
 — Held, that the words "other corrupt practices" 
 
 VI. Open Taverns and Tkeatino on 
 Election Day. 
 
 The distribution of spirituous liquors on the 
 polling day, with the object of promoting tlie 
 election of a eandi<late, will make his election 
 void. South t'rei/ Election (Ont.) — Hunter v. 
 Lauder, 1 H .. C. 52 ; 8 C. L. J. 17. 
 
 Held, that the violation of sec. CO of 32 Vict., 
 c. 21 (giving or selling liquor at taverns on pol- 
 ling day), is not a corrui)t practice within the 
 meaning of the Ontario Controverted Election* 
 Act, 1871, or the Election Act of I8G8, unless 
 committed in order to influence voters at the elec- 
 tion complained of. North Yorh Election (Old.) 
 —Gorhavi v. Boulthee, I H. E. C. (i2. 
 
 Upon questions reserved by the rota judge 
 under the Outario Controverted Elections Act 
 of 1871, it appeared that H. and B. voted for 
 respondent. H. kept a saloon, which was closed 
 on the polling day ; but upstairs, in his private 
 residence, he gave beer and whiskey without 
 charge to several of his friends, among whom, 
 were friends of both candidates. B., who had uc> 
 
conupt prac- 
 iit.)-WiMlc!jy. 
 
 personal ex- 
 included in tlie 
 equired to lie 
 under 37 Vict. 
 ^S 5 8.C.E. <tl. 
 
 (ken. 
 
 an elector, and 
 
 '4, before the 
 
 Koll by tlie 
 
 nvledge of tlie 
 
 uht existc<l as 
 
 ppointment to 
 
 ing place, and 
 
 _ olticer under 
 
 L'. to vote at tlie 
 
 scrutineer, at 
 
 ing the voter's 
 
 :ni\g upon the 
 
 ion of law le- 
 
 ! Court of Ap- 
 
 inod of wasiuit 
 
 ite ; but under 
 
 e the respond- 
 
 crhiiroiKjh Eh ,•- 
 
 C. 274. 
 
 pondent's eloc- 
 vitli the object 
 't tlie resi)on(l- 
 he weather was 
 eld in the open 
 
 the petitioner 
 nd bucli as wei'e 
 
 l)urpose could 
 resiiondent and 
 ive for holding 
 although their 
 timate, no cor- 
 
 Killi/ato)! Elec- 
 ta, 1 H. E. C, 
 
 EATINO ON 
 
 liquors on the 
 promoting the 
 ke his election 
 U.) — Hunter v. 
 M7. 
 
 CGof 32 Vict., 
 taverns on pol- 
 ice within the 
 U'tecl Election* 
 of 18G8, unless 
 ters at the elec- 
 Eleclion (Vnt.) 
 (i2. 
 
 ;he rota judge 
 Elections Act 
 
 d B. voted for 
 
 liich was closed 
 in his private 
 
 liakey without 
 among whom 
 
 3. , who had uc 
 
 PAllLI AJMENTAR V ELECTl ON; 
 
 558 
 
 license to soil Ii(|Uor, sold it at a place near one 
 of the polls to all persona inditlercntly. 'I'his 
 ■was not done by H. or B. in the interest of either 
 candidate, or to influence the election, B. acting 
 simply for the puqiose of gain ; and the candi<late 
 did not know of or sanction their proceedings : — 
 Held (though with some doubt as to B. ), that 
 neither H. nor B. had committed any corrupt 
 practice within 34 Vict. c. 3, s. 47 and therefore 
 had not forfeited their votes ; for they had not 
 been guilty of l>n))cry or undue influence, and 
 their acts, if illegal and prohibited, were not 
 done "in reference to" the election, which, un- 
 der 34 Vict. c. 3, 8. 47, is requisite in order to 
 avoid a vote, lii-ockrille. bJcHion (Out.) — FHiit v. 
 Filz.-^lminon.% 1 H. E. C. 139 ; 32 Q. B. 132. 
 
 The words "illegal and prohibited acts in 
 reference to elections, " used in 31 Vict. c. 3, 
 ». 3, mean such acts done in connection with, 
 or to aflect, or in reference to elections, not all 
 acts which are illegal and piouibited under the 
 election law. Ih. 
 
 Section (if), of 32 Vict. c. 21 (Ontario Election 
 Ijaw of I8(i8), ])rovides that "no spirituous or 
 ferniente<l liquors or drinks shall lie sold or given 
 to any person " during the day aiipointed for 
 pol'ing in the wards or municipalities in whicli 
 the polls are held ; and by 3(5 Viet. c. 2, s. 1, 
 "corrupt pr.Tctioe " means " any violation of s. 
 (Ml of tlie Election Law of 18(iS during the hours 
 apiMiinted for polling ; " and by s. 3 ot' the latter 
 Act any corrupt practice "oominitted by any 
 candidate at an election, or by his agent, wheth- 
 er with or without the actual knowledge or con- 
 sent of sucli candidate," avoids the election. 
 On the day of the election in (lurstion, and dur- 
 ing the hours appointed for polling, one M., an 
 agent of the re.s|)ondent for the ])urpopes of the 
 election, was oil'ered by a person unknown to 
 him spirituous liquor (whiskey) in a bottle, which 
 such agent, after remonstrating with such per- 
 son, acce|)ted and drank at the polling place 
 where such agent then Wi^ The unknown |)er- 
 8on also gave spirituous liquor from the same 
 bottle to other persons then jjresent : — Held, 
 that as the legislature had, by the provisions as 
 to the selling or giving of liquor durint; the hours 
 of polling, jirovided for the punishment of one 
 particular class, which was defined to be the sel- 
 ler or giver, it did not intend to include the 
 other cla.'is, the ])urchaser or receiver, to which 
 no reference was made, except inferentially , and 
 that tiicrefore such agent, as the receiver of sjjirit- 
 noHs liqnor during such polling hours, was not 
 guilty of a corrupt practice. llVf/ Toronto Elec- 
 tion "(2) (Onl.)—Ailam.son v. Bell, 1 H. E. C. 
 179. 
 
 One F., a tavern-keeper, was given $5 by the 
 respondent, and requested to ap|)oint a scrutineer 
 to act for the respondent Jit the poll (>n yiolling 
 day. F. kept his tavern open on polling day, 
 and various persons treated there during polling 
 hours. Counsel for the respondent, after the 
 evidence of the aliove facts Lad been given, ad- 
 mitted that F. was an agent of tiie respondent, 
 and that his acts were sullicient to avoid the 
 election : — Held, that although the court did not 
 adjudicate tliat the respondent, by giving the 
 $5 and requesting F. to appoint a scrutineer, 
 had constituted him an agent for all purposes, it 
 Was the practice of the court to take the admis- 
 sion of counsel in place of proof of agency, and 
 
 therefore the admission of counsel as to F.'s 
 agency was sufficient. Hehl further, that F., as 
 such agent, had Ijcen guilty of a corrupt practice 
 in keeping his tavern open on polling day, and 
 that sucli corrui)t pncticc avoided the election. 
 Ifii-ssell Eleetion (Ont.)—Oiiilrie ct (il. v. Iled-er, 1 
 H. E. C. I!)<). 
 
 Wiicre a member of the respondent's commit- 
 tee, on the day of election, invited some of his 
 friends to his house, which was opposite the 
 polling booth, and gave them beer, lie, during 
 or soon after polling hours : — Held not a con- 
 travention of 32 Viet. c. 21, s. Gt3, 0. London 
 Elertion (Ont.)—J(inn<tn v. MvreiUth, 1 H.E.C. 
 214. 
 
 One B. was a member of the committee at W. 
 for the rnsi)ondent's election, canva:;sGd for him, 
 j and met him at the comniitteerooms once or 
 1 twice. B. was also ap|)ointed in writing by the 
 I rc^^))ondent to act as scrutineer for him on the 
 1 p(dling day, and during polling hours gave whis- 
 key to the deputy returning officer in the polling 
 I booth : — Held, per Wilson, J., that B. , while act- 
 ing as such scrutineer, was not acting in his for- 
 mer capacity as coniniittee-nian or agent of the re- 
 si)ondent, and tliat liis aitpointnient as scrutineer 
 didnot empower him to do an act of treating so as 
 til iui;kc the respondent answerable for it. South 
 Oiitiirio Eteriion (Ont.) —Farewell v. Broum, 1 H. 
 E. C. 420; .S'. C. ^ub nom. Farewell v. Brown, 12 
 C. L. J. 2 Hi. 
 
 One C, a member of respondent's committee 
 at W., partook of wliiskey in the kitchen of a 
 tavern at W. during polling hours, and also, 
 when bringing a voter from the town of O. to the 
 town of W. within tiie same electoral division) 
 to vote at \V., treated himself and the voter in 
 O. : — Held, Draper, L". J. A., dissentiente) that 
 C was not guilty of corrupt practices within sec. 
 G(5 of the Ontario Election Law of 1808. lb. 
 
 The respondent, on polling day and during 
 polling hours, went to a tavern at W., and par- 
 took therein of spirituous or fermented liquor, 
 for which he did not then pay.— Held, jier Wil- 
 sini, J., that he did not "sell or give" spirituous 
 liipuirs witliin the meaning of s. fiC of the Ontario 
 Election I^w of 18(JS. lb. 
 
 On the day of the election, and during the 
 hours of polling, one W., an agent of the respond- 
 ent, was ofTered a treat in a tavern within one of 
 the ])olling divisions, of which such agent and 
 others then partook : — Held, that giving a treat 
 in a tavern during polling hours was a corrupt 
 practice, and being an act participated in by an 
 agent of the respondent, the election was avoided. 
 South EHW.K Election (()nt.)~McGee v. Wiijle, 1 
 H. E. C. 235; 11 C. L.J. 247. 
 
 Tlie resjiondent, during polling hours on the 
 polling day, met one P. , a supporter of the op- 
 posing canilidatc, and told him he would like a 
 drink ; and both of them, not thinking it ilh;- 
 gal, went to a tavern, and the bar being closed, 
 r. treated the respondent in the hall of the 
 tavern :— Held, by the Court of Appeal (revers- 
 ing Gwynne, J., 1 H. E. C. .343; 11 C. L. .f. 
 190, 29(),) that the receiving of a treat by tlie 
 respondent during the hours of polling, was a 
 corrujit practice and avoided the election. 
 Semble, per (i Wynne, .1., that as to t!ie seller 
 or giver of the treat, the only person liable to 
 
.•).)l 
 
 J'AliLIAMENTAPvY ELECTIONS. 
 
 560 
 
 C 
 
 
 
 v.: 
 
 
 tlie i)pnalty of SIflO wmiM lie tlie tnviiii-koupL'V, 
 as till! stitutdldL'S iKit autUori/f twn ]n'natie.s fur 
 the samu act. Xur/h G'm/ Jilrrt'ioii {(Jul.) — 
 /iirii'/iiiiiii \..Srutl, I H. K. C. ;}(;•_'; 11 C. L. 
 J. -242. 
 
 On the poUini,' ilny, and (liiriui,' the lioiirs of 
 polliiii,', the ruspoiideiit drove up to a tavern at 
 C where he met oue S., a lueinbi'r of his coiu- 
 niitteo, aiiil adilressiii'^' him or the asseiuhlcd 
 people, said, " liuys, this is the lirst time I came 
 to ('. when F dare not tretit, and some oTie will 
 have to treat me." S. repl'e I that he woidd 
 treat, anil, with the n^spondent and a num- 
 ber of ])ersoiis varion.sly estimated at from .SO 
 or .50 went into the t:iverii, wluM'e S. treated 
 some of the peo)ile, and the respfiiideiit drank 
 ■with the rest : — Held, that ^'oiim; into the tavern 
 for the purposes of the treat, when the law di- 
 reeted that such tavern .should lie kept closed, 
 and joining in and accepting such treat, was a 
 liter.vl as welt as a substantial violation of the 
 law, and i corrupt ]>racticc : that the concur- 
 rence <if the resiiondent in the commission of 
 such corrupt practice made him liable to the dis- : 
 qnalitication imposed by the statute for "a cor- ' 
 rui>t practice committed with the actual know- ' 
 ledge and consent of a candidate." Xorth ]l'(•»^ 
 worth Eh-rlh,ii (Oni.)—ClirUfh'. v. Stocl;, 1 H. E. I 
 C. .3i,3; 11 C. L.J. 10(), 200. | 
 
 One M., an agent of the respondent, treated i 
 at a tavern during polling hours on polling 
 day. The evidence was, that decanters were 
 put down, and people helped themselves, but 
 there was no evidence th.'it spirituous licjuors 
 were used. The evidence was objected to at the 
 time, at the charge was not mentioned in the I 
 p.articulars, butadmitted subject to the objection; 
 — Held, 1. That the nature of the treat in the 
 barroom of a country tavern raised the pre- j 
 sumption that the treat wi3 of spirituous liquors, ] 
 and was a corrupt practice, which avoided the 
 election. 2. That had an application been made , 
 in regular form to add a particular embracing 
 the charge, it would have been granted. Xorlli : 
 Vl-toria EkcCton (Out.)—MrRae v. Smith, 1 H. 
 E. C. 2r)2. 
 
 One li. , an alleged agent of the respondent, 
 went into the tavern of one D. during polling 
 hour.s on polling day, and purchased spirituous 
 liipH r, with which he treated himself and several 
 persons there present : — Held, per Gwynne, .J., 
 that the penalties provided by s. (JG of the Ontario . 
 Election Law of 1863 apply only to the tavern- ' 
 keepers, who as such is able to control what is 
 done on his own premises in violation of the act, 
 and that the treating by L. was not a corrupt 
 pr.actice. Per Draper, C. J. A., (1) That sec- 
 tion l)G must be coustrned distribntively. (2) 
 That under tlio first part of the section the 
 tavern-keeper is the only person who can incur 
 the penalty, for not keeping his tavern closed 
 during the prescribed time. (3) That under the 
 second part of the section tlie persons who incur 
 the penalty are (1) the tavern-keeper who sells 
 liquor in violation of the statute, and (2) the 
 purchaser who gives the liquor purchased by 
 him to persons in the tavern. Lincoln Election 
 (Ont.]—RijkeH v. Neelon, I H. E. C. 391; 12 C. 
 L. J. 161. 
 
 The decision of Gwynne, J., in the Lincoln 
 case, 1 H. E. C. 391 : 12 C. L. J. 161, that tav- 
 
 nrnkeepers alone are liable for the violation of 
 .S2 Viet. c. •_'], s. 66, O., as amended by 36 Vict. 
 e. 2, s. I , not approved of. North Winlioorlk 
 Eli'Cll„ii (Ont.)—(.'hrUtiev. Stock, 1 H. E. 0. 343; 
 11 C. L. .L 196. 296. 
 
 Held, by the Court of Appeal (Draper, C.J. A., 
 dissenting), that s. 66 of the ()ntario Election 
 Law of isi!8, 32 Vict. c. 21. as amended by 36 
 Vict. c. 2, applies only to shop, iiofel and tavern 
 kee]>i!rs, who alone are liable t > the penalties for 
 ke(qiing open the tavern, etc., and for selling or 
 giving .spirituous liquors during the prohibited 
 iiours..,S'o»i'/( Ontario Ehrfioii (Out.) — Fnrcwell v. 
 Jinxrn, I H. E. C 420 ; mih noni. FarewM v. 
 liroii'ii, 12 C. L. J. 216. 
 
 Held, by the Court of Appsal, reversing Wil- 
 son, .!., that the prohibition in such section (6!5) 
 as to opening taverns and giving or selling liquor 
 "in the municipalities in which the jiolls are 
 held," applies to all the municipalites within the 
 constituency, irrespective of the place where the 
 Vote is given, or to be given. II). 
 
 By .39 Vict. c. 10, s. 3, 0., which is substi- 
 tuted for sec. 66 of the election law of 186S, 
 tavern-kee[)ers or pjrsons acting in that capa- 
 I city for the time, who sell or give liquor at 
 taverns on polling day and within the hours of 
 polling, are guilty of corrupt practices ; but per- 
 sons who treat or are treated at such taverns are 
 not affected by the statute. — Ford's rote. Lin- 
 oiln E'i-cl.i'>n (-2) (Ont.)—Pamlin'i v. Ri/birt, 1 H. 
 E. C. 500. 
 
 One B. was .appointed, in writing, by the re- 
 spondent to act as his agent for polling day. 
 ]3uring the day he went to a tavern and asked 
 for and was given a glass of beer: — Held, that 
 B treated himself, ami neither give nor sold, .and 
 was not therefore guilty of a corrupt practice. 
 En-it Pdirhorowih Eh'cthm (Onl.) — Stratton v. 
 O'Siillimn, 1 H.' E. 0. 245. 
 
 The majority of the respondent was 337 ; but 
 it appeai'ed in evidence that two agents of the 
 I'cspondent had bribed between 40 and. 50 voters : 
 that in close proximity to the polls spirituous 
 liquor was sold and given at two taverns during 
 polling hours, and that one of such agents took 
 part in furnishing such liquor ; and that such 
 agent had previous to the election furnished drink 
 or otlier entertainment to a meeting of electors 
 held for the purpose of promoting the election : 
 — Held, that the result of the election had been 
 affected thereby, and that the election was void. 
 Writ ILt-itinfM Election (2) (Out. ) — Holdm v. 
 Robertson, 1 H. E. C. 5.39. 
 
 Sec Welland Election (2) (Ont.)—Bnchmr v. 
 Ciirric, 1 H. E. C. 187, p. .533 ; North Ontario 
 EU'cli<>n(Dom.)—aihba v. Wilder, 1 H. E. 0. 785, 
 p. 548. 
 
 vii. drsqualificatiox by reason of cobrdpt 
 Practices. 
 
 1. Of Candidates. 
 
 Before an election judge finds a respondent or 
 other person guilty of a corrupt practice involv- 
 ing a personal disability he ought to be free from 
 reasonable doubt. Centre Wellington Election 
 (Dom.)— Iron-title v. Orton, 1 H.E.C. 579. 
 
560 
 
 vidlation of 
 I by 3() Vict. 
 h Wmtwortk 
 [. E. 0. 343 ; 
 
 iper, C.J. A,, 
 rio Election 
 311(10(1 by 3(» 
 1 :iii(l tavern 
 punaltiea for 
 or selling or 
 e proliibiteil 
 —FiU'cwell V. 
 Farcjo.'ll V. 
 
 versing Wil- 
 seution (Gl5) 
 jelling liquor 
 he polls are 
 IS within the 
 30 where the 
 
 ch is siibsti- 
 aw of 186S, 
 1 tliat capa- 
 v& liquor at 
 the hours of 
 es ; but psr- 
 1 taverns are 
 t mt.e. Liii- 
 Ri/k'irt, 1 H. 
 
 ;, by the re- 
 polling day. 
 *n and asked 
 -Held, that 
 nor sold, and 
 ipt practice. 
 -Stratton v, 
 
 vas 337 ; but 
 agents of the 
 1(1 50 voters : 
 Is spirituous 
 verns during 
 1 agents took 
 id that such 
 •nished drink 
 ig of electors 
 the election : 
 ion had been 
 on was void. 
 — Holdm V. 
 
 -Btichner v. 
 ortli Ontario 
 a. E. C. 785, 
 
 OF CORRDPT 
 
 espondent or 
 ictioe involv- 
 3 be free from 
 jton Election 
 1 579. 
 
 r)»l 
 
 P.V RLI A MENT ARY E L ECTIO.VS. 
 
 503 
 
 It is a g 'UtU'al riik^ t'l it no uiiii can Iju tri^iitud 
 ns a criminal, or mulct in pjiial actions for 
 i>ll'cin;e.s wliich lie did not cnuiiivu ,it ; iiiid it i.s 
 ■iiittlcd law tliat eiiactiiiuuts iivc not to 1)j given 
 a pjiiii,! uiTjct licyoiid tlii/ ik'cc.-is iry import ol' the 
 terms used. But tlie election laws are not to be 
 sd limite.Uy construed l)y an election JudL,'e ; and 
 I'lir civil purposes they are moiv coinpr.^huiisive, 
 a:i(l reach a candidate whose agents brilic in liis 
 li_^lialt, witli ov without his iiiith'>rity. Where 
 the disipialilioation of a candid itc is .s lught they 
 ace to 1)0 coiistnicd as any other penal statutes, 
 aid the candidate ini;st he proved guilty by tlio 
 -( ime kind of evidence as applies to peii;>l iiroeeed- 
 ill's. Kiifi-tliiii FA''rlioii (/)i)in,.)St'-ii' ir/. v. Muc- 
 ■hiinid, 1 H. E. (J. ()_'->; II C. 1.. J. li). 
 
 The respondent entrusted about S700 to an 
 a ,'eiit for election purposes without having super- 
 vised tlie expenditure : — Held, th it this did not 
 111 ike him personally a party within 'li Vict. c. 
 :i, s. 4(), to every illegal applie itiou of the money 
 liy tlie agent, or by those who received money 
 from him. But if a very excessive sum had been 
 s) entrusted to the agent, the |iresuiiiptioii of a 
 c.irrupt purpose might have lieeii reasonable. 
 '<niilli (Iri'ii Elrrilui {Oiif,) — l/itiit"r v. Lindcr, 1 
 11. K. (;. 52; 8 0. L. J. 17. 
 
 Before subjecting a candidate to the penalty 
 of dis'pialilieation, the judge should fool well 
 aisured, beyond all possibility of mistake, that 
 t;ie olTenoo charged is established. If there is .an 
 hone-it conlliot of testimony as to the otFonco 
 charged, or if .acts or language are reasonably 
 susceptible of two iiitorpretitions, one innocent 
 and tlie other culpable, the judge is to take care 
 not to adopt the culpable interpretation unless, 
 after the most careful consideration, he is con- 
 vinced that in view of all the circumstancoa it 
 is the only one which the evidence warrants 
 his ailoptiiig .as the true one. Wilhind Ek'cfion 
 {>) [i)n'.)—linrhner v. Giirrk, I H. E. C. 187. 
 
 Per Burton and P.atterson, JJ.A. — The 2nd 
 sub-sec. of s. 3 of 3r> Vict., c. 2, applies equally to 
 the elected and defeated candidates at an elec- 
 ti ill ; and, if found assenting parties to any 
 pi'actice declared by the statute to be corrupt, 
 cich of them is liable to the disipialiticitious 
 mentioned in the statute. yorlk WeMworth 
 KWlion {Ont.)—ChrUfic v. Stoch, 1 H. E. C. 343; 
 1 1 0. L. .1. 1915, 29(5. 
 
 The respondent, during polling hours on the 
 polling day, met one P., a supporter of the op- 
 posing candidate, and told him he would like a 
 drink ; and both of them, not tlunking it illegal, 
 Went to a tavern, and the bar being closed P. 
 treated the respondent in the hall of the tavern : 
 — Held by the Court of Appeal (reversing 
 fiwjTine, J.), that the receiving of a treat by the 
 respondent during the hours of polling, was a 
 corrupt practice and avoided the election. Xorth 
 (frei/ Ekcfion {Out.) — Hoardmnii v. Scott, 1 H.E. 
 C. 3G2; UC. L. J. 242. 
 
 At a late hour on the day preceding the elec- 
 tion some agents of the respondent determined 
 to resort to bribery, and they carried out such 
 determination at an early hour on the morning 
 of the polling day. There was no evidence of 
 the respondent's knowledge of, or consent to, this 
 Jict of his agents : — Held, (reversing G-wynne, 
 -J.), that the shortness of the interval between 
 tlie resolve and the execution of the bribery, 
 
 3r. 
 
 which was carried out at a place several miles 
 away from whore the respoii lout lived, ren lore I 
 improbable the fact of the respondent's acta il 
 knowledge of such bribery. Ij'ti\)'ii, H'-i-'lm 
 (Oiif.)—/{f/t:ri V. X,:rl„i>, I H. E, 0. 391; 12 1). 
 L. J. KU'. 
 
 The evidence shewed that extensive bribjry 
 was practised by the agents of the ros[i;)ndoiit 
 and by a largo number of pn'.smsin his int'jro-it, 
 but no a;ts of jursinil b'iliiry were pr.>vcl 
 agviiist him, and he denied ill kiMwledgo of sucll 
 .acts. It WIS ill eviileiijo that he had warneil his 
 friends, during the canvass, not to spend money 
 illegally. Tlin jiid.;e (dubitaiito) held that n-> 
 corrupt praitieo Ind been coininitted with the 
 respondent's knowledge or cmisent, and avoided 
 the election for corrnjit practices by the respon- 
 dent's aLjents. On appeal to the Court of Com- 
 mon I'leis, it was:— Held, 1. Tint the ciroura.- 
 stantial eviden(!o in tins case was snlficient to 
 sliow that corrupt practices had been committed 
 by the respondent's agents with his knowledge 
 and consent. 2. That wilful intentional ignor- 
 ance is the same as actual knowledge. 3. Th.at 
 the assent of a candidate to the corrupt acts of 
 his .agents may be assumed from his non-inter- 
 ferenco or non-objoetion when he has the oppor- 
 tunity. And such candidate's knowledge of .and 
 assent to the corrupt a'ts of his agents, may be 
 established without connecting him with any par- 
 ticular act of briborj'. fjiii'loii EliicHon ( D >n. ) — 
 Pntclmnl v. Walb'i\\ H. E. C. 560 : 24 C.P. 434. 
 
 See North Wmf worth E/i'r.tinn {Oiif.)—OhrUtie 
 V. Stock, 1 H, E. C. 315, p. 5.59; Centre Wdlimi- 
 ton E(ecli.oii.{Dom.)—Ironiiile v. Ortoti, I H.E.O. 
 579, p. 545. 
 
 [See also 47 Vict. c. 4, Oat.] 
 
 [2. Of Other Persons. 
 
 Qua>re, whether the judge presiding at the 
 trial shoidd not direct notice to be given to the 
 parties who, from the evidence, were apparently 
 guilty of corrupt practices, so that he might 
 decide upon their liability to disqualification, 
 and report them under the statute. Preacott 
 Election (Ont.) — McKe.nzie v. Hamilton, 1 H. E. 
 0. 1. 
 
 The election having been declared void on ac- 
 count of the corrupt practices of an agent of the 
 respondent, the judges acting as a court for the 
 trial of illegal acts committed .at the election, 
 after notice to such agent, granted an order for 
 the punishment of such agent by fine and dis- 
 qualification. Stormnnt Election (Ont.) — Einpeij 
 et al. V. Kerr, I H. E. C. 537. 
 
 See also North Simcoe Election (Djm.) — Eil- 
 loards v. Cook, 1 H.E.C. 617, p. 564. 
 
 VIII. Trial of Coktroverted Elections. 
 1. Court for Trial. 
 
 The Court of Queen's Bench i3 an existing 
 court for the presentation and trial of Dominica 
 controverted election cases, notwithstanding the 
 0. J. Act, 1831. The petition in this case was 
 intituled, "In the Queen's Bench, High Court 
 of Justice, Queen's Bench Division," and waa 
 delivered, without any special instructions to 
 
5(13 
 
 PARLIAMKNTARY ELI<XTIONS. 
 
 5G4 
 
 C 
 
 ii-r- 
 
 liim, to an ofliccr of, ami in the oft'ice of the rotitioncr liiivinj,' tliit (lualification, and bciny in 
 
 ijlieen's Bencli Division, with whom and in poswibKion of hiw wifi's tstatu, was entitled to 
 
 •wrhieh the ImsincsH of the court of (,)neen'H Heiiuii petition, /'/vwi/// ElcHion {Oiil.)—McKenz'w et 
 
 liatl fornuily been transacted, and the otlicer i al, v. Jfamiltoii, 1 H. E. C. 1. 
 
 •entered it in the iiroccdure hook of the Queen's ' 
 
 lU'ndi division :-Held, tliat the words "lli'di The resimndent, on the opening of the case, 
 
 Court of Justice, (^)ueen'.s Hench Division," added 
 ill intitiding tlu; petition might he rejected as 
 n-uri)lus;i},'e, and that the jietition had hcen pro- 
 perly ]ire8ented in the Queen's Ikncli :— Held, 
 alt^o, that the act of the ollicer in enteriiij,' it in 
 
 charged tliat the jietitioner was a candidate at 
 the election, and as such candidate was guilty 
 of corrupt practices, and therefore tlisqualitied 
 to be a petitioner. The chief justice, without 
 deciding whether the respondent had the right 
 
 a wrong book should not jnejudicinlly allect the to attack the (|ualilication of the petitioner, al 
 
 petition. In rv IIvukiII Klccl'mii (Duvi.) — llcmlcr- ' ' ''^ '^ '' '' ' " ' '' " 
 
 xou V. Diihumn, 1 O. K., Q. H. D. 439. 
 
 A iietition against the return of a member for 
 the House of Commons, was liled in the High 
 t'oiirt of Justice, Common Pleas Division, cim- 
 Btituted by the O.J. Act; and the reiiuired 
 Kceurity was furnished by the deposit thereof 
 1x,'ing made in a hank nnilcr a direction obtained 
 tlierefor from the accountant of the said lligii 
 Court, ai)pointed under the said Act ;— Helil, by 
 
 Cameron, J., that the Common rieas Division (if . ■ ^ i i xi •. , ., 
 
 the said High Court wiis not one and the same l'"''l'"**«"* declarmg the petitioners vote void 
 court as the Court of Commonl'leas as cons^titu- ' "" '"^ s«i'iitiiiy, the conduct of a petitioner at an 
 te<l prior to the passing of the Judicature Act ; I '■'hction cannot be in.|nired into. And lu this 
 that the said Court of Common I'leas still existed i '^'"''^ *"^''''' "* "? '"«tinction between a cmdidate- 
 and was capable of rt-cciving and tryiii" the sai.l ' l'etit'<J>'er, and a voter-pctitioner. ll>. 
 
 lowed the evidence to be given, luit held the 
 same to l)e insutiieient. Prince Edward hlection 
 (<)iil.)—Amli-r>«>iiv. Striker, 1 H. E. C. 45. 
 
 A petitioner in an election Petition who has 
 been guilty nf corrupt practices at the election 
 compl.iined of, does not thereby lose his status 
 as a petitioiu'r.. />iilferiii Elevtion {Oiit.)Sleii/lit- 
 h„lm V. Bitrr, 1 H.E. C. 529 ; 4 A. R. 420. 
 
 Except where there are recriminatory charges 
 against the uiisuecessful candidate, or for the 
 
 petitions, and therefore, the said Common I'has 
 Division hiid no jurisdiction to entertain the 
 Bame :- Helci, also, that the (|uesti(in was pro- 
 ])erly raised by way of preliminary objeciioii, .is 
 ■was also the question as to the security furnish- 
 ed :— Held also, that the onus of proving the 
 jireliminary objections rested on the lespondLiit, 
 who r.'iised them. 1'hc (juistion as to juiisdic- 
 lion being important, and open to reasonable 
 tloubt, no costs were allowed. He North Yuri; 
 Klerllon (Dinii. ) — Poterxvii v. Mnlod; ;i2 C.P. -loS. 
 Overiuled by the Supreme Couit, S iS.C.P. 12(!. 
 
 Semble, That if the petitioner in this case was 
 ])roved at the trial of the election petition to- 
 liave been guilty of corrupt practices at the 
 election comj)laiiied of, the petition could not be 
 dismissed. Jit. 
 
 An objection to the status of a i)etiti(iner 
 cannot be taken by pieliininary objection. //>. 
 
 A candidate may be n, petitioner although his 
 
 jiroiierty (pialilication be defective, if it was not 
 
 deinaiiiled of him at the time of his election, if 
 
 he claims the scat, his want of qualilieation may 
 
 Held, folkwing the last case, that the High ^ be urged again.st his being seated, but lie may 
 
 t'ourtof Justice has no jurisdiction in Dominion ' still shew tiiat the respondent was not duly 
 
 «'ol)ti overfed election cases. Jii re We.tt Huron' ' 
 
 Ekriiiv (])<m.) — Mitcl,eil V. Cameron, 1 O. R., 
 
 Q. li. D. 4'M. Revel sed by iSuprcme Court, 8 
 
 ' elected, if he so cliargt; in his ])etition. Xurtk 
 ! ] irtori(( Elieliiin {Doni.)— Cameron v. Maclennan, 
 , 1 H. E. C. 584; IOC. L. J. 2)7. 
 
 I A duly qualified voter is not disqualified from 
 being a jietitioner on ttie ground that he has been 
 guilty of liribery, treating or undue inlluence, 
 during the election. Xort/i Shneoe Elertion{Jjoni.) 
 E</irar<l.^ V. Cook; 1 H.E.C. ()17 ; 10 C.L.J. 2:«. 
 
 I'isqualifieations from corrupt practices on the 
 part of a voter or candidate arise after he has 
 been found guilty, there is no relation hack. II). 
 
 A elijirgo that the petition was not signed by 
 
 petitioner bona fi<lc, liut that his name was used 
 
 mala tide by other persfiiis, i.s a matter of fact to 
 
 The rcspondint attacked the qualification of i,e tried, and cannot be raised by preliminary 
 
 «nc of the petitioners on the grounds that he j objection. Ih. 
 
 was Ml alien, and that he had no projierty (juali- 
 
 fication, having madeanassignmentin insolvency 1 In order to disqualify the petitioner acting as 
 before the election. The learned Judge admitted I such, the respondent olfered to prove (1) that 
 the evidence, but Held, (1) That the evidence j the petitioner had been reported Ijy the judge 
 as to the petitioner having lived in the United I trying a former election petition as guilty of 
 J'tatis without shewing that his parents were 
 Anieneiin citizens, was not suflicient to establish 
 
 S. C. R. l'i(). 
 
 See I?e N'uKjara Eltclh.n (Doni.) — P/nwh v. 
 Jhajl,f.s, ■:<) C. r. 2(;i ; ,S(,ni/i Ontario E/ietiun 
 {Dovi.) — McKai/x. 0/<n ; He Wexl Jlaxtimj.t Elec- 
 tion (t.ht.)—]\\illl,ritl<je V. lU.nn, Ih. 270; Mont- 
 'inornei/ Ekclit.n (iJoni.) — Valiu v. Lamjloif, ',\ 
 !S. C. R. I. 
 
 2. PMlion. 
 (a) Petitioners. 
 
 corrupt practices. (2) that the petitioner had in 
 
 fact been guilty of corrujit practices at siieli 
 
 the charge of alienage. (2) That the Ontario election ; and (8) that he had been guilty of cor- 
 
 J'lcttion Act of ISdS, by the teim "owner. 
 
 rupt ju'actices at the election in cjuestion : — Held, 
 
 gives to the husband whose wife h;is an estate > that, such evidence, if offered, would not dis- 
 lor life or a greater estate, the right to vote m | qualify the petitioner. Cornwall Election (3y 
 UB^ect of his ■wife's property; and that tho '.(Bom. )^Maclennan v. Btnjin, 1 H. E. C. 803. 
 
5G4 
 
 565 
 
 PAKLI A.^I ENTAR Y ELECTIONS. 
 
 5G(r 
 
 mil being in 
 
 entitled to 
 
 ■JilcKeiiziu et 
 
 of the case, 
 uiiiuliiliite at 
 i W(iH guilty 
 
 (lis(jualitiL'(l 
 ice, without 
 ad the rigiit 
 utitioiier, al- 
 )ut held the 
 rfinl I'Accliun 
 
 C. 45. 
 
 tioii who has 
 
 the election 
 
 se his status 
 
 iif.)-~S/,-!,ilit- 
 
 R. 4'JO. 
 
 tory cliai'ges 
 ;, or for the 
 
 a vote void 
 ;itioiicr at an 
 
 And in this 
 
 a candidate- 
 
 Jh. 
 
 this case was 
 u petition to- 
 ■ticcs at the 
 I could not be 
 
 a petitioner 
 iction. ///. 
 
 • altlinuL;li liis 
 , if it was not 
 is election. If 
 litication may 
 1, but he may 
 was not duly 
 ;iti()n. ym-th 
 V. Madi'iiiinn, 
 
 liniliiicd from 
 at he has been 
 lue intluence, 
 '•Jl<rfiiji>{l)ii)ii.) 
 
 G. L. J. '2:i2. 
 
 •actices on the 
 e after he has 
 tion back. Ih. 
 
 not signed by 
 anie was used 
 itter of fact to 
 y preliminary 
 
 Hicr acting as 
 [jrove (1) that 
 by the judge 
 as guilty of 
 ;itioner had in 
 itices at such 
 
 1 guilty of cor- 
 stion : — Held, 
 vould not dis- 
 II Ekctlon (3> 
 EI. E. C. 803. 
 
 Hsld, further, that as the petitioner did not ' 
 claim the seat, uvideuee could not lie gone into \ 
 for the purpose of personally disciuulifying hiui. i 
 lb. 
 
 Seo Peel E/ertion (<)nt.)—/Iiirdv. Vlilx/inlin, 1 
 H. E. C. 485, p. 571. 
 
 (b) Fojin of. 
 
 The fith general rule in election cases does not 
 preclude the statement of evidence in the peti- 
 tion, it renders it unnecessai'y, and is intended 
 to discourage sucii pleading. Siiii/h (hfuril E/n- 
 ti,in{Onl.)—lli<iikim V. Olirn; 1 \\. H. C. L',S8 ; 
 II C. L. J. 1«J. 
 
 An election petition need not shew tlie time at 
 which the return of the respon<lent was i ubli.shed 
 in the (Jazette. //( re 1'iiaicII K/irlioii (Duiii.) — 
 llcmhrtum v. JJirbiisoii, 1 O. I!., (.». B. D. 43i>. 
 
 (c) A iiu'iidiiicnt (if 
 
 The judge trying an election petition has 
 power to amend the petition by allowing the 
 nisertion of any objection to the voters" list used 
 at the election. Muiick ElectUiii (Out.) — dolliar 
 tl ttl. V. McCallum, 1 H. E. C. lot. 
 
 On €a preliminary objection to a petition claim- 
 ing the seat on a scrutiny, the court declined to 
 strike out a clause in the petition which claimed 
 that the votes of persons guilty of bribery, treat- 
 ing and undue influence, should be struck off the 
 poll. The giver of a bribe, as well as the re- 
 ceiver, may be indicted for bribery. North Vk- 
 loria Election (Duni.) — Cmncroii v. Macknnan, 1 
 H. E. C. 584 ; 10 C. L. J. 217. 
 
 The petition, besi<les charging the respondent 
 with various corrupt acts, charged one of his 
 agents with similar acts, and claimed that the 
 agent was subject to the same dis(iuulitieations 
 and penalties as a candidate. The prayer of the 
 petition asked that this agent might be made a 
 party to the petition, and that he might be sub- 
 jected to such disqualitications and penalties : — 
 Held, (1) That there is no authority in the Elec- 
 tion Acts or elsewhere, for making an agent of a 
 candidate a respondent in a petition on a charge 
 of personal misconduct on his part. (2) There is 
 no authority given to the election court or the 
 judge on the rota to subject a person "other 
 than a candidate," to such disoualificatious. 
 South Qj-foril Election (Ont.)— Hopkins v. Oliver, 
 1 H. E. C. 238; 11 C. L. J. 101. 
 
 See In re Prexcolt Eltction (Doin.) — 9 P. 1\. 
 481, p. 6G7. 
 
 3. Particulars. 
 
 (a) Generally. 
 
 When the petition claimed the seat for the 
 unsuccessful candidate on the grounds that (1) 
 illegal votes and (2) improperly marked ballots 
 were received in favour of the successful candi- 
 date ; that (3) good votes and (4) properly mark- 
 ed ballots for the unsuccessful candidate were 
 improperly refused ; and that (5) the successful 
 candidate and his agents were guilty of corrupt 
 practices, and particulars of all such votes and 
 ballots and corrupt practices were asked from 
 the petitioner :— Held, ( I) As to the illegal votes, 
 
 that the 7th general rule prescribed the particu- 
 lars of objected Votes to be given, and the time 
 of liling and ilelivering the same, and a special 
 order was not therefore necessary. (2) As to the 
 improperly marked ballots and improperly re- 
 jected ballots, the petitioner not having informa- 
 tion respecting them, could not be ordered to 
 delis'cr particulars of the same. (3) Particulars 
 were ordered of the names, address, abode and 
 addition of persons having good votes, whose 
 votes were improperly rejected at the polls ; and 
 particulars of the corrupt pr.actices charged by 
 the petitioner against tlio respondent and his 
 agents. Heal i: Smith, L. K. 4 C. V. 145 (West- 
 minster case), followed. IVe-nl El(/in Election (Ont.) 
 —Ciixcailen v. Mini rue, 1 II. E.'C. 223 ; 11 C. L. 
 J. KiO. 
 
 Where particulars were delivered after the 
 time limited by the order for particulars, and 
 not returned, an aiiplication made at the trial to 
 set them aside was riifused ; such application 
 should have been made in chambers before the 
 trial. North I'ic/oria Election (Out.) — McJlai: v. 
 Smith, 1 H. E. C. 252. 
 
 Particulars of recriminatory cliarges delivered 
 after the time limited by the order for such par- 
 ticulars were allowed, but the petitioner waa 
 allowed to apply for time to answer the charges 
 therein contivincd, and was given such costs as 
 had been occasioned by the granting of the ap- 
 plication. North Victoria Election (Ont.)-~Me- 
 liae v. Smith, 1 H. E. C. 252. 
 
 The petitioner was not allowed to urge before 
 the Court of Appeal a charge of corrupt practices 
 against the respondent personally, which ha<l 
 not been specified in the particulars, or adjmli- 
 cated upon at the trial of the petition. .South 
 Ontario Election (Ont.) — Farewell v.'Jiroivn, I II. 
 E. (3. 420. 
 
 The particulars not having been properly pre- 
 pared, the petitioner, while obtaining the costs- 
 of the proceedings, w;is disallowed the costs of 
 the particulars. Ea^t Nurtliiiinherlanil Eliction 
 (Doia.)—Qibxon v. Bi'jijar, 1 H. E. C. 577. 
 
 (JJoia.) — Gibson v. liiyijar, 
 
 See South Wentworth Election (Ont.) 
 V. Carpenter, 1 H. E. C. 531, p. 517. 
 
 -Oliiiitead 
 
 (b) Amendment of. 
 
 Where a question is raised as to the sutiicienoy 
 of the notice of objection to voters, the judge 
 may amend the particulars, giving time to the 
 party atl'ected by the amendment to make inqui- 
 ries. Stormont Election (Ont.) — Bethune v. t'ul- 
 quhoun, 1 H. E. C. 21 ; 7 C. L. J. 213. 
 
 At the trial of the petition, an amendment of 
 the particulars as to corrupt practices will be 
 allowed ; and if the respondent is prejudiced by 
 the surprise, terms may be imposed. WeHnihl 
 Election (Ont.)—Bcattij v. Carrie, 1 H. E. C. 47. 
 
 The respondent was elected by a majority of 
 23, and on the trial of an election petition. Hied 
 to set aside his election for corrupt practices and 
 illegal votes, evidence was given by both sides 
 on a charge not properly set out in the petition- 
 ers' particulars of corrupt practices. At the 
 close of the evidence the respondent objected 
 that the charge was not in the particulars, and 
 that it was not verified by the affidavit of the 
 
Ml 
 
 T'ai{Lia:\h:ntaiiy i:r-ECTroxs. 
 
 ')M 
 
 
 S 
 
 
 ;■?.■ 
 ■ 1 1 ? ■ 
 
 
 J) ■titioiK'i-':- 1 1 I'M, (I ) '11 wit tlic |irtitiiiiii'rHiiii^'lit 
 luiii Mil tlicir ]i;ii ti'iilaiiJ, iiiid th.il the i'liiu%'i'.s in 
 the jM'titioii Were Aviilf cikph^Ii tn ('(ivtr tliii'li.irgc. 
 (•-') 'I'liiit ;in til tliis c'liiui;!', tlic jiurtiis liail ill 
 fmjt ^'oiio iiitii dvidi-'in'i' williiiiit |iiii'tiiMilMrH, iiliil 
 tlmt till.' |ii'titi.)iii;is' allidavit vi'iilyinn tln' ]iiii'- 
 tirnlai's w.'iM imt lu'crnsaiy. /.iiiro/n h'/rr/imi i'2) 
 {(lilt. I- J'air/iiHj tt <il. w'lliihrt, I II. j;. <'. 4.S!». 
 
 On an ai>])liiatiiiii liy tlir jictitiiiiii!!' tn amend 
 tin; }iai tit idars liy addin;,' i'liar;,'i'H i>f luilicry 
 u^'ainHt tin; ii'.s|Mindi:Mt inrxunally.and lii.sa),'iiits, 
 his attnrncy niadi' allidavit tliatdiiri.Ti'nt pi'isunM 
 liad liiiii i'miiliiyid tn I'oUuct inforniatioii ; that 
 tin; ni.'W iiai'tiiiilars only I'aniu tn his know li'di^i; 
 thi't'i! days lii'toj-u thi' a|i]ilii:ation ; and that ho 
 Vii'Iiivcd llicjy wi'ii; iiiati rial totln; issiifs joinid : — 
 llild. that as it was not shewn that the ]ii;titioni'r 
 or tin; iiirsoiis eiMployod could nut have ;^ivi;n 
 the attorney the int'orniation I'Mig ])rior to the 
 ajii'lieation, and as it Mas imt sworn that the 
 rliarge's were helieved to he trui', nor weie they 
 otherwise eontirnied, and as the aniendineiit 
 nnght have heen moved foi- < arlii;r, the ajij)lieii- 
 tion shoidd hi; refused. Smith Xiirl'oll: AVer- 
 
 /;.-// (M)///.)-7Aco/c V. n;,//,irr, 1 II. K. c. wio. 
 
 The evidence in sujijiort of the otler ol a j)re- 
 selit, or something nice, to the wife of a voter to 
 iinluee the voter to refrain from votinf{ Hhewing 
 that it had reference to a diU'erent election than 
 the oin; in i|iiestion, an amemlnn'ut of the ])arti- 
 eulars w;is refused and the eharj.'es dismissed. 
 Uiilliiu /•Jlir/hiii {/><itii.) — I'riis-i rt al. V. McVra- 
 Hi'ii, 1 11. !•;. ('. TM\. 
 
 Son Xoi-lh Vh-lnrhi Rfcrfimi ((hil.) — Mcl}w' v. 
 Siiiilh, 1 If. E. C. i'r)2, p. 5.-)!). 
 
 (c) FUiiiii. 
 
 Held, that under 37 N'iet. e. 10, the filing 
 of an election petition in the local registrar's 
 office at L'Orignal was not a presentation of } 
 the ))etition within the reijnireinenta of the 1 
 statute, which requires the tiling to lie at the j 
 head otfice, and that no amendment could be i 
 made to validate such petition. In re thi' Pnnrott 
 nitctiun (Out.), 9 P. R. 481 .— Hagarty. 
 
 (il) rreliminarij OJijcctlons. 
 
 As the Ontario Act (R. S. O., c. 11) makes no 
 provision similar to that in the Dominion Con- 
 troverted Elections Act, 1874 (.S7 Vict., c. 10, 
 Dom. ), limiting the time within which prelimin- 
 ary objections to an election petition should be 
 takeu, the special circumstances of each case 
 must determine whether the ])reliminary objec- 
 tions have been taken with suflicientpromptitudc. 
 J)iilf'i-riii Election [Ont.) — Slriifhtholm v. liarr, 1 
 H. E. C. 529 ; 4 A. R. 420. 
 
 Preliminary objections to an election petition 
 under .37 Vict., c. 10, D. , though presented after 
 the expiration of five days from the service of 
 the petition, are not void but at most irregular, 
 and while they remain on the files of the court 
 tile petition is not at issue, and there can be no 
 examination of the parties. Ru Bothwell Ekctlon 
 Petition {Dom.), 9 P. R. 485.— Osier. 
 
 See I!>'Xortfi Oxford Election {Dom,)— 8 P. R. 
 520, p. 5(58 ; Jfe North York Election {Dom.)— 
 
 P,ii,i-H,„i V. Miilock, .12 ('. 1'. 4.''i.S, p. U^^•^ •, in re. 
 Went Huron Klieliim {Ihini.) — Mileliell v. i.'dm- 
 erun. M). |{. 4:i.'<, i> 5(13. 
 
 4. /'i .ij)iinil( nt's Anxiner. 
 
 Where a respondent had filed certain prelinii- 
 naiy olijeetions to the jietition, which were 
 oviiiiled, he was not allowed to insert similar 
 ohjeenons ill his answer, and the elause contain 
 ing them was slriiek out. The respondent can- 
 not, ill his answer, set up that the pi'titioner was 
 by himsedf and his agents, guilty of corruiit 
 )iraetiees, whereby he beeaine disi|ualilieil to lie 
 a candidate. A'c A'oiVA thfnrd Elrelinn {/)oni.) 
 S I*. It. 52(1. -Hagarty. 
 
 Tin; i;ourt or a judge has ))ower on a summary 
 a|i|ilieation to .strike out any alleg.itions in an 
 answer which are not an answer in law, and 
 might be emb.irrassing at the trial to the peti- 
 tioner. ///. 
 
 5. rVo.i.s Petitlan. 
 
 In a Driminion Oontrovertod Mleetion case, a 
 sitting member can file a cross iietitiou only 
 against a candidate who is not a petitioner. It'' 
 SWth (hford Hl<rti,m{lhnn.), 8 WW. .520.- 
 Hagarty. 
 
 \. (the aiipcllant), the sitting member, against 
 whom an election petition had been filed by L 
 (the riispondent) an unsuccessful candidate, pre 
 senteil a cross-petition under the Stli sec, sub- 
 sec, 2. of the Uominioii Controverted Election 
 Act, 1874, alleging that Ij. was guilty, as well 
 by himself as by his agents, with his knowledge 
 and 'consent, of coi'rujit practices at the said 
 election. This cross-petition was not filed within 
 thirty days after the juiblication in the Cancida 
 <Jazette of the return to the writ of election by 
 the clerk of the crown in Chancery, but within 
 the delay mentioned in the last part of said sub- 
 sec. 2 .sec. 8 viz : fifteen days after the service of 
 the petition u])on V. complaining of his election 
 and return. The cross-petition was met by a 
 preliminary objection, maintained by Meredith, 
 C. J., alleging that it was filed too late : — Held, 
 on appeal, that the sitting member cannot file a 
 cross-petition, within the delay of fifteen days 
 mentioned in the Last part of s.iid sub-.sec. 2 of 
 sec. 8, against a person who w.asa candidate and 
 is a petitioner. Per Fournier, Taschereau, and 
 Gwynne, .I.f., that the said extra delay of fifteen 
 diiys is given only when a petition has been filed 
 against the sitting member, alleging corrupt 
 liractices aftet Jie return. (Henry J., dissenting. ) 
 Montmorencii Election {Dom. ) — Valin v. Lamjloii, 
 3 S. C. R. 90. 
 
 6. Security. 
 
 A Dominion note for .?1,000 was offered as 
 security in this case to the registrar of the Court 
 of Chancery, who stated to the petitioners' soli- 
 citors that he could not receive it, but directed 
 them to make payment of it through the account- 
 ant of the court in the same manner as moneys 
 were usually jjaid into court. The solicitors 
 then paid the money into the bank to the credit 
 of the matter of the petition according to the 
 usual practice of the Court of Chancery : — Held, 
 that the deposit of the security, as required by 
 
■)(;.•{ ; /w r« 
 // V. Cum- 
 
 nil preliiiii' 
 
 lllull WL'IU 
 
 Hcrt siiiiiliir 
 isi' ooiit.iiii 
 iiili'iit can- 
 itiiiiior \v!u 
 (if corniitt 
 
 llili(!ll to III! 
 
 /ii}ii (l)oni.\ 
 
 ;i .sunimary 
 tiiiiis ill till 
 law, anil 
 ii) thu jicti- 
 
 tiiiii caso, a 
 
 titiou only 
 
 itioiier. I'l' 
 
 . It. 520.- - 
 
 ber, ai{ainMt 
 til.Ml l.y I.. 
 ilidate, pre 
 ll Sl!0., null- 
 (m1 Klo(.'ti<iii 
 Ity, as well 
 kiiowlodgt' 
 at the 8aii| 
 liluil within 
 tho Canada 
 (dtiction bj' 
 , )>ut within 
 of said Hill)- 
 10 Horvici! (if 
 IwH t'luction 
 s in(3t by a 
 Y Moroditli, 
 ito : — Held, 
 ;annot file a 
 fiftuun (layH 
 iiil)-sec. 2 of 
 .ndidate and 
 licreau, and 
 lay of lifteeu 
 IS been filed 
 ng corrupt 
 diasontinj;. ) 
 V. Lutujloia, 
 
 i oflfered as 
 >f the Court 
 ioners' soli- 
 nit directed 
 ;he account - 
 ' as moneys 
 lO solicitors 
 o the credit 
 ding to the 
 ry :— Held, 
 required by 
 
 r.GD 
 
 I'A i; M A.M KNTA IIV V.\.VS TlnNS. 
 
 ■.70 
 
 the Act, .'{7 Vict. c. 10, D., was pidpcily given. ; 
 2\orlli Yiirk Kliilimi (l)iiiii.)- (tlir: r it nl. v. 
 .SlniiKjc, I II. E. C. 740. 
 
 'J'lii^ (IcjidHit (if 81, (MK) was given to tliu elcrk 
 lit the tiliK^ of tile pieseiitilig tlie petitiini, luit it i 
 wan afterwards paid into a liaiili uiiilei tlie direc- I 
 tioii of tiic accountant of thu .'"iiipreiiio Cnurt : — 
 Held, that having lieeii propeiiy paid to the 
 clerk, tlie NiiliH(j(|iieiit dispo.sition of it could not 
 ull'ect llu^ petitioner. /» /•(■ Itiisivll Klicliuii [hnin.) 
 - Haiti, rsnii V. Oldrii.^oii, 1 (». I!., g. 1!. D. VM. 
 
 7. Jii'i'i'liiiliiii/iii'i/ C/iiiri/ii, 
 
 Where It charge of corni[it iiractiees l<y wny 
 of a reeiiiuiiiatory ease is allrgeil by a re.spun 
 .lent agaiii.st a petitioner, it may be rcscived 
 until the (Miiiilusion of the petitinncr'.s case. 
 Xor/li Siiiiriii /■J/irHiiii (Oiif.) ■ -iS'/.s.s(//(,< v. Anluijli, 
 
 1 Ji. K. c. r.o. 
 
 Itceriiiiiiiatoiy eiiarges arc permitted in the 
 interest of electing, in order to prijveiit a .suc- 
 cessful iietilioiier iilitaiiiing the vacated seat if 
 he has violated any pi()\ isioii of the election 
 law. Kiiii/i Virl'iriii Ehclimi (Out.) — Mrlim v. 
 Smith, I }1. I'l. C. •-Ti'.'. 
 
 Piirticulais of recriminatory charges delivered 
 were allowed, but the petiti(jncr was allowed to 
 apjily for lime to answer the charges tiicreiii 
 containe(l, and was given such costs as had lieeii 
 occasioned by tln^grantingof the application. ///. 
 
 Jn this case ■)., tlu^ appellant, claimed under 
 ;t7 \'iet. c. 10, s. (it), that if he was not entitled 
 to the seat tiie election should be declared Void, 
 on the ground of irregularities in the conduct of 
 the election generally, and lilcd no counter peti- 
 tion, and did not otherwise comply with tlie 
 provisions of .'{7 \ ict. c. 10, the i)oiiiiiiion t'ou- 
 trovertcd Mlection Act : — Held, that sec. (i(! of 
 .'J7 Vict. c. 10, only apjilics to cases of recrim- 
 inatory charges and not to a case where neither 
 of the parties or their agents arc charged with 
 doing any wrongful act. (Juiuhh t'unidii Elic- 
 tioii (Doin.) — Jviikinn v. lirvcknn, 7 S. (J. It. 'lA't. 
 
 8. Aihiiii.shiHs iiJ'L'iirriipl Pntitice-i lij Aijin/s. 
 
 The respondent was elect(iil by a majority of 
 '-'Gl, and at the trial counsel for the respondent 
 admitted that there was evidence callable of being 
 produced which would have the ellcct of avoid- 
 ing the election under R. ,S. ()., c. 10, n. 15!); 
 and the t'ourt on such admission declared tlie 
 election void. J)iiil'criii Etirtiwi (<)iil.)—Skhiht- 
 hulm V. Ban; 1 ii. K 0. 5;{0. 
 
 IJefore the trial tho respondent served a no- 
 tice upon the petitioner, admitting that the elec- 
 tion must be avoided on the ground of bribery 
 by an agent without his knowledge or consent, 
 such admission was acted upon at the trial, and 
 the election avoided accordingly. North Simcoc 
 Eli'clion(Doni.)— Edwards y. Cook, 1 H.KC.G24. 
 
 Admissions by Counsel — See C'arlnton Election 
 (Out.) — Li/on v. Monk, 1 H. E. C. G, p. 540; Prince. 
 Edward Election (Ont.) — Anderaou v. Striker, I 
 H. E. C. 45, p. 550; HaH.-<ell Election (Ont.)— 
 Oijilvie. V. Bithr, 1 H. E. C. I!t9, p. 558; Corn- 
 wall Election (Ont.)— Snetzin'jer \. Mclut'ire, 1 H. 
 E. 0. 203, p. 540. 
 
 .See Smith l,'i nl'ri ir Elflimi [hnm.) Iliuiinr p 
 iniin V. Mclluiuiitll, 1 II. v.. (', ."i.'ii; p. ,>7;! ; Wi.'.l 
 Xoilhiiiiihi rlaiiil Elii'timi {/tuiii.) /luriilniin v. 
 Err, I H. E. (.5(12, p, .')71. 
 
 !». Eriil, „rr. 
 
 Held, that the writ of election and return in ed 
 not lie piddiiced or proved heiore any evidence 
 of the election i.s nivell. Slunnniil Eli '■linn (Out.) — 
 Jiilliiinr v. C'liliinhiiiin, 1 11. ll. C. 21 ; 7 ( '. I,. .1. 
 
 2i:<. 
 
 The ('olirt ildered the agent of a tele;,'r;ipli 
 eoiiiiiany to piniliiee all tilcgrains t*int by the 
 I'l^spondent and his alleged agent during the elec- 
 tion reserving to the lespondi'iit the right to 
 move the Ciiiirt of .\plie,ilon the point ; tln^ le 
 sponsiliility as to eoiiseijiieiu'cs, if it were winng 
 .so to order, to rest on tiu' pc^titioner. Smilh O.i 
 I'nrd. Eliitinii (Oiil.) J/o/ikins v. Olinr, 1 II. E. 
 
 <j. 24;{. 
 
 A witness called on a charge in thi! [larticnlais 
 of giving spiiituous licpiors in a certain tavern 
 on polling day, dining polling hours, cannot lie 
 asked if he got liijuor duiiiig pulling hours in 
 other taverns. Ih. 
 
 The iittorney for the respondent may be 
 ordered out of court wliiui a witness is being 
 exaiiiined on a charge of a corrupt b.irgain for 
 his withdrawal from the election contest, when 
 the evidence of such witness may refer to the 
 sayings and doings of such attorney in respect 
 of such withdrawal. lit. 
 
 Evidence of admisHioiia made by an agent after 
 his agency has expired, is inadmissible. Wist 
 I'elerburo ElectioH(Onl.)— Scott v. Coj; 1 H. E. C. 
 274. 
 
 A candidate whin examined as a witness at 
 an election trial, may be asked his e.xpendituii- 
 at former Provincial and l)omiuioii elections at 
 which he was a candidate. North Sinicoe Eire- 
 tion (iJoni.) — EdwariU \. Cook, 1 H. E. C. G2-1. 
 
 A commission to examine witnesses in a for- 
 eign country may bo issued in the case of the 
 trial of an election petition. I 'om wall Election (3) 
 (Dont.)—Maelennun v. Uenjin, 1 H. E. C. 803 ; 
 8 r. K. 04.— Armour. 
 
 Allegation, that forty persons whose names 
 were not on the voters' list who were not entitled 
 by law to vote, did vote ami voted for the re- 
 spondent. Objection, that the matters alleged 
 were not available, because the seat was not 
 claimed for the defeated candidate, and because 
 it could be shewn that the forty votes were cast 
 for the respoiiileut: — Held, though this objection 
 came within the I'^ast Elgin Case, 4 A. K. 412, 
 there appeareil to be too much doubt about the 
 question to strike out the allegation; for, senible. 
 that a person who has voted without a right to 
 do so is not entitled to the protection of the sta- 
 tute as to secret voting, and that an elector 
 should not bo prevented from shewing that the 
 elected member obtained his majority through 
 bad votes. In re Went Huron Election (Dam.) — 
 Mitchell V. Cameron, 1 O. i\., Q. B. D. 433. 
 
 The rcspondoiit, a week before the trial, served 
 a notice on tho petitioner admitting bribery by- 
 one of his agents, and notifying the petitioner 
 
r>7l 
 
 PA RLT A MKNTA TIY ELEr'TTONS. 
 
 572 
 
 r 
 
 I" 
 
 
 not to incur fiirtliiT <'<)Mh. At tlic tridl the re- 
 H|ioiirlfiit, ]im'HnMiit to tlio notice, ^i\vc evidcni'c 
 of Itiilicry liy an iim'ht, whidi tliii court luM 
 nutticicnt to «Mii(i the clfc'tion. 'I'lir )i(titioncr 
 tlicn cotitt mil cl tluit lie iiml a ri;,'lit to shew tii;it 
 comiiit |)r,iiti''eH imij extenKiveiy ]irev;iiieil, (inil 
 tliiit the res]ionilent hftii lieen jierMonally K'lilty 
 of corrii]it [ir.!! ticcH : - lleM, tli.at the functions, 
 of the court were jndii'iiil uml not inc|uiHitorial, | 
 iiiiil that no fiirtiu'r evicl<'nee rIiouM lie received 
 • ■n till' issue jih to the avoidance of the election 
 (in account of luihcry liy aj^'cntH, But if iuei- ! 
 (Untally it should aiiiieiir, in the ini|niry an to ! 
 tlie iieiKonal char^'i'M a^^ainst the respondent, that ' 
 corrnjit jiractici s extensively jirevailcd, the Hanie | 
 would lie eertilied in the report to the siieakor. ' 
 Will Siirtliiiiiilii i-liiiiil ICIii'lioii (Ihiii.) — liiif)!- 
 Iitiiiiit al. V. A''//', I II. !•;. C. nti-. 
 
 10. \\'il/i(innr(it of C/iarnr or ritil'mn. 
 
 The court rt'comnu'iiilcd the petitioner to witlr 
 »liaw his petition in this case ; and on an appli- 
 cation for that pur]ioHc, another elector having 
 Hiipliid to he Hulistitutcd una petitioner : —Meld, 
 per liiirton, .I.A., tint as tin; Court of Appeal 
 liad licen pl.iced in possession of all tliu charges 
 against the respondent, and of the evidence in 
 support of them, and had reconnTicnd(!d the 
 withdrawal of tin; jii'tition, ami no sutlii'iont 
 additional grounds having been shewn for such 
 sulistitution of petitioner, the order for the with- 
 drawal of the petition shouhl bo granted. I'lcl 
 Elirtioii {Oiil.)—JliirM V. ChUhnIm, 1 H.I'^.C. 485. 
 
 Senilile, if evidence shewed that corrupt prac- 
 tices had been committed by a respondent, it 
 would be the duty of the court so to adjudicate 
 whether the iietitioner wa.s willing to withdr.'iw 
 the charge or not. Smith liiiifn ir ElirlUm 
 {/Jiiiii.)—/i<niii( nidiii v. McJJiixijiil/, 1 H. E. C 
 ruM ; IOC. Iv. J. 'J8(J. 
 
 11. CoxtK. 
 
 The petition was dimisscd, but owing to the 
 nnw ise and imprudent acts of the rcsiiondent, 
 lie was allowed only one half of tlie taxable costs. 
 O'ltiKiarri/ EkHion (Ont.) — McLennan v. Cra'uj, 
 1 H.' K. C. 8. 
 
 ^^'hcre bribery by an agent is proved, costs 
 follow the event, even though personal charges 
 nia<le against the respondent have not been 
 proved, there having been no additional expense 
 occasioned to the respondent by such personal 
 charges. South Grey Election (Dam. )- hunter v. 
 Lauder, 1 H. E. C. 62 ; 8 C. L. J. 17. 
 
 The petitioner having been warranted in con- 
 tinuing the enquiry as to the personal complicity 
 ■of the respondent with the illegal acts of' his 
 agents, was held entitled to the full costs of the 
 trial. Kingnton Election {Dom.) — Stewart v. Mac- 
 donald, 1 H. E. C. 625 ; 11 C. L. J. 19. 
 
 There being no grounds for charging the re- 
 spondent personally with corrupt practices, and 
 the Bcrutiny having been abandoned, the costs 
 of those parts of the case were ordered to be 
 paid by the petitioner. But with respect to the 
 •other costs, though the respondent was success- 
 ful, the matters were proper to be inquired into 
 in the public interest, and each party was left to 
 
 jiay his ownco.sts. h^mt Toranli) Ehcliim, {Ont.) 
 -Ili'iiiiirk' V. Ciiiinroii, 1 M. K. (). 70; 8 (J. L. .1. 
 
 II a. 
 
 The eleetiiin was sustained, but it lieing ii 
 the jiulilic interest that the matters brought for- 
 ward should have been ini|uired into, and as tlii; 
 respondent had not (exercised siiiierviHion over 
 the expenditures in connection witli the election 
 the petition was dismissed without costs, IVi ■'t 
 '/'oroiit ''Jlirtiiin (Out.) — Arm^t'vuii v. L'ronkx, I 
 If. E. C. !»7. 
 
 'Hie petitioners were ordered to pay the eosti 
 of the respondent up to the meeting of the Elec- 
 tion Court, and tlie costs of the sjiecial case; 
 but as to the costs of the trial, eat^li party wa^j 
 ordered to Jiay his own costs. Mom'k Election 
 (Doni.)~('oll'„ir\. McVolliim, I M. E. C. 154. 
 
 Tlie respondent was cliarged with intimidat- 
 ing government servants during his speech at 
 the nomination of candidates, by threatening to 
 procure tlu^ removal of all i,'overnment servants 
 who should not vote for him, or who should vain 
 against him. The evidence shewed that, though 
 in the heat of debate, and when irritated by one 
 IJ., he used stroiii: language, then; was no foundi- 
 tion for the corrupt charge ; and as it should nob 
 have been made, the costs in respect of the same 
 were given to the respondent against the peti- 
 tioner. W'lllaiid Eliiiioii ('!) (Ont.) — Ituchner v. 
 Cirrie, 1 H. E. C. 187. 
 
 The respondent was ordered to pay the costs 
 of the petition and trial, except tlie costs of cer- 
 tain issues found in fiiv<iur of the respondent, 
 part of which costs were to be paid by petitioner 
 to the rcsiiondent ; and as to jiart, each party 
 was ordered to bear his own. II). 
 
 The costs of investigating charges of bribery 
 against the respondent's election agent, though 
 not established, were awanled against the re- 
 spondent, owing to the eiiuivocal C(uiduct of his 
 agent in the matters which led to the charges ; 
 also the cost of other charges of bribery which 
 were not established, and tlie costs of proving 
 that several tavern-keeiiers, for their own profit, 
 had violated sec. 60 of the Election Law of 1868, 
 I as the witnessess who gave evidence of these 
 matters also gave evidence of other matters, as 
 to which it WIS reasonable they should lie suh- 
 pienacd. Went Wellinrfton Election (Ont.) —Moore 
 V. MeOowan, 1 H. E.'C. 231. 
 
 The petitioner was declared entitled to the 
 general costs of the inquiry, and the costs of the 
 evidence incurred in proof of the facts upon 
 which the election was avoided ; but the costs 
 incurred in respect of charges which the peti- 
 tioner failed to prove were disallowed. South 
 Enxex Election (Ont.)— Mc.Gee v. Wiyle, 1 H. E. 
 C. 235 ; 11 C. L. J. 247. 
 
 During the progress of a scrutiny of votes, 
 certain ballot papers, counterfoils, and a voters' 
 list were stolen from the court, which hail the 
 effect of rendering the proceedings in the scrutiny 
 useless. And in disposing of the costs the court 
 ordered the respondent to pay the costs up to the 
 date the election was avoided, but that, under 
 the circumstances, each party must bear his own 
 costs of the scrutiny. Lincoln Election (:'-) — 
 Pawling v. Bi/kert, 1 H. E. C. 489. 
 
 Held, that as the petition had been rendered 
 necessary by the mistakes of tlie deputy returning 
 
 m 
 
572 
 
 .73 
 
 PA IJTJA ^.I I:N'TA II V I'LKOTIONS. 
 
 .n 
 
 l);8C. L. .1. 
 
 it lu-ini; i:i 
 l)r(Miulit for- 
 II, mill 118 tlid 
 LTviHioii over 
 
 till) elcutidii 
 
 I'OStH, Will. 
 
 V. Croiik-M, I 
 
 |>ay till) cmU 
 ! "f till! lOk'i'- 
 
 llHK'inl caHc ; 
 
 ^li party w.h 
 Dlirl,- h'Irctio'i 
 
 K. V. ir.4. 
 
 li intiiniditt- 
 is apuuuli lit 
 ireatiiiiing to 
 it'iit servants 
 (I Hliimlil vot« 
 tliiit, tli(inf.'li 
 tatoil liy iiiiu 
 as no foiind'i- 
 it slloillti lint 
 t of the saiiK! 
 nst tho pcti- 
 iiuf/inrr V. 
 
 piy the ci)st< 
 I costs of cor- 
 ! respondent, 
 by petitioner 
 1, each party 
 
 S8 of bribery 
 igciit, though 
 liiist thu re- 
 oiiduct of Ilia 
 the charges ; 
 iribery which 
 ts of proving 
 ir own profit, 
 Law of 18(;S, 
 ince of these 
 r matters, na 
 lionid be suli- 
 Ont.)— Moore 
 
 titled to the 
 e eoata of the 
 e facts upon 
 mt the costs 
 icli the peti- 
 3wed. South 
 ■yle, 1 H. K. 
 
 iny of votes, 
 and a voters' 
 Inch had tha 
 1 the scrutiny 
 >8t8 thu court 
 usta up to tho 
 that, under 
 bear his own 
 ^j lection (:*.)— 
 
 een rendered 
 uty returning 
 
 • illici t'K, fur which iiritlicr I' ■ iK^titioncr nor ri'- 
 wpondi'iit w.ts n'spiiri><ililc', csu'li party slioiild 
 bear Ills own costs. IIumicII h'/' flimi ('-') (*>iil.) ■ 
 J!,ihr V. ,l/"/V/"". 1 ". I'l. ('. r.l!>. 
 
 Various ads of briliny ,'iiii| of cdiinirablt' 
 chirity liiiviiig been proved agiiiist the agciilM 
 and Mub-iigciits of the rcspoinlenl, thi' clcetion 
 was Hitt ilsill(^ witli costs, iiiciiKliii;^ the costs of 
 the cvii'cnce nil the persiMiiil cliar'.'es a^'aiiist tlie 
 respoMiliHit. ('iiniirii/l Hlirlhin (/'()/»,) —ISmihi 
 
 V. M,ii-<i.„i<ii,i, I M. i;. ('. TiiT : 10 r. \,. ,1. :M:t. 
 
 The respoiiilciit sought to estiblish, on an in- 
 ■ipiirv under a preliiiiiiiary objection, that tlie 
 petitioner (the opposing candidate) had lieen 
 guilty of lii'iliery, and was therefore disipialitied 
 IIS Hiicli. 'I'lie iiii|iiiiy was not cmiclilded, as 
 during its iieiideiicy the haiglish lOh'ction Conrts 
 lield that lirihery wniiiil not disipialify a peti- 
 tioner ; but so far as tlie evidiMice went, while 
 it discloseil such a large expenditiiro of nioncy 
 by the petitioner Mild his a.;ents as to lead t<i the 
 ♦tnspicion it was not all expended for the legiti- 
 mate ]mrposes of the elei^tioii, it <lid not shew 
 briliery by the ]ietitioiier. Tlie rospondent tli<'ii 
 consented to his election lieiiig avoided on the 
 ground of bribery by one of his agents without 
 iiis knowledgi! or consent ; -lleM, that the gcn- 
 ■vvA rule as to costs slionld prevail, and that thu 
 respondent slioiiM pay the costs of the inipiiry 
 as well as the general costs of tiie cause. SdiiI/i. 
 Rriifnnr KlirHon (/>(»».) — linnwntyiii v. Mc- 
 
 Doiinnif, I II. K. c. r,:>r,; loc. l. .i. 'isii. 
 
 The election was sot aside with costs, e.fccpt as 
 to the costs of certain chargi^s which were un- 
 warranted. A party, though successail, is not 
 •entitled to the costs of all the witnesses be may 
 uulipauii', nor is tiie fact of theiii being called or ' 
 not called the test of such costs lieiiii.' t.ixable. ; 
 Xiii<l(tm I'jli'fl'ion (Duiii.) — lilack vl ul. v. I'litinh, 
 1 H'. ]■;. C. 5(i8. 
 
 The jtotitioners, after a notice from tho re- 
 '.apoiidont admitting bribery by one of his agents, 
 examined witnesses on the personal charges, 
 which were not proved, and in tleterminiiig tho 
 question of costs, it was held, that as the peti- 
 tioners might have come to the court on tho 
 notice served by the respondent, and have asked 
 to have the tdeetion set aside, and as they had 
 •.•itteinpted, but had failed, to establish tho per- 
 .soiial charges, the respondent should only pay 
 such costs as he would have had to pay had 
 the petitioners accepted tho notice served upon 
 them before the trial. IVcit Norlhamhi-rlaiid 
 EliHion {Dom,)^-liiiriiliaiii v. Ken; 1 H. E. C. 
 51)2. 
 
 From the judgment on the personal chargea 
 the petitioner appealed ; but the court, on a re- 
 view of tho evidence, declined to set aside the 
 tinding of the election judge. The appeal was 
 •dismissed without costs, as the petitioner had 
 fltrong grounds for presenting it. South Huron 
 (DoiH. ) — ItUchie v. Cameron, 1 H. Y,. C. 576. 
 
 The particulars not having been properly pre- 
 pared, tho petitioner, wiiile obtainmg the costs 
 of the proceedings, was disallowed tho costs of 
 the particulars. EoAt Northumberland Etfctiim 
 Election (Dom.) — Gibson v. Bi<ji;ar, 1 H. E. C. 
 •577. 
 
 The petitioner waa held entitled to the general 
 <:o3ts of the petition, except as to the caaea of 
 
 till' voters whose n lines were not on tli;! votm-ii' 
 lists, and as to the Hcrntiiiy of bili^its. .Vo/V./t 
 \'ir/iiilii Hlicliiiii ('!] {/hiiii.) -I'liniirniiw Miu:- 
 leriKin, I II. K. O. ti71 ; 11 C. L. .1. lli.X 
 
 It is not a ch unpertoiis trans'ictioii that nn 
 
 associ itinii of persons, witli wliicli tlr' ji 'tition -r 
 was politii'illy •allied, agreed to p ly th '■ costs of 
 the petition. I'A'cii if the agrceiiieiit were chaiil- 
 pertoiis, that would imt bi- a siillicieiit rcisou t<> 
 stay tile |troceediiigs on th" pi'tition. Xorllt 
 S'niirtie h'lir/iofi {/)iiiii.) -K Imiirih wA'oitk, I II. I'l. 
 
 ('. (117 ; IOC. I-. .1. '-'.T.'. 
 
 Tho ntiii'iiiiig olfiecr li.'vving acted honestly 
 anil fairly in rejciitiiig the niiininatioii pip'i', 
 each party to the petition w.is left to biiar bin 
 own costs. S>iilli. /'tii/'rrii' /'Jtir/hin (2) (Ihtin.) — 
 MeKini V. Mr/hiiinaU', I II. I']. O. 7'J:». 
 
 Tho petitioner w is held entitleil to i;osti of thu 
 charges on wllicli he succeeded, and the resp ui- 
 dcnt to the costs of the cirirgcs on wliieh thu 
 (ictitioiier failed. Xort/i /{■ii/'nin /'J/i-rtioii {/) ml ) 
 -■\V/ii/ev. Mnrra.!/, I II. E. (J. IH). 
 
 Where there had been cxcessivo treating by 
 an agent but not usimI .is a means of cirniptly 
 intliienciiig the voters, the p'tition wis dia- 
 inisseil without costs, following the rule laid do.Vci 
 ill the ('arr'ckfergiis (!ase, (I ()".M. & II. 2 ! I. ) 
 Hisl h'liiht fJreHon (/)oiii.)-niue V. Ark '11, I II. 
 !•;. O. 7'i!>. 
 
 The petitioner was allowed his costs, but ii it 
 tho costs of the charges which he failed to est ib- 
 lisli. CorniniiM Ebfihiu (.'$) (Dom.) — Macteuiiin 
 V. liirniii, 1 J I. Vj. (J. SXJ. 
 
 See North York Kli-i'linn {Out.) — (iorham.et nl. 
 V. /ioiillbre, 1 H. K. (!. (i2, I). r>->'.); W'-<'. /V'-r- 
 boroiiijh Kleriion {()iit.)~Srotf v. Vox, I H. K. (\ 
 274, p. ").■)'). Soo also I'reaeott Elcvlinn, Wi Q M. 
 WOW ; North VIr'oria Election — Cameron v. 
 Macleiutan, .39 Q. H. 147. 
 
 12. Reserving Special Case. 
 
 A special case maybe reserved for the opinion 
 of the Court of Queen's Bench only when the 
 judge presiding at the election trial h-is a serious 
 doul)t as to what the law is ; or believes that 
 the court might entertain a difTorent opinion 
 from that of the election judge. North York 
 Election (Ont.) — Gorkam et al. v. BouUbee, 1 H. 
 E. C. ()2. 
 
 Quierc, whether, under .S4 Vict., c. 3, s. 20, 
 tho rota judge has power, before the close of the 
 case to reserve (juestiona for tho court. Brock- 
 ville Election (Ont.)~Flint v. Filzsimmons, 1 H. 
 i:. 0. 139; 32 Q. B. 132. 
 
 Where a class of poraons affected by the de- 
 cision of a caae is numerous, and the question in- 
 volved is one of general importance, the judge m'ly 
 reserve a special case for the opinion of the Court 
 of Queen's Bench and the judge here decided to 
 take that course. The petitioner, after such 
 special caae had been reserved, appeared before 
 the judge trying the election petition, and con- 
 sented to abandonment of the special case and 
 the dismissal of the petition 'with costs, and it 
 w.as so ordered. West York Election (Out.) — 
 Grahame v. Patterson, 1 H. E. C. 156. 
 
1 ' A K LI A^I E N T A II Y ELECTION S. 
 
 570 
 
 13. Xi 
 
 Trial. 
 
 c 
 
 
 ' rr 
 
 n 
 
 See I'cd Elrrtimi (Oiil.j—Jiid-M v ihhhohii, 1 
 H. E. C. 48"), ;/-/■/•((. 
 
 14. Judijf.ii U<port. 
 
 The jiulj;('"s rtpdit to tlic spciiker as to tluiso 
 jiorS'diis "(ithor tliiin tin; tamiitlatu, ' vlio liavu 
 Ltiii imivtd tiiiilty (if ctirniiit inaLticis, is luit 
 ciiiiLlusivt', SIP as to bring tluni vitliiii .'U \i<jt., 
 c. 3, s. 4!), O., ami so loiuler tlaiii liable toiitiial 
 C(ilisc(ilit'licfs. >>oiit/i V.i/ord LIicI'k'K (Out.) — 
 Jh,i.Aiii.s V. Ulir,r, 1 H. L. C. L>;,H ; 11 C. L. J. 
 I(il. 
 
 The tleiliiitioii of " coiiuiit I'lactiics " in sec. 
 3. ami lliu tflcL-t of till' itjoit of tkctioii judgLS 
 to the sjicalicr, uiKkr sic. 'JO ol tlic (oiitrovcitcd 
 Elections Act of 187.'!, consiilticd. Aoii/i ['if- 
 foria lilicliiii (J)(ii(.) — i'dHKi'dn v. Aiacldiuiuii, 1 
 H. E. C. 584; IOC. E. J. •-M7. 
 
 15. I'ruclicc in Apjual. 
 
 Tlic ijctitionor was not allowed to urge before 
 tlie Court of A^iiit al a charge of coi rtipl jiractices 
 against the lesiiomlcntpcisonallj', which had not 
 been speciticd in the jiarticuhirs, or adjudicated 
 upon at the trial Sinilli VuUiriv Kitrtivn (Out.) — 
 Fimrcll V. Jiioini, 1 H. E. C. 4iiO; .V. C, .•nth 
 miiii. FimiriU v. Jlrovii, I'J C. L. .1. 'Jl(j. 
 
 Ill jienal statutes, (jucstions of d(.ubt are to he 
 constuud favourably to tlie accuted, and where 
 the court of lirst instance in a quasi crihiinal 
 trial has acijuittcd the respondent, the appellate 
 court will not reverse his linding. j\vrl/i Oiitn- 
 rio Eldlion (Oiit.)—JiJtCtidill\. Ptulon, 1 H. E. 
 C. 304. 
 
 Charges of corrupt practices, consisting of 
 promises of money and of employment, were 
 made against the respondent and one M., his 
 agent. Hoth the respondent and his agent denied 
 making any promises of money, but left the pro- 
 mises of employment unanswered ; and the judge 
 trying the petition (Draper, C. J. A.) so l(juud, 
 and avoided the election. '1 hereupon the re- 
 spondent appealed to the Court of Appeal, and 
 uider 38 ^'ict. e. 3, s. t, ottered further evidence 
 by atlidavit, specially denying any oiler or pro- 
 mise, directly or indirectly, of employment. 
 ])raper, C. J. A., who tried the petition, having 
 intimated to the court that had the respondent 
 and his agent made the explicit denial as to 
 oflers of money or employment which it appeared 
 they had intended making, he would have found 
 for the respondent : — Held, under these circuni- 
 staiices, that the finding of the Election Court 
 should be set asitlc, and that a new trial should 
 be held before another judge on the rota. Ob- 
 servations on the diilerence between an election 
 trial and a trial at nisi prius. I'cvl Klid'on (Out. ) 
 —niiml V. Cliinlwlvi, 1 H. E. C. 485. 
 
 On a charge that the rcBpondent oflered to 
 bribe the wile of a voter by a "nice present," if 
 she would do whrt slio could to prevent hei- hus- 
 band from voting, three witnesses testified to the 
 ofl'cr ; the respondent denied, and another wit- 
 ness who was present heard nothing of the otter. 
 On this evidence, and there being no proof that 
 the witnesses in support of the charge were act- 
 ing from malicious motives or corrupt expecta- 
 
 1 tion, nor any evidence impeaching their veracity, 
 the charge was held proved, 'i'hc respondent 
 appealed to the Couit of Ap]ieal on the finding 
 of the learned chief justice on the above charge 
 of peisonal liriliery. Held, 1. 'i hat an ajipellate 
 couit will not, except under special circumstau-, 
 ces, interlere with the finding of the court of 
 first instance on questions of laet tleiiending on 
 the veracity of witne^l■cband eoidlictiiig evidence. 
 2. 'that as the jud;.e trying the petition had 
 found that the respoiidcnt had made the otl'er to 
 the wife of the voter in the maiinci- above stated, 
 such an (itt'ei- was a jironiise of a " vahiable con- 
 sideration," within the meaning of tlie brilicy 
 clauses of 3l2 \'ict. c. "Jl. lUilltm Ehittini (Out'.] 
 ~Uii.<.'>dl<t ol. V. JUirhir, 1 H. E. C. '283 ; .V. r. 
 sill) noiii Han is v. BurOer ; 11 C. L. J. 273. 
 
 The chargo upon wliich this appeal was prin- 
 cipally deci<led was that of the respoi dent's 
 bribery of one David Asselin. The learned judge 
 who tiied the case found, as a matter ot fact, 
 that tlic appellant had undeihaiidcdly slipped 
 into Asselin s poeket the ."-r) foi' a jiretendeil pur- 
 
 I pose, that was not even mentioned to the reci- 
 pient : that this amount was not included in the 
 ]iu1ilished return of his expense as required by 
 the Election Act, and this payment was bribery ; 
 — Held, that an appellate court in election cases 
 ought not to reveise on mere matters of fact, the 
 
 i findings of the judge who has tried the petition, 
 unless the court is convinced beyond doubt that 
 his conclusions are erroneous, and that the evi- 
 dence in this case warranted the finding of the 
 court below, that ajipellant had been guilty of 
 personal bribery. BiHicliii.^.tf Kliction (Dviii.) — 
 Luruc V. DisUuiricr.s., 5 S. C. it. !tl. 
 
 See also A'o97/( Ontario Ekciion (Uom) 
 V. Gibhn, 3 S. C. E. 374. 
 
 ■ WIkI< 
 
 IG. Otlar C((,s(.f. 
 
 "^Vhen a rule of court has been issued under 
 the Controvci'tcd Elections Act, appointing a 
 place for the trial not within the constituency 
 the election for which is in (|uestion, the judge 
 by whom the petition is being tiied, has luj 
 power to adjourn, for the further hearing of tlic 
 cause, from the place named in the rule of court 
 to a place within such constituency. i!>fivth Urtii 
 Ekftiim (0)it.)—JIii7i!ir v. J.aia.er, 1 H. E. C. 
 52 ; 8 C. L. J. 17. 
 
 The efi'ect of s. 30 of 34 Vict., c. 3. O., is that 
 the judge is to act on the ]irinciplcs upon which 
 election committees in England have acted 
 where he has no light from the rules which his 
 own professional experience supplies him with; 
 ami he is in addition to be Ijound by the deci- 
 sions of the rota juelges in England trying elec- 
 tions under Actssimihir to our own, in the same 
 way as the cou'' -i feel bound by their judicial 
 decisions in other legal matters. WcM Toraufo 
 Ekctioii (Ont.) — Armntromj v. (Jrookn, 1 H. E. C. 
 St7. 
 
 AVhere in orelinary cases there is evidence to go 
 to a jury, but on which the judge, if sitting as a 
 juror, would find for the defendant ; in similar 
 cases in election tiiaJs he ought to lind agaiiust 
 the chaige of bribery, lli. 
 
 The day appointed for the trial of an election 
 petition may be al .creel to an earlier day by con- 
 
 III 
 
577 
 
 PARTITION. 
 
 578 
 
 liL'ir veracity 
 
 I' I'tSijiunduiit 
 
 n tlie finding 
 
 iibovL' cliaiije 
 
 t an apiJuUalu 
 
 circmiistiiu-, 
 
 till; t'diiit of 
 
 uiiciidin^' on 
 
 tingeviikiice. 
 
 lietitiim Lad 
 
 if tliu (itl'or to 
 
 aliovc stated, 
 
 valuaMu ciiii- 
 
 t tJu,' Lrilicy 
 
 Kliit'iim {(!),/.} 
 
 C.'28:i; .S'. r. 
 
 J. 273. 
 
 eal ■\Viis iniii- 
 
 rtspoi duiit's 
 leainod judge 
 itter ot lact, 
 ledly f-lipjuil 
 retciidiil [iiir- 
 l to tlio riL-i- 
 icludtd in tlie 
 > reqiiiied liy 
 
 was bribery : 
 election case.-- 
 rs of fact, tlie 
 
 the jietition, 
 id doubt that 
 
 tliat the evi- 
 iiidiiig of the 
 ten guilty of 
 ion (iJoiii.) — 
 
 )oiii) — Wliili I 
 
 issued under 
 aiipoiiitiiig a 
 ■ constituency 
 in, the judge 
 lied, has no 
 learing of the 
 I rule of court 
 '. iSovl/i O'rcif 
 , 1 H. K. V. 
 
 3. O., is that 
 s upon which 
 have acted 
 les which his 
 ies him with; 
 1 by the dtei- 
 d trying elec- 
 1, in the same 
 their judicial 
 Wast Toraiilo 
 kx, 1 H. K. V. 
 
 nidcnce to go 
 if sitting as a 
 it ; in similar 
 ) find against 
 
 f an election 
 r day by con- 
 
 sent of the parties, ami bj' an order of the judge. 
 We»t Ehi'm Election (Ont.) — Cascadenv. Munroe, 
 1 H. E. C. 227. 
 
 Where the right of the petitioner to claim the 
 seat is decided adversely in one case, it ia no pre- 
 judice to the resjiondent's case that other charges 
 against the petitioner are not pronounced upon. 
 North Vktorki Election (Ont.) — McJiae v. Sjnith, 
 1 fl. E. C. 253. 
 
 The court cannot grant an interim certificate 
 declaring an election void, as the statute con- 
 templates only one certificate to the speaker, 
 certifying the result of the election trial. Lin- 
 coln Eh'ilion (2) (Ont.)— Pawling v. Bylcert, 1 H. 
 E. C. 489. 
 
 PARTICULARS. 
 
 I. In Actions for Libel or Slander— S'ee 
 Defamation. 
 
 II. I^f Suits for Alimony 
 AND Wife. 
 
 III. In Election Triai.s- 
 TARY Elections. 
 
 See Husband 
 See Parliamen- 
 
 Particulars are no part of the record. .See 
 Davidnon v. The IMh villi' oud Xorth Ilaiitinijs 1{. 
 W. Co., 5 A. K. 315, p. 1C8. 
 
 The iiarticulars of claim upon a writ of sum- 
 mons specially endorsed to which the defendant 
 appears, do not liind the jilaintiff as particulars 
 under a declaration on the common counts, and, 
 in such a case, he must comply with a demand 
 for particulars made by the defendant. Hwiiiinx 
 V. Giuliih Iktrrd Co., 8 I'.R. 170.— Dalton, Q.C. 
 
 PARTIES. 
 To AcfioNS AND Suits— iS'ee Pleading. 
 
 PARTITION. 
 I. Practice, 577. 
 
 II. When Partition Awarded, 579. 
 III. Costs and Commission, 579. 
 
 I. Practice. 
 
 Where in a partition suit commenced by sum- 
 mary application under (J. O. Chy. (540, the in- 
 fants interested in the estate had lieeu joined as 
 plaintiffs, and a sale of the land had taken place 
 tjy public auction : — Held, that the infants were 
 improperly joined as plaintitl's ; that they should 
 have been defendants and represented by the 
 official guardian ; and a reference was directed 
 to the master to fix the guardian's commission as 
 if he had been engaged in the suit from the be- 
 ginning. On consent of the guardian, it was 
 ordered that the proceedings taken for sale, if 
 they proved to be regular, shouhl stand ; but this 
 was not to be a precedent. Brown v. Drown, 9 
 P. R. 245.— Proudfoot 
 
 87 
 
 Under G. O. 640, where special circumstances 
 are shewn on an apiilication for partition or sale 
 of lands, a reference to a master other than the 
 master in the county town of the county where 
 the lands are situate will be directed. The ap- 
 plication under the order should bo made to a 
 judge in chambers. Re Ariiott — ChuVtrton v. 
 Chattn-ton, 8 P. R. 39.— Proudfoot. 
 
 After an order for partition of lands in the 
 county of Peel had been granted by a master 
 under G. O. G41, an order was made liy a judge 
 in chambers to include in said order lands in 
 another county, though such lands were known 
 of at the time the partition order was made. 
 The costs of the application were allowed, exclu- 
 sive of the usual commission under (i. (). 643. 
 Clark V. Clark et ai, 8 P. R. 15t). — Spragge. 
 
 A notice of motion for partition having been 
 served, the plaintiff niove<l for an injunction 
 restraining the defendant from (.'ulU'cting rents, 
 and for a receiver. It ajipeared tiiat the defen- 
 dant was a stranger, whose right to lie in posses- 
 sion was denied : — Held, that no relief coulil be 
 ha<l against him without bill filed. Yutiny v. 
 }r.-i</h/, 8 P. R. 198.— Blake. 
 
 The jurisdiction created by G. <). 640, is in- 
 tendeil to lie exercised in simple cases only where 
 there is no dispute. Where questions are raised 
 of title, or the like, a bill must be tiled. Hue- 
 donell v. McUillii:, 8 P. R. 339. -Blake. 
 
 The fact that an intestate whose estate is being 
 partitioned, has been dead for forty-five years, 
 does not warrant the master in dispensing wich 
 the usual advertiseinent for creditors. Biyjar 
 V. Bi;/:inr, 8 1'. R. 488.— lilake. 
 
 The defendant who occupied the projierty in 
 question, in a partition suit, claimed an absolute 
 title by possession uuder the statute of limita- 
 tions. The master, notwithstanding, continued 
 the inquiry, and proceeded to take evidence. 
 Spragge, C, directed the plaintifi' to tile a bill 
 within two weeks, and the parties to go to a 
 hearing at the then ensuing sittings at ("urnwall, 
 costs to Ijc costs in tlie cause. A'c McMillan — 
 PalterMm v. McMillan, 8 P. R. 546. 
 
 A decree for partition issued by a lonal mas- 
 ter at the instance of a purchaser at sherifF'a 
 sale under an order made Ity a c(uiiity court 
 judge where the interest which h.id been sold 
 was that of one of four tenants in coninion in an 
 ecjuity of redemption in land, which was subject 
 to two mortgages in ditl'ereiit hands, was on appeal 
 reversed with costs. Wood v. Hart, 28 Chy. 146. 
 
 In a partition suit an order allowing substi- 
 tutional service of the bill, on the oHicial guar- 
 dian of an infant defendant, resident without 
 the jurisdiction of tlie court, was granted on the 
 ground that the share of the infant in the lands 
 in question amounted to only $40, and substi- 
 tutional service would be inexpensive. IF eather- 
 head v. Weatliethtad, 9 P. R.^ 96.— .Stepliens, 
 liiftree. 
 
 On an application for the sale of infants' est.ate 
 worth about .S400, under K. S. O. c. 40, an order 
 was made disiiensing with the exaniination of 
 two of the infants who wore out of the jurisdic- 
 tion. Re Lane, 9 P. R. 251.— Boyd. 
 
 An application to consolidate two motions for 
 aduiiiiistratiuu and partition pending before a 
 
579 
 
 PARTNERSHIP. 
 
 IfSO 
 
 local master, should be made to him and not to 
 a jtid)<(! in chambers. Lumbier v. Laiubkr, 9 
 P. li. 422.— lioyd. 
 
 p; 
 
 ■2 
 
 II. When Paktition Awarded. 
 
 The plaintiir, being a trustee for sale, was held 
 not to lie in a iiosition to ask for partition. Kee- 
 fer\. McK(n/,'2i) Chy. 102. 
 
 An ajipliuation for partition or sale of land by 
 plaintiir as one of several heirs was dis'nisscd 
 with costs where the plaintill" before making it 
 knew that a defendant was in possession claim- 
 ing title to the exclusion of the plaintiflF and liis 
 coheirs. Hopkins \. Jlup.'dn.f, P. R. 71. —Boyd. 
 
 An order for partition of the I'ealty was re- 
 fused, wlien the applioation was made within six 
 months of tlie death of tlio person whose estate 
 was souglit to be partitioned. The rule laid 
 down by tlie Partition Act, 11. S. O. c. 101, a. 6, 
 held applicable. Grant v. Omiit, 9 P. R. 211. 
 —Boyd. 
 
 A tenant for life is entitled to a partition, and 
 where tliero is a right to a partition there maj' 
 be a right to a sale as the (Jourt may determine. 
 Lalcr V. Lalur, 9 P. li. 455. — Proudfoot. 
 
 Qu.ipre whether the appellant in this case, whose 
 only interest was tiiat of niortg igee of the inter- 
 est of one S. the owner of iin undivided one-sixth 
 interest in the lands, had any locus standi to 
 bring a suit for partition or to appeal without 
 his co-planititl'. Laplante v. Hcamen el al., 8 
 A. 11. 557. 
 
 III. Costs and Commission. 
 
 Where a master in his discretion fixes the com- 
 mission to be allowed to parties under (t.O. 043, 
 and settles the <lisbursements in the suit, there 
 is an apjieal to a judge in chambers from his find- 
 ing. The disbursements should still be submit- 
 ted to the master in ordinary for revision like 
 other bills of costs. CamiMl v. Caiii/ibetl, 8 P. 
 R. 159.— Blake. 
 
 An order for partition or sale was made nnder 
 O.O. 640, by the master at London, of the estate 
 of one M ., deceased. In proceeding under that 
 order the master .advertised for creditors, and M. 
 & M. sent in a claim for obt.aining letters of ad- 
 ministration, and for defending an action in the 
 Court of Common Pleas, brought by W. M., a 
 defendant in this suit, and entitled to a share of 
 the estate against the administratrix. The mas- 
 ter allowed the claim, and W. M. appealed, on 
 the ground that they were not entitled to prove 
 as creditors in this cause : — Held, that she was 
 justified in defending the suit, and the appeal 
 was dismissed. Mckaij v. McKay, 8 P. R. 334. 
 — I'roudfoot. 
 
 lu partition and administration suits, the com- 
 mission in lieu of costs should be divi<led into 
 equal fractional parts, and the parts allotted to 
 the solicitors in proportion to the amount of work 
 <lone by and the responsibdity imposed upon 
 them. Doilje v. Clapp, 8 P. R. 388.— Proudfoot. 
 
 Objection to the commission allotted may be 
 raised on a motion for distribution without pre- 
 vious notice of appeal being given. lb. 
 
 On a motion for distribution, under the report 
 of the master, an .app ication was made on behalf 
 of the plaintiff for the allowance of a lump sum 
 for the costs ami disbursements of the motion. 
 Boyd, C, made the usual order, .and declined to 
 allow any sum for costs and disbursements, over 
 and above the amounts found in the report. Itv. 
 Fkurii-Fliury v. Fkimj, 9 P. R. 87. 
 
 The sum allotted to the guardian of infants 
 for commission in partition suits should not be 
 measured only by the work done in the master's 
 oltice. Cameron v. Leroux, 9 P.R. 304. — Proud- 
 foot. 
 
 See Clark v. Clark et al, 8 P. R. 153, p. 578 ; 
 Brown v. Brown, 9 P. R. 245, p. 577. 
 
 PARTNERSHIP. 
 I. Liability of Partners to Othkrs. 
 
 1. As to Bills and Notes, 580. 
 
 2. Otlur Cases, 581, 
 
 II. Partnership Contract, 581. 
 
 III. Power of Partner.s, 584. 
 
 IV. Action for Partsersuip Account, 584, 
 v. Dissolution. 
 
 1. Payment of Debts, 58i. 
 
 VI. Death of Partner, 584. 
 
 VII. Aotion!^ and Proceedings Against, 584. 
 
 VIII. Proof of Partnership Dkbts in Insol- 
 vency Proceedings — .'ic Bank- 
 
 RCPTCY and 1n.S0LVEN(Y. 
 
 IX. Qualification as Voters in Right of 
 Partnership Property — See Par- 
 liamentary Elections. 
 
 I. Liability of Partners to Other.s. 
 
 1. As to Bills and Notes. 
 
 A promissory note for ^0,200, made by the 
 president and secret try of a syndicate formed for 
 completing the Hamilton and Dundas street rail- 
 way, in favour of O., S. and the defendants, was 
 endorsed by them to the Bank of Commerce or 
 order. On the d.ay the note fell due O. and S. 
 respectively paid the same, O. paying .S2000, and 
 S. $4200, the remaining sum due thereon, S. at 
 the time directing the bank agent to endorse it 
 to the plaintitf, who it appeared gave no value 
 for it. The .agent endorsed it as follows : "Pay 
 to J. S." the pliiintitf "or order. D. Hughes 
 diaries. Manager." The plaintiff tliereupon sued 
 the defendants as endorsers: — Held, that the 
 plaintitf could not recover, for the evidence 
 shewed that S. by his payment intended to satisfy 
 the note, which being made for a purpose directly 
 relating to and not collateral to the partnership 
 of which S. and defendants were partners, S. 
 could not recover against defendants thereon, 
 and as the plaintiff was found to have only the 
 same right as S., neither could he recover. 
 Small V. Jfiddel et al., 31 C. P. 373. 
 
 Held, that a third person holding a note for the 
 benefit of one joint endorser, cannoi maintain a 
 joint action against the co-eudoraerB under R. & 
 
580 
 
 (ler the report 
 I'ule on behalf 
 f a lump sum 
 f the motum. 
 nd (looliiied to 
 'semeiits, over 
 16 report. Re 
 87. 
 
 ian of infants 
 
 should not he 
 
 I) the master's 
 
 301. — Proud- 
 
 1.5G, 
 577. 
 
 p. 578 ; 
 
 o Otukrs. 
 580. 
 
 581. 
 4. 
 Account, 584. 
 
 !S Again,st,584. 
 
 ")kbts in Insoi,- 
 as— Af:' Bank- 
 
 iTENCY. 
 
 R.S IN RiOHT OF 
 
 EUTY — See Par- 
 
 '10N.S. 
 
 TO Othkes. 
 
 otes, 
 
 ), made by the 
 iicate formed for 
 indas street rail- 
 defendants, was 
 if Commerce or 
 II due O. and S. 
 lying 82000, and 
 e thereon, S. at 
 ut to endorse it 
 d gave no value 
 i follows: "Pay 
 er. D. Hughes 
 F thereupon sued 
 Held, that the 
 r the evidence 
 tended to satisfy 
 purpose directly 
 the partnership 
 ere partners, S. 
 adants thereon, 
 o have only the 
 uld he recover. 
 J73. 
 
 ng a note for the 
 nnot maintain a 
 'serB under U. S. 
 
 581 
 
 PARTNERSHIP. 
 
 682 
 
 0. c. 116, S3. 2, 3, as endorsers for the full amount 
 of the tiote, but must sue each separately in a 
 special action for his share of the contribution : — 
 Held, also, that the Act does not refer to partner, 
 ship transactions. Qiiiore, whetho- the endorse, 
 munt as made by the manager, was sulficieut. lb ^ 
 
 The plaintifT, knowing that the defendants 
 were a tirm of solicitors, advanced to one A. 
 money upon a joint note signed by him and by 
 one of the defendants in the firm's name, with- 
 out the knowledge or consent of his partner. 
 No usage or general mutual authority to sign 
 notc^ in the name of the firm wis proved, ami it 
 w;is admitted that the plaintiff liad no know- 
 ledge of the transactions relied upon to show 
 su'.'li authority, A verdict wan given for defen- 
 dants in the County Court, and a rule nisi to set 
 it aside refused :— Held, that the plaintiff could 
 not recover against both defendants, but that the 
 defendant who signed the note was liable; and 
 the court, having no power on an appeal from 
 the (,'onnty Court to amend the record, allowed 
 the ap[)eal on payment of costs by the appellant, 
 si) far as to direct the issue of a rule nisi, upon 
 the return of which in the court below, tie 
 nec'jssary amendmant could beniide. Semble, 
 pur Burton, .1. A., that even in the case of a trad- 
 ing partnership, a partner has no implied power 
 to give the partnership name to secure the debt of 
 ft third person. WiUonv. Brown ot ft/.,G A.R. 411. 
 
 2. Other Canes. 
 
 Whore S., a partner, had contracted in writing 
 ni tho partnersiii)) iiimj, to sell certain timlier 
 limits, property of the partnership, but standing 
 in his name only, and M., liis co-partner, when 
 informjd thereof, hid not dissented, but had 
 shortly afterwards furnished inform ition to the 
 purchaser, which he was only entitled to ask for 
 as such purchaser: — Held, having regard to all 
 those circuiustmcjs, S. ha I assentoil to the saiil 
 contract, and was bound thereby. It appeared 
 also, that S., who was the muiaging partner, and 
 the purchaser Bubsoipiently put an end to the 
 terms of credit, and agreed to a cash payment of 
 Sn.oOO, part of the purchase money : —Held, it 
 was competent for thorn so to do, and within the 
 power of S,, so far as his co-partner was con- 
 cerned. Held v. Sinilli, 2 O. R , Ciiy. D. 09. 
 
 Liability of sidicitor for fraudulent conduct of 
 partner. See lie McCaujheij ami ]Valsh, Solid- 
 tor,'*, 3 0. R. 425, p. 40. 
 
 See also Birkctt et at v. McOn'trc ct al, 7 A. R. 
 53; 31 C. P. 430. 
 
 n. Partnership Contract. 
 
 The plaintiff and defendants M. , having on 
 hand largo contracts to fulfil, entered into part- 
 nership with the defendant W., under the style 
 of tl. \V. & Co. The articles of agreement which 
 were drawn in the provii. 'c ot O.ue'oee, declared 
 that the plant, which the plaintiff contributed to 
 the partnership, sliould become the property of 
 the said firm, that is to say, "the one-half thereof 
 shall revert to ami belong to the plaintiff and de- 
 fendants M., and the other half to W." The 
 law ot Quebec w.as proved to be that if nothing 
 were provided by the articles as to the owner- 
 ship of the plant, it would be taken out of the 
 
 partnership at the conclusion of the same by the 
 party who had contributed it, before division of 
 proitts. The pUintiff and the defendants M. all 
 swore that the intention was, that they should 
 receive credit for tlio plant as their property in 
 the accounts of the pirtnership. It was shewn 
 also tliat in the treaty for the pirtnership inven- 
 tories of the plant were drawn and its value was 
 discussed, the plaintiff putting it at .$57,130, 
 W. consenting to it being pi ioedatSt0,000. The 
 notary wlio drew the articles swore that if it hid 
 been intended to mike a transfer of the property 
 in tlie plant, he would liive ox|)re3sed such in- 
 tent more explicitly. The book-keeper swore 
 that the plaintiff had claim jil credit in the books 
 for the plant from the lirst, an I thit in discuss- 
 ing the matter with W. a reason iia 1 been sug- 
 gested for not ini:nediately giving such credit, 
 that the plant was under mortgige : — Hehl, that 
 upon tile true conatruotioji of the articles of part- 
 nership as drawn the plant wis witli drawn from 
 the operation of tlio law of Quebec as jn'oved, its 
 ownership being expressly pr.)vi le I for by the 
 instrument ; but that the evidence given by the 
 parties otlier tli m W. was cle ir and s itisfaetory, 
 that a mist ik J had l)een mile in ilrawing the 
 same, and that the articles sliould liive been 
 reformed so as to entitle the pi lintilF to credit 
 for the plant in t iking tlie aceounts ; and on 
 this ground tlie judgrnent of the court below was 
 reversed. Afi'- Ion ifif v. Wtrlhin jfrnt el. al., 7 
 k. R. 531. But see Worthiniilon v. Me Donald, 
 20 C. L. J. 67. 
 
 Eight persons, who had previously been en- 
 gaged in tlii> cattle trade, hcM a meeting in the 
 month of v>etol)er, 18S0, and passed a aeries of 
 : resolutions, prefaced by the declaration that tiiey 
 ! ami four otliors, whose names were mentioned, 
 j proposed to form a cattle dealers' symlicate for 
 j tile ])urpose of exiiorting cattle, to commence 
 witli tlic opening of na\'igation, from Portland. 
 I Tlio res(dutions provided til it eacii member of 
 I the syndicate should in ike a dijp isit of .$5,000 to 
 I tlie credit of the representative of each com- 
 1 pany : Tliat no member nf "this tirm" should 
 do any business outside of the syndic ite in ex- 
 , port cattle except for the l)enetit "of the com- 
 pany :" That no iiiemher of the syndicate should 
 I appoint any person to buy cattle except approved 
 ; oi l)y tlie ma'()rity of the members : That each 
 i member should take the position assigned him 
 by the niijority of the syndicate: That the 
 ' syndicate should be divided into two coinptknies, 
 I each to consist of six members (whose names 
 1 were mentioned) : That no member shouhl be 
 admitteil to the syndicate without the approval 
 of all the members : That none of the cattle 
 spice which was then taken should be sub-let 
 without the approval of the syndicate : That 
 the profit or hiss shouhl be ecjually diviiled, 
 share and share alike, between all the members 
 ' of the syndicate. All the contemplated mem- 
 ; bers of the proposed symlicate except one signed 
 the resolutions. One of tlr "inns was already 
 ' in existence, the other wu.-. o.. be thereafter 
 I formeil. The one alroaily existing comprised sir 
 ' members of the proposed syndicate, and was 
 ' called Thompson >& Co., the other subse |uently 
 I formed was composed of live members of the pro- 
 I posed syndicate, and was called Craig & Co. 
 ! These two firms proceeiled to buy i\w{ expoi-t 
 I cattle ; each opened separate bank accounts. The 
 i tirm of Craig & Co., dealt with the phiintiffa and 
 
5B3 
 
 PARTNERSHIP. 
 
 584 
 
 «: 
 
 IMt. 
 
 k 
 
 
 obtained advances. From tlic evidence it ap- 
 ])eiirc<l that tlie i)l:iiiititlH liad knowledge! of tlie 
 resolutions aliove retVned to, liut opened the 
 iieconnt solely with the liini of t'raig 6; (,'o., and 
 Mie uieniheis of that liiui, from whom alone tliey 
 took security ; and it a]ipoarc<l by the evidence 
 tJiat, notwithstanding the form of the lesolu- 
 tions, the arrange nienteontempLited thereby was 
 ti eated by the parties as still open and as a mat- 
 ter of negotiation to be completed by some future 
 agreement ))etween the pajties, and to perfect 
 which meetings were from time to time held ; 
 and afterwards, at a sulisecjuent meeting of some 
 of the members of the lirni ot Craig i^ Co., and 
 'Ihompson iV Co., on i.'(jth Ajiril, IhiSl, a formal 
 agreement was drawn up, purporting to be 
 made between the indivnhials conipiising the 
 firm of Ihompson it Co., of the lirst part, and 
 the ineliviihials eomp<i.sing the tiini of Craig & 
 Co. ot the second pa.'t, which jirovided for the 
 two firms carrying on their bn.siness of cattle ex- 
 porters in co-operation with each other, ami for 
 «lividing between the two firms tlie net profits 
 and lo.sses of the two lirma respectively, from 
 bth iJeeember, ISSO, and containing a declara- 
 tion that neither company should be liable for 
 any ilebts or liabililies (jf the othei- company, and 
 that nothing tlierein containe<l should create a 
 partnership Ijctweeii the two companies. This 
 agreement was signed by all tlie parties except 
 two of the members of 'Ihcmipsou &. Co., who re- 
 fused to sign it. The two linns continued to 
 carry on bu.'^iness as cattle expoi t(;rs, each on its 
 own account. A paper purporting to be a copy 
 of the agreement was funiislied to the plaintiUs 
 l)y Craig & Co., whercf)y it ajipeared to be 
 signed by all the jiarties to it, But the plaintitls 
 were subsequently informed of the refusal ol the 
 two to sign it, and tlierealter niacUi further 
 advajices to the linn of Craig & Co. — Held, that 
 the refusal ol two of the mendiers of the tirm of 
 Thompson & Co. to sign the agreement of .lUth 
 April, 1881, rendered it inoperative, not only as 
 to those refusing to sign it, but al.Mj as to tlmse 
 who had signed it, and that until all had signed 
 it was not a complete agreement : — Held, also 
 that those who actually signed the agreement 
 could not thereby bind their co-partners who did 
 not sign it : — Held, also, that even if the agree- 
 ment had been comjileted it did not constitute a 
 partueiship betw cen the two firms, so as to en- 
 able one linn to pledge the other tirni's credit, 
 for advances in carrying on the tratle : — Held, 
 also that the provisiejii for sliaiing profits and 
 losses, which in an ordinary trading association 
 where there is a coninmnity of capital and stock- 
 in trade, and a coninK)n undertaking, is conclu- 
 sive e\idence ol a jjaitncrbhip, is nevertheless 
 not a conclusive test of partnership ■where there 
 is an extraordinary adventure between two 
 partnerships presenting a well deiuitd and well 
 known separation of interests and ownerships: — 
 Hehl, also, that the way in which the protits are 
 to be participated in is the esseciie of the matter, 
 and that when the right to call for a pro[iortioii 
 of the p)-olils arises by virtue ol an express con- 
 tract to that elleet, which woulil not otherwise 
 How from the iclations of the parties, the right 
 exists (jua liebt, and not by viitue of partner- 
 ship :— Held, also, that even assuming that the 
 agreement ol HOth April, constituteii a partner- 
 ship between the two lirnis,yet that the plaintitls, 
 ■with knowledge of all the lacts, by electing to 
 give credit to Craig & Co. alone, w ere precluded 
 
 from thereafter resorting to Thompson & Co. 
 The Merchants' Bank v. Thompnon — Mullon v. 
 Oo/y, 3 0. K.,Chy. L>. 541. 
 
 Where one W. was induced to become a mem- 
 ber of a Hrm, on the faith of representations 
 made to him that the previous losses ot the liim 
 only amounted to $18,000, but it subscciuently 
 turned out that such losses amounted to about 
 !f2iJ,0(<0 or !S'J4 , 000 :- Held, that M. by reason 
 of such misrepresentation was entitled to be 
 relieved from such agreement, and to be indem- 
 nified by the other members of the firm against 
 all liabilities incurred by him as suchpaituer, 
 piior to the discovery of the untruth of the re- 
 presentation made as to the losses of the tirm. lb. 
 
 Held, also, tliat M. having become a partner 
 also on the faith that the tirm in question intend- 
 ed to form a syndicate arrangement with another 
 tirm, w liich arrangement tailed to be carried out 
 for want of the concurrence of some of the 
 members of such other firm, he was on that ac- 
 count also entitled to be relieved from his agree- 
 meut to become a partner. lb. 
 
 III. Powi'.K oi' Partners. 
 
 The assignment for the benefit of creditors was 
 executed by one partner, at the request of his 
 copartner, in the partnership name, and was 
 made at the reejuest ot several creditors : — Held, 
 that the assignment was properly executed, and 
 that there was sutiicient assent of the creditors. 
 Ao/c(H v. DuHndhi et al., 4 O. K., C. P. D. 410. 
 
 IV. Action for Partxebship Accoint. 
 
 Where, on the dissolution of a partnership be- 
 tw cen the plaintitl and defendant, it was agiced 
 that the deleiulant should wind up the concern, 
 and the plaintiff' having demanded a statement of 
 account, the defendant rendered an untrue and 
 imperfect one, wliereupon the plaintitl' brought 
 this action for a winding-up, claiming that the 
 defendant was indebted to him on account of 
 partnership assets received, w liicli the deleiulant 
 denied, and the plaintiH succeeded :— Held, that 
 defendant nuist pay the costs of the suit. Car- 
 mkhuei v. ."ihuiji, 1 O. P., Chy. H. aSl. 
 
 Action for partiiership account. — Parred by the 
 statute. See Cotton v. MitdiMtt al., 3 0.1!. 421, 
 p. 438. 
 
 V. Dissolution. 
 
 1. Paijhii nt of Dthls. 
 
 See/?'' Walhr, an Inxolnnf,GA. B. 101), p. (iO. 
 See also Birkdt ct al. v. ilcUnirt t-t al. , 7 A. ii. 53. 
 
 VI. Death of Partner. 
 See Davidnon v. Puiiiik, 28 Chy. 91, p. C8. 
 
 VII. Actionk and Proceedings against. 
 
 In a suit by an infant partner against his co- 
 lartner j racing for di.-bolutiou, receiver, refer- 
 ence, A.C,, alter a deciee pro e(jnfesso, and during 
 the taking of the accounts under an agreement 
 for the continuance of the partnership business 
 
584 
 
 mpson & Co. 
 1)1 — Million V. 
 
 LCdine a uicm- 
 incsciitalioiis 
 btB ot tilt liim 
 biibscHjutiitly 
 nted to iibout 
 M. by ruiison 
 ;lititleil to be 
 I to be iinlem- 
 e liim against 
 bucli pal tuer, 
 uth oi tlie re- 
 al' the tinii. lb. 
 
 )ine a partner 
 itstioii iiittiid- 
 t with another 
 be carried out 
 some ol the 
 vas on that ac- 
 from his iigrec- 
 
 if creditors was 
 re((iiest of his 
 anie, and was 
 iitors :— Jield, 
 executed, and 
 the creditors. 
 C. l\ i). 440. 
 
 p Account. 
 
 partncri^hi^lhe- 
 ;, it was a^iecd 
 ij) the conciiii, 
 L a statement of 
 an untrue and 
 laintiti laought 
 liming that the 
 on account of 
 h the defenilant 
 d:— llehl, that 
 tlie suit. Car- 
 
 D. asi. 
 
 — I'.arredbythe 
 a/.,3 0.J;.4-Jl, 
 
 LK. IC!), i>. f.O. 
 !((/., 7 A. li. 53. 
 
 KR. 
 
 y. 91, p. 58. 
 
 O.S AOAI>>T. 
 
 against his co- 
 receiver, refer- 
 ;sso, and during 
 ' an agieiiiieiit 
 ership business 
 
 :5^5 
 
 PATENT OF INVENTION. 
 
 Bser 
 
 for thit purpose — certiia creditors of the firm 
 o))t;uiii;d jiidg'inents and executions at law against 
 the pirtner of the infant who was not informed 
 oi thoio prooeodings nutil the sheriff had seized, 
 and was about to sell, the whole of the partuer- 
 norship property : — Field, on motion for injunc- 
 tion, that the proceedings at law were not 
 within the provisions of R. S. O. o. X'l'A s. 8, and 
 that the sale should be restrained : — Held, also, 
 that tiie execution creditors might be made par- 
 ties for that purpose on motion simply. Yoiinij 
 V. Ifiiher, 29 Cliy. 49. 
 
 Blakeslce, Brown <fe Co. carried on business in 
 partiiership, under the name of Blakeslee & Co. 
 Blakeslce absconded on the 19th September, and 
 the business continued. O. assii,'ned ids interest 
 to Brown, and after such iissigninent, but before 
 it had been made pulilic, tlie plaintilf served his 
 writ of summons against the lirm on (). : — Held, 
 th it the service was tjood. B'liik of HaniiUon v. 
 Blake 'fi'i; ct al., 9 P. R. 1.30.— Daltou, .Uader. 
 
 On a reference to take an .-".count of partner- 
 ship dealings the report found that the plain- ' 
 till' had contributed to the partnership capital : 
 SS7.;{!», and the defenilant .S23:5.89, and that I 
 there was due from the defendant to the plaintift" 
 §43.74. The taxing officer taxed the plaintiff's I 
 costs uiiiler the h)wer scale, on the ground that ' 
 the ease came within C. S. U. C. c. 15, s. .34, \ 
 suh-s. 1. On appeal, Cameron, J., reversed the 
 taxing officer's ruling. Blancii v. McGrath, 9 
 
 r. It. 417. 
 
 PARTY WALLS. 
 (See BuiLDiyoa. 
 
 PATENT OF TNVENTIOX. 
 
 I. COMBIN.VTIOV AN'D NoVELTY, 585. 
 n. ASSIGNMEXT AN'D RoYALTr, 58G. 
 
 in. Infrimikmen't. 
 1. Action for. 
 
 (a) Venue, 587. 
 
 (b) Other Cases, 588. 
 
 I. CoMBIN'ATrO.V AND NoVELTY. 
 
 In November, 1879, the plaintiff obtained a 
 patent fo; a new and useful improvement in 
 Dakers' ovens, which w.as expressed to bo " In 
 combination with a bakers' oven, a furnace, 'D,' 
 8 t within tlie oven but below the sole, 'A.'" 
 This patent he surrendered, and a now one issu- 
 ed in August, 1880, on the ground that the first 
 was inoper.ative by reason of the insufficiency of 
 the description. The new patent was for the 
 unexpired portion of the five years covered by 
 the first patent. The claim of invention, as set 
 forth in tiie specificati •,, was : " (1) In a fire-pot 
 or furnace placed within a baker's oven below 
 the sole thereof, and provided with a door situa- 
 ted ai)ove the grate. (2) In a (ire-pot or furnace 
 placed within a baker's oven, provided with a 
 Qoor above the level of the sole of the oven, and 
 •connected with the said furnace by an inclined 
 
 guide. (3) In a flue, ' H.' leading from below 
 the grate, ' B.' to the flue, ' E.' (4) In a baker's 
 oven provided with a circular tilting grate situa- 
 ted below the sole of the oven, and provided 
 with a do(H\ (5) In a cinder grate, ' l*".' placed 
 beneath tlio firegrate, ' B.' in combination with 
 a flue, ' H. ' " The iilaintifT, in his specifications, 
 claim mI all these as his inventions ; in his evi- 
 dence he elaini >d each of the combinations to be 
 the subject of the patent : — IIcM (I), if the plain- 
 tiff w.is correct in the latter view, that the last 
 four combinations being new, the first patent 
 could not have been ino[)crative .as to them ; and 
 the second patent in resjiect of those must be 
 construed as an independent one, issuing for the 
 first ti no on its clatj, and as all ot'icr than the 
 first combination ha I been used for upwards of 
 a year prior to the patent, he was not entitleil 
 to a ])iteiit therefor ; (2) that the 5tli combina- 
 tion of previously known articles, .as applied to 
 a baker's oven, which was ])rodnctive of results 
 which were now and us'^ful to the trade, was a 
 subject of a patent. HniUerv. Ccirrkk, 28 Chy. 
 489. 
 
 Some of the devices were in use before the 
 patent, but numerous witnesses eiigigoil in bak- 
 ing testilieil that th.iy never knew of the combi- 
 nation befor.! the plaintiff's invention : — Held, 
 that the defence for want of novelty failed, lb. 
 
 Held, also, that the first combination in the 
 patent of ISSO was such an iunendmentas is con- 
 templated by the Act, 35 Vict. c. 2(5, s. 19. Jh. 
 
 The <lefend.ant's oven was completed early in 
 ^nly, 18S0, and before the re issue of the plain- 
 titt''s patent ; she had in use the first and fourth 
 combinations, and continued to use them after 
 such re-issne : — Held, tiiat there was not any 
 remedy for the intermoiliito user, as the patent 
 was then inoperative ; but as to any subsequent 
 infringement, the user under a defective patent 
 could not operate as a defence. lb. 
 
 Tiie plaintiff claimed as his invention, for the 
 purpose of purifying flour during its manufac- 
 ture, a b(dting chjth or sieve, through which a 
 current of air was forced upwards by ine.ans of 
 an air chamber and a fan, or substitute therefor, 
 and, in order to keep such sieve from becoming 
 clogged, a brush, or a numV)er of brushes, ar- 
 ranged in such a manner as to traverse the under 
 service. Tiie air chamber and the fan combined 
 with the bolt or sieve were admittedly old : and 
 it appeared that one B. had patented a machine 
 which was in use in the manufacture of semolina, 
 111 which a similar brush arrangement w.as in use 
 for the purpose of keeping open the meshes of 
 the sieve when used: — Hold (affirming the judg- 
 ment of Spragge, C), that the plaintiff's inven- 
 tion was not patentable. Quiiere, as to the effect 
 under 35 Viet. c. 26, s. 28, D. of a <lecision of 
 the minister of agriculture. Smifh. v. Goldie et 
 al., 7 A. R. (528. Affirmed in the Supreme Court. 
 Special leave to appeal to Her Majesty in Coun" 
 cil in this case was refused. 
 
 See Owens v. Taylor, 29 Chy. 210, p. 587. 
 
 II. Assignment and Royalty. 
 
 The mere attaching of the support of the 
 handle of a pump higher or lower in position thiMi 
 that formerly in use, is not the subject of a 
 
B87 
 
 PAYMENT. 
 
 588. 
 
 r 
 
 ■■•4. 
 
 
 
 m, 
 
 patent ; but P. having obtained a patent there- 
 for, wLich he assigned to the phu?'tiH', w ho again 
 i.ssigned to the defendant subject to certain 
 royalties : — Hehl, that notwithstanding the in- 
 validity of the patent he was entitled to recover 
 the amonnts jayable to him under the agreement 
 during the currency thereof. Oicnin v. Taylor, 
 29 Chy. 210. 
 
 Where G. granted the exclusive right to nianu- 
 facture a certain patented article to W., and 
 covenanted that K., the original patentee of 
 whom f>. was assi;;nee, would '• warrant and de- 
 fend" W. ill ''.-• ' ' Hsion of the patent right, 
 and thai iM{ i+.t'd or refused to "x>rotect 
 
 and defenii ' ' i" areable possession of the 
 
 said patent i.^a,, .ii.ii tlie royalty to be paid l.y 
 W., as tiie consider.ition for the said grant, 
 Bhould cea«c -Held, (i. v.as liable under this 
 covenant only ii I; reglci t> ■' +o defend \V. as 
 against all percons ii. . ing .m._ .-ght to manufac- 
 ture or sell the patented lutuk Mot as against 
 mere wrong doers :— Semble, if there had been 
 breach of the covenant by G., the defendant 
 wouhl not have been liable to pay the royalty 
 under the above agreement, though he had con- 
 tinued to manufacture the patented article. 
 Gmii ft III. V. (r«^o», 2 (). K., Chy. D. C27. 
 Affirmed in appeal. See 20 C. L. J. 285. 
 
 The plaintifl', the owner of a patent for an im- 
 proved pump which had only about a month to 
 run, but was renewable for two further terms of 
 five years each, sold the same ; together m ith 
 certain freehold and chattel property, to the de- 
 fendants for §4,500, of which !i?l,500 was paid 
 down, and a mortgage given on the property for 
 the residue :— IJeld, (reversing the decree of the 
 court below, Patterson, J. A., dissenting), that 
 under the circumstances ajipearing herein and in 
 the court below, (20 Chy. 322) all that the pur- 
 chasers could claim was the right under the 
 patent for the remainder of the iirst term of five 
 years. Per Patterson, J. A. Under the agree- 
 ment and assignment set out in his judgment, the 
 defendants were entitled to the extensiuu as well 
 aa to the current term. Powell v. Peck; 8 A. R. 498. 
 
 (b) Other Cases. 
 
 An action for the infringement of a patent 
 should not ordinarily be tried by a jury. I'er- 
 viilyea v. Guthrie, 9 P. K. 2C7.— Boyd. 
 
 In an action to restrain the infringement of a 
 patent, in which the defence setup that the sup- 
 posed invention had been previously patented ia 
 the United States anil England, copies of Am- 
 I erican patents material to the defcndimt's case 
 were procured by his solicitors of their own 
 motion for the purposes of the action :— Held, 
 that such documents were privileged from pio- 
 duction. The Giieljih C. Co. v. Whitehead, It P. 
 K. 509.— Dalton, Mader. 
 
 III. Infringement. 
 
 1. Action for. 
 
 (a) Yen ue. 
 
 In an action for the infringement of a patent, 
 
 Slaintiff laid the venue in Hamilton, while the 
 efendant was a resident of Toronto : — Held, 
 that regarding the languiige of sec. 24 of the 
 Patent Act 1872, the venue should be laid in the 
 county where the defendant resided ; and an 
 order was made under Kule 254, to change the 
 place of trial to Toronto. GoLdnmilh v. Walton, 
 9 P. R. 10.— Osier. 
 
 Held, that the word " may " in 35 Vict. c. 26, 
 1. 24, D., was obligatory and not merelj' permis- 
 sive, and that the venue in an action to restrain 
 the infringement of a patent, must be laid at the 
 place of sittings of the court in which the action 
 IS brought, nearest to the place of residence or 
 business of the defendant : — Held, also that sec. 
 24 was not ultra vires of the Dominion parlia- 
 ment. AitchenoH v. Mann, 9 P.R., Q.B.D. 473, 
 253. 
 
 PAWNBROKER. 
 
 Remarks upon the law relating to pawnbrok- 
 ers. Peyina v. Aihivm, 8 P. R. 402.— Cameron. 
 
 A pawnbroker under C'.S.C, c. 61, may legal- 
 ly charge any rate of interest that may be agreed 
 upon between him and the pledger. lb. 
 
 PAYMENT. 
 
 I. To Cheuitors. 
 
 1. 7'ime of Payntetit, 588. 
 
 2. A]ij>roprialion of Payvunts, 588. 
 
 3. By Cheque, 589. 
 
 4. Of Hit In or Note,s—S(e Bills ok Ex- 
 
 change AND PUOMISSCKY NoTLS. 
 
 5. Of Mortgages—See Mortgage. 
 
 G. ?'o Sure the b^tattite—SeeLninXTlOS 
 OF Actions and Suits 
 
 II. Payment o ' Money into Court. 
 
 1. In Suits, 589. 
 
 2. Other Casen, 589. 
 
 3. On Salt of Land by Order of the Court 
 
 — See Sale of Land bv Oudeu of 
 tue coukt. 
 
 Payment of Money out of Court. 
 
 1. Generally, 589. 
 
 2. Paid in aa Security for Costs inudivg- 
 Ai>peal — See Costs. 
 
 Ill 
 
 I. To Creditob.s. 
 
 1. 7'ime of Payment. 
 
 Where money is lent to be repaid when the 
 borrower is able, his ability may be 8he\\ n by a 
 slight amount of evidence such as is open to 
 public observation of a flourishing condition of 
 his aifaiis, and it is not necessary to shew that 
 the borrower is in a position to discharge the 
 debt without inconvenience. Pe Ross, 29 Chy. 
 385. 
 
 2. Appropriation of Paymenta, 
 
 See Birkttt et at v. McGuire et at, 31 C. P. 430;; 
 reversed by 7 A. R. 53. 
 
588 
 
 ; of a patent 
 jury. I'er- 
 Joyd. 
 
 iiigcnicnt of a 
 tliiit the sup- 
 ily patented ia 
 ijopies of Am- 
 ^fi'iidiiiit's case 
 of tlieir own 
 otion :- Held, 
 ged from pro- 
 '/liUluad, !» P. 
 
 589 
 
 PENAL ACTIONS AND PENALTIES. 
 
 590 
 
 to pawnbrok- 
 G2. — Ciaiaron. 
 
 61, may legal- 
 may )je agreed 
 r. lb. 
 
 3. % Cheque. 
 
 loHs, 588. 
 
 BlLL.S OF EX- 
 SOHY KoTi:s. 
 
 iRTOAOE. 
 
 Sie Lijui ATiON" 
 
 'S 
 
 Court. 
 
 derof lhi> Court 
 
 BY OlibElt OF 
 3F COUET. 
 
 r Costi loulwg 
 
 tpaid wLeu the 
 
 be shew n by a 
 
 as is open to 
 
 ig condition of 
 
 y to sliew that 
 
 discharge the 
 
 Jivug, '2'J Cliy. 
 
 nenta, 
 
 I, 31 C. P. 430p 
 
 A cheque of the plaintiffs when produced at 
 the hearing, had written on it, ''in full of all his 
 (the defendant's) claims for notes or otherwise," 
 and which 'vords the plaintiff swore were on the 
 cheipie when sent to the defendant, which he 
 denied, however. Four crosses were on the face 
 of the cheque, and some initial letters in the 
 uiivfgin, and these the plaintiff stated were the 
 initials of the clerk in the l>ank, whom he had 
 requested to initial the words so introduced : 
 The Court (Si)ras.'o;« <'.,) refused to receive this 
 as evi eive of a receipt in full, in the absence of 
 the bank clerk, who sliould have been called as 
 a witness. lAviiujsloiie v. Wood, 27 Chy. SIT). 
 
 Of I'remium on life policy. See Neill v. The 
 Union Mutual Life Ins. Co., 7 A. R. 171, p. 378. 
 
 II. Payment of Money ikto Court. 
 
 1. In Suits. 
 
 Where there were cross-actions, in one of 
 which a sum had been reported due and a claim 
 of set-off had been disallowed, in a subsequent 
 action brought to recover the sum disallowed, 
 the plaintiff was held entitled to move for judg- 
 ment under l{ule 324. But the aHidavits tiled 
 on the motion being conflicting : — Held, the 
 action must be entered for trial at the sittings I 
 for the examination of witnesses, but the amount '' 
 found due in the tirst action was ordereil to be ( 
 paid into Court, to abide the result of the second 
 action. Francin v. Francin, 9 P. R. 209. — Proud- 
 foot. 
 
 Where the ])laintiff in an alimony suit ob- 
 tains a writ of arrest and the defendant gives 
 bail and a breach of the bond is committed, the 
 plaintiffis entitled to have the amount for whicli 
 the writ was marked, paid into Court, to be ap- 
 plied from time to time in payment of the 
 alimony and costs. Needham v. Needham, 29 
 Chy, 117. 
 
 2. Other Cases. 
 
 The Referee in Chambers has no jurisdiction 
 to make an order for payment into Court by an 
 executor or administrator of amounts admitted 
 by him to be in his hands. Be Curry, Wriijht 
 v. Curn/ ; Currie v. t'urrie, 8 P. 11. 340! — 
 Holmested, Referee. 
 
 Interest on money deposited in Court. See 
 Wilkins v. Oeddes, 3 S. C. R. 203, p. 386. 
 
 III. Payment of Money out of Court. 
 
 1. Generally. 
 
 Eight to recover back money paid out of court 
 on judge's order pending appeal. See Citizens' 
 Ins. Co. V. Parsons et al., 32 C. P. 492, p. 175. 
 
 Where money is paid into court under an order 
 giving leave to "apply at Chambers" for its 
 p.ayment the referee has jurisdiction to make 
 the order for payment out. In re Selby, 8 P. R. 
 342. — Holmested, Referee. 
 
 Where a party is entitled to an assignment of 
 a bond, and to realize it for his own benefit, his 
 rights are the same in regard to money deposited ; ■ 
 
 \ and where in an alimony suit the statutory bond 
 under a writ of ne exeat has been given, the 
 jiiaintiff is entitled to have the moneys deposited 
 as collateral security therefor, paid into court, 
 and applied in discharging arrears of alimony. 
 Hicharihnn v. llhhardson, 8 P. II. 274. — Proud- 
 foot — Spragge. 
 
 About SIO.OOO was paid into court during the 
 progress of the suit. The decree dismissed the 
 bill, and ordered payment of the nioiicy in court 
 to dcl'endant. The plaintiff appealed, and paid 
 .§490 into court as .security for costs. Subse- 
 quently an order was made by the refureo stay- 
 ing payment out to the defendant, pending the 
 appeal, upon the plaintiff giving addition;d secu- 
 rity to tlie amount of .§200 for the dillerence 
 between the legil interest and that allowed by 
 the court : — Held, on appeal that sucb<inler was 
 not ultra vires nor unreasonable. McDonald v. 
 Worthinijtun, 8 P. P.. 554.— Ferguson. 
 
 The plaintiffs having moved for an injunction 
 to restrain the sale of goods under execution, the 
 motion was enlarged and the sale permitted to 
 proceed, the money arising therefrom l)eing di- 
 rected to be pai<l into court to the credit of the 
 cause, there to aliida the further order of the 
 court. The injunction was afterwards refused : 
 — Held, on appeal from the referee, ordering pay- 
 ment out, that the payment out of the finid was 
 discretionary with the court, and that pending 
 the appeal to the Court of Appeal tiie same 
 should remain in court, but might be paid out on 
 proper security being given. Held, also, no ob- 
 jection that the order refusing the injunction, 
 and the onler for payment out had not been 
 entered. Kimj v. Duncan, 9 P. H. Gl. — Ferguson. 
 
 An order was made in this matter by the re- 
 feree in chambers before the passing of the O. 
 J. Act directing certain ascertained sh.ircs then 
 in court to be paid out to cert.iin iiif.mts as they 
 respective]}' came of age : — llcl<l, that the shares 
 might be jtaid out without any further order, not- 
 withstanding Rule 424, O. .7. Act. Re Cameron, 
 Infant.'', 9 P. H. 77.— Proudfoot. 
 
 Where money has been paid into court for a 
 specific purpose, and tliat purjjose has been 
 answered in favour of the i)arty paying it in it 
 will be paid out to that parly. McLaren v. 
 Caldwell, 9 P. R. 118.— Proudfoot. 
 
 As to jurisdiction of master in Chambers. See 
 Re Devltt, 9 P. R. 110. 
 
 Payment into bunk to credit of wrong cause. 
 See Johnston v. Johnston, 9 P. R. 259, p. 472. 
 
 PENAL ACTIONS AND PENALTIES. 
 
 Against Magistrates— See Justices of the 
 Peace. 
 
 An order for security for costs cannot be ob- 
 tained in an ajtion for penalties under K. S. O. 
 c. 50, 8. 71, upon the affidavit made by the C i- 
 fendant's attorney. That section of the C. L. P. 
 Act requires the affidavit to be made by the 
 defendant persfinally. An application made 
 upon the affidavit of the solicitor of the defen- 
 dants, a corporation, was refused. Mnriin qui tam 
 V. The Consolidulid Bank; 45 Q. B. 1()3. 
 
m 
 
 51)1 
 
 PETITION OF RTGIIT. 
 
 692 
 
 mi 
 
 
 \m 
 
 Action to rcmvor ponalty from a I'ojmty ro- 
 turiiiii;; otiiccr miller ."{7 Vict. i;. !), h. 108. Doin. 
 Hut: ('iiiiif-oii V. C/iifiiK, 1'. 1{, 40"), p. fyl'. 
 
 Til [)tri.il st:itiit(!M (|iK>sti"ii.s of (l(iiil)t iiru to l)o 
 coiistrurd favoiir.ilily to tliu acciisiii, iuid wlicro 
 the ooiirt of lirst iiiHtauuc^ in a (jiiasi (■riiiiin.il 
 trial has aiMjuitti'(l tlif ^^^s])olll^•llt, tiir a|i|nllatu 
 court will not i-ovrsc liis iillliill;,^ .Surtli (hittt- 
 rill Kln-lif.ii (Oiil.)--.ycCad-ill v. I'luloii, 1 11. 
 E. C. 304. 
 
 PEX/M/rv HV CONTIIACT. 
 
 The ilcfciidaiit, who had tro^|iasisod on the 
 plaiiitin'H land liy |il;i('iiin S'toin"; and coiiuik'Hi:- 
 ing to l)nild a stone fi iicc! thcvr'oii, ciitiTt'd into 
 an aijrci'nii'nt to n^novc; the sum; lufore the loth 
 of Itccenilior, tinlfss, upon a rc-snrvey, wdiioh he 
 had the privilej,'e of having made before tlu^ 
 15th !Novenilper, it was fiuiiid that the liiK! run 
 Ijy one S. , a surveyor, was not the eorreet line, 
 or unless defendant should fail to have such re- 
 survey; and he agreed " to ji.ay to the plaintilf 
 the sum of .S'J(M) as li(|ui<l,ited damages if the said 
 St.jues and stone fenee are not removed, as hen'- 
 inbef(U-e agreed, at the tiuujs mentioned in this 
 agreement " :-llelil, athrming the judgment of 
 the (^'ounty ( 'ourt, that the sum nu^ntioned was 
 not a penalty, hat lii|uidated damages for the 
 omission to perform a Rjieeitie act, viz., the re- 
 moval of the st<me3 and stone fence. (V((/</ v. 
 Dilloii, (i A. II. lie. 
 
 See Till' Cor/iDriifini) of Iho Viffic/c of JJrii.il.<i.i 
 V. L'onald ,lul., 4 O. K. 1, p. 487.' 
 
 PERPETUITY. 
 
 See. Will. 
 
 PETITION. 
 
 See MUNIOIPAL OORPOK.ATIONH — PaRLTAMESTARV 
 
 Elkctions — Quieti.vo Title.><. 
 
 PKTITION OF mauT. 
 I. l.s Cases oe CoNTRAtT, 501. 
 11. In DrnER Ca.se.s, 596. 
 
 III. I'LEADINIJ, 599. 
 
 IV. C08T.S 000. 
 
 I. In Cases of Contract. 
 
 The suppliant engaged by contract under seal, 
 dated 4tli I )ecember, 1872, with the minister of 
 public works, to construct, finish and complete, 
 for a lump sum of $78,000, a deep sea wh.irf at 
 Eichniond station at Halifax, N. 8., agreeably 
 to the plans in the engineer's oflice and specifi- 
 cations, and witli such directions as should be 
 given by the engineer in charge during the pro- 
 gress of the worK. By the 7th clause of the con- 
 tract no extra work could bo performed, unless 
 * ' ordered iu writing by the engineer in charge 
 
 before the execution of the work." By letter, 
 dated 'Jlith August, 1873, the minister of ]>ublic 
 works anthori/,ed the suppliant to make an addi- 
 tion to the wharf by the erection of a superstruc- 
 ture to be used as a coal lloor, for the adilitional 
 sum of !*1H,4(K). Kurther extra work which 
 amounted to Ji<'2,781, was performeil under 
 another letter from the jiublie woiks depart- 
 ment. The work was completed and on the 
 final certificate of the govt^rnmeiit engineer in 
 (diarge of the works, the sum of .'Jit.fiSI, as the 
 balance due, was paid to the sujipliant, who gave 
 tlu! following receipt, dati^l ;tOth April, 1875: 
 " Heceiveil from the lntenM)lonial railway, in 
 full, for all amounts against the government for 
 ! works under contract, as follows : ' Richmond 
 I d(!ep water wharf works for storage of cf)als, 
 work for bracing wharf, reliuildiiig two stone 
 i cribs, the .sum of .'ii>9,(iSI.' " The suppliant sued 
 for extra work, which he allegeil was not covered 
 by the payment made on tin; 30th April, 1875, 
 and also for damages caused to him l)y cleficiency 
 in and irregularity of payments. The pcitition 
 I was dismissed with costs ; and a rule nisi for a 
 new trial was subse(|uently moved for and dis- 
 I ch.irgcd : — Held, atiirming the judgment of the 
 ! court below, that all the work nerforuK.'d by the 
 su](|)liant for the government was either contract 
 ' work within the plans or apt^cifieations, or extra 
 I work within the meaning of the 7th clause of the 
 I contr.act, and that he was paid in full the c(m- 
 tract price, and also the price of all extra work 
 ' for which he could ju'oduce written authority, 
 I and that the written authority of tin; engineer and 
 i the estimate of the value of the work wereccmdi- 
 tions precedent ti) the right of the su])pliant to 
 recover payment for any other extra work. 
 (Henry, . I., dissenting.) O'Jirlni v. The Queen, 
 4 S. (J. K. 5L'!). 
 
 Per Ritchie, C.J., that neither the engineer, 
 nor the clerk of the' works nor any subordinate 
 oflicer in charge of any of the wo:k^ of the Domi- 
 nion of Canada, have any power or authority, 
 express or implied, under the law to bind the 
 Crown to any contract or expenditure not speci- 
 ally authorized by the express terms of c(mtract 
 duly entered into between theCVov.'ii and the 
 contractor according to law, and then only in the 
 specific maimer provided for by the express terms 
 of the contract. Jb. 
 
 On the 25th May, 1870, J. and S., contractors' 
 entered into a contract with tin; Intercolonial 
 Railway Commissioners (authorized by 31 Vict., 
 c. 13) to construct and complete section No. 7 of 
 the said Intercolonial Railway for the Ijomiaion 
 of Canatla, for a bulk sum of ,§.")"i7 ,750. During 
 the progress of tb.e work, changes of various 
 kinds were made. The works were suHiciently 
 completed to admit of rails being laid, and the 
 line opened for traffic on the 11th Nov., 1872. 
 The total amount paid on the JOth Feb., 1873, 
 was §557,750, the amount of the contract. The 
 contractors thereupon presented a claim to the 
 commissioners ainountini i ■.■?! Mi, 403.83 forextra 
 work, &c., beyond what u.is included in their 
 contract. The commissioners, after obtaining a 
 report from the chief engineer, recommended 
 that an additional sum of .^31,091.85 (less a sum 
 of .$8,300 for timber bridging not executed, and 
 .§10,354.24 for under drain taken off contractor's 
 liands) be paid to the contractors upon receiving 
 a full discharge of all claims of every kind or 
 
692 
 
 By letter, 
 
 stor of ])nl)lic 
 
 livku an addi- 
 
 a siiiMirstriic- 
 
 lie ailclitiniml 
 
 Wdi-k which 
 
 rnicil under 
 
 inks depart- 
 
 and on the 
 
 oiii,'ineer in 
 
 t,(i.SI, as the 
 
 lilt, who gave 
 
 Ainil, 1875: 
 
 ailway, in 
 
 vei'iiinunt for 
 
 Ric'lininnd 
 
 aifc of coals, 
 
 two stone 
 
 pliant sued 
 
 s not oovcrod 
 
 April, 1875, 
 
 1)V dctieicncy 
 
 Tht! petition 
 
 ulo niMi for a 
 
 I for and dis- 
 
 gmcnt of the 
 
 irniiMl liy the 
 
 ithcr contract 
 
 ions, or extra 
 
 I clause of the 
 full tlio eon- 
 
 II extra work 
 I'M autiiority, 
 
 cnj,'ineerand 
 
 k were condi- 
 
 sn])])liant to 
 
 extra work. 
 
 k T/ie Qiiei'it, 
 
 the enp'rieer. 
 f sul'.irdinate 
 ; of the Doini- 
 or authority, 
 r to hind the 
 ire not speci- 
 is of contract 
 own and the 
 en only in the 
 jxjjrcss terms 
 
 , contractors' 
 Intercolonial 
 
 by 31 Vict., 
 ;tion No. 7 of 
 he Uoniinion 
 '50. During 
 :s of various 
 t! suHiciently 
 laid, and the 
 
 Nov., 1872. 
 1 Feb., 1873, 
 ntract. The 
 cl.aiui to the 
 3.83forextra 
 (led in their 
 p obtaining a 
 Bcommended 
 ) (less a sum 
 lecuted, and 
 ' contractor's 
 ion receiving 
 ^ery kind or 
 
 r 
 
 593 
 
 TETITIOX OF RIGHT. 
 
 594 
 
 dcHcripf^'oii niidcr th(! contract. The balance was > bo paid anytliing. That if the work in ipic :tion 
 tfudcri'd to suppliants anil refused. The con- | was extra work, the oontracturs liad by tht; (!on- 
 trictors tlicrcnpiin, by (Hitition of right, claimed ' trai't waiviid all claim for jiaymetit for any such 
 .?l'J4,iii>.'-( 'M, as du(^ from the (^'rown to thcin for ! work. If such iixtra work was of a character so 
 extra work done by them outside of and Ix^yonil ' peculiar anil unexpectcid as to Ixi considered 
 the writt<'n contract, alleging that by orders of ' deiiors tin; contract, tlien tlii're was no sucli con- 
 the chief engineerailditionalwork and alterations trict with the commissioners as would j:\\'i'. the 
 were rcipiireij, but these onlers wen; carried out ! contra tors any legil claim against the Ci'owii ; 
 only on tin! understanding that sncli athlitional ' the conrnissionors done li'ing al)le to bind the 
 work and alterations should be ])aid for extra ; 'Crown, and they only as autliorized by st itute. 
 and alleging, further, that they wiu'c put to , That there was no guarantee, express or implied, 
 large expens • and eoinpelled to do much extra ' .as to the (piantities, nor any misn^pniseiitations 
 wirk \vliii;h they were entitled to be p.iid for, in | respecting them. But even if there bid been, a 
 oonse.pieuei! of misrepresentations in ])lans and , piitition of ri'.;ht will not lie agiiust the (^'owii 
 
 for tort, or for a el aim bvsiid on an alle^cid fraud, 
 im|>uting to the Orown the fraudulent miscon- 
 duct of its servants. JuiicM el III. V. T/f (Jif"H, 
 7 S. C. R, 570. 
 
 In the contract it was also proviiled th:vt if the 
 
 ' contractors failed toi)ei'form tlu! works withiTi the 
 
 time agrcicd upon in and by the sai I iiontraet, to 
 
 I wit, 1st duly, I.S71, tlie contractors sliould forfeit 
 
 I all money then due anil owing to th-m under the 
 
 I terms of the contract, .and .also the fui'ther sum 
 
 I of 8-,l)00 |)cr week for .all the time during which 
 
 , N lid works remained incomplete ift(!r the said Ist 
 
 .luly, IS71.by way of liipiidatiid da'niges for such 
 
 ilefault. The contract was not completed till the 
 
 i end of Au^'ust, 1.S7-' :— Held, that if tlie Crown 
 
 I insisted on reiiuiring a decree for the penalties, 
 
 tim ! being declare I the nssenee of tlie c >)itr let, 
 
 , thcdimigM ittie.h el.and theCr e.vu waseiiMtled 
 
 i to a sum of S-'.Oi)') per week from the 1st .Tuly, 
 
 1871, till the end of .\ugu3t, 1872, for liipiidited 
 
 . 1 .. 1 1 i.1 -1 i. i. (l.amiges. The Crown sulncrueiitly waiving the 
 
 tcmplated by the said contract !f,,^f^i^-,,, j,„, ^,.„fc ,^,,,, ..cndered in favour of 
 
 ^ .e rcipurcd '" •"'■t'u^ of any of ^^^^ ,„p,,ii:,;,trf„r the sum of :ill VM. 11, being 
 
 It. provisions, or by law, .and tint the contrac- I t,,, ;^„;„'„„t tenlcred l>v the respon lent, less the 
 
 tors siou d not upon any prctex*; whatever, be i . c . , ,-, .. • /, , ,i, u, f,„,,i.,,,,i 
 '-•''- . ' I costs of tlie (Jrowii in the case to l)c tixcilii'il 
 
 deducted from the said amount. /'*. 
 
 hill of Works exiiil)ited at the time of letting. On 
 tiie prolile plan it was stated tli it the best infor- 
 mation in p.is^i;ssion of tiic chief cngincm' rcs- 
 pijcting the probibli; (ju intitics of the several 
 kinds ol wiiik would b..' found in the schedules 
 accompanyiui: the plan "but contrac'ors must 
 iiuderstand tiiat tlicsi' (printities arc not giiiran- 
 teed; " .unl in tiic l)ill of work^i, wliieii pur[)ortcd 
 to b(! an abstract of all iiifoi'matioii in possession 
 of the eoinmission','rs .and chief engineer with 
 ro^'ard to the ipi lutities, it was stated, " the 
 i[iiautities lier.'in given as asoertaiiKMl from the 
 best data obt uikmI i\.\\;, as far as known, .approx- 
 imately ai;curate, but at the same time tiiey arc 
 lint wirr lilted as aeeurati;, and ii) claim of any 
 kind will be allowed, tliougli they may prove to 
 he in lecnrati;. '' Tlic iMintract proviiled inter ali i, 
 tliat it should lie distinetly iindcrstoDd, intended 
 and agreed tint the siid [irice or consider ition 
 of •■?').")7,7">() siiould 1)0 the [irice of, and be held 
 to be full comp.iiisation for all the works em- 
 brace 1 in, or con 
 or which might be reipureil in 'irtiu; ot any 
 
 eiititl 'd liy reason of .any change, alteration or 
 addition, made in or to such works, or in the 
 said plans aiicl sp(;cifications, or by reason of the 
 exercise of any of the powcjrs vested in the <!ov- 
 eruor-in-eoiineil by th(! said Ac^t, intituled " An 
 Act respecting the construction of the Intercolo- 
 nial Railway,'' or in the (vmiinissionors or eiigi 
 
 In .I.anuary, IS7"2, the Ooinmissioners of the 
 rnterolouiil RiiKviy gave public notiee that 
 thi-'y were preiiared to receive tenders for the 
 erection inter .ilii of certain engine houses .ac- 
 cording to plans and specifications deposited at 
 
 neer, liy tlu; said contract or by law, to claim or ! the olliee of the chief engineer at Ottawa. J. I 
 dem.ind any further or a Iditional sum for extra ' tendered for tiie erection of an engine house at 
 work, or as damages or otherwise, the contrac- I Metapcdiiic, and in October following he w is 
 tors thereby expressly waiving and abandoning ' instructed by the commissioners to p'-ojccd in 
 all and any such claim or invtension, to all in- the execution of the work, according to his ac- 
 tcnts .and piir[)oses whatsoever, except , as provi- eepted tender, the [irice being .S-KKS!). The 
 dcd in the fourth section of the said contract, work was completed ami deliviu'ed to the (lovern- 
 reliting to alterations in the grade or liye of i ment in Octolier, 18S1. The speciticatioiis pro- 
 lojation , ami th it the Slid contract ami the said vided as follows: '"The commissioners will 
 Biiuciti('atioiis should be in all respects subject to | provide and lay railw.ay iron, and will also provide 
 the provisions of the Act first cited in the said and tix cast-iron ooiumns, iron girders, and other 
 coiitr.ict. intituled '• An .'Vet respecting the eon- iron work rei(uired for supporting roof." In 
 struetioii of the liitereoloniil Railway," 31 Vict. September, IS73, J. I. was unable to proceed 
 0, 13, and also, in as far as thijy might be ajipli- ' further with the execution of his work, in conse- 
 cable, to the provisions of " Tiie Railway Act of (lueiioo of the neglect of the coinmisHioners to 
 18f)8." Tlie 18t!i se,;tion of 31 Viet. o. 1.3, enacts [ supply the iron girders, &c., until March follow- 
 " that no money sh dl be paid to any coiitrictor j ing, owing to which delay he siilFered loss and 
 until the chief engineer sh.ill have certiliod that damige. During the execution of the w irk, .1. 
 the work, for or on account of which the same I. was instructed and directed l>y the commission- 
 sh.all be el lime I, has licoii duly executed, nor , ers or their engineers to perform, .and ilid per- 
 until sui'ii eertifle ite shall have been approved form, certain extra works not included in his 
 of by till! commissioners. No certificate was ' .accepted tjuder, and not according to the plans, 
 given by the chief engineer of the execution of ' drawings and specifications. By his petition of 
 the work :— Held, that the contract requiring ! right, J. I. claimed .$3,795.75 damages in conse- 
 th.at .any work done on the road must be certified , quencc of the delay on the part of the coinmis- 
 to by the chief engineer, until he so certified j sinners to provide the cast-iron columns, &c., 
 and such certificate was approved of by the com- .and JjS.oO.^. 10 for extra works. The Crowa 
 missioners, the contractors were not entitleil to 1 demurred and also traversed the allegation of 
 38 
 
595 
 
 rKTITION OF TvIGllT. 
 
 595 
 
 r 
 
 
 ii('(,'1igi'ii<'<' unci (It'lay, and ndniittxl i^xtra work nindc in conformity with the above 7tliN(i'. of 
 
 to tlif nniiiiilit ol !i;:t'(i:i(l.((», iiiitl m t up llic IStli Ml A'ict. c. I'J. 'J. Tliat nnilir mc 15 of said 
 
 Htvt. ot .'<! \'i(t. c. I.'l, nliii'li i'(M|uiii'(l till' ccrti Act, it ]iai'liiini( nt liaH not Hiinc'tiontd the ix- 
 
 ticatc of tlic ( i:giiit< r iii-(lii('f aH a ii iiilition ]i(iiditui'C', a |i('tition of light will not lie lnr 
 
 jiKccd* lit to the I ajiiKiit of any hiiiii oI nioniy Moik done for and at tli(! reinu'Ht of the dipart- 
 lorwfiik d< III' < n tlie Jntui oli iiial lailway. l>y 
 
 III' (11 llie Intin oil iiial lailway 
 'M Vict., c. 15, on tlie 1st .luiic, ISTl, the Intii- 
 cohiiiial railway was declaicd to he a jiillic 
 V'oik \(ht<d ill ]ler Majti-ty and iiimU r the ci ii- 
 tiol and inaiiaguiieiit ol tin Miiiisti r of I'lililie 
 W'oikN, and all the jxjwcis aid diiticH of the 
 < (.11 liiii-t<ioiieis were tlaIl^4t( iri d to the Minister 
 of J'uhlie \\dikH, and sec. 'A of 'M \'ict. e. \',i, 
 waH K'l i'ale<l, with ho iiiik h of any other ]iait of 
 the Haid Act »n might he in any way iiirousisteiit 
 with '.il Viet. e. IS :— Jleld, that the tender and 
 its aceijitance hy the eonmiisniont rH constituted 
 a valid eontiact lietween the down and •). 1., 
 and that the delay and negle<'t on the ]iait of 
 the toniinissionerM actiiij,' for the Crown to jiro- 
 vide and lix the east-iion eoliiiniiH, Ac., which 
 were, hy the si;ecilitations, to ]n' jirovidcd and 
 lixed hy tliini, wan a hreach of the said eontiact, 
 and that the ( rown waH liahle for the daiiiiigcH 
 riKulting from such hreach 
 
 iiicnt of jiiililie Moiks, iinleSH it he for work done 
 in connection Mith repairs and idteratioiiH w hieh 
 the neucHHities of the ]iulilie xervice deniaiiiled. 
 !t. 'I hat in thiM case, if ]iai liaiiient Iuih inado 
 a]'|iro]ii iatioiiH for these works and so sanitliiied 
 the ex| t nditure, and if the wilk done was of 
 the kind that might projierly he exeeiiti il li_\ the 
 (Ulcers and scivaiitx of the depaitiiient iiiidcr 
 8(('. "Jd of said Act, then no written cuiiliact 
 would he nec(ssary to hind the d( partmciit, and 
 Hiiiiplinnt Hhoiild recover for work so done. 
 ]]otil V. Till (Jiiiiii, 7 S. (-'. 1!. (!;i4. 
 
 ]J. In Otiikh Caskh. 
 
 In order to estahlisli a right to daitiagc .s as 
 against the Crown for having, as allegid, ob- 
 stiuctKl the How of wat-T to the noils of the 
 'J'liat the extra 1 su] )ilii nts, it is incunihelit on the sii)i|iliiiiits to 
 ■Wdik claiinid for, heing lor a sum less than !ii>l(),- , shew that less than the natural volume of water 
 COO, the (( n.iiiissioiuiH had power to (>rd(r tlie i foiining the striain reaches theirinil! on account 
 wine under the Btatiite HI Viet. c. 13, b. KJ, and of sU( h alleged obstruction : therefore, wluie it 
 J. J. could lecover by pititi( ii of right, for such i apiKared u|(in the evidence that certain waters 
 part of the extia woik claimed as he had 1 em , allegid to have been penned back by a dam 
 direeti d tojierloim. 'I hat the 18tli s»e. of SI Viet, wciuld never have reached the mills of the sup- 
 e. I.'i, not having be( n (nil(die(l in the agree- pliaiits, and the extreme and un]irceedentcd iliy- 
 ment with .1. I. as a condition preceib nt to tlie j ness of tlu' S(nson had bad an appreciable cll'cot 
 jiaynient of any sum for work executed, the ^ upon the supply of water : — Held, that the evi- 
 Orown could not now rely on that section of the ; deuce did not sustain the petition, which .dlcgcd 
 Ht 'tutc for work done and accciittd and received I that the suppliants sustained damage hy the 
 
 by tlie (iovernineiit. That the ellect of H7 Viet. 
 c. 15, was to abolish the oflice of chief engineer 
 of the Intercolonial railway, and for work jier- 
 foinied and received on or alter 1st .June, 1874, 
 to disjieiisc with the necessity of obtiining, as a 
 condition precedent to the j ayment for the same, 
 the certificate of said eiiginecr-in-cliief, in accord- 
 ance with see. 18 of 31 Vict. c. 13. hUnlcr v. 
 Tin Qiitiv, 7 S. C. K. ()!)(). 
 
 By his petition of right, W., a sculptor, alleged 
 that he was imployed by the Dominion govern- 
 ment to prejiare plans, models, specilieations and 
 desij^ns, for the laying out, improvement ond 
 est.iiilislimeiit of the parliament s(iuare, at the 
 city of Ottawa : that he had done so, and super- 
 intended the work and construction of said im- 
 IjroT(ment8 for six months. He claimed JSO.OCO 
 for the value of his work. .'{I Vict. c. It.', s. 7, 
 provides that, when cxecutoiy contracts are in 
 writing they shall have certain rKjuisitcs, such 
 as signing, sealing and counteisigiiing to be 
 binding; and bj' sec. 15 provid(8 that before 
 any expenditure is incurred there shall have 
 been a previ(.UB sanction of jiarliameiit, except 
 for such repairs and alterations as the public ser- 
 vice dtniands ; and by sec. 20, requires that 
 tenders shall be invited for all woiks, except in 
 eases of jiressing imergtncy, or where from the 
 nature of the work it could be more expeditiously 
 and economically executed by the ( fiieers and ser- 
 vants of the department :— Held. 1. that the 
 Crown in the Dominion cannot be held responsi- 
 ble under a petition of right on <in executory con 
 
 erection of a dam across the river, above their 
 mill. 'J'/ii' Miit'koka Mill Co. v. Tin- (Jiiwn, '.'8 
 Chy. 5(i3. 
 
 1'lie maxim that the Crown can do no wrong, 
 applies to alleged ti rtious acts of th(! oilici is of 
 a public department of Ontario, and a jictition 
 of right will not lie for such alleged wrongful 
 acts under 35 \'ict. c. 13, O., which ercatts no 
 new right in the subject against the Crown, hut 
 relates rather to jjroeedure only. The redress of 
 a subject siiUcriiig damage from such acts, it un- 
 authorized by statute, would be a^'aiiist the sub- 
 ject who conimitted the wrong, and not against 
 the Crown. Ih. 
 
 Action against the Crown for counsel fees. — 
 Retainer, f-ee Tin- Qiiini v. JJiniln; (i S.C.lt. 342, 
 p. Kil. Afliimed by Her Majesty in council. 
 
 Held that a petition of right does not lie to re- 
 cover compensation from the Crown for damage 
 occasioned by the negligence of its servants to 
 the projierty of an individual using a public 
 work. Tin: Qtnin v. McFarlane el id., 7 S. C. 
 R. 216. 
 
 Held, that an express or implied contract is 
 not created with the (/rown because an indivi- 
 dual 1 ays tolls imposed by statute for the use of 
 a public woik, such as slide dues for passing his 
 logs through goveinmcnt slides. In such a ease 
 Her Majesty cannot be held liable as a common 
 carrier, lb. 
 
 N. C, the ."(uiipliant, by his petition of right, 
 
 tract entered into by the department of public claimed, as representing the heirs of P. ^^ . Jr., 
 works tor the pertoimance of certain works certain parcels of land originally granted by let- 
 placed by law under the contnd of the depart- ters patent from the crown, datid 5tb January, 
 nient, when the agreement therefor was not 1 1800, to P. W. St., together with a sum of $200,* 
 
>ve 71 li H(c. of 
 ir> of s.iid 
 tii'ii((l the ex- 
 ill not li,. tor 
 
 of tllC ill |.;ilt- 
 
 ■ for work ilonu 
 • riitioiiH wliifh 
 iio (Itnmiiil,.,!. 
 
 •lit llllH llliillo 
 ll HP N|lllltili|ll.(i 
 li llollf WliH of 
 
 Xdiili ll li\ the 
 iiitiiiciit miller 
 littcii ciiiidiu't 
 luirdiiiiit, and 
 rk Bii (lone. 
 U. 
 
 to (I;iniii^'(H (IB 
 
 HH .■lllij;,<|, ol,. 
 
 f iiiilln III' the 
 
 K' f^U|i]ili;iiits to 
 
 oliinic of w.itcr 
 
 niill on iicidiint 
 
 eforc, M hill- it 
 
 (•(■rfiiin WiitiTS 
 
 i.ick liy 11 ,|;,m 
 
 lis of (111. mp. 
 
 (■(■(■(Itntiil clry- 
 
 iprcciiililc (. licet 
 
 I, tli.it til., evi- 
 
 1, wliiili ,ill,.^ed 
 
 ■ ini(i;;c liy the 
 
 fir. aliovc their 
 
 T/w (JiKci,, 28 
 
 II <1() no Miiing, 
 F th<! ollici rs of 
 
 find a ]i(tition 
 legcd wrongful 
 lieli crnit(s no 
 ;lio Crown, hut 
 
 'I'lie relinks of 
 ueli acts, ir un- 
 ifc'iiinst the Kiib- 
 ind not against 
 
 counsel fees. — 
 '. (iS.C.Ji. ;{42, 
 y ill council. 
 
 es not lie to re- 
 wn for damage 
 its servants to 
 using a |iul)lic 
 ft ul., 7 S. C. 
 
 ieil contract is 
 iiuKc a!i iiiiiivi- 
 ! for Ihe use of 
 for |i;i.ssing his 
 In such a case 
 u as a eiimmon 
 
 ition of right, 
 of P. W. Jr., 
 
 ;rnnted hy let- 
 Mli January, 
 
 I sum of jfSOO,- 
 
 r)97 
 
 rKTITrON OF UKiHT. 
 
 fiDS 
 
 000 for tho rents, irhuoh and protits derived 
 therefrom by the government hIiicu the illegal 
 dcti'iition tliureof. As to the merits defenilaiit 
 pleaded: Ist. Hy prccuiptiiiy exception, setting 
 up title nnil posscsHion in lli^r Majesty under di- 
 vers deeds of sale and documents ;'2nil. i'rcscription 
 hy .'10, '20 and 10 years. An exception was also 
 tiled, setting tip that tiiese transfers to petitioner 
 i)y the heirs of V. \V. Jr. were made without valid 
 consideration, and that the rights allegid to have 
 hcon acijuired were disputalilu, (droit-- 'tigiciix.) 
 The general issue and a NU|i))lem< vary |ilea 
 claiming value of improvements were also filed. 
 'I'd the liist of these exceptions the iietitiiiner 
 answered that the parties to the deeds of sale 
 relied upon had no right of pro])erty in the land 
 sold, and denied the legality and validity of the 
 other documents relied upon, and inscrilied en 
 faux against a judgment of ratilieation of title to 
 a part of the property rendered liy the superior 
 court for the district of Aylmer, I', l). To the 
 exception of prescription the petitioner answered, 
 denying the allegations thereof, anil more parti- 
 cularly the good faith of the defendant. To the 
 HU]iplenientary plea, the petitioner alleged had 
 faith on the ])art of the defendant, 'i'here were 
 also general answers to all the jileas. (in the is- 
 sues lhu.s raised, tho parties went to proof hy an 
 eu(|u6te had lefore a commissioner under autho- 
 rity of the court, granted on motion, in accord- 
 AMCC with tho law of tho province of Quebec. 
 The case was argued in the Kxehei|uer Court be- 
 fore J. T. Tasehereau, J., aiul he dismissed the 
 suppliant's petition of right with costs. Where- 
 upon the suppliant apjiealed to the .Supreme ('ourt 
 of Canada: — Held (l''ournier and Henry, JJ., dis- 
 senting) 1. That before the code, and also un- 
 der the code (Art. 2'21I) the Crowu had, under 
 the laws in force in the jirovince of Quebec, tho 
 right to invoke prescription against a subject, 
 which the latter could have interrujited by peti- 
 tion of right. 2. 1'Lat in this case the Crown had 
 purchased in good faith with translatory titles, 
 and had, by ten years peaceable, open and unin- 
 terrupted possession, acquired an unimpeachable 
 title. 3. I'liat in relation to the inscription en 
 faux, the Art. 473 of the Code of Procedure is not 
 80 imperative as to render the judgment attacked 
 an absolute nullity, it being registered in the re- 
 gister of tho court. 4. That the petitioner was 
 bound to have produced the minute, or draft of 
 judgment attacked, but having only produced a 
 certitied copy of the judgment, the inscription 
 against the judgment fell to the ground. 5. That 
 even if S. O. 's title was un titre precaire, the 
 heirs by their own acts ceded and abandoned to 
 L. all their rights and pretensions to the land in 
 dispute, and that the petitioner C. was bound by 
 their acts : — Held, also, that tho inipenscs claimed 
 by the incidental deniandeof the Crown were pay- 
 able by the petitioner, even if he had succeedetl 
 in his action. Chewier y. TfieQueeii, 4 S. C. li. 1. 
 
 Under the provisions of 8 Geo. IV., o. 1, 
 passed on the 17th Feb., 1827, by tho Provincial 
 Parliament of Upper Canada, and generally 
 known as the Kidcau Canal Act, Lt. -Colonel By, 
 who was employed to superintend the work of 
 making said canal, set out and ascertained 1 10 
 acres or thereabouts, part of COO acres or there- 
 abouts theretofore granted to one Grace McQueen, 
 as necessary for making and completing said 
 canal, but only some 20 acres were actually ne- 
 cessary and used for canal purposes. Grace Mc. 
 
 I Qnccn died intestate, leaving Alexnnder Me- 
 j (^uccii, her husb.Liid, and V'> illiani McQueen, her 
 I clditst Son and heir at-law, her Hurviviiig, Alter 
 , her death, on thi.' .'<Ut January, IMK-', .Alexander 
 I Met^lueen relea.sed to W'illiani Mcl,lilcen all his 
 j inlci'cst in the said lands, and nn the tith l''eb' 
 , ruary, iH'M, William McC^ucen granted to> olonul 
 Hy all the lands previously granlcd to his mother. 
 ; Colonel liy died on the Ut lebniaiy, l.Mtli. liy (> 
 I Will. I\'., c. Hi, persons \>liii aiijiiiii'd title 
 to lands used for tlic piu'iio.ses of the laiial alter 
 the CDniineiiceiuulit ol the Wiiik.4, but who had 
 ; purchased before such ciimiuciicciiient, were eii- 
 I allied lo claim cointieiis.ition. Hy tliu ilnlniinre 
 I N'esting Act, 7 \'ic;t., c. II, Can., the nideau 
 canal and the lauds and works belonging thereto, 
 ] were vested in the piiiicijial olliceis ol li. M. 
 . Ordnance in (iieat Hriuiin, an i by sec. 21) it wan 
 I enacted : " I'rovided always, and be it enacted, 
 that all lands taken from private owners at iiy- 
 I town under the authority of the iiiileau Canal 
 Act for the uses of the canal, which have not 
 been used fur that purpose, lie restored to the 
 I party or jiartiis from whom the same were 
 I taken." Hy the '.lib X'ict., c. 42, Can., it was 
 i recited that the lou'goiiig proviso had given ri.so 
 to doubt as to its true eiiiistiuctiiin, and it was 
 enacted that the proviso should bo coiistrued to 
 apiily to all the land at Hytown set out and as- 
 certained and taken from Micholas ."sparks, under 
 H (ico. IV'., c. I, except certain portions actually 
 used for the canal, and provision was made for 
 payment of compensation to Sparks for the land 
 retained for canal purposes, and for tlie re-invest- 
 ing in him and his grantees of the portions ol hiiida 
 taken but not rc(|uired for such purposes. Hy 
 the llttli and 20th Vict., c. 4;"), the Dnlnaiux' pro- 
 perties became vested in Her Majesty for the 
 uses of the late I'roviiicc of Canada, and by the 
 British North Aineiica Act they became vested 
 in Her Majesty for the use of tiie Domiuion of 
 Canada. The suiipliants, the legal reiiresenta- 
 tives of Colonel Hy, brought a petition ol right, al- 
 leging the foregoing facts, and seeking to have 
 Her Majesty declared a ii'iitce for them of all 
 the said laiiils not actu' '•' used for the purposes 
 of the said canal, and praying that such portion 
 of said lands might bo restored to them, and tliB 
 rents and profits thereof paid, and as to any parts 
 sold that the values thereof miglit be paid to- 
 gether with the rents and prolits, prior to tho 
 selling thereof. Hy his statement in defence, the 
 Attorney-General contended, aniongother things, 
 that (par. 5) no interest in the lands set out and 
 ascertained by Colonel Hy passed to William Mc- 
 Queen, but the claim for compeiisatiun or dam- 
 ages for taking said lands was personal estate of 
 Grace McQueen, and passed to her personal re- 
 presentative; that (par. tt, 7 and 8,) the deeds of 
 the 31st Jannuary and (3th February, 1832, passed 
 no estate or interest, the title anil possession of 
 the lands, being in His Majesty, but that such 
 deeds were void under 32 Hen. VIU., c. 9 ; that 
 (par. 9) Colonel By was incapable, by reason of his 
 position, of acquiring any benelicial interest in 
 said lauds as against His Majesty ; that (par. 10, 
 11, 12 and 13,) Colonel By took jtroccedings under 
 8 (Jeo. 1\'., c. 1, to obtain conipensatiuu for tlie 
 lands in question, but the arbitrators and also a 
 jury summoned under the Act decided that he 
 was entitled to no compensation by reason of the 
 enhancement of the value of his other land and 
 of other advantages accrued by the building of 
 the canal, and that his award and verdict were a. 
 
f»!i:» 
 
 rLMADING. 
 
 600 
 
 
 am. 
 
 
 {'.:■ 
 
 Ii;ii' to till: sii]i]iliiiiitKclniiu ; tlint(]iitr. 14iinil 15,) 
 tlir jiicivisd III !( \'i(,t., c. 12, WHS i.'oiidiK'il to 
 Mii'liiiliiH Sjiai'k.s aiiil iliil not cxtciul to the liiiiiKs 
 ill i|Mi!xti(iii ; tli.it ()i.'ir. 1(1, 17, IH iiiiil lit,) by 
 viitiii! ot ■_' \'irt., c. I!) d'niH'r Ciiiinili) and a 
 liiniliiiiiatiiin iMHiifil in jmrsiiani'i' tlicreol, all 
 clainis lor ilania;.'i'H wliiili nii^'lit have huiiii 
 liiiMiu'lit iiiiiirr H (Ji!o, 1\'., c. I, liy ownoi'M of 
 laiiilH t.ikin t'roiii tlii! (mukiI, inrlinliiii,' clainiM of 
 till' waiil (ii.ii'i' M('(,lin!eii or ( 'oloncl I'y, or their 
 rcKiMctivc rc|iii'si'ntati\rM, ucre, on and after the 
 1st Ajiril, l.SIl, for ever liarred ; that (par. L'(i, 
 '27 and "JS, ) the sn|i)iliants were li.ined hy tiieir 
 own lacliiM ; and tiiat (par. 27 1 thi y were liarred 
 liy the statute of liniit.itinns. On a speeial ease 
 stated on the iiliadiii^'s for tin.' ii|iiiiioii of the 
 court: Held, 1. The .statute of liinitatiuiis was 
 inojiirlv [/hadalile iiiidrr .see. V of tin Petition 
 of l;i;.dit Act of I.S7I1. 2. Williihi MeQueeii 
 took the lands hy ileseent fioni liis mother, if 
 she died 1m fore the lands were set ont and as- 
 certained for the pui|inses of the eaiial. If she 
 died aftei wards, he did not, as they were vested 
 in the Crown iindrr .S (leo, 1\'., c. 1, ss. 1, ',i, 
 and her ri;;lit was eonverted into n ehiini for 
 eonipens.itiiin iindir the Ith seetion. 3. This 
 rij,'lit of coiniii iisation or daniines, if asserted 
 linili r the Ith see. of S (ieo. I\'., e. 1, Would go 
 totiiiK 1 Mrl^ueeii's ]ierMiiial rejircsentatives, hut 
 if the land was olitained hy snrivnder under the 
 i.'ld see. of the statute, then the heir-atdaw of 
 Grace MeC^liuen wiiuld he the jier.son entitled to 
 receive the damages and execute the surrender. 
 4. The deeds of the .'list Jai nary, 1832, and (ith 
 rdiru.iry, 1832, nri^ void as against the ("rowii 
 80 far ;is they relate to the acres in disjiuto, ex- 
 cejit so far as I he same may ho considered as a 
 surrender to the (Jrown under the 2iid sec. of the 
 liidean (-'anal Act. .'). 'J"he 9th iiarngnajih of the 
 statement in defence is a sullicient answer in l.iw 
 to the jietition. (i. Tile defence set up in the 
 10th, nth, 12th and 13th p:uagraphs of the 
 statement would he sufficient in law, supjiosing 
 the statements therein to he true. 7. The pro- 
 viso of 9 Vict., c. 42, s. 29, was conlincd in eflect 
 to the lands of Nicholas Sparks only. 8. If the 
 claim is to he made hy (irace McQueen's per- 
 sonal representatives under the 4th section of the 
 Eideau Canal Act (and any claim hy her could 
 only be under that section) the Acts referred to 
 in the Kith, 17th, 18th and 19th par.igraphs of 
 the statement in defence have an application to 
 this case and would constitute a bar against all 
 claims to be made under the Uideau Canal Act. As 
 to the claims to be made hy the heirs of Colonel 
 By, they have no claims under any of the statutes. 
 9. If the Ordnance Vesting Act vested the 1 10 
 acres in ijuestion in the heirs of C!olonel By, the 
 court was not prepared to say that their claim 
 had been barred by laches on the statement set 
 out in the petition. But the st.-itute had not that 
 effect, nor had Colonel By or his legal representa- 
 tives ever had for his or their own use and benefit 
 any title to these 110 acres. Tylee vt al. v. The 
 Queen, 7 S. C. 11. Col. 
 
 See Junes v. The Queen, 7 S. C. R. 570. p. 
 594. 
 
 III. Pleading. 
 
 N. C, the suppliant, by his petition of right 
 .claimed, as representing the heir of P. W. , jr. , cer- 
 
 tain parcels of laiiil originally granted b '■■^r% 
 ji'itent from the erown, dated ,'>th .lainia i, 
 
 to 1*. W., Miiiir., together with a sum of ... ,oOO 
 for the rents, issues and prolits doriveil there- 
 from by the government since the ilh l; d deten- 
 tion thereof. The crown pleaded to this petition 
 of right -1st, by demurrer, defense aii foiids on 
 droit, alh^ging tiiat the description of the limits 
 and position of tlic property claimed was insulli- 
 eient in law : 2nd, that the coiii'liisions of the 
 iietition were insullicient and vague : 3ril, that 
 in so far as respects the rents, issues ami profits, 
 there had been no signilication to the govern- 
 ment of the gifts or transfers made by the heirs 
 to the Hnp)iliants. These demuirers were (lis- 
 missed by Strong, J., and it was -lli.ld, that 
 the obji'ction taken should have been pleaded by 
 exci'iitioii a la forme, pursuant to Art. llti(y. C. 
 P., and as the demurrer was to all the rents, 
 issues and prolits as well those Ix^forc as these 
 since the transfer, it w.is too large and should 
 be dismissed, even supposing notilicatioi 'f the 
 transfer necessary with respect to rcn^ ucs 
 
 and prolits accrued previous to the si im 
 
 by the heirs of I'. \V., jr. Cheerier y. 'J .n, 
 
 4 S. C. K. 1. 
 
 IV. Costs. 
 
 la dealing with the (piestion of costs upon a 
 petition of right, the same rule will he applied 
 iis if the ipiestion was one between subject and 
 subject ; therefore, A'heru on a petition of right 
 the Crown instead of demurring, went to a hear- 
 ing, the court (Spragge, C) on dismissing the 
 petition, allowed to the Crown such costs only 
 as Would have been taxed had the liability of the 
 Crown been raised by demurrer. The Munkoka 
 Mill C<j. V. The Queen, 28 Chy. 563. 
 
 Security for costs in Exchequer Court. See 
 WouU V. The Queen, 7 S. C. R. G31, p. 155. 
 
 PLANS. 
 
 Dedication to public by registration of plans. 
 See In rt Perk nutl the Curixiralion of the Town 
 of Gait, 40 Q, 15. 211, p. 199 ; In re Morton and 
 the f'orporatiiM of the City of St. Thomas, 6 
 A. 11. 323, p. 200. 
 
 PLEADING. 
 
 I. AD.Mr.ssto\3 BY Pleading— 5ce Evidence. 
 
 II. E.STopi'EL BY Pleading — See Estoppel. 
 
 III. In PAHTicunr. Aotion.s oh Suits — See 
 The Seveual Titles. 
 
 (Since the Judicature Act, 18S1.) 
 
 I. Venue, 602. 
 II. Parties. 
 
 1. Ilunband and Wife, 603. 
 
 2. Other Persona, 603. 
 
 3. Adding and Striking out Parties. 
 
m 
 
 I tod 1> ' TH 
 
 l.'iriiiii i, 
 
 im.if... ,o()0 
 luiiv<Ml tluire- 
 illrj; il ilutcil- 
 41 tins |i(.'titi(in 
 
 H'. nil IiIImIm (ill 
 1 III' tll>: lilllitH 
 (id WIS iiiaiitli- 
 lil.siiiiis of the 
 ,'110 : ;jrd, tlmt 
 108 mid profits, 
 to tlio ;,'c)veru- 
 (' liy till! hoirs 
 ivi's wero di8- 
 M -Hold, that 
 -;i!ii ])K',ided by 
 Alt. IKiC. t". 
 idl the roiita, 
 
 ..'foru HH tllOHll 
 
 ^'0 mid sliould 
 
 ticatioi 'f the 
 
 ) reii^ lies 
 
 lie SI im 
 
 V. 'J Jl, 
 
 if costs upon a 
 vill lio ajiplied 
 'II siibjuct iind 
 ;titi()ii of right 
 i'eiit to ii hear- 
 lisiiiissiiig the 
 ucii costs only 
 liiibility of the 
 T/ia Mu.ikoka 
 3. 
 
 r Court. 
 I, p. 155. 
 
 See 
 
 tion of plans. 
 (i of tin; Toimi 
 re Mortuii and 
 I. Thomas, 6 
 
 Sea Evidence. 
 le Estoppel. 
 »R Suits— S'ee 
 
 13S1.) 
 
 I Parties. 
 
 m 
 
 rLFADlX(i. 
 
 III. 
 
 IV. 
 
 V. 
 
 VI. 
 
 VIT 
 
 VIIL 
 
 IX. 
 
 X 
 
 (a) AilwtiCwij Th'iriJ I'tir/ii.i to 
 
 Drl'illil, (i04 
 
 (b) Where /)i/,H(latU ClaiviM n 
 
 h'l-iiii'ili/ orer aijaiiixt ii 'J hint 
 rurtij', (i04. 
 ((•) Other C(i»es, (105. 
 
 4. //( Siilt.^jhr S/,er!iic Pe rformauci ■ See 
 .SPKI IHC rEuiolLMANCE. 
 
 STATlOiMENT OF C'l.AIM, ()07. 
 
 SlATKMr.NT OV DKl'r.NCK, (i07. 
 
 Set tii'F antj Coitntek Clai.m, GOT. 
 
 Di;iMIM(HEH, 008. 
 
 AliDINO AND AMENDINIi Pi.EAS. 
 
 1. UeiinaUii, 010. 
 
 2. New Trial—Sec Xi;\v TiiiAU 
 , When Cauhe ih at Ls.sve, 012. 
 
 COMT.S, 012. 
 
 . In AtTioN FOR TiiK rtr.rovv.uY of the 
 possK.ssioN OF Land— (S't't Eject- 
 ment. 
 
 (liefore the Judicature Aet, ISSl.) 
 
 PLEADING AT LAW. 
 I. frENEifAL Principles. 
 
 1. Eii(harra.iniiiij Pltadiiiji, 012. 
 
 2. Departure, 012. 
 
 3. Certaiiit)/ and Particularity, 013. 
 
 II. Deceahation. 
 
 1. Venue, Ci\!i. 
 
 2. Chaufjiny Venue, 014. 
 
 3. Time /or Declarimj, 614. 
 
 4. Form of, 014. 
 
 III. Pleas in Abate.ment, 614. 
 
 IV. Time for Pleauino, 015. 
 
 V. Pleas in Bar anu Suusequent Plead- 
 in os. 
 
 1. Similiter, 615. 
 
 2. Other Cases, 015. 
 VL Equitable Pleas, 616. 
 
 VII. Demurrer, 616. 
 VIIL Amendment of Pleadinos. 
 
 1. Parlies, 010. 
 
 2. Other Cases, 017. 
 
 IX. Waiver of Objections, 617. 
 X. In Ejectment— .SVe Ejectment. 
 
 (Before the Judicature Act, ISSL) 
 
 PLEADING IN EQUITY. 
 Bills. 
 1. Form of. 
 
 I. 
 
 602 
 
 (n) MuW'fariiiu^ni.in, 017. 
 (1)) Cniiiiiiliinnd Piirli<-alnril% lilS. 
 (c) I'riiiii rfiir Oineral Itiliif. 01'.'. 
 2. C'/VM.s lidls, 010. 
 
 II. I'ahties. 
 
 1, Pir-iiins Suimi on hdintfof a Cl'iiS, 
 
 010. 
 
 2. Exeriitori (tnd Admini.-ilraliirs, (>'_'(; 
 
 .1. llw^hand anil Wif, iWl. 
 
 4. Other Pirsdi's, O'i'2. 
 
 5. Atliirneii-Oeneral —See Attoiinev- 
 
 (il-.NEllAL. 
 
 0. Amendment hi) Addimj Pavll'S. .See 
 
 V. 1., ini'ni. 
 
 7. Ill Paii'dhm Suit-i—Sii I'AliillKiN. 
 
 8. JnSnlt.^far S/irr'ijie I'l rfurmunn — See 
 
 S Pi:(' ii'ii • Perfou.m.\-n I.' e. 
 
 III. ^VNswr.H. 
 
 1. Snjijdcmentiil AiL-iwer, (i'2'.i. 
 
 IV. DiMritUEK. 
 
 1. For want of E'jniti/, (>'2',i. 
 
 2. Other Ca.ws, 024. 
 V. Amknumknt. 
 
 1. Jijj Aildimj Parties. 
 
 (a) III .Viister's Office, 02."). 
 
 (b) In Injiiiictiou Suitu — See Injunc- 
 
 tion. 
 
 2. (Jther CiM's, 025. 
 
 (Since the Judirature Act, JSSl). 
 I. Venue. 
 
 Where the cause of action .arose, and the de- 
 fendant resided at I'eiiibiokcand the writ in the 
 action was issiic<l at Pembroke, but the plaiiititl' 
 advi.sedly propo.sed to have the action tried at 
 Kingston, alleging that lie could not obtain a fair 
 trial from a jmy at IVmbtoke, owing to the in- 
 tluence of the det'endaiit in that county :— Held, 
 on appeal, reversing the action of th(! local judge 
 at Pembroke, tiiat the defeiiihint should not suc- 
 ceed in having the place of trial changed from 
 Kingston to Peiiiliiokc, .as upon the allidavits 
 tiled he did not shew such a preponderance of 
 convenience in favour of Pembroke, as to war- 
 rant depriving plaintiff of his right to choose 
 the venue. JJacis v. Marruij, P. 11. 22.— 
 Cameron. 
 
 A formal verdict was entered at the Ottawa 
 Assizes, subject to a reference, which failed 
 through the omission of the arbitrators to enlarge 
 the time. A judge in single court set aside 
 the verdict, aiul granted a new trial. The jilain- 
 tills resided in ^lontreal, and defendant's ollicers 
 at Picton, and plaintiffs had some witnesses resi- 
 dent in Toronto. It appeared that Toronto was 
 I as easily accessible as OUawa, and that no incon- 
 1 veuience would be occasioned by a change of 
 
603 
 
 PLEADING. 
 
 604 
 
 r 
 
 
 1.; 
 
 '2 
 
 "venuo to Toronto. Under tliese circumstances 
 tlic change waa directed. Coii/ifr et at. v. T/ii; 
 Central Onlurio R. W. Co., 4 O. U., C. P. D. 2Sl/. 
 
 An order was made by the Master in Chambers 
 changing the veniic from the Asj-iy.es at Simcoe, 
 for wliieh notice had been givep, to the Chancery 
 Sittings at Lonihm. The judge presiding at 
 tliose sittings having refused to take the case, as 
 it bidongod to a Common Law Division:— HeUl, 
 without determining whether the master's order 
 Mas a proper one, tliat tlie pliintilf was justified 
 in acting on it. .and liis costs occasioned by the 
 abortive attempt at trial, were allowed to him. 
 Schwoh V. Mraioii'jhlin. 9 t'.R. 47'>.— Cameron. 
 
 In actions for infringement of patent. See 
 (liihl^iiiilli v. Walton, !) I'. It. 10, p. "187; Ailche- 
 non V. Alanii, 9 P. K. '2'}',), 473, p. 5c.7. 
 
 II. PAUT1E.S. 
 
 1. Ilufihanil and Wife. 
 
 The inchoate right of dower at law obtained 
 by a wife in land co.)veyed to her husband makes 
 her a proper p:'.rty defendiint to a suit to set 
 asid(! a couvt yance made to her husband by fraud 
 in which the wife is alle,'ed to have assisted. 
 MvFarlaml v. McFarland, 9 P. K. 73.— Boyd. 
 
 2. Other Persons. 
 
 Helil, (affirming Ferguson, .T.,) that inasmuch 
 as, if the parents of the plaintitl' had brought a 
 suit upon the agn ement in tiiis case and re- 
 covered, they would bo trustees of the proceeds 
 for her, tlie "plaintiff might maintain the suit in 
 her own name. Eohrt.t v. Hall, I O. K., Chy. 
 1). 388. 
 
 The plaintiff shipped goods from St. Johns, 
 (^)nel)ec, to Dundas, Out irio, to be en Tied from 
 St. Johns to Toronto by the (irand Trunk Ry. 
 (jo. , who delivered them to the Great Western 
 ]{y. Co., who carried tlie same to Dundas, where 
 the goods arrive<l in a damaged state. Tlie plain- 
 tiff beingin doubt as to which company was liable, 
 there having been a separate contract with each, 
 joined both as defendants :— Held, atfirniingthe 
 order of Proudfoot, J., who had attirmcd the 
 order of the master in Chambers, (9 P. R. SO,) 
 that the case came within Rule 94 of the Judi- 
 cature Act, and that the plaintiff had a right 
 to make both companies parties. Ifarrey v. 
 The Grand Trunk li. W. Co., and Great Western 
 R. W. Co., 7 A. R. 715. 
 
 Held, in this case that the company vere 
 properly made parties to an action to restrain a 
 forfeiture of stock made under a resolution of 
 the directors, it being alleged that the number 
 of directors had been illegally reduced, as the 
 reduction of the directortate was the act of the 
 company, t.hristopher et al. v. Noxon et al., 4 
 O. R., Chy. D. 672, p. 140. 
 
 In an action for the cancellation of a tax deed : 
 — Held, that the fact that the defendants might 
 liave a remedy over against the municipal cor- 
 poration which had sold the land for taxes did 
 
 not make the corporation a necessary party to 
 the action. Charlton v. Watson et al., 4 O. R., 
 Chy. D. 489. 
 
 Proper parties to an action for tne removal of 
 an instrument from the register where the 
 registry of such instrument is not authorized by 
 the registry Act. See Ontario [nduMriaX Loan 
 and Investment Co. v. Lindsey et al, 3 O. R. 66. 
 
 Where B. gave a mortgage to W., rnd after- 
 wards employed G. to do certain work and fur- 
 nish materials on the property mortgaged:— 
 Held, that although W. had commenced proceed- 
 ings under an alleged lien in respect of the s.iid 
 property against B., subsequently to the com- 
 mencement of which proceedings the work was 
 done in respect of which the present lien was now 
 claimed, it was not necessary that G. should 
 have been made a party to the former action, and 
 the fact that G. was not included in the inaster's 
 report in that action, as among those holding 
 liens against the property in question, was no 
 bar to his maintaining this cne. Bank of Mon- 
 treal el al. V. Haffiier et al., 3 O. R., Chy. D. 183. 
 Reversed in Appeal. See 20 C. L. J. 147. 
 
 3. Adding and Striking Out Parties. 
 
 (a) Admitting Third Parties to Defend. 
 
 The action was brought by one F. and his wife 
 against Archibahi F , to recover nine years 
 arrears, under r.n annuity deed made by the de- 
 fendant, to secure $120 a year to the plaintiffs 
 during their lives. Janet F., the defendant's 
 wife, had joined in the annuity deed to bar her 
 dower. Subsequently the defendant Archibald 
 F. abandoned his wife and al)3Conded. Janet F. 
 then brought an action ;or alimony, and low ap- 
 plied to be let in to defend this .action, on the 
 ground that it was coUusively brought for the 
 purpose of defeating her suit for alimony, and to 
 deprive her of her dower in the lands: — Held, 
 ! upholding the 'v.ler of the M.aster in Chambers, 
 I th.at Janet F. w.as entitled to be admitted to de- 
 ' fend. Ferris et ux v. Ferris, 9 P. R. 443. — T.ay- 
 lor, Master. — Ferguson. 
 
 The defendant Clarkson, as .assignee of the de- 
 fendant Hicks for the benefit of creditors, h.ad 
 taken possession of the goods in (juestion, on 
 which the plaintiff claimed a lien under an un- 
 registered agreement in the nature of a chattel 
 mortgage On motion of certain creditors tlioy 
 were made parties to the action, under Rule 103 
 0. .1. Act, on the ground that they had a substan- 
 tial interest in the subject m.atter of the action. 
 Kltchhi') V. nicks et al., 9 P. R. 518.— Winches- 
 ter, Rei/ustrar, Q. B. D. 
 
 (b) Where Defendant Claims a Remedy Over 
 Against a Third Party. 
 
 Under Rule 112, where in an action the plain- 
 tiff is entitled to recover against the defendant, 
 against whom the action is brought, the defuud.ant 
 is precluded from trying questions arising be- 
 tween himself and a third party added at his 
 instigation under Rule 108, in the trial of which 
 the plaintiff has uo interest, and which has the 
 
604 
 
 sary party to 
 al., 4 O. R., 
 
 ho removal of 
 r wliere the 
 authorized by 
 liistrial Loan 
 d, 3 O. R. 66. 
 
 v., riid after- 
 (vork and fur- 
 mortgaged : — 
 need proceed- 
 !ct of the said 
 ' to tho com- 
 the work was 
 t lien was now 
 lat Ct. should 
 ler action, and 
 n the master's 
 those holding 
 istion, was no 
 Bank of Mon- 
 ., Chy. D. 183. 
 J. 147. 
 
 Parlies. 
 
 to Defend. 
 
 F. and his wife 
 sr nine years 
 ade by the de- 
 I the plaintiffs 
 10 ilefeiidaut's 
 3ed to bar her 
 lant Archibald 
 ded. Janet F. 
 ly, and low ap- 
 <aetion, on the 
 rought for the 
 Jimony, and to 
 I lands :— Held, 
 r in Chambers, 
 idmitted to de- 
 ,R. 443.— Tay- 
 
 igneeof the de- 
 orcditors, had 
 n (|uesti(>n, on 
 I under an un- 
 re of a chattel 
 creditors they 
 under Rule 103 
 r had a substan- 
 r of the action. 
 ) 1 8. —Winches- 
 
 Remedy Over 
 ■tij. 
 
 ction tho plain- 
 tho defendant, 
 it,thodefeudaiit 
 ons arising be- 
 ;y added at his 
 e trial of which 
 which has the 
 
 605 
 
 PLEADING. 
 
 606 
 
 effect of delaying the plaintiff in his recovery. 
 Till' (jiirpovalinn of the Town of Damlas v. 0/7- 
 vwar et al , 2 0. H. , C. P. D. 463. 
 
 Defendants, sued by the plaintiffs for the 
 amount duo under a lease of a toll-gate, brought 
 in W. as a defendant, alleging that an agreement 
 to commute tolls, payable by W., had l)een 
 made by tho pliiiititfs, and claiming as a sot off 
 tho ditforonoe between such commutation and 
 
 the tolls f)thorwiso piy ible by W. This agree 
 
 having had auffijient time to ascertain his rights, 
 and shc'.viiig no defeuce, the court under tlio O. 
 .T. Aot, Rule 93, directed tlio insoh'outs to be 
 added, and judgment to beonterel for thj plain- 
 tilfs for tlio amount claimed, l)ut, under the 
 circuinstvncos, without costs. Woodw ird el al, 
 V. ShleliU, 32 C. P. 282. 
 
 One C. , a practisinf; barrister, dealt laro;ely in 
 
 land truisactions, but it was not shewn thit he 
 
 J (le|ieudotl thereon for his living. Be^jomi ig in- 
 
 solvent, proceedings umler the Insolvent Act of 
 I 187") wero taken a'.;iinst him. Tlie pliiutitf was 
 1 assignee of a mortgage made by 0., and lironght 
 I suit thereon against H., the assignee iu insol- 
 vency of C, and D. and others, tlie owners of 
 parts of the mortgaged lands. It was objected 
 by I), that C should have been made a party: — 
 Held, that C. was not a trader within tho mean- 
 ing of the Insolvent Act and that nothing passed 
 to the assignee in the insolvency proceedings. 
 tl. was therefore declared to be a necessary 
 rhedofoiidantandhisbrotherpartitionedtheir I party, and leave was given to ad<l him as a de- 
 lands, defendant taking tiie west half of a lot, fend'ant. Joxejih v. Haffiier, 29 (Jliy. 421. 
 
 munt livving been disproved, the parties pro- 
 ceeded to try the question as to the liability of 
 W. to tho original defendants, in which tho 
 plaintilfs iiid no interest, and judgment was 
 given in favour of the original defendants : — 
 Held, that such judgment must be set aside. Ih. 
 
 (c) Other Canes. 
 
 on wiiicli was an hotel, and the brother the east 
 half, on wliicii a store was erected, each suppos- 
 ing that tlic division lino ran between the two ^ ,. „ 
 buildings. Tlie defendant sold his portion to the ■ *■"'", "' '^ license to do so. J 
 plaintiff, who h id lived opposite for many years, .'^f'^'*y,,":"\ ,*"*■'""/ 3'^: ^[ 
 tho land l)(!ing described as the west half aooonl- 
 iug to a plan. Tho hotel oncroaohed upon the 
 east half at tho roar end of tho building about 
 tliirty-fonr inclios, the value of the land encroach- 
 ed upon being very trifling. It appeared that 
 tho hotel could be moved for about .?40 ; and 
 that defenilant had offered to procure a lease of 
 the portion encroached upon at a nominal rent, ' dants. 
 which was refused. The plaintiff charged that ' •'''"''''''■• 
 the defendant had falsely and fraudulently re- ! 
 presented tint tho division lino between the two 
 lots ran between the two buildings, and brought 
 an action therefor, praying for a rescission of 
 
 Plaintiff sued defendant for flooding his land 
 by moans of a mill dam, after the ilotormina- 
 
 Tlio Groat Western 
 iters of tho stream 
 into anotlier channel, which was not deep enough 
 to irry off all tho water if the defendant's dam 
 was roniovod, so that by tho act of the railway 
 company tho plaintiff could not obtain complote 
 relief by succeeding against defendants : — Held, 
 that tho plaintitf should have liberty under Holes 
 91, 103, to add the railway company as dei'eii- 
 llcad V. Bowman, 9 P. 11. 12. — U.ilton, 
 
 Bjfore a rt Temption suit one of tho mortga- 
 ' gor's surviving children died an infant and intes- 
 tate : — Held, that this suit enured to the benefit 
 of those entitled to her share, including !ior 
 
 c. 
 
 tho sale, for an account of improvements, and ' mother as ton int fm- life, under II. S. O. c. 105, 
 for damages. The deed was drawn after tho ' s. 27, and Hold, also, that tlie mother should be 
 alleged misrepresentation and after the plaintiff directed to bo made a party in tho m ister's office 
 knew of the eneroaciiment, and nothing was then ! under (1. (). 43H, since the present case did not 
 said about the line. The learned judge at the ' fall under the . Judicature Act. Semble, if under 
 trial found th it there was no false rearosenta- 'that Act the samo might have been directed 
 tion, but he added defendant's brother as a par- ! under llulo 89. FanliU v. Harper et al., 2 O. 
 ty, and directed him to convoy to the plaintiff 11., Chy. D. 405. 
 the land oncroaohed upon : — Held, that tho ac 
 
 tion could not be maintained, for, among other 
 reasons, the plaintitf knew of the encroachment 
 when he took the conveyance, which made no 
 provision respecting it ; and she had so dealt 
 with the projierty .as to preclude her from claim- 
 ing a rescission : — Hold, also, that under the cir- 
 ciroumstances, more fully stated in the report, 
 the brother should not have been adilo.l ; and 
 the plaintiff, having based her action on tho 
 ground of fraud, should not be allowed to rely 
 upon an entirely different ground. Dunbar v. 
 Meek, 32 C. P. 195. 
 
 Action by plaintiffs for 8460, as assignees under 
 
 The plaintiff consigneil goods to parties in 
 Knglind, ami shippcil tlieui by the defendant 
 CO iipanios on bills of lading, doscriljing them as 
 
 shi[)[)od l(y tho plaintiff, to bo delivered to 
 
 orilor or his assigns, he or thoy paying freight. 
 The plaintitf emlorsod the bills of lading to vari- 
 ous parties in England, to whom he had sold the 
 goods. The consignees paid the drafts dr.vwn 
 upon them for the price, and the gooils having 
 boon seriously damaged in transit, they made 
 claim upon tho plaintiff for the hiss. The plaintiff 
 now sued for the damage, and was nonsuited on 
 the ground that he had not sufficient interest, or 
 was not the jiropor person to sue. The court 
 
 an assignment from the assignee in insolveuey of without dociiliiig as to the plaintiff having no 
 the estate of W. & .\. At the trial the learned ; right of action, or the effect of R. S. O. c. 116, 
 judge held that, under the circumstances set out ' s. 5, set aside tho nonsuit, and directed a new 
 in the report, the amount did not pass to tho trial with leave to tho plaintiff to add as co- 
 plaiutiffs under the assignment to them, but plaintiffs any or all of the consignees or endor- 
 belonged to the insolvents , but he refused to sees of tho bills of lading, tho evidence already 
 achl the insolvents as co-plaintiffs, because the I given to stand with any additions the parties 
 defendant was not in a position to know whether might desire, reserving all costs. Hatidii et aL 
 he had a defence as against them. During the v. 'The Mirchanln Despatch Co., 2 O. R., Q. B- 
 following sittings of the court, the defeiidaut ; D. 385. See .S'. C.,4 0. R. 723, p. 84. 
 
COT 
 
 PLEADING. 
 
 60S 
 
 C 
 
 s 
 
 •at 
 
 l'. 
 
 
 Since a way of necessity can only pass ivith 
 the grant of tlie soil, the oMiier of the legal estate 
 in the laiul as to which it is claimed, should be 
 a party to an action claiming such way and w here 
 an e(juitalile owner of the land sued, he was per- 
 mitted to make the owner a co-plaintitl' hy amend- 
 ment at tlie hearing. Huijlur v. L'oupir, 2 O. R., 
 Chy. \). 398. 
 
 Ill Statement OF Claim. 
 
 The plaintifV indorsed his writ ot summons and 
 filed his statement of claim to recover possession 
 of the huiii in dispute, as being the assignee of 
 a lease nia<le by him to tlie defendants, who 
 assigned to a third party, who assigned and sur- 
 rendered to the jilaintitf. The defence was that 
 the lease was in etlcct a mortgage, and fraud and 
 wantot consideration were alleged : — Held, that 
 the jihiintifi could not amend his statement of 
 claim, and ask a toreclosure of the land as 
 mortgagee, ili-llharijey v. JilcO'iiniU el al, 9 1'. 
 E. lf)7.— AVilson. 
 
 Held, that the mention of the date of issue of 
 ?■ V, I'it in a stattnicut of claim was essential, but 
 leave w as given to amend on paynii nt of costs. 
 ,i'co« V. Cniij/ituii, 9 P. K. 253.— JJalton, MusUr. 
 
 An order allowing further time to file a state- 
 ment of claim should not lie made ex parte. 
 Wiiik V. IJorrls, 9 P. K. 27G.— Proudfoot. 
 
 If a statement of claim is filed after the time 
 limited by liule 158, (a) (three months from 
 appearance entered,) the action will not be dis- 
 missed t'(jr its non-delivery, but the statement is 
 irregular and may be struck out. In this case, 
 under the circumstances, the time for delivery 
 •was extended uiion payment of costs of the mo- 
 tion. Ckirkc V. McEicbuj, 9 P. li. 281.— Dalton, 
 Master. 
 
 Kew trial granted in action for malicious 
 prosecution w ith leave to plaintifl" to amend the 
 statement of claim. Macdouald v. IJciiwuod et 
 a/., 32 0. P. 433. 
 
 IV. Statement of Defence. 
 
 Though each paragraph of a statement of the 
 defence should, under Uule 128, as nearly as 
 may be, contain a separate allegation, it need 
 not contain a separate defence. The Union Fire 
 Inn. Co. V. Lijmaii, 4G Q. B. 453. 
 
 V. Set-off and Countek Claim. 
 
 The plaintifl' sued defendant on an account 
 assigned to him by one F. Defendant, by his 
 counter-claim, alleged a set-off against F., and 
 adding F. as a defendant claimed judgment 
 against him for a balance due : — Held, that the 
 counter-claim as against F. must be disallowed, 
 the defenilant having no right in this suit to 
 raise an issue between himself and a third party, 
 with which the plaintiff was not concerned. 
 Romami v. lirudrecht—Broilrecht v. Fick, 9 P. 
 R. 2.— Dalton, Munttr. 
 
 Held, that to an action by an assignee of an 
 account for the price of lumber and staves deliv- 
 
 ered by the assignor to the defendant under two 
 certain contracts therefor, the defendant, under 
 R. S. O. c. lib, ss. 7, 10, and the Judicature 
 Act, ss. 12, ?6, anil Rule 127, can set up as a 
 defence a claim for damage lor the i;on-delivery 
 by the assignor to the -Icfendant of certain other 
 timber and staves sjieciied in the contracts, and 
 for tlie inferior iiuality of those delivered. Per 
 Osier, J., his right to do so depended wholly 
 upoi. J!. .S. O. c. IKi, s. 10. In tliis case the 
 learned judge, at tlie trial, having refused to 
 entertain the former defence, a new trial was 
 ordered. The Kuchdin/e Bunk v. ,Sliii/ii>ii, 32 C. 
 P. 158. 
 
 In an action for the recovery of land, {ind for 
 mesne profits, a counterclaim for damiiges for 
 illegal distress against the plaintilf and his bailiff 
 who ej • -uted the distress, was held to be good. 
 JMnhliu,. ■ V. Fhipps, 9 P. R. 204.-Dalton, 
 Nuater. 
 
 A promissory note made by the defendant had 
 been held by the Consolidateil Hank, and after its 
 maturity the defendant transferred certain tim- 
 ber limits to the bank as collateral security for 
 the payment of the note, which limits the bank 
 sold. 'J'he plaintifl's became holders of the note for 
 value after dishonour and after the timber limits 
 transaction and broughtthis actioiuipon the note. 
 A counter claim against the jihiintitfs and the 
 bank by the defendant setting up tliat the bank 
 had sold the timber limits without authority 
 and for an insutlicient price, were thereby 
 guilty of a breach of trust, and claiming that the 
 ilefendant should be permitted to set oil' so much 
 of his claim therefor against the bank as would 
 satisfy the balance claimed u])on the note was 
 held bad and struck out as not being properly a 
 counter claim. Per C'amernn, J. , unless required 
 by the clear legal rights of the delendant lor his 
 protection against the plaintiirs action, counter 
 claims are not to be favoured. ('(inudiiui S<eu- 
 rili,:-< Co. V. Pienllce, 9 P. R. ;J24.-- Dalton, 
 Master — Cameron. 
 
 Held, per Ferguson, J., that the 0. J. Act, 
 Rule 17 and G. O. Chy. fi47, do not apply to 
 counter claims. Klein et al. v. The Un'iuu Fire 
 Jiix. Co. et al.. 3 O. R., Chy. D. 234. 
 
 See 67«.iJi v. G7rt.s-,f, 9 P. R. 14, p. 231 ; Francis 
 V. Francis, 9 P. R. 209, p. 394. 
 
 VI. Demurrer. 
 
 The defendant having filed liis statement of 
 defence, the plaintiff replied thereto by amend- 
 ing his claim, adding to the statement two new 
 paragraphs which would have been demurrable 
 if pleaded as a reply. The matters tiieicby set 
 up, when separated from the rest of the state- 
 ment, did not disclose any distinct cause of 
 action. Thereupon the dtfendant served an 
 amended statement of defence, and deniurred to 
 the two paragraphs which had been so added. In 
 view of the fact that the paragrapiis which had 
 been so added did not disclose any seii.irate or 
 substantial cause of action, and that the demur- 
 rer, however decided, cinild not advance the 
 cause, the court (Royd, ('.) overruled the de- 
 murrer without costs, as it was the tir.'^t occasion 
 the point had arisen under the Judicature Act. 
 Itumohr v. Marx, 29 Chy. 179. 
 
608 
 
 nt under two 
 idiiiit, uiiiler 
 Judicature 
 stt up as a 
 Koii-delivery 
 CLitiiiii other 
 )iitracts, and 
 ivircd. Per 
 iidcil wholly 
 his caso the 
 ; iilusL'd to 
 !W liial was 
 tiiiKiiii, 32 C. 
 
 laud, pml for 
 daui.'iges for 
 11(1 his bailifif 
 (I to lie good. 
 !04. — i>aIton, 
 
 efuudaiit had 
 , and aftt'r its 
 certain tim- 
 security for 
 nits the bank 
 of tlien(;tefor 
 
 tiniher limits 
 
 j)ou the note, 
 ititls and the 
 iiat the bank 
 lut authority 
 
 ere thereby 
 niug that the 
 et off so much 
 auk as would 
 the note was 
 ig iiroijerly a 
 llIe^^s required 
 'udant tor his 
 •tioii, counter 
 'iiii(lii(ii Stvn- 
 V24.-Dalton, 
 
 3 0. J. Act, 
 not aindy to 
 he Union Fire 
 14. 
 
 2,'}1 ; Francis 
 
 609 
 
 PLEADINU. 
 
 610 
 
 statement of 
 ;o liy amend- 
 iient two new 
 n demurrable 
 ■s thereby set 
 of the state- 
 net cause of 
 it served an 
 ilemurred to 
 so added. In 
 hs wliieh had 
 y separate or 
 t the demur- 
 advance the 
 uU'cl the de- 
 tirst occasion 
 dicature Act. 
 
 The propriety of partial demurrers which do not 
 bring up tlie w hole or even a substantial ques- 
 tion between the litigants, thus tending to in- 
 crease costs, considered and remarked upon. J/>. 
 
 The bill alleged that the uninieipal councils of 
 the respective corporations had adopted and 
 sanctioned certain tei ms and conditions for divid- 
 ing and settling the several liabilities and assets 
 of the corjiorations upon their separating, and 
 that both jiarties accepted such settlement as a 
 final settlt nient between them, and acted ther*;- 
 upon : — Held, on demurier, thfit it was not ne- 
 cessary to allege that such acceptance was by 
 liy-law ; although :— !:>eml)le, that at the hearing 
 t might be necessary to establish that such was 
 the fact. 'J'/ie Corjioi-alion of the Vilhuje of 
 VrarcnhurM v. The Corjioraiiou of the Township 
 ofJUudoki, 29 Chy. 439. 
 
 Where the allegations iu a bill of complaint 
 were of an ambiguous character, hovering be- 
 tv,'een two inconsistent alternatives, neither of 
 which sujiported the conclusion suggested by the 
 pltader,adeniurrerforwantof equity was upheld. 
 Theeouit will regaid the intuitus with which 
 the allegations in a bill of complaint are made, 
 and will not allow the prayer tor general relief 
 to control the obvious frame of the record. The 
 primary object of the bill was to enforce a con- 
 tract of sale of land between N. an insolvent, of 
 whom the plaintill' was assignee, and one C N. 
 was made a party lecause, as the bill alleged, 
 said C. K. pietiiidtd that ( ne L. who had ad- 
 vanced money to N. on the security of the 
 property, had conveyed his interest to C., while 
 the p!aintitl ehaiged the contrary, and alleged 
 that if suiii conxeyanee was made yet it vas 
 without value, and made to defeat ^.'s and L."s 
 creditois. A demurrer by C iN. was allowed, 
 on the grounds above mentioned, and beeau.se 
 the bill was multilarious. O'unn v. frunl and 
 Loan Co. et al, 2 O. It., Chy. D. 393. 
 
 Misjoinder of parties is, since the Judicature 
 Act, no longer a ground for denwrrer. Youny et 
 al. v. lioliirt.-<ou, 2 O. W., Chy. 1). 434. 
 
 In an action to set aside a conveyance of land 
 as a fraudulent preference, the non-averment 
 that the plaintifls suid on behalf of all other 
 creditors is not ground for demurrer, but a mere 
 informality, to lie dealt with under O. J. Act, 
 Rules 103, 104. In an action by a solicitor to 
 recover the amount of a bill of costs, the fact 
 that he d(je8 not, in his statement of claim, al- 
 lege that the bill was delivered a month before 
 action bmught, is not now, any more than before 
 the Judicature Act, ground for demurrer, but 
 only for detence. Scant et al. v. JJuckett et al., 
 3 0. K., ('hy. D. 370. 
 
 In an action by the Attornoy-General, u])on 
 the relation of the Uursar of Toronto University, 
 to recover possession of certain lands claimed to 
 1)6 vested in Her Majesty for the benefit of the 
 University, the defendants jdeailed that the said 
 lauds had been, with the assent of the Univer- 
 sity and bursar, taken possession of by them for 
 the purposes of their railway under their statu- 
 tory powers, and that they had since retained 
 and then were in possession thereof, and they 
 also pleaded the statute of limitations: — Hell, 
 on dennirrer, that it was not necessary to set out 
 specilically the statutes alluded to, in the various 
 pruueedings couueuted with the expropriation of 
 
 30 
 
 the land, and the defence was not objectionable, 
 upon demurrer, on the groand of want of cer- 
 tainty, by reason of its merely general allegation 
 of compliance with the statutory requirements : 
 — Held, also, that the mere allegation that the 
 defendants were in possession alioided a good de- 
 fence in law in such an action, and ))Ut tiie plain- 
 till' to the proof of his eau.se of action, under 
 l{ule 144. Attorneii-Ueneral v. The Midland li, 
 W. Co., 3 0. E., Chy. D. 511. 
 
 In the case of a partial demurrer to a pleading 
 under Rule 1S9, if any one or more paiagrajdis 
 be demurred to, the court will look at any other 
 paragraph or paragraphs bearii'g on the same 
 matter of defence, and if the whole taken to- 
 gether disclose a suiricieiit defence, the demurrer 
 ! must be overruled. When a pleading s ambi- 
 I guous or uncert.iin, the jiroper reinedy is to 
 I apply iu Chambers to strike out or amend the 
 detective matter, and a demurrer on that ground 
 , will not lie. lb 
 
 \ Held, in this case, that the demurrer being 
 partly successful, and partly unsuccessful, neither 
 p.irty should get costs. Jh. 
 
 When upon the argument of an ajipcal, the 
 
 respondent omitted to point out in what respect 
 
 , the reidications of the plaintill were demurrable, 
 
 , the court refused to wade through the mass of 
 
 pleading which had been tiled in the court below, 
 
 , to Hnd it out for themselves ; and being of opinion, 
 
 I in the absence of argument, that the pleading 
 
 was good, affirmed the jud<:nient of the c<iUrt 
 
 below upon such pleadings. 'J'lie unnecessary and 
 
 improper length of pleadings remarked ujion. 
 
 (Juiulan V. The Union Fire Ins. Co., 8 A. li. 37(5. 
 
 VII. Adding and A.memuno Pleas. 
 
 1. GenentU;', 
 
 Action on a life policy. The applieatio' (on- 
 tained a number of questions and answers, ".1 at 
 the foot was a declaration, signe<l by the assure4l, 
 that to the best of his knowledge and belief tlie 
 foregoing statements and other particulars were 
 true : that the declaration should finni the basis 
 of the contract ; and that if any untrue aver- 
 ment had been iiiteiitionallj' made therein or in 
 the rejilies to the company's medical adviser iu 
 connection therewith the policy should be void. 
 By the policy the declaration and "relative 
 papers" were made the basis of the contract, with 
 a pro\-iso that if any fraudulent or wilfully un- 
 true material allegation was contained in s.iid 
 declaration ; or if it should therealter appear that 
 any material information had been withheld, and 
 any of the matters set forth had not been truly 
 and fairly stated, then the Jioliey should be void. 
 To the questions in the aiiplication as to the name 
 and residence of usual medical attendant, and for 
 what serious illness had he attended, the assured 
 answered " none " : and to the questions by the 
 medical adviser as to what other disease or per- 
 sonal injury and from whom had he received 
 professional assistance, kc, the assured answered 
 " none." It was found that these answers were 
 wilfully untrue, and that tiie inform:itiou was 
 wilfully withheld from and was materi.il to be 
 stated to the company : — Hehl, tiial tliese an- 
 swers constituted a breach of the express con- 
 tract between the parties and there oie the policy 
 was void. The pleas setting up these defences 
 
611 
 
 PLEADING. 
 
 612 
 
 r 
 
 I'" 
 
 
 
 were added at the tiial, and after the case had 
 been in j)nigre.s8 for some time. Tlie action was 
 commenced before the Judicatnre Act came in 
 force, Unt tiie trial took ))lace there ifter: — HeM, 
 tliat, whotlier under sec. 8 of the Administra- 
 tion of ■lustiee Act, or under Rule 128 of tiie 
 Judicature Act, the jileas were proijerly added. 
 Jfiinxfl/ V. '/'//(' Ciiiuvht Life A-i.tuniiicc Cu., 32 C. 
 r. '2r,G. AHirmed, 8 A. R. 71(>. 
 
 Allowing plea of promissory notes being in- 
 sufficiently stamped. — Pleading want of stamps. 
 .See (.'iiit'llliU V. CInrki', 3 O. R. 209, p. 74 ; .S'. V. 
 9 P. R. '471, p. 74. 
 
 The judgment of tie court below (32 C. P. 
 131) overrule<l tlie demurrer on the assumption 
 that the plea had been amended according to 
 leave given, but the appeal book did not shew 
 the amenclmont to have been made, and the de- 
 fence as set out in the printed case was held b d 
 on demurrer, and the appeal by the plaintiff 
 allowed wit); costs. Cameron J., dissenting, 
 who tbong'it th.it under the circumstances the 
 plea shoi'id be tr(ate<l as amended pursuant 
 to leave granted by the court behtw, and 
 that the judgment of the court below which was 
 in the t pinion of this court riglit as it was giv n, 
 shouh' not be reversed. liut>wdl v. SiUlwrland, 
 8 A. R. 233. 
 
 O. was a member of Court Maple of the de- 
 fendants' order, and was insured under the en- 
 dowment provisions thereof for §1,000. This 
 court left the order in a body and joined another 
 order of Foresters, and it was in consecjuenee 
 suspended. On joining the new order it was ar- 
 range<l f'ltO. , who was in ill-health and had 
 jjwue to California for change, slwrnld be taken 
 and insured with the others. By the rules of 
 defemlants' order members of suspended courts 
 in good st.anding at suspension were, on applica- 
 tion within tliirty days, to the sui)reme secre- 
 tary, and payment of a fee of $1, to receive a 
 card of membership .and be entitled to the en- 
 dowment, provided they p.aid all assessments as 
 they fell due, and affiliated with another lodge 
 of the order ; but, if after thirty days, they 
 must pass a medical examination. On his re- 
 turn from California, O. on ascertaining that the 
 Court Maple had been suspended, within the 
 thirty day.s, being then in good standing, applied 
 to the defendants supreme secretary for his card 
 of membership, tendering §1 and assessments 
 due, which was refused on the grounil that a 
 medical certiticate w.as necessary. O., by reason 
 of his not having the card, was prevented from 
 affiliating, though he endeavoured to do so, with 
 another court. By the endowment certificate 
 the SIOOO w.as payable to the widow, orphans, 
 or legal heirs of O., and by endorsement therecm 
 O. directed the amount to be paid to the plain- 
 tiff, the widow. At the trial an amendment was 
 asked, to set up a forfeiture of the jwlicy by rea- 
 son of 0. having gone to California without a 
 permit, which was refused by theju<lge : — HeM, 
 under the circumstances the refusal was proper. 
 Qutere, whether the way, cause, and manner in 
 and for which 0. and the other members of 
 Court Maple left it and joined in a body another 
 order might not, if properly pleaded, have re- 
 quired some consideration. The frame and effect 
 of the pleadings in this case considered. Oates 
 V. T'/te Supreme Court of the Imlependent Order 
 o/ForeoUn, 4 0. K, C. P. D. 535. 
 
 VIII. When Cau.se is at Is.si7e. 
 
 A cause is at issue where a joinder of issue 
 has been delivered, or where three weeks have 
 elapsed after statement of defence has been de- 
 livered. Schneider v. Proctor, 9 P.R. 11. — Dal- 
 ton, Master. 
 
 IX. COSTO. 
 
 Where the original plaintiffs in an action were 
 not entitled to any relief but by amendment, 
 and a party was added to whom relief was 
 granted: — Held, that the defendants were en- 
 titled to costs of the action up to the date of the 
 amendment. Clarknoii et at v. IVhitc et at, 4 0. 11. , 
 Chy. D. (j(i3. 
 
 See Wiiodwrtrd et at v. Shields, 32 C. P. 282, 
 p. 60(5; Sriitt V. Creii/htoii, 9 P. R. 203, p. (i07; 
 Ctarke v. McEwiii;/, 9 P. R. 281, p. «07; Schwob 
 V. McGlouijIdiii, 9 P. R. 475, p. 003. 
 
 (Before the Judicature Act, 18SI.) 
 
 PLEADING AT lAW. 
 
 I. General Principles. 
 
 1 . Eiiiharramiifj Pleadings. 
 
 The plaintiff alleged in one count in trover 
 ! that the defendant converted to his own use, or 
 j wrongfully deprived the plaintiff, &c. :— Held, 
 |overrnliug Hain v. McKay, 5 P.R. 471, that the 
 , count was not embarrassing. Taylor v. Adartw, 
 8 P. R. GO. — Dalton, Q. C. 
 
 I The C. li. P. Act, (R. S. 0. c. 50), s. 120, em- 
 powers the court or a judge to strike out pleas 
 j not merely where they are embarrassing, because 
 I confused in terms and so difficult to understand, 
 I but wliere they combine sever.il djfences in one 
 plea, or are repetitions of a defence already 
 pleaded, and may thus be embarrassing, or pre- 
 judice a fair trial. In this case, being an action 
 on promissory notes, the defendant having plead- 
 ed total failure of consideration, a(Med other 
 pleas repeating that defence, an<l setting up 
 besides another agreement, not necess'irily con- 
 nected witli the notes, and so stateil as to leave 
 it uncertain whether it was iutiuided as a separ- 
 ate defence or as supporting the otlier defence : 
 — Held, affirming the judgment of Cameron, J., 
 that such pleas were properly struck out. Abell 
 V, McLaren, 31 C. P. 517. 
 
 2. Departure. 
 
 To the plea of " non est factum," the plaintiff 
 replied on equitable grounds, alleging that the 
 defendants accepted the deceased's application 
 for insurance, and that the policy was issued and 
 acted upon by all parties as a valid policy, but 
 that the seal was inadvertently omitted to be 
 affixed, and claiming that the defendants should 
 be estopped from setting up the absence of the 
 seal or ordered to affix it : — Held, a good repli- 
 cation and not a departure from the declaration. 
 tyriijht V. London Life Inn. Co., 5 A. R. 218. 
 
 Action on a debenture, by which the defend- 
 ants agreed to pay to the bearer £200 stg. at the 
 
612 
 
 613 
 
 PLEADING. 
 
 614 
 
 Issue. 
 
 iiider of issue 
 le weoks have 
 ! has been de- 
 
 ^R. 11.— Oai- 
 
 an action were 
 Y amendment, 
 im relief was 
 ants wore en- 
 the date of the 
 U't't al, 4 0.11., 
 
 32 C. P. 282, 
 I. 2r):{, p. (!07 .■ 
 p. t)07," Sckwuh 
 
 1881.) 
 
 [\y. 
 
 ES. 
 
 ing.i. 
 
 ount in trover 
 his own use, or 
 Hf, &c. :— Held, 
 !. 471, that the 
 iijlor V. Adams, 
 
 50), s. 120, em- 
 strike out pleas 
 rassing. because 
 
 to understaiiil, 
 defences in one 
 lefeiice already 
 rrassing, or pre- 
 being an action 
 lit having plead- 
 I, added other 
 vnd Slitting up 
 neeessivrily con- 
 ited iia to leave 
 ideil as a separ- 
 
 othor defence : 
 jf Cameron, J., 
 uck out. Abell 
 
 n," the plaintiff 
 lleging that the 
 jd's application 
 { was issued and 
 alid policy, but 
 
 omitted to be 
 fendants should 
 
 absence of the 
 d, a good repli- 
 the declaration. 
 
 5 A. R. 218. 
 
 ich the defend- 
 £200 atg. at the 
 
 office of a named bank, .and on a named day, 
 upon presentation and surrender there of the 
 debenture. Averment of performance of all con- 
 ditions precedent. Breach non-payment of the 
 principal sum ;— Held, by Osier, J., and afBrmed 
 by the full court, that the presentation and 
 surrender of the debenture at such place and 
 date were conditions precedent, and the perform- 
 ance of such conditions having been averred in 
 the decl-'"ation, a replication alleging presenta- 
 tion on a later day was a departure. The Mon- 
 trml Cih/nnil Dhlrkl Sariugn Banh v. The Cor- 
 pomtioii of the Countij of Pa-th, 32 C. P. 18. 
 
 3. Certainty and Partiailarittj. 
 
 Declaration, that D., by writing, for valuable 
 consideration, duly assigned to plaintiff the sum 
 of S'iOO, money due .and to become due to D. by 
 df'fi'nilants, whereof defendants had notice in 
 writing, .and at the time of and after said assign- 
 ment, and after said notice, .and before .action, 
 defendants were indebted to D. in money suffi- 
 cient to p.ay the sum so assigned to plaintiff, &c.: 
 — Held, on demuiTcr, bad, .as not setting forth 
 any fact from which the existence of .and prom- 
 ise to pay a debt would be implied by law. 
 Mitchell e. Goodall, 44 Q. K 3!t8, an.l Brice v. 
 Bannister, L. R. 3 Q. B. D. m% distinguished. 
 Smith V. The Corporation of Ancanter Township, 
 4,'j Q. B. 86. 
 
 To an action for maliciously making demand 
 for an assignment under the Insolvent Act the 
 defendant's third jdea after setting up a variety 
 of dealings between the parties, shewing that 
 the plaintiff had from time to time failed to meet 
 his engagements with defendants, concluded that 
 the plaintiff being indebted to the defemlants in 
 the sum of §1,400, and being un.able to p.ay the 
 8<ame or to meet his engagements, .and the pLain- 
 tilf being .also to the knowledge of the defendants 
 indebted in large sums to divers other persons, 
 creditors of the plaintiff, the defendants bona 
 fide believing the plaintiff to bo insolvent within 
 the meaning of tlic Insolvent Act of 1875, and 
 amending Acts, and having reason.able and pro- 
 bable cause for so believing, Jind without malice 
 made a dem.and on the plaintifl', &c. : — Held, a 
 good plea, .although it was not expressly averred 
 in the words of sec. 4 that the plaintiff li ul ee.ased 
 to meet his liabilities generally .as they became 
 duo, Quiv!rc, whether that expression means his 
 liabilities to the particular creditor or to his cre- 
 ditors generally. Naqk v. Timmim et al., 31 
 C. P. 221. 
 
 Sec Corporation of the Town of Peterborough v. 
 Edwards, 31 C. P. 231, p. 27. 
 
 II. Declaration. 
 
 1. Venae. 
 
 In ail action for damages caused by the non- 
 repair of a highway in the county of York the 
 venue was laid in Peel, but the declaration did 
 not state in what county the highway was situ- 
 ate. The venue lieing admitted to be wrong, 
 plaintifif was allowed to amend his declar.ation. 
 Brown v. The Corporation of the Counti/ of York, 
 8 P. R. 139.— Dalton, Q. C. 
 
 In .an action wherein the sheriff is pl.aintiff or 
 defendant, the ojiposite ])arty, if he so desires, 
 may h.ave the action tried in the county .adjoin- 
 ing that in which the sheriff resides. Branneii 
 V. ./rtryi.9, 8 P. R. .322,— Gait. 
 
 2. Changing Venue. 
 
 Held, that there is no appeal to the full court 
 in term from ,au order of the clerk of tlie Crown 
 and Pleas, m.ado on an application to change the 
 venue in County Court cases under 11. S. O. c 
 50, 8. 155, but the only appeal in such cases is 
 to a judge in chambers umlersoc. 31 of tlie Act : 
 — Hehl, however, that if an appeal did lie to tlie 
 full court it migiit be made direct thereto with- 
 out first going before a judge in chamliers. Sem- 
 ble, in such cases the proper course is to follow, .as 
 laid down in the Act, the practice in force in the 
 Superior Courts, and that the mere fact of tlie 
 cause of .action having arisen in the comity to 
 which it is sought to change the venue is not, of 
 itself, sufficient to outweigh any .actual prepon- 
 der.ance of convenience arising from other causes 
 in favour of retaining tlis venue where the plain- 
 tiff had laid it. Mahon et al v. JSicholls, 31 C. 
 P. 22. 
 
 3. Time for Dtdarimj. 
 
 I A plaintiff must declare within one ye.ar after 
 the service of the writ of summons, inclusive of 
 the day of service. Miirckisoit v. Canada Far- 
 
 ' niem' Jns. Co., 8 P. R. 451.— Dalton, Q. C. 
 
 4. Form of. 
 
 Remarks as to the proper form of declaration 
 
 in an .action for negligence in investing money 
 
 where the defendant was not paid by the lender 
 
 but by the borrower. Carter v. Hatch, 31 C. 
 
 ; p. 293] 
 
 III. Pleas in Abatement. 
 
 The defendant pleaded to .an action in a Su- 
 perior Court, on a Wiit specially endorsed for 
 ij410, that there was a suit pending in a County 
 Court brought by the plaintiffs against the de- 
 fendants, for the s.ame cause of .action ; — Held, 
 tbat the plea sliould aver that tlie cause of 
 action in the first suit was within the jurisdiction 
 of the County Court. Morgan v. Ault, 8 P. R. 
 429. -Dalton, Q. C. 
 
 The plaintiff brought his action for damages 
 caused by the non-repair of a highw.ay in the 
 county of York, and Itvid the venue in Peel, but 
 the declaration did not state in wh.at county the 
 nighway was situ.ate. Defendant pleaded not 
 guilty ; and (2) that the court ought not to have 
 further cognizance of the action, because the 
 cause of action is local, .and arose in the county 
 of York .and not in the county of Peel : — Held, 
 that this was properly a defence in bar, and not 
 in abatement : — Hehl, that whether a plea in 
 .ab.atemont, or to the jurisdiction, it could not be 
 pleaded with a plea in bar. Brown v. The Cor- 
 poratio'x of the County of York, 8 P. \l. 139.- - 
 Dalton, Q. C. 
 
€15 
 
 PLEADING. 
 
 G16 
 
 IK 
 
 r 
 
 J' 
 
 1^ 
 
 IV. Time Fon Pleadino, 
 
 A ''L-fen<laiit Ims four days only to plead to a 
 new afBi^'imiiiit. MrDoiwkl v. MrKhiuon, 8 1'. 
 R. 13.- i>alton, Q. V. 
 
 V. 1'lka.s in B.ak and Scd-seqient Pleapikg.s. 
 
 1. Suiitliter. 
 
 With his joinder of issue, the plaiiitifr served 
 liotiee ot trial for the ( hamery sittings. ]»e- 
 ftudant aitt rvards .'■eived a similiter and jury 
 notiee :— J^leld, that the .'-iniiliter and jury notice 
 were good, and that tlie notice of trial inust he 
 act aside. Mrl.onn v. J/tf/any, 8 1'. 1{. 54. — 
 Dalton, y. ('. 
 
 The jdaii.tifl' j( ined is.'-ue ujion defendant's 
 pleas and at tin i-anie liiiie filed a ^iniiliter, Mitli- 
 out a jury notiee, for the defendant. After- 
 wards the ileieiidant (iled a second sinnliter, and 
 with it a juiy notiee ;— Held, that detcnilant 
 should have Ided a jniy notice with his pleas; 
 that the lii.st bin.iliter vais ycjod, that the seconil 
 was nniKcitsaiy, and nust, together with the 
 jury notiee, he struck out as had. limit v. 
 CiuiMU, 8 P. K. 137.- Ilalton, Q. C. 
 
 2. Othir Cases. 
 
 Held that it was no ohjeetion to a replication 
 that it i-lnwed lor Ihet'rst tine that intiu.st eidy 
 was claimed, for that 1 eiiij. nnrdy an accets^oiy 
 to the J lii I ipal, jicid nol he elainnd as daniagis. 
 Moiitridi i iiij mill I'l^iiiil .Son'/.;,.-- Lunk v. tor- 
 IMulii.u oj (U( CoKiilii tfj I'lilli, 32 (J. 1'. 18. 
 
 Ikld, that a plea which, aftci' tiaveising the 
 prtsti.tation of the dij.d.turc nu do ct foinia, 
 alleged it wa^ aftciA\aidw paid ai.d was then duly 
 8urrei,der(d to the delcndaids, was a goi^d jlta, 
 as the plainlifis, l.y c.xccjiting to it, admitted 
 pajnicnt of the jirincipal .'^uni. which would in- 
 clude the m uiinal dauia^es, il any, alone iccov- 
 erable l(jr its detention, while the s-urrender of 
 the dthentine W( nld shew that the paynient was 
 in sati.'faction and dischai^e of the del it, if not 
 of the damages also ; that it was no an.^wer to 
 the plea to s:iy that the .-urrinuer heiore the 
 damages vere [laid was hy nieie oversight and 
 inadvertence so long as it appeared to he inten- 
 tional ; hut that it would he a gocjd answer to 
 gay that suth deliveiy was on the express agree- 
 ment that the right to damages was reserved : — 
 Held, also, that alter failure to Hiake a due pre- 
 sentation, there coidd he no recovery until a de- 
 mand was made for payment, w hich must he made 
 ou the defendants. Osborne r. Preston & Herliu 
 11. AV. Co., 9 C. P. 'J41, and Fellowes c. Ottawa 
 Gas Co., ISKJ. P. 174, commented upon. //;. 
 
 In an action for calls defendants pleaded that 
 plaintiU's' license had heen susiicnded :— Held, 
 ou diniurrer, that the defence hho(d<l have alleg- 
 ed notice in the Gazdtc of the su.'^ptnsioii of the 
 icense, ]iursuant to K. S. () e. ICO, s. 34, and 4'_' 
 Vict. e. '25, 8. ;<. sr.h-s. 7, hut an amendment was 
 allowed, this jioint not having h(i;n taken, Cni- 
 onFhf Jus. Cu. V. Li/mon, 4t) Q. P. 471, 
 
 The declaration alleged that the defendant 
 laid an infoi mat ion that certain harness had heen 
 stoleu by the plaintill', whereas the informa- 
 
 tion proved was qualilicd by the addition of the 
 words " as he .".uiipcjsed" : — Held, no variance. 
 Culhtrtv. Jlh-hi, 5 A. 11.571. 
 
 The plaintifl' lent P. a sum of money, for se- 
 curing the repayment of which P. gave a chat- 
 tel mortgage on goods which P. was to retain 
 possession of, and the defendant executed a bond, 
 conditioned that in default of paynient the goods 
 should be forthcoming for the purpose of seizure 
 and sale under the mortgage, licfore the day of 
 payment arrived the goods were destroyed by 
 tire, and an action having been commenced against 
 the (lelendant on his bond, he pleaded the fact 
 of such destruction without any delault on his 
 part : — Held, bad on demurrer, for not negativ- 
 ing any delaullon the part of P. {Cameron, .J., 
 dissenting.) liui^inll v. .Siilln rktiid, 8 A.K. 'J33. 
 
 ISee Crifiyhtun v. Cliltikk ct al., 7 >5. C. il. 348,. 
 p. ot). 
 
 VI. EiiiTiT.viiLE Plea. 
 
 Declaration u])on a promissory note, lliird 
 plea, "that the defendant made the said note 
 with and for the acccjnmuidation of one \\ . C, 
 at the request of the plaintitis, in respect of a 
 pre-c.xistirg debt, then due to the plaintills, by 
 the said \\ . ('. alouc,and the s: id note wasdrawn 
 p.'iyaliie on dcmaml, witii intcicst at ten per 
 cent., ami except as afoieaaid there was never any 
 value or c(insi<leiati<'n for the making or pay- 
 ment ot the said note by the delentiant. ' fourth 
 plea, on eijuit.iblc grounds, that the dcliiidaiit 
 made the note j(jii.tly and severally Viith \\ . V. 
 for his acct Uimodation, and as his surety only, to 
 secure li debt due to the plaintills, and tliat after 
 the ixjfe becanie due the plaintills g^ive \V. ( '. an 
 cxtiUMon of time foi- the pa^niLiitoI the note : — 
 Hi Id, that the third [ilea was good, for it shewed 
 that no extension of time had been given, and 
 tberelore that there was no considiiation, and 
 that the fourth v\as not an (Mjuitalile plea, and 
 niust be ameiuled by striking out the \\olds, 
 " upiiii eijuitaiile grounds, ' and the jury imtice 
 served 'with it allow eil to stand. Mifilmutii 
 Bui.kx. liobiu,-<uii 8 P. K. 117.— Dalton, (,>. C. 
 
 VII. Demirrer. 
 
 A count having been drawn so as to invito a 
 demurrer the demuirer was overruled without 
 costs. iSmith V. t'urjjoraiioii uj Aitcader Town- 
 mnj, 40 (i. B. S(j. 
 
 VIII. Amekument ok Pleauinos. 
 
 1. PmlifS. 
 
 In ejectment the plaintifl' obtained a verdict, 
 but as the defendant had nuidc improvements ou 
 the land under a bona tide belief that the land 
 W..S his own he was held entitled to the relief 
 given by lU .S. O. c. 115, s. 4, and the Master in 
 t liancciy at Ottawa was directed to ascertain the 
 value ot such improvements and report thereon 
 w Inch he did. A rule nisi having been obtained 
 to refer back the nport for the reasons stated, 
 it appealed that after the report the defendant 
 dieti intestate, and that no personal representative 
 had heen appointed, leaving a widow w ho w as re- 
 siding ou the laud in question and a sun by a 
 
Glff 
 
 617 
 
 PLEADING. 
 
 618 
 
 (lition of the 
 uo vaiiiniue. 
 
 uiiuy, for se- 
 
 guvo a cliat- 
 
 vas to letaia 
 
 utuil a bond, 
 
 lit the goods 
 
 ose of bcizure 
 
 re the dny of 
 
 Itstioyed Ijy 
 
 need against 
 
 uied tlie faet 
 
 etault on his 
 
 ■ not negativ- 
 
 (C auieion, .J,, 
 
 , S A.K. -SXi. 
 
 S. C. K. ;M8, 
 
 note. Third 
 tlie paid note 
 of one W. C, 
 
 res[iect of a 
 Iilaiiitills, hy 
 ote was drawn 
 t at ten jier 
 was never any 
 iking or I'ay- 
 ant. ' J'ourth 
 Ihe deii lulant 
 ly v>ith \\. V. 
 luety only, to 
 and that ;.fter 
 gave \V. C. an 
 vl the note ; — 
 , for it hliewed 
 jen given, and 
 ideiation, and 
 alile (ilea, and 
 it tlie -rtciiiU, 
 lie jiuy iiiitiee 
 
 1. j/( /•(7'(((/(^v' 
 
 Jalton, (^ C. 
 
 ) as to invite a 
 ruled without 
 Hauler Town- 
 
 ADIN{;.S. 
 
 led a verdict, 
 jrovenieiits on 
 that the land 
 . to the lelief 
 Lhe Master in 
 .1 ascertain the 
 eport thereon 
 been obtained 
 L'at-ons stated, 
 Lhe di feiidant 
 reiueselitative 
 u who was re- 
 d a suu by a 
 
 former wife but no children lij' the second wife, 
 and also that clefendant had assigned all his in- 
 terest in the sum to be found due for inijirove- 
 nients to a loan societj'. The court permitted the 
 plaintifT to amend hia rule nisi by calling on the 
 w'idow or eon of the deceased .and on the loan so- 
 ciety to siiew cause wliy tlu y should not be made 
 parties to tho suit ami why the former should 
 not he ai)pointe<l under A. J. Act, a. 9, to rei)re- 
 sent the estate of the (tefendant for the purposes 
 of this motion and all subsequent jiroceedings in 
 the reference, and why in that event the relief 
 asked by the rule should not be granted. The 
 rule to be returnable on fourteen days' notice 
 before a single juilge. McCarthy v. ArlmcMc, 31 
 C. P. 48. 
 
 Leave was grintod to amend a declaration 
 whore "the (Commissioners of the Coboarg Town 
 Trust" were sued as a corporation, by substitut- 
 ing the names of the commissioners. McShi'rr;/ 
 V. Ciir/KirnHoH o/'l/ic Colioun/ Town Trust, 45 Q. 
 B. L'40. 
 
 After issue joined one of two plaintiff's gave to 
 the defendant a reloise under sed of all actions 
 and deminds. Tho defendant thereupon moved 
 to st:(y all proceediii:,'s in the suit:— Held, that 
 the defendant should plead the release, .and that 
 he was not entitled to a stay of proceediiigs, and 
 the remainins; ]ilaiiitifr was allowed to strike out 
 the name of the other plaintiff. McAlpine et al. 
 V. C'lrliii;/, 8 P. R. 171. -Osier. 
 
 of tho surviving brothers and sisters of the in- 
 testate filed iv bill against A,, to which they 
 made all the next of kin of tho intestate partiea, 
 calling upon A. for an account of rents received, 
 and seeking to restrain him from further inter- 
 meddling tlicrewith. The court [Sjirairge, C] 
 on demurrer by A, held the bill was not multi- 
 farifms. Yoxikj v. Wr'njlit, '1~ Cliy. 3'J4. 
 
 See Campbell v. CampMI, 20 Chy. 2,")2, p. 62a 
 
 2. Olhrr Caws. 
 
 The plaintiffs applied at the trial to amend 
 their declaration by striking out a term of the 
 bargain therein alleged, but not proved, thiit the 
 plaiiititls would sell as much of the tea as they 
 could:— Held, an amendment which was impera- 
 tive under R. 8. O. c. 50, s. 270. Lumnden et al 
 V. nnri.% 4(1 Q. B. 1. 
 
 A<lding plea of fraud, in action against surety, 
 at second trial. Sec Thr Corptration of the Vil- 
 laijc of(7ananoijw v. Stuii'len, 1 0. R. 1. 
 
 Power of Supreme Court to allow amendment. 
 See 7'//.' South n','.,t lioom Co. v. AfrMliran, 3 S. 
 C. R. 700 ; Afoinr V. yVc OoiiiicrlinU Mutual 
 Life Jilt. Co. of Hartford, G S. C. U. 634. 
 
 IX. Waiver of Ob,if.ctions. 
 
 The obtaining of an order for time to reply 
 waives an objectiou that no notice to reply was 
 ■servjd, and takes the place of such notice. Lock 
 .v. Todd, 8 P. R. 60.— Dalton, Q. C. 
 
 (Before ihe Judicature Act, 1881.) 
 
 ' PLEADING IN EQUITY. 
 
 L Bills. 
 
 1. Form of. 
 
 (a) Multifariousnem, 
 
 The owner of real est ite died intestate, and A. 
 the husband of oue of his sisters, took possession 
 of tho property and appropriated to his own use 
 (the rents and profits thereof, whereupon some 
 
 (b) Certainty ami ParticHlariti/. 
 
 In a bill seeking to obtain the benefit of a sale 
 of land freed from the do'ver of the widow of the 
 deceased owner, it was alleged that he had died 
 at such a time as would, if true, bar the widow's 
 rigiitto dower, and submitted "that the defen- 
 dant K. B. (the! widow) is not entitled to ilower": 
 — Hold, a sutficiont alle,'ation that tho defen- 
 dant's right to dower was barred bj' the statute, 
 though it om tted to state that this was the legal 
 result of any particular statute. Baiks v. Bell- 
 amy, 27 Chy. 342. 
 
 Tn a bill filed by a mortgagor against his son, 
 a bi<lder at tho sale by another of the defendants, 
 i a loan comp my, to which bill t!ie company and 
 one 15. were also <lel'endants, it was alleged that 
 it had been agreed lietweeii the son and B. that 
 in consideration of the son securing to B. a debt 
 of tho plaintitf, B. would advance the deposit 
 necessary to enal)le the son to buj the land at 
 the sale ; that tho son sbouM attend and buy in 
 the land which he accordingly did that in con- 
 seijuence of B. 's refusal to mike the promised 
 advance the son was unal>le to carry out the 
 sale ; that tho bidding oi the s m deterred others 
 present from bidding, anl that B. afterwards 
 privately bought the land at a great under value 
 to the loss of the plaintiff: — Held, on demurrer 
 that the bill sutfloiently, though inartiticially 
 alleged that by reason of B.'s agreement and 
 refusal to make the advance agreed upon, he had 
 occasioned an abortive sale and jirofited thereby 
 to the loss and damage of the plamtiff. Camp- 
 ion V. Brarb'nrid'je, 28 Chy. 201. 
 
 The bill stated that the plaintiff was grand- 
 son of L., who hid died intestate : — Hold, that 
 this did not authciently state the title of the 
 plaintiff. Lario v. Walker, 28 Cliy. 216. 
 
 A railway company paid to tenants for life 
 tho full price of the land conveyed by them to 
 the company for their line of railway, and on 
 the cesser of the life-estate the parties entitled 
 in remainder tiled a bill stating that the railway 
 company assumed to purchase the lands for the 
 right of way ; that the company alleged that 
 they had p.aid the full consideration for the land 
 to the tenants for life ; submitting that if the 
 company did make such payment they did so in 
 their own wrong, and asking for payment of the 
 plaintiff's share of tho piirciiase money : — Held, 
 (1), that the word "assumed" waa a sutficient 
 allegation of tho fact of sale and conveyaace. 
 But (2), that the statement that the company 
 " alleged " that the purchase money was all paid 
 to tho vendors was not such a positive statement 
 of the fact of payment to the tenants for life as 
 to make them proper parties to the bill, and a 
 demurrer was allowed on this ground. Omntoit 
 V. Tlie Orand Trunk R. W. Co., 28 Chy. 428. 
 
CIS 
 
 PLEADING. 
 
 62^ 
 
 
 •If 
 
 
 (c) Prayfr for Gfu<rul Itelkf. i 
 
 If tlie alli'L'atioiis in u bill htatc u (.'usc entitling I 
 a party t«) I'uTicf, lie may under the general |irayiT I 
 liJive it, tlidugh liiH mituific: prayer may have' lucn ] 
 liir (itlier relief ; but a |>laintili cunnot take ail- | 
 vantage of tlie aniliiguity cif iiis own jileadingl 
 »o aH to claim u|i(iu lactH ntateil in tlie bill alio 
 intuitu, u iiliel entinly fortign to the seope of 
 the bill. 1'lie bill, whieli was tiled against the 
 cxecutorH of ('. S., liis widow and ehildren, prayed 
 that the proeeeda of an inisuranue policy which 
 had been eilectcd by the iliceaHcd for liiw wife 
 and children should be sulijected in the hundH of 
 the executorw, to the payment of moneys lent by 
 the plaintill' to the deceased, and applied by him 
 to the su]iport of hJH children, and that the exe- 
 cutors might be restrained fron. ])aying over the 
 money. Jilake, V. f. . overr\iled a demurrer 
 thereto, and under the prayer ftir general relief 
 granted administration :- Held, revi rsiiig this 
 decision, that under the ciicumstunccH the [ilain- 
 titr was not entitled to the administration decree. 
 (I'aughun v. Shuvpe el al., G A. K. 417. 
 
 See Giinn v. TruxtuiHl Likui Co. ct al., 2 O. R. 
 ai>.3 p. (iO!»; Jrs^tq, v. (Iniml Trunk Jt. W. Co., 'A 
 A. li. 128. 
 
 2. CroKsBill. 
 
 The object of a cross bill ordinarily was to ob- 
 tain discovery on the part of the plaintitl' in the 
 cross cause to be used in the original uause ; or 
 in order to obtain full relief in respect of the 
 subject mutter of litigation in the original cause. 
 Therefore, where a bill was tiled to restrain aibi- 
 trators, on the ground of irregularity in their 
 appointment, from acting in respect of matters 
 in dispute between the plaintiff' .and defendant 
 companies, and the defendant company by their 
 answer asked tliat if the court entertained the 
 cose it should afford them relief in respect of the 
 matters in dispute between the companies: — 
 Held, that this was not the proper oilice of a 
 cross bill, and therefore could not be set up as a 
 subject of CI OSS relief by the answer. JJiiect 
 Cable Co. (Limited) v. Dominivu Telifi/rajih Co., 
 28 Chy. 1548. 
 
 taking to pay 8108, and the company made an- 
 assesi-nicnt on all notes and threatened suit in 
 the division Court for jiaymtnt of such assess- 
 ment, whereupon the plaintitl' filed a bill "on 
 behalf of himself and the other policy holders 
 associated with him us hereinafter mentioned," 
 alleging the comiiany was about to sue him and 
 the other jiolicy holders in said branch, that 
 large lo.sties hud occurred in the com|)aiiy p:ior 
 to the time of his ellcrting hi.s insurance, and 
 insisting that he and the other jiolicy holders 
 could be propel ly assessed only in respect of 
 such losses as had arisen since they entered the 
 company, ami praying that the necessary inciui- 
 ries ndght be made and accounts taken, alleging 
 that the Division ('oiirts had not the machinery 
 fir that piirjiose:— ileld, that according to the 
 statements of the bill, the policy holders in the 
 water-works branch were not represented in the 
 suit, and ii, demurrer on that ground tiled by the 
 company was allowed with costs. Ttiuinxov v. 
 I'icloriii Mutual Firr lu.i. Co. <t al., 29 (Jhy. 56. 
 
 The ))laintiir tiled her bill for alimony, alleging 
 that a conspiracy hud been entered into betwcea 
 her husband and the other defendant to prevent 
 her realizing any alimony that might be awarded 
 her, anel that for that purpose her liusband fraud- 
 ulently conveyed all his lands to the co-defen- 
 dant, and the bill jir.iyed to have such convey- 
 ance declared frauilulent. 1'he grantee in the 
 impeached conveyance demurred for multifari- 
 ousness, for want of e(|uity, and want of |)artio8. 
 The court (Hoyd, C.) overruled the demurrer on, 
 the first two grounds, but allowed the demurrer 
 for want of parties ; the plaintitl' not having re- 
 covereil judgment and execution, could only sue 
 in a representative capacity- that is on behalf 
 of herself and all other creditors. Longeway v. 
 Mitchell. 17 Chy. 1!)0; Turner v. Smith, 2(1 Chy. 
 198; Culver v. Sway/e, ///. ."JO."), and Moiiihy v. 
 Wilson, 27 <.'hy. I, considered and followed. 
 Caiiiphell v. CaviiMII, 29 Chy. 2.')2. 
 
 See T/ie Cily Li<ihl ami I/iiitiu<i Comi>aiiy el aL 
 V. Macfie et al., 28 ( hy. .%3, p. 023. 
 
 II. Parties. 
 
 1. Person* Suing on liehal/ of a Class. 
 
 'Where a suit is instituted by a judgment 
 creditor, who has not placeel an execution against 
 lauds in the hands ot the sherifi', in order to set 
 aside a deed as fraiululent, he must sue on behalf 
 of all creditors of the defenelaut, and the fact 
 that the deed was made by a third party in con- 
 sideration of money paid by the debtor does not 
 »lter the rule of pleailing iu this respect. Mor- 
 phy V. Wilson, '21 Chy. 1. 
 
 Where a right of suit exists in a body of per- 
 sons too numerous to be all made parties, the 
 Court will peimit one or more of them to sue on 
 behalf of all, subject to the restiictiou that the 
 relief prayed is one in which the parties whom 
 the plaintifi' professes to rcpieuent have all of 
 them an interest identical with that of the plain- 
 tiff. But where a mutual insurance company 
 lutd establithed three distinct branches, iu one 
 of which, the water-works branch, the plaintiff 
 insured, giving liis promissory note or uuder- 
 
 2. Ei-eculors and Ailmiiiistrutors. 
 
 An action for money liael and received will lie 
 wherever a certain amount of money belonging 
 to one person has improperly come to the hands 
 of another. Therefore where a railw ay company 
 paid to the executors of a tenant for lile the 
 sum payable for the fee simple of lands taken by 
 the company for the purposes of their road, 
 and subsequently the remainderman tiled a bill 
 against the coninuny and the representatives of 
 the tenant for life, seeking to obtain payment 
 from the company of the proportion of jnirchase 
 money payable to the remainderman :- Held, 
 that the executors were properly made parties 
 with a view to the company obtaining relief ovei 
 against them in the event of the company being 
 compelled to make good the money in the first 
 instance, and a demurrer by the executors was 
 overruled with costs, on the ground that the 
 company were entitled to a remedy over against 
 them for the amount overpaid them, and on 
 the additional ground that the bill alleged all 
 facts necessary to entitle the plaintiffs to a direct 
 decree against them, although the bill w as not 
 framed with a view to a direct remedy against 
 
G2(/ 
 
 ipany made an. 
 latfiicd suit ia 
 
 ')t SllL'll IINSISS- 
 
 I'd a bill "on 
 policy hohlirs 
 
 !!■ lIlLlltidllcd,'' 
 
 to su(! him iiiid 
 
 bruiK.'li, tliiit 
 
 cominiiiy piior 
 
 iiMUiiiiicf, and 
 
 Iiolicy holders 
 
 in reH])uft of 
 
 ey entered the 
 
 leeesaai'v iiM|iii- 
 
 taken, alleging 
 
 the maehinery 
 
 juording to the 
 
 li(dders in tlie 
 
 le.sented in tiie 
 
 ml liled by the 
 
 flioiiiKini V. 
 
 (/., 29(;hy. 5«. 
 
 imony, alleging 
 !d into hetweuiv 
 lant to prevent 
 gilt 1)0 awariled 
 liusband fiaiid- 
 o the eo-del'en- 
 i such convey- 
 grautee in the 
 for uiultifiiri- 
 naiit of parties, 
 he demurrer on 
 (1 the demurrer 
 ' not having re- 
 could only sue 
 at is on behalf 
 r.ongeway v. 
 Smith, «2(i ( hy. 
 and Morpliy v. 
 and followed. 
 52. 
 
 / Company el aL 
 G23. 
 
 dralors. 
 
 •cceived will lie 
 loney belonging 
 le to the hands 
 lilvvay company 
 mt tor lite thu 
 
 lands taken by 
 of their road, 
 man tiled a bill 
 iresentatives of 
 ibtaiu ]iayment 
 on of jiurchase 
 urman :— Held, 
 y made ]jartie8 
 ning relief over 
 company being 
 :iey in the tirst 
 
 executors was 
 ouud that the 
 :ly over against 
 
 them, and ou 
 bill alleged all 
 itifl'sto a direct 
 e bill was not 
 :-umedy against 
 
 C21 
 
 PLEADING. 
 
 62i 
 
 the executors ; for " the payment being nuide by 
 the eompany to the executors * • * ,,f 
 money, to a proportion of which the plaintill's 
 were entitled, and the payment being made with- 
 out the authority of the plaintitls it became 
 numcy had and received by the executors to the 
 use of the plaintitl's." OimIou v. The (J rami 
 Trunk li. \V. Co., 28 Chy. 431. 
 
 The bill shewed that the testator had appoint- 
 ed four executors, three of whom died, but Mtated 
 that those so dying had never received any por- 
 tion of the assets. In a suit for the administra- 
 tion of the estate, a demurrer ore tenus on the 
 ground that the representatives of such deceased 
 executors should ije parties, was overruled with 
 costs. \WliMir H <il. V. Lii/h el at., 28 Chy. 471. 
 
 The bill for the administ.'ation of the estate of 
 (i. K. alleged that (i. had appointed his brother 
 J. E. his executor, and devised to him all his 
 estate upon trust for the benefit of the testator's 
 wife and children as to J. would seem best ; 
 the will giving J. jiower to sell the realty. J. K 
 jiroved the will of (J., and shortly after his death 
 made his own will by which he purjiorted todis- 
 jiose of (J's estate, the validity of wliicli the bill 
 impugned, and C. S. D., a married daughter of 
 0., was made a defendant, the bill alleging her 
 to Iks the wife of .S. H.L). J. PL made an a|)point- 
 ment under (J. 'a will, whereby 0. S. I), became 
 entitled to a portion of the estate. The defend- 
 ant demurred on the ground that S.H.I), should 
 have been a party ; — Held, that the intrrest of 
 C. S. 1). was merely a chose in action not reduc- 
 ed into possession by her husband, in respect of 
 which she might be sued as a feme sole, and 
 therefore the ilemurrer was overruled with co.sts, 
 following l.awson n. Laidlaw, 3 A. R. 77. Sin'- 
 mii/ht v. Lei-s, 28 Chy. 498. 
 
 The bill in this ease distinctly charged that 
 the defendant had misapplied the moneys of the 
 estate of (i. mixing them with his own, and em- 
 ploying them for his own purposes, a demurrer 
 ore tenus that G.'s estate was not properly re- 
 presented, on the ground that one executor could 
 not represent the estates of both (.1. and J. was 
 also overruled with costs ; for although during 
 the progress of the cause it might become nece.i- 
 sary to liave ditl'erent persons represent the two 
 estates that did not constitute a ground of de- 
 murrer. Jb. 
 
 The idaintiflT tiled his bill against his two broth- 
 ers seeking administration of his father's estate, 
 of which he alleged they had possessed them- 
 selves on his death in 1848. It appeared that 
 the plaintitl' attained his nnijority in 18r)7. and 
 it was not proved that any fraud or concealment 
 bad been practised upon him : — Held, that the 
 suit w.is improperly constituted, as the fathers' 
 personal representative was not before the court. 
 Hiiylien V. Ihitjhvs el al., 6 A. R. 373. 
 
 3. Ilimband and ]]"ife. 
 
 Held, iiider R. S. O c. 125, that in an action 
 for a tort committed by a wife during coverture 
 the husband is not a proper party, but the wife 
 must 1k) sued alone. Amer v. Rojers el ux, 31 
 C. P. 195. 
 
 In a bill the style of cause named several fe- 
 males as being severally wives of their respective 
 
 linsb.inds, but the stating part of the bill did not 
 allege that they were mar: ied ; a ilemurrer on 
 tiie ground tliat their husbands were not named 
 as parties was overruled with costs. Wcbitler el 
 al V. Liijxet al, 28 Chy. 471. 
 
 In application for injunction in respect of 
 wife's property. See /lalhaway v. JJoi'j, A. R. 
 204, p. 342. 
 
 4. Of/nr /'i r.-'onx. 
 
 To an informati<m alleging th:it tint briilgo 
 erected by tlie Internalion.il Bridge Company 
 constituted a nuisance a railway eompany who 
 hail become lessees of the liridge wi re held to be 
 prii|)er parties. The Atlnniii/ lieiieral v. The 
 iiilernalional liridije Vu., 27 ( 'hy. 37. 
 
 The lessees of the road having been made jtar- 
 ties to the bill, the Court under the facts stated 
 in the report of this case relusel ridicf against 
 j them with eohts to be paid by the U-.s.sor eoni- 
 I pany. Caiiarou V. Tlic Willhujluu (Inii aiiil lirure 
 I ir. Ci)., and The Ureal WesUrn li. IT. Co., 27 li. 
 j Chy. 9.1. 
 
 The rule of erpiity is, that if any person not 
 made a i)arty to the suit be a necessary party in 
 I respect of any part of the relief pr.iyed liy the 
 I bill, it is ground of demurrer. \Vli(;ie, thereforo, 
 j a bill was tiled against the Dominion Telegr.ipli 
 Co., seeking to restrain that eoirijiany from 
 carrying out an agreement for the transfer of 
 teiegrapliic messages to the .Vmerican Union 
 Telegraph Company, on the ground that such 
 agreement was in contravention of an agrei'ment 
 ](reviously entereil into l)ctwei'n tlie plaiiitilland 
 defendant com[)anies for mutual exclusive con- 
 nections and exchange of telegraphic business, 
 without making the American Union Coiiijiany 
 a party, a demurrer for want of parties on that 
 account was allowed, with costs. Atlantic and 
 I'liciiie T(lii/raj)li Co. v. iJununion Telegraph Co. 
 '21 Chy. 592. 
 
 In a suit to set aside the nomination by the 
 defendants of an arliitrator on behalf of the 
 plaintitl's for irregularity in such nomination : — 
 Held, that the arbitrators l)eing ni'(;essary parties 
 and the defendants resident in this country, the 
 arliitrators, though resident out of the jurisdic- 
 tion, were properly made defendants to the bill. 
 Direel ('able Co. v. Dominion Tebyraiili. Co., 28 
 Chy. (!48. 
 
 A demurrer to a bill tiled by shareholders of 
 an incorporated comj)any on behalf of themselves 
 and all other shareholders except the defendants, 
 in which the eompany were joined as co-plain- 
 tiffs, attacking a transaction whereby all the 
 shareholders, including some of those whom the 
 plaintiffs assumed to represent, received shares 
 in the transaction sought to be impeach'id, was 
 allowed. The Citji Lujhl and /lialin;/ Co. of 
 London el al. v. Maejie. el al, 28 Chy. 3()3. 
 
 To a bill by a rur.il school section corporation 
 to compel the municipality to make good money 
 paid by the municipality to a person alleged not 
 to be the duly appointed oiKcer of the corpor- 
 ation, the treasurer of the numicip dity is not a 
 propiT l»irty. Srhool Trn^te'M o/' the Township 
 of Hamilton v. Neil, 28 Chy. 408. 
 
G23 
 
 PLEADING. 
 
 624 
 
 
 f" 
 
 
 ^V^1P^(1 proni'Oflinijs wern taken ntfaiiist Htirotic^a 
 witlioiit jciiiiiiii; tli^Mr principal ; -flcM, tliiit t.iii! 
 plaintill'-i I'diiM net prncceil .•ik-i'"^'' ''"^ s'lrctitis 
 alone if tlpy iei|iiiitil the jiiiiidiT of thu |)rinoipiil 
 ill onirr thill tln'V iiiii^lit iiaVL' tliuir lonieily over 
 a;,'iiinHt liini, ijjiltiiiii»' Hunk \. S/iriniji r ; Saiin' 
 J'loiiiii/.i V. Iliiniix. '."j t'iiy. '270. 
 
 \\*li('n' a liill w.iH lilcil l)y a crcilitor t" vacvato 
 ii (Iced of ('(iinpo-iitioii anil iliHcliarj^c, where tlui 
 (li^eharue li;ni lieeii olitained l>y a framliileiit 
 coiicealnieiit of assets: Held, that the assi^^iice 
 ill in^olveiiey wan not a iKM^essarv partv. Mrdie 
 V. C(H,ii,h,ll<l ,t/, '-> (). |{., Cliy! I). i:{(». 
 
 Seo McLmn v. Jiriwe, '29 Cliy. 507i P- ^'■^■i- 
 
 1. 
 
 in. AsHWKn. 
 
 S((]i/il, nil ii/dl Aii.^iirr. 
 
 Tho l.ill alleged that defendant had given tlu; 
 plaiiitill' ceitain imleM on aeeoiiiit of the |niri'liase 
 money of a vessel, and a mortgage on the vessel 
 ascOilater.il sieiiiity. 1 •efeiidaiit'.s answer tiled 
 in Noveiiilier, admitted this idlegition, wliiidi 
 was dciiii il liy his eo-defend.ant. In M.ireli he 
 applii'd for leave to lih.' a HUpjileineiital answer, 
 withdrawing his admission, and setting up tliat the 
 notes wi'ie given lur ])laintitr.s aeconimod.ation, 
 and ctcnying the alleg.itioii aa to the mortgago. 
 His ftHida\it st;ited that he had forgotten the 
 facts, whieh oeeiirred some years since, whin lie 
 •wore to his answer, and he only remerr.hered 
 them on having a conversation with his co-de- 
 fendant. The apidieatiun was refused. llrii/lil 
 V. ii'iiy, 8 1'. R. 3'2()— Taylor, /?-/(/w.— Blake. 
 
 A deerci! which liad heon m.ade against several 
 dofenilaiits, one of them, A., heing administrator 
 ad litem of a defendant wiio had died before 
 answer was vacated as to defendant 1?. and leave 
 given liiiii to tile a su])pieiiiental answer and 
 have a new hearing of the cause. .Suh.seijueiitly 
 C. who li.id since the decree and before tho ap- 
 peal been appointed administrator in place of A. 
 who died after decree, ap])lied for leave to tile 
 an answer setting up defences which his j)rede- 
 cessor had oiiiitt;ed. It w.as shewn that he had 
 heeii appointed pro forma to repri.'sent the estate ; 
 that no proeeeilings in a]ipeal had been served 
 upon him, and that no further relief was sought 
 against tiie estate. 'I'he referee granted the leave 
 asked :- -Held, alfirming tlie order of Proudfoot, 
 V. C, that the vacation of the decree .against IJ. 
 did not, under the circumstances, open up the 
 decree as .ag.-iiii.st the deceased defendant's estate, 
 and that the referee had, therefore, no power to 
 allow {'. to Hie a supiilement.al answer. Peter- 
 kin V. McFarliine et a!., C A. R. 2.")4. 
 
 IV. DEMURnER. 
 
 1. Fur traut of EnuHy. 
 
 Where certain shareholders in a company 
 joined with the comjiany as plaintiffs as a jire- 
 cautionary measure merely in case it should 
 tranejiire that their co-plaintiffs, the com]iany, 
 were not entitled or were unwilling to sue, the 
 court (lilake, V.C.,) refused to allow a demurrer 
 for want of equity, as the objection w.'S purely 
 of a formal nature. The. I'ili/ lAyht and Hentlmj 
 Co. of London et al. v. MacHe et al., 28 Chy. 
 363. 
 
 Tho idaintifTs A. and .T. filed a bill for the pur- 
 jmse of h iviiig a d(!od made to tho defendant by 
 .1. declared void, as h.iviiig been iibtiiiied by 
 fraud and inisrepresentatioii. The bill alleged 
 that .J. had subsequently made a deeil of the same 
 property to A., for the purpose of remedying, as 
 far as ho could, tho wrong he had done liy con- 
 veying to tho defendant, tin: bill alleging that 
 such deed to A. was made to him "as triiatoo for 
 the heirs of A. M.," who had die(| seized. 'J'lie 
 bill in no plaiH! alleged that A. was trustee, but 
 in the following jiaragraph it was stated that 
 "before the execution of such last mentioned 
 deed the heirs of the said A. M., who are the 
 rightful owners of the said land," *c. :--Hold, 
 that notwithstanding the absence of any express 
 allegation of A. being suidi trustee, siithcii nt was 
 stated to shew that he had acccjited the odice of 
 trustee, and as such was entitled to litigate the 
 subject matters of the bill, and a demurrer for 
 want of eipiitj' was overrided with costs. A de- 
 niiirrer ore tenus for misjoinder of plaintill's, it 
 appearing by the bill that J. had no interest in 
 till' question raised, was allowed, without costs, 
 llocliu i\ Jordan, '20 VA\y. 57I<, followed. Mr- 
 I. van V. Brace, 20 Chy. 507. 
 
 See '/'/((' Altiiriieii-Cleuiral \. Thv Inlernational 
 liriilije Co., 27 Chy. 37, p. 34'2. 
 
 2. Other Cmeg. 
 
 (hi the argument of a demurrer any document 
 referred to must be taken to be truly stated, and 
 cannot be looked at to contradict or alter the 
 I avi'rments in tho pleading, even though there is 
 I a reference to the instrument for greater eor- 
 I tainty as to its contents. Louijliead v. Htubbs, 
 I '27 Chy. 387. 
 
 The defendants set up by way of defence .and 
 I as a ground of demurrer to the pl.tintiHa' bill, 
 to restrain proceedings liy tho alleged arbitrators, 
 the pendency of another action in New York for 
 the same purpose ; but — Held, that this could 
 only form a ground for application to stay pro- 
 ceedings, or to i;omiiel the iilaiiitilFs to elect be- 
 tween the two tribunals; and, Seiiible, that under 
 ' the circumstances set out in the report of the 
 j ease, it could not be taken .advantage of in any 
 ' way. The Direct United Stafex Cahle Co. ( Lim- 
 ! ited) V. The Dominion Telegraph Co. of Canada, 
 8 A. R. 416 ; 28 Chy. 148. 
 
 A bill alleged that a mortgage was executed 
 by \V. to the defendant in consideration of ^,50; 
 that the defendant advanced only $1.50 thereon, 
 and W. being entitled to receive the balance 
 assigned such right and conveyed his eipiity of 
 redemption to the plaintitfs, that the defendant 
 refused to pay the balance, and claimed to hold 
 the mortgage as security for $450. The prayer 
 was for sjiecific performance or in the alternative 
 a declaration of the above facts and for general 
 relief. At the hearing the learned judge allowed 
 a demurrer ore tenus on the ground that an 
 agreement to lend money could not be specifi- 
 cally performed : — Held, reversing this juilgment 
 that upon the facts alleged in the bill, namely, 
 that the mortgage was being held for more than 
 had been advanced thereon, and therefore to that 
 extent formed a cloud on the title the plaintitf 
 would be entitled to a declaration to that effect 
 
624 
 
 C2r) 
 
 POST OFFICI 
 
 62r. 
 
 ill for tlio ])iir- 
 cli^funil'iiit l)v 
 
 irlit:ilii<!il hy 
 I! I)ill allci^eii 
 (ill of thcHtitno 
 rciriodyinj^r, as 
 
 ilipiio hy oon- 
 
 alliHinj,' that 
 ii« triiateo for 
 
 »v\/.>'.i\. The 
 H tnistuo, hilt 
 1 Ntiited that 
 >8t iiu'iitjoncr) 
 
 who are tho 
 
 &.;. :--H«l(l, 
 of any ctxprods 
 siilJii:ii lit wn« 
 il tht! (lUiue of 
 to litiyato tho 
 (Iciiiiirrer for 
 r.dntn. Ado- 
 
 lilaiiitillH, it 
 
 no interest in 
 
 rt'illiout costs. 
 
 Uowed. Mr- 
 
 Inlfrnutioiml 
 
 my document 
 ily stated, and 
 or alter the 
 hoiif;li there i.s 
 ')r greater cer- 
 •md V. Stabbs, 
 
 if defence and 
 [il.iintiti'a' hill, 
 ed arhitrators. 
 New York for 
 lat thia could 
 1 to stay pro- 
 (Fs to elect he- 
 )le, that under 
 report of the 
 bai^e of in any 
 tbk Co. (lAm- 
 ■o. of Canada, 
 
 was executed 
 ation of $450 ; 
 $150 thereon, 
 3 the balance 
 
 his e(piity of 
 the defendant 
 aimed to hold 
 The prayer 
 he alternative 
 lid for general 
 judge allowed 
 lund that an 
 not be specifi- 
 this judgment 
 
 bill, namely, 
 or iiKire than 
 jrefore to that 
 i the plaintiff 
 to that effect 
 
 and ii)iiir'iiiriit(^ rf'li(!f, and as tin' ilcmnrrcr nd- ' voyrin 
 niittc'd till' truth of tlic iillc^'itiuii it sliould Iwivc 
 been ovcrriileil. ('nh'rii v. /liiriiliniii, A. K. | 
 (i-'O. 
 
 See Sh-rniiht v. Ary/s, -JS ( 'liy. 4',tS, p.O'Jl : At- \ 
 Iniilir (111(1 I'dcilh' Tcli'li'itiih Co. v. JJuinhiUiii 
 T(l(:irai>h Cu., -21 Chy. M2, p. O'J-J. 
 
 V. A.MKNDMKNT. 
 1. /{(/ Add'oKJ Pnrl'KK. 
 
 (a) /;/ M(iMcr» Ofcr. 
 
 Certain liiai liiiiery was placed in a factory on 
 the pri'iniscs in (piestir)n, some Ijisfore and sonio 
 afti.-r the cxiMMition ot the Tn(>rti,'!ii,'e to the plain- 
 tills ill ISTl. The morti; i;,'or, the dufeiidaiit, 
 h:iil no interest in any of the nvichiniTy at tlie 
 date of the iiiortijagc. to tli(! iilaiiitilV. liaviiig pre- 
 viously sold out to one Abel, but afterwards he 
 becatno solely cntitl(!d to all of it, and he then 
 executed a eh ittid iiiort!,':ij;o of the same to the 
 Parry Sound I.iinibcr Coiiip my. On the rcfor- 
 cnco under the decree obtained by the idaiiitifrs 
 the mister made thi^ liimbiT coniiiiny jiarties 
 as subsi'i|ii(Mit eneumbraneiTS : — Hehl (assumiii!,' 
 the machini'i'V or soiiu? portions of it to li' trade 
 tixturi's remov vble as bet\»'c 'ii 1 iinllord and ten- 
 ant) tiiat the iiru'hiiiery (or su'^li jiortioii'i afore- 
 said) when aeipiired bv the miirt,!^;i.,Mr, would iro 
 to increase the pl.iintifT's security and that there- 
 fore the mister was right in makiii'.,' the liimbHr 
 company pirties as subsiiijunit encumbrancers. 
 Loiiilnii (iii'l (^(inn'liiin Lo'in <(r. Co. v. Pnlfiif(l, 
 8 P. R. I50.-Proudfoot. 
 
 In procee ling upon a rcteroncc under adecroo, 
 the m aster cannot under the (JuKiral Orders 2 U, 
 245, orihu' a per-ion to be made a party to the 
 suit against wiioui any relief is sought; and 
 where in (iroci'i'ding umler a decree for the ad- 
 ministration of a ti^statnr's estate, the master di- 
 rected on(! I)., who had biKiii in ])artnership with 
 the testator up to the time of his death, to be 
 made a ))arty, and rei|uiring him with the exe- 
 cutors to bring in under o ith an aocount of the 
 partnership dealings, against which D. a))poaled, 
 the court (Proiidfoot, V'. C) — Held the object of 
 makii.g I), a party was for the purpose either of 
 relief or discovery, and in either view the plain- 
 tift' couhl not obtain it in this mode of proceed- 
 ing, as f)., so far as disi;overy was cou(!crned, 
 coulil only bo regarded as a witness, ffopper v. 
 llarriKon, 23 tJhy. 22. 
 
 See ITiU v. ^fl'l•<•h'ln(.^ and }TanH''nc,'urer-^ Tns. 
 C(j., 28 Chy. 5G0, p. 373; Dufv. The. Ccmadiati 
 Mutual IiiH. Co., 6 A. R. 238, p. 373. 
 
 and making the neiM.ssiry aincndinentH 
 111 the liill ill accordance thercwitli. Dninhic v. 
 L(ini.ili, 27 Chy. IS7. 
 
 The proposed ameiidiiieiits of tlu^ bill were set 
 out sulistaiitially in the cudir for the iiijuiietion, 
 which was served : — lli!ld, tint, as the drfen- 
 daiit had thendiy notice of the prop H.'d aiiieiid- 
 meiita, the objection that the am 'Uilcd bill had 
 not been served wis not entitled to prevail. 
 Taylor v. //((//, 29 Chy. 101. 
 
 rOLICK. 
 
 Sec CoMMISSIDNKKS OF Poi.K'K. 
 
 POLICY. 
 
 I. Of Ivsuhwck — S'i'o iNHtrriAVCF,. 
 II. VAt.iiiiTv OF novri!\''rs winr i!K(!\nn 
 
 TO Prill. 10 Pol.lCV -.S'cc C()NTR,\OT. 
 
 POSSKSSIOX, 
 I. On- Tr\\>4ki:u of CiivTTia.s -S'w Rii.ns 
 
 OFSaI.B AM) ClUTTKI- MoUTO \(!K.S. 
 
 II. TiTi.R nv -<? i> LiMiTXTios OF Actions 
 
 .ASI) SlMTS. 
 
 III. U.VDRH CoNntvnr i-oii Piriti'ii\SE ok 
 
 TjVNI) -.S'''C SaI.K (IF liANh. 
 
 IV. TlTI.R AN'P P0SSES.St0N— .?('" RkPLBVIN — 
 
 Trkspv.s.s. 
 
 2. Other (7«/)M. 
 
 Although according to the riilinffin Adamsnn 
 V. Adainson, 25 Chy. 552 a plaintiff will not be 
 allowed to amend so as to setup a title acrpiired 
 after the tiling of the bill, yet where by error in 
 the conveyance the west instead of the east half 
 of the lot was conveyed, it would seem (per 
 Proudfoot, V. C.) that it would not be any in- 
 fringemjut of that rule to allow an amendment 
 aettmg up the fact that since the tiling of the 
 bill the error had been corrected by a new con- 
 
 40 
 
 POST OFFICE. 
 
 The condition of a I) and given by the dcfend- 
 I ants, as suri'ties for a itistm ist u", tt the post- 
 I master-g^■l^;rd, was, that the pisturisti^r "do 
 I not and shall not commit any tliofh, larceny, 
 I robbery or embezzlement of, or lose or destroy, or 
 commit any malfeasance, misfeasano ■, or neglect 
 I of duty, from which m iv aris) any theft, lar- 
 ' ceny, robbery, or embezzlement, loss or de.strnc- 
 ! tion of, any money, goods, chattels, valuables, 
 or effects, or of any letter or parcel containing 
 the same which may come into his custoily or 
 possession, as such postmaster," &c. The post- 
 m.aster opened sevcr.il letters which came into 
 his possession as such po.Htinaster, and having 
 taken therefrom certain chiKjU'^s, forged the 
 payees' names as endorsers thereof, ami got them 
 cashed by a bank upon guaranteeing the gon- 
 uincness of such eiKior.senii its, The drawers 
 refused to recognize these che pie-f, but issued 
 duplicates to the p lyces and p lid them, so that 
 the bank lost the money. In an action by the 
 postmaster. general on the bond, on behalf of the 
 bank, to recover from defendants, as such sure- 
 ties, the loss so incurred :— Held, referring to 
 sees. 37 and 78 of the Post office Act of 1875, that 
 defendants were not liable, for that the forgery 
 and the postmaster's guarantee, and not the 
 larceny, were the proximate causes of the loss , 
 and the contents of the letters did not beV<ng to 
 the bank. Remarks as to form of the condition. 
 Pontnanler-Oeneral v. McCull et at., 31 C.P. 364. 
 
C27 
 
 rilACTlOE. 
 
 C2« 
 
 I'OUNUAGE. 
 iSVe KiiKUiFK. 
 
 r 
 
 .t 
 
 
 I'OUND-KKKl'KK. 
 
 iMroi'NDiNO Animals— .SVc Distkksh. 
 
 roWKIl OF A'lTOHNKY. 
 
 iSee rillNClVAI. AMI A( EST. 
 
 rO\N'Ell 01' HAhK. 
 In Mi)UT(JA(iKH— .S'rc MoinaAaE. 
 
 PRACTICE. 
 
 I. In ConNTYt'OURTS— -SceCoUNTvCoiTIlTS. 
 
 II. In' Division Courts — See Division 
 (.'ouins. 
 
 III. In Partu'ui.ar Actions, Suits oh Otiikr 
 I'UOCKKUlNdS — iSVe TuE Sevkhal 
 Titles. 
 
 (Since the Jitdicalure Act, 18S1.) 
 
 I. Gknerallv, 029. 
 II. Writs. 
 
 1. Emlurmmmt, C29. 
 
 2. Ihuiwat, 029. 
 
 3. /Service. 
 
 (a) SubKli/iitioiml Serpiee, 629. 
 
 (1)) Si-irice Jhroctd, C30. 
 
 (c) Otfier Ca»i's, 630. 
 in. Consolidating Actions, 030. 
 IV. Judge and Master in Chambers. 
 
 1. JiirmUction, 630. 
 
 2. Appeal from, 632. 
 V. Referees. 
 
 1. Appeal from, 632. 
 
 VI. Proceedings in Master's Office, 632. 
 
 VII. Notice of Motion, 0.S2. 
 
 VIII. Service of Papers, 632. 
 
 IX. Transfehrinu Cause from one Divi- 
 sion OF THE High Court to another 
 Division, 033. 
 
 X. Term's Notice, 63.3. 
 
 XL Dismissing Action for wajjt of Pro- 
 secution, 633. 
 
 XII. Staying and Setting aside Proceed- 
 ings, 633. 
 
 XIIL Varying Minutes, 634. 
 
 (lieforelheJiidicaliin Act, /SSI.) 
 
 PRACTICE AT LAW. 
 1. Writ OF Summons. 
 
 1. Sirrire. 
 
 (ii) Oh Forehju ('(ir/iordliuiin, 634. 
 (li) .Minciiiiiliiiii Dililur, 634. 
 (c) Si r vice. Aliroitd, 6,34. 
 
 2. SjieeidI KiidiirximevI, 634. 
 
 JI. ClI'.IIK ok IIIE ClIOWN AND I'LEAS. 
 
 1. Jiirisilirliiiti, 635. 
 
 2. Afi)iealj'ri)in, 63"). 
 
 III. Okdkiis, (i.'J.'). 
 
 IV. Rules, 635. 
 
 V. Skkvice ok Pai'KHh, 035. 
 VI. Term's Notice, 6.'i5. 
 VII. Setting aside and Staving I'uocekd- 
 
 INdS. 
 
 1. />/(/// (K mociiiii, 636, 
 
 2. Slmjiiiij I'nici'tdiiKjn on Ktiuitahle 
 
 Orouiidx, 63(i. 
 
 3. Other Case.1, 6.36. 
 
 (Before the Judimture. Art, ISSI.) 
 
 PIJACTIOE IN EQUITY, 
 I. Bills. 
 
 1. JHsmisnitiij Jor ivaiit of ProHecution, 
 
 63(>. 
 
 2. Uinlertakimi to Speed, 637. 
 II. New Hearing, 0,37, 
 
 III. Decree. 
 
 1. Amendment 
 
 2. nennv.GliS. 
 
 3. Other CawK, O.i.l, 
 
 IV. Master. 
 
 1. Inferences to and tuhen Ordered, 639. 
 
 2. ('hanging Reference, 639. 
 
 3. Proceedinijn in Mu»ter'n Office, 039. 
 
 4. Keport. 
 
 (a) Con/irming, 640. 
 
 (b) Other ViMex, 640. 
 
 5. Appeal from, 640. 
 
 V. Judge or Referee in Chambeius. 
 
 1. Jiirindielion, 041. 
 
 2. Appeal from, 042. 
 VI. Service. 
 
 1. OfBilla. 
 
 (a) A bsconding Defendants, 642. ' 
 
 (b) Service Abroad, 642. 
 
 (c) By Publication, 642. 
 
 2. Acceptance of Service, 642. 
 
C2K 
 
 fi-J9 
 
 PRACTICE. 
 
 caa 
 
 /sm.) 
 
 V. 
 
 rolitniM, 034. 
 
 U. 
 H. 
 II I'lkas. 
 
 riMi I'kocekd- 
 uH EtiuUahle 
 
 , 1S8I.) 
 TY. 
 
 of Proxecutiun, 
 (J37. 
 
 Orihrrd, 639. 
 39. 
 * Office, 039. 
 
 lAMBEKH. 
 
 dants, 642. 
 
 ;42. 
 
 42. 
 
 G42. 
 
 VII. Si A VINCI I'UOC KK.DINOH, (J43. 
 VI 11. AllATKMKNTOF SUIT, 043. 
 
 (S'tiiee the JudicaturH AH, 1881. ) 
 
 I. Gknkkaixv. 
 
 Whore in matters of priicticu tliero was a coii- 
 llict lietwcen cdiniiion law aiitl t'ljiiity hh to 
 iiiatterH not jirovidofl for by the •ludicr.tiire Act, 
 tliu pnictico wliich is moat uonv-jnient in to ho 
 followed. See. 19, Hiil)-Hee. 10 reluteH to niattcTH 
 of Bulistanti ve law, not of niei't! praotiec, Friiiitlli/ 
 V. (Mrhr, 91'. it. 41. — Dalton, i»/((.s<</-. -Osier. 
 
 Altlioii^di the decree was pronounced before 
 the Judicature Act, and mif^lit have been reheard 
 under the former practice, yet the cause not 
 having been Het down to bo reheard before the 
 coining into force of the Act, it could not under 
 tho ])roviHiniia of the Act respeutiiig pending 
 busincHB, be reheard. Tniile v. I'luvnix Jim. 
 Co.. 29 (;hy. 420. 
 
 The policy of the O. J. Act is to deceutralizo 
 business, and huikI local matters to.locul masters. 
 AUken v. Wilaun, 9 1'. U. 75.— Boyd. 
 
 II. WlUTS. 
 
 1. Endovsenu-nt. 
 
 Tho writ was endorsed for tho price of land 
 which the plaintitt' had agreed to sell to the de- 
 fendant. A motion for judgment under lUile 80, 
 0. J. Act, was refused. Such a claim cannot bo 
 specially endorsed. Hood v. Martin, 9 P. K. 
 313.— Dalton, Ataster. 
 
 See Luean v. Rons, 9 P. R. 251 p. 392 ; Im- 
 ptrial Dank v. Britlon, 9 P. 11. 274, p. 392. 
 
 2. Renewal. 
 
 A writ of summons, dated the 17th April, 1879, 
 was after several renewals finally renewed on 
 the 6th April, 1881, and served on the 27th De- 
 cember, 1881 :— Held, that no declaration having 
 been delivered, the case was governed by the (). 
 J. Act (Rule 493,) and that by l{ule3l, the writ 
 ontiuued in force for one year from the date of 
 tlic last renewal, and service on the 27th Decem- 
 ber, 1881, was therefore good. Muckelcan v. 
 liedcet, 9 P. R. 289.— Dalton, Masttr. 
 
 3. Service. 
 (a) Substitutional Service. 
 
 Where a judgment debtor had absconded, and 
 his place of abode could not be ascertained, sub- 
 stitutional service opou him of a summons to set 
 aside fraudulent conveyances made by him, was 
 allowed. Dob»on v. Marshall, 9 P. R. 1. — Usler. 
 
 The plaintiff had some ^cars previously in an 
 action of ejectment against tnese defendants 
 served them personally, and they had defended 
 by the same solicitor. It was shewn that one 
 defendant, the father of the other two who re- 
 sided in the U. 8. A. corresponded with them. 
 An application under Rule 4, O. J. Act, for an 
 
 order permitting HiiliKtitutional sorviun on the 
 father for tho other two (IcfoiidantH, was rri'umMl, 
 it not iieiiig Hhewn that pn)in|it pcrnonal sorvicc 
 could not bo etl'cctod. RnlxrUmi v. Merit H itl, '.} 
 P. 11. 610. — Dalton, J/im/cc. - Boyd. 
 
 See Wmlherhmd v. Wmtlurhend, 9 P. I{. 90, 
 p. 578. 
 
 (b) .Service Abroad. 
 
 Where a defendant has been served out of tho 
 jurisdiction, and tho service is allowed, but the 
 defendant d(jes not iijipoar, no order to proceed 
 is iiecoHsary. Division (e), Hule 45 is not to be 
 oxtondcd to all tho cases uixlor the rule. .Martin 
 v. Liilini,/, 9 P. U. 300.- Dalton, MiiMe.r.— 
 Proudfoot. 
 
 Service of ]iroccHS on infant out of jurisdiction. 
 See Rew v. Antlwnij, 9 P. K. 545, p. 3.'W. 
 
 (iuioro, whether the personal .service referred 
 to in H.S.O. c. 50, s. 145 refers to porsouiil service 
 ill tiuebec, Vourt v. Scott, 32 0. P. 148. 
 
 (c). Other Vases. 
 
 lilakealee, Brown & O. carried on business in 
 partnership under the name of lilakcsloe & Co., 
 BlakoNloe ab.sconilod on the 19th epteinbor, and 
 the busiiicsa continued. (). aasigned his interest 
 to Brown, and after such assignment, but before 
 it bad been made public, the plaintiti' served his 
 writ of suminoiis against the tirin on () : — Held, 
 that the service was good. Bank of llnmillon v. 
 UlukcHlee et al., 9 P. R. 130.— L'alton, MuMer. 
 
 Service re(]uisite to make judgment recovered 
 in Quebec conclusive under U. S. O. c. 50, s. 
 145. See Court v. Scolt, 32 C. P. 148. 
 
 III. CONSOLIUATINO AcTION.S. 
 
 Tho defendant applied to have this action con- 
 solidated with an action brought by the defendant 
 in the Chancery Division against these ])laintiffs, 
 on tho ground that the plaintiffs' counter claim 
 ill the Chancery Division action disclosed the 
 same cause of action as shewn in the statement 
 of claim in this action. '1 he action in the Chan- 
 cery Division was commenced on the 17th May, 
 1882, and this action on the 10th June, 1882 : — 
 Held, that though the case presented was not 
 technically within the terms of Rule 395, O. J. 
 Act, there is an inherent right in tho court to 
 prevent an undue use of ita proceaa, and thi.i 
 action was stayed until that in the Chancery 
 Division was determined, no special reason to the 
 contrary being shewn by the plaintitTs. Taylor 
 et uL v. Bradford, 9 P. R. 350. — Cameron. 
 
 An application to consolidate two motions for 
 administration and partition peiuling before a 
 local master should be made to him and not to a 
 judge in chambera. Lambier v. Latnbier, 9 P.R. 
 422.— Boyd. 
 
 IV. Judge and Ma.stee in Cuambeks, 
 
 1. Jurisdiction. 
 
 A judge sitting in chambers has no jurisdiction) 
 to order judgment to be signed under Rule 324 
 
631 
 
 PRACTICE. 
 
 632 
 
 C 
 
 r 
 
 C 
 
 
 
 (a), but a motion for judgment tbercunder must 
 ix- iiijvile to the court. MovrUon v. Toytur, 4(i 
 Q. 15. 4!C.». 
 
 Tlie iniister li.-'s authority to take the account 
 witli rests, under the ordinary reference, as 
 against an executor, hut where he dechnes to 
 charge the executor in tliis way, if it ia intended 
 to aiijieal, he shouhl he reiiuired to reiiort the 
 facts to eiiahh' the court to determine on tlic 
 propriety of liis decision. Qua're, whether it is 
 not the more proper course to hring the matter 
 up on fuither directions with all the materials 
 for consideration spread out on the report, rather 
 than to appeal in such a case. Sievcwr'rjhl et al. 
 V. Leyx, 1 O. It., C'hy. D. 375. 
 
 Jurisdiction of master in chambers over on'v 
 part of suliject matter. .See Jia Devitt, 9 P. it. 
 110.-- l.-oudfoot. 
 
 On motion for an orfler for the committal of a 
 defendant fi.r non production of documents under 
 Hule 4'JO, ( ). J . Act, which vests in the master in 
 chambers the powers of the referee in eh:ind)ers, 
 the mastrr — Held that matters relating to the 
 liberty of the suliject having been excepted from 
 the jurisdiction of the clerk of the crown and 
 pleas nndiT the former practice, arc still beyond 
 his jurisdiction by Kule 4'JO, (•. J. Act. Kic/e v. 
 K'(nf/, 9 IM!. 2J6.— Dalton, MMin: 
 
 The m;ister in chand>ers has no jurisdiction to 
 entertain an ajiplication for costs umler liule 2G4. 
 fJojik-lnn V. .Swilli, 9 1'. IJ. 285.— Dalton, Maxtcr. 
 
 The master's discretion exercised under R. S. 
 O. c. 3!», s. 29 and lii-le 420, O. J. Act. is open 
 to review by an appeal to a judge in chambers 
 under Jiule42", C J. Act. See C/irixtk' v. Co)i- 
 tea;/ H al, 9 I'. K. 4)1:9 p. 390. 
 
 See /iV Ciii'f)/, Wriiiht v. Curry — Cum/ \. ( >./•- 
 ry, 8 r. I!. 340, p. 5S9 ; Grnml Trunk I'i. ,i . I '». 
 V. (Mario tiiiil (JwIkc li. W. Co., 9 P. K. 420; 
 infra ; J{iian v. /■•/.•</( rt al., 9 P. K. 458, p. 227; 
 f/iurluw V. Beil; 9'P. K. 268, p. 399. 
 
 2. Appeal from. 
 
 Held that appeals from the Master in Cham- 
 bers are governed hy ISule 427 and not by Pule 
 414, which .'ipplies to appeals to a divisional court. 
 Lowfion V. T/ir Canada Farmers Inn. Co., 9 P.P. 
 185.— Dalton, Manhr.— Boyd. 
 
 An appeal was not m.ade within the time re- 
 quired by Rule 4()1, O. .1. Act, as it was supposed 
 that Christmas vacation did not count. On the 
 facts stated in the judgment leave was given to 
 appeul on payment 'tf costs. SievewriglU v. Lry.^, 
 *» P. R. 200.~Daiu >, Master. 
 
 A stay of proceedings will not be granted 
 pending an ajipeal unless security is given for 
 the costs nf appca'., as well as thoso in the court 
 b«dow. Apjilication for a stay should not be 
 made ex parte. Where a stay was granted on 
 an ex parte a))plieation, it was held that an ap- 
 peal might be had direct to a judge in chambers, 
 without applying to the Master to rescind his 
 order. Grand Trunk R. W. Co. v. Ontario and 
 Quebec li. W. Co., 9 P. R. 420. — Proudfoot, 
 
 Where an appeal had been made at the first sit- 
 ling of the court :— Held, not too kte under Rule 
 
 414 though more than eight d^ys had elapsed 
 and the time hacl nv.t been extended. Hewxoa 
 V. Mdcdonald, 32 C. P. 407. 
 
 V. RefereivS. 
 
 1. Apjieal from. 
 
 The eight days for appealing from an order of 
 the referee under Rule 427 (c), of the (). J. Act, 
 count from the making of the decision, not from 
 the entry of the order, as formerly. Where the 
 idaintilTs solicitors, owing to a misapprehension 
 on this point, allowed the eight days to elapse, 
 Proudfoot, J., granted further time. Dayer v. 
 JiubertnoH, 9 P. R. 78. 
 
 Where an apjdication for a commission to ex- 
 amine a witness in New York, was made before 
 an official referee, and referred by him to a judge, 
 it was— Held that matters coming within the 
 jurisdiction of any otticer of the Court should be 
 disposed of by him in the usual way, and the 
 parties might then appeal from such decision. 
 JJu!ilte.s V. Ho's, 9. P. R. 80.— Boy<l. 
 
 An order exten»'ing the time for appealing 
 from the report of .an official referee under see. 
 47, 0. J. Act, shonhl not be made ex parte. 
 Hamilton v. Tweed, 9 P. R. 448.— Proudfoot. 
 
 VI. Pkoceedin'gs im Master's Office. 
 
 The circumstances under which interest on a 
 claim ought to be allowed or refused in the mas- 
 ter's otfice, considered and acted on. Jie Roiik, 
 29 Chv. 385. 
 
 Where an amendment in a m.ittcr of account, 
 as stated in the pleadings, would be allowed be- 
 fore decree, a similar amendment shouhl also be 
 allowed, if asked for, in respect of the .iccounts 
 tiled, after decree, in the master's office. Court 
 V. JloUuidetal., 4 O. R., Chy. I). 088. 
 
 Vn. Notice of Motion. 
 
 Irregularities relied on, need not be stated in 
 a notice of motion if they are set out in atfiil-jvits, 
 tiled on the motion, and referreil to in the notice. 
 Wain V. Jilain et al., 9 P. R. 209.— Dalton, Mas- 
 ter. 
 
 VIII. Service of Papers. 
 
 Service of bill in partition suit on infant. See 
 Weatherhiidx. Weatherhead, 9 P. R. 9G. 
 
 PlaintifT's and defendant's attorneys had an 
 arrangement between themselves by which 
 papers in the suit should be sent by mail. The 
 notice of trial was posted the day before the last 
 for giving notice, but reached defendant's attor- 
 ney one day too late. It was shewn that the 
 practice of both attorneys had been to admit 
 service as of the day of receipt: — Held, that the 
 ncitice of trial must be set aside. Robson v. Ar- 
 buthnot, 3 P. R. 313, distinguiahed. McDonough 
 V. Aligon, 9 P. R. 4. — Dalton, Master. 
 
 A person of the same name as the defendant 
 served by mistake with th-^ writ in the action 
 was— Held entitled to his c^^.,tsof opposing a mo- 
 tion for judgment under Rule 324 O. J. Act 
 Lucas V. Fraser, 9 P. R. 319.— Dalton, MasUr. 
 
 
had 
 iilud. 
 
 632 
 
 elap sed 
 Jltwuon 
 
 633 
 
 PEACTICE. 
 
 634 
 
 y'' 
 
 )m an order of 
 tlie (). .i. Act, 
 ision, not from 
 Wliere thu 
 isappruliuusion 
 days to elapse, 
 mo. Diiijer v. 
 
 mission to ex- 
 as made l)ufore 
 liim to a judge, 
 
 ng witiiin tlie 
 
 oiirt should bu 
 way, and the 
 
 such decision. 
 .■<l- 
 
 for appealing 
 iree under sec. 
 ado ex parte. 
 -Proudfoot. 
 
 I's Office. 
 
 h interest on a 
 sed in the mas- 
 on. J{f RosK, 
 
 iter of account, 
 be allowed be- 
 : should also be 
 of the accounts 
 3 (iflice. Court 
 ). 088. 
 
 lox. 
 
 ot he stated in 
 ut in aHid.-'vits, 
 o in tiic notice. 
 — Dalton, JfcM- 
 
 ERH. 
 
 on infant. See 
 R. 9«. 
 
 orneyu had an 
 '68 by which 
 l>y mail. The 
 before the last 
 cndant's attor- 
 hewu that the 
 lieon to admit 
 Held, that the 
 ilobson V. At- 
 . McDonough 
 Mer. 
 
 the defendant 
 in the action 
 apposing a mo- 
 vn O. J. Act 
 •alton, Matter. 
 
 IX. Tban.'^fekrino Cathe ft^om one Division of 
 THE Hicii Court to anotiikr Division. 
 
 Where a plaintiff brings an action in the Chan- 
 cery Division which is proper to be bnmgiit there, 
 he will not be allowed to transfer either on the 
 ground that he wis-hes it tried by a jury, or tli:-.t 
 a transfer would expedite the trial. Wviuilijia 
 V. Gutlinc, 9 r. li. U07.— Boyd. 
 
 The action was transferred from the Chancery 
 Division to the Comnion rii;as hivision by an 
 order of the judges, but the plaintiti not having 
 notice of the transfer signed judgment in the 
 Chancery Division. An order vas made retrans- 
 ferring the case to the I'hancery Division, and 
 allowing the judgment entered to stand and l)e 
 in force from its entry, without costs. J'liitt >•- 
 noil V. Muri'liii, y 1*. U. 300. — Dalton, Mmttr. 
 
 X. Tekji's Notice. 
 
 Where neither jiarty has taken any proceeding 
 in a suit (or a year a term's notice to proceed, 
 which was re(juiicd under tlie Coniimin Law 
 practice, is not necensary under the (>. .1. Act. 
 liKinr v. liiMithiant, D P. 11. Ii3t).— Dalton, 
 Munttr. — Armour. 
 
 quentlj' served a jury notice with the notice of 
 ' trial. The defendant did not appear at the trial, 
 I and a verdict was rendered for t'le phiintilF, who 
 
 afterwards obtained (on notice), an onlcr in 
 , Chambers for costs :— Held, on appeal, atlirniing 
 
 this order, that tiie verdict obt lined on the 
 
 trial by a jury was not a nullity, lint only irregu- 
 1 lar, and not being moved against promptly should 
 1 stand. LfisoH v, Lt'iimn, \) 1'. It. 10:{. — lioyd. 
 
 I As to effect of obtaining order to postpone 
 trial. See Allai v. Mathers, 9 1'. K. 477, 
 
 See Tuijlor el at. v. Bnulj'onl, 9 P. R. X^Q. pk 
 030; Grun.l 1 rtink 1{. )!'. Co. v. Oiilnrio ami Que- 
 h<i- 11. W. Co. 9 P. U. 4'20, p. 031 ; Ihw^ou v. M,ic- 
 dovald, 32 C. P. 40". 
 
 Xlll. VaRVINU MlMTKS. 
 
 On a motion to vary minutes, notliing can be 
 j done at variance m itli the order as granted, but 
 additions or variations may be made so as to 
 carry out the intention of tlu; court in pronounc- 
 ing it. JJtiidrie v. IScadi/, 29 Chy. 423. 
 
 XI. Dis.Mis.'iiN(i Action for Want of 
 
 PliO.SDcrTION. 
 
 Issue was joinei! on the Hith Deccndjcr, 1S80, 
 and on the 22nd the cause was tried, and a non- 
 suit entered, which by consent was set aside, 
 and the case again entered for trial at tlie sittings 
 held in March, 1681, but remained over until the 
 following sillings, wiien it was struck out liy 
 eou.sent. Alter the iudicature Act came into 
 force, a moti.m to dismiss for want ol prosecution 
 was made, and the plaintitls' solicitors, thougli 
 alleging that they did not intend to proceed, 
 would not consent to tht; dismissal of tile action. 
 The master in chambers dismissed the action 
 with costs, and this order was reversed by 
 Cameron, J.: — Held, on appeal to the Common 
 Pleas I livisioii, reveiaing the order of Cameron, .J ., 
 that the masters oriler was right ; that the words 
 in liule 2o.") "for the next sittings of tlie court," 
 werj not conlincd to the lirst silling alter issue 
 joined; and that the fact that the plaintiti had 
 already taken the cause down to trial did not 
 prevent the defendant from moving to dismiss 
 for not going to trial again. C/iiijuituu et al. v. 
 SmUli, 32 C. 1'. 555. 
 
 An undertaking to speed the action ia not in 
 all eases a sulhcieiit answer to a motion to dis- 
 miss under Mule 255, O. .1. Act. lly (j. (t. Chy. 
 270 a judge had discretion under all tiie circuin- 
 atances ot the cause to dismiss or not, ami the 
 practice not being interfered w ith remains as be- 
 fore the O, J. Act, liy ss. 12 and 52 of the Act. 
 Under tlie circumstances ol this ease an onlcr to 
 dismiss was rescinded. Uucki v. Jlii'ini/, 9 P. 
 R. 495.- Proudfoot. 
 
 XII. SfAYlNli AND yErriNU ASIDK PROCEEDINIJ.S. 
 
 An order directed the trial of an issue in an 
 interjileader matter. The plaintiti' scrveil the 
 issue but did not serve with it a juiy notice 
 as required by R. S. U., c, 54, s. 4. He subse- 
 
 (Before the Judicature Act, ISSl.) 
 
 PRACTICE AT LAW. 
 
 I. Writ of Su.mmons. 
 
 1. Service. 
 
 I (a) On Foreijn Corporatiutix. 
 
 ! The defendants were a foreign insurance com- 
 pany doing business in Ontario, and having a 
 
 . head ollice for this province at Toronto. The 
 writ of summons w;s served on the local agent 
 of the defendants' company at Ottawa; — Held, 
 that the .service was good. WiUnii v. ^h'lna Life 
 
 I /ii.t. Co., 8 P. R. 131. — Dalton, il C. 
 
 (b) Absconding Debtor, 
 
 The writ of summons in ejectment was served 
 upon the defendant's wife alter he had left the 
 country. An order to sign jiidgnient against the 
 husband was granted in default ol ap[U'araiice. 
 'J'riist and Loan Co. v. Jonen, 8 P. R. 05. — Dal- 
 ton, t^. C. 
 
 (c) Service Abroad. 
 
 A co[iy of a writ of summons, inste.id of a no- 
 tice thereof, had been sc. »ed upon a defendant, 
 not a British subject, outsiilc of < )iitario :■ -Held, 
 that this was an irregularity whicii could not bo 
 amended, and that the copy and service of tliu 
 writ should be set asiile. lUndcrnun v. Hall, 3 
 P. R. 353. — Cameron. 
 
 2. Special Endorse nieni. 
 
 The particulars of claim upon a writ of sum- 
 mons s[iecially endorsed to w hich tlie defendant 
 aiipears do not bind the plaintiil' as particulars 
 under a declaration on the common counts, and 
 in such a ease, he must comply with a tlemand 
 for partietdars made by the defendant. //«;/(//;//« 
 v. Cudph Barrel Co., 8 I'.R. 170. -Ualton, t^.C. 
 
G35 
 
 PRACTICE. 
 
 636 
 
 C, 
 
 I**"' 
 
 
 II. Clkrk of the Crown and Pleas. 
 
 1. JurUdktkm. 
 
 Held, that it is witliin the power of the clerk 
 of the crown in cli!ini))era to inike an order for 
 the payment of a weekly allowance to a debtor, 
 under the In.ligont Del)tors Act, (H. S. O. c. CD,) 
 wiiere it can legally be made. Whfatbj v. Sharp, 
 S P. R. 189.— Cameron. 
 
 2. Appeal from, 
 
 Semble, that a judge has power to extend the 
 time for appealing against the order of the clerk I 
 of the crown in chambers on an apiilicntion for ' 
 an allowance under the Indigent Debtors Act, 
 (I!. 8. O., c. (!!),) made after four days from the 
 making of the order. fV/itctth/ v. Sharp, 8 P. U. 
 189.— Cameron. 
 
 Held, that there is no appeal to the full court 
 in term from an order of the clerk of the crown 
 and pleas, made on an application to change the 
 venue in county court eases under K. S. O. c. 
 50, s. \!<ii ; bnt the only appeal in such cases is 
 to a judge in chambers, "nder sec. .SI of the Act: 
 — Held, however, that if an appeal did lie to the 
 full court, it might be made direct thereto, with- 
 out first going liefore a judge in chambers. Muhon 
 • tal.v. A'klwll.1, 31 C. P. I'i. 
 
 III. Orders. 
 
 Hold, whore an onlcr directing a reference to 
 the master has been ma<lc in chambers to deter- 
 mine the amount clue from an attorney to his 
 client, and the reference completed under it, an 
 application for relief tliorcfrom nnist be made to 
 the court. In re Attornnj. 8 P. K. 102.— Osier. 
 — Pull Court of Common Pleas. 
 
 IV. PvlI.ES. 
 
 Leave was granted , notwithstanding the lapse 
 of two terms, to rehear a rule made absohite 
 setting aside a by-law, on no cause l)eing shewn. 
 Rf f'hntiihi'rliihi ami the ('(ir/v>riilion of the 
 United (^i)initii'M of Stormont, Dnmlnx, and Gfen- 
 ijarry, 45 Q. B. 20. 
 
 See McCarthy v. Arlmekle, .31 C. P. 48. 
 p. C17. 
 
 V. Service of Pai»ek.» 
 
 Held, that service on the defendant's attorney 
 at his house at 9. .SO p.m. on Saturday of an order 
 and appointment to examine the defendant .it 2 
 p.m. on the following Tuesday, was irregular, 
 the notice not being sufficient :— Held, also, that 
 Eiile of court l.V), applies to the service of orders 
 and appointments to examine, and that this ser- 
 vice must be treated .as if made on the following 
 Monday. Senn v. Hewitt, 8 P. U. 70.— Q. B. 
 
 Service by mailing. See McDououah v. AUnon, 
 fl P. 11. 4, p. 632. 
 
 VI. Term's Notice. 
 
 Where no proceeding has been taken in the 
 cause for a year Bubsequeut to issue being joined, 
 
 the plaintiff must give a term's notice of his in- 
 tention to serve notice of trial. McCleart/ v. 
 Morrow, 8 P. R. 12.— Dalton, Q. C. 
 
 Where a summons was enlarged sine die by 
 the consent of counsel and notiiing further was 
 done in the suit for more than a year:— Held, 
 that a term's notice of the plaintiff 's intention 
 to proceed was necess:iry, before he could make 
 any motion in the cause. Bank of Montreal v. 
 Foiilds et al., 8 P. K. 182.— Dalton, Q. C. 
 
 Issuing a sidebar rule to discontinue tlie action 
 is not a proceeding within the meaning of the 
 rule which requires a term's notice ot plaintiff's 
 intention to proceed, where no proeee<ling has 
 Ijceu taken iu the cause for a year. S. C, Ik 
 23(J.— Osier. 
 
 VII. Setting Aside or Staying Proceedings 
 
 1. Delay in Moving. 
 
 Defendant precluded both by delay and accept- 
 ance of service of the writ from moving to set 
 aside procee<lings. See Reqina v. Stewart, 8 P. 
 P. 297, p. 2.— Oaler. 
 
 2. Stayinij Proceedimjn on E<pnlahle Grounds. 
 See Bates et al. v. Mael-ey, I O. R. 34. 
 
 3. Other Cases. 
 
 X summons to dismiss an action for breach of 
 an order to examine, generally implies a stay of 
 proceedings ; but where the judge who granted 
 the Hummons struck out the part relating to a 
 stay, and the summons was afterwanls enlarged 
 without any mention of a stay, a notice of trial 
 served while the summons was pending, was 
 held to be regular. Merchants Bank v. Pierson, 
 8 P. H. 129. — Dalton, Q. (5. 
 
 After issue joine<l one of two plaintiff's gave to 
 the defen<lant a release uniler seal of all actions 
 and demands. The defendant theieupon moved 
 to stay all proceedings in the suit : — Held, that 
 the defendant shouhl plead the release, and that 
 he was not entitled to a stay of proceedings, and 
 the remaining plaintiff was allowed to strike out 
 the name of the other ])laintiff. McAl/)inettal. 
 v. Carliny, 8 P. R. 171.— Osier. 
 
 (Be/ore the Judicature Act, ISSl.) 
 PRACTICE IN EQUITY, 
 
 I. BlLUS. 
 
 1. Dismissinij Jor want of Prosecution. 
 
 In a suit to set aside a conveyance of the 
 ccjuity of redemption in certain lands as frauilu- 
 lent as against creditors, one sitting of the court 
 having been lost, a defendant, the grantee of the 
 eijuity of redemption, moved to dismiss the bill 
 for want of prosecution. More than two weeks 
 before the sittings commenced, the plaintiff's 
 solicitors were notified to file a re))lication and 
 proceed to a hearing, but did not do so. The 
 excuses offered by the plaintiff were, that the 
 
636 
 
 637 
 
 PRACTICE. 
 
 638 
 
 tice of his in- 
 
 McClearij v. 
 
 ■1 
 
 1(1 sine tlic by 
 g further was 
 year:— Held, 
 ilf's intention 
 le could make 
 / Montreal v. 
 1, Q. (J. 
 
 inuu tlic action 
 leaning of the 
 e ot pLiintifF's 
 rocuuding has 
 S. v., Ih. 
 
 Proceedinos 
 
 ay and acccpt- 
 nioving to set 
 Stewart, 8 P. 
 
 iblc Grouiuh. 
 O. R. 34. 
 
 u for breach of 
 iplies a stay of 
 k3 wlio granted 
 ; relating to a 
 vards enlarged 
 I notice of trial 
 pending, was 
 auk V. Picrmn, 
 
 aintifTs gave to 
 1 of all actions 
 cieuj)iin moved 
 t :~ Held, that 
 lease, and that 
 roceedings, and 
 L'd to strike ont 
 McAliHiic dah 
 
 , ISSl.) 
 TY. 
 
 •oiteeution, 
 
 jyance of the 
 luls us fraudu- 
 ng of the court 
 ! grantee of the 
 lisniiss the bill 
 han two weeks 
 the plaintiff's 
 ■eplication and 
 t do 80. The 
 were, that the 
 
 defendant was a material witness, and was ab- 
 sent prior to the heiring, and tint the property 
 had been sold under a power of sale contiined in 
 one of the inortgigos, and little or no surplus re- ' 
 mained after paying the mm-tgages. It appeareil ' 
 that no effort iinl lieen mule to find the def-n- I 
 dant in "••' • to sulipoMia him as a witness at the ' 
 hearing, ■' chit tlie silo of the land diil not ' 
 take pir . ntil a month after the sittin;^s at ' 
 which t'l; vuse mighc liave been hoard : — Held, ' 
 that the dol ly wis not excused, and the bill 
 should be dismissed :— Held also, that the fail- 
 ure of the defendant to coniply with an order to 
 produce did not, under the circumstances of the ; 
 case, de|)rive him of the right to move to dis- 
 miss. EII!oft V. (lardiwr, 8 P.Il. 409.— Stephens, 
 Referee. — Proudfoot. 
 
 Semble, that a pi ainti IT cannot, in answer to ^ 
 motion to dismiss, ask to have the bill dismisse^l 
 without costs, but must make a substantive mo- 
 tion for that purjiose. Ih. 
 
 2. Umlertakhm to Speed, 
 
 The plaintitT underto(d<, upon a motion to dis- 
 miss his liill, to bring the c.uisedown at the then 
 next sittings at (iuel[)h. From some correspon- 
 dence it appi-arcd that if tlM pi lintid' h id set the 
 cause down for tin; then next (fuelph sittings, a 
 post|)onoinent would hive been asked for and 
 gr.mted, on the ground of the attemlince at the 
 House of Commons of a member who was a de- 
 fendant. The plaintiff oU'ered t" firing the cause 
 down to the then next sitting-, iit I'oronto, to 
 wliich a conditional consent wis given ; but the 
 cause was not set down. The referee dismissed 
 the bill : — Held, on appeal, reversing the referee's 
 decision, that under the circumstances, more 
 fully set out in tlie ease, tl. '. i)l liiititf was re- 
 lieved from his undortiking '•■■; bring the cause 
 down to (tuolph, and that he <vas under no obli- 
 gation to bring the cause down to Toronto ; and 
 as no intentionil delay was sliewn on the part of 
 the plaintiff, the bill was restored. I\/rie v. 
 Gulph Lumber Co., !) \\ R. 52. —Ferguson. 
 
 and further, th.at the plaintiff was entitled to 
 certain credits and referred it to the master to 
 take the accounts. In proceeding with the ac- 
 counts the defendant was hampered by tliis de- 
 claration in the decree, .as the mister felt bound 
 by it, whereupon the defendant moved upon 
 petition to amend the decree so as to make it 
 conform to the judgment : Ferguson .1., before 
 whom the motion wis heard, bjiiig of opinion 
 th it the judgm uit was <lireeted solely to the 
 fact tliat the bond w.is assigned as a security 
 only, and thit the view taken as to the credits 
 was a ground for so holding, and was not a sub- 
 stantive part of the judgment, anil therefore that 
 the declaration as to the credits was unauthor- 
 ized, ordered the same to be struck out of the 
 decree upon piyment of costs of the application 
 and of all acMitional costs incurred or to be incur- 
 red in the master's office, caused by the decree 
 not having been properly drawn in the first in- 
 stance. LivinijMoii v. Wooil, 29 Chy. 157. 
 
 II. New Hearing. 
 
 A defendant knew precisely tluMpiestion tobo 
 tried at tiie hearing, but took no steps toadduee 
 any evidence on his behalf, and a witness, whom 
 he would have called, was eilled by the plain- 
 titr, anil gave evidence which tlio defendant 
 swore was different from what he had anticipated 
 he would give : — Held that this w;vs not such a 
 case of surprise, .as entitled the defendant to 
 have the cause reopened, in order that there 
 might be a new hearing , and a motion made for 
 that purp >se was refused with costs, although 
 the defendant swore that the evidence given by 
 the witness had taken him by surprise, and that 
 the same was incorrect, and would be contra- 
 dieted by the wife and son of the defendant. 
 Sherr'M v. lieattie, 27 Chy. 4J)2. 
 
 III. Decree. 
 
 1. Aiueiidiiient of. 
 
 By the decree an assignment of a bond was 
 declared to have been by way of security only ; 
 
 2. Her lew. 
 
 In applications too])en up proceedings by way 
 of review on the ground of newly diacovercid 
 evidence, it is necessary for the l)arty ap[)lyiiig to 
 I estal>lish, (I) that the evidence is such that if it 
 I had been brought forward at the proper timu it 
 might probably have (^hanged the result ; (2) 
 . tiiatat the tini,' he mi.,'ht have so used it neitlier 
 ; he nor his agents had knowledge of it : (.S) tiiat 
 ] itcouM not with reasonable diligence have bjen 
 discovered in tim'3 to hive Ixien so usoii ; and (4| 
 the applicant must have used reasonable diligence 
 after the discr ery of the new evidence. Wliere, 
 therefore, a railway compr.ny in the construction 
 of their roacl took possession of and built their 
 road a-ri>S3 a plot of land of the [diintiff, who 
 instituted proeeedings to compel piyment there- 
 for, auil under the decree a sum of .151,801) was 
 found to be the value of such plot, which sum, 
 together with interest and costs, was p.iid by the 
 ■ com|)any in onler to prevent the land bjing par- 
 ch iscd by a rival com|)any ; and three years 
 afterwards th ;y applied on petition to have a 
 portion of such purchase money refunded, on the 
 ground that another railway company, whoso 
 rights had been assigned to them, hid previously 
 paid a prior owner of tlie land for a portion 
 thereof: Tli! court ( Ferguson, J., | refuseil the 
 relief .asked with costs, on the ground, amongst 
 others, that the com;>any. had they exercised 
 due diligence in tlie matter, might have become 
 aware of such prior purchase and payment. 
 Diim'ile V. '/'/«' Cohouni ami PeterhoroiKjh Rij, 
 Co., 29 Chy. 121. 
 
 3. Other Vaxes. 
 
 The court will not assist in carrying on or 
 perpetuating error, by enforcing an erroneous 
 decree. Miteliell v. Strath;/, 28 Chy. 80. 
 
 A decree I. id b.sen made on consent, referring 
 to the mastjr the ([uestion whether or not tho 
 tlefendant had p,'rforme<l certain work for tho 
 plaintiff at a specified rate, who ropi)rted that 
 lie had not. On appeal, the court (Blake, V.O.) 
 considering that this was a question that should 
 have been disposed of by the court, set aside tho 
 report and directed a trial to be had ujxin that 
 j issue, reserving the costs of the proceedings bo- 
 
639 
 
 rRACTlCE. 
 
 640 
 
 r 
 
 r- 
 
 p 
 
 ■2i 
 1^ 
 
 iis iij:iiiii.>-t I'l. (Iiil iKit, tiiitkr the «iKi.n;staiici.'8, 
 ojcii lll'thi (licHiiis ilJ;ilill^t tin, ikcitii'nl iktcii- 
 (liiiit"»ci-tiilf, iUiiltl.iit till' leliix't 1i;h1, tliiiifci't', 
 no jK.Mii to iiUt « ( . to lili' a (•tijii'ltiiii'iita] aii- 
 BWLT. J'lUrk'iii V. McI'di/uKi it III., C A.I;. -54. 
 
 IV. M.V^TER. 
 
 1. Hi /i I inn: lu (iiiil ii/iiii Onhrul. 
 
 Wb(re a iiiiititiou is i1irxi:tly lais-ud by the 
 plea(liiij.'s, iiiid i.s ilintimtly priMiittil to tlie cnxut 
 for its il<( {"iii II. ; ml t vidt ii< f liaw luiii givm ui.on 
 it ill oidt'i to oltain the juil^iiiiiit of tlif court, 
 it M ill i.< t I I H 11 u il to till iiia..-t( 1 l< 1 liis diii- 
 sioii. 'Jill lull I iiiiiiiiiiiil Ufiiliji Cii. V. J hi Ciiiiiula 
 ^'uiilliiin Ji. II. Co., mill 'Jill' CiiiukIii Smilliirn \ 
 H. W. Co. y. I III ti.luiiHtiijt.iil Jlrii/iji Co., 7 A.H. 
 2i;() ; SCI' S. C. S A I'll. Cas. 7'-3. 
 
 See WilliuiiinoH V. Ewitij, 27 t'liy. ")!)(i, p. 127. 
 
 2. Chiiiiijiiiij J'tjiriiif. 
 
 Wlii'io tlu' 1 iKsiiiiss of till' laitiier.'-liiiiiu ipics- 
 tioli in tlii.'s mit liail lici'n canicil on in the county i 
 of Sinicoc, and tlir jiaiticH resided tlitii', and it 
 was found till' nia.'-tt r in ordinary could not [iro- 
 cet'd vitli till' rchrcncc directed for two nii'iitlis 
 from the date of this aiiiilication, the rt'tcrence 
 was (lianjjiil to I'arrie. JiUrn v. WIIkijU, 1) P. 
 R. 75.- Boyd. 
 
 3. J'riiiiiiliiiijn ill ^ffi)iler',i Offirp. I 
 
 In procc'i'ding upon a reference under a decree, i 
 the master eannot under the (Jenerid Orders 244, | 
 245, order a person to lie made a jiarty to the , 
 suit a>,Miust whom any relief is sought, and 
 ■where in proceedinj; under a decree for the ad- i 
 niiuistration of a testator's estate, the master 
 directed cnu' |(., who had heeu in partnersliip i 
 with the testator uj) to the time ot his death, to ( 
 be made a party, and r<t|uiring him with the 
 executors to liring in under oath nn account of. 
 the partnirship dealings, against which i). ap- , 
 pealed, the court (rroudfoot, V. P.):— HiKl the 
 object of niakii g D. a party was for the purpose : 
 
 either I'f relief or discoveiy, and in either view 
 the plaiiitiH could not olitain it in this mode of 
 proceeding, Ui- 1>. , so far as discovery was con- 
 cerned, could only he regarded as a witness. 
 JJvj'lur V. J/iiniioti, 28 Cliy. 22. 
 
 4. Jiijinrt. 
 
 (a) Coiijiniiiiii/. 
 
 A report rtcjuiring c(>ntiimation does not be- 
 come al solute until thiity d; ys Ik ni tie making, 
 and tiurtetn days turn the tiling tl ireol have 
 eli'pfid. J>'i JaiIiiv, Jii/nxy. Wi^iillt i n, S I'. ]{ 
 28!).— Blake. 
 
 ^^liele a decree ouleitd pd} mint forthwith 
 after the n akin^ ff a i(]iit, an cMiutiin is- 
 sutd hi lore the lepoit had lien tilid, ■nasset 
 a.'-ide with cc sts. >''imhle, the lejort did not re- 
 (piire ci nliimation, under the wording of the de- 
 cree. J< iltil V. Aiiili i-^iiii, 8 I'.Ji. 387.— !?tei hens, 
 J^i/eree. 
 
 (1)) Olhifr Cii^i'n. 
 
 A mastei''s re}iort made during long vacation 
 in contravention oi <;. ((. 42."), is as iigaiiist a 
 dctcndi.nt havinti no notice of the proiecdings 
 on vvliich the niioi t is lounded, entiii ly nullaiul 
 void. Fiillir V. MiJ.iiiii, a 1', 11. ri4!). — lloyd. 
 
 After the closing of his report, a nia.-'ter should 
 not certily iis to any niatlirs heloic him in die 
 cour-^eolthe imjuiiy upon which he lia.> icpoiteil, 
 unless called ujon to do so hy the eouit. Atter 
 leport any ccitilicate, unks.-, called lor hy the 
 court, is iiregulai and inipio[ier. JiumJnitcli v. 
 J'any, 27 Cliy. i'Xi. 
 
 The master, at the reipicst of the defendant, 
 reported sjiecially in his lavour as to many mat- 
 ters not [laiticularly nf erred to him, hut which 
 formed the stihjccl ol charges of fraud made in 
 the bill ol complaint :- Held, that the master 
 had |iower to report spieially any matters he 
 ilctnied iiropcr for the information of the court, 
 and that it was his duty to so repoit any matter 
 bearing on the (piestion of costs. JJiiyi.i v. JlnyiK, 
 29 Chy. 1)0. 
 
 5. A pill nl from. 
 
 Where a master in his discretion fixes the 
 commission to be allowed to parties under (i.O. 
 (i'4.S, and settles the disbursements in the suit, 
 there is an ajijii al to a jutigc in chambers from 
 his finding. The disbursements should still be 
 submitted to the master in orilinary lor revision, 
 like other bills of costs. Ctnnplnl/ v. Canijiliil/, 
 8 P. IL 1.VJ. — Bhike. 
 
 A rcjiort must be tiled before a notice of appeal 
 from it is given. Senible, that seven clear ilays' 
 notice of iippeal is neces.iary. J/nyis v. liiiiji-i, 
 8 P. K. .>();.- Hhike. 
 
 On a (|Uestii)n of rent, there was a conflict of 
 eviilence as to the amount thereof. On appeal 
 from the Master's tiuding : — Held, that the wit- 
 nesses ha\ing been examined before the master, 
 he was a better juilge than the court as to the 
 weight to be given to the testimony of the res- 
 
C40 
 
 641 
 
 PRACTICE. 
 
 642 
 
 in litlier view 
 1 tlii-s mode of 
 iviij wns con- 
 as a Vtitness. 
 
 n ilocs not be- 
 
 ni til' niaUiiig, 
 
 \: ll cifol have 
 
 ll> i„, 8 1'. J{. 
 
 |uiii4 I'oitliwith 
 
 iM ( iiti( 11 is- 
 
 (ilul, mis tet 
 
 (lit (lid not re- 
 
 iiiigol till' de- 
 
 87.— Miilic'iis, 
 
 Ion;.' vatnlion 
 it< as ;i^ain>t a 
 lie 1 rotcidiiigs 
 itiii Iv null and 
 
 r)-)ll,--J:oyd. 
 
 uuiu.-terelidiild 
 lore him ill the 
 If lia.> i(.'ii(ii tid, 
 ii/iiit. Alter 
 lied lor liy the 
 JiuMliatcli V. 
 
 tlio defendant, 
 < to many mat- 
 liiii, liiit which 
 fraud made in 
 hat the master 
 my mutteih he 
 in of tlie Ldiiit, 
 [Miit any matter 
 iai/iK V. Jliii/(ii, 
 
 .'tioii fixes the 
 ;ies under (i.O. 
 its in the suit. 
 L'liamliei's from 
 Nhoiihl still iiu 
 iry for revision, 
 ■// V. Caiiijilii'll, 
 
 lotiec of aiipcai 
 veil elear days' 
 Idlji.i V. JJtiyi", 
 
 8 a conflict of 
 of. On appeal 
 I, that the u it- 
 ire the master, 
 oiirt as to the 
 uny of the res- 
 
 pective V. 'tncBBCB ; and the ({ucstion aa to tho 
 proper sum to he allowed for rent, was one with 
 wbieli the master w as quite as competent to deal, 
 us the court could be. Liltlt v. lirunkir, 28 C'hy. 
 191. 
 
 Held, that as the matter in (juestion in this 
 case had heen referred to tlie master by the de- 
 cree, which was for speeilic perforuiunce, it should 
 have been disposed of in his oliice under O. O. 
 2'2(>. StamiiHrH v. O'Douohue, iiSi thy. (j4. 
 
 The defendant was the assignee of a policy of 
 assurance on his brother's lile, in trust to pay 
 himself certain moneys and expend tho residue 
 in the support and maintenance of the assured's 
 family, and having made further advances on the 
 advice of his brother, who was a practising bar- 
 rister, he took a second assignment of the policy 
 absolute in form. On the death of the assured 
 the defendant, asserting a riglit to obtain pay- 
 ment of the policy, went to the head oliice of 
 the company in the United States, in order to 
 hasten tlie payment, pending a dispute with the 
 plaintiff's — the family of the assured — as to his 
 rights. In taking the accounts between the 
 parties, the master found that tho defendant 
 acted bona tide in so doing and allowed his ex- 
 penses, although the company, at the instance of 
 the plaintifl's, refused to pay him, and sent tho 
 proceeds of the iiolicy to their solicitors in To- 
 riiiito, to be paid over to the party entitled : — 
 Held, on appeal froni the master (atlinning his 
 ruling), that as the defendant was under either 
 assignment entitled to possession of the fund — 
 either as trustee or individually— and as tho 
 master under all the circumstances, thought fit 
 to allow such cx]ien8es, and it did not appear 
 clear to the court tlnat such allowance was wrong, 
 the item should be allowed ; — Hehl also, that the 
 master had projierly aUowcd to the defendant in 
 liis accounts a fee of $10 paid by him to counsel 
 for advice as to his action in respect of tho two 
 assignments. Hnyea v. llaijeH, '2'J C'hy. 90. 
 
 On an appeal from the master on a question of 
 the weight of evidence, the court, though not 
 satisfied as to what was the actual truth of the 
 case, coul'l not say that the master was wrong, 
 and therefore dismissed the appeal, with costs ; 
 lil)erty being given to tho appellant, however, 
 to examine the witnesses again at the next sit- 
 tings before the learned judge who heard the 
 appeal so as to enable him to dispose of the mat- 
 ter with greater satisfaction to himself, in which 
 case costs would be reserved. Mc Arthur v. 
 PrUlie, 29 C'hy. 500. 
 
 V. Jl'uge or Referee in Chambers. 
 
 1. Juritdiclion. 
 
 A motion made under R. Si. O. c. 49, b. 9, to 
 appoint an administrator nd litem of the estate 
 ot a deceased person, may be made before the 
 referee, as that section merely extends a juris- 
 diction already possessed by him under Ci. O. 
 5(). C'olhtr V. Swuyzie, 8 1*. K. 42, ~ Stephens, 
 Hiferet. — Spragge. 
 
 The referee has no jurisdiction to strike out 
 interrogatories for impertinence. WiUUan» v. 
 Corby, 8 P. R. 83.— Stephens, y/^/eiee.— Proud- 
 foot. 
 
 41 
 
 The referee in chambers has no jurisdiction to 
 make an order for payment into court by an 
 executor or administrator of nmoiints admitted 
 by him to be in his hands. He < umj— Wiiy/it 
 V. Curry, t'urryw Curry, 8P.K. 340. — .*<tephens, 
 liel'eree. 
 
 'efcrkin 
 
 See In re SeWy, 8 P. R. 34'_', p. 589 ; /'i 
 V. McFarlam tt al., G A. IJ. 254, p. ti.'59. 
 
 2. Appeal j'roiii. 
 
 Where a solicitor's clerk, thrnnph forgetful- 
 ness, neglected to set do« ii an appeal as reiiuiied 
 by (J. O. 042, the referee refused to extend the 
 time for appealing ; and — on appeal, Spragge, ('., 
 upheld his lailing. Duunard v. AlcLnd, 8 P. I{. 
 .343. 
 
 VI. Service Generally. 
 
 1. Oj'Bllh. 
 
 (a) Ahscondinij Defendants, 
 
 Where a bill had been filed for foreclosure, 
 and the defendant, tho ollicial assignee of the 
 mortgagor, absconded before the bill was served 
 an order was granted allowing substitutional 
 service on one of the two inspectors of the insol- 
 vent's estate. London Loan and Aiji-ncy Co., v. 
 ThonijiHon, 8 P. R. 91.— Stephens, lieferee.— 
 Proud foot. 
 
 Where the defendant in a suit had absconded 
 to the United States before the tiling of the bill, 
 and two months after the tiling of the bill an 
 assignee in insolvency was appointed by the 
 creditors of the dufeiKlaiit, and the assignee was 
 served with the bill, but not within the time 
 limited by the General Orders, the referee in 
 chambers made an order allowing the service as 
 good, though made fourteen months after the 
 bill Wiis tiled: — Held, on appeal, atiirming the 
 referee's order, that the defendant having ab- 
 sconded was a snllieient reason for not proceeding 
 with greater diligence. Uoderkh v. Brodie, 8 
 P. R. 480.— Blake. 
 
 (b) Service Abroad. 
 
 See EMhunrje Bank v. Spriwjer, 29 Chy. 270, 
 p. 240. 
 
 (c) By Publication. 
 
 Where a defendant is served by publication 
 under G. 0. 100, in order that a pra;cipe decree 
 may be obtained, the notice should contain the 
 special endorsement in schedule G. to Order 436, 
 otherwise the cause must be set down to be 
 heard pro confesao. Fhtrrill v. Forbes, 8 P. R. 
 408.— Proudfoot. 
 
 2. Acceptance ot' Service. 
 
 Notice of examination ai I hearing was served 
 at a few minutes past four, on the last d:iy lor 
 
643 
 
 PRINCIPAL ^ND AGENT. 
 
 644 
 
 r 
 
 •as 
 
 l: 
 
 »:• 
 
 giving notice, on solicitors of one ilcfendant, who 
 adniittpil service, Imt on the s;\ine day, discover- 
 ing that the notiu'u liad lii'un served too lite, they 
 wrote to the jil lintitl "s solicitors repudiating their 
 a<linis3ioii, an<l saying tliat tiiey wouM move to 
 Bet aside the notiee. On a motion it was shewn 
 that there was no other service or notice than as 
 ahove nientiipiuil, and the ai)iilication was there- 
 upon refused : Soott c. Hurniiam, 3 Chy. ( 'hanil). 
 402, followed. Scmhie, tiiat tiie acceiitance of 
 service woidd not he binding, liaving been so somi 
 repudiated. Wrijld v. Il'«//, S 1'. K. 328.— .Ste- 
 phens, lii/irce. — iJlake. 
 
 VII. Stavino Proceemncs. 
 
 Where a decree had been made declaring the 
 jiliintitFto be eiititle<l to insurance moneys, and 
 directing a reference to ascertain the amount and 
 payment forthwith after the making of tlio re- 
 port, an order staying proceedings in tiie master's 
 olHce was rel'usecl peuiling an appeal from tiie 
 decree, liat'i-r v. Shindard Fire Ins. Co., 8 I'.K. 
 41,— Stephun.s, ]{'/'< ne. 
 
 1. Officers of the Crown, GAQ. 
 I 2. Aijentu oj Corporations, 64G. 
 
 3. An to Prommorn N'otcs, G47. 
 
 4. As to Sale of OooU, 047. 
 
 5. (Mer Cases, «)43. 
 
 VI. UlOHT.S OF AOEHT AOAINJflT PRINCIPAL, 
 (!I8. 
 
 VII. LlARlLITY OF AOENT TO PRINCIPAL. 
 
 1. Agent Piiniiasinij Property of Princi- 
 
 pal, G48. 
 
 2. For Investment of Money, 649. 
 
 VIII. LiABiLiTT OF Principal to Tiiibd 
 
 Pekson.s. 
 
 1. For Fraud of Agent, Q^d. 
 
 2. Other Cases, 050. 
 
 I.\. .MhcKLLAVEOUS CA.SF.S, 651. 
 
 X. Particular' AdE^rs — See The Sev- 
 eral Titles. 
 
 VIII. Abatkmi'nt of Scit. 
 
 Th'? suit boeanvj abated between the date of 
 the rep u't and tlie timj tixe 1 by it for piyni'Mit 
 by sul).se(jiieiit incuniUrancers. On an apidiea- 
 tioii for a lin d order for foreclosure it was r^'Iuse I 
 anlanewdiy wis aiipiintetl, allowing the in 
 cunljran 'ers ma llitionaltiniofor payment eijual 
 to the time tlie suit rem lined abated. Big<i ir v. 
 Wa:i, 8 I". U. 158.— Blake. 
 
 puECKi)i:xcf:. 
 
 Of Counsel. — See Lenoir v. Ritchie, 3 S. C. R. 
 575, p. 71. 
 
 PREMIUM NOTES. 
 
 See iN.sfKANCE. 
 
 PRESCRIPTION. 
 See Limitation of Actiok.s and Slits. 
 
 PRESUMPTIONS. 
 
 See Evidence. 
 
 PRINCIPAL AND AGENT. 
 I. Appointment of Aoknt. 
 
 \, By Corporations — See Corporations. 
 II. Proof of Aokncy, 644. 
 
 III. Ratification of Aoency, 645. 
 
 IV. AoENT Taking Commis.sion from Oppo- 
 
 site Parties, 645. 
 
 V, Power and Authority of Aoent. 
 
 II. Proof of Aoency. 
 
 One C. entered into agreements with several 
 parti^,s to carry freights for them at certain 
 named prices to be paid to the defemlant, not 
 nieiitiiniin;^ any particular vessels in which the 
 same were to be oarried and tiiun agreed witli 
 the defendant as part owner and master of ves- 
 sels in whicii the plaintitTs hail an interest, at 
 rates considerably below the sums agreed upon. 
 The defendant and C. both swore that the ar- 
 rangement liad not been made by 0. as agent of 
 tiio defendant, but for his own benefit: — Held. 
 that the fact of the dcfen<lant having remlercd 
 an account in his ow^n name .and also sued for a 
 portion of the freight, though aided by the other 
 circumstances mentioned in the juilgnient, was 
 not sutKcient to countervail the positive denials 
 of the defendants and 0. , that the contracts had 
 not been made in behalf of and ivs agent for the 
 defendant, freight being, prima facie, payable to 
 the master of a vessel, and the cargo need not be 
 <lelivered by him until the freight thereof is 
 paid, .vlthough in any other transaction such 
 conduct would have been strong evidence that 
 the ilefendant was the principal contractor. 
 Merchants Bank v. Graham, 27 Chy. 524 
 
 Held, that, if a person acts notoriously as the 
 oflicer of a corporation, and is recognized by it 
 as such officer, a regular appointment will be 
 presumed, and his acta will bind the corporation, 
 although no written proof is or can be, adduced 
 of his appointment. School TrtisteeJi of tlie Town- 
 ship of Hamilton v. Neil, 28 Chy. 408. 
 
 In an action for the non -delivery of certain 
 groceries sold : — Held, that upon the evidence 
 set out in the report of this case, K., by whom 
 the sale was made, was shewn to be the defend- 
 dants' agent authorized to sell on their liehalf. 
 Ockley el al. v. Masson et al., 6 A. R. 108. 
 
 The plaintiifs entered into a contract with one 
 F. to fence an extension of the defendants' rail- 
 way. F. was a shareholder of the defendants' 
 comp.iny, and general manager of that part of 
 the road which was in operation, and was con 
 
6U 
 
 €45 
 
 PRINCIPAL AND AGENT. 
 
 646 
 
 |t6. 
 646. 
 , 047. 
 
 .7. 
 
 .ST Principal, 
 
 UINCIPAL. 
 
 lerty of Prinei- 
 <iey, 049. 
 
 VL TO TUIH]) 
 
 49. 
 
 51. 
 
 See The Sbv- 
 
 cy. 
 
 ts with several 
 liom lit curtain 
 ilofuiiilaiit, not 
 Is ill which the 
 luM. iigrceil with 
 1 inistisr of V03- 
 [ ail iiiturest, at 
 n ai,'reeil upon. 
 >re that the <ir- 
 y 0. as agent of 
 henofit :— Held, 
 haviiij; remlered 
 d also 8110(1 for a 
 led l»y the other 
 I juilgincnt, was 
 ! positive denials 
 ho contracts hail 
 as .igeut for tiic 
 facie, payable to 
 :argo need not be 
 eight thereof is 
 ;ransaction such 
 iig evidence that 
 ipal contractor. 
 Ohy. 524 
 
 otoriously as the 
 recognized by it 
 ointment will be 
 . the corporation, 
 • can be, adduced 
 MeeJi of tlie Town- 
 y. 408. 
 
 livery of certain 
 )on the evidence 
 so, K., by whom 
 to bo the defend- 
 on their behalf. 
 
 A. R. loa 
 
 jontract with one 
 defendants' rail- 
 if the defendants' 
 ir of that part of 
 m, and was con 
 
 tnictor for the construction of the extension. 
 Tiie only writing between the parties was the 
 following informal nieiuorandnm, prepared by 
 one of theplaintilFs : — " Uknit.kw, (!th .January, 
 187(), Mi.'morandum of fencing between Muskrat 
 river oast to Renfrew ; T. & \V. Murr.ay to con- 
 struct same next spring, for CO. II. It. Co., to ))0 
 equal to .5 boards (J inches wide— posts 7 to 8 
 feet ap;irt— for SI. 'Jo per rod. Company to fur- 
 nish cars to distribute lumber. T. & \V. M ukuay, 
 A. I{. Foster. " During the progress of the work 
 F. drew drafts on the company, in favour of the 
 plaiiitill's, which were .accepted and paid liy them. 
 They .also allowed the i)laintitrs to ret.ain various 
 sums duo by tliein to the company as freight, 
 charging the amounts at stated periods to F. and 
 releasing tiie plaintilFs, who were in turn charged 
 with the amounts by F. The jury were asked 
 whether the plaintiffs, wlion they made the .agree- 
 ment, supposed that they were contracting with 
 the coMii)ai:y, and were t(d(l tli.it, thongli F. w.is 
 not the agent of the compaiiy to make the con- 
 tr.aet, yet if he professed to be .acting for the 
 company and working in the company's name, 
 it would be binding on the company, unless they 
 repudiated it ; and they were asked whether tlie 
 company had .ailopted tiie contract, by p.aying 
 money or allowing freight : — Held, pur Sjn-agge, 
 C. J. ()., and Burton, J.A., that there was niis- 
 direetion, as it w.as immateri.il what the plain- 
 tiffs understood if F. bad not luitliority in fact 
 to make the contract ; and that there could be 
 no ratification or a(lo[)li(iii of tin; contract by the 
 company, unless they were, at the time, aware 
 that it had been entered into by F. professedly 
 as the agent of tlie company ; and Held, also, 
 that the payments, wlietlier by money or the 
 allowance of freight, M-ero not any evidence of 
 adoption in the absence of hucIi previous know- 
 ledge : — Held, also, that there was no evidence 
 to go to the jury that F. so acted, or professed 
 to act, and tliit the plaintilFs should tiierofore 
 hive been nonsuited. Osier, .1., dissented, on 
 the ground that there w.is no inisdireetioii, and 
 that the appellants bad failed to convince him 
 that the unanimous judgment of the court below 
 was wrong. Morrison, .l..\., agreed with Osier, 
 J. The court being thus eipLally divided, the 
 iippeal w IS dismissed, and the judgment of the 
 Queen's Rencli stood afKrmed. Murraij et <tl. v. 
 Canada Central It. II'. Co., 7 A.Il. OJO. Atlirm- 
 ed in Supreuio Court, 8 S. C. H. 3\'^. Special 
 leave to appeal to Her M,aj(^styin council refused. 
 See 8 App. Cas. 574, p. 059. 
 
 III. R.\TIFIC VTION' OV AOENCY. 
 
 See Van'terlip v. Siiiylli, 32 C. P. 60. 
 
 to, and paid a sum of money to the plaintiff. 
 The plaintilf said that such sum was paid not as 
 commission, but as a gratuity :— Hclil, that such 
 a sum, whether received as a commission strictly 
 so called, or aa a gratuity, was a proKt directly 
 made in the course of and in connection with 
 the plaintilF'a employment, and would, there- 
 fore belong to his employers, the defendants ; 
 but as it appeared that the dofendivnts wore fully 
 aware of the plaintilf having reoeivoil such sunn, 
 and made no objection to his ret lining it, hut 
 with full knowledge thereof negotiated with 
 him for a settlement of his remuneration, they 
 could not afterwards, in an action by the plain- 
 till for such remuneration, set otF such sum. 
 Ou'.verwell v. Campion d ul., 31 C. P. 342. 
 
 IV. Agent Taking Coiimlssion from Opposite 
 Parties. 
 
 The plaintiff, a laud agent, w.as employed by 
 <lefendant8 to sell certain land at a stipulated 
 price, and in the course of his employment, and 
 after negotiating with iin intending purchaser, 
 an exchange was effected by certain of his lauds 
 beinu taken in part satisfaction of the defend- 
 ants price, and the plaintiff demanded commis- 
 sion from the purchaser for effecting such ex- 
 change, which the purchaser, without acknow- 
 ledging the plaiutiH a right to make it, acceded 
 
 V. Power anp Authority ok Agent, 
 
 1. Office.r-t of the Cnnen. 
 
 Per Ritchie, C. ,T. ; — Held th.at neither the 
 engineer nor the clerk of the works nor any 
 subordinate otli .-or in charge of .anj' of the works 
 of the Dominion of Canad.a, have any power or 
 authority express or im])lied under the law to 
 bind the crown to any contr.aet or expenditure 
 not specially authorized by the express terms of 
 contr.aet duly entered into between the Crown 
 and the contr.actor .according to law, and then 
 only in the specitie manner provided for by the 
 express terms of the contract. O'Urien v. The 
 (^iwen, 4 .S. C. R. 5'J9. 
 
 I 2. Agents of Corporations. 
 
 \ The pl.aintiffs were a company incorporated 
 I under C. ,S. C. c. 63. and 24 Viet. c. 19, for the 
 manufacture and sale of cheese, &c. On tho 10th 
 ; of August, 1878, a written .agreement w.as entered 
 ' into betwee'i one (.'., the plaintiffs' secretary and 
 ' salesman, and one M., on behalf, as was st.ated, 
 I of the plaintiffs and defendants rosp'ctively, and 
 ' which w.as signed bj' C. and M., for the s.ale of 
 I the whole of the plaintiffs' July cheese, as also 
 of their August, !Se])teinber, and October cheese, 
 at prices named : — Held, that upon the evidence 
 j set out in the case, C, in entering into tho con- 
 tract for the plaintiffs, w.as acting within the 
 I scope cf his employment and duties ; and that 
 tho defendants could not deny M. 'a authority to 
 act for them, for they had adopted and ratitied 
 the agreeineut. The Albert Checne Co. v. Leem- 
 ing et u/., 31 C. P. 272. 
 
 1). on the suggestion of R. and the bank of O. 
 th.at he should purchase certain lumber held by 
 the bank as security for advances made to II. 
 reciuirod a guarantee from the bank that the 
 lumber should be satisfactorily culled, and any 
 deficiency paid for by the bank. The directors 
 of tho bank thereupon resolved to submit the 
 lumber to a culler, and if he reported satisfac- 
 torily, to give the guarantee. Their local agent, 
 however, with the aiiprobation of their head man- 
 nager, without previously employing a culler to 
 report, gave a guar.mteo in writing, but not 
 under seal, "on behalf of the bank " that the 
 lumber should be satisfactorily culled previously 
 to shipment : — Held, that the bank was liable 
 on the guarantee for any deficiency resulting 
 from unsatisfactory culling, for the plaintiffs 
 were warranted in assuming that the agent giT- 
 
647 
 
 rJilXC'll'AL AND AGENT. 
 
 648 
 
 r 
 
 KM 
 
 ..»■ 
 
 
 iiig t liiul tlie iic'i'cx.saiy iuitlioiity, ami no stal 
 Kua rt'<|iiii>ii ; .iml it Uic liaiik wihiitilto ii|>iiili- 
 nt<' it, ility h!ii>ulil ri'|iay tliu iiiciucy |>iii(l to 
 thbtii )>y l>. for tli(. luiiiljui' :- llclil, tliut tln' 
 above guarantee did not (.oiik! williiii tlie ilcs- 
 I'riiitioii ot II j;\iaraiitc(; tor lln,' ai;t of tliird [lurty, 1 
 for tlif l>anlv WHO silling iiinlLr li. S. (». u. I'Jl, ; 
 '<y[virtiR' of liting holdcrh ot a waiuliousc roocijit. j 
 l)ob<ll<t ill V. 'Hif Oiittiiii, Vimk it nL, 8 0. I!. ' 
 thy. 1). ii!)'J. lievLr.std on h\>\m.i\\. 'J A. It. J«4. 
 
 See ulsi) " Kaiiavavs anh JIaii.vvay C'o.M" 
 I-ANIES," II. '1., II. iu'A. 
 
 Soo a]s<, \'lll. p. (MO. 
 
 .*}. A:* lo Proiiiksorij XotfK. 
 
 IJjjon the inHcilvcncy of.). 15., wlio carritd ou 
 liu.iinuK.s undti tlii' naniuot 1!. & Co., liiM\vilt;)inr- 
 I'liaHL'd tli<' (..->tatc troni liis aijoignce, and uutlior- 
 i/eU liini liy {.ower of attorney to manage the 
 Kanio, auil to make [ironii»<sory noteK in and alioiit 
 lier said lni.-inr-<8. lieing jirt ssed for jiaymint 
 of iiotew whiili lie iiad given for a delit due lietore 
 Ids ilino!ven< y, he gave liLs crtditor notes sigiRil 
 per ijro. H. i^t Co. J. H. Suhseipieiitly he was 
 iiUCil (in the.se notes, when lu^ .'swore they weie 
 his wife's notes, and made witli her authority, 
 whereuiion the hohler sui d the wife. In tlie 
 autiun again.st her slie nwore that »\u^ luul sseiiar- 
 utc estate and that ^he liad jiureiiascd her lius- 
 liand's entatc v itli it ; litit, tin the adviee of her 
 eouiisel, .■<he declined to give any information 
 toneeriiing it. (She swure that J. li. had no 
 authority to give the notes in question, liut it 
 iiinieared that he frei|U< iitly dincusstd his own 
 affairs with tier, and he would not swear that he 
 did not tell her that he had given these notes :— 
 Held, allirniing the judgment of the Count}' 
 Court, that notwithstanding the power of attor- 
 ney, the real seope of .1. 15. 'a ngeney could he 
 ascertained from any admi»'<ilile evidence, and 
 that theie was sullicient to ju.-'tify the tindingof 
 the judge that J. B. hud authoritj- to sign the 
 uotoa. t'oo/jev et ul. v. lilackiuck, 5 A. li. 535. 
 
 4. As to Sale of Goods. 
 
 The plaintif!' sued tho dcfendaut, a piano- 
 maker, for lireaeh of a warranty given by his 
 salesman on the sale of a piano that the instru- 
 ment was then sound and in good order : — Held, 
 that the sale^^nian had authority to give •he war- 
 ranty. Mf Mullen V. Wiliiums, 5 A. li. 518. 
 
 The plaintill's delivered to one R. some cultiva" 
 tors for the purpose of selling, as their agent, for 
 cash or good notes. Three of these he exchanged 
 with the defendant, who was aware of the fact 
 of agency, for a buggy, which he sold and re- 
 tained the proceeds. It was shewn that on a 
 previous occasion K. had traded a cultivator 
 with one RI. for a horse, which he sold and gave 
 the plaintiffs a forged note purporting to be that 
 of the pui'chaser ; and on the same day he traded 
 another cultivator with one D., for a watch and 
 $7, but for this also it was said he returned a 
 note to the plaintiffs. It was not shewn that 
 defendant knew of either transaction, ami the 
 plaintiffs had prosecuted R. for the forgery. In 
 an action of replevin the jury gnve a verdict in 
 favour of the defendant, but the county judge in 
 term set it aside, and directed judgment to be en- 
 
 tered for the plaintiffs, which on appeal Mas 
 allii iiied, with coats. .SleicaiU it at, v. Jtuiiniln, 
 7 A. It. 515. 
 
 See OMci/ il at. v. Ma^nu, G A. R. 108, p. (J44. 
 
 5. Olhrr CtixcH. 
 
 An agent instructed to receive pnyim nt for 
 his pi'iiicipal, cannot as a general rule accept 
 anything but nioiiey. .See t' iiiier v. liinf Jiin- 
 Irict ittitml J'lrt hit. Co., '2 (). U. IKi, p. a.ja. 
 
 Hen Xaaiidlh v, .Maiinimj, 5 A. II. 1'2(!, p. l.'il. 
 
 VI. RUJIITH OF A(»K.N1' AOAINST I'iMNCII'AI.. 
 
 In coiiHidcration that the plaintitf woidd act 
 as agi nt for the defendant in the purchase and 
 conhignment of furs to the defemlant, and as- 
 sume one-third of the hisses to the t xtcnt of 
 Jili.liOO, all lo.s.ses above that amount to he borne 
 by the deteiidaut, he agreed to jiay plainlili 
 one-half the net jirotits of each year's tiansao 
 lions. The plaintiff impugned the hona lidc.^ of 
 a settlement which he had hecii induced to mukc 
 with the defendant, acting through mi agent, 
 and the court being satialied that the scUlcnient 
 hatl been secured by the fraudulent mi.>re[iru- 
 sentatious of such agent, Ilehi, thi' plaintdf en- 
 titled to an account of the transaclioini and an 
 ins[iection of the books of the defemlant, not- 
 witlistauding the provihions of the statute ,'t(i 
 \'ict. c. iio, s. I (l{. S. (). c. I,'j3, M. ;{). Jt'diji r< 
 v. L'lliHUiin, '27 Chy. 137. 
 
 Liability of principals to brokers for inoueys 
 advanced for the purpose of buying and selling 
 grain on margin. See Itki: et til. v. Oiniii i-t al.. 
 4 0. R. 570, p. 258. 
 
 VII. Liability ok Ahent to I'ltiN'MPAr,. 
 
 1. Atjrnt Parchaahiij Pvuiierty of J'rinviiiitl. 
 
 The rule of equity which prevents an a^jcnt 
 acquiring a benetit for himself in any dealiiii^.s 
 with the estate of the agency, acted up<in where 
 an agent had been employed to sell or exchange 
 certain lands of the princi[ial, which, however, 
 the agent had been unable to effect, an<l the pr<i- 
 perty was shortly after offered for sale by auction 
 under a power of sale in a mortg.ige, when the 
 agent bid, and became tho purchaser. '1 he 
 Court (.Spragge, C.,) in a suit imiieaehing the 
 purchase, declared the agent a trustee Utv tiie 
 principal ; but as the plaintiff ni.ade several 
 unfounded charges of fraud and other niiscon 
 duct, the relief a^ked was given, without costs. 
 Tltonqmon v. Jiulman, '28 Chy. 35. 
 
 The defendant 'had for some years actt.d for 
 the plaintiff in looking after his lands, and pay- 
 ing the taxes ; but in 1874, they had some difli 
 culty, and from that time the plaintiff ceaseil to 
 correspond wivh the defendant, and employeil 
 one H. to pay the taxes, and look after the pro- 
 perty. H., without any instructions from the 
 plaintiff, on one occasion wrote to the defendant 
 requesting him to ascertain tho amount of the 
 taxes, and to draw on him therefor, with which 
 request the defendant camplied, but nothing 
 further occurred to change the relative position 
 of the parties bel.)re the sale : — Held, per Bur- 
 
C4.S 
 
 C49 
 
 rRTNCTPx\.L AND AGENT. 
 
 G50 
 
 111 ii])|(iil \\:iH 
 ((/. V Ji'ijllllll.l. 
 
 K. KIK, J,. (Ml. 
 
 V(! (layiiK lit fill 
 rill Mile accept 
 V. (/'(/;■(■ J)U- 
 IK), p. a5.T 
 
 ,. 12(1, 
 
 1), i:;t. 
 
 IT I'lilNcri-AI,. 
 
 iitill Would act 
 
 V I'lircl.iiHc and 
 
 iidiiiit. and as 
 
 till! t xtcut llf 
 
 uiit to lie IjOlllO 
 
 to pay plaiiilill 
 
 I ycai'a traiisac- 
 
 \i>- liiiiia liduh (if 
 
 luluccii to niukc 
 
 oii^li ,11 aj^ciit, 
 
 I tiic BctllclllCllt 
 
 uliiit iiii.srcprc- 
 tlu' iilaiiiliir en- 
 ^':l('tloll^i and an 
 ilLftiidant, nut 
 the .statute 'M't 
 ». I{). Ji'iiiji /■•< 
 
 kers for iiiiincys 
 ying and selling 
 , V. Giiiiii <-f ((/., 
 
 > l'HIN''irAI,. 
 
 ' of J'rinciiiiil. 
 
 revents iin a^'ent 
 in any dealiiii,'s 
 :ted upon where 
 sell or exchaii(,'e 
 rthich, however, 
 uct, and the pin 
 r Halo liy auction 
 tgage, when the 
 urehaser. 'I'ln' 
 impeaching tliu 
 trustee for the 
 IT made several 
 d other niiscon 
 , without costs, 
 15. 
 
 I years acted for 
 landp, and pay- 
 y had some dith 
 laintitl' ceased to 
 , and employed 
 jk after the pro 
 ictiona from the 
 to the defendant 
 I amount of the 
 ,'for, with wliieh 
 id, but nothing 
 relative position 
 -Held, per Bur- 
 
 ton, .7. A,, that nnder those rircumit.-inno.s tlie ' 
 contldentinl relations wlii<'li had previoiisly ex- 
 JBted munt In; hehl to hav ceased, iitid that the 
 defendant was not ]ire('lnded frniii ]iiirchasiiig 
 the ]il liiitiir's land at a sale for taxes. I'er 
 Proudfoot, .1., that what took jilace could not 
 have the ctFect of ditenniiiing tlii! lidiiciary riv 
 latioiHlii;i hi'twcen tiieiii, and therefore the 
 defendant could not )iiircliase the ))laintill"s land 
 to his jirejudice. Ftiiiiin;/ v. Mi'Sulili, H A. K. 
 6."j(i. 
 
 '1. Fur ]hi'' siiin'iil iif Mnniji. 
 
 Held, th.it it is a lii'i'ach of ilnty in a person 
 cutiiisted with money to invest on real estate to 
 iiive-;t on the security of a seeonil mortg:ige, 
 uiile.ss with the sanction of tiie lender, which 
 Hiiili person inust iinive, and which the evidence 
 ill this case f,iileil to estaldish. The vallUMif the 
 ])riiperty herein was aliout .'?1,0(IO; the first 
 liinrt;,'.iu'c lieiiig for .^.'tJ.'i. and thi; second for 
 J4(l(), t.iken to the plaintill'. The liorrower was 
 a rcspectilile inech.inic in receipt of good w,ig(ts. 
 Occupying tiie ]iropi,'rty himself, wli'ch \v,is situ- 
 ated in the plai'e where all the parties resided 
 and cirrieil on luisiness. The learned judge at 
 the trial found that the defendant was not guilty 
 of negligence so f.ir as the v.iliie was concerned, 
 and tlie I'onrt refusi' i to interfere!. Reiuirks as 
 to the prop.ir form of decl.iratioii in such east,, 
 where tie; defendant was not p.iid liy the lender 
 but by the borrower, rpiii the conllicting cvi- 
 deiiei!, set out ill the case, the learned judge iit 
 the trial found that the plaintiir hid not been 
 infurin"d of the fir.st neirtgage, uiidiM' whiidi the 
 property was soM, le.iviug only ab uit .S iO .ipiiii- 
 oalile to the seeoii 1 in (rtg.igi:. Th'c jurt refined 
 to s,,'t a-iid • tills linding, and sustaiiiid the ver- 
 di.t for the plaintiif. Cartel- v. IIal<-h, .Tl C. P. 
 
 Vni. liHiiiMTy or I'uiNi-irAr. ro TiitRii 
 
 1. Fur Frawl III' Aijfut. 
 
 On the •_»2u<l August, 1S7!I, the defcielants' 
 account at the IJiiik of Montreal, winjre tiie 
 coip'iratiou aeuount w.is kej)t, was overdr.iwn 
 •*l, l."i7.lii. A resolution of the council was 
 thereupon passed, aiithorizing the luayor to bor- 
 row from some bulking institution a sum not 
 ex't'Ciling ??2,0I)I), to meet tin; current li.ibilities 
 until the taxes were avaiialih-, and authorizing 
 hiiii and the town chirk to sign the necessary 
 do'uments therefor, un<l to atlix the corporation 
 seal. On '2iid September, a promissory note, in 
 accordaiK.'e with this ntsolution, was made, and 
 was discounte<l at the JJank of Minitrtiil, and 
 the ])roceeds placed to the defendants' credit. 
 On .Ith So|)tember, a similar note was made and 
 discounted ;it the pl.iintitrs' bank, where the de- 
 feiidanti had kej>t an ac(!ount, but which was 
 virtuiilly closed, though there was a small bal- 
 ance still remaining to their credit. The last 
 uote was in fact fr.iuduleiitly procured to be 
 maile and discountec! ',y one T., who was the 
 defendants' clerk and treasurer, and who was in 
 default, to cover up his defalcations, but of this 
 the plaintifTs knew nothing. T., as such treasu- 
 rer, then, chequeil out of plaintiffs' bank .?1, (>"»(! 
 of this amount, which he deposited to the defeii- 
 <laiits' credit at the liaiik of Montreal, and then 
 
 paid it out on corporation chnf|UP8 for authorized 
 corjifiration jnirposes ;— Held, in an action fm- 
 money had and received, that the plaintitrs were 
 entitled to n^cover the ?jl ,<•■"><), for tii.it T, , thiuigh 
 acting fraudulently, h.id acted in a matter within 
 the aco|ie of his autlnu'ity. ami the defendants 
 had reciived the lieiietit of the fraud. A/d/xoH-i' 
 lidid'W ('orjiiinitiiiii of llir Tmrii af lirorl;iulli\ 'A\ 
 C. I'. 17-4. 
 
 The plaintifT, who applied to the defendants, 
 through one \V., their agent, for a loan, reipiest- 
 ed them by his application to send the money 
 "by chei|Me, addressed to \V," In aceordaiieo 
 with their custom to make their eheipies paya- 
 ble to their agent and the borrower to insure the 
 receipt of the money by the latter, they sent W. 
 a elie(|ue, jiayable to the order of hinistdf and tlie 
 plaintill". \V, obtained the ))l,iiiitill"s endor.sement 
 to the cliecpie, drew tile money, and absconded. 
 The ]ilaiiililF swore that lie did not know that 
 till! |ia))er he signed was a, idieijue, and there w.is 
 no evidence to shew that he liad deilt with \V. 
 in ;iiiy other cliaraiiter than ;is the defendants' 
 a'.'iMit, tiirough whose hands be ev|iectc I to re- 
 ci'ive the nioiiey : — Hild, alliiiiiing tlie decree of 
 I'roudfoot, V. ('., restraining jnnc'eiliu'^s m\ the 
 niortgige wliicli the pliintilf hid given to the 
 defenda its as security for the loan, and dire(!t- 
 ing a recriiivey uiee, that it w-is \V,'s duty to 
 endorse the cheipie to the |)l;iiiitiir (U- to see that 
 he received the iiioney, an I that the dcfell hints, 
 who had put it in his power to eomniit the fraud, 
 must bear the loss. Finn v. Dinuhihin Saviwjt 
 mill /ni<f.-<liii'iil S irii'ti/, )> A. I{. 20. 
 
 C, freight ag.'iit of re^p oiideiits at ( 'h itliam, 
 and a pirtiier in the linn of 15. it ("o,, causeil 
 printed receipts or sliipping notes in the form 
 commonly used by the railwiy eiunp.iny to bu 
 signed by his n inic as tin; einnpiiiy's agent, in 
 favour of R. & Co., for llour which had never in 
 fact been delivered to the r.iilw ly comp my. The 
 receipts aidinowle Igtid thit the eouipmy h.id 
 reoeiveil from 15. & ( 'o. the tloiir adilressed to the 
 ajip 'I! lilts, and were alt icjieil to drifts drawn 
 by 15. it Co., and .-icepteil by apjiell ants. C 
 receive I the |)rocecd-i of thedr.ifts.uid ;ib-te(mded. 
 In an action to recover the amount of the drafts : 
 — llel.l (Fournier and Henry, .1.1, ilisseuting), 
 that the a^jt of C. in issuing a f.ilsi! ,in I frauilii- 
 Iciit rei.'eipt for goods nev.r delivered to the 
 company, was not an .act done within the scope 
 of his authority as tlie conijiany's agent, and the 
 latter were therefore not li.alih;. /■Jrfj v. T/n' 
 (Irriif Wiitfin Hail will I'd. o/' Ciunfla, 5 .S. C 
 U. 170: :5 A. K. 41(;'; 42 Q. B. 40; Oliiur v. 
 Ormt We.'<l,rn It. IV. Co., 28 C. P. 143. 
 
 2. Ollii'r Ciiim. 
 I 
 ! The pl.aiutitr, who had piirch.ised a special ex 
 
 eursion ti -Uet from Toronto to Xi.igariv .and re- 
 ; turn on the same day by a steamer of the defen- 
 I dants, and which iiad been taken up by the 
 
 jiurser on that d.ay, claimed the right to return 
 
 l)y it on the following day uinler an alleged 
 I agreement with the purser, which the latter 
 ! denied. On the purser demanding the plaintiff's 
 ' faro, and the latter refused to jiay it, the porter 
 
 by the purser's direeticm, laid hold of a vaiao 
 ' which the plaintiff was carrying and .i,tte;npte<l 
 ' to take it and hidd it for the fare, whereupon m 
 
651 
 
 rUlNCirAL AND HURETV 
 
 G-)2 
 
 Vim 
 
 r 
 
 
 •cufllu ciihiK'il, uiiil tilt' |il.'iiutiir \va.s iiijiiicil : — 
 Hulil, OkIit, 'F., disMiitiiiK'. tliiit tilt; iiiii.scr wum 
 not tii'tiii^ uitliin tlitj Hcdjit' ul IiIh duty in tliiiH 
 foruilily attt'iii|itiii)^ to tako iinHHiHsiini of the 
 valiitu, ami tlitMluliiuiaiitH wcrt.' nut liaMf fur liitt 
 out. It a|i|ii'aii'il tliat tlif purNt'i' hail Ijiiii hiiiii- 
 lUdlicd liy tilt' |ilaiiititr liulurc a Mia^'iKtratf tur tlit; 
 usBiiult, anil a Iuil' iiniitiMMl, uliicli liu paid. I'lT 
 WilHoii, J. This unilc'r ;W :;;t Viil. c. L'O, H. •»■"», 
 Doui. , thiiugh a n.'lL'ai<i] to the |iurtii'i', iliil nut 
 coiiHtitiiti' any liar tu t\w ]ii't Hint ai.'tiun aj^'ainst 
 the i'(iiii|iany. Field, aUu, that tlitj alh'gi'd ini- 
 prisunuit'iit of tht.- iilaintill l>y the piii^tr in hiu 
 ofFicL- for non-ijaynii lit of his fare not hiinf; an 
 actwhit'b tht'ilt'l'cnilants tin niselvex could legally 
 have done, the tlelendantH uere not liable lor it. 
 Emerndii v. Thv Siiiyuru Saciijiitivii Co., '20. H., 
 C. i*. I>. 52S. 
 
 Action against a hank to recover amonnt pnid 
 on fi)rged eiidiii'NenieiitH. Negligence of agent. — 
 E8to]i|jel. See Aijrinilliiiiil SariiKjit iiiiil Iakiii 
 AsMvciuliiiH V. I'ldirnl liuuk, (J A. U. 1U2, p. 08. 
 
 Belli, that n petition of right dot^H not lie to 
 recover eoinpen.iation fiuni tlie down for daina- 
 gcB «H'canioned hy the negligtiRe of its servantH 
 to the property of an indi\idnal using a puhliit 
 work. Tim (Jutin v. J/f/'to/ii/it dal., 7 8.CR. 
 '216. 
 
 Liability of a niniiieiprd corjioration for the 
 act of its Hervants. - " lies-poiiiieat superior." 
 See Mc.Siiiliii V. Tlic J/iM/ii/', <i'c., iif the City of 
 
 St. John tt tt'i., G s. ( !. K.' r.:u. 
 
 V. CoNTnmcTio.N A.MoxftJ( 'o SritKiiE.s, ti."ir). 
 
 Vl. PuOt-'KEliINUS AoAlNST SlUETY. 
 
 1. Plvadiii'j, (('id. 
 
 2. Other Citnen, C>M. 
 
 \'1I. MlHt ELI.ANElH S C'ASE.S, (\'>~ . 
 
 Vlll. SruEHEs OF rAurn ri.AK I'euson.'s. 
 
 1. CullirlorH— See As^Y.H&MKS'i a.mpTan eh. 
 
 2. Tridniinr.i i>f Miinii'(/,iililii.H See 
 
 MlMI ll'Al, C'i)Hl'ol!A'riliN.S. 
 
 3. Steretanj-TvetiMtri'V of I'lihlie Srliual 
 
 lioiinU- See I'l iiLic ."sciinoi.s, 
 
 IX. MlSCKl.LAXEOUS Ca.SE.«I. 
 
 The contract in this case having been made 
 between a|ipe]lant and respondentH only, anil 
 being a contract of agency a)iart from any (pies- 
 tion of o« ner8hiii,tlie action was jiroperly brought 
 by a)ipellant in hiu own name. Wetdvn v, 
 Yavghiin et ill., 5 8. C 11. 3;"). 
 
 In torts the principle of agency docs not apply; 
 each wrong doer is a principal. TheUhUirw Iiulun- 
 trial Ltiuii uinl Jiiyi.'-lmiiit Co. v. Liiidsey tl ul., 4 
 O. R., C'hy. l>. 473. 
 
 See Coil,y el ul. v. ]VUlkniis, 7 S. C. H. 470 ; 
 6 A. R. Gl'G, p. 112. 
 
 TRINCIPAL ^.ND SURETV. 
 I. Contkact of Suiietyship. 
 
 1. Geiierallij, 052. 
 
 2. liilU und Xoten—See Billh of Ex- 
 
 tHAM.E AMI I'HOMI.SHOUY N'oTES. 
 
 3. Guarantees — See Guauam'EK and 
 
 Indemnity. 
 
 IT. Liability of Surety, G52. 
 
 IIL DUiCIIARUE and RELEASE OF SURETY. 
 
 1. Course of Dealing, Ga2. 
 
 2. Giving Time to Principal, G54. 
 IV. RiQiiTH OF Surety. 
 
 1. Assignment of Securities, G54. 
 
 I. CoNTKAlT OF SlRETV.sUIP. 
 
 1. (i em rail I/. 
 
 Where a mortgagor who has covenanted for 
 payment of the nioitgage debt sells bis ttpiity of 
 rediinption subject to such mortgage he bieomeB 
 .security for the purchaser for the p.iynieiit of 
 such debt, and if the saine is allo\vt;d to iiiii into 
 default he will be entitled to call upon his aa- 
 signee to pay such tlebt. CtirujiLi II v. liulniisun, 
 •27 Chy. (134. 
 
 See Keilh v. J'litelun I'tllii rnimi S'e/ii,iil .Sielion 
 et III., 3 O. !{., <'hy. I). I<t4, p. (;(;•-'; i:.nl„i„;ie 
 Hunk V. Sprinuer. — Siiine /'liitiitiji.sy. Jlann.i, '_'9 
 Chy. '270, ]). (loG; LiijIUbounU et al. v. Wurnuelc, 
 4 O. R. 187, p. 312. 
 
 II. Liauility of Suketv. 
 
 The tcBtator by hia will left money to his 
 children, which was to be paid to them on tli«ir 
 coming of age, and be deposited iij' the executors 
 ill a savings bank in the meantime. One of the 
 executors ai)proiiriated and set ajiart certain 
 moneys of his testator to answer the trusts of the 
 w ill, which moneys wi^re afterward.s paid by him 
 to the solicitor of the guardian of the iiiiants, 
 who made default in payment over of the same, 
 and the amount never reached the hands of the 
 guardian;— Held, that the moneys by the act of 
 setting apart had become, in the hands ot the 
 executor, impressed with the trusts of the will, 
 and he could not projierly pay the same to the 
 guardian, nor could the guardian jmiperly re- 
 ceive the amount ; and, although the fund never 
 reached the liandH of the guardian so as to render 
 her surety liable to make good the amount, yet, 
 under the circumstances, the guardian was per- 
 sonally rcs]ionsible for the money so paid to her 
 solicitor, anil a decree to that ell'ect was pro- 
 nounced, with costs; though as against the surety 
 the bill was dismissed, with costs. Gulltrailli v. 
 Duncombe, 28 Chy. 27. 
 
 See Postmaster General v. .1/cCo// et ul, 31 C. 
 P. 304, p. 626. 
 
 III. DlBCHAliUE AND RELEASE OF SuKKTV. 
 
 1. Course of Dealing. 
 
 The tiefcndants made a joint anil several jiro- 
 missory note with one H., as sureties for him, 
 payable to the plaintiff: — Held, afiirmiiig the 
 
C-)2 
 
 C53 
 
 PIUNCIPAI. AND SUUKTY. 
 
 654 
 
 IHKIIEH, (i,")r). 
 r.TV. 
 
 'KllSONM. 
 
 ntam.Taxkm. 
 
 /■Itltfit .H - iSVf* 
 1 1 " N ,S. 
 
 I II MILS, 
 
 >vt iiniitLMi for 
 .s liisj ((|iiity of 
 ;;(■ lie luciuiifg 
 u |i;ij incut of 
 cil to mil into 
 iilion lii.s ,18- 
 // V, lluli'tii.Min, 
 
 S'r/iiiiil Sirlitin 
 
 (>■_' ; l;'jiliiiiii/e 
 
 . V. Jliiriiin, 'J9 
 
 V. Wiiniurk, 
 
 money to liia 
 tliL'iii on tlitiir 
 • the executors 
 L". One of the 
 aimrt oeilain 
 le trusts of the 
 ils)p;ii(l liy him 
 of the iniants, 
 r of the haiiie, 
 e liniiilK of the 
 i ]i\ tlie net of 
 
 liaiiils of tlie 
 ■tsof the Mill, 
 (i Hiiliie to the 
 1 jiroiierly re- 
 le fiiiiil never 
 so as to render 
 
 uiiioiiiit, yet, 
 liian wan jier- 
 ao paid t(p her 
 Heet was iiro- 
 imt the surety 
 
 Ihdbniith V. 
 
 M el al, 31 C. 
 
 F SUKKTY. 
 
 il several pro- 
 ities for liim, 
 aflirniiiig the 
 
 judKiiieiit of tlic f'ouuty Court, that in ilefaiilt | 
 of piiyiiient at niutiirity their liaiiility to pay | 
 Itucaiiiu iilmolutu ; ami that it waH no defeiiee for 
 them that the |ilaiiitili' neglected to present the 
 note for i>ayiiient, or j;ive notice of nonpaynient 
 by II., ol which they were ignorant, and that 
 hulieviii)^ the note had lieeii paid liy 11., they 
 tiHik no stepH to recover from him, ultlioii>,'h he 
 was altlu to pay, mid before they lieeame aware 
 of such non-payment 11. hud hecoine insolvent, i 
 Wilsoii. V. /liown vl til., (j A. H. 87. j 
 
 After the defendants had become HiiietieH for , 
 a Division Court clerk, n H)iei.'ial iirr.'inKcinint ' 
 was made between tlu^ plaintillH and tiie clerk, 
 under which thi^ latter was to receive no eoHts 
 hut tlisbui'HementH only in all suits eiitereil with 
 him by the plaintillH in which nothing was rea- 
 lised, and he on his part guaranteed that the 
 court hud jurisdietion. This was Hiibsei|iiently 
 varied by giving to the clerk lifty cents in acbli- i 
 tion to the disbursements in siieli suits. I'erio- 
 dicul stateineiits were made from time to time 
 according to the agreement, and a chei|iie given 
 for the balance thus shewn. It was afterwanls 
 discovered that the st.itements were incorrect, 
 and that moneys collected by the clerk had not 
 betn j)aid over :- -Held, that the special arrange- 
 ineut made with the cUik discharged the sure 
 ties :— Held, also, that the periodical statements 
 were not conclusive as against the plaiiitills. 
 Victoria Mulutil I'in- /im. i'u. v. JJuritlfuii il id., 
 3 0. K., C. I'. \). 378. 
 
 S. had been treasurer of a niunieiiial corpora- 
 tion, and a bond which he had given having been 
 mislaid, the council being under the impression 
 that liehad given no security ,re(|uired him tofiir- 
 iiish it. The council, having examined his books, 
 concluded that they were in his debt, asthe books 
 shewed, and the reeve believing this was the 
 case represented to the defendant that S., defen- 
 dant's son, "vasuU right on the books." he- 
 fendant on this signed a bond as surety for the 
 due ]H;rformaiice by S. of his duties which he 
 saiil he would not have done but for the reeve's 
 statement. The reeve also said tliatif defendant 
 did not go his surety S. would lose his position. 
 Afterwards, as S. had been drinking, defendant 
 wrote to the <'ouncil desiring to have his liond 
 annulled, but he withdrew this letter at the re- 
 quest of S, After S. had been dismissed, and 
 the delieiency in his accounts discovered, defen- 
 dant said he would pay whatever had occurred 
 since he signed the boml. Upon the tiist trial 
 no plea of fraud was put in, and a new trial was 
 cranted on allidavits not raising this defence ; 
 but defendant gave notice that he would at the j 
 trial move to add such a plea. The Icarnetl I 
 judge at the trial refused the ap]ilication, ludding ' 
 that the plea could not be supported on this evi- | 
 deuce, but he found that the bond was given | 
 upon the assumption aiid statement that the 
 treasurer was not then in arrear : — Held, 
 Hagarty, ('. .1., diss., that the plea sliouhl have 
 been added, and that defendant was entitled to 
 a verdict iiiion it. I'er Hagarty, (.'. .(., there 
 was no false statement, and no fraud, and there- 
 fore the plea was not sustained. The Curimfti- 
 Hun of lilt Villoi/e of <Jaiianu(/Hi: v. Sluiiih'ii, 1 O. 
 
 1!., y. H. 1). I.' 
 
 See ('iiiiiiiliiiii liiiiik ttf Cuinnn >•<•)■ v. Ctrrcn flal.< 
 45 Q. IJ, 81, \>. Hi; liarber v. Morton, 7 A. K- 
 114, p. 82. 
 
 2. (I'ii'inij Time to Princifial. 
 
 ]\. k M. were carrying on btisinens in co-part- 
 ners'ni|i, and H. becoming clissatislied with the 
 inanner in whieli the liMsiiiess was coiulueteil, 
 a dissolution was agreed iipnii, in (Ictuber, 187'!, 
 with the kiiowledgi; and a|ipi'ov,il of the plaintiU's, 
 one of them having assisted in anaiiging it, 11. 
 retiring anil assigning to M. his interest in tiiu 
 parfiiirsbipasMits, in coiisiileralinh of I^I,3.S'2, for 
 which M. gave his promissory notes at three, 
 six, nine, and twelve months, and ImiuihI himself 
 to pay all the debts of the co-|)artiiership. 
 M. continued to carry on tlie business, and in 
 doing so had several transaetinns with the plain- 
 till's, from whom he continued to receive goods on 
 credit, giving proiuisMory i.otes foi' the price as 
 well as to cover the linn's indelitediiess, during 
 whieli time the plaintiU's rendered periodical 
 statements to M., ignoring apparently the exist- 
 ence of il., in which the lialnlities of the film 
 anil M. were embraced ; although expressed " .M. 
 ami II. I, iaiiility," giving the items, and "J.M. 
 Liability," also detailing the items. M., by 
 means of contra accounts against il., had re- 
 iliieed the latter's claim to about .^-lUO. Ill 
 November or December, I.S7(>, the plaintiU's a])- 
 jilieil to II, to renew the )>artiiership notes, bui, 
 this he declined to do on the ground tliat he was 
 not liable, notwithstaiiiling which the plaintiU's 
 continnetl to deal with M, until he became iiisnl- 
 ' vent in .January, \Ss{), when tiny instituted 
 jiroecediiigs against both partners to ncovertheir 
 [claim: — Held, I'atterson, J. A., dissenting, re- 
 versing the tiniling of Cameron, <l. (31 (/.!'. 430), 
 that tlie efl'ect of the lUaliiigs betwi en H. and 
 •M. w;is not to constitute 11. a surety for M., 
 and that he and .M. remained liable to the plain- 
 tills for the partnership debts. liirhtl et al. v. 
 MiUuiri: it III., 7 A. It. C>'6. 
 
 ! A married woman signed a note in blank, and 
 gave it to her son "to lie used as he liked." Ho 
 Idled it up for ;?l, !'(!(», signed it, and transferred 
 it to the plaintitl', who was imt made aware of 
 the circiiinstaiiees uihIim' which it li:iil been sign- 
 ed. It was renewed twice without the mariied 
 woman's name, the original nnte reiiiaining in 
 the idaintill's hands;- Held, reversing the judg- 
 ineiitof the court below, that the mariied woiiian 
 was a surety in respect of the note for her son ; 
 and that the authority to the son as to using the 
 note did not extend to keeping it alloat after 
 maturity without her knowledge; and that she 
 had been discharged by the extension of the time 
 of paynient. Dtrnniiiij v. JirdWiiltK et al., 8 A. 
 |{. 35.J. 
 
 I IV. Rkiiits of SruETY. 
 
 I 1. AMiijument of Securitiei. 
 
 The M. uianufacturing company, in the usual 
 
 course of their business, look from their agents, 
 
 ; notes for machines supplied to them, which were 
 
 ' transferred by the ^1. company as etdlatcral 
 
 ' security to a bank where they had a line of 
 
 credit. The agreement with the agents was that 
 
 upon their sui)stituting their customers' notes 
 
 , for their own, they were entitled to the delivery 
 
 I up of the latter. The defendant, who was the 
 
 agent, had given notes for inachines aii|)plicd 
 
 I him, which were handed to the bank !iy the 
 
 j company. He afterwards transferred to the 
 
 company a large number uf his uustuniera' notes 
 
(,,)r( 
 
 PRINCirAI. AND HITIIKTY. 
 
 f.r.o 
 
 r 
 
 r: 
 
 
 Till' liiiik iiiiuwit!('r I'liiclin;; hihiic of tlio ilrfcnd 
 aiit'ii iiotiH (iviidiic, (li'iii inilccl lli.it. tlii'y hIioiiIiI 
 lie r(|iliiic .1 liy Iii'hIi |iii>rr, iiinl tlm I'lmipHiiy 
 tli.'ii ii|i|ilii'il tip llm (Ufi'iiiliiiit, wli" jfiivii till' 
 imti'M Niii'il (III witliiiiit f,'rttiii)j; nn iiiljiiHtiiiciit, ol 
 iii.'ciiiiiifM lii'l Weill tlinii, tliiiii(<li tliiTi^ w;i« lint 
 ,'1 Hiii.ill li:il.iiirc iliu^ 111 tliu f!(iiiiii,'iiiy ; mill tlicKc 
 iiiiti'U well' tr.iiiMl'iTrcil til till' li.iiik (iml the olil 
 iKitcM f<iv(!ii ii|i. 'I'll!' M. cnriiiiiiiiy K"t i'ltn ililli 
 I'liltiis, .iiiil till' li:i!ik Hiicil h., tiicir juTsiiii'iit, 
 Hiiil ;iiiiitlirr wliii, jiiiiitly witli tlii' M. i'iiiii|iriny, 
 
 liuil xii.ir.iiit 1 till! (!iiiii]irmy'n n unit tn tlit- 
 
 extent 111' .S'O.'MM'. l*-i i" omIi'I" t<> I'liitect liiiii- 
 Heir, resi),'iieil the Jire.siiielii'y, mul uiiilijl'tiioU to 
 JillV iill'tlie eiiiii|i;iiiy's iieleliteiliiess tn tin.' liiiiik, 
 mill t.'ike III! tlieir HcenritieH. A reHnliitiiui of 
 the liiiiU'il \r,is |iH>sei| ii|i|ii'(iviii;^ nf this, ami tlie 
 M. eiiiiiiiiiiy ilireeti'il tilt) li.ink tn tiMiisfer tn \l. 
 the eiiiii{i;iiiy's seeiiiitiesiiii |i.iyineiit. I>. n|i|ilii'il 
 tn till! |il;iiiitiir I'm' the imiMey, iiml he lulviiiieeil 
 the rei|lliHite illllnlllit, ll.'ivili^ (ilil.'iilieil the H.'Ulltl 
 liy |ileil>,'lli^ NtiK k lillil iitlli T Hceiirities tn II Inail 
 ciiiii|i.'iiiy, Hiiil tcink all the iinte.i lu'M liy tho 
 liallk tn lliihl I'nr ciilli.'etinll tn )),iy l:X|iellHL'.s, 
 repay the ailvaiu'e.s, |iiy their imlehteiliiuas tn 
 the loan eiiiii|iaiiy, ami tn a'V'niiiit tn IJ. The 
 lioteH Hiied nil wen; aimiii^nt tlinse tr.uiaferi'oil tn 
 the ]ilaintill', w lin tnnk llieiii without nntii^o of 
 their ehaiMuter, nr tlu^ Htate nt the accniiiit he- 
 tweeii the ilel'eiiilalit ami the M, eiiiii|iaiiv : - 
 Itelil, that he Htnnil in the p! .< e nf the liaiik, ami 
 sueceuileil tnall itH ri^;htK, ami that the ilefeinlaiit 
 VaH lialile tn the full ainninit nf his nntcH in thu 
 lilaiiitifl 'shamls. Coviih v. l)iu,Uttl<; Aft^l.W. 3!tS. 
 
 Tho pliiintllT sold 21 ftlmrcs in n vosaul to B. & 
 
 Cn.. wlin, not lieiii^; alile tn )iay cash, jimoiireil 
 (>. tn make a mite in the plaiiitiir'H I'avniir, which 
 was emlnrseil hy him ami I!. In nnlertn Hceiire 
 ]liiii.se1f, O. tnnk a liill nf Hale tn hinl^sl'lf of the 
 Hhares. The iiliiiitill' iliMeniiiiteii a imte nt tin: 
 liank, ami after several renewals was niili;,'eil to 
 jiay it. ill an inteiphailer issue between the 
 plaintiU'aml tin; exeeutinii ereilitnr of ()., to try 
 the rij,'lit tn the shares:- Helil, Arninnr, .F., ilis- 
 aentin^', that the ell'eet nf this arraii;,'eineiit, whieh 
 is iiinre fully statiMl in the rejiort nf the ease, was 
 prnperly lielil at the trial to he to make H. the 
 prin<'i]ial ilelitnr to the liaiik for the aniniint of 
 the lint", ami the ]ilaintill' ami (>. his co sureties 
 therefnr ; anil upmi jiayineiit thereof, that tho 
 jilaintiti' was <'i|uitalily (Mititleil to the 24 shares 
 liehl liy (I., his en-surety, as security against his 
 liahility on the note : - (.tmero. whether inter- 
 pleader is a proper remedy in siieli a rase, and 
 M'hether the shares enuld he soi/ed and sold hy 
 the slieritr. I'er Hagirty, (". .1. Some proceed- 
 ing to which <) & 15. were parties, in which the 
 title to the shares could lie cleari'd up, would he 
 a hetter reinedy. I'er Armour, tl. 'I'lie (|ucstion 
 raised enuld nnt he properly adjudicated upon 
 without (>. Hi B. lu'ing partit.'s. Tlie plaintiff and 
 <>. were not sureties, Imt the plaintitf w.as the 
 creditor, IV the iirimMjial delitor, and <>. the 
 surety; and on default the plaintitl' was entitled 
 to compel (). to realize the security which he 
 held, and apply it towards payment of the dcht. 
 Trei-ke v. JiurkHt, 1 O. K., Q. B. \). 80. 
 
 V. CONTRIIII'TION AMONO Co-SrUETIK.'<. 
 
 A loan and savings society appointed <J. tlieir 
 treasurer, and the phiintiti's and defendant by 
 
 two separate linmls Ix'came Huretii's for the dno 
 iliHchaine nf the duties nf such nlliecr. My Si'vcial 
 Acts of the legislature the sneiety was incnrpora- 
 tdd, and its |iowcrs mitcrially iiicreased, and (1. 
 appointed its manager, the duties of which it wan 
 shewn were similar tnthnscnf tnasurcr, tin; name 
 of manager being given simiily as one of hniionr, 
 and did not involve any ailditinnal diitieH, li. 
 mailedi;fauU in his otlice,anil a suit was iimtitti- 
 ted by the society against all the sureties, which 
 was cniiiprniiiisiil by the plaintills paying alHiiit 
 one-half nf the sum claimed by the sneiety : 
 Held, that tin; ilefemlant was bniind tncontrihnto 
 his sliare nf the ninney sn paid, and that the 
 change in the name of the olhicr airnrded no ilc 
 fence to the claim of the plaintills : Held, also, 
 that in such a case the entries of < i, in thu books 
 of the society wcih; not evidence against the sure- 
 ties during tile lifetime of ( i. Miirrui/ v. (I'iIimhi, 
 'JSChy. I--'. 
 
 See SmdU v. ithldrl ,t ai, 'M (!. 1'. 'Mli, p. 8'.'. 
 
 VI. ruOrr.KDINdS A(!\INST SlKKTV. 
 
 1 . /'Itiiilinii. 
 
 One M., and thu defendants as his sureties, 
 executed a bond conditiniied fnr the gnnd ho- 
 haviniir of M., a clerk nf the plaintills' at Mon- 
 treal. The bond was excciit<;il at Hamilton by 
 the defemlants who were resident there. M. 
 made default at Montri;al and abscniided. I'ni- 
 ceedings were taken against the sureties, with- 
 out joining M : Held, (aflirniing the order of 
 I'roiidfoot, V. ('.,) that the ]ilaintill's couh'i not 
 )irocceil against the sureties alone, if tlu;y re- 
 ijiiired tin; joiiiil(;r of tin; principal in order that 
 they might have tli»;ir remedy over against him. 
 I I'er Spragge, ('. Though the breach nceurrcd in 
 Montreal, and there was no cause; >f .action till 
 default, yet there was a potential eipiity in the 
 I defendants, coeval with tin; (;xeciition of the 
 ( bnnil, which became a right of suit on the «le- 
 I fault of M. ; and tht;re was also an implied con- 
 , tract on tin; part of M., upon execution nf the 
 bond, to re])ay to his sureties any money that 
 they n.ight have tn pay by reasnn of his default. 
 ' hjjriiiiiiiii' liiiiik v, S/iriinjcr — The Same J'ltiiiUifn 
 V. /{unir.<, '-'!) ( 'hy. '270. 
 
 See T/ii' ('or/iiirdHiin nf till' Villaije o/ O'tniano- 
 qtic V. Sliimlcn, 1 O. Ji. 1, p. (5r)3. 
 
 2. Other Cagf.1. 
 
 A mortgagee proceeded on the same day to 
 foreclose the ]iroperty of thu mortgagor and his 
 sureties by several bills upon their res[iectivc 
 mortgages, and to sue at law in diirerent actions 
 the same parties on notes held by the plaintilfs, 
 to which tho mortgages were collateral : — Hold, 
 that only one suit in etjuity was necessary as all 
 parties might have been brought before thu court 
 therein, all remedies given which might have l>een 
 obtained at law, and all rights more conveniently 
 adjusted between thu parties in one than in sev- 
 eral suits ; and tho court would not be deterred 
 from granting relief by the oircurastanco of a 
 decreo l)eing uoinplieatod. Merchants Bank v. 
 Sinirkcs, 28 C;hy. 108. 
 
 In an action on a bond against two anrctien, 
 the defendant It. set up thu defence <anil gave 
 
fif.O 
 
 H for the «lno 
 r. Hy Hcvii.il 
 \;in iii('ipr|Mini- 
 
 MI'll, iiiicl (i, 
 
 « liii'h it wa» 
 triT, tlit^ iiiiirio 
 III' i>f li<iii(iiir, 
 liitum. (i. 
 t wii« iiiHtit.ii- 
 nrticH, wliii'li 
 )tiiyiiit,' alidut 
 II' Miicii'ty : 
 
 tciciiiitrilintt! 
 mill that till' 
 rmclcil 11(1 lie 
 llclil, uliii, 
 
 in tliu lidiiki 
 
 lillHt lll(! SUIT- 
 
 \iij V. (/ih.ioii, 
 . :«73, p. 8J. 
 
 Si'iiiyrY. 
 
 liis sureties, 
 till' yiiiiil III'- 
 ititl's' (it Miiii- 
 ll.iiiiiltiiii liy 
 it thcro. M. 
 'oiiili'il. I'm- 
 iiiri'tii'H, witli- 
 flii' (irilcr (if 
 ill's I'diilii nut 
 , if tluiy re- 
 in iiriier that 
 I' against liiin, 
 uli (iccnrred in 
 if at'tiiin till 
 eipiity in the 
 'lit inn of the 
 lit on tliP <le- 
 iiii]iliuil eon- 
 ention of the 
 y money that 
 >f his ilefaiilt. 
 uiiic J'/iiiiilitl's 
 
 jc of (Janano- 
 
 aanio ilay to 
 figor and his 
 ir respeetivL' 
 furunt aetions 
 he plaiiitilFs, 
 eral : -Ilehl, 
 cHssary as all 
 fort! the court 
 i^lit have In-'cn 
 conveniently 
 ! than in aev- 
 t lie (leterreil 
 nstance of a 
 Ills Hank v. 
 
 two aiiretieK, 
 ice and gave 
 
 cr.7 
 
 PRrVY COUNCIL. 
 
 C58 
 
 oviilenie that his si ;iiiitlire to thi'liiiiiil linl liecii 
 (ilitiiniil liy fiallil. Till' eviilenei! of IiIk en iK- 
 femlaiit, ('., vv.i.'H tneli'i-e.l for the piiripnsi' of 
 Hlii'wiiin 111 il ('.'■■< «i;;ii.'itiini to the ImiihI Ii hI also 
 been HO nipt.iilieil, wllii'h W.'IH rejected as ili;iil 
 niissihle : IJelij, Hint the evideliee .if {'. Uiis 
 niliiiissilile ..s shewing ;i framl pr.etisi'd mi him, 
 with n.'s|n'i't til the Maine iiHtriimeiil liy the same 
 iiersiin, and at or alxiiit. the h:iiii>' time as the 
 alle;;Kd fiMtid on I!., and lieeailHo it was ei.nflr- 
 niitnryoi H "h c'videneo ; and a new tiiil was 
 or'lered. Per Aiiiiniir, .1., when a m iterial fai't 
 is alle^i'il ill a jileadiiiL.', and the )ileailiii){ of the 
 (i|i|iiisite |iirty in Mileiit with respeet thereto, the 
 faet uiiist. Iii^ I'diiside.reil aH ill issue ; therifnre it 
 WIS eiiiii|i 'tent for'', to deny the exeontinli of 
 the lioiid, his |ileadiii(^ not expressly adiiiittillj,' 
 it. Till W'l/'-rlo'i Mi'iiiil Ins. Co. v. ll'ihiiLum 
 ft ,il, -lit. K., (,)- 15. I». 'Jit."). 
 
 See Clhiiiili'iliiiii y. S'ol'lli^,'2H\CU\■. 4(>t. p. 170, 
 
 Corhruiir V. liiiiii-iiri- ,1 II'., ;t (I. i;. •Id-', p. m. 
 
 N'll. ,Misci-.i.i.\Ni-;iirs CV\si;s. 
 
 When' sim^tics for a delil ;;ave to the creditor 
 a second iiioitg.inc (III land as addition il s'ciirity, 
 and foreclcpHure pniecediii;,'s are tikeii liy the liist, 
 nioitt,'iL,'ee : Meld, that tie iM'cditor, on licini,' 
 notilii'd lliereul, sliniild either make hiiiis 'If a 
 party to the suit iiid prove his claim, or notify 
 the Hliretics to elllilile tlu'Ill to ))rnve if they so 
 (le-iired ; liiit, -Held, that the cvi Icnco in this 
 ease shewed that the siii'i'ties hail notice, at all 
 events some tlirne mniltlis lielore tlie day of re- 
 (Imiiption. which was snllicient : -Meld, also, that 
 tile fai't oi two co-delitors elian^inj^ their position 
 8(1 as to 111 ike (ine of them as lietweim theiiHclves 
 a surety, would not all'eet the creditor without 
 his consent. Junix v. Ditnhiir et al./A'H). V. l.'Ki. 
 
 One of the defendants herein set up as a defence 
 th:it he wis surety for part of the claim and prin- 
 cipal delitir as to the re-iidiie, and as to the latter 
 admitted his lialiility, Imt idaimed that lie could 
 only he called upon to pay it on the execution of 
 a propiir release liy the pUiiititl' of all lialiility 
 against him in respect of the said claim :— Held, 
 clearly no defenoe. III. 
 
 Wlicn a claim ai^ainst an est ite of a deceased 
 person is one arising out of a contract of surety- 
 ship, tin; ciiiirt will not. unless l>y consent of all 
 parties, mikeaii adiiiiiiistratioii decree ex(!ept on 
 a hill tiled. /.'(■ ( •<ilti,ii FUhir v. CoUdii, 8 I'. K. 
 542. ^-l^oudfoot. ..- 
 
 Tiie ]»riiicipal and surety lieirii; hern the ])Iain- 
 tilFand defend iiit respectively, Ite Colton, S I'.li. 
 542, which ilecides tint in a case of |)rineipal and 
 surety a sunim iry application to administer under 
 G. (). Cliv. tiSS is improper, wis held not to 
 apply. AV .-Mhin -I'ucnck v. Allmi, !) I'. II. i.'77. 
 — Full court. 
 
 See lliil/itn v. Fidnral Bank, I". !{. HtiS, p. (59. 
 
 Sir M uii;\s Ciiiti'U.s. 
 
 l'UIVrLK(iKI)»'(».MMrNlt!.\TI()N.S. 
 
 ,SVe Dr.HKMMIoN Mvi HKSTI'.. 
 
 IM'.IVY fOl'VCll,. 
 
 1. UoNI) AM' SKi'l'ICirV, (mH. 
 II. .Ai'i'i.ifATriiN Til, Kuii Nksv 'Ikiai., 0."iS. 
 
 III. AlTKAI.S Til, li.")S. 
 
 PRINTING. 
 
 Policies of Insitrance. — SVe In.si'rance I., C, 
 p. 351. 
 
 42 
 
 I. lioNii AMI Si;i riiirv. 
 
 Oil a motion to diKiUow ii liond tiled hy the 
 dcfcinlints (appellants) pendini,'an appeal t. tho 
 I'rivy ('oniicil, which was in the I'm in i^iven in 
 Itnle .'K;, O. J. Act, with some further recitals, 
 it w.is olijected tint the condllioii of the olilii,'a- 
 tion oui,dit to read "do and shall eirectually 
 prosecute such appe il, and piv." (Vc, instead of 
 "orpiy," as 1,'iven ill the fm'in ; and also that 
 the ciindilion should he to pay " wh it h id heen 
 I'oilii Idileliy theciiiirt app'iled from," ilist(ra(lof 
 •'such costs and d iin v:;es is shall he aw irded;" — 
 Meld, tint "or" was the enrrect word to use, 
 aii'l tint "elTectiially pnneciite" meant "suc- 
 cessfully prosecute,'' iiiit the li Hid Was di-iallowed 
 on the "second olijeetion, it lieiii;; h'ld tint the 
 proper condition must lie drawn liised upon the 
 luiL;iia.;e in It. S. O. c. :<S, s. 27. siili-s. 4. hi 
 /I'l-iiiili'iinil Hrhhii C'l. V. ('iinnlii Soiillii.i-n R. T. 
 Co., y I'. It. -J.'iO. Ihuton. 
 
 Sen Vlllvn* Iii.i. Co, v. Pm-ioin i'/. nl, 32 C. 
 I'. 4D2, p. IT.-). 
 
 II. .\i'Pi,ic\Tio\ 111, nut Ni:w TutM.. 
 
 Althoii'.,di till! I'rivv ("ouncil hive the rij,dit, if 
 thisy think tit, to order a n 'W tria' on any ;,'r(iuiid, 
 that piwiM- will not lie exercise 1 m n-ely where 
 the verdict is not alto,'('ther satisfact iry, hut 
 (inly where tho evidence so strou;^'ly preponder- 
 .'ites a'^ainst it as to lea'l to the conclusion that 
 the jury hive either willullv disi'„'i,'irdi!d the 
 lividi'iiee, or failed to understand or appreciate 
 it. Till' <\>iinorlii-iil ^Tiihiiif l/il> lii^. Cii. of Hart- 
 f'liril V. Moofi, -App. <."iis- tilt. 
 
 III. AlTEALS TO. 
 
 Their lordships will not advis(^ ITer Majesty 
 to admit an .appeal from thi^ .Suprenin Court of 
 tlie Dominion save where the ease is of j^ravity, 
 involving,' matter of imldio interest, or some im- 
 portant (|iiestion of law, or aU'ectiii'.; property of 
 oonsidi^ralile amount, or where the case is other- 
 wise of siiine puhlic importance, or of a very suh- 
 Htantial character. J'riiice v. Oaijmn, 8 App 
 Cas. 103. 
 
 Petition for special leave to appeal refuse I th'S 
 case depending on a disputed niittcr of fact 
 whether there had hn-ii ii j;ift or sale of certAin 
 goods of tho value of Cl,03l). Ih. 
 
659 
 
 PUBLIC SCHOOLS. 
 
 C60 
 
 r 
 c> 
 
 
 J.. 
 
 Petition for HjiecinI luavo to appoiil in a case 
 involving; only in issue of fact refuaoii. fuiKiila 
 Vtiilnd li. ]y. Co. V. Murtoy, 8 Ajip. C'as. 574. 
 
 f^uch petition must state fully liut succinctly 
 the P'OUIkIs upon which it is hascd ; the i-ecord 
 not ocinj; hcfori- tluir lordships until forwuidid 
 liy the piojicr authovitii'S. ih. 
 
 See I'uUuv. Laiijloix, .") App. Cus. 11"), p. 117. 
 
 PROCHEIN AMY. 
 
 Sve HUSIIANU AXI) WlFK. 
 
 PRODUCTiON OF DOCUMENTS. 
 See EviDENCK. 
 
 rUIJLIC HEALTH. 
 See MuNim-'L C'oki'ohation.s. 
 
 PUBLIC OFFK'EHS. 
 See Office— Tost (»i ike. 
 
 PROHIBITION. 
 
 To JuDfiKs OF Division C(unT.s—.9('(' Division I 
 CoriiTs. ! 
 
 Held, that the prosecutor of a coniphiint can- 
 not njijical from tliu order of a niiij;iKtnitu dis- 
 miiisinf; the coinplMint, as l>y 1{. .S. (». c. 74, s. 4, 
 the ])ractici' of it| iicallir^ in such a case isat^sin. 
 ilate<l to tiiat under lioni. .Stat. 1(3 \'ict. c. 47, 
 nhich c< iiliiies the right of ajiijcid to the defen- 
 dant. A prohiliition was therefore ordered, liut 
 withou^ costs, as the ohjection to the juiisdic- 
 tion had not lucn taken in the court lielow. In 
 re Mur/ihy v. Curuifli, 8 V. \{. 4'.»0. -Osier. 
 
 'l"he affidavit on which to <d)tain an attaching 
 order njay he iiia<le hy the attorney of the judg- 
 ment t ri<litor, or hy a partner of the attorney. 
 Senihlc. that prfict edings on such order ctuld not 
 be ]:rohinit((l c i. the giound that it was lound- 
 cd on ). defective utlidavit, that being a mere 
 niattei of pMictice. hi n Siilo v. Jltiibonl, 8 
 P. R. 44,'i.- Ot^le . 
 
 Per Kitehie, C. J., and Strong and Fournicr, 
 jj., that a v\rit of jirohihitiou ii-sued under Art. 
 1031, as was the wiit issued in thib case, will oidy 
 lie to nn initrior (.riluiiul and not to a uuiiiicipal 
 officer. Coiiit a', v. Moryan, 7 S. C. I{. 1. 
 
 See In re }\ihc» v. lHiC 'ire, 2 O. E. 118, p. 
 117 ; l'<- O'Jiriot, 3 0. }i. S'2fi, p. L't.7 ; ^'>l,ld v. 
 torklhduk it uL, 4 O. 1{. 317, p. I(i8. 
 
 PROMISSORY NOTES. 
 See Bills of Exi iianci; am> Phomipsorv Notes. 
 
 PROTEST. 
 Of Bilks on Nor is SVc En. is op Exciianoe 
 
 AND I'llOMiSi^OKY NoTKS, 
 
 PROVINCIAL LAND SURVEYOR. 
 See SlMVKY. 
 
 PUBLIC SCHOOLS. 
 I. TursTi'Ks. 
 
 1, JjlsiilHllijiiillintl nj\ (l(!0. 
 
 2. Ekctlon of, <)t)0. 
 
 II. Sechk.taky-Tkkasi iii:i! am> iii.s Suhety, 
 Giil. 
 
 III. CoNTHAns wiTiiTiMsri.i.s, (;(i2. 
 
 IV. DlSSOMTIO.N OK Si IIOOI. Skci IONS, (1(12. 
 
 V. School Site.-.. 
 
 1. Ji'ijiiisitiiiii til .]tiii'!''ij>iil (.'tjuiie'iU for 
 
 Finiilx, (',{','2. 
 
 2. ^,,<o..,, (</; (ill.'}. 
 
 VI. Loans kou St iiool I'ruro.-i.s, ()(i3. 
 VII. Ilniii '>(iiooi, IhsiiiK rs, i'M'A. 
 
 VIII. Mi.';. EI.LANKOCS (A.SK.-i, 005. 
 
 I. Trusiees. 
 
 I. Dixqnuiijifitthin of. 
 
 Held, Osier, J., diaditinjir, on a special case 
 stated for the ojiinion ol tl.e Cnuit tit Chancery, 
 anil traiisferretl to thii> court, that the lact ot the 
 puhlic schotil Ltjartl tit the city ol 'I'latjiito en- 
 teiing into an agrtimmt \Mtli and purchasing 
 their stationeiy iintl st liccl .supplies tioin a puh- 
 lishing ctiliipany, anil luiving iilitiiiiini giis Imm 
 a gas couipany, anil iii!^.;ietl .hiir | iii]ierty in 
 ) certain insu- .nee mni] iinie.^, nl whicli said coin- 
 , Jinnies the plaintill was a slmrilinliler, did not 
 diM|u;dify him fiom actirg as a tru.--tei! ol the 
 school hoaril, or lentlei- his .seat vacant, under 44 
 Met. c. .'iO, s. 10, O. Lie v. Iln J'(,l,'i<: .SV/mai 
 liuorU iij'thr City oj Tomiili), ;i2 C. I'. 78. 
 
 j (i>ui!re. per Osier, .1., whether thi^ case could 
 
 properly he entertiiinttl- no fact luing disclosed 
 
 liy which jurinliction coultl he exticisetl under 
 
 .the Alt relating to i>iantlanuis and injunction, 
 
 ! R. .S. O. c. .VJ, s. 'M), no wii nrtul act having 1 ecu 
 
 ' actually dine hy the schi ol Imard, hut merely an 
 
 injuiy to theplaintitl 's rights threictilictl, it being 
 
 allegetl that the boaiil inttndcit to tieelare the 
 
 seat vacant. /'/. 
 
 2. Klectioii of. 
 
 Where certain persons were elected school 
 tiustecs, anil, at a meeting of the board held 
 subtci|Ut ntly to the i lectimi, wt re tieclared duly 
 elected, but, procciilings having been meanwhile 
 commencetl to iiuestion the valiility of the elec- 
 tion, at a subsetiueiit meeting of tl'.e hoartl, t.iey 
 uctiuiisced in the conclusiiiii of the bcartl to hold 
 a new election, and bicame candidates again, and 
 wuvasseil us such, until the twenty days allowed 
 
 >i 
 
 1*1 
 
 ^. > 
 
Gca 
 
 G6I 
 
 PUBLIC SCHOOLS. 
 
 GGi 
 
 ONS. 
 
 r)iii.sSL-i;ETV, 
 
 ■iioNs, 0(12. 
 ' (.'mnic'iii for 
 
 Ks, GG3. 
 
 ft special case 
 : (il CluiiKHiy, 
 till' iac't 1)1 the 
 I 'rcionto c'li- 
 ii<l j'UrcliaKing 
 H liciii a Jill)- 
 :ilK<i giis linm 
 ir ) MPjitity in 
 hitli siiiil cdiu- 
 iliUr, dill not 
 tlll.--tun ot the 
 Li'tiit, iiiulei' 44 
 
 . V. 78. 
 
 lie cMse cdiild 
 t iiif; iliscli aed 
 titistd under 
 id iiijiint'tiiiti, 
 ■t liiivjiij; 1 ocn 
 I'lit nienly an 
 tciii'd, it Icing 
 lo declare the 
 
 elected srliool 
 ic liuard held 
 declared iluly 
 en niiaiiwhile 
 y of the elec- 
 c hoard, tiiey 
 I.cukI to hold 
 tcs again, and 
 ■ days allowed 
 
 for disputing the first election liod olapacd (the 
 proceedings formerly commenced for that pur- 
 poao having been nieanwliilu dropped), and were 
 not elected at the Hucond election : — Hehlj they 
 could not afterwards maintain a suit to have it 
 declaretl they were the duly elected trustees, 
 Foster H al. v. Stokes et al., 2 O. It., Chy. D. 5'JO. 
 
 II. Secretary-Trkasl'uer and his .Surety. 
 
 One T., who acted in the capacity of secretary- 
 treasurer of the plaintiffs, who had not lieeii ap- 
 l>oiiited in writiuL', and ha<l not given security 
 as re(plired hy tin; statute in that hehalf, ali- 
 sconded wi*^li certain moneys which had been 
 received b, him, as such secretary-treasurer, fnmi 
 the defend! iits. The phiiutiffs had recogni/ed 
 T. as tliei; secretary-treasurer by entrusting him 
 with the custody of their books and paiiers, by 
 allowing him to receive moneys for them, by 
 auditing' his accounts an<l receiving anil appro- 
 ving <if the auditor's reports. lleM, that i{. S. 
 0. e. '.'04, 8. 'J!», which provides that, in the 
 case of a rural sclioid section corporation, the 
 resolution, action or iiroceeding of at least two 
 of till! trustees shall be necessiiry in order law- 
 fully to bind such corporation, does not apply to 
 acts of dutj' of the secretarj -ti'casurer ; iinil that 
 payment by the nmiiicipality of school nioni'ys 
 toT. was binding oti the trustees: — Held, also, 
 that if a person acts noti^riously as the olli- 
 cer of a corporation, and is recognized by it 
 as such oflicer, a regular aitimintnieut will bo 
 presumed, and his acts will Ijinil the corporation, 
 although no written proof is, or can lie. adduced 
 of his appointment. Sr/iinil Tnislfis /if Town- 
 Mp of lliiinilloii V. Slit, 'J8 Cliy.40> 
 
 A munici]>al cor]ioration passed a bylaw for 
 taising a loan to liipiidate a debt to be incurred 
 in enlarging the Hchool-liouse in a pulilic school 
 section, and providing for the issue of debenture^ 
 for that jiurpose, and for levying a spetMal rate 
 to puy the interest thereon, and to create a sink- 
 ing lund for payment of the [irinciiial ; and the 
 municipal authorities paid the n'.oueys uo raised 
 by till' said special rate to the secretary-treasurer 
 01 the school board of the said section. A., the 
 secretary -treasurer of the schoid board, and b., 
 as hill su'-ety, gave a bond of ollice, reciting that 
 A. had been ap|ioiiiteil such secretary-treasurer, 
 and th'it "it was rei|uired that security slioulii be 
 given for the due and taithfnl perforniance of any 
 and al.' the duties pertailiire; lo such ollice," and 
 conditioned to "correctly and safely keep any 
 and all moneys and papers belonging to the said 
 school board, and to faithfully and honestly de- 
 liver up, account for, and pay over any moneys 
 which at any time thereatter might come into 
 liis hands and possession as such seeretary-treas- 
 suier, "and A. received anil made default in res- 
 jiect of certain moneys improperly paid to him 
 as such seeretary-treasurer :— Held, that the con- 
 dition must be read with reference to the recital, 
 and its scope might be thereby restrictid, and 
 reading the two together H. was not liaiile for 
 the moneys so received liy A.,wliich were out- 
 side the duties pi rtainilig to his otiice, and should 
 have been retained by the munici]ial corporation. 
 H. having been informed by the school boanl 
 that A. was in default, l.utnotin respect of what 
 moneys the default was made, as to which he 
 made no en(|uii ies, and having at the reipiest of 
 the school board given a mortgage tu secure the 
 
 liability which he was informed ho had, by rea- 
 son of much default, incurred as surety under the 
 above bond, and having subsequently ascertained 
 that tho default was partly in res|)ect of moneys 
 .so improperly paid to A. : — Held, that B. was 
 entitled to redeem on payment of the balance 
 only of the moneys for whii;h he was held liable 
 as surety, the mortgage having been execuled 
 under a mistake. Kfttli v. t'tmlun t'alU Uninn 
 School Section cl al., 3 O. K., Chy. \). 11)4. 
 
 in. CoNTU.VCTt. ITH TkISTEE-S. 
 
 In an aci^iou by a school tea -'.er to recover 
 damages as lor a wrongful dismissal, it was shewn 
 that the agreement to eiii[iloy the plaiiitill' was 
 made in writing, under seal and signed by two, 
 of the three scliool trustees, but not at tiie siiiiie 
 time or at any meeting of the trustees called for 
 ; the [)ir use of transacting school business ; — 
 Held, reversing the judgnuiit of the County 
 Court (HaMiniaml), that the agreeineiit was voiii 
 under sec. 1)7 of the I'ublii; Schools Act, which 
 provi Ies that "No act or inocecdiiig ot a scliool 
 corpoi it'on whicii is not adopted at a rcgiii.ir or 
 8[ici lal liicetiiig of tile trustees, sliall he valid or 
 binding on any party ali'ecti:d tiiereby. ' Lnm- 
 liii-n- V. Till' Scliool 'rrii-ili i.> )f Scctiiiii Xo. Tliri''., 
 South L'oijiiijit, 7 A. K. 5Uti. 
 
 See Scliiiol 'J'ni.^lii.-^ uf tin Toi •iifhiji of ILniiil 
 ton V. A'ciV, -'S Chy. 40S, p. GGI. 
 
 1 \'. DissoLurio.N OF .School .Sections. 
 
 On apidication to (piash a bylaw dissol' Ihl; a 
 union scI'Mol sc';tion ; - Held, tiiat the couiicil 
 were not bound to go behind the assessment loll 
 , U- • scertain whether the petition for such disso- 
 1 ,.ion was signed by a majority of the assessed 
 rreeholders and householders, as reipiiied liy .sec. 
 140 of the I'ublic .Schools Act, K. S. (>. c. •J()4. 
 The petition was, that the section might be liis- 
 , solved, " when," it was added, "a new section 
 , may be formed, and a lew lots from sees. 'J, 7, 
 I and 8, might be annexed to eipialize the area w ith 
 I other sjctioiis " : — Held, that this addition, be- 
 ing a mere suggestion, formed no objection. 'I'ho 
 by-law provid .1 that the di.ssolutioii sliould take 
 i ellect "friMi and after," instead oi on "the 1st 
 January, i8hO": — Held, no objection. The by- 
 ; law was passed on the 7th -Vpn!, and liiis motion 
 I was not made until December lollowiiig : — ."^eiii- 
 I ble, tliat this delay, unexplained, wouh' have 
 I been an answer to the application, whicli may 
 I be too late, although within the year tixed by 
 the Act as the extreme limit. In re McAI/iinv 
 I oiiillhi' t'oi-jiiinUiunof the TownMii of Luphcmia, 
 
 46 y. u. lyy. 
 
 V. Scliool. ^SlTl.s. 
 1. llenn'mtion to Munkiintl Coiniriln for Fiiiiih. 
 
 A niuiiicip.ll corporation h.as no discretion in 
 acceptii'g or rejecting the inpiisition of school 
 trustees for fumU for a school site, except by a 
 two-thinis vote. An adverse vote by a smaller 
 majority is a virtual acceiitance, and the reipii- 
 sitioii must theiefuro bo coinpiied with. /iV 
 Uudiil (if L'lhiidtliiii o/" A iiyiuiK uinltln < 'oi'jjviit- 
 lion of the Ton-H of SniMiiee, '2'J Chy. .'il)o. 
 
(;<;;', 
 
 I'UiJLic srnooLs. 
 
 or. I 
 
 
 »:• 
 
 '2. Chanfie of. 
 
 Ill 111, iiUiiiiiin;; tlii^ (U'crcf (if Prfnidfoot, V.C, 
 (•-'(I I liy. .1!l(>) tli.it tlir Idinril ol' uducitioii fcrnii'd 
 liy tli(! iininii (if liiL'li HcliiHil and jiuMic kcIkioI 
 tniMtccH, h.id iici«( r to 'liaiif^c llio site for a 
 K( liool, Mild iiiiicliMNf aiiotlu.r witliiiut a liylaw 
 or I'cviilutioii of tin; county coun.'il, or tliu ap- 
 jiroval of tlK- li('iit(riaiit-(,'o\rrnor in coiiiKjil, and 
 ttiat tlio ]il,untiir wan tiititlrd to simimIic [n.r- 
 forinaiirc of an n;,'i(ciiii'nt liy llif lioard to |iur- 
 fliMsc land for Miiili |iur[iosi'. Mi-'yull v. liuard 
 '-/■ hWiin,/iu„ uf Carhlun I'lac, 5 A. R. I'Jl. 
 
 \'\. F.dANM Fdl; ScIKIdl, I'lnVOHEH. 
 
 It. aii|iiarcil from the allldavit of tlic spcri'tnry 
 and ticasnn r of a hcIiooI acctioii, that nt two 
 nt;iilarly calli-d im'<'tini.'s of the duly ([iialitiod 
 tdcotors of a scliool .section at wliicli a chairni.in 
 MiH a|i|ioiiitcd, |iroiioM.ilH to imrilia.so a Kitf, 
 build a M'liooldioiisi', ami liormw money tliern- 
 fiir, wiic |iiit liy way of motion and carried, 
 u|ioii wliicli a liy law wan |i;iBsed, niitlmri/iii^,' the 
 issue of didieiitures to raise inoiicy for the aliovu 
 |)ur|ioses : llel.l, that under 4'j Viet. e. .'{4, 8. 
 '2'.i, siiliH. ;{, this was a siillliMeiit Hulnnission to 
 and aiijirov.al ol tlu' |iiii|ioh,i| liy the duly ijiiali- 
 (ied school electors ot tlie Hcctiuii, and a rule to 
 (|iiaNh till- liy law w.is discliarp'il. /»i jv -lA- 
 < 'nnnii-/: mill lie- 'I'liii'ii.sli'iji itf ( 'iilclirntor South, AC, 
 y. H. (i.-|. 
 
 VII. IIkjII SciIool, |)|.si|{l(T.s. 
 
 Alter the le|ieal of .'t? Vict, c, '11, s. SS, (»., 
 liy 4(1 \ict. e. Hi, s. IS, siili H. 2, <>., a county 
 council, haviiii; no power to determine the liniitu 
 of lii^jh school disdjcts, ]inss('d a liy law deter- 
 n;iiiini; the same, |{y another liylaw tln\v ri ■ 
 Jicaled it, Jiiid estiililis'iieil new limits : -Held, 
 that such l,ist meii'ioned hy law waR v.ilid 8o fur 
 as it re-.erded the liist liy law, which w > invalid, 
 liut tii,.i. -lie riist of it must lie ip ished. /("<■ 
 C/i.iiih.vrliiin mid (\ir/iiiriilititi ul' thi' ViiUnI 
 ('iiiiutles III' Slnniinnf, /)iiiiil'in. unil (Jli-iirjiirni, 
 45 (,». 1!. 'jtl. 
 
 In 1S70 the townsliip of (Jriiiisliy pnsscil .i liy 
 law attaeliiiii; a eert.iin portion of the township 
 to the villa^'c ot ( iriinsliy for lii>;li hcIiooI pur- 
 Jioscs. In I SSI the Maiiii! oouiicil Hiinil: !y an- 
 iiL'Xcil another jiortion. Correspiiiidin^^ liy laws 
 ^■ere jiassed liy the village of (Iiinisliy. Hy 4!i 
 Vict, V. 'M, (I,, the township was ilivided into 
 two townships (,f North and South Oriinsby, 
 In I.SS2 the eoiincil of tli<! township passed a 
 liy law, on the petition of less than two thirds 
 of the ratepayers, reiiealiiiL; the two former liy- 
 laws ;- Meld, that the two township liy laws, 
 with the Corresponding village liy laws, f<iiuu'd 
 ail !iKi'<'«'iii>iit, pnisuiiit to |{, S,"C)., e. 2(t,'i, h. 
 :UI, as amended liy 4'-' Vict, c, 34, s. It'-', which 
 Cdulc! not l>e rcs(;inded Iiy one of thi^ inunici- 
 palilies without the concurri'iice of the other ; 
 and therefore th.it the Kipe.dinj,' liylaw shoiihl 
 
 1)e p.iHsed only u) the petition of "two thirds of 
 
 the ratcp;iyers. AV Wvlnrtun miil tlif Tuini.^hiii.t 
 
 nfSnitt/, .iii,;y,nih (/liiiishi/, ;{(». i{,, q. m. d. •.",«. 
 
 On the '.'Oth April. 1ST«, the li.in'd of vAwa 
 tioii of the incorpoiatdd village of Morrislmrgh, 
 which «:is foniiidliy the union of the liij,'h 
 sehoid lioHi'd 'if iii(.;h school district No. 4 of tile 
 
 united counties of Stormnnt, Dundas, and fJlen- 
 u'arry, and the pulilie school hoard of tin; incor- 
 porated villa;;e of Morrisliur;,'ii, in which villajjc 
 the liij.Hi school was situate(l, r(^solved that the 
 sum (if j!7,<H)() should he levic^d on lii;4h seliool 
 district .No, 4, to cover the expense of litiilding, 
 furnishiiif,', Ae., for juirposes of the liij^h school : — 
 Jleld, that the joint hoard, and not the hif,'h 
 school hoard, W.IS the ]iroi>er liody to iii.aku tli«! 
 re(juisition 'or the money, umh r 117 Viet, c, 'J7, 
 H. (i,'< ; adopting,; the eoiislriictioii put iipouth.'' 
 section in lie Perth, ;(<»(,». li, 34, win li h ..1 h. a 
 coiiliiiiiecj hy implication liy 4'J Vii t. •■. HI Itr 
 Jiininl of Ei/iiniflmi nf l/i^ Villiiijr «/' .Vmrii- 
 liiiri/i: 'iiii/ t/ic MiimiipalCiirjiiiviiliiin of the Town- 
 Kliiji Kj' tViiir/n.iti'r, 8 A, I{, Iti'J, 
 
 The county couiumI of tho united counties, 
 aetiiif,' under 'M Vict, c 27. s. .'t.S, which j,'ave 
 j power to every county council from time to tiint! 
 j to deterniine the limits of a lii;,di school district 
 I tor each hi^'h school existing in tlie county and 
 I within its inunicip.al jurisdiction, had, on' '.Chd 
 June, IS7r», hy hy-law No, ,'il(i d, dared th.' 
 'di^lriet No. .| should consist of the vill,i«e (■ 
 .Morrishureh and the? townshi|is of Williams 
 liur^'ll and Wim.hester, Sec. 3S was repealed 
 hy 40 Viit. e. Id, H, IS, which, however, de- 
 cl.arcd tli.it ;ill hii,di school districts w Inch existed 
 .It the time of its passiiij; {\\/.. 'Jnd M.iieh, IS77). 
 should continue until the county council should 
 think tit to dis(;oiitiiiue them. ( »ii I'Jth (•.•toiler, 
 IS77. the c iiinty couiieil jiissed liy lii'v No, "i.'il 
 in which, after recitini,', inter ali.i, t i.it it w.is 
 expedient to eonsolid.itc! ail act.s and hy laws of 
 ' those counties which in any w.iy rdateil to liiijli 
 scdiool districts, proceeded in direct terms to ro- 
 ' JH a! si'vcr d !■, 'aws includinj,' No. ."ili;, and then 
 wen' (111 til enact ili.at tlii' nniteil coiiiities should 
 , Im^ ili ided into live districts for liii;}! school pur- 
 poses. No. .( and No. •'■; liciiii,' in the eoiiuty of 
 hiind.iR, and No. 4 ein'iraeiiii,' Willi.imshurKli, 
 \Viu(di(!s»er, and Morrisliiiri,di : - Meld, that 
 altlioiieli the reconstriictio!! of the districts was 
 ultra viies and void, liccause the power to dc- 
 ' terinim t'.i' district.s had ceased at tlic passing 
 I of 40 ^'ict. c. ITi; y,.t the repeal of hy law .'iKi, 
 j heiiiL; vvithin tin; jiowcr to discoiitiniii) the dis- 
 tricts which that st.atute Jireservid, .las v.ilid, 
 ami the township of Winchester had therefore 
 ceased to he part of district No. 4 liefore the re- 
 I solution of April. 1878, was iiasseJ. Ih. 
 
 Tlu^ heard of education, acting; under tho re 
 
 ! solution of April. 1S7S, had on I'.tth .Inly, I87S- 
 
 I niaih? a dein;iii«l upon the township of Winches- 
 
 I ter for its propo.'tioii of the money re(piircd 
 
 Mcfiin- that demand was made another hy-law. 
 
 No. ri'Mt. li.id lieen ]iassed on 22nd ,Iune, iS7.'<, 
 
 i hy tilt! comity council, repe:iliii'4 th it portion of 
 
 ' liy law No ;V>I, wdi h related to liii^h school dire 
 
 triiits for hiu'h .schn.il 'imrposcs in the county of 
 
 I lliindas, and enactiiiLt. inter alia, that district 
 
 i .No. 4 should eiiihraie the villau'cof .Morrishurgh 
 
 'only. This hy law w.is passed after a majority 
 
 of the reeves and deputy reeves of tiw. county of 
 
 iMind.'iH h.iil, under the power given liy 41 Vict, 
 
 I c. IT). re.piest(>d t!ie county I'lHinci' to aliolish 
 
 the districts Nos. 4 and ."<. and to constitute t.h<^ 
 
 ' eoriioratioii of the village of Mornsluirgh high 
 
 school district No. 4, -Held, that this l>y law 
 
 was elFei .'iial to aholish distrii^t No. 4, if that 
 
 I district had continued to exist after the p.i-ssagc 
 
 |i,f hy law No. ,"..-.1. /h. 
 
 
Gfii 
 
 w, and Olen- 
 
 f till! iijcor- 
 
 rtliich villiiKo 
 
 veil tliat tlio 
 
 I h\iiU Rclldol 
 
 if liitiltlin^', 
 ij,'li schixil : — 
 not the liif;li 
 til iiiakt; the 
 
 Vict. c. '27. 
 
 )llt ll|lci|l till' 
 
 idi L .1 I.. ,1 
 
 ft. .. ;U lie 
 
 I'l' Mmn.t- 
 
 of the Tonm- 
 
 •il I'lmntioa, 
 which ^'iivc 
 
 time t(i tiiiK^ 
 
 hciiil (listiict 
 u enmity .'iiul 
 li:icl, (III '.'.'.hi} 
 l.'cl.ircil th, 
 hi; vilLiyc 1 
 iif Willi.uiis 
 wii.s r»'|ic;ihMl 
 hinvcvcr, ilc- 
 whicli I'xisti'il 
 M.irch, I.S77». 
 iiiiiicil mIiiiiiIiI 
 •Jth Octiil.cr. 
 
 Iii'v .\i». .Vil 
 , t lit it w;is 
 lid liylaws (if 
 latcd til liiyh 
 ; t(!riiis t(i ro- 
 'ilfi, iiiid then 
 iiiiitii's shdiild 
 ;ii Mi'liddl jiiir- 
 Ihc cdiiiity (if 
 illiaiiishiirKli. 
 - Held, that 
 districts was 
 power to (h'- 
 t the |iassiiin 
 f l.y-l aw r.KI, 
 iiiiKi tlin (lis 
 d, >vas valid, 
 had therefore 
 ii^fore the re- 
 ■A. Ih. 
 
 under th<! re 
 
 h .Inly, I87S- 
 (if NViiiehos- 
 ley r('i|iiirod 
 ither i»y law, 
 I .luiie, iS7S, 
 1 (t iiortioti (if 
 nil Nchddl di.-i- 
 he cdiiiity <>f 
 that district 
 Morvislmrgh 
 'r !V niajdrity 
 till! cdiiiitv (if 
 I liy 41 Vict, 
 'i! to alxilinh 
 otislitilte the 
 risliiirgh Iuk'' 
 I: thin by law 
 I... ■», if that 
 T the p.assagc 
 
 665 
 
 QUIKTINO TITLES ACT. 
 
 eee 
 
 When the lUninnd was made in July, 187S, 
 by daw r>!)0 was in force. It was moved again-st 
 in the Court of (^iieeii'a lieiich in Noveiiilier, 
 I87H, and was (|iia.shed so fur us it assumed tu 
 deteniiiiie the limita of distrietH, but not so far 
 M it repealed liy law No. r)51 ; (Chanilierlain v. 
 Slormoiit, 4;') (/ li.-t>.) On i.'7th June, 1H7!), the 
 county eoiineil pa.ssed another hydaw No. (!I7, 
 simply uliolishiii),' the existing high hcIiooI di.s- 
 ti'ietH m the county of Dundas. At this time no 
 part uf the money demanded hud been levied. 
 This by law was |i.'iMsed after the rub; nisi for a 
 niandaniiis in tlie matter li.ad been granted, but 
 
 before it was argued : Held, agreeing with 
 
 (ialt, J., who bad discharged tlu; rule nisi for a 
 niand.'imiis .tnd with Hagartj', ('. .1., who dis- 
 . eiited troiii the judgment of tile majority of tlio 
 Court of (,»ueen s ISciich, 4.") (^ 15. 4(;t), that if the 
 demand had been originally valid, it could not 
 be enforced after the passage of Ii3'-law No. til7, 
 and nothing would have remained in ipiestioii 
 but the costs uf the applieution. lli. 
 
 VI 1 1. Ml.HCEr.LANKOI'S C.V.SE.S. 
 
 To u bill by a rural school section corporation 
 to compel the miinieipii ty to maki- gdod money 
 paid by the niui>icipality to a person alleged not 
 to be the diilyappdiiited oHieerol the corporation, 
 the treasurer of the municipality is iK.t a proper 
 party. Sflninl I'litatiin uf' the Ti>wnshij> of 
 llumillon V. ^^til, 'JS L'hy. 408. 
 
 Moneys approiiriated foredu national imrposea 
 not protected liy township treas irer's b >ii(l. .See 
 Thi: i'oriiiinitidii of the I'ownnh /< tif (inLlund v. 
 I'roita- ft «/., 1 O. !{., Cliy. I). :U(), p. 4S4. 
 
 or olsewlierc,'' ajtplying only to notes made and 
 payable in Ontario. The note in this case wna 
 made in Toronto, pay.ible at the .Mechanios' 
 Bank, Montreal, and was sent to .Montreal, and 
 there Indd until m.itiiiity, « hen it was presented 
 for p.'iymeiit and dishonoured : Ibdd, that the 
 contract being perldrniabie in l,)iieliee, and the 
 breach occurring tiiere, the c.iiisc of action arose 
 there, so as to bring the del'eiidaiit within the 
 operation of "iU \'ict. o. 5, s. ."iS, and to make a 
 judgment recovered against him in t^u 'liec, on a 
 personal service in (•ntario, eoiicbi.sivo on the 
 ini;rits ; and the defeiidaiit was therefore pru- 
 diided fi(jm setting up a (lef(,iu:e on the merits, 
 and Was allowed to except to the jurisdiction 
 only. <,>iiare, w lietlier tiiu personal service re- 
 ferred to in K. iS. <). c. ijO, s. 14."», lelers to per- 
 sonal service in (Quebec. Court v. Scott, ',i'2 C. 
 v. US. 
 
 Partnership Articles. Ownership of I'lant. 
 I^iw ol (,>nebec. See Miiciiiiudd v. II orthiHi/ton 
 eliU.,1 A. 1{. 531, p. ."(V-'. 
 
 yUlCEN'.S HKNCir. 
 
 .St.'(! ilKJH CoLKr (IK .IrsTK K. 
 
 yUEKNSColNSi:!,. 
 
 .S'»r R.\KU1.STI.K-Ar- 1..\\\ . 
 
 QT'ALIFICATloX. 
 
 I. OF.IlsTKKSOIf THE l'l.,V(^K -.S^-f .It^TICE.X 
 OF THE I'EACE. 
 
 II. Ok ,Memiikk8of MrsicirAi, ( 'oi' (.■ri,.s — 
 
 .S't« Ml'Nlill'.\L CoK»'oKAIlo.\S. 
 
 III. Of MKMnEIlM (IF I'AIU.IAilENT— .SV*- PaR- 
 
 LIAMENTAKV El,E( iK v ' 
 
 IV. Of Viitkils— Sec I'aki.ia.me.si, iiv Klbc!- 
 
 ■noN«. 
 
 QUARANTINR. 
 .S'ee Husband and Wife. 
 
 QUlvHEC. 
 
 Under 22 Vict, c 5, s. r)8,'con8olirlated in C. 
 8. L. C. c. K], s. .')>■(, snb-H. 2, a judgment may 
 1)» recovered in the proviiK^e ol Quebec, on a 
 [lersoiiid servict; i.i Ontario, in an action in which 
 the cause 'hereof arose in 'iueliec, so as t(» ren- 
 (!(T such jiidginent con(;hisive oil the merits. A 
 iictt; made in Ont.irio, [iRyablo at a e .iticular 
 place ill ynebee, in a contract dojmed to lie made 
 lu Queltue, the phv.'o of performance, and iiiid<;r 
 <-'. S C c. r>7, H. 4, is jiayably at the phce 
 named thereiis, the ('. IS. IJ. ('. o. 42, reipiiriiig 
 the use of tite re«tno(ivu wunis, " nut otherwise 
 
 griETIXii TITLK.S Al T. 
 1. I'KrnioN, ((•>(>. 
 11. Effect OK CdSvr.vAMK u\ rKTirioNhii 
 
 AKrKK rElllKiS I'll.Kli, fitili. 
 III. EvMlENi K. 
 
 1. Abstract, (;il7. 
 
 2. Other Cii.'ti <, (i(!7. 
 
 IV. Ol. rSTANIilMJ Cl.Al.M.S, (iti7. 
 
 I. I'lvniioN ' 
 
 A eotitestant Mider the (,!iiii ting Titles .Vet 
 ■mist tile a petit. (.ii in bis own iiiiiie behirc aeer- 
 tillcate ean issue in his favour, but he may use 
 on such pctitidl the evideiieu adduced on the 
 petition in which he was contestant. lie Dun- 
 ham, 8 P. R. 47'-'.-Ulake. 
 
 Where pending the iuvesiig.itinn of the title, 
 the petitioner laid out the land in village lots and 
 rugister'jd apian : - Held, that the (letition must 
 bo aniel'.ded in accorilance with the plan. lie 
 .l/«/«.-. 8 \'. R. 47.">.- lUaLe. 
 
 .s^ie /;.• J'eUtii, 8 V. R. 470, p. (;i;7. 
 
 I. EfFKCT of CdSVEVANCE UY PETITIONEK 
 
 ArrEK I'etuion Filkd. 
 
 Parties to wboin land li.is Imvii conveyod niter 
 the rHi-i.ttration of tlio certlticate of the filing of 
 the ;)«*titidn, and pi;!idiii^ tiie iiivestinatioii of 
 the title, must be si.l.dif iilc.l as petitiduois. A'l' 
 CuaintHjn, 8 P. R. 47.'i— I'roudtoot. 
 
cg; 
 
 EAILWAYS AND RAILWAY COMPANIES. 
 
 C68 
 
 III. 
 1. 
 
 EVIIIEME. 
 A hntrilCt. 
 
 
 IiL'gistrarfi' ii1>str,'ii't8 imi.st bu continued to tho 
 dati.' (it the cii tilirato <)f__titlc. lie Ciiininiiigii, 
 
 8 r. u. 47;{. -riimdfoot. " 
 
 Wlicrc in ft iiciiHoii iindsr tho <,>ni(-'ting Titles 
 Act it \v;iH sIkwii that the reyistriiti'iua on tlie 
 wliolc Icit, iif «liiih the land iu (|n('sti<in fmnii'il 
 II jiart, inirid'( Till iivci' 5(10, ai:d that it would 
 take six months and cost SKK) to iirejiare an ah 
 straet : — Held, that tlie aliHtract might he ili.s 
 lieiiHcd with, if the airnhnit of ft rrovini'ial I.and 
 ,Siirve3'or were likd, inovin;^ that he had exani- 
 ini'd all the re^i.sti'.iliciiis on the lot, and that only 
 certain spi'eilied nundiers atlecteil the land in 
 .|Uestion. /iV .1/.,;'.sr, II, 8 1'. 11. 477.-- IJIake. 
 
 'J. (il/ii !■ ( 'lines. 
 
 Where there was no evidenc'to shew that 
 infants had liccn served willi a <l crei' of foreclo- 
 sure, reservini,' to them ' day to sii^'W 'an.se on 
 attaining' their majority I'ut it was ^!!^■wn that 
 they had lieen served \ V h notice of ])roee<'dinj,'S 
 nnder the (.MiietinL; Titles Act, ]>roof of service 
 of the de(!iei' was disjionsed with. AV (iilrlirUt, 
 S r. n. 47'J. HI, l;e. 
 
 Where a |ietitii nor \iidei- the (.'uietinn Titles 
 .Vet claimed title as di-visee of certain land, hut 
 the di>scri|uion of the land in the will Wiisdiller- 
 ent to that of the hiiid which he claimed : Held, 
 that he mi;;ht estaliiinh n title shewing a mis- 
 descri|ition in the will. lUit where .a misile»(cri|)- 
 tion occurred in a dei'd : Meld, that the )>eti- 
 tionci' had merely estahlished an e((nity to have 
 the deed reformed, and that under the .Act the 
 court could not di'clare the title as though the 
 deed had ill tact liecu reformed, J{e ('ultin/lmii , 
 « !'. II. 474. iMill ('(Mirl. 
 
 When a jietitioner under Hie Quieting Titles 
 Act claimed title thidugh a vesting order maile 
 u^ion a sale umler a decree in an administration 
 suit: -Held, nnder (iunn v. l)o!ile, l."» < 'hy. ti(!."i, 
 
 tint in the aliscnce of pi f to the '-ontr.iry, the 
 
 order should he .'issumed tj he regular, and that 
 it was unnecessary to give evidence shewing title. 
 y.V Murs,', 8 I'. IJ. 47"). — lilake. 
 
 .Seu lie Dunham, 8 P. I{. 47l', p. GGO. 
 
 IV. OUTSTAXniNO Cl.AIMH. 
 
 Where ft jietitioiie'- undi^r the Quieting Titles 
 Act has only an est:;to in fen in reiiiaindi'r, the 
 consent of the tenant for life must he ohtaincd 
 lieforc! the jietition can he tiled, lie I'vltiu, H 1'. 
 H. 470.- liluke. 
 
 Where the title of a petitioner under tho Quiet- 
 ing Titles Act was eHtahiished except ns f . an 
 nnilivided •me liflli inti'Vest in the hare legal 
 estate, «liich appeared to be outstanding in an 
 infant ; Held, such inti rest niu-tt be got in by 
 th<' petitioner or lie di dared Ml the certilic ite 
 of title to be mitslanding. He Jiayiitrd, 8 1'. li. 
 Mii. — IVoudfoot. 
 
 QUO WAHRANTO. 
 
 See MtNU'll-Al. t'0U»'0RAT10NB| 
 
 RAILWAYS AND RAITAVAY COMPANIES. 
 
 I. PoWKK.S OF DoMISIO.V ANt> PUOVINCIAI. 
 l.,KflIHLATIUE.S— .Vcc ( JoNSriTCTlONAI. 
 
 Law. 
 II. Lands and tiikiii Valuation. 
 1. Lnmlii Tukvn. 
 
 (a.) Cioirnitiii'iil Lamln, ('>(i"J. 
 
 (b) liifdiiC* Kxt<i/,; (i7(). 
 
 (c) Ent(ite of lii ninindirmnn, 070. 
 (.1) Other ViMn, (i71. 
 
 '2. Liniih Granted, on Condition. 
 (a) Evertinij SttttUms, 073. 
 (h) Farm CronKinyH, (J74. 
 
 3. ' iiiiipenxntiou, 07"). 
 
 4. Order/or /mmediale, Possennion, C75. 
 f). Ife/ertuee and Award. 
 
 (a) De.ii.ilinint, (!7<'). 
 
 (Ii) Olijeclionit to Aii'urd, ti7>'i. 
 
 (). I'limr iif /iViv/ivr to Acquire Jiijlit of 
 Will/, (i7(!. 
 
 III. CoNSTKI rllo.N (IF RaILWATX. 
 
 I. Hiijlnraiin. 
 
 (a) I'li'dirai/x f'lniniii'j nn, 076. 
 
 (b) liridijin ori.r, 077. 
 
 (c) t'liirei*, (i77. 
 
 (d) t,'af,:i, 078. 
 
 (i') liirin ('rll.^^n!nlJ^, 07S. 
 'J. I'netinij l''roijH of' /tuiU, (!7S. 
 I\'. is.nUllC.s TO I'KJWONS ami CviTI.K. 
 
 1. At Intirmet'on of llaUit'nijK, 078. 
 
 2. At llinid Cro.i.iini/i, (i7'.l. 
 
 3. Jiinininj liivi'rnehj, 07!). 
 
 4. L'untrViiitory Xeijliijince, 080. 
 
 5. yn/leet to llepair Fe.nre.1 or Oaten, 
 
 OSl. 
 
 0. /iiinKlijiM, OSL 
 
 7. (Jtlur C'(i.t'V«, 081. 
 V. FlKK FKOM LSHINKM, 08'J. 
 
 VL C'akhia(;i; OF (joods. 
 
 L Liahilili/ liiijond Ihfmdants' Z,iM<',083. 
 
 2. Si>eeial ('onditionH. 
 
 (a.) Liahdily u.t Carrhrs or Wtirf- 
 
 liouxemen, (i83. 
 (b) (Hher ('a.iex, 084. 
 
 \ 11. LiAiiii.iTv Foil Acts of Aubnts, C35. 
 
 VIIL Stock. 
 
 1. Coitditiunal Suhicriptiun, 080. 
 
 2. Dirfclom, 080. 
 
 IX. HoNDM. 
 
 1 . Jiiiiht of Hondholders to jtvfuitcr and 
 Vote, 080. 
 
 X. Aid to Railway OoiiPANiKH nv Muni 
 lirALiTiKs, 088. 
 
 XI. Amaluamation or Railway.^, 090. 
 
668 
 
 I Y COMPANIES. 
 ANi> Provincial 
 
 frCoNSriTCTlONAL 
 .UATION. 
 
 twin, )>()D. 
 , (i7(). 
 
 liiiiliniinn, (170. 
 71. 
 
 'iiiitlitinit. 
 ■iix, VuX 
 in, (i74. 
 
 « /'onHcii.Hioii, 075. 
 I. 
 
 [ii'iinl, <>7r). 
 
 Acniurc liiijht of 
 
 LWATS. 
 uilHJ nil, (i7(). 
 
 •77. 
 
 '/•<, <>7S. 
 \'ail/i, it's. 
 
 AMI ('Ari'l.K. 
 
 tuiliriii/M, (178. 
 (;7'.l. 
 (j7S). 
 
 f( Mcc, 080. 
 Fence-i or Oalfn, 
 
 1)8-2. 
 
 •findanla' Li/K',683. 
 
 "arikra or Wart- 
 <\. 
 
 V AUENTS, OaS. 
 
 p^ioH, G80. 
 
 era /o ItegUlfr and 
 til PAN IKS 11 V MuJfl- 
 
 klLWAVH, 090. 
 
 069 
 
 ll.VUAVAY.S AND R.\1LW.VY OOMPAVIRS. 
 
 670 
 
 
 Xtl. Rvif.ww IN If win i»i' IJk I'.n UR, OOil. | ti>ry cna-'timnts appoirini,' in tlu; cnso, hail ao- 
 
 qilii'uil an iilxoliit.n titli? t'l tin: laiiil in (|iiostii)n. 
 fri'i) fniiii aiiv liim in r.'sp v-t tlpTiMtf. 'Pii ■ 
 0,:i,f/ Trii',h II. ir. C. V. '/'/(.• n,;;id Vii'ly R. 
 
 Xin. MisiKI.I.ANKolS CASKf, 691. 
 
 XIV. SlTi'IM, .\''|N KIUATINII ni lV\nTrcl'I,AK 
 ('llMi'VNIKS. 
 
 1. Ciiiiitilii Allitnik linilirai/ Ciimj^iuij, 
 
 (1:11. I 
 
 2. ('!■! 'h ('■iifr iM{-'lir i,/roin/iiini/.(>'.)'2. ! 
 
 ',\. Jii/rrn iliiii'il lirili'' ('iiiri'iiii/ — .SVc i 
 I NI'KltS \ri (NAl. liKlliiil-: CilMI'AVV 
 
 XV. Tl(\.I\VAY -S'.' Tl!\M\\MY. 
 
 II. I.ANis ANii riii;iK Valcatkin. 
 1. It'imh Itikrn. 
 
 (,-i) (t ii''Tinii- il> LiCifl. 
 
 Soinlil'-, III il; ill lli : cam of rvilwiy iMmpin'.(!.< 
 witliiii t'lt' >\<(''lii'4i\'i.' lurisiIicitiiMi Hi Lilts I) iiiri.i'iii 
 P.i'liaiii 'lit, il; Il w I 11 1 p'lw.ji' t'l iviii or up m sii.'li 
 ciiiiipaiiiiM llio ri:,'lit, of I'Dtistnictiiif,' tlinir liiif.i 
 till' iil^'li t 11 ■ cnnvii I. Ill Is of ill') si'ViTil piMviiii' •^ 
 tlir'iii>,'li wliiiili til ■>' 111 ly p m, wit.lioiit any r.' 
 sti'i'lioii .14 lo olii lining tiM ooii-t'iit of lln' 111' 1- 
 tt'ii:int :; u c-nior in i'oiiiii;il. Hi)i'li v. M/nh/r' 
 ft •!<., :n «'. 1'. LS:i. 
 
 Tiio <>nt'irio, Sim 'of>, nn'l Huron H lilway 
 CHiipany, (.ifttM-n iris (!lrin;,Mil to " TIk! N'orth- 
 eni K lil A'ly of C I'l il I,") in tlm ciiiPsis of th" 
 cointriii'ion of tli'ir r i.i Iw ly, aotiii.; in a<'<n'n'l 
 mil alli'.'"l ii'ir-t'iin^' • of tlii> po\vi'r< conforr mI 
 on tlic I'oinpiny liy its cliarlcr, pnti-ncl upon an) 
 took p i-.''-i-iiiii iif !• M't liii •_' n'<'riinii'i.r '.miN li 'I 1 
 by flii'prin''iii i! ■itli • T^of II'tM iicJty'Honlii iik'i' 
 for or.ln ini'c piifposus, ;iiiil niociMi'livl to con 
 Btriiot til 'ir rot I I'lor'on. .\fti:rwii'U n 'lioH i- 
 tioin WTi- op 'lie 1 l)('tw'<"i till! !oiiip my aii'l tli • 
 
 })riiuM[i il o!ti 'PIN I'or a ' piii'iii:; siioh rii^lit of way, 
 u tho c inrs! of wliirli n in 'imih l"tt trs jim'l 
 lietWiHiii t'l' pirtii'S I'l 1 II 'fw'j.Mi tli ; m"Vi'1'iI ili'- 
 pirtin -Mts 1' )nni'"t •■! with tli" or.lninci! il'pirt- 
 meut, from wliii'ii it appi-arcl tiiat tin* parties 
 ooiii'iM'ii • I Iri'l irtivi'l at t!i'' cuii'liHi .n tli it 
 
 W. Co., •_»7 Cliy. '.•;«-'. 
 
 Suu Atinm'ii <}i-iivml V. MidUiml R. W. Co., 3 
 (). H. .Ill, p. 't)72. 
 
 I 
 
 (I.) !ii/iiil'.i &V.^^•. 
 lit' niotlicr of infant I'liiMi'cn.rpfiiili'iitwith ?ier, 
 
 liciim ontitli'j to a thirl iinliviili'ij iiitiTcst in 
 the lain!, th'y ownin^' t'u' r •;iiliii', liy I'l' I a^'nu- I 
 with a r.iilwiy !•' nipaiiy. i" ooiisiili-ration of an 
 fxii'iisioii liy till! 11 of tlii'ir lit! • rif railwiy from 
 |{. to I'., aii'l for oiii! ilollar to <rrint to tlioin in 
 fi' ■ t'l' ri^'lit of way "tliroii,'h inv Ian 1 in I'., 
 oonsi-ttiii;; of Hii ;h portion of lots IS an I 19 &■* 
 m ly l)p fi' piiri! I to carry tli ' railway across uaiil 
 lots," ,111 1 conv /cil to thcin a'!cor Iin.;Iy. At 
 the tiini' of til'! c invcyan 'II she h 1 1 not licon ap 
 piint'il Jill ir lia!i ti li-r chililrcii : -llclil, that 
 uinlcrthi' I! lilwiy .\ ;t of ISi-i, (.'!l Vii.'t. c. (IS, «. 
 <), sill s.i. :{. '.I, l>. ,1 h 'r.le ■ I hiri'.'l tin I'll illnnH' 
 illte|•c^t in thclaii'l is wcH as ln'r own, ami that 
 tlicv were th 'I'c'orc not ciititleil t i comp .'iisatiou 
 from til! c iiipa ly. />(»''!/< v. TkiViii'vLiCfii- 
 Iral IL ir. ('>., 4.-) (J. H. 71. 
 
 (c) E^i (''' 'it' II' iiithi'f ■num. 
 
 .\ I'ailwiy c()ni|riny paiil to tenants for lifo tho 
 full price of Ml' Ian I convcycl liy them to the 
 c, imp my foi their liiii; of r.iilwav, ami on tho 
 ce-iscr of the life '• .c itc f' • p irticsyufitKvl in re- 
 in liiiilcr lili'l a iiill statiiii,' tli it tlit! railw.ay coin- 
 , p uiy atsuiii ■ I to |i ir.'h u ■ the Ian Is for t'l! ri.;lit 
 of w ly ; th il till' CO lip any ,illc,'i! 1 that th 'y hail 
 ^ pail the full eiiii-ii.leiMtioii for the I in I to tlui 
 t '11 iilt-i for life ; siili iiittin,' that c\eii if the com 
 p iiiv ili'l in ike such p lym 'iit they >li'l no in tliuir 
 , owii w.'Oii,', ail I asking; for piviiunt of th: 
 I pi liiitill's' sli ir,! of the purchise in i.i 'y : -IIuM, 
 , t'l it t'le stit!iii'iit that the coiii,iitiy "allis:,;- 
 
 o 1 " til it the piin'lrise in iiiey was all pii'l t i tli'/. 
 the eoiiipiny were actiii'j; within th"ir «tatat iry ^.,,,,,1,,,.,, „,,i^ ,„,(, j,,,,.], ,i j, ,sitiv>i stit^misnt of 
 
 powers, mil tint ill ,.'." ile|, i"t itc.il I re.piire N |„. f^.f, ,,f pi.m'iit to the ten iiits for life as ti 
 
 was cimpiH;itio'i fo" th" lull taken. SuIm.- ,,,^1^,, {.|,,,„i |,r,,,,er p irties to l!u, i.ill, aotlaile 
 'jiii'iitly .ill tliesi' 1 ill Is were, Ity tlio inr.i'rial 
 
 goverii'ii 'lit ee le 1 to th • i; ivcrinn 'lit of Cm 1 1 1, 
 un 1 ill t'l'" yen- IS7."> it w n n 'er; lin.- 1 t'l it'thi 
 Slim for wlii'h the ijov.'rnm 'lit hcM .i lien up )' 
 
 per p 
 iniirrer w u illowel on this ;,'roaiiil. Ouufiit v. 
 h'r.iirl Tr,i,i,- n. ir. r. , -JS Chy. 4.'S. 
 
 All " .iction for minevlriil aii'I receive. 1 wil! 
 
 the road I'mm.it' I to ahmit L"i;();),()l)0 ; ami livanjli'' wherever a ce-tiin amount of iiionoy Ixtloni,'- 
 Actof the lei,'isla'nro of tliityearthitcliim'wis I ill,^' to .me person his impro|ierIy come to the 
 comproini.si il liy tho ^'overllluellt for ClO't.O'M) 
 
 stei'liiiij which w.n piil. Ill the y,\ir IS'ili or 
 IS.",7, this ciim]i;inv .'i;,'reeil with tlio (ir.iii'l Trunk 
 
 liiimts of .'luotlior." 'I'liorol'oro, where a railway 
 compiny paiil to tlie ctDcut iri of a t !n iiit for 
 life the sum piyalile for the fee Hiniplc uf laiiiLs 
 
 Riilwav (' 'iiipiiiv f.ir tin* ii-ieofa portion of this i t iken liy the comi>iny for the purpo.ses of their 
 laiil fiir th> pitrpises of the lim- „f the latter '•":>•. '■""l ■■*"''-'<''l"""".V tli.i rem limlerm in lilcil .a 
 iiompany, who it was shewn hi'I ciitero I upon I hilla^'iiiHt llie c imp my ami tlie rcpres iiit itivcH 
 
 ami continue^ in th.' iHe uf tlii-i 1 in 1 until ISTil, ^ "^ ' ' ' ' '' 
 
 when the Cr.'.lit \'alley I! lilw.iv ( 'iciipany, with 
 a view of olit lining an untnincc into tho city of 
 Toronto, ciitercl upon this tr.nt of l.iiil, aiel 
 Were proci'c liii^' ti eoiislril't theii line of ro ul 
 theroon, I'iikii a liill lile I l>y the (Iran. I Trunk 
 Kailw.iy ('om)iany .ui iiiterlo.'iitory injunetioii 
 Wis 4,'r.intel to r(!<triiii Llui fiirtliur conatraction 
 of the Cre lit V.illcy Iliilway, until the Iioirini.', 
 when the iiijuiieti'iii wis mile perpetual, the 
 court beinx of opinion that tlio Noitherii Rail 
 Way Company, nii'ler their dcilings with the 
 board of orlnanc !, and under the varimm btatii- 
 
 if tlin tcn.'iiit for life, Houkiii:^ to obtain payinunt 
 from the coaipmy of tlie prop irtioii of pnrcli;uii) 
 in .iiey piyablo to the rem linleim m :- Hold, 
 th it tho e\e!iitors worn pr,i(ieriy m id i pirtios 
 with a vi(!W to the c.impany lol. liniii;.; relief ovor 
 a'^'iinst th'!ni in the ovoat of the i!iiaipiny \'\\\n 
 I I'oiiip 'Med to make ^ood the uionoy in the finit 
 instanee, ;in 1 a demurror by the o\e 'lit irs was 
 overriilo I with i!iMts, on the trroiind (hit the 
 1 ' mpmy wero entitle I to a rcmidy ovor a:^aiii»t 
 thi'iii for the .'imoent overp ■ ' tliom, .ind mi tho 
 additional groiic * Si (t tlu '> Il allowed all fautd 
 iiece.s.sary to ontitk l!r plaintiirH t) i\ direct de- 
 
071 
 
 ISAILWAVS AND HAIIAVAY COiirANlKS. 
 
 672 
 
 
 'a. 
 
 i;ri;«! agiiiiiHt, tin iii, altlioiijjli llir liill was licit I pui [insi's of their railway iiiiili'V their statutory 
 naiiieil M ith a view to iiiliii'i'l reiiiiily auaiii.st pnweii, ainl tliat they liail .siiue ic taiiieil atul 
 the cxi:euti)i!i ; for " the |iayiiieiit lieiiij; iiiai.. 'y then wero in jpnHMes^idn theleot, aiic' they alno 
 tll<i i'i>i>i|iaii,\ III till' e.seiiitiir.s " ' * ot nioiiey jiliiaduil the Statute (it l.iliiilutioli.s : — ilehl, uD 
 to a l>i<'|«'i tii'ii otvvhiehihe plaintill's \teie en- i ileiniirrei, that it wiih nut lu eeH.-<aiy to si t luit 
 titlnl, anil the |i;.\niilil lun^ liiaile Willnillt the j .speeitiealiy tile statntcH allliiletl to, in the vaii- 
 autlioriiy ol the |.!aiiilills it lucanit! money hail iius pioceriliiii,'n eoiineeteil with the exiiroiniatidii 
 unil ici-eiveil liy the ( \eeiitors to the um: <>!' tliu | iit the lainl, ami the detenee waH not olijeetiuna- 
 
 Me, npiiii lit niurier, <iri the ;,'iimnil of Wiint of 
 eeitain'.y. hy leaKon ol its men ly general allega- 
 tion ot eomplianee with the Htatnloiy iei|uirt'- 
 ne. Ills : Helil, alfo, that the liieie allej^ation 
 tiiat the ileleliilalit.s were in p<i.st<es,-.ion alloiileil 
 a gooil ileleliee ill law ill .siieli all ai tioli, ami put 
 till' plaiiiliir to the prool' of his eaiiHe of aetiuii, 
 uniler lilile 14-1 ; — llelil, also, that even if liMih.r 
 H. S. (I. c. It!."), the a^^ent of the lieutenant- 
 (loveiiior Ml < 'ouneil to tlit^ expio|<i iation of the 
 lamln liy the railway wan m ee.'-.saiy, whieli it WiW 
 
 plauitillH." .V. ( . //'. -I.'tl. 
 
 (.1) Ollm- CtlxiD. 
 'lliere Ih a (listinetioii lutwetli tlu' lie.hts eon 
 
 rened upon ninnu'ipal i oi| oratmnM ami railway! 
 ciimpaniiH iihpietively to expropriate luopeity. | 
 tlic loinier e\i.--tii.>; for the pnhlie gonil, the lat- | 
 ter lieiiig iin.n.iiiial inteipriMX only. 'I he I 
 ehartei> of the latter aie therefore more rigiilly ' 
 
 coliHtuiiil ih.'ili aie the ]ioWelS of a nilinieipal I 11,11, 
 
 .'..riioiation. /Aim/,/-./ v. '//« < :., nur<ili„n „/ tl"^^'"'- .V^'t "Her a user ol the laml l,y the railway 
 T irii.-hi,, ../ ( '.</;//, -J!! ( hy. ;«KS. I ""■ I'" >'-■"«• '""'I'lo' "ith liKl.-l.itive reeogni- 
 
 I tioii 111 the f-tatiiH ol the railway I'l iiipany, nnil 
 Tlif rity of Oltawa, pasM'il resolutioiiM piovi | „,lh tlu: laet that the taking ol it wa.- with the 
 
 <lilig lor a leaM' ol ii^ht ol way to the (aiiaila 
 
 Atlantie liailwav ( iiliipaliy over laliil.s expio 
 
 priateil hy till Illy Im watir-woikn pnipi.MS, 
 
 miller ;<f)"\iet. e. Ml ((»|: llelil, that thiiii;;li 
 
 prima laeie the only right intemleil to lie eoiifer 
 
 nil on a ei nipan_\ ih that ol expiopi iating the 
 
 piivate piopiily ol iniliv iiliiaU or em poialioiiti, 
 
 ami not inopeiiy alriail> ilexotiil to piililio u.-eN, j Willianm, 111 (}, H. ;i'J7, iollow 
 
 a.sM lit of the iiiiiver«ity, ami eolhgi;-, anil Imr- 
 sar, the formal assent ol the ( lowii iinist he held 
 to have liei 11 di.speii>eil with, ami trespass or 
 ejeelmelit Would not lie: Held, ali-ii, that the 
 Statute of Limitaliontt was no liar to the aetiuii, 
 allhiiugli lii'oiiglit l.y the (lowii in its e':i|iaeity 
 iH tiusteu of the land in ijumtioii, Itegma v. 
 
 Aldinii II- 
 
 (ir alrtai'iy i >piopi laleil under other Aets, yet, (,; „, ,-,(1 v. 7/ii ilUlliinil It. IT. C'l-., ;! O.I!., (liy 
 under some eiKiiiii.-tanei h the rig' to make bin li {)_ ;\\\, 
 ex]iropriatii<ii might < xist, and . o, ilim the 
 
 t'ily wiiuld have the coin spumling powei to mn 'Hie I*. A; ('. 1,. I\. <'o., im <' pmatid in ls.")."i, 
 
 V( y ; .'iiid ah llie jipiilii ant had not sill w n to th'' ly IN \ut. e. I!)4, had ai'i(nireil the land in 
 eiiiiit that eiieiini.'-t.' iiKK did ml exist under , i|nt Hlioii .is part of theii' roail hed. In I.Sli,''), it.s 
 whieli the railway ei nipany euuld take the land, lehailii txpired, the riinl imt ha\ ing lieeii put 
 the (liUit wiiild not assume that the eity had j in operatii 11. In I8t!(i, ■-",• ;iO \ict. e. !W, was 
 ei.ii.niittid a I I eat h of 1 1 list in passing the rem- ; passid, liy w liieli the lead was to he .'told at aiie- 
 liitions :— 111 Id. al.'-o, that tlieie was nothing in , timi, the Act of Ineor) oiatioii was revived, and 
 the resolutii us antlii'ii/ing the railway to eriiSS|the time for eomphting the railway exlemUd 
 the HtrjetH at a );iaile ilitleient fluni that pre- i for live yearB trilii the passing of the Aet, .iiiil 
 seiiliiil hy the hallway Aet of Ih7!>. lu /iV i there was a further provision lor sale under onhr 
 
 liri'iiM.ii I'l III. mill I Ik ( uipuiiitliiii o) lilt. ( ilij III' . ol the ( 'mil I of ( hum i ly. \\ it Inn I he live y earn 
 
 I .-V eonvevauec was exeented to the ileleiiih.ut 
 company, which took possession, Iml did not use 
 till' l.iiid till a shoit time '-im,- the suit. Ill 
 l.sT-J. the ('. 1'. & M. li. \ iM. ( o. tiled a i.-..ip 
 and hook of reference of a proposed extension nf 
 thiir line over tin' land in ijiiiHtion, and cmi- 
 sliucted ji.'irt 111 their road lln-i-.nii, Imt ceased 
 in IsT.S. Ill IhMI, under l.'J Nut. .•. ."i4, (•., the 
 »'. I', lie M. li. A M. Co., leiLsed to the plainlill 
 
 Olliiiiii, 1 (». U. . V. 11. 1>. 41."). 
 
 S., leiiig the owntr of hiiids thiongh wliirh 
 tlie deft mhiits ih sin d In liiild their road, agieeil 
 to give them the light of way, and the lomjany, 
 witii his » lllteli I I in.is.-iell, took J os>essli'n\\ llh- 
 out ei iiipeiisalion ; nd eiiistiuitid their uuid, 
 iiud had up to this time lieeii in unintei i upti d 
 posstssioii lor mme than till ^ears. 'Jin; plaiii- 
 tid, elainiiiig ni.der N., now ihmanded ci ni[ien 
 
 tin, eminiiug iii,..er o., miw II. maiiue . ei nipen- ^,„ ,,„., t,,^. |„„i j,, ,,„esti.,n, ami this action was 
 
 Hatio:. and ol.taimd ;. mamhiiiiuh niM to pioeee I ,„,„;,, t' j,, ,,,.„^.,., ,„„,,.„,„„ t|,. ,, .,f -, 1|,1,|, 
 
 t..arliltra:ion . n.ler the l.n.lwny .'\et Ih.iS : „,;,,,;■,„„„, judgment ,.f thecmiit I.elow. that 
 
 lehl aniimmg the judgment oM. alt, . I., that the pntial eonstnution of their road l.y the CI', 
 
 the plaintill w,.s not eli;ith d ; that S. having the ^^ ^^ ,5 . ^, ,.„ j„ ,j,.._, „._..^,,„ .„., .,V t.'espa.ss : 
 
 right 111 accept any or no emu, ensatmn, and l.av j,,^,, ^,,^, .i,.,-^.,,,,,,,,^ ,,.„„,,;,„y ,„„i,, t|.., ..^...'jving 
 
 „,j5 oloeted to fake ., ', the ciinip.iny then ';■ . ,x,,,, ,„„, conveyance in [luisuance thereof ae- 
 
 eaine entitled to the lands .'.nd he pla.ntill couM .^^.^,^.^ ^ ^j,,_, ^,f„,^, ,,,,,,, .',,,,^j ^,_,. ,,,^,,^ j„ ^^,„ 
 
 iiotHUeeeed IVr (.alt, J ' »"• " " .V^jTH pos- ,' ..,^,,. ^„ t|.., , m.rt of Chanceiy U.i.s perinis 
 
 «e.M.,.in ..f thr .. .npanv had extmguishe.l the J^,^, ,_,^.,,^., ^ t,,,^ n,^,,. ..j ,,t ^„ i,.,f,,„„, ^,,, „„^ 
 
 e of S, ..>l(l tlll'B*' elaimi"" liliih.r Inin iiii.l . . •' . ." . 
 
 title of S. ..'id tlii'He claiming under him, and 
 
 ve»t«'d it in th. nipany. Tliniiij.i'iiii v. Cnii- 
 
 ,i,l„ (',,'lntl l{. H. <:<i., .SO. !{., (^ U. 1>. VM 
 
 In an H.'tioii l>y lh<: Attornuy-denernl, upon 
 the relation of the Imisarof Toronto I'niversity, 
 to recover poHsessii n ot < < itain lands cl.'dined to 
 ho vehtt.l III Her iMiij.Ht;, lor the lien.lit of the 
 univuiHitj', the ileftmlant pha.U.I that the said 
 landH hud I cell, with the ass. nt of the iinivertiity 
 uiid liurijur, taktn posKviisKut ot !*> thmi for the 
 
 fnrfeited hy nou-c<jm|ih'tii)ii of the Work on the 
 laud within the live yearn, and tin lefnre that 
 the plaintitl company should not Miieced, '1 he 
 dee.l t.i the defendant company deserilied it hy 
 itH original name of I'. H. L. .V li. II. Cn., wlien 
 in fa.:t itu iianie had then heen changed : — Held, 
 a sullicieiit d'Hcriptio iicisome, to en;ilde the 
 .'ompaiiy to take, tlimigli it might not he Hiilli 
 elelil to Hue in. (iniiiil Ji inlinii /,'. IT. Co, v. 
 Mtdliwil /I. }}, Vn., 7 A n. (i>ii. 
 
 
C72 
 
 673 
 
 RAILWAYS AND RAILWAY COMPANIES. 
 
 674 
 
 li<ii- Kt'itutory 
 
 iit;iiiicil jiiul 
 
 am' tliiy also 
 
 IIS ; — llulil, on 
 
 :ii_V to «( t nut 
 
 , III tliu villi- 
 
 i'N|irii[iriatiiin 
 
 ml, oliji'ctiiiiia- 
 
 of want dl' 
 
 K<iiii;il iilU'^n- 
 
 iilciiy rc(|iino- 
 
 irir allt'j,'ati(pn 
 
 n^inii alliii'ik'il 
 
 'I'lioii, and [lilt 
 
 iii.T of artimi, 
 
 t i;vill ir lllidtT 
 
 I untcuant- 
 
 |>ii.'ition ot tliu 
 
 y, v\ liii;li it was 
 
 y tin: railway 
 
 ,,li\c rccogiii- 
 
 i'< Mipany, miil 
 
 t ua> with tlie 
 
 ij.' :-, iinil liiir 
 
 n iiinst lie In Id 
 
 id tn spans or 
 
 al.-o, that till' 
 
 tci tin; aftinii, 
 
 in its iraiiatity 
 
 Jii. lU'^ina r, 
 
 ('(I. Atiiifii' II- 
 
 , .'M).!;., Chy. 
 
 unitcil ill lN."i"», 
 il till) land ill 
 III IS*;.'), its 
 \iii^' lit I'll [lilt 
 let. V. !W, Was 
 lie sold at aiii - 
 IS revived, :iiid 
 lw.i.\ exti'liiiiil 
 I the Act, anil 
 nil iiiider iiiilt'i' 
 n I lie live yeais 
 till' ili'li nd.'.nt 
 liiil did not use 
 
 I the suit. Ill 
 o. tiled a i ..,|. 
 id ('Ntelisiiin lit 
 itioii, and emi- 
 iiMi, hut eciiMd 
 ;. 0. M, <>., tlie 
 [o the |ilaiiiliM 
 this ai tioii was 
 
 II not : Held, 
 lit helow, that 
 inlliy theC. I'. 
 n t (it tlesimss : 
 I- tin; revi\iiij4 
 CO t.'icrtiif ar- 
 il power to sell 
 ly H.l.S JM'l'Mlis 
 e land was hot 
 u Work <Jn the 
 tilt let'oro tliat 
 
 BlU'ceed. 'lliu 
 eserilieil it hy 
 It. ( 'o., H /ten 
 iii^etl : — Held. 
 to elialde the 
 t nut he Hillli 
 i I!. II'. Co. V. 
 
 Kxi)i'n|iriatinn of iniiiiiig Uiul8--Iiijuiiotiiiii. 
 Soo JiiikiiiH »7 al. V. The. CriUral Onlurio It. I)'. 
 I'o., 4 0. K.59.% p. 344. 
 
 2. Ldtuh Granted on CondUion. 
 
 (a) ErectUuj Staliims. 
 
 An engineer of the ilefcnilantB, whose duty it 
 wiiH to ohtaiii tninsfurs uf land and determine the 
 Hitii'dinn of Htiition liouseH, proeiired troiii the 
 iiliiintiU's, for noiniiial CDiiHidurationa, grants of 
 land for ii Mtation iiouse and ground, repreHenting 
 that the Htation would he put, as <lcaired hy the 
 plaintill's, at a certain pointiidvaiitngeous to hot' . 
 Tlie deetl of the ]ilaintitr .S. contained thi» iiro- 
 vido: " I'nivided that the said company, tlieir 
 HiieeesHor.s and aHHigns, <)u erect and maintain on 
 the saiil liindti a station fur the accominoilution of 
 iiasHeiiger.s uiiil freight, and name the same H." 
 The station was erected on the land in the deed 
 eiintaining this proviso, hut not at the point rep- 
 rt'seiited :- llehl, that though the plaintiU's had 
 the eNpeetation that the station would have heeii 
 jihiced wlieie they desired, yet there had heeii no 
 deeeit prartised hy the defendants' engineer for 
 the piirposi' of ohtiiining the grants of tilt; laiul : 
 that the engineer had no power to hind theilefen- 
 dants t!) such a tiling ; and that the defenilants 
 hail done all they were hoiiiiil to do hy ohserviiig 
 the proviso in the deed, wliiuh called for the 
 eieetitiii of the station house on the lands with- 
 I'lit speeifyiiig any pirticular point. Scldiilunif 
 it III., V. I'liHiiilii SinUhern It. W. Co., 28 Chy. 
 
 2:«>. 
 
 The plaiiitiir agreed with contractors for the 
 liiiililing of a railway to convey to them in fee 
 tiiiiiple six aeres, to he increased to ten if neees- 
 Kary, in eonsiilerutionof their placing the station 
 for the town of I'rescott thereon. After the ruad 
 had heeii Hiirveyetl and thestation hiiiltlingsereet- 
 eilon the pro|ierty,tho plaintiiroxecutedacouvcy • 
 ani;e thereof ' 'he contractors which cuntainetl a 
 ' i.venan' hy n.jm to continue and maintain the 
 Ktiiion on those lands from thenceforth, hut the 
 tieed was never executed hy the grantees. The 
 eiiiiipuiiy t'oiitiniied to use such st.\tion forahoiit 
 •'.» years, w hen they removed it to a distanee nt 
 one and a hall miles :~ Held, reversing the judg- 
 ment of the Court lielow (28 (!liy. MW), that the 
 act of the I'liiiipMiy in thus placing ainl using the 
 Ktat. in was a suhstantial eonipliaino with the 
 ii),'reeiiieiit, ami that they wore not linrnd to eu'.i- 
 tiniiethat station there for all time. I'er Hagarty, 
 ('. .). Seinlile. that upon the defendants ceasing 
 til use till' lands for the |iiir<iose for which iilmit; 
 they had lieeii eoiivey»'tl, the ^^raiitor Wiiiild heat 
 lilierty to n'sunie posset ;<i'>ii. I'er I'atterstui, ,]..\. 
 That even if the pLaiiitill were entitlen to elaiiii 
 such pos-seHsiiiii in ctuiseijiiencu of the eompanv 
 eeasiisg to use the lantl for the purpose for « lileli 
 alone il had lieeii ciiliveyed, the fm:t that the 
 ciiiiipany had i^niiied the use ami occupatiuii 
 during the progriss "f the cause woiihl heconsiil- 
 ered a material fa(;t upon an applieatioii to alter 
 the fratiie <i| the liill 111 order to ask that relief ; 
 ami iiiiiler the prayer for general relief the Court 
 would not ileteruiine that the plaintitf was eiiti 
 tied to re-enter, evuii though facts ap]iarently 
 Mitlieieiit to jiistily such adt;i'rue might he alleged 
 in the pluadiii^'B and deducihle fiuin the eviileiioe. 
 The proper foiin uf uoiiveyance tiiat should have 
 
 43 
 
 hecn iiscil foreffecting the iiliiutifT's |iurpiiseaug- 
 gestt;d. Jc.iiiij) v.Uruiid Trunk It. IT. Co., 7 A. 
 K. 128. 
 
 .See Clonge v. Canada Soullum It. \V. Cn., 4 0. 
 U. 28, iiijra. 
 
 (h) Farm Crossimjt. 
 
 A deed conveying a right of way to the defend- 
 ants in 18(11), contained the followingsti[iulatioii : 
 I "Tlieeoiii]iany to make and maintain a lariii croa- 
 siiig, with gates at the present farm lanes, the ftji'.oe 
 I at crossing to he returned as mneh iis possihlo," 
 , |{. the company's engineer, treated lur the con- 
 veyaiii;e, hut had no power to agree for aseconil 
 ! crossing, though it was saiil he had promised if 
 h" should lind n aecoiid crossing iiei;essary he 
 would, so far ns in him lay, get it diuir, and the 
 dei;d was executed upon this uiider.><tanding : — 
 Held, (reversing the decree of I'rondfoot, V.C., 
 '27 (Jhy. <.).''>,) that the defendants could not he 
 ciiin[ielled to make a second crossing for nae in 
 wiiitt;r ; and that, Ulion the coiistriirtiim of the 
 ' Words ahove set forth, they were hmintl to coli- 
 tiiiiie the crossing, not close it ii]i or impair it or 
 ' alter its character as a farm crossing, hut were 
 : not ohlig d to keep it free froin simw. Proud- 
 i foot, v. ('., dissenting, i^iiwernii \. W'eUbujtim 
 drey, Hid lirwe H. \V. Co., 28 Chy. ;i27. 
 
 I Where t'..e defendants, a railway company, 
 !thioiigli their right of way agent, piireliaseil 
 I certain laiiil for the railway from the plaintilf, 
 and verlially agreed with iiiin at tliu time to 
 I make and maintain certain over "Tid nmlercross- 
 I iiigs acriLsa the railway to he hiiilt on the land so 
 I piiri'liased, whereupon t'ie plaintitl conveyed the 
 i i.ind to them, for a loss sum than In; otherwise 
 I woiilil have done, antl for more than tmi yeara the 
 I defend lilts pviiiitained the cro.ssiiiL,'s as agreed, 
 i hut afterwarus natisetl some to hu tillt;il u]) or oli- 
 I strufted :- -Held, that, whether the agent liad 
 I authority to make such an ngreenieia or not. the 
 I {ilaintill' was eiititleil to damages and an injunc- 
 tion to restrain the dofeiidaiits from interfering 
 I with the crossings, for the company had recognizeil 
 thcagreeineiit, and adciinate eompeii'^ation could 
 not he given to the plaintitT in 'laniages, ami, 
 inoreover, farm crossings, when ( nee made hy a 
 I railway company, must, under';. S. C c. 6ft, a. 
 ' IS et set]., which w.ia i"f i-|iorated in the defen- 
 dants' charter, lie maintained hy it, and this 
 iiiili peiidtntly of any (i;;;re(inieiit for permanent 
 mainteiiani'e, altlnmgh it is otherwist; as to sta- 
 ' tioiis ; Held, also, that 41 Vict. c. 27, I'., does 
 [ nut v'ive the mortgagees, under the .irraiigeinent 
 siiictioned therehy, any power to destroy a farm 
 frossiiig given in eonsideration of the purcha»e 
 of lami hy the railway, "r authorize thorn to 
 iiiteriere with rights which theraihvij cnmpnny 
 are hoiiiid to respect. Semhle, that piihlic cou- 
 veniiiiee iinild not prevail over the plaiiititr'a 
 private rights. Semhle, also, tli.at agents for the 
 piiii'liase of the riuht of way for railways, have, 
 I as naturally iniiilent to their appolntiiient aa 
 I such ag'iits, power to auret; what crossings shall 
 I he ^,'iveii ; .lessup V. (Jraiiil 'i'riink H. \V. Co., 7 A. 
 I |{. 128, and SchliehiMif et al. f. Caiinda Suutherii 
 I U, W. Co., 2SChy. 'I'M, iliatingiiislie 1. CIhuki v. 
 fiuKuhiSoiithrni It. 11", Co , 4 ( ». l;.,Cliy. 1). 28. 
 This case has heen carried to i ppial. 
 
 Sec l-'iinii'i/ V. 'I'lie Untnil Jtiwtion It, IT. Co,, 
 4 0. U. 232,'p. (i'JO. 
 
()75 
 
 ItAILWAYS AND ItAILWAY COMPANIES. 
 
 076 
 
 3. <• 
 
 >iiij 
 
 iiiisiiliiin. 
 
 f 
 
 3,- 
 
 It* 
 
 Wlicic, a riiilwiy ('(iiiiiuny in t)ii< t'oMMtnictioii 
 (if tlicir mill tiink iiiiHii-ssimi nf ,'iii<l Iniilt tln'ir 
 rii;ii| iii'i'iiss ,'i jiliil III l.'iinl nf till) |il liiitiir, wlm 
 in^titiiti' I |iMM'i' •iliii,'n t'l i'iiiii|i'l |iiyiii''til tlnTf- 
 fiir, .'iii'l iiii'li'i' tlir ilciTiT :i hiiiii nf 81, SO:) wis 
 
 fllllllil tn ll ' till' Vllllli' of Hlli'll pint, wllli'll Nlllll 
 
 ti>,'i;tlii'r \vit!i iiiti'ii^t .nil i-mts, wimpiid liy tlid 
 <'iiii]i my ill iir.ji'i' tn pr.'vi'iit tin' 1 iii I l)i'iii_' |iiir- 
 clrtsc I liy .1 i'JvmI cniiiiiiiiy ; .iiiil tliicr yi'iirs iftcr 
 w ir.U tli'V i|i|ill 'll nil pi'titinii tci li.ivc ;i pnrlinn 
 <if Hiirli )iiiii:!ris • iii'iiicy rrfiiiidiil, mi til'' L;riiiliiil 
 tli.it Himtli T riiil«;iy cniiip.iiiy, wiinsi' riijlit-i li nl 
 lii'i'll nH>ii;;ni'i| tn IIumii, li.i'l pn viniisly p.liil it 
 iirinr nwii' T nf till' Lui'l fur .i jmrlimi Hii'ii'nf : — 
 rin- I'liiirt (KiTuiHiiii, .r.,) r<^fiii<-'l tlir rclii-f .iski''! 
 
 with rnSt.S, nil till' ),'r(lUI|i|, .lIllill^Mt iltlll'IM, tllilt 
 
 tin; iviiiipiiy, li ul llu-y <!X.'rciifi| iliii' i|ilit;i'iiii' 
 ill tllH llllltiT. innllt ll IVH IliM-nllli- .HV.iri' nl Slli'ii 
 
 prinr piu'c'lrisi- iiiul |»;iviiii'iit. Ihinxht,' v. /'//!• 
 <'ni,uiir,i mill l'rlr,l,',m l(. \Y. Ci,., 'J'.H 'liy. I'-'l. 
 
 .Sim: l)l(ll! i/i V. '/'In- Cllllil'ld Cilllnil II. IT. ' 'n. , 
 •».') (^. I'.. 7t, p. tir<l; (ht's/iiii V. (/ntiiil Trinil. It. 
 
 II'. r,,., 'JH ciiy. -ijs, .V. r. //,. WW, pp. cyo, (in ; 
 
 T/i'iinin'iii V. ( 'iiiiiild Ciiihid It. W. I ''I., ',i H, I!. 
 KM, p. (»7I ; .\'<irrill v. 7'Ac (.'itintila .SihiI/h ni It. 
 
 ir. Co., T) A R. i:i, p. c.Tii. 
 
 fcrcil ill tliiH ciiHt!, AH till) iiiHtniiiiciit in i]iii-itti(in 
 w.'i.H ill iin Hi'tiHi! an iiH'.'iril iiinhtr tint Htitiiti;, tlio 
 pniviMiniiH of till! Mtiitiitc not liuviii); Ihmmi oIi- 
 Ki'i'vi'il, tliiM'i.' Ii.'iviii^ liitoti only two ai'liitiMtors 
 
 .'Ippniiiti'il, wlin ll.'lii lint liiM'll HWnril, :tni| hIiI)- 
 si'i'. 'ii'i of HIM'. 'J, not ll.'ivill;; liciili fnliiplliMl with. 
 /// /•'■ llni'liiii itii'l .\iliii'iiitiiii iind (,'iiniiilii (,'i'iilriil 
 
 It. ir. r,., 4rtii. \\. I4i, 
 
 Ilt'lil, .■itliriiiiii;; till! il(M!r<'(!of I'rniiilfoot, V. ('., 
 (hit the pi liiitiir wiM (Mititli''. to H)>iM'ili(; pnr- 
 fniiii;iiii'i' nf Jill jiw.inl L;iviiii{ him il:iiiii!{rM for 
 lii.'i l.iinls tiiki'ii liy till' ili'fi'iiil.intM ; tluit tliti siitn 
 .iw.inli'il was not HO t'xcrsHivM iis tn simw any 
 fniiiiliili'iit nr iniprnpiT •■nii'liu't nil tlir jtirt nf 
 till' .'irliiliMtni's ; iiinl (jMimti', whi'tluT, if mIu-wii, 
 it WoilM In; ;i ilrft'lli't; ill Slli'll n prni'i'.'ilimr ; 
 l,)ii;ci'<', iiUii, till! I iiiil li.iviiiir Im'i'ii tiil<i-ii iiinliT 
 nil Ai't nf till' Dotiiinion I'.irli.iiiii'nt, whrtlu'r 
 till' liiiiliiij{ of till! i'irliitr.itor,>i I'oiihl ln' ri'vii!\vi'i| 
 iiinl.T th.' statilti! of Ontario, .'JS Vii't. , c. I.'i. 
 X,irr,ill\: I'.niiiihiSuiilhrni It. II', f 'o., ."i .\ II. I.'{. 
 
 Si'i! .-ilsn .Wiri'i II v.l'iiiniilii Siiiithifii It. W. Cii, 
 .(//'/ /•'.;(((• otiirr <'ii.v.H, !» .\. K. :{|(», ;»•_»:». 
 
 S.M! .l/i»,)-(' V. Tlif CfHlml OiiliiriK It. 11'. Co., 
 
 'JO. JMiiT. p. i;;.'). 
 
 Sui; al'in II. '.', p. CT.'J. 
 
 4. Oi'l' r /lie liiniii'llnlf l^ll^■<r.^.^!ll||. 
 
 Scmlili'. tlint tlin |inwi!ra i'oiifi'rri!i| mi tlm 
 cmiiitv jii Il'i' iiii'Iit tin; U.ulw.iy Ai't nl Ontarin, 
 If. S. O. I'. Ili'i, N. "Jd, sill) H ■_''{, of orili'riii;; iiii- 
 lllciliali' pn^Mi'.ssinii, licfnl'i; .irlii tratinll ll 111, ill) lint 
 «'.\i'liii|r tlir jiiri.sclirtimi nf tliiM i;miit to I'lijoiii 
 the t ikiiiH of pnssissinii, if tlii' I'niiipaiiy ix iii.ik- 
 ill,' 11.11' nf itn puWi'i-.s tn .-iltlill any nhjci't I'nII it- 
 rr.il to th it for wIiIl-Ii it w.im inroi-pniiiti'd ; liiit 
 iithrrwiMi' it it lint within tin' jiirinilii't,imi 'if a 
 JM'l^i' nf thi.s I'niirt tn iiiti'rfrri' with :in oi'ilrr of 
 a I'oiinty jiil^i', though ^rantinl ex partf. ./■>i- 
 kiiiHi'l III. V. rif Ciiilnil Ontiiiio It. 11'. t 'o. , 4 O. 
 |{., Chy. I). .'■.!»;{. 
 
 S. Kefvrpnee and A wunl. 
 
 (ft) Dci'iMiiiful. 
 
 Hi'M, tliit a riihv.iy omiipiny hiviiiL; ilo^iHtml 
 oiiei! frnni tlii'ir notiui! to tiki; lainl, i^iviiii iiniliT i 
 15. .S. O. i:. |i;."), H. 20, cniilil lint a'.;iin ili'.sist, 
 pi;ii<liii^'.iii arliiti'itinn proi!t;uiliii^Min<I>!r a si'uninl 
 imtii'i;. 'rin; iiinipiny a urhitratnr li.ivin;,' with- I 
 ilr.iwn from sin'h arliitr.itinii, in ili'fnrniii'i; to a < 
 iiotii'o of ili'sistini;nt ^ivun by tlio ooiiip my, afti!r 
 till! iimoiint to Ik; awarili;il liail liiioii at,'i'iH;il npiiii i 
 liy tin; otlii!r two : — HuM, that tlio umnpiny i 
 coiilil not ohji'ct tn tht; awanl on tlio i^ronml that | 
 the coiiiiiany'M .arbitrator hail not hcon aiki!il to 
 n'mn it. Mituie, V. yVic Criitriil Onturio It. 11'. 
 Co., 2 O. K., Q. h. D. 647. TIuh case Inia been 
 carriuil to appeal. 
 
 [Soo47 Vict. c. 30, 8. 11.] 
 
 (b) Ohjfclions to A want. 
 
 Tho court hft^ no jnriHiliction to act asMe an 
 ftwarl iniilo iiinliir the ll.iilw.iy Aot of 18(W (31 
 Virt. I'. 2S, I).) ; but lieM, that oven wi!re thuro 
 jiiriNilictiou tUo court wouhl im', bnvu intor- 
 
 (i. I'owi'f of Iti-ci'iivr Ul Aciiiiirf Rii/ht nf Wnii. 
 
 .Sen (iiHiili rliiiin v. '/'ornilo iiinl .Vi/ii'^iiin/ It. 
 II'. f'o.,'JH('liy. •2I2, p. (I!M. 
 
 111. t'DN.STKICVriltN OK Il,\ll,W.AVS. 
 
 I. IlijIiirdiiM. 
 
 (a) ItaUiOiVjH liiinnlnij on. 
 
 .\ iiiiiiiii'ipility liny tile a bill to emnpel a r.iil- 
 way I'ompiny to pit streets ami hi;5hwiy< iin- 
 propi'ily traverseil by their liiii' of railway in 
 ^'noil ii'piir, ainl will not be restrieteil to pro 
 I'liiiiliii:^ bv iinlii'tni'int or inform itioii. F^iirloii 
 t'lilh V. iV/o/i.i li. ir, Co., 'J'.M'hy. 4. 
 
 TIk! plaintilTH, a iniinieipil corporation, lileil a 
 bill seekinj,' to reHtraiii the ilufeinlants, ar.iilway 
 emnp.iiiy, from tresiiaHHinn by running their 
 tr.ii;k .aloiijr one of the Htreet.s of the iiiiiiiii'ipal' 
 ity without the eoiisi;nt tlier(!of, thus iiiipeiliiij^ 
 trallio, in cmitrivvuntion of the Kiiilwiiy .\et, C. 
 S. ('. e. (ll), s. I'J, Hiib «. I : llehl. tli.it'hy virtue 
 of the .MiiiiiL'ipal .\et tlii;rii is hiu'Ii power of 
 iniii i|,;i!iiieiit, eoiitrol, &i!., bestoweil up in muni- 
 i,'i|)alitius, iiiil such a ri!spmisil)ility east upon 
 thi'iii as to justify them in intervening,' on b.'half 
 of the iiiliabit'iiits for the presi;rvation of their 
 rii,'hts : -iSemble, b it for the linLtua^e iisoil in 
 tiiielpli >'. The < 'an.iila. ( 7o., 4 ('liy. li.'ili, the proiicr 
 fr.'imeof the suit woiilil have been by way of infor- 
 initioii in the ii.iineof tin; attorney -general, with 
 the corporation as i-elatoi-H. lit. 
 
 I'er Arnioiir, J., tlio jury wore riglitly ilirecte.I, 
 uinler the tacts stateil in the report, that the ile- 
 fonilants hail laiil down the track, on which the 
 accident happened, in the (!ity of Ottawa, with- 
 out authority, it being iv third tiiiek or switcii 
 for use in oonnectioii with their station, for |)ur- 
 posesnf shunting, Ac., and if illegally laid down 
 no aeiiiiiescenco, except by by law, would make 
 it rightful a.s against the plaintitF. I'er Kai^arty, 
 Vj. J. Having boon there for many years with 
 tho knowledge and aei|uiesci;iice of the corpora- 
 tion, itn existence could not ahnie luuko defen- 
 
ii7(> 
 
 niiciit ill i)i)cNtiitn 
 
 r tint Ht itlltl!, till! 
 
 Iliivill); \)ur\i iili- 
 
 y two iirl)iliMti>r.s 
 it\viii-ii, ami Hiili- 
 •II I'liiiipliiMl with. 
 
 'I ( 'illKt'liI (.'flllfill 
 I V(. 11(1 foot. \.('., 
 
 Ill «i>i'('ili(' (XT 
 liiiri ilaiii'iL;i'H for 
 iti ; tliiit till! Hiiin 
 
 •IS to slitnv !iny 
 •t on till' i»irt of 
 lii'tluT, if hIk-wii, 
 H |iroci','iliiii; ; 
 I'i'ii taki'ii iiiiijrr 
 i:iiiii'iit, wlictlicr 
 iiijii In- rcviiiwcil 
 :»S Vict., .!. !.•). 
 
 ('o.,:>.\ II. i;{. 
 
 iillnni /{. W. (;•. 
 itiirio It. ir. Co., 
 
 IV /i'iiilif nf If'///. 
 mill yi/iinniiin II. 
 
 U.vii.w.vv.s. 
 
 \iixj on. 
 
 II to i:oTn|ii>l II r.iil- 
 iiiil lii^liw i\M iiii- 
 iiK' of rikilw.'iy in 
 rt'Htrit'tuil to |)io 
 
 III itidii. Fy'inlun 
 i VAiy. 4. 
 
 or|ior:it!iin, lilod a 
 finliiiits, II r.iilwiiy 
 »y niiiiiiiig tlK'ir 
 of the iiiiiiii<-i|):il- 
 iif, thus iiiipi!iliii;{ 
 t Kiiilwiiy .\('t, ('. 
 •1(1, tli.it l>y virtiif 
 is Hiii'li power of 
 
 ^riweil ll|l III llllllli- 
 iitility east iijioii 
 rveiiiiig on l».tliiilf 
 iiH'viitioii of tlii'lr 
 
 I iiii{ii.'ig<i il.suil ill 
 ly. (m(!, the pniiici' 
 
 II liy w 
 
 the proiicr 
 ly of iiifoi- 
 
 •iiey-gi'iier.il, with 
 h. 
 
 e rightly dinjeti'.l, 
 iport, tliiit the lie- 
 iiek, on which the 
 
 of Ottawa, with- 
 I tiiKik or switch 
 r HtatioM, for pnr- 
 llogally laid down 
 •law, would make 
 iff. I'or llagarty, 
 
 many years with 
 cu of the corpora- 
 I'liic make dufcn- 
 
 r, 
 
 I I 
 
 hAIIAVAYS AM) IIATLWAV COMPANFIX 
 
 07 •< 
 
 il.niitu lialile, lint it was properly left an a cir- 
 eiliiist nice to lie coiisiilercd liy the jury, /.'If, 
 iiiliiiiiililriilor of Lilt V. Till' SI. I.iiin-i iicr niiil 
 Olhiini /,'. II'. ir',,., ,(„,/ //hihiii V. Till- SI. /.iiir. 
 rnirr iiinl (Uliiii-n It. 11'. /'„., | ( (. |l,, C^(. \\. \). 
 .'il.'i. 'i'liis <!aHe is in apjieal. 
 
 Wlicnt a railway eonipaiiy constnictrd their 
 rnilw ly along ,a liigliw ly in a iiiiniicip ilily, tiie 
 coniicil whi'ii'of wi'ic not foriii.illy applied to for 
 h'ave, lilltHI|lis.'i|i|eiitly p issi'd ,1 resoliiMoli lloli 
 
 fyiiig the r.iilw ly coinpiiiy to lill up tint clit^'li 
 exiitini; on liotli sid.i of ♦''■■ r.iil\v;iy, and to put 
 down proper cnniiiigs : llilJ, tji.it the corpor- 
 iitioii li.'id tlieiiliy adiiiitlcci that the raihviiy 
 coinpaiiy wire I iwfiilly in iipatioii of the high- 
 way, a'ld eoulil not aftciwurds oliject. Tin' 
 f'ui-/iiirii'iiiii III' l/ii Tiiiriinliiii III' I'liiilifiihi V. Till 
 
 Ciuinilii Ciiintl /{. ir. r,,., ;i (>. I!., (hv. 1». .')0:i. '. 
 
 ■ I 
 
 The leave of the niiinii-i]iiil or local iiuthoritiefi ' 
 reipiireil liy ^] N'jct. c (!.S, I).. Iiefore a railway ' 
 is I'lirii'd along an exisliiig highway, may he 
 gr.iiited ,it .iny tiiin' whelhi'r lieiore, dining, or 
 Mft''r the I'liiistni ■timi of the r.iilw.iy, and need i 
 
 not n ssarilv I"' given liv l,v hiw : .Smilile, 
 
 that i!. S. (».■(•. 171, H. '.'77, e'liaetilig that the 
 liowi'rs of township cuiillrils s'lall liit exerciseil 
 liy liy law, iiiiimI^ Ih' I'oiistriieil as i<'feiriwg only 
 to the exercise of |iowii M of the council under 
 the Miinicip.al .\it,.ind not to powers which may 
 he excrcJHcd iinilci' .i spcjal .\ct p.isscd forothur 
 piirposrs or liy another Icgisl.itiire. //,. 
 
 H"ld, also, that the corporation h.iving stood 
 hy wiiile the r.iilw.iy wia constnictitd, and suli 
 scMpicntly for upwards of live years, while it was 
 in opcr.ifjon, and li iviiii; .also l,y the resolution 
 afores.iid, |iroeurci| further ex])eiiditiii'e hy the 
 t'oiiipaiiy, were lioiind liy acpiiescence, and could 
 not now III liiitain an action for the removal of the 
 railwiy from the stritet. A I'orpor.ition may he 
 lionncl liy .icpiicsceiice .is all in lividiiil in.iy : - 
 t^ii.ere, whether such ac.piiesc 'iice would have 
 availi'd as a legil jiHlilii- ition for the defcMidants 
 on an iiidicdneiit for .i nuisance at the Huit of 
 the Crown. ///. 
 
 hound to fence, HO as to make the defeiidiuitll 
 lialile. Dniiilii.^M \. Till 1,'riiiiil Tninl: U. \V. Co., 
 r> A. R. fiS-). 
 
 (d) (Inli-ii. 
 
 The ilefeiidaiifs' line of r.iilway r.m through 
 the plaintilF's f.inn. and the iiliintiir 's m iro es- 
 caped from a lii Id .idjiiiiiiiiu' tlie raihv.ty through 
 a gife opposite a farm crossing which the defeii- 
 il lilts li.ei constnii'tcil, anil wlii<li wis out of ro- 
 ji.iir, and was killed on the railway : Held, that 
 It WIS the duty of the defendants to keep the gat«! 
 in repiir, and that they were liahh', whether 
 they were lioiind to construct miu'Ii fariii-crossiii|; 
 or not. .l/'fc/i/,,/ V. Till Urnml Tniiik II. W. Co., 
 I (). U., (l H. J). (;i!>. 
 
 (e) t'ltnn ('rnsxhirjH. 
 See Sill, head II. 2, (li) j.. (171. 
 
 2. I'lirlUiiJ /•'/•«;/.■« ii/ n.iiU. 
 
 .Soo .MiiiikhiiiiHfv. The. (Intnil Trunk li. W. Co., 
 8 A. I{. CT, p. OS'i. 
 
 (1)) liriiliiLi Oi'i'i: 
 
 .See r/;/,s,„j V. Till' Mhllnwl R. W. Co., 2 (>. U. 
 058, p. OS I. 
 
 (o) Finos. 
 
 The jilaintifT stieil the clefendanti for the Iohs 
 <if certain cattle which had esc.iped to their re.ad 
 hy reason, as ho alleged, of t'ie neglect of the 
 oompaiiy to fctnco, and were killecl hy their train. 
 It appeared that the plaiiitilF owiieil land on 
 I'ither siile of the defeiidints' railway, hut the 
 Toronto, (irey, and Hriico H. \V. , which lay to 
 till! north of ilefeiidaiitH' railway, nml had also 
 liet'ii taken from his farm, ran lietween his land 
 anil ditfeiidants' railway : -IFcId, upon the facts 
 stated in tint reprirt, tlr.t there was no eviilence 
 that the c.ittle had re.'uthed the railway from the 
 Hoiitli Hidit ; and the fact that the Toronto, (!rcy, 
 and Hrnce R. W. Va>. had iieglectecl to fcMiee diil 
 not give the ]daiiititr, in respitot of the occupa- 
 tion of their land liy his cattle, the ntatiiH of 
 that companv for the time, as adJHining pm- 
 priutura, agaiimt wlium only the defendaiitn wuru 
 
 IV. iN.M'UIIiS I'O I'KnsdN.S AND (JaTTI.E. 
 
 I. At Inli'riteriiim of ItitUifnijH. 
 
 Tint Or.ind Trunk Railway crfisses the Groat 
 Western Riilway, ahotit a mile itast of the ttity 
 of liondoii, on a levitl crmsiiig. On l!)tli June, 
 lS7(i, a <!r.iiid Tiiiiik train, on which plaintiljr 
 was on hoard as a conductor, hefore ■•rossiiig, w.s 
 hrought to a stiinl. The sigiril man, who waH 
 ill charge of the (trossing ami in the employnieiit 
 of the (iroat Wi'stern I' lilw.ay ( 'oiiipaiiy, drop|iui) 
 the soinaphore, and thus authori/ed the (Jrand 
 Trunk train to pi-oceecl, which it diil. While 
 crossing the trn'k, appellants' train, which had 
 not liecii stopped, owing to the acoiiluntal hurst- 
 iiig of a tuhe ill air hr.ikes, rr.ii into the Oraiid 
 'I'riink train and injured plaiiitilF. It waH shewn 
 tliAt tlntse airlir.ikes were the host known ap- 
 iiliaiii;es for stopping traiii.s, and that tlioy had 
 
 1 II tested during the il.iy, hut tlmt they wero 
 
 not applied at ;i sullicient clistaiice from the eros- 
 sing to onahlu the train to he stopped hy the 
 h.ind-hrakes, in cane of the aii-lir.ik 's giving 
 way. (.!. .S. ('. c. OH, h. U'J, (R. S. O., c. ItJ.-i, 
 s. yO) enacts that "every railway uom|iaiiy shall 
 Htation an olliccr at every point on their line 
 crossed on the level hy any other r.iilway, and 
 no train »ha!l proceed over such crossing until 
 signal has hueii made to the ciuidiictor thoroof, 
 that the way i.s clear." Sec. 14.'{, enacts that 
 "every locomotive • • • or train of cars 
 on any railway shall, hefore crossing tho track 
 of any other r.iilway on a level, he Hto|)peil for 
 at litast the ripace of three minutes :" — Held, that 
 the ap)iellaiits were guilty of negliu'ence in not 
 applying the air-hrakits at a siitlicient diutance 
 from the ctrossing to eiiahio the tr.iiii to ho 
 stopped hy haiid-hr.-ikes in ea.se of the air hrakes 
 giving way. That there wr«s no evidence of 
 (tontrihutory negligence on the ]Kirt of the (Jrainl 
 Trunk railway, as they had hrought their train 
 to a full stop, and only procoeditd to cross ap- 
 pelliints' track when aiithori/.ed to do so hy the 
 oliiuer iu ckargu of thu Heimi]iliore, who waa u 
 
679 
 
 ItAlLWAYS AND RAILWAY CUMPANIES, 
 
 cm 
 
 c 
 
 
 > V'' 
 
 wrvant of tli«' fin.it Wt.slini IJ.iilway ('uniiumy' 
 'J'lif (•'rial t\'iKlii-ii I!. If. Cii. 11/ < iiiKii/ii V. /linini 
 :\ S. C. U. i:.!l. AHiniiiiiK S. C. •_' A. 1;. (II i •!(» 
 
 2. A I Jt'lHlil ('I'OSHilKIS. 
 
 IIl'M, tliiki a inert' tiaik i idhsiii^', mi u mail nr 
 way (III a raih\ aj cuiiiiiaii^ '» nw 11 ;;i<iiiiiils foi' tin.' 
 coiivcnit'iii r (if |iaH.s('iig('i's ami iiIIk is in ^(iin|{ t(i 
 iukI frdiii tlic .-'tatiiiii on railway Iiumiikmn, i.s not 
 a ])ulili(' criissin^', lii^liuay, or place, \nlliiii < '. 
 8. ('. c (id, H. 104, .so as to Niilijei.t the eci|ii|ialiy 
 to the rei|iiiriinents ol thai .seetion of liii^'in^' the 
 liell or soliniliiiK the whixtle w hen a|i|il'o,i(liiii)^' 
 Much eroK.-iii^ ; Imt, .si iiiKle, apart fmni th( .sta- 
 tute, care must he taken u lien starling' their 
 cngilies from the station. Jliiunlt v. Tliv ilnintl 
 Triiiik n. W. fo.,:n>. \\.,V.. v. D. 44ti. .See 
 .V. V. 7 A. I{. ITO, p. lIM). 
 
 Tlie respiihileiilH, tht; phiintiirs in tint (;(iiiit 
 lielow, Were lawllllly <lll\iuj4 ill their eailia^e 
 ahing the hi^huay, ami when within alioiit I Ifi 
 feet (if the i'i'o.s.siii){ of appellants' lailw.iy a train 
 ]i!U<8eii, whieh ll'ij^hti ll( (I the horse e.iiisin^' it to 
 Uiril ami upset the vehiele, liy uliieh the (ihiili- 
 till'H Kiistaineil serious injury. It wasslu wn that 
 tlie driver of the locomotive hail omitteil to give 
 the usual statutoiy signal, liy whistling or unk- 
 ing u bell, when at a liistaneeof ei^^hty roils Irolii 
 tiiicii cro.'-sing. In an action liioiight against the 
 railway company a venliet was foiiml in hivour 
 ol the plaiiitill's, which the Common Pleas |)ivi- 
 hioii, 32 CI*. :{»«>, (Wilson, C. ,1., ili>seiitiiiK) rii- 
 fused to setasiile. On appeal this jinl^ii.ent was 
 Htbrineil, ninl the appeal ilisniisseil with costs 
 (liurton, .1. A., (lisseiiting. ) I'er lluiton, .). .\., 
 the general wonls iiseil in the statute must, hav- 
 ing regard to the general provisions tliereof, lie 
 inteiuieil only for tliose actually crossing the rail- 
 way and injnied when so crossing, or who in the ' 
 exercise of reasonahle diligence and care, hut in ' 
 endeavouring to escape peril, havi^ sustained in- ' 
 jury. The suundiiig of the whistle or the ring- 
 ing of the lx:ll was intended as a warning only ' 
 to those uliout to cross the track of the railway. 
 Hosmhtrijir v. Oniml Tniiik II. IT. To., S A. U. 
 482. Allirnied liy the .Supreme Court. 
 
 The train wiis backing at the time the accident 
 happened. Per Arnicur, il. The jury were 
 riglitly directed that defeiidants w«-re hound to 
 ■ound the whistle ur ring ilie hell, when the 
 nearest part of the train was eighty rods from the 
 crossing; and having regard to the fact that they 
 Lad without authority increased tlu; numlier of 
 tracks there, it was also right to tell clieni that 
 it was for them to say whether, considering the 
 nature of the crossing, they should not have 
 stationed a man there, or taken some other than 
 the statutory jirecautions. I.ttt, Adininistnt/or 
 vf Lett V. 77(c St. Liiwi-fiicc nuil Olliiivit H. W. 
 Co. and lliuton v. Tin St. Ldivnncf ninl Dtliiirii 
 li. W. Co., I O. K., Q. B. I). 545. This case is 
 in apiMiul. 
 
 3. nunn'ing Iltfi')\sili/. 
 
 Scinhlc, that sec. I()5 of C. .S. C. c. (JO, re((uir* 
 ing 1 person to bo stationed on the last car in 
 the train, applies to the station grounds of rail- 
 
 way eoni]iaiiieH in cities, towns, and villa^,eM, as 
 Well as to th(! limits outside of such station 
 giiiiinils, /triiiiiit V. Till (inriiil Tiiiiik II. IT. 
 Co., ;io. I!., (\ P. I). 44(1. 
 
 The defendants were r('(|uired hy law to idatioii 
 a man on the last car of every train moving re- 
 veisely in any town, to warn persons st.iinling 
 on or crossing the track of tlu! approach o| the 
 train : Held, that the defcmlants did nut coin- 
 ply with this dirt ctiiin hy having a man at the 
 front end of the last car, where lie could not see 
 ]iei'soiis crossing the track. In this ease there 
 wiis no brake at the reitr i ml of the list car. 
 The brakesman (>n IIk^ last car, seeing the track 
 dear a few minutes hefoie the accident, went to 
 the front end, and the plainlill' then attempting 
 to erosH, was injured :- Held, evidence ol negli- 
 gence to go to the jury. Linn/ V. Miillainl li. 
 
 w. Co., ;<(». 1;., (^ li. 1). (;-.':i. ' 
 
 See Lett, Aibiiiiii.ttrnlur of Lvtl v. Tliv SI. 
 Lnirn liri' iiiitl IHInirn li. 11'. Co., niiil lliiiloii v. 
 'I'lii SI. /.tiirriiin iiiiil llllnini li. IC. Co., 1 (I, 
 |{. ol'i, p. (iT'J. 
 
 4. CiilllrUnilfillJ Si 'jl'iiliiin . 
 
 The .servant of the plaintifl' was in charge of 
 an omoihiis ninning to and from the st.ition of 
 the delelidaiits' railway, and on tliir evening in 
 i|iiislioii vtas atleiiiling at (ieor^etown station, 
 at about tell feet llom the track, but w a.v iiiiaMe 
 to sei^ along the railway in either direction liy 
 reason of lioiises intet\eniiig. Hy le.iviiig the 
 oniiiibiis, liowiM'i', and going to the track he 
 could have seen an approui'liing train ; but omit- 
 ting to take this piecaiitioii, altlioiigh .iwaic tli.ii 
 a freight train was then on the track mar the 
 cioBsing, he started oil' to cross it, and did not 
 hear or seeanythingot the approach ing train until 
 within alioiit four feet of liini,w hen he w as iinahle 
 to avoid it, and the omnibus and iiainess were 
 consider.ably damaged. It vvas not sIkjwii that 
 the driver of the train had given any warning of 
 its approach by soiiniling the whistle or b' II on 
 its ncaring the part of the track where it erosi-eil 
 the road to the station. At the trial tlii! plain- 
 tiir was nonsuited on tlu^ ground of the eontiibu 
 tory negligence of the plaiiitill's servant : Held, 
 on appeal, reversing the judgment of the coiiiit) 
 court, thiit the (|Uestion of eoiitributory negli- 
 gence had been iinpropiM'ly w itlnlravvii fioni the 
 jury, and that a new trial iiiiiHt bi< had in order 
 to submit that i|Uestion to them. Iluurlt v. 'Tin 
 dniiid Tniiik li. II'. Co., 7 A. 1!. 470. Sec .V. 
 C. 3 O. 11. 440, p. 07y. 
 
 The plaintiU's, husband and wif(% were on a 
 train of the defendants, going to I.efroy. The 
 conductor, before reaching the station, announc- 
 ed that the next station was Lefroj'. On ap- 
 proaching the station the train, according to the 
 plaiiitill's witnesses, was slowed, hut did not 
 stop. the husband got otr while the train was 
 moving slowly, and his wife, seeing that the 
 speed was increasing, and that they were passing 
 the station, sprang after him, though he had let 
 go of hi^r hand, and told her not to jump, and 
 was injured. It wa.s left to the jury to say 
 whether she had actt^l iinpriidciitly in so doing, 
 and they found a verdict for the plaiiitill's : - 
 Held, that the i|Uestion of ciiiitrihutiuy ncLdi- 
 gence was properly left to theiii, and the court 
 
08O 
 
 OSl 
 
 RAILWAYS AND RAILWAY OOMPANIES. 
 
 683 
 
 vilIa)^i'M, nn 
 It'll htatiiiii 
 
 (//// /;. ir. 
 
 toittutiiiii 
 iiiii\ iii^ ru- 
 Ht.iiJiliiig 
 
 IK'll III tliu 
 
 lilt until- 
 liiili at till* 
 
 lllll IKit H(!U 
 
 i!\xv tlicre 
 i: l.iNt (.'iir. 
 ii llir tiiU'k 
 
 it, Wt'llt to 
 
 atti'iii|itiiig 
 III iii'gli- 
 ]li,ll<in,l It. 
 
 . Tin' SI. 
 Ilillliill V. 
 
 I cllilljir (if 
 ! Hl.itMlh lit 
 
 iMliiiit; ill 
 
 Wll htiltillll, 
 
 u .I." iiiiiiMi' 
 irrrliiJii liy 
 lia\ iiij,' tlir 
 
 ir tl'Urk III' 
 
 liiit limit- 
 li .'l\^al'l' tli.'ii 
 I'k iiriir till' 
 anil dill not 
 i;,' traiiiiiiitil 
 J waH iiiialili 
 
 allK^HS Will' 
 
 xliitwii that 
 uai'iiiiif,' of 
 (• or li. II nil 
 te it rri'MM'il 
 !ll till! jilaili- 
 liu coliti'iliil 
 lilt: I Kill, 
 
 f till! L'llllllt) 
 
 iitory iicgli- 
 til fi.ini the 
 liail in nrilcr 
 nnrlt V. Till- 
 70. See S. 
 
 , ■«'i;rc on a 
 rfi'oy. 'I'liu 
 ill, iiiiiiiiiiiii;' 
 ly. On a|i- 
 riling to tiiL 
 
 lull dill lint 
 
 ic tiuiii Willi 
 ig that tliu 
 vei'c pa.ssiiig 
 I ho had let 
 I .juiii|i, and 
 jury to nay 
 in Mil doing, 
 |ilaiiitillM : — 
 iitoiy iict'li- 
 d tliu cuU'l't 
 
 ri'fiiHi'd to (llHtiii'l) tlio verdii't. Kili/nv 't u.r v. 
 Snrlhm, li. \V. ('„.. .» (I. |{., li. H. !». UOl. 
 ThiH oiiHi! ImH lic'cii carrii'd to ii|ipuikl. 
 
 Si'i- Mil.orn) V. Thi f'liiKi'lit Cnilmf l{. W. 
 Co., :«'-'('. 1'. \V1\, ;i. (1S2. 
 
 t>. SfijU'rt til Rijin\r F< III-''" or Oolon, 
 
 Sec .Miir/ilii/ V. 77(c liriiinl 'I'niiik If. W. Co., 
 1 (). I{. tint, |i. vr,H: IhwiihiHH V. The Umnd 
 Trunk l{. W. ('o,, A. II. /■.«.•., p. (578. 
 
 (J. I>lHIIII.JPK. 
 
 'I'lii' |ilaiiiti(TniUMl innliT f-ord rdiiipbiiU's Act, 
 nil lit'liuli of liiiiiHi'lf .'Hid liJM I'liildi'i'ii, for till- 
 
 death lit liin wife, oi'eisiiiiieil liy the defeiid.'llitH, 
 The wife had Siiliie Ne]iar:ite i-Ht'ite fl'iilii w llii'h 
 8lie derived an ilieiilne, liiit the jury .illnwed no 
 (laiingi's ill re»|ii'i't thereuf. It nan not shewn 
 that till' wifu all'iii'ded any |ieeiiiiiaiy iimii'-t.'iiiee 
 cither to her hiisliand or her eliildieii. The jury 
 found tor the |ilaiiitil]' and appni tinned the dam 
 ages .'iiiiiiiig^t the plaiiititr and Hoiiie nf Imh eliil- 
 (Inn : Held, Ariiioiir, .) , diHseiitiiig, that the 
 verdirt wim wrong ; for the |ilaiiitiir was not en- 
 titled I iller fill hini'-elf or the ehildnn to reeover 
 coiiMieiis'itiiiii for anything luit peeiiniary Iobh, or 
 the lii^H of .'i reasmialile jiroli.'iliility of peeiiniary 
 helielit : I'er .Xl'liiiilir, .(. The loss to lie eoiil- 
 pcii-iati.il JH the loss nf some lieiiefit or advantatie 
 eiipalih' of lieing estimated ill limiiey, jh dislin- 
 gllishifl frnlll II Hiilatilini for Wnllllded feelinUH 
 and loss of eomp'iliioiisliip ; :inil the Inss to till! 
 hnnliiuid of the wife's perfnrm.'iii f her house- 
 hold ililtiitH, and to the eliildi'eii of u mother's 
 odiie.'ltioll, liru liotll losses whii'h eail lie eHtimated 
 
 by a jury. Lilt, .\i/i'iiiii.ilriiliir <;/' Lift v. Tin' 
 St. Liiirrriiff tiiiil Oltiiirii If. W. Cn. mul lliiitoii 
 V. Til ■ SI. Linnrncv iiwl IHIini;i If. If. T,)., 1 (>. 
 R. , Q. It. 1 1. M,t. This case is in appeal. 
 
 'I'lie plaintili', aa ndiiiiniHtratrix, Hiii^d the de- 
 f«;iidaiitM. under '11 Viet. e. '11, ». 7, '»., fur the 
 de illi of her illegitimate Mini, a lirald'siinn on the 
 defendants' railway, who was killed liy lieiiig 
 carried ag linst 'i liridge. not of the height reipiired 
 by that .Vet, while on one of their trains pissing 
 lindei'iieatli it. Till! lirid^e lieloii;;ed to another 
 railway eoiii|iaiiy, wliieli had the riitlit to eross 
 till! ili'leiidaiitH' liiK! ill that w.ay, and though the 
 time allowed liy the statute for raising tlieriridgii 
 h.'id expired they had not done ho. The jury 
 fdiiiid til it the defiiiidants had lieeii guilty of 
 negligeiiei! ill not raising, or procuring to lie 
 raised, the liridgii : —Held, that the pi tintilF was 
 not eiltill(!'l to rueovcr (1) lieeilisi! see, 7 of the 
 Aet ;ippli(!S only tn liridges within the eoiitrol of 
 the eoiiipany whose servant has liueii injured, 
 and Vl) the Aet was intended to give no greater 
 right III rcenver th in l,nrd (' iiiipiieirs Aet, and 
 thenfnre the plainlilF'.s rel'ltiniisliip to tlio de- 
 ceased prevented her reeoverv Uilmin v. Mil- 
 land If. \V. Co., 2 0. R., Q. B. \). 058. 
 
 7. Other ('u.^eM. 
 
 PliiintilT, while standing on the platform at one 
 of del'eiiil lilts' Ht'itions, had Ins eye injured liy 
 the explosion of a fog signil, wliieh had licuii 
 pl leed on tile track. Tin' only evideiie ' Lrivcil 
 was, that curtain servants of defend had 
 
 these fog Hignnls in their [losscHBion for lawful 
 pur|iiisei<. lllll that no one to the knowledge of 
 several of the defendants' cniplnyei'M, who wrro 
 called as witnesses for the plaiiitiir, placed thia 
 one on the track, and that it was wlinliy iiniieccH'- 
 Hiiry for defend mis' purposes ; niid it appeared 
 not iiiipiiH>iilile that it iiii'^ht have lieeii iilitiiiiieil 
 from defendants' Mcrvants by some third jinrty, 
 or might li.ivc been put there by a hci vaiit of dc- 
 Icnd.'iiils for a frolic : - Meld, that a iioiiHiiit was 
 properly directed, Jiiiiin V. (iruml Trunk If. 
 ir. Co., 45 l). li. ISCJ. 
 
 Till! iiliiiiitiir, a workman employed by the 
 (ir.'ind rriiiik itnilway rompany, was injiiri!(l 
 while in disi'har;,'!' of his duties, by reaHoii of hi* 
 foot having been ennglit in one of the frogs of 
 the rails, wliieh was not paeked in the manner 
 pi'cs.rilied by U \iet. c. •-"_' (U) :- -Held, that 
 the (iraiid Trunk l!ailway being a I'omiiiioll 
 llailw.'iy, and within see. <,)'^, .No. 10 (a) of tlio 
 li. .N. A. Aet, was imt .'iireetcd by the statute, 
 wliiidi )iroleHseil only to apply to railway com- 
 panies in respect of which the I'rovincial l,egis- 
 i.'itiire had aiilhoi'ity to enact hiicIi provisions; 
 and theretore, that the del'endalitH were not 
 lialile. Miinkliiin.li' v. Tlir tJnind Trunk If. W. 
 I'll., 8 A. I!. t;.'t7. 
 
 V. Kinr, FnoM Knoinks. 
 
 In answer to a ipiestion whctlier the plaintiff 
 had been guilty of cniitribiilory iic>;ligence in 
 jiiling his liimbcr so mar tin: track, or by allow- 
 ing the saw dust to remain mi it, or by not hav- 
 ing siiHii'icnt apiili.'iiiccH to extinguish tiro. If 
 HO, could the defi'iidant by the use of ordinary 
 (^•irc and diligciici! Iiavi! prevented tin? injury, the 
 jury answered : Not as to piling lumber or oa tn 
 saw dust, but somewhat as to appliances. Wo 
 think the defendants (tiuild li.ive prcv(uited tlia 
 lire, and th it the plaintifT is liiititled to a verdict. 
 The plaiiititr it.'ippearcd li.id for ni.iny yeari piled 
 his liiinbcT '.ipoii defendants' land, with their as- 
 sent, within a short dist nice of the track: -Held, 
 that the pl liiititr w.'is not boiiiid to jirovidc appli- 
 ances to guard aL'ainst defendants' negligence. 
 Mi-Litrin V. I'.iniuln I'lntral If. 11'. Co., li'i C. P. 
 
 •,vi\. 
 
 In .'in action of negligenci! for the destriictiou 
 by lire of a ipiantity of liiinber owned by tho 
 plaintili', and which by leave of tho dcl'eiidauts 
 lie liad iiiled clo.se to their track, caused, as thu 
 plaintili alleged, by sp.irks emitted from the 
 Biilokc stick of one of the locomotives belonging 
 
 lU 
 
 ikc stick 
 to the defend lilt compiiiy, the jury at the tria 
 fiiiiiid that the lire was c iiisi^d by the imiioifcct 
 or defective construction of tli! smokestack, the 
 cone being placed too close to tin; netting, and 
 by reason of the bonin't rim not fitting siilficient- 
 ly eliiH'! to the bed. Upon a motion in banc to 
 set asid" the verdict cnt.'riid for the plaiiitilF, tlio 
 court, upon the evidi'iee set nut in the (!'isc (32 
 (J. I*. :»-'l); -Held, tint the liodiiig of the jury 
 was fully supported thereby, and on appeal ti» 
 this court from tint decision, the court being 
 (!(prilly divided, the judgment was .•illirined, anil 
 the appeal dHinissed, with costs, .\fter the oc- 
 ciirreiice of the aeeideiit which o:iiis(!d the de- 
 striictiou of the plaintilF's liimb'r, li. an eiigino 
 driver of the defend ints, and who was in charge 
 of the locomotive (No. 5) on tie- day the lire oc- 
 curred, made an entry iii whit was termed tho 
 

 IMAGE EVALUATION 
 TEST TARGET (MT-3) 
 
 1.0 
 
 1.1 
 
 |m, 
 
 ■ii Itt 122 
 
 :^ U& |2.o 
 U |L6 
 
 6" 
 
 FliotDgraphic 
 
 Sdaices 
 
 Corporation 
 
 
 
 23 WBT MAIN STRHT 
 
 WltSTIR,N.Y. 14SM 
 
 (71«)t72-4S03 
 
 '^ 
 
'i 
 
 
 iV 
 
mm 
 
 68$ 
 
 RAILWAYS AND RAILWAY COMPANIES. 
 
 684 
 
 
 
 proof of R's (lc;i 
 that engine Ki.. > •„ 
 evidence was gi . .n 
 wlieu it was in the -sa^ 
 it hud thrown (jut 
 Spraj/ye. C. J. O.. 
 
 repairs-Look, kept in the defendants' sLojis : 
 " B<jttoni rim of bonnet in stack wants making 
 tight " * IScreen wanted in U(jnt of ash pan." 
 At the trial B. was called as a witness on the 
 part of the plaintiil, and proved his having made 
 such entry in the usual ct)iirse of bis duties. I'er 
 Spragge, t'.J.O., and Hagaity, C'.J., such entry 
 was properly produced and read to the jury. Per 
 Burton and I'attersou, J J. A., such entry or re- 
 port was merely a narrative of a past occuirence 
 or something in tic ojiinion of B. rttjuiring atten- 
 tion, and in any view could onl}'!)!' receivalile as 
 evidence against the co,r.pany, if at all, upon 
 'Wliitli a view of shew ing 
 iu> defcctivelj' constvuited, 
 '';at on previous occasions 
 • r. improved con<lition, 
 ^.;iia; causing fires. Per 
 !i.d x'agarty, C. J., such 
 evidence was ]>roper'y see;. able: — Seniblt— Per 
 Spragge, (.'.J.i)., aip; I'aUjrson, J. A., although 
 a, party to a cause may lie entitled to call for the 
 production of documentt;, in order to obtain dis- 
 covery, it does not follow that the contents of 
 such documents are in tht nistlvcs evidence. .S'. 
 ('., 8 A. 11. i5tI4. Ailirmed on appeal to Her 
 Majesty in Council. 
 
 Vi. Carriage of Goods. 
 
 1. LiahU'itii Beyond Dffendunts' Line. 
 
 The plaintiff slii))p(d goods from St. John's, 
 Quebec, to ]Jundas, Ontario, to be carried from 
 hit. John's to Toronto by the Grand Trunk Hail- 
 way Com)'any, who delivered them to the (iireat 
 Western Railway Company, who carried the 
 same to Liundas, where the goods arrived in a 
 damaged state. The plaintifl', being in doubt as 
 to whicl) company was liable, there having l)een 
 a separate contract with each, joined both as 
 defendants : — Held, afiirming the order of I'roud- 
 foot, J., who had athrmed the order of Mr. Dal- 
 ton. Master in Clianibeis, 9 P. li. 80, that the 
 case came within Itule 04, and that the plaintifT 
 had a right to make both companies parties. 
 Harvey v. Grand Trunk B. M'. Co. nnil Great 
 Wentern H. W. Co. et al., 7 A. 11.715. 
 
 2, Special Conditious. 
 
 (a) Liahility as Carriers or }yarekousemen. 
 
 On the back of the request note and shipping 
 receipt given and received by vhe plaintiff on the 
 shipment of goods from Montreal to Toronto, 
 and the freight advice note received by him on 
 the arrival of the goods at Toronto, and specially 
 referred to on the face thereof respectively, were 
 a number of conditions under the heading; 
 "General notices and conditions of carriage," 
 one of which was that the company should not 
 be liable for any goods left until called for or to 
 order, or warehoused for the convenience of the 
 parties to whom tliey belonged, &c., and that 
 the warehousing of all goods would be at the 
 owner's risk and expense. On the arrival of the 
 goods at Toronto they were placed in the defen- 
 d.iuts' warehouse there, and the plaintiff, on re- 
 ceipt of the freight advice note called at the 
 warehouse, and obtained permission to leave them 
 there, nothing being said about storage. The 
 foods were subsequently lost, and the plaintiff 
 
 j brought an action .against the defendants to re- 
 
 ] cover their value :— Held, that he could not 
 
 I recover, for although the defendants must be 
 
 deemed to have held the goods as warehouseiiicu 
 
 I and not as carriers, tlie terms and conditions of 
 
 J the request note and sliippiiig receipt, which 
 
 I constituted the contract Ipetwecu the parties, 
 
 I applied and bound the plaintiff, irrespective of 
 
 whether he had read the conditions or knew 
 
 their contents, and tlierefore the defendants were 
 
 ])rotected by the condition altove set toi tli. 
 
 iMayer v. Grand Triin/c li. W. Co., 31 C. P. -^48. 
 
 The plaintiff, who lived at !Meaford, sold a 
 quantity of barley by sanqile to one J)., a brewer 
 in Toronto, and .shipped same liy tlie defendants' 
 railway, consigned to l>. at lii'ock street, signing 
 a consignment note and receiving a shijiping re- 
 ceipt from the conij)any, which stiimlati d such 
 receipt should not be transferable, lint that as to 
 grain consigned to defenilants'elevator at Toronto 
 defendants would grant a negotialile receipt, and 
 was subject to certain conditions, .set out in the 
 report of the case. Tlie barley was duly carried 
 to Toronto and warehoused liy defendants in their 
 elevator there, under, as they conteiideil, the 
 right conferted therefor by tlie conditions; and 
 they then tendeied grain of the same grade as 
 plaintiff's, which D. refused to accept: — Held, 
 that the consignment note and shijiping receijit, 
 which constituted the contract between the par- 
 tics, shewed that a distinction was made lictw ecu 
 grain consigned to the defendants' elevator and 
 other grain; the conditions as to warehousing, 
 set out in the report of the case, lieing only ap- 
 jilicable to the foimer, and that the plaintiff was 
 therefoie entitle<l to recover the damages sus- 
 tained by the non-delivery of the specilic grain 
 shi]iped. Leader v. 'J'he A'ortheru li. 11'. C'-. et 
 uL, 3 O. R., C. P. D. 92. 
 
 See Erh v. The Great Wei>tern U. ]]'. Cn. of 
 Canada, 5 S. C. R. 179, p. (iSli. 
 
 (b) Other Cases. 
 
 To an iiction for the non-delivery of goods 
 delivered to defendants to be carried from Ham- 
 ilton to Toronto, tlie defeiulants set up that 
 they duly carried and delivered the said goods 
 to the plaintiff at Toronto, but that he did not, 
 as requireil by one of the terms of the special 
 contract entered into between the parties, give 
 the tlefendanta within thirty-six hours thereafter 
 notice of any damag- or loss, &c. ; — Held, tliat 
 the defence failed, as the evidence shewed tliat 
 the goods were never carried or delivered as al- 
 j Icged. A further defence set up was, that the 
 j plaintiff could not maintain the action, wiiich 
 I was in case, because he was not the owner of tlie 
 ! goods at the time of the shipment at Hamilton, 
 j having sold them to one H; — Held, also that tiie 
 i evidence shewed that he was the owner, for al- 
 I though there appeared to have lieen a sale, the 
 property was not to pass until the delivery of 
 the goods at Toronto. .Steele v. The Grand Trunk 
 R. \Y. Co., 31 C. P. 2G0. 
 
 The respondents sued the appellants' railway 
 company, for breach of contract to carry petro- 
 leum in covered cars from L. to H. , alleging that 
 i they negligently carried the same upon open 
 I platform cars, whereliy tie barrels in whii;h the 
 oil was were exposed to the sun and weather 
 
684 
 
 ulants to re- 
 could not 
 itB must be 
 u'Llioustiiieii 
 oiulitioiis of 
 icipt, which 
 tliu paitiea, 
 cspcctive of 
 lis or knew 
 iidaiits were 
 set toith. 
 11 C. P. 248. 
 
 ford, sold a 
 ]'., a brewer 
 dcfeiid:iiits' 
 roet, signing 
 sliipiiing re- 
 uliitt d sneh 
 nt tlnitiisto 
 rat I'oronto 
 rccei|)t, and 
 ;t out in tiie 
 duly carried 
 lautsin tlieir 
 iteiided, the 
 ditions; and 
 nie graile ,i8 
 :ciit:— Held, 
 ping receipt, 
 ecu the par- 
 ade lietween 
 elevator and 
 varehousiiig, 
 iiig only ap- 
 plaiiititi was 
 |luiiiages sus- 
 specific grain 
 li. W. Cu. et 
 
 {. ir. Co. of 
 
 3ry of goods 
 i from Hani- 
 set up that 
 J said giiods 
 lie did not, 
 the special 
 parties, give 
 rs thereafter 
 -Hehl, that 
 shewed that 
 vered as al- 
 as, that the 
 ction, which 
 owner of the 
 t ilainiltou, 
 also that the 
 r'nor, for al- 
 ii sale, the 
 delivery of 
 iraiiil Trunk 
 
 nts' railway 
 jarry petro- 
 alleging that 
 upon ojien 
 u which the 
 ud weather 
 
 685 
 
 EAILWAYS i\KD EAILWAY CCxUPANlES. 
 
 C86 
 
 
 and were destroyed. At Hie trial, a verbal con- 
 tract between plaintifls and defendants' agent at 
 L. was proved, that the defendants would cany 
 the oil in covered cars with despatch. The oil 
 was forwarded in cjen cars, and delayed in 
 different jilaces, and in consequence a large quan- 
 tity w.ts los-t. On the flii) nieiit of IIk oil, a 
 receipt note w as given which said nothing about 
 covered car.s, and which stated that the gocids 
 were subject to conditions endorsed there(jn, one 
 of which was, " that the defendants would not 
 be liable for leakage or delays, and that the oil 
 was carried at the owner's litk :''— Held, jier 
 Ritchie, C. J., and Fcuinier and Heniy, .IJ., 
 that the loss did not result from any rii?ka by 
 the contiaet imposed on the owners, but that it 
 arose from the wronglul act of the defendant.^ In 
 placing the oil on open cars, which act was in- 
 consistent with the contract they had entered 
 into, and in contravention as well of the under- 
 taking as of their duty as carrieis. Per Strong, 
 Fournier, Henry, and Cwyiine, JJ. The evi- 
 dence Mas admissible to prove a verbal contract 
 to carry in covered cars, which contract the 
 agent at L. was f.utheriiied to enter into, ai.d 
 which must be ineoriorated with the writing so 
 as to make the whole contract one for carrii ge 
 in covered cais, and that nonc( mpliance with 
 the piovision as to cairinge in coveied cars, j re- 
 vente<l ihe appellantssettingnpthe condition that 
 " oil was carried at the owi.jr's risk ' as cxtii.pt- 
 iiig them fn ni liability. Tht Grand Trunk li. 
 W. Co. vj Cahuda v. lilzfjivuld, 5 IS. C. K. 204. 
 
 The Pailway Act, 1S70, 42 Vict. c. 9, s. 25. '■ 
 8ub-s. 4, which declares that the party aggrieved 
 by any neglect or refusal in the piemises, shall 
 have an action therefor against the company, 
 from which action the comjiany shall not be re- 
 lieved by any notice, conditions, or declarations, 
 if the damage has arisen from anj' negligence or 
 omission of the company, or of its servants, is I 
 applicable to the defenilant company, and the ' 
 words " ill the premises" means the piemises as 
 set out in the previous sub-tectii ns. 1 he plain- 
 tifl shipjied live stock on the defendants' rail- 
 way, subject to the conditions en a ship] ing 
 bill, (iue ol w hieli was that live stock was taken 
 entirely at the owner's risk of loss, injuiy, or 
 damage, whether in leading or unloading con- 
 veyances or otheiwise, and that all live stock 
 should be eniried 1)y special contract (,nly. '1 lie 
 animals weie killed or h st by the defendants' 
 negligence :— Held, that the dcftndants could 
 not escape liability by their conditions, for their 
 liability w as expressly provided for by the above 
 clause of the Kailway Act. Vvi/)l v. Grand 
 Trunk J{. W. Co., 2 O. R., Q. B. D. 107. 
 
 I In an action to recover the amount of the drafts : 
 
 ' — Held (Fouinier and Henry, J J., dissenting), 
 
 that the act of C. in ifctuing a lake aud fi audulent 
 
 [ receipt for goods never delivered to the ceni^ any 
 
 vas not an act di ne within the F(o]e of his 
 
 autlioiity as the c(nipany'6 agent, and the h.tter 
 
 wastherefoie m t lialjle. Lilnl ul. v. 'J lit Gnat 
 
 ]yi.'<t(rn li. W. <:«. (./'((ihdda, 5 S. C. R. 179 ; 
 
 3 A. R. 44G; 4:? Q. B. 4(i. 
 
 } VIII. Stock. 
 
 I 1. Cundiliunal Suliycri/ition. 
 
 1 See Kasmith v. Manning, 5 A. R. 126, p. 134. 
 
 2. Directuri. 
 
 reisonal liability of president of a railway 
 touip; ny < n an aceeptanee of a bill of exchange, 
 f^ee JJoddtn v. Cox, 5 A. R. 47a, v- 143. 
 
 Where the elirectois of a lailway cenipany 
 pai-sed a by-law, enacting that the salary (it the 
 llaintiff, as solicitor of the ecnijany, should be 
 tixiel at 8I,fitO ler annum, wh.eli ) y-law was 
 altei wards, at a meeting of shaielioldeis, re- 
 penled : — Held, that the bylaw Wiis within the 
 eenii etence of the diiectors, under C. .S. C. c. 
 ()(), s. 47, ai d the .hureholeleis ceuld neit unelo 
 the arningement in respect of j ast services of 
 the solieiteir reeeiveel ly them. Falkiinr v. The 
 Grand Junction li. }V. Co., 4 U. R., Chy. D. 350. 
 
 Without express power it is the right of the 
 directors of a lailway cenipany to apj oint neces- 
 saiy (jtheers anel agents of the cenipany, and to 
 pioviele feir the manner of their payment, lli. 
 
 See McLaren v. Fisken, 28 Chy. 352, p. 
 141. 
 
 VII. Liability fok Act.s of Agents. 
 
 C, a freight agem, of respondents at C'lmthnm, 
 and a partner in the film of B. & C'ei., caused 
 printeel receipts or shipjing notes, in the fenni 
 conjiionly used by the railway cemipany, to Le 
 signed by his name as the cenijany's agent in 
 favour ot B. & Ce). for Hour which had never in 
 fact been delivereel to the railw ay ce nipany . The 
 receipts aeknowledgeel that the com] any hael re- 
 ceived fieni B. & Co. the ileiur aeklresseel to the 
 appellants, and were attached to dralts eliawn 
 by 15. & Ce). and accepted by appellants. C. re- 
 ceived the proceeds of the draita and absconded. 
 
 IX. Bonds. 
 1. lilijht of' liondliolder.f to lieijUtir and Votf. 
 
 A trustee held certain debentures of a railway 
 company on trust to secure certain creelitois of 
 the eemiwiny for advances iiiaeie by them, which 
 debentures were tei be hand d over to the credi- 
 tors feir sale, \\\w\i the conii'any making default 
 in pajment of the advances. 'J he ciinipany maele 
 default, anel the elebentures were delivereel over 
 to the creditors: — Held, that the creelitors were 
 entitled under 34 Vict. c. 43, s. 33, to be legis- 
 tered as he)lder8 of the delientures, to enable 
 them to qualify anel vote for directois; and that 
 a nianelanius shoulel issue to cenijjel the comjiuny 
 so to register them. In re Thonixun et al. and 
 The Victoria li. W. Co., 8 P. 1\. 423. — Wilson. 
 
 O., being the holder of fourteen bonels of the 
 railway company, issueel on 1st May, 1876, pay- 
 able on 1st January, 1881, with interest mean- 
 while half yearly at 6 per cent, per annum, re- 
 quested the secretary ot the company to re-gister 
 the bonds under 38 Vict., c. 56, O. 'I'liis the 
 secretary refuseel to elo unless the intermediate 
 transfers were produceel and re^gistereel at the 
 same time : — Held, th; t the secretary was bemnd 
 te) register the bonds witlumt the jireiduction or 
 registratieai of the transfers, and a summons for 
 a mandamus was made absolute with costs. In 
 re Oxler v. The Toronto, Grey and Bruce R. W. 
 1 Co., 8 P. R. 506.— Wilson. 
 
687 
 
 RAILWAYS AND RAILWAY COMPANIES. 
 
 688 
 
 
 •■r m 
 
 Tho ranailian B:ink of Pommerce receiveil from 
 M. H. it Co., 1, ankers in London, bontls of the 
 T. (i. k B. Ky., to the amount of .€105,800, 
 re))res('nti.'il bj' Nl. R, & Co. as belonyiiif; to 
 different jicrsons named, and tendered tlioiti for 
 registration at the railway office, in order that 
 these persons might vote thereon. The secTet'uy 
 of the railwiy conijiany registered audi of the 
 bonds -IS stood in tho names of the original hold- 
 ers, hnt refused to register the others unless 
 written transfers from the original holders were 
 produced : — Field, that the company should regis- 
 ter tiie bonds without the production of the 
 transfers; th.it the proof of title in the alleged 
 owners was sufficient; that the issue of scrip in 
 London as rc[)resenting the bonds formed no 
 ol)jection ; and a mandamus to register the bonds 
 was gnnted. fii re Johimnn and Thf Tarnnto, 
 Orcinind Ih-ix-f R. \V. Co. et ol, 8 P. K. 535.— 
 Wilson 
 
 By tho Act of incorporation of a railway com- 
 pany, every shareholder was entitled to one vote 
 for every shire held by him. It was provideil by 
 the same Act, ttiat if the interest on the bonds 
 issued by tlio company should be in arrear, all 
 holders of bonds should have the same right of 
 voting and qualitication for directors as were 
 att.iohed to sli iroholders : — ^Held, that the bond- 
 holilers were not entitled to more than one vote 
 on each bond. Bunlini) et al. v. Latdlaw et al., 
 8 P. R. 538.— Gait. 
 
 Under a statute which provided that, in the 
 event at any time of the interest upon the bonds 
 of a railway company remaining unpaid and 
 owing, then, at the next general ui-ieting of tiie 
 company, all holders of bonds should have and 
 possess the same rights and privileges, and qual- 
 ifications for directors, and for voting, as are 
 attached to sharelKdders, provided that tlie 
 bonds, and any transfers thereof, sliould have 
 been first registered in the same manner as was 
 provided for the registration of shares : — Held, 
 that the words " at the next general meeting" 
 were merely indicative of the earliest period at 
 which the hondholders might vote, and that the 
 statute did not require a new registration in 
 order to entitle the bondholder to vote at any 
 subsequent meeting, so long as the interest re- 
 mained un|) lid. Held, also, that the bondholders' 
 right to vote wis not limited to the right of 
 voting for directors, but that they had the right 
 to vote on all subjects properly coming before a 
 general annual uioeting upon which shareholders 
 might vote. / nd where a subsequent statute 
 extended the bondholders' right of voting to 
 *' special meetings." Held, also, that the bond- 
 hol lers hail the like right to vot-j on all subjects 
 coming before "special meetings." Hendrie v. 
 Th,' Grand Trunk R. W. of Canada ; Thf. Grand 
 Trunk R. \V. of Cannda v. The Toronto, Grey, 
 and Bruce R. 11'., 2 0. R., Chy. D. 441. This 
 case has been carried to appeal. 
 
 When a further statute autliori.^ed ther.ailway 
 company to enter into agreements with any other 
 company, for leasing or working its line, provided 
 that assent thereto should lie given by at least 
 two-thirds of tlie shareholders present, or repre- 
 sented by proxy, at any meeting specially called 
 for the pur|)ose. Held, that the word "share- 
 holders" must be interpreted to include all who 
 were entitled to vote as shareholders, which in- 
 cluded bondholders. Held, also, that the re- 
 
 ] gistered bondhoMera were entitled to vote at a 
 ' special meeting called for the purpose of obtdiu- 
 ' ing the assent of the shareholders to sue', ?\\ ar- 
 ; rangement, on the question of its adoption. 
 ' Osier V. Toronto Grey, p.nd Bruce R. W. Co., 8 
 I P. R. 506 : and Re Johnson and Toronto, Grey, 
 ! and Bruce R. W. Co., 8 P. R. 5,35, followed. 
 Held, also, that the votes of registered bond- 
 holders having baen rejected, the ari-angement, 
 I though confirmed by two-thirds of the actual 
 shareholders present, or representeil, was never- 
 ' theless not properly confirmed witliiu the mean- 
 I ing of the statute , and an action to compel specific 
 performance of the agreement was dismissed. 
 
 To an f.pplication for a mandamus to compel a 
 1 railway company to register bonds, it was ob- 
 jected that it did not appear the company had 
 made default in payment of the interest, the 
 coupons not being shewn to have been presented 
 at the place named for payment : — Held, that 
 1 the fact of the company never having been ready 
 to pay them there or elsewhei'e, was a sufficient 
 I answer to their objection. Re Thomson and The 
 I Vktoria R. W. Co., 9 P. R. 119.— Osier. 
 
 ! A demand upon a railway company to register 
 I the bonds was held sufiiciently m ide upon the 
 ! .assist mt secretary, who, it was shewn, perform- 
 ed all the duties of the secretary's oHioe. lb. 
 
 If the holders of railway bonds desire to ac- 
 quire the right of voting thereon under the Act, 
 all the transfers must be evidenced in such a way 
 as to enable tho company to register them in the 
 same manne;- as they register shares. No special 
 provision by by-law for the registration of such 
 bonds is requisite. lb. 
 
 It is enough that the bondholders on the appli- 
 cation for a mandamus should make out a prirnd 
 facie title, and the mere fact that they were 
 directors of the company was held no objection, 
 it not being denied that they had done what 
 was necessary under 37 Vict. c. 63, s. 25, to en- 
 title them to become holders. Jb. 
 
 X. Aid to Railway Companies by Munici- 
 palities. 
 
 Held, that where a by-law granting a bonus to 
 a railway company has been carried by the elec- 
 tors, a municipal council may refuse finally to 
 pass the same because the passage of the by-law 
 has been procured by bribery, and may set up 
 such bribery in answer to an application for a 
 mandamus : — Quaere, whether it must be shewn, 
 a« it was here, that enough votes have been 
 bribed to destroy the majority. Semble, that a 
 mandimus should not be granted at the instance 
 of any railway company or person to be benefited 
 by sucli by-law, whore a single act of bril'ery or 
 corruption has been brought home to the appli- 
 cant. In re Lawjdon and the Arthur Junction R. 
 ]V. Co., and the Corporation of the Township of 
 Arthur, 45 Q. B. 47. 
 
 Held, following the decision of the Supreme 
 Court of Canada, In re Grand Junction tt. W. 
 V. Peterborough (8 S. 0. R. 77), that a writ of 
 mandamus to compel the issue of debentures by 
 a municipal corporation under a by-law in aid of 
 a railway, will not be gnnted upon motion, but 
 the applicant must bring his action. In re The 
 
 
688 
 
 089 
 
 RAILWAYS AND RAILWAY COMPANIES. 
 
 Ol 
 
 to vote at a 
 
 ose of oV>tdi li- 
 te sue'; ."n ar- 
 
 its adoption. 
 
 R. W. Co., 8 
 'oronto, Grey, 
 )35, followoil. 
 (istereil bouil- 
 
 arrangemeiit, 
 of the actual 
 
 (1, was never- 
 liiii the tneaii- 
 !oini>el specific 
 as tlismiased. 
 
 113 to compel a 
 s, it was oh- 
 company had 
 nterest, the 
 )een presented 
 : — Held, that 
 ng been ready 
 as a sufficie'it 
 »)Hi)n and The. 
 -Osier. 
 
 my to register 
 1 ide upon the 
 ewn, perform- 
 ottice. lb. 
 
 desire to ac- 
 inder the Act, 
 I ill such a way 
 or tliem in the 
 No special 
 ration of such 
 
 s on the appli- 
 ke out a primfl 
 i:it tlioy were 
 1 no objection, 
 ad done what 
 3, 8. 25, to en- 
 
 i BY MUNICI- 
 
 tingabonusto 
 id by the elec- 
 :use finally to 
 
 of the by-law 
 d may set up 
 dication for a 
 ust be shewn, 
 ;e3 have been 
 jeinble, that a 
 ,t the instance 
 ;o bo benefited 
 t of bril'ery or 
 
 to the appli- 
 ur Junction R. 
 
 Township of 
 
 the Supremo 
 notion R. W. 
 lat a writ of 
 iebenturea by 
 j-\&w in aid of 
 n motion, but 
 n. In re The 
 
 
 Canada Atlantic /?. W. Co. and thr Oorpnmtinn 
 of the Township of Canihriilijc, 3 0. R., Q. B. D. 
 291. 
 
 By 18 Vict. c. 33 the Gr.and Tiinction Rail- 
 way Company, which was to run from the Town 
 of Peteiljonm^h to Toronto, was, with certain 
 otlier coinpiinies, incorporated witli the (irand 
 Trunk Railway Company. Not having been 
 built within the stipulated time, the charter of 
 the former company expired, and in .May, 1870, 
 the Grand Trunk Riilwuy having refusi-'d to 
 construct it, an .\ct was passed by tlie dominion 
 parliament, 33 Vict. c. ,53, dissociating the work 
 from the (irand Trunk Railway Company, and 
 reviving the charter of the Grand .Tiuiction Hail- 
 way Comp my. It directed that all the corporate 
 powers orii,'iiially vested in that com])any sliould 
 be vested in eertain persons, who should exercise 
 the same as fully as the parties named in the 
 original charter could liave done, and extended 
 the time for construction. On tiie '_'3rd of No- 
 vember, of tlio sam" year, the ratepayers of the 
 defend.uit iTiunicipality voted in favour of grant- 
 ing the coinp.'.ny a l)onus of ?7.'>,000, but the 
 by-law was never read a third time. At the 
 time the municipality had no power to grant a 
 bonus to a railway company, but subsequently, 
 in 1871, by 34 Xict. c. 4S,"0.. the bylaw was 
 declared as valiil as if it had been rca<l a third 
 time. It was decl ireil to ' binding on thi^ cor 
 poration, ami tliey were directed t() act upon it, 
 an 1 issue debentures, as if it bad been prooosod 
 after the Act. On the same d.ay the municipal 
 law w.is amended so as to empower .all munici- 
 palities to grant aid for similar purposes. 37 
 Vict. c. -13, O., was then passed, amending and 
 consolid iting tlio Acts relating to the plaintiffs' 
 railway, but it did not expressly give retrospec- 
 tive validity to anj'thing that bad been done, or 
 mention tlie by-law, and by 30 Vict. c. 71, 0., 
 the time for completion was further extended, 
 and it was directed that none of the bylaws 
 should laiiso by reason of non-completion within 
 the time previously fixed : — Huld, reversing the 
 judgment of the il B. (4,5 Q. B. 302), that the 
 Grand .1 unction llailw.iy Company, being a local 
 work of the province of Ontario, the Act 33 Vict. 
 0. r)3, w.is ultra vires of the dominion parliament, 
 and that tlie comi)any were therefore not in ex- 
 istence when the defendants granted the bonus, 
 or when the Act 34 Vict. c. 48, validating the 
 by-law was pissed ; and as 37 Vict. c. 43, 0., 
 which was the lirat .\ct l)y a legislature having 
 power to incorporate them, did not legalize the 
 by-law in favour of the plaintiffs, they were not 
 entitled to a mandainus to compel the delivei'y 
 of the debentures. lie Grand Junction li. IF. v. 
 The Count 1/ of Prifrhoi-ou'jh, G A. R. 339. Affirm- 
 ed by the Supreme Court, 8 S. C. R. 77. 
 
 i'er I'attei-son, J. A. , the omission of the plain- 
 tiffs to file any plan in accordince with sec. 10, 
 8ub-8. 4, of the Railway Clauses Act, 14-15 
 Vict. c. 51. was a sufhcient answer to the appli- 
 cation. /// 
 
 It was provided by the by-law that in the 
 event of trustees being theieafter appointed by 
 the legislature for receiving the debentures, 
 the warden should, within six months after the 
 passing of the Act, deliver the debentures to 
 them. Xc) special Act was passed nominating 
 the trustees, but by the Act of 1871, 34 Vict. c. 
 48, O., it was enacted that whenever any muni- 
 
 cipality should grant a bonus to the company, 
 the debentures might, at the option of the muni- 
 cipality, be delivered to three trustees to be 
 named as therein directed. Per Patterson, J. A., 
 tlie legislature had not appointed trusti^es with- 
 in the meaning of the by-law, and as there was 
 therefm-e no default in delivering the debentures, 
 the mandamus must cm this ground also be refu- 
 sed, lb. 
 
 XI. Amaloamatiox of Railw.ws. 
 
 Part of the consideration for the right of w.ay 
 over plaintiff's laiul was that the company, the 
 i Belleville and North Hastings Railway I "(mipany, 
 j should construct a cattle pass under the railway, 
 \ for the use of the plaintitf. The com))any refused 
 I to construct the pass, whereupon the plaintiff, 
 j on the 30th April, 18S0, filed a bill in Chancery 
 ' against them to enforce the .agrei>ment, to which 
 '. tiie company on the 13th September, 1880, filed 
 ' an answer, and on the 13th November a decree 
 was obtained by consent to construct it on cer- 
 tain terms specified therein. In March, 1879, tho 
 .\cts. 42 Vict. ca])s. 53 and 57, O., were passed, 
 authorizing the Belleville and North Hastings 
 [ Railway Company, .and the defendants to enter 
 into an agreement for .amalgam itioi. subject to 
 , the ratification and .approval of a majority of the 
 I sii ireliolders of said companies, at public meet- 
 , iiigs called for such purpose. On the 29th .June, 
 ; 18S0, an agreement was entered into for the 
 anidgimation of the two companies under de- 
 , feiulants' name, which wis on the same ilay 
 rati lie I and approved of by the respective share- 
 holders. The plaintiff ha 1 no notice or know- 
 ledge of the deed of amalgamation, or of iU 
 . crmtents. On the 4th March, 1881, the Act 44 
 , Vict. c. 04, 0.. was p i3se<l, by sec. 1, of which 
 the s lid deed of amalgamation was declared legal 
 I and valid, and that the two companies should lie 
 ! ainalg united and united, umler the defendants' 
 , name, in the terms of the saiil deed. The decree 
 not having been carried out, the pl.aintilf brought 
 this action against the defeiiilants to enforce it : — 
 HeM, that there was no com|deto amalgamation 
 of the two companies until the passing of 44 Vict, 
 c. ()4, O., so that the Belleville and North Hast- 
 ings Railway Company had not ceased to exist 
 when the decree was m.ade, which was therefore 
 legal and valid ; and that the plaintiff was enti- 
 tled to maintain this action to enforce it againsi 
 the defendants. Fari/ny v. The drand Junction 
 ; H. ly. Co., 4 0. R., 0. p. D. 232. 
 
 XII. Railway ix Hands of Rkceiver. 
 
 The receiver appointed to receive the proceeds 
 of a railway company and apply the same in 
 carrying on the business of the company, paid 
 !355.97 to the owner of land over which the lino 
 ran for the right of way over his lands, he hav- 
 ing threatened to obstruct the passage of the 
 company's trains unless paid. On passing his 
 accounts the master refused to allow the pay- 
 ment in favour of the receiver, which ruling of 
 the master was affirmed on appeal, as such pay- 
 ment did not properly come under the head of 
 " working expenses and outgoings" for the road, 
 and which alone the receiver was authorized to 
 pay; but the court (Spr.agge, C.) give the re- 
 ceiver liberty to take out an order now for the 
 allowance of this disbursement, on payment of 
 
mm 
 
 691 
 
 RAILWAYS AND EAILWAY COMPANIES. 
 
 C92 
 
 J.- 
 
 till' tdsts (if the aiijieal — Imt refuted to make such 
 nil (.itler in lesiteet ol feeH \ijiiil to the Sdlicildr of 
 tlie cuiniiauy lor the e.xaiiiiiiatidii <if titles, an 
 there waH not any evidence to f^]iew that tlie jiay- 
 niii.t Avas KiK h as would ha\e heen sanctioned hy 
 Llie court if apidied to in the first instance for 
 l<erniission to jiiy the sanie. Llwilulnnii v. 
 J'diiiiild iihil ^'i/'i'-'iiiii J,'. •! . CO. — J'Dx \. Torutitt) 
 ,n,fl :Ml:'i.-^'ii,ij I!. \y. (o., -H Chy. 'Jl'J. Allirmed 
 in ajii/eal. 
 
 A recei. er of the defendants' railway had lieen 
 ajijioiiited to take the revenues, issues, and jtro- 
 fits, to i)ass his accounts iieriodically, and to pay 
 into court the halance due from liini alter jirovid- 
 i;ig for till' vol king expenses and (jutgoings of 
 the railway. The master was directed to take 
 au account of all pcisons entitled to liens, charges, 
 er incnndirances, and to settle their priorities, 
 and the nioiiey to Ijc jiaid into court was to he 
 paid to such peis-.ns accoiding to their pi ioiities 
 to lie ascertained:— Jlchl, iilhiining the decision 
 of I'roudfoot, v. C, that the Master, in taking 
 the reet-.er's aec( unts, should have allow id 
 debts paid for working expenses which were not 
 legiilarly piiyaLle untilaftcr his appointment, Imt 
 not those already in (hfault at that ti 'le, which 
 w etc properly payable out of the moneys to he paid 
 into court according to their priority, (iooihi/itnii 
 V. I'orovto and 2\qni'»bi(j li. IC. Co., 8 A. It. L'S5. 
 
 Although the duty of the receiver of the gii.ss 
 pmcecds and leveiiues of a lailway, is to pay 
 theitout. all expenses necessary for the main- 
 tenance, management and working ot the und<r- 
 taking, he woukl not he warranted in expending 
 the sanie in any ixtiaoidinaiy outlay ; and wheie 
 an applicatic n was ma<ie hy the nceiver to au- 
 thorize the purchase ot a large amount of rolling 
 stock, the outlay in rispeet of which would re- 
 <]uii e to he met liy aiiticii atiiig iuc( me, the court 
 (Poyd, ('.,) refused to sanction the ex)ienditure. 
 !.<( V. Vkturki li. ))'. Co., Hi* ( hy. 110. 
 
 See Fvx V. ^Xijiiimiiiij U. ^Y. Co. ; Goultrhuvi 
 V. M}j.x.-h,(/ L'. U. Co.. iiDChy. 11, p. I'M ; Lte 
 V. Ciiiiil I iiliiy li. Jr. Co., 2<J Chy. 4t0, p. 341. 
 
 XIII. Ml.'^CKLLANKOl'S CaPES. 
 
 ',*here laid had been taken by the Crtat 
 AVtstern R. \V. Co., for the purposes of their 
 railway under it A'ict. c. 81, s. 30, and 1(1 Vict. c. 
 00, the ccmjany, in ejectment lin.uglit hy them, 
 can rely on the title accjuiicd theieby, and are 
 not driven to j rove ttiictly the title of tlitir 
 grantois. '1 hi (inat ]\\titiiili. ]\ . Co. v. Ltttz, 
 J'2 Q. h. ICU, p. •2'2\). 
 
 Held, that the deft rdants, a railway company, 
 ■were not subject to the jirovisions of "Ihe 
 Ditches and \\ ater Courses Act,'' IJ. t^. O. c. Ili9. 
 Alilhrw (Jriihtl Tivhk li. \V. Co., 4f) Q. B. S'i'i. 
 
 Under the Asscftnicnt Act of 18(19, 3'2 Vict. c. 
 3C, ihe lands of railways might be sold for the 
 non-payment of taxes, iiiiiiih v. 1/ie Midlmid 
 B. W. Co., 4 O. K., Chy. 1). 494. 
 
 XIV. Special Ans LJ■:lA^:^ci lo Pakticulae 
 
 CoTHl'AMES. 
 
 1. Canada Atlantic liaihvay Cvvipany. 
 
 The ehuiter of tlie Canada Atlantic liivilway 
 Company, reciting in the preamble that the line 
 
 of railway which it was pi(ipo.se<l to construct. 
 Would iillord the shortest iind most coiivcnitnt 
 connection lelwcen the cities if Ottawa and 
 Montreal, authorized the ciiiipiiny to (dnstiiut 
 their track finm the dty of CiLiwa to. &c. The 
 head cilice was to be in Ottawa :— Held, that 
 they had the right lo enter the city and con- 
 struct from a jioiiit within its limits. /;/ cc 
 liviiiixmi it III.. and 77.e ( orjiorotion of Ihi- Cih, nj 
 Ottawa, 1 O. K.,Q. 1!. IJ. 415. 
 
 I 2. Canada Central Ra'dn-iiji Compinnj. 
 
 Held, Armour, J., dissenting, that the tin her 
 licensts clainitd tiy the ] jaii.till as liciii.Mc of 
 the Onlariotiovernnieiit weit; subject to the light 
 of the ( anada ( eiitral Idiilway C( nipaiiyan)Uiied 
 , before confKU ration toconstiiu-t tiieii load ai i( ss 
 the Crown landt over w hich the liciiises in (|ucs- 
 tion extended, id that the dettndaiils, assij^iiees 
 of the raiiwi _ comjaiiy, were, theiclorc, not 
 liable in ties) ass for entering upon, and ciitliiig 
 the tinil er on the said linr.ts in piosccutioii of 
 the Wdik of building sai<l rail\va\. Fvian v. 
 Milnlijii- it a/., 45 i). B. '2)-8. 
 
 j The plaintifl' hcr'.in, a timber licensee, sold his 
 inteiiiit in the licmse and limits to (lnc^^'., who 
 j enteied ami cut tinibcr, but the transfer was not 
 jprovid, and by the itgulatiens of the Ciuwn 
 lands dcjaitn.int all tiMisfeis wire to he in 
 writing and Mibject to their aiijiKival, and were 
 to be valid only fioiu such ;ii incival :— Held, 
 that the legal title to the liiiiits i.nd tin. her 
 thereon was in tin: plaintifl', and that ^\'.'s pos- 
 session was the ) luii.till 's, who was entitled to 
 maintain an action for damage dciiu to the limits : 
 ' — llchl, that the Canada Ci i.tial 1 tail way .-icijiiir- 
 cd under their charter, ^ninfed by (he A( t Ml & 
 '20 Vict. e. 11'2, and subseijiunt Acts nlating 
 1 thereto ] assed prior to confederation, tlu' li^lit, 
 I which was preseived by sec. 1(0 ol the B. N. 
 I A. Act, to enter on the Crown lands in the ] ro- 
 ] vince of Ontario on the line of the i;'iiv\a_v in- 
 ] eluded in a subsc(|U( nt timber license ."lantid to 
 the J hiintift, and to cut the timber within six 
 rods of either side theiiof, w itliout .uiy restric- 
 tion as to obtaining the coiiseit of tlii' I ieu- 
 teiijint-(iovernor in Council; — ScmMc, that in 
 the case of railway comjianies within the exclu- 
 sive jurisdiction of the d( minion ] a]l!anieiit, it 
 has the power to confer ujoii such cinipanies the 
 right of constructing their lines through the 
 CidWii lands of the several provincis tliKugh 
 which they may pass, without such consent of 
 the lieutenant-governor in council. L'voth v, 
 Mcli.tijn it al., 31 C. r. 183. 
 
 By 8. 4 of 19 & '20 Vict. c. \\2, the clauses, 
 amongst others, of the Bailway (.'hnisrs Consoli- 
 dation Act, 14 & IT) Viet. c. 51, relating to lands 
 were incorporated therewith, whereby the com- 
 pany were inipowered to enter upon the crown 
 lands on the line of their railway, and to fell and 
 remove the trees standing thereon, &c. By s. 8 
 of the Hi Viet. e. 109, possession of such lands was 
 not to be taken without the consent of the gov- 
 ernor in council, but it was expressly provided 
 that this was not to limit or aflect the (lowers 
 given by the special Act:— Held, that the last 
 named proviso shewed that the taid sec. 8 was 
 not to apply to this company //*. 
 
 See Jonen v. Tim Canada Central li. W. Co., 4(> 
 Q. B. '250, p. 110. 
 
 
C'j2 
 
 ll til t'lilistlllct, 
 
 iipst rdriviiiiiint 
 c t Ottiiwa :ii;<l 
 iiy ti) ((piistiiu't 
 \\:i to. &('. 'I'he 
 11 :-lltl<l, tli;it 
 ' city and ( nu- 
 limits. //( )■(' 
 
 'III (1/ flic ('ill, lij' 
 
 Coill/lllhl/. 
 
 tlial tliL' tin li(>r 
 1 an lilt 11; n- of 
 
 oit t(i till- ligiit 
 
 niiiaiiyai.i|iiiicil 
 
 lu'ir Kiitil u< I'l S3 
 
 ii'mscs in ijiics- 
 
 (laiilH, assijiiifC'S 
 
 tlR'ii.'fiiif, not 
 on, anil cntling 
 
 IMosfciition of 
 »ay. Foiait v. 
 
 icensoo, solil his 
 to one ^^'., vho 
 LransiiT Mas not 
 of till- Clown 
 vni' to 1)0 in 
 roval, anil wire 
 iiioval :— l!tl(l, 
 its .'.11(1 tiii.lier 
 , tliat W.'s 1,(18- 
 was I'ntitltil to 
 nr to tlio linnts : 
 Kaihvav aii,nir- 
 liy tlif Alt l!l& 
 it Auts i-clii1iiig 
 iition, till- li^lit, 
 !) ot tlif 11 N. 
 imtls in tlio ] ro- 
 tlio iiiil«a_\ in- 
 cense !;raiiUil to 
 nl't'i witliin six 
 unit any res-tric- 
 it of tlie I iiHi- 
 S<'inl'!e, that in 
 itliin the exelu- 
 n ] ailianieni, it 
 ■ll eini]ianie.s the 
 les tliioufih the 
 oviiuis thitiigh 
 Slieli tonfcent of 
 ineil. JJuiilli V. 
 
 1 r.', the clauses, 
 ( laiiKi 8 fonsoli- 
 lelating to lands 
 hereby the Lom- 
 uiion the crown 
 :, and to fell and 
 im, &c. V>y a. 8 
 jf giich lands was 
 sent of the gov- 
 jreasly provided 
 [Itct the jiowers 
 Id, that the last 
 B said see. 8 was 
 
 693 
 
 RECEIVER. 
 
 G94 
 
 ■alii. Fr. r(;.,4ft 
 
 RECEIVER. 
 
 I. Al-POINTMENf OF. 
 
 1. Ajiplkulionfor, (J93. 
 
 II. I'OWKK.S OF. 
 
 1. Taking proceedimjs in Matters which 
 
 Occurred J'revioun tohii Appointnicnl, 
 (594. 
 
 2. lusurance Companicn, G94. 
 
 3. Raihimij Ciniipanici — See Railways 
 
 AND llAXl.WAY COJll'AMES. 
 
 III. Liability of, G94. 
 
 IV. iVlTACIlMKNT OF MONEY'S IN HaNDS OF, 
 
 G95. 
 V. Right of, to Costs, C9o. 
 
 II. Powers of. 
 
 I. Ari'OINTMENT of. 
 
 1. Application for. 
 
 A notice of motion for partition having been 
 served, the iilaintiii" moved for an injunction re- 
 straining the defendant from collecting rents, 
 and for a receiver. It appeaicd that the defen- 
 dant was a stranger, whose riglit to he in iiosses- 
 sion was denied :— Held, that no relief could be 
 had against him without bill tiled. Youmj v. 
 Wrhjht, 8 P. R. 198.— Blake. 
 
 When the misconduct is such as would entitle a 
 plaiiilitlat the outset to apply for an injunction 
 or a receiver, an action should be brought. Stdli- 
 van V. Uarty, 9 P. 11. 500— Royd. 
 
 The plaintiff, carrying on the business of a 
 druggist, mortgaged his stock iu trade to the 
 defendant ; the instrument by which it was 
 efl'ccted, stipulating that the defendant should 
 take possession of the premises, to hold for four 
 months in order to secure re-ptiynient of money 
 advanced, and power was given to the mortgagee 
 to add new stock so us to keep up the business. 
 Default was made iu payment, aiul theieafter a 
 large amount of stock was addetl, some of the 
 money being expended by the defendant with the 
 assent of tlie plaiutid' ; other money, being part 
 of the profits of the business, was thus reinvest- 
 ed in new stock ; some ot the old stock remain- 
 ing in specie. The uuitter was referred to the 
 master at Belleville, to take the accounts of the 
 dealings between the parties. Before the master 
 made his report, the plaintiff applied on petition 
 for the appointment of a. receiver, on the ground 
 that the mortgage had been paid iu full: — Held, 
 (1) that as the new stock belonged to the mort- 
 gagee himself, and the plaintitl could therefore 
 nave no claim upon it, and as the master had 
 not yet found which party was indebted to the 
 other, his finding would not be anticipated by 
 the appointment of a receiver ; (2) that although 
 the defendant's right on default, was to sell the 
 original stock en bloc after notice, still the defen- 
 dant was at liberty to add further capital and 
 stock to the business, but not to the prejudice of 
 the mortgagor so as to improve him out of his 
 estate ; and so long as the plaintiti' chose to allow 
 the business to go on under the defendant's con- 
 trol, he had the right so to conduct it, subject to 
 being called ou to aocouut. Foster v. Mordtn, 
 29 Cliy. 25. 
 
 1. Takiuij ProciriUnijs in Maltirs irhich Orcurnd 
 /'rtrioiin to his Apuoiittment. 
 
 After a decree had been pronounced directing 
 the appointment of a receiver, but liufore the 
 appointment was com])leteil, the defciiilant com- 
 pany had made a payment to a creditor, which 
 the plaintilf 1''., a judgment creditor, alleged to 
 be a fraud'.lent iireference, and nioviid for au 
 order that the receiver should take proceedings 
 to recover the money so paid ; — Held, that .as the 
 payment complained of took place before the 
 actual apiiointiiieiit of tlie receiver, it rtas 1111 ire 
 reasoni;,l)le that those who were interested at tlie 
 time the payment was made, parties to the suit, 
 and who objected to what had bucu done, should 
 iu iierson apply for the appropriate relief. Fn.i: 
 V. Si/)iii.iiiii li. \y. Co. — <loodcrhain\. Sipi.'isinij 
 1{. II'. t'o.,29Chy. II. 
 
 2. Iimtrance Companie-f. 
 
 In these cases an objection was taken that 
 there was no power to sue because the eompany'a 
 license under 42 \'ict c. 2.'), Ont. , liad been re- 
 voked, but it was shewn that one B. had been 
 appointed receiver, and was specially reijuired 
 by order of the Chancery division, to proseeuto 
 all members in arrear lor cnHs, and that ho li.ul 
 adopted these actions, and was prosecuting them 
 as receiver : — Held, that the objection was not 
 tenable. Tliu Union Fire J 11.1. Co. v. Fi/z.iiiiiiiiiins 
 ct ill. — The Union Fin: Ins. Co. v. .Shii-lil.i, .'W C. 
 P. «02. 
 
 Where an application was made to the court to 
 add the persons who liad signed jiremiiim notes 
 ' as parties in tin master's otlice, and to direct the 
 I master to assess the amounts due upon the notes, 
 ' and to order payment of the same to the receiver 
 : from time to time, it w as shewn that the direc- 
 tors had not iiiaile any assessments upon the 
 I notes pursuant to K..S.O. c. lUl, s. 45, et seij. : — 
 j Hehl, that as the liability attaelied only upon 
 sucli assessnunt by the directors, the court should 
 not add to, or alter the liability? of the parties 
 wlio had made the notes by relerring it to the 
 master or a receiver to do that which the direc- 
 tors only could do ; clause 75 of 'M \'ict. c. 44, 
 which gave power to a receiver to do this, hav- 
 ing been omitted from the statute on revision. 
 Jlill v. Merchants and Miinu/'acturcrs' Jns. Co., 
 28 Chy. 5U0. 
 
 III. Liability of. 
 
 On the 29th January, 1878, an order was made 
 directing that I), be receiver in the suit, he lirst 
 giving security to the satisfaction of the registrar. 
 At the date of the order and previously thereto, 
 D. was the agent of the mortgagor, and as such 
 collected the rents of the property in question. 
 I), received verlial notice of the oriler and execu- 
 ted his own bond as security, which the registrar 
 declined to accept, and D. continued to receive 
 the rents and pay them to the mortgagor. Ou 
 the 20th May, iJ. executed a second bond, re- 
 citing tlie order of the 29th January, and condi- 
 tioned that he "do and shall account for every 
 sum of money which he shall rciceive on account 
 of rent," which was filed ou the 22iid of May,. 
 
'695 
 
 PvEGTSTRATlON. 
 
 696 
 
 «« 
 f 
 
 t.. 
 
 
 .■■ ', t 
 
 and fin tlu) Srd of June, a copy of the order of 
 the 'i'.ttli .Innuarj', wasscrvod on liim, and he was 
 flotiliud tliiit liis security had been accepted : — 
 Held, liy the master in ordinary, and atfirnied on 
 Rp]M',il liy Spraiigo, V., that I), was accountable 
 for tlie rents received since the 20th January, 
 but uMH entitled to be allowed for any disburse- 
 ments iirojierly made by him. WcMern Canada, 
 Ac. V. Jiicf, 8"]', K. 2(;i,'. 
 
 IV. ArrAriiMEN'T of Md.vkys in Hands of. 
 tSve Lcamiiiij v. Woon, 7 A. E. 42, p. 34. 
 
 V. Fiiairr of, to Costs. 
 
 A receiver is entitled as against the defen- 
 dants, to the costs of a suit in which he succeeds, 
 though the action has been brought witliout the 
 snnctiou nf tin; court. /iV NiUl — Dick-^y et al. v. 
 Acill, i) I'. K. I76.-T'rondfoot. 
 
 grunted at the suit of the crown, where the de- 
 tendant absconds to avoid being arrested for a 
 felony. Fcyiiia v. Stewart, 8 P. II. 297.— Osier. 
 
 A recognizance of bail put in on behalf of a 
 prisoner, recited that he had been Indicted at 
 the Court of General Sessions of the I'cace for 
 two separate offences, and the condition wa», 
 that he should appear at the next sittings of said 
 court, and plead to such indictment as might he 
 found against him by the grand jury. At the 
 next of said sittings the accused did not appear, 
 and no new indictment was found against him : 
 — Held, that the recitals sufficiently shewed the 
 intention to be that the accused should appear 
 and answer the indictments already found, and 
 that an order estreating the recognizance was 
 propoily made. lie Oauthreanx'a Bail, P. R. 
 31.— Osier. 
 
 In recognizance. 
 P. K. 31, p. (i'JG. 
 
 RECITALS. 
 -See Re Gautla-eaux' 1 Bail, 9 
 
 RECEIPT. 
 
 rEEMiisi ANi> Interim Receipts fob Insur- 
 ances.— .SVe Insurance. 
 
 Held, that a mortgage which contains an ac- 
 knowledjjuK^nt of receipt of theniortg.age money, 
 but no covenant for repaymenc of money, does 
 not of itself atl'ord conclusive evidence of a debt, 
 so that tlie mortgagee or his assigns can main- 
 tain an action for its recovery. The London 
 Loan Co. v. Smyth, 32 C. P. 530. 
 
 The acknowledgment of the correctness of a 
 bank account at the end of a month was held to 
 be at most an acknowledgment of the balance on 
 tbc ansumiitiou that the cheipies had been paid 
 to the proper parties. Agricultural Sai-hif/.s and 
 Loan AnsuciatioH v. Federal Bank, 6 A. R. 192. 
 
 See Livingntoti v. Wood, 27 Chy. 515, p. 256. 
 
 RECEIVING STOLEN GOODS. 
 .See lieyina v. St. Benifi, 8 P. R. 16, p. 188. 
 
 RECOGNIZANCE. 
 
 A recognizance taken before a police magis- 
 trate under 32-33 Vict. c. 30, s. 44, U., FormQ. 
 2 (Sched. ), omitted the words "to owe" :— Held, 
 fatal , anil that an action would not lie upon the 
 instrument as a recognizance, lieijina v. Hood- 
 less, 45 Q. B. 556. 
 
 Held, that the forfeiture of a recognizance to 
 appear was a debt sufficient to support the ap- 
 plication for an attachment under the Abscond- 
 ing Debtoia' Act, and that such writ may be 
 
 RECTIFYING DEEDS. 
 See Deed. 
 
 REDEMPTION OF MORTGAGES. 
 See Mortgages. 
 
 REFEREE. 
 See Practice. 
 
 REFERENCE. 
 
 I. To Arbitration— iSc'c Arbitration and 
 Award. 
 
 II. To Master— -See Practice. 
 
 REFORMING DEEDS. 
 Sfe Deed. 
 
 Semble, it does not follow because a plaintiff 
 asks in his bill fcr reformation of a document 
 that therefore a defendant is entitled to claim 
 the same relief though he has not asked for it. 
 Wolfe V. Hughes, 1 0. R. 322. 
 
 REGISTRATION. 
 
 I. Oe Bills of Sale and Chattel Mort- 
 gages — See Bills of Sale and 
 Chattel Mortgages. 
 
 II. Or Deeds— 5ee Registry Laws. 
 
 III. Or Mechanics Liens— See Lien, 
 
 IV. Of Medical Practitioner— S'ee Medi- 
 
 cal Practitioners. 
 
 V. Of Plans— See Registry Laws. 
 VI. Of Railway Bonds— See Railways and 
 Railway Companies. 
 
696 
 
 1, where the de- 
 
 ij; arrested for a 
 
 K. 297.— Osier. 
 
 1 on behalf nf a 
 been indicted at 
 jf tlie Peace for 
 ? cniKlition wan, 
 xt sittings of said 
 uent as might be 
 id jury. At the 
 I did not appear, 
 ind against him : 
 !ntly shewed the 
 I shouhl appear 
 ■eady found, and 
 eeognizance was 
 ic's Bail, 9 P. R. 
 
 EDS. 
 
 RTGAGES. 
 
 Arbitration and 
 
 TICK. 
 
 :eds. 
 
 ecauso a plaintiff 
 111 of a document 
 entitled to claim 
 not asked for it. 
 
 3N. 
 
 ► Chattel Mokt- 
 Ls OF Sale and 
 
 QES. 
 
 'RY Laws. 
 -See Lien. 
 ONER — See Medi- 
 
 l.S. 
 
 RY Laws. 
 
 ?ep Railways and 
 
 IE3. 
 
 697 
 
 REGISTRY LAWS. 
 
 G98 
 
 
 
 
 Vn. Of VoTEiw— 5ee Parliamentary Elec- 
 tions. 
 
 VIII. Of Wills— -See \V ill. 
 
 REGISTiiY LAWS. 
 I. Registry Acts, 697. 
 
 II. ikEOISTKAHS. 
 
 1. lAahilitij for WniiKjful Ucijislntllon of 
 
 Jitslnimciil.i, G97. 
 
 2. Fei'H of, 698, 
 
 III. Instuvments wiiicii may ee Reuis- 
 
 TKKEl), 699. 
 
 IV. Effect of Kehistering or OMirnxG to 
 
 Register. 
 
 1. Plaiw, G99. 
 
 2. Wilts, 700. 
 
 3. Nolirc, 700. 
 
 4. rriorily, 100. 
 
 5. EiiuUalilc. Interests, 700. 
 
 6. Disr/idnje of Morl<ja<je.i—See ^louT- 
 
 OAGE. 
 
 V. Nova Scotia Recjistry Acts, 70L 
 
 I. Reqistry Acts. 
 
 The Registry Act of ISOr), sec. GO, and the 
 Registry Act of 18(i8, sec. 68, are retrospective. 
 Miller V. BrutvH, 3 U. li., Chy. D. 210. 
 
 II. Registrars. 
 
 1. Lialiililij/or Wroiiiifiil lleijiitralion of Jitxtru- 
 ineids. 
 
 S., believing that bis f.ather (still livi!ig, but of 
 uiiEouiid niiiiil) was entitled to certain lands to 
 which the plaintili's claimed title, took the advice 
 of his solicitor, ('., who, being advised by coun- 
 sel, instructed by ,S., prepared and registered 
 an instru!ncnt, whereby he, S. , stated that he 
 claimed the lands, and would upon the demise 
 of hi? father commence proceedings for their re- 
 covery. The plaintifl's were thus fibstructed in 
 the sale of their lands, and brought an action 
 against 8., ('., and the registrar, to remove the 
 instrument from the register, as being a cloud on 
 the title, and for damages. Prouilfoot, J., dis- 
 missed the action as against the registrar, but 
 gave judgment, with a reference to assess dam- 
 ages, against S. and C, (4 O. R. 473) :— Held, 
 that the Registry Act did not authorize the re- 
 gistration of such an instrument ; and, (Cameron, 
 J., dissenting,) that an action would lie for its re- 
 moval. Ontiirio Industrial Loan and /nventment 
 Compani) v. LindKey et al., 3 O. R., Q. B. D. 66. 
 
 Per Cameron, J. — The instrument, being on its 
 face one which did not affect the title, was not 
 removable by the court, and the action should be 
 ilismissed. Jl). 
 
 Per Hagarty, C.J., and Armour, J.— The act 
 of registration was a wrongful one, and all parties 
 concerned in it were responsible to the plaintifl's. 
 
 and the registrar wa.-) thcrefoie a prupi.r party ; 
 but, per Hagarty, C. J,, he was iKjt a necessary 
 party. Jit. 
 
 Per Hagarty, C. .!., there being no niahi (idea, 
 the damages .should be nominal. Jli. 
 
 Per Cameron, J., the registrar was not a pro- 
 per i)arty, having acted in good failii, and in the 
 belief that he was acting within the scope of his 
 duty ; nor was C, tiie .solieitor, a pr(i|u,'r party, 
 he liaving acted to the i)est of his judgment and 
 ability in advising hlj client, alter consulting 
 counsel. Jl). 
 
 2. Feet of. 
 
 The plaintiff sued the defendant for the pro- 
 ])ortioii of fees received iiy the defendiint as regis- 
 trar, to whicli lliey were entitled under II. S. O. 
 c. Ill, ss. 9SI0U. The defendant dciiiiured to 
 the declaration on tlic ground tliat these sectiuna 
 were ultra vires of the h)eal legishitmv, as they 
 impi/sed an indirect tax, iind not a ta.x for rais- 
 ing a revenue for jiroviiicial pur^iosea : — Held, 
 aliirniing the judgment of Armour, .1., that hav- 
 ing received tiie money in qiu'stioii under the 
 above Act. the dt-'fcndaiit could not deny tii.it he 
 receiveil it for the purpo.-sc.s therein [irovided : — 
 Held, also, that if a tax at all, it was ehaily a 
 direct tax, and intra vires. The Coiinlij of J/dnt- 
 imjn v. J'dnlun, 5 A. 11. o43. 
 
 The defendant was registrar r)f the eoniity of 
 liruce, and during the year 18S-_' was discharged 
 from otliee. The iilaiiitill's brought this action 
 for the recovery of the proportion of the amount 
 of fees receivi'tl l)y him up to tin^ time of his dis- 
 missal in excess of the amount alli)ued to be re- 
 tained l)y him pursuant to R. S. (). c. Ill, s. 
 104 : — Held, allirming the juilginent of (ialt, .1., 
 that the dismissal of the dt fcndaiit during tlie 
 year did not deprive the ijlaiiitiU's f)f tlieir riL;ht 
 to recover the excess, which ii:,'lit did not depend 
 upon the return to be made in each year. 77/e 
 Cor/inrii/ion of tlic Cuiuilii (f Jirnc" v. McLaij, 3 
 O. 11., (i*. R. I). 23. Thiscase is in Ap[)eal. 
 
 Ill an action brought against a county registrar 
 to recover back alleged overcliarges, it was shewn 
 that the plaiiitill' had called ii|iontlie registrar to 
 search the books and indices in his olliee, and in- 
 form him of the per.ioiis named as grantees ia 
 the last executed deed of a certain lot ; and also 
 what incuniljranc.'S there were registered agaiiust 
 it. There were 28 entries on the abstract index, 
 and the registrar charged for these services .'Jl.4.5, 
 being at the rate of 'Joe. for the lirst four entries 
 ant 5c. for each of the other entries : — Qua'ro, 
 whether the registrar was Ixmnd to do, or could 
 recover for doing what the jilaintiff recjuired of 
 him ; but — Held, that as he had'done it, the charge 
 which the plaintiff liad paid, and which was 
 reasonable on the pr;nei|)le of the tariif, could 
 not be recovered back. JIacnainani v. Mel^aij, 
 8 A. R. 319. 
 
 The plaintiff told the registrar that one A. 
 owned a lot in the township of 15., but w,is ignor- 
 ant as to the iiunil)er of the lot, and asked the 
 ] registrar to tell him what incuinljrances there 
 i were against it, which the registrar did, and 
 charged for those services 2r)c. for ascertaining 
 I the number of the lot, and 2,")c. for searching for 
 I the incunibrancv;3 : — Held, that both were proper 
 I charges. Jb. 
 
mm 
 
 C99 
 
 RECJISTUY LAWS. 
 
 700 
 
 
 Tlie iilaintifT iiskpil to oxnmino an original con- 
 vcyimco in tiie r('t;istry ollice, infoniiiiif,' tlic 
 (ifl'iri r of till' ii:iiiu'M(if tlic ]p,irtif.s tlicrutojuKl tlio 
 l.uiils iillictcd tiii'icliy, l>ut (lid lint toll him tin: 
 iiiiiiilicr (if llie <J(lllvcy;llllA^ TIk.' i'oj,'istrarcxaiu- 
 incd tliu index, for wliidi lie eliargcd 'i'lt;. , and 
 10i\ for pi'dducinj,' tliu dncuniont: — Hold, alsf), 
 to 1)0 proper cliarce8. //). 
 
 The ropiHtnir wns nKpiired to ]iroducn the ab- 
 ptnict index of a lot, Mhicli contained ISO entries 
 for \viii(di lu' re(|nired to Ik: )i,iid .'?t; as for a gen- 
 eral search, the plaintitr oir'ring to jiay 2.")u. : — 
 Held, (Ilnrtoii, J.A., and Morrison . I. A., dissciit- 
 ing,) tiiat the registrar had charged §1.7") too 
 much. Jh. 
 
 The 'cgistrar charged ><'2.0't for an abstracit of 
 five folios -i.f., if 1.20 for searches, tlie remainder 
 lieiiiu' for (copying at the usual I'ate; — Held, the 
 registrar was entitleil to those fees, though he 
 only cojiied it from the index. Jh. 
 
 A registrar when preparing nn abstract is not 
 iKinnd to rely on the correctness of the abstract 
 index, but may ]iroperly test its correctness by 
 making all searches necessary for the preparation 
 of the abstract ; he m.av rely, however, on the 
 index if he thinks projier, and charge the same 
 fees as for searches. But if he gives a certilied 
 copy of the abstract index only he can charge no 
 more than the rate per folio. Jb. 
 
 Per Rurton and ^forrison, .T.T.A. — The regis- 
 trar is the projier person to mike searches, and 
 he must jiroduce the original instruments and the 
 books containing copies thereof only, but not the 
 abstract index. Jb. 
 
 Per Spragge, C. J. O., and Patterson, J.A. — 
 T'very person interested in a lot of land is entitl- 
 ed to see the abstract index thereof for the pur- 
 pose of making a search, as the book containing 
 such abstract is one of those which the registrar 
 is bound to exhibit under the Registry Act. lb. 
 
 Per Spragge, C.I.O. — A registrar, when re- 
 quired to furnish a copy of any document or entry 
 can make no charge for a search for the original. 
 PoRS r. McLay, 25 C. P. 190, overruled in part. 
 Jb. 
 
 III. Instruments Wiiic May he Registered. 
 
 Quaere, whether a deed of land not specifying 
 any particular lot by description is cap.able of 
 registration. BumpII v. Jfii-inell, 28 Chy. 4x1). 
 
 See Ontario JiuluMrial Loan and Tnvtstment Co. 
 V. JAndsey et al., .3 0. E. C6, p. 697. 
 
 IV. Effect of Registering or Omitting to 
 Register. 
 
 1. Plans. 
 
 Held, that the registration of a plan of a sub- 
 division of a town lot and sales made in accord- 
 ance with it does not constitute a deoication of 
 the lands thereon to the public, and the municipal 
 council had, therefore, exceeded their powers in 
 passing the by-law in question in this case. Jn re 
 Morton and the Corpo^ration of the City of St. 
 Thmnas, 6 A. R. 323. 
 
 I 2. wau 
 
 i The widow kept possession of the will for ele- 
 ven months after the death of the testator, when 
 she burned it for tiio jiui'iiose of enabling her to 
 borrow money on the property devised, and she 
 subse(|uently sold lier interest under the will — 
 an est.ite for life — and the only child professed 
 to convey, as heir-at-law, to one P., who created 
 a mortgage, under which the i)ro[ierty was sold 
 , to I)., a bona tide purchaser without notice, who 
 ] afterwards agreed to sell to H. for the amount 
 I of his purchase money, interest and costs; -Held, 
 that there was not any such inevitable dilHculty 
 as aflurded a nsason for the will not being regis- 
 I terod within twelve months aftiu' the death of 
 'the testator, .and that therefore 1). was entitled 
 to the protection of the registry laws (It. S. 0. 
 e. Ill, 8. I't), as against the inf.'xnt devisees; but 
 it aiijiearing that R. had notice of the will when 
 ; ho iiurch.ised from the widow and heir-at-law, 
 the court declared the infants entitled to redeem. 
 ! We D(n'i.<<, 27 Chy. 199. 
 
 3. Notice. 
 
 Several parcels of land were embraced in one 
 mortgage. Subseijucntly the mortgagor further 
 mortgageil some of thcin to the plaintiffs with 
 j the usual mortgagor's covenants. He afterwards 
 i conveyed anotiier parcel to S., who, when he 
 I took his conveyance, was not aware of the plain- 
 tiff's' mortg.age, but it was registered against the 
 I parcels embraced in it, though not against the 
 other parcels: — Held, that the registration of the 
 prior mortgage against the parcel bought by S. 
 was notice to him of the right of persons who 
 purchased other parcels before he purchased to 
 throw the mortgage uiion his parcel, and that S. 
 was afTected with notice of the plaintiffs' mort- 
 ' gage, and the right it conferred. Clark v. Jiogart, 
 27 Chy. 450. 
 
 See /?(^ Davix, 27 Chy. 199, niipra ; lions v. 
 JIunter, 7 S. C. R. 289. "p- 702; Dilkew Dourjlas 
 et al, 5 A. R. 63, p. 459. 
 
 4. Priority. 
 
 An execution creditor does not occupy as fa- 
 vourable a position under the Registry Act as a 
 purchaser for value wnthout notice; and he may 
 be defeated by a deed made before though regis- 
 tered after the lodging of the execution in the 
 hands of the sheriff. J{iissellv . RmseU,'2%C\\y. ^\9. 
 
 Where two mortgages on different properties 
 by the same mortgagor came into C, 's hand hefore 
 the Registry Act of 1865, and the mortgagor, after 
 the passing of the said Act, assigned the equity 
 of redemption to M. by a registered instrument; 
 — Held, on M . 's suing for redemption, that the 
 registered conveyance to M. prevailed, under sec- 
 tion 66 of the said Act, overC.'s equitable right 
 to consolidate the two mortgages. Milkr v. 
 Broion, 3 O. R., Chy. D. 210. 
 
 See Trmt and Loan Co. v. Gallagher, 8 P. R. 
 97, p. 463; Ross v. Hmter, 7 S. C. R. 289, p. 702. 
 
 5. Equitable Interests. 
 In IS."!! the defendant's father bought for defen- 
 dant the land in question, and in pursuance of his 
 
700 
 
 tho will for elo- 
 ! tcstiitor, when 
 enaltliiiL; her to 
 
 ■viseil, jind she 
 iidor till- will- 
 child proffsscd 
 H., who i;ruated 
 
 IK'ity was sold 
 
 lilt notice, who 
 t'lir tile amount 
 
 I eosts; -Held, 
 it.ible ditficulty 
 Hit beiin; regis- 
 
 r the death of 
 1). was entitled 
 
 laws (It. S. 0. 
 it devisees ; but 
 f the will when 
 md heir-at-law, 
 itlod to redeem. 
 
 jmbraccd in one 
 
 )rtyagor further 
 
 ) plaintiffs with 
 
 Ho afterwards 
 
 who, wiien he 
 
 iro of the jdain- 
 
 ered against the 
 
 not against the 
 
 ,'i.stration of the 
 
 1 bought by 8. 
 
 I of persons who 
 
 he purchased to 
 
 reel, and that S. 
 
 plaintiffs' niort- 
 
 Clark V. Bo(jart, 
 
 lupra ; Pans v. 
 Dilkc V. DoiKjIas 
 
 ->t occupy as fa- 
 egistry Act as a 
 ce ; and he may 
 re though regia- 
 ixecution in the 
 i«e//,28Chy.419. 
 
 !rent properties 
 C. 's hand before 
 mortgagor, after 
 gned the equity 
 red instrument): 
 iption, that the 
 liled, under sec- 
 equitable right 
 jes. Miller v. 
 
 llagher, 8 P. K. 
 I. R. 289, p. 702. 
 
 ts. 
 
 ought for def en- 
 pursuance of hia 
 
 (01 
 
 RKLEASI^. 
 
 702 
 
 
 iiistriK'tioiis, to prevent tlie defendant di^posillg 
 (if t!ie land, the tU-vA, which was r>wistercd, was 
 uiidc to ch'fciiil mt's son \V.. tlicn about 12 ye us 
 old. Tlie di'I'cudant and his family tliiM'cu|ion 
 took jiiiss'jssi'in, and lived there up to thi^ present 
 tiiiu', tho defend Hit being assessed ami piying 
 the taxes. The family residence, with the garden 
 and orelrird, wliiili wis fenced oil' from the rest 
 (if the land iiiid tvMH|)risi.'d from two to four acres, 
 Wii-* always ilcemeil to be the deliMid int's spcii^al 
 ))riiii.'rty, and he had always i^xcliisivc possession 
 thereof, with the consent of the others. W . re- 
 sided with his I' itlier for several years, and then 
 went to the Unit ;d States, but retiiriie I in IS IK, 
 when he eonvc^yod by deed in fee simple, which 
 was registercil, to one H. , his st.;|>-brotlicr, who 
 hid full knowledge of all th<' facts and cirenni- 
 staiieos, and who had been working the land on 
 shares with the defendant and anotlier. Defen- 
 dant complained to him of the s ilo, and denied 
 W. s right to sell, whereupon it was arringed 
 that things were to go on as before, and di^fend- 
 aiit was to have his share. H., in 1S70, and 
 agiin in 1 874, without tho defendant's kiiow- 
 lel^'e, mortgageil the land, by mortgages duly 
 registered, to the plaintilFs, who hid no notice 
 or knowledge of any of tho circumstances, or of 
 the (lefeiidant's possession. In February, IHSl, 
 eje:.:tme;it was brought by the plaintilFs : —Held, 
 til it the plaiutiiVs, being pni'chasers for viluo 
 without notice, claiming under the registered 
 paper title, were under K. 8. O. c. Ill, s. SI, 
 entitle I to recover, except as to the house and 
 plot, to wliieji the defendant by his exclusive 
 possession hail acquired a title under the Statute 
 of fiiniit itiiiiis. The Canailn Piriitniii'iit Loan 
 (iiid Sdrliuj.'i Co. V. McKai/, 32 C. P. 51. 
 
 V. XovA Scotia IIf.oi.stry Acts. 
 
 R. (the a])pcllant) brought an action against 
 H. (tho respondent) for having erected a brick 
 wall over and upon tho u])pcr part of tho south 
 w,dl or cornice of appellant's store, pierced holes, 
 &e. H. pleaded inter alia, special leave and 
 license, and that he had done so for a valuable 
 consideration paid by him, and an eipiitable re- 
 joinder alleging that plaintiff and thos3 through 
 whom he claimed had notice of the defendant's 
 title to this casement at tho time they obtaineil 
 their conveyancss. In 1859 one C. , who then 
 owned R. 's property, granted by ileed to H. the 
 privilege of piercing the south wall, carrying his 
 stovepipe into the fines, and erecting a wall 
 above tho south wall of the building to form at 
 that height tho north wall of respondent's build- 
 ing, which was higher than R.'s. R. purchased 
 iu 1872 the property from tho Bank of Xova 
 •Scotia, who git it from one F., to whom C. had 
 conveyed it — all these conveyances being for 
 valuable consideration. The deed from 0. to H. 
 was not recorded until 1871, and R.'s solicitor 
 in searching the title, did not search umler C. 's 
 name after the registry of the deed by which the 
 title passed out of 0. in 18(52, and did not there- 
 fore observe the deed creating the easement in 
 favour of plaintiff. There was evidence, when 
 attention was called to it, that respondeut had 
 no sepai" ite wall, and the northern w ill above 
 appellant's building could be seen : — Hold, that 
 the continuance of illegal burdens on R. 's pro- 
 perty since the fee had been acquired by him wore, 
 in law, fresh and distinct trespasses against him, 
 
 for which he was entitled to recover damages, 
 unless he w.is bound by the license or grant of 
 ( '. That the deed creating the easement was an 
 iiistruineiit roiiuiring registration under tho pro- 
 visions of tho Xovi .Scotia Registry Act, 4tli 
 series, Hov. Stat. X. S., c. 7\), ss. 9 and 19, and 
 was defeated by the prior registr itioii of the sub- 
 so pleiit jiurcli iser's conveyanci! for valuable con- 
 sider ition, and thercl'ore from the date of the 
 registration of the convcvincc from X. to l''., 
 th it the deed of grant to 11, liecamo void at law 
 against K, and all those claiming title through 
 him. That to dcfo it a n^gistered ili'cd there must 
 be actual notice or fr mil, and tlierc was no actual 
 iiotici! given to R. in thi.^ ease, such as to dis- 
 entitle him to insist in o piity on his I 
 aoipiired under tho statute. 
 S. (;. R. 289. 
 
 gil priority 
 Ho'<H v. llanler, 7 
 
 Per Gwynne, J., dissenting; That upon the 
 |)lea lings as they stood on the roeord, the ques- 
 tion of the Registry .\ -t did not arise, and that 
 as tho incnmbrance coini)lained of hid been 
 leg illy created in 185!), its more continuance did 
 not eonstituto a trespass, an 1 that tho action as 
 framed should not be sustained. lb. 
 
 RELATOR. 
 See ML:,vicrPAL Corpor.\tions. 
 
 REHEARING. 
 See PuACTicE. 
 
 RELEASE. 
 
 I. Of Actio.v, 702. 
 
 11. Of SniETV — '^ef Bail — PRi.vciPAii and 
 .Surety. 
 
 I. Of Action. 
 
 After issue joined ono of two plaintiffs gave to 
 tho defendant a release undjr seal of all actions 
 and domiiiils. The defenilint thereupon moved 
 to stay all proceedings in tho suit ; — Held, that 
 the defendant should plead the release, and that 
 he was not entitled to a stay of proceedings, and 
 the remaining plaintiff was allowed to strikeout 
 the nam"} of the other plaintiff. McAlp'me e,t al, 
 V. VarliDij, 8 P. R. 171.— Osier, 
 
 Action for work and initorials. The c.ause 
 having boon entareil for trial, defendant paid 
 plaintiff -82,509, and received a release expressed 
 in the most general terms, and tho record was 
 withdrawn. The plaintiff again gave notice of 
 trial, alleging that the §2,503, was only part of 
 the consiiloratton for the settlement, and that 
 the defendant was also to procure for him an 
 appointment in tho civil service with a salary of 
 at least §2,000 a year. He refused, however, to 
 repay tho .§2,500, though defendant offered, if 
 he would do so, to give up the release. 'The 
 mister in chambers hiving set aside the notice 
 of trial and stayed all proceedings, Armour, J., 
 on appeal, rescinded this order on the 11th 
 April, 1832, and paruiittod defendant to plead 
 
7o:i 
 
 JtEl'l.KVIN. 
 
 rot 
 
 h 
 
 K 
 
 IM»' - 
 
 
 the ri'IciiHi: oil Ih.'it (lay ; rcjilicitioii timl jniiitlur | Knit iK.suiii;{ nut nf Iain] is a Irinijuiit, it par- 
 lit JMhUc to lie liU'il (III llii: two r(ill(i>> iii^ (lays, and takcM ot the iiatiiic ol huiil, ami i» wilhiii tliu 
 «li rue toil tli(! i.N«iii .1 to li(! tiicil at tiic next AnA- , Tilh hcc. oI tli(.' Statute ot liainls, and iiiiict; iit 
 ■/VH, which licj^aii on tlii' 17th. 'I'hi: liclciiilaiit aino witliin 'J.J (itii. II, c. (i, ». I. Ih. 
 took out the (ii'ilci and jilcadi'd tlic ii Ica.'-c, and I 
 
 tli(! plaintill i^nti'KMl tiu! Last! at thcMi.' Ashi/cs, | 
 
 hut wan alinvvi'd to withdraw it, and d> rLiidaiit 
 in Kunti r 'Icini lollow inj.{, apiiiaicd Iroin the ! 
 oimIlT ol till' luai III d juil;;< : Ihhl (l|, that thu 
 ii|i]ii;al haviiijL; Iki n niaiU' at tiic lii.st Hitting of 
 till' court, \Na> not loo late under Hilled i-l, tiioii^ii 
 
 (> 
 
 r.y tenant 
 K. TiKS, 1). 
 
 or lifi 
 •-M4. 
 
 ItHl'AIKS. 
 
 SiiiH/i's Trusts, 4 
 
 lliorc! tlian eifiht ihiy.s had e!a|i.sed 
 
 tile linn; 
 
 I. 
 
 Jl. 
 
 III. 
 
 IV. 
 
 liuil not lieiii exienih'd ; 1*2; that ih'feiidant, | 
 under tiie eiieiiniNt.iiiees, was not |i|erlii(hil liy ( 
 liiivinj,' aetiil under the order ; (.'() that the order 
 iniDsi lie roeinded, lor the plaintill eoiild not 
 repudiate tlie release while retainiiiL; the money 
 wllieli he had received under it. and as the tiddi- j 
 tioniil con.sidciatioii alle;j;ed, was ille^^al, the i 
 ]ilililitil) Iieini4 partieeps eiiiiiiiiis, could not Ket 
 it nil to avoid the releatju. J/i ickdii v. MiuiIoii- 
 ulil, .TiO.r. 407. 
 
 The slieiitr of ().\ford. in rxecutin^' fi writ of 
 leldevin, «.is oli.stnieled liy the defend..lits, who 
 rescued the floods. On coiniilaint of ihesherill's 
 tidicer, they Were .suniniailv liied lieforiNi p(p|iee 
 
 inaHistrale and lined, under ;!•-'.■!:! \ iit. c. iW, hy ' eovered the Iraud weiitl.acU 
 which it is dec land that any peisoii disrh.ir;eil jij^ ,, ]„. „t the same time 
 
 UHI'LHVIN. 
 
 ()s SAr.r. OI' (ioons, 701. 
 l''oii 'rniiii:i!, 70J. 
 I'i.kaihm: ami I'liAci'K i;, 70."). 
 llKi'i.KViN iJo.Mi, 70y. 
 
 I. On Sai.k oI'" (ioons. 
 
 M. liy falsu re[ire.seutati()ii.s induced T. to sell 
 him a horse, hii>;j,'y and harm ss and to take for 
 tiicin two jMdinissory notes. T. liavinj^ dis- 
 
 id d( ni.'inded hack 
 iiiouiiii; the notes 
 
 ol M. however, 
 le would hriiig 
 
 cr I victed ill such a case shall lie rclcii^cd Iroin .m die talile. On the assiiram 
 
 all furthei or other criminal jiidci cdings for the |||;,t ,,n the lollowin;,' 'I uesday 
 same cause. A motion aftdwards ni.idc hy the the properly or salisl'action. 'I'. aL'.iin took tlio 
 plaintitr to attach the .s.'inie p.irlics for conli nipt, ,i„tes and w'ciit away. Al. did nol .'ippcaras he- 
 Mas disciiaigid, lilit without costs. Iluijinniil 1 1 |,,.i,l pioinised, and t. .sued olita wriloi replevin 
 
 ul. V. //((// dill., 4(ig. 15. .'ili'J. 
 
 The purser of ii steainlioat had lieeii summoned 
 by the plaintitl In forea iiia;^isti',ite foruna.ssaidt, 
 uml a iijie was imposed which he (laiil. I'cr 
 Wilson, v.. ,1. -This under .'i::-;);! N'lct. o. L'O, 
 8. 45. I)., though .1 release to the purser, did 
 not eonstitiite any liar to the present civil action 
 against the coin|iany. Eitu imiii v. '/'/it Stinjiini 
 Jiuviijullou Co., 2 O. li., C 1*. D. iiiiS. 
 
 RELlf! lOUS INSTITUTIOlvS. 
 
 I. CllUHCUKS. -aSVc CllUHClI. 
 
 II. BEQUK.srs.— .SVfi Will. 
 
 REMUNKHATIGN. 
 
 I. To ExKorioiis ani> AiiMiMsruArons. — 
 iSVcKxKCUTOKs A.Ni)Aii.\ii.Ni.sriiA'i()i;s. 
 
 II. To Tuu.srKEs.— 6Vc Tklst.s and Tku.s- 
 
 TEE.S. 
 
 RENDER. 
 .SVe Bail. 
 
 RENT. 
 See Distress.— Landlord and Tenant. 
 
 Devise of rent to attesting witness. See IIop- 
 klns V. JJopkiiis it id., 3 O. K. 22.3. 
 
 ajiainst M. Iiiil liclore it had tieeii i \ccul<;d .M. 
 sold the property to [ilaintill. an innocciit pur- 
 chaser wild having liecn deprived oi il umlertlie 
 replevin, lirou^hl trover .•iL;;iiiist t he shc'riH' :— 
 Held, that tlie ]ilaiiitiir w ,is I'liliUeil to recover, 
 that the contract had not been ilisalliiined when 
 the writ of re|ilcvin issued, ami that the nieie 
 is.stie of it was no notice to M. of disalilrniaiice 
 and could not ail'cet thi' plaintill' : Held, also, 
 follow iiij;(i real Weslerii Kailw.iyt 'o. /'. .'^lcr>,vaii, 
 •-'8 (,). J{. .-.2.S ; .SO (.». li. ,V)!), thai the delciid ant 
 as shei ill having taken the properly out of tliu 
 idaintili's )i(i.sscssioli could not justify under the 
 writ of replevin. tSlo('»:r v. Sjiriiifiri; 7 A. 11. 
 4!I7. 
 
 Sec McGrajor v. McS'iil, 32 C. I'. o.iS, [>. 7.kS. 
 
 II. For Ti.MiiKK. 
 
 The (Icfendant'.s timlier limits .'idioiiied those 
 of 15. & C, Imt from uncertainty in descri|iti(iu 
 i in their respective lieennes, tlie division line 
 ! was not delined. The defendant replevied 21t> 
 pieces of tiniher eut within a line run under in- 
 structions of the crown tiinlier agent, as the 
 boundary of the defeiulant's limits, hut (ui 
 account of the iutirmity in his license, he failed 
 in the action as to 175 pieces, for a return of 
 which li. & C. were entitled to judginent. The 
 latter iirocured an assignment of the replevin 
 bond to themselves, and as.sigiied it to the plain- 
 tifl's who brought this action thereon. The 
 court was of opinion that the timlier in (jucstion 
 ■was cut upon lands intended by tlu^ crown to be 
 within thebmits "•'thedefendant's license though 
 H. & C. had soiuj grounds for a.-serting title 
 thereto : — Held, that there having liecn a breach 
 of the condition of the bond, Jl. iV ( '. became en- 
 titled to recover such damages as tliey had sus- 
 
TO* 
 
 i'ljit'iit, il |iar- 
 Ih w illiin till) 
 mill lii'UL'u iH 
 Ih. 
 
 UIi'h 'I'mnlti, 4 
 
 705 
 
 lUi'd T. to Sell 
 ml to tiiluj lor 
 r. liaviiig (lis- 
 ili iiiMiiili'il li;u'k 
 iwiiiu the null's 
 it i\l. lio\v(Vir, 
 woiilil liiiiii; 
 M'.MJll look tliu 
 III M|i|i('iii' as ho 
 wriLiii i'i'|ik'viii 
 •l[ rM:i;ilti;il M. 
 II iiiiiouriit |mr- 
 ol It u:iiU:r tliu 
 L III.'. Mlifi-ilV ; — 
 Ik'il to rc'ciivii', 
 
 H.llijIIIR'll wki'i) 
 
 tli.il tin; luiiu 
 
 il' iljsalliriiiiuiuu 
 
 I:- lli'lik iiUii, 
 
 ( 'o. i: Molv.vaii, 
 
 tin; iluiiiiiliut 
 
 lly out of tliu 
 
 istity miilfl' tliu 
 
 nii'ji r, 7 A. K. 
 
 I'. ,j:!8, p. T'lS. 
 
 adjoinoil thosu 
 
 ill iluscription 
 
 10 ilivi.sioii liiiu 
 
 t rupluviuil -l(> 
 
 lu run uiulur iii- 
 
 ■ aguiit, as tliu 
 
 JilllltS, luit (111 
 
 iuuiiso, he failuil 
 , lor a lutuni of 
 juilgiiieiit. The 
 ol thu replevin 
 I it to the plain- 
 thuri'oii. Tlie 
 uhui- in i|UCstioii 
 till' orowii to he 
 's liuenso though 
 
 ■ a.-siitiiig title 
 ig lioi'ii a hiuauh 
 it ('. Iii'fauio eii- 
 iis they hail sua- 
 
 705 
 
 HKillT OV WAV 
 
 7oe 
 
 taiiieil iiy replevin iirdeceiliii^H ; tliiit tiie Imnil, 
 aftt'i' it Man aMKigiica hy the Hherill to I'., k ('., 
 was a ih'lit iiiiil i liohu in aetimi aHhigiuiMe |iiii'- 
 Kiiiiut to thu ^tatllt(^ ; ami that tliu plaiiitij] 
 liaviiig tlii^ II' m lieiiil iiileii nt tin ji in l>y aM<igii 
 liient VNaH intitlcd to leeovir; Lut il. In iiig a 
 ease lol the ei,nitiihle inteileiiMce ol the court, 
 it vas iliii jleil that ii|iiin pii_\ nn nt ly the ihv 
 iVmlant ol the eoht Imuiieil hy It, iV I . in i lit- 
 ting aii'l ti';>nhpoi ling the tiniln r up to tune it was 
 l'('p!u\ ieil, le^.s a iset-oll loiiiiii lor tliu di li iiilaiit 
 in tlii» ai'tion (the amount to he a.-ui italiieil l>y a 
 lelui'enei' il the dehnikint hIiouIiI ho ehul), 
 further pi oi'uedlngs Hhoiild he Ntayud, Jlalt.itl 
 (//v. MiuLiii, 1 t». I!., il 11. IJ. 'M. 
 
 \i. ttal., chiiniiiig eertain hindN in the town 
 Bliip of llorton under a paper title, hiiilt a liarii 
 and uatnp in 187r), eumniuiiued and eontiniuil 
 logging all 'II,:' i inter and in siil Hi(|Uent years. 
 In US77 Mcl>., Butting up a title iiiiih i ei ri in 
 pi""i'uiliiig» aihipteil at a niULting ot the inliiihi- 
 tani.j of the townuliip in 1847, held lor the piirjiosu 
 of making pHivision lor the poor, hy wiiiuh uur- 
 tuin eominiKHioners wuie authori/.ed losull Muaiit 
 lands, eiiteied upon and cut on the lands in 
 {|ueHtion Mriiiu TiOO trees, which he |iul on the ire 
 outside and inside L. et al.'u hooni, mixing them 
 with some ()(JU logs already in saiil hooin, and cut 
 hy L. et al., in biiuli a way that the> could not lie 
 distinguished. Mul*. then claimed thu whole iis 
 his own, anil lesi.slud 1j, etul.'hattcm|it to rtino\u 
 them. In anaition ol replevin hion^ht l<y I.. 
 et al. for 1, 410 logs cut on said luiiils : - Held, 
 that L. et al.'s possession ol thu tuiids in (juiution 
 was siiilieieiit to entitle them to recover in thu 
 jircsunt action against Mul)., who was a wrong 
 doer, all thu logs cut on the lunds in ((Uistion. 
 I'er Strong, .J. When one jiarty wiongiully in- 
 termingles his logs with those ol another, all the 
 p.-irty ulii'Se logs are inturniinglud uaii leijuiru is 
 that he should he permitted to take from the 
 whole an equivulunt in nuniliur and quality lor 
 those which he originally iio.ssessed. MvDvnald 
 el al. V. Lane, 7 S. O. U. 4ti'J. 
 
 See McUreyor v. McNeil, 32 C. P. fiSS, p. 7r)8. 
 
 III. Pleading and Puactick. 
 
 In an action of replevin the slicrill' replevied 
 jiart of the goods, and eertilied in his return to 
 the writ that the remainder had heen eloigned 
 to places unknown helore the writ came into his 
 hands. The plaintitl' declared in two counts. 1. 
 For that the defendant unjustly detained the 
 goods of thu plaintiff, specilying the goods, re- 
 plevied, until, &c. 2. For that the defendant 
 unjuatly detained and still dutans, against sure- 
 ties and pledges, the goods of the plaintitt', 
 specifying the goods eloigned :— Held, under 1{. 
 S. O. c. 53, 8. 24, that the second count was 
 maiutainalile ; that the two counts were pro- 
 perly joined, and that the declaration was not 
 open to objection. Thurston v. Brcanl, 8 P. 
 R. 10.— Hagarty. 
 
 The plaintiflf issued a writ of replevin direct- 
 ing the sheriff to replevy ''two hundred and 
 thirty sheep and Limbs," unjustly detained by 
 the defendant. On the previous day defendant 
 had sold the property to one (iill, in whoso pos- 
 session it was when the seizure was made : — 
 Held, that the above deaeription was not sutti- 
 
 46 
 
 eieiil, mill lliat the articles loiild nut !>e sui/.ed 
 II lull I' the \u IL wl ill' they Will ill tlir |iiisHi>sion 
 ol u pnity not n.imeil tlniein. I'lnntiH was 
 allowed loaiiiind tlie desri Iptimi and siilistitutu 
 or add (Iill as a ikli iidiint. Iluniiinni v. Ihi-i- 
 n,//, b v. K. IM.- Dalton, (.). V. 
 
 Act ions of ri|iluviii are not within (he general 
 provihii.iH of Oidurs 1 and 2, tiiid the piiiitiuu 
 I'liiil pliNidiiigs theiein are within the i.\ri|ition 
 iif Itiilu 4 A ^t.'ltl mint ol ulniin lileil in hiieh 
 an lutioli was llii nloru set ^siile, and tin plain- 
 till allowed to dceliii ■' aceoiililig to tlie old prae- 
 tiie. Ciiiiij'ini V. / .^ ".», II 1'. |{. 142,- halton, 
 Mdn/er. 
 
 In an aution of replevin tun ilavs' notice of 
 ♦lial lnu,st I ivuii, .iihtead ul i i^lit days, as 
 iinilur the 111 . jiiacliue. irii"((i(' v. Cnintii, !t 1". 
 li. 144. haltoii, .)/i'.'. c. 
 
 Sec /lni<ll,<jv. ( Uiri , « IV 1!. 410, p. 248. 
 
 IV. Hki'i i;vin r.D.ND. 
 
 In replevin a County Court .Iml'iu made an 
 Older whuii thu writ was gi'iiiiliil, iliieiliiig the 
 shei ill to sri/.e tliu goods and Imlil tin in subject 
 to rei|insitiiiii by the plaiiilill to ieplu\in li> him. 
 'I'liu blierill Seized tliu goods, but did not t iku a 
 111. ml as directed by 11. S. (). u. y,\, s. II : -llulil, 
 tli.'it this older did not do aw a) with the iii ces- 
 sily of tiiking a bond, and tin sei/uru was sut 
 aside, with costs to bu paid by the sherilf. Lini-- 
 /.,v.i V. IhrJjoril, P. H. 33. — Haltoii, Miifilev. 
 
 See liatiH it ul. v. Marhij, 1 (). 1!. 34, p. 70r>. 
 
 IIKPOKT OF MASTER. 
 See PitACTiOK. 
 
 UFSIDUAKY KSTATE. 
 See Will. 
 
 REVIEW. 
 
 See pRACTirK. 
 
 REVISION (COURT OF.) 
 See Ab.SE.ssME.NT and T.vxes. 
 
 REVIVOR. 
 See Scire Facias and Revivou. 
 
 See 
 
 RIDEAU CANAL 
 Tylee v. The Queen,! S. C. R. G51, p. 599: 
 
 RIGHT OF WAY. 
 See Way. 
 
707 
 
 RULES AND ORDERS. 
 
 708 
 
 RIPARIAN PROPRI.^TORS. 
 
 See Water and Water Courses. 
 
 I* 
 
 RIVERS. 
 .566 Water and Water Oouk.ses. 
 
 ROAIJS AND ROAD COMPANIES. 
 See Way. 
 
 RULES AND ORDERS. 
 I. Rk(}ul.« Generales, 707. 
 II. Gknkrai, Orders of the Court of 
 
 ('IIANfERY, 707. 
 
 III. Rulfs under the Judicature Act, 
 
 1 881, 708. 
 
 IV. Supreme Court Rules, 711. 
 
 V. In Court or Chambers— .See Practice. 
 
 I. REOULiE Generales. 
 
 K. G., H. T., 2(5 Gjo. III.— See Golding v. 
 Mark-ie, 8 P. R. 237, p. 51. 
 
 K. G., 1 M. T., 14 Vict.— See Bei/ina ex rel 
 McDonald v. Andvrsou, 8 P. R, 241, pp. 169,482. 
 
 R. G. 52.— See Young v. Hohaon, 8 P. R. 25.3, 
 p. 160. 
 
 R. G. 135— See Senn\. Hewitt, 8 P. R. 70, pp. 
 246, 635. 
 
 II. General Orders of the Court of 
 Chancery. 
 
 G. O. 56.— See Collver v. Swayzie, 8 P. R. 42, 
 Pli. 275, 641. 
 
 G. O. 100.— See Pherrill v. Forbes, S P. R. 
 408, p. 642. 
 
 G. O. 120 (English)— See McGannon v. Clarke, 
 9 P. R. 555, pp. 162, 752. 
 
 G. 0. 134.— See Hilderbrom v. McDonald, 8 
 P. R. 389, p. 249. 
 
 G. 0. \^8.— See Bank of British Noi-th America 
 V. Eddi/, 9 P. R. 396, p. 246 ; Moore v. Boyd, 8 
 P. R. 413, p. 247. 
 
 (i. 0. 144, — See Bank of Briliah North America 
 V. Eddy, 9 P. R. 396, p. 246. 
 
 (i. 0. 221.— See Darling v. Darling, 8 P. R. 
 391, p. 24.5. 
 
 G. 0. 226.— See Stammers v. O'Donohoe, 29 
 Cby. 64, pp. 641, 722. 
 
 G. 0. 244. — See Hopper y. Harrison, 28 Chy. 
 22, p. 640. 
 
 G. 0. 245. — See Hopper v, Harrison, 28 Chy. 
 22, p. 640. 
 
 G. 0. 252.— /?e Eaton, 8 P. R. 289, p 640. 
 
 G. O. 276.— See Bucke v. Murray, 9 P. R. 495, 
 p. 633. 
 
 G. 0. 312.— See Purdy v. Parks, 9 P. R. 424, 
 p. 475. 
 
 G. O. 425.— See Fuller v. McLean, 8 P. R. 
 549, pf . 640, 774. 
 
 G. 0. 436.— See Crmo v. Close, 8 P. R. .33, p. 
 471 ; Pherrill v. Forbes, 8 P. R. 408, p. 642. 
 
 G. O. 438.— See Faulds v. Harper, 2 0. R. 
 405, pp. 470, 606. 
 
 G. 0. 489.— See Peck v. Peck, 9 P. R. 299, p. 
 .329. 
 
 G. O. 608.— See Re Totten, 8 P. R. 385, p. 45 ; 
 Gough V. Park, 8 P. R. 492, p. 45. 
 
 G. 0. 610.— See Rew \. Anthony, 9 P. R. 545, 
 p. 336. 
 
 G. O. 638.— See Heytoood v. Sioewriqht, 8 P. 
 R. 79, p. 272 ; Re Dr'aqqnn, 8 P. R. 330, p. 272 ; 
 Re Allan— Pocock v. Allen, 9 P. R. 277, pp. 
 272, 273, 657 ; Sullivan v. Harty, 9 P. R. 500, 
 p. 273. 
 
 G. 0. 639.— See Sullivan v. Hartti, 9 P. R. 
 500, p. 273. 
 
 G. O. 640.— See McKay v. McKay, 8 P. R' 
 334, p. 47 ; Brown v. Brown, 9 P. R. 245, p. 577 ; 
 
 Re Arnott — Chatterton v. Chatterlon. 8 P. R. 39, 
 p. 578 ; Macdonellv. McGillU, 8 P. R. 339, p. 578. 
 
 G. O. 641.— See Clark v. Clark, 8 P. R. 156, 
 p. 578. 
 
 G. 0. 642.— See Foster v. Morden, 9 P. R. 70, 
 p. 37 ; Exchange Bank v. Newell et al., 9 P. R. 
 528, p. 47 ; Re Eatnn, 8 P. R. 289, p. 640 ; Dun- 
 nard v. McLeod, 8 P. R. 343, p. 642. 
 
 G. O. 643.-^6 McColl, 8 P. R. 480, p. 273 ; 
 See Partition III., p. 679. 
 
 G. O. 647. — See Klein v. Union Fire Ins. Co 
 3 O. R. 234, p. 608. 
 
 G. O. 648.— See Groom v. Darlington, 9 P. R. 
 298, p. 272. 
 
 G. O. 649.— See Groom v. Darlington, 9 P. R. 
 298, p. 272. 
 
 III. Rules under the JuDicATtrBE Act, 1881. 
 
 Rules 1 to 10. — See Campan v. Lucas. 9 P. R. 
 142, p. 706. 
 
 Rule 2. —See Beaty v. Bryce, 9 P. R. 320, p. 389 . 
 
 Rule 3. — See Re Allan — Pocock v. Allan, 9 P. 
 R. 277, p. 272. 
 
 Rule 4. — See Campan v. Lucas, 9 P. it. 142, 
 p. 706 ; Robertson v. Mero, 9 P. R. 510, p. 6,30. 
 
 Rule 5.— See Vetter v. Cowan, 46 Q. B. 435, p. 
 21. 
 
 Rule 17. — See Klein v. Union Fire Ins. Co., 3 
 0. R. 234, p. 608. 
 
 Rule 31. — See Mackelcan v. Becket, 9 P. R. 
 289, p. 629. 
 
 Rule 36.— See International Bridge Co. v. Tlie 
 Canada Southern R. W. Co., 9 P. R. 250, p- 66& 
 
 Rule 45.— See Martin v. Lafferty, 9 P. R. 300, 
 p. 630. 
 
708 
 
 /, 9 P. R. 495, 
 
 , 9 P. R. 424, 
 
 lean, 8 P. K. 
 
 8 P. R. 33, p. 
 8, p. 642. 
 
 rper, 2 O. R. 
 
 P. R. 299, p. 
 
 R. 385, p. 45 ; 
 
 , 9 P. R. 546, 
 
 ewrh/ht, 8 P. 
 
 I. 330, p. 272 ; 
 
 . R. 277, pp. 
 
 9 P. R. 500, 
 
 art!/, 9 P. R. 
 
 Km/, 8 P. R- 
 I. 245, p. 577 ; 
 71. 8 P. R. 39, 
 R. 339, p. 578. 
 
 ;, 8 P. R. 156, 
 
 71, 9 P. R. 70, 
 H al, 9 P. R. 
 , p. 640 ; Dan- 
 2. 
 
 ,. 480, p. 273 ; 
 Fire Ins. Co.t 
 Ington, 9 P. R. 
 lington, 9 P. R. 
 
 BE Act, 1891. 
 LacM, 9 P. R. 
 
 .R. 320, p. 389. 
 V. Allan, 9 P. 
 
 ,, 9 P. ii. 142, 
 i. 510, p. 630. 
 
 16 Q. B. 435, p. 
 
 Fire Ins. Co., 3 
 
 kcket, 9 P. R. 
 
 idge Co. v. The 
 R. 250, F- 658. 
 
 ty, 9 P. R. 300, 
 
 70ff 
 
 
 Rule 69.— See Crawford v. Crawford, 9 P. R. 
 178, p. 440. 
 
 Rule 72. — See Macdonald et al. v. Crombie et 
 al, 2 0. R. 243. p. 263. 
 
 Rule 78. — See Ckamherlnin v. Armstrong, 9 
 P. R. 212, p. 472. See JuDaME.vx I. 2, p. 392. 
 
 Rule 80.— See Boyd v. McXult. 9 P. R 493, 
 p. 8 ; Bank of Nova Scotia v. LaRoche, 9 P. R, 
 503, p. 154. See Judgment I. 3, p. 392. 
 
 Rule 89— See FauUs v. Harper, 2 O. R. 405, 
 pp. 470, 606. 
 
 Rule 90. —See Woodward et al. v. Shields, 32 
 C. P. 282, p. 606. 
 
 Rule 91.— See fftad v. Bowman, 9 P. R. 12, 
 p. 606. 
 
 Rule 94.— See Haroei/ v. Grand Trunk R. W. 
 Co., 7 A. R. 715, pp. 103, 603, 683. 
 
 Rule 103.— See Scnne v. Duch-tt et al., 3 0. R. 
 370, pp. 33"), GOd ; Kilcliin'/ v. Hicln, 9 P. R. 
 518, p. 604 ; Head v. Bowman, 9 P. R. 12, p. 606. 
 
 Rule 104. — See Scane v. Duckettetal., 3 O. R. 
 370, pp. 305, 609. 
 
 Rule 108. — See Corporation of the Town of 
 DitU'lasv. Oilmonr etal, 2 0. R. 463, p. 605. 
 
 Rule 112. — See Corporation of the Town of 
 Dttndas v. Gilmour et al., 2 0. R. 463, p. 605. 
 
 Rule 127- — See Exchange Bank v. Stinson. 32 
 C. P. 158, pp. 108, 608. 
 
 Rule 128. — Union Fire //w. Co. v. Lyman, 46 
 Q. B. 453, p. 607 ; Rmsell v. Canada Life Assur- 
 ance Co., 32 C. P. 256, p. 611. 
 
 Rule 131.— See Burritt v. Murdock, 9 P. R. 
 191, p. 392. 
 
 Rule 141. — See Burnett v. Union Mutual Fire 
 Ins. Co., 32 C. P. 134, p. 368. 
 
 Rule 144. — See Attorney General v. Midland 
 R. W. Co., 3 0. R. 511, pp. 610, 672. 
 
 Rule 158.— See Clarke v. McEwing, 9 P. R. 
 281, p. 607. 
 
 Rule 189. — See Attorney General v. Midland 
 R. W. Co., 3 O. R. 511, p. 610; McClenaghan 
 V. Grey, 4 0. R. 329, p. 109. 
 
 Rule 219.— See Davis v. Wickso^, 9 P. R. 219, 
 p. 24a. 
 
 Rule 224.— See Bradley v. Clarke, 9 F. R. 410, 
 p. 248. 
 
 Rule 227. — See Maitland v. Globe Printing Co., 
 9 P. R. 370, p. 248. 
 
 Rule 254. —See Aitcheson v. Mann, 9 P. R. 
 253, 473, p. 587 ; Goldsmith v. Valton, 9 P. R. 
 10, p. 587. 
 
 Rule 255. — See McLean v. Thompson, 9 P. R. 
 553, p. 765 ; Chapman v. Smith, 32 C. P. 555, p. 
 633 ; Burke v. Murray, 9 P. R. 495, p. 633. 
 
 Rule 259.— See Barker v. Furze, 9 P. R. 83, 
 p. 765. 
 
 Rule 264.— See Hopkins y. Smith, 9 P. R. 285. 
 pp. 156, 631 ; Barker v. Furze, 9 P. R. 83, 
 p. 765 . 
 
 RULES AND ORDERS. 710 
 
 Rule 266.— See Barker v. Furze, 9 P. R. 83, 
 
 p. 765. 
 
 Rule 274. —See Triide v. Phoenix fns. Co., 29 
 Chy. 426, pp. 173, 220. 
 
 Rule 235. — See Re Dunsford — Dunsford v. 
 Dunxford, 9 P. R. 172, p. 247 ; Fisken v. Cham- 
 berlain, 9 P. R. 283, p. 248. 
 
 Rule 311.— See Cook v. Grant, 32 C. P. 511, 
 p. 504. 
 
 Rule 317.— See Trude v. Phcenix Ins. Co., 29 
 Chy. 426, pp. 173, 220. 
 
 Rule 321.— See Jcdomevt I. 4, p. 393. 
 
 Rule 322. —See Henehery v. Turner, 2 O. R, 
 284, p. 251. See Judgment I. 5, p. 393. 
 
 Rale 324.— See Lucas v. Fraser, 9 P. R. 319, 
 pp. 164, 632 ; Kinhch v. Morton, 9 P. R. 3i, p. 
 263 ; Francis v. Francis, 9 P. R. 209, p. 589 
 See Judgment I. 6, p. 393. 
 
 Rule :^.30. — See Bank of Ottawa v. McLaughlin^ 
 8 A. R. 543, p. 219. 
 
 Rule 339. — Tlw London ife Canadian Loan and 
 Agency Co. v. Merritt, 32 C. P. 375, p. 729. 
 
 Rule 366.— See Meyers v. Kendrick, 9 P. R. 
 363, p. 35. 
 
 Rule 370. — See Jackson v. Cassidy, 2 O. R. 
 521, p. 34. 
 
 Rule 395. —See Taylor v. Bradford, 9 P. R. 
 350, p. 630. 
 
 Rule 414. — See Hewson v. Macdonald, 32 0. 
 P. 407, pp. 221, 632, 703 ; L)Wion v. Canada 
 Farmers fns. Co., 9 P. R. 185, pp. 221, 631. 
 
 Rule 420. —See Keefe v. Ward, 9 P, R. 220, 
 pp. .38, 631; Christie v. Conwuj et al, 9 P. R. 
 52U, p. 390, 631. 
 
 Rule 422.— See Coulson v. Spiers, 9 P. R. 491 , 
 p. 170; Re Allan-Pocockv. A'lar, 9 P. R. 277, 
 p. 272 ; Coulson v. Spiers, 9 P. R. 491, p. 388. 
 
 Rule 424. —ffe Cameron, Infants, 9 P. R. 77, 
 p. 590. 
 
 Rule 427. —See Lnwson v. Canada Farmers 
 Ins. Co., 9 P. R. 185, pp. 221, 631 ; Christie v. 
 Conwit/ eta'., 9 P. ti. 52i), pp. 390, 631 ; Dayer 
 V. Robertson, 9 P. R. 78, p. 632. 
 
 Rule 431. — See Bank of Noua Scotia v. La 
 Roche et al, 9 P. R. 503, pp. 153, 393. 
 
 Rule 438.— See Re Solicitors, 9 P. R. 90, p. 47. 
 
 Rule 443.— See Re Solicitors, 9 P. R. 90, p. 47. 
 
 Rule 447. — See Morrison v. Taylor, 9 P. R. 
 390, p. 733. 
 
 Rule 449. — See Exchange Bank v, Newell et 
 al, 9 P. R. 528, p. 47. 
 
 Rule 457. — See McLean v. Pinkerton, 7 A. R. 
 490, pp. 86, 759. 
 
 Rule 461.— See Sieoewright v. Leys, 9 P. R. 20 
 p. 631. 
 
 Rule 468.— See Bovd v. McNiM, 9 P. R. 493, 
 p. 8. 
 
 Rule 482.— See Giles v. Morroio, 4 O. R. 649, 
 p. 226. 
 
711 
 
 SALE OF GOODS. 
 
 71? 
 
 f. 
 
 ■ *•• 
 -0:: 
 
 ■ a 
 
 l{ule 483.-See Gilen v. Morrow, 4 O. 11. 049, 
 p. 226. 
 
 Hule 493. — See Burnett v. f/Hio« Mutual Fire 
 Ins. Co., ;il' C. P. 134. p. 3GS; MuvL-ckan v. 
 i/tt/.('/, 9 r. li 2t)9, p. 0:;9. 
 
 Rule 494. -See Sawi/er v. .S7i«r<, 9 I'. R. 85, 
 765. 
 
 Rule 510.— See IJattli/ v. Merchants' Despatch 
 Co., 4 O. R. .•J;{, p. 179. 
 
 IV. Supreme Court Rules. 
 
 Rule C. — See Macdonukl v. Abbott, 3 S. C. R. 
 278, p. 749. 
 
 Rule 5(J. —See iVori/i Ontario Election (Dum.) 
 Wheeler v. OHjI/k, 3 S. C. R. 374, p. 750. 
 
 Rule 59. — See North Ontario E lection (Dom.) 
 Wheekr v. O'ibljs, 3 S. C R. 374, p. 750. 
 
 iu couuectiou with the shanty now in oiioratiou 
 iu Limit Ho. 1, iiicludeil in tlie list made out last 
 suniuier, and the material then not included 
 whieli had been in use lor the winti r's operations 
 of IS&O and 1881,' at the p>ice ot .^;i,000 :- Held, 
 I Bulhuiently delinile to satisiy tlie statute ol' frauds 
 since the plant referred to therein could easily 
 he identiiied by p.irol evidence as beiny that 
 specitically describeil in a certain writing, which 
 accompanied the aliove contract, and which was 
 si^neil in the lirm s name and by the purcluiser, 
 as also could the terms of credit to l)c allowed as 
 to the payment of the §15,500, and .such paiol 
 evidcme was admissible, though the contract 
 imported prima facie a down payment of tlie 
 $15,500. Ji'eid V. iHmilh, 2 O. R., Ohy. 1>. 09. 
 
 SALE OF GOODS. 
 I. ST.4TUTE OF Frauds, 711. 
 IL Actions lou Kondehveky or Non- 
 
 AUCEl'TANCE, 712. 
 
 III. Co^TliACT OE Sai-e, 713. 
 
 IV. WllKN I'KOPEhTV IADSES TO BUYEB, 714. 
 V. ACOEPIANCE AND RECEIPT, 715. 
 
 VI. Sale of 'i imber— (See Timber. 
 
 VII. By rAU'lICULAU I'EKsiONS. 
 
 1. Aijents—iiee I'KIKCIPAL AND AoENT. 
 
 2. Corporations — See Corporations. 
 
 VIII. Replevin on Sale of Goods — See Re- 
 plevin. 
 
 I. Statute of Frauds. 
 
 Defendant sold to plaintiti's a quantity of tea, 
 agreeing if there was any lelton plaintiUs' bauds 
 at a certain date, he w ould take it back at the 
 advanced price ol ten cents per pound : — Held, 
 an entire agreement consisting ot one conditional 
 contract ot sale, ami not ot two contracts ; and 
 that eousequently the delivery of the goods by 
 the defendant salislied the statute of tr>.uds, and 
 the piaiiititis were entitled to recover lor the de- 
 fendants relusal to take back the quantity left 
 nusuld. Lian.iilen et al. v. JJavts, 40 W. B. 1. 
 
 K. entered the sale of certain groceries in a 
 "book which was not produced, but the plaintiti 
 produced a list of the things orderetl, anil their 
 prices ; and K. afterw.irds sent the order in a 
 letter signed by him to the iletendants, who 
 thereupon wrote the plain tills, " K. reports a 
 sale that we cannot approve in full, but will ac- 
 cept lor," enumerating certain articles. Upon 
 the plaiutiiis' insisting on the completioa of the 
 order in lull the delendants cancelled it alto- 
 gether :— Meld, that the letters were a sutlicient 
 niemoiandum within the 17th section ol the 
 •Statute of hrauds. Ockley el al. v. Masson et 
 al., « A. R. 108. 
 
 The contract was expressed to sell "Limits 
 2^08. 1 and 3 for 1(^15,600 ; also all the plant used 
 
 II. Actions for Nondelivery or Non- 
 acceptance. 
 
 On the 7th May, 1874, the appellant sold to 
 the respondent 500 tons ol hay. 'i he writing, 
 which was signed by the appellant alone, was lu 
 following teims : '• ." old to G. A. V. 500 tons of 
 timothy hay of best ((uality, at the price ol ^;21 
 per ton f. o. b. propellers in canal, JNioiitreal, at 
 such times and in such quantities as tlic saiti (i. 
 A. C. shall (jider. The said hay to be perlectly 
 sound and ;iry when delivered on board, and 
 Weight tested il required. Ihe same to be paid 
 j for on delivery ot each lot by order or ilialt ou 
 sell, at the Bank of Montreal, tlie same to he 
 I consigiietl to ordt " of l^ommion Bank, Toronto." 
 In execution of tl s coiitiact, the appell.uit de- 
 livered 147 tons I 'id 33 pnuiids oi hay, alter 
 ! which the respoiuleiit reiuseil to receive any 
 I more. 'Ihe appciluiit having several times iioti- 
 j hed the I'espondeiit, both verbally and in w riting, 
 I by lormal protest on the 2Sth July, lt>74, re- 
 qucsteil him to take delivery of the rc.uainiug 
 354 tons ol hay. Ou the 11th of No eiuher lol- 
 lowiiig, the apitellant brought an action ol liaui- 
 ages lor breach ol contract, by which he claimed 
 ^3,417.77, to wit, iS2,47l ditleieiice between tlie 
 actual value ot the hay at the date ol the protest 
 and the contract price, and 5'943.77 tor extra ex- 
 penses which the i'ppellant incurred, owing to 
 the relusal ol the respondent to tulld his cou- 
 tnict : — lleld, that such a contract was to be 
 executed within a reasonable time, ami that, 
 from the evidence of the usage of trade, the 
 delivery, under the eircunisti.nces, wa< to be 
 made before the new crop of hay, and that the 
 respondent, being iu iletault to receive the hay 
 when required, was bound to pay the damages 
 which the appellant had sustained, to w it, tlie 
 ditlereiice at the place of delivery between the 
 value when the acceptance was reiused and the 
 contract price, and other necessary expenses, the 
 amount ot which, being a matter ol evuleiice, was 
 properly within the province of the court below 
 to determine. Chapman v. Larin, 4 S. C B. 
 349. 
 
 The defendant company agreed to purchase 
 from the plaintiti' a {piaiitity ol iron called " I'e- 
 pere' imn, the plaintiti to deliver the same as 
 the delendants should require for their works. 
 The plaiiitiB subsequently, w ithout any reijuisi- 
 tioli from the delmdants, .^hipped to them nearly 
 the whole quantity agreed t(ir, of another brand 
 of iron, inanulactured by a ditl'ercnt comiiany, 
 though using the same ore and tuel and making 
 
712- 
 
 713 
 
 SALE OF GOODS. 
 
 7U 
 
 w ill ojicratiou 
 t liiadf! out last 
 not iiioluiletl 
 r's opeiatious 
 ;:i,000:- II till, 
 atutu ol frauds 
 n could easily 
 as litiiig that 
 writing, which 
 iiid W'liich was 
 liie purchaser, 
 > l)c allowed as 
 lid such jjuiol 
 the contract 
 ij incut 01 the 
 OLy. D. (j'J. 
 
 iY OH NON- 
 
 pcllaut sold to 
 'ihe wiitiiig, 
 
 it alone, was m 
 (J. iiOO tons of 
 
 ihe 1)1 ICC ol t'21 
 
 1, JNiontrcal, at 
 s as the said (r. 
 
 to be pcrlectly 
 
 uii board, and 
 same to be paid 
 
 dcr or diatt on 
 ;lie sanie to be 
 luiiU, 'i'uronco." 
 e appcll.int de- 
 8 01 liay, alter 
 Ito receive any 
 icral tiiiHS iioli- 
 f and ill w riting, 
 July, lb7-l, re- 
 f the renaming 
 f .No eiiibcr lol- 
 i action ol daui- 
 rhicli he claimed 
 ice between the 
 te ol tlie protest 
 .77 lor extra cx- 
 urred, owing to 
 u tuilil his cou- 
 tract was to be 
 tune, anil that, 
 ;e of trade, the 
 ices, was to be 
 y, and that the 
 
 receive the hay 
 )ay the ilaiiiages 
 lied, to wit, the 
 ;ry between the 
 
 rciuaeil and the 
 ,ry expenses, the 
 of evuleiice, was 
 
 the court below 
 irin, 4 8. C 1!. 
 
 ;ed to purchase 
 roil called " I le- 
 ver the same as 
 or their works, 
 lout any reijuisi- 
 d to them nearly 
 if another brand 
 I'erent company, 
 tuel and making 
 
 the same grade of iron as the Depere Company. 
 The defendants refused toaccept the iron offered': 
 —Held (.iltirming M C. P. 47.")) that the defend- 
 ants were not bound to accept the iron so ten- 
 dered, neither could the pliiiitlff recover the 
 value thereof, the iron being a different article 
 from thit contracted for. hfvihtrum v. Toronto 
 Car Wheel Cuni/iainj, 8 A. R. «-27. 
 
 The plaintifl's agreed to 'deliver to the defen- 
 <lant from 1300 to 1500 tons of ohl iron rails — 
 "cash on delivery of each 100 tons, or with 
 privilege of drawing against them as may be 
 agreed on l)etwei'n us as they are shipped." On 
 17th Feliru iry, I8S0, the plaintiffs having de- 
 livered ll.'iOtoiis sent an account of shipments, 
 drew for .'jl,,500, which the defendants on the 
 •iist refused to accept, erroneously, a.« they after- 
 wards admitted, asserting that two carloads, 
 price .iJ33;?, had not been received, and adding, 
 " You should deliver the balance due on con- 
 tract before asking ua to pay any more money. 
 The time has so far gone by the date when we 
 expected the whole amount that we think it not 
 nnreasonable to ask this." There was a silence 
 for some time, though the parties were in cor- 
 respondence about another contract, and on the 
 5th,hine, 1880, the plaintiffs wrote : " We shall 
 now Soon be able to complete the deliver^' 
 of the ohl rails," and they went on to refer to 
 the contemplated contract. In answer, the 
 defendants' agent referred to the other con- 
 tract, but said nothing about the completion 
 of the present one. On 20th August, the plain- 
 tiffs agiin drew for the price of the amount de- 
 livered, and acceiitance was refused for the same 
 reisons .-is before. 'I"he plaintiffs sued for the 
 price of the iron delivered, an('. the defendants 
 counter-claimed for damages for Lue non-delivery 
 of the ditl'eren e betw-een the iron delivered and 
 l.SOO tons: — Held, reversing the judgment of 
 Osier, J., on this point, at the trial, Hagarty, 
 C. J., dissenting, that the plaintiff's were not 
 justified in treating the defendants' letter of the 
 21st and their conduct as shewing that they con- 
 sidered tliecontract at an end, and refused further 
 performance of it, for they could not after the 
 letter of the 21st Feliruary have sued for breach 
 thereof, in not accepting the remaining 150 tons ; 
 and that while the defendants were lialile for t! i 
 price of the amount delivereil, they were entitled 
 to judgment on their counterclaim for damages 
 caused by the failure of the plaintiffs to deliver 
 the balance. Midland Railwaij (h. v. Ontario 
 Rdling Mills Co., 2 O. R., Q. B. D. 1. This 
 case has been carried to appeal. 
 
 The plaintiffs claimed damages for nou-accept- 
 ance of iron under another contract: — Held, 
 per Osier, J., upon the evidence and corres- 
 pondence set out in the case, that no concluded 
 contrict was shewn, ami if it had been the 
 plaintiffs could not have recovered ; for 1. They 
 had transferred the contract, and 2. They made 
 default in delivery at the time agreed upon. lb. 
 
 See Exchanije Rank v. Stinson, 32 C. P. 158, 
 p. 108. 
 
 III. Contract of Sale. 
 
 A contract for the sale of goods "to arrive '' 
 does not constitute a conditional contract ren- 
 dering the vendor liable only on the cundition of 
 
 the arrival of the goods, except perhaps where 
 the goods are either in transit in a named vessel 
 or about to be .shippeil at a named port in some 
 particular manner. In this case, being a sale of 
 iron to be made in Scotland, it was — Held, upon 
 the evidence in the case, that the s ile w.as abso- 
 lute, and not subject to any condition as to the 
 arrival of the goods. Flcury v. Ci>j>laiiil et al., 
 46 Q. 6. 36. 
 
 By telegrams and letters the defendant offered 
 to sell the plaintiff' twelve cars of liarley, to be 
 delivered free on the track in Toronto at (Jtic. 
 per bushel, of the (|Uality of two cars previously 
 shipped by the dciend mt to the ])1 lintilF, sub- 
 j ject to inspection by the (il liutilf at his own ex- 
 i peiisc at Lmilsdowue. The plaintiff telegraphed, 
 "All right, will take the lot. Ship one car on 
 receipt —(juick." By letter of same date tlie 
 plaintiff said that this might save the necessity 
 of hi.s sending down to inspect, as if this car was 
 all right he need not do so. The car was sent 
 by the defendant, who, however wrotb at once, 
 when advising of the shipment, that the only 
 way he would sell wouUl lie to have the barley 
 inspecteil at his grain house. Defeii<laiit drew 
 on the plaintiff for ihe price of the car sent, 
 which was paid. The [ilaiutiff did not inspect, 
 but after receiving this car, the plaintiff wrote 
 and telegraphed to defendant to ship the balance 
 but defendant refust'd to do so : — Held, Cameron, 
 .) ., dissenting, that the contractwas subject to the 
 condition stipulated for by the defendant, that 
 the plaintiff should inspect before shipment ; and 
 that the shipment of one cai', with the le. ..• 
 accompanying it, was not a waiver of the con- 
 dition for inspection at Laiidsdowiio of the resi- 
 due, which the defendant was therefore not bound 
 to deliver. Goodall v. Smith, 4(5 Q. B. 388. 
 
 See Ockley et al. v. Mattson et al. , (i A. R. 108, 
 p. 243. 
 
 IV. When Pkopertv Passes lo Buyer. 
 
 M. agreed to manufacture and furnish to the 
 joint account of himsel> and the plaintiff a quan- 
 tity of staves to be loaded in cars at railway 
 station by a da> named. By the terms of the 
 agreement the staves were to be considered at 
 all times, whether marked or not, the property 
 of the plaintiff as security for advances : — Held, 
 that under this agreement the staves became the 
 property of the plaintiff as soon as maile, and 
 never were the property of M. ; and that the 
 agreement did not require filing under the Chat- 
 tel Mortg ige Act ; and that the plaintiff there- 
 fore was entitled .as against an execution creditor 
 of M. Kelseij v. .ffo^/er.^ et al., 32 C. P. 624. 
 
 The plaintiff consigned crude oil to A. , who was 
 a refiner, on the express agreement that no pro- 
 perty in the oil should pass until he made certain 
 payments. Without making such payments, 
 however, A. sold the oil without the knowledge 
 of the plaintiff : — Held, {following Walker v. 
 Hyman, 1 A. R. 345,) that the plaintiff was 
 entitled to recover from the purchaser the price 
 of the oil, although his purchase had been made 
 in good faith and without any notice of the stipu- 
 lation between the plaintiff and A. McDonald 
 V. Forrestal, 29 Chy. 300. 
 
 M. by false representations induced T. to sell 
 him a horse, buggy and harness, and to take for 
 
715 
 
 SALE OF LAND. 
 
 716 
 
 C 
 
 t;, 
 
 
 AS « 
 
 them two promissory notes. T. having dis- 
 covered the fraud, went and demanded back his 
 goods, at tlic same time throwing the notes on 
 the table. Ou the assurance ot M., however, 
 that on the following Tuesday he would bring the 
 property or satisfaction, T. again took the notes 
 and went away. M. did not appear as he had 
 promised, and T. sued out a writ of replevin 
 against M. but before it had been executed M. 
 sold the property to the plaintiff, an innocent 
 purchaser who having been deprived of it under 
 the replevin, brought trover against the sheriff : 
 — Held, that the plaintiff was entitled to recover; 
 that the contract had not been disaffirmed when 
 the writ of replevin issued, and that the mere 
 issue of it was no notice to M. of disaffirmance, 
 and could not aflcct the plaintiff. tSluener v. 
 SpriiKjer, 7 A. K. 497. 
 
 G. had recovered a judgment against his father 
 for costs in an action instituted by the latter, 
 and under the execution issued thereon seized a 
 horse as the property of the father in the pos- 
 session of the plaintiff A., another son. It was 
 shewn that several years befoie the father had 
 agreed to Cdnvey his farm to A. and another 
 brother W., both of whom assumed possession and 
 control of the property belore any conveyance 
 was executed, and so continued in possession, 
 the father continuing to reside on the plate w ith 
 the two sons, part of the consideration for the 
 conveyance being that they should support him. 
 The SOI. 8 also bought the chattel propel ty from 
 their lather, the horse in question liaviiig been 
 purchased by A. for $50, and this he kept upon 
 the premises, as had always been d(.ne, using 
 him in the work of the farm, and occasionally 
 working for others with him for hire, the father 
 sometimes using him for his own purposes. 
 On this state of facts, the judge of the C ounty 
 Court of Hastings in an interpleader issue, left 
 the question of property to the jury, who found 
 a verdict for A. Ihe court being of opinion that 
 the claim of G. having arisen long alter the al- 
 leged sale of chattels, it would require a prepon- 
 derance of evidence in favour of G., to induce 
 the court to interfere with the finding of the jury 
 (but which did net txist) refused to disturb the 
 conclusion of the judge as to the finding of the 
 jury, and dismissed an appeal, with costs. Dan- 
 ford V. Danj'onl, 8 A. R. 618. 
 
 See Steele v. The Grand Trunk R. W. Co., 31 
 0, P. 260, p. 103. 
 
 V. Acceptance and Receipt. 
 
 The defendants, withtheknowledge that a con- 
 signment of goods was in excess of the quantity 
 ordered V)y them, made no objection on that 
 ground though negotiations took place for a re- 
 duction in price, on account of delay, &c., but 
 took into stock 15 out of L'5 cases sent. The other 
 10 cases remained in bond till they were sold to 
 pay duties : — Held, that there was evidence on 
 which a waiver of any objection as to the excess 
 was properly found. Goodi/tur Rubber Co. v. 
 l\.4er et ai, 1 0. R., Q. B. b. 242. 
 
 SALE OF LAND. 
 I. Statute of Frauds, 716. 
 
 II. CONTEACT OF SaLE. 
 
 1. Construction, 717. 
 
 2. Delivery of Ponsension, 718. 
 
 3. Interest and Taxes, 718. 
 
 4. Rescindiixj on the Ground of Fraud, 
 
 719. 
 
 5. Specific Performance of— See Specific 
 
 Performance. 
 
 6. Purchase of Trust Property by Trustee 
 
 — See Trusts and Trustees. 
 
 III. Title. 
 
 1. Incumbrances. 
 
 (a) How far a Di fence to Actions on 
 
 Mortija<jes jor the Purchase 
 Money, 720. 
 
 (b) Purchase Subject to Mortgage, 
 
 720. 
 
 (c) Discharge of by Vendor, 722. 
 
 2. Cloud on Title, 722. 
 
 3. Covenants for Title— See Covenants 
 
 FOR Title. 
 
 4. Eject of Notice under the Registry Acts 
 
 — See liEGisTRY Laws. 
 
 5. Compensation for Inqirovements under 
 
 ily istake of Title — See Improvements 
 ON Land. 
 
 6. Quieting Titles— See Quieting Titles 
 
 Act. 
 
 7. Applications under R. S. 0. c. 109 — 
 
 See VENLOKfci AND I'URCUASSEKS ACT. 
 
 IV. Preparation and Tender of Convey- 
 ance. 723. 
 
 V. Sales for Taxes— (See Assessment and 
 Taxes. 
 
 VI. Sale of Crops — See Crops. 
 
 VII. Crown Lands— See Crown Lands. 
 
 VIII. Under Execution— <See Execution. 
 
 IX. Fraud in Conveyance or Sale of Land 
 — See Fraud and Misrepresenta- 
 tion. 
 
 X. Married Woman's Property — See Hus- 
 band and Wife. 
 
 XI. Infants Estate — See Infant. 
 
 XII. Under Power of Sale— See Mortgage. 
 
 XIII. Under Order of the Court — See Sale 
 
 OF Land by Order of the Court. 
 
 XIV. Of Timber— See Timber. 
 
 I. Statute of Fraud.'?. 
 
 Where a written agreement for the sale of land 
 contained the following condition of sale ; "The 
 vendor shall have the option of a reserved bid 
 wliich is now placed in the hands of the auctio- 
 neer," and the reserve bid was worded as 
 follows : " Re sale of Allan Wilmot's farm, 
 reserved bid, $105 per acre : "—Held, that the 
 above words, even though read together as they 
 should be, did not so identify the vendor as to 
 satisfy the statute of frauds. " Vendor " is not a 
 
 
716 
 
 18. 
 
 <ml of Fraud, 
 
 -See Specific 
 
 er/y hy Trmtee 
 
 L'STEES. 
 
 e to A rt'ioiis on 
 the Purchase 
 
 to Mortgage, 
 
 ndor, 722. 
 
 Ve COVENAXTS 
 
 •e Registry Acts 
 ovemeiitx uuder 
 
 iMrEOVEMENTS 
 
 JiETiNG Titles 
 
 S. 0. c. 109— 
 RCUA.SEKS Act. 
 
 CR OF CONVEY- 
 SSESSMENI AND 
 PS. 
 
 I'N Lands. 
 Execution. 
 t Sale of Land 
 
 ISREPKESENTA- 
 
 :Ki\-—See Hrs- 
 
 ?ANT. 
 
 See Mortgage. 
 
 CRT — See Sale 
 THE Court. 
 
 the sale of land 
 of sale; "The 
 a reserved bid 
 of the auctio- 
 )s corded as 
 nlniot's farm, 
 Held, that the 
 gether as they 
 ! vendor as to 
 dndor" is not a 
 
 717 
 
 SALE OF LAND. 
 
 718 
 
 sufficient description of the party selling to satisfy 
 the requirements of the said statute. Wilmot v. 
 Stalker, 2 0. R., Chy. D. 78. 
 
 A., whose wife owned a certain freehold pro- 
 perty on St. George street, wrote to B. the owner 
 of a certain leasehold property on King street, 
 with reference to the said properties, as follows : 
 " If you will assume my mortgage, and pay me 
 in cash .§,3,700, I will assume your mortgage of 
 Jo,000 on the leasehold :" and B. replied, " Your 
 offer of this date, for the exchange of my pro- 
 perty on King street for your property on St. 
 (jieorge street, 1 will accept on your terms :" — 
 Held, affirming the judgment of Ferguson, J. (2 
 O. R.609) not a sufficient memorandum of the con- 
 tract to satisfy the statute of frauds. (Armour, 
 J., doubting). McClung v. McCracken et ux., 3 
 O. R., Q. B. D 596. 
 
 In letters written by the solicitor of a pur- 
 chaser of land sold at auction it was stated that 
 the atlvertisemeut of sale had represented tliat 
 twenty acres of the land purchased from the 
 defenilant had been cleared and fenced, whilst 
 the fact was no fencing whatever remained on 
 the premises, and by reason thereof claimed 
 compensation, and in his answers thereto the 
 defendant did not deny the fact of sale and pur 
 chase, but disputed the right to compensation : — 
 Held, affirming the decree of the Court of Clian- 
 cery (2s Chy. 207,) a sufficient admission of the 
 fact stated to take the case out of the statute 
 of frauds, although no contract of sale had been 
 signed by the vendor. Stamnierfi v. O' Donohoe, 
 8 A. R. 161. Affirmed by Supreme Court. See 
 20 C. L. J. 260. 
 
 Although a vendor is allowed great latitude in 
 the statements or exaggerations he may make as 
 to the general qu;ilities and capabilities of land he 
 is about to offer for sale, still he will not be per- 
 mitted to make direct misstatements and misre- 
 presentations as to matters of fact which would 
 naturally have the effect of inducing parties 
 resident at a distance to bid for the property. 
 S. a, 28 Chy. 207. 
 
 See also "Specific Performance, "L 1, p. 738. 
 
 II. Contract of Sale. 
 
 1 . Construction. 
 
 An agreement for the purchase of certain land, 
 after providing for the payment of a certain por- 
 tion of the purchase money, continued as follows: 
 "The remaining $1,1)00 (after deducting the 
 amount due to the Crown), payable in instal- 
 ments of $100 each, without interest, on 1st Api'il 
 in each year, during nineteen years," and the 
 purchaser to secure by mortgage " the residue or 
 sum of $1 ,C0O (less the amount due to the Crown) 
 payable as aforesaid." It was not then known 
 exactly how much was due to the Crown, but it 
 was soon after ascertained to be |,364:--Held, the 
 true meaning of the above agreement was that 
 the amount due to the Crown was to be sub- 
 tracted from the $1,900, and the balance paid in 
 instalments of $100 each on 1st April in each 
 year until the whole of such balance should be 
 paid. Wolile v. hughes, 1 O. R., Chy. D. 322. 
 
 By an .agreement for the sale of lind for $60, 
 000, $4,000 was to be paid on the execution of the 
 agreement, $40,795 within sixty days thereafter. 
 
 and the balance to remain on mortgage. The 
 purchasers paid the .§4,000 but refused to pay 
 the $40,795, to recover which tliis action was 
 brought : — Held, that the provision as to tlie 
 mortgage not stating when it was t(i be p.'iyaljle 
 (lid not render the agreement void for uncertain- 
 ty : — Held, also, that the plaintiff uouhl recover 
 the .§40,795 witliout tendering a conveyance of 
 the land, for that his right thereto was an inde- 
 pendent right, and not a concuirunt act with the 
 tendering such conveyance ; and at all events it 
 was the purchaser's duty to prepare and tender 
 the conveyance : that it was unnecessary for the 
 plaintiff to aver and shew that he liad a good 
 title, for he was oidy recjuired to make a gi,od 
 title when he could be called up(m to do so. whioli 
 could not be until the last instalment was de- 
 manded or defendant shewed his readiness and 
 willingness to arrange that according to the con- 
 tract ; and that it was therefore no defence to 
 aver that the plaintiff could not give a good title. 
 McDonald v. Murray et al, 2 O. II., C. P. J). 573. 
 
 See VauKomihnet v. Denisoii, 1 (>. H. ,349, p. 
 182; McKenzie v. Dwi;,ht, 2 0. R. 3o6, p. 720. 
 
 2. Delivery oj Possession, 
 
 The delivery to a purchaser of a house of the 
 key thereof is not of itself delivery of possession ; 
 it is but a symlxilical delivery, and may be evi- 
 dence of possession if given or received with that 
 view. The Peo/ili-'s Loan and Deposit Co, v. 
 Bacon, 27 Chy. 294. 
 
 Merely obtaining the keys of a building in 
 order to view the premises, so as to estimate 
 alterations intended to Ije made, and to perform 
 other acts to preserve the premises from dete- 
 rioration, is not such a taking possession under Ji 
 contract for sale as will bind the purchaser and 
 render him liable to pay interest on the purcliase 
 money. What will be a sufficient taking of pos- 
 session of a purchased house considered and 
 treated of. lb. 
 
 By one of the conditions of sale the purchaser 
 was required to pay a deposit of ten per cent, at 
 the time of sale and the remainder within one 
 month thereafter, and upon such paynunt the 
 purchaser was to be entitled to a conveyance and 
 to be let into possession of the property pur- 
 cliased : — Hehl, that under this condition the 
 payment of the purchase money by the pur- 
 chaser and the delivery to him by the vendor of 
 possession were concurrent acts, and unless the 
 vendor was in a position to put the purchaser in 
 possession he could not be called upon to yiiy 
 interest on the unpaid purchase money. Neither 
 w^as he bound in such a case to pay ground rent 
 accruing due upon the property whilst lie was so 
 kept out of possession. In such a case, letting a 
 purchaser into receipt of rents and profits is not 
 a compliance with the condition to give the pur- 
 chaser possession. Under such circumstances 
 the purcliaser was held entitle<l to make a deduc- 
 tion of a proportionate share of tlie taxes assessed 
 on the premises for the year in which the sale was 
 effected. Jb. 
 
 3. Interest and Taxes. 
 
 See The People's Loan and Deposit Co. v. Bacon, 
 27 Chy. 294, supra ; Harrison v. Joseph, 8 P, R. 
 293, pp. 724, 725. 
 
719 
 
 8 ALE OF LAND. 
 
 720 
 
 
 
 i'; 
 
 
 4. Pemiiilliifi <in tho Ground of Fntml. 
 
 Tlio (Ifffiidant and liis brotliur partitioned 
 thfir liimls, dcffnilaiit taking the west half of 
 a lot, on which was ,in hotel, and the brotiier, 
 the east half, on which a store^vas erected, each 
 snppiising tiiat the division lii>e ran hetween the 
 two l)uililings. The defendant sold his portion 
 to the pliintifl', who had lived opposite for many 
 years, the land lieing described as the west half 
 according to a phin. The hotel encioached npon 
 the east half at the rear end of the building about 
 thirty-four inches, the v.alue of the land en- 
 croached upon being very trilling. It appeared 
 that the hotel could be inove<l for about.?40; and 
 that defendant had otlered to jjrocure a lease of 
 the portion encroached upon at a nominal rent, 
 which was refused. The ])laintiff charged that the 
 defendant had falsely and fraudulently represen- 
 ted that the division line between the two lots ran 
 between tlie two Imildings, and brought an action 
 therefor, jiraying for a rescission of the sale, for 
 an .account of her improvcinents made, and for 
 damages. The deed was drawn after the alleged 
 misrepresentation and after the [ilaintiff knew 
 of the encroachment, and nothing was then said 
 about the line. The learned juilge at the trial | 
 foun<l that there was no false representation, l)ut i 
 he added delendant's brother as a party, and 
 
 might properly make. Per Armour, J. — The re- 
 presentation that the warrant w<iulil entitle the 
 plaintiff to IfiO acres of land comprehended the 
 affirmation of fact by the defendant that there 
 were then dominion lands subject to sale at $1 
 ])er acre, and this not being so the plaintiff should 
 succeed. McKenzie v. Dwiyht, 2 O. K., Q. B. 
 I). 3{)6. 
 
 III. Title. 
 
 1. lucumhrancrn. 
 
 (a) How Far a Dffi'ncc to Actions on Mortgagm 
 for the Purchane Miuh'i/. 
 
 Where on the sale and conveyance of land the 
 existence of .an incumbrance is concealed by the 
 vendor, who coven mts .ag.ainst incuml)r inceo: 
 and tne purchaser executes a mortg.ige to secure 
 a balance of unpaid purchase money, the <;ourt 
 will restrain an action to enforce p yinent f)f such 
 mortg.ige, brought at the instan' •■ of the mort- 
 gagee - or the voluntary transit je — unless the 
 .amount of the incumbrance so concealed i.i de- 
 ducted from the sum seoured by such mortgage. 
 This ])rinci])le was .applied in a case where the 
 purchaser was a married woman, and her hus- 
 ;ind had joined in and executed the mortgage. 
 
 directe.l him to c.mvey to the plaintiff tlie' land i ''•>' ^'''^'' l'^, covenanted to pay the amount se 
 
 cured thereby, although the covenant against 
 incumbrances war? to the wife and not to the 
 husband, the covenantor, himself. Lovelace v. 
 Harriuijton, 27 Chy. 178. 
 
 (b) PurchaxK Snhji'ct to Mortijoije. 
 
 Where a purch.aserof a portion of an estate sub- 
 ' ject to mortg.ige gave a covenant to p.ay a propor- 
 , - • , tion of the mortgage money, and a hill was filed 
 
 •ed to rely upon an entirely ,,y t,,^. vendor's assignee to compel payment by 
 JJuiiljur V. Meek; .ll L. 1. the puich.iser the court refused to give such re- 
 
 encroaclieil ii|ion : — Held, that the action could 
 not lie maintained, for, among other reasons, the 
 plaintill' knew of the encroachment when he took 
 the conveyance, « Inch made no jirovision respect- 
 ing it ; ami .'-he had so dealt with the pro]jerty 
 as to jireilude her from claiming a rescission : — i 
 Held, also, that under the circumstances, more 
 fully st itrd in the report of the case, the Iirother ' 
 should not have been added ; and the jilaintiff, 
 h.iving liased her action (Ui the ground of fraud, 
 .should not be allowed 
 different ground _ ^. .. t„e ,,„,. 
 
 •'''' lief excei)t up(m the terms of the vendor's sLare 
 The defend.ant was assignee of a Land w.arrant of the mortgage debt being paid at ■■',.■ sa^iie 
 issued to a constable of the North- West Mounted time, although there was no c>-'. .a iiie 
 
 Police Force, for service in that body, which en- ' part of the vendor that he won';.! i , 
 titled him upon its face to locate 160 acres upon I court relused to include a directioii .. n 
 any of the dominion lands, subject to sale at 61 ment by the purchaser of his sb' le 
 per .acre. The defendant induced the plaintiff j condition.al (m the payment by othei 
 to ]mrchase the warrant by representing to him \ pendent purchasers of other parts of the estate of 
 that he would be entitled to obtain from the ' their shares of the sum due. In such a case, 
 government KiO .acres of hind. There were lands | however, it would seem that any of such pur- 
 subject to sale at .$1 per acre when the warrant ' chasers paying the amounts properly payable by 
 was issued and thereafter. By various statutes ' others would be entitled to use the name of the 
 and orders in council the dominion lands were i plaintiff in proceeding against such defaulting 
 made subject to sale at higher prices than $1 per \ purr'.asers, upon indemnifying him against costs, 
 acre, but these land warrants were to be accepted i Clemow v. Booth, 27 Chy. 15. 
 by the government in part payment of !J1 per ^ ^^^^^^^ .,{ j^^^^ ^^-^^ ^^ere subject to in- 
 acre. ihe plaintiff w.as refused lands at $1 per , eumbrances created bv himself, covenanted with 
 acre by the crown, and then brought this action ; i.;„ i <.„ 
 
 ' . the 
 pav- 
 Id be 
 inde- 
 
 e. ihe plaintiff w.as refused lands at $1 per , eumbrances created by himself, covenanted 
 B by the crown, and then brought this action j ,^4^ ^g,„,^^ ^^ ^,flr (^^ incumbrances, and dis- 
 to rescind the s.ale to him on the ground of the ^j ^^^^ j^/^^j^ g^,i,i f^„,„ ^^^^j ^he vendee 
 
 misrepresentation Ihe jury found th.atdefen. ,u,,sL„e„t.y mortgaged the lands to the "'-"- 
 dant represented to plaintiff, to induce him to ^jg. ^j^j^ ^^^ ^^^J^ mortg.agor's covenan 
 purchase, that the warmnt would entitle him to ^...jtby plaintiffs seeking (amongst other 
 160 acres of land ; that the plaintiff purchased , , ,,„.,/.t„ u„j„ ,»i;..,.„,j „f fi,„ inn„ml, 
 
 j subsequently mortgaged the lands to the plain- 
 
 renants. In 
 lier things) 
 X. r i.!. r i.1 • 41 X 1.1 - I L- i to have" the lands relieved! of the incumbriiuces; 
 
 on the f'"th of this ; that the representation was _y^^^^^ ^^^^ ^j,^ plaintiffs were entitled to the 
 false ; and that defendant made It vvnthout know- ,jp„g^^ ^j the vendor's covenant, and he was 
 ing whether it was true or false, intending it to ^^^j^^^^^ ^^ discharge the incumbrances, and pay 
 be relie.1 upon :-Held Armour, J., dissenting, ^^^ ^^^^s of the incumbrancers. Clark v. BogaH, 
 that the plamtin must tail ; for the construction ,,-. p, a-q 
 of the warrant clearly expressed that the holder " ^' 
 
 was entitled to 160 acres of land at $1 per acre, [ Several parcels of land were embraced in one 
 and not simply to a credit of $160 on a purchase ' mortgage. Subsequently the mortgagor further 
 and the representation was such as defendant ; mortgaged some of them to the plaintiflfs with 
 
 
720 
 
 r, J.— Thore- 
 lil entitle the 
 rehondeil tlio 
 it that there 
 
 to sale at $1 
 laintifif 8honI(l 
 
 C». !{., Q. B. 
 
 OH MorlgagiK 
 I- 
 
 I'o of land the 
 
 coaled hy the 
 
 io(inii)raneeo: 
 
 ■ige to secure 
 
 ■y, the court 
 
 men t of aiich 
 
 of the niort- 
 
 e— unless the 
 
 iioealed i.s de- 
 
 ;ieli ino!tj;age. 
 
 ise where the 
 
 and her hus- 
 
 the mortgage, 
 
 le amount se- 
 
 enant against 
 
 id not to the 
 
 Lovelace v. 
 
 yf'.V'W- 
 
 f an estate sub- 
 ) ])ay a propor- 
 n l)ill was tiled 
 L'l payment hy 
 ) ''ivo such re- 
 
 at 
 
 .-• "aiie 
 lii I lie 
 ' ^. Che 
 
 ii, pay- 
 t'ld be 
 1 inJe- 
 
 1 ,i-'.i 
 •. re 
 
 >f the estate of 
 1 such a ease, 
 ,' of such pur- 
 ply payable by 
 e name of the 
 icli defaulting 
 I against costs. 
 
 subject to in- 
 kfeiianted with 
 lUces. and dis- 
 The vendee 
 1 to the plain- 
 ovenanta. In 
 t other things) 
 ncumbrances; 
 entitled to the 
 , and be was 
 noes, and pay 
 ark V. Bogart, 
 
 ibraced in one 
 tgagor further 
 plaintiffs with 
 
 I 
 
 721 
 
 SALE OF LAND. 
 
 722 
 
 the usual mortcagor's covenants. Ho aftiTw.irds 
 
 con 
 h 
 
 onveyed another jiarccl to S., who, when he took 
 ..i? conveyance, was not aware of the pi liiitid's' 
 mortgage, but it was registered against the [iir- 
 cels eiiibiMcod in it, thougli not against the otlior 
 pircels: — Hold, (I) Tint the plaintiffs wore en- 
 titled to reijuire as bet\vi!on them and S. that 
 the paroid convoyed to the latter should be re- 
 sorted to for th(! aatisfietion of the prior mort- 
 gage before recourse sbonld be had to the parcels 
 embraced in the jilaintiffs' mortgage. (2) That 
 the registration (if the prior mortgage against the 
 parcel bought l)y S. was notice to him of the 
 right of ptM'sons who jjiirohased other parcels 
 bjt'ore ho purchased to throw the mortgage upon 
 his ])ai'oGl. and that S. was affectcil with notice 
 of the j)l li itill's' mortgage, and the right it '.on- 
 ferred. Ih. 
 
 The pi lintiff ^luroliasnd a lionso and lot from 
 defend lilt for .«i-'OO0, paying -SIOOO in cish, and 
 assunii;i'4 a mortgagi; to a building soci(jty "on 
 which -S'!*!! is yot unpaid." and giving a mortgage 
 to th(! dofondant for tlio lialanoe. The ilefondd ' 
 covenanted tint lio bad not iiK'umbercd. save ; 
 aforesaid. Siibsocpient iiKjuiries showed tint 
 there wore diu^ the soeioty a 'Vi'iity-ono inontlilv 
 instaluionts of SlU.?."), in all i? 1 1 SO. 2 5, and tlie 
 plaintifY insisted that she was entitled tri credit 
 from the dofondant for the differoiico biitwoon 
 $r)()4 and the 1 itter sum. Hut : — Held, that the 
 plaintiff was ontitlod to retain in his bunds only 
 the casli value of the moi tgage at the date of 
 his ])uroliase, if the society would accept it, if 
 not tlien suoh a sum as, with interest on it, would 
 meet the accruing piymonts. The defendant by 
 his answi'r admitted an error in the computation 
 of the amount duo the society, and offered to pay 
 the differonce between the !?()()4 and \i hat he 
 alleged w is the cash value and costs up to that 
 time: — Hold, that in tiie event of the society ac- 
 cepting present payment of the cash value, the 
 defendant was entitled to his costs of suit, subse- 
 quent to answer. Stark v. Shcplirrd, 20 Chy. 3 1 (!. 
 
 M. conveyed land to tlie plaintiff subject to a 
 mortgage to the T. & 1^. Co. for .S2. 000, and one 
 to C. for $')00, which the plaintiff covenanted to 
 pay and save M, harmless tlierefrom. The plain- 
 tiff then conveyed to the defond.iiit in considera- 
 tion of ".Sl.OoO and assuming the payment of 
 the mortgages " aforesaid. Tiie defendant g ive 
 back a mortgage for the b dance of ]mrchasc 
 money. He went into possession and paid some 
 interest on the T. & L. Co. mortgage. .Subse- 
 quently a now arrangomeut was mule, and the 
 defendant's mortgage was discharged, and a 
 mortgagi) for 81,8.")0 was given by the defend int 
 to the plaintiff, which includ 'd the amount of 
 three promissory notes for 1$3.")0 and other items, 
 besides the b.ilance of the purchase money. 
 There was no covenant for payment therein. 
 The T. & L. Co, mortgage fell due and was not 
 paid, and the plaintiff paid C.'s mortgage of 
 |500 : — Held, that the defendant was bound to 
 pay off the T. & L. Co. mortgage and relieve the 
 land therefrom, and indemnify the plaintiff 
 against it if personally liable thereon. Caiiavaii 
 y. Meek, 2 O. R., Q. B. D. 63G. 
 
 M. , who was the owner of Whiteacre and Black- 
 acre, both subject to incumbrances of .^I,GO0 and 
 $'00, sold Whiteacre to C. subject to the §1,600 
 mortgage, with covcn.anta for title, save as to 
 that mortgage, the mortgage debt in reality being 
 
 46 
 
 the consider.ation or purchase money therefor. 
 M, afterwards sold Blackacrc to X., subject to 
 the .§"(00 mortg ige, which conveyance also con- 
 tainod ab-ioluto cic'enints for title, the piyiiient 
 of the !?'iOD being taken as part of the cmisidera- 
 tion. Default h iving boon m.ade in payment of 
 the .?1,()00 mortgige, the mortgagee procoodeil 
 to a sale under the power, and .\. bee ime the 
 purchaser of both |)arcelawith a view of protect- 
 ing himself, and tln^rcupon took proceedings to 
 comiiol M. and the representativos of C to pay 
 tlie amount due on the iji!l,()00 mortgige : — Hchl, 
 ilfirming the judgnnait; of the court below (28 
 Chy. 334), that there was not any privity be- 
 tween the plaintiff" and C.'s reprcsont itives. and 
 that the dem ind remained with .M., the original 
 vendor, against C.'s estate, y^arris v. Mntdown, 
 7 A. R. 237. 
 
 See Kempt v. Mnotii/i;/, 9 P. R. 582, p. 105. 
 
 (c) Discharge nf, hi/ Vemlor. 
 
 A vendor agreed to pay off a mortgage existing 
 on the pro|)orty, and the decree direote I a good 
 and suiii'jioiit conveyance "according to said 
 agroeinent." The defoiidant, the vendor, neg- 
 lectod to pay off the; mortgaga, and the plaintiff' 
 thereupon moved upon petition to atnjnd the 
 decnte by ordering the defendant to obtain a 
 discharge of such incumbrince ; but the (sourt 
 (Boyil, (,'..) ilireotod tint the vendor pay off the 
 mortgage within a limited time, or in default, 
 that the purchaser slunild be at liberty to do so, 
 procure an assignmoiit, and have his remedy 
 against the vendor, whose convevance he was 
 not bound to accept till this mortgag,^ was p.aid 
 off ; tlie purchase money in court to be apiilied 
 pro tanto thereto :— Hold, also, that as the mat- 
 ter had h:c\\ refei-rod to the mastor by the decree, 
 which was for sp.!cific performance, it should 
 have been disposed of in his offi 'e under G. O. 
 22(5. Stammers v. O'Dtmohne, 29 Chy. 6-1. 
 
 2. Cloud on Title. 
 
 A bill alleged that a mortgage was executad 
 by W. to tlie defendant in consideration of !54."»0, 
 that defeuilint advanced onTy §150 thereon, 
 and W. being entitled to receive the balance 
 assigned such right and conveyed his ei|uity of 
 redemption to the plaintiff. Th it thj di^reiiilant 
 refu.sed to pay the balance and claiina 1 to hold 
 the mortgage as security for .'J 150. Tlia prayer 
 was for spocitic performance or,in the altorn itive, 
 a declaration of the ab.)ve facts, and for general re- 
 lief. At the hearing, the learned judge allowed a 
 demurrer ore tenus, on the ground th it an agrec- 
 in:;nt to lend money could not be specitieally 
 performed :— Held, reversing this judgment, 
 that upon the facts alleged in the bill, namjly, 
 that the mortgage was being helil for more than 
 had been adv.inco.l thereon and therefore to 
 that extent formed a cloud on the title, the 
 plaintiff would be entitled to a declaration to 
 that effect, and appropriate relief ; and as the 
 demurrer admitted the truth of the allegation it 
 should have been overruled. Caloert v.Buriifiam, 
 6 A. R. 620. 
 
 S., believing that his father (still living, but of 
 unsound mind) wa^ entitled to certain lands to 
 which the plaintiffs claimed title, took the advice 
 
723 
 
 SALE OF LAND BY ORDER OF THE COURT. 
 
 •24 
 
 r ■ 
 
 
 of Ilia solicitor, C, who, being adviseil by coun- 1 
 Bel, instructed by S., prepared and registered! 
 an inatninicnt, whereby he, 8., stiited that he { 
 claiii>.ed tlie lands, and would upon the demise 
 of his father commence proceedings for their re- 
 covery. The jilaintitl's were thus obstructed in 
 tlie sale of their lands, and brought an action 
 against S., C, and the Registrar, to leniove the 
 iustruuicnt from the register, as being a cloud on 
 the title, and for damages. I'roudfoot, J., dis- 
 missed the action as against the registrar, but 
 gave judgment, with a reference to assess dam- 
 ages, against S. and C, (4 O. R. 473) :— Held, 
 that the Registry Act did not autiiorizc the re- 
 gistration ot such an instrument : and, Cameron, 
 J., dissenting, that an action would lie for its 
 removal. Oiilario hdutstiial Loan and Invest- 
 VII lit CoiiipcDiy V. Lindiey et al., 3 0. E., Q. B. 
 D. 60. 
 
 The plaintiff was owner in fee of certain lands 
 which were conveyed to him by deed of 27th 
 July, 18GS, registered 11th August, 1SG8. Sub- 
 Btquently, by mistake, the said lands were sold 
 for taxes, althougii no taxes were actually in ar- 
 rear ; and by dei 1 of 11th March, 1880, were 
 eoHveyed to A. Mel.., tiie tax purchaser, vhich 
 deed was registered 18th May, 1880. On 29th 
 November, 1881. A. McL., conveyed the said 
 lands to tT. \V. by deed absolute "n form, but in- 
 tended as security for money atlt'anced by J. VV., 
 which deed wjis registered 1st December, 1881. 
 The plaintiti' found out that this sale for taxes 
 had taken place shortly before bringing this 
 action, in which he sought the cancellation of 
 the deeds to McL., and J. \V. :— Held, that the 
 plaintiff was entitled to have the deeds cancel- 
 led, and J. W. was entitled to judgment against 
 A. McL., for the moneys advanced by him. 
 Charlton v. WaUon et al., 4 O. R., Chy. D. 489. 
 
 IV. Peeparation and Tender of Conveyance. 
 See McDonald v. Murray et al., 2 0. R. 573, 
 
 p. 718. 
 
 SALE OF LAND BY ORDER OF THE 
 COURT. 
 
 I. Biddings, 724. 
 
 II. Tenders, 724. 
 
 III. TiTLB, 724 
 
 IV. Taxes, 724. 
 
 V. Purchase Money. 
 
 1. Payment into Court, 724. 
 2: Interest, 725. 
 
 3. Abatement of, 725. 
 
 4. Applicalion of, 725. 
 
 5. lieturn of Deposit, 726. 
 VI. Ve.sting Order, 726. 
 
 Vn. Giving up Purchase, 726. 
 
 VIIL Setting ASIDE Salk, 726. 
 
 IX. Miscellaneous Cases, 726. 
 
 X. Sale of Mortgaged Premises - 5ec 
 Mortgage. 
 
 1. Biddings. 
 
 A master has no power to give leave to bid to 
 a party conducting a sale. Application must be 
 made to the court. Re Lni/cock — McGiUicray v, 
 Johnsun, 8 P. R. 548.— Blake. 
 
 Liberty of trustee to bid at sale. 
 , lUcker, 7 A. R. 282. 
 
 II. Tenders. 
 
 See Ricker 
 
 On the reference under the decree in a mort- 
 gage suit, the plaintiff put in several atH<lavit8 
 as to the value of the jjroperty, SS.'itIO being the 
 highest price named in them. The <lefen(lant did 
 not tile any affidavits in reply. The plaintiffs 
 then tendered S35(X) for the property, which the 
 master declined to accept witliout an order direct- 
 ing him to do so. The referee on ajiplication re- 
 fused such order, and on a])peal, Sjiragge, C, 
 upheld his judgment. Ramsau v. McDonald, 8 
 P. R. 283. 
 
 IIL Title. 
 
 In a sale under a decree :— Held, that the 
 purchaser had no right to certified copies of re- 
 gistered iind other documents i)rocure(l at tlie 
 exi)eiise of the vendors. Ilarrisoii v. Josijih, 8 
 P. R. 293.— Stephens, Referee. 
 
 Where a bill was served on a defendant per- 
 sonally, and about a year afterwards a liiial order 
 of foreclosure was granted in the suit: — Held, 
 that a purchaser was noi entitled to insist on 
 the plaintiff (the vendor) proving that the defen- 
 dant was alive when the hnal order was made. 
 Henderson v. Spencer, 8 P. R. 402. — Spragge. 
 
 See MvDermidv. Mi'Dermid et al., 8 P. R. 28, 
 p. 725; Laplante v. Seamen et al., 8 A. R. 
 557, p. 725. 
 
 IV. Taxes. 
 
 The purchasers claimed that the vendors should 
 pay a proportion of the taxes for tlie year 1 880 
 up to (jth Marcli, when the title was acceiited 
 and possession given. The by-law for the collec- 
 tion of taxes in Toronto for 1880, was passed on 
 the 2nd April, 1880, and provided that the taxes 
 should be due and payable on 4th .June, 1880, but 
 that if an instalment was then paid, further 
 payment by instalments might be made on the 
 15th July and 3rd September :— Held, that un- 
 der R. S. O. c. 174, 8. 347, and the terms of the 
 city by-law, no taxes were due so as to form a 
 charge on the land until 4th June, the date when 
 the hrst instalment of taxes was due, and that 
 the vendors therefore were not bound to pay any 
 part of the taxes for that year. Harrison v. 
 Jo.-<eph, 8 P. R. 293.— Stephens, Referee. 
 
 V. Purchase Money. 
 
 1. Payment into Court. 
 
 On a sale under a decree, the purchaser, ex- 
 cept under special circumstances, will not be 
 compelled to pay his purchase money into court 
 until he has accepted or approved of the title 
 
724 
 
 725 
 
 SALE OF LAND BY ORDER OF THE COURT. 
 
 725 
 
 leave to bid to 
 udtioii must he 
 aicd'il/irrin/ v. 
 
 e. Sue Kicker 
 
 cree in a mort- 
 
 vfnil atKdavits 
 
 :ri(iO luting the 
 
 defendant did 
 
 'J'iie |ilaintiff8 
 
 ■rty, which the 
 
 an ordiidiieut- 
 
 a])plication re- 
 
 I, Spragge, (\, 
 
 iVcDoitnhl, 8 
 
 Held, that the 
 ud copies of re- 
 ii'ocmed at the 
 
 lull V. Joxcpll, 8 
 
 ilefuiidant [)er- 
 rds a final order 
 iti suit : — Held, 
 I'd to insist on 
 ; that the defen- 
 der was made. 
 2.— Spragge. 
 
 al., 8 P. K. 28, 
 t al., 8 A. R. 
 
 J vendors should 
 ir the year 1880 
 e was accepted 
 w for the collco- 
 was passed on 
 d that the taxes 
 June, 1880, but 
 1 paid, further 
 be made on the 
 ■Held, that un- 
 he terms of the 
 
 as to form a 
 ', the date when 
 
 1 due, and that 
 )uud to pay any 
 
 llarriiun v. 
 Bi'feree. 
 
 iY. 
 
 irt. 
 
 purchaser, ax- 
 is, will not be 
 oney into court 
 ^ed of the title 
 
 or the master has reported that the vendor can 
 make a good title. McDermid v. McDermid et 
 «/., 8P. R. 28. -Blake. 
 
 One of the defendants in a suit purchased the 
 lands in question upon a sale under the usual 
 decree for partition or sale. The appellant, the 
 plaintiff, was first mortgagee, and the purchaser 
 was second mortgagee of the interest of one S., 
 the owner of an undivided sixth interest in the 
 lands :— Held, that the purchaser was entitled to 
 a conveyance from 8. with the usual covenants 
 for title as to his interest, and was not bound to 
 accept a vesting order. Cameron, J., doubting, 
 whether the (juestion was not one of conveyance 
 rather than one of title, and whether therefore 
 the purchaser should not b' ordered to pay his 
 purchase money into court. Quttire, whether the 
 appellant, whose only interest was that of mort- 
 
 fagee of S.'s interest, had any locus standi to 
 ling a suit for partition, or to appeal without 
 his uoplaiutiff. Laplante v. Scaiueu et uL, 8 A. 
 B. 557. 
 
 (See also Sub-head V. 4, infra. ) 
 
 2. Interest. 
 
 Where in a sale unler a decree, no undue de- 
 lay in investigating the title is attributed to 
 either party, interest upon purchase money is 
 payable only from the dute of the acceptance of 
 the title, and not from the time named in the con- 
 ditions of sale. Harrison v. Jose^ik, 8 P. R. 293. 
 
 3. Abatement of. 
 
 Where land was advertised for sale under a 
 decree, and the purchaser, the owner of the ad- 
 joining lot, who had also been in possession, by 
 his son, of the advertised premises, teiulereil for 
 them, knowing that the lands comprised fewer 
 acres than the advertisement stated, and intend- 
 ing to seek an abatement after the purchase was 
 completed, and a subsequentincumbranceroti'ered 
 to give the same price for them as the purcha- 
 ser : — Held, that the petitioner should be put to 
 his election either to take the land without 
 abatement of the purchase money, or to let it go 
 to the subsequent incumbrancer. Carmichael v. 
 Ferris, 8 P. R. 289. — Stephens, i?^ere«— Blake. 
 
 4. Application of. 
 
 The bill was filed by a second mortgagee, the 
 first mortgagee not being maile a party. At a 
 sale under the decree, M. purchased the land, and 
 afterwards paid the purchase money into court; 
 he then mortgiiged the land, then conveyed his 
 equity of redemption, and then took out a vest- 
 ing order. Grant, a subsequent mortgagee, 
 claimed payment of his claim out of the moneys 
 in court. On the 19th November, on the appli- 
 cation of M. , the referee made an order, directing 
 payment to the assignee of the first mortgagee of 
 his claim out of the purchase money in court. 
 It appeared that M . thought he was purchasing 
 free from incumbrances, and was ignorant of the 
 first mortgage. On appeal, Proudfoot, V. 0. , 
 upheld the referee's order. Fleming v. McDougall, 
 8 P. R. 200. 
 
 See Hyde v. Bartm, 8 P. R. 205, p. 222. 
 
 5. Return of Deposit. 
 
 At a sale under the standing conditions of sale 
 of the CO .rt the purchaser paid ten percent, of his 
 i)urchase money, but made default in plying the 
 balance, and on a re-sale tlie proj-ir'y brought 
 $'25 more than at the first sale. Boytl, (J., refused 
 an application by the purchaser to iiave his de- 
 posit repaid to him, but as it appeared that the 
 deposit would cover the expenses and costs in- 
 curred by the re-sale, he directed that the pur- 
 chaser should not be required to pay liiem iu 
 addition. Till v. Knapp et al., 9 P. R. 314. 
 
 VJ. Vf.stinu Order. 
 
 See Fleminqv. McDomjaU, 8 P. R. 200, p. 72.') ; 
 Hyde V. liartun, 8 P. R. 205, p. 222, 
 
 VII. Giving up Purchase. 
 
 At a sale under a decree on the 2oth March, 
 1879, A. purchased the land in (piestion. On 
 the 19th April, 1879, he transferred his interest 
 to W., and on the 26th April, one H. purchased 
 and took an assignment of the dower of one S. in 
 the land. On the Kith Fel)ruary, 1880, A. ap- 
 plied to be released from the contract to pur- 
 chase on the ground of the outstanding dower. 
 The evidence shewed that S. had agreed with 
 the heir-at-law to accept a gross sum in lieu of 
 her dower, that \V. really purchased the dower, 
 but took the assignment in H.'s name, and that 
 this application tliough in A. 's name, was really 
 made by \V. : — Helil, that no relief could be 
 granted, the applicant having himself created tlu 
 obstacle by means of which he sought to prevent 
 the sale being carried out. Frastr v. Gunn, 8 P. 
 R. 278. — Spragge. 
 
 See Tilt V. Knapp et al., 9 P. R. 314, supra. 
 
 VIII. Setting aside Sale. 
 
 Although a decree of sale should direct the 
 same to take place with the approbation of the 
 master, the omission of such direction is no 
 ground for moving to set aside the sale under the 
 decree, where the same really took place with 
 such approbation, e\ en in a case where infants 
 are interested, liicker v. Kicker, 27 C'liy. 576 ; 
 7 A. R. 282. 
 
 See Campion v. Brachenridije, 28 Chy. 201, p. 
 50. 
 
 IX. Miscellaneous Cases. 
 
 Where a decree directed a sale of certain pro- 
 perty at the expiration of a year from the date 
 of a master's report, a sale at the end of a year 
 from the date of the decree, instead of the date 
 of the report, was allowed under special circum- 
 stances, on the ground that the decree was in 
 eflfect equivalent to a judgment at law. Porte v. 
 Irwin et ax., 8 P. R. 40.— Blake. 
 
 A purchaser at a sale under decree signed the 
 usual contract to purchase, and paid the deposit. 
 The next day the buildings on the property were 
 burned down : — Held, by Proudfoot, V. C. , on 
 appeal, reversingthe decision of Stephens, referee, 
 8 P. R. 166, that the loss would not fall on the 
 
727 
 
 SEQUESTRATION. 
 
 728 
 
 C 
 «c 
 
 r 
 
 ■a 
 
 purcliaser, an Mie interest contracted for did not 
 vest ill liirn till t'lu iviiorton rhIu was coiiliriued, 
 Stvtih('ii>i»ii V. liuin, 8 I'. Jl. 258. 
 
 SAT.ftON. 
 
 .S'cc Tavehns and Siiiirs. 
 
 SATISFACTION. 
 
 Sci' AccoiiK AM) Satisfaction. 
 
 SCHOOLS.! 
 See I'nii.Kj Schools. 
 
 SCIRE FACIAS AND REVIVOR. 
 
 A pl.iiiitifT ill an action for dower recovered 
 judgment, but liel'ore the execution of the writ 
 of iiBsignniciit of (lower, and after its issue, the 
 ten;int ot the freehold died, having devised the 
 land iiKjuestioii to the inesent defendant :— Held 
 that the plaintitl' must i>roceed againstthe devisee 
 by scire fiicias, and not hy suggestion or revivor. 
 JJiifiiv. JJciiiii.i'iii, 8 1'. U. 7.— Haij'arty. 
 
 Held, that since the \>assing of 35 Vict, c. 12, 
 8. I, Out., (H. S. (t. c. 11(C) the assignee of a 
 judgment is entitled to revive the same in his 
 own name hy entering a suggestion on the roll. 
 P/iitij.'x V, Foj; 8 P. R. ,il, — Oalton, Q. C. 
 
 An order of revivor was obtained in the cause 
 on the gnnmd that the sole plaintiff had assigned 
 all his interest, iVc, to one Close. The plaintiff 
 applied to the court hy petition to set aside the 
 oriler, disputing the assignment on the allegation 
 of which the order was obtained. Proudfoot, 
 V. C, discharged tlieorderof revivor with costs. 
 Fus/cfti v. Jure (/ (tl., 8 P. i'!. 147. 
 
 See Russ v. Pomeroji, 28 Chy. 435, p. 425. 
 
 SCOTT ACT. 
 See Canada Tkmi'krance Act, 1878. 
 
 SCRUTINY. 
 iS'ee Pakliamentary Elections. 
 
 SEAL. 
 
 CONTRACT.S WITn CORI'OKATIONS- 
 TION.S. 
 
 -See CoRPORA- 
 
 The testimonium clause in a power of attor- 
 ney declared that the principal set his hand and 
 seal to the instrument. The attestation clause 
 declared that it was signed and sealed in the pre- 
 sence of a subscribing witness, and opposite the 
 signature of the principal was a visible impres- 
 
 sion made by the pen in the form of a scroll, in 
 which was inscribed the word "seal :"— Held, a 
 suflicicnt sealing of the document, lie Bell ati't 
 Black; 1 O. 1!., Chy. D. 125. 
 
 SECURITY. 
 
 I. COLLATEUAL— -SVe COLLATERAL SECURITY. 
 
 II. For Cv»ivn—See Costs. 
 
 SEDUCTION. 
 
 Held, following Hodsoll c. Taylor, L. R. 9 Q. 
 B. 7!>. that in an aetioi,- for seduction evidence as 
 to defendant's means is inatlinissiblc ; and that 
 evidence of the kind having been received, de- 
 fendant was not to be i)rejudiced in his applica- 
 tion for a new trial because his counsel had, 
 after having done his best to exclude the evi- 
 dence, examined defendant on the same subject 
 with a view to disproving the estimate jilaced on 
 his means. FeiiiiiMin v. Veitrh, 45 Q. B. 160. 
 
 Where an unmarried woman is seduced and 
 pregnancy follows, or sickness which weakens 
 or renders her less alile to work or serve, the 
 father's cause of action is complete, and cannot 
 be divested by the subsequent marriage of his 
 daughter before birth of a child. The facts of 
 seduction, pregnancy, and illness might l)e proved 
 by the daughter, but she might refuse to answer 
 as to who was the cause of her pregnancy if she 
 asserted that the chihl she bore was born in wed- 
 lock. EvauH V. Walt, 2 O. R., Q. B. D. 166. 
 
 But where the daughter was married to a third 
 person during her ))regnancy consecjuent upon 
 her seduction by the defendant, and her child 
 was born in wedlock, and the action was brought 
 at the instigation of the husband, he and liis 
 wife being the only witnesses, and no proof of 
 sickness or inability to serve was given : — Held, 
 (Armour, J., dissenting,) that a nonsuit was pro- 
 perly entered. Per Armour, J, If loss of ser- 
 vice was necessary to be proved, a new trial 
 should be granted for that purpose ; and it can- 
 not be said that under such circumstances a 
 father sustains no damages apart from the lots 
 of service. Jb. 
 
 Held, affirming the judgment of Cameron, J. 
 9 P. R. 206. that under the Insolvent Act, 1864. 
 sec. 9 sub-8. 5, k discharge in insolvency would 
 form no answer to proceedings upon a judgment 
 against defendant for seduction. Beninyer v. 
 Thrasher, 1 O. R., Q. B. D. 313. 
 
 Arrest under Ca Re.- 
 8 P. R. 189, p. .334. 
 
 -See Wheatly v. Sharjt, 
 
 SEPARATE SCHOOLS. 
 See Public Schools. 
 
 SEQUESTRATION. 
 
 On moving for a writ of sequestration for a 
 breach of an injunction, two cle;ir days' notice of 
 motion is sufficient. Cook v. Credit Valley R. W. 
 Co., 8 P. R. 167.- Blake. 
 
728 
 
 729 
 
 SESSroNS. 
 
 730 
 
 of a acrnll, in 
 
 al:"-llul{l, u 
 
 l(e Bill and 
 
 KAL Security. 
 
 or, Ty. R. Q. 
 
 Ill evidence as 
 k- ; and that 
 ii'Cfcivdd, de- 
 ll )iia a[iplicn- 
 cdiiiiscl had, 
 luile thi! cvi- 
 sairio subject 
 natc [ilaced on 
 Q. B. ICO. 
 
 seduced and 
 'liicli weakens 
 
 or serve, the 
 
 te, and cannot 
 
 lari'iage of his 
 
 Tlie facts of 
 
 iglit l)e proverl 
 fuse to answer 
 egnancy if she 
 ,s born in wed- 
 
 B. D. 166. 
 
 •ried to a third 
 iseqiient upon 
 and her child 
 tn was brought 
 d, he and his 
 ul no proof of 
 given :— Held, 
 )nsuit was pro- 
 If loss of ser- 
 l, a new trial 
 e ; and it can- 
 rcumstances a 
 ; from the lo»s 
 
 t Cameron, J. 
 ■ent Act, 1864. 
 olvency would 
 on a judgment 
 Beninyer v. 
 
 iatly V. Sharjt, 
 
 LS. 
 
 atration for a 
 days' notice of 
 it Valley R.W. 
 
 Held, that a writ of sequestration could not 
 issue, under Itulc WWW, on an ordinary enninion \i\\\ 
 judgment for a debt recovered lielore the passing 
 of the Ju<lieature Act, it not being an order for 
 payment ol a specific sum, an<l no day named fur 
 payment in it. Tlio pro[)erty sought to l)e se- 
 (juestered, was property in the h.imls of fi\'e 
 trustees under a will. 'I'wo of the trustees, one 
 of whom was the juilgment delitor and took u 
 life interest in part of the property, resided w itiiin 
 the jurisdiction, the other trustees resideil onto' 
 the jurisdiction in .St. Jidin, N. H. : — Held, that 
 sorvicu of a notice of motion founded on sucli 
 writ of si'(iuestriition on such non-resident trus- 
 tees was sutlicieiit, though a judgment or decree 
 founded upon it would not avail the plaintill's in 
 vhe courts ol New Brunswick. The Luitilon and 
 Cuiiailiaii Loan and Aijvncy Co. v. MvrrUt, W'Z C 
 l*. 375. 
 
 Senible, that under a writ of setpiocitration a 
 Uebtur'a uhoses in action can be reached, lb. 
 
 SERVANT. 
 
 See Masteh and Servant. 
 
 SERVICE OF PAPERS. 
 See PiiACTiCE. 
 
 SESSIONS. 
 I. Convictions. 
 
 1. Amendinerd oJ\ 729. 
 
 2. Aft/ieuls from MaijislruteK, 729. 
 
 3. Appeals from Sessions, 730. 
 
 II. Mandamus to — See Mandamus. 
 
 I. Convictions. 
 
 1. Amendment of. 
 
 Where an appeal was brought from a convic- 
 tion imposing imprisonment witli hard labour, 
 which the magistrate hadno power to award, and 
 the sessions amended the record by striking out I 
 " hard labour." Held (Cameron, J., diss.), that 
 their assuming so to amend the conviction was 
 not a quashing of the conviction, and therefore 
 trespass would not lie .against the justices. Me- 
 Lellan v. AJcKinnon, 1 O. R., Q. B. D. 219. 
 
 Per Armour, J., the General Sessions of the 
 peace have no power under 32-33 Vict. c. 31, to 
 amend the sentence in a conviction as by strik- 
 ing out the part imposing hard labour, but can 
 hear and determine an appeal on the adjudica- 
 tion of guilt only. Hagarty, C. J., inclined to 
 agree, but gave no express decision on this 
 point. Jb, 
 
 2. Appeals from Magistrates. 
 
 Held, that the prosecutoi' of a complaint can- 
 not appeal from the order of a magistrate dis- 
 missing the complaint ; as by R. S. O. c. 74, s. 
 4, the practice of appealing in such a case is 
 
 assimilated to tliat under Horn. Stat. .13 Vict, 
 e. 47, which eoiiliiii s the ri^lit of np[)iMl to the de- 
 fendant. A pidhibitioii was tberet'ore ordered, 
 but without costs lis the objection to the juiisdic- 
 tioii hail not lieeii tikeii in the court below. In 
 I,: Murphy and Uorninh, 8 P. R. 420, -Osier. 
 
 3. Aji/>eiil-i /'mm Se.-iiiDns. 
 
 A conviction may bo returned and proved at 
 any time during the hearing of an appeal tliere- 
 froiii to the general sessions, or, in the iliseretion 
 ot the chairman, even during an ailjoiirnnient for 
 judgment. /« re liyer ami J'Iuiih, 46 Q.. B. 206. 
 
 A minute of conviction signed by the justice, 
 but not sealed, was returned to the scsions, 
 upon the entering of an appeal therefrom by 
 the delendants. The jury found the ilefen- 
 daut uuilty of the oU'ence of which he had been 
 convicted, but on motion for jiidginent he ob- 
 jected that the conviction was not sealed. The 
 chairman reserved judgment until ail ly named, 
 and during the ailjoiirnnient the justices returned 
 and tiled a eunvietion under seal. The cliainnan 
 then declined to receive it, or to give jiidgiiient, 
 holding that there was no con vietion upon which 
 to found the appeal, which had been he.ird : — 
 Held, that the proseeiitoi' wa.s not entitled to a 
 mandamus to compel liim to deliver juil<;iiieut ; 
 lor the reception of the conviction in evidence at 
 that period was in the ch.iirm.in's discretion, 
 which could not be reviewed. Jb. 
 
 On an appeal to the sessions from a conviction 
 by a magistrate for breach of a numicipal by-law, 
 it is in the discretion ot the chairman tograntor 
 refuse a request for a jury, under 3(i \'ict. c. 58, 
 s. 2, which is deelar.itory of the meaning of sec. 
 66 of the 32-33 Vict. c. 31, and is not confined 
 to cisca under the Acts mentioned in the pre- 
 amlilo and title, which relates only to the de- 
 sertion of seamen. J'eyiiia v. Waahinijtun, 46 
 Q. B. 221. 
 
 On the appeal the appellant tendered evidence 
 and witnesses not heard on the trial before the 
 nuijiistrate which the chairman rejected, relying, 
 on 32-3.1 Vict. c. 31, s. 66, which, however, had 
 been repealed by 42 Vict. c. 44, s. 10. The con- 
 viction was amended and atlirnied, as and for a 
 breach of a municipal by law :— Held, that the 
 appellant had the right, under either the Uomi- 
 nion Act, or U. S. O. c. 74, s. 4, which governed 
 the case, to have such witnesses examined, and 
 having been depriveil of this right, the order of 
 sessions should be quashed, lb. 
 
 On an application to quash a conviction 
 brought up upon certiorari, the court will not 
 notice any facts not appearing in the conviction, 
 for the purpose of im(ieaching it on any ground, 
 except want of jurisdiction ; nor has the court 
 any power to review the decision of the sessions 
 in a matter within their jurisdiction, nor to 
 grant a mandanms to compel them to rehear an 
 appeal. The court, refused, therefore, to quash 
 a conviction under the Liijuor License Act, 
 atlirmed on appeal, on the ground, among others, 
 that. the general verdict of guilty was inconsis- 
 tent with the answers of the jury to specific ques- 
 tions. Keijina v. Graiwjer, 46 Q. B. 382. 
 
 See 3IcLellan v. AlcKinnon, 1 0. R. 219, p. 729. 
 
731 
 
 SHERIFF. 
 
 732 
 
 1- 
 
 **■■ 
 
 RKTOFF. 
 I. In Insolvkncv I'liocKKniNna— i?*?* Bank- 
 
 KLTTt'V AND INSOLVENCY. 
 
 11. Of Costs— .S'cp CoHTS. 
 III. I'LKAr^rv i ("oi'NTKR Claim or Set-off — 
 
 iSVc I'i.EAUINO. 
 
 'I'lic iilaiiitifT h.i<l rccovcrpil a verdict for $(iO() 
 ajrainst (lofciidant for iiinliciouH jiroBcuution, l)ut 
 jiiilgiiicnt liiiil not Ixicn sigiit'd thereon. At the 
 Bftiiie AHxizes the d<!t'cii(hint recovered a verdict 
 a^'iiinst tlic ]iliiiiititrt<)r $:tKO on iironiissory notes, 
 and Hijjned jiidj;nient. 'I'lio pIiiintitT aluKist im- 
 mediately after its recovery aHsi^ned his verdict 
 to liis hroth(!r, Init the court ludd this to he a 
 device to prevent a set off :— Held, tiiat the 
 defendant was entitled to have the ])laintifl"9 
 verdict set-off pro taiito by entering satisfaction 
 njion liis judgment to the extent of the verdict, 
 and paying the costs of suit ; and it made no 
 dill'erence that the judgment hud not })een enter- 
 ed hy the plaintiff, ilnmt v. McAlpinc, 4() Q. 
 B. 284. 
 
 A mortgagor and mortgagee dealt together for 
 some years without having had any settlement 
 of accounts, and the former hecanio insolvent. 
 At the date of tlie insolvency there existed a 
 right of set-off, in favour of the mortgagor for 
 the balance due him on their general dealings : — 
 Held, ailirniing the finding of the master, that 
 such right of set (itf passed to the official assignee 
 of the mortgagor, and that a transferee of the 
 security took it sul)jeut to the equity. Court v. 
 Holland, 29 Uliy. 1!). 
 
 .See Culverwell v. Campton el ai, 31 C. P. 342, 
 p. U4ti. 
 
 sp:ttled estates act. 
 
 See lie Smith's Truxts, 4 O. R. 518, p. £34. 
 
 SETTLEMENTS. 
 
 Marriage SErrLEMKNTs.- 
 
 WlFE. 
 
 -See Hdsband and 
 
 SEWERS. 
 See Municipal Corporations. 
 
 SHADE TREKS. 
 See Douglas v. Fox et at., 31 C. P. 140, p. 793. 
 [Sec 47 Vict. c. 36, Ont.] 
 
 SHERIFF. 
 Actions and Proceedings by Shei-mi.. 
 
 1. Venue, 732. 
 
 2. Interpleader on Adverse Claims. — See 
 
 Interpleader. 
 
 II. DttTY and Liability on Whits of Exe- 
 cution. 
 
 1. Landlord'H Claim tor Ri'nl after Svi- 
 
 zure undrr Uxccnlion, 732. 
 
 2. In Bailable ProreedimjH.—See Bail. 
 
 3. Properly Liable. 
 
 (a) Under fi. fa. Goods or Lands, — 
 
 See KXKCUTION. 
 
 (b) For Arrearx of Taxes. — See 
 
 A.S.SK.SSMKNT AND TaXES. 
 
 III. Fees. 
 
 1. When Office of Sheriff is Vacant, 732. 
 
 2. Poundaije, 73.3. 
 
 3. Taxation of, 733. 
 
 I. AcrioNs and Prockedings by Sheriff, 
 
 1. Venue. 
 
 In an action wherein a sheriff is plaintiff or 
 defendant, the opposite party, if ho so desires, 
 may have the action tried in the county adjoin- 
 ing that ! 1 which the sheriff' resides. Brannen 
 V. Jarvi^, 8 P. R. 322.— Cialt. 
 
 II. Duty and Liability on Writs of 
 Execution. 
 
 1. Landlord's Claim for Hent after Seizure under 
 Execution. 
 
 (Joods having been seized by the sheriff under 
 execution, an<l claims liaving been made thereto 
 by third persons, namely, chattel mortgagees, 
 an interpleader summons was obtained by the 
 sheriff. Notice was then given to the sheriff by 
 the landlord of rent due, but no distress wi's 
 issued or anything further done on his behalf. 
 An interpleader order was made, and the claim- 
 ants having failed to give the sec irity required 
 thereby, the goods were sold pursuant to the 
 terms of the order, the landlord becoming the 
 purchaser. They were never removed from the 
 demised premises. The claimants were success- 
 ful: — Held, that the statute 8 Anne c. 14, s. 1, 
 only applies to the goods of the execution debtor, 
 and not to those of third persons, against whom 
 there must be a distress, notice to the sheriff not 
 being sufficient; and that the sheriff selling in- 
 curred no liability, as he was secured under the 
 interpleader order: — Held, also, that the sheriff 
 is not liable wlieii the goods have not been re- 
 moved from the demised premises. The proceeds 
 of the sale were therefore ordered to be paid out 
 of court to the claimants. Clarke v. Farrell, 31 
 C. P. 584. 
 
 III. Fees. 
 1. When Office of Sheriff is Vacant. 
 
 The fees earned by a deputy sheriff while the 
 ofRce is vacant by reason of the death, resigna- 
 tion, or removal of the sheriff, of right belong to 
 the deputy himself, and neither the representa- 
 tives of the late nor the newly appointed sheriff 
 have any right or claim thereto. AtcKellar v. 
 Henderson, 27 Chy. 181. 
 
732 
 
 •nn 
 
 siTir. 
 
 734 
 
 KITS or KXK- 
 
 fcHi! nfler Sii- 
 732. 
 
 -iSVe Bau<. 
 
 ft or Lands,— 
 
 Taxi's. ~Sre 
 Taxes. 
 
 Vacant, 732, 
 
 Y Sheriff, 
 
 is plaintiff or 
 lio HO (li'Hires, 
 !(>iinty adjoin- 
 lea. Brannen 
 
 kVlUTS OF 
 
 Seizure under 
 
 5 sheriff under 
 made thereto 
 1 mortgagees, 
 taiiied by tlie 
 tlio sheriff by 
 > distress wi's 
 on his behalf, 
 md tlic chiim- 
 irity required 
 rsuant to the 
 lujcomicg the 
 oved from the 
 were success- 
 ne c. 14, s. 1, 
 cution debtor, 
 ugainst whom 
 the sheriff not 
 riff selling in- 
 red under the 
 liat the sheriff 
 not been re- 
 The proceeds 
 to be paid out 
 V. Farrell, 31 
 
 Vacant. 
 
 sriff while the 
 eath, resigna- 
 ight belong to 
 le representa- 
 ointed sheriff 
 McKdlar v. 
 
 In siu.'li a iNiHu whore foes Inid been received 
 by thi! ilfputy, mid whinh the bill alKt}(ed he liad 
 ill iTi'iir paid over to the oxecutorH of tliu late 
 sheriff, and the deputy Hultni'ijuently voluiitir- 
 ily .'iHsiu'iii'd all Ids i'ii{ht and ulai'ii to such futis 
 to tiie iii'U'ly iippiiiirod .sln'rilf, who IIKmI a bill to 
 compel i'(!p,'iyiiu'iit of the amounts to him, the 
 Court allowed a demurrer for want of equity. //'. 
 
 2. Poiindnije, 
 
 The pouiidai,'e of a shoritf cannot be taken to 
 cover more thin the risk and responsibility cast 
 upoil iiiiii wlitiii lie seizes, retiiiis, and sells goods 
 anil from this levy returns the money. If the 
 sheriff M aeti'iii bo int(!rcepted, so that he does 
 not iiiak(! tliis money, it is for the (.'ourt to say 
 whit allow iiuHt siiall be made him in lii'i of 
 i.MUiidigc. WaiUii^„rth\. Ihll, 8 P. U. 478.— 
 Blake. 
 
 Helil, Wilson, V. J., dissenting, that a sheriff 
 hiis no riiflit to poundiigo upon an execution 
 ayiiiist I iii'ls, unless there has lieen an actual 
 sale. Till' Mcrvliniits Hank v. Camj>li<:l!, 32 (J. 
 1'. 170. 
 
 Held, that the usual mode of computing sheriff s 
 poundage! is correet, namely, to allow six per 
 cent, on the lirst .?l,000, and in addition tliereto 
 thi'eo per cent, on the amount over .§1,000, and 
 under .^l.OOO ; and in addition thereto one and a 
 half per cent, on the amount over !?!, 000. F/im- 
 iii'j V. //'(//, I'. II. 310. — Dftlton, Ma^te,: — 
 
 Per Cameron, J. That tho item of $f\ for tak- 
 ing stock was impro]ierly allowed, not being in- 
 curred in the (!are and removal of tho property, 
 witbiit the tariff Jh. 
 
 Cameron. 
 
 See MorrUim v. 
 infra. 
 
 Taylor et al., 9 P. R. 390, 
 
 3. Taxation of. 
 
 Where a sheriff's fees have been taxed before 
 a deputy dork of tho (Jrown umler H. S. (). o. 
 6(i, s. 4S, a revision of siicii tixatiou cannot tike 
 plan ! before tlio |)rinci|)il Clerk of the Crown, 
 nut tho court in ly refer tho bill back to the same 
 deputy clerk for a rcvisicm of the taxation, v/liero 
 it appears tint items hive been improperly al- 
 lowed. Jfny V. Draki; 8 P. R. 120.— Osier. 
 
 Held, that a sheriff's bill of fees may bo taxed 
 on notice under .sec. 48 of tho Execution Act, R. 
 S. 0. c. (ifi, either at Toronto or in the sheriff's 
 own county, as the party taxing may elect. 
 Dominion Tiijiu FoMidiuif Co., v. ^'agle, 8 P. R. 
 174. — Armour. 
 
 An execution and the judgment under which 
 it issued were set aside on the ground of irregu- 
 larity in obtaining the judgment: — Held, that 
 the plaintiff was notentitlod to have the sheriff's 
 bill against him taxed under R. S. 0. c. fi6, s.48, 
 as the setting aside of the execution was not r. 
 "settlement by payment, levy, or otherwise," 
 within the meaning of the Act, or under sec. 47, 
 as the plaintiff was not a " person liable on any 
 execution:" — Hehl, however, that a sheriff, as 
 ail officer of the court claiming fees by virtue of 
 its process, is so far within its jurisdiction that 
 his bill may be taxed under Rule 447, O. J. Act : 
 —Held, also, that this case, under the facts stated 
 in the report, came within the provisions of R. 
 S. 0. c. 6(5, 8. 45, and. that therefore the sheriff 
 was entitled to poundage. Morrison v. Taylor 
 et al., 9 P. R. 390.— Cameron. 
 
 1. 
 
 II. 
 III. 
 IV. 
 
 V. 
 
 VI. 
 
 VII. 
 
 VIII. 
 
 IX. 
 
 X. 
 
 SHIP. 
 
 Ai'iM.ic'.vnos OK iMi'KHiAr. Statu rua, 734. 
 
 Ow.VEIW AND MoilTOAdKBS, 731, 
 LlABrMTV AS CAKKlKf'S 73tJ. 
 
 Master, 730. 
 
 Bir.L.s OF liArnvd —W Hir.r.s of Lad- 
 iN(i AND Wakehou;;e Ukokuth. 
 
 Collision, 73(5. 
 
 Oknkkal Avkraok, 737. 
 
 a.sskssmknt of sliips, 737. 
 
 Mlscellaneods Cahkh, 737. 
 
 Marine Inscrance— -6'ee Insurance. 
 
 I. AriLiOATioN OF Imperial Statutes. 
 
 The defendant as administratrix of her hus- 
 band, who lost his life by tho foundering of a 
 steamer called the Waiibuno, belonging to the 
 plaintiffs, on which he was a passenger, sued the 
 plaintiffs to recover damages under H. S. O. 
 c. 128. The plaintilf><, who eliiined limited 
 liability under sec. 54 of 25 k 2i) Vict, c, (53, 
 (Imp.) filed a bill under tho Merchiint Sliip[iing 
 Act 18,Vt, 17 k 18 Vict. c. 101. s. 514, (Imp.) 
 to rostr.iin tho actiim. and pr lyed that it mi^^ht 
 be determined by the court whether they were 
 liable for loss of life or merch uidise, and, if so, 
 for what amount, and tho nerscuis entitled there- 
 to:— Held, reversing the decree of -Sprag^e, C, 
 27 Chy. 34(5, that the Waubuno, not hiving been 
 registered under 17-18 Vict. c. 101 (Imii.) was 
 not a British ship within tho mcming of that 
 Act, by virtue of tho Statuta of Canada 3(5 Vict, 
 c. 128, and therefore not entitled to t:ike ad- 
 vant ige of tho limitation clause ; and th it even 
 if she were, tho plaintiffs were not entitled to ,an 
 injunction, as they did not admit their lial)i)ity 
 for damages to the extent mentioriod in the Act, 
 and bring into court or offer to secure the amount. 
 The. Omrifian Bai/ Transportation Co. v. Fisher, 
 5 A. R. 383. 
 
 II. Owners and Mortoaoees. 
 
 Where certain persons, inclu ling G., advance I 
 money to complete building a yacht at Cobourg, 
 in order to sail for prizes at New York and Pliila- 
 delphia, and scrip under seal was executed de- 
 claring that (i. was to hold tho yacht in trust as 
 security for the advances ; and G. incurred cer- 
 tain running expenses in t:iking the yacht to the 
 race : — Held, that G. was entitled to a first 
 charge on tho proceeds of the sale of the yacht, 
 for these expenses, as they had been incurred in 
 prosecuting the enterprise for which the trust 
 was created. Barn v. Oifford et al. , 8 P. R. 44. — 
 Taylor, Master. — Proudfoot. 
 
 Plaintiff was mortgagee of 64 shares in a vea- 
 ael belonging to defendant, and on the defend- 
 ant's insolvency was allowed by the creditors and 
 
735 
 
 SHIP. 
 
 736 
 
 C ..'. 
 
 11', 
 
 tlio assigiiei^ to take her as she stood at a valua- 
 tion. 1 I'lciidaiit hiul iireviously removed from 
 the vessel a ]iiiiii(i ami seveial otlier articles, and 
 had i-iilistitiitKl sto\LS for s-teaiii heateis : — Held, 
 that in the al.fcuiee of fraud, the )jlaintitl was 
 coiKliuhd liy the btttlement witli the assignee 
 liy whi<h he t(.<ik the vessel aa she then stood, 
 and eould iiot recover thiae ai tides ; and that 
 the mortgagor, heiiig in jiossession, was entitled 
 to nwiii.ige Uie vessel as he thought best, and tu 
 remove b'.ieh articles upon his substituting otlicis 
 fortluni ;— Semble, that a piano on board of a 
 vessel would not pass to a mortgagee under the 
 woids " with her ijoats, guns, ianmunitiou, small 
 arms, and ii|ipurtenance8." >St. John v. llulli- 
 runt, 45 Q. B. G14. 
 
 Pemble, a njortgagee of a vessel until he takes 
 possession 01- does something eijuivalent there- 
 to, is not entitled to an aec(iunt of the money 
 earned I'y the vtsscl tor freight, &c. ; but, where 
 in a suit by the moitgagees of a part owner of a 
 vessel the defendant, the owner of the other 
 shares, admitted that he was sailing the vessel 
 for the joint beneht of hiuiself and the other 
 owners— other than the plaintitls, though pre- 
 vious to the institution ot the suit he had only 
 asked tor evidence that the agent of the plain- 
 titls really held the shaies tor them :— lleld, 
 that the lair inference was, that the defendant 
 was sailing for whomsoever might be the owners 
 or entitltd to the earnings ; and that having had 
 suflicieiit inlormation to actjuaint him with the 
 fact that the plaintitls had ac(iuired the shares 
 either as mortgagees or owners he had thus re- 
 cognized tluir 1 ight to demand an aecouut. JJi-r- 
 chidilK' Bank- v. 0'rafi(im, '2.1 Chy. C24. 
 
 Qua;re, whether co-owners of a vessel have a 
 right to thaie in the prolits thereof earned in 
 ventures to which they do not assent, as a ma- 
 jority of the owners can em]iloy the vessel 
 against the will of the nanority, who, however, 
 can compel the majority to give a bond to restore 
 the vessel in safety or p.aj the value of their 
 shares. In sucii case the minority do not share 
 the hazard, neither are they entitled to the 
 benefit of the voyage. lb. 
 
 One C. entered into atireeinents with several 
 parties to carry freights for them at certain 
 named jiriccs to be paid to the defendant— not 
 mentioning any particular ves.'sels in which the 
 same "ere to be carried — and then agreed w ith 
 the defendant, as part owner and ii;aster of vessels 
 in which the plaintifl's had an interest, at rates 
 considerably below the sums agreed upon. The 
 defendant and C. both swore that the arrange- 
 ment had not been made by t". as agent of the 
 defendant, but for his own benelit : — Held, that 
 the fact of the defendant having rendered an ac- 
 count in his own name and also sued for a portion 
 of the fieight, though aided by the other circnnr- 
 stances mentioned in the judgment, was not suffi- 
 cient to countervail the positive denials of the de- 
 fendant and C. , that the contracts Lad not been 
 made in behalf of and as age-.it for the defendant, 
 frcii;ht being primfi facie paj able to the master 
 (if a vessel, and the cargo need not be delivered 
 by him until the freight thereof is paid ; although 
 in any other transaction such conduct would have 
 been strong evidence that the defendant was the 
 principal contractor, lb. 
 
 The plaintitls who were mortgagees of a vessel, 
 in exercise of a power of sale contained in their 
 
 security, on default of payment sohl the interest 
 of their debtor b}' auction, when the s:iine was 
 bdught by one who held it in tiust tor the mort- 
 gageis : — lleld, that the eflect of such sale and 
 purchase was, that the plaintitls reuiaiued mort- 
 gagees only of the interest so sold. lb. 
 
 fill. Liability Aa Caeriehs. 
 
 Liability of ship owner for assault and ini- 
 prisunnient of passenj.er by puiscr. l^'ee Emer- 
 KVH V. 'Ihe ykuiaru J\afiijutw)i Co., 2 V. Ji. 528, 
 p. 450. 
 
 Conveying travellers on Sunday. See Ei'y'mn 
 V. LmjijtU; Jieyiiia v. I'ortkr, 1 (>. W. 537, p. 744. 
 
 For non-performance of charter party. See 
 McLxnm v. McLtod, 4(1 Q. B. i;35; y A. K. 239, 
 p. 102. 
 
 IV. Master. 
 
 Action for work and services. — Employment 
 of ni: ster "for the season. ' —Less of vessel. See 
 Ellis V. The Miiilund R W. Co., 7 A. K. 4G4, p. 
 448. 
 
 See Merchunta' Bank v. Grahavi, 27 Chy. 524, 
 p. 735. 
 
 VI. Collision. 
 
 On the 27th April, 1880, at port K. on lake 
 
 Erie, where vessels go to load tindier, staves, 
 
 I &c., and where the Erie Belle, the resj (indent's 
 
 I Vessel, was in the habit of andiiig and taking 
 
 Ipasstiigers, the M. C. Upper, the appellant's 
 
 vessel, was nuiored at tne west side of the dock, 
 
 and had her anchor dropped some distance out 
 
 ! in continuation of the direct line of the east end 
 
 of the wharl, thus biinging her cable diiectly 
 
 ' across the end of the wliarl from east to west, 
 
 and w iihout buoying the same or taking some 
 
 ' measure to inform incoming vessels w here it was. 
 
 ! The Erie lielle came into the wharf safely, and 
 
 I in backing out irom the whaif she came in con- 
 
 ! tact w ith the anchor of the M. C Upper, making 
 
 ' a large hole in her bottom. On a jietition filed 
 
 I by the owner of the Erie Belle, in the maritime 
 
 court of Ontario to recover damages done to hia 
 
 vessel by the schooi'er M. C. Upper, the judge 
 
 who tried the case found, on the evidence, il.at 
 
 both vessels were to blame, and held that each 
 
 shoidd pay one half of the damage sustained by 
 
 the ]>ie helle. On appeal by owner of the M.C. 
 
 Upper and cr(jsB ajipeal by ow ner of the Erie Belle 
 
 to the Supreme Court of Canada: — lleld, per 
 
 Ritchie, C.J. , and Fournier and Taschereau, JJ., 
 
 that as the Erie Belle, being managed with care 
 
 and skill, went to the wharf in the usual way, 
 
 and came out in the usual waj', and as the M. C. 
 
 Ujiper had w rongfully and negligently placed her 
 
 anchor (as much a part of the vessel as her masts) 
 
 where it ought not to have been, and without 
 
 I indicating, by a buoy or otherwise, its position 
 
 to the Eiie Belle, the owner ot the Erie Belle 
 
 was entitled to full compensation, and the M. C. 
 
 Upper should pay the whole of the damage. Per 
 
 Strong, Henry and Gwynne, .JJ., that tlie M. <'. 
 
 Upper had a right to have her anchor where it 
 
 Was, and that it was not in tiie line by w liich the 
 
 Erie Belle entered and by which she couhl have 
 
 bucked out; that the strain on the anchor chain, 
 
736 
 
 lid the interest 
 tlio s:imo was 
 t l<jr the ijioi't- 
 sticli Bale and 
 euiiiiueil niort- 
 
 IEU^s. 
 
 s.Milt and ini- 
 r. See Eiiie.r- 
 >., 2 O. J!. 528, 
 
 . .See iiVf/inn 
 l\. f)37,ii.744. 
 
 ;r ptiity. See 
 i ; y A. Li. 239, 
 
 -Kmploj-ment 
 
 of \ cshcl. See 
 
 A. K. 4G4, p. 
 
 /, 27 Chy. 524, 
 
 ivt K. on lake 
 ;iniliiT, staves, 
 reHj (indent's 
 iig and tiiking 
 he appellant's 
 de of tlie diiek, 
 le distance out 
 of the eabt end 
 Ci.ljlu diiectly 
 I) east to west, 
 jr taking some 
 Is w here it was. 
 alf ^afely, and 
 le came in con- 
 Upper, making 
 a petition filed 
 n the maritime 
 gcs done to his 
 ipei', the judge 
 evidence. '..I.at 
 lield that each 
 ;e sustained hy 
 uerof the M.C. 
 f the Ki ie Belle 
 la: — IK hi, per 
 aschereuu, J J., 
 nged with care 
 the u.'^ual way, 
 id as the M. C. 
 ntly placed her 
 ul as her masts) 
 1, and without 
 se, its position 
 the Erie lielle 
 and the M. (.'. 
 i damage. Per 
 that the M. <'. 
 ichor w here it 
 e liy which the 
 ihe eouM have 
 I anchor chain. 
 
 737 
 
 SPECIFIC PERFORMANCE. 
 
 738 
 
 
 when the crew of the M. C. Upper were hauling 
 ou it all the time the Erie Belle was at K., suth- 
 cientlj' ••' Heated the position of the anchor, and 
 therefore that the accident happened through no 
 fault or negligence on the part of the M. C. 
 Upper. The court being equally divided, the 
 appeal and cross appeal were dismissed without 
 costs. McCallum v. Odette, 7 S. C. R. 36. 
 
 VII. Genkhal Average. 
 
 Where a vessel was disabled by a gale near a 
 lee shore, so that she could not work off, and 
 after the anchors had dragged until she began to 
 pound on the bottom, the master, with the view 
 not of saviiig the cargo, but of enabling the crew 
 to escape, headed her round to the shore, where 
 she was stranded and abandoned by the crew, 
 and the defendant, the owner of the cargo, after- 
 wards got it out at his own expense : — Held, that 
 the stranding was not voluntary, and that the 
 cargo was iiot liable to general average. Dancey 
 V. Bm-ns, 31 C. P. 31.^. 
 
 VIII. A.S3E3SMENT OF ShIPS. 
 
 K. resided and did business m the city of 
 Halifax, and was owner of ships which were not 
 registered at the city of Halifax, and which had 
 never visited the Port of Halifax. Under the 
 authority of 37 Viet. c. 30, sec. I, and 27 Vict. 
 c. 81, sees. .340, 347, 361, Rev. Stat. N. S., the 
 assessors of the city of Halifax valued the pro- 
 j)erty of K. , and included therein the value of 
 said vessels : — Held, that vessels owned by a 
 resident, but never registered at Halifax, and 
 always sailii;g abroad, did not come within the 
 meaning of the words " wheth such ships or 
 vessels be at home or abroad at the time of as- 
 sessment, " and therefore were not liable to be 
 assessed for city taxes. The City of Hallfiuc v. 
 Kenny, 3 S. C. R. 497. 
 
 IX. Miscellaneous Cases. 
 
 Seizure of sliai e in ship. See Trerice v. Btir- 
 keU, I O. R. 80, p. 655. 
 
 Warranty as to class of ship. See LaRoche v. 
 O'Hagan et al., 1 O. R. 300, p. 780. 
 
 See Weldun v. Vaughan et al., 6 S. C. R. 35, 
 p. 130. 
 
 SHOPS. 
 See Taverns and Shops. 
 
 SHORT FORMS. 
 See Deed. 
 
 SIMILITER. 
 See Pleading. 
 
 SLANDER. 
 See Defamation. 
 
 SOCIETY. 
 See Corporations. 
 
 SOLICITOR. 
 
 See Attorney and Solicitor. 
 
 SPECIAL BAIL. 
 
 SfC B.A'L. 
 
 SPECIAL CA8E. 
 See Parlia.me-niary Elections. 
 
 SPECIAL ENDORSEMENT. 
 ■S't'e Pr.actice. 
 
 SPECIFIC PERFORMANCE. 
 
 I. Contracts for the Sale of, or Relat- 
 INU TO Land 
 
 1. Statute of Frauds, 738. 
 
 2. Where Contract m Conditional, 740. 
 
 3. Compcnwtinn or Abatement of the 
 
 Purrhaai Moneij, 740. 
 
 4. Plfadini/ and Practice. 
 
 (a) Parties; 740. 
 
 (b) Di'murnr, 741. 
 
 (c) CoMs, 741. 
 
 5. Enquiry as to Damages, 741. 
 
 6. Other Cases, 742. 
 
 II. Of Acts of Parliament, 742. 
 
 III. Of Awards, 743. 
 
 IV. Of other Agreements, 743. 
 
 I. Contracts for the Sale of or Relating 
 to Land. 
 
 I. Statute of Frauds, 
 
 Although the 4th section of the Statute of 
 Frauds requires any agreement for the purchase or 
 sale of land to be evidenced by a note or memor- 
 andum thereof to be signed by the piirty sought 
 to be charged, yet where lands were sold by a 
 trading corporation, under a power of sale con- 
 tained in a mortgage, and the purchaser at such 
 sale signed an agieement to purchase, and after- 
 wards filed a hill seeking specific performance 
 with compensation for the loss of crops which 
 were advertised with the land, but actually be- 
 longed to third parties, and the defendants, (the 
 corporation), answered the bill admitting the 
 fact of their being mortgagees, and proceeded 
 with sundry statements such as, " when the 
 plaintiff bid for and was declared the purchaser 
 of the lands * * the sum bid by the plaintiff 
 
 47 
 
39 
 
 SPECIFIC PERFORMANCE. 
 
 740 
 
 
 was a low price * * that the plaintiflf waa 
 not in fact the real purchaser of the lands at the 
 sail! sale * * that the company was not bound 
 to put the plaintiff in possession, but never did 
 any act to prevent her takiny possession, and * 
 ' that possession was taken by the plaintiff," 
 and the answer cl;tinied no benefit from the stat- 
 ute, and did not deny having made the contract ; 
 neither did it raise any ol)jeetiou to tlie want of 
 the corporate seal : — Held, that this suHieiently 
 admitted tlio agreement to sell and no protection 
 of the statute h:ivingbeen claimed, tliat the plain- 
 tiff was entitled to a decree, with compensation 
 for the loss of the crops, witli costs. Clearer v. 
 The North i)f Scollfiiid Canadian Mort<ja<ie Co., 
 •21 Chy. 308. " 1 
 
 The defendant in 1871 wrote to his son who 
 had loft home to work for himself, that if he 
 would return he would f;ive him 50 acres of his [ 
 farm and a share of the cattle and sheep when 
 the plaintill'got married, but if he stayed away 
 he would sicrilice his own and his father's in- 
 terests. Upon receipt of the letter the plaintiff 
 returned and remained on the farm working it 
 with his father, except at certain times when he 
 went away to work for wages for himself. It 
 was proved that the father had pointed out the 
 50 acres wliicii he intended to give his son, anil 
 the son entered and erected a house thereon with 
 his father's approval, anil occupied it with liis 
 family, he h iving m irried in 187!) : — Held, that 
 the plaintiff was entitled to specific performance 
 of this aLtreement. O'arson v. Gamon, 3 O. II., 
 C. P. D.'439. 
 
 A., whose wife owned a certain freehold 
 property on St. George's street, wrote to B., 
 the owner of a certain leasehold property on 
 King street, with reference to tlie saicl proper- 
 ties, as follows, "If you will assume my mort- 
 gage, and piy me in nash, §3,700, L will assume i 
 your mortgage of .'53,000 on the leasehold, and 
 B. replied, " Your offer of this date, for the ex- 
 change of my property on King street for your | 
 property on ,St. (ieorge street, I will accept on ; 
 your terms :" — Held, affirming the judgment of , 
 Ferguson, J., 2 0. R. (i0!>, not a sulKcient memo- i 
 randum of the contract to satisfj' the .Statute of ! 
 Frauds. Armour, J., doubting. Held, also, in | 
 an action for specific performance of the above I 
 contract l)y B., correspondence between the so- 
 licitors of the parties of date subseijuent to the 
 date of the above letter,s, as also the requisitions 
 respecting title which passed between the soli- 
 citors, were inadmissible in evidence. Held, 
 further, the fact that A. 's wife had signed a con- 
 veyance of the land in fpiestion to B. , which con- 
 veyance had never been delivered, and did not, 
 by recital or otherwise, set forth the contract re- 
 lied on, could not assist B. in the action for 
 specific performance. McCliimj v. McCracken 
 et tix., 3 0. It., Q. B. D. 59C. 
 
 The decree of the Court of Chancery, 28 Chy. 
 207, affirmed on appeal with costs. In letters 
 written by the solicitor of a purchaser of land 
 sold at auction it was stated that the advertise- 
 ment of sale had represented that twenty acres 
 of the land purchased from the defendant had 
 been cleared and fenced, whilst the fact was no 
 fencing whatever remained on the premises, and 
 by reason tliereof claimed compensation, and in 
 his answers thereto the defendant did not deny 
 the fact of sale and purchase, but disputed the 
 
 1 right to compensation : — Held, a sufficient ad- 
 I mission of the fact stated to take the case out of 
 the Statute of Frauds, although no contract of 
 sale had been signed by the vendor. StamiHi'rs 
 V. (fDonohoi', 8 A. R. 101. Affirmed by tlie 
 Supreme Court. See 20 C. L. J. 2G0. 
 
 1 See Hallrran v. Moon, 28 Chy. 319, p. 743 ; 
 Carroll v. Williams, I O. R. 150, p. 400'. 
 
 2. Where Contract is Conditional. 
 
 ' See Cameron v. WeUinf/lon, Grey and Bruce B, 
 \ W. Co., 28 Chy. 327, p. 074. 
 
 3. Compensation or Ahatem.ent of the Purchase 
 Mom-ii. 
 
 Although a vendor is allowed great latitude in 
 the statements or exaggerations he may make as 
 to the general rpialities and capabilities of land 
 he is about to offer for sale, still he will not be 
 permitted to make direct misstatements and 
 misrepresentations as to matters of fact wliich 
 would naturally have the effect of inducmg par- 
 ties resident at a distance to bid for the property. 
 Therefore, where an ailvertisement of property 
 about to be sold descril)ed it as being "a farm 
 of 81 J acres, 20 acres cleared and fenced," on 
 the faith of wliich the plaintiff purchased, when 
 in fact there was not any clearing or fencing 
 made upon the premises, the court (Blake, V.C.) 
 in pronouncing a decree for specific performance 
 at the instance of the purchaser, directed a refer- 
 ence to the master to make an allowance in res- 
 pect of the m itters misrepresented, and ordered 
 the vendor to pay the costs of the suit. S/nin- 
 mers v. <>' Dnmlhoi; 28 Chy. 207 ; see .V. C. in 
 appeal, 8 A. R. 161, tapra. 
 
 An owner of real estate who alone enters into 
 an agreement to sell will bo required t > procure 
 a bar of his wife's dower or abate the purchase 
 money in the event of her refusal ; Van N'orinan 
 V. Beaupre, 5 Chy. 599. Luutjhead v. Ultibbs, 27 
 Chy. 387. 
 
 See Cleaver -v. Tlie North of Scotland Canadian 
 Mor/gai/e Co., 27 Chy. 508, p. 739; Carroll v. 
 Williami, 1 O. R. 150, p. 406. 
 
 4. Pleading and Practice. 
 
 (a) Parties. 
 
 When his wife joins with the owner of real 
 estate in the contract of sale, and the purchaser 
 institutes proceedings to compel specific perform- 
 ance thereof, the wife must be joined as a party 
 defendant ; and the fact that the bill alleges that 
 her only interest is that of an inchoate dowress 
 forms no ground for dispensing with her being 
 so joined. Longhead v. Stubbs, 27 Chy. 387. 
 
 Where the owners of the property in an action 
 for the specific performance of a sale of l^nd, 
 were married women, and their husbands > re 
 joined as co-plaintiffs, and the defendant demu.-- 
 red ore tenus, on ground of misjoinder of parties, 
 leave was given to amend by making the hus- 
 bands defendants, or by adding next friends for 
 the m.arried women as co-plaintiffs. Younj tt 
 al. V. Robertson, 2 0. R., Chy. D. 434 
 
740 
 
 sufficient .ad- 
 the case out of 
 no contract of 
 or. Stdiniin'rn 
 rtirraetl by the 
 2(50. 
 
 [ 319, p. 
 p. 40G. 
 
 743; 
 
 '.Itional. 
 
 7j and Bruce R. 
 
 ^ tlie Purchase 
 
 reat latitude in 
 le may maku as 
 .hilities of land 
 lie will not l)o 
 itatements and 
 i of fact wliicli 
 if induc.ng par- 
 or the pro|)erty. 
 3nt of property 
 being " a farm 
 ,nd fenced," on 
 urchased, when 
 ring or fencing 
 rt (Blake, V.C.) 
 fio performance 
 directed a refcr- 
 lowance in res- 
 ed, and ordered 
 lie suit. Sill in- 
 n ; see .S\ C. in 
 
 lone enters into 
 lired t > procure 
 te the purchase 
 1 ; Van Norman 
 'cul V. Stubbs, 27 
 
 otlandCanadhin 
 739 ; Carroll v. 
 
 dice. 
 
 i owner of real 
 d the purchaser 
 specific perform- 
 oined as i\ party 
 ! bill alleges that 
 nchoate dowress 
 with her being 
 27 Chy. 387. 
 
 erty in an action 
 a sale of l«nd, 
 • husbandfl > re 
 lefendant demu.-- 
 oinder of particp, 
 naking the hus- 
 next friends for 
 atiflfs. Younij et 
 D. 434 
 
 741 
 
 SPECIF [C PERFORMANCE. 
 
 742 
 
 See Cameron v. Willinqton, Grey and Bruce 
 E. W. Co., et al. 11 Chy. 95, p. (i-22; In re 
 Treleren and Horner, 28 Chy. 024, p. 77(J ; Car- 
 roll V. Williams, 1 0. R. 150, p. 406 ; Roberts v. 
 Jlall, 1 O. R. 388, p. 743. 
 
 (b) Demurrer. 
 
 Where a demurrer is raised to a statement of 
 ••jlaim for specific performance on the ground of 
 no sufficient agreement, it i:; enougli if in any 
 aspect of the case, the plaintill' may he entitled 
 to some relief. In this ca^e it was held, on the 
 statement of claim set out in the report, that a 
 concluded contract was shewn, and tliat defend- 
 ant was lialde. Misjoinder of })arties is, since 
 tlie Judicature Act, no longer a ground for de- 
 murrer. Youmjetal. v. Robertson, 2 O. R., Chy. 
 D. 434. 
 
 j Casey ?•. Hanlon, 22 Chy. 225, to ascertain the 
 I amount, if any, of tlie defendant's damages. The 
 ] master at Orangeville found defendant entitled 
 j to .^1 1 .05, his costs of investigating the title, but 
 refused to allow him §1000, which was the dif- 
 ference between the contract price an<l the value 
 of tlio land. On appeal, Boyd, C, confirmed the 
 master's report. Oou<jh v. Bench, 9 P. R. 431. 
 
 (c) Costs. 
 
 Whatever may be the rule in England, this 
 court has maintained jurisdiction to make a de- 
 fendant pay costs in a suit for specific perform- 
 ance, though the bill l)e dismissed, if the circum- 
 stances be such as to warrant doing this. Hence, 
 in such a suit, brought by the purchasers of cer- 
 tain lands, against tlii; vendors an<l a subsequent 
 jiurchaser. Where tlie judge of first instance 
 <lismissed the action without costs, but gave the 
 subsequent purchaser his costs against his co- 
 defendants, although no issue was raised between 
 the defendant.'^ : — Held, that he had jurisilictitpii 
 to make the order, in his discretion, and having 
 exercised such discretion, this court would not 
 interfere, McMahoii r. Barnes, Order Book No. 
 9, f(d. 7.30. (not reitnrted,) followed. Church v. 
 Fuller et al., 3 O. R., Chy. U. 417. 
 
 In a suit for specific performance, the defen- 
 dant set up that tlie reason he had refused to 
 complete the agreement was, that he had been 
 induced to enter into it by certain misrepresenta- 
 tions of the plaintitl', but which he entirely failed 
 in jiroving. Although the master reported that 
 a good title was first shewn in his otKce, the de- 
 cree on further directions ordered the costs to be 
 paid by the defendant, notwithstanding that the 
 bill contained certain statements which, it was 
 alleged, were not true, and had not been proved, 
 the court being of opinion that such statements 
 had not any material bearing upon the case, and 
 that a suit would have been necessary without 
 reference to the question of title, l-'latt v. Bliz- 
 -iird, 29 Chy. 46. 
 
 See S/<imin"rs v. O'Dunohoe, 28 Chy. 207, p. 
 740; Rulher/urdv. tSimj, 29 Chy. 511, p. 742. 
 
 5. Emiuiri/ as to Damaijes. 
 
 On a bill filed to rescind a contract for the 
 sale of land, the defendants asked by way of 
 cross relief to have the same specifically i)er- 
 formed. On a re-hearing the divisional court 
 refused specific performance or rescission, but, 
 tin ving regard to the iinding of the judge at the 
 trial, that no actual fraud had been proved 
 against the defendant the purchaser, though it 
 appeared that to a certain extent he had over- 
 reached the plaintifif, an old woman, when mak- 
 ing the contract, they ordered a reference, under 
 
 6. Other Cases. 
 
 In a suit at the instance of a vendor of land 
 for the specific perfonnanee of an agreement to 
 sell, the ilefence raised was, that the land was 
 agreed to lie conveyed free froi-A incumbrances, 
 i)ut the same was subject to tli^ dower of oneM. 
 und to a mortgage, and therefore that a good 
 title could not be shewn. It was satisfactorily 
 shewn that the dower had been sufficiently 
 barred, and the report of the master stated that 
 the price agreed to be paid for the land was 
 §3500; that §1800 was due on the mortgage, and 
 that the purclia.ser had paid only .§100 on account 
 of his purchase, "and that the non-completion 
 of the contract (was) attriltutable to the desire 
 of the purchaser to recede from the ccmtract. " 
 The delendant, down to the In'inging of the de- 
 I cree into the master's oHice, had not demanded 
 any abstract or made any objection to the title: 
 tlie court, on further directions, made a decree 
 ordering defendant to specifically carry out the 
 agreement, and pay to tlie plaintiti the general 
 costs of the cause. Graham el al. v. Sleplwns, 27 
 Chy. 434. 
 
 In a suit for specific performance it was shewn 
 that the plaint! ft" had agreed to convey to the 
 defendants certain lands in consiileration ■ f his 
 being paid onetiiird of the sum for which defen- 
 dants should be enabled to sell the same. This 
 agreement was sub-sequently caneelled on the 
 defendants undertaking to pay plaintiff §2000, 
 one-half by a note, the other half by the convey- 
 ance of certain town lots at an ascertained valu- 
 ation ; and this second or substituted agreement 
 the plaintiff sought to enforce. The defendants 
 set up that in conse(pience of their ascertaining 
 that plaintiff had not a title to the land conveyed 
 j to them, a fresh agreement was entered into to 
 ! the efl'ect that the defendants should be at 
 liberty to sell the land, and pay to plaintiff one- 
 I third of the net proceeds, and which they 
 ■ asserted they had done. At the hearing the 
 court (Spragge, C.,) being satisfied that the de- 
 fendants' account of the transaction was correct, 
 refused the relief claimed, but offered the plain- 
 tiff a reconveyance on payment of costs, which 
 the defendants assented to, or a decree upon the 
 footing of the third or last mentioned agreement 
 upon payment of costs : On rehearing, this de- 
 cree was affirmed with costs. Rutherford v. Sing, 
 29 Chy. 511. , 
 
 A writ of arrest will not be granted against 
 the inirchaser in a suit for specific performance, 
 unless it be shewn by affidavit that the vendor's 
 lien is insufficient. Nelson v. Dafoe, 8 P. E. 332. 
 — Proudfoot. 
 
 II. Or Acts of Parliament. 
 
 See Attorney General v. 
 Co., 6 A. R. 537, p. 343. 
 
 International Bridge 
 
743 
 
 STATUTES. 
 
 74i 
 
 
 
 if 
 
 si 
 
 III. Of Awakds. 
 
 Held, affirming the decree of Proudfoot, V. C. , 
 that the plaiiitiit' was entitled to specific perform- 
 ance of an award giving him damages for his 
 lands taken by the defendants ; tliat the sum 
 awarded was not so excessive as to shew any 
 fraudulent or impi'oper conduct on the part of 
 the arbitrators, and — Qutere, whether if shewn 
 it would be a defence in such a proceeding. A'o/'- 
 vall V. The Canada Southern R. W. Co., 5 A. R. 
 13. 
 
 IV, Of other Agkeements. 
 
 The court will enforce a verbal agreement, 
 although it is to do an act which is not to be 
 performed within a year from the time of making 
 the agreement where the consideration therefor 
 has been executed. Halleran v. Moon, 28 Chy. 
 319. 
 
 When a father enters into a contract'whereby 
 he parts with the custody and control of his 
 child with the bona tide intention of advancing 
 the welfare of the child there is nothing in such 
 a contract illegal or contrary to public policy, 
 and although where such a contract is executory 
 on both sides the court cannot decree specific 
 )>orformance by reason of the want of mutuality, 
 yet where the contract has been faithfully per- 
 formed, so far as the father and child are con- 
 cerned, so that their status has become altered, 
 the court will if possible enforce in specie the 
 performance of the contract by the other party 
 to it. Jiuberts v. Hall, 1 O. R., Chy. 1>. .388. 
 
 When the parents of the phvintifi' agreed witli 
 H. and his wife to give up to them their 
 daughter, the plaintiff, then six years old, to 
 bring up as their own, and make her sole heiress 
 of their property at their deatli, and when it 
 appeared that the agreement was bona Hde in- 
 tended by the father for tlie ultimate benefit of 
 the plaintifif, and that the plaintiff had remained 
 with H. and his wife for twenty years, rendering 
 them efficient service, and it appeared H. in- 
 tended her to have his property, and regarded 
 the agreement as binding, so that he considered 
 it unnecessary to make a will : — Held (reversing 
 the judgment of Ferguson, J. ), that the agree- 
 ment could be enforced against H. 's representa- 
 tive, and that it must be decreed accordingly : — 
 Held, also (athrming the judgment of Ferguson, 
 J. ), that iuasnmch as if the parents of the plain- 
 tiff had brought a suit upon the agreement in 
 this case and recovered they would be trustees 
 for the proceeds for her, the plaintiff might main- 
 tain the suit in her own name. lb. 
 
 Held, that the votes of registered bondholders 
 of a railway having been rejected, the arrange- 
 ment made in this case, though confirmed by two- 
 thirds of the actual shareliolders present, or re- 
 presented, was nevertheless not properly con- 
 firmed within the meaning of the statute, and an 
 action to compel specific performance of theagree- 
 ment was dismissed. IJeiidrie v. The Grand 
 Trunk R. W. of Canada -The Grand Trunk R. 
 W. Co. of Cuncula v. The Toronto Gr^ii, and 
 Bruce R. 11'., 2 O. R., Chy. D. 441. This case 
 has been carried to appeal. 
 
 See Cameron v. Wellington, Grey and Bruce 
 R. W. Co. et at., 28 Chy. 327, p. 674 ; Calvert v. 
 Uurnham, 6 A. R. (520, p. 722. 
 
 SPEEDING CAUSE. 
 See Practice. 
 
 SPIRITUOUS LIQUORS. 
 
 Set C.\XADA Temperance Act, 1S78- 
 AXi) Shops. 
 
 -Tavern."? 
 
 SQUARE, 
 ^ee Dedication. 
 
 STAKEHOLDER. 
 See Hutton v. Federal Bank; 9 P. R. 5C8, p. 
 
 69. 
 
 STAMPS. 
 
 I. On Bills or isoTES—See Bills of Ex- 
 change AND Promissory Notes. 
 
 II. Law Stamps— .S'ee Law Stamps. 
 
 STATEMENT OF CLABI. 
 See Pleading. 
 
 STATEMENT OF DEFENCE. 
 
 See Pleading. 
 
 STATUTE LABOUR. 
 
 See Assessment and Taxes. 
 
 STATUTES. 
 I. Consteuction, 744. 
 II. Prospective and Retrospective, 745. 
 
 III. Repeal, 745. 
 
 IV. Imperial Enactments — See Constitu- 
 
 tional Law. 
 
 V. British Nor-' America Act, 1867 — 
 iS'ee Constitutional Law. 
 
 VI. Statute of Frauds — See Frauds 
 (Statute of.) 
 
 VII. Of Limitations — See Limitation of 
 Actions and Suits. 
 
 VIII. Of Mortmain— .See Will. 
 
 IX. Particular Words— (See Words and 
 Terms. 
 
 I. Construction. 
 
 In penal statutes questions of doubt are to be 
 construed favourably to tlie accused. North 
 Ontario, Election (Ont.) — McCatikill v. Paxton, 1 
 H. E. C. 304. 
 
744 
 
 RS. 
 
 S78— Taverns 
 
 P. R. 5G8, p. 
 
 Bills of Ex- 
 lOKY Notes. 
 
 rAMPS. 
 
 \.ni. 
 
 ENCE. 
 
 R. 
 
 A.XES. 
 
 IPECTIVE, 745. 
 
 ■See CoNSTiTU- 
 
 A Act, 1867— 
 Law. 
 
 - See Frauds 
 Limitation of 
 
 e Words and 
 
 :loubfc are to be 
 cused. North 
 ill V. Paxton, 1 
 
 745 
 
 SUPREME COURT. 
 
 746 
 
 Held, following Eastern Counties, &c., R. W. 
 Co. V. Marriage, 9 H. L. Ca. 32 ; Lang v. Kerr, L. 
 E. 3 App. Cas. 529; and Van Norman v. Grant, 
 27 Chy. 498, that botli ss. 10 and 11 of R. S. O. 
 c. 49, are to be governed by the heading imme- 
 diately preceding sec. 10 ; so that where the 
 interest sought to be reached by the creditor has 
 not been concealed by a fraudulent conveyance, 
 the Judge has no authority to give summary re- 
 lief under sec. 11. Wood v. Hurl, 28 Chy. 146. 
 
 Remarks as to embracing in one Act several 
 subjects which are not expressed in the title ; 
 and as to the efi'eot of the title and preamble of 
 a statute as g\iides to the construction. Jiegina 
 V. Wa«Iimjto», 46 Q. B. 221. 
 
 II. Prospective and Retrospective. 
 
 Prospective. See Martindale v. iJlcirhson, 6 
 A. R. 1, p. 228. 
 
 Retrospective. See Cooper v. Kirhpatrkk, 8 
 P. R. 248, p. 56 ; Ferijii.ion y. EwjlUh and 
 Scottish I)m'i>tment Co., 8 P. R. 404, p. 475 ; 
 Sanders v. Mahhurg, 1 O. R. 178, p. 776. 
 
 III. Repeal. 
 
 Sec. 217 of 29-30 Vict. c. 51 has not been re- 
 pealed thou<j;h marked effete in the schedule pre- 
 fixed to and not re-enacted in 36 Vict. c. 48 O. 
 Scottish American Investment Co. v. Corporation 
 o/Elora, 6 A. R. 628. 
 
 Efifect of repeal of Stamp Act. See Caughill 
 v. Clarke, 9 P. R. 471, p. 74. 
 
 See Brock v. The Corporation of the City of 
 Toronto, 45 Q. B. 53, p. 490. 
 
 See Bankruptcy and Insolvency II., 3, p. 56. 
 
 STATUTORY CONDITIONS. 
 See Insurance, 
 
 STAYING PROCEEDINGS. 
 See Practice. 
 
 STOCK AND STOCKHOLDERS. 
 
 See Corpora ncss.— Railways and Railway 
 Companies. 
 
 STOLEN GOODS. 
 See Criminal Law. 
 
 STREAMS. 
 £ee AVater and Water Courses. 
 
 STREET. 
 See Way. 
 
 SUMMARY PROCEEDINGS. 
 
 I. Before Magistrates. — See Jrs'ncES of 
 the Peace. 
 
 II. Summary Trial Before County Judge. 
 — See Criminal Law. 
 
 SUNDAY. 
 
 The Imp. Act 21 Geo. III. c. 49, prohibiting 
 amusements and entertainments on the Lord's 
 Day, is in force in Ontario, and an application to 
 quash a conviction thereunder for keeping a 
 disorderly house known as the "Royal Opera 
 House, "opened and used for public entertainment 
 and amusement on the Lord's Day, was therefore 
 refused. Begina v. Barnes, 45 Q. B. 276. 
 
 The defendants, owner and c.iptain respect- 
 ively of a steamboat, advertised that they would 
 carry excursionists on Sundays. A number of 
 passengers left Buffalo, in the State of New York, 
 on V. Sunday morning, and proceeded by rail to 
 Niagara, whence they were carried by the defen- 
 dants' steamboat to Toronto and back the same 
 day. The defendants having been convicted 
 therefor for an offence under R. S. O. c. 189 :— 
 Held, that the passengers were "travellers" 
 within the meaning of the exception in sec. 1 of 
 the Act : that there is no distinction in such a 
 case between travellers for pleasure and for 
 business; and that the convictions were there- 
 fore bad. Hciiina v. Daggett, Begina v. Fortkr, 
 1 O. II., Q. B.' D. 5.37. 
 
 Held, that R. S. 0. c. 189, which forbids the 
 profanation of the Lord's Day by persons carry- 
 ing on their ordinary business, does not apply to 
 persons in the public service of Her Majesty, 
 and therefore a conviction of a government lock- 
 tender on the Welland canal, for locking a vessel 
 through the canal on Sunday, in obedience to 
 the orders of his superior, was quashed. Be- 
 gina V. Berriman, 2 O. R., Q. B. D. 282. 
 
 In computing time. 
 7 A. R, 490, p. 759. 
 
 See McLean v. Pitikerto,', 
 
 SUPPLEMENTAL ANSWER. 
 
 See Pleading. 
 
 SUPREME COURT. 
 
 Appeals to. 
 
 1. When Appeal will lie, 747. 
 
 2. Leave to Appeal, 749. 
 
 3. Bond and Security, 749. 
 
 4. Setting down Cause, 749. 
 6. Cross Appeals, 750. 
 
 6. Amendment of Pleadings, 750. 
 
(47 
 
 SUPREME COURT. 
 
 748 
 
 7. Jiiylit til tfih' f/roniKlx of Ai)peal not 
 
 taken hilow—Si-e Coukt of Ap- 
 peal, I. G, p. 17(>. 
 
 8. Contn, 751. 
 
 9. Mha-Uaneous Caxes Rdat'iwj to Ap- 
 
 jicul — .S'c(; Ari'EAU 
 
 
 1^ 
 
 I. Appeals to. 
 
 1. U7(('H Appeal will Lk. 
 
 I'er Strong ami Taschureau, JJ., that an appeal 
 does not lie from the Court of Keview (P.Q.) to 
 the Supreme Court of Canaihi, (Henry, J. contra). 
 Macdonakl v. Ahhott, 3 S. C. K. '278. 
 
 Held tliat tlio order appealed from in this case 
 Iteing a decision on an ap])lication hy a third 
 party to the court was ajjpealahle under the 1 1th 
 sec. of 38 Vict. c. 11 (Fotirnier, J., dissenting 
 and Tascherear., J., doubting) Wilkins v. 
 (,V(/./w, 3 S. C. 11. 203. 
 
 Held, that the appeal in cases of m:indamu8, 
 under sec. '23 of the Supreme and P^xchequer 
 Coui't Act, is restricted hy the application of 
 sec. 1 1 to deeision.s of "the highest court of finiil 
 i-esort" in the province ; and tliat an aj)peal will 
 not lie from any court in the provnice of Quebec 
 but the Court of (Queen's Bench. (Fournier and 
 Heni-y, JJ., dissenting). Dunjou v. Marquh, 3 
 S. O. 11. '251. 
 
 Held that an appeal from the Supreme Court 
 of Kova Scotia, ordering rank and precedence at 
 the bar to one E. would lie to the Supreme Court 
 of Canada (Fouruic, J., «lissenting). Linvir tt 
 al, V. liilclde, 3 S. C. 1{. 575. 
 
 Held, on a motion to quash, that an appeal 
 will not lie to the Supreme Cov.kt of Canada in 
 cases in which the court of original jurisdiction 
 is not a superior court, and that the Court of 
 Wills and Probate for the county of Lunenourg, 
 Nova Scotia is not a superior court within the 
 meaning of the 17th sec. of the Supreme and 
 Exchequer Court Act. Beamish et al. v. Kaul- 
 back, 3 S. C. K. 704. 
 
 In an action instituted in the Superior Court of 
 the Province ot Quibec by the aj pellant against 
 l<i. A. C. and nine other defendants, the rispon- 
 
 > .its, three of the defendants, severally dtmur- 
 ! e<^ lo the appellant's action , except as regarded 
 
 • . ■ lots of land, in which they acknowledged the 
 , : i icllant had an undivided share. The Superior 
 Cdiirt sustained the demurrer, and, on appeal, 
 the C'ouit of Queen's Bench for Lower Canada 
 (appeal side) aiiirmed the judgment. lheapi;el- 
 lant thereupon appealed to the Supreme Court, 
 and respondents niovcdto quash the appeal on the 
 ground that the Supreme Court had no juiisdic- 
 tion : — Held, that as the judgment of the Court of 
 Queen's Bench (the Liglust court of last resort 
 having jurisdiction in the Province) finally deter- 
 mined and put an end to the a]jpeal, which was 
 a judicial proceeding within the meaning of sec. 
 9 of the Supreme Court Amendment Act of 1879, 
 such judgment was one from which an appeal 
 would lie to the Supreme Court of Canada ; and 
 though an appeal cannot be tr.ken from a court 
 of first instance <lirectly to the Suprtme Court 
 until thei'e is a final judgment, yet, whenever a 
 Provincial Court of Ajipeal has jurisdiction, this 
 court can entertain an appeal from its judgment 
 
 finally disposing of the ,appeal, the case l)cing in 
 other respects a proper subject of appeal. Cher- 
 ulierv. CitvilUer vt al,, 4 S. C. R. 005. 
 
 Held, where a disputed fact, involving nautical 
 questions, is raised by an appeal from the judg- 
 ment of the Maritime Court of Ontario, as in 
 the case of a collision, the Supreme C'ouit will 
 not reverse the decree of the judge of the court 
 below, merely upon a l)alaiice of testimony, 
 " The Pictoii"—McCiiaiii v. A'eWi, 4S. C. 1!. 648. 
 
 The original petition in this case came before 
 Mr. Justice McCord for trial, and was tried by 
 him on the merits, subject to an objection to his 
 jurisdiction. The learned judge liaving taken 
 the case en diilibiSre, arrived at the conclusion 
 that he had no jurisdiction, declared the objec- 
 tion to his jurisdiction well founded, and "in 
 coiiS('(pience the oljjection was maintained, and 
 the petition of the petitioner was rejected and 
 dismissed." This juilgiueiit was appealed from, 
 and the now respondent, under .sec. 48 of the 
 Supreme C!ourt Act, limited his appeal to the 
 question of jurisdiction, and the Supreme Court 
 held that Mr. Justice McCord had jurisdiction, 
 and it was ordered thrt the record be transmitted 
 to the proper officer of the lower court, to have 
 the said cause proceeded with according to law. 
 Tiie record was accordingly sent to the protlio- 
 uotary of the Superior Court at Montmagiiy. 
 Mr. Justice McCord, after having otiered the 
 counsel of each of the parties a re-hearing of the 
 case, proceeded to render his judgment on the 
 m, ts and declared the election void. The re- 
 spondent then appealed to the Supreme Court, 
 and contended that Mr. Justice McCord had no 
 jurisdiction to proceed with the case: — llelil, 
 that the Supreme Court on the first ap]ieal could 
 not, even if the iippeal had not been limited to 
 the (juestion of jurisdiction , have given a decision 
 on the merits, and that the order of this court 
 remitting the record to the pro))er officer of the 
 court below to be proceeded with acconling to 
 law, gave jurisdic;tion to Mr. Justice McCord to 
 proceed with the case on the merits, and to pro- 
 nounce a judgment on such merits, M'hich latter 
 judgment was properly appealable under sec. 48 
 of the Supreme Court Act (Fournier and Henry, 
 JJ., dissenting). BelU'chantie Etectioii (Dom.) — 
 Lai'ue v. JJisluuriers, 5 S. C. 11. 31. 
 
 L., appellant, sued R., the respondent, before 
 the Superior Court at Arthabaska, in an action 
 ot damages (laid at )?;10,0C0) for slander. The 
 judgment of the Superior Court awarded to the 
 appelliint a sum of $1,000 for special and \indic- 
 tive diiniaycs. R. appealed to the Court of 
 Queen's Ben.h (appeal side), and L., the presi nt 
 appellant, <iid not ask, by way of cross appeal, 
 for an increase of damages, but contended that 
 the judgment for §1,000 should be eontirmcd. 
 The Court of Queen's Bench partly concurred in 
 the judgment of the Superior Court, but ditl'ered 
 as to the amount, because L. had not proved 
 special damages, and the amount awarded was 
 reduced to §500, and costs of appeal were given 
 against the present appellant. L. thereupon ap- 
 pealed to the Supreme Court : — Held, Tascliereau, 
 J., dissenting, that L., the plaintifi', although 
 respondent in the court below, and not set king 
 in that court by way of cioss appeal an increase 
 of damages beyond the $1,000, was eutitied to 
 appeal, for in determining the amount of the 
 matter in controversy between the parties, the 
 
748 
 
 749 
 
 SUPREME COURT. 
 
 7-.O 
 
 V case being in 
 upijeal. C'/tir- 
 iOo. 
 
 olving iianticiil 
 from tlie jiulg- 
 Ontario, as in 
 me Court will 
 ;e of the court 
 
 of testimony. 
 
 4S. C.];. C4's. 
 
 se came before 
 
 1 was tried by 
 
 bjectiou to his 
 
 liaving taken 
 
 the conclusion 
 
 ed the objec- 
 
 nded, and "in 
 
 liiitaiued, and 
 
 a rejected and 
 
 appealeil from, 
 
 sec. 48 of the 
 
 appeal to tiie 
 
 Supreme Court 
 
 id jurisdiction, 
 
 be transmitted 
 
 court, to have 
 
 eording to law. 
 
 to the protlio- 
 
 t Montmagny. 
 
 iig oli'ered the 
 
 •hearing of the 
 
 ilgment on the 
 
 void. 'I'he re- 
 
 iupreme Court, 
 
 IcCord had no 
 
 u case:— Held, 
 
 rst appeal could 
 
 jcen limited to 
 
 given a decision 
 
 er of this court 
 
 ir otlicer of the 
 
 rh aeeortling to 
 
 tice McCord to 
 
 its, and to pnj- 
 
 s, M-hich latter 
 
 J under see. 48 
 
 lier and Henry, 
 
 clioi! [JJotii.) — 
 
 I. 
 
 londent, before 
 :a, in an action 
 
 slander. The 
 awarded to the 
 jial and \ indie- 
 
 the Court of 
 L., the presmt 
 f cross appeal, 
 ;ontendeii that 
 
 be eonfiruicd. 
 ly concurred in 
 irt, but ditiered 
 ad not proved 
 t awarded was 
 )eal wei'e given 
 
 thereupon ap- 
 Id, Taacliereau, 
 ntifl', although 
 id not seeking 
 cal an increase 
 I'as eutitied to 
 nniount of the 
 he parties, the 
 
 j»roi»er conrse was to look at the amount for 
 Mhich the declaration concluded, and not at the 
 amount of the judgment. Joyce v. Hart, 1 8. 
 C. U. 321, reviewed and approved. Levi \. lined, 
 « S. C. K. 482. 
 
 See The ConiKctkiit Mutiuil Life Ins. Cu. of 
 Jlurtford v. Moore, (i App. Cas. 044, p. 505. 
 
 2. Leave to Appeal. 
 
 1 he Chief Justice of the Supreme Court, under 
 sec. 6. of the Supreme Court Amendment Act of 
 1879, allowed an appeal direct to the Supreme 
 Court of Canada, it being known that there were 
 then only two judges on the bench in Manitoba, 
 the plaintiti' (Chief Justice), and Dubuc, J., from 
 whose decree the appeal was brought. Schitltz 
 V. Wood, G S. C. K. 585. 
 
 See also A'eilly. Travdkrn'' Ins. Co., 9 A. R. 
 
 54. 
 
 3. Bond and Security. 
 
 The delay being the act of the court, the time 
 for filing the bond must count from the grantin^' 
 of leave to appeal, as no delay took place mi 
 applying for such leave. McL'rae v. White, 9 P. 
 11. 288.— Patterson. 
 
 The following certificate was filed with the 
 printed ease, as complying with Rule 6 of the 
 Supreme Court Rules : " \Ve, tlie undersigned, 
 joint prothouotary for the Sui)erior Court of 
 Lower Canada, now the Province of Quebec, do 
 hereby certify that the said defendant has de- 
 posited in our office, on the twentieth day of 
 November last, the sum of five iiundred dollars, 
 as security in appeal in this case, before the 
 Supreme Court, according to section (31) thirty- 
 first of the Supreme Court Act, passed in the 
 thirty-eighth year of Her Majesty, chapter 
 second. Montreal, 17th January, 1878. Signed, 
 Hubert, Honey & Gendrou, P. S. C." Held, on 
 motion to quash appeal, that the deposit of the 
 sum of $500, in the hands of the prothouotary of 
 the court below, made by appellant, without a 
 certificate that it was made to the satisfaction of 
 the court appealed fiom, or any of its judges, 
 was nugatory and inefl'ectual as security for the 
 costs of the appeal. Per Taschereau, J., the 
 (Mse should be sent back to the court below in 
 order that a proper certificate might be obtained. 
 Maedonuld v. Abbott, 3 S. C. R. 278. 
 
 See The Citizenn' Ins. Co. v. Parsons et al., 32 
 C. P. 492, p. 175. 
 
 4. Setting down Cause. 
 
 On a motion to quash the appeal on behalf of 
 the respondent, on the ground that the appellant 
 had not, within three days after the Registrar 
 of the court had set down the matter of the peti- 
 tion for hearing, given notice in writing to the 
 respondent, or his attorney or agent, of such 
 setting down, nor applied to and obtained from 
 the judge who tried the petition further time for 
 giving such notice, as reciuired by the 48th sec- 
 tion of the Supreme and Exchequer Court Acts: — 
 Held, that this provision in the statute was im- 
 perative ; that the giving of such notice was a 
 uonditiou precedent to the exercise of any juris- 
 
 diction by the Supreme Court to hear the appeal ; 
 that the appellant having failed to comply with 
 the statute, the c(mrt could not grant relief 
 under Rules 5(5 or (iO ; and that, therefore, the 
 a])peal could not bo then heard, l)ut must be 
 struck oti' the list of appeals, witii costs of the 
 moti(m. iSubsLMiuent to this judgment, the ap- 
 pellant applied to the judge who tried tlie p'^*-i- 
 tioii, to extend tlio time for giving the notice, 
 whereup(ui the said judge granted the applici- 
 tiou and made an order, "extending the time 
 for giving the prescribed notice till tlie 10th day 
 of December then next." The case was again set 
 down for hearing at the February session follow- 
 ing, being the nearest convenient time, and iioti.'e 
 of such setting tlowii was dulj' given within the 
 time mentioned in the order. The respoiuUiit 
 thereupon moved to dismiss the appeal, on the 
 ground that the appellant undulj' ilelaycd to 
 prosecute his appeal, or failed to bring the same 
 on for hearing at the next session, and that the 
 judge who tried the petition had no power to 
 extend the time for giving such notice alter the 
 three days from the first setting down of the case 
 forbearing by the Registrar of this court : — Held, 
 that the power of the jnilge who tried the peti- 
 tion to make an order extending the time for 
 giving such notice is a general and exclusive 
 power to lie exercised according to sound discre- 
 tion, and the judge having made such an order 
 in this case, the appeal came properly before the 
 court for hearing. (Taschereau, J., dissenting.) 
 A'o;7/( Ontario Election (Duni.) — Wheeler v. 
 O'ibhs, 3 S. C. R. 374. 
 
 5. Cross Apjieah 
 
 An appellant in the Court of Queen's Bench, 
 Quebec, who had partly succeeded, appealed to 
 tlie Supreme Court on the ground that the judg- 
 ment was yet excessive. At the same time the 
 rcspoiidentappealed on thy ground that the judg- 
 ment of the superior court ought to have been 
 affirmed. This secoinl ap()eal was treatetl by the 
 court as a cross-appeal under the Supreme Court 
 rules, and the respondents on the second appeal 
 having succeeded in getting the judgment re- 
 versed on the second point and confirmed on the 
 first point, were allowed costs of a cross-appeal. 
 Pilon et at. v. lirunet, 5 S. C. R. 318. 
 
 6. Amendment of Pleadimjs. 
 
 D. McM. the respondent, sued S. W. B. Co., 
 the appellants to recover damages alleged to have 
 been sustained by reason of the obstruction of 
 the river Miramichi by appellants' boom. The 
 pleas were not guilty, and leave and license. On 
 the trial the counsel proposeil to add a plea, that 
 the wrong complained of was occasioned by the 
 extraordinary freshet. The counsel for the re- 
 spondent objected on the ground that such plea 
 might have been demurred to. The learned 
 juilge refused the application, because he inten- 
 ded to admit the evidence under the plea of not 
 guilty. On appeal, the counsel for the appellant 
 contended tliat the obstruction coniplainedof was 
 justified under the statute 17 Vict. c. 10, N. B., 
 incorporating the Southwest Boom Company : — 
 Held, that the appellants, not having put in a 
 plea of justification under the statute, or ap- 
 plied to the Supreme Court of New Brunswick 
 in banco for leave to amend their pleas, could 
 
Vi>l 
 
 TAVERI^S AND SHOPS. 
 
 752 
 
 C 
 
 If' 
 
 
 
 5'- 
 
 not rely on tlmt ffround boforo this court to re- 
 verso the decision of tbc court Iielow. T/ir Saiilk- 
 vest lioKVi Cv. V. McMi/lnii, 3 S. (!. R. 700. 
 
 See also Minirc v. Thf. Coniirrticiit Mutual Ins. 
 Co. of Hartford, S. C. K. ()34. 
 
 8. CoHtH. 
 
 Held, that appellants, not having tendered 
 with their i)h'a costs accrued up to and inclusive 
 of its production, aliould j»iy to the respoiidcnt 
 the costs incurred in the court of tirst instance. 
 JCtiia Life lux. Co. v. Hrvilir, 6 S. C. 1{. 1. 
 
 On apj)eal to the Court of Appeal the judg- 
 ments of the Court of Chancery in favour of the 
 I>laintill's respectively, were atlirnied with costs 
 of appeal ; and the defendants ai)j)ealed to th(! 
 Supreme Court. In the first case that court gave 
 leave to the defendants (ajipellants) to amend 
 tiieir answer, saying nothing as to costs, and 
 upon such amendment being made, declared 
 that the award u))nn which tiie l)ill had been 
 filed should be null and void, l)ut said nothing 
 about costs. In the second case the Supreme 
 Court ordered a new trial to be had ))etween the 
 j)arties, without costs to either party. The 
 plaintifTs having obtained orders of the ( 'ourt of 
 Chancery making the certitieates of the Court of 
 Appeal, of the judgments in api)eal, orders of the 
 Court of Chancery, issued executions thereon 
 for the costs awarded in appeal : — Held, that 
 the plaintifi's were not entitled to the costs of 
 the ajjpeal to the Court of Ap|)cal, and the exe- 
 cutions were .set aside. Nurrtill v. Cdiinila 
 Southern R. W. Co. — ('iiiiiilni;/iinn v. Cdiuula 
 Southern li. 11'. Co., « I'. U.' 331).— I'roudfoot. 
 —Full court. 
 
 Sec PUon 
 p. 750. 
 
 et oL v. JhiiiKt, Ti S. C. K. 318, 
 
 SURETY. 
 See Principal and Surety. 
 
 SURKENDER. 
 
 I. Ok Lea.sks — See Laniiloki> and Ten- 
 ant. 
 
 II. By Bail— .SVc Bail. 
 
 SURROGATE COURT. 
 See Ik O'Brien, 3 0. R. 32(1, p. 
 
 267. 
 
 SURVEY. 
 
 See Statute of Limitations. 
 
 In questions relating to boundaries and descrip' 
 tions of lands, the well established rule is, that 
 the work on the ground governs ; and it is only 
 where the site of a monument on the ground ia 
 incapable of ascertainment that a surveyor is 
 authorized to apportion the (juantities lying be- 
 tween two defined or known boundaries. There- 
 
 fore, where an original monnmcnt or post was 
 ])lanted as indic:iting that the north-west angle 
 of a lot was situated at a distance of half a chain 
 south therefrom, and another surveyor had actu- 
 ally planted a post at the spot so indicated, and 
 subse(piently two surveyors, in total disregard 
 of the two posts so ]ilanted, both of which were 
 easy of ascertainment, made a survey of the lo- 
 cality and placed the post at a ditl'ereut s])ot : — 
 The court (Spragge, C. ) disreganled the survey, 
 and declared the north-west angle of the lot to 
 be as indicated by the first mentioned monument. 
 Artleii v. Curry. 29 Chy. 243. 
 
 A surveyor m making a survey is under no 
 statutory obligation to perform the dut}', but 
 undertakes it as a matter of contrc-jt, and is 
 liable only for damages caused by want of rea- 
 sonable skill, or by gross negligence. The de- 
 ftindant, a i>rovincial land surveyor, who was 
 employed l)y the plaintifi's to run certain lines 
 for road allowances, proceeded upon a wrong 
 ])rinciple in making the survey, and the plain- 
 tifi's sued him for damages which they had ])aid 
 to persons encroached upon by opening the road 
 according to his survey : — Held, reversing the 
 judgment of the Common Pleas, (31 C!. V. 77,) 
 that tlie plaintill's could not recover, as although 
 the survey was made by the defeiK'ant on an er- 
 roneous principle, the evidence failed to prove 
 that the lines as run by him were not correct, 
 (^ua're, per Patterson, J. A., whether the fact 
 tliat the plaintiffs knew that the correctness of 
 the survey was (ine8tione<l before the opening 
 the road, did not make them guilty of contribu- 
 tory negligence. Remarks upon the impro- 
 priety of receiving the ojiinions of surveyors 
 as experts, as to the proper mode of making a 
 survey under a statute. Corporntion of the Town- 
 shiji of Stafford v. Bell, 6 A. K. 273. 
 
 Expense incurred for surveys and other spe- 
 cial work of that nature, made in order to (jualify 
 witnesses (surveyors) to give evidence are not 
 taxable between party and party, the English 
 Chancery Order 120 (1845) not being in kirce 
 here. McGannon v. Clarke, 9 P. R. .'»55. — -Boyd. 
 
 Compensation forimprovements inconsequence 
 of unskilful survey. See Plumb v. SteiiihoJ', 2 
 O. R. (514, p. .S32. 
 
 SURVEYOR. 
 See Survey. 
 
 TAVERNS AND SHOPS. 
 I. Legislative Authority, 753. 
 II. Supplying Liquor after Notice, 753. 
 
 III. Selling Liquor without License. 
 
 1. IVho Liable, 753. 
 
 2. Convictions, 753. 
 
 IV. Miscellaneous Cases, 754. 
 
 V. Canada Temperance Av-t—See Canada 
 Temperance Act, 1878. 
 
 VI. Open Taverns and Treating on Elec- 
 tion Days — See Parliamentary 
 Elections. 
 
752 
 
 753 
 
 TAVERNS AND SHOPS. 
 
 754 
 
 it or post wns 
 irtli-west angle 
 
 of liiilf acbuiii 
 voyor hiul actu- 
 indicated, and 
 total (liHregard 
 of which were 
 rvey of the lo- 
 tl'd'ont s])ot : — 
 
 ed thi! Hurvey, 
 ,de of the lot to 
 lied iiionuinent. 
 
 I. Lehislative Acthoritv. 
 
 See Tiiiiina v. ffoili/i; Rnihia v. Frawln/, 40 
 <}. B. 141, 153 ; 7 A.'l{. 241) ; 9 Ann. Cua.' 117, 
 l>. 120. 
 
 !y IS under no 
 tliu duty, but 
 >iitri":t, and is 
 r want of rca- 
 jnee. The de- 
 uyor, wlio was 
 a curtain lines 
 upon a wrong 
 and the plain- 
 they had paid 
 )cniug tlie road 
 reversing the 
 (31 C. P. 77,) 
 rer, as although 
 ni'ant on an cr- 
 failed to prove 
 re not correct, 
 letlier the fact 
 correctness of 
 re tlie opening 
 Ity of contribu- 
 on tliu inipro- 
 is »)f surveyors 
 le of making a 
 Hon of the Town- 
 113. 
 
 and other spe- 
 ordor to (jualify 
 t'idence are not 
 ty, tlie Knglish 
 . being in force 
 
 K. r«55.— Boyd. 
 
 a inconsequence 
 I V. SlriiihoJ', 2 
 
 OPS. 
 
 ', 763. 
 
 R Notice, 753. 
 
 FT License. 
 
 '54. 
 
 ivr—Sec Canada. 
 8. 
 
 lATJNd ON ElF.O- 
 
 L'arliamentaky 
 
 II. SrvPLYiNfi Liquor AFfER Notice. 
 
 The jilairititr, whose husband wns in the habit 
 of drinking intoxicating lifjuors to excess, gave 
 notice to tlio defendant, a duly licensed inn- 
 keeper, forbidding him to supjdy liipior to her 
 husband ; in cr)nso(|uonco of whicli the ilufcn- 
 dant forbade! his lmr-kee]){'r (his son) furnishing 
 liijuor to the husbanil, but the bar-keeper not- 
 with.'itanding <Ud serve the i)laintiff'8 linsband 
 with liipKtr in the tavern kept })y defendani . 
 H. S. <). c. 181, 8. 90, enacts that if the person 
 so notified delivers or suffers to be delivered any 
 such Ii(|Uors to the person named in the notice, 
 the ])crson giving such notice may recover from 
 him not less than .S20, nor more than $200, to l)e 
 assessed by tlio court or jury asdamiigea ; — HcM, 
 that defendant was liable. Hugill r. Merrifield, 
 12 C. P. 2G4, overruled. Aunt in v. Davis, 7 A. 
 11. 478. 
 
 III. Selling Liquor without License. 
 
 1. Who liable. 
 
 A married woman was leasee of certaia pre- 
 mises in wiiich her husband sold licpior without 
 a license, contrary to tlie provisions of K. S. O. 
 c. 181 : — Held, that she was liable to be fined 
 under s. 83 of the Act, although the sale of 
 li(|Uor took place in her absence. Iit<jiua v. 
 Camphi'll, 8 P. 11. 55.— Hagarty. 
 
 The defendant, a servant of one Ward, the 
 keeper of an unlicensed tavern, was convicted of 
 selling lifpior in hermastnr's absence. Oameron, 
 J., hehl the conviction good, the case being un- 
 distinguishable in principle from egina v. Wil- 
 liams, 42 Q. B. 4f)2, though he wouhl otherwise 
 have held the master alone responsible, under 
 the Tiiquor License Act, R. S. O. c. 181. Jieyina 
 V. Howard, 45 Q. B. 346. 
 
 2. Cotmctions. 
 
 Section 51 of the Litjuor License Act, R. S. 
 ■O. c. 181, which imposes the penalties, omits all 
 reference to a third offence (which was provided 
 for in the enactments of which it is a consoli- 
 dation), though such an offence is referred to in 
 sec. 73, which deals with the procedure, and in 
 the forms of conviction given by the Act. A 
 conviction for a third offence was therefore 
 quashed, although the penalty imposed thereby 
 might have been inflicted for a second offence. 
 Jieyina v. Frmoley, 45 Q. B. 227. 
 
 The defendant was licensed to sell " in and 
 upon the premises known as the Palmer House." 
 The Palmer House stood upon the front pare of 
 a deep lot owned by the defendant, the rear part 
 of which had been for many years enclosed and 
 used as a fair ground, immediately w^ithin which 
 enclosure the defendant sold liquor, for which 
 he was convicted: — Hehl, that as the fair ground, 
 though part of the lot on wliich the hotel stood, 
 was not used in connection with or for the en- 
 
 48 
 
 I joyinent of the hotel, it was not criverod by the 
 license, and the conviction was right. Itrjina 
 V. /'aimer, 40 Q. B. 202. 
 
 A certiorari will not lie to remove a conviction 
 
 I under "The Liipior License Act," K. S. (). c. 
 
 I ISI, s. 48, which lias been aliiniicil ami anii^iid- 
 
 j eil on appeal to the sessions, for issuing a licMisc 
 
 I contrary to tlio said .Vet, tlic jirocodure being 
 
 rigulated by .32-3.'{ Vict. c. 31, s. 71. D. as 
 
 amended by .33 Vict. c. 27, s. 2, I). Reijina v. 
 
 dralnucr, 40 Q. \i. VMi. 
 
 The court refused to quash a conviction under 
 the Fjii|Uor License Act adirmcd on appi^al, on 
 the ground among others, that the general ver- 
 dict of guilty was im-onsistcnt with the answers 
 of the jury to specific (juestions. lleijina v. 
 (IraiiKjn; 40 (J. B. 382. 
 
 Defendant was convicted for a third time of 
 having sold liquor without a lii'cnse, and was 
 sentenced to three months' imprisonment with 
 hard labour ; — Held, following llegina v. Fr.vw- 
 Icy, 40 Q. B. 153, tliat the magistrate hail not 
 power to im))ose liard labour, and the conviction 
 was thercjfore invalid. Ifei/inn v. AllhrKjhl, 9 P. 
 H. 25.— Osier. Overruled by The Queen v. Hotf,'/e, 
 9 App. Oas. 117, p. 120. 
 
 Semble, that in such a case a judge has no 
 power to amend the conviction under R. S. (). 
 c. 181, s. 77, as amended by 44 Vict. c. 27, by 
 striking out the part imposing hard labour. Ih. 
 
 Defendant was convicted for selling liquor 
 without a license on Dickinson's Island, in L:ike 
 St. Francis : — Held, on an application for a cer- 
 tiorari, I. That the island was part of the ccninty 
 of (Jlcngarry, and therefore within the jurisdic- 
 tion of tile jiolice magistrate. 2. That the Li([iior 
 License Act applies to Indian land under lease 
 from the crown to a private individual. 3. That 
 only the holder of a license cm be prosecuted 
 under sec. 43 of the above Act, for selling liquor 
 on prohibited days. Reijina v. Duquette, 9 P. R. 
 29— Osier. 
 
 IV. Miscellaneous Cases. 
 
 The defendant and his brother were carrying 
 on business as Booth Bros., and had a license in 
 the name of the iirin to sell intoxicating liquors. 
 Before the nomination of members of tlie Park- 
 dale council the defendant, with the consent of 
 the license commissioners, transferred his interest 
 in the license to his brother, in order to qualify 
 as a councillor, but the business continued as 
 before :— Held, affirming the decision of the 
 master in chambers, that a license cannot law- 
 fully be transferred except in the cases mention- 
 ed in R. S. O. c. 181. s. 23, none of which had 
 occurred here : that the consent of the commis- 
 sioners did not validate the transfer, and there- 
 fore that the defendant, who retained his interest 
 in the license, was not qualified to be a coun- 
 cillor. Per Armour, J. The Act discpialifying 
 a licensee should ha construed strictly, and 
 should not be extended to the partner of a per- 
 son lawfully holding a license in his own name. 
 Ref/ina ex rel. Brine v. Booth, 3 O. R., Q. B. D. 
 144 ; 9 P. R. 452. See also, Rnfina ex reL 
 Clancy v. Conway, 46 Q. B. 85, p. 480. 
 
 See Roberts v. CUmie— Murphy v. Climie, 4ft 
 Q. B. 264, p. 205. 
 
TIMIJEH. 
 
 r.')() 
 
 TAXATION OK COSTS. 
 
 iSVc ('OSTH. 
 
 I- 
 
 
 iT 
 
 TAXKS. 
 I. MiiNicii'Ai.- .SV( As.sk.ss.mi:ntani)Taxks. 
 
 ]I. On Sai.k or I.anh— iSVr Sai-k ok Lanh— 
 <SV. Sam: ok I.anh iiv Oiidku of thk 
 C'ornT. 
 
 TELi:(;i{AMS. 
 
 I'rodiiction of - Sec Sant/i O.i latil Kliclkm 
 lfh,/.)—J/„pl.!iin V. O/Irn; 1 H. K. V. '_M;{, ii. 
 S70. 
 
 TKiMrKJtANCK ACT. 
 Srr Canaha Tk.mi i;i;a.\(k Act, 1878. 
 
 TENANT. 
 
 See Kstatk. 
 
 TENDER. 
 
 Or Dked — See Salk ok Land by Okxjek ok iuk 
 Court. 
 
 TEHMS. 
 See Wouijs AND Tkhm.s. 
 
 TERM'S NOTICE. 
 See PltAtTlCE. 
 
 TIMBER. 
 I. Sale of, T.'iS. 
 II. Damaues, 758. 
 
 III. Ckown Timber— .Sic Crown Lands. 
 
 IV. Floatincj Timber — See Water and 
 
 Water C'ouiisE.s. 
 
 V. Rei'levin— .See Rei-levin. 
 
 I. Sale of. 
 
 The first of three mortgagees having filed a bill 
 for sale, the other two proved their claims in the 
 suit. No one redeemed by the day appointed, 
 but a final order for sale was not taken out, be- 
 cause one v., who had purchased the equity of 
 
 r<'deiii]iti(in, WHH ni.'piti.'iting witli S. tiie tliird 
 mortgagee. During thest! nugiitiatioiix \'. cutiiinl 
 itold ii large ijuaiitity of t' : timber on tlie land 
 to (J,, wlicri'iipoii S. til('<l u liiil iir.iying paynKMit 
 liy (t. of till' jiriic of the tiniln'r, \^llil'll liad unt 
 y<;tbeen paid over; -Ilcld, aliiniiingtlu' Masto r's 
 ruling, ttiat the lir,-t m(Mi'.,'.ige(! \vu.> intitli^d to 
 it. Siiill \. I'lixtiiirii, H V. I{. .■{;}(;— I'roudlnot. 
 
 ('., after iiaviiig rxamini'd a lot, inti'rrd into 
 an agrei)iient w itii \V., the owner, wlierelij' the 
 latter siild all the ]iine timber Htaoiling on the 
 hit to C. , ".such as will make gntiil merchantable 
 waiiey edged tinilx'f, Huitalile l(pr his jiiir]MiKc, at 
 till! rate of )i'\'.\ ;•• v liundred cubic feit,'' and V. 
 paid to \V. .iiil.OOO, "the balance to b(! paid for 
 before tlie tinibtr is removed from the lot." C. 
 cut •T'l!")!. 17 wortliof lir.st-claH.s timl)er, suitable 
 for tlic (Quebec market Mliicli was ;dl of that 
 (.•l:iHH to be fouii<l on the lot, and sued \V. to re 
 cover back the balance of the .Sl,<l()(), namely, 
 !?.'i48.8H : — Held, that the true ciiustruetion of 
 the contract was tlial W. sold and j;raiited toC. 
 jiermission to enter upon his lot, iml cut all the 
 "good merchantable timber theri! growing, suit- 
 able for his purpose," and luit merely " lirst 
 class timber," that tlieit! was more than 
 sutlicient " good merchantable tnnber " still ic- 
 niaining on the lot to cover the l)alauee of the 
 .*i,(M)(), and that tlieie Wiis no I'videiicc to shew 
 that tilt! contract had ))een rescinded I'erTaseli- 
 ereau and (Jwynne, ,!■)., that the paynuMitof the 
 !ii>l,0(iO was an absolute )>;iyment, tlu; plaintill' be- 
 lieving and representing to defendant that there 
 was sullicient timber to cover that amount, if not 
 more, fin the faith of \\ liich representation de- 
 fendant entered into the contract, which he other- 
 wise would n<it have done, and that if the plain- 
 till' made an error, he, ;ind not the defendant, 
 must sillier the 'jonsetiiieuces of this error. 
 Chtdr v. W'liiU; .'} S. C. R. 30!) ; 28 (.'. P. ii'J.S. 
 
 Tlieres])ondents,o«ner.s of timber lands ill New 
 Brunswick, granted C. & S. a license to cut lum- 
 ber on twenty-live s(juare miles. By the license 
 it was agreed inter alia : "Said stuni|)age to be 
 paid in the following manner : Said eonipany 
 shall first deduct from the amount of stump- 
 ago <ui the timber or lumlier eut liy grantees 
 on this license as aforesaid, an amount e<jnal to 
 the mileage (laid by them as aforesaid, a id the 
 whole of the remainder, if any, shall, not later 
 than the ir)th April next, be secured by good 
 endorsed notes, or other sufiicient security, to be- 
 ajipioved <if by the said eonipany, and payable 
 on the 15th July next, and the lumber not to be 
 removed from the brows or landings till the 
 stumpage is secured as aforesaid. And said com- 
 pany reserves and retains full and complete 
 ownership and control of all lunrier which shall 
 be cut from the aforementioned premines, where- 
 ever and however it may be situated, until all 
 matters and things appertaining to or connected 
 with this license shall be settled and adjusted, 
 and all sums due or to become due for stumpage 
 or otherwise, shall be fully paid, and any and all 
 damages for non-performance of this agreement, 
 or stipulations herein expressed, shall be li(|ui- 
 dated and paid. And if any sum of money shall 
 have become payable by any one of the stipula- 
 tions or agreements herein expressed, and shall 
 not be paid or secured in some of the modes 
 herein expressed within ten days thereafter, then 
 in such c -se, said company shall have full power 
 
;:)r> 
 
 767 
 
 TIMBKU. 
 
 ( j.> 
 
 li 
 
 1 S. tilt' tliiril 
 
 ((lis N'. cut ami 
 LM' on tliu laiiil 
 
 lyiii;,' iiiyni(!iit 
 « liii'li liitd i\iit 
 ii\\w Miiste r'n 
 
 u> tiititlml to 
 — I'loudl'oot. 
 
 , tiitcrrd into 
 
 ■, wliiruliy the 
 
 muling on tho 
 
 nit'i'cliantalilL' 
 
 lis jim]MiBC', at 
 
 feet," and C. 
 
 to 1)1' [laid for 
 
 1 tliu lot." C. 
 
 iiilii r, Niiitaltlu 
 
 iiM all ol' tlint 
 
 Hiii'd \V. to ru 
 
 1,(MM), nanicly, 
 
 :iin»triiution of 
 
 d ^raiitod to ('. 
 
 md cut all tliu 
 
 • .^lowiny, Huit- 
 
 nierely " lii»t 
 
 IS nioi'u than 
 
 ndii'i'" Htill lu- 
 
 l)alaiic(' of the 
 
 idencu to sIk'W 
 
 ed IVrTasch- 
 
 payniiiiit of the 
 
 the |ilaintiir he- 
 
 daiit that there 
 
 t aiMoiint, if not 
 
 icsentalion de- 
 
 wliieh heotlior- 
 
 liat if the ))lain- 
 
 the defendant, 
 
 of this error. 
 
 28 (,'. 1". 'jys. 
 
 ler lands in New 
 unse to eut liiin- 
 
 Hy the license 
 stunipage to bo 
 
 Said company 
 lount of stuiiip- 
 ut liy grantees 
 iniount e(jiial to 
 resaid, a id the 
 
 shall, not later 
 .'cured l»y nood 
 t security, to be- 
 y, and payable 
 umber not to be 
 mdings till the 
 . And said coni- 
 
 and complete 
 ')er which shall 
 iremiiies, wliere- 
 uated, until all 
 to or connected 
 d and adjusted, 
 lie for stuini)age 
 and any and all 
 this agreement, 
 , shall be li(iui- 
 II of money shall 
 c of the stipula- 
 ussed, and shall 
 ; of the modes 
 thereafter, then 
 have full power 
 
 and ftiithority to take all or any part of said i 
 luiubor wherever or however situated, and to 
 uliHoliitely sell and dispose of the isame either at 
 private or public sale, for cash ; and after de- 
 ducting reaHonable expenses, commissions, and all I 
 suniH which may then be due or may become due 1 
 from any cause whatever, as hwrein expressed, | 
 the balance, if any there may be, they sliall pay ; 
 over on donumd to said grantees, after a reason- 1 
 able time fur uscertaining and liipiidating all 
 amounts due, or which may become due, either 
 as stumpago or damages," For securing the! 
 stumpage payable to respondents under this 
 license (J, & S. gave to the respondents a draft j 
 uiion J. & Vai., which was accepted by .). & Co. , I 
 and approved of by the res[)oiidentH, but which j 
 was not paid at maturity. After giving the draft i 
 V. & !S. sold the huaber to .1. & (,'o., who knew | 
 the lund)er was cut on the pl.-iiiitill's land under ' 
 the said agreement. J. &, (jo, failed, ami ap|iel- 
 lant, their assigiuie took pos.session of the lumber 
 and sold it : — Held, jier Strong, 'rasehcreau and 
 <i Wynne, J J. (nihrming the judgment of the 
 court below), Ritchie, 0. J., and Fournier and 
 Henry, J.I., dissenting, that u[ion the case as 
 submitted, and by mere force of the terms of the 
 agreement, the absolute! property in the lumber 1 
 in (juustion did not pass to C. & S. iminediately j 
 upon the receipt by the company of the accepted I 
 draft of C & tS. on J. & (Jo., and that appellant 
 was liable for the actual payment of the stump- 
 age. McLcoit V. Tlie A^vw Bfuimtukk li. IT. Co., 
 5 S. C. \i. 281. 
 
 By agreement in writing, dated loth October, 
 1873, A. agreed to sell, and B. anl C. agreed to 
 purchase, all the merchantable white and red 
 pino timber.suitablc for their purposes, standing, 
 lying, or being on certain premises owned by A., 
 lor the price or sum of §()00, payable, §400 on 
 date of agreement, and the balance in one year, 
 with a provision that the timber should be cut 
 and removed off the lands, on or before the I5th 
 (►f October, 1881. It was further provided that 
 l>. and C. their agents, representatives, or 
 assigns, should have the right to enter upon the 
 premises at all times during the period for which 
 the agreement was to continue in force, for the 
 purpose of cutting and removing said tind)er ; 
 and that if C, and B. should remove the whole 
 of the timber off the land before the expiration 
 of the year, they would pay the whole of the 
 purchase money immediately after removing the 
 said timber; — Held (I'roudfoot, V. (J., dissent- 
 ing), that this wfia an agreement for the sale of 
 an interest in land ; that prima facie the vendor 
 was entitled to a lien for unpaid purchase money, 
 and that the circumstance that the timber was 
 purchased by B. and C, for the purpose of being 
 eut down and used at their mill as soon as pos- 
 sible, did not deprive the vendor of the right to 
 the lien :— Held, also, that the last proviso in 
 the agreement, as to immediate payment of the 
 purchase money in case of removal of all the 
 timber before the arrival of the time for payment 
 of the $200, did not operate to destroy the ven- 
 dor's right to the lien. B. and C. did not pay the 
 $200, and after the expiration of a year from the 
 date of the agreement assigned it to the defend- 
 ants, who had no actual notice that the $200 re- 
 mained unpaid, but the agreement was registered 
 against the lauds :- Held, that the vendor was 
 entitled to an injunction to prevent cutting and 
 removing by the defendants until the $200 was 
 
 paid. Marshall r. (Iiecii, L, I!., I ( '. P. 1). ;ir., 
 coinmiHitcd u|ioii and distinguished. Smniiur-i v. 
 L'iiok, 28 Chy. 179. 
 
 Under an agreeinont, d.iteil 2iid ( (ctolier, KSSO, 
 the defendant .sold to li. all the pine timber 
 growing on certain lands, to be reinoveil during 
 the years 1880 and 1881. The tinilier was all 
 cut into logs before the end of 1881, but a por- 
 tion was not tiicli removed ; — I K.'ld, tiiat this was 
 a sale of goods and chattels, anil not an interest 
 in land; and the timber so cut having lieeoine 
 the ]ilaintill's property, he had the rigiit to re- 
 move it alter the ex|iiration of the time men- 
 tioned; though, Seinlile, the deleiidant iniglit 
 have a right of aetii>n for not reiiioviiig it within 
 the time. The defendant h.iving refused to per- 
 mit such removal, the plaintill' linniglit replevin, 
 and was held ciititleil to succeed. Mriin()ur v. 
 
 McXdi. ;t2 (;. 1'. r>-M. 
 
 (iuarantee by bank manager as to culling tim- 
 ber. Se(; Ihiliillil (il. V. OiiliirUi liiuih il dl., li 
 O. K. 2!)1» ; !) A. U. 484, p. :{i;j. 
 
 On a sale of "timber limits" held umler liconse:< 
 in pursuance of the (". S. (J. cap. 2H, a clause of 
 simple warranty (garantie de tons troul)les gem'' 
 ralemcnt (juelconi|ues) does not o|)eiiite to ino- 
 tcet the purchaser against eviction by a iiersoii 
 claiming to be entitled under a prior license to a 
 portion of the limits solil. JJacoinlii v. Oiijiin/, 
 1» App. (Jas. l.')0. Reversing ,S'. ( '. (i S. C. I!. 
 42.5. 
 
 See Ilthl V. Sinitli, 2 O. R. (i9, p. 581. 
 
 11. Dam.vcks. 
 
 The plaintifT contracted to deliver tiudier ti- 
 the defendant at St. Igiiaec, to be transported 
 by him to (Quebec for sale there. There was no 
 market nearer to the place of delivery than 
 (Quebec. The plaintiff made default and inaction 
 for the price the defendant counter-claimed for 
 danuiges for non-delivery of the timber ; -Held, 
 Cameron, J., dissenting, reveisiiig the judgment 
 of Burton, J. A., that the measure of ilainages 
 was the value of the timber at <iiiebeo, less the 
 cost of transportation thereto from the point of 
 delivery. I'cr Burton, J. A., and Cameron, J. 
 — -Loss of profits could not be recovered, and as 
 the contract price for such timber had not varied, 
 and there was no evidence of any contract by 
 defendant to re-sell, which could lie taken into 
 consideration, or of any purchase by him to sup- 
 ply its place, there was no right to more than 
 nominal damages, llcmlrie v. Ntehm, 3 O. R. , 
 Q. B. U. oO.S. This case is in appeal. 
 
 The plaintifTs and defendant entered into an 
 agreement in the following terms: "I, the 
 undersigned, agree to deliver S. S. Mutton & 
 Co., 40 iM. ft. blk. ash, with mill culls out f.o.b. 
 vessel on Cornwall canal, at !jlO per M. feot. 
 Also, 10 M. ft. soft elm at .§10 per M. feet f.o.b. 
 vessel on (Jornwall canal, to be delivered in the 
 month of June, 1881, the lumber now on stick 
 and part seasoned," and the plaintiffs signed a 
 corresponding memorandum, agreeing to accept 
 such lumber at the time specified : — Held, that 
 the words "with mill culls out," a])plied to the 
 ash only, not to the elm : — Held, also, that the 
 plaintiff', not having had a vessel ready to rec ive 
 the lumber in Juno, could not recover. I'er 
 
rn!) 
 
 TRANSIENT TRADERS. 
 
 760 
 
 
 Osier, J., time wnH of tlic psRriicc of tlio contrnL't, 
 iiiirl flic <l('f('ii(1ant was not Iponnd to flflivcr tlie 
 IninlicT in Sc'iitiiiilitr. Miilloii v. J)ii/, 7 A. J{. 
 40.-). 
 
 TIME. 
 
 I. NoTicr. OF Calls on Stock — See Couro- 
 
 IIATIONS. 
 
 II. TiMK KOK Ari'KALiN(i — See Court of 
 
 AlI'K\L— PUACTICE. 
 
 III. Ti.MK Kon I)i:( i.AUiNd OR Pleaiiino — See 
 Plkadino, 
 
 Tin; idiiintilf mill others, councillors of the town 
 of I'ctriiliii, atteiidt'tl n meeting of the council on 
 the Mh Aoril, They were iibseiit at the next 
 meeting called for and held on the Slat M y and 
 thenceforward, without authoriz.ition, till tlie 
 7tli of 'luly, when, at a meeting of the council, 
 a lesolution declaring their seats vacant, and 
 ordering a new election was put. and an ;inicnd- 
 ment to refer the matter to the town solicitor 
 was lost ; whereuiKin the dissentients left the 
 room, ill eonse(iiieiice of which there was no 
 quorum, when the original motion was put and 
 carried : — Held, that the three months should 
 Le counted from the .Slst May, being the first 
 mctiting that the plaintiffs had not attended ; 
 ami that the resolution was therefore void, as 
 well as on tlie ground that there was no quorum 
 present when it was passed. Mfuriinv. 'J lie Cor- 
 jjonttioii of the Town of' PttruHa, 28 C!hy. 98. 
 
 In computing the time within which an action 
 must Iiclirought under the provisions of the Divi- 
 sion Courts Act, R. S. O. 0. 47. a. 2'U, the 
 day on which the fact was committed must be 
 excluded. See Ilanns v. Johnston, 3 O. K. 100, 
 p. 4. 
 
 Time of filing bond on appeal to Supreme 
 Court. See McCrae v. While, 9 P. R. 288, p. 
 749. 
 
 An allegation in a conviction that the ofifence 
 was committed between the .SOth June and the 
 3lat July, was— Helda sufficiently certain state- 
 ment of the time. See Heyina v. Wallace, 4 O. 
 R. 127, p. 100. 
 
 A chattel mortgage was duly executed on the 
 12th of July, and filed on the 18th, the 17th 
 having been Sunday : — Held, affirming the judg- 
 ment of the County Court, that such registration 
 was too late, the Act R. H. O. c. 119, requiring 
 the same to be effected within five days from the 
 -execution of the instrument ; that Sunday count- 
 ed as one of such five days, and that Rule 457, 
 O. J. Act did not apply. McLeanx. Pinke.rton, 
 7 A. R. 490. 
 
 III. Cloud ns—See Sale of Land. 
 
 IV. Improvements itndfr Mistake ofTitle 
 
 — See iMrilOVEMKNTM ON LaSD. 
 
 V. By Po.ssEssioN — See Limitation of Ac- 
 tions AND Suns. 
 
 VI. Qi'iF-TiNo Titles — See Qiiiktinci Titlks. 
 
 VII. Slander ov—See Defamation. 
 
 VIII. Tena-.t's Power to Disimic Land- 
 lord's Title— .SVc Landlord and 
 Tenant. 
 
 IX. Requisite to Maintain E.iectmeni'— 
 Si'e l'liE(rrMENT. 
 
 X. Proof of in Trespass— .Vcc Trespass. 
 
 XL Jurisdiction of Division Courts when 
 Title to Land is in Quf.stion-- 
 See Division Courts. 
 
 XII. OusTiNO Jurisdiction rv Claim of 
 Title— iSV Justices of the Peace. 
 
 TOLLS. 
 See International Bridge Company — Way. 
 
 TORONTO (CITY OF). 
 
 Aaaessmcnt for sewers. See fn re Brock v. 
 The Cortmration of the City of Toronto, 45 Q. B. 
 53, p. 490. 
 
 TORT. 
 
 Held, under R. S, O. c. 125, that in an action 
 for a tort committed by a wife duiing coverture 
 the husband is not a proper party but the wife 
 must be sued alone. Amer v. Rogers etux,, 31 
 C. P. 195. 
 
 In torts the principle of ai?eiicy does not apply ; 
 each wrong doer is a principal. See The Ontario 
 Industrial Loan and Investment Co. v. Lindsey, 
 et at., 4 O. R. 473. 
 
 TITLE. 
 
 I. On Sale of Land — .SVp Sale of Land — 
 Sale of Land by Order of the 
 Court — Specific Performance — 
 Vendors and Purchasers' Act. 
 
 II. Covenants Fon—See Covenants for 
 Title. 
 
 TRADE. 
 I. Usage or—See Custom and Usage. 
 ,11. Restraining Trades— See iNJUNcnoN. 
 
 III. Infringement of Trade Marks —See 
 
 Injunction. 
 
 IV. Trade Fixtures— -See Fixtures. 
 
 TRAMWAY. 
 
 See The Corporation of the County of York v. 
 The Toronto Gravel Hoad and Concrete Co., 3 
 0. R. 584, p. 129. 
 
 TRANSIENT TRADERS. 
 See Municipal Corporations. 
 
7f)0 
 
 -AND. 
 
 ^takkopTitlk 
 s ON Land. 
 
 TATION OP Ac- 
 
 IKTINO TiTLKS. 
 \TION. 
 
 iMiui:; Lanp- 
 Landlord and 
 
 e,iectmkn1<— 
 
 ?ce TiiESPASii. 
 
 < Coi'HTS WHEN 
 IN QUESTION— 
 
 'S. 
 
 iiY Claim of 
 s OF THE Peace. 
 
 MPANv — Way. 
 
 )F). 
 
 In re Brock v. 
 itronto, 45 Q. B. 
 
 Iiat in an action 
 tiling coverture 
 •ty but the wife 
 ioyera etux,, 31 
 
 does not apply ; 
 See Thif Onlario 
 Co. V. Lindsey, 
 
 iND Usage. 
 •See Injunction. 
 E Marks — See 
 
 [XTOKBS. 
 
 unty of York v. 
 Concrete Co., 3 
 
 ERS. 
 
 ATIONS. 
 
 761 
 
 Til ESP ASH. 
 
 762 
 
 TItKATINO. 
 See Pauliamentauv Klections, 
 
 THKKS. 
 See TiMiiEH— Way. 
 
 TUESPAS.S. 
 L To Healtv. 
 
 1. Bij (tud Ayitiiint IV/wm, 701. 
 
 2. Title and I'uMemiiou, 7(51. 
 
 3. Scvcrnl Trcnixtnnen, 7()2. 
 
 4. Vamtiijcn, 7<i2. 
 
 5. Jnjiinr/tun to rvHlrahi Trcujjdxi, 7(52. 
 0. Hjl'cct of Jmljinifid in Trcujiumi, 7(53. 
 7. Oiinli'in Jiiriidiiiion hji Claim oj Title 
 
 Sen Jl',STICE.S OF THE PEACK. 
 
 IL For Malicious Prosecution, 7(53. 
 
 III. False Imprisonment, 7()3. 
 
 IV. For W'ro.noful Distress — .See Dis- 
 
 tress. 
 
 I. To Kealtv. 
 
 1. By and Aijuinut llVtom. 
 
 Held, Armour, J., disauiittng, that the Crown 
 timber licuusuH cluimuil by the plaiutitl' us licen- 
 see of the Ontario Government were subject to 
 the right of tlie Canada Central Uuilway Com- 
 pany, acijuiretl before confederation, to construct 
 the road across tlie Crown lands over wliicii tlie 
 licenses in question extended, and tliat the de- 
 fendants assignees of the railway company were 
 therefore not liable for trespass for entering 
 upon and cutting timber '. tlie said limits in 
 prosecution of the work iU'ing the said rail- 
 
 way. Fonin V. Mclntyrt '. 45 Q. B. 288. 
 
 See McL'llan v. McKl O. Pv. 210, pp. 
 
 331, 404. 
 
 inti'i'cHt in the land. Ttie plaintitT was in de- 
 fault witli St. (i. ulien tlie lU'tiun was brdiight, 
 but not when the trespaHSus were counnittcd: — 
 Held, tiiat there was sulhcieiit evidence ol plain* 
 tills title as against >St. (>,, tor the evidence 
 shewed a partly perrorined agreement which 
 could have been eiiloreed; and even if the [uixif 
 of >St. (j.'s title was defective the adnnsHiuns of 
 the tleteiidants (.'. Si, S., who were mere trespass- 
 ers, were sulHcieiit evidence of title to constitute 
 plaintill's acts of entry on the land constnictivo 
 piisscssion of it by him; and tlic onus was mi the 
 defeiidaiics of shewing either that .St. (i. had no 
 title or that any title acipiired by the plaiiitill' 
 under him ha<l been lost:— llehl, also, that al- 
 tliongh by the agreement time was of the es^eueu 
 thereof, and there was default made, there was 
 no default when the trespasses were eoinniitted, 
 and deteiidants not claiming under >St. (i. could 
 not set up his right to avoid the agreement, but 
 as it was suggested that St. O. might also bring 
 an action lor the same trespasses, a release thereof 
 from him was directed to be filed. With respect 
 to two other deienilants P. S.und F., the verdict 
 was set asi le, for not only was there no evidence 
 against tliein, but the record was defective in 
 that an interlocutory judgment had been signed 
 against tliem for iicm-appe.iranee, without their 
 having been declared against. Joknstun v. Clirin- 
 tie el at.. 31 C. P. ;«%. 
 
 Per Burton, J. A. The owner of an eciuitable 
 estate cannot, notwithstanding the iludicature 
 Act, proceed against trespasser in his own name. 
 He is still bouiul to sue in the name of hi.s 
 trustee. Ailantson v. Adamnun, 7 A. H. 592. 
 
 Actual occupation of land is not essential to 
 trive a right to maintain trespass by one who lias 
 the legal title. It is sufficient that he enter upon 
 the land so as to put liimsulf in legal possession 
 of it: — Held, that putting up boards on the land 
 by the owner, stating that the land was for sale, 
 was a suthcient entry upon his part to vest the 
 legal pcjssession in liini to enable him to main- 
 tain formally an action of trespass. Donovan v. 
 Herbert, 4 O. K., C. P. D. 635. 
 
 2. Title ami Possi: ■. 
 
 On the 18th November, 1878, one (^. . 
 agent for St. G. , under a power of attorn iy . 
 empowered him only to protect and lease 
 G.'s lands, but not to sell, agreed with the plain- 
 tiff to sell him a wild lot, the purchase money to 
 be paid by ten yearly instalments, and time to 
 be of the essence of the agreement. The plain- 
 tifi paid only one instalment, which Q. said he 
 forwarded to St. G., who ratified the agreement. 
 Shortly after the agreement the plaintiff, with 
 Q.'s permission, went on the lot and cut and re- 
 moved some timber therefrom, and some two or 
 three days afterwards went back and worked 
 half a day underbrushing, but did no further 
 clearing, except to cut timber for firewood. The 
 defendants C. & S., under a mistake as to the 
 plaintiff's boundary, trespassed on the land by 
 cutting timber thereon, but on the boundaries 
 being settled they offered plaintiff compensation, 
 though C. said his offer was for the plaintiff's 
 
 See iWcConayhy et al. v. 
 009, p. 422. 
 
 Denmark, 4 S. C. 11. 
 
 3. Several Trespasses. 
 See Roi-i v. Hunter, 7 S. C. R. 289, p. 702. 
 
 4. Dama<iea. 
 
 ^e^ ' .ontained two several parcels of land 
 ai^ .aiitiff was evicted from one, but was 
 
 still owner of the most valuable parcel : — Held, 
 tliat tlie measure of damages was not the whole 
 purch ise money, but only the proportionate value 
 of that part to which the title failed. AIcKaij v. 
 McKay, 31 C. P. 1. 
 
 See Dowjlas v. Fox et al., 31 C. P. 140, p. 502; 
 Mitchell V. McDufi/, 31 C. P. 2(50, 649, p, 211 ; 
 Robinson v. Hall, 1 O. R. 26(;, p. 457. 
 
 5. Injunction to Ilatrain Trespass. 
 
 See Grand Trunk R. iV. Co. of Canada v. Credit 
 Valley R. W. Co. ci al., 27 Chy. 232, p. 344 ; 
 Fenelun. FalU v. Victoria R. W. Co. 29 Chy. 4, 
 p. 343. 
 
■5 PM 
 
 7G3 
 
 6. EjI'ect of Juihjment in Tn/'pd.t.i. 
 
 
 A judgment in favour of the iiliiintiff in an 
 action for trespass to lands upon jdeas (amongst 
 others) of hind not plaintiff's and liberum tene- 
 inentum, is not a coinjiletc estoppel, jjreventing 
 the defendant in another suit, from (]uestioning 
 the ))laintitt's title to any jjart of the lands. 
 'I'lic judgment is only an estoj)pel witli regard to 
 tlie title of that portion of the land upon which 
 it had been sliewn that the defendant had tres- 
 passed. Hunter V. Birwij, 27 C'hy. 204. 
 
 II. Fon Malicious Prosecutiox. 
 
 See MaalonaJd v. IJeniPood et al, ',\2 C. P. 
 433, p. 443. 
 
 TRIAL. 764 
 
 IV. Eeferknce from Superior to County 
 CoiKT AND Vice Versa, 766. 
 
 V. Postponement of Trial, 766. 
 
 VI. Questions Submitted to and Findings 
 
 BY JuRV— .S'ef Jury. 
 
 VII. ^Miscellaneous Cases, 766. 
 
 N'lll. Of Contested Elections— S'ee Parlia- 
 mentary Elections. 
 
 IX. County Judoe's Criminal Court— ,9c<; 
 Criminal Law. 
 
 X. New Trial- .SVe New Trial. 
 
 XI. Verdict — See Verdict. 
 
 III. False Imprisonment. 
 
 The 41 Vict. c. 9, intituled "An act to widen 
 and extend certain public streets in the city of 
 St. Jolm," autliorizcd commissioners appointed 
 \>y the governor in council to assess owners of 
 the land who would lie benefited by the widen- 
 ing of the streets, and in their report on the ex- 
 tension of Canterbury street, the commissioners 
 so apiiointed assessed the benefit to a certain lot 
 at .S419.4(), and ])ut in their report the name of 
 the appellant (McS.) as the owner. The amount 
 so assessed was to be paid to the corporation of 
 the city, and, if not, it was the duty of the re- 
 ceiver of taxes appointed by the city corporation, 
 to issue execution and levy the same. McS., 
 .although assessed, was not tlie owner of the lot. 
 S., the receiver of taxes, in default, issued an ex- 
 ecution, and for want of goods Mc8. Wiis arrested 
 antl imprisoned until he p.aid the amount at the 
 chamberlain's office in the city of St. John. The 
 action was for arrest and false imprisonment, 
 .and for money had and received. The jury found 
 a verdict for McS. on the first count against both 
 <lefendants ; — Held, (reversing the judgment of 
 til ''upreme Court of New Brunswick), that S. , 
 w'l ; jsued the w.arrant founded upon a void as- 
 sess., lent and caused the arrest to be made, was 
 guilt,' of a tresp.ass, .and being .at the time a ser- 
 vant <>" the cori)oration, under their control and 
 specially appointed by them to collect .and levy 
 tlie amount so assessed, the maxim of respondeat 
 superioi- ajiplied, and therefore the verdict in 
 favour of McS. for !?(i3,5. 39 .against both respond- 
 ents on the first count should st.and. (Ritchie, 
 C. J., and Taschereau, J., dissenting.) Per 
 Gwynne, .1. : That the corporation had adopted 
 the act of their officer as their own by receiving 
 and retaining the money paid and authorizing 
 McS. 'a discharge from custody only after such 
 payment. McSorley v. The Mayor «tc., of the 
 City of St. John ct al., 6 8. C. R. 531. 
 
 See Reid v. Mmihee, SIC. P. 384, p. 404 ; 
 McLellanv. McKinnon, 1 O. R. 219, pp. 331,404. 
 
 TRIAL. 
 
 I. Notice of Trial and Assessment, 764. 
 
 II, Conduct of Causes, 765. 
 
 III. Evidence and Witnesses — See Evi- 
 dence. 
 
 I. Notice of Trial and Assessment. 
 
 Held, that in an action commenced by a writ 
 not specially endf>rsed, where the defendant does 
 not pleail to the declaration, the plaintiff must 
 sign interlocutory judgment ag.ainst the defend- 
 ant before he is in a position to serve notice of 
 trial and assessment of damages. Fciiwick v. 
 Donuhuc, 8 P. K. 116.--Dalton, Q. C. 
 
 A summons to dismiss an .action for breach of 
 an order to examine, gener.ally implies a stay of 
 proceedings ; but where the judge who granted 
 the summons struck out tiie part relating to a 
 stay, and tlie summons was afterwards enlarged 
 witliout any mention of .a, stay, .a p.otice of trial 
 served while the summons was pending, w.as — 
 Held, to be regular. Mercliandt' Bank v. Pier- 
 son, 8 P. R. 129.— Dal ton, Q. C. 
 
 Plaintiff's and defendant's attorneys had an 
 .arrangement between themselves by which p.apers 
 in the suit should be sent bj- mail. The notice 
 of trial was posted the d.ay before the last for 
 giving notice, but reached defendant's attorney 
 one day too late. It was shewn that the prac- 
 tice of boUi attorneys had been to admit service 
 as of l.'.e day of receipt : — Held, that tiie notice 
 of tri.al must be set aside. Robson o. Arbuthnot, 
 3 P. R. 313, distinguished. McDonotnj/i v. Ali- 
 son, 9 P. R. 4. — Ualton, Master 
 
 A writ in ejectment wa" served on the loth 
 August, 1881, and .an appearance entered .after 
 the 22nd of the s.ame month : — Held, that the 
 plaintiff need not file a st.atement of claim, under 
 the new^ practice, and that a notice of trial serv- 
 ed immediately after the entry of the appearance 
 was regular, the cause being then at issue. Laid- 
 law V. Ashham/h, 9 P. R. 6. — Dalton, Master. 
 
 A cause is at issue where a joinder of issue 
 h,as been delivered, or where three weeks htvve 
 elapsed after statement of defence has been de- 
 livered. A notice of tri.al served before either of 
 these events had happened was — Held, irregular 
 and was set aside. Schneider v. Proctor, 9 P. 
 R. 11. — Dalton, Masi.i: 
 
 Where notice of trial has been given it cannot 
 now be countermanded by either party. Friendly 
 V. Carter, 9 P, R. 41. — Dalton, Master.— Oaler. 
 
 The words " according to the present practice 
 of the Court of Chancery," in Rule 266, are only 
 intended to determine that the entry of the suit 
 for trial is to be made with the proper oflicer of 
 the Chancery Division, leaving the time of entry 
 to be determined by tho preceding rules, 259 and 
 
764 
 
 OR TO County 
 SA, 766. 
 
 766. 
 
 AND Findings 
 
 i6. 
 See Paklia- 
 
 L CouET— .S'c*; 
 
 ilAL. 
 
 CESSMENT. 
 
 need by a writ 
 lefendant does 
 plaintiff must 
 1st the dfcfeiid- 
 serve notice of 
 8. Fcnwick V. 
 ►. C. 
 
 ti for breach of 
 iplies a stay of 
 ;e who granted 
 relating to a 
 wards onhirged 
 \ notice of trial 
 pending, was — 
 ' Bank v. Pii'i'- 
 
 ;orneya had an 
 by which papers 
 lil. The notice 
 :)re the last for 
 dant's attorney 
 1 that tlie prac- 
 o admit service 
 that tlie notice 
 m u. Arbuthnot, 
 Uonouijli V. Ali- 
 
 ed on the loth 
 :e entered after 
 -Hehl, that the 
 of claim, nnder 
 ice of trial serv- 
 f the appearance 
 at issue. Laid- 
 ilton, Master. 
 
 joinder of issue 
 ree weeks have 
 ce has been de- 
 [ before either of 
 -Held, irregular 
 T. Proctor, 9 P. 
 
 \ given it cannot 
 party. Frmulhj 
 Milliter.— OaXex. 
 
 present practice 
 ule 266, are only 
 !ntry of the suit 
 jroper oflicer of 
 ihe time of entry 
 ig rules, 259 and 
 
 765 
 
 TRIAL. 76G 
 
 264. Ten days' notice of trial is therefore suffi- ' IV 
 cient in all cases cominij within its terms. Bar- ! 
 kc.r V. Furze, !) P. R. 83.--Proudfoot. 
 
 On the 22nd August, 1881, a replication had 
 not been filed, but the suit was in such condition 
 that it couM uheu have baen filed : — Held, that 
 under the 0. J. Act, Rule 494, notice of trial 
 might be given without tiliu:^ a replic ition. 
 Sawi/er v. Short, 9 P. 11. 85. — U.ilton, Matter. 
 
 In an action of replevin tan diys' notice of 
 trial must bo given, inst ;ad of eight diys, as 
 under the old practice. Walldce. v. Cuioin, 9 P. 
 R. 144.— Dalton, Master. 
 
 The words " either pirty," in Rule 2">, O. 
 J. Act, uijaii "any pirty," and whjn an action 
 is as to all tlio p irtic. to it ripe for tri d ona of 
 several defend mts may bring the ca-se on under 
 
 Reference from Supebtob to Coumfy 
 CouKT AND Vice Versa. 
 
 See Merchants' Bmk v. Rroob-r, 8 P. R. 1.3.3, 
 p. 169; Barker v. Leesoii, 9 P. R. 107, p. ITO. 
 
 V. Po31ponement of Trial. 
 
 W. (plaintiff) entered into negotiations with S. 
 (defend int) to purch iso a house which defen Unt 
 I was thou eractinij. W. allesjjd thvt the agree- 
 ment WIS, that ho should t:ii<e the land (24 lots) 
 j at .*iK)J a lot of fifty feet front iga, and th'j mite- 
 I rills furnished and work dona at its value. In 
 i August, 1874, 1 djjd and niirti^ige were exjju- 
 i ted, the c>nsi deration l)jing stat?- 1 in both at 
 ! .5">,92o. Tiie mort2;i;^e was afterwards assigned 
 i to tha M. an 1 .H..\V. L. C.)m:)vny. VV. alle^'ed 
 in his bill, tint S., in violation of goo I faitli, 
 
 that rule by givi.ig notice of trial to the plaintiff and taking advantage of W.'s ignorance of such 
 
 and his codnfendants. McLean v. Thoinpion et 
 al, 9 P. R. 533.— Bjyd. 
 
 II. Co.VDDCT OF C.iUSES. 
 
 Tliedefond mts appeared by the same .attorney, 
 pie ided jointly by the same attornoj', and their 
 defence was, in anb-itmce, ]>recisaly th ; sama, 
 bat thoy wore rapresontad at tha trial by separate 
 counsel. On examination of plaintiff's witness, 
 both counsel cliimed tha right to cross-cKarnina 
 tha witness : — Held, (affirming the ruling of the 
 judge at tha trial), that the ju Iga was right in 
 allowing onlv one counsel to cross-ex.aminc the 
 witness. Walkn- v. McMillan, 6 .S. 0. R. 241. 
 
 .Junior counsel are not at liberty to take po- 
 sitions in argumant which conflict with the 
 positions taken by t'loir leaders. Th" Inter- 
 national Br'nbie Co. v. The Canada Sonthprn R, 
 IF. Co., 7 A.R. 226., but see 19 C. L. J. 358. 
 
 mitters, and the confidanae he place 1 in S., in- 
 serted in tha niort^'ige a largar sum than the 
 bvlanaedue as a fair and reisonaldo market 
 value of tha lands, and of what hi had done to 
 the dwelling house and other premises, and he 
 prayedan aaaount. S. rapu livto 1 the allegation of 
 fraud, and allege 1 that \V. hid every opportun- 
 ity to satisfy himself, and did s itisfy himsalf, as 
 to the value of what he wis getting; tint ho 
 had told the plaintiffhe valued the land at §2,00;), 
 and that in no way hid he sought to tike ad- 
 vantage of tha pliintitf. .S. was unible to lie 
 present at the hearing, and .applied for a post- 
 ponement, on the grounds set forth in an affi la- 
 vit, that he was a material witness on his owa 
 behalf, and that it was not safe for him, in his 
 state of health, to tr ivel from Ottawa to Win- 
 nipeg. Dubuc, .7., refused the postponemant, 
 on the ground that the court was only asked 
 now to decree that the account should be opened 
 and properly taken, and the amount .ascertained, 
 which would be done by the niistar if the court 
 At the trial counsel for the dofend.ant objected ' should so decide, and that the defen lant would 
 
 that there was no suffiaient case made out upon 
 
 one br.inch of the plaintiff's claim, the rectifica 
 
 tion of an ngrecinent. 'i he defend.ants' coun.»el 
 thereupon decli 'cd to argue the point until the 
 evidence w.as closed, and the defemlants then 
 called one witness upon another point : .as to the 
 
 then have an opportunity of being present, .and 
 that he was not nocessarilj'' wanted at the hear- 
 ing ; and, as the result of the evidence, made a 
 ilecrce in accordance with the contentions of the 
 plaintiff, and directed an account to be taken : — 
 Held, that under the circumstances, the case 
 
 ratification, the learned judge ruled that the ""S''* ""* *'^ ''''^'" ''ocn proaoe lei with in .absence 
 jdiintiff had made out no case— and as to the "^ '\PP-''i'"t''\"'^ wi^ihout allowing him the oppor- 
 
 other points ho decided in defendant-s' favour, 
 and dismissed the bill, with costs. Tiiereupon 
 the plaintiff appealed to this court and the ilecree 
 was reversed and tlio relief praye 1 for given to 
 the plaintiff . '^'>n settling the certificate of judg- , 
 
 ment the solic. >r for the defendants objected to sufficient in equity for relief, and w.is 
 that pirt of it which directed the taking of the ; Schiilt-.v. Wool, (i S. C. R. 583. 
 between the parties, and that credit 
 
 tunity of giving his evidence. Per Ritchie, 0. 
 ■J., and Strong and Owynne, .T.T., that on the 
 merits there was no grouml shewn to entitle the 
 plaintiff to relief. Per Ritchie, C. J., .and .Strong, 
 J., that the bill upon its face .alleged no ground 
 
 demurrable. 
 
 accounts between tne parties, 
 should be given for .'$40,00'), the value of the 
 plant, &c., seeking to have the .action remitted 
 to the court below, in order to conclude the trial 
 .and take such evidence as the respondent might 
 adduce in support of his defence, and moved the 
 court to vary the certific ite .accordingly: — Held, 
 that the defendant was bound by the course 
 which he had elected to adopt, and the applica- 
 tion w.as refused, with costs, Macdonald v. 
 Worthinqton etal., 7 A. R. 531. 
 
 Where defendant claims a remedy over against 
 a third party. See The Corporation of the Town 
 of Dumaa v. Oilmour et al., 2 O. R. 463, p. 
 605. 
 
 The plaintiff gave notice of trial for 2nd Oc- 
 tober. On 23rd September the defenilant ob- 
 tained an order to postpone the trial on payment 
 of costs : — Held, a conditional onler not staying 
 the plaintiff's proceedings, and one which the 
 defendant w.is at liNerty to abandon without 
 being li.able to pay other th m the costs of the 
 application. Allen v. Mathers, 9 P. R. 477. — 
 Oalor. 
 
 VII. MlSCELLANEOUS CA.SES. 
 
 Amendment at trial by striking out item from 
 particulars. See DamUon v. The BelleMle ami 
 North Hadimjn R. W. Co., 5 A. R. 315, p. 168. 
 
767 
 
 TRUSTS AND TRUSTEES. 
 
 768 
 
 r 
 c 
 
 3': 
 
 ir 
 
 Observation on the difference between an elec- 1 
 tion triiil and a trial at nisi prius. See Petd Elec- \ 
 tion (Ont.) — Jhirst v. thUlwlm, I H. E. C. 485. I 
 
 Where in 1875, in an action of ejectment the 
 parties agreed in writing that a verdict be en- 
 tered for the plaintiff, but not enforced till de- 1 
 feudnnt be paid $50 for costs and the value of 
 his improvements, said value to be fixed by ar- 
 bitration ; and, though the §50 had not been 
 paid, nor the said value so ascertained, plaintiff 
 entered judgment on the verdict, and ejected 
 the defendant, whose devisee now filed this bill, 
 claiming possession, damages, a reference as to 
 improvements, and an order for payment of the 
 amount found due, and of the §50 for costs : — 
 Held, that though the judgment could not be 
 El t aside, and possession given to plaintiff", the 
 plaintiff was entitled to a reference as prayed, 
 witli costs. Wutnoii v. Ketchum, 2 O. R., Chy. 
 D. 237. 
 
 TROVER. 
 
 In trover for goods against an assignee in 
 insolvency : — Held, follow ing In re Barrett, 5 A. 
 1{. 20(), that the assignee niiiy object to the ab- 
 eence of a bill of sale on an alleged sale by the 
 insolvent just as an execution creditor or subse- 
 quent purchaser for value may do. UnaiT v. 
 .<mi(li, 45 Q. B. I5G. 
 
 The plaintifJ' alleged in one count in trover that 
 the defendant converted to his own use, or 
 wrongfully deprived the plaintiff, &c. : — Held, 
 overruling Bain v. MacKay, 5 P. H. 471, that the 
 count was not embarrassing. Taylor v. Adams, 8 
 I'. II. «().— Dalton, Q. C. 
 
 In an action ot trover or conversion against 
 -pjx-Uant, high sheriff of the county of Cumber- 
 land, K. iS., to recover damages for an alleged 
 conversion by the appellant of certain personal 
 property found in the possession of the execu- 
 tion debtor, but claimed by the respondent, the 
 pleas were a denial of the conversion, no pro- 
 perty in plaintiff, no possession or right of pos- 
 session in plaintiff and justification under a writ 
 of execution against the execution debtor. The 
 learned judge at the trial told tiie jury that he 
 "thought it was incumbent on the defendant to 
 have gone further than merely producing and 
 jiroving his execution, and that if a transfer had 
 taken place to the plaintiff, and the articles 
 taken and sold, defendant should have shewn 
 the judgment on which the execution issued to 
 enable him to justify the taking and enable him 
 to sustain his defence" : — Held, that the sheriff 
 was entitled under his pleas to have it left to the 
 jury to say whether the plaintiff had shewn 
 title or right of possession to the goods in ques- 
 tion, and therefore there was misdirection. Mc- 
 Leiiii V. Jlaiiiwii, 3 ts. C. R. 706. 
 
 Action of trover charging the appellants with 
 converting 250 barrels of mackerel, which were 
 the property of W. !M. R. the respondent's 
 assignor. One of the branches of ap))ellants' 
 business was supplying merchants who were 
 connected with the fishing business in the 
 country, and who in return sent them fish, which 
 was sold and the proceeds placed by appellants 
 to credit of their customers. One S., who so 
 dealt with appellants, in October, 1877, sent 
 
 them 77 barrels of herring and 236 barrels of 
 mackerel. On 3rd November, 1877, S. sold all 
 the fish he had, including those mackerel, to one 
 R. at §8 a barrel, when some were delivered, 
 leaving 236 barrels m the appellants' store, and 
 in payment received §4000 and a promissory note 
 for §4000 at four months. This note was given 
 to appellants by S. on account of his general in- 
 debtedness. On the 4th March, 1878, R. became 
 insolvent, and the respondent who was subse- 
 quently appointed assignee, demanded the 236 
 barrels of mackerel and brought an action to re- 
 cover the same. After issue was joined the 
 appellants proved against the estate of R. on the 
 note and received a dividend on it. The chief 
 justice at the trial gave judgment for §1888, less 
 §46.10 for one month's insurance and six months' 
 storage, and found that the appellants had know- 
 ledge that the fish sued for were included by the 
 insolvent in the statement of his assets, and 
 made no objection thereto known to the assignee 
 or creditors at the meetina : — Held (.Strong, J., 
 dissenting) that the appellants having failed to 
 prove the right of property in themselves, upon 
 which they relied at the trial, the respondent 
 had, as against the appellants, a right to the im- 
 mediate possession of the fish. 2. That vS. had 
 not stored the fish with appellants by w.Ty of 
 security for a debt due by him, and as the appel- 
 lants had knou ledge that the fish sued for were 
 included by the insolvent in the statement of 
 his assets, to which statement they made no ob- 
 jection, but j)roved against the cst.ate for the 
 whole amount of insolvents' note, and received a 
 dividend therecm, they could not now claim, the 
 fish or set u)) a claim for lien thereon. Troop <t 
 (d. v. Hurl, 7 S. C. R. 512. 
 
 See StoMcr v. Spriixjer, 7 A. R. 497, p. 704. 
 
 TRUSTS AXD TRUSTEES. 
 I. XoTicE OF Teu.st, 768. 
 II. Trustees. 
 
 1. AiUHiintment of Trustees, 709. 
 '2. Jjtitkn and Liahilitliis, 709. 
 
 3. Cuiiipinnation and Allowance, 770. 
 
 4. Purchase ur Lease of the Trust PrO' 
 
 pirty 111/ Trustees, 771. 
 
 5. LiabUitij for Acts of Co-Trustee, 772. 
 
 6. O;' Schools— Sec Public Schools. 
 
 7. f Pelhjious Institutions — See Church. 
 
 III. Limitation' of Actions and Suits i.v 
 
 Cases relating to Trusts, 772. 
 
 IV. Miscellaneous Cases, 772. 
 
 V. Impkovem ENTS ON Tru.st PROPERTY— <S'ee 
 
 l.Ml-KOVEMENTS ON LanD. 
 VI. QUALIFIC.VTION OF TUUSTEES AS VOTERS 
 
 See Parliamentary Elections. 
 
 I. Notice of Trust. 
 
 G. W. F., being the patentee of a certain lot 
 described as of 200 acres, but in which there 
 was a deficiency, conveyed half of the lot to J. 
 B. P., who conveyed it to trustees, to hold in 
 
iGS 
 
 7G9 
 
 TRUSTS AND TRUSTEES. 
 
 ■70 
 
 3() barrels of 
 '7, S. sold all 
 ckerel, to one 
 ;ie ilelivei-ed, 
 ts' store, and 
 omissory note 
 ote was given 
 iis general in- 
 78, R. became 
 
 was subse- 
 nded the 236 
 
 1 action to re- 
 is joined the 
 te of 11. on the 
 it. The chief 
 for §1888, less 
 nd six months' 
 nts had know- 
 icluded by the 
 s assets, and 
 to the assignee 
 
 (Stronj;, J., 
 ving failed to 
 imselves, upon 
 he respondent 
 iglit to the im- 
 
 That 8. had 
 its by way of 
 d as the appel- 
 i sued for were 
 i statement of 
 !y made no ob- 
 estate for the 
 and received a 
 now claim, tlie 
 eon. Troop i-l 
 
 497, p. 704. 
 
 rEES. 
 
 '.9, 7C9. 
 709. 
 neance, 770. 
 
 the Trust Pro- 
 
 I. 
 
 lo-Trmtee, 112. 
 
 c Schools. 
 
 s— iSV Church. 
 
 AND Suits in 
 L'rusts, 772. 
 
 72. 
 
 Property— i'ee 
 
 ND. 
 
 rF.Es A.s Voters 
 Elections. 
 
 5T. 
 
 of a certain lot 
 in which there 
 of the lot to J. 
 tees, to hold in 
 
 trust for E. P., wife of G. W. F., upon certain 
 trusts declared in the deed, and witliimt power 
 to her to anticipate. The deficiency was sub- 
 ijcquently discovered and upon tlie :ipi)licatiiiii 
 to the government in the name of tlie trustees 
 by G. W. F., wliom tliey appointed their auent 
 for that purjidse, a grant of land, as C(im])ens:i- 1 In re Tri:li:i 
 tion for the deliciency was made tn the trustees 
 of K. F. describing them as such. Subsecjuently 
 an instrument under seal, expressed to bu made 
 between J. 1>. 1'., of the first part, and E. !•". , 
 wife of G. \V. F. , of tlic second part, and the 
 trustees ol the third part, which recited the facts 
 and also tJiat the trustees had no real interest 
 therein, but were named as grantees merely as 
 lx;ing the legal owners of the original hall lot, 
 was executed l)y J. I!. 1*. and E. F., wliereby 
 they declared tliat tlie parties of the first and 
 second parts were not in any way interested in 
 the lanils granted as comiiensation, and tluit tlie 
 trustees held tliem as trustees for (i. W. F., tlie 
 l)atentee of the original lot. After this tiie trus- 
 tees, by the direction of (J. W. F. ciuiveyeil to 
 E., under wliom the defendants' claimed. K. F. 
 now liniugtit this action to receiver the land : — 
 Held, (Haiiarty, C. J., dissenting) that E. and 
 those eiaiuiing under him nmst be held to have 
 liad notice iif the title of the trustees, wlio were 
 described in the patent as trustees of E. F. : 
 that tiiis land was sul)ject to the trusts of tiio 
 previuus eoiiveyance to them : that K. F. was 
 not est(i[)iKMl by the deelaratidu executed by J. 
 15.1*. and herselt, which did not divest iier of hei' 
 title, and that therefore she was entitled to re- 
 cover :- llehl, also, tliat there sh(udd Ite arefer- 
 encc to the master to take an accdunt of taxes 
 paid and permanent imi)idvenients made upon 
 the lands, furtlier consideration i)eing reserved. 
 Per Haiiarty, ('. .(. The legal estate bein^ in the 
 
 of anticipation nr attempted anticipation:— Held, 
 that the consent of H. and his wife, as teu.ints 
 for life, satislied the condition as to the assent in 
 case of a sale : that H., as tru.stce, was entitled 
 to receive the purchase money, and tliat the pur 
 chaser was not bound to see to its applicati(iii. 
 n iiii'l lliji-iwr, 'IS (.'iiy. l)'J4. 
 
 It having been suggested liy the court that the- 
 ajipointmeiit of H. as trustee, was not one wiiieli 
 the court would have made, the matter again 
 came on for argument, wiu'ii it was — Held, that 
 H. was placed in a position in which his interest 
 as one of tin- parties to the deed upon forfeiture 
 niight conilict with iiis iluty as trustee, and that 
 the court would not have maile and could not 
 sanction his appointment. Ih. 
 
 Ill re Tovoiitii Jlarbinir CuiiiiiiiMionrrn, 2SC'liy. 
 lO."), p. 771 ; III rr Jarrii v. CouL; 29 L'liy. :m, 
 p. 408. 
 
 3. Compensation and AUuwunce. 
 
 What is proper compensation to lie allowed to 
 a trustee for his management of the trust estate 
 is a matter of opinion, and even il, in granting 
 tile allowance, the i;ourt lielow may have erreil 
 on the side of the liberal'ty. that alone is not 
 suflicient grounil for reversing the ju Igment. 
 Where tile master at (lUelph had allowed § 1 2."i, 
 which the court, on ajipual, increased to iS'JoO, 
 this court refused to interfere. MrDouald et 
 al. V. Daeidson, (J A. R. 320. 
 
 Trustees on assiiniing tlu: trust estate are not 
 to be allowed a coianiission for merely taking 
 the same over ; but trustees, properly dealiiu' 
 with the estate, and handing it over on the de- 
 termination of the trust, are entitled to one com- 
 
 defen(;aiit I'.y c<iiiveyance from the trustees, the '"is--;'"". *'<"' the receipt and proper application 
 
 of the estate, payable out ot the corpus. 
 Berkrky'H Trusts, 8 P. K. 193. — Ulake. 
 
 plaintitr .siioiild shew an eijuity to recover what 
 
 she claimed as part of the trust estate, whieh she 
 
 had not done ; that the patent to the trustees, 
 
 thougli describing them as such, did not in terms 
 
 declare any trust respecting this lan<l, and it 
 
 eoulil n " 
 
 trust p 
 
 not with 
 
 ments under a mistake of title, but was governed out of the corpus, lb, 
 
 by the principles of eijuity governing the 
 
 n, 
 
 Trustees are not entitled to a commission for 
 the investment or re-invei^tment of the funds of 
 the estate. They are entitled to a commission 
 
 ' " e 
 
 not be assumed that it formed jiart of the | „u the receipt and payment of the income of tht 
 
 premises. Per Armour, J. The ease was ^ uatate, payable out of the income, and to a com 
 
 ithiii \\. >S. G. c. 95, s. 4, as to improve- neiisatioii for looking after the estate, payable 
 1 .^. :..«-.. I... ..i' ^; 4-1.. i...i. „ ,. 1 ■ ^ .... P. ^ ^ *' 
 
 lationship of trustee and cestui que trust. Per 
 ('ameron, ,J. The case was within the statute. 
 Fvolt V. L'ice et al., 4 O. R., Q. R. D. 9.. 
 
 II. Trustees. 
 
 I. Apjiointment of Trustees. 
 
 See lu re Trelecen and Horner, 28 Chy. 624, 
 p. 770. 
 
 2. Duties and Liabilities. 
 
 L&nil was settled on a trustee, ,1 trust for the 
 nscof H. till marriage, and theu upon other trusts 
 for the husband and wife as tenants for life, and 
 ultimately providing for the issue ; the assent 
 of tha tenant for life was necessary for a sale ; 
 aud there was power in the deed to appoint H. 
 as a trustee on the original trustee refusing, &c., 
 to act. The trustee had an absolute discretion 
 
 '.I'rustces maj' not unreasonably be allowed 
 something for services uot covered by the com- 
 mission awarded. lb. 
 
 The master has power to allow a lump sum to 
 a trustee as his remuneration for the care and 
 management of real estate, but to entitle him to 
 such sum there ought to be evidence to enable 
 the court reasonably to see that the services for 
 which such sum is asked have been rendered, 
 and to make a proper allowance therefor. Where 
 a master fixed a sum, on evidence not sutficiently 
 particular, the case, on appeal, was referred back 
 to him, with leave to the trustee to give proper 
 evidence. The trustee to pay the costs of the 
 a]jpeal and the additional costs in the .naster's 
 office. .Stiiisonv, Stinson,8P. R. 560.- erguson. 
 
 Held, following the ease of the Commissitmers 
 of the Cobourg Town Town Trust, 22 Chy. 377, 
 that the commissioners of the Toronto Harbour 
 were entitled to compensation for their services ; 
 and this whether the harbour beh>iiged to the 
 
 as to forfeiting and applying the estate among or I Dominion or the Provincial Government, as in 
 for the benefit of the parties to the deed in ease [ the event of it being found to belong to the 
 
 49 
 

 TRUSTS AND TRUSTEES. 
 
 772 
 
 C. 
 
 i' ■ 
 
 
 l)o:iiiii:()ii it must lie assuineil tliat tlie Dominion 
 (liivcniiiunt iiitt'iidud tlio cuiniiiissiimiei'-i to l)u 
 siil)juct to tlif l.iw of tlie in'ovince in wliiuh tlie 
 trust was to hu adiuinistiTod. 'J"ht' sum to lie 
 allowed slionlil liesueli as woulil lie a reasoiialile 
 eomp ■! 8 tion for the services rendered, and at 
 tlij same time sueli ii moderate amount as would 
 not lie an inducement to memliers of the eity 
 eouneil. or of the lioird of trade, or others, to 
 seek the oltiee f<ir the sake of the euKilument. 
 'J'iie duties iif the olHce lieing shewn to he not 
 at all onerous, an allowance of $50 a year was 
 named as sutiieicnt to olitain the services of the 
 ri^iit class of men to discharge them. AV T/n' 
 '/'oroiifo /JarliDiir Coiiiiiii^-iioiicrti, -8 (Jhj'. 11),^. 
 
 The rule that a trustee must not have a jier- 
 sonal interest in oonlliot with his dutj' as such 
 trustee, applies as well to puhlie as to private 
 trusts. Therefore, where one of the commis- 
 sioners of a harbour had large landed interests 
 iidjacent to an<l upon one part of it, and was 
 interested iu having that portion of the h:i,rI)our 
 imjiroved, the court (Spragge, C), on directing 
 an allowance to he made to the commissioners 
 for their services, expressly excepted the com- 
 missioner so interested from particip iting there- 
 in, and this although he hid not apidied for anj' 
 comjiensation and iiad at the board of comni's- 
 sioners op|io.sed any such allowance being made. 
 
 See //fn/.',v v. //«(/r.s, 29 Chv. 00, p. 041 ; liftii 
 V. Giford el al. , 8 P. R, 44, p. 734. 
 
 4. Pt(rcli(i«e or Lon^'c of' (lie Ti'uM Pr>pi r/i/ hi/ 
 'J'nf<f<'('t. 
 
 \j. and S. were appointed by the ('<iurt trus- 
 tees for the plaintitf, a married woman, u])on a 
 written consent purporting to ba signed by them 
 agreeing to act. Subse(iuently L. olitainod from 
 the phiintirt'a lease of the trust estate to himself, 
 at wh:it was alleged to lie an inade<piate rental. 
 Some yjars afterwirds. and after the death of 
 her husband, the plaintitf instituted proceedings 
 to have the lease cancelled, alleging as grounds 
 <if relief, inidefpricy of rent, want of ])roper ad- 
 vice by the plaintiff in the execution thereof, and 
 the fiduciary relation towards herself which I/, 
 liid assumed. Under the circumstances the 
 <"ourt (Spragge, ('.,) granted the relief asked, 
 notwithstanding L. swore that he was not aware 
 that he hail been appointed trustee ; that he 
 never signed the consent to act as such, and that 
 his conduct throughout had been bona fide, it 
 l)eing shewTi that he had effected an insurance 
 npon the building situate npon the premises, the 
 apjilication for which he had signed as trustee, 
 and there Iteing reason to believe that ii he l;ad 
 not signed the consent himself he had authorized 
 the husband of the plaintitf to affix his signature 
 thereto ; but gave L. the option of iicce])ting a 
 new lease of the property to be settled by the 
 master ; which decree was atfirnied by the fnll 
 Court on rehearing. Seaton v. Lunney, 27 Chy. 
 169. 
 
 The plaintifiF was mortgagee ot certain lands, 
 and by the will of the mortgagor was devisee 
 thereof in trust to pay certain legacies charged 
 thereon — amongst others one to the defendant, 
 an infant about ten years old. Having instituted 
 proceedings against the defendant tu enforce 
 
 payment of the mortgage, the conduct of the sale 
 was given to the guardian of the infant, and the 
 l)laintitf had liberty to bid at the snle under the 
 decree <as mentioned, 27 Chy. 576 : — HeM, (rever- 
 sing the order then made,) that the liberty to 
 bid accorded the plaintiff, who occupied the two- 
 fold character of mortgagee and trustee, was given 
 lum for the purpose of protecting his interests as 
 mortgagee, but did not absolve him from the 
 duty which, as trustee, he owed to the infant ; 
 and that the conduct of the plaintiff prior to and 
 at and about the sale, as set out in the case, by 
 means of which he had been enabled to make a 
 profit at the expense of the infant cestui (pie trust, 
 was such as would have rendered the sale invalid 
 if the land had remained in his hands ; but as it 
 had passed into those of an innocent purchaser 
 the plaintitf should be charged with the outside 
 selling value of the estate at the time of the sale, 
 or should pay to the defendant the amount due 
 ti) him under the will, with interest thereon from 
 the date of the sale, together with the costs of 
 tlio ("ourt below subseijueut to the petition, and 
 also the costs of appeal. Rkker v. Rkker, 7 A. 
 H. 2!i2. 
 
 Purchase of client's property by solicitor. See 
 KilhoKin V. Aniolil, (i A. It. 158, p. 48. 
 
 See also Principal and Agent VII., 1 p. 648. 
 
 5. Lkih'ilit)/ for Ac(.i of Co-Triintee. 
 
 A testator who, l)y his will, expressed the 
 fullest confidence in C. (one of his trust^'es), 
 directed them to be guided entirely by the 
 judgment of C. as to the sale, disposal, and re- 
 investment of his American securities, and de- 
 cl.ared that his trustees should not be responsi- 
 ble for any loss occasioned thereby. C. having 
 made unauthorized investments of these moneys 
 which proved worthless, the master cliarged his 
 CO trustee B. with the amount thereof : — Held, 
 that even if at the suit of creditors B. might have 
 lieen ch irgeable, yet as against legatees he was 
 exonerated. Biirritt v. BurrUt, 29 Chy. 321. 
 
 III. Limitation of Actions and Suit.s in 
 Casks IlEL.vriNo to Tru.sts. 
 
 Fi-i 
 Cook 
 
 <'riju.:oii V. Fi'niitmn, 28 Chv. 380, p. 435 ; 
 
 i v. Grant, 3-' C. P. 511 p. "437 ; R<' Kirk- 
 
 /tfilrickct al. v. Stcvcmon et al., 3 O. R. .361, p. 
 438 ; Cameron v. Campbell, 7 A. II. 361, p. 439 ; 
 ! Adamstin v. Adamnon, 7 A. R. 592, p. 428. 
 
 IV. Mi.scellaneous Cases. 
 
 I Where the assignee of an insolvent estate trans- 
 ferred the money to the credit of the estate ac- 
 count in a bank to his own private account and 
 then used it for his own private purposes, the 
 bank deriving no benefit from the transfer and it 
 not appearing that the assignee was indebted to 
 the bank : — Held, that the bank was not liable 
 to repay the amount to the estate. Clench v. 
 The ComoUdatfd Bunk of Canada, 31 C. P. 169. 
 
 The ojieration of an ordinary deed of bargain 
 and sale under the Short Fcms Act — R. 8. O. 
 c. 102--conveying lands to trustees considered 
 and acted on. Seaton v. Lunney, 27 Chy. 169. 
 
772 
 
 ct of the sale 
 ant, and the 
 '.e uniltT the 
 Hehl, (rever- 
 ie liberty to 
 
 ied the two- 
 ee, was given 
 s interests as 
 ini from the 
 
 the infant ; 
 f prior to and 
 
 tlie case, by 
 (I to make a 
 tuiiiue trust, 
 B sale invalid 
 ds ; but as it 
 nt i)ur<;hiiser 
 li the outside 
 le of the sale, 
 
 amount due 
 thereon from 
 1 the costs of 
 petition, and 
 
 likkrr, 7 A. 
 
 solicitor. See 
 43. 
 
 /II., 1 p. 648. 
 
 ixpresso<l the 
 his trust^^es), 
 ;irely by the 
 iposal, and re- 
 ■ities, and de- 
 t be responsi- 
 y. C. having 
 these moneys 
 er charged his 
 ereof : — Held, 
 B. might have 
 ijatees he was 
 9 Chy. 321. 
 
 ND SuiTi? IN 
 
 JSTS. 
 
 . 330, p. 435 ; 
 i37 ; H'' Kirk- 
 I O. II. 361. p. 
 II. 361, p. 439; 
 2, p. 428. 
 
 nt estate trans- 
 the estate ac- 
 te account and 
 J purposes, the 
 I transfer and it 
 I'as indebted to 
 was not liable 
 ite. Clench v. 
 (, 31 C. P. 169. 
 
 leed of bargain 
 Act— R. 8. O. 
 
 tees considered 
 27 Chy. 160. 
 
 ■73 
 
 V.ALUATOR. 
 
 774 
 
 Creation of trusts under building contract in 
 favour of sub-contractors. See For/iaii v. La- 
 loiidi', 27 Cliy. 600, p. 419. 
 
 Right of equitable tenant in fee simple to re- 
 conveyance of trust property. See Farrdl v. 
 Camiruii, 29 Chy. 313, p. 319. 
 
 Per Hagarty, C. J. It is the duty of a solici- 
 tor to inform his client, when a trustee, as to the 
 advisability of taking proceedings and incurring 
 costs, when it may become a (juustion whether 
 the costs will have to be paid out of his private 
 funds or out of the trust fund or estate. Bitltcr- 
 Hchl V. IVell.'i, 4 O. R., Q. B. D. 168. 
 
 Misapplication of moneys assessed under drain- 
 age by-law. — Trust created. See Smirli v. 'J'/ie 
 Oorpnraiion of I he Town-ihip of Jialeii/h, 3 0. li. 
 40."), ? . 489. ' j 
 
 Attaching trust moneys. See Lloi/dv. Wallacr, 
 9 1'. R. 3.S5, p. 34. 
 
 Pleading. See McLean v. Bi-uce, 29 Chy. 
 i)07, p. 624. 
 
 Qualifieat'on of trustees ns voters. See South 
 drnirU/c Eliclhm (Out.) Ellis v. Frnsn; 1 H. E. 
 ('. 1()3, p. n2o. 
 
 See also Parr v. Mimt(jnm'>rii, 27 Chy. 021, p. 
 306; Adamsoii v. Adainson, 7 A. II. .")92, p. 428. 
 
 ULTRA VIllKS. 
 
 See CossTrruTioNAi. Law. 
 
 UMPIRE. 
 iSei' Arbitratk)n and .\wahi). 
 
 >'((' FnArii 
 
 UNDUE INFLUENCE. 
 
 AND MlSKlirilKSKNlATtON- 
 MENTVIiV ELKcriOX.S. 
 
 -Par I.I A - 
 
 USAGE. 
 S(?e CcsTo.M AMj Usage. 
 
 USES AND TRUSTS. 
 
 The o eration of an ordinary deed of l)argain 
 and sale under the Siiort Forms Act R. S. O. c. 
 102, conveying lands to trustees considered and 
 acted on. Seaton v. Luinieii, 27 Chy. 169. 
 
 A husband and wife were the parties of the 
 third p-.rt in a conveyance, wherel)y the wife's 
 father diil "grant unto the said jiarty of the 
 third part his heirs and as- „'ns forever," &c., 
 habendum "unto the said j)arty of the third 
 part his heirs and assigns, to and for his and 
 their sole and only use forever" :— Held, that by 
 the operation of the statute of uses, the husband 
 took an estate in fee simple, 7iV Yoanij, 9 P. R. 
 521.— Boyd. 
 
 USURY. 
 
 Sti- Pawni!roki:i!. 
 
 VACATION. 
 
 A master's report itiade during long vacivtion 
 in cdntravention of (i. O. 42.1, is as against a 
 defeiidaiit having no notice of the proceedings 
 on wliich thi' report is founded, entirely null 
 and void. Fuller v. MrI.eaii, 8 P. R. "549.— 
 lioyd. 
 
 Sec Si'-rru-rhjlit v. /,<//.•<, 9 P. R. 200, p. 631. 
 
 VALUATOR. 
 
 The defendant, by a certificate signed by him 
 as reeve of the t(iwnshi[), stated he had jiersonal 
 knowledge of pr(>i)crty belonging to one A. M., 
 and occupied l)y liini, which the defendant be- 
 lieveil to be worth •'?2,000, and would readily sell 
 at a fori.x'd cash sale for $1,600 : that about fif- 
 teen acres were cleared and ready for or under 
 cultivation, &e., setting forth further favourable 
 particulars as to buihlings on the land .and the 
 nature of the soil, all of which proved to be erro- 
 neous. In fact the defendant liad not any per- 
 sonal knowledge of the premises, which were 
 almost worthless : and the particulars as given 
 had been connnunicated to him by A. M. him- 
 self. The defendant was aware that the plain- 
 tiffs wei'e about to advance money by wiiy of 
 h)an on the security of this ])roperty, and had 
 called tor hiscertitieate, l)y which they said they 
 would be guided in making such ad\ance. The 
 c(Uirt, under tiiese circumstances — Meld, the 
 defendant answerable for the loss sustained by 
 the plaintitl's in conse([uence of having acted on 
 his certificate, although no fraud was attribut- 
 able to him, and his services were gratuitous. 
 (lomtn v. Paton, 27 Chy. 48. 
 
 The defendant, who was employed on behalf 
 of tile plaiiititl' to value certain lands, intended 
 to certiiy the value at •'?2,000, but through the 
 fraud of the agent he was induced to certify for 
 $3,000 :— Held, athrming the decree of Blake, 
 V. C, (26 Chy. 390,) that the defendant was not 
 liable for any loss sustaincil by the plaintiQ' : — 
 Helil. also, that the circumstances of this case 
 would not justify the court in reversing the find- 
 ing of the judge of first instance, that the valua- 
 tion was made without fraud or intention to 
 deceive. SUrcrthoni v. Hunter et id., 5 A.R 157. 
 
 Per Burton, .T. A., a valuator is not liable for 
 negligence in making a v.aluation of land, on 
 which a loan is procured, unless it be fraudu- 
 lently made. Ih. 
 
 The paid agent of a loaning society, who pro- 
 fessed to l)e skilled, and had a knowledge in the 
 valuing of lands, was held liable to the societj' 
 for a loss sustained by them by reason of a false 
 report of such agent. Silverthorn e. Hunter, .'t 
 A. R. 157, distinguished. Hamilton Provhknt 
 and Loan Society v. Bell, 29 Chy. 203. 
 
 In order to render the paid valuator of a loan 
 company answerable for a loss caused by exces- 
 sive valuation of property, it is not necessary to 
 
775 
 
 VERDICT. 
 
 77C 
 
 
 •if . 
 
 r*'! 
 '^•< ' 
 
 p: 
 
 
 shew that siicli valuation is made fiaudul'.utly. 
 T/ic CiiKinla Luudid Criidt L'v. v. 'lhuiii,:''( tt 
 al., 8 A. Jl. (i%. 
 
 The ( Viuit l)el(iw (lii-iiiibsed a liill filed to en- 
 force a cliiiia tor diin]iig< s biistaiiiiMl hy an exces- 
 sive valiiati( 11 ol liiiid liy tlie brot'iu and jiaitner 
 of the jiaid valuator duly aiiiointud hy the iilain- 
 tifls, on the ground that it was not shewn that 
 the vahiatidii was made fiaudnlently. 'ihis 
 court, while ditlering Irom sui-h view, declineil 
 to reverse the deeiee and ordered a new tiial, at 
 which the evidence of one 
 ready taken might be i> 
 then being out oi M.e 
 
 the defendiints to \\\j . ,.j ^ , 
 
 the new trial to be unhuut ■ otts in the e<mrt 
 below. 111. 
 
 See Aiiriciiltunil hr 
 Bank; tj A. J!. llfJ, p. 
 27 Chy. 270, p. -JhS). 
 
 the detendants al- 
 Ihe evmt ol his 
 I'vin, but oideieil 
 yii the ai'iieal ; 
 
 ■ Ihii-vJ Co. v. Th< 
 tl8 ; .'■'lerl. 
 
 Fidiral 
 '■rou/.'ii. 
 
 AENDITIOJCI EXPOXAS. 
 
 iS'cc EXKl UTIOX. 
 
 VENDOr.S AM) l'Ui;CIIASEES ACT. 
 
 A testatrix devised to trustees all her estate, 
 real and i)ersonal, which, or a sullicitnt jjortiiin 
 of which, they were to di-sj ose of for jiayment of 
 debts, and the sui>i.oit and education of her two 
 youngest diiughters C. and Al. during their mi- 
 norities, excepting tvo tenements known as the 
 AVestminster property, vhich were to be reserved 
 for the use ol C. and ^1. so long .is they or either 
 of theui should remain unmarried, and in order 
 that C, on attaining '21 and being unmairicd, 
 might in her option oecujiy and enjtiy for her 
 life, so long as she shoukl lie umnarried, one of 
 the houses for her own residence and that of her 
 sister ; and, in the event of her mairiage, the 
 youngest daughter M.w as to have the same option 
 aud choice, the intention of the testatrix "being 
 that in addition to their su}iporl and maintenance 
 out of all of my estate, as devised, my youngest 
 daughters (.'. and M, shall have a home within 
 their control so long as they or either of them 
 shall remain unman led ;'' and upon the marriiige 
 of both C. and M. the whole of suchWestminster 
 property was to be sold, and the proceeds thereof 
 to form part of the residuary estate and be divi- 
 ded amongst all her children, sons ;ind daughters, 
 then living, share and share alike. C and M. 
 attained majority and were unmarried, when all 
 the children, including C. aud M., together with 
 the trustee, joined in a contract to sell the West- 
 miuster propertj'. In answer to a (juestioii sub- 
 mitted to the Court, under the Act (U. S. O. c. 
 109), it was — Held, that all these parties joining 
 in a couveyauce, n gooil title could be maile; and 
 although in applications of this kind the costs 
 are in the discretion of the Judge, the purchaser 
 was ordered to pay the costs. Giiimi v. Durvill, 
 27 Chy. 602. 
 
 Though on a bill filed for specific performance 
 if the infant children untimatcly entitled under 
 the settlement were made parties, the court 
 might order the completion of the sale and pay- 
 meut of the money into court for investment, 
 
 ; where the corjus of the estate would be jiro- 
 tecttd for the children, yet on application under 
 the Vendois and l'urch;;scrs' Act, in the absLiice 
 of the other piirties to the settlcnitnt, it would 
 not comjiel the purchaser to accept the title. 
 In n Tnltnn and llofna; 28 Chy. (J24. 
 
 Held, that a mortgage which contains an 
 acknowledgement of receipt of the mortgage 
 money, liul no covenant for re])ayment of money 
 iloes not of itself afiord conclusive evidence of 
 a debt, so that the mortg.ngee or his assigns can 
 maiiitain an action for its recovery. In this ciise 
 it vas shewn that no money was ever advanced 
 by the mortgagee to defendant, the mortgagor, 
 but that the moitgiige was given for a delit due 
 by defendant to one C, who in consideration of 
 getting it iigreed to relieve defendant from all 
 personal liability; and the plaintifl's, assignees of 
 the mortgage, were held not entitled to recover. 
 (i|u;eie, w hetlier see. 1, sul)-sec. 4, and sec. '1 of 
 the \'eiidors and I'urchasers Act, 1>. S. (). c. 111!), 
 apply to such an action as this, or only to actions 
 where the title to land is in (juestion. Tlic Lun- 
 dvii Loan Co. v. Sniiillt, 32 C. P. 530. 
 
 On a petition under the Vendors' and I'lir- 
 chasers' Act, the (juestion of the existence or the 
 validity of the contract lor sale cannot be tried, 
 but oidy those matters which would be enter- 
 tained upon a leiercnce as to title nmler a decree 
 for specilic performance. The onlj' parties nccc s- 
 sary on such a jictiti(>n are those who would be 
 parties to a .suit for specific )icrfoiniance, and 
 therefore mortgagees who had been joined Mere 
 dismissed with their costs. lit MucSubb, lO. 
 \{. , Chy. D. 94. 
 
 Sendjle, that E. S. O. c, 109 s. 2 is retrospec- 
 tive so as to cast the onus of disproving tlio 
 payment of the consideration on the pai ty im- 
 peaching a conveyance as voluntary even though 
 the transaction took place prior to that enact- 
 ment. tiuiukr.i V. Mulsbuiy, 1 O. K., Chy. 1). 
 17S. 
 
 Held, that on an application under R. S. O. e. 
 101), s. 3, the (piestion of the abandonment ol tiie 
 contract between the parties cannot be raised. 
 Ihndcrson v. Spcnav, 8 P. R. 402 — ISpragge. 
 
 Held, that the Act (R. 8. 0. c. 10!)) was in- 
 tended to iirovide for a simple case where there 
 was no ilispute as to the validity of the contract 
 anil that the court ought not to enter upon the 
 (juestion of the validity of the title, until it was 
 deciiied that the contract was binding. Hender- 
 son V. Hpeneer, 8 P. K. 402, not followed, lii' 
 lioliert^oii aud Jjuijantau, 9 P. R. 288. — Boyd. 
 
 See Re Injlehart ami Gw/nier, 29 Chy.|^418, ]>. 
 95. 
 
 VENUE. 
 
 See Patent of Invention— Pleading. 
 
 VERDICT. 
 
 I. Interest on, 777. 
 
 II. Miscellaneous Casks, 777. 
 
 III. Questions Submitted to and Finding."* 
 BY JuRV. — 6'ec Jury. 
 
( (I 
 
 777 
 
 WAIVER. 
 
 778 
 
 uld be jiro- 
 :atioii uiiiler 
 the absLiife 
 it, it voulil 
 it the title. 
 (i-24. 
 
 Kiiitiiins an 
 
 10 mortgage 
 lit (il nioiiey 
 eviilfciioe of 
 
 1 a^.-'ij.'iis can 
 111 this case 
 
 cr advanced 
 ! nioitgaj;or, 
 r a (lelt due 
 sideratioii of 
 lint fr<pm all 
 
 assignees of 
 d to recover, 
 and see. '2 of 
 
 S. (). e. 10!), 
 Illy to actions 
 u. Tlu' Loll- 
 0. 
 
 irs" and Tur- 
 istcnec or the 
 mot be tried, 
 uld be entcr- 
 inder a decree 
 parties iiccis- 
 wlio \\ould be 
 fomiance, and 
 
 11 joined v\ cie 
 lmya(>l>, 1 <->. 
 
 2 is retrosi'cc- 
 iisiiroving the 
 
 the paity ini- 
 ■y even thouj,li 
 to that enact- 
 ». K., Chy. 1>. 
 
 iler U.S. 0. c. 
 lonnieiit of tiie 
 mot be raiseil. 
 I— Spragge. 
 
 ?. lOi)) was iii- 
 3e where there 
 of the contract 
 enter upon the 
 le, until it was 
 ling. Hender- 
 tollowed. Jii' 
 '288.— Boyd. 
 
 >9 Chy.Z'tlS, l>. 
 
 Pleading. 
 
 m. 
 
 3 AND Finding.^ 
 
 IV. Xew Thial wiikn VKitmcr is AfiAiN.sr 
 KviDKNCF. OH Tin: Wi;i(;iir OK Evi- 
 iiKNtE. — Si'i- New Tkial. 
 
 1. Inti;iu:.st on. ! 
 
 In an uetioii against the sureties of an abscond- 
 ing assignee in iiiS(dveiicy, on the assignees bond 
 to the (jtiiecn under the statute, a verdict was , 
 eiitereil at the trial for !5Si()U, suiiji'ct to a leiral ' 
 question, whiith was afterwards decided in favour 
 of the plaintitr. It was agreed by the parties 
 that ill case of such a decision, the aniount for 
 which tiie Verdict should be entered was .STOO : 
 — Held, that the verdict was not for a debt or 
 Buni certain witliiii U. S. (). c. .")0, s. '2l)!», .and that 
 it should not carry interest from its entry. 
 Woix/niif V. CdiKitld (iiutraiitfc Co., 8 I*. Iv. 532. , 
 — Hagarty. j 
 
 See QiiiiihiH v. Union Fire Ins. Co., 8 A. 11. 
 370, p. 179. 
 
 II. Miscellaneous Case.s. 
 
 The Court refused to quash a conviction under 
 the liijiior license Act, atfirined on appeal, on the 
 grounil among others that the general verdict of 
 guilty was inconsistent with the answers of the 
 jury to spceilic questions. See Ifcyiiiav. Orniinjer, 
 46 Q. B. 38-2, p. 730. 
 
 Verdict subject toopinion of the Court.— Power 
 of Court. See Cnli/hton v. ChiUkkct al., 7 S. 0. 
 R. 348, p. 5(i. 
 
 Commission allowed by jury without .any evi- 
 dence to support finding. See T/ii' Corjiordlioii of 
 the Town of Willand v. Hroini., 4 0. H. 217, p. 27. 
 
 VESSEL. 
 See Ship. 
 
 VESTING ORDER. 
 Sea Sale of Land hv okuer of the Couut. 
 
 VOLUNT A R Y CON V E YANCE. 
 
 Ste FliAUD AND MlSliEPIU':SENTATION — FhAUDU- 
 
 LENT Conveyances. 
 
 A mortgage which had been executed by the 
 defendant 1. reciting that it had been agreed to 
 be given to secure notes held by the phiintift's and 
 containing covenants for title was reformed on 
 parol evidence by substituting for one of the 
 parcels inserted by mistake which did not belong 
 to 1., another lot proved to be his at the time of 
 creating the mortgage, and was the only other 
 lot owned by him. Such a mortgage is not 
 voluntary or without consideration so as to ex- 
 clude reformatiou. Bank of Toronto v. Irwin, 28 
 Chy. 3!»7. 
 
 The absence of a power of revocation from a 
 voluntary settlement is not a ground for setting 
 it aside. Tlie plaintiti, who had just come of 
 
 age, being about to innrry, apjiliod to her solici- 
 tor who was also her guardian, for advice as to 
 her property, and had several consultaticms with 
 him, at wliicli the heads of a marriage settlement 
 were agreed upon. The solicitor did not know 
 the husband, and acted solely in the interests of 
 the plaintitr. Nothing was said about a power 
 of revocation in the settlcinent, \\ liich contained 
 the usual clauses, but gave rather more power 
 than usual to the plaintiti", and was made in con- 
 sideration of marriai,'e :— Held, that it was not a 
 voluntary settleuient ; and that, as it contained 
 the usual clauses in s'lcli deeds, and sim[)ly omit- 
 ted a power of revocation, which is not usual in 
 settlcnients for value, there was no evidence of 
 iiiiprovideiice, or ground for setting it aside, in 
 the alisence of fraud or mistake. IliUock v. But- 
 ton, ^iiCliy. 4'.t0.- 
 
 Held, that 12 Vict. c. 22, s. ?, Ont. {amending 
 the law (>f l)ower) does not apply to a case of 
 voluntary sale bj'a husband. See Culvert v.Bkuk, 
 8 P. R. 255, p. 222. 
 
 See .SdMli'r.i v. MdMinnj, 1 O. R., 178, p. 325. 
 
 voti:rs lists. 
 
 Sen Paulia-MExtarv I'^lections. 
 
 ^VA(^^:s. 
 
 See. Ma.'^stek and Servant. 
 
 WAIVER. 
 I. Of SEcrniTY foh Cost.s— .?('<! Costs. 
 
 II. I'^STOri'EL — ,S'((' EsTOl'l'lCL. 
 
 III. Laches— iSVf Laches. 
 
 IV. Of Conditions in Lnsituance Policies- 
 
 Sct Insukance. 
 
 The obtaining of an order for time to reply 
 waives an objection th.-it no notice to reply was 
 served, and t'kesthe place of such notice. Lock 
 v. Todd, 8 P. R. (JO. -Dalton, Q. C. 
 
 Held, that in this case the defendant was pre- 
 cluded by having accepted service of the writ 
 with knowledge of certain irregularities and de- 
 layed moving after the time tor pleading had 
 expired. Rei/uid v. Stewart, 8 1', R. 297. — Osier. 
 
 Of objection to jurisdiction by application for 
 new trial. See In re Evanx v. Sutton et aC, 8 P. 
 R. 3C7, p. 219. 
 
 Of irregularity in return of commission. See 
 Darlinij V. DarliiKj, 9 P. R. 500, p. 245. 
 
 Of conditions for inspection of grain. See 
 Goodall V. Smith, 40 Q. B. 388, p. 714. 
 
 Of forfeiture by breach of covenant to repair. 
 See Leiijhton v. Medleii, 1 0. R. 207, p. 408. 
 
 Of excessive consignment of goods. See Good- 
 year liuhljer Co. V. Foster, 1 O. R. 242, p. 715. 
 
 Of service of summons. See Reejina v. Bennett^ 
 3 0. R. 45, p. 100. 
 
779 
 
 WATER AND WATER COURSES. 
 
 •80 
 
 tai. . 
 I* 
 
 •t 
 
 r 
 
 ,1 
 
 Where a slicrifT Boizes gomls niidur writH of 
 cxuc'iitioii, and ii iiiortgiigetj l;iys chiiin to tlit'ia 
 uiiilut' !i chiittcl iiMii'tgago, tlu^ tact that hu huIj- 
 ui!(|uuiitly (liri'cts tlic slifiill to sell uiuler the 
 executions, doeH not neccsxaiily amount to u 
 waiver of liis cliiiin under the inortjjage. /Vcr/zi- 
 wurth V. MiikliU Silrif I'hil'oiti ('«. ,3 O. 1{., 
 Chy. D. 413. 
 
 Hy a|)j)earance and plcadiny to aunuiions of 
 justice ol the |ieace. See Ji'n/iiKi v. JJi niurd, 4 
 (>. K. (i03, J). 403. 
 
 WALL. 
 
 Sec ]5ril.lilN(;.s. 
 
 WAKKHOUSEMKN AND WAKKllOUSE 
 
 UECEIITS. 
 
 Set; BiJ.i.s ok L.M>iN(i ani> WAiiKiioisr, ItKciarTS. 
 
 — KaII.WAVS AM) llAllWAV CollJ'AN IK.S. 
 
 WAISHANT I'Olt AJUiEST. 
 
 The prihoner was arrcHted in Toronto, ujion 
 infonnati(jn contained in a tclcgiani from Eng- 
 land, charging him with having committed a 
 felony in that c(juntry, and stating that a war- 
 rant h;id hctn i!>isucd there for his arrest;- Held, 
 that a jicrson cannot, under the Imjicrial Act, (i 
 & 7 \ let. c. 34, legally he ai rested (jr detained 
 liere for an otUncc con.mitted out of Canada, un- 
 less ujioii a wai rant issued m here the oll'ence was 
 eoininittid, and endorsed hy a judge ol a su] erior 
 court in this country. Such wariunt must dis- 
 close a fehiuy according Ut the law of this coun- 
 try, and Smdile, that the exiiression "felony, 
 to wit, larceny," is insullicient. The iirisoner 
 was tlierefoie discharged. A'l (/ina v. jVcJIoliiic, 
 8 P. K. 452.- Cameron. 
 
 See L'cid v. Moyhiv, 31 C. 1'. 384, p. 404; 7tV- 
 tjina V. JitrnanI, 4 O. K. (103, p. 403. 
 
 WARliAKTY. 
 t>i'<' In.sluanc'k. 
 
 The defentlants bought a vessel fnjni the plain- 
 tifiF, who, as the jury found, warranted her to 
 class Ji. ], and promised to get her insured in a 
 coinpaiiy, of wliieh he was agent, for .si ,400. She 
 would not class as U. 1, an<l no insurance could be 
 effected under that class ; but def' nlants sailed 
 her uninsured until she fcjundeied and was totally 
 lost. In an action for the purchase money : — 
 Held, that the measure of damages to which de- 
 fendants w ere entitled for breach of the warranty 
 was not the !*1,400 for which she might liave 
 been insured, but the sum vhich it would have 
 taken to make her class B. 1, which it was for 
 defendants to shew. A moitgage was executed 
 to secure the purchase money , and registered m ith 
 the Customs, and annexed to it was an instru- 
 ment under seal, executed by defendants, reciting 
 the mortgage, and that the teims of payment were 
 
 set forth therein for convenience of registry, and 
 " this indenture is executed for the purpose of 
 evidencing the true agiccnicnt ))etwtan the par- 
 ties, which is hercinalter stated." 'J'he terms of 
 payment were then stated, dillering from those 
 in the registered .m(<rtgage ; and deiendants co- 
 venanted to insure the vessel for SI, 400, and 
 assign the ])olicy to plaintitl'. 'I'he alleged war- 
 ranty was verbal, anil was not made out at the 
 time of e.\ecuting the writings, but defendants 
 swore tliat they woidd not have bought without 
 the warranty, and wt)uhl not otherwise have 
 given over one-third of the price for a vissel 
 which could not be insured :-- Held, that evi- 
 dence of the verbal warranty was admissildo : 
 that it did not vaiy or alter the writings; and 
 that the declaration that the instrument was 
 made to evidence the true agreement refened 
 merely to the terms of jiavnieiit. LaJtucIn v. 
 O'JIiiHiiii ,t (il., 1 (). ]{., Q.']i. i). 300. 
 
 The plaintiff sued the defendant, a piano nui- 
 ker, for breach of a warranty given by his sales- 
 man on the sale of a piano, that the instrument 
 w as then sound and in good order, 'I he plaintitl 
 signed the ordinary receipt note, which is set out 
 in the report, jiroviding tor payment of the price, 
 and that until paid the property should reniaiu 
 in defendant, in which there was no mention of 
 the warranty : — Held, that parol evidence of the 
 warranty was admissible, as it was apparent that 
 the receipt note was not intended to be the evi- 
 dence of the whole contract, (Juare, whether 
 this (piestion shouid ncjt have been left to the 
 jury. Hejd, also, that the salesman had author- 
 ity to give the warranty. Quaere, whether any 
 evidence of an exjiress warranty was neces.'^ary. 
 Held, also, that the ]iroper measure of damages 
 to allow was the juice which iit the tlu tin.e of 
 .•iale would have be»n reciuired to remove the al- 
 leged defect, and the jury having given much 
 nn re, the court n.injed a sum to which the jilain- 
 till' nnght reduce his verdict, or that there «ilu)i'!d 
 be a new trial. McMullin v. Wi/liavta, 5 A. 
 l!.r)18. 
 
 Covenant to " warrant and defend" in assign- 
 ment of ])atent right. See O'retii it ul. v. Wutnoti, 
 2 O. 1!. (i27, p. 587. 
 
 l?y tlie Eanking Act .34 Vict. c. 5, D., banks 
 were prohibited tnini buying and selling goods or 
 merchandize: — Held, therefore that an action 
 woidd not lie against an incorporated bank for 
 breacli of wairanty on the sale of a horse-power 
 machine, liodford v. The Mervhtmtn Bank, 3 (). 
 K., C. P. D. 529. 
 
 On sale of tim1)cr limits. See Ducondu v. 
 DiijKiy, S) App. Cas. \M), p. 758. 
 
 WASTE. 
 
 Impeachment of tenant for life for waste. See 
 C/o«> V. Cluw, 4 O. K. 355, p. 799. 
 
 WATER AND WATER COURSES. 
 
 I. AccJiETION, 781. 
 
 *ll. FOKMING B0UNDAIUE.S, 781. 
 
 111. RkjHTS and LlAlllLITIES Of RlPARIAN 
 PKOl-llIb'lOKS. 782. 
 
780 
 
 registry, and 
 10 puiljoni; of 
 wccii tlu' par- 
 
 'J'liu teiiiis of 
 ig Iroiii tlidso 
 uluiidaiitH cu- 
 • SI, 400, and 
 : alleged wiir- 
 ile out at the 
 it (lefelidaiitH 
 
 lUgllt WlllldUt 
 
 LerwiKu have 
 for a vixiol 
 t;ld, tliat evi- 
 ls ndiiiisuililu : 
 writings ; and 
 stniiiiuiit uas 
 mciit referred 
 
 IjtlJiOclll V. 
 
 ;!U0. 
 
 t, a i)iano ma- 
 ij lij his siiU'B- 
 iic iiistrunu'iit 
 'J he ijhiiiitill 
 'hieh is set out 
 lit of the \)iice, 
 bhouhl reinaiu 
 no mention of 
 jvidenee of the 
 
 ni>}iarent that 
 to he the ivi- 
 uare, whutlier 
 en left to the 
 an had author- 
 , whether any 
 was neeessary. 
 
 e of dainages 
 tlie tho tinio of 
 rtnvive the al- 
 i)g jjiven nnuh 
 vhieh tlie jilain- 
 lat there «ilioi'!d 
 yViltiums, 5 A. 
 
 end " iu assign- 
 (t III. V. Watsiiv, 
 
 c. 5, D., banks 
 selling gocids or 
 that an action 
 (rated hank for 
 f a horse-iower 
 [dul.t Hank, 3 0. 
 
 ce Ducondu v. 
 
 1 for waste. Sue 
 
 ;0U11SES. 
 81. 
 
 a OS ItlPAKIAN 
 
 '81 
 
 WATER AND WATER COURSKS. 
 
 782 
 
 IV. Fi.(i.vriN(! TiMunu, 78'J. \ 
 
 V. hlAlllMTY OK Monk II'ALITIKS KOK IN- 
 .IIIIIVCAI SKI) ItV IJ1(A1N.SAN1).Sk\VK.K.S, 
 
 7H8. 
 VI. DlTCHKS AND Watkucour.sks A(T, 785. 
 VM. A.SSKSSMKNT KOK DuAiNAon, 785. 
 VIII. Dhainaok By i.aw.s — iSV/ MiNicirAi. 
 
 tldKI-OKATIONS. 
 
 I.X. BuiiKiK.s ovKii RiVKH.s— .SVe Way. 
 •X. IIauiuiukh — See IlAKiiorR. 
 
 1. ACCHKTIOX. 
 
 IJy lOCIeo. IV., c. 11, the Cohourg Harhour 
 Conijiany were aiitliori/eil to eonstiuet a har- 
 bour at ('ohdiirg, and also to build and ereet all 
 such needful moles, piers, wharves, iiuiidings 
 and ereetions whatsoever, as should be iisulul 
 and proper for the protei^tion of tlu! harhour, 
 and to alter and aii" ! repair and enlarge the 
 same as ndght be .ound expedient. The har- 
 bour eonijiany eoninieneed their work in Ib'iO 
 by running a wharf southerly from the road 
 allowance, hutwetn lots Ifi and 17 of the town- 
 sliip of Hamilton, Mhieh now forms JJivision 
 Street in the town of t'ohourg. I>y mean.s of the 
 mud and earth raised by dredging and gra<lual 
 aecretions, whieh were pievented fnjm being 
 washed away by being eonlined by erib-work, 
 the original wharf was widened to the full widtli 
 of Division Street, and in addition they eon 
 strueted a storehouse and placed a fence divid- 
 ing it from the land which appellant (whose lot 
 fronted on Division street, and extended to the 
 waters' edge,) had gained by jieeretion since the 
 addition to the original wharf was made, '('here- 
 upon the a])pellaht tiled a bill conijilaining that 
 his fiecess to this alluviid land was oiistruuted by 
 the st rehouse and fence whieh tlie resjiondcnts 
 c.iused to bo placed on the addition to the whaif 
 and jiriiying that the respondents, other than 
 the attorney-general, be ihcreed to remove 
 thorn : — Held, I. Tliat land gained by alluvial 
 deposits arising from natural or artilicial causes 
 nr from causes in part natural and in part artili- 
 cial, so long as the tact is proved that the accre- 
 tion was gradual and imperceptible, accrues to 
 the owner of the adjacent land. 'J. That the 
 storehiuis'j and fence complained of in this cj'.so 
 were not constructed on any part of Division 
 Street, but on an artitieial structure constructed 
 under the authority of a s-tatute on the lino of 
 Division Street for harbour pnrpo.ses, and, theie- 
 fore, appellant was not entitled to be indemni- 
 fied because he was denied access to his alluvial 
 land through the premises of the respondents. 
 X That the public right of way from the end of 
 Division Street to the waters of Lake Out irio, 
 was extinguished by statute by necessary impli- 
 cation, (.'orporation of Yarmouth r. .Simmons, 
 L. K. 10 I'll. D. 518, followed. Slaiidhi el <il. 
 V. I'mij It III., 3 S. C. K. 3o(J; 2 A. U. i<»5. 
 
 II. FOKMINO B0UN1)AKIE.><. 
 
 River I{i<leau boundary between townships of 
 Gloucester and Nepean and the city of Ottawa. 
 See licqiiui V. The <,\>rporiilioii of the ( \iunly of 
 CarUto'ii, 1 O. K. 277, p. 792. 
 
 See McArthur v. GiUie», 29 Chy. 223, p. 78l>. 
 
 HI. IJlliltTSANI) I.IAMII.'.TII--; 
 I'KOPHIKTOHH. 
 
 OK ItH'AniAN 
 
 Under a conveyance of land, on a stream not 
 navigable, described as running from, &c., 
 " south, ite., to the northern side of the * " 
 river, * " then north-easterly along tlie 
 bank of the said river, with tiie stream to the 
 centre of tlu! said lot " : -.Senilih', that tliegranteo 
 was bound by the bank of the river, au'l had not 
 any right to extend the iiouudaries to and along 
 the nnildle or thread of the stream : but, llehl, 
 whether he had or had not sn>;li right, he could 
 not by reason thereof ereet any strintiire in the 
 stream that could or might atlcc't ])reiudicially 
 the How of the water as regards other riiiarian 
 jiroprietors. MrArtliiM' v. (lilliiK, 29 Chy. 223. 
 
 The patent from the crown of a lot of land 
 situate on the hank of a river, reserved free 
 access to the bank for all peiKins, \tssels, dtc. 
 There was a ipiantity of stone on the lot, which 
 the plaintili (lesired to (piarry, but was prevented 
 by the penning hack of the water ot the river by 
 the defendant, the owner of a mill theicon below 
 the plaiiitill "s land :— Held, that the reservation 
 by the crown in the grant was merely an ease- 
 ment to the public, notwithstaniling whieh the 
 plaintitl' was a ii[)arian pnjprietor, ami as such 
 I entitled to complain of the injury eauseil l)y the 
 I iienningbaek of the water. The parties desircil 
 I the assistance of scieiititie evidence as to the 
 height of the defendant's dam and the ell'ect of 
 raising it. The court (I'i'oudfoot, ■!.) appointed 
 I an engineer to inspect and report thereon, re- 
 I serving the costs until his rejiort sliould be 
 ! obtained. lliiivkiiiK v. Miiliniri/, 29 Chy. 320. 
 
 I A riparian proiirietor has not the absidute 
 ' right to the natural and unobstructiMl How of 
 I the water of a stream over his lands, i)ut his 
 right is a (pialitied ouv, and subje(;t to the law- 
 ful and reasoualile user of the waters by a mill- 
 owner above him on the sann; stream, and this 
 although the user aliove liiin may be at times for 
 an extraorilinary purjio.se. l)irkxiiu v. Cdrni'i/it', 
 ^ 1 O. 11., Chy. D. 1 10. 
 
 I Obstructing How of water to mill. See T/n' 
 i .Wiidokit Mill Co. V. T/ii; (Jiu'eii, 28 (;liy. 5(i3, p. 
 
 ')9(;. 
 
 In granted and ungrantcd lamls. 
 V. Ilobirtxoii, (i S. C'. It. 52, p. 123. 
 
 See Reij'mii 
 
 IV. Fl.OATINC TlMUKK. 
 
 The plaintilf, who claimed the exclusive uses 
 of certain streams flowing through his lands, 
 which right the defendants denied, obtained an 
 interlocutory injunction restraining the defen- 
 dants from using his iin))rovements tluu'con for 
 Ihiating down their logs ajion tho usual under- 
 taking to pay any damages sustained thereby: — 
 Held, reversing the onlcr of I'roudfoot, V. C 
 (Armour, J., dissenting) that the plaintiil' was 
 not entitled to an interlocutory injunction, as it 
 was not shewn that irremediable damage would 
 result from refusing it, or that the hahmce of in- 
 convenience was in his favour. McLaren v. 
 Ciihlwi'll et III., 5 A. I{. 303. 
 
 The plaintitf, a himberman, was the owner iu 
 fee simple of several parcels of land and large 
 tracts of timber. A stream, on parts of the bed 
 of which he had the fee simple, ran through his 
 
7s;5 
 
 WATRR AND WATKK COURSES. 
 
 784 
 
 (/ 
 
 
 I;iii'ln, wlii -li ill it< iKitiii-.il Mtiif''. Iiiiil not (lir 
 (•a|iii''il V liir tlniiHii;; tiiiilirr ;it .-luy f.iiiir cif tlic 
 yi'iir. Tlir |il;iiiifiir unci tlinHc tlii()ii;^li wlicnn In' 
 I'l.iiniril fi]iciit hir;,"^ kuiih of nniney in ni ikin;,' 
 iiii|ii'ivciii(iils ii|ioii tlir stiiMin .■iiid in clc('|Hiiinj^ 
 it, .111(1 llni'liy niiUiiiL' it lloat ililc. Tlic dulcn- 
 • liints, w ho owiinl till- tinilii r limits in tlic in'ii;li- 
 lion rill loi I, cliiiniccl tin' iiy;lit to lloiit tlicir tinilicr 
 down till' stn 11 Ml : Meld, irViTsiiii^ the iiid;4nii'nt 
 of I'loudfoot, \'.('., (IJllltoii, .I.A., dinsi'iitill.,'!, 
 that till' stirain \\as :i |iiililio w.itcrw-iy liy viitm,' 
 of ('. S. l". ('. i:. IS, s. I,-., Nvliii'li liy"ils ti'inis, 
 ftpjiliiH to , ill ■itrciiin.-', wlicthcrof n.itiir.d ('.iiiai'ity 
 to iicniiit tinilii'i' to lie lloati'd doM ii tlniii or not ; 
 anil tint the dcfi'lidaiit liad tlic lii,'lit to lloat 
 tinilur down the s inic stfiain dniiiiK tlii' s|iiiii;,f, 
 siininKT, and aMtiiimi frcslicts, witlioiit roni|iiii- 
 Biifion to the ]ilaiiititr. '['\n: apfwal was allowed 
 vitliont cost.s, as till! ini|inivtni('nts had lircn 
 liiailf and the hill tiled, relying' on the authority 
 of Hoalc I', hicksoii, |,'{ ( '. 1'. :t.'t7, which was 
 jiroiKily followed liy the Icarmd \'.('., Imtwas 
 (ivcrnilcd hy this court. iVr 15niton, .I.A. — Uy 
 tlio coininon l.iw those striain.'^ "idy wliiidi are 
 DUtHcicntly l:ir;.'(' to lloat lioats or tiMiis|iort prop 
 erty ar; highways hy w.itcr, and not small strcann 
 which arc not Hiiscc|itilili; for nsi' as a common 
 pasRigc 'or till' [mlilic, 'I'hc statute was not in- 
 tended to confer ai.y new right, hut to rcinovii 
 all douht IS to the right of hiinlierers to use all 
 Btrcains cqiihlc, in their natural st.te, of traiis- 
 jiorting tiiiilier. e\en althcuigh only in times of 
 freshets. .V. <:., t\ A.li. -liVl.' ' ] 
 
 Held, tli.it the riulit uonfcir.'d to lIo.it tinilior 
 iirnl lugs ill, iMi srrc.inis liy Cinadian .Statute 12 
 A'iit. e. .S7, s. ,'), is not limited to such streams 
 fts in their natural state, without improvenients, 
 (luring freshets, iiermit said log-, timlior, itc, to 
 he llo.itiil down tlirni, hut extends to tlie user 
 without coinpensatinn of all iniiiroveiiients upon ' 
 such stnanis, even when such streain.s liave heen ' 
 rendered lloat;dile thci-ehy. Ho.ilc r. Dickson, ' 
 l',\ C. I'. XM, (ivciruleil. Such right is only con- 
 ferred hy the statute during freshets; (pia'ic as; 
 to the rights at other seasons of the year of the 
 parties, that is, of the himherers on the one side, 
 and the owners ol the imiirovemcnts and the hed 
 of the streain whereon they have heen etl'eeteil (in 
 the other, .s. ('. ,/<iili-iioiii. — CiiJi/iri /I \\ Mrl^nrin, 
 J) Ajip. ('as. 'M'l. .ludgment of Supreme Court, 
 8 S. C. Jt. ■\'^7^, reversed. 
 
 [See 47 \'iet. c. 17, Ont] 
 
 V. LlAHII.ITV 111'" MlNIiirALITII'IS KOR InJURV 
 C.USKD IIY iJliAlN.S AM) SkWERS. 
 
 To a declaration charging negligence in the 
 construction and maintenance of drains, in order 
 to drain the streets of a town, whcrehy the 
 drains were choked and the sewage matter over- 
 flowed into plaintilFs premises, defendants plead- 
 ed that the cause of action did not accrue within 
 three months: — Field, liad, .-is sec. 4!(1 of the 
 Municipal Act (R S. O. c. 174) did not apply. 
 SitU'wtni V. 'Hip Corpunilioil oj l/tf. Tuirii of Bar- 
 Tie, 45 Q. li. 12. 
 
 The pl.iintifr leased premises .it the corner of 
 Queen iind Hathurst Streets, which rai at right 
 angles to each other, in Toronto. 'J'liere was a 
 main sewer on Queen Street, with whieh plain- 
 
 t'lrs priv.ite (Ir.iin, eonstrnotod hy the defend- 
 iints at the e,x]iense of the pl.iintilVs lessor, con- 
 nected, and wliiidi had heen extended «estwanl. 
 Tli'ie w.is therein, atorahoiit i'orH.ind Street, a 
 Will, s.iid to he for the purpose of dividing the 
 Water and causing it to How eastwaid and west- 
 ward. There was a sower on Bitliiirst .Stri'et, 
 south of (j)iieen .Street. Suhseqiiently, and .ihout 
 lour years liefore the action, a sewer was con- 
 stincted on 15,'ithurst .Street, north of (,>ueen 
 Street. Into this sewer a ercck was turned, in 
 which at times the water was .ix feet dee]) ; and 
 I nunilier of cross streets dr.iined thereinto. 
 Within the four years helore action, liut never 
 helore, the plaintiirs eell.ir had heen Hooded 
 seveiiil times, and the ciuse of this .letion was 
 the Hooding during a steady rain of eight or nine 
 hours duration. The plaintill' alleged originallj' 
 deleetive construction of sewers, and riegligcniu' 
 in not ie|iairing, but simply proved the tlooding 
 and the ahove facts, and the jury found ii ver- 
 dict tor him. A new trial was directed, .Armour, 
 .1 , dissenting. Per If.igarty, ('. ,J., ami ( 'anieron, 
 .1. The mere proof of the Hooding did not es- 
 t.ihlish a prima facie case of neglige' ee .'igainst 
 the defeiid.ints ; a specific ground of negligence 
 ninst he })roveil, and there was no Hiillieicnt evi- 
 dence ol position, coinieetioii, (^•lp,■ll'ity, .ind levels 
 of the sewers on Queen and liathnrst .Streets. 
 I'er < '.•iineron, ,J. Keiiiarks as to the dillerence 
 in the li.'ihility of, or injuries caused hy sewers 
 and hy liigliM.iys. I'er ,'\rmour, .1. The fact of 
 
 I the Hooding of sewers constructed, controlled and 
 ni.'in.igcd l>y the defemlants, was piinii facie evi- 
 dence of negligence ; hut the fact that no Hood- 
 ing had occurred hefore the eonatruetioii of the 
 H.ithiirst Street sewer north of (^neeii Street, 
 coupled with the other evidence, was sntiieient to 
 shew prima f.ieie that that sewer lirought down 
 more water than the Queen Street sewer, and 
 
 : liathurst Street sewer, south of (Jueen .Street, 
 were capable of carrying away raiiidly enough, 
 
 ' and that the ))laintil}' was entitled to recover. 
 
 . A'ci'-/(' V. T/ir Vity of Toronto, 40 Q. H. .51 9. 
 
 ! The (lefend.'ints in 18f55 passed a by-law for the 
 j construction of a drain which went through the 
 ])laintiirs land, and for assessing certain lands, 
 including the plaintitT's, therefor. The drain was 
 commenced in I8!i(j and coin])leteil. In 1873 
 they iiassed another by-law for widening and 
 deepening this drain, whieh was accordingly 
 done. In 1881, they constructed another drain 
 running into the first below the plaintiff's laud. 
 The first drain having become out of I'ejiair and 
 choked up, the plaintiff 's lands were to some ex- 
 tent flooded in the s])ring and autumn, and the 
 water lay longer than if the drain had been kept 
 projierly clear : — Held, aflirming the judgment of 
 llagarty, C. J., (Cameron, J., dissenting,) that 
 j the ]ilaintifr was entitled to recover against the 
 I defendants for their breach of duty iu not keep- 
 j ing the drain in repair, under K. .S. (). c. 174, a. 
 ! 543. and that a niandatnus should issue to com- 
 ' pel the defendants to make the necessary rej)airs. 
 i I'er C.-inieron, J. An action is expressly given 
 I hy s. tA'l for injury done by such neglect, where 
 I the drain serves two municipHlities ; but in a case 
 I like the present, though uniler s. 543 the muuici- 
 I pality may be compelled by mandamus to. rejtair 
 I the dniin at the expense of the lands benefited, 
 ! no action lies for injury caused by non-repair. 
 I Wh'de V. ('or/xiratiou of the Township oj Got- 
 Jitld, 2 0. R., Q. B. D. 287. 
 

 784 
 
 till! clclViul- 
 s lossKi', emi- 
 ■il «cstvv;iril. 
 ;iiiil Sti't'iit, ii 
 ilivicliii^' the 
 
 111 Mini Wl'st- 
 
 liiirxt Sti'iM't, 
 ly, Mini altiiut 
 VlT WMS con- 
 i\\ (if <,)iK!('ii 
 iH tiiriii'il, in 
 ■I't ilci]i ; and 
 mI tlnri'iiitd. 
 II, liiit iii'vcr 
 
 illH'll IlllOlU'll 
 
 iH .•iclinii was 
 
 lij^'lit IIP nine 
 
 M,.,l miMiiiMlly 
 
 ml iii'j,'li,ni'n(H' 
 
 1 till- llniiililig 
 
 fiiuiiil ii ver- 
 •tcil, Ariiimir, 
 mil ( 'MiiuM'on, 
 c,' iliil not OH- 
 L'l!' CI! Mgiiinut 
 ipf in'^'lij,'i!nci! 
 Hiilliiii'iit evi- 
 ity, Mini Uivols 
 liiirst Slrt'iitH. 
 till' ilitl'iTi'iioe 
 
 <(m1 l)y SUWCMH 
 
 I. 'I'iic factof 
 riintrollinl anil 
 iriiii I f.K'io evi- 
 tli it in) llood- 
 nictiiiii of thu 
 (iiici'ii Street, 
 'ii8 snti'n;iiMit to 
 l)rou<,'lit down 
 let suwer, and 
 (Jiio.'ii Street, 
 ajtidly enou},'li, 
 ed to ri'eover. 
 Q. Ii. .'>!!). 
 
 I by-law for the 
 it thioiigli the 
 
 certain laiidH, 
 
 The drain was 
 ;tud. In 1873 
 
 widening and 
 la accordingly 
 
 another drain 
 plaintiff's land. 
 t of re) pair and 
 ere to some ex- 
 .itnnin, and the 
 1 had been kept 
 he jndgiiient of 
 iHseiiting,) that 
 I'er against the 
 ty iu not keep- 
 S. (). c. 174, 8. 
 Id issue to coin- 
 eessary repairs, 
 jxpressly given 
 I neglect, where 
 is ; but in a ciise 
 .TIS theinunici- 
 idainna to. repair 
 aiids benefited, 
 
 by non-repair. 
 witship Of Oos- 
 
 785 
 
 W.W. 
 
 WlnM'e a MiiiniiipMlity, acting iiinlcf tin; Out i- 
 rio DraiiiMgii Ai-t, in |iiiisiiiiifo of ,i srliciiiH for 
 the drainage of tln^ir township, enimtrin'tcil a 
 systiMii by which water was driiiicd oil' into a 
 certain drain fonncrly coiistrin'tcil tlinnigh the 
 ])livintill''s land and niiiniii.^ into a natural creek, 
 wheri^Uy the creek, by reason of the aceuMinla- 
 tiori of w iter caused by the new diaiiis, llniii,i|| 
 Hiitliciiiit hefoie, to eariy oil' the water brouv'ht 
 down into it, oyerllowed and iiiinred the jilaiii- 
 tiir's land : -Hell, tint the difendaiits were I a- 
 ble for any daiinge thus caused to the plai: il', 
 Ulid there w is nothing in the iiiiliiiei|ri,l or otlicr 
 I(!gisl itioii of this province to change the ille^' d 
 cli iracter of such ail act. It alipeared, however, 
 that the pi uiiljir's property hd Iicimi heiielited 
 by the ilr linage works as a whole to a greater 
 extent llriit it had been injured by the ovciliow 
 eoinjil liii d of, and the defendants acceded to 
 the rea-ion ildciieMs of the plaintill's deinand for 
 a better outlet, and were iiroeei'diiig i ui iki' it : - 
 Held, that ninler these circiinistances it waBsnlfl- 
 cieiit lor the prcsi'iit to declari) the plaintill' en- 
 titled to h ive the creek widened and deepened 
 to the iieee-c<arv extent within a re ison ibli' time. 
 Ni)rtlni'ii:iil V. Tlif ('iir/iiirnHiiii i if the Tinviiship nf 
 Jtulchjii, :{(». I{., (Jhy. 1). :U7. ' 
 
 V. Onsrnr'iTiifN' 
 Ways. 
 
 780 
 
 Prill. re AND Pkitatk 
 
 VI. DiTciiKs .\Ni) W.\Ti;ii Coriisr.s Act. 
 
 Held, that the defendants a railway company, 
 were not subject to the provisions of " The 
 Hitches lud Water Courses Ai't," II. S. (). c. 
 !!»!>. .l/;7</- V. a, ■and Trunk Hail way Co., 4") 
 Q. B. 2'_'1.'. 
 
 \\\. AssKssMKsr I'oK nitAi\.\riK. 
 
 See MfLfini v. 'J'lic Cor/ioralion of fin' Triinii- 
 v/iip ../■ O/H, 4.5 Q. Ii. .'{•2'», p. 48S ; fii n; lir„rh 
 V. rill' ('iir/)()ratii)ii nf the C'ili/ of Toronto, 45 Q. 
 B. iia, p. 490. 
 
 WAY. 
 I. Creation- of Highways. 
 
 1. Dcdh-alion, 78G. 
 
 2. Private Way. 
 
 (a) By Grant or Necessity, 786. 
 
 II. PoWKItS AM) DUTIES OF MlNICirAI, 
 CoiiroUATION.S. 
 
 1. Opening lioails, 788. 
 
 2. ('losimj Hoads, 788. 
 
 3. Fi'nrimj Ditches, 788. 
 
 4. Jic/iairimj Hoads. — .SVe IV., p. 790. 
 
 5. Itaihuays on Streets— See Railway.s 
 
 .VND HaILWAY Ci)MPAN'IE.S. 
 
 III. lloAU C0.MPANIE.S, 789. 
 
 IV. Repaikino. 
 
 1. A/ipropriatint/ Material, 790. 
 
 2. Liahility of Municipality Jor Negli- 
 
 ijence, 790. 
 
 3. Liahility of Railinmi Companies- See 
 
 Railways and Rvii.way Com- 
 
 PANIEiS, 
 
 50 
 
 1, t.'crralli/, 790. 
 
 2. //// Rail u-ays— -See Rmi.WAY.S ANI) 
 I! Ml. WW CoMPWIIN. 
 
 VI. SinnwAi.K.s "111. 
 
 VII, liullMlKS. 
 
 I 1. (l.'uc-iitly, 791. 
 
 I 2. Itpiii-in:i -Src IV. p. 790. 
 
 I 3. /iijiiwtion with respect to — See. Injdno 
 
 I'lov. 
 
 VIII. Tolls, 792. 
 
 I.X. Tiii:i;s, 79;!. 
 
 X. TiiwrioN lvN(n\i:s, 79:i. 
 
 ! .\I. (,<i;i:;ii;r Ti liNi'iKi; Tufsr, 79.1. 
 
 1. CllKATION OF HkjIIWAYS. 
 
 1. Dedication. 
 
 The corporation of Kast Whitby by by-law 
 dos 'd lip an old travelled mad, whereby the 
 applicant was shut out from ingress to his lands 
 except liy a short road leading to the original 
 road allowance, which was now for the first time 
 opened. For soiiH! years prior to I.S44 the short 
 road was used as a priv.ite road for the ooiive- 
 nieiice of persons going to F.'s place, mills, brew- 
 ery, and distillery. In ISU F. conveyed the 
 land on eich side of it to his sou and son-iu-luw, 
 but no miMition of it w.is mad'! in the ilceds. Tho 
 wife of the purchaser from the sonin-law, while 
 s|)c iking to V. at one time about the title, as to 
 udiicli some dispute arose, coinplaiiied that the 
 old travelled mad might be cIos.mI up. V. re- 
 plied that they would still have the short rojid 
 leading to the roa'l allowance, which would still 
 bo opened if the old trivclleil road were closed : 
 — Held, that the latter statemeit, in comiection 
 with the facts of the former ns' ■ ■ ' the road, and 
 of its not having been disposed o. >. ii :a F.dispiwjd 
 of the lands on each side thereof, sutiiciontly 
 shewed the intention to dedicate the short road 
 to the public ; that the applicant had therefore 
 another convenient way to his laiids.aud that the 
 by-law should not be (piashed ; but, uinler the 
 circumstances, no costs were given. Adams 
 and the Ctirpiiralinn iil' the Toioiiship of J'Jiist 
 Whithy, 20. H., Q. B. 1). 47;i. 
 
 See liae v. Ti-iin, 27 Chy. 374. p. 200 ; In re 
 
 Morton and the Corporation of the City of St. 
 Thomas, A. R. 323, p. 200. 
 
 2. I'rirate Way. 
 (a) /{y Gi'anl or N^eeessity. 
 
 Where C. , by deed conveyed certain land to 
 S. , who owned certain land adjoining the land of 
 C, but not adjoining the land now conveyed, 
 and the deed [irocccded — " and I further convey 
 tho right of way to cross my land * * from 
 the highway * * to the land owned by H., 
 * * to have and to hold the aforesaid lands 
 and premises with the appurtenances unto and 
 to the use of S., his heirs and assigns forever : " — 
 Held, that the right of way was not a mere way 
 
787 
 
 WAV. 
 
 jhh 
 
 C 
 
 i« 
 't 
 
 
 ill ^TdKH, llllt: llCCIIIIII' )l|i]llll'l('llllllt til till' lllllll (if 
 
 S., >;( liciiilly, mil not liuiily to tlic Imiil run- 
 M'Viilliy tlir ilii'il. 'I hi' wind " |ii( iiiIhih " ill 
 tln' lifi if iii:iy ciiviT lint nun iy tin,' iiiiiil cinivcy- 
 
 I'll, llllt nil llllit J^iKH liilnlr ill till' ill (il. iSV/(//ii/' 
 V. Cmijiir, 'JO. I!., ('hy. 1 1. :t!l,S. 
 
 AVlu'ic (' , iDiivcyt'il to '., lllllll Mliicli M'liH ill- 
 nuc'i'Hhilili' fioiii tilt; lii^liM iiy w itlimit l)ll^^^illJ; iivii- 
 till' laliiln III ('., or n inc iillu'l' (n i.miii :- llclil, 
 tliatu Viiy iif iKii'^wily \mih iniiiliiill_\ j^ianttil liy 
 ('., (iviT IiIm lllllll t'imvoyuil to S. /h. 
 
 Nimi^ ii w iiy of nricsHity run only |ui.sh w itli tlio 
 yriint III' till' Koil, till' iiuni'i' of tlic liyal rstati' in 
 the laiiil UN til wlinli it Im ilaiiiiiil, hIioiiIiI In; a 
 ]iarty toiiii actii n claiiiiing 8U< li way, anil wIktu 
 all i'i|uitalil(' iiuiirr nt tin: laiiil Nui'il, lie wa.s | I'r- 
 luittiil to iiiiiki' till' (iMiiir a to jilaiiitill liy 
 aiiiL'iiilintiit at tliu lifuiiiig. //;. 
 
 llilii, (111 api'i'jil tliat tlif wiHil.s 1 iiniliiyi'd in 
 tliL'dcid uiic .'-iiirniint to jiil'-s tlic intcri'st iii- 
 ttlidtd, and that tin.' right nl way was thiii'liy 
 inailu a|i|iiiiti iiaiit to all tlii' laiiilH iit S. tlitro 
 Hitiiiitid ; iKit nicicly tii that i-o conveyed hy ( '. 
 S. ('., 8 A. 11. 707. ' 
 
 JJ. and W'., lii'i'uniing entitled in IS.SO, as ten- 1 
 ants ill ciiiiiiiioM (if 1(1(1 acreH of hind, iiii(lui'a{ 
 devifii', niadi. a ]iartitioii tlaieof liy agretiiiint, \ 
 ^\ lRrtl>,\ aO acres wcie allotted lo each in sever- 
 alty. 'I lieriOaeres allotted toJ5.weie land-loeked, j 
 and till i( \\ as no way out to the liif:)iway, excejit 
 over the .".() acres ot \V., over which aecimlingly 
 11. was allowed hy \\ to |iass ut will. Jn IhlO, ! 
 \V. Mild to K. the .^O acres of his (".((, next j 
 adjoiniiij^' ll.'s .'id aciis, and also a stii|ifor!i; 
 
 of way liy the di fiiiihiiit'M |iieilei i ssor in title, 
 did not destroy the light lo a way ol lieiussity 
 — Held, also, thai the ili leiidant liiiMiig notiri 
 of nil ai tlial tiavelhil wiiy ai lo^s his land Wiis 
 ail('( ted, also, w itii notice ot the origiii, as Wi 11 
 as the exisleiice of the right : lit Id, also, that 
 changing the loc.dili of the way, fiiiii time to 
 time, liy the agninient of the rcKjici (i\e ovMiers, 
 did not dcstioy tin; right of way, iioi cunld thu 
 giant of a ceilaiii s|i(cillc line lor the mad ]iut 
 an eiiil to the right, in case a iiuichiixi slioiild 
 liny w itiioiit notice of the gr.'iiit : llild, lastly, 
 that any act oi a tinai.t, w ithiul tin Kiiowh ilgi; 
 or sanction of the hindloid, could oiilj allict his 
 inti rest as tenant, ami < ulild not [Hi jiidice the re- 
 versioner. JJijiiii V. ^V(«.i, 'K (, I!., i'liy. L>.,4(i.'> 
 
 Scnilile, that a way of necessity does not give a 
 right to the owner of the doiiiinant ti iieineiit to 
 cross any |iart of the servient teiRiniiit at jilea- 
 sure, llllt is conlined to a delinite way to be liu. 
 teriniiicd liy the agiciinent of the iiailies, or hy 
 the owner of the servient timnicnt, or of the 
 ill ininaiit teiielneiit in his ilefault. Jli. 
 
 |], I'dW KKS AM> IHllKS 111- MiMlll'AL t'oK- 
 I'OllAllii-V.s. 
 
 I. O/ii'liilHi IIiiikI*. 
 
 A liy-law (lasseil hy a ninniciiial eorjioratimi 
 cMiiiot have the ellcct of taking any lands of the 
 Crown in aildition to those ajiproiiri ted hy the 
 Crown for the iiurjmse of highways in oidor to 
 the oiiening up of the country. Voo v. Trhn, 27 
 Chy. 'MA. 
 
 Held, where a liy-law has heeii jiasseil for 
 
 foail aeriissthe other -JO acres. InlS-lS K. granted j oiieiiing a mad over" certain land, the inunieiTial 
 
 to the then owner of 15. « oO acres a strip for a 
 II ad all iig the north side of his ^{0 acres, and 
 also the strij) along W.'s "iO acres conveyed to 
 him 111 1840. 'I'his made a eliange in llieeouise 
 (if the Way theietofoie used hy J>., and his siie- 
 eessors, and was theneefoith the course foHowid 
 liy the latter, and was the right of way in (jiies- 
 tion in this aetion ; but this deed was not 
 registerid till IbS'_'. H.'s jiarcel suhseijuently 
 became vested in tin plaintiU, under conveyances 
 granting not only the land, hut also all ways, &c., 
 
 ily is not bound niiiler It. S. (). o. 174, s. 4.''i0 to 
 make eoinpeiisation to the owner before entering 
 on the land, lliinliiiij \. (')irjii/i(ifi<<iio/t/ie Town- 
 Hh'q, o/Cdrilif, '2 (J.'H., Chy. D. liL'!). 
 
 2. CloKiiKj Roaih. 
 
 Held, that the notice of intention to pass a by- 
 law to elo.'-e a road should state the day on which 
 the inuiiieijial council intend ennsideiing the by- 
 thcrewith u.si d and enjoyed. The derendant ' la>*'- '^cinhlc, that the nieru fact of tlie relator 
 claimed title to part of \\.'s iJO acres by deed i l""ving knowledge aliunde was not a Buthcitnt 
 made in 1S54, without notice, as he alleged, of answer to an aiiplieation by him to i|uash for 
 the deed of 1848. J he right of way in question W""t of a projier notice of tlie day on which the 
 liad been used liy the plaintitl', and his prede- , hy-law was to be eoiusidered. lu re Binhull and 
 eissors in title for over 'M years, prior to tlie , turnir uml The Coijioniliou oj Ihv Tuumhip of 
 obstruction thereof by the delendant, to restrain : ^ixjilioilil, 45 Q. li. 141). 
 
 which this aetion was brought :- Held, that the j -j-j,p „.,.,. „f ,, ,„„„ici.,al council to close up a 
 elect of the \\ ill ami agrijeinent together \vas^^_^,i ,,,^,1,,,. ^^.^on MA of the Municipal Act, 
 tlie same as if the wil itself had devised the one i .^^i.ceby any one is excluded from access to his 
 lalf to K and the other to \\ .,an;l ti.o plaintifi ,„,„, jy ^ eonditional one only, and it another 
 had a right of way ot necessity over the defend- ^^^onvenient road is not alicaily in existence, or is 
 ants h.i;d and was entitled to an iiijunetion to „„t opened by another by-law passed belorc the 
 ristram the obstruction complained of; and it ' tj,„j, ||xed for ch.sing the road, the hylaw clos- 
 was not n(^^ccssary for him to shew any express : j,, ^j,,. ^.^^^^ ,uay be quashed. The onus of 
 grant of the right of way by the defendant, or j,i,Xm ing that another convenient road is open to 
 
 Ilia predecessors in title :- Held, however, that 
 the right of way would have passed under the 
 grant of the land, and all ways, &c. , used and 
 enjoyed therewith, as also under a deed of grant 
 drawn according to the Act respecting short 
 forms of conveyances, even,if it bad niit been a 
 way of necessity, and no such words were neces- 
 sary in order to pass a way of necessity : — Held, 
 also, that the subsequent express grant of a right 
 
 the applicant is upon the corporation. Adam* 
 and 'J he Corporodov of the Tvwnxhip of East 
 WhUl.ij, 2 0. K., Q. B. D., 473. 
 
 3. Fctic'iiKj Ditches. 
 
 In driving along a country road the plaintifFs 
 were injured by tlieir horse and buggy falling 
 
7N8 
 
 iHKor ill title, 
 III iii'cuwbity 
 liu\ iiif; niiliri 
 lilh 1:111(1 uiii< 
 ui^iii, iw v\( 11 
 
 I III, aUo, th.it 
 I'K'Iii time til 
 
 II tis(' <ivMii'i'H, 
 
 IIOI inllltl tllll 
 
 tin: mail |iut 
 
 11 linx'i ^ll(mlll 
 
 111 III, hixtly, 
 
 III! Ulll<ullll{{(! 
 
 iiiiij iiUd'i IiIh 
 
 niinlii'f the re- 
 ( hy. D., ■»(!;'» 
 
 liii'M lint give n 
 lit tnuiiKJiit to 
 ilruiit at {ilcil- 
 wny til lie dc- 
 ■ [1.1 1 lies, or l)y 
 lent, or of tlic 
 Ih. 
 
 IJNUIl'AL CoH- 
 
 pill corjioratidu 
 iiy laiiilK of the 
 i|iri ttd liy the 
 lys ill (iidor to 
 hiii V. Trim, 27 
 
 ceil jmsacd for 
 , the iiitiiiieiiiul- 
 ■\ 174, 8. A'oii to 
 ' 1)1 fore, entering 
 '('(.// of tilt Town- 
 :V2'.). 
 
 ion to paBS a by- 
 he day on which 
 isideiiiig the by- 
 it of the relator 
 I not ti Biitlieicnt 
 nil to (luai^h for 
 iiy on which the 
 H re liiidxitU and 
 ' Ihe Tvu-htihip of 
 
 icil to close up a 
 Municipal Act, 
 oni aceiss to his 
 , and it another 
 [i existence, or is 
 jasBed belorc the 
 the ly law clos- 
 The onus of 
 t road is open to 
 uratioii. A dim* 
 'owiiMp of East 
 
 lad the plaintiffs 
 id buggy fulling 
 
 ■80 
 
 WAV 
 
 ryo 
 
 into (I (liteli at the Hide of the road. It was shewn 
 that the niailway between the ilitehen was thirty 
 feet wide ; that th'J iliteli wax of the Maine char- 
 acter as tliime ailing other riiaiU in the county : ' 
 and that in Hnine pliieitH where the ditches aie 
 «lue|i(!i' than iihuhI there are guards. There was ' 
 uviuenei! piiMJiit ed mi the part of plaiiitillk \s liieh, I 
 if believed, est iIiHsIumI faits from which a jury 
 ■night draw the infereini' that the ditch, eo .- 
 atriieteil where and us it was, was daiigeroii , al- 
 though there was evideiicu on tile part of the j 
 dufeiidanis to the emitrary. The jury found a I 
 verdict f<'i the plaintiUs, but the Court of Coiii- 
 IlKin i'hsis afterwards, upon a rule nisi to enter 
 a nonsuit or for a new tiial, granted a nonsuit, 
 holding that the iiaving made a ditch without < 
 guards or ladings, or without slanting the road- 
 way to the liiittom of the ditch so that u person 
 could drive into it without upsetting, was no 
 evidence of neglect on the ileleiidant.s' part to ' 
 kce]i the road in rejiair. Meld, reversing this; 
 judgment (.'to ('. I'. 'JI7), that it was a ijiiestioii 
 of tact for the jury, whether, h/iviiig regard to 
 all the cii'eumslaiiees, the road Was in a state 
 reasonably safe and lit for ordinary travel. As 
 the court below had )ii'oiiounced iio opinion as to 
 whether there slioulil be a new trial or not, the 
 appeal w.is siiii|ily allowed, setting aside the 
 nonsuit, but leaving the i|uestioii of new trial 
 untouclii'd. Wiiltim tt ii.i. V. Cm iiuriilUin of //if 
 CoHiily iij' Yoih, li A. U. ISI. 
 
 I II. KoAli COMl'AMKS. 
 
 The provisions of the 'MJeiii'ial Itoad Coni- 
 paiiies' Act" ( K. S. (>. c. LVJ), res] recti iig the e,\- 
 tonsion of roads, apiily to roads wliieli iiave lieeii 
 cuiistrueted and conipletcd, and tolls established 
 thereon. In this ease the extensions were new 
 constructions within the city of llaiiiilton, and, 
 measured separately, were less than two miles, 
 though the ilistance of the original road and the 
 extensions together iiiuch exeeeded two miles : — 
 Ilehl, that the defendants were entitled to exact 
 tolls therelor. The toll gate had lieen main- 
 tained for nearly nine years on the portions of 
 the rjad within the eity of Hamilton : — Held, 
 that this did not preclude defendants from erect- 
 ing a gate and tailing toll there. Knott v. Thf 
 llumiltoii mill Fluiiiliiiroiii/li Uiiiid t'oiiiitaiii/, 45 
 Q. IJ. Xih. 
 
 Under "The (General Road Companies Act," 
 R. S. O. c. IM, ss. lO'J, 104, 1()!», the tirst engi- 
 neer appointeil to examine a road alleged to be out 
 of repair, must act throughout the proceeding 
 unless another is appointed under sec. 100 ; but 
 under that section tlie judge is the person to be 
 satisfied that the first engineer is unable to make 
 or complete the examination, and his decision 
 on that point cannot be reviewed. The engineer 
 appointed under the Act need possess no otiicial 
 certificate or degree. The second engineer hav- 
 ing been appointed in .January to examine anil 
 report " as to the present condition of the road" 
 made an examination and so certified, but was 
 unable to report whether the repairs directed by 
 the previous engineer had been performed, as it 
 was covered with snow. In May following, 
 without any further authority, he again ex- 
 amined and certified that it was in gooil repair, 
 and the company began agiiu to take tolls: — 
 Held, that he was functus otiicio after the first 
 
 examination, and that the tolls theicforo were 
 illegally imposed. Uiffnui v. ilrnn'i'i, 4(i t}. B. 
 •-'00. 
 
 I\'. Rki'aikim:. 
 I. Jji/irn/iriiiliii'i Mnirriiil. 
 
 I'ursiiaut to a by-law of the town oi Ingersoll, 
 [' 'rmiti-ing that iiiiiiiii'i|)aliiy to take gravel from 
 C.'-i land for repairing their slreels, without 
 meiilioniiig the i|Uaiitiiy, the award was made 
 that the coipoiiitiim slioiild " Jiay C. ;i'_',', cents 
 for eviiy load of gravel or stone they slioiihl 
 take for the repairs of their mads, as and for 
 ciiiiipeiisation for the injury done, and that the 
 right to take such gravel at this piii;e slioiihl ex- 
 tend for live years" :- Held, tli.it the by-law 
 should have deiined the ipiantity of gravel re 
 ipiired to be taken, and tlie award hIidiiM have 
 lixed the' valie of siii'li ((iiaiitity as well as the 
 amount to In jiaid for the right of entry to take 
 the same away, and therefore that tlie award 
 was bad. Ill I'l' III'' ('iir/i'irdliiiii uf tin Toion m 
 Jii<jrr.^oll aiidCirrotl, 1 U. R., Q. H. U. 488. 
 
 2, l/iKh'ilJtij of Miiiilcijiiiliti/ for Xrijliijeiice. 
 
 A portion of a highway which the defendants 
 Were boilinl to keep in repair li.id a trench run- 
 ning across it caused by water escaping from a 
 culvert, and was allowed so to continue out of 
 repair for a niuiith. The ileeeased while law- 
 fully travelling along the road which he had 
 passed over the day before, attempted to cross 
 such trench in a waggon, from which he was 
 thrown and killed. In an action for damages, 
 it was alleged by the defendants that deceased 
 was Well aware of the delect in the road, if any, 
 and at the time of the accident was intoxicated, 
 and thus iroiitrilnited to the accident. It was left 
 to the jury to .say whether the deceased had .so 
 contributed to the accident, that but for want of 
 reasoiialile care it would not have occurred. The 
 jury answered this in the negative, and rendered 
 a verdict in favour of the plaintitV: — Held (alHrm- 
 ing the decision of the Court of t,!ueeirs Bench, 
 who refused a rule nisi to enter a nonsuit), that 
 the ijuestiou ol contributory negligence was one 
 for the jury, and could not have been withdrawn 
 from them. Mow v. Towntiliijin of Kiiuj and 
 Alliioii, 8 A. R. 248. 
 
 .See Walton it lu: v. TIih CorjioriUinn of tin' 
 Coiuitij of York, (j A. R 181, p. 789. 
 
 V. 0B.STRLCT10X OF PUBUO AM) PRIVATE WaYS. 
 
 1. Geiierallij. 
 
 Hehl, (A rmour, J., dissenting) that the Ontario 
 Act (R. y. O. c. 108) reducing the perioil of limi- 
 tation to ten years, does not apply to the interrup- 
 tion of an easement, such as a right to a way in 
 alieno solo, in this case a lane, which the defen- 
 dant had occuiiied and obstructed tor ten years, 
 but which the plaintiH' had used prior to such 
 obstruction. Mykvl v. Doijle, 45 Q. B. 65. 
 
 An arrangement made between the plaintiff 
 and B., whereby the latter "was allowed to go 
 througii" the plaintitr's land, was superseded by 
 an arrangement whereby, in consideration of 150 
 cords of wood and the making of a road by B., 
 
•91 
 
 WAY. 
 
 792 
 
 rr 
 
 
 V 
 
 the latter ■\\ms to have a right of way through the 
 sniiic himl. Tlic ])laiiititf' was to erect aii<i keep 
 iij) tlie gate at one eml, ami 15. was to keeit up 
 the yate at tht; other eiiil of the road. The wood 
 uas delivered, and the road made, aecordiiii: to 
 the teres of the agrccinint. Tlie plaiiitifl' :uil)- 
 .se(|iieiitly ereeted three additional gates along 
 the course ot the right I'f way, whieh were not 
 neeessary for the enjoyment of the land. The 
 liill was liled to nstrain the defendant from using 
 thi' way cxeeiit upon tlie (ei'nisof shutting those 
 three gates whiii going through: — Held, revers- 
 ing the decnc of Spragge, C. that the right of 
 way having licm puiehascd when there were 
 hut two gates, the ]ilaintitJ' had no right to fetter 
 the enjoyment of tlie way hy addiuir a<lditioiiul 
 gates, kiisliur v. B(wlli\ '_'!» Cliy. !!()(!. 
 
 ,Sio Sl(tmlh) ,f ill. V. I'irru it iiL, 3 S. C. R. 
 3.")l>, p.. 78 1. " 
 
 VI. SlPEW^T.KS. 
 
 TI._ defendants were the owners of a l)>iilding 
 on the street. A pipe, conneeted with the cave 
 troughs, eondueted tlie water from t'.e roof down 
 the side ot the hiiilding, and hy means of a spout 
 discharged it upon the sidewalk, where in the 
 winter it was fornied into a ridge of ice, upon 
 which the female plaintitl' slijiped and fell while 
 walking on the street and injured herself. The 
 jury found that the defendants did not know of 
 the aeeumulation of ice. and that they ought not 
 reasonahly to have known of it ;— Hehl, Armour, 
 dissentiu}.', that the defendants were not liahle. 
 Per llagaity, ( '. J. 1'lie carrying of the water 
 to the sidewalk was a harmless act ; the action 
 of the weather was the proximate cause of the 
 accident, and the defendants not having know- 
 ingly allowed ije to accumulate were not respon- 
 sihli;. I'er .-Vrniour, J. The conducting of the 
 wat'r to the sidewalk was a wrongful act, of 
 which the formation <pf ice on the sidewalk in 
 winter was the natural certain and well known 
 ri'sult, and the defendants Mere responsihle iiv 
 the accident. •Sblloii et ux. v. Thompson, 3 t ). 
 K., Q. H. i). 11. 
 
 of Gloucester, and that part of the bridge from 
 the Island to the latter township was wholly 
 within that township. Per Armour, J. — If this 
 he not the true construction, then, as the Legis- 
 l.iture were dealing with territorial and in'oprie- 
 tary rights, and not with navigation, the words 
 "main channel" mean the widest and not the 
 deepest or most navigahle channel, in which case 
 also the Island would be wholly within 'ilouces- 
 ter. The county was found guilty on an indict- 
 ment for not keeping the bridge in repair, which 
 had been renioveil into this court, but the indict- 
 ment described the briilge as being in the town- 
 shi]is of (Jlou'^ester and Nepean: — Held, that by 
 12 Vict. c. 81, s. '201, schedule H 4, the easterly 
 limit of <tttawa is the middle of the river, and 
 i is coincident with the westerly limits of (41on- 
 ] cester, and that no part of the township of 
 ! Nepean lies between Ottawa and the river ; and 
 i the bridge was therefore wrongly described as 
 I being in the two townships : — Held, also, that 
 though this could have been amended at the 
 I trial, it could not be amended on this motion, 
 and a new trial was ordered. Per Cameron, J. 
 The situation of the island in the river should 
 not affect the liability of the municipality, for 
 the bridge was evidently a county work, being 
 inteniled to span the whole river and form a 
 way from one bank to the other, the island, 
 ' which was out of the ilirect course that the 
 bridge would otherwise have taken, being merely 
 use<l for engineering puriioses: — Held, also, that 
 ' under R. S. (). c. 174, s. 40"), the duty of main- 
 taining the liridge was cast upon the city iind 
 county. Iti'ihin v. Tho Corporafioii ot the (Jountij 
 of Carktun] 1 O. R., Q. H. D. 277. 
 
 VII. BRIDfiF..-!. 
 
 1. 
 
 GemruUji. 
 
 The township of Gloucester and the city of 
 Ottawa, which was part of the township of Ne- 
 pean, are on the easterly and westerly sides 
 respectively of the river Rideau, and both with- 
 in the county of t'arleton. In the river at this 
 point is situate I'uminiiig's Island, and a bridge 
 extended from the Ottawa side to the Island, 
 and from tlie opjiosite side of the Island to the 
 Ciloucester shore. A line drawn down the middle 
 of the river ecjiiidistant from the banks, without 
 regard to any islnids, would leave the greater 
 part of Cumniing's Island on the (iloucester side, 
 but the cliannel between the Island and Gh)U- 
 cester is the most navigable, while the largest 
 amount of water passes through the other chan- 
 uel : Held, that aline so drawn properly ascer- 
 tained the limit between the atljoining munici- 
 palities, for the words "middle of the main 
 channel,'' used in 14 & 15 Vict. c. 5, s. U, and 
 R. IS. O. c. Ti, s. 10, have their common law 
 signitication of the middle of the stream, .and 
 therefore the Island formed part of the township 
 
 ! VIII. Tolls. 
 
 The plaintiff, a stage driver, was in the habit 
 
 of driving pas.sengers over that part of the road 
 
 of a company incorporated under ('. S. U. C. c. 
 
 4!). and previous Acts, from T. to the terminus 
 
 of a street railway laid 'luvn. o:i the line of the 
 
 I road, being between two principal gates ou the 
 
 I road, a distance of nearly three miles, thus using 
 
 ' many miles of the road daily. The defendant 
 
 who was the lessee and manager of the road, 
 
 er> cted a check gate across the ro.ad at a point 
 
 within the space travelled by the plaintiff, and 
 
 then enforced payment of a toll of live cents each 
 
 way from the plaintiff, giving a ticket to pass 
 
 I through the principal gate beyond : — Held, that 
 
 such cheek gate was legally erected, and the toll 
 
 was legally demanded ; and that the fact that 
 
 , the plaintiff did not intend to pass through a prin- 
 
 I eipal gate could make no difference. The road 
 
 ; company consisted of four persons, of whom F. 
 
 and another personally signed an authority to 
 
 t.' e defendant to erect the gate, and V. signed for 
 
 1 the other two under powers of attorney for the 
 
 I management of their affairs, but not specially 
 
 ' referring to this road. After action commenced 
 
 ! these two ratified F. 's act by endorsement on the 
 
 ] back of the authority ; — Held, sulBcient. Van- 
 
 i ikrlip V. Smuth, .12 C. P. GO. 
 
 I Held, that the plaintiffs had the power to de- 
 I miac to the defendant the right to collect the 
 ' tolls upon one of the township roads ; that such 
 ; right should be exercised under a general or 
 ' special by-law authorizing it ; but that this ob- 
 jection was not open to the defundauts, the 
 
792 
 
 r93 
 
 WILL. 
 
 794 
 
 ;he bridge from 
 lip was wholly 
 our, J. — If this 
 n, as the Legis- 
 ial iuiil pvoprie- 
 tiou, the words 
 ;st and not the 
 ;1, in which case 
 witliin 'Jlouces- 
 ty on an indict - 
 in repair, which 
 , l>nt the indict- 
 ing in the town- 
 -Held, that by 
 i 4, the easterly 
 f the river, and 
 limits of Glon- 
 he township of 
 I the river ; and 
 ,dy (les(ril)ed as 
 Held, also, that 
 miended at the 
 on this motion, 
 Per Cameron, J. 
 the river should 
 iiunicipality, for 
 nty work, being 
 vcr and form a 
 her, the island, 
 course that the 
 ;cn, being merely 
 -Held, also, that 
 he duty of main- 
 )(m the city and 
 'inn ot the Vountij 
 
 )77. 
 
 was in the habit 
 t part of the road 
 ler O. S. U. C. c. 
 , to the terminus 
 n the lino of the 
 ipal gates ou the 
 miles, thus using 
 The defendant 
 ger of the road, 
 J road at a point 
 the plaintiff, and 
 of live cents each 
 a ticket to pass 
 )nd :~Held, that 
 cted, and the toll 
 hat the fact tliat 
 i3S through a prin- 
 rence. Tlie road 
 •sons, of whom F. 
 I an authority to 
 , and F. signed for 
 f attorney for the 
 but not 8i)ecially 
 ictiou commenced 
 iidorsement on the 
 Bulficient. I'an- 
 
 . the power to de- 
 ;ht to collect the 
 ) roads ; that such 
 ider a general or 
 ; but that this ob- 
 I defendants, the 
 
 lessee and his sureties, the former having enjoyed 
 the beiielit of the demise during the wliole term. 
 The toU-giite was beyond the limits of the plain- 
 tiffs' municipality upon the Barton side oi the 
 road. Barton and Ancaster being adjoining town- 
 ships : — Held, tliat an objection to the plaintiff's' 
 right to collect tolls thereat could not lie niiiin- 
 taiued, for the plaintiffs might have the title 
 thereto under the ( jeneral Kuad Conipanieb Act, 
 K. S. U. c. lo2, s. 63 ; and there was nothing to 
 shew that the whole road allowance l)etween the 
 two ti'Wiiships was not part ot and vested in the 
 plaintills ; also, under \{. tS. O. e. 174, ss. 4U8, 
 41)i), there might have been a by-law of the 
 adjoining municipality giving the idaintiU's the 
 right to erect such toll-gate ; and even witliout 
 such by -law the plaintiffs encroachment may have 
 been acijuiesced in. Tlw Corfjurutwii of' the Town- 
 ■ship of Atioadcr v. Durrand ct al, 32 C V. 503. 
 
 See Ciutaila Southi'rn li. )!'. Co. v. 7 he luter- 
 naliuiKii i'tri(l<)(' Co., S App. Cas. 7'23 ; 7 A. K. 
 •2-26 ; 2SChy. 114, p. 387. 
 
 See also Sub-head 111, p. 789. 
 
 IX. Trees. 
 
 Held, that the owner of Land adjoing a high- 
 way has, under R, 8. 0. c. 187, such a special 
 property in the shade and ornamental trees 
 growing on such highway opposite to his land as 
 to entitle liim to maintain iin action against a j 
 wrongdoer to recover damages for the cutting i 
 tlown or destidying such trees ; and he is not 
 restricted to the penalty given by sec. 5 : — Hehl, 
 also, that the Act refers to trees ot natural 
 growth as well as to those planted. In this ease 
 the damage consisted in the cutting ilown of 
 some tell or twelve of tlie trees, tor which the 
 plaintitl' was awarded JiJloO: — Held, not excessive. 
 JJomjl'Li V. F<ij; ,'t al., 31 C. P. 140. 
 
 [.See 47 Vict, e. 36, s. 1 Out.] 
 
 X. Tkaction Enoi.ves. 
 
 See T/ic Cin-poi-dtioti of the Counhj of Yorl v. 
 The Toi-iiiito Cnn-el liitad and Concrete Co., 3 
 O. li. 584, p. 120. 
 
 XI. Quebec TiRNriKE Tklst. 
 
 See The Queen v. Bel/eau, 7 App. Cas. 473, 
 reversing? S. C. R. 53, p. 121. 
 
 WIFE. 
 .Set' HrsBANU .vxr> Wife. 
 
 WILD LANDS. 
 
 Title by possession to wild land can be made 
 out otherwise than by actual enclosure. See 
 67tcro( v. Shaw et nl., 1 0. U. 2(5, p. 431. 
 
 WELL.^ND CANAL. 
 
 Compensation for lands taken. See In re The 
 Welland Cuiial Enlargement- Fitch v. McRue, 29 
 Ohy. 139, p. 113. 
 
 WHARF. 
 
 See Standbj et al. v. Perry ct al., 3 S. C. R. 
 350, p. 781. 
 
 WIDOW'S ELECTION. 
 See Dower. 
 
 WILL. 
 I. CoMPETEXcv OF Test.\tor, 795. 
 
 II. AtiREEMENT.S TO BeQUEATII PEOPERTV, 
 
 795. 
 
 III. CoNSTRfCnoX AN'D In TERPRETATIOX OP 
 
 Wills. 
 
 1. Genendli/, 79G. 
 
 2. After Acquired Properti/, 796. 
 
 3. Particular W'ordi and E.cpre.igions, 796. 
 
 4. Period of Di.tlrihtdion, 797. 
 
 5. MiaUeicriplion In Will, 101. 
 G. Estate or Jntirent Taken. 
 
 (a) Edate Tail, 797. 
 
 (b) Life Edate, 798. 
 
 (c) Join/ TinaidH and Tenant" in 
 
 Conuiion, 799.' 
 
 (d) Vesteil or Contimjent, 801. 
 
 (e) Ve.'^ted Liable tj be Diverted, 803. 
 
 ( f ) Takimj per Stirpes or per Cupita,t- 
 
 804. 
 
 (g) E.ceeulori/ Drrixe, SOi. 
 
 (h) Bequest fi of Personalty, 804. 
 
 7. Pemninder.s, 80.">. 
 
 8. Coiicer/iion, 805. 
 
 9. Residuary Estate, 806. 
 
 10. Estate or Interenf taken by Ti usfc'.f or 
 
 Executors, 80t). 
 
 11. Investment of Securities, 807. 
 
 12. Annuities, 807. 
 
 13. Legacies. 
 
 (a) Satisfaction, 809. 
 
 (b) Lapse, 809. 
 
 (c) Abatement, 809. 
 
 (d) Charged on Land, 810. 
 
 (e) Demonstrative or Specific, 810. 
 
 (f ) Cumulative or Substitutional, 810. 
 
 (g) Conditional, 811. 
 (h) Interest on, Sn. 
 
 (i) Liability to refund, 812. 
 
 14. Provisions i\ir Support and Mainten- 
 
 ance, 812. 
 
 15. Power ot' Appointment, 812. 
 
 16. Conditions in Restraint of Alienation, 
 
 813. 
 
795 
 
 WILL. 
 
 796 
 
 ■Son 
 
 5- 
 
 
 17. Ekr/ioii, 
 
 (;i) By lliir, 813. 
 
 (li) By Widow.— See Dower. 
 
 18. Oiriiiij lihjht to Pnrchnne, 813. 
 
 MK Voiil JJivi<e.s or Benuestn, 
 
 (ii ) To Helif/ioiia or Charitahle Uses, 
 
 814. 
 (1)) To AtU'xtimj WitiKsx, 810. 
 (c) To Fore'Kjn State, 81C. 
 
 20. Pirjiduitks, 810. 
 
 21. Forfeit are of Dtrixe, 817. 
 
 IV. Kkgisthation of Wills — See Rehlstky 
 Laws. 
 
 v. cos'is of contf.sti.ng and consteuixo 
 Wills, 817. 
 
 VI. Mlscf.llankous Cases, 817. 
 
 VII. Donatio Moktis Causa. —.S'ee GitT. 
 
 I. C'J-MPETENCY OF TESTATOR. 
 
 The to.st.ntor, a man of eihication, had become 
 so weakfiicd by illness as to lie confined to his bed 
 f(ir sonu^ time jirior to his death, and a day or two 
 before that occurred executed a will, by affixing 
 what was intended as his mark thereto, the in- 
 structidiis for which were obtained by the person 
 preparinj.' it by jmtting questions to the testator 
 ns to the disposition of his different properties, 
 such will when drawn having been read over to 
 tlie testator clause by clause, who expressed his 
 assent to some of them while as to others he made 
 intelligent remarks and some changes in the pro- 
 visions thereof. The Court [Blake, V. C.,] in a 
 suit brought to impeach the will as having been 
 ol ':,^.ined l>y fraudulent practices and undue influ- 
 ence of jiersons benefitid thereunder, as well as 
 by the persons concerned in the preparation of 
 the will, refused the relief sought, and dismissed 
 the bill, with en ts to be paid out of the residu- 
 ary estate ; ..Ithough it was shewn that though 
 notice had been given to the testator, he wus 
 wholly unprejiared to make the will when he 
 came to the act — that there was no intention on 
 his part to make a will — that he was a man 
 who, when in jiosscssion of his mental faculties, 
 was not likely to take suggestions from others— 
 that not a single devi.se originated with the de- 
 ceased— that the author of the will did not know 
 what property the deceased had— that he admit- 
 ted that if lie had had this knowledge he would 
 have spoken to him seriously on the subject of 
 his relations, of whom there were several — that 
 the will was inofficious- that the testator was 
 84— that it took two hours to prepare the will, 
 altliough it covered but one foolscap sheet — an<l 
 that they sent for and obtained the numbers of 
 the lots from a neighbour, thus shewing that 
 they could not obtain the information from the 
 ^leceased. T/iomnon v. Torrance et al, 28 Chy. 
 253. Affirmed 9 A. R. 1. 
 
 See BeM v. Lee, 8 A. R. 185, p. 813 
 
 II. AOKEEMENTS TO BEQUEATH PROPERTY. 
 
 The testator, father of the plaintiflTs wife, sug- 
 jjosted to him to purchase a lot of land which was 
 
 subject to a mortgage, saying that if he would 
 do so, and have the property conveyed to his 
 . (plaintiff's) wife he would pay off the incum- 
 brance. The plaintiff in consequence made the 
 ' purchase, and had the property conveyed as sug- 
 ' gested, but the testator refused to pay the in- 
 stalments on the mortgage and the plaintiff was 
 com])elled to pay it off himself. The testator 
 subsequently expressed his regret cat having thus 
 acted, and promised the plaintiff that he would 
 do better for them ; that he would pay plaintiff 
 $150 a year for ten years, and bequeath to his 
 wife §1,000. By the will, however, only $100 
 was left to her, and the plaintiff instituted the 
 present suit against the representative of his 
 father-in-law to enforce such second agreement, 
 or for payment of damages by reason of the 
 breach thereof, """he only direct evidence was 
 that of the plaintiu. At the hearing there were 
 produced two receipts signed by the daughter 
 for .*>2()0 and $200. respectively, exi)res8ed to be 
 on account of money left her by her father's will ; 
 and witnesses swore that the testator had told 
 them that he had agreed to pay for the place if 
 the plaintiff would take out the deed in his w ife's 
 name, and that he was making the payments as 
 the plaintiff had so taken the deed : — Held, that 
 there was sufficient corroboration of the evi- 
 dence of the plaintiff as required by (R. S. 
 O. c. 02), and that the second agreement or 
 promise by the testator was not voluntary, the 
 former promise, even if bjirred by the statute, 
 being a sufficient consiileration, as well as the 
 conveyance to the daughter made in pursuance 
 of it ; and a decree was made for payment of the 
 legacy of $1,000, less the two sums of $200 and 
 $200, with interest from one year after the death 
 of the testator on the balance. Halleran v. Moon, 
 28 Chy. 31!». 
 
 See h'uberfi v. Nail, 1 O. R.. 388 p. 338. 
 
 I III. Construction and Interpretation ok 
 
 I W^ILLS. 
 
 I 1. Generally. 
 
 j It isja principle of construction that the same 
 I meaning shall, as far as possible, be given to the 
 i same words in the same will. Boijn' Home oj 
 I the City of Hamilton v. Lewis et at., 4 O. R., Chy. 
 I D. 18. 
 
 2. After Arqiured Property. 
 
 The testator owned eighty acres of land, and 
 sold a part thereof ; subsequently, and on the 
 30th March, 1875, he matle his will, whereby 
 he devised to his son N. the said eighty acres, 
 ' ' excepting so much thereof as I may have sold 
 and conveyed." Thereafter, and shortly before 
 his death, he again {icijuired the part which he had 
 sold :— Held, that although the will spoke from 
 his ileath, the after-acquired property did not 
 pass, for the testator had specified the subject 
 matter of his devise, within which the property 
 in question was not included. Vatmirkle et al. v. 
 Vaniickle et al. , 1 O. R., Chy. D. 107. Reversed 
 on appeal, 9 A. R. 352. 
 
 3. Particular Wordu and Expressionn. 
 
 ' ' Dying without heirs. " See Tyrwhitt v. Dew- 
 son, 28 Chy. 112, p. 708. 
 
796 
 
 , if he would 
 veyed to his 
 f the inciini- 
 ice made ths 
 veyed as sug- 
 ) pay the iii- 
 plaintiff was 
 
 The testator 
 t having thus 
 hat he wouhl 
 
 pay plaintiff 
 [ueath to his 
 er, only $100 
 nstituted the 
 itative of his 
 d agreement, 
 eason of the 
 evidence was 
 ng there were 
 the daughter 
 :pressed to be 
 father's will ; 
 ;ator liad told 
 •r the \Aa.co if 
 ;d in his w ife's 
 3 payments as 
 :— Held, that 
 I of the evi- 
 id by (R. S. 
 agreement or 
 /•oluntary, the 
 f the statute, 
 is well as the 
 
 in pursuance 
 aymcnt of the 
 18 of §2(50 and 
 if ter the death 
 leran v. Moon, 
 
 IS p. 338. 
 
 RETATION OF 
 
 that the same 
 je given to the 
 Boijh' Home of 
 , 40.R., Chy. 
 
 erty. 
 
 8 of land, and 
 y, and on the 
 will, whereby 
 1 eighty acres, 
 may have sold 
 shortly before 
 rt which he had 
 nil spoke from 
 jperty did not 
 ed the subject 
 ;li the property 
 nriKickle ei ul. v. 
 107. Reversed 
 
 cprenstoiiH. 
 "yrwhitt v. Dew- 
 
 797 
 
 WILL. 
 
 798 
 
 " Heirs." See Scott e.t al. v. Oohn at al., 4 O. 
 R. 457, p. 811. 
 
 " In case of death of my children. " See Diau' 
 bk v. Damhlf, 8 A. R. 470, p. 805. 
 
 " Worldly estate." See Town v Bordm, 1 O. 
 R. 3-J7, p. 803. 
 
 4. Period oj DiMrihution. 
 
 See Tijrivhitt v. Di'wwn, 28 Chy. 112, p. 798; 
 Andermii v. BM, 8 A. R. 531, p. 804. 
 
 5. MUdeacripthm in Will. 
 
 See ric Callaihan, 8 P. R.474, p. 6G7 ; Holtbi/ 
 V. ]Vilkin.'ion, 2S Chy. 550, p. 791). 
 
 6. Eitate or Intereat Tah:n, 
 
 (a) Eitate Tail. 
 
 A testatov, amongst other devises and bequests, 
 deviseil as follows ; — "Secondly, I butjueatli to 
 my son, liohnrt Little, eighty-six acres of land 
 (descnbiiiu; them), also one span of horses ami 
 one-half of my farming utensils : he is neverthe- 
 less subject to piy the sum of £112 lOs. to my 
 daughters, as hereinafter provided, the sum of 
 £18 15s., to be paid annually, the first instal- 
 ment to be mule one year aftijr my decease, un- 
 til the whole is p lid. '' He next devised to his 
 son .John fifty ai^res of Ian 1, together with one 
 s])an of horses and one-h ilf of his farming utan- 
 sils, subject al«o to a charge of £112 lOs. for his 
 daughters. He then made several bequests in 
 favour of his daughters .and wife ; and if his un- 
 mirried daughters should die before their legncies 
 were piid, John and Robert wore to divide the 
 unpai<l sums equally b.itwoen thorn. He then 
 provided as follows : " Should either of my two 
 sons Robert ami .John die without issue, I wish 
 th it their sh ires should be divided equally among 
 my surviving children :" — Held, that tlie sons 
 took an estate tail, and not a fee simple subject 
 to an excLMitory devise over. Littk v. Biltim/^, 
 27 Chy. .353. 
 
 A devis3 was to A. C. M. for life with re- 
 in vinder to her husband W. M. "and the heirs 
 of their bodies for ever :"--Held, that W. M. 
 took an estate tail. By a subsequent clause 
 the will provided that, in the event of the said 
 W. M. (lying without making a will, tlie pro- 
 perty should be divided among his surviving 
 children in certain shares, but declared it to 
 be the intention of the testatrix tliat he should 
 have full powers, with the consjut of liis wife, 
 to sell ami convey absolutely any part or por- 
 tion thereof; "and in cise of his making a 
 disposition by will to vary the shares and pro- 
 portions thereof as he may deem best" : — Held, 
 that the powers so given to W. M. to vary tiie 
 shares or proportions of tlu Iieirs-in-t ail, did not 
 afifect the quality of the estate devised. Flemin(/ 
 V. McDonijall, 27 Chy. 459. 
 
 By his will ami codicil a testator devised to 
 his son J. on the death of his mother, certain 
 land in consider ition for which he was to piy 
 the sum of .£150 to the executors in four years. 
 In the event of his "lying without heirs the land 
 M'as to be sold and the amount received therefor 
 over and above £150 " to ba equally divided 
 
 amongst my surviving children" : — Field, (1) that 
 J. took a fee-tail in remainder after an implied 
 life-estate in favour of the mother, as the "dy- 
 ing without heirs" must be taken to mean heirs 
 of the body, not heirs general, he having bro- 
 therj and sisters still living. J. died during the 
 lifetime of his mother. Held, (2) that the period 
 of division shouM lie the death of the tenant for 
 life, and the survivors at the time of such death 
 were to take the whole amount realized by the 
 sale of the lands upon which, however, the £1,50 
 was to form a charge. Ti/rwhUt v. Deio-ion, 2S 
 Chy. 112. 
 
 The testitor directed all his lands to be sold 
 by public auction or private sale on his younge.st 
 surviving child attaining 21, and the proceeds to 
 be divided amongst nine of his children, share 
 and share alike ; but in the event of either of the 
 nine children dying without issue before the 
 youngest surviviii:; child should attiin twenty- 
 one, tiie share of the one so dying should go to 
 the survivors :— Held, tint these word^ did not 
 create an estate tail or quasi entail —and that the 
 shares of the legatees were vested. Scott v. 
 Duncan, 29 Chy. 4;)(). 
 
 (b) Life E^fite. 
 
 A. devised land to his executors, "to hohl the 
 same in trust for the use and benefit of my son 
 \V. during liis lifetime, and aftjr tiie death of ray 
 son VV. in trust for his heirs, issnj of his body, 
 until the youngest of said heirs shall beco ne of 
 age, anil then to convey it to sai'l heirs, the chil- 
 dren of my said son \V. taking eijual shares, and 
 the child or children of any dece ised child of my 
 said son to tike their pireut's sh ire in equal pro- 
 portion:'' — Held, that \V. took only an estate 
 for life, and that the legal estatj in remainder 
 vested in the trustees for the benefit of his heirs. 
 In re Romanes and Smith, 8 I'. R. 323. —Proud- 
 foot. 
 
 A will dirii'cted an executor to pay A. for life 
 "the interest, dividends, and profits of certain 
 stock, and of the moneys into which the said 
 stock might be chinged." Subsequently new 
 stock was issued at par and 18 shares allotted to 
 the executor. Not being accepted, these new 
 shares were sold and proilucud a premium of 
 $22(5.(57, wliieh wis credited to the executor : — 
 Held, that the premium was principal, and that 
 A. w IS entitled only to the interest on it during 
 her life. Re Smith, 8 P. R. 384. — Proudfoot. 
 
 After directing a sale and division of the pro- 
 ceeds of an estate, the will as to one of the lega- 
 tees, M. S., "provided that the sud M. S.'s in- 
 terest in my est ite should not ba transferable or 
 transferred to anv other person whatsoever, but 
 may be inherited liy her children, legitimate ; 
 and in case the said M. S. die without legitimate 
 issue, then her interest in my estate shall revert 
 back to the other legatees," &c.: — Held, that M. 
 S. took only a life estate. Jeffreii v. Scott, 27 
 Chy. 3U. 
 
 A testitor bequeathed to his two daughters 
 (both of whom were married and had eliildrea 
 at the time of his will) the sum of $1,000 each, 
 charged upon his rcilty, which ho devi.sed; such 
 sums to be invested in bank stock, and the inter- 
 est accruing thereon to be paid to his daughters 
 duriaj{ their natural lives, and after their decease 
 
799 
 
 WILL. 
 
 800 
 
 
 Km 
 
 
 tlirectcil tlies-e sums to l;c wjiiallyiliv idcil amongst 
 tlieir biiis. By u t(.ilicil, tlii' tts-tatdr dincted 
 that, Bliould his real estate be sold, the $;.',000 
 might iiiiiaiii on n.oitj.(igo at interest, lujable 
 liiilt ye!iil\ to tlie (laiighti IB, and when tlieinoit- 
 grge should he jiaid, his executors were to have 
 Inll jioMir to invitt that sum in homesteads for 
 his daiijihters, ^liould they dcsiie tn do so: — 
 Hehl, tliat the daughters took a liie estate, with 
 nmaindc rs to their heirs as imrthasers. Ji'Mjcru 
 V. Lcmlliidii, 27 <-'hy. ooi). 
 
 A testator devised eertain real estate "to he 
 owned, iiossist-ed, and iiihc rited hj- my w i!e during 
 her natural life suhje ;t to the lurthei- ijiovisions 
 of niyv\ill,"tollo\\edl>y adevise to "W.ti. when 
 hv. is of the age ol twenty-three years, liOO aeres, 
 or if sold before he arrives at the years mentioned, 
 that some other lot of hind or nioniy auitjuntiug 
 in value to the above njentioned lot be given him 
 in litu thereof :"— Held, that the wife took a life 
 estate witli a vested remainder over to A\'. (.i., and 
 the testator liaving shortly before the liate of his 
 will contraeted lor tiie sale of the land so devised, 
 that the estate of ^ i'. G., who died during the lile 
 of the widow, alii' belore he liad attained tw enty- 
 three, was tntit'ed to the i)roteeds of sueh sale : 
 — Held, also, that '•'200 aeres of land, the west 
 half of lot ^o. N,'" was falsa deuioustiatio ot tlie 
 west half, the testator having relerred to the 
 whole lot as being "200 acres in a subsequent ] art 
 of the w ill. UoUbij v. Willlimon, 'J8 (, by. 550. 
 
 A testator <k vised certain Iand.s as follows : "I 
 will, devise, and lje(iueath unto niy wife lor and 
 during her natuial life all that jiareel of land (des- 
 cribing it) * * I also will and be(iueath unto 
 her, my beloved wife, eveiy thing, real and per- 
 sonal, within anil without; and it is herebj' un- 
 derstood that the property above deseiibed shall 
 he under the control of my said beloved wife. 
 After the demise of my wife it is my will aiul 
 pleasure that the aforesaid real estate shall des- 
 cend to my nephew and his heirs. " The testator 
 liad uo other real estate than the said lands, and 
 there was nothing else to which his langufige, 
 importing that his wife was to have control of 
 everything, real and personal, could be referred: 
 —Held, nevertheless, that the intermediate clause 
 had no effect on the lite estate expressly given to 
 the wile, and there w as nothing to ch;inge or en- 
 large the usual character of such life estate, so as 
 to render her dispunishable for waste. \Vliite (". 
 Briggs, 15 Mm. 17, S- C. in appeal, 2 I'hib 583, 
 distinguished. Clow v. Clou; 4 O. li., C'hy. D. 
 355. 
 
 See also Tyrwhitt v. Dewsou, 28 C'hy. 112, p. 
 798; AhUarry v. Tlwihpnun, 29 Chy. 287, p. SOU ; 
 Dumbk V. Duvible, 8 A. E. 476, p. 805. 
 
 (c) Joint Tenants and Tenants in Cowmon. 
 
 By will J. H. A. directed :— "Until the expi- 
 ration of four years from the time of my decease, 
 and until the division of my estate as hereinafter 
 directed, my executors shall every year place to 
 the credit of each of my children the suP' of six- 
 teen humlred dollars, and if any of my children 
 ehall have died, leaving issue, then a like sum io 
 mad among the issue of the child so dying, such 
 •um of sixteen hundred dollars to be paid by half 
 yearly instalnitntB to such of uiy children as 
 shall be of age or he married ; but if any advan- 
 ces shall have been made to any of them, and 
 
 I interest shall be due thereon, such interest to be 
 deducte<l troni the said sum ol sixteen bundled 
 dollars. As ngaiils the division, a; [idjiria- 
 ti<in, and ultimate disposition of my esiate, it is 
 niy Will that, subject to the paynanL ol my just 
 , debts and legacies, bequests and annuities, I 
 have heretol(Jie given (pr may hereafter give, and 
 to the exiienscsof the management oi my estate, 
 all the rest, residue ; nd rcniaintlir ol my estate, 
 and the interest, iicriase, and aeciiniulation 
 : thereof, be distribulid, settled, j aid and dis- 
 posed of, to and among my children who may be 
 alive at the time of thedivisum and apropriation 
 into shares of n.y estate heieinalter diiected, 
 and the issue then living of such oi my cliildrea 
 as may be then dead, at the time and in the 
 manner following, that is to say: '1 bat imme- 
 diately, on the e.spiiation of four years from my 
 death, my execnluis, alter making tiuh provi- 
 sion as may be necessary for the i).iyment ol any 
 debts and legacies that may be outstaiitiing and 
 uniiaid, and of outstanding annuities, and of the 
 I expense of the nianaj.emi.nt ol ujj estate, shall 
 divide all my remaining estate into as many just 
 j and eijUal shares as the numler of my then sur- 
 I viving children, and of my ehililreii who shall 
 I before them have ilied, having law iiil i.s.-ue then 
 surviving, shall amount unto, and shall appor- 
 tion anei set off one such share to each of my 
 said then surviving children, and oiu sueli share 
 j to the lawlul issue of each of my then deceased 
 I children, whose lawful issue shall be then sur- 
 I viving, all the issue of each deceased child stand- 
 ing in the place of such deceased child. And it 
 is my w ill, anil 1 direct, that freiii heiicelorth a 
 I separate account shall be kept by my trustees of 
 each share, and of the interest and jMolit thereof, 
 I and the payments made to or on account ot or tor 
 ' the maintenance and education of »mo1i of njy 
 I said children or issue, shall be charged a;;ainst 
 the share apportioned to such child or cliirdreii, 
 or wherein such issue shall be interested, so that 
 all accumulations and profits that may arise shall 
 enure to the increase of each several share on 
 which such accumulation or profit shall accrue — 
 it being my intention that alter such division 
 shall take place, the maintenance, education, and 
 support of each of my chiklren w bile under the 
 age of twenty-one years shall be drawn from the 
 separate income of such child, and the mainte- 
 nance and education of the children of any of 
 my children who may have belore them tiled, 
 leaving issue, shall be diawii from the share or 
 shares set apart for the issue of sueh deceased 
 child or children. And that my children, and 
 such issue of deceased children being of age, 
 that is to say, of the age of twenty-one years, or 
 when respectively they shall attain the age of 
 twenty-one years shall be severally entitled to 
 receive for their own use the whole of the inter- 
 ests and profits of the share and proportion of 
 my estate to which they may be respectively 
 entitled." On 26th May, 1864, M. L. A., tes- 
 tator's daughter, married C. II. F., appellant. 
 Testator died 24th Uecember, 1870. On 25th 
 August, 1872, testator's daughter died, leaving 
 three childien, H. A. F., E. B. F., and W. S. 
 F. On the '4th l<epttmber, 1877, H. A. F., the 
 eldest son of appellant and M. L. A., died. 
 Thereupon the appellant claimed that the thiie 
 brothers took the mother's share under the will 
 as tenants in couimon and, the proiierty being 
 personal property, H. A. F.'s share vested in 
 the appellant's lather : — Held, that the uiten- 
 
I 
 
 800 
 
 iiittiwt to be 
 
 tt-'cii liuiidied 
 
 II, ill i.ni]iria- 
 
 y tsiiitf, it is 
 
 till ol my just 
 
 iiiiuiilies, I 
 
 iftcr give, and 
 
 t Ol my estate, 
 
 r (p| my estate, 
 
 iH'i'iiiiailaticin 
 
 jaid and dis- 
 
 11 « 111) may be 
 
 aj liJi'iiation 
 
 itltr iliicttt'd, 
 
 )1 my children 
 
 lie and in the 
 
 '1 luit imuie- 
 
 ytais iioni my 
 
 g hiuli jjiovi- 
 
 lymciit ol any 
 
 tbtaiuiiiig and 
 
 iu8, and ol the 
 
 y estate, shall 
 
 as many just 
 
 1 my tlicn sui- 
 iLii ^^ ho shall 
 
 n ud i.s.-ue thtu 
 d shall ajuior- 
 to tilth i/t my 
 oiu such share 
 then deceased 
 
 II lie then sur- 
 ^ed child stiilld- 
 
 hild. And it 
 
 III hciicelorth a. 
 my trustees of 
 
 I j'lolit thereof, 
 I'couiit ot or lor 
 of each of my 
 •haiged against 
 ild or chirdieii, 
 crested, so that 
 may arise shiiU 
 veral share on 
 t bliiill iicerue — 
 such division 
 educidion, and 
 I hilc under the 
 Irawn from the 
 nd the nuiinte- 
 Ireii of iiny of 
 ire them died, 
 111 the share or 
 such deceased 
 children, and 
 Leing of age, 
 .y-one yeai's, or 
 tidii the age of 
 ally entitled tt> 
 lie of the inter- 
 [l proportion of 
 )e respectively 
 rl. L. A., tes- 
 F., appellant. 
 S70. On 'J.'ith 
 • died, leaving 
 F. , and W. S. 
 , H. A. F.,the 
 L. A., died, 
 that the time 
 under the will 
 pro\ierty being 
 lare vested in 
 hat the iiiten- 
 
 801 
 
 WILL. 
 
 802 
 
 tion of the testator was that his estate should be 
 divided, and that the chiltlren of testator's 
 daughter took as tenants in common, .and con- 
 sequently on the death of the eldest son the 
 whole right, title svnd interest in his share, 
 vested in the a])pellaut. Fisher v. Anderson et 
 al, 4 8. C. R. 40G. 
 
 A testatoi" directed that, at the death of his 
 wife, if she survived biin, all his estate (with 
 certain exceptions) should be sold, and the pro- 
 ceeds eijually divided among his four daughters 
 and three son.^ and their chfldren, after paying 
 ?200 t" 'lauh of the three children of his deceased 
 divughter R. He left surviving him his widow, 
 who was still living, three sons and four 
 daughters and twenty-seven grandchildren, lie- 
 sides the chiltlren of R. Two of the grandchild- 
 ren were born after the date of the will but before 
 ■i;he testivtor's death, and one was born after his 
 death: — Held, that (dl the children .and grand- 
 children would take concurrently who were in 
 existence at the death of the widow ; but as 
 otlier grandchildren might still come into being 
 who would not be bound by the present pro- 
 ceedings, the court declined to make any order 
 upon tlie will. Dnjdcn v. Woods, 129 Ohy. 43C i 
 
 (d) Vested or Contimjent. 
 
 The testator gave £1,500 by will to bis widow, 
 and in the event of her marrying again or <lying 
 intestate, this sum was at her death to be divided 
 share and share alike among " my heirs (my 
 brothers' children)." The widow did marry 
 again, aiul a tlaughter of W., a brother of the 
 testator, died after marriage imt bcfoi-e the death 
 of the widow, and so before the time for distri- 
 bution: — Hehl, thiit the rule in such a ease is, 
 that a be(juest in the form of a direction to pay, 
 or to pay and divide at a future period, vests 
 immediately if the payment be postponed for 
 the convenience of the estate, or to let in some 
 other interest ; that the intention here Wivs to let 
 in the life estate of the widow, and tliat this 
 was a share vested in the deceased child of W., 
 which jiassed to her representatives. Webster v. 
 L'.ys, 28 Ohy. 475. 
 
 A will contained a devise in trust for the sup- 
 port ami maintenance of the testator's widow 
 during her life or widowhood, with a direction 
 that she should htive the full right to [lossess, 
 occupy, antl direct the management of the pro- 
 perty ; and at her death or second marri;ige. 
 " my son Thomas, if he be then living, shall 
 have and take lot one, which I hereby ileviso to 
 him." Thomas ilied before his mother : — Held, 
 that he took a vested remainder in lot one. 
 Reefer v. McKai/, 29 Chy. 162. AlKru.ed, 9 A. 
 K. 117. 
 
 The will further containetl a devise of lots 
 two, &c., to the testivtor's sons, Alexander, John, 
 Charles iind Thomas, their heirs and assigns, as 
 tenants in common, and a direction that the same 
 should take effect from ami after the death or sec- 
 ond marriage of the testator's widow. There was 
 a proviso that if any child died without issue be- 
 fore coming into possession of his share, the same 
 should go to the survivors. An intlenture was 
 executed between the parties, conveying all the 
 estate, &c., of those interested to Alexander, 
 John, Charles, and Thoinas, after the execution 
 
 51 
 
 of which Alexander and Charles died. An Act 
 of Parliament was subsequently passed confirm- 
 ing this intlenture, and declaring that it should 
 take effect from its date, and not be affected by 
 the subsequent death of any of the testator's chil- 
 tlren ; anil it confirmed the estate in .John and 
 Thomas as tenants in common, subject to the life 
 estate of their mother ; with the right of survi- 
 vorship between them in case of one dying before 
 the other without issue, before the death or mar- 
 riage of their mother. After this, antl in his 
 mother's lifetime, Thomas died, having, however, 
 survived his brother .John, who ilied without is- 
 sue : — Hehl, that Thomas took a vested remain- 
 der in fee expectant upon the iletermination of 
 his mother's life estate. lb. 
 
 The residue of the estate was directed to be 
 converted, and to be at the disposal of the widow 
 for her life, while she remained unmarried, iiud 
 thereafter to the children. This was subject to 
 a proviso as to coming into possession :— Held, 
 that the children took vesteil interests in the 
 fund, subject to be divested on the happening 
 of the coutingency meutionetl. lb. 
 
 A testator by his will giive his homestead and 
 certain personalty to his wife, while unmarried, 
 for the maintenance and support of the familysur- 
 viving him, until the members of his said family 
 should respectively attain twenty-one, antl after- 
 wards for the maintenance of his wife for life. 
 He then proceedeil to give and bequeath all his 
 other real and personal estate, not thereinbefore 
 mentioued, to his executors in trust to dispose of 
 and invest, and "upon my son Thomas attaining 
 the age of twenty-one years, should he be my 
 only child, in trust to pay to him and put him in 
 possession of the siud residue ;" but if there were 
 more children, he directed that it should be di- 
 videtl amongst idl, in the proportion of one part 
 to a daughter ;ind two parts to a sou, to be paitl 
 to them when they should respectively attain- 
 twenty-one. He then proceeded to devise to hia 
 son Thomas the lioineste;id, together with the 
 household goods, &c., on the decease or second 
 marriage of his said wife, should he have attain- 
 ed his twenty-first year. And in ease his son 
 Thoniiis shoultl not survive him, or attain the 
 age of twenty-one, or in case he (the testator) 
 should have no other surviving child who should 
 attain the age of twenty -one, or in case he should 
 have no graudchilil, his real and personal estate 
 was to be ilivideil in certain proportions anions 
 his brothers ami sisters. Thomas, the only chilg 
 surviving the testator, iittained twenty-two, and 
 died without issue, leaving him surviving hid 
 mother who had not married again :— Held, 
 Thomas took a vested estate, for that it did not 
 appear that the testator intended it to be con- 
 tingent either on his attaining twenty-one, or 
 surviving his mother : — Held, also, the testator's 
 intention was, that the gift over should not take 
 elfect unless Thomas ilied under twenty-one, 
 without leaving it child. Gairdner v. Gairdner, 
 1 O. K., Chy. D. 184. 
 
 A testator, by his will, "as touching his 
 worldly estate," gave to his wiffe the use of all 
 his personal property and of his farm and build- 
 ings for her support and the bringing up of his 
 children, — "and cat her decease the whole of the 
 personal and real property to be equally divideil 
 lietween my six children :" — Held, that the 
 shares of the children vested on the death of the 
 
80S 
 
 WILL. 
 
 804 
 
 
 testator. Baird v. Baird, 26 Chy., 367, explain- 
 ed and reconciled :— Held, also, " worldly es- 
 tate " includeb not only the corpus of the testa- 
 tor's property, but the whole of his interest 
 therein. Towu v. ISordoi, 1 0. K., Chy. D. 327. 
 
 A testator, by hi? ■\»'ill, <lirected his trustees to 
 accumulate certain trust moneys arising from the 
 sale of his real and personal estate, and to hold 
 them after the death or second marriage of liis 
 wife, and his youngest child attaining majority, 
 in trust for his sons and daughters in equal shares 
 as tenants in common ; and in the event of any 
 of his said children dying leaving issue, he di- 
 rected that the share of the one, so dying, should 
 be divided among such issue, so soon as such 
 issue should have attained majoiity ; and in de- 
 fault of any such issue of Iiis said children at- 
 taining majority, he devised the whole estate. 
 real and personal, to his trustees, to be converted 
 into money, and applied to founding a chari- 
 table institution : — Held, on a view of the wli.)lc 
 scope of the will, the period of absolute vesting 
 was postponed until the grand-children attained 
 majority, failing which the devise to the charity 
 took eflFect. Rule in O'Mahoney v. Burdett, L. 
 R. 7 H. L. 388, and Ingram v. Soutten, //). 408, 
 applied. lie Charles— Fulton v. Whatmougli, 1 
 0. R., Chy. D. 362. Reversed on appeal. 
 
 See HoUbi/ v. Willin.mu 28 Chy. 550, p. 799 ; 
 iScott v. Duncan, 29 Chy. 496, p. 793. 
 
 (e) Vested Liable to be Divested. 
 
 The testator expressed a desire "to have re- 
 tained for my children my property on Yonge 
 street ; and tor this purpose I desire that the pro- 
 ceeds of my life insurance be applied in the 
 purchase for my daughters' benefit of the incum- 
 brances of that property. Under any circum- 
 stances, I desire that all my other lands be sold. 
 
 • * I desire that the proceeds of my estate and 
 rents of my Yonge street property be applied 
 
 * * in the support, maintenance, and educa- 
 tion of my two daughters, and in paying the 
 incumbrances on the Yonge street property. 
 After paying the necessary charges, my wish is, 
 that the interest of my estate be applied by my 
 trustees in the support of my children. Slwuld 
 one of my said two daughters die, or becfmie a 
 Roman Catholic, her share to go to the other, 
 a'ld shotdd both die without issue, or become 
 Roman Catholics, then my estate is to go to my 
 sister L. and her heirs. * * I direct that my 
 trustees shall divide the proceeils of my estate 
 equally between my two daugliters, allowing 
 each, during their minority, or until the marriage 
 of one or other of them, a sum sufficient to main- 
 tain and educate tliem, and after they come of 
 age an equal share of all proceeds to be secured 
 and paid them, free from all control of any hus- 
 band or any other person." There were only 
 these two daughters, children of the testator, 
 and both attained the age of twenty-one ye.-irs 
 without either having become a Roman Catholic : 
 — Held, that the interests taken l>y the daughters 
 were vested, though subject to be divested upon 
 the happening of tiie events mentioned before 
 twenty-one ; and that at tliat time the shares vest- 
 ed absolutely in tliem : so '^nat L took nothing 
 under the will, ariffilh v. Griffith, 29 Chy. 145. 
 
 See Keeferv. McKay, 29 Chy. 162, p. 802. 
 
 (f) Taking per Stirpes or per Capita. 
 
 A testator disposed of the residue of his estate 
 as follows: "I give and betiueath the remainder 
 of my personal and real estate to my legal heirs, 
 including my daughter Jemima Woodside, to bo 
 divided equally amongst them." He left three 
 children and four grandchildren, the issue of two 
 other of his children, who predeceased him : — 
 Held, that a division per capita (not i)er stirpes) 
 was proper. Chadhoitrne v. Chadbourne, 9 P. It. 
 317.— Boyd. 
 
 The testator bequeathed his residuary estate, 
 all other property, in lands, mort^'ages, and 
 stocks, to his grandchildren, "the children of J. 
 C, and of my daughter, A. J. B., wife of D. B., 
 share and share alike, on ^their coming of the 
 age of twenty-live years, to be finally determined 
 and paid to them on the youngest coming to the 
 age of twenty-five years. Provided, neverthe- 
 less, that each one on coming to the age of 
 twenty-five years receive a portion of not more 
 than half what their share will be on the young- 
 est coming of age." (Then directions were given 
 as to keeping books of account, and managing 
 the estate.) "And when the books so audited 
 shew the revenue of my estate, after paying the 
 before mentioned becjuests, taxes and other 
 cliarges on the same, amounts to .t'50O, then half 
 of such revenue or income be divided, share and 
 share alike, between the families of my son, J. 
 C. , and the family of my daughter, A. J. B. " 
 (Tlie other half going into the estate) :— Held, 
 affirming the judgment of the Court below, 29 
 Ciiy. 452, that tlie children referred to, the grand- 
 children of the testator, took per capita, and not 
 per stirpes. Anderson v. Belt, 8 A. R. 531. 
 
 (g) Executorij Devise. 
 See Little v. Billings, 27 Chy. 353, p. 797. 
 
 (h) Bequests of Personalty. 
 
 A testator, who died in February, 1869, by 
 his will, amongst other things, gave legacies pay- 
 able in eight and thirteen years, and (leviscd lot 
 8 to his sou 11., and lot 9 to his son 1)., subject 
 to charges, the devisees to get possession thereof 
 when his youngest child attained twenty-one. 
 At tliat time D. and R. were to get one lialf of 
 the stock and implements which would then be 
 on the said lots, the other lialf to t)e divided 
 amongst other legatees. Tlie youngest child had 
 not yet attained twenty-one. Tlie Master at 
 Hamilton directed an account to be brought in 
 of the stock and implements at the time of the 
 reference on said lots, being the proceeds of the 
 old stock left thereon by the testator, and .also 
 those subse<iuently jirocurcd from the produce of 
 the said lots ; and .-dso an account of the stock 
 or implements left by the testator which still 
 remained on the land. The defendants appealcil 
 on the ground that if any further account was 
 to 1)0 furnished, it shouhl be only of stock and 
 imjilenients purchased with the proceeds of the 
 sale, or obtained by the exchange of the stock oi' 
 implements left by the testalor; which aiipc.-l 
 was dismissed, with costs. Davidson v. Olivii, 
 29 Chy. 433. 
 
 Testator by his will gave all his property real 
 and personal, to trustees, directing that his wife 
 
804 
 
 r Capita. 
 
 10 of his estate 
 the remainder 
 my lugal heirs, 
 '^oodside, to bo 
 He left three 
 he issue of two 
 3eased him : — 
 lot per stirpes) 
 mime, 9 P. K. 
 
 aiduary estate, 
 lort^ages, and 
 J cliddren of J. 
 wife of D. B., 
 coming of the 
 .lly determinetl 
 euming to tlie 
 lied, nevertlie- 
 to the age of 
 :)n of not more 
 on the young- 
 ons wore given 
 and managing 
 oks so audited 
 fter paying the 
 ces and other 
 f500, then lialf 
 ded, share and 
 I of my son, J. 
 hter, A. J. B." 
 state) : — Held, 
 ourt below, 29 
 I to, tlie grand- 
 capita, iind not 
 A. R. 531. 
 
 553, p. 797. 
 
 alty. 
 
 •uary, 1869, by 
 ve legacies pay- 
 and devised lot 
 son 1)., subject 
 ssession thereof 
 ed twenty-one. 
 
 get one lialf of 
 
 would then be 
 t to l)e divided 
 ngcst child had 
 The Master at 
 [> be brought in 
 the time of tlie 
 proceeds of the 
 stator, and also 
 1 the produce of 
 lilt of the stuck 
 itor wliiih still 
 idants ajipeali'd 
 ler account was 
 ly of stock and 
 
 proceeds of the 
 e of the stock or 
 
 ; which ajipe-l 
 Hihon V. Ol'wtr, 
 
 is property real 
 iig that his wife 
 
 805 
 
 WILT. 
 
 806 
 
 should receive all rents and interest during 
 widowhood, and until his youngest child shoiili! 
 come of age : that in case of licr duatli or mar- 
 riage before the youngest child came of age, his 
 property should he divided equally among his 
 children on their respectively coming of age, and 
 in case all his children should die under age with- 
 out issue, their portions siiould be divided eijually 
 among iiis brothers and sisters. A letter was 
 found among his papers, addressed to his wife, 
 saying that he had made two wills, " one before 
 I was married, which is to be considered void, 
 but the other 1 wish to modify, as it was written 
 ill a hurry. 1 wish my dear wife and our child- 
 ren to have all my property, to be divided eipially, 
 my wife to have the use of the whole until the 
 children are of age. In case of death of my 
 children my wife to have tlie use of the property 
 in her lifetime, and then to go to my brothers and 
 sisters." The testator left two childreii, who 
 both died under age unmarried, their mother 
 surviving them :— Held, reversing the judgment 
 of the Court below, (29 C;hy. 274,) that the will 
 and letter must be read together, and the will 
 must stand except so far as " modiiied ;" that 
 the "death of my children" referred to their 
 death under age without issue before his wife ; 
 and therefore that she took the personalty (which 
 alone couhl be aflfected by the letter) for life, 
 and after her deatli it would go to testator's 
 brothers and sisters. Durnhk v. Dumhle, 8 A. 
 R. 476. 
 
 7. Remainders. 
 
 Sec liogers v. Lowlhian, 27 Cliy. .559, p. 799 ; 
 Ti/rwkiltv. Di'W>i<m, 28Chy. 112, p. 798 ; Iloltbii 
 V. II ilkinsou, 28 Chy. 550, p. 799. 
 
 died without (;liil(lren that there was an intestacy 
 as to his share, suliject however, to a proportion 
 of the charge for the maintc'auce of the widow. 
 McGarry v. Thompson, 29 Chy. 287. 
 
 8. Convtrsion. 
 
 A testator devised all his real and personal 
 estate, to trustees to sell the realty and get in 
 the personalty, the proceeds of which, after pay- 
 ment of debts, they were to invest in their names 
 upon trust to pay tiie annual income to liis two 
 Bons in ecpial moieties, tiiey maintaining their 
 mother during life ; and after tlie death of each 
 of the sons the trustees to hold one moiety of the 
 trust moneys upon trust to pay and divide and 
 transfer the same ecjually between and amongs'- 
 Buch of his children as shouhl be living at his 
 decease, and the issue then living of such child- 
 ren aa Bliould be then dead, as tenants in com- 
 mon in a course of distribution, according to the 
 Btocks, and not to the number of individual ob- 
 jects, and so that the issue of any dece.'ised child 
 should take, liy way of substitution, amongst 
 them, the share or respective shares onlj', wliieh 
 the deceased parent or piirents would, if living, 
 have taken :-- -Held, that the widow was not put 
 to her election, but was entitled to dower as 
 well as the provision made for her by the will ; 
 and it being alleged that the sons had not pro- 
 vided for her maintenance, a declaration was 
 made that she was entitled to such maintenance, 
 and a reference was directed to find what would 
 be a proper sum for that purpose, that a com- 
 plete Cv.""-ersion had been eliected by the trust for 
 sale in tne will, so that the interests of tiie sons 
 should be ascertained as if the will consisted of 
 personal estate only ; and that the sons took life 
 estatea therein only ; and one of the aona having 
 
 9. lii'siditary Enlate. 
 
 Among other bequests the testator declared aa 
 follows : — " I becjueath to the Worn-out Preach- 
 ers' and Widows' Fund in connection with the 
 Wesleyan Conference here, the sum of £1,250, 
 to be paid out of the moneys due me by Robert 
 Chestnut, of Frederictou. I becjueath to the 
 Bible Society £150. I beciueath to the Wesleyan 
 Missionary Society in connection with the Con- 
 ference the sum of £1,500." Then follow other 
 and numerous bequests. The last clause of the 
 will is :— " Should there be any surplus or defi- 
 ciency, a pro rata addition or deduction, as may 
 be, to be made to the following bequests, namely, 
 the Ww'ii-out Preachers' and Widows' Fund ; 
 Wesleyan Missionary Society ; Bible Society. " 
 When the estate came to be wound up, it was 
 found that tiiere was a very large surplus of per- 
 sonal estate, after paying all aiinuiti(.s and be- 
 ((Ucsts. Tills surplus was claimed, on the one 
 hand, uiub r the will, by these charitable insti- 
 tutions, and on the other haud by the heirs-at- 
 law and ne.xt of kin of the testator, as being re- 
 sidiiarj' estate, undisposed of under his will : — 
 Held, altirming the judgment of the Supreme 
 Court of New Brunswick, that the "surplus" 
 lunl reference to the testatjr's personal estate 
 out of which the annuities and legacies" were 
 payable ; and therefore a ))ro rata addition sliould 
 be made to the three above-named bequests, 
 .Statutes of ^lortinain not being in force in New 
 Brunswick. [Founiier and Henry, J J., dissent- 
 ing.] Hay et al. v. The Annual Conference of 
 yew Brunswick, dkc., 6 S. C. R. 308. 
 
 See Gillies et al. v. McCunochie, 3 0. H. 203, 
 p. 815. 
 
 10. Estate or Interest Taken by Trustees or 
 Executors. 
 
 A testator devised to his wife for life a parcel 
 of L'uul "with the power of sale at any time dur- 
 ing her life, subject to the consent of my execu- 
 tors." Three executors were appointed bj* the 
 will, one of whom died. A contract for sale of 
 part of the land having been entered into, it was 
 objected by the purchaser that the consent of 
 the two surviving executors was not sutticient : — 
 Held that in the eonfiicting state of the authori- 
 ties upon the question, the title was not one 
 which the court would force upon a purchaser : — 
 Held, also, that under such a power the land 
 coulil be sold in parcels, lie MacNahb, 1 O. R., 
 Chy. 1). 91. 
 
 Where a testator, after devising certain lands 
 to"niy trusty friends J. L and R. M. " on cer- 
 tain trusts for tlie maintenance and education of 
 his son, J. E., and devising the residue, real and 
 personal, to the said "J. L. and R. M., or the 
 survivor of them," in trust to sell, and distribute 
 the proceeds in payment of certain legacies, there- 
 in specified, continued, "should there ultimately 
 be any residue, 1 direct my s.tid trusteca, or the 
 survivors of them, to divide and pay the same to 
 and among my legatees hereinbefore named and 
 my said truateea, or the survivor of them, iu 
 
80f 
 
 VVIM,. 
 
 K08 
 
 c: 
 
 ■«' 
 
 r ■" 
 II-. 
 
 even ami l'(juhI HlinroH and jiroportionH " — Jfolil, 
 that tlio ti'iiHtoes todk iiH a ulaH.s, i. e., one wliaro 
 liutwtt'ii tliuiu, c'luiil to tli(3 sliiiruH taki.ii rc'^pcc- 
 tiv»;ly liy Uiu lt>;,itifH ; lor lodUiiij^ ut llii: wlioltj 
 Mill, it c'lpiiujiivil that tlic tcstutnr wiis sptiikiiiL; 
 of till: triistui's in tliuir (itlioial i;a[)auity, nnd re- 
 garding tlioni as one legal iiurson. Hui/.h' lliniii- 
 of the Villi of Hamilluii v. Li:ivU ft al,, 4 U. li,, 
 Chy. 1). 18. 
 
 See In re RumnnvK mid SiiiiHi, 8 I*. K. H23, ji. 
 798; Oiriiis v. Dnvvill, 21 VA\y. TtO^, p. 785; 
 Moorev. MellM, 3 O. Ji. 174, )). 810. 
 
 11. Inrenlmiiit of Securities. 
 
 The testator, a resident of Oiityrio, but teni- 
 jMirarily resident in New York, was possessed of 
 real and personal piojierty in Ontario, and also 
 of personal pro]ierty invested in United States 
 securities. Jiy his will he named one resident 
 of the United States (his brother-in-law) and two 
 persons residents of Ontario, as his executors, to 
 M'honi he bequeathetl all his personal estate, upon 
 trust as soon as conveniently might be to sell, 
 call in and convert into money such part of his 
 estate as sliould not consist of money, and there- 
 out to make certain payments, and invest the 
 balance of such moneys in or uiion any of the 
 public stocks or funds of tiie Dominion of Can- 
 ada, of the I'rovince of Ontario, or upon Canadian 
 Government or real securities in the I'rovince of 
 Ontario, or in or upon tin; debentures of any 
 inuuiqipality within tiie I'rovince of Ontario 
 aforesaid, or in or upon the shares, stocks, or 
 securities of any bank, incorporated by Act of 
 i'arliament of Canada, paying a dividend, with 
 power to vary the said stocks, funds, debentures, 
 BharcB and securities : "And as respects my 
 American securities, having the fullest confidence 
 in the judgment and integrity of the said W. E. 
 C, my brother-in-law and trustee, I direct my 
 trustees to be guided entirely by his judgment 
 as to the sale, disposal and reinvestment thereof, 
 or the permitting of the same to bo and remain 
 as they are, until maturity thereof, and I declare 
 that my said trustees or trustee shall not bo re- 
 sponsible for any loss to be occasione<l thereby" : 
 — Hehl, that this did not authorize the re-invest- 
 ment of moneys realized on tlie sale, or maturing 
 of any of these securities in the United States, 
 but that the executors were bound to bring them 
 into this country, and invest them in one or other 
 of the securities enumerated by the testator. 
 liurritt V. Burritt, 27 Chy. 143. 
 
 12. Annidtie.f. 
 
 A testator becjucathed the annual income of all 
 his estate, real and personal, to Ids widow dur- 
 ing widowhood, subject to the payment of $l(iO 
 ayear to his father, and after the death of his 
 father to his mother, and after the death of both 
 his father and mother the said annuity of SKiO 
 was given in equal shares to N. and J., a sister 
 and niece of the testator, and he thereby made 
 this annuity to bis father and mother, as also the 
 annuities to N. and J,, a ciiarge upon all hia 
 real estate ; and directed hib executors and 
 trustees to pay or cause to bo paid the net an- 
 uual income of his estate ("after payment of the 
 aiinuitiea as aforesaid ") to his wife absolutely 
 
 during widowhood : -Held that in the event of 
 the income of the estate iiroving insuliicient to 
 pay the annuities, tlie annuitants were entitled 
 to have the same raised out of the corpus of the 
 estate. Joiwn v. JuniH, 27 Chy. 317. 
 
 J. R. died ou the 3rd August, 187C, leaving a 
 will tlated Oth August, 1873, and a codicil dated 
 2lMt July, 1870. Hy the will he devised to 
 his widow an annuity of §10,000 for her life, 
 which he declared to be in lieu of her dower. 
 This annuity the testator directed should be 
 chargea))le on his general estate. The testator 
 then devised and be<|ueathed to the executors 
 and trustees of his will certain real and personal 
 projierty particularly described in live schedules 
 marked respectively, A, H, C, 1), and E, annexed 
 to his will, ui)on these trusts, viz. :— Upon trust, 
 during the life of his wife, to collect and receive 
 the rents, issues and prolits thereof which should 
 be, and be taken to form a portion of his "gen- 
 eral estate ; " and then from and out of the gen- 
 eral estate, during the life of the testator's wife, 
 the executors were to pay to each of his five 
 daughters the clear yearly sum of 1?1,()00 by 
 ccpial quarterly payments, free from the debts, 
 contracts and engagements of their respective 
 husbanils. Mext, resundug the statement of the 
 trusts of the schedule proiterty specifically given 
 the testator provided, that from and after the 
 death of his wife, the trustees were to collect 
 and receive the rents, issues, dividends and 
 jirotits of the lamls, itc, mentioned in the said 
 schedules, and to pay to his daughter M. A. A., 
 the rents &c. , apportioned to her in schedule A ; 
 to his daughter E. of those mentioned in schedule 
 ii ; to his daughter M. of those mentioned in 
 schedule C ; to his daughter A, of those men- 
 tioned in schedule D ; and to his daughter L. of 
 those mentioned in schedule E; each of said 
 daughters being charged with the insurance, 
 ground rents, rates and taxes, repairs and other 
 expenses with or incidental to the management 
 and upholding of the property apportioned to 
 her, and the same being from time to time de- 
 ducted from such (juarterly payments. The will 
 then directed the executors to keep the proper- 
 tics insured against loss by lire, and in case of 
 total loss, it should be optional with the parties 
 to whom the pioperty Wiis apportioned uy the 
 schedules, either to direct the insurance money 
 to be applied in rebuilding, or to lease the pro- 
 perty. It then declared what was to be done 
 with the share of each of his daughters in case 
 of her death. In the residuary clause of the will 
 there were the following words : ' ' The rest, 
 residue and remainder of my said estate, both 
 real and personal, and whatsoever and whereso- 
 ever situated, 1 give, devise, and berpieath the 
 same to my said executors and trustees, upon the 
 trusts and for the intents and purposes follow- 
 ing ;" He then gave out of the residue a legacy 
 of §4,000 to his brother D. K., antl the ultimate 
 residue he directed to be equally divided among 
 his children upon the same trusts with regard to 
 his (Liughters, as were thereinbefore declared, 
 with respect to the said estate in the said sche- 
 dules mentioned. The rents and profits of the 
 whole estate left by the testator proved insuffici- 
 ent, after paying the annuity of <$10,000 to the 
 widow and the rent of and taxes upon his house 
 in L., to pay in full the several sums of $1,600 a 
 year to each of the daughters during the life of 
 their mother, and the iiucstiou raised ou this 
 
808 
 
 809 
 
 \VIM>. 
 
 810 
 
 1 the event of 
 iiHUllicieiit to 
 werti entitled 
 t'( trims of the 
 17. 
 
 870, leaving a 
 I codicil dated 
 10 devised to 
 ) for lier life, 
 jf her dower, 
 cd shouhl be 
 
 The testfttor 
 
 the excciitorH 
 I and perHOiial 
 
 live schedules 
 iid E, annexed 
 Upon trust, 
 jct and receive 
 f which should 
 1 of his "gen- 
 tut of the gen- 
 Li'stator'a wife, 
 ich of his five 
 
 of §l,(iOO by 
 :oin the debts, 
 leir respective 
 atcnient of the 
 ucilically given 
 
 and after the 
 
 ere to collect 
 dividends and 
 cd in the said 
 Iter M. A. A., 
 ill schedule A : 
 lied in schedule 
 
 mentioned in 
 of those men- 
 daughter L. of 
 ; each of said 
 tlie insurance, 
 [lairs and other 
 le management 
 apportioned to 
 iiie to time de- 
 ents. The will 
 oep the proper- 
 aiid in case of 
 (vith the parties 
 trtioned by the 
 isurance money 
 o lease the pro- 
 ivas to be clone 
 ughters in case 
 lause of the will 
 8 : " The rest, 
 lid estate, both 
 er and whereso- 
 d bec^ueath the 
 ustees, upon the 
 jurposea follow- 
 residue a legacy 
 .nd the ultimate 
 ' divided among 
 s with regard to 
 Uefore declared, 
 n the said sche- 
 d profits of the 
 proved insuffiei- 
 
 $10,000 to the 
 3 upon his houao 
 sums of $1,000 a 
 uring the life of 
 n raised ou this 
 
 
 li'ipcal was, whcthci' the cMMiitors ami truHlccM 
 i..id power to sull or innrtgiigi! any pint of the 
 corpus, or a))ply the funds of the corpus of the 
 property, to make U|) the (k'liciciicy : -Held, on 
 appeal, tiiat the annuities given to tliu daugli- 
 ters, and the arrears of their annuities, were 
 chargeable on the corpus of the real and personal 
 estate subject to tlie right of the widow to have 
 a sntiicieiit sum set apart to provide for lier 
 annuity. Almon v. Lcwin, 5 S. C. H. 514. 
 
 See Eihvarda v. I'earsun el «/., 4 O.K. 514, p.811_ 
 
 13. Lcijar.lvn. 
 
 (a) Safi/ifavtion, 
 
 The testator by his will, made in .luly, 1877, 
 devised to his sou (>., certain real estate and 
 brewery, expresisiiig that "this devise lie ac- 
 cepted l»y and to be in full discliarge of any and 
 every claim he .shall have against iiiy estate at 
 the time of my decease. " In a sub.seciueiit clause : 
 " L." the testator, declared that in the event 
 of selling lands apucitically devised, the proceeds 
 were to lie substituted it tlie lands by charging 
 the proceeds against the real e.itato of the testa- 
 tor. The testator was indebted to (J. in the sum 
 of §30,146.80, and on the 8th of October, 187i», 
 the parties met and agreed that tiie testator 
 should sell part of the lands devised to liiin, in- 
 cluding the brewery, to (i. for S'J7,000, and the 
 brewery plant for !;!(), 987, 20, whicli was credited 
 on G.'s claim against the testator. U. subsc- 
 qently, under clause "li.," claimed against the 
 estate of the testator payment of the amount for 
 wliicli the brewery premises and plant were sohl, 
 he swearing that he was ignorant of the contents 
 of the will. Thereupon the plaintiffs, two of tlie 
 executors and trustees, instituted proceedings 
 seeking to obtain a construction of the will :— 
 Held, reversing the judgment of the court below, 
 that the agreement entered into between the 
 father and sou superseded the devise to the son. 
 Archer v, Severn, 8 A. 11. 725. 
 
 (b) Lapw. 
 
 The testator bc(pieathed an amount of personal 
 estiite to his brother John, " to have and to hold 
 to him, his heirs and assigns, for ever." John 
 predeceased the testator : — Held, that the legacy 
 lapsed, and that the next of kin of the legatee 
 was not entitled. Mealeyv. Aikim, 27 Chy, 503. 
 
 Ills <lcath ; tliat >\liat h.id trikcn |>lii('(> MiiKiiintcd 
 to payment of tht; di'lit ; ami timt she was ei'ti- 
 tled to the logocy <>i SO. 000. H'i/keH v. irUkce, 
 I O. K.,Chy. U. 131. 
 
 (d) C'hurijeil vn Land. 
 
 A testator, after directing that hia funeral 
 cliargea and debts sliiiuld bo paid liy liis execu- 
 tor, disposed of his real and personal estate as 
 follows : First, he gave and bequeathed certain 
 legacies " to l)u paid out of my estate," and then 
 he gave the residue and remainder of his estate, 
 leal and personal, to his son W. alisolutely, and 
 he nominated \V. solo executor : — Held, that 
 the legacies were, by tlie will, charged upon the 
 estate, real and personal, and failing personal 
 estate became a charge on tlie land ; ami that 
 W. had power to sell the laud, and a purchaser 
 from him was not bound to see to the applica- 
 tion of the purchase iiionoy, Moore v. M)-llinh, 
 3 0. R., Chy. D. 174. 
 
 See I'vumey v. Traa-i/, 4 O. 11. 708, p. 816. 
 
 (e) DeiiwuHlralive or Specific, 
 
 A testator by his will directed that "$.5,000 
 of the money which 1 may be entitled as my 
 share of the partnership business now carried on 
 at," &c., under the nauie of E. H. & Co., should 
 be invested by his executors at interest, and that 
 the income derived therefrom should by them be 
 
 {laid over, as received, to his daughter M., for 
 ler maintenance until she attained twenty-one, 
 when she shouhl bo entitled to .S-^jOOO ; and if 
 tlia interest in any year from the investment 
 should fall short of $400, the iliti'erence to make 
 up that sum should be paid by hia executors out 
 of the interest or profits derived from the re- 
 mainder of her estate. Subject as aforesaid, 
 he gave the residue of his estate, real and per- 
 Bimal, to his executors in trust for his son, &o. 
 Subsequently to the making of the will the part- 
 nership of E. H, & Co. waa dissolved, and the 
 testator until his death carried on the busineaa 
 alone, but under the name of E. U. & Co., hia 
 intereat in the partnership having been realized 
 by him and carried into his new business : — 
 Held, that the legacy of $5,000 was demonstra- 
 tive and not specific, and that she waa entitled 
 to be paid the same out of the general estate. 
 Day V, Harris, 1 0. R., Chy. D. 147. 
 
 (c) Ab(Ueme.nt. 
 
 A testator bequeathed, " unto my siater M. J. 
 Buoh sum aa will, together with what shall be 
 at her credit in my booka at Montreal, make 
 $0,000." At the time of the making of the will 
 there waa $3,253.47 at M. J. 'a credit, but sub- 
 sequently the testator disposed of his business, 
 and aa part of the arrangement placed an addi- 
 tional aum of $2,000 to M. J 'a credit, making 
 the whole aum at her credit $5,253.42 : of this 
 sum, $3,000 waa placed on a apecial account at 
 interest, $2,000 waa agreed to be paid to her by 
 the purchasera, and the balance, $258.42, waa 
 paid in cash, and her account balanced in the 
 books, leaving nothing at her credit: — Held, 
 that M. J.'s legacy was to be reduced by the 
 amount of testator's debt to her at the time of 
 
 (f) Cumidative or Substitutional. 
 
 A testator, after making certain bequests to 
 his wife, directed that after her death, his ex- 
 ecutors should sell all his estate, real and per- 
 sonal, and after providing for certain pecuniary 
 legacies, should give the legal interest on one- 
 fourth of the remaining proceeds of his estate to 
 his daughter E., to be paid to her yearly during 
 her life, and a^tor her death to bo divided among 
 her surviving children. By a codicil he willed 
 to " E. and her heirs that ahare or division of 
 my eatate, aa referred to in a former will, in land 
 composed of the north east part of lot 7, conces- 
 sion 3, Markham." It appeared that the testa- 
 tor had put E. in possession of the said fifty acres 
 some time before his death, and that the said 
 fifty acres wore about equal to one-fourth of the 
 
811 
 
 WILL 
 
 812 
 
 
 
 whole ruaiduii of Iijh uHtiitu ; -llclit, lliat tliu <U) 
 viae to K. in tliu ('(idicil wiih Hiili.stitiitiniiiil I'nr 
 the buijueHt to her in the will, Held, iilsci, that 
 under the codicil K. took an cHtiitt! in fee, iind 
 not one Hiihjuct to the incidentii of th(^ original 
 gift in the will. In no case of HulmtituticiMiil 
 nUin liaB it heen liulil that tin; NiiliM<'(|nciit ^'ift '\h 
 to go to the pai'lieH cntitleil under the Huhse 
 ({iient liniitntiou of the forniiT gilt. The word 
 " liuirH" may Hoinetinies moan '• childi'en," hotli 
 in regard to personal and real estate, hut that 
 meaning will oidy be given to it « hen it i.s clear 
 that the property was intend, d to go to the 
 children. Scutt it al. v. <>o/iii rt al., 4 <). If., 
 Chv. I>. 457. 
 
 A testator, after directing payment of his 
 debts, and funeral and testamentary e.xpimscw, 
 diHpoaed of the residuo ;is fullows : "Secondly, 
 I givo to my wife .'r'loO ainiually, during her na- 
 tural life, or HO long as she may remain my 
 widow, the said sum to be ri;ceive(l and accepted 
 by her in lieu of dower, the said yearly allow- 
 auce to be a lien upon my real estate, and to be 
 paid my said wife as she may need it, eitiier 
 quarterly or half-yearly." He then directed his 
 executors to sell his farm and all his [lerHonal 
 property e.\cei)t that i)reviously disiiosed of, and 
 out of tiie proeicds: tirst, in pay his dclits, iVe., 
 as aforesaid ; and to divide the balance then re- 
 maining between his sons, 8id)jeet to each of 
 them securing to the'ir mother an amnial p;iy 
 ment of !f5() during her natural life, the security 
 to be satisfactory to her and his executors :-— 
 Hehl, that there were sullicient points of ditl'er- 
 enee between the tirst annuity and the sulise- 
 quent ones, to make it apparent that the several 
 annuities in favour of the widow were intended 
 to be cumulative. Klwai-dx v. I'iar6uH vt al,, 
 4 O. R., Chy. D. 514. 
 
 (g) C'ultllitiolKll. 
 
 A. by the third clause of his will, devised and 
 bequeathed the residue of his estate to his wife, 
 four sons, and two daughters ; the devise and 
 bequest being subject to the condition that they 
 should all unite in paying to the executors be- 
 fore the let of January, J877, the sum of $1,G00, 
 and the same sum before the 25th January', 18S2, 
 said sums to pay the shares of two of the sons, 
 Alexander and Duncan. By the 4th clause he 
 gave the sum of $1,600 without eouditiuu, to 
 Alexander and Duncan. By the 5th clause, be 
 devised to his sous, Douglas and Uliver, two 
 lots ; and after giving several legacies to his 
 daughters, he proceeded, "and further, that 
 Alexander and Duncan work on the farm until 
 their legfvcies Ixicome due." Alexander left the 
 farm in 1871, and entered into mercantile pur- 
 suits :— Held, aliirming the judgment of rroiid- 
 foot, V. C, Patterson, J. A., dissenting, that 
 Alexander was entitled to the legacy absolutely, 
 and that the direction that he should work on 
 the farm, was not a condition precedent to his 
 right thereto. Davidson v. Oliver et al., 6 A.R. 
 595. Reversed on appeal to the t^supreme Court. 
 
 (h) Interest on. 
 
 See Toomey v. Tracey, 4 0. R. 708, p. 
 Cameron v. Campbell, 7 A. R. 361, p. 439. 
 
 816 
 
 (l) l.iilhiilhl III Itij'iiwl. 
 
 Held, in this ease that although tlie sums 
 overpaid to Home of tlie legatees had been so paid 
 with the sanction of the Court, but in a suit in 
 which infants now claiming were not i)roj)erly 
 represented, that did not relieve the [)artles to 
 whom such payments were made from refunding 
 the an>r>unt, but under the circumstances the 
 order for repayment shoultl arrange the mode 
 tiiereiif so as to be as little burdensome as should 
 appear to beconHistent with justice to the parties 
 entitled to receive the money. Aiiilemun v. lictl, 
 8 A. R. 531. 
 
 14. I'rov'iKtonn fur Siiji/jorl ami Mtiinleniince, 
 
 The testator by his will devised the proceeds 
 of certain real estate to his daughter-in-law, 10. 
 1>., widow of his son \V. 1)., deceased, to her use 
 anil sU£iport of his son W. D.'s children during 
 her natural life, or so long as she remained his 
 widow ; and in tiie cvtHit of the death of his 
 said daughterin law, then to his grandchildren 
 so long as they remained nnnors. He then do- 
 vised tlie land to his grandson 1', D., in fee, but 
 subject to the aliove devise. After the testator's 
 death I'l. D. married again, and was still living: 
 — Held, that the intent of the testator was, that 
 in any event the minors were to have the support 
 of tiie land during minority, and therefore were 
 bo entitled during such minority, upon the de- 
 termination of tlie motiier's estate by marriage 
 as well as by death. Jlinvy v. Uilktrc, 31 C, 1'. 
 243. 
 
 A tcstatiu' devised certain lands to his two 
 Honw, declaring that the legacies thereinafter 
 mentioned siiould be a charge thereon. He then 
 beijueatlied certain pecuniary legacies to his 
 daughters, adding, "1 give and devise also unto 
 [his .said daughters] their support and mainten- 
 ance so long as they, or either of them, remain 
 at home with [his two sonsj;" and he gave his 
 personal property to his two sons in equal 
 shares: — Held, that the support and mainten- 
 ance of the plaintitl's was, by the will, made a 
 charge upon the lands; and they might for sutli- 
 cient reasons, cease to live at home, and yet still 
 be entitled to such support and maintenance. 
 iSwainnon v, BeiUley, 4 O. R., Chy. D. 572. 
 
 See Olvinn v. Darvill, 27 Chy. 502, p. 785 ; 
 McOarryjv. Thompson, 29 Chy. 287, p. 806. 
 
 15. Power of Appointment, 
 
 The decree in this cause (28 Cby. 150,) reversed 
 so far as the will was declared void, on the ground 
 of insane delusion. The testator, under the pro- 
 visions of his father's will, had the power of ap- 
 pointing his share of his father's estate among 
 his children or to his brother or sister. By his 
 will the testator gave portions, about one-fourth 
 of his estate, to two of his chiluren, and as to the 
 residue he appointed the same to his brother 0. 
 T. B. , desiring him to pay first his (testator's) 
 indebtedness to his father's estate, and to release 
 his policy of life insurance from such indebted- 
 ness, ami then gave and bequeathed to a stranger 
 the i^olicy of assurance upon his life for l$3,000, 
 and all moneys arising therefrom : — Held, that 
 as to the portions of his estate given to his two 
 children the will was valid ; but as to the ap- 
 
812 
 
 gll till! HUMIH 
 
 I Ixjeu HI) paid 
 t ill II Huit ill 
 not properly 
 
 tllC (Ktl'tlUH to 
 
 'dill r«:fuiuliiig 
 iimtaiiufH tlio 
 \gu thu inoilu 
 diiiuuhhIioiiIiI 
 tu thu partiua 
 ilcmon V, Hell, 
 
 Ininlewuice, 
 
 tlic proceeiU 
 tur-iu-law, K. 
 n:i\, to iier uso 
 ililruii (luring 
 
 roinainud iiin 
 
 deatii of his 
 granduliildrun 
 
 Ho thun do- 
 U., in feu, but 
 ;■ tho testator's 
 as still living : 
 ator was, that 
 ,ve tlie suiiport 
 iliorefore were 
 , upon the de- 
 ,L' by marriage 
 'Ikec,', 31 C. 1'. 
 
 ids to his two 
 ■s thereinafter 
 eon. He theu 
 ugaeies tu his 
 evise also uutu 
 ; and maiuteu- 
 [ thuin, remain 
 id lie gave his 
 suns in equal 
 and mainten- 
 
 will, made a 
 might for sutli- 
 iie, and yet still 
 
 1 maintenance. 
 f. D. 672. 
 
 . 502, p. 785; 
 U87, p. 8oe. 
 
 nent. 
 
 . 150,) reversed 
 i, ou the ground 
 
 under the i)ro- 
 lie power of ap- 
 s estate among 
 sister. By his 
 bout one-fourth 
 in, and as to the 
 > his brother 0, 
 
 his (testator's) 
 e, and to release 
 such indebted- 
 led tu a stranger 
 I life for 1^3,000, 
 n :— Held, that 
 ;iven to his two 
 it as to the ap- 
 
 813 
 
 WILL. 
 
 814 
 
 pointmcnt to his brothiT, tlie s.nnie was void as 
 being a fraudulent exereisc of tlii^ powi^r of iip- 
 pointinent ; and tlicri lore that as to tlic rcsicliii' 
 after ]iaymeiit of tiie aiiicniiits j,'ivfii to tiic two 
 children the will was inoperative and void, ;iiid 
 that as to HO inueh there was an intestacy, /{ill 
 V. Lee, 8 A. 11. 185. 
 
 16. CimilitioiiH in Rent ml lit of AHrnnlioti, 
 
 A direction in a devise in fee siniiilu that the 
 devisee shoidd "not sell, or cause to be sold, the 
 above named lot, or any part thereof, during her 
 natural life, but slie shall be at liberty to grant 
 it to any of her children whom she shall think 
 proper:" — Held, a valid restraint upon alic.'iia- 
 ntioii : — Held, also, that the giving of a mort- 
 gage by tho devisee was not a violation of the 
 restraint. Siiiilh v. t'umjhl <i al., 45 Q. ]J. 484. 
 
 'I'lio testator directed that his wife should have 
 tiio use and control of all his ](roi)erty r(!,al and 
 personal until his tw-> sons W. k If. should come 
 of age or until the said property is <lis|)osed of 
 as hereinafter mentioned. He ilevised to each 
 of these sons one-half of his farm, to be possessed 
 by them when respectively of the full ago of 
 twenty-one. JIo then gave to his live daughters 
 certain pecuniary legacies to be jiaid by each of 
 his said sons within specilicd jieriods after tiieir 
 possessing the projierty, and directciil them to 
 give his wife a comfortable sup]iort, or .t'lO each 
 annually during her life ; and the will then ])ro- 
 ceodcd ; "1 also will and direct that my Jibovc 
 named sons W. & H. do not sell or transfer the 
 said property without tlie written consent of my 
 said wife during her life." The will was regis- 
 tered. After attaining tweiity-ono, 11. mort- 
 gaged his share without ills motiier's consent, to 
 the defendants ('. & M., who sold on default in 
 tho mortgage to the defendant <)., wlio purchased 
 as trustee for M., with full knowledge of the 
 state of the title. Ujioii a liill tiled by the heirs- 
 at-law : — Held, affirming the dceree of Hlake, 
 V. C, (■J7 <-'liy. 1(11,) that the restriction ujion 
 alienation was v.alid, and was a condition, the 
 broach of which worked a forfeiture, but that 
 the heirs took the land in (|uest,ion charged with 
 payment of the annuity and the legacies, 'riio 
 question whether tho mortgage was necessarily 
 a breach of the condition was raised in the argu- 
 ment, but not in tlie answer, and was not decided. 
 Eurk v. McAlpiiie, A. H. 145. 
 
 See Gwins v. Darnill, 27 Cliy. 502, p. 785. 
 
 17. Elfftion. 
 
 (a) Bif Heir. 
 
 Where, by a will, land is devised to an attest- 
 ing witness, there is an intestacy us to this devise 
 by virtue of the 26 Geo. II. c. (>, s. 1, and the 
 heir is not bound to elect as between this land 
 and a legacy bequeathed to him ])y the will. 
 Muime\, Liiidaaij, 1 O. U., Chy. I). WA. 
 
 18. Oiviiiij lUijht to I'liirhutie. 
 
 A testator directed that " in case any one of the 
 above named three legatees be able and willing 
 to buy the farm, as aforesaid, at the price of 
 $4,000, my executors hereafter named shall 
 
 I Ro sell said farm." Kach of tho three' legatees 
 j claimed the right to ])urcli;ise the farm ; jfi^ld, 
 i under tliese cin^nnistances, that the ext:ciitors 
 went jirei'luded from carrying out this direction 
 of tlu! will, and that they must sell tho estatu 
 and divide the priHteeds between the (larties 
 interested, aciiording to another provision of the 
 will. Jifiry v. Sroll, 27 Chy. 314. 
 
 The testator was seized of certain lands which 
 were Hiibject to incuinbrane(>s, and by his will 
 directed the sanio to be sold if his sons in suo- 
 eession should not redeem. One of tho scms. It,, 
 to whom the tirst privilege of redeeining was 
 given, availeil himself thereof, and redeemed tho 
 iii'operty, which was subject to certain charges 
 iiiipose(l by the will, in aililition to tho incuni- 
 brances : — Held, that the right to redeem was in 
 elfeet a right to jmrchase, as the mortgages and 
 charges createil by the will amounted to about 
 as much as tho land was wortii ; and that K. 
 had ae(|uired a good title free from any claim of 
 his brothers ; and hin brothers having instituted 
 proceedings against him claiming an interest in 
 tile estate that he was entitled to recover his 
 costs, not out of tho estate of the testator but 
 from tho idaintiUs personally. Sti'ovuson v. 
 Stcvi'iiwii, 28 Chy. 2;»2. 
 
 10. Void DfiriHflu or BcqiifHtfi, 
 
 (a) To /{fliijioiin or Chnrildhk Uaei*, 
 
 Three weeks before tho testator died he made 
 his will, whereby ho directed his lands to be sold, 
 and out of tho jtrocecds gave .S'JOOO to his widow 
 in lieu or dower and furtiier directed that "all 
 moneys then remaining in the hands of my exe- 
 cutors shall be divided l)et\veen the foUowing 
 funds," naming live ditl'erent charities in connec- 
 tion with the (laiiada I'resliytorian (,'hurch— such 
 "money to be divided in wliicbever way my exe- 
 cutors may think best": — Held, that the bo- 
 <|Uest8 to tho charities were void under tho 
 Mortmain Acts ; and there being no residuary 
 clause the be(|uests so failing to take effect wont 
 to the lieirs-at-law, not to the next of kin of tho 
 testator; costs of all parties to bo paid out of the 
 estate. Re Tni.st.t of John McDonuld'n inil, 29 
 Chy. 241. 
 
 Tho residuary estate in this case consisted of 
 mortgages, the beiiuest of which, under the 
 Mortmain Act, was ilcclared invalid, and to be- 
 long to the next of kin of the testator, the plain- 
 titt' in tho suit. T/ioiimm v. Torrance cJ, ai, 28 
 (.'hy. 253. Ainrmod !) A. R. 1. 
 
 A will dated the 1st April, 1880, contained 
 tliis clause:— "I will and desire that the residue 
 of my real and personal estate, being the sum of 
 S'2,800, more ou less, shall bo paid to the four 
 Churches of Kngland, in the townships of Orford 
 and Howard, in four eipial parts to eacli such 
 ciuirclii's ,xs follows : to Trinity ( Jliurch, Howard ; 
 St. John's Church, Morpeth; St. — —Church, 
 Highgate, and the propo.sod new church at Olear- 
 villo, and to be applied by my executorR in tho 
 payment of any delit or debts upon each of such 
 churches r(.s[iectivoly ; and in case of no debt, or 
 there being a balancu or residue after the pay- 
 ment of such debt or debts on each of such 
 churches, respectively, then the residue (if any) 
 is to be paid by my executors to the church- 
 
8T6 
 
 WILL 
 
 816 
 
 
 .3S 
 
 wardoiiH of such church, to bo liold by thoin In 
 
 truHt; nixl Hiiid niniiity is to be iiivt'stcil liy nunh 
 cliurcliwiirdiiirt, and tlic iiituicMf, aiisin^' tlicm- 
 froii) iH to bi; paicl to t\\n inciiinlii'iit of Haid 
 church aH n |iortioii of hiH Hulaty or Htipi'iid." 
 The tt'Htatiir died <>ii the lOth ot' tlie Hainc niontli. 
 Upon IV Hpccial inihu stated for the oiiininii of the 
 court, it was Hhewu that thcru was a hirgc! ihdit 
 t'xiMtin;,' on tlio ^^llr|H•th church for money lior- 
 roweil on niort^,M(,'e wherewith to |iay olV the 
 building (hd)t. 'I'iie elmrcli at Clhiarvilio was not 
 built at the time of the tewtator'H ih'atli, but some 
 debts were existing in respect of materials and 
 work on the foundation : -Held, (I) that the 
 mortjjagc dcl)ton tlu' Morpeth chiindi could not 
 bu considered as a buildbig (hibt; but if it could 
 be HO considered the bc((Uest to pay the same 
 Would 1)0 void, under the statutes of Mortmain. 
 (•J) That as to the dlearville church, which was 
 in course of erection, the building debts woidd 
 form a lien on the lands from the begininng of 
 tho work under the Mechanics' Lien Act, and 
 tho bo(|UeHt to pay oti' those dcbti' would thero- 
 foro bo Void, unless tho work was being ^ler- 
 formed in such a manner as excluded the creation 
 of a lion on the land, (lb Tiuit the biMiucst for 
 thi! bonctit of the incumbent would have l>een 
 void if the investm(;nt had been ilirected to be 
 made upon realty; but as tho trust nnght bo 
 carried out by investing in ]iersonalty the be- 
 quest was valid if so invested. (4) That the 
 amount to which the incumlient would bo enti- 
 tled was tho residue after deducting the void \h:- 
 quests for debts. St'imrl v. Ocvter, 2!) Chy. .S29. 
 
 A testator, a minister of _tho United Prc^sbj"- 
 terian Church of North America, after befjueath- 
 ing tSl.030 to the said <'hurch, iiroeeeded as 
 f(dloW8 : " J give for a .fcwish .Mission $1,000 to 
 that church w hich is soun<l and evangelical in 
 doctrine and [uire in worship, using the .songs of 
 praise, the inspirc'd liook which can unite all 
 nations," &c. The evidence shewed that this 
 description applied to tho s.aid church :— Held, 
 not void for uncertainty, for that the testator 
 clearly intended the said Church as the legatee. 
 Giincx et III. V. McCiiHfilii", 3 O. 1!., Cliy. 1). 
 203. 
 
 The testator then proceeded thus: "To the 
 pious poor converted .Tews that meet together for 
 the reading of thescrijitures for their instruction 
 and mental edification I leave .§1,000 :" - HeM, a 
 good charitable be(|Uest and not void for uncer- 
 tainty. Jh, 
 
 Lastly, the testator g.ave "the balance" of his 
 estate " to the poor and destitute, to supjily 
 their wants in food and raiment;" — Held, a valid 
 bequest so far as the residue consisted of person- 
 alty, and an inijuiry was directed to guide the 
 Court in the application of the fund. Ih. 
 
 A testator, after directing jiayment of hi.^ 
 debts out of his iiersonal ])r<pperty, or if that 
 shouhl prove insufficient, then, that so nnich of 
 his real estate as would supply the deficiency 
 might be sold for that purpose, went on to di- 
 rect that his huid should be sold, and the income 
 of the capital arising from the sale bo paid yearly 
 to his wife, for her maintenance during her natural 
 life, after which he gave a number of charitable 
 bequests and jjecuniary legacies, but made no 
 residuary gift :■ — HtM, that the testator had 
 created a mixed fund to answer the purposes of 
 
 his will, and if tho personalty was not sufBciont 
 for the payment of the debts, the legacies wore 
 payalili! out of the laiiil ; if it was sullicient, they 
 Were payable out of the mixed fund ; but so far as 
 the eharitabli! bequests were payable out of the 
 land tiiey were void : — Held, also, that interest 
 was p.'iyablt! on the legacitm from a year after the 
 testator's dcatii, in accordance with the general 
 rule, in any event ; and this, althougli as the 
 whole interest of tin: proceeds of tho land was 
 given to the wif(!,for life, the capital had to ))e 
 ke])t invested by the executors ; and, conse- 
 ((ucntly, there was no fund for tho payment of 
 legacies until her deatii. Tooini'i) v. Tracey, 4 
 {). R., Chy. 1). 708. 
 
 See Htui v. Tho Aiiiuml f'linfercnri' nf .Vcir 
 Uriimwich niiil Prinrr Eihrnril /nlmnl, (> S. C. U. 
 .TOH, J). 8()t) ; MrClntfiilimi v. Grey, 4 0. U. 3'2n, 
 pp. 100, 110. 
 
 ■ (b) To Atlrstliiii nitncsa. 
 
 A testatiu" devised laud, subject to a lease, to 
 .1. 11. in fee, and as to the rent directed h.alf to 
 be paid to J. H., and half to the executor in 
 trust for .L H. The executor, assuming the de- 
 vise to bo valid, paid all the rent to .1. H. The 
 latter executed a deed of tho laud to C. H., to 
 whom ho aftcrwarils paid the rent with tho 
 privity of tho executor, ns soon as he received it 
 from him. C. H. went into possession of tho 
 laud after the expiration of the lease, and had 
 been so receiving rent or in possossion for more 
 than ten years before action conimencied. J. H. 
 was a witness to the will : —Held, (allirndng tho 
 decision of l'rou<lfoot, .1.,) that tho devise of rent 
 was void under '_'."> (ieo, If. c. (!, s. 1, as J. H. 
 was the bendicial devisee of the wludo of it. flop- 
 kiii.i v. JJoi,kiii.s ,'t nl, 3 (). K., Chy. I). 'J23. 
 
 See Munsif v. LhuliKiy, 1 O. U. 164, p. 813. 
 
 (c) To ForviijH Slaf 
 
 A testator directed his execir pay and 
 
 deliver the residue of his estate ic> (lovorn- 
 
 meiit and lAigishiture of the Stati Vennon;, 
 to be disposed of as to them should sikmu 1" sfc, 
 having regard to certain recommendations M-t 
 fortli in tiio will : -Held, (alHrming the decree, 
 27 Chy. 3(il.) that the State was sulHciently de- 
 signated as the leg.itee to entitle it to take the 
 beijuest ; and the fact that tho beijuest was for 
 the benolit of, ami to take effect in a foreign 
 country, coulil not be urged as an objection to 
 its validity ; neither could the objection that the 
 State could not be made aineiiiible to tho Courts 
 of the State, and thus there would not bo any 
 supervision of the trusts, as it must bo assumo<l 
 that a sovereign St.ate W(mhl not do anything to 
 violate a trust ; besides, which it appeared tliat 
 the Legislature w.as not, in reality, to assume 
 the trust, their duty being to ajipoint trustees 
 who would be amenable to tli(! Courts : — Held, 
 also, that tho direction for accumulation did not 
 render the becpiest invali<l, it being for the Courts 
 in \'ermont to say whether the direc''in shouhl 
 bo carried out. Parkhurtit v. lioi/, 7 A. R. 
 (il4. 
 
 20. PvrpetuitkK. 
 Sec Parlchurat v. Roy, 7 A. R. 614, supra. 
 
HI7 
 
 WOIJDH AND TKKMS. 
 
 818 
 
 816 
 
 not RufTiciciit 
 IfUaciiis woru 
 idiciiiiit, tliuy 
 ; )mt 80 fur as 
 1)1(1 out of tlui 
 tliiit iiiteroHt 
 yi;ar nf tor thi^ 
 1 till! j^onoral 
 
 ilOllgh IIH till! 
 
 thu land was 
 ital lin<l to Ihi 
 ; ami, coiiHu- 
 lu iiayiiiuiit of 
 V. Truceij, 4 
 
 r(>nci' of X)'ii' 
 
 ,„i, a S. C. U. 
 , 4 O. H. 329, 
 
 t to a lunse, to 
 iroctoil lialf to 
 u executor in 
 luiiiiiin tlio do- 
 to.I. II. Tho 
 1.1 to C. H., to 
 •uiit with tho 
 ho focoived it 
 iHoHsioii of thu 
 IfaHo, and had 
 jssion for more 
 
 llOIIOOll. J. H. 
 
 , (allirniiiig tho 
 
 I! doviHo of rent 
 
 H. 1, as J. H. 
 
 lolo of it. flop- 
 
 y. I). -J-j;}. 
 
 104, p. 81:? 
 
 )iiiy and 
 I no (iovorii- 
 tc ..I Vernioir. , 
 luhl s< i!in \>- At, 
 iiiontlationH set 
 iiig the docroo, 
 
 sutliciontly dc- 
 
 it to tako tho 
 i)0(jucst was for 
 Bt in a foreign 
 an objection to 
 j cation that the 
 lo to the Courts 
 uld not 1)0 any 
 lust 1)0 assumed 
 
 do anything to 
 t appeared that 
 ility, to assume 
 .jipoint trustees 
 Courts :— Held, 
 lulation did not 
 ig for the Courts 
 ilirec' ■ -)n should 
 
 Ho,/, 7 A. K. 
 
 614, supra. 
 
 21. For/'iiliire ot IhvUe, 
 Km-l^ V. McAlphti; (1 A. K. 145, p. HUi. 
 
 V. Costs of CoNiKSTtNd and CoNHrmiiMi 
 Wii.i..t. 
 
 The rule is, that if there exist "snilicient and 
 reasonable ground, looking at thu kiiowleilge aii<l 
 means of knowledge of tlie oiiiiosiiig party, to 
 (juestiun either thu execution of a will or tho ca- 
 pacity of the testator, or to |)iit forward a charge 
 of undiiu iiilluciico or fraud, the losing party may 
 properly be relieved from thu costs of the success- 
 fill iiarty." This rule was acted upon, and tlu; 
 plaintiti relieved from costs in a case where tlie 
 plaintiir had seen the deceased the <lay after ttii! 
 will was executed, and found iiiiii very low and 
 unable to speak intelligil)ly, and where the ti'S- 
 tator had to several persons spoken approving- 
 ly of the conduct of the plaintill', a son of a 
 deceased brother, and had expressed himself in 
 such a nianneras induced the plaintill' and others 
 to believe that he would become a benelieiary un- 
 der his uncle's will, in which his name was not 
 muntionud, and which had been ])vepared at the 
 housu of thu widow of another brother of the tes- 
 tator, where he had for some time been residing, 
 and was taken ill and died, although at the hear- 
 ing thu plaintill's ease entirely failed in proof. 
 Maaiiilaij v. Kcm/i, 27 VAiy. 44'J. 
 
 Thu court onlered that thu costs in this case 
 should be paid by the respondents (executors anil 
 trustees of the will) out of the general residue of 
 thu estate of the deceased, but if the said residue 
 ahould have been distributed then thu said costs 
 should bu contr.buted by the persons who should 
 have receiveil portions of the said residue ratably 
 aocording to tho amounts of tho respective sums 
 receiveil by thum. Fither v. Amlcrnon, 4 iS. 
 C. R. 406, 429. 
 
 VI. Ml.SCELI,ANE0U3 CaSES. 
 
 Forfeiture of legacy by executor. Soo Ken- 
 nedy V. Piiujle, 27 Chy. 305, p. 274. 
 
 Where one to whom a devise prima facie 
 beneficial to him is made, neither aocepta nor re- 
 jects the same, but remains passive, ho will bo 
 prciun I to accept. He Defoe, 2 0. 11., Chy. 1). 
 623. 
 
 f'ee Be Bender, 8 P. R. 399, p. 332 ; Be Dun- 
 ham, 19 Chy. 258, p. 433 ; Cameron v. Campbell, 
 7 A. R. 361, p. 439. 
 
 WITNESS. 
 
 See Evidence. — Will. 
 
 WORDS AND TERMS. 
 
 I. Maxims —See Maxims. 
 
 II. In Act.s Relating to Controverted 
 Elections — See Parliamentary 
 Elections, 
 
 III. 
 
 WlLLS- 
 
 52 
 
 -6'«c Wills. 
 
 " AiTording to tho present practice of tho 
 Court of Chancery."-- See liitrker v. Fu)~ie, 9 P. 
 11. H3, p. 765. 
 
 "Adverse claim." -Soo O'drady v. AfcC(\f- 
 //((//, 2 (). H. 309, p. 195. 
 
 "Adjoining local municipality." — See Be 
 (,'ii/liriio mill TiiiviiKliij) of Icoelieilcr, 46 Q. B. 
 279, p. 488. 
 
 "Alleged."— See OkWo/i v. Grand Trunk B. 
 ir. Co., 28 Chy. 428, p. 618. 
 
 " AsHumed." -See Ownlon v. Grand Trunk B, 
 n\ Co., 28 Chy. 428, \t. ()18. 
 
 " IJazaar patterns."— Sue MeCall v. T/ieal, 28 
 C;hy. 48, p. 345. 
 
 " Ho the same more or less."- See Nellei v. 
 W/,il>; 29 Chy. 338, p. 29. 
 
 " Honus." -Sec ScollUh Amfrirun InveMmi'tit 
 Co. V. The Villaij,' o/ Elura, 6 A. R. 628, p. 486. 
 
 ' ' Change, "—See Gill v. Canada Fire and 
 Afarinr Ins. Co.. 1 O. I{. 341, p. 360. 
 
 "Contract." — See Smith v. //arrimjlon, 29 
 Chy. 502, p. 62. 
 
 " (Jontnvetor. "— Soo Pelrie v. Hunter, 2 (). R. 
 233, p. 420. 
 
 " Decision."— Sec Danjou v. Mar<iuii<, 3 S. C. 
 |{. 251, p. 262. 
 
 " Doiniso." " Demise and lease." — See Spearn 
 V. Miller, 32 C. P. 661, p. 234. 
 
 " Due diligence."— See Meillv. Travellers Ins, 
 Co., 31 C. P. 394, p. 381. 
 
 " Kiroctually prosecute." — See International 
 nriili/e Co. V. Canada Southern B. W. 'Jo., 9 P. 
 R. 250, p. 658. 
 
 "Either party." — See McLean v. Tfiompson 
 etal., 9 P. R, 553, p. 765. 
 
 "Execution creditors." — See Maejie v. Hunter, 
 9 P. R. 149, p. 217. 
 
 "Feloniously." — See Beijina v. Oough, 3 0. 
 R, 402, p. 187. 
 
 " Felony, to wit larceny." — See Betjina v. Mc- 
 Ilulme, 8 P. R. 452, p. 21. 
 
 " Fieri facias." — See Macfie v. Hunter, 9 P. 
 R. 149, p. 217. 
 
 "Forthwith" in sec. 3, of 43 Vict., c. 58 
 (D), means after the meeting of the provisional 
 directors, and not forthwith after the passing of 
 the Act. McLaren v. Fisken, 28 Chy. 352. 
 
 "From." — See In re Bronson and the City of 
 Ottawa, 1 0. R. 415, p. 692. 
 
 " From and after." — See In re Mc Alpine and 
 the TownMp of Euphemia, 45 Q. B. 199, p. 662. 
 
 "Given security before a judge." — See Be 
 Union Fire Ins, Co., 7 A. R. 783, p. 151. 
 
 " Good merchantable timber." — See Clarke v. 
 White, 3 S. C. R. 309, p. 756. 
 
 " Grocery." — See Nicliolson v. Phanix Ins. Co., 
 45 Q. B. 359, p. 355. 
 
 " Highest court of final re8ort."~See Danjou 
 V. Marquis, 3 S. C. R. 251, p. 446. 
 
819 
 
 WDllK AiND LAIiUUK. 
 
 620 
 
 IK 
 
 r 
 
 
 " Iiiiprlsonment." — See Hwhje v. The Queen, 
 9 App. Cas. 117, p. 120. 
 
 "In bond."- See Afny v. Security Loan cC- 
 ■Suuhuja Co., 45 Q. B. 100, p. 88. 
 
 " In the premises." — 8oe Vo(i.'l v. Grand 
 Trunk It W. Co., 2 O. K. 197, p. «85. 
 
 "Incendiarism."— See Camphfll v. Victoria 
 Mutual Fire Ins. Co., 45 Q. B. 412, p. 362. 
 
 " Income."— See Lawlena v. Sullivan, G App. 
 Cas. 373, p. 24. 
 
 "Judge."— See In re Leibei v. Ward, 45 Q. 
 B. 375, p. 220. 
 
 " Lands, mines, minerals and royalties." - See 
 The Attorney General of Ontario v. Mercer, 8 
 App. Cas. 767, p. Vzl. 
 
 " Lien-holdsrs of the same class." — See Mc- 
 Pherson v. Gedfje, 4 O. H. 240, p. 420. 
 
 " Loan of Money."— See Bank of Toronto v. 
 Beaver d- Toronto Mutual Ins. Co., 28 Chy. 87, 
 p. 373. 
 
 "M. D."— See Keijina v. Ttifl, 45 Q. B. 144, 
 p. 452. 
 
 " May."— See Aitchenon v. Mann, 9 P. R. 473, 
 p. 587. 
 
 "Middle of the main channel." — See Tfcywrt 
 V. The Corporation of the County of Carleton, 1 
 0. K. 277, p. 792. 
 
 " Mode of chance." — See Rer/ina v. Dodda, 4 
 0. R. 390, p. 309. 
 
 "Mortgagee in possession." — See Court v. 
 Holland, 29 Chy, 19, p. 460. 
 
 " Next sittings of the court." — See Chapman 
 V. Smith, 32 C. P. 555, p. 633. 
 
 " Not less than thirty days' notice." — See Na- 
 tional Ins. Co. V. Egleaon, 29 Chy. 40(?, p. 136. 
 
 "Not otherwise or elsewhere." — See Court v, 
 Scott, 32 C. P. 148, p. 397. 
 
 "Northwards." — See/Vrj/(wo» v. Freeman, 27 
 Chy. 211, p. 201. 
 
 " On demand." — See Daviea v. Ftinaton, 45 Q. 
 B. 369, p. 253. 
 
 " On view."- See Moival v. McFee, 5 S. C. R 
 66, p. 281. 
 
 " Opposite or interested party in the suit." — 
 See Wataon v. Severn et al., 6 A. R. 559, p. 260. 
 
 "Party adverse in point of interest." — See 
 Moore v. Boyd, 8 P. R. 413, p. 247. 
 
 "Party interested." — See I^iighea v. Hughes, 
 6 A. R. 37n, p. 275. 
 
 " Personal Wrongs. " — See Benimjer v. Thrash- 
 er, 9 P. R. 206 ; 1 O. R. 313. 
 
 " Premises." — See Saylor v. Cooper 2 0. R. 
 398, p. 78T. 
 
 "Profits."— See Worbnan v. Robh, 7 A. R. 
 389, p. 425. 
 
 " Purely money demand." — See Gowanlock v. 
 Manna, 9 P. R. 270, p. 181 ; Green v. Hamilton 
 Provident Loan Co., 31 C. P. 674, p. 469. 
 
 Sale of gooda " to arrive."— See f/eury v. Cop- 
 /cm<, 46Q. B. 36, p. 714. 
 
 "Seal."— See He Bell and Black, 1 0. R. 12.5, 
 p. 201. 
 
 "Shareholders." — See Hendrie v. The Grand 
 Trunk li. W. Co. of Canada, 2 O. R. 441, p. 687. 
 
 "Special business."- -See Marah v. Huron 
 CoUe.jv, 27 Chy. 605, p. 146. 
 
 " Special circumstance."- "^ee Attorney and 
 Solicitor, VI. 2 (b), ij. 44. 
 
 " There be no representatives admitted 
 amongst collaterals after brothers' and sisters' 
 children." — See Crowther et al. v. Cawthra et 
 al, 1 O. R. 128, p. 208. 
 
 "Traction engines." — See Corporation of the 
 County of Yurk v. The Toronto Gravel Road and 
 Concrete Co., 3 O. R. 584, p. 129. 
 
 "Trade and commerce." — See Constitutional 
 Law, II. 2, p. 115. 
 
 ' ' 'i'rader. "—See Bankruptcy and Insolvency, 
 II. 2, p. 55. 
 
 " Transient trader. " — See Reginav. Cuthbert, 
 45 Q. B. 19, p. 490. 
 
 " Travellers."— See Regina v. Daggett, 1 0. R. 
 537, p. 744. 
 
 " Unlawful act." — See Neill v. Travellers Ins, 
 Co., 31 C. P. .394, p. .381. 
 
 " Upon payment of costs." — See Stuart v. 
 Branlon et al., 9 P. R. 566, p. 165. 
 
 "Vendor."— See Wilmot v. Stalker, 2 0. R. 
 78, p. 717. 
 
 "Vessel to go out in tow." — See The Provin- 
 cial Ins. Co. of Canada v. Co.inolly, 5 S. U. R. 
 258, p. 382. 
 
 " \ oiuntary." — See Stewart et al, v. Tremain 
 et ai., 3 O. R. 190, p. 299. 
 
 " Warrant of erocution."— See Macfiey. Hun- 
 ter, 9 P. R. 149, p. 217. 
 
 " Whether such ships or vessels be at home 
 or abroad at the time ci assessment." — See City 
 of Halifax v. Kenny, 3 S. C. R. 497, p. 737. 
 
 " With intent to do grievous bodily harm.' — 
 See Regina v. Boucher, 8 P. R. 20, p. 187. 
 
 " AVith or without security." — See O'Brien tt 
 al V. Clarkaon.. 2 0. R. 525, p. 54. 
 
 "Wrongful." — See Hopkins v. Hopkins et al, 
 3 0. R. 223, p. 436. 
 
 WORK AND LABOUR. 
 I. Extras, 820. 
 II. Performance, 821. 
 III. Remuneration, 822. 
 
 I. Extras. 
 
 The suppliant engaged by contract under seal, 
 dated 4th December, 1872, with the minister of 
 public ^vnrks, to construct, finish and complete, 
 for a lump sum of 1(78,000, a deep sea wharf at 
 Richmond station at Halifax, N. S., agreeably 
 to the plans in tho engineer's offioe ana apecin- 
 
820 
 , 1 0. R. 125, 
 
 The Grand 
 %41, p. 687. 
 
 h V. Huron 
 
 rrOBNKY AND 
 
 es admitted 
 ' and siatera' 
 r. Cmvthra et 
 
 >ratioii of the 
 ivel Road and 
 
 nstitutional 
 ) Insolvency, 
 a V. Cuthbert, 
 aggett, 1 0. R. 
 Travellers Ins. 
 iee Stuart v. 
 '.Iker, 2 0. R. 
 
 i The Provin- 
 'lij, 5 g. U. R. 
 
 •xl. V. Tremain 
 
 Mac/lev. Hun- 
 
 a be at home 
 nt."— See CUy 
 »7, p. 737. 
 
 (dily harm.' — 
 p. 187. 
 
 See O'Brien el 
 ffopkins et al. , 
 
 JR. 
 
 act under seal, 
 the miniater of 
 and oouiplete, 
 p sea wharf at 
 . S., asreeablpr 
 oe andapecih- 
 
 821 
 
 UUllK AND LABUUII. 
 
 822' 
 
 cationa, and with such directions as sliould be 
 given by the engineer in chanio during the jiro- 
 fjresa of the work. Hy the 7tli eliiusc of the con- 
 tnict no extra work eouhl be performed, unless 
 '' irdercxl in writing by the engineer in charge 
 before the executioii of the work." 15y letter, 
 ,'ated 2Gth August, 1873, the minister of public 
 works authorized the suppliant to make an addi- 
 tion to the wharf by the erection of a f uperstruc- 
 ture to be uaed as a coal Hoor, for tlic additional 
 sum of ^18,400. Further extra work wliich 
 araonnte(l to §"2,781, was performed under 
 another letter from tlie public works depart- 
 ment. Tlie work was completed end on the 
 fin.al eertilicate of the government engineer in 
 charge of the works, the sum of $!),(>8i, as the 
 balance due, was paid to the suppliant, who gave 
 the following receipt, dated 30th April, 187."> : 
 "Received from tlie Intercolonial rai'.wi\y, in 
 full, for iiU amounts against the government for 
 works under contract, as follows : ' Richmond 
 deep water wharf works for storage of coals, 
 worK for bracing wharf, reliuilding two stone 
 cribs, the sum of $ ." The suppliant sued 
 
 for extra work, which he alleged was not cov- 
 ered by the payment made on the 30th April, 
 1875, and also for damages caused to him by de- 
 ficiency in and irregularity of payments. The 
 petiti')n was dismissed with costs ; and a rule 
 nisi for a new trial was subsecpiently moved for 
 and discharged : — Hehl, alHrming tlie judgment 
 of the court Ijelow, that all the work performed 
 by the suppliant for the >j.)veriiiiient was either 
 contract work within the plans or specifications, 
 or extra work witliin the meaning of the 7th 
 clause uf the contract, and that he was paid in 
 full the contract price, and also the price of all 
 extra work for wliich he could produce written 
 authority, and that written ivuthority of the en- 
 gineer and the eatiriute of tlie value of the work 
 arc couditiona precedent to the right of the aui)- 
 pliant to recover payment for any other extra 
 work. (Henry, J., dissenting.) O'Brien v. T/ir 
 Queen, 4 S. C. R. 529. 
 
 Per Ritchie, C. J. , that neither the engineer, 
 nor the clerk of the works nor any subordinate 
 otHcer in charge of any of the works of the Domi- 
 nion of <^anada, have any power or authority, 
 express or implied, under the law to bind the 
 Orown to any contract or expenditure not speci- 
 ally ivuthoi'ized by the express terms of contract 
 duly entered into between the Crown and the 
 contractor according to law, and then only in the 
 apecitic manner provided for by the express terms 
 of the contract. Jb. 
 
 II. Performanib. 
 
 L. sued N. et al. to recover from them, under 
 Biiecially endorsed writ, the balance of account 
 duo under and in pursuance of an agreement 
 under aoal providing that " L. waa to run accord- 
 ing to his best art and skill a tunnel of 200 feet 
 for the sum of ^ per running foot ; that §150 
 ahould be advanced on account of the contract, 
 tlie balance to be paid on the satisfactory ooni- 
 pletion of the work." L. made Kve tunnels, none 
 of which were 200 feet, but claiiiied he Inul done 
 in all 204 feet. In addition to the count on the 
 agreement the plaintiff inserted in his declara- 
 tion the common counts for work and labour : — 
 Held that there was not a ButKoiout fulHlinont of 
 he agreement, and inasmuch as L. hadgiveu no 
 
 particulars nor any evidence under the indebi- 
 tatus counts, tlie rule absolute of the court he- 
 low, ordering judgment to be entered for the 
 defendants, sliouhl be atfirnied and the appeal 
 dismissed with costs, Litkiu v. NnUull, 3 S. C. 
 \\. ()85. 
 
 Where a contractor for the building of a house 
 made default in carrying on the work, and, in 
 cons(H|uence, tlie owner, acting under a clause 
 in tiie contract to that e&ect, dismissed him, 
 and agreed verbally with a sub-contractor, who 
 had been employetl by the contractor, that if the 
 sub-contractor would go on and finish the work 
 he, the owner, would i)ay him :— Held, that the 
 sub contractor was entitled to a lien for all work 
 done under sueli agreen . .c as a "contractor," 
 and as to such work he wi; no longer in the posi- 
 tion of a sub-contractor : — Held, also, that the 
 sub-contractor, acting under such an agreement, 
 was not bouiul by clauses contained in the origi- 
 nal contract with the dismissed contractor, pro- 
 viding for forfeiture, &c. Pefrie v. Hunter et al. ; 
 Guenl et al. v. Hunter et al, 2 O. R., Chy. D. 233. 
 
 See next sub-head. 
 
 III. Remuneration. 
 
 The defendant .agreed with the plaintifls to 
 sink an artesian well at seventy-tive cents a foot. 
 After sinking a distance of IGO feet, he met with 
 an impedinii'iit, and refused to proceed further ; 
 — Held, reversing the decision of the County 
 Court, that he waa entitled to be paid for the 
 work done, as the evidence did not shew an 
 agreement that he should receive nothing unless 
 he succeeded in finding water. Quare, whether 
 evidence as vo how contr.icts for artesian wells 
 were usually' ma<le in Barrie should have been 
 received. The. Barrie Gas Co. v. Sullivan, 5 A. 
 R. 110. 
 
 Held, tliat tlie nonproduction of an architect's 
 certificate approving of the woi'k done, though 
 retpiired by tlie contract with the dismissed con- 
 tractor, as a condition precedent to payment, 
 did not preclude the sub-contr.actor from recover- 
 ing under the verbal agreement, provided the 
 work was so done as to morally entitle him to 
 such certificate, following Lewis v, Hoare, 44 L. 
 T. N. S. (j(). Pctrie v. Hunter el al.. Quest et aL 
 V. Huvter et al., 2 O. R., Cliy. D. 233. 
 
 It was stipulated that twenty per cent, of 
 the contract ]irice should not be payable until 
 thirty days after the architect should have 
 accepted the work, and thitt the balance of the 
 contract price so to be retained bould not be 
 payable until all the sub-contractors were fully 
 paid and settled with: — Held, 1. That no trust 
 was thereby created in favour of the sub- 
 convractors as to the sum agreed to be retained; 
 and the contractor having assigned his interest 
 in the contract to a third party, and the com- 
 mittee having waived their right to insist that 
 the subcontractors should be paid ; — Held, 1. 
 That the assignee was entitled to receive the 
 twenty per cent, to the exclusion of the sub- 
 contractors. Forhan v. Lalonde, 27 Chy. 600. 
 
 As to recovery of work done if expenditure 
 unauthorized by parliament. See Wood v. The 
 Queen, 7 S. C R. 634, p. 606. 
 
823 
 
 Certificate of engineer aa aconditionprecedent 
 to right of recovery. See IshtaUr v. The Quern, 
 7 S. 0. R. 696, p. 595; Jones t. y/te Qwen, 7 S. 
 C, R. 570, p. 594. 
 
 See McDonald v. Oliver et ai, 3 0. R. 310, p. 
 128. 
 
 WRIT OF ARREST. 
 
 Y. Nr Exkat— <S'ee Ns Exeat. 
 
 824 
 
 WOUNDING. 
 S^ee Criminal Law. 
 
 WRITS. 
 I. Of Arbkst— See Writ of Arresi. 
 II. CAPIA.S— 5'ee Arrest. 
 
 III. Of Execution— -See Execution. 
 
 IV. Of Summons— .See Practice. 
 
 VI. Quo Warranto— See Municipal Cor- 
 porations. 
 
 VH. 
 
 Revivor — See 
 
 VIVOR. 
 
 SoiBB Facias and Re- 
 
 VIII. Scire Facias— See Scire Facias and 
 Revivor. 
 
 WRIT OF ARREST. 
 
 A writ of arrest will not be panted against 
 the purchaser in a suit for specihc performance, 
 unless it be shewn by affidavit that the vendor's 
 lien is insufficient. NeUon v. Dafoe, 8 P. R. 
 332.— Proudfoot 
 
 Where, under a writ of arrest a caption takes 
 place, the sheriff is entitled to a bond for double 
 the amount marked upon the writ. Needkam v. 
 Needham, 29 Chy. 117. See S. C, p. 328. 
 
 
 g- 
 
824 
 
 SXEAT. 
 
 t Municipal Cor- 
 B Facias and Rk- 
 SciBB Facias and 
 
 RREST. 
 
 b be eranted against 
 specihc performance, 
 ^vit that the vendor's 
 n V. Dafoe, 8 P. R. 
 
 .rrest a caption takes 
 , to a bond for double 
 le writ. Needham v. 
 ee S. C, p. 328.